Delhi District Court
Cbi vs . G.C.Gupta & Ors. on 16 October, 2014
Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
: IN THE COURT OF :
: SH.KANWAL JEET ARORA :
SPECIAL JUDGE, CBI (P.C.ACT), DWARKA COURTS,
NEW DELHI.
In the matter of :
CBI VS. G.C.GUPTA & ORS.
C.C.NO.: 35/2011
FIR NO. : RC7 (E)/2001EOWI/DLI
dated 29.06.2001
Under section : 120B r/w 420, 467,
468 & 471 IPC and 13 (2) read with
13 (1) (d) of the PC Act, 1988
In the matter of:
CENTRAL BUREAU OF
INVESTIGATIONS (C.B.I)
V e r s u s
(i) Girish Chandra Gupta,
S/o. Shri. Mahesh Chandra,
R/o: W86/C33, Saiduljaib Extn.II,
New Delhi
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Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(ii) Sanjay Raina,
S/o. Shri. K.N.Raina,
R/o: F269 C, Dilshad Garden,
LIC Flat, Delhi
(iii) Trilochan Singh Bedi,
S/o. Late Shri. I.S.Bedi,
R/o: K33, Naveen Shahdara,
Delhi
(iv) Rakesh Mudgil,
S/o. Shri. Rameshwar,
R/o: B6/A2, IIT Campus, Hauzkhas,
New Delhi.
... ACCUSED PERSONS.
Date of Institution : 28.06.2003.
Date on which the case was : 10.10.2011.
received on transfer in this court
Date of reserving judgement : 10.09.2014.
Date of pronouncement : 16.10.2014.
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Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Memo of Appearance:
(i) Sh.Harish Kumar Gupta, Ld.Special Public Prosecutor for
CBI.
(ii)Sh.Ramesh Gupta, Ld.Senior Advocate along with
Sh.C.L.Gupta, Advocate, Ld. Counsels for accused G.C.Gupta.
(iii)Sh.Rakesh Malhotra, Advocate, Ld.Counsel for accused
Sanjay Raina.
(iv)Sh.I.S.Kapoor, Advocate, Ld.Counsel for accused Trilochan
Singh Bedi.
(v) Sh.R.K.Kohli, Advocate, Ld.Counsel for accused Rakesh
Mudgil.
: J U D G E M E N T :
1.Insurance is an equitable transfer of the "risk of a loss", from one entity to another in exchange for a payment, called premium. An insurer is a company selling the insurance; whereas insured or policy holder, is the person or entity buying the insurance policy. Marine Insurance covers the loss to the cargo, transported through any mode of C.C.No: 35 / 2011 Page No.3 of 181 Judgement in the matter of:-
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transport, held between the point of origin and final destination. The transaction involves the insured assuming a guaranteed and known relatively small loss, in the form of premium to the insurer, in exchange for the insurer's promise to compensate the insured, in case of any financial loss.
2. Last few decades have seen a marked increase in occurrences of international economic frauds and the Marine Insurance, has not by any means been excluded from these trends. In fact Marine Insurance has emerged as one of the primary targets of maritime frauds. Fashionable method of defrauding the underwriter Insurance Company, is the presentation of fraudulent documentation to substantiate a fraudulent claim.
3. One such marine frauds with National Insurance Company (hereinafter referred to as NIC), came to the fore, vide an "Internal Vigilance Enquiry" held by the C.C.No: 35 / 2011 Page No.4 of 181 Judgement in the matter of:-
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officers of the company culminating in initiation of present proceedings.
4. The precursor of the present case is a written complaint dated 06.02.2001 of Sh.K.Mahapatra, Chief Vigilance Officer, National Insurance Company Ltd., Head Office, Calcutta. On the basis of this complaint, FIR bearing Number RC7(E)/2001EOW1/DLI on 29.06.2001 was registered and investigated.
5. On conclusion of the investigations, CBI had filed the present charge sheet against accused Girish Chandra Gupta, Sanjay Raina, Trilochan Singh Bedi & Rakesh Mudgil on the allegations that Girish Chandra Gupta, the then Assistant Manager, DOXXIII, National Insurance Company during the year 199798, had entered into a criminal conspiracy with Sanjay Raina, Trilochan Singh Bedi & Rakesh Mudgil, the object of which was to obtain Marine Insurance Claim C.C.No: 35 / 2011 Page No.5 of 181 Judgement in the matter of:-
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amounting to Rs.2,87,775/ in favour of M/s Amit Industries, on the basis of false and forged documents, knowing or having reasons to believe them to be false and thus to cheat National Insurance Company. It is alleged that the Girish Chandra Gupta, being public servant criminally misconducted himself and as a member of the conspiracy, had facilitated accused Sanjay Raina, Trilochan Singh Bedi & Rakesh Mudgil to submit false & bogus documents in support of the claim thereby inducing National Insurance Company Ltd. to release payment of Rs.2,87,775/ in favour of M/s Amit Industries owned by accused Trilochan Singh Bedi and thus obtaining pecuniary advantage for him and corresponding wrongful loss to NIC.
6. Before proceeding further, to delve upon the matter, it is pertinent to have facts interse as emanating from the charge sheet, which led to registration of FIR and filing of the charge sheet by CBI in court, for trial of the accused persons. The same are as under: C.C.No: 35 / 2011 Page No.6 of 181 Judgement in the matter of:-
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F A C T U A L M A T R I X :
7. It is alleged that Marine Cargo Open policy bearing no. 360900/4400248/98 was issued by National Insurance Company Ltd., DOXXIII, Delhi for Rs.10 lacs to insured Sh.Trilochan Singh Bedi, Proprietor of M/s Amit Industries, K33, Navin Shahdara, Delhi and premium of Rs. 2,862/ was deposited in NIC office on 07.04.1998. It is alleged that a consignment was sent from M/s Amit Industries, New Delhi to M/s Laxmi Trading Company, Kolkatta, the consignee vide GR No. 9009 dated 15..04.1998 of M/s Bullet Road Carriers, New Delhi.
8. It is alleged that the consignee M/s Laxmi Trading Company intimated the loss to DOXVIII, Kolkatta, who purportedly appointed M/s Z.K. Consultancy Services Pvt. Ltd. for survey and forwarded the survey report to DOXXIII, C.C.No: 35 / 2011 Page No.7 of 181 Judgement in the matter of:-
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Delhi vide letter dated 23.04.1998. It is alleged that survey report of M/s Z.K. Consultancy Pvt. Ltd., Kolkatta was forwarded to Divisional Manager, NIC, DOXXIII, New Delhi vide letter dated 23.04.1998 under signatures of Sh.D.C.Mandal, Assistant Manager, NIC, DOXVIII, Calcutta, which was received by G.C.Gupta on 08.05.1998, who marked the same to Smt. Gopa Sahu for necessary action.
9. It is alleged that M/s Amit Industries also intimated the loss to DOXXIII, Delhi vide their letter dated 04.05.1998 which was received by G.C.Gupta, the then Assistant Manager on 12.05.1998.
10. It is alleged that claim note was prepared by Sh.M.L.Meena and was recommended by Smt. Gopa Sahu, Administrative Officer, for Rs.2,87,775/ which was passed by accused G.C.Gupta as Assistant Manager, NIC, DOXXIII, Delhi, in favour of insured i.e. M/s Amit Industries. C.C.No: 35 / 2011 Page No.8 of 181
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11. It is alleged that on the basis of said approval, cheque no. 229430 for Rs.2,87,775/ dated 08.06.1998 was issued. The said cheque was deposited in the current account no. 4567 of M/s Amit Industries, Oriental Bank of Commerce, Shahdara Branch, Delhi, authorized signatory of which was accused Tirlochan Singh Bedi. It is alleged that said cheque was credited on 20.06.1998.
12. It is alleged that during investigations it was revealed that M/s Z.K.Consultancy Pvt. Ltd. was not empanelled as surveyor either with NIC, Delhi or with NIC, Kolkatta during the relevant period and the report dated 22.04.1998 was signed by accused Sanjay Raina as V.Kaul of M/s Z.K.Consultancy Pvt. Ltd. It is alleged that D.C.Mandal, Assistant Manager had denied his signatures on the forwarding letter dated 23.04.1998 vide which the survey report was forwarded to Divisional Manager, NIC, DOXXIII, New Delhi.
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13. It is alleged that in this claim Rakesh Mudgil, Proprietor of M/s Recovery India International was appointed as Recovery agent, who received documents for recovery on
23.07.1998 from NIC, DOXXIII, Delhi, and Rakesh Mudgil vide his letter dated 02.12.1998 addressed to Divisional Manager, NIC, DOXXIII, Delhi offered 7% recovery in this claim which was accepted by G.C.Gupta, who received the letter on 30.12.1998. It is further alleged that Rakesh Mudgil had submitted a recovery bill for Rs.2561/ dated 30.12.1998 to NIC, DOXXIII, Delhi.
14. It is alleged that the recovery amount of Rs. 20,144/ was deposited with NIC vide banker's cheque dated 29.12.1998 drawn on M/s Jain Cooperative Bank, Shahdara, Delhi. It is alleged that this banker's cheque came from the account of M/s Webers India, which stands in the name of accused Sanjay Raina, who signed as surveyor and submitted C.C.No: 35 / 2011 Page No.10 of 181 Judgement in the matter of:-
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the survey report dated 22.04.1998, as Sh.V.K.Kaul of M/s Z.K. Consultancy Services Pvt. Ltd.
15. It is alleged that the documents submitted in support of the claim i.e. Survey / Investigation report, GR of the transporter as well as invoice / challan were bogus and forged as neither the consignee M/s Laxmi Electrical Company nor transporter M/s Bullet Road Carrier were in existence at the given addresses at relevant point of time.
16. It is alleged that all the accused persons thus in furtherance of the conspiracy entered into amongst themselves had cheated National Insurance Company by getting Marine Claim for Rs.2,87,775/ in favour of M/s Amit Industries on the basis of forged and fabricated documents.
17. It is further alleged that G.C.Gupta, officer of National Insurance Company Ltd. being Public servant had C.C.No: 35 / 2011 Page No.11 of 181 Judgement in the matter of:-
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criminally misconducted himself by abusing his official position as public servant in order to cause pecuniary advantage to other accused persons viz. Sanjay Raina, Trilochan Singh Bedi and Rakesh Mudgil.
18. It is alleged that all the accused persons have committed offenses punishable under Section 120B read with Section 420, 467, 468 & 471 IPC and 13 (2) read with 13 (1)
(d) of PC Act and also the substantive offences.
19. It is alleged that on conclusion of investigations, the report was submitted to the competent authority for necessary sanction for prosecution against the public servant G.C.Gupta, which was granted.
20. Whereafter, the present charge sheet was filed in court against all the accused persons for proceeding against them, as per law.
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C O G N I Z A N C E O F O F F E N C E :
21. Pursuant to filing of charge sheet and after perusal of the same in the light of supporting documents, Ld.Predecessor of this court took cognizance of offence and accused persons were accordingly summoned.
22. In compliance to the Provisions of Section 207 Cr.P.C, the accused persons were supplied with the copies of charge sheet and documents relied upon by the prosecution.
C H A R G E :
23. Ld. Predecessor of this Court after hearing Ld.Defence Counsels for all the accused persons passed orders on the point of charge on 26.05.2006 forming an opinion that prima facie case for offences punishable under section 120 B IPC read with section 420/467/468/471 IPC and section 13 C.C.No: 35 / 2011 Page No.13 of 181 Judgement in the matter of:-
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(2) read with section 13 (1) (d) of Prevention of Corruption Act have been culled out against all the accused persons.
24. As per said order Ld. Predecessor of this Court had opined that prima facie case for substantive charges for offences under section 13(2) read with section 13(1)(d) of Prevention of Corruption Act was made out against Girish Chandra Gupta accused no.1, the public servant, substantive charges for offences under section 468 IPC against Sanjay Raina accused no. 2, substantive charge for offence under section 420,471 read with 467,468 IPC against Trilochan Singh Bedi accused no. 3 and substantive charge for offence under section 420 IPC against Rakesh Mudgil accused no. 4, on the basis of material on record.
25. Requisite charge for offence under section 120B IPC read with section 420/467/468/471 IPC and under C.C.No: 35 / 2011 Page No.14 of 181 Judgement in the matter of:-
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section 13(2) read with section 13 (1) (d) of Prevention of Corruption Act, 1988 was framed against all the accused persons on 30.05.2006.
26. Separate charge for substantive offence under section 13(2) read with 13 (1) (d) of PC Act was framed against Girish Chandra Gupta i.e. accused no.1, the public servant.
27. Separate charge for substantive offence under section 468 IPC was framed against Sanjay Raina i.e. accused no.2.
28. Separate charges for substantive offences under section 420 IPC and offence under section 471 read with section 467 & 468 IPC was framed against Trilochan Singh Bedi i.e. accused no.3.
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29. Separate charge for substantive offence under section 420 IPC was framed against Rakesh Mudgil i.e. accused no.4.
30. The requisite charges framed against all the accused persons were read over to them, to which they pleaded not guilty and all of them claimed trial.
P R O S E C U T I O N E V I D E N C E :
31. Prosecution was thereafter called upon to substantiate their case by examining their witnesses, listed in the list of witnesses, filed along with the charge sheet. Availing the given opportunities, CBI had examined 35 witnesses.
32. The witnesses so examined by the prosecution to substantiate its case can be broadly categorized in Six Categories : C.C.No: 35 / 2011 Page No.16 of 181 Judgement in the matter of:-
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33. First Category consists of witnesses from National Insurance Company Ltd. (NIC). All these are material witnesses examined by the prosecution, who have deposed about the initiation of inquiry by the officers of Vigilance Department of NIC, submission of inquiry report. The witnesses of this category have further deposed that on the basis of Vigilance report, complaint was lodged with CBI. These witnesses have further deposed regarding the procedure as per which a marine policy is issued and the mode and manner in which claim, if any lodged, is processed, recommended and approved. This category comprises of :
(i) PW2 Sh.K.Mahapatra, Chief Vigilance Officer, NIC, the complainant ;
(ii) PW3 Sh.A.K.Seth, Dy. Manager, Assistant Admin. Officer, NIC ;
(iii) PW4 Sh.Amrit Lal Gambhir, Assistant Admin. Officer, NIC ;
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(iv) PW5 Sh.V.K.Bajaj, Assistant Admin. Officer, NIC ;
(v) PW6 Sh.A.K.Tiwari, Dy. Manager, AO Vigilance, NIC ;
(vi) PW7 Sh.Madan Lal Meena, Assistant, NIC ;
(vii) PW8 Sh.Dharampal Rana, AO, NIC ;
(viii) PW10 Sh.N.K.Dutta, Regional Manager, NIC ;
(ix) PW11 Smt.Gopa Sahu, Assistant Admin. Officer, NIC ;
(x) PW12 Smt.Pooja Soni, Assistant, NIC ;
(xi) PW13 Sh.R.C.Sood, Assistant, NIC ;
(xii) PW15 Smt.Neelam Kataria, Assistant, NIC ;
(xiii) PW16 Sh.Virender Singh Negi, Assistant, NIC ;
(xiv) PW22 Sh.S.N.Roy, Divisional Manager, NIC ;
(xv) PW23 Sh.D.P.Ghosh, Regional Manager, NIC ;
(xvi) PW27 Sh.D.C.Mandal, Assistant Manager, NIC.
34. The witnesses of the first category have further deposed regarding issuance of cheque to the concerned parties onces the claim is fully approved. The mode and manner of appointment of 'tracer' as well as 'recovery C.C.No: 35 / 2011 Page No.18 of 181 Judgement in the matter of:-
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agents'. The witnesses of this category had further deposed about submission of the records relevant to the present case to the investigating officer during the course of investigations.
35. PW22, PW23 & PW27 who are also included in this category are the witnesses from NIC, Kolkatta office, who have deposed regarding prosecution case with respect to the transactions that had taken place in Kolkatta Office of NIC.
36. Second Category of witnesses examined by the prosecution are also important ones as they are from the banks where National Insurance Company and accused Trilochan Singh Bedi, Proprietor of M/s Amit Industries were having their accounts. This category further includes the witness from M/s Jain Cooperative Bank Ltd. with whom accused Sanjay Raina was having a bank account in the name of M/s Webers India. This category comprises of : C.C.No: 35 / 2011 Page No.19 of 181 Judgement in the matter of:-
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(i) PW14 Sh.R.Vaidhyanathan, Chief Manager, Indian Overseas Bank ;
(ii) PW9 Sh.Naresh Kumar Tyagi, Officer, Oriental Bank of Commerce, Delhi.
(iii) PW18 Sh.Sheetal Prasad Jain, Manager, Oriental Bank of Commerce.
(iv) PW17 Sh.Nishant Aggarwal, LDC, Jain CoOp. Bank Ltd., Delhi.
(v) PW24 Sh.Rishab Jain, Supervisor, Jain CoOp. Bank Ltd., Delhi.
37. These witnesses have proved the bank records being maintained by their respective banks during regular course of its business, so far as relevant for the present case.
38. Third Category of witnesses are the ones who have deposed about the nonexistence of the consignee i.e. M/s C.C.No: 35 / 2011 Page No.20 of 181 Judgement in the matter of:-
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Laxmi Electrical Company and transporter M/s Bullet Road Carrier. This category includes :
(i) PW19 Sh.Dulal Dutta, Proprietor, M/s Lagoni Fast Food Center ;
(ii) PW21 Sh.Sunil Mal Roy, Inspector, Detective Department, Kolkata ;
(iii) PW28 Sh.Tapan Dutta, Photographer, Calcutta ;
(iv) PW29 Sh.Javed Anwar, Owner of Restaurant in Calcutta.
39. Fourth Category of witnesses are miscellaneous witnesses of house search and specimen signatures and those who were joined during investigations by the Investigating Officer including the CBI officers who on directions of IO conducted part investigations. This category includes :
(i) PW25 Sh.Rakesh Sharma, Sr. Manager, Punjab & Sind Bank ;
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(ii) PW26 Sh.D.K.Seth, Manager, MMTC, Delhi ;
(iii)PW32 Sh. S.Balakrishna Shetty, Officer, Vijaya Bank ;
(iv) PW33 Sh. R.C.Madan, Officer, Punjab National Bank ;
(v) PW34 Sh. R.K.Saran, Additional S.P., CBI ;
(vi)PW35 Sh. B.S.Kanojia, Clerk, Syndicate Bank ;
40. Fifth Category of the witness examined by the prosecution was the one who had given Sanction for prosecution qua the accused public servant. This category includes :
(i) PW1 Sh.Sujit Dass, General Manager, NIC, Calcutta:
who had given sanction for prosecution with respect to accused Girish Chandra Gupta ;
41. Sixth Category of witnesses includes those who remained associated with the investigations of the present case in one form or the other, including the Investigating Officer. This category includes the handwriting C.C.No: 35 / 2011 Page No.22 of 181 Judgement in the matter of:-
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expert, who assisted the investigations in this case. This category consists of :
(i) PW20 Sh. Mohinder Singh, Assistant, GEQD, CFSL ;
(ii) PW30 Sh.S.K.Kashyap, Additional S.P., CBI ;
(iii) PW31 Sh.R.P.Kaushal, Additional S.P., CBI.
42. The detail deposition of these witnesses is not being adverted to, as the same shall be referred hereinafter while dealing with the necessary ingredients of the offence, with which accused have been charged, visavis the rival contentions advanced by Ld.Special PP for CBI, as well as by Ld.Defence Counsels for the accused persons.
43. All the prosecution witnesses were cross examined in detail by Sh.C.L.Gupta, Sh. I.S.Kapoor and Sh.R.K.Kohli, Advocates, Ld.Defence Counsels for the accused persons. The cross examination of the witnesses is not C.C.No: 35 / 2011 Page No.23 of 181 Judgement in the matter of:-
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being mentioned for the sake of brevity, but the same and material portion thereof, more particularly, the one referred to during the course of arguments, shall be adverted to hereinafter, while appreciating the legal and factual issues raised on behalf of the accused, alongside appreciation of evidence in entirety.
S T A T E M E N T O F A C C U S E D :
44. Separate statements of all the accused persons were thereafter recorded under section 313 Cr.P.C., wherein the prosecution evidence against them was put, which they denied.
45. On being asked, none of the accused persons except accused no. 1 Girish Chandra Gupta, wished to examine witnesses in their defence. Accused G.C.Gupta was permitted to lead the defence evidence.
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D E F E N C E E V I D E N C E :
46. Availing the given opportunities, accused no.1 Girish Chandra Gupta had examined two witnesses in his defence. Sh.A.K.Goel, posted as Dy. Manager with NIC, Dehradun was examined as DW1 and Sh.Om Prakash, ASI, Malkhana Incharge, EOWI, appeared in the witness box as DW2.
47. As accused no. 2 Sanjay Raina, accused no. 3 Trilochan Singh Bedi and accused no. 4 Rakesh Mudgil despite grant of opportunity, did not wish to examine any witness in their defence. Thus, defence evidence qua them was closed.
48. DW1 Sh.A.K.Goel, posted as Dy. Manager with NIC, Dehradun was examined on behalf of accused no. 1 G.C.Gupta. He appeared in the witness box and submitted C.C.No: 35 / 2011 Page No.25 of 181 Judgement in the matter of:-
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certified copy of circular dated 16.02.1996 with regard to "Performance of Technical Duties" and the same was proved as Ex. DW1/A. He also proved on record order dated 19.08.2013 Ex. DW1/B with respect to G.C.Gupta whereby his suspension order was revoked and he was directed to join DDRO, Dehradun. On being cross examined by Ld.PP for CBI, this witness admitted that circular Ex. DW1/A brought by him was marked to Regional Office, Chandigarh. This witness, during cross examination by Ld. P.P. stated that he does not have any knowledge of the conditions mentioned in order Ex. DW1/B.
49. Sh.Om Prakash, ASI, Malkhana Incharge, EOWI, was also examined on behalf of accused no. 1 G.C.Gupta. This witness appeared in the witness box as DW2 and proved on record receipt Ex. DW2/A whereby documents mentioned therein were returned to G.C.Gupta, which were taken into possession during investigations, copy of said C.C.No: 35 / 2011 Page No.26 of 181 Judgement in the matter of:-
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counter foil bearing signatures of Sh.Mahesh Chand Gupta is Ex. DW2/A1, copy of application filed by CBI before concerned court seeking permission to return the unrelied documents is Ex. DW2/B, memo dated 01.06.2004 issued by the then S.P. Sh. Alok Mittal, directing the Investigating Officer to return the unrelied documents obtaining necessary court permission is Ex. DW2/C, application seeking court permission to return the unrelied documents is Ex. DW2/D and copy of order passed by the concerned court dated 09.06.2004 is Ex. DW2/E. This witness was not at all cross examined on behalf of CBI.
50. I have heard the arguments advanced by Sh.Harish Kumar Gupta, Ld.Special Public Prosecutor for CBI. I also had the privilege to hear arguments from Sh.Ramesh Gupta, Ld.Senior Advocate and Sh.C.L.Gupta, Advocate on behalf of accused no.1 Girish Chandra Gupta, the public servant. Sh. Rakesh Malhotra, Sh. I.S.Kapoor & C.C.No: 35 / 2011 Page No.27 of 181 Judgement in the matter of:-
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Sh. R.K.Kohli, Advocates had advanced arguments on behalf of accused no. 2 Sanjay Raina, accused no. 3 Trilochan Singh Bedi & accused no. 4 Rakesh Mudgil respectively.
A R G U M E N T S O N B E H A L F O F C B I :
51. It is contended by Ld.Special PP for CBI relying upon the deposition of the witnesses examined by them during the course of trial, that prosecution has been able to establish its case against the accused persons.
52. It is submitted by Ld. Public Prosecutor that accused public servant had abused their official position and thus criminally misconducted themselves, so as to cause pecuniary advantage to their coaccused persons and corresponding wrongful loss to National Insurance Company Limited. He further contended that the accused public servant by abusing their official position had entered into a criminal conspiracy with the private persons and facilitated them to C.C.No: 35 / 2011 Page No.28 of 181 Judgement in the matter of:-
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have a Marine Insurance Policy and to clear the claim on the basis of forged documents, knowing or having reasons to believe the same to be forged ones. He contended that the insured had obtained a policy on the basis of a bogus transaction, knowing or having reasons to believe that no such goods which were sought to be insured, were transported. He contended that the consignor as well as transporter were nonexistent. It is submitted by him that the insured as well as other coaccused persons submitted bogus documents in support of the claim and public servant in furtherance of the conspiracy, let the same on record and without verifying the genuineness of the same, passed the claim to cause wrongful gain to the accused private persons, including the surveyor and others and corresponding wrongful loss to NIC. He contended that all the accused persons be accordingly convicted under relevant provisions of law.C.C.No: 35 / 2011 Page No.29 of 181
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Dated : 16.10.2014.
D E F E N C E A R G U M E N T S :
53. To defend the accused persons, Sh.Ramesh Gupta, Ld.Senior Advocate along with Sh.C.L.Gupta, Sh.Rakesh Malhotra, Sh. I.S.Kapoor and Sh.R.K.Kohli, Advocates, Ld.Defence Counsels had led multifaceted attack to the prosecution case. The arguments advanced Ld.Defence Counsels can be broadly categorized in 3 dimensions. The first dimensional attack was on legal issues. Second dimensional attack was based on mixed questions of law and facts. Whereas, the third dimension of their arguments, revolved around the factual aspects as has come up on record, on the basis of oral and documentary evidence, during the course of trial.
54. Ld.Defence Counsels had opened their arguments raising a LEGAL ISSUE stating that prosecution C.C.No: 35 / 2011 Page No.30 of 181 Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
has wrongly invoked Section 13(1) (d) of P.C.Act. It is contended that as there are no allegations of payment of any illegal gratification by the insured, surveyor or other private accused persons to the accused public servant, therefore, the provisions of Section 13(1) (d) of Prevention of Corruption Act, cannot be invoked.
55. Second dimensional attack of Ld.Defence Counsels was on mixed questions of "Law and Facts". The same was with respect to the sanction for prosecution granted against the public servant. The arguments advanced on this aspect were twofold i.e. :
(i) Incompetence of Sanctioning Authority : The authority which had passed the sanction order qua the public servant was not competent to pass the same, therefore, the sanction order is bad in law.
C.C.No: 35 / 2011 Page No.31 of 181
Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(ii) Nonapplication of mind : Even if it is assumed that the sanctioning authority was competent to pass the sanction order, the same was passed in a mechanical manner and without application of mind as the sanctioning authority has failed to pass sanction order against other similarly situated officers who had performed the same functions ie. of processing, recommending or approving the claim, as has been ascribed by the prosecution against accused G.C.Gupta.
56. It is contended that as the sanction order was bad in law, therefore, the whole proceedings have become non est.
57. Third dimensional attack on the prosecution case raised by Ld.Defence Counsels was on factual aspects, vis avis the necessary ingredients of the offences with which accused persons were charged.
C.C.No: 35 / 2011 Page No.32 of 181
Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
58. These contentions raised by Ld.Defence Counsels are as under:
(i) Unfair Investigations : That, the investigations have not been conducted by the investigating agency in a fair manner as "pick and choose policy" was adopted and the officers who had performed similar roles were not made accused and the present accused have been wrongly and falsely implicated, therefore they be acquitted of the charge.
(ii) No meeting of minds : That, there is no evidence brought on record by the prosecution depicting any meeting of mind, amongst the accused public servant on one hand and the private persons ie. insured, surveyor and recovery agents on the other hand, therefore, there is no question of any conspiracy whatsoever between these two set of accused. C.C.No: 35 / 2011 Page No.33 of 181
Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(iii) No overt act on the part of public servant : That, the accused public servant had not done anything, in order to achieve the socalled object of conspiracy as he was not party to any such conspiracy / offence.
(iv) Official discharge of duties: That, the accused public servant did, what was his official duty and had only processed / recommended / passed the claim on the basis of the recommendations / notes prepared by the subordinate staff.
(v) No knowledge about forgery: That, the accused public servant did not have any knowledge that the documents annexed with the claim form by the insured or other accused persons, were forged ones.
(vi) No duty of the public servant for verification of documents: That, even otherwise, it was not the duty of accused public servant to verify the genuineness of the C.C.No: 35 / 2011 Page No.34 of 181 Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
documents. Further, they had no reason to doubt the genuineness of the documents so annexed with the claim form.
59. Apart from the above contentions which were commonly advanced on behalf of all the accused persons, Sh.Rakesh Malhotra, Sh. I.S.Kapoor and Sh.R.K.Kohli, Advocates, Ld.Defence Counsels for accused no.2 Sanjay Raina, Accused no.3 Trilochan Singh Bedi and accused no.4 Rakesh Mudgil, supplemented the contentions against the prosecution case. The same are as under:
(i) No link between accused Sanjay Raina and the other accused persons : Sh. Rakesh Malhotra, Advocate, contended that although prosecution had tried to link accused Sanjay Raina stating that the recovery amount came from his bank account but the evidence on record falls short of proving the same. He contended that the witnesses examined by the C.C.No: 35 / 2011 Page No.35 of 181 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
prosecution i.e. PW17 Sh. Nishant Aggarwal & PW24 Sh.
Rishab Jain failed to provide any link between accused Sanjay Raina and the recovery amount.
(ii) Unfair investigations : Sh.I.S.Kapoor, Advocate had contended that accused Trilochan Singh Bedi had nothing to do with M/s Amit Industries. He contended that the accused had not opened any bank account in the name of M/s Amit Industries. He contended that the witnesses examined by the prosecution in this regard i.e. PW9 Sh.Naresh Kumar Tyagi & PW18 Sheetal Prasad Jain are not reliable witnesses to prove that it was accused Trilochan Singh Bedi, who had opened this account.
(iii) Specimen signatures & the Expert Report thereon cannot be relied upon: Sh.I.S.Kapoor, Advocate, relying upon the judgement titled ""Sapan Haldar & Anr. vs. State" decided by Hon'ble High Court of Delhi in Crl.Appeal C.C.No: 35 / 2011 Page No.36 of 181 Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
No.804/01 decided on 25.05.2002, had contended that the investigating officer had taken the specimen signatures in violation of law and the precedents laid down by Hon'ble High Court, therefore the same cannot be relied upon, for any purpose whatsoever. He contended that the report obtained by the prosecution from the expert i.e. PW20 Mahender Singh is of no consequence to the case of prosecution.
(iv) No pecuniary advantage : Ld.Defence Counsels had further contended that no pecuniary advantage or wrongful gain was caused to accused Sanjay Raina, Trilochan Singh Bedi & Rakesh Mudgil.
(v) Recovery amount can come from the recovery agents: It is contended by Sh.R.K.Kohli, Advocate, Ld.Defence Counsel for accused Rakesh Mudgil that as per the regular practice and procedure, the recovery agent negotiate with the transporter with respect to more than 1 case of a C.C.No: 35 / 2011 Page No.37 of 181 Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
particular insurance company and at times, with respect to cases of more than 1 insurance company, with which he is on the panel. He contended that the recovery agent used to get a consolidated amount from the transporter and subsequently can deposit the proportionate recovery amount so collected with the insurance company from his own account. He contended that this being the regular practice / procedure, therefore no offence whatsoever is stated to have been committed by his client.
(vi) Recovery from the transporter cannot be part of the conspiracy: It is contended by Sh.R.K.Kohli, Advocate, Ld.Defence Counsel for accused Rakesh Mudgil that the object of conspiracy, if any, stands achieved the moment, claim is passed and the claim amount is released. He contended that the same concludes and culminates the conspiracy if any. Ld. Defence Counsel submitted that appointment of recovery agent for recovery from the transporter is a subsequent event and the C.C.No: 35 / 2011 Page No.38 of 181 Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
same cannot be brought under the umbrella of the alleged conspiracy. He contended that no role whatsoever can be ascribed to accused Rakesh Mudgil to have been done in furtherance of the conspiracy.
60. To augment the oral submissions made on behalf of accused Trilochan Singh Bedi, Sh. I.S.Kapoor, Advocate had filed written submissions as well. A P P R E C I A T I O N O F E V I D E N C E A N D R I V A L C O N T E N T I O N S :
61. Before adverting to appreciate the prosecution as well as defence evidence which has come up on record visa vis the charges against the accused persons, as well as the arguments advanced on the mixed questions of facts and law, I deem it appropriate to deal with that contention first which have been raised by Ld.Defence Counsels, on purely legal C.C.No: 35 / 2011 Page No.39 of 181 Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
aspects, in their quest to demolish the prosecution case at its threshold.
62. The opening contention of Ld.Defence Counsels was that, there is no averment or allegation in the entire charge sheet of extension of any illegal gratification on the part of insured or other private accused persons, to the accused public servant, therefore by no stretch of imagination, the provisions of Section 13(1) (d) of Prevention of Corruption Act, could have been invoked. It is contended that on this ground itself, the case cannot proceed and accused persons should be acquitted.
63. In order to deal with this contention of Ld.Defence Counsels, it is pertinent to make a mention of the relevant provisions of Section 13 (1) (d) of Prevention of Corruption Act. The same is as follows : C.C.No: 35 / 2011 Page No.40 of 181 Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Section 13: Criminal misconduct by a public servant : (1) A public servant is said to commit the offence of criminal misconduct,
(a) . . .
(b) . . .
(c) . . .
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or
(ii)by abusing his positioning as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or
(iii)while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest ; or
(e) . . .
64. The phrases namely "corrupt, illegal means" and "by abusing his position as public servant"
are different categories of corrupt practices, which are conjuncted by the words "or" and not by the conjunction "and".C.C.No: 35 / 2011 Page No.41 of 181
Judgement in the matter of:-
CC No.: 35 / 11.
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Dated : 16.10.2014.
This in itself indicates that these three different categories are alternate misconduct on the part of public servant and either of these three practices, if done by public servant then the same can constitute an offence under this Section.
65. The phraseology "By abusing his official position as Public Servant" covers the acts done by the public servant otherwise than by corrupt or illegal means. The gist of the offence under this clause is, that a public officer abusing his position as "public servant" obtains for himself or for other person, any valuable thing. The word "abuse" used by the Legislature means "misuse", ie. using his position for something which is not intended. That abuse of the position may be by corrupt or illegal means or otherwise than those means". In view thereof, the Legislature never intended that there has to be an express evidence of illegal gratification before invocation of this section. In case, there are instances and allegations that a person has abused his position as a C.C.No: 35 / 2011 Page No.42 of 181 Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
public servant, in order to cause advantage to anyone, that in itself is sufficient for invocation of this Section.
66. Meaning thereby that in absence of any allegations by the prosecution on the part of public servant of demand and acceptance of illegal gratification for showing any favor to a private individual, the provisions of Prevention of Corruption Act cannot be invoked, as urged by Ld.Defence Counsels, to my mind is farfetched and devoid of merits. As there are allegation of abuse of official position by the public servant in order to cause pecuniary advantage to their co accused, this clause of P.C.Act very much comes into play.
67. In view thereof, the contention advanced by Ld.Defence Counsels that in the present case there are no allegations on record that any of the public servant, who are accused herein had adopted any corrupt or illegal means or have obtained any pecuniary advantage for themselves, thus C.C.No: 35 / 2011 Page No.43 of 181 Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
section 13(1) (d) of P.C.Act cannot be invoked, is rejected.
However, the prosecution has to establish the necessary ingredients of the offences, with which the accused persons have been charged, on the basis of the evidence which has come up on record, with which I shall be dealing hereinafter.
68. Having dealt with the contentions urged by Ld.Defence Counsels on behalf of the accused persons on purely legal grounds,I shall now delve upon to consider the arguments raised involving mixed question of "Law and Facts".
69. Leading a double pronged attack on the prosecution case, Sh.Ramesh Gupta, Ld.Senior Advocate along with Sh.C.L.Gupta, Advocates, Ld.Defence Counsels appearing on behalf of the public servant, contended that the provisions of Section 19 of Prevention of Corruption Act is a mandatory provision and the Court does not have the jurisdiction to take cognizance when the "sanction" under this C.C.No: 35 / 2011 Page No.44 of 181 Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
provision is granted in mechanical manner and without application of mind and that too, by an authority which was not competent to grant the same.
70. Ld.Defence Counsels contended that the sanction order passed by PW1 Sujit Dass against accused G.C.Gupta ie. Ex.PW.1/A is bad in law on 2 grounds. It is contended that PW1 was not the competent authority to pass the sanction order and secondly, the same is invalid and bad in law, as it was passed in a mechanical manner and without application of mind. It is contended that the sanctioning authority has failed to take into consideration the fact that other officers who have issued the policy or recommended / approved the claim, were not proceeded against and no sanction for prosecution, was granted against him.
71. I have considered the submissions advanced on this aspect and have considered the relevant provisions of law C.C.No: 35 / 2011 Page No.45 of 181 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
in the light of the precedents relied upon by Ld.Defence Counsels to substantiate their contentions.
72. For administration of Criminal Justice System, an onerous duty is cast on the Courts, to effectively tackle and control the endemic of offences, so as to prevent the society from drifting towards savage society. A balanced approach is required to be adopted by the courts giving strict interpretation to the Clauses of the Penal Provisions and simultaneously being mindful of the inviolable Constitutional Rights granted to the accused, so as to ensure fair trial.
73. Subjecting any individual to undergo "criminal trial" is an encroachment / restriction on his fundamental right to "life and liberty". As per the constitutional mandate enshrined in Article 21 of Constitution of India, granted to each and every citizen of the country, no one can be deprived of his right to life and liberty, except by the due "process of C.C.No: 35 / 2011 Page No.46 of 181 Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
law". Thus, if anyone accused of any offence, is to be subjected to criminal trial, then the same has to be in conformity to the procedures established by law. As whenever a particular procedure is prescribed by law, then all other procedures to do the same are proscribed.
74. Public servant in whatever capacities they are holding their offices, are supposed to give effect to the objects for which their organization is functioning, so that the benefits arising out of their actions, should benefit their country in general and their organization in particular. To achieve the object, for which the policies and plans of the organization are put in place, all the public servant are expected to discharge their functions with utmost propriety and all fairness. Experience however has revealed that many public servant, instead of using their good offices for the public good, misuse the same for their personal benefits by indulging into corrupt and improper practices.
C.C.No: 35 / 2011 Page No.47 of 181
Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
75. Legislature in its wisdom in order to curb such corrupt and improper practices had brought "Prevention of Corruption Act, 1988" on the Statute Book for not only, punishing those who had violated the very oath of honesty and sincerity with which they had assumed their office and indulged in 'corrupt practices', but also to deter the others from treading the path of dishonesty.
76. Being aware of the fact that some of the honest public servant may be dragged into vexatious and uncalled for prosecution, the Legislature had in Section19 of Prevention of Corruption Act, incorporated a "saviour clause" so as to protect them and to encourage them to continue with the good work. But for this clause, the government process would become 'static' as public servant would hesitate to take even the most honest, bonafide and genuine decisions fearing harassment from frivolous and uncalled for allegations. C.C.No: 35 / 2011 Page No.48 of 181
Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
77. To balance these two conflicting interests, one of which is to give effect to the very object for which Prevention of Corruption Act was brought on the Statute Book to deal with the guilty sternly and on the other hand, to give effect to the shield provided by the Legislature to protect honest and diligent public servant from vexatious and uncalled for prosecution, the onerous duty has been placed on the Courts, which are an important cog in the wheels of Administration of Justice. The courts are obligated to strike balance between these two conflicting interests in such a manner, so that majesty of "Rule of Law" is neither undermined nor defeated.
78. Before proceeding to advert upon the submissions advanced, it is pertinent to make mention of Section 19 of Prevention of Corruption Act, which is reproduced as under: C.C.No: 35 / 2011 Page No.49 of 181 Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
SECTION 19 : PREVIOUS SANCTION NECESSARY FOR PROSECUTION :
(1) No Court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government ;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government ;
(c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under subsection (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) : C.C.No: 35 / 2011 Page No.50 of 181
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(a) No finding, sentence or order passed by a Special judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under subsection (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby ;
(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in failure of justice;
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under subsection (3) whether the absence thereof, or any error, omission or irregularity in, such sanction has occasioned or resulted in failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation - For the purposes of this Section,
(a) error includes competency of the authority to grant sanction ;
C.C.No: 35 / 2011 Page No.51 of 181
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(b) a sanction required for prosecution includes reference to any requirement that the prosecut ion shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
79. The object and character of this provision is evidently emanating from the words used in the Section by the Legislature : "No Court shall take cognizance of such offence, except with the previous sanction". Use of words "No" and "shall" makes it abundantly clear that the bar on the exercise of power of the Court to take cognizance of an offence is absolute and complete. As per Black's Law Dictionary, the word "cognizance" means jurisdiction or the exercise of jurisdiction. In common parlance, it means "taking notice of". In view thereof, in absence of the sanction, the court is precluded from even taking notice of the offence or exercising its jurisdiction, in respect of a public servant. C.C.No: 35 / 2011 Page No.52 of 181
Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
80. Thus, the provision has been imparted a mandatory character and has been held so by various authoritative pronouncements by Hon'ble Apex Court. While holding grant of sanction to be a prerequisite or sinequanon for taking cognizance, regard is to be had to the fact that it can be a shield to discourage vexatious prosecution of innocent public servant, but it should not be permitted to be used as a weapon against the prosecution by the guilty.
81. The protection given by the Legislature is to be extended to the extent provided therein and it cannot and should not be stretched elastically to cover those, who are not intended by the Legislature to be under the protective umbrella. As to my mind the Legislature by enacting any provision in the Act, which prohibits the taking of cognizance of offence by a Court, unless certain conditions are complied with, did not purport to condone the offence. Thus, such provision is C.C.No: 35 / 2011 Page No.53 of 181 Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
to be construed on the basis of words used therein, without importing the words, which are not there.
82. In the backdrop of above, I shall consider the arguments advanced by Ld.Defence Counsels raised by them to challenge the authenticity of the sanction order Ex.PW.1/A passed qua G.C.Gupta by PW1 Sh.Sujit Dass, the then General Manager, NIC.
83. Firstly, I shall consider the arguments advanced on the aspect of "competence of the sanctioning authority" to pass the sanction order.
84. Though, Ld.Defence Counsels during the course of arguments had contended that PW1 was not the competent authority to pass sanction order against G.C.Gupta, who at relevant point of time was posted as Assistant Manager NIC. However, nothing has been brought on record either C.C.No: 35 / 2011 Page No.54 of 181 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
during the cross examination of PW1 or during the course of arguments on behalf of the accused, to challenge the competence of PW1, the then General Manager NIC, with respect to passing of the sanction order.
85. In terms of Section 19 (1) (c) of the Act, the sanction for prosecution has to be granted by an authority, which is competent to remove the said person from his office.
86. The question of competence of the "appointing / sanctioning authority" came up for consideration before Hon'ble Supreme Court in case titled "Mohd.Iqbal Ahmed Vs. State of Andhra Pradesh", reported as AIR 1979 SC 677, wherein it was held that :
"... The authority which would be competent to grant sanction is the authority which is entitled to remove from service the public servant against whom sanction is sought".C.C.No: 35 / 2011 Page No.55 of 181
Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
87. Admittedly, in the present case, PW1 Sujit Kumar Dass, was posted as General Manager NIC at the relevant point of time. Being General Manager, it was PW1 who was the authority capable of removing the officers of the rank of Assistant Manager from the services. Nothing has been put to this witness during his cross examination on behalf of accused G.C.Gupta to suggest that General Manager was not the competent authority to remove an officer of the rank of Assistant Manager from his office.
88. Thus PW1 being General Manager was the competent authority to remove an officer of the rank of Assistant Manager, and thus had the requisite competence to pass the sanction order qua accused no.1, which he did.
89. In view thereof, I do not find any grounds in this contention of Ld. Defence Counsels that PW1 was not C.C.No: 35 / 2011 Page No.56 of 181 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
having competence to pass the sanction order Ex.PW.1/A.
90. This has brought me down to the second limb of the contentions raised by Ld.Defence Counsels stating that sanction order was passed by PW1 without application of mind. It is contended by Ld.Defence Counsels relying upon the cross examination of PW1 that he had failed to look into the relevant documents and had merely passed the sanction order at instance of CBI without taking into consideration that no sanction for prosecution is passed by him against the other officers, who had performed similar roles. It is further contended that sanctioning authority had passed the sanction order without referring the matter to Chief Vigilance Officer and without getting the opinion of CVC on the same.
91. I have considered the submissions advanced and have perused the sanction order as well as deposition of PW1 Sh.Sujit Kumar Dass.
C.C.No: 35 / 2011 Page No.57 of 181
Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
92. It has been held by Hon'ble Apex Court time and again that the Court where the question of validity of sanction on the grounds of 'non application of mind' is raised, has to see as to whether the sanctioning authority did consider all the evidence collected by the investigating agency ie. oral as well as documentary.
93. Hon'ble Apex Court in a recent case titled "State of Maharashtra Vs. Mahesh G.Jain" reported as Criminal Appeal no.2345 of 2009 decided on 28.05.2013 had aptly summed up the principles and guidelines which are required to be followed to decide the question which inundates the Trial Court, challenging the sanction order.
94. Hon'ble Apex Court in this judgement had considered all the previous laws laid down by it, including the cases referred to and relied upon by Ld.Defence Counsel mentioned hereinabove.
C.C.No: 35 / 2011 Page No.58 of 181
Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
95. Hon'ble Apex Court after appreciating the earlier precedents on the subject, had culled out the guiding principles in Para 13 of its Judgement, which are reproduced as under :
(a) It is incumbent on the prosecution to prove that valid sanction has been granted by Sanctioning Authority after being satisfied that a case for sanction has been made out.
(b) The Sanction Order may expressly show that the sanctioning authority has perused the material placed before him and after consideration of the circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing the evidence that the material was placed before the Sanctioning Authority and his satisfaction was arrived at, upon perusal of the material placed before him.
C.C.No: 35 / 2011 Page No.59 of 181
Judgement in the matter of:-
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Dated : 16.10.2014.
(d) Grant of Sanction is only an
administrative function and the
sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the Sanctioning Authority cannot be gone into, by the Court, as it does not sit in Appeal over the Sanction order.
(f) If the sanctioning authority has perused all the material placed before him and some of them have not been proved, that would not vitiate the order of sanction.
(g) The order of sanction is a pre requisite, as it is intended to provide a safeguard to the public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity.
..... (emphasis supplied).C.C.No: 35 / 2011 Page No.60 of 181
Judgement in the matter of:-
CC No.: 35 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
96. In view of these guiding principles, more particularly the principle mentioned at Point (d) (e) (f) and
(g) above, the adequacy of the material placed before the Sanctioning authority is not required to be gone into, as this Court is not sitting in appeal over the sanction order.
97. The discretion whether to grant or not to grant the sanction order lies with the sanctioning authority and it is the subjective opinion of the said administrative authority, which it has to arrive, on the basis of material placed before it.
98. The sanctioning authority was under an obligation to see the material placed before it by CBI, collected during the course of investigations and to arrive at a conclusion as to whether the same is sufficient and requires grant of sanction for prosecution of accused persons or not.
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Judgement in the matter of:-
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99. In view thereof, it is to be seen as to whether the complete record of the investigations, including oral and documentary evidence collected was or was not placed before the sanctioning authority.
100. It is apparent on perusal of cross examination of PW1 conducted on behalf of accused G.C.Gupta that he had perused the report of CBI forwarded by S.P., which contained calendar of events, gist of allegations as well as opinion of CBI, before passing the sanction order. The factum of placing the complete record after conclusion of the investigations before the competent authority, has also been deposed so, by the investigating officer ie. PW31 R.P.Kaushal. No suggestion, whatsoever was given either to PW1 or to PW31 on behalf of the accused persons, that the same was either not produced before PW1 or he had not applied his mind on the same. PW1 during the course of his cross examination, did state that he C.C.No: 35 / 2011 Page No.62 of 181 Judgement in the matter of:-
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after perusing the material collected by the investigating agency had passed the sanction order.
101. The other contention of Ld.Defence Counsels that the sanctioning authority had passed the sanction order without referring the matter to CVC, as per notification no. 98 / VGL/62 dated 15.10.2003, to my mind is also devoid of any merits on 2 counts. Firstly, the sanction order Ex.PW.1/A was passed by the sanctioning authority on 17.06.2003 ie. much before the date of notification, relied upon by Ld.Defence Counsels. Secondly, because Section 19 of the Act, as interpreted by Hon'ble Apex Court makes it obligatory on the part of sanctioning authority to grant or not to grant the same on the basis of its own subjective satisfaction & without any influence from any other authority.
102. In view thereof, there was no requirement of referring the matter to CVC by the sanctioning authority, for C.C.No: 35 / 2011 Page No.63 of 181 Judgement in the matter of:-
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getting its opinion before passing the sanction order, as has been urged by Ld.Defence Counsels.
103. Another facet to this argument advanced by Ld.Defence Counsels was that the sanction order is bad as no sanction for prosecution was passed by PW1 against other similarly situated officers. This contention of Ld.Defence Counsels does not hold waters as the sanctioning authority before whom the material is placed by CBI after investigations, is required to form an opinion qua those persons only for whom sanction is sought as to whether the same is to be granted or not. This is beyond the scope of purview and jurisdiction of sanctioning authority to pass sanction for prosecution against other officers qua whom neither any investigations were done, nor any evidence was collected nor the sanction was sought.
104. Even otherwise, the Legislature in order to stop unjustified claims raised on behalf of public servant to C.C.No: 35 / 2011 Page No.64 of 181 Judgement in the matter of:-
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Dated : 16.10.2014.
derive undue advantage of requirement of sanction have incorporated Section 19(3) of Prevention of Corruption Act which if read with section 465 of Cr.P.C, makes it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent Court, unless in the opinion of the Court, a failure of justice has been occasioned.
105. Hon'ble Apex Court in a recent case titled "State of Bihar & Ors. vs. Rajmangal Ram" in Criminal Appeal No.708 of 2014, arising out of SLP (Crl.) No.8013 of 2012, decided on 31.03.2014 ; has held that the Sanction Order cannot be held to be invalid and proceedings cannot be interdicted without giving any finding to the effect that a failure of justice as a result thereof, has occasioned.
106. Merely because any error or irregularity has occurred in the sanction order, the same is not to be considered C.C.No: 35 / 2011 Page No.65 of 181 Judgement in the matter of:-
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fatal, unless it results in failure of justice.
107. In the present case, as we are at the fagend of the trial and accused public servant have already undergone the trial, further I have not found any error or omission in the sanction order passed qua him by the sanctioning authorities resulting in any failure of justice.
108. Thus, I do not find any merits in the contentions advanced by Ld.Defence Counsels to challenge the authenticity of the sanction order ie. Ex.PW.1/A, which to my mind have been passed by the sanctioning authority with due & proper application of mind.
109. Having held that the sanction for prosecution granted against the public servant was valid, I shall now delve upon the contentions of Ld.Defence Counsels on factual aspects, visavis the necessary ingredients of the offences, with C.C.No: 35 / 2011 Page No.66 of 181 Judgement in the matter of:-
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which the accused persons were charged.
110. To better appreciate the deposition of prosecution witnesses in the light of contentions advanced, it is pertinent to chalk out the procedure for processing of "Marine Claims". The same as emanating out of material on record, in the form of documentary and oral evidence as per the deposition of PW10 N.K.Dutta, PW11 Gopa Sahu, PW3 A.K.Seth, PW4 A.L.Gambhir, PW6 A.K.Tiwari and PW7 Madan Lal Meena, which has not been disputed, even by the accused persons, is as under: Procedure for processing Marine Claims:
(a)Whenever any commercial transaction takes place between two parties located at different places for purchase of goods, the same are required to be transported by the seller to purchaser.
(b) These goods during the course of transportation, can be insured, for which Marine Open Policy is issued against premium.C.C.No: 35 / 2011 Page No.67 of 181
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(c) The seller is known as "consignor" whereas, its recipient or purchaser is known as "consignee".
(d) Either of the two, can pay the premium for taking the "Marine Insurance Policy" and the said party is known as "insured" whereas, the company is known as "insurer".
(e) At the time of taking the policy, the insured submits the proposal along with requisite documents on which insurer, calculates the premium and after collection of the premium, a Cover Note is issued.
(f) Thereafter, the insurer issues the "Insurance Policy".
(g) If, during subsistence of policy, goods are either stolen or damaged during transit, a claim is lodged either to the "Policy Issuing Office" or to any nearest office on which a "surveyor" from the approved list of that branch, is appointed by the Branch Manager, to assess the loss.
(h) The surveyor so appointed, then submits a report along with the photographs and relevant documents.
(i) Concerned Clerk posted with NIC, then processes the claim and submits it to its higher authority, who recommends the claim and puts the same up for approval of the competent authority.
(j) After approval of the competent authority, cheque is prepared by the accounts department, which is signed by 2 authorized signatories, whereafter it is handed over to the "insured / claimant".C.C.No: 35 / 2011 Page No.68 of 181
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(j) The Surveyor's Fee is also paid at the same time while settling the claim, as at times, surveyor receives his fee from the insured or the party, who had lodged the intimation of loss.
(k) If the right of recovery from the carrier / transporter is protected, the Branch Manager, after settling the claim can appoint a recovery agent, who then recovers whatever recovery, which can be affected from the transporter and deposits it with the insurance company, after getting approval of the same from the insurance company.
111. In view of abovementioned duties and obligations which this public servant, being responsible officer of National Insurance Company, was required to fulfill, it is to be seen whether he had performed his duties, as was expected from him or whether the actions and omissions of his were laden with any dishonest intention, in order to cause any pecuniary advantage to their coaccused persons for which regard is to be had to the evidence that has come up on record.
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112. Prosecution evidence which has come up on record, visavis each of the accused facing trial is required to be considered. Conspiracy is the most pivotal part of the prosecution case, which is the primary charge against the accused persons, being axis around which revolves the other charges. As per the case of prosecution, the officer of NIC being public servant, had entered into a criminal conspiracy with the private persons, object of which was to cheat NIC.
113. It is contended by Ld. Prosecutor that G.C.Gupta, the public servant knowing or having reasons to believe that the documents submitted for issuance of policy as well as those submitted in support of the claim to be forged ones, have facilitated the submission of same by or on behalf of the insured, to him on the basis of which the claim was passed, which led to release of payment by NIC to the private persons and thus he has caused pecuniary advantage to them and corresponding wrongful loss to NIC.
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114. Ld.Public Prosecutor made an endeavour to invoke Section 10 of Indian Evidence Act. He, in order to buttress his arguments, contended that all the conspirators should be made constructively liable for the substantive offences committed, pursuant to the conspiracy on the basis of the "Principle of Agency". He contended that the public servant had entered into a conspiracy with the private persons, therefore the acts done by the private persons, pursuant to the conspiracy, in contemplation of law, should be treated as committed by each one of them, therefore all of them should be held responsible and liable for the same.
115. I have considered the submissions advanced by Ld.Public Prosecutor. In order to appreciate the same, it is pertinent to make mention of Section 10 of Indian Evidence Act, which reads as under : C.C.No: 35 / 2011 Page No.71 of 181 Judgement in the matter of:-
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SECTION 10 THINGS SAID OR DONE BY CONSPIRATOR IN REFERENCE TO COMMON DESIGN - Where there is reasonable ground to 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 them, is a relevant fact as against each of the persons believed to so conspiring, as well 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.
116. Bare perusal of this Section makes it evident that there is no such deeming provision in it, as has been contended by Ld.Prosecutor. No doubt, Section 10 rests on the 'Principle of Agency', but it lays down only a rule of relevancy. As per the provisions of this Section, anything done or said by one of the conspirators in reference to the common intention becomes "relevant fact" as against each of the conspirators, to prove two things : C.C.No: 35 / 2011 Page No.72 of 181 Judgement in the matter of:-
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(i) Existence of the conspiracy ; and
(ii) That, they were party to this conspiracy.
117. This has been held so by Privy Counsel in case titled "Mirza Akbar vs. King Emperor" reported as AIR 1940 PC 176. This interpretation has been followed by Hon'ble Apex Court in catena of decisions.
118. Hon'ble Mr.Justice Jagannath Shetty had analyzed this Section in case titled "Kehar Singh & Ors. v/s State (Delhi Administration)" reported as 1988 (3) SCC 609, as under : "From an analysis of the section, it will be seen that Section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his co conspirator. One such prima facie evidence C.C.No: 35 / 2011 Page No.73 of 181 Judgement in the matter of:-
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exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it."
119. In view thereof, distinction was made between the conspiracy and the offence (s) committed, pursuant to the conspiracy. It is only in order to prove the existence of conspiracy and parties to the conspiracy, that this rule of evidence, can be put in service.
"Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy."
120. In view thereof, I do not find any merits in the contentions advanced by Ld.Public Prosecutor as the "Theory of Agency" cannot be extended thus far, that is to say, to hold C.C.No: 35 / 2011 Page No.74 of 181 Judgement in the matter of:-
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all the conspirators guilty of actual offence(s) committed in execution of common design, if such offence(s) were committed by one of them, without participation of others.
121. Whether or not, conspirators will be liable for substantive offence other than the conspiracy and if so, to what extent, has to be proved on record by the prosecution on the basis of evidence which, I shall be adverting to hereinafter.
122. However, before going that far, I would hasten to add that prosecution has first to establish that all the accused persons facing trial, were in fact party to the alleged conspiracy with which they have been charged.
123. In an attempt to demolish the prosecution case, Sh.Ramesh Gupta, Ld.Senior Advocate along with Sh.C.L.Gupta, Sh.R.K.Kohli and Sh.Rakesh Malhotra, Advocates vociferously contended during the course of C.C.No: 35 / 2011 Page No.75 of 181 Judgement in the matter of:-
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arguments, that there is nothing on record brought by the prosecution during the course of evidence, from which it can be inferred that there was any meeting of mind between the public servant and the other accused persons. It is further submitted by Ld.Defence Counsels of all the accused persons, that the conspiracy can only be established on the basis of circumstantial evidence. Further, the circumstances proved, should be such that they must form a chain of events, leading to an irrepressible conclusion about guilt of the accused.
124. In support of their contentions, Ld.Defence Counsels had relied upon the law laid down in cases titled as under : (i )"Kehar Singh & Ors. vs. State" (supra) ;
(ii) "K.R.Purushotnaman vs. State of Kerala"
reported as 2005 (3) JCC (SC) 1847 ;C.C.No: 35 / 2011 Page No.76 of 181
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(iii) "Baldev Singh vs. State of Punjab";
reported as 2009 (3) SCC (CRI.) 66.
(iv) "John Pandian vs. State"
reported as 2011 (1) Crimes SC 1.
125. I have considered the submissions advanced and have perused the law laid down by Hon'ble Apex Court in the precedents relied upon by Ld.Defence Counsels. There is no denying the fact that Hon'ble Apex Court while holding that the offence of conspiracy is committed in secrecy and can be proved only by circumstantial evidence has held that these circumstances should be proved, beyond reasonable doubt, leading to the guilt of the accused.
126. Section 120A IPC defines "criminal conspiracy". Accordingly to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal, by illegal means such an agreement is designated as "criminal conspiracy". C.C.No: 35 / 2011 Page No.77 of 181
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127. In view of this definition, the gist of the offence is "an agreement to break the law". Parties to such an agreement are guilty of criminal conspiracy, though the illegal act agreed upon by them to be done, has not or could not be done. It is not necessary that all the parties to such an agreement should agree to do a single illegal act. It may comprise of commission of a number of acts. It is not necessary that all the conspirators must know each and every detail of the conspiracy.
128. Conspiracy is seldom an open affair. Its existence and objects can only be deduced from circumstances of the case and conduct of the accused, who are party to such conspiracy.
129. As Conspiracy has to be and can only be inferred from the physical manifestation of conduct of the conspirators / accused. Thus, to deduce actual meeting of minds C.C.No: 35 / 2011 Page No.78 of 181 Judgement in the matter of:-
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amongst the accused person to find out transmission of thoughts, the actual words used by them during communication, are to be considered.
130. The conduct of the conspirators / accused are to be deciphered not only from the actual words spoken by them but also from their body language, mannerism and behaviour by which they intervene in the conversation taking place between the complainant and coaccused, as their state of mind has to be inferred on the basis of their conduct.
131. Hon'ble Apex Court in case titled "V.C.Shukla vs. State" reported as 1980 (2) SCC ; had held that in most cases it will be difficult to get direct evidence of the crime, but conspiracy can be inferred even from circumstances giving rise to a conclusive or irrepressible inference of an agreement between two or more persons, committing an offence.
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132. Hon'ble Apex Court in case titled "Noor Mohd. Yusuf Momin vs. State of Maharashtra" reported as AIR 1971 SC 885, has held : "...in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."
133. Hon'ble Apex Court in another case titled "John Pandian vs. State" reported as 2011 (1) Crimes SC 1, has further held : "...that there must be a meeting of minds resulting the ultimate decision, taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred even from the circumstances giving rise to a conclusive or irresistible inference of crime between the two or more persons to commit an offence. It was further held that a few bits here and a few bit there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy ."
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134. For the purposes of considering the conduct of the accused persons so as to deduce about his complicity with the conspiracy, a "rule of caution" has been laid down by Privy Counsel in case reported as AIR 1954 PC 140 that : "In a joint trial care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against others".
135. In case titled "Alvin Krumlewitch v. United States of America" reported as (93 L.Ed. 790) ; it has been held by Justice Jackson that : "codefendant in a conspiracy trial occupies an uneasy seat" and "it is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together."
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136. These words of caution were reiterated by Hon'ble Apex Court speaking through Hon'ble Mr.Justice D.P.Wadhwa in case titled "State vs. Nalini" reported as 1999 (5) SCC 253 ; that : "There is a need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that "there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy".
"It has been further held that criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy".
137. Hon'ble Apex Court in case titled "Esher Singh Vs. State of A.P." reported as 2004 (11) SCC 585 has held as under: C.C.No: 35 / 2011 Page No.82 of 181 Judgement in the matter of:-
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"A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused".
138. Being aware of the fact that for the purposes of appreciating the evidence on record with respect to the allegations of conspiracy, the circumstances in which the accused acted, their actions and mannerism are required to be considered, which I shall look into, mindful of the words of caution laid down by Hon'ble Apex Court in above referred precedents.
139. In the present case, an open Marine Transit Policy Ex.PW.11/A was issued by DOXXIII in favor of M/s Amit Industries to cover consignment of Electrical Goods. The claim was lodged by the claimant / insured on the basis of C.C.No: 35 / 2011 Page No.83 of 181 Judgement in the matter of:-
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alleged loss / damage to the consignment purportedly sent by insured / consignor to M/s Laxmi Electrical Company 3/11, B.T.Road, Calcutta, the consignee, through G.R.No.9009 dated 15.04.1998 of M/s Bullet Road Carriers. Intimation of loss / damage to consignment was purportedly given by the consignee to Calcutta Office of NIC. Thereafter DOXXIII, New Delhi was intimated where claim was processed and approved by accused G.C.Gupta.
140. In order to ascertain the authenticity and genuineness of transaction, the essential requisites are the existence of alleged consignee, the consignor and the transporter through whom the consignment was sought to be transported.
141. In case, any of these links is missing or is not in existence, then as a necessary corollary it would follow that the whole transaction was false / fake and the claim C.C.No: 35 / 2011 Page No.84 of 181 Judgement in the matter of:-
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amount has been wrongly and fraudulently obtained from the Insurance Company by cheating it and thus causing wrongful loss to it.
142. In order to ascertain above, the most important file is the claim file prepared and maintained by DO XXIII of NIC. The said claim file consisting of 26 pages is proved on record by PW3 Sh.A.K.Seth, Vigilance Officer of the Insurance Company. This file as per PW3 was taken in possession by Vigilance Department of the Insurance Company from DOXXIII in 1999. The same was handed over to IO PW30 S.K.Kashyap by PW5 V.K.Bajaj vide seizure memo Ex. PW5/A.
143. It is contended by Ld. Public Prosecutor that as the complete documents required for processing and settlement of claim are not available in the claim file Ex. PW3/2, therefore, that in itself is sufficient to prove that claim C.C.No: 35 / 2011 Page No.85 of 181 Judgement in the matter of:-
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has been fraudulently given to the insured by accused public servant. This contention of Ld. Public Prosecutor is controverted by Ld. Defence Counsels on the ground that as complete chain of handing over of the file and its preservance in safe custody has not been proved, therefore, nonavailability of the documents in claim file cannot be imputed on the public servant. Ld. Defence Counsels placed reliance on the precedent titled "Anil Maheshwari & Others Versus CBI" reported as 2013 (136) DRJ 249.
144. I have considered the rival contentions and have perused the precedent relied upon in the light of evidence on record.
145. PW3 A.K.Seth during his cross examination did state that the claim files including Ex. PW3/2 were seized by his team and they had not carried out any other proceedings at the office of accused except seizing the files. He further C.C.No: 35 / 2011 Page No.86 of 181 Judgement in the matter of:-
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stated that he cannot recollect from whose custody these files were seized. Similar version has come on record in the deposition of PW4 A.L.Gambhir and PW6 A.K.Tiwari the other officers of Vigilance team.
146. During his cross examination, PW30 S.K.Kashyap, the initial Investigating officer stated that he does not remember to have examined the aspect as to in whose custody, the claim files were for the period 1999 till 2001 when he seized the same from PW5 V.K.Bajaj. He admitted that he had not taken into possession the inventory regarding seizure of the files by the Vigilance Department from DOXXIII, during the course of Vigilance enquiry in the year 1999.
147. The prosecution evidence which has come up on record reveals that the present claim file Ex. PW3/2 was the record of DOXXIII of NIC where accused G.C.Gupta was C.C.No: 35 / 2011 Page No.87 of 181 Judgement in the matter of:-
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posted at the relevant point of time. However, prosecution has not examined the officer of DOXXIII from whose custody, this file was seized for the first time by the Vigilance team of NIC.
Further, no inventory of the documents available in the claim file was prepared by the officers of Vigilance department of NIC, so as to prove on record what were the documents available in the claim file at the time of sanction of the claim.
The claim file was also not sealed either by the officers of Vigilance department or by IO at the time of respective seizure by them in the years 1999 and 2001, thus no sanctity of preservation of the documents in claim file was maintained.
148. In view thereof, the precedent relied upon by Ld. Defence Counsels in "Anil Maheshwari's case" (Supra) decided by Hon'ble High Court of Delhi in almost similar case squarely applies on this aspect. Thus the contention of Ld. Public Prosecutor that in absence of required documents from the file Ex. PW3/2 the public servant be hauled up for passing C.C.No: 35 / 2011 Page No.88 of 181 Judgement in the matter of:-
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the claim fraudulently, does not hold ground.
149. While holding so, I would hasten to add that a counter contention raised by Ld. Defence Counsels, that for the purposes of adjudication of present case, the claim file Ex. PW3/2 cannot be looked into and is of no relevance, cannot be accepted. As the accused persons themselves are relying on the documents in the claim file and it is not the case of any of the parties that the documents on record in file Ex. PW3/2 were inserted subsequently by Vigilance Department or the Investigating agency. Neither any such suggestion was put on behalf of accused persons to prosecution witnesses from the Insurance Company nor to the witnesses from the investigating agency.
150. Thus the documents in the claim file are the relevant and important ones to ascertain the charges with which accused persons have been charged. C.C.No: 35 / 2011 Page No.89 of 181
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NON EXISTENCE of M/s Luxmi Electrical Company, the consignee.
151. As per the claim file Ex. PW3/2, the damage / loss to the alleged consignment of transformers purportedly sent by consignor M/s Amit Indusries, Delhi to M/s Luxmi Electrical Company, Calcutta, the consignee, through M/s Bullet Road Carriers, was intimated to DOXVIII, NIC, Calcutta. The address of the consignee as per documents in claim file is M/s Luxmi Electrical Company 3/11, B.T.Road, Calcutta.
152. It is alleged by the prosecution that the consignee was a nonexistent firm, as no such firm or company was found existing or operating from the given address.
153. Prosecution in order to prove the same, had examined IO PW31 R.P.Kaushal, PW21 Inspector Sunil Mal C.C.No: 35 / 2011 Page No.90 of 181 Judgement in the matter of:-
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Roy, PW19 Dulal Dutta, PW28 Tapan Dutta and PW29 Javed Anwar.
154. PW31 R.P.Kaushal, the Investigating Officer deposed that he in order to verify the existence of M/s Luxmi Electrical Company had requested S.P., CBI, Calcutta vide letter Ex. PW21/A, on which he deputed Inspector Sunil Mal Roy to do the needful. He deposed that PW21 after personally visiting the address and area, found no such firm existing there, for which he examined witnesses and recorded their statements which he forwarded to him. Nothing was put to this witness during his cross examination except for the suggestion, that he got the report forged through CBI, Calcutta which he denied.
155. PW21 Inspector Sunil Mal Roy deposed that on being deputed by S.P., CBI, Calcutta on the basis of request letter Ex. PW21/A, he himself visited the area and found no C.C.No: 35 / 2011 Page No.91 of 181 Judgement in the matter of:-
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such address and no firm by the name of M/s Luxmi Electrical Company existing from there. He deposed to have recorded statements of Dulal Dutta, Tapan Dutta and Javed Anwar. He deposed that thereafter he forwarded his report to IO.
156. No doubt PW21 was cross examined by Ld. Defence Counsels, but nothing material could be extracted from him, so as to raise any doubt with respect to the enquiries made by him. PW21 denied the suggestion of giving his report without visiting the area.
157. The contention of Ld. Defence Counsels that PW21 had not visited the area and had recorded the statements of the witnesses, while sitting in his office is devoid of any merits. As these witnesses themselves appeared in the witness box during trial and deposed that no firm by the name of M/s Luxmi Electrical Company existed in that area of B.T.Road, Calcutta.C.C.No: 35 / 2011 Page No.92 of 181
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158. PW19 Sh. Dulal Dutta is the most material witness being in occupation of the property no. 3/2/E B.T.Road, Calcutta since his birth. He deposed that he is in occupation of this premises for last 52 years and that no address as 3/11 B.T.Road, Calcutta exists. He deposed that there is no shop or establishment by the name of M/s Luxmi Electrical Company in existence from that locality. On being cross examined he again denied the existence of this company at 3/11 B.T.Road. He stated himself to be running a Fast Food Center from the said address for which he has a municipal license.
159. It is contended by Ld. Defence Counsel that as this witness had not handed over the said municipal license, therefore, his deposition cannot be relied upon. This contention to my mind is too far fetched to be accepted, considering the fact that it is not his having or not having municipal license for his food joint, which is the bone of contention of present case.C.C.No: 35 / 2011 Page No.93 of 181
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160. Apart from the witness from 3 B.T.Road, Calcutta. Prosecution had examined the occupants of the two premises on either side of this property. PW28 Tapan Dutta, occupant of 4 B.T.Road and PW29 Javed Anwar, occupant of 1 & 2 B.T.Road, Calcutta, during the course of their deposition stated that they are running a photo studio and a restaurant respectively by the names of M/s Studio Barnelli & M/s Rice Plate from the premises in their occupation, which are on either side of property no. 3, B.T.Road. Both these witnesses deposed that there is no such address as 3/11 B.T.Road, Calcutta in existence. Both of them stated that there is no shop or firm by the name of M/s Luxmi Electrical Company in existence there from the said locality or address.
161. On being cross examined both these witnesses maintained the version given by them during their examination
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Electrical Company did exist from the given address. It is pertinent to mention that all the three witnesses i.e. PW19, PW28 & PW29 categorically deposed that there is no address as 3/11, B.T.Road, Calcutta. No suggestion whatsoever regarding availability and existence of this address / municipal number was given to any of these three witnesses during their cross examination on behalf of accused persons.
162. It is contended by Sh. R.K.Kohli, Ld. Defence Counsel that merely because these witnesses never came across or heard the name of any firm, that does not necessarily mean that the said firm is not in existence.
163. Though, I find some force in this contention of Ld. Defence Counsel but that does not take away the efforts put in by the Investigating agency and prosecution to put forth a particular point. It is easier to prove and establish a positive fact i.e. existence of something but it is very difficult to prove C.C.No: 35 / 2011 Page No.95 of 181 Judgement in the matter of:-
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a negative or nonexistence of something. For that you can have 'n' number of witnesses, but a possible objection can still st come that probably n + 1 witness, if examined might have deposed otherwise.
164. To obviate this situation, it is to be seen as to whether prosecution had examined the best witnesses or not.
165. To my mind prosecution has done exactly that.
In order to prove existence or nonexistence of a firm / shop operating from a particular area, the best witnesses would have been none other than the businessmen or persons engaged in their respective business from that locality. Prosecution did exactly that and examined those witnesses who are engaged in similar activity from that area.
166. Prosecution in order to bring home this point, had examined the witnesses who are businessmen and are C.C.No: 35 / 2011 Page No.96 of 181 Judgement in the matter of:-
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running their respective establishments from the so called address and from the adjoining properties. As, if any, firm or establishment functions or operates from a particular area, then the best available witnesses to establish its existence are the ones who operate their establishments from the adjoining areas, as it will be they who being aware of their immediate surroundings can depose to that effect. Equally, if no such establishment would be in existence, it will be they only, to throw a light on the same, when called upon to depose so.
167. Prosecution to my mind had examined best available witnesses. Further the deposition of all these witnesses has not been impeached, as nothing has been brought on record during their cross examination for me to infer any reason to doubt the genuineness of their testimonies given by them during their examination in chief. Even otherwise, I found these independent witnesses to be trustworthy having no interest for or against any of the parties. C.C.No: 35 / 2011 Page No.97 of 181
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168. Thus, from the deposition of these witnesses which are corroborated by the version given on record by PW21 Inspector Sunil Mal Roy, prosecution has been able to establish that no such firm i.e. M/s Luxmi Electrical Company, the consignee was in existence from the given address at relevant point of time.
169. As per the claim file Ex. PW3/2 and the documents which are there, it is the alleged consignee, i.e. M/s Luxmi Electrical Company who had given the intimation of loss / damage to the consignment, to DOXVIII, NIC, Calcutta, on the basis of which surveyor was appointed and claim was processed.
170. Considering the fact as held by me hereinabove, that the alleged consignee M/s Luxmi Electrical Company was a nonexistent entity from the given address, the C.C.No: 35 / 2011 Page No.98 of 181 Judgement in the matter of:-
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resulting inference is that no goods / transformers were either sold or sent by the insured / consignor M/s Amit Industries.
As there was no consignment, there is no question of any damage to the same. Further as there was no firm by the name of M/s Luxmi Electrical Company, thus the factum of giving intimation of damage to DOXVIII, Calcutta is also false.
171. Meaning thereby that the claim was fraudulently lodged with NIC by the insured / claimant M/s Amit Industries and was wrongly got approved and released thereby cheating NIC, causing wrongful loss to it.
172. Having held so and in the back drop of above, I shall consider the prosecution evidence which has come up on record vis a vis rival contentions advanced by Ld. Defence Counsels, as per the case of each accused. C.C.No: 35 / 2011 Page No.99 of 181
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Case qua accused TRILOCHAN SINGH
BEDI :
173. Prosecution through deposition of PW11 Gopa Sahu proved on record that an Open Policy of Marine Transit Insurance Ex. PW11/A was issued in favour of M/s Amit Industries. It is also admitted position on record that on filing of claim form pursuant to the letter dated 04.05.1998 Ex.
PW11/C by M/s Amit Industries, the claim note Ex. PW8/B was processed by PW7 and was approved by accused G.C.Gupta for a sum of Rs.2,87,775/ in favour of M/s Amit Industries.
174. Through deposition of PW7, PW15, PW16 & PW13 it is apparent that after approval of the claim, the cheque Ex. PW13/A in favour of M/s Amit Industries was prepared by PW15 and was signed by authorized signatories of NIC.
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175. Prosecution through deposition of PW7 has proved that the cheque of claim amount was handed over to representative of M/s Amit Industries vide voucher Ex. PW8/C. Further through deposition of PW9 Sh. Naresh Tyagi from Oriental Bank of Commerce, it is proved that the said cheque was deposited in account of M/s Amit Industries bearing A/c No. 4567 vide pay in slip Ex. PW9/D and relevant credit entry of realization of the claim cheque proceeds, are in statement of account Ex. PW9/E.
176. Corresponding debit entry of this cheque of claim Ex. PW13/A was proved by PW14 Sh. R.Vaidyanathan from the banker of NIC vide statement of account of NIC Ex. PW14/DX.
177. Meaning thereby that on the basis of claim form, bill and supporting documents furnished by M/s Amit Industries, the insured as are there in claim file Ex. PW3/2, C.C.No: 35 / 2011 Page No.101 of 181 Judgement in the matter of:-
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the claim was processed, passed and its proceeds ultimately landed in the bank account of this firm.
178. Ld. Public Prosecutor in his quest to connect accused Trilochan Singh Bedi to be Proprietor of M/s Amit Industries and thus the beneficiary of this claim amount, has raised three fold arguments.
179. It is contended by Ld. Public Prosecutor that during the course of investigations, house search of accused Trilochan Singh Bedi was conducted by Inspector O.P.Parida on 14.09.2001. He contended that during that house search two blank letter heads / pads of M/s Amit Industries and a personal telephone Index of Amit Bedi were recovered. He contended that the same being clinching evidence establishes that accused Trilochan Singh Bedi was the Proprietor of M/s Amit Industries.
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180. Sh. I.S.Kapoor, Ld. Defence Counsel in his written submission had admitted the factum of house search but he contended that no incriminating document was recovered.
181. Search memo dated 14.09.2001 though depicts recovery of these documents. However, record reveals that these documents were not relied upon by the investigating officer at the time of filing of charge sheet. These documents being not relied, were returned to the accused persons on an application filed by IO dated 25.11.2004.
182. The crime scenario in our country has become distressingly disturbing as the concomitance of the deep rooted criminalization has manifested a situation giving criminals and their abettors a hold over the reins of administration directly or indirectly. Legislature obligated its C.C.No: 35 / 2011 Page No.103 of 181 Judgement in the matter of:-
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part by enacting provisions of Prevention of Corruption Act, so as to deter those having reins of administration not to tread the undesirable path. To give desirable effect to the provisions prime role is of the investigating agency.
183. For successful detection of a crime, honest, fair, qualitative, efficient and thorough field investigation is the need of hour so as to fulfill the object for which legislature has brought the provisions of the Act on the statute book.
184. Investigating officer being Incharge of the field investigations is required to vigilantly collect all the important evidences. As an important link, if missed leads to causing loss of judicial hours and resources spent, the same if detected late, being irretrievable. Any important link or evidence, if not existing is something no one can do about anything, but if an important link is skipped, deliberately and intentionally by the investigating officer, the same tend C.C.No: 35 / 2011 Page No.104 of 181 Judgement in the matter of:-
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to cast aspersions not only on him but also on the investigating agency as such.
185. In the present case, IO in his wisdom had chosen not to rely on the documents, which are now sought by Ld. Public Prosecutor to be pressed in service.
186. I, at this stage refrain myself from conjecturing or inferring any motive on the part of Investigating officer in particular and CBI, the investigating agency, in general for this act of theirs.
187. Be that as it may.
188. Suffice is to say that as these documents, if any, collected being neither relied upon, nor proved in evidence cannot be considered now, at behest of prosecution against the accused. More particularly when the same being not proved, C.C.No: 35 / 2011 Page No.105 of 181 Judgement in the matter of:-
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were not put to the accused during his statement under section 313 Cr.PC.
189. In view thereof, I do not find any merits in this contention of Ld. Public Prosecutor. The same is turned down.
190. Second contention of Ld. Public Prosecutor to connect accused T.S.Bedi with M/s Amit Industries, the insured is that during the course of investigations specimen signatures of accused T.S.Bedi were collected by IO which were referred to expert witness for comparison who proved his reports as Ex. PW27/X2 & Ex. PW27/X5.
191. To counter this contention of Ld. Public Prosecutor, Sh. I.S. Kapoor, Ld. Defence Counsel contended through his written arguments that merely on the basis of C.C.No: 35 / 2011 Page No.106 of 181 Judgement in the matter of:-
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report given by the handwriting expert Ex.PW.27/X2, accused Trilochan Singh Bedi cannot be fastened with any criminal liability. He contended that investigating officer during the course of investigations cannot obtain specimen signatures of accused without permission of the Court. He contended that deposition of IO ie. PW30 S.K.Kashyap is silent as to whether he had taken any permission from the Court before taking specimen signatures of accused Trilochan Singh Bedi. He contended that PW31 R.P.Kaushal during his cross examination had admitted that no permission from Court was taken for taking specimen signatures of accused. Therefore, the same cannot be used for any purpose whatsoever, including for getting the same compared with questioned signatures.
192. He in order to substantiate this contention of his, had relied upon the law laid down by Hon'ble Apex Court in case titled "Sukvinder Singh vs. State of Punjab"
reported as (1994) 55 SCC 152 and in another case titled C.C.No: 35 / 2011 Page No.107 of 181 Judgement in the matter of:-
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"Sapan Haldar & Anr. vs. State" decided by Hon'ble High Court of Delhi in Crl.Appeal No.804/01 decided on 25.05.2002.
193. He contended relying upon these judgments that even the Court cannot order for giving specimen signatures to the accused during the course of investigations. Therefore, the reports of the expert PW20 i.e. Ex/PW.27/X2 and Ex.PW.27/X5 are not admissible and cannot be relied upon against accused Trilochan Singh Bedi. Ld.Defence Counsel had contended that by asking for specimen signatures and obtaining them under compulsion, accused cannot be made a witness against himself.
194. I have perused the deposition of PW30 S.K.Kashyap including his cross examination conducted on behalf of accused Trilochan Singh Bedi. It is apparent on perusal of same, that PW30 during his examination in chief had not stated to have taken permission from the Court for C.C.No: 35 / 2011 Page No.108 of 181 Judgement in the matter of:-
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obtaining specimen signatures of accused Trilochan Singh Bedi.
Further, from cross examination of PW31 R.P.Kaushal it is apparent that before taking specimen signatures, no permission from the court was obtained. However, that in itself, is not sufficient to accept the contention urged by Ld.Defence Counsel and to throw the expert opinion Ex.PW.
27/X2 and Ex.PW.27/X5, overboard.
195. I do not find any merits in this contention of Ld. Defence Counsel as merely by taking the specimen signatures of an accused person during the course of investigations, the Investigating officer can by no stretch of imagination be held as asking him to stand as a witness against himself. Scientifically it is established that the impression of finger prints and handwriting of any individual does have such intrinsic qualities which no one can willfully change. The use of specimen signatures / handwriting of a person becomes important for any C.C.No: 35 / 2011 Page No.109 of 181 Judgement in the matter of:-
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investigating agency to have it compared with the questioned signatures / handwriting just to corroborate the line of investigation which the investigating agency otherwise is carrying forward to unearth the truth in the case in hand.
196. The precedents relied upon by Ld. Defence Counsel in support of his contentions does not come to his rescue in view of the law laid down by Hon'ble Apex Court in case titled "Rabindra Kumar Pal @ Dara Singh Vs. Republic of India", reported as 2011 (2) SCC 490. This judgment delivered by Hon'ble Apex Court is the latest judgment on this aspect whereas the precedent relied upon by Ld. Defence Counsel in Sukhbir's Case (Supra) is of the year 1995.
197. In the other judgment relied upon by Ld. Defence Counsel of Hon'ble High Court of Delhi, the law laid C.C.No: 35 / 2011 Page No.110 of 181 Judgement in the matter of:-
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down by Hon'ble Apex Court in Dara Singh's Case (Supra) was not considered as the said judgment was not quoted before Hon'ble High Court, in Sapan Haldar's Case (supra).
198. In Dara Singh's Case Hon'ble Supreme Court of India had taken into consideration the 11Judge Bench decision in case titled "The State of Bombay Vs. Kathi Kalu Oghad & Ors." reported as AIR 1961 SC 1808. It is pertinent to reproduce the observation made by Hon'ble Apex Court in Dara Singh's case (Supra) which are as under: "Another question which we have to consider is whether the Police (CBI) had the power under the Cr.P.C. to take specimen signatures and writing of A3 for examination by the expert. It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen signatures on the asking of the police and only in the amendment of the Cr.P.C. In 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signatures for the purpose of investigation. Hence, it was pointed out that taking of his signatures / writings being per se illegal, the report of the expert cannot be used as evidence against him. To meet the above claim, learned Addl. Solicitor General heavily relied on a 11Judge Bench decision of C.C.No: 35 / 2011 Page No.111 of 181 Judgement in the matter of:-
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this Court in The State of Bombay Vs. Kathi Kalu Oghad & Ors., (1962) 3 SCR 10 = AIR 1961 SC 1808. This larger Bench was constituted in order to re examine some of the propositions of law laid down by this Court in the case of M.P. Sharma and Ors., Vs. Satish Chandra, District Magistrate, Delhi and Ors., (1954) SCR 1077. After adverting to various factual aspects, the larger Bench formulated the following questions for consideration : "2. ........... On these facts, the only questions of constitutional importance that this Bench has to determine are; (1) whether by the production of the specimen handwritings - Exs. 27, 28 and 29 - the accused could be said to have been 'a witness against himself' within the meaning of Article 20 (3) of the Constitution; and (2) whether the mere fact that when those specimen handwritings had been given, the accused person was in police custody could, by itself, amount to compulsion, apart from any other circumstances which could be urged as vitiating the consent of the accused in giving those specimen handwritings. .................
4. ................. The main question which arises for determination in this appeal is whether a direction given by a Court to an accused person present in Court to give his specimen writing and signature for the purpose of comparison under the provisions of section 73 of the Indian Evidence Act infringes the fundamental right enshrined in Article 20 (3) of the Constitution.
10. ............... Furnishing evidence" in the latter sense could not have been within the contemplation of the C.C.No: 35 / 2011 Page No.112 of 181 Judgement in the matter of:-
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Constitutionmakers for the simple reason that - though they may have intended to protect an accused person from the hazards of selfincrimination, in the light of the English Law on the subject - they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. ...............
11. .............. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of a 'personal testimony' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness'.
12. .................. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered C.C.No: 35 / 2011 Page No.113 of 181 Judgement in the matter of:-
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with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony'.
16. In view of these considerations, we have come to the following conclusions :
1. An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.
2. The mere questioning of an accused person by a policy officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.
3. 'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of C.C.No: 35 / 2011 Page No.114 of 181 Judgement in the matter of:-
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documents or giving materials which may be relevant at a trial to determine the guilt innocence of the accused.
4. Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness'.
5. 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.
6. 'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court.
Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.
7. To bring the statement in question within the prohibition of Article 20 (3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made." In view of the above principles, the procedure adopted by the investigating agency, analyzed and approved by the trial Court and confirmed by the High Court, cannot be faulted with." C.C.No: 35 / 2011 Page No.115 of 181
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199. Having regards to the above observations made by Hon'ble Apex Court, more particularly the one mentioned in subpara (4) of the proceeding para, it is apparent that the Investigating officer during the course of investigations can obtain specimen signatures of an accused for the purposes of comparing it with the questioned signatures. By doing that, a person cannot be said to stand as a witness against himself.
200. In the present case, it is apparent from the prosecution evidence led on record more particularly in view of the deposition of PW30 and PW31, that specimen signatures and handwriting of accused Trilochan Singh Bedi were obtained by the Investigating officer which accused had voluntarily given. There was no suggestion from the accused to PW30 S.K.Kashyap and PW31 R.P.Kaushal, that he was forced by him being Investigating Officer to give specimen handwriting and signatures.C.C.No: 35 / 2011 Page No.116 of 181
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201. The Investigating officer PW31 R.P.Kaushal also during the course of his deposition had stated that accused Trilochan Singh Bedi, in presence of independent witness, has given his specimen signatures and handwriting Ex.PW.27/J. This leaves me with no ground to doubt that specimen signatures of the accused were obtained from him under any pressure, threat or duress.
202. In view of above, the contention raised by Ld. Defence Counsel that the report of expert Ex. PW27/X2 cannot be relied upon is turned down.
203. It is pertinent to mention here that this argument of Ld. Defence Counsel for accused Trilochan Singh Bedi was not relevant and superfluous, in the context of case qua him, however, I had discussed it, as the same was also raised by Sh. Rakesh Malhotra, Ld. Defence Counsel C.C.No: 35 / 2011 Page No.117 of 181 Judgement in the matter of:-
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for the accused Sanjay Raina, to whose case I shall advert to later.
204. Qua accused Trilochan Singh Bedi this discussion was not required, as the expert witness PW20 Mohinder Singh in his report Ex. PW27/X2 has not expressed any opinion on the questioned signatures of this accused vis - a
- vis the specimen signatures of his. PW20 has not attributed the questioned signatures in the claim file Ex. PW3/2, to accused T.S.Bedi.
205. This has brought me down to the most important argument raised on behalf of prosecution, with respect to the most important link between the accused T.S.Bedi and the fraudulent claim amount. It is contended by Ld. Pubic Prosecutor relying upon depositions of PW9 & PW18, the witnesses from Oriental Bank of Commerce, Shahdara Branch, that it was accused Trilochan Singh Bedi C.C.No: 35 / 2011 Page No.118 of 181 Judgement in the matter of:-
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who as Proprietor got account no. 4567 opened in the name of M/s Amit Industries, in which account the cheque of claim proceeds was deposited.
206. Countering these contentions, it is submitted by Sh.I.S.Kapoor, Ld. Defence Counsel that prosecution through its witnesses has failed to connect accused Trilochan singh Bedi with this account. He contended that someone else might have opened this bank account using the name of accused, which investigating agency has failed to detect. He contended that no pecuniary advantage was caused to his client.
207. I have considered the rival contention and have perused the deposition of prosecution witnesses and have also gone through the documentary evidence on record coupled with statement of accused T.S.Bedi recorded under section 313 Cr.PC.C.C.No: 35 / 2011 Page No.119 of 181
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208. It is evident that PW9 Naresh Kumar Tyagi being officer of Oriental Bank of Commerce had deposed that he on being authorized by his Chief Manager vide Ex. PW9/A had submitted the account opening form of M/s Amit Industries which was opened through its Proprietor Trilochan Singh Bedi i.e. Ex. PW9/C to IO. He deposed that the pay in slip vide which cheque of Rs.2,87,775/ i.e. claim amount was deposited in this account is Ex. PW9/D. He also proved the certified copy of statement of account Ex. PW9/E which reflects a credit entry with respect to this cheque. He further proved a letter Ex. PW9/B as per which the opening of this account was authorized by Sh.S.P.Jain, the then Manager.
209. Prosecution in order to corroborate the version of PW9 had also examined Sh.S.P.Jain, the then Manager of the bank, who authorized the opening of bank account no. 4567 in the name of M/s Amit Industries. He appeared in the witness box as PW18.C.C.No: 35 / 2011 Page No.120 of 181
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210. PW18 Sh. S.P.Jain deposed that he had authorized the opening of bank account no. 4567 in the name of M/s Amit Industries vide account opening form Ex. PW9/C. This witness categorically deposed that when any account is opened then the party opening it, needs to sign the form in presence of bank official and he identified his signatures at point 'C' on Ex. PW9/C authorizing the opening of this account.
From the form Ex. PW9/C it is evident that the said account in the name of M/s Amit Industries was opened by Trilochan Singh Bedi.
211. No suggestion whatsoever was given on behalf of accused Trilochan Singh Bedi to this witness during his cross examination, that it was not him who had opened the account vide form Ex. PW9/C. It was not suggested to the witness that the signatures on Ex. PW9/C of the account holder are not of Trilochan Singh Bedi or he had not signed this form in C.C.No: 35 / 2011 Page No.121 of 181 Judgement in the matter of:-
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presence of PW18. It was also not suggested on behalf of accused to this witness that some one else claiming him to be Proprietor of M/s Amit Industries had opened this account.
212. Thus, in absence of any suggestion of this sort, the deposition made by PW18 has remained unimpeached. As per his deposition the party who opened the account i.e. Trilochan Singh Bedi as Proprietor of M/s Amit Industries, had signed in presence of bank official who then authorized the opening of account vide his signatures at point 'C' on Ex. PW9/C.
213. Further, a suggestion on behalf of accused themselves was given to PW9 during his cross examination which was accepted by him that, "It is correct that the address proof of every account holder is collected as a matter of proof. The address proof must have been taken in this case also". C.C.No: 35 / 2011 Page No.122 of 181
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214. From this suggestion which came from the accused, it is clear that accused has admitted the address given in the account opening form, at the time of opening the same to be the correct address of account holder. No other or contrary suggestion was given to PW9 on behalf of accused.
215. This coupled with deposition of PW18 as well as on the basis of account opening form Ex. PW9/C, it is deduced that the account holder mentioned in the form, had signed the same in presence of bank officer and that his address mentioned thereon, is correct of which proof was also taken at the time of opening it.
216. It is apparent on perusal of the account opening form Ex. PW9/C that the same was opened on 24.08.1990 and the address is mentioned as K33, Naveen Shahdara32 and telephone number as 2285999. There is no denial on the part of accused that this address is not his. C.C.No: 35 / 2011 Page No.123 of 181
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Rather, he while recording his statement under section 313 Cr.PC has also given his address to be K33, Naveen Shahdara, Delhi, which is also mentioned by him, in his bail bond furnished in court.
217. That being the position, it leads to unerring conclusion that it is accused Trilochan Singh Bedi who is the account holder of account no. 4567 as Proprietor of M/s Amit Industries.
218. I am fortified to arrive at this inference as this accused has not given any suggestion to any of the two witnesses from the bank, that it was not him but someone else using his name and address has opened this account. For the first time he during his statement under section 313 Cr.PC disowned this account, stating that he had not opened the same.C.C.No: 35 / 2011 Page No.124 of 181
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219. No doubt, provision under section 313 (3) of Code of Criminal Procedure gives him a right to evade any question or even to give false reply to the same. However, Sub section 4 of section 313 Cr.PC empowers the Court to use the answers given by him in his statement.
220. Accused Trilochan Singh Bedi while disowing this bank account during his statement under section 313 Cr.PC has not stated to have lodged any complaint either with police or any other investigating agency even after coming to know the existence of this account, stating that his name and address is being wrongly used. Had there been any semblance in his claim, he would have lodged the report or at least would have informed the bank about such misuser.
221. But that was not to be.C.C.No: 35 / 2011 Page No.125 of 181
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222. Neither any report was placed or proved on record by him during his defence evidence, to substantiate his claim that it was not him, but someone else using his name and address who is operating this account.
223. Further during his statement under section 313 Cr.PC accused Trilochan Singh Bedi was confronted with statement of account of this account Ex. PW9/E, wherein besides the credit entry of the claim amount, there are other entries relating to deposit of LIC premium and other payments, the same have not been specifically denied by accused to be not his or not related to him.
224. Even otherwise, this contention of Ld. Defence Counsel that someone else using the name and address of accused Trilochan Singh Bedi had obtained the fraudulent claim amount from NIC, does not appeal to reason. The same is improbable and unrealistic.C.C.No: 35 / 2011 Page No.126 of 181
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225. On bare perusal of Ex. PW9/C coupled with deposition of PW18 it is evident that this account of M/s Amit Industries was opened on 24.08.1990, whereas the Open Marine Policy was issued / taken from NIC by M/s Amit Industries in April'1998 and the claim was lodged in May'1998 and cheque of the claim amount was deposited in June'1998.
Meaning thereby that the present transaction of fraudulent claim with NIC was done after about 8 years of opening of this bank account.
226. It is highly improbable rather impossible for anyone to open an account using name and address of the accused Trilochan Singh Bedi with the intention to use this account, for claiming the fraudulent amount after eight years of opening the same. Even otherwise on perusal of statement of account Ex. PW9/C, it is apparent that there have been regular transactions and entries from this account. It is unbelievable that someone would use the name of accused C.C.No: 35 / 2011 Page No.127 of 181 Judgement in the matter of:-
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Trilochan Singh Bedi and also his address, to carry on normal business activities.
227. For these reasons, I am of the opinion that it was accused Trilochan Singh Bedi only who being the account holder had opened it as Proprietor of M/s Amit Industries. His plea of disowing this bank account is an afterthought and raised just to make an attempt to escape from criminal liability.
228. As has already been held by me that the amount of cheque Ex. PW13/A issued by NIC with respect to this transaction was credited in this account, therefore, the contention of Ld. Defence Counsel that no pecuniary advantage had accrued to accused Trilochan Singh Bedi is turned down.
229. Even the letter heads of M/s Amit Industries on which claim was lodged for and on behalf of this firm by C.C.No: 35 / 2011 Page No.128 of 181 Judgement in the matter of:-
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accused Trilochan Singh Bedi which are at page no. 4 & 7 of claim file Ex. PW3/2 bears the address as K33, Naveen Shahdara, Delhi.
230. Further it is apparent on bare perusal of the signatures on the letter dated 04.05.1998 Ex. PW11/C, letter dated 12.05.1998 and discharge voucher which are at page no. 4, 7 & 26 of the claim file and comparing it with the one on the account opening form Ex. PW9/C and signatures on the bail bond, the similarities are so apparent which leads to the only inference that it was him, who had signed these documents for lodging the claim with NIC on the basis of a fraudulent consignment which was never sent.
231. Prosecution thus has been able to establish that it was accused Trilochan Singh Bedi who as Proprietor of M/s Amit Industries had submitted false claim documents, with the claim form, on the basis of a transaction which was never C.C.No: 35 / 2011 Page No.129 of 181 Judgement in the matter of:-
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carried on, using the same as genuine with intention to cheat the Insurance company.
232. He being the 'principal beneficiary' was aware of each and every step of the conspiracy and with help and assistance of coconspirators he managed to cause wrongful gain to himself and wrongful loss to NIC by getting a claim on the basis of false and forged documents, which he submitted with NIC, knowing or having reasons to believe to be forged ones.
Case qua accused SANJAY RAINA :
233. It is the case of prosecution that vide letter dated 23.04.1998 Ex. PW11/B DOXVIII, Calcutta had informed policy issuing office i.e. DOXXIII, NIC, Delhi, about receipt of an information of damage to the consignment covered under policy Ex. PW11/A, on which they had appointed M/s Z.K. Consultancy Services Pvt. Ltd. as surveyors. It is alleged C.C.No: 35 / 2011 Page No.130 of 181 Judgement in the matter of:-
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that vide this letter Calcutta office had forwarded a survey report which is at page no. 1214 of the file and its bill at page 11 of file Ex. PW3/2, to Delhi office which was received by accused G.C.Gupta on 08.05.1998.
234. It is the case of prosecution that the said survey report was signed by accused Sanjay Raina as "Vinod Kaul" authorized signatory of M/s Z.K. Consultancy Services Pvt. Ltd.
235. It is further the case of prosecution that the letter Ex. PW11/B does not bear signatures of D.C.Mandal and the said letter was not sent by DOXVIII, Calcutta.
236. As per contents of letter Ex. PW11/B, they had received an intimation of damage to the consignment covered under policy Ex. PW11/A from the consignee, M/s Luxmi Electrical Company, on which M/s Z.K. Consultancy Services C.C.No: 35 / 2011 Page No.131 of 181 Judgement in the matter of:-
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Ltd. were appointed as surveyor. It has already been held by me hereinabove that no such consignee was in existence.
237. Prosecution to prove that letter Ex. PW11/B was never sent by D.C.Mandal of DOXVIII, Calcutta, had examined him. He appeared in the witness box as PW27. He deposed that the signatures on this letter are not his. Besides that he deposed that for interdivision communication, they do not use the letter head of the Division, rather they use inter office memo.
238. No doubt he was cross examined on behalf of accused G.C.Gupta but nothing material emanated out of same so as to discredit the version given on record by him during his examination - in - chief. PW27 D.C.Mandal during his cross examination did state that he had not replied to letter Ex. PW22/A of Sh.S.N.Roy. This ipsofacto does not in any way diminishes the value of his version given in examination in chief. C.C.No: 35 / 2011 Page No.132 of 181
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239. His specimen signatures were taken by IO during investigations and were referred for expert opinion to be compared with the questioned signatures on Ex. PW11/B. However, no opinion on the same was given by the expert witness in the report Ex. PW27/X2. Further the dispatch register of DOXVIII, Calcutta Ex. PW27/A does not reflect any entry of this letter Ex. PW11/B to have been sent by that office to Delhi.
240. Apart from that as per deposition of PW27, they appoint surveyor from the empaneled list of surveyors. He further deposed that he never heard the name of M/s Z.K. Consultancy Services Ltd. as surveyor of NIC.
241. Prosecution during the deposition of IO Inspector R.P.Kaushal PW31 has proved that during the course of investigations, he had collected list of empaneled C.C.No: 35 / 2011 Page No.133 of 181 Judgement in the matter of:-
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surveyors with DOXVIII, Calcutta which is Ex. PW31/H. It is apparent on perusal of same that name of M/s Z.K. Consultancy Services Ltd. does not appear in that list.
242. Prosecution through deposition of PW27 coupled with the dispatch register's certified copy Ex. PW27/A has been able to establish that the letter Ex. PW11/B was not sent by Calcutta office to Delhi. Merely because PW27 D.C.Mandal had not replied to the letter Ex. PW22/A of S.N.Roy, does not in any way impeach the version given on record by PW27. As the same is in consonance to the dispatch register Ex. PW27/A. Further the handwriting expert also finding no similarities between signatures on Ex. PW11/B with specimen signatures of D.C.Mandal on Ex. PW27/R, did not attribute the same to D.C.Mandal.
243. Meaning thereby that neither any surveyor was appointed by DOXVIII, nor they forwarded either the loss C.C.No: 35 / 2011 Page No.134 of 181 Judgement in the matter of:-
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intimation letter nor the survey report to DOXXIII of New Delhi. Thus the letter Ex. PW11/B alongwith survey report which is part of claim file was submitted by the persons interested in getting the claim from NIC after forging the same.
Having held that letter Ex. PW11/B was a forged letter not sent by DOXVIII, Calcutta to Delhi, I shall now advert to the survey report in claim file Ex. PW3/2.
244. To attribute the survey report to accused Sanjay Raina, prosecution has examined IO PW31 R.P.Kaushal and PW35 B.S.Kanojia. Both these witnesses deposed that during the course of investigations, specimen signatures of accused Sanjay Raina were taken by PW31, the IO in presence of independent witness PW35. No suggestion whatsoever was given to either of the two witnesses on behalf of accused that his signatures were taken under threat, fear or duress.
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245. It has already come up from deposition of IO PW31 R.P.Kaushal that the questioned signatures were sent for expert opinion alongwith the specimen signatures and report Ex. PW27/X2 and Ex. PW27/X5 were received. These reports were proved by the handwriting expert Sh. Mohinder Singh, PW20.
246. The bare perusal of the report Ex. PW27/X2 coupled with the detailed reason in support thereof of PW20 goes on to establish that the signatures on the survey report of "Vinod Kaul" were done by accused Sanjay Raina. Cross examination of this witness on behalf of accused Sanjay Raina has not yielded much, rather the witness further clarified about the conclusions on which he arrived at, using scientific aids like VSC2000 and stereo microscope.
247. Sh. Rakesh Malhtora, Advocate, relying upon Sapan Haldar's Case (Supra) had contended that C.C.No: 35 / 2011 Page No.136 of 181 Judgement in the matter of:-
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expert opinion Ex. PW27/X2 cannot be relied upon. However, this contention of his is devoid of any merits, as I have already considered this argument hereinabove alongside the arguments of Sh. I.S.Kapoor, Advocate, while dealing with case qua accused T.S.Bedi.
248. In view thereof, prosecution has been able to establish that the survey report which is at page 12 14 and the bill which is at page 11 of claim file Ex. PW3/2 was prepared, signed and filed by accused Sanjay Raina. It is pertinent to mention here that Hon'ble High Court of Delhi vide its judgment dated 08.08.2014 in the case titled "Sanjay Raina Vs. CBI" bearing Criminal Appeal No. 270 of 2008 had considered a similar question regarding this very accused wherein also it was held that this accused Sanjay Raina had signed a survey report, subject matter of that case, as "Vinod Kaul" of M/s Z.K. Consultancy Services Ltd. C.C.No: 35 / 2011 Page No.137 of 181
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249. As has already been held by me, hereinbefore that there being no consignee, no consignment was sent and thus there is no question of any loss to the consignment, therefore, the survey report on record is a false and forged report prepared by accused Sanjay Raina with intention to cheat NIC by inducing it to pass claim in favour of M/s Amit Industries.
250. Had there been no nexus between him and claimant, then he would not have forged the survey report, which is part of claim file Ex. PW3/2.
251. This has brought me to the next issue raised to establish the nexus between the accused persons.
252. It is further alleged that the cheque of recovery amount of Rs.20,144/ deposited with the Insurance Company by recovery agent M/s Recovery India International of accused C.C.No: 35 / 2011 Page No.138 of 181 Judgement in the matter of:-
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Rakesh Mudgil, came from account of Sanjay Raina, which he had with M/s Jain Coop Bank Ltd., Shalimar Park, whereas it should have come from the transporter / carrier.
253. Prosecution to prove the same had examined PW17 Nishant Aggarwal & PW24 Rishab Jain, the witnesses from Jain Coop Bank, Shalimar Park, Shahdara.
254. PW24 Sh. Rishab Jain proved the copy of account opening form of M/s Webers India as Ex. PW24/A as per which account no. 634 was opened. This witness deposed that as per this form Sanjay Raina is the proprietor of this firm who had submitted photocopy of his voter Icard which is Mark Y1 as a supporting document, while opening this account.
255. It is evident from this deposition of PW24 which has not been challenged by accused Sanjay Raina that he as Proprietor of M/s Webers India, had an account with Jain C.C.No: 35 / 2011 Page No.139 of 181 Judgement in the matter of:-
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Coop Bank, Shalimar Park bearing account no. 634 as his voter Icard and specimen signature card bearing his photo are annexed with it.
256. Further PW17 Nishant Aggarwal during the course of his deposition had proved that vide pay in slip Ex. PW17/C a request was made by the account holder to prepare a pay order of Rs.20,144/ in favour of National Insurance Company on the basis of which pay order no. 103135 Ex. PW3/D4 was prepared.
257. Nothing was put to this witness to controvert or refute the fact that pay order Ex. PW3/D4 was not prepared against pay in slip Ex. PW17/C. Merely because this witness admitted that at the time when this pay order was prepared, he was not working with the bank does not by any means belittle the version given by him. As he being the witness of records, had deposed on the C.C.No: 35 / 2011 Page No.140 of 181 Judgement in the matter of:-
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basis of bank records and not on the basis of his personal knowledge.
258. Sh. Rakesh Malhotra, relying on cross examination of PW24 and statement of account Ex. PW24/B contended that there is no corresponding debit entry in statement of accused, therefore, it cannot be proved that this draft was prepared from account of Sanjay Raina.
259. I do not find any merits in this contention of Ld. Defence Counsel, as bare perusal of the pay order application form Ex. PW17/C reveals that it was made by accused Sanjay Raina as it bears his signatures and address on which pay order Ex. PW3/D4 was issued and its number is mentioned on the form to be "103135". This in itself is sufficient to explain that accused Sanjay Raina got this pay order made from his bank in favour of NIC for Rs.20,144/.
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260. So far as debit entry in his statement of account Ex. PW24/B is concerned, it is apparent that there is a debit entry of same date i.e. 29.12.1998 of Rs.29,001/. The explanation put forth by Ld. Pubic Prosecutor is that whenever more than one drafts are sought by the applicant against one cheque, then a single debit entry is made by the bank of consolidated amount. The same seems to me to be plausible explanation, in view of the clinching evidence that pay order Ex. PW3/D4 was prepared on the basis of application form Ex. PW17/C bearing signatures of accused Sanjay Raina.
261. In view of above, prosecution has been able to establish that the pay order in favour of National Insurance Company bearing no. 103135 for Rs.20,144/ was prepared from the account of M/s Webers India, Proprietorship concern of accused Sanjay Raina.
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262. As per voucher at page no. 20 of claim file it is apparent that this very pay order was deposited with NIC by accused Rakesh Mudgil of M/s Recovery India International, the recovery agent, showing / claiming it to be recovery amount, recovered from the carrier.
263. This fact further establishes the nexus between the accused persons. Had there been no nexus, then why accused Sanjay Raina would have got this pay order of Rs. 20,144/, shown as recovery amount from transporter, made from his own account.
264. Prosecution thus has been able to establish that accused persons being in complicity with each other and to further the object of conspiracy had performed their assigned roles.
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Case qua accused RAKESH MUDGIL :
265. As per deposition of PW3 A.K.Seth, PW7 Madan Lal Meena & PW11 Gopa Sahu M/s Recovery India International was appointed in this case for affecting recovery from transporter as recovery agent. In view of the deposition of these witnesses coupled with receipt dated 23.07.1998 Ex.
PW3/D1, the documents were collected by accused Rakesh Mudgil for and on behalf of M/s Recovery India International. Further as per the letter Ex. PW3/D3 Rakesh Mudgil reported to NIC that he has pursued the matter with the carrier, who due to his efforts has offered 7% recovery. This letter was received by accused G.C.Gupta vide his endorsement at point 'A' and agreed for settling on that amount.
266. Thereafter, as per receipt which is at page no. 20 of the file Ex. PW3/2, a banker's cheque of Rs.20,144/ was deposited by the recovery agent with NIC. C.C.No: 35 / 2011 Page No.144 of 181
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267. The factum that accused Rakesh Mudgil is Proprietor of M/s Recovery India International is admitted by him during his statement under section 313 Cr.PC. He also admitted the fact that his firm was appointed as Recovery Agent in this case.
268. The factum of deposit of Recovery amount of Rs.20,144/ by M/s Recovery India International with NIC is proved on record through receipt which is at page 20 of the claim file Ex. PW3/2. Even otherwise this fact has been admitted by accused Rakesh Mudgil himself.
269. Sh.R.K.Kohli, Ld. Defence Counsel had contended that Rakesh Mudgil had recovered this amount from the transporter. He relying upon the cross examination of PW3 A.K.Seth, PW4 A.L.Gambhir and PW6 A.K.Tiwari, submitted that the Vigilance team during the course of inquiry conducted by them, had met one Mr. Prem of M/s Bullet C.C.No: 35 / 2011 Page No.145 of 181 Judgement in the matter of:-
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Road Carriers through whom the alleged consignment was stated to have been transported. Ld. Defence Counsel submitted that as prosecution has failed to examine said representative of M/s Bullet Road Carriers therefore, the claim of recovery agent of having collected the cheque of recovery amount from the said transporter cannot be negated. He contended that said Prem being the best witness was deliberately with held by the prosecution as a result of which prejudice was caused to the accused.
270. Ld.Defence Counsel in support of his contentions had relied upon the law laid down by Hon'ble Supreme Court in case titled "Narain & Others vs. State of Punjab" reported as AIR 1959 SC 484.
271. I have considered this contention of Ld.Defence Counsel and have also perused the precedents relied upon by him.
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272. It is and always has been a sound and well established "rule of law" and practice, that a court while adjudicating upon a particular issue, should always be concerned with the quality of evidence before it and not quantity for proving or disproving a fact. The material witnesses listed in the "list of witnesses" by the prosecution, should be and ought to be examined. However, the discretion always rests with the Public Prosecutor, who is Incharge of the prosecution case, not to examine irrelevant or superfluous witnesses, more particularly, when a particular fact which is sought to be proved, has already come up on record through deposition of other witnesses already examined.
273. The relevant test has been laid down by Hon'ble Supreme Court in the precedent relied upon by Ld.Defence Counsel which is, "The test is, whether he is a witness essential to the unfolding of narrative, on which the prosecution is based".C.C.No: 35 / 2011 Page No.147 of 181
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274. Going by this particular test laid down by Hon'ble Apex Court, I am of the opinion that all the material witnesses, who were essential to the unfolding of prosecution case, were examined. Those witnesses who were not summoned despite having figured in the list of witnesses, are superfluous witnesses. Further, there was no prohibition imposed on the accused Rakesh Mudgil, to summon any or all those witnesses, who he thinks, were necessary for his defence.
Accused Rakesh Mudgil could himself had summoned Prem to prove the defence sought to be put forth by him. He however has failed to do so to establish that he had collected the recovery amount from the transporter / carrier.
275. In view thereof, I am of the considered opinion that this argument has been raised only as an afterthought and in an attempt to dent the prosecution case in an indirect manner. The same is therefore rejected.
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276. Prosecution through deposition of its witnesses and as held by me hereinabove, while dealing with case qua accused Sanjay Raina has proved on record that the banker's cheque no. 103135 which was deposited by Rakesh Mudgil pursuant to his letter Ex. PW3/D3 and deposited vide receipt at page no. 20 of claim file Ex. PW3/2, did not come from transporter but from the account of coaccused Sanjay Raina, who had forged the survey report in this case.
277. This fact further fortifies the nexus / complicity amongst the accused persons and their respective roles towards achievement of ultimate object of the conspiracy.
278. In order to defend accused Rakesh Mudgil, Sh. R.K.Kohli, Advocate had contended that this is a regular practice that the recovery agents used to negotiate with the carrier on behalf of the Insurance Companies for more than one C.C.No: 35 / 2011 Page No.149 of 181 Judgement in the matter of:-
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case simultaneously and after getting a consolidated recovery affected, they used to deposit the same proportionately with the Insurance Companies from their own accounts.
279. No doubt, Ld. Defence Counsel had put such suggestion to the prosecution witnesses more particularly to PW11 Gopa Sahu and Investigating Officers i.e. PW30 & PW31, but none of them admitted that any such rule or procedure was in existence or practice. Nor any such rule or policy was brought on record by Ld. Defence Consel to confront the prosecution witnesses or to prove in defence evidence. Rather PW3 A.K.Seth specifically stated during his cross examination that recovery should come from the transporter.
280. The contention sought to be raised by Ld. Defence Counel seems to be preposterous. Had any such practice or policy in existence or prevalence the same would have led to bizarre results and propositions. It would have C.C.No: 35 / 2011 Page No.150 of 181 Judgement in the matter of:-
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been the absolute discretion of the recovery agents in such eventuality to decide firstly that what should be the "consolidated amount" which they would accept from the transporter / carrier while negotiating more than one case of a single Insurance Company or the cases of different Insurance Companies. Secondly, how and who shall decide as to how much from this consolidated recovery is to be deposited in separate cases.
281. In view thereof, I do not find any merits in this contention of Ld.Defence Counsel.The recovery if any,had to come from transporter / carrier straight in the name of the Insurance Company. Recovery Agent acts as no more than a facilitator or mediator between the Insurance Company and the carrier against his remuneration i.e. Recovery Fee which he gets from the Insurance Company. Further in the present case, it did not even come from the Recovery Agent, but came from coaccused Sanjay Raina,who had forged the survey report in this case. C.C.No: 35 / 2011 Page No.151 of 181
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282. In the present case, it is apparent from the evidence which has come up on record that recovery was not affected from M/s Bullet Road Carriers, as no such consignment was sent through this carrier. Thus, there was no occasion with the recovery agent to negotiate with such a transporter who had not carried any such consignment and to have the recovery affected from thin air.
283. This act / conduct on the part of Rakesh Mudgil, leads to only one inference that whatever he had done the same is owing to the nexus he had with the insured and other coaccused Sanjay Raina. Had that been not so, then he could have very well submitted a report with the Insurance Company stating actual facts that no recovery could be affected from the transporter. But that was not to be. As he had to perform his role in the larger conspiracy. His act of doing so, in terms of Section 10 of Evidence Act makes it explicit that he was part of the conspiracy. C.C.No: 35 / 2011 Page No.152 of 181
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284. This has brought me down to the last contention urged by Sh.R.K.Kohli, Ld. Advocate in defence of accused Rakesh Mudgil. It is submitted by Ld. Defence Counsel relying on cross examination of prosecution witnesses conducted by him, that recovery agent is appointed once the claim is settled and approved by the insurance company. He contended that if at all there was any conspiracy, then the object of same was to get the claim amount released and the moment when the said object is achieved, the conspiracy stands accomplished and terminates. He contended that the acts and actions of Rakesh Mudgil as recovery agent were subsequent actions therefore, the same cannot be linked with conspiracy.
285. This contention of Ld. Defence Counsel though has some merits but the same are not sufficient to take the acts and actions of recovery agent outside the scope and purview of the claim, which once registered does not culminates on its release by the Insurance Company to the claimant / C.C.No: 35 / 2011 Page No.153 of 181 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
insured. The claim file remains alive till the Insurance Company settles its dues with the transporter / carrier. This fact is evident that the letter of recovery agent Ex. PW3/D3 ;
Receipt Ex.PW.3/D1 ; and his bill Ex.PW.3/D5 which are at Page No.25, 22 and 21 respectively, which was approved by accused G.C.Gupta and the voucher of payment vide which Recovery Amount was deposited which is at Page No.20, were part of the Claim File Ex.PW.3/2. Further the conspiracy as emanating from the physical manifestations of its different players as is being proved on record by the prosecution was not to culminate at the release of claim amount. It was also the object of it, that the claim file once for all is closed by the Insurance Company after accepting whatever little amount which is deposited with it in the name of recovery.
286. Had that not been the object and had accused Rakesh Mudgil acted in a bonafide manner as recovery agent, then he after trying to have the recovery affected from the C.C.No: 35 / 2011 Page No.154 of 181 Judgement in the matter of:-
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transporter, could have reported to the Insurance Company that no recovery could be affected. There was no other reason but for one, with him to have deposited a sum of Rs.20,144/ with the Insurance Company from the account of coaccused Sanjay Raina, who had forged the survey report in this case.
That one and only reason is obvious which is his nexus with the claimant / insured and other coaccused. This conduct of accused Rakesh Mudgil has forced me to turn down this contention of Ld. Defence Counsel.
287. Prosecution thus has been able to establish on record, that accused Rakesh Mudgil, being party to the conspiracy, had performed his assigned role and cheated the Insurance Company by inducing it to believe that the said transporter had transported the consignment and caused damage to it by depositing the recovery amount claiming the same to have been recovered by him from the alleged transporter.
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Dated : 16.10.2014.
Case qua accused G.C.GUPTA, the public servant :
288. Ld. Defence Counsels defending the public servant G.C.Gupta had vociferously contended that whatever he has done in the present claim, the same was in discharge of his official duties. Ld.Defence Counsels relying on the deposition of prosecution witnesses, more particularly, the cross examination conducted by them of PW3 ; PW4; PW6; PW7; PW10 and PW11 had contended that appointing a surveyor / tracer after receipt of intimation of loss of consignment is no illegality. It is further stated that it is not an illegality to receive any letter or Dak (post) by the accused G.C.Gupta and taking action on it. It is further submitted that whatever he has done, the same was on the basis of processing and recommendations of subordinate officers, on which he has no reasons to doubt. Sh.Ramesh Gupta, Ld.Senior Advocate C.C.No: 35 / 2011 Page No.156 of 181 Judgement in the matter of:-
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Dated : 16.10.2014.
& Sh.C.L.Gupta, Ld. Defence Counsels further contended that there is no evidence on record to impute that at any point of time, accused public servant G.C.Gupta had met the claimant / insured, either before or during the processing of claim or after passing of it.
289. No doubt, the entire prosecution evidence does not anywhere states that the claimant / insured had met the accused public servant. But that in itself, is not and cannot be a ground to absolve the accused. As with respect to the offence of conspiracy, hardly one gets such direct evidence. It is from the act or actions and physical manifestation of the parties, that one has to infer as to whether they were acting in concert with a particular object to achieve.
290. The mode and manner in which the accused public servant had acted, in the present claim, case has to be seen from the available documents in the file Ex.PW.3/2. C.C.No: 35 / 2011 Page No.157 of 181
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Dated : 16.10.2014.
291. Before adverting to consider the rival contentions raised during the course of arguments, visavis the evidence which has come up on record, I deem it appropriate to consider a contention raised by Ld.Public Prosecutor relying upon "Claim Procedure Manual" of National Insurance Company. It is contended by him that as per the Claim Procedure Manual of National Insurance Company, intimation of loss can be given by the insured, consignor, consignee or their agents, by any mode, to the nearest office of the insurance company. He contended that the said "Dealing Office" is then required to allot a "claim number" after ascertaining the existence of policy. He contended that it is the said dealing office who then is required to arrange for survey and is required to process the entire claim, upto final settlement, keeping the policy issuing office informed of all developments.
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292. He contended that in the present case, this procedure was deviated from, as the processing of claim was done by DOXXIII of NIC despite the fact that claim intimation was allegedly reported to Calcutta Office. He contended that the Calcutta Office being the Dealing Office, should have processed the claim, under intimation to the Policy Issuing Office.
293. This contention of Ld.Public Prosecutor has been objected by Ld.Defence Counsels, stating that no such procedure was being adopted, nor there was any such practice. Ld.Defence Counsels contended that it is the policy issuing office, who was having all the documents in its possession regarding the policy in question, therefore it was that office only, which was competent to process the claim, till final settlement.
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294. I have considered these submissions advanced and have also considered the deposition of prosecution witnesses ie. PW3, PW4, PW6, PW7, PW10, PW11, PW22, PW23 and PW27.
295. I do not find any force in this contention of Ld.Public Prosecutor. Firstly, on the ground that the Claim Procedure Manual on which he is relying to raise this contention, was not placed on record and proved during the course of trial. Nowhere, in the charge sheet, it is alleged by the prosecution that the claim should have been processed by the "Dealing Office" and not by the "Policy Issuing Office". Secondly, this alleged discrepancy as raised by Ld.Public Prosecutor, is not supported by any of the prosecution witnesses, mentioned above, who have deposed about the procedure and the manner in which the same takes place, once, an intimation of loss is reported to NIC. Rather, PW3 C.C.No: 35 / 2011 Page No.160 of 181 Judgement in the matter of:-
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A.K.Seth, during the course of his cross examination has categorically stated that as per the practice and procedure, claim is required to be processed by "Policy Issuing Office".
296. Even otherwise this contention has been raised by Ld.Public Prosecutor for the first time during the course of arguments, which neither forms part of the charge sheet, nor is supported by any documentary or oral evidence, the same is accordingly rejected.
297. Having held so, I shall now deal with the other contentions qua the public servant, on the basis of evidence on record.
298. There is no denying the fact on the basis of evidence which has come up on record that loss / damage to consignment can be reported either at the policy issuing office or to the nearest office of NIC. It is also admitted position on C.C.No: 35 / 2011 Page No.161 of 181 Judgement in the matter of:-
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record that the concerned officer on receipt of same has to appoint a surveyor only after verifying the policy particulars from the policy issuing office.
299. In the present case as per Ex.PW.11/B, a letter from DO18 NIC Calcutta which has already been held by me hereinabove to be a forged letter, loss intimation was given by the alleged consignee (nonexistent) on the basis of which, M/s Z.K.Consultancy Services Pvt. Ltd. were deputed as surveyors. It has also been held by me hereinabove, that the survey report which is at Page No.12 to 14 of Claim File Ex.PW.3/2, which was also stated to be forwarded vide this very letter is a forged survey report, forged by accused Sanjay Raina.
300. Perusal of this letter Ex.PW.11/B dated 23.04.1998 reveals that the same was received by accused G.C.Gupta on 08.05.1998 as the same bears his endorsement of said date.
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301. Record further reveals that the claimant / insured M/s Amit Industries had lodged their claim with NIC, vide letter dated 04.05.1998 Ex.PW.11/C. Perusal of this letter which was also directly received by accused G.C.Gupta, reveals that alongwith this letter, the insured / claimant had enclosed the survey report.
302. As it has already been held by me on the basis of evidence on record that Ex.PW.11/B was not sent by DO Calcutta. However this very letter along with Survey Report are part of Claim File. Meaning thereby that the same were filed on record by the insured or by Sanjay Raina who as has been held by me had forged the survey report. As it is apparent that Ex.PW.11/B was directly received by accused G.C.Gupta, it leads to the only inference that there was complicity and nexus, between him and coaccused persons. Accused G.C.Gupta owing to this complicity had facilitated coaccused C.C.No: 35 / 2011 Page No.163 of 181 Judgement in the matter of:-
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persons to submit these forged documents, which he himself had accepted knowing or having reasons to believe the same to be forged documents and made them part of the record for the purposes of processing and approving the claim.
303. Looking at the documents in claim file Ex.
PW3/2 from another angle and considering that the forwarding letter Ex. PW11/B and the enclosed survey report were genuinely sent by Calcutta office to Delhi office, reveals another discrepancy, which accused G.C.Gupta, had he not involved with other coaccused, should have noticed.
304. The survey report which is on the Claim File Ex.PW.3/2, reveals that it contains an endorsement from the said surveyor "This report is issued only for the consideration of the insurer and their legal representatives". Meaning thereby that this report or its copy was not given by the alleged surveyor to the insured / claimant or even the consignee ie. M/s C.C.No: 35 / 2011 Page No.164 of 181 Judgement in the matter of:-
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Luxmi Electrical Company (nonexistent). That being the situation, by no stretch of imagination, this report or copy thereof, could have been in possession of the insured / claimant at the time of filing of his claim on 04.05.1998 as for the first time vide Ex.PW.11/B, this report could have been received in the office of DOXXIII NIC only on 08.05.1998, as per the endorsement of accused G.C.Gupta.
305. Had G.C.Gupta been vigilant then, he would have taken note of this discrepancy / fact at that stage itself and would have saved NIC from the wrongful loss. But he failed to take note of the same for obvious reasons.
306. Apart from above, it is clear from the letter Ex.PW.11/C for lodging claim by the claimant / insured dated 04.05.1998, that the same was also directly received by accused G.C.Gupta on 12.05.1998. Accused G.C.Gupta vide his endorsement at Point A on 12.05.1998 had asked for damage C.C.No: 35 / 2011 Page No.165 of 181 Judgement in the matter of:-
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certificate,besides asking for claim form,bill& other documents.
Meaning thereby that on this endorsement of G.C.Gupta, the office must have taken sometime to report to the claimant / insured asking him to furnish the desired documents.
307. It is however apparent that claimant / insured M/s Amit Industries vide their letter dated 12.05.1998 itself, which is at Page No.4 of the Claim File, had enclosed the damage certificate from the carrier and also the claim form. As if claimant / insured was sitting right next to G.C.Gupta and submitted the desired documents, then and there. Had the claimant / insured got the damage certificate prior to 04.05.1998, then they could have enclosed the same with their earlier letter Ex.PW.11/C. But that was not the case. Had accused G.C.Gupta been vigilant in scrutinizing the documents, then he would have smelt something wrong in this act of the insured / claimant. But G.C.Gupta overlooked these discrepancies for obvious reasons which goes on to establish his C.C.No: 35 / 2011 Page No.166 of 181 Judgement in the matter of:-
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complicity and nexus with the private persons. Accused G.C.Gupta conducted himself in such a manner so as to facilitate the coaccused persons, to bring on record the documents just for the sake of completion of the records.
308. Apart from the above, acts of commission and omission on the part of public servant G.C.Gupta, it is apparent that all correspondence right from the alleged intimation letter Ex.PW.11/B from Calcutta Office to DO23, along with its annexures, the claim lodged by the insured Ex.PW.11/C as well as letter dated 12.05.1998 of the claimant which is at Page No.4 of the Claim File Ex.PW.3/2, which though in ordinary course should have been received by the Insurance company in its office, from where the same should have been put up before accused G.C.Gupta, who was the senior officer. However, evidence on record reveals that all these correspondences were directly received by accused G.C.Gupta in his office at National Insurance Company, Delhi.
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309. No doubt PW3, PW4 & PW6 during the course of their cross examination had admitted that there is no irregularity in directly receiving a dak by Incharge / Senior officer heading the branch. But this process should have been an exception. In the present case, all these correspondence directly landed in the hands of accused public servant, who then had given definite instructions to their subordinate officers for processing them. This leads to establish an important link between the accused public servant and their co conspirators i.e. private persons.
310. Apart from above, accused G.C.Gupta by accepting the recovery of Rs.20,144/ vide Ex.PW.3/D3 of the recovery agent ie. coaccused Rakesh Mudgil, which was deposited vide voucher at Page No.20 of Claim File Ex.PW.3/2, without confirming as to whether it has come from the transporter / carrier or not, closed the file by putting the final C.C.No: 35 / 2011 Page No.168 of 181 Judgement in the matter of:-
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nail in the coffin of the present case, probably with the hope and intention that noone will get to know of what transpired between him as officer of National Insurance Company and the coconspirators which led to passing of this claim.
311. As responsible officer of National Insurance Company, it was expected of him being obligatory on his part, to have acted in the best interest of the company. But that was not to be. He not only obviated what basic standard of care and caution he was expected to adopt while performing his official duties. Rather, he facilitated his coconspirators to cheat the Insurance Company by causing wrongful loss to it.
312. Had there been no involvement of the accused public servant, then the "rule of prudence" demand that he should have scrutinized the documents / letters sought to be placed on record in support of the claim by the claimant, which C.C.No: 35 / 2011 Page No.169 of 181 Judgement in the matter of:-
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would have saved National Insurance Company from the wrongful loss.
313. But that was not to be.
314. This has brought me down to the next contention urged on behalf of accused public servant by Ld.Defence Counsels, that the investigating agency had been unfair and adopted "Pick and Choose Policy" to falsely implicate accused G.C.Gupta and exonerating other similarly situated officers.
315. Need of fair, honest, efficient and thorough filed investigations is the single most important factor which directly determines the fulfillment of the object for which various provisions of P.C.Act were brought on the Statute Book.
Investigations lays the foundation on which arch of trial is erected. An important link, if missed by the investigating C.C.No: 35 / 2011 Page No.170 of 181 Judgement in the matter of:-
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agency and if detected late, leads to crumbling of this arch.
Therefore, the investigating agency while performing its duty, needs to be vigilant so as to collect all material and relevant evidence linked with the case.
316. An important link, if missed, could lead to hazardous results as time and resources spent on trial becomes irretrievable. Whether such evidence or link did not exist or intentionally skipped by the investigating agency, however is required to be looked into. For that, I have considered the entire prosecution evidence, more particularly the deposition of three officers of the vigilance team of NIC and the report which formed the basis of complaint filed with CBI by PW K.Mahapatra. I have also considered the deposition of both the Investigating officers.
There was no evidence against the other officers of NIC, who as per Ld.Defence Counsels for accused public servant, have performed similar roles.
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317. From the evidence which has come up on record as discussed hereinabove, prosecution has been able to establish nexus between the accused public servant only and his coconspirator private persons. I do not see from material on record that the investigating agency had intentionally skipped evidence against other officers of NIC.
Therefore, this contention of Ld.Defence Counsels that investigating agency had conducted the investigations in an unfair manner adopting "Pick and chose Policy" is turned down.
318. The evidence led on record by prosecution has proved that there was a conspiracy amongst accused G.C.Gupta, Trilochan Singh Bedi, Sanjay Raina and Rakesh Mudgil, in furtherance of which, each one of them had performed their respective roles, so as to achieve its ultimate object.
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319. Sh.C.L.Gupta, Advocate, Ld.Defence Counsel relying upon the defence witness examined by them ie. DW2 Om Prakash, had contended that even the investigating agency during house search of accused G.C.Gupta did not find anything incriminating. He contended that the documents taken into possession during his house search were returned to the accused. Ld.Defence Counsel further augmented this contention of his, that accused G.C.Gupta has not criminally misconducted himself, by relying upon the deposition of other defence witness examined by them viz. DW1 A.K.Goel, to prove that his suspension order was revoked and he has been reinstated.
320. I have considered these contentions of Ld.Defence Counsel and have perused the defence evidence led on record. Merely because during house search of accused G.C.Gupta, investigating agency did not find documents worth C.C.No: 35 / 2011 Page No.173 of 181 Judgement in the matter of:-
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relying to prove its case, does not by any way rules out the importance of the documentary evidence which has been relied upon and proved by the prosecution against accused.
Further, merely because his department has revoked the suspension and reinstated the accused does not exonerates the accused from the criminal liability, if established on the basis of settled principles of adjudication of Criminal Justice System.
321. In view thereof, I do not find any merits in this contention of Ld.Defence Counsel to exonerate accused G.C.Gupta on the basis of deposition of these two defence witnesses examined by them. The same is accordingly turned down.
322. Last contention urged on behalf of the accused public servant, was that his actions and inactions C.C.No: 35 / 2011 Page No.174 of 181 Judgement in the matter of:-
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does not constitute the offence under Prevention of Corruption Act as the same at best, can amount to misconduct. It is contended that this misconduct, by no stretch of imagination, can be termed as "criminal".
323. The word "misconduct" has been defined in Black's Law Dictionary, which reads as under : "The transgression of some established rule of action, dereliction from duty, unlawful behaviour, improper or wrong behaviour".
324. The term "misconduct" implies wrong intention and not a mere error of judgement. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or Statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, C.C.No: 35 / 2011 Page No.175 of 181 Judgement in the matter of:-
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misconduct means a transgression of some established and definite rule of action.
325. Section 13(1) (d) of the Prevention of Corruption Act, does not make any negligence or a plain and simple misconduct on the part of any public servant, a punishable offence. Hon'ble Apex Court in a catena of judgement while interpreting the provisions of this Act has laid down that a blatant carelessness or gross negligence on the part of any public servant, does not ipsofacto, comes within the domain of this Section. The alleged misconduct on the part of public servant has to be actuated with criminal intent. The abuse of his position as a public servant in order to come within the mischief of the section must necessarily be dishonest intention on the part of said officer qua the alleged act.
326. The burden to prove affirmatively that accused by abusing his official position had obtained any pecuniary C.C.No: 35 / 2011 Page No.176 of 181 Judgement in the matter of:-
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advantage either for himself or for any other person, lies on the prosecution. The prosecution on the basis of evidence led by it on record, has to satisfy the principal that all inculpatory facts, established on record must be inconsistent with the innocence of the accused and incapable of explanation of any other hypothesis than that of his guilt.
327. In the backdrop of above, the analysis of evidence adduced by the prosecution during the course of trial, and observed by me hereinabove, in my considered opinion has led to an unerring certainty that accused G.C.Gupta being public servant, acting inconcert with other accused persons, had abused his official position as such and facilitated co accused Trilochan Singh Bedi, Proprietor of M/s Amit Industries, the claimant, to get wrongful pecuniary advantage, by passing a claim on the basis of false and forged documents with aid and assistance of accused Sanjay Raina and Rakesh Mudgil, thereby causing wrongful loss to NIC. C.C.No: 35 / 2011 Page No.177 of 181
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328. These actions and omissions of his, is nothing short of "criminal misconduct" as the same is laden with a dishonest intention, with which he had acted while dealing with the Claim file Ex.PW.3/2 and passing and releasing a claim amounting to Rs.2,87,775/ in favor of M/s Amit Industries. His actions have clearly transgressed plain and simple misconduct and entered in the contours of "criminal misconduct".
329. Consequently, from the material placed and proved on record by the prosecution, it is established that there was prior meeting of minds amongst all the accused persons, who acting inconcert had hatched a conspiracy, the object of which was to obtain a Marine Claim in favor of M/s Amit Industries, on the basis of false and forged documents. Prosecution has been able to establish on record that all the C.C.No: 35 / 2011 Page No.178 of 181 Judgement in the matter of:-
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accused had performed their assigned roles of commissions and omissions, in the process of achieving the object of conspiracy. Had there been no prior meeting of minds, then the accused persons would not have conducted themselves, the way they have, as held by me hereinabove.
330. In view thereof, I do not find any merits in the contentions advanced by Ld.Counsels for the accused persons that the material on record is not sufficient to infer that there was no meeting of mind amongst the accused persons to carry out any illegal design.
331. The cumulative effect of the facts established on record by the prosecution which are inconsistent with the innocence of the accused persons and incapable of any explanation or any loopholes, other than guilt of the accused G.C.Gupta, Trilochan Singh Bedi, Sanjay Raina and Rakesh Mudgil, I am of the considered opinion that C.C.No: 35 / 2011 Page No.179 of 181 Judgement in the matter of:-
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apart from the offence of commission of criminal conspiracy to commit offences, the same are sufficient for proving substantive offences of criminal misconduct, cheating ; forgery and submission of forged documents as genuine.
332. In view thereof , I proceed to dispose off the present case as under: F I N A L V E R D I C T :
333. Having regards to the facts and circumstances and the discussions as delineated hereinabove:
(a) Accused G.C.Gupta, Trilochan Sigh Bedi, Sanjay Raina and Rakesh Mudgil, stands convicted for offences punishable under section 120B r/w section 420, 468 and 471 I.P.C, read with section 13(1)(d) & 13(2) of Prevention of Corruption Act.
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(b) Accused G.C.Gupta also stands convicted for substantive offences under section 13(1)(d) read with section 13(2) of Prevention of Corruption Act.
(c) Accused Trilochan Singh Bedi also stands convicted for substantive offence under section 420 and 471 IPC.
(d) Accused Sanjay Raina also stands convicted for substantive offence under section 468 IPC.
(e) Accused Rakesh Mudgil also stands convicted for substantive offence under section 420 IPC.
334. Let all the convicts be heard on the point of sentence.
Announced in the Open Court th On the 16 Day of October, 2014.
(KANWALJEET ARORA) SPECIAL JUDGE : C.B.I. (P.C.ACT) DWARKA COURTS, NEW DELHI.
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