CRIMINAL APPEAL No. 391 OF 2001 WITH CRIMINAL APPEAL NO. 397 OF 2001 WITH CRIMINAL APPEAL NO. 401 OF 2001 WITH CRIMINAL APPEAL NO. 407 OF 2001 ******* (In the matter of appeals under Sections 374(2) and 389(1) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 19th October, 2001 passed by Shri Braj Nandan sahay, Special Judge, Central Bureau of Investigation, North Bihar, Patna in Special Case No. 08 of 1989/R.C. No. 5(A) of 1989) ******* 1. VIDYA NAND JHA @ BIDYA NAND JHA, SON OF PRAYAG NARAIN JHA, RESIDENT OF VILLAGE & P.O. DARIYAPUR, POLICE STATION SHAHKUND, DISTRICT BHAGALPUR, AT PRESENT WORKING AS BOOKING CLERK, N.E. RAILWAY, SUPAUL, DISTRICT SAHARSA (BIHAR) 2. RAHMAT HUSSAIN, SON OF MD. AFZAL HUSSAIN, RESIDENT OF VILLAGE & P.O. KURHA SANDALPUR, POLICE STATION SAHEBPUR KAMAL, DISTRICT BEGUSARAI, AT PRESENT WORKING AS BOOKING CLERK, N.E. RAILWAY AT METHAI RAILWAY STATION, POLICE STATION MADHEPURA, DISTRICT MADHEPURA ……………………………………………APPELLANTS (CR. APP. 391/2001) 1. SURENDRA JHA, SON OF SRI MAHENDRA NARAYAN JHA, RESIDENT OF VILLAGE REWARI, POLICE STATION ANGARGHAT, DISTRICT SAMASTIPUR 2. NARENDRA PRASAD VERMA, SON OF LATE BASUDEO LAL, RESIDENT OF VILLGE PATORI, POLICE STATION BIHTA, DISTRICT SAHARSA …………………………………………APPELLANTS (CR.APP. 397/2001) NARESH SHARMA, SON OF LATE ROOPO NARAYAN SHARMA, RESIDENT OF VILLAGE CHAKRAMI, P.O. NARAINPUR, POLICE STATION BIHPUR, DISTRICT BHAGALPUR ………………………..APPELLANT (IN CR.APP. 401/2001) GYAN PRASAD YADAV, SON OF SHRI PRADIP PRASAD YADAV, RESIDENT OF VILLAGE AND P.O. KACHARA, POLICE STATION SOURBAZAR, DISTRICT SAHARSA ………………………….APPELLANT (CR. APP. 407/2001) VERSUS THE STATE OF BIHAR THROUGH THE CENTRAL BUREAU OF INVESTIGATION ………………………………………………………OPPOSITE PARTY (IN ALL APPEALS) ********* 2 FOR THE APPELLANT :- MR. S. N. P. SINHA, SENIOR ADVOCATE (in Cr. App. 391 & 401/2001) MR. SYED M. ASHRAF, ADVOCATE MRS. MIRA KUMARI, ADVOCATE FOR THE APPELLANT :- MR. AKHILESHWAR PRASAD SINGH, ADV. (in Cr. App. No. 397/2001) FOR THE APPELLANT :- MR. RAJESH KUMAR SINGH, ADVOCATE (in Cr. App. No. 407/2001) MR. RAJ SHEKHAR, ADVOCATE FOR THE S T A T E :- MR. BIPIN KUMAR SINHA, ADVOCATE (IN ALL APPEALS) MR. SUBHASH CHANDRA MISHRA, SC,CBI P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. Six persons have filed these appeals. Out of which, Narendra Prasad Verma, appellant of Criminal Appeal No. 397 of 2001 died during the pendency of the appeal. The appellants have challenged the judgment passed by the Special Judge, Central Bureau of Investigation, North Bihar, Patna in Special Case No. 08 of 1989 R.S. No. 5A/1989. All the appellants are Government employees except Gyan Prasad Verma. Gyan Prasad Verma, appellant in Criminal Appeal No. 407 of 2001 has been sentenced to undergo rigorous imprisonment for two years under Section 120B read with 420 of the Indian Penal Code, rigorous imprisonment for two years under Section 467 of the Indian Penal Code and rigorous 3 imprisonment for two years under Section 468 of the Indian Penal Code. Vidyanand Jha, appellant in Criminal Appeal No. 391 of 2001 has been sentenced to undergo rigorous imprisonment for two years each under Section 120B, 420, 467 & 468 of the Indian Penal Code and rigorous imprisonment for two years under Section 13(i)(c) and 13(i)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 and fine of Rs. 10,000/- under the aforesaid sections. In default of payment of fine, the appellant would have further to undergo rigorous imprisonment for six months. Rahmat Hussain, appellant in Criminal Appeal No. 391 of 2001 has been sentenced to undergo rigorous imprisonment for two years under Section 120B of the Indian Penal Code, rigorous imprisonment for two years under Section 420 of the Indian Penal Code, rigorous imprisonment for two years under Section 467 of the Indian Penal Code, rigorous imprisonment for two years under Section 468 of the Indian Penal Code, rigorous imprisonment for two years under Section 13(i)(c) and 13(i)(d) read with 13(2) of the Prevention of Corruption Act and a fine of Rs. 10,000/- under the aforesaid sections. In default of payment of fine, the appellant would have further to undergo rigorous imprisonment for six months. Naresh Sharma, appellant in Criminal Appeal 4 No. 401 of 2001 has been sentenced to undergo rigorous imprisonment for two years under Section 120B of the Indian Penal Code, rigorous imprisonment for two years under Section 420 of the Indian Penal Code rigorous imprisonment for two years under Section 468 read with 471 of the Indian Penal Code, rigorous imprisonment for two years under Section 13(i)(c) and 13(i)(d) read with 13(2) of the Prevention of Corruption Act and a fine of Rs. 10,000/- under the aforesaid sections. In default of payment of fine, the appellant would have further to undergo rigorous imprisonment for six months. Surendra Jha, appellant in Criminal Appeal No. 397 of 2001 has been sentenced to undergo rigorous imprisonment for two years under Section 120B of the Indian Penal Code, rigorous imprisonment for two years under Section 420 of the Indian Penal Code, rigorous imprisonment for two years under Section 467 of the Indian Penal Code, rigorous imprisonment for two years us 468 of the Indian Penal Code, rigorous imprisonment for two years under Section 13(i)(c) and 13(i)(d) read with 13(2) of the Prevention of Corruption Act and a fine of Rs. 10,000/- under the aforesaid sections. In default of payment of fine, the appellant would have further to undergo rigorous imprisonment for six months. All the sentences mentioned aforesaid are to 5 run concurrently. The prosecution case is that the informant learnt from the reliable sources that the appellants aforesaid during the period July and August, 1988 in connivance of other unknown persons dishonestly and fraudulently by using their official positions not only issued railway tickets for different destinations against forged police railway warrants but also caused wrongful loss to the extent of Rs,. 22,517/-. The contention on behalf of the appellants is that the appellants did not utilize forged railway warrants and even if the railway warrants were forged, they had no knowledge or reliable sources to know that the warrants were forged. It is submitted that at no point of time was there a complaint of any sort that the warrants were forged or that the railway had met any loss due to the issuance of railway tickets against the warrants in question. It is contended that the prosecution has failed to prove that the warrants were forged and has grossly failed to substantiate the charges levelled against the appellants. The sanction for prosecution is without proper authority and that the evidence does not disclose any offence under Sections 467, 468 or 471 of the Indian Penal Code. Learned Counsel appearing on behalf of the appellants have contended that the judgment of conviction is erroneous on law and facts. The prosecution has not been able 6 to prove the charges. In the aforesaid context, the attention of the Court has been drawn to the charges which have been levelled against each of them. The charges against Gyan Prasad Yadav differ to some extent. It is relevant to quote the charges of one of the appellants to bring home to demonstrate the point made out by the appellant. CHARGE WITH SIX HEADS I, Narendra Mishra, Special Judge C.B.I., North Bihar, Patna do hereby charge you; Bidyanand Jha as follows: Firstly, that you during the period July 88 to August 88 at Saharsa cheated Railway Administration its staff and its passengers by dishonestly and fraudulently inducing them to deliver certain property to which 2,391/- which was the property of the Railway and thereby committed an offence punishable u/s 420 of the I.P.C. and within my cognizance. Secondly, that you during the aforesaid period and placed forged certain document purported to be valuable property to which Railway Warrant No. 043526/000036 dt 6- 8-88 and 046376/00046 dt 12-8-88 and that you thereby committed an offence punishable u/s 467 of the I.P.C. and within my cognizance. Thirdly, that you during the aforesaid period and placed forged certain documents to which aforesaid Railway warrant intending that these shall be used for the purpose 7 of cheating and that you thereby committed an offence punishable u/s 468 of the I.P.C. and within my cognizance. Fourthly, that you during the aforesaid period and place fraudulently or dishonestly used a genuine certain documents to which aforesaid Railway warrants which you knew or had reasons to believe at the time you used it to be forged documents and that you thereby committed an offence punishable u/s 468 r/w 471 of the I.P.C. and within my cognizance. Fifth, that you being a public servant employed at the post of relieving commercial clerk, N. F. Railway, Saharsa during the aforesaid period and place misappropriated or converted to your own use certain property to which Rs. 2,391/- entrusted to you under your control as a public servant or allowed so to do that you thereby committed an offence punishable u/s 13(10(c) of the P.C. Act 1988 r/w sec 13(2) of the said act and within my cognizance. Sixthly, that you during the aforesaid period and place the above capacity, by corrupt and or illegal means or by otherwise abusing your position as public servant obtained yourself or for any other person pecuniary advantage to the extent of the aforesaid amount and that you thereby committed an offence punishable u/s 13(10(d) of the P.C. Act 1988 r/w 13(2) and within my cognizance. And I hereby direct you to be tried for the said charges. Charges haved been read over and explained to the accused to which he 8 pleaded not guilty. I would like to emphasis charge no. 2 made against each of the appellants. Each appellants have been charged separately for utilizing certain warrants. The warrant numbers are given in the charge. It has been argued that the fact that these charge has not been proved at all by the prosecution. Referring to paragraphs 22 to 36 of the evidence of PW 3 wherein Prem Kumar Biswas has specifically identified the handwriting on the warrant in column 7 to 10 and specified the person who had filled in the column in the said warrants. It would be difficult to give the details of the evidence of each and every paragraph aforesaid and therefore, a chart has been prepared which would indicate the allegation according to the First Information Report, the person who is charged for the offences and the handwriting as proved by PW 3. The chart also specifies which of the appellants had filled the warrants and issued tickets to police personnel against the warrants, Learned Counsel for the appellants have demonstrated that the charges have not been proved. The chart is given hereinafter:- Sl. no. According to FIR & chargesheet Chargesheeted againt Charge frame against Proved against 1 036278/000038 Gyan Pd. Yadav G.P.Yadav N.P.Verma (D) 2 0435261/000036 Bidyanand Jha B. N. Jha N.P.Verma 9 (D) 3 026605/000034 G.P.Yadav G.P.Yadav Surendra Jha 4 022513/005 Rahmat Hussain R. Hussain & G.P.Yadav Surendra Jha 5 052475/00006 NONE NONE Surendra Jha 6 052515/000022 Surendra Jha Surendra Jha N.P.Verma (D) 7 051376/000080 G.P.Yadav NONE N.P.Verma (D) 8 046376/000040 Bidyanand Jha B. N. Jha Surendra Jha 9 083254/000014 G.P.Yadav & N. P. Verma N.P.Verma N.P.Verma (D) 10 026608/000037 G.P.Yadav & Surendra Jha G.P.Yadav Surendra Jha 11 061495/000052 G. P. Yadav G.P.Yadav N.P.Verma (D) 12 076255/000079 G.P. Yadav & Naresh Sharma G.P.Yadav & Naresh Sharma Naresh Sharma 13 013662/00050 G.P.Yadav & N. P. Verma N.P.Verma N.P.Verma (D) 14 021815/010 Rahmat Hussain R.Hussain Surendra Jha 15 070531/090 NONE R.Hussain Surendra Jha 16 022611/011 NONE R.Hussain Surendra Jha I may also point out that the handwriting of these appellants was taken by comparing the handwriting to the handwriting in the attendance register which has also been made exhibit in this case. The handwriting of the different appellants has been identified by PW 3 for e.g. the handwriting of Shailendra Jha taken from the attendance register has been marked as Exhibit 2/1 and so on. In this manner, PW 3 has not only proved the handwriting on the attendance register which was seized during investigation and 10 marked as exhibit, but also has identified the handwriting on each and every warrant and stated the name of one or the other appellants who prepared the warrants. On the basis of the aforesaid chart, it would appear that appellant Vidyanand Jha, Rahmat Hussain and G.P. Yadav have not filled in any of the 16 warrants which were allegedly forged. Against appellant Surendra Jha, the charges disclosed that he had utilized only one warrant whereas PW 3 has proved his handwriting on eight railway warrants. Against appellant Naresh Sharma it is alleged that two railway warrants were utilized by him, whereas from the evidence of PW 3, it is apparent that he had only filled one railway warrant. Therefore, learned Counsel for the appellants submits on the basis of the aforesaid evidence infact the charges framed against the appellants during the trial have not been substantiated and this in itself is sufficient to acquit the appellants in this case. Before addressing the other contention that has been placed in this case, it is relevant to refer certain documents. Exhibit 1 to 1/7 are railway warrants in the pen & signature of Shailendra Jha. Exhibit 2 to 2/3 is the endorsement of Shailendra Jha on the register. Exhibit 3 is the attendance register from October, 1988 to October, 1989. Exhibit 4 to 4/2 and 19 to 19/2 are the railway warrants and the signature and writing of the different appellants on each of the railway warrants. Exhibit 20 to 20/2 is the sanction order. 11 Exhibit 21 to 21/5 is the attendance register which has been utilized for the purpose of proving the handwriting of the appellants. Exhibit 22 onwards to 25/3 is the DTC. Exhibit 26 is the letter written by B.K. Dubey. Exhibit 27 is the First Information Report. The specimen handwriting of the appellants is exhibit 28, 29, 30, 35/4 and exhibit 32 to 32/1 is the signature of the handwriting expert. I shall first discuss the evidence of the witnesses in order to examine whether the allegations as set out in the First Information Report and charges framed have been substantiated. PW 1 Arun Kumar Malhotra is an employee of Gaya Printing Press. This witness has been examined to show that the railway warrants are printed in the Gaya Printing Press. In the chief, this witness states that the 16 railway warrants have not been printed at Gaya Press for the reason that the code number of the Gaya Press has not been printed on the warrants. It is alleged that there are spelling mistakes in the warrants, the length and the breadth of the warrants is also not in accordance with the warrants printed at Gaya Press. According to this witness, there are printing errors in the warrants and the format which has been utilized is also not the same as the one which is utilized by the Gaya Press. This witness in his chief states that the warrants which are marked as `X’ to `X/15’ for identification could be mistaken to 12 be the original warrants by any person and further states that the Investigating Officer had not taken specimen of the original railway warrants during the investigation. In the cross-examination, he reiterates the fact that warrants was not submitted to the Investigating Officer and he has not brought the original warrants to mark exhibit before the court. At paragraph 7, this witness states that original warrant reads as `BHINN TARIKE SE NAHIN HOTI HAI’. This witness is not very useful for the prosecution as he is the only witness who could have pointed out the differences in the original railway warrants and the warrants which had been seized and were marked `X’ to `X/15” if he had produced an original warrant printed by Gaya Printing Press. PW 2 Prem Kumar Sinha was posted as the Assistant Sub-Inspector, Special Branch, Patna between year 1977 to 1989. He has deposed that Mr. N. N. Sinha was Incharge of maintenance of register of railway warrants. The aforesaid Mr. Sinha has retired and has, therefore, not come to depose. He has stated that the railway warrants are not genuine as the page number is not correct and they contain six digits. In the cross-examination, this witness has stated that the dispatch register and receipts of the year 1977 to 1989 have not been produced in Court and, therefore, he cannot give details regarding when the said warrants were issued. He further states that the general railway forms have 13 not been given to the Central Bureau of Investigation although the stamps between 1977 to 1989 have been submitted before the Central Bureau of Investigation. He further states that warrants X to X/11 are not forged and that a lay man on a look at these warrants would not be able to decipher that the warrants are forged ones. In his cross-examination, he also states that he cannot say whether three-digits are printed on the railway warrants. The requisition sent to the Gaya Press is also not with him which would indicate whether warrants have been issued to the Gaya Press. Pranav Kumar Biswan, PW 3 was the Head Booking Clerk at the relevant period. In his evidence, he has stated that Surendra Jha was Relieving Commercial Clerk at Saharsa, Naresh Sharma was the Booking Clerk, Narendra Prasad Verma was the Head Booking Clerk, Vidyanand Jha and Rahmat Hussain were also the Head Booking Clerks. At paragraph 2, this witness has stated that he knows the procedure in which railway warrants are issued. Railway warrants are in two copies; one portion is given to the police party who is traveling and the second part is sent to the Cash Office, Samastipur. Railway printed card tickets are issued against the railway warrants. The tickets are issued and noted in the B.P.T. Register. The B.P.T. Register is maintained by the Booking Clerk. Thereafter, this witness goes on to identify the handwriting of each of the appellants on the warrants as well 14 as on the tickets issued and these have been marked as Exhibit 1 to 7. This witness at paragraph 15 states that the ticket entry is made in the DTC book and identifies the various ticket numbers which have been noted in the DTC book and also identifies the handwriting of the person who has made the entry. These have been marked as Exhibit 2 to Exhibit 2/19. At paragraph 39, this witness states that he has performed the work of Booking Clerk and also states that he has had no departmental training which would have helped him to identify genuine warrants. According to this witness, the police warrant number is noted in the Cash Remittance Note (C.R. Note). He states that he received the warrants and they appeared to be genuine and therefore, they were sent to the Cash Office at Samastipur. There was no objection from the Cash Office at Samastipur with respect to the warrants in question. This witness is also the person who has identified the handwriting of the appellants on the attendance register and claims to know and identify the writings of all these appellants. This witness is the most important witness as he is the person who had identified the handwriting of the appellants on the warrants which have been proved by him as Exhibit 4 series. As per analysis, it would appear that the charges would fail as there is a difference in the charges and the identification made by PW 3 on the 16 warrants which are the subject matter of this case. 15 PW 4 has proved the sanction order which has been marked Exhibit 20 series. PW 5 was posted as the Assistant Commercial Manager –cum- Divisional Manager in the Railways. According to this witness, the warrant presented for issuing the ticket has to be checked on the booking counter to see (i) whether the warrant contains the machine number, (ii) Whether the seal should be at the correct place, (iii) Whether the signature of the concerned Officer is on the warrants in question, (iv) whether the entry in columns 1 to 4 has been correctly stated, (v) whether the columns 5 to 7 have been filled in by the Booking Clerk. According to this witness, the warrants are issued from the Office of the General Manager. This witness described the procedure for issuing tickets against the warrants and refers to the various rules regarding the procedure. At paragraph 11, PW 5 specifically states that he does not know the appointing authority of the Booking Clerks. PW 6 has proved the attendance register dated 01.10.1986 to 30.09.1988 containing 79 pages. The handwriting of appellant Rahmat Hussain has been marked as Exhibit 21/1 to 21/5; daily ticket cash book between 21.07.1988 to 31.07.1988 has been marked as Exhibit 22 and the relevant part, which contains the handwriting of Nagendra Verma are marked as Exhibit 21 to 21/7; daily cash book dated 11.08.1986 to 20.08.1988 containing 243 pages 16 has been marked Exhibit 23 and the handwriting of N.P. Verma is marked as Exhibit 23/1, DTC Book is marked as Exhibit 24 and pages 41, 71, 81, 171 contained the handwriting of Shailendra Jha whereas pages 121 column 13 contains the handwriting of Nagendra Verma which have been marked as Exhibit 24/5. The DTC Book is marked as Exhibit 25 whereas page 47 column 7 dated 2.7.1988 and column 7 page 63, column 7 page 147 containing the signature of N. P. Verma are marked as Exhibit 25/1 to 25/6. The evidence of this witness at paragraph 13 is relevant as he states that if there is any irregularity or discrepancy, the Cash Office informs the Station Master, and further goes on to say that no such report of irregularity was received by the Station Master. Therefore, this witness is only relevant for the purpose of proving the various exhibits mentioned aforesaid and also for the statement that he has made at paragraph 13. PW 7 was posted as T.I.A. at Gorakhpur. According to him, he was authorized to make enquiry with respect to the 16 warrants which were allegedly forged and fabricated. The order to make such an enquiry has been marked as `Y’ for identification. This witness went to AIG, Wireless, Patna to make enquiries. The AIG of Patna wrote a letter to him which is marked `Y/1”for identification. Much emphasis has been placed on the document Y/1 by the prosecution which will be discussed later. It is very relevant 17 when this witness states that he could not make any enquiry at all with respect to the sub-station from where the warrant was issued or with respect to the signatures etc. on the warrant as the case was taken over by the Central Bureau of Investigation. PW 8 was the first Investigating Officer in this case. He had signed on the First Information Report and had also prepared the seizure list. The signature on the seizure list has been identified and marked as Exhibit 28 & 28/1 whereas the seizure list has been marked as `Z’ for identification. The evidence of this witness is not very relevant as apart from recording the First Information Report and preparing the seizure list, he has made no further investigation in this case. The last witness to be examined in this case is PW 9 the Assistant Survey Intelligence Officer, Grade-I who was the Investigating Officer in this case. The evidence of this witness does not help the prosecution in any manner whatsoever. According to this witness, he had sent the specimen handwritings of the appellants to the handwriting expert. He also proves Exhibit 30 to 32/1 which are the specimen handwritings of the appellants. It is very interesting to note that at paragraph 7, he has stated that he was working as Lower Division Clerk in the Central Bureau of