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Judgement in Human-Trafficking Offences Allegedly commited by Army Personnel
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IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTSNEW DELHI
CC No. 46/2011
RC SI82007E0006-EOU-IVRC SI82008E0001-EOU-IVRC SI82008E0002-EOU-IVRC SI82008E0003-EOU-IVRC SI82008E0004-EOU-IVRC SI82008E0005-EOU-IV
U/s 120B r/w 419/420/467/468/471 of IPC & Sec. 12 of Passports Act,& Sec. 13 (2) r/w 13 (1) (d) of PC Act.
CBI Vs. 1 M. Suresh Babu,Son of Sh.M. Sundara Rao,
Resident of Qtrs. No.74/4,
Ichamati Lines, Rajputana Rifles
Regimental Centre, Delhi Cantonment Area, New
Delhi,Permanent Address: S-21/549,Keshar Nagar, near Nerad
Math, Secundarabad, Andhra
Pradesh.
2 Nagrajan Israel Raja @ Israel Rajah @ Raja @ Anil Kumar
Nagrajan @ Joel Brother,Son of Sh. Arasan, Resident of 51, Moti Bagh near
CBI Vs M. Suresh Babu etc 46/2011 1
Nanakpura Gurudwara.
3 David Abraham Johnson, Son of Sh. Perumal, Resident of G-124, JJ Colony, Wazirpur, New Delhi.
4 Navneet Singh, Son of Sh. Kulwant Singh, Resident of Mohalla Gopal Nagar, Village Jandiala Guru, Amritsar, Punjab.
5 Rajinder Singh, Son of Sh. Kashmir Singh, Resident of Dhirkot PO GarhiMandi, PS Jandialaguru, Amritsar, Punjab.
6 Gurdev Singh, Son of late Sh. Joginder Singh, Resident of Village Naushera,PO Pannua, PS Sarhali, TaranTaaran, Amritsar, Punjab.
7 Varinder Singh,Son of Sh. Nirmal Singh,Resident of Village & PO
Patnoora, Lubana, PSA Bhogpur, Distt.
Jalandhar, Punjab.
8 Gurjant Singh, Son of Sh. Balbir Singh, Resident of Village Naushera PO Pannua PS Sarhali,Taran Taaran, Amritsar, Punjab.
CBI Vs M. Suresh Babu etc 46/2011 2
Date of Institution : 12.05.2008Date of framing of charge :09.09.2009Date on which case was received on Transfer by this Court : 15.11.2011Date of conclusion of arguments :02.07.2012Date of Judgment : 13.07.2012
Memo of Appearance
Sh. Jagbir Singh, ld. PP for CBI. Sh. Rakesh Malhotra ld. counsel for A1Sh. Paramjeet Singh, ld. counsel for A5, A6 & A8Sh. Kulwinder Singh, ld. counsel for A4 & A7 Sh. S.N.Pandey, ld. counsel for A2 & A3
JUDGMENT
Kabootarbazi denotes going abroad through illicit means. It is
an act involving human-trafficking. The term Kabootarbazi is
derived from the distinctive attribute of kabootar (pigeon) to fly
and land silently and surreptitiously. Rural youth, from North
India in particular, is fanatically crazy about settling abroad.
Lure of west and temptation of hefty employment package
compel them to gag the mouths of agents with money.
Sometimes they raise money by selling off whatever they
possess and sometimes even by taking loans from friends and
relatives knowing fully well that it might be well nigh
impossible to repay such debt. It becomes rampant whenever
any group takes to skies for participation in any event. It can
CBI Vs M. Suresh Babu etc 46/2011 3
be a sporting event. It can be a musical group as well. By
falsely showing any such person to be the part of any such
group, persons are sent abroad on false documents and
naturally, they never return to their Motherland. Indian Army is
known for its dedication in security matters. Its band has also
created a niche for itself in the field of Music. Who can stop
thinking about the melodious Beating Retreat? It is, in fact, a
treat to Eyes and Ears. Military Bands, Pipes and Drums Bands,
Buglers and Trumpeters from various Army Regiments perform
during the ceremony. Indian Army Band is world renowned but
it was never thought, even in the wildest imagination, that
human trafficking would take place for an event in which Indian
Army Band was supposed to perform in Berlin in 2008.
PROSECUTION VERSION
1.0 On 01.11.2007, five accused persons i.e. Nagarajan Israel
Raja (hereinafter referred to as A2), Rajender Singh (hereinafter
referred to as A5), Gurdev Singh (hereinafter referred to as A6),
Varinder Singh (hereinafter referred to as A7) and Gurjant Singh
(hereinafter referred to as A8) reached I.G.I. Airport, New Delhi. They
were holding official passports and E-Tickets and wanted to go to
Frankfurt by Air India Flight No. AI-127. Officials at Airport suspected
their credentials as they all were supposed to be army personnel
but spot inquiry revealed that they were neither army officials nor
entitled to any official passport.
1.1 Except for the photographs, all the particulars mentioned
in such passports were found to be untrue.
CBI Vs M. Suresh Babu etc 46/2011 4
1.2 A7 Varinder Singh was found in possession of one official
passport which was in the name of Jagtar Singh and he revealed that
such journey had been arranged through agents and a meeting was
fixed with A2 at airport and at airport, A2 handed over aforesaid
official passport to him.
1.3 A8 Gurjant Singh was found in possession of official
passport which was in the name of one Sher Singh and he revealed
that he had acquired such official passport from one agent namely
Navneet Singh (accused herein and he would be referred to as A4)
who in turn had referred him to one other agent i. e. A2 and
thereafter A2 had given him that official passport.
1.4 Similar story was narrated by A6 who was found in
possession of passport in the name of Jasbir Singh and he also
indicted A4 Navneet Singh and A2 Nagarajan as agents.
1.5 A5 Rajender Singh was also found in possession of one
official passport in the name of Bikram Singh and he also blamed his
co accused A2 Nagarajan and A4 Navneet Singh.
1.6 It would be worthwhile to mention that A2 Nagarajan was
also apprehended with forged official passport. Such passport was in
the name of one Anil Kumar and on interrogation, it was revealed that
he was a carrier as well as agent and he was taking said four
persons i. e. A5 Rajender Singh, A6 Gurdev Singh, A7 Varinder Singh
and A8 Gurjant Singh to Germany on forged official passports and he
CBI Vs M. Suresh Babu etc 46/2011 5
had obtained such official passports from M. Suresh Babu (accused
herein and he would be referred to as A1) by paying him Rs.2.50
lacs.
1.7 A1 Suresh Babu was, in fact, an army personnel but he
had already left for Germany a day before on official passport on
official assignment. A2 Nagarajan also revealed that he used to
meet A1 M. Suresh Babu as well as David Abraham Johnson
(accused herein and he would be referred to as A3) and later, A3
introduced him to A4 Navneet Singh who had given him Rs.11.50
lacs for making arrangement for sending three persons to Germany.
1.8 Accordingly, five separate FIRs were registered against
said five accused persons by PS I.G.I. Airport.
1.9 Ministry of Defence informed CBI that in the month of
October, 2007, Indian Army Band had to proceed to Germany for
participation in 13th Berlin Military Band Festival. Such team consisted
of 42 persons including 2 officers. 10 more persons were kept as
‘reserved’ as stand by. However, official passports were got arranged
for all of them including reserved officials for participation in said
festival. It was also informed that preliminary investigation
conducted by army revealed that Lance Naik Suresh Babu i. e. A1
had abused his official position and conspired with some public
persons and private persons and fraudulently obtained official
passports and diverted the same to private persons against
consideration. It was also suspected that A1 was also responsible
for facilitating issuance of diplomatic passport to one Brigadier H. P.
CBI Vs M. Suresh Babu etc 46/2011 6
S. Bedi and also obtained official passport for one Smt. Harleen
Chadha whereas they both were not entitled to such passports
and when the house of A1 was raided by army authorities, they
recovered 44 passports and Rs.1.20 lacs in cash along with DO
letter Pads of Senior Officers of Army from his house.
1.10 CBI was accordingly requested to register FIR in order to
unearth nexus between army personnel and criminals dealing with
illegal immigration.
1.11 On the basis of such complaint dated 28.11.2007
received from Ministry of Defence, Govt. of India, CBI registered case
no. RC SI82007E0006-EOU-IV.
1.12 Since all the previous cases registered at I. G. I. Airport
also fell within the scope of investigation of said RC SI82007E0006-
EOU-IV registered by CBI, the other five cases were also transferred
to CBI from Delhi Police and accordingly five corresponding RCs were
also registered.
1.13 Investigation revealed that A1 was posted as Lance Naik
in the Directorate of Ceremonial and Welfare-I, Army Headquarters,
South Block, New Delhi. He was entrusted with responsibility to deal
with preparation of official passports in respect of those army officials
who were scheduled to participate in said music festival. This was
as per the previous practice as A1 knew about the procedure and had
got prepared official passports for such like music festivals on
previous occasions as well. He hatched conspiracy with all his other
CBI Vs M. Suresh Babu etc 46/2011 7
co accused. A1 filled up application forms in respect of 51 army
officials and affixed photographs of some private persons on
application forms instead of actually selected army officials and kept
as reserved. He also forged signatures of Colonel Satender Singh,
Director of Ceremonial and Welfare-I in all the 51 applications and
took those applications to the passport office situated at Patiala
House, New Delhi. Officials of MEA had also blind faith in him and
blank passports were made available to him and taking undue
advantage of such fact, he pasted photographs of private persons,
including of A2, A5, A6, A7 and A8 and the concerned MEA official
signed the passports believing all such passports to be genuine
passports. A1 then personally received all such 51 passports and
then in terms of conspiracy, said five fake official passports were
handed over to A2 Nagarajan Israel Raja.
1.14 E-tickets were purchased by A2 Nagarajan. One room in
Hotel Airport Inn, Mahipal Pur was booked by A3 David Johnson. A4
also joined hands with them and came there with A5, A6 and A8. As
far as A7 Varinder Singh is concerned, he reached directly to airport
on 01.11.2007 where he met all his co accused except A1 who had
already flown to Germany a day before.
1.15 Thus as per the investigation, all said five accused
persons i. e. A2 Nagarajan Israel Raja, A5 Rajender Singh, A6
Gurdev Singh, A7 Varinder Singh and A8 Gurjant Singh were,
deceitfully, intentionally and by corrupt means, trying to leave India
in terms of conspiracy with others. They were neither army officials
nor they could have ever applied for any official passport. A4
CBI Vs M. Suresh Babu etc 46/2011 8
Navneet Singh acted as agent and procured passengers i. e. A5
Rajender Singh, A6 Gurdev Singh and A8 Gurjant Singh. It was also
found that the sum of Rs.4.90 lacs were transferred by A4 Navneet
Singh to the bank account of his co accused A3 David Johnson in lieu
of obtaining such forged passports.
CHARGESHEET AND CHARGES
2.0 After concluding investigation, a consolidated charge
sheet with respect to all the aforesaid six RCs was filed indicting all
the aforesaid eight accused persons. It was also simultaneously
claimed that investigation on certain points was still pending and
permission was sought to further investigate the matter u/s 173 (8)
Cr. PC.
2.1 It was also mentioned in the chargesheet that no
sufficient evidence could be found against Brigadier H. P. S. Bedi
and Smt. Harleen Chadha. They were thus not sent up to face trial.
2.2 Such charge sheet was filed in the court on 12.05.2008
and vide order dated 20.4.2009 cognizance was taken.
2.3 It will also be pertinent to mention that two
supplementary charge sheets were also filed by CBI.
2.4 One such supplementary charge sheet dated
CBI Vs M. Suresh Babu etc 46/2011 9
30.10.2008 is limited in nature as by virtue of the same, sanction
orders along with report of GEQD were sought to be placed on
record.
2.5 Thereafter, one more supplementary charge sheet was
filed in the court on 10.8.2010 which primarily pertained to
investigation related to recovery of 44 passports from the house of
A1 and also regarding 5 missing official passports of one previous
Chile visit of army band. As regards 44 passports, CBI concluded
that the same had been merely kept by A1 at his house for future use
and no criminality could be attributed from the factum of mere
recovery of such passports. Even as regards second aspect, CBI
concluded that there was not sufficient evidence except the
disclosure made by one suspect against the other.
2.6 Vide order dated 31.8.2009, charges were ordered to be
framed.
2.7 A1 Accused M. Suresh Babu was charged for offences u/s
419, 420, 467, 468, 471 R/w 465 IPC and u/s 13 (2) R/w 13 (1) (d)
Prevention of Corruption Act and u/s 12 of Passports Act. Remaining
accused A2, A3, A5, A6, A7 and A8 were also separately charged
u/s 419, 420, 471 R/w 465 IPC and u/s 12 Passports Act.
2.8 Simultaneously, all the eight accused persons were also
charged u/s 120 B R/w 419, 420, 467, 468, 471 R/w 465 IPC, u/s 12
of Passports Act and u/s 13 (2) R/w 13 (1) (d) PC Act. All the accused
pleaded not guilty and claimed trial.
CBI Vs M. Suresh Babu etc 46/2011 10
WITNESSES FOR PROSECUTION
3.0 Prosecution was directed to adduce evidence and has
examined 43 witnesses. Witnesses can be classified as under:-
Witnesses related to IGI Airport.
(i) PW6 Pawan Kumar, Counter Supervisor at Air India, IGI
Airport, Terminal-II, New Delhi.
(ii) PW7 Harish Kumar, Customer Agent at IGI Airport.
(iii) PW17 Amit Kumar, Customer Agent at IGI Airport.
(iv) PW32 S. T. Norbula, Assistant General Manager at IGI
Airport, Air India Terminal, New Delhi.
(v) PW 15 Bhanu Prakash Joshi, Boarding Officer at IGI
Airport.
Witness from Ministry of External Affairs
(i) PW18 Smt. Suresh Rani Sharma, Assistant in the PV-II
Section, Passport Office, MEA, Patiala House, New Delhi.
(ii) PW19 Surjit Som, Section Officer in PV-II Section,
Passport Office, MEA, Patiala House, New Delhi.
(iii) PW39 Pawan Kumar, Under Secretary in the PV-II Section,
Passport Office, MEA, Patiala House, New Delhi.
Witnesses from Hotel Airport Inn.
(i) PW9 Ram Prakash Chauhan, Manager in Hotel Airport Inn
at Mahipal Pur on 31.10.2007.
(ii) PW10 Deepak Singh, Manager in Hotel Airport Inn
CBI Vs M. Suresh Babu etc 46/2011 11
Witnesses related to issuance of E-tickets.
(i) PW12 Yogesh Kumar Bhardwaj, Managing Director of M/s
Sunrise Airways Pvt. Ltd.
(ii) PW13 Neeraj Handa, agent for M/s Sunrise Airways Pvt.
Ltd. and E-tickets in question were booked through him.
Important Army Officials.
(i) PW11 Brig. H. P. S. Bedi. He was posted as Dy. Director
General (Ceremonial and Welfare Department) Army.
Headquarters, New Delhi.
(ii) PW14 Lt. Col. K. S. Chadha. He was posted at CW-2
Directorate, AG Branch.
(iii) PW16 Swapan Kumar. PA to Brig. H.P.S. Bedi
(iv) PW21 Col. K. S. Ram Mohan. He was posted at Army
Headquarters as Director, CW-II.
(v) PW33 Lt. Col. Adesh Pal Singh Randhawa. He was posted
as Joint Director at Army Headquarter, R&W Section, New
Delhi.
(vi) PW 20 Vijay Mohan for proving element of conspiracy
Witnesses who were impersonated and in whose name, five
of the accused persons were attempting to travel abroad by
using forged passports.
(i) PW1 Vikram Singh.
(ii) PW2 Anil Kumar.
(iii) PW3 Jasbir Singh.
(iv) PW4 Jagtar Singh.
CBI Vs M. Suresh Babu etc 46/2011 12
(v) PW5 Sher Singh.
Other army officials.
(i) PW22 Ashok Kumar Barua.
(ii) PW23 Tapan Kumar Maity.
(iii) PW24 Gagan Lama.
(iv) PW25 Hav. Amarjeet Singh.
(v) PW27 Rajender Singh.
(vi) PW28 Devinder Singh.
(vii) PW29 Ranjeet Kumar.
(viii) PW34 Girish Kumar U.
(ix) PW37 Aji Kumar.
Witness to seizure of passports from the house of A1 M.
Suresh Babu.
(i) PW26 Subedar Mohammad Aslam Ansari.
Bank witness
(i) PW36 Vikas Joshi.
Investigating officers, sanctioning authorities and
G.E.Q.D.
(i) PW40 Nripendra Mohan Prasad Sinha, Addl. SP.
(ii) PW41 Inspector Anand Sarup.
(iii) PW42 Assistant GEQD R. S. Rana.
(iv) PW43 Brigadier S. D. Nair competent authority to grant
sanction with respect to prosecution under PC Act qua A1
(v) PW38 R. Swaminathan, competent authority to grant
sanction with respect to prosecution under Passports Act
CBI Vs M. Suresh Babu etc 46/2011 13
qua all accused.
Public witnesses
(i) PW30 Sukhdev Singh.
(ii) PW31 Roshan Lal.
(iii) PW35 Surjeet Singh.
DEFENCE VERSION AND WITNESSES FOR DEFENCE
4.0 All the accused in their respective statements u/s 313 Cr.
PC pleaded innocence.
4.1 As far as A5, A6 and A8 are concerned, they have taken
similar stand. They all have denied being part of any criminal
conspiracy. According to them, they were to go to Germany on work
permit and their co-accused Navneet Singh i. e. A4 had assured
about obtaining such work permit. They claimed that they had not
purchased any E-ticket and rather when they reached Airport on
01.11.2007, they all were detained.
4.2 They all, in no uncertain terms, implicated their co
accused A4 Navneet Singh by claiming that they all had been misled
by him that they would be sent abroad on genuine work permit. They
all denied knowingly possessing having any forged passport or user
thereof. They claimed that they didn’t know anything about their
other co-accused persons.
4.3 As far as A7 Varinder Singh is concerned, he too has
CBI Vs M. Suresh Babu etc 46/2011 14
claimed that he was not holding any official passport and when
inquiries were made from him, he also told at Airport that he was not
army official. According to him, he had not purchased any ticket and
did not secure any boarding pass either. He claimed that he had
gone to the Airport as per the instructions of one Lakhvinder who had
assured that all travelling documents were legal. He also claimed
that all such passports were in possession of A2 Nagarajan Israel
Raja.
4.4 A4 Navneet Singh has pleaded his complete ignorance
about the present case. According to him, he was called in CBI office
where he had seen one Sandeep Singh. He also claimed that he had
been falsely implicated in the present matter.
4.5 A2 Nagarajan Israel Raja has also pleaded his innocence
and has claimed that he has been falsely implicated. He admitted
that he had gone to Airport that day but according to him, Surjeet
had asked him to reach Airport on 01.11.2007. His four other co-
accused A5 to A8 were already present there and then he was given
one passport by Surjeet. When he saw that passport, he noticed
that it was in the name of Anil Kumar and he confronted Surjeet on
said issue on which Surjeet claimed that nothing would happen as it
was containing his photograph only. He pleaded that he did not know
that such passport was official passport meant for army official and
claimed that it was Surjeet who was paid Rs.50,000/- and it was
Surjeet who had given him that passport. He also denied purchasing
any E-ticket.
CBI Vs M. Suresh Babu etc 46/2011 15
4.6 A3 David Abraham Johnson has also claimed that he has
been falsely implicated. He claimed that one Mr. Sandeep was his
boss and he booked one room for him and Mr. Sandeep gave him call
that there was some problem and asked him to go underground. He
also claimed that whatever amount was deposited in his bank had
been deposited by Mr. Sandeep and he did not know any of his co
accused.
4.7 A1 M. Suresh Babu admitted that he had visited Germany
to participate in International Music Festival at Berlin. He, however,
claimed that he was musician and was not working in the office of
CW-1 but was in Rajputana Riffles. He denied that he had filled or
signed any of the application forms. He denied that he had taken any
such application form to the passport office or signed any receipt
from the passport office. He also denied that he had got any
passport prepared for Ms. Harleen Chadha or handed over to her.
When it was asked as to why the present case had been made
against him. He answered as under:
"I do not know as to why this case has been made against me.
I had gone to Germany as part of the music team. At the time
of return, I was with Subedar Gurdev Singh, Lt. Col. Adesh Pal
Singh Randhawa, Havaldar/Clerk Raeji. I was told to have an
eye upon Subedar Gurdev Singh by Col. Randhawa. We
returned to India. Same evening, I do not know what
transpired but I, along with Subedar Gurdev Singh and
Havaldar Raeji were put in quarter guard i.e. custody. We all
were kept separately in custody for one week. Then some
inquiry was initiated and I found that it was directed against
me only. I, however, always claimed that I did not know
CBI Vs M. Suresh Babu etc 46/2011 16
anything about the present matter and was not involved in
anything. Initially, I was told that I would be let off in one or
two week but matter went on for quite some time and even I
was not allowed to meet my family. After one year or so my
mother died and then I virtually started quarrelling as to why I
was being detained for so long then I was taken to CBI office
and falsely implicated in the present matter.
I was only good musician and I did not know anything about the
procedure related to passport etc. I feel that I have been
falsely implicated in the present matter by Brig. H.P.S. Bedi,
Col. Satinder Singh and Lt. Col. Chadha. I never was given any
application form for taking the same for passport office. I
never filled any such application form. I never collected any
passport. There was rather a separate team in the Army for
such purpose and I was not part of any such exercise."
4.8 All accused except A1 desired to lead evidence in
defence. DW1 and DW2 entered into witness box on behalf of A5, A6
and A8. No other witness was examined by any of the accused.
CONTENTIONS OF STATE
5.0 Ld. PP has contended that prosecution has been able to
prove its case to the hilt.
5.1 He has contended that there is evident and discernible
conspiracy amongst the accused persons and that it is very much
palpable that all the accused were in league with one another.
Army officials as well as the officials of MEA were having blind faith in
CBI Vs M. Suresh Babu etc 46/2011 17
A1 who took unjustifiable advantage of such trust reposed in him and
dared to forge signatures of Col. Satender Singh. He obtained blank
official passports from MEA and filled those and the 10 passports,
which were meant for reserved band members and which were not
ultimately going to be utilized at all, were misused by him. Five such
passports were found in possession of A2, A5, A6, A7 and A8 when
they were caught at IGI Airport on 01.11.2007 and remaining were
recovered from his house later on. He has also argued that A1 came
into contact of A2, A3 and A4. A4 arranged A5, A6 and A8 and
obtained money from them and also transferred a sum of Rs.4.90 lacs
to the bank account of his co accused A3. It has also been argued
that the sketchy cross examination of some of the important
witnesses also indicate that accused never disputed the authenticity
of the case of prosecution. He has also contended that A5, A6 and
A8 have categorically indicted A4 Navneet Singh as the person who
had duped them which fact also lends reassurance to the correctness
of the prosecution’s version.
DEFENCE CONTENTIONS
6.0 All the aforesaid contentions of the prosecution have
been refuted by the defence.
6.1 Sh. Rakesh Malhotra, counsel for A1 M. Suresh Babu, has
contended that A1 has been made a scapegoat. According to him,
neither A1 had filled up any form nor had he forged signatures of
CBI Vs M. Suresh Babu etc 46/2011 18
anyone.
6.2 According to him A1 was only a musician in Rajasthan
Riffles and was not in the office of CW-1. His name was admittedly in
reserved list earlier but he was asked to report and to participate in
the Music Festival and had gone to Germany but he had never filled
any application form for preparation of official passport of anyone
and never forged signatures of any one. According to him, some
blank applications for passports were given to him by some of the
applicants and these application forms were given by him to Subedar
Ashok Kumar Barua for necessary processing and A1 did not do
anything further at all. After he returned from Germany, he was
detained by army officers and then after one year he was handed
over to CBI. He also claimed that senior army officers were let off and
he, being a petty official, has been implicated.
6.3 Sh. Kulvinder Singh had defended A4 and A7. As regards
A7, he has contended that there is nothing on record to show that he
had ever cheated anyone or even attempted to cheat anyone. He
does not dispute that A7 was present at IGI Airport that day but his
mere presence cannot invite inference to the effect that he was part
of any conspiracy or that he had cheated anyone. According to him,
A7 had gone to IGI Airport as per instructions of Lakhvinder, the
agent and he was never told that he was supposed to travel on any
forged passport. It has also been argued that there is nothing to
show that A7 had impersonated anyone or was holding any forged
passport or that attempted to use such passport. According to Sh.
Kulvinder Singh, A7 had not even arranged any E-ticket and when he
CBI Vs M. Suresh Babu etc 46/2011 19
reached at the airport, he was immediately apprehended. He has also
challenged the investigation which according to him is biased and
tainted.
6.4 As regards A4, it has been argued that there is no
material whatsoever to infer that he was part of any conspiracy. He
has also argued that prosecution has miserably failed to show that
A4 had transferred any money to the account of A3. It has also been
argued that neither the concerned photographer has been examined
nor the witness from concerned hotel has indicted A4 and therefore,
A4 cannot be hauled up merely on surmises and conjectures or on
the basis of statements of co accused. According to him, A5, A6 &
A8 have indicted him due to some other issue and A4 had never
taken any money from them.
6.5 Sh. S. N. Pandey has defended A2 and A3.
6.6 As regards A2, it has been argued that there is no fact
suggesting his involvement with any other co-accused. Photo-studio
official has not been examined and hostile testimony of PW 20 clearly
demolishes theory of conspiracy as PW 20 has failed to say anything
against A2. According to him, his presence at Hotel a night before
does not stand proved and CBI has also failed to establish that E-
Tickets were arranged by him. He has also expressed astonishment
over bias investigation and unwarranted interference in investigation
by Director, CBI and according to him Surjeet and Neeraj Handa
should have been also made accused besides some senior Army
officials. He has stressed that A2 had no role in preparation of any
CBI Vs M. Suresh Babu etc 46/2011 20
forged passport.
6.7 As regards A3, he admits that he had an account with
ICICI branch but deposit in such account had not been made by any
co-accused. Rather, it was made by one Sandeep Singh and
Karamjeet Singh and, these two persons were deliberately left out
from the scope and ambit of investigation. According to him,
conspiracy cannot be presumed whimsically merely because one
room was booked by him at Hotel Airport Inn when CBI has failed to
prove presence of any other accused at such room.
6.8 Sh. Paramjeet Singh has also tried to shield A5, A6 & A8.
He has contended that contradictory versions of Airport officials have
confused the scenario and it cannot be said that they had any
occasion to use passport. He has argued that rather A2 and A4 had
brought all three of them to Airport from Hotel and they were given
passports only when they had taken position in the queue and they
never had any opportunity to see whether the travel documents were
genuine or not. He has contended that all three of them had no
knowledge as to what had been already done by their co-accused.
According to him, they all three are rather victims and should not
have been made accused. He has also claimed that Sh. Kulwinder
Singh. Ld counsel for A4 and A7 was possessing the counterfoils of
deposit slips of amount deposited in the account of A3 by A4. Such
slips were seized during investigation and Sh. Kulwinder Singh must
have obtained those from A4 and then the same must have been
handed over to CBI and this fact, by itself, indicates that A4 had
cheated these three accused and obtained money from them by
CBI Vs M. Suresh Babu etc 46/2011 21
deceit and then transferred such money to the account of A3. When
they came at Delhi, they were given forged passports and they lost
their money as well as prestige as they had to remain behind the
bars.
EVALUATION OF EVIDENCE
7.0 I have given my thoughtful consideration to the rival
contentions and vigilantly perused and scanned the entire material
available on record.
7.1 Five alleged impersonators are A2 Nagarajan Israel Raja,
A5 Rajinder Singh, A6 Gurdev Singh, A7 Varinder Singh and A8
Gurjant Singh.
7.2 As per CBI, these five accused persons were trying to flee
India by using forged passports. The following chart would show the
relevant details:-
Sl. No.
Name of accused Passport no Exihibit No. Official impersonated
Serial no. of such official in overall List/ serial no. in Reserved list
1 A2 Nagarajan 01173171 (D140)
Ex PW2/C PW2Anil Kumar
46(4)
2 A5 Rajender Singh
01173204 (D139)
Ex PW1/B PW1Bikram Singh
51(9)
3 A6 Gurdev Singh
01173202 (D138)
Ex PW3/B PW3 Jasvir Singh
47(5)
4 A7 Varinder Singh
01173207 (D142)
Ex PW4/B PW4 Jagtar Singh
50(8)
5 A8 Gurjant Singh
01173203 (D141)
Ex PW5/B PW5Sher Singh
48(6)
CBI Vs M. Suresh Babu etc 46/2011 22
7.3 Out of said five accused persons, it will be appropriate to
deal with A5 Rajender Singh, A6 Gurdev Singh, A7 Varinder Singh
and A8 Gurjant Singh, at the moment. Role of A2 Nagarajan Israel
Raja is somewhat aggravated as he is also alleged to be agent and
material co-conspirator.
7.4 Qua A5, A6, A7 and A8, let me weigh up following
aspects:-
i) Whether they had conspired with their other co-accused
persons or not?
ii) Whether they had submitted incorrect particulars and
had signed application forms for obtaining fake
passports?
iii) Whether they had used such official passports and
whether they had cheated MEA officials, Airport officials
and immigration authorities?
7.5 There does not seem to be any dispute that for the
purpose of participation in said Music Festival to be held in Germany,
a list was prepared and was sent to MEA and also to the Embassy of
Federal Republic of Germany. Such list consisted of 52 persons.
First 42 officials were in the main list and remaining 10 officials were
in the reserved list. These names can be ascertained from Ex.PW39/A
as well as from Ex.PW21/A.
CBI Vs M. Suresh Babu etc 46/2011 23
7.6 By reserved officials, it means that these were to be used
as standby or in case of emergency if any of the member in the
main list was unavailable for one reason or the other. Reserved
Musicians were as under:
1) NK Devender Singh
2) NK Anil Pardhe
3) NK T. K. Maithy
4) NK Anil Kumar
5) LNK Jasvir Singh
6) LNK Sher Singh
7) LNK M. Suresh Babu
8) Sep. Jagtar Singh
9) Sep. Bikram Singh
10) GDR Praveen Kumar
7.7 It will be also important to mention here that one official
i. e. Lance Naik Hawaldar Amarjit Singh, whose name was in Main list,
did not go Germany and in his place A1 M Suresh Babu, whose name
was in Reserved List, visited Germany.
7.8 As per such list, it is very much apparent that names of
Jasvir Singh, Sher Singh, Jagtar Singh and Bikram Singh figure in
reserved list. Of course, name of Anil Kumar is also in Reserved List.
7.9 Let me now see the passport application forms pertaining
to said four accused persons. These are as under:
Sr. No. Name of accused Application form1 A5 Rajinder (D51) Ex.PW1/A
CBI Vs M. Suresh Babu etc 46/2011 24
Singh2 A6 Gurdev Singh (D49) Ex.PW3/A3 A7 Varinder
Singh
(D48) Ex.PW4/A
4 A8 Gurjant Singh (D50) Ex.PW5/A
7.10 PW1 Bikram Singh has deposed that he was posted in
Sikh Regiment and was attached with army band and Rajasthan
Riffles in the year 2007. He also gave particulars of his family
members and his address. He deposed that he was never
nominated by the army music band for participation in Music Festival
in Germany and he had never applied for the passport either. He was
shown application form Ex.PW1/A. He claimed that said form was
neither containing his photograph nor his signatures. He also denied
that it was containing his hand writing. When he was shown
corresponding passport, he reiterated that even such passport
Ex.PW1/B was neither bearing his photograph nor signatures. He
also claimed that he was never told by army that any such passport
was issued in his name or that he was required to report at IGI Airport
to board any flight on 01.11.2007. He also claimed that he had never
purchased by E-ticket or obtained any boarding pass to travel from
New Delhi to Frankfurt by Air India Flight. Virtually similar stand has
been taken by PW3 Jasvir Singh, PW4 Jagtar Singh and PW5 Sher
Singh.
7.11 I have seen the cross examination of these witnesses as
well and there does not seem to be any dispute that these four
prosecution witnesses never applied for any passport and never
signed application forms. I have seen the application forms as well as
CBI Vs M. Suresh Babu etc 46/2011 25
the corresponding passports and from the testimony on record, it can
be safely inferred that these army officials had never applied for
any official passport. These passports are not ordinary passports
and are rather official passports. All the aforesaid four accused
persons i. e. A5 Rajinder Singh, A6 Gurdev Singh, A7 Varinder Singh
and A8 Gurjant Singh are private persons and therefore, they are not
entitled to official passport at all. Visa stamp is also there on all such
four passports which bear the same scanned photograph as is there
on the passport and the corresponding application form.
7.12 So far so good.
7.13 However, prosecution does not possess any material to
show that application forms for obtaining official passports pertaining
to said four witnesses were filled by these four respective accused
and signed by respective accused. Rather, according to the own case
of prosecution, all such application forms i. e. Ex.PW1/A, Ex.PW3/A,
Ex.PW4/A and Ex.PW5/A were filled by A1 Suresh Babu and he had
also forged signatures of Col. Satender Singh on all such application
forms. Thus, even as per CBI, it was never felt that application
Ex.PW1/A seeking passport in the name of Bikram Singh was filled
and signed by A5 Rajinder Singh or that Application Ex.PW3/A (D49)
was filled by A6 Gurdev Singh or that application Ex.PW4/A (D48)
was filled by A7 Varinder Singh and application form Ex.PW5/A (D50)
was filled by A8 Gurjant Singh.
CBI Vs M. Suresh Babu etc 46/2011 26
7.14 Specimen hand writing and signatures of all four
accused persons were taken during investigation. These were also
sent to CFSL for necessary comparison also. Following chart would
be very handy to appreciate report of Handwriting Expert:-
Sl. No.
Name of accused Specimen hand writing
Questioned hand writing
1 A5 Rajinder Singh S-161 to S-165 Q91, Q96, Q437, Q450
2 A6 Gurdev Singh S-166 to S-170 Q79, Q83, Q397, Q434
3 A7 Varinder Singh S-246 to S-257 Q74A, Q77, Q399
4 A8 Gurjant Singh S-171 to S-175 Q85, Q90, Q443, Q449
7.15 All said specimen hand writing sheets are part of
supplementary documents. Questioned hand writing are those which
appear in the application form and on the passport and as per the
opinion of hand writing expert, which has been proved as Ex.
PW42/B, it was found not possible to express any opinion whether the
person who had written the aforesaid specimen hand writing was
also the author of the corresponding questioned hand writing.
7.16 This clearly means that there is nothing to suggest that
these four persons had filled their respective application forms.
Moreover, there is no witness to that effect either. I emphasis that
this was not even the case set up by CBI.
7.17 I have carefully gone through the entire testimony on
record and I have failed to find out any material which may show that
CBI Vs M. Suresh Babu etc 46/2011 27
these four accused persons i. e. A5, A6, A7 and A8, at any prior
point of time, conspired with any other co accused person. A7 had
allegedly reached Airport directly same day. Even if I assume for a
moment that A4 Navneet Singh had brought A5, A6 and A8 to
Delhi and even if it is assumed that they all had stayed in Hotel in
Delhi a night before, that fact, by itself, cannot infer that A5, A6
and A8 were sharing conspiracy with A4 or for that matter with
other accused persons.
7.18 It seems to me that they all merely wanted to go abroad
and had paid money for facilitating their journey. They wanted to
have passport, visa and E-ticket and for that they might have shelled
out hefty money but that does not mean that they were sharing any
conspiracy, at larger level, with other accused persons. They were
hardly concerned as to how such passports, visas and tickets were
being arranged by others. Merely because, they wanted these things
cannot be meant to understand that they were party to actual act of
forging and were sharing common intention with others or that there
was a common object in this regard.
7.19 Now let me see whether they were possessing
fake and forged official passports and whether they used
such passports on 01.11.2007.
7.20 In this regard, I would straightway come to the testimony
of officials who were posted at IGI Airport that day.
CBI Vs M. Suresh Babu etc 46/2011 28
7.21 PW6 Sh. Pawan Kumar was posted as Counter Supervisor
with IGI Airport, Terminal no.2. He deposed that case of five
passengers were brought to his knowledge by his subordinate namely
Sh. Harish Kumar(PW7) and Amit(PW17). Before minutely scrutinizing
the testimony of PW6 Pawan Kumar, it will be useful to see the
testimony of PW7 Harish Kumar and PW17 Amit Kumar.
7.22 PW7 Harish Kumar was working as customer agent with
IGI Airport and according to him, firstly Jasvir Singh (name of
passport holder is Jasvir Singh but it was allegedly used by A6
Gurdev Singh) came to the counter and on the appearance of the
passport holder, he developed a doubt and asked about his identity
card which such person was not able to produce. He then asked
him about logo of army band which he refused to show claiming that
he did not carry such logo on his clothes. According to Harish Kumar,
he had a doubt whether such person was in fact an army personnel,
therefore, he interrogated further but since he was not satisfied, he
produced him before his counter supervisor. He also deposed that
there were such 5 like persons who were present and he identified
them correctly in the court. It would be important to mention that A7
Varinder Singh was not present in the court at the time of deposition
and was exempted from appearance through counsel and his identify
was not even disputed. According to Harish Kumar, he took all the
five accused persons out of queue and handed over them to Sh.
Pawan Kumar Bali. Most importantly, testimony of this witness is
completely unrebutted and uncontroverted. No question or
suggestion was put to him by anyone. PW7 Harish Kumar was shown
passports during deposition and he claimed that all such five
CBI Vs M. Suresh Babu etc 46/2011 29
passports were shown to him. So much so, he even identified E
Tickets. He deposed that he had checked such passports and E
tickets that day as well.
7.23 PW17 Amit Kumar was also on duty along with Harish
Kumar that morning and according to him out of those five accused
persons, three were standing in the queue in front of Sh. Harish
Kumar and two accused persons were standing in the queue in front
of his desk. Naturally, at IGI Airport one would come across
various counters for checking in purpose and from the testimony of
Amit Kumar it seems that three accused persons were in one row
and two in the other row. As per PW17 Amit Kumar, when Harish
Kumar made inquiries from the accused persons, it was revealed
that there were five such like persons and the two persons, who
were in the queue in front of his desk, then joined the three other
persons and when they were asked to show identity cards, none of
them could produce identity card and on the basis of suspicion, the
matter was reported to PW6 P. K. Bali. Undoubtedly, this witness
claimed that he could not identify those five persons and even CBI
did not get perturbed and did not choose to cross examine him on
the aspect of identification but fact remains that he has,
emphatically, claimed those five persons joined together and when
they were asked to show identity cards, they could not show the
same. In cross examination, this witness, pursuant to one question,
answered that these persons were apprehended at the time of
issuance of Boarding passes.
7.24 Reverting back to the testimony of PW6 Pawan Kumar
CBI Vs M. Suresh Babu etc 46/2011 30
Bali, he has deposed that when the matter was reported to him, he
asked them to produce official documents to substantiate their
official capacity, they failed to produce any document except the
passport. He also put certain questions to them about their place of
posting, nature of job and official identity cards and since their reply
was not found satisfactory, the matter was reported to Air India
Security namely R. K.Vaid and Harish Masand and all the five
passengers along with their passports, air tickets and complete
baggage were handed over to the personnel of Air India for further
necessary action without checking in i. e. without issuing boarding
passes. He also deposed that during the relevant time i. e. year
2007, boarding passes used to be generated from the computer
and manual boarding card were used to be issued only in
emergency cases.
7.25 It is now required to be seen whether these five
accused persons including A2 Nagarajan Israel Raja were able
to collect any boarding pass or not.
7.26 There is no absolute perspicuity with respect to such
aspect of the case. Prosecution has placed on record boarding
passes. These are D12 to D16 and have been exhibited as Ex.PW6/A
to Ex.PW6/E. These are manual boarding passes and not computer
generated boarding passes and when these boarding passes were
shown to the concerned prosecution witnesses, they categorically
claimed that these were never issued by Air India. PW6 Pawan Kumar
has claimed that none of these boarding passes were issued by any
staff working under him that day. Even otherwise these were
CBI Vs M. Suresh Babu etc 46/2011 31
incomplete as detail of boarding number, boarding time, gate and
seat number are not found filled up. Similarly, PW7 Harish Kumar
has deposed that these boarding passes were not filled up by him
and during those days computerized boarding passes were used to
be issued. PW17 Amit Kumar has also deposed that since there was
a suspicion, the matter was brought to the notice of Sh. Pawan
Kumar Bali in order to see whether boarding cards were to be issued
to these passengers or not.
7.27 I would also like to mention that PW32 Sh. S. T. Norbula
was also posted at IGI Airport as Assistant General Manager. He was
partly examined on 29.11.2010 but thereafter he was not produced
and his sketchy examination, even otherwise does not serve any
purpose.
7.28 Thus, it is, if truth be told, not understandable as to what
prosecution wanted to show by placing on record such boarding
passes.
7.29 In order to find out the real story behind such boarding
passes, I had to see statements u/s 161 Cr. PC and when I went
through statement u/s 161 Cr. P.C. of PW6 Pawan Kumar Bali, it was
discovered that in his such statement, he had categorically claimed
that boarding passes were not issued and these boarding passes
(Ex.PW6/A to Ex.PW6/E) appeared to be dummy boarding cards
prepared to establish the presence of the passengers at Air India
check-in counter. No such fact was stated by P. K. Bali in witness box
and even the prosecution did not try to get the aforesaid fact clarified
CBI Vs M. Suresh Babu etc 46/2011 32
when Pawan Kumar Bali deposed before the court.
7.30 Be that as it may, fact remains that the testimony of
PW6 Pawan Kumar, PW7 Harish Kumar and PW17 Amit Kumar
categorically indicate that during that period, boarding passes used
to be computer-generated and not manually and all the boarding
passes Ex.PW6/A to Ex.PW6/E have not been categorically issued by
them or by any staff working at the Airport. Meaning thereby, these
were never issued by the concerned officers of Air India at the time of
checking-in.
7.31 Naturally, the question of issuance of boarding passes
would have arisen only when credentials of the passengers were
established. Since at the time of checking-in, the officials at the
counter developed suspicion, the matter was immediately referred to
the supervisor and since none of the passengers could give any
satisfactory reply and failed to show their identity cards, they were
detained for further necessary action. Naturally, in such a situation,
there was never any occasion to have issued any boarding pass. At
the time of such checking-in, simultaneous with the issue of boarding
passes, luggage is also checked in and tags are issued for such
luggage. It becomes very much apparent since immediately a
suspicion had arisen, all such five persons were isolated and were
questioned and therefore, they were not given any boarding pass at
all. Luggage tags were also not issued. Thus the boarding passes
contained in D12 to D16 which have been exhibited as Ex.PW6/A to
Ex.PW6/E are not strictly speaking boarding passes which are issued
by concerned airway after having satisfied the credential of any
CBI Vs M. Suresh Babu etc 46/2011 33
passenger. I also cannot rule out the possibility that these might have
been sort of dummy passes filled for assistance of counter officials.
Naturally, someone from the side of accused would have filled the
same. CBI did not find it prudent to send these to GEQD for obtaining
report. Who knows, it might have filled by any of these five accused.
7.32 I would here also like to make reference to departure
cards which are D143 to D147 and these are, unfortunately, not
proved by anyone. These also bear signatures of concerned five
accused persons but prosecution has not taken any pain to prove
these documents and also the stage when such departure cards were
required to be filled and prepared and therefore, I am left with no
option but to exclude departure cards from the scope of present
discussion. On careful perusal of statements of witnesses recoded u/s
161 Cr.P.C, I realized that one Discrepancy form was also filled at the
Airport at Boarding counter by Assistant Manager (Security) Sh. RK
Vaid. PW BP Joshi had made reference about the same during
investigation but surprisingly, such Discrepancy form was not made
part of the record. It would have also fully established as to when
exactly, the impersonation was detected. Sh. R.K. Vaid was not cited
as witness and testimony of PW 15 Sh. Joshi cannot be read being
incomplete.
7.33 The testimony of aforesaid airport officials would,
however, indict that all such five accused persons were in the queue
and were in the process of checking in for catching flight.
7.34 These passports are not ordinary passports. These are
CBI Vs M. Suresh Babu etc 46/2011 34
white passports as these are popularly known. Since counter officer
saw these white passports i.e. official passports, he, at once, asked
for identity cards from the passengers. In such a situation, standing
in queue for obtaining boarding passes and showing passports and E
tickets becomes a very crucial and decisive factor. They failed to
produce their official identity card and could not give any satisfactory
reply to establish that they were army officials. PW6 Pawan Kumar
has categorically deposed that they failed to produce any document
except the passport. Naturally, when they must have appeared
before the counters and were in the queue they all were having their
passport with them besides E-tickets. PW7 Harish Kumar has also
categorically deposed that accused persons had brought electronic
tickets, too, with them. So much so, he deposed that such E-tickets
i. e. Ex.PW7/1 (D17) pertaining to passenger Anil Kumar, Ex. PW7/2
(D18) of passenger Bikram Singh, Ex.PW7/3 (D19) of passenger
Jasvir Singh, Ex.PW7/4 (D20) of passenger Jagtar Singh and Ex.PW7/5
(D21) of passenger Sher Singh were also produced by accused
persons along with their passports.
7.35 It clearly indicates that all such five accused persons
including A2 Nagarajan Israel Raja were having their respective
passports with them. All such passports were official passports.
These were containing their photographs but rest of the particulars
were, from top to bottom, incorrect.
7.36 I am not prepared to accept that these five accused had
not even seen the passports and that had no occasion to use the
same. A bare perusal of the passport would have revealed that it was
official passport and except for photograph, ever fact mentioned
CBI Vs M. Suresh Babu etc 46/2011 35
therein related to identity of passenger was untrue. If any person
pays hefty amount for obtaining passport, visa and E-tickets, he
would immediately see the particulars mentioned on the passport
and a casual glance would have revealed that except the photograph,
nothing else was correct. Even the name has been mentioned
incorrectly. Naturally, the names were as per the reserved list but
the photograph was of the accused.
7.37 It really does not matter much whether these five
accused were standing in one queue or two queues. Stand of
prosecution witnesses, in this regard, is found consistent from
inception. Clinching point is flashing of passports and E-tickets for
procuring Boarding Passes. I am mindful of the fact that in two
passports D140 and D141, there are immigration stamps as well.
Normally question of immigration should arise after check-in was
successful. However, this does not create any sort of ambiguity in the
case. Rather, it establishes that accused were perhaps able to even
by-pass hurdle at check-in counter.
7.38 Sh. Paramjeet Singh, counsel for A5, A6 and A8 has
contended that none of the complainant of police FIRs has been
examined. He has also wondered as to how the boarding passes,
passports etc were seized by CBI as no memo has either been
prepared or proved. I am of the view that since investigation in toto
had been transferred from Delhi Police to CBI, CBI got the entire
record automatically. These documents were already there in the
police file and once charge was assigned to CBI, it got custody of
entire file including documents and, therefore, there was no
CBI Vs M. Suresh Babu etc 46/2011 36
requirement of preparing any formal seizure memo. Undoubtedly,
only one FIR recorded by Delhi Police has been got proved whereas
same Duty officer i.e. PW8 SI Subey Singh could have proved all the
FIRs, he being duty officer in all the cases but lacuna appearing in
this regard cannot take apart the entire case. It also really does not
matter even if A5, A6 and A8 were brought to IGI Airport by A4. A5,
A6 and A8 are themselves are to be blamed for using gorged
passports. Had their intention other than malafide, they would not
have dared to stand in queue to obtain boarding passes. Their
standing in queue rather reflects their knowledge and willingness to
use such passports as genuine passports.
7.39 Sh. Kulvinder Singh, counsel for A7 Varinder Singh has
argued that there is nothing to show that accused Varinder Singh
was possessing any passport much less a forged official passport.
He has also contended that there is no TIP and therefore, even
otherwise the identification before the court for the first time has no
value in the eyes of law. I am not impressed with such contention
at all. I need not reiterate that PW6 Pawan Kumar, PW7 Harish Kumar
and PW17 Amit Kumar have categorically claimed that all such
accused persons had produced their passports. PW6 Pawan Kumar
has categorically deposed that when accused were asked to show
official documents, they could only show the passport and reply
given by them was not satisfactorily and all such passengers along
with passports, air tickets and baggage were handed over to Air
India Authorities for further necessary action.
7.40 Undoubtedly, PW6 Pawan Kumar did not point out
CBI Vs M. Suresh Babu etc 46/2011 37
towards any accused and did not make reference to any of such
passport but PW7 Harish Kumar has categorically identified all such
passengers. A7 Varinder was, at that time, represented through his
counsel and fact remains that his identity was not disputed. Now, in
such a situation, defence counsel cannot claim that case is liable to
fail for non-holding of TIP. Moreover, he has also forgotten the fact
that TIP is required when a person flees after committing any offence.
Here, the airport officials had isolated these five persons and then
were handed over to security and in such a situation there was no
requirement of holding of any TIP. Most importantly, the testimony
of PW7 Harish Kumar is completely unrebutted and uncontroverted
and, therefore, defence cannot agitate regarding identity and use of
passports. Undoubtedly, PW17 Amit Kumar has supported the case
of prosecution but he also claimed that he did not remember their
faces as more than two years had elapsed but when this witness was
cross examined, he categorically deposed that it was correct that
such accused persons were apprehended before the issuance of
boarding passes. His evidence gives full corroboration to the case of
prosecution and shows that private persons had impersonated as
Army officials and had flashed official passports. I would also like to
mention that even the testimony of PW6 Pawan Kumar is completely
unchallenged and therefore, keeping in mind the testimony of all the
five army officials in whose name such official passports were meant
to be as well as the testimony of airport officials, it leaves no doubt
in my mind that all such five persons including A2 Nagarajan Israel
Raja were knowingly and consciously possessing forged and fake
official passports and attempted to cheat the airport authorities by
using the same.
CBI Vs M. Suresh Babu etc 46/2011 38
7.41 As far as A5 Rajinder Singh, A6 Gurdev Singh, A7
Varinder Singh and A8 Gurjant Singh are concerned, I have not
been able to find out any material which may show that they were
concerned with preparation of forged passports or they had
conspired with any other accused for said purpose. As per the
admitted case of prosecution, A7 Varinder Singh had come to airport
directly. There is nothing to suggest that A7 had ever come in
contact with any other accused at any prior point of time. Thus, A5 to
A8 cannot be said to be in conspiracy with other remaining accused
persons. They merely wanted to go abroad on work permit. It is not
unusual to observe that youth of affluent and agriculturally rich state
of Punjab is always fascinated and obsessed for abroad. They are
always desirous of living abroad and settling there. They don’t mind
spending and paying through nose for such purpose. They are also
least concerned as to how their agents ultimately get them such
travel documents. They are least concerned about any forgery which
might have been committed by their agents or any other illegal act
committed by them. To haul them up for larger conspiracy related to
forgery of signatures of Col. Satinder Singh would be a very fanciful
thinking. In L.K. Advani and Ors. v. Central Bureau of
Investigation 1997 CriLJ 2559, it was held that for proving
conspiracy, the prosecution has to prove meeting of minds for
commission of offence. It is true that each conspirator need not take
an acting part in commission of each and every one of the
conspiratorial act as was held in State of Himachal Pradesh v.
Krishan Lal Pardhan and Ors AIR 1987 SC 773. However, even in
said case of Krishan Lal Pradhan (Supra), Supreme Court held that
CBI Vs M. Suresh Babu etc 46/2011 39
meeting of mind was essential to constitute an offence of conspiracy.
Factum of proving the meeting of mind and factum of entering into a
conspiracy has always been a daunting task. Apex Court, in the case
of Kehar Singh and Ors. v. State (Delhi Administration) AIR
1988 SC 1883, observed that conspiracy can be proved by
circumstantial evidence as well as by direct evidence and that though
the conspiracy is hatched in secrecy, the prosecution must prove
some physical manifestation of agreement although it may not be
necessary to prove actual meeting of two persons or the words by
which the two persons communicated. If this principle is applied, it
would become comprehensible that there is no circumstantial
evidence or direct evidence showing meeting of minds between these
accused with other co-accused for commission of offence of forgery.
The meeting of mind of A5 to A8, if any, is shown to have been for
the purpose of traveling together and nothing more.
7.42 Be that as it may, it becomes very much clear that all five
accused persons including A2 Nagarajan Israel Raja had knowingly,
deliberately and dishonestly used forged and fake passports as
genuine passports. They were not triumphant in their design as they
were immediately caught. However, they reported at the counter
with E-tickets and flashed their passports which completed the act of
cheating. It really does not matter that they were nabbed and were
not able to catch the flight. They cheated airport authorities and
they used forged passports as genuine and impersonated as
army officials. As per sec 3 of Passports Act, no person shall depart
from, or attempt to depart from, India unless he holds in this behalf a
valid passport or travel document. None of said accused possessed
CBI Vs M. Suresh Babu etc 46/2011 40
valid passport.
7.43 Resultantly, A5 to A8 are hereby individually held
guilty and convicted u/s 419, 420 and u/s 471 IPC as well as
u/s 12 of Passports Act.
Involvement of A4 Navneet Singh
8.0 Now let met come to the role of A4 Navneet Singh.
These are the broad allegations against him:-
(i) He was instrumental in arranging three passengers,
namely, A5, A6 & A8.
(ii) These accused persons were got photographed at B.K.
Photo Emporium, R.K. Puram, New Delhi and at that time
other two accused persons, namely, A2 & A3 were also
present.
(iii) A4 was in league with main perpetrators and had
transferred a sum of Rs. 4.90 lacs in the account of his
co-accused A3 David Abraham.
(iv) When A3 had booked a room in hotel Airport Inn, Mahipal
Pur, Delhi on 31.10.2007, A4 had also visited that hotel
and had met A2 & A3 and had brought A5, A6 and A8 to
Delhi.
8.1 Learned PP has stated that in addition to the aforesaid
circumstances, statements of his co-accused A5, A6 & A8 also help
the case of prosecution as they have, in no uncertain terms, stated
before the Court that they all had been duped by Navneet Singh who
CBI Vs M. Suresh Babu etc 46/2011 41
had assured to send them abroad on work-permit and hefty amount
was paid to him for arranging such work-permit. According to learned
Prosecutor, such statements of co-accused can definitely be used
against A4 Navneet Singh.
8.2 Let me now see whether these allegations have been
duly substantiated by the prosecution or not.
8.3 As regards photographs, prosecution was heavily relying
upon the statement of PW Balbir Gupta. He was owning M/s B.K.
Photo Emporium, Shop No. 7, Sector-8 Market, R.K. Puram, New Delhi
and during investigation, he had revealed that A2 had come along
with A5, A6 & A8 and he had taken their photographs. This witness
has not graced the witness box. Summonses were sent to him but
summons returned unserved. However, if his version u/s 161 Cr.P.C. is
accepted as it is, then it would reveal that he has not made even a
whisper regarding A4. He merely claimed that photographs of A5,
A6 & A8 were taken in his studio. These three persons were brought
to his studio by A2.
8.4 I am indeed not able to understand as to on what basis,
investigating agency was able to decipher that these photographs
were clicked at M/s B.K. Photo Emporium. This would have been
possible if there was any sort of stamp of studio on the reverse of the
photographs. No such fact has been claimed by the investigating
officer. No negative was collected from M/s B.K. Photo Emporium. No
proof regarding payment was either obtained and even the bare
stand taken in statement u/s 161 Cr.P.C does not take the case of
prosecution anywhere. The manner of identification during
CBI Vs M. Suresh Babu etc 46/2011 42
investigation is not in good taste and leaves much to be desired.
Moreover, according to Balbir, his staff had clicked such photographs.
Nobody knows name of any such staff official either. Still, as I have
already noticed above, PW Balbir Gupta has not graced the witness
box, this fact does not stand proved at all.
8.5 Now I come to the fact regarding booking of room of
hotel Airport Inn and meeting of A4 Navneet Singh with his co-
accused in said hotel. In this regard, prosecution has examined only
one important witness i.e. PW9 Ram Prakash Chauhan. He was
working as Manager in said hotel and was on night duty on
31.10.2007. Register D-122 was shown to him and he claimed that
such register was of their hotel and the entry at page no. 105 was in
his hand and as per serial no. 1525, on 31.10.2007 one Mr. David A.
Johnson i.e. A3 had come at hotel at about 10.00 PM and got a room
booked in the hotel on the pretext that his bosses would come from
Jallandhar and would stay there and accordingly room no. 305 was
booked. Accused David A. Johnson had signed the register at point
A400 and such register has been proved as Ex. PW9/A. He further
deposed that accused David A. Johnson had brought three persons
there and when asked to identify, he pointed out towards A2 & A4
i.e. accused Israel Raja and Navneet. However, witness was not
found very sure, as in his examination itself, he has deposed that
they might be the persons who had come that day. He was naturally
found very tentative and uncertain and when he was cross-examined
by the defence, he reiterated that he was not completely sure
whether A3 & A4 were the same persons and he also stated that he
had identified them as they were stoutly built. In his further cross-
CBI Vs M. Suresh Babu etc 46/2011 43
examination, he deposed that he could not identify any of the person.
In such a situation, it would be hazardous to hold that A4
Navneet Singh was present in the hotel that night.
8.6 Let me now come to the all important and most
crucial transaction i.e. transfer of a sum of Rs. 4.90 lacs
allegedly by A4 in the account of A3.
8.7 There is no dispute that A3 is having a bank account with
ICICI Bank, Connaught Place and his account no. is 000705021330.
Even A3 admits such fact. According to prosecution, a sum of Rs.
4.90 lacs was transferred in the said account of A3 by none other
than A4. Prosecution has relied upon two sets of documents in this
regard. One set of documents consist of D-26 (Main List) and these
are three pay-in-slips and second set of documents is contained in
D-17 to 28 (supplementary list of documents).
8.8 Let me first see the documents D-17 to D-28 of
supplementary list. If prosecution case is to be believed then A4 had
deposited a sum of Rs. 4.90 lacs in Amritsar and such amount was
transferred to the said ICICI Bank account of his co-accused David A.
Johnson. As per case of prosecution, deposit was made in Amritsar
and finally amount was credited in the bank account of A3 in Delhi.
As I have already noticed above that there is no dispute that A3 is
having said current account with Connaught Place Branch of ICICI
Branch. Account opening form has been proved as Ex. PW36/A7
which contains photograph of A3 and his admitted signatures. A3
CBI Vs M. Suresh Babu etc 46/2011 44
has also admitted such fact in his statement u/s 313 Cr.P.C. However,
he has pleaded ignorance about the aforesaid deposit slips. Four
pay-in-slips which ultimately remained with the bank are D-18 (Ex.
PW36/A1), D-26, D-27 & D-28. Only one deposit slip i.e. pay-in-slip
has been proved by prosecution. Remaining three pay-in-slips
contained in (D-26, D-27 & D-28) are unproved. Let me, still, see and
consider all these four pay-in-slips. First pay-in-slip contained in D-18
shows name of depositor as Karamjeet Singh. D-26 shows the name
of depositor as Surjeet Singh and D-27 & D-28 show the name of
depositor Sandeep Singh. Nobody knows as to who are these
Karamjeet Singh, Surjeet Singh and Sandeep Singh. There is
no investigation on this aspect at all. Secondly, it is not
made clear by the prosecution as to on what basis it has
come to the conclusion that such amount was deposited by
A4 Navneet Singh only. Handwriting appearing on such pay-in-
slips were never sent to CFSL for necessary comparison with
specimen or admitted handwriting of A4. Name of depositor is also
not shown as Navneet Singh in any of the slips and, therefore, there
is virtually no material on record to indicate that any such amount
under any such slip was actually deposited by A4 through said slips
which are bank’s copies.
8.9 It is a matter of common knowledge that as and when
any cash amount is deposited in bank, one part of the pay-in-slip is
retained by the customer as customer’s copy. Out of these four pay-
in-slips, three such customer’s copies were seized by the
investigating agency during investigation. I am making reference to
D-25 (Main List). It is seizure memo dated 26.04.2008 and these
CBI Vs M. Suresh Babu etc 46/2011 45
three pay-in-slips (customer’s copies) were handed over to CBI by
one Kulwinder Singh. I again say that seizure memo is dated
26.04.2008. This is important because charge-sheet was filed on
12.05.2008. Therefore, seizure memo is prior to the date of filing of
charge-sheet. Prosecution did not bother to explain as to who is this
gentleman known as Kulwinder Singh who had handed over those
counterfoil/ customer’s copies to the investigating agency.
8.10 It baffled the court when learned counsel for A4 &
A7 disclosed before the Court that the persons mentioned as
Kulwinder Singh is none other than he himself. He claimed that
he had handed over those receipts to the CBI and at that time he was
representing other accused persons also. There is indeed a big lapse
on the part of investigating agency. They did not bother to record the
statement of Kulwinder Singh. It should have been ascertained by
the investigating agency as to how Sh. Kulwinder Singh had come in
possession of such counterfoils of pay-in-slips. Naturally, these must
be with the person who had deposited such amount in the account of
A3 but investigating agency took the matter very casually and lightly
and did not make any endeavour to investigate this aspect for
complete substantiation of theory of deposit by A4 in the account of
A3. So much so, seizure memo D-25 is lying unproved. No IO ever
made any reference to such document. Seizing Officer is some
Manjeet Singh but Manjeet Singh has also not been cited as witness
and neither has been examined by the prosecution and, therefore,
such seizure memo cannot be read in evidence. Similarly, all three
pay-in-slips i.e. D-26, D-27 & D-28 have not been proved in any
manner whatsoever. Nobody knows as to in whose handwriting such
CBI Vs M. Suresh Babu etc 46/2011 46
pay-in-slips are and moreover mention of names of other persons like
Sandeep Singh, Surjeet Singh and Karamjeet Singh has complexed
the entire scenario and it cannot be conclusively inferred that it was
A4 who had deposited such money.
8.11 Learned PP has, however, stated that Section 30 of
Evidence Act stands attracted and the statement made by co-
accused can be read against the other. He has drawn my attention
towards statements u/s 313 Cr.P.C. of A5, A6 & A8 who all have, in
one voice, indicted A4 Navneet Singh as the person who had taken
payment from them. I am, however, afraid that even such
statements cannot be said to be of great importance as even
otherwise there is no corroboration of any sort from anywhere else.
Mere disclosure by any accused u/s 313 Cr.P.C. indicting his another
co-accused would not be per se conclusive and sufficient. Section 30
Evidence Act provides that when more person than one are tried
jointly for same offence, and confession is made by one of such
persons affecting himself and his co-accused in the same case, the
Court may take into consideration such confession as against the
maker as well as against such co-accused. The basic principle behind
this provision is that if a person makes a confession implicating
himself, it would demonstrate that maker of confession is coming up
with truth. In the present case, however, A5, A6 and A8 have not
implicated themselves and, therefore, Section 30 Evidence Act does
not stand attracted. Moreover, Section 30 Evidence Act only provides
that confession of co-accused can be taken into consideration but
scope of such consideration is not unlimited. It is rather very
restricted. If a confession is made by one person implicating himself
CBI Vs M. Suresh Babu etc 46/2011 47
as well as his co-accused, such confession can only be used to lend
assurance to the other evidence against the co-accused. If there is
no other legally admissible evidence against such co-accused, such
co-accused cannot be convicted merely on the basis of confessional
statement coming from the mouth of his accomplice. Such
confessional statement made by his associate is obviously a very
weak type of evidence and it does not even fall within ambit of
evidence as contained u/s 30 of Evidence Act. Reference be made to
HARI CHAND KURMI VS. STATE OF BIHAR AIR 1964 SC 1184
and MATTO SINGH VS. STATE OF HARYANA 2008 (4) AD CRL.
168.
8.12 I have seen defence evidence i.e. statements of DW1
Mandeep Singh and DW2 Balbir Singh. They both have been
examined by A5, A6 & A8 and according to them, accused Navneet
Singh had assured that A5, A6 & A8 could be sent to Germany and
he demanded Rs. 8 lacs per person. DW1 Mandeep Singh has
deposed that Navneet Singh assured that they would be sent on
work-permit of Germany and genuine visa and also told that being
relative, he was not going to deceive them at all. He has also
deposed that Rs. 1 lacs for each such accused i.e. A5, A6 & A8 was
given to him and then on 20.10.2007, further amount of Rs. 3 lacs
each person was further paid and the balance amount of Rs. 4 lacs
was to be paid on 30.10.2007. He also deposed that on 30.10.2007
at about 11.00 PM accused Navneet Singh took all of them to Delhi
and then later on, a telephonic call was received from police that they
all had caught and arrested. He also deposed that accused Navneet
Singh had cheated all the three accused persons and had not even
CBI Vs M. Suresh Babu etc 46/2011 48
returned their money. Testimony of DW2 Balbir Singh is also to the
similar extent. These witnesses were grilled by counsel for A4 but
they denied that they were deposing falsely at the instance of one
Anoop Singh. I feel that even such testimony coming from the mouths
of defence witnesses cannot be permitted to be accepted as
substitute of prosecution evidence and as forceful and relevant.
These are virtually the version of co-accused.
8.13 In view of aforesaid, though it is quite possible that A5,
A6 & A8 might have contacted A4 and might have paid money to
him yet in view of the evidence on record, I am not able to hold so for
want of sufficient legally admissible evidence. If A5, A6 & A8 feel
that they have been duped by A4, they can always file a report or
complaint in this regard with competent Authority or court of law. In
the present matter, there is no legally admissible material connecting
him with any other accused or showing meeting of minds or his
physically meeting any of his other accused.
8.14 Resultantly, I have no option but to acquit A4
Navneet Singh of all the charges.
ROLE OF A2 AND A3
9.0 Let me now see the role of A2 and A3 and also as to how
they came into contact of A1.
9.1 Talking about A2, naturally, A2 was present at IGI
Airport. He had also used forged passport and cheated by
impersonating as Army official i.e. PW2 Anil Kumar. Let me see
CBI Vs M. Suresh Babu etc 46/2011 49
whether his role is limited to that or expanded further.
9.2 Allegations against him are as under:-
(i) He was co-conspirator and knew A1.
(ii) He was possessing forged passport and used the same as well.
(iii) He had brought A5, A6 and A8 at Studio and their photos were
later on handed over to A1 for affixation on passports.
(iv) He was present at Hotel Airport Inn.
(v) He purchased E tickets.
9.3 Prosecution was heavily dependent upon the statement
of Sh. N.K. Vijay Mohanan who claimed, during the investigation, that
A1 knew A2 but, unfortunately, he has not supported the case of
prosecution. PW20 Sh. N.K. Vijay Mohanan was posted in Army Band,
Delhi Cantt, New Delhi. He deposed that he knew accused M. Suresh
Babu who was also posted in Army Band. However, thereafter he
demolished the prosecution case claiming that he did not know A2.
He rather claimed that he knew one David Suresh Babu. Here, I
would like to observe that he is naming David Suresh Babu who was
earlier in Army Symphony Band and was in Madras Regiment. This
name ought not to be confused with David Abraham Johnson. These
are two different personalities and should not be considered to be a
case of any typographical error either. During investigation too, this
witness talked about David Suresh Babu and not David Abraham
Johnson.
9.4 This witness was very important for prosecution because
he could have supplied the linkage between A1 on one hand and A2
on the other hand but this witness resiled from his previous
CBI Vs M. Suresh Babu etc 46/2011 50
statement and denied knowing anything about A2. He was grilled by
the prosecution with the permission of the Court but he remained
adamant to his stand and denied meeting A2 Raja in Church.
9.5 Another allegation against A2 is to the effect that he had
taken A5, A6 & A8 to M/s B.K. Photo Emporium where their
photographs were taken and such photographs were then handed
over to A1 M. Suresh Babu. I have already noticed above that
prosecution has not been able to prove such fact in any manner
whatsoever.
9.6 Regarding his presence at Hotel Airport Inn, again,
as already noticed above, PW9 Chauhan has not been able to
identify him properly.
9.7 However, there is one more aspect showing
complicity of A2 i.e. procurement of E-tickets. Fortunately,
such fact has been proved by the prosecution and in this regard
testimony of PW12 Sh. Yogesh Kumar Bhardwaj and PW13 Neeraj
Handa is of great significance. PW12 is Managing Director of M/s
Sunrise Airways Pvt. Ltd and according to him, anyone could
purchase air tickets from their company or through their travel agent.
He deposed that in the present case, air tickets were issued to five
passengers through travel agent i.e. M/s Metro Travel and Sh. Neeraj
Handa is one of the owners of M/s Metro Travels.
9.8 PW13 Neeraj Handa has also supported the case of
prosecution. He has deposed that in the year 2007, one person,
CBI Vs M. Suresh Babu etc 46/2011 51
namely, Anil Kumar @ Raja had come to his office and asked for air
tickets for five persons including himself for the destination from
Delhi to Frankfurt and from Frankfurt to Mumbai and also from
Frankfurt to Berlin and from Berlin to Frankfurt. Such person Anil
Kumar @ Raja also claimed that he was government servant and
some officials had to attend a function in Berlin and he had to
proceed there along with other officials. According to PW12 Neeraj
Handa, that person Anil Kumar @ Raja then gave him photocopies of
passports and visa whereupon he (PW13) went to M/s Sunrise Airways
and obtained air tickets and handed over the same to Anil Kumar @
Raja. Such E-tickets were shown to the witness during recording of his
testimony and he identified such tickets Ex. PW7/1 to Ex. PW7/5.
Original passports of such persons were also shown to the witness
and witness admitted that photocopies of visa and photocopies of
such passports were also given to him by accused Anil Kumar @ Raja.
When he was asked to identify accused Anil Kumar @ Raja i.e. A2, it
was noticed that accused Raja was not physically present in the Court
that day but his counsel did not dispute his identity. This clearly
indicates that there is no disagreement that such E-tickets were
obtained by none other than A2. This witness was also shown
photograph of such accused on passport D140 i.e. Ex. PW2/C and
from such passport, he was able to identify the accused and
categorically claimed that he was the same person who had come to
book and collected the tickets. In his cross-examination, he claimed
that he had given bank statement to CBI in order to show that
payment was made by accused Raja and then such payment was
credited to M/s Sunrise Travels. Surprisingly, counsel for accused
Raja did not choose to cross-examine the witness and, therefore,
CBI Vs M. Suresh Babu etc 46/2011 52
testimony of PW13 Neeraj Handa clinches the issue in favour of
prosecution and it stands established that five E-tickets in question
were booked by A2 and at that time A2 was even holding all the five
fake official passports and he had even given the photocopies of
passports and photocopies of visas to Neeraj Handa. All such e-
tickets were also identified by PW12 Sh. Yogesh Kumar Bhardwaj.
9.9 Sh. Pandey has, however, come up with a very novel
argument. He contends that since tickets were purchased by agent
Neeraj Handa and he had made payment to M/s Sunrise Airways, Mr.
Handa should have been made accused. According to him, A2
himself never purchased tickets at all. I don’t find any merit in such
contention. Mr. Handa was merely owner of M/s Metro Travels and as
agent of M/s Sunrise Airways made booking as per wishes of A2. His
role was to provide tickets to the customers. He was shown passports
and Visas. So much so, A2 rather claimed himself to be a
government employee and sought to book tickets for some official
function. Merely because, tickets were booked through M/s Metro
Travels, no criminality can be attributed to such concern or to Mr.
Handa. On the other hand, categoric, unshaken and virtually
unrebutted testimony shows involvement of A2. His false
misrepresentation and his holding forged passports is a clear pointer
to his being a partner in crime.
9.10 Sh. Pandey has further contended that even PW 35
Surjeet should have been made co-accused. I have carefully perused
the testimony of this witness and I am of the considered opinion that
his testimony rather strengthens the case of prosecution against A2.
CBI Vs M. Suresh Babu etc 46/2011 53
He deposed as under:-
“I know accused Nagarajan who was known as Raja and he
used to come to our office since 2002-2004 and he used to
come for booking of tickets. I was suffering from skin disease
and I had discussed my problem to him and he brought
medicine for me from various places. We started meeting and
developed a sort of friendship. I had been to his place with my
wife also. Once he told me that a group was to go
Germany in 2007 and he told me that he could arrange
any person of my choice to become part of that group.
Vijay Pal Singh @ Vicky is son of chachi of my wife and he
suggested name of one Varinder Singh of Punjab. I told his
particulars of Varinder Singh to Raja. Raja then
demanded passport of Varinder Singh and two passport
size photograph and advance Rs. 1 lac. Raja had
demanded Rs. 6.5 lacs in all for said purpose. However, I
had told Vijay Pal Singh @ Vicky that total expenditure would be
of Rs. 7.5 lacs. I gave passport, photographs and advance of
Rs. 1 lac in August to Raja. He asked me to wait for two
months. On 31.10.2007 I was told by Raja that the work had
been done and asked me to call that Varinder Singh. I called
Varinder Singh at my house. Varinder Singh had come along
with two more persons. I can identify accused Varinder Singh.
(Accused Varinder Singh is exempted from personal
appearance for today and his identity is not in dispute). Then I
took them to one hotel at Mahipal Pur. Varinder Singh had to
catch flight next morning. Then on 01.11.2007 I took Varinder
Singh from said hotel to IGI Airport. There I met Raja and two
CBI Vs M. Suresh Babu etc 46/2011 54
other persons whom I cannot identify. They were in black coats.
I left Varinder Singh at Airport and left. Same morning at
6.30/6.40 AM I got call from Raja that they had been detained
at the Airport. I got afraid and I also left my house and did not
go back to my house for approximately six months. Varinder
had to make the balance payment of Rs. 5.5 lacs but he
claimed that he would make the payment only when he was
able to land in Germany and as a surety for time being, I gave
four cheques from my Standard Chartered Bank as guarantee
to Raja. Raja kept those cheques and agreed to send Varinder
and also assured that he would return my cheques once
Varinder landed in Germany and once he got the balance
amount in cash. Raja had also told that once Suresh Babu was
also working with him. However, I never met him.”
9.11 Thus testimony of PW35 Surjeet Singh is found to be very
significant. It unquestionably indicates that A2 was in the thick of
things since very beginning. He dropped hint that anyone could be
sent Germany on substantial payment and demanded money i.e. Rs.
6.5 lacs. He collected photograph etc well before actual forgery. He
called them at Hotel of Mahipalpur on 31.10.2007. According to Pw
35 Surjeet Singh, said Raja i.e. A2 was also present at hotel that
evening. This fact remained unchallenged and rather proves
presence of A2 at Hotel that evening. This rather makes up the
loss emanating out of shaky identification by PW9 Chauhan.
9.12 I have already scrutinized testimony of Airport officials
and the discussion done there stands good for A2 as well. Sh. Pandey
cannot be permitted to dig out any mileage due to non-examination
CBI Vs M. Suresh Babu etc 46/2011 55
of any official of Immigration or Airport Security. According to Sh.
Pandey, it is not clear as to who recorded statements u/s 161 Cr.P.C.
of Airport officials as IOs are coming up with contradictory versions
and, therfore, it should be automatically assumed that these
statements are prepared statements. I don’t agree with him on this
front either. In such type of bulky matters, it is not always possible for
any IO to distinctly remember as to statement of which particular
witness was recorded by him. Uncertainty or even giving incorrect
answer in this regard would not mean that all such statements are
prepared and fabricated statements.
9.13 It has also been argued that IO deposed that Hotel
register contained signatures of A 2 as well but when confronted he
denied said fact and it indicates some manipulation. Again, Sh.
Pandey is stretching himself too far and too away. When IO was
shown the register, he immediately corrected himself and admitted
that such register did not contain signature of A2.
9.14 My foregoing discussion would reveal that A2 has
committed offences u/s 419, 420 and u/s 471 IPC as well as
u/s 12 of Passports Act for being in possession of forged
passport and for using the same in fraudulent manner. But, in
addition to that, he is party to larger conspiracy. He knew
about Germany visit in advance. He possessed forged official
passports and visas which automatically reflects that he was
working in league with A1 else how could he lay his hands
upon such official passports. PW 35 Surjeet Singh also
implicates him. He was the one who had arranged E tickets.
CBI Vs M. Suresh Babu etc 46/2011 56
He demanded money for sending person abroad in an illegal
manner. His asking for money shows his malafide intention.
10.0 Coming to A3, prime-most allegation against him is to
the effect that he had booked a room in hotel Airport Inn at Mahipal
Pur, New Delhi where, allegedly, other accused had also stayed.
Other momentous allegation against him is to the effect that he was
holder of ICICI Bank account in which the money had been
transferred in by impostor-accused persons.
10.1 Let me deal with aforesaid two aspects one by one
10.2 As regards booking of hotel, let me straightaway come to
the testimony of PW9 R.P. Chauhan. He was on duty in the night-shift
of 31.10.2007 and has proved the relevant Guest Register i.e. D-122.
It was shown to him during deposition and he admitted that such
register belonged to their hotel and entries on page no. 105 from
serial no. 1518 to 1525 were in his hand. As per entry at serial no.
1525, one Mr. David A. Johnson son of Sh. Perumal resident of G-124,
Wazirpur Colony, New Delhi had come to that hotel at about 10.00 PM
and got a room booked on the pretext that his bosses would be
coming from Jallandhar and would stay there. Accordingly Room No.
305 was booked for him and accused David A. Johnson signed such
register. Relevant page of such register has been proved as Ex.
PW9/A and signatures of David A. Johnson are at point Q-400 in token
of booking. Mobile Number and PAN Number of David A. Johnson are
also found mentioned. According to PW9 R.P. Chauhan, accused
David had come with three persons and one of those three persons
CBI Vs M. Suresh Babu etc 46/2011 57
had given visiting card of one hotel Hey Day Jallandhar. Room was
vacated next morning at about 5.30 AM and rent of Rs. 1500/- was
paid by David A. Johnson. It would be pertinent to mention here that
there is no cross-examination of this witness by A3. Undoubtedly,
when this witness was grilled by other accused, he deposed that he
could not identify such David A. Johnson but fact remains that
prosecution possesses one very decisive and clinching evidence
suggesting that such room was booked previous night by none other
than by David A. Johnson. I am referring to the report of handwriting
expert. PW42 Sh. R.S. Rana, Assistant Government Examiner of
Questioned Documents in CFSL, Shimla examined the documents and
with respect to signatures appearing at point Q-400, he opined that
person who had signed on S-238 to S-245 had also signed point
Q-400. S-238 to S-245 are specimen handwriting of accused David A.
Johnson which were taken on 24.04.2008 by IO Sh. M.N.P. Sinha and
these specimen signatures have been collectively exhibited as Ex.
PW42/Z17. I have seen the testimony of PW40 Sh. M.N.P. Sinha and
in examination-in-chief, astonishingly, he nowhere made any
reference regarding his ever taking signatures or specimen
handwriting of A3 David A. Johnson. Prosecution also did not find any
necessity of extracting such imperative fact from his mouth but fact
remains that there does not seem to be any real quarrel in this
regard. When statement of A3 u/s 313 Cr.P.C. was recorded, he
emphatically admitted that said room was booked by him.
Undoubtedly, he also claimed that he was working for one Mr.
Sandeep and he had booked the room as he was asked in this regard
by Mr. Sandeep but fact remains that he does not dispute that such
room was booked by him and does not dispute his signatures at point
CBI Vs M. Suresh Babu etc 46/2011 58
A400. Reference in this regard be made to answer given by him to
question no. 49 of statement u/s 313 Cr.P.C.
10.3 According to the case of prosecution, he was having
saving account with Connaught Place Branch of ICICI Bank. Such fact
is also not in dispute. A3 has categorically admitted that it was his
account. Account opening form has been proved as Ex. PW36/A7
which also bears his signatures as well as his photograph. I have
already noticed above that prosecution has not been able to show
that it was accused Navneet Singh who had deposited the amount in
the said bank account of A3. Fact, however, remains that substantial
amount was actually deposited in his bank account. Onus, therefore,
shifts on him to elucidate and enlighten as to who had deposited
such account in his bank account because such fact has to be
assumed within his special and exclusive knowledge. In his
statement us/ 313 Cr.P.C., he baldly claimed that such amount had
been deposited in his said bank account by Mr. Sandeep. He,
however, failed to prove and substantiate such theory about Mr.
Sandeep in any manner whatsoever. No suggestion in this regard
was put to any of the witness either. So much so, he did not examine
any witness in order to prove such fact regarding Mr. Sandeep.
10.4 According to the case of prosecution, a sum of Rs. 4.90
lacs had been deposited in his bank account. It is not a small amount
and A3 cannot be permitted to casually deny such fact and cannot
baldly blame Mr. Sandeep, a stranger to this court, for such deposit.
Thus, prosecution has been able to prove two very crucial aspects
against A3. He was the one who had booked the room at Hotel
CBI Vs M. Suresh Babu etc 46/2011 59
Airport Inn. He was the one in whose bank account a sum of Rs. 4.90
lacs was transferred/deposited and such amount was towards the
illegal procurement of travel documents i.e. passport and visa and it
has already been noticed above that passports so prepared were
found to be forged passports. Undoubtedly, he himself had not filled
any application form or had not accompanied A1 to Ministry of
External Affairs (MEA) at the time of preparation of passports but by
that time A1, A2 & A3 were sharing common object. I need not
again remind myself that PW35 Sh. Surjeet Singh has categorically
deposed that A2 had met him and told him that a group was to go to
Germany in 2007 and that he could arrange any person of his choice
and amount etc. was given to A2 in August 2007.
10.5 Thus participation of A3 stands established and it is
proved that he, too, was in league with A1.
11.0 Let me now see the complicity of A1. Sh. Rakesh
Malhotra has defended A1 M. Suresh Babu and has argued that A1
has been made a sacrificial lamb and has nothing to do with the
present case. According to him, following points are required to be
seen and assessed:-
i) Whether A1 was with Rajputana Rifles or CW-1?
ii) Whether he had been assigned any job related to filling of application forms or obtaining of passports?
iii) Whether he had filled any particular in any application or in any of the passports and had pasted any photograph on the passports?
iv) Whether he was having any sort of connection with his co-accused?
CBI Vs M. Suresh Babu etc 46/2011 60
v) Whether there was any conspiracy between him and his co-accused?
vi) Whether any incriminating article had been recovered from his house search?
vii) Whether there is any evidence showing that he had abused his official position?
11.1 Sh. Malhotra has taken me through the testimony of
witnesses examined by the prosecution and has contended that
prosecution has miserably failed to show any of the aforesaid fact.
11.2 I am mindful of the fact that Col. Satinder Singh has not
graced the witness box. So much so, even his statement u/s 161
Cr.P.C. was never recorded during the investigation and he was not
shown any of the application forms. I feel that prosecution
committed grave blunder with respect to such glaring omission.
Prosecution wants the Court to believe that A1 had forged the
signatures of Col. Satinder Singh. In such a situation, Col. Satinder
Singh himself was the best witness to prove such a material fact. For
utterly mysterious reasons, investigating agency, deliberately or
otherwise, did not choose to examine Col. Satinder Singh. Faced with
such illogical approach of investigating agency, let me see as to what
other senior Army officials have to offer.
11.3 PW21 Col. K.S. Ram Mohan was posted as Director CW-II
and had visited Germany along with the team of 40 personnel. He
has given narration of steps required to be taken when any such
invitation is received. I need not go into minute details about such
aspect but I would certainly hasten to add that the selection of
CBI Vs M. Suresh Babu etc 46/2011 61
musicians for participation in such type of musical festival cannot be
left to the whims and fancies of lowly ranked Army official. A Lance
Naik is not in any position to have any existent say and to decide as
to who would or who should participate in such music festival and
who should not. Undoubtedly, inputs can always be taken from a
musician but to hold that he was having the final say or that he was
the deciding authority would be too fanciful to believe. According to
PW21 Col. K.S. Ram Mohan, invitation for Germany visit was received
from Indian Embassy in Germany sometime in June, 2007 and name
of one Colonel, one Lieutenant Colonel were cleared along with 40
other personnel. He deposed that he knew accused M. Suresh Babu
who was working in the office of CW-1. A1 was basically a musician
and his services were taken as and when required. He was also
shown list Ex. PW21/A and he deposed that persons mentioned at
serial no. 1 to 40 were supposed to visit Germany and names
mentioned at serial no. 43 to 52 were reserved members. He also
deposed that he along with 51 officials was to proceed to Germany
and he himself was the leader of the delegation that visited Germany
for 30.10.2007 to 07.11.2007 for participation in 13th Military Music
Festival, Berlin. He also deposed that name of M. Suresh Babu was in
the reserved list but he visited Germany in place of one Amarjeet
whose name had been deleted.
11.4 List of officials, who were supposed to visit Berlin, was
prepared. Such list is Ex. PW39/A and it purportedly bears signatures
of Col. Satinder Singh. According to prosecution, such signatures
were never put by Col. Satinder Singh. Such list was also sent to
Ministry of External Affairs for preparation of passports vide letter no.
CBI Vs M. Suresh Babu etc 46/2011 62
B/42496/Germany/AG/CW-1 dated 23.10.2007 and even on such
letter D-29 (Ex. PW19/A), as per the case of prosecution, A1 had
forged the signatures of Col. Satinder Singh.
11.5 I am not able to absorb that A1 would dare to forge
signatures of Col. Satinder Singh on such letter. According to PW21
Col. K.S. Ram Mohan, this letter does not bear signatures of Col.
Satinder Singh but prosecution has failed to explicate as to what
accused M. Suresh Babu was going to drive by forging signatures of
Col. Satinder Singh on such a plain letter. After all, the list must have
been prepared and approved by the senior officers and to ensure the
participation of such military officials, in such music festival, officials
passports were urgently required.
11.6 Let me assume, for a moment, that intention of M. Suresh
Babu was other than bona fide and he might have thought of
preparing forged passports for reserved officials but prosecution has
not been able to explain as to why M. Suresh Babu would forge
signature of Col. Satinder Singh on letter Ex. PW19/A and also as to
why he would forge his signatures on all the 52 application forms.
11.7 All the application forms were shown to Col. K.S. Ram
Mohan during recording of his testimony and he, point blank, claimed
that none of the applications were bearing signatures of Col. Satinder
Singh. He also denied the authenticity of the stamp affixed on such
application forms. According to him, he is well-acquainted with the
signatures and handwriting of Col. Satinder Singh and he had seen
him writing and signing. However, as regards M. Suresh Babu, he
CBI Vs M. Suresh Babu etc 46/2011 63
deposed that he did not know as to who had authorized accused M.
Suresh Babu to submit application forms for issuance of passports in
the Ministry of External Affairs. When he was shown Ex. PW19/A
which was containing an endorsement made by accused M. Suresh
Babu to the effect that he had received 51 passports and visa note
for Germany, he merely claimed that these signatures must be of
accused M. Suresh Babu supplementing that he was not much
familiar with the signatures of accused M. Suresh Babu. In his cross-
examination, he admitted that though application forms did not bear
genuine signatures of Col. Satinder Singh nor his official stamp yet
passports were issued to officials and officials had visited Germany as
well. As regards his own application, he admitted that he had filled
up his application and gave the same to accused M. Suresh Babu for
processing. There is nothing much further in his cross-examination.
11.8 PW33 Lt. Col. A.P.S. Randhawa was posted as Joint
Director with R&W Section of Army Headquarters, New Delhi.
According to him, his official passport was got prepared by Lance
Naik M. Suresh Babu i.e. A1 and according to him, backside of his
application i.e. application Ex. PW21/A4 was filled up by M. Suresh
Babu. Back portion i.e. Sr. no. 12 is meant for purpose of visit and
the country to be visited on official duty and according to specific and
categoric deposition of Lt. Col. Randhawa, such column was filled
by none other than accused M. Suresh Babu. This witness was
also shown Ex. PW19/A and he identified handwriting of A1 M. Suresh
Babu even therein. In his cross-examination, he admitted that A1
was musician with Army Band but he also used to do some
documentation work. He also deposed that he also used to see him
CBI Vs M. Suresh Babu etc 46/2011 64
working in C&W Section. It was suggested to him that he had sent
some application forms for issuance of passports to Lance Naik M.
Suresh Babu at the asking of Brig. H.P.S. Bedi. This suggestion itself
indicates that accused M. Suresh Babu does not dispute that he was
given possession of application forms. According to Lt. Col.
Randhawa, C&W was a large organization in which there were
number of officers. He also admitted that he had seen M. Suresh
Babu writing while filling up the form of other persons also. He also
admitted that Col. Satinder Singh was Director of CW-1 and he was
overall in-charge of that trip and Col. K.S. Ram Mohan was the head
of delegation. He also deposed that his passport was given to
him by Lance Naik M. Suresh Babu. Such fact is unchallenged.
11.9 PW34 Girish Kumar had gone on Malaysian tour of the
Army Band and according to him, when official passports were
required for said visit, similar type of letter was prepared for MEA.
He, being Joint Director CW-1 at that time, had signed the same and
such letter and relevant list was sent to Ministry of External Affairs for
preparation of official passports. Such letter Ex. PW34/A (D81) and
letter Ex. PW19/A are similar in format. Only difference is that Ex.
PW19/A pertains to the visit of Germany and letter Ex. PW34/A
pertains to tour of Malaysia. There is allegation of forgery with
respect to Germany visit. However, even when music band was to go
to Malaysia for participation in Kulalampur International Tattoo 2007,
all the requisite formalities were carried out through A1 M. Suresh
Babu and his handwriting and signatures are there in the similar
manner on Ex. PW34/A also. Prosecution, naturally, wants to show
that for all such types of visits, duties used to be assigned to A1 M.
CBI Vs M. Suresh Babu etc 46/2011 65
Suresh Babu and he used to take application forms to MEA and used
to obtain official passport from MEA. According to learned Prosecutor,
Army officials and officials of MEA were having blind faith in him as on
previous occasions also, he had obtained official passports from MEA
and, therefore, when the passports were to be prepared for Germany
visit, A1 took undue advantage of the faith reposed in him and
pasted photographs of private persons on the passports meant for
reserved officials and sold them with the help of his co-accused
persons.
11.10 I have carefully seen Ex. PW34/A as well as Ex. PW19/A
and from these two documents coupled with testimony of senior
Army officers and handwriting expert, one thing can be safely
deduced. Even if A1 was posted in Rajputana Rifles, his services
used to be taken for preparation of passports. I must admire that he
has a very neat hand and the handwriting appearing on both these
documents i.e. Ex. PW19/A and Ex. PW34/A is same and identical in
nature. In application Ex. PW19/A, there is endorsement at point Q2
to the effect that accused M. Suresh Babu had received 51 passports
and visa note for Germany. There are signatures of M. Suresh Babu
beneath such endorsement. Similar type of endorsement is found to
be there in Ex. PW34/A vide which M. Suresh Babu had received 23
official passports and one diplomatic passport on 24.08.2007 meant
for Malaysia visit. As per the report of handwriting expert,
questioned handwriting tallied with the handwriting of A1 as
appearing in specimen handwriting sheets S-1 to S-140. S-1 to S-140
are contained in D-2 (supplementary documents) and have been
collectively exhibited as Ex. PW42/Z13 and A1 to A16 are admitted
CBI Vs M. Suresh Babu etc 46/2011 66
documents containing handwriting of A1 M. Suresh Babu which have
been proved as Ex. PW42/Z11. A1 to A16 are application forms which
were filled for the participation in Kualalampur Music Festival and
these contain admitted handwriting of A1 M. Suresh Babu and
according to handwriting expert, author of such specimen
handwriting and admitted documents was also responsible for the
questioned handwriting.
11.11 I would, however, lay stress on the point that no definite
opinion could be given with respect to alleged forged signatures of
Col. Satinder Singh.
11.12 It would also be useful to make mention of testimony of
PW11 Brig. H.P.S. Bedi and PW14 Col. K.S. Chadha. Name of PW11
Brig. H.P.S. Bedi figures in the charge-sheet. He has not been sent up
to face trial. In the year 2007, he was posted as Deputy Director
General (Ceremonial & Welfare Department) and he had gone to
Kualalampur, Malaysia leading delegation of Army Band Contingent
for participation in International Band Tattoo 2007. He went on a
diplomatic passport but it was later on found that he was not entitled
to such diplomatic passport. According to him, his Personal Assistant
Swapan Kumar approached accused M. Suresh Babu and A1 was
handed over filled up application and later on he was given
diplomatic passport.
11.13 There is no dispute to the fact that PW11 Brig. H.P.S. Bedi
was not entitled to diplomatic passport. According to case of
prosecution, A1 M. Suresh Babu misled him and procured diplomatic
CBI Vs M. Suresh Babu etc 46/2011 67
passport for him. In this regard, to some extent, I feel that even
PW11 Brig. H.P.S. Bedi himself and his Personal Assistant are to be
blamed for the goof up. I do not find any criminality in this regard on
the part of M. Suresh Babu as PW11 Brig. H.P.S. Bedi himself had
deposed that when he asked Suresh Babu whether some application
was required for diplomatic passport, accused M. Suresh Babu
pleaded his ignorance. He also deposed that rather his Personal
Assistant Swapan Kumar had told him that he could get diplomatic
passport as he was head of delegation. This witness has also
clarified in his cross-examination that the Department of Ceremonial
Function is headed by Adjutant General and below him was Director
General (C&W) and then Additional Director General, then Deputy
Director General and then Director (Ceremonial) and then Joint
Director. He also admitted that Col. Satinder Singh was Director and
Sh. K.S. Chadha was Joint Director at the relevant time. He also
deposed that selection of names of the Army officials, who were to
participate in such music festival, used to be made by the Inspector
of the Army Band with the advice of Joint Director (Ceremonial). He
also deposed that such passports were supposed to be received by
Col. Satinder Singh or Col. K.S. Chadha.
11.14 I have also seen testimony of PW14 Col. K.S. Chadha. He
is also not directly related with the present controversy related to
Germany visit. His wife Ms. Harleen Chadha was not in Army but she
had also been provided with an official passport and according to
prosecution, it was again done by A1 M. Suresh Babu. Fact, however,
remains that such official passport was never used by her. It would
be important to mention here that even Ms. Harleen Chadha was not
CBI Vs M. Suresh Babu etc 46/2011 68
sent up to face trial on the ground that there was not sufficient
evidence against her. She and Brig. H.P.S. Bedi were interrogated
during investigation as they both got passports to which they were
not entitled to and according to CBI, these passport were made
available to them by accused M. Suresh Babu. At the cost of
repetition, I would say that these two officials have nothing to do
with the Germany visit. PW14 Col. K.S. Chadha has also given
hierarchy of officials in Ceremonial Department and he also admitted
that accused M. Suresh Babu was a musician and was posted at
Rajputana Rifles and according to him, list of officials going abroad
used to be approved by Director General on the recommendation of
Deputy Director General (Ceremonial).
11.15 From the testimony on record, it cannot be said that
accused M. Suresh Babu was never entrusted with any job related to
filling up of application forms or for preparation of passports. On
previous such types of visits, his services were utilized.
11.16 With respect to the visit of Germany also, he was asked
to coordinate. Naturally, names were not finalized by him but there
does not seem to be any difficulty in holding that he had filled up
applications of such officials. Such act, by itself, did not amount to
any illegal or wrong act and was not absurd either. However, it is not
made clear by the prosecution as to why he would forge signatures of
Col. Satinder Singh on all the applications forms and also on the
forwarding letter sent to MEA for preparation of official passports. It
was an official invitation and there was political clearance from the
concerned quarter and in any eventuality, such list had to be
CBI Vs M. Suresh Babu etc 46/2011 69
dispatched to MEA for issuance of official passports. Col. Satinder
Singh has not graced the witness box and the report of handwriting
expert does not give any definite opinion as to who had forged the
signatures of Col. Satinder Singh and in such a situation, it cannot be
automatically inferred that merely because these applications were
brought to MEA by M. Suresh Babu, he and only he would have forged
the signatures of Col. Satinder Singh.
11.17 He had come at the office of MEA and in this regard
testimony PW19 Surjeet Singh is of vital importance. He was working
as Section Officer at Patiala House in PV-II Section, Ministry of
External Affairs, New Delhi. He has given procedure of issuance of
official/diplomatic passport. According to him, whenever there used
to be large number of applications for the issuance of passport for
the officials of Defence Ministry then officials of Defence Ministry also
used to come to their office for helping in preparation of passports of
the officials of their department. He was shown letter Ex. PW19/A
and he admitted that such letter was received for issuance of
passports and he had endorsed issuance of 30 passports and signed
also and then such letter was given to dealing clerk i.e. Smt. Suresh
Rani Sharma and 30 blank passports were handed over to defence
officials for preparing the passports. In the next breath, he deposed
that in the present case, probably such blank passports were given to
accused M. Suresh Babu. After the passports were filled up there,
such passports were checked by their staff and then those were
produced before him for signatures and he had signed those
passports. He admitted that Brig. H.P.S. Bedi was not entitled to
diplomatic passport and to that effect, there was error on his part.
CBI Vs M. Suresh Babu etc 46/2011 70
He claimed that there was no specific instruction to hand over blank
passport to staff of Defence Ministry for filling up of passport but such
practice was there for last many years as Army officials were known
for their integrity. He also admitted that identity cards were also
required for issuance of passports but on some occasions, Army
officials did not attach identity cards along with the application forms.
In the present case, no identity card was attached with the
application forms. He also admitted that photographs, which are
attached with the application forms, are also required to be attested
by gazette officer. He admitted that he had allowed applications for
issuance of 30 passports that day and he could not say whether other
20 passports were issued or not. Defence has attempted to dig out a
huge mileage out of the aforesaid fact. According to defence
counsel, he had allowed only 30 passports and in such a situation,
there was no occasion for accused M. Suresh Babu to have collected
51 passports. However, he has forgotten the endorsement made by
accused M. Suresh Babu himself whereby he acknowledged having
received 51 passports.
11.18 PW18 Smt. Suresh Rani entered into witness box but here
testimony remained incomplete and she was partly examined and
was never produced thereafter and, therefore, her part examination
cannot be read.
11.19 According to the case of prosecution, applications for
procuring official passports were filled by A1 and in order to drive
home said vital fact, CBI is heavily banking upon the report GEQD.
However, before adverting to such report, I would like to say that
CBI Vs M. Suresh Babu etc 46/2011 71
various other Army officials have not been able to positively confirm
such fact. Reference be made to the testimony of PW33 Col. A.P.S.
Randhawa and of PW34 Girish Kumar. PW33 Col. A.P.S. Randhawa
deposed that front portion of the application had been filled by him in
his own hand but backside of the application appeared to have been
filled by Lance Naik M. Suresh Babu. Similarly, PW34 Girish Kumar
has also deposed that handwriting on letter Ex. PW34/A (D-81)
appeared to be of accused M. Suresh Babu. These witnesses were
not very categoric and positive about handwriting. There are several
other Army officials who have also tried to smash up the prosecution
case by claiming that these application forms have not been filled by
A1 at all. Reference be made to the testimony PW20 Vijay Mohan,
PW22 Sh. A.K. Barua and PW24 Gagan Lama. There are few
witnesses who are not aware as to who had filled such application
forms.
11.20 As far as PW29 Ranjeet Kumar is concerned, he has
categorically deposed before the Court that application for issuance
of diplomatic/official passport i.e. D-121 (Ex. PW29/A) was bearing his
signatures and his photograph and such application for the issuance
of official passport was got signed from him by accused M. Suresh
Babu and its columns were filled in by accused M. Suresh Babu.
There is no challenge to such deposition. Portion, which has
been alleged to be written by accused M. Suresh Babu in said
application D-121 has been marked as Q266 and Q269 and as per
categoric report of handwriting expert, person who had written Q-266
and Q269 had also written S-1 to S-140 and A1 to A16. Thus, these
handwritings categorically match with the handwriting of A1 M.
CBI Vs M. Suresh Babu etc 46/2011 72
Suresh Babu.
11.21 Sh. R.S. Rana has been working as Assistant GEQD in
CFSL Unit of Shimla for last more than 17 years and defence counsels
have made futile and ineffective attempt to attack his report by
claiming that Sh. Rana was not expert in the field of examination of
handwritings. I have seen his deposition and considering the fact
that he is posted in CFSL Unit as Assistant GEQD for more than 17
years and that in his career, he has examined thousands of
documents, his expertise on the subject is beyond challenge and
cannot be questioned.
11.22 There does not seem to be any dispute regarding his
handwriting being there on the application for official passports with
respect to the previous visit of music band to Malaysia. PW34 Girish
Kumar has categorically deposed that for Malaysia Trip which was
from 27.08.2007 to 10.09.2007, 24 total persons had been selected
and visited Malaysia. Record pertaining to said Malaysia visit has
also been placed on record and the letter for issuance of passport
was written by none other than Sh. Girish Kumar and accused M.
Suresh Babu was the person who had been entrusted with the job of
collection of passports and he had gone to the office of Ministry of
External Affairs and had obtained one diplomatic passport and 23
official passports for said Malaysia visit of Army Band.
11.23 I have already made reference to the endorsement made
by accused M. Suresh Babu regarding receiving of passport on Ex.
PW34/A as well as on Ex. PW19/A. I have also seen handwriting
CBI Vs M. Suresh Babu etc 46/2011 73
appearing at portion Q1 and Q2 of Ex. PW19/A and it needs no
discerning eyes to note that handwriting style is distinctly evidently
similar and even the expert had come to the same opinion and has
opined that author of these questioned handwriting as well were by
the person who had written specimen handwriting S-1 to S-140 and
A1 to A16. S-1 to S-140 and A1 to A16 are handwriting of A1 only.
S-1 to S-140 are contained in D-2 (supplementary list) and have been
collectively exhibited as Ex. PW42/Z13. A1 to A 16 have been
collectively exhibited as Ex. PW42/Z11 and these are the application
forms which were also filled by accused while music band had gone
to Malaysia to participate in International Tattoo in 2007. Thus, it
becomes apparent that applications were filled by accused M. Suresh
Babu i.e. A1. It also becomes evident that when the passports were
prepared by MEA officials, all such 51 passports were collected by
none other than A1 from the office of MEA. Reference be made to
Ex. PW19/A where at portion Q2 accused M. Suresh Babu made
endorsement regarding receiving of 51 passports and visa note for
Germany. This happens to be the most crucial fact of the case. It
clearly indicates that accused had submitted applications before
MEA. It also seems to me that he had helped officials of MEA in
preparing of passport as the handwriting in the passports is also
found to be similar. Report of Handwriting Expert also confirms the
same.
11.24 Undoubtedly, there is no material before me that it was
accused M. Suresh Babu who had forged the signatures of Col.
Satinder Singh. Even the report of handwriting expert does not come
to the rescue of prosecution in this regard. However, I cannot lose
CBI Vs M. Suresh Babu etc 46/2011 74
sight of the fact that it was A1 only who had produced these
applications before the officials of MEA. Bare glimpse of such
applications would show that on some of the applications,
photographs were of some other private persons and not of the
concerned Army officials. A1 was integral member of Army Band and
he had gone abroad on previous Army concerts and it would be
hardly digestible that he would not be knowing such a vital fact more
so when he himself was assisting the official of MEA in preparing
passports. If his intention was not malafide, he would have
immediately reacted and would have brought to the knowledge of his
superior that something was suspicious and shady. He, however, did
not retort at all and rather very calmly and coolly collected all the 51
passports. After he came into possession of such 51 passports, onus
was on to him to have shown that he had handed over these 51
passports to his superiors or deposited the same with the office of
Army. Nothing of that sort had been claimed by him and five of such
passports, which were carrying photographs of private persons, were
recovered from the possession of his co-accused on 01.10.2007. This
clearly reveals that he himself was part of the conspiracy.
Undoubtedly, officials of MEA were also at fault. They displayed
complete laxity in preparing passports and virtually allowed an
outsider to fill up the passports. Even if workload was heavy, it was
absolutely wrong on their part to have entrusted the job to an
outsider. When PW19 entered into witness box, he was shown one
official passport (D-127), such passport was bearing stamp of Ministry
of External Affairs but it was blank and unsigned one. Such passport
Ex. PW19/DA is one of the documents relied upon by the prosecution.
According to PW19, it was never seized by CBI from their office.
CBI Vs M. Suresh Babu etc 46/2011 75
PW19 came up with an unexpected and startling answer and stated
that perhaps M. Suresh Babu had stolen such passport from office. If
this was really so, MEA officials should have lodged some
report/complaint regarding theft of passport. Nothing of that sort was
done and in order to hide acts of their own negligence, officials of
Ministry of External Affairs are trying to blame accused M. Suresh
Babu by claiming that he might have stolen the passport which was
never ever the case of prosecution.
11.25 It is also not comprehensible as to why CBI did not try to
interrogate accused immediately when the case had been assigned
to CBI without any delay. CBI rather allowed A1 to remain in custody
of Army for approximately one year and did not even formally arrest
him when the challan was prepared & filed. CBI should have made
thorough interrogation from this prime accused at the earliest
available opportunity. According to case of prosecution and Army,
house of accused M. Suresh Babu was searched and during such
search, Army had recovered 44 passports. This is really intriguing as
to why at the time of filing of supplementary charge-sheet,
investigating agency concluded that no criminality could be
attributed from mere recovery of passports from his house. It is also
not made clear as to why all such 44 passports were never produced
before the Court. As I have already noticed above, such recovery was
effected by Army officials under the supervision of Major Deepak
Srivastava. Major Deepak Srivastava has not graced the witness box.
PW26 Sub. Mohd. Aslam Ansari was examined by the CBI and
according to him on 11.11.2007 on the direction of Major Deepak
Srivastava, he went to the house of accused M. Suresh Babu and
CBI Vs M. Suresh Babu etc 46/2011 76
accused M. Suresh Babu was in custody and he also accompanied
them and then house of accused M. Suresh Babu was searched and
relevant documents collected from search were brought to Raj Rifle
Centre, Delhi Cantt. He deposed that on 14.11.2007 house of
accused M. Suresh Babu was searched again. I take a little pause
here. This is all what he has to say in his examination-in-chief. In his
entire such examination, he did not bother to give the details of the
documents which had been recovered from the search. He failed to
assign any reason as to why when search had already taken place on
11.11.2007, there was requirement of searching the house all over
again on 14.11.2007. After 11.11.2007, house of accused M. Suresh
was locked and the keys were deposited with the Quarter Guard. In
such a situation, second search becomes meaningless because the
things were under the control of Army officials and there was every
opportunity of planting any incriminating article. Thus, search dated
11.11.2007 and 14.11.2007 is found shrouded with mystery. Major
Deepak Srivastava has not graced the witness box and there is no
explanation as to why second search was done. Moreover, even as
per the case of CBI, there was no criminality emanating from the
recovery of such passports.
11.26 I have seen the deposition of sanctioning authorities.
PW38 R. Swaminathan was posted as Joint Secretary (Counselor
Passport & Visa) and he was competent authority to grant sanction
with respect to prosecution of accused persons for their prosecution
under relevant sections of Passports Act. Such sanction order dated
12.05.2008 has been proved as Ex. PW38/A. Sanction of A1 M.
Suresh Babu for prosecution under Prevention of Corruption Act was
CBI Vs M. Suresh Babu etc 46/2011 77
granted by PW43 Brig. S.D. Nair and he has proved the sanction as
Ex. PW41/B. He has deposed that after careful perusal of entire
record including statements of witnesses, Army Headquarter Report,
Court of Inquiry, house search report, statements recorded by CBI
and on the basis of allegations and circumstances, he accorded such
sanction for prosecution of accused M. Suresh Babu. It has been
argued by defence that any case instituted without proper sanction
would fail as it amounts to manifest defect in the prosecution. It has
also been argued that there has to be proper application of mind.
Reliance has been placed upon MOHD. IQBAL AHMED VS. STATE
OF A.P. AIR 1979 SC 677 and MAJOR SOM NATH VS. UNION OF
INDIA AIR 1971 SC 1910. There is no dispute regarding the
established principle of law but fact remains that I have not been able
to find out any material which may suggest that sanction was given
by any incompetent authority or without application of mind.
Discussion of the matter by sanctioning authority with legal
luminaries, before according sanction, will instead show that
sanctioning authority took the task with utmost seriousness. It rather
reflects extra application of mind not non-application.
11.27 PW40 Nripendra Mohan Prasad Sinha was entrusted with
investigation of this case. He has also deposed that accused M.
Suresh Babu was working as Lance Naik in Welfare and Ceremonial
Directorate and was responsible for obtaining applications from the
nominated officials for sending the same to MEA and he had taken
such applications to MEA. He has also deposed that accused M.
Suresh Babu, using his good office, obtained passports from MEA and
filled in the details in such passports in his own handwriting and
CBI Vs M. Suresh Babu etc 46/2011 78
pasted, in some of the passports, photographs of other accused who
were not members of Army Band and received 51 passports from
MEA. He has also deposed that during investigation, he had seized
all such five passports i.e. Ex. PW1/B, Ex. PW2/C, Ex. PW3/B, Ex.
PW4/B and Ex. PW5/B. He has also given other vivid details of
prosecution case and has proved the relevant documents as well. In
his cross-examination, he admitted that as far as accused persons,
other than A1 M. Suresh Babu, were concerned, they had neither
prepared the passports nor pasted photographs on such passports.
He has also admitted that there was no evidence to show that A4
and A7 had met A1 or A2. He claimed in his cross-examination that
five separate complaints were lodged by Immigration Authorities
against five accused persons and Boarding Passes along with
respective passports were seized and such documents were
forwarded to IGI Police Station and, therefore, there was no separate
seizure memo prepared by Delhi Police showing seizure of passports.
He also admitted that he did not seize any baggage tag during
investigation and according to him, all the five imposters were
apprehended at the Immigration Counter. Undoubtedly, he admitted
that Brig. H.P.S. Bedi was not eligible to have diplomatic passport and
similarly Ms. Harleen Chadha was not eligible to have official passport
but he denied that his investigation was unfair and full of vested
interests. He also admitted that Col. Satinder Singh was in-charge of
CW-I and Col. K.S. Chadha was subordinate to Col. Satinder Singh and
he was also responsible for supervision of foreign visits by the Army
Band. He claimed that Brig. H.P.S. Bedi, Col. Satinder Singh and Lt.
Col. K.S. Chadha were supervising the visit with active assistance of
accused M. Suresh Babu. He also claimed in cross-examination that
CBI Vs M. Suresh Babu etc 46/2011 79
list of participants was prepared by accused M. Suresh Babu as to
who was to go and who would not. However, I feel that he has
stretched himself too far and too away. I have already noticed above
that accused M. Suresh Babu could have only given suggestion but
he was not the deciding authority in this regard. In his cross-
examination, he also made reference to the statement of PW Suresh
Rani Sharma who had claimed that 5-6 Army personnel used to come
to office of MEA and used to fill up passports and used to paste the
photographs. He claimed that he tried to ascertain the names of
such other officials but could come to know about the name of M.
Suresh Babu only and could not pinpoint anyone other. Merely
because investigating agency could not lay its hands upon any such
other Army official does not mean that even M. Suresh Babu should
be permitted to go scot free. From the testimony on record, it
becomes very much perceptible that he was the one who had filled
up the application forms and had taken the same to the office of MEA
and even collected 51 passports. He cannot wriggle out of his own
endorsement made by him in this regard.
11.28 PW41 Insp. Anand Sarup had also done part investigation
and had filed supplementary charge-sheet after obtaining sanction.
He has also deposed that he had seized personal belonging
recovered from the house search of accused M. Suresh Babu which
were already recovered by Army officials and these were seized by
him vide memo Ex. PW41/C. These were handed over to him by
Major Deepak Srivastava. He had seized relevant files from the office
of MEA vide memo Ex. PW41/D. He had also collected the relevant
documents pertaining to ICICI Bank.
CBI Vs M. Suresh Babu etc 46/2011 80
11.29 It is also important to mention that Court of Inquiry
proceedings were also initiated by Army Authorities against A1 but
for reason best known to the investigating agency, the outcome of
such proceedings was not brought to the knowledge of the Court.
However, when I searched Internet and particularly the website of
Armed Forces Tribunal, I came across one judgment dated 07.05.2012
passed by Armed Forces Tribunal Principal Bench, New Delhi in OA
No. 729/2010 which reveals that by order dated 26.11.2010 the
services of accused M. Suresh Babu were dispensed with u/s 20 (3) of
Army Act read with Rule 17 of Army Rules. Such order was
challenged by accused M. Suresh Babu but Tribunal dismissed his
petition.
11.30 Keeping in mind the entire material available on record
and in view of my foregoing discussion, I am of the opinion that
complicity of A1 M. Suresh Babu stands proved very clearly.
Prosecution has been able to prove following facts qua A1 M. Suresh
Babu.
(i) He was in Rajputana Rifles but his services were
used to be availed by Directorate of CW-1 as well.
(ii) Being musician, he used to participate in Army
Band and had, on previous occasions also, gone abroad with Army
Band.
(iii) Army officials had faith in him and on previous
occasions also when Army Band was to go to Malaysia and Chile, task
was handed over to A1 M. Suresh Babu to fill up the application
CBI Vs M. Suresh Babu etc 46/2011 81
forms of the selected Army officials and to take such forms to the
office of MEA and to obtain the passports from MEA.
(iv) With respect to participation in Army Band in 13th
Berlin Military Band Festival, 42 names were shortlisted besides 10
reserved officials. A1 filled up application forms for obtaining official
passports and the purpose of visit on all applications in serial no. 12
are found to be filled by him.
(v) He was also given the task of taking all such filled
applications to MEA for obtaining official passports. He met officials
of MEA in their office situated at Patiala House Complex and since
MEA officials also had trust in him, he was allowed to fill up relevant
details even in the passports.
(vi) At that time, he was possessing all the application
forms including applications Ex. PW1/A, Ex. PW2/A, Ex. PW3/A, Ex.
PW4/A and Ex. PW5/A. All these applications are also found to be
filled by none other than A1 M. Suresh Babu. All these were
containing photographs of private persons and this automatically
indicates that A1 was even possessing photographs of such five
private persons which he got through A2 and A3. Such photographs
were pasted in the passports and he even filled up the relevant
columns in the passports as well without any murmur. He collected
all such 51 passports and visa note for Germany from office of MEA
on 25.10.2007 by making endorsement at point Q-2 in Ex. PW19/A.
Official passports were also got prepared for 10 reserved officials and
out of these 10 reserved officials, five passports were having
photographs of private persons who are also accused herein and
these five passports were ultimately recovered from the possession
of five accused i.e. A2 & A5 to A8.
CBI Vs M. Suresh Babu etc 46/2011 82
(vii) He never deposited these passports meant for
reserved officials with office of Army or with CW-1. Remaining five
such passports were also recovered from his house search. It clearly
indicates his malafide intention to use the official passports meant for
reserved officials.
(viii) Being in Army and being integral member of Army
Band, he would have immediately come to know that the
photographs on the passports or for that matter on the application
forms were not of the concerned Army officials but despite that he
did not bring any such fact to the notice of his superiors which in
itself suggests that he misused the opportunity and ditched the faith
reposed in him by the Army officials and MEA officials.
(ix) Except A1 no other accused was in Army. Only A1
knew that Army Band had been invited to participate in Berlin
Festival. PW35 Surjit Singh has categorically deposed that A2 had
told him that a group was to go to Germany and A2 had also told him
that one Suresh Babu was also working with him. This clearly
indicates that A1 had joined A2 in order to execute his plan and
similarly A3 was also made part of conspiracy who accordingly
booked a room in hotel Airport Inn and stayed there with other
accused and even money had been transferred in his account of ICICI
Bank for facilitating illegal human trafficking.
11.31 A1 was public servant. He got occasion to possess blank
passports and to fill them being a public servant. He abused his
official position and obtained pecuniary advantage for him and his co-
accused and made available passports i.e. valuable things for his
CBI Vs M. Suresh Babu etc 46/2011 83
other co-accused i.e. A2 and A5 to A8.
11.32 Purpose behind making conspiracy a crime is to curb
effusive power to do harm by acting in combination. The
encouragement and support which co-conspirators give to one
another rendering object achievable which, if left to individual effort,
would have been unattainable. I need not remind myself that
conspiracy is hatched in secrecy and on most of the occasions, Court
is compelled to draw inference with respect to hatching of criminal
conspiracy. It is not always possible to have pinpointed, precise and
tangible evidence suggesting conspiracy. It has to be drawn together
from facts and attendant circumstances. The evidence led before the
Court clearly indicates that A1, A2 & A3 were part of the larger
conspiracy. The very agreement is the ingredient of the offence. It is
not necessary that all the conspirators must know each and every
detail of the conspiracy as long as they are co-participators in the
main object of the conspiracy. There may be so many devices and
techniques adopted to achieve the common goal of the conspiracy
and there may be division of performances in the chain of actions
with one common object to achieve the real end of which every
collaborator must be aware and in which each one of them must be
interested. There must be unity of object or purpose but there may
be plurality of means sometimes even unknown to one another,
amongst the conspirators. In achieving the goal several acts may be
committed by some of the conspirators even unknown to the others.
The only relevant factor is that all means adopted and illegal acts
done must be and purported to be in furtherance of the object of the
conspiracy. In Mohd. Khalid vs State Of West Bengal 2002 (2)
CBI Vs M. Suresh Babu etc 46/2011 84
ALD Cri 610, it has been observed as under:-
“Privacy and secrecy are more characteristics of a conspiracy,
than of a loud discussion in an elevated place open to public
view. Direct evidence in proof of a conspiracy is seldom
available, offence of conspiracy can be proved by either direct
or circumstantial evidence. It is not always possible to give
affirmative evidence about the date of the formation of the
criminal conspiracy, about the persons who took part in the
formation of the conspiracy, about the object, with the
objectors set before themselves as the object of conspiracy,
and about the manner in which the object of conspiracy is to be
carried out, all this is necessarily a matter of inference.
12.0 Before concluding the matter, I would certainly
comment that investigation has been found wanting on
following points:-
i. CBI has not even attempted to give any reason much less a
plausible one as to why Col. Satinder Singh was not joined in
investigation. After all, he was the one whose signature had
been forged. Curiously, during investigation, he was not
confronted with such alleged signatures. He should have
positively denied such signatures to be his signatures. CBI left
everything for deriving inference. It took specimen signatures
of Col. Satinder Singh but that alone was not sufficient. Court
wanted to hear from horse’s mouth but for fanciful reason, this
gentleman has not been cited as witness. I called for case diary
but failed to find any reference about col. Satinder Singh even
CBI Vs M. Suresh Babu etc 46/2011 85
there. Undeniably, court has ample powers and could have
called him as court witness. But, it was felt that at the fag end
of trial, it really would not have served the real purpose. To be
candid, he should have come in open all by himself during
investigation instead of shying away. He was heading CW-1. He
was the one who must have finalized and cleared the names of
all musicians. He was, if truth be told, accountable to
some extent. Fact, however, remains that even if I had called
him, he would have very conveniently denied his signing
anywhere. CBI shirked from its responsibility and failed to
question him when it mattered most.
ii. Director, CBI is overall Incharge and has abundant powers to
supervise the entire machinery. He cannot work as a mute
spectator and should definitely intervene if investigation is
below par but he should not dictate any further.
iii. Complete list of Band Members, who left India and who
returned from Berlin has not been placed on record. Who
knows there might be a person or persons who travelled
as Musician to Berlin but never returned? Same stands
true for visit of Malaysia and Chile. Passports of all the
persons who visited Berlin for said festival should have been
seized. At least, photocopies should have been placed on
record. It would have shown whether all other passports were
filled in the hands of A1 or someone else. CBI failed to
investigate properly in this regard and rather some of the
seized passports were immediately released.
CBI Vs M. Suresh Babu etc 46/2011 86
iv. As per PW 29 Ranjeet Kumar, he had visited Germany. But he
also claims that initially, he was sent back by IGI Airport as
there was some defect in his passport. Nobody knows as to
what type of defect is he referring to? Interestingly, his
passport was allegedly recovered from house search of A1 but
such passport does not show that it was used for travelling to
Germany at all. This is completely absurd. This would rather
suggest that he was having two passports because, as per
CBI’s own case, he had visited Germany and participated in
Berlin Festival. One on record does not bear any visa stamp at
all. In such a confusing scenario, CBI should have placed on
record all the passports used or copies thereof.
v. Prosecution has not thrown light as to why A1 would commit
forgery with respect to all 51 applications. If I have understood
the case of CBI properly, his intention was to misuse the
passports meant for reserved members. But CBI has not been
able to answer as to why A1 allegedly forged signatures of Col.
Satinder Singh on all 51 applications. No necessity was felt to
investigate the said point.
vi. In such type of matters, there has to be complete file with all
the relevant notings. Such file, from Army Headquarter, has not
been collected by CBI. Court does not know why? Such file
would have shown as to who was calling the shots?
vii. Any application seeking passport is required to be made in
CBI Vs M. Suresh Babu etc 46/2011 87
duplicate. Nobody knows where that other set is? CBI also did
not make any endeavour to note that for such type of
applications meant for official passports, copy of identity card
and attested photograph are also required to be submitted. No
investigation was made on that line either. File of MEA with
complete notings was also never seized or produced before the
court.
viii. Case was quickly entrusted to CBI, but despite that CBI did not
think it prudent to at least formally arrest and interrogate A1 in
the present matter. As per chargesheet, he was never arrested
in the present matter till filing of chargesheet though he was in
custody of Army. In such a sensitive matter, it was very much
required that his version was got ascertained as early as
possible. Nothing of that sort has happened. His disclosure is
also not there.
ix. No attempt was made to ascertain the role of names appearing
on Pay-in-slips of ICICI Bank. It was not attempted to ascertain
as to who filled those slips.
x. Customer copies of such Pay-in-slips of ICICI Bank were seized
from Kulwinder Singh, advocate. These were very important
documents but CBI took those very nonchalantly. So much so, it
did not even record statement of Kulwinder Singh to the effect
as to how he came into possession of same? A very crucial
piece of evidence went begging, courtesy CBI.
CBI Vs M. Suresh Babu etc 46/2011 88
xi. 44 passports were allegedly recovered from house of A1. No
reason has been assigned as to why most of those passports
were hurriedly released and not made part of challan.
Surprisingly as per supplementary challan, no criminality could
be attributed merely because of such recovery.
xii. Why no action was proposed against MEA officials who were
apparently very much lax and negligent.
xiii. No effort was made to ascertain as to who filled the Departure
Cards at IGI Airport or the alleged Boarding Passes? No light
was thrown regarding boarding passes either.
xiv) Harleen Chadha got official passport whereas she was civilian.
Unnecessarily, accused Suresh Babu has been made liable for
her getting such passport whereas when list for visit to
Malaysia was finalized, she was shown Lt. Col. Army number,
meant for her, was also displayed in the list. She was also
shown in the rank of Joint Director. Naturally, this could not
have been done by A1 at all. PW34 Sh. Girish Kumar, the
then Jt. Director CW-1 was responsible for preparation
of list. He had signed the list as well as application form
of Harleen. Resolute investigation could have nailed
down actual culprit for said lapse.
12.1 Faulty investigation does not robotically mean that entire
case has to be consigned to dustbin. Defective investigation cannot
become a basis of acquittal and it becomes the duty of the Court, in
CBI Vs M. Suresh Babu etc 46/2011 89
such a situation, to make the investigating agency wiser instead of
letting the accused off the hook.
12.2 The conduct of Investigating Agency should not stand on
the way of evaluating the evidence in finding out the truth and if the
material on record is otherwise realistic and ingenuous then such
pedestrian investigation should not matter much as otherwise there
would be failure in delivering substantial justice. In the case of
imperfect investigation, the Court has to be circumspect in evaluating
the evidence. But it would not be right in acquitting an accused
person solely on account of the defect as that would tantamount to
playing into the hands of the Investigating Officer if the investigation
is designedly defective . Reference, in this regard, be made to RAM
BALI VS. STATE OF UP 2004 CRI.L.J. 2490 and also to KARNEL
SINGH V. STATE OF M.P. (1995 (5) SCC 518). Here, I find that
investigation was defective but, I don’t find the omission to be
motivated or deliberate.
12.3 In the case in hand, lapse might be unintentional and,
therefore, investigating agency is warned in this regard and I express
my discontentment on record.
CONCLUSION
13.0 Thus, A1 is held guilty for committing offences
punishable u/s 120-B read with Section
419/420/465/467/468/471 IPC and 12 of Passports Act and
Section 13 (2)/13 (1) (d) of Prevention of Corruption Act.
However, I would certainly like to say that it does not stand proved
CBI Vs M. Suresh Babu etc 46/2011 90
that he had impersonated Col. Satinder Singh or that he himself had
forged the signatures of Col. Satinder Singh. He conspired with A2 &
A3. Bogus passengers were got arranged in terms of conspiracy. A1
cheated MEA authorities and obtained passport from then by
intentionally and deliberately furnishing incorrect particulars. He is
also held guilty for all the aforesaid offences individually
excepting sec 419 IPC.
13.1 Similarly, his accomplice A2 & A3 are also held
guilty for offences punishable u/s 120-B read with Section
419/420/465/467/468/471 IPC and 12 of Passports Act read
with Section 13 (2)/13 (1) (d) of Prevention of Corruption Act.
They are also held guilty for said offences individually barring
Section 419 IPC and sec 13 (2)/13 (1) (d) of PC Act. It has,
however, already been held that A2 was present at Airport
and was actually possessing forged passport and used the
same as well and for that he has been held liable for offences
u/s 419/420/471 IPC and u/s 12 Passports Act.
13.2 A5 to A8 are, individually, held guilty and
convicted u/s 419, 420 and u/s 471 IPC as well as u/s 12 of
Passports Act. They are not found to be part of any
conspiracy.
13.3 A4 is acquitted of all charges. Bail bonds of A4 are
cancelled. His surety stands discharged.
CBI Vs M. Suresh Babu etc 46/2011 91
14.0 Case be now listed for arguments on sentence qua
convicts.
Announced in Open Court
July 13, 2012 (MANOJ JAIN) Special Judge (PC Act Cases) (CBI) South District: Saket Courts: New Delhi
CBI Vs M. Suresh Babu etc 46/2011 92
CC No. 46/2011CBI Vs. M. Suresh Babu etc.
Tuesday, July 17 2012
Present: Sh. Jagbir Singh & Sh. Shiv Charan Sharma, learned Public Prosecutors for CBI.
Convict M. Suresh Babu in person with counsel Sh. Rakesh Malhotra.
Convict David A. Johnson & Nagarajan @ Raja in person with counsel Sh. Pandey.
Convict Rajender Singh, Gurdev Singh and Gurjant Singh in person with counsel Sh. Paramjeet Singh.
Convict Varinder Singh in person with counsel Sh. Kulwinder Singh.
(A-4 Navneet Singh has already been acquitted).
1 Heard arguments on sentence.
2 Learned PP has contended that all the convicts are required to
be dealt with stern hand and should be meted out harsh punishment.
According to him, convict M. Suresh Babu has shown audacity to defame
entire Army by abusing his official capacity and by making forged official
passports available to private persons. He also states that other convicts also
do not deserve any mercy.
3 On the other hand, Sh. Malhotra has prayed that convict M.
Suresh Babu be given a chance to reform himself. He has reiterated that he
is victim of circumstances and has been made scapegoat by senior Army
officials. He has also contended that he remained behind the bars for
approximately 26 months including one year when he was in the custody of
CBI Vs M. Suresh Babu etc 46/2011 93
Army authorities. It has also been argued that he has a wife and five year old
daughter who are totally dependent upon him. He has also lost his job and he
should be given a chance of rehabilitate himself.
4 Sh. Pandey has prayed for taking lenient view qua convict David
A. Johnson and Nagarajan @ Raja. As far as convict Nagarajan is
concerned, it has been argued that he remained behind the bars for eight
months and 19 days and his mother is eighty years old and his entire family is
dependent upon him. As regards convict David A. Johnson, he remained in
jail for 90 days and he has a sister who is physically and mentally challenged
and his parents and family are dependent upon him. It has also been argued
that they never misused liberty of bail during the trial either.
5 Sh. Paramjeet Singh, counsel for convicts Rajender Singh,
Gurdev Singh and Gurjant Singh has prayed that all these three convicts
Rajender Singh, Gurdev Singh and Gurjant Singh have learnt a big lesson of
their life. According to him, they are also, actually, the victims as they merely
wanted to go abroad in search of employment and had no intention to travel
of any forged document. Sh. Kulwinder Singh has also raised similar
contentions for convict Varinder Singh.
6 I have given my thoughtful consideration to the rival contentions
and carefully perused the entire material available on record.
7 As far as convicts Rajender Singh, Gurdev Singh, Varinder
Singh and Gurjant Singh are concerned, I am conscious of the fact that they
only wanted to go abroad and they were least bothered as to how such travel
documents were made available to them. They are not found part of criminal
conspiracy either. To some extent, they can also be called victims though fact
CBI Vs M. Suresh Babu etc 46/2011 94
remains that they are themselves to be squarely blamed as they
impersonated and knowingly used forged official passports for leaving
country. They were, however, nabbed at the Airport itself. I am told that they
all except convict Varinder Singh have spent around two months behind the
bars during investigation. As far as convict Varinder Singh is concerned, he
spent two weeks in jail. Since, he was found suffering from spinal injury, he
was granted exemption from time to time during the trial as well.
8 However, as far as convict Nagarajan @ Raja is concerned, not
only did he try to travel on forged official passport but was also a key player in
the larger conspiracy.
9 Convict David A. Johnson is found to be the apparent
beneficiary as the money had been transferred in his bank account and he
was also instrumental in booking accommodation.
10 As far as convict M. Suresh Babu is concerned, he has tried to
smash and smear the good image of Army. He was the one who had got the
official passports prepared and received such official passports from MEA
and, therefore, it was his primary duty to hand over these official passports to
the Army authority. However, his intention was other than bonafide and
wanted to send private persons abroad through such official passports. I,
however, cannot lose sight of the fact that there is no instance of his previous
involvement of any nature whatsoever and his services have already been
dispensed with u/s 20 (3) Army Act.
11 Justice demands that courts should impose punishment befitting
the crime so that the courts reflect public abhorrence of the crime. But, in its
over-zealousness, court is not supposed to get swayed away. It has to be
CBI Vs M. Suresh Babu etc 46/2011 95
wary of the rights of convict and then to assess whether to award retributive
or deterrent sentence.
12 The principle of proportion between the crime and the
punishment is the principle of ‘just deserts. For deciding just and appropriate
sentence, the aggravating and mitigating factors and circumstances in which
the offence has been committed are to be delicately balanced in a
dispassionate manner. Such act of balancing is indeed a difficult task as there
exists no straitjacket formula furnishing foolproof criterion to weigh up just and
appropriate punishment as every criminal case has its own peculiarity.
13 Keeping in mind overall facts and circumstances of the case, I
sentence convicts Rajender Singh, Gurdev Singh, Gurjant Singh and Varinder
Singh as under:
(i) For offence u/s 419 IPC, they are sentenced to the period already undergone by them and fined Rs. 5000/- in default thereof SI for a period of one month.
(ii) For offence u/s 420 IPC, they are sentenced to the period already undergone by them and fined Rs. 6000/- in default thereof SI for a period of one month.
(iii) For offence u/s 471 IPC, they are sentenced to the period already undergone by them and fined Rs. 5000/- in default thereof SI for a period of one month.
(iv) For offence u/s 12 of Passports Act, they are sentenced to the period already undergone by them and fined Rs. 5000/- in default thereof SI for a period of one month.
14 Convict M. Suresh Babu, Nagarajan Israel @ Raja and David A.
Johnson are sentenced as under:
(i) For offence u/s 419 r/w section 120B IPC, each of them is
CBI Vs M. Suresh Babu etc 46/2011 96
sentenced to SI for one year and fined Rs. 5000/- each in default thereof further SI for a period of three months.
(ii) For offence u/s 420 r/w section 120B IPC, each of them is sentenced to SI for three years and fined Rs. 5000/- each in default thereof further SI for a period of three months.
(iii) For offence u/s 465 r/w section 120B IPC, each of them is sentenced to SI for one year and fined Rs. 3000/- each in default thereof further SI for a period of two months. (iv) For offence u/s 467 r/w section 120B IPC, each of them is sentenced to SI for three years and fined Rs. 5000/- each in default thereof further SI for a period of three months.
(v) For offence u/s 468 r/w section 120B IPC, each of them is sentenced to SI for three years and fined Rs. 5000/- each in default thereof further SI for a period of three months.
(vi) For offence u/s 471 r/w section 120B IPC, each of them is sentenced to SI for one year and fined Rs. 3000/- each in default thereof further SI for a period of two months.
(vii) For offence u/s 12 Passports Act r/w section 120B IPC, each of them is sentenced to SI for two years and fined Rs. 5000/- each in default thereof further SI for a period of three months.
(viii) For offence u/s 13(2)/13 (1) (d) PC Act r/w section 120B IPC, each of them is sentenced to SI for three year and fined Rs. 25,000/- in default thereof further SI for a period of one year.
15 Convict M. Suresh Babu is individually sentenced as under:
(i) For offence u/s 420, he is sentenced to SI for three years and fined Rs. 5000/- in default thereof further SI for a period of three months.
(ii) For offence u/s 465 IPC, he sentenced to SI for one year and fined Rs. 3000/- in default thereof further SI for a period of two months.
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(iii) For offence u/s 467 IPC, he is sentenced to SI for three years and fined Rs. 5000/- in default thereof further SI for a period of three months.
(iv) For offence u/s 468 IPC, he is sentenced to SI for three years and fined Rs. 5000/- in default thereof further SI for a period of three months.
(v) For offence u/s 471 IPC, he is sentenced to SI for one year and fined Rs. 3000/- in default thereof further SI for a period of two months.
(vi) For offence u/s 12 Passports Act, he is sentenced to SI for two years and fined Rs. 5000/- in default thereof further SI for a period of three months.
(vii) For offence u/s 13(2)/13 (1) (d) PC Act, he is sentenced to SI for three years and fined Rs. 25,000/- in default thereof further SI for a period of one year.
16 Convict is Nagarajan Israel @ Raja is individually sentenced as
under:
(i) For offence u/s 419 IPC, he is sentenced to the period already undergone by them and fined Rs. 5000/- in default thereof SI for a period of one month.
(ii) For offence u/s 420, he is sentenced to SI for three years and fined Rs. 5000/- in default thereof further SI for a period of three months.
(iii) For offence u/s 465 IPC, he sentenced to SI for one year and fined Rs. 3000/- in default thereof further SI for a period of two months. (iv) For offence u/s 467 IPC, he is sentenced to SI for three years and fined Rs. 5000/- in default thereof further SI for a period of three months.
(v) For offence u/s 468 IPC, he is sentenced to SI for three years and fined Rs. 5000/- in default thereof further SI for a period of three months.
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(vi) For offence u/s 471 IPC, he is sentenced to SI for one year and fined Rs. 3000/- in default thereof further SI for a period of two months.
(vii) For offence u/s 12 Passports Act, he is sentenced to SI for two years and fined Rs. 5000/- in default thereof further SI for a period of three months.
17 Convict David A. Johnson is individually sentenced as under:
(i) For offence u/s 420, he is sentenced to SI for three years and fined Rs. 5000/- in default thereof further SI for a period of three months.
(ii) For offence u/s 465 IPC, he sentenced to SI for one year and fined Rs. 3000/- in default thereof further SI for a period of two months. (iii) For offence u/s 467 IPC, he is sentenced to SI for three years and fined Rs. 5000/- in default thereof further SI for a period of three months.
(iv) For offence u/s 468 IPC, he is sentenced to SI for three years and fined Rs. 5000/- in default thereof further SI for a period of three months.
(v) For offence u/s 471 IPC, he is sentenced to SI for one year and fined Rs. 3000/- in default thereof further SI for a period of two months.
(vi) For offence u/s 12 Passports Act, he is sentenced to SI for two years and fined Rs. 5000/- in default thereof further SI for a period of three months.
18 All the sentences would run concurrently.
19 Needless to say that all the convicts would be entitled to
benefit of Section 428 Cr.P.C. However, as far as convict M. Suresh
Babu is concerned, he would be entitled to set off only with respect to
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the period he spent behind the bars in connection with the present case
of CBI. It is not possible to grant him benefit with respect to the alleged
detention period of one year during Court Martial proceedings for the
reasons that Legislature has used words “same case” and secondly
there is no material whatsoever on record or brought by defence
suggesting that his alleged detention was under Court Martial
proceedings and the duration of such detention period.
20 A copy of judgment and order on sentence be given to all the
convicts free of cost.
21 All the convicts have also been made aware about the fact that
they have right to file appeal.
22 Ahlmad is directed to page and book-mark the file as per
the latest circular so as to enable digitization of the entire record.
23 File be consigned to record Room.
Announced in the open Court on this 17th July of 2012.
(MANOJ JAIN)Special Judge (PC Act) (CBI)
South Distt: Saket Courts: New Delhi
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