Delhi District Court
Cbi vs . Ya-Mut-Ioon Etc. on 15 April, 2014
RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 IN THE COURT OF POORAN CHAND: CHIEF METROPOLITAN MAGISTRATE: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI RC No.: 6(E)/95 PS: SIU-VIII/CBI/ND U/s 120B r/w 420/471 IPC CBI Vs. Ya-Mut-Ioon etc. Unique ID No.: 02401R0249852001 J U D G M E N T:
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(a) S.No. of the case : 2/2/01
(b) Name of complainant : Sh. A.K M. Chakankar., Dy Director General of Foreign Trade, O/O Director General, Foreign Trade, Udyog Bhawan, New Delhi
(c) Date of commission of offence: not known
(d) Name of the accused : 1. Ms Ya-Mut-Ioon Head Office 352, Behind Main Market, Abdul Fazal Enclave, Jamia Nagar, Okhla, New Delhi Branch Office Jama Masjid, Barwalan, Moradabad Through Mr Syed Ahmed Khan r/o Molla Nagar, Behind Montessari Gulab Rai Public School, Barielly, UP
2. Mr. Syed Ahmed Khan s/o late Dr. Nazir Ahmed Khan r/o Molla Nagar, Behind Montessari Gulab Rai Public School, Barielly, UP
3. Mr Gulam Rasool CBI V/s Ya Mut Ioon Page 1 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 s/o late Raise Dullah r/o 7-D/39, Mohalla Kishrol, Moradabad, UP
(e) Offence complained of : U/s 120B r/w 420/471 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 28.03.2014
(h) Final Order : Accused Syed Ahmed Khan-
Convicted, Accused Gulam Rasool-Acquitted.
(i) Date of such order : 15.04.2014 BRIEF FACTS & REASONS FOR SUCH DECISION:
1. The facts of the case in brief are that present case was registered on the basis of a written complaint No. 9/4/94-95/P & I dated 11/12/95 of Sh A.K. M Chakankar, Dy. Director General of Foreign Trade of the office of Director General of Foreign Trade, Udyog Bhawan, New Delhi addressed to CBI, New Delhi against firm M/s Ya-Mut-Ioon, 353, Behind Main Market, Abdul Fazal Enclave, Jamia Nagar, Okhla and its branch office at Barawalan, Moradabad. The allegations levelled against the said firm are that it had obtained one quality based Advance Licence No.P/K/2320629 dated 28/09/93 from the office of Joint DGFT (CLA), New Delhi with CIF value of Rs. 41,60,000/- which is equivalent to US$ 1,30,000/- for import of brass scrap with a quantity of 108.459 mt. The said licence was issued with the condition that the firm shall export Domestic Utensils (Brass) Container with 78,000/- numbers (Weighing 105.300 Mt.) of FOB Value Rs. 74,88,000/- equivalent to US$ 2,34,000/- and Licence No. P/K/2320628 dated 28/09/93 for CIF Value of Rs. 48,00,000 which is equivalent to US$ 1,30,000/- for import of brass scrap with a quantity of 125.701 mt with the condition that the firm shall export Domestic Utensils Brass of FOB value of Rs. 86.40 lacs equivalent to US$ 2.70 lacs with quantity of 54,000 pieces with size 20" X 20". These licenses were obtained by M/s Ya-Mut-Ioon from the office of Jt. DGFT CBI V/s Ya Mut Ioon Page 2 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 (CLA), New Delhi. M/s Ya-Mut-Ioon had not fulfilled the condition of the licence i.e Export of Domestic Utensils i.e 78,000 Nos. and 54,000 pcs. amounting to Rs. 74,88,000/- and Rs. 86.40 lacs, respectively. It was alleged in the complaint that the said licenses were obtained on the basis of false documents i.e LUT, CA Certificate and Bank Realization Certificate submitted in the office of Jt. DGFT (CLA), Delhi.
2. During investigation, it was revealed that M/s Ya-Mut-Ioon is a proprietorship concern of Mrs Syeeda Begum who had applied to obtain the said licences vide application dated 20/08/93 and had also submitted copies of requisite documents i.e Application Form, photocopy of RCMC, photocopy of IEC Code No., photocopy of RBI Code number, photocopy of Export Performance Certificate duly attested by Chartered Accountant. Original TR for Rs. 8400/- and Rs. 9600/- and photocopy of export order, all signed by Mrs Safia Begum. The aforesaid documents were required to obtain the quality clearance Licence from the office of Jt. DGFT, Chartered Accountant Certificate purportedly issued by M/s. Ashwany & Co. was found forged which was confirmed by Hand Writing Expert. The LUTs (Legal Undertaking) which were submitted in the office of Jt. DGFT under the signature of Mrs Syeeda Begum was based on the false information. The said LUT was witnessed by Syed Ahmed Khan and Mrs Safi Begum, wife of Syed Ahmed Khan. Mr Syed Ahmed Khan is the son of Mrs Syeeda Begum, proprietor of M/s Ya-Mut-Ioon. The contents of LUT are false and not based on the documents. M/s Ya-Mut-Ioon did not perform any past performance of export before obtaining the said licence. M/s Ya-Mut-Ioon had not dealt any foreign transaction in its account, which was maintained with the United Bank of India, Prince Road, Moradabad. The Bank Realization Certificate was not issued by the said bank.
3. It is further alleged that Mrs Syeeda Begum vide her letters dated 20/08/93 has authorized her son Syed Ahmed Khan to deposit the CBI V/s Ya Mut Ioon Page 3 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 said application along with the required documents for the purpose of getting the licence from the office of Jt. DGFT. Syed Ahmed Khan has pursued the said licencing file in the office of Jt. DGFT and personally contacted the License Issuing Authority for the purpose. Mr. Syed Ahmed Khan has submitted a false bank realization certificate, Certificate no. nil, dated nil of United Bank of India, Prince Road, Moradabad, showing Export Performance of the firm for Rs. 61,70,661.34/-. Investigation further revealed that the Bank Realization Certificate was not issued from the Bank and it was not signed by any officer of the Bank.
4. Investigation further revealed that Mrs Syeeda Begum had opened a Current Account No. 835 in United Bank of India, Prince Road Branch, Moradabad, in the name of M/s Ya-Mut-Ioon and has authorized her son Mr Syed Ahmed Khan to operate the said bank account as Manager. M/s Ya-Mut-Ioon through Mr Syed Ahmed Khan in criminal conspiracy with Gulam Rasool made import of Brass Scrap to the tune of Rs. 68,87, 526.17/- against Licence No.P/K/2320629 and No. P/K/2320628 dated 28/09/93. It is further alleged that Gulam Rasool was having the direct connection with the Clearing House Agent for clearance of the import material . The CHA has also reminded for payment to Gulam Rasool for service charges. No correspondence by CHA is addressed to Mrs Syeeda Begum or Syed Ahmed Khan. The Clearing House Agent M/s.Universal Cargo Forwarders had received the payment of service charges from Gulam Rasool. The import documents against the said licenses were retired from the bank by Syed Ahmed Khan. The Brass Scrap amounting to Rs. 68,87,526.17 which was import against the licences in question were got cleared by the accused persons from custom through M/s. Universal Cargo Forwarders, M/s. Mulji-Dhamji & M/s. Mahavir Shipping Agency (CHA), Mumbai. It is further alleged that all the accused persons have mis-utilized the licences in question. M/s Ya-Mut- Ioon has failed to fulfill the export obligation of 78,000 Nos. of Domestic Utensils of size 20" X 20" equivalent to Rs.74,88,000/- and Rs. 86.48 lacs CBI V/s Ya Mut Ioon Page 4 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 respectively. It is alleged that thus all the accused persons have caused a wrongful loss of Rs. 46,15,000/- approximately by way of saving the custom duty on the import material against the Licence No.P/K/2320629 dated 28/09/93 and No. P/K/2320628 dated 28/09/93. Thus, the accused persons caused wrongful gain to themselves and corresponding loss to the Govt. of India, by not paying the Custom Duty to that extent.
5. On the basis of said information, RC in the matter was registered against M/s Ya-Mut-Ioon, Syed Ahmed Khan and Gulam Rasool and after completion of necessary investigation, IO prepared the chargesheet and filed the same before the Court.
6. After completion of investigation, accused persons stood chargesheeted for offences punishable u/s 120B r/w 420/468/471 IPC. Accused persons were summoned and were supplied the documents in compliance of Section 207 Cr.P.C and after hearing arguments, vide order dated 22.09.1999, charge for offence punishable u/s 120B r/w 420/471 IPC IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
7. In order to prove charges against the accused persons, the prosecution examined eighteen witnesses and thereafter PE in the matter was closed and statement of accused persons u/s 281 r/w S. 313 Cr.P.C. was recorded wherein they stated that they were falsely implicated in the present matter.
8. I have heard arguments advanced at Bar by the Ld. APP for the State, Sh T.A Siddiquie, Advocate for accused Syed Ahmed Khan and Ld Counsel Sh Satish Tamta, Advocate for accused Gulam Rasool and perused the entire material on record.
9. Before adverting to adjudication upon the arguments CBI V/s Ya Mut Ioon Page 5 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 advanced at Bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which is as under.
10. PW1 Sh A.K.M Chakanka, Joint Director General of Foreign Trade, Udyog Bhawan, New Delhi is the complainant in the case. He deposed that in the year 1995, he was posted as Dy Director General of Foreign Trade in DGFT headquarters looking after enforcement work. On 11.12.95, he has sent a complaint to the CBI which is Ex.PW1/A. He has proved the annexures filed along with application form of M/s Ya-Mut-Ioon which is Ex.PW1/B and other documents filed along with application for quantity based advance licence i.e treasury challan Ex.PW1/C, code number of import export Ex.PW1/D, CA certificate Ex.PW1/E RCMC certificate, another RCMC certificate Ex.PW1/G, declaration Ex.PW1/H, disclaimer certificate Ex.PW1/I, supporting manufacturing certificate is Ex.PW1/J, purchase order Ex.PW1/K, forwarding letter Ex.PW1/L, authorization letter Ex.PW1/M. The application was processed and approved for quantity based advance licence No. P/K/2320629 Ex.PW1/N. Office copy of licence is Ex.PW1/0. Same was sent to party vide office letter Ex.PW1/P under the signature of Sh R.K Sharma. The conditions attached to the license are Ex.PW1/Q and PW1/R. The party vide their letter dated 5.10.93 submitted the LUT for operating the licence is Ex.PW1/S. While processing it was found that name of CA is not appearing in the CA book for 1991-92. After inquiry, it was decidedto accept the LUT to the firm. LUT has been proved as Ex.PW1/T. Sh Raj Kumar is authorized nominee of the firm received the licence No. P/K/2320629 and DEEC No. 026630/PY1 & 2 and its receipt is Ex.PW1/U. He has further stated that inquiry was caused to ascertain the genuineness of applicant firm and authenticity of the documents furnished by the firm. He proved the letter dated 12.08.94 Ex.PW1/V vide which Manager, PNB, Moradabad was requested by Sh H.L Aswal to confirm the foreign exchange earned by the applicant firm. The reply receipt from the bank is Ex.PW1/W stating that there was no transaction in the account of the firm and account was CBI V/s Ya Mut Ioon Page 6 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 inoperative. Similarly letter was sent to United Bank of India under the signature of Sh Jagan Nath Controller which is Ex.PW1/X. Reply of the bank is Ex.PW1/Y. He proved the seizure memo vide which the documents were handed over to CBI as Ex.PW1/Z. For sending the information Ex.PW1/A, he has seen the documents i.e application for quantity based advance licnece Ex.PW1/1, treasury challan Ex.PW1/2 in duplicate, I.E code No. PW1/3, C.A certificate Ex.PW1/4, RCMC Ex.PW1/5, another RCMC Ex.PW1/6, declaration Ex.W1/7, disclaimer certificate Ex.PW1/8, supporting manufacturing certificate is Ex.PW1/9, purchase order Ex.PW1/10, forwarding letter of the application Ex.PW1/11 and authorization letter Ex.PW1/12. The application was processed vide note sheet Ex.PW1/13 and the issue of licence was approved on 15.09.93 by Sh R.K Sharma, Asstt. Director General. Consequently, licence No. P/K/2320628 under the signature of Sh R.K Sharma was issued to the accused firm through forwarding letter Ex.PW1/14, Office copy of licence is Ex.PW1/15. He further proved the gate passes issued in the name of accused Syed Ahmed Khan as Ex.PW1/16 to Ex.PW1/18 who pursued the applications. The licence was issued under the conditions mentioned in the back of licence. The conditions are Ex.PW1/19 and Ex.PW1/20. In order to make licence operative, LUT was executed between the applicant firm and the licencing authority. The same is Ex. PW1/21. The receipt of licence is Ex.PW1/22 and authorization letter is Ex.PW1/23.
He has further stated that inquiry was caused to ascertain the genuineness of applicant firm and authenticity of the documents furnished by the firm. He proved the letter dated Ex.PW1/24 vide which Manager, United Bank of India, Moradabad was requested by Sh Rati Ram. The reply receipt from the bank is Ex.PW1/25 intimating that the bank certificate in question did not appear to have been issued b y the said bank. Similarly letter was sent to Manager, Allahabad Bank to confirm the issuance of bank realization certificate dated 19.08.94 Ex.PW1/26 under the signature of Sh Rati Ram. As regards the CBI V/s Ya Mut Ioon Page 7 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 genuineness of C.A Certificate, the Institute of Chartered Accountants of India was approached. The institute replied disclaiming any knowledge about the applicant firm.
This witness was cross examined by accused Gulam Rassol wherein this witness admitted that in respect of both the applications for licence, M/s Ya Mut Ioon is the applicant. He also admitted that accused Gulam Rasool has not visited his office in connection with the processing of this file and licence.
This witness was not cross examined on behalf of other accused persons despite giving opportunity.
11. PW-2 Sh Daya Nand Sharma is the postman who has deposed that he was entrusted with the dak of Abu Fazal Enclave and has stated that M/s Ya Vari So and Ya Moot Ioon was not in existence in his beat and has further stated that the dak of the said firms were received at 353, Abu Fazal Enclave but as said address was not in existence the said dak was returned. Later on, accused Syed Ahmed Khan met him and said that the post by name of above said firms may please be handed over to him. Later on, the said accused Syed Ahmed Khan took one room on rent in Abu Fazal Enclave and displayed the board of above said firms there and after that this witness used to deliver the dak of above said firms on the said room to accused Syed Ahmed Khan present in the Court.
This witness was not cross examined on behalf of the accused persons despite giving opportunity.
12. PW-3 S.Mahto is the witness from the office of Joint Director General, Moradabad and has deposed that on 22.11.96, he had handed over the documents to CBI vie seizure memo Ex.PW3/A. He has further seen Ex.PW1/24, Ex.PW1/25 and Ex.PW1/26 bearing the signatures of Asstt. General Director Sh Rati Ram on Ex.PW1/24 and Ex.PW1/26.
This witness was not cross examined on behalf of the accused persons despite giving opportunity.
CBI V/s Ya Mut Ioon Page 8 of 26RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014
13. PW-4 is Mohd Anis Jr. Investigator, District Industry Centre Moradabad. He has proved the receipt memo Ex.PW5/A vide which documents were handed over. He has deposed that as per record Sayed Ahmed Khan had applied for registration of firm M/s S.A Karkhanadar which was verified by Sh Banwari Lal Sr. Investigator and has identified his signatures on Ex.PW5/B. Mr Banwari Lal recommended for registration as manufacturers of moulding of brass wares etc. The certificate of registration was sent through General Manager to the party and same was proved as Ex.PW5/C. During cross examination, the witness stated that Sh Bawari Lal Sr. Investigator is still in service and is posted as Badaiyu. On the basis of investigation and recommendation, this firm was registered. This witness admitted that Sh Bawari Lal did not give any detailed verification report and the witness volunteered that the report is on a format.
14. PW-5 is Sh Mahender Singh, Asstt. Government Examiner of Questioned Documents, Shimla has deposed that he is Master of science in Chemistry and has received his specialized training in Scientific Examination of documents including handwriting identification and forgery detection from Government of India Laboratory at Hyderabad for about three years. He further deposed that he is in this profession for the last 25 years and have independently examined thousand of documents. He further deposed that the documents of this case were received for examination in our lab vide SP, CBI letter dated 24.09.1996 Ex. PW5/A1 and documents are: stamped and marked as Q1 to Q3 on Ex. PW1/M Q4 on Ex. PW1/L, Q5 to Q12 on Ex. PW1/B running in four sheets, Q13 on Ex. PW1/D, Q14 on Ex. PW1/E, Q15 on EX. PW1/F, Q16 on Ex PW1/G, Q17 on Ex. PW1/H, Q18 on Ex. PW1/I, Q19 to Q21 on Ex. PW1/J, Q22 on Ex. PW1/K, Q23 on Ex. PW1/S, Q24 to Q26 on Ex. PW1/C, Q27 on Ex. PW5/A2, Q28 to Q37 on Ex. PW1/T running into four sheets, Q38 to Q40 on Ex.
CBI V/s Ya Mut Ioon Page 9 of 26RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 PW5/A3, Q41 on Ex. PW1/U, Q42 to Q45 on Ex. PW1/12, Q46 on Ex. PW1/11, Q47 to Q50 on Ex. PW1/1 running into two sheets, Q51 on Ex. PW1/7, Q52 on Ex. PW1/8, Q53 & 54 on Ex. PW1/9, Q55 on Ex. PW1/10, Q56 & 57 on Ex. PW1/16, Q58 & Q59 on Ex. PW1/17, Q60 on Ex. PW5/A-4, Q61 on Ex. PW5/A5, Q62 to Q64 on Ex. PW5/A6, Q65 to Q76 on Ex. PW1/21 running into five sheets, Q77 & Q78 on Ex. PW1/18, Q79 to Q81 on Ex. PW1/23 and Q82 & 83 on Ex. PW1/22, specimen writings/signatures purported to be of Smt. Syeeda Begum stamped and marked S1 to S10 Ex. PW5/A7 to A17 respectively; Specimen writings/signatures purportedly to be Smt. Safia Begum stamped and marked S183 to S226 Ex. PW6/12 to Ex. 6/34 in RC 5(E)/95 and photo copies marked Ex. PW5/A17 to A39. Her admitted signatures/writing marked A1,A2,A7 to A15, mark Ex. PW9/D3, Ex. PW9/D1, Ex. PW9/D11, Ex. PW9/D4 to D10 and photocopies Ex. PW5/A40 to Ex. PW5/A49 respectively; Specimen writings/signatures purported to be of Sh. Syed Ahmed Khan marked S1 to S182 mark Ex. PW6/2 to PW6/11, PW9/C-1 to PW9/C-81 in RC 5(E)/95 and photocopies Ex. PW5/A50 to Ex. PW5/A-140 respectively; admitted writing and signatures A4 and A16 to A18 marked PW9/D-1 and PW9/D2 in RC 5(E)/95 and photocopies Ex. PW5/A41 and Ex. PW5/A141 respectively; Specimen writing/signatures purported to be of Sh. Ashwani Kumar stamped and marked as S-11 to S22, S24, S26 and S28 to S36 Ex. PW5/A-142 to PW5/A-154 respectively; sample seal impression from one rubber stamp which were stamped and marked as S23 on Ex. PW5/A148, S25 on Ex. PW5A/149 and S27 on Ex. PW5/A-150 respectively, the admitted seal impression marked A16 on Ex. PW5/A-155.
This witness has proved his report regarding the questioned documents as Ex.PW5/A-156 as well as furnished his reason of opinion vide Ex.PW5/A-157.
This witness was not cross examined on behalf of the accused persons despite giving opportunity.
15. PW-6 is Sh Vijay Kumar Postal Asstt. Post Office Greater CBI V/s Ya Mut Ioon Page 10 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 Kailash New Delhi. He has deposed that during the year 1993, he was working as postman in Jamia Nagar Post office, New Delhi. He stated as and when Sh Daya Nand Sharam postman was on leave, he used to look after his work. In that year, a registered letter was received in the post office in the name of M/s Ya Moot Ioon which was delivered by him to Syed Ahmed. He further identified the accused in the Court.
During cross examination, this witness stated that he delivered the registered letter against slip. CBI official has recorded his statement but he did not remember the name of the official. He did not ask him for the letter delivery slip. He was not shown the registered letter.
16. PW-7 is Sh Banwari Lal Manager Credit in the office District Industries Centre, Bedaun, UP. This witness has deposed that in the year 1994, he was posted as Senior Investigator in the office of Distt. Industries Centre, Moradabad, UP. On the application of Sh S.A Karkhanadar, he was marked for verification for M/s S.A Karkhandar for registering the firm as SSIU. Likewise, he has conducted the personal verification and submitted his report Ex.PW5/B. The SSIU registration is Ex.PW5/C which was issued to the firm M/s S.A Kharkanadar under the signatures of Sh R.S Upadhayay, the then General Manager and this witness identified his signatures at point A. This witness was not cross examined on behalf of the accused persons despite giving opportunity
17. PW-8 is Sh Mahabir Prasad Shukla. He has stated he joined United Bank of India on 28.10.64 in Kanpur Branch. He was promoted in the year 1996 and was posted at Naya Ganj Branch, Kanpur. He joined Moradabad branch on 6.5.91. He was attached with the branch upto 11.02.95. This witness after seeing the current account no. 803, states that the said account was opened in United Bank of India Moradabad branch in the name of M/s Ya Vari So. In the account opening form, Mrs Safia Begum was the proprietor of the firm and this witness has given the CBI V/s Ya Mut Ioon Page 11 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 permission to open the account which bears his signatures at point A on Ex.PW9/D3. He has also stated that on the account opening form No.835, in the name of Ya Mut Ioon. The proprietor of the firm shown as Syeeda Begum and Sh Syed Ahmed was shown as Manager of the said firm. Both of them were authorized to operate the said accounts. He had given the permission to open the account by signing at point A on Ex.PW9/D1. The account opening form was also signed by the then Dy. Manager Sh M.P. Sonkar. This witness identified his signature on Ex.PW9/D1. This witness also identified the signatures of accused Syed Ahmed, Safia Begum and Syeeda Begum on Ex.PW9/D3 and Ex.PW9/D-1 as they had signed in his presence. This witness has also proved various documents relating to the transactions made on behalf of the firm and has also proved that the import documents were retired on the request of proprietor of M/s Ya Mut Ioon.
This witness was not cross examined on behalf of the accused persons despite giving opportunity
18. PW-9 is Sh Ashwani Kumar Sawhney who deposed he is Chartered Accountant by profession since 1983. On seeing the past performance certificate Ex.PW5/A6 and Ex.PW1/E in favor of M/s Ya Mut Ioon, he has deposed that he never issued any such certificate in favor of M/s Ya Mut Ioon. He further deposed that he has never worked for the said firm and he did not know any person in the name of Syed Ahmed. He further proved the documents Ex.PW9/1 to Ex.PW9/7 issued by him. He further deposed that during investigation, he had handed over copies of his letter heads to IO/CBI.
During cross examination on behalf of accused Syed Ahmed, this witness stated that he did not remember whether IO/CBI had taken his statement or not though he was called in CBI office. He further stated that he had not lodged any complaint in respect of his documents. He further denied the suggestion that he had ever used such kind of letter head. He admitted that CBI officials had shown him the documents CBI V/s Ya Mut Ioon Page 12 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 Ex.PW5/A6 and one document of the bank.
This witness was not cross examined on behalf of accused Gulam Rasool despite being given opportunity.
19. PW-10 is Sh Damodar Balaram Jadhav. He has stated that in the year 1994-95 he was working as Custom House Agent in the name of M/s Universal Cargo forwarders situated at Wazukotak Road, Mumbai and admitted that he has received the documents for clearance of imported items on behalf of M/s Ya Mut Ioon of Moradabad as they were doing the work of only export. He has handed over the documents of import of the firm M/s Ya Mut Ioon to Mahavir Shipping Agency for doing the job of clearance. He has further proved the documents vide brass scrap was imported by the firm M/s Ya Mut Ioon as Ex.PW10/A to Ex.PW10/P. He further stated that documents for clearing was handed over to him by Sh. Gulam Rasool. He did not identify the accused because long period have lapsed since 1994. He further stated that he handed over these documents to the CBI vide production memo Ex.PW10/Q. This witness was not cross examined on behalf of the accused persons despite giving opportunity.
20. PW-11 is Sh Manok Kumar Mishra. He has deposed that he was posted as Branch Manager in the United Bank of India, Prince Road, Moradabad branch. That branch received a letter Ex.PW1/24 regarding confirmation of genuineness of bank realization certificate dated nil for Rs. 61,70,661.34/- which is Ex.PW1/Y. In reply, the bank had written a letter Ex.PW1/25 stating therein that the referred certificate did not appear to have been issued by the branch.
During cross examination on behalf of accused Syed Ahmed Khan, this witness stated that an inquiry was made before issuing the letter Ex.PW1/25. He stated that he had not seen the inquiry report conducted by Sh R.S Rastogi. He stated that he had submitted the documents to the police which were asked by investigating agency. He CBI V/s Ya Mut Ioon Page 13 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 further admitted that letter Ex.PW1/25 had not been issued under his signature. He denied the suggestion that he has not he had not checked the documents of the firm.
This witness was not cross examined on behalf of accused Gulam Rasool despite being given opportunity.
21. PW-12 is Sh A.K Sakhuja, Asstt. Director, Export Promotion Council for Handicrafts, New Delhi. He deposed that M/s Ya Mut Ioon vide its application dated 23.09.12 received in his office vide diary no. 25075, had applied for enrollment as member as well as registration with the Export Promotion Council, Handicrafts. The application has been proved as Ex.PW12/1. The application was processed in the office vide note sheet Ex.W12/2 and the registration cum membership certificate No. EPCH/REGN/6696/92-93 was issued on 09.03.93 under the signatures of Sh R.K Verma, the then Export Promotion Officer. This witness identified signature of Sh R.K Verma on the RCNC certificate Ex.PW12/3. He stated that the said firm was enrolled as member of the council for the year 1992-93 vide membership No. EPCH/MEM/6268/1992-93 dated 09.03.93. The firm had not paid the membership renewal charges for the year 1993-94 and accordingly, the membership of firm was cancelled on 31.03.94. The letter in this regard is Ex.PW12/5. Sh Harbans Lal, Controller of Imports and Exports vide letter dated 13.02.95 verified the issuance of RCMNC certificate in favour of M/s Ya Mut Ioon, the said letter has been proved as Ex.PW12/6. In reply to the letter, he had written a letter dated 16.02.95 verifying therein that membership registration number of the firm had been cancelled. The letter is Ex.PW12/7.
This witness was not cross examined on behalf of accused persons despite being given opportunity.
22. PW-13 is Sh J.S Kapoor. He has deposed that he was working as Deputy Manager in the Allahabad Bank, Civil Line, Moradabad branch from September 1993 to 1995. He deposed that the bank received a CBI V/s Ya Mut Ioon Page 14 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 letter dated 24.02.95 from Sh Rati Ram, Asstt. Director General of Foreign Trade seeking verification of genuineness of bank realization certificate dated 19/08/94. In reply, the bank had vide letter Ex.PW1/26 confirmed that the bank has issued the certificate No. FE/278 dated 19/08/94 in account of M/sYa Mut Ioon, Moradabad. He further stated that vide letter Ex.PW1/W addressed to DGFT, Ministry of Commerce, Udyog Bhawan, Delhi, the bank has advised them that there is no transaction in the account of M/s Ya Mut Ioon since October, 1998, the aforesaid account is inoperative and no exports proceedings since been realized in this account.
During cross examination on behalf of accused Syed Ahmed Khan, this witness stated that the bank has not attached the statement of account along with letter Ex.PW1/W. He denied the suggestion that there was export transaction in the account of M/s Ya Mut Ioon.
This witness was not cross examined on behalf of accused Gulam Rasool despite being given opportunity.
23. PW-14 is Sh Iftikar Ahmed. He deposed that he was working as Deputy Manager in United Bank of India, Prince Road, Muradad from June, 1996 to March, 1999. Vide seizure memo Ex.PW14/1, he had supplied documents Ex.PJ42 to PJ45, Ex.PJ56 to PJ99 and Ex.PW14/2 to CBI. He also supplied original bill of entries in respect of M/s Ya Wari So and M/s Ya Mut Ioon. The said letter is Ex.PW14/3. Further, vide production memo dated 26/10/96 Ex.PW14/4, he had supplied the certified copy of FIBC register maintained in United Bank of India. The seizure memo vide which certified copy of FIBC register was seized is Ex.PW14/5.
During cross examination on behalf of accused Syed Ahmed, this witness stated that he did not know who had signed the cheque on behalf of M/s Ya Mut Ioon which were supplied by him. He further deposed that he did not know whether the signature on various cheques are of Syed Ahmed or Safia Begum. He further admitted that debit or credit CBI V/s Ya Mut Ioon Page 15 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 vouchers are only issued when the account is in operation.
This witness was not cross examined on behalf of accused Gulam Rasool despite being given opportunity.
24. PW-15 is Sh Bhagwan Dass. He deposed that he retired from the post of Chief Manager, SBI, RBO, Moradabad, UP on 31.07.2007. From October, 1995 till December, 1998, he was posted there. During that period, he received a letter from CBI dated 14.05.96. In reply thereto, he enclosed the original account opening form of Saving Bank A/C No. 40599 of Sh Syed Ahmed. Said letter has been proved as Ex.PW18/A. He has further identified the signatures of Sh B.K Kapoor, Dy Manager who had worked under him on Ex.PW9/D2. He also proved the certified copy of statement of account No. 40599 of Sh Syed Ahmed khan as Ex.PW18/B. This witness was not cross examined on behalf of the accused persons despite giving opportunity.
25. PW-16 is Sh Vinod Kulin Kant Dagha. He deposed that he was the partner in the partnership firm i.e Mahavir Shipping Agency. The other partner was Vijay Ganatra. He stated they used to receive the documents from Importer and forward the same to custom department for clearance of the imported goods. He has identified the signatures of Vijay Ganatra on documents Ex.PW15/L, M, N. He further deposed that he was the Director of M/s Mulji Damji and Co Pvt Ltd. The other director of Shamji Narshi Dand. He identified the signatures of Shamji Narshi Dand on Ex.PW15/O, Ex.PW15/P and Ex.PW10/F & Ex.PW10/G, Ex.PW19/1.
This witness was not cross examined on behalf of the accused persons despite giving opportunity.
26. PW- 17 is Sh. R.K. Verma, Director in Export Promotion Council for Handicrafts, Vasant Kunj, New Delhi. He has deposed that during the year 1992-1993, he was Export Promotion Officer in above organisation. M/s Ya Mut Ioon had applied for membership/registration with their CBI V/s Ya Mut Ioon Page 16 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 organization on 23rd September, 1992 and the membership was granted to them on 09.03.1993 for the year 1992-93. The membership was granted to them at their address of Moradabad as Head Office. Subsequently, on 21.06.1993 they received a request from them for change of address from Moradabad to New Delhi. On 05.07.1993, they amended their address in their records. M/s Ya Mut Ioon is the proprietorship concern and Ms. Saeeda Begum was the sole proprietor of the said concern. For the financial year 1993-94, they had not paid annual membership fee to their organisation and thus they had been declared as defaulter. On seeing the document already Ex.PW12/2, the witness stated that it was the processing sheet under ITC policy of government of India. The notesheet is Ex. PW-17/1. The notesheet also a note that the said company was already member in 1989-90 and same has been cancelled due to non payment of membership fee in 1990-91. The said note is from X to X1. An intimation vide letter dated 05.07.1993 addressed to the aforesaid proprietorship regarding change of their address from Moradabad to New Delhi was made which is Ex.PW-17/2. He stated that the registration cum membership certificate (RCMC) which is already Ex.PW12/3 has his signature at point A and necessary fact regarding change of address also reflected under his signatures at point B and C. The document Ex.PW12/4 bears his signature at point A and the copy of the same which has his signature at point A and his official seal at point B. The said copy is exhibited as Ex.PW-17/3. The RCMC was sent vide letter dated 09.03.1993 and this letter bears his signature at point A and the said letter is Ex.PW17/4. There is another letter dated 24.02.1993, issued by the witness to the proprietorship firm M/s Ya Mut Ioon, the said letter bears his signature at point A and is exhibited as Ex.PW-17/5. The original copy of RCMC of aforesaid proprietorship concern bears my signatures at points A, B and C and the same is Ex.PW-17/6.
This witness was not cross examined on behalf of the accused persons despite giving opportunity.
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27. PW-18 is Sh Layak Ram. He deposed that he had retired from the post of Inspector CBI SC-II Branch New Delhi on 31.05.2010. He had joined the SIU-VIII branch/CBI in the year 1969 and remained there till 31.12.96. In the year 1995, he was posted as SI. Sh Devender Singh was then posted as DY. SP CBI SIU-VIII New Delhi and he had worked under him and had seen him signing during the course of my official duty and for that reason, he can recognize his signature. At that time, Sh. Arun Kumar was posted as S.P CBI and looking after the work of SIU-VIII. He stated that he was conversant with his signature during course of his official duty and could recognize the same. RC 6/95 SIU-VIII was registered on the complaint of Sh A.K.M Chankankar, DY. DGFT. The said RC bears the signature of SP Sh. Arun Kumar at point A on each page. The RC is being exhibited as Ex. PW18/A. After registration of the case, the investigation was marked to Sh Devender Singh DY. SP. In the month of April 1996, he was promoted to the post of Inspector, CBI SIU-VIII. During course of investigation, he had taken the specimen signature of Smt. Sayeeda Begum from S1 to S10 which was already exhibited as Ex. PW5/A7 to PW5/A16. The said exhibits bears my signatures at points A on each specimen sheet.
He further stated that Ex PW5/A-142 to PW5/A-154 was the specimen writing/signature of Sh Ashwani Kumar Sawhney and the same bears the signature of Sh Devender Singh at point A on each sheet which he identified.
During course of investigation the documents were seized vide seizure memo dt. 29.03.96. The said seizure memo bears the signature of Sh Devender Singh the then DY. SP at point A which he could recognize and seizure memo is being exhibited as Ex PW18/A. Ex. PW10/Q is the seizure memo which bears the signature of Sh Devender Singh the then DY. SP at point B which I can recognize. Vide seizure memo dt. 07.10.95 certain documents were seized by Sh Devender Singh the then DY. SP his signature is at point A and seizure memo is exhibited as Ex PW18/B(objected to on the ground of mode of proof). Ex PW14/4 is CBI V/s Ya Mut Ioon Page 18 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 the seizure memo and same bears the signature of Sh Devender Singh at point B which he could recognize. Vide seizure memos Ex.PW 18/C to Ex.PW18/E certain documents were seized by Sh Devender Singh the then DY. SP. The witness further proved seizure memo Ex PW4/A. He further proved the charge sheet by recognizing the signature of IO Devender Singh on each page of the charge sheet. The witness further stated identified the signature of Sh. O.P Galhotra the then SP SIU-VIII at point B on the last page of the charge sheet.
The witness further proved the production memo which is already Ex.PW-14/4 bearing the signature of Sh. Devender Singh at point B . This witness further reiterated the contents of the chargesheet with regard to the specimen signature Ex.PW5/A-50 to A-140, S-183 to S-226, Ex.PW7/A-17 to A-39, S-227 to S-244, S-243 to 264, S-265 to S-270, S-273 to S-274.
During cross examination, this witness stated that he was never entrusted with the investigation of this case and he has given the statement before the Court on the basis of documents available in the record.
This is all as far as prosecution evidence is concerned in the matter.
Arguments advanced and case law relied upon :
28 I have gone through the evidence led by the prosecution to prove its case as well as heard the argument addressed by both the sides.
29 Initially, the charge was framed against M/s Ya Mut Ioon, Proprietorship concerned Mr. Syed Ahmed Khan and Mr. Gulam Rasool u/s 120B/420/468/471 IPC.
30 First of all, I want to decide whether firm can be charged as an accused. It is matter of record and admitted by the CBI also that Ya CBI V/s Ya Mut Ioon Page 19 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 Mut Ioon is a proprietorship concern whose proprietor was Mrs. Syeeda Begum. The section 305 Cr.P.C. provides the procedure when corporation or registered society is an accused. In clause (1) of section 305 Cr.P.C.
the Corporation means an incorporated company or other body of corporate and includes a society registered under the Societies Registration Act, 1860. Admittedly, Ya Mut Ioon is not a company nor a society, therefore, this firm cannot be termed as artificial person. However, section 11 IPC defines "person" and states that word "person" includes any company or association or body of persons whether incorporated or not. Therefore, as per section 11 body of persons in whatever name can be charged as an accused. In the present case prosecution has examined Sh. Mahabir Prasad Shukla as PW8 who has stated that he joined Murababad Branch of United Bank of India on 06.05.1991 and attached with the branch up to 11.02.1995. The witness after seeing the current account opening form of A/c No. 835 in the nae of Ya Mut Ioon the proprietor of the firm shown as Syeeda Begu and Syed Ahmed Khan was shown as Manager of the said firm. He also deposed that Syeeda Begum and Syed Ahmed Khan, both were authorized to operate the said account. He had given the permission to open the account by signing at point A on Ex. PW9/D1. This witness has also identified the signatures of Syed Ahmed Khan, Safia Begum and Syeeda Begum on Ex. W9/D-3 and Ex. PW9/D1 as they had signed in his presence.
It is pertinent to mention that this witness was not cross examined by accused person. From the bare perusal of EX. PW9/D-1 i.e. account opening form of A/c N. 835 in the name of Ya Mut Ioon, Syeeda Begum is shown as proprietor and Syed Ahmed Khan is shown as Manager.
Therefore, in terms of section 11 of Indian Penal Code, M/s Ya Mut Ioon is a body of persons hence, can be charged as an accused.
31 From the evidence which has come on record, the Value CBI V/s Ya Mut Ioon Page 20 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 Based Advance License was applied in the name of firm, by Mrs. Syeeda Begum and accused Syed Ahmed Khan, son of Mrs. Syeeda Begum represented and followed up the clearance of license in the office of Director General Foreign Trade (hereinafter called DGFT). As all the three accused persons were charged for offence u/s 120B for criminal conspiracy r/w section 420/468/471 IPC, before deciding the liability of offence of these two accused persons who are facing trial, the first question is to be decided whether there was any conspiracy to commit the criminal offence between the accused persons.
32 For a charge of criminal conspiracy, prosecution is under a duty to prove whether there was an agreement to commit the offence between accused persons. To establish charge of conspiracy there must be agreement, there need not be proof of direct meeting or combination, nor need the parties be brought into each other's presence. The agreement may be inferred from circumstances raising a presumption of an common concerted plan to carry out unlawful designs. So again it is not necessary that all should have joined in the scheme from the first, those who come in at later stage are equally guilty, provided the agreement be proved. The conspiracy need not be established by proof which actually brings the parties together, but may be shown like any other fact by circumstantial evidence, detached act of different person against including their written correspondence and entries made by them relative to the main design. In conspiracy direct evidence will be seldom forthcoming and it is necessary to look at the circumstances to see whether conspiracy actually existed. It is not necessary to establish by direct evidence that accused persons commit entries into an agreement to conspire. The agreement of conspiracy lies in the consorted offence and once reasonable ground are made out for belief for the instance of conspiracy amongst the accused, the acts of each conspirator in furtherance of its object are evidence against each of others. Section 10 of Indian Evidence Act states that where there is reasonable ground to CBI V/s Ya Mut Ioon Page 21 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of the, is a relevant fact as against each of the persons believed to so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. Therefore, to prove the charge of conspiracy no direct proof is required which is seldom forthcoming only a reasonable ground to believe is sufficient. Moreover, it is well settled principle of law that a conspiracy is always hatched in secracy.
33 In the present case it is not disputed that accused Syed Ahmed Khan is the son of Mr. Syeeda Begum aged about 90 years who was proprietor of the firm namely Ya-Mut-Ioon. It has come in the evidence that Mrs. Syeeda Begum vide her letter dated 20.08.1993 has authorized her son Syed Ahmed Khan to deposit the application of Value Based Advance License along with required documents in the office of Joint DGFT. Accused Syed Ahmed Khan has pursued the said license in the office of DGFT and got issued the license in question. Accused Syed Ahmed Khan has submitted a false bank realization certificate no. NIL dated NIL showing export performance of the firm for the year 1992-93 for Rs. 61,71,920/-. Not only this, the legal undertaking (LUT) was also witnessed by Syed Ahmed Khan and his wife Safia Begum. The import documents against the said licenses were retired from the bank by accused Syed Ahmed Khan. PW2 has categorically stated that dak of the firm was returned back as no office was in existence and later on accused Syed Ahmed Khan met him and said that the post by name of above said firm may please be handed over to him. Later on, the said accused Syed Ahmed Khan took one room on rent in Abu Fazal Enclave and displayed the board of above said firm and after that this witness used to deliver the dak of above said firm on the said room to accused Syed Ahmed Khan CBI V/s Ya Mut Ioon Page 22 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 present in the court. Witness has also correctly identified the accused in the court. This witness was not cross examined by the accused. PW6 has also supported the testimony of PW2 Daya Nand Sharma.
34 Now, I come to accused Gulam Rasool who is also facing trial for the above mentioned offences. As per the case of the prosecution, accused Gulam Rasool is also part of criminal conspiracy to commit the offence and the allegations levelled against this accused by the prosecution are that license resulted in import of brass scrapes worth Rs. 68,87,526.17 P. by inducing the DGFT. The imported goods were got cleared from the custom through three Clearing House Agent (CHA). The service charge in this respect were received by one of them i.e. M/s Univeral Cargo Forwarders, Mumbai from accused Gulam Rasool, which fact is stated to be connect him with the conspiracy.
35 To prove this fact that Clearing House Agent (CHA) has received the service charges from accused Gulam Rasool, prosecution examined PW10 Sh. Damodar Balaram Jadhav, Custom House Agent, who has admitted that documents for clearing were handed over to him by accused Gulam Rasool. He further stated that he cannot identify Gulam Rasool because long period have been lapsed since 1994. This witness is not cross examined by the accused Gulam Rasool.
36 In criminal trial, the onus is always on the prosecution to prove the charge beyond reasonable doubt. The above named witness did not identify accused Gulam Rasool in the court. The only piece of evidence against accused Gulam Rasool is that this witness has admitted that he has received service charges from Gulam Rasool. But he did not identify the accused for the reasons mentioned above. This accused could have been identified by this witness by disclosing his particulars regarding parentage/address etc., but it was not happened in this case. It is also pertinent to mention that this witness was not cross examined by CBI V/s Ya Mut Ioon Page 23 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 the CBI for the reasons best known to it. Prosecution was under a duty to prove that goods were got cleared through accused Gulam Rasool s/o late Raise Dullah r/o 7-D/39, Mohalla Kishrol, Moradabad, UP. PW15, Sh. Damodar Balaram Jadhav has only stated that he has received the service charges through Gulam Rasool. Ld. Counsel for accused has contended that there may be many person in the name of Gulam Rasool and on the basis of evidence come on record, it cannot be held that present accused has paid the service charges to CHA. Accused Gulam Rasool has also contended that he has no concern with the present case and he has been falsely implicated. As observed above the onus was entirely on the prosecution to prove whether accused Gulam Rasool was part of the criminal conspiracy by cogent evidence on record but, it has not happened so in the present case. On the basis of evidence placed on record it cannot be held that accused Gulam Rasool s/o late Raise Dullah was part of the criminal conspiracy. In my considered view it will be very unsafe to convict accused Gulam Rasool only on the basis of single piece of evidence where even accused was not identified by PW15 Damodar Balaram Jadhav. Besides this evidence there is no other evidence against accused Gulam Rasool. In my considered view accused Gulam Rasool is entitled to be given benefit of doubt as evidence are deficient against him. Hence, he is acquitted in the present case.
37 As I have held that there was no conspiracy between the accused Syed Ahmed Khan and accused Gulam Rasool, hence, now I have to decide as to what offence Syed Ahmed Khan has committed on the basis of evidence proved on record by the prosecution. From perusal of the record there are numerous evidence against accused Syed Ahmed Khan to the effect that he has forged the documents and used such document to induce Government of India i.e. o/o DGFT and have caused wrongful loss of Rs. 46,15,000/- approximately by way of saving custom duty on the import material against license no. P/K/2320629 dated 28.09.1993 and P/K/2300628 dated 28.09.1993 and have caused wrongful gain to CBI V/s Ya Mut Ioon Page 24 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 himself and corresponding loss to Government of India by saving custom duty to that extent. In this regard, prosecution has proved on record that accused Syed Ahmed Khan was authorized by M/s Syeeda Begum, 90 years old mother, being proprietor of M/s Ya Mut Ioon to represent the firm in the office of the DGFT for issuance of Value Based Advanced License. The said authorization letter is duly proved on the record. It is also proved on record that accused has imported Brass Scrapes against the said license and the documents were retired by the bank at the behest of accused Syed Ahmed Khan on behalf of firm. It is pertinent to mention that in the present case the account number 835 in United Bank of India, was maintained in the name of firm of which the proprietor was Syeeda Begum and Syed Ahmed Khan, present accused shown as Manager of the said firm. It is also proved that both of them were authorized to operate the said account and PW8 Mahabir Prasad has given permission to open the account by signing it at point A on Ex. PW9/D1 i.e. account opening form. As per evidence of PW9 Ashwani Kumar Sawhney, the past performance certificate Ex. PW5/A6 and Ex. PW1/E in favour of firm was not genuine and was never issued by the Chartered Accountant. From the evidence of PW1 A.K.M. Chakanka, joint DGFT, the LUT filed along with the application for issuance of the license was also forged which was also witnessed by accused Syed Ahmed Khan and his wife. PW9 Government examiner of questioned documents (GEQD) has opined that the signatures are of accused Syed Ahmed Khan. PW2 and PW6 both postmen have also deposed in the court that Dak in the name of firm was received by Syed Ahmed Khan and they have also stated that accused has taken one room on rent where board in the name of firm was put on and accused has requested the postmen to deliver the Dak in the said room in the name of firm. Both these witnesses have identified by accused Syed Ahmed Khan in the witness box stating that he is the same person to whom they used to deliver the dak in the name of firm. The admitted signatures on the LUT and gate pass issued by the office of DGFT and account opening form, the opinion of GEQD is positive CBI V/s Ya Mut Ioon Page 25 of 26 RC NO.6(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/471 IPC DOD: 15.04.2014 to the effect that these signatures were of accused Syed Ahmed Khan.
38 In view of my above reasons, I have no hesitation on the basis of evidence come on record that it was accused Syed Ahmed Khan who was dealing with the business of the firm Ya-Mut-Ioon as his mother was 90 years old. She was acting only on the papers. He being the Manager of the firm also authorized to sign the cheque of the account of the firm and accused has represented the firm in the office of DGFT and got issued Value Based Advance License no. P/K/2320629 dated 28.09.1993 and P/K/2300628 dated 28.09.1993 on the basis of forged Chartered Accountant's certificate, Bank Realization Certificate and legal undertaking and which license would not have been issued to the firm for the deception played with the help of said fabricated documents. Hence, accused has caused wrongful loss to the tune of Rs. 46,15,000/- on account of custom duty to the Government of India by misusing the term of license.
39 Therefore in view of my above reasons, I am of the considered view that there was no conspiracy between accused Gulam Rasool and Syed Ahmed Khan to commit criminal offence and it is only accused Syed Ahmed Khan who has forged the documents to obtain the license in question and used the same for committing cheating and thereby committed offence u/s 420/468/471 IPC. Hence, accused Syed Ahmed Khan is convicted for having committed offence u/s 420/468/471 IPC.
Announced in the open court (Pooran Chand)
on 15.04.2014 Chief Metropolitan Magistrate:
Central District:Tis Hazari Courts
Delhi
CBI V/s Ya Mut Ioon Page 26 of 26