Delhi High Court

Anupam Rajan vs State (C.B.I.) on 18 May, 2011

Author:
Vipin Sanghi

Bench:
Vipin Sanghi

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 05.05.2011

% Judgment delivered on: 18.05.2011

+ CRL. REV. P. NO.270 /1999

ANUPAM RAJAN ..... Petitioner
Through: Mr. D.C. Mathur, Senior Advocate,
with Mr. Mohit Mathur, Advocate.

versus

STATE (C.B.I.) ..... Respondent
Through: Mr. Vikas Pahwa, Addl. P.P. with
Mr.Saurabh Soni, Advocate.

CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers may
be allowed to see the judgment? : No

2. To be referred to Reporter or not? : Yes

3. Whether the judgment should be reported
in the Digest? : Yes

JUDGMENT

VIPIN SANGHI, J.

1. This Criminal Revision Petition has been preferred under

Sections 397,401 read with 482 of the
Code of Criminal Procedure
to

seek the setting aside of the orders dated 10.05.1999 and 06.07.1999

passed by the Ld. MM in FIR No.RC 4(S) / 93-SIU-(II)-CBI, whereby he

directed framing of charges against the petitioner and the co-accused

Crl. Rev. P. No.270 /1999 Page 1 of 40

Shri Ashraf Jamal-the petitioner in connected Crl. R.P. No.399/2009, for

substantive offences under
sections 420
,
and
IPC and also for

conspiracy under
sections 120B
read with
sections 420
,
and
IPC; and further framed the charges too.

2. Arguments had been heard and judgment reserved in this

petition and Crl. Rev. Pet. No. 399/1999, initially on 21.05.2010.

However, the judgment could not be pronounced within a reasonable

period of time due to the heavy work load. Consequently , these cases

were listed again and the counsels were heard again.

3. Case of the prosecution as disclosed in the charge sheet is

that Sh Anupam Rajan appeared in the Civil Services (Preliminary)

Examination, 1993 held on 13th June 1993, even though he, on the

basis of the result of 1992 examination announced on 3.6.93, had been

selected for appointment to the IAS, securing 52nd position in the merit

list, in order to help his friend and co-accused Shri Ashraf Jamal, who

also appeared in the said examination. According to the charge sheet,

on scrutiny of the examination documents, the UPSC found a clear

nexus between Sh Anuam Rajan (Roll No.169758) and Sh. Ashraf Jamal

(Roll No.169757) to the extent that both swapped their answer sheets

and Shri Anupam Rajan wrote the examination for Shri Ashrat Jamal in

sociology paper, who ultimately passed the examination, whereas Shri

Anupam Rajan did not even qualify. UPSC also found obliteration in

Roll No. in the answer sheets of both of them.

Crl. Rev. P. No.270 /1999 Page 2 of 40

4. According to the prosecution, during investigation it was

ascertained that both Shri Anupam Rajan and Shri Ashraf Jamal belong

to Daltonganj, Bihar and were friends of long standing. Both were

studying in JNU as Boarders during 1993. Both of them were aspirants

for Civil Services and appeared in C.S. examination conducted by the

UPSC in 1992 as well as in 1993.

5. According to the prosecution, Shri Anupam Rajan sent an

application form on 3.2.93 to UPSC duly filled in for appearing in CS

(Preliminary) Examination, 1993 from Daltonganj, Bihar, offering Patna

as the Centre for the examination. The application was received at

UPSC on 8.2.93 and was allotted Roll No.041998. Thereafter, Shri

Anupam Rajan, while living in Satluj Hostel, JNU, New Delhi, again filled

up the application, for the same examination. Both offered Sociology

as optional subject and Delhi as Examination Centre. On 22.2.93, both

Shri Rajan and Shri Jamal handed over their applications to their friend

and co-boarder Shri Manoj Kumar, who was going to UPSC to deposit

applications of many JNU boarders for CS(P) Exam, 1993. Shri Manoj

Kumar deposited in UPSC the applications of many boarders including

those of Shri Rajan and Shri Jamal. Shri Anupam Rajan and Shri Jamal

were allotted consecutive Roll Nos.169758 and 169757 respectively,

and the same sub-centre, i.e. Govt. Girls Sr. Sec. School No.1, Sarojini

Nagar, New Delhi. On 13.6.93, both Shri Rajan and Shri Jamal

appeared in the examination in Room No.13 of the said School,

occupying adjacent seats as they had been allotted consecutive roll

numbers.

Crl. Rev. P. No.270 /1999 Page 3 of 40

6. Shri Ashraf Jamal had also appeared in CS(P) Examination,

1992 but could not qualify. His optional subject was Sociology with

compulsory subject as General Studies, although, Sociology was never

his subject during academic career.

7. The Civil Services (P) Examination was slated on 13.6.1993 in

sub-centre No.082 at Govt. Girls Senior Secondary School No.1, Sarojini

Nagar, New Delhi where 15 rooms were earmarked, including Room

No.13 for conducting the said examination. In Room No.13 of the

Centre, the seating arrangement for 24 candidates was arranged in

four rows with 6 candidates in each row. The examination was to be

held in two sessions of the day, i.e. from 9:30 a.m. to 11:30 a.m. being

the first session meant for option subjects, and from 2:30 p.m. to 4:30

p.m., being the second session meant for compulsory subject, i.e.

General Study. The candidates, namely, Anupam Rajan and Ashraf

Jamal were allotted seats in Room No.13 along with other candidates.

Most of them hailed from the State of Bihar. Mrs. Neera Sharma,

Section Officer, Min. of Agriculture and Mrs. T. Bannerjee, a school

teacher were deputed as invigilator and co-invigilator respectively in

Room No.13. Shri P. Parmeshwaran was the Superintendent of the

examination in the said Centre.

8. According to the prosecution, during CS(P) Examination, 1993,

Shri Anupam Rajan got question booklet of C-series whereas Shri

Ashraf Jamal got of B-series in optional subject (Sociology). After

completion of the examination, the candidates were allowed to take

Crl. Rev. P. No.270 /1999 Page 4 of 40

the question booklets with them. During searches from the premises

of Ahraf Jamal, his question booklet has been recovered. The

Sociology answer sheet submitted under roll number of Anupam Rajan

bears printed serial number 3789408 and the serial number of Ashraf

Jamal‟s answer sheet was 3789409.

9. UPSC has confirmed that Anupam Rajan secured 79 marks in

General Studies out of 150 marks and 230 marks out of 300 marks in

Sociology (Optional subject) during CS(P) Examination of 1992,

whereas Ashraf Jamal had secured 27 marks in General Studies and

147 marks in Sociology, i.e., Anupam Rajan was way ahead in 1992,

but in 1993, the scores have undergone a diametric change and

Anupam Rajan got only 160 marks in total, against Ashraf Jamal‟s total

of 271. This, according to the prosecution, suggests exchange of

answer sheets.

10. As mentioned earlier, according to the prosecution, there

were four rows for the candidates taking the examination in Room

No.13 of Sub-centre No.082 and in each row there was sitting

arrangements for six candidates. In one of the rows, seats were

occupied by Hema Rajora, R.N. Acharaya, Ashraf Jamal, Anupam Rajan,

Manoj Kumar and P.C. Mahapatra. In ordinary course, the answer

sheets should have been distributed according to serial number.

However, this is not found in the case of Shri Ashraf Jamal and Anupam

Rajan. The candidate Hema Rajora was absent in Sociology paper,

whereas R.N. Acharaya got answer sheet No.3789407, who was sitting

Crl. Rev. P. No.270 /1999 Page 5 of 40

ahead of Ashraf Jamal. Ashraf Jamal should have got answer sheet

No.3789408 and Shri Rajan (who was seated behind Sh. Ashraf Jamal)

should have got answer sheet No.3789409, whereas Ashraf Jamal has

received answer sheet No.3789409 and Anupam Rajan received

3789408. According to the prosecution, this shows that serial nos. of

the answer sheets in respect of the two accused persons were

exchanged.

11. The questioned writings existing in the title entries of the

answer sheets of both Anupam Rajan and Ashraf Jamal, i.e. „Delhi‟,

„Sociology‟, Roll No.169758 & 169757 alongwith the admitted writings

were sent to CFSL for comparison and opinion. The handwriting expert

has opined that the writings in the title entries on the answer sheet

No.3789409 (belonging to Shri Ashraf Jamal) have been written by Shri

Anupam Rajan and the title entries on the answer sheet No.3789408

(belonging to Shri Anupam Rajan) have been written by Shri Ashraf

Jamal, meaning thereby that Shri Anupam Rajan solved the question

paper of Sociology for Shri Ashraf Jamal in the CS(P) Examination, 1993

and Shri Ashraf Jamal solved the questions for Shri Anupam Rajan. As

a result, Ashraf Jamal could qualify for CS(Main) Examination, 1993

whereas Anupam Rajan did not. Expert has also confirmed overwriting

in the roll nos. of these two persons on the concerned answer sheets

and use of erasure in encoding the booklet series by invigilator of the

answer sheet of Shri Anupam Rajan.

Crl. Rev. P. No.270 /1999 Page 6 of 40

12. According to the prosecution, the aforesaid facts and

circumstances disclose that both Anupam Rajan and Ashraf Jamal

entered into a criminal conspiracy to cheat the authorities of Union

Public Service Commission and pursuant to it both cheated UPSC by

forging the answer sheets of C.S. (P) Exam., 1993 and using the same

as genuine and thereby they committed offences punishable under

Sections 120-B
r/w 420, 468 & 471
IPC
and substantive offences under

Sections 420
,
&
IPC.

13. The Learned Magistrate heard the arguments of the

prosecution and the defense on the point of charge, and vide the

impugned order dated 10.05.1999 directing the framing of charges

against the petitioner and the co-accused Shri Ashraf Jamal, which he

eventually framed on 06.07.1999. The present revision petition

impugnes the aforesaid two orders and seeks the quashing of the

same.

Petitioner's submission

14. The petitioner Shri Anupam Rajan submits that he did not

appear in 1993 to collude with the other candidate, namely Ashraf

Jamal and to help him in his paper. His only purpose was to improve his

own rank in the IAS cadre. It is a common practice amongst the

candidates aspiring for Civil Services, to repeat the exam in order to

improve their position in the merit, which is only possible in the

immediate next year‟s examination, without any gap. Therefore no

inference of a criminal conspiracy can be made out in his case.

Crl. Rev. P. No.270 /1999 Page 7 of 40

15. Petitioner further submits that there exists no independent

evidence or circumstance to come to the conclusion that: reasonable

grounds exist to believe the commission of the offences of which the

petitioner is accused. Mere association of persons is not culpable

enough for making out an offence as grave as criminal conspiracy.

16. The petitioner submits that the Ld. Trial Court has relied

heavily on the fact that the petitioner was allotted a Roll Number

immediately after that allotted to the co-accused Ashraf Jamal. It is

clearly borne out from D-27 (I) and D-27 (II) that the application forms

of the petitioner and the co-accused were not submitted in seriatim.

Roll numbers are allocated to candidates by the UPSC and there is a

procedure, which ensures that there is no scope for securing any

predetermined roll number to any candidate. Further, the seating plan

for the examination is only known once the candidates enter the

examination hall.

17. Petitioner submits that the petitioner could not have entered

into any sort of a conspiracy on 22.2.1993, as the results of Civil

Services (Main) Examination of 1992 were not even out by then.

Further, interviews were still pending and the sifting of the candidates

at these two stages, results in only about 5-7% of the candidates who

appear for the preliminary examinations reaching the final list of

selected candidates. By reference to D-10, the press note dated

02.06.1993 issued by PIB, he submits that the number of vacancies

notified for the Civil Services (Main) Examination, 1992 were subject to

Crl. Rev. P. No.270 /1999 Page 8 of 40

revision. Therefore, even after securing the 52nd position, the

petitioner Anupam Rajan could not be sure of ultimately being

allocated a service of his choice in the Indian Administrative Service.

After this, is stage of service allocation, which took place only on

14.08.1993 (D-18), i.e. after the conduct of the 1993 preliminary

examination on 13.06.1993. It is argued that unsure of his own result

and future career, how could the petitioner enter into a conspiracy for

benefiting someone else?

18. Petitioner further submits that the prosecution has relied

heavily on the fact that there has been a considerable improvement in

the performance of the co accused Ashraf Jamal in the Sociology paper

in 1993 vis-à-vis his performance in the 1992 examination. It is

pointed out that while the performance of the co accused Ashraf Jamal

in the Sociology paper improved by only 35% in 1993, there was an

improvement of 166% in the General studies paper. Both these paper

need to be cleared to clear the preliminary examination, and there is

no suggestion from the prosecution that there was any kind of

assistance rendered by the petitioner to the co accused in the General

Studies paper. He further submits that in the scheme of subjects for

the UPSC preliminary examinations, literature subjects cannot be

opted. Hence, it would be incorrect on the part of the prosecution to

allege that the co-accused Ashraf Jamal, who was a student of Urdu

Literature, chose to appear in Sociology, because of a conspiracy

between him and the petitioner. The co accused had, in fact, chosen

Crl. Rev. P. No.270 /1999 Page 9 of 40

sociology as his subject in the 1992 examination as well, and secured

147 marks out of 300 in 1992.

19. The petitioner also relies on statement of Shri Karan Singh

(PW-11), Section Officer (confidential) UPSC dated 18.01.1994 to assail

the observations made in the impugned order as not being accurate. It

is argued that the trial Court has proceeded on a wrong premise that

Ashraf Jamal had scored 271 out of 300 in the Sociology paper. The

fact is, (as disclosed from Document D-6) that the score of 271 was the

aggregate of both the Sociology and General Studies papers out of

450. According to the petitioner, this shows non-application of mind

by the learned Metropolitan Magistrate.

20. Mr. Mathur has also referred to the sitting plan (D-35) of Room

No.13, where the petitioner and Shri Ashraj Jamal were seated. He

submits that the answer booklets were distributed randomly as stated

by Ruchita Sahai in her statement recorded on 02.02.1994 and also

seen from D-35. He submits that there is no basis to proceed on the

assumption that the petitioner Anupam Rajan should have got answer

sheet no.378409 and that Ashraf Jamal should have got answer sheet

no.378408, as the answer sheets were not distributed in seriatim. He

refers to the answer sheet numbers of various other candidates sitting

in the same room to show that they were not given in seriatim.

21. Mr. Mathur further submits that it is not even the allegation of

the prosecution that the petitioner Anupam Rajan and Ashraf Jamal

also swapped their respective question papers. Both these candidates

Crl. Rev. P. No.270 /1999 Page 10 of 40

were having different set of question papers. Shri Ashraf Jamal was

given Series-B question paper, whereas Shri Anupam Rajan was given

Series-C question paper. Without the swapping of the question papers,

and by merely swapping the answer sheets, the petitioner could not

have possibly solved the question paper given to Ashraf Jamal. He

further submits that Ruchita Sahai on whose alleged complaint the

case was started, has not supported the case of the prosecution.

22. Mr. Mathur submits that the entire case of the prosecution is

founded upon the opinion of the handwriting expert and the said

opinion is of no avail without positive corroboration. Even if it is

assumed that the answer sheets were indeed exchanged, that by itself,

does not tantamount to forgery or cheating. There is no basis to

conclude that the petitioner had answered the question paper of

Ashraf Jamal and vice versa. He submits that the swapping of the

answer sheets could have taken place only before 9.30 a.m and not

thereafter.

23. Mr. Mathur submits that the right of the petitioner to appear

in the Preliminary Examination in 1993 is admitted by PW 19.

Petitioner submits that the learned Trial Court also presumes that the

petitioner was not serious in his attempt in the 1993 Civil Services

(Preliminary) Examination, else he would have improved his result and

secured better marks as compared to the previous year. This

circumstance, according to the petitioner, cannot be construed to be

indicative of culpability. It is common knowledge that several students

Crl. Rev. P. No.270 /1999 Page 11 of 40

who try improving their position in the subsequent year fail to do so.

This can never be an incriminating circumstance.

24. Petitioner submits that the order on charge is based upon

baseless conjectures, and the Ld. Trial Court is unjustified in forming

the opinion that the answer sheets may have been exchanged even

after the attendance sheets were filed. The uncertainty and vagueness

of the charge itself is sufficient ground for quashing the same.

Reliance is placed on
Sarbans Singh & Ors. v. State of NCT of

Delhi
116 (2005) DLT 698;
L.K.Advani v. Central Bureau of

Investigation
1997 CRI.L.J 2559; and on Rukmini Narvekar v.

Vijaya Satardekar & Ors. IV (2008) CCR 426 (SC).

25. The petitioner submits that the opinion of the Handwriting

Expert in his report further requires positive corroboration, without

which, it is of no avail. Ruchita Sahai, on whose alleged complaint the

investigation was started, had stated in her statement dated

02.02.1994 that she did not notice any act of swapping of answer

sheets or question booklets, and therefore, she has not supported the

case of the prosecution. She also disowned the anonymous complaint

against the petitioner. Reliance is placed on
Smt. Bhagwan Kaur v.

Shri Maharaj Krishan Sharma and Ors.
1973 SCC (cri) 687;
State

of Maharashtra v. Sukhdeo Singh and Anr.
AIR 1992 SC 2100, and

Sukhvinder Singh and Ors v. State of Punjab (1994) 5 SCC 152.

26. It is argued that the FIR in the present case was filed on the

basis of an anonymous letter received by the Chairman of UPSC stating

Crl. Rev. P. No.270 /1999 Page 12 of 40

that the petitioner herein had appeared for the IAS Preliminary Exam,

1993 just to help his friend, since the petitioner had already secured

52nd rank in the 1992 IAS Mains Exam. Petitioner submits that there

was no mens rea on part of the petitioner to commit any forgery or

conspiracy. Mens rea being an important ingredient to establish the

culpability, which is absent in the present case, it can be said that no

such alleged offence was committed. Deriving force from the decision

Jibrial Diwan v. State of Maharashtra
1997 SC 3424, where the

Supreme Court was of the opinion that where nobody was put in any

disadvantageous position or no wrongful gain was caused to anybody

nor wrongful loss was caused by appellant's action the appellant

should be acquitted, Mr. D.C. Mathur submits that similarly in the

present case, no offence under
Sections 417
,
and
of the IPC

can be made out and therefore, the petition be allowed.
Reliance is

also placed on Parminder Kaur v. State of U.P, JT 2009 (13) SC507.

27. Mr. Mathur also refers to the decision in Dr. Vimla Vs. Delhi

Administration, AIR1963SC1572 wherein the court examined the

ingredients of the offence of fraud under
section 468
of the IPC and

had held that deceit forms an important part of that offence. To justify

a charge for the offence under
section 468
IPC, intention to defraud

under
section 25
IPC needs to be present. He submits that in this case,

there is no evidence of any deceit on part of the petitioner, and so no

culpability for the offence, as alleged, lies herein.
Similarly in

Devander Kumar Singla v. Baldev Krishan Singla
2005 (9) SCC

15, the court while deciding a case of
section 420
of the IPC concluded

Crl. Rev. P. No.270 /1999 Page 13 of 40

that the alleged offence was not made out as there was no property

delivered. Therefore, there was no material to say that there was

deceit, and the accused was acquitted.
Mr. Mathur also places reliance

on Mohd. Ibrahim v. State of Bihar, (2009) 3 SCC (CRI) 929 to

submit that there is no false document created and there is no forgery

even if it is assumed that the petitioner and Ashraf Jamal had

exchanged their answer sheets, as, according to the petitioner, the

petitioner had solved the question booklet Series-C and Sh. Ahsraf

Jamal had solved the question booklet Series-B.

28. Mr. Mathur submits that this Court should examine the pleas

raised by the petitioner in light of the judgment of the Supreme Court

in
Paul George v. State
, AIR 2002 SC 657, wherein the Supreme

Court has held that the order disposing of the criminal revision

preferred by the appellant must indicate application of mind to the

case, and some reasons should be assigned for negating or accepting

the pleas. Mere ritual of repeating words or language used in the

provision, that there is no illegality, impropriety or jurisidictional error

in the judgment under challenge, without even a whisper on the merits

of the matter or nature of pleas raised does not meet the requirement

of a decision being judicious.

29. Concluding his submissions, Mr. Mathur submits that the High

Court (as a Revisonal Court) is not handicapped or powerless from

examining the material placed by the Respondent along with the

charge sheet. The alleged writings may give rise to some suspicion,

Crl. Rev. P. No.270 /1999 Page 14 of 40

but definitely not "strong suspicion", so as to invite framing of the said

criminal charges. He urges that this court should use its inherent /

supervisory powers to quash the charges and discharge the petitioner,

who has suffered since 1993, i.e. for 6 years before the charges were

framed, and thereafter again for over 10 years while this revision has

remained pending.

The petitioner has submitted his written submissions and synopsis of

written arguments on the aforesaid lines.

Respondent's submissions

30. Mr. Vikas Pahwa, the learned Additional Public Prosecutor

submits that the fact that both the accused, namely Anupam Rajan

and Ashraf Jamal belong to Daltonganj (Bihar) and are old friends; both

were studying at JNU as boarders in the same Sutlej Hostel during

1993; both of them were also Civil Services aspirants and appeared for

the said examination in 1992 as well as 1993, establishes a nexus

between the two people.

31. He submits that in 1992 C.S. (P) Exam, Ashraf Jamal‟s

performance was very poor as he scored 147 marks in his Sociology

paper. But in 1993, he secured 199 marks as against the petitioner

who had scored 239 marks in Sociology in the year 1992, but scored

160 in the 1993 exam. As expected, Ashraf jamal qualified in the 1993

exam, but the petitioner could not. This suggests that the answer

sheets were exchanged between the two of them. He submits that, in

the charge that the petitioner exchanged the answer sheet and solved

Crl. Rev. P. No.270 /1999 Page 15 of 40

the question paper for Ashraf Jamal, is implicit the charge that he also

exchanged the question paper with Ashraf Jamal by taking the „B‟

series question paper from Ashraf Jamal and giving him his own „C‟

series question paper.

32. It is also contended that the petitioner had previously

appeared in the 1991 exam too where he had secured 565 rank. So he

appeared again in 1992 to improve his rank, which he did do by

securing 52nd rank in his 1992 exam. Therefore, there existed no

reason for appearing again for improvement of rank, as alleged by the

petitioner. For the 1992 examination, the vacancies advertised for the

general category were 61, and the petitioner having secured 52nd rank

had a very bright chance of getting the Indian Administrative Service.

He again appeared for the said exam in 1993, and the only inference

that can be drawn is that this was done to collude with his friend,

Ashraf Jamal to help him qualify the said exam in 1993. Else, he would

have taken the said examination seriously and would have attempted

the question papers fully, which he failed to do. He submits that the

petitioner‟s contention that he sat in the 1993 exam to improve his

rank, is not borne out by his performance, as compared to that of his

friend, Ashraf Jamal. He attempted only 73 questions out of 150 in his

General Studies paper, whereas Ashraf Jamal attempted 150 out of 150

questions. Hence, it will not be correct to say that the petitioner sat in

1993 exam just to improve his rank. His conduct does not support his

plea and rather belies the same.

Crl. Rev. P. No.270 /1999 Page 16 of 40

33. It is further submitted that Anupam Rajan had applied for the

1993 exam from Bihar on 29.01.1993. This form was received in the

UPSC office on 08.02.1993 and he was allotted a roll number 041998.

But he again applied on 22.02.1993 with his friend Ashraf Jamal from

Delhi and managed to get consecutive roll numbers in the same

center.

34. It is argued that though Anupam Rajan had done his Masters

in Sociology and, therefore, his opting for Sociology in the IAS Exam

made sense, Ashraf Jamal had never studied Sociology, but still opted

for it in his attempts both in 1991 and 1992.

35. Mr. Pahwa draws the attention of the court to the statement

of the first invigilator, that is, PW 4, wherein she stated that she did not

go back to check whether candidates filled in the correct details in the

answer sheet. So, it is probable that the petitioner and his friend Ashraf

Jamal filled the details for each other so as to make the swapping of

answer sheets go unnoticed.

36. Mr. Pahwa submits that a conspiracy is an inference drawn

from the circumstances. There cannot always be much direct evidence

about it. The conspiracy can be inferred even from the circumstances

giving rise to a conclusive or irresistible inference of an agreement

between two or more persons to commit an offence. Since conspiracy

is often hatched in utmost secrecy, it is almost impossible to prove

conspiracy by direct evidence. It has to be inferred from the acts,

statements and conduct of parties to the conspiracy. Thus if it is

Crl. Rev. P. No.270 /1999 Page 17 of 40

proved that the accused pursued, by their acts, the same object, by

the same means, one performing one part of the act and the other

another part of the same act so as to complete it with a view to

attainment of the object which they were pursuing, the court is at

liberty to draw the inference that they conspired together to achieve

that object. Conspiracy has to be treated as a continuing offence and

whosoever is a party to the conspiracy, during the period for which he

is charged, is liable under this section. Motive and economic loss are

not a sine qua non for proving an offence of criminal conspiracy. If the

evidence as to the actual commission of crime is believed, then no

question of motive remains to be established.

37. It is submitted that the petitioner and Ashraf Jamal have

cheated UPSC by swapping the answer sheets of Sociology Exam,

between 9.30 a.m to 11.30 a.m in Room No.13 which ultimately

enabled Ashraf Jamal, to qualify CSE (Preliminary) and making him

eligible for Civil Services (Main) examination. Thus the act of swapping

the answer sheets deceived and induced UPSC to grant him higher

marks, which Ashraf Jamal would not have secured had there been no

swapping of answer sheets.

38. Cheating is deception of any person by fraudulently or

dishonestly inducing that person to deliver any property to any person

or to consent that any person shall retain any property. Cheating is

intentionally inducing a person to do or omit to do anything which he

would not do or omit if he was not so deceived.

Crl. Rev. P. No.270 /1999 Page 18 of 40

39. The petitioner and Ashraf Jamal have deceived the

UPSC/Invigilator by misrepresenting that the answer sheets have been

written/marked by them, as contemplated by the UPSC Civil services

(P) Examination 1993, and have dishonestly and fraudulently induced

the UPSC to give Admission Certificate of passing the CSE (P) 1993 to

Mr. Ashraf Jamal, although the answer sheets were swapped and were

forged, by writing exams for each other. The Property as

contemplated in
section 415
and
IPC is the Admission Certificate of

Passing CSE Preliminary 1993 issued by UPSC.

40. Deceiving means causing to believe what is false or

misleading as to a matter of fact, or leading into error. Whenever a

person fraudulently represents as an existing fact, that, which is not an

existing fact, he commits this offence. A willful misrepresentation of a

definite fact with intent to defraud is cheating. Intention is the gist of

the offence. The intentions at the time of offence and the

consequences of the act or omission itself have to be considered. The

damage may be the direct, natural or probable consequences of the

induced act.

41. The essential ingredients of the offence under
Sections
/
/
of the IPC necessarily entail mens rea; the intention has

to be gathered from the circumstances built up of the case; the offence

of cheating consists of a dishonest inducement as contained in the

definition of
Section 415
of the IPC; to constitute the offence of

cheating it has to be established that the Accused deceived the

Crl. Rev. P. No.270 /1999 Page 19 of 40

complainant dishonestly inducing him to part with any property in his

favour which he would not have parted but for the deception played on

him.

42. The petitioner and Ashraf Jamal while cheating the UPSC and

the Invigilator have committed the offence of Forgery, by swapping the

Answer sheets, and writing (Roll number, Delhi, Sociology) in the

answer sheets for each other and in also solving the question paper for

each other, with an objective of helping Ashraf Jamal in CSE (P) 1993 in

the paper of Sociology and thus inducing the invigilator to believe that

both of them have solved their own respective answer sheets.

43. Forgery is making of a false document or part of it. Such

making should be with intent to support any claim or title or to cause

any person to part with property, or to enter into any express or

implied contract or with intent to commit fraud or that fraud may be

committed. To constitute forgery, simple making of a false document

is sufficient. The offence of forgery is complete if a false document is

made with intent to commit a fraud. Where there is an intention to

deceive and by means of the deceit to obtain an advantage there is

fraud and if a document is fabricated with such intent, it is a forgery.

An actual intention to convert an illegal or doubtful claim into an

apparent legal one is dishonesty and will amount to forgery. The term

"claim" is not limited in its application to a claim to property. It may

be a claim to anything. The damage or injury must be intended to be

caused by the false document to the public or any individual.

Crl. Rev. P. No.270 /1999 Page 20 of 40

44. The petitioner has made a false document, by dishonest and

fraudulent intention, to make the UPSC believe that the document

(Answer Sheet) has been made by Ashraf Jamal although he knew that

the response in the Answer sheet has not been made by him.

45. The opinion of the hand writing expert D-36, D-39 and D-43

were given on 29.3.1994, 21.12.1994, 23.12.1994 bearing No.94/D-

146, wherein it was opined by the hand writing expert that the title

entries in the answer sheets of Ashraf Jamal were written by Anupam

Rajan and vice versa. The Roll No‟s which were given to both the

petitioners were consecutive i.e. 169757 and 169758. It was further

opined by the hand writing expert that the last digit of the roll no‟s in

both the cases were initially erased and later on the same were

rewritten. The answer sheets which were given to both the petitioners

were bearing no.3789408 and 3789409. Thus from the opinion of the

hand writing expert it is crystal clear that both-the petitioner and

Ashraf Jamal indulged in cheating during the examination.

46. The handwriting expert opinion sought by the CBI is not only

on the basis of the Specimen Handwriting, but also the admitted

handwriting of the accused persons. The trial court, however, in terms

of
section 73
Evidence Act can satisfy itself about the handwriting of

the accused either by telling the accused to write the words in the

court, or to obtain a fresh opinion of the expert.

47. He relies on
Nrisingha Murari Chakraborty and Ors. Vs.

State of West Bengal
(1977) 3 SCC 7, where the question was

Crl. Rev. P. No.270 /1999 Page 21 of 40

whether passports were „property‟ within meaning of Section 420. The

Apex Court observed that passport being a tangible thing was a useful

document and could be subject of ownership or exclusive possession

and therefore it is „property‟ within meaning of
Sections 415
and
IPC.

48. He relies on the definition of the word "property", as defined

in the Century Dictionary- "the right to the use or enjoyment or the

beneficial right of disposal of anything that can be the subject of

ownership; ownership; estate; especially, ownership of tangible

things...; anything that may be exclusively possessed and

enjoyed;...possessions."

49. He also relies on the decision in
Abhayanand Mishra v.

State of Bihar
, 1961 CriLJ 822. The appellant there applied to the

Patna University for permission to appear at the M. A. examination as a

private candidate, representing that he was a graduate having

obtained the B. A. degree in 1951 and had been teaching in a school.

On that basis, an admission card was despatched for him to the

Headmaster of the school. It was however found that he was neither a

graduate nor a teacher. He was prosecuted for the offence under

Section 420 read with Section 511 of the Penal Code. He contended

that his conviction was unsustainable because the admission card had

no pecuniary value and was not property. The Court repelled the

contention, and held that although the admission card as such had no

pecuniary value, it had immense value to the candidate appearing in

Crl. Rev. P. No.270 /1999 Page 22 of 40

the examination for he could not have appeared at the examination

without it, and that it was therefore property within the meaning of

Section 415 of the Penal Code.
While reaching that conclusion, the

Court relied on Queen Empress v. Appasami, ILR (1889) 12 Mad 151

and Queen Empress v. Soshi Bhushan, ILR (1893) 15 All 210. In

Appasami's case it was held that the ticket entitling the accused to

enter the examination room was "property", and in Soshi Bhushan's

case it was held that the term "property" included a written certificate

to the effect that the accused had attended a course of lectures and

had paid up his fees. On a parity of reasoning, the Court observed that

it had no doubt that looking to the importance and characteristics of a

passport, the High Court rightly held that it was property within the

meaning of Sections 415 and 420 of the Penal Code.

50. Deriving force from the above authorities, Mr. Pahwa submits

that the admission card of the petitioner is "property", which he did

utilize with an intention to defraud. According to the respondent,

culpability under section 415 and 420 is established.

51. Mr. Pawha lastly submits that at the initial stage of framing of

charges under
section 227
and
of CrPC, the truth, veracity, and

the necessary effect of the evidence, which the prosecution proposes

to prove, is not required to be meticulously judged by the Ld. Trial

Court. The charges against the accused persons can be framed even

on the basis of strong suspicion found on the material collected by the

investigating agency during the course of investigation. The trial court

Crl. Rev. P. No.270 /1999 Page 23 of 40

can form a presumptive opinion regarding the existence of factual

ingredients constituting the offence alleged, and would be justified in

framing the charges against the accused in respect of the offences

alleged to have been committed by them. Reliance is placed on Soma

Chakravarty v. State Through CBI (2007) 5 SCC 403.

Rejoinder

52. Petitioner, in its rejoinder submits that it has consistently

been the case of the prosecution that the accused persons swapped

their answer sheets and wrote for each other. It has never been their

case, as is borne out from the chargesheet, as well as the order on

charge, that the question booklets (which were of different series,

thereby having questions in different sequential order), were swapped

by them at any point, during the course of the examination. Exchange

of answer sheets without the exchange of question booklets would

serve no purpose, if such an act were intended to benefit the co-

accused.

53. Petitioner submits that as per attendance sheet for the said

examination, the co-accused Ashraf Jamal had with him, answer sheet

bearing serial no. 3789409, and question booklet bearing serial no.

013498, whereas the petitioner had answer sheet bearing serial no.

3789408 and question booklet bearing serial no. 013499 at the time

when attendance was recorded around 10:00 a.m. The chargesheet as

well as the order on charge, make no mention of the fact that the

question booklets were ever exchanged. It goes on to show that it was

Crl. Rev. P. No.270 /1999 Page 24 of 40

never the case of the prosecution that the question booklets were ever

exchanged.

54. Mr. D.C. Mathur, the Ld. Senior advocate for the petitioner

relies on L.K. Advani 1997 CrLJ 2559, wherein in para 102 the court

had observed "there can only be one presumption and that is of the

innocence of the accused." A different presumption cannot be raised.

The charges have to be based on evidence which is legally convertible

at the stage of trial. In the present case, there is no legally admissible

material on record to indicate exchange of answer sheets or question

papers during the course of the examination.

55. Reliance is also placed on the decision in
Dilawar Balu

Kurane v. State of Maharashtra
(2002) 2 SCC 135, wherein it is

held that, "....by and large, if two views are equally possible and the

Judge is satisfied that the evidence produced before him gave rise to

some suspicion but not grave suspicion against the accused, he will be

fully justified to discharge the accused...".

56. In the present case, while a suspicion might arise because of

the alleged swapping of answer sheets, it is not grave enough to

conjure up a conspiracy or allege forgery on behalf of the accused

petitioner. He reiterates that merely because the answer sheets of the

petitioner and the co accused were not in sequential order, it does not

imply that the two accused persons had swapped their answer sheets

and solved the question papers for each other. This presumption by

the Ld. MM is not only baseless, but even contrary to the record, as per

Crl. Rev. P. No.270 /1999 Page 25 of 40

the statement of PW4 (Neera Sharma) who states that the distribution

of answer sheet was on random basis. Even the seating plan of the

room in which the candidates were sitting, amply demonstrates the

lack of sequence in the distribution of answer sheet.

Discussion & Decision

57. The scope of these proceedings, wherein the petitioner assails

the order directing framing of charges against the petitioner, and the

charges as framed, and the approach to be adopted by the Court while

dealing with a petition like the present, is settled by a catena of

decisions of the Supreme Court. I had occasion to deal with the same

in
Sajjan Kumar v. C.B.I.
, 171 (2010) DLT 120. Paragraphs 15 to 17

of this decision may be referred to, which reads as follows:

"15. The scope of the enquiry that the Court is required to
undertake at the stage of consideration of the aspect of
framing of charge and the approach that the Court should
adopt is well settled by a catena of decisions of the
Supreme Court. At the stage of framing the charge, the
Court has to prima facie consider whether there is sufficient
ground for proceeding against the accused. The Court is
not required to appreciate the evidence for arriving at a
conclusion that the materials produced are sufficient or not
for convicting the accused. If the Court is satisfied that a
prima facie case is made out for proceeding further, then
the charge has to be framed. The charge can be quashed if
the evidence which the prosecutor proposes to adduce to
prove the guilt of the accused, even if fully accepted before
it is challenged by the cross examination or rebutted by
defence evidence, if any, cannot show that the accused
committed a particular offence. In such a case, there
would be no sufficient ground for proceeding with the trial.
At the stage of framing of charge, the enquiry must
necessarily be limited to decide if the facts emerging from
the materials on record constitute the offence with which
the accused could be charged. The Court may peruse the
record for that limited purpose, but it is not required to

Crl. Rev. P. No.270 /1999 Page 26 of 40

martial it with a view to decide the reliability thereof. The
Court is required to evaluate the material and documents
on record with a view to find out the if the facts emerging
therefrom taken at their face value disclosed the existence
of all the ingredients constituting the alleged offence. For
this limited purpose, the Court may sift the evidence as it
cannot be expected even at the initial stage to accept all
that the prosecution states as the gospel truth, even if it is
opposed to common sense or the broad probabilities of the
case.

16. Consequently, if on the basis of the material on
record, the Court could form an opinion that the accused
might have committed the offence, it can frame the charge.
Though for conviction, the conclusion is required to be
proved beyond reasonable doubt that the accused has
committed the offence.

17. At the time of framing of the charge, the probative
value of the material on record cannot be gone into and the
material brought on record by the prosecution has to be
accepted as true at that stage. Before framing the charge,
the Court must apply its judicial mind to the material placed
on record and must be satisfied that the commitment of
offence by the accused was possible. Whether, in fact, the
accused committed the offence, can only be decided at the
trial. (See
State of Madhya Pradesh v. S.B. Johari
,
(2000) 2 SCC 57;
State of Maharashtra v. Priya
Sharma Maharaj & Ors.
, (1997) 4 SCC 393; and
Soma
Chakravarty v. State
, (2007) 5 SCC 403)."

58. It will not be advisable for me to go into the merits of the case

of the prosecution or the defences that the petitioner has sought to

urge in support of this petition, as it may prejudice the trial which is yet

to take place. Suffice to say, that it can be said at this stage that the

prosecution has a prima facie case, which discloses sufficient ground

for proceeding against the petitioner/accused.

59. The past acquaintance between the petitioner and the co-

accused, Shri Ashraf Jamal from their home town; the fact that they

were studying at JNU as boarders in the same hostel during 1993; the

fact that Shri Ashraf Jamal performed poorly and scored 147 marks in

Crl. Rev. P. No.270 /1999 Page 27 of 40

his Sociology paper in CS (P) Examination, 1992, and made an

improvement by scoring 199 marks in the year 1993, in contrast to the

petitioner‟s own performance of scoring 239 marks in the year 1992,

and only 160 marks in the year 1993 examination; the fact that at the

time of his making the application for CS (P) Examination, 1993, he

was aware of his having secured 52nd rank in the CS (Main)

Examination, 1992 - when there were 61 advertised vacancies in the

general category for the year 1992; the fact that the petitioner not only

did not improve in his performance in the CS (P) Examination, 1993 but

also did not attempt the full general studies paper (only 73 questions

out of 150 questions were attempted) in the CS (P) Examination 1993,

coupled with the fact that the handwriting expert opinion suggests that

the answer sheet provided to Ahsraf Jamal was written upon by the

petitioner and vice versa, do raise grave suspicion and warrant the

framing of charge against the petitioner and the co-accused Ashraf

Jamal.

60. The various explanations/defences raised by the petitioner to

explain his conduct would be a matter to be considered by the trial

court at the stage of trial. Even if the circumstance that the answer

sheets were not distributed in seriatim is taken into account, that by

itself cannot be said to shake the foundation of the case of the

prosecution. It is only during the trial that it would be established

whether or not there was a conspiracy between the petitioner and Shri

Ashraf Jamal as alleged by the prosecution, and if so, at what stage

that the conspiracy was hatched, and given effect to. Pertinently, the

Crl. Rev. P. No.270 /1999 Page 28 of 40

prosecution has not fixed any point of time or place where the alleged

conspiracy was allegedly hatched.

61. I do not find merit in the submission of Mr. Mathur that the

prosecution does not even allege that the petitioner and Shri Asraf

Jamal exchanged/swapped their question papers. The whole case of

the prosecution is that the petitioner has answered the question paper

for Shri Ashraf Jamal and vice versa. As the petitioner and Shri Ashraf

Jamal had different series of question papers (the petitioner had

Series-C and Shri Ashraf Jamal had Series-B), it would be obvious that if

there is truth in the said allegation, the same could not have been

achieved without the exchange of the question papers between the

petitioner and the co-accused Ashraf Jamal. I agree with the

submission of Mr. Pahwa that the said accusation is implicit in the

fundamental accusation that the petitioner has solved the question

paper for Ashraf Jamal by exchanging the answer sheet, and the fact

that the same is not expressly articulated in the charge sheet makes

no difference.

62. The submission of Mr. Mathur that the opinion of the

handwriting expert, even if believed, merely establishes that the

petitioner had filled up the details of Ashraf Jamal and vice-versa in the

answer sheets, which, by itself, does not lead to the conclusion that

even the answers to the questions were marked by the two accused for

each other, cannot be accepted at this stage because of the pattern of

scoring of the two accused in the two papers of Sociology and General

Crl. Rev. P. No.270 /1999 Page 29 of 40

Studies, in comparison to the scoring pattern in the previous year and

in light of the stand of the petitioner that he had appeared in the

Preliminary Examination in 1993 with a view to improve his ranking

from 52, which he scored in the overall assessment for the year 1992.

63. The anonymous complaint attributed to Ruchita Sahai may

have the set the ball rolling to kick start the investigation, but it cannot

be said that the entire case of the prosecution is founded upon that

complaint alone. Therefore, merely because Ruchita Sahai may have

disowned the anonymous complaint against the petitioner, does not

appear to take away from the case of the prosecution in any manner.

Pertinently, according to the prosecution, the hand writing expert has,

on comparison, found the complaint to have been written by Ruchita

Sahai, though she has disowned the same.

64. I find no merit in the submission of Mr. Mathur that no mens

rea can be attributed to the petitioner at this stage. It would be highly

premature to conclude as to whether or not the petitioner has

committed the acts of forgery and conspiracy as alleged against him,

and consequently, it cannot be said with certainty that the petitioner

did not have the mens rea to commit the offence of which he is

accused. The submission that there is inaccuracy in the impugned

order because the learned M.M. has proceeded on the basis that the

marks obtained by Ashraf Jamal in Sociology paper were 271, whereas

the same were only 199, also, in my view make no difference, as the

fundamental premise remains the same. The charge does not get

Crl. Rev. P. No.270 /1999 Page 30 of 40

diluted because the marks obtained by Ashraf Jamal in Sociology paper

were 199, and not 271.

65. I now proceed to consider the various decisions relied upon by

the petitioner and Ashraf Jamal.
Sarbans Singh
(supra) is merely an

instance of a case where this Court applied the Supreme Court decision

in
Union of India V. Prafulla Kumar Samal
, (1979) 3 SCC 4,

wherein the Supreme Court had, inter alia, held that the Court has the

power to sift and weigh the evidence- although for the limited purpose

of finding out whether a prima facie case against the accused has been

made out.

In
Prafulla
(supra), it had also been held that where

materials placed before the Court disclosed grave suspicion against

the accused which has not been properly explained, the Court would

be fully justified in framing a charge and proceeding with the trial. By

and large, however, if two views are equally possible and the Judge is

satisfied that the evidence produced before him gives rise to some

suspicion, but not grave suspicion against the accused, he will be fully

within his right to discharge the accused.

In the facts of the case

before it, this Court in
Sarbans Singh
(supra) came to the conclusion

that, prima facie, the case had emerged in favour of the accused

rather than in favour of the prosecution and, consequently, quashed

the order framing charges and discharged the petitioner.

66. In the present case, on prima facie evaluation of the case and on

sifting and weighing the evidence for that limited purpose, it cannot be

said that a case against the accused has not been made out. It also

cannot be said at this stage that the materials placed before the Court

Crl. Rev. P. No.270 /1999 Page 31 of 40

do not disclose grave suspicion against the accused, or that, at this

stage, the petitioner has been able to properly explain his conduct. In

my view, it cannot be said that the two views, namely, that the

petitioner and the co-accused, Ashraf Jamal are guilty of the offences

alleged against them, and the other view that they are not so guilty,

are equally possible. Consequently in my view, neither
Sarbans

Singh
(supra) nor
Prafulla
(supra) are of any avail to the petitioner‟s

case.

67.
In
L.K.Advani
(supra), this Court observed as follows:-

"57...............the prosecution must show a prima facie case
against the accused in order to enable the Court to frame a
charge against him. If the evidence before the Court is of
such type which if un-rebutted and un-challenged by way
of cross- examination would not be sufficient enough to
convict the accused ultimately then the Court would not be
justified in framing the charge against the accused. The
Court at that stage is under no obligation to make an
elaborate enquiry by sifting and weighing the material to
find out a case against the accused beyond a reasonable
doubt which it is required to do at the time of the final
hearing. The Judge at that preliminary stage is simply
required to find out that there was material which may
lead to the inference that the accused has committed an
offence. Thus the charge can be framed by the Court
against an accused if the material placed before it raises a
strong suspicion that the accused has committed an
offence. In other words, the Court would be justified in
framing the charges against an accused if the prosecution
has sown the seed in the form of the incriminating material
which has got the potential to develop itself into a full-
fledged tree of conviction later on."

68. On the basis of the prosecution‟s case, the observation of the

learned Metropolitan Magistrate that a prima facie case exists against

the accused cannot be faulted. It cannot be said that the evidence

before the Court is of such a type that if unrebutted and unchallenged

Crl. Rev. P. No.270 /1999 Page 32 of 40

by way of cross examination, the same would not be sufficient enough

to convict the petitioner and the co-accused Ashraf Jamal. At this

stage, the Court is not expected to make an elaborate enquiry by

sifting and weighing material to find out whether or not a case against

the accused beyond reasonable doubt is made out. That enquiry is

required to be done at the time of final hearing. Certainly, there is

material which may lead to the inference that the petitioner-accused

has committed the offences he is accused of.

69. Rukmini Narwekar (supra), in my view, has no

application in the facts of this case. The Supreme Court held that in

some very rare and exceptional cases, where some defence material

when shown to the trial court would convincingly demonstrate that the

prosecution version is totally absurd and preposterous, the defence

material can be looked into by the Court at the time of framing of the

charges or taking cognizance.

70. In the present case, the petitioner has failed to make out that

rare and exceptional case and, even more importantly, the petitioner

has not produced any defence material which could have convincingly

demonstrated that the prosecution version is totally absurd or

preposterous. The petitioner has sought to place before the Court

various facets which may or may not eventually be accepted by the

trial Court after conducting the trial.

71.
Smt. Bhagwan Kaur
(supra), in my view is not relevant to the

petitioner‟s case at this stage. This is because the case of the

prosecution is not entirely founded upon the evidence of the hand

Crl. Rev. P. No.270 /1999 Page 33 of 40

writing expert. The evidence of the hand writing expert is being relied

upon by the prosecution to provide support to its case of conspiracy,

cheating and forgery.

In
Sukhdeo Singh
(supra), the Supreme held

that a hand writing expert is a competent witness whose opinion

evidence is recognized as relevant under the provisions of the

Evidence Act
. The Court held that it would not be fair to approach the

opinion evidence with suspicion but the correct approach would be to

weigh the reasons on which it is based. The science of identification of

hand writing is an imperfect and frail one as compared to the science

of identification of finger prints. Courts have, therefore, been wary in

placing implicit reliance on such opinion evidence and have looked for

corroboration depending upon the circumstances of the case and the

quality of expert evidence. No hard and fast rule can be
laid down in

this behalf but the Court has to decide in each case on its own merit

what weight it should attach to the opinion of the expert.

72. In the present case it would be premature at this stage to assess

the weight to be attached to the hand writing experts opinion evidence

as that would be a matter to be considered by the trial court. As

aforesaid, it cannot be said that prima facie there is no other evidence

against the petitioner accused and the co-accused Ashraf Jamal.

Sukhdeo
(supra), therefore, does not advance the petitioner‟s case.

73. The decision of the Supreme Court in Sukhvinder Singh (supra)

relied upon by the petitioner has no relevance to the facts of this case.

As submitted by Mr. Pahwa, the hand writing expert opinion sought by

the CBI is not only on the basis of the specimen hand writing, but also

Crl. Rev. P. No.270 /1999 Page 34 of 40

the admitted hand writing of the accused persons. The trial court in

terms of
Section 73
of the Evidence Act can satisfy itself about the

hand writing of the accused either by requiring the accused to writ the

words in the Court, or to obtain a fresh opinion of an expert.

74.
Jibrial Diwan
(supra) is a case entirely on its own facts. In that

case the accused had prepared the invitation letters for a cultural show

on the letter heads of the Minister. The letters did not bear the

signature of the Minister. It was found as a matter of fact that neither

any wrongful gain to anyone nor any wrongful loss to another was

caused by delivery of the forged letters. The Court concluded that the

act of the accused could not have been termed to have been done

dishonestly. The Court held that the act of the accused did not cause

or was not likely to cause harm to any person in body or mind. It was

in those circumstances that the Supreme Court allowed the appeal and

set aside the conviction of the petitioner. However, the same cannot

be said from the accusations made against the petitioner and the co-

accused Ashraf Jamal. The charge against the petitioner and Ashraf

Jamal is that they have exchanged their answer sheets for the

Sociology paper and the petitioner has answered the question paper

for Ashraf Jamal and vice versa. The said acts, it is alleged, have been

done with a view to benefit Ashraf Jamal in passing the Civil Services

(Preliminary Practical) Examination, 1993.

Therefore, Jibrail Diwan

(supra) has not application to the facts of the present case.

75. Similarly, Parminder Kaur (supra) also has no relevance to the

facts of the present case. In that case, the accused was alleged to

Crl. Rev. P. No.270 /1999 Page 35 of 40

have added the figure „1‟ before the date 6.05.2002 and 7.05.2002 and

also the figure „2‟ before the date 7.05.2002 so as to save her Suit

from the bar of limitation. The Court found, as a matter of fact, that

the Civil Suit had been filed on 27.05.2002 i.e just after ten or twenty

days after the changed date or the original date. The change brought

about by adding the figure „1‟ would not cause any damage or injury to

public or anybody, nor could it support the claim or title nor could it

cause any person to part with property. There could not be also any

intention to commit fraud. The Court found that the Suit as filed was

well within the period of limitation. It was on this basis, and also on

the basis that the FIR was lodged by the brother-in-law of the accused

as an act of vengeance, that the Supreme Court quashed the FIR

against the accused.

76. From the charges leveled against the petitioner and the co-

accused, Ashraf Jamal, it cannot be said that their alleged conduct if

established, could not cause any damage or injury to public or

anybody, nor could it support the claim or title nor could it cause any

person to part with property. The analysis of Mr. Pahwa, recorded in

paras 37 to 44 above, appeals to this court. Reliance placed on

Parminder Kaur (supra) is, therefore, rejected.

77. Dr. Vimla (supra) is also a case which turned on its own facts.

The Supreme Court held that no injury had been caused to the person

deceived. The Supreme Court held that the expression „defraud‟

involves two elements- deceit and injury to the person deceived.

"Injury" is something other than economic loss i.e deprivation of

Crl. Rev. P. No.270 /1999 Page 36 of 40

property, whether movable or immovable or of money, and it will

include any harm whatever caused to any person in body, mind,

reputation or such others. Therefore, the injury could be non-economic

or non-pecuniary loss. A benefit or advantage to the deceiver will

almost always cause loss or detriment to the deceived. Even in those

rare cases where there is a benefit or an advantage to the deceiver,

but no corresponding loss to the deceived, the second condition is

satisfied. In this case, the accused had purchased a motor car in the

name of her minor daughter. She obtained the insurance policy which

was transferred in the name of her minor daughter. She claimed

compensation against genuine claims for two accidents. She signed

claim forms and receipts in the name of her minor daughter. The

Supreme Court took the view that even though the accused was guilty

of deceit, as she signed in all the relevant papers as her daughter and

made the insurance company believe that her name was that of her

daughter, but the said deceit did not either secure to her any

advantage, or cause any non economic loss or injury to the insurance

company. The insurance company would have paid the claim even if

the claim had been made by disclosing that the daughter was minor.

The Supreme Court held that on the evidence as disclosed, neither was

the accused benefited nor the insurance company incurred any loss, in

any sense of the term. The charges against the petitioner and the co-

accused in the present case are entirely of a different nature as

already discussed hereinabove. Dr. Vimla (supra) has no application

to the present case.

Crl. Rev. P. No.270 /1999 Page 37 of 40

78.
Devender Kumar
(supra) is a case dealing with
Section 420

IPC. The Supreme Court observed that the essential ingredients to

attract
Section 420
IPC are:- (i) cheating; (ii) dishonest inducement to

deliver property or to make alter or destroy any valuable security or

anything which is sealed or signed or is capable of being converted

into a valuable security and (iii) the mens rea of the accused at the

time of making the inducement. The making of a false representation

is one of the ingredients for the offence of cheating under
Section 420

IPC. The Supreme Court observed that it is not necessary that a false

pretext should be made in express words by the accused. It may be

inferred from all the circumstances including the conduct of the

accused in obtaining the property. In the true nature of things, it is not

always possible to prove dishonest intention by any direct evidence. It

can be proved by a number of circumstances from which a reasonable

inference can be drawn.

79. I find no merit in the submission of Mr. Mathur that the

ingredients of
Section 420
IPC are not made out in the charge sheet. I

am inclined to accept the analysis placed before the Court by Mr.

Pahwa in paragraphs 36 to 46 above.

80. Mohammed Ibrahim (supra) is again a case which has no

relevance to the petitioner‟s submissions. That was a case where the

accused no.1 had executed a sale deed in favour of accused No.2

claiming that the property sold belonged to accused No.1. A criminal

complaint was filed against the accused by the complainant, claiming

that the said property belonged to him and, therefore, accused No.1

Crl. Rev. P. No.270 /1999 Page 38 of 40

had committed offences under
Section 461
and
IPC. The Supreme

Court held:

"When a sale deed is executed conveying a property
claiming ownership thereto, it may be possible for the
purchaser under such sale deed to allege that the vendor
has cheated him by making a false representation of
ownership and fraudulently induced him to part with sale
consideration. But in this case the complaint is not by the
purchaser. On the other hand, the purchaser is made a co-
accused. It is also not the case of the complainant that
any of the accused tried to deceived him. Nor did the
complainant allege that first appellant pretended to be
complainant while executing the sale deeds. Therefore, it
cannot be said that the first accused by the act of
executing sale deeds in favour of second accused or the
second accused by reason of being the purchaser, or the
third, fourth and fifth accused, by reason of being the
witness, scribe and stamp vendor in regard to the sale
deeds, deceived the complainant in any manner. As the
ingredients of cheating as stated in Section 415 are not
found, it cannot be said that there was an offence
punishable under Sections 417, 418, 419 or 420
IPC
."

81. The same certainly cannot be said to be the case in hand. If the

charge against the petitioner and the co-accused Ashraf Jamal is

believed to be true, the two answer sheets prepared by each one of

them would, prima facie, constitute false documents as in that case,

the answer sheet claimed to be that of Ashraf Jamal would not be his,

and that claimed to be of the petitioner would not be his. Mohammed

Ibrahim (supra) does not advance the petitioner‟s case.

82.
In the light of the decisions in
Nrisingha Murari

Chakraborty
(supra) and
Abhayanand Mishra
(supra), it cannot be

said that the ingredients of the various offences of which the petitioner

is accused are not disclosed in the charge sheet.

Crl. Rev. P. No.270 /1999 Page 39 of 40

83. Consequently, I find no merit in this petition. The impugned

orders dated 10.05.1999 and 06.07.1999 passed by the learned

Metropolitan Magistrate in FIR No. RC 4(S) / 93-SIU-(II)-CBI are upheld.

The petition is dismissed.

84. No observation made by me in this order shall prejudice the case

of either party in the course of trial and the trial court shall not be

influenced by anything stated in this order.

85. Considering the fact that the case has been hanging fire since

the year 1999, and the trial has been stayed, I direct that the trial

should now proceed without any delay whatsoever and conclude it at

the earliest, preferable within the next six months.

(VIPIN SANGHI)
JUDGE
MAY 18, 2011
'SR/AS'

Crl. Rev. P. No.270 /1999 Page 40 of 40