Jogesh Kumar Gomber vs State Of Himachal Pradesh

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.R. No. 86 of 2007.

Reserved on: 21.07.2016.

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Decided on: 08.09.2016.

Jogesh Kumar Gomber ....Petitioner.

Versus

State of Himachal Pradesh ... Respondent. __________________________________________________________________

of Coram The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes rt For the petitioner. : Mr. R.L. Sood, Senior Advocate, with Mr. Sanjeev Kumar,

Advocate.

For the respondent : Mr. V.S. Chauhan, Addl. AG with Ms. Parul Negi, Dy. AG.

Ajay Mohan Goel, Judge

By way this revision petition, the petitioner has

prayed for the following relief:

"It is, therefore, prayed that the judgment of conviction

and order of sentence passed by the learned trial Court be set-aside and the appellant may please be acquitted of all the changes by way of acceptance of this appeal, in the interest of justice."

2. The case of the prosecution was that through

accused Ashok Kumar Chaudhary Government of Himachal

1 Whether reporters of the local papers may be allowed to see the judgment?

::: Downloaded on - 15/04/2017 21:12:32 :::HCHP 2 Pradesh received a copy of order dated 25.09.2002

purportedly passed by the Hon'ble Supreme Court of India

alongwith a letter from Rashtrpati Bhawan, New Delhi,

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whereby accused Ashok Kumar Chaudhary was

recommended as appointee to the post of Joint Secretary to

the Government of Himachal Pradesh. Letter of

recommendation for appointment was signed by accused

of Surender Singh Bhatia as authorized signatory and accused

Jogesh Kumar Gomber (present petitioner) as authorized rt signatory. Further as per the prosecution, accused Ashok

Kumar Chaudhary visited the office of Shri B.S. Nanta,

Special Secretary to the Government of Himachal Pradesh in

connection with his appointment many times. He also visited

other high officials in this regard. However, as there was no

intimation to the State Government regarding so called orders

passed by the Hon'ble Supreme Court, prima facie, the entire

episode was found to be suspicious and accordingly Shri

Subhash Negi, the then Secretary (Personnel), to the

government of Himachal Pradesh telephonically contacted

Rashtrpati Bhawan, New Delhi and it was gathered that no

such recommendation was ever made in favour of accused

Ashok Kumar Chaudhary for being appointed as Joint

Secretary. According to the prosecution, accused Ashok

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Kumar Chaudhary alongwith other co-accused including the

present petitioner connived with each other and forged

documents in order to cheat the State Government so that

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accused Ashok Kumar Chaudhary be appointed as Joint

Secretary to the Government of Himachal Pradesh.

3. On the basis of complaint lodged by Special

Secretary to the Government of H.P., FIR was registered

of against the accused persons and investigation was carried

out. After the completion of the investigation, challan was rt filed in the Court and as a prima-facie case was found against

the accused, accordingly, they were charged for offences

punishable under Sections 419, 466, 468, 471 and 120B of

the Indian Penal Code (for short 'IPC') to which they pleaded

not guilty and claimed trial.

4. Learned trial Court held that the prosecution was

able to substantiate the guilt of accused Ashok Kumar

Chaudhary and the present petitioner while acquitting

accused S.S. Bhatia. Learned trial Court convicted Ashok

Kumar Chaudhary and the petitioner for offences punishable

under Sections 120B, 419, 466, 468 and 471 of IPC and

sentenced the petitioner alongwith Ashok Kumar Chaudhary

to suffer rigorous imprisonment for a period of two years and

fine in the sum of ` 1,000/- each for offence punishable

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under Section 120-B of IPC. Learned trial Court further

sentenced both the convicts to undergo rigorous

imprisonment for a period of two years and fine in the sum of

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` 1,000/- each for offence punishable under Section 419 of

IPC, rigorous imprisonment for a period of two years and fine

of ` 1,000/- each for offence punishable under Section 466 of

IPC, rigorous imprisonment for a period of two years and fine

of of ` 1,000/- each for offence punishable under Section 468 of

IPC and rigorous imprisonment for a period of two years and rt fine of ` 1,000/- each for offence punishable under Section

471 of IPC.

5. The judgment passed by the learned trial Court

was challenged by the petitioner before the learned Appellate

Court and learned Appellate Court, vide judgment dated

28.06.2007, dismissed the appeal so filed by the petitioner

and upheld the judgment of conviction passed against him by

the learned trial Court.

6. Mr. R.L. Sood, learned Senior Counsel appearing

for the petitioner has argued that the judgments of conviction

passed against the present petitioner by both the learned

Courts below were perverse and not sustainable either on fact

or on law. Mr. Sood argued that the findings of conviction

returned by learned trial Court and upheld by learned

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Appellate Court were not borne out from the records of the

case and both the learned Courts below in fact miserably

failed to appreciate that the prosecution was not able to prove

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its case beyond reasonable doubt against the petitioner,

hence, conviction of petitioner had resulted in travesty of

justice. Mr. Sood, vehemently argued that it was a fit case

where this Court should exercise its revisional jurisdiction

of because the perversity in the findings returned by the learned

Courts below against the petitioner was writ large. According rt to Mr. Sood, both the learned Courts below failed to

appreciate that the prosecution did not produce an iota of

evidence on record to substantiate that the petitioner herein

had hatched any criminal conspiracy with Ashok Kumar

Chaudhary for commission of offences for which he had been

convicted. As per Mr. Sood, the petitioner deserved acquittal

on this count alone. He further argued that even otherwise

both the judgments passed by learned Courts below were

perverse because both the learned Courts below failed to

appreciate that there was no material on record to link the

petitioner with the commission of the alleged offence. Mr.

Sood, further argued that there was no evidence on record

that petitioner either was known to accused A.K. Chaudhary

or that he had entered into a criminal conspiracy with

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accused A.K. Chaudahry and in furtherance of the same, he

had forged any document. Mr. Sood further argued that none

of the prosecution witnesses pointed towards complicity of the

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petitioner in the crime committed. It was further argued by

Mr. Sood that both the learned Courts below erred in relying

upon unsubstantiated and uncorroborated evidence of the

handwriting expert without appreciating that the opinion of a

of handwriting expert even otherwise was only a corroborative

piece of evidence and conviction cannot solely be based on it.

7. rtOn the other hand, Mr. V.S. Chauhan, learned

Additional Advocate General argued that keeping in view the

fact that both learned Courts below had held that the

petitioner was guilty of the offences charged against him, the

judgment of conviction so passed by learned Courts below did

not warrant any interference in exercise of the revisional

jurisdiction by this Court. Therefore, he submitted that as

there was no merit in the revision petition, the same be

dismissed.

8. I have heard the learned counsel for the parties

and also gone through the records of the case as well as the

judgments passed by both the Courts below.

9. Before proceeding in the matter, it is relevant to

take note of what is the scope of revisional jurisdiction of this

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Court. It is settled law that the scope of revisional jurisdiction

of this Court does not extend to re-appreciation of evidence. It

has been held by the Hon'ble Supreme Court that the High

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Court in exercise of its revisional power can interfere only if

the findings of the Court whose decision is sought to be

revised is shown to be perverse or untenable in law or is

grossly erroneous or glaringly unreasonable or where the

of decision is based on no material or where the material facts

are wholly ignored or where judicial discretion is exercised rt arbitrarily or capriciously. It has been held by Hon'ble

Supreme Court in Sanjaysinh Ramrao Chavan Versus

Dattatray Gulabrao Phalke and Others, (2015) 3

Supreme Court Cases 123, that unmerited and underseved

prosecution is an infringement of guarantee under Article 21

of the Constitution of India. In this case, Hon'ble Supreme

Court has further held that the purpose of revision

jurisdiction is to preserve the power in the Court to do justice

in cases of criminal jurisprudence.

10. In the backdrop of the scope of scope of revisional

jurisdiction of this Court, hereinafter this Court shall deal

with the respective contentions of the parties.

::: Downloaded on - 15/04/2017 21:12:32 :::HCHP 8 11. In order to prove its case, prosecution examined

15 witnesses and this Court shall now refer to the testimony

of material prosecution witnesses.

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12. HC Jai Prakash entered the witness box as PW1

and deposed that he had brought the requisitioned record

regarding FIR registered against accused A.K. Chaudhary at

Preetvihar Police Station.

of

13. Sh. Ashok Kumar, HC, Crime Branch, State CID,

entered the witness box as PW2 and he deposed about the rt search which was carried out in the house of A.K. Chaudhary

in Model Town, Yamuna Nagar.

14. Ms. Seema entered the witness box as PW3 and

stated that she was working in the STD of the petitioner in

Moti Nagar, Delhi. This witness did not support the case of

prosecution and was declared as hostile witness. In her cross

examination by the State, this witness stated that she used to

work in the shop alone. She admitted it to be correct that

during day time, record used to be with her. This witness

denied that documents mark 7-1 to mark 7-5 were handed

over to police by her. She stated that she was working with

J.K. Gomber for the last one year. In her cross examination

on behalf of accused A.K. Chaudhary, this witness stated that

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she did not know A.K. Chaudhary, nor had he ever come to

the shop of the petitioner in her presence.

15. Mr. Raj Mohan Singh entered the witness box as

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PW4 and he stated that he works as a Chemist in Yamuna

Nagar. As per his testimony, accused A.K. Chaudhary used to

reside behind his house. In his entire testimony, this witness

has not stated, either in his examination in chief or in cross

of examination, that he knew the petitioner or recognized him.

Another very important aspect of the matter is that in the rt cross examination, this witness stated that he knew accused

S.S. Bahtia who was a Lawyer, practicing on the taxation

side.

16. Rasif Ahmad entered the witness box as PW5. He

stated that the petitioner was running STD shop which was

adjacent to his shop. As per him, when he went to the shop of

petitioner, police was already there and he signed Ext. PW7/A

on their asking. He denied that any document was taken into

possession in his presence. He was also declared as hostile as

he did not support the case of prosecution.

17. Mr. Harbans Lal entered the witness box as PW6.

As per the case of prosecution, this witness was associated

during the course of investigation, however, he did not

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corroborate the case of prosecution and was declared as a

hostile witness.

18. PW7 ASI Chanchal Singh deposed that he was

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posted in Police Station East, Shimla at the relevant time and

that on the basis of statement of Shri B.S. Nanta recorded

under Section 154 of Code of Criminal Procedure, he lodged

FIR Ext. PW7/A.

of

19. PW8 Dy. S.P. Swarn Singh has interalia deposed

about the preparation of supplementary challan and filing of rt the same in the Court.

20. PW9 Satish Kumar deposed that in the year 2005

he was posted in State CID and he had deposited the case

property at FSL, Junga.

21. PW10 Sheel Kumar deposed that from February,

2006, he was posted in Chanakyapuri Police Station as MHC

and he had brought FIR register of Police Station

Chanakyapuri. He further stated that FIR 94/03, dated

03.04.2003 under Section 420, 467, 468 and 471 of IPC was

registered only against accused Ashok Chaudhary.

22. Mr. B.S. Nanta entered the witness as PW-11 and

he deposed that from April 2002 to August 2003, he remained

posted as Special Secretary to the Government of Himachal

Pradesh. He deposed qua the factum of accused A.K.

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Chaudhary having come to his office in October 2002 and

having presented before him a letter addressed from the office

of President of India to the effect that the said accused be

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appointed against the post of Joint Secretary. This witness

also stated that the letter which purportedly had come from

the President of India's office was signed by S.S. Bhatia and

J.K. Gomber as authorized signatory. This witness also stated

of that as there was doubt about the veracity of the said

communication, accordingly, it was inquired as to whether rt any such kind of communication had been addressed from

Rashtrapati Bhawan which query revealed that no such

communication in fact had been issued by Rashtrapati

Bhawan and on these bases, case was registered on the

ground that all the accused i.e. A.K. Chaudhary, S.S. Bahtia

and J.K. Gomber, by entering into a criminal conspiracy, had

created forged documents with the intent of cheating, to have

appointed A.K. Chaudhary, as Joint Secretary to the

Government of Himachal Pradesh.

23. Mr. Subhash Chand Negi, entered the witness box

as PW12. He deposed that in the year 2002-03, he was

serving as Commissioner-cum-Secretary to the Government of

Himachal Pradesh, when accused A.K. Chaudhary, first took

appointment from him on telephone and intimated that he

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was to join as Joint Secretary, as per the directions of Hon'ble

Supreme Court and communication issued by Rashtrapati

Bhawan. He further deposed about the factum of accused

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A.K. Chaudhary having come to Shimla and the facilities

extended to him and A.K. Chaudhary producing with

communication addressed by Rashtrapati Bhawan to him

which was subsequently found to be incorrect. In his cross

of examination this witness deposed that he did not make any

inquiry about the documents in issue from J.K. Gomber or rt S.S. Bhatia. He also stated that he was not aware as to what

J.K. Gomber and S.S. Bahtia do in life and he also stated that

petitioner and S.S. Bhatia never visited his office.

24. Mr. Satish Mathur, Director, President's

Secretariat, New Delhi, entered the witness box as PW13 and

deposed that Rashtrapati Secretariat received letter Ext. P-2

from Secretary, Personnel, Government of Himachal Pradesh,

dated 01.11.2002, to which it was responded that no

directions/recommendations to the Government of Himachal

Pradesh, as alleged by accused A.K. Chaudhary, were ever

issued. He also stated that there were no authorized

signatories or additional authorized signatories of President of

India as alleged by accused A.K. Chaudhary. In his cross

examination, this witness stated that signatures on Ext. P-1,

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Ext. P-10 and Ext. P-11 were not got investigated by their

office. He admitted it to be correct that S.S. Bhatia and J.K.

Gomber were not known to him. He stated that he cannot say

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that signatures of S.S. Bhatia and J.K. Gomber were forged.

25. Mr. Visheshwar Sharma, Scientific Officer, State

Forensic Science Laboratory, Junga, entered the witness box

as PW14. This witness proved on record the signatures of the

of signatories including the accused on the allegedly forged

documents. In his cross examination on behalf of present rt petitioner, this witness stated that they had prepared photo

enlargement but the same were not sent with the report. He

also stated that no chemical test was done. He also admitted

that in the age of computer, possibility of scanning cannot be

ruled out. This witness further deposed that they had not

used the water for spreading the ink as the same was

destructive technique. He admitted that they had not reported

whether the questioned signatures of the present petitioner

were by fountain pen or by ball point pen. Another very

important aspect of the matter is that this witness admitted it

to be correct in his cross examination that the admitted

signatures Ext. PW12/A-12 and PW12/A-13 were carbon

signatures. His exact testimony in this regard is mentioned

herein below:

::: Downloaded on - 15/04/2017 21:12:32 :::HCHP 14 "It is correct that the admitted signatures in Ext. PW12/A-12 and PW12/A-13 are carbon signature."

26. Investigating Officer Virender Kalia entered the

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witness box as PW15. A perusal of testimony of this witnesses

demonstrates that he has stated in his cross examination on

behalf of the petitioner that he had recorded the statements of

only two officials of the Rashtrapati Bhawan. He also

of admitted it to be correct that neither did he visit the Ministry

of Justice, Law and Company Affairs in course of rt investigation of this case nor he collected any material in this

regard. He also admitted in his cross examination that

petitioner never met him in Delhi nor he ever confronted the

petitioner with his alleged signatures. He further admitted it

to be correct that the present petitioner had a shop of

communication, however, he stated that he was not aware of

the fact that as to whether or not his telephone number and

fax number were written outside the shop or not. He further

admitted it to be correct that he did not conduct any

investigation from the office of Joint Secretary, Government of

India, pertaining to the documents in issue. He also admitted

it to be correct that he acted against S.S. Bahtia and the

present petitioner only because their names were written on

the documents. He admitted it to be correct that in this

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regard he neither interrogated the present petitioner nor did

he ever show the documents in issue to the petitioner. In his

cross examination, he further stated that he could not tell as

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to whether the signatures of the present petitioner were

original or scanned.

27. It is evident and clear from the perusal of the

testimony of prosecution witnesses that PW11 and PW12

of respectively have nowhere stated that the petitioner either

came to Shimla or he visited their respective offices with rt accused A.K. Chaudhary. PW3, PW5 and PW6, who as per

prosecution were independent witnesses, have not supported

the case of prosecution. PW4, Raj Mohan Singh has nowhere

stated that he ever saw the present petitioner with A.K.

Chaudhary. The FIRs, which have been exhibited by the

prosecution, did not contain the name of the present

petitioner and the witnesses who have proved these FIRs,

clearly stated that only person named in these FIRs was A.K.

Chaudhary.

28. From the above facts one thing is very apparent

and clear that no material was produced on record by the

prosecution linking the present petitioner with A.K.

Chaudhary. The factum of accused A.K. Chaudhary having

produced some communication, purportedly issued by

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Rashtrapati Bhawan, which were purportedly signed by the

present petitioner as authorized signatory does not ipso facto

prove that the present petitioner hatched any criminal

.

conspiracy with accused A.K. Chaudhary and in furtherance

of same, forged documents were prepared to play fraud upon

the Government of Himachal Pradesh. Independent witnesses

associated in this regard by the prosecution have not

of supported its case. Though these witnesses have been

subjected to extensive cross examination by the prosecution, rt however, nothing could be elucidated from their cross

examination to further the cause of the prosecution. There is

not an iota of evidence adduced by the prosecution on record

to prove that in fact petitioner hatched any criminal

conspiracy with A.K. Chaudhary and it was a result of such

criminal conspiracy that forged documents were prepared

which were purportedly signed by present petitioner in his

capacity as authorized signatory. There is no evidence on

record which either links the present petitioner with accused

A.K. Chaudhary or from which it can be inferred that

petitioner and A.K. Chaudhary had in fact connived and

conspired to commit the offences for which present petitioner

has been convicted. Another important aspect of the matter is

that S.S. Bhatia, who was also one of the accused and against

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whom allegations were similar as against the petitioner, stood

acquitted by learned trial Court. Therefore, also it is not

understood as to how learned trial Court convicted the

.

present petitioner for commission of offences under Sections

419, 466, 468, 471 and 120-B of IPC, when on the same set

of evidence, other co-accused S.S. Bhatia was acquitted by it.

29. In the present case, the findings which have been

of returned by learned trial Court while convicting the present

accused for commission of offences punishable under rt Sections 419, 466, 468, 471 and 120-B of IPC, are not borne

out from the records of the present case thus findings

returned are glaringly unreasonable.

30. PW15, the IO of the case, in his cross examination

has admitted that he never confronted the petitioner with his

alleged signatures. Testimony of this witness has been totally

ignored by the learned Courts below which has already been

discussed by me in detail above.

31. Both the learned Courts below while convicting

the petitioner erred in not appreciating that it was thus

apparent from the record that material prosecution witnesses

had admitted that the petitioner was in fact never confronted

with his alleged signatures on the alleged forged documents.

::: Downloaded on - 15/04/2017 21:12:32 :::HCHP 18 32. As far as the testimony of PW12, Visheshwar

Sharma, Scientific Officer is concerned, this witness has

admitted in his cross examination that admitted signatures of

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the present petitioner were, in fact, carbon signatures. In

other words, the so called expert has not examined the

signatures of present petitioner on the alleged forged

documents with original admitted signature of the present

of petitioner because as per the admission of this expert, the

alleged admitted signatures which were made available to him rt were carbon copy signatures only. It is settled law that

opinion of handwriting expert is a weak kind of evidence and

is only corroborative in nature. Neither the prosecution could

link the present petitioner with A.K. Chaudhary or the

offences allegedly committed and in the absence of same,

accused could not have been be convicted solely on the basis

of testimony of a handwriting expert.

33. Not only this, it has not been appreciated by the

learned Courts below that the ground on which the

Handwriting Expert purportedly formed his opinion to the

effect that the forged signatures were those of the present

petitioner were not mentioned in the report of the expert. This

is more so when the expert has himself admitted in the Court

that he applied no chemical or water test. Even otherwise as I

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have already discussed above, the report of a handwriting

expert is only corroborative evidence and in the absence of

there being other substantive cogent material on record to

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prove the guilt of a person, an accused cannot be convicted

on the basis of the report of a handwriting expert.

34. It has been held by the Hon'ble Supreme Court in

Magan Bihari Lal v. The State of Punjab, 1977 Cri. L.J.

of 711 that it is now well settled that expert opinion must

always be received with great caution and perhaps none so rt with more caution than the opinion of a handwriting expert.

Hon'ble Supreme Court further held that there is a profusion

of precedential authority which holds that it is unsafe to base

a conviction solely on expert opinion without substantial

corroboration and that this rule has been universally acted

upon and it has almost become a rule of law.

35. It has been held by the Hon'ble Supreme Court in

Jagmal Singh Yadav Versus Aimaduddin Ahmed Khan,

1994 Supp (2) Supreme Court Cases 308:

"We have examined the opinions given by the two experts. Even if we agree with the High Court that the opinion expressed by Shri Sarwate is more convincing than that of Shri Kapur, it would not be possible for us to hold that the signatures on Ex. PW 1/9 are of the appellant. It is settled proposition of law that the charge of corrupt practice against a returned

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candidate has to be proved like a criminal charge and unless there is cogent evidence to take the case beyond reasonable doubt the election cannot be set aside. Maurya (DW 20) having been proved wholly

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unreliable witness, the source of the letter Ex. PW 1/9

becomes highly tainted and as such doubtful. It is no doubt correct that the signatures on the letter Ex. PW 1/9 have to be proved independently and irrespective

of the source from which the document is produced but keeping in view the totality of the circumstances in this case it would be difficult for us to hold the charge

of proved against the appellant only on the testimony of the handwriting expert.

36. In Alamgir Versus State (NCT, Delhi), (2003) 1 rt Supreme Court Cases 21, Hon'ble Supreme Court while

reiterating the aforesaid legal position held that handwriting

expert opinion simply corroborates the circumstantial

evidence.

37. In Fakhruddin v. The State of Madhya

Pradesh, AIR 1967 Supreme Court 1326, Hon'ble Supreme

Court held:

" Evidence of the identity of handwriting receives treatment in three sections of the Indian Evidence Act.

They are Sections 45, 47 and 73. Handwriting may be proved on admission of the writer, by the evidence of some witness in whose presence he wrote. This is direct evidence and it is is available the evidence of any other kind is rendered unnecessary. The evidence Act also makes relevant the opinion of a handwriting expert (S.45) or of one who is said to have written a particular writing. Thus besides direct evidence which is of course the best method of proof, the law makes

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relevant two other modes. A writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert

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competent to the comparison of handwritings on a

scientific basis. A third method (S. 73) is comparison by the Court with a writing made in the presence of the Court or admitted or proved to be the writing of the

person.

Both under S. 45 and S. 47 the evidence is an opinion, in the former by a scientific comparison and

of in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are rt open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to

compare them with the disputed one, not to become an handwriting expert in the one case and to appraise the value of the opinion in the other case. This

comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in large

measure in the disputed writing. In this way the opinion of the deponent whether expert or other is

subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is

given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can be safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness."

::: Downloaded on - 15/04/2017 21:12:32 :::HCHP 22 38. Thus, in view of the above settled legal position, in

my considered view, both the learned Courts below failed to

appreciate that the conviction of the petitioner could not have

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been based on the opinion of the handwriting expert in the

absence of there being any other substantive evidence

available on record to substantiate that the alleged signatures

on the forged documents were that of the petitioner only and

of he had entered into criminal conspiracy with A.K. Chaudhary

to forge the documents.

39. rtIt is settled law that criminal conspiracy is an

agreement between two or more persons to do or cause to be

done an illegal act or a legal act by illegal means. The offence

of criminal conspiracy consists in meeting of minds of two or

more persons for agreeing to do or caused to be done an

illegal act or legal act by illegal means and the performance of

an act in terms thereof. In order to establish a charge of

conspiracy knowledge about the indulgence in either an

illegal act or a legal act by illegal means is necessary. Thus, it

is manifest that the meeting of minds of two or more persons

for doing an illegal act or a legal act by illegal means is sine

qua non of the criminal conspiracy. The Hon'ble Supreme

Court in Kehar Singh and Ors. V. State (Delhi

Administration), (1988) 2 SCC 609 has held:

::: Downloaded on - 15/04/2017 21:12:32 :::HCHP 23 "The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of

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the scheme or agreement between the parties.

Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough."

40. The Hon'ble Supreme Court in State of

Maharashtra and Ors. V. Som Nath Thapa and Ors.

of (1996) 4 SCC 659 has held that to establish a charge of

conspiracy knowledge about indulgence in either an illegal act rt or a legal act by illegal means is necessary. None for the

above ingredients have been proved by the prosecution

against the petitioner in the present case.

41. Therefore, in view of above discussion, in my

considered view, learned trial Court, in fact erred in

convicting the present petitioner for commission of offences

punishable under Sections 419, 466, 468, 471 and 120-B of

IPC and the findings which have been returned in this regard

by learned trial Court are in fact not borne out from the

records of the case. Even the findings returned in the

judgment passed by learned Appellate Court in appeal so filed

by the present petitioner are not sustainable. Learned

Appellate Court also failed to appreciate that there was no

link evidence produced on record by the prosecution, linking

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the present petitioner with the commission of offences, for

which he was charged. Learned Appellate Court concluded

that the documents on which purported signatures of the

.

present petitioner existed representing himself to be

additional authorized signatory on behalf of President of India

were prepared by him without appreciating that this

document was neither produced by the present petitioner nor

of prosecution had placed on record anything from which it

could be deduced or inferred that said document was rt prepared by present petitioner for A.K. Chaudhary and

purported signature on the same were those of present

petitioner.

42. Therefore, in my considered view, there is merit in

the contention of the learned counsel for the petitioner that

the findings conviction against present petitioner returned by

the learned trial Court are perverse and there is infirmity in

the same because the findings so recorded are not borne out

from the records of the case and even the learned Appellate

Court erred in not appreciating this very important aspect of

the matter.

Accordingly, the present petition is allowed and

the judgment of conviction passed against the present

petitioner by learned trial Court in Cr. Case No. 122/2 of

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2006/2005, dated 31.01.2007, is quashed and set aside so is

the judgment passed in appeal by the learned Appellate Court

in Criminal Appeal No. 12-S/10 of 2007, dated 28.06.2007.

.

Fine amount, if any, deposited by the petitioner, is ordered to

be released to him. Pending miscellaneous application(s), if

any, also stand disposed of.

of (Ajay Mohan Goel) Judge

8th September, 2016.

(narender) rt

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