Delhi District Court
Cbi vs . Ya-Wari-So Etc. on 15 April, 2014
RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 IN THE COURT OF POORAN CHAND: CHIEF METROPOLITAN MAGISTRATE: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI RC No.: 5(E)/95 PS: SIU-VIII/CBI/ND U/s 120B r/w 420/471 IPC CBI Vs. Ya-Wari-So etc. Unique ID No.: 02401R0024761997 J U D G M E N T:
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(a) S.No. of the case : 1/2/97
(b) Name of complainant : Sh. A.K M. Chakankar., Dy Director General of Foreign Trade, O/O Director General, Foreign Trade, Udyog Bhawan, New Delhi
(c) Date of commission of offence: not known
(d) Name of the accused : 1. M/s Ya-Vari-so Branch office-
Mohalla- Barawalan, Jama Masjid Road, Moradabad, UP Head Office 352, Behind Main Market, Abdul Fazal Enclave, Jamia Nagar, Okhla, New Delhi Through Mrs Safia Begum, w/o Syed Ahmed Khan r/o Behind Montessari Gulab Rai Public School, Barielly, UP
2. Mrs Safia Begum, w/o Syed Ahmed Khan r/o Behind Montessari Gulab Rai Public School, Barielly, UP
3. Mr Syed Ahmed Khan s/o late Dr. Nazir Ahmed CBI V/s YaWariSo Page 1 of 23 RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 Khan r/o Behind Montessari Gulab Rai Public School, Barielly, UP
4. Mr Gulam Rasool s/o late Raise Dullah r/o 7-D/39, Mohalla Kishrol, Moradabad, UP
(e) Offence complained of : U/s 120B r/w 420/471 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 28.03.2014
(h) Final Order : Accused Syed Ahmed Khan-
Convicted, Accused Gulam Rasool-Acquitted.
(i) Date of such order : 15.04.2014 BRIEF FACTS & REASONS FOR SUCH DECISION:
1. The facts of the case in brief are that present case was registered on the basis of a written complaint No. 9/4/94-95/P & I dated 11/12/95 of Sh A.K. M Chakankar, Dy. Director General of Foreign Trade of the office of Director General of Foreign Trade, Udyog Bhawan, New Delhi addressed to CBI, New Delhi against M/s Ya-Vari-So 353, Behind Main Market, Abdul Fazal Enclave, Jamia Nagar, Okhla and its branch office at Barawalan, Moradabad. The allegations levelled against the said firm are that it had obtained one quality based Advance Licence No.P/K/2320620 dated 08/09/93 from the office of Joint DGFT (CLA), New Delhi with CIF value of RS. 48,00,000/- which is equivalent to US$ 1,50,000/- for import of brass scrap with a quantity of 126.98 mt. The said licence was issued with the condition that the firm shall export 131250 IC of Brass Electrical Wiring Accessories worth amount of Rs. 84,00,000/- equivalent to US$ 2,62,500/-. M/s Ya-Vari-So had not fulfilled the condition of the licence i.e Export of 131250 IC of the Brass Electrical Wiring Accessories worth amount of Rs. 84,00,000/-. It was also alleged in the complaint that the said licence was obtained on the basis of fake documents i.e LUT, CA CBI V/s YaWariSo Page 2 of 23 RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 Certificate and Bank Realization Certificate submitted in the office of Jt. DGFT (CLA), Delhi.
2. During investigation, it was revealed that M/s Ya Vari So is a proprietorship concern of Mrs Safia Begum who had applied to obtain the said licence vie application dated 13/07/93 and had submitted copies of requisite document i.e Application Form, photocopy of RCMC, photocopy of IEC, RBI Code number, photocopy of Export Performance Certificate duly attested by Chartered Accountant. Export orders were signed by Mrs Safia Begum. The aforesaid documents were required to obtain the quality clearance Licence from the office of Jt. DGFT, Chartered Accountant Certificate purportedly issued by M/s. V. Maheshwari & Co, was found forged which was confirmed by Hand Writing Expert. The LUT (Legal Undertaking) which was submitted in the office of Jt. DGFT under the signature of Mrs Safia Begum was based on the false information. The said LUT was witnessed by Syed Ahmed Khan. Mrs Safia Begum is the wife of Syed Ahmed Khan. The contents of LUT is false and not based on the documents. M/s. Ya Vari So did not perform any past performance of export before obtaining the said licence. M/s Ya-Vari-So had not dealt any foreign transaction in his account, which was maintained in Punjab National Bank, Amroha Gate, Moradabad. The Bank Realization Certificate was not issued by the said bank.
3. It is further alleged that Mrs Safia Begum vide her letter dated 13/07/93 has authorized her husband Syed Ahmed Khan to deposit the said application along with the required documents for the purpose of getting the licence from the office of Jt. DGFT. Syed Ahmed Khan had pursued the said licencing file in the office of Jt. DGFT and collected the licence in question. Syed Ahmed Khan has submitted a false bank realization certificate, Certificate no. nil, dated nil showing Export Performance of the firm for the year 1992-93 for Rs. 61,71,920/-. Investigation further revealed that the Bank Realization Certificate was CBI V/s YaWariSo Page 3 of 23 RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 not issued from the Bank and it was not signed by any officer of the Bank.
4. Investigation further revealed that Mrs Safia Begum had opened a Current Account No. 803 in United Bank of India, Prince Road Branch, Moradabad, in the name of M/s Ya-Vari-So and has authorized her husband Syed Ahmed Khan to operate the said bank account as Authorized Representative. It is further alleged that Mrs Safia Begum, Syed Ahmed Khan in criminal conspiracy with Gulam Rasool made import of Brass Scrap to the tune of Rs. 37,61, 433.20/- against Licence No.P/K/2320620 dated 08/09/93. It is further alleged that Gulam Rasool was having the direct connection with the CHA for clearance of the import material . The Clearing House Agent has also reminded for payment to Gulam Rasool for service charges. No correspondence by CHA is addressed to Mrs Safia Begum or Syed Ahmed Khan. The Clearing House Agent M/s.Universal Cargo Forwarders had received the payment of service charges from Gulam Rasool. The import documents against the said licenses were retired from the bank by Syed Ahmed Khan. The Brass Scrap amounting to Rs. 37,61,433.20 which was import under quality based Advance Licence No.P/K/2320620 dated 08/09/93 with CIF value of Rs. 4,80,000/-, equivalent to US$ 1,50,000/- was got cleared by the accused persons from custom through M/s. Universal Cargo Forwarders, M/s. Mulji-Dhamji & M/s.Mahavir Shipping Agency (CHA), Mumbai. It is further alleged that all the accused persons have mis-utilized the licence. M/s Ya Vari So has failed to fulfill the export obligation of 131250 IC of Brass Electrical Wiring Accessories worth amount of Rs. 84,00,000/- equivalent to US$ 2,62,500/-. It is alleged that thus all the accused persons have caused a wrongful loss of Rs. 25,19,200/- approximately by way of saving the custom duty on the import material against the Licence No.P/K/2320620 dated 08/09/93 and caused wrongful gain to themselves and corresponding loss to the Govt. of India, by not paying the Custom Duty to that extent.
CBI V/s YaWariSo Page 4 of 23RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014
5. On the basis of said information, accused persons namely Mrs Safia Begum, Syed Ahmed Khan and Gulam Rasool were arrested in the matter. Thereafter, RC in the matter was registered and after completion of necessary investigation, IO prepared the chargesheet and filed the same before the Court.
6. After completion of investigation, accused persons stood chargesheeted for offences punishable u/s 120B r/w 420/471 IPC. Accused persons were summoned and were supplied the documents in compliance of Section 207 Cr.P.C and after hearing arguments, vide order dated 22.09.1999, charge for offence punishable u/s 120B r/w 420/471 IPC IPC was framed against the accused persons to which they pleaded not guilty and claimed trial. Thereafter, during the course of trial, accused Safia Begum expired on 27.05.2011 and the factum of her death has come on record in order sheet dated 07.11.2001. Presently, accused firm Ya-Vari-So, Syed Ahmed Khan and Gulam Rasool are facing trial.
7. In order to prove charges against the accused persons, the prosecution examined nineteen witnesses and thereafter PE in the matter was closed and statement of accused persons u/s 281 r/w S. 313 Cr.P.C. was recorded wherein they stated that they were falsely implicated in the present matter.
8. I have heard arguments advanced at Bar by the Ld. APP for the State, Sh T.A Siddiquie, Advocate for accused Syed Ahmed Khan and Ld Counsel Sh Satish Tamta, Advocate for accused Gulam Rasool and perused the entire material on record.
9. Before adverting to adjudication upon the arguments advanced at Bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which is as under.
CBI V/s YaWariSo Page 5 of 23RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014
10. PW1 Sh A.K.M Chakanka, Joint Director General of Foreign Trade, Udyog Bhawan, New Delhi is the complainant in the case. He deposed that in the year 1995, he was posted as Dy Director General of Foreign Trade in DGFT headquarters looking after enforcement work. On 10.12.95, he has sent a information to the Supdt. of Police, CBI, SIU VIII to lodge a FIR against M/s Ya Vari So which is Ex.PW1/A. He has proved the application form of M/s Ya Vari So for the value based advance license as Ex.PW1/C which is under the signature of accused Safia Begum. He further proved the copy of RCMC as Ex.PW1/D, copy of I & E code number issued to the applicant firm is Ex.PW1/E, purchase order Ex.PW1/F, certificate from CA Ex.PW1/G, supporting manufacturing declaration is Ex.PW1/H, disclaimer certificate Ex.PW1/I, treasury challan in duplicate Ex.PW1/J & authority in the name of Syed Ahmed Khan is Ex.PW1/K. He has further proved the noting on file vide which application for license was approved as Ex.PW1/L. Letter of M/s Ya Vari So dated 23.08.93 is Ex.PW1/M vide which it submitted revised application for quantity based advance licence is Ex.PW1/N.He has further proved the gate pass which is Ex.PW1/O and forwarding letter vide which quantity based advance license was dispatched is Ex.PW1/P under the signature of Sh R.K Sharma, office copy of license is Ex.PW1/Q. The conditions attached to the license are Ex.PW1/R and PW1/S. The gate pass issued in the name of accused Syed Ahmed Khan is Ex.PW1/T and letter authorizing accused Syed Ahmed Khan for collecting LUT is Ex.PW1/U. Duly executed LUT dt. 27.9.93 mark X was accepted vide notes dated 5.10.93 which is Ex.PW1/V. The LUT was returned to the party vide noting Ex.PW1/W as the same was not found attested by Notary public. He has further proved the letter dated 24.07.95 Ex.PW1/X vide which Manager, PNB, Moradabad was requested by Sh Rati Ram Asstt. DGFT to confirm the genuineness of bank certificate dated 18.08.94. Letter dated 24.02.95 is Ex.PW1/Y vide which Sh Rati Ram inquired the Manager, PNB Moradabad, UP for confirmation of bank realization certificate. The said certificate has been proved as Ex.PW1/Z. He has further proved the letter CBI V/s YaWariSo Page 6 of 23 RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 dated 12.08.94 vide which Branch Manager PNB Moradabad was asked regarding confirmation of foreign exchange earned by accused firm M/s Ya Vari So as Ex.PW1/Z1 and reply of the bank in this regard has been proved as Ex.PW1/Z2. Sh V. Maheshwari & Co vide letter dated 7.3.95 Ex.PW1/Z3 clarified that the C.A certificate Ex.PW1/G was not issued by it. The seizure memo vide which the documents were handed over to CBI is Ex.PW1/Z4.
11 This witness was cross examined by accused Gulam Rassol wherein this witness admitted that M/s Ya Vari So is a proprietor firm. He also admitted that accused Gulam Rasool has not visited his office in connection with the processing of this file and licence.
This witness was not cross examined on behalf of other accused persons despite giving opportunity.
12. PW-2 Sh Daya Nand Sharma is the postman who has deposed that he was entrusted with the dak of Abu Fazal Enclave and has stated that M/s Ya Vari So and Ya Moot Ioon was not in existence in his beat and has further stated that the dak of the said firms were received at 353, Abu Fazal Enclave but as said address was not in existence the said dak was returned. Later on, accused Syed Ahmed Khan met him and said that the post by name of above said firms may please be handed over to him. Later on, the said accused Syed Ahmed Khan took one room on rent in Abu Fazal Enclave and displayed the board of above said firms there and after that this witness used to deliver the dak of above said firms on the said room to accused Syed Ahmed Khan present in the Court.
This witness was not cross examined on behalf of the accused persons despite giving opportunity.
13. PW3 Sh Than Singh, Asstt. Manager who has deposed that PW1/Z2 bears his signatures at point A. This letter was sent in reply to letter Ex.PW1/Y. By this letter, the bank has informed the CBI that account CBI V/s YaWariSo Page 7 of 23 RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 No. CA 4595 in the name of firm Ya Vari so Barbalan, Moradabad was opened on 21.02.92 and was closed on 22.03.93. This witness has also identified the signature of Sh G.N Saxena on Ex.PW1/Yb certifying that certificate of Rs. 61,71,920/- without date is false and not issued by the bank.
This witness was not cross examined on behalf of the accused persons despite giving opportunity.
14. PW-4 S. Mahto is the witness from the office of Joint Director General, Moradabad and has deposed that on 22.11.96, he had handed over the documents to CBI vide seizure memo Ex.PW4/A. Vide letter Ex.PW1/X Asstt. General Director Sh Rati Ram has confirmed the genuineness of bank certificate dated 18.08.94 from the Punjab National Bank, Moradabad. This witness has identified the signature of Sh Rati Ram on Ex.PW1/Y. This witness has further stated that another letter had been sent to P.N.B, Amroha Gate, Moradabad to verify the genuineness of bank certificate issued in favour of M/s Ya Wari So of Moradabad and bank has replied on point B to B on Ex.PW1/Y. This witness was also not cross examined on behalf of the accused persons despite giving opportunity.
15. PW-5 is Mohd Anis Jr. Investigator, District Industry Centre Moradabad. He has proved the receipt memo Ex.PW5/A vide which documents were handed over. He has deposed that as per record Sayed Ahmed Khan had applied for registration of firm M/s S.A Karkhanadar which was verified by Sh Banwari Lal Sr. Investigator and has identified his signatures on Ex.PW5/B. Mr Banwari Lal recommended for registration as manufacturers of moulding of brass wares etc. The certificate of registration was sent through General Manager to the party and same was proved as Ex.PW5/C. During cross examination, the witness stated that Sh Bawari Lal Sr. Investigator is still in service and is posted as Badaiyu. On the CBI V/s YaWariSo Page 8 of 23 RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 basis of investigation and recommendation, this firm was registered. This witness admitted that Sh Bawari Lal did not give any detailed verification report and the witness volunteered that the report is on a format.
16. PW-6 is Sh Vimal Nayyar Manager Bank of Maharashtra, Narol Branch, Ahmedabad. He deposed that in the year 1996, he was posted as Manager in Regional Office, New Delhi region, Karol Bagh, New Delhi. He has proved the seizure memo Ex.PW6/1 vide which IO has collected the documents from Mrs Safia Begum before him. This witness further stated that he visited the office of CBI on 11.05.96 and met Sh Sayeed Ahmed and in his presence, Sayeed Ahmed willingly gave his specimen signatures which are on Ex.PW6/2 to Ex.PW6/11. He further stated that he visited the office of CBI on 18.05.96 and was introduced to Mrs Safia Begum and in his presence, Safia Begum willingly gave her specimen signatures to the IO which are on Ex.PW6/12 to Ex.PW6/34.
During cross examination, witness stated that he could not tell the time when he visited the office of CBI. He remained in CBI office only for one and a half hour. At the time of taking specimen signatures, he along with IO, Syed Ahmed and Safia Begum were present in the office. He denied the suggestion that specimen signatures were not taken in his presence. He stated that he was not known the persons whose specimen signatures were taken previously by the IO. He stated that he was never called after 18.05.96. He further stated that he could not tell the number of documents which had been duly got signed by the persons concerned and placed before him. He further stated the he could not state whether those signatures had been got signed already. He further denied the suggestion that he was deposing falsely.
17. PW-7 is T.P. Subramaniam, Ex.-Dy. Commissioner of Central Excise of Bombay. He deposed that in the year 1996, he was working as Asstt. Commissioner, MCD, Bombay Customs. On 6.11.96, Sh Devender CBI V/s YaWariSo Page 9 of 23 RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 Singh IO of CBI has seized the documents mentioned in the seizure memo dated 6.11.96 from him and prepared a seizure memo before him which has been proved as Ex.PW7/A. This witness was not cross examined on behalf of the accused persons despite giving opportunity.
18. PW-8 is I.K Aggarwal, Deputy Manager, SBI, Zonal Office, Bareilly. This witness has proved the arrest memo of accused Syed Ahmed Khan as Ex.PW8/A. This witness was not cross examined on behalf of the accused persons despite giving opportunity.
19. PW-9 is Sh Mahender Singh, Asstt. Government Examiner of Questioned Documents, Shimla has stated that he is Master of Science in Chemistry and have received his specialized training in Scientific Examination of documents including handwriting identification and forgery detection from Government of India Laboratory at Hyderabad for about three years. He has been in this profession for the last 25 years. He further stated that the documents in this case were received for examination in their laboratories vide letter EX PW9/A from SP, CBI, SIU VIII, New Delhi dated 24.09.1996 and documents are as under:-
"(a) Documents stamped and marked Q1 to Q5 on Ex. PW1/K, Q6 on Ex. PW9/B1, Q7 on Ex. PW9/B2, Q8 to Q13 on Ex. PW1/C, Q17 to Q19 on Ex. PW1/E to G respectively, Q20 & Q21 on Ex. PW1/H, Q22 on Ex.
PW1/I, Q23 & Q24 on EX. PW1/M (2 sheets) Q25 to Q34 on Ex. PW1/N (4 sheets), Q35 & Q36 on Ex. PW1/O, Q37 and Q38 on Ex. PW1/T, Q39 to Q41 on Ex. PW1/U, Q42 on Ex. PW9/B3, Q 43 & Q44 on Ex. PW9/B4, Q45 & Q46 on Ex. PW9/B5, Q47 on Ex. PW9/86, Q48 & Q49 on Ex. PW9/87, Q50 to Q69 (10 sheets) on Mark X,Q70 to Q77 (5 sheets) on Ex. PW9/B8, Q78 to Q82 on Ex. PW9/B9 (two sheets), Q83 & Q84 on Ex. PW9/B10 and Q85 and !86 on Ex. PW9/B11,
(b) Specimen writing and signatures purported to be of Sh. Sayeed CBI V/s YaWariSo Page 10 of 23 RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 Ahmad Khan stamped and marked S1 to S20 on Ex. PW6/2 to 11, S21 to S182 on Ex. PW9/C1 to C81,
(c) Specimen writing and signatures purported to be one Safia Begum stamped and marked S183 S, 226 on Ex. PW6/12 to 34.
(d) Specimen writings and signatures purported to be Sh. V.K. Maheshwari stamped and marked S227 to S244 on Ex. PW9/82 to C90. Rubber stamp impressions and signatures marked S245 to S264 on Ex. PW9/C91 to 100, S265, to S274 on Ex. PW9/C101 to C105 respectively.
(e) Admitted signatures and writing purported to be of Sayeed Ahmed Khan stamped and marked A3 to A4, Ex. PW9/D1 to 16 to A 18 on Ex. PW9/02.
(f) admitted signatures purported to be of Safia Begum stamped and marked A1 on Ex PW9/D3; A2, A5 & A6 on Ex. PW9/D1; A-B & A-9, A-12 on Ex PW9/D7, A-13 on Ex. PW9/DB, A-14 on Ex PW9/D9, A-15 on Ex. PW9/D10, and A-7 on Ex. PW9/D11;
(g) Admitted signatures purported to be of V.K. Maheshwari stamped and marked as A-19 on Ex. PW9/D-12, A24 on Ex. PW9/D-13, A-24 on Ex. PW9/D-14, A-27 on Ex. PW9/D15, A28 on Ex. PW9/D16, A-30 on Ex. PW9/D17, and A-38 on Ex. PW9/D18;
(h) Specimen rubber stamp impressions stamped and marked as A-20 on Ex. PW9/D-12, A-22A, on Ex. PW9/D19, A-24A on Ex. PW9/D13, A-26 on Ex. PW9/D14, A29 on Ex. PW9/D16, A-31 on Ex. PW9/D17, A-32 on Ex. PW9/D-20, A-33 on Ex. PW9/D21, A34 on Ex. PW9/D22, A35 on Ex. PW9/D23, A-36 on Ex. PW9/24 and A-37 on Ex. PW9/D-25.
(i) Printed matter marked A22 on Ex. PW9/D19, A-21 on Ex. PW9/D12, A-23 on Ex. PW9/D13, and A-27A n Ex. PW9/D16.
20. PW-10 is Sh Vijay Kumar Postal Asstt. Post Office Greater Kailash New Delhi. He has deposed that during the year 1993, he was working as postman in Jamia Nagar Post office, New Delhi. He stated as and when Sh Daya Nand Sharam postman was on leave, he used to look after his work. In that year, a registered letter was received in the post CBI V/s YaWariSo Page 11 of 23 RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 office in the name of M/s Ya Vari So which was delivered by him to accused Syed Ahmed. He further identified the accused in the Court.
During cross examination, this witness stated that he delivered the registered letter against slip. CBI official has recorded his statement but he did not remember the name of the official. He did not ask him for the letter delivery slip. He was not shown the registered letter.
21. PW-11 is Sh Banwari Lal Manager Credit in the office District Industries Centre, Bedaun, UP. This witness has deposed that in the year 1994, he was posted as Senior Investigator in the office of Distt. Industries Centre, Moradabad, UP. On the application of Sh S.A Karkhanadar, he was marked for verification for M/s S.A Karkhandar for registering the firm as SSIU. Likewise, he has conducted the personal verification and submitted his report Ex.PW5/B. The SSIU registration is Ex.PW5/C which was issued to the firm M/s S.A Kharkanadar under the signatures of Sh R.S Upadhayay, the then General Manager and this witness identified his signatures at point A. This witness was not cross examined on behalf of the accused persons despite giving opportunity
22. PW-12 is Sh Mahabir Prasad Shukla. He has stated that he joined United Bank of India on 28.10.64 in Kanpur Branch. He was promoted in the year 1996 and was posted at Naya Ganj Branch, Kanpur. He joined Moradabad branch on 6.5.91. He was attached with the branch upto 11.02.95. This witness after seeing the current account no. 803, states that the said account was opened in United Bank of India Moradabad branch in the name of M/s Ya Vari So. In the account opening form, Mrs Safia Begum was the proprietor of the firm and this witness has given the permission to open the account which bears his signatures at point A on Ex.PW9/D3. He has also stated that on the account opening form, Sh Syed Ahmed was shown as Manager of the said firm. He had given the permission to open the account by signing at point A on CBI V/s YaWariSo Page 12 of 23 RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 Ex.PW9/D1. This witness has also proved various transactions made on behalf of the firm and has also proved that the import documents were retired on the request of proprietor of M/s Ya Vari So as per rules.
This witness was not cross examined on behalf of the accused persons despite giving opportunity
23. PW-13 Sh Vineet Kumar Maheshwari is the Chartered Accountant since 1990. He has deposed that he never issued any Export Performance Certificate in favor of M/s Ya Vari So and has never audited the accounts of the said firm. On seeing the documents Ex.PW1/G, Export Performance Certificate, this witness states that same do not bear his signatures and seal. He has further stated that this certificate has not been issued by him and does not bear his genuine signature at point A. During cross examination, this witness stated that he did not remember who had come to inquire from him about the genuineness/authenticity of the export certificate purportedly issued by him in favor of M/s Ya Vari So. They only told him that they are the officials of Director General of Foreign Trade. He further stated that he did not ask them about their I-cards.
24. PW-14 is Sh Murari Lal Meena, Senior Technical Officer, Central Economic Bureau, Janpat Bhawan, New Delhi. He deposed that in the year 1993 he was working as Apprising Officer, Group VII New Customs House, Mumbai. In that capacity, he was duty bound to assess the bill of entry by which various parties import the goods under duly exemption scheme. Vide bills of entry thoka number 359 dated 1.11.93 M/s Ya Wari So Barwalan, Moradabad, India imported 21 metric tonnes brass scrap from Al Sharif Scrap Trading Co. Ltd UAE. The party has filed the aforesaid bill of entry under custom tariff head 7404.00 and claimed duty free under custom notification number 204/92 against the advance license number P/D/23206230/CC/XX/31/D/93 dated 8.9.93 and DEE. C book number 026621 dated 8.9.93. This witness proved the DEEC CBI V/s YaWariSo Page 13 of 23 RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 declaration as Ex.PW14/A, supply invoice number as Ex.PW14/B and gate declaration Ex.PW14/C. He further proved the bill of entry vide which he assessed the goods as Ex.PW14/D. This witness was not cross examined on behalf of the accused persons despite giving opportunity.
25. PW-15 is Sh Damodar Balaram Jadhav. He has stated that in the year 1994-95 he was working as Custom House Agent in the name of M/s Universal Cargo forwarders situated at Wazukotak Road, Mumbai and admitted that he has received the documents for clearance of imported items on behalf of M/s Ya Vari So of Moradabad as they were doing the work of only export. He has handed over the documents of import of the firm Ya Wavi So to Mahavir Shipping Agency for doing the job of clearance. He has proved the documents regarding imported brass scrap in respect of the firm M/s Ya Vari So from Ex.PW15/A to Ex.PW15/R. This witness was not cross examined on behalf of the accused persons despite giving opportunity.
26. PW-16 is Smt Vinita Prakash, Computer operator United Bank of India, Moradabad, Lajpat Nagar, UP. She has identified the signatures of Sh M.P Shukla, the then Manager and has proved the debit vouchers made by Sh M.P. Shukla as she had worked under him.
This witness was not cross examined on behalf of the accused persons despite giving opportunity.
27. PW-17 is Sh Iftikar Ahmed. He deposed that he was working as Deputy Manager in United Bank of India, Prince Road, Muradad from June, 1996 to March, 1999. Vide production memo dated 07/10/95, he had supplied bill of entry mentioned therein to Sh. Devinder Singh, DSP, CBI. The aforesaid production memo bears his signature at point A and is Ex. PW17/1 and the documents supplied by him are Ex. PW15/A to PW15/E. Further, vide production memo dated 30/10/96, he had supplied CBI V/s YaWariSo Page 14 of 23 RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 the documents mentioned therein to IO, CBI. The said seizure memo is Ex. PW17/2 bears my signature at point A. The documents supplied by him are Ex. PJ100 to PJ136 and Ex. PW12/7 and PW17/2. Vide production memo dated 26/10/96, he had supplied the certified copy of the FIBC Register maintained in United Bank of India, the said seizure memo is Ex. PW17/3 and the certified copy of the FIBC Register is Ex. PW16/A (running into twelve pages). Each page bears his signature at point A. During cross examination, this witness stated that the vouchers Ex. PJ100, PJ101, PJ124, PJ127, PJ128 were signed by Safia Begum on behalf of firm M/s Ya-Wari-So. He further admitted that debit or credit vouchers are only issued when the account is in operation.
28. PW-18 is Sh Bhagwan Dass. He deposed that he retired from the post of Chief Manager, SBI, RBO, Moradabad, UP on 31.07.2007. From October, 1995 till December, 1998, he was posted there. During that period, he received a letter from CBI dated 14.05.96. In reply thereto, he enclosed the original account opening form of Saving Bank A/C No. 40599 of Sh Syed Ahmed. Said letter has been proved as Ex.PW18/A. He has further identified the signatures of Sh B.K Kapoor, Dy Manager who had worked under him on Ex.PW9/D2. He also proved the certified copy of statement of account No. 40599 of Sh Syed Ahmed khan as Ex.PW18/B. This witness was not cross examined on behalf of the accused persons despite giving opportunity.
29. PW-19 is Sh Layak Ram. He has deposed that he retired from the post of Inspector CBI SC-II Branch New Delhi on 31.05.2010. He had joined the SIU- VIII branch/CBI in the year 1969 and remained there till 31.12.96. In the year 1995, he was posted as SI. Sh Devender Singh was then posted as Dy. SP CBI SIU-VIII New Delhi and he had worked under him and he had seen him signing during the course of his official duty and for that reason, he can recognize his signature. At that time, Sh. Arun Kumar was posted as S.P CBI and looking after the work of SIU-VIII. He CBI V/s YaWariSo Page 15 of 23 RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 further deposed that he was conversant with his signature during course of his official duty and he can recognize the same. RC 5/95 SIU-VIII was registered on the complaint of Sh A.K.M Chankankar, DY. DGFT. The said RC bears the signature of SP Sh. Arun Kumar at point A on each page. The RC was proved as Ex. PW19/A, same was objected to the mode of proving. After registration of the case, the investigation was marked to Sh. Devender Singh DY. SP.
30. In the month of April 1996, he was promoted to the post of Inspector, CBI SIU-VIII. On seeing the document D-3, witness stated that the said document bears the initial of Sh. Devender Singh at point A and his signature at point B. Vide this document Sh. Devender Singh had received the file and marked the same to I/C Malkhana. The said document is mark as X1. Vide seizure memo dt. 27.3.96, certain documents were seized from Sh. V.K Maheshwari. The said seizure memo bears the signature of Sh Devender Singh the then DY. SP at point A and the seizure memo is being exhibited as Ex PW19/B which was objected to by accused on the mode of proving. The arrest memo D-5 of Sh Syeed Ahamed bears the signature of Sh Devender Singh at point A. The arrest memo also bears the signature of Vijay Yadav the then HC CBI at point B which he can recognize as he was well conversant with his signature during his course of duty. The D-5 is being exhibited as Ex PW19/C (objected to as to mode of proof). The specimen writing/signature already Ex PW6/2 to PW6/11 bears the signatures of Sh Devender Singh the then DY. SP at point B on each sheet. The specimen writing/signature S21 to S182 already Ex PW9/C1 to PW9/C81 bears the signatures of Sh Devender Singh the then DY. SP at point B on each sheet. The specimen writing/signature S-183 to S-226 already exhibited PW6/12 to PW6/34 bears the signatures of Sh Devender Singh the then DY. SP at point B on each sheet. The specimen signature/writing S-227 to S-244 already exhibited Ex PW9/C82 to PW9/C90 bears the signature of Sh. Devender Singh the then DY. SP at point B on each sheet.
CBI V/s YaWariSo Page 16 of 23RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 This witness further identified and official stamp of Sh Devender Singh on the documents i.e specimen signatures Ex.PW9/C-91 to C-105, Ex.PW19/D, arrest memo Ex.PW8/A, seizure memos Ex.PW19/E and Ex.PW3/A, production memos Ex.PW6/1, Ex.PW17/2 and Ex.PW17/3, receipt memos Ex. PW19/F, PW1/Z4. The original R.C of the case was proved as Ex.PW19/G. During cross examination, this witness stated that he was never entrusted with the investigation of this case and he has given the statement before the Court on the basis of documents available in the record.
This is all as far as prosecution evidence is concerned in the matter.
Arguments advanced and case law relied upon :
31. I have gone through the evidence led by the prosecution to prove its case as well as heard the argument addressed by both the sides.
32 Initially, the charge was framed against M/s Ya Wari So, Proprietorship concerned firm, Mrs. Safia Begum, Mr. Syed Ahmed Khan and Mr. Gulam Rasool u/s 120B/420/468/471 IPC. It is pertinent to mention that during the pendency of trial accused Safia Begum died and proceedings against her abated on 07.11.2001. Now, two accused namely Syed Ahmed Khan and Gulam Rasool and the firm are facing trial in this case.
33 First of all, I want to decide whether firm can be charged as a accused which was represented by accused Safia Begum (since died). It is matter of record and admitted by the CBI also that Ya-Wari-So is a proprietorship concern whose sole proprietor was Mrs. Safia Begum. The section 305 Cr.P.C. provides the procedure when corporation or registered society is an accused. In clause (1) of section 305 Cr.P.C. the Corporation means an incorporated company or other body of corporate and includes CBI V/s YaWariSo Page 17 of 23 RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 a society registered under the Societies Registration Act, 1860. Admittedly, Ya-Wari-So is not a company nor a society, therefore, this firm cannot be termed as artificial person. However, section 11 IPC defines "person" and states that word "person" includes any company or association or body of persons whether incorporated or not. Therefore, as per section 11 body of persons in whatever name can be charged as an accused. But in the present case Ya-wari-so, firm is a sole proprietorship and this fact is not disputed by CBI also. It cannot be term as association of person as Mrs. Safia Begum was only the sole proprietor of the firm. In the present case the Value Based Advance License was applied in the name of the firm which was represented by Mrs. Safia Begum. Hence, in my view the firm cannot be termed as an accused independently as neither it is an association of persons nor it is an artificial person. The firm is represented through the accused Mrs. Safia Begum (since expired) 34 From the evidence which has come on record, the Value Based Advance License was applied in the name of firm, by Mrs. Safia Begum and accused Syed Ahmed Khan, husband of Mrs. Safia Begum represented and followed up the clearance license in the office of Director General Foreign Trade (hereinafter called DGFT). As all the three accused persons were charged for offence u/s 120B for criminal conspiracy r/w section 420/468/471 IPC, before deciding the liability of offence of these two accused persons who are facing trial, the first question is to be decided whether there was any conspiracy to commit the crime between the accused persons.
35 For a charge of criminal conspiracy, prosecution is under a duty to prove whether there was an agreement to commit the offence between accused persons. To establish charge of conspiracy there must be agreement, there need not be proof of direct meeting or combination, nor need the parties be brought into each other's presence. The CBI V/s YaWariSo Page 18 of 23 RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 agreement may be inferred from circumstances raising a presumption of an common concerted plan to carry out unlawful designs. So again it is not necessary that all should have joined in the scheme from the first, those who come in at later stage are equally guilty, provided the agreement be proved. The conspiracy need not be established by proof which actually brings the parties together, but may be shown like any other fact by circumstantial evidence, detached act of different person against including their written correspondence and entries made by them relative to the main design. In conspiracy direct evidence will be seldom forthcoming and it is necessary to look at the circumstances to see whether conspiracy actually existed. It is not necessary to establish by direct evidence that accused persons commit entries into an agreement to conspire. The agreement of conspiracy lies in the consorted offence and once reasonable ground are made out for belief for the instance of conspiracy amongst the accused, the acts of each conspirator in furtherance of its object are evidence against each of others. Section 10 of Indian Evidence Act states that where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of the, is a relevant fact as against each of the persons believed to so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. Therefore, to prove the charge of conspiracy no direct proof is required which is seldom forthcoming only a reasonable ground to believe is sufficient. Moreover, it is well settled principle of law that a conspiracy is always hatched in secracy.
36 In the present case it is not disputed that accused Syed Ahmed Khan is the husband of Mr. Safia Begum (since expired) who was sole proprietor of the firm namely Ya-wari-so. It has come in the evidence CBI V/s YaWariSo Page 19 of 23 RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 that Mrs. Safia Begum vide her letter dated 13.07.1997 has authorized her husband Syed Ahmed Khan to deposit the application of Value Based Advance License along with required documents in the office of Joint DGFT. Accused Syed Ahmed Khan has pursued the said license in the office of DGFT and collected the license in question. Accused Syed Ahmed Khan has submitted a false bank realization certificate no. NIL dated NIL showing export performance of the firm for the year 1992-93 for Rs. 61,71,920/-. Not only this, the legal undertaking (LUT) was also witnessed by Syed Ahmed Khan. The import documents against the said licenses were retired from the bank by accused Syed Ahmed Khan. PW2 has categorically stated that dak of the firm was returned back as no office was in existence and later on accused Syed Ahmed Khan met him and said that the post by name of above said firm may please be handed over to him. Later on, the said accused Syed Ahmed Khan took one room on rent in Abu Fazal Enclave and displayed the board of above said firm there and after that this witness used to deliver the dak of above said firm on the said room to accused Syed Ahmed Khan present in the court. Witness has also correctly identified the accused in the court. This witness was not cross examined by the accused.
37 PW3 has stated that bank realization certificate Ex. PW1/B for Rs. 61,71,920/-is without date is false and not issued by the bank. Not only this, PW1 has also proved the gate pass for the entry in the office of DGFT in the name of Syed Ahmed Khan Ex. PW1/T and letter authorising the accused Syed Ahmed Khan for collecting LUT is Ex. PW1/U. The signature on the gate pass is also proved by the report of GEQD by PW9.
38 PW 10 has proved that a registered letter was received in the post office in the name of M/s Ya wari so which was delivered by him to accused Syed Ahmed. Both the postmen have identified the accused Syed Ahmed Khan in the court and stated that he is the same accused to whom they have delivered the dak. Not only this, this witness has stated CBI V/s YaWariSo Page 20 of 23 RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 that accused Syed Ahmed Khan has told that he has taken over one room on rent and thereupon has fixed a board in the name of Ya-wari-so for the purpose of delivering the dak and thereafter, all the dak in the name of firm were delivered on the said address.
39 PW9, Mohinder Singh AGEQD has also proved his report and as per his opinion the documents in question were signed by accused Syed Ahmed Khan and Ms. Safai Begum. His report is Ex. PW9/E-1 and Ex. PW9/E-2. His report is positive qua the questioned documents.
40 I am of the considered view that accused Safia Begum (since expired) and accused Syed Ahmed Khan has entered into an agreement of criminal conspiracy to commit offence i.e. to induce the Government to issue Value Based Advance License for import of brass scrapes.
41. Now, I come to accused Gulam Rasool who is also facing trial for the above mentioned offences. As per the case of the prosecution, accused Gulam Rasool is also part of criminal conspiracy to commit the offence and the allegations levelled against this accused by the prosecution are that license resulted in import of brass scrapes worth Rs. 37,61,433.20 P. The imported goods were got cleared from the custom through three Clearing House Agent (CHA). The service charge in this respect were received by one of them M/s Univeral Cargo Forwarders, Mumbai from accused Gulam Rasool, which fact is stated to be connect him with the conspiracy.
42 To prove this fact that Clearing House Agent (CHA) has received the service charges from accused Gulam Rasool, prosecution examined PW15 Sh. Damodar Balaram Jadhav, Custom House Agent, who has admitted that documents for clearing were handed over to him by accused Gulam Rasool. He further stated that he cannot identify Gulam Rasool because long period have been lapsed since 1994. This witness is CBI V/s YaWariSo Page 21 of 23 RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 not cross examined by the accused Gulam Rasool.
43 In criminal trial, the onus is always on the prosecution to prove the charge beyond reasonable doubt. The above named witness did not identify accused Gulam Rasool in the court. The only piece of evidence against accused Gulam Rasool is that this witness has admitted that he has received service charges from Gulam Rasool. But he did not identify the accused for the reasons mentioned above. This accused could have been identified by this witness by disclosing his particulars regarding parentage/address etc., but it was not happened in this case. It is also pertinent to mention that this witness was not cross examined by the CBI for the reasons best known to it. Prosecution was under a duty to prove that goods were got cleared through accused Gulam Rasool s/o late Raise Dullah r/o 7-D/39, Mohalla Kishrol, Moradabad, UP. PW15, Sh. Damodar Balaram Jadhav has only stated that he has received the service charges through Gulam Rasool. Ld. Counsel for accused has contended that there may be any person in the name of Gulam Rasool and on the basis of evidence come on record, it cannot be held that present accused has paid the service charges to CHA. Accused Gulam Rasool has also contended that he has no concern with the present case and he has been falsely implicated. As observed above the onus was entirely on the prosecution to prove whether accused Gulam Rasool was part of the criminal conspiracy by cogent evidence on record but, it has not happened so in the present case. On the basis of evidence placed on record it cannot be held that accused Gulam Rasool s/o late Raise Dullah was part of the criminal conspiracy. In my considered view it will be very unsafe to convict accused Gulam Rasool only on the basis of single piece of evidence where even accused was not identified by PW15 Damodar Balaram Jadhav. Besides this evidence there is no other evidence against accused Gulam Rasool. In my considered view accused Gulam Rasool is entitled to be given benefit of doubt as evidence are deficient against him. Hence, he is acquitted in the present case.
CBI V/s YaWariSo Page 22 of 23RC NO.5(E)/95; CBI/SIUVIII/ND; U/s 120B r/w 420/468/471 IPC DOD:15.04.2014 44 As I have held above that accused Safia Begum (since expired) and Syed Ahmed Khan were part of the conspiracy, now the next question as to what offence they have committed on the basis of evidence proved on record by the CBI. It is not disputed that Value Based Advance License no. P/K/ 2320620 dated 08.09.1993 was issued to the accused no. 2 Safia Begum in the name of her firm Ya Wari So, CBI has proved by adducing cogent evidence on record that for issuance of the license as numbered above, the accused persons were required to file chartered accountant certificate, bank realization certificate and legal undertaking. The evidence has come on record that bank realization certificate was forged as bank witness has categorically stated that it has not been issued by the bank. PW13 Vineet Kumar Maheshwari has categorically stated that export performance certificate was never issued by him and the same was forged. Therefore, I am of the considered view that above mentioned numbered license would not have been issued to the accused persons but for the deception/played with the help of said fabricated documents the Director General Foreign Trade has issued the said license for import of brass scrapes to the tune of Rs. 37,61,437/- and has caused wrongful loss to the tune of Rs. 25,19,200/- for the custom duty to the Government of India. In view of the above reasons, I am of the considered view that accused Safia Begum (since expired) and accused Syed Ahmed Khan has committed offences u/s 120 B r/w section 420/468/471 IPC. As clarified above since accused Safia Begum has expired during the pendency, proceedings against her already abated. Hence, accused Syed Ahmed Khan is convicted for offences u/s 120 B r/w section 420/468/471 IPC.
Announced in the open court (Pooran Chand)
on 15.04.2014 Chief Metropolitan Magistrate:
Central District:Tis Hazari Courts
Delhi
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