Delhi District Court
Cbi vs . G.C.Gupta & Ors. on 16 October, 2014
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
: IN THE COURT OF :
: SH.KANWAL JEET ARORA :
SPECIAL JUDGE, CBI (P.C.ACT), DWARKA COURTS,
NEW DELHI.
In the matter of :
CBI VS. G.C.GUPTA & ORS.
C.C.NO.: 32/2011
FIR NO. : RC7 (E)/2001EOWI/DLI
dated 29.06.2001
Under section : 120B r/w 420, 467,
468 & 471 IPC and 13 (2) read with
13 (1) (d) of the PC Act, 1988
In the matter of:
CENTRAL BUREAU OF
INVESTIGATIONS (C.B.I)
V e r s u s
(i) Girish Chandra Gupta,
S/o. Shri. Mahesh Chandra,
R/o: W86/C33, Saiduljaib Extn.II,
New Delhi
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Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(ii) Vijay Pal Pandhi,
S/o. Late Shri. Moti Ram Pandhi,
R/o: Tower No. 10, Flat No. 203,
Bollywood Heights, Peer Muchhalla,
Jeerakpur.
(iii) Kanwar Vijay Juneja,
S/o. Late Sh. Veer Bhan,
R/o: A26, Saraswati Garden,
New Delhi110015.
(iv) Arvind Kumar Sharma,
S/o. Late Sh. Sambhu Nath Sharma,
R/o: Flat No. 17, Opposite Dusshera Park,
Jawala Heri, Paschim Vihar,
New Delhi110063.
(v) Vijay Dayal,
S/o. Sh. Padam Dayal,
R/o: C2/159, Western Enclave,
Pitampura, Delhi110034.
... ACCUSED PERSONS.
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Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Date of Institution : 28.06.2003.
Date on which the case was : 10.10.2011.
received on transfer in this court
Date of reserving judgement : 10.09.2014.
Date of pronouncement : 16.10.2014.
Memo of Appearance:
(i) Sh.Harish Kumar Gupta, Ld.Special Public Prosecutor for
CBI.
(ii)Sh.Ramesh Gupta, Ld.Senior Advocate along with
Sh.C.L.Gupta, Advocate, Ld. Counsels for accused G.C.Gupta.
(iii) Sh.Sunil Chaudhary, Advocate, Ld.Counsel for accused Vijay
Pal Pandhi.
(iv)Sh.R.K.Kohli, Advocate, Ld.Counsel for accused Arvind
Kumar Sharma, accused K.V.Juneja and Vijay Dayal.
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Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
: J U D G E M E N T :
1. Insurance is an equitable transfer of the "risk
of a loss", from one entity to another in exchange for a
payment, called premium. An insurer is a company selling the
insurance; whereas insured or policy holder, is the person or
entity buying the insurance policy. Marine Insurance covers
the loss to the cargo, transported through any mode of
transport, held between the point of origin and final
destination. The transaction involves the insured assuming a
guaranteed and known relatively small loss, in the form of
premium to the insurer, in exchange for the insurer's promise
to compensate the insured, in case of any financial loss.
2. Last few decades have seen a marked
increase in occurrences of international economic frauds
and the Marine Insurance, has not by any means been excluded
from these trends. In fact Marine Insurance has emerged as
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
one of the primary targets of maritime frauds. Fashionable
method of defrauding the underwriter Insurance Company, is
the presentation of fraudulent documentation to
substantiate a fraudulent claim.
3. One such marine frauds with National
Insurance Company, came to the fore, vide an "Internal
Vigilance Enquiry" held by the officers of the company
culminating in initiation of present proceedings.
4. The precursor of the present case is a written
complaint dated 06.02.2001 of Sh.K.Mahapatra, Chief
Vigilance Officer, National Insurance Company Ltd., Head
Office, Calcutta. On the basis of this complaint, FIR bearing
Number RC7(E)/2001EOW1/DLI on 29.06.2001 was
registered and investigated.
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Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
5. On conclusion of the investigations, CBI had
filed the present charge sheet against accused Girish Chandra
Gupta, Vijay Pal Pandhi, Kunwar Vijay Juneja, Arvind Kumar
Sharma & Vijay Dayal on the allegations that G.C.Gupta, the
then Assistant Manager, National Insurance Company during
the year 199798, had entered into a criminal conspiracy
with Vijay Pal Pandhi, Assistant Manager, Regional Office,
National Insurance Company, Kunwar Vijay Juneja, Proprietor
of M/s Honey International, Arvind Kumar Sharma, Proprietor
of M/s Pooja International and Vijay Dayal, Proprietor of M/s
Vinayak Enterprises, the object of which was to obtain Marine
Insurance claim amounting to Rs.2,48,080/ in favor of M/s
Vinayak Enterprises, on the basis of false and forged
documents, knowing or having reasons to believe the same to
be false and thus to cheat National Insurance Company.
6. It is alleged that the Girish Chandra Gupta
and Vijay Pal Pandhi, being public servants criminally
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CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
misconducted themselves and as members of the conspiracy,
had facilitated accused Kunwar Vijay Juneja, Arvind Kumar
Sharma and Vijay Dayal to submit false and bogus documents
in support of the claim, thereby inducing National Insurance
Company Ltd. to release payment of Rs.2,48,080/ in favor of
M/s Vinayak Enterprises owned by accused Vijay Dayal and
thus obtained pecuniary advantage for him and corresponding
wrongful loss to NIC.
7. Before proceeding further, to delve upon the
matter, it is pertinent to have facts interse as emanating from
the charge sheet, which led to registration of FIR and filing of
the charge sheet by CBI in court, for trial of the accused
persons. The same are as under:
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
F A C T U A L M A T R I X :
8. It is alleged that during the year 199798, a
Marine Transit All Risk Policy for transportation of
consignment of industrial goods from Delhi to M/s Agarwal
Electricals, Dhuri Road, Sangrur (Punjab) was issued vide
policy bearing no. 36099/4500/05/96 under signatures of Smt.
Gopa Sahu, A.O., National Insurance Company Ltd. in favour
of M/s Vinayak Enterprises, Delhi. This policy was issued on
request letter of accused Vijay Dayal dated 01.10.1997 as
proprietor of M/s Vinayak Enterprises, disclosing that
consignment is booked for transportation with M/s Rathore
Freight Carriers, Gandhidham vide GR No.5052.
9. It has been alleged that insured vide letter
dated 27.10.1997 informed National Insurance Company,
regarding nondelivery of consignment, which was received by
V.P.Pandhi, who endorsed the same to Sh. Negi Assistant, to
register the claim. The letter of intimation was signed by Vijay
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Dayal, Proprietor of M/s Vinayak Enterprises. It is alleged
that M/s Pooja International owned by accused Arvind Kumar
Sharma was appointed as tracer / investigator, who after
collecting the documents on 27.10.1997 had submitted his
report dated 16.11.1997 with DOXXIII National Insurance
Company.
10. It is alleged that the claim note was approved
by V.P.Pandhi, Assistant Manager for Rs.2,48,080/ and this
claim amount was paid vide cheque bearing no. 585099 by NIC
in favour of M/s Vinayak Enterprises. It is alleged that the
cheque of claim amount was deposited by accused Vijay Dayal
in his account no.61154 with SBI Jwala Hedi, which was
opened by him, with introduction of coaccused Arvind Kumar
Sharma.
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
11. It is alleged that M/s Honey International,
proprietorship concern of accused K.V.Juneja was appointed as
"recovery agent" and he claiming to have recovered Rs.
24,800/ from the transporter vide Banker's Cheque No.192926
dated 29.12.1997, deposited the same with National Insurance
Company and during investigations, it was revealed that this
Banker's Cheque was got prepared from the account of co
accused Arvind Kumar Sharma, which he had with Punjab and
Sind Bank, Pushpanjali Enclave, Pitampura, Delhi bearing
account no.2017.
12. It is alleged that no company by the name of
M/s Rathore Freight Carriers and M/s Vinayak Enterprises as
well as consignee firm M/s Agarwal Electricals at the given
address were in existence during the relevant period and the
documents submitted in support of the claim were bogus and
forged.
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
13. It is alleged that Sh. Sandeep Maheshwari is
the actual Proprietor of M/s Vinayak Enterprises, who had
denied having taken any insurance policy from DOXXIII, NIC,
Delhi for sending any goods to Sangrur.
14. It is alleged that accused Vijay Dayal,
Proprietor of M/s Vinayak Enterprises, Arvind Kumar Sharma,
Proprietor of M/s Pooja International who was appointed as
Tracer / Investigator and K.V.Juneja, Proprietor of M/s Honey
International, had entered into a criminal conspiracy with the
officers of NIC, Delhi namely G.C.Gupta Assistant Manager
posted in DOXXIII, NIC, Delhi and Vijay Pal Pandhi,
Assistant Manager, Regional Office, NIC, Delhi, during the
year 1997 - 98, the object of which was to cheat National
Insurance Company Ltd., by submitting bogus / fake documents
with National Insurance Company Limited thereby inducing
NIC to release payment to the extent of Rs.2,48,080/ in favor
of M/s Vinayak Enterprises, and to cause wrongful loss to it.
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
15. It is alleged that documents submitted for
obtaining the marine claim of M/s Vinayak Enterprises were
forged and bogus and accused Vijay Dayal, Arvind Kumar
Sharma & K.V.Juneja prepared forged and bogus documents
i.e. GR Receipt, Tracing Report under signatures of different
names.
16. It is further alleged that G.C.Gupta &
V.P.Pandhi, officials of National Insurance Company Ltd. being
public servants had criminally misconducted themselves by
abusing their official position as public servants in order to
cause pecuniary advantage to accused Arvind Kumar Sharma,
being Proprietor of M/s Pooja International, K.V.Juneja,
Proprietor of M/s Honey International and Vijay Dayal,
Proprietor of M/s Vinayak Enterprises, as payment of Rs.
2,48,080/ was released in favor of M/s Vinayak Enterprises
causing wrongful loss to National Insurance Company
Limited.
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Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
17. It is alleged that on conclusion of
investigations, the report was submitted to the competent
authority for the necessary sanction for prosecution against the
public servants ie. accused G.C.Gupta and V.P.Pandhi, which
was granted.
18. It is alleged that all the accused persons have
committed offenses punishable under Section 120B read with
section 420, 467, 468 & 471 IPC and 13 (2) read with 13 (1)
(d) of P.C. Act and also the substantive offences.
19. Whereafter, the present charge sheet was filed
in court against all the accused persons for proceeding against
them, as per law.
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Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
C O G N I Z A N C E O F O F F E N C E :
20. Pursuant to filing of charge sheet and after
perusal of the same in the light of supporting documents,
Ld.Predecessor of this court took cognizance of offence and
accused persons were accordingly summoned.
21. In compliance to the Provisions of Section 207
Cr.P.C, the accused persons were supplied with the copies of
charge sheet and documents relied upon by the prosecution.
C H A R G E :
22. Ld. Predecessor of this Court after hearing
Ld.Defence Counsels for all the accused persons passed orders
on the point of charge on 26.05.2006 forming an opinion that
prima facie case for offences punishable under section 120 B
IPC read with section 420 / 471 read with section 467 / 468
IPC and section 13(2)read with section 13(1) (d) of
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Prevention of Corruption Act have been culled out against
all the accused persons.
23. As per said order Ld. Predecessor of this Court
had opined that substantive charges for offences under section
13(2) read with section 13(1)(d) of Prevention of
Corruption Act was made out against Girish Chandra Gupta
accused no.1 and Vijay Pal Pandhi accused no . 2, the public
servants, substantive charge for offence under section 420
IPC against Kunwar Vijay Juneja accused no. 3, substantive
charge for offence under section 468 IPC against Arvind
Kumar Sharma accused no. 4 and substantive offence under
section 420/471 read with 467/468 IPC against Vijay Dayal
accused no. 5, on the basis of material on record.
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CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
24. Requisite charge for offence under section
120B IPC read with section 420/467/468/471 IPC and under
section 13(2) read with section 13 (1) (d) of Prevention of
Corruption Act, 1988 against all the accused persons was
framed on 30.05.2006.
25. Separate charges for substantive offence under
section 13(2) read with 13 (1) (d) of P.C.Act was framed
against Girish Chandra Gupta i.e. accused no.1 and Vijay Pal
Pandhi i.e. accused no. 2, the public servants.
26. Separate charge for substantive offence under
section 420 IPC was framed against Kunwar Vijay Juneja i.e.
accused no.3.
27. Separate charge for substantive offence under
section 468 IPC was framed against Arvind Kumar Sharma i.e.
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
accused no.4.
28. Separate charge for substantive offence under
section 420 IPC and 471 read with 467 / 468 IPC was framed
against Vijay Dayal i.e. accused no.5.
29. The requisite charges framed against all the
accused persons were read over to them, to which they pleaded
not guilty and all of them claimed trial.
P R O S E C U T I O N E V I D E N C E :
30. Prosecution was thereafter called upon to
substantiate their case by examining their witnesses, listed in
the list of witnesses, filed along with the charge sheet. Availing
the given opportunities, CBI had examined 36 witnesses.
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
31. The witnesses so examined by the prosecution
to substantiate its case can be broadly categorized in Six
Categories:
32. First Category consists of witnesses from
National Insurance Company Ltd. (NIC). All these are
material witnesses examined by the prosecution, who have
deposed about the initiation of inquiry by the officers of
Vigilance Department of NIC, submission of inquiry report.
The witnesses of this category have further deposed that on the
basis of Vigilance report, complaint was lodged with CBI.
These witnesses have further deposed regarding the procedure
as per which a marine policy is issued and the mode and
manner in which claim if any lodged, is processed,
recommended and approved. This category comprises of :
(i) PW2 Sh.K.Mahapatra, Chief Vigilance Officer, NIC, the
complainant ;
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(ii) PW3 Sh.A.K.Seth, Dy. Manager, Assistant Admin. Officer,
NIC ;
(iii) PW4 Sh.Amrit Lal Gambhir, Assistant Admin. Officer,
NIC ;
(iv) PW5 Sh.V.K.Bajaj, Assistant Admin. Officer, NIC ;
(v) PW7 Sh.A.K.Tiwari, Dy. Manager, AO Vigilance, NIC ;
(vi) PW8 Sh.Madan Lal Meena, Assistant, NIC ;
(vii) PW9 Sh.Dharampal Rana, AO, NIC ;
(viii) PW10 Sh.N.K.Dutta, Regional Manager, NIC ;
(ix) PW11 Smt.Gopa Sahu, Assistant Admin. Officer, NIC ;
(x) PW12 Smt.Pooja Soni, Assistant, NIC ;
(xi) PW13 Sh.R.C.Sood, Assistant, NIC ;
(xii) PW15 Smt. Neelam Kataria, Assistant, NIC ;
(xiii) PW17 Sh.Virender Singh Negi, Assistant, NIC ;
(xiv) PW24 Sh.Om Prakash Chaudhary, Sr.Assistant, NIC.
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
33. The witnesses of the first category have
further deposed regarding issuance of cheque to the
concerned parties onces the claim is fully approved. The mode
and manner of appointment of 'tracer' as well as 'recovery
agents'. The witnesses of this category had further deposed
about submission of the records relevant to the present case to
the investigating officer during the course of investigations.
34. Second Category of witnesses examined by
the prosecution are also important ones, as they are from the
banks where National Insurance Company and accused Vijay
Dayal in the name of M/s Vinayak Enterprises were having
their accounts. This category also included the witness from
Punjab & Sind Bank, where accused Arvind Kumar Sharma
was having a bank account wherefrom banker's cheque was got
issued in favor of NIC. This category comprises of :
(i) PW14 Sh.R.Vaidhyanathan, Chief Manager, Indian
Overseas Bank ;
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(ii) PW6 Sh.Dinesh Kumar, Assistant, State Bank of India ;
(iii) PW16 Smt.P.R.Sharma, Dy.Manager,State Bank of India;
(iv) PW29 Sh.A.S.Chauhan,Chief Manager,State Bank of
India.
(v) PW18 Sh.Hardev Singh, Clerk, Punjab & Sind Bank ;
35. These witnesses have proved the bank records
being maintained by their respective banks during regular
course of its business, so far as relevant for the present case.
36. Third Category of witnesses are the ones who
have deposed about the nonexistence of the consignee i.e. M/s
Aggarwal Electricals and transporter M/s Rathore Freight
Carriers. This category includes :
(i) PW20 Sh.Hari Om, Proprietor of M/s Hari Om
Electronics ;
(ii) PW21 Sh.Ashwani Kumar, Proprietor of M/s Singhla
Electronics ;
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(iii) PW22 Sh.H.C.Mehta, Postman, P.O. Sangrur ;
(iv) PW28 Sh.B.S.Bisht, Inspector, CBI.
(v) PW26 Sh.A.S.Jain, Inspector, CBI ;
37. Fourth Category of witnesses are
miscellaneous witnesses of house search and specimen
signatures and those who were joined during investigations by
the Investigating Officer including the CBI officers who on
directions of IO conducted part investigations. This category
includes :
(i) PW19 Sh. P.K.Aggarwal, Dy. Manager, NIC ;
(ii) PW27 Sh. B.M.Pandit, Inspector, CBI ;
(iii) PW23 Sh.T.S.Negi, Banking Advisor with CBI ;
(iv) PW32 Sh.S.S.Atwal, D.S.P. CBI ;
(v) PW33 Sh. S.Balakrishna Shetty, Officer, Vijaya Bank ;
(vi) PW34 Sh. R.C.Madan, Officer, Punjab National Bank ;
(vii) PW35 Sh. R.K.Saran, Additional S.P., EOWI, CBI ;
(viii) PW36 Sh. B.S.Kanojia, Clerk, Syndicate Bank.
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38. Fifth Category of the witness examined by
the prosecution was the one who had given sanction for
prosecution of the accused public servants. This category
includes :
(i) PW1 Sh.Sujit Dass, General Manager, NIC, Calcutta:
who had given sanction for prosecution with respect to
accused Girish Chandra Gupta & Vijay Pal Pandhi ;
39. Sixth Category of witnesses includes those
who remained associated with the investigations of the
present case in one form or the other, including the
Investigating Officer. This category also includes the
Handwriting Expert Witness, who assisted the Investigating
Agency in investigations. This category consists of :
(i) PW25 Sh. Mohinder Singh, Assistant, GEQD, CFSL ;
(ii) PW30 Sh.S.K.Kashyap, Additional S.P., CBI ;
(iii) PW31 Sh.R.P.Kaushal, Additional S.P., CBI.
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Dated : 16.10.2014.
40. The detail deposition of these witnesses is not
being adverted to, as the same shall be referred hereinafter
while dealing with the necessary ingredients of the offence,
with which accused have been charged, visavis the rival
contentions advanced by Ld.Special PP for CBI, as well as by
Ld.Defence Counsels for the accused persons.
41. All the prosecution witnesses were cross
examined in detail by Sh.C.L.Gupta, Sh.Sunil Chaudhary
and Sh.R.K.Kohli, Advocates, Ld.Defence Counsels for the
accused persons. The cross examination of the witnesses is not
being mentioned for the sake of brevity, but the same and
material portion thereof, more particularly, the one referred to
during the course of arguments, shall be adverted to
hereinafter, while appreciating the legal and factual issues
raised on behalf of the accused, alongside appreciation of
evidence in entirety.
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Dated : 16.10.2014.
S T A T E M E N T O F A C C U S E D :
42. Separate statements of all the accused persons
were thereafter recorded under section 313 Cr.P.C., wherein
the prosecution evidence against them was put, which they
denied.
43. On being asked, none of the accused persons
except accused no.1 Girish Chandra Gupta, wished to examine
witnesses in their defence. Accused G.C.Gupta was permitted
to lead evidence in his defence.
D E F E N C E E V I D E N C E :
44. Availing the given opportunities, accused no.1
Girish Chandra Gupta had examined two witnesses in his
defence. Sh.A.K.Goel, posted as Dy. Manager with NIC,
Dehradun was examined as DW1 and Sh.Om Prakash, ASI,
Malkhana Incharge, EOWI, appeared in the witness box as
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DW2.
45. DW1 Sh.A.K.Goel, posted as Dy. Manager
with NIC, Dehradun was examined on behalf of accused no. 1
G.C.Gupta. He appeared in the witness box and submitted
certified copy of circular dated 16.02.1996 with regard to
"Performance of Technical Duties" and the same was proved as
Ex. DW1/A. He also proved on record order dated 19.08.2013
Ex. DW1/B with respect to G.C.Gupta whereby his suspension
order was revoked and he was directed to join DDRO,
Dehradun. On being cross examined by Ld.PP for CBI, this
witness admitted that circular Ex. DW1/A brought by him was
marked to Regional Office, Chandigarh. This witness, during
cross examination by Ld. P.P. stated that he does not have any
knowledge of the conditions mentioned in order Ex. DW1/B.
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Dated : 16.10.2014.
46. Sh.Om Prakash, ASI, Malkhana Incharge,
EOWI, was also examined on behalf of accused no. 1
G.C.Gupta. This witness appeared in the witness box as DW2
and proved on record receipt Ex. DW2/A whereby documents
mentioned therein were returned to G.C.Gupta, which were
taken into possession during investigations, copy of said
counter foil bearing signatures of Sh.Mahesh Chand Gupta is
Ex. DW2/A1, copy of application filed by CBI before concerned
court seeking permission to return the unrelied documents is
Ex. DW2/B, memo dated 01.06.2004 issued by the then S.P.
Sh. Alok Mittal, directing the Investigating Officer to return
the unrelied documents obtaining necessary court permission is
Ex. DW2/C, application seeking court permission to return the
unrelied documents is Ex. DW2/D and copy of order passed by
the concerned court dated 09.06.2004 is Ex. DW2/E. This
witness was not at all cross examined on behalf of CBI.
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
47. As accused no.2 Vijay Pal Pandhi, accused no.
3 Kunwar Vijay Juneja, accused no. 4 Arvind Kumar Sharma
and accused no.5 Vijay Dayal, despite grant of opportunity, did
not wish to examine any witness in their defence. Thus, defence
evidence qua them was closed.
48. I have heard the arguments advanced by
Sh.Harish Kumar Gupta, Ld.Special Public Prosecutor for
CBI. I also had the privilege to hear arguments from
Sh.Ramesh Gupta, Ld.Senior Advocate and
Sh.C.L.Gupta, Advocate on behalf of accused no.1 Girish
Chandra Gupta. I have also heard arguments advanced by
Sh.Sunil Chaudhary, Advocate on behalf of accused
V.P.Pandhi and Sh.R.K.Kohli, Advocate, on behalf of other
accused persons.
C.C.No: 32 / 2011 Page No.28 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
A R G U M E N T S O N B E H A L F O F C B I :
49. It is contended by Ld.Special PP for CBI
relying upon the deposition of the witnesses examined by them
during the course of trial, that prosecution has been able to
establish its case against the accused persons.
50. It is submitted by Ld. Public Prosecutor that
accused public servants had abused their official position and
thus criminally misconducted themselves, so as to cause
pecuniary advantage to their coaccused persons and
corresponding wrongful loss to National Insurance Company
Limited. He further contended that the accused public
servants by abusing their official position had entered into a
criminal conspiracy with the private persons and facilitated
them to have a Marine Insurance Policy and to clear the claim
on the basis of forged documents, knowing or having reasons
to believe the same to be forged ones. He contended that the
insured had obtained a policy on the basis of a bogus
C.C.No: 32 / 2011 Page No.29 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
transaction, knowing or having reasons to believe that no such
goods which were sought to be insured, were transported. He
contended that the consignee as well as transporter were non
existent.
51. It is submitted by him that the insured as well
as other coaccused persons submitted bogus documents in
support of the claim and public servants in furtherance of the
conspiracy, let the same on record and without verifying the
genuineness of the same, passed the claim to cause wrongful
gain to the accused private persons, including the surveyor and
others and corresponding wrongful loss to NIC. He contended
that all the accused persons be accordingly convicted under
relevant provisions of law.
C.C.No: 32 / 2011 Page No.30 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
D E F E N C E A R G U M E N T S :
52. To defend the accused persons, Sh.Ramesh
Gupta, Ld.Senior Advocate along with Sh.C.L.Gupta,
Sh.Sunil Chaudhary, and Sh.R.K.Kohli, Advocates,
Ld.Defence Counsels had led threedimensional attack to the
prosecution case.
53. Ld.Defence Counsels had led a 3 dimensional
attack on the prosecution case. The first dimensional attack
was on legal issues. Second dimensional attack was based on
mixed questions of law and facts. Whereas, the third
dimension of their arguments, revolved around the factual
aspects as has come up on record, on the basis of oral and
documentary evidence, during the course of trial.
54. Ld.Defence Counsels had opened their
arguments raising a LEGAL ISSUE stating that prosecution
C.C.No: 32 / 2011 Page No.31 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
has wrongly invoked Section 13(1) (d) of P.C.Act. It is contended
that as there are no allegations of payment of any illegal
gratification by the insured, surveyor or other private accused
persons to the accused public servants, therefore, the
provisions of Section 13(1) (d) of Prevention of Corruption Act,
cannot be invoked.
55. Second dimensional attack of Ld.Defence
Counsels was on mixed questions of "Law and Facts". The
same was with respect to the sanction for prosecution granted
against the public servants. The arguments advanced on this
aspect were twofold ie. :
(i) Incompetence of Sanctioning Authority: The authority
which had passed the sanction orders qua the public servants
was not competent to pass the same, therefore, the sanction
orders are bad in law.
C.C.No: 32 / 2011 Page No.32 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(ii) Nonapplication of mind : Even if it is assumed that the
sanctioning authority was competent to pass the sanction
orders, the same were passed in a mechanical manner and
without application of mind as the sanctioning authority has
failed to pass sanction order against other similarly situated
officers who had performed the same functions, as has been
ascribed by the prosecution to accused G.C.Gupta and
V.P.Pandhi.
56. It is contended that as the sanction orders
were bad in law, therefore, the whole proceedings have become
nonest.
57. Third dimensional attack on the prosecution
case raised by Ld.Defence Counsels was on factual aspects, vis
avis the necessary ingredients of the offences with which
accused persons were charged.
C.C.No: 32 / 2011 Page No.33 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
58. These contentions raised by Ld.Defence
Counsels are divided in 2 categories. The first one being on
behalf of the accused PUBLIC SERVANTS, which are as
under :
(i) No meeting of minds : That, there is no evidence brought
on record by the prosecution depicting any meeting of mind,
amongst the accused public servants on one hand and the
private persons ie. insured, surveyor and recovery agents on
the other hand, therefore, there is no question of any
conspiracy whatsoever between these two set of accused.
(ii) No overt act on the part of public servants : That, the
accused public servants had not done anything, in order to
achieve the socalled object of conspiracy as they were not party
to any such conspiracy / offence.
C.C.No: 32 / 2011 Page No.34 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(iii) Official discharge of duties: That, the accused public
servants did, what was their official duty and had only
processed / recommended / passed the claim on the basis of the
recommendations / notes prepared by the subordinate staff.
(iv) No knowledge about forgery: That, the accused public
servants did not have any knowledge that the documents
annexed with the claim form by the insured were forged ones.
(v) No duty of the public servants for verification of
documents: That, even otherwise, it was not the duty of
accused public servants to verify the genuineness of the
documents. Further, they had no reason to doubt the
genuineness of the documents so annexed with the claim form.
(vii) Unfair Investigations : That, the investigations have
not been conducted by the investigating agency in a fair
manner as "pick and choose policy" was adopted and the
C.C.No: 32 / 2011 Page No.35 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
officers who had performed similar roles were not made
accused and the present accused has been wrongly and falsely
implicated, therefore they be acquitted of the charge.
59. Second category of the contentions were
advanced by Sh.R.K.Kohli, Advocate, Ld.Defence Counsel for
accused Accused Arvind Kr.Sharma; K.V.Juneja, and Vijay
Dayal on factual aspects visavis the necessary ingredients of
the offences, with which these accused persons were charged.
The same are as under:
(i) No meeting of mind: It is contended on behalf of all
private persons that there is no evidence on record to show any
meeting of minds amongst the private persons or between them
and the public servants.
(ii) ) Survey / Tracing Report not relevant for passing of
the claim: It is contended by Sh.R.K.Kohli, Advocate that the
survey report is not binding on the insurance company for the
C.C.No: 32 / 2011 Page No.36 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
purposes of processing or passing any claim.
(iii) Recovery amount can come from the recovery
agents: It is contended by Sh.R.K.Kohli, Advocate,
Ld.Defence Counsel for accused K.V.Juneja that as per the
regular practice and procedure, the recovery agents negotiate
with the transporter with respect to more than 1 case of a
particular insurance company and at times, with respect to
cases of more than 1 insurance company, with which he is on
the panel. He contended that the recovery agents used to get a
consolidated amount from the transporter and subsequently
can deposit the proportionate recovery amount so collected with
the insurance company from his own account. He contended
that this being the regular practice / procedure, therefore no
offence whatsoever is stated to have been committed by his
client.
C.C.No: 32 / 2011 Page No.37 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(iv) No mensrea / involvement of accused Vijay Dayal:
Sh.R.K.Kohli, Advocate Ld.Defence Counsel had contended
that prosecution has failed to connect accused Vijay Dayal with
any of the offence with which he has been charged. It is
contended by Ld.Defence Counsel that the evidence falls short
of proving the necessary ingredients of the offence.
(v) Nonexamination of material witnesses: Ld.Defence
Counsel had contended that prosecution has failed to examine
material witnesses for proving that transporter and consignee,
were not in existence as has been claimed by them, therefore,
accused who have been falsely implicated in the present case,
should be acquitted.
C.C.No: 32 / 2011 Page No.38 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
A P P R E C I A T I O N O F E V I D E N C E A N D
R I V A L C O N T E N T I O N S :
60. Before adverting to appreciate the prosecution
as well as defence evidence which has come up on record visa
vis the charges against the accused persons, as well as the
arguments advanced on the mixed questions of facts and law, I
deem it appropriate to deal with that contentions first which
have been raised by Ld.Defence Counsels, on purely legal
aspects, in their quest to demolish the prosecution case at its
threshold.
61. The opening contention of Ld.Defence Counsels
was that, there is no averment or allegation in the entire
charge sheet of extension of any illegal gratification on the
part of insured or other private accused persons, to the accused
public servants, therefore by no stretch of imagination, the
provisions of Section 13(1) (d) of Prevention of Corruption Act,
could have been invoked. It is contended that on this ground
C.C.No: 32 / 2011 Page No.39 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
itself, the case cannot proceed and accused persons should be
acquitted.
62. In order to deal with this contention of
Ld.Defence Counsels, it is pertinent to make a mention of the
relevant provisions of Section 13 (1) (d) of Prevention of
Corruption Act. The same is as follows :
Section 13: Criminal misconduct by a public servant :
(1) A public servant is said to commit the offence of criminal
misconduct,
(a) . . .
(b) . . .
(c) . . .
(d) if he,
(i) by corrupt or illegal means, obtains for
himself or for any other person any
valuable thing or pecuniary advantage ; or
(ii)by abusing his positioning as a public
servant, obtains for himself or for any
other person any valuable thing or
pecuniary advantage ; or
(iii)while holding office as a public
servant, obtains for any person any
valuable thing or pecuniary advantage
without any public interest ; or
(e) . . .
C.C.No: 32 / 2011 Page No.40 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
63. The phrases namely "corrupt , illegal means"
and "by abusing his position as public servants" are different
categories of corrupt practices, which are conjuncted by the
words "or" and not by the conjunction "and". This in itself
indicates that these three different categories are alternate
misconduct on the part of public servant and either of these
three practices, if done by public servant then the same can
constitute an offence under this Section.
64. The phraseology "By abusing his official
position as Public Servant" covers the acts done by the public
servant otherwise than by corrupt or illegal means. The gist of
the offence under this clause is, that a public officer abusing
his position as "public servant" obtains for himself or for other
person, any valuable thing. The word "abuse" used by the
Legislature means "misuse", ie. using his position for
something which is not intended. That abuse of the position
C.C.No: 32 / 2011 Page No.41 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
may be by corrupt or illegal means or otherwise than those
means". In view thereof, the Legislature never intended that
there has to be an express evidence of illegal gratification
before invocation of this section. In case, there are instances
and allegations that a person has abused his position as a
public servant, in order to cause advantage to anyone, that in
itself is sufficient for invocation of this Section.
65. Meaning thereby that in absence of any
allegations by the prosecution on the part of public servant of
demand and acceptance of illegal gratification for showing any
favor to a private individual, the provisions of Prevention of
Corruption Act cannot be invoked, as urged by Ld.Defence
Counsels, to my mind is farfetched and devoid of merits. As
there are allegation of abuse of official position by the public
servants in order to cause pecuniary advantage to their co
accused, this clause of P.C.Act very much comes into play.
C.C.No: 32 / 2011 Page No.42 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
66. In view thereof, the contention advanced by
Ld.Defence Counsels that in the present case there are no
allegations on record that any of the public servants, who are
accused herein had adopted any corrupt or illegal means or
have obtained any pecuniary advantage for themselves, thus
section 13(1) (d) of P.C.Act cannot be invoked, is rejected.
However, the prosecution has to establish the necessary
ingredients of the offences, with which the accused persons
have been charged, on the basis of the evidence which has come
up on record, with which I shall be dealing hereinafter.
67. Having dealt with the contentions urged by
Ld.Defence Counsels on behalf of the accused persons on purely
legal grounds, I shall now delve upon to consider the
arguments raised involving mixed question of "Law and
Facts".
C.C.No: 32 / 2011 Page No.43 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
68. Leading a double pronged attack on the prosecution case, Sh.Ramesh Gupta, Ld.Senior Advocate along with Sh.C.L.Gupta and Sh.Sunil Chaudhary, Advocates, Ld.Defence Counsels appearing on behalf of the public servants, contended that the provisions of Section 19 of Prevention of Corruption Act is a mandatory provision and the Court does not have the jurisdiction to take cognizance when the "sanction" under this provision is granted in mechanical manner and without application of mind and that too, by an authority which was not competent to grant the same.
69. Ld.Defence Counsels contended that the sanction order passed by PW1 Sujit Dass against accused G.C.Gupta ie. Ex.PW.1/A ; and accused V.P.Pandhi ie. Ex.PW.
1/C are bad in law on 2 grounds. It is contended that PW1 was not the competent authority to pass the sanction order and secondly, the same is invalid and bad in law, as it was passed C.C.No: 32 / 2011 Page No.44 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
in a mechanical manner and without application of mind. It is contended that the sanctioning authority has failed to take into consideration the fact that other officers who have issued the policy or recommended / approved the claim, were not proceeded against and no sanction for prosecution, was granted against them.
70. I have considered the submissions advanced on this aspect and have considered the relevant provisions of law in the light of the precedents relied upon by Ld.Defence Counsels to substantiate their contentions..
71. For administration of Criminal Justice System, an onerous duty is cast on the Courts, to effectively tackle and control the endemic of offences, so as to prevent the society from drifting towards savage society. A balanced approach is required to be adopted by the courts giving strict interpretation to the Clauses of the Penal Provisions and C.C.No: 32 / 2011 Page No.45 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
simultaneously being mindful of the inviolable Constitutional Rights granted to the accused, so as to ensure fair trial.
72. Subjecting any individual to undergo "criminal trial" is an encroachment / restriction on his fundamental right to "life and liberty". As per the constitutional mandate enshrined in Article 21 of Constitution of India, granted to each and every citizen of the country, no one can be deprived of his right to life and liberty, except by the due "process of law". Thus, if anyone accused of any offence, is to be subjected to criminal trial, then the same has to be in conformity to the procedures established by law. As whenever a particular procedure is prescribed by law, then all other procedures to do the same are proscribed.
73. Public servants in whatever capacities they are holding their offices, are supposed to give effect to the objects for which their organization is functioning, so that the C.C.No: 32 / 2011 Page No.46 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
benefits arising out of their actions, should benefit their country in general and their organization in particular. To achieve the object, for which the policies and plans of the organization are put in place, all the public servants are expected to discharge their functions with utmost propriety and all fairness. Experience however has revealed that many public servants, instead of using their good offices for the public good, misuse the same for their personal benefits by indulging into corrupt and improper practices.
74. Legislature in its wisdom in order to curb such corrupt and improper practices had brought "Prevention of Corruption Act, 1988" on the Statute Book for not only, punishing those who had violated the very oath of honesty and sincerity with which they had assumed their office and indulged in 'corrupt practices', but also to deter the others from treading the path of dishonesty.C.C.No: 32 / 2011 Page No.47 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
75. Being aware of the fact that some of the honest public servants may be dragged into vexatious and uncalled for prosecution, the Legislature had in Section19 of Prevention of Corruption Act, incorporated a "saviour clause" so as to protect them and to encourage them to continue with the good work. But for this clause, the government process would become 'static' as public servants would hesitate to take even the most honest, bonafide and genuine decisions fearing harassment from frivolous and uncalled for allegations.
76. To balance these two conflicting interests, one of which is to give effect to the very object for which Prevention of Corruption Act was brought on the Statute Book to deal with the guilty sternly and on the other hand, to give effect to the shield provided by the Legislature to protect honest and diligent public servants from vexatious and uncalled for prosecution, the onerous duty has been placed on the Courts, which are an important cog in the wheels of Administration of C.C.No: 32 / 2011 Page No.48 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Justice. The courts are obligated to strike balance between these two conflicting interests in such a manner, so that majesty of "Rule of Law" is neither undermined nor defeated.
77. Before proceeding to advert upon the submissions advanced, it is pertinent to make mention of Section 19 of Prevention of Corruption Act, which is reproduced as under: SECTION 19 : PREVIOUS SANCTION NECESSARY FOR PROSECUTION :
(1) No Court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government ;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government ;C.C.No: 32 / 2011 Page No.49 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under subsection (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) :
(a) No finding, sentence or order passed by a Special judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under subsection (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby ;
(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in failure of justice;
C.C.No: 32 / 2011 Page No.50 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under subsection (3) whether the absence thereof, or any error, omission or irregularity in, such sanction has occasioned or resulted in failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation - For the purposes of this Section,
(a) error includes competency of the authority to grant sanction ;
(b) a sanction required for prosecution includes reference to any requirement that the prosecut ion shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
78. The object and character of this provision is evidently emanating from the words used in the Section by the Legislature : "No Court shall take cognizance of such offence, except with the previous sanction". Use of words C.C.No: 32 / 2011 Page No.51 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
"No" and "shall" makes it abundantly clear that the bar on the exercise of power of the Court to take cognizance of an offence is absolute and complete. As per Black's Law Dictionary, the word "cognizance" means jurisdiction or the exercise of jurisdiction. In common parlance, it means "taking notice of".
In view thereof, in absence of the sanction, the court is precluded from even taking notice of the offence or exercising its jurisdiction, in respect of a public servant.
79. Thus, the provision has been imparted a mandatory character and has been held so by various authoritative pronouncements by Hon'ble Apex Court. While holding grant of sanction to be a prerequisite or sinequanon for taking cognizance, regard is to be had to the fact that it can be a shield to discourage vexatious prosecution of innocent public servant, but it should not be permitted to be used as a weapon against the prosecution by the guilty. C.C.No: 32 / 2011 Page No.52 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
80. The protection given by the Legislature is to be extended to the extent provided therein and it cannot and should not be stretched elastically to cover those, who are not intended by the Legislature to be under the protective umbrella. As to my mind the Legislature by enacting any provision in the Act, which prohibits the taking of cognizance of offence by a Court, unless certain conditions are complied with, did not purport to condone the offence. Thus, such provision is to be construed on the basis of words used therein, without importing the words, which are not there.
81. In the backdrop of above, I shall consider the arguments advanced by Ld.Defence Counsels raised by them to challenge the authenticity of the sanction order Ex.PW.1/A passed qua G.C.Gupta and Ex.PW.1/C qua accused V.P.Pandhi by PW1 Sh.Sujit Dass, the then General Manager, NIC. C.C.No: 32 / 2011 Page No.53 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
82. Firstly, I shall consider the arguments advanced on the aspect of "competence of the sanctioning authority" to pass the sanction orders.
83. Though, Ld.Defence Counsels during the course of arguments had contended that PW1 was not the competent authority to pass sanction orders against G.C.Gupta, who at relevant point of time was posted as Assistant Manager NIC, and V.P.Pandhi who was also posted as such. However, nothing has been brought on record either during the cross examination of PW1 or during the course of arguments on behalf of the accused persons, to challenge the competence of PW1, the then General Manager NIC, with respect to passing of the sanction orders.
84. In terms of Section 19 (1) (c) of the Act, the sanction for prosecution has to be granted by an authority, which is competent to remove the said person from his office. C.C.No: 32 / 2011 Page No.54 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
85. The question of competence of the "appointing / sanctioning authority" came up for consideration before Hon'ble Supreme Court in case titled "Mohd.Iqbal Ahmed Vs. State of Andhra Pradesh", reported as AIR 1979 SC 677, wherein it was held that :
"... The authority which would be competent to grant sanction is the authority which is entitled to remove from service the public servant against whom sanction is sought".
86. Admittedly, in the present case, PW1 Sujit Kumar Dass, was posted as General Manager NIC at the relevant point of time. Being General Manager, it was PW1 who was the authority capable of removing the officers of the rank of Assistant Manager from the services. Nothing has been put to this witness during his cross examination either on behalf of accused G.C.Gupta or on behalf of accused V.P.Pandhi, even to suggest that General Manager was not the C.C.No: 32 / 2011 Page No.55 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
competent authority to remove an officer of the rank of Assistant Manager from his office.
87. Thus PW1 being General Manager was the competent authority to remove an officer of the rank of Assistant Manager, and thus had the requisite competence to pass the sanction orders qua accused no.1 and 2, which he did.
88. In view thereof, I do not find any grounds in this contention of Ld.Defence Counsels that PW1 was not having competence to pass the sanction orders Ex.PW.1/A and Ex.PW.1/C.
89. This has brought me down to the second limb of the contentions raised by Ld.Defence Counsels stating that sanction orders were passed by PW1 without application of mind. It is contended by Ld.Defence Counsels relying upon the cross examination of PW1 that he had failed to look into the C.C.No: 32 / 2011 Page No.56 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
relevant documents and had merely passed the sanction orders at instance of CBI without taking into consideration that no sanction for prosecution is passed by him against the other officers, who had performed similar roles. It is further contended that sanctioning authority had passed the sanction order without referring the matter to Chief Vigilance Officer and without getting the opinion of CVC on the same.
90. I have considered the submissions advanced and have perused the sanction orders as well as deposition of PW1 Sh.Sujit Kumar Dass.
91. It has been held by Hon'ble Apex Court time and again that the Court where the question of validity of sanction on the grounds of 'non application of mind' is raised, has to see as to whether the sanctioning authority did consider all the evidence collected by the investigating agency ie. oral as well as documentary.
C.C.No: 32 / 2011 Page No.57 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
92. Hon'ble Apex Court in a recent case titled "State of Maharashtra Vs. Mahesh G.Jain" reported as Criminal Appeal no.2345 of 2009 decided on 28.05.2013 had aptly summed up the principles and guidelines which are required to be followed to decide the question which inundates the Trial Court, challenging the sanction order.
93. Hon'ble Apex Court in this judgement had considered all the previous laws laid down by it, including the cases referred to and relied upon by Ld.Defence Counsel mentioned hereinabove.
94. Hon'ble Apex Court after appreciating the earlier precedents on the subject, had culled out the guiding principles in Para 13 of its Judgement, which are reproduced as under : C.C.No: 32 / 2011 Page No.58 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(a) It is incumbent on the prosecution to prove that valid sanction has been granted by Sanctioning Authority after being satisfied that a case for sanction has been made out.
(b) The Sanction Order may expressly show that the sanctioning authority has perused the material placed before him and after consideration of the circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing the evidence that the material was placed before the Sanctioning Authority and his satisfaction was arrived at, upon perusal of the material placed before him.
(d) Grant of Sanction is only an
administrative function and the
sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the Sanctioning Authority cannot be gone into, by the Court, as it does not sit in Appeal over the Sanction order.
C.C.No: 32 / 2011 Page No.59 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(f) If the sanctioning authority has perused all the material placed before him and some of them have not been proved, that would not vitiate the order of sanction.
(g) The order of sanction is a pre requisite, as it is intended to provide a safeguard to the public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity.
..... (emphasis supplied).
95. In view of these guiding principles, more particularly the principle mentioned at Point (d) (e) (f) and
(g) above, the adequacy of the material placed before the Sanctioning authority is not required to be gone into, as this Court is not sitting in appeal over the sanction order. C.C.No: 32 / 2011 Page No.60 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
96. The discretion whether to grant or not to grant the sanction order lies with the sanctioning authority and it is the subjective opinion of the said administrative authority, which it has to arrive, on the basis of material placed before it.
97. The sanctioning authority was under an obligation to see the material placed before it by CBI, collected during the course of investigations and to arrive at a conclusion as to whether the same is sufficient and requires grant of sanction for prosecution of accused persons or not.
98. In view thereof, it is to be seen as to whether the complete record of the investigations, including oral and documentary evidence collected was or was not placed before the sanctioning authority.
99. It is apparent on perusal of cross examination of PW1 conducted on behalf of accused G.C.Gupta that he had C.C.No: 32 / 2011 Page No.61 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
perused the report of CBI forwarded by S.P., which contained calendar of events, gist of allegations as well as opinion of CBI, before passing the sanction order. The factum of placing the complete record after conclusion of the investigations before the competent authority, has also been deposed so, by the investigating officer ie. PW31 R.P.Kaushal. No suggestion, whatsoever was given either to PW1 or to PW31 on behalf of the accused persons, that the same was either not produced before PW1 or he had not applied his mind on the same. PW1 during the course of his cross examination, did state that he after perusing the material collected by the investigating agency had passed the sanction order.
100. The other contention of Ld.Defence Counsels that the sanctioning authority had passed the sanction order without referring the matter to CVC, as per notification no. 98 / VGL/62 dated 15.10.2003, to my mind is also devoid of any merits on 2 counts. Firstly, the sanction order Ex.PW.1/A and C.C.No: 32 / 2011 Page No.62 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Ex.PW.1/C were passed by the sanctioning authority on 17.06.2003 ie. much before the date of notification, relied upon by Ld.Defence Counsels. Secondly, because Section 19 of the Act, as interpreted by Hon'ble Apex Court makes it obligatory on the part of sanctioning authority to grant or not to grant the same on the basis of its own subjective satisfaction & without any influence from any other authority.
101. In view thereof, there was no requirement of referring the matter to CVC by the sanctioning authority, for getting its opinion before passing the sanction orders, as has been urged by Ld.Defence Counsels.
102. Another facet to this argument advanced by Ld.Defence Counsels was that the sanction orders are bad as no sanction for prosecution was passed by PW1 against other similarly situated officers. This contention of Ld.Defence Counsels does not hold waters as the sanctioning authority C.C.No: 32 / 2011 Page No.63 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
before whom the material is placed by CBI after investigations, is required to form an opinion qua those persons only, for whom sanction is sought, as to whether the same is to be granted or not. This is beyond the scope / purview and jurisdiction of sanctioning authority to pass sanction for prosecution against other officers qua whom neither any investigations were done, nor any evidence was collected nor the sanction was sought.
103. Even otherwise, the Legislature in order to stop unjustified claims raised on behalf of public servants to derive undue advantage of requirement of sanction have incorporated Section 19(3) of Prevention of Corruption Act which if read with section 465 of Cr.P.C, makes it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent Court, unless in the opinion of the Court, a failure of justice has been occasioned.
C.C.No: 32 / 2011 Page No.64 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
104. Hon'ble Apex Court in a recent case titled "State of Bihar & Ors. vs. Rajmangal Ram" in Criminal Appeal No.708 of 2014, arising out of SLP (Crl.) No.8013 of 2012, decided on 31.03.2014 ; has held that the Sanction Order cannot be held to be invalid and proceedings cannot be interdicted without giving any finding to the effect that a failure of justice as a result thereof, has occasioned.
105. Merely because any error or irregularity has occurred in the sanction order, the same is not to be considered fatal, unless it results in failure of justice.
106. In the present case, as we are at the fagend of the trial and accused public servants have already undergone the trial, further I have not found any error or omission in the sanction orders passed qua them by the sanctioning authorities against the accused public servants, resulting in any failure of justice.C.C.No: 32 / 2011 Page No.65 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
107. Thus, I do not find any merits in the contentions advanced by Ld.Defence Counsels to challenge the authenticity of the sanction orders ie. Ex.PW.1/A and Ex.PW.
1/C, which to my mind have been passed by the sanctioning authority with due & proper application of mind.
108. Having held that the sanction for prosecution granted against the public servants was valid, I shall now delve upon the contentions of Ld.Defence Counsels on factual aspects, visavis the necessary ingredients of the offences, with which the accused persons were charged.
109. To better appreciate the deposition of prosecution witnesses in the light of contentions advanced, it is pertinent to chalk out the procedure for processing of "Marine Claims". The same as emanating out of material on record, in the form of documentary and oral evidence as per the deposition of PW10 N.K.Dutta, PW11 Gopa Sahu, PW3 C.C.No: 32 / 2011 Page No.66 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
A.K.Seth, PW4 A.L.Gambhir, PW7 A.K.Tiwari and PW8 Madan Lal Meena, which has not been disputed, even by the accused persons, is as under: Procedure for processing Marine Claims:
(a)Whenever any commercial transaction takes place between two parties located at different places for purchase of goods, the same are required to be transported by the seller to purchaser.
(b) These goods during the course of transportation, can be insured, for which Marine Open Policy is issued against premium.
(c) The seller is known as "consignor" whereas, its recipient or purchaser is known as "consignee".
(d) Either of the two, can pay the premium for taking the "Marine Insurance Policy" and the said party is known as "insured" whereas, the company is known as "insurer".
(e) At the time of taking the policy, the insured submits the proposal along with requisite documents on which insurer, calculates the premium and after collection of the premium, a Cover Note is issued.
(f) Thereafter, the insurer issues the "Insurance Policy". C.C.No: 32 / 2011 Page No.67 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(g) If, during subsistence of policy, goods are either stolen or damaged during transit, a claim is lodged either to the "Policy Issuing Office" or to any nearest office on which a "surveyor" from the approved list of that branch, is appointed by the Branch Manager, to assess the loss.
(h) The surveyor so appointed, then submits a report along with the photographs and relevant documents.
(i) Concerned Clerk posted with NIC, then processes the claim and submits it to its higher authority, who recommends the claim and puts the same up for approval of the competent authority.
(j) After approval of the competent authority, cheque is prepared by the accounts department, which is signed by 2 authorized signatories, whereafter it is handed over to the "insured / claimant".
(j) The Surveyor's Fee is also paid at the same time while settling the claim, as at times, surveyor receives his fee from the insured or the party, who had lodged the intimation of loss.
(k) If the right of recovery from the carrier / transporter is protected, the Branch Manager, after settling the claim can appoint a recovery agent, who then recovers whatever recovery, which can be affected from the transporter and deposits it with the insurance company, after getting approval of the same from the insurance company. C.C.No: 32 / 2011 Page No.68 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
110. In view of abovementioned duties and obligations which these public servants, being responsible officers of National Insurance Company, were required to fulfil, it is to be seen whether they had performed their duties, as was expected from them or whether the actions and omissions of theirs were laden with any dishonest intention, in order to cause any pecuniary advantage to their coaccused persons for which regard is to be had to the evidence that has come up on record.
111. Prosecution evidence which has come up on record, visavis each of the accused facing trial is required to be considered. Conspiracy is the most pivotal part of the prosecution case, which is the primary charge against the accused persons, being axis around which revolves the other charges. As per the case of prosecution, the officers of NIC being public servants, had entered into a criminal conspiracy with the private persons, object of which was to cheat NIC. C.C.No: 32 / 2011 Page No.69 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
112. It is contended by Ld.Prosecutor that the public servants knowing or having reasons to believe that the documents submitted for issuance of policy as well as those submitted in support of the claim to be forged ones, have facilitated the submission of same by or on behalf of the insured, to them on the basis of which the claim was passed, which led to release of payment by NIC to the private persons and thus they have caused pecuniary advantage to them and corresponding wrongful loss to NIC.
113. Ld.Public Prosecutor made an endeavour to invoke Section 10 of Indian Evidence Act. He, in order to buttress his arguments, contended that all the conspirators should be made constructively liable for the substantive offences committed, pursuant to the conspiracy on the basis of the "Principle of Agency". He contended that the public servants had entered into a conspiracy with the private persons, therefore the acts done by the private persons, C.C.No: 32 / 2011 Page No.70 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
pursuant to the conspiracy, in contemplation of law, should be treated as committed by each one of them, therefore all of them should be held responsible and liable for the same.
114. I have considered the submissions advanced by Ld.Public Prosecutor. In order to appreciate the same, it is pertinent to make mention of Section 10 of Indian Evidence Act, which reads as under : SECTION 10 THINGS SAID OR DONE BY CONSPIRATOR IN REFERENCE TO COMMON DESIGN - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.
C.C.No: 32 / 2011 Page No.71 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
115. Bare perusal of this Section makes it evident that there is no such deeming provision in it, as has been contended by Ld.Prosecutor. No doubt, Section 10 rests on the 'Principle of Agency', but it lays down only a rule of relevancy. As per the provisions of this Section, anything done or said by one of the conspirators in reference to the common intention becomes "relevant fact" as against each of the conspirators, to prov two things :
(i) Existence of the conspiracy ; and
(ii) That, they were party to this conspiracy.
116. This has been held so by Privy Counsel in case titled "Mirza Akbar vs. King Emperor" reported as AIR 1940 PC 176. This interpretation has been followed by Hon'ble Apex Court in catena of decisions.
C.C.No: 32 / 2011 Page No.72 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
117. Hon'ble Mr.Justice Jagannath Shetty had analyzed this Section in case titled "Kehar Singh & Ors. v/s State (Delhi Administration)" reported as 1988 (3) SCC 609, as under : "From an analysis of the section, it will be seen that Section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his coconspirator. One such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it."
C.C.No: 32 / 2011 Page No.73 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
118. In view thereof, distinction was made between the conspiracy and the offence (s) committed, pursuant to the conspiracy. It is only in order to prove the existence of conspiracy and parties to the conspiracy, that this rule of evidence, can be put in service.
"Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy."
119. In view thereof, I do not find any merits in the contentions advanced by Ld.Public Prosecutor as the "Theory of Agency" cannot be extended thus far, that is to say, to hold all the conspirators guilty of actual offence(s) committed in execution of common design, if such offence(s) were committed by one of them, without participation of others. C.C.No: 32 / 2011 Page No.74 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
120. Whether or not, conspirators will be liable for substantive offence other than the conspiracy and if so, to what extent, has to be proved on record by the prosecution on the basis of evidence which, I shall be adverting to hereinafter.
121. However, before going that far, I would hasten to add that prosecution has first to establish that all the accused persons facing trial, were in fact party to the alleged conspiracy with which they have been charged.
122. In an attempt to demolish the prosecution case, Sh.Ramesh Gupta, Ld.Senior Advocate along with Sh.C.L.Gupta, Sh.Sunil Chaudhary and Sh.R.K.Kohli, Advocates vociferously contended during the course of arguments, that there is nothing on record brought by the prosecution during the course of evidence, from which it can be inferred that there was any meeting of mind between the public servants and the other accused persons. It is further C.C.No: 32 / 2011 Page No.75 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
submitted by Ld.Defence Counsels of all the accused persons, that the conspiracy can only be established on the basis of circumstantial evidence. Further, the circumstances proved, should be such that they must form a chain of events, leading to an irrepressible conclusion about guilt of the accused.
123. In support of their contentions, Ld.Defence Counsels had relied upon the law laid down in cases titled as under : (i )"Kehar Singh & Ors. vs. State" (supra) ;
(ii) "K.R.Purushotnaman vs. State of Kerala"
reported as 2005 (3) JCC (SC) 1847 ;
(iii) "Baldev Singh vs. State of Punjab";
reported as 2009 (3) SCC (CRI.) 66.
(iv) "John Pandian vs. State"
reported as 2011 (1) Crimes SC 1.C.C.No: 32 / 2011 Page No.76 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
124. I have considered the submissions advanced and have perused the law laid down by Hon'ble Apex Court in the precedents relied upon by Ld.Defence Counsels. There is no denying the fact that Hon'ble Apex Court while holding that the offence of conspiracy is committed in secrecy and can be proved only by circumstantial evidence has held that these circumstances should be proved, beyond reasonable doubt, leading to the guilt of the accused.
125. Section 120A IPC defines "criminal conspiracy". Accordingly to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal, by illegal means such an agreement is designated as "criminal conspiracy".
126. In view of this definition, the gist of the offence is "an agreement to break the law". Parties to such an agreement are guilty of criminal conspiracy, though the illegal C.C.No: 32 / 2011 Page No.77 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
act agreed upon by them to be done, has not or could not be done. It is not necessary that all the parties to such an agreement should agree to do a single illegal act. It may comprise of commission of a number of acts. It is not necessary that all the conspirators must know each and every detail of the conspiracy.
127. Conspiracy is seldom an open affair. Its existence and objects can only be deduced from circumstances of the case and conduct of the accused, who are party to such conspiracy.
128. As Conspiracy has to be and can only be inferred from the physical manifestation of conduct of the conspirators / accused. Thus, to deduce actual meeting of minds amongst the accused person to find out transmission of thoughts, the actual words used by them during communication, are to be considered.
C.C.No: 32 / 2011 Page No.78 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
129. The conduct of the conspirators / accused are to be deciphered not only from the actual words spoken by them but also from their body language, mannerism and behaviour by which they intervene in the conversation taking place between the complainant and coaccused, as their state of mind has to be inferred on the basis of their conduct.
130. Hon'ble Apex Court in case titled "V.C.Shukla vs. State" reported as 1980 (2) SCC ; had held that in most cases it will be difficult to get direct evidence of the crime, but conspiracy can be inferred even from circumstances giving rise to a conclusive or irrepressible inference of an agreement between two or more persons, committing an offence.
C.C.No: 32 / 2011 Page No.79 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
131. Hon'ble Apex Court in case titled "Noor Mohd. Yusuf Momin vs. State of Maharashtra" reported as AIR 1971 SC 885, has held : "...in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."
132. Hon'ble Apex Court in another case titled "John Pandian vs. State" reported as 2011 (1) Crimes SC 1, has further held : "...that there must be a meeting of minds resulting the ultimate decision, taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred even from the circumstances giving rise to a conclusive or irresistible inference of crime between the two or more persons to commit an offence. It was further held that a few bits here and a few bit there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy ."
C.C.No: 32 / 2011 Page No.80 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
133. For the purposes of considering the conduct of the accused persons so as to deduce about his complicity with the conspiracy, a "rule of caution" has been laid down by Privy Counsel in case reported as AIR 1954 PC 140 that : "In a joint trial care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against others".
134. In case titled "Alvin Krumlewitch v. United States of America" reported as (93 L.Ed. 790) ; it has been held by Justice Jackson that : "codefendant in a conspiracy trial occupies an uneasy seat" and "it is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together."
C.C.No: 32 / 2011 Page No.81 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
135. These words of caution were reiterated by Hon'ble Apex Court speaking through Hon'ble Mr.Justice D.P.Wadhwa in case titled "State vs. Nalini" reported as 1999 (5) SCC 253 ; that : "There is a need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that "there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy".
"It has been further held that criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy".C.C.No: 32 / 2011 Page No.82 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
136. Hon'ble Apex Court in case titled "Esher Singh Vs. State of A.P." reported as 2004 (11) SCC 585 has held as under;
"A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused".
137. Being aware of the fact that for the purposes of appreciating the evidence on record with respect to the allegations of conspiracy, the circumstances in which the accused acted, their actions and mannerism are required to be considered, which I shall look into, mindful of the words of caution laid down by Hon'ble Apex Court in above referred precedents.
C.C.No: 32 / 2011 Page No.83 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
138. The marine policy Ex. PW8/DA was issued to cover a consignment purportedly to be sent by M/s Vinayak Enterprises, Delhi, the consignor / insured, consisting of "Electrical Equipments" to M/s Aggarwal Electricals, Dhuri Road, the consignee in Sangrur through M/s Rathore Freight Carriers. The claim was lodged by the insured, processed and passed by the Insurance Company / insurer on alleged short delivery of consignment by the transporter. In order to ascertain the authenticity and genuineness of the transaction the essential requisites are the existence of alleged consignee / transporter through whom the consignment was sought to be transported and the short delivery to the consignee of the consignment by transporter.
139. In case, any of these links is missing or is not in existence, then as a necessary corollary it would follow that the whole transaction was false / fake and the claim amount has been wrongly and fraudulently obtained from the C.C.No: 32 / 2011 Page No.84 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Insurance Company by cheating it and thus causing wrongful loss to it.
140. In order to ascertain above, the most important file is the claim file prepared and maintained by DO XXIII of NIC. The said claim file consisting of 35 pages is proved on record by PW3 Sh.A.K.Seth, Vigilance Officer of the Insurance Company. This file as per PW3 was taken in possession by Vigilance Department of the Insurance Company from DOXXIII in 1999. The same was handed over to IO PW30 S.K.Kashyap by PW5 V.K.Bajaj vide seizure memo Ex. PW5/A.
141. It is contended by Ld. Public Prosecutor that as the complete documents required for processing and settlement of claim are not available in the claim file Ex. PW3/2, therefore, that in itself is sufficient to prove that claim has been fraudulently given to the insured by accused C.C.No: 32 / 2011 Page No.85 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
public servants. This contention of Ld. Public Prosecutor is controverted by Ld. Defence Counsels on the ground that as complete chain of handing over of the file and its preservance in safe custody has not been proved, therefore, nonavailability of the documents in claim file cannot be imputed on the public servants. Ld. Defence Counsels placed reliance on the precedent titled "Anil Maheshwari & Others Versus CBI"
reported as 2013 (136) DRJ 249.
142. I have considered the rival contentions and have perused the precedent relied upon in the light of evidence on record.
143. PW3 A.K.Seth during his cross examination did state that the claim files including Ex. PW3/2 were seized by his team and they had not carried out any other proceedings at the office of accused except seizing the files. He further stated that he cannot recollect from whose custody these files C.C.No: 32 / 2011 Page No.86 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
were seized. Similar version has come on record in the deposition of PW4 A.L.Gambhir and PW7 A.K.Tiwari the other officers of Vigilance team.
144. During his cross examination, PW30 S.K.Kashyap, the initial Investigating officer stated that he does not remember to have examined the aspect as to in whose custody, the claim files were for the period 1999 till 2001 when he seized the same from PW5 V.K.Bajaj. He admitted that he had not taken into possession the inventory regarding seizure of the files by the Vigilance department from DOXXIII, during the course of Vigilance enquiry in the year 1999.
145. The prosecution evidence which has come up on record reveals that the present claim file Ex. PW3/2 was the record of DOXIII of NIC where accused G.C.Gupta & V.P.Pandhi were posted at the relevant point of time. However, prosecution has not examined the officer of DOXXIII from C.C.No: 32 / 2011 Page No.87 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
whose custody, this file was seized for the first time by the Vigilance team of NIC. Further, no inventory of the documents available in the claim file was prepared by the officers of Vigilance department of NIC, so as to prove on record what were the documents available in the claim file at the time of sanction of the claim. The claim file was also not sealed either by the officers of Vigilance department or by IO at the time of respective seizure by them in the years 1999 & 2001, thus no sanctity of preservation of the documents in claim file was maintained.
146. In view thereof, the precedent relied upon by Ld. Defence Counsels in "Anil Maheshwari's case" (Supra) decided by Hon'ble High Court of Delhi in almost similar case squarely applies on this aspect. Thus the contention of Ld. Public Prosecutor that in absence of required documents from the file Ex. PW3/2 the public servants be hauled up for passing the claim fraudulently, does not hold ground. C.C.No: 32 / 2011 Page No.88 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
147. While holding so, I would hasten to add that a counter contention raised by Ld. Defence Counsels, that for the purposes of adjudication of present case, the claim file Ex. PW3/2 cannot be looked into and is of no relevance, cannot be accepted. As the accused persons themselves are relying on the documents in the claim file and it is not the case of any of the parties that the documents on record in file Ex. PW3/2 were inserted subsequently by Vigilance Department or the Investigating agency. Neither any such suggestion was put on behalf of accused persons to prosecution witnesses from the Insurance Company nor to the witnesses from the investigating agency.
148. Thus the documents in the claim file are the relevant and important ones to ascertain the charges with which accused persons have been charged. C.C.No: 32 / 2011 Page No.89 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
NON - EXISTENCE of M/s Agarwal
Electricals,
the
consignee and M/s
Rathore Freight Carriers, the transporter / carrier:
149. As per the claim file Ex.PW.3/2, a letter dated 27.10.1997 from M/s Vinayak Enterprises Ex.PW.11/A was received by accused V.P.Pandhi of NIC. Alongwith this letter, copy of a letter addressed to alleged transporter ie. M/s Rathore Freight Carriers and the purported invoice vide which goods supplied to M/s Aggarwal Electricals, were enclosed which are at Page No.13 and 11 respectively of the claim file Ex.PW.3/2.
150. As per these documents on record, the addresses of M/s Aggarwal Electricals, the consignee was 7, Main Bazar, Dhuri Road, Sangrur (Punjab) and that of transporter M/s Rathore Freight Carriers was 8 /78, Simplex Chamber, National Highway, Gandhi Dham, Kutch, Gujarat. C.C.No: 32 / 2011 Page No.90 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
151. It is alleged that during investigations, no such firms were found existing at the given addresses at relevant point of time.
152. Prosecution in order to prove the same, had examined IO PW31 R.P.Kaushal, PW28 Inspector B.S.Bisht, PW20 Hari Om, PW21 Sh.Ashwani Kumar and PW22 H.C.Mehta, the postman and PW26 Inspector A.S.Jani of CBI, Gandhi Nagar.
153. PW31 R.P.Kaushal deposed that during the course of investigations, he took assistance from Inspector B.S.Bisht for the purposes of verification of certain facts. This deposition of PW31 is endorsed by PW28 Inspector B.S.Bisht, who categorically stated that he was asked by IO to verify the existence of M/s Aggarwal Electricals at 7, Main Bazar, Dhuri Road, Sangrur Punjab. PW28 deposed that he personally C.C.No: 32 / 2011 Page No.91 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
visited Sangrur and contacted the postman of the area viz.
H.C.Mehta and also made inquiries from the various businessmen operating from Dhuri Road regarding existence of M/s Aggarwal Electricals. PW28 deposed that all the persons examined by him disclosed that no such firm exists at the given address, therefore he recorded their statements and forwarded his report to the IO.
154. On being cross examined, he denied the suggestion that he never visited the area himself and had wrongly recorded the statement of witnesses after getting their names and addresses through his staff.
155. PW20 Hari Om, Proprietor of M/s Hari Om Electronics and PW21 Ashwani Kumar, Proprietor of M/s Singla Electronics, operating from Dhuri Road, Sangrur, categorically deposed that they are in this business from 1981 and 1996 respectively. Both of them deposed that being in this C.C.No: 32 / 2011 Page No.92 of 162 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
business, they know and are aware of other shops operating from there. Both of them deposed that no shop or business house by the name of M/s Aggarwal Electricals was in operation or existence in 199798 at Main Bazar Dhuri Road.
156. Both these witnesses on being asked during cross examination, denied the suggestion that M/s Aggarwal Electricals was in existence at 7 Main Bazar, Dhuri Road, Sangrur.
157. Besides these two witnesses, prosecution had also examined the postman of the area viz. Sh.H.C.Mehta, who appeared in the witness box as PW22. He also deposed that being postman of the area, he knows all the shops / properties existing in Main Bazar, Dhuri Road. He deposed that no firm or shop by the name of M/s Aggarwal Electricals, was in existence or operation from 7 Main Bazar, Dhuri Road. C.C.No: 32 / 2011 Page No.93 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
158. During his cross examination on behalf of accused persons, he denied the suggestion regarding existence of this firm in the area of Main Bazar, Dhuri Road.
159. Sh.R.K.Kohli, Advocate Ld.Defence Counsel submitted that the witnesses examined by the prosecution cannot be relied upon as they were not the best witnesses to prove nonexistence of M/s Aggarwal Electricals.
160. I do not find much substance in the contention raised on behalf of accused persons. The only address of the consignee on record is that of 7, Main Bazar, Dhuri Road, Sangrur, Punjab. If at this address, any shop or firm by the name of M/s Aggarwal Electricals existed, then the best witnesses of its existence would have been none other than the other firms / shops dealing in electrical items operating from that area. Besides that, postman of the concerned area C.C.No: 32 / 2011 Page No.94 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
who by virtue of his official duty and the nature thereof, becomes conversant with the shops / firms operating in the area, wherein he used to distribute Dak (post), are the best witnesses.
161. Prosecution to my mind, had examined the best available witnesses. Further, the deposition of PW20, PW21 and PW22 has not been impeached, as nothing has been brought on record during their cross examination for me to infer any reason to doubt the genuineness of their testimonies given by them during their examination in chief .
162. Thus, from the deposition of PW20, PW21 and PW22 which are corroborated by the version given on record by PW28 Inspector B.S.Bisht, prosecution has been able to establish that M/s Aggarwal Electricals, the alleged consignee was not in existence at the given address at relevant point of time.
C.C.No: 32 / 2011 Page No.95 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
163. With respect to nonexistence of M/s Rathore Freight Carriers, prosecution had examined PW26 Inspector A.S.Jani of CBI Gandhinagar and PW31 IO R.P.Kaushal.
164. PW31 R.P.Kaushal deposed that he, for verification of existence of M/s Rathore Freight Carriers, had sent a request letter Ex.PW.26/A to S.P CBI Gandhinagar, on which Inspector A.S.Jani, was deputed and he after necessary verification had taken reply from one Girdhar Singh Rathore Ex.PW.26/B and submitted report Ex.PW.26/C.
165. This version of PW31 gets support and reliance from deposition of PW26 Inspector A.S.Jani. He deposed that he personally visited and area and found that no building by the name of Simplex Chambers exists there. He deposed that on enquiry he found one firm by the name of M/s Rathore Freight Carriers existing from "Rathore Chambers" C.C.No: 32 / 2011 Page No.96 of 162
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Dated : 16.10.2014.
and he met one of the partners of this firm Sh.Girdhar Singh Rathore, who disclosed that he never dealt with M/s Vinayak Enterprises or M/s Aggarwal Electricals and G.R.No.5052, was never issued by their firm, which he gave in writing vide Ex.PW.26/B. PW26 deposed that he thereafter submitted his report Ex.PW.26/C.
166. PW26 was cross examined by Ld.Defence Counsels for the accused, wherein he denied of having given a wrong report while sitting in his office and after getting details from Registrar of Companies. Besides that, nothing material was put to this witness so as to shake the credence with which he deposed.
167. I do not see any reason whatsoever to doubt the deposition of PW26 Inspector A.S.Jani. Had he prepared report on his own while sitting in office of his, then he by no stretch of imagination would have known about existence of C.C.No: 32 / 2011 Page No.97 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
another firm by same name operating from "Rathore Chambers". Further, in that eventuality he would not have got the reply Ex.PW.26/B from partner of said firm. Nothing was put to this witness during his cross examination from which I can get any inkling to doubt his testimony as he apparently had no reason or interest to depose falsely.
168. Prosecution on the basis of evidence brought on record has been able to establish that M/s Rathore Freight Carriers, the alleged transporter / carrier was not in existence at the given address. Thus, the document if any issued by this firm was false and bogus document. Meaning thereby that copy of G.R.No.52 dated 03.10.1997 in the claim file Ex.PW.3/2 is a forged document.
169. Had it been otherwise, accused Vijay Dayal who as Proprietor of M/s Vinayak Enterprises, had taken the policy to cover this consignment, purportedly sent to M/s C.C.No: 32 / 2011 Page No.98 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Aggarwal Electricals through M/s Rathore Freight Carriers, would have produced some documentary evidence of this transaction between M/s Vinayak Enterprises and the consignee, being in their "exclusive knowledge and possession". But no such evidence was led or brought on record, to controvert the case of the prosecution.
170. The resultant inference is that neither any goods were sold to the alleged consignee ie. M/s Aggarwal Electricals vide copy of invoice which is at Page No.11 of Ex.PW.3/2, the claim file, nor the same were transported vide G.R.No.52 dated 03.10.1997 by M/s Rathore Freight Carriers, as no such transport firm was in existence at the given address mentioned on the letter at Page No.12 of the Claim File Ex.PW. 3/2.
171. In the backdrop of above, I shall consider the contentions advanced visavis the prosecution evidence C.C.No: 32 / 2011 Page No.99 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
accused wise.
Case qua accused VIJAY DAYAL :
172. Prosecution case as per the charge sheet, against accused Vijay Dayal is that, he in furtherance of the conspiracy with coaccused persons, had applied for issuance of a marine policy vide letter dated 01.10.1997 as Proprietor of M/s Vinayak Enterprises to cover a consignment allegedly sent to M/s Aggarwal Electricals Sangrur through M/s Rathore Freight Carriers. Further, he vide letter dated 27.10.1997 intimated about the loss and then lodged his claim, vide claim form dated 13.11.1997 and obtained claim amounting to Rs.
2,48,080/ which he deposited in his account with State Bank of India, Jwala Hedi Branch, which he had opened with introduction of coaccused A.K.Sharma.
173. Prosecution in order to prove the letter of request Ex.PW.12/A dated 01.10.1997 for issuance of policy, C.C.No: 32 / 2011 Page No.100 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
letter of loss intimation dated 27.10.1997 Ex.PW.11/A ; Letter dated 12.11.1997 Ex.PW.11/B submitting the claim bill and other documents ; claim form dated 13.11.1997 at Page No.8 of the file Ex.PW.3/2 and receipt of the cheque of claim amount on the letter dated 26.11.1997 at Page No.18 of file Ex.PW.3/2, which allegedly bears signatures of accused Vijay Dayal, has examined PW31 IO R.P.Kaushal, PW36 Sh.B.S.Kanojia and PW25 Sh.Mohinder Singh, the handwriting expert.
174. It is apparent on perusal of deposition of PW31 coupled with that of PW36 Sh.B.S.Kanojia, that during the course of investigations, specimen signatures of accused Vijay Dayal were taken, which were sent to the Government Examiner by IO along with the questioned documents as mentioned hereinabove. Further, from the deposition of PW25 Sh.Mohinder Singh, it is established that he with scientific aid and assistance had compared the questioned signatures with specimen signatures of accused Vijay Dayal Ex.PW.31/J and C.C.No: 32 / 2011 Page No.101 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
gave his report Ex.PW.27/X2 and Ex.PW.27/X5.
175. Sh.R.K.Kohli, Advocate, during the course of arguments had raised objection that the specimen signatures of the accused could not have been taken as per Law and the prescribed procedure, as no permission from the Court was taken by the IO, therefore, the report received from CFSL should not be relied upon. Ld.Defence Counsel in support of his contention has relied upon the law laid down in case titled "Sapan Haldar & Ors. Vs. State", decided by Hon'ble High Court of Delhi bearing Criminal Appeal no. 804/01 on 25.05.2012.
176. I have considered the arguments advanced on behalf of the accused and have perused the precedent relied upon by Ld.Defence Counsel. In my considered opinion, the same does not apply to the facts of the present case in view of the judgement of Hon'ble Apex Court in case titled "Rabindra C.C.No: 32 / 2011 Page No.102 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Kumar Pal @ Dara Singh Vs. Republic of India" , reported as 2011 (2) SCC 490.
177. I do not find any merits in this contention of Ld. Defence Counsel as merely by taking the specimen signatures of an accused person during the course of investigations, the Investigating officer can by no stretch of imagination be held as asking him to stand as a witness against himself. Scientifically it is established that the impression of finger prints and handwriting of any individual does have such intrinsic qualities which no one can willfully change. The use of specimen signatures / handwriting of a person becomes important for any investigating agency to have it compared with the questioned signatures / handwriting just to corroborate the line of investigation which the investigating agency otherwise is carrying forward to unearth the truth in the case in hand. C.C.No: 32 / 2011 Page No.103 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
178. The precedents relied upon by Ld. Defence Counsel in support of his contentions does not come to his rescue in view of the law laid down by Hon'ble Apex Court in Rabindra Kumar Pal @ Dara Singh Vs. Republic of India, reported as 2011 (2) SCC 490. This judgment delivered by Hon'ble Apex Court is the latest judgment on this aspect whereas the precedent relied upon by Ld. Defence Counsel in Sukhbir's Case (Supra) is of the year 1995.
179. In the other judgment relied upon by Ld. Defence Counsel of Hon'ble High Court of Delhi, the law laid down by Hon'ble Apex Court in Dara Singh's Case (Supra) was not considered as the said judgment was not quoted before Hon'ble High Court, in Sapan Haldar's Case (supra).
180. In the present case, it is apparent from the prosecution evidence led on record more particularly in view of C.C.No: 32 / 2011 Page No.104 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
the deposition of PW31, that specimen signatures and handwriting of accused Vijay Dayal were obtained by the Investigating officer which accused had voluntarily given.
There was no suggestion from the accused to PW31 R.P.Kaushal, that he was forced by him being Investigating Officer to give specimen handwriting and signatures.
181. Even PW36 B.S.Kanojia, the independent witness during his deposition stated that specimen signatures of Vijay Dayal Ex.PW.31/J were taken by IO in his presence. No suggestion whatsoever was given to this witness on behalf of accused Vijay Dayal, regarding any force or pressure exerted by IO. This leaves me with no ground to doubt that specimen signatures of accused Vijay Dayal were obtained from him under any pressure, threat or duress.
182. In view thereof, I do not find any merits in this contention of Ld.Defence Counsel that Expert Opinion C.C.No: 32 / 2011 Page No.105 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Ex.PW.27/X2 cannot be relied upon.
183. Prosecution thus has been able to establish on the basis of expert report Ex.PW.27/X2, that the signatures on the letters Ex.PW.11/B dated 12.11.1997 vide which claim form along with other documents were submitted with Insurance Company in support of the claim, bears signatures of accused Vijay Dayal. Further, the signatures on the claim form which is at Page No.8 and receipt of cheque of claim amount at Page no. 18 of Claim File Ex.PW.3/2, are of accused Vijay Dayal.
184. Even otherwise, on bare perusal of specimen signatures of Vijay Dayal and comparing it with the signatures on the documents in claim file Ex.PW.3/2, the similarities are so apparent which leads to the only inference that it was him, who had signed on the letter Ex.PW.11/B vide which claim was lodged with NIC, alongwith which supporting documents which were not genuine, were filed. Further, the Claim Form C.C.No: 32 / 2011 Page No.106 of 162 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
and the receipt of cheque of claim amount at Page No.8 and 18 respectively, of the claim file Ex.PW.3/2, also were signed by accused Vijay Dayal only, as proprietor of M/s Vinayak Enterprises.
185. Consequently, prosecution has been able to establish that it was accused Vijay Dayal who as proprietor of M/s Vinayak Enterprises had applied with NIC to get an insurance policy to cover a consignment to be sent to M/s Aggarwal Electricals, Sangrur Punjab (Nonexistent firm as held by me hereinabove) through M/s Rathore Freight Carriers, which was also not existing at the given address. Further, it was accused Vijay Dayal who had lodged the claim vide abovementioned documents under the policy Ex.PW.8/DA and had ultimately received the cheque of the claim amount vide receipt which is at Page No.18 of the Claim File Ex.PW. 3/2.
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Dated : 16.10.2014.
186. This has brought me down to the next contention of Ld.Defence Counsel that no pecuniary advantage was caused to accused Vijay Dayal, as M/s Vinayak Enterprises is owned by one Sandeep Maheshwari. Ld.Defence Counsel relying on deposition of PW3 A.K.Seth and the Vigilance Report Ex.PW.2/2 contended that Sandeep Maheshwari was the material witness of the prosecution. He contended that as prosecution has withheld the material witnesses, therefore adverse inference be drawn against prosecution, as nonexamination of these witnesses has caused prejudice to the accused.
187. Ld.Defence Counsel in support of his contentions had relied upon the law laid down by Hon'ble Supreme Court in case titled "Narain & Others vs. State of Punjab" reported as AIR 1959 SC 484.
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
188. I have considered this contention of Ld.Defence Counsel and have also perused the precedents relied upon by him.
189. It is and always has been a sound and well established rule of law and practice, that a court while adjudicating upon a particular issue, should always be concerned with the quality of evidence before it and not quantity for proving or disproving a fact. The material witnesses listed in the "list of witnesses" by the prosecution, should be and ought to be examined. However, the discretion always rests with the Public Prosecutor, who is Incharge of the prosecution case, not to examine irrelevant or superfluous witnesses, more particularly, when a particular fact which is sought to be proved, has already come up on record through deposition of other witnesses already examined. C.C.No: 32 / 2011 Page No.109 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
190. The relevant test has been laid down by Hon'ble Supreme Court in the precedent relied upon by Ld.Defence Counsel which is, "The test is, whether he is a witness essential to the unfolding of narrative, on which the prosecution is based".
191. Going by this particular test laid down by Hon'ble Apex Court, I am of the opinion that all the material witnesses, who were essential to the unfolding of prosecution case, were examined. Those witnesses who were not summoned despite having figured in the list of witnesses, are superfluous witnesses. Further, there was no prohibition imposed on the accused persons to summon any or all those witnesses, who they think were necessary for their defence. Accused Vijay Dayal could himself had summoned Sandeep Maheshwari to prove the defence sought to be put forth by him. C.C.No: 32 / 2011 Page No.110 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
192. During the course of arguments, accused Vijay Dayal has claimed himself to have been authorized by Sandeep Maheshwari to open an account in the name of M/s Vinayak Enterprises with SBI Jwala Heri, as he had given this suggestion to the IO, which was denied by IO PW31 R.P.Kaushal. Had there been any semblance in this averment of accused Vijay Dayal, he could have summoned this witness himself in his defence. But he failed to do so.
193. In view thereof, I am of the considered opinion that this argument has been raised only as an afterthought and in an attempt to dent the prosecution case in an indirect manner. The same is therefore rejected.
194. Next limb of the argument advanced by Ld.Defence Counsel was that no pecuniary advantage was caused to accused Vijay Dayal.
C.C.No: 32 / 2011 Page No.111 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
195. This averment of Ld.Defence Counsel stands belied on perusal of deposition of PW6 Sh.Dinesh Kumar, PW16 Sh.P.R.Sharma and PW29 Sh.A.S.Chauhan, all three bank officers from State Bank of India, Jwala Heri Branch.
196. On perusal of their deposition which is unrebutted and not disputed, it is apparent that accused Vijay Dayal as proprietor of M/s Vinayak Enterprises, had opened an account no.061154 vide account opening form Ex.PW.18/A which was introduced by accused Arvind Kumar Sharma. These witnesses further proved that vide payinslip Ex.PW.16/B, Cheque amounting to Rs.2,48,080/ Ex.PW.6/B was deposited in this account and there is a credit entry of this amount in statement of account Ex.PW.16/C of M/s Vinayak Enterprises at "Point X".
197. Cheque of the claim amount Ex.PW.6/B issued by NIC and forwarded to M/s Vinayak Enterprises vide letter of C.C.No: 32 / 2011 Page No.112 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
accused V.P.Pandhi at Page No.18 of claim file Ex.PW.3/2 was accepted by accused Vijay Dayal, who signed this letter dated 26.11.1997 of accused V.P.Pandhi, as an acknowledgement of receipt of the cheque. Prosecution has further proved on record that accused Vijay Dayal vide payinslip Ex.PW.16/B had deposited this cheque of claim amount in the bank account opened by him as proprietor of M/s Vinayak Enterprises and the same was duly credited in the said account vide entry at Point X on the statement of account Ex.PW.16/C.
198. In view of this evidence on record, I do not find any merits in the contention of Sh.R.K.Kohli, Ld.Defence Counsel that no pecuniary advantage was caused to accused Vijay Dayal.
199. Although during arguments, accused in order to defend him, had claimed that he had opened this account for and on behalf of Sandeep Maheshwari, Proprietor of M/s C.C.No: 32 / 2011 Page No.113 of 162 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Vinayak Enterprises and that too, on his authorization.
However, this contention of Ld.Defence Counsel does not appear to be plausible and acceptable, as no evidence whatsoever has been led on record by accused Vijay Dayal to prove this fact claimed by him, for me to believe.
200. Further, as per the account opening form Ex.PW.16/A proved on record by prosecution through deposition of PW6 ; PW16 and PW29, it is evident that vide this form, accused had opened the bank account with State Bank of India, claiming himself to be the Proprietor of M/s Vinayak Enterprises and not as an authorized person or signatory for and on behalf of M/s Vinayak Enterprises.
201. In view of above, it is clearly evident that accused Vijay Dayal was aware of each and every step and was benefited out of the claim proceeds which came from National Insurance Company on the basis of the claim lodged C.C.No: 32 / 2011 Page No.114 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
for and on behalf of M/s Vinayak Enterprises. The said claim being on the basis of false and forged documents which were submitted by the insured with NIC knowing or having reasons to believe the same to be forged ones.
202. The nexus amongst the accused persons is evident on perusal of the documents proved on record by the prosecution during the course of evidence. The surveyor report which is at Page No.29 to 33, of the claim file Ex.PW.3/2, submitted by M/s Pooja International, which is Proprietorship concern of accused Arvind Kumar Sharma, bears signatures of accused K.V.Juneja. Accused K.V.Juneja, who as Proprietor of M/s Honey International in this case was appointed as "recovery agent". The account opening form Ex.PW.16/A, vide which insured Vijay Dayal had opened the bank account wherein the cheque of the claim amount was deposited, reveals that the same was opened with introduction of coaccused Arvind Kumar Sharma, who as proprietor of M/s Pooja C.C.No: 32 / 2011 Page No.115 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
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International, was appointed as "surveyor" in this case.
203. This evidence on record reveals that all the accused persons were acting in concert and were leading to achieve the object of the conspiracy, by cheating NIC.
204. Prosecution has been able to establish that accused Vijay Dayal being member of the conspiracy, had submitted a copy of a fake / forged GR No.5052 dated 03.10.1997 alongwith the other supporting documents which are part of Claim File Ex.PW.3/2 vide his letter Ex.PW.11/B, knowing or having reasons to believe the same to be forged ones and used it as genuine for getting the claim and cheated NIC by causing wrongful gain to himself or wrongful loss to NIC.
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Judgement in the matter of:-
CC No.: 32 / 11.
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Dated : 16.10.2014.
Case qua accused ARVIND KUMAR
SHARMA :
205. Prosecution case as per evidence which has come up on record, is that pursuant to letter from insured Ex.PW.11/A dated 27.10.1997, accused V.P.Pandhi had appointed M/s Pooja International as "tracers" for tracing the consignment vide his endorsement Ex.PW.24/A on the cover page of file Ex.PW.3/2. This fact has been further proved on record by PW11 Gopa Sahu and PW24 Sh.Om Prakash Chaudhary of NIC and is not disputed by accused V.P.Pandhi.
206. The claim file Ex.PW.3/2 contains the tracers / surveyor's report dated 16.11.1997 on page no.33. The payment voucher dated 31.03.1998 is at Page No.20 of the file Ex.PW.3/2 vide which payment of Rs.6320/ towards the "surveyor / tracing fee" was paid to M/s Pooja International by NIC. The fact that accused Arvind Kumar Sharma is proprietor of M/s Pooja International and being such, had filed C.C.No: 32 / 2011 Page No.117 of 162 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
the tracer's report dated 16.11.1997 is not disputed by him during his statement under section 313 Cr.P.C.
207. In the report dated 16.11.1997, which is at Page No.33 of the file Ex.PW.3/2, accused Arvind Kumar Sharma has claimed that on being appointed as tracer / surveyor, his representative had met the official of carrier ie.
M/s Rathore Freight Carriers, who confirmed that they had booked a consignment of 14 boxes, for transportation from Delhi to Sangrur vide G.R.No.5052 dated 03.10.1997. The report further states that representative of accused Arvind Kumar Sharma, then traced 13 boxes out of 14 boxes which were booked. Report further states that representative of Arvind Kumar Sharma had also met the consignee, at Sangrur and had facilitated the receipt of 13 boxes, as Box No.2 could not be traced. Accused Arvind Kumar Sharma in his report stated that due to this short supply, insured has suffered a loss of Rs.2,48,080/ and the claim is genuine. C.C.No: 32 / 2011 Page No.118 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
208. Considering the facts already proved hereinabove that, neither the consignee nor transporter were in existence, thus there was no question of any consignment being transported from Delhi to Sangrur, for which Marine Policy Ex.PW.8/DA was taken. In view thereof, the facts stated by accused Arvind Kumar Sharma in his report dated 16.11.1997 are palpably false.
209. The reasons for filing of this false report by accused Arvind Kumar Sharma are not far to seek. He did so, being in complicity with the claimant / insured Vijay Dayal.
Had that been not so, the tracer / surveyor Arvind Kumar Sharma should have given genuine and correct report. His nexus with the claimant / insured is further established on record by prosecution through deposition of PW6, PW16 and PW29, the officers from State Bank of India, Jwala Heri Branch, where accused Vijay Dayal had opened an account, as C.C.No: 32 / 2011 Page No.119 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
proprietor of M/s Vinayak Enterprises, wherein he had deposited the cheque Ex.PW.6/B of the claim amount. The introduction to open this account as per account opening form Ex.PW.16/A was given by accused Arvind Kumar Sharma.
210. The empanelled tracer / surveyor of the Insurance Company is under a solemn duty to submit a true and actual report to the Insurance Company knowing fully well that it is on the basis of his report that the Insurance Company shall act for processing the claim lodged with it and thus this report can be considered as a valuable security.
211. In view of above, the argument raised by Ld.Defence Counsel Sh.R.K.Kohli, Advocate on behalf of accused Arvind Kumar Sharma, that the report of tracer / surveyor is not binding and Insurance Company need not rely on the same for settling a claim, to my mind is devoid of any logic and merits and thus it cannot be accepted.C.C.No: 32 / 2011 Page No.120 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
212. If such a proposition is accepted then the same shall lead to hazardous results. The empanelled surveyor / tracer would start giving reports sitting in the confines and comfort of their respective offices and claiming their fees without lending any concrete support to the Insurance Company for disposal of claims lodged with it. The tracer / surveyor are supposed to act in a bonafide manner while performing their assigned roles.
213. This has led me to the next contention urged by Sh.R.K.Kohli, Advocate, Ld.Defence Counsel on behalf of accused Arvind Kumar Sharma on Legal aspect. He contended that if the report Ex. PW24/A dated 16.11.1997 is considered to have been given by his client Arvind Kumar Sharma, then the same does not fall within the ambit of the definition "False document" as defined in Section 464 of I.P.C., so no case for offence under section 468 IPC is made out C.C.No: 32 / 2011 Page No.121 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
against him with which he has been charged.
214. For the purposes of appreciating this contention of Ld.Defence Counsel for accused A.K.Sharma, it is pertinent to peruse section 468, 463 & 464 of Indian Penal Code which are reproduced as under : SECTION 468 I.P.C. : Forgery for purpose of cheating Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
SECTION 463 I.P.C. : Forgery Whoever commits forgery, makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
C.C.No: 32 / 2011 Page No.122 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
SECTION - 464 I.P.C : Making a false document A person is said to make a false document or false electronic record First Who dishonestly or fraudulently
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of a document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of C.C.No: 32 / 2011 Page No.123 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
such alteration; or Thirdly Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
215. Relying upon this definition of "Making false document", Sh.R.K.Kohli, Advocate, Ld.Defence Counsel had contended, that it was not the case of the prosecution that he made this document i.e. report Ex.PW24/A dated 16.11.1997 with intention of causing it to be believed that this document was made by the authority of a person by whom or by whose authority accused / tracer knew that it was not made and therefore document i.e. survey / tracing report did not amount to forgery.
C.C.No: 32 / 2011 Page No.124 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
216. It is true that on the face of it, document i.e. survey / tracing report is not made by the accused / surveyor with the intention of causing it to be believed that the he had made the document with or by the authority of some other person and as such, it appears that accused / surveyor have a strong case in his favour.
217. However, there is another angle to this argument and according to the learned Public Prosecutor, Illustration (h) of Section 464 and Explanation 1 coupled with Illustration (e) thereof, squarely and directly bring the case within the ambit of Section 463 and 464 of Indian Penal Code.
218. I have considered the rival submissions and have perused all the illustrations appended to Section 464 IPC.C.C.No: 32 / 2011 Page No.125 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
219. It is relevant to peruse illustration (h) and (e) as well as Explanation 1 appended to section 464 IPC, the same is delineated as under : Illustration (h) : "(h) A sells and conveys an estate to Z. A afterwards, in order to defraud Z of his estate, executes a conveyance of the same estate to B, dated six months earlier than the date of the conveyance to Z, intending it to be believed that he had conveyed the estate to B before he conveyed it to Z. A has committed forgery."
Explanation 1. A man's signature of his own name may amount to forgery.
Illustration (e) is as under : "(e) A draws a bill of exchange on himself in the name of B without B's authority, intending to discount it as a genuine bill with a banker and intending to take up the bill on its maturity. Here, as A draws the bill with intent to deceive the banker by leading him to suppose that he had security of B, and thereby to discount the bill, A is guilty of forgery."
C.C.No: 32 / 2011 Page No.126 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
220. It is evident from Illustration (h) that "A" in order to defraud "Z" executed a conveyance of the same estate to "B" which was antidated by six months from the date of conveyance in favour of "Z" and this was done by "A" intending it to be believed that he had conveyed the estate to "B" before he conveyed it to "Z" and this has been held to be forgery, as intended by the Legislature.
221. From this Illustration, it is clear that a man can be said to have committed "forgery of document" even if he himself, is the author and signatory of the document. This Illustration does not require that he should sign a document making it to be believed that somebody else has signed the same or that he was authorized to sign the same on somebody else's behalf.C.C.No: 32 / 2011 Page No.127 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
222. Explanation 1 makes it further clear that the man's signature in his own name may amount to forgery and from Illustration (e) thereof, it is clear that writing a promissory note by "A" in the circumstances given in the Illustration is considered as an act of forgery under the first head of the definition given in section 464 of I.P.C.
223. From these two Illustrations (h) and (e) and Explanation 1, it is clear that legislature intended to cover such cases, under the offence of forgery whenever the person, who had created a document even though the document was made by himself, in his own name and signed in his own name. These two illustrations coupled with Explanation 1, therefore, make the scope of the definition "Making a false document" very wide.
224. In the present case, the report dated 16.11.1997, which is at Page No.29 to 33 of the Claim File C.C.No: 32 / 2011 Page No.128 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Ex.PW.3/2, though was signed by coaccused K.V.Juneja, but was submitted for M/s Pooja International, of which accused Arvind Kumar Sharma, was the Proprietor. Further, against this survey report, the survey fees of Rs.6320/ was claimed by accused Arvind Kumar Sharma from NIC, which was paid to him vide voucher, which is at Page No.20 of the Claim File Ex.PW.3/2.
225. In view thereof, I do not find any merits in this argument of Ld.Defence Counsel, that the survey / tracing report does not fall under the definition of forgery. This contention of his is accordingly turned down.
226. Prosecution thus has been able to establish that accused Arvind Kumar Sharma was one of the co conspirators and he in order to perform his assigned role in the conspiracy had forged the report dated 16.11.1997 which is at Page No.33 of the Claim File Ex.PW.3/2 and got it signed for C.C.No: 32 / 2011 Page No.129 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
him, from coaccused K.V.Juneja, with intention to induce NIC to believe on the same.
Case qua accused K. V. JUNEJA :
227. As per deposition of PW12 Pooja Soni, PW11 Gopa Sahu and PW24 Om Prakash Chaudhary, accused V.P.Pandhi being Assistant Manager had approved the note dated 24.11.1997 ie. Ex.PW.12/B vide his signatures at Point A and also approved the appointment of "Recovery Agent".
228. Claim File Ex.PW.3/2 coupled with deposition of witnesses of the Vigilance Team PW3 ; PW4 ; and PW7 and the report Ex.PW.2/2, it is apparent that M/s Honey International were appointed as "Recovery Agents". It was accused K.V.Juneja, who is proprietor of M/s Honey International. Further, as per deposition of these witnesses and the receipt at page no.34 of Claim File Ex.PW.3/2, documents were collected by M/s Honey International, for C.C.No: 32 / 2011 Page No.130 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
having the recovery affected from the transporter / carrier.
229. Further, as per letter Ex.PW.11/C of M/s Honey International, accused K.V.Juneja informed NIC that with much pursuation with the carrier, he has affected recovery of Rs.24,800/ and collected a demand draft of this amount from carrier.
230. This letter Ex.PW.11/C was received by accused G.C.Gupta who vide his endorsement at Point A, dated 12.03.1998 accepted the same on which this recovery amount was deposited with NIC vide voucher at Page No.24 of Claim File Ex.PW.3/2. Further, the bill of Recovery Agent towards his fee at Page No.22 was approved by accused G.C.Gupta whereby the fee of recovery agent, K.V.Juneja being proprietor of M/s Honey International was paid vide voucher at Page No.23 of Claim File Ex.PW.3/2.
C.C.No: 32 / 2011 Page No.131 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
231. The factum that it was accused KV.Juneja who was proprietor of M/s Honey International, is not disputed by him during the course of his statement u/s 313 Cr.P.C., wherein while admitting this fact, he contended that he was the proprietor of M/s Honey International only for namesake, whereas it was actually being looked after by accused Arvind Kumar Sharma. This version of his in noway lessens his culpability as Proprietor of M/s Honey International, rather augments the nexus of his, with coaccused persons.
232. Perusal of the Banker's Cheque Ex.PW.18/D vide which the recovery amount was deposited with National Insurance Company, coupled with deposition of PW18 Hardev Singh, the witness from Punjab and Sind Bank, it is apparent that the said Banker's Cheque was got prepared from the account number 2017 which as per the account opening form Ex.PW.18/B was the account of Arvind Kumar Sharma, which he was jointly holding with his wife Neena Sharma.C.C.No: 32 / 2011 Page No.132 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
233. Although, it is contended by Ld.Defence Counsel that for preparing this banker's cheque, cash amount was deposited as per Voucher Ex.PW.18/E, and the same did not come from the account of Arvind Kumar Sharma. However, this contention of Ld.Defence Counsel is not acceptable in view of the cross examination of PW18, who stated that any account holder can get the banker's cheque made either by getting the money debited from his own bank account or by depositing cash. This coupled with the fact that on Ex.PW.18/D the Banker's Cheque there is a specific mention of saving bank account no.2017, which makes it evident that it was made from the account of accused Arvind Kumar Sharma.
234. As per the Claim File Ex.PW.3/2, Arvind Kumar Sharma as Proprietor of M/s Pooja International, was appointed as surveyor in this case. Thus, he should not have been in any way connected with the recovery amount. But the evidence on record reveals otherwise.C.C.No: 32 / 2011 Page No.133 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
235. Record reveals that this recovery amount deposited with Insurance Company by accused K.V.Juneja as Proprietor of M/s Honey International, did not come from the transporter / carrier. Rather, the same was deposited from the account of Arvind Kumar Sharma, who was appointed as Surveyor in this case. This fact further fortifies the nexus / complicity amongst the accused persons, and their respective roles towards achievement of the ultimate object of the conspiracy.
236. In order to defend accused K.V.Juneja, Sh.
R.K.Kohli, Advocate had contended that this is a regular practice that the recovery agents used to negotiate with the carrier on behalf of the Insurance Companies for more than one case simultaneously and after getting a consolidated recovery affected, they used to deposit the same proportionately with the Insurance Companies from their own C.C.No: 32 / 2011 Page No.134 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
accounts.
237. No doubt, Ld. Defence Counsel had put such suggestion to the prosecution witnesses more particularly to PW12 Gopa Sahu and Investigating Officers i.e. PW29 & PW30, but none of them admitted that any such rule or procedure was in existence or practice. Nor any such rule or policy was brought on record by Ld. Defence Consel to confront the prosecution witnesses or to prove in defence evidence.
Rather PW3 A.K.Seth specifically stated during his cross examination that recovery should come from the transporter.
238. The contention sought to be raised by Ld. Defence Counel seems to be preposterous. Had any such practice or policy in existence or prevalence the same would have led to bizarre results and propositions. It would have been the absolute discretion of the recovery agents in such eventuality to decide firstly that what should be the C.C.No: 32 / 2011 Page No.135 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
"consolidated amount" which they would accept from the transporter / carrier while negotiating more than one case of a single Insurance Company or the cases of different Insurance Companies. Secondly, how and who shall decide as to how much from this consolidated recovery is to be deposited in separate cases.
239. In view thereof, I do not find any merits in this contention of Ld. Defence Counsel. The recovery if any had to come from transporter / carrier straight in the name of the Insurance Company. Recovery Agent acts as no more than a facilitator or mediator between the Insurance Company and the carrier against his remuneration i.e. Recovery Fee which he gets from the Insurance Company. Further in the present case, it did not even come from the Recovery Agent, but came from coaccused Arvind Kumar Sharma, who was appointed as "surveyor".
C.C.No: 32 / 2011 Page No.136 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
240. In the present case, as held by hereinbefore that M/s Rathore Freight Carriers, was not in existence at the given address, thus there was no occasion with the recovery agent to negotiate with a nonexistent entity and to have the recovery affected from thin air.
241. This act / conduct on the part of K.V.Juneja leads to only one inference that whatever he had done the same is owing to the nexus he had with the insured. Had that been not so, then he could have very well submitted a report with the Insurance Company stating actual facts that no recovery could be affected as no such transporter was in existence. But that was not to be. As he had to perform his role in the larger conspiracy. His act of doing so, in terms of Section 10 of Evidence Act makes it explicit that he was part of the conspiracy.
C.C.No: 32 / 2011 Page No.137 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
242. This has brought me down to the last contention urged by Sh.R.K.Kohli, Ld. Advocate in defence of accused K.V.Juneja. It is submitted by Ld. Defence Counsel relying on cross examination of prosecution witnesses conducted by him, that recovery agent is appointed once the claim is settled and approved by the insurance company. He contended that if at all there was any conspiracy, then the object of same was to get the claim amount released and the moment when the said object is achieved, the conspiracy stands accomplished and terminates. He contended that the acts and actions of K.V.Juneja as recovery agent were subsequent actions therefore, the same cannot be linked with conspiracy.
243. This contention of Ld. Defence Counsel though has some merits but the same are not sufficient to take the acts and actions of recovery agent outside the scope and purview of the claim, which once registered does not culminates on its release by the Insurance Company to the claimant / C.C.No: 32 / 2011 Page No.138 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
insured. The claim file remains alive till the Insurance Company settles its dues with the transporter / carrier. This fact is evident as the receipt of recovery agent Ex. PW11/C, his bill which at Page No.22 which was approved by accused G.C.Gupta and the voucher of payment of his fee which is at Page No.23 and the voucher vide which recovery amount was deposited , were part of the claim file Ex. PW3/2. Further the conspiracy as emanating from the physical manifestations of its different players as is being proved on record by the prosecution was not to culminate at the release of claim amount. It was also the object of it that the claim file once for all is closed by the Insurance Company after accepting whatever little amount which is deposited with it in the name of recovery.
244. Had that not been the object and had accused K.V.Juneja acted in a bonafide manner as recovery agent, then he after trying to locate the transporter, who as held by me C.C.No: 32 / 2011 Page No.139 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
hereinabove was nonexistent, could have reported to the Insurance Company that no recovery could be affected. There was no other reason but for one, with him to have paid Rs.
24,800/ to the Insurance Company from the account of Surveyor Arvind Kumar Sharma. That one and only reason is obvious which is his nexus with the claimant / insured. This conduct of accused K.V.Juneja has forced me to turn down this contention of Ld. Defence Counsel.
245. Prosecution thus has been able to establish on record, that accused K.V.Juneja, being party to the conspiracy, had performed his assigned role and cheated the Insurance Company by inducing it to believe that transporter was in existence, by depositing the recovery amount claiming the same has been recovered by him from the alleged transporter.
C.C.No: 32 / 2011 Page No.140 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Case qua accused G.C.GUPTA AND V.P.PANDHI, the Public Servants:
246. Ld. Defence Counsels defending the public servants had vociferously contended that whatever they have done in the present claim, the same was in discharge of their official duties. Ld.Defence Cousnels relying on the deposition of prosecution witnesses, more particularly, the cross examination conducted by them of PW3 ; PW4; PW6; PW11 and PW12 had contended that appointing a surveyor / tracer after receipt of intimation of loss of consignment is no illegality.
It is further stated that it is not an illegality to receive any letter or Dak (post) by the accused persons and taking action on it. It is further submitted that whatever they have done the same was on the basis of processing and recommendations of subordinate officers, on which they had no reasons to doubt. Sh.Ramesh Gupta, Ld.Senior Counsel further contended that there is no evidence on record to impute that at any point of time, the public servants had met the claimant / insured, either C.C.No: 32 / 2011 Page No.141 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
before or during the processing of claim or after passing of it.
247. No doubt, the entire prosecution evidence does not anywhere states that the claimant / insured had met the accused persons. But that in itself is not and cannot be a ground to absolve the accused persons. As with respect to the offence of conspiracy, hardly one gets such direct evidence. It is from the act or actions and physical manifestation of the parties, that one has to infer as to whether they were acting in concert with a particular object to achieve.
248. The mode and manner in which the accused public servants had acted, in the present claim case has to be seen from the available documents in the file Ex.PW.3/2.
249. As per deposition of PW3 Sh.A.K.Seth, coupled with the report of the Vigilance Team and deposition of PW11 Gopa Sahu and PW24 Om Prakash Chaudhary, the C.C.No: 32 / 2011 Page No.142 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
first letter dated 01.10.1997 Ex.PW.12/A was received by accused V.P.Pandhi at whose instance PW24 calculated the premium and PW11 Gopa Sahu issued the policy Ex.PW.8/DA against premium of Rs.1875/ through cheque.
250. Perusal of Ex.PW.12/A depicts that the same is request of applicant / insured M/s Vinayak Enterprises for issuance of marine policy to cover a consignment sought to be sent by him from Delhi to M/s Aggarwal Electricals Sangrur.
This letter depicts that the details of despatch shall be intimated subsequently. However, policy Ex.PW.8/DA was issued on same date that is 01.10.1997, mentioning G.R.Number to be 5052 dated 03.10.1997.
251. How G.R. Number and Date happens to be there on the policy issued on same date when the proposal form, on which policy was issued, distinctly states that G.R.Number shall be intimated at the time of despatch. C.C.No: 32 / 2011 Page No.143 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Further, how G.R.Number of a future date could have been mentioned on the policy issued on 01.10.1997. By no stretch of imagination, it can be accepted that any transporter / carrier can issue a G.R., of a future date.
252. Had it not been for the complicity with the insured, accused V.P.Pandhi, a senior officer of NIC would not have let this happen and would have smelt something wrong, at the very inception.
253. Further, from the deposition of PW11, PW12 and PW24 coupled with the perusal of claim file Ex.PW.3/2, it is evident that the letter Ex.PW.11/A dated 27.10.1997 regarding intimation of loss was directly received by accused V.P.Pandhi who vide his endorsement Ex.PW.24/A at the inside of file cover had appointed M/s Pooja International for tracing. C.C.No: 32 / 2011 Page No.144 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
254. Bare perusal of the claim file Ex.PW.3/2 which contains a receipt from M/s Pooja International at Page 14 reveals that this firm owned by accused Arvind Kumar Sharma had collected the documents for tracing on that very day of their appointment as tracers. Appointment of Arvind Sharma's firm M/s Pooja International in this case who as has been held by me was the person who introduced the opening of bank account of the insured / claimant accused Vijay Dayal, wherein the cheque of the claim amount eventually landed, points towards the complicity of accused V.P.Pandhi with co conspirators.
255. Appointment of M/s Pooja International in this case as "Tracers", was not a chance but chosen one, by accused V.P.Pandhi, as a step towards achievement of the ultimate object of the conspiracy.
C.C.No: 32 / 2011 Page No.145 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
256. Had that been not so, how M/s Pooja International got to know of their appointment as "tracers" on 27.10.1997 itself, ie. the date of appointment and had collected the documents on that very day, vide receipt at Page No.14 of the claim file Ex.PW.3/2.
257. Next pointer towards the association of accused persons is magnified on joint perusal of report dated 16.11.1997 of "tracer" M/s Pooja International at Page No.33 of Ex.PW.3/2 on one hand and the letter dated 12.11.1997 Ex.PW. 11/B of insured coupled with the claim form at Page No.8 of Ex.PW.3/2. It is pertinent to mention that the letter Ex.PW. 11/B was also directly received by accused V.P.Pandhi vide his endorsement at Point A.
258. It is evident that the tracer vide his report dated 16.11.1997 had advised consigner to collect "Short Delivery Certificate" from the carrier, whereas consignor / C.C.No: 32 / 2011 Page No.146 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
insured vide his letter dated 12.11.1997 Ex.PW.11/B and claim form dated 13.11.1997 submitted with NIC, had enclosed the "Short Delivery Certificate" from carrier, ie. much prior to the date of survey report.
259. Had accused V.P.Pandhi while approving the claim vide note dated 24.11.1997 Ex.PW.12/B considered these documents, he would have found something amiss, which would have saved NIC from wrongful loss.
260. But these discrepancies were overlooked by accused V.P.Pandhi for obvious reasons. Besides that, accused V.P.Pandhi, while approving the note dated 24.11.1997 Ex.PW. 12/B failed to take into consideration that the said note stated that letter of subrogation be sought from the insured. If that was the position, then by no stretch of imagination, the said letter of subrogation could have been furnished by insured, prior to 24.11.1997. However, perusal of receipt dated C.C.No: 32 / 2011 Page No.147 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
27.10.1997 of M/s Pooja International at Page No.14 of Ex.PW.
3/2 depicts otherwise. As per this receipt, the documents mentioned therein, including letter of subrogation was collected by them from insurance company on 27.10.1997 itself.
261. All the correspondence right from the proposal for issuance of Marine Policy, to the intimation of loss of consignment, submission of Claim Form and letter from the recovery agent Ex.PW.11/C, though in ordinary course should have been received by the Insurance Company in its office from where, it should have been put up before the accused persons, who were the senior officers. However, evidence on record reveals that all these correspondence were directly received by accused G.C.Gupta and V.P.Pandhi.
262. No doubt, PW3 , PW4 and PW7 during the course of their cross examination, had admitted that there is no irregularity or directly receiving a Dak by Incharge / Senior C.C.No: 32 / 2011 Page No.148 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Officer, Heading the Branch. But, this process should have been an exception. In the present case, all these correspondence directly landed in the hands of accused public servants, who then had given definite instructions to their subordinate officers for processing them. This leads to establish an important link between the accused public servants and their coconspirators ie. private persons.
263. Apart from above, accused G.C.Gupta by accepting the recovery of Rs.24,800/ vide receipt Ex.PW.11/C coupled with voucher at page no.24 of Ex.PW.3/2 from the recovery agent without confirming as to whether it has come from the transporter / carrier or not, closed the file by putting final nail in the coffin of the present case, probably with the hope and intention that noone will get to know of what transpired between them as officers of National Insurance Company and the coconspirators which led to passing of this claim.
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Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
264. As responsible officers of National Insurance Company, it was expected of them being obligatory on their part, to have acted in the best interest of the company. But that was not to be. They not only obviated what basic standard of care and caution they were expected to adopt while performing their official duties. Rather, they facilitated their coconspirators to cheat the insurance company by causing wrongful loss to it.
265. Had there been no involvement of these accused public servants, then the "rule of prudence" demand that they should have scrutinized the documents / letters sought to be placed on record in support of the claim by the claimant, which would have saved National Insurance Company from the wrongful loss.
266. But that was not to be.
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Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
267. This has led me down to the next contention urged on behalf of accused public servants by Ld.Defence Counsels, that the investigating agency had been unfair and adopted "Pick and Choose Policy" to falsely implicate accused G.C.Gupta and V.P.Pandhi and exonerating other similarly situated officers.
268. Need of fair, honest, efficient and thorough investigations is the single most important factor which directly determines the fulfillment of the object for which various provisions of P.C.Act were brought on the Statute Book. Investigations lays the foundation on which arch of trial is erected. An important link, if missed by the investigating agency and if detected late, leads to crumbling of this arch. Therefore, the investigating agency while performing its duty, needs to be vigilant so as to collect all material and relevant evidence linked with the case.
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Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
269. An import link, if missed, could lead to hazardous results as time and resources spent on trial becomes irretrievable. Whether such evidence or link did not exist or intentionally skipped by the investigating agency however is required to be looked into. For that, I have considered the entire prosecution evidence, more particularly the deposition of three officers of the vigilance team of NIC and the report which formed the basis of complaint filed with CBI by PW K.Mahapatra. I have also considered the deposition of both the Investigating officers. There was no evidence against the other officers of NIC, who as per Ld.Defence Counsels for accused public servants, have performed similar roles.
270. From the evidence which has come up on record as discussed hereinabove, prosecution has been able to establish nexus between the accused public servants only and their coconspirator private persons. I do not see from C.C.No: 32 / 2011 Page No.152 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
material on record that the investigating agency had intentionally skipped evidence against other officers of NIC.
Therefore, this contention of Ld.Defence Counsels that investigating agency had conducted the investigations in an unfair manner adopting "pick and chose policy" is turned down.
271. The evidence led on record by prosecution has proved that there was a conspiracy amongst accused G.C.Gupta, V.P.Pandhi, A.K.Sharma K.V.Juneja and Vijay Dayal in furtherance of which, each one of them had performed their respective roles, so as to achieve its ultimate object.
272. Sh.C.L.Gupta, Advocate, Ld.Defence Counsel relying upon the defence witness examined by them ie. DW2 Om Prakash, had contended that even the investigating agency during house search of accused G.C.Gupta did not find C.C.No: 32 / 2011 Page No.153 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
anything incriminating. He contended that the documents taken into possession during his house search were returned to the accused. Ld.Defence Counsel further augmented this contention of his, that accused G.C.Gupta has not criminally misconducted himself, by relying upon the deposition of other defence witness examined by them viz. DW1 A.K.Goel, to prove that his suspension order was revoked and he has been reinstated.
273. I have considered these contentions of Ld.Defence Counsel and have perused the defence evidence led on record. Merely because during house search of accused G.C.Gupta, investigating agency did not find documents worth relying to prove its case, does not by any way rules out the importance of the documentary evidence which has been relied upon and proved by the prosecution against accused. Further, merely because his department has revoked the suspension and reinstated the accused does not exonerates the accused from C.C.No: 32 / 2011 Page No.154 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
the criminal liability, if established on the basis of settled principles of adjudication of Criminal Justice System.
274. In view thereof, I do not find any merits in this contention of Ld.Defence Counsel to exonerate accused G.C.Gupta on the basis of deposition of these two defence witnesses examined by them. The same is accordingly turned down.
275. Last contention urged on behalf of the accused public servants, was that their actions and inactions does not constitute the offence under Prevention of Corruption Act as the same at best, can amount to misconduct. It is contended that this misconduct, by no stretch of imagination, can be termed as "criminal". C.C.No: 32 / 2011 Page No.155 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
276. The word "misconduct" has been defined in Black's Law Dictionary, which reads as under: "The transgression of some established rule of action, dereliction from duty, unlawful behaviour, improper or wrong behaviour".
277. The term "misconduct" implies wrong intention and not a mere error of judgement. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or Statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action.
278. Section 13(1) (d) of the Prevention of Corruption Act, does not make any negligence or a plain and C.C.No: 32 / 2011 Page No.156 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
simple misconduct on the part of any public servant, a punishable offence. Hon'ble Apex Court in a catena of judgement while interpreting the provisions of this Act has laid down that a blatant carelessness or gross negligence on the part of any public servant, does not ipsofacto, comes within the domain of this Section. The alleged misconduct on the part of public servant has to be actuated with criminal intent. The abuse of his position as a public servant in order to come within the mischief of the section must necessarily be dishonest intention on the part of said officer qua the alleged act.
279. The burden to prove affirmatively that accused by abusing his official position had obtained any pecuniary advantage either for himself or for any other person, lies on the prosecution. The prosecution on the basis of evidence led by it on record, has to satisfy the principal that all inculpatory facts, established on record must be inconsistent with the innocence of the accused and incapable of explanation of any C.C.No: 32 / 2011 Page No.157 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
other hypothesis than that of his guilt.
280. In the backdrop of above, the analysis of evidence adduced by the prosecution during the course of trial, and observed by me hereinabove, in my considered opinion has led to an unerring certainty that accused G.C.Gupta and V.P.Pandhi, acting inconcert, with each other being public servants, had abused their official position as such and facilitated coaccused Vijay Dayal, Proprietor of M/s Vinayak Enterprises, with aid and assistance of other two conspirators namely Arvind Kumar Sharma and K.V.Juneja, the tracer and recovery agent respectively, to get wrongful pecuniary advantage, by passing a claim on the basis of false and forged documents, thereby causing wrongful loss to NIC.
281. These actions and omissions of theirs, is nothing short of "criminal misconduct" as the same is laden with a dishonest intention, with which they had acted while C.C.No: 32 / 2011 Page No.158 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
dealing with the Claim file Ex.PW.3/2 and passing and releasing a claim amounting to Rs.2,48,080/ in favor of M/s Vinayak Enterprises. Their actions have clearly transgressed plain and simple misconduct and entered in the contours of "criminal misconduct".
282. Consequently, from the material placed and proved on record by the prosecution, it is established that there was prior meeting of minds amongst all the accused persons, who acting inconcert had hatched a conspiracy, the object of which was to obtain a Marine Claim in favor of M/s Vinayak Enterprises, on the basis of false and forged documents. Prosecution has been able to establish on record that all the accused had performed their assigned roles of commissions and omissions, in the process of achieving the object of conspiracy. Had there been no prior meeting of minds, then the accused persons would not have conducted themselves, the way they have, as held by me hereinabove. C.C.No: 32 / 2011 Page No.159 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
283. In view thereof, I do not find any merits in the contentions advanced by Ld.Counsels for the accused persons that the material on record is not sufficient to infer that there was no meeting of mind amongst the accused persons to carry out any illegal design.
284. The cumulative effect of the facts established on record by the prosecution which are inconsistent with the innocence of the accused persons and incapable of any explanation or any loopholes, other than guilt of the accused G.C.Gupta, V.P.Pandhi, Arvind Kumar Sharma, K.V.Juneja and Vijay Dayal, I am of the considered opinion that apart from the offence of commission of criminal conspiracy to commit offences, the same are sufficient for proving substantive offences of criminal misconduct, cheating ; forgery and submission of forged documents C.C.No: 32 / 2011 Page No.160 of 162 Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
as genuine .
285. In view thereof , I proceed to dispose off the present case as under: F I N A L V E R D I C T :
286. Having regards to the facts and circumstances and the discussions as delineated hereinabove:
(a) Accused G.C.Gupta, V.P.Pandhi, Vijay Dayal, Arvind Kumar Sharma and K.V.Juneja, stands convicted for offences punishable under section 120B r/w section 420, 468 and 471 I.P.C, read with section 13(1)(d) & 13(2) of Prevention of Corruption Act.
(b) Accused G.C.Gupta and V.P.Pandhi, also stands convicted for substantive offences under section 13(1)(d) read with section 13(2) of Prevention of Corruption Act.
C.C.No: 32 / 2011 Page No.161 of 162
Judgement in the matter of:-
CC No.: 32 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(c) Accused Vijay Dayal also stands convicted for substantive offence under section 420 and 471 IPC.
(d) Accused Arvind Kumar Sharma also stands convicted for substantive offence under section 468 IPC.
(e) Accused K.V.Juneja also stands convicted for substantive offence punishable under section 420 IPC.
287. Let all the convicts be heard on the point of sentence.
Announced in the Open Court On the 16 Day of October, 2014.
th (KANWALJEET ARORA) SPECIAL JUDGE : C.B.I. (P.C.ACT) DWARKA COURTS, NEW DELHI.
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