Delhi District Court
1 Cbi vs Moti Lal Chandra on 19 May, 2010
1 CBI Vs Moti Lal Chandra
IN THE COURT OF MS. KAVERI BAWEJA
CHIEF METROPOLITAN MAGISTRATE : DELHI
RC6(E)/95
CBI/EOWI/ND
u/s 420/468/471/511 IPC
CBI Vs. Moti Lal Chandra
J U D G M E N T
a. Sl. Number of the case : 4/2
b. Name of the complainant: Sh. A. K. M. Chakankar, Dy.
DGFT, Udyog Bhavan,
New Delhi.
c. Date of commission of : 22/9/95
offence
d. Name of the accused : Moti Lal Chandra
e. Offence complained of : U/s 420/468/471/511 IPC
f. Plea of accused : Pleaded not guilty
g. Arguments heard on : 06/5/2010
h. Final order : Acquitted
i. Date of such order : 19/5/2010
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. The case in hand was registered on the basis of a complaint 2 CBI Vs Moti Lal Chandra dated 22.09.1995 received from Sh. A.K.M Chakankar, Dy. DGFT, Udyog Bhawan, New Delhi. The complainant reported about M/s Ronnie Overseas attempting to obtain the high value license on the basis of forged and fabricated documents.
2. As per the chargesheet, it was disclosed upon investigation that a fictitious firm known as M/s Ronnie Overseas was established in 1993 at SomduttII, 9, Bhikaji Cama Place, New Delhi by Moti Lal Chandra as its proprietor. The said Moti Lal Chandra @ Pushpendra thereafter applied for ImporterExporter code Number (hereinafter referred to as I.E.Code Number) vide his application dated 03.12.1993 which the following documents were attached as mentioned in the chargesheet were attached.
3. The said Moti Lal Chandra @ Pushpendra subsequently submitted an application dated 27.12.1993 to the Dy. Director, General Finance Trade, Udyog Bhawan, new Delhi for obtaining a quantity based advance license (QABAL) under Duty Exemption scheme in terms of ALC circular Number 9/92 dated 12.08.1992 issued by DGFT, Udyog Bhawan, New Delhi, for the import of clove buds valued at Rs.30 Lacs for exporting the clovebuds oil valued at Rs.60 Lacs and attached the photocopies of the following documents with the application, as mentioned in the chargesheet.
4. Suspecting the genuineness of the documents, DGFT sought verification from the concerned authorisation before the issue of the license and the documents were found to be forged.
3 CBI Vs Moti Lal Chandra
5. It was also revealed that the Bank Certificate of PNB, Connaught Circus, New Delhi appended below the application of the accused was also forged by accused Moti Lal Chandra @ Pushpendra. The chargesheet was thus filed alleging the commission of offences punishable u/s 511 IPC read with section 420/468/471 IPC by the accused Moti Lal Chandra @ Pushpendra.
6. The accused on being summoned was supplied with the copies of the chargesheet as per Section 207 CrPC and after hearing arguments, charge for the offence punishable u/s 511 IPC read with Section 419/420/468/471 IPC was framed against the accused Moti Lal Chandra @ Pushpendra vide order dated 07.10.1998 the accused pleaded not guilty and claimed trial.
7. Nineteen witnesses were examined by the CBI to bring home the allegations made against the accused in the chargesheet. The statement of the accused was recorded u/s 313 CrPC on 20.07.2007 wherein he denied the incriminating circumstances against him. He even denied that he, as Pushpendra, proprietor of M/s Ronnie Overseas applied to DGFT for grant of Exporter and Importer code. He further denied having forged Bank Certificate Ex.PW4/2 and Ex.PW4/3 and further denied having obtained the importer and exporter code no .0593052552 from DGFT Ex.PW7/A. The accused further denied having applied for Quantity based license for import of Clove Bud oil for Rs.30 Lacs vide Ex. PW4/5 and also denied that he as Pushpendra used the address 11617, 4 CBI Vs Moti Lal Chandra Som Dutt Chambers IInd, 9, Bhikaji Maka Place, New Delhi as office address for the purpose of business of M/s Ronnie Overseas as proprietor of the said firm. In his statement u/s 313 CrPC, the accused stated that the CBI had shown him a photograph and pressurised him to admit that he is his man and that the accused should produced him. He stated that he is innocent and a false case has been filed against him. He pleaded innocence. His further statement was recorded u/s 313 CrPC on 04.11.2009 wherein he denied that vide letter dated 10.12.1993 Ex. PW4/4, he had authorised his representative to receive the importer and exporter code from DGFT office.
8. Arguments have been advanced before me in detail by Ld. APP for CBI as well as by Ld. Defense counsel representing the accused who have also filed extensive written arguments on record and cited case law in support of the respective submissions.
9. As discussed above, it is alleged that the Moti Lal Chandra @ Pushpender established fictitious proprietorship firm in the name of M/s Ronnie Overseas in 1993 at SomduttII, 9, Bhikaji Cama Place, New Delhi. Thereafter, accused Moti Lal Chandra Chandra applied for ImporterExporter Code Number vide his application dated 03/12/93 along with which following documents were attached:
i) T.R. challan Number 9844 for Rs. 1,000/ deposited with Central Bank of India, Asaf Ali Road, New Delhi.
ii) Bank's Certificate appended below the application form purportedly 5 CBI Vs Moti Lal Chandra issued by the Punjab National Bank, Connaught Circus Branch, New Delhi.
iii) It is stated that I.E.Code Number 0593052552 was allotted to the said M/s Ronnie Overseas on 10/12/93 by the office of Jt. Director General of Foreign Trade (Jt. DGFT), Central Licensing Area, New Delhi.
10.In order to establish these allegations against the accused, the prosecution examined PW9 Sh. Mahesh Chandra, who deposed that in the year 1993, he was working as Dy. Director General of Foreign Trade. He stated that application dated 03/12/93 Ex. PW4/1 was received from M/s Ronnie Overseas, which was accompanied by Ex. PW4/2 and Ex. PW4/3. Treasury challan Number 9844 is Ex. PW9/A and import export Code Number Number 0593052552 was thus issued. PW9 further deposed that any applicant having urgency could see Dy. Director General under visitor pass. He further deposed that one Mohan appeared before Dy. Director General under visiting pass Ex. PW9/B along with M/s Ronnie Overseas letter Ex. PW4/4. He also identified his order on Ex. PW4/4 for issuance of I.E. Code Number and his signatures at point A.
11. Relying on the testimony of PW9 and PW4, the handwriting expert , it has been argued by Ld. PP for CBI that it is clearly established from the testimony of these witness that accused Moti Lal Chandra had applied for I.E.Code Number vide Ex. PW4/1 and 6 CBI Vs Moti Lal Chandra that Ex. PW4/2 and PW4/3 bear his handwriting at point Q3 and Q4, as has been established by the report of the handwriting expert Ex. PW4/84.
12. He further argued that testimony of Sh. Sunil Thakur, PW11 also establishes that the accused had approached Sh. Sunil Thakur for taking office at 116117 Somdutt Chamber II, 9, Bhikaji Cama Place as proprietor of M/s Ronnie Overseas.
13. He submitted that a conjoined reading of statements of PW4, 9 and 11 proves that accused Moti Lal Chandra floated a firm in the name of M/s Ronnie Overseas at 116117 Somdutt Chamber II, 9, Bhikaji Cama Place for taking the said premises on rent. He submitted that it is also stands proved that the accused applied for I. E. Code Number by annexing forged bank certificate Ex. PW4/2 and Ex. PW4/3 also stand substanted on record particularly in the light of statement of PW9 and handwriting expert PW4.
14. Per contra, Ld. Defence Counsel has argued that the testimony of PW9 and 11 does not in any manner prove the case of the prosecution. He has argued that PW11 Sh. Sunil Thakur merely deposed that accused present in court had approached him for taking their services on rent. He has argued that PW11 nowhere deposed that it is the accused, who approached him as Pushpender stating to be proprietor of M/s Ronnie Overseas for the purpose of taking the premises in question on rent.
15. However, on going through the testimony of PW11 in its entirety 7 CBI Vs Moti Lal Chandra particularly crossexamination of this witness, I find no force in the contentions raised by Ld. Defence Counsel. It would be relevant to note that the witness has clearly stated in his crossexamination that when accused came to him for taking the services, he gave him a week's time to submit all the papers. Ld. Defence Counsel, in fact, himself gave a suggestion to PW11 that he had identified accused Pushpender at the instance of CBI.
16. In the light of aforesaid, I am of the view that testimony of PW11 shows that accused had approached PW11 as Pushpender for taking the premises on rent for establishing office of the proprietorship concern of M/s Ronnie Overseas at 116117 Somdutt Chamber II, 9, Bhikaji Cama Place.
17. However, I am unable to agree with the submissions made by Ld. APP that testimony of PW4 and 9 prove that it is the accused, who had applied for issuance of I. E. Code Number to the office of DGFT or that it is accused, who had submitted forged documents for issuance of I. E. Code Number It would be relevant at this stage to refer again to the statement of PW9, who stated that in the year 1993, he was working as Dy. Director General of Foreign Trade. He further stated that one Mohan appeared before Dy. Director General (i.e. himself by application) under visitor pass Ex. PW9/B along with letter of M/s Ronnie Overseas Ex. PW4/4. In his crossexamination, he deposed, "I do not know the accused Moti Lal Chandra present in the court today." Reading the statement of PW9 in its entirety, it 8 CBI Vs Moti Lal Chandra would appear that one Moti Lal Chandra appeared before the witness under visiting pass Ex. PW9/B along with letter Ex. PW4/4 for handing over I. E. Code Number to him. The crossexamination of PW9 would reveal that it is not the accused Moti Lal Chandra, who had appeared before him for this purpose.
18. The report of the handwriting expert Ex. PW4/84 shows that the handwriting at points Q3 and Q4 on Ex. PW4/2 and PW4/3 tallied with the specimen handwriting of accused Moti Lal Chandra. However, PW4 clearly admitted in his crossexamination dated 11/7/2000 that his opinion was not sought on the portion encircled 'Z' in green outside the writing mark Q3 on Ex. PW4/2 and similarly his opinion was not sought on portion encircled green at point 'Z' in Ex PW4/3. The piece of evidence clearly establishes that for reason best known to the Investigating Agency, the signatures alleged to be of Manager, PNB, Connaught Circus Branch were not even sent for handwriting analysis. Signatures at point X on Ex. PW4/2 and PW4/3 purportedly appended by Manager, PNB, Connaught Circus Branch were not even sent for analysis and the opinion of the handwriting expert was not sought as regards these signatures. Thus, though the Manager, PNB PW1 has denied his signatures on Ex. PW4/2 and PW4/3 and has also stated that there is no branch in the name of PNB, Connaught Circus, New Delhi, yet it cannot be assumed even for the sake of arguments that it is the accused Moti Lal Chandra, who had appended his signatures at point X on Ex.
9 CBI Vs Moti Lal Chandra PW4/2 and PW4/3. Further, the declaration Ex. PW4/2 and PW4/3 bearing signatures of 'Pushpender' at points Q2 and Q9 respectively have not been found to be those of accused Moti Lal Chandra. Reference in this regard can be made at the report of GEQD where it has been clearly mentioned that it is not possible to express opinion on the rest of the items on the basis of material supplied at points Q3, 4 and 6 on Ex. PW4/2 and Ex PW4/3.
19. This implies that the prosecution has not been able to establish that the signatures of 'Pushpender' at point Q2 and Q9 on Ex. PW4/2 and Ex. PW4/3 respectively were appended by accused Moti Lal Chandra. Similarly, no opinion has been expressed in the GEQD report as regards signatures of Pushpender at point Q1 on application for I. E. Code Number Ex. PW4/1.
20. Therefore, in absence of any evidence whatsoever to the effect that ti is the accused Moti Lal Chandra, who had signed as Pushpender at point Q2 and 9 on Ex. PW4/2 and PW4/3 respectively or that he had signed as Manager of PNB, Connaught Circus, New Delhi at point X on Ex. PW4/2 and PW4/3 respectively, I am of the view that it cannot be held that it is accused Moti Lal Chandra, who had applied for I. E. Code Number vide application Ex. PW4/1 dated 03/12/03.
21. A cumulative reading of expert opinion Ex. PW4/84 coupled with the testimony of PW4 and PW9 would therefore reveal that prosecution has failed to establish that it is the accused Moti Lal 10 CBI Vs Moti Lal Chandra Chandra, who had applied for obtaining the importer exporter Code vide applicatio Ex. PW4/1 as Pushpender, as alleged in the chargesheet. The testimony of PW11 that accused had taken premises bearing Number 116117 Somdutt Chamber II, 9, Bhikaji Cama Place on rent stating himself to be Pushpender and proprietor of M/s Ronnie Overseas, would not in my opinion by itself constitute any offence in absence of any other evidence against the accused. Similarly, the fact that accused filled the body of the bank certificate Q3 and Q4 on Ex. PW4/2 and PW4/2, by itself, would not amount to commission of offence of forgery in absence of any evidence to establish that it is the accused, who either used documents Ex. PW4/2 and PW4/3 for the purpose of obtaining I. E. Code Number or forged Ex. PW4/2 and PW4/3 by signing at point Q2 and Q9 and at point X as Manager, PNB, Connaught Circus, New Delhi. It cannot be held solely on the basis of report of handwriting expert that is the accused, who had filed body of bank certificate and committed any offence under Section 465 IPC. It would be relevant at this juncture to refer to the definition of forgery as contained in Section 463, which reads as under: "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 11 CBI Vs Moti Lal Chandra with intent to commit fraud or that fraud may be committed, commits forgery."
22.A bare reading of the aforesaid statutory provision would reveal that it is not making of false documents or part thereof which constitute offence of forgery but same should also be coupled with the intent to cause damage or injury, to the public or to any person, or to support any claim or title or to commit any fraud. In this case, though there is no material on record to indicate that accused had forged the portion Q3 and Q4 on Ex. PW4/2 and Ex. PW4/3, yet the prosecution has failed to establish that the same was done by the accused with an intend to commit any fraud in as much as there is no evidence to establish that it is the accused, who had either applied for I.E. Code vide application Ex. PW4/1 or it is the accused, who had approached PW9 Dy. Director General of Foreign Trade that the application Ex. PW4/1 or had met him with letter Ex. PW4/4. I am supported in my view by a judgment of Hon'ble Supreme Court titled as Ram Narain Poply Vs Central Bureau of Investigation reported as AIR 2003 Supreme Court 2748 where it has been observed as under: "In order to constitute forgery, the first essential is that the accused should have made a false document. The false document must be made with an intent to cause damage or injry to the public or to any class of publice or to any community."
12 CBI Vs Moti Lal Chandra "The expression 'intent to defraud implies conduct coupled with intention to deceive or thereby to cause injury. In other words, defraud involves two conceptions namely, the deceit and injury to the person deceived, that is infringement of some legal right possessed by him but not necessarily deprivation of property. The term 'forgery' as uded in the statute is used in its ordinary and popular acceptation."
23. Further, the case of the prosecution as it unfolds from the chargesheet is that after obtaining importer exporter Code Number, accused Moti Lal Chandra submitted an application dated 27/12/93 to the DGFT for obtaining advance license (QABAL) under Duty Exemption Scheme in terms of ALC circular Number 9/92 dated 12/8/92 issued by the DGFT, Udyog Bhavan, New Delhi for the import of clovebuds oil and attached the copies of documents as mentioned herein above along with his application dated 27/12/93. Supported documents were got verified by DGFT and were found to be forged and hence accused has been charged for attempting to cheat DGFT by using forged and fabricated documents.
24. The prosecution in this regard has brought on record the testimony of PW6 Sh. M. P. S. Bhatia, who was posted as Foreign Trade Development Officer in the office of DGFT, Udyog Bhawan, Delhi since 1995. PW6 has stated that M/s Ronnie Overseas had applied for QABAL license on 27/12/93 vide application Ex. PW4/5. Report Ex. PW4/84, however, clearly negates the case of the 13 CBI Vs Moti Lal Chandra prosecution since there is no opinion of the handwriting expert as regards his signatures on point Q7 on Ex. PW4/5. Therefore, there is no evidence on record to establish that it is accused Moti Lal Chandra, who had signed as Pushpender for obtaining importer exporter license for M/s Ronnie Overseas at point Q7 on application dated 27/12/93 on Ex. PW4/5. Thus, though the photocopy and the supporting documents annexed with the application Ex. PW4/5 have been proved to be false as per the statements of PWs 2, 3, 6 and 8, yet in absence of any evidence to the effect that it is the accused who had applied for QABAL license vide application Ex. PW4/5, the allegations against the accused for having attempted to cheat DGFT by using false documents does not stand prove on record.
25. I would at this juncture also like to make a mention of the investigation conducted in this case by the CBI.
26. Ld. Defence Counsel has drawn my attention to the statement of the IO/Insp. N. M. Shehrawat, who appeared in the witness box as PW15. In his crossexamination, IO/Insp. N. M. Shehrawat has admitted that earlier accused was called and his statement was recorded under Section 161 CrPC. He stated that he does not remember as to when for the first time, Moti Lal Chandra was shown as the accused. He also stated that the documents seized from the office of DGFT contained photograph of person who was not traced during investigation and only oral statement surface during investigation to indicate that accused was proprietor of M/s 14 CBI Vs Moti Lal Chandra Ronnie Overseas. He further stated in his crossexamination that from the witness Sh. R. P. Singh, who was examined as PW14, (who turned completely hostile) name of the accused surfaced for involvement in this case.
27. Similarly, PW19 Insp. R. K. Tiwari, who was later assigned investigation of this case w.e.f 17/9/96 candidly admitted in his crossexamination that despite his best efforts, he could not trace Mohan, who had collected I. E. Code paper. He also admitted photograph affixed on the application for I. E. Code was not of Moti Lal Chandra. He also admitted that the specimen signatures of Moti Lal Chandra as Pushpender was sent to GEQD for comparison and GEQD could not confirm the signatures of Moti Lal Chandra on involved papers in the hand of accused Moti Lal Chandra. The second IO also stated in his crossexamination that no specimen signature was taken which could be identical with signatures of Branch Manager of PNB, Connaught Circus Branch on Ex. PW4/2 on the portion encircled Z. He also stated that he made efforts for taking similar types of signatures as appears in green circle on Ex. PW4/2 from Sh. R. P. Singh, Sh. Harsh Vasant, Sh. Rajesh Chauhan and Sh. H. S. Kukreja during the period October to December, 1996 but none of them could make similar type of signature. He deposed that he was entertaining the idea during the aforesaid period that any of them as named above may be the person involved for the signature appears in green circle but this 15 CBI Vs Moti Lal Chandra possibility was ruled out in 1997. He also admitted that no TIP was conducted to find out that Moti Lal Chandra was acting as Pushpender. He also admitted that during his entire investigation, no witness pointedly identify accused Moti Lal Chandra as Pushpender.
28. The crossexamination of IO of the case would reveal serious lapses during investigation. Admittedly, no effort was made to send the signature at point X on Ex. PW4/2 and PW4/3 to GEQD for the purpose of handwriting analysis, thus, leading to existence of no material whatsoever on record to show as to whether it is the accused who had signed on Ex. PW4/2 and Ex. PW4/3 in capacity of Manager, PNB or not. Further, as admitted by first IO, the person who had approached the office of DGFT for import export code was one Mohan (as also stated by PW9) also could not be traced. During the entire investigation, the case of the prosecution that the accused had signed as Pushpender in presence of Sh. R. P. Singh also fell flat in view of the testimony of PW19, who completely turned hostile and denied the entire case of the prosecution.
29. Consequently, in the light of the material on record and the aforesaid observations, I find that the prosecution has miserably failed to prove that it was the accused, who had appeared as Pushpender in the office of the DGFT with an application for issuance of I.E.Code Number or that he had appended his signatures as Manager, PNB on the bank declaration Ex. PW4/2 and PW4/3. I have already held that the mere fact that body of the 16 CBI Vs Moti Lal Chandra bank declaration were found to be filled in the handwriting of the accused would not by itself constitute an offence. In view of the above discussion and also in view of the fact that it cannot be ruled out that accused may have filled the said portion in his own handwriting at request of 'Mohan', who remained ellusive till date or any other person.
30. Similarly, the prosecution has failed to establish that it is the accused Moti Lal Chandra who applied for QABAL license vide application Ex. PW4/5 since the signature appended on the application as Pushpender are not proved to be those of accused. Thus, the further evidence that application Ex PW4/5 was accompanied with photocopies of false documents would not be sufficient to prove the allegations against the accused for having attempt to cheat DGFT by furnishing false documents.
31. The sole testimony of PW11 Sh. Sunil Thakur that accused had taken premises bearing Number 116117 Somdutt Chamber II, 9, Bhikaji Cama Place on rent as proprietor of M/s Ronnie Overseas would not in my view, prove the allegations with which he has been charged, nor does this act by itself amount to commit of any offence, whatsoever.
32. For the foregoing reasons and the evidence on record, I thus find that allegations against the accused have not been proved. Accused is thus hereby acquitted. Bail bonds cancelled. Surety discharged. File be consigned to Record Room.
17 CBI Vs Moti Lal Chandra Announced in open court today on 19/5/2010 (Kaveri Baweja) Chief Metropolitan Magistrate/Delhi