Delhi District Court
Special Judge-Iv vs Central Bureau Of Investigation (Cbi) on 26 October, 2015
IN THE COURT OF SANJAY GARG-I:
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CA No.05/2015 & CA No. 07/2015
ID No. 02401R0153342015
&
ID No. 02401R0173362015
1 Daya Shankar Singhal ... Appellant
Versus
Central Bureau of Investigation (CBI) ..Respondent
2. (i) Janender Kumar Jain
S/o. Late Shri Shugan Chand Jain
R/o. D-178, Vivek Vihar, Delhi-92.
(ii) Arun Kumar Jain
S/o. Late Shri Shugan Chand Jain
R/o. D-178, Vivek Vihar, Delhi-92. ... Appellants
Versus
Central Bureau of Investigation (CBI) ... Respondent
Date of Institution: 23.03.2015 & 01.04.2015.
Date of Arguments: 03.10.2015.
Date of Judgment: 17.10.2015.
CC No. 05/2015 & 07/2015 Page 1 of 26
ORDER
1 Both these Appeals arising out of the same judgment are decided together with a common order.
2 Appellant/accused in first Appeal (mentioned as A-2 in this order on the basis of the Charge Sheet) stands sentenced to S.I. of one year with fine of Rs.5000/- for the offence U/s. 120-B r/w 420 IPC in default simple imprisonment for 30 days. Simple Imprisonment for one year and fine of Rs.5000/- for the offence U/s. 120 B r/w. 468 IPC in default simple imprisonment of 30 days and simple imprisonment for one year for the offence U/s. 120 B r/w. 471 IPC. Simple imprisonment for 2 ½ years for the offence U/s. 468 IPC and fine of Rs.5000/- in default simple imprisonment of 30 days.
3 In second Appeal, both Appellants/accused persons (mentioned as A-4 & A-5 in this order on the basis of the Charge Sheet) were sentenced as follows: -
S.I. of one year with fine of Rs.5000/- for the offence U/s. 120- B r/w 420 IPC in default simple imprisonment for 30 days. Simple Imprisonment for one year and fine of Rs.5000/- for the offence U/s. 120 B r/w. 468 IPC in default simple imprisonment of 30 days and simple imprisonment for one year for the offence U/s. 120 B r/w. 471 IPC. Simple imprisonment for 2 ½ years for the offence U/s. 468 IPC and fine of Rs.5000/- in default simple imprisonment of 30 days.
4 The brief factual matrix of the case is that all the three Appellants with Shri T.K. Jain (A-1, since dead), Rajiv Jain (A-3, discharged) entered into criminal conspiracy to cheat the Office of Joint CC No. 05/2015 & 07/2015 Page 2 of 26 Controller of Imports & Exports (CLA), New Delhi by preparing forged documents in order to dishonestly and fraudulently obtain Cash Compensation Support and REP Licenses. Under the conspiracy, Shri T.K. Jain submitted an application to Joint Chief Controller of Imports & Exports dated 15.12.1981 for dishonestly and fraudulently obtaining cash compensatory support & REP Licenses misrepresenting that M/s. Tagur Enterprises, 32 Vir Nagar, Jain Colony, G.T. Road, Delhi had exported handicrafts worth Rs.4,71,505/- for the quarter ending July to September, 1981. He also submitted three fake bank Certificates of Export, three Bank attested Invoices and three Bills forged/false documents. He signed on the said application claiming himself to be as Export Manager Anil Kumar of M/s. Tagur Enterprises dishonestly concealing his real identity. He by dishonestly misrepresentation and use of forged document obtained Rs.47,150/- vide Cheque dated 09.02.1982 and License No. P/K/0314891 dated 08.01.1982 for Rs.1,88,600/-.Shri T.K. Jain submitted another application dated 06.01.1982 with Joint Chief Controller of Import & Export. In the same manner, claiming that he had exported handicrafts worth Rs.3,69,000/- for the quarter of October to December, 1981. He also filed two Bank Certificates, attested Invoices and two Shipping Bills, all forged in support of this fraudulent claim. He signed on the application and its enclosures as Anil Kumar, Export Manager, concealing his real identity. By dishonestly and fraudulently, he obtained Rs.36,900/- vide cheque dated 24.03.1982 and REP Licenses P/K/0318735 dated 03.04.1982 for Rs.1,47,600/-. 5 Shri T.K. Jain sold REP Licenses dated 08.01.1982 to Shri Sirigopal Gupta, Manager, M/s Ankur Trading Corporation through A-2. He also sold the second REP License dated 03.04.1982 to Vijay Gupta, CC No. 05/2015 & 07/2015 Page 3 of 26 Proprietor of M/s. Gupta Agents, New Delhi through A-2. 6 Shri Rajiv Kumar Jain who is son of Shri T.K. Jain had taken delivery of various dispatches received from the Office of Joint Chief Controller of Imports & Exports. A-2 opened Account No. 922 in the Indian Overseas Bank, Roop Nagar Branch, Delhi under fictitious name of Anil Kumar, Proprietor of M/s. Tugore Enterprises on the introduction of A-4 & A-5, where they claimed them to be Manager & Proprietor of M/s. Jain Enterprises. A-2 presented both these cheques in the said account and realised the proceeds in due course. A-2 sold REP License dated 08.01.1982 to Shri Sirigopal Gupta, Manager of M/s. Ankur Trading Corporation at a premium of Rs.20,746.25. A-2 sold second REP License dated 03.04.1982 at a premium of Rs.17,712/- to Shri Vijay Gupta of M/s. Gupta Agents. The payment against both these premiums were received by Pay Order & Cheque. A-2 deposited both cheques & Pay Order in the account of M/s. Tugore Enterprises in Indian Overseas Bank, Roop Nagar Branch, Delhi and withdrew the money from this account. 7 A-2 also appeared before Shri S.L. Chauhan, Dy. Chief Controller of Imports & Exports posing himself as Anil Kumar, Export Manager of M/s. Tugore Enterprises and handed over one letter purported to have been signed by Shri Y.P.S. Gill, Partner of M/s. Tugore Enterprises and also submitted two forged Shipping bills. He also filled the Interview Slip showing him as Anil Kumar and signed as Y.P.S. Gill on it. This Interview was sought by A-2 in order to submit re-stamped Shipping Bills as desired by Office of Joint Controller of Imports & Exports while processing the application of alleged false export. 8 A-4 & A-5 are real brothers running the firm in the name & style of M/s. Jain Enterprises, 95, T.T. Road, Dharampura, Ghaziabad.
CC No. 05/2015 & 07/2015 Page 4 of 26They knew A-2 since long in the course of their business dealings. They introduced A-2 in the Indian Overseas Bank and helped in the opening of fictitious account knowing-fully well that A-2 has signed on the fictitious name of Anil Kumar. A-4 also filled the body of withdrawal cheque for Rs. 47,150/-, which was signed by A-2 as Anil Kumar. A-2 withdrew Rs. 1,22,350 from the account of M/s. Tagur Enterprises opened by him in the fictitious name of Anil Kumar in the Indian Overseas Bank, Roop Nagar, Delhi vide six withdrawal cheques. All the three accused persons alongwith A-1 & A-3 were charged for the offence U/s. 120 B IPC r/w. 420, 467, 468, & 471 IPC and also substantive Offence U/s. 420, 467, 468 & 471 IPC.
9 In support of its case, Prosecution has examined 44 witnesses comprising of various Officials from the Office of Joint Chief Controller of Import & Export, various Bank Officials, Government Examiner of questioned documents (GEQD Expert) and Officials of CBI who had investigated this case.
10 In their statements recorded U/s. 313 Cr.P.C., all the Appellants have denied the evidence against them. Appellants have examined DW-1 Mrs. R.K. Vij, Handwriting Expert in support of their defence.
11 Heard Shri Manoj Kumar, Ld. Counsel for A-4 & A-5, Shri Y. Kahol, Ld. Counsel for A-2 and Shri Anil Tanwar, ld. PP for CBI. Perused the Trial Court record and various grounds of appeal raised in both these Appeals.
12 Sh. Y. Kahol, Ld. counsel for A-2 has contended that Ld. trial court mainly based its judgment on the report/opinion Ex. PW 32/98 of Handwriting Expert PW-32 but there is nothing on record to corroborate CC No. 05/2015 & 07/2015 Page 5 of 26 the version of this expert. It has been stated that expert evidence of Handwriting Expert is an opinion evidence hardly taking place of substantive evidence and there is no corroboration to it. Assailing the report of Handwriting Expert, the Ld. counsel has submitted that the report Ex. PW 32/98 is on the basis of specimen writing of accused, expert has not compared the questioned writing/signature with the admitted writing of accused despite the fact that IO has seized documents containing admitted writing of accused. It has been further contended that PW-30 Bidi Chand and PW-20 Bishan Sharma, who are witnesses to specimen signatures are not supporting the version of CBI and creating suspicion to the story of the prosecution. It has been further contended that ld. trial court has failed to appreciate that as per PW 22, A-2 was known to him, then why PW-22 did not ask the A-2 to introduce the said account. It is further submitted that there is no evidence on record to establish that this accused has withdrawn various sums of money credited in the account of M/s Tagur Enterprises. Even no witness of the bank was examined who could have identified the accused as the same person, who had withdrawn the amount in his presence. Ld. counsel has vehemently urged that none of the prosecution witness has identified the accused as Anil Kumar before the ld. trial court. It is stated that PW-33 has not uttered a word against the accused to the effect that he was involved in the aforesaid sale of REP licence directly or incorrectly along with accused T.K. Jain (A-1). The Ld. counsel has relied upon the following judgments:-
(I) Magan Bihari Lal Vs. State of Punjab [(1977) 2 SCC 210],
(ii) S. Gopal Reddy Vs. State of A.P. [1996 SCC (Crl) 792], CC No. 05/2015 & 07/2015 Page 6 of 26
(iii) Rakesh Kumar Vs. State [109(2004) DLT 130], &
(iv) S. P. Bhatnagar & anr. Vs. State of Maharshtra [AIR 1979 SC 826].
13 The Ld. Counsel for A-4 & A-5 has submitted that the Ld. Trial Court has failed to appreciate from the statements of various witnesses examined by Prosecution that it is apparent Anil Kumar was not fictitious person and he was actually in existence. It has been stated that in fact this Anil Kumar had introduced the account of these Appellants in some other Bank, due to this reason, these Appellants have introduced this account of Anil Kumar on behalf of M/s. Tagur Enterprises. It has been argued that from the Statement of Bank Official Shri S.S. Ram Dass (PW-28), Shri Mata Deen Meena (PW-19), Shri Pawan Kumar Goel (PW-22), Shri Jaswant Singh (PW-21), Shri Mangat Rai Jindal recorded by the Investigating Officer, it stands established that Anil Kumar was known to the Bank Officials, he regularly used to visit the Bank, had taken Cheque Book and had withdrawn the amount from his account. It is stated that PW-13 Shri B.S. Jain, who had opened the alleged fictitious account has stated that Anil Kumar had appeared in the Bank and opened the Account after completing requisite formalities. It has been further submitted that as per Prosecution case, A-2 was also having his account in the same Bank, various Bank Officials were knowing him and it is not believable that A-2 was able to open an account in the same Bank representing himself as Anil Kumar, Proprietor of M/s. Tagur Enterprises.
14 On the other hand, Shri Anil Tanwar, Ld. PP has submitted that the plea taken by A-4 & A-5 that Anil Kumar was an actual existing person is an after thought as no such plea was taken during the Trial. It is CC No. 05/2015 & 07/2015 Page 7 of 26 stated that Bank Officials, specially PW-13 Shri B.S. Jain who had opened A/c. No. 922 of M/s. Tagur Enterprises have no where stated that they were knowing Anil Kumar, rather they took A-2 as Anil Kumar and opened the Account on the introduction done by A-4 & A-5. It is stated that the opinion given by PW-32 (GEQD) is clear and specific that the A/c. No. 922 with Indian Overseas Bank at Roop Nagar Branch was opened by A-2 on the fictitious name 'Anil Kumar' and body of one Cheque of Rs.47,000/- withdrawn by A-2 is also found in the handwriting of A-4, which further proves the conspiracy between them. It has been stated that conspiracy are hatched in privacy and it is next to possible to find evidence of it. It is urged that from the evidence on record it stands established that A-4 and A-5 were known to A-2 as account opening form of M/s Jain Enterprises, a firm owned by A-4 and A-5 was introduced by M/s Micky Exports through its proprietor A-2. It was stated that signatures and handwriting of all the three appellants on various documents vide which fake account of M/s Tagur Enterprises having account no. 922 with Indian Overseas Bank was opened, the amounts withdrawn from this account establish beyond doubt that all the three accused under an agreement committed all these offences for which they have been held guilty by the Ld. trial court.
CCS(Cash compensatory Support) & REP Licences 15 As per prosecution case, A-1 (since dead) with A-3 (since discharged) and other 3 appellants entered into a criminal conspiracy, prepared forged documents to obtain CCS and REP from the office of Joint Controller of Import & Export, misrepresenting him as Anil Kumar CC No. 05/2015 & 07/2015 Page 8 of 26 as export manager of Tagur Enterprises. Out of the 44 witnesses examined by the prosecution, majority of the witnesses examined are with the purpose to prove that various documents, allegedly submitted by A-1 with office of Joint Controller of Import & Export to obtain CCS &REP licence, were fake. Both the applications were processed by the department and CCS &REP licences issued accordingly. All the three appellants have not disputed the issuance of 2 CCS & REP licences by the office of Joint Controller of Import & Export on the basis of forged documents.
16 Ld. counsels on behalf of the appellants have disputed involvement of the accused persons in any conspiracy with either A-1 or any one else for obtaining CCS & REP licences. Conspiracy angle as alleged by the prosecution against the accused persons will be discussed in subsequent paras. Since issuance of CCS & REP on the basis of forged documents by office of Joint Controller of Import & Export, New Delhi is not disputed by the appellant, the evidence led by prosecution in this regard is not discussed in this order.
Opening of account no. 922 on the name of M/s Tagur Enterprises.
17 As per PW-13 Sh. B.S. Jain, he was posted as probationary officer at Roop Nagar branch of Indian Overseas Bank in the year 1992. He had dealt with account opening form Ex. PW 13/A pertaining to account no. 922 of M/s Tagur Enterprises. As per him this account was originally introduced by Sh. J. P. Jain & Co. and subsequently introduced by Sh. J.K. Jain, (A-4). A-4 was the mandate holder of M/s Jain Enterprises and he (PW-13) asked A-4 to produce the letter from proprietor to introduce the account. According, he produced the letter Ex.
CC No. 05/2015 & 07/2015 Page 9 of 26PW 13/B. During his cross-examination, PW-13 stated that account opening form was filled in his presence by Sh. Anil Kumar, proprietor of M/s Tagur Enterprises and now he cannot recognize the said person. He cannot say that if he is one of the accused person.
18 PW-19 Shri M.D. Meena is another important witness in this case, who was working as officer in Indian Overseas Bank, Roop Nagar branch from 1981 to 1985. He identified signatures of accountant S. S. Ram Dass on accountant opening form Ex. PW 19/1 of M/s Jain Enterprises which was introduced by M/s Micky Exports. Ex. PW 19/2 is the signature verification card of M/s Jain Enterprises. He deposed that Ex. PW 19/3 is a letter issued by the party and Mark -A is mandate letter dated 6.1.1982 whereby A-5 has authorised A-4. He further deposed that account opening form Ex. PW 13/A of M/s Tagur Enterprises was introduced by A-5.
19 PW 22 Sh. Pawan Kumar Goel has deposed that from 1979 to 1984. He remained posted at Roop Nagar branch of Indian Overseas Bank on the post of cashier-cum-godown keeper. The account opening form Ex. PW 13/A bears his initials. He had done his initials as Daya Shankar (A-2) had approached him and got the introduction done of M/s Tagur Enterprises showing proprietor Anil Kumar. A-2 was known to him earlier. One Sardar Jaswant Singh, who was a customer, happened to be present in the branch on that day and he had requested him to introduce the said account, who requested him to do initial on the account opening form, on that basis Jaswant Singh introduced the said account. A-2 was having an account in the said branch itself. During his cross- examination, he admitted that as per rules of the bank, the person introduced to open new bank account has to sign before the concerned CC No. 05/2015 & 07/2015 Page 10 of 26 officer of the bank but in good faith otherwise can be done. PW-21 Jaswant Singh has supported the statement of PW 22. He stated that he cancelled his introduction of the said account as the person who was introduced, wanted to withdraw entire amount same day. He got suspicious and cancelled his signatures.
20 From the statement of PW-13, PW-19, PW-21 and PW-22 , it stands established that account opening form Ex. PW 13/A of M/s Tagur Enterprises was submitted by A-2 with the bank for opening an account, the same was firstly introduced by PW-21 but since he cancelled his introduction, it was subsequently introduced by M/s. J.D. Jain & Company and then by A-4.
Seizure of documents during investigation, taking specimen signature and handwriting of the accused persons and the report of GEQD.
21 One of the main contention raised by ld. counsel on behalf of accused persons is that specimen signature of the accused persons were taken by IO in arbitrary manner but as per law same were required to be taken before the court of Metropolitan Magistrate, accordingly, same are not admissible to be considered in evidence. It has been submitted that IO had various documents containing admitted signatures of the accused persons and these documents could have been sent by IO for comparison with the questioned documents. As per IO PW-36 during the course of investigation, specimen signature and handwriting of accused persons were taken. PW-20 Bishan Sharma has deposed that specimen signature and handwriting of A-2 and A-4 were taken in his presence. During his cross-examination he has stated that he does not CC No. 05/2015 & 07/2015 Page 11 of 26 remember whether specimen signature of A-2 and A-5 were already taken by CBI before he reached their office. He has only identified his signature on the documents Ex. PW 20/1 to PW 20/17. PW 23 Amarjeet Singh has proved specimen handwriting sheets Ex. PW 20/1 to PW 20/10 vide which, as per him, specimen handwriting of A-2 was taken. Similarly, PW-28 Sri Ram has proved sheets Ex. PW 28/1 to PW 28/3 containing specimen handwriting and signature of various accused persons. PW-30 Bidi Chand has proved sheets Ex. PW 30/1 to PW 30/33 containing signatures and handwriting of A-2. PW-38 O. P. Divedi has proved sheets Ex. PW 32/58 to PW 32/65, containing specimen handwriting and signatures of A-2. PW 40 Vinod Kumar has proved sheets Ex. PW 28/1 to PW 28/13 containing specimen handwriting and signatures of A-4 and PW-41 Bhuwan Chand Joshi has proved sheets Ex. PW 32/32 to PW 32/41 containing specimen signatures and handwriting of accused persons.
22 From the evidence discussed above, it is clear that specimen handwriting and signature of the accused persons were taken by IO in his office and not in the court. There is another important question which needs to be addressed is if investigating officer was competent to take handwriting and specimen signatures of accused persons and handwriting report based on these samples, can be said to be of any value.
23 To support his contentions, Ld. counsel for A-2 has heavily relied upon observations made by the court in Rakesh Kumar (supra), Hon'ble High Court in para 17 held as under:-
"17. Moreover, the alleged specimen signatures/ handwriting/thumb/ finger print impression of appellant Chandra Shekhar and Sri Chand were CC No. 05/2015 & 07/2015 Page 12 of 26 obtained during investigation by the IO without prior permission from the Court. Facts in the case of Sukhvinder Singh & ors. V. State of _Punjab, II (1994) CCR 531(SC)=(1994) 5 SCC 152, were that specimen handwriting of the appellant were taken under the directions of the Executive Magistrate during the investigation when no inquiry or trial was pending in his Court. Accused person did not raise any objection thereto yet Hon'ble Supreme Court observed that such specimen writing of the accused persons could not be made use of during the trial and the report of the handwriting expert is thus rendered of no consequence at all and could not be used against the accused to connect him with crime.
In the present case the specimen signatures/writing/thumb impressions were obtained during the investigation without any permission from the Court. Therefore, the case in hand stands on a weaker footing than that of Sukhvinder Singh (supra). Therefore, in view of the law laid down by the Supreme Court in the case of Sukhvinder Singh (supra) it follows that the specimen writing/thumb impression/finger print impression of the appellant Sri Chand, Chandra Shekhar could not be made use of during the trial. The report of the handwriting expert/Finger Print Bureau is thus rendered of no consequence at all and cannot be used to connect the appellants with crime."
24 The other landmark judgment of Full Bench of Hon'ble High Court of Delhi is in Sapan Haldar & anr. Vs. State [191 (2012) DLT 225(FB)]. Relevant para of this judgment reads as follows:-
" 31. We answer the reference as follows:-
(I) Handwriting and signature are not measurement as defined under Clause (a) of Section 2 of the Identification of Prisoners Act, 1920. Therefore, Section 4 & 5 of the Identification of Prisoners Act, 1920 will not apply to a handwriting sample or a CC No. 05/2015 & 07/2015 Page 13 of 26 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 Criminal Procedure, 1973, even a Magistrate could not direct a person accused to give specimen signatures or hand writing 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, 1972, only the Court concerned can direct a person appearing before it to submit samples of his handwriting and/or signature for purposes of comparison."
25 The issue regarding handwriting and signatures specimen was recently dealt with by our Hon'ble High Court in Rekha Sharma & ors Vs. CBI [2015 (218) DLT 1]. The court has observed that investigating officer in a criminal case is empowered under Section 2(h) Cr.P.C. to collect evidence and undertake various steps in that endeavor. The Supreme Court in Selvi V. State of Karnataka [(2010) 7 SCC 263] has endorsed this view and held that term "investigation" includes steps which are not exhaustively and expressly enumerated. Even otherwise, experience suggests that every crime requires its own tailor made investigation which may be peculiar to the circumstances of the case. It would not be prudent and neither possible to exhaustively catalogue such steps taken during investigation. Thus, absence of a specific provision enabling a particular step under investigation does no imply that the investigation agency is disabled from taking that step under its power/duty to conduct investigation. The relevant para 448 and 449 are CC No. 05/2015 & 07/2015 Page 14 of 26 as follows:-
"448. The decision in Sapan Haldar (supra) again has considered the question whether handwriting and signature specimens are obtainable under Section 4 & 5 of the Identification of Prisoners Act, 1920 and the Court observed that since both handwriting and signature of a person are not a mark of identification, the same cannot be 'measurement' as defined under Section 2(a) of the Identification of Prisoners Act. However, the very next line which declares that an investigation officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence is in teeth with the view adopted by the Supreme court in Navjot Sandhu (supra)* [(2005) 11 SCC 600] and Dara Singh (supra)* [(2011) 2 SCC 490].
449. In view of the aforesaid discussion, I am of the opinion that the report of the expert and analysis of handwriting and signature specimens of the accused persons cannot be rendered inadmissible on the ground that it was obtained in violation of prescribed procure."
26 In view of the aforesaid discussion, the contention raised by Ld. counsels for the accused persons that handwriting and signature specimen cannot be considered, is not sustainable. 27 Ex. PW 32/98 is the GEQD (Government Examiner of Questioned documents). The relevant portion of this report is as follows:-
"6. The person who wrote the blue enclosed writings stamped and marked S1 to S24 and S190 to S205 also wrote the red enclosed writings similarly stamped and marked Q1 to Q 54, Q 68, Q76, S209 and Q210.CC No. 05/2015 & 07/2015 Page 15 of 26
7. The person who wrote the blue enclosed writings stamped and marked S25 to S82, S149 to S158 and S178 to S189 also wrote the red enclosed writings similarly stamped and marked Q85, S89, S91 to Q95, Q97 to S111, Q112/1, Q180 and Q206.
8. The persons who wrote the blue enclosed writings and signatures stamped and marked S96 to S109 also wrote the red enclosed writings and signatures similarly stamped and marked Q96 and Q203.
9. The person who wrote the blue enclosed signatures stamped and marked S159 to S164 also wrote the red enclosed signature similarly stamped and marked Q179.
28 One of the main contention raised by Ld. PP for respondent- CBI is that it was A-2 who got the cheque book issued from Indian Overseas Bank. Statement of PW-10 is relevant in this regard. As per PW-10 Manjit Singh was posted in Roop Nagar branch of Indian Overseas Bank from 9.11.1976 to 21.7.1987. After seeing the cheque book issue register of his branch, he deposed that he had issued cheque book containing cheque number 746251 to 75 vide entry Ex. PW 9/1 in the cheque book issue register. As per GEQD report Ex. PW 38/98, Ex. PW 9/1 is given Q112/1.
29 PW-7 Shri B.C. Tulli was posted as Assistant Public Relation Officer from February, 1982 to May, 1982 in the Office of Joint Chief Controller of Imports & Exports. He deposed that as and when any person used to come with some problem and wanted to meet some Officer, he used to get interview of that person with the concerned Officer. That person who wanted to meet Officer was required to send a printed slip giving details of his case. As per him, on the basis of CC No. 05/2015 & 07/2015 Page 16 of 26 intimation slip Ex.PW-7/1, he got interview of Mr. Ail Kumar, Export Manager of M/s. Tugore Enterprises fixed with Mr. Pillai, Deputy Chief Controller of Imports & Exports. He has categorically stated that he cannot identify him who had come to seek this interview. The contents of Ex.PW-7/1 and the signature on it are Q-206 & Q-207. The same were sent for comparison with sample handwriting of A-2.
30 As mentioned in para 7 of Ex. PW 32/98, S-25 to S-82, S-49 to S-158 and S-178 to S-189 are the various handwriting samples of A-2. Q-85 was seized by IO vide Memo Ex. PW32/1. Q-85 account opening form of M/s Tagur Enterprises with Indian Overseas Bank is proved by PW 13 as Ex. PW 13/A. Q-87 to Q-89 is the specimen signature card of account no. 922 with Indian Overseas Bank proved by PW-10 from Indian Overseas Bank as Ex. PW 10/4. Q-91 is current account pay in slip vide which Rs.500/- was deposited on 22.2.1983 in the account of M/s Tagur Enterprises. This document is proved by PW-9 Vijay Kumar Handa as Ex. PW 9/6. Q-93 is pay in slip dated 22.2.1982 of Indian Overseas Bank vide which Rs. 47,150/- was deposited in the account of M/s Tagur enterprises. Q-94 is the signature of the person depositing this amount vide Ex. PW 9/7. Q-97 was seized by IO vide Ex. PW 32/2. Q-102 is seized by IO vide Memo Ex. PW 33/3. Q.103- Q-104 were seized by IO vide Memo Ex. PW 33/4. Q-105 to Q-108 were seized vide Memo Ex. PW 33/5. Q-109 to Q-111 were seized by IO vide Memo Ex. PW 33/6. Q-98 to Q-99 were seized by IO vide Memo Ex. PW 33/7 from PW 19 Sh. M. B. Meena, who was working as officer in Indian Overseas Bank. All these questioned documents are various deposit slips vide which different amounts were deposited by cheque and on different dates different amounts were withdrawn from this account. Q-180 is the CC No. 05/2015 & 07/2015 Page 17 of 26 signature on the letter head of Ms Tagur Enterprises of Y. P. S. Gill addressed to Joint Chief Controller of Imports & Exports seized vide Memo Ex. PW 32/31.
31 Para 8 of report Ex. PW 32/98 is pertaining to A-4. S-96 to S-109 are the specimen signature and handwriting of A-4. Q-96 is the questioned writing on Cheque Ex. PW 32/2. Q-96 comprises all the contents of the cheque except signature on it (which is Q-95). Q-203 is the introduction on the account opening form Ex. PW 13/A. 32 Para 9 of report Ex. PW 32/98 pertains to comparison of the specimen writings of A-5 with the questioned documents. S-159 to 164 are specimen writing of A-5. Q-179 is the signature done by A. K. Jain (A-5) on a letter dated 3.3.1982 as proprietor of Jain Enterprises. This letter is on the letter head of the Firm, addressed to Manager of Indian Overseas Bank, Roop Nagar, Delhi for introduction of M/s Tagur Enterprises, 32, Veer Nagar, Jain Colony and Anil Kumar as its proprietor for opening current account.
33 From the GEQD report Ex. PW 32/98, it stands established that A-5 has signed letter Ex. PW 13/B given in the bank as introducer of M/s Tagur Enterprises for opening its account.
34 IO PW 36 and GEQD PW 32 were cross-examined at length but nothing has come on record to discredit their testimonies. I find no reason to disbelieve statement of PW-36 qua various seizure of documents made by him and report of GEQD Ex. PW 32/98.
35 The other contention raised by Ld. counsels for accused persons is that report of handwriting expert cannot be sole basis of conviction and the same requires corroboration. To support his CC No. 05/2015 & 07/2015 Page 18 of 26 submission, Ld. counsel for A-2 has relied upon the observations made by Hon'ble Supreme Court in Magan Bihari Lal (supra) wherein court has observed that expert opinion must always be received with caution and it is unsafe to base conviction solely on the expert opinion without substantive corroboration. In S. Gopal Reddy (supra) the court has observed that expert evidence is a weak type of evidence which cannot be safely relied upon without independent reliable corroboration.
Conspiracy 36 One of the main contention raised by Ld. PP for respondent- CBI is that all the accused persons were acting in conspiracy with each other and it is always difficult to get direct evidence in such cases and inference has to be drawn from the circumstantial evidence or other evidence which has come on record.
37 The criminal conspiracy as defined under Section 120-B IPC is always hatched in privacy. The gist of what constitute this offence was summed up pithily by the Supreme Court in Runu Ghosh Vs. P. Rama Rao [2011 Legal Eagle(Del) 1757] in para 132 & 133 as follows:-
"132. As regards criminal conspiracy, that is one, under Section 120-B, IPC. The gist of what constitutes the offence was summed up pithily by the Supreme Court, in E.G. Barsay Vs. State of Bombay AIR 1961 SC 1762 (an enunciation that was affirmed and applied in several alter decisions, such as Ajay Aggarwal v Union of India 1993 (3) SCC 609, Yashpal Mittal v. State of Punjab 1977(4) SCC 540, State of Maharastra v. Som Nath Thapa 1996(4) SCC 659, Firozuddin Basheeruddin v. State of Kerala, (2001) 7 SCC 596).
"The gist of the offence is an agreement to break the law. The parties to such an agreement will be CC No. 05/2015 & 07/2015 Page 19 of 26 guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable."
133. There is no doubt that evidence of criminal conspiracy is hard to come by. When such agreements are made, people are not expected to commit themselves in writing, nor are all conspirators necessarily aware of the entire plan, which may be known only to a handful. However, for the Court to draw a conclusion that there was criminal intent, the meeting of minds, there has to be strong circumstantial evidence pointing to the conspiracy......."
38 In State (N.C.T. of Delhi Vs. Navjot Sandhu [2005 AIR SC 3820], Hon'ble Supreme Court has held as under:-
"Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its object have to be inferred from the circumstances and the conduct of the accused (Per Wadhwa, J. in Nalini's case (supra) at page
516). The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and "the circumstances proved must form CC No. 05/2015 & 07/2015 Page 20 of 26 a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible". G. N. Ray, J. in Tanibeert Pankaj Kumar [1997(7) SCC 156], observed that this Court should not allow suspicion to take the place of legal proof.
As pointed out by Fazal Ali, J. in V. C. Shukla v. State [1980(2) SCC 665], "in most cases it will be difficult to get direct evidence on the agreement, but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence." In this context the observations in the case Noor Mohammad Yusuf Mobim v. State of Maharshtra (AIR 1971 SC 885) are worth noting:
"... in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances, and antecedent and subsequent conduct, among other factors, constitute relevant material."
Sale of REP License 39 One of the allegations of the Prosecution is that T.K. Jain (A-1, since deceased) had sold REP Licenses to M/s. Ankur Trading Corporation and M/s. Gupta Agents through A- 2. To prove this, Prosecution has examined PW-33, PW-35, PW-37 & PW-39.
40 PW-33 Shri Vijay Kumar Gupta was Proprietor of M/s. Gupta Agents in the year 1992 and was doing business in sales & purchase of REP License. He has identified his signature on Seizure Memo Ex.PW-33/A vide which he had handed over two documents to CBI. One document is Ex.PW-33/B i.e. Debit Note dated 16.04.1982 issued by M/s.
CC No. 05/2015 & 07/2015 Page 21 of 26Tugore Enterprises through Proprietor of the Firm Anil Kumar. He had paid a Cheque for the premium @ 12% for transfer of REP License. PW-35 Shri C.B. Gupta was running M/s. Khandelwal Enterprises in the year 1982. He was doing the business of sale & purchase of REP License. He had purchased License No. PK-0318735 dated 03.04.1982 for Rs.147600/- and the payment was made by him through cheque. As per him, thereafter, this License was resold alongwith other License to M/s. Ashok Metal Company, Bombay. PW-37 Shri Subhash Aggarwal was working as Accountant in M/s. Ashok Metal Company in the year 1983. The Company had purchased the License No. PK-0318735 from M/s. Khandelwal Enterprises. PW-39 Shri Radhey Shyam Poddar was one of the Trustee of M/s. Mudita Chemcial Corporation in the year 1982-83. As per him, he had purchased License No. 314891 dated 08.01.1982 for Rs.1,88,602/-issued in favour of M/s. Tugore Enterprises, Delhi from M/s. Ankur Trading Corporation for Rs.21689.25 paise. He does not know M/s. Tugore Enterprises. They were doing business of sale & purchase of Licenses. M/s. Ankur Trading Corpoation had handed over to them the Transfer letter alongwith this License. This License was purchased by them @ premium of 11.5%. They had sold this License to M/s. Meera Investment and had raised a Debit Note Ex.PW-39/B. 41 These REP Licenses got issued from the Office of Joint Chief Controller of Imports & Exports, on the basis of forged documents, in favour of M/s. Tugore Enterprises, were sold & resold in the market, as is apparent from the statements of PW-33, PW-35, PW-37 & PW-39. But none of these witnesses have deposed anything regarding identification of either A-2 as Anil Kumar or any other accused.
42 It is relevant to mention here that it is not disputed case of the CC No. 05/2015 & 07/2015 Page 22 of 26 Prosecution that CCS and Cheques received on sale of REP Licenses were deposited in the account of M/s. Tagur Enterprises in Indian Overseas Bank, Roop Nagar. From there, the various amounts were withdrawn.
43 Inter-alia, one of the contention raised by ld. PP, CBI is that M/s. Miki Exports is the Firm of A-2 and as per evidence on record, account of M/s. Jain Enterprises was introduced by M/s. Miki Exports. It has been stated that all these three accused persons alongwith T.K. Jain (A-1, since deceased) were known to each other and under agreement, they fabricated the various documents seeking CCS and REP Licenses from Joint Chief Controller of Imports & Exports.
44 As already discussed, the case of the Prosecution is that Shri T.K. Jain (A-1, since deceased) had submitted application to Joint Chief Controller of Imports & Exports for dishonestly and fardulently obtaining CCS and REP Licenses misrepresenting that M/s. Tagur Enterprises had exported handicrafts worth Rs.4,71,505/- for the quarter ending July to September, 1981, submitting fake Bank Certificates of Exports, Invoices & forged Bills and documents. The allegation is that A-1 had signed on the said application representing himself to be Export Manager Anil Kumar of M/s. Tagur Enterprises. These documents were sent for handwriting comparison with the specimen writings of A-1.The Report of GEQD Ex.PW-32/98 is positive as mentioned in Para No. 6 of the Report. A-1 being dead, accordingly, the same is not discussed here.
45 Section 10 of Indian Evidence Act provides that anything said or done or written by anyone of such person in conspiracy with each other, in reference to their common intention is a relevant fact as against each of the person believed to be so conspiring, as well for the purpose CC No. 05/2015 & 07/2015 Page 23 of 26 of proving the existence of the conspiracy as for the purpose of showing that any such person was party to it.
Conclusion 46 The law on conspiracy is settled, as discussed above that the same can be proved by circumstantial evidence and its object have to be inferred from the circumstances and the conduct of the accused. The only evidence which has come against A-4 is that he has done introduction of account opening Form Ex.PW-13/A of M/s. Tagur Enterprises and contents of the Cheque Ex.PW-32/2, vide which some money was withdrawn from account of M/s. Tagur Enterprises are in his hand (except the signature), which is in the handwriting of A-2 (as per GEQD Report Ex.PW-32/98). Beyond this, Prosecution has failed to bring any evidence on record against A-4. Even regarding the introduction of the Account Opening Form Ex.PW-13/A, as discussed above, initially as per PW-22 he had asked PW-21 Shri Jaswant Singh to introduce this account and since he cancelled his introduction getting suspicious, the same was got done from A-4. There is no evidence on record if all the accused persons had come together in the Indian Overseas Bank to get account No. 922 on the name of M/s. Tagur Enterprises opened. Moreover, Prosecution has failed to lead any evidence on record that M/s. Miki Exports which had introduced the Account of M/s. Jain Enterprises in Indian Overseas Bank, Roop Nagar Branch, the Firm of A-4 & A-5, was owned by A-2. Accordingly, A-4 deserves benefit of doubt to be given. Therefore, the Trial Court wrongly convicted him in this case. His conviction is thereby set aside.
47 The only evidence, which has come against A-5 is that he had signed Ex.PW-13/B given in the Bank as Introducer of M/s. Tagur CC No. 05/2015 & 07/2015 Page 24 of 26 Enterprises for opening its account. Beyond this evidence, there is no other evidence proved on record by Prosecution. With the same analogy as of A-4, he also deserves benefit of doubt and accordingly, his conviction is set aside.
48 In addition to the GEQD Report Ex.PW-32/98 (para No. 7), there is statement of PW-22 Shri Pawan Kumar Goel that A-2 had approached him and had requested him to get the introduction of the account of M/s. Tagur Enterprises done. PW-22 has also specifically stated that A-2 was known to him earlier as he was having an account in the same branch. As per GEQD Report Ex.PW-32/98, majority of the documents vide which various cheques were deposited with Pay-in- Slips and money was withdrawn from A/c. No. 922 of M/s. Tagur Enterprises are in the handwriting of A-2. Hence, there is sufficient evidence that A-2 in conspiracy with T.K. Jain (A-1, since deceased) and others, if any, committed these offences with which he has been charged.
49 Regarding the quantum of sentence awarded by Ld. Trial Court on A-2, in view of this Court, keeping in view the age, medical history, the other antecedents of accused and the prolonged trial running for 33 years, he deserves leniency in awarding sentence. A-2 has not undergone any term of imprisonment till date in this case. In considered view of this Court, the interest of justice will be served if A-2 is sentenced to suffer cumulative sentence of six months for all the offences for which he is convicted. As per the receipt filed on record, A-2 has already paid fine of Rs.15,000/- in compliance of the impugned order on quantum of sentence. Accordingly, the period of imprisonment, which A-2 has to undergo is reduced to six months.
50 A-4 & A-5 are directed to furnish Personal Bond/Surety in sum CC No. 05/2015 & 07/2015 Page 25 of 26 of Rs.20,000/- each for a period of six months as required U/s. 437 A Cr.P.C.
51 A-2 is directed to surrender before the Ld. Trial Court on 02.11.2015 to undergo the reduced sentence awarded by this Court. Copy of this order be provided to A-2.
52 TCR alongwith copy of this order be sent back to the Trial Court.
53 Both Appeal Files be consigned to Record Room.
Announced in the open court (SANJAY GARG-I)
on 26th of Oct. 2015 SPECIAL JUDGE-IV, CBI (PC ACT)
TIS HAZARI COURTS, DELHI
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