In CRA-S-338-SB-2015- PUNJ HC- Mere exhibition of documents in absence of permission to lead secondary evidence is not due proof of original document, reaffirms P&H HC while considering case of bogus appointments in IT Dept, Chandigarh in early 1990s Justice Arvind Singh Sangwan [23-05-2022]

Read Order: Lakhvir Singh and Others v. Central Bureau of Investigation 

Monika Rahar

Chandigarh, May 30, 2022: While allowing certain appeals in a case involving bogus appointments in Income Tax Department, Chandigarh during 1990 to 1992, the Punjab and Haryana High Court has held that a party is required to lead cogent evidence either by primary evidence or by way of secondary evidence in order to prove a document.

The Court Bench of Justice Arvind Singh Sangwan has also held that the statement under Section 313 Cr.P.C. are not mere formality.

The prosecution case, as set up by the CBI is that the accused persons obtained appointments on the post of Stenographers, Upper Division Clerks, Lower Division Clerks and Inspectors in the Income Tax Department, North-West Region, Chandigarh during the period 1990 to 1992 on the basis of fake nomination letters purported to be issued by the Staff Selection Commission (SCC), New Delhi, though their names did not figure in the result.

During investigation, it was revealed that P.C. Chhatwal (Inspector Income Tax) and others obtained money from the accused persons for giving them the letters of appointment and, therefore, the offence under Sections 120-B, 420, 467, 468 and 471 of IPC read with Section 13(1)(d) and 13(2) of the Prevention of Corruption Act was committed by accused Suresh Chand Sharma and P.C. Chhatwal (since deceased) and Satnam Singh, along with the other accused. 

The charge-sheet was presented and the evidence of the prosecution was recorded. After the prosecution evidence was concluded and the statements of the witnesses were recorded under Section 313 Cr.P.C. All the accused denied the same with a common defence contending that the original record was withheld by the prosecution and no discrepancy was pointed out by any of the prosecution witnesses and there was no criminal conspiracy with the accused persons and they were falsely implicated as they were rightly selected on respective posts.

Some of the accused persons led defence evidence pleading innocence and accused Satnam Singh (UDC) raised an argument that on the similar set of allegations he was acquitted by the Special Judge, Patiala in 2011, while Suresh Chand Sharma (Tax Assistant) stated that he did not deal with the dossier/nomination letters and had no Knowledge as to who led the same. 

Some of the accused (present appellants) argued that the original record was withheld by the prosecution and the nomination forms along with the dossiers were received by the Income Tax Officers personally by name and the same were processed through many channels and after proper verification of the correctness of the nomination letters and dossiers, they were appointed. It was further argued that the appointment letters were sent by the Staff Selection Commission, wherein they appeared for written examination and cleared the same and were given appointment in due process.

The Trial Court the accused guilty of committing the offence under Sections 120-B, 420 and 470 IPC, though acquitted all of them under Sections 467 and 468 IPC and sentenced them to undergo imprisonment for a period of two years for the substantive sentence. 

The Senior counsel for the appellants on merit argued that the trial Court, on same set of allegation, acquitted the accused persons under Sections 467 and 471 IPC by observing that the forgery of the documents was done by unknown persons of SCC as well as the Income Tax Department in conspiracy with the accused, who faced the trial. The Counsel further contended that in the investigation conducted by the CBI nothing came forth regarding the identity of those unknown persons in whose conspiracy the appellants forged the documents and therefore, in the absence of any accused brought to fore or in the absence of accused having faced the trial for conspiracy with the appellants, the charged under Section 120-B IPC was not at all made out as the appellants was convicted only on the basis of presumption that they conspired with unknown persons of Income Tax Department and Staff Selection Commission.

The Senior Counsel also submitted that once part of the evidence led by the prosecution was disbelieved by the trial Court while acquitting the accused persons under Sections 467 and 468, there was no occasion to hold them guilty under Sections 120-B, 420 and 471 IPC.

It was next argued that when there was no evidence regarding the forgery or fabrication of the nomination letters as per own finding recorded by the trial Court, though the case of the prosecution at the very inception was that the same was done in conspiracy with Satnam Singh, UDC, P.S. Chhatwal, ITO and Suresh Chand Sharma, Tax Assistant, who were posted in the Confidential Branch in the office of Chief Commissioner, Income Tax, Patiala, having been exonerated by the trial Court, the entire prosecution case fell flat as the very originators of the crime was acquitted. 

The ground argued by the Counsel was that all the documents produced before the Trial Court by the prosecution were photocopies and not originals, therefore, they could not be termed even the secondary evidence in terms of Section 65 of the Evidence Act at it was not the case of the prosecution that a proper procedure was adopted to lead secondary evidence to prove the documents. The Counsel added the examination of the photocopies by the handwriting expert was against the sell settled principle of law that the photocopies cannot be compared. 

It was lastly argued that all these points were duly considered by the co-ordinate Bench while deciding the three appeals in which on the same set of evidence, the accused were acquitted vide judgment in 2016. 

After considering the case, the Court was of the considered view that there was substance in the case of the appellants. The first ground for this opinion of the Court was that the CBI filed two challans for the same offence against two sets of accused persons, having P.C. Chhatwal, Satnam Singh and Suresh Chand Sharma, as the common accused. Further, the Court noted that the trial Court in 2015, acquitted the accused persons other than the three employees the SCC and IT Department, whereas in the three appeals by the similarly situated appellants (given similar appointments) were allowed holding that the trial Court recorded a finding that the conspiracy was hatched in secrecy and a semblance of cogent and reliable evidence to prove the guilt of the appellant was missing. 

It was also observed that since the trial Court already acquitted the accused under Section 468 IPC, it is difficult to uphold the judgment of the trial Court that the charge under Section 471 IPC is proved. The Court further made reference to the Coordinate Bench of this High Court observing that the conviction recorded by the trial Court was only based on circumstantial evidence having missing chain as the trial Court recorded a finding that there were some unknown persons in whose conspiracy the documents were forged and, therefore, in the absence of the identification of the said unknown persons, the circumstantial evidence is not proved.

The Court further noted that the trial Court recorded a finding that some unknown persons of Income Tax Department and SCC in conspiracy with the appellant prepared those dossiers/appointment letters, though there was no direct evidence as to who committed such offence. It was also noted that the trial Court acquitted the two accused, namely, Suresh Chand Sharma and Satnam Singh (P.C. Chhatwal has died) as they were acquitted in the earlier trial as well of the offences of similar evidence led by the Central Bureau of Investigation.

Additionally, the Court held that it is well settled principle of law that to prove the document a party is required to lead cogent evidence either by primary evidence or by way of secondary evidence and that the mere Exhibition of the documents in the absence of any permission to lead secondary evidence was not due proof of the original document. The Court added that it was the prosecution which was to prove the case beyond reasonable doubt and, therefore, exhibiting the photostat copies of the copies of the documents was not in consistent with the provision of Section 65 of the Indian Evidence Act when no permission by the Court for leading secondary evidence under Section 63 of the Evidence Act was granted. 

Also with regard to compliance of the electronic record, the Court held that the requirement laid down under Section 65-A and 65-B of the Evidence Act were not complied with and thus no reliance could be placed on the documents produced by the prosecution. 

Next, Justice Sangwan was of the view that the handwriting/signatures on the disputed documents were not proved by the Expert evidence as per Section 45 and 47 of the Indian Evidence Act. On the aspect of criminal conspiracy, the Court held that once the trial Court recorded a finding that the conspiracy was with the unknown employees of the two departments, the said chain of circumstances was missing.  

Even otherwise, it was observed that in the statement under Section 313 Cr.P.C., the incriminating evidence was put to the accused, and that in the absence of the original documents, it cannot be said that the material evidence which was essential to be put to the accused to call their explanation so as to enable them to lead their defence evidence was not proved.

Therefore, in view of the settled law that the statement under Section 313 Cr.P.,C. are not mere formality, the Court held that the conviction of the appellants cannot be upheld. Accordingly, both the above mentioned appeals were allowed; the impugned judgment of conviction and order of sentence are set aside and appellants were acquitted.