Union Of India vs Suresh Chander Gupta on 8 January, 2019

[Cites 3, Cited by 1]

Delhi High Court

Union Of India vs Suresh Chander Gupta on 8 January, 2019

Equivalent citations: AIRONLINE 2019 DEL 1803

1. Petitioner Union of India seeks setting aside of order dated 14.12.2009 passed by Additional chief Metropolitan Magistrate whereby the Respondent/accused herein has been acquitted of the offence punishable under section 420/468/471 IPC.

2. A complaint was made by the Directorate General of Supplies and Disposals, the Petitioner herein, against the Respondent Suresh Chand Gupta that he as Proprietor of M/s Electronics Enterprises was awarded a contract for supply of microphones manufactured by M/s AKG Acoustics (I) Ltd. As per the terms of contract, he was required to get the equipment inspected by purchaser's authorized CRL.REV. P. 31/2012 Page 1 of 10 representatives, at manufacturer's factory premises before its dispatch/delivery to the consignee. 95% payment was to be released against proof of inspection and dispatch. Balance 5% was to be paid after receipt and acceptance of stores by the consignee in full and good condition. The Respondent received payment to the tune of Rs.69,80,922/-, on the basis of various bills, along with the Consignees Receipt Certificate/Inspection Note/Railway Receipt.

3. It is the case of the prosecution that later on, it was revealed that one of the consignee namely Chief Engineer (NZ) AIR and TV could not receive the stores booked under R/R dated 21.07.1989 because the same was booked in the name of 'self' by the contractor instead of booking the same in the consignee's name. The second grievance is that Director (Engg.) AIR, New Delhi intimated that supplier had not supplied any inspected material but dispatched some un-inspected goods. The third head of grievance is that accused tampered three Receipt Certificate issued by consignees in Calcutta/Bombay and collected payment.

4. As per the prosecution, during investigation it was revealed that accused had added item mentioned at Serial No. 4 and 5 in challan No. 203 dated 05.07.1989. Similarly, he added items at Serial No 2 to 4 in challan No. 228

5. It is alleged that the representative of the Respondent was never present at the time of inspection. When the inspection notes were in CRL.REV. P. 31/2012 Page 2 of 10 the process of issue, there was some dispute between the respondent and the manufacturer. Manufacturer severed all business relations with the respondent. Inspection calls given by manufacturer earlier were withdrawn and letter was addressed to Director General Supplies and Disposals, still the respondent managed to get the inspection notes released from the office of complainant in collusion with some officers. The R/R dated 21.07.1989 addressed to 'self' indicated the weight of microphones dispatched thereunder as 22 kg whereas weight of items given in bill No. 252 came to more than three quintals. The inspection notes of those goods were consigned only on 22.08.1989 but despatch has been shown on 21.07.1989

6. After perusing the evidence on record and other documents placed before it, the Trial Court by the impugned judgment dated 14.12.2009 held that the prosecution had failed to prove allegations against the Respondent and there was no material on record to convict the accused on any count of charge. It has inter-alia held that all goods against which the payment was made to the Respondent were supplied by him to the department. Further that there was nothing on record to suggest that the respondent had received payment against any uninspected goods or against the terms of the accepted tender. The Trial Court acquitted the Respondent of all charges.

7. Petitioner initially filed an appeal before the sessions court impugning the order of acquittal, however withdrew the appeal on 20.05.2011 with liberty to file the present petition.

CRL.REV. P. 31/2012 Page 3 of 10

8. With regard to each of the allegations the finding of the trial court is elaborate. The trial court has considered the evidence led by the prosecution and inter alia held as under:

"8. First count of charge against the accused was that during the year 1989-1990 he deceived Chief Controller of Accounts Department by misrepresenting that he has consigned inspected goods and thereby dishonestly induced the complainant to make payment of Rs. 69,80,922/- and committed an act of cheating under section 420 IPC.

9. Learned Sh. Rawat has drawn my attention to the testimony of complainant. In his cross examination on behalf of accused the complainant has failed to state what amount of the uninspected goods were supplied to the department, even the IO of this case has not stated that what were uninspected goods supplied by the accused for which the payment was made by the department. The IO has stated that he did not seize any uninspected goods supplied to the department against which the amount was allegedly claimed by accused.

10. PW 19 Sh A.K. Aggarwal, on the other hand, has stated that in the year 1989 he was posted as Deputy Director Engineering in Directorate General All India Radio Nev/ Delhi. He was nominated as Inspecting Officer to inspect Microphone(s) and accessories at the premises of AKG Acoustics, Gurgaon, which were to be supplied to the AIR by the accused. The inspection took place from 12th July to 21st July 1989 with the assistance of Mrs. Manju Mathur. He recorded the quantities of Microphones that were accepted as well as a small quantities were rejected.

11. He further stated that he was satisfied with the quality of the goods except for a few units which he had CRL.REV. P. 31/2012 Page 4 of 10 rejected. In his examination witness has also stated that he was not consulted by the IO/or by the complainant during investigation or prior to the filing of the present complaint before the Police.

12. He further stated that whether the supplier had supplied the inspected goods or not can be easily checked or verified by serial number engrossed on the microphone(s).

13. Mr. Rawat has rightly submitted that the serial number were engrossed on the microphone(s) as per clause 19(f) of the accepted tender Exh. DX. This witness further stated that neither his department nor the police had at any point of time inquired from him by showing any of the microphone(s) as supplied by the supplier to confirm whether he had inspected that particular microphone(s).

14. It is, therefore rightly submitted by Mr. Rawat that there was no occasion for the complainant to make a complaint to the effect that the accused has claimed some amount for the uninspected goods when those goods were not verified by him.

15. It is further rightly submitted by Mr. Rawat that there is no occasion for the IO to submit the charge sheet unless he has verified whether some uninspected goods were actually supplied by the accused or not and if so what was the value of those goods.

16. In the absence of prior verification from PW 19, the Inspecting Officer of the goods, there was no occasion by the department to file the complaint against the accused. It as (sic)(was) further the basic duty of the IO to verify from the Inspecting Officer of the department, whether the goods, against which the payments were claimed by accused were inspected by CRL.REV. P. 31/2012 Page 5 of 10 him or not. Without ascertaining this fact there was no occasion for the IO to send the accused for facing trial in the Court.

17. In his statement, the IO has even stated that he did not find it necessary to seize the uninspected goods or to verify how the amount allegedly cheated by accused was arrived at. This reflects callous attitude of the IO and he did not investigated (sic) (investigate) the matter on this vital aspect. Hence, the prosecution in my opinion has miserably failed to prove the charge against the accused on count No1.

18. The next count of charge against the accused is that he interpolated receipt certificate No 203, 231 and 228 dated 05.07.1989; 19.07.1989 and 15.04.1989 respectively by making additions about number of goods dispatched with a view to cheat the complainant.

19. To prove the allegations of adding in the CRC's/Challan the prosecution produced two witnesses, PW 23 Sh. V.N.C. Pillai and PW 8 Sh. B.N. Chaudhary, rest of witnesses are not connected with this count of charge.

20. As per testimony of prosecution witnesses Consignee Receipt Certificate (CRC) Exh. PW28/I, PW28/J, PW8/C or PW23/B were issued by the department and the accused by adding some items in the above CRC used the CRC's Exh. PW5/G (also Exh. PW20/H) PW5/I & PW5/K (also PW 23/A).

21. PW 28 Sh. B.N. Chaudhary, in his examination in chief has stated that two items, were subsequently added by accused in Ex. PW5/G but in his cross examination he has admitted that Ex PW5/G was bearing his signatures in original at three points Mark A-1, A-2 and A-3 respectively. He further stated that first three items CRL.REV. P. 31/2012 Page 6 of 10 mentioned in Exh. PW5/G pertain to RE. No. 1903407 and rest of the times 4 and 5 pertain to the (sic) another RR number. He further stated that the articles pertaining to other RR number were not received by him and were received by some other person. He further categorically admitted that even the items No. 4 and 5 were received by his department.

22. This all-together falsify the claims of the department of complainant that accused attempted to receive payment or actually received payment for the items not supplied by him to the complainant department.

23. PW 28, Sh. Chaudhary, has categorically admitted that all the items mentioned in Exh. PW5/G or Exh. PW28/H were received by the department. Here again the role of the complainant and IO is in serious doubts.

24. In respect to other CRC Exh. PW5/I, again it is alleged that accused manipulated the same by adding items in the original CRC Exh. PW28/J.

25. Mr. Rawat has again drawn my attention to the testimony of PW28, Sh. Chaudhary.

26. PW 28, Mr, Chaudhary in his examination in chief has stated that item No. 3 in CRC Exh. PW5/I was added. In his cross examination he, however, admitted that the items mentioned in CRC Exh. PW5/I at Serial No. 3 were received by his department as Exh. PW28/DB (Daily register kept in Kolkatta Office) He further stated that he did not state about this since the IO had not asked him about the same.

27. This witness also stated that not only the goods as mentioned in Exh. PW5/I were received by the department but they were further distributed amongst the consignee branches. This again falsify the claims of the department that accused claimed any amount for the CRL.REV. P. 31/2012 Page 7 of 10 goods not delivered by him viz-a-/viz Exh. PW28/J or Exh. PW5/I.

28. With respect to allegations of forgery in third CRC Exh PW5/K, again the goods mentioned in the same were received by the department which is reflected from the letter dated 19.06.2009 Ex PW23/DA.

29. This again reflects that all the items mentioned in Exh. PW5/K against which the accused allegedly received payment from the department were actually received by the department. Both these witnesses further admitted in their testimony that they did not inform that any of the items, against which the payment was made to accused, were not received by their department.

30. PW 23 stated "it is correct that the accused added the items and claimed the payment, was informed by the DGS&D to our department"

PW28 also stated : "it is correct that neither me nor my department at any point of time informed the DGS&D, AIR or the Pay &Accounts Department that the accused had claimed payment, on the basis of the CRC on which I said that the accused had added items."

31. This again reflects that the complaint against accused was false on the count of forgery of CRC. Neither the complainant verified the facts nor the IO conducted any investigation on these points.

32. In count No.3, it was alleged against the accused that he used the forged CRC knowing or having reasons to believe the same as false.

33. The Court has already held that all the items mentioned in the CRC, against which the payment was allegedly made to accused, were actually supplied by him to the department. Further there is nothing on record to CRL.REV. P. 31/2012 Page 8 of 10 suggest that the accused received any payment against any uninspected goods or against the terms of accepted tender. In the complaint, complainant has stated that payment was to be made on inspection and dispatch. Asper clause 18 of the AT, Exh. DX the payment term is inspection/dispatch and witnesses examined before the Court has deposed that accused was entitled to claim the payment either on the basis of inspection or on the basis of dispatch. It has been again rightly submitted by Mr. Rawat that the complainant misrepresented and claimed wrongly that the payment clause was inspection and dispatch. That even as per the statement of the most of the witnesses the consignee or indentor were entitled to inspect the goods and as per the statements, that consignee were entitled to inspect the goods after receiving from the accused. Hence, prosecution has miserably failed to prove the allegations against the accused on any count."

9. Trial Court has elaborately and extensively considered the evidence led by the prosecution and has come to the categorical finding that not only the prosecution has miserably failed to prove the allegations against the accused on any count but there was no occasion for the complainant to make a complaint and for the IO to submit the charge sheet unless he had verified the allegations. The Trial Court has held that the accused was sent for facing trial without verification of facts. The Trial Court has categorically found that the complaint against accused was false on the count of forgery of CRC.

10. Even before this court, the Petitioner has failed to establish that the finding returned by the Trial Court are erroneous or warrant any interference.

CRL.REV. P. 31/2012 Page 9 of 10

11. On perusal of the record, I am satisfied that there is no infirmity in the well-reasoned judgment of the Trial Court. In view of the above, I find no merit in the petition. The petition is accordingly dismissed.

12. It may be noticed that the FIR was registered in the year 1991 and the final judgment acquitting the Respondent was passed on 14.12.2009. Respondent had to face the trauma of criminal prosecution for nearly 19 years and then has had to defend the appeal (which was withdrawn to file the Revision Petition) and this petition for another 9 years. In view of the finding that there was no occasion for the complaint to have been filed, this petition is dismissed with costs quantified at Rs. 1,00,000/-. The costs shall be paid by the Petitioner within a period of four weeks.

13. Further, it is directed that the goods, if any seized by the IO shall be released by the IO, to the person entitled under law, within a period of four weeks.

14. Petition is disposed of in the above terms.

15. Order Dasti under signatures of the court master.

JANUARY 08, 2019/HJ                         SANJEEV SACHDEVA, J




CRL.REV. P. 31/2012                                             Page 10 of 10

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