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Penal Code, 1860 – ss. 120-B, 419, 420, 465 and 468 – Accused entering into a conspiracy with other co-accused, namely, Head Constable, Revenue Inspector and Postman, to secure passport in the assumed name to enable her to leave the country and travel abroad – Submission of false documents – Framing of charges – Plea of double jeopardy by accused that she was tried and convicted by Lisbon court for being in possession of fake passport – Conviction of accused for the offences punishable u/ss. 120-B, 419 and 420; Head Constable u/ss 120-B, 419/109, 420/109, 468 and ss. 13(1)(d) r/w. 13(2) of the 1988 Act; Revenue Inspector u/s. 468; and Postman u/ss. 120-B, 420, 419/109, 420/109 and ss. 13(1)(d) r/w. 13(2) of the 1988 Act – High Court upholding conviction of accused persons, however modifying the sentence – On appeal, held: Same set of facts can constitute offences under two different laws – Bar to punishment to the offender twice over for the same offence would arise only where the ingredients of both the offences are the same – On the basis of the judgment passed by the Constitutional Court, Lisbon and the facts of the case, plea of double jeopardy not sustainable – Accused was involved in conspiracy at both pre-passport application stage and post-passport application stage – Thus, her conviction is upheld, however sentence is reduced to the period already undergone while fine amount is maintained – Evidence on record established that the Postman participated in the conspiracy in securing the passport for accused in the assumed name; and the Head Constable submitted a false report in order to enable the accused to secure a passport for herself in the assumed name – Thus, their conviction is upheld however, the sentence is reduced while fine amount is maintained – As regards Revenue Inspector, ingredients for the offence of forgery not satisfied, thus, he is acquitted of the offence u/s. 465 – Constitution of India, 1950 – Article 20(2) – Rule of double jeopardy – Prevention of Corruption Act, 1988 – s.13(1)(d) r/w 13(2) – Sentence/Sentencing. Constitution of India, 1950 – Article 20(2) – Protection against a second trial and conviction for the same offence under Article 20(2) – When applicable – Explained – Rule of double jeopardy – General Clauses Act, 1897 – Code of Criminal Procedure, 1973 – s. 300. Maxim – `Nemo delset bis vexari pro eadem causa’ – Meaning of – No one should be put on peril twice for the same offence. According to the prosecution case, `M’ (A 3) entered into a conspiracy with A 5 – Head Constable, A 7 – Revenue Inspector, Kurnool and A 8 – Postman, Head Post Office, Kurnool to secure second passport in the assumed name of `SM’ from the Regional Passport Office, Secunderabad by submitting false documents like residence certificate, educational certificate. `M’ entered Portugal with the aid of passport standing in the name of `SM’, and was prosecuted and punished by a competent court of jurisdiction at Lisbon. In India, the charges were framed against the accused persons under various provisions of the Penal Code, 1860 and the Prevention of Corruption Act, 1988. A-3 raised a plea of double jeopardy that she was tried and convicted by Lisbon court for being in possession of fake passport. The trial court convicted A 3 under sections 120-B, 419 and 420 IPC but acquitted her of the charge under Section 12 of the Passports Act, 1967. A 5 was convicted under Sections 120-B, 419 r/w 109, 420 r/w 109, 468 IPC and Sections 13(1) (d) r/w 13(2) of the Prevention of Corruption Act, A 7 under Section 468 IPC, and A 8 under Sections 120-B, 420, 419 r/w 109, 420 r/w 109 and Sections 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. The High Court on re-appreciation of the evidence confirmed the conviction but modified the sentence. Therefore, the appellants filed the instant appeals. =Allowing the appeal filed by the Revenue Inspector and partly allowing the appeals filed by others, the Court HELD: 1.1 Article 20 (2) of the Constitution of India, 1950 provides that no person would be prosecuted and punished for the same offence more than once. It embodies a protection against a second trial and conviction for the same offence. The well known maxim `nemo delset bis vexari pro eadem causa’ embodies the well established common law rule that no one should be put on peril twice for the same offence. The fundamental right guaranteed under Article 20 (2) has its roots in common law maxim nemo debet bis vexari. If a person is charged again for the same offence, he can plead, as a complete defence, his former conviction, or as it is technically expressed, take the plea of autrefois convict. The principle has been recognized in the existing law in India and is enacted in Section 26 of the General Clauses Act, 1897 and Section 300 of the Code of Criminal Procedure, 1973. [Paras 13, 14 and 15] [539-F-H; 540-A-E] 1.2 What is prohibited under Article 20 (2) is, the second prosecution and conviction must be for the same offence. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable. The test to ascertain is whether two offences are the same, and not the identity of the allegations but the identity of the ingredients of the offences. Thus, it is clear that the same facts may give rise to different prosecutions and punishment and in such an event the protection afforded by Article 20 (2) is not available. A person can be prosecuted and punished more than once even on substantially same facts provided the ingredients of both the offences are totally different and they did not form the same offence. [Para 17] [541-D-E; 543-B-D] Maqbool Hussain vs. The State of Bombay (1953) SCR 730; S.A. Venkataraman vs. The Union of India & Anr. (1954) SCR 1150; Leo Roy Frey vs. Superintendent District Jail, Amritsar (1958) SCR 822; The State of Bombay vs. S.L. Apte (1961) 3 SCR 107; Bhagwan Swarup vs. State of Maharashtra AIR 1965 SC 682; State of Rajasthan vs. Hat Singh and Ors. (2003) 2 SCC 152- referred to. United States vs. Rabinowith (1915) 238 US 78; T.W. Morgan vs. Alfonso J. Devine @ Ollie Devine (1915) 237 U.S.1153; United States vs. Vito Lanza (1922) 260 U.S. 314 – referred to. 1.3 The submission that the facts based on which `M’ was prosecuted and punished by a competent court of jurisdiction at Lisbon and the facts based on which prosecution was initiated resulting in conviction are the same and, therefore, the conviction of `M’ is in the teeth of Article 20 (2) of the Constitution and Section 300 of the Code of Criminal Procedure is not well founded since the same set of facts can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under IPC and at the same time constitute an offence under any other law. The bar to the punishment to the offender twice over for the same offence would arise only where the ingredients of both the offences are the same. [Para 21] [545-C-E] 1.4 There is no factual foundation laid as such by `M’ taking the plea of double jeopardy before the trial court. Nothing is suggested to the Investigating Officer or to any of the witnesses that she is sought to be prosecuted and punished for the same offence for which she was charged and convicted by a competent court of jurisdiction at Lisbon. She did not even make any such statement in her examination under Section 313 Cr.P.C. The fundamental right guaranteed under Article 20 (2) of the Constitution is in the nature of an injunction against the State prohibiting it to prosecute and punish any person for the same offence more than once but the initial burden is upon the accused to take the necessary plea and establish the same. [Para 23] [545-H; 546-A-C] Halsbury’s Laws of England, 2nd Edn, Volume-IX – referred to. 1.5 Having regard to the nature of the guaranteed right, the judgment passed by the Constitutional Court, Lisbon (a typed copy) was examined and the same does not support the plea of `M’. In the light of the findings and conclusions reached by the Constitutional Court at Lisbon and on a careful consideration of the entire matter and the facts, plea of double jeopardy is wholly untenable and unsustainable. [Paras 25 and 26] [547-A-B; 549-G-H] 2. This Court in exercise of its jurisdiction under Article 136 of the Constitution of India normally does not interfere with the concurrent findings of facts arrived at by the courts below on proper appreciation of evidence. It is not the function of this Court to re-appreciate the evidence and substitute the findings for that of the courts below unless it is clearly established that the findings and the conclusions so arrived at by the courts below are perverse and based on no evidence. [Para 27] [550- B-C] 3.1 There is no controversy whatsoever that `M’ travelled abroad on the strength of the passport secured by her in the assumed name. She entered Portugal with the aid of passport standing in the name of `SM’ for which she had to face the prosecution and suffer conviction and sentence in Portugal. [Para 28] [550-E-F] 3.2 It is evident from the record that the involvement of the appellants is at two stages. Stage one is where `M’ (A-3) and A-7 were involved in the pre-passport application at the threshold and even before the preparation of application seeking the passport in the assumed name. Stage two is the involvement of A-3, A-5 and A-8 after the submission of passport application before the authorities. The passport application was submitted in the assumed name of `SM’ which contained the photograph of `M’. The essential requirements for obtaining the passport are: passport application; proof of residence; and date of birth certificate as spoken to by PWs. 2, 3, 21 and 31. The evidence of number of witnesses which remained unimpeached brought on record as to how these documents were obtained for the benefit of `M’. [Para 29] [550-F-H; 551-A-B] 3.3 A-7, Mandal Revenue Inspector verified the residence particulars of `SM’ on the instructions of PW-5, Mandal Revenue Officer, Kurnool and submitted a false verification report based on which residence certificate was issued by PW-5. PW-37, Investigating Officer and PW-17 issued certificate to the effect that no person by name `SM’ resided in the house as earlier submitted by A-7. It is based on the said evidence, the trial court and appellate court came to the right conclusion that the prosecution established its case that A-7 gave false verification based on which residence certificate was issued by PW-5 in the name of `SM’. The trial court convicted A-7 for the offence under Section 468 IPC. The High Court held that in submitting the false verification report in respect of residence of `SM’ he may not have been aware and known that the certificate so obtained would be used for the purpose of securing the passport in the assumed name of `SM’. There is no evidence on that aspect. The High Court also concluded that by the time A-7 submitted a false verification there was nothing on record that he was hand in glove with the other accused for the purpose of cheating. The High Court upheld the acquittal of A-7 of the charge under Section 120-B IPC. The High Court found that the proper offence made against him would be one for making forged document simplicitor punishable under Section 465 IPC. The High Court was not justified in convicting A-7 at all for it had found no case against the appellant made out under Section 120-B IPC. There was no evidence that A-7 prepared false document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud. The ingredients of Section 463 are not satisfied. In such an event the conviction of the appellant under Section 465 IPC is unsustainable. A-7 is acquitted for the offence under Section 465 IPC and sentence awarded is set aside. [Paras 29, 30 and 35] [551-A-E; 552-B-G; 557-B] 3.4 Regarding A-8, the Postman, Head Post Office, Kurnool, there is a clear evidence which was properly appreciated by the courts below that A-8 took the envelop containing the passport addressed to `SM’ from PW-11 representing that he knew the addressee and would deliver the same. The said article was actually entrusted to PW-11 for its delivery but A-8 took the same from PW-11 for delivery to `SM’ assumed name of `M’. The courts below found that A-8 was aware of the contents of the article. It is under those circumstances the courts below rightly concluded that the evidence available on record clearly established that he participated in the conspiracy in securing the passport for `M’ in the assumed name of `SM’. Thus, the conviction of A-8 for the offences charged is upheld. There is no reason to interfere with the view taken by the High Court. However, the sentence of one year rigorous imprisonment under each count awarded by the trial court is reduced to that of 6 months rigorous imprisonment under each count while maintaining the fine amount. [Paras 31 and 35] [552-G-H; 553-A- D; 557-D-E] 3.5 A-5, the Head Constable, submitted exhibit P15 report. PW-7, Junior Assistant in the District Police Office, Kurnool, PW-8, Inspector of Police, District Special Branch, Kurnool and PW-14, Sub-Inspector, District Special Branch, Kurnool were the material witnesses examined by the prosecution to prove the accusations leveled against A-5. The courts below held that the evidence of PW-7, PW-8 and PW-14 is cogent and consistent which in clear and categorical terms has proved the fact that A-5 is the person who verified the passport application particulars of `SM’ and submitted exhibit P15 inquiry report along with exhibit P16 and exhibit P17 enclosures. There cannot be any doubt whatsoever that A-5 submitted a false report in order to enable `M’ to secure a passport for herself in the assumed name of `SM’. His conviction for the offences charged is upheld. However, the High Court reduced the sentence awarded by the trial court to one year rigorous imprisonment under each count while maintaining the fine imposed by the trial court. Having regard to the facts and circumstances of the instant case, the conviction of A-5 under Sections 120-B, 419 r/w 109, 420 r/w 109 and 468 IPC and as well as under Section 13 (1) (d) r/w 13(2) of the Prevention of Corruption Act is upheld. However, the sentence is reduced to that of six months rigorous imprisonment under each count while maintaining the fine imposed by the trial court and the sentence to suffer imprisonment, in default, of payment of fine. The sentences are directed to run concurrently. [Paras 32 and 35] [553-E-H; 554-A-E; 556-F-H] 3.6 It is proved that `M’ was involved in the conspiracy at both pre- passport application stage and post-passport application stage. The conspiracy itself was hatched only with a view to secure a passport for `M’ in the assumed name of `SM’. It cannot be said that there was no evidence whatsoever against `M’ to prove her involvement for the offence punishable under Sections 120-B, 419 and 420 IPC. It is for her benefit that the entire conspiracy was hatched involving more than one individual in order to secure a passport for her benefit enabling her to travel abroad in the assumed name of `SM’. There is no material on the basis of which this Court would differ with the findings and conclusions concurrently arrived at by the courts below. [Para 33] [554-F-H; 555-A-B] 3.7 The original of exhibit P50 is the passport issued by the competent authorities in India and, therefore, Section 78 (6) is not applicable to the facts of the instant case. The issuance of original of exhibit P50 passport is clearly proved. It is based on that passport that `M’ travelled abroad and entered Portugal for which she had to face a prosecution and suffer conviction and sentence. The prosecution cannot be held to be vitiated. The conviction of the appellant for the offence punishable under Sections 120-B, 419 and 420 IPC is upheld. However, the High Court reduced the sentence of imprisonment imposed on `M’. The High Court also held that she is entitled for set off of the periods of detention suffered by her in Lisbon, from 18.9.2004 to 4.6.2005 and 3.11.2005 to 10.11.2005. Having regard to the facts and circumstances of the case and the fact that she has undergone more than 2 + years of sentence, the sentence awarded under each count directed to run concurrently is reduced to that of the period already undergone by her, while maintaining the sentence of fine awarded by the courts below. [Paras 33 and 35] [555-E-H; 556-A-B; 556-D-E] Case Law Reference: (1953) SCR 730 Referred to Para 16 (1954) SCR 1150 Referred to Para 16 (1958) SCR 822 Referred to Para 17 (1915) 238US 78 Referred to Para 17 (1961) 3 SCR 107 Referred to Para 17 AIR 1965 SC 682 Referred to Para 17 (2003) 2 SCC 152 Referred to Para 18 (1915) 237 U.S. 1153 Referred to Para 19 (1922) 260 U.S. 314 Referred to Para 20 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 782 of 2007. From the Judgment & Order dated 08.03.2007 of the High Court of Andhra Pradesh at Hyderabad in Criminal Appeal No. 1434 of 2006. With Crl. A. Nos. 783, 784 & 1357 of 2007. P.P. Malhotra, ASG, I. Venkata Narayana, Gaurave Bhargava, Niraj Gupta, V. Sridhar Reddy, V.N. Raghupathy, V. Sudeer, M.B.R.S. Raju, S. Sunita, Balaji Srinivasan, Madhu Smita Bora, Raghenth Basant, Balaji Subramanian, Arvind Kumar Sharma, D. Mahesh Babu, Ramesh Allanki for the appearing parties.

Passport 2

Image by The Wide Wide World via Flickr

REPORTABLE


 IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 782 OF 2007

Monica Bedi ...Appellant

 Versus

State of A.P. ...Respondent
 WITH

 CRIMINAL APPEAL NO. 784 OF 2007

Shaik Abdul Sattar ...Appellant

 Versus

State of A.P. ...Respondent

 WITH

 CRIMINAL APPEAL NO. 783 OF 2007

D. Gokari Saheb ...Appellant
 Versus

State of A.P. ...Respondent

 WITH

 CRIMINAL APPEAL NO. 1357 OF 2007

Mohd. Yunis ...Appellant
 Versus
 2

State of A.P. ...Respondent

 JUDGMENT

B. Sudershan Reddy, J :

1. These criminal appeals which are to be disposed of by a

common order are directed against the common judgment of

the High Court whereunder the High Court confirmed the

conviction of the appellants under Section 120-B, 419 and

420 IPC and other provisions including under Section 13

(1) (d) read with 13 (2) of the Prevention of Corruption Act.

We shall later notice in detail the conviction and sentence as

awarded by the courts below.

2. The Central Bureau of Investigation, SPE, Hyderabad,

laid charge sheet against altogether 10 accused persons

before the Special Judge for C.B.I. cases, Hyderabad in

which Abu Salem Abdul Qayoom Ansari @ Abu Salem(A-1),

Sameera Jumani w/o Abu Salem(A-2), Monica Bedi (A-3),
 3

Chamundi Abdul Hameed (A-6) and Faizan Ahmed Sultan

(A-10) were shown as absconders. The learned Special

Judge took the charge sheet on file as C.C. No. 3 of 2005

and issued non-bailable warrants against A-1, A-2, A-3, A-6

and A-10. Case against A-1, A-2, A-6 and A-10 came to be

separated and case proceeded against A-3, A-4, A-5, A-7, A-

8 and A-9.

3. The learned Special Judge upon consideration of the

material made available framed the following charges

against the accused persons:

i) for the offence under Section 120-B IPC against A-3 to

 A-5, A-7 to A-9;

ii) for the offence under Section 419 IPC against A-3;

iii) for the offence under Section 419 r/w 109 IPC against

 A-4, A-5 and A-7 to A-9;

iv) for the offence under Section 468 IPC against A-5;

v) for the offence under Section 420 IPC against A-8;

vi) for the offence under Section 468 IPC against A-7;
 4

vii) for the offence under Section 13 (1) (d) r/w 13(2) of

 the Prevention of Corruption Act against A-4, A-5, A-7

 and A-8;

viii) for the offence under Section 12 of the Passports Act,

 1967 against A-3;

ix) for the offence under Section 420 IPC against A-3;

x) for the offence under Section 420 r/w 109 IPC against

 A-4, A-5, A-7 to A-9.

4. The prosecution in order to substantiate the charges

examined altogether 38 witnesses and proved 79

documents. Exhibit D-1 to Exhibit D-4 were marked on

behalf of the defence.

5. The learned trial judge upon appreciation of the

evidence and material available on record found Monika Bedi

(A-3 ) guilty of the offences punishable under Sections 120-

B, 419 and 420 IPC but acquitted of the charge under

Section 12 of the Passports Act, 1967; Shaik Abdul Sattar
 5

(A-5) guilty of the offences under Sections 120-B, 419 r/w

109, 420 r/w 109, 468 IPC and Sections 13(1) (d) r/w 13

(2) of the Prevention of Corruption Act; Mohammed Yunis

(A-7) guilty of the offence under Section 468 IPC and D.

Gokari Saheb (A-8) guilty of the offences under Section

120B, 420, 419 r/w 109 IPC, 420 r/w 109 IPC and under

Sections 13 (1) (d) r/w 13 (2) of the Prevention of

Corruption Act. A-3 was accordingly sentenced to suffer

rigorous imprisonment for three years and to pay a fine of

Rs. 500/-, in default, to suffer simple imprisonment for one

month for the offence under Section 120-B IPC; rigorous

imprisonment for five years and to pay a fine of Rs. 1,000/-

in default, to suffer simple imprisonment for one month for

the offence under Section 420 IPC; rigorous imprisonment

for three years and to pay a fine of Rs. 500/-, in default, to

suffer simple imprisonment for one month and for the

offence under Section 419 IPC; A-5 to suffer rigorous

imprisonment for three years and to pay a fine of Rs. 500/-,

in default, to suffer simple imprisonment for one month for
 6

the offence under Section 120-B IPC; rigorous imprisonment

for three years and to pay a fine of Rs. 500/-, in default, to

suffer simple imprisonment for one month for the offence

under Section 419 r/w 109 IPC; rigorous imprisonment for

three years and to pay a fine of Rs. 500/-, in default, to

suffer simple imprisonment for one month for the offence

under Section 420 r/w 109 IPC; rigorous imprisonment for

three years and to pay a fine of Rs. 500/-, in default, to

suffer simple imprisonment for one month for the offence

under Section 468 IPC, and rigorous imprisonment for one

year and to pay a fine of Rs. 500/-, in default, to suffer

simple imprisonment for one month for the offence under

Sections 13 (1) (d) r/w 13 (2) of the Prevention of

Corruption Act. A-7 to suffer rigorous imprisonment for three

years and to pay a fine of Rs. 500/-, in default, to suffer

simple imprisonment for one month for the offence under

Section 468 IPC; A-8 to suffer rigorous imprisonment for

three years and to pay a fine of Rs. 500/-, in default, to

suffer simple imprisonment for one month for the offence
 7

under Section 120-B IPC; rigorous imprisonment for three

years and to pay a fine of Rs. 500/-, in default, to suffer

simple imprisonment for one month for the offence under

Section 419 r/w 109 IPC; rigorous imprisonment for three

years and to pay a fine of Rs. 500/-, in default, to suffer

simple imprisonment for one month for the offence under

Section 420 r/w 109 IPC; rigorous imprisonment for three

years and to pay a fine of Rs. 500/-, in default, to suffer

simple imprisonment for one month for the offence under

Section 420 IPC and rigorous imprisonment for one year and

to pay a fine of Rs. 500/-, in default, to suffer simple

imprisonment for one month for the offence under Sections

13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act. All

the substantive sentences were directed to run concurrently.

6. On appeal the High Court of Andhra Pradesh upon re-

appreciation of evidence available on record confirmed the

conviction of A-3 for the offences punishable under Sections

120-B, 419 and 420 IPC but reduced the sentence from

three years rigorous imprisonment to two years rigorous
 8

imprisonment for the offence punishable under Section 120B

IPC, from five years rigorous imprisonment to three years

rigorous imprisonment for the offence punishable under

Section 420 IPC and from three years rigorous

imprisonment to two years rigorous imprisonment for the

offence punishable under Section 419 IPC while maintaining

the fine imposed by the trial court. The High Court also

confirmed the conviction of A-5 under each count but

reduced the quantum of imprisonment from three years to

one year for offences under each count under Sections 120-

B, 419 r/w 109, 420 r/w 109, 468 IPC. However, his

conviction and sentence imposed for the offences punishable

under Section 13 (1) (d) read with 13 (2) of the Prevention

of Corruption Act was confirmed. That so far as A-7 is

concerned the High Court while partly allowing the appeal

modified the conviction from Section 468 IPC to that of one

under Section 465 IPC and accordingly sentenced to suffer

rigorous imprisonment for six months and to pay a fine of

Rs. 500/-, in default, to suffer simple imprisonment for three
 9

months. That so far as A-8 is concerned the High Court

confirmed his conviction under all counts but reduced the

quantum of imprisonment from three years to one year for

offences under each count under Section 120-B, 420, 419

r/w 109, 420 r/w 109, 468 IPC. However, his conviction and

sentence imposed for the offences punishable under Section

13(1) (d) r/w 13 (2) of the Prevention of Corruption Act was

confirmed. Hence, these appeals.

Case of Prosecution:

7. In order to consider as to whether the High Court

committed any error in convicting and sentencing the

appellants as noted herein above, it may be just and

necessary to briefly notice the case of the prosecution. The

allegation against Accused No. 3 (appellant in Criminal

Appeal No. 782/2007) is that she obtained a second

passport in the assumed name of Sana Malik Kamal from the

Regional Passport Office, Secunderabad by submitting false

documents like residence certificate, educational certificate
 10

with the help of A-4 to A-9. She used the passport to travel

Lisbon, Portugal. The owner of M/s. Faizan Enterprises,

Mumbai (A-10) is involved in the business of recruiting

people for jobs in foreign countries. He gave 10 passport

size photographs of A-1 to A-3 and fake names and

documents to A-9 to secure passports falsely showing them

as residents of Kurnool in the State of Andhra Pradesh. A-9

has relatives in Kurnool. He visited Kurnool in the month of

March, 2001 and entrusted the work of securing passports of

A-1 to A-3, to A-6 an unauthorized passport agent. At the

instance of A-6, A-7 Mohammed Yunis, Mandal Revenue

Inspector of Mandal Revenue Office, Kurnool issued a false

residential certificates in the assumed names intended for

the benefit of A-1 to A-3. A-6 procured fake transfer

certificates purported to have been issued by the

Headmaster, Zila Parishad High Court, Peddapadu, Kurnool

District in the name of Ramil Kamil Malik and two fake

memorandum of marks sheets in the names of Neha Asif

Jafari and Sana Malik, purported to have been issued by the
 11

Headmaster, Higher Elementary School, Kurnool, as a proof

in support of date of birth. One Abdul Gaffar (PW-1) filled

up three passport applications of A-1 to A-3 at the instance

of A-6 and they were accordingly submitted in the Regional

Passport Office, Secunderabad. The authorities accordingly

sent the particulars mentioned in the forms to the office of

Superintendent of Police, Kurnool which were received in the

office on 16.5.2001 vide exhibit P-28 covering letter. A-5

(appellant in Criminal Appeal No. 784/07) at the relevant

time was working as Writer-Head Constable in special

branch. He submitted fake verification reports along with

statements of six persons in support of character and

conduct of A-1 to A-3 by portraying them as if they were the

neighbours of A-1 to A-3. On receipt of reports, A-4

despatched them to Regional Passport Office, Secunderabad.

It is on the basis of these reports, passports were

accordingly issued to A-1 to A-3 in their assumed names and

they were despatched by speed post to their respective

address at Kurnool as indicated in the passport
 12

applications. The passports were received at the Head Post

Office, Kurnool through speed post. On 23.8.2001 two speed

post articles addressed to the assumed names of A-2 and A-

3 were entrusted to PW-11 Babu Miah, a postman of Beat 2,

for delivery of the same to the addressees. A-8 (D. Gokari

Saheb appellant in criminal appeal no. 783/07) Postman,

Head Post Office, Kurnool, approached PW-11 Babu Miah

and collected the two speed post articles by giving his

acknowledgement on the delivery slip list falsely

representing that he knew the addresses and he would

personally deliver the articles. On 27.8.2001 another speed

post article containing passport in the assumed name of A-1

was entrusted to A-8 for delivery who in turn delivered it to

one Aslam Khan, Cashier of Hotel Elite, Kurnool where A-6

was also working. A-6 sent two covers to A-9 on 23.8.2001

and 27.8.2001 in courier service.

8. We shall notice further details only so far as the

appellants before us are concerned. Exhibit P1 is the index

card of Sana Malik Kamal. ( assumed name for Monika
 13

Bedi). PW-1 is the author of exhibit P1. PW-1 filled up

exhibit P1 at the request of C.A. Hameed (A-6). PW-4 is the

Superintendent in the Regional Passport Office,

Secunderabad. He speaks of issuance of the passports in

pursuance of passport application in the name of Sana

Malik. PW-5 P. Krishna Mohan Reddy was the Mandal

Revenue Officer, Kurnool Mandal who issued residence

certificate dated 9.4.2001 in the name of Sana Malik Kamal

based on false verification reports submitted by A-7

Mohammad Yunis. That as per exhibit P9 residence

certificate, Sana Malik Kamal (assumed name of Monica

Bedi) is stated to be residing at Babu Gounda Street,

Kurnool. PW-6 at the relevant time was working as Deputy

Educational Officer, Nandyal, Kurnool District who stated

that there was no school by name of Hanuman Higher

Elementary School, Kurnool wherein Sana Malik Kamal was

alleged to have studied. PW-7 M. Lakshminarayana at the

relevant time was the Junior Assistant in the District Police

Office, Kurnool and he speaks of receiving applications for
 14

verification of contents therein. According to him, A-4 ( G.

Srinivas) who attended to passport inquiries, received the

passport application of Sana Malik Kamal. After receipt of

exhibit P15 enquiry report along with exhibits P16 and P17

statements submitted by A-5 S.A. Sattar, A-4 prepared the

relevant report and forwarded the same to the Regional

Passport Office, Secunderabad. Exhibit P18 is the letter

addressed by the Superintendent of Police to the Regional

Passport Office, Secunderabad reporting no objection for the

grant of passport to the applicant. Rest of evidence relates

to handing over of speed post articles relating to Babu Miah

as per the instructions of the Head Post Master, Kurnool

from whom A-8 Gokari Saheb took the speed post articles

from him for being delivered to the addressees. PW-13 is

the owner of the residential apartment wherein Monica Bedi

(A-3) is alleged to have resided as tenant during the years

1995-1997. Rest of the details are not required to be

noticed.
 15

9. The learned Special judge for C.B.I. on a careful and

meticulous appreciation of the evidence and material made

available on record convicted the appellants as noted herein

above. The High Court on re-appreciation of the evidence

confirmed the conviction but modified the sentence as noted

herein above.

Submissions:

10. Now we shall proceed to consider the submissions

made by the learned senior counsel Shri K.T.S. Tulsi

appearing on behalf of the appellant - Monica Bedi (A-3).

The learned senior counsel submitted that the appellant has

been tried and convicted by a competent court of jurisdiction

at Lisbon for being in possession of fake passport and,

therefore, her trial and conviction for possessing the same

passport before the C.B.I. Court at Hyderabad amounts to

double jeopardy and in violation of Article 20(2) of the

Constitution of India and as well under Section 300 Cr.P.C.

The learned senior counsel further submitted that there is no
 16

evidence of appellant's involvement in any of offence

whatsoever. His further submission was that the appellant

has been denied the benefit of Section 428 of the Code of

Criminal Procedure, in as much as she has neither been

given the benefit of the period of sentence undergone by her

in Portugal nor has she been given the benefit of the

complete period pursuant to sentence in Portugal i.e. after

18th September, 2004, which she is legally entitled to.

11. We have also heard the learned counsel appearing on

behalf of Shaik Abdul Sattar (A-5), Mohd. Yunis (A-7) and D.

Gokari Saheb (A-8).

12. Shri P.P. Malhotra, learned Additional Solicitor General

and Shri I. Venkata Narayana, learned senior counsel

supported the impugned judgment. Both of them have

submitted that Article 20 (2) has no application whatsoever

to the facts on hand.

Double Jeopardy
 17

13. Now we shall take up the first contention of Shri Tulsi

as to whether the appellant's guaranteed fundamental right

under Article 20 (2) has been infringed? Article 20 (2) of

the Constitution provides that no person shall be prosecuted

and punished for the same offence more than once.

14. Article 20 (2) embodies a protection against a second

trial and conviction for the same offence. The fundamental

right guaranteed is the manifestation of a long struggle by

the mankind for human rights. A similar guarantee is to be

found in almost all civilised societies governed by rule of

law. The well known maxim `nemo delset bis vexari pro

eadem causa' embodies the well established common law

rule that no one should be put on peril twice for the same

offence. BLACKSTONE referred to this universal maxim of

the common law of England that no man is to be brought

into jeopardy of his life more than once for the same

offence.
 18

15. The fundamental right guaranteed under Article 20 (2)

has its roots in common law maxim nemo debet bis vexari -

a man shall not be brought into danger for one and the

same offence more than once. If a person is charged again

for the same offence, he can plead, as a complete defence,

his former conviction, or as it is technically expressed, take

the plea of autrefois convict. This in essence is the common

law principle. The corresponding provision in the American

Constitution is enshrined in that part of the Fifth Amendment

which declares that no person shall be subject for the same

offence to be twice put in jeopardy of life or limb. The

principle has been recognised in the existing law in India and

is enacted in Section 26 of the General Clauses Act, 1897

and Section 300 of the Criminal Procedure Code, 1973. This

was the inspiration and background for incorporating sub-

clause (2) into Article 20 of the Constitution. But the ambit

and content of the guaranteed fundamental right are much

narrower than those of the common law in England or the

doctrine of `double jeopardy' in the American Constitution.
 19

16. In Maqbool Hussain vs. The State of Bombay1, this

Court explained the scope of the right guaranteed under

Article 20 (2) and as to what is incorporated in it as "within

its scope the plea of autrefois convict as known to the

British jurisprudence or the plea of double jeopardy as it

known to the American Constitution but circumscribed it by

providing that there should be not only a prosecution but

also a punishment in the first instance in order to operate as

a bar to a second prosecution and punishment for the same

offence." That in order for the protection of Article 20 (2)

to be invoked by a person there must have been a

prosecution and as well as punishment in respect of the

same offence before a court of law of competent jurisdiction

or a tribunal, required by law to decide the matters in

controversy judicially on evidence. That the proceedings

contemplated therein are in the nature of criminal

proceedings before a court of law or a judicial tribunal and

the prosecution in this context would mean an initiation or

1
 (1953) SCR 730
 20

starting of the proceedings of a criminal nature in

accordance with the procedure prescribed in the statute

which creates the offence and regulates the procedure. This

principle is reiterated in S.A. Venkataraman vs. The

Union of India & Anr.,2 wherein this Court observed that

the words "prosecuted or punished" are not to be taken

distributively so as to mean prosecuted or punished. Both

the factors must co-exist in order that the operation of the

clause may be attracted."

17. What is the meaning of expression used in Article 20

(2) "for the same offence"? What is prohibited under Article

20 (2) is, the second prosecution and conviction must be for

the same offence. If the offences are distinct, there is no

question of the rule as to double jeopardy being applicable.

In Leo Roy Frey vs. Superintendent District Jail,

Amritsar3, petitioners therein were found guilty under

Section 167 (8) of the Sea Customs Act and the goods

recovered from their possession were confiscated and heavy
2
 (1954) SCR 1150
3
 (1958) SCR 822
 21

personal penalties imposed on them by the authority.

Complaints thereafter were lodged by the authorities before

the Additional District Magistrate under Section 120B of the

Indian Penal Code read with provisions of the Foreign

Exchange Regulations Act, 1947 and the Sea Customs Act.

The petitioners approached the Supreme Court for quashing

of the proceedings pending against them in the court of

Magistrate inter alia contending that in view of the

provisions of Article 20 (2) of the Constitution they could not

be prosecuted and punished twice over for the same offence

and the proceedings pending before the Magistrate violated

the protection afforded by Article 20 (2) of the Constitution.

This Court rejected the contention and held that criminal

conspiracy is an offence under Section 120B of the Indian

Penal Code but not so under the Sea Customs Act, and the

petitioners were not and could not be charged with it before

the Collector of Customs. It is an offence separate from the

crime which it may have for its object and is complete even

before the crime is attempted or completed, and even when
 22

attempted or completed; it forms no ingredients of such

crime. They are, therefore, quite separate offences. The

Court relied on the view expressed by the United States,

Supreme Court in United States vs. Rabinowith4. In The

State of Bombay vs. S.L. Apte5, this Court laid down the

law stating that if the offences were distinct there is no

question of the rule as to double jeopardy as embodied in

Article 20 (2) of the Constitution being applicable. It was the

case where the accused were sought to be punished for the

offence under Section 105, Insurance Act, after their trial

and conviction for the offence under Section 409, Penal

Code, this Court held that they were not sought to be

punished for the same offence twice but for two distinct

offences constituted or made up of different ingredients and

therefore the bar of Article 20 (2) of the Constitution or

Section 26 of the General Clause Act, 1897, was not

applicable. This Court made it clear that the emphasis is not

on the facts "alleged in the two complaints but rather on the

4
 (1915) 238US 78.
5
 (1961) 3 SCR 107
 23

ingredients which constitute the two offences with which a

person is charged." The ratio of the case is apparent from

the following:

 "To operate as a bar the second prosecution
 and the consequential punishment thereunder,
 must be for `the same offence'. The crucial
 requirement therefore for attracting the Article
 is that the offences are the same, i.e., they
 should be identical. If, however, the two
 offences are distinct, then notwithstanding that
 the allegations of fact in the two complaints
 might be substantially similar, the benefit of
 the ban cannot be invoked. It is, therefore,
 necessary to analyse and compare not the
 allegations in the two complaints but the
 ingredients of the two offences and see whether
 their identity is made out."

That the test to ascertain is whether two offences are the

same and not the identity of the allegations but the identity

of the ingredients of the offences.

 It is thus clear that the same facts may give rise to

different prosecutions and punishment and in such an event

the protection afforded by Article 20 (2) is not available. It

is settled law that a person can be prosecuted and punished

more than once even on substantially same facts provided

the ingredients of both the offences are totally different and
 24

they did not form the same offence. In Bhagwan Swarup

vs. State of Maharashtra6, the accused was convicted with

regard to a conspiracy to commit criminal breach of trust in

respect of the funds of one Jupiter company. There was

another prosecution against the accused for the conspiracy

to lift the funds of another company, though its object was

to cover the fraud committed in respect of the Jupiter

company. This Court held that the defalcations made in the

Jupiter may afford a motive for new conspiracy, but the two

offences are distinct ones. Some accused may be common

to both of them, "some of the facts proved to establish the

Jupitor conspiracy may also have to be proved to support

the motive for the second conspiracy. The question is

whether that in itself would be sufficient to make the two

conspiracies the one and the same offence. The ingredients

of both the offences are totally different and do not form the

same offence within the meaning of Article 20 (2) of the

Constitution and, therefore, that Article has no relevance."

6
 AIR 1965 SC 682
 25

18. In State of Rajasthan vs. Hat Singh & Ors.7, this

Court held that the Rajasthan Sati (Prevention) Act, 1987

provided for different offences and punishment for

glorification of sati and for violation of prohibitory order

against glorification of sati. They are not the same offences.

While Section 5 of the said Act makes the commission of an

act an offence and punishes the same; the provisions of

Section 6 are preventive in nature and make provision for

punishing contravention of prohibitory order so as to make

the prevention effective. The two offences have different

ingredients. This Court held:

 "It is, therefore, concluded that in a given case,
 same set of facts may give rise to an offence
 punishable under Section 5 and Section 6 (3)
 both. There is nothing unconstitutional or
 illegal about it."

19. This appears to be the consistent view of the Supreme

Court of the United States. In T.W. Morgan vs. Alfonso J.

Devine @ Ollie Devine8, the U.S. Supreme Court observed

that the court has settled that the test of identity of
7
 (2003) 2 SCC 152
8
 (1915) 237 U.S. 1153
 26

offences is whether the same evidence is required to sustain

them; if not, then the fact that both charges relate to and

grow out of one transaction does not make a single offence

where two are defined by the statutes.

20. In United States vs. Vito Lanza9, it is held that an act

with respect to intoxicating liquor which is denounced as a

crime by both the National and State sovereignties may be

punished under the law of each sovereignty without

infringing the provision of the 5th Amendment to the Federal

Constitution against double jeopardy for the same offence. It

is observed:

 "An act denounced as a crime by both National
 and State sovereignties is an offence against
 the peace and dignity of both, and may be
 punished by each ..... We have here two
 sovereignties, deriving power from different
 sources, capable of dealing with the same
 subject matter within the same territory. Each
 may, without interference by the other, enact
 laws to secure prohibition, with the limitation
 that no legislation can give validity to acts
 prohibited by the Amendment. Each
 government, in determining what shall be an
 offence against its peace and dignity, is

9
 (1922) 260 U.S. 314
 27

 exercising its own sovereignty, not that of the
 other."

21. Shri K.T.S. Tulsi, learned senior counsel in the present

case before us mainly contended that the facts based on

which the appellant (Monica Bedi) was prosecuted and

punished by a competent court of jurisdiction at Lisbon and

the facts based on which prosecution has been initiated

resulting in conviction are the same and, therefore, the

conviction of the appellant is in the teeth of Article 20 (2) of

the Constitution and Section 300 of the Code of Criminal

Procedure. The submission is not well founded for the

simple reason that the same set off facts can constitute

offences under two different laws. An act or an omission

can amount to and constitute an offence under IPC and at

the same time constitute an offence under any other law. It

needs no restatement that the bar to the punishment to the

offender twice over for the same offence would arise only

where the ingredients of both the offences are the same.
 28

22. The question that falls for our consideration is, whether

the appellant can be said to have satisfied all the conditions

that are necessary to enable her to claim the protection of

Article 20 (2) of the Constitution. The charges upon which

the appellant has been convicted now, for the charges under

the Indian Penal Code, we will presume for our present

purpose that the allegations upon which these charges are

based, proved, resulting in conviction and punishment of the

appellant are substantially the same which formed the

subject matter of prosecution and conviction under the penal

provisions of Portugal law. But we have no doubt to hold

that the punishment of the appellant is not for the same

offence.

23. Be that as it may, there is no factual foundation laid as

such by the appellant taking this plea before the trial court.

Nothing is suggested to the Investigating Officer or to any of

the witnesses that she is sought to be prosecuted and

punished for the same offence for which she has been
 29

charged and convicted by a competent court of jurisdiction

at Lisbon. She did not even make any such statement in her

examination under Section 313 Cr.P.C. It is true that the

fundamental right guaranteed under Article 20 (2) of the

Constitution is in the nature of an injunction against the

State prohibiting it to prosecute and punish any person for

the same offence more than ones but the initial burden is

upon the accused to take the necessary plea and establish

the same.

24. In Halsbury's Laws of England, 2nd Edition, Volume-IX,

the law is succinctly summarised on this aspect of the

matter as:

 "If the defendant pleads autrefois convict or
 autrefois acquit, the prosecution replies or
 demurs. If the prosecution replies, which is the
 usual course, a jury is sworn to try the issue(x).
 The onus of proving the plea is on the defendant
 (a). He may prove it by producing a certified
 copy of the record or proceedings of the alleged
 previous conviction or acquittal (b), and showing
 by such copy or by other evidence, if necessary,
 that he has been convicted or acquitted of the
 same, or practically the same, offence as that on
 which he has been arraigned (c), or that he
 30

 might on his former trial have been convicted of
 the offence on which he has been arraigned (d).
 The question for the jury on the issue is whether
 the defendant has previously been in jeopardy in
 respect of the charge on which he is arraigned
 (e), for the rule of law is that a person must not
 be put in peril twice for the same offence. The
 test is whether the former offence and the
 offence now charged have the same ingredients
 in the sense that the facts constituting the one
 are sufficient to justify a conviction of the other,
 not that the facts relied on by the Crown are the
 same in the two trials (f). "

25. However, having regard to the nature of the

guaranteed right we have examined the judgment passed by

a Constitutional Court, Lisbon ( a typed copy of the same

made available by the learned senior counsel for the

appellant - Monica Bedi which we believe to be a true copy)

does not support the plea of the appellant. The

Constitutional Court while considering the issue of

extradition of the appellant and the nature of the trial

undergone by her in Portugal observed:

 [*]

 "It is a fact that the appellant has been trialled
 in Portugal for committing an offence provided
 and punishable under article 256 of the penal
 31

 code. However, should any facts be found in
 that process and in that trial that would release
 her of any guilt regarding offences based upon
 which she is wanted by the requesting state,
 then it is not acceptable by means of a
 restrictive and formal interpretation of a
 principle which is deemed to assume wider
 configurations to authorize her extradition to
 trial her for facts strongly linked and which may
 even coincide with those same offences.

 In other words, it is not acceptable and it
 cannot be admitted that the appellant has been
 trialled and convicted in Portugal for the
 commission of the offence of use of forged
 documents, namely in a decision which
 revealed in the analysis of the facts regarding
 the attainment of such documents (allegedly
 subsumed by India in the offences of corruption
 and association) that the appellant was not
 involved in those fact. Furthermore, it cannot
 be admitted that her extradition is authorized in
 order to trial her for committing such act.

 Extradition process which brings in contact a
 variety of legal systems and different forms of
 legal classification and of behaviour
 punishments, but which does not allow going
 deeper in those laws, as well as in the evidence
 based upon which the requests for extradition
 were made requires a wider interoperation of
 the principle of ne bis idem."

It is further observed:
 32

"The Indian Union claims extradition of the
appellants to trial her for the commission of an
offence of criminal conspiracy. We consider that
this offence has no correspondence in our legal
and penal system and that it is not the object
of an autonomous incrimination. As a matter of
fact, it constitutes a from that could be
classified as joint authorship;

...As a matter of fact, we consider that such
arguments have no legal basis. Because the
requesting state wants at any cost the
appellants extradition, it is clear that it is
justifying its request by stating that criminal
conspiracy as opposed to what the person to be
extradited claims constitutes an autonomous
incrimination.

However, careful analysis of the original version
of article 120 B of the Indian Penal Code
(included in the records, but attached herewith
as documents no. 1 and which is incorrectly
translated into Portuguese) allows one to
conclude, with safety, that the type of
conspiracy described therein as being the
conduct of someone who commits an offence
associated with someone else (complicit), is not
coincident with the incorporation of a stable
organization, hierarchically defined and whose
object is the commission of offences.

...Given that our judiciary authorities are
convinced that the question under consideration
is the charge against the appellant regarding
offence subsumable under an offences of
criminal association which does not correspond
to the Indian charges.
 33

 ...it is not up to the constitutional court to
 interpret and set out the meaning of any
 provisions contained in the Indian Penal Code
 and establish on a final basis the scope of
 criminal conspiracy, given that this would
 transcend the object of constitutional rules
 control.

 Taking into consideration the reasons stated in
 the appealed decision, one cannot accept the
 argument that the appealed courts
 interpretation of article 31, no. 2 of law 144/99
 of 31st August was in the sense that the judge
 is not obliged to substantiate and explain (in
 the decision to extradite someone claimed for
 the commission of offences which do no fall
 within the range of offences provided under our
 legal system) the reasons why the offence
 should be appealed decision, the appellant
 could not have raised this unconstitutionality
 based on the different of legal qualification of
 the offences that the was charged with by both
 legal systems in concurrence. As a matter of
 fact, the question under consideration is the
 charge with different offences, one should note
 that, besides the fact that this statement does
 not faithfully reproduce what is said in the
 summary decision, the two subsequent
 paragraphs demonstrate that the real problem
 does not involve the facts but rather the
 different legal classification thereof."

[* There are number of typographical errors and mistakes in
construction of sentences and we did not correct the same
and extracted as it is from the copy supplied.]
 34

26. In the light of these findings and conclusions reached

by the Constitutional Court at Lisbon and on a careful

consideration of the entire matter and the facts placed

before us, we are of the considered opinion that the

appellant's plea of double jeopardy is wholly untenable and

unsustainable. This point is accordingly answered against

the appellant.

Merits:

27. Now we shall proceed to consider as to whether the

courts below committed any error in convicting and

sentencing the appellant for the charged offences? Is there

no evidence against the appellant as contended by the

learned senior counsel? It is fairly settled that this Court in

exercise of its jurisdiction under Article 136 of the

Constitution of India normally does not interfere with the

concurrent findings of facts arrived at by the courts below

on proper appreciation of evidence. It is not the function of

this Court to re-appreciate the evidence and substitute the
 35

findings for that of the courts below unless it is clearly

established that the findings and the conclusions so arrived

at by the courts below are perverse and based on no

evidence.

28. The simple case of the prosecution is that all the

appellants entered into a conspiracy in order to secure a

passport in the assumed name of Sana Malik Kamal, for the

benefit of Monica Bedi so as to enable her to utilize the same

to leave the country and travel abroad. There is no

controversy whatsoever that Monica Bedi travelled abroad

on the strength of the passport secured by her in the

assumed name. She entered Portugal with the aid of

passport standing in the name of Sana Malik Kamal for

which she has to face the prosecution and suffer conviction

and sentence in Portugal.

29. It is evident from the record that the involvement of

the appellants is at two stages. Stage one is where Monica

Bedi (A-3) and Mohd. Yunis (A-7) are involved in the pre-
 36

passport application at the threshold and even before the

preparation of application seeking the passport in the

assumed name. Stage two is the involvement of Monica Bedi

(A-3), Shaik Abdul Sattar (A-5) and D. Gokari Saheb (A-8)

after the submission of passport application before the

authorities. Exhibit P2 is the passport application submitted

in the assumed name of Sana Malik Kamal which contains

the photograph of Monica Bedi (A-3). Essential

requirements for obtaining the passport are: (1) passport

application; (2) proof of residence and (3) date of birth

certificate as spoken to by PWs. 2, 3, 21 and 31. How these

documents are obtained for the benefit of Monica Bedi has

been clearly brought on record through a number of

witnesses whose evidence remained unimpeached. It is

Mohd. Yunis (A-7), the Mandal Revenue Inspector who

verified the residence particulars of Sana Malik Kamal on the

instructions of PW-5, Mandal Revenue Officer, Kurnool and

submitted a false verification report based on which exhibit

P9 residence certificate was issued by PW-5. PW-17 on
 37

requisition from C.B.I officials once again got verified and

issued exhibit P30 certificate to the effect that no person by

name Sana Malik Kamal resides in the house as earlier

submitted by Mohd. Yunis (A-7). PW-37 is the Investigating

Officer who in his evidence stated that he verified the

particulars of occupants of the said house in the presence of

PW-27 (D.V. Ratnamaiah), Assistant Superintendent of Post

Offices, Kurnool and found no such person named Sana

Malik Kamal ever resided therein. It is based on this

evidence the trial court and appellate court came to the right

conclusion that the prosecution established its case that it is

Mohd. Yunis (A-7) who gave false verification based on

which exhibit P9 residence certificate was issued by PW-5 in

the name of Sana Malik Kamal. The trial court convicted

Mohd. Yunis (A-7) for the offence under Section 468 IPC

which reads as under:

 "468. Forgery for purpose of cheating. -
 Whoever commits forgery, intending that the
 document or electronic record forged shall be
 used for the purpose of cheating, shall be
 38

 punished with imprisonment of either
 description for a term which may extend to
 seven years, and shall also be liable to fine."

Section 463 defines forgery, which reads as under:

 "463. Forgery.- Whoever makes any false
 documents or false electronic record or part of a
 document or electronic record, with intent to
 cause damage or injury, to the public or to any
 person, or to support any claim or title, or to
 cause any person to part with property, or to
 enter into any express or implied contract, or
 with intent to commit fraud or that fraud may
 be committed, commits forgery."

30. The High Court came to the conclusion that in

submitting the false verification report in respect of

residence of Sana Malik Kamal he may not have been aware

and knew that the certificate so obtained would be used for

the purpose of securing the passport in the assumed name

of Sana Malik Kamal. At any rate there is no evidence on

that aspect of the matter. The High Court also came to the

conclusion that by the time Mohd. Yunis (A-7) submitted a

false verification there is nothing on record that he was

hand in glove with the other accused for the purpose of
 39

cheating. Be it noted that the High Court confirmed the

acquittal of A-7 of the charge under Section 120B IPC. The

High Court, accordingly, found that the proper offence made

against him would be one for making forged document

simplicitor punishable under Section 465 IPC. In our

considered opinion, the High Court was not justified in

convicting Mohd. Yunis (A-7) at all for it had found no case

against the appellant made out under Section 120B IPC and

further found that there is no evidence to assume that he

was hand in glove with the other accused for the purpose of

cheating. That there is no evidence that A-7 prepared false

document with intent to cause damage or injury, to the

public or to any person, or to support any claim or title, or to

cause any person to part with property, or to enter into any

express or implied contract, or with intent to commit fraud.

The ingredients of Section 463 are not satisfied. In such an

event the conviction of the appellant under Section 465 IPC

is unsustainable.
 40

31. That so far as D. Gokari Saheb (A-8) is concerned

there is a clear evidence which has been properly

appreciated by the courts below that he who took the article

(envelop contained the passport) addressed to Sana Malik

Kamal from PW-11 representing that he knew the addressee

and deliver the same. The said article was actually

entrusted to PW-11 for its delivery but D. Gokari Saheb (A-

8) took the same from PW-11 for delivery to Sana Malik

Kamal - assumed name of Monica Bedi (A-3). The courts

below found that D. Gokari Saheb (A-8) was aware of the

contents of the article. It is under those circumstances the

courts below came to the right conclusion that evidence

available on record clearly establish that he participated in

the conspiracy in securing the passport for Monica Bedi in

the assumed name of Sana Malik Kamal. Thus the

conviction of D. Gokari Saheb (A-8) for the charged

offences is accordingly upheld. We do not find any reason

whatsoever to interfere with the view taken by the High

Court. However, the sentence of one year rigorous
 41

imprisonment under each count awarded while maintaining

the fine imposed by the trial court is reduced to that of 6

months rigorous imprisonment under each count while

maintaining the fine amount.

32. Shaik Abdul Sattar (A-5) is the Head Constable who

submitted exhibit P15 report. PW-7, PW-8 and PW-14 are

the material witnesses examined by the prosecution to

prove the accusations leveled against A-5. PW-7 at the

relevant time was Junior Assistant in the District Police

Office, Kurnool who speaks about entrustment of the

verification of the passport application in respect of Sana

Malik Kamal to A-5. He also speaks about A-5 submitting

Exhibit P15 inquiry report together with statements of

persons purported to have been recorded by him in exhibit

P16 and P17. There is absolutely nothing on record to

disbelieve the evidence of PW-7 who stated in his evidence

that A-5 submitted exhibit P15 report knowing it to be a

false one apart from certifying that Sana Malik Kamal was

residing at that particular house in Kurnool and was not
 42

involved in any civil and criminal cases and there was

nothing adverse against her. PW-8 was working as Inspector

of Police, District Special Branch, Kurnool who prepared

exhibit P18 letter on the basis of exhibit P15 inquiry report

submitted by A-5. PW-14 is the Sub-Inspector, District

Special Branch, Kurnool who testified that A-5 submitted

exhibit P15 report and it bears signature of A-5. The courts

below held that the evidence of PW-7, PW-8 and PW-14 is

cogent and consistent which in clear and categorical terms

prove the fact that A-5 is the person who verified the

passport application particulars of Sana Malik Kamal and

submitted exhibit P15 inquiry report along with exhibit P16

and exhibit P17 enclosures. There cannot be any doubt

whatsoever that A-5 submitted a false report in order to

enable Monica Bedi to secure a passport for herself in the

assumed name of Sana Malik Kamal. His conviction for the

charged offences is accordingly upheld. The High Court

however, reduced the sentence awarded by the trial court to

one year rigorous imprisonment under each count while
 43

maintaining the fine imposed by the trial court. The

sentence awarded under Section 13 (1) (d) r/w 13 (2) of

Prevention of Corruption Act has been confirmed. Having

regard to the facts and circumstances of the present case,

we however, reduce the sentence to that of six months

rigorous imprisonment under each count while maintaining

the fine imposed by the trial court and the sentence to suffer

imprisonment, in default, of payment of fine. Sentences are

directed to run concurrently.

Case of Monica Bedi - Appellant in Criminal Appeal No.

782/2007:

33. So far as the appellant - Monica Bedi is concerned she

is involved in the conspiracy as proved at both stages i.e.

pre-passport application stage and post-passport application

stage. The conspiracy itself has been hatched only with a

view to secure a passport for Monica Bedi in the assumed

name of Sana Malik Kamal. We do not find any merit in the

submission of Shri Tulsi, learned senior counsel that there is
 44

no evidence whatsoever against Monica Bedi to prove her

involvement for the offence punishable under Sections 120B,

419 and 420 IPC. The sequence of events as unfolded by

the evidence, which we do not want to recapitulate once

again as we have noticed the same in detail in the preceding

paragraphs, clearly prove the charges levelled against

Monica Bedi. It is for her benefit that the entire conspiracy

has been hatched involving more than one individual in

order to secure a passport for her benefit enabling her to

travel abroad in the assumed name of Sana Malik Kamal.

There is no material based on which this Court is to differ

with the findings and conclusions concurrently arrived at by

the courts below.

 Shri Tulsi, however, reiterated the submission which he

made before the High Court that exhibit P50 is a Photostat

copy of the passport in the name of Sana Malik Kamal and

the same is inadmissible document as it is not authenticated

by legal keeper as provided under Section 78 (6) of the

Indian Evidence Act. The submission was that based on
 45

such inadmissible document no prosecution could be

launched and once it is to be held that the said document is

not admissible the whole case of the prosecution collapses

like a pack of cards. The High Court after elaborate

consideration of the matter came to the right conclusion that

Section 78 (6) of the Evidence Act, 1872 deals with public

document of any other class in a foreign country. In the

present case, the original of exhibit P50 is the passport

issued by the competent authorities in this country and,

therefore, Section 78 (6) has no application whatsoever to

the facts of this case. The issuance of original of exhibit P50

passport is clearly proved. It is based on that passport

Monica Bedi travelled abroad and entered Portugal for which

she has to face a prosecution and suffer conviction and

sentence. The prosecution cannot be held to be vitiated.

We accordingly reject the contention and uphold the

conviction of the appellant for the offence punishable under

Sections 120B, 419 and 420 IPC. The High Court, however,

reduced the sentence of imprisonment imposed on the
 46

appellant - Monica Bedi (A-3) as noticed in the preceding

paragraphs. The High Court also held that she is entitled for

set off of the periods of detention suffered by her in Lisbon

i.e. from 18.9.2004 to 4.6.2005 and 3.11.2005 to

10.11.2005.

 However, having regard to the facts and circumstances

of the case and the fact that she had undergone more than

2 = years of sentence, we consider it appropriate to reduce

the sentence to that of already undergone by her while

maintaining fine amount imposed by the courts below.

34. In the view we have taken it is not necessary to go into

the question as to the interpretation of Section 428 Cr.P.C

and her entitlement to set off against the sentence imposed

on her.

Conclusion:

35. Criminal Appeal NO. 782 of 2007 ( Monica Bedi -

A-3)
 47

 For all the aforesaid reasons, we confirm the conviction

of Monica Bedi (A-3) under Sections 120B, 419 and 420 IPC.

The sentence awarded under each count directed to run

concurrently is reduced to that of the period already

undergone by her while maintaining the sentence of fine

awarded by the courts below. The bail bonds shall stand

cancelled.

 The appeal is, accordingly, partly allowed.

Criminal Appeal NO. 784 of 2007 ( Shaik Abdul Sattar

- A-5)

 The conviction of Shaik Abdul Sattar (A-5) under

Sections 120B, 419 r/w 109, 420 r/w 109 and 468 IPC and

as well as under Section 13 (1) (d) r/w 13(2) of the

Prevention of Corruption Act is, accordingly, upheld.

However, the sentence awarded under each count is reduced

to that of six months rigorous imprisonment while

maintaining the fine imposed by the courts below. Sentences
 48

are directed to run concurrently. He shall surrender before

the trial court to serve the remaining sentence, if any.

 The appeal is, accordingly, partly allowed.

Criminal Appeal NO. 1357 of 2007 ( Mohd. Yunis - A-

7)

 Mohd. Yunis (A-7) is acquitted for the offence under

Section 465 IPC and sentence awarded is set aside. The bail

bonds shall stand cancelled.

 The appeal is, accordingly, allowed.

Criminal Appeal NO. 783 of 2007 ( D. Gokari Saheb -

A-8)

 The conviction of D. Gokari Saheb (A-8) under

Sections 120B, 419 r/w 109, 420 r/w 109 and 468 IPC and

as well as under Section 13 (1) (d) r/w 13(2) of the

Prevention of Corruption Act is, accordingly, upheld.

However, the sentence awarded under each count is reduced

to that of six months rigorous imprisonment while
 49

maintaining the fine imposed by the courts below. Sentences

are directed to run concurrently. He shall surrender before

the trial court to serve the remaining sentence, if any.

 The appeal is, accordingly, partly allowed.

 ..................................
 ........J.
 (B. SUDERSHAN REDDY) ..........................................J.
 (SURINDER SINGH NIJJAR)
New Delhi,
November 09, 2010.

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