Delhi District Court
Central Bureau Of Investigation vs A-1 Dinesh Sharma on 9 September, 2021
IN THE COURT OF SPECIAL JUDGE (P. C. ACT) (CBI-20) : ROUSE
AVENUE DISTRICT COURT : NEW DELHI
CC No. 43/19(1/16)
(CNR No. DLCT11-000093-2019)
R.C No. SIA/2002/E0004/SIU-IX
U/s 120-B r/w 420/406/409/468/471/255/256/257 IPC
and U/S 13(2) read with Section 13(1)(c) & 13(1)(d) of the
Prevention of Corruption Act, 1988.
Central Bureau of Investigation
5B, 3rd Floor, CGO Complex,
New Delhi.
Versus
A-1 Dinesh Sharma
S/o Sh. Lajja Ram Sharma,
Prop. Of M/s Abhishek Enterprises,
92-A, Prateek Market, Munirka,
New Delhi-67
R/o C-7/148, Samboli Extension,
Nand Nagri
Delhi 110 083 Accused No. 1
A-2 Gajender Kumar Sharma
S/o Sh. Lajja Ram Sharma
R/o C-7/148, Samboli Extension,
Nand Nagri, Delhi-03. Accused No.2
A-3 Yogender Kumar Sharma
S/o R.S.P. Sharma,
1319, Gandhi Colony, NIT,
Faridabad.
Village Sulema Pur,
P.O. Shivrampur, Distt.,
Varanasi, (UP). Accused No. 3
Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 1 of 197
A-4 Rajiv Kumar Srivastava
S/o Sh. Awadh Narain Srivastava,
R/o B-1059/B, GTB Nagar,
Karele Scheme, Allahabad-16(UP) Accused No.4
A-5 Umesh Kumar Singh
S/o Sh. Vijay Shankar Singh,
Vill. Todapur, P.O. Raja Talab
Distt., Varanasi (U.P) Accused No.5
A-6 Tariq Mohammad
S/o Jamail Ahmed,
R/o 14/150, Mohalla Sarai Sultani,
Aligarh (UP) Accused No.6
A-7 Zile Singh Kasana
(since deceased as per order dt. 13.09.2019)
S/o Sh. Raghubir Singh
R/o Vill. Mohmood Pur,
P.O. Aurangabad, Ristal,
(Postal Assistant)
Hapur Head Post Office. Accused No.7
A-8 Inderpal Singh Yadav
Postal Assistant
S/o late Sita Ram Yadav,
R/o P-6, Gali No.5,
Gurunanak Pura,
Modi Nagar,
Distt. Ghaziabad (U.P),
Hapur Head Office,
Hapur (UP) Accused No.8
A-9 Mahender Kumar
Postal Assistant
S/o Sh. Nabhu Singh,
R/o K-996, Jahangirpuri,
Delhi-33,
Okhla Industrial Estate Post Office,
New Delhi Accused No.9
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A-10 Om Prakash Sharma
Postal Assistant
S/o Sh. Banwari Lal Sharma
HPO Ghaziabad,
R/o D-44, Sec.11,
Vijay Nagar, Ghaziabad Accused No.10
A-11 Brij Dev Goswami
(since deceased as per order dt. 04.02.2021)
Asstt. Post Master,
S/o Sh. S.D. Goswami,
HPO Ghaziabad,
R/o H.No. 97, Sec. 23,
Sanjay Nagar, Ghaziabad. Accused No.11
Date of registration of FIR : 19.03.2002
Date of filing of Charge-sheet : 26.07.2003
Arguments completed on : 18.03.2021/31.08.2021
Date of judgment : 09.09.2021
Sh. Pramod Singh, Ld. PP for CBI
Sh. S. Prasad, Ld. Counsel for A-1 to A-6 and A-9
Sh. Ashutosh Kumar Goyal, Ld. Counsel for A-8 and A-10
JUDGMENT
Brief facts of the case:
1. Accused Dinesh Sharma (A-1), accused Gajender Kumar Sharma (A-2), accused Yogender Kumar Sharma (A-3), accused Rajiv Kumar Srivastava (A-4), accused Umesh Kumar Singh (A-5), accused Tariq Mohamad (A-6), accused Zile Singh Kasana (since deceased) (A-7), accused Inderpal Singh Yadav (A-8), A-9 Mahender Kumar (A-9), accused Om Prakash Sharma (A-10) and accused Brij Dev Goswami (since deceased) (A-11) were charge-sheeted by CBI pursuant to a case Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 3 of 197 registered on 19.03.2002 against these accused persons on the basis of a written complaint dated 06.02.2002 received from Sh. Vineet Mathur (PW1), Assistant Director General (INV.I), Department of Posts, Dak Bhawan, Sansad Marg, New Delhi 110 001.
2. The allegation against the accused persons as disclosed from charge sheet is that they entered into a criminal conspiracy to cheat the Postal Department by mailing bulk mail of M/s Escort Ltd., Faridabad by using counterfeit die in the franking machine. In pursuance to this criminal conspiracy, the accused persons arranged counterfeit franking die for franking Annual Reports of M/s Escort Ltd. for the year 2000-01 and mailed them through Kaushambi Post Office, Ghaziabad, in connivance with postal staff. Sixteen demand drafts issued by M/s Escort Ltd. for the purpose of recharging/filing the franking machine, in favour of Senior Post Master, Ghaziabad, were deposited in three postal saving bank accounts opened by the accused persons in connivance with the postal staff of Kaushambi Post Office and Mukund Nagar Post Office, Ghaziabad (UP) and thereby the Postal Department was cheated to the tune of Rs. 14,59,657/-.
3. Investigation conducted by CBI revealed that accused Dinesh Sharma (A-1), Proprietor of M/s Abhishek Enterprises, F-93/1, Katwaria Sarai, New Delhi was in the mailing business. Accused Dinesh Sharma obtained a franking license No. DL-05/0199/99 dated 16.09.1999 in the name of his proprietorship concern M/s. Abhishek Enterprises. The license was issued by Senior Superintendent Post Offices (in short SSPO), Chanakyapuri, New Delhi. The mailer M/s Abhishek Enterprises was allotted Post Office Chanakyapuri as the filing station of the franking machine i.e. to say recharging of the franking machine and Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 4 of 197 CPO-1 and CPO-II post offices for dispatch of the dak duly franked by this proprietorship concern. This license was canceled on 16.12.2001 and the Franking Machine bearing meter unit No. PB-5235 was seized by Sh. Rajbir Singh (PW2), ASPO Chanakyapuri. It is stated that accused Gajender Kumar Sharma (A-2), the elder brother of accused Dinesh Sharma (A-1), was managing all the affairs of M/s Abhishek Enterprises.
4. Investigation further revealed that the accused Gajender Kumar Sharma (A-2) had purchased another Franking Machine bearing meter Unit No. PB 5507 (PBA 900. M.C.) vide invoice No. 89 dated 16.06.2000 in the name of his firm M/s. G.K.S Services, Dabua Colony, Faridabad and had applied to The Superintendent, Post Office, Faridabad for franking license but The Superintendent, Post Office, Faridabad disallowed the request of accused Gajender Kumar Sharma (A-2) for issuing a mailer license for above mentioned franking meter unit No. PB 5507. Hence, this franking meter unit was lying unused with him.
5. Investigation also revealed that M/s Abhishek Enterprises got a contract of mailing from M/s Escort Ltd. Shri Vinod Dixit, DGM, Escort Ltd., Faridabad had assigned to M/s Abhishek Enterprises the work of dispatching Annual Reports of Escort Ltd., for the year 2000-2001, to the share holders of Escort Ltd..
6. The investigation further revealed that during the period from August 2001 to December 2001, accused persons namely Dinesh Sharma (A-1), Gajender Kumar Sharma (A-2), Yogender Kumar Sharma (A3), Rajiv Kumar Srivastava (A-4), Umesh Kumar Singh (A-5) and Tariq Mohamad (A-6) along with the postal employees namely Zile Singh Kasana (A-7), Inderpal Singh Yadav (A-8), Mahender Kumar (A-9), Om Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 5 of 197 Prakash Sharma (A-10), Brij Dev Goswami (A-11) entered into criminal conspiracy, to cheat the postal department by mailing the bulk dak of M/s Escort Ltd., Faridabad by preparing a counterfeit franking die and by using the said counterfeit franking die to dispatch the franked envelops of M/s Escort Ltd. containing Annual Reports, from the Ghaziabad Post Office. They further obtained 16 demand drafts from M/s Escort Ltd. by submitting forged letters and encashed the said demand drafts in violation of rules of the Postal Department.
7. Investigation further revealed that in pursuance of their criminal conspiracy, the accused Gajender Kumar Sharma (A-2) informed Shri Vinod Dixit, DGM, Escort Ltd., Faridabad that the mails would be dispatched from Ghaziabad Post Office. Subsequently, accused Gajender Kumar Sharma (A-2) obtained a letter dated 23.08.2001 from Shri. Vinod Dixit, DGM Escort Ltd. addressed to Sub-Post Master, from Ghaziabad for granting permission for mailing the annual reports from Ghaziabad. In response to this letter, accused Gajender Kumar Sharma (A-2) submitted one letter dated 23.08.2001, purported to have been issued by Sub-Post Master, Ghaziabad, vide which permission was granted for mailing the annual reports of M/s Escort Ltd. w.e.f 27.08.2001 to 30.08.2001.
8. It is further alleged that in pursuance to the criminal conspiracy, accused Gajender Kumar Sharma (A-2) used meter unit No. P.B. 5507 for franking of the Annual Reports of M/s Escort Ltd. Faridabad during August/September 2001. For this purpose, he (A-2), at the instance of Yogender Kumar Sharma (A-3), got prepared a counterfeit franking die from the accused Tariq Mohd. (A-6) of Aligarh, through Sh. Vijay Kumar Sharma @ Khan (PW-26). The accused Tariq Mohammad (A-6) Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 6 of 197 was the authorised agent for M/s Kilburn Refrographics Ltd. to prepare franking dies for franking machines sold by M/s Kilburn Refrographics Ltd only on their written instructions. Accused Tariq Mohammad (A-6), without any written instructions, prepared counterfeit round die with license no. "VMS UP 23/0047/99 Ghaziabad-245201" and counterfeit rectangular value die with franking machine No. PB-4235. Investigation further revealed that the License No. UP-23/0047/99, was actually issued to M/s Rashtriya Sahara Press, Noida by SSPO, Ghaziabad. Investigation also revealed that no such license No. VMS UP-23/47/99 was ever issued. Investigation further revealed that Franking Machine meter unit No. PB-4235 had actually been sold to M/s Steering Gear (India), Ltd. Vill. Budrak, Poona (Maharashtra) by M/s Kilburn Office Automation Ltd. The counterfeit dies which were prepared by accused Tariqu Mohammad (A-6) were used in franking the mails of M/s Escort Ltd at a hired premises-shop (tin shed) No. 1035, Techno Plaza, near Toyota Show Room in Ghaziabad.
9. Investigation further revealed that accused Zile Singh Kasana (A-8), the then Sub-Post Master, Kausambi, in connivance with the accused persons, used to send the postal vehicle to the hired premises at 1035, Techno Plaza, near Toyota show room in Ghaziabad where the mails of M/s Escort Ltd. were franked. Accused Y.K. Sharma (A-3), assisted by Umesh Kumar (A-9), used to prepare the dak bags and paste the destination slip on them. After preparation of the bags, the same were loaded in the postal vehicle and transported to a rented room in village Gajipur (Delhi) for storage. Then these mails were dispatched to their respective destination through Post Office Kausambi in connivance with accused Zile Singh Kasana (A-8).
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10. Investigation further revealed that letter dated 04.09.2001 was actually forged and written by accused Mahender Kumar (A-9) in favour of M/s Escort ltd., Mathura Road, Faridabad-5. It was purported to have been issued by Deputy Post Master, Ghaziabad. Vide this letter, M/s. Escort Ltd. was intimated that their Annual Reports, 88171 in number, had been received by Deputy Post Master, Ghaziabad on 1 st, 3rd and 4th of September 2001. Accused Mahender Kumar (A-9) had also forged the letter dated 23.08.2001 addressed to Sh. Vinod Dixit of Escort Ltd. wherein it had been intimated, on behalf of Sub-Post Master, Ghaziabad, that arrangement for dispatching the Annual Reports had been made during the period 27.08.2001 to 30.08.2001. During investigation, it was confirmed that there was no post office headed by either Sub-Post Master, Ghaziabad or Deputy Post Master, Ghaziabad in Ghaziabad Division.
11. Investigation further revealed that on the request of accused Gajender Kumar Sharma, the following 16 account payee demand drafts were issued by M/s Escort Ltd., Faridabad in favour of Senior Post Master, Ghaziabad for filing the franking machine for the purpose of mailing their annual reports:-
No. Date of DD Amount Date of
payment
505546 29/08/2001 Rs. 1,00,000/- 03/09/2001
505547 29/08/2001 Rs. 1,00,000/- 11/09/2001
505548 29/08/2001 Rs. 1,00,000/- 07/09/2001
505549 29/08/2001 Rs. 20,000/- 07/09/2001
505555 01/09/2001 Rs. 1,16,000/- 15/09/2001
505556 01/09/2001 Rs. 63,657/- 05/09/2001
505557 01/09/2001 Rs. 1,00,000/- 10/09/2001
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505558 01/09/2001 Rs. 1,00,000/- 10/09/2001
505559 01/09/2001 Rs. 1,00,000/- 19/09/2001
505560 01/09/2001 Rs. 1,00,000/- 19/09/2001
505561 01/09/2001 Rs. 1,00,000/- 14/09/2001
505562 01/09/2001 Rs. 1,00,000/- 14/09/2001
505563 01/09/2001 Rs. 1,00,000/- 20/09/2001
505564 01/09/2001 Rs. 1,00,000/- 20/09/2001
505565 01/09/2001 Rs. 1,00,000/- 18/09/2001
505566 01/09/2001 Rs. 60,000/- 07/09/2001
12. These above mentioned 16 drafts were issued from the Current A/c No. 25344159 of M/s Escort ltd. with the Standard Chartered Grindlays Bank, Connaught Place, New Delhi. On receipt of instructions from M/s Escort Ltd., Standard Chartered Grindlays Bank approached State Bank of Saurashtra, Connaught Place, New Delhi and got issued these 16 demand drafts payable at State Bank of Saurashtra, Shastri Nagar, Hapur Road, Ghaziabad. These 16 demand drafts were handed over by Shri Vinod Dixit of M/s Escort Ltd to accused Gajender Kumar Sharma (A-
2), who was a regular mailer of Escort Ltd., for onward submission to Senior Post Master, Ghaziabad in order to get the franking machine charged/ filled. Since the mails were unauthorizedly dispatched through Kausambi Post Office in connivance with accused Zile Singh Kasana (A-7), no amount was deposited with the Post Office. Investigation further revealed that these 16 demand drafts were encashed by accused Gajender Kumar Sharma (A-2), Y.K. Sharma (A-3), Mahender Kumar (A-9) and Umesh Kumar Singh (A-5), in connivance with the Postal employees. For this purpose, three different Postal SB accounts were opened in their joint names as under:-
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(i)A/c No. 300118 was opened on 31.08.2001 in the Post Office Kausambi in the joint names of accused Y.K. Sharma (A-3) and Mahender Kumar (A-9) which was allowed by accused Zile Singh Kasana (A-7), the then SPM, Post Office Kausambi. The introduction was given by way of ration card No. 3141831 which is not permitted as per rules. In this account, seven out of the sixteen demand drafts issued in favour of Senior Post Master, Ghaziabad, by M/s Escort Ltd., were deposited for a total amount of Rs. 5,59,657/-. The endorsement for depositing the amount in the SB Account was made by accused Y.K. Sharma (A-3) on six of these DDs and by accused Mahender Kumar (A-9) on the seventh DD. These DDs were accepted by accused Zile Singh Kasana (A-7), the then SPM Kausambi. After clearance from the Head Post Office, the amount was credited to the above mentioned SB account in Kausambi Post Office and was later withdrawn from this account by accused Y.K. Sharma (A-3).
(ii)SB Account 300122 was opened on 13.09.2001 in the said post office in the joint names of accused Umesh Kumar Singh (A-5) and Rajiv Kumar Srivastava (A-4) in connivance with accused Zile Singh Kasana (A-7). In this account, one DD No. 505665 dated 01.09.2001 was deposited by way of endorsement on its back, made by accused Rajiv Kumar Srivastava (A-4). After clearance from the Head Post Office, Ghaziabad, this amount was also credited to this SB account and was later withdrawn by the accused Rajiv Kumar Srivastava (A-
4).
(iii)SB A/c No. 747913 was opened on 14.09.2001 in Post Office Mukund Nagar in the joint names of accused Gajender Kumar Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 10 of 197 Sharma (A-2) and his wife Smt. Pushpa Sharma. Same was allowed by accused Inder Pal Singh Yadav (A-8), the then SPM, Mukund Nagar. Out of above stated 16 DDs, two DDs for Rs. 1 lac each were deposited in this account by accused Gajender Kumar Sharma (A-2) and after processing and clearance by the accused persons at Head Post Office, Ghaziabad, the amount was credited to the above mentioned SB account and was later withdrawn by the accused Gajender Kumar Sharma (A-2). His wife did not withdraw any amount from this account.
13. It is further stated that out of these sixteen DDs, six were utilized by accused Gajender Kumar Sharma (A-2) for purchasing of postage stamps worth Rs. 6 lacs. These postage stamps were further sold to Sh. Rattan Singh by the accused Gajender Kumar Sharma (A-7). Investigation further revealed that on 04.12.2001, a sum of Rs. 2,00,500/- was withdrawn by accused Zile Singh Kasana (A-7) from SB A/c No. 300118 by forging the signatures of accused Y. K. Sharma (A-
3). Also, a sum of Rs. 51,000/- was withdrawn from SB A/c No. 300122 by accused Zile Singh Kasana (A-7) by forging the signatures of accused Umesh Kumar Singh (A-5) on the same day. This shows the connivance of Zile Singh Kasana with the other accused persons. Investigation further revealed that vide receipt No. 20 dated 08.12.2001, 21 dated 10.12.2001 and receipt No. 23 dated 11.12.2001, accused Y. K. Sharma (A-3) had deposited a sum of Rs. 1,22,000/-, Rs. 20,000/- and Rs, 150,000/- respectively in the UCR (Unclaimed Receipt) Account at Post Office Kausambi (Total amount Rs. 2,92,000/-). Similarly, accused Umesh Kumar Singh (A-5) had deposited Rs. 50,000/- in the UCR (Unclaimed Receipt) account, at Kausambi Post Office, vide receipt no.
Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 11 of 197 24 dated 11.12.2001.
14. It is stated that all these sixteen demand drafts were processed for clearance at the Head Post Office, Ghaziabad by accused Brij Dev Goswami (A-11), Asst. Post Master and Om Prakash (A-10), Ledger Clerk in violation of the rules of the postal department and accordingly, the amount was credited to the above mentioned three SB Accounts and six were utilized in purchase of postal stamps. Investigation revealed that as per the postal rules relating to subsequent deposits in the SB accounts through cheques/demand drafts drawn in favour of Sr. Post Master, Ghaziabad, the cheques/demand drafts could not have been deposited in the personal saving accounts even by making endorsement on them as has been done in this instant case.
15. The investigation further revealed that the franking Dak Register of M/s Abhishek Enterprises did not contain any entry regarding deposit of any amount or of dispatch of any mail by the said mailer from 06.08.2001 to 04.09.2002.
16. During investigation, on the disclosure of accused Gajender Kumar Sharma (A-2), a Franking Machine Meter Unit (number erased) fitted with counterfeit die was recovered from the premises 92-A, Prateek Market, Munirka, New Delhi which was taken on rent by him.
17. During the house search of accused Y.K. Sharma at 119, Bhagwan Nagar, New Delhi, he was found in possession of articles/instruments for tampering with the franking machine.
18. During Investigation Sh. Vineet Mathur (PW-1), ADG, Dak Bhawan, Parliament Street, New Delhi, clarified vide corrigendum dated 23.03.2002 that even though Sh. Ramesh Chand Sharma was mentioned as SPM Kausambi Post Office as an accused in the complaint dated Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 12 of 197 06.02.2002, it was in fact Sh. Zile Singh Kasana (A-7), the then Sub- Post Master, Kausambi, who had actively participated in the crime, not Sh. Ramesh Chand Sharma whose name was inadvertently mentioned as SPM, Kausambi by the complainant. Sh. Ramesh Chand Sharma was not posted in the Post Office in Kausambi during the commission of offense and he had, in fact, taken his charge from accused Zile Singh Kasana (A-7) as SPM, PO Kausambi after the commission of offenses. Similarly, Mukesh Kumar Sharma (PW42), whose name figured in the FIR, was not found connected with the offenses. in the instant case. Investigation revealed that even though the request letter for the purchase of postal stamps amounting to Rs. 2.00 lacs from PO Mukundnagar was in his name, the said letter, was actually written by accused Gajender Kumar Sharma (A-2) as was later confirmed by Government Examiner of Questioned Document (GEQD). Thus, Ramesh Chand Sharma and Mukesh Kumar Sharma were not sent for prosecution in this case and their names were mentioned in column No.2.
19. It was thus alleged that the accused persons had committed the offense of criminal conspiracy u/s 120 B IPC r/w 420, 406, 409, 468, 471, 255, 256, 257 IPC and also under section 13 (2) r/w 13 (1) (c) & 13 (a) (d) of Prevention of Corruption Act, 1988. Besides, this the accused persons are also stated to have committed substantive offenses. as under:-
(i) G.K. Sharma (A-2) U/s 255, 256, 257, 471, 420 and 406 IPC.
(ii) Yogender Kumar Sharma (A-3) U/s 468,420,406, 255 and 256 IPC.
iii) Rajiv Kumar Srivastava (A-4) U/s 255, 406 and 420 IPC.
(iv) Umesh Kumar Singh (A-5) U/s 255, 406 and 420 IPC.
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(v) Tariq Mohammad (A-6) - U/s 257 IPC
(vi) Zile Singh Kasana (A-7) U/s 13(2) r/w 13(1) (c) & (d) of Prevention of Corruption Act 1988 and U/s 420, 409 IPC.
(vii) Inder Pal Singh Yadav (A-8)- 13(2) r/w 13(1) (c) & (d) of Prevention of Corruption Act 1988.
(viii) Mahender Kumar (A-9)- U/s 468 & 406 IPC.
(ix) Om Prakash Sharma (A-10)- 13(2) r/w 13 (1) (d) of Prevention of Corruption Act 1988.
(x) Brij Dev Goswami (A-11)-13(2) r/w 13(1) (d) of Prevention of Corruption Act 1988.
20. Sanction order for taking cognizance required u/s 19(1)(c) of PC Act, 1988 in case of Public Servants was obtained from the competent authority and was filed with the chargesheet.
CHARGE
21. Ld Predecessor of this Court vide detailed order dated 27.04.2007 reached the conclusion that prima facie case is made out against all the accused persons. Accordingly, on 11.05.2007, all the accused persons were charged with the offenses punishable U/Sec. 120-B r/w Section 420, 406, 409, 468, 471, 255, 256, 257 of IPC and section 13(2) r/w Section 13(1)(c) & 13(1)(d) of the PC Act. Accused Gajender Kumar Sharma was also charged with offense punishable U/Sec. 255, 256, 257, 471, 420, 406 IPC. Accused Yogender Kumar Sharma was also charged with offense punishable U/Sec. 255, 256, 420, 468, 406 IPC. Accused Rajiv Kumar Srivastava and Umesh Kumar Singh were also charged with offense punishable U/Sec. 255, 420, 406 IPC. Accused Tariq Mohammad was also charged with offense punishable U/Sec. 257 IPC.
Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 14 of 197 Accused Zile Singh Kasana was also charged with offense punishable U/Sec. 13(2) r/w Section 13(1)(d), 13(2) r/w 13(1)(c) of the Prevention of Corruption Act, 1988 and offense punishable U/Sec. 409, 420 IPC. Accused Inderpal Singh Yadav was also charged with offense punishable under Section 13(2) r/w Section 13(1)(d) and 13(2) r/w 13(1)
(c) of the Prevention of Corruption Act, 1988. Accused Mahender Kumar was also charged with offense punishable U/Sec. 468, 406 IPC. Accused Om Prakash Sharma and Brij Dev Goswami was also charged with offense punishable U/Sec. 13(2) r/w 13(1)(d) of the PC Act. All the accused persons pleaded not guilty and claimed trial.
22. During trial Zile Singh Kasana (A-7) expired on 03.09.2019 and Brij Dev Goswami (A-11) expired on 26.08.2020 and the proceedings against them were abated vide orders dated 13.09.2019 and 04.02.2021 respectively.
EVIDENCE
23. In order to prove its case prosecution examined 58 witnesses. PW1 Sh.
Vineet Mathur, the then Assistant Director General (Investigation) in the Department of Posts Head Quarter, Ministry of Communication & IT, New Delhi, was examined by prosecution to prove the written complaint made by him, on the basis of which CBI registered the FIR of the present case and corrigendum vide which he had clarified the name of the then Sub- Post Master at post of Kausambi, Ghaziabad. He sought to prove his complaint dt 06.02.2002 Ex PW1/A and corrigendum dt. 22.03.2002 Ex PW1/B.
24. PW2 Sh. Rajbir Singh, the then Assistant Superintendent of Post Offices, Chanakyapuri, New Delhi, examined by prosecution, sought to Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 15 of 197 prove what Franking Machine and parts thereof were, how same was obtained from Post Office/manufacturer or its agent by persons/firm engaged in bulk mailing, how license to use Franking Machine was obtained from Post Office, how Franking Machine was filled with value (filling of value is very much akin to recharging prepaid mobile phone for being able to make calls ) and how payment was to be made for filling value. He also sought to prove application, processing, granting of Franking License to M/s Abhishek Enterprises under the proprietor of Dinesh Sharma (A-1) and its request for change of address from 93 Katwaria Sarai to 92A, Munirka New Delhi, processing of request and its approval. He also sought to prove how a letter from Asst. Post Master General (V & I) led to seizure of Franking Machine (Ex MO-1) licensed to M/s Abhishek Enterprises on 06.12.2001 by a team comprising him, one Sh. Padam Singh and others in the presence of labour/officials present at M/s Abhishek Enterprises, 92A, Prateek Market, Munirka, New Delhi.
25. PW3 Sh S. L. Makkar, the then Assistant Director, Central Checking Squad of the Postal Department, sought to prove how he along with Mr. Mahender Singh (PW30) and Mr. J. P. Rajore (PW40), the Asst. Superintendents visited Faridabad Head Post Office and stumbled upon unregistered parcel received returned undelivered for Escort Ltd., containing Annual Report of the company raising suspicion and how on inquiry it transpired franking stamp used on returned unregistered parcel for the Escort Ltd. was fake, how on further inquiry it transpired that Escort Ltd. had awarded bulk mailing contract to M/s Abhishek Enterprises for sending its annual report little less than 90,000 in number against payment of Rs. 14,59,657/- by way of 16 demand drafts in Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 16 of 197 favour of Sr. Post Master, Ghaziabad, how this demand drafts were credited into personal accounts of the accused persons opened in Kausambi and Mukundnagar Post Offices. He also sought to prove his report with respect to above inquiry. He also sought to prove how Saving accounts were opened in Post Office and rules concerning debit and credit therein via cheque/DD etc. He also sought to prove handing over of some documents (D-56 & 57) by him to IO vide his letter Ex PW11/C (D-55).
26. PW4 Sh. Kedar Singh who had worked as Sub-Post Master, Asst. Post Master and Officiating Deputy Post Master in Ghaziabad Post Office, sought to prove how Saving Bank Account (SB A/c) were opened in Post Offices, opening of SB A/c No. 300118 in the joint name of accused Y. K. Sharma (A-3) & Mahender Kumar (A-9), opening of SB A/c No. 300122 in the joint name of Rajiv Kumar Srivastava (A-4) and Umesh Kumar (A-5), crediting of amounts in these accounts and handing over documents in the hand of accused Zile Singh Kasana (since deceased).
27. PW5 Sh. Shailender Kumar Sharma, the then Post Master at Ghaziabad, sought to prove the process of grant of Franking Machine License, who prepared dies, how Franking Machine was filled with value, how SB A/c was opened in post office and upto what amount can be credited etc.
28. PW6 Sh. Giriraj Singh Tomar was posted at the Head Post Office at Ghaziabad on Ledger V. He sought to prove posting of transaction list received from the Sub-Post Office Mukundnagar, of withdrawals and deposits in the ledger, signature of Zile Singh on seven demands drafts and that of Inder Pal on two demand drafts out of 16 DDs released from Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 17 of 197 Escort Ltd.
29. PW7 Sh. Ramesh Chand Sharma had succeeded accused Zile Singh as Sub Post Master in the post office at Kausambi in June 2002. He sought to prove the signature of Zile Singh (from whom he had taken over the charge as Sub Post Master) on the account opening Form Ex PW7/1 of account No. 300122 besides identifying him in Court, the Ledger Card Ex PW7/2 of the account No. 300122, signature of Zile Singh on the Account Opening Form Ex PW7/3 of account No. 300118, the Ledger Card Ex PW7/4 of the account No. 300118. He also sought to prove mail list Ex PW7/5 to Ex PW7/22 (D-78) of Sub-Post Office Kausambi sent to City Sorting Office and all prepared in the hand of accused Zile Singh. He also sought to prove his letter Ex PW7/23 (D-77).
30. PW8 Sh. Ved Prakash was posted as Deputy Superintendent at the Office of Senior Superintendent, Post Office at Ghaziabad. He sought to explain the procedure of opening of saving account in the post/sub-post office. He pointed out discrepancy in the account opening of Account No. 300118 and found Deposit Slips Ex PW/1 to Ex PW8/5 in order along with counter foil Ex PW/6 but was not able to identify any signatures of any post officials on documents D-22 to D-27 though he admitted having handed over documents numbered in chargesheet as D- 22 to D-54 vide receipt memo Ex PW8/7 (D-21) bearing his signature at point A.
31. PW9 Sh. Rajesh Jain was postal Assistant to Post Master Ghaziabad and was dealing clerk qua the Franking Machine License (Electronic) and other matters related to the said machine within the jurisdiction of Ghaziabad. He sought to prove that Franking License bearing No. UP- 23/0047/99 dt. 28.04.199 was allotted to M/s Rastriya Sahara, Noida, Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 18 of 197 UP for 5 years on the basis of related documents Ex PW9/1 to Ex PW9/9.
32. PW10 Sh. Hari Singh who was working as ED (Stamp Vendor) in Mukundnagar Post Office, Ghaziabad, sought to prove having signed the Account Opening Form Ex PW 6/DB of account No. 747913 as introducer at the instance of Sub-Post Master Inder Pal Singh (A-8) while identifying both accused Inder Pal Singh and accused Gajender Kumar Sharma in the Court. He also sought to prove handwriting of accused Inder Pal Singh in the statement of account Ex PW10/1 of aforesaid account and signatures of Inder Pal Singh on documents Ex PW10/2 to Ex PW10/7.
33. PW11 Sh. Padam Singh who was Inspector Franking Machine posted with Chanakyapuri Post Office, New Delhi sought to prove documents (application with annexed documents, processing and approval) concerning grant of Franking License No. DL-5/199/99 and Franking Machine bearing Unit No. PB-5235 to M/s Abhishek Enterprises, it's Franking Pass Book with entries w.e.f. 03.06.2000 and it's Dak Register. He also sought to prove that Franking Machine bearing Unit No. PB 5235 was seized on 6.12.2001 by the orders of SSPO, Chanakyapuri, that impression of Die fitted in the Franking Machine was taken and that Franking Machine was lastly used on 5.12.2001 with meter reading showing Rs. 94,77,475 (used) and Rs. 3,202/- (unused). He also sought to prove 15 specimen impression of Die of Franking Machine PB-5235 taken by IO.
34. PW12 Sh. Shiv Dutt Khanna was at relevant time posted as Inspector Franking Machine in Chanakyapuri Post Office, New Delhi. He also explained the process of obtaining Franking Machine and its license Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 19 of 197 explaining the process of filling and maintaining of Dak Register. He also sought to prove documents (application with annexed documents, processing and approval) concerning grant of Franking License No. DL- 5/199/99 and Franking Machine PB-5235 to M/s Abhishek Enterprises, it's Franking Pass Book and it's Dak Register.
35. PW13 Sh. Mangal Chand was driver in M/s International Print-O-Pac, Ltd, Okhla Industrial Phase-I, New Delhi which had printed Annual Reports of Escort Ltd. He sought to prove delivery of certain number of printed Annual Reports of Escort Ltd. from printer to M/s Abhishek Enterprises at its Ghaziabad location at 1035, Techno Plaza, Meerut Road, Ghaziabad vide Gate Pass/Challan/Invoice Ex PW13/A to Ex PW13/C and Gate Passes/Challan Ex PW13/D1 to Ex PW13/D5. He also sought to prove having seen work of pasting name and address slips on the envelopes being done by the staff at said place.
36. PW14 Sh. Shivaji Mishra was clerk with Rastriya Sahara Press, Noida, Sector-11, UP. He sought to prove documents concerning grant of Franking License bearing No. UP/23/0047/99 dt 02.04.1999 with respect to Franking Machine PBB-00840 to Rastriya Sahara Press, Noida, Sector-11, UP along with its specimen impression of the Franking Machine PBB-00840.
37. PW15 Smt. Sadhna Sharma the then Desk Officer in State Bank of Saurashtra, Connaught Place, C-37 Opposite Odean Cinema, New Delhi, sought to prove handing over vide receipt Memo Ex PW15/A (D-
70) of request slip dt. 29.08.2001 and 01.09.2001 from Standard Chartered Bank and from Grindlays Bank along with consolidated cheques for preparation of various Demand Drafts following which DDs bearing No. 505546 to 505549 all dt. 29.08.2001 and DDs bearing No. Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 20 of 197 505655 to 505666 all dated 01.09.2001 were issued in favour of Sr. Post Master, Ghaziabad.
38. PW16 Sh. B. S. Yadav the then Branch Manager of State Bank of Saurashtra, Connaught Place, C-37 Opposite Odean Cinema, New Delhi, was examined to prove his signature on DDs Ex PW4/B to Ex PW4/D.
39. PW17 Sh. Praveen Kohli who at relevant time was working in Printo-
O-Pac Ltd, Phase-II, Noida U.P, sought to prove printing order placed by Escort Ltd for printing of 90,000 copies of its Annual Report and delivery there to at 1035, Techno Plaza Opposite Pousha Industries near Toyota Show Room Meerut Road, Ghaziabad, UP.
40. PW18 Sh. R. K. Srivastava the then Dy. Manager in State Bank of Saurashtra, Connaught Place, C-37 Opposite Odean Cinema, New Delhi, sought to prove rules that Demand Draft for less than Rs. 50,000/- was required to be signed by one officer whereas DD for above Rs. 50,000/- was required to be signed by two officers of the same branch.
41. PW19 Sh. Dhani Lal who was working as Driver in M/s Ganga Yadav Transport Service, sought to prove delivery of certain quantities of Annual Report from printer to 1035, Techno Plaza near Toyota Show Room Meerut Road, Ghaziabad, UP.
42. PW20 Sh. Bharat Bhushan Bhatnagar was posted as accountant in the State Bank of Saurashtra, Shastri Nagar, Ghaziabad and he sought to prove receipt memo dt.15.02.2002 vide which he had handed over Demand Drafts Ex PW4/A to Ex PW4/G and Ex PW15/D1 to Ex PWD9 to CBI and the fact of having passed ( discounted) them on being presented to branch through Clearing House.
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43. PW21 Sh. Vivek Tyagi claimed to be owner of 1035, Techno Plaza, Hari Nagar, Meerut Road, Ghaziabad and claimed to have let out the same to accused Gajender Sharma at relevant time. He also sought to prove that accused Gajender Sharma with his men were engaged in packing of some books and dispatching the same in vehicle TATA 407. He also identified the accused Gajender Sharma in Court.
44. PW22 Sh. Vinod Dixit is a sort of star witness. He was General Manager in Escort Ltd, Faridabad. He sought to prove that Annual Report of Escort Ltd. for the year 2000-01 was got printed from International Print-O-Pack and service of M/s Abhishek Enterprises were engaged from bulk mailing the Annual Reports to its nearly 90,000 share holders. He also sought to prove that at the instance of accused Gajender Kumar Sharma of M/s Abhishek Enterprises he wrote necessary letter to Post Master Ghaziabad resulting into approval for mailing bulk mail from Ghaziabad Post Office. He sought to prove delivery of printed Annual Report to accused at 1035, Techno Plaza Meerut Road Ghaziabad; getting overseen by staffs the work of dispatch of Annual Report after having been franked, payment by way of 16 Demand Drafts to Gajender Kumar Sharma for filling the Franking Machine apart from payment of charges for service rendered by M/s Abhishek Enterprises etc. and having delivered necessary documents concerning above aspect to the Investigating Agency.
45. PW23 Sh. Aman Sharma was working as clerk in M/s Escort Ltd. He identified accused Gajender Sharma in Court and identified the signature of accused Gajender Sharma on Gate Passes/Challans Ex PW19/A, Ex PW22/A3 to Ex PW22/A6 and Ex PW13/D1 to Ex PW13/D5. He also identified the returned 463 Envelopes Ex PW22/A20 Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 22 of 197 stated to be sent by mail after Franking was done at the office accused Gajender Kumar Sharma.
46. PW24 Smt. Pushpa Sharma wife of accused Gajender Kumar Sharma.
She was examined to prove that she with her husband accused Gajender Kumar Sharma had opened joint account No. 747913 but she denied her signature on Account Opening Form Ex PW6/DB of joint account No. 747913.
47. PW25 Sh. Ratan Singh was running mailing firm in the name of Modern Mailing Service. He was examined to prove his having purchased postal stamp for Rs 1.5 lacs from accused Gajender Kumar Sharma who was stated have excess postal stamps. He also identified accused Gajender Kumar Sharma in court.
48. PW26 Vijay Kumar Sharma, a known of the accused Gajender Kumar Sharma, was at relevant time working as Franking Machine Operator. He sought to prove that accused Gajender Kumar Sharma got prepared a die engraved UP-23/0047/99 (found impressed on returned envelopes Ex PW22/A20) from accused Tariqu Mohammad (A-6) of Aligarh by sending him to accused Tariqu Mohammad. He identified both accused Gajender Kumar Sharma and Tariqu Mohammad in court.
49. PW27 Sh. Sunil Pathak was working as Secretarial Assistant in Escort Ltd. at Faridabad. He sought to prove having observed franking of Annual Reports of Escort by accused Gajender Kumar Sharma and his men from Techno Plaza after pasting names and address slips of the shareholders; having seen dispatched of franked mailed by vehicle of postal department and having delivered 12 Demand Drafts Ex PW15/D1 to Ex PW15/D9, Ex PW4/E and Ex PW4/F of different denomination to accused Gajender Kumar Sharma.
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50. PW28 Sh. Krishna Kumar Shahi was also posted as Assistant in Escort Ltd, Faridabad. He also sought to prove having supervised franking of Annual Reports of Escort Ltd. by accused Gajender Kumar Sharma and his men from Techno Plaza; having seen dispatched of franked mailed by vehicle of postal department and having delivered 4 Demands Drafts Ex PW4/A to Ex PW4/D of different denomination to accused Gajender Kumar Sharma. He however failed to recognize/identify accused Y.K. Sharma, Umesh Kumar and Rajiv Kumar Srivastava as an accomplice of accused Gajender Kumar Sharma in franking and mailing of Annual Reports of Escort Ltd.
51. PW29 Sh. P. S. Chauhan is an independent witness to the taking of specimen signature of accused Umesh Kumar Singh, accused Rajiv Kumar Srivastava but was unable to identify the above said accused in the court on account of lapse of time.
52. PW30 Sh. Mahender Singh was posted as Assistant Superintendent in the Central Checking Squad of Postal Department at Dak Bhawan, New Delhi. He being member of the team led by PW3 S. L. Makkar sought to corroborate the testimony of PW3.
53. PW31 Sh. V. K. Khanna was the Principal Scientific Officer and In-
charge Document Division, CFSL, CBI, New Delhi. He proved his report on questioned signature and handwritings of the accused persons on incriminating documents vis-a-vis specimen signatures/hand writing of the accused persons.
54. PW32 Sh. S. V. Sadavarte was Assistant Superintendent of Post Offices at New Delhi at relevant time. He sought to prove his having joined investigation with CBI team and having witnessed search of residence of accused Gajender Kumar Sharma by CBI team, arrest of Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 24 of 197 accused Gajender Kumar Sharma, making of disclosure by accused Gajender Kumar Sharma and seizure of a Franking Machine from 92A, Prateek Market Munirka, New Delhi. He also sought to prove taking of impression of Franking Machines seized by postal authorities and seized by CBI team from 92A, Prateek Market Munirka, New Delhi and having found Franking Machine tampered and value die broken.
55. PW33 Sh. Ramesh Chand Meena was an Inspector in the Postal Department at Faridabad and was dealing in Public Grievances. He sought to prove having handed over file containing papers relating to Franking License applied by M/s G. K. S. Services, B/612, Dabua Colony, Faridabad, Haryana under proprietorships of accused Gajender Kumar Sharma and fact of M/s G.K.S Service not succeeding in obtaining Franking License from Faridabad Post Office but retaining the Franking Machine which it had purchased and which as per chargesheet was misused in franking the Annual Report of Escort Ltd. with the help of fake/forged die.
56. PW34 Gursharan Singh was working as Regional Manager in M/s Kilburn Automation Ltd. dealing in Franking Machine. He sought to prove selling and delivery of Franking Machine bearing meter Units Nos. PB-5235 and PB-5507 to M/s Abhishek Enterprises and M/s G.K.S. Services respectively.
57. PW35 Sh. Ashok Sikka was Product and Sales Manager in the Pitney Bowes India Pvt. Ltd., the manufacturer of Franking Machine involved in the present case. He explained the procedure of purchase of Franking Machine and how it got readied for end user. He also informed where from company used to get the Town Die prepared. He also sought to prove that Franking Machine PB-4235 was sold to M/s Z.F. Steering Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 25 of 197 Gear (I) Ltd. at Maharastra.
58. PW36 Sh. Vijay Kumar Luthra at relevant time was working in M/s Kilburn Office Automation Ltd. as Regional Service Manager. He explained the Franking Machines, its parts, its working, procedure involved in procuring and maintaining of the Franking Machine and its license from post office. He also sought to corroborate the testimony of PW34 Gurusharan Singh. He also sought to prove his having witnessed operation of seized Franking Machine from Gajender Kumar Sharma by CBI; preparation of inventory Memo Ex PW36/A and having found die fixed in the Franking Machine in manipulated manner.
59. PW37 Sh. Pratap Singh whose father Gopi Chand had let out house No. 45, village Gajipur, PO. Khichripur, PS. Kalyanpuri, Delhi, sought to prove that his father had let out the aforesaid house to accused Rajiv Kumar Srivastava who used the house for 15 days and where he used to bring articles in plastics bags by tempo. But prosecution had examined him to prove that house was let out by him on behalf of his father to accused Y. K. Sharma whom he could not identify in the court despite having been specifically pointed out.
60. PW38 Sh. Udai Chand was posted as a Cashier in the Post Office, Okhla Industrial Estate, New Delhi at relevant time. He sought to prove signature of accused Mahender Kumar on Account Opening Form of joint account bearing No. 300118 and on Demand Drafts Ex PW4/D.
61. PW39 Sh. Bhim Singh who was personal driver of accused Gajender Kumar Sharma, was examined to prove that he had seen accused Gajender Kumar Sharma and others involved in the franking of mails of Escort Ltd. from Techno Plaza Ghaziabad.
62. PW40 Sh. J. P. Rajoure was Assistant Superintendent in Central Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 26 of 197 Checking Squad Post Office. He in his testimony sought to corroborate the testimony of PW3 S. L. Makkar and PW30 Mahender Singh as he was also one of the member of the said team who discovered undelivered returned envelopes with forged franking containing Annual Reports of Escort Ltd.
63. PW41 Sh. Pradeep Kumar who was Senior Superintendent of Post Office at South Division, New Delhi, sought to prove the sanctioning of prosecution of public servant accused Mahender Kumar.
64. PW42 Sh. Mukesh Chander Sharma who was working in M/s Abhishek Enterprises sought to prove involvement of accused Gajender Kumar Sharma and also identified signature/handwriting of Gajender Kumar Sharma in certain stately forged documents.
65. PW43 Sh. Shailender Patra was working as Secretarial Assistant in Escort Ltd. He sought to prove his having visited Techno Plaza, Meerut Road, Ghaziabad for overseeing the work of franking of Annual Reports by Sh. Gajender Kumar Sharma of M/s Abhishek Enterprises and having seen the franking of mails by Sh. Gajender Kumar Sharma and his men.
66. PW44 Sh. Ashok Kumar Tokas sought to prove that he had let out 92A, Prateek Market, Munirka, New Delhi to M/s Abhishek Enterprises managed and controlled by accused Gajender Kumar Sharma.
67. PW45 Sh. Sushil Mehta was posted as Public Relation Inspector in Post Office, Parliament Street, Head Post Office, New Delhi. He sought to prove having witnessed raid at Munirka in June 2002 and taking of impression of a die of a Franking Machines seized by Postal Authorities on 6.12.2001 and another seized by CBI.
68. PW46 Sh. B. B. Agarwal was posted as Senior Superintendent of Post Office, Ghaziabad, UP and he sought to prove sanction for prosecution Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 27 of 197 in respect of public servant accused Inder Pal Singh, Om Prakash and Zile Singh.
69. PW47 Sh. Suresh Kumar was working as Public Relation Officer, Franking, in Lodhi Road Head Post Office, New Delhi. He sought to prove his having witnessed taking of specimen signature and handwriting of accused Zile Singh Kasana, Gajender Kumar Sharma, Y. K. Sharma and Dinesh Kumar Sharma.
70. PW48 Sh. Janardan Sharma was Office Superintendent in the Office of Senior Superintendent Post Office, Postal Department (SSPO) at Ghaziabad. He sought to prove his handing over of stock register of Mukundnagar Post Office to CBI and sought to explain the contents of stock register. He also explained the minimum, maximum limit of deposits in saving bank account and the procedure of encashment of demand drafts issued in the name of Post Master.
71. PW49 Mrs. Neelam Srivastava was posted and working as Chief Post Master General in U.P. Circle at Lucknow. She sought to prove sanction for prosecution of public servant accused Brij Dev Goswami (since deceased).
72. PW50 Sh. Bipin Kumar Gupta was General Manager in Tele Post India Private Limited (in short TPIPL), Nehru Place, New Delhi. He was examined to prove that accused Rajiv Srivastava, Y. K. Sharma and Umesh Kumar Singh were working as service Engineer in the TPIPL and he was aware of the signatures and handwriting of these persons but he did not help prosecution in the court so far as identifying signature/handwriting of the above named accused persons on certain documents are concerned, although he admitted having identified the signatures/handwriting of the above named accused persons before CBI Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 28 of 197 during investigation.
73. PW51 Sh. Randhir Singh who was posted as Public Relation Officer in Post Office Ghaziabad, sought to prove handing over of some documents/files maintained in the Post Office, to IO during Investigation.
74. PW52 Sh. Shuban Ali was posted as Public Relation Inspector in Head post Office, Ghaziabad, U.P., sought to prove handing over of some documents/files maintained in the Post Office, to IO during Investigation.
75. PW53 Sh. Alimuddin was at relevant posted as Accountant in Post Office, Ghaziabad. He was examined to identify the signature/handwriting on various documents of various officials posted in Post Office, Ghaziabad.
76. PW54 Sh. Veer Mohinder Singh was working in Post Office. He was examined to identify the signature/handwriting on various documents of accused Zile Singh Kasana, Brij Dev Goswami, Om Prakash Sharma and Inderpal Singh Yadav.
77. PW55 Sh. Brijpal Singh was postman and working in Post Office. He was examined to identify the signature/handwriting on various documents of various officials posted in Post Offices.
78. PW56 Sh. Gurmeet Singh was the 2nd Investigating Officer and he sought to prove his investigation from the stage he took over and till the stage he remained Investigating Officer.
79. PW57 Sh. Roshan Lal Yadav was the 1st Investigating Officer and he sought to prove his investigation from the stage he took over and till the stage he remained Investigating Officer.
80. PW58 Sh. H. S. Karmyal was the last Investigating Officer and he Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 29 of 197 sought to prove his investigation from the stage he took over and till the stage he remained Investigating Officer.
STATEMENT OF ACCUSED U/S 313 CrPC
81. Prosecution dropped two witnesses namely Raj Bahadur (shown at Sl.
No. 49 in the list of witnesses) and Deepak Dube (shown at Sl. No. 28 in the list of witnesses) and closed prosecution evidence. After prosecution evidence stood completed, statements of all the Accused persons were recorded u/s 313 Cr.PC. The entire incriminating evidences were put to the Accused persons. They denied the incriminating evidence against them and pleaded their innocence.
82. Accused Dinesh Sharma (A-1) in his statement under Section 313 CrPC has mostly denied the evidences appearing against him and most of the time he chose to feign ignorance by saying he did not know. However, in nutshell he stated that he was running a firm namely Abhishek Enterprises at 93, Katwaria Sarai, New Delhi in rented accommodation and subsequently from 92A, Prateek Market Munirka, New Delhi and had got one Franking Machine PB-5235 with franking license No. DL-05/099/99 dt 16.09.1999. This Franking Machine was always in good condition and was so even at the time when same was seized by Postal Authorities. This Franking Machine was never misused by him or by his men and same was never permitted to be used by his brother Gajender Kumar Sharma. He denied having any contract with Escort Ltd. for sending its Annual Report for the year 2000-01. He denied having sent the Annual Report from Ghaziabad or from anywhere or have received any payments from Escort Ltd. for any such work. He further explained that he had not committed any offense as alleged and was innocent.
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83. Accused Gajender Kumar Sharma (A-2) has denied almost every evidences against him that was put to him. He too denied having any contract for the dispatch of Annual Report of Escort or having been involved in dispatching of such Annual Report of Escort Ltd. from anywhere. He did not deny owning M/s G.K.S. Service and one Franking Machine PB-5507. Contrary to his brother Dinesh Sharma, he admitted being in possession of Franking Machine bearing meter unit PB-5235 till same was seized by Postal Authorities. He stated that both the seized franking machines i.e. PB-5235 and PB-5507 were genuine and that one of them was unused new machine. He did not deny grant of Franking License to M/s Abhishek Enterprises. He also admitted having sold postal stamps worth Rs 1.5 lacs to Sh. Ratan Singh (PW25). He owned up joint account No. 747913 with his wife Pushpa Devi and transactions therein. But denied having received any of the 16 DDs in question from Escort Ltd. He further stated that a false case had been registered at the instance of Sh. Vinod Dixit, General Manager, M/s Escort Ltd. and that he had not committed any offense but did not explain why Vinod Dixit would falsely implicate him.
84. Accused Yogender Kumar Sharma (A-3) denied all evidence against him either for want of knowledge or being wrong. He denied having opened joint saving account No. 300118 with accused Mahender Kumar. He further stated that he was innocent and had not committed any offense alleged against him.
85. Accused Rajiv Kumar Srivastava also denied each and every evidences against him either for want of knowledge or for being wrong. He denied having opened joint saving account No. 300122 with accused Umesh Kumar Singh or having signed any documents alleged to be Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 31 of 197 signed by him. He further stated that he was innocent and had been falsely implicated by CBI at the instance of Vinod Dixit of Escort Pvt. Ltd, Faridabad. He did not explain why Vinod Dixit had got him falsely implicated in the present case.
86. Accused Umesh Kumar Singh (A-5) also denied each and every evidences against him either for want of knowledge or for being wrong. He denied having opened joint saving account No. 300122 with accused Rajiv Kumar Sharma or having signed any documents alleged to be signed by him. He further stated that he was innocent and had been falsely implicated.
87. Accused Tariqu Mohammad (A-6) denied all evidence against him either for want of knowledge or for being wrong. Further he stated that Vijay Kumar Sharma (PW26) never met him and he did not know any person namely Vijay Kumar Sharma @ Khan. He had not engraved any die for M/s Abhishek Enterprises. He further stated that he was innocent and had not committed any offense and had been falsely implicated in this case.
88. Accused Zile Singh Kasana (A-7) (since deceased) also denied all evidence against him either for want of knowledge or for being wrong. He stated that no cheques had been submitted at Kausambi Sub-Post office during his tenure. As per him the sanction for prosecution was mechanically granted at the behest of CBI for involving him in this false and fabricated case. He further stated that he was innocent and falsely implicated in this alleged case.
89. Accused Inderpal Singh Yadav (A-8) while denying all evidence against him for want of knowledge or for being wrong stated that at the time of opening of account No. 747913 both the person were present Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 32 of 197 there and signed before him on the requisite documents. He further stated that it is the general process that every valuable instrument like DDs, cheques etc. must be in favour of Sr. Post Master and the same must be deposited in his account. Thereafter, same would be transferred to other accounts. He further stated that he was innocent and had committed no offense and had been falsely involved in this fictitious case. He had done his official work, as per guidelines of Post Office Manuals and other Operative Laws, in the normal course of discharge of business at that time.
90. Accused Mahender Kumar (A-9) while denying all evidence against him for want of knowledge or for being wrong stated that PW-26 Sh. Vijay Kumar Sharma had clarified in his statement before the Court that he had not got prepared any die from Mohd. Tariq which had allegedly been used in this case. In his knowledge, no amount was deposited in the account and SB account no. 300118 was not his account. He had never opened any account jointly or individually in the Ghaziabad (Kausambi) Post Office. As per him the sanction for prosecution was granted mechanically and without application of mind by the sanctioning authority. The slips and documents in question had no concern with him. Both the franking machines reflected in this question were genuine. He further stated that he had been falsely implicated in the case without there being any proper evidence against him.
91. Accused O.P. Sharma (A-10) while denying all evidence against him for want of knowledge or for being wrong stated that he was neither posted at Post Office Mukundnagar nor at Kausambi Post Office. According to procedure of Post Office Manual, all the cheques and DDs must be credited in the account of Sr. Post Master and thereafter the Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 33 of 197 same could be transferred in the accounts as per recommendations on the back side of the said cheques/DDs. The said recommendations were also depicted on the check list which is on record of post office, cheque clearance. As per him the sanction for his prosecution was granted mechanically and without application of mind and without considering the evidence on record. The entry of heavy value postage stamp against cash and demand drafts did not exist in the sale of Postage Stamp Register. He further stated that he had nothing to do in this case, he was innocent and had been falsely implicated in this case.
92. Accused Brij Dev Goswami (A-11) (since deceased) while denying all evidence against him for want of knowledge or for being wrong stated that the required value may be deposited (recharge) in the franking machine by bank draft and by cash as well. The DDs were processed as per rules and practice. There were different types of documents and registers for recording the readings of balance postage stamps and other customer dealings by post office. As per him also the sanction for his prosecution was granted mechanically without proper application of mind by the sanctioning authority. He further submitted that he had nothing to do in this case, he was innocent and falsely implicated in this case.
DEFENCE EVIDENCE:
93. Defense examined three witnesses in defense.
94. DW1 Sh. Shiv Prakash Pandey had worked in the line of Franking Machine from 1998 to 2010 during which he claimed to have worked with four companies i.e. Kores India, Tele Post India Pvt. Ltd., Kilburn India and Bradama which as per him were engaged in distribution of Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 34 of 197 Franking Machine. He was examined to explain the procedure of procuring Franking Machine, what Franking Machine is like, what were its parts, fitting, die, license, filling of amount, its operation etc. and every aspect connected with Franking Machine.
95. DW2 Sh. Daya Ram Dube was an employee of Post Office having retired from the post of Post Master, Mohan Nagar Post Office, Ghaziabad. He claimed to have worked at various post such Public Relation Inspector, Dy. Post Master and Officiating Sr. Post Master. He was examined to explain/prove the procedure of opening of saving bank account, operation of saving bank account in the post office, encashment of DD/Cheque into it etc. and other connected matters including dealing with daks.
96. DW3 Sh. Rajender Prasad Sharma claimed to have worked in the Head Post Office, Ghaziabad and was examined to explain the procedure of opening Saving Post Office Bank Account, outcome of fake account opened in Post Office, procedure of purchasing stamp paper, procedure of depositing demand drafts in the account of an account holder, about limit of purchasing stamps, security bag, procedure of clearance of cheque/demand draft in the Post Office and other connected matter therewith.
CONTENTIONS
97. Ld. PP for CBI as well as both the defense counsels have addressed the court orally and they have also filed respective written submissions. Noting in detail the respective contentions of Ld. PP for CBI and of both the defense counsels would make this judgment sufficiently long, hence their contentions are noted in extreme brevity though while appreciating Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 35 of 197 and evaluating evidences contentions of respective parties have been taken into account.
98. In nutshell Ld. PP for CBI Sh. Pramod Singh while drawing attention of the Court to the testimonies of witnesses as well as to documents has contended that prosecution by oral and documentary evidence has successfully proved its case against all the accused persons. He has further submitted that accused persons were not only identified by witnesses but their connection to the crime has been well established. He argued that Dinesh Sharma (A-1), the proprietor of M/s Abhishek Enterprises obtained a franking license for dispatch of dak duly franked by his proprietorship concern, which was canceled on 06.12.2001 and the meter unit bearing no. PB-5235 was seized but he (A-1) in connivance with A-2 Gajender Kumar Sharma and other accused persons with a view to cheat the postal department by mailing the bulk dak of M/s Escorts Ltd, Faridabad, got prepared a counterfeit franking die from A-6 Tariq Mohd for the dispatch of franked mails, obtained a contract of mailing of annual reports from Sh. Vinod Dixit DGM of M/s Escorts Ltd, at the pretext of having a valid license for the franking of mails. Accused persons obtained 16 demand drafts from M/s Escorts Ltd for an amount of Rs. 14,59,651/- by submitting forged letters to Sub Post Master, Ghaziabad to encash the demand drafts which were credited in the private accounts of co-accused contrary to the rule and thereby caused wrongful gain to himself and the others. He further argued that Gajender Kumar Sharma (A-2) fraudulently and dishonestly used as genuine documents i.e. letter dated 23.08.2001 and 04.09.2001 prepared by A-9 Mahender Kumar knowing well that these are forged letters.
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99. It has been further argued that accused Yogender Kumar Sharma (A-3) opened a SB account in Kausambi Post office in joint name with accused Mahender Kumar (A-9) on 31.08.2001 bearing account no. 300118 and deposited as many as 7 bank drafts issued by M/s Escorts Ltd in the name of Sr. Post Master towards the payment to be made to Sr. Post Master Ghaziabad with the help of co-accused A-7 Zile Singh Kasana, A-10 Om Prakash Sharma and A-11 Brij Dev Goswami and proceeds of said drafts Rs. 5,59,657/- was got credited in the said account and withdrew some amount from the said account. Further, accused Rajiv Kumar Srivastava (A-4) and Umesh Kumar Singh (A-5) opened a SB account bearing no. 300122 in joint name on 13.09.2001 in Kausambi Post office and deposited one DD no. 505665 dated 01.09.2001 out of demand drafts issued by M/s Escorts Ltd and given to A-2 towards the filling of franking machine used in the franking of postal stamps upon the mails of Escorts Ltd for a sum of Rs. 1 lakh which he (A-4) credited in his account falsely whereas the said was the property of Sr. Post Master Ghaziabad.
100. It has been argued that accused Inder Pal Singh Yadav (A-8) abused his official position and opened one SB A/c no. 747913 on 14.09.2001 in the joint name of Gajender Kumar Sharma (A-2) and allowed the deposit of 2 demand drafts of Rs. 1 lac each in the said account. He sent the same to Head Post Office Ghaziabad for clearing in favour of A-2 Gajender Kumar Sharma. The said demand drafts were cleared by A-10 Om Prakash Sharma and A-11 Brij Dev Goswami. Hence, it has been prayed that accused persons be held guilty with maximum punishment.
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101. The pith and substance of the contentions of the respective defense counsels are that prosecution has not been able to prove its case against the accused persons they are respectively representing beyond reasonable doubt. Sh. S. Prasad Ld. Counsel for A-1 to A-6 and A-9 vehemently argued that delay in the registration of the present FIR has not been explained by the prosecution. He contended that alleged offense was allegedly detected on 14.09.2001 but FIR was registered on 19.03.2002 with no justifiable reason for the delay. He submitted that delay without justification makes the case of the prosecution unbelievable. Next limb of his argument is that prosecution has miserably failed to prove that contract of mailing the Annual Report of Escorts Ltd. was awarded to M/s Abhishek Enterprises. He further submitted that no documents relating to awarding contract of bulk mailing to M/s Abhishek Enterprises have been brought on record and therefore the involvement and connectivity of private mailer (Abhishek Enterprises) for sending the bulk mail of Annual Reports has not been proved. It is his argument that in the absence of documentary evidence concerned contract cannot be proved. In other words oral evidence is not sufficient. It has been further contended by him that the top officials of postal department and Escorts Ltd, Faridabad have been saved at the cost of false prosecution and deliberate implication of innocent accused persons and thus he submitted that investigation has been botched up to save top officials of Postal Department and Escorts Ltd. He further submitted that investigation has deliberately been diverted towards innocent persons sparing the actual perpetrators.
102. It has been further argued that as per the testimonies of witnesses, it has Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 38 of 197 been proved that the original machine of Abhishek Enterprises was never misused in any fraud. Neither any demand drafts were issued in favour of Abhishek Enterprises nor is any evidence on record that Abhishek Enterprises received any demand drafts or encashed the same by depositing in his personal bank account. It has been argued that the accounts were probably opened in connivance with the postal staff namely Sh. Ramesh Chand Sharma, Sub-Post Master Kausambi Post office and others with the help of some fake documentation and thereby diverted the investigation in other direction and intentionally involved innocent person Sh. Zile Singh Kasana in place of Ramesh Chand Sharma.
103. It has been further argued that in the report Ex.PW3/A, Postal Central Checking Squad had observed a major doubt about involvement of Escorts officials in this alleged fraud. The Postal Central Checking Squad also collected some letters relating to the renewal of contract and authorization of sending annual reports by private mailer but the investigating agency deliberately failed to investigate these facts. Testimonies on record shows that four Franking Machines were recovered but out of four Electronic Franking Machines (EFMs) only two EFMs have been produced in Court during the trial and other two EFMs had been deliberately concealed by the prosecution. It has been further submitted that the one of EFMs produced in the court were tempered whereas when they were seized they were perfectly in order which fact goes to show that investigating agency allowed fabricated of evidence against accused persons. It has been vehemently argued that prosecution miserably failed to prove that EFM PB 5507 was used in the Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 39 of 197 alleged forged franking. He has further argued that alleged fake die(s) was never recovered to prove the charge of making fake dies(s).
104. It is argued that perusal of records and testimonies of PWs would show many major contradictions giving rise to reasonable suspicions about the case of prosecution. It has been further argued that the investigating agency neither felt necessary to ascertain the thickness of envelope after filling the posting material nor seized any complete envelope having posting material. It has also not been brought on record by the investigating agency that upto how much thickness of envelope could be franked by the franking machine produced in the Court. Further, there are so many fabrications on the documents seized through (D-6) receipt memo dated 22.03.2002 from Sh. Vinod Dixit, DGM Escorts Ltd, Faridabad, that makes the case of the prosecution unbelievable. He submitted that the documents D-7 and D-20 seized from Sh. Vinod Dixit by the CBI were untrustworthy because they are all falsely created by him to save himself and his employees and thereby have involved innocent persons in this false fraud case. Further, there are no evidence on record for franking and posting the annual reports of Escorts Ltd, Faridabad by M/s Abhishek Enterprises, except the depositions of interested witnesses belonging to Escorts Ltd, Faridabad.
105. It has further argued that demand drafts were not issued in favour of M/s Abhishek Enterprises, its proprietor or other individual persons. There is no document on record on whose direction, by whom and as per which order/circular, the 16 demand drafts having different amount had been issued in favour of Senior Post Master Ghaziabad by the Escorts Ltd, Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 40 of 197 Faridabad and it was the duty of the investigating agency to ascertain the concerned record and produced the same in the Court. It has been argued that the sanction for prosecution were granted mechanically and without applying own mind of sanctioning authorities, therefore, the sanction orders are defective in nature. It has been further argued that there has been no direct or circumstantial evidence to show meeting of minds, if any, between the accused persons. Hence, it has been prayed that accused persons A-1 to A-6 and A-9 deserve clean acquittal from all charges.
106. It has been argued by Ld. Counsel for A-8, A-10 and A11 that the competent authority while according the sanction failed to observe the rules as contained in and applicable in the present matter and therefore injustice has been caused to the accused persons. It is argued that duty of the accused Om Prakash and Brij Dev Goswami was to receive and process the negotiable instruments sent by different sub-post offices under the main post office Ghaziabad only and no money has been recovered from any of the accused persons or trail of money was not alleged by the prosecution against the present accused persons. It has been further argued that no evidence has come against them that they violated any rule of Postal Department in processing the demands drafts. Hence, it has been prayed that allegations of the prosecution against the present accused persons are baseless and no offense is made out against them and they deserve the acquittal in this case.
WHAT IS FRANKING MACHINE AND WHAT IS FRANKING?
107. Before proceedings further it would be fruitful to have an introductory Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 41 of 197 idea as to what Franking Machine is. From the testimonies of witnesses as well as from the submissions of Ld. PP for CBI and Ld. Defense Counsels, Franking Machine appears to be a machine which is used to print on the envelopes/posts/daks/mails, two impressions (round and rectangular) showing payment of postage in place of adhesive postal stamps. Within the machine are fitted two dies - one round and one rectangular. Round die within circular contour leaves impression of inscription of name of post office, pin code and license number of the party/vendor to whom license to use franking machine have been issued. Rectangular die within rectangular contour leaves impression of inscription of country, date, value of postage and meter unit number of the machine. Franking Machine is used by bulk mailer who applies to appropriate post office for issuance of license to use Franking Machine and concerned post office after having satisfied with its requirement and rules issue such license for a fixed period to the applicant and notify the post office from which Franking Machine could be recharged and from which franked mail/dak could be posted. Besides the notified post office, neither mail could be posted nor could franking machine be recharged. Once license is granted Franking Machine has to be charged with pre-paid value by depositing equal amount with notified post office. Franking Machine could be used within the license period as long as there is pre-paid value in it very much akin to pre-paid mobile phones for making out-going calls. Further, post office keep the record of amounts for which Machine was recharged and mails the mailer had sent. The act of printing impression through the Franking Machine is called "Franking" and the imprinted envelope/dak is called "Franked mail/post/dak".
Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 42 of 197 ANALYSIS, APPRECIATION & FINDINGS
108. In nutshell case of the prosecution is that 88,171 copies of Annual Report of Escort Ltd. for the year 2000-2001 were dispatched/posted from Kausambi Post Office, by M/s Abhishek Enterprises, a licensed franking bulk mailer, of accused Dinesh Sharma but whole-solely run by accused Gajender Kumar Sharma, by forged franking using fake die in Franking Machine bearing Unit No. PB-5507 which was purchased by M/s G.K.S. Services (B-612, Dabua Colony, Opp- Dabua Old Police Station, NIT, Faridabad) of accused Gajender Kumar Sharma but lying with him as spare/unused as he could not get license from SSPO, Faridabad. It is further the case of the prosecution that amount of Rs 14,59,657/- paid by Escort Ltd. by way of 16 DDs in favour of Post Master, Ghaziabad towards filling value in the franking machine that is to say for recharging the Franking Machine was misappropriated by accused persons by opening three saving banks account in Kausambi Post office and Mukundnagar Post Office and by way of purchasing postal stamp worth Rs. 6 lacs and by withdrawing amounts from those saving bank accounts. Thus, accused persons in pursuance of their criminal conspiracy cheated the Postal Department of Rs. 14,59,657/- and in the process committed various offenses to cheat the postal department of Rs. 14,59,657/-. For better understanding and clarity, issues involved in the present case are taken up issue-wise one after another hereinafter.
Detection/discovery of Cheating/Crime
109. There is neither any dispute about the commission of offense of Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 43 of 197 cheating Postal Department alleged in this case nor is there any dispute about the manner in which crime was detected. It is not the stand of the defense that no cheating along with all necessary incidental offenses alleged in the case had taken place, rather the stand of the defense is that none of the offense alleged in the case were committed by them either alone or in conspiracy with each other. Prosecution has examined PW3 S. L. Makkar, PW30 Sh. Mahender Singh and PW40 Sh. J. P. Rajoure who had discovered the cheating involved in the case requiring thorough investigation by an Investigating Agency. PW3, PW30 and PW40 corroborated each other and defense did not dispute discovery of cheating by them or conclusion arrived at by them so far as discovery of cheating is concerned. Nowhere defense suggested to them that they did not find what they deposed to have seen and found nor did defense suggest that what they found did not point out commission of cheating on postal department calling for reporting and investigation by competent agency.
110. PW3 Sh. S. L. Makkar in his examination-in-chief deposed that he joined Central Checking Squad of the Postal Department in April 2001 as Asst. Director and Mr. Mahender Singh (PW30) and Mr. J. P. Rajoure (PW40) were also posted in the same office as Asst. Superintendents. He further deposed that they had regularly visited post offices situated in Delhi as well as surrounding areas of Delhi for routine checking. He further deposed that his office was empowered to check any post office in India.
111. He further deposed that on 14.09.2001 when he along with his above said two subordinates had visited the Faridabad Head Post Office as usual checking and while visiting the delivery branch of the said post Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 44 of 197 office, he had happened to see an unregistered parcel received returned as undelivered for Escort Ltd. and as it was the first chance to see an Annual Report in unregistered parcel which was also torn, he had picked up the packet to check the contents of the same and to see whether annual report of a company could be sent in an unregistered parcel as till then they had been sent as book post. He further deposed that the packet had been bearing franked stamp of Rs.16/- and license No. "VMS/UP- 23/47/99 Ghaziabad 245201".
112. PW3 further deposed that subsequently on his next visit he had gone to Ghaziabad Head Post Office where he had asked about the said license being attached to that Head Post Office for filling of franking machine and accepting the postal articles. He further deposed that after checking record Head Post Office officials had informed him that no such franking machine had been attached with their post office and they had not been accepting postal articles (of the said alleged licensee). He further deposed that he then had rang up the Sr. Superintendent Post Office, Ghaziabad to confirm if the above license (VMS/UP-23/47/1999) had earlier been issued by his office as he was the authority to issue franking license. He further deposed that he had been told after checking record that said office had issued license No. UP-23/0047/99 to Rashtriya Sahara working at Noida and not to anybody else which fact created doubt about the genuineness of the use of franking machine (with license No. VMS/UP-23/047/99) and the articles franked by it.
113. PW3 further deposed that in another visit they had visited Noida Sector-
19 Post Office and checked if the license No. VMS/UP-23/47/99 had been attached with that Post Office and the post franked under the said number being accepted by them. He further deposed that he had been Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 45 of 197 informed no such license had been attached with the office rather license No. UP-23/0047/99 had been attached with the office relating to Rashtriya Sahara. He further deposed that office of Rashtriya Sahara had been contacted on telephone and requested to send record relating to the franking No. UP-23/0047/99 and it had been found that they had been allotted license No. UP-23/0047/99 issued by Sr. Superintendent of Post Office Ghaziabad and the PIN Code No. of Ghaziabad Head Post Office was 201001 and not 245201 as inscribed on the impression of franking (on the returned envelope).
114. PW3 further deposed that to inquire the case further they had gone to the office of Escort Ltd., Faridabad and contacted Mr. Vinod Dixit DGM and requested him to produce the records relating to the posting of Annual Report of 2000-01. He further deposed that it had been found that they (Escort) had authorised M/s Abhishek Enterprises as mailer to post their mails for the year 2000-01 and had informed that they had paid 16 cheques worth Rs. 14,59,657/- for the said purpose to M/s Abhishek Enterprises. He further deposed that he had been informed that one of his employee Mr. Aman Sharma had been sent with the articles who after being called could not satisfy as to where and how said articles had been franked and posted. He further deposed that they had wanted to have the records relating to postings but the DGM Mr Vinod Dixit hesitated to hand over without proper authority of the competent authority and subsequently he had been given letter from the Postal Directorate authorising them to collect the related records.
115. PW3 further deposed that they had again visited Ghaziabad Head Post Office to check up how the cheques given by the Escort Ltd. were deposited of by them but they showed their inability regarding receipt in Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 46 of 197 their office. He further deposed that after further inquiries it had been found that out of 16 cheques two had been deposited in Mukund Nagar Post Office, Ghaziabad in some personal account No. 747913 and one in another personal account No. 300122 at Kausambi Post Office and seven of them had been deposited in Kausambi Post Office in some personal account No. 300118 and six cheques had been given at Mukundnagar Post Office for purchase of postal stamps of Rs 6 Lacs which were purchased on 13.09.2001 and 18.09.2001 whereas articles were posted from 1st to 4th September 2001 as per the certificate given by M/s Abhishek Enterprises to Escort Ltd.
116. He further deposed that since the amount received from Escort Ltd. for the purpose of franking and posting of articles had been misused the case was reported to the Senior Postal Authorities and requested to hand over the case to Investigating Agency for further investigation. He further deposed that he had prepared a report to this effect which was Ex. PW3/A bearing his signature at point A and said report was given to CBI vide receipt Memo Ex. PW3/B which bore his signature at point A.
117. In cross examination he deposed that he did not remember if he had asked about the date of issue of 16 demand drafts. He did not remember if he had seen bank drafts in original or copies thereof and also did not remember from who he had learnt about the dates of demand drafts. He had not got confirmed if the daks of M/s Escort Ltd. were franked much before and the demand drafts had been issued on some later date. He further deposed that his report was given by postal authority and not by him personally and in his report he had suggested that matter be investigated by CBI or any other investigating agency. He had not marked any copy of his report to the Vigilance of the Postal Department, Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 47 of 197 though there was a vigilance cell in the Postal Department. He had submitted his report to Assistant Director General, Vigilance.
118. Rest of his cross examination relate to other aspect of his testimony in examination-in-chief. He was not given suggestion that he had not discovered the crime in the manner he deposed to or what he discovered should not have roused in him any suspicion. He was not given suggestion that what he discovered did not show commission of crime/cheating etc. Thus, defense did not dispute detection or discovery of cheating and other offenses requiring thorough investigation by Competent Agency to find out who committed it and to get the offender punished. PW30 Sh. Mahender Singh and PW40 Sh. J. P. Rajoure fully corroborated PW3 and there respective cross examination also do not show any attempt on the part of the defense to dispute the occurring and detection of crime.
119. Though, Ld. Defense counsel during final argument has sought to take some benefit from observation of PW3 made by him in his report Ex PW3/A but suffice it to say that his report has led postal authorities to get the matter Investigated by a Competent Investigating Agency. His report is not the basis of trial of the accused persons rather it is the report of IO under Section 173(2) CrPC which has formed the basis of trial of the accused person. Moreover, report Ex PW3/A was not directed towards finding out as to who committed the crime/offense rather his reports was directed towards pointing out leakages and consequent requirement to get the matter investigated. Hence, defense cannot draw any benefit of any observation made in the said report. Thus, from the above discussion it stands proved that offense of cheating along with all other offenses that went into making cheating Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 48 of 197 possible, was detected/discovered by PW3, PW30 and PW40 leading to making of complaint to investigating agency to investigate. It has now got to be seen if the offenses as alleged and charged in the present case were committed by the accused persons or not.
Whether M/s Abhishek Enterprises was licensed Franking bulk mailer? Who was its proprietor and who ran it? What was Franking Meter Unit for which Franking License was granted to M/s Abhishek Enterprises?
120. In this regard testimony of PW2 Sh. Rajbir Singh is relevant. At relevant time i.e. in the year 2001-2002 PW2 Rajbir Singh was Assistant Superintendent of Post Offices (in short ASPO) in South West Division, Chanakyapuri, New Delhi. He deposed that as an ASPO his duties were to supervise the work of various post offices within his limit and inspection of post offices including offices that were involved in franking related business. He in his testimony explained what Franking Machine was, what for same was used, how license for using the same used to be obtained and what procedure used to be followed by postal department for granting license for use of franking machine by bulk mailer.
121. Upon seeing document D-56 containing 41 pages, PW2 Rajbir Singh deposed that it was file in respect of M/s Abhishek Enterprises, F-93/1 Katwaria Sarai near Shiv Mandir, New Delhi-16, maintained in the office of Sr. Superintendent of Post Offices (in short SSPO), South West Division, New Delhi. Upon seeing an application at page No.9 of the said file, submitted to SSPO South West Division, Chanakyapuri by M/s Abhishek Enterprises, he deposed that said application (subsequently exhibited as Ex PW2/A) was accompanied by a photocopy of telephone bill Ex PW2/B installed in the name of Sh. Naresh Kumar for the period Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 49 of 197 1.5.99 to 15.07.99, a rent receipt dt. 10.8.99 Ex PW2/C issued by said Sh. Naresh Kumar to Dinesh Kumar proprietor Abhishek Enterprises for renting his premise 93 Katwaria Sarai, New Delhi-16 for a monthly rent of Rs. 3000/-, a photocopy of ration card Ex PW2/D of Naresh Kumar and a photocopy of his ration card Ex PW2/E. PW2 Rajbir Singh further deposed in examination-in-chief that application Ex. PW2/A was processed in the offices of Sr. Superintended, South West Division, Chanakyapuri, New Delhi and Sh. S. D. Khanna (PW12), the then Public Relation Inspector was entrusted with the job of verification of the said applicant Abhishek Enterprises.
122. PW2 Rajbir Singh identified the signature of Sh. V. K. Jain, the then Assistant Superintendent of Postal Department, South West Division, New Delhi, at point A on the letter (Ex PW2/F) ( office copy) encircled in red ink on page 12 of the said file. Vide this letter Public Relation Inspector (Franking Machine) was asked to verify the case (in respect of issuance of franking machine and license in favour of M/s Abhishek Enterprises). He (PRI) was also asked to obtain "00" impression of the value die on both the window tickets. PW2 Rajbir Singh identified the handwriting and signature of S.D. Khanna (PW12), the then Public Relation Inspector (Franking Machine) on the report Ex PW2/G also encircled in red ink below Ex PW2/F, submitted to SSPO. Vide this report PRI (FM) Sh. S. D. Khanna (PW12) reported that signature of the licensee Sh Dinesh stood verified and that supplier had supplied Meter No. PB-5235 (Franking Machine) and he (S. D. Khanna) had enclosed documents mentioned therein.
123. PW2 Rajbir Singh further deposed that application Ex. PW2/A was also accompanied with letters dt. 30.07.99 ( available at page No.7 and 8 of the Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 50 of 197 said file) from Kilburn Reprographics Ltd. He identified the signatures of Dinesh on the back side of application Ex PW2/A at places marked as Q104, Q103A and Q105. He further deposed that signature of Dinesh were verified by Sh. S. D. Khanna, the then PRI (FM) and endorsement by him in this regard was at point C on the back of Ex PW2/A. The letter at page No.8 Ex PW12/C is in fact 'Recommendation of the Supplier' from Kilburn Reprographic Limited by which it has been certified by it that applicant was a genuine party and Franking Machine as per particulars mentioned therein would be supplied by it. It had certified that it would supply Franking Machine of "PITNEY BOWES A 900" bearing Meter No. "PB-5235" with identification mark "A.E". Similarly, the above said letter at page No.7 (also exhibited as Ex PW12/C) is "Certificate of Fitness of Franking Machine" in respect of Franking Machine No. PB-5235 manufactured/marketed by M/s Kilburn Reprographics to M/s Abhishek Enterprises, F-93/I, Katwaria Sarai, New Delhi.
124. PW2 Rajbir Singh in his examination-in-chief further deposed that M/s Abhishek Enterprises was given a license for franking machine by the Directorates of Postal Service, South West Division, New Delhi on 16.09.99. He identified the office copy of license Ex PW2/I issued to M/s Abhishek Enterprises at page No.14 of the above said file (D-56). He identified the official seal and signature of the then SSPO Smt. B. P. Sridevi at point A on the back of Ex PW2/I. He further deposed that one franking machine window ticket Ex PW2/J showing the details of license was also issued to M/s Abhishek Enterprises on 16.09.99 bearing official seal and signature of the then SSPO Smt. B.P. Sridevi at points A and B. He further deposed that original license was sent to the licensee Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 51 of 197 i.e. M/s Abhishek Enterprises through registered post along with four other persons as per details given on the back of the Ex PW2/I while retaining office copy in the file.
125. He further deposed that M/s Abhishek Enterprises vide application dt.
09.01.2001 Ex PW2/K had requested SSPO, South West Division, New Delhi for the change of address of M/s Abhishek Enterprises from F-93/I Katwaria Sarai, New Delhi to 92A, Munirka, New Delhi. Said application Ex PW2/K was accompanied with photocopy of the ration card Ex PW2/L of the landlord Ashok Tokas (PW44), a rent receipt dt. 2.01.2001 Ex PW2/M issued by Ashok Tokas in the name of Dinesh Sharma. He further deposed that both Ex PW2/L and Ex PW2/M bore the official seal and signature of Padam Singh (PW11), the then PRI, Chanakyapuri Post Office, New Delhi at point A. He further deposed that matter regarding the change of address was processed in the office of SSPO vide process note Ex PW2/N bearing signature of Sh. V.K. Jain the then ASPO. He further deposed that application Ex PW2/K was referred to Sh. Padam Singh (PW11), the then PRI, for verification and report. He further deposed that carbon copy of the verification report dt. 15.01.2001 Ex PW2/O of Sh. Padam Singh (PW11) was available in the file at page No. 21 of the file (D-56). He further deposed that after receiving the report Ex PW2/O the request of M/s Abhishek Enterprises for the change of address was allowed and a letter dt. 22.01.2001 (office copy of which is Ex PW2/P) to this effect was issued to M/s Abhishek Enterprises.
126. PW2 Rajbir Singh was cross examined by Counsel for accused Dinesh Sharma and Gajender Kumar Sharma but the line of cross examination was not directed towards denying the issuance of license to M/s Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 52 of 197 Abhishek Enterprises. No suggestion was given that M/s Abhishek Enterprises did not apply for grant of license or that accused Dinesh did not sign the application Ex PW2/A or that M/s Abhishek Enterprises was not the firm of accused Dinesh Sharma or that no license for franking by way of Franking Machine Pitney Bowes A 900 having meter No. PB- 5235 with identification mark "A.E." was issued to M/s Abhishek Enterprises. No doubt PW2 Rajbir Singh in cross examination deposed that he had identified the signature of Dinesh Sharma only on the basis of departmental record and not on the basis of his personal knowledge but in the absence of above noted denial or suggestion case of prosecution stands on better footings. Further, accused Dinesh Sharma in his statement under Section 313 CrPC stated that he was running a firm namely M/s Abhishek Enterprises from rented accommodation at F-93/I, Katwaria Sarai, New Delhi. With respect to issuance of license for franking and change of address of his firm, accused Dinesh Sharma in his statement under Section 313 CrPC stated that same were matter of record which means he did not deny it.
127. PW11 Padam Singh {who at relevant time was Public Relation Inspector (Franking Machine) in Chanakyapuri Post Office, New Delhi and whose official seal and signature PW2 Rajbir Singh had recognized on verification report Ex PW2/O} upon seeing the license file of Abhishek Enterprises under the proprietorship of Dinesh Sharma, deposed in his examination- in-chief that number of license was DL-5/199/99. He corroborated the testimony of PW2 Rajbir Singh so far as issuance of license to M/s Abhishek Enterprises and request for change of address of the firm are concerned. He identified his signature on verification report Ex PW2/O.
128. The line of cross examination of PW11 was also not directed towards denying the issuance of license to M/s Abhishek Enterprises. No Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 53 of 197 suggestion was given that M/s Abhishek Enterprises did not apply for change of address or that witness PW11 did not submit verification report Ex PW2/O or that M/s Abhishek Enterprises was not the firm of accused Dinesh Sharma.
129. PW12 Shiv Dutt Khanna also corroborated PW2 Rajbir Singh and PW11 Padam Singh. PW12 Shiv Dutt Khanna in his examination-in- chief upon seeing the license file of Abhishek Enterprises Ex PW11/A (D-56 &57) deposed that letter No. DL-5/00/99 dt. 4.08.99 Ex PW2/F was marked to him by ASPO, South West Division, New Delhi and that letter was supported by an application Ex PW2/A, registration receipt Ex PW12/A, supplier recommendation Ex. PW12/B and fitness certificate Ex PW12/C. He further deposed that he had verified the address and had submitted his report dt. 02.09.199 Ex PW2/G bearing his signature at point B on the letter Ex PW2/F. He further deposed that he had submitted a copy of telephone bill Ex PW2/E, rent receipt Ex PW2/B, "00" impression of franking machine, photocopy of the ration card of the landlord Ex PW2/C and of the applicant Dinesh Sharma Ex PW2/D duly attested by him. He further deposed that thereafter license No. DL-5/0199/99 (wrongly typed as DL-5/0199/09) dt. 16.09.1999 Ex PW2/I was issued to M/s Abhishek Enterprises.
130. PW12 Shiv Dutt Khanna was not cross examined by accused persons on any of the points he deposed except whether he had heard of any fraud committed by M/s Abhishek Enterprises as long as he remained in service. Thus, even in the case of PW12 Shiv Dutt Khanna there was no denial of the fact that M/s Abhishek Enterprises of Dinesh Sharma was issued franking license vide license Ex PW2/I.
131. PW42 Mukesh Chander Sharma was working in M/s Abhishek Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 54 of 197 Enterprises at Prateek Market, Munirka, New Delhi, in the year 2001-
02. He deposed that Dinesh Sharma was the proprietor of M/s Abhishek Enterprises and he correctly identified accused Dinesh Sharma in the Court. He further deposed that accused Gajender Kumar Sharma present in the court was looking after the work of M/s Abhishek Enterprises like its proprietor in the absence of Dinesh Sharma. He volunteered that Dinesh Sharma usually did not attend the office and Gajender Sharma was looking after the work of the company. In cross examination by Ld. PP he admitted that accused Dinesh Sharma and Gajender Kumar Sharma were his relative. He also admitted that franking machine of M/s Abhishek Enterprises was taken away (seized) by the officials of Post Office, Chanakyapuri and it was taken in his presence.
132. In cross examination by Counsel for accused Dinesh Sharma and Gajender Kumar Sharma, PW42 was made to admit that "Abhishek" was the name of minor son of accused Gajender Kumar Sharma and that the firm M/s Abhishek Enterprises was opened in the name of Dinesh Sharma though he was not participating in the work of the said firm. (Here only it will be worthwhile to note that during final argument Mr. Prasad, Advocate for Gajender and others had argued that prosecution had failed to prove that Sh. Gajender Kumar Sharma was running the firm M/s Abhishek Enterprises oblivious of the case set up by defense during cross examination of PW42). During cross examination PW42 was further made to admit that after seizure of franking machine of M/s Abhishek Enterprises (by postal authorities) no other franking machine was purchased by said company.
133. PW44 Sh. Ashok Tokas deposed about letting of his house 92A, Prateek Market, Munirka, New Delhi, on rent to M/s Abhishek Enterprises on monthly rent of Rs. 6500/-. He also deposed about M/s Abhishek Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 55 of 197 Enterprises being controlled by accused Gajender Kumar Sharma who was correctly identified by him in the court. The line of his cross by counsel for accused persons was also not towards denial of taking of aforesaid premise on rent by M/s Abhishek Enterprises from him or was running of firm by Gajender Kumar Sharma.
134. Thus, from the testimonies of above noted witnesses which were almost not disputed by the accused persons particularly by accused Dinesh Sharma and Gajender Kumar Sharma and also in view of the statement of accused Dinesh Sharma under Section 313 CrPC, prosecution has successfully proved beyond reasonable doubt that accused Dinesh Sharma was the proprietor of M/s Abhishek Enterprises but same was being run or looked after by accused Gajender Kumar Sharma which is the case of the prosecution and somewhat stand of the defense also as noted from the testimony of PW42 Mukesh Chander Sharma when the witness was made to admit so by defense. Defense cannot wriggle out of the suggestion given to witnesses during cross examination and cannot be heard to say that prosecution has not proved any documents to show authorization by accused Dinesh Sharma in favour of accused Gajender Kumar Sharma to run and look after M/s Abhishek Enterprises.
135. Further, prosecution has successfully proved beyond reasonable doubt that M/s Abhishek Enterprises through Dinesh Sharma had applied to SSPO, Chanakyapuri Post Office, South West Division, New Delhi, for grant of license for Franking Machine for bulk mailing. Prosecution has successfully proved that M/s Abhishek Enterprises was granted license for franking machine vide license Ex PW2/I bearing No. DL-5/0199/99 dt. 16.09.99 in respect of Franking Machine make "Pitney Bowes A- 900" bearing meter No. PB-5235 with identification mark "A.E".
Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 56 of 197
136. Furthermore, the above fact also stands proved from documentary evidence. There is no denial that file (D-56 & D-57) collectively exhibited as Ex PW11/A is the office file regarding issuance of franking license to M/s Abhishek Enterprises of Dinesh Sharma at F-93/I, Katwaria Sarai, New Delhi which got changed its address to 92A, Prateek Market, Munirka, New Delhi. Perusal of license Ex PW2/I also confirm that license bearing No. DL-5/0199/99 dt. 16.09.1999 in respect of Franking Machine make "Pitney Bowes A-900" bearing meter No. PB-5235 with identification mark "A.E." was issued to M/s Abhishek Enterprises, F-93/I, Katwaria Sarai, near Shiv Mandir, New Delhi-16. Further, it shows that Chanakyapuri Post office New Delhi was filing station and CPO-I and CPO-II, New Delhi were the office of posting.
Whether accused Gajender Kumar Sharma being proprietor of M/s G.K.S. Services had applied unsuccessfully for license for franking to SSPO, Faridabad and whether he had purchased Franking Machine PB- 5507 of make Pitney Bowes?
137. Simply going by the statement of the accused Gajender Kumar Sharma under Section 313 CrPC, it can be said that he had not disputed that he being the proprietor of M/s G. K. S. Service had purchased a Franking Machine bearing meter No. PB 5507 of make Pitney Bowes and had unsuccessfully applied to Post Office Faridabad for grant of Franking License for the said machine. In response to question No. 105, 106 and 108 wherein evidences appearing against him regarding his applying for franking license and having purchased Franking Machine meter unit bearing No. PB-5507, were put to him, he replied them as same being "matter of record". He did not say that he never applied or purchased the franking machine bearing No. PB-5507 or that documentary records in Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 57 of 197 this regard were forged or were wrong.
138. Irrespective of the above, it is on record that PW33 Sh. Ramesh Chand Meena, who was an Inspector in the postal department at Faridabad, in his examination-in-chief, upon seeing receipt memo (D-117) dt. 21.11.2002, deposed that vide receipt dt 21.11.2002 Ex PW33/A he had handed over one file to the Investigating Officer (IO) containing papers from Sl. No. 1 to 17 relating to Franking License applied by M/s G. K. S. Service, B/612, Dabua Colony, Faridabad. He further deposed that firm was asked to supply certain information which was not supplied and therefore no license to the said firm was granted. All the papers of G. K. S. Service from page 1 to 17 were marked as Ex PW33/A1.
139. In his cross examination conducted on behalf of accused Gajender and others, he deposed that he had stated to the investigation officer of the CBI that as per record, query had been made from the applicant firm M/s G.K.S. Services for furnishing some information in response to its application dated 08.06.2000 but the firm did not respond to the said query. He further deposed that thereafter party had not approached the office for the grant of license. He admitted that license from Post Office was required to be obtained before purchasing the Franking Machine. He denied the suggestion that he did not have any personal knowledge. There was no suggestion that accused Gajender Kumar Sharma had not applied for grant of license or that he was not the proprietor of M/s G.K.S. Service as reflected from the papers in the file nor was there any suggestion that file was not the genuine office file or that file or papers in it did not relate to M/s G.K.S. Services.
140. PW34 Gursharan Singh was working as Regional Accounts Manager with M/s Kilburn Raprographic Ltd. which was dealing in sell of Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 58 of 197 Franking Machine of make Pitney Bowes. He deposed that vide receipt memo dt 13.09.2020 Ex PW34/A (D-101) he had handed over to CBI documents pertaining to purchase of electronic Franking Machine bearing meter units No. PB-5325 (wrongly typed in evidence sheet as PB- 5230) and PB-5507 to M/s Abhishek Enterprises and M/s G. K. S. Services respectively. He identified the request letter dt. 12.06.2000 Ex PW34/A4 made by M/s G. K. S. Services ( for sale of meter unit) to M/s Killburn Raprographic Ltd. He also identified the receipt No. 216 dt. 12.06.200 Ex PW34/A5 issued by M/s Killburn Raprographic Ltd. regarding receipt of Rs. 60,000/- from M/s G. K. S. Services, B-612, Dabua Colony, Faridabad against cash. He also identified the invoice No. PBA/00089 dt. 16.06.2000 Ex PW34/A6 regarding purchase of meter (M/c PB5507) for Rs. 60,000/-.
141. In his cross examination purchase of Franking Machine meter unit No. PB-5507 by M/s G. K. S. Service was not disputed at all by the accused persons. No suggestion was given that M/s G. K. S. Service did not request for purchase of Franking Meter Unit nor did it make any payment for purchase of the same or that machine was not supplied to him before grant of license.
142. Though strictly speaking PW33 and PW34 cannot be said to have proved the documents that they had respectively handed over to CBI except the receipt memos vide. which they had handed over documents to CBI but the oral unquestioned testimonies of the witnesses PW33 and PW34 coupled with statements of the accused under Section 313 CrPC (response to question No. 105 & 106 ), leads this court to believe beyond doubt the case of prosecution that accused Gajender Kumar Sharma being proprietor of M/s G. K. S. Service had unsuccessfully applied for Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 59 of 197 grant of franking license for franking and that he had purchased Franking Machine bearing meter Unit No. PB-5507 of make Pitney Bowes.
Whether Escort Ltd. had awarded to M/s Abhishek Enterprises the job of mailing its 88171 Annual Reports for the year 2000-2001?
Whether the Annual Reports of Escort Ltd. were delivered at Ghaziabad to Gajender Kumar Sharma of M/s Abhishek Enterprises for mailing?
143. It is the case of the prosecution that Escort Ltd. had awarded to M/s Abhishek Enterprises the contract of mailing its 88171 Annual Report for the year 2000-01 to its shareholders and the entire printed Annual Reports were got delivered at Ghaziabad to Gajender Kumar Sharma of M/s Abhishek Enterprises. So far as the stand of accused Dinesh Kumar and Gajender Kumar Sharma in their respective statements under Section 313 CrPC in relation to the above issues, are concerned, they have categorically denied that any such contract was awarded to M/s Abhishek Enterprises, hence prosecution has got to prove them beyond reasonable doubt.
144. PW22 Sh. Vinod Dixit was the General Manager at relevant time in the Escort Ltd. 15/5, Mathura Road, Faridabad. He in his examination-in- chief deposed that Escort Ltd. was listed with the Bombay Stock Exchange, National Stock Exchange and Delhi Stock Exchange and was having about 80,000 to 90,000 shareholders to whom Company used to send Annual Reports once in a year. He further deposed that vide receipt Memo (D-6) dt. 22.03.2002 Ex. PW22/A bearing his signature at point A, he had handed over various documents mentioned therein to the inspector R. L. Yadav (PW57). He further deposed that during the year 2001 Annual Reports were got printed from International Print-O-Pack Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 60 of 197 Ltd. vide challan-cum-Invoice No. 1226 dt. 30.08.2001 Ex. PW13/A (D-
9) and invoice No. 1227 dated 30.08.2001 Ex PW13/B (D-11). He further deposed that Annual Reports were delivered to the mailer i.e. M/s Abhishek Enterprises. He further deposed that assignment for mailing Annual Reports was assigned to M/s Abhishek Enterprises during the year 2001 as well.
145. He further deposed that vide Challan/Gate Pass Ex PW19/A (D-7/1) 7500 copies of Annual Report were received by the mailer and on behalf of mailer accused Gajender Kumar Sharma, whose signature he identified at point A, had received the Annual Reports. He (PW22) also identified his signature as well signature of Accountant Mahesh Kapoor at point D and E respectively on Ex PW19/A. He similarly deposed that vide Challans Ex PW22/A-3 (D-7/2) mailer under signature of accused Gajender Kumar Sharma at point A, had received 7125 copies of Annual Reports and 15,000 notices and he identified his signature as well signature of Accountant Mahesh Kapoor at point D and E respectively on Ex PW22/A-3. He went on to depose that vide challan/gate pass Ex PW13/D-1 (D-7/3) mailer under signature of accused Gajender Kumar Sharma at point A, had received 8300 copies of Annual Reports and 11,000 proxy notices and also identified his signature as well signature of Accountant Mahesh Kapoor at point B and C respectively on Ex PW13/D-1. He further deposed that vide challan/gate pass Ex PW22/A- 4 (D-7/4) 7500 Annual Reports were sent to the mailer under his signature at point A and that of Mahesh Kapoor at point B and round seal of M/s Escort Ltd. at point C. He further deposed that vide challan Ex PW22/A-5 (D-7/5) mailer under signature of accused Gajender Kumar Sharma at point A, had received 7500 Annual Reports and he Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 61 of 197 also identified his signature as well signature of Accountant Mahesh Kapoor at point B and C respectively on Ex PW22/A-5. He further deposed that vide challan/gate pass Ex PW13/D-2 (D-7/6) 7500 Annual Reports and 44000 proxy notices were sent to the mailer under his signature at point A and that of Mahesh Kapoor at point B and round seal of M/s Escort Ltd. at point C. He further deposed that vide challan Ex PW22/A-6 (D-7/7) mailer under signature of accused Gajender Kumar Sharma at point A, had received 7500 Annual Reports and he also identified his signature as well signature of Accountant Mahesh Kapoor at point B and C respectively and round seal of the company at point D on Ex PW22/A-6. He further deposed that vide challan/gate pass Ex PW13/D-3 (D-7/8) 7500 Annual Reports and 11000 proxy notices were sent to the mailer under his signature at point A and that of Mahesh Kapoor at point B and round seal of M/s Escort Ltd. at point C. He further deposed that vide challan Ex PW13/D-4 (D-7/9) mailer under signature of accused Gajender Kumar Sharma at point A, had received 8300 Annual Reports and also identified his signature as well signature of Accountant Mahesh Kapoor at point B and C respectively and round seal of the company at point D on Ex PW13/D-4. He further deposed that vide challan Ex PW13/D-5 (D-7/10) mailer under signature of accused Gajender Kumar Sharma at point A, had received 2675 Annual Reports and 1000 proxy notices and also identified his signature as well signature of Accountant Mahesh Kapoor at point B and C respectively and round seal of the company at point D on Ex PW13/D-5.
146. PW22 Sh. Vinod Dixit in his examination-in-chief further deposed that letter dt 23.08.2001 Ex PW22/A-1 (D-13) was issued under his signature for taking permission (from post master) for mailing Annual Reports for Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 62 of 197 the year 2000-01 by unregistered parcel and in response to his letter, a letter dt 23.08.2001 Ex PW22/A-2 (D-16) was received regarding according of permission by the Sub-Post Master, Ghaziabad for mailing Annual Reports. He further deposed that M/s Abhishek Enterprises issued a confirmation certificate dt 07.09.2001 Ex PW22/A-7 (D-12) (regarding having sent mails) signed by accused Gajender Kumar Sharma at point A. He further deposed another letter dt. 28.08.2001 Ex PW22/A- 8 (D-14) was issued under his signature to the Sub-Post Master Ghaziabad for re-scheduling the mailing of Annual Reports for the year 2000-01 from 30.08.2001 to 05.09.2001.
147. He further deposed that a letter dt. 28.08.2001 Ex PW22/A-9 (D-15) was issued under his signature at point A to the security of M/s Escort Ltd. for allowing accused Gajender Kumar Sharma of M/s Abhishek Enterprises to carry out 31493 names and address list for dispatch of balance sheet from Serial No. 18,508 to 50,000. He identified the signature of accused Gajender Kumar Sharma at point B on Ex PW22/A-9.
148. PW22 Sh. Vinod Dixit further deposed that a letter dt 27.08.201 Ex PW22/A-10 (D-15/2) under his signature at point A was issued to the security of M/s Escort Ltd. for allowing Mr. Bhim Singh of M/s Abhishek Enterprises to carry out 20000 names and address list for dispatch of balance sheet from Sl. No. 50,001 to 70,000. He identified the signature of Bhim Singh at point-B. He further deposed that a letter dt 29.08.2001 Ex PW22/A-11(D-15/3) was issued under his signature at point A to security of M/s Escort Ltd. for allowing Mr. Bahadur Kumar of M/s Abhishek Enterprises to carry out 18507 names and address list for dispatch of balance sheet from Sl. No. 1 to 18507. He identified the Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 63 of 197 signature of Raj Bahadur Singh on it at point-B. He further deposed that vide letter dt 04.09.2001 Ex PW22/A-12 (D-17) Deputy Post Master, Ghaziabad confirmed dispatch of unregistered parcels mentioned therein. He deposed that vide letter dt 01.09.2001 Ex PW22/A-13(D-
18), letter dt 03.09.2001 Ex PW22/A-14 (D-19) and letter dt 04.09.2001 Ex PW22/A-15 (D-20) Sub Post Master, Ghaziabad confirmed the receipt of Rs. 5 lacs, 4,60,000/- and Rs. 1,79,657/- respectively by way of various DDs. He identified the letter dt. 31.08.2001 Ex PW22/A-19 from Sub-Post Master, Ghaziabad in respect of receipt of DDs mentioned therein. He further identified the bill No. 105 dt. 09.10.2001 Ex PW22/A-18 (D-61) which was received from M/s Abhishek Enterprises.
149. PW22 further identified the envelopes Ex PW22/A-10 (463 in numbers) returned undelivered to M/s Escort Ltd. He had handed over this returned envelopes to CBI. He further deposed that envelopes contained the address slip of shareholders, dispatch date/value franking stamp and a postal stamp in some envelopes illegible. He further said that employees Sunil Pathak (PW27), Aman Sharma (PW23), Kishan Kumar Sahi (PW28), Shailender Patre (PW43) were deputed to oversee the dispatch process at the venue at Ghaziabad.
150. Witness PW22 Vinod Dixit was cross examined by defense. There cannot be undermining of the proposition that cross examination of a witness plays very important role in proving/disproving a fact the witness testifies. Further, in criminal trial by way of suggestion to prosecution's witnesses during cross examination defense also sets up its defense. Line of cross examination gives an insight into the mind of the accused as to what his defense is or what defense is trying to get out of Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 64 of 197 the witness. In general accused remains in denial mode leaving everything upon the prosecution to prove its case but sometime he also sets up his own case and he does so during cross examination by way of suggestions to prosecution's witnesses and then explains it in his statement under Section 313 CrPC and may also choose to lead evidence to prove his own defense. But failure of the accused to prove his defense would not ipso facto prove the case of the prosecution.
151. Nevertheless, non-cross examination of a witness or non-cross examination on any point a witness depose to would amount to acceptance of his testimony about the fact witness deposed, if the same is otherwise not unnatural or impractical or irrelevant or against the ordinary course of business or nature. If accused person chooses to remain in denial mode, it's fine and thus prosecution shoulders the entire responsibility to prove the charge against the accused beyond reasonable doubt but if accused sets up a defense during cross examination of prosecution's witnesses then he may admit certain facts of the prosecution and may proceed to put the same fact in different manner or may put forth certain other facts to make things look different from what prosecution is trying to make it look. It is also worthwhile to note that defense is bound by its case or defense set up by it during the cross examination of prosecution witnesses. It cannot be argued that case set up during cross examination of prosecution witness is done by the advocate of the accused and not by the accused and therefore accused may not be bound by that. Accused being the principal is bound by the act of his agent advocate. Hence, accused cannot be permitted to wriggle out of its case set up during cross examination of prosecution witness.
152. What was the need to discuss the above general principal of criminal Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 65 of 197 jurisprudence? It was needed because accused persons particularly accused Dinesh Sharma and Gajender Kumar Sharma in their respective statement under Section 313 CrPC categorically denied the awarding of work of mailing Annual Reports of the Escort Ltd. ( to almost 80,000/90,000 shareholders) for the year 2000-01, to M/s Abhishek Enterprises. There is complete denial of any kind of work having been done by M/s Abhishek Enterprises with respect to sending of Annual Reports (for the year 2000-01) of M/s Escort Ltd. to the shareholders of the M/s Escort Ltd., but case set up during the cross examination of PW22 is different. It is self evident if the excerpts of the testimony of PW22 Vinod Dixit in cross examination conducted on 16.09.2013 is quoted below which is as under:-
"xxxxxxxxxxxxxxxxx ( - first three paragraphs skipped) It is correct that work of franking of postage on behalf of our company was being carried out by M/s Abhishek Enterprises from a premise located at Techno Plaza, Ghaziabad. It is correct that in receipt Ex PW22/A-18, no charges of rent of premises at Techno Plaza has been mentioned. It is correct that other than the postage charges, no other payment has been made to M/s Abhishek Enterprises except through the bill Ex PW22/A-18. It is correct that labour charges have not been separately mentioned in Ex PW22/A-18. Vol.- labour charges has not been specifically mentioned in the said bill because it was already included in the rates for postage of envelope etc. at the time of contract and therefore there was no need to mention it separately.
It is correct that all the demand ................................. ..................................... ... ... .. . . ... . . ................ ......................... .............................. It is correct that as per record, the entire work of postage was being carried out by M/s Abhishek Enterprises and there is nothing on record to show that there was any shortage of postage from the side of M/s Abhishek Enterprises.
...................................................................... It is wrong to suggest that the franking machine was arranged by our company and no franking machine of M/s Abhishek Enterprises was being used at Ghaziabad. Vol. The contract was given to M /s Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 66 of 197 Abhishek Enterprises because they had the license of the franking machine.
It is correct that the work contract was a time bound work and the time was the essence of the contract. It is correct that before granting contract to M/s Abhishek Enterprises, our company satisfied about the speed, capacity and capability of M/s Abhishek Enterprises so that the work may be completed within the time limit of 4-5 days. It is wrong to suggest that the franking machine licensed to M/s Abhishek Enterprises was not sufficient to complete the work within a time span of 4-5 days and therefore, the franking machine was arranged by our company. Xxxxxxxxxxxxxxx (- next paragraph of cross examination skipped) It is correct that about 400-500 postal envelopes were also sent to our customer through airmail. These envelopes were also sent by franking through the post office and were including in the contract with M/s Abhishek Enterprises.
No payment has been made................................... ........................... ...................................... ......................... ...................... .......... .............. ................ ........................the work shall be completed by M/s Abhishek Enterprises. It is wrong to suggest that the space/building at Ghaziabad was arranged by our company and therefore no charges on account of rent has been mentioned in the bill. It is wrong to suggest that the space/building at Ghaziabad was arranged by our company along with franking machine, and the job of M/s Abhishek Enterprises was to complete the work by arranging labour and skilled manpower. Xxxxxxxxxxxxxxx (next paragraph of cross examination skipped) Xxxxxxxxxxx ( further next paragraph of cross examination skipped) It is correct that our company .................... ............................. .......... ....... .......................................................... to the Ghaziabad Authorities. It is correct that address slips which were to be pasted on the envelopes were supplied by our company to M/s Abhishek Enterprises. We do not have any office copy of such address slips and therefore it was not submitted to CBI during investigation. It is correct that as per documents on record, the address slips upto serial no. 70000 is on record. Vol.- after serial no.
Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 67 of 197 70000 another address slips were also handed over to M/s Abhishek Enterprises but its proof was not furnished to CBI and is not available on record.
It is correct that the postages were sent by franking through M/s Abhishek Enterprises through unregistered posts. As per our contract only unregistered post were to be sent. If any letter/document, registered post has been mentioned it may be only a typographical mistake. In my statement u/s 161 CrPC due to inadvertence I would have mentioned "registered post" instead of unregistered post.
Xxxxxxxxxxxxxx (next paragraph of cross examination skipped) Xxxxxxxxxxxx (further next paragraph of cross examination skipped) It is wrong to suggest that franking machine (which was sold in Bombay by the company of the franking machine) was arranged by our company and was given to M/s Abhishek Enterprises for the completion of the job of franking. It is wrong to suggest that only the job of franking of postages was given by our company to M/s Abhishek Enterprises and accordingly M/s Abhishek Enterprises has charged amount of about Rs. 30,000/- under different heads vide receipt Ex PW22/A-18 only for the job work. It is wrong to suggest that transportation to post office, payment to the post, etc. was being managed by our employee/persons and not by M/s Abhishek Enterprises. It is wrong to suggest that four employees who were sent at Ghaziabad to look after the work of franking were our permanent employee and not the contractual employee as stated by me. It is wrong to suggest that I was involved in the entire episode and therefore in order to save my skin I misled the Investigating Officer by not producing the complete documents and falsely deposed before the court. It is wrong to suggest that instead of issuing one single demand draft for the entire work of franking to the post office, I purposely issued multiple drafts of Rs. one lac each to defraud M/s Escort and the Postal Authorities. It is wrong to suggest I have deposed falsely."
153. Relevant portion in the above quoted testimony of PW22 Sh. Vinod Dixit in cross examination has been highlighted in bold. From the highlighted portion in bold it can be seen that defense has taken up five Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 68 of 197 stands. Firstly, M/s Abhishek Enterprises was given only the job of franking of postages (means bringing out impression of town and value stamp/die on envelopes with the help of Franking Machine ) and other labour works as mentioned in the Bill Ex PW22/A-18. Secondly, the Franking Machine which was sold in Bombay by the manufacturer/dealer was arranged by the Escort Ltd. as the licensed franking machine of M/s Abhishek Enterprises was not sufficient to complete the work within 4-5 days. Thirdly, the work of franking was carried out at a premise located at Techno Plaza, Ghaziabad and fourthly, the premise at Techno Plaza was arranged by the company Escort Ltd. Fifthly, other than the postage charges (means admission of franking charges amounting to Rs. 14,59,657/-) and amount of Bill Ex PW22/A-18, no other payment has been made to M/s Abhishek Enterprises. Fifth stand regarding payment of postage charges is further clarified by the suggestion "that instead of issuing one single demand draft for the entire work of franking to the post office, I purposely issued multiple drafts of Rs. one lac each to defraud M/s Escort and the Postal Authorities".
154. Corollary to the above five stands taken by defense is the fact that Annual Reports were got printed, same were delivered to M/s Abhishek Enterprises at the premises located at Techno Plaza, Ghaziabad and that they were franked by a Franking Machine other than the one licensed to M/s Abhishek Enterprises.
155. It is also seen that signatures of accused Gajender Kumar Sharma on Challans/Gate passes Ex PW19/A, Ex PW22/A-3, Ex PW13/D-1, Ex PW22/A-5, Ex PW22/A-6, Ex PW13/D-4 and Ex PW13/D-5 vide which Annual Reports and Notices were received by the mailer M/s Abhishek Enterprises, were not questioned or disputed. Confirmation certificate Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 69 of 197 dt. 07.09.2001 Ex PW22/A-7 (D-12) under the signature of accused Gajender Kumar Sharma was also not disputed. Vide confirmation certificate Ex PW22/A-7 M/s Abhishek Enterprises under the signature of accused Gajender Kumar Sharma had certified that it had dispatched 88,171 Annual Reports 2000-01 of M/s Escort Ltd. from Sub-Post Master, Ghaziabad from 01/09/2001 to 04/09/2001 by unregistered parcel through franking. This was an important piece of documents but it was not at all touched by defense in cross examination of PW22 Vinod Dixit. No suggestion disputing this certificate in any manner was given by the defense to PW22 Vinod Dixit. Without disputing the documents during the cross examination of witness (PW22) argument of the defense cannot heard that document cannot be relied upon as it has some interpolation or manipulation.
156. PW22 Vinod Dixit was previously cross examined on 05.04.2010 but his responses in cross examination conducted on 05.04.2010 are not relevant here so far as questions whether contract of mailing Annual Reports of 2000-01 was awarded to M/s Abhishek Enterprises and whether Annual Reports were delivered to M/s Abhishek Enterprises at Techno Plaza Ghaziabad, are concerned particularly in view of the facts and reasoning recorded in the preceding paragraphs.
157. Thus, the testimony of PW22 Vinod Dixit in examination-in-chief as well as in cross examination particularly conducted on 16.09.2013 along with contents of unquestioned confirmation certificate dt. 07.09.2001 Ex. PW22/A-7 (D-12) and Bill dt. 09.10.2001Ex PW22/A-18 (D-61), are sufficient to hold that job of mailing Annual Report of Escort Ltd. for the year 2000-01 was awarded to M/s Abhishek Enterprises and that Annual Reports were delivered to M/s Abhishek Enterprises at Techno Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 70 of 197 Plaza, Ghaziabad and most of the Annual Reports were received by the accused Gajender Kumar Sharma himself. An attempt was made by Shri S. Prasad to take the bill Ex PW22/A-18 (D-61) out of consideration zone as it did not contain signature either of accused Dinesh Sharma or Gajender Kumar Sharma but suffice it to say when there was opportunity to the defense to question this document during cross examination of PW22 defense did not do so rather relied upon the same to claim that only pasting charges etc. were raised. Hence, argument of the defense that bill Ex PW22/A-18 cannot be relied upon, is not sustainable.
158. From the confirmation certificate dt. 07.09.2001 Ex PW22/A-7 (D-12) it also stands proved beyond reasonable doubt that 88,171 copies of Annual Report of Escort Ltd. for the year 2000-01 was dispatched/posted by franking by M/s Abhishek Enterprises. An argument was put forth by defense that even if M/s Abhishek Enterprises is bound to its Bill dt. 09.10.2001Ex PW22/A-18 (D-61), it would show that it had not undertaken the work of franking and had not charged the company for franking. Defense had argued that bill show that M/s Abhishek Enterprises had only charged handling charges i.e. filling, posting, address posting, envelopes rubber stamping, conveyance and bag charge. It has already been noted above that defense itself suggested to PW22 that apart from postages charges and bill amount no other payment has been made. Acceptance of receipt of postage charges (by way of multiple drafts of Rs. 1 lac as suggested) for franking itself demolish the contention of the defense.
159. Perusal of the bill Ex. PW22/A-18 does show that it contains drastic mathematical error. Against the quantity 88,657 at the rate of Rs 140/-
Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 71 of 197 amount charged has been shown Rs.12272.00 whereas it should have been Rs. 1,22,71,980/- and if calculated at the rate of Rs. 14/- it would have been 12,27,198/- and if calculated at the rate of Rs. 1.40/- then it would have been Rs. 1,22,719.80/-. Thus, at any rate figure is not coming to Rs. 12,272/-. Similarly, against the quantity of 87657 at the rate of Rs. 25/- amount charged has been shown as Rs. 2191/- whereas it should have been Rs. 21,91,425/- and if calculated at the rate of Rs. 2.5/- then it would have been Rs. 2,19,142.50/- and if calculated at the rate of Rs 0.25/- then it would have been Rs. 21,914.25/-. Thus, at any rate figure is not coming to Rs 2191/-.
160. Contents of the bill Ex. PW22/A-18 is not digestible and why it did not come into the notice of Escort is in itself a question which neither prosecution explained nor defense questioned, nevertheless since defense in the cross examination of relevant prosecution witness has not disputed raising of the bill Ex PW22/A-18 upon Escort Ltd., therefore, the contents particularly the items of work done by it cannot be read in favour of accused persons. It would have been read in their favour if they had made their statements under Section 313 CrPC in line with case set up by them during cross examination of prosecution witnesses.
161. Even if contention of the defense is accepted then question arises what was the need to issue certificate Ex PW22/A-7 certifying that it had posted/dispatched by franking 88,171 Annual Reports of Escort Ltd? Instead, the certificate would have been to the effect that it had filled (Annual Report in envelopes), pasted (pasted envelopes) and pasted address (i..e pasting of address slip on envelopes) and not to the effect that it had dispatched by franking. Moreover, once defense itself had not disputed confirmation certificate Ex PW22/A-7 certifying that it had Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 72 of 197 posted/dispatched by franking 88,171 Annual Reports, how could it argue that M/s Abhishek Enterprises had limited role of packaging, pasting etc. Defense cannot wriggle out of the contents of Ex PW22/A-7 without disputing its contents and execution in evidence.
162. Apart from PW22 Vinod Dixit, there is no direct witness on the point of awarding the job of mailing Annual report of Escort Ltd. for the year 2000-01 to M/s Abhishek Enterprises. But prosecution did examine other witnesses from whose collective testimonies prosecution sought to prove the otherwise above proved fact. First of them is PW17 Praveen Kohli who was working with printer International Print-O-Pack Ltd. at phase-II, Noida, UP as Manager (Commercial). He deposed that his duties were to deal with liaisoning work viz. custom excise, sales tax etc. and to ensure the dispatch of the finished goods. He identified his own signature at point-A at two places on challan-cum-invoice dt. 30.08.2001 (D-9) Ex PW13/A. He deposed that according to purchase order M/s Escort Ltd., Faridabad had placed a purchase order for printing 90,000 copies of their Annual Reports in the month of June-July 2001. He further deposed that as per instruction of M/s Escort Ltd. the goods were to be delivered at place i.e. at Shop No. 1035, Techno Plaza, Opposite Pousha Industries near Toyota Show Room, Meerut Road, Ghaziabad, UP. He further deposed that 8300 copies of Annual Reports were sent through vehicle Tata 407 No. U.P.-16-4316 and 8300 copies through same vehicle but at different time were dispatched through Challan-cum-invoice Ex PW13/B (D-11) bearing his signature at point A at two places.
163. PW17 was cross examined but the direction of his cross examination was not aimed at disputing the placement of purchase order for printing Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 73 of 197 of 90,000 Annual Report nor at delivery of finished goods at 1035, Techno Plaza, near Toyota Show Room, Meerut Road, Ghaziabad. Defense was busy in extracting some information from him but same is not relevant for the issue under consideration. PW17 was made to admit that when his statement was recorded by the CBI entire 90,000 copies were delivered. He denied the suggestion that printing was done in Okhla and not in Noida. This, suggestion shows that defense is disputing place of printing and not the printing (of Annual Reports). There was no suggestion to this witness that printed Annual Report were not delivered at 1035, Techno Plaza, Ghaziabad nor was there any suggestion that Challan-cum-invoices Ex PW13/A and Ex PW13/B were not genuine. Further, it has already been noted above that defense did not dispute delivery of printed materials to accused Gajender Kumar Sharma by questioning or disputing any Gate Passes Ex PW22/A, Ex PW22/A-3 to Ex PW22/A-6 and Ex PW13/D-1 to Ex PW22/D-4. Thus, both printing of 90000 copies Annual Report and its delivery as deposed to by witness were not disputed by defense.
164. PW13 Sh. Mangal Chand who was working as driver in M/s International Print-O-Pack Ltd., Okhla Industrial Phase-I, New Delhi, deposed that on 30.08.2001 and 31.08.2001 he had delivered 8300 Annual Reports of M/s Escort Ltd. at 1035, Techno Plaza, Meerut Road Ghaziabad on the direction of Shri Amarpal, Supervisor vide Challan- cum-invoice Ex PW13/A and Ex PW13/B by vehicle No. UP-16-4316, a Tata 407. He further deposed that on 01.09.2001 he delivered 8300 and 7500 packets. He further deposed that on 02.09.2001 he delivered 7500 packets and on 03.09.2001 he delivered 8300 and 2675 packets vide gate passes/challan available in the file D-1 to D-55, Ex PW13/C i.e Ex Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 74 of 197 PW13/D-1 to Ex PW13/D-5. While pointing out accused Gajender Kumar Sharma he deposed that goods were delivered to him (accused Gajender).
165. PW13 was cross examined but cross examination was more directed towards extracting information like who paid the octroi, how long it took to make to and fro movement from Noida to Ghaziabad or that men of Escort were present to receive the goods and finally he was given suggestion that all the documents were falsely prepared. No suggestion was given that he was not the driver of International Print-O-Pac or that he did not take the printed Annual Reports to Ghaziabad or that he did not deliver the goods to accused Gajender Kumar Sharma as pointed out by him in court or that he was not directed to deliver the goods at 1035, Techno Plaza, Ghaziabad.
166. PW19 Sh Dhani Lal was working as a driver in M/s Ganga Yadav Transport Service owned by Shri Ganga Parsad Yadav. He deposed that he used to drive Tata 407 bearing No. DL-1LD-6273. He further deposed that on 31.08.2001 he had taken 7500 packets from B-204, International Print-O-Pack, Okhla Phase-I, New Delhi to shop No. 1035, Techno Plaza near Toyota Showroom, Meerut Road, Ghaziabad and signature of the persons who had received the goods was Q-31 at point A on gate pass Ex PW19/A and also identified stamp of the chungi at point B on Ex PW19/A. Suggestion given to him by defense would give an insight of the intent of cross examination of this witness. He was given suggestion that he had not delivered the goods at Meerut Road, Ghaziabad or that the goods were delivered to Escort Ltd., Ghaziabad or that Escort Ltd. had put their seal on the gate pass Ex PW19/A in token of receipt of goods. So again it is seen that attempt of the defense is to Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 75 of 197 prove that printed Annual Reports were delivered to Escort Ltd. at C- 111-112, Bulandsahar Road and not at 1035, Techno Plaza but delivery of goods by this driver was not disputed.
167. An argument was raised on behalf of defense that all the challans/gate pass on record shows that same were issued to the Escort Ltd., C-111- 112, Bulandsahar Road, Industrial Area, Ghaziabad and therefore it cannot be said that Annual Reports were delivered to M/s Abhishek Enterprises. It must be said that it is a futile argument firstly because during cross examination of PW17 neither printing of Annual Report were disputed nor was its delivery at 1035, Techno Plaza, Ghaziabad disputed nor was signature of accused Gajender Kumar Sharma on challans/gate passes disputed. Once accused Gajender Kumar Sharma was the recipient of the printed Annual Report then it was for him to prove where and to whom same were delivered. Secondly, it has already been noted above that during the cross examination of PW22 Vinod Dixit defense set up a case that it had franked the Annual Reports from premise located at Techno Plaza at Ghaziabad and both place and Franking Machine were arranged by the Escort Ltd. How franking was possible by M/s Abhishek Enterprises if Annual Reports were not delivered to it? Or how franking became possible if each Annual Report with envelope did not come into hand of person franking on behalf of M/s Abhishek Enterprises? One more thing has to be kept in mind that amongst printer, Escort and M/s Abhishek Enterprises property in Annual Reports belong to Escort Ltd. hence mentioning its name and address on challans/gate pass will not deflect the issue. Delivery of Annual Reports to M/s Abhishek Enterprises was more like a bailer.
168. Besides above, no such case was set up by the defense when witness Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 76 of 197 PW23 Aman Sharma, an employee of Escort deputed to oversee mailing, deposed in examination in chief that 03.09.2001 he had visited Ghaziabad near the Toyota Show Room for mailing the Annual Reports which were being mailed by M/s Abhishek Enterprises. He in his cross examination had deposed that the printed balance sheet were being transported directly from the place of printer to the place of M/s Abhishek Enterprises at Ghaziabad for the posting of the material through franking machine. He further clarified that since 1998 Abhishek Enterprises was operating from Munirka but in respect of the material in question of this case pertaining to the year 2001, Abhishek Enterprises were doing their job of "posting" through franking machine from Ghaziabad. He further deposed in cross examination that the job of postings through franking machine was operated for his company by Abhishek Enterprises from Ghaziabad from 30.08.2001 to 04.09.2001. He further deposed that no signage/board of Abhishek Enterprises was displayed outside/at the work place of the said company at Ghaziabad. He was not given suggestion that he had not visited Ghaziabad near Toyota Show Room to oversee the work of mailing by M/s Abhishek Enterprises or that the premise he visited was C-111-112, Bulandsahar Road, Ghaziabad or that C-111-112 was near the Toyota Show Room, Ghaziabad.
169. Similarly, PW27 Sh. Sunil Pathak an employee of the Escort deposed that he was deputed to supervise the work of franking of mail near Meerut which was known as Techno Plaza near Toyota Show Room. He had deposed that he had delivered 12 demand drafts of different denomination to accused Gajender Kumar Sharma. In his cross examination by Ld. PP he clarified that the place he visited was in Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 77 of 197 Ghaziabad and not at Meerut. In his cross examination by the defense on the aspect of his visit, he deposed that printed Annual Reports were never received in his presence at Techno Plaza. He on being shown Ex PW19/A(D-7) admitted that gate pass/challan issued by Sh. Vinod Dixit was for delivery of Annual Report at the address "Escort Ltd. C-111- 112, Bulandsahar Road, Indl. Area, Ghaziabad". He further deposed that he was sent to supervise the work of franking at Techno Plaza. He further deposed that the place where he had visited at Meerut Road, there was no transport vehicle of Escort India Ltd. and when he had reached at 4.00 PM on 01.09.2001, there was no staff of Escort India Ltd. at Techno Plaza where the franking work was being carried out. He denied the suggestion that he had not handed over any demand draft to accused Gajender Kumar Sharma and that his colleague was present when he had gone to the place of work of franking. To this witness no case was set up by the defense that the place he visited was C-111-112, Bulandsahar Road and not Techno Plaza or that no job of franking was being done at Techno Plaza, Ghaziabad.
170. PW28 Sh. Krishan Kumar Shahi was another person deputed by Escort for supervising the work of mailing by M/s Abhishek Enterprises. He deposed in his examination-in-chief that on 31.08.2001 he was deputed by Sh. Vinod Dixit, DGM to supervise the work of franking of mail at Ghaziabad and he reached there at about 10 A.M. He deposed he handed over four demand drafts of different denomination to accused Gajender Kumar Sharma. He further deposed that he had visited 3-4 times the Techno Plaza near Toyota Show Room, Ghaziabad where Annual Reports of Escort Ltd. were being franked. He had further deposed that he had visited Techno Plaza for this work on 31.08.2001, Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 78 of 197 01.09.2001, 03.09.2001 and 04.09.2001. He identified the accused Gajender Kumar Sharma in the court.
171. In his cross amongst other thing he deposed that the said four demand drafts were delivered by him to Gajender Kumar Sharma. He further deposed that about 15 to 18 thousands envelopes were franked in his presence during those four days when he went to Ghaziabad for supervision. He volunteered that he did not remain at the work place of Abhishek Enterprises at Ghaziabad for the whole day in those four days. He further deposed that all the envelopes were not being franked in his presence or in the presence of staff from his company and they visited the place of Abhishek Enterprises at Ghaziabad from 10 Am to 5 PM. He further deposed that during those four days when he supervised the work at Ghaziabad, 3 to 4 times a tempo carrying printed balance sheet reached at the work place of Abhishek Enterprises. No suggestion was given that he did not supervise the work or that no balance sheet were delivered in his presence at the work place of M/s Abhishek Enterprises or the place was not Techno Plaza but C-111-112, Bulandsahar Road, Ghaziabad. Many facts come out when wrong question is put to a witness by defense. Like in the present case the witness did not depose in his examination-in-chief that any Annual Report was delivered in his presence to M/s Abhishek Enterprises but this was asked by defense and witnesses deposed about this fact about which he might not have said due to loss of memory or otherwise.
172. PW43 Sh. Shailender Patra was another employee who was deputed by Escort to supervise the work of mailing Annual Reports. He in his examination-in-chief deposed that he was deputed to shop No. 1035, Techno Plaza, near Toyota Showroom, Ghaziabad to oversee the work of Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 79 of 197 franking of letters/annual reports of the company and the work was being done by Gajender Kumar Sharma of M/s Abhishek Enterprises on behalf of Escort Limited. In cross examination he admitted that he visited at Ghaziabad only on 01.09.2001 to supervise the work of franking and on other days the other staff members had visited. He further admitted that on 01.09.2001 about 15,000 envelopes were franked. He further admitted that franking was not done in his presence and when he reached at Ghaziabad the envelopes were already franked but the same were packed in bags and were sent in the red color van of the post office in his presence. He deposed that he had supervised the work of franking for the first time on 01.09.2001 and reached Techno Plaza at about 10 AM. Defense did not dispute that job of franking was done at Techno Plaza nor did it assert that witness had visited C-111-112 and not Techno Plaza.
173. PW21 Sh. Vivek Tyagi claimed to be having a showroom at 1035, Techno Plaza, Meerut Road, Ghaziabad. He deposed that he was having one godown in 1035, Techno Plaza and in August 2001 it was lying vacant and at the relevant time said hall was given by him on rent to Sh. Gajender Kumar Singh and Sh. Dinesh Sharma at the rate of Rs. 2,000/- plus Rs. 100/- for electricity charges. He further deposed that said hall remained in their possession till 10-15 days. He further deposed that he had observed that during those 10-15 days some packed material used to be dispatched in vehicle TATA 407. He further deposed that later he was asked to identify Gajender Kumar Sharma at CBI office and he identified him and correctly identified him in court.
174. In his cross examination it was not disputed by defense that he was having one hall/godown at 1035, Techno Plaza, Ghaziabad or that he Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 80 of 197 had not let out the same. Case of the defense put to him was that premise was let out to Vinod Dixit on behalf of Escorts Ltd. and not to Gajender Kumar Sharma and Dinesh Sharma. Though witness had deposed that as far as he had remembered said godown was given on rent on 5/08/2001 for 10-15 days and was vacated within the said period but he did not remember if it was vacated in the month of August 2001, but this aspect was not capitalized by defense by restraining itself from asking if same was vacated in August 2001 and by giving suggestion that same was lying vacant between 30.08.2001 to 04.09.2001 which suggestions witness obviously denied. Instead, it call upon itself responsibility of proving that said godown was taken on rent by Vinod Dixit for and on behalf of Escort Ltd. or that said godown was lying vacant between 30.08.2001 to 04.09.2001 which responsibilities defense did not discharge by examining any witness in defense.
175. Thus, testimonies of PW13 Sh. Mangal Chand, PW17 Kohli, PW19 Sh.
Dhani Lal, PW21 Sh. Vivek Tyagi, PW23 Aman Sharma, PW27 Sh. Sunil Pathak, PW28 Sh. Krishna Kumar Shahi and PW43 Sh. Shailender Patre categorically corroborate the testimony of PW22 Vinod Dixit and therefore, it is held that prosecution has successfully proved beyond reasonable doubt that job of mailing Annual Report of Escort Ltd. for the year 2000-01 to its shareholders by franking was awarded to M/s Abhishek Enterprises and that printed Annual Reports were delivered to M/s Abhishek Enterprises. The argument of defense that no documentary evidence was produced to show awarding of contract of mailing Annual Reports to M/s Abhishek Enterprises and hence prosecution has miserably failed to prove the same, is not sustainable in view of the oral evidence of witnesses above discussed and the stand Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 81 of 197 taken by the defense during the cross examination of above witnesses as noted above.
Whether M/s Abhishek Enterprises franked Annual Reports of Escort Ltd. for the year 2000-01 and what was the number of Annual Reports that were franked?
176. It has already been noted above that accused Dinesh Sharma and Gajender Kumar Sharma both in their respective statements under Section 313 CrPC denied that M/s Abhishek Enterprises was given the job of mailing Annual Reports of Escort Ltd. for the year 2000-01 to its shareholders. Similarly, when it was put to them that evidences have come on record that Annual Reports were franked by M/s Abhishek Enterprises they denied it and they also denied the confirmation certificate Ex PW22/A-7 (D-12). Nowhere in their statements under Section 313 CrPC did accused Dinesh Sharma and Gajender Kumar Sharma state that M/s Abhishek Enterprises had only limited role restricted to filing reports in envelope, pasting it, pasting address slip on envelopes and taking impression of franking by Franking Machine (sold by dealer/manufacturer in Bombay) arranged by Escort Ltd. However, during cross examination of prosecution witnesses particularly PW22 Vinod Dixit, defense set up a different case as has already been noted above. True in criminal trial also it is permissible to take multiple defenses/stands but cardinal principle is that they should not mutually be destructive. In the present case when star witness PW22 Vinod Dixit deposed that job of mailing was awarded to M/s Abhishek Enterprises, defense during his cross examination set up that though job of mailing was awarded to the firm in question but Franking Machine was arranged by Escort Ltd. and their role remain limited to operation of Franking Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 82 of 197 Machine for the purpose of franking (i.e. obtaining impression of town and value die on envelopes) apart from other activities like pasting of name/address slips etc. By the time their statement was recorded under Section 313 CrPC they went into complete denial mode as noted above. They cannot maintain both stands i.e. contract of limited activities to no contract.
177. Once during cross examination of PW22, accused persons particularly Dinesh Sharma and Gajender Kumar Sharma took up the stand that franking was done with Franking Machine arranged by Escort then it was for the defense to extract as much oral testimonies from prosecution witnesses as could have led this court to conclude that franking machine was or may have been arranged by Escort Ltd and/or defense should have examined defense witnesses to prove that franking machine was arranged by Escort Ltd. Defense did examine three witness but not to prove that Franking Machine was arranged by Escort Ltd.
178. From the testimony of PW22 Sh. Vinod Dixit in examination-in-chief and in cross examination particularly conducted on 16.09.2013 as has been quoted above and from the contents of Ex PW22/A-7 prosecution has successfully proved beyond reasonable doubt that Annual Reports of Escort Ltd. for the year 2000-01 were franked and dispatched by M/s Abhishek Enterprises and franking was done by a Franking Machine (leaving impression interalia PB-4235) other than the Franking Machine (bearing Meter Unit No. PB-5235) licensed to M/s Abhishek Enterprises. From the contents of confirmation certificate dt. 07.09.2001 Ex PW22/A-7 (D-12) which was not at all disputed in any manner by defense, prosecution has successfully proved beyond reasonable doubt that 88,171 copies of Annual Reports were dispatched by post after Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 83 of 197 franking by M/s Abhishek Enterprises.
179. Even otherwise, eye witnesses PW23 Aman Sharma, PW27 Sunil Pathak, PW28 Krishan Kumar Sahi and PW43 Shailender Patre have testified to the effect that franking was being done at the office of M/s Abhishek Enterprises at Ghaziabad. After seeing the returned undelivered envelopes Ex PW22/A-20 (463 in numbers) PW23 Aman Sharma categorically deposed that they were sent by mail after franking was done at the office of accused Gajender Kumar Sharma. In his cross examination he had deposed that M/s Abhishek Enterprises was operating on behalf of Escort Ltd. in respect of posting correspondence by the use of franking machine. He had further deposed that the license of the franking machine used by Abhishek Enterprises was not in favour of his company but might be in favour of M/s Abhishek Enterprises. He had further clarified that since 1998 M/s Abhishek Enterprises was operating from Munirka but in respect of the material in question of this case pertaining to the year 2001, Abhishek Enterprises were doing their job of "posting" through franking from Ghaziabad.
180. Testimony of PW23 about having visited the premise at Ghaziabad and having seen franking of mails by M/s Abhishek Enterprises was not disputed in any manner in his cross examination. Not even by giving a contrary suggestion to him.
181. Similarly, PW27 Sunil Pathak also deposed that he was deputed by Sh.
Vinod Dixit to supervise the work of franking of mail near Meerut which was known as Techno Plaza near Toyota Show Room. He further deposed that beside accused Gajender Kumar Sharma there were other laborers who were deputed for franking and on that day accused Gajender Kumar Sharma had franked about 14000-15000 envelopes. He Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 84 of 197 further deposed that slips of name and address were pasted on the said envelopes and franking was done thereafter.
182. Even testimony of PW27 Sunil Pathak about having visited the premise at Ghaziabad and having seen franking of mails by M/s Abhishek Enterprises was not disputed in any manner in his cross examination. Not even by giving a contrary suggestion to him. On the contrary suggestion was given that some of his colleagues was present when he had gone to the place of work of franking. PW27 Sunil Pathak in cross examination even went on to depose that franking machine was of the make Kilburn.
183. Corroborating testimonies of PW22, PW23 and PW27 was the testimony of PW28 Krishan Kumar Sahi. He deposed that on 31.08.2001 he was deputed by Sh. Vinod Dixit, DGM to supervise the work of franking of mail at Ghaziabad and he reached there at about 10 AM. He further deposed that he had visited 3-4 times the Techno Plaza near Toyota Show Room, Ghaziabad where annual reports of Escort Ltd. were being franked and on the said day about 18,000/- reports were franked. He had further deposed that after franking, the mail/reports were put in the bag and they were sent to some other place through the postal van. He further deposed that he had seen the Franking Machine but he did not remember its color but was of M/s Kilburn Co. and the franking impression was of Rs.16/- on all the envelopes. In cross examination he had deposed that about 15 to 18 thousands envelopes were franked in his presence during those four days when he had gone to Ghaziabad for supervision. He volunteered that he did not remain at workplace of M/s Abhishek Enterprises at Ghaziabad for the whole day in those four days. He further deposed that all the envelopes were not Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 85 of 197 being franked in his presence or in the presence of staff of Escort and they visited the place of Abhishek Enterprises at Ghaziabad only from 10 AM to 5 PM. He had deposed that work of franking of envelopes were being carried out even after 5 PM and in respect of the work carried out in his absence he used take report on the next day.
184. Testimony of PW28 Krishan Kumar Sahi was also not disputed so far as his having visited the site and having seen the work of franking being carried on by M/s Abhishek Enterprises are concerned. Not a single contrary suggestion was given to him.
185. Testimony of PW43 Shailender Patre who had also visited the site of franking and had seen franking of mails by Gajender Kumar Sharma of M/s Abhishek Enterprises, also remained unchallenged. Rather, in cross examination he was made to admit that he visited Ghaziabad only on 01.09.2001 to supervise the work of franking and on other days the other staff members had visited. He was further made to admit that on 01.09.2001 about 15000 envelopes were franked. He was also made to admit that franking was not done in his presence and when he reached at Ghaziabad, the envelopes were already franked but the same were packed in bags and were sent to post office in his presence. No suggestion was given that franking was not done by M/s Abhishek Enterprises.
186. Thus, the testimonies of PW22, PW23, PW27, PW28, and PW43 independently go to prove that franking on the envelopes were done by M/s Abhishek Enterprises through its men. Further PW22, PW23, PW27, PW28 and PW43 corroborated each other on the aspect of franking by M/s Abhishek Enterprises. Hence, there is no hesitation in holding that prosecution has proved beyond reasonable doubt that Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 86 of 197 franking of Annual Reports of Escort Ltd. for the year 2000-01 was done by M/s Abhishek Enterprises and the number of franked mail was 88,171 as is evident from undisputed confirmation certificate dt. 07.09.2001 Ex. PW22/A-7 (D-12) issued by M/s Abhishek Enterprises.
Whether 16 Demands Drafts of different denomination was got prepared by Escort Ltd. payable in favour of Senior Post Master Ghaziabad? Whether the 16 demands drafts were handed over to accused Gajender Kumar Sharma of M/s Abhishek Enterprises?
187. It is the allegation of the prosecution that 16 demand drafts of different denomination amounting to Rs. 14,59,566/- in favour of Sr. Post Master, Ghaziabad were prepared got by Escort Ltd. and were given to accused Gajender Kumar Sharma of M/s Abhishek Enterprises.
188. PW15 Smt. Sadhna Sharma was Desk Clerk in State Bank of Saurashtra, Connaught Place, C-37 Opposite Odean Cinema, New Delhi and was dealing issuance of demand drats (DDs), Mail Transfer (MT) and Telegraphic Transfer (TT). She deposed that her limit to sign DDs was upto Rs. 50,000/- and above Rs. 50,000/- besides her the accountant also used to sign such DDs, MTs or TTs. She identified her signature on receipt Memo dt. 13.05.2002 Ex PW15/A (D-70) vide which she had handed over request slip dt. 29.08.20001 and 01.09.2001 from bank record. She deposed that her bank used to receive request slips from the Standard Chartered Bank and from Grindlays Bank along with consolidated cheque. She further said that request slips were received by head clerk and thereafter as per the request her bank used to prepare various demand drafts. She further deposed that Sh. Kapil, Head Clerk had signed the request slip at point A on each page. She went on to depose that the clerk who used to prepare the demand drafts would put Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 87 of 197 the demand drafts numbers and entry numbers in the request slips itself. The request slips bearing signature of head clerk Sh. Kapil at point A on each page are exhibited as Ex PW15/B and Ex PW15/C. On seeing demand drafts bearing numbers 505546 to 505549 all dated 29.08.2001 and demand drafts bearing No. 505655 to 505566 all dated 01.09.2001, she deposed that all demand drafts were issued by her branch. She identified her signature on each demand drafts at point A. All 16 demand drafts were exhibited as PW4/A to Ex PW4/G and Ex PW15/D1 to Ex PW15/D9. She further deposed that 16 demand drafts were issued in favour of Senior Post Master, Ghaziabad.
189. In her cross examination she had deposed that request slip did not have the seal of Standard Chartered Bank but explained that her head clerk Mr. Kapil had mentioned in his hand "Standard" and had initialed it. She further deposed that she could not tell how many drafts were prepared using the amount of Rs 12 lacs and 18 lacs respectively of two pay orders (sent by Standard Chartered Bank). She deposed that for issuance of demand drafts her bank used to receive only the pay orders and the request slips. She was unable to tell the purpose for which the four demand drafts of different amount were got prepared on one day payable to one party. She admitted that the preparation of demand drafts of different amounts in favour of one addressee was according to the request of the requesting bank. No suggestions were given that demand drafts were not prepared or were not prepared at the request of Standard Chartered Bank. Thus, it can be seen that preparation of 16 demand drafts Ex PW4/A to Ex PW4/G and Ex PW15/D1 to Ex PW15/D9 of different amounts were not disputed.
190. PW16 Sh. B. S. Yadav who was posted as Dy. Manager in State Bank of Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 88 of 197 Saurashtra, Connaught Place, New Delhi deposed that DDs Ex PW4/B, Ex PW4/C and Ex PW4/D bore his signature at point B. In cross examination he deposed that he had seen the request slip of requesting bank at the time of signing the aforesaid demand drafts. Issuance or signing of demand drafts by him was not disputed or questioned. PW18 Sh. R. K. Srivastava who was working as Dy. Manager in State Bank of Saurashtra corroborated the testimony of PW15 by deposing that as per rules a draft which was less than Rs. 50,000/- was required to be signed by one officer whereas draft for Rs. 50,000/- and above was required to be signed by two officers of the same branch. Nothing contrary came out of his cross examination.
191. Perusal of the Demand Drafts Ex PW4/A to Ex PW4/G and Ex PW15/D1 to Ex PW15/D9 would show they were issued in favour of Senior Post Master, Ghaziabad and were drawn upon State Bank of Saurashtra, Ghaziabad. Further perusal of request slip Ex PW15/B and PW15/C (which has the seal of the bank also ) would show that ultimate clients/customer of these DDs in question was Escort Ltd.
192. PW27 Sh. Sunil Pathak who was deputed by Escort to supervise the work of mailing at Ghaziabad by M/s Abhishek Enterprises, after seeing 12 demands drafts Ex PW15 /D1 to Ex PW15/D9 and Ex PW4/E to PW4/G, deposed that they were delivered by him to accused Gajender Kumar Sharma. In his cross examination he deposed that he was instructed to handover the demands drafts to Gajender Kumar Sharma after collecting the same from the bank and he had collected the demands drafts on 01.09.2001 at about 1.30 PM to 2.00 PM and had gone to Techno Plaza. He further deposed that he did not take any receipt in respect of handing over of demand drafts from accused Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 89 of 197 Gajender Kumar Sharma. He further deposed that Vinod Dixit had instructed him to obtain receipt from accused Gajender about the delivery of demand drafts and he had demanded receipt but accused Gajender told him that he would obtain receipt from post office after deposit of DDs and would then send the same to office. Witness further deposed that he did not verify subsequently whether or not accused Gajender Kumar Sharma submitted any receipt about DD. He denied the suggestion that he had not handed over any DD to accused Gajender Kumar Sharma or that he had handed over all the demand drafts mentioned in his statement to Sh. Vinod Dixit. Suggestion given to PW27 would mean that defense does not dispute that demand drafts were prepared and were prepared at the instance of Escort Ltd. otherwise why defense would set up a case that witness had delivered demand drafts to Vinod Dixit after taking the same from bank. Thus, preparation of demand drafts was not disputed nor was it disputed that witness had collected it from bank to deliver - to accused Gajender Kumar Sharma as per prosecution or to Vinod Dixit as per defense.
193. PW28 Sh. Krishan Kumar Sahi in his examination had deposed that DDs Ex PW4/A to Ex PW4/D were collected by him from office and were handed over by him to accused Gajender Kumar Sharma. In cross examination he deposed that four demand drafts mentioned by him were got from the bank by another employee and said four DDs were delivered by him to accused No.2 Gajender Kumar Sharma at Ghaziabad but he did not remember the exact date. No suggestion was given that four DDs were not delivered to accused Gajender Kumar Sharma. No suggestion was given that same were not collected from his office. So the delivery of four DDs by this witness to accused Gajender Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 90 of 197 Kumar Sharma was not disputed. It has already been found herein before that defense did not dispute his visit to place of work at Ghaziabad to supervise the work of franking by M/s Abhishek Enterprises.
194. It was noted above that during cross examination of PW27 Sunil Pathak defense set up a case that 12 DDs were delivered to Vinod Dixit (PW22) and not to accused Gajender Kumar Sharma but from the record it is seen that out of the 12 DDs handed over by witness Sunil Pathak, two DDs Ex PW15/D8 and Ex PW15/D9 each for Rs. 1,00,000/- were encashed/credited into the Post Office Saving Bank Joint Account bearing No. 747913 which accused Gajender Kumar Sharma admitted (in his statement under Section 313 CrPC ) to have opened in the Mukundnagar Post Office by him with his wife though his wife Pushpa Sharma deposed to have not signed the Account Opening Form for the said account. Accused Gajender Kumar Sharma in his statement under Section 313 CrPC did not dispute deposit of two demands drafts in his account. During cross examination of PW27 Sunil Pathak, defense did not set up case that only 2 demand drafts ( bearing No. 505663 & 505664) were delivered to accused Gajender Kumar Sharma and not all the 12 DDs, hence it leads to undoubted conclusion that all the 12 demand drafts were handed over to accused Gajender Kumar Sharma by the witness PW27 because Gajender Kumar Sharma did not explain how and for what purpose he got two demand drafts. The defense story that Gajender Kumar Sharma did not receive the above said 12 demands drafts cannot be believed in the absence of any explanation/proof that he received only 2 demand drafts.
195. Thus, from the collective testimonies of PW15, PW16, PW18, PW27 Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 91 of 197 and Ex PW28 coupled with non disputing status of the A/c bearing No. 747913 with Mukundnagar Post Office, it all go to prove beyond reasonable doubt that 16 demands drafts Ex PW4/A to Ex PW4/G and Ex PW15/D1 to Ex PW15/D9 were prepared at the request of Escort Ltd. through banking channels and all the 16 demands drafts were handed over to accused Gajender Kumar Sharma.
Whether accused persons opened Post Office Saving Account as alleged by the prosecution?
196. It is the case of the prosecution that accused Gajender Kumar Sharma along with his wife opened a joint Saving A/c bearing 747913 with Mukundnagar Post Office. It has been further alleged that accused Yogender Kumar Sharma and accused Mahender Kumar opened a joint Saving account bearing No. 300118 whereas accused Rajiv Kumar Srivastava and accused Umesh Kumar Singh opened joint account bearing No. 300122 in the Kausambi Post office.
197. Accused Gajender Kumar Sharma in his statement under Section 313 CrPC admitted having opened Saving A/c No. 747913 jointly with his wife with Mukundnagar Post Office and also deposits of two demands drafts into the account as noted above by saying "same is matter of record". Accused Yogender Kumar Sharma, Mahender Kumar, Rajiv Kumar Srivastava and Umesh Kumar Singh categorically denied having opened any saving account with Kaushambi Post Office, Ghaziabad.
198. PW4 Sh. Kedar Singh had worked in Ghaziabad Post Office in various capacity. He deposed that saving A/c No. 300118 was running in the name of Y. K. Sharma and Mahender Kumar and DD No. 505549 for Rs. 20,000/-, DD No. 505548 for Rs. 1 Lac, DD No. 505547 for Rs 1 Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 92 of 197 Lac, DD No. 505546 for Rs. 1 Lac, DD No. 505656 for Rs. 63,657, DD No. 505657 for Rs 1,16,000/- and DD No. 505666 for Rs. 60,000/- were deposited in account No. 300118. He identified the signature of accused Zile Sigh Kasana who was working as Sub-Post Master in the Kausambi Post Office. He identified the signature of Zile Singh Kasana at point A on demand drafts Ex PW4/A to Ex PW4/G.
199. He further deposed that Saving A/c No. 300122 was running in the name of Rajiv Kumar Srivastava and Umesh Kumar Singh and DD No. 505665 for Rs. 1 lac was allowed to be deposited in this account by Sh. Zile Singh Kasana whose signature he identified at point A on Ex PW4/H. He identified accused Zile Singh Kasana in the court.
200. In cross examination conducted on behalf of accused Y. K. Sharma (A3), Rajiv Kumar Srivastava (A4), Umesh Kumar Singh (A5) and Mahender Kumar (A9), PW4 admitted that he was not present when the above accounts indicated in his statement were opened or when transaction were made in the said account. He further admitted that accused Zile Singh Kasana put his signature on the demand drafts in token of receipt of them and then he forwarded said demand drafts to Head Office for processing and approval. He further deposed that signature of Zile Singh Kasana on the demand drafts was only to confirm that the signature of customer tendering the demand drafts tallied with specimen signature available in the respective account. This witness did not help prosecution in connecting the account with accused persons as in his presence neither the account was opened nor any of the account holder signed the same in his presence or operated the same. Nevertheless, by way of cross examination of this witness, defense confirmed that DDs had signature of accused Zile Singh Kasana and Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 93 of 197 they were sent to Head Post office for approval and Zile Singh had put his signature after confirming/tallying of the signatures of account holders.
201. In cross examination conducted on behalf of accused Inder Pal Singh (A8), O.P. Sharma (A10) and B.D. Goswami (A11), PW4 was made to admit that DDs received from Sub-Post Master Kaushambi/Mukund Nagar were in order along with the checklist and were thus cleared by the Head Office.
202. It can be seen that in the cross examination of PW4 Kedar Singh, defense neither questioned his capacity to depose nor his personal knowledge to depose nor did dispute running of account No. 300118 in the name Y. K. Sharma and Mahender and running of account No. 300122 in the name of Rajiv Kumar Srivastava and Umesh Kumar Singh, nor did they question deposits of demands drafts in the respective accounts. Rather, they set up a case that all theses demand drafts were signed by accused Zile Singh Kasana as token of receipt of demand drafts for onward processing by Head Office by confirming the tallying of signature of account holders. Testimony of PW4 Kedar Singh is sufficient to hold that account No. 300118 was run by Y. K. Sharma and Mahender Kumar and account No. 300122 was run by Rajiv Kumar Srivastava and Umesh Kumar Singh but insufficient to hold that they were being run by concerned accused persons.
203. PW7 Sh. Ramesh Chand Sharma was posted as Sub-Post Master at Kausambi Post Office since 7.12.2001. He upon seeing document D-22 Ex PW7/1 identified the same as Account Opening Form. He deposed that Ex PW7/1 was in the name of Rajiv Kumar Srivastava and Umesh Kumar Singh. He identified the signature of accused Zile Singh in red Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 94 of 197 marked "Q" on the reverse of Ex PW7/1. He had taken over charge as Sub Post Master Kausambi from accused Zile Singh Kasana. He also identified the accused Zile Singh Kasana in the court. He further deposed that along with Account Opening Form is the Ledger card Ex PW7/2 showing closing balance at Rs. 1,00,500/- in the account No. 301122 as 5.12.2001. He further stated that the balance of Rs. 1,00,500/- was mentioned at point 'X' on Ex PW7/2 for the date 19.09.2001. He further deposed that transaction had taken place in the account on 21.09.2002 and 22.09.2002 shown at point 'Y' and 'Z' after 7.12.2001 after he joined as Sub Post Master.
204. On seeing D-30 Ex PW7/3 he deposed that it was an application (Account Opening Form) for opening account qua A/c No 300118 in the name of Y. K. Sharma and Mahender Kumar. He identified the signature of accused Zile Singh in red marked "Q60" on the reverse of Ex PW7/3. He identified the annexed Ledger Card Ex PW7/4 qua A/c No. 300118 annexed with account opening Form Ex PW7/3.
205. In cross examination conducted on behalf of accused Dinesh Sharma, Gajender Kumar, Yogender Kr. Sharma, Mahender Kumar, Rajiv Kr. Srivastava, Umesh Kumar Singh, I. S. Yadav, O. P. Sharma and B. D. Goswami, he deposed that the two A/c Opening Forms had been taken from the Head Post Office, Ghaziabad and the Ledger had gone there from the Sub-Post Office Kausambi to the Head Post Office Ghaziabad and from Head Post Office Ghaziabad the same had gone to the CBI. He further deposed that he himself had not taken the Ledger Card from the Sub-Post Office Kausambi to the Head Post Office Ghaziabad, however, he did not recall whether CBI personnel or whether Public Relation Inspector had taken the original Ledger Card to the Head Post Office.
Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 95 of 197 He further deposed that he did not recall the name of Public Relation Inspector. He showed his ignorance as to whether the original Ledger Card was taken in its possession by the CBI. He further deposed that all that he knew was that the original thereof was not on the records of the Sub-Post Office Kausambi and only photocopy of the same was posted there. He was made to admit that on the day when the Ledger Card had gone to the Head Post Office he was In-charge of the Sub-Post Office Kausambi and Ledger Card was the property of the Sub-Post Office, Kausambi. Thus, defense while making PW7 admits has in fact admitted itself that documents had gone to Head Post Office and PW7 was the Sub-Post Master of Kausambi.
206. In his further cross examination he deposed that ledger card of any account was prepared in the Head Office and what remained in the Sub- Post Office was the ledger containing details of each account. He did not know whether there was any Seizure Memo or any handing over memo prepared at the time when the ledger sheets had been taken by CBI. He volunteered that credit and withdrawal connected with Ex PW7/2 and Ex PW7/4 were made before he was posted at the Kausambi Post Office. He further volunteered that if he had permitted any withdrawals same would have been after verification of signatures and by taking evidence. He admitted that there was requirement of evidence (before permitting withdrawals) only when there was a difference in the signature on the withdrawal form from the specimen signatures with the Post Office. He admitted that the deposits can be made by any person by filing pay-in-slip. He deposed that he could not say who had deposited or withdrawn any money from the accounts qua Ex PW7/2 and Ex PW7/4. On seeing Ex PW7/1 and Ex PW7/3 he further deposed that Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 96 of 197 introducer of the said account opening forms were from Faridabad and the accounts were opened at Kausambi Post Office and therefore there was some irregularity in opening these accounts.
207. Testimony of PW7 also leads to conclude that two accounts bearing No. 300118 and 300122 were opened and being run in the Kausambi Sub Post Office. It leads to conclude that 300118 were jointly in the name of accused Yogender Kumar Sharma and Mahender Kumar and account No. 300122 were in the joint name of Rajiv Kumar Srivastava and Umesh Kumar Singh. However, even his testimony is not sufficient to connect the accounts with respective accused persons.
208. PW8 Sh. Ved Prakash had handed over documents to CBI vide receipt memo dt. 22/03/2013 Ex PW8/7 (D-21) bearing his signature at point A. He deposed to have delivered documents mentioned therein. He, however, could not identify signature of any officials on the said documents i.e. D-22 Account Opening From ExPW7/1, D-23, D-24, D- 25, D-26 all Pay-in-slip of A/c No. 300122, D-27 to D-29 all withdrawal slip of A/c No. 300122, D-30 Account Opening Form of A/c No. 300118, D31 to D-39 all Pay-in-slip of A/c No. 300118, D-40 to D-47 all withdrawal slip of A/c No. 300118, D-48 Account Opening Form of A/c No. 747913, D-49 to D-51 all Pay-in-slip of A/c No. 747913 and D- 52 to D-54 all withdrawal slip of A/c No. 747913. He is not much help so far as prosecution is concerned; nevertheless in cross examination the fact of delivery of aforesaid documents by him from the records of Post office to CBI was not disputed.
209. PW10 Sh. Hari Singh was working as ED (Stamp Vendor) in Mukundnagar Post Office, Ghaziabad. He deposed that on 14.09.2001 when he reached the post office for his duty he saw Gajender Kumar Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 97 of 197 Sharma sitting with Inder Pal Singh (A-8), the then Post Master who had asked him to sign the Account Opening Form which was already filled in and he signed the same at point A on Account Opening Form Ex PW6/DB. He further deposed that account No. 747913 was in the joint name of Gajender Kumar Sharma and Smt. Pushpa Sharma and he had signed the same as introducer. He identified accused Gajender Kumar Sharma and Inder Pal Singh in court. He deposed that he could not identify the signature of Gajender Kumar Sharma on Ex PW6/DB as accused had not signed in his presence.
210. He further deposed that Account Opening Form accompanied by Statement of account Ex PW10/1 was in the hand writing of accused Inder Pal Singh. He further identified the signatures of accused Inder Pal Singh on all documents as he had seen him signing and writing. He also identified the signature of accused Inder Pal Singh on the reverse of DDs bearing No. 505563 and 505564 both dated 01.09.2001 for Rs. 1,00,000/- each.
211. In cross examination he deposed that he had introduced the correct persons i.e. Gajender Kumar Sharma and his wife Pushpa Sharma for opening the account. He did not know if any fraud had been committed in the said account. He further deposed that he used to see accused Gajender Kumar Sharma visiting the said post office for 2 year prior to the date when he introduced the said account. He denied the suggestion that accused Gajender Kumar Sharma visited the post office first time on the day of opening the account. He volunteered that accused Gajender Kumar Sharma used to visit in connection with the post daks and he had also become friendly with him. The suggestion given to witness show that defense did not dispute visiting of accused Gajender Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 98 of 197 Kumar Sharma to the post office for opening of the account and about opening of the account. Even otherwise it has been noted before that accused Gajender Kumar Sharma neither disputes opening of the saving account No. 747913 nor deposits of two demands drafts in it. Defense also did not dispute that Account Opening Form and statement of account/ledger card of account No. 747913 has the writing and signing of accused Inder Pal Singh.
212. PW6 Giriraj Singh Tomar was posted at the Head Post Office, GPO at Ghaziabad on Ledger V on 31.05.2002. He deposed that as a ledger clerk he used to do ledger postings of the transactions (withdrawals and deposits) lists received from the 15-16 Sub-Post Offices. He deposed that the Mukund Nagar Post Office's postings in the Ledger had been done by him however ledger posting of Kausambi Post office had not been done by him. He identified the document D-48 as the Account Opening Form SB-3 which was exhibited for identification purpose as Ex PW6/DB. Ex PW6/DB is in respect of A/c No. 747913. He identified the signature of accused Inder Pal Singh at point Z on the reverse of Ex PW6/DB. He further deposed that he had recognized the signature of Inder Pal Singh as he had seen the signatures on the postings transaction lists and vouchers during the discharge of the official duties. He identified the accused Inder Pal Singh in the court and his signature on demand drafts 505563 Ex PW6/DC and DD No. 505564 Ex PW6/DD.
213. In cross examination he deposed that he had seen the document Ex PW6/DB i.e. Account Opening Form of account No. 747913 which document was furnished by him to CBI and as such he had seen it earlier as well. He further admitted that document Ex PW6/DB was not bearing the seal of the post office otherwise in his opinion the document was Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 99 of 197 proper. He had not informed CBI that the said document was incomplete for the reason of absence of seal of the post office. He admitted that he was only dealing with Mukundnagar Post Office. It has already been noted above that accused Gajender Kumar Sharma in his statement under Section 313 CrPC has admitted of having opened joint account No. 747913 with his wife Pushpa Sharma in the Mukundnagar post office and also did not dispute deposits of demands drafts Ex PW6/DC (also exhibited as Ex PW15/D8 in the testimony of PW15 ) and Ex PW6/DD (also exhibited as Ex PW15/D9). In cross examination of PW6 it is seen that no contrary suggestion has been given to him. It has not been disputed that account was opened or it belonged to accused Gajender Kumar Sharma and his wife or signed by Inder Pal Singh.
214. PW38 Sh. Udai Chand was posted as cashier in the Okhla Industrial Estate, New Delhi from 2000-2003. He appeared in the witness box and identified the signature of accused Mahender on the Account Opening Form Ex. PW7/3 for the joint saving account No. 300118 as he had worked with him and he had seen Mahender Kumar signing and writing. He also identified the signature of accused Mahender on the reverse of DD Ex PW4/D at point A above which there was an endorsement/request to deposit the amount of the demand draft in saving account No. 300118. In cross examination he was made to admit that before joining in the post office Okhla Estate accused Mahender Kumar was suspended while being posted at Kalkaji Post Office but he did not remember whether Mahender was still under suspension when he was posted in Okhla. He further admitted that except while signing on receipt of salary he had not seen Sh. Mahender Kumar while signing and writing on any other document. Thus, it seen that defense did not dispute Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 100 of 197 that Account Opening Form Ex PW7/3 has the signature of accused Mahender Kumar nor did it dispute ability of the witness to identify the signature of the accused. Rather, he was made to confirm that he had seen accused Mahender signing or writing on the receipt of salary.
215. In order to prove that above stated saving accounts in the post office belonged to accused persons named above, prosecution also obtained opinion of a Handwriting expert from CFSL. It is stated that expert had opined that questioned signatures/handwriting on the Account Opening Form, Demand Drafts etc. matched with the respective specimen signature/handwriting of concerned accused persons obtained during investigation. Before adverting to handwriting expert's opinion about the questioned signature and handwriting, it is necessary to examine whether prosecution has successfully proved the specimen signature/handwriting of the concerned accused persons as it are the specimen signatures/handwritings in reference to which authorship of the questioned signature/handwriting have been determined. Therefore, it is necessary for the prosecution to prove beyond reasonable doubt that particular specimen signature/handwriting belong to a particular accused because in the absence of establishment of specimen signature/handwriting of the accused persons, expert opinion, howsoever favourable to prosecution it may be, cannot be acted upon. Before relying upon the expert opinion it has got to be established beyond reasonable doubt that particular specimen signature/handwriting is/are of a particular concerned accused person.
216. PW29 Sh. P. S. Chauhan was the independent witness to the taking of specimen signature/writing of accused Umesh Kumar Singh and Rajiv Kumar Srivastava. He deposed to the same effect in his examination-in-
Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 101 of 197 chief and identified his own signature at point A on each 10 sheets from S-180 to S-189 (D-109) Ex PW29/A containing specimen signature of Umesh Kumar Singh. Similarly, he identified his own signature at points A on each 21 sheets from S-190 to S-210 (D-110) Ex. PW29/B containing specimen signatures of Rajiv Kumar Srivastava. He however was unable to identify both accused in court citing lapse of time. In cross examination he deposed that person whose specimen signatures and writings were taken were neither known to him nor had he seen him earlier. He further deposed that Inspector before whom signatures were obtained, had told him about the names and identity of the person whose specimen signatures were taken. Thus, it could be seen that defense did not dispute that witness had witnessed the taking of specimen signatures of two persons. Though in court witness could not identify the persons whose specimen signature were taken in his presence.
217. PW47 Sh. Suresh Kumar is another independent witness to the taking of specimen signature/writing of accused Zile Singh Kasana, Gajender Kumar Sharma, Yogender Kumar Sharma and Dinesh Sharma. He deposed to the same effect in his examination-in-chief. He identified his own signature at point A on two sheets S-126 and S-127 (part of D-107) Ex PW47/A stated to be containing in the hand of accused Zile Singh Kasana signature formation of Yogender Kumar Sharma. He further identified his own signature at point A on six sheets S-142 to S-147 (part of D-107) Ex PW47/B stated to be containing in the hand of accused Zile Singh signature formation of accused Umesh Kumar Singh. He further identified his own signature at point A on eighteen sheets S-21 to S-38 (D-103) Ex PW31/H-2 stated to be containing signature and handwriting of accused Gajender Kumar Sharma. He identified his own Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 102 of 197 signature at point A on nine sheets S-39 to S-47 (D-103) Ex PW47/C stated to be containing signature and handwriting of accused Gajender Kumar Sharma. He further identified his own signature at point A on fifty sheets S-48 to S-97 (D-104) Ex PW31/H-3 stated to be containing signature and handwriting of accused Yogender Kumar Sharma. He identified his own signature at point A on twelve sheets S-98 to S-109 (D-105) Ex PW31/H-5 stated to be containing specimen signature of accused Dinesh Sharma.
218. In his cross examination he deposed that when the above mentioned proceedings were prepared apart from him the persons whose specimen signatures and handwriting had to be taken were also present. He further deposed that persons giving the specimen signatures and handwritings had the paper sheet from where they were copying. On attention being drawn to two dates on S-84 encircled at point X and point X-1 he deposed that he had not asked CBI officers about the relevance of the dates at point X and X-1. He deposed that these dates were also written by the person from the papers kept by them. In reply to court question, he clarified that there were some dates pertaining to cheques which were written. He had not seen the cheques but dates of the said cheques were written on the paper kept by the person giving specimen handwritings. He did not remember how many times he had visited the CBI office. He further deposed that the persons whose specimen signatures and handwriting were taken were not known to him and he had seen them for the first time in CBI office and cannot identify them in the court due to lapse of time. He denied the suggestions that no proceedings were prepared in his presence or that proceedings were already prepared and he signed the same under the pressure of CBI.
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219. PW56 Sh. Gurmeet Singh, the second IO, in his examination-in-chief deposed that during investigation he had recorded the statement of witnesses, seized various documents from concerned post offices and other departments, taken the specimen signatures/writings of accused Umesh Kumar Singh and Rajiv Kumar Srivastava. He, however, did not identify the sheets on which specimen signature and handwriting of accused Umesh Kumar Singh and Rajiv Kumar Srivastava were taken. In the absence of identification of sheets on which specimen signature/handwriting of concerned accused person were taken, his testimony is no worth so far as proving of specimen signature/handwriting of the concerned accused persons are concerned.
220. Similarly, PW57 Roshan Lal Yadav, the first IO, did not utter a word about the taking of specimen signature/handwriting of any of the accused persons, not to speak of identifying the sheets on which specimen signature of the concerned accused persons were taken. So was the testimony of PW58 Sh. H.S.Karmyal, the third and last IO as he also did not depose anything about the taking of specimen signature/handwriting of any of the accused persons in his presence or during the period of investigation conducted by him.
221. As noted above in order to prove specimen signature/handwriting of concerned accused persons, prosecution examined independent witnesses PW29 Sh. P.S.Chauhan and PW47 Sh. Suresh Kumar but both failed to identify in the court the concerned accused persons. Concerned IOs also did not depose anything categorically in this regard as noted in the previous two paragraphs. There is no other witness who could connect a particular specimen signature/handwriting to a particular concerned accused person. In the absence of firm reference point any Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 104 of 197 result of examination in reference to such unestablished reference point will have no value. Hence, handwriting expert opinion ( both the reports exhibited as Ex PW31/A and Ex PW31/B during the examination of handwriting expert PW31 Sh. V.K Khanna ) so far it relates to questioned signatures and handwritings, have got to be discarded and cannot be acted upon.
222. Now the question arises whether on the basis of evidence noted above prosecution has proved beyond reasonable doubt that a particular saving account was opened by the concerned accused persons. So far as saving account No. 747913 with Mukundnagar is concerned, there is no difficulty in holding so, as PW10 Hari Singh deposed to the same effect which was not much disputed by accused Gajender Kumar Sharma and accused Gajender Kumar Sharma also admits of having opened such account along with his wife Pushpa Sharma.
223. Prosecution evidence, however, fell much short of establishing that account No. 300122 was opened by accused Rajiv Kumar Srivastava and accused Umesh Kumar Singh. From the testimony of PW38 Udai Chand prosecution did successfully establish that account No. 300118 was opened by accused Mahender Kumar but could not prove that accused Yogender Kumar Sharma had anything do with it.
Whether out of 16 Demand Drafts, 7 drafts were deposited into account No. 300118, two demands drafts were deposited into account No. 747913 and whether one demand draft was deposited into account No. 300122? Whether 6 demands drafts were used for purchase of postal stamps?
224. It has already been found above proved that all the 16 DDs got prepared by Escort Ltd. were handed over to accused Gajender Kumar Sharma. It has also been found proved above that two DDs Ex PW6/DC and Ex Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 105 of 197 PW6/DD (also exhibited as Ex PW15/D8 and Ex PW15/D9) were credited into saving account No. 747913. Accused Gajender Kumar Sharma did not dispute of deposits of two DDs into the said account in his statement under Section 313 CrPC. Hence, it is not needed to go all over the testimonies again to see if the prosecution has proved the same.
225. PW4 Kedar Singh had deposed as noted above that seven DDs Ex PW4/A to Ex PW4/G were credited into saving account No. 300118 and he identified the signature of the then Sub-Post Master accused Zile Singh Kasana on the reverse of all the seven demands draft. Similarly, he had deposed that DD No. 505565 Ex PW4/H was credited into saving account No. 30112 and he identified the signature of Zile Singh Kasana on the reverse of said DD. In cross examination defense made him admit that accused Zile Singh Kasana had signed the same in token of receipt of the same and confirming the tallying of signature of the account holder and had forwarded the same to Head Office for onward processing. Thus, defense did not dispute deposit of seven DDs Ex PW4/A to Ex PW4/G in the saving account No. 300118 and one DD Ex PW4/H into saving account No. 300122 and signature of accused Zile Singh Kasana on the reverse of all eight DDs. As noted above PW7 Ramesh Chandra Sharma had proved the Account Opening Form Ex PW7/1 of account No. 300122 and account opening form Ex PW7/3 both containing signature of accused Zile Singh, the then Sub-Post Master and he also identified the statement of account/ Ledger card Ex PW7/2 and ExPW74 annexed with account opening forms respectively. It had been found above that defense did not dispute the existence of account No. 300118 and 300122 in the post office Kausambi. Ledger Card also shows credit of amounts of seven DDs into the account Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 106 of 197 300118 and one DD in 300122 and defense has also not disputed testimony of PW20 Sh. Bharat Bhushan Bhatnagar (the then accountant in State Bank of Saurashtra, Shastri Nagar, Ghaziabad) to the effect that all 16 DDs were presented to his branch through clearing house and payments of the aforesaid DDs were cleared through the clearing house.
226. Hence, there is no hesitation in holding that prosecution has successfully proved beyond reasonable doubt that two demands drafts bearing No. 505563 Ex PW6/DC and 505564 Ex PW6/DD were credited into saving account No. 747913 with Mukundnagar post office, seven DDs bearing No. 5055549, 505548, 505547, 505546, 505556, 505557 and 505566 Ex PW4/A to Ex PW4/G respectively were credited into saving A/c No. 300118 with Kausambi Post Office and one demand draft bearing No. 505565 Ex PW4/H was credited into saving account No. 300122 with Kausambi Post Office.
227. So far as remaining 6 demands drafts are concerned it is the case of the prosecution that they were used by accused Gajender Kumar Sharma in purchasing postal stamps from Mukundnagar Post Office. In order to prove that 6 demand drafts were utilized in the above said manner by accused Gajender Kumar Sharma prosecution examined PW25 Sh. Ratan Singh, PW42 Sh. Mukesh Kumar Sharma, PW51 Sh. Randhir Singh and PW48 Sh. Janardan Sharma.
228. PW25 Sh. Ratan Singh deposed that he had been running a firm with the name of Modern Mailing Service and had known accused Gajender Kumar Sharma present in the court. He further deposed that seven-eight year ago (from the date of his testimony) Gajender Kumar Sharma had asked him if he required some mailing tickets as he (accused) had been having excess tickets with him and accordingly he (PW25) purchased Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 107 of 197 tickets worth Rs. 1.5 lacs from him (accused) against payment in cash. In cross examination defense did not dispute purchasing of mailing tickets from accused Gajender Kumar Sharma by witness PW25.
229. PW42 Sh. Mukesh Chander Sharma was working in M/s Abhishek Enterprises in the year 2001-02. He deposed that he had been looking after sorting of post etc. at M/s Abhishek Enterprises which had been dealing in business of postage/Dak by franking. He claimed that having worked with accused Gajender Kumar Sharma and having seen him writing and signing him, he could identify the signature and writing of accused Gajender Kumar Sharma. On being shown D-99 Ex PW42/A-1, D-99/1 Ex PW42/A-2 and letter dt 13.09.2001 Ex PW42/A-3, he identified the signature of accused Gajender Kumar Sharma at point 'A' on all three documents. He had deposed to the effect that all the three letters were written in the hand of accused Gajender Kumar Sharma and two letters Ex PW42/A-1 and Ex PW42/A-2 were signed by accused. He further deposed that letter dt 13.09.2001 Ex PW42/A-3 was in the handwriting of Gajender Kumar Sharma and bore signature in the name of Mukesh Kumar Sharma at point X, X-1 and X-2 but he was not able to identify the signatures. He had further deposed to the effect that letters Ex PW42/A-1 and Ex PW42/A-2 bore the signature of accused Gajender Kumar Sharma at point 'X' on Ex PW42/A-1 and at point 'X' and "X-1' on Ex PW42/A-2 in receipt of having received the postal stamps (from post office). He further deposed that letter Ex PW42/A-3 bore receipt of tickets of Rs 2 lacs at point 'X-1" in the handwriting of Gajender Kumar Sharma which had been signed in the name of Mukesh Kumar Sharma at point "X-2" but he was not able to identify the signature at point "X-2".
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230. Vide each letters Ex PW42/A-1, Ex PW42/A-3 and Ex PW42/A-3 all addressed to Post Master, Mukundnagar, Ghaziabad request had been made for issuance of postal stamp of Rs 2 Lacs each upon encashment of two DDs mentioned in each letters. DDs No. 0505561 and 0505562 each of Rs 1 lacs were mentioned in letter Ex PW42/A-1, DDs No. 505559 and 505560 each of Rs 1 lacs were mentioned in letter Ex PW42/A-2 and DDs. No. 505557 and 505558 each of Rs 1 lacs were mentioned in letter Ex PW42/A-3.
231. In cross examination he was made to admit that above mentioned letters in the handwriting (and) under the signature of accused Gajender Kumar Sharma shown to him in the court were not written in his presence. He further deposed that only one letter was shown to him during inquiry by the CBI and other letters and documents had been shown to him for the first time in the court, however, he did not remember which letter was shown to him. On attention being drawn to Ex PW42/A-3 at point 'X' and 'X-2" he admitted that at point 'X' there was name of Mukesh Sharma and above that there were signatures in English. He admitted that at point 'X-2' Mukesh Sharma had been written but there was no signatures. He further admitted that in Ex PW42/A-1 there was an overwriting in date at point 'X-1'. He denied the suggestion that he had identified the signatures and handwritings of Sh. Gajender Kumar Sharma and others on the documents under the pressure of CBI officers. No suggestion was given to this witness that these letters did not have the handwriting of the accused or letter Ex PW42/A-1 and Ex PW42/A- 2 were not signed by accused Gajender Kumar Sharma or that there was no acknowledgement of postal stamp under the signature of accused Gajender Kumar Sharma on each letter or that no such letter was written Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 109 of 197 or no such DDs were deposited in the post office for obtaining postal stamps equal in worth. Also, there was no denial that he had worked with M/s Abhishek Enterprises or that he can identify the signature and handwriting of the accused Gajender Kumar Sharma.
232. PW48 Sh. Janardan Sharma was posted and working as Office Superintendent in the office of SSPO, Ghaziabad. He deposed that his duties had been to supervise the work of Sub-ordinates and to support the senior officers. He deposed that Post Office Kaushambi and Mukundnagar had been in the administrative control of SSPO, Ghaziabad. He further deposed that vide Receipt Memo Ex PW48/A (D-
118) bearing his signature at point A he had handed over sale stocks register of Post Office Mukundnagar for the period of 01/09/1999 to 31/08/2002. Upon seeing the sale stock register which is part of Ex PW48/A, he deposed that it was the same register which was handed over by him to CBI and which was received from the record of Mukundnagar Post Office. For identification of the register he had been asked by CBI officials to sign the same which he had done at point encircled A at the first page of the sale stock register Ex PW48/B.
233. He further deposed that postage stamps had been issued by the head post office and there had been limit for issuing of postage stamps to each post office but he did not remember the exact limit. He further deposed that In-charge/Sub Post Master had been under duty to make entry of the postage stamps in stock register and in other record. He further deposed that as per entry dated 13/9/2001 shown at point encircled at X-1 in stock register Ex PW48/B there had been sale of postage stamp of Rs 2,500/- and there had been balance of postage stamps of Rs 29,205.35/- encircled at point X2. He further deposed that Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 110 of 197 as per entry dated 18/09/2001 shown at point X3 in stock sale register Ex PW48/B, there had been sale of postage stamp of Rs 1250/- and there had been balance of postage stamps of Rs. 23,155.35/- encircled at point X4. He further deposed that as per entry dated 22/09/2001 shown at point X5 in stock sale register Ex PW48/B, there had been sale of postage stamp of Rs. 600/- and there had been balance of postage stamps of Rs. 19,035/- encircled at point X6. He further deposed that as per entry dated 13/09/2001, 18/09/2001 and 22/09/2001 in stock sale register Ex PW48/B there was no entry showing receipt or sale of postage stamps of Rs. two lacs.
234. There was no need for the defense to cross examine this witness so far as his testimony related to sale stock register and entries therein, are concerned as the entries in the register for relevant dates did not support the case of prosecution regarding sale of postal stamp to the tune of Rs 2 lacs on each three day. Defense did cross examine this witness and at one point it did look as if defense was making out a case that other record called SO summary account would have recorded such entries but somehow fell short of it. Be that as it may, this witness does not help the prosecution either independently or in association with other to prove that postal stamp worth Rs. 2 lacs or more were sold from Mukundnagar Post Office each day on 13/09/2001, 19/09/2001 and 22/09/2001.
235. PW51 Sh. Randhir Singh was posted as Public Relation Inspector (PRI) in Post Office, Ghaziabad. He deposed that he had handed over three documents to CBI vide receipt memo dt 13.05.2002 Ex PW51/A (D73) bearing his signature at point A. He identified documents D-74, D-75 and D-76 as the one which were handed over by him to CBI. He further Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 111 of 197 deposed that vide receipt memo dt 05/06/2002 Ex PW51/B (D-98) bearing his signature at point A, he had handed over certain documents from the office record maintained in ordinary course of business. On seeing D-99 and D-100 he deposed that these documents did not bear his signatures or handwriting and he could not identify the signatures of anyone on these documents. He deposed that D-99 (Ex PW42/A-1to Ex PW42/A-3) and D-100 Ex PW51/C bore the office seal of his post office at point encircled A respectively,
236. In cross examination he deposed that he did not remember whether he had handed over above mentioned documents to CBI officer or in his office or somewhere else or in the court. He further deposed that he had handed over the documents to the CBI as per the instructions of superior officer and he was not able to tell whether superior officer instructed orally or in writing by CBI. He further deposed that documents were handed over to him by dealing officials of postal department and he had handed over the same to the CBI. He further deposed that he had not dealt with the documents mentioned above and had just handed over the same as per instruction of officers.
237. Like any other documents, official documents have got to be proved in accordance with law of Evidence. Mere placing of documents on record does not amount to its proving. PW51 cannot be said to have proved the documents handed over by him vide receipts memo Ex PW51/A and Ex PW51/B. He at best can be said to have prove handing over documents to CBI from office record.
238. Cumulative evaluation of the testimonies of PW42, PW48 and PW51 do not prove that remaining six demand drafts were utilized by accused Gajender Kumar Sharma in purchase of postal stamps worth Rs 6 lacs.
Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 112 of 197 PW25 only proves that he had purchased postal stamp worth Rs 1.5 lacs from accused Gajender Kumar Sharma but he cannot say nor did he say that said postal stamps were those postal stamps which were purchased by Gajender Kumar Sharma by utilizing 6 DDs. Even if the contents of documents Ex PW42/A-1 to Ex PW42/A-3 and three documents of Ex PW51/A i.e. D-74, D-75 and D-76 all part of D-73 Ex PW51/A, are taken into consideration it would show that vide letters Ex PW42/A-1 to Ex PW42/A-3 accused Gajender Kumar Sharma had requested for supply of postal stamps worth the value of two demands drafts mentioned in each letters upon their encashment. Further perusal of Ex PW51/A (D-100 three documents) would show that vide each of these carbon copies documents, Sub-Post Master Mukundnagar Post Office had requested Sr. Post Master Ghaziabad to make arrangement for the supply of stamps for Rs. 2,00,000/- "against C/L/2558 cleared on 14.09.2001/15.09.2001"; "against C/L No. 2492 cleared on 10.09.2001/11.09.2001" and "against C/L No. 2619 cleared on 19.09.2001/20.09.2001". One carbon copy is dated 12.09.2001, other one is dated 22/09/2001 and date on third carbon is not legible. Letters Ex PW42/A-1 to PW42/A-3 vide which accused had requested for issuance of postal stamp are all dated 13/09/2001. Obviously Sub Post Master's letter dt. 12/09/2001 cannot be related to any of the above request of the accused. Further, sale stock register Ex PW48/B does no show receipt of postal stamp from Sr. Post Office pursuant to request of Sub-Post Mater Mukundnagar. Hence, prosecution could not successfully prove that remaining six out of 16 demand drafts got prepared by Escort Ltd. and given to accused Gajender Kumar Sharma, were utilized by accused in purchasing postal stamps worth Rs. 6 lacs.
Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 113 of 197 Whether Franking License bearing No. UP-23/0047/99 was issued to M/s Rashtriya Sahara, Noida, UP?
239. It is the case of the prosecution that the returned enveloped franked by M/s Abhishek Enterprises while posting the Annual Reports of the Escort Ltd. for the year 2000-01 contained franking impression of town die showing license No. VMS/UP-23/0047/99 but license No. UP- 23/0047/99 as per prosecution was issued to M/s Rashtriya Sahara, Noida. In order to prove this, prosecution examined PW9 Sh. Rajesh Jain and PW14 Sh. Shivaji Mishra.
240. PW9 Sh. Rajesh Jain in the year 2002 was posted in the head post office of Ghaziabad as Postal Assistant to Post Master. He deposed that he had been dealing clerk concerning Franking Machine Licenses (Electronic) and other matters related to the said machine relating to the jurisdiction of Ghaziabad. Upon seeing the file of UP-23/0047/99 relating to the grant of Franking Machine License issued to M/s Rashtriya Sahara, Noida, UP, he deposed that he had dealt with this file. He further deposed that an application for fresh license for grant of Franking Machine, signed by Rajiv Agarwal had been received from Rashtriya Sahara with a certificate of fitness, recommendation of the supplier i.e. M/s Kilburn, letter of M/s Kilburn and license fee receipt. He further deposed that file had been processed by him and since the papers had been in order so he had submitted the same to Sh. C. S. Rawat Sr. Superintendent Post Office, Ghaziabad Division for perusal and orders. In his testimony application form, recommendation of supplier, certificate of fitness, letter of M/s Kilburn and license fee were exhibited as Ex PW9/1 to Ex PW9/5 respectively. He identified his note Ex Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 114 of 197 PW9/6 bearing his signature at point A and that of C. S. Rawat at point B. He identified the handwriting and signature of Sh. C. S. Rawat. He further deposed that he had prepared window ticket Ex PW9/7 and license proforma Ex PW9/8 which were filled by him and signed by Rahul Sharma, the then office supervisor at point A. He further deposed that license number UP-23/0047/99 dt. 28/04/1999 had been issued to M/s Rashtriya Sahara for 5 years from 28.04.1999 to 31.12.2003 and firm was allotted Noida Complex Post Office Sector-19 Pin Code 201301 for dispatching of dak. He further deposed that no franking machine license had been issued to any private bulk mailer including M/s Abhishek Enterprises. He further deposed that he had handed over the file to CBI vide receipt memo Ex PW9/9.
241. In his cross examination he deposed that during his tenure 116 license had been issued but he was not able to tell the names of the parties to whom such license had been issued without the record. He deposed that the information about the issuance of license had been sent to the concerned post offices and to the manufacturing company. He admitted that electronic licensing machine would run only till the amount sanctioned for it was over. He further deposed that value for the license had been given by separate office i.e. Noida Head Post Office, however, he did not know for how much value license had been issued to M/s Rashtriya Sahara. He further deposed that he could not tell how M/s Rashtriya Sahara had used the machine after getting license and also could not tell about the clients of M/s Rashtriya Sahara. He further deposed that he had not been in receipt of complaint from anyone about the misuse of license by M/s Rashtriya Sahara as he had not been concerned with the complaints. Thus, it can be seen that defense is not Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 115 of 197 disputing the issuance of license No. UP-23/0047/99 to M/s Rashtriya Sahara nor it disputed or questioned the officials documents in this regard.
242. PW14 Sh. Shivaji Mishra had been working as clerk with Rashtriya Sahara Press Noida, Sector-11, UP since 1995. He deposed that Sh Ajay Agarwal was the head of the department of dispatch section of Rashtriya Sahara. Upon seeing the file (D-91) he deposed that it pertained to his office and related to Franking Machine License No. UP-23/0047/99 dt. 28.04.1999. He identified signature of Sh. Ajay Agarwal at point on A on application Ex PW9/A as he had seen him writing and signing. He further deposed that work of franking was looked after by him since the grant of license. He deposed that license was initially granted for 5 years on 28.04.99 and was subsequently same was further renewed for another 5 years. He further deposed that receipt memo dt. 15.07.2002 Ex PW14/A signed by him at point A1 and A2 was prepared in token of taking of specimen impressions on two sheets of the franking machine installed at Rashtriya Sahara. He further deposed that impressions sheets Ex PW14/B and Ex PW14/C each bore his signature at point A. He further deposed that in Rashtriya Sahara Press, Noida there had been only one Franking Machine with number PB-00840 and not PB-4235. He further deposed that license number RSUP-23/0047/99 had been written in the die of said machine PB-00840 owned by Rashtriya Sahara. He further deposed to the effect that franked materials were posted from Post Office Noida.
243. In cross examination he deposed that he could not say the value filled in the meter of the franking machine between 1999-2002 without seeing the record. He further deposed that he did not know the technical know Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 116 of 197 how of the working of the franking machine. He further deposed that value meter of the machine cannot be tampered with but the die could be replaced if same was worn out being old or in any other emergency case. He deposed that he was responsible for the use of the said franking machine and even after his duty hours no one used the same. He further deposed that key was in meter always in the machine itself and by using that key the franking machine could be operated.
244. Thus, it is seen that PW9 and PW14 corroborated each other orally and documentarily in establishing that Franking License No. UP-23/0047/99 was issued to Rastriya Sahara, Noida which was used for Franking Machine bearing Meter No. PB-00840 and defense has not disputed the same at all. Hence, there is no hesitation in holding that prosecution has proved beyond reasonable doubt that Franking License No. UP- 23/0047/99 was issued to Rashtriya Sahara, Noida for franking Machine PB-00840.
Whether Franking Machine PB-4235 was sold to M/s Z.F. Steering Gear (I) Ltd, 1242/44, Village Vadu, Budruk, Unna or Poona, Maharastra?
245. It is the case of the prosecution that returned envelopes of Annual Reports of Escort Ltd. franked by M/s Abhishek Enterprises had the franking meter impression showing franking meter No. PB-4235 but the Franking Machine bearing meter No. PB-4235 was sold to M/s Z.F. Steering Gear (I) Ltd. and not to M/s Abhishek Enterprises. In this regard prosecution has examined PW35 Sh. Ashok Sikka who had worked with M/s Kilburn Office Automation and was later on working as Product and Sales Manager in Pitney Bowes India Pvt. Ltd., the manufacturer of Franking Machine. .
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246. PW35 Sh. Ashok Sikka, who having worked with M/s Kilburn Office Automation Ltd. was shifted to Pitney Bowes India Pvt. Ltd. In the year 1999, upon seeing the letter dt. 25.11.2002 Ex. PW35/A (D-116) deposed that he could identify the signature of A. K. Sahu appearing at point A on the said letter as he had worked with him and seen him signing and writing. On the basis of the said letter, he deposed that meter No. PB-4235 was sold to M/s Z.F. Steering Gear (I) Ltd. Serial No. 1242/44, village Vadu, Budurk, Unna, Maharashtra.
247. In cross examination he deposed that he had no knowledge of the contents of letter Ex PW35/A. He was also unable to tell for which postal area machine PB-4235 was issued. He admitted that as per his testimony dt. 15.05.2010, meter No. PB-4235 was sold to M/s Z. F. Steering Gear (I) Ltd. Serial No. 1242/44, village Vadu, Budurk, Unna, Maharashtra. He further deposed that sale of the aforesaid machine was in Maharashtra from its Bombay (Mumbai) office. Defense is neither disputing the sell of Franking Machine bearing meter No. PB- 4235 to above said firm nor claiming that such meter was sold to M/s Abhishek Enterprises. In fact while cross examining PW22 defense gave suggestion to him that Franking Machine sold in Maharashtra was arranged by him for franking of Annual Reports by M/s Abhishek Enterprises.
248. Perusal of letter Ex PW35 shows that it was written for and on behalf of M/s Kilburn Office Automation Ltd. by A.K. Sahu in response to certain query put in writing by IO Gurmeet Singh (PW57). In the letter Ex PW35//A it has been written that Meter No. PB-4235 was sold to Z. F. Steering Gear (I) Ltd. Serial No. 1242/44, village Vadu, Budurk, Poona, Maharashtra. PW35 Ashok Sikka at best can be said to have proved that Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 118 of 197 the letter Ex PW35/A was signed by A. K. Sahu and was written for and on behalf of M/s Kilburn Office Automation Ltd. He, however, cannot be said to have proved the contents of the said letter. No sale record was produced nor was the record on the basis of which A. K. Sahu replied/prepared his reply was produced nor anyone from the aforesaid firm was examined. Hence, it cannot be said that prosecution has successfully proved that Franking Machine meter No. PB-4235 was sold to aforesaid M/s Z. F. Steering Gear (I) Ltd., though defense did not dispute that said machine was sold in Maharashtra as is evident from the suggestion given to PW22.
Whether there was any irregularity or illegality in processing the 10 demands drafts in respective saving accounts?
249. It has been found above proved that Escort Ltd got prepared 16 demand drafts favouring Sr. Post Master, Ghaziabad and all the 16 demands drafts were handed over to accused Gajender Kumar Sharma and of these 16 demands drafts, two DDs each for Rs 1 lac were deposited into the saving account No. 747913 maintained at Mukundnagar Post Office, standing in the joint name of accused Gajender Kumar Sharma and his wife Pushpa Sharma, one DD for Rs One lac was credited into saving account No. 300122 with Kausambi Post Office standing in the joint name of Rajiv Kumar Srivastava and Umesh Kumar Singh (not proved to be the concerned accused persons) and 7 demands drafts amounting to Rs 5,69,657/- were credited into account No. 3001118 with Kausambi Post Office standing in the joint name of Yogender Kumar Sharma ( not proved to be accused Yogender Kumar Sharma ) and accused Mahender Kumar. It is the case of the prosecution that aforesaid crediting of Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 119 of 197 amounts of demand drafts favouring Sr. Post Master, Ghaziabad was criminal misconduct on the part of the concerned officer i.e. concerned Sub-Post Masters and dealing clerk as the demand drafts meant for Sr. Post Master could not have been credited into personal account of the party. In this regard prosecution has examined PW3, PW4, PW5 and PW8
250. PW3 Sh. S. L. Makkar in his examination-in-chief deposed that saving account by individuals were opened in the post offices, amounts could be deposited in the said account by an individual either through cash or cheques/bank drafts and amounts could be withdrawn either in cash or through cheques. He further deposed that cheque books were issued by the post office on their request. He further deposed that as per rule 244(5)(c) contained in Chapter 30 of the Post Office Small Saving Scheme Part-II 10th Edition 1997 "a cheque drawn on Post Office Saving Bank in favour of a person other than the depositor may also be accepted for credit in post office saving bank provided it has been duly endorsed in favour of the depositor". He further elaborated by saying that said rule meant that cheque would be credited in the account of the person in whose name it was and not in the name of the person who had taken the cheque for deposit. He further deposed that as long as the cheque was endorsed in favour of the depositor it could be deposited by any person and cheque would always be deposited in the name of the account holder only and if the cheque was in the name of the person A it could not be deposited in the account of person B unless it was endorsed by person A in favour of person B.
251. In cross examination PW3 Sh. S.L. Makkar deposed that cheques or demand drafts drawn by a person in favour of Postal Authority could be Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 120 of 197 endorsed either by the person issuing the cheque or the postal authority in whose favour the cheque was drawn. He also admitted that the post office where the cheques/demand drafts had been deposited did not give credit at their own rather they sent the demand draft/cheque to the Head Post Office for clearance and after receiving their clearance the concerned post office gave the clearance and only on approval of Head Office credits had been given. He further admitted that request of the depositing party for credit of the amount of demand draft in his account could have been rejected/disallowed by the Head Office before giving the clearance. He denied the suggestion that any Cheque or Demand Draft etc. of any bank/saving account could not be deposited in individual Post Office Saving Bank account unless and until it was endorsed by the depositor himself. He further admitted that Rule 244 (5)
(c) spoke of only post office saving bank account and not of any bank's saving bank account. He volunteered that a full content of the rule would explain that other saving banks instrument could be also dealt with in saving banks cheques upon Clause 3 (1) of Rule 244. He further deposed that the clearance of the above DDs/Cheques were through Reserve Bank of India. He admitted that in all DDs there was specific endorsement by the depositor that amount may be deposited in their saving account. He voluntarily clarified that endorsement on the cheques/DDs had to be made by the depositor and not by the presenter. He admitted that Rule 39(1) of Post Office Saving Bank Manual Part-II dealt with subsequent deposits in saving bank account.
252. His testimony did not help prosecution in proving that any criminal misconduct was committed on the part of the concerned postal staff in crediting the amount of demand drafts in the personal account because Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 121 of 197 all the concerned DDs had been endorsed by the respective account holders with request to credit the same in respective account and all DDs were sent to Head Office for realization which did not find any fault in such realization and permitted crediting of the amount in respective account.
253. PW4 Sh. Kedar Singh in his examination-in-chief had identified all the DDs and signature of Zile Singh and Inder Pal Singh on the concerned DDs as has been noted herein before. In cross examination he admitted that all the drafts referred in his statement had been sent to the Head Office and after processing and approval of Head Office the amounts of drafts had been credited in the respective account. He further admitted that Zile Singh Kasana had put his signature in token of receipt of the demand drafts and then he had forwarded these demands drafts to Head Office for processing and approval. He further deposed that signature of Zile Singh Kasana had only been to confirm that the signature of customer tendering the demand draft had tallied with the specimen signature available in the respective account. He further deposed that if the request of depositor for credit of amount of demand draft in their account had not been permissible then Head Office during process would have rejected the request. He further deposed that the Head Office had allowed the request for credit as per endorsement on the back of the demand draft. His testimony also does not help prosecution in establishing the point being dealt with herein.
254. PW5 Sh. Shailender Kumar Sharma in his examination-in-chief deposed that saving accounts were opened in the post office. He further deposed that there was an application form for opening of an account and on submitting the Application Form along with the cash, cheque or the Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 122 of 197 postal order the account was opened and the pass book was issued. He further deposed that for opening of all accounts, apart from the submission of the Application Form, an introduction form of a person known to the Post Office was required and introduction of the applicant amounted to verification of the applicant. On court query he deposed that apart from the introduction by the introducer known to the post office, there was no other verification conducted for opening the account. He further deposed that for a single account holder the transaction could be till Rs. 1 lac and if the depositor deposited cheques beyond Rs 1 lac, the depositor was advised to withdraw some amount to make it one lac. He further deposed that for a joint account the transaction could be Rs. 2 lacs. In reply to court query he had replied that limit of Rs 1 lac for single account holder and limit of Rs 2 lacs for joint account holder was in existence as on the date of his testimony as well in February 2002 when he was posted as Post Master in Ghaziabad. Thus, it can bee seen that PW5 Sh. Shailender Kumar Sharma in his examination-in-chief did not pin point specifically any criminal misconduct on the part of the concerned public servants vis-a-vis the issue being dealt with herein.
255. In cross examination he deposed that the negotiable instruments i.e. cheques, demands drafts, banker's cheque for refilling of the amount in the Franking Machine could be addressed in the names of the Post Master of the designated Post Offices or the Sr. Post Master of Ghaziabad. He further deposed that there was no endorsement required on the reverse of the Negotiable Instrument in each case so that the license holder gave the details in which account the same had to be deposited. He volunteered that there was a forwarding letters with all Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 123 of 197 negotiable instrument mentioning these details and for depositing in the Saving Bank account there was Pay-in-Slip which was required to be filled in. He admitted that these forwarding letters were of the party. He further deposed that if a license holder did not submit a forwarding letter with the negotiable instrument and submitted the details of the account in which the amount had to be deposited on the reverse of the negotiable instrument, the same would be wrong. He further deposed that in the endorsement the license holder had to mention for what purpose the amount was to be deposited and cheques were to be in the name of Post Masters. His aforesaid testimony related to negotiable instrument submitted for refilling the franking machine. He clearly deposed that for depositing the amount in the account Pay-in-Slip were being used and in the present case all demands drafts were requested to be credited into respective account not only on the basis of Pay-in-Slip but also on the basis of request by way of endorsement on the reverse.
256. PW5 Sh. Shailender Kumar Sharma further in his cross examination admitted that in all post offices in individual accounts, amounts could be deposited by cheques, DDs and Postal Orders. He further admitted that only State Bank of India, Ghaziabad had been the Clearing House for all the instruments. He further admitted that on the reverse of the cheques, demands drafts and postal order drawn in favour of the Sr. Post Master, the details of the account into which the amount of those instrument was to be deposited even for individual accounts was mentioned. He admitted that details may be mentioned on the reverse of the instrument or in the forwarding letter. He admitted that all cheques, demands drafts and postal order accepted in the post office within his jurisdiction had to reach him i.e. Sr. Post Master. He quickly added that postal orders were Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 124 of 197 encashed at the post office where they were accepted and did not reach Sr. Post Master. He further deposed that Postal Orders were encashed at the Post Office where they were submitted and accepted. He admitted that Sr. Post Master was posted only at the Head Post Office. He further deposed that the dealing hand on receipt of the cheques and the demand drafts put up the same before the Assistant Post Master who initialed the same and then sent the same for clearance. He admitted that after clearance of the cheque and the demand draft by the Clearing House, the Assistant Post Master intimated the dealing hand of the same who in turn intimated the concerned Post Office where the Cheque or DDs had been submitted, to be credited to that account. He further deposed that no inquiry had been made from him by CBI about any cheque or demand draft having been cleared without proper endorsement, forwarding letter or pay-in-slip. He further admitted that whatever statement he had given to CBI had been on the basis of his personal knowledge and experience. He further admitted that the Asst. Post Master who initialed the cheques or demand drafts sent for clearance was known as Post Master on Duty for clearance. He further deposed that he did not remember if the accused Om Prakash Sharma, B.D. Goswami and Inder Pal Yadav ever functioned as Post Master on Duty for clearance during his tenure.
257. Thus, it can be seen that PW5 Sh. Shailender Kumar Sharma did not point out any criminal misconduct on the part of any of the public servants under trial herein. His testimony does not show that Demand Drafts in the name of Senior Post Master could not have been credited into personal saving account of the account holder. The process explained by him also suggest that amount of a cheque or demand draft Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 125 of 197 favouring Sr. Post Master can be credited into personal saving account with post office if there is endorsement to this effect by the account holder on the reverse of the DD/cheque. All the three witnesses above discussed did not specifically point out criminal misconduct on the part of public servant so far as encashment of DDs in the personal accounts are concerned. Further, there is no testimony on record that DDs in question entered the post office for the purpose of payment into the account of Sr. Post Master, Ghaziabad or for any other official purpose and public servant involved herein illegally managed amounts thereof being credited into personal account of concerned accused persons. No rule or provision has been cited by any witness that amount of cheques/DDs favouring Sr. Post Master can in no circumstances be credited into personal account of the accused persons. Further, witnesses have admitted that all Cheques/DDs favouring Sr. Post Master went to Head Office for realization and if they were not meant to be realized in the personal account of the party it could have rejected their crediting into respective personal account of the party which admittedly is not the case here.
258. Defense has examined DW2 Sh. Daya Ram Dubey, a retired Post Master, who on this point in his examination-in-chief has explained the procedure of realization of amounts of DDs/cheque favouring Sr. Post Master and its crediting into the personal account of a party. It is obvious he came to support defense but his testimony need not be discussed here as prosecution on its own has failed to bring home that any of the public servant committed criminal misconduct in realization of the amounts in the personal account of concerned accused persons.
259. Interestingly none of the prosecution witnesses in their examination-in-
Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 126 of 197 chief either generally or specifically pointed out any act to have been done by one or other public servant in violation of postal department's manual amounting to criminal misconduct or offense under penal code on the part of public servant. Even all three Investigation Officers also in their respective examination-in-chief did not depose specifically anything as to what act was done by the respective public servants amounting to criminal misconduct or offense under penal code on the part of public servants. Witnesses explained the general procedure or rule of encashment of cheque/DDs in account but did not point out that there was any violation of the same by any of the public servants. Prosecution should have taken care in bringing out from concerned witnesses the specific act of violation or act amounting to criminal misconduct or offense committed on the part of public servant. Merely pointing out rules or manuals without allegation of its violation by one or other accused is not sufficient and it should not have been left upon the court to undertake the exercise of finding out the violating act on the part of public servant. It is worthwhile to note that PW52 Sh. Subhan Ali, PW53 Alummuddin, PW54 Sh. Veer Mohinder Singh and PW55 Sh. Brijpal Singh did not help prosecution in any manner except that they had handed over official documents/records to the investigating agency. Contents of any documents/records can be taken into account only when its execution, existence etc. have been duly proved. PW52, PW53, PW54 and PW55 did not prove any of the documents/records they had handed over to investigating agency nor did prosecution chose to examine any other witness to prove those documents/records. Public documents like any other documents have got to be proved in accordance with Evidence Act. Be that as it may, prosecution has Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 127 of 197 grossly failed to prove that any criminal misconduct or offense was committed by public servants in crediting the amounts of demand drafts in question in the personal account of the concerned party.
260. Chapter 30 rule 244(5) of the Post Office Small Saving Scheme Rules-
Part-II, 10th Edition read as under:-
"CHAPTER 30 CHEQUE SYSTEM IN P.O. SAVING BANK This chapter has been prepared on the basis of rule contained in Appendix1 of P.O.S.B. Manual Volume I, P&T Cheque Manual and various other circulars issued by the D.G.Post from time to time. 244.1. General:- The facility of deposits or withdrawal by cheque in Saving Bank accounts is available in all Head and Department Sub Post Office. The facility of deposit by cheque/demand draft only is available in the Extra Department Sub Post Office and Branch Post Offices.
5. If the cheque presented for deposit is not drawn in favour of the Post master by the depositor the following condition should be satisfied.
(a) If the cheque is drawn in favour of the depositor, there is no need of making an endorsement (signature) by the depositor on the reverse of the cheque as the instrument is tendered with the pay-in-
slip for deposit. The Counter Assistant will write the account number on the back of the cheque and impress the date stamp.
(b) There is also no objection to the acceptance of cheque drawn by a third party in favour of the Postmaster provided the cheque is accompanied by an application from the depositor requesting the Postmaster to credit the amount into his account.
(c) A cheque drawn on the POSB in favour of a person other than the depositor may also be accepted for credit in Post Office Saving Bank provided it has been duly endorsed in favour of the depositor."
261. An attempt was made by the prosecution to contend that public servants Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 128 of 197 involved in this case had violated the above rule 244(5)(c) but perusal of above rule 244(5)(c) shows that said rule applies when the instrument has been drawn on Post Office Saving Bank in favour of person other than the depositor (means account holder). In the present case 16 demand drafts were not drawn on POSB in favour of any party other than depositor. In fact the 16 Demand Drafts were drawn on State Bank of Saurashtra in favour of Sr. Post Master, Ghaziabad.
262. Present case is rather covered by above rule 244(5)(b) which lays down no objection to the acceptance of instrument in favour of the Postmaster provided the instrument is accompanied by an application from the depositor requesting the Postmaster to credit the amount into his account. No form of application has been provided. It has already been noted above that all the 10 DDs that went into above mentioned three POSB accounts had endorsement on the reverse with request to credit the amount into the respective accounts. Therefore, there processing by the public servants for crediting the amount in the said three POSB accounts cannot be said to be in violation of above rule 244. Though PW20 Bharat Bhusan Bhatnagar of Statement Bank of Saurashtra proved payments of all 16 Demand Drafts in favour of Sr. Post Master, Ghaziabad but prosecution failed to prove that remaining 6 demand drafts were utilized in the purchase of postal stamps by accused Gajender Kumar Sharma. In any case, prosecution has grossly failed to prove that public servants committed criminal misconduct in crediting the amounts of 10 DDs in three private POSB accounts or in allowing alleged purchase of postal stamps.
Whether accused Gajender Kumar Sharma, at the instance of accused Y. K. Sharma, got prepared a counterfeit die from Accused Tarique Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 129 of 197 Mohammad through one Vijay Kumar Sharma?
263. It is the case of the prosecution accused Gajender Kumar Sharma used meter No. PB-5507 for franking of the Annual Reports of M/s Escort Ltd. during August/September 2001 and for this purpose he at the instance of Yogender Kumar Sharma got prepared a counterfeit franking die from accused Tarique Mohammad of Aligarh through Sh. Vijay Kumar Sharma @ Khan. It is alleged that accused Tarique Mohammad was the authorized agent of M/s Kilburn Refrographics Ltd. to prepare franking dies for franking machines sold by M/s Kilburn Refrographics Ltd. only on their written instructions. It is alleged that accused Tariqu Mohammad without any written instruction prepared the counterfeit circular die with license No. "VMS UP-23/0047/99 Ghaziabad-245201"
and counterfeit rectangular value die with franking mater unit No. PB- 4235.
264. Star and only witness in this regard is PW26 Sh. Vijay Kumar Sharma @ Khan through whom at the instance of accused Yogender Kumar Sharma accused Gajender Kumar Sharma allegedly got prepared counterfeit die from accused Tarique Mohammad. PW26 in his examination-in-chief deposed that about 8-10 years before the date of recording of his examination-in-chief, he had been working as franking machine operator. He knew accused Gajender Kumar Sharma duly identified by him in the court. He also knew one Ishwar Dutt Sharma brother-in-law of accused Gajender Kumar Sharma. He deposed that accused Gajender Kumar Sharma had been running a firm under the name and style of M/s Abhishek Enterprises and when Abhishek Enterprises had not had license, accused Gajender Kumar Sharma used to come to him for mailing the dak. He further deposed that accused Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 130 of 197 Gajender Kumar Sharma had told him that he had to mail Annual Report of Escort from Ghaziabad. He further deposed that accused Gajender Kumar had been having office at Meerut Road, Ghaziabad and at Munirka, Delhi.
265. He further deposed that accused Gajender Kumar Sharma had sent him to Aligarh with a paper for preparing die for mailing the Annual Report of Escort. He further deposed that accused Gajender Kumar Sharma had given him Rs. 4,000/- - Rs. 5,000/- over and above his expenses for the same. He further deposed that die had been got prepared from accused Mohd. Tariq whom he identified correctly in the court. Upon seeing the envelopes Ex PW22/A-20 (463 in numbers) he deposed that on these envelopes round stamp of Ghaziabad VMS UP-23/47/99 at point B on each envelope had been embossed and impression of this round stamp was the same which had been got prepared by him from accused Mohd. Tariqu. He further deposed that he had got his statement recorded before Magistrate under Section 164 CrPC. He identified his said statement Ex PW26/A.
266. Perusal of his statement recorded under Section 164 CrPC would show that he did not say many things in the court as he had said before Ld. Magistrate. It would be worthwhile to note substantial part of what he had stated before Ld. Magistrate. Relevant portion of statement recorded before Ld. Magistrate in translated form is as under:-
"In the year 2001 Gajender Kumar Sharma got the contract of mailing Annual Report of Escort Ltd., Faridabad. For this Gajender had informed me that Annual Report of Escort would be sent from Ghaziabad. For this purpose he had taken on rent a big hall at Hapur Mor, Ghaziabad. One day in the evening in my presence Gajender Kumar Sharma received a call from Y. K. Sharma and he had Gajender note license No. and monogram for making a die. Gajender asked me to get a die made from Mohammad Tarique at Aligarh. He (Gajender) gave me his car, driver, Rs 5,000/- and a paper making Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 131 of 197 picture of monogram on it and said he had already talked to Mohammad Tarique. And I should get him die made from him (Tarique). I gave monogram to Tarique for making die. Next day by around 12 noon he gave me prepared die and I gave him Rs 2,500/-. Mohammad Tarique had asked for letter from Kilburn on which I had asked him to talk to Gajender.
I can recognize seal of franking. Gajender had also told him that work after the franking of Escort company would be done by Y. K. Sharma. About this Y. K. Sharma had already talked with officials of Post Office. The mails of Escort used to be loaded in vehicle in Okhla and sent to Ghaziabad. There at Ghaziabad all the envelopes were stamped by Franking Machine. Work of stamping continued from 31.08.2001 to 4.09.2001. During this work, there used to be some labour with Gajender. He used to make me also stay there. Besides, four employees of Escort namely Aman Sharma, Kishan, Pathak and Patre took turn to stay there.
Y. K. Sharma used to come everyday in vehicle of Post office. He used to come every day except Sunday between 31/08/2001 and 4/09/2001. He used to take away franked dak after filling them in bags. I cannot say where he used to take them. Total mails of Escort were little less than 90,000. All these daks were franked in my presence. For doing this work, Gajender had paid me Rs 500/- towards conveyance and food.
I can recognize the impression of the die which I had brought prepared from Aligarh from Mohd. Tarique. That die is now not available. In those dies 4235 was written in rectangular die and VMS Ghaziabad in circular die."
267. Thus, it could be seen that before court PW26 deposed about only one die and also identified the impression of one round die only whereas before Ld. Magistrate he had spoken about two dies rectangular and round one. Further, in his statement under Section 164 CrPC he had stated about some role of accused Yogender Kumar Sharma but in his testimony before court he was completely silent about accused Yogender Kumar Sharma.
268. In cross examination defense instead of disputing his relationship of any kind with accused Gajender Kumar Sharma and accused Tariq Mohammad put so many questions which confirmed his acquaintance with accused Gajender Kumar Sharma and also his knowledge about Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 132 of 197 accused Tarique. Defense in cross examination also brought out a fact that witness had gone to accused Tarique Mohammad for getting town die repaired/changed on earlier occasion when witness was working with one IGD Services. Counsel on behalf of accused Gajender Kumar Sharma made him admit that he had spoken truth before the court. So defense on behalf of accused Gajender Kumar Sharma did not dispute his testimony.
269. Most of the cross examination conducted by counsel for accused Tarique remained directed towards bringing out facts relating to authorize change of die when he had gone to accused Tarique on behalf of IGD Services. He denied the suggestion that after the year 2000 when he had started his own work, on many occasions he had also undertaken the mailing work at Faridabad. He further denied the suggestion that he had independently undertaken the mailing work of Escort company at Faridabad. He volunteered that he had involved himself in the work of Escort company, Faridabad only with accused Gajender Kumar Sharma at his (accused) instance at Ghaziabad in the year 2001. He denied the suggestion that he knew Sh. Vinod Dixit, GM of Escort, Faridabad.
270. In his further cross examination conducted by counsel for accused Tarique, PW26 deposed that whenever he had gone to Aligarh (on one occasion on behalf of IGD Services and another occasion on behalf of accused Gajender Kumar Sharma) to hand over the die to accused Mohd. Tarique, one closed envelope containing a letter had been given to him by IGD/accused Gajender Kumar Sharma which he had handed over to accused Tarique Mohd but he did not know what was written in the said letter or if it had been issued by the manufacturing company of franking machine. He denied the suggestion that before making Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 133 of 197 statement u/s 164 CrPC before Ld. MM, a statement in writing had been given to him by the IO of the CBI with instruction to state accordingly the facts before the Ld. MM. He further denied the suggestion that IO had told him that he would be implicated in false case if he had not deposed before the Ld. MM according to the wishes of the IO. He further denied the suggestion that he had given the statement before Ld. MM due to pressure and the threats of the IO. He further denied the suggestion that in order to save himself he had given the statement before Ld. MM according to the instruction of the IO. He denied the suggestion that he had concealed the true facts and had deposed falsely in his statement before Ld. MM u/s 164 CrPC.
271. No suggestion was given that he was not sent by accused Gajender Kumar Sharma along with money and monogram for getting counterfeit die prepared from accused Mohd. Tarique from Aligarh. No suggestion was given that accused Tarique Mohammad did not give him prepared counterfeit die next day or that he did not pay Rs 2500/- to accused. No suggestion was given that round impression containing inscription "VMS UP-23/0047/99 Ghaziabad" was not from the die brought prepared by him from accused Tarique from Aligarh. Even there was no suggestion that impression 'VMS UP-23/0047/99 Ghaziabad" on envelopes were not fake. There was no suggestion that accused Mohd. Tariqu was not making die for M/s Kilburn.
272. After completion of cross examination Court put a question to PW26 and in response to the same he deposed that first time he had gone to accused Mohd. Tarique at Aligarh in connection with die on behalf of IGD Services before 2001 and he had been given an envelope containing a letter as well as a die which was received from Kilburn.
Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 134 of 197 Second time, he continued, he had gone to accused Tarique Mohd in connection with a die of a franking machine on the request of accused Gajender Kumar Sharma in the end of August 2001. This time, he further continued, he had been given only a paper/letter by accused Gajender Kumar Sharma and from the closed envelope, it could have been understood that die had not been in the envelope. He further went on to say that he had been told to handover the envelope containing the letter to accused Tarique Mohd. He added perhaps the die had to be directly supplied by Kilburn company/dealer to accused Tariqu Mohd. He further deposed that on both occasions he had been given a closed envelope but he did not know what had been written in the letter.
273. Despite certain contradiction as noted above between examination-in-
chief and his statement recorded under Section 164 CrPC, nothing substantial was brought out in the cross examination to make his testimony dis-believable or having element of reasonable doubt. He remained firm on the stand that he was sent to accused Mohd. Tarique by accused Gajender Kumar Sharma for getting die prepared and that accused Mohd. Tarique gave prepared die to him. Though there is confusion whether he got one die or two dies prepared from accused Mohd. Tarique and defense could have worked upon contradiction and could have extracted more contradictions in his testimony but when defense for accused Tarique did not dispute his testimony even by giving contrary suggestion and when defense for accused Gajender Kumar Sharma made him admits his testimony before court as true, why then Court should go deep into contradictions noted above to entertain any sort of doubt particularly when he is otherwise firm and believable and particularly when defense did not bring out any reason as to why he Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 135 of 197 would speak lie against them.
274. Though fake die could not be recovered but its non recovery is not fatal to the case of the prosecution. Further, though there is only one witness to this aspect of prosecution's case but looking for corroboration is more a rule of prudence than rule of evidence. Finding of guilt can be returned even on the testimony of single witness if he is reliable, trustworthy and appeal to the conscience of court. Even otherwise it is settled proposition that it is not quantity of evidence rather quality of evidence that matters. Hence, this court does not find any hesitation in holding that prosecution proved beyond reasonable doubt that accused Gajender Kumar Sharma got prepared counterfeit die from accused Mohd. Tariqu through PW26 Sh. Vijay Kumar Sharma and accused Mohd. Tariqu prepared counterfeit die(s) and sent it/them to Gajender Kumar Sharma through PW26 Sh. Vijay Kumar Sharma. But prosecution failed to prove that accused Gajender Kumar Sharma had got prepared counterfeit die at the instance of accused Yogender Kumar Sharma as there is no evidence in this regard.
Whether instruments of tampering Franking Machine were recovered from the house of accused Yogender Kumar Sharma?
275. It is the case of prosecution that during investigation a search was conducted at the house of accused Yogender Kumar Sharma and instruments/tools of tampering Franking Machines and other articles were recovered from his house.
276. None of the witness examined on behalf of prosecution deposed anything about any search having been conducted at the house of accused Yogender Kumar Sharma and about any recovery of any Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 136 of 197 instruments/tools of tampering Franking Machine from his house. PW58 Sh. H.S. Karmayal, the third IO, did identify the signature of Inspector Khalil Ahmad at point A on the search list Ex PW58/C (D-115). Defense has raised objection as to mode of proof of this search list. Even if said objection is over ruled testimony of PW58 will only prove signature of the Inspector Khalil Ahmad and not the contents of the document, the search and articles allegedly recovered. Further the so called articles recovered from his house were not produced in the court. No reason has been given why independent witness, if any, or Inspector Khalil Ahmad were not examined. All in all there is no evidence at all on this aspect. Hence, prosecution has failed to prove that instruments/tools capable of tampering Franking Machine were recovered from the house of Yogender Kumar Sharma.
Whether accused Zile Singh Kasana sent postal vehicle for carrying the dak/mail from Techno Plaza to rented house at 45, Gajipur, Khichripur, Delhi for storage?
277. It is the case of prosecution that accused Zile Singh Kasana had sent postal vehicle for collection of the mails from the place where M/s Abhishek Enterprises was carrying out the work of franking at Ghaziabad and carrying them to house No. 45, Gajipur, Khichripur, Delhi for storing them in the said rented house taken by accused Yogender Kumar Sharma. Although accused Zile Singh Kasana had passed away during the trial of the case and proceedings against him has abated, yet without examining the role played by deceased accused Zile Singh Kasana, it will be expedient to know whether postal vehicle had collected mails from 1035 Techno Plaza and carried them to 45, Gajipur, Khichripur, Delhi, a house taken on rent allegedly by accused Yogender Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 137 of 197 Kumar Sharma.
278. Witnesses in this regard are PW23 Sh. Aman Sharma, PW27 Sh. Sunil Pathak, PW28 Sh. Krishan Kumar Sahi and Sh. PW43 Shailender Patre who had taken turn to visit 1035, Techno Plaza the place of franking to oversee the work of franking.
279. PW23 Sh. Aman Sharma did not depose anything in this regard in his examination-in-chief but in his cross examination in response to query put to him, he deposed that at the work place of Abhishek Enterprises at Ghaziabad, the postage enveloped had been being segregated according to the cities and pin code number and thereafter bundle of 20 envelopes had been being prepared and kept in bags for their postage. He further deposed that such bags had been being carried by the vehicle of the post office for its delivery to the addressee through post. Thus, this witness had seen bags containing bundles of envelopes being carried in a vehicle of the post office. No suggestion was given to him that he had not seen such vehicle nor has his ability to identify vehicle of post office been questioned by defense.
280. PW27 Sh Sunil Pathak in his examination-in-chief deposed that after franking of the envelopes, the enveloped used to be carried by the postal department in their vehicle and after envelopes had been carried by the postal department he conveyed to Sh. Vinod Dixit over phone regarding Franking of envelopes. Defense did not question this part of his testimony even by giving a contrary suggestion to him.
281. PW28 Sh. Krishan Kumar Sahi in his examination-in-chief deposed that after the franking, the mail/reports had been put in the bags and they had been sent to some other place through the postal van. In the cross examination by Ld. PP for CBI he admitted that gunny bags containing Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 138 of 197 packets of envelopes had been loaded in a postal department red color vehicle having logo "Dak" which came at the said site, however, he only remembered that it had been Gajender Kumar Sharma who along with others had been loading the same in the vehicle but except Gajender Kumar Sharma he could not identify the said other persons. He had further admitted that in his presence during the said period about 14000 to 15000 Annual Reports of his company had been franked and dispatched and those mail bags had been taken away from the spot in postal department vehicle.
282. In cross examination by defense PW28 deposed that in four days when he supervised the work, 3 or 4 times the postal vehicle had taken the bundles of postage from the workplace of Abhishek Enterprises. He further deposed that around 8-10 thousands envelopes had been being sent in the postal van in one visit. No suggestion to him was also given that he had not seen post office van carrying the mails or he cannot differentiate in postal vehicle and other vehicle.
283. PW43 Sh. Shailender Patre in his examination-in-chief had deposed that franked letters had been being packed in bags and being sent to the post office after sealing with the paper slips. He did not describe the vehicle in which mails were being taken away. But defense made him admit that packed bags of envelopes had been sent in the red color van of the post office.
284. It can be thus seen that even defense has set up a case that packed bags of envelopes had been taken away in the red color van of the post office. From the testimony of all the four witnesses whose presence at the site of mailing has been found above proved, have deposed and corroborated each other that packed bags of envelopes had been transported from the Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 139 of 197 site of franking/mailing i.e. 1035, Techno Plaza, Meerut Road, Ghaziabad in a vehicle of Post Office but there is no evidence whether it was sent from Kausambi Post or Ghaziabad Post Office or from elsewhere. No log book of Postal Van attached to any post office has been produced or collected to show its movement for collecting of Dak from the mailing site.
285. PW37 Sh. Pratap Singh is stated to be son of Sh. Gopi Chand who, as per prosecution, had let his house No. 45, Village Gajipur, PO Khichripur, PS Kalyanpuri Delhi to accused Yogender Kumar Sharma. PW37 deposed in his examination-in-chief that in the year 2001 his father had let out the said house through one Jilay Singh at a monthly rent of Rs. 600/- but he did not remember the person to whom the house had been let out. He further deposed that the person to whom the house had been let out was present in the court and identified accused Rajiv Kumar Srivastava as such person. He further deposed that tenant had remained in the said house for about 15 days and thereafter he (witness) had got it vacated. He further deposed that tenant used to bring articles in plastic bags by a tempo and he (witness) had asked the tenant that house had been let out to him for residential purpose and not for using as a godown. He further deposed that accused had been bringing the articles in plastic like bags (kattas) but he did not know what had been being kept in the said kattas.
286. He was cross examined by Ld. PP for CBI wherein he deposed that he did not remember the exact month but the above mentioned house had been let out in the year 2001. He admitted that Sh. Bharat Singh S/o Jilay Singh had come with a person namely Y. K. Sharma. He admitted that on the recommendation of Bharat Singh and his father Jilay Singh Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 140 of 197 he had let out the house on behalf of his father to Sh. Y. K. Sharma. He also admitted that due lapse of many years he did not remember the person Y. K. Sharma out of the accused persons present in the court. He, however, could not identify said Y. K. Sharma despite having been pointed out by Ld. PP. He denied the suggestion that he had deliberately not identified the accused Y. K. Sharma.
287. In cross examination he deposed that his above mentioned house had been at a distance from his residential house and he had seen the tenant only once while bringing the bags/kattas. In cross examination by counsel for accused Mohammad Tarique and Zile Singh Kasana he denied the suggestion that his father had asked the property dealer to get let out the above mentioned house. He did not know if son of Zile Singh Kasana had also been working as a property dealer. He further deposed that negotiation about the tenancy had been done by his father and not by him. He further deposed that he did not know whom the house had been let out. He further deposed that on one night he had seen the tenant and 3-4 other persons had been unloading the bags/kattas from tempo and when he had inquired, the tenant had told him that there had been No Entry of the traffic and therefore they were putting the kattas in the room. He did not know the number of tempo.
288. There is no other witness who had seen any of the accused persons unloading the dak brought from 1035 Techno Plaza or had seen Yogender Kumar Sharma taking the premise No. 45 Gajipur on rent. Testimony of PW37 is wavering. First he deposed his father had let out the house, then in cross examination by Ld. PP he deposed that it was he who had let out the property. Again in the cross examination by defense he deposed that the terms of tenancy had been settled by his father and Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 141 of 197 not by him. He also wavered in identifying the tenant. He on his own identified accused Rajiv Kumar Srivastava as his tenant but even after pinpointing of Yogender Kumar Sharma as his tenant, he could not recognize him. He might have seen his tenant unloading bags/Kattas but it nowhere points out that it was the Dak from Techno Plaza or the vehicle was of Postal Department. Thus, it could be concluded that prosecution has failed to prove that franked dak/mails from Techno Plaza were taken away for storage to House No. 45, Gajipur, Khichripur, Delhi allegedly taken on rent by accused Yogender Kumar Sharma.
289. As discussed above, prosecution, however, has successfully proved that franked dak/mails in bags were taken away in a vehicle of Postal Department from the 1035, Techno Plaza, Ghaziabad but failed to prove that postal vehicle was sent from Post Office Kausambi.
Whether franked mails were sent to their respective destination through Kausambi Post Office in connivance with accused Zile Singh Kasana?
290. It is the case of the prosecution that envelopes containing Annual Reports of Escort Ltd and franked with counterfeit dies were sent to respective addressees through the Kausambi Post Office. PW7 Sh. Ramesh Chander Sharma had taken over charge as Sub-Post Master, Kausambi from accused Zile Singh Kasana. On seeing documents D-78 (18 in numbers) Ex PW7/5 to Ex PW7/22, he deposed that they were all mail lists of Post Office Kausambi which were prepared in three copies one of which was retained by the Sub-Post Office and two copies of the mail lists along with the bags containing the Dak were sent to the CSO i.e. City Sorting Office. He further deposed that Ex PW7/5 to Ex PW7/22 were the mail lists to the City Sorting Office as was so Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 142 of 197 mentioned on each of them at points 'A' which was then put in red on each of them. He further deposed that Ex PW7/5 to Ex PW7/22 were the mail lists prepared in the hand writing of the accused Zile Singh Kasana which he recognized. He further deposed that he identified Ex PW7/5 to Ex PW7/22 all having been signed by the accused Zile Singh Kasana as he had seen the signatures on the order book while taking over charge as Sub-Post Master Kausambi Post Office. He identified his own signature on receipt Memo Ex PW7/23 (D-77) deposing that signature at point 'A' thereon with the date at point 'B' thereon on the said document were in his own hand.
291. On further seeing Ex PW7/23, he deposed that the mail lists of the dates mentioned therein had been taken by the CBI personnel but he did not know who handed over the mail lists to the CBI personnel. He further deposed that CBI personnel had come to the Kausambi Post Office and had seen the mail lists but he did not recall if CBI personnel had taken the photocopies of the mail lists with them or not. In cross examination by Ld. PP for CBI he deposed that he did not recall whether or not vide Ex PW7/2 he had handed over the original mail lists mentioned therein to the CBI personnel. He further deposed that since his signature were there on the receipt memo Ex PW7/23 he must have handed over the documents mentioned therein to the CBI personnel.
292. In the cross examination by Ld. PP for CBI, PW7 admitted that he had taken over charge from Zile Singh Kasana on 7.12.2001 and a joining report was also submitted at the time of taking over charge as per Superintendent's Memo. On further sustained cross examination by Ld. PP he finally deposed that handwriting on Ex PW7/5 to Ex PW7/22 was that of Zile Singh Kasana and denied the suggestion that he had not Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 143 of 197 deliberately identified his hand writing.
293. During cross examination by defense, in response to specific court query he deposed that he did not recall with certainty but as far as he remembered CBI personnel had asked him for the photocopies of the mail lists and could not recall whether he handed over the original mail lists Ex PW7/5 to Ex PW7/22 or the photocopies thereof to the CBI. He further deposed that first copy of the mail lists remained at the Sub-Post Office and the carbon copies of the same were sent to the City Sorting Office and to the Head Office. He further deposed that on the first copy of the mail lists retained at the Sub-Post Office, the number of mail bags handed over to the person with the mail van i.e. the mail driver were mentioned. He further deposed that no information used to be received from the City Sorting Office or the Head Office of the mail bags delivered but if there was deficiency in the mail bags delivered at the City Sorting and Head Office then they used to receive information from City Sorting Office or Head Office. He further deposed that on the carbon copies of mail lists also number of bags delivered used to be mentioned. On seeing Ex PW7/5 to Ex PW7/22 he deposed that name of driver of the mail van, signatures of the driver of the mail van and number of the mail van were not mentioned on any of them. He further deposed that one mail bag weighed 10 Kgs approximately. He further deposed that he had not studied the rules of the Post Office but ordinarily a parcel weighing 20 Kgs and a mail bag weighing from 10 Kgs to 20 Kgs could be sent.
294. PW7 further deposed that Ex PW7/23 bore his signatures but he could not confirm where Ex PW7/23 had been prepared. He further deposed that same could have been prepared at the Sub-Post Office and could Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 144 of 197 have been prepared at the same time when the CBI had taken ledger sheets. No suggestion was given to him that Ex PW7/5 to Ex PW7/22 were not the mail lists of Kausambi Post Office for the concerned dates. It was also not suggested that Ex PW7/5/to Ex PW7/22 were not in the handwriting of accused Zile Singh Kasana and did not bear signature of Zile Sigh Kasana.
295. PW57 Roshan Lal Yadav, the first Investigating Officer, in his examination-in-chief deposed that during investigation he had collected/seized documents vide seizure/receipt memos and identified D-79 dt 3.06/2002 Ex PW57/23 as one of them vide which he had seized documents D-80 (total 19 pages) Ex PW57/24 (Colly). Perusal of PW57/24 (Colly) shows that they are the carbon copies of Ex PW7/5 to Ex PW7/22 with one document less.
296. In cross examination he deposed that as per D-77 Ex PW7/23 he had seized a mail lists from Kausambi Post Office and similarly as per D-79 Ex PW57/23 carbon copy of mail list from Kausambi Post Officer had also been seized. He deposed that D-77 and D-79 showed how many baggages of postage had been sent from Kausambi Post Office to CSO, Ghaziabad on day to day basis. He denied the suggestion that these documents did not mention any detail of bulk mail. He volunteered that the number of bags shown against particular mail itself reflected the bulk mail. He further deposed that from D-77 and D-79 it could not be said if these postages were related to a particular customer but during investigation it had been revealed that in the dates mentioned in these documents the number of baggages sent from Kausambi Post Office had been substantially increased in comparison to previous trend. He however did not remember if any document showing previous trend of Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 145 of 197 the period i.e. 29.08.2001 to 19.09.2001 in respect of details of postage from Kausambi Post Office to CSO, Ghaziabad had been seized by him. He further deposed that in the baggage of postage mentioned in D-77 and D-79 both types of postages i.e. postages with stamps or the postages by franking machine had been sent and in this regard no further investigation had been made to identify the exact number of postages sent between 29.08.2001 to 19.09.2001. He admitted that in respect of post by franking a register was being maintained in the concerned post office wherein relevant entries had been being made to reflect how many post by franking had been sent by a particular customer having license of a franking machine and in the present case the said register pertaining to M/s Abhishek Enterprises had been seized which is on record as D-86 Ex PW11/D and as per the register the registered post office of M/s Abhishek Enterprises was CSO-I and CSO-II, Delhi and not Ghaziabad and on relevant dates no post by way of franking had been sent by the said firm. He admitted that he had seized only franking dak register Ex PW11/D of M/s Abhishek Enterprises and did not seize any other such register from any other post office, Ghaziabad. He further deposed that he had not seized any document/register/record from head post office Ghaziabad or CSO, Ghaziabad showing the details of bulk mailing between periods from 29.08.2001 to 19.09.2001. He admitted that seizure memo D-77 and D-79 were related to the documents in respect of sending of postage from post office Kausambi to CSO, Ghaziabad and not related to the postage sent to Head Post Office, Ghaziabad.
297. From the analysis of the testimony of PW7 it particularly stands established that Ex PW7/5 to Ex PW7/22 are the mail lists of Kausambi Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 146 of 197 Post Office between 29.08.2001 and 19.09.2001 and in the hand of accused Zile Singh Kasana who was the then Sub Post Master of Kausambi Post Office. From the testimony of PW57 it is clear that prosecution wants to prove that increase in number of mails bags being sent to CSO shows that mails of Escort Ltd. franked by M/s Abhishek Enterprises was sent from Kausambi Post Office.
298. Perusal of mail lists Ex PW7/5 to Ex PW7/22 and Ex PW57/24 (Colly) shows that 1 mail bag (MB) was sent to CSO on 29.0.2001. On 30.08.2001 1 MB to CSO, 1 MB to Bhilwara, 2 MB to NDTD, 1 MB to Bombay RMS and I MB to Chandigarh RMS. On 31.08.2001 1MB to CSO, 1MB to Calcutta RMS, 1 MB to Jaipur RMS, 1 MB to Meerut RMS and 1MB to H.P. RMS CSO. On 03.09.2001 1 MB to CSO, 3 MB to N.D. PSO, 2 MB to Delhi RMS. On 4.09.2001 47 mail bags were sent of which 1 MB to CSO, 3 MB to Delhi RMS, 15 MB to N.D. PSO, 7 MB to Bombay TD, 4 MB to Saharanpur RMS, 3 MB to Lucknow RMS, 3 MB to Ahmadabad RMS, 1 MB to not legible RMS, 1MB to Calcutta RMS, 1 MB to Hyderabad, 1 MB to not legible RMS, 2 MB to Ambala RMS, 2 MB Bangalore RMS, 1 MB not legible RMS and 2MB to Bhuwaneshwar RMS. On 5/09/2001 1 MB was sent to CSO and 6 MB were sent to Delhi RMS. On 06.09.2001 14 items were sent out of which 1 MB was sent to CSO, 4 ext or edt ( not clear whether it is ext or edt or what does it mean) to Delhi RMS, 4 ext or edt to Bhuswal RMS, 1 ext or edt to PT Chennai, 1 ext or edt to Ahmadabad RMS, 1 ext or edt to Ambala RMS, 1 ext or edt to Hyderabad TD and 1 ext or edt to Asansol (W.B).
299. On 08.09.2001 19 items were sent out of which 1 MB to CSO, 7 ext or edt to Delhi RMS TD, 2 ext or edt to HR Stg Delhi, 4 ext or edt to Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 147 of 197 Sahranpur RMS, 2 ext or edt to Lucknow RMS, 1 ext or edt to Ludhiana RMS, 1 ext or edt to Bombay RMS and 1 ext or edt to Bandikini RMS. On 10.09.2001 20 items were sent of which 1 MB to CSO, 1 ext or edt to Jammu RMS, 8 ext or edt to Delhi RMS TD, 1 ext or edt to Bhuswal RMS, 3 ext or edt to Hyderabad RMS, 4 ext or edt to Lucknow RMS, 1 ext or edt to Ludhiana RMS and 1 ext or edt to HR Stg Delhi RMS. On 11.09.2001 32 items were sent out of which 1 MB to CSO, 2 ext or edt to Sharanpur RMS, 4 ext or edt to HR Stg Delhi, 14 ext or edt to Delhi RMS TD and 11 ext or edt to ND RMS. On 12.09.2001 59 items were sent of which 1 MB was sent to CSO, 1 PB was sent to CSO, 2 ext or edt to Jaipur RMS, 1 ext or edt to Calcutta PSo, 1 ext or edt to Calcutta TD, 1 ext or edt to Lucknow RMS, 1 ext or edt to Chennai PSo, 2 ext or edt to EZB CSO, 15 ext or edt to Delhi RMS TD, 21 ext or edt to ND RMS, 7 ext or edt to Lucknow RMS, 1 ext or edt to Bombay RMS, 1 ext or edt to Agra RMS, 2 ext or edt to Ahmadabad RMS, 1 ext or edt to Saharanpur RMS, and 1 ext or edt to Varanasi RMS.
300. On 13.09.2001, 81 items were sent of which 1 MB sent to CSO, 1 ext or edt to CSO, 1 ext or edt to Cochin RMS, 15 ext or edt to Bombay RMS, 6 ext or edt to Calcutta RMS, 7 ext or edt to H R Stg Delhi, 10 ext or edt to Lucknow RMS, 12 ext or edt to Ahmadabad RMS, 9 ext or edt to Jaipur RMS, 11 ext or edt to Delhi RMS TD, 2 ext or edt to PT Chennai, 2 ext or edt to not legible RMS and 3 ext or edt to Ludhiana RMS. On 14.09.2001 1MB was sent to CSO, 1 ext or edt to CSO, 1 ext or edt to ND RMS, 1 ext or edt to Jaipur RMS and 1 ext or edt to Calcutta RMS. On 17.09.20001 1MB was sent to CSO and 3 ext or edt to Delhi RMS TD. No mail bag was sent on 16/09/2001, 18/09/2001 and on 19/09/2001.
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301. PW7 in his cross examination had deposed that mail bags containing 10 to 20 Kgs could be sent. Ex PW7/5 to Ex PW7/22 do not mention the weight of each mail bag nor has anyone explained the meaning of "ext or edt' written on mail lists. The Annual Report has not come before the court. PW23 Sh. Aman Sharma in his cross examination had deposed that weight of each envelopes ranged between 350 to 400 gms. This testimony of PW23 was not challenged by defense. So the weight of 88171 envelopes would be around 30,859.85 Kg if calculated at the rate of 350 gm per envelopes. If each mail bag could carry 10 kg then to carry 30,859.5 kg of mails at least about 3086 mail bags would have been required and if calculated at 20 kg per mail bags then at least about 1543 mail bags would have been required. If all the items in mail lists Ex PW7/5 to Ex PW7/22 are considered as mail bags then all bags together would not make more than 300 to 400 mail bags. Therefore, it is difficult to conclude that envelopes were posted through Kausambi Post Office. All in all there is no sufficient evidence to prove that 88,171 envelopes of Annual Report franked by M/s Abhishek Enterprises were piped into mailing service through Kausambi Post Office. Hence, prosecution has failed in this regard.
Whether letter dt. 04.09.2001 Ex. PW22/A-12 addressed to Escort Ltd. purported to be written by Sub Post Master, Sub Post Office Ghaziabad confirming receipt of mails at post office was in fact written/forged by accused Mahender Kumar? Similarly, whether letter dt. 23/08/2001 Ex. PW22/A-2 addressed to Escort Ltd. purported to be written by Sub Post Master, Sub Post Office Ghaziabad thereby according permission for mailing from Sub-Post Office, Ghaziabad was in fact written/forged by accused Mahender Kumar?
302. It is the case of the prosecution that letter dt. 23/08/2001 purported to Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 149 of 197 have been written by Sub Post Master, Ghaziabad whereby permission was accorded to Escort Ltd. for dispatching the mails from the post office was in fact a forged letter and was forged by accused Mahender Singh. Similarly, it is the case of the prosecution that letter dt. 04.09.2001 purported to have been written by Dy. Post Master, Ghaziabad whereby intimating Escort Ltd. about the receipt of 88,171 mails for dispatch, was in fact forged letter and was forged by accused Mahender Kumar.
303. Both these letters are forged are born out from the fact that it has come in evidence that there was no Sub Post Office called "Sub-Post Office, Ghaziabad". It is alleged that both these letters were forged by accused Mahender Kumar and evidence in this regard is report of handwriting expert from CFSL. But it has already been noted above that report of handwriting expert cannot be taken into consideration as prosecution has failed to prove the specimen signatures of concerned accused persons. Apart from the report of handwriting expert, there is no evidence to suggest that above both letters Ex PW22/A-2 and Ex PW22//A-12 were forged by accused Mahender Singh. Hence, prosecution has failed in this regard.
Whether accused Zile Singh withdrew an amount of Rs 2,00,500/- from account No. 300118 forging the signature of Yogender Kumar Sharma? Whether accused Zile Singh withdrew an amount of Rs 51,000/- from account No. 300122 forging the signature of Umesh Kumar Sharma?
304. It is the case of the prosecution that accused Zile Singh withdrew an amount of Rs. 2,00,500/- on 4/12/2001 from account No. 300118 by forging the signature of accused Yogender Kumar Sharma and similarly he withdrew an amount of Rs 50,000/- on 4/12/2001 from account No. Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 150 of 197 300122 by forging the signature of accused Umesh Kumar Singh.
305. It has been found above that prosecution has failed to prove that Yogender Kumar Singh had opened account No. 300118 jointly with accused Mahender Kumar and prosecution has also failed to prove that accused Umesh Kumar Singh and accused Rajiv Kumar Srivastava had jointly opened account No. 300122. Accused Zile Singh has died during the pendency of the present proceedings and proceedings against him had abated. Hence, this question is hereby left undecided.
Whether accused Yogender Kumar Sharma had deposited Rs. 1,22,000/- vide receipt No. 20 dt. 8/12/2001, Rs. 20,000/- vide receipt No. 21 dt. 10/12/2001 and Rs. 1,50,000/- vide receipt No. 23 dt. 11/12/2001 in Unclaimed Receipt Account with Post Office Kausambi?
Whether accused Umesh Kumar Singh had deposited Rs. 50,000/- vide receipt No. 24 dt. 11/12/2001 in Unclaimed Receipt Account with Post Office Kausambi?
306. It is the case of the prosecution that accused Yogender Kumar Sharma had deposited Rs. 1,22,000/- vide receipt No. 20 dt. 8/12/2001, Rs. 20,000/- vide receipt No. 21 dt. 10/12/2001 and Rs. 1,50,000/- vide receipt No. 23 dt. 11/12/2001 in Unclaimed Receipt Account with Post Office Kausambi. It is further the case of prosecution that similarly Umesh Kumar Singh had deposited Rs. 50,000/- vide receipt No. 24 dt. 11/12/2001 in Unclaimed Receipt Account with Post Office Kausambi.
307. There is absolutely no evidence on this point. None of the witness spoke about these deposits nor has any documentary evidence been proved on record in this regard. Accused Yogender Kumar Sharma and Umesh Kumar Singh had already denied having deposited any amount in Unclaimed Receipt Account with Kausambi Post Office. Hence, it is Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 151 of 197 held that prosecution has failed to prove that accused Yogender Kumar Sharma and accused Umesh Kumar Singh have respectively deposited aforesaid amount in the Unclaimed Receipt Account of Kausambi Post Office.
Whether Franking Machine PB-5507 got purchased by accused Gajender Kumar Sharma for his firm M/s GKS Service and for which he could not get franking license from Faridabad Head Post office, was used for franking envelopes containing Annual Report of 2000-01 of Escort Ltd.?
308. It is the case of the prosecution that forged franking on the envelopes containing Annual Reports of Escort Ltd for the year 2000-01, using counterfeit dies were done with the Franking Machine bearing meter unit PB-5507 (of Pitney Bowes make) lying unutilized with accused Gajender Kumar Sharma following his failure to get franking license for his firm M/s G.K.S. Services from Head Post Office, Faridabad.
309. It has been found above proved that accused Dinesh Sharma was proprietor of M/s Abhishek Enterprises and had applied for franking license which was granted by SSPO Chanakyapuri, New Delhi in respect of Franking Machine bearing meter No. PB-5235 Ex MO-1. It has been found above proved that said Meter unit Ex. MO-1 was seized by postal authorities on 6/12/2001 vide report Ex PW2/U and later on handed over to CBI on 05.06.2002 vide receipt memo dt. 05.06.2002. This Franking Meter unit was produced in the court and was exhibited as Ex. MO-1. There are lots of evidence qua different aspect of this Franking Machine unit and said evidence does not require any discussion over here as it is not the case of the prosecution that this Franking Machine bearing No. PB-5235 was used in forged franking of mails of the Escort Ltd. Case of the prosecution is that Franking Meter Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 152 of 197 Unit bearing No. PB-5507 was used in getting forged franking impression with the help of counterfeit round town die leaving impression as "VMS-UP-23/0047/99, Ghaziabad 245201" and rectangular value die leaving impression interalia "PB-4235" on envelopes Ex PW22/A20 (463 in numbers).
310. It is the case of the prosecution that accused Gajender Kumar Sharma was arrested on 20.03.2002 and he made a disclosure statement following which a Franking Machine having the word "Pitney Bowes Killburn" printed on it was recovered at the instance of the accused Gajender Kumar Sharma from his business place 92A, Prateek Market, Munirka New Delhi. If his disclosure statement Ex PW32/A is believed (without going into question whether it has been proved or not and without going into question as to what extent same can be taken into consideration ) then it would mean that the franking machine unit which he got recovered from his place was used for forged franking of mails but case of the prosecution as borne out from chargesheet, is that Franking Machine bearing meter unit No. PB-5507 was used for forging the franking of mails. Hence, prosecution has to prove firstly that a Franking Machine was recovered at the instance of the accused Gajender Kumar Sharma, secondly that the said Franking Machine was the one which he had purchased for his firm M/s G.K.S. Services i.e Franking Machine bearing meter No. PB-5507 and thirdly that the said Franking Machine was used for forged franking of envelopes containing Annual Reports of Escort Ltd. for the year 2000-01.
311. PW32 Sh. S. V. Sadavarte on 20.03.2002 was posted as Assistant Superintendent of Post Offices at New Delhi. He in his examination-in- chief deposed that on 20.03.2002 he along with CBI team had Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 153 of 197 participated in the search of residence of Gajender Kumar Sharma and certain documents were seized from the Munirka office. He further deposed that he had seen disclosure memo dt. 20.03.2002 Ex PW32/A (D-4) of accused Gajender Kumar Sharma running into two pages duly signed by accused Gajender Kumar Sharma, bearing his own signature at point A and that of accused Gajender Kumar Sharma at point B on each page thereof. He further deposed that Memorandum dt 20.03.2002 Ex PW32/A-1 bore his signature at point A. He further deposed that he had seen recovery memo dt. 20.03.2002 (D-4) Ex PW32/A2 which bore his signature at points A. He further deposed that accused Gajender Kumar Sharma was arrested in his presence. He further deposed that he had seen the Operation Memorandum of franking machine meter dt. 1.11.2002 D-112 seized from accused Gajender Kumar Sharma from Munirka. He identified his signature on Operation memorandum which was exhibited as Ex PW32/A-3.
312. PW32 further deposed that he had seen memorandum dt. 05.06.202 (D-
88) which was signed by him and other witnesses on 05.06.2002. He identified his signature at point A on the same which is Ex PW32/A-4. He further deposed that he had seen the facsimile of seal impression used for sealing the meter unit dt. 05.06.2002 enclosed with the memorandum D-88 Ex PW32/A-5. He further deposed that the facsimile of seal impressions were appearing at point X and bore his signature at point A. He further deposed he had seen another memorandum dt. 05.06.2002 (D-89) which bore his signature at point A on the said memorandum and same was Ex PW32/A-6.
313. He further deposed that he had seen the specimen die impressions of franking machine meter unit No. PB-5235 make Pitney Bowes Killburn Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 154 of 197 seized by SSPO, Chanakyapuri New Delhi pertaining to M/s Abhishek Enterprises running into 15 pages which bore his signature at points B on each page thereof. The said specimen die impression already stood exhibited as Ex PW11/E. He continued that the specimen seal impressions were appearing at points X on each page thereof. He further deposed that he had seen the specimen die impression of franking die fitted in franking machine meter unit make Pitney Bowes Killburn recovered from 92A, Prateek Market, Munirka, New Delhi i.e. premise taken on rent by accused Gajender Kumar Sharma, running into 17 pages bearing his (witness) signature at point A on each pages thereof. The said die impressions were collectively exhibited as PW32/A-7 and specimen seal impression were appearing at points B on each page thereof.
314. He further deposed that arrest of Gajender Kumar Sharma had been made in his presence and arrest memo Ex PW32/A-8 had been prepared in his presence bearing his signature at point A. He further deposed that he had seen personal search memo dt. 20.03.2002 Ex PW32/A-9 which bore his signature at point A. He further deposed that he had seen the franking machine containing franking meter Ex MO-1. He deposed that same franking machine had been seized in his presence.
315. He further deposed that specimen impressions of franking die fitted in the franking machine meter unit No. PB-5235 seized by SSPO, Chanakyapuri had been taken in his presence on all the sheets of D-108 which already stood exhibited as Ex PW11/E. He deposed that franking die impressions were from S-148 to S-177 on the aforesaid exhibits. He further deposed that the specimen die impression fitted in the franking machine meter unit which was recovered from 92A, Prateek Market, Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 155 of 197 Munirka Delhi had been taken in his presence on the sheets and the same were marked as Q-106 to Q-139 at point B on D-11 Ex PW32/A-7.
316. He further deposed in his examination-in-chief that in or around November 2002 he had gone to CBI office, Khan Market New Delhi on instruction of his senior officer and along with the team of CBI officials he had visited the place i.e. office in Munirka and residence in Andriana of one Dinesh Sharma. He further deposed that in Munirka office they had seen a franking machine in the office of Dinesh Sharma and said franking machine was found tampered with. He continued to depose that meter of said franking machine was tampered and the value die had been in broken condition and seal of the company had been in broken condition in the said franking machine. He further deposed that said machine had been seized from Munirka Office and had been taken to CBI office either at Khan Market or CGO complex. He deposed that seizure memo had been prepared which had been signed by him as well and he could identify if seizure memo was shown to him. He further deposed that impression of the above mentioned franking machine had been taken and said impression had already been exhibited as Ex PW11/E. He further deposed that when sealed franking had been seized from Munirka Office, it had been sealed in a cloth bag which had been signed by him which he could identify. Upon being shown a sealed cloth pullinda bearing seal of CBI, he identified his signature on it at point A and the cloth pullinda/bag was exhibited as PW32/A-8. He further deposed that he could identify the franking machine by its number if shown to him. Sealed pullinda was opened and franking machine was taken out. On seeing the same he deposed that it had been the same machine which was seized from Munirka office bearing No. PC-A91- Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 156 of 197 720 serial number 5525410 make Pitney Bowes. He further deposed that company seal, meter and value die of said machine was broken/damaged. This machine was exhibited as Ex PW32/A-9.
317. This court finds problem with the way testimony of this witness has been recorded and that's why almost his entire examination-in-chief has been quoted herein in indirect speech. Most of the time he did not speak about the act that took place in his presence or about the acts that were taken by him or other member of the team etc. leading to recovery or preparation of documents. Most of the time he spoke about the documents and identified his signature on those documents without explaining fact/incident preceding the preparation/execution of the said documents. For example he deposed, "I have seen disclosure memo dated 20.03.2002 of accused Gajender Kumar Sharma running into two pages duly signed by accused Gajender Kumar Sharma. My signatures are appearing at point A and that of accused Gajender Kumar Sharma at point B on each pages thereof. The disclosure memo (D-4) is Ex PW32/A. Memorandum dated 20.03.2002 bears my signature at point A and the same is Ex PW32/A1". It is not clear whether he had seen the disclosure memo dt. 20.03.2002 on the day his chief examination was recorded or on some other day. He did not depose anything about whether the statement as recored was spoken by the accused in his presence or the statement was already recorded and he simply signed it. He did not speak circumstances leading to disclosure by the accused.
318. Similarly, he deposed, "I have seen the operation memorandum of franking machine meter D-112 dt. 01.11.2002 seized from accused Gajender Kumar Sharma from Munirka. The said operation memorandum bears my signature at point A which is now Ex PW32/A-
Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 157 of 197 3". Again not clear whether he had seen the memo on the day his chief examination was recorded or some other day. Rest part of his above quoted statement is contents of the documents. Fault is not with the witness but with the prosecution which show poor way of extracting information during chief examination. In fact prosecution should have gotten him speak that on one particular day he was called at such-n-such place by CBI where franking machine seized from such-n-such place were operated in his presence and others and impression of die was taken taking all precaution and thereafter proceedings were recorded in operation memo duly signed by persons present there. No doubt contents of the documents need not be spoken verbatim but something more has to be spoken than merely identifying the document.
319. Be that as it may, mere perusal of his examination-in-chief brings out certain major contradiction. Initially as per him specimen die impressions Ex PW11/E running into 15 pages were of franking machine bearing meter No. PB-5235 make Pitney Bowes Kilburn seized by SSPO, Chanakyapuri, New Delhi pertaining to M/s Abhishek and specimen die impression Ex PW32/A-7 running into 17 pages were of franking machine make Pitney Bowes Killburn recovered from 92A, Prateek Market, Munirka, New Delhi. He specifically testified in his testimony recorded on 31.01.2011 that Franking Machine containing franking meter which was collectively exhibited as Ex. MO-1 was seized in his presence. But in the testimony of PW2 Rajbir Singh it has already come in evidence that Franking Machine Ex MO-1 was seized by postal authorities on 6.12.2001 vide memo Ex PW2/U and so is the case of the prosecution as well. Therefore, Ex MO-1 cannot be the Franking Machine which would have been seized in the presence of Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 158 of 197 PW32. Though prosecution may argue that on 05.06.2002 Franking Machine Ex MO-1 was handed over to CBI by PW11 Padam Singh in the presence of this witness, it may be true but this should have been spoken by the witness himself and not by the prosecution. Further, there is difference between seizure and handing over.
320. Further, in his testimony recorded on 06.03.2013 he deposed that in or around November 2002 he along with team of CBI officials visited Munirka and residence in Nandnagri of one Dinesh Sharma and in Munirka office they had seen a franking Machine which has all tampering as noted in his testimony above. Said Machine was seized and taken to CBI office at Khan Market or CGO complex where the impressions of the above mentioned franking machine was taken which impression were already Ex PW11/E. How is it possible to take die impression on 05.06.2002 of the franking machine seized in or around November 2002? Further, even if he is said to have forgotten the date of seizure and 20.03.2002 is considered the date of seizure then how the machine came to have number as "PC-A91-720 serial number 5525410"
when recovery memo dt. 20.03.2002 Ex PW32/A-2 is silent about any number found printed/inscribed on the Franking Machine seized from 92A, Prateek Market, Munirka, Delhi. Recovery memo Ex PW32/A-2 talks of Franking Machine having words "Pitney Bowes Killburn" only. If the seized machine had any number as clearly visible to him in the court, then it would have been visible on the day of its seizure also but why then it was not so mentioned.
321. Further he deposed in the court that franking machine was found tampered with as noted in detail above but no such defect or tampering was noted in the recovery memo Ex PW32/A-2 except about a broken Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 159 of 197 lead seal found in the plastic box. Further, it is admitted case of the prosecution that die impressions of Franking Machine Ex PW32/A-9 seized from Munirka Office of accused Gajender Kumar Sharma, were taken on 05.06.2002 vide memo Ex PW32/A-4. Even in the said memo there is no mention of any tampering found in the franking machine. Only in the operation Memo dt. 01/11/2002 Ex PW32/A-3 certain tampering noticed had been mentioned. It is strange that on first two occasions when Franking Machine was seen by witnesses no tampering in the machine was noticed and machine was in fact successfully operated on 05.06.2002 to take die impressions. In fact, operation memo Ex PW32/A-3 specifically noted that "The meter Unit has no machine No. which has been erased" then how the meter in the court came to have number "PC-A91-720 serial number 5525410" printed/inscribed on the machine or how the witness came to see it in the court only.
322. In any case his testimony does not help prosecution in establishing that Franking Machine Ex PW32/A-9 was the same very machine which accused Gajender Kumar Sharma had purchased for obtaining franking license from Head Post Office nor is his testimony helpful in establishing that Ex PW32/A-9 was the franking machine used for franking the envelopes containing Annual Reports of Escort for the year 2000-01 even if it is accepted that Ex PW32/A-9 was tampered with.
323. PW33 Sh. Ramesh Chand Meena was posted as Inspector in Postal Department at Faridabad. He identified the file which he had handed over to CBI vide receipt Memo dt. 21.11.2002 Ex PW33/A (D-117). The file which he handed over was exhibited as Ex PW33/A1 and said file contain papers relating to Franking License applied by M/s G.K.S. Services, B/612, Dabua Colony, Faridabad, Haryana. It has already been Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 160 of 197 held herein before that PW33 Sh. Ramesh Chand can be said to have proved only the handing over of the file and not the documents of the said file Ex PW33/A-1. The number "PC-A91-720 serial number 5525410" is found mentioned in one of the application written in red ink which is otherwise in blue ink in the hand of applicant who in his hand described the machine as "Pitney Bowes A-900 PB5507 00-99-99"
but it appears verifying officer has in his own handwriting described it as "5525410/PC-A91720 Pitney Bowes 00-99.99". In no other document of the Kilburn or of any document in the said file, Franking Machine had been described/identified as "5525410/PC-A91720 Pitney Bowes 00-99.99". In all other document in the said file franking machine has been described/identified as "Pitney Bowes A-900 PB- 5507". PW34 Sh. Gursharan Singh, Regional Accounts Manager of M/s Killburn at relevant time, had handed over documents pertaining to purchase of electronic Franking Machine Unit No. PB-5235 and PB- 5507. Even in his documents there is no mention of "5525410/PC- A91720 Pitney Bowes 00-99.99" in respect of meter unit No. PB-5507. Hence, given the doubt shrouding the mentioning of number by the witness in his testimony, given the identification discrepancy of the machine and given the fact that no one was examined to prove the documents (part of file Ex PW33/A1) which described the machine "5525410/PC-A91720 Pitney Bowes 00-99.99", it cannot be held that franking machine Ex PW32/A-9 was the same franking machine which bore meter unit No. PB-5507 or which was purchased by accused Gajender Kumar Sharma in respect of which he had unsuccessfully applied before Head Post Office, Faridabad for franking license.
324. Testimony of PW36 Sh. V. K. Luthra who had worked both with Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 161 of 197 Killburn and Pitney Bowes, is also not helpful in this regard. He interalia sought to corroborate the testimony of PW34 Sh. Gursharan Singh so far as it related to sale of franking machines bearing Unit No. PB-5235 and PB-5507 to M/s Abhishek Enterprises and M/s G. K. S. Services respectively. Further PW36 V. K. Luthra is also witness to Operation Memorandum dt. 1.11.2002 Ex PW32/A-3 and he identified his signature thereon at point B. He further deposed that while operating the aforesaid Franking Meter it had been found that the die fixed in the said meter was affixed in manipulated manner. He further deposed that meter had been used and die had been tampered with and no seal of post office was there. As per him meter unit was also tampered. He further deposed that he had been called by the CBI officials 3-4 times and had been shown franking machine and one briefcase containing tools of franking machine i.e. dies, sealing wax etc. He further deposed that after seeing the Franking Machine and the articles in the briefcase he had told the officials that some dies had been tampered. He further deposed that he had seen the franking machine on that day in the court which already stood collectively exhibited as Ex MO-1 and stated that same was the same franking machine which was shown to him by the CBI officials in the CBI office. He further deposed that after connecting the machine with electricity, meter reading had been shown and recorded and meter of the franking machine had shown three readings i.e. postage used, postage unused and total articles. He further deposed that reading of the meter was shown in the second para of the operation memorandum Ex PW32/A-3 (D-112). He further said that used reading was shown as Rs. 5,06,204/-, balance reading as Rs. 4,93,795/- and impressions Rs. 3,99,709/-.
Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 162 of 197
325. Thus, as per him, operation memorandum Ex. PW32/A-3, meter reading and other defects noted therein were in respect of franking machine Ex MO-1 but memorandum Ex PW32/A-3 itself say that it was in respect of machine seized from accused Gajender Kumar Sharma from Munirka. Machine seized from Munirka Office has been exhibited as Ex PW32/A- 9 and Franking Machine Ex MO-1 was seized by Postal Authorities on 6.12.2001. It cannot be said there could have been typographical error as during his cross examination franking Meter Unit Ex PW32/A-9 was never called in the court. With so many blunders in identification it is difficult to hold that Franking Machine meter unit Ex PW32/A-9 even had any sign of tampering, let alone holding that it was the same machine which was used in forged franking of mails of Escort Ltd.
326. In fact there is neither any ocular evidence nor circumstantial evidence nor any scientific evidence to connect the franking impressions on envelopes Ex PW22/A-20 (463 in numbers) with any of the machines Ex MO-1 and Ex PW32/A-9. Further even if it is assumed that Franking Machine Ex PW32/A-9 had any tampering then also there is no evidence to connect the franking impressions on envelopes Ex PW22/A- 20 with this franking machine. Hence, prosecution has grossly failed to prove that franking impressions on the envelopes Ex PW22/A-20 were caused by Franking Machine bearing meter unit No. PB-5507 purchased by accused Gajender Kumar Sharma for his firm M/s G. K. S. Service and in respect which he had remained unsuccessful in obtaining franking license from Head Office Faridabad.
Was there sufficient unexplained delay in the registration of the present FIR that prosecution's case cannot be trusted?
327. It has been vehemently contended that there was unexplained long delay Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 163 of 197 in the registration of present FIR and therefore it has been contended that possibility cannot be ruled out that an effort was underway to shield the real culprits and manipulate evidence to embroil innocent persons. Discrepancy as noted in the evidence above like finding alleged tampering in the Franking Machines after twice successful operation etc. have been cited to drive home the point.
328. Suffice it to say that the alleged delay in the present circumstances of the case is of no help to defense. It has come on record that beginning of detection of leakage itself began on 14.09.2001 when a team of postal officials (PW3, PW30and PW40) happened to come across unregistered undelivered envelope containing Annual Report of Escorts Ltd. Thereafter, in depth steps were undertaken to be sure of foul play or leakage of revenue and when these officials became sure of foul play or leakage of revenue recommended to Senior Authorities to get the matter investigated by a competent agency so as to find and punish the guilty after which only Senior Official PW1 Sh. Vineet Mathur vide his letter dt 06.02.2002 Ex PW1/A requested CBI for the registration of case and investigation.
329. CBI after having satisfied that contents of letter dt 06.02.2002 disclosed commission of cognizable offense registered the FIR on 19.03.2002. Though CBI has not explained as to why it took more than one month for the registration of FIR but yet such a delay does not raise any suspicion about the case of prosecution when it has satisfactorily come on record that 88,171 envelopes containing Annual Reports for the year 2000-01 of Escorts Ltd. were franked by M/s Abhishek Enterprises with forged franking and accused Gajender Kumar Sharma did not lead any evidence to prove that envelopes were legally franked with validly Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 164 of 197 issued franking machine. Hence, the alleged delay in the registration of FIR by CBI is not fatal to the case of the prosecution and defense cannot take any advantage out of it.
Linking of Accused Persons with Crime
330. Prosecution has successfully proved above that Annual Reports of Escort Ltd. for the year 2000-01 numbering 88,171 were dispatched to its share holders and about 463 envelopes Ex PW22/A20 returned undelivered by post to Escort Ltd. All the 463 envelopes had been franked with franking machine leaving impression of round town die as "VMS-UP-23/0047/99 Ghaziabad 245201" and impression of rectangular value showing interalia meter No. as "PB-4235" and "Rs. 16" as postage charges per envelopes. It has been found above proved that license No. "VMS UP-23/0047/99" has not been processed by Head Post Office Ghaziabad. In fact it has been proved that license No. UP- 23/0047/99 was issued to M/s Rashtriya Sahara Ltd., Noida for their franking Machine No. PB-00840. It has also been found above proved that Franking Machine bearing meter unit No. PB-5235 was sold to M/s Abhishek Enterprises of accused Dinesh Sharma and Franking Machine bearing meter unit No. PB-5507 was sold to M/s G.K.S. Services of accused Gajender Kumar Sharma. Neither accused Dinesh Sharma nor accused Gajender Sharma had Franking Machine bearing meter unit No. PB-4235. It has also been proved above that M/s Abhishek Enterprises had bagged the job of sending Annual Reports of Escort Ltd, Faridabad for the year 2000-01. It has also been proved above that 16 demand drafts amounting to Rs. 14,59,657/- issued by Escort Ltd. had been handed over to accused Gajender Kumar Sharma and two of them had Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 165 of 197 landed in the personal joint account of accused Gajender Kumar Sharma, six of them were credited into another account bearing No. 300118 and one was credited into account No. 300122. Defense particularly accused Gajender Kumar Sharma did not lead any evidence to prove that Franking Machine was arranged by Escort nor did he lead any evidence to justify encashment of demand drafts particularly two demand drafts in his account or as to how other eight demand drafts from his possession came to be deposited into account No. 300118 and 300122. Once it has been proved on record that job of mailing Annual Reports of 2000-01 of Escorts Ltd. was awarded to M/s Abhishek Enterprises and that 88,171 mails were sent by it, following Section 106 of the Evidence Act burden shifted upon accused persons particularly upon Gajender Kumar Sharma to show to the court that he had sent the mails under legal franking or had done the franking with machine arranged by Escorts Ltd. or that he had limited role of preparing the mails ready for dispatch by pasting name & address slips etc. Defense particularly accused Gajender Kumar Sharma did not lead any evidence in this regard. It has been proved on record that service of postal department was availed of in sending the Annual Reports to the shareholders of Escort Ltd but postages charges required to be paid to postal department by way of legal franking was not paid though Escort Ltd. paid it by way 16 demand drafts to accused Gajender Kumar Sharma. In the background of aforesaid facts having been proved, disproved or not proved, it has got to be seen if all or any of the offenses with which each accused persons have been charged, stands duly made out or not.
Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 166 of 197 Accused Dinesh Sharma
331. He has only been charged with offense under Section 120-B read with 255/256/257/406/409/420/468/471 IPC and under Section 13(2) read with 13(1) (c) & 13 (1) (d) of Prevention of Corruption Act ( in short P C Act). He has not be charged with any independent offense under any penal code/Act.
332. Bare perusal of the chargesheet would say that no role in the offense has been assigned to accused Dinesh Sharma except that he was the proprietor of M/s Abhishek Enterprises. Prosecution, however, itself asserts that accused Gajender Kumar Sharma was looking after the entire work/business of M/s Abhishek Enterprises. No evidence has come on record that accused Dinesh Sharma played any role, howsoever small or negligible it may be, in the crime or that he had knowledge of the crime being planned or committed. In order to rope in an accused in the crime with the help of Section 120-B it has got be proved that accused has conspired/agreed to be part of the crime. Hence, whether he was or was not party to criminal conspiracy shall be discussed under the heading "Criminal Conspiracy" below little later.
Accused Gajender Kumar Sharma
333. Accused Gajender Kumar Sharma beside being charged for offense under Section 255/256/257/406/409/420/468/471 IPC and under Section 13(2) read with 13(1) (c) & 13 (1) (d) of P. C. Act with the help of Section 120-B IPC, has also been independently charged for offense under Sections 255/ 256/257/406/420/471 IPC.
334. Section 255 IPC prescribes punishment for one found guilty of counterfeiting or knowingly performing any part of the process of Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 167 of 197 counterfeiting, any stamp issued by Government for the purpose of revenue.
335. It has been found above proved that though accused Dinesh Sharma was the proprietor of M/s Abhishek Enterprises but it was accused Gajender Kumar Sharma who has been looking after the work of the said firm. It has been found above proved that nothing has come in evidence to show that accused Dinesh Sharma directly or indirectly participated in the commission of work of mailing Annual Reports of Escort Ltd. by franking at Ghaziabad nor has anything come on record to suggest that he had information or given his consent to such work in such illegal manner. Hence, it has been found that despite being the proprietor he had not participated in the crime nor did he have knowledge either prior or during the commission of the crime. However, it has been found above proved that bill Ex. PW22/A-18 (D-61) under bill book of M/s Abhishek Enterprises and confirmation certificate Ex. PW22/A-7(D12) were issued under the signature of accused Gajender Kumar Singh on the letter head of M/s Abhishek Enterprises and these documents were not disputed during the cross examination of prosecution witnesses, on the contrary same has been relied upon by the defense during the cross examination of PW22. Direct evidence has also come on record that all 16 demand drafts amounting to Rs 14,59657/- in aggregate, got prepared by Escort Ltd. had been handed over to the accused Gajender Kumar Sharma. It has also been found above proved that work of mailing Annual Reports were arranged and executed by accused Gajender Kumar Sharma for and on behalf of M/s Abhishek Enterprises. It has also been found above proved that franking impressions i.e. round die impression "VMS-UP-23/0047/99 Ghaziabad 245201" and rectangular Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 168 of 197 value impression interalia " PB-4235" on the envelopes Ex PW22/A-20 have not been issued to M/s Abhishek Enterprises. To say it in other words neither license No. "VMS-UP-23/0047/99" nor franking meter unit No. "PB-4235" have been issued to M/s Abhishek Enterprises. Once it has been proved beyond doubt that Annual Reports were franked by the accused Gajender Kumar Sharma and neither license No. "VMS- UP-23/0047/99" nor franking meter unit No. "PB4235" have been issued to M/s Abhishek Enterprises or to him then burden shifted upon him to prove that franking were done by him with genuine die or done without knowledge or reason to believe that dies in the Franking Machine were counterfeit. Accused Gajender Kumar Sharma did not lead any evidence to prove that Franking Machine leaving such license number and meter unit number upon impression was arranged by Escort Ltd. as suggested by defense to witness PW22 Sh. Vinod Dixit during his cross examination or that he did not know that dies in the Franking Machine to be counterfeit or had no reason to believe that dies were counterfeit. It has already been found above proved that franking impression on the envelopes Ex PW22/A-20 were forged impression obtained using counterfeit dies. Thus, from the over all circumstances it can be said that accused Gajender Kumar Sharma intentionally did illegal/forged franking. Hence, accused Gajender Kumar Sharma is guilty of offense under Section 255 IPC and it is hereby held so.
336. Section 256 prescribes punishment for the one found guilty of having in his possession any instrument or material for the purpose of being used, or knowing or having reason to believe that it is intended to be used, for the purpose of counterfeiting any stamp issued by Government for the purpose of revenue.
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337. Although it was the case of the prosecution that Franking Machine bearing meter unit No. PB-5507 which was lying unused with accused Gajender Kumar Sharma being proprietor of M/s G. K. S. Services, was used for franking the mails involved in the present case, with counterfeit dies got prepared from accused Mohammad Tariqu from Aligarh but prosecution failed to prove that franking machine bearing Unit No. PB- 5507 or franking meter unit Ex PW32/A-9 recovered from the office of M/s Abhishek Enterprises at 92A, Prateek Market, Munirka was used in the offense of forged franking. But despite failure of the prosecution to prove possession of franking machine or counterfeit dies by accused Gajender Kumar Sharma, accused can be convicted for offense under Section 256 IPC as it has been proved above that he used forged franking on the envelopes Ex PW22/A-20 and that was not possible unless he was in possession of tools i.e. franking machine with counterfeit dies. Of course if he had only been charged with having been in possession of such tools only then in the absence of tools having been recovered and produced in court he could not have been convicted for offense under Section 256 IPC. Hence, there is no hesitation in holding that accused Gajender Kumar Sharma is guilty of offense under Section 256 IPC also and it is hereby accordingly held so.
338. Accused Gajender Kumar Sharma is also charged with offense under Section 257 IPC. Section 257 IPC prescribes punishment for the one found guilty of offense of making or performing any part of the process of making, or buys, or sells, or disposes of, any instrument for the purpose of being used, for the purpose of having reason to believe that it is intended to be used, for the purpose of counterfeiting any stamp issued by Government for the purpose of revenue. It has been found Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 170 of 197 above proved that accused Gajender Kumar Sharma got prepared counterfeit die from accused Mohammad Tarique from Aligarh and said die was used by him for forged franking on mails of Escort as impression of die got prepared by him was found on envelopes Ex PW22/A20. Therefore, accused Gajender Kumar Sharma is guilty of offense under Section 257 IPC as well and it is hereby so held.
339. Accused Gajender Kumar Sharma is charged with offense under Section 406 IPC also which prescribes punishment of criminal breach of trust. He has been accused of having misappropriated the amounts of 16 demands draft handed over to him for payments to be made to Senior Post Master, Ghaziabad, out of which Rs. 2,00,000/- he appropriated through his joint account in Mukundnagar Post Office. Before proceedings further it is pertinent to find out whether amounts of 16 demands drafts were payment to Sr. Post Master on behalf of Escort Ltd. or whether the amount were meant to be payment on behalf of M/s Abhishek Enterprises. For the offense of criminal breach of trust, entrustment of property is a necessary ingredient, therefore, it has got be found out whether the amount in demand drafts were entrusted to accused Gajender Kumar Sharma by Escort Ltd. for discharge of its liability towards Sr. Post Master, Ghaziabad and if it was so then accused would be guilty of criminal breach of trust if other ingredients are also made out. If, however, the amounts in demand drafts was meant to be payment towards the discharge of his own liability or liability of firm then there may not be entrustment of property and hence no misappropriation.
340. For example if A, a middle man offer to sell a product, manufactured by C, to B at a certain price X after having agreed to buy the product from Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 171 of 197 C below the price X i.e. at Y and intends to retain the difference between X and Y as his profit. B agrees to purchase the product at price X and upon having been supplied with the product B makes payment in cash, part of which obviously has to go to C but A retains the entire cash. A cannot be said to have committed criminal breach of trust towards B as B was not obliged to make any payment to C nor did B have any privity of contract with C. But if A were to act as agent of B and did not make payment to C then he would be guilty of criminal breach of trust.
341. In the present case it has been proved on record that M/s Abhishek Enterprises had received (from Escort Ltd.) the job of mailing Annual Reports of Escort Ltd. for the year 2000-01 to its shareholders and had executed the work in the manner as noted above. The case of prosecution is that 16 demand drafts that were handed over to accused Gajender Kumar Sharma were payments to Sr. Post Master, Ghaziabad. Scheme of franking as explained by witnesses of prosecution reveals that franking machine has got to be pre-charged or pre-loaded with value before putting to use and can be used till it has pre-paid value in it and the payment has got to be made by license holder or on behalf license holder for recharging the same. Prosecution has examined PW22 Sh. Vinod Dixit to prove that the job of mailing Annual Reports to shareholders of Escort Ltd. was awarded to M/s Abhishek Enterprises. PW22 Sh. Vinod Dixit, however, in his examination-in-chief remained silent about the terms and condition of the awarded contract to M/s Abhishek Enterprises that is to say whether M/s Abhishek Enterprises was to do work at labour rate as has been feebly set up in defense during cross examination or was all inclusive. Nevertheless, his cross examination gives some hint to it.
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342. In his cross examination at one place, he had deposed that M/s Abhishek Enterprises had issued a letter regarding the expenses they had proposed to incur towards franking charges, labour charges, envelopes charge, polythene charges etc. Said letter, however, is not part of court record. He had further deposed that it had been at the request of the accused Gajender that demand drafts of Rs 1 lac each were given to him for depositing it to the post office to increase the value of franking. He further deposed that as per procedure, company used to receive the receipt from the concerned post office and not from the accused and they had received the receipt from the post of Ghaziabad for an amount of Rs 16 lacs. He further deposed that the said receipts had been received by them showing different dates of receipts of demand drafts and amount as per the record. He further deposed that all receipt must be dated upto 04.09.2001 and they had not sent any acknowledgement to the post office for sending them the receipts. He volunteered that the receipts were give to them by accused Gajender. He further deposed that accused Gajender had not returned any amount out of the demand drafts of Rs. 16 lacs, however, as per the receipts Ex PW22/AD dt 04.09.2001 received from the post office, an amount of Rs. 14,59,567/- had been utilized by accused Gajender in sending Annual Reports. He further deposed that the Finance Department must have shown the total statement showing the amount given by demand drafts and the actual amount spent on the entire process and the balance amount, if any, against the accused Gajender would be within the knowledge of the Finance Department.
343. He admitted that in the bill dt. 9.10.2001 Ex PW22/A-18 (D-61) there had been no mention about the charges of franking machine. He Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 173 of 197 volunteered that there had been no need of mentioning of franking machine because on account of use of franking machine no charges had to be claimed by M/s Abhishek Enterprises. He admitted that other than the postage charges no other payment had been made to M/s Abhishek Enterprises except through the bill Ex PW22/A-18 (D-61). He volunteered labour charges had not been specifically mentioned in the said bill because it had been already included in the rates for postages of envelopes etc. at the time of contract and therefore there was no need to mention it separately. He further admitted that all the demand drafts on account of postages charges had been issued by his company directly in the name of the Postmaster/Sub Post Master and none of the DD/payment on this account had been directly made to M/s Abhishek Enterprises. He further deposed that as per company's record, the amount of all the demand drafts had been consumed except the spare payment of about Rs. 99 lacs which was lying with the post office. He further deposed that as per company's record, against the amount of DDs deposited by his company through Sh. Gajender Sharma of M/s Abhishek Enterprises with the post office, the postage had been sent through franking by the company of M/s Abhishek Enterprises. He further admitted that as per record of the company, entire work of postage had been carried out by M/s Abhishek Enterprises and there was nothing on record to show that there was any shortage of postage from the side of M/s Abhishek Enterprises.
344. From the testimony of PW22 in cross examination as noted just above the terms (of awarding job of mailing) which defense itself brought on record from the mouth of PW22 is that postages charges were to be paid by the Escort Ltd. directly to Post Office through franking machine Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 174 of 197 recharge and for that reason at the request of accused Gajender Kumar Sharma, Escort Ltd. got prepared 16 demand drafts 12 of them were of Rs 1 lacs each, one was of Rs. 1,16,000/- and rest of them were well below Rs. 1 lacs. The total value of all the 16 demand drafts on record is Rs. 14,59,657/- and not Rs. 16 lacs and therefore no balance was left with the Post Office as deposed to by PW22. But since he was not from finance department such miscalculation has no harm to the case of the prosecution. In all, it has come on record that although postages were to be borne by Escort Ltd. but same has to be paid through franking recharge and it was not to be a direct payment to post office on behalf of Escort although he did depose that company used to receive receipt directly from post office but it does not make any sense particularly when payment has to go through franking recharge. Whenever franking machine is recharged the payment for recharges is accepted for and on behalf of license holder of the Franking Machine. Thus, even if demand drafts were prepared by Escort Ltd. in favour of Sr. Post Master, Ghaziabad, it has to go through franking machine recharge in which case the liability to make payment for recharge was that of the license holder and therefore, amounts in the demand drafts were the property of licensee of franking machine and thus, there is no entrustment of property required for offense of criminal breach of trust qua the Escort Ltd. Further, since no franking machine was got recharged, therefore, no offense of criminal breach of trust is made out qua the Postal Department as well. Hence, accused Gajender Kumar Sharma is hereby acquitted of offense under Section 406 IPC.
345. Accused Gajender Kumar Sharma is further charged with offense under Section 420 IPC. Section 420 IPC prescribes punishment for cheating Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 175 of 197 and dishonestly inducing delivery of property. In the present case it has been argued that there has been no delivery of property hence offense under Section 420 is not made out rather lesser offense punishable under Section 417 IPC is made out, if any. This court is not in agreement with such argument feebly raised on behalf of defense. In the present case it has been found above proved that mails with forged franking were put in postal service for being delivered to addressees or back to sender in the event of addressee being not found for any reason whatsoever. With the help of forged franking on envelopes, postal department (of course with the connivance of some post officials) was made to believe that necessary postal charges had been pre-paid by franking and therefore they were induced to render their service of carrying the mails to the respective addressees or back to sender in the event of non-availability of addressees. In service sector of the economy it is the service which is the property of the said sector. Thus, if one renders service in return or exchange for money, the service is its property. Clearly in the present case postal department was made to render their service of transporting the mails to the respective addressees or back to sender in the event of non-availability of addressees and the department was, thus, induced to deliver the property (service) by dishonestly cheating it. Hence, accused Gajender Kumar Sharma is guilty of offense under Section 420 IPC and it is so held hereby.
346. Accused Gajender Kumar Sharma is also charged with offense under Section 471 IPC which prescribes punishment for using as genuine any forged document or electronic record which accused knew or had reason to believe to be a forged document or electronic record. He has been charged with using as genuine letter dt. 23.08.2001 and 04.09.2001 Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 176 of 197 allegedly prepared by accused Mahender Kumar which accused Gajender Kumar Sharma knew or had reason to believe that they were forged at the time he used it.
347. It has been found above proved that prosecution failed to prove that letter dt 23.08.2001 Ex PW22/A-2 (D-16) and letter dt 04.09.2001 Ex PW22/A-12 (D-17) were forged by accused Mahender Kumar. However, it has been found above proved that mails of Escort Ltd. were not legally sent from any post office with permission of Post Office, Ghaziabad. Hence, by necessary implication letter dt. 23.08.2001 Ex PW22/A-2 (D-
16) granting permission to send mails from Ghaziabad Post Office and letter dt. 04.09.2001 Ex PW22/A-12 (D-17) confirming dispatching of mails from the post office Ghaziabad, were forged documents. Although PW22 Sh. Vinod Dixit in his examination-in-chief did not depose as to how the company got the above stated two letters but in his cross examination, he deposed that accused Gajender collected the receipts of mail dispatched date wise from the concerned post office and handed over to his company. He further deposed that the receipt had been consolidated indicating date wise, quantity dispatched and amount of postage. Thus, he deposed that letter dt. 04.09.2001 Ex PW22/A-7 (D-
17) was handed over to the company by accused Gajender Kumar Sharma as it contains confirmation of dispatched mails date-wise. There was no denial of this testimony even by putting contrary suggestion. There is, however, no specific testimony of PW22 as to who handed over the letter dt 23.08.2001 Ex PW22/A-2 to the company. It has been found above proved that accused Gajender Kumar Sharma had sent the 88,171 mails of Escort in the postal pipeline for delivery to its addressee through forged franking and therefore he knew that there cannot be any Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 177 of 197 acknowledgement/confirmation about the dispatched mails from post office but accused Gajender Kumar Sharma was required to satisfy its client about the dispatched mails which he did by handing over the letter dt 04.09.2001 Ex PW22/A-7 (D-17) and therefore he knew that Ex PW22/A-7 was forged one and despite knowing it he used the same as genuine, hence, accused Gajender Kumar Sharma is guilty of offense under Section 471 IPC and it is accordingly hereby held so.
Accused Yogender Kumar Sharma
348. Accused Y. K. Sharma has been charged with offense under Section 255 IPC for counterfeiting or knowingly performing any part of the process of counterfeiting, any stamp issued by Government for the purpose of revenue.
349. PW23 Aman Sharma who had visited the site where franking work was going on, did not depose about the presence of accused Y. K. Sharma for any purpose nor prosecution attempted to bring out any fact from him regarding any role played by accused Y. K. Sharma. PW26 Sh. Vijay Sharma who at the instance of accused Gajender Kumar Sharma had got the counterfeit die from accused Mohd. Tarique from Aligarh, also did not say a word about accused Y. K. Sharma although in his statement under Section 164 Cr PC, he did make incriminating statement against accused Y. K. Sharma. Prosecution did not attempt to bring those incriminating material from his mouth in the court by cross examination or by putting suggestion. PW27 Sh. Sunil Pathak did depose in the cross examination of Ld. PP for CBI that apart from accused Gajender Kumar Sharma three more persons were present at the site but he was unable to identify any of the said persons apart from accused Gajender Kumar Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 178 of 197 Sharma. PW43 Sh. Shailender Patre did not depose anything about the identification of any other accused persons.
350. PW28 Sh. Krishan Kumar Sahi also did not identify any other accused persons except accused Gajender Kumar Sharma. He did admit in his cross examination by Ld. PP for CBI that his statement was record by the CBI officer and he had told him that accused Y. K. Sharma, Umesh Kumar Singh and Rajiv Kumar Srivastava were also there helping accused Gajender Kumar Sharma and had identified them but he told in the court that after 10 years of the incident he was not able to identify any of them. He further explained that when he had visited the site he had dealt with only accused Gajender Kumar Sharma and after 10 years he was not able to recognize any other person who might also be present there and whom he might have identified 10 years ago. Even after pointing out by Ld. PP for CBI, witness was unable to identify the accused Y. K. Sharma and others.
351. PW37 Sh. Pratap Singh, who has been examined to prove that house No. 45, Ghazipur was taken on rent by accused Y. K. Sharma, also failed to identify the accused Y. K. Sharma in the court instead he identified accused Rajiv Kumar Srivastava as his tenant. He was not able to identify accused Y. K. Sharma even after having been pointed out by Ld. PP for CBI.
352. PW39 Sh. Bhim Singh, personal driver of accused Gajender Kumar Sharma, did identify accused Y. K. Sharma in the cross examination of Ld. PP for CBI but failed to assign him any role in the crime. He categorically deposed that he did not know the internal arrangement between Sh. Y. K. Sharma and Gajender Kumar Sharma and could not say whether the business of bulk mailing had been being done by them Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 179 of 197 in partnership. He admitted that when his statement had been recorded by CBI officer he had told that the work of bulk mailing had been being done by Gajender Kumar Sharma along with 4-5 persons including Y. K. Sharma. Thus, even the testimony of PW39 does not prove involvement of accused Y. K. Sharma in the offense under Section 255 IPC. Similarly, witness PW42 Sh. Mukesh Chander Sharma only deposed in the cross examination of Ld. PP for CBI that accused Y. K. Sharma present in the court used to come to their office at Munirka to meet Gajender Kumar Sharma. He failed to say any incriminating averment against the accused Y. K. Sharma. Testimony of PW50 Sh. Bipin Kumar Gupta also did not help the prosecution as he failed to identify the handwriting and signature of accused Y. K. Sharma on any of the alleged incriminating documents such as Account Opening Form, endorsement on the reverse of 6 demand drafts etc.
353. Thus, it is seen that prosecution has failed to prove involvement of accused Y. K. Sharma in the offense under Section 255 IPC in any manner, hence accused Yogender Kumar Sharma is hereby acquitted of the charge under Section 255 IPC.
354. Accused Yogender Kumar Sharma has also been charged with offense under Section 256 for being in possession of instrument or material for the purpose of being used, or knowing or having reason to believe that it is intended to be used, for the purpose of counterfeiting any stamp issued by Government for the purpose of revenue. In the chargesheet it was alleged that house of accused Y. K. Sharma was searched and from his house instruments of tampering and certain tampered dies were recovered apart from other articles. However, for reason best known to the prosecution those articles allegedly recovered from the house of the Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 180 of 197 accused were neither produced in the court nor were proved. So much so that even search list was not proved. Hence, prosecution failed to prove that accused Yogender Kumar Sharma was in possession of instruments/tools or material for the purpose of being used, or knowing or having reason to believe that it was intended to be used, for the purpose of counterfeiting any stamp issued by Government for the purpose of revenue and consequently accused Yogender Kumar Sharma is hereby acquitted offense under Section 256 IPC.
355. Another charge against the accused Y. K. Sharma is under Section 420 IPC for inducing crediting in his joint account No. 300118 of an amount of Rs. 5,59,657/- of 7 demand drafts issued by Escort Ltd. in favour of Sr. Post Master, Ghaziabad allegedly towards the charge of services rendered by Postal Department for carrying and delivering of Annual Reports of Escort Ltd. to its shareholder. It has been found above that prosecution has failed to prove that post office saving bank account bearing No. 300118 with Kausambi Post Office was opened by accused Yogender Kumar Sharma. Prosecution has also failed to prove that endorsement on the back of 6 demand drafts out of 7 demand drafts that were credited into the account No. 300118 was done by accused Yogender Kumar Sharma. Prosecution also failed to prove that accused Yogender Kumar Sharma had deposited a sum of Rs 2,92,000/- in the Unclaimed Receipt Account of Kausambi Post Office. Thus, there is no evidence that accused Yogender Kumar Sharma induced crediting of an amount of Rs. 5,59,657/- of 6 out 7 demand drafts issued by Escort Ltd. in favour of Sr. Post Master, Ghaziabad and therefore, accused Yogender Kumar Sharma is hereby acquitted of offense under Section 420 IPC.
356. Accused Yogender Kumar Sharma was also charged with offense under Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 181 of 197 Section 468 IPC for having made endorsement on the back of 6 demand drafts deposited in the account No. 300118 to the effect that proceeds of said 6 demand drafts be deposited in the said account. It has already been noted above that prosecution has failed to prove that endorsement on the back of 6 demand drafts were done by accused Yogender Kumar Sharma. It is worthwhile to note that even if it had been proved that endorsement was in the hand of accused Y. K. Sharma then also offense under Section 468 IPC would not have been made out because he had signed his own signature purporting to represent himself only and not purporting to represent as having been signed by other person knowing well that said other had not signed the same. Hence, accused Yogender Kumar Sharma is hereby acquitted of offense under Section 468 IPC.
357. Accused Yogender Kumar Sharma is further charged with offense under Section 406 IPC for opening a SB account No. 300118 on 31.08.2001 and deposited as many as 7 demand drafts issued by Escort Ltd. in the name of Sr. Post Master Ghaziabad, for a total sum of Rs 5,59,657/- and with the help of co-accused persons A-7, A-10 and A-11 proceeds of said drafts were got credited into the said account. It has already been noted above that prosecution has failed to prove that accused Y. K. Sharma had opened the said account or had got credited the said demand drafts into the said account. Hence, accused Yogender Kumar Sharma is hereby acquitted of offense under Section 406 IPC.
Accused Rajiv Kumar Srivastava and Umesh Kumar Singh
358. Both accused Rajiv Kumar Srivastava and Umesh Kumar Singh have been charged with offense under Section 255, 420 and 406 IPC. Very much similar to Y.K. Sharma, no evidence came on record against Rajiv Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 182 of 197 Kumar Srivastava and Umesh Kumar Singh so far as their respective participation in the counterfeiting or knowingly performing any part in the process of counterfeiting postal stamps, are concerned. Hence, both the accused Rajiv Kumar Srivastava and Umesh Kumar Singh are hereby acquitted of their charge under Section 255 IPC.
359. So far as charge under Section 420 IPC against both accused persons is concerned, it has been alleged that they induced the crediting of amount Rs. 1,00,000/- of demand draft No. 505665 in SB A/c No. 300122 falsely representing that demand draft was their property but same was property of Sr. Post Master, Ghaziabad having been issued by Escort Ltd. It has, however, been found above that prosecution failed to prove that Post Office Saving Bank A/c No. 300122 was opened by accused Rajiv Kumar Srivastava and Umesh Kumar Singh. Hence, both accused are hereby acquitted of offense under Section 420 IPC.
360. So far as charge under Section 406 IPC is concerned, apart from lack of ingredient of entrustment having not been proved, prosecution has failed to prove that endorsement on the reverse of demand draft No. 505665 was in the hand of accused Rajiv Kumar Srivastava or that accused Umesh Kumar Singh had deposited an amount of Rs. 50,000/- in Unclaimed Receipt Account of Kausambi Post Office or that a/c No. 300122 were opened by both accused, hence both accused are hereby acquitted of offense under Section 406 IPC as well.
Accused Tarique Mohammad
361. He has been charged with offense under Section 257 IPC for having made or performed any part of the process of making instrument namely counterfeit rectangular die with franking machine No. PB-4235 and Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 183 of 197 meter unit No. PB-5507 for being used or had reason to believe that it was intended to be used for counterfeiting a postal stamp issued by Government of India for the purpose of revenue. It has been found above proved that accused Gajender Kumar Sharma got prepared fake die(s) from accused Tarique Mohd. from Aligarh and thus accused Tarique Mohammad is guilty of offense under Section 257 IPC.
Accused Zile Singh Kasana
362. Accused Zile Singh Kasana (since deceased) was charged under Section 13(2) r/w 13(1)(d) and 13(2) r/w 13(1) (c) of Prevention of Corruption Act, 1988 and under Section 409 and 420 IPC. Accused Zile Singh Kasana died on 03/09/2019 and proceeding against him abated vide order dated 13.09.3019.
Accused Inderpal Singh Yadav
363. Accused Inderpal Singh Yadav has been charged under Section 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988 as public servant for having allowed opening of account bearing No. 747913 on 14.09.2001 in Mukundnagar Post Office, Ghaziabad in the joint name of accused Gajender Kumar Sharma and his wife Smt. Pushpa Sharma, for having allowed deposit of two demand drafts for Rs. 1 lac each which were in favour of Sr. Post Master, Ghaziabad and were part of 16 demand drafts given to accused Gajender Kumar Sharma by Escort Ltd. and sent the same to Head Post Office, Ghaziabad for clearing in favour of accused Gajender Kumar Sharma and thereby causing undue pecuniary advantage in the SB A/c of Gajender Kumar Sharma and corresponding loss to the Postal Department. He has also been charged Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 184 of 197 with offense under Section 13(2) r/w 13(1) (c) of Prevention of Corruption Act, 1988 for as being public servant dishonestly or fraudulently allowing accused Gajender Kumar Sharma to misappropriate the amount of Rs 2,00,000/- deposited in SB A/c No. 747913.
364. It has been found above that prosecution has failed to prove that any illegality was committed by accused Inderpal Singh Yadav in allowing the opening of SB A/c No. 747913 or in allowing the deposit of two demand drafts for 1 lacs each or its encashment in the said account or withdrawal of money from the said account. No witnesses had deposed anything against this public servant. Hence, accused Inderpal Singh Yadav is acquitted of both the charges under Section 13(2) r/w 13(1) (c) and Section 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988.
Accused Mahender Kumar
365. Accused Mahender Kumar has been charged for offense under Section 468 for having forged letter dt 23.08.2001 and 04.09.2001 purported to have been written by Sub Post master, Ghaziabad and Dy. Post Master, Ghaziabad respectively. It has been found above that prosecution has failed to prove that these letters were forged by accused Mahender Kumar, hence accused Mahender Kumar is hereby acquitted of offense under Section 468 IPC.
366. Accused Mahender Kumar has also been charged with offense under Section 406 IPC for having credited 7 demand drafts amounting to Rs. 5,59,657/- into account No. 300118 jointly in his name and in the name of Yogender Kumar Sharma, meant for Sr. Post Master, Ghaziabad and issued by Escort Ltd. It has been found above proved that Account Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 185 of 197 Opening Form for the account No. 300118 bore the signature of accused Mahender Kumar and that it was opened by him jointly with Yogender Kumar Sharma (but prosecution failed to prove that account holder Yogender Kumar Sharma was the accused Yogender Kumar Sharma ). It has also been found proved that amount of 7 demand drafts were credited into the said account. It has been proved that all the 16 demand drafts including the 7 demand drafts credited into the account No. 300118, were handed over to accused Gajender Kumar Sharma. It has been held above that accused Gajender Kumar Sharma was not guilty of offense under Section 406 IPC as there was lack of entrustment. In the case of Mahender Kumar also there is lack of entrustment because neither Escort Ltd had entrusted the said demand drafts to accused Mahender Kumar nor had he come in possession of said drafts being public servant on behalf of postal department. Thus, ingredient of entrustment of property is missing and therefore accused Mahender Kumar is acquitted offense under Section 406 IPC.
Accused Om Prakash Sharma
367. Accused Om Prakash Sharma was charged with offense under Section 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988 for as being public servant having abused his official position and obtained for himself and/or other pecuniary advantage by corrupt or illegal means thereby clearing 16 demand drafts which were in the name of Sr. Post Master, Ghaziabad presented from Kausambi and Mukundnagar Post Offices and allowing the credit to be given in the SB a/c of co-accused persons opened in Kaushambi and Mukundnagar Post Offices, Ghaziabad in flagrant violation of rules of the department. It has been found above that prosecution miserably failed to prove that accused Om Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 186 of 197 Prakash Sharma violated any rules in clearing the 16 demand drafts. No prosecution witness deposed about any violation of rules by the accused. Hence, accused Om Prakash Sharma is hereby acquitted of offense under Section 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988.
Accused Brij Dev Goswami
368. Accused Brij Dev Goswami was charged under Section 13(2) r/w 13(1)
(d) of Prevention of Corruption Act, 1988 but he had died during pendency of the present matter and vide order dt 04.02.201 proceedings against him stood abated.
CRIMINAL CONSPIRACY
369. An agreement to commit an offense or an illegal act between two or more person is the essence of conspiracy. Such an agreement is designated as criminal conspiracy. For appreciating the nuances of Section 120A r/w Section 120B(2) of IPC which makes criminal conspiracy punishable in law, it is necessary to deal with various terms, used in Section 120A IPC.
370. The important words used in Section 120A are "agreement" between two or more persons, "offense" which is defined in Section 3(38) of the General Clauses Act, 1897 to mean any act or omission made punishable by any law for the time being in force. "Offense" is also defined in Section 2(n) of the Code of Criminal Procedure, to mean any act or omission made punishable by any law for the time being in force. Further the term used in Section 120A IPC is " illegal" which has been defined in Section 43 of IPC to the effect that the word "illegal" is applicable to everything which is an offense or which is prohibited by Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 187 of 197 law or which furnishes ground for a civil action, and a person is said to be "legally bound to do" when it is illegal for him to omit. Further, Section 32 & 33 of IPC defines an "act" means a series of acts and also includes illegal omission..."
371. A combined reading of the above makes it clear that to attract a criminal liability for the offense of criminal conspiracy under Section 120A r/w Section 120B(2) of IPC, the following are to be proved:
That two or more persons agreed to do, or cause to be done -
(1) an illegal act (which is an offense or which is prohibited by law, or which furnishes ground for a civil action), OR (2) an act which is not illegal but by illegal means (which is an offense or which is prohibited by law, or which furnishes ground for a civil action)
372. Such agreements are designated as criminal conspiracy and if such an agreement is entered to commit an offense (any act or omission made punishable by any law for the time being in force), then that such agreement is also an independent offense.
373. In Kehar Singh v. State (Delhi Administration) AIR 1988 SC 1883 (known as Indira Gandhi murder case) it was held:
"...Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution often relies on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can undoubtedly be proved by such evidence direct or circumstantial. But the Court must inquire whether the two persons are independently pursuing the same end or they have come together in the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offense of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient.
It is unnecessary to prove that the parties "actually came together and agreed in terms" to pursue the unlawful object; their need never have been Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 188 of 197 an express verbal agreement, it being sufficient that there was a "tacit understanding between the conspirators as to what should be done..."
374. In the case of State of Maharashtra & ors v. Somnath Thapa & Ors.
(1996) 4 SCC 659, the Supreme Court observed that for a person to conspire with another, he must have knowledge of what the conspirators wanted to achieve and thereafter having the intent to further the illegal act takes recourse to a course of conduct to achieve end or facilitate its accomplishment.
375. In Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra (2008) 10 SCC 394, it was held :
"... Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offense of conspiracy is a substantive offense and renders the mere agreement to commit an offense punishable, even if an offense does not take place pursuant to the illegal agreement. (emphasis supplied)..."
376. In the case of Baliya v. State of MP (2012) 9 SCC 696, it was held:
"15..........The foundation of the offense of criminal conspiracy is an agreement between two or more persons to cooperate for the accomplishment/ performance of an illegal act or an act which is not illegal by itself, through illegal means. Such agreement or meeting of minds create the offense of criminal conspiracy and regardless of proof or otherwise of the main offense to commit which the conspiracy may have been hatched once the unlawful combination of minds is complete, the offense of criminal conspiracy stands committed.
17. The offense of criminal conspiracy has its foundation in an agreement to commit an offense or to achieve a lawful object through unlawful means. Such a conspiracy would rarely be hatched in the open and, therefore, direct evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the court in drawing such an inference must consider whether the basic facts i.e. Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 189 of 197 circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and thereafter, whether from such proved and established circumstances no other conclusion except that the accused had agreed to commit an offense can be drawn. Naturally, in evaluating the proved circumstances for the purposes of drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused."
377. In the case of CBI v. K. Narayana Rao (2012)9 Scale 25), it was held:
"24. The ingredients of the offense of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in the matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offense of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence."
378. From the proposition of law laid down in the aforesaid judgments, it comes out that in order to prove the conspiracy, prosecution is not required to prove the agreement and to adduce direct evidence of conspiracy that the parties came together and agreed to pursue the unlawful object. It is not necessary to prove that there was an express verbal agreement but what is necessary to show is that there was some sort of tacit understanding between the conspirators as to what should be done.
379. Keeping the aforesaid principles in mind it has got to be seen if all accused persons or two or more of them were in criminal conspiracy to commit the offense involved in the present case.
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380. It has been found above proved that although accused Dinesh Sharma was the proprietor of M/s Abhishek Enterprises but it was accused Gajender Kumar Sharma who was running the same and this is the case of the prosecution as well. It has also been found above proved that job of mailing 88,171 Annual Reports of Escort Ltd. for the year 2000-01 to its shareholders by franking, was given to M/s Abhishek Enterprises and it has also been found above proved that M/s Abhishek Enterprises had issued confirmation certificate Ex PW22/A-7 under the signature of accused Gajender Kumar Sharma to Escort Ltd. thereby confirming sending of 88171 Annual Reports to its shareholder by franking. It has also been found above proved that Annual Reports were sent/mailed under forged franking. 463 undelivered returned envelopes Ex PW22/A- 20 containing forged franking are available on record.
381. It has also been found above proved that accused Gajender Kumar Sharma got forged die(s) prepared from accused Tarique Mohammad from Aligarh and which die(s) had been used in forged franking. It has been found above proved that at the instance of accused Gajender Kumar Sharma, Escort Ltd. had handed over 16 Demand Drafts to accused Gajender Kumar Sharma for recharging his franking machine but out of 16 demands drafts he got two encashed in his joint account No. 747913 with Mukundnagar Post Office, 7 DDs got credited into account No. 300118 with Kaushambi Post Office standing in the joint name of accused Mahender Kumar and Yogender Kumar Sharma (not proved to be accused Yogender Kumar Sharma) and one demand draft in the account No. 300122 with Kausambi Post Office standing in the joint name of Rajiv Kumar Srivastava and Umesh Kumar Singh (not proved to be both accused).
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382. It has also been found above that accused Gajender Kumar Sharma did not lead any evidence to prove how 8 DDs from his possession got credited into account No. 300118 and 300122. It has also been found above proved that accused Mahender Kumar had opened the account No. 300118 but he did not lead any evidence to prove who his co-account holder was or it was the accused Yogender Kumar Sharma who was his joint account holder or that he had opened account for genuine purpose or how 7 demand drafts got credited into the said account. It has also been found above proved that accused Gajender Kumar Sharma is guilty of offense under Section 255, 256, 257, 420 and 471 IPC, accused Tarique Mohammad has been found guilty of offense under Section 257 IPC and accused Mahender Kumar though not found guilty of any substantial offense with which he was charged but it has been found that he had opened the account No. 300118 in which 7 demands drafts amounting to Rs. 5,59,657/- which were handed over to accused Gajender Kumar Sharma, were deposited.
383. No evidence has come against accused Dinesh Sharma that he participated in the crime or consented to the commission of crime or had knowledge of commission of crime during the time it was being committed or anytime thereafter before detection. Participation of accused Yogender Kumar Sharma, Rajiv Kumar Srivastava and Umesh Kumar Singh in the crime has also not been proved nor any of them have been found guilty of any substantial offense they were respectively charged with. No offense under Prevention of Corruption Act, 1988 against any of the public servants under trial in the present case could be proved by the prosecution.
384. Accused Tariqu Mohammad cannot be said to have not known that Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 192 of 197 forged die prepared by him would be used by accused Gajender Kumar Sharma for forged franking. Similarly, since accused Mahender Kumar did not lead any evidence to show as to how he legally got encashment of 7 of demand drafts in his account or that he had been paid by Escort for any legal reason, his conduct smacks of nothing but his agreement with accused Gajender Kumar Sharma in the commission of various crime he (Gajender) committed. In the above circumstances offense of criminal conspiracy stands proved by necessary legal inference from circumstantial evidences, between accused Gajender Kumar Sharma, accused Tarique Mohammad and accused Mahender Kumar. Hence, all three accused i.e. Gajender Kumar Sharma, Tarique Mohammad and Mahender Kumar are hereby held guilty of offense of criminal conspiracy and are also guilty of offenses under Section 255, 256, 257, 420, 471 IPC with the help of Section 120-B IPC.
385. Apart from above mentioned three accused persons, rest alive accused persons i.e. accused Dinesh Kumar, accused Y. K. Sharma, accused Rajiv Kumar Srivastava, accused Umesh Kumar Singh, accused Inderpal Singh Yadav and accused Om Prakash Sharma, are hereby acquitted offense under Section 120-B and consequently they are also acquitted of offenses under Section 120-B read with Section 255, 256, 257, 406, 409, 420, 468, 471 IPC and also under Section 13(2) r/w 13(1) (c) & 13(1) (d) of Prevention of Corruption Act, 1988.
386. Since none of the public servants have been found guilty of any offense, the question that sanctions for prosecution of respective public servants have not been validly accorded has not been gone into. Accused Mahender Kumar though is a public servant but none of his act alleged in the present case has allegedly been performed by him while Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 193 of 197 discharging duties of his public office and thus, in his case even sanction for prosecution is not required and therefore the alleged illegality of his sanction for prosecution has not been gone into.
Remarks
387. Before parting with the judgement, it must be noted with pain that if CBI had properly applied its mind, at least two of the accused persons (one of them acquitted and other died during the pendency) would have been saved from rigmarole of the present trial. Perusal of Rule 244 (5) (b) of Chapter 30 of the Post Office Small Saving Scheme Part-II 10 th Edition 1997, clearly reveals that there was no objection to the acceptance of cheque drawn by a third party in favour of the Postmaster provided the cheque was accompanied by an application from the depositor requesting the Postmaster to credit the amount into his account. In the present case all 10 demands drafts that went into private accounts were in favour of Post Master and were accompanied with request on reverse by the account holder to credit the same into their respective account and therefore their clearance by accused Om Prakash Sharma and Brij Dev Goswami (since deceased) was not against the rule/manual of Post Office. Further, there was no evidence that these officials had knowledge or means to know that demands drafts were meant for payment into the account of postal department. Had there been any rule that cheques/DDs drawn in favor of Postmaster cannot at all be credited into private account, then their encashment into private account would have been called into question but admittedly there was no such rule. CBI acted on Rule 244 (5) (c) of the afore stated manual ignoring Rule 244 (5) (b) and without realizing that 244(5) (c) is applicable to instrument drawn on POSB whereas in the present case instruments Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 194 of 197 were drawn not on POSB but on State Bank of Saurashtra.
388. CBI is, therefore, advised to be careful in roping in public servants who are routinely performing their duties and has no means to discover that his innocent performance of his official duty as per rule would make him part of any criminal conspiracy which might have been hatched behind him without his knowledge, consent, acquiescence and willingness. Sanctioning authorities should have also been careful before according sanction for prosecution. Before sending up for trial, endeavor must be made to find out if the public servant has ditched the department he works for or he has himself been ditched/deceived/tricked by other public servants or private persons. Be that as it may, in the present case prosecution of accused Om Prakash Sharma and Brij Dev Goswami was totally unwarranted and to some extent so was the case with Inderpal Singh Yadav as well.
SUMMARY
389. In view of the above discussion, reasonings and findings, accused Dinesh Sharma (A-1) is hereby acquitted of offense of Criminal Conspiracy under Section 120-B read with Section 255, 256, 257, 406, 409, 420, 468, 471 IPC and also under Section 13(2) r/w 13(1) (c) & 13(1) (d) of Prevention of Corruption Act, 1988.
390. Accused Gajender Kumar Sharma (A-2) is hereby held guilty of offenses under Section 255, 256, 257, 420 and 471 IPC and offense of Criminal Conspiracy under Section 120-B read with Section 255, 256, 257, 420, & 471 of Indian Penal Code. He is acquitted of offense under Section 406 IPC and Criminal Conspiracy under Section 120-B read with Section 406 and 468 of IPC and Section 13(2) r/w 13(1) (c) & Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 195 of 197 13(1) (d) of Prevention of Corruption Act, 1988.
391. Accused Yogender Kumar Sharma (A-3) is hereby acquitted of substantial offense under Section 255, 256, 420, 468 and 406 Indian Penal Code. He is hereby acquitted of offense of Criminal Conspiracy under 120-B read with Section 255, 256, 257, 406, 409, 420, 468, 471 IPC and Section 13(2) r/w 13(1) (c) & 13(1) (d) of Prevention of Corruption Act, 1988.
392. Accused Rajiv Kumar Srivastava (A-4) and Umesh Kumar Singh (A-5) are hereby acquitted of substantial offense under Section 255, 420 and 406 of Indian Penal Code. They are also hereby acquitted of offense of Criminal Conspiracy under Section 120-B read with Section 255, 256, 257, 406, 409, 420, 468, 471 IPC and Section 13(2) r/w 13(1) (c) & 13(1) (d) of Prevention of Corruption Act, 1988.
393. Accused Tarique Mohammad (A-6) is hereby held guilty of offense under Section 257 of Indian Penal Code. He is also hereby held guilty of Criminal Conspiracy under Section 120-B read with 255, 256, 257, 420, 471 IPC and is acquitted of offense 120-B read with Section 406, 409, 420 and 468 IPC and Section 13(2) r/w 13(1) (c) & 13(1) (d) of Prevention of Corruption Act, 1988.
394. Accused Zile Singh Kasana (A-7) - no findings is returned against him as proceedings against him abated on account of his demise during the pendency of trial.
395. Accused Inderpal Singh Yadav (A-8) is hereby acquitted offense under Section 13(2) r/w 13(1) (c) & 13(1) (d) of Prevention of Corruption Act, 1988. He is also hereby acquitted of offense of Criminal Conspiracy under Section 120-B read with Section 255, 256, 257, 406, 409, 420, 468 & 471 IPC and Section 13(2) r/w 13(1) (c) & 13(1) (d) of Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 196 of 197 Prevention of Corruption Act, 1988. .
396. Accused Mahender Kumar (A-9) is hereby acquitted of offense under Section 468 and 406 Indian Penal Code. He, however, is held guilty of Criminal Conspiracy under Section 120-B read with Section 255, 256, 257, 420 and 471 of Indian Penal Code. He is acquitted of offense of Criminal Conspiracy read with offense under Section 406, 409 and 468 Indian Penal Code and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
397. Accused Om Prakash Sharma (A-10) is hereby acquitted of offense under Section 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988. He also acquitted of offense of Criminal Conspiracy under 120-B read with Section 255, 256, 257, 406, 409, 420, 468 & 471 and Section 13(2) r/w 13(1)(c) & 13(1)(d) of Prevention of Corruption Act, 1988.
398. Accused Brij Dev Goswami (A-11) - proceedings against him abated as he died during the trial of the present case. Hence, no findings is returned against him. Digitally signed HARISH by HARISH KUMAR KUMAR Date: 2021.09.09 15:22:26 +0530 (Harish Kumar) Special Judge (PC Act)(CBI-20) Announced in the open Court. Rouse Avenue Districts Courts (Judgment contains 197 pages) New Delhi/09.09.2021 Case No. CBI 43/19 CBI V. Dinesh Sharma & Ors. Page No. 197 of 197