Bhadresh Ramanlal Shah vs State of Gujarat and Another

R.P. Dholakia, J.—The petitioner-original accused No. 1, by way of present Revision Application u/s 397 read with Section 401 of the Code of Criminal Procedure, seeks to challenge the Judgment and Order dated 08.08.2008 passed by the Learned Special Judge, C.B.I. No. 3, Ahmedabad in Criminal Appeal No. 2 of 2007 and also seeks to challenge the Order dated 27.09.2007 passed by the Learned Additional Chief Judicial Magistrate, Special C.B.I. Court No. 1, Ahmedabad in Sessions Case No. 40 of 2004.

Short facts leading to the filing of the present Revision Application are that case being RC 97 of 1997 came to be registered with Kalol Police Station, District : Mehsana on 17.06.1997 against two accused viz., Kamlesh Shah and Bhadresh Shah, on the basis of complaint filed by Shri K.M. Pandit, Chief Inspector of Stamps, Gujarat State, Ahmedabad. Thereafter, pursuant to the consent of the Government of Gujarat and Government of India, it was transferred to CBI, SIU(XVII), SPE, New Delhi, where it was registered as RC 9/97-SIU(XVII) on 30.12.1997. After registration of the offence, investigation was entrusted to Shri V.K. Shukla, Inspector, C.B.I. by the Superintendent of Police, C.B.I., New Delhi.

After completion of investigation, the Investigating Officer, having found sufficient evidence against the petitioner-accused and one Rajeshwariben, sister-in-law (bhabhi), submitted chargesheet on 31.01.2000 in the Court of Learned Judicial Magistrate, First Class, Kalol, where it was numbered as Criminal Case No. 619/2002. However, pursuant to the order of the Learned District Judge, Mehsana, the said case was transferred to the Court of Learned Additional Chief Metropolitan Magistrate, & Special Judge, C.B.I. Court No. 1, Mehsana, wherein it was numbered as Special Case No. 40 of 2004. Thereafter, the Court below framed charge against the accused at Exh.16. The accused, however, pleaded not guilt and claimed to be tried. During course of trial, after examination of some of the witnesses, the original accused No. 2 was proclaimed absconder and her case was separated by the Trial Court.

At the end of trial, the Learned Additional Chief Judicial Magistrate, Special C.B.I. Court No. 1, Ahmedabad vide Judgment and Order dated 27.09.2007 was pleased to convict the petitioner-accused for the offences under Sections 258, 259, 420 read with Section 120B of the Indian Penal Code and sentenced him to undergo two years simple imprisonment and fine of Rs. 500/-, in default, to undergo fifteen days simple imprisonment for each Section.

Against the aforesaid Judgment and Order of conviction, the petitioner-accused has preferred Criminal Appeal No. 2 of 2007 before the Learned Special Judge, Ahmedabad. The Learned Special Judge, C.B.I. No. 3, Ahmedabad vide order dated 08.08.2008 was pleased to dismiss the Criminal Appeal and confirm the Judgment and Order of conviction, which gave rise to file present Revision Application.

I have heard learned Counsel for the petitioner-accused, Mr. A.M. Dagli and the learned A.P.P., Ms. C.M. Shah for the respondent No. 1-State at length.

Arguments advanced by the learned Counsel for the petitioner-accused, Mr. A.M. Dagli have been practically argued by the counter part in Criminal Appeal No. 2 of 2007. It has been mainly argued by Mr. Dagli that there is no evidence worth the name, which connect the accused with the crime in question and the prosecution has failed to prove the conspiracy and knowledge both and in absence of any direct or indirect evidence against the present petitioner-accused, the Court below ought to have acquitted him of the charges leveled against him. It is also argued that though there is no direct or indirect evidence on record, the Court below has convicted the petitioner-accused on the basis of conjuncture and surmises. He has also taken me through the oral evidence of prime witnesses i.e. the P.W. No. 2 viz., Atulbhai M. Chaudhari and P.W. No. 4 viz., Anvarbhai A. Ajmeri and argued that if we see whole evidence of above referred two witnesses in toto then their evidence are not reliable and not trustworthy and in absence of any other evidence on record, the petitioner-accused should be acquitted. It is argued that it is true that original accused No. 2 viz., Rajeshwariben is happened to be sister-in-law of the petitioner-accused and, hence, it could not be inferred that the petitioner-accused had knowledge of procedure to be followed while selling or purchasing the stamp paper as there are no evidence on record and the prosecution has failed to prove the guilt against the petitioner-accused beyond reasonable doubt and, hence, the accused deserves to be granted benefit. It is alternatively argued that it is a case, wherein the benefit under the provisions of Probation of Offenders Act is also required to be given to the petitioner-accused looking to the length of the sentence and number of offence.

Learned A.P.P., Ms. Shah submitted that the prosecution has examined all the concerned witnesses, who have fully supported the case of the prosecution. It is submitted that there is no reason to disbelieve those witnesses, who are not chance witnesses or concocted, but their presence is natural one and others are the witnesses, who have come as witnesses in this case while discharging their duties as Officers. She has also taken me through the documents, Exh.90 & 91 and argued that the original accused No. 2 was the sister-in-law of the petitioner-accused and as per the opinion of the DEQD Exh.90, the handwritings on the questioned document i.e. stamp paper used for executing the sale deed, Exh.65 were of the original accused No. 2 and the said stamp paper has been given by the original accused No. 1 to the witness, Shri Atulbhai Chaudhari, which was subsequently found to be forged one by the India Security Press, Nasik. It is also argued by her that there are evidence on record which connect the accused with the crime in question along with other strong circumstantial evidence, which prove that the original accused No. 2 was the stamp vendor having licence. Over and above, it has been proved by way of handwriting expert that the stamp paper bears the handwriting of the original accused No. 2, which has been given by the accused No. 1 to the witness, Atulbhai Chaudhari and for that also, there is evidence, which supports the say of Atulbhai Chaudhari. Over and above, the witness, Anvarbhai A. Ajmeri also supports the say of the prosecution. According to her, once it has been established that original accused No. 2 viz., Rajeshwariben Shah is the stamp vendor and stamp paper in question (fake) bears her handwriting, which has been given to the witness, Atulbhai by Mr. Bhadresh. So, link between them has been established beyond reasonable doubt. It is also argued that it is a serious offence against the economy of the State as well as Central and the present petitioner-accused is a habitual offender. In these circumstances, the benefit under the provisions of Probation of Offenders Act is not required to be given to the petitioner-accused.

I have given thoughtful consideration to the arguments advanced by the learned Counsel for the respective parties along with the documentary evidence shown to me by the learned Counsel for the respective parties and also gone through two concurrent judgments of the Courts below. In short, this is a Revision Application, wherein the scope of the Court is limited one and, therefore, keeping in mind the above scope and also the fact that this Revision is against two concurrent judgment, I have evaluated the evidence on record.

In this case, the prosecution has in all examined seven witnesses. Prosecution Witness No. 1 viz., Kantilal M. Pandit was the Chief Inspector of Stamps, Ahmedabad, who had lodged the complaint before the Police Inspector, Kalol with regard to the counterfeit stamp papers having been used for the execution of sale deed registered at Sr. No. 1062 in the Office of the Sub-Registrar, Kalol on 30.04.1997 and said complaint has been proved by the prosecution through him at Exh.47. It is also established from his evidence that during the course of investigation, he found that there was stamp of Sanadi of Viramgam Court on the said stamp paper, therefore, as per his evidence, he went to Viramgam and investigated the matter in toto and found that there was no stamp vendor at Viramgam, who had such a stamp. He has also obtained the opinion of India Security Press, Nasik and as the said stamp found to be forged one, complaint came to be lodged.

Another star witness is Atulbhai M. Chaudhari, who has been examined as Prosecution Witness No. 2 at Exh.64. In his evidence, he has categorically deposed that he had the business of transportation and office at Palak Complex, Nr.Usmanpura, Ahmedabad, in which, the original accused No. 1 also had the STD-PCO office and since he wanted to purchase land at Village : Nasmed, Taluka : Kalol from one Ramabhai Mafatbhai Rabari, he asked the original accused No. 1 to get stamp paper of Rs. 5,000/- for the execution of the sale deed and had also given cash of Rs. 5,000/-. He further deposed that the original accused No. 1 gave stamp paper, which was used by him for the execution of the sale deed along with four stamp papers of Rs. 1,000/- each, which were purchased from one advocate, Shri Narendrabhai. He further deposed that sale deed has been registered in the Office of the Sub-Registrar, Kalol, which was on record at Exh.65. He was throughly cross-examined by the other side at length and only thing which is coming out from his evidence is that he has not made entry of Rs. 5,000/- in the books of account regarding the payment of Rs. 5,000/- for the purchase of stamp paper. Certain questions have been asked to him regarding the procedure to be followed while purchasing the stamp.

In support of the aforesaid witness, the prosecution has examined Prosecution Witness No. 4 viz., Atulbhai M. Chaudhari at Exh.83. He has categorically deposed that at the relevant time, he was rendering his service with Atulbhai M. Chaudhari, who was paying him lump sum amount per month. He deposed that Atulbhai is having his office at Palak Complex and he knew Shri Bhadreshbhai, who had xerox shop in the same complex. He further deposed that Atulbhai was told by Bhadreshbhai that he would get the stamp paper from his relatives and, therefore, Atulbhai had given Rs. 5,000/- to Bhadreshbhai in his presence, in turn, Bhadreshbhai had brought one stamp paper and given to Atulbhai. He identified the stamp paper contained in sale deed, Exh.65. He was thoroughly cross-examined by the other side, but nothing contrary has come on record which shaken his evidence as well as evidence of Atulbhai.

On the contrary, from his evidence, it is established that the original accused No. 1 had given stamp paper to Atulbhai in his presence and Atulbhai had paid Rs. 5,000/- to him. It is also established from his evidence that Atulbhai was sitting in Palak Chamber and owner of the said shop is one of his relatives.

The prosecution has examined Prosecution Witness No. 3 viz., Bharatbhai C. Brahmbhatt at Exh.82. He was the Sub-Registrar of Kalol at the relevant point of time, who had registered the document, Exh.65. He deposed that he had followed the procedure at the time of registration of the document

The prosecution has examined Prosecution Witness No. 5 viz., Sanjay Champaklal Shah at Exh.84. This witness was working as the Superintendent in the Office of the Superintendent of Stamps, Gandhinagar, who was called by the C.B.I. Officer at Circuit House, Gandhinagar to remain as panch, at that time, one Hirabhai Solanki was also accompanying him. He deposed that one Rajeshwariben Shah was present at Circuit House, who was asked to write on about 15 sheets and after obtaining the specimen handwritings of said Rajeshwariben on 15 sheets by the C.B.I. Officer, his signatures were obtained on each of the sheets as Panch Witness. He deposed that again on 29.08.1999, he was called, at that time, the handwritings of said Rajeshwariben were obtained on 6 sheets and his signatures were obtained on each of the sheets as Panch Witness. He deposed that the handwritings of said Rajeshwariben marked as S-1 to S-21 have been exhibited as Exh.85 by the Trial Court.

The prosecution has examined Prosecution Witness No. 6 viz., Madhusudanlal K. Sharma at Exh.88, who was discharging his duty as Deputy Government Examiner of Questioned Documents at the relevant point of time. He deposed inter alia that he had received the questioned document being the Document No. 1062 containing questioned handwritings encircled and marked as Q-1 and the specimen handwritings/signatures of Smt. Rajeshwari Anjan Shan encircled and marked as S-1 to S-21, which were examined by him and it was found that person, who wrote blue enclosed writings stamped and marked as S-1 to S-21 also wrote the red enclosed writings similarly stamped and marked Q-1. This witness was not examined by the other side. His opinion was produced at Exh.90 and his evidence is remained unchallenged.

The prosecution has examined Prosecution Witness No. 7 viz., Vijaykumar C. Shukla, Exh.103. He deposed that RC 9/1997 was registered at C.B.I., New Delhi on the basis of RC 97 of 1997 registered at Kalol Police Station and transferred to C.B.I., which is proved and exhibited at Exh.104. This witness further deposed that the investigation was carried out by him by examining witnesses and collecting sufficient documents evidence against both the accused and upon conclusion, chargesheet came to be filed before the Court against the present petitioner-accused and one Rajeshwariben. He deposed about the opinion of the India Security Press, Nasik (Exh.108), who had opined that the stamp paper of Rs. 5,000/- used in execution of the sale deed No. 1062 was forged one.

From the above referred evidence, the prosecution has able to prove that one Rajeshwariben Shah was having licence for selling the stamp paper. In short, she was stamp vendor. It is also established that she was the sister-in-law (bhabhi) of the present petitioner-accused viz., Bhadreshbhai. It is also established that the present petitioner-accused is having his xerox shop and STO-PSO in Palak Complex, wherein the Prosecution Witness No. 2 viz., Atulbhai is also having his office. It is true that rent note or ownership had not been produced, however, if we read together the evidence of Atulbhai Chaudhari and Anvarbhai Ajmeri, it is proved that Atulbhai is not the owner or the tenant of the said office and when he was asked as to whether the shop in which he is sitting is of the ownership or rented premises and in reply, he stated ''no''. It is also established that stamp paper in question was having the handwriting, which has been sent for the opinion of the handwriting expert along with specimen handwriting of Smt. Rajeshwariben and ultimately, opinion has been given by the expert that the handwritings written on the stamp papers are the handwritings of a person, who has written and signed the specimen document. In short, there are evidence on record, which prove that it was the handwriting of Smt. Rajeshwariben upon the stamp paper in question. There is direct evidence on record, which shows that Rs. 5,000/- of the stamp paper has been given to Bhadreshbhai by Atulbhai after taking stamp paper of Rs. 5,000/- and link between Bhadreshbhai and Rajeshwariben has been established beyond reasonable doubt by way of two things firstly there are relationship between them, which is nearest relation and secondly the stamp paper bears handwriting of Rajeshwariben, which came into the custody of Atulbhai from Bhadreshbhai. So, link is also established that the document in question came from Rajeshwariben to Bhadreshbhai and from Bhadreshbhai to Atulbhai and Atulbhai has also got support from the oral evidence of Anvarbhai Ajmeri. So, the oral as well as documentary evidence prove that the document in question was in custody of first Rajeshwariben and, thereafter, in the custody of Bhadreshbhai and Bhadreshbhai has given to Atulbhai after taking Rs. 5,000/- and ultimately, the prosecution has proved beyond reasonable doubt that it was the case of fake stamp, which has been given by Bhadreshbhai.

As far as the knowledge is concerned, it has been established beyond reasonable doubt that they are co-conspirator and they had knowledge, therefore, no procedure has been followed while handing over the stamp paper to Atulbhai and for that, the benefit should not be given to the petitioner-accused of his own wrong. Thus, in short, the prosecution has able to prove the guilt against the accused beyond reasonable doubt on the basis of oral as well as documentary evidence and it is the finding on fact of two Courts, which does not require to be interfered and, therefore, the Revision deserves to be dismissed.

As far as the request made by the learned Counsel for the petitioner-accused giving benefit under the provisions of the Probation of Offenders ` is concerned, same may not be available to the petitioner-accused because said request was also made by the petitioner-accused before both the Courts below, which has been turn down after giving reasoned order. I also share the same opinion that it is a serious offence, wherein the petitioner-accused has involved himself and he is a habitual offender and the offnece is against the economy of the State as well as Central.

In the result, this Criminal Revision Application is dismissed. Rule is discharged. The petitioner-accused is on bail and, hence, his bail bond stands cancelled. He is, therefore, directed to surrender before the jail authorities within one month from today.