Delhi District Court
Sh. E.V. Jothi vs Cbi on 3 May, 2018
Criminal Appeal Nos.312/2016 & 313/2016
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Appeal Nos. : 312/2016 & 313/2016
Under Section : 120B read with Section 420/468/471 IPC
FIR No. : RC-3/E/95/EOW-I
CNR Nos. : DLET01-013526-2016 &
DLET01-013525-2016
1 In the matter of Criminal Appeal No.312/2016 :-
SH. E.V. Jothi
S/o. Sh. Vijayan,
R/o. 88, ARCOT Road, G-B, Block No.5,
Santhi Towers Vadepalani Chennai, Tamil Nadu.
............APPELLANT
VERSUS
CBI ........RESPONDENT
Date of Institution : 16.11.2016
Date of reserving judgment : 21.04.2018
Date of pronouncement : 03.05.2018
Decision : Appeal is allowed.
AND
2 In the matter of Criminal Appeal No.313/2016 :-
SH. K.G. DHANANJAYAN
S/o. Late Ganeshan,
R/o. 9/71, Amarath, Trichur District, Kerala.
............APPELLANT
VERSUS
CBI ........RESPONDENT
Date of Institution : 16.11.2016
Date of reserving judgment : 21.04.2018
Date of pronouncement : 03.05.2018
Decision : Appeal is allowed.
Page 1 of 38 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi
Criminal Appeal Nos.312/2016 & 313/2016
COMMON JUDGMENT
1. Vide this common judgment, I shall decide two appeals, which have been preferred against the same judgment of conviction dated 14.10.2016 and order on sentence dated 15.10.2016, passed by CMM (East) in a case titled as CBI v. Mr. K.G. Dhananjayan & Anr., bearing RC-3/E/95/EOW-I, under Section 120B/420/468/471 IPC. Vide impugned judgment of conviction dated 14.10.2016, CMM (East) convicted accused Mr. K.G. Dhananjayan and Mr. E.V. Jothi (appellants herein) for offences punishable under Section 420/468 and 471 IPC individually and with the aid of Section 120-B/34 IPC as well. They were also convicted for offence under Section 120B IPC. Vide impugned order on sentence dated 15.10.2016, CMM (East) sentenced both convicts in following manner :-
● For offence punishable under Section 420 IPC, convict K.G. Dhananjayan was sentenced to undergo simple imprisonment for a period of seven years and to pay fine of Rs.5000/-. While convict E.V. Jothi was sentenced to undergo simple imprisonment for a period of five years and to pay a fine of Rs.5000/-. In default of payment of fine, both convicts were sentenced to undergo simple imprisonment for one month.
● For offence punishable under Section 468 IPC, both convicts were sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs.10,000/- each. In default of payment of fine, both were sentenced to undergo simple imprisonment for two months.
● For offence punishable under Section 471 IPC, both convicts were sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.5000/- each. In default of payment Page 2 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 of fine, both convicts were sentenced to undergo simple imprisonment for one month.
● For offence punishable under Section 120B IPC, both convicts were sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.5000/- each. In default of payment of fine, both convicts were sentenced to undergo simple imprisonment for a period of one month.
2. Vide impugned order on sentence dated 15.10.2016, CMM (East) also passed order on compensation against both these appellants apart from passing order on sentence for aforesaid offences. CMM (East) directed both appellants to pay Rs.50 lac to CBI as per Section 357(1) Cr.P.C out of total compensation amount of Rs.10,77,55,200/-
and remaining amount was to be paid within 30 days to M/s. Saleh Brothers, Zahedan, Iran or its partners or legal heirs of the then partners of the said firm during the period when the transaction in question took place. Both the convicts were also directed to pay equally the half of the abovesaid compensation amount. In default of payment of said amount, both convicts were to undergo simple imprisonment for a period of two years each.
BRIEF FACTS OF THIS CASE :-
3. Briefly stated, prosecution was launched against appellants with allegations that a complaint was filed by Deputy General of Foreign Trade stating therein that during the period 1993-94, appellant Mr. K.G. Djananjayan and Mr. E.V. Jothi entered into a criminal conspiracy in order to cheat M/s. Saleh Brothers, Zahedan, Iran (exporters) by importing 2138 MTS of wet dates through various shipments at Bombay and Calicut Ports. They entered into an agreement dated 22.03.1994 with M/s. Saleh Brothers through its Page 3 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 partners Sh. Nabi Baksh Salehji and Sh. Hazi Mohd. Afzal, on the basis of a forged and fabricated partnership deed dated 21.10.1993, whereby they represented themselves as partner of a firm namely Maximax Impex, B-86, Lajpat Nagar, New Delhi. In the forged partnership deed, they projected themselves to be partner of the firm Maxima Impex by dropping name of two original partners namely Sh.
K.P. Naeem and Smt. Noor Jahan and after receiving the consignments, appellants intentionally did not make payment to the exporter. Appellants issued three cheques to M/s. Saleh Brothers, but all three cheques were dishonoured on their presentation. Thus, present case was registered by CBI on the basis of aforesaid allegations.
4. After completion of investigation chargesheet was filed on 03.07.1999 for offences punishable under Section 120B read with Section 420 & 465 IPC and substantive offence under Section 420 & 465 IPC. Thereafter, on 06.06.2003 charges were framed against both accused persons namely K.G. Dhananjayan and E.V. Jothi for offences punishable under Section 120-B IPC read with Section 468/471/420 IPC and 471/420/468 IPC, to which they pleaded not guilty and claimed trial.
5. Prosecution examined 26 witnesses in support of its case. PW1/Sh. Rameshwar Singh Sanghu was notary public. He denied the attestation and his signature and seal on amended/forged partnership deed Ex.PW1/A (Ex.PW1/B and Ex.PW1/C). He further deposed that there was no mention of that particular deed in his register maintained by him, while attesting any document.
6. PW2/Smt. Sagira Khatun was one of the partners in M/s. Maximax Impex. She denied her signature on copy of amended/forged Page 4 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 partnership deed Ex.PW2/A. She deposed that no new partners were inducted in the firm and there were only four partners namely Majid, Noorjahan, Naim and she herself. She further deposed that the business of partnership firm was of meat export and it never changed the business.
7. PW3/Sh. A.K.M. Chakankar was complainant. On the basis of his complaint (Ex.PW3/A), this case was registered. He alleged that M/s. Maximax Impex imported dates from M/s. Saleh Brothers, Iran and the compay failed to pay the remittances and the cheques issued by them were dishonored.
8. PW4/Ms. Nupur Arora proved that M/s. Maximax Impex C-103 held a current account no.310257473 during 1991-94 and as per account opening form, specimen signature card and copy of partnership deed dated 13.09.1991 available with bank, only C.A. Majeed, Sh. K.P. Naeem, Smt. Saghira Khatoon and Smt. Noorjahan were partners of M/s. Maximax Impex. A1 and A2 were never partners of this firm. She further deposed that M/s. Maximax Impex had account in their American Express Bank.
9. PW5/Ms. Neeraj Mahajan proved that D47 is the cheque return memo in respect of cheque no.407911 dated 10.08.1994 for amount of Rs.3.5 crore, vide which cheque was returned due to insufficient fund (Ex.PW5/A). He deposed that cheque return memo was prepared at the behest of Sh. Nabi Baksh Saleh.
10.PW6/Sh. J.D. Raimane proved that Mr. E.V. Jothi (A2) as proprietor of M/s. Maximax Impex operated and maintained a current account bearing no.21050 (Ex.PW6/A1) from 21.03.1994 to 30.09.1995 and the cheque (Mark A and Mark B) were issued on this account in the name of Mr. Nabi Baksh Saleh. He deposed that cheque no.637766 Page 5 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 of Rs.3,74,22,000/- dated 01.07.1994 was issued by M/s. Maximax Impex in favour of Nabi Baksh Saleh. He further deposed that for closing of aforesaid account the pay order sent to the party at the given address was received back with report that party had left given address.
11.PW7/Sh. S.P. Kanan proved that accused E.V. Jothi (A2) held a current account bearing no.32275 in the name of Federation of Indian Farmers Association, but on account of nominal balance in the same, cheque of Rs.3.56 crore issued in favour of Mr. Saleh was dishonored.
12.PW8/Dr. C.A. Majeed was partner of original firm, who was examined by Chief Judicial Magistrate, Ernakulam. He was declared hostile by CBI as he did not remember the facts nor did he identify his signature consistently.
13.PW9/Sh. S.C. Garg proved that M/s. Maximax Impex was not registered firm and had no separate legal entity.
14.PW10/Sh. N. Chockalingam proved that K.G. Dhananjayan (A2) introduced NRE A/c 85383 opened on 09.05.1994 by Sh. Nabi Baksh with their bank, but said account was inoperative since beginning till date. He further deposed that cheque no.407911 was signed by K.G. Dhananjayan (A1) for Federation of Indian Farmer Association.
15.PW11/Sh. M.C. Joshi (expert from CFSL) had examined all the relevant documents and gave his opinion on the basis of documents and signature submitted by CBI. He gave five opinions regarding signature of accused K.G. Dhananjayan (A1).
16.PW12/ Sh. Ekeshwar Kutty proved that dates were imported from Iran and accused took out the dates from custom house, Calicut and signed on the back of bill on behalf of partners of M/s. Maximax Page 6 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 Impex.
17.PW13/ Sh. Sabu was typist in the office of M/s. Maximax Impex. He identified accused K.G. Dhananjayan (A1), who used to visit the office to meet other partners such as Hari Neendoor. Hari Neendoor was officiating said office of M/s Maximax Impex. He deposed that Mr. Naeem and Mr. Majid were partners in the firm.
18.PW14/Sh. Atmaram was proprietor of M/s. Deepak Trading Company. He deposed that he purchased wet dates from M/s. Maximax Impax during 1994 against payment through two cheques drawn on Dena Bank. He proved original purchase bills issued by accused E.V. Jothi (A2).
19.PW15/Smt. Lajshyam Sunder Peshwani was notary public. She proved an agreement dated 22.03.1994 (Ex.PW15/A) executed between M/s. Maximax Impax and M/s. Saleh Brothers. She had signed the same in the capacity of notary public.
20.PW16/Sh. Chandu Ramchand Hirani proved document D87. He deposed that an agreement was executed between Nabi Baksh Saleh and accused. He was advocate, who established identity of the executants of D87, but could not identify accused in court due to lapse of time.
21.PW17/Sh. Haji Ahmed Juneja was Attorney Holder in M/s. Imam Trading Company, Bombay. He deposed that this company had purchased the imported wet dates from accused E.V. Jothi of M/s. Maximax Impax during March-April 1994 against payment made by means of cheque.
22.PW18/Sh. Paul Kurian proved that Mr. Ali Shah Baksh stayed in his hotel at Calicut, Kerala, during July to September 1994 and hotel bills Page 7 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 were paid by a person namely Mr. Raja Mani of M/s. Mithu Company.
23.PW19/Mohd. Saqhy proved that accused K.G. Dhananjayan (A1) came to his house, who brought some bags and kept the same in his premises. He allowed A1 to stay at his premises situated at Meena Bagh, New Delhi, till he got accommodation elsewhere. This address was used by accused A1 in his account opening form before bank.
24.PW20/Sh. Narender Ashar was one of the partners in M/s. Arun Kumar and Brothers, who had purchased wet dates from M/s. Maximax Impex and paid them through various cheques.
25.PW21/ Sh. Jai Prakash Tulsi Ram Lahoti was partner in Renuka Shipping Agency. He proved that Mr. E.V. Jothi used to come to his office regarding clearance of imported wet dates in the name of M/s. Maximax Impex. After receipt of document from Mr. Jothi, the imported wet dates were got cleared through custom by his agency. He proved his signature on the seized/certified true copies of the relevant bills of entry evidencing import of wet dates in the name of A1 and A2. He correctly identified A2 in the court.
26.PW22/Sh. Ashok Shinde was one of the partners of M/s. Renuka Shipping Agency. He proved that Mr. E.V. Jothi handed over his agency all the relevant documents along with the request letter for clearance of imported wet dates through custom. He also proved certified true copies of relevant invoices, letter, shipping bills. He further identified Mr. E.V. Jothi (A2) who used to come to his office regarding clearance of wet dates. He further stated that accused Mr. E.V. Jothi was introduced to him by Sh. Mohendra Bhuta. He also idenitied accused K.G. Dhananjayan (A1).
27.PW23/Sh. Anurag Bakshi was appraiser in Customs Department at Page 8 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 Bombay. He proved seized bills of entry passed/signed by him in respect of import of the wet dates from M/s. Saleh Brothers, Iran by Mr. E.V. Jothi of M/s. Maximax Impex, Mumbai, New Delhi and submitted for clearance through M/s. Renuka Shipping Agency, Mumbai during the period 04.03.1994 to 14.09.1994.
28.PW24/Sh. R.K. Tiwari was IO of this case, who had conducted investigation in the present case. He filed FIR Ex.PW24/A. He recorded statement of many witnesses at different places and also seized numerous document related to the case.
29.PW25/Ms. Rekha Sangwan was CBI Inspector, who prepared challan against both accused persons and filed the same before trial court.
30.PW26/Sh. Rajender Prasad had registered this case bearing RC No.3(E)/95/EOU on 07.09.1995 under Section 120B read with Section 420 IPC against accused K.G. Dhananjayan and E.V. Jothi. Both were purported partners of M/s. Maximax Impex, Delhi. He recorded statement of complainant Sh. Navi Baksh Saleh in Tehran.
31.After closing the prosecution evidence, statement of both accused persons were recorded under Section 313 Cr.P.C on 19.02.2015. They opted to lead evidence in their defence. Mr. Gopal Krishnan was examined as DW1 and defence evidence was closed vide order dated on 10.09.2015 and matter was fixed for final arguments.
32.After appreciating the evidence on record, trial court convicted Mr. K.G. Dhananjayan and Mr. E.V. Jothi (appellants herein) on 14.10.2016 and passed order on sentence dated 15.10.2016, accordingly.
COMMON GROUNDS : -
33.Being aggrieved of the impugned judgment of conviction and order Page 9 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 on sentence, both appellants have preferred separate appeal on the following relevant grounds :-
● That trial court overlooked most glaring defect in the case of prosecution that prosecution failed to examine complainant Sh. Nabi Baksh Saleji, who was cited as a prosecution witness in chargesheet at serial no.1 and who was the most material witness to prove the allegation of cheating. His statement under Section 161 Cr.P.C was recorded by PW26 in Tehran, Iran. There is no other cogent evidence available with prosecution to bring home the charge of cheating against accused persons.
● That trial court acknowledged the void created due to non examination of complainant, but instead of giving benefit thereof to the accused persons, it proceeded to convict the accused persons only on the basis of two facts. First was that the accused imported wet dates from complainant and second, that accused had not paid the entire sale consideration towards the wet dates. The complainant was the only witness who could have supported the prosecution's case as regards the existence of mens rea, but failure of prosecution to examine this witness demolished the edifice of its case against the accused persons. ● That trial court failed to consider another material fact that as per invoices (document D13 in the chargesheet), firm of complainant had supplied only 747 MTs of wet dates to accused persons in seven shipments vide documents D13(a) to (f), (h) and (p) in the chargesheet. Trial court ignored the fact that apart from complainant's firm, there were two more exporters namely Jalal Shahnvazi Taj and Haji Ajzal Shahbaghsh (exporter from Karachi, Pakistan), who supplied a quantity of 564 MTs and 802 MTs of Page 10 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 wet dates, respectively. Neither said two exporters have filed any complaint against acused persons nor have they been examined by prosecution to verify the veracity of aforesaid sale invoices. ● That trial court failed to appreciate that agreement dated 22.03.1994 (Ex.PW11/A1) only provided that complainant's firm would supply 350-2000 MTs of wet dates to accused persons and did not mention the specific quantity of wet dates to be supplied to accused persons. Trial court failed to appreciate that though said agreement was executed on 22.03.1994, as per invoices (D13), a quantity of 300 MTs of wet dates had already been supplied much before on 18.01.1994. Complainant's firm supplied only 447 MTs of wet dates to accused persons under agreement dated 22.03.1994 and not 2138 MTs as claimed by prosecution and accepted by trial court.
● That trial court failed to appreciate that even bills of entry (D12) did not support the prosecution's case that complainant's had supplied a quantity of 2138 MTs of wet dates to accused persons. ● That trial court failed to appreciate that there was a dispute as to the rate at which the wet dates had been imported i.e. whether the rate was 100 USD or 500 USD per MT? The bills of lading and invoices clearly mention the rate to be 100 USD per MT. Even the custom officials (PW12 and PW22) categorically testified that none of the consignments were undervalued and were correctly valued at 100 USD per MT.
● That trial court failed to appreciate that two cheques i.e. cheque no.953334 dated 10.05.1994 for Rs.2,39,00,000/- and cheque no.637766 dated 01.07.1994 for Rs.3,74,22,000/- were issued by accused no.2 in favour of complainant's firm on behalf of Page 11 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 partnership firm M/s. Maximax Impex. The third cheque bearing no.407911 dated 10.08.1994 for Rs.3,56,00,000/- was issued by accused no.1 on behalf of Federation of Indian Farmers Association as security towards advance payments for future business transaction between complainant and accused persons and not towards the payment of wet dates already imported by accused persons.
● That trial court failed to appreciate that PW6 had categoricaly admitted that no cheque returning memo was prepared regarding aforesaid two cheques i.e. cheque no.953334 and 637766. Trial court failed to appreciate that aforesaid two cheques were never presented in the said bank as they were never issued towards any outstanding payment for imported wet dates. The allegations of insufficiency of money in the bank account of accused no.2 has no bearing on merits of the case as said two cheques had been issued only as security for future business and there was no existing liability on accused no.1 to honor those cheques. ● That trial court failed to appreciate that complainant's firm had supplied 747 MTs of wet dates from 18.01.1994 to 18.05.1994 in seven shipments and was duly paid for all the shipments in cash, while complainant was staying in India. On the same line, DW1 deposed that entire amount was paid in cash to the partner of M/s. Saleh Brothers in India. No complaint was ever made by complainant or any other person while in India. It was only after going back to Iran, complainant made a false complaint claiming an exaggerated sum of Rs.12 lac USD calculated at 500 USD per MT for an imaginary quantity of 2240 MTs of wet dates, which quantity was never supplied by complainant to accused persons.
Page 12 of 38 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 ● That trial court erred in inferring the commission of offence of cheating by accused persons, considering the glaring inconsistencies and contradictions in the case of prosecution regarding quantity of wet dates supplied by complainant's firm, admitted and unexplained stay of complainant in India and his travel in India with accused persons in the year 1994, his stay at different hotels in Bombay and Calicut and non-presentation of two out of three cheques by complainant.
● That trial court failed to appreciate that even assuming the allegations of prosecution to be true, the present case at best constitutes a civil dispute between complainant and accused persons, which by no stretch of imagination could be given a criminal angle.
● That the purpose for which the alleged cheques were given to complainant makes all the differences in ascertaining whether accused persons had intention to cheat complainant or whether a genuine business dispute existed between the parties. By negating this aspect, trial court completely overlooked that the edifice of the prosecution's case is shaken and the guilt of the accused persons could not be established without reference to the intention with which the alleged cheques in question were given to complainant.
Grounds as regards the offence of forgery for the purpose of cheating (Section 468 IPC) and using as genuine a forged document or electronic record (Section 471) :-
● That trial court failed to appreciate that all four witnesses i.e. PW1/ Mr. Rameshwar Singh Sangu, PW2/Smt. Sagira Khatoon, PW8/Mr. C.A. Majeed and PW11/Mr. M.C. Joshi were examined Page 13 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 by prosecution to prove charge of forgery against accused, have completely failed to discharge the onus of proof on prosecution as they have failed to prove the fact that amended partnership deed dated 21.10.1993 (Ex.PW1/A) is a forged document and same has been forged by accused persons.
● That trial court did not appreciate the evidence given by above mentioned witnesses in proper perspective. It wrongly relied on the shaky and unreliable evidence of PW1 and PW2 while totally ignoring the testimony of PW8 and PW11, later being the best evidence available with prosecution to bring home the charge of forgery against accused persons.
● That trial court failed to appreciate that the expert evidence of forensic/handwriting expert was best evidence available with prosecution to bring home the charge of forgery. However, the expert witness admittedly gave an inconclusive report and did not offer any substantive opinion on the questioned signatures and did not implicate the accused persons in any manner for the charge of forgery.
● That trial court also erred in relying on the testimony of PW2 for holding accused persons guilty of the offence of forgery. PW2 was one of the continuing partners and signatories to the amended partnership deed, though she denied signing the same. Admittedly, this witness had no knowledge whatsoever of the activities of the partnership firm. PW2 admitted that PW8 was managing the partnership firm, hence, it was imperative for PW8 to support the case of prosecution. Testimony of PW2 cannot be relied upon as she was admittedly an illiterate woman and had no knowledge whatsoever of the business of the firm and in fact, Page 14 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 acted on the instructions of her husband (PW8). The signatures of this witness were also sent for forensic examination, but no substantive opinion had been offered by handwriting expert (PW11). Evidence of PW1 and PW2 could not be read in isolation, particularly in view of the lack of evidence of the material witnesses (i.e. PW8 and PW11).
● That trial court failed to appreciate that particularly in view of the fact that PW8 had become hostile, it was imperative for the prosecution to examine aforesaid persons namely Mr. K.P. Naeem, Mr. Hari Nindoor and Mr. E.N. Soman, in order to demolish the veracity of amended partnership deed. In this regard, the settled position of law is reiterated to the extent that non- examination of a material witness certainly raises a suspicion and leads to an adverse inference against the prosecution. ● That trial court in para 23 of impugned judgment erred in relying on the provisions of Section 73 of Indian Evidence Act, 1872 dealing with the ocular examination of the questioned signatures by the presiding officer of the court. Trial court could not have based its decision on its own ocular examination of questioned signatures when the questioned signatures along with the specimen signatures of all signatories had been sent for forensic examination and a report was duly obtained. Once forensic examination was done, the ocular examination and comparison by the presiding officer would lose its relevance and certainly cannot be made the basis for convicting accused.
● That trial court in para 29 of impugned judgment erred in shifting the onus of proof on the accused persons whereas the onus was upon the prosecution to prove beyond doubt that the amended Page 15 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 partnership deed was forged and fabricated and the same had been forged and fabricated at the instance of the accused persons.
● That in any case, the failure of the prosecution to bring home the charge of cheating would automatically absolve the accused persons of the charges of forgery for the purpose of cheating. Grounds as regards the order on sentence :-
● That trial court being a CMM (East) was not empowered to award a sentence beyond seven years by virtue of Section 29(1) of the Code. Hence, trial court has exceeded its jurisdiction while awarding the sentence to the accused persons and therefore, the order on sentence is liable to be set aside. ● That trial court further erred while awarding compensation to the complainant, who never appeared before the court during trial. Trial court also failed to appreciate that complainant never resorted to any civil proceeding against accused persons for recovery of the alleged dues running into crores of rupees. Had there been a grain of truth in the prosecution's case, the complainant would have certainly resorted to civil proceedings against accused persons for recovery of dues. The complainant not having done so, trial court was not justified in awarding compensation to the complainant.
● That without prejudice to the above, it is submitted that trial court erred in awarding compensation at an exaggerated sum calculated at 500 USD per MT for an imaginary quantity of 2240 MTs of wet dates, even though the record shows that the complainant had only supplied a quantity 747 MTs of wet dates to the accused persons and at the rate of 100 USD per MT.Page 16 of 38 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 ARGUMENTS MADE ON BEHALF OF BOTH APPELLANTS :-
34.Ld. counsels for convicts/appellants E.V. Jothi and K.G. Dhananjayan argued that PW11 was handwriting expert, who did not give any opinion on alleged forged document i.e. Mark A (amended partnership deed), which is a photocopy. They further argued that though expert could not be able to give opinion, but ld. CMM gave his own opinion, though he was not expert. Opinion cannot be given on photocopy. Ld. counsels further argued that PW8 was link between complainant and accused. He was well aware of all transactions, but CBI showed as if he did not know anything. There are several communications between complainant and PW8. They further argued that PW1 was not sure if amended partnership deed was notarized by him. There was no entry in any register and his seal was misplaced several times. PW1 is thus, not credible witness.
35.Ld. counsels further argued that PW2 did not sign any deed, but trial court reached wrong conclusion about her. They further argued that PW8 was most important witness wholly unreliable witness. PW8 denied his specimen signature, but proved to be refused to identify his signature. PW8 deposed in respect of alleged forged signature on partnership deed that it was not his signature. PW8 also deposed that he lost his memory. But, trial court only picked one sentence from the testimony of PW8 though he denied everything. Therefore, trial court wrongly relied on one of his statement.
36.Ld. counsels further argued that trial court wrongly placed onus on accused to say that accused did not ask question from PW11, though PW11 did not give any opinion. Therefore, no forgery at all is made out. Ld. counsels further argued that neither two partners who were deleted from alleged forged partnership deed nor any witness to this Page 17 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 deed, were examined by CBI. Ld. counsels further argued that neither Nabi Baksh Saleh nor Haji came into witness box to depose anything about agreement Ex.PW11/A1 dated 22.03.1994 executed between complainant and accused, or about any deception. This agreement was the basis of allegations of cheating. As per this agreement accused had to pay 455 USD. Ld. counsels further argued that photocopy of invoices were not even proved and invoices from different exporters were filed. Same invoices were issued prior to aforesaid agreement.
37.They further argued that even without affording opportunity to accused to cross-examine the complainant, trial court made assumptions against them, while there is no evidence to presume cheating. They further argued that Ex.PW3/B (D83) was filed by De- Jure complainant and the cheques are only photocopies.
38.Per contra, ld. Sr. PP for CBI argued that accused forged amended partnership deed i.e. Mark A/PW1. He further argued that CFSL did not give opinion because the documents were photocopies but trial court was having all the evidences, so it could compare the documents. He further argued that Ms. Sagira Khatun, Sh.
Charammal Abdul Mazid, Sh. K.P. Naeem and A.K. Noorzahan were four partners of Maximax Imports. He further argued that name of Sh. K.P. Naeem and Noorzahan were deleted and name of both accused were added using photocopy of original deed. Thus, forgery was done to show both accused as partner of aforesaid firm, though they were not so. The amended deed was used to enter into agreement dated 22.03.1994. Thus, it was used to give wrong description of firm's partners. Ld. Sr. PP for CBI further argued that there was intention to cheat since beginning. PW2 proved original partnership Page 18 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 deed. Out of intention to cheat, amended/forged deed was submitted to complainant. Since accused did not have big firm, therefore, they used forged deed. Just because Section 138 NI Act was not invoked, it does not mean that there was no cheating. Forged deed was the foundation of agreement with Saleh Brothers, because Saleh Brothers wanted to do business with established firm. He further argued that only photocopy of forged deed was supplied, therefore, CBI could not have proved any original deed. Accused handed over photocopy with his attestation to IO. He further argued that PW19 proved that his address was used by accused, while opening the bank account vide account opening form Ex.PW5/B. Complainant could not be examined as he died. Main complaint of DGFT was duly proved i.e. Ex.PW3/A. He further argued that had there been good intention, then accused would have cleared the cheques. Original deed was prepared for export only and not for import.
39.In rebuttal, ld. counsels for convicts/appellants argued that accused never admitted any particular quantity to be received by them. No documents were duly proved. None of invoices were proved. No order was passed to delete name of complainant on the basis of his death. It was only so stated in the arguments. They further argued that no permission was taken to take specimen of accused. Complainant deliberately did not come to the court, because he was also fraud and it was so observed by ld. MM on 06.06.2003. Agreement etc. were not proved by calling relevant witness. They further argued that all three cheques were not placed and proved on record and same were blank, when they were taken from accused. Since, complainant did not come to witness box, therefore, such suggestion and stand could not be taken in evidence. Ld. counsels Page 19 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 for convicts further argued that complainant was examined under Section 161 Cr.P.C, but even original cheques were not taken or seized.
40.Ld. counsel for convict/appellant E.V. Jothi relied upon certain judgments in support of her contentions, which are as follows :-
● Govindaraju @ Govinda v. State of Sriramapuram P.S. & Anr. (2012) 4 SCC 722.
● Thakaji Hiraji v. Thakore Kubersing Chamansing & Ors. (2001) 6 SCC 145.
● J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730. ● Bhagirath v. State of Madhya Pradesh, (1976) 1 SCC 20. ● S.D. Soni v. State of Gujarat, 1992 Supp. (1) SCC 567. ● Sangeetaben Mahendrabhai Patel v. State of Gujarat & Anr. (2012) 7 SCC 621.
41.Ld. counsel for convict/appellant K.G. Dhananjayan relied upon certain judgments in support of his contentions, which are as follows :-
● Thakaji Hiraji v. Thakore Kubersing Chamansing & Ors. (2001) 6 SCC 145.
● Govindaraju @ Govinda v. State of Sriramapuram P.S. & Anr. (2012) 4 SCC 722.
● V.Y. Jose v. State, (2009) 3 SCC 78.
● State of U.P. v. Ashok Dixit & Anr., 2000 SCC (Cri) 579. APPRECIATION OF EVIDENCE AND ARGUMENTS AS WELL AS FINDINGS :-
42.Before I analyse the evidence on record, it is relevant to reproduce the actual charges framed against both the appellants, which are as under :-
"Firstly, that on or before 21.10.1993 at Delhi both of you entered into a criminal conspiracy to prepare a forged partnership deed dated 21.10.1993 of M/s. Maximax Impax and to show both of you as partners and Mr. C.A. Majeet and Smt. Sagira Khatoon were the original partners of M/s. Maximax Impex and at no point of time they had Page 20 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 consented to use their firm name i.e. M/s. Maximax Impex and both of you with the object to cheat M/s. Saleh Brothers, Zahidan (Iran) and thus, both of you committed offence punishable U/s. 120B read with Section 468, 471 and 420 IPC and within my cognizance.
Secondly, on 21.10.1993 at Delhi you used the forged partnership deed dated 21.10.1993 of M/s. Maximax Impex and on the basis of the same, you entered into an agreement with M/s. Saleh Brothers and thus you used the forged partnership deed in furtherance of the common intention and thus, both of you committed offence punishable u/s. 471 IPC and within my cognizance.
Thirdly, on 21.10.1993 both of you entered into an agreement dated 22.03.1994 with Sh. Nabi Baksh Salehji and others of M/s. Saleh Brothers to import 2240 MTs of wet dates at the rate of US $ 500 per MTs although you have never intended to make the payment and under false inducement and in pursuance of the conspiracy you received total 2138 MTs of wet dates through various shipment at Bombay and Calicut ports during the year 1993-94 and towards the payment of wet dates and advance payment, you issued cheque no.95334 (should be 953334) dated 10.05.1994 for a sum of Rs.2,39,00,000/-, drawn on Bank of India, Mandvi Branch, Bombay; cheque no.637766 dated 01.07.1994 for a sum of Rs.3,74,22,000/- drawn on Bank of India, Mandvi Branch, Bombay, and cheque no.407911 dated 10.08.1994 for amount of Rs.3,56,00,000/- drawn on Bank of Madura Ltd. totalling for a sum of Rs.9,69,22,000/- and said cheques were dishonored due to insufficient balance and you have deliberately given the cheques because you did not intend to make the payment and that is why you made the payment in crores of advance also through the cheques and thus both of you committed offence of cheating punishable u/s. 420 IPC and within my cognizance.
Fourthly, that you E.V. Jothy at Delhi prepared the cheque no.95334 (should be 953334) dated 10.05.1994 for a sum Page 21 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 of Rs.2,39,00,000/- drawn on Bank of India, Mandvi Branch; cheque no.637766 dated 01.07.1994 for an amount of Rs.3,74,22,000/- drawn on Bank of India, Mandvi Branch, Delhi and you signed both the cheques showing yourself to be the proprietor of M/s. Maximax Impex knowing fully well that you were neither the prop. of M/s. Maximax nor you were the partner of M/s. Maximax Impex in order to cheat the complainant M/s. Saleh Brothers, Zahidan (Iran) and thus, you forged the cheque and thus, you committed offence punishable u/s. 468 IPC and within my cognizance.
Fifthly, that you K.G. Dhananjayan, at Delhi prepared the cheque no.407911 dated 10.08.1994 for a sum of Rs.3,56,00,000/- drawn on Bank of Madura Ltd. and you signed the cheque showing yourself to be the prop. Of M/s. Maximax Impex knowing fully well that you were neither the pro. of Maximax Impex nor you were the partner of M/s. Maximax Impex Ltd. in order to cheat the complainant M/s. Saleh Brothers, Zahidan (Iran) and thus, you forged the cheque and thus you committed offence punishable u/s. 468 IPC and within my cognizance."
43.Trial court referred to and relied upon following circumstances to infer existence of conspiracy between both accused person i.e. both appellants herein :-
"a) The bank account was opened in Bank of India by accused Jothi only one day before entering into the agreement deed dated 22.03.1994.
b) The accused Jothi opened the account in the Bank of India in the name of Maximax Impex as a "proprietor"
and not as partner.
c) The PW-14 Sh. Atma Ram also denied that he ever stood as guarantor/introducer of the said account of Bank of India and he deposed that his stamp was forged and used on the account opening form of the said bank.
Page 22 of 38 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016
d) The address given in the said account was also not found correct in view of the evidence of concerned bank official, namely, PW-6 J. D. Raimane.
e) Accused persons dealt with large scale of transactions in the year 1994 in crores of rupees but surprisingly they did not maintain any permanent office.
f) Various addresses given by the accused persons pertain to other persons e.g. C103, Dayanand Colony, Lajpat Nagar, New Delhi and 3 Meena Bagh, Maulana Azad Road, New Delhi.
g) Although there is no requirement under law that a partnership firm should compulsorily be registered yet this court can take into account the fact that in ordinary course of business when a firm deals in business of crores of rupees and that too with foreign party, it should run its business in more transparent manner by doing proper documentation which includes registration of firm.
h) The amended partnership deed has already been held a forged document and this fact strengthens the case of the prosecution for proving cheating.
i) As per Smt. Khatoon, the business of the firm M/s Maximax Impex was of meat products but the accused persons dealt with wet dates and they did not ever inform the other original partners of the firm.
j) Even the original partner Smt. Sagira Khatoon specifically denied execution of amended partnership deed or inclusion or exclusion of any partner or any amendment of the said deed.
k) The agreement dated 22.03.1994 was entered in the name of only two partners, i.e. accused persons without including or informing the two other patterns.
l) It is also a dishonest act on the part of the accused persons that they had incorporated a clause in the Page 23 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 agreement dated 22.03.1994 that the firm M/s. Maximax Impex will be liable for all acts without even taking consent of other two partners.
m) The accused persons were not fair in their dealings with the exporters since the cheques were given under different capacity and not as partners of M/s Maximax Impex company.
n) The accused K. G. Dhananjayan also used different addresses of different persons on the letter head of M/s. Maximax Impex Company.
o) The accused Jothi also used different status as partner or proprietor of Maximax Impex on various places and invoices."
44.Before I deal with each charge, I find it appropriate to refer to a particular evidence of prosecution. Prosecution relied upon testimony of PW11 i.e. an expert from CFSL, who had examined and given report in respect of signature of accused/appellant E.V. Jothi. Admittedly, IO had not taken any permission from the court before taking specimen handwriting and signatures of the accused persons, before sending the same to CFSL for comparison and examination. This omission on the part of IO makes the whole process of examination of signatures of accused as illegal.
45.In the case of Rakesh Kumar & Others v. State, reported in 2004 (72) DRJ 311, it was held that :-
"Moreover, the alleged specimen signatures/handwriting /thumb /finger print impression of appellant Chandra Shekhar and Sri Chand were obtained during investigation by the I.O without prior permission from the court. Facts in the case of Sukhvinder Singh and others Vs. State of Punjab, were that specimen handwriting of the appellant were taken under the direction of the Executive Magistrate during the investigation when no inquiry or trial was Page 24 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 pending in his court. Accused person did not raise any objection thereto yet Hon'ble Supreme Court observed that such specimen writing of the accused persons could not be made use of during the trial and the report of the handwriting expert is thus rendered of no consequence at all and could not be used against the accused to connect him with crime. In the present case the specimen signatures/writing/thumb impressions were obtained during the investigation without any permission from the Court. Therefore, the case in hand stands on a weaker footing than that of Sukhvinder Singh (Supra). Therefore, in view of the law laid down by the Supreme Court in the case of Sukhvinder Singh (supra) it follows that the specimen writing/thumb impression/finger print impression of the appellant Sri Chand Chandra Shekhar could not be made use of during the trial. The report of the hand writing expert/Finger Print Bureau is thus rendered of no consequence at all and cannot be used to connect the appellants with crime".
46.In aforesaid case, Delhi High Court referred to a judgment passed by Supreme Court in the case of Sukhvinder Singh and Ors. v. State of Punjab, reported in (1994) 5 Supreme Court Cases 152. Therefore, I deem it fit to refer to relevant observations made by Supreme Court also in respect of aforesaid situation, which are as follows :-
"A subsequent writing of an accused taken under the direction of the court is in substance a specimen writing obtained for comparison of the disputed writing with it. Though, Section 73 does not specifically say as to who could make such a comparison but reading Section 73 as a whole, it is obvious that it is the Court which has to make the comparison and it may form the opinion itself by comparing the disputed and the admitted writings or seek the assistance of an expert, to put before the Court all the material, together with reasons, which induce the expert to come to a conclusion that the disputed and the admitted writings are of one and the same author so that the court may form its own opinion by its own assessment of the Page 25 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 report of the expert based on the data furnished by the expert. The function of an handwriting expertise to opine after a scientific comparison of the disputed writing with the admitted (specimen) writing with regard to the points of similarity and dissimilarity in the two set of writings. The second paragraph of Section 73 (supra) enables the court to direct any person present before it to give his specimen writing "for the purpose of enabling the court to compare" such writings with writings alleged to have been written by such person. The obvious implication of the words "for the purpose of enabling the court to compare" is that there is some proceeding pending before the court in which or as a consequence of which it is necessary for the court to compare such writings. The direction is therefore required to be given for the purpose of "enabling the court to compare" and not for the purpose of enabling an investigating or a prosecuting agency to obtain and produce as evidence in the case the specimen writings for their ultimate comparison with the disputed writings. Where the case is still under investigation and no proceeding are pending in any court in which it might be necessary to compare the two writings, the person (accused) cannot be compelled to give his specimen writings. The language of Section 73 does not permit any court to give a direction to an accused to give his specimen writing for comparison in a proceeding which may subsequently be instituted in some other competent court. Section 73 of the Evidence Act cannot be made use of for collecting specimen writings during the investigation and recourse to it can be had only when the enquiry or the trial court before which proceedings are pending requires the writing for the purpose of 'enabling it to compare' the same. A court holding an enquiry under the Code of Criminal Procedure is indeed entitled under Section 73 of the Evidence Act to direct an accused person appearing before it to give his specimen handwriting to enable the court by which he may be subsequently tried to compare it with the disputed writings. Therefore, in our opinion the court which can issue a direction to the person to give his specimen writing can either by the court holding the enquiry under the Code of Criminal Procedure or the court trying the accused Page 26 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 person with a view to enable it to compare the specimen writings with the writings alleged to have been written by such a person. A court which is not holding an enquiry under the Code of Criminal Procedure or conducting the trial is not permitted, on the plain language of Section 73 of the Evidence Act, to issue any direction of the nature contained in the second paragraph of Section 73 of the Evidence Act. The words "any person present in the court"
in Section 73 has a reference only to such person who are parties to a cause pending before the court and in a given case may even include the witnesses in the said cause but where there is no cause pending before the court for its determination, the question of obtaining for the purposes of comparison of the handwriting of a person may not arise at all and therefore, the provisions of Section 73 of the Evidence Act would have no application.
The specimen writings in the instant case of appellant Snkhdev Paul were taken under the directions of Sh. S.P. Garg, Tehsildar executive Magistrate, PW 13. No enquiry or trial was admittedly pending in the court of the Tehsildar Executive Magistrate. The enquiry and trial in this case were pending under TADA before the Designated Court only. The direction given by the Tehsildar Executive Magistrate Sh. S.P. Garg to the appellant Sukhdev Paul to give his specimen writing was clearly unwarranted and not contemplated or envisaged by Section 73 of the Evidence Act. The prosecution has not disclosed as to at what stage of investigation or enquiry or trial was Sukhdev Paul appellant produced before the Executive Magistrate PW13 to take the specimen writing of the appellant and why the specimen writings were obtained under directions of PW13 and not of the Designated Court. It is a mystry as to how the specimen writings required to be used at the trial against the appellant were directed to be taken by PW13, who was not enquiring or trying the case.
47.Apart from aforesaid ground of omission to seek permission of the Magistrate, there is another angle of credibility also, which affects the process of taking specimen handwriting/ signature by IO. In this Page 27 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 respect, I would refer to observations made by Supreme Court in following cases :-
● In Prakash Vs. State of Karnataka, 2014 V AD (S.C.) 10, it was held that :-
"Assuming Prakash's fingerprint was in fact obtained by D'Souza, it was clearly not given voluntarily, but perhaps unwittingly and in what seems to be a deceitful manner. To avoid any suspicion regarding the genuineness of the fingerprint so taken or resort to any subterfuge, the appropriate course of action for the Investigating Officer was to approach the Magistrate for necessary orders in accordance with Section 5 of the Identification of Prisoners Act, 1920."
● In Mohd. Aman Vs. State of Rajasthan (1997) 10 SCC 44, it was held that :-
"Even though the specimen fingerprints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take fingerprints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate."
48.In view of aforesaid case laws, the report given by PW11 cannot be read in evidence against the appellants. At the same time, it is worth to mention that PW11 did not give any opinion in respect of signatures appearing on the copy of alleged amended partnership deed. The reason was that no opinion could be given on the basis of photocopy of the document. Now, I shall deal with other piece of evidence qua each charge.
49.The first charge framed against the appellants refers to object of entering into a criminal conspiracy to cheat M/s. Saleh Brothers and also refers to the conspiracy to prepare forged partnership deed Page 28 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 dated 21.10.1993. The other Sections added with 120B IPC also reflect that the allegations were regarding conspiracy to use forged partnership deed for cheating. For the purpose of establishing existence of a criminal conspiracy, prosecution relied upon different circumstantial evidences for obvious reasons that direct evidence for such purpose are rarely available.
50.However, it has to be seen, if the circumstantial evidences relied upon by prosecution actually point out towards existence of a criminal conspiracy between appellants, without any exception. The circumstances relied upon by trial court at serial no. (h) mentioned that forgery of amended partnership deed was already proved and other circumstances basically related to conspiracy of cheating.
51.It is admitted case that the alleged forged amended partnership deed in original was never obtained by the IO. As per testimony of IO/PW24, he obtained true copy of agreement dated 22.03.1994 from accused E.V. Jothi and accused E.V. Jothi certified this agreement under his signature. However, he did not say anything about the copy of amended partnership deed i.e. D8. This document was not proved and was simply marked as Mark A/PW1. On perusal of this document, I find that it bears attestation of IO/PW24. It also bears endorsement of true copy probably obtained from accused E.V. Jothi. But the question remains that there is no whisper at all on the part of prosecution that what was the source of getting this document. Since this was a photocopy, therefore, even finger print/ handwriting expert i.e. PW11 did not give any opinion over the writings/signatures appearing on this document. When this document was not proved at all, then such document could not be looked into as a piece of evidence. No particular reasons have been explained Page 29 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 either in the testimony of IO or otherwise as to why original copy of this document was not obtained. When IO did not depose that he obtained the photocopy from the accused, then it is not for the court to make assumption of any such fact. In these circumstances, just because name of both appellants appeared to be mentioned in this document as partners of M/s. Maximax Impex, it cannot be assumed that both the appellants were actually connected with creation of such document. The court has to act and decide on the basis of duly proved evidences, rather than on the basis of presumptions. Therefore, I do not find any connection between this alleged amended partnership deed and the appellants, to be proved on the record.
52.I would like to give one simple illustration for not acting on the basis of any presumption. Suppose, if name of two distinguished persons would have been mentioned in the aforesaid document as partners of the aforesaid firm and a complaint against them (similar in nature as made against appellants) along with photocopy of such document would have been received. Could simply on the basis of such photocopy, without there being any evidence to show that such document was actually prepared by those distinguished persons, court hold those distinguished persons responsible for forging such document. Answer has to be in negative and this illustration should be sufficient to show the importance of a particular fact and document being duly proved.
53.There is apparently no other evidence to show that appellants had conspired to prepare the alleged amended partnership deed and in absence of any evidence to connect the appellants with creation of alleged amended partnership deed, testimony of PW2 does not help Page 30 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 any cause against appellants. Therefore, I am unable to find any evidence of conspiracy to prepare the alleged forged partnership deed.
54.The second part of alleged conspiracy related to use of the same alleged amended partnership deed for the purpose of cheating M/s. Saleh Brothers. However, for this purpose there must be some evidence to show that appellants used or attempted to use the alleged amended partnership deed, while dealing with M/s. Saleh Brothers. Here, comes the importance of examining Mr. Nabi Baksh Salehji as witness in this case, because he was the only witness (shown by CBI) who could have explained his dealings with the appellants. Most importantly, he was the relevant witness to prove letters sent by him to various authorities thereby making allegations against the appellants. He was admittedly not produced as witness and impugned judgment mentions that during the arguments it was argued by ld. Prosecutor that this witness had expired during the course of trial. However, on the record there is no material placed by CBI to show that this witness had actually expired. Moreover, apparently name of this witness was mentioned at serial no.1 in the list of witnesses. Trial court record further shows that evidence in this case started since 18.08.2003 and it continued up to 07.08.2012. So it was a period of around 9 years, for which prosecution evidence continued in this case. On the trial court record I could only find some summons along with letters of request issued for service upon this witness, but there is no further report on the summons for this witness.
55.The absence of this witness created a major loop hole in the case of prosecution, because allegedly he had been dealing with the Page 31 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 appellants and allegedly he was deceived by the appellants. Therefore, first of all it was necessary for the case of prosecution that the alleged deceived person deposed before the court as to the manner in which he was deceived by the appellants. It was further necessary that such person stood the test of cross-examination, so as to be believed upon. It is not the law that whenever anyone alleges about a cheating committed against him, his allegations are believed upon by the court without test of trial. In these circumstances, I am in agreement with the contention of defence/appellants that Sh. Nabi Baksh Salehji was a material witness of this case and omission to examine him was fatal for the case of prosecution.
56.The further reasons to be in agreement with such contentions are that there are several questions arising out of record of this case. In one of his communication, which was proved as Ex.PW3/B, Mr. Nabi had also made allegations against Sh. C.A. Majeed and his allegations would go on to show as if Mr. Majeed was also one of the persons involved in deceiving him. However, surprisingly such letter did not invite sufficient attention of CBI to act against Mr. C.A. Majeed or to seek clarification from Mr. Nabi Baksh. Rather, Mr. C.A. Majeed was cited as a witness and examined as PW8, who was finally declared hostile by CBI because he was not supporting the case of prosecution. I find that ld. CMM still relied upon testimony of this witness, though his testimony would show that he was not consistent over any particular fact and he had been very shaky. When this witness was not even able to identify his own signatures on one piece of paper and when he came up with answers like signature on Ex.PW2/A appeared like his signature and then he further went on to Page 32 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 say that he had loss of memory and he could not even realise that he was giving his statement in a court room, then it was not appropriate to rely upon his version that signature on alleged partnership deed at point C did not pertain to him. His admission that his name and address was mentioned on original partnership deed was having no evidentiary value.
57.In fact, from the trial court record and evidence led by CBI, I find that care was not taken to prove contents of a document through a competent witness. Contents of a document cannot be proved by asking a witness to read the document and thereafter, by exhibiting such document. The contents can be proved only by those witnesses, who were either author of the contents or in whose presence such contents were written. In some case, where actual author/ executant are not available, then such witnesses are to be produced who can identify the handwriting of the author. Still, in such situations there remains a weakness in the prosecution evidence, in the sense that accused does not get opportunity to cross-examine the witness, who could vouch for correctness of contents. It is, therefore, necessary that such witnesses are produced, who can vouch for correctness of contents of a document and when such witness withstand the rigor of cross-examination, only then court relies upon the contents of such document.
58.In the present case, a number of documents were exhibited in the examination of CFSL expert i.e. PW11, even though he had no personal connection with such documents. Such documents were simply sent to him as questioned or specimen documents and apparently he could not have vouched for correctness of contents of these documents. Similarly, though a letter of Mr. Nabi Baksh was Page 33 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 exhibited in the examination of PW3, but apparently PW3 was not competent witness to prove the contents of this letter or to vouch for correctness of contents of this letter. He had simply received copy of this letter (Ex.PW3/B) and his role was limited to say that he received such copy of letter. PW3 also proved his complaint Ex.PW3/A, but admittedly he had no personal knowledge about the allegations made in this complaint. This was the complaint on the basis of which CBI registered this case. PW3 had made this complaint simply on the basis of receiving letter from Indian Embassy, Iran based on the complaints made by Sh. Nabi Baksh. Therefore, evidence of PW3 has no meaningful effect in respect of proving the charges against appellants.
59.The offence of cheating is defined in Section 415 IPC. Ingredients of Section 415 IPC can be divided into three following parts :-
● Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or ● Intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and ● Which act or omission causes or is likely to cause damage or harm to that person in mind, body, reputation or property, is said to "cheat".
The aforesaid ingredients of cheating show that an act or omission as covered under head of (a) or (b) must be coupled with effect as covered under head of (c) in order to complete the offence of cheating.
60.In view of my foregoing discussions, I find that there is no evidence on the trial court record to prove that appellants had actually deceived M/s. Saleh Brothers acting through Mr. Nabi Baksh or they Page 34 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 used alleged amended partnership deed for the purpose of this cheating.
61.Simply, on the basis of allegations of dishonour of three cheques issued by appellants, no inference of cheating can be raised, because the cheques can be dishonoured (even if so assumed in respect of all three cheques) for number of reasons. Appellants had taken plea that they had given blank cheques and therefore, once again it was necessary to have Mr. Nabi Baksh as witness to explain the circumstances under which he received these cheques and to respond to the stand being taken by the appellants regarding these cheques, during the process of his cross-examination. It is also important to note that none of original cheques were placed on the record nor dishonour of two cheques out of three was proved on the record.
62.Coming to fourth and fifth charges against appellants, I find these charges to be inherently defective in the sense that I do not find any instance of making false document, while issuing the cheques mentioned in these charges.
63.A full bench of Supreme Court in Ram Narayan Popli v. CBI, (2003) 3 SCC 641, had occasion to deal with the ingredients of forgery and while dealing with this question, the court observed as follows :-
"The first essential is that the accused should have made a false document. The false document must be made with an intent to cause damage or injury to the public or to any class of public or to any communities."
64.The court further observed that "the definition of the offence of forgery declares the offence to be completed when a false document is made with specified intention. The questions are (I) is the document false, (ii) is it made by the accused and (iii) is it made with Page 35 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 an intent to defraud. If at all the questions are answered in the affirmative, the accused is guilty."
65.The aforesaid observations of the Supreme Court make it amply clear that in order to constitute forgery, the first ingredient, which requires to be established is making of a false document. While dealing with question of making of false document, Supreme Court in Mohd. Ibrahim & Ors. v. State of Bihar (2009) 8 SCC 751, held as under :-
"In short, a person is said to have made a false document, if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tempered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses."
66.As far as fourth charge is concerned, appellant E.V. Jothi had signed the cheques showing himself as proprietor of M/s. Maximax Impex. This was not allegation against him that he had issued cheques drawn on an account being maintained by the partnership firm with name of M/s. Maximax Impex. PW6 deposed that Mr. Jothi had been operating this account in the capacity of proprietor of M/s. Maximax Impex and as per PW4 the partnership firm having same name had account in American Express Bank. Thus, these were two different accounts and Mr. Jothi had issued cheques from an account, which was opened and maintained by him. Therefore, there was no element of making a false document. Had he signed and issued a cheque leaf from the account of partnership firm namely M/s. Maximax Impex being maintained in American Express Bank, showing himself as partner of that firm, it could have been an instance of making false document on the basis of allegations that without being partner Mr. Page 36 of 38 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016 Jothi signed and issued the cheque on behalf of this partnership firm. Apparently, it is not so alleged here and hence, I do not find any substance in fourth charge.
67.As far as fifth charge against appellant K.G. Dhananjayan is concerned, I find that some wrong facts were alleged therein to mention that this accused issued cheque showing himself to be proprietor of M/s. Maximax Impex. Actually, this cheque was issued out of an account being maintained in the name of Federation of Indian Farmers Association. Therefore, this charge was inherently defective and same cannot be sustained.
68.A distinction has to be maintained between a charge of forgery and a claim under laws of Copyright or Patent over use of a particular name. Evidence herein show that name of M/s. Maximax Impex was being used in the account maintained by Sh. E.V. Jothi, but at the most same could be in violation of Copyright or Patent of the partnership firm. However, there is no such claim on the part of partners of this firm regarding violation of Copyright or Patent. It could not be subject matter of trial in this case as well.
69.In view of my foregoing discussions, observations and findings, I find that none of the charges were proved against any of the appellants and therefore, their conviction for offence under Section 420/468/471 as well as under Section 120B IPC is bad in the eyes of law. For such reasons, both appellants are acquitted of all the charges and the impugned judgment dated 14.10.2016 as well as the consequent order on sentence dated 15.10.2016 are set aside. Both appeals are allowed accordingly. The amounts, if deposited by any of the appellants in this case, in consequence to order on sentence, shall be released to them.
Page 37 of 38 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.312/2016 & 313/2016
70.Before parting with this judgment, I do wish to express anguish over absence of any action on the part of CBI over the facts specifically pointed out by ld. MM vide order dated 06.06.2003. CBI relied upon the alleged agreement dated 22.03.1994 between Sh. Nabi Baksh and appellants, wherein rate of sale of wet dates was mentioned to be @ US$ 500. Though, in the invoices and bills relied upon by CBI, the rates were mentioned to be @ US$ 100. The apparent purpose of this difference in the rates was to cheat the customs department of India, so as to pay lesser customs duty on the imported wet dates. CBI, though, projected the claim of M/s. Saleh Brothers @ US$ 500, but opted to ignore the cheating being committed against Government of India in respect of customs duty. At least, a formal communication of the same should have been given to the customs department. On the trial court record, I could not find any such communication, if made by CBI to the customs department, despite specific order dated 06.06.2003. Being functionary of State, it was duty of CBI to do so and therefore, CBI must take care that their action remains as per duty cast upon them so as to be alive to any illegal/criminal act and to take suitable steps qua such criminal acts.
71.TCR along with copy of common judgment be sent to the trial court.
File be consigned to record room, as per rules.
Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court
PRAMACHALA No.3, Karkardooma
Courts, Delhi
Date: 2018.05.03
19:05:11 +0530
Announced in the open court (PULASTYA PRAMACHALA)
today on 03.05.2018 Special Judge (PC Act) CBI, East
(This order contains 38 pages) Karkardooma Courts, Delhi
Page 38 of 38 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi