Sajid Ahmed v. Central Bureau of Investigation and State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 10[TH] DAY OF OCTOBER 2022 / 18TH ASWINA, 1944 CRL.REV.PET NO. 149 OF 2019 ``` ``` AGAINST THE ORDER IN CRL MP NO.55 OF 2013 IN CC 13/2011 OF COURT OF SPECIAL JUDGE(SPE/CBI), THIRUVANANTHAPURAM REVISION PETITIONER/ACCUSED NO.20: ``` ``` SAJID AHMED, AGED 45 YEARS S/O KOYA KUNJU, TC-29/1669, PLANCHERY LANE, KAITHAMUKKU, THIRUVANANTHAPURAM. BY ADVS. ANIL K.MOHAMMED V.S.MANSOOR ``` ## **`RESPONDENTS/COMPLAINANT AND STATE:`** ``` 1CENTRAL BUREAU OF INVESTIGATION, COCHIN UNIT, REPRESENTED BY THE STANDING COUNSEL, HIGH COURT OF KERALA 682 031. 2STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA 682 031. R1 BY ADV MANU S., ASG OF INDIA R1 BY SRI. SUVIN R. MENON CGC ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 149 OF 2019 ``` **==> picture [20 x 9] intentionally omitted <==** ## **ORDER** This Criminal Revision Petition is directed against the common order dated 28.11.2018 passed by the Special Judge (SPE/CBI) Thiruvananthapuram in Crl.M.P.No. 55/2013 in C.C.No.13/2011. The revision petitioner is accused No.20 in the calendar case. Final report has been filed by the CBI against the petitioner and 22 other accused alleging offences punishable under Section 120B r/w Section 420 IPC, Section 468 IPC r/w Section 471 IPC, Section 473 IPC r/w Section 468 IPC and Section 13(2) r/w Sections 13(1)(a) and (d) of the Prevention of Corruption Act, 1988. 2. The prosecution case is that Shri. Surya Rao (A-1), a Section Officer employed in the Ministry of Labour & Employment, New Delhi in May-June 2005 conspired with accused No.5 Shri. Manoj Kumar Singh, who was working on deputation under the Protector General of Emigrants (PGE for short), New Delhi in the ``` CRL.REV.PET NO. 149 OF 2019 ``` **==> picture [20 x 9] intentionally omitted <==** Ministry of Overseas Indian Affairs, to get posting to accused No.1 as Protector of Emigrants (POE), Thiruvanathapuram and to get pecuniary advantage for themselves by abusing their official position. 3. Pursuant to the conspiracy, accused No.1 was posted as POE, Thiruvananthapuram. He worked there in that post from 05.09.2005 to 04.06.2006. It was agreed to pay bribe to accused No.5 regularly. Accused No.2 was the Assistant POE, Thiruvananthapuram. Accused No.3 was a Peon employed in the office of the POE. Accused No.4 was a Chawkidar. During September, 2005, in pursuance of the conspiracy among accused Nos. 1 and 5, accused Nos.3, 4 and other recruiting agents and representatives, all the accused cheated Government of India in the matter of issuing recruitment permission and emigration clearance based on false and forged documents. Accused No.1 issued recruitment permissions and emigration clearances to accused Nos. 6 to 23 based on false and forged documents by receiving illegal ``` CRL.REV.PET NO. 149 OF 2019 ``` **==> picture [20 x 9] intentionally omitted <==** gratification. The specific allegation against accused No.20, the petitioner herein, is that in pursuance of the criminal conspiracy, he forged documents such as powerof-attorney, demand letter, employment contract etc. by using computer and affixed forged signatures on them to make it appear that those were signed by the foreign company head and forged visa copies of different companies by cutting and pasting different ‘sponsor names’ and ‘profession’ to suit the recruitment permission taken as part of the conspiracy and used them as genuine on various dates for the purpose of cheating Government of India, by submitting them through Shri. N. Jayakumar (A-19), for obtaining permission for recruitment and emigration clearance, knowing well that they were forged documents at the time of using them. 4. The petitioner filed Crl.MP No.55/2013 under Section 239 Cr.P.C. seeking discharge. The trial Court, after considering the materials placed before it, recorded the finding that the prosecution has established a prima ``` CRL.REV.PET NO. 149 OF 2019 ``` **==> picture [20 x 8] intentionally omitted <==** facie case against the petitioner for prosecuting him for the offences alleged. The said order is under challenge in this Criminal Revision Petition. 5. Heard Shri. Anil K. Muhamed, the learned counsel for the revision petitioner and Shri. Suvin R. Menon, the learned Central Government Counsel. 6. The learned counsel for the petitioner submitted that the prosecution failed to establish a prima facie case against the revision petitioner to maintain the charges alleged. 7. Per contra, the learned Central Government Counsel supported the order impugned contending that the Court below rightly recorded the finding that the prosecution established a prima facie case against the petitioner. It is further submitted that the probative value of materials on record has to be gone into only at the time of trial and the Court is not expected to go deep into the matter at the stage of framing charges. 8. The trial Court mainly relied on the statements ``` CRL.REV.PET NO. 149 OF 2019 ``` **==> picture [20 x 9] intentionally omitted <==** of witness Nos.65 and 66 and document Nos. 76 and 133 series. 9. Witness No.65 was an employee of M/s City Links run by the petitioner herein. Witness No.65 would state that the POE (A-1) used to receive bribe for the clearance of emigration at the rate of Rs.200 to Rs.500 per passport. He would further state that the petitioner directly gave the bribe amount at the instruction of Shri. Muralidharan of Viking Travels. The petitioner forged certain letter pads in the name of M/s. Nassay Trading and M/s. Kalhat Services and Trading. In the said letter pads, he prepared matters and signed in the office. Witnesses cited by the prosecution identified document No.76, a file seized during the course of investigation containing forged letter pads filled with matters in the name of M/s. Nassay Trading and M/s. Kalhat Services and Trading. The prosecution placed materials alleging that these letter pads were forged in the firm run by the petitioner at the request of accused No.9 who was ``` CRL.REV.PET NO. 149 OF 2019 ``` **==> picture [20 x 8] intentionally omitted <==** running a travel agency by name M/s. Krishna Tours and Travels. Witness No.66, who was working in the firm named M/s. Krishna Tours and Travels, engaged in the emigration works and entrusted with the duty to fill up emigration applications, would state that he put signatures of the applicants in the emigration forms changing ‘sponsors’ name’ and ‘profession’ in the visa copies and handed over bribe amount given by his proprietor to the employees at POE office, Thiruvananthapuram. Witness No.66 would further state that the bribe amounts were being handed over to POE staff on daily basis. Document No.76, the file containing letter pads allegedly forged by the petitioner, was sent for expert opinion. In the examination, it was found that signatures in the said documents were superimposed to one another and they were not made by a writing ink but had been made by process of scanning and printing corroborating the evidence of witness Nos.65 and 66. 9. The specific case of the prosecution is that the ``` CRL.REV.PET NO. 149 OF 2019 ``` ..8.. petitioner prepared the forged documents under the letter heads of different companies for helping accused No.19 in getting emigration clearance and emigration permission. 10. The parameters which govern the exercise of jurisdiction under Section 239 Cr.P.C. were considered by the Apex Court in several decisions. It is a settled principle of law that at the stage of considering an application for discharge, the Court must proceed on the assumption that the material which has been brought on record by the prosecution is true and evaluate the material in order to determine whether the facts emerged from the material taken on its face value disclose the existence of the ingredients necessary to constitute the offence. 11. While dealing with the scope of Section 239 Cr.P.C., the Apex Court in **State of Tamil Nadu v. N. Suresh Rajan** [(2014) 11 SCC 709] held thus:- “29…. At this stage, probative value of the materials ``` CRL.REV.PET NO. 149 OF 2019 ``` ..9.. has to be gone into and the the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.” 12. In **Sajjan Kumar v. CBI** [(2010) 9 SCC 368], the Apex Court, on consideration of the various decisions about the scope of Sections 227 and 228 of the Code of ## Criminal Procedure, laid down the following principles:- - “(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. - (ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. - (iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was ``` CRL.REV.PET NO. 149 OF 2019 ``` ..10.. conducting a trial. - (iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. - (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. - (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. - (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” 13. Following **Sajjan kumar** (Supra) in **State by the Inspector of Police, Chennai v. S. Selvi and another** [2018 (1) KLD 198 (SC)], the Apex Court held that if on the basis of the materials on record, the Court ``` CRL.REV.PET NO. 149 OF 2019 ``` **==> picture [26 x 9] intentionally omitted <==** would form prima facie opinion that the accused might have committed offence, it can frame charge, though for conviction it is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing charges, the probative value of materials on record has to be gone into and the Court is not expected to go deep into the matter and hold that the materials would not warrant conviction. 14. In the case on hand, materials and documents on record would lead to the conclusion that the prosecution could establish a prima facie case against the accused to frame charges. The resultant conclusion is that the Crl. Revision Petition lacks merits and stands dismissed. ## **Sd/K. BABU, JUDGE** kkj ``` CRL.REV.PET NO. 149 OF 2019 ``` ..12.. ## **`APPENDIX OF CRL.REV.PET 149/2019`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE APHOTOCOPY OF FINAL REPORT IN CC NO 55 OF 2013 OF THE COURT OF SPECIAL JUDGE (SPE/CBI)THIRUVANANTHAPURAM ANNEXURE BCERTIFIED COPY OF COMMON ORDER IN CRL.M.P.NO 129 OF 2012 AND CRL. M.P.NO 55 OF 2013 IN C.C. NO 13 OF 2011 OF THE COURT OF SPECIAL JUDGE (SPE/CBI),THIRUVANANTHAPURAM ANNEXURE CPHOTOCOPY OF STATEMENT OF WITNESS NO 65 VINOD ANNEXURE DPHOTOCOPY OF STATEMENT OF WITNESS NO 66 JAYAKUMARAN ```