Delhi District Court
I) Babu vs . State Of Kerela, (2010) 9 Scc 189 on 28 October, 2021
1
IN THE COURT OF AMIT KUMAR, SPECIAL JUDGE,
PC ACT (CBI) - 04, ROUSE AVENUE COURTS, DELHI.
CC No. 111/2019
R.C. No. 45(A)/01/CBI/ACB/ND
CNR No. DLCT11-000492-2019
CENTRAL BUREAU OF INVESTIGATION
VERSUS
1. SH. SUMANT KUMAR MISHRA,
S/O LATE SH. JAGDISH MISHRA,
R/O VILLAGE CHUPCHUPAUR,
POST OFFICE MEHARWA, PS MEHARWA,
DISTRICT SIWAN (BIHAR) (A-1)
2. SH. S.K. SRIVASTAVA,
S/O LATE SH. DAYANAND ARYA,
R/O VILLAGE AND POST OFFICE LADUKA
JOUNPUR (UP).
HEAD CLERK (STORES),
O/O SEFO, ALAMBAGH, DEPOT,
LUCKNOW (NORTHERN RAILWAY)
(SINCE DECEASED) (A-2)
3. SH. R.S. GUPTA,
S/O SH. BHAJAN LAL,
R/O AE-194, SHALIMAR BAGH,
DELHI-110088. (A-3)
4. SH. SURESH KUKREJA,
S/O LATE DR. K. KUKREJA,
R/O 441, SUNHARI BAGH APARTMENT,
SECTOR -13, ROHINI, NEW DELHI. (A-4)
5. SH. SHYAM SUNDER MANGAL,
S/O LATE SH. K. M. MANGAL,
R/O A-1/102, UNIWORLD CITY,
SECTOR 30, GURGAON, HARYANA. (A-5)
CC No. 111/2019 Page 1 of 43
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6. SH. JEEVAN KUMAR,
S/O SH. RAM SINGH,
R/O AE-194, SHALIMAR BAGH,
DELHI-110088. (A-6)
(ACCUSED PERSONS)
Date of Institution : 25.10.2004
Date of Arguments : 18.10.2021
Date of Judgment : 28.10.2021
JUDGMENT
1. The present case was registered by CBI on the basis of source information that during the period from February, 1996 to August, 1997, M/s. Gupta Backalite Factory through its Proprietor Jeevan Kumar (A6), M/s. Kukreja Transformers Manufacturing Company through its Proprietor Suresh Kukreja (A4), M/s. Aristo Light Industries and M/s. Aristo Evaporators through its Proprietor R.S. Gupta (A3) and M/s. Arun Electrical through its Proprietor Shyam Sunder (A5) entered into criminal conspiracy with Sh. C.P. Trikha, the then Sr. Electrical Foreman, Alam Bagh Railway Station, Northern Railway, S.K. Srivastava, Head Clerk, Stores, Alam Bagh (deceased A2) and other unknown officials of Northern Railway and office of Chief Controller of Accounts, 16, Akbar Road, New Delhi with an object to cheat and cause undue pecuniary advantage to themselves by placing 74 fake purchase orders of electrical items on the above said firms of A3 to A6 by abusing their officials position as public servant. The said purchase orders were never issued by the office of DCOS, Northern Railway, CC No. 111/2019 Page 2 of 43 3 Lucknow. In pursuance of this conspiracy, the accused firms A3 to A6 obtained payment of about Rs. 17 lacs from the office of Chief Controller of Accounts Department of Supply, New Delhi against purported supply made by them on the basis of 74 fake supply orders. C.P. Trikha was shown as consignee in all these orders and deceased A2 S.K. Srivastava accepted material on 29 fake purchase orders for which no requisition was placed. As per charge sheet, the investigation revealed that deceased A2 while working as Head Clerk, Stores town supply, Alam Bagh, Northern Railway entered into criminal conspiracy with A1 namely Sumant Kumar Mishra proprietor of M/s. Prince Sales Corporation and in pursuance thereof, caused loss of about Rs. 17 lacs to the Government exchequer/Railway department. A1 and A2 generated 72 fake and forged purchase orders and A2 deliberately accepted the supplies of electrical items against 24 such fake orders. No indent for the said electrical items was prepared by A2 as per his duty. The receipt of these items were not recorded in the stock ledger. It was only after detection of the above fraud against 24 fake purchase orders, the same was entered in the stock register on or after 16.08.1997 on the instructions of Seniors.
2. The present charge sheet was filed against Sumant Kumar Mishra (A1) and S.K. Srivastava (since deceased) (A2) by placing them in column no. 1 whereas A3 to A6 along with C.P. Trikha were kept in column no. 2 along with CC No. 111/2019 Page 3 of 43 4 unknown officials from the office of Chief Controller of Accounts (CCA) and Northern Railways.
3. My Ld. Predecessor vide order dated 03.01.2005 took the cognizance of the offences not only against A1 and A2, who were placed in column no. 1 of the charge sheet but also took cognizance of the offences against A3 to A6, who were kept in column no. 2 of the charge sheet and were also shown as Prosecution witnesses at serial number 2, 3, 4 and 10 in the list of witnesses filed with the charge sheet. Apart from taking cognizance vide this order, further investigation was also ordered against unknown public servants mentioned in column no. 2. In pursuance to that further investigation order, CBI filed status reports on various dates and lastly on 10.09.2008 wherein it was recorded that Pay & Accounts office, CCA, New Delhi has cleared and paid all the bills as per rules. The supply orders involved in the present case were received in the Pay & Accounts office and were entered in the supply order diary. The supply orders were sent to concerned section and when they were found in order, they were entered in the payment register and when the supplier submitted the bill in question along with the inspection note and the copy of the railway receipt, the bills were entered in the diary and passed for payment and once the bill were passed, then the same were sent to the cheque section for preparing the cheque in the name of the supplier.
4. In order to process the bill, inspection note of the quality CC No. 111/2019 Page 4 of 43 5 control wing and the copy of the railway receipt are necessary and since all these were available in all the bills presented by the supplier, the accounts office was not supposed to verify the genuinity of bills and otherwise also, railway receipts in question were genuine and the random inspection of the item dispatched by the supplier to the consignee was conducted and the consignment was actually delivered at Char Bagh Railway Station, Lucknow and all such documents are already on court record. The further investigation in brief could not find out involvement of any other official or private person. Copies of the charge sheet were duly supplied to the accused persons and vide detailed order on charge dated 18.05.2009, following charges were directed to be framed against the accused persons:
Sl. Name of the Charges framed No. accused A1 S.K. Mishra U/s 120B IPC r/w 420, 468, 471 IPC and 13 (2) r/w 13 (1) (d) PC Act, U/s 420/468/471 IPC r/w 120B IPC A2 S.K. Srivastava U/s 120B IPC r/w 420, 468, 471 IPC (since deceased) and 13 (2) r/w 13 (1) (d) PC Act, U/s 420/468/471 IPC r/w 120B IPC and U/s 13 (2) r/w 13 (1) (d) of the PC Act A3 R.S. Gupta, Suresh U/s 120B IPC r/w 420, 468, 471 IPC to Kukreja, Shyam and 13 (2) r/w 13 (1) (d) PC Act A6 Sunder and Jeevan Kumar
5. Accused S.K. Srivastava (A2) died on 07/08/2009 and proceedings against him stands abated vide order dated 23.11.2009.
CC No. 111/2019 Page 5 of 43 6PROSECUTION EVIDENCE
6. The prosecution to prove its case examined 13 witnesses.
PW1 is Brij Bihari Singh, the then Loading-Unloading Clerk at New Delhi Railway Station. He explained the process of booking of goods by the railways. As per his statement, the goods are booked by the Northern Railway in two ways, one directly by the Parcel Office and another booked through outsource agency appointed by the Northern Railway. In case of direct booking, the party brings the goods to the parcel office and fills a forwarding note furnishing the description of the goods booked and the destination. No physical verification of the goods is done by the railways and the railways issue railway receipt and an entry is made in the cash book in triplicate and before loading the goods, the entry is made in the loading book also called dispatch register. In the booking through outsource agency, the goods are delivered by such agency at City Booking Agency office of the railway and then it is the responsibility of the staff of City Booking Agency to send the goods for loading and the receipt is handed over to the officials of outsource agency. The witness was shown several railway receipts issued by such private agency at Delhi Subzi Mandi Northern Railway office but he could not confirm, if the goods against these receipts were dispatched or not without seeing the dispatch/loading register. In the cross examination, he stated that all the receipts shown to him during his examination in chief have been issued by CC No. 111/2019 Page 6 of 43 7 authorized agent of Northern Railway and the said authorized agent used to handover all the goods to the godown clerk at railway station. The goods so received are checked for the railway receipt number on the parcel and same is matched with the number on the railway receipt (RR) and only then, it is loaded in the train as well as loading book register. The said RR number is also mentioned in the dispatch register.
7. PW2 is Sh. S.L. Mukhi, who was Sr. Scientific Officer working with Truth Lab and has retired from CFSL, New Delhi. He gave report regarding the authorship of signatures on the questioned documents i.e. purchase orders Ex. PW2/1 to PW2/27 with that of specimen signatures of PW5 Sh. S.A.M. Naqvi, the then Divisional Controller of Stores (DCOS), Hazrat Ganj, Northern Railway, Lucknow and opine that these signatures are not that of S.A.M. Naqvi. He also gave his opinion regarding the handwriting on these purchase orders Ex. PW2/S4 to PW2/S81 and gave his opinion that these writings matched with the specimen writing of A1 S.K. Mishra. He also gave his opinion that signatures on purchase orders Ex. PW2/71 to PW2/109 could not be connected with the specimen signatures of one Sh. Shyam Bihari Dhusea who was predecessor of S.A.M. Naqvi in office of DCOS. He proved on record his detailed report in this regard Ex. PW2/A. In the brief cross examination, he stated that he used video spectral comparator and stereo zoom microscope for examination of the documents but CC No. 111/2019 Page 7 of 43 8 he has not appended his rough notes prepared during examination of these documents with his report. He admitted that with the course of time, the handwriting of a person changes but clarified that basic features can still be identified.
8. PW3 is Dr. M.A. Ali, who was working as Principal Scientific Officer at CFSL, New Delhi at the relevant time and retired in 2006. He gave his report Ex. PW3/D in respect of the signatures of A1 on two documents Ex. PW3/A and PW3/B i.e. an affidavit of A1 and another bearing signatures of A1 on a document signed by him written to A4. He compared these questioned document with the specimen handwriting and signature of A1 obtained on 17 sheets Ex. PW3/C1 to PW3/C17 and found that this affidavit Ex. PW3/A was written by A1 in his hand and the letter Ex. PW3/B bears the signature of A1. In the cross examination, he stated that there is no error in comparison of the handwriting with video spectral compactor and microscope and the report is 100% correct. He has not appended his rough notes with the report as the notes are destroyed once the final report is ready.
9. PW4 is C.P. Trikha, who was posted as Sr. Electrical Foreman at Town Supply, Alam Bagh, Northern Railway, Lucknow at the relevant period and was looking after the maintenance of 7 sub-stations for electrical maintenance. He stated that there are two kinds of store items procured for maintenance purposes i.e. stock items and non-stock CC No. 111/2019 Page 8 of 43 9 items. The stock items are always available in the store at Town Supply office under the custody of Store Clerk whereas the non-stock items are procured from the office of Dy. Controller of Stores by submission of printed proforma. The said proforma being filled up by him and the store clerk, was sent to division office after the signatures of Assistant and Divisional Electrical Engineer and then the proforma was sent to the office of DCOS. Deceased A2 was the In-charge of Stores of stock as well as non-stock items during the period 1996-97 and his duty included the maintenance of store and store ledgers, book balance, ground balance, to draw material from station parcel office of non-stock items and to take the delivery of items from DGS&D and to maintain the records of railway receipts related to non-stock items. He identified document D4, which was non-stock item ledger for the period 01.01.1992 to 14.10.1997. He also identified the handwriting of A2 in the register, which was exhibited as Ex. PW4/A. He further stated that two entries in this register dated 04.06.1997 and 05.06.1997 relate to the delivery taken by A2 from the parcel office and A2 did not open all the parcels nor made all the entries. He opened only some of the parcels. PW4 raised objection with A2 as to why he had not made the entries nor opened the parcels and directed him to do it immediately. A2 opened some parcels in the presence of PW4 and then PW4 realized that many parcel items were not indented and some parcels had items, which have CC No. 111/2019 Page 9 of 43 10 already been delivered but they were again being supplied. PW4 informed this matter to Sh. Om Prakash, who was Sr. Divisional Electrical Engineer, who asked PW4 to submit him the list of such items whose entries are not recorded in the register and then, A2 made separate register and made entries in that after 16.09.1997 and the said register was exhibited as Ex. PW4/B. He stated that had the said entries been made in the regular register Ex. PW4/A, then there was no necessity to prepare the second register. In the cross examination, PW4 stated that he does not remember that if he told the investigating officer that the entries in the register Ex. PW4/B relates to the deliveries taken by A2 from the parcel office and A2 kept the said parcels in his office and store. He did not inform the IO that he asked A2 to open the parcels and found that some of the parcels had not been indented and some items had earlier been received under some indent and were delivered again. He clarified that he was not questioned by the IO on these lines. He visited the store after 4th or 5th June 1997 and found the parcels lying in the store. The register Ex. PW4/B was not lying there. No departmental action was taken against A2 by the then Sr. Divisional Electrical Engineer Mr. Om Prakash. The stocks are inspected after every two years. The stock verifier used to verify the stock on behalf of Sr. Divisional Accounts Officer, who is the auditor of the stocks and accounts. The stock verifier did not raise any objection with regard to register Ex. PW4/B nor PW4 CC No. 111/2019 Page 10 of 43 11 pointed out any deficiency to him. The entries in the ledger were made on the basis of purchase orders and not railway receipts. The stock verifier would first ensure that all the entries have been in the register and then only he will visit for stock verification. Verifications in the ledger Ex. PW4/A were made on 08.10.1997 and 14.10.1997. He did not put any date below his signatures in registers Ex. PW4/A and PW4/B. The purchase orders Ex. PW2/1 to PW2/9 do not bear his signatures. The consignee as per these purchase orders was PW4 himself. He does not know who has signed as DCOS on these purchase orders. The proforma for purchase order of his department was same as existing on Ex. PW2/1 to PW2/109. The inspection note Ex. PW4/DX1 bears his signatures at point X and it was prepared by Inspection Wing of DGS&D. As per procedure, 98% of the payment used to be made to the vendor on the basis of railway receipt and 2% withheld to be paid after receipt of goods and their entry in the ledger. The purpose of sending the copy to the accounts department was to inform that goods have been received and remaining payment may be released. All the inspection notes Ex. PW2/DX2 to PW2/DX24 bears his signature and the actual date of delivery noted is 04/05.06.1997 and bears his signatures in the new ledger Ex. PW4/B. The inspection notes used to be received by post in his office by any of the official sitting there. The inspection notes were received either from the vendor or DGS&D. The goods are released from the parcel office CC No. 111/2019 Page 11 of 43 12 only after receipt of railway receipts. Goods could be released to any one authorized by him on production of railway receipt. The railway receipts and the inspection reports were directly received in his office being consignee, by post from the vendor. He did not receive consignee copy of the purchase order from the office of DCOS. The order issued from DCOS office for procurement of material is known as purchase order. Ex. PW2/1 to PW2/109 are the supply orders issued by DCOS office and sent to the concerned departments. He can recognize A1 by face as he had seen him in DRM office, Electrical branch, Northern Railway, Lucknow. CBI did not obtain specimen signatures of handwriting of PW4. He denied the suggestion that he used to call A1 for handing over the copies of the supply orders after receiving it from DCOS office.
10. PW5 is Sh. S.A.M. Naqvi, who was the Divisional Controller of Stores (DCOS) Hazrat Ganj, Northern Railway, Lucknow and his duties were to procure items under local purchase power against non-stock indents of the value of Rs. 25,000/- per case and coordinate with other branches for distribution of uniforms and stationery items. Various departments of the division used to sent indents for urgent requirement at local level and these indents were registered in the demand register maintained at his office and the demand number were recorded on the indent files and after examinations, orders were prepared on printed form called Form No. DGS&D-131 of CC No. 111/2019 Page 12 of 43 13 Northern Railway. Six copies of order containing 16 digits purchase order number were prepared of which the first two digits i.e. 96 represent the number allotted to DCOS office, the next two digits would represent the year and the next four digits shall represent the serial number of the demand register followed by digit 2 indicating the purchase order placed under the rate contract and digit 75 was fixed number for rate contract and the next three digits indicate the serial number of the purchase order register and the last digit 01 generally fixed because the purchase order related to one item/one consignee/one indenter. After making these entries in the purchase order register, copies were sent to Chief Controller of Accounts, DGS&D, Director, Quality Assurance, DGS&D, to the consignee, to the railway divisional account office, to the supplier and one copy retained in the office. It was the responsibility of the consignee to follow up with the supplier for supply. The office of DCOS comes into picture only after intimation from the consignee, in case the supplier failed to supply. On 08.09.1997 while discussing with other Accounts Officers, he found that the register for purchase orders for the year 1996 and 1997 were fake as they were not entered into the purchase registers and he immediately informed the authorities in this regard vide letter Ex. PW5/A. The witness was shown supply orders Ex. PW2/1 to PW2/33, PW2/71, PW2/72 which did not bear supply order number of his office nor his signatures and his signatures have been CC No. 111/2019 Page 13 of 43 14 forged on these documents. He further stated that the supply orders Ex. PW2/36, PW2/73, PW2/75, PW2/76, PW2/78 to PW2/106, PW2/108 and PW2/109 do not bear the supply order number of his office but he cannot tell the signatures on these documents as he was not posted as DCOS at the relevant time. In the cross examination, he stated that during his tenure from 01.01.1997 to 28.02.1998, he did not find any order placed on A4. He does not know if any payment was released to A4 during his tenure or prior thereto. Audit was done in his office every six months. He could not detect the purchase orders pertaining to this case to be fake during regular check up of the record or registers. During his tenure, copy of the purchase order was not given by hand to the supplier in person. He does not know the procedure followed by his predecessor. The inspector of quality assurance of DGS&D used to visit the premises of supplier for inspection of goods on the basis of purchase order sent. As per the terms, the payment of 98% or 95% were made against inspection certificate and permanent way bill( railway receipt) by the accounts office. Permanent way bill is issued by the railway parcel office where the supplier has handed over the goods to be dispatched to the consignee. The copy of the permanent way bill (railway receipt) and inspection certificate are sent to the consignee by the supplier. One purchase order is issued only for one consignee. The format used in Form 131 has been prescribed by DGS&D and is available with DCOS CC No. 111/2019 Page 14 of 43 15 office in A3 paper size printed by Northern Railway Printing Press. On the instructions of Controller of Stores, Northern Railway, Baroda House, New Delhi, the numbering of purchase order from 01.01.1997 were changed from alpha numerical 16 digits to computerization. The said instructions were intra- departmental. The role of the supplier starts only after receiving the purchase order. He did not make an enquiry with Mr. C.P. Trikha with regard to credit not accepted by him. He used to conduct internal audit on daily basis as before signing he used to check the purchase order register. During his tenure Mr. M.M. Khan the store clerk never reported that purchase order are fake or not in order.
11. PW6 is Mr. M.M. Khan, the then clerk posted in DCOS under PW5 S.A.M. Naqvi. His duties were to receive post pertaining to local purchase from various departments of railway and after receiving the same were handed over to divisional store keeper, who was Sh. S.S. Gupta at the relevant time. Thereafter, the divisional store keeper used to scrutinize the indent and hand it over back to PW6, who used to make the entry of the indent in the demand register and put the entry number on the indent. There used to be two type of indent, one for local purchase and another for rate contract items. The purchase orders were prepared in the office of DCOS in prescribed proforma and were entered in the purchase order register and the serial number of that entry was put on the purchase order, CC No. 111/2019 Page 15 of 43 16 which used to be signed by the DCOS. Out of the six copies of the purchase order, one was sent to Controller of Store Accounts, second to Quality Control office, third to Controller of Stores, Delhi, fourth to the consignee, fifth to the supplier and the last retained in the office of DCOS. If the representative of the supplier was available in the DCOS office, then the copy is given by hand or otherwise sent by post. When PW5 took over the charge, he changed the mode of delivery of supplier's copy i.e. it was sent by registered post, even if the copy was given to the representative of the supplier by hand. The witness identified the three purchase registers Ex. PW6/A (colly). He, thereafter, mentioned that the purchase orders Ex. PW2/1 to PW2/33 are not mentioned in the purchase register Ex. PW6/A and the same can be said to be forged and fake. Purchase orders Ex. PW2/34, PW2/35, PW2/37 to PW2/49, PW2/51, PW2/52, PW2/54 to PW2/65, PW2/68, PW2/70, PW2/71, PW2/91, PW2/104, PW1/105 and PW2/109 do not bear signatures of S.B. Dhusiya, the then DCOS, who preceded Sh. S.M. Naqvi in the office. In the cross examination, he stated that he joined as clerk in office of DCOS on 20.02.1995 under Sh. S.B. Dhusiya. The purchase order registers Ex. PW6/A (colly) were not maintained by him and were maintained by Divisional Store Keeper. The registers Ex. PW6/A (colly) were not printed at railway printing press and were purchased from the market. The purchase order after being prepared by the Divisional Store Keeper, was sent to DCOS for CC No. 111/2019 Page 16 of 43 17 approval. Any order placed on the firms of A3 to A6, if genuine, are mentioned in the purchase order register Ex. PW6/A. He cannot say, if copies of the purchase orders were handed over to A1 and he received the same on behalf of accused firms.
12. PW7 is Sehdev Singh, who was working as helper/Khallassi at the office of Town Supply, Alam Bagh, Northern Railway. He identified his signatures on store inspection memo Ex. PW7/A pertaining to material counted by him in the parcel office. In the cross examination, he stated that he signed on each page at the asking of CBI Inspector and he is not aware about the contents of Ex. PW7/A. He does not know for how long those goods were lying in the parcel office.
13. PW8 is P.L. Kukreti, who witnessed the signatures and handwritings of A1 taken in his presence on Ex. PW3/C8 to PW3/C17. In the cross examination, he denied the suggestions that no specimen handwriting or signatures were taken in his presence.
14. PW9 is Sh. Indrajit, who is the another witness for taking the specimen handwriting and signatures of A1 on documents Ex. PW2/S18 to PW2/S81. He also identified A1 in the court. In the cross examination, he denied the suggestions that no specimen handwriting or signatures were taken in his presence.
15. PW10 is Sh. Sushil Kumar, Inspector, CBI, who had worked with deceased IO late Sh. H.K. Lal, Inspector, CBI. He identified the signatures and handwritings of CC No. 111/2019 Page 17 of 43 18 Late Sh. H. K. Lal as he had worked with him for long and identified his signatures on Ex. PW3/C1 to PW3/C17 and Ex. PW2/S1 to PW2/S86 i.e. the specimen signatures and handwritings of A1 taken by Late Sh. H. K. Lal. In the cross examination, he denied the suggestion that he never worked with Late Sh. H. K. Lal or that he cannot identify his signatures.
16. PW11 is Inder Mohan Johri, who is another witness to taking the specimen handwriting of A1 on Ex. PW3/C1 to PW3/C7. In the cross examination, he stated that prior to that date, he had not met or seen A1 and the IO H.K. Lal told him that the person giving specimen handwriting is Sumant Kumar Mishra.
17. PW12 is one Sabir Ali in whose presence the specimen handwriting of Sumant Kumar Mishra was taken on Ex. PW2/S4 to PW2/S17 and also that of PW5 S.A.M. Naqvi on Ex. PW2/S1 to PW2/S3. In the cross examination, he stated that he did not know A1 before that date. CBI did not call him to the office. PW5 asked him to accompany him to CBI office. He signed some papers at CBI office at the instance of PW5. At that time, CBI Inspector and Mr. Naqvi were present in that room and he does not remember, if any other person was there or not.
18. PW13 is Sh. Om Prakash, the then Superintendent, CBI and identified his signatures on the FIR Ex. PW13/A, which was marked for investigation to Late Sh. H.K. Lal. STATEMENTS OF THE ACCUSED RECORDED U/S 313 CRPC CC No. 111/2019 Page 18 of 43 19
19. Accused Sumant Kumar Mishra in his statement recorded U/s 313 Cr.P.C. stated that he has been falsely implicated in this case and was working as a Labourer and Lay workman. He was made a scapegoat by the railways and he has not committed any illegality or any act as alleged in this charge sheet. He chose not to lead any defence evidence.
20. Accused R.S. Gupta in his statement claimed innocency and stated that he supplied goods to the railways against the supply orders issued by DCOS, Northern Railway, Lucknow as per terms and conditions of DGS&D rate contract and standard manual. DGS&D had finalized a single rate for single item for all the supplier and manufacturers all over India to supply goods to all the Govt. departments of Central and State Govt. He never violated any provision either manual or rate contract at any point of time. He chose to lead defence evidence.
21. Accused Suresh Kukreja stated that he is innocent and stated that he supplied goods to the railways against the supply orders issued by DCOS, Northern Railway, Lucknow as per terms and conditions of DGS&D rate contract and standard manual. DGS&D had finalized a single rate for single item for all the supplier and manufacturers all over India to supply goods to all the Govt. departments of Central and State Govt. He never violated any provision either manual or rate contract at any point of time. During investigation, he was made a witness and never found involved during investigation.
CC No. 111/2019 Page 19 of 43 20No fresh incriminating material came against him in supplementary charge sheet. He chose to lead defence evidence.
22. Accused Shyam Sunder claimed that he is innocent and falsely implicated. He further stated that the process of accepting orders start from the rate contract of DGS&D bidded by registered manufacturers of national small industries corporation or DGS&D. After receipt of the supply orders, the manufacturers get the third party inspection of the material (director quality assurance). Only after this inspection, the material is dispatched and the dispatched documents are sent to consignee by post without the acceptance of which he cannot claim material and after a very long process, payments are released as per rate contract by the Chief Controller of Accounts. Out of the 74 purchase orders in this case, only 6 pertain to him amounting to Rs. 139146.05 paise and the same were duly supplied and payments were released. The supplier had no role in preparation of the purchase order. He chose to lead defence evidence.
23. Accused Jeevan Kumar in his statement claimed innocency and stated that he supplied goods against the supply order issued by DCOS as per terms and conditions and never violated any provision of DGS&D. He had supplied goods several times to the consignees of northern railway against the order of DCOS and had committed no wrong as claimed. He chose to lead defence evidence.
CC No. 111/2019 Page 20 of 43 21DEFENCE EVIDENCE
24. Accused A3 to A6 jointly examined 9 witnesses.
25. DW1 is D.R. Meena, Assistant Divisional Material Manager, DRM Office, Northern Railway, Lucknow but could not produce any record, which was the supply orders issued upto 1997 in favour of the firms of A3 to A6 on the ground that the records have been weeded out.
26. DW2 is Jag Mohan Singh, Assistant Account Officer, Pay & Accounts Office supply, New Delhi and explained the procedure of making payment against DGS&D rates contract order. As per him, his department has to verify the supply from the copy of the supply order sent by the concerned department, inspection note and proof of dispatch of goods and after this complete verification, the payment was made. In the cross examination, he stated that he has not personally dealt regarding the payment of purchase order in the erstwhile office of Chief Controller of Accounts.
27. DW3 is K.K. Kanojia, Sr. Divisional Material Manager, Northern Railway, Lucknow and placed on record the purchase order register for the rate contract item for the year 1997 and 1998 Ex. DW3/A (colly) as well as two purchase orders issued in the name of Aristo Evaporators (firm of A3) Ex. DW3/B and DW3/C. He further stated that all the relevant records, register, purchase order in respect of the accused prior to 1997 deemed to have been seized by CBI and perhaps same are lying with CBI and he came to know from old staff that CBI had seized these CC No. 111/2019 Page 21 of 43 22 records and except of the record produced by him, no other record is available in the office prior to 1997. In the cross examination, he stated that he has never personally dealt with the record brought by him nor can identify the signature and handwriting on these documents.
28. DW4 is Sushil Kumar Arya, Sr. Accounts Officer in the office of PAO, Supply, New Delhi and explained the process of payment in his office. He stated that as and when supply order is issued by the consignee department, the supplier has to submit the bill along with the copy of supply order, original inspection note no. 1 in case of 98% advance payment and inspection note no. 2 and 5 in case of balance payment, DGS&D form no. 135 and proof of dispatch in bill counter of CCA Supply office. After submitting the bills, the bill section process the bill in their supply bill register and the same is submitted to AAO. In case all the documents are genuine, PAO will pass the bill and the accounts section will issue the necessary cheque in favour of supplier. After making the payment, the accounts section dispatch the debit note to the concerned accounts office of the consignee. Inspection of the material before its supply is done by the office of Director of Supply Control at the site of supplier. In the cross examination, he stated that DGS&D has no role in preparation of purchase order/supply order nor has any role in procurement by consignee.
29. DW5 is Akhilesh Kumar, Deputy CEO, GEM-SPU. He explained the procedure of inspection of goods before CC No. 111/2019 Page 22 of 43 23 supply of material. He stated that the supplier will inform the concerned inspectorate about the readiness of the material and the inspecting officer will visit the firm premises along with the RC copy, SO copy and will conduct acceptance test. After receipt of the satisfactory result, the material will be stamped by the inspecting officer as part of acceptance and inspection note will be issued for the dispatch of material to the consignee. The copy of the supply order is received from the buyer and on the basis of this copy, the inspector proceeds for pre- dispatch inspection. 8 copies of inspection note are prepared and are sent to buyer, consignee, firm, CCA and one copy to quality assurance wing of DGS&D. In the cross examination, he stated the DGS&D has no role regarding the requirement of the consignee.
30. DW6 was Nirmal Kumar, Dy. CEO, GEM-SPV but he could not bring the summoned record as after closure of DGS&D, a residual cell under Department of Commerce was created and the record might be with that cell.
31. DW7 is Prem Kumar Singh, a clerk of Bank of India, Ashok Vihar branch and produced on record the statement of bank account of Kukreja Transformer, a firm of A4 Ex. DW7/A. In the cross examination, he stated that the statement of account is not supported by any certificate U/s 2A of the Bankers' Book of Evidence Act.
32. DW8 is Shyam Prakash, DSP, CBI, ACB, New Delhi and stated that he has already placed on record supply orders Ex. DW8/1. He is holding IO and has not collected these CC No. 111/2019 Page 23 of 43 24 exhibited documents. He found these documents in the case file maintained by earlier holding IO. Out of the 25 supply orders, there are two seizure memos in the case file, one showing the seizure of 8 supply orders and another showing 7 supply order and there is no seizure memo of remaining supply orders. He cannot say, if these supply orders are genuine or not as he was not the IO. He was declared hostile by the defence counsel and there is no cross examination by Ld. PP.
33. DW9 is V.P. Verma, Dy. Director, Department of Supply, Ministry of Commerce and could not produce the summoned record pertaining to rate contracts of A5 as the department which issued the rate contracts was closed and the entire record was transferred to Head Quarter, Jeevan Tara Building. No questions asked in cross examination.
ARGUMENTS ON BEHALF OF CBI.
34. It was argued by Ld. PP that present charge sheet initially was filed against two accused i.e. A-1 Sumant Kumar Mishra a private person and deceased public servant A2 Late Sh. S. K. Srivastava in criminal conspiracy of generating 72 fake and forged purchase orders for an amount of Rs. 16,16,93430.53 paise purported to be issued from the office of Divisional Controller of Stores (DCOS), Northern Railway, Lucknow in the name of the firms of A3 to A6. On the basis of said fake and forged purchase orders, A3 to A6 through their firms obtained pecuniary gain. The court took cognizance of the offence CC No. 111/2019 Page 24 of 43 25 and ordered that A3 to A6 who were shown as Prosecution witnesses in the list of witnesses at serial no. 2, 4, 5 and 13 namely R. S. Gupta, Suresh Kukreja, Shyam Sunder Mangal and Jeevan Kumar, be also summoned as accused persons and court also directed further investigation in the matter. The CBI submitted compliance report that there was no fresh material or witness and the court started trial as per material filed with the initial charge sheet. There is sufficient evidence and material against A1 in the evidence of PW5 S. A. M. Naqvi who was working as DCOS and succeeded Sh. S. B. Dhusiya. The prosecution has proved through the statement of PW2 the handwriting expert from CFSL that the handwriting of A1 exists on all the fake orders, whereas the fake orders do not bear the signatures of PW5 or his predecessor in office Sh. S. B. Dhusiya. PW2 gave his detailed opinion with reasons in report Ex.PW2/A. PW5 also denied his signatures on all the fake purchase orders and stated that he never signed the said purchase orders. Similarly, none of these purchase orders bear the supply order number from the office of DCOS. PW6 M. A. Khan who was posted in DCOS office deposed the procedure regarding the issuance of purchase order and stated that none of the purchase order in question bears the signatures of Sh. S. B. Dhusiya nor these purchase orders are mentioned in the Purchase order Register Ex.PW6/A and therefore, all the purchase orders are fake and forged. PW6 also proved apart from other CC No. 111/2019 Page 25 of 43 26 witnesses that purchase orders are forged and fabricated. PW4, who was working as Senior Section Engineer (Electric), Northern Railway, Lucknow, proved that it was the duty of the deceased A2 to maintain store and stores ledgers and to draw stores from DCOS and to draw the material from the station parcel office of non stock items and to maintain the records of railway receipts. He was also supposed to maintain the ledgers relating to stock items and non stock items. PW4 identified the two ledgers which were in the handwriting of deceased A-2 S. K. Srivastava, Ex. PW4/A and ExPW4/B and stated that entries of only two days i.e. 04.06.1997 and 05.06.1997 had been made. S.K. Srivastava had taken the deliveries from the Station parcel office but had not made the entries in the regular registers. PW4 proved that the material which was supplied by A3 to A6 was not intended by the consignee and the same was supplied on the basis of fake and forged orders.
35. Ld. PP further argued against A3 to A6 that they were initially cited as witnesses but were summoned as accused by the court on its own finding enough material against them. It was argued that the material supplied by A3 to A6 against the fake purchase order was never indented by the railway nor the same was required by the railway. There were 21 purchase orders in the name of Aristo Light Industries and 2 purchase orders in the name of Aristo Evaporators which were the two firms of A3. Similarly, A4 was the Proprietor of Kukreja Transformer CC No. 111/2019 Page 26 of 43 27 Manufacturing Company and there were 19 purchase orders in the name of this company. There were 6 purchase orders in the name of Arun Electronics which was the firm of A5 and 24 purchase orders in the name of Gupta Backalite Factory, which was the firm of A6. These four accused examined 09 defence witnesses, but could not rebut the prosecution case. From the record, it is proved that A1 forged purchase orders and caused wrongful gain to himself on the basis of these documents. A1 committed forgery for the purchase of cheating with intention to use the fake purchase orders as genuine and defraud railways knowingly that he has forged and fabricated purchase orders and obtained undue pecuniary advantage. These fake purchase orders were made available by A1 to A3-A6 and A3 to A6 on the basis of these fake purchase orders supplied material and obtained payment from railways. They did not file any cogent document to show that all these purchase orders were received by them through proper channel in regular course of business. They did not produce any books of accounts to show that these purchase orders, supply of articles were accounted by them. The suppliers did not make any efforts to verify the genuineness of the purchase orders. They failed to prove that they acted bonafide on these purchase orders and made supplies strictly as per the procedure. There is sufficient and enough material against them, which proves their criminal conspiracy with A1. The prosecution, therefore, CC No. 111/2019 Page 27 of 43 28 has proved its case beyond reasonable doubts against all the accused and they be convicted for all the charges framed against them.
ARGUMENTS OF DEFENCE
36. On behalf of accused S.K. Mishra (A1), it was argued that no role has been assigned to S.K. Mishra till filing of the charge sheet. Para 3 of the charge sheet only mentioned that A1 entered into a criminal conspiracy with A2 to generate 72 fake and forged purchase orders. It was argued that except of this single line, there is no material on record against A1 as to how he conspired with A2 and others to forge the purchase orders. The present case was registered on sourced information and the only Govt. servant named in the charge Sheet Mr. S.K. Srivastava, the then Store keeper has already expired. There is no purchase order in the name of A1 out of the alleged 72 fake purchase order nor any payment was released in his name. Further, it is not the case of the prosecution that A1 procured any financial benefit or any material out of the alleged 72 fake purchase orders. The prosecution did not place on record original/genuine purchase orders for comparison with the alleged fake orders. It has not even been shown as to whether the stationery used for the purchase orders in question was the original stationery of the railways printed at its press or was fake stationery. It has not been shown by the prosecution as to what happened to the goods/material supplied by A3 to A6 to the railways. Whether it was returned to the supplier or CC No. 111/2019 Page 28 of 43 29 sold out in the market or was used by the railways has not come on record. No record was produced in respect of the genuine purchase orders maintained by the railways. In the absence of the record, even the original purchase orders can be argued as fake purchase orders. Prosecution has failed to prove that the purchase orders were fake or that A1 played any role in forging these purchase orders. It was also argued that the signatures and handwriting of A1 were obtained without permission of the court and the CFSL report giving the opinion that the handwriting of A1 appeared on the fake and forged purchase orders cannot be considered by the court.
37. On behalf of accused A3 to A6, it was jointly and separately argued that A3 to A6 were not in the list of original accused in the charge sheet. Their names were shown in column no. 2 along with name of C.P. Trikha (PW4). As a matter of fact, A3 to A6 were shown as prosecution witnesses but were summoned by the court of its own on 03.01.2005. It was argued that vide this order of summoning, this court also directed further investigation but no fresh material could be found against A3 to A6 in further investigation and the IO filed his status report that there is no fresh material or evidence collected in further investigation. It was argued that prosecution could not prove any of the charges against A3 to A6, who were the authorized suppliers to the railways. PW1 proved the procedure of booking and supply of goods to the consignee. The goods supplied by A3 to A6 CC No. 111/2019 Page 29 of 43 30 to the consignee i.e. the railway department was through railways only, which were duly inspected before supply and no defect was found in the material supplied by A3 to A6 nor A3 to A6 received any extra payment. They received payment from the Pay & Accounts office as per the prescribed procedure after submitting the bills along with the inspection note and the railway receipt and after due verification, the payments of the material supplied was released to A3 to A6. They did not obtain any extra financial or other benefit of the goods supplied. Even the department could not detect that the purchase orders were forged, then how can A3 to A6 could have done so. The goods were supplied as per the scheduled rate once they received the purchase orders. The 98% of the amount was released after submission of bills with inspection note and railway receipt and 2% was released after verification. There was no conspiracy on the part of suppliers A3 to A6 as alleged by the prosecution. The prosecution seized all the records from the offices of the suppliers as well as from the railway department but did not file the same on record. The accused could not produce the said record since it was already seized by the CBI. Prosecution did not examine the IO as he died during trial, which took away the valuable right of the accused to cross examine the IO on the documents seized by him but not produced. The prosecution witnesses admitted in their cross examination that the purchase orders were given to the supplier by hand as well as sent by registered post and the CC No. 111/2019 Page 30 of 43 31 suppliers duly supplied the material. It is not the case of the prosecution that A3 to A6 did not supply the material. The prosecution deliberately withheld the dispatch register, which would have proved that these purchase orders were duly dispatched to the suppliers. The prosecution witnesses have blamed each other for the fake and forged purchase orders. PW4 C.P. Trikha blamed deceased A2 whereas PW5 S.A.M. Naqvi blamed PW4 C.P. Trikha. The change in the pattern of the purchase orders serial number, if any, was not to the knowledge of suppliers and as such, they could not have detected alleged forgery in the purchase orders. Accused through their defence witnesses explained the process of supply and the payment. It was proved that once the supplier receives purchase order in due course, he asks for the inspection at his premises and after taking the inspection note, dispatch the goods through railway and obtains the railway receipt and attaches these two documents with his bill to the Pay & Accounts office, who already had the copy of the bill and also, verifies the inspection note and the railway receipt at its own end and then releases the payment. The same procedure was followed by A3 to A6 in respect of these alleged fake orders and there was no conspiracy or illegality at their end, which otherwise has not been proved by the prosecution and therefore, all the four suppliers i.e.A3 to A6 are entitled to be acquitted.
38. Ld. defence counsels have relied upon the following judgments:
CC No. 111/2019 Page 31 of 43 32i) Babu Vs. State of Kerela, (2010) 9 SCC 189
ii) John Pandya Vs. State of Tamil Nadu (2010) 14 SCC 129
iii) Sharad Birdhichand Sarda Vs. St. of Maharashtra AIR 1984 SC 1622 CONCLUSION
39. As far as accused A3 to A6 are concerned, they were admittedly the authorized suppliers to railways. They were not charge sheeted by the prosecution and their names were shown in Column No. 2 of the charge sheet along with that of Sh. C.P. Trikha, (PW4) the then Sr. Electrical Foreman, Alam Bagh, Lucknow. Names of the accused A3 to A6 were mentioned in the list of witnesses at Sl. No. 2, 4, 5 and 10. My Ld. Predecessor, however, vide order dated 03.01.2005 while taking cognizance summoned them since these four accused were the suppliers of the goods against alleged forged and fake purchase orders and also received payments on the basis of these orders. Vide the same order, further investigation was ordered to find out, if any other public servant was also involved in the conspiracy. The CBI carried out further investigation and filed time to time status report and lastly, filed a report on 10.09.2008 stating that there is no material against any other public servant. A perusal of this status report shows that further investigation was conducted in the matter and it was found that the bills in questioned were cleared and paid by the Pay & Accounts office, Chief Controller of Accounts, Department of CC No. 111/2019 Page 32 of 43 33 Supply, New Delhi. The supply orders in question were received in the receipt section of the Pay & Accounts office and entered in the supply order dairy and found in order. The suppliers (A3 to A6) submitted their bills at the bill counter along with the inspection note and railway receipt and the bills were entered in the diary and sent to concerned section. In order to process the bill, inspection note of the quality control wing and copy of the railway receipt i.e. the proof of dispatch of consignment are necessary, which were available in all these bills. The railway receipts in question were genuine and the random inspection of the item dispatched to the consignee was also conducted and the consignment had been actually delivered to the railways. This status report clearly shows that even as per the case of prosecution, there was no involvement of the suppliers. The prosecution document itself shows that the inspection of the items dispatched by the suppliers was conducted for which inspection notes were generated and submitted with the bills. Similarly, the railway receipt, which is the proof of the dispatch by the supplier was also found genuine. The goods were supplied by the suppliers and were received by the consignee and the proof was attached with the bills and the payments were released. No undue financial benefit or any other advantage or gain was received by A3 to A6. They supplied the goods as per purchase orders, which were duly inspected before supply and were dispatched and received by the consignee. The prosecution could not CC No. 111/2019 Page 33 of 43 34 prove any conspiracy of A3 to A6 nor there is any material on record, which points out towards any such conspiracy.
40. There is more evidence on record to substantiate the finding that prosecution has failed to prove any offence against A3 to A6 for which they were charge sheeted. PW1, who was the Head Parcel clerk at Northern Railway, admitted that railway receipts mark PW1/A (colly) and PW1/B (colly) were issued by the authorized agent of northern railway against the goods supplied by the firms of A3 to A6 as per record and after receiving the material, he used to check the railway receipt (RR) number on the parcel and this RR number was mentioned in the dispatch register. This shows that goods were actually supplied by A3 to A6. Further, PW4 C.P. Trikha stated in his cross examination that the proforma of the purchase orders used in his department at that point of time was the same as in the purchase orders Ex. PW2/1 to PW2/109. Railway receipts and the inspection notes were directly received in his office from the vendor as he was the consignee of the goods. The purchase orders Ex. PW2/1 to PW2/109 were issued by DCOS office and sent to the concerned departments. His deposition creates doubt in the prosecution story that purchase orders Ex. PW2/1 to PW2/109 were fake or forged. Importantly DW 8 also produced some supply orders seized by deceased IO, Ex. DW 8/1 colly. These were not placed on record by prosecution for undisclosed reasons. Similarly, PW5 CC No. 111/2019 Page 34 of 43 35 S.A.M. Naqvi though in his examination in chief stated that on examinations of the registers of purchase orders for the year 1996-97, they were found to be fake and also, denied his signatures on the purchase orders but in the cross examination, admitted that we could not detect the purchase orders pertaining to this case to be fake during regular check up of record and register maintained in the office. If PW5 himself, who was working as Director, Stores, Ministry of Railways, could not detect the purchase orders to be fake, then how it is expected from A3 to A6 to detect the same to be fake and forged, more so when they made the supply after due inspection and also got their bills cleared in due course. PW5 in his cross examination, stated that during his tenure copy of the purchase orders were not used to be handed over to the supplier in person and he does not know the procedure followed by his predecessor in this regard. The same, however, is contrary to the deposition of PW6 M.M. Khan, who was working as Clerk in DCOS office. PW6 in his examination in chief, stated that if the representative of the firm was present in DCOS office, the copy of the purchase order was given to him and if no such representative was present, then the copy was sent by post. He further clarified that when PW5 took charge, then the copy was delivered to the firm by registered post even in case the representative of the firm receives a copy in person. This means that the practice of giving the copy of the purchase order to the supplier by hand continued CC No. 111/2019 Page 35 of 43 36 even during the tenure of PW5 though he introduced the compulsory sending through registered post. PW5 deliberately concealed this in his cross examination but since PW6 stated the same in his examination in chief itself, the same gives benefit to the accused that the copy of the purchase order was supplied to the supplier/agent even by hand. PW5 further admitted that the inspector of Quality Control visits the premises of the supplier for inspection of goods on the basis of purchase orders. It means that one copy of this purchase order is also sent to Department of Quality Control, who inspects and even that department could not detect that the purchase orders were allegedly fake. As a matter of fact, 6 copies of purchase orders are prepared as stated by PW5 and were sent to Chief Controller of Accounts, Director Quality Assurance, Consignee, Railway Divisional Accounts office, to the supplier and one for office use. None of these five Govt. office excluding the supplier could detect any forgery in the purchase orders. In these circumstances, it cannot be presumed in favour of prosecution that A3 to A6 had any means to ascertain that the purchase orders were fake or that they conspired with other accused to supply goods to the railway on these purchase orders. Further, PW5 mentioned about the change of the pattern in numbering the purchase orders w.e.f. 01.01.1997 but also admitted that said instructions were intra-departmental and were not conveyed to the suppliers. In these facts, it is difficult to hold that CC No. 111/2019 Page 36 of 43 37 suppliers were aware about the change of pattern in numbering the purchase orders or that they conspired with other accused in suppling material on those purchase orders. PW5 stated in his cross examination that he used to conduct internal audit on daily basis before signing the purchase order as he used to check the purchase order number in the purchase order register. During his tenure, the indents were not having any deficiencies and he did not raise any objection and entered the same in the demand register. The concerned clerk Mr. M.M. Khan, PW6 never reported that any purchase order issued from his office were fake or were not in order. From the testimony of all the prosecution witnesses, it is proved that 6 copies of purchase order were prepared after receiving the request from the consignee and these copies were sent to the Quality Control, Pay & Accounts office, Consignee, Supplier, Controller of Stores and one office copy. None of these departments could make out that the purchase orders were fake as alleged. Even the Accounts office or the Quality Control Inspector could not ascertain that the orders are forged and fabricated and in these circumstances, how the suppliers i.e. A3 to A6 could found and ascertain that the purchase orders are fake and fabricated. The prosecution could not prove any conspiracy between A3 to A6 and other accused in forging the purchase orders. The signatures and the handwritings of A3 to A6 were never obtained for comparison. As a matter of fact, they were not even CC No. 111/2019 Page 37 of 43 38 named as accused in the charge sheet but rather were cited as witnesses. Admittedly, A3 to A6 supplied goods as per purchase orders and obtained the payments after complying with all the formalities like inspection and railway receipts. There is no material against them on record proved by the prosecution. I find no force in the submissions of Ld. PP that it was for the accused to produce their books of accounts to show that they entered the transactions of these purchase orders in their books to prove their innocence. As per criminal jurisprudence, it is for the prosecution to prove its case beyond reasonable doubts, which the prosecution failed to prove. On the other hand, accused examined 9 witnesses to prove their innocence. Out of these 9 witnesses, DW2, who was from the Pay & Accounts office explained the procedure of making payments against DGS&D rate contracts and stated that after submission of bills, our department verify the copy of the supply order from the concerned department, verify inspection note and proof of dispatch of goods and after complete verification, the payment is made. Similarly, DW4 also stated that how a payment is made against the bill submitted by the supplier. Along with the bill, the supplier submits copy of supply order, inspection note, proof of dispatch and after entire verification, the bill is passed and cheque is issued in favour of the supplier. These witnesses proved that payments were received by A3 to A6 after complying with the procedure. DW3 also produced the purchase CC No. 111/2019 Page 38 of 43 39 order register of 1997-98, which shows that purchase orders were issued in the name of the firm of A3. The other relevant record of the other accused as per him was seized by CBI and perhaps was lying with CBI. IO unfortunately died during trial and could not be examined. In facts, accused were handicapped in proving that all the relevant record was seized by CBI. The prosecution as such has failed to prove any charge against A3 to A6 and they are acquitted for all the charges.
41. Coming to the role of A1 Sumant Kumar Mishra, as per prosecution case, A1 forged these purchase orders as his handwriting appeared on these purchase orders. PW2, the handwriting expert, CFSL, gave his opinion that the writing of A1 appear on 71 purchase orders. I have perused these purchase orders and compared them with the purchase orders Ex. DW8/1 (colly) and there appears no difference between these two set of purchase orders. Ex.PW2/2, PW2/3, PW2/4, PW2/71, PW2/72, PW2/73, PW2/76, PW2/77, PW2/80, PW2/83, PW2/84, PW2/87, PW2/88, PW2/89 and PW2/90 are same as few purchase orders of Ex. DW 8/1 (colly). Why these purchase orders were not placed on record or sent to FSL remains unexplained.
42. As per the prosecution case, the forged and fake purchase orders bear the handwriting of A1 at "S/O No..." on the purchase orders. The genuine purchase orders also bear the said serial number in handwriting only. It cannot be said that the genuine purchase orders do not bear this CC No. 111/2019 Page 39 of 43 40 "S/O no." in hand. So there is no difference in real and alleged fake purchase order as far as mentioning of S/O no. is concerned. Writing the serial no. on purchase orders appear to be a regular practice. Copies of all purchase orders having this handwritten serial no. were sent to different offices and were found to be in order. It shows that writing serial no. in hand was the normal course. None of the Govt. department ever raised any objection to it. Coming to handwriting of A1 of these purchase orders. The handwriting and the signatures of A1 were obtained in the presence of prosecution witnesses PW8, PW9, PW11 and PW12. However, these signatures and handwriting were obtained without permission of the court and same has no evidentiary value in view of judgment of our own High court.
43. Full bench of Hon'ble Delhi High Court in case titled as Sapan Haldar and Anr. Vs. State in Crl. Appeal No. 804 of 2001 decided on 25.05.2012 held that specimen signatures cannot be obtained without permission of Magistrate/Court and in this regard, the Hon'ble Delhi High Court relied upon the judgment of Hon'ble Supreme Court given in Sukhvinder Singh and Others Vs. State of Punjab, (1994) 5 SCC 152. It was held that the FSL report has to be excluded from the arena of admissible evidence for the reason, no orders were obtained from the competent court to obtain the specimen writing of the accused.
44. In the present case, signatures of A1 were obtained CC No. 111/2019 Page 40 of 43 41 without permission of the court and therefore, no evidentiary value can be given to it. Otherwise also, even if it is considered for the sake of arguments that A1 put the serial number of purchase orders on the alleged forged purchase orders, the same does not prove that he forged these documents as the prosecution could not prove that these purchase orders were signed by A1. From the statement of PW3 the other handwriting expert and the documents seized by IO which were examined by PW 3 i.e. the affidavit of A1 regarding working for A 6 and a letter written by him to A 4 shows that he was only working as a liasoning officer for the other private accused persons and used to collect their purchase orders in hand from the office of DCOS. Witness PW4 stated in his cross examination that he can recognize A1 by face as he had seen him at DRM office, Electrical branch, Northern Railway Lucknow and later on came to know his name as S.K. Mishra. This statement proves that A1 used to sit at DRM office for obtaining purchase orders for and on behalf of the other accused and merely because his handwriting appears on purchase orders at "S/no." does not constitute any offence. Admittedly he did not signed these purchase orders nor it is the prosecution case. The documents of the prosecution EX.PW 3/A and EX.PW 3/B only prove that A1 was working as agent of A3 to A 6 and does not strengthen prosecution case. There exists many doubts in prosecution case as proved against A1. Benefit of doubt always goes to accused.
CC No. 111/2019 Page 41 of 43 42Prosecution has failed to prove charges against A1 beyond reasonable doubt.
45. The prosecution has failed to bring any evidence against any accused to show that they were involved in any criminal conspiracy as alleged at any stage of the trial. Unfortunately, the I.O of the case as well as the Govt. servant accused S.K. Srivastava in the present case died during the trial. The prosecution case was certainly hampered because of death of the IO. The prosecution failed to establish any conspiracy between deceased accused S.K. Srivastava and the remaining five accused, who were the private persons. Prosecution witnesses like PW5 and PW6 admitted that they could not detect that the purchase orders were forged or fabricated during their normal routine nor any other Govt. office where the five copies of the purchase orders were sent could detect it. A3 to A6 admittedly were the authorized suppliers to the Northern Railways and admittedly, supplied the goods on these alleged fake orders as per rules and guidelines. Their bills were cleared by the Pay & Accounts office after completing all the formalities. A3 to A6, who were initially prosecution witnesses, were summoned by the Court and no material was placed on record against them during the further investigation ordered by the Court. The prosecution could not prove that A1 conspired with deceased A2 or any other accused in forging the purchase orders. The prosecution failed to prove any of the offence against any of the accused or any conspiracy amongst CC No. 111/2019 Page 42 of 43 43 them. All the five accused are acquitted. Their bail bonds and surety bonds are discharged. Documents, if any, of the accused or the sureties on record be released forthwith. Accused are directed to furnish fresh surety bonds U/s 437A CrPC.
46. File be consigned to Record Room.
Digitally signed AMIT by AMIT KUMAR
ANNOUNCED IN THE OPEN COURT
TODAY i.e. ON 28.10.2021
KUMAR Date: 2021.10.29
14:33:34 +0530
(AMIT KUMAR)
SPECIAL JUDGE, PC ACT, CBI-04,
ROUSE AVENUE COURTS,
NEW DELHI
CC No. 111/2019 Page 43 of 43