Delhi District Court
Cbi vs M/S Prominent Hotels Pvt Ltd & Ors on 30 May, 2022
IN THE COURT OF MS ANJANI MAHAJAN, CHIEF METROPOLITAN MAGISTRATE, ROUSE AVENUE DISTRICT COURTS COMPLEX, NEW DELHI CBI Vs M/S PROMINENT HOTELS PVT LTD & ORS CASE No. 219/19 CNR No. DLCT12-000705-2019 U/s : 120 B IPC BRANCH : CBI/ACB/DELHI Date of Institution : 24.07.2001 Date on which case reserved for Judgment : 17.05.2022 Date of judgment : 28.05.2022 JUDGMENT
1.Case No. : 219/19
2.Date of the Commission : 1991 to 1994
of offence
3.Name of the accused : (1)M/s Prominent Hotels
Ltd (through Sh. Ramesh
Kakkar, Managing
Director).
: (2) R.Venkatesh S/o Late V
S Rajagopalan, R/o H. No.
108, Sahyog Apartment,
Mayur Vihar, Phase-1,
Delhi.
: Note : Proceedings qua
accused VPS Mann stand
abated vide order dated
20.12.2010.
4.Name of the complainant : Source Information
5.Offence complained of : U/s 120 B IPC (in view of
order dated 21.11.2019).
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted for the offence
alleged.
1. The case set up by the prosecution in the present case is that accused VPS Mann (since expired), while working as Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 1/30 DL-00524 a public servant in the capacity of Head Assistant (Estate Branch), NDMC during the year 1991-1994 entered into a criminal conspiracy with the accused persons M/s Prominent Hotels Ltd and R. Venkatesh with the object to cause wrongful gain to the accused company and wrongful loss to NDMC.
2. It is alleged in the chargesheet that in furtherance to said criminal conspiracy, the accused VPS Mann abused his official position to fraudulently and dishonestly cause wrongful gain to the accused M/s Prominent Hotels Ltd. by wrongly calculating arrears and making false entries in the Demand and Collection Register (D & C Register). The accused VPS Mann being the dealing assistant was asked to calculate the arrears of license fee due from M/s Prominent Hotels but he fraudulently calculated the arrears at Rs. 2,03,56028.84/- instead of the actual figure of Rs. 3,00,35,725.90/- thus causing wrongful gain of Rs. 1,02,10,326.36 to M/s Prominent Hotels Ltd.
3. The prosecution contends that Sh. Ramesh Kakkar is the Managing Director of the accused M/s Prominent Hotels Ltd. which had entered into an agreement with NDMC dated 16.07.1982 for construction, furnishing, providing facilities and commissioning/management of a Youth Hostel. The condition was that the hotel had to pay the guaranteed amount of Rs. 21,08,040/- or 23 percent of the annual gross turn over of the youth hostel business whichever was more from the date of handing over of possession of the plot of land to the licensee.
4. As per the averments in the chargesheet, the concerned file was to be sent to the Accounts Section of Estate Branch for making necessary entries in the D & C Register for the purpose of recovery of payments but the file was not sent to Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 2/30 DL-00524 the Accounts Section after finalization of the agreement and even after finalization of supplementary agreement made afterwards, hence mode of payments and amount of installments as agreed upon by both the parties were not recorded in the D & C Register due to which the entries of amount received from M/s Prominent Hotels Ltd were not entered under proper head and were received under the head of 'excess'.
5. The prosecution avers that this was because the dealing assistant in Allotment Section i.e. VPS Mann did not send the file of M/s Prominent Hotels Ltd to the accounts section. The entries of Rs. 4 lakhs on 23.01.1991, Rs. 3 lakhs on 14.02.1991 and Rs. 3 lakhs on 22.03.1991 vide CR No. A 42, A 14 and A49 respectively against interest received were false, forged and bogus made by VPS Mann. After making such forged entries in the D & C Register in accounts section accused VPS Mann orally asked Sh. S C Mittal the then Dealing Assistant in the account section to prepare a statement showing payments made by M/s Prominent Hotels Ltd to the NDMC for the period from 1988 -1989 to 1991-1992 but Mr. Mittal denied to do so without having written request of the party or his senior officers. Thereafter, accused VPS Mann in criminal conspiracy with accused R. Venkatesh Company Secretary of M/s Prominent Hotels Ltd obtained letter dated 28.02.1994 from R. Venkatesh wherein request for a statement showing payments made by M/s Prominent Hotels Ltd to NDMC for the period from 1988-1989 to 1991-1992 to be supplied by 15.03.1994 was made, as the same was required for the purpose of filing appeal in the Income Tax Department.
6. FIR bearing RC No. 25(A)/1998 was registered by Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 3/30 DL-00524 the CBI U/s 420/471/120 B/511 IPC and Sections 13 (2) R/w section 13 (1) (d) of PC Act 1988.
7. After completion of investigation, charge-sheet was filed before Ld. Sessions Judge on 24.07.2001. Vide order dated 10.08.2001, the accused persons VPS Mann, R. Venkatesh and M/s Prominent Hotels Ltd (through its Managing Director Ramesh Kakkar) were summoned for answering to the allegations of the chargesheet.
8. During the course of arguments on charge, the accused VPS Mann expired. Vide the order dated 21.08.2012, charge for the offences punishable U/s 120B R/w 477 A IPC, Section 15 of PC Act R/w Section 13 (2) R/w Section 13 (1) (d) of PC Act 1988 was framed against the accused persons M/s Prominent Hotels Ltd through its Managing Director Sh. Ramesh Kakkar and accused R. Venkatesh.
9. Vide the order dated 05.06.2015 passed in Crl MC 2254/2011, Hon'ble Delhi High Court allowed the petition of the co-accused persons for transfer of the case to the Court of concerned Magistrate in view of the fact that the only public servant in the present case had expired prior to the date of framing of charges.
10. Thereafter, vide order dated 21.11.2019 the Ld. Predecessor of this Court held that considering the observations made in the order dated 26.11.2015 passed by the Ld. Predecessor Court, only the offence U/s 120 B (2) IPC was made out. Further, it was observed that it was jointly agreed between the prosecution and counsel for the accused that charge may be dropped and notice of accusation for the said offence alone was required to be given to the accused for which even a formal Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 4/30 DL-00524 notice was not required as the same always formed part of the main charge dated 17.07.2012.
THE TRIAL PROCEEDINGS:-
11. In order to buttress its allegations against the accused persons, the prosecution has examined sixteen witnesses.
a) PW-1 was Sh. R N Bhardwaj, Retired as Head Assistant, House Tax Branch, New Delhi Municipal Corporation (NDMC) who was working as Senior Assistant in the NDMC from 1989 to 2001 in the Cash Branch at Palika Kendra. He exhibited the production cum seizure memo dated 02.03.2000 vide which he had given certified copies of documents i.e. certain cheque collection sheets, as Ex.PW1/1. PW-1 also exhibited the cheque collection sheets dated 23.01.1991, 14.02.1991 and 22.03.1991 as Ex.PW1/2 to Ex.PW1/4.
b) PW-2 was Sh. Dal Chand, Retired as Deputy Director Health NDMC, Palika Kendra, New Delhi who was working as Section Officer in Compilation Section NDMC Palika Kendra, New Delhi in the year 1998. He exhibited the production cum seizure memo dated 11.12.1998 vide which he had supplied certain documents, as Ex.PW2/1. PW-2 also exhibited the cashier report in respect of income of Estate Department (cash challan voucher) dated 23.01.1991 as Ex.PW2/2, cashier report in respect of income of Estate Department (cash challan voucher) dated 14.02.1991 as Ex.PW2/3 and cashier report in respect of income of Estate Department (cash challan voucher) dated 22.03.1991 as Ex.PW2/4.
c) PW-3 was Ms. Rewa Mehra who Retired as Section Officer Vigilance, NDMC, Palika Kendra, New Delhi. She exhibited the General Allocation Register for the period 1989 to Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 5/30 DL-00524 June 1993 maintained by her as Ex.PW3/1. PW-3 deposed that the reverse side of the challans Ex.PW2/2 to Ex.PW2/4 contained the summaries of the challan which were prepared by her and which were exhibited as Ex.PW3/2 to Ex.PW3/4 respectively. PW-3 further exhibited the entries recorded in column H other receipt in the voucher /challan Allocation Register dated 23.01.1991, 14.02.1991 and 22.03.1991 for the sum of Rs. 52.30 paisa, Rs. 4.90 paisa and Rs. 200.50 paisa respectively recorded on the basis of summaries prepared by her as Ex.PW3/5 to Ex.PW3/7 respectively.
d) PW-4 was Sh. Rajib Hota, Director International Taxation Chennai who was posted as Deputy and Joint Commissioner of Income Tax Special Range XX from June 1996 to May 1999. He exhibited acknowledgement dated 07.03.1994 of appeal memo issued by the Commissioner of Income Tax of Appeals XV, Delhi as Ex.PW4/1. PW-4 also exhibited Form no. 35 filed under Rule 45 of Income Tax Rules by taxpayer while preferring Appeal before Appellate Authority dated 02.03.1994 signed by MD, Prominent Hotels as Ex.PW4/2.
e) PW-5 was Sh. Ratan Lal Sharma, Retired as Assistant Secretary who was posted as Assistant Director (Estate) sometime between 1998 to September 2000 and prior thereto was posted in Cash Branch of NDMC as Head Cashier /Head Clerk. He exhibited the cash challan dated 21.03.1991 regarding payment received in the department as Ex.PW5/1.
f) PW-6 was Ms. Manju Gulati, PA to Director Tax, NDMC Palika Kendra, New Delhi who was posted as Stenographer to Assistant Director Estate NDMC from 1985 to 1994. She exhibited the letter dated 08.04.1991 of Prominent Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 6/30 DL-00524 Hotels addressed to Director Estate received by Sh. VPS Mann, Head Assistant whose signatures were identified by PW-6, as Ex.PW6/1. Her statement to the CBI was exhibited as Ex.PW6/2.
g) PW-7 Sh. S L Mukhi was the Retired Principal Scientific Officer, CFSL, New Delhi who gave the expert opinion regarding the admitted and disputed signatures. PW-7 exhibited the letters referring documents to the CFSL for examination by Superintendent of Police, CBI dated 18.11.1998 and 07.12.1998 as Ex.PW7/1 and Ex.PW7/2. He also exhibited the standard writings Mark S1 to S24 as Ex.PW7/3 to Ex.PW7/32 and the questioned writings as Ex.PW7/34 to Ex.PW7/36 in the demand and collection register of building and land as Ex.PW7/33. PW-7 exhibited his report as Ex.PW7/37 and forwarding letter in relation to forwarding the report to SP CBI ACB, Lodhi Road, New Delhi by Director Incharge as Ex.PW7/38.
h) PW-8 was Sh. Gyan Chand who retired as Accounts Officer NDMC and was posted in the Estate Department of NDMC from January 1991 to June 1995 as Estate Accountant. PW-8 exhibited the file relating to M/s Prominent Hotels Ltd License Fee as Ex.PW8/1 and letter addressed to Assistant Director Estate by Company Secretary of M/s Prominent Hotel requiring statement of payment made during the period 01.04.1988 to 31.03.1992 as Ex.PW8/2. He also exhibited forwarding letter of the official Sh. Ghimrey dated 18.03.1994 addressed to Company Secretary, Prominent Hotel enclosing statement of payment received by NDMC on account of license fee and interest from M/s Prominent Hotel as Ex.PW8/3 and copy of details of payment as Ex.PW8/4. PW-8 exhibited the fresh calculation detailing actual license fee and month wise Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 7/30 DL-00524 interest as Ex.PW8/5.
i) PW-9 was Sh. Gorakshak Kumar Chopra, Retired Senior Account Officer, NDMC who was posted as Estate Accountant in the Estate Department from 1990 to 1994.
j) PW-10 was Sh. Pradeep Khanna, Senior Liaison Officer, Prominent Hotel who exhibited the seizure memo dated 17.07.2001 vide which he had handed over true copy of Board Resolution dated 17.02.1994 as Ex.PW10/1 and Board Resolution as Ex.PW10/2, whereupon he identified the signatures of accused R. Venkatesh. PW-10 also exhibited the production cum seizure memo dated 26.11.1998 vide which R. Venkatesh handed over documents as Ex.PW10/A. The 11 th annual report of accused Prominent Hotel Ltd for the year 1992 -1993 was exhibited as Ex.PW10/4. The copy of assessment order for the year 1992 -1993 of Prominent Hotel was exhibited as Ex.PW10/5 and photocopy of appeal was exhibited as Ex.PW10/6. PW-10 exhibited the memorandum of articles of association of Prominent Hotel Ltd. as Ex.PW10/7.
k) PW-11 was Sh. B.C. Ghimrey, Retired as Assistant Secretary from NDMC who worked as Assistant Director Estate NDMC upto approximately 1994. He exhibited the license deed executed between NDMC and M/s Prominent Hotels Ltd. as Ex.PW11/1, the report by him and Mr. A K Roy regarding fictitious entries amounting to Rs. 10 lakhs in the demand and collection register as Ex.PW11/2 and report to query raised by Director Estate in relation to Ex.PW11/2 as Ex.PW11/3.
l) PW-12 was Sh. Sumer Chand Mittal who remained posted in the Estate Branch of NDMC from 1993 to 1995. He prepared the statement in relation to the file of accused Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 8/30 DL-00524 Prominent Hotel in which he had taken the three entries Ex.PW7/34 to Ex.PW7/36 which were later found to be bogus on cross checking and thereafter PW-12 prepared the fresh statement on the instructions of Sh. Gian Chand. The specimen handwriting documents bearing the signatures of PW-12 were exhibited by him as Ex.PW12/1 to Ex.PW12/9. The specimen handwriting documents bearing the signatures of Gian Chand were exhibited as Ex.PW12/10 to Ex.PW12/18.
m) PW-13 was Sh. A K Roy, Retired Senior Account Officer. However, record shows that this witness expired during the course of his chief examination. In such circumstances, the part chief examination of PW-13 cannot be read against the accused persons as they were unable to avail of their right to cross examine the witness.
n) PW-14 was Sh. R B Maurya who was posted as Director Estate NDMC in the year 1994. His note on page 320/10 was exhibited as Ex.PW14/1 and his statement U/s 161 Cr.P.C. was exhibited as Ex.PW14/B.
o) PW-15 Sh. Azad Singh was the second Investigating Officer of the case who was posted as Inspector in CBI ACB, New Delhi during the year 1998 to whom further investigation of the case was marked in January 2000. He filed the charge-sheet after completion of investigation.
p) PW-16 Sh. B K Pradhan was the first Investigating Officer of the case who was posted as Inspector in CBI ACB in the year 1998. He exhibited the specimen signature/handwriting of Sh. G K Chopra and Sh. K N Hasija as Ex.PW16/X1 colly and Ex.PW16/X2 colly respectively.
12. The witnesses of the prosecution were duly cross Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 9/30 DL-00524 examined by Ld. defence counsel. Prosecution evidence was closed on 14.01.2022. Thereafter statements of accused persons M/s Prominent Hotels Ltd (through its Managing Director Sh. Ramesh Kakkar) and R. Venkatesh were recorded U/s 313 Cr.P.C. on 07.05.2022. The accused persons did not choose to lead defence evidence.
FINAL ARGUMENTS:-
13. Upon conclusion of trial, final arguments were advanced by Ld. PP for CBI and Ld. defence counsel. I have heard the arguments and perused the record.
REASONS FOR DECISION:-
14. The singular point of determination which arises in the present case is whether it is established from the evidence led that the accused persons M/s Prominent Hotels Pvt Ltd and R. Venkatesh or either of them, entered into a criminal conspiracy with the government official accused VPS Mann (since expired) to commit forgery of the official records of NDMC with the object to cause wrongful gain to the accused persons and wrongful loss to the NDMC.
15. At the outset, the prosecution is credited with proving that the Demand and Collection Register (D & C Register) of the NDMC i.e. Ex.PW7/33 contained three fake/forged entries of interest i.e. Ex.PW7/34 - entry of Rs. 4 lakhs dated 23.01.1991, Ex.PW7/35 - entry of Rs. 3 lakhs dated 14.02.1991 and Ex.PW7/36 - entry of Rs. 3 lakhs purportedly against the accused company M/s Prominent Hotels Pvt. Ltd. Towards this end, the prosecution had adduced the witnesses PW- 3 Ms. Rewa Mehra, PW-5 Sh. Ratan Lal Sharma, PW-8 Sh. Gian Chand, PW-11 Sh. B.C. Ghimrey, PW-12 Sh. Sumer Chand Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 10/30 DL-00524 Mittal whose testimonies, relevant to this aspect, I am discussing hereunder.
16. PW-3 Ms. Rewa Mehra proved the General Allocation Register for the period 1989 to June 1993 as Ex.PW3/1 deposing that it used to be maintained by her. PW-3 Ms. Rewa Mehra also proved the summaries of the challans prepared by her dated 23.01.1991 as Ex.PW3/2, dated 14.02.1991 as Ex.PW3/3 and dated 23.03.1991 as Ex.PW3/4. She testified that entries of Rs. 52.30 paise on 23.01.1991, Rs. 4.90 paise on 14.02.1991 and Rs. 200.50 paise on 22.03.1991 were entered in column 'H other receipt' and these entries were recorded on the basis of the summary prepared by her. The said entries were exhibited as Ex.PW3/5 to Ex.PW3/7. PW-3 Ms. Rewa Mehra categorically testified that no payment of interest was received against any of the entries Ex.PW3/5 to Ex.PW3/7 except the amount as shown towards interest/H other receipts.
17. The cash challans dated 23.01.1991, 14.02.1991 and 22.03.1991 as Ex.PW2/2 colly to Ex.PW2/4 were exhibited by PW-2 Sh. Dal Chand however they had not been proved by PW-2 as he had merely handed over the aforesaid documents vide the production cum seizure memo Ex.PW2/1 and he candidly testified in his cross-examination that he never had any knowledge about these documents and had simply delivered the documents at the asking of the Accounts Officer (Compilation) in December 1988.
18. However, the prosecution examined PW-5 Sh. Ratan Lal Sharma who proved the daily cash challans dated 23.01.1991, 14.02.1991 and 22.03.1991, identifying his signatures on each of them at point A. PW-5 Sh. Ratan Lal Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 11/30 DL-00524 Sharma testified that as per the cash challan, no payment was received of Rs. 4 lakhs on 23.01.1991, Rs. 3 lakh on 14.02.1991 and Rs. 3 lakhs on 22.03.1991.
19. Then, PW-8 Sh. Gian Chand deposed during trial to the effect that the letter of the Company Secretary of M/s Prominent Hotel requiring the statement of payment made during the period 01.04.1988 to 31.03.1992 from the Estate Department of NDMC i.e. Ex.PW8/2 with noting of accused VPS Mann dated 04.03.1994 at point X, was referred to him by Sh. B.C. Ghimrey on 04.03.1994.
20. PW-8 Sh. Gian Chand testified that the Dealing Assistant Mr. Mittal was asked to prepare the statement and PW- 8 made a noting at point X1 at page 159 in this regard and prior to putting up the note at point X1 he checked the statement with the help of Mr. Mittal. PW-8 deposed that the statement was cross-checked with other record of Allocation Register. The three entries made in the Demand and Collection Register totaling Rs. 10 lakhs could not be cross-checked with Allocation Register as the Allocation Register of that particular period was missing. PW-8 further stated in his testimony that the entries related to interest amount therefore Ms. Rewa Mehra (PW-3) was asked to produce the register relating to interest amount of those particular dates.
21. PW-8 testified further that on checking the register it was found that a very meager amount of interest was reflected on those dates and the sum of Rs. 10 lakhs was not covered in the total receipt of interest on those dates. PW-8 deposed categorically that the meager amount of interest reflected was not relating to M/s Prominent Hotels and was only about Rs. 1,000/-
Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 12/30 DL-00524 to Rs. 2,000/-. PW-8 alongwith Mr. D K Chopra (this appears to be a typographical error and reference seems to be to the witness G K Chopra examined as PW-9) brought this fact to the notice of the Mr. A K Roy, the then Accounts Officer.
22. PW-9 Sh. Gorakshak Kumar Chopra corroborated the aforesaid version of PW-8 Sh. Gian Chand, deposing that Sh. Gian Chand intimated him that M/s Prominent Hotels had demanded statement of payments and PW-8 had consulted him on whether such statement could be issued to which PW-9 had suggested that it may be issued after due scrutiny of the record. PW-9 testified further that thereafter Sh. Gian Chand intimated him about three bogus entries amounting to Rs. 10 lakhs and said three entries were also seen by PW-9 and Sh. A K Roy and were brought to the notice of the Director Estate.
23. PW-11 Sh. B.C. Ghimrey testified that he and Mr. A K Roy were directed by the Director, Estate to enquire about the suspicious entries amounting to Rs. 10 lakhs. He unambiguously deposed that on enquiry they came to know that the entries in the D & C Register were fictitious and against the alleged amount of Rs. 10 lakhs only petty amount of other parties had been received in the Cash Branch. He proved the report prepared by himself and Mr. A K Roy as Ex.PW11/2, identifying his own signatures and the signatures of Mr. A K Roy (since deceased) thereon.
24. PW-12 Sh. Sumer Chand Mittal deposed about preparing the statement of M/s Prominent Hotels on the direction of Mr. Gian Chand (PW-8). PW-12 testified that he prepared the statement on the basis of D & C Register and took it to Mr. Gian Chand who thereafter called for the General Allocation Register. PW-12 further testified that Mr. Gian Chand asked him to remove Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 13/30 DL-00524 the three entries Ex.PW7/34 to Ex.PW7/36 which appeared in the D & C Register as they were not in the Cash Register while the Allocation Register pertaining to M/s Prominent Hotels Ltd was missing.
25. PW-14 Sh. R B Maurya supported the version of the above mentioned prosecution's witnesses exhibiting his note Ex.PW14/1 mentioning about three doubtful entries of Rs. 4 lakhs, Rs. 3 lakhs and Rs. 3 lakhs which were found after discussion with AO (E) and ADE III. PW-14 also testified that the Individual Allocation Register (of accused Prominent Hotels) was missing.
26. The testimonies of the aforesaid prosecution witnesses clearly establish that the three entries Ex.PW7/34 to Ex.PW7/36 were scrutinized on being found suspicious and did not correspond with the daily cash challans of the relevant dates nor did they find mention in the General Allocation Register. The testimonies adverted to, of the aforesaid prosecution witnesses are consistent on the aspect of the three entries and amply prove that the entries Ex.PW7/34 to Ex.PW7/36 were fake and forged entries.
27. As to whether the prosecution has been able to establish that it was the accused VPS Mann who had forged the aforesaid entries, this shall be discussed in the later part of the judgment.
28. Before that, let us examine whether the main issue has been proved beyond reasonable doubt by the prosecution, of alleged conspiracy between the accused Late VPS Mann on the one hand and accused persons M/s Prominent Hotels Ltd and R. Venkatesh on the other for making the three bogus entries Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 14/30 DL-00524 showing Rs. 10 lakhs received from the accused company in the Demand and Collect Register when no such amount was ever received by NDMC and causing wrong calculation of dues outstanding against the accused company to be done by the accused VPS Mann, with the intention to cause wrongful gain to the accused company and wrongful loss to the NDMC.
29. In Yogesh Vs State of Maharashtra (2008) 10 SCC 394, the Hon'ble Supreme Court discussed the essential ingredients of the offence of criminal conspiracy thus -
"18. The basic ingredients of the offence of criminal conspiracy are (i) an agreement (ii) the agreement must relate to doing or causing to be done either
(a) an illegal act or b) an act which is not illegal in itself but is done by illegal means. It is therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. Yet, as observed by this Court in Shivnarayan Laxminarayan Joshi & Ors Vs State of Maharashtra, a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators. Therefore, the meeting of minds of the conspirators can be inferred from the circumstances proved by the prosecution, if such inference is possible."
30. In the present case also concededly, there is no direct evidence of conspiracy and the prosecution argues that the conspiracy can be inferred from the circumstances proved by the prosecution and the accused persons are required to be convicted for the offence of criminal conspiracy.
Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 15/30 DL-00524
31. Now, the law on circumstantial evidence has been lucidly reiterated by the Hon'ble Supreme Court of India in the judgment of Tanviben Pankajkumar Divetia Vs State of Gujarat (1997) 7 SCC 156 as under -
" The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court and the law is well-settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can safely be drawn and no other hypothesis against the guilt is possible. This Court was clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some times, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between 'may be true' and 'must be true' and the same divides conjectures from Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 16/30 DL-00524 sure conclusions. (Jawaharlal Das Vs. State of Orissa 1991 (3) SCC 27)".
32. The circumstantial evidence that the prosecution relies on for seeking to bring home the guilt of the accused persons M/s Prominent Hotels Ltd and R. Venkatesh for the offence of criminal conspiracy is thus :
(a) That the forged entries reflecting in the D & C Register of NDMC, purportedly to be towards interest deposited by the accused company M/s Prominent Hotels Ltd. were for the period between January 1991 to March 1991 and the accused R. Venkatesh admittedly sent the request letter dated 28.02.1994 Ex.PW8/2 seeking supply of statement of payments deposited by the company to NDMC for the period from 1988-89 to 1991-
1992 i.e. covering the period pertaining to the three forged entries.
(b) That PW-8 Sh. Gian Chand stated in his chief examination dated 11.04.2013 that vide the letter Ex.PW8/2, the request was made by the accused R. Venkatesh to give a statement of payments only and generally such type of statements were not asked by the party or even by the department.
(c) That the accused company claimed that the statement was required for filing the same with the appeal but the same was not used for such purpose.
(d) That PW-8 Sh. Gian Chand deposed that as he remembered, VPS Mann personally came to him with a request that the statement may be issued urgently and the dealing assistant Mr. Mittal also came to PW-8 saying that VPS Mann was asking for the statement. Ld. PP for the CBI argued that it was extremely suspicious that VPS Mann would show such eager Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 17/30 DL-00524 interest in getting the statement issued to the accused company.
(e) That PW-12 Sh. Sumer Chand Mittal affirmed in his chief examination that VPS Mann verbally asked him to make the statement of M/s Prominent Hotels and he informed VPS Mann that he was working under Mr. Gian Chand and if Mr. Gian Chand would ask him to prepare the statement he would do so. PW-12 testified that Mr. Mann spoke to Mr. Gian Chand who thereafter asked PW-12 to prepare the statement.
(f) That PW-11 Sh. B.C. Ghimrey deposed that accused R. Venkatesh Company Secretary used to visit his office and used to meet VPS Mann which prosecution would argue, reflects their familiarity with each other and affords opportunity for the accused persons to enter into agreement for doing the unlawful acts alleged.
(g) That accused VPS Mann calculated arrears of M/s Prominent Hotels Ltd about Rs. One Crore less than the actual arrears.
(h) That accused company through its Managing Director would be the ultimate beneficiary of the wrongful gains.
(i) That the report of PW-7 Sh. S L Mukhi the forensic expert, is against the accused VPS Mann.
33. However, there are glaring loopholes and missing links in the prosecution's chain of circumstantial evidence which expose the weak nature of the prosecution's case and make it fall flat on its face, as I shall now proceed to elaborate.
34. Firstly, the letter Ex.PW8/2 dated 28.02.1994 written by the accused R. Venkatesh to the Assistant Director Estate, NDMC asking for the statements of accounts for the years 1988- 89 till 1991-92 mentions that the income tax assessment for the Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 18/30 DL-00524 said accounting years was on and the Assessing Officer was insisting on a certified statement of accounts for the aforementioned period. The letter also mentioned the next date of hearing therein to be 15.03.1994 and a prayer that the account statement be supplied by the morning of 15.03.1994.
35. The fact that an Appeal was filed by the accused company before the Income Tax Authority for the assessment year 1991-1992 was affirmed by the prosecution's own witness PW-4 Sh. Rajib Hota who exhibited the Form No. 35 dated 02.03.1994 filed before Appellate Authority by the accused company and signed by MD as Ex.PW4/2. However, PW-4 Sh. Rajib Hota unambiguously testified in his cross examination that he was not posted in the Income Tax Department in the year 1994 and had nothing to do with the assessments or appeal of Prominent Hotels in the year 1994. He also went on testify that he was never shown the entire appeal file as it was in the custody of the C.I.T (Commissioner of Income Tax), Appeals and not with the Assessing Officer.
36. Now, it is true that the letter Ex.PW8/2 does not mention that the statement was required for appeal purpose but the specific date of hearing of 15.03.1994 is mentioned in the letter and the testimony of PW-4 does in fact show that in March 1994 the accused company had preferred an Appeal before the Income Tax Appellate Authority.
37. Neither did the IO cite the concerned official of the Income Tax Appellate Authority as witness, nor did the prosecution seek to summon any such witness or the complete records of the appeal filed by the accused company in order to ascertain the veracity or falseness of the claim of the accused Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 19/30 DL-00524 persons that the statement was required to be filed before the Income Tax Appellate Authority and was so filed or not.
38. As such however, in response to a question put by Ld. defence to PW-4 Sh. Rajib Hota that if the accused company wanted to claim certain amount towards future liability to an authority like NDMC would it have to make the claim alongwith certain documents PW-14 answered in the affirmative, specifically stating that the company would have to substantiate its claim alongwith a certificate or a statement of account from NDMC. The accused persons maintained in S.A. that the details sought vide letter dated 28.02.1994 were required for the purpose of submitting with the Income Tax Department in the appeal. The prosecution has failed to establish through cogent evidence that the document sought was not utilized for the purpose for which the accused persons had applied for the same.
39. Secondly, it has come out in the chief examination of PW-8 Sh. Gian Chand itself that the practice of Prominent Hotels was to deposit money towards license fee and interest only through challan and that letters were also received alongwith cheques from the accused company towards license fee and interest. Further, PW-11 Sh. B.C. Ghimrey admitted in his cross examination that the accused company had never made any payment in cash and all the payments towards license fee and interest were paid by cheque.
40. The accused persons M/s Prominent Hotels through its Managing Director and R. Venkatesh have taken the stance in their statements U/s 313 Cr.P.C. that all the payments used to be made by way of cheque or pay order. It then seems rather strange that the accused company and R. Venkatesh would instead of Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 20/30 DL-00524 trying to be discrete about the alleged conspiracy if they were so part of it, rather draw attention to themselves by getting recorded unusually huge cash entries towards alleged interest deposit, when otherwise the payments used to always be done by cheque or pay order.
41. Thirdly, as to the claim regarding alleged unlawful benefit to the accused company and corresponding loss to NDMC, the CBI has not adduced any evidence to show that the NDMC had raised any demand of any pending interest or any other amount upon the accused company which could have prompted the accused persons to conspire with the Government official VPS Mann to get recorded forged entries of interest in the D & C Register and malafidely show that no interest was due from them.
42. There is also nothing on record to suggest that the accused company and R. Venkatesh made any claims for refund of excess interest or adjustment of arrears of interest on the basis of such forged entries. In fact, PW-11 Sh. B.C. Ghimrey fairly conceded in his cross examination that the accused company had never claimed to have made any cash payments on account of license fee or interest or arrears.
43. PW-12 Sh. Sumer Chand Mittal in his cross examination was unaware as to whether there were any outstanding or not payable by the accused company to NDMC for the year 1991 onwards however he agreed that if there were any outstandings, on any account, a bill was sent to the party who had outstandings.
44. Admittedly, no such bill has been adduced in evidence by the prosecution to show any dues of the period 1991 Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 21/30 DL-00524 which could have been a motive for the accused persons to get the records of NDMC fudged.
45. The dispute that the accused company had raised with the NDMC was in relation to license fee qua which admittedly recourse to legal remedies by way of pursuing the matter with the Income Tax Authorities had been done by the accused company and its Company Secretary accused R. Venkatesh.
46. No evidence has been adduced by the prosecution to show that the accused company ever raised any dispute regarding interest paid by the company to NDMC. PW-8 Sh. Gian Chand was asked a pointed question by Ld. Defence counsel as to whether the statement dated 18.03.1994 Ex.PW8/4 given to Prominent Hotels alongwith covering letter Ex.PW8/3 was ever challenged by Prominent Hotels to be incorrect to which PW-8 responded that they were not so challenged.
47. As the alleged entries pertained to the period January 1991 to March 1991, the prosecution was required to elaborate through convincing evidence as to how and in what manner the request of the accused company and R. Venkatesh seeking the account statement for, inter alia, the aforesaid period, by way of letter dated 28.02.1994 i.e. three years later, would have caused wrongful gain to the accused company which the prosecution has failed to do. The CBI has not adduced the Balance Sheets of accused company for the relevant period which would, if malafide intention was there, correspondingly reflect such fictitious payments as being made to NDMC.
48. Fourthly, the only piece of evidence to link the accused VPS Mann with the accused R. Venkatesh as rightly Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 22/30 DL-00524 pointed out by Ld. Defence counsel, is the mere deposition of PW-11 Sh. B.C. Ghimrey to the effect that R. Venkatesh Company Secretary of M/s Prominent Hotels used to visit his office and meet VPS Mann. In the same breath, PW-11 deposed that sometimes R. Venkatesh used to visit him in the absence of VPS Mann. Pertinently, in his cross examination PW-11 Sh. B.C. Ghimrey contradicted his previous statement by deposing that his room was separate from the Branch and therefore he could not tell whether R. Venkatesh at all used to visit NDMC.
49. Now, it is not the case of the prosecution that the accused VPS Mann had nothing to do with the file of M/s Prominent Hotels. It is the testimony of the prosecution's own witness PW-8 Sh. Gian Chand who testified in his cross examination that it was VPS Mann in the Execution Section of NDMC who was the Dealing Assistant dealing with the unit of Prominent Hotels and it was Mr. S C Mittal in the accounts section of NDMC who was the Dealing Assistant.
50. Further regarding receipt of letters in the NDMC, PW-6 Ms. Manju Gulati admitted in her chief examination itself, after being declared hostile, that she had given a statement that although the letters were addressed to Director Estate NDMC yet the same were received in the office of Assistant Director Estate NDMC and there were many letters which had been received by VPS Mann the then Head Assistant Commercial Project NDMC and Sh. B.C. Ghimrey, the then A D Estate NDMC. She further admitted that she used to accept/receive these letters and send them to VPS Mann, the concerned Inspector.
51. From the testimony of PW-6 Ms. Manju Gulati, it appears that letters received in their office in ordinary course Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 23/30 DL-00524 used to be received by VPS Mann and B.C. Ghimrey so then there is nothing unusual about the letter dated 28.02.1994 Ex.PW8/2 being received by VPS Mann which was put up before PW-11 Sh. B.C. Ghimrey who deposed that he forwarded the letter to the Account Section for compliance. PW-11 Sh. B.C. Ghimrey nowhere deposed that the letter Ex.PW8/2 did not reach him through proper channel. According to PW-8 Sh. Gian Chand, the letter Ex.PW8/2 addressed to Assistant Director, Estate NDMC by the accused R. Venkatesh was received in the administrative section of the Department which was then referred to him by PW-11 Sh. B.C. Ghimrey and contained the noting of VPS Mann at point A.
52. Neither PW-8 Sh. Gian Chand nor any other prosecution witness stated that such letters were required to be received through some other channel or that VPS Mann was not authorized to make the noting as made at point A on Ex.PW8/2. Therefore, the circumstance of the letter Ex.PW8/2 having a noting of VPS Mann is not evidence of alleged conspiracy between the accused VPS Mann and accused company and R. Venkatesh.
53. Fifthly, the prosecution has failed to prove its allegation that first the accused VPS Mann orally asked Mr. S C Mittal (PW-12 Sh. Sumer Chand Mittal) to provide the account statement of the accused company Prominent Hotels Pvt Ltd and thereafter conspired with the accused company and R. Venkatesh pursuant to which accused R. Venkatesh wrote the letter Ex.PW8/2 for supply of the account statement. PW-12 Sh. Sumer Chand Mittal in his chief examination deposed that Mr. Mann had verbally asked him to make the statement of M/s Prominent Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 24/30 DL-00524 Hotel and he informed the accused VPS Mann that he worked under Sh. Gian Chand and would prepare the statement if Mr. Gian Chand asked him to. PW-12 deposed that thereafter Mr. Mann spoke to Mr. Gian Chand and informed that a written request be made with respect to the statement required and thereafter Gian Chand asked him to prepare the statement. In his cross examination, PW-12 admitted that the statement was made on the asking of Gian Chand. PW-12 was not aware about the written request whereby the accused M/s Prominent Hotels asked for details of the payments. He was not aware whether NDMC had already received the letter on the date the request was made to him to make the statement of entries.
54. PW-8 Sh. Gian Chand in his chief examination first mentioned about the letter Ex.PW8/2 deposing that the request was made to give a statement of payments only and he consulted Mr. G K Chopra. Thereafter PW-8 went on to testify that as he remembered, VPS Mann personally came to him with a request that the statement may be issued urgently. From the testimony of PW-8 Sh Gian Chand it cannot be presumed that the oral request was made by the accused VPS Mann prior to the letter Ex.PW8/2 being sent by the accused R. Venkatesh.
55. No other witness of the prosecution has definitively deposed that the oral request by accused VPS Mann was made prior to the receipt of the letter Ex.PW8/2 in the office of the NDMC. Therefore, the prosecution's said plea has remained unsubstantiated.
56. Sixthly, the prosecution has not adduced any evidence of flow of consideration in cash or kind from the accused company and/or accused R. Venkatesh to the accused Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 25/30 DL-00524 VPS Mann which could go towards establishing the complicity and agreement for doing the unlawful act between the accused persons.
57. Seventhly, regarding the difference in the arrears calculation as done by the accused VPS Mann and PW-8 Sh. Gian Chand alongwith Mr. A K Roy, PW-8 Sh. Gian Chand clearly admitted in his cross examination that the statement Ex.PW7/27 which was prepared by Mr. VPS Mann was only till 31.03.1992 while the statement prepared by PW-8 and Sh. A K Roy was upto June end 1994 i.e. including 15 additional months as compared to the statement prepared by accused VPS Mann so naturally and logically, there is bound to be a marked difference in the statements.
58. However, considering the best case of the prosecution, that the calculation was wrongly done by the accused VPS Mann, what is the evidence on record to prove that same was done deliberately, as part of a conspiracy with the co- accused persons to cause wrongful gain to the accused company and could not be attributed to human error ? No such cogent evidence has been adduced by the prosecution. The prosecution has been entirely unable to establish the meeting of minds of the accused VPS Mann with the accused company through its director and accused R. Venkatesh.
59. This brings us to the last but extremely relevant aspect of the matter regarding the allegation that forgery of the official record was committed by the accused VPS Mann as part of the alleged conspiracy with the co-accused persons.
60. The sole evidence on which the prosecution relies to connect the accused VPS Mann with the forged entries Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 26/30 DL-00524 Ex.PW7/34 to Ex.PW7/36 is the report of the handwriting expert PW-7 Sh. S L Mukhi i.e. Ex.PW7/37. This report compares the disputed writings with the admitted handwriting of the accused VPS Mann which were taken by the IO/PW-16 Sh. B K Pradhan during the course of investigation on 22.04.1998 purportedly in the presence of some independent witnesses Sh. A S Mann and Sh. R K Aggarwal. The independent witnesses were never examined and the request U/s 311 Cr.P.C. of the prosecution in this regard was declined by the Court vide order dated 15.12.2021 however in any case, even the examining of such witnesses would not have aided the prosecution's case. The reason for the same lies in the ratio of the judgment of the Full Bench of Hon'ble Delhi High Court in Sapan Haldar & Anr Vs State Crl A. 804/2001 decided on 25.05.2012 wherein on the subject of admissibility of sample handwriting or signature obtained from a person accused of having committed an offence or during investigation of a crime by the Investigating officer it was held as under -
"31 We answer the reference as follows:-
(i) Handwriting and signature are not measurements as defined under clause (a) of Section 2 of The Identification of Prisoners Act, 1920. Therefore, Section 4 and Section 5 of The Identification of Prisoners Act, 1920 will not apply to handwriting sample or a sample signature. Thus, an investigation officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence.
(ii) Prior to June 23, 2006, when Act No. 25 of 2005 was notified, inter-alia, inserting Section 311A in the Code of Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 27/30 DL-00524 Criminal Procedure, 1973, even a Magistrate could not direct a person accused to give specimen signatures or handwriting samples. In cases where Magistrates have directed so, the evidence was held to be inadmissible as per the decision of the Supreme Court in Ram Babu Mishra's case (supra). According to Section 73 of the Indian Evidence Act, 1872, only the Court concerned can directed a person appearing before it to submit samples of his handwriting and/or signatures for purpose of comparison".
61. In view of the aforesaid settled law, the handwriting sample of the accused taken by the IO in the present case admittedly relating to the period prior to June 23, 2006 when Section 311 A Cr.P.C. was incorporated into the statute, the opinion of the expert being based on such specimen signatures cannot be held to be admissible in evidence.
62. Interestingly, the prosecution's witnesses PW-6 Ms. Manju Gulati, PW-8 Sh. Gian Chand and PW-11 Sh. B.C. Ghimrey had professed to identify the signatures of the accused VPS Mann on certain documents. Therefore, their testimonies regarding opinion on the maker of the forged entries being, or not being, the accused VPS Mann would have been relevant U/s 47 Indian Evidence Act, 1872 but they were never called upon by the prosecution to give their opinion regarding the maker of the forged entries Ex.PW7/34 to Ex.PW7/36.
63. No other evidence has been adduced by the prosecution to establish that the forged entries were prepared by the accused VPS Mann. Therefore, the crucial link in the purported chain of circumstantial evidence in the present case that the accused VPS Mann forged the entries Ex.PW7/34 to Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 28/30 DL-00524 Ex.PW7/36 has not been proved by the prosecution. On this very score prosecution's case hopelessly fails.
64. The prosecution witness PW-12 Sh. Sumer Chand Mittal and PW 8 Sh. Gian Chand deposed to the effect that the D & C Register used to be kept in the open and not under lock and key prior to the alleged incident. Thus, virtually any official of the NDMC could have accessed the same and it may be a case of someone wanting to tarnish the reputation of the accused company. Further, while PW-12 Sh. Sumer Chand Mittal deposed that among other duties, he used to maintain the individual Allocation Register and D & C Register being posted as Senior Clerk, Estate Branch NDMC from 1993 to 1995; according to PW-8 Sh. Gian Chand, one Mr. K N Hasija was the Dealing Assistant on the same seat prior to Mr. Mittal. As the allegations pertains to the period between 1991 to 1994 and PW-12 was posted in Estate Branch only from 1993 onwards, the stand of Mr. K N Hasija would have been important to note regarding the forged entries in the D & C Register but he was never cited by the CBI.
65. On a conspectus of the facts and evidence led, it can only be concluded that the prosecution's case against the accused persons M/s Prominent Hotels Pvt. Ltd. through its Managing Director and accused R. Venkatesh is merely based on conjectures, suspicions and surmises.
66. The prosecution has failed to adduce cogent evidence to connect the accused persons M/s Prominent Hotels Pvt Ltd and R. Venkatesh with the alleged offence U/s 120 B IPC. The benefit of the doubt is bound to be extended to the accused persons.
Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 29/30 DL-00524
67. Consequently, the accused persons M/s Prominent Hotels Pvt Ltd (through its Managing Director Sh. Ramesh Kakkar) and R. Venkatesh are acquitted for the offence U/s 120 B IPC. Digitally signed by ANJANI ANJANI MAHAJAN MAHAJAN Date:
2022.05.30 17:07:34 +0530 Announced in the Court (ANJANI MAHAJAN) on 28.05.2022 CMM/RADC/28.05.2022 Certified that this judgment contains 30 pages and each page bears my signatures. Digitally signed by ANJANI MAHAJAN ANJANI Date:
MAHAJAN 2022.05.30
17:07:42
+0530
(ANJANI MAHAJAN)
CMM/RADC/28.05.2022
Case No. 219/19 CBI Vs. M/s Prominent Hotels Pvt Ltd & Ors 30/30
DL-00524