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Exhibit No.282
IN THE COURT OF SPECIAL JUDGE FOR GR. BOMBAYSPECIAL CASE NO. 10 OF 2011.
State of Maharashtra. )(At the instance of CBI )RC No.9(E)/2004/EOU7. )....Complainant Versus
1. Abdul Karim Ladsaheb Telgi )Age: 52 years. )R/o. Shirin Manzil, 1st floor, )Voltan Road, Opp. Electric House, )Colaba, Mumbai. )
)2. Shabir Ahmed Mustaq Ahmed Shaikh )Age: 55. )R/o. Chawl No.46, Room No. 363, )Gajanan Colony, Shivaji Nagar, )Govandi, Mumbai 400 043. )
)3. Mohd. Sayed Mohd. Yasin )R/o. 22/3B, Bright Street, )Park Circus, Calcutta. )
)4. Ramratan Shreeniwas Soni )Age: 47 years. )R/o. 57/59, 3rd floor, Bhuleshwar, )Mumbai 400 002. (At present in Jail). )
)5. Sanjay Jayant Gaikwad )R/o. C204, Ran Darshan Bldg., )Chandiwali Mhada, Sakinaka, )Andheri (E), Mumbai. )
)
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6. Riyaz Ahmed Mokashi )R/o. House No. 258, )Nagender Matti Haveri, ) Karnataka. )
)7. Mallesh Ballappa Dhullanwar )R/o. Vidya Nagar, Khanpur, )Dist. Belgaun, Karnataka. )
)8. Daniel V. Kanikraj )R/o. Khanpur, Dist. Belgaun, )Karnataka. )
)9. Ganpat Waman Jadhav )Age: 49 years. )R/o. 5, Gul Mohar Garden Lane, )7, ShereEPunjab Society, )N.C. Road, Mahakali Caves Road, )Andheri (E), Mumbai 400 093. )
)10. Enam Mukhtarali Pirbhai Choudhary )R/o. Asmita RegencyII, Flat No. A605, )Naya Nagar, Mira Road, Thane, )Maharashtra. )....Accused
Mr. Pradeep Gharat, Special P.P. for ComplainantCBI.A1 & A2 appearing in Person.Mr. Nitin Sejpal, learned advocate for Accused nos. 3, 7 & 8.Mr. Jain, learned advocate for Accused nos. 4 & 6.Mr. R. Sawant, learned advocate for Accused no.5.Mr. I.P. Bagaria, learned advocate for Accused no.9.Mr. Iyengar, learned advocate for Accused no.10.
CORAM:HIS HONOUR THE SPECIAL JUDGE SHRI.A. SUBRAMANIAM . DATE: 29TH FEBRUARY, 2012.
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J U D G M E N T
1. The present accused are being tried for alleged offences
punishable u/s. 255, 256, 258, 259, 260, 465, 466, 467, 468, 471, 472,
420, nineteen, 218, 221 r/w 120B of the IPC and 63(a),(b) of Bombay
Stamps Act, 1ten58 and 13(1)(d) r/w 13(2) of Prevention of
Corruption Act, 1988.
2. This case pertains to the stamp scam which rocked the entire
nation and common known as “Telgi Stamp Scam”. This case is one of
the initial cases which came to be registered against Telgi. The present
case deals with first FIR which was registered at GB,CB,CID Mumbai
bearing No. 41/1995 and was subsequently filed as “A” summary.
Subsequently, when in the year 2002, the enormity of the scam of Telgi
came to light. Thereafter the investigation, in view of the directions
and orders of the Hon'ble High Court of Bombay Special Investigating
Team (SIT) was formed and investigation was transferred to SIT .
After some time, the said investigation came to be transferred to the
CBI in view of the directions of the Hon'ble Supreme Court of India.
The matter was transferred to CBI in view of the directions passed by
the Hon'ble Supreme Court of India in Writ Petition (Civil) No.
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522/2003d dated 15.3.2004.
3. The CBI registered crime bearing No. RC9/E/2004
CBI,EOW, Mumbai. During the course of these transactions, charge
sheet came to be filed initially by the DCB,CID bearing Sessions case
No. 753 of 2003 ,886/03, 757 and 488/03 against accused nos. 17.
The chargesheet against accused no 9 came to be filed by SIT. Charge
sheet against accused no 7,8 came to be filed by CBI in the Special
Court. The chargesheet filed by the CBI came to be registered as
Sessions Case No. 550/2006. As all the above Sessions Cases were
terminated or investigation completed by the chargesheet of CBI,
these Sessions Case Nos. 753/2003, 756/2003, 747/2003, 488/2003,
stand merged with one. The Sessions case no 550/06 was later
numbered as special case no. 1011. All the chargesheets were filed
before the Learned Metropolitan Magistrate and as the offences were
exclusively triable by the Court of Sessions, came to be committed to
the Court of Session. As other trials of Telgi were allotted to this court,
all the said Sessions cases came to be allotted to the Special Court.
Initially the trial was conducted under number 550/2006 but as
provisions of PC Act were invoked the Case was reregistered as special
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case no 1011.
4. It is the case of the prosecution that the Superintendent of
General Stamp Office in Mumbai found that accused no.1 and his
colleagues/associates were dealing in counterfeit stamps. He
accordingly approached the Crime Branch, Office of the DCB,CID and
was directed to lodge separate offences pertaining to each counterfeit
case discovered within its particular jurisdiction. Accordingly, he
approached the Crime branch and was redirected to GBCID where he
had lodged complaint. The accused no. 9 was given investigation of
the said offence. He made some enquiries with some of the witnesses
viz. Ashok Leyland Finance, bank officials etc. In the mean while,
accused no.1 filed anticipatory bail application before the Hon'ble
Sessions Court which was objected to by the accused no.9 and
subsequently rejected. Subsequent thereto, the accused no.1 preferred
an application for grant of bail in the event of arrest, before the
Hon'ble High Court of Bombay. During the course of proceedings
before the Hon'ble High Court of Bombay, at the time when order was
being passed or as soon as the order was passed, accused no.1 escaped
from the Hon'ble High Court. Thereafter the present accused No.9
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Jadhav tried to search his whereabouts, but he was not traceable
according to him. Subsequently, Telgi was arrested by Bangalore police
in the year 2002 and 2003 and the present cases were again reopened.
Initially, the investigation was thereafter given to DCB,CID. They
carried out the investigation and found some of the accomplices viz.
accused nos. 3,4 & 5 were the suppliers of stamps to accused no.1
( hereinafter referred to as suppliers) . Accused nos. 2,6,7,8 &10 were
working with accused no.1 and were taking part in the counterfeit
process (hereinafter referred to as worker accused). Accused no 9 is
the accused investigation officer.
5. Initially accused nos. 1 to 8 were detected by DCB,CID and
chargesheets came to be filed. Subsequently, there were few
circumstances which raised hue and cry and led to filing of a Writ
Petition before the Hon'ble High Court of Bombay by social activist
Shri Anna Hazare. In that proceedings, the Hon'ble High Court of
Bombay formed the special Investigation Team to look into the offences
against Telgi. During the course of proceedings, it was prima facie, felt
that certain police officers were also responsible and hence, the
Hon'ble High Court of Bombay directed investigation pertaining to
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culpability of police officers. Accordingly, investigation was carried out
and it was found that acts and omissions by accused no. 9 were done
purposefully to assist Telgi. Various acts and omissions of accused
Jadhav were enumerated which he performed or failed to perform
during his course of investigation. It is also alleged that he prepared a
false panchnama of seizure from Mopalwar.
6. Subsequently in view of the order of the Hon'ble Supreme
Court of India, investigation was handed over to the CBI. As other
similar cases were pending in this court the chargesheet filed came to
be committed and came to be clubbed in this court. During the course
of trial, the prosecution prayed for filing of sanction and invoking
provisions of P.C. Act also against accused no.9Jadhav. Same was
allowed after hearing the accused .
7. During the course of investigation, Special Adhesive Stamps
were handed over to accused no.9Jadhav initially, which subsequently
handed over to CBI. The various statements of Telgi, Ashok Leyland
officials, and other accused also investigated into, various other co
workers of accused no.1 were investigated, some of the coworkers
were dropped and were not tried and made as witnesses, the
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documents were forwarded to Security Press, FSL and GEQD for
examination. After receiving report and recording statements of
various witnesses and considering the facts of the case, charge came to
be framed against the accused as per the chargesheet filed.
8. My learned predecessor was pleased to frame charge
against the accused. The charge was read over and explained to the
accused. All the accused pleaded not guilty and claimed to be tried.
9. The prosecution in pursuance thereto, led their evidence.
The prosecution in all examined 61 witnesses. P.W. 1 is Bhagwan Hule,
police officer in GB.CB,CID whose alleged false presence was marked
during the panchnama. P.W. 2 Dilip Deshmukh is officer IO of DCB
CID. P.W. 3 is Mopalwar, Superintendent of stamps and complainant.
P.W. 4 is the alleged panch to false panchnama prepared by the accused
no9Jadhav. P.W. 5 is the police personnel of GB CID who is also
falsely alleged to have gone for raid with accused no 9, PW 6 & 7 are
workers in the office of Telgi , P.W. 8 is the IO of DCB CID, P.W. 9 Shri
Bhole is also IO of the SIT, P.W. 10 is the Sanctioning authority under
the PC Act. PW 11 is the sanctioning authority under the Stamp Act.
PW 12 is the sanctioning authority. P13 & PW 14 are the persons
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related to Mohd Yasin. Pw 15 is the Sr officer of Accused Jadhav in GB,
CID, PW 16 is driver of Mohd Yasin. PW 17 is the investigating officer
of CBI and Pw18 is the Ld Magistrate who recorded the confession of
Telgi
10. Prosecution also relied upon number of documents viz. the
licence of Telgi , application of Telgi for licence, the agreement having
special adhesive stamp collected from Ashok Leyland, various accounts,
statements and account opening forms of Telgi of State Bank of India,
Bank of Baroda, sanction, the agreements having forged, adhesive
stamps from Ashok Leyland, various extracts and hotel registers,
opinion of the expert, subsequent receipts of the GSO, forged receipts
of the GSO, subsequent signatures and subsequent stamp impressions
of the GSO Office, the case diary of investigation maintained by
accused no.9 Jadhav. Most often documents were admitted by the
accused. Thereafter the prosecution closed their evidence.
11. As there was incriminating evidence against the accused,
my learned predecessor recorded statements of the accused u/s. 313 of
Cr.P.C. Accused no.1 accepted partly his guilt, but submits that the
complainant Mopalwar was also involved in the incident and hence, he
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should also be prosecuted accordingly. He also tendered a detailed
written statement. He has also pointed out that he is poor, he has no
money and he is suffering from various ailments.
12. All other accused raised ground of false implication in the
case.
13. Accused Jadhav submitted a detailed written statement
along with supporting documents, taking of defence of false
implication. He has further stated that the cases were handled by the
investigating officer in 1995 as solitary/isolated occurrences and did
not know about the larger offences of Telgi. Investigation papers were
placed with many officers including, the crime P.I., Sr. P.I., ACP, DCP,
Minister, government, but none could comprehend the enormity of the
allegations. That investigation was done properly has been endorsed by
the Sr. P.I. and ACP. As regards escape of Telgi from the court, he
submits that he did not anticipate that Telgi would leave the court hall
before passing of order on anticipatory bail application. The charges of
escape of Telgi are made falsely without recording any statement from
any witnesses. He has been victimized. There was no guidance given
by the higher officials, the order of the Hon'ble High Court is
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misinterpreted and misclubbed. The provisions of P.C. Act were levied
against him as per the say of the Special Public Prosecutor. The S.P.P.
has participated in investigation and has associated himself with the
investigation. The invoking of P.C. Act shows the malafide intention of
the learned prosecutor. The effect of application of P.C. Act was not
disclosed earlier when the discharge application was filed. Material
witnesses like the ACP, the learned P.P. Mr. Nalawade have not been
examined. He had number of matters for investigation during that
time. He submitted that unless the author of the forgery could not be
arrested, the documents were not sent for verification to the expert,
specimen signatures were required, the witnesses who committed
forgery were not traced. Telgi was not arrested from 1996 or the
efforts of his arrest were also not made. He also relied upon a
gazette/notification of formation of SIT, transfer of investigation to the
SIT, affidavit of Mr. S. Barve before the Hon'ble High Court in Writ
Petition No. 865/2003, LAQs etc .
14. Accused No 10 was arrested later on. My LD predecessor
had framed charge against him. Subsequently the prosecution also led
evidence of 3 witnesses who are workers of Telgi. It was admitted that
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he was working in the office of Telgi.
15. As there was incriminating evidence against the accused, I
recorded his statement u/s 313 of CrPC . He put up defence of denial
and false implication.
16. The matter was heard earlier by my learned predecessor,
but thereafter she came to be transferred. I again reheard all the
accused. They also filed written arguments which have been perused
by me.
17. Heard Mr. Gharat learned S.P.P. for CBI. He submitted that
their contention is other cases should also be considered in this case in
addition he submitted that :
1st CC was filed by PI Khade 1642003 75303
2nd CC was filed by PI Khade 852003 75603
3st CC was filed by PI Khade 692003 75703
4th CC was filed by PI Khade 251103 84903
5th CC was filed by By SIT 45804
6th CC was filed by CBI 55006
All the accused have admitted all the documents except confession of accused
confession of Telgi proved at Exh 150
case diary by Jadhav Exh 91
Accused gave confession Moplawar became the accused. Said confession relied for
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making Mopalwar as accused. Hence confession accepted by court.
No remarks by Hon'ble High Court on the issue of joining of Mopalwar. Said order
subjudice.
Defence of false accused implicated and accused converted as witnesses. No
evidence as to why Jadhav exonerated the accused.
Perusal of crime reports shows that on recording the statements of Ponnudurai and
Yahoo, Jadhav knew the name of Riyaz and Mallesh. Did not carry out any
investigation in their behalf.
Adv Manish Parekh is the complainant in MRA Case. Knew names of Sanjay
Gaikwad and Soni from Mukhedkar(MRA). Involvement of Sanjay Gaikwad is seen
from statement of Manish parekh, called sanjay gaikwad, recorded his statement
and then was left off on 291195.
FROM STATEMENT OF SANJAY GAIKWAD records that S Gaikwad had licence to
sell stamps in Pune however he was selling stamps in Mumbai. Sufficient to show
his involvement in the office, did not interrogate the accused. Did not send the
stamp bills to ISP and FSK and GEQD, was incharge of Investigation for 1 and
1/2 yr. Arrest of Telgi not required for sending documents . Letter written by Telgi
seized. Handwriting of Telgi avaialable in this document and bank record. On
241095 Telgi appeared before IO. Why no inquiry by the I.O. of Telgi? Santosh
Sakpal accused was available. No investigation with him and or about him. Not
followed instructions of APP Borade. Took no steps to trace and arrest Ramratan
Soni. Should have verified the stamp seized from Soni. Bank a/c available. Did not
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verify from whom amounts received and to whom paid and for what purpose,
stamps could be reused. Hence examination by FSL necessary, Failure to nab
accused at the time of ABA traced address of Telgi at Thane. Came to know that
flat belonged to one Shahida. Shaida is wife of Telgi. Prepared bogus
panchnama. Consequences of such acts of IO important.
Result of mischief would have resulted in acquittal of accused. Shows that Jadhav
wanted the court to disbelieve the panchas and result in accused being acquitted.
Exhs. 33 and 34 letters by Mr. Mopalwar furnishing other addresses of Telgi.
Mopalwar was not IO and to be treated as such.
Exh 95 SR officer states that accused is in Mumbai and moving in political circles.
Gives direction to file supplementary chargesheet ( entry no 37).
As soon as it is shown by the sr. police officer that Telgi is available in Mumbai. The
case diary has been stopped writing, Exh. 95 goes against the accused. To help
accused chargesheet not prepared and filed in court.
Confession
proved through pw18 Magistrate.
Version of Sakpal contrary to Telgi confessional statement. Confession of Sakpal
not taken into consideration. Telgi's confession is inculpatory hence relied upon.
financial dealings of officers is revealed in the confession.
Rs 2 lakhs accepted by Jadhav, assured will not arrest.
PW 8 Pramod Khade
Chargesheets filed by him. Does not further evidence of accused.
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They were his superior officers but not in SIT or Telgi cases.
PW 9 Bhole officer of SIT.
Prosecution examined all the witnesses and has also shown the drawbacks of the
case.
“Ld. SPP requested for reading the earlier evidence in 111 and 112 and
defence Counsel has no objection and in continuation of the earlier
evidence, the mater proceeds.”
A/9 Ganpat Jadhav was doing the investigation since 31.7.1995 to
13.5.1997.
Knowledge of offence and allegations on Telgi not denied. Omission and
commissions not rebutted to be false. No explanation in this regard in cross
examination. Did not deny that Bhole was given satisfactory reply by A9.
Weekly report and chargesheet submission not complied
PW 5:
Did not accompany for ABA in HC. Even on touchstone of probability
there is no justification. Such alleged justification cannot justify
omissions and commissions.
PW Anami Roy:
Sanction PC act proved at Exh. 129, no other details required. Cross
shows that papers were read and appreciated, acts of omission and
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commission proved.
As regards other other accused
Prosecution Witness No.6 Anil Jayram Bambani
Prosecution Witness No.7 Mohd. Ismail Yahoo
Prosecution Witness No.13 Bimal Narayan Das
his evidence read together with PW 14, 16.
A/3 Mohd. Saeed Mohd. Yasin was dealing in stamp business and he
used to supply used stamps viz. Indian stamps, foreign bill stamps,
fiscal stamps, to accused Mohd. Yasin from 1984 to 1994.
Prosecution Witness No.16 Istiaque was working with accd.
Mohd.Yasin as a driver and used to pick up Karimbhai Mohd.Yasin
from Airport to Hotel Hira International, Calcutta, had seen small
stamps in his house many time, had seen the stamps were soaked in
water and thereafter after drying the same, they were packed up. Then
they used to take to Fly king Courier and other couriers.
Establishes role of accused Yaseen Calcutta.
Telgi is the main accused. He has given confession. Accused no.2 is
the first assistant of Telgi, accused no.3 is a supplier of stamps to
Banks, accused no.4 is the another supplier of stamps of Banks, the
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accused nos. 6 and 7 ,8 &1 0 are staff of Telgi, accused no5 is again
supplier of fake stamps , accused no. 8 is driver of Telgi, accused no. 9
Jadhav is the investigating officer who carried out investigation
initially. He submitted that Mr. Mopalwar first filed complaint with the
Cuffe Parade police station. The investigation was handed over to
accused no.9Jadhav. He did not file chargesheet by completing
investigation. Social activist Mr. Anna Hazare filed writ petition
bearing No. 865/2003 wherein the offence was transferred for
investigation to SIT. The Hon'ble High Court of Bombay passed orders
of finding of culpability of police officers, the private sector and public
sector employees on 4.9.2003. Incharge of SIT, SS Puri, Barve
investigated the offence in Mumbai and Jaiswal at Pune. He found
that there was lapse in investigation. Thereafter investigation was
handed over to CBI as per the directions of the Hon'ble Supreme Court
of India. He submitted that from the evidence of witnesses, the facts
of transaction with Ashok Leyland stands established, the various
amounts paid to Telgi also stands established, the issuance of receipts
to them of the firm of Telgi as well as the GSO also stands established.
The fact that accused no.1 received the amount stands established by
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the statements of the State Bank of India, Bank of Baroda and Citi
Bank. The encashment of cheque and transfer of sale proceeds in
favour of Bank stands established. He further submitted that from the
evidence of the officers of the GSO viz. Mr. Mopalwar, and documents
proved the fact that the fact that the stamps and affixation of stamps
being counterfeit and the receipts being forged stands established.
These witnesses have not been crossexamined and they established
the aspect of the receipts and stamps being counterfeit. The fact that
the receipts were embossed with fake stamps of GSO and also
signatures of the proper authorised person is also forged stands
established by these authorities. He submitted that this aspect is
further corroborated by the various experts viz. of the FSL, GEQD, ISP
etc. He further submitted that the complaint at Ex. 107 filed by the
Superintendent of Stamps Mr. Mopalwar stands established and in fact
is admitted. He submitted that accused nos.1 to 8 & 10 were part of
original conspiracy for using fraudulent adhesive stamps. Accused
Jadhav is an accused for aiding and abetting conspiracy of accused nos.
1 to 8 & 10 by intentional acts of omissions facilitating the conspiracy.
He further submitted that special adhesive stamps cannot be sold by
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anyone except by the GSO. Accused no.1 pretended to be a facilitator
in getting this process done from the GSO. Confession recorded by
Telgi in Special Case No. 10/2011 has to be considered. The
confession is corroborated by various witnesses and establishes the
case of prosecution. He further submitted that in view of the
confession made, P.W. 3 was made accused and hence, said confession
can also be read in this order. Considering all these circumstances, he
submitted that prosecution has established the conspiracy of
counterfeiting of stamps and forging of receipts and other aspects as
per the charge against all the accused and they be convicted.
18. All the parties suggested that Mr. Bagaria would lead the
arguments. He initially reiterated the contents of defence as to be
dealt in the written statement by accused no.9Jadhav. He further
submitted that the alleged omissions made by present accused are also
made by other police officers but they are not prosecuted. Even
Mukhedkar, investigating officer of MRA Marg police station had
committed the similar acts, but he has not been prosecuted. The entire
prosecution case according to him, relies upon the basis of
investigation carried out by MRA Marg police station. He further
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submitted that except filing of chargesheet by MRA Marg police
station, no other difference in investigation is made out. Apparently,
the rubber stamps used in MRA PS were not used in the present
offence, hence, involvement of Soni and Gaikwad in the present case
was not revealed. Further, he submitted that there was no link
available and in absence of this, further investigation could not be
carried out. Further he submitted that the investigation which was
paramount was that Telgi or said Javed should be interrogated and
only thereafter further course of investigation could be carried out. So
called investigation carried out by the SIT and CBI is based on
investigation which was available in other offences of Bangalore and
other police stations. From the evidence, it is apparent that after the
offence was registered by Mr. Mopalwar, Telgi closed all the businesses
and ran away. He submitted that the MRA Marg police station case
was purposefully hastened so that present accused would not have
proper chance of defence. For reasons best known to the prosecution,
the said trial was conducted separately. Right of fair trail has been
denied. No sanction was filed nor charges under prevention of
corruption act were contemplated when first chargesheet filed,
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cognizance taken without sanction u/s. 197, entire proceedings
vitiated. There is no sanction as contemplated by law. There is no
application of mind as applicable for grant of sanction and sanction is
invalid and illegal.
19. As regards confession, he submitted that confession can be
only corroborative piece of evidence. Confession narrated various
contradictory stories not supported by evidence on record. Not
reliable . Confession as after thought and should be brushed aside
in toto.
20. The CBI has not invoked provisions of PC Act. Even the
role of invoking of P.C. Act lies only with the prosecutor. It is apparent
from the Roznama dated 15.9.1995, that the trial of MRA Marg police
station though within the period of 19931996 was not clubbed with
these offence. All the procedure as contemplated by law was followed
by accused no.9Jadhav. Apparently, it is seen that no financial
transaction took place between accused nos. 1 and Jadhav and there is
no evidence to that effect. Even the subsequent investigating officer,
after accused Jadhav did not do any act but they were not prosecuted.
No cognizance under the P.C. Act by the Special Court. Joint trial is
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misjoinder. Even the order of finding the culpability of the I.O. was
applicable only to the Pune case and not the Mumbai case. Under the
garb of the Hon'ble High Court order, the accused Jadhav is
prosecuted. Trial is frustrated because of no order of reallotment. It is
contended that accused pleaded guilty and he should have been
removed from the array of accused. No provisions of Sec. 161 of the
Bombay Police Act, the investigation is to be carried out within six
months, provisions of Sec. 109, 218 cannot be attracted, the alleged
witnesses of staff of Telgi were in fact arraigned as accused. However,
their role is converted is not shown. There is no proper committal,
there is no cognizance, hence entire trial is vitiated. The learned P.P.
has violated the process of justice has associated himself with the
investigation because of his inefficiency, improbable conduct and has
not taken appropriate precaution. This is resulted in nullifying the
decision of the Hon'ble High Court of Bombay. The benefit of said
lapses has gone to the accused and entire trial stands vitiated.
21. As regards sanction and as regards the case diary leading
questions have been asked which cannot be accepted. There is no
application of mind while granting sanction to prosecute A/9 Jadhav.
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Shows non application of mind does not know how many
chargesheets filed or who carried out investigation. There was no
material before the Court to show that A/9 Jadhav had made monetary
gain in the present case. Hence 13 (d) of PC act is not applicable , no
disciplinary action or report was made by the superior officer who had
regularly perused the case diary. Further he submitted that the
investigation also was not taken away from accused no.9Jadhav which
shows that course of investigation was proper and correct. Not
arresting Telgi in the court cannot be an offence, the evidence of Mr.
Mopalwar and Mr. Nalawade regarding Hon'ble High Court incident is
important, independent witness Mr. Nalawade is not examined. In
fact, the application was strongly opposed and the anticipatory bail
application was rejected. If there was intention to support Telgi, the
application could not have been resisted as Telgi was granted bail in
other cases. The statements of Mr. Mopalwar and other witnesses were
recorded belatedly. The involvement of Mr. Mopalwar is apparent from
the confessional statement of Telgi, There is fraud played on the court,
Mr. Gharat appeared as Special P.P. on 13.2.1995. Fact was not
disclosed of constitution of SIT till 17.3.2004. Before involvement of
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accused Jadhav, no investigation was carried out by the SIT.
Investigation was carried out by SIT with predecided manner to
implicate Mr. Jadhav. All the omissions are committed by SIT also. The
constables PW 1 Hule , PW 5 cannot be relied upon as they have not
produced their pocket diary. Statement recorded belatedly, delay not
explained by prosecution, witness or IO. Delay was to pressurise the
lower officer/witness to implicate the accused. Statement was recorded
in absence of any document. Statement recorded after lapse of 14 yrs.
There could have been an error of judgment which could not have
been foreseen. The investigation was carried out to the best capacity,
capability and intellectuality etc. of investigating officer. Thus, the
investigation was in progress, the investigation was found to be proper
after eight years, their investigation is being faulted. Considering all
these circumstances, there was no intention to save Telgi, there is no
criminal conspiracy which shows arrest from the evidence .
On 1/12/1995 In court premises accused could not be arrested.
During the course of hearing accused could not have arrested. In
presence of court and prosecutor if any thing transpired, Prosecutor
could have reported to the superior officers /court about misconduct.
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Event outside the scope of 221. Running away of accused form the
court cannot be equated to assisting escape of the accused. pages
1684 as investigated by Accused are missing and misplaced.
From 10/1/2004 to 2/2/2004 no statements of other officers recorded.
No new material even then arrested. After sitting over same material
IO Bhole states that offence is made out. Jt. C.P. on same material says
that Investigation incorrect. High handed illegal arrest. and accused be
acquitted.
22. As regards, Soni, it is contended that there is no evidence
on record to show involvement of conspiracy. The register do not tally
or to involvement of Telgi with Soni. One or two visits prior to in the
year 1992 cannot suggest criminal conspiracy. As regards Mokashi,
there is no evidence except he being member of the staff and collecting
documents from marketing executive and returning back to the office.
As regards, Mallesh Dhulanwar also there is no such evidence,they are
merely workers and doing duty as told by their boss. All the witnesses
purporting to implicate them were shown as accused. The witnesses
were accomplices and participated of truth on crime, poor persons like
peon, driver etc. were arrested, mockery of investigation,rich people
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have to be left out, poor persons have been arrested, statements are
recorded in the year 2003, investigation carried out only as an eye
wash to the public at large, the execution who brought order and
documents and also gave the documents have been left and not
considered as accused, but poor employees like peon, driver etc. have
been made as an accused. The other officers are also accused of
conspiracy with Telgi, the investigation was false is apparent so much
so that accused were falsely implicated in Kurla case. the evidence of
Metro hotel does not establish any offence. No stamps have been
recovered or any incriminating articles have been recovered from any
of these accused. From the evidence of staff only one does not suggest
conspiracy. If chargesheet is believed that the FIR is false as these
persons named as an accused, if FIR is believed then the chargesheet
is false. It amounts to punishment of Peter for acts of Pan. There is no
direct evidence, there is no circumstantial evidence. The prosecution
has relied upon the evidence of accomplices viz. Mopalwar and hence
is not reliable. There is no evidence against these accused and they be
acquitted. Considering these circumstances, he submitted that even
from the accepting of the evidence of the prosecution, no case against
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the accused has been made out and hence, they be acquitted.
23. Also perused the written arguments as filed by Shri Jain on
behalf of accused and also heard accused M. Dullanwar and A2 Shaikh
in person. Also perused the written arguments and replies filed by the
respective parties.
24. From the record, Telgi has pleaded guilty. The other
accused withdrew their plea of guilt and stated that it was under
extraneous circumstances. Having considered these facts and
circumstances, it is seen that the plea of guilt is entered by some of the
accused was not free from extraneous circumstances. It is seen that the
other accused besides No 1 had pleaded guilty as they were
languishing in jail for a considerable time. Considering these
circumstances and various applications of pleading of guilty, these
circumstances stand highlighted. Thus, considering all these
circumstances, apparently, one cannot say that the plea was made
willingly or voluntarily. Moreover, the plea was recorded after the
entire evidence and statements u/s. 313 of Cr.P.C. was recorded. In all
the arguments and contentions raised and in the statements u/s. 313,
the accused have pleaded not guilty. Thus, considering these
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circumstances, as the plea by other accused exist, , I am not inclined to
accept any pleas of guilt of other accused and proceed to decide the
case on merit.
This case is unique in many ways.
1.The investigation is carried out of the offence by 4 different agencies,
Police, DCB CID,SIT and CBI
2.The first investigation officer is arrayed in this case as an accused.
3.Some of the investigating officers have been arrayed as accused in
MCOC case in Pune as accomplice of accused no 1.
4.The better part of investigation is after a period of 8 years of offence.
5.The cases were clubbed for common evidence, but separate evidence
was led in each of the three cases.
Considering all these circumstances and on perusal of the evidence on
record and the documentary evidence on record and written as well as
oral submissions of the parties, some issues viz. legal points have been
raised. These legal issues can be examined by accepting the charge
sheet and record as it is. Hence, I felt it appropriate to consider these
legal issues first then the facts of the case which I shall consider
separately hereinafter.
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The various legal issues raised are that of
1.limitation
2.being barred by Section 161 of the Bombay Police Act.
3.No cognizance have been taken of the offences as entire trial has
been vitiated,
4.misjoinder of the trial of the Investigating officer with other accused
persons,
5.misjoinder of charges pertaining to confession, clubbing of cases,
6.alleged fraud by the special public prosecutor, investigating officer.
25. Following points arise for my consideration and I answer
the same as under for the reasons stated hereinafter:
P O I N T S F I N D I N G
S
1. Whether the trial is barred in view of a. provisions of Sec.
161 of the Bombay Police Act and
b. u/s. 468 of the Code of Criminal Procedure?
No
2. Whether there is no cognizance taken and hence, the
entire trial stands vitiated?
NO
3. Whether the trial is vitiated because of misjoinder of the
different trials of different accused together?
No
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P O I N T S F I N D I N G
S
4. Whether there is misjoinder of charges? No
5. Whether any fraud has been played by the public
prosecutor and/or I.O. so as to vitiate the trial?
No
6. Whether this Court was empowered to conduct the trial
in view of the transfer of the case during the course of trial?
yes
7. Whether the order of sanction as passed u/s. 197 of the
Cr.P.C. is Legal and correct?
Yes
8. Whether the sanction granted under the provisions of
Bombay Stamps Act is legal and valid?
No
9. Whether the sanction under the provisions of P.C. Act is
legal and valid?
Yes
10. Whether the prosecution establishes that the
stamps are counterfeit?
Yes
11.Whether the prosecution establishes that the receipts
of GSO as issued by Telgi are counterfeit?
Yes
12. Whether prosecution establishes criminal conspiracy to
dealing in counterfeit stamps of accused nos 1 to 9
Yes
13. Whether prosecution establishes that Accused no 10 has
committed act of misconduct?
Yes
14. Whether prosecution establishes that accused no 10 did
said acts in conspiracy and in abetment of the offences of
No
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P O I N T S F I N D I N G
S
counterfeiting?
15. Whether the accused have committed any offence? As per final order
16. What order? As per final order
Point no 1(a):
26. It is not in dispute that the alleged incident of forgery have
taken place in the year 19941995 and that offences came to be
registered accordingly on the complaint of Mr. Mopalwar, the
Superintendent of Stamps. It is further not disputed that subsequently
the Hon'ble High Court passed an order to examine the involvement
and culpability of the police officers and other persons in a criminal PIL
before it viz. Criminal Writ Petition No. 865/2003. It is not in dispute
that the investigating officers are facing charges under Sections 218,
221 of the IPC along with Section 13(1)(d) punishable under Section
13(2) of the Prevention of Corruption Act. This objection is taken by
the police officer who is accused in the present case. The contention of
the accused is two fold;
(i) in view of the provisions of Section 468 of the Cr.P.C. and
(ii) Sec. 161 of the Bombay Police Act.
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I shall deal with Section 468 of Cr.P.C. . The accused are charged with
offence primarily u/s. 218 and 221 of IPC. The accused are also
charged u/s. 109, 120B of IPC for entering into a conspiracy in
facilitating the offence. Sec. 218 with is punishable with maximum
punishment of three years and Sec. 221 with maximum punishment of
three years. Section 468 of the Code of Cr. P.C. contemplates that the
period of limitation shall be three years if the offence is punishable
with imprisonment for the term exceeding one year but not exceeding
three years.
Subsection 3 of Section 468 contemplates that the period of limitation
in relation to offences which may be tried together shall be determined
with reference to the offence which is punishable with more severe
punishment or as the case may be the most severe punishment. The
present officers are also being tried for offence punishable u/s. 13(2)
of P.C. Act for which punishment is seven years and more. It is not
controverted that Sec. 217, 218 and 221 can be tried together with
Sec. 13(2) of P.C. Act. There is some grievance raised of joinder of
charges of counterfeiting as contemplated u/s. 256, 258, 259, 268,
262, 418, 420, 465, 466, 467, 468, 471 of IPC. Be that may be,
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considering the fact that Sec. 13(2) of P. C. Act has been incorporated
which provides punishment up to seven years, Sec. 3 of Section 468
would come into play and hence, there would be no bar as
contemplated u/s. 468 for the said trial.
Even otherwise, on perusal of Section 469, the period of limitation
shall commence (a) from the date of offence and (b) when the
commission of offence was not known to the person or to the police
officer from the date of such knowledge. Much stress was led on this
date of knowledge. In all three cases, commonly known as “Telgi
Stamp Scam cases”, the alleged omissions or commissions were
forwarded to the superior officers including ACP, PI, PI (Crime), Sr. P.I.
etc. It is also evident from the evidence on record that star question
was asked in the Legislative Assembly and in pursuance of such
question asked, the DCP called the said investigating officers and
viewed the case diary and other details based on which the omissions
and commissions are alleged. It is contended that the alleged date of
commission of offence u/s. 221 would be the date of passing of order
by the Sessions Court on 31.10.1995 and also order passed by Hon'ble
High Court dated 1.12.1995 in the bail applications before it . The
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LAQ was asked in the December 1995. Thus, it is contended that all
the facts pertaining to the alleged offence were within the knowledge
of the officers and hence, commission of the offence was known to the
higher officers viz. the police officers way back in the year 1995. Thus,
according to the learned counsel for the accused police officer Mr.
Bagaria , he contended that even then by taking the most lenient view,
the date of LAQ would be the date of commencement of knowledge.
There is basic fallacy in the argument of Mr. Bagaria. The law
contemplates not only knowledge of facts but knowledge about the
commission of the offence. One has to consider this with provisions of
Sec. 319 of Code of Cr.P.C In this case, the facts are known, but the
some of the accused were added subsequently. Thus, knowledge of
facts would not be important, but what is important is knowledge of
commission of the offence. The knowledge of commission of the
offence would be apparent when the investigation was carried out in
pursuance of the order dated 4th September 2003 by the Hon'ble
Bombay High Court in Criminal Writ Petition No. 865/2003. Thus, if
we consider this date, there would not be any bar u/s. 468 for
commencement of such trial.
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27. Thus, from the above circumstance, bar u/s. 468 would not
be applicable as the date of commencement will be 4.9.2003 and so
also Sec. 468 would not be applicable as the offence is tried along with
Sec. 13(2) of P.C. Act which contemplates punishment of seven years.
Point no 1(b)
28. Now we shall consider the bar u/s. 161 of B.P. Act. Sec.
161 of B.P. Act contemplates that no criminal prosecution will be
proceeded against a police officer if the act is done under colour or in
excess of any duty or authority as aforesaid if the prosecution is not
initiated within six months from the date of the act complained of, and
if sanction is obtained within two years from the date of offence. The
prosecution contended that similar view as contemplated u/s. 469
regarding knowledge should be considered in this case. Admittedly,
from the date of offence, which is in the year 1995 and initiation of
proceedings in the year 2003 is beyond the period of limitation of two
years as contemplated u/s. 161, but one has to also consider two
aspects in this regard viz. whether the acts or omissions can be said to
be under the colour of duty and secondly whether the date of offence is
the date when the alleged acts were committed or some different date
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can be reckoned for the purpose of Sec 161 of Bombay Police Act. The
accused has relied upon number of rulings in this regard which I shall
first consider before embarking upon the rulings of the prosecution.
The accused has relied upon the ruling of K.K. Patel Vs. State of
Gujarat reported in 2000 Cri. L.J. 4592 in which the allegation was
that the police officer was arrested by preparing false statement and
documents. The Hon'ble Supreme Court of India held that there is no
scope for contending that the offence alleged would not fall within the
purview of acts done under the colour or in excess of duty or authority.
It is in this circumstance that the Hon'ble Supreme Court of India held
that provisions of Sec. 161 would be applicable. He also relied upon
the case of Virupaxappa Veerappa Kadampur v. State of Mysore
reported in AIR 1963 Supreme Court 849. In the said case, accused
was caught with 15 packets of Ganja when the police officer prepared
false panchanama showing 9 packets of Ganja and also showing that
circumstances which never did happen. The Hon'ble Supreme Court of
India held that the offence as contemplated u/s. 161 of the Bombay
Police Act includes offence under the Penal Code also. The Hon'ble
Supreme Court of India also explained the expression under colour of
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duty or offence and came to the conclusion that under colour of duty
implies if the acts were done under colour of duty imposed upon him
by the Police Act. Thus, considering these circumstances, the Supreme
Court of India held that act of preparing of such false panchanama
came within the purview of under the colour of duty and hence, held
the prosecution to be not maintainable beyond the period of limitation.
In the case of Sumer Chand v. Union of India reported in 1993 CRI.
L. J. 3531, the act of prosecution and filing chargesheet by the I.O.
was considered to be under colour of duty and paramateria provisions
of Sec. 140 of the Delhi Police Act were considered in this regard. In
the case of H.N. Rishbud v. State of Delhi reported in AIR 1955 S.C.
196 wherein it has been held that proper procedure should be followed
and investigation should be done by proper authority and non
compliance thereof would vitiate the trial and so also relied upon the
ruling of Atmaram Ghosale and others vs. State reported in
1965(1) Cri. L. J. 18 wherein it has been held that the Prosecution
under other Acts and Penal Code are also included under the purview
of Section 161 of Bombay Police Act. In the case of Kamlabai
Malkarjunappa and others v. State of Maharashtra reported in
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1978 Mh. L. J. 252 wherein it has been held that the seizure of the
vehicle by a police officer when the driver was unable to satisfy that he
had valid licence and/or appropriate document was held to be under
colour of duty. He further relied upon the ruling of State of
Maharashtra vs. Chander Kant reported in AIR 1977 Supreme
Court 148 wherein the Hon'ble Supreme Court of India held that the
word 'act' extends to illegal omissions also. He further relied upon the
ruling of Sharifbai Mehmoob vs. Abdul Razak reported in AIR 1961
BOMBAY 42 wherein it has been held that the period of starting point
of limitation u/s. 161 of B. P. Act would be the date of offence. He
further relied upon the ruling of Narayan Hari Tarkhande v.
Yeshwant Raoji Naik reported in AIR 1928 Bombay 352, wherein it
has been held that under colour of duty or in official capacity included
the act of police officer, the assault of battery can be stated to be under
the act under the colour of duty. The Hon'ble High Court in reference
answered that alleged act of assault cannot be said to be under the
colour of duty. Further relied upon the ruling of Satish Palasdekar vs.
State of Maharashtra reported in 1999 Volume 1 Mh. L.J. 204
wherein it has been held that assault of use of force when in custody.
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Hence, facts and circumstances of the case to be barred under the
provisions of Sec. 161 of the B.P. Act.
29. As against this, the learned prosecutor Mr. Gharat has
relied upon ruling of Shubhnath vs. State of U.P. reported in 1997,
Volume 5, SCC 326 wherein the Hon'ble Supreme Court of India has
held that when the public servant commits offence of fabrication of
record, misappropriation of public funds, it cannot be said to be in
discharge of his official duties and under the purview of colour of duty.
He also relied upon ruling of Sumer Chand vs. Union of India
reported in 1994 Volume 1 SCC 64 wherein it has been held that acts
of confinement, assaulting etc. are not acts done under the colour of
duty or authority and the said acts had no reasonable connection or
nexus to the duty or authority imposed. He also relied upon the case
of H.N. Rishbud vs. State of Maharashtra as relied upon by the
accused. He further relied upon the case State of Maharashtra vs. M.
reported in AIR 1966 SCC 1783 wherein it has been held that
acceptance of bribe and preparation of false documents to assist the
accused would not fall under the colour of duty. The Hon'ble Supreme
Court of India has held that unless there is reasonable connection
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between the act complained of and duty, it cannot be said that the act
was done by the accusedofficer under the colour of his duties. The
State of Bihar vs. P.P. Sharma reported in AIR 1991 SC 1260
wherein, while considering the act in discharge of duty, it has been
held that the act complained of should be directly and inexplicably
connected with the official duty and there should be some reasonable
connection between the duty and act complained of. The Hon'ble
Supreme Court of India also held that it is no part of a public servant to
enter into a conspiracy to fabricate the record, falsify the count,
commit fraud or misappropriation or demand or acceptance illegal
gratification though the exercise of power gives them an occasion to
commit such offence.
30. Thus, considering the above rulings, there is some force in
the contention of the learned counsel for the accused that acts of the
investigating officersaccused in this case who are police officers are
being of police officers as contemplated u/s. 161 of the B. P. Act. It can
also be stated that the omissions and commissions as alleged to some
extent are related to the duties of the concerned police officer. The act
contemplated u/s. 161 also includes omission as has been held in the
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case of N. Kale Vs. B.T. reported in 2008 (Supplementary) Bombay
C.R. 161 which is followed the law laiddown by the Supreme Court of
India in the case of Rakesh Kumar Vs. State of Bihar reported in AIR
2006 SC 820. As has been pointed out in various rulings, acts also
includes omission.
The contentions as has been raised has been considered by the Full
Bench decision in the case of Narayan Hari reported in AIR 1928
Bombay 352 wherein the Hon'ble High Court way back in 1928
defines and interprets what is “under colour of duties” The definition in
the term under colour of duty and other acts can be made firstly
whether he was doing in course of his public duties and secondly
whether act was done while performing his duty for example if force is
used and injury is caused when resistance arises, it would fall during
performing his official duty, but if the same officer causes injury to a
person when not doing such duty or acts, it may not be fall within the
purview of official duty. Thus, the same act of assault will be protected
if performed during official duty, but will not be protected if not
performed while committing official duty. The other aspect is whether
the act or omission can be said to have been done in pursuance of
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official duties. The case of Virupaxappa Veerappa Kadampur
reported in AIR 1963 Supreme Court 849 has been considered and
distinguished by the Hon'ble S.C. of India in the case of State of Bihar
vs. P.P. Shrama reported in 1991.
Although in the case of Virupaxappa Veerappa Kadampur, preparation
of false document viz. panchanama was considered to be within the
purview of duties, one has to consider if the act complained of would
fall within such colour of duty as alleged. The allegations in the present
case pertain to omission viz.
(a) not carried out proper investigation
(b) not obeying the orders of the superiors,
(c) not arresting the accused or investigating the accused, assisting the
accused in his escape,
(d) not completing the investigation much so promptly and properly
(e) not forwarding the stamp seized to the FSL and/or other
authorities for examination etc.
For the sake of argument for consideration the issue of Sec. 161, the
facts are not disputed that the Telgi used to sell and has sold
counterfeit stamps and that complaint was lodged and investigation
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was handed over of these offences to the accusedI.O. It is the case of
accused that investigation was carried out as per their capability, ability
and intelligence which can be seen from the investigation and
omissions as pointed out was not made out. Hence, according to them,
considering this aspect, it was contended that the omissions amount to
acts under the colour of duty as they pertain to investigation.
31. At the outset, from the charges levelled and the charge
sheet, it is apparent that the charge levelled against the I.O. pertains to
acts and omissions alleged during the course of investigation. To that
extent, as stated above, the allegation relates to investigation. The
aspect that is to be seen is whether the act complained of is connected
with the official duty or dereliction of official duty, there must be
reasonable connection between the act complained of and in the
discharge of purported official duty. The act or omission must bear
such a relation to the duty that the accused could lay reasonable nexus
between the offending act or omission and the duty, but not a
pretended or claim that he did the act (which includes omission) in
the course of performance of his duty. The wordings of Sec. 161 of the
B.P. Act contemplates act done under the colour or in excess of such
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duty. The act done into or omissions are done under colour or in
excess of such duty. Thus, omissions should be in furtherance of such
duty.
32. From the alleged allegations made, the omissions pertain to
preparation of false documents, as stated earlier and more particularly
stated in the charge one cannot say that it was during the course of
official duty that alleged fabricated panchanama was prepared and the
same would certainly be prepared within the purview of colour of duty
as held in the case of P.P. Sharma. Similarly, one cannot say that the
alleged act of not arresting and aiding and assisting an accused to
escape the due process of law would fall within any official purview of
duty. Even otherwise, even during the course of investigation, lack of
proper examination of the seized articles also will not fall within any
course of official duties or colour of such duty. Colour of duty implies
that the said act can be said to be the duty of the said officer under the
act or has imposed by any law. Permitting the accused to escape,
preparation of false documents, nonpreparation of documents would
not in any circumstance be within the scope of an ambit of colour of
duty. The judgment of the Hon'ble Supreme Court of India in State of
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Bihar vs. P.P. Sharma and of the Full Bench of the Hon'ble High Court
of Bombay in the case of Narayan Hari vs. Yeshwant Naik would be
squarely applicable to the alleged facts and circumstances of the
present case. As held by the Hon'ble Supreme Court of India, it cannot
be a part of the duty of a public servant to enter into conspiracy,
fabricate record, falsify the count, commit fraud or misappropriation or
demand and acceptance of illegal gratification so also one can add that
it has no part of duty of a public servant to do criminal misconduct as
contemplated under the P. C. Act. The act of definition of criminal
misconduct itself highlights that these acts will not fall under the
purview of official duties or relating to duty of a public officer.
Considering these circumstances, the acts and omissions of the
concerned police officers who are accused in this case would not
amount to acts or omissions and acts done under the colour of official
duty. As the acts fall beyond the purview of under colour of official
duty, the bar is contemplated u/s.161 of the B.P. Act will not apply.
Hence, I answer the point accordingly.
Point no 2:
33. Another important issue that was raised was regarding
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cognizance. It is an admitted fact that initially the investigation in all
the three cases was carried out by the respective police stations, Crime
Branch, CB,CID. Thereafter after Telgri came to be arrested, it was
shifted to DCB. By the order of the Hon'ble Bombay High Court, a
special investigation team was formed and investigation was handed
over to such special investigation team viz. S.I.T. Subsequently, by the
order of the Hon'ble Supreme Court of India, the investigation was
transferred to CBI. In all these cases, the chargesheets against Telgi
and some of his employees and private persons was initially filed by
the DCB,CID. After the SIT was formed, the Hon'ble Bombay High
Court directed investigation of alleged culpability of the police officers.
In pursuance thereto, the SIT carried out investigation and found that
there was sufficient evidence against the police officers who had
investigated the offence earlier. The SIT filed chargesheet against
these police officers before the Learned Magistrate. The learned
Magistrate thereafter committed the trial to the Court of Sessions.
During this period, i.e. after filing of the chargesheet and before the
trial started, the investigation was handed over to the SIT. The other
chargesheets which are filed before the learned Magistrate, in the
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meanwhile were also committed and all these chargesheets were
clubbed together. It is pertinent to note that on 18.11.2005, the fact
that such cognizance was not taken, was noted and the court took
cognizance in both these cases. Thus, one can see that there is as such
no material irregularity or prejudice caused to the accused.
Cognizance in fact has been taken. It is not the case that no
cognizance has been taken as is seen from the record and in the order
sheet. Thus, the contention that no cognizance has been taken is not
well founded on considering the Roznama which is on record. It is
necessary to point out that in this matter the investigation was
transferred from one investigating agency to another in view of various
judicial pronouncements and directions. The matter was of a serious
nature and the investigation was lastly carried out nearly 8 to 9 years
have passed from the incident. One has to consider what does it mean
by cognizance and how far this irregularity is fatal. As pointed out
earlier, cognizance has not been defined under the Criminal Procedure
Code. It is understood to be the first date on which the Court applies
its mind. It is also well settled principle that cognizance is of the
offence and not of the accused. It is also well settled principle that
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what is committed and what is taken cognizance of the offence. It is
also not in dispute that this court is a Special Court established and
duly notified as Special Court for hearing cases under Prevention of
Corruption Act. As pointed out earlier, this is also a Special Court and
as it deals with offences under Prevention of Corruption Act, it is also
empowered to the cases under the P.C. Act which are of the same
transaction as that of the offences contemplated under P.C. Act. It is
also material to point out here that the I.O. of the SIT had not
contemplated action against the arrayed police officers under the
provisions of P.C. Act. It is also necessary to point out that on
15.4.2004, for the first time, the prosecutor made a reference to the
Court and seek time to sanction the prosecution. Even at that time,
there would have prayer made for adding the provisions of P.C. Act
against the police officer. As pointed out earlier, the committal
proceedings and the cognizance is of the fact which constitute an
offence when it is not specialized or separated with reference to an
accused person or a particular section or provision. If we considered
all these aspects, the Magistrate had taken cognizance of the fact which
constituted the offence allegedly committed by the said investigating
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officers and had committed the trial to the Court of Sessions. Thus,
addition of additional provisions by which the accused have committed
the offence is seen from the said fact can certainly be added into. As
already pointed out earlier, it is the prerogative of the Court to frame
charges under the provisions it feel fit in the circumstances of the case.
It is an judicial act and decision of framing a charge under the
particular section. Therefore, if the provisions of P.C. Act are not
applied or indicated to the investigating machinery, it does not imply
that the same is bound to not to consider these provisions. Even in such
circumstances, the Court is amply empowered to frame charges and
take appropriate steps accordingly. This Court being a Special Court
notified under the P.C. Act, could certainly accept the action of
initiation of proceedings under the P.C. Act. The entire exercise of trial
is to have an fair trial. It is a fair trial which is prosecuting agency and
represented the society and also the accused. The trial cannot be lost
sight in favour of the accused. This fair trial as such and not
particularly in favour of the accused. It does not imply that if
provisions of P.C. Act are added, there would be prejudiced to the
accused. The provisions of law of the above procedural protection
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given to the accused are to protect his right of fair trial. It is apparent
that just because such irregularities exist, the trial can be vitiated.
Mere existence of such irregularity will not always prejudiced the
accused. Something more is to be shown than such irregularity.
According to me, taking cognizance implies application of mind. In the
present case, at the time of framing of charge, the Special Court had
applied its mind. Thus, on 18.11.2005, by taking cognizance
specifically even such irregularity came to be set aside. Nothing has
been pointed out as to how this irregularity has caused serious
prejudice or any prejudice to the accused. The framing of charge,
recording of evidence, giving opportunity of crossexamination,
complies with various protection given to the accused have been
complied with during the course of trial. Thus, mere addition of a
section or including an accused for offence punishable under the P.C.
Act will not in any way prejudice the accused. Thus, considering these
circumstances, firstly the contention that no cognizance was taken is
erroneous and secondly if any such irregularity in taking of such
cognizance is a mere irregularity which stands cured by taking
cognizance on 18.11.2005. Considering this circumstance, this
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objection of not taking cognizance does not hold any water. Moreover,
the accused had participated in the trial willfully through out and has
been given full opportunity to contest the trial. Hence, in such
circumstances, no prejudice is caused. The objection taken is only for
the sake of objection and cannot be sustained. Moresoever, it does
not vitiate the trial under any circumstances.
Point no 3& 4:
34. It is the contention of the accused viz. the investigating
officers that no fair trial of the accusedinvestigating officers. The
ground of absence of fair trial has been raised only by the accused
investigating officers and any reference hereinafter relating to this
issue only pertains to the said accusedinvestigating officers.
35. The ground of violation of fair trial has been taken up on
the ground that the officers are charged with Section 109 of IPC
pertaining to abetment and that abetment is not attracted in the
present cases. It is further contended that the alleged abetment is of a
future offence. The I.Os. are arraigned as an accused along with the
main offenders who have committed the offence which vitiate trial.
There is misjoinder of trial, misjoinder of charges. The defence of the
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accused is vitiated. Joinder of charges of abetment u/s. 109 for future
offences and Sections 218 and 221 of IPC along with offence under the
P.C. Act cannot prove misjoinder of charges and the entire trial is
vitiated. It is also further contended that the fair trial has not been
given to the accused by clubbing the three cases viz. 111/04, 112/04
and 10/2011and so also by not clubbing the MRA case with these cases
and hence there is denial of fair trial. It is further contended that the
fraud has been committed by the public prosecutor and the I.O. The
public prosecutor has acted as persecutor and hence, the trial is
vitiated and thus there is no fair trial.
36. Thus, considering the above contention as raised, one can
say that the grounds taken of are misjoinder of the accused, misjoinder
of charges, clubbing of the cases and fraud by the public prosecutor.
37. I shall first deal with the clubbing of the cases. The order
of clubbing of the cases was passed on the application of the
prosecution and the order was passed in M.A. No. 403/2005 dated
1.12.2005 pertaining to 111 & 11206. The said order was challenged
before the Hon'ble High Court of Bombay in Criminal Writ Petition No.
448/2005 and the same was rejected. Considering the same, the issue
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of clubbing cannot be raised once again under these circumstances.
Even otherwise, from the record, it is seen that the evidence in all the
three cases has been led separately. Even the charges are framed
separately, I have heard the arguments separately and the judgments
are given separately. On perusal of the entire record, although
technically, all the three trials were clubbed, they were not
amalgamated, but they were heard together. Even otherwise as
clubbing of these cases has not been shown to be prejudicial to any
interest to the accusedinvestigating officer, he has been granted full
and fair opportunity to defend himself without any hindrance or
objection. Considering this aspect, it cannot be said that clubbing of
these cases would be prejudicial or adverse or affecting fair trial of the
accused. There is another order of merger/clubbing of the cases which
is basically the grievance of the accused. It is necessary to point out
that in these cases, initially the investigation was with the accused
investigating officers. Subsequently it remained with the police station
with different police officers then DCB CID,thereafter it was taken up
by the S.I.T. after arrest of the accused no.1 Telgi and in pursuance of
the directions of the Hon'ble High Court of Bombay in the writ petition
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bearing No. 865/2003. Thereafter the investigation came to be
transferred to the C.B.I. in pursuance of the directions of the Hon'ble
Supreme Court of India. During the course of investigation by the
S.I.T., chargesheet came to be filed against other accused.
Subsequently under further investigation, chargesheet came to be filed
against the investigating officers. Subsequent thereto, the CBI filed
chargesheet against all the accused. It is after the filing of the charge
sheet by the CBI, the statement was made of completion of
investigation by the CBI. It is in these circumstances that the earlier
chargesheet filed by S.I.T. was merged or amalgamated in the charge
sheet filed by the CBI as per the final report as contemplated u/s. 173
of Cr.P.C. This ground and ground of misjoinder of trial is one and the
same.
38. As against this, it is the case of the prosecution that the
accusedinvestigating officer is charged of facilitating the future offence
and hence, he can be tried along with other accused in the same trial.
It is further contended by the prosecution that the Code of Cr. P. C.
provides for joinder of offence and charges together in a single trial.
39. The learned counsel for the accused heavily relied upon the
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ruling of (i) Sohan Singh Vs. The Crown reported in 1923 Lahore
394, (ii) Emperor Vs. Jethalal Harlochand reported in Volume 7,
BLR, 527, (iii) Gul Mohomed Sirkar Vs. Cheharc Mandal reported
in Volume 3 Cr. L. J. Reports 141, (v) Johan Subrana Vs. Emperor
reported in Volume 3, Cr. L. J. Reporter 111, (vi) Shapurji Sorabji
Vs. Emperor reported in AIR 1936 Bombay 154, (vii) Chakrakodi
Sharma Vs. Emperor 1922, Madras, 435, (viii) Ramchandra
Sawkar Vs. Emperor reported in AIR 1939, 129. Further relied upon
the ruling of (ix) Laxman Bapu Sonar Vs. State of Gujarat reported
in 2004, Cr. L.J. 2229. AIR 32, Lahore, 486. Further relied upon the
cases of (x) Balbir Vs. State of Hariyana reported in 2000 SC 11,
(xi) Birichh Bhuian Vs. State of Bihar reported in AIR 1963, SC
1120, (xii) K.L. Srivastava Vs. State of West Bengal reported in
1974, Cr. L. J. 518, (xiii) State of Gujarat Vs. Suryakant reported in
1999 Cr. L. J. 821, (xiv) Shailendra Kumar Jain Vs. State of U.P.
1991, Cr. L.J., 2969.
If we perused the entire gamut of judgments, the rulings which
highlighted all the issues can be found in the case of Ramchandra
Sawkar reported in AIR 1939, Bombay, 129 and in AIR 1963, Birichh
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Bhuian vs. State of Gujarat, SC 1120. If we perused the other case
laws, they are more on the facts on particular case. In the case of
Ramchandra Sawkar, the Hon'ble High Court of Bombay considered the
meaning of transaction. The Hon'ble High Court distinguished viz.
continuity of action and common purpose. The expression 'same
transaction' has been judicially interpreted and it signifies related to
one another in joint purpose, or as cause and effect or as principal or
subsidiary acts as to denote one continuous and completed action.
While considering the charge of abetment or conspiracy, the scope of
enquiry so as to embrace all actions done in general conspiracy to do
similar act extending over not only the period involved in the charge of
abetment, but over a much larger period anterior and subsequent. The
Hon'ble High Court of Bombay also has held that necessity of following
the procedure relating to joinder of charges laiddown by law is
obviously dictated by reasons of practical expediency and justice,
namely to simplify the inquiry from the point of view of the accused.
The Hon'ble Supreme Court of India in the case of Birichh Bhuian vs.
State of Gujarat has held that “a charge is not an accusation made or
information given in abstract but an accusation made against a person
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in respect of an act committed or omitted in violation of a penal law
forbidding or commanding it”. The Hon'ble Supreme Court of India
also considered the effect of amendment to the then Cr.P.C. by
amending Act of 1955. The amendment is merely paramateria to the
provisions in the present Cr.P.C. wherein failure to or error in
misjoinder will not solely vitiate the trial as contemplated in Section
215 of the Act. Considering these provisions, what the accused has to
show is that he was prejudiced and that it is an incurable irregularity
or illegality.
40. At the outset, it is to be seen that the I.Os. are alleged to
have committed offence punishable u/s. 109 of IPC. Whether the
offence u/s. 109 applies to future act or not will be considered while
appreciating the evidence on record and the facts of the case. Suffice it
to say that, at this moment, we are not considering the validity of the
charge or basis of the charge, but is considering joinder of charge
and/or trial with the other accused and other offences. Although much
was harped upon on vitiating the trial or injustice or facing the trial
with the other accused in the offence which was being investigated by
the accusedinvestigating officers. Nothing has been pointed out as to
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how such trial has been unfair or such alleged irregularity or
misjoinder of trial has adversely affected in defence. In fact, if we
consider it in real terms, that the accused have in a sense benefited in
their defences instead of it being affected adversely. The alleged
omission and commission of the investigating officers are being used as
defence or lacunae in the prosecution case by the other accused.
41. Needless to say that as per the provisions of the Cr.P.C. u/s.
219 of CrC, offences of the same kind, when they are punishable with
the same amount of punishment can be tried in one trial if the series of
acts are connected together to form the same transaction, more
offences than one are committed by the same accused, he can be
charged in one trial for such offence so also u/s. 223 CrPC , the
persons accused of the same offence in the course of the same
transaction can be tried together. Clause (b) of Sec. 223 contemplates
that “persons accused of an offence and persons accused of abetment
of, or attempt to commit, such offence can be tried together”.
Thus, in the present case, one can see that the investigating officers
investigated the said offence allegedly in a lax manner. It is alleged
that as per Section 109, by committing said act, the accused have
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facilitated the commission of an similar further offences by Telgi as
stated in the charge.
For abetment, the definition relied upon is of explanation of the Act to
Section 107 of facilitation of commission of act. Whether this
explanation would be applicable is being considered subsequently, but
at this stage, one can say that the entire transaction of allegedly
committing lax investigation and permitting accused no.1 to escape as
alleged by the prosecution may fall within the four corners of
facilitation of such offence. Thus, as the charge levied against the
accused is of abetment, reading provisions of Section 223 subsection 2
of Cr.P.C., there could not have been any misjoinder of trial of present
accused with other accused or misjoinder of charges of present accused
with other accused or offences.
42. As regards objection pertaining to the offence u/s. 218 –
221, it is clear that the entire offence of preparing and omitting to do
act as alleged leading to alleged lax investigation can certainly be said
to be act for being part of same transaction. The act and omission of
lax investigation and omission as stated in the charge till escape of
Telgi can certainly formed part of the same transaction.
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This coupled with the provisions of the P.C. Act viz. Section 4 sub
section 3 which empowers the Special Judge to try any offences along
with such offences which can be tried together. Section 13(1)(d)
contemplates that the public servant has committed misconduct when
if by abusing his position, obtained for himself or any other person any
valuable things or pecuniary advantage. Thus, it is the case of
prosecution that by permitting to Telgi to escape, there is alleged
facilitation of him committing similar offences thereafter and thus,
facilitation of pecuniary advantage to Telgi. Considering these
circumstances and the provisions as contained in Section 4 subsection
3 of the P.C. Act and various provisions pertaining to charges and trial
as contemplated u/s. 218 to 223, no illegality exist if trying the
accused jointly for the said offence along with the other accused.
Even otherwise, it has not been shown that by such joint trial or
charges, the defence of the accused has been affected adversely or that
the accused was restrained in any manner in raising any defence which
he felt so. The joint trial has in fact facilitated the purpose of trial and
expedite the trial and also avoided inconvenience to the witnesses, and
the partied to the trial , considering the number of witnesses and
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documents involved in these cases. It is necessary to consider that the
procedural laws are made to further justice and not cause hindrance in
trial. The case of Lalu Prasad Yadav Vs. CBI reported in AIR 2003
SC 3838, the Hon'ble Supreme Court of India permitted the Special
Judge to record evidence in one case and mark documents in one case
and use the same in other cases also. Thus convenience and judicial
expediency which can be achieved without sacrificing the rights of
parties is of paramount importance . Considering these various
circumstances, apparently there is no illegality in the misjoinder of
charge and/or misjoinder of trial of the accusedinvestigating officers
with other accused. Hence, this objection of the accusedI.Os. cannot
be considered. Moreover, no prejudice is shown to have been caused
to the accusedinvestigating officers
Point no 5:
43. A very disturbing feature has emerged during the course of
this trial. It is necessary to mention that the prosecutor and so also the
advocates for the accused are in fact are working to assist the court.
They only act as a liaison between the party viz. the state or the
accused and the court. They also assist the court in the understanding
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of the case from different facets and with various provisions of law and
in highlighting as to how different provisions of law can be made
applicable in the facts and circumstances of the case. To some extent,
it could be true that the prosecution mainly tries to highlight the case
of the prosecution and the advocate of accused tries to highlight the
defence of the accused. These two activities help the court with
coming to a proper conclusion based on the facts, understanding and
application of facts, interpretation of law, applicability of law to any
cases in its correct sense. It is alleged that the prosecutor Mr. Gharat
was personally involved in the said matter and number of rulings in
this regard were relied upon. It is also one of the ground that the
accused's right of fair trial has been violated in that regard. At the
outset, one of the contention raised was that the provisions of P.C. Act
were not made applicable and it was only at the instance of the present
prosecutor that the sanction came to be applied for and granted. This
controversy has been led to rest by the order of the Hon'ble High Court
in Cr. W.P. No. 2476/2006 dated 25.7.2007. It is not in dispute that the
involvement of a police officer, if any, was considered as per the
directions of the Hon'ble High Court and special investigation team
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came to be appointed accordingly. It is also not in dispute that
Supreme Court of India also considered the circumstances and the
seriousness of the charges and appointed CBI as the investigating
agency. In paragraph 8 of the order dated 25.7.2007, the Hon'ble High
Court of Bombay has held that it was the duty of the prosecutor to
invoke such provisions of law as are disclosed from the chargesheet
and if such invoking of act, P.C. Act is taken by the prosecution, no
exception can be taken. It is necessary to point out that what is being
filed is the chargesheet. A chargesheet contains bunch of facts which
according to the I.Os. pertain to the incident or incidents or series of
act in question. It is in his opinion that from the said series of acts or
act that the particular offence is made out. It has to be noted that this
is the opinion of the concerned I.Os./state who file the chargesheet,
may be with the assistance of any police prosecutor, legal advisor etc.
This opinion of the said investigating officer cannot be said to be a
judicial finding or a judicial decision in this regard. When such bunch
of facts made before the court , always mandatory the court peruses
the said chargesheet and on the basis of facts contained in the charge
sheet, the charges are framed. It is not on the basis of such opinion or
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result arrived at by the I.Os. In case of warrant cases, Section 240
contemplates framing of charge. It contemplates that the charge shall
be framed upon considering the police report and documents sent with
it. Even what offence has been prima facie alleged to be committed
from documents is left to the Magistrate. The Magistrate has to form
an opinion that accused has committed an offence on the basis of
chargesheet. What offence is to be decided by the Magistrate? Even
in the case of provisions of P.C. Act, it is not necessary that just because
the chargesheet is filed under the provisions of P.C. Act, that charge
under P.C. Act would follow. It is also not essential that just because
the charge is framed by the court as contemplated u/s. 240 in warrant
cases or 228 in Sessions triable cases that the same remain or attains
finality. Under provision of Sec. 216, the court is empowered to alter
charge. This can be either charging with a higher offence or charging
with a lower offence. The power to alter charge is at any time before
judgment is pronounced. Thus, framing of charge is the sole
prerogative of the court. It is in this decision making that the
prosecutor and the advocate of the accused assist the court to show as
to how and which offences are prima facie made out from the
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documents in chargesheet. A prosecutor is not a mere postman. If
there are any serious lacunae seen or some drawbacks seen, nothing
prevents the prosecutor even from admitting or considering the said
drawbacks or flaws in investigation. This may also result in the I.Os.
trying to collect further evidence and carry out further investigation as
contemplated u/s. 173 (8) of Cr.P.C. Thus, there could be no fault of
the prosecutor to assist the court in coming to a conclusion as to
whether the provisions of P.C. Act are made available. Further if such
provisions, according to the prosecution are made out, there is nothing
wrong to seek sanction in this regard. It is necessary to point out that
the provision for sanction of prosecution is in fact a protection given to
the accused and not additional circumstance against the accused.
Thus, in fact, one can say that the accused was granted an oppurtunity
by asking for sanction outside the purview of the court, within his
administrative hierarchy pertaining to sanction and his charges. It is
not the case of the accused that the prosecutor/CBI forced the
sanctioning authority to grant sanction. Thus, the act of the prosecutor
asking for sanction cannot be said to be prejudicial to the accused or
violative of principles of fair trial.
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The accused have made following contention in the written arguments:
“If these omissions on the part of Shri Gharat are intentional, lack of
knowledge, lack of efficiency, lack of competency or under any excuse
then similar benefit should given to all the three accused and/or in the
alternate if the impressions are required to be drawn against the
accused, as suggested by Shri Gharat, then similar inference is required
to be drawn against Shri Gharat that in order to save Rane deliberately
having full knowledge in which intentionally he has not examined
these witnesses and withheld this document from this Hon’ble Court to
safe Rane from the clutches of punishment which could have been
awarded by this Hon’ble Court”.
The prosecutor in reply makes the following accusations:
“it is presumed that the accused police officer and the defence
advocate Mr. Ishwariprasad Bagaria have made the said submissions
with full responsibility. Therefore both of them have made themselves
liable for the offence under section 199 IPC for intentionally making
false submissions in the written arguments receivable by the trial court
for judging the guilt of the accused. ….......
MR. ISHWARIPRASAD BAGARIA, THE DEFENCE ADVOCATE FOR
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ACCUSED POLICE OFFICERS HAS BEEN BLINDED BY REVENGEFUL
ATTUTUDE BY INCLUDING THE PRESENT CONTENTS IN
PARAGRAPHS NO. 7 AND 8 WHICH ARE PATENTLY FALSE AND
DISHONEST MAKING HIMSELF CRIMINALLY LIABLE UNDER
SECTION 199 IPC FOR MAKING FALSE SUBMISSIONS AND
MISLEADING THE COURT. IN HIS BERSERK ATTITUDE HE HAS
FORGOTTEN HIS DUTY AS A RESPONSBLE ADVOCATE AND BEFORE
ADVANCING THE PRESENT CONTENTIONS ON FALSE PREMISES
DISHONESTLY UNDER ENTHUSIASM FOR CHEAP PUBLICITY HAD
APPROACHED MEDIA WITH FALSE INFORMATION THAT HE HAS
JOINED THE SPECIAL PUBLIC PROSECUTOR MR. PRADIP GHARAT
AS THE ACCUSED IN THIS CASE. ON SUCH QUIRRIES FROM THE
MEDIA TO THE SPECIAL PUBLIC PROSECUTOR, AN APPLICATION
HAS BEEN SUBMITTED ON RECORD OF THIS COURT WHICH HAS
NOT BEEN PRESSED TO HONOUR THE WORD OF THIS COURT BUT,
HAS NOT BEEN WITHDRAWN AND FORMING PART OF THE
RECORD. THE CONTENTIONS IN THE SAME BE TAKEN AS REPEATED
HEREIN. THIS COURT ALSO BE PLEASED TO TAKE INTO
CONSIDERATION THE PREVIOUS STRICTURES PASSED AGAINST
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ADVOCATE ISHWARPRASAD BAGARIA BY YOUR HONOUR’S HON’BLE
PREDECESSOR HHJ SHRI U. D. SALVI ( PRESENTLY THE HON’BLE
JUDGE MUMBAI HIGH COURT) AND OTHER APPLICATIONS
SUBMITTED BY MR. BAGARIA ON RECORD. MR. BAGARIA STANDS
EXPOSED THROUGH THE ALLEGATIONS WHICH HE HAD
PREFERRED AGAINST HHJ SHRI U. D. SALVI WHICH EXPOSES HIS
HABIT TO DO AWAY WITH PROSECUTORS AND JUDGES WHO COME
IN HIS WAY BY SUBMITTING MISCHIEVOUS APPLICATIONS. ACTION
BE RECOMMENDED TO BE TAKEN AGAINST THE PUBLIC
PROSECUTOR SHRI PRADIP GHARAT FOR THE DISHONESTY IN NOT
EXAMINING SANCTIONING AUTHORITY IF THIS COURT FINDS THE
SAID SUBMISSIONS TRUE BUT IF THE COURT FINDS THE SAME
FALSE AS STATED IN THE INTRODUCTORY LINES OF THIS
PARAGRAPH, INITIATION OF PROCEEDINGS FOR THE OFFENCE
UNDER SECTION 199 IPC IS PRAYED FOR AGAINST ADVOCATE
ISHWARIPRASAD BAGARIA SINCE HIS TYPE OF PRACTICE IS
REQUIRED TO BE CURBED AND AGAINST ACCUSED POLICE
OFFICER.”
One can certainly say that the act of mudslinging against the
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prosecutor or against the advocate for the accused shall lead the trial
nowhere and would neither further the case of the prosecution and/or
case of the accused. Although the effort was made by the accused in
trying to make the prosecutor as one of the accused, it seems that wild
sense has prevailed in not making such an application, but it short of
the noble duty by which such allegations continued to exist in the
submissions so also the act of the prosecutor to counter attack equally
and prayed for contemptuous action against the advocate for the
accused is also not appreciated by this court. If these two pillars of the
administration of justice fight amongst one another without
appreciating the entire picture of supporting the administration of
justice exist, it would not be far of when the entire administration
system will collapse. There is a fine line of distinction between arguing
and stressing one contention vehemently and in trying to overreach
the said and make allegations against the other side. Considering the
same, both the reliefs of making action against the prosecutor as well
as advocate for the accused cannot be considered and rejected
accordingly. Needless to say that any such act of the prosecutor or
advocate of accused has not caused prejudice to either side mainly the
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prosecution of the accused and has not affected in any sense the free
and fair trial.
The learned counsel for the accused relied upon unreported judgment
in the case of State of Maharashtra vs. Babu Salve viz. in
Confirmation Case No. 3/2008 dated 13.4.2010. In the said case,
the Hon'ble HIgh Court has held that the prosecution must ensure that
a guilty person does not escape from the clutches of penal law and not
that every trial must result in conviction. The prosecution plays a vital
role in assisting the trial Court so as to ensure that the trial is
conducted fairly and transparently and an innocent person is not held
guilty. This was so because the accused no.2 was cited as a prosecution
witness after her statement u/s. 313 was recorded. From the facts and
circumstances of the case, such anomaly or joint trial, clubbing of
cases, requesting for sanction order from the I.O. cannot be held to be
false on the part of the prosecution so also this interpretation of
Section 109 in facilitating the offences is inclusive recording of
evidence in a particular manner, selection of appropriate witnesses
cannot be said to be act of the learned prosecutor unfair so as to vitiate
fair trial. Hence, I answer the point accordingly.
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Point no 6:
44. From the record, it is seen that earlier the matter was
pending before my learned predecessor the then Hon'ble Judge Mr.
U.D. Salvi. Thereafter on 4.7.2007, it is seen to be transferred to
another Judge Mr. Indrale. I am naming the Judges because the
controversy arises pertaining to the transfer. On perusal of Roznama in
dated 4.7.2007, the Ld Judge Shri Indrale direts it to be sent back to
the Pj as he not Notified judge under the PC Act, is seen that the matter
is again taken up by the then Judge Mr. U.D. Salvi thereafter. It is
contended that such transfer is illegal fight and has resulted in vitiating
of trial as the present Court could not hear or is not empowered to
hear the matter as the case is not made over to the Court by the
Sessions Judge. In this regard, the Roznama of S.C. No. 10/11 is also
of importance. In case No. 111 and 112/04, no Roznama dated
4.7.2007 is seen whereas it is seen in the S.C. No. 10/11. From the
perusal of the said Roznama, it is seen that then Judge Mr. Indrale was
not a notified Judge under the provisions of P.C. Act. The same was
pointed out to the learned Judge. It is seen that subsequently the
matter came to be again heard by Judge Mr. U.D. Salvi. The parties
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thereafter participated in the proceedings. The circumstances that
transpired between 4th and 5th, but the fact that the parties thereafter
participated in the trial and merely the entire evidence was recorded
before subesquently , indicates that the parties knew that Judge Mr.
Indrale did not have power and in such circumstances, any transfer
order was not acted upon and the matter continued to be with the then
Judge Mr. U.D. Salvi, my predecessor Judge.
45. The rulings are cited by the learned counsel for the accused
viz. State of Punjab vs. Baldev Singh reported in 1999 SC 2378
cannot be made applicable in the present circumstances as it does not
pertain to the NDPS case. Moreover, as pointed out earlier, it is also
not the basis of the case so also the case of Moly Vs. State of Kerala
reported in 2004 SCC (Cri) 1384 wherein the trial before Special
Court has been discussed. The provisions of SC and ST as is
considered in the case of Moly Vs. State of Kerala is entirely different
as the Special Court under the P.C. Act exercised the original
jurisdiction. As against this, the case reported of State of Karnataka
Vs. Muniyalla AIR 1985, SC 470 would be squarely applicable. In
paragraph 3, it has been held that “even if the Sixth Additional City
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Civil & Sessions Judge tried a sessions case which was not formally
made over to him. The trial would be invalid, because in any event the
Sixth Addl. City Civil & Sessions Judge would have inherent
jurisdiction to try the Sessions Case”.
46. Even the objection of this Court having been no jurisdiction
as the case is not made over by the Sessions Judge, Gr. Mumbai is also
not well founded and the same is rejected.
Point no 7 :
47. The prosecution in order to establish this sanction has
examined P.W. 12 Deputy Secretary of the Home Department,
Government of Maharashtra. He has deposed that he perused the
documents and granted sanction. On perusal of the crossexamination,
nothing was brought about to show non application of mind. During
the course of arguments. He was tried to point out that sanction
granted u/s. 197 and that of P.C. Act are different authorities viz. P.W.
12 and P.W.10. Considering these circumstances, it is necessary to see
provisions of Section 197 and the provisions of P.C. Act. As per the
provisions of the P.C. Act, the sanction is to be granted by a person
competent to remove said person from his office whereas in case of
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Section 197, it is sanction to be given by the State Government. Thus,
sanction granted u/s. 197 is proper sanction as granted. Nothing has
been brought about by the accused in their crossexamination to show
that the sanction is without any application of mind and/or considering
the actual facts on record. Thus, considering these circumstances and
in absence of any material adverse and on perusal of Sanction order , it
is apparent that the said sanctioning authority considered all the facts
sand circumstances and has come to the conclusion, granted sanction
on application of mind. Considering the same, the sanction cannot be
found faulty with . The absence of some material before the
sanctioning authority or the sanctioning authority unable to recollect
the material at any time for grant of sanction will not vitiate the
sanction . The material before the sanctioning authority makes out
sufficient material for grant of sanction, same can be granted. Grant of
sanction is initiation of proceedings and not finding of guilt of such
public officer. Considering the same, the sanction as granted by the
State Government vide Ex. 133 cannot be faulty with and hence, the
sanction as granted u/s. 197 is legal and valid.
Point no 8:
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48. The prosecution intended to invoke the provisions of
offence punishable u/s. 63(a) and (b) for prosecuting the accused. P.W.
11Bhausaheb J. Patil has granted sanction against accused from Exh
87 . On perusal of evidence of P.W11, it is seen that the said officer
Bhausaheb Patil was working as a Superintendent of Stamps in the
year 2004. He has stated that CBI informed of sanction order against
accused . Apparently, excepting stating about the same, said authority
has not applied its mind as to why sanction should be granted or
refused. Even the sanction order is devoid of particular details
pertaining to the said sanction. On what 'basis' or what was the
documents perused by the sanctioning authority is conspicuously
absence in his evidence. It seems that the CBI officer approached and
he has granted sanction as contemplated u/s. 64 of the Bombay
Stamps Act. From the provisions of Section 63(a) and (b), (a) applies
to any person appointed, to sell stamps who disobeys any rule made
under section 69; and (b) applies to any person not so appointed, who
carries on business of dealing in stamps other than adhesive stamps of
20 paise or of lesser value. On perusal of the alleged roles of accused
workers and accused suppliers , they are not appointed to sell stamps
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and so also do not fall into the category in dealing in stamps other than
special adhesive stamps of 20 paise or lesser value. In his cross
examination, he has admitted that he has not seen any documents
relating to the case in hand. Considering these facts and
circumstances, the sanction as contemplated under the Bombay Stamps
Act against accused fails and same held is held to be invalid.
Point no 9:
49. The prosecution has examined P.W. 10. The sanction
against accused No.9Jadhav is at Exhibit 129. On perusal of Ex. 129,
one can see that there is proper application of mind, the witness in his
examination in chief and crossexamination has also stated in sufficient
words about his application of mind. Considering these circumstances,
nothing has been brought about in the crossexamination to establish
nonapplication of mind. It was contended that there is no
documentary evidence to establish and show how the process of
sanction was initiated and this has prejudicially affected the accused.
At the outset, grant of sanction is a provision which has been made in
order to protect a public servant from malicious prosecution. The
grant of sanction and/or refusal thereof has to be considered in that
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sense. It is not necessary as has been held by catina of Judgments that
there should be not be judicial evaluation of the findings of the
sanctioning authority. If that was so, no further judicial process for
convicting or acquitting the accused would be required as the same
would be decided by such authority. Thus, what is to be seen is if
concerned authorities held that there were reasonable grounds for
grant of sanction. The issue of sanction and the prosecutor moving for
sanction does not remain an issue in view of the orders of the Hon'ble
Bombay High Court as pointed out earlier. It is to be considered that
when a particular fact come before the court, it is for the court to
decide under what provisions the accused is to be tried. It is the duty
of the prosecutor to assist the court and so also it is the duty of the
advocate for the accused to assist the court. Thus, if it is found that
some offences are not mentioned in the chargesheet although
circumstances exist to show the commission of such offences, the same
can be included in trial. There is no barring provision made under the
P.C. Act or in law which lays down a different criteria under the P.C. Act
and if the provisions of P.C. Act are applicable. If it has not been
applied whatsoever reason, no fault can be found with the prosecutor
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to point out this fact to the I.O. The fact of obtaining sanction can also
be at the instance of the prosecutor who has a duty to point out to
lacunae which can be corrected. Thus, considering these
circumstances, the issue of forwarding of proposal for sanction looses
importance. What is important and material for the case is the fact of
the authority being competent and the fact of application of mind.
Considering these aspects, the fact that the authority has applied his
mind is apparent from the oral evidence and also from the sanction
order granted. It is also submitted that the sanctioning authority did
not consider that no statement about alleged acts of the accusedpolice
officers were recorded by the I.O. before implicating him in the case.
Apparently, from the facts and circumstances of the present case, the
only circumstance that exists are the case diaries of the concerned
officer. It is basically a case of assisting an accused by shielding him by
improper investigation and not taking proper steps for his arrest.
These are to be considered on the basis of investigating papers done
by the I.O. and the case diary which mirrored the investigation carried
out. Considering these circumstances and overall facts of this case, it is
not disputed that these two sets of documents were before the
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sanctioning authority. Once these two sets of documents comes before
the sanctioning authority and each relates upon the documents for
application of mind, no fault can be found in grant of sanction. Based
on these documents, it is substantive and material documents that is to
be seen as pointed above, the provisions of sanction is based upon
principle of protection of some government employees from some
unnecessary harassment in prosecution. Thus, the level of satisfaction
to sanctioning authority is entirely different when that is required by
the I.O. or by Court of Law. Considering all these circumstances, the
competency of said P.W. 5 for removal of accused no.jadhav is not
disputed, there appears to be application of mind. Thus, considering
all these circumstances, there cannot be any fault in sanction order
granted by sanctioning authority against accused Jadhav by P.W. 5.
Point no 10:
50. The prosecution relies upon the documents viz. agreements
which has been seized from Ashok Leyland . The agreements are at
Article C1 to Article C49 (exh 31 colly) . The prosecution has filed
reports from the office of the General Stamps Office, the FSL etc. to
establish their claim. During the course of arguments, it is seen that
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apparently this allegation against the accused is not seriously disputed.
The fact that the stamps are counterfeit has not been disputed by the
accused during the course of arguments, but considering the plea of
not guilty raised by the some accused and also various other
contentions taken, it would be proper to consider the evidence
pertaining to counterfeiting of stamps. From the evidence of the I.O., it
is apparent that there were three ways which were adopted viz. (i) use
of completely counterfeit said adhesive stamps, (ii) use of gum washed
special adhesive stamps and lastly use of stolen stamps from office
during transit from the Security Printing Press, Nasik.
51. Apparently, from the chargesheet as well as investigation
carried out, there has not been clear demarcation as to which
document has been counterfeited in which of the above three manners.
Thus, one has to consider the other evidence on record. The reasons
for not coming to such conclusion by the I.O. has not been considered.
Apparently, it may be so because of quantum of stamps involved in the
case. In admitted report Exh.70, the expert has given the specific
opinion as follows:
“Microscopic examination and videospectual comparator comparison
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of the special Adhesive stamps marked Q.2 to Q.4, Q.10, Q.13 to Q.17,
Q.68, Q.86, Q.115, Q.116, Q.127, Q.128, Q.284 and Q.292 revealed
that questions special adhesive stamps were pasted subsequently after
removing the same from other documents due to following reasons.
Part of embossed/indented special adhesive stamp impression are
present on the above said questioned stamp. The indented impression
are shown vide red arrows on the photographs enclosed. The marks of
extra gum below the abovesaid questioned stamps were observed
I have examined the said documents personally. On perusal of these
documents, there is apparent clear distinction between stamps worth
Rs.1000/ and Rs.500/ and other stamps . These stamps are aslo
affixed differently . In this regard, the evidence of the officers of the
GSO is also important. The first witness is the complainant at P.W. 3.
He was Superintendent of Stamps who credited of unearthing stamps
and filing the complaint with the police. On perusal of his evidence, he
has stated that he has inspected the agreements at the Office of Ashok
Leyland. His evidence in this regard is unchallenged by either of the
accused. The accused no.1 has crossexamined this witness in length
and expected trying to find out his complicity in the offence. Nothing
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has been brought about to show that the agreements as stated by the
Superintendent of the Stamps with the rubber stamp of the GSO and
signature as proper officer were as it should be. Thus, considering Exh
32 opinion of ISP Nashik, Exh 40 opinion of State examiner of
documents, these circumstances, one has to consider the case in two
perspective. Apparently, some of the special adhesive stamps were
original, some were forged. Whether the original stamps can be said to
be counterfiet can be said to be tested within the definition of
counterfeit. Section 28 of the IPC defines counterfeit and it reads as
under:
“A person is said to 'counterfeit' who causes one thing to resemble
another thing, intending by means of that resemblance to practise
deception, or knowing it to be likely that deception will thereby be
practised.”
Another important aspect is to be seen the word 'document' as defined
in Section 2ten of IPC denotes by means of letters, figures or mark or
by more than one of those means, intended to be used, or which may
be used as evidence of that matter. Section 255 of the IPC deals with
counterfeiting of government stamps. No dispute has been raised that
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the special adhesive stamps are stamps issued by the government for
the purpose of revenue. Explanation to Section 255 also contemplates
that it is not necessary that a false or forged stamps be used for
counterfeiting. U/s. 255, it is clear that a person commits this offence
who counterfeits by causing a genuine stamp of one denomination to
appear like a genuine stamp of a different denomination. Thus, it is a
inclusive definition which contemplates of a use of a genuine stamps to
also to be considered as Counterfeit. Used stamp is of no value after it
is so cancelled. Thus, trying to remove the mark on it and affixing new
marks on it will be one of the modes of counterfeiting and of
government stamps. Even if we presumed that the stamps were
genuine and were not used as would be the case if the stamp of the
third nature i.e. by theft from transportation are used, it will fall within
the definition of counterfeit. As pointed out earlier, it is a specific
procedure that is laid down for making this to be properly stamped
under the provisions of Bombay Stamp Act. The procedure is of
payment of money obtaining for receipts, forwarding the documents to
the concerned authority, getting the stamp affixed by the said authority,
putting proper seal by the said authority, endorsement and signature of
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proper authority on the said stamps and documents. Thus, if we
consider these circumstances, even if the stamps of the third category is
used which is a original stamp and it has not been used the same will
fall under the counterfeiting and will not come under the provisions of
document properly stamped under the provisions of Bombay Stamp
Act and rules as laiddown is not followed. Thus, reading of provisions
of counterfeiting as defined u/s. 28 and reading it with Section 255 of
IPC, there is no doubt that performing act of any of the three
eventuality will be an offence u/s. 255 of IPC. Considering these
circumstances and the evidence of the GSO, ISP, the C.A. of FSL and the
GEQD, one comes to a definite conclusion that the stamps which are
affixed on documents Articles 6/1 to Articles 6/68 are counterfeit
government stamps. From the evidence of the office of Ashok Leyland
, it is clear that the offence of Telgi was supplying these documents
with affixed special adhesive stamps. The various receipts and bills
identified is established to be given by the firm of Accused no 1. The
same is also admitted by accused no.1. The payments were made by
cheques, the various documents clearly establish the deposit of cheques
and withdrawal of these cheques from account of Telgiaccused no.1.
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All these circumstances clearly established that these stamps were
certainly purchased by Ashok Leyland after payment of the said
amount to accused no.1. Thus, the fact that accused no.1 supplied
counterfeit stamps to Ashok Leyland as has been alleged by the
prosecution stands established by the documents and evidence as
stated above. Hence, I answer this point in affirmative.
Point no 11 :
52. P.W. 5 has stated that he also received cash memos receipts
Exh. 31B in the name of GSO. As in case of the above stamps, various
experts reports have been obtained. All of them have stated that the
seals and receipts are forged receipts and not proved by the press. This
corroborates the contention of the officers of the GSO who have
deposed in that regard. Thus, considering these aspects, one can
certainly say that the receipts were also forged and false, documents
were given to Ashok Leyland . Hence I answer said point in affirmative.
Point no 12 :
53. Section 120B of IPC deals with conspiracy. Section 120B
defines conspiracy as two or more persons agree to do or cause to be
done any illegal act or an act which is not illegal by illegal means. It is
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necessary to consider another provision pertaining to proof as
contemplated by law. Section 3 of the Indian Evidence Act defines “a
fact exist to be proved after considering the matter before it, the court
either believes it to exist, or considers its existence so probable that a
prudent man ought under the circumstances of the particular case, to
act upon the supposition that it exists”. Thus, proof of a fact is as is
applicable to a common, general prudent person. The words “beyond
reasonable doubt” as is generally used with regard to the accused
cannot have any greater meaning beyond the purview of fact proved as
contemplated u/s. 3 of the Indian Evidence Act. It is under these
circumstances that the facts are to be appreciated in this particular
case. It is to be also a factor of consideration that the incident
occurred in the year 1995 and the entire process remained dormant till
judicial intervention in the year 2003 after the arrest of Telgi. As
pointed out above, the fact that Telgi sold such counterfeit stamps and
issued forged documents is not in dispute seriously. Even otherwise the
prosecution has established as pointed out above the fact that accused
no.1 issued such counterfeit special adhesive stamps and also receipts
which are forged. While considering the question of conspiracy, one
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has to consider it in two parts. The first part is with accused who are
alleged suppliers . Accused nos. 3, 4 and 5 are alleged suppliers.
Accused nos. 2, 6,7,8 and 10 are alleged workers who are working in
the Office of Telgi. It is necessary to consider the conspiracy as between
these persons separately. It is not necessary that all the conspirators
should be at one and the same place, one and the same time and
entered into a conspiracy. A conspiracy can be a set of separate
meetings with separate persons to obtain a common object to commit
an act which is an offence. It is like a necklace of beads wherein each
bead is separate, but together they form a necklace. Considering these
circumstances, we have to appreciate whether the prosecution has
established conspiracy. As pointed out earlier, the category of accused
is divided into three parts viz. suppliers, workers and other supporting
staff.
54. I shall first consider the conspiracy as is alleged between
accused nos. 4 and 1. From the evidence of various witnesses viz. the
workers working at Telgi's Office, it is seen that Anil P.W. 6,pw 7
identifies accused no.4. All these persons identified on different
occasion the existence of Telgi and Soni together in the office. It is also
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in evidence that Soni was also arrested in another case registered with
MRA Marg PS along with accused no.1 for similar offence for which he
has been convicted and appeal is pending before the Hon'ble High
Court of Bombay. Considering all these circumstances, the evidence of
the coworker and other witnesses as pointed out above, establishes
clearly the fact that atleast accused no.4 and accused no.1 were
together since the end of 1993. Considering these circumstances and
the fact that accused no.4 was repeatedly coming and meeting accused
no.1 establishes some relationship between two. Thus, considering
these circumstances subsequent acts of Telgi in applying for stamp duty
and his involvement in the counterfeit stamps as stated above and the
further evidence of accused no.4 being along accused no.1 Telgi for a
substantial period thereafter creates sufficient ground or his sufficient
evidence to come to a conclusion that Ram Ratan Soni was in fact
associated with the accused no.1 and was taking active part in the
business of the counterfeiting as propagated by Telgi. It is with great
wisdom that the fact proved has been given the status of being in
existence so probable that a prudent man can consider the existence of
the said fact . The above circumstances shall be sufficient to show that
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Ram Ratan Soniaccused no.4 was in fact closely associated with Telgi
during the period of transactions. Considering these circumstances,
the involvement of conspiracy and the involvement of conspiracy of
preparing counterfeit stamps of a period of custody stands differed as
regards accused no.4.
The alleged offence viz. Conspiracy to deal in counterfeiting of
government stamps of Ashok Leyland, being in possession of said
material, sell of such material being in possession of counterfeit
stamps, using genuine counterfeit stamps, using used stamps, forgery,
cheating, forgery of public document, forgery of valuable security
stands established as against accused no.4 Ram Ratan Soni.
55. Now I shall consider another supplier viz. Mohammed
Yasinaccused no.3. In this regard, the evidence of PWs. 13,14 & 16
highlights this issue. P.W. 13 & 14 are the supplier of stamps to Yasin.
PW 16 is driver of Yasin. PW 16 has identified accused no 1 with
Mohd. Yasin A3 as such. Considering this evidence, apparently, it is
soon that Telgi and Mohd. Yasin were soon together. Using the same
analogy as is applicable to Ram Ratan Soni, the offence as against
Mohd. Yasin is made out. Mohd. Yasin is said to be supplier who has
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supplied gum washed stamps from Kolkata to accused no.1. There is
no evidence of such Gum washing or recovery from accused no 3, but
one cannot expect the same after a period of about 810 yrs.
56. Now I Shall consider relating to accused no.7Sanjay
Gaikwad. P.W. 5Mopalwar speaks out the alleged transaction and
forgery. P.W. 6Anil Bambani identifies accused no.7Sanjay Gaikwad in
the Office of accused no.1Telgi, ( his evidence in 111 & 112 is to be
read in this case as per note on the oral evidence). P.W.6 also identifies
A3Sanjay Gaikwad, Thus, from the evidence of P.W6, the modus
operandi of putting of stamps is established. From the evidence the
close relationship of Sanjay Gaikwad with Telgi has been established.
Putting these two circumstances together, it would come to an
inevitable conclusion that Sanjay Gaikwad entered into conspiracy of
preparing and supply of counterfeit stamps along with Telgi.
57. Now we come down to conspiracy as regards the other
accused viz. Accused no.2Shabbir Shaikh, accused no.6Riyaz Mokashi
, accused no.7Mallesh Dullanwar accused no.8Daniel and accused no
10 Inam . It is not disputed that all these persons were working with
accused no.1Telgi. It has also not been disputed by these persons that
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Telgi was dealing in counterfeit stamps. Much was harped upon by
these accused that the witnesses deposing against them were in fact
the accused in the earlier investigation. On perusal of the entire
chargesheet and even the investigation as carried out by accused no.
10, nowhere the complicity of these witnesses, is seen. In fact
statements of Salim Yahoo was recorded by accused no 10 way back in
1995. It has been admitted that accused nos. 5 and 6 in their
statements u/s. 313 of Cr.P.C. admitted that they were residing in New
Metro Guest House alongwith Telgi. Daniel A8 also admitted the said
fact. The evidence of P.W. 6 shows that blank documents collected
from company is to be presented to Riyaz, Mallesh Dullanwar and
Daniel. P.W. 6 Anil Bambani has also supported the fact that accused
Riyaz, Mallesh and Daniel used to collect stamps. P.W.36 has also
stated that the customers of the documents used to hand over to Riyaz,
Mallesh and Daniel. Considering all these circumstances and the fact
that admittedly these persons were staying with Telgi. Accused no.2
Shabbir Shaikh, A8Daniel come from the same locality as that of
Telgi. These persons had to show something more than just taking
advantage of the fact that they were working driver, peon or delivery
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boy of Telgi. Their roles were apparently other than what is alleged by
them. Their remaining with Accused no1 every where in each of his
offices, for office meetings and only persons taking the blank
documents out of the office and bringing it back stamped to the office
shows their role in excess than their defence of mere employees. The
cross examination of the witnesses employees of Telgi does not show
such excesses. In fact, it would be seen that these four workers were
common during different periods of time when P.W. 34 to P.W. 38 were
working with Telgi. Thus, their involvement with Telgi for a long time
stands established. There are no circumstances to show the exact
nature of their job, the salary received by them, if any, and the purpose
of accommodating them in Metro Guest House along with accused no.1
and the reason for such generosity by accused no.1. Apparently, all
these persons are very closely associated and working with accused no.
1, evidence of these witnesses established these close relationship and
long lasting relationship with accused no.1. They have not denied the
fact that accused no.1 was dealing in such counterfeit stamps. The
source of knowledge of such information, lack of specific details as
stated by other witnesses, workers, period of working, closeness and
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associated with accused no.1 and the period of time bring to a
conclusion that they were working together with Telgi in perpetrating
the crime of counterfeit stamps and were active members in such
conspiracy. Apparently, the evidence does not attribute specific role to
the specific accused and hence, one can only say that these members
are of such conspiracy.
58. As regards accused no 10 the evidence of Pws.1921 does
not give such evidence against the accused except he being a regular
employee of Telgi. The statement of Fatima PW 21 cannot be
considered as evidence of fact but only pertains to her giving of such
statement to CBI. Considering this aspect there is no evidence against
the accused No 10.
Point no 13 & 14:
59. As regards accused no. 9, one has to consider conspiracy in
its unique sense. Conspiracy to commit an act could be in part. It
could be in different location and/or different places. It could be with
persons who never met one another. What is important is the fact that
all these were part of a transaction leading to commission of an
offence. It could be that during such process, number of other offences
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could also be committed. Thus, conspiracies could be group of
conspiracies leading to a common object. Conspiracy has been defined
as pointed out earlier in Section 120A of the IPC when two or more
persons agreed to do, or cause to be done an illegal act, thus implies of
meeting of mind. Explanation to it states that “it is immaterial whether
the illegal act is the ultimate object of such agreement, or is merely
incidental to that object”. As pointed out above, charge u/s. 120B has
been framed against accused no.9. Before proceeding to see whether
accused no.9 is also involved in conspiracy or abetment as defined u/s.
109, it would be necessary to consider if the allegations as pointed out
by the prosecution are made out.
60. The charge against the accusedpolice officers is also in the
three cases u/s. 109 of the IPC. It is contended that u/s. 109, the
abetement pertains to the offence which has been committed here in
these proceedings. Apparently, the present offences have been
committed in the year 199595 and that the abetment is of charge from
19952003. It is contended that as the charge of alleged abetment is
beyond the act of alleged forgery of stamps committed during the
course of this transaction, the same will not amount to abetment of the
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said offence. It is hence, contended that no charge could have been
framed u/s. 109 and even on this ground, the accused should be
acquitted to the said offence.
61. As against this, it is contended by the learned S.P.P. by
permitting to Telgi escape, the accusedpolice officers have facilitated
the offences which Telgi had committed subsequently after his release
and hence, accused should be charged and committed of the said
offences.
62. On perusal of the entire chargesheet and the charges
framed against the police investigating officers, it is apparent that the
charge of abetment of the later offences committed by Telgi subsequent
to his escape from the Hon'ble Bombay High Court. It is true that in
regular course or generally a person is tried for an abetment of the
offence which is being tried in the said case then this would be an
unique case wherein after the commission of the offence, a person is
being tried for abetment. Section 109 states punishment for abetment
of an offence viz. the punishment which is there for the offence of
abetment. The learned counsel for the accused has distinguished the
such cases of abetment stating that the provisions of abetment are
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retrospective in nature and not prospective in nature. He relied upon
the ruling of Trilokchand vs. State of Delhi reported in 1977 SC 666
wherein the Hon'ble Supreme Court of India while considering the
issue of abetment has held that intention to do the commission of
crime is the gist of the offence of abetment by aid. He also further
relied upon the ruling of Ranjit Singh Sharma vs. State of
Maharashtra reported in 2005 SCC (Cri) 1057. At the outset, the
said case relates to the provisions of MCOC Act which is completely
different provision than the Indian Penal Code. Moreover, the case
pertains to appreciating the evidence prima facie, for consideration of
bail. Thus, the law as enunciated in the Ranjit Singh Sharma's case
will not be applicable to the present case and the interpretation of
abetment as contended therein should not be applicable to this case.
Even the Hon'ble Supreme Court of India has distinguished the
abetment in normal sense to that of abetment in case of MCOCA in the
case of Kishorilal vs. State of M.P. reported in (2007) Volume 3 SCC
(Cri) 701, the Hon'ble Supreme Court of India has defined abetment of
a thing. The offence of abetment is if he instigates, engages or
intentionally aids, by act or illegal omission, the doing of that thing.
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These things are essential to complete abetment as a crime. It has
further been highlighted the word 'instigate' means to provoke, incite,
urge on or bring about by persuasion to do any thing. 'Abetted' in
Section 109 means the specific offence abetted. Therefore, the offence
for abetment of which a person is charged with the abetment is
normally linked with the proved offence. In the case of Besistha
Naryan Singh vs. State of Maharashtra reported in 2004, ALL MR
(Cri) 2596, the Hon'ble Bombay High Court has considered the issue
of conspiracy. It is held that conspiracy arises and offence is committed
as soon as agreement is made and the offence continued to be
committed solong the combination persists. The essential ingredients
of offence is agreement to commit offence. Further, the case of Saju
vs. State of Kerala reported in 2001, Cr.L.J. page 102, the Hon'ble
Supreme Court of India has held that u/s. 10 of Evidence Act, the
conduct of one accused can be used a offence against another in cases
of conspiracy. The Hon'ble Supreme Court of India highlighted the
judgment meaning given to criminal conspiracy in the case of E.G.
Barsay vs. The State of Bombay (AIR 1961 SC 1762).
“The gist of the offence is an agreement to break the law. The parties
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to such an agreement will be guilty of criminal conspiracy, though the
illegal act agreed to be done has not been done. So too, it is not an
ingredient of the offence that all the parties should agree to do a single
illegal act. It may comprise the commission of a number of acts.
Under S. 43 of the Indian Penal Code, an act would be illegal if it is an
offence or if it is prohibited by law. Under the first charge the accused
are charged with having conspired to do three categories of illegal acts,
and the mere fact that all of them could not be convicted separately in
respect of each of the offences has no relevancy in considering the
question whether the offence of conspiracy has been committed. They
are all guilty of the offence of conspiracy to do illegal acts, though for
individual offences all of them may be liable”.
From the provisions of Sections 106, 107 and the said ruling, it is seen
that conspiracy implies an agreement to break the law. It is not
necessary that all the parties should do any act, but it may be the
number of acts. It should not be necessary that each individual act
should be illegal act and legal act. A legal act leading to illegal act or
to commit illegal act would also be conspiracy. There has to be seen
ultimate object. If there is agreement and there is ultimate object
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which is an offence then conspiracy is established. the conspiracy may
not be at one place and time, but it can be at different places and
different time of the conspirators did not know one another. It is also
highlighted that the offences of conspiracy is something different than
that of other offences and if separate offences than itself while
considering abetment it has been contended that the prosecution is
required to prove that the abettor has instigated same being absent
according to the learned counsel, the accused should be acquitted. He
also relied upon the case of State of Rajasthan vs. Kesa & Ors.
reported in 2002, Cr.L.J. page 432 wherein it has been held again as
stated in the above ruling pertaining to criminal conspiracy has been
reiterated. Thus, considering all these facts and circumstances, one has
to consider whether if the alleged act of officers in constituting
abetment. This shall be discussed while considering the facts of the
case. the aspect that has to be discussed is whether the previous
conduct or act during the present offence which according to
prosecution has facilitated future offence can e considered. At the
outset, it may be pointed out that during the course of trial, it is an
admitted fact that Telgi and others were also prosecuted under MCOCA
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for committing such many offences before the learned Special Judge at
Pune. The accused has pleaded guilty to all the charges and have been
convicted in the said offence. This pertains to various incidents for the
period of which facilitation is alleged in the present case. The facts
and circumstances of the MCOCA case and the charge in the said case
has been highlighted by my predecessor in her order dated 14.5.2008.
The contention taken in the said application and the point before my
learned predecessor Judge was that the nature of allegation being the
same in the MCOCA case and the present case, it would amount to
double jeopardize. Thus, it was contended that the charges for
abetment and conspiracy should be dropped. If we perused the said
law as laiddown by the Hon'ble Supreme Court of India in the above
referred cases and so also the order passed by my learned predecessor,
one can certainly see that what the prosecution intends to prove in this
case is facilitation and forgery of stamps by accused no.1 and his
associates subsequent to 1.12.1995 when the accused Telgi was last
seen before his arrest in 20032004.
63. Section 107 defines what is abetment. As already pointed
out above, it implies instigation, engagement and aiding. Section 107
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only provides a meaning to word 'abetment'. It is pertinent to note
here that the legislature also contemplated explanation to the said
provision which further highlighted or states, nature and scope of the
word 'abetment' as contemplated under the law. Explanation 2 to
Section 107 reads as under:
“Explanation 2. Whoever, either prior to or at the time of the
commission of an act, does anything in order to facilitate the
commission of that act, and thereby facilitate the commission thereof,
is said to aid the doing of that act”.
Thus, facilitation of the commission of the act is said to aid to doing of
the act and hence, abetment of the act. The act of abetment of the case
process the offence. Thus, perse if we considered the offence of
abetment, it almost occurred before and pertains to performing of a
future act or subsequent act by the accused. This is also proved in case
of conspiracy. Thus, if we isolated the allegations with by getting Telgi
caught free or absconding or helping him escape from the court from
the rigorous of law, it could be said to be facilitating the accused so
that he could commit such offence which admittedly he has done
subsequently. the person evades the process of law in order to escape
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the clutches of law and as in this case it has been pointed out to again
commit similar offences, apparently, from the facts and circumstances
as is pointed out in various documents filed by the accused himself, it is
seen that prior to 1.12.1995, Telgi was seen to be a local scam star who
was operating with few companies in Bombay. Apparently, after the
escape or fleeing away on 1.12.1995, it is seen that he has expanded
his illegal activities all over India. The seriousness of the offence was
also considered by the Hon'ble Bombay High Court and also by the
Supreme Court of India. The Hon'ble Bombay High Court even
monitored the investigation and the present investigation also. the
enormity of the act of Telgi subsequent thereto caused the formation of
SIT, caused the CBI to investigate the offence and also caused the
invocation of secret provisions of MCOCA against Telgi. All these
aspects are part of record in the present proceedings and as such,
admitted by the parties. Hence, judicial notice of these contentions can
be taken. For considering this issue, it would be suffice to say that
these are admitted facts that Telgi after 1.12.1995, committed similar
offences of counterfeiting stamp etc. and he has been convicted by a
competent court in that regard. The issue as to whether permitting
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Telgi to escape and other acts and commissions amounts to facilitation
of actual aspect will be considered subsequently, but suffice to say that
as a result of such, Telgi being free he has committed such further
offences. Thus, the act of the investigating officer as alleged if
established, will certainly come within the definition of facilitation. As
alleged by the prosecution, the facts are so established that will
amount to facilitation of commission of an offence. It will fall under
the provisions of abetment and section 109 of the IPC. The only
question remains as to whether the said offence can be tried with the
present offence. While passing the order, my learned predecessor has
considered the said issue and as held that as the present offence of the
investigating officers has been committed during the course of
transaction and series of acts forming part of such transaction, the
same can be charged and tried together. Considering this aspect by an
application of Section 221 of Cr.P.C. and other provisions of law,
certainly the offence of abetment committed between 1995 and
thereafter can be tried in this trial. These are peculiar circumstances
which are linked to the facts of the present case. The culpability of the
officer was investigated on the directions of the Hon'ble Bombay High
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Court. This was done after a substantial long period of commission of
offence i.e. nearly after eight years. It was only when the entire action
of the police officer was viewed in that context that the alleged
offence is said to have been committed by the police officers. Thus,
considering all the circumstances, one cannot say that there is any fault
in the prosecution to try these offences with the present offence. The
alleged acts of the investigating officers, if proved, will establish and
falls within the provisions of abetment as contemplated by law.
Charges have been framed very specifically as regards accused no.9.
As per the charge framed, number of commissions and omissions have
been attributed to accused no.9.
64. At the outset, the entire evidence of the prosecution is
based upon the case diary viz. Exhibit 31 colly. This case diary
maintained during the investigation of Crime by accused no 10 . is
admitted. As regards investigation, no further facts are attributed than
stated in the case diary. Another aspect that is to be considered is the
objection taken by this I.O. to the bail application, both, before the
Sessions Court and the Hon'ble Bombay High Court.
It is the main ground of defence of the accused that all the knowledge
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that is attributed to accused no.10 is also attributed to various other
senior police officers to whom the investigation was disclosed from
time to time. Same is also attributed to the DCB.CID, SIT, CBI to whom
the investigation was transferred from time to time. It is further
contended that similar omissions have also been done by the other
senior police officers. Investigation was placed up to the rank of DCP
and Minister for Law and Order. So also it is contended that similar
omissions have also been committed by the officers of DCB,CID, SIT
and CBI and also that of investigating officer Mr. Mukhedkar while
investigating the offence registered in MRA Marg police station. It is
also contended that the investigation of MRA Marg police station
should be treated as basis and comparison should be made with the
present investigation and on comparison, according to the learned
counsel for the accused, one will find that similar investigation has
been carried out. It is contended that the investigation as carried out
by accused no.10 was to the best of his ability, capability and
understanding. Ability differs from person to person and hence, like
improper ability will not implicate the accused.
65. At the outset, the contention of the learned SPP that there
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can be no comparison of the investigation and the role of investigating
officer the accused and the other investigating officers as to be
accepted. This is simply so because the charges are framed against the
present accused I.O. Just because charges are not framed against other
I.Os. or a particular I.O. investigated for circumstances stated therein in
a particular way does not in any way absolve the present investigating
officer who is arraigned as an accused. Thus, the entire line of cross
examination and the defence of the accusedinvestigating officer of
trying to compare his activities or his action with that of other I.Os.
And trying to bring about their faults cannot be considered. It merely
shows that the accused is trying to put the blame on other officers.
Even if it is presumed or the contention of the accused is accepted that
the other accused have committed a crime or committed similar act, it
will not absolve to present accused. At the most the action of these
officers may be to consider if the acts of accused are bonafide.
Considering these circumstances, the entire line of crossexamination
and evidence and contentions of comparison of investigation carried
out by Bhole, Sr. P.I., P.I. Crime, ACP, DCP Karkare, would be of no
consequence and has to be ignored as such. As is said, the case diary
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reflects the investigation carried out by a officer and supported his
investigation. In similar circumstances, the case diary at Exhibit 31
colly. supports the investigation carried out by accused no.9.
66. It is necessary to ascertain whether the knowledge
attributed to the accused no. 9 is made out. The first knowledge
regarding allegation of counterfeiting and defrauding the government
of revenue is an admitted fact and not disputed. The fact that Telgi has
committed such offence is also is an admitted. Reply of Accused no. 9
to the application for anticipatory bail both before the Sessions Court
and the Hon'ble Bombay High Court establishes that accused Jadhav
was having knowledge about accused no.1Telgi dealing in counterfeit
stamps and special adhesive stamps etc. and the said dealings are with
Ashok Leyland so also about similar offence being registered with other
police station,( crime report 29 Exh. 91).The fact that special adhesive
stamps can only be sold by GSO, so also the fact that Sanjay Gaikwad
and Sony were arrested as associates of Telgi by MRA Marg police
station, payments were made by cheque and said cheques were
encashed by Telgi and that documents which were allegedly counterfeit
stamps were produced before him so also the fact that the arrest of
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Telgi was necessary. Accused no. 9 has not denied that he was aware
of these facts. In fact, in replies to the anticipatory bail application
before the Sessions Court and the Hon'ble Bombay High Court
highlight the said fact.
67. Now let us consider the omissions if are established. To
understand these omissions if are established, one has to consider the
various investigations as are carried out. It is not disputed that the
offence came to be registered on a complaint of Mopalwar. It is seen
that directions were to arrest the accused. On 31/7/1995 the
investigation of this crime was handed over to A/9 API Jadhav.
In case diary – Exh 95( Note 29) A/9 Jadhav has mentioned that he
had received information about the offence registered at other against
accd. Telgi and his associates and detail inquiries is being made. Ram
Ratan Soni was not interrogated. Stamps not sent for verification to
ISP, Nasik. The stamps not sent to Chemical Analyser so as to trace out
whether there is chemical washing. These documents along with
recovered documents not sent to GEQD. He could have traced money
trails, cash and cheques, buyers and customers of this spurious
instruments. There should have been backtracking, tracing of printing
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as well as chemicals, marketing network, transportation system of
Telgi. A/1 Telgi was witness in case registered by A9 Jadhav at C.R.
No.333/94 in Cuffe Parade P. Stn. and there is remark of PI Crime
about the same in the case diary. Therefore A/9 Jadhav was aware A/1
Telgi, he did not pursue this lead to trace him out. During the
investigation with Salim yahoo and Punnadurai done by A9 Jadhav he
came to know that Telgi had sold the special adhesive stamps to
various organizations like : (i) Bank of India, D.N. Road Branch (ii)
New India Insurance Company, Fort (iii) Ashok Leyland Co., World
Trade Centre, BHPCL (iv) Purnanand (v) Mastic Bank , Nariman Point
(vi) Bank of Baroda, Churchgate, (vii) HDFC Bank, Lower Parel. A/9
Jadhav had not initiated any steps for further investigation in respect
of sell of counterfeit stamps to these organizations. Original
documents were not seized immediately .
A/9 Jadhav had not maintained the diary about the presence of A/1
Telgi at the time of attendance of Telgi at the time of hearing on
anticipatory bail appln. before the Sessions Court and High Court e.g.
there is mention that it was adjourned on 20/11/95 but there is no
diary of 20/11/95, 21/11/95, 29/11/95.
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It is also seen that the addresses as stated in the bail application of Shiv
Sadan was false. From the said noting, it is seen that Sessions Court
has directed Telgi to appear and in assist in investigation, . What steps
were taken when he attended as per note No 37 Exh 91. What
interrogation was carried out is not stated.
In Note no. 40 (XXXX) dtd 1/11/1995 the concerned officer has
alleged tried to search for Telgi in the locality of High Court of
Mumbai, after the rejection of ABA by Sessions Court. It is contended
that before order of rejection was passed, the accused went away from
from the court and hence, he cannot be arrested. But if it was known
that the accused was not traceable, it was his abundant duty to try to
keep a tab on the accused who was present in the court. Why such
steps as taken on or before 1/11/195 were not taken on 1/12/1995 is
not explained by the accused. Thereafter there is apparent lull in the
investigation.
Thus, if the entire proceedings are seen it be seen that apparently
therein, not pursued investigation carried out to trace out the address
of Telgi or other known accused, not pursued investigation to trace out
as to which persons were attending the office of Telgi, the names and
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addresses of such persons how Telgi came in possession of this
premises. The investigating officer has further not pursued
investigation with regard to other transactions which he could have
seen from the statement of account of Telgi which he had recovered
from Citi Bank and State Bank of India. It is not seen that he pointed
out specifically to the learned Sessions Court and the Hon'ble Bombay
High Court about the address of Telgi not being known so also it is
seen that noncompliance of order of the learned Sessions Court
directing attendance has also not been highlighted.
68. Thus, from all these circumstances and the facts stated
above, let us see if the omissions as stated in the charge stands
established. First pertains to noncompliance of instructions of
superior. From the case diary itself, it is apparent that the directions
given from time to time were not followed, the statements of witnesses
were not diligently recorded immediately, no efforts were being made
to trace out the other accused. The other omissions is incidental to
this. There is difference in colour and quality of the different stamps
affixed on the agreements.
69. It is always said that investigation which is carried out
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earlier reveals the most of the evidence. As investigation gets delayed,
one looses important evidence. It is apparent that if Telgi was traced
or interrogated, involvement of other accused could have been
revealed, such counterfeit stamps or seals used of GSO could have been
recovered, but this was never done. Accused no.9 was well aware that
other two accused Sony and Gaikwad were also arrested with Telgi by
MRA Marg police station. Surprisingly the present I.O. did not feel it
relevant to interrogate both of these two if not for the purpose of their
involvement in the present offence, but atleast to find out modus
operandi and whereabouts of accused no.1. It was contended by the
accused no. 9 that as per his ability, capability and understanding, he
has carried out investigation. It is also his defence that he was
involved in number of investigations and so also involved in special
duties which resulted in some laxity in investigation. It is also
submitted that the investigation or the entire nature of fraud could not
be gathered and it was considered as an isolated case of forgery and
counterfeiting. The ability, capability and competence of accused no.9
is evident from the fact that he was posted in GBCID a special branch.
If he was given various special duties, thus, this speaks highly of
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competency, ability and capability of accused no.9. The other
contention of investigation could be carried out further on arrest of
Telgi false on the ground as he himself has carried out investigation
with other witnesses, but has not persuaded them further for the
reasons best known to him. May be arrest of Telgi was material, but
being a seasoned police officer and handling somany investigations , it
is not expected that he would get the lead in the case easily. It was
necessary for him to investigate and to unearth the lead. It was
purported that crime stopped after investigation was taken out cannot
be credited to accused no.9. Accepting the contention of accused no.
9 that he was involved in various special duties. etc. we may ignore
period between two case diaries.
70. Thus, perse from the investigation papers which are
admitted documents, it is seen that the entire process of investigation
as carried out by accused no.9 there is lack of omissions as stated in
the charge are aptly highlighted. The fact that the directions of the
superior were never followed is also apparent from the case diary. The
fact that documents were not forwarded to the ISP or FSL also
apparent from the case diary. No reasons have been assigned as to why
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it was not done so. It is contended that investigation was never taken
over by the senior officers, no disciplinary action was taken by the
senior officer. The omissions and acts as stated are so very apparent
and so very clear that it cannot be said to be something which is
beyond the nature of common prudent investigating officer much so of
a highly intelligent investigating officer like accused no.9.
71. The charge framed against accused no.9 is not merely of
committing such omission. The charge is by committing such
misconduct, the accused has assisted in closure of investigation in the
said case so as to allowing the principal accused no.1 remained caught
free in order to facilitate and further continuation of such conspiracy
for counterfeiting of such special adhesive stamps. It is not in dispute
that Telgi was never arrested for a substantial period of time. It is also
not disputed that even subsequently Telgi carried out his activities of
counterfeiting government stamps. Now the only issue arises is
whether it is done intentionally or not. If it amounts to an intentional
act, then only it will fall within the definition of an offence or part of
conspiracy.
72. It is necessary to mention here that the offence alleged is
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also facilitation as contemplated u/s. 107 Explanation 2. As is pointed
out earlier, facilitation a commission of an act can be said to be
abetment, but one has to read the explanation in its entirety. It says
“whoever, either prior to or at the time of commission of an act, does
anything in order to facilitate the commission of that act, and thereby
facilitate the commission thereof, is said to aid the doing of that act”.
Admittedly, the act of abetment is the offence of subsequent
counterfeiting. The act of counterfeiting can be divided into number of
acts as in this case. Each counterfeiting would be a separate offence in
itself. In the present trial, it is only the offence of Ashok Leyland that
has been considered. There is no evidence or any specific overtact or
counterfeiting contended to be done by accused after 1.12.1995. Thus,
from these facts and circumstances, although facilitating could be an
offence, it would be an offence of further act and not while considering
a past act. Thus, facilitation of further counterfeiting cannot be linked
to counterfeiting pertaining to Ashok Leyland. Thus, offence u/s. 109
will not be made out, but charge is also framed u/s. 120B. One has to
consider whether it will be a part of conspiracy. Apparently, from the
entire evidence on record, there is nothing to establish the direct link
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of accused no.9 and Telgi. What is the base of meeting of minds of
Telgi and whether such meeting of mind would be required.
Conspiracy is between two persons and can be gathered only from the
circumstances. From the facts and circumstances of the case, it is
apparent that the omissions as alleged against investigating officer are
blatant and apparent on the face of it. One cannot comprehend such
blatant mistakes of any I.O. Considering these circumstances, it is not
necessary that there should be specific evidence of meeting of mind of
Telgi and accused no.9. Law contemplates meeting of mind of any two
persons. Suffice to say that said circumstances point out existence of
proper ground to come to a conclusion that there was some conspiracy
hatched, but classified the case as “A” summary and in pursuance
thereof the activities and investigation was carried out. How can one
explain the fact that in spite of witnesses being investigated, in spite of
property being seized, the nature of counterfeiting was not examined,
in spite of various leads about various addresses of Telgi were present,
none of them was followed, in spite of there being other accused than
Telgi, surprisingly no search or effective search was carried out of any
of these persons. The reasons for such blatant lie cannot be
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apprehended. Having considered these circumstances, apparently,
there exist circumstances to establish conspiracy as alleged by the
prosecution.
73. The second aspect pertains to criminal misconduct as
contemplated u/s. 13(1)(d) of the Act. Misconduct is a very different
terminology which has been used by the Legislature under the P.C. Act.
Section 13(1) contemplates or defined misconduct. Subsection 13(1)
(d) contemplates that by corrupt or illegal means, obtains for himself
or for any other person any valuable thing or pecuniary advantage or
by abusing his position as a public servant, obtains for himself or for
any other person any valuable thing or pecuniary advantage; or while
holding office as a public servant, obtains for any person any valuable
thing or pecuniary advantage without any public interest. The third
part of holding office as a public servant, obtains for any person any
valuable thing or pecuniary advantage without any public interest and
so also abusing his position as public servant and obtains for any other
person any valuable thing or pecuniary advantage could be applicable
in the present case. In the case reported in the year 1962 between M.
Narayan Vs. State of Kerala reported in AIR 1963, SC 1116, the
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Hon'ble Supreme Court of India has stated that a new offence of
criminal misconduct by a public servant has been created under the Act
and it enacted a rebuttal presumption contradictory to well known
principles of criminal jurisprudence. It is a socially useful measure
conceived in public interest and it should be liberally construed so as to
bring about desire object i.e. to prevent corruption amongst public
servants and to prevent harassment of the honest amongst them so also
if an act is performed under the colour of authority, but which in the
reality is for public servant's own pleasure or benefit then such act shall
not be protected under the doctrine of such immunity. In the case of
Narayan Vs. State of Kerala, the case of public servant causing
wrongful loss to the government benefiting a third party squarely falls
within the definition of misconduct. Thus, it is not necessary that there
should be corrupt or illegal means, legal act benefiting a third party
without any public interest can amount to a misconduct. Abuse of
position will also fall within such definition. The abuse means use of
position for something for which it is not intended. Abuse may be by
corrupt or illegal means or otherwise than those means. There is no
limitation on the otherwise . The only limitation is about abuse which
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indicates necessity for a dishonest intention to bring it within this
clause.
74. It was urged by the learned SPP that the confession as
recorded of Telgi should be read in these two cases. At the outset, it is
necessary to consider the facts and circumstances prior to recording of
confession. The three trials which going before this court are Special
Case Nos. 111/2004, 112/2004 and also Special Case No. 10/2011.
Spl. Case No. 10/2011 was initially S.C. No. 550/1996 and it was tried
as such as it was directed to be renumbered as Special Case by my
learned predecessor. The trial of Special Case Nos. 111/2004 and
112/2004 started before hand and the said two trials which were
clubbed together as has been indicated by me while considering the
validity of clubbing. The evidence was proceeded in these two cases to
be recorded by my predecessor and at that time, in January 2006, Telgi
proposed to confess. The same was objected to by the accused in these
two cases. My learned predecessor uphold the objection and states
that trial has already commenced, confession of accused no.1 u/s. 164
cannot be read and hence, rejected the relief as claimed by accused no.
1, but in Case No. 10/2011 (S.C. No. 550/2004) even the same was
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not committed and hence, Court permitted recording of confession in
that case and accordingly the same came to be recorded. This order of
the then Sessions Judge was challenged before the Hon'ble Bombay
High Court and the same came to be rejected also by the Hon'ble
Bombay High Court upholding the order of recording of confession.
Thus, confession was validly recorded at that trial by making due
compliance, but it was so recorded in Special Case No. 10/2011.
75. Subsequently the trial of Special Case No. 10/2011 started
and by an order of the learned predecessor on 27.6.2011, Special Case
Nos. 111/2004 and 112/2004 was clubbed together with Spl. Case No.
10/2011. In the proceedings viz. Spl. Case No. 10/11, an application
came to be preferred vide Exhibit 18, praying that the complainant Mr.
Mopalwar to be made an accused. The said application was preferred
by accused no.1. While considering the said application, reliance on
the said confession of accused no.1 was being sought. My learned
predecessor considered the said application on merits and directed that
the complainant Mr. Mopalwar i.e. the Superintendent of G.S.O. should
be joined and arraigned as an accused. The said order is challenged
before the Hon'ble Bombay High Court and is subjudiced and the effect
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and operation of the said order is stayed. From the order, it is seen
that the order of joining Mr. Mopalwar, Superintendent of G.S.O.,
Mumbai has been passed by my learned predecessor in all the three
cases and while passing the said order has relied upon the confession
of Telgi.
76. Apparently, in view of the order of the Hon'ble High Court,
staying the execution and operation of the said order of joining
accused below Exhibit 18 being stayed, one cannot read the contents of
the said application.
77. Suffice it to say that provisions of Section 164 are very
strict and stringent and has to be read as they are. The evidence was
not recorded in this case when the case was not before the Hon'ble
High Court when it decided the issue of Confession in this case. The
contention that confession cannot be read in these as trial as the earlier
evidence of the witness has been read in this case. This evidence in
earlier case being read in this case clearly violates the mandate of Sec
164 . One cannot subvert the procedure to read the evidence recorded
earlier to the confession and such confessions together by such a
method.
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78. The protection granted as such is highlighted by the facts of
the present case . It is apparent that the confession was recorded of
Telgi after the material witnesses were examined in Other cases . The
confession reeks of such evidence. It is given as if to corroborate the
evidence in these two cases and is ancillary to the evidence of this case.
The evidence of many persons allegedly stated in the confession was
not brought before this court to examine the veracity and correctness
of the confession. One cannot read the confession piecemeal and to
accept it or reject it entirely . So also it cannot be said the evidence is
truthful and corroborated. There is no evidence or disclosure about the
amount used and to whom given by Telgi . Thus technically the
evidence as recorded in this case prior to confession , hence using the
same law as laid down the rial and inquiry can be said to have
commenced commenced . Thus, considering these circumstances and
the provisions of Section 164 and the order of my learned predecessor
rejecting recording of confession in these cases certainly one comes to
only conclusion that the said confession cannot be read in this case also
.
79. As pointed out earlier and as pointed out while discussing
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clubbing of cases, the evidence in all these three cases has been
recorded separately and all the three cases are being tried separately.
The only aspect is that they are being tried together. These three cases
are not amalgamated together like Sessions cases and the special cases
in each of the cases. Thus, considering these circumstances, I do not
find any merit in the contention of the Special P.P. that the confession of
Telgi recorded in Special Case No. 10/11 should be considered.
80. It is apparent from the reading of the evidence in the
present case that there is no case made out that accused no. 9 got
some benefit or received some gain although it was tried to be stated
by the prosecution that Telgi's confession shows such obtaining of
pecuniary advantage, the same for the reasons hereinabove cannot be
considered. The word 'corrupt' has to be given a wider meaning
81. Considering these facts and circumstances,let us examine
the present alleged omissions of the accused Accused no 9 . As already
pointed out, there are blatant omissions committed by accused no.9.
These omissions are of such a nature that they apparently on the face
of it which shows apparent lack of even the basic ability, capability as
alleged by the accused in his defence. There is no dispute that accused
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no. 9 is a public servant. There is no dispute that even subsequently,
Telgi carried out his nefarious activities and committed Stamp Scam of
unparalleled nature. As is apparent from the plea and charge as
framed in the MCOC Court in Pune, Telgi was found in possession of
counterfeit stamps worth more than Rs.2000 crores. Such is the
magnitude of the lapse of act of accused no.9. Thus, the fact that very
small fish who was running around in waters of Mumbai, because he
could successfully evaded his arrest as a result of above improper
investigation became a shark. There is certainly grave pecuniary
advantage and he turned out to be a stamp shark committing offences
all over India. Thus, abuse of position stands established, gaining of
pecuniary advantage stands established. Considering this aspect, the
act of accused no.9 squarely falls within the definition of misconduct as
contemplated u/s. 13(1)(d) of the P.C. Act.
Point no. 15:
82. From the above aspect and discussion, it is seen that the
prosecution has established counterfeiting and has also established
counterfeiting of stamps used for revenue purpose. It has also
established that used stamps have been reused. Considering the
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entirety, prosecution has established commission of offences under
Sections 255, 256, 258, 259, 260 and 262 of the IPC.
83. From the issuance of the GSO receipts which are apparently
forged and false documents, it shows that the receipts can be valuable
document as it contemplates and certifies payment of revenue of the
government. Thus, it can be said to be a valuable security as
contemplated under the law. Thus, from these circumstances, offence
of forgery, forgery of valuable of securities, forgery of cheating, using
of forged documents as genuine as the same were given to the
concerned companies stands established. Thus, commission of offences
u/s. 465, 466, 467, 468 and 471 of IPC stands established.
84. As per the discussion above, the offences u/s. 13(1)(d) r/w
13(2) of the Prevention of Corruption Act stands established.
85. In absence of specific offences pertaining to the future act,
prosecution has failed to establish abetment. Hence, failed to establish
offences u/s. 109 of IPC.
86. Criminal conspiracy for dealing in such counterfeit stamps
is established so also for committing itself forgery is also established.
Hence, offence u/s. 120B of IPC is established by the prosecution.
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From the evidence on record, the fact that Telgi sold the stamps were
being dealt with by unauthorised persons stands established, but in
view of the sanction having failed, offence u/s. 63(a) and (b) are not
made out.
87. From the facts and circumstances as stated above, the
company was cheated by supply of stamps and induced into payment
of such amount. Thus, there is wrongful gain established, inducement
established with the purpose of cheating is established. Hence, offence
punishable u/s. 420 of IPC is established.
88. As regards A9 Jadhav, for the reasons stated above, offence
u/s. 218 of IPC is not made out. From the activities as stated herein
before, lack of detention, laxity has resulted in a public servant
omitting to apprehend such person and has also by not keeping a tab
on his moment on 1.12.1995 has intentionally suffered that person to
escape and aid such person to escape and hence, has committed
offence punishable u/s. 221 of the IPC.
89. Accused no.1Abdul Karim Ladsaheb Telgi has committed
offence punishable u/s. 255, 256, 258, 259, 260, 262, 418, 420, 465,
466, 467, 468 and 471 of IPC r/w Sec. 120B of IPC.
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90. Accused no.2Shabir Ahmed Mustaq Ahmed Shaikh, A3
Mohd. Sayed Mohd. Yasin, A4Ramratan Sriniwas Soni, and A5
Sanjay Jaywant Gaikwad have committed offences punishable u/s. 259
and 120B r/w 255, 256, 258, 259, 260, 262, 418, 420, 465, 466, 467,
468 and 471 of IPC r/w Sec. 120B of IPC. They are acquitted for
offences punishable u/s 255,256,259 of IPC . Accused no 2 is also
acquitted for offences punishable u/s 258,420,466,467,468 of IPC .
Accused nos 4 & 7 are acquitted for offence punishable u/s 63 of the
Bombay stamp act
91. Accused no.6Riyaz Ahmed Mokashi, A7 Mallesh Balappa
Dhulannavar and A8Daniel V. Kanikraj have committed offences
punishable u/s. 120B r/w 255, 256, 258, 259, 260, 262, 418, 420,
465, 466, 467, 468 and 471 of IPC r/w Sec. 120B of IPC. They are
acquitted for offences punishable u/s 255,256,259 of IPC . Accused no
10 Enam Mukhtarali Pirbhai Choudhary is acquitted of all charges
agaisnt him
92. Accused no.9. Ganpat Waman Jadhav has committed
offence punishable u/s. 221, 418 of IPC and u/s. 13(1)(d) r/w 13(2) of
P.C. Act r/w 255, 256, 258, 259, 260, 262, 418, 420, 465, 466, 467,
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468 and 471 of IPC r/w Sec. 120B of IPC.
93. Accused no 9 is acquitted for offence punishbale u/s 218
and 109 r/w 255, 256, 258, 259, 260, 262, 418, 420, 465, 466, 467,
468 of IPC.
94. Accused are convicted accordingly
95. At this stage, I shall take here a pause to hear the accused
on the point of sentence.
29th February, 2012. (A. SUBRAMANAIAM) SPECIAL JUDGE,
GREATER MUMBAI.
Heard accused and the learned counsel for the accused on
the point of sentence. It is submitted by the accused and their
advocates as under:
96. Accused No.1Telgi. I am suffering from HIV, uncontrollable
diabetes, heart disease, neuropathy, severe medical problem. I cannot
walk for 2 steps. Both legs are paralyzed. I am on wheelchair with two
supports. Cyst in left kidney. My health is deteriorating day by day. My
wife is on death bed. She is seriously ill. I have one daughter of
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marriageable age. There is no male person to look after my family. I am
the only male person. I pray for minimum sentence and lesser fine. I
cannot pay the fine. I pray for leniency. I am in Judicial custody since
07/11/2003. I pray for my set off. The sentence should run
concurrently.
97. Accused no. 2–Shabbir Ahmed Mustaq Shaikh. I am in jail
since last 10 years. There is nobody to look after my wife and small
sister. I pray for leniency and minimum fine. I was arrested on
28/10/2002 by Band Garden Police Station.
98. Accused no. 3Mohd. Yasin I am falsely implicated in this
case. I was acquitted in the case at Bangalore. I was transferred from
Bangalore in this case. I am illiterate. I am suffering from sickness.
Leniency be granted.
99. Accused. no. 4 Ramratan Soni. I am sole earning male
member of my family. I pray for lesser sentence and lesser fine.
100. Accused. no. 5Sanjay Gaikwad I am no feeling well. I have
suffered imprisonment in same offence for 7 years. I pray for minimum
fine and sentence
101. Accused no. 6 Riyaz Mokashi. My wife has small kids. I am
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sole earning member. My brother and father have died. My mother is
not well. I pray for minimum sentence. I am not in a position to
deposit fine.
102. Accused. no. 7Mallesh Dullanwar. I have 75 years old
mother, 3 children and wife. I am sole earning member. Since
04/09/03 till today, I am in custody. I pray for minimum sentence and
fine.
103. Accused. no. 8Daniel Kanikraj. I pray for minimum
sentence and fine.
104. Accused. no. 9Ganpat Jadhav. I have investigated
diligently and truthfully. I am sole earning member in my family. I have
not hidden any facts in my investigation and disclosed all the facts.
105. Considering the above submissions, I shall categorized the
accused into three categories viz. supplier, workers and government
servants.
106. As regards accused no.1, he is contended that on his
medical ground, he should be considered leniency. If a person learns
from his mistakes, leniency can be shown. Ones is a mistake and doing
it repeatedly is an habit. Even the arrest and detection of accused no.
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1Telgi did not deter him from carrying out his activities. One can say
that the acts of accused no.1 are nothing but economic terrorism on
the State. Not only has a State suffered, but number of persons,
private parties have suffered loss of such counterfeit stamps and
documents. It is necessary to consider that every counterfeit stamp put
in every case and every counterfeit seal put in each case, the accused
would be liable for such offence. No doubt as per the medical records
tendered by him, he is seen to suffer from various ailments. Suffice to
say that necessary medical aid is being provided at the States cost.
Considering these circumstances, the only leniency which can be
shown to accused no.1 is to collectively gave one sentence and not
separately for each stamp or seal counterfeit or forged by him. If it is
so considered, sentence would be of eternity. Considering these
circumstances, offence u/s. 255, 467 and 471 are punishable with life.
The conduct shows that there is no deterrent for him in spite of his
arrest and/or detention, he has not learnt from the said activities. In
fact, by pleading guilty, after long trial and praying for sentence is
nothing but mockery of the criminal justice system. From his alleged
activities, nothing short of deterrent punishment and punishment so
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that he cannot commit such offences again is required. Accused no.1
Telgi has complained about his illness, but in fact he is a virus, illness
to this society. Offence u/s. 255, 467, 471 are punishable with life. In
case of Swamy Shraddananda @ Murly Manohar Mishra v. State of
Karnataka [AIR 2008 SC 3040] the hon'ble Supreme Court of India
has stated that this court can decide the period of sentence and can be
for a life time also. Thus without remissison. Hence, maximum
punishment of Life imprisonment without remission is granted to the
accused.
107. For offences u/s. 256, 258,259, 260, 262, 418, 420, 465,
467, 468 and 471 of IPC is the granted imprisonment for a period of
five years. For offences u/s. 262,418,420, 465, 466, 467, 468 and 471
is granted imprisonment of two years.
108. As regards accused no.2Shabbir Ahmed Mustaq Ahmed
Shaikh and A5Sanjay Gaikwad, it is seen that Ram Ratan Soni has
also been convicted in one of the sister case. In the facts and
circumstances of the case, it seems that charge only u/s. 259 has been
established. As regards A4 Soni, apparently from the various charge
sheets, he was arrested in the somewhere in the year 2003. He was
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detained in jail since 201011. Similar, is the case of other accused
Shabir Shaikh who was arrested on 27.1.2003, A5 Sanjay Gaikwad
who was arrested on 15.9.2003. They have undergone substantial
period in jail during the trial of this case. Apparently, from the facts
and circumstances of the case as pointed out in my judgment, except
being in possession and associating with accused no.1, nothing has
been established as against these accused. The offence u/s. 259 is
punishable with seven years. Accused have nearly undergone these
sentences of about more than seven years. Considering the same, I
sentence these accused as per final order.
109. As regards other accused viz. Riyaz Ahmed Mokashi,
Mallesh Ballappa Dhullanwar and Daniel Kanikraj. Riyaz Mokashi was
arrested in August 2003, Mallesh was arrested in September 2003 and
Daniel was arrested in June 2004 as in the case of other accused, they
were also released on bail in the year 20102011. The allegation is of
criminal conspiracy. It is seen that being conspiracy with accused no.1
in a course of their employment, such conspiracy had evolved.
Considering these nature of circumstances and fact that these accused
are in jail for about more than seven years, these accused are sentence
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for imprisonment already under gone. Hence, order accordingly.
110. As regards accused no.9Jadhav , as pointed out earlier, the
offence which is against the said accused is u/s. 418 r/w 13(1)(d) r/w
13(2) of P.C. Act and so also u/s. 221. Punishment u/s. 221 is for three
years, u/s. 418 is also three years, the punishment under the P.C. Act is
minimum one year to seven years. It was contended that he had
carried out investigation as per his ability and capability. I have
already discussed of the said officer in the course of my judgment and
it does not require any reiteration. Suffice to say that from the alleged
investigation which was carried out by accused no.9Parmar,
apparently, there is no investigation at all. One has to also consider the
effects of such acts on the society at large. It is generally the Judicial
system that stand blamed for acquittals and other system. One has to
really consider the fact of such investigation and such misconduct as
stated in my judgment seriously. The rights of the society at large are
also to be considered. It is in the hands of these police officers that the
security of the society has been kept. Such breach of trust or the say
must certainly causes much anguish. Considering this aspect as
regards accused Parmar apparently there is total lack of investigation.
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Such conduct coupled with the effect of the same, has resulted in Telgi
remaining caught free and creating a large empire. Considering these
circumstances and act of accused Parmar in Spl. Case No. 111/2004
stands out with those of other police officers. As regards accused no.9
Ganpat Jadhav in Special Case No. 10/2011, from the facts and
circumstances of his investigation, it appears that some investigation
was purported to be carried out. As stated above, to some extent, his
role is separate from that of accused Parmar and cannot said to be as
serious as that of accused Parmar. In such circumstances, interest of
justice would be served by sentencing him and payment of fine, as per
final order.
111. In the facts and circumstances stated above, I proceed to pass the
following order:
ORDER.
1. Accused no.1Abdul Karim Ladsaheb Telgi is convicted of
offence punishable u/s. 255, 256, 258, 259, 260, 262, 418, 420, 465,
466, 467, 468 and 471 of IPC r/w Sec. 120B of IPC.
2. Accused no.1Abdul Karim Ladsaheb Telgi is ordered to
suffer imprisonment of Life without remission for each offence
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punishable u/s 255, 467,471, Sec. 120B r/w 255, 256, 258, 259, 260,
262, 418, 420, 465, 466, 467, 468 and 471 of IPC .
3. Accused no.1Abdul Karim Ladsaheb Telgi is ordered to
suffer RI for Five years each for offence punishable u/s 256, 258, 259,
260, 420, 466, 468 of IPC on each count.
4. Accused no.1Abdul Karim Ladsaheb Telgi is ordered to
suffer RI for Two years for each offence punishable u/s 262, 418, 420,
465, 466, 467, 468 and 471 of IPC.
5. Accused no.2Shabir Ahmed Mustaq Ahmed Shaikh, A3
Mohd. Sayed Mohd. Yasin, A4Ramratan Sriniwas Soni, and A5
Sanjay Jaywant Gaikwad are convicted for offences punishable u/s.
259 and 120B r/w 255, 256, 258, 259, 260, 262, 418, 420, 465, 466,
467, 468 and 471 of IPC.
6. Accused no.2Shabir Ahmed Mustaq Ahmed Shaikh, A3
Mohd. Sayed Mohd. Yasin, A4Ramratan Sriniwas Soni, and A5
Sanjay Jaywant Gaikwad are acquitted for offences punishable u/s
255,256,259 of IPC .
7. Accused no.2Shabir Ahmed Mustaq Ahmed Shaikh, is also
acquitted for offences punishable u/s 258,420,466,467,468 of IPC .
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8. A4Ramratan Sriniwas Soni, and A7Sanjay Jaywant
Gaikwad are acquitted for offence punishable u/s 63 of the Bombay
Stamp Act .
9. Accused no.2Shabir Ahmed Mustaq Ahmed Shaikh, A3
Mohd. Sayed Mohd. Yasin, A4Ramratan Sriniwas Soni, and A5
Sanjay Jaywant Gaikwad each is sentenced to the period already
undergone for offences punishable u/s. 259 and 120B r/w 255, 256,
258, 259, 260, 262, 418, 420, 465, 466, 467, 468 and 471 of IPC and
further to pay fine of Rs.10,000/ each (Rs. Ten Thousand each). In
default, to undergo further imprisonment for Six months.
10. Accused no.6Riyaz Ahmed Mokashi, A7Mallesh Balappa
Dhulannavar and A8Daniel V. Kanikraj are convicted of offences
punishable u/s. 120B r/w 255, 256, 258, 259, 260, 262, 418, 420,
465, 466, 467, 468 and 471 of IPC r/w Sec. 120B of IPC.
11. Accused no.6Riyaz Ahmed Mokashi, A7Mallesh Balappa
Dhulannavar and A8Daniel V. Kanikraj are acquitted for offences
punishable u/s 255,256,259 of IPC
12. Accused no.6Riyaz Ahmed Mokashi, A7Mallesh Balappa
Dhulannavar and A8Daniel V. Kanikraj each are sentenced to the
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period already undergone for offences punishable u/s. 120B r/w 255,
256, 258, 259, 260, 262, 418, 420, 465, 466, 467, 468 and 471 of IPC.
13. Accused no.9Ganpat Waman Jadhav is convicted of offence
punishable 221,418 of IPC u/s. 13(1)(d) r/w 13(2) of P.C. Act and
255, 256, 258, 259, 260, 262, 418, 420, 465, 466, 467, 468 and 471 of
IPC.
14. Accused no.9Ganpat Waman Jadhav is to suffer RI for Five
years each for offence punishable u/s. 13(1)(d) r/w 13(2) of P.C. Act
and Sec. 120B of IPC r/w 255, 256, 258, 259, 260, 262, 418, 420,
465, 466, 467, 468 and 471 of IPC and to pay fine of Rs.15,000/ only
(Rs. Fifteen Thousand only). In default, to undergo further
imprisonment for six months.
15. Accused no.9Ganpat Waman Jadhav is to suffer RI for One
year each for offence punishable 221,418 of IPC.
16. Accused no.9Ganpat Waman Jadhav is acquitted for
offences punishable u/s. 218 and 109 r/w 255, 256, 258, 259, 260,
262,418,420, 465, 466, 467, 468 of IPC.
17. Accused no 10Enam Mukhtarali Pirbhai Choudhary is
acquitted for all the offences framed against him.
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18. Accused nos. 1Abdul Karim Ladsaheb Telgi, 2Shabbir
Ahmed Mustaq Ahmed Shaikh and 6Mallesh Balappa Dhulannavar are
in jail others are on bail their bail bond stands cancelled. They be taken
into custody.
19. Accused are entitled for set off as per law for the period of
their detention in this case.
20. The issue of Shri Mopalwar and his trial is subjudice before
the Hon'ble High Court of Bombay and hence property and documents
are to be preserved.
21. Sentences pertaining to accused nos. 2 to 9 shall run
concurrently.
22. Sessions Cases Nos. 753/2003, 757/2003, 756/2003,
849/2003, 458/2004 and 550/2006 stand disposed off accordingly in
terms of above order.
23. This order pertains to Crime Registered by CBI, Mumbai in
Crime No. RC9(E)/2004/EOU7.
24. A10Enam Mukhtarali Pirbhai Choudhary shall furnish PR
bond of Rs.15,000/ and surety of like amount as per Section 437A of
Cr.P.C.
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25. Accused to collect copy of judgment on 9.3.2012.
29th February, 2012. (A. SUBRAMANIAM) SPECIAL JUDGE,
GREATER MUMBAI.Dictated on: 14.2.12,15.2.12,17.2.1218.2.12, 23.2.12, 24.2.12 & 29.2.12.Transcribed on: As far as possible, daytoday basis.Signed on:C.C. issued on