Karnataka High Court
Mr Syed Akram vs The Union Of India on 19 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO.249 OF 2015
C/W
CRIMINAL REVISION PETITION NO.231 OF 2015
IN CRL.RP.NO.249/2015:
BETWEEN:
MR. SYED AKRAM,
AGED ABOUT 40 YEARS,
S/O S. HAMEED,
R/AT: NO.8, 2ND CROSS,
BEHIND URDU SCHOOL,
DR. TCM ROYAN ROAD,
BENGALURU-560 053
....PETITIONER
(BY SRI. SATYANARAYANA CHALKE .S, ADVOCATE)
AND:
THE UNION OF INDIA,
REPRESENTED BY THE OFFICER IN CHARGE,
SPECIAL CRIME BRANCH,
CENTRAL BUREAU OF INVESTIGATION,
A'WING, 3RD FLOOR,
RAJAJI BHAVAN, BESANT NAGAR,
CHENNAI-600 900.
...RESPONDENT
(BY SRI. P. PRASANNA KUMAR, SPL.PP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 AND 401 CR.P.C, PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION DATED 28.6.2014 AND SENTENCE
DATED 30.6.2014 PASSED BY THE XVII ADDL. A.C.M.M. (SPL.
2
COURT FOR CBI CASES), BENGALURU IN C.C.NO.33938/2011
CONVICTING THE PETITIONER FOR THE OFFENCES UNDER
SECTION 419, 420, 468, 471 OF IPC AND UNDER SECTION
12(1)(b) OF THE PASSPORTS ACT, 1967 AND SET ASIDE THE
ORDER DATED 25.2.2015 PASSED BY THE XXI ADDL. CITY
CIVIL AND S.J. AND PRL. SPL. JUDGE FOR CBI CASES,
BENGALURU IN CRL.A.NO.775/2014 AND ACQUIT THE
PETITIONER.
IN CRL.RP.NO.231/2015:
BETWEEN:
SRI. SYEED IQBAL SANULLA,
S/O SANAULLA,
AGED ABOUT 32 YEARS,
R/AT NO.641, NEAR KGIS OFFICE,
MADRAS, BENGALURU ROAD,
KOLARA-563 101
....PETITIONER
(BY SRI. SHARAN N. MAJAGE AND
SRI. VENKATARAMAN NAIK, ADVOCATES)
AND:
STATE BY CENTRAL BUREAU
OF INVESTIGATION, SCB/CHENNAI,
REPRESENTED BY ITS
BRANCH HEAD-600 001.
...RESPONDENT
(BY SRI. P. PRASANNA KUMAR, SPL.PP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 AND 401 CR.P.C, PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION DATED 28.6.2014 IN
C.C.NO.33938/2011 ON THE FILE OF THE XVII-ACMM
(SPL.COURT OF CBI CASES) AT BENGALURU, FOR THE
OFFENCE P/UNDER SECTION 420, 468, 471 OF IPC AND ALSO
ORDER CONFIRMED BY THE COURT OF THE XXI-ADDL. CITY
CIVIL AND SESSIONS JUDGE AND PRL. SPL. JUDGE FOR CBI
CASES AT BENGALURU CITY ON 25.02.2015 IN
CRL.A.NO.774/2014 AND ACQUIT THE APPELLANT OF THE
OFFENCE CHARGED AGAINST HIM.
3
THESE CRIMINAL REVISION PETITIONS HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 31.10.2023, COMING
ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
These revision petitions are filed by the accused
challenging the judgment of conviction passed by XVII
Additional Chief Metropolitan Magistrate, (Special Court for
CBI cases) in C.C.No.33938/2011, which was confirmed in
Crl.A.No.775/2014 and Crl.A.No.774/20144.
2. The brief factual matrix leading to the case are
that on 22.01.2009 the Inspector of Sampangihalli Police
station on the basis credible information regarding some
persons involving in creation and fabrication of forged
documents for purpose of human trafficking and they will
be approaching IBM Manyata Tech Park Bangalore for
preparation of documents in the name of fictitious person,
he formed a raiding team and secured the panchas and
went to the place at 4.00 p.m. There they saw 4 persons
alighting from red color maruthi zen car. They have also
noticed another person sitting inside the car who got down
and told three other persons to go inside IBM and enquire
about persons who are in need of passports and visas.
Then the raiding party apprehended suspicion, they
surrounded the car and they have recovered passports,
visa applications etc.
3. That the accused No.1 submitted application
forms to four different persons before Visa Officer,
Consulate General of Japan, Chennai. During 2007,
Mohammed Younus was searching for a job in foreign
country and his father Abdul Majid requested accused No.1
to send his son to any foreign country. Thereafter, as per
advise of accused No.1, Mohammed Younus had applied
for tourist visa to visit Japan and he handed over his
passport to accused No.1 for production of the same
before consulate of Japan, but his application came to be
rejected. Again, during the month of January 2009,
accused No.1 had submitted visa application in the name
of Mohammed Younus for business meeting Visa to Japan
along with a letter of appointment dated 01.04.2008
issued by Overseasjobz Incorporation and a signature of
Mohammed Younus was obtained on blank visa application
form. However, Mohammed Younus never served in
Overseasjobz Incorporation, Bangalore at any point of
time and no such company was found existing in
Bangalore. It is further asserted that accused No.1 had
submitted a business meeting visa with Japanese
Consulate, Chennai in January 2009 in the name of Abdul
Rahim Sheikh wherein, he was shown as Business
Development Manager in Overseasjobz Incorporation,
Bengaluru. The letter of appointment was signed by
accused No.1 himself. A firm by name
overseasjobz.com.incorporation was registered in Toronto
in Canada and accused No.1 and Kamothi Lehy were
shown to be the directors of the firm. Accused No.1 had
submitted for tourist visa in the name of Mohamed Younus
and his wife Aiysha Kausar for Japan by blocking air tickets
and hotel rooms, which was done in order to erase doubt
in the minds of Consulate Officer.
4. Apart from that, accused No.1 has also
submitted visa application during August 2007 for Syed
Younus and Aiysha Kausar and the visa for Syed Younus
was rejected and again in January 2009, the applications
were submitted by the accused for the said persons
wherein, Syed Younus was shown as employee of M/s
Ming International, Bangalore and both applications were
rejected. It is alleged that accused No.1 mentioned wrong
fact about Syed Younus that he is an employee of M/s
Ming International, wherein he never worked and no such
company existed in Bangalore.
5. The accused No.2 had obtained passport
bearing No.E1703378 dated 29.04.2002 and again on
23.09.2008, he obtained another booklet vide passport
No.Z1864256 dated 23.09.2008 from RPO, Bangalore
including his wife's name by canceling earlier passport.
However, he was found in possession of another passport
bearing No.A9437801 in the name of Manjunath wherein,
the photo of accused No.2 was pasted. It is alleged that he
has obtained the passport in the name of Manjunath by
showing the address as 1645, 17th main 1st stage 2nd
block, Bangalore -5600050, but his address was No.8, 2nd
Cross TCM, Royan Road, behind Urdu School, Chickpet,
Bangalore. It is further asserted that accused No.2 at the
time of submitting application before Regional Passport
Officer, Bangalore in the fictitious name of Manjunath,
enclosed letter head of company viz., G.P. Electronics, 8/8
J.C.Road, Bengaluru stating that he is working as an
Accountant, but no such firm was found existing. Apart
from that, it is also alleged that accused No.2 opened an
account with UTI Bank, Bangalore by showing his name as
Manjunath and he maintained this account in the fictitious
name of Manjunath and fictitious address. He has also
maintained another account in his own name in SBI
Chamrajpet, Bangalore branch wherein, the photograph of
accused No.2 was found and the photograph pasted in the
account opening form in UTI Bank was that of accused
No.2.
6. It is also alleged that in June 2007, one Syed
Tajamul Ahmed resident of Chamarajpet, Bangalore
approached accused No.2 for arranging employment in
Japan and assuring the said Syed Tajamul Ahmed, he
received his passport and a sum of Rs.3 Lakhs for
arranging visa etc., but when Syed Tajamul Ahmed
traveled Japan in August 2007, he found that he did not
have any employment and he was cheated without any job
by accused No.2. For obtaining the visa in the name of
Syed Tajamul Ahmed, accused has shown him as a Sales
Manager in S.R.Jewellery, but that was also found to be
false. Accordingly, one C.C.Shivakumar has also
approached accused No.2 for Tatkal passport and visa to
Singapore, Malaysia and Senegal and he received a sum of
Rs.5,000/- from him by obtaining signatures on blank visa
applications along with photographs. The accused No.2
has also enclosed a letter of M/s Remix Constructions Pvt.
Ltd., Bangalore for visa application of C.C.Shivakumar, but
that was found to be false and fabricated document. While
applying visa to visit Senegal, accused No.2 showed
himself as General Manager of M/s Remix Constructions
Pvt. Ltd., while, C.C.Shivakumar was shown as Technical
Consultant, but that statement was found to be false.
7. The Investigating Officer after investigation,
submitted charge sheet against accused Nos.1 and 2 for
the offences punishable under Section 120B, 420, 419,
465, 468 and 471 of Indian Penal Code, 1860 and Section
12(1)(b) of Passports Act, 1967. The accused were
arrested and were produced before the learned Magistrate
and subsequently, they were enlarged on bail. The
prosecution papers were furnished to the accused as
contemplated under Section 207 of Code of Criminal
Procedure (hereinafter referred to as 'Cr.P.C' for short).
The charge for the above said Sections is framed against
both the accused and they pleaded not guilty and claimed
to be tired.
8. To prove the guilt of the accused, prosecution
has examined in all 34 witnesses at PW1 to PW34 and
placed reliance on 174 documents marked at Ex.P1 to
P174. During the cross-examination, Ex.D1 to D3 were
also got marked by the defence counsel. M.O.1 to 3 were
also marked.
9. After conclusion of the evidence of the
prosecution, the statement of accused under Section 313
of Cr.P.C. is recorded to enable the accused to explain the
incriminating evidence appearing against them in the case
of the prosecution. The case of the accused is of total
denial and they did not choose to lead any oral and
documentary evidence in support of their defence.
10. After hearing the arguments and after
appreciating the oral and documentary evidence, the
learned Magistrate has convicted accused No.1 for the
offences punishable under Section 420, 468 and 471 of
Indian Penal Code, 1860 by imposing sentence of
imprisonment as well as fine. The accused No.2 was
convicted for the offences punishable under Section 419,
420, 468, 471 of Indian Penal Code, 1860 and Section
12(1)(b) of Passport Act, 1967 by imposing sentence of
imprisonment as well as fine. Being aggrieved by this
judgment of conviction and order of sentence, the accused
No.1 filed Crl.A.No.774/2014 while, accused No.2 filed
Crl.A.No.775/2014 on the file of XXI Additional City Civil
and Sessions Judge / Principal Sessions Judge for CBI
cases, Bangalore city.
11. The learned Special Judge after hearing the
arguments and after re-appreciating the oral and
documentary evidence dismissed both the appeals by
confirming the judgment of conviction and order of
sentence passed by the learned Magistrate. Against these
concurrent findings, these revision petitions are filed.
12. The learned counsels for the revision petitioners
would contend that PW9 - SHO on credible information is
said to have raided the spot and he has done major
investigation, but later on, the investigation was
transferred to CBI. He would contend that original
passports and original documents were not produced. He
would also contend that to ascertain fake address, the
landlords were not examined and regarding transactions,
there is no evidence and so called Shivakumar did not
support the case of the prosecution. The records disclose
that as on the date of mahazar, accused No.2 was in
custody and mahazar witnesses have turned hostile. It is
also asserted that charges against accused No.1 and
accused No.2 are individual, but the joint trial was held,
which has vitiated the trial. It is also asserted that under
Section 15 of the Passport Act, 1967, sanction was not
obtained and sanction was only as against accused No.2
but not in respect of accused No.1. It is further asserted
that the statement under Section 313 of Cr.P.C. was
recorded jointly and no specific questions were put to
respective accused and forged documents were not at all
exhibited. It is also contended that no person from
passport office was examined and the so called Abdul
Rehman was not cited as a witness and seizure itself is not
proved and there is no charge of conspiracy. He would also
assert that investigation can be continued only after
registration and there is no evidence to show that accused
traveled and there is serious doubt regarding mahazar and
recovery. It is also submitted that in respect of
identification before the court, the witnesses have not
properly identified and hence, it is asserted that both the
courts below have failed to appreciate any of these aspects
in its proper perspective and sought for allowing the
revisions by setting aside the impugned judgment of
conviction by acquitting the accused.
13. Per contra, the learned counsel for the
respondent / CBI would support the judgment of
conviction and order of sentence passed by both the courts
below. He would contend that Ex.P36 and Ex.P58 are
passports and there is no specific defence raised by the
accused and both the accused were apprehended
simultaneously and there is no evidence to show that they
are prejudiced by joint trial and no objection was raised at
the initial stage for joint trial. Hence, he would contend
that the grounds now urged cannot be considered as the
scope of revision is limited. Hence, he would seek for
rejection of the revision petitions.
14. Having heard the arguments and perusing the
records, now the following point would arise for my
consideration:
(i) Whether the judgment of conviction
passed by the learned Magistrate and
confirmed by the learned Sessions
Judge are perverse, arbitrary and
erroneous so as to call for any
interference by this court?
15. At the first instance, let us consider the
argument regarding sanction. The contention of the
revision petitioners is that there is no sanction obtained as
against accused No.1 for prosecuting under the provisions
of Passport Act, 1967 and sanction is only as against
accused No.2 and under Section 15 of the Passport Act,
1967, sanction is mandatory. However, the records
disclose that accused No.1 was not prosecuted under the
provisions of Passport Act, 1967 and he was only
prosecuted for the offences punishable under Section 420,
468 and 471 of Indian Penal Code, 1860. When accused
No.1 was prosecuted for the offences punishable under the
provisions of IPC only, question of obtaining sanction does
not arise at all.
16. However, accused No.2 was prosecuted for the
offences punishable under Section 419, 420, 468, 471 and
Section 12(1)(b) of Passport Act, 1967, 1967. Hence, it is
evident that only the provisions of Passport Act, 1967 were
incorporated as against accused No.2 and sanction was
obtained as against accused No.2. There is no serious
dispute regarding sanction and hence, the said ground
urged does not have any relevancy.
17. The allegations against the accused are that
they forged and fabricated documents such as passports,
Visas for the purpose of human trafficking in order to have
an unlawful gain. According to the prosecution, on
22.01.2009 Police Inspector, Sampangihalli Police Station
arrested accused No.1 along with other accused and
recovered certain documents.
18. PW1 to PW3 are police witnesses and they
deposed regarding they accompanying PW9 on
22.01.2009 for raiding Manyata Tech Park, IBM at 4.00 pm
and subsequently, apprehending accused No.1 and seizure
of relevant documents from his custody. PW9 has led the
raiding party and the evidence of PW1 to PW3 is in
consonance with the evidence of PW9. The evidence of
these witnesses also disclose that the mahazar was also
drawn as per Ex.P1 at the spot and subsequently, as per
voluntary statement of accused No.1 as per Ex.P38 again
accused No.1 led them to his house wherein 29 documents
were seized under mahazar Ex.P40. It is also evident from
the records that subsequently the office of the Consulate
General of Japan, Chennai produced the documents
through HC No.4400 and the same were seized by PW9
under Ex.P59.
19. The main contention of the defence is that all
the seizure panchas have turned hostile. The seizure
panchas were examined as PW22 to PW27 and PW32 and
they have turned hostile. However, they admitted their
signatures. Though they claimed that their signatures were
obtained in Police Station and they never accompanied the
raid, the said contention cannot be accepted since, they
are not the laymen and educated persons having
knowledge. It is not their case that their signature was
obtained by any threat or coercion by the police. Hence, it
is prima facie evident that the seizure mahazar witnesses
have been won over by the accused, which has resulted in
their hostility, but mere hostility of these witnesses does
not amount that the prosecution has failed to prove the
seizure and the evidence of PW1 to PW3 coupled with PW9
establish this aspect. There is no hard and fast rule that
the evidence of the Investigating Officer or police officers
cannot be trusted and if it is beyond suspicion there is no
bar for accepting their evidence.
20. Apart from that PW4-Mohammed Younus, PW5
Abdul Majeed, PW6-Syed Younus and PW7-Aiysha Kausar
are material witnesses and they have supported the case
of the prosecution. PW4 and PW6 have been cheated by
the accused No.1 and their evidence clearly disclose that
accused No.1 obtained passport under the guise of
providing Visa and crated documents regarding the
witnesses working in Overseasjobz, but the evidence of
PW4 disclose that he never worked in Overseasjobz and no
such company existed and it clearly establish that Ex.P4
and Ex.15 are fabricated documents. The signature of
accused No.1 on Ex.P4 and Ex.P15 were marked as Q22
and Q21, which were sent to hand writing expert who was
examined as PW29 and his evidence disclose that the
specimen writing and signature of accused No.1 marked at
S1, S18 to S26 in Ex.P117 are that of accused No.1 and
they tally with Ex.P4, signature marked at Q22 and Ex.P15
signature marked at Q21. Hence, the evidence clearly
discloses that accused No.1 has forged the signature of
PW4. Further, this evidence is again corroborated by
evidence of PW8 whose evidence clearly disclose that
Overseasjobz Incorporation was not at all registered
company in Bangalore and same is certified as per Ex.P14.
As such, the evidence of PW4, PW8 coupled with evidence
of PW29, it is evident that accused No.1 has forged the
signature in Ex.P4 and Ex.P15 and tried to obtain Visa on
the basis of forged documents and this evidence is again
supported by the evidence of PW5 who is the father of
PW4.
21. PW6-Syed Younus is another witness who was
also cheated by accused No.1. His evidence discloses that
he has handed over his passport and passport of his wife
to accused to obtain tourist visa as per Ex.P6 and Ex.P7
and submitted an application Ex.P8. It is evident that
accused No.1 had submitted Ex.P9 letter said to have been
issued by Ming International and Ex.P10 is the
confirmation letter, while Ex.P11 is the letter of
appointment of PW6 said to have been issued by M/s Ming
International, while Ex.P12 is the salary slip. The evidence
of PW8 coupled with Ex.P14 clearly reveal that M/s Ming
international was not registered company in Bangalore.
PW15-the post man and PW17 have stated that they have
been to the address of M/s Ming international for delivery
of the letter and it is revealed that no such company
existed and it is further evident that from Ex.P9 and
Ex.P11 that one Hidayathulla Khan has signed as
managing partner. Though it is not the case of the
prosecution that accused has forged the signature of said
Hidayathulla, but accused has submitted Ex.P9 and Ex.P11
with an intention to obtain Visa though no such company
existed. Apart from that the evidence of PW6 is again
supported by the evidence of PW7.
22. Further, the evidence of PW14-Syed Kareem is
also important as he is the landlord of accused No.1 and
he clearly deposes that accused No.1 was not his tenant
from 2006 till 01.03.2009 and no company by name
Overseasjobz was functioning in his building. Further, it is
not the case of the accused that any such company
Overseasjobz Inc. and M/s Ming International are existing,
but it is the specific assertion of the prosecution that the
said companies are fictitious companies. This is again
corroborated by the evidence of PW19-post man that M/s
Ming international is also a fictitious company as he is
unable to deliver the letter to the company. Hence, the
evidence on record clearly establish that accused No.1
forged some of the documents and signed himself in the
name of the applicants and used them as genuine
documents.
23. As regards accused No.2, the allegation is that
he has created and fake and fabricated documents in order
to get Visa and passport from the competent authority.
According to the prosecution, accused No.2 has obtained a
passport in the fictitious name of one Manjunath though
he had a regular passport in his name.
24. As per the case of the prosecution, the accused
No.2 was arrested on 22.01.2009 and recovery was made
at his instance, but this aspect has been disputed by the
defence. It is asserted that accused No.2 was arrested on
19.01.2009 itself, but to substantiate this contention, no
material document has been produced.
25. The evidence of PW1 to PW3 clearly disclose
that they had accompanied PW9 to MTP wherein they
caught hold of accused No.2 and a mahazar was drawn as
per Ex.P1. Though it is suggested that the accused were
arrested at Chennai on 19.01.2009, but no such evidence
is placed by the defence in this regard. The evidence of
PW1 to PW3 is again corroborated by the evidence of PW9
who led the raid.
26. PW9 has specifically deposed that ASI-
Gangadhar and PW2 arrested the accused at the spot who
was standing outside the car and he was found in
possession of passport bearing No.Z1864256 and another
passport bearing No.E1703378 was also found. It is also
evident from the passport that he had visited Malaysia,
Singapore, Japan New Zealand and Thailand. These Visas
were taken on account of false certification issued by fake
companies of Ming International Migration Consultancy
Cosmo International Business Centre and Universal
S.R.Jewellery. The accused No.2 has also produced
documents showing that he was working as General
Manager in Remix Construction Private Limited by drawing
a salary of Rs.35,800/- and he has prepared salary slip
and appointment order and letter was written to Visa
officer in a letter head and created document of income
tax returns. It is also evident that he has also created DL
No.4826/1996-97 in the name of Manajunath by affixing
the photograph of accused No.2. All these documents
were seized from the custody of accused No.2 under Ex.P1
and the letter head, salary slips, account extract of ICICI
bank, visa letters are marked at Ex.P20 to Ex.P33. As per
the letter of M/s Remix Constructions Limited dated
11.08.2008 addressed to Visa Officer, Senegal Embassy, it
is asserted that Chandregowda Shivakumar was their
employee as per Ex.P34. The passport of Chandregowda
Shivakumar is marked at Ex.P35, but the photograph
affixed is that of accused to Ex.P35. The other passport
found in possession of the accused is marked at Ex.P36
and DL in the name of Manajunath is marked at Ex.P37.
All these documents were seized as per Ex.P40.
27. The evidence of PW9 further disclose that he
has also recorded the voluntary statement of accused No.2
as per Ex.P39 and recovered salary slip of Chandregowda
as per Ex.P46 in six blank sheets of ICICI bank as well as
Ex.P47 seal of Overseasjobz Incorporation marked at MO1
and all these documents were seized from the custody of
accused No.2. Further on 25.01.2009, on the basis of
voluntary statement of accused No.2, they all went to his
house and 38 items marked at Ex.P51 were seized. The DL
of Manjunath was seized from the possession of accused
as per Ex.P3. Apart from that, the debit card bearing the
photo of accused No.2 in the name of Manajunath is
seized, which is marked at Ex.P54. Further, the air travel
tickets in the name of Chandregowda Shivakumar were
recovered as per Ex.P56 and Ex.P57.
28. The evidence also clearly disclose that there are
number of cases filed against this accused and it is simply
asserted that lot of persons were having animosity against
him, but that cannot be a ground to ignore the material
seizure .
29. The evidence of PW10 disclose that the
passport application submitted in the name of Manjunath
is at Ex.P88 and the specific address is given as
Manjunath, son of Shanthappa, 1645, 17th Main, BSK I
Stage, II Block Bangalore - 50. PW11 who is the owner of
property bearing No.1645 i.e., the address shown
pertaining to Manjunath and his evidence clearly disclose
that Manjunath never resided in his premises and though
this witness admits address in Ex.P30, Ex.P53 and Ex.37,
he specifically asserts that no such person stayed in his
premises on rent.
30. The evidence of PW10 further disclose that
accused No.2 has submitted an application for duplicate
passport at Ex.P79 and address was given as #8, 2nd Cross
TCM Royan Road, Chickpet, behind Urdu school,
Bangalore. Along with Ex.P79 he had submitted personal
particulars as per Ex.P80 and police investigation report as
per Ex.P81 and copy of the old passport is produced at
Ex.P85. On the basis of these documents, Ex.P36,
passport came to be issued to accused No.2, but his
evidence also clearly establish that accused No.2 has also
obtained passport in the name of Manjunath, Son of
Shanthappa and he identified the copy of the application
submitted for issuance of passport in the name of
Manjunath as per Ex.P88 and the photo of the accused
No.2 is pasted and address given was that of BSK I Stage.
31. Ex.P91 is a letter, which disclose that
Manajunath was working as an Accountant in
G.P.Electronics and Ex.P93 is the true coy of visa, while
Ex.P58 is the passport issued in the name of Manjunath,
but it is evident that the passport issued as per Ex.P36 and
Ex.P58, the photograph of accused No.2 were found.
Hence, it is evident that accused No.2 having obtained
passport in his name, has illegally in a fictitious name of
Manjunath, son of Shanthappa obtained another passport
and thereby committed an offence under Section 12(1)(b)
of Passport Act, 1967.
32. Apart from that the G.P.Electronics is a fictitious
company as per the case of the prosecution. This is again
evident from the evidence of PW8 and Ex.P14, but while
obtaining passport in the name of Manjunath, accused
No.2 produced the letter of G.P.Electronics at Ex.P91
asserting that Manjunath is working there as an
Accountant. Hence, it is evident that Ex.P91 is a fabricated
document.
33. Further, the driving licence at Ex.P53 and
Ex.P37 were obtained and the DL obtained in the name of
Manjunath, but photograph of accused No.2 has been
pasted on Ex.P37 as well as Ex.P53. Hence, it is evident
that accused No.2 has obtained two DL, one in his own
name and another in the name of fictitious person viz.,
Manjumath. Hence, it is evident that the accused has
impersonated and created fabricated documents and
tendered them in evidence to the competent authority
having knowledge that they are forged documents.
34. Further from the evidence of PW12 and PW34,
it is evident that accused while opening an account in his
name as well as in the name of fictitious person viz.,
Manjunath used the DL at that time for address proof.
35. Further, it is the specific assertion of the
prosecution that accused No.2 has also obtained Visa for
Shivakumar i.e., PW13 and while obtaining Visa it is shown
that he was working in M/s Remix Construction which is a
fictitious company. The evidence of PW13 discloses that he
had handed over the passport marked at Ex.P96 to
accused No.2 in order to obtain visa to visit Senegal and
he has also filled the application as per Ex.P73, but he
specifically asserts that he never worked in M/s Remix
Construction at any point of time and this document is
created by accused No.2.
36. On assessment of this oral and documentary
evidence, it is evident that both the accused have
committed offences by forging the documents and by
using them as genuine documents and accused No.2 has
committed an offence under Section 12 of Passport Act,
1967 also.
37. Much arguments have been advanced regarding
both the accused are unconnected and they have been
prosecuted in a common case, but raid was conducted
commonly and both the accused were apprehended
simultaneously. Further in what way it has prejudiced the
accused is not at all forthcoming. Further, while matter
was posted for trial, no such defence was raised and the
accused could have raised this issue and matter could
have been split up there itself, but that was not done.
Even before the learned Magistrate no such arguments
were advanced and for the first time, before the appellate
court the arguments were advanced in this regard and the
Learned Sessions Judge has dealt this issue and has
properly answered it by rejecting the said submission.
Further, when no prejudice is caused to the accused and
when they got ample opportunity to defend their case,
now it cannot lie in the mouth of the accused that joint
trial is bad or vitiated.
38. The other contention is that the statement
under Section 313 of Cr.P.C. is recorded jointly and no
specific questions were put to the respective accused, but
again the fact remains in what way it has prejudiced the
accused and it is not the case of the accused that they
were prejudiced by joint recording of statement under
Section 313 of Cr.P.C. Hence, the arguments in this regard
are not at all sustainable.
39. The learned counsel for revision petitioners has
placed reliance on a decision of the coordinate bench of
this court in Crl.P.No.2170/2021 dated 21.09.2021
regarding statement under Section 313 of Cr.P.C and
setting aside the statement under Section 313 of Cr.P.C
recorded thereunder. But in the said case, recording of the
statement under Section 313 of Cr.P.C was challenged and
sought to be quashed by filing a petition under Section
482 of Cr.P.C on the ground that incriminating material
and material questions were not posed. But in the instant
case, no such petition was filed and after suffering
conviction in two courts below without disclosing how
accused are prejudiced, the issue has been raised. But in
view of the decision reported in 'SHIVAJI SAHARAO
BOBADE & ANR. VS. STATE OF MAHARASHTRA',
(1973) 2 SCC 793, 'FAINUL KHAN VS. STATE OF
JHARKHAND & ORS', (2019) 9 SCC 549, 'DELHI
SINGH VS. STATE OF MAHARASHTRA, AIR 2010 SCC
3594 and 'STATE (DELHI ADMINISTRATION) VS.
DHARAMPAL', (2001) 10 SCC 372, it has not relevancy.
Even as observed above, the said citation was under
Section 482 of Cr.P.C and in the instant case, no evidence
is placed to show prejudice and hence, question of
applicability of the said citation to the facts and
circumstances of the present case does not arise at all.
40. The learned counsel appearing for respondent-
CBI has placed reliance on a decision rendered by
coordinate bench of this court in 'IQBAL AHMED VS.
CBI', Crl.R.P.538/2014. On perusal of the said decision,
it is evident that in respect of same raid conviction order
was passed against other accused and similar defence was
raised, which was negativated by this court.
41. Further, he placed reliance on a decision
reported in 'SHIVAJI SAHARAO BOBADE & ANR. VS.
STATE OF MAHARASHTRA', (1973) 2 SCC 793,
wherein it is observed that it is the duty of the court to
offer opportunity to the accused to explain every
circumstances established against him and it is for the
accused to show that he was prejudiced by failure on the
part of the prosecution in this regard. The said principles
are directly applicable to the case of the prosecution in this
case as accused have not shown any material to show how
they are prejudiced.
42. He has further placed reliance on a decision
'FAINUL KHAN VS. STATE OF JHARKHAND & ORS',
(2019) 9 SCC 549, wherein it is held that inadequacy or
omissions in questions to be put to accused in 313 Cr.P.C
proceedings cannot be generalized by causing prejudice.
In the instant case also, no evidence is placed that by
recording joint statement, any prejudice has been caused
to the accused.
43. The learned counsel for the respondent further
placed reliance on a decision in 'KRIPAL SINGH VS.
STATE OF RAJASTHAN', (2019) 5 SCC 646 wherein it
is held that there is no legal proposition that the evidence
of police officials is required to be supported by
independent witnesses which is relevant regarding
evidence of PW1 to PW3 and PW9.
44. Further, in 'STATE OF MAHARASHTRA VS.
RAMLAL DEVAPPA RATHOD & ORS', (2015) 15 SCC
77, the Hon'ble Apex Court has held that the recoveries
need not always be proved through deposition of panchas
and it can even be supported through the testimony of
Investigating Officer, which is exactly the case in hand.
Further this view is again supported by the decision in
'MALLIKARJUN & ORS. VS. STATE OF KARNATAKA',
(2019) 8 SCC 359, wherein the Hon'ble Apex Court held
that the evidence of Investigating Officer can be relied on
to prove recovery, even if the pancha witnesses have
turned hostile. These citations would assist the prosecution
completely as in the instance case, mahazar witnesses
have turned hostile but the police officials PW1 to PW3 and
PW9 have fully supported the case of the prosecution.
45. Further, in the decision in 'DELHI SINGH VS.
STATE OF MAHARASHTRA, AIR 2010 SCC 3594 relied
by learned counsel for the respondent, it is observed that
statement of accused under Section 313 Cr.P.C. cannot be
treated as evidence and it is only an defence, which is
required to be considered on the basis of other
circumstances. Further in a decision in 'STATE (DELHI
ADMINISTRATION) VS. DHARAMPAL', (2001) 10 SCC
372, the Hon'ble Apex Court in para 13 observed that
failure to draw accused attention to inculpatary material to
enable him to explain it in examination of accused under
Section 313 of Cr.P.C itself will not vitiate the entire
proceedings. Hence, it is evident that accused is required
to prove that they have in fact prejudiced by such act and
no such evidence is forthcoming in the instant case.
Looking to these facts and circumstances, the grounds
urged by defence counsels are untenable.
46. Both the courts below have appreciated the oral
and documentary evidence in its proper perspective and
have in detail analyzed these aspects and by proper
reasoning have convicted the accused by imposing
reasonable sentences. Under such circumstances, the
question of interfering with the judgment of conviction and
order of sentence passed by the learned Magistrate and
confirmed by the Learned Sessions Judge does not arise at
all. Therefore, I find that no reasons for interfering with
the judgments passed by both the courts below in these
revisions. As such, the point under consideration is
answered in the negative and hence, the revision petitions
need to be dismissed. Accordingly, the petitions fail and
stand dismissed.
Sd/-
JUDGE
SS
