Delhi District Court
State vs : Nand Kishore & Ors. on 22 January, 2015
IN THE COURT OF SH. SUDHANSHU KAUSHIK : ACMM-01 :
CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI
State Vs : Nand Kishore & Ors.
FIR No : 06/1996
U/s : 420/468/471/120B IPC &
61 Excise Act
PS : Patel Nagar (Crime)
Unique Identification No. 02401R0014801996
Date of Institution: 19.03.1997
Date of Judgment reserved on: 23.12.2014
Date of Judgment: 22.01.2015
Brief details of the case
A. Sl. No. of the case 000190/CR
B. Offence complained of
or proved U/s 420/468/471 IPC &
Section 61 Excise Act read
with Section 120B IPC
C. Date of Offence 03.01.1996
D. Name of the complainant Sh. Kishan Kumar,
Distt. Excise Officer (IMFL)
E. Name of the accused (1) Nand Kishore
S/o Murari Lal
R/o 4/2741, Gali No.4, Bihari
Colony, Shahadra, Delhi
(2) Rambilas Rai
S/o Jaganath Rai
R/o L-45, Vijay Vihar,
New Delhi
(3) Bhuvneshwar Pandey
S/o Shiv Dev Pandey
R/o 81A, Ibrahim Pur Colony,
Delhi
(4) Shiv Narain
S/o Narayan Prasad
R/o 3/3, Model Town-III, Delhi
(5) Vijender Singh
S/o Mangi Ram
R/o Village Kair, Delhi-43
FIR No.06/1996 State Vs Nand Kishore & Ors. Page 1 of 18
F. Plea of the accused Pleaded not guilty
G. Final order Acquitted
H. Date of Order 22.01.2015
Judgment
On the accusation of entering into a criminal conspiracy with the
common object of procuring unauthorized liquor and selling it from a
Government Vend of Delhi State Civil Supplies Corporation (DSCSC)
(hereinafter referred to as ' Vend' ) by preparing and using forged documents as
genuine, the Manager and Clerk alongwith the laborers working at the liquor
Vend were sent up to face trial for committing offences punishable under
Section 420/468/471 IPC and Section Section 61 of Excise Act read with
Section 120B IPC.
Brief Facts as disclosed in the charge-sheet
2. The case of prosecution is that on 03.01.1996, at around 04.00 PM, Krishan Kumar (PW-5), District Excise Officer alongwith officials of Enforcement Department carried out surprise inspection of a liquor Vend of DSCSC located at Shop No.8, South Patel Nagar, Delhi and found that the officials of the Vend have unauthorizedly received and kept for sale 15 cases of Goldee whiskey. It was found that these cases were received on the basis of forged transport permit and invoice. Accused Shiv Narayan, who was working as Manager of the Vend and Nand Kishore, working as Clerk, were arrested alongwith accused Rambilas Rai, Bhuvneshwar Pandey and Vijender Singh, FIR No.06/1996 State Vs Nand Kishore & Ors. Page 2 of 18 who used to work as laborers in the Vend. In the said background, present case bearing FIR No.06/1996 under Section 420/468/471 IPC and Section 61 of Excise Act was registered at Police Station Patel Nagar. After registration of FIR, Insp. Surender Kumar Gulia (PW-8) arrived at the spot alongwith Ct. Randhir and carried out the necessary investigation. Site-plan was prepared and cases of unauthorizedly kept liquor were seized. Samples were drawn and serial numbers were alloted to the seized cases which were sealed with the seal of ' SKG' . The forged transport permit (Ex.PW-5/A) and invoice in triplicate (Ex.PW-8/A) were seized alongwith the copies of relevant registers kept at the Vend. Statement of witnesses were recorded and after completion of investigation, charge-sheet was put to the court.
3. Copies of the charge-sheet were supplied to all the accused persons and vide order dated 16.04.2003, charges under Section 420/468/471 IPC and Section 61 Excise Act read with Section 120B IPC were framed against them to which they pleaded not guilty and claimed trial.
Witnesses Examined
4. Ten prosecution witnesses were examined.
● Officials from Excise Department/Vend PW-1 Om Prakash (the then LDC, Excise Office, Vikas Bhawan). PW-5 Krishan Kumar(Complainant/District Excise Officer, IMFL). PW-6 D.K.Gupta (Inspector, Excise Department, Vikas Bhawan). PW-7 Kishan Gopal Yadav (Asstt. Manager at the Vend).
PW-9 Teli Ram (Asstt. Manager - Hqrs. Record Room, DSCSC). FIR No.06/1996 State Vs Nand Kishore & Ors. Page 3 of 18 Witnesses of Investigation PW-2 SI Ram Phool (Witness of seizure memo of documents).
PW-3 Insp. Manoj Kumar (Second Investigating Officer).
PW-4 SI Vidyanand (Duty Officer).
PW-8 Insp. Surender Kumar Gulia (First Investigating Officer).
5. Separate statements of accused persons were recorded under Section 313 Cr.P.C wherein they denied all the incriminating evidence. It was the common stand of accused persons that the liquor seized by the officials was received by them under a bonafide belief that the transport permit was genuine. Accused Nand Kishore stated that he had no means or authority to check the seal/signatures on the transport permit to ascertain its validity. Accused Shiv Narayan also took a similar stand mentioning that he was not authorized to check the genuineness of transport permit issued by concerned authority. Two defence witnesses were examined.
DW-1 Mahinder Singh (Department of Civil Supplies) stated that his department does not issue any specimen seal to the Incharge of a Vend for verifying the genuineness of transport permit. He stated that the Manager of a Vend can not refuse to accept the supply of liquor, in case, permit is issued from the Excise Department.
DW-2 Hari Mohan Joshi (Asstt. Manager, DSCSC) produced report of departmental inquiry conducted against all the accused persons and mentioned that they have been exonerated.
Arguments FIR No.06/1996 State Vs Nand Kishore & Ors. Page 4 of 18
6. I have heard the arguments advanced at bar by Ld. APP for State and Ld. Defence Counsel and have perused the record.
7. It has been argued by the Ld. APP that in case of criminal conspiracy, there is hardly any possibility of bringing on record direct evidence suggesting involvement of accused persons and the conspiracy is to be inferred from the acts of the accused persons done by them in pursuance of an apparent common criminal object. He has submitted that there is overwhelming evidence on record to prove that all the accused entered into a criminal conspiracy to sell unauthorized liquor from the Vend and share profit amongst themselves. He argued that recovery of cases containing bottles of unauthorized liquor suggest that these cases were kept at the Vend only for the purpose of sale. He contended that although, the forged transport permit and invoice were not sent for examination to the FSL but there is sufficient evidence to suggest that accused persons used these documents as genuine. On the force these contentions, Ld. APP has prayed that all the accused should be convicted.
8. On the other hand, Ld. Defence Counsel has countered the arguments of Ld. APP arguing that charges have not been proved. He argued that evidence led by the prosecution goes on to show that relevant entries about the supply of liquor were made in L-2 register and daily sales register. He contended that the fact that relevant entries were carried out in the registers maintained at the Vend demonstrate the absence of mens-rea. He argued that in case, the accused persons would have hatched conspiracy to sell unauthorized liquor from the Vend and share the profit, then, in all possibilities, they would FIR No.06/1996 State Vs Nand Kishore & Ors. Page 5 of 18 not have carried out the entires in the relevant register. He submitted that investigation was not carried out to ascertain the identity of the person who might have prepared the forged transport permit and this loop hole has casted aspersion over the fairness of investigation. He stated that the approved pattern of labels were not produced during trial for comparing with the labels found on the seized bottles. He argued that there are contractions in the testimony of witnesses and infirmities in investigation. He argued that accused persons should be acquitted as they have been exonerated in the departmental proceedings. Reliance has been placed by the counsel on " Ramesh Kumar Vs State" 1995 CC Cases 342 (High Court of Delhi).
Brief reasons for decision
9. I have perused the record in the light of respective arguments.
10. All the accused persons have been charged of committing offences punishable under Section 420/468/471/ IPC and Section 61 of Excise Act read with Section 120B IPC. Section 468 of IPC provides punishment for the offence of committing forgery for the purpose of cheating. The definition of forgery has been provided under Section 463 IPC while Section 468 IPC defines the meaning of making a false document. In order to understand the offence of forgery, both these sections have to be read together. Section 463 IPC states that whosoever makes any false document 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 FIR No.06/1996 State Vs Nand Kishore & Ors. Page 6 of 18 contract or with intent to commit fraud or that fraud may be committed, commits forgery. Section 464 IPC states when a person can be said to have made a false document. The first clause of the section provides that a person makes a false document, if he dishonestly or fraudulently makes, signs, seals or executes a document with an intention of causing it to be believed that such document or part of document was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority, he know that it was not made, sealed, executed or affixed. The second clause of 464 IPC states that in certain conditions provided therein, the alteration of a document would amounts to making of false document while the third clause provides for a situation where a person causes any other person to sign, seal, execute or alter a document knowing that such person does not know the contents of documents because of incapacity or by the reason of deception practiced upon him.
11. Section 471 IPC provides punishment for a person who fraudulently or dishonestly uses as genuine any document or any electronic record which he knows or has reason to believe to be a forged document. It further provides that, in case, it is proved that a person has knowingly used a forged document as genuine, then, he shall be punished in the same manner as if he had forged such document. Thus, as required under most of the offences punishable under Indian Penal Code, there are two essential ingredients to commit the offence punishable under Section 471 IPC. The first ingredient is the actus part which means that a person must have used a forged document as FIR No.06/1996 State Vs Nand Kishore & Ors. Page 7 of 18 genuine and he must have done so fraudulently or dishonestly. The second ingredient, which constitutes mens-rea, is that the person using the forged document as genuine should either know or has reasons to believe that the document is forged. It is only when these two ingredients have been proved that it can be concluded that offence under Section 471 IPC has been committed.
12. Now, let us peruse the record to see whether charges against the accused persons have been proved. The argument of the defence counsel that accused persons should be acquitted because they have been exonerated in departmental proceedings does not hold ground. The proceedings before a criminal court are entirely independent and the outcome of these proceedings would not be affected by the decision in the departmental proceedings. The standard of proof required in criminal court and departmental proceedings is different. I have gone through the judgment in " Ramesh Kumar' s case (supra) "
on which reliance has been placed by the defence. The judgment is applicable in the facts and circumstances of that particular case. The present case is on a different footing. In the said case, charge under Section 7 of Essential Commodities Act was framed on account of discrepancy found in quantity of edible oil when the actual stock was compared with the entires made in the stock register. In the present case, charges under Section 420/468/471 IPC and Section 61 of Excise Act read with Section 120B IPC have been framed. The decision was given at the time of framing of charges while in the present case, trial has already concluded. Now, let us peruse the evidence on which reliance has been placed by the prosecution.FIR No.06/1996 State Vs Nand Kishore & Ors. Page 8 of 18
13. Admittedly, the entire case of prosecution rested upon circumstantial evidence. In order to prove the angle of criminal conspiracy, prosecution has relied upon various links mentioning that the complete chain of circumstantial evidence is established. The evidence on record is to be appreciated by keeping in mind the observation made by the Hon' ble Supreme Court in " Kehar Singh & Ors. Vs State (Delhi Administration)" 1988 AIR 1883 that conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. It was observed that direct independent evidence of criminal conspiracy is generally not available and its evidence is a matter of inference. The inference are normally deduced from the act of the parties in pursuance of a purpose in common between the conspirators. It is not always possible to give affirmative evidence about the date of formation of criminal conspiracy or about the person who took part in the formation of conspiracy or about the object which the objectors set before themselves as the object of conspiracy or about the manner in which the object of conspiracy is to be carried out. All this is necessarily a matter of inference. It was observed that to show the conspiracy, the circumstances before, during and after the occurrence have to be considered to decide the complicity of accused persons. Reference in this regard can also be made to the judgment of " Ram Narayan Popli Vs CBI & Ors." 2003 AIR SCC 2748 .
14. In " Noor Mohd. Yusuf Momin Vs State of Maharashtra" AIR 1971 Supreme Court 885, it was held by the Hon' ble Supreme Court that : -
" ......A conspiracy from its very nature is generally FIR No.06/1996 State Vs Nand Kishore & Ors. Page 9 of 18 hatched in secret. It is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholely disinterested quarters or from utter strangers. But, like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed, in most cases, proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedents and subsequent conduct, among other factors, constitute relevant material. In fact because of the difficulties in having direct evidence of criminal conspiracy, once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by any one of them in reference to their common intention after the same is entertained becomes, according to the law of evidence, relevant for proving both conspiracy and the offences committed pursuant thereto........."
15. In yet another case tilted " Yashpal Mittal Vs State of Punjab"
AIR 1977 Supreme Court 2433, it was held by the Hon' ble Supreme Court that : -
" the very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object, or purpose but there may be plurality of means some times even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be some times misfire or over-shooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others, it will not affect the culpability of those others when they are associated with the object of the conspiracy" .FIR No.06/1996 State Vs Nand Kishore & Ors. Page 10 of 18
16. Coming to the facts of the present case, the prosecution has relied upon three pieces of circumstantial evidence. The first piece of circumstantial evidence on which reliance has been placed is that fifteen cases containing bottles of unauthorized liquor were recovered from the Vend. The second piece of circumstantial evidence is that all the accused persons were in conscious possession of these cartons. The third piece of circumstantial evidence is that accused persons prepared and used forged transport permit as genuine. Let us peruse the record to see whether these circumstances have been proved. The accused persons have not denied the possession or recovery of cases from the Vend. They have admitted that cases containing bottles of Goldee whiskey were recovered from the Vend. It is the defence taken by them that the supply of these cartons was received by them alongwith Form No.17 (which can also be called as Transport Permit) and invoice. It is their common line of defence that they received and accepted supply under a bonafide belief that the documents were genuine. Their said admission puts to rest all controversies about recovery and it can be safely presumed that recovery stands established.
17. It has been proved that the transport permit and invoice were forged. The transport permit (Form No.17) bearing Book No.4381 dated 29.12.1995 is Ex.PW-5/A while the invoice (three copies) is Ex.PW-8/A. In order to establish that the transport permit was forged, officials from the Excise Department were examined. Sh. B.K.Gupta (PW-6), Inspector, Excise Department stated that at the time of incident, he was posted as Inspector with Transport Permit Branch of his department and used to issue transport permits. FIR No.06/1996 State Vs Nand Kishore & Ors. Page 11 of 18 He mentioned that the alleged transport permit was never issued by him and the document does not bear the seal of his office. He mentioned that the book from which the transport permit was issued used to remain in custody of Om Prakash who used to work as LDC with the department. He mentioned about the procedure of issuance of transport permit stating that it was supposed to be issued after receiving application from concerned departments. He mentioned that in the present case, no such request or requisition was received. This witness has not been cross examined by the accused persons. His unrebutted testimony establishes that the transport permit was fake. Om Prakash (PW-1) stepped into the witness box and mentioned that the original Book No.4381 from which the transport permit was issued could not be traced. He stated that he made efforts to trace the transport permit book bearing No.4381 but could not find it in the record room of his department. The testimony of these Excise Officials leaves no scope for doubt that transport permit was forged.
18. The question which is to be asked is whether it can be taken that prosecution has established its case simply by proving that transport permit was forged ? The answer is ' negative' . Just like most of the other offences punishable under Indian Penal Code, the offences under Section 420/468/471 IPC constitute of two parts i.e. actus-reus and mens-rea. In order to prove its case, prosecution has to establish that accused committed the offence with the requisite mens-rea as the law punishes only a guilty mind. It has been the main line of defence of accused persons that they received the supply of liquor under a bonafide belief that a genuine transport permit has been issued in respect of FIR No.06/1996 State Vs Nand Kishore & Ors. Page 12 of 18 the said liquor. Ld. Defence Counsel has argued that there was no reason or occasion for the accused persons to disbelieve or doubt the genuineness of transport permit and invoice which were presented at the time of supply. He has contended that witnesses from Excise Department have conceded during their cross examination that officials managing the Vend have no means to check the authenticity of transport permit. He has stated that there was no other option available with the accused persons except to accept the supply of liquor. In order to buttress this argument, he has pointed out towards the cross examination of official witnesses. Let us peruse the relevant portion of the cross examination on which reliance has been placed.
19. Krishan Kumar (PW-5) stated in his cross examination that he can not say whether any specimen signature or seal of the authority issuing the transport permit is being kept at the Vend to verify the genuineness of the permit. He admitted in his cross examination that the Manager of the Vend has no means to verify the authenticity of transport permit. Kishan Gopal Yadav (PW-7) has also stated that no specimen signature or seal of authority issuing the transport permit is kept at the Vend. He stated that the Manager of the Vend is bound to make entry of the permit received from the Excise Department. Perusal of his cross examination depicts that he has categorically stated that the Manager of a Vend has no other option but to accept the supply of liquor made on the basis of transport permit. In order to further fortify their line of defence, accused examined Mahinder Singh (DW-1), Dy. Manager, DSCSC. He stated that as per the set practice, the entry of transport permits and the corresponding FIR No.06/1996 State Vs Nand Kishore & Ors. Page 13 of 18 goods are to be made in L-2 register and at the relevant time, there were no written guidelines to ascertain the genuineness of transport permit. He mentioned that in case, a transport permit has been issued in the name of a particular Vend, then, there is no other option available with the Manager but to accept the supply of liquor and he can not refuse to accept it. Thus, the evidence on record provides support to the defence taken by the accused that there was no other option available with the accused persons but to accept the supply of liquor.
20. It has been argued by the defence counsel that there is no material to show that accused persons were having criminal intention to cheat or make illegal profit by selling unauthorized liquor from a Government Vend. He stated that at the time of receiving supply of liquor, entires were made by the accused in the prescribed registers. He has pointed out towards the entires made in L-2 register in respect of cases received on the basis of forged permit. Counsel has argued that in case, the accused persons intended to sell the unauthorized liquor from the Vend, then, they would not have made entires in the register. He argued that as a matter of routine, the entires in the registers including daily sales statement is to be forwarded to the department and in case, the accused persons intended to cheat the department, then, they would not have made entries in the register. The arguments of defence is convincing. Insp. Surender Kumar Gulia (PW-8) stated that he seized the relevant documents on 10.01.1996. The relevant documents are daily sales statement dated 03.01.996 (Mark-7/A1-A14) and extract of L-2 register (Ex.PW-7/B1 & B2). Krishan FIR No.06/1996 State Vs Nand Kishore & Ors. Page 14 of 18 Gopal Yadav (PW-7), Asstt. Manager stated that on 10.01.1996, Insp. Surender Kumar Gulia came to his office and collected these documents. During examination of this witness, the original L-2 register was produced and the relevant entires were seen and compared with the original. The L-2 register shows that the relevant entry about the supply of unauthorized liquor was made on the relevant date. This is a circumstance which goes in favour of accused persons. I find force in the arguments of defence that in case, accused persons have hatched a conspiracy to cheat by selling unauthorized liquor from the Vend, then, in all probabilities, they would not have made entires in L-2 register. The fact that relevant entries about unauthorized liquor were found in L-2 register as well as daily sales register goes on to show that the defence taken by the accused persons is probable.
21. It has been argued by Ld. APP that surprise inspection took place on 03.01.1996 while the relevant registers were seized on 10.01.1996. He has argued that there is every chance that during the intervening period, interpolations might have been made in the registers to give a genuine colour to the entire transaction. This argument could have been appreciated in case, the prosecution would have challenged these entries but to the contrary, in fact, the person, who proved these entries, was a prosecution witness. In these circumstances, it would be unfair to allow the prosecution to challenge the authenticity of these entries at this stage. Admittedly, no investigation was done to ascertain the author of forged transport permit. Investigating Officer (IO) has not made any investigation in this respect. The specimen handwriting FIR No.06/1996 State Vs Nand Kishore & Ors. Page 15 of 18 of accused persons was not obtained and no other investigation was done in this direction. Record is completely silent as to how the foil of book No.4381 was used for preparing a forged transport permit. It has been mentioned by the IO that the invoice (Ex.PW-8/A) was also found to be forged but he has not done any investigation to ascertain the identity of the person who forged it. These shortcomings and omissions in investigation creates doubt and benefit has to be given to the accused.
22. In a criminal trial, prosecution is duty-bound to establish its case beyond reasonable doubt and it must do so by leading independent and cogent evidence. There is no scope of raising any presumption about facts unless they have been proved by evidence. It must be established that in all probabilities, the offence has been committed by the accused only. All the circumstances from which the conclusion of guilt is to be drawn should be fully and cogently established. All the facts, so established, should be consistent only with the hypothesis of the guilty of accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and proved circumstances must bring home the charge beyond all reasonable doubt. In the present matter, there is serious doubt as to the genuineness of the prosecution' s case. The Evidence Act does not contemplate that accused should prove its case with the same strictness or rigor as the prosecution is required to prove a criminal charge. In fact, it is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged by Section 5 of the Evidence Act as a result of which FIR No.06/1996 State Vs Nand Kishore & Ors. Page 16 of 18 he succeeds not because he proves his case to the hilt but because probability of the version given by him throws doubt on the prosecution' s case and therefore, the prosecution could not be said to have established its case beyond reasonable doubt. It is sufficient for the defence to give a version which competes in probabilities with the prosecution' s version for that would be sufficient to throw suspicion on the pros' s case in entailing rejection by the court.
23. I have appreciated the entire evidence and reached a conclusion that the prosecution' s case is doubtful while on the other hand, accused persons have put forward a defence which is probable and believable. There is evidence to demonstrate that accused persons carried out relevant entires in the prescribed registers at the time of receiving supply of purported unauthorized liquor. Record also suggests that there were no means for the accused persons to ascertain the genuineness of the transport permit vide which the liquor was supplied. Officials from the department have mentioned that accused persons had no other option but to accept the supply of liquor. They have categorically stated that the accused persons could not have refused to accept the supply. These proved set of circumstances provides support to the defence taken by the accused. I am in complete agreement with the arguments of defence that prosecution has failed to demonstrate that accused persons committed the act with the requisite criminal intention to cheat and make illegal profit. The mens- rea, which is an essential ingredient of the offences punishable under Section 420/468/471 IPC & Section 61 Excise Act read with Section 120B IPC is missing. The result is obvious. Accused Nand Kishore, Shiv Narain, Rambilas FIR No.06/1996 State Vs Nand Kishore & Ors. Page 17 of 18 Rai, Bhuvneshwar Pandey and Vijender Singh stand acquitted of the charges under Section 420/468/471 IPC and Section 61 Excise Act read with Section 120B IPC.
File be consigned to record room after necessary compliance.
Announced in open Court (SUDHANSHU KAUSHIK)
on 22.01.2015 ACMM-01, Central District,
Tis Hazari Courts, Delhi
It is certified that this judgment contains Eighteen (18) pages and each page bears my signatures.
(SUDHANSHU KAUSHIK) ACMM-01, Central District, Tis Hazari Courts, Delhi FIR No.06/1996 State Vs Nand Kishore & Ors. Page 18 of 18