Cbi vs . G.C.Gupta & Ors. on 16 October, 2014

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Delhi District Court

Cbi vs . G.C.Gupta & Ors. on 16 October, 2014

Judgement in the matter of:-
CC No.: 31 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.

: IN THE COURT OF :
: SH.KANWAL JEET ARORA :
SPECIAL JUDGE, CBI (P.C.ACT), DWARKA COURTS,
NEW DELHI.

In the matter of :
CBI vs. G.C.GUPTA & ORS.
C.C.NO.: 31/2011
FIR NO. : RC7 (E)/2001EOWI/DLI
dated 29.06.2001

Under section : 120B r/w 420, 467,
468 & 471 IPC and 13 (2) read with
13 (1) (d) of the PC Act, 1988

In the matter of:
CENTRAL BUREAU OF
INVESTIGATIONS (C.B.I)

V e r s u s

(i) Girish Chandra Gupta,
S/o. Shri. Mahesh Chandra,
R/o: W86/C33, Saiduljaib Extn.II,
New Delhi

(ii) Vijay Pal Pandhi,
S/o. Late Shri. Moti Ram Pandhi,
R/o: Tower No. 10, Flat No. 203,
Bollywood Heights, Peer Muchhalla,
Jeerakpur.

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CBI Vs. G.C.Gupta & Ors.
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(iii) Munish Yadav,
S/o. S/o. Shri. K.S.Yadav,
R/o:C1/F, Delhi Police Apartments,
Mayur Vihar, PhaseI, Delhi91.

(iv) Arvind Kumar Sharma,
S/o. Late Sh. Sambhu Nath Sharma,
R/o: Flat No. 17, Opposite Dusshera Park,
Jawala Heri, Paschim Vihar,
New Delhi110063.

(v) Kanwar Vijay Juneja,
S/o. Late Sh. Veer Bhan,
R/o: A26, Saraswati Garden,
New Delhi110015.

(v) Prafula Chandra Mohan,
S/o. Late Sh. B.L.Sharma,
R/o: A138, Ist Floor, Shakarpur Vikas Marg,
Delhi110092.

(vii) Rajpal Yadav,
S/o: Sh.Net Ram Yadav,
R/o.: WZ23, Jwala Hedi Market,
Paschim Vihar, New Delhi.
{Proceedings qua him were abated
vide orders dated 25.09.2009)
... ACCUSED PERSONS.

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Judgement in the matter of:-
CC No.: 31 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.

Date of Institution : 28.06.2003.
Date on which the case was : 10.10.2011.
received on transfer in this court
Date of reserving judgement : 10.09.2014.
Date of pronouncement : 16.10.2014.

Memo of Appearance:

(i) Sh.Harish Kumar Gupta, Ld.Special Public Prosecutor for
CBI.

(ii)Sh.Ramesh Gupta, Ld.Senior Advocate along with
Sh.C.L.Gupta, Advocate, Ld. Counsels for accused G.C.Gupta.

(iii) Sh.Sunil Chaudhary, Advocate, Ld.Counsel for accused Vijay
Pal Pandhi.

(iv)Sh.Ravinder Chadha, Advocate, Ld.Counsel for accused
Munish Yadav.

(v) Sh.R.K.Kohli, Advocate, Ld.Counsel for accused Arvind Kumar
Sharma and accused K.V.Juneja.

(vi) Accused P.C.Mohan in person.

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CC No.: 31 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.

: J U D G E M E N T :

1. Insurance is an equitable transfer of the "risk

of a loss", from one entity to another in exchange for a

payment, called premium. An insurer is a company selling the

insurance; whereas insured or policy holder, is the person or

entity buying the insurance policy. Marine Insurance covers

the loss to the cargo, transported through any mode of

transport, held between the point of origin and final

destination. The transaction involves the insured assuming a

guaranteed and known relatively small loss, in the form of

premium to the insurer, in exchange for the insurer's promise

to compensate the insured, in case of any financial loss.

2. Last few decades have seen a marked

increase in occurrences of international economic frauds

and the Marine Insurance, has not by any means been excluded

from these trends. In fact Marine Insurance has emerged as

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one of the primary targets of maritime frauds. Fashionable

method of defrauding the underwriter Insurance Company, is

the presentation of fraudulent documentation to

substantiate a fraudulent claim.

3. One such marine frauds with National

Insurance Company, came to the fore, vide an "Internal

Vigilance Enquiry" held by the officers of the company

culminating in initiation of present proceedings.

4. The precursor of the present case is a written

complaint dated 06.02.2001 of Sh.K.Mahapatra, Chief

Vigilance Officer, National Insurance Company Ltd., Head

Office, Calcutta. On the basis of this complaint, FIR bearing

Number RC7(E)/2001EOW1/DLI on 29.06.2001 was

registered and investigated.

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CBI Vs. G.C.Gupta & Ors.
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5. On conclusion of the investigations, CBI had

filed the present charge sheet against accused Girish Chandra

Gupta, Vijay Pal Pandhi, Munish Yadav, Arvind Kumar

Sharma & Kunwar Vijay Juneja and supplementary charge

sheet against accused Raj Pal Yadav and Prafula Chandra

Mohan ; on the allegations that Girish Chandra Gupta, the

then Assistant Manager, DOXXIII, National Insurance

Company during the year 199798, had entered into a criminal

conspiracy with Vijay Pal Pandhi, Assistant Manager, Regional

Office, National Insurance Company, Munish Yadav,

Proprietor of M/s M.S.Computer & Communication, Arvind

Kumar Sharma, Proprietor of M/s Pooja International, Kunwar

Vijay Juneja, Raj Pal Yadav & P.C.Mohan the object of which

was to obtain Marine Insurance claim amounting to Rs.

2,32,000/ in favour of M/s M.S.Computer & Communication, on

the basis of false and forged documents, knowing or having

reasons to believe them to be forged ones and thus to cheat

National Insurance Company. It is alleged that Girish

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Chandra Gupta and Vijay Pal Pandhi, being public servants

criminally misconducted themselves and as members of the

conspiracy, had facilitated accused Munish Yadav, Arvind

Kumar Sharma & Kunwar Vijay Juneja, Raj Pal Yadav and

Prafula Chandra Mohan to submit false and bogus documents

in support of the claim thereby inducing National Insurance

Company Ltd. to release payment of Rs.2,32,000/ in favour of

M/s M.S.Computer & Communications owned by Munish

Yadav and thus obtaining pecuniary advantage for him and

corresponding wrongful loss to NIC.

6. Before proceeding further, to delve upon the

matter, it is pertinent to have facts interse as emanating from

the charge sheet, which led to registration of FIR and filing of

the charge sheet by CBI in court, for trial of the accused

persons. The same are as under:

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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.

F A C T U A L M A T R I X:

7. It is alleged that Munish Yadav as Proprietor

of M/s M.S.Computer & Communication, 397, Masjid Mor,

NDSEII, New Delhi, vide letter dated 04.12.1997 had

requested for issuance of marine policy with respect to a

consignment of computer hardwares to be sent to his firm by

and from M/s Cosmic Computers and Peripherals, 11 Lal

Banglore, Green Land, Hyderabad, vide goods receipt no. 1052

dated 10.12.1997 of M/s K.R.Golden Transport Company.

8. It is alleged that the goods of consignment

were Magnetic Optical Drive (MOD), CD Writer, Hard Disk

Drive (HDD), Floppy Disk Drive (FDD), Mother Board, etc.

Invoice value of which was approximately Rs.7,22,000/ packed

in 12 wooden boxes.

9. It is alleged that premium of Rs.3588/ was

deposited on the basis of which policy number

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360900/4500149/97 dated 04.12.1997 was issued by NIC, DO

XXIII.

10. It is alleged that Munish Yadav vide letter

dated 15.01.1998 reported non delivery of consignment on

which accused Vijay Pal Pandhi appointed M/s Railway Claim

Settlers for tracing, who submitted their report on 16.03.1998.

11. It is alleged that claim papers were processed

by Sh.Madan Lal Meena and was recommended by Smt. Gopa

Sahu, Administrative Officer for Rs.2,32,000/ which were

approved by accused G.C.Gupta as Assistant Manager.

12. It is alleged that on the basis of said approval,

cheque no. 229138 for Rs.2,32,000/ dated 26.05.1998 was

issued of which accused Vijay Pal Pandhi was one of the

signatory and the said cheque was deposited by Munish Yadav

in his current account no. 4007 with Punjab National Bank,

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Rohtak Road Branch.

13. It is alleged that alongwith the claim, number

of documents were submitted with NIC under signatures of

accused Raj Pal Yadav (since expired) who signed as Manager

for M/s M.S.Computer and Communication being employee of

accused Munish Yadav, the same being on policy, intimation

letter dated 15.01.1998, claim bill dated 10.02.1998, claim form

dated 10.02.1998, letter dated 02.01.1998 addressed to M/s

Cosmic Computers and Peripherals, discharge voucher of Rs.

2,32,000/ dated 26.05.1998 and request letter dated 04.12.1997

for issuance of insurance policy, etc. It is alleged that on the

copy of G.R submitted with the claim, accused Munish Yadav

signed as Proprietor of M/s M.S. Computer & Communication.

14. It is alleged that on the letter of M/s M.S.

Computer & Communication dated 15.01.1998 signed by

accused Raj Pal Yadav as Manager, accused V.P.Pandhi had

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appointed M/s Railway Claim Settlers as tracers and relevant

papers were also handed over to them for tracing. It is further

alleged that accused P.C.Mohan is the Proprietor of M/s

Railway Claim Settlers and a report dated 16.03.1998 was filed

alongwith supporting documents.

15. It is further alleged that although accused

P.C.Mohan has denied his signatures on the report dated

16.03.1998, however, he in lieu of the report had submitted a

bill for tracing / investigations with NIC amounting to Rs.

10,630/ which includes travelling expenses of Rs. 4,630/. It is

alleged that accused P.C.Mohan has himself written the words

"Confidential" and "Without Prejudice" in his own hand on this

report dated 16.03.1998.

16. It is alleged that M/s Pooja International, a

proprietorship concern of accused Arvind Kumar Sharma was

appointed as Recovery Agents to get the recovery affected on

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behalf of Insurance Company from the transporter. It is

further alleged that necessary documents for getting the

recovery affected were collected by accused K.V.Juneja,

employee of M/s Pooja International and he signed an

acknowledgment receipt for the same dated 29.05.1998.

17. It is further alleged that accused Arvind

Kumar Sharma had deposited Rs.16,000/ with NIC vide

cheque dated 10.09.1998 as recovery affected by him from the

transporter. It is alleged that this cheque of recovery came

from the current account of Arvind Kumar Sharma himself

whereas it should have come from the transporter. It is alleged

that M/s Pooja International had claimed the Recovery Fee

from NIC which was paid vide cheque dated 17.09.1998

amounting to Rs.2,043/.

18. It is alleged that the documents submitted in

support of the claim i.e. Tracer / Investigation report, GR of the

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transporter as well as invoice / challan were bogus and

forged as neither the consignor nor transporter were in

existence at the given addresses.

19. It is alleged that all the accused persons thus

in furtherance of the conspiracy entered into amongst

themselves had cheated National Insurance Company by

getting marine claim for Rs.2,32,000/ on the basis of forged

and fabricated documents.

20. It is further alleged that officers of National

Insurance Company viz. G.C.Gupta and V.P.Pandhi being

Public servants had criminally misconducted themselves by

abusing their official position as public servants, in order to

cause pecuniary advantage to accused Munish Yadav, Arvind

Kumar Sharma & Kunwar Vijay Juneja, Raj Pal Yadav and

Prafula Chandra Mohan and corresponding wrongful loss to

NIC.

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21. It is alleged that all the accused persons have

committed offenses punishable under section 120B read with

section 420, 467, 468 & 471 IPC and 13 (2) read with 13 (1)

(d) of P.C.Act and also the substantive offences.

22. It is alleged that on conclusion of

investigations, the report was submitted to the competent

authority for necessary sanction for prosecution against the

public servants, which was granted.

23. Whereafter, the present charge sheet was filed

in court against all the accused persons for proceeding against

them, as per law.

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Dated : 16.10.2014.

C O G N I Z A N C E O F O F F E N C E:

24. Pursuant to filing of charge sheet and after

perusal of the same in the light of supporting documents,

Ld.Predecessor of this court took cognizance of offence and

accused persons were accordingly summoned.

25. In compliance to the Provisions of Section 207

Cr.P.C, the accused persons were supplied with the copies of

charge sheet and documents relied upon by the prosecution.

C H A R G E:

26. Ld. Predecessor of this Court after hearing

Ld.Defence Counsels for all the accused persons passed orders

on the point of charge on 26.05.2006 forming an opinion that

prima facie case for offences punishable under section 120 B

IPC read with section 420 / 467 / 468 /471 IPC and section

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13 (2) read with section 13 (1) (d) of Prevention of Corruption

Act have been culled out against all the accused persons.

27. As per said order Ld. Predecessor of this Court

had opined that substantive charges for offences under section

13(2) read with section 13(1)(d) of Prevention of Corruption

Act, was made out against Girish Chandra Gupta accused no.1

and Vijay Pal Pandhi accused no. 2, the public servants,

substantive charges for offences under section 420/471 IPC

read with 467 / 468 IPC against Munish Yadav accused no. 3,

substantive charge for offence under section 420 IPC against

Arvind Kumar Sharma accused no. 4, Kunwar Vijay Juneja

accused no. 5 and Rajpal Yadav accused no. 6 and substantive

charge for offence under section 468 IPC against Prafula

Chandra Mohan accused no. 7, on the basis of material on

record.

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28. Requisite charge for offence under section

120B IPC read with section 420 /467 /468 /471 IPC and under

section 13 (2) read with section 13 (1) (d) of Prevention of

Corruption Act, 1988 was framed against all the accused

persons on 30.05.2006.

29. Separate charges for substantive offence under

section 13(2) read with 13 (1) (d) of Prevention of

Corruption Act was framed against Girish Chandra Gupta i.e.

accused no.1 and Vijay Pal Pandhi accused no. 2, the public

servants.

30. Separate charge for substantive offence under

section 420 IPC and offence under section 471 read with 467 /

468 IPC was framed against Munish Yadav i.e. accused no.3.

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31. Separate charge for substantive offence under

section 420 IPC was framed against Arvind Kumar Sharma i.e.

accused no.4.

32. Separate charge for substantive offence under

section 420 IPC was framed against Kunwar Vijay Juneja i.e.

accused no.5.

33. Separate charge for substantive offence under

section 420 IPC was framed against Raj Pal Yadav i.e. accused

no.6

34. Separate charge for substantive offence under

section 468 IPC was framed against P.C.Mohan i.e. accused

no.7.

35. The requisite charges framed against all the

accused persons were read over to them, to which they pleaded

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not guilty and all of them claimed trial.

A B A T E M E N T O F P R O C E E D I N G S Q U A

A C C U S E D R A J P A L Y A D A V :

36. During the pendency of proceedings, accused

Rajpal Yadav had expired. After getting the verification report

regarding his death, the proceedings qua him were abated vide

orders dated 25.09.2009.

37. In view thereof, I hereby proceed further

to dispose off the present case qua the other accused

persons.

P R O S E C U T I O N E V I D E N C E :

38. Prosecution was thereafter called upon to

substantiate their case by examining their witnesses, listed in

the list of witnesses, filed along with the charge sheet. Availing

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the given opportunities, CBI had examined 35 witnesses.

39. The witnesses so examined by the prosecution

to substantiate its case can be broadly categorized in Six

Categories :

40. First Category consists of witnesses from

National Insurance Company Ltd. (NIC). All these are

material witnesses examined by the prosecution, who have

deposed about the initiation of inquiry by the officers of

Vigilance Department of NIC, submission of inquiry report.

The witnesses of this category have further deposed that on the

basis of Vigilance report, complaint was lodged with CBI. These

witnesses have further deposed regarding the procedure as per

which a marine policy is issued and the mode and manner in

which claim if any lodged, is processed, recommended and

approved. This category comprises of :

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(i) PW2 Sh.K.Mahapatra, Chief Vigilance Officer, NIC, the

complainant ;

(ii) PW3 Sh.A.K.Seth, Dy. Manager, Assistant Admin. Officer,

NIC ;

(iii) PW4 Sh.Amrit Lal Gambhir, Assistant Admin. Officer,

NIC ;

(iv) PW5 Sh.V.K.Bajaj, Assistant Admin. Officer, NIC ;

(v) PW7 Sh.A.K.Tiwari, Dy. Manager, AO Vigilance, NIC ;

(vi) PW8 Sh.Madan Lal Meena, Assistant, NIC ;

(vii) PW9 Sh.Dharampal Rana, AO, NIC ;

(viii) PW11 Sh.N.K.Dutta, Regional Manager, NIC ;

(ix) PW12 Smt.Gopa Sahu, Assistant Admin. Officer, NIC ;

(x) PW13 Smt.Pooja Soni, Assistant, NIC ;

(xi) PW14 Sh.R.C.Sood, Assistant, NIC ;

(xii) PW16 Smt.Neelam Kataria, Assistant, NIC ;

(xiii) PW17 Sh.Virender Singh Negi, Assistant, NIC.

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41. The witnesses of the first category have

further deposed regarding issuance of cheque to the

concerned parties onces the claim is fully approved. The mode

and manner of appointment of 'tracer' as well as 'recovery

agents'. The witnesses of this category had further deposed

about submission of the records relevant to the present case,

to the investigating officer during the course of investigations.

42. Second Category of witnesses examined by

the prosecution are also important ones as they are from the

banks where National Insurance Company and accused

Munish Yadav, Proprietor of M/s Computers & Communication

were having their accounts. This category further includes the

witnesses from the bankers of accused Raj Pal Yadav who as

Proprietor of M/s Mark Computers was having a current

account with Oriental Bank of Commerce which was introduced

by coaccused Arvind Kumar Sharma. Further the witnesses

from the bankers of accused Arvind Kumar Sharma, Proprietor

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of M/s Pooja International and of accused P.C.Mohan,

Proprietor of M/s Railway Claim Settlers are also included in

this category. This category comprises of :

(i) PW6 Sh.Vinod Kumar Chopra, Manager, Punjab

National Bank.

(ii) PW10 Sh.Dinesh Kumar Prashar, Dy.Manager, Punjab

National Bank.

(iii) PW26 Sh.K.B.Relhan, Senior Manager, Punjab National

Bank.

(iv) PW15 Sh.R.Vaidhyanathan, Chief Manager, Indian

Overseas Bank ;

(v) PW18 Sh.S.N.Choudhary, Senior Manager, Oriental

Bank of Commerce.

(vi) PW19 Sh.Brijesh Kumar Sharma, Assistant Manager,

State Bank of India.

(vii) PW25 Sh.Harsharan, Officer, Canara Bank.

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43. These witnesses have proved the bank records

being maintained by their respective banks during regular

course of its business, so far as relevant for the present case.

44. Third Category of witnesses are the ones who

have deposed about the nonexistence of the consignor i.e. M/s

Cosmic Computers & Peripherals, Hyderabad & transporter i.e.

M/s K.R.Golden Transport Company. This category further

includes a witness who deposed about the report dated

16.03.1998 submitted by M/s Railway Claim Settlers. This

category includes :

(i) PW21 Sh.P.Nagesham, Postman, Hyderabad ;

(ii) PW23 Sh.M.B.Reddy, Assistant Director, Intelligence

Bureau, Hydrabad ;

(iii)PW24 Sh.Jitender Tripathi, Senior Investigator, M/s

Allied Recovery & Investigation Bureau ;

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45. Fourth Category of witnesses are

miscellaneous witnesses of house search and specimen

signatures and those who were joined during investigations by

the Investigating Officer including the CBI officers who on

directions of IO conducted part investigations. This category

includes :

(i) PW20 Sh.P.K.Aggarwal, AO, NIC ;

(ii) PW22 Sh.D.K.Bhattacharya, Joint Director General

Commerce & Industries ;

(iii) PW28 Sh.B.M.Pandit, Inspector, CBI, EOWI ;

(iv) PW31 Sh. S.S.Atwal, DSP, CBI ;

(v) PW32 Sh. S.Balakrishna Shetty, Officer, Vijaya Bank ;

(vi) PW33 Sh. R.C.Madan, Officer, Punjab National Bank ;

(vii) PW34 Sh. R.K.Saran, Additional S.P., CBI ;

(viii)PW35 Sh. B.S.Kanojia, Clerk, Syndicate Bank ;

46. Fifth Category of the witness examined by

the prosecution was the one who had given sanction for

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prosecution of the accused public servants. This category

includes :

(i) PW1 Sh.Sujit Dass, General Manager, NIC, Calcutta:

who had given sanction for prosecution with respect to

accused Girish Chandra Gupta & Vijay Pal Pandhi ;

47. Sixth Category of witnesses includes those

who remained associated with investigations of the present

case in one form or the other, including the Investigating

Officer. This category includes the handwriting expert. This

category consists of :

(i) PW27 Sh. Mohinder Singh, Assistant, GEQD, CFSL ;

(ii) PW29 Sh.S.K.Kashyap, Additional S.P., CBI ;

(iii) PW30 Sh.R.P.Kaushal, Additional S.P., CBI.

48. The detail deposition of these witnesses is not

being adverted to, as the same shall be referred hereinafter

while dealing with the necessary ingredients of the offence,

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with which accused have been charged, visavis the rival

contentions advanced by Ld.Special PP for CBI, as well as by

Ld.Defence Counsels for the accused persons.

49. All the prosecution witnesses were cross

examined in detail by Sh.C.L.Gupta, Sh. Sunil Chaudhary,

Sh. Javed Hamid and Sh.R.K.Kohli, Advocates,

Ld.Defence Counsels for the accused persons. The cross

examination of the witnesses is not being mentioned for the

sake of brevity, but the same and material portion thereof,

more particularly, the one referred to during the course of

arguments, shall be adverted to hereinafter, while appreciating

the legal and factual issues raised on behalf of the accused,

alongside appreciation of evidence in entirety.

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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.

S T A T E M E N T O F A C C U S E D :

50. Separate statements of all the accused persons

were thereafter recorded under section 313 Cr.P.C., wherein

the prosecution evidence against them was put, which they

denied.

51. On being asked, accused no.1 Girish Chandra

Gupta, accused no. 3 Munish Yadav & accused no. 7 P.C.Mohan

wished to examine witnesses in their defence. They were

permitted to do so.

D E F E N C E E V I D E N C E :

52. Availing the given opportunities, accused no. 7

P.C.Mohan had examined one witness in his defence i.e. DW1

Mrs. Radha Mohan Sharma. Accused no.1 Girish Chandra

Gupta had examined two witnesses in his defence.

Sh.A.K.Goel, posted as Dy. Manager with NIC, Dehradun was

examined as DW2 and Sh.Om Prakash, ASI, Malkhana

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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.

Incharge, EOWI, appeared in the witness box as DW5.

Accused no. 3 Munish Yadav, apart from examining himself

under section 315 Cr.PC, had examined two other witnesses in

his defence. Sh.Kartar Singh Yadav, appeared in the witness

box as DW4 and Sh.Kishan Lal Soin, as DW6.

53. Accused no. 2 Vijay Pal Pandhi, accused no. 4

Arvind Kumar Sharma and accused no.5 Kunwar Vijay Juneja

despite grant of opportunity, did not wish to examine any

witness in their defence. Thus, defence evidence qua them was

closed.

54. DW1 Mrs. Radha Mohan Sharma was

examined on behalf of accused no. 7 P.C.Mohan. She appeared

in the witness box and deposed that she joined M/s B.L.Travels

as Secretary and employee of P.C.Mohan. She deposed that

P.C.Mohan had employed one Jitender who worked with him

till the year 2000 and till that time he use to visit the premises

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Judgement in the matter of:-
CC No.: 31 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.

used by P.C.Mohan for collecting documents. On being cross

examined by Ld.PP for CBI, this witness denied the suggestion

that she is deposing falsely being wife of accused P.C.Mohan.

She, however, admitted that Jitender used to visit the premises

in presence of P.C.Mohan as well.

55. DW2 Sh.A.K.Goel, posted as Dy. Manager

with NIC, Dehradun was examined on behalf of accused no. 1

G.C.Gupta. He appeared in the witness box and submitted

certified copy of circular dated 16.02.1996 with regard to

"Performance of Technical Duties" and the same was proved as

Ex. DW2/A. He also proved on record order dated 19.08.2013

Ex. DW2/B with respect to G.C.Gupta whereby his suspension

order was revoked and he was directed to join DDRO,

Dehradun. On being cross examined by Ld.PP for CBI, this

witness admitted that circular Ex. DW2/A brought by him was

marked to Regional Office, Chandigarh. This witness, during

cross examination by Ld. P.P. stated that he does not have any

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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.

knowledge of the conditions mentioned in order Ex. DW2/B.

56. Accused Munish Yadav sought permission to

examine himself u/s 315 Cr.P.C, which was granted to him and

he examined himself as DW3. During which he deposed that

Rajpal Yadav using the name of his firm had applied for

issuance of this policy and lodged the claim. He deposed that

none of the supporting documents filed with the claim was

signed by him. DW3 further deposed that Rajpal Yadav

without his knowledge, had deposited the cheque of claim

amount in the account of M/s M.S.Computers and

Communications. He deposed that it was only on insistence of

his father, on whom pressure was exerted by his Seniors, that

he released this amount to Rajpal Yadav after adjusting the

amount, which he had to take from Rajpal Yadav.

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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.

57. Sh.Kartar Singh Yadav, appeared in the

witness box as DW4 on behalf of accused accused no. 3 Munish

Yadav. This witness deposed that he is the father of accused

Munish Yadav and his son has been falsely implicated in this

case.

58. On being cross examined by Ld.PP for CBI,

this witness deposed that he had not lodged any complaint

against Raj Pal Yadav. This witness denied the suggestion

that neither he nor his son i.e. Munish Yadav had given any

written complaint to CBI or any other authority and thats why

he is not having any copy of complaint. He further denied the

suggestion that no complaint was lodged as his son was party

to this conspiracy.

59. Sh.Om Prakash, ASI, Malkhana Incharge,

EOWI, was also examined on behalf of accused no. 1

G.C.Gupta. This witness appeared in the witness box as DW5

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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.

and proved on record receipt Ex. DW5/A whereby documents

mentioned therein were returned to G.C.Gupta, which were

taken into possession during investigations, copy of said

counter foil bearing signatures of Sh.Mahesh Chand Gupta is

Ex. DW5/A1, copy of application filed by CBI before concerned

court seeking permission to return the unrelied documents is

Ex. DW5/B, memo dated 01.06.2004 issued by the then S.P.

Sh. Alok Mittal, directing the Investigating Officer to return

the unrelied documents obtaining necessary court permission is

Ex. DW5/C, application seeking court permission to return the

unrelied documents is Ex. DW5/D and copy of order passed by

the concerned court dated 09.06.2004 is Ex. DW5/E. This

witness was not at all cross examined on behalf of CBI.

60. Sh.Kishan Lal Soin, appeared in the witness

box as DW6 on behalf of accused accused no. 3 Munish Yadav.

This witness deposed that he visited the house of Munish

Yadav and requested him and his father to return the amount

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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.

of Raj Pal Yadav which was got deposited by Raj Pal Yadav in

the account of Munish Yadav.

61. On being cross examined by Ld.PP for CBI,

this witness admitted that Munish Yadav had not returned the

complete amount to Raj Pal Yadav. DW6 during cross

examination denied the suggestion that he knew that the

amount was a fraudulent / cheated amount, before going to the

house of accused Munish Yadav.

62. I have heard the arguments advanced by

Sh.Harish Kumar Gupta, Ld.Special Public Prosecutor for

CBI. I also had the privilege to hear arguments from

Sh.Ramesh Gupta, Ld.Senior Advocate and

Sh.C.L.Gupta, Advocate on behalf of accused no.1 Girish

Chandra Gupta and Sh.Sunil Chaudhary, Advocate on

behalf of accused no.2 V.P.Pandhi, the public servants.

Sh.Ravinder Chadha, Advocate, had advanced arguments

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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.

on behalf of accused Munish Yadav. On behalf of accused no. 4

Arvind Kumar Sharma and accused no. 5 K.V.Juneja,

Sh.R.K.Kohli, Advocate had advanced arguments. Accused

P.C.Mohan in his quest to defend himself had submitted his

contentions stating that he does not wish to be assisted by any

Counsel.

A R G U M E N T S O N B E H A L F O F C B I :

63. It is contended by Ld.Special PP for CBI

relying upon the deposition of the witnesses examined by them

during the course of trial, that prosecution has been able to

establish its case against the accused persons.

64. It is submitted by Ld. Public Prosecutor that

accused public servants had abused their official position and

thus criminally misconducted themselves, so as to cause

pecuniary advantage to their coaccused persons and

corresponding wrongful loss to National Insurance Company

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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.

Limited. He further contended that the accused public

servants by abusing their official position had entered into a

criminal conspiracy with the private persons and facilitated

them to have a Marine Insurance Policy and to clear the claim

on the basis of forged documents, knowing or having reasons to

believe the same to be forged ones.

65. He contended that the insured had obtained a

policy on the basis of a bogus transaction, knowing or having

reasons to believe that no such goods which were sought to be

insured, were transported. He contended that the consignor as

well as transporter were nonexistent. It is submitted by him

that the insured as well as other coaccused persons submitted

bogus documents in support of the claim and public servants in

furtherance of the conspiracy, let the same on record and

without verifying the genuineness of the same, passed the

claim to cause wrongful gain to the accused private persons,

including the surveyor and others and corresponding wrongful

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Dated : 16.10.2014.

loss to NIC. He contended that all the accused persons be

accordingly convicted under relevant provisions of law.

D E F E N C E A R G U M E N T S :

66. To defend the accused persons, Sh.Ramesh

Gupta, Ld.Senior Advocate along with Sh.C.L.Gupta,

Sh.Sunil Chaudhary, Sh.Ravinder Chadha and

Sh.R.K.Kohli, Advocates, Ld.Defence Counsels had led a 3

dimensional attack on the prosecution case. The first

dimensional attack was on legal issues. Second dimensional

attack was based on mixed questions of law and facts.

Whereas, the third dimension of their arguments, revolved

around the factual aspects as has come up on record, on the

basis of oral and documentary evidence, during the course of

trial.

67. Ld.Defence Counsels had opened their

arguments raising a LEGAL ISSUE stating that prosecution

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Dated : 16.10.2014.

has wrongly invoked Section 13(1) (d) of P.C.Act. It is contended

that as there are no allegations of payment of any illegal

gratification by the insured, surveyor or other private accused

persons to the accused public servants, therefore, the

provisions of Section 13(1) (d) of Prevention of Corruption Act,

cannot be invoked.

68. Second dimensional attack of Ld.Defence

Counsels was on mixed questions of "Law and Facts". The

same was with respect to the sanction for prosecution granted

against the public servants. The arguments advanced on this

aspect were twofold ie. :

(i) Incompetence of Sanctioning Authority: The authority

which had passed the sanction orders qua the public servants

was not competent to pass the same, therefore, the sanction

orders are bad in law.

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Dated : 16.10.2014.

(ii) Nonapplication of mind : Even if it is assumed that the

sanctioning authority was competent to pass the sanction

orders, the same were passed in a mechanical manner and

without application of mind, as the sanctioning authority has

failed to pass sanction order against other similarly situated

officers who had performed the same functions ie. of processing,

recommending or approving the claim, as has been ascribed by

the prosecution against accused G.C.Gupta and V.P.Pandhi.

69. It is contended that as the sanction orders

were bad in law, therefore, the whole proceedings have become

nonest.

70. Third dimensional attack on the prosecution

case raised by Ld.Defence Counsels was on factual aspects, vis

avis the necessary ingredients of the offences with which

accused persons were charged.

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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.

71. These contentions raised by Ld.Defence

Counsels are as under:

(i) Unfair Investigations : That, the investigations have not

been conducted by the investigating agency in a fair manner as

"pick and choose policy" was adopted and the officers who had

performed similar roles were not made accused and the present

accused have been wrongly and falsely implicated, therefore

they be acquitted of the charge.

(ii) No meeting of minds : That, there is no evidence

brought on record by the prosecution depicting any meeting of

mind, amongst the accused public servants on one hand and

the private persons ie. insured, surveyor and recovery agents

on the other hand, therefore, there is no question of any

conspiracy whatsoever between these two set of accused.

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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.

(iii) No overt act on the part of public servants : That, the

accused public servants had not done anything, in order to

achieve the socalled object of conspiracy as they were not party

to any such conspiracy / offence.

(iv) Official discharge of duties: That, the accused public

servants did, what was their official duty and had only

processed / recommended / passed the claim on the basis of the

recommendations / notes prepared by the subordinate staff.

(v) No knowledge about forgery: That, the accused public

servants did not have any knowledge that the documents

annexed with the claim form by the insured or other accused

persons, were forged ones.

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Dated : 16.10.2014.

(vi) No duty of the public servants for verification of

documents: That, even otherwise, it was not the duty of

accused public servants to verify the genuineness of the

documents. Further, they had no reason to doubt the

genuineness of the documents so annexed with the claim form.

72. Apart from the above contentions which were

commonly advanced on behalf of all the accused persons,

Sh.Ravinder Chadha, Advocate and Sh.R.K.Kohli,

Advocate, Ld.Defence Counsels for accused no.3 Munish

Yadav, Accused no.4 Arvind Kr.Sharma and accused no.5

K.V.Juneja, supplemented the contentions against the

prosecution case. Accused no.6 P.C.Mohan refused to take

legal assistance despite being asked, in order to defend

himself. He on his own had advanced some contentions on

factual aspects visavis the necessary ingredients of the

offences, with which he was charged. The same are as under:

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Dated : 16.10.2014.

(i) No mensrea / involvement of accused Munish

Yadav: Sh.Ravinder Chadha, Ld.Defence Counsel had

contended that all the documents which prosecution has relied

upon and proved during trial in support of the claim, were

signed by and submitted with the insurance company by one

Rajpal Yadav. He contended that Munish Yadav never applied

for any insurance policy, nor he has signed any claim form or

have collected the cheque of claim proceeds from the Insurance

Company.

(ii) Unfair Investigations: Ld.Defence Counsel had

further contended that signatures of Munish Yadav were

wrongly and fraudulently obtained by the Investigating Officer

during investigations on the GR Ex.PW.29/J. He contended

that this document was not there on record and was

fraudulently entered in the records by the investigating officer

after getting signatures of Munish Yadav on it, in the garb of

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Dated : 16.10.2014.

obtaining his specimen signatures. Ld.Defence Counsel

contended that said Rajpal Yadav had used the address of

Munish Yadav and had deposited the cheque of claim proceeds

in the bank account of Munish Yadav, without his knowledge.

(iii) Specimen signatures & the Expert Report thereon

cannot be relied upon: Sh.Ravinder Chadha, Advocate,

relying upon the judgement titled ""Sapan Haldar & Anr.

vs. State" decided by Hon'ble High Court of Delhi in

Crl.Appeal No.804/01 decided on 25.05.2002, had contended

that the investigating officer had taken the specimen

signatures in violation of law and the precedents laid down by

Hon'ble High Court, therefore the same cannot be relied upon,

for any purpose whatsoever.

(iv) No pecuniary advantage : Ld.Defence Counsel

relying upon the defence witnesses so examined by them, had

contended that Munish Yadav due to pressure of senior officers

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of his father and relatives, had withdrawn the money from his

bank account and handed it over to Rajpal Yadav, for which he

cannot be held liable. He contended that Munish Yadav had not

obtained any pecuniary advantage or wrongful gain out of this

transaction, therefore he cannot be fastened with any criminal

liability.

(v) Recovery amount can come from the recovery

agents: It is contended by Sh.R.K.Kohli, Advocate,

Ld.Defence Counsel for accused Arvind Kumar Sharma that as

per the regular practice and procedure, the recovery agents

negotiate with the transporter with respect to more than 1 case

of a particular insurance company and at times, with respect to

cases of more than 1 insurance company, with whom the

recovery agent is on the panel. He contended that the recovery

agents used to get a consolidated amount from the transporter

and subsequently can deposit the proportionate recovery

amount, so collected with the insurance company from his own

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account. He contended that this being the regular practice /

procedure, therefore no offence whatsoever is stated to have

been committed by his clients.

(vi) Recovery from the transporter cannot be part of the

conspiracy: It is contended by Sh.R.K.Kohli, Advocate,

Ld.Defence Counsel for accused Arvind Kumar Sharma that

the object of conspiracy, if any, stands achieved the moment,

claim is passed and the claim amount is released. He

contended that the same concludes and culminates the

conspiracy if any. Ld. Defence Counsel submitted that

appointment of recovery agent for recovery from the

transporter is a subsequent event and the same cannot be

brought under the umbrella of the alleged conspiracy. He

contended that no role whatsoever can be ascribed to accused

Arvind Kumar Sharma to have been done in furtherance of the

conspiracy.

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Dated : 16.10.2014.

(vii) No Role of accused K.V.Juneja : It is submitted by

Sh.R.K.Kohli, Advocate Ld.Defence Counsel that in the entire

prosecution evidence, no overt act has been alleged against

accused K.V.Juneja. He contended that as per prosecution case

K.V.Juneja had merely collected the documents on behalf of

M/s Pooja International, for the purposes of having the

recovery affected from the transporter.

(viii) Survey / Tracing Report not relevant for passing of

the claim: It is contended by accused P.C.Mohan that the

tracing report was not filed by him. He contended that certain

words on this report were got written from him by his employee

during the period of his hospitalization. He further contended

that even otherwise the survey / tracing report submitted by

the surveyor is not a binding document and it may or may not

be relied upon by the insurance company, to pass the claim.

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Dated : 16.10.2014.

(ix) Survey Report cannot be held as a "forged

document" : It is contended by accused P.C.Mohan that even

if the survey / tracing report is presumed to be his, the same

cannot come under the definition of "False document" as

defined under section 464 IPC, therefore he cannot be held

liable for the offence, with which he has been charged.

73. To supplement the oral contentions, written

submissions were also filed by Ld.Defence Counsels on behalf of

accused G.C.Gupta and Munish Yadav.

A P P R E C I A T I O N O F E V I D E N C E A N D

R I V A L C O N T E N T I O N S :

74. Before adverting to appreciate the prosecution

as well as defence evidence which has come up on record visa

vis the charges against the accused persons, as well as the

arguments advanced on the mixed questions of facts and law, I

deem it appropriate to deal with that contentions first which

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have been raised by Ld.Defence Counsels, on purely legal

aspects, in their quest to demolish the prosecution case at its

threshold.

75. The opening contention of Ld.Defence Counsels

was that, there is no averment or allegation in the entire

charge sheet of extension of any "illegal gratification" on the

part of insured or other private accused persons, to the accused

public servants, therefore by no stretch of imagination, the

provisions of Section 13(1) (d) of Prevention of Corruption Act,

could have been invoked. It is contended that on this ground

itself, the case cannot proceed and accused persons should be

acquitted.

76. In order to deal with this contention of

Ld.Defence Counsels, it is pertinent to make a mention of the

relevant provisions of Section 13 (1) (d) of Prevention of

Corruption Act. The same is as follows :

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Section 13: Criminal misconduct by a public servant :
(1) A public servant is said to commit the offence of criminal
misconduct,
(a) . . .
(b) . . .
(c) . . .
(d) if he,
(i) by corrupt or illegal means, obtains for
himself or for any other person any
valuable thing or pecuniary advantage ; or

(ii)by abusing his positioning as a public
servant, obtains for himself or for any
other person any valuable thing or
pecuniary advantage ; or

(iii)while holding office as a public
servant, obtains for any person any
valuable thing or pecuniary advantage
without any public interest ; or
(e) . . .

77. The phrases namely "corrupt , illegal means"

and "by abusing his position as public servants" are different

categories of corrupt practices, which are conjuncted by the

words "or" and not by the conjunction "and". This in itself

indicates that these three different categories are alternate

misconduct on the part of public servant and either of these

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three practices, if done by public servant then the same can

constitute an offence under this Section.

78. The phraseology "By abusing his official

position as Public Servant" covers the acts done by the public

servant otherwise than by corrupt or illegal means. The gist of

the offence under this clause is, that a public officer abusing

his position as "public servant" obtains for himself or for

other person, any valuable thing. The word "abuse" used by

the Legislature means "misuse", ie. using his position for

something which is not intended. That abuse of the position

may be by corrupt or illegal means or otherwise than those

means". In view thereof, the Legislature never intended that

there has to be an express evidence of illegal gratification

before invocation of this section. In case, there are instances

and allegations that a person has abused his position as a

public servant, in order to cause advantage to anyone, that in

itself is sufficient for invocation of this Section.

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79. Meaning thereby that in absence of any

allegations by the prosecution on the part of public servant of

demand and acceptance of illegal gratification for showing any

favor to a private individual, the provisions of Prevention of

Corruption Act cannot be invoked, as urged by Ld.Defence

Counsels, to my mind is farfetched and devoid of merits. As

there are allegation of abuse of official position by the public

servants in order to cause pecuniary advantage to their co

accused, this clause of P.C.Act very much comes into play.

80. In view thereof, the contention advanced by

Ld.Defence Counsels that in the present case there are no

allegations on record that any of the public servants, who are

accused herein had adopted any corrupt or illegal means or

have obtained any pecuniary advantage for themselves, thus

section 13(1) (d) of P.C.Act cannot be invoked, is rejected.

However, the prosecution has to establish the necessary

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ingredients of the offences, with which the accused persons

have been charged, on the basis of the evidence which has come

up on record, with which I shall be dealing hereinafter.

81. Having dealt with the contentions urged by

Ld.Defence Counsels on behalf of the accused persons on purely

legal grounds, I shall now delve upon to consider the

arguments raised involving mixed question of "Law and

Facts".

82. Leading a doublepronged attack on the prosecution case, Sh.Ramesh Gupta, Ld.Senior Advocate along with Sh.C.L.Gupta and Sh.Sunil Chaudhary, Advocates, Ld.Defence Counsels appearing on behalf of the public servants, contended that the provisions of Section 19 of Prevention of Corruption Act is a mandatory provision and the Court does not have the jurisdiction to take cognizance when the "sanction" under this provision is granted in mechanical C.C.No: 31 / 2011 Page No.53 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

manner and without application of mind and that too, by an authority which was not competent to grant the same.

83. Ld.Defence Counsels contended that the sanction order passed by PW1 Sujit Dass against accused G.C.Gupta ie. Ex.PW.1/A ; and accused V.P.Pandhi ie. Ex.PW. 1/C are bad in law on 2 grounds. It is contended that PW1 was not the competent authority to pass the sanction order and secondly, the same is invalid and bad in law, as it was passed in a mechanical manner and without application of mind. It is contended that the sanctioning authority has failed to take into consideration the fact that other officers who have issued the policy or recommended / approved the claim, were not proceeded against and no sanction for prosecution, was granted against them.

84. I have considered the submissions advanced on this aspect and have considered the relevant provisions of law C.C.No: 31 / 2011 Page No.54 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

in the light of the precedents relied upon by Ld.Defence Counsels to substantiate their contentions..

85. For administration of Criminal Justice System, an onerous duty is cast on the Courts, to effectively tackle and control the endemic of offences, so as to prevent the society from drifting towards savage society. A balanced approach is required to be adopted by the courts giving strict interpretation to the Clauses of the Penal Provisions and simultaneously being mindful of the inviolable Constitutional Rights granted to the accused, so as to ensure fair trial.

86. Subjecting any individual to undergo "criminal trial" is an encroachment / restriction on his fundamental right to "life and liberty". As per the constitutional mandate enshrined in Article 21 of Constitution of India, granted to each and every citizen of the country, no one can be deprived of his right to life and liberty, except by the due "process of C.C.No: 31 / 2011 Page No.55 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

law". Thus, if anyone accused of any offence, is to be subjected to criminal trial, then the same has to be in conformity to the procedures established by law. As whenever a particular procedure is prescribed by law, then all other procedures to do the same are proscribed.

87. Public servants in whatever capacities they are holding their offices, are supposed to give effect to the objects for which their organization is functioning, so that the benefits arising out of their actions, should benefit their country in general and their organization in particular. To achieve the object, for which the policies and plans of the organization are put in place, all the public servants are expected to discharge their functions with utmost propriety and all fairness. Experience however has revealed that many public servants, instead of using their good offices for the public good, misuse the same for their personal benefits by indulging into corrupt and improper practices.

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Judgement in the matter of:-

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

88. Legislature in its wisdom in order to curb such corrupt and improper practices had brought "Prevention of Corruption Act, 1988" on the Statute Book for not only, punishing those who had violated the very oath of honesty and sincerity with which they had assumed their office and indulged in 'corrupt practices', but also to deter the others from treading the path of dishonesty.

89. Being aware of the fact that some of the honest public servants may be dragged into vexatious and uncalled for prosecution, the Legislature had in Section19 of Prevention of Corruption Act, incorporated a "saviour clause" so as to protect them and to encourage them to continue with the good work. But for this clause, the government process would become 'static' as public servants would hesitate to take even the most honest, bonafide and genuine decisions fearing harassment from frivolous and uncalled for allegations. C.C.No: 31 / 2011 Page No.57 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

90. To balance these two conflicting interests, one of which is to give effect to the very object for which Prevention of Corruption Act was brought on the Statute Book to deal with the guilty sternly and on the other hand, to give effect to the shield provided by the Legislature to protect honest and diligent public servants from vexatious and uncalled for prosecution, the onerous duty has been placed on the Courts, which are an important cog in the wheels of Administration of Justice. The courts are obligated to strike balance between these two conflicting interests in such a manner, so that majesty of "Rule of Law" is neither undermined nor defeated.

91. Before proceeding to advert upon the submissions advanced, it is pertinent to make mention of Section 19 of Prevention of Corruption Act, which is reproduced as under: C.C.No: 31 / 2011 Page No.58 of 188 Judgement in the matter of:-

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Dated : 16.10.2014.

SECTION 19 : PREVIOUS SANCTION NECESSARY FOR PROSECUTION :

(1) No Court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government ;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government ;

(c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under subsection (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

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Dated : 16.10.2014.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) :

(a) No finding, sentence or order passed by a Special judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under subsection (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby ;

(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in failure of justice;

(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

(4) In determining under subsection (3) whether the absence thereof, or any error, omission or irregularity in, such sanction has occasioned or resulted in failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

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Dated : 16.10.2014.

Explanation - For the purposes of this Section,

(a) error includes competency of the authority to grant sanction ;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.

92. The object and character of this provision is evidently emanating from the words used in the Section by the Legislature : "No Court shall take cognizance of such offence, except with the previous sanction". Use of words "No" and "shall" makes it abundantly clear that the bar on the exercise of power of the Court to take cognizance of an offence is absolute and complete. As per Black's Law Dictionary, the word "cognizance" means jurisdiction or the exercise of jurisdiction. In common parlance, it means "taking notice of". In view thereof, in absence of the sanction, the court is precluded from even taking notice of the offence or exercising its jurisdiction, in respect of a public servant. C.C.No: 31 / 2011 Page No.61 of 188

Judgement in the matter of:-

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

93. Thus, the provision has been imparted a mandatory character and has been held so by various authoritative pronouncements by Hon'ble Apex Court. While holding grant of sanction to be a prerequisite or sinequanon for taking cognizance, regard is to be had to the fact that it can be a shield to discourage vexatious prosecution of innocent public servant, but it should not be permitted to be used as a weapon against the prosecution by the guilty.

94. The protection given by the Legislature is to be extended to the extent provided therein and it cannot and should not be stretched elastically to cover those, who are not intended by the Legislature to be under the protective umbrella. As to my mind the Legislature by enacting any provision in the Act, which prohibits the taking of cognizance of offence by a Court, unless certain conditions are complied with, did not purport to condone the offence. Thus, such provision is to be construed on the basis of words used therein, without C.C.No: 31 / 2011 Page No.62 of 188 Judgement in the matter of:-

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

importing the words, which are not there.

95. In the backdrop of above, I shall consider the arguments advanced by Ld.Defence Counsels raised by them to challenge the authenticity of the sanction order Ex.PW.1/A passed qua G.C.Gupta and Ex.PW.1/C qua accused V.P.Pandhi by PW1 Sh.Sujit Dass, the then General Manager, NIC.

96. Firstly, I shall consider the arguments advanced on the aspect of "competence of the sanctioning authority" to pass the sanction orders.

97. Though, Ld.Defence Counsels during the course of arguments had contended that PW1 was not the competent authority to pass sanction orders against G.C.Gupta, who at relevant point of time was posted as Assistant Manager NIC, and V.P.Pandhi who was also posted as such. However, nothing has been brought on record either C.C.No: 31 / 2011 Page No.63 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

during the cross examination of PW1 or during the course of arguments on behalf of the accused persons, to challenge the competence of PW1, the then General Manager NIC, with respect to passing of the sanction orders.

98. In terms of Section 19 (1) (c) of the Act, the sanction for prosecution has to be granted by an authority, which is competent to remove the said person from his office.

99. The question of competence of the "appointing / sanctioning authority" came up for consideration before Hon'ble Supreme Court in case titled "Mohd.Iqbal Ahmed Vs. State of Andhra Pradesh", reported as AIR 1979 SC 677, wherein it was held that :

"... The authority which would be competent to grant sanction is the authority which is entitled to remove from service the public servant against whom sanction is sought".

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Dated : 16.10.2014.

100. Admittedly, in the present case, PW1 Sujit Kumar Dass, was posted as General Manager NIC at the relevant point of time. Being General Manager, it was PW1 who was the authority capable of removing the officers of the rank of Assistant Manager from the services. Nothing has been put to this witness during his cross examination either on behalf of accused G.C.Gupta or on behalf of accused V.P.Pandhi, even to suggest that General Manager was not the competent authority to remove an officer of the rank of Assistant Manager from his office.

101. Thus PW1 being General Manager was the competent authority to remove an officer of the rank of Assistant Manager, and thus had the requisite competence to pass the sanction orders qua accused no.1 and 2, which he did.

102. In view thereof, I do not find any grounds in this contention of Ld.Defence Counsels that PW1 was not C.C.No: 31 / 2011 Page No.65 of 188 Judgement in the matter of:-

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having competence to pass the sanction orders Ex.PW.1/A and Ex.PW.1/C.

103. This has brought me down to the second limb of the contentions raised by Ld.Defence Counsels stating that sanction orders were passed by PW1 without application of mind. It is contended by Ld.Defence Counsels relying upon the cross examination of PW1 that he had failed to look into the relevant documents and had merely passed the sanction orders at instance of CBI without taking into consideration that no sanction for prosecution is passed by him against the other officers, who had performed similar roles. It is further contended that sanctioning authority had passed the sanction order without referring the matter to Chief Vigilance Officer and without getting the opinion of CVC on the same.

104. I have considered the submissions advanced and have perused the sanction orders as well as deposition of C.C.No: 31 / 2011 Page No.66 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

PW1 Sh.Sujit Kumar Dass.

105. It has been held by Hon'ble Apex Court time and again that the Court where the question of validity of sanction on the grounds of 'non application of mind' is raised, has to see as to whether the sanctioning authority did consider all the evidence collected by the investigating agency ie. oral as well as documentary.

106. Hon'ble Apex Court in a recent case titled "State of Maharashtra Vs. Mahesh G.Jain" reported as Criminal Appeal no.2345 of 2009 decided on 28.05.2013 had aptly summed up the principles and guidelines which are required to be followed to decide the question which inundates the Trial Court, challenging the sanction order.

107. Hon'ble Apex Court in this judgement had considered all the previous laws laid down by it, including the C.C.No: 31 / 2011 Page No.67 of 188 Judgement in the matter of:-

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

cases referred to and relied upon by Ld.Defence Counsel mentioned hereinabove.

108. Hon'ble Apex Court after appreciating the earlier precedents on the subject, had culled out the guiding principles in Para 13 of its Judgement, which are reproduced as under :

(a) It is incumbent on the prosecution to prove that valid sanction has been granted by Sanctioning Authority after being satisfied that a case for sanction has been made out.

(b) The Sanction Order may expressly show that the sanctioning authority has perused the material placed before him and after consideration of the circumstances, has granted sanction for prosecution.

(c) The prosecution may prove by adducing the evidence that the material was placed before the Sanctioning Authority and his satisfaction was arrived at, upon perusal of the material placed before him.

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Judgement in the matter of:-

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Dated : 16.10.2014.

                                    (d)          Grant   of   Sanction   is   only   an  
                                    administrative                                function                        and                 the

sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.

(e) The adequacy of material placed before the Sanctioning Authority cannot be gone into, by the Court, as it does not sit in Appeal over the Sanction order.

(f) If the sanctioning authority has perused all the material placed before him and some of them have not been proved, that would not vitiate the order of sanction.

(g) The order of sanction is a pre requisite, as it is intended to provide a safeguard to the public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity.

..... (emphasis supplied).

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Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

109. In view of these guiding principles, more particularly the principle mentioned at Point (d) (e) (f) and

(g) above, the adequacy of the material placed before the Sanctioning authority is not required to be gone into, as this Court is not sitting in appeal over the sanction order.

110. The discretion whether to grant or not to grant the sanction order lies with the sanctioning authority and it is the subjective opinion of the said administrative authority, which it has to arrive, on the basis of material placed before it.

111. The sanctioning authority was under an obligation to see the material placed before it by CBI, collected during the course of investigations and to arrive at a conclusion as to whether the same is sufficient and requires grant of sanction for prosecution of accused persons or not. C.C.No: 31 / 2011 Page No.70 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

112. In view thereof, it is to be seen as to whether the complete record of the investigations, including oral and documentary evidence collected was or was not placed before the sanctioning authority.

113. It is apparent on perusal of cross examination of PW1 conducted on behalf of accused G.C.Gupta that he had perused the report of CBI forwarded by S.P., which contained calendar of events, gist of allegations as well as opinion of CBI, before passing the sanction order. The factum of placing the complete record after conclusion of the investigations before the competent authority, has also been deposed so, by the investigating officer ie. PW30 R.P.Kaushal. No suggestion, whatsoever was given either to PW1 or to PW30 on behalf of the accused persons, that the same was either not produced before PW1 or he had not applied his mind on the same. PW1 during the course of his cross examination, did state that he after perusing the material collected by the investigating C.C.No: 31 / 2011 Page No.71 of 188 Judgement in the matter of:-

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

agency had passed the sanction order.

114. The other contention of Ld.Defence Counsels that the sanctioning authority had passed the sanction order without referring the matter to CVC, as per notification no. 98 / VGL/62 dated 15.10.2003, to my mind is also devoid of any merits on 2 counts. Firstly, the sanction order Ex.PW.1/A and Ex.PW.1/C were passed by the sanctioning authority on 17.06.2003 ie. much before the date of notification, relied upon by Ld.Defence Counsels. Secondly, because Section 19 of the Act, as interpreted by Hon'ble Apex Court makes it obligatory on the part of sanctioning authority to grant or not to grant the same on the basis of its own subjective satisfaction & without any influence from any other authority.

115. In view thereof, there was no requirement of referring the matter to CVC by the sanctioning authority, for getting its opinion before passing the sanction orders, as has C.C.No: 31 / 2011 Page No.72 of 188 Judgement in the matter of:-

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

been urged by Ld.Defence Counsels.

116. Another facet to this argument advanced by Ld.Defence Counsels was that the sanction orders are bad as no sanction for prosecution was passed by PW1 against other similarly situated officers. This contention of Ld.Defence Counsels does not hold waters as the sanctioning authority before whom the material is placed by CBI after investigations, is required to form an opinion qua those persons only, for whom sanction is sought, as to whether the same is to be granted or not. This is beyond the scope / purview and jurisdiction of sanctioning authority to pass sanction for prosecution against other officers qua whom neither any investigations were done, nor any evidence was collected nor the sanction was sought.

117. Even otherwise, the Legislature in order to stop unjustified claims raised on behalf of public servants to C.C.No: 31 / 2011 Page No.73 of 188 Judgement in the matter of:-

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Dated : 16.10.2014.

derive undue advantage of requirement of sanction have incorporated Section 19(3) of Prevention of Corruption Act which if read with section 465 of Cr.P.C, makes it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent Court, unless in the opinion of the Court, a failure of justice has been occasioned.

118. Hon'ble Apex Court in a recent case titled "State of Bihar & Ors. vs. Rajmangal Ram" in Criminal Appeal No.708 of 2014, arising out of SLP (Crl.) No.8013 of 2012, decided on 31.03.2014 ; has held that the Sanction Order cannot be held to be invalid and proceedings cannot be interdicted without giving any finding to the effect that a failure of justice as a result thereof, has occasioned.

119. Merely because any error or irregularity has occurred in the sanction order, the same is not to be considered C.C.No: 31 / 2011 Page No.74 of 188 Judgement in the matter of:-

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Dated : 16.10.2014.

fatal, unless it results in failure of justice.

120. In the present case, as we are at the fagend of the trial and accused public servants have already undergone the trial, further I have not found any error or omission in the sanction orders passed qua them by the sanctioning authorities against the accused public servants, resulting in any failure of justice.

121. Thus, I do not find any merits in the contentions advanced by Ld.Defence Counsels to challenge the authenticity of the sanction orders ie. Ex.PW.1/A and Ex.PW. 1/C, which to my mind have been passed by the sanctioning authority with due & proper application of mind.

122. Having held that the sanction for prosecution granted against the public servants was valid, I shall now delve upon the contentions of Ld.Defence Counsels on factual C.C.No: 31 / 2011 Page No.75 of 188 Judgement in the matter of:-

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Dated : 16.10.2014.

aspects, visavis the necessary ingredients of the offences, with which the accused persons were charged.

123. To better appreciate the deposition of prosecution witnesses in the light of contentions advanced, it is pertinent to chalk out the procedure for processing of "Marine Claims". The same as emanating out of material on record, in the form of documentary and oral evidence as per the deposition of PW11 N.K.Dutta, PW12 Gopa Sahu, PW3 A.K.Seth, PW4 A.L.Gambhir, PW7 A.K.Tiwari and PW8 Madan Lal Meena, which has not been disputed, even by the accused persons, is as under: Procedure for processing Marine Claims:

(a)Whenever any commercial transaction takes place between two parties located at different places for purchase of goods, the same are required to be transported by the seller to purchaser.

(b) These goods during the course of transportation, can be insured, for which Marine Open Policy is issued against premium.

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(c) The seller is known as "consignor" whereas, its recipient or purchaser is known as "consignee".

(d) Either of the two, can pay the premium for taking the "Marine Insurance Policy" and the said party is known as "insured" whereas, the company is known as "insurer".

(e) At the time of taking the policy, the insured submits the proposal along with requisite documents on which insurer, calculates the premium and after collection of the premium, a Cover Note is issued.

(f) Thereafter, the insurer issues the "Insurance Policy".

(g) If, during subsistence of policy, goods are either stolen or damaged during transit, a claim is lodged either to the "Policy Issuing Office" or to any nearest office on which a "surveyor" from the approved list of that branch, is appointed by the Branch Manager, to assess the loss.

(h) The surveyor so appointed, then submits a report along with the photographs and relevant documents.

(i) Concerned Clerk posted with NIC, then processes the claim and submits it to its higher authority, who recommends the claim and puts the same up for approval of the competent authority.

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(j) After approval of the competent authority, cheque is prepared by the accounts department, which is signed by 2 authorized signatories, whereafter it is handed over to the "insured / claimant".

(j) The Surveyor's Fee is also paid at the same time while settling the claim, as at times, surveyor receives his fee from the insured or the party, who had lodged the intimation of loss.

(k) If the right of recovery from the carrier / transporter is protected, the Branch Manager, after settling the claim can appoint a recovery agent, who then recovers whatever recovery, which can be affected from the transporter and deposits it with the insurance company, after getting approval of the same from the insurance company.

124. In view of abovementioned duties and obligations which these public servants, being responsible officers of National Insurance Company, were required to fulfil, it is to be seen whether they had performed their duties, as was expected from them or whether the actions and omissions of theirs were laden with any dishonest intention, C.C.No: 31 / 2011 Page No.78 of 188 Judgement in the matter of:-

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

in order to cause any pecuniary advantage to their coaccused persons for which regard is to be had to the evidence that has come up on record.

125. Prosecution evidence which has come up on record, visavis each of the accused facing trial is required to be considered. Conspiracy is the most pivotal part of the prosecution case, which is the primary charge against the accused persons, being axis around which revolves the other charges. As per the case of prosecution, the officers of NIC being public servants, had entered into a criminal conspiracy with the private persons, object of which was to cheat NIC.

126. It is contended by Ld.Prosecutor that the public servants knowing or having reasons to believe that the documents submitted for issuance of policy as well as those submitted in support of the claim to be forged ones, have facilitated the submission of same by or on behalf of the C.C.No: 31 / 2011 Page No.79 of 188 Judgement in the matter of:-

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

insured, to them on the basis of which the claim was passed, which led to release of payment by NIC to the private persons and thus they have caused pecuniary advantage to them and corresponding wrongful loss to NIC.

127. Ld.Public Prosecutor made an endeavour to invoke Section 10 of Indian Evidence Act. He, in order to buttress his arguments, contended that all the conspirators should be made constructively liable for the substantive offences committed, pursuant to the conspiracy on the basis of the "Principle of Agency". He contended that the public servants had entered into a conspiracy with the private persons, therefore the acts done by the private persons, pursuant to the conspiracy, in contemplation of law, should be treated as committed by each one of them, therefore all of them should be held responsible and liable for the same. C.C.No: 31 / 2011 Page No.80 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

128. I have considered the submissions advanced by Ld.Public Prosecutor. In order to appreciate the same, it is pertinent to make mention of Section 10 of Indian Evidence Act, which reads as under : SECTION 10 THINGS SAID OR DONE BY CONSPIRATOR IN REFERENCE TO COMMON DESIGN - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.

129. Bare perusal of this Section makes it evident that there is no such deeming provision in it, as has been contended by Ld.Prosecutor. No doubt, Section 10 rests on the 'Principle of Agency', but it lays down only a rule of relevancy. As per the provisions of this Section, anything done or said by one of the conspirators in reference to the common intention C.C.No: 31 / 2011 Page No.81 of 188 Judgement in the matter of:-

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becomes "relevant fact" as against each of the conspirators, to prove two things :

(i) Existence of the conspiracy ; and

(ii) That, they were party to this conspiracy.

130. This has been held so by Privy Counsel in case titled "Mirza Akbar vs. King Emperor" reported as AIR 1940 PC 176. This interpretation has been followed by Hon'ble Apex Court in catena of decisions.

131. Hon'ble Mr.Justice Jagannath Shetty had analyzed this Section in case titled "Kehar Singh & Ors. v/s State (Delhi Administration)" reported as 1988 (3) SCC 609, as under : "From an analysis of the section, it will be seen that Section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to C.C.No: 31 / 2011 Page No.82 of 188 Judgement in the matter of:-

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Dated : 16.10.2014.

commit an offence. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his coconspirator. One such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it."

132. In view thereof, distinction was made between the conspiracy and the offence (s) committed, pursuant to the conspiracy. It is only in order to prove the existence of conspiracy and parties to the conspiracy, that this rule of evidence, can be put in service.

"Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy."

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133. In view thereof, I do not find any merits in the contentions advanced by Ld.Public Prosecutor as the "Theory of Agency" cannot be extended thus far, that is to say, to hold all the conspirators guilty of actual offence(s) committed in execution of common design, if such offence(s) were committed by one of them, without participation of others.

134. Whether or not, conspirators will be liable for substantive offence other than the conspiracy and if so, to what extent, has to be proved on record by the prosecution on the basis of evidence which, I shall be adverting to hereinafter.

135. However, before going that far, I would hasten to add that prosecution has first to establish that all the accused persons facing trial, were in fact party to the alleged conspiracy with which they have been charged. C.C.No: 31 / 2011 Page No.84 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

136. In an attempt to demolish the prosecution case, Sh.Ramesh Gupta, Ld.Senior Advocate along with Sh.C.L.Gupta, Sh.Sunil Chaudhary, Sh.R.K.Kohli and Sh.Ravinder Chadha, Advocates vociferously contended during the course of arguments, that there is nothing on record brought by the prosecution during the course of evidence, from which it can be inferred that there was any meeting of mind between the public servants and the other accused persons. It is further submitted by Ld.Defence Counsels of all the accused persons, that the conspiracy can only be established on the basis of circumstantial evidence. Further, the circumstances proved, should be such that they must form a chain of events, leading to an irrepressible conclusion about guilt of the accused.

137. In support of their contentions, Ld.Defence Counsels had relied upon the law laid down in cases titled as under : C.C.No: 31 / 2011 Page No.85 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

(i )"Kehar Singh & Ors. vs. State" (supra) ;

(ii) "K.R.Purushotnaman vs. State of Kerala"

reported as 2005 (3) JCC (SC) 1847 ;

(iii) "Baldev Singh vs. State of Punjab";

reported as 2009 (3) SCC (CRI.) 66.

(iv) "John Pandian vs. State"

reported as 2011 (1) Crimes SC 1.

138. I have considered the submissions advanced and have perused the law laid down by Hon'ble Apex Court in the precedents relied upon by Ld.Defence Counsels. There is no denying the fact that Hon'ble Apex Court while holding that the offence of conspiracy is committed in secrecy and can be proved only by circumstantial evidence has held that these circumstances should be proved, beyond reasonable doubt, leading to the guilt of the accused.

C.C.No: 31 / 2011 Page No.86 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

139. Section 120A IPC defines "criminal conspiracy". Accordingly to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal, by illegal means such an agreement is designated as "criminal conspiracy".

140. In view of this definition, the gist of the offence is "an agreement to break the law". Parties to such an agreement are guilty of criminal conspiracy, though the illegal act agreed upon by them to be done, has not or could not be done. It is not necessary that all the parties to such an agreement should agree to do a single illegal act. It may comprise of commission of a number of acts. It is not necessary that all the conspirators must know each and every detail of the conspiracy.

141. Conspiracy is seldom an open affair. Its existence and objects can only be deduced from circumstances C.C.No: 31 / 2011 Page No.87 of 188 Judgement in the matter of:-

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Dated : 16.10.2014.

of the case and conduct of the accused, who are party to such conspiracy.

142. As Conspiracy has to be and can only be inferred from the physical manifestation of conduct of the conspirators / accused. Thus, to deduce actual meeting of minds amongst the accused person to find out transmission of thoughts, the actual words used by them during communication, are to be considered.

143. The conduct of the conspirators / accused are to be deciphered not only from the actual words spoken by them but also from their body language, mannerism and behaviour by which they intervene in the conversation taking place between the complainant and coaccused, as their state of mind has to be inferred on the basis of their conduct. C.C.No: 31 / 2011 Page No.88 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

144. Hon'ble Apex Court in case titled "V.C.Shukla vs. State" reported as 1980 (2) SCC ; had held that in most cases it will be difficult to get direct evidence of the crime, but conspiracy can be inferred even from circumstances giving rise to a conclusive or irrepressible inference of an agreement between two or more persons, committing an offence.

145. Hon'ble Apex Court in case titled "Noor Mohd. Yusuf Momin vs. State of Maharashtra" reported as AIR 1971 SC 885, has held : "...in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."

146. Hon'ble Apex Court in another case titled "John Pandian vs. State" reported as 2011 (1) Crimes SC C.C.No: 31 / 2011 Page No.89 of 188 Judgement in the matter of:-

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Dated : 16.10.2014.

1, has further held : "...that there must be a meeting of minds resulting the ultimate decision, taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred even from the circumstances giving rise to a conclusive or irresistible inference of crime between the two or more persons to commit an offence. It was further held that a few bits here and a few bit there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy ."

147. For the purposes of considering the conduct of the accused persons so as to deduce about his complicity with the conspiracy, a "rule of caution" has been laid down by Privy Counsel in case reported as AIR 1954 PC 140 that : "In a joint trial care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against others".

C.C.No: 31 / 2011 Page No.90 of 188

Judgement in the matter of:-

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Dated : 16.10.2014.

148. In case titled "Alvin Krumlewitch v. United States of America" reported as (93 L.Ed. 790) ; it has been held by Justice Jackson that : "codefendant in a conspiracy trial occupies an uneasy seat" and "it is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together."

149. These words of caution were reiterated by Hon'ble Apex Court speaking through Hon'ble Mr.Justice D.P.Wadhwa in case titled "State vs. Nalini" reported as 1999 (5) SCC 253 ; that : "There is a need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that "there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy". C.C.No: 31 / 2011 Page No.91 of 188

Judgement in the matter of:-

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Dated : 16.10.2014.

"It has been further held that criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy".

150. Hon'ble Apex Court in case titled "Esher Singh Vs. State of A.P." reported as 2004 (11) SCC 585 has held as under;

"A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused".

151. Being aware of the fact that for the purposes of appreciating the evidence on record with respect to the allegations of conspiracy, the circumstances in which the accused acted, their actions and mannerism are required to be considered, which I shall look into, mindful of the words of caution laid down by Hon'ble Apex Court in above referred precedents.

C.C.No: 31 / 2011 Page No.92 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

152. The marine policy Ex.PW8/DA was issued to cover a consignment purportedly to be sent by M/s Cosmic Computers & Peripherals, Hyderabad, the consignor consisting of computer parts to M/s M.S. Computers & Communications, the insured / consignee in Delhi through M/s K.R.Golden Transport Corporation. The claim was lodged by the insured, processed and passed by the Insurance Company / insurer on alleged short delivery of consignment by the transporter. In order to ascertain the authenticity and genuineness of the transaction the essential requisites are the existence of alleged consignor, the transporter through whom the consignment was sought to be transported and the short delivery to the consignee of the consignment by transporter.

153. In case, any of these links is missing or is not in existence, then as a necessary corollary it would follow that the whole transaction was false / fake and the claim amount has been wrongly and fraudulently obtained from the C.C.No: 31 / 2011 Page No.93 of 188 Judgement in the matter of:-

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

Insurance Company by cheating it and thus causing wrongful loss to it.

154. In order to ascertain above, the most important file is the claim file prepared and maintained by DO XXIII of NIC. The said claim file consisting of 27 pages is proved on record by PW3 Sh.A.K.Seth, Vigilance Officer of the Insurance Company. This file as per PW3 was taken in possession by Vigilance Department of the Insurance Company from DOXXIII in 1999. The same was handed over to IO PW29 S.K.Kashyap by PW5 V.K.Bajaj vide seizure memo Ex. PW5/A.

155. It is contended by Ld. Public Prosecutor that as the complete documents required for processing and settlement of claim are not available in the claim file Ex. PW3/2, therefore, that in itself is sufficient to prove that claim has been fraudulently given to the insured by accused public C.C.No: 31 / 2011 Page No.94 of 188 Judgement in the matter of:-

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Dated : 16.10.2014.

servants.

156. This contention of Ld. Public Prosecutor is controverted by Ld. Defence Counsels on the ground that as complete chain of handing over of the file and its preservance in safe custody has not been proved, therefore, nonavailability of the documents in claim file cannot be imputed on the public servants. Ld. Defence Counsels placed reliance on the precedent titled "Anil Maheshwari & Others Versus CBI"

reported as 2013 (136) DRJ 249.

157. I have considered the rival contentions and have perused the precedent relied upon in the light of evidence on record.

158. PW3 A.K.Seth during his cross examination did state that the claim files including Ex. PW3/2 were seized by his team and they had not carried out any other proceedings C.C.No: 31 / 2011 Page No.95 of 188 Judgement in the matter of:-

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Dated : 16.10.2014.

at the office of accused except seizing the files. He further stated that he cannot recollect from whose custody these files were seized. Similar version has come on record in the deposition of PW4 A.L.Gambhir and PW7 A.K.Tiwari the other officers of Vigilance team.

159. During his cross examination, PW29 S.K.Kashyap, the initial Investigating officer stated that he does not remember to have examined the aspect as to in whose custody, the claim files were for the period 1999 till 2001 when he seized the same from PW5 V.K.Bajaj. He admitted that he had not taken into possession the inventory regarding seizure of the files by the Vigilance department from DOXXIII, during the course of Vigilance enquiry in the year 1999.

160. The prosecution evidence which has come up on record reveals that the present claim file Ex. PW3/2 was the record of DOXIII of NIC where accused G.C.Gupta & C.C.No: 31 / 2011 Page No.96 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

V.P.Pandhi were posted at the relevant point of time. However, prosecution has not examined the officer of DOXXIII from whose custody, this file was seized for the first time by the Vigilance team of NIC. Further, no inventory of the documents available in the claim file was prepared by the officers of Vigilance department of NIC, so as to prove on record what were the documents available in the claim file at the time of sanction of the claim. The claim file was also not sealed either by the officers of Vigilance department or by IO at the time of respective seizure by them in the years 1999 & 2001, thus no sanctity of preservation of the documents in claim file was maintained.

161. In view thereof, the precedent relied upon by Ld. Defence Counsels in "Anil Maheshwari's case" (Supra) decided by Hon'ble High Court of Delhi in almost similar case squarely applies on this aspect. Thus the contention of Ld. Public Prosecutor that in absence of required documents from C.C.No: 31 / 2011 Page No.97 of 188 Judgement in the matter of:-

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Dated : 16.10.2014.

the file Ex. PW3/2 the public servants be hauled up for passing the claim fraudulently, does not hold ground.

162. While holding so, I would hasten to add that a counter contention raised by Ld. Defence Counsels, that for the purposes of adjudication of present case, the claim file Ex. PW3/2 cannot be looked into and is of no relevance, cannot be accepted. As the accused persons themselves are relying on the documents in the claim file and it is not the case of any of the parties that the documents on record in file Ex. PW3/2 were inserted subsequently by Vigilance Department or the Investigating agency. Neither any such suggestion was put on behalf of accused persons to prosecution witnesses from the Insurance Company nor to the witnesses from the investigating agency.

163. Thus the documents in the claim file are the relevant and important ones to ascertain the charges with C.C.No: 31 / 2011 Page No.98 of 188 Judgement in the matter of:-

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Dated : 16.10.2014.

which accused persons have been charged.

 N O N - E X I S T E N C E of M/s Cosmic Computers & Peripherals, the Consignor and M/s K.R.Golden Transport Corporation, the transporter / carriers :

164. As per material on record, alongwith the loss intimation, copy of a letter dated 02.01.1998 from M/s M.S. Computers & Communication to the consignor M/s Cosmic Computers & Peripherals was filed which is at page 17 of file Ex. PW3/2. As per this letter and copy of G.R. Ex. PW29/J, the address of alleged consignor is mentioned as 117, Lal Bunglow, Greenlands, Hyderabad 500016. The address of alleged transporter as per Ex. PW29/J was 780, Paiga Plaza, Bashir Bagh, Hyderabad.

165. It is alleged that during investigations, no such firms were found existing at the given addresses. C.C.No: 31 / 2011 Page No.99 of 188

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Dated : 16.10.2014.

166. Prosecution in order to prove the same had examined IO PW30 R.P.Kaushal, PW23 Inspector M.B.Reddy, CBI, Hyderabad and PW21 P.Nageshan, the postman, of the concerned area.

167. PW30 categorically deposed that to verify the existence of M/s Cosmic Computers & Peripherals and M/s K.R.Golden Transport Corporation he had requested S.P., CBI, Hyderabad on which Inspector M.B.Reddy was deputed. He deposed that Inspector M.B.Reddy after conducting personal enquiry and sending letters addressed to the alleged consignor and transporter, found no such firms existing at the given addresses. He deposed that Inspector M.B.Reddy had forwarded his letters Ex. PW23/A, Ex.PW.23/C and envelopes Ex. PW23/B and Ex.PW.23/D alongwith endorsement of the concerned postmen and their statements to him. C.C.No: 31 / 2011 Page No.100 of 188

Judgement in the matter of:-

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Dated : 16.10.2014.

168. Nothing material was put to the Investigating Officer during his cross examination on behalf of the accused persons except for the suggestion that he himself had not gone to Hyderabad to verify the existence or nonexistence of these firms, which he admitted. The other suggestion that the endorsement on the envelopes Ex. PW29/B and Ex. PW29/D were forged in collusion with CBI, Hyderabad was denied by PW30, the investigating officer.

169. PW23 Inspector M.B.Reddy is the most material witness in this regard. He deposed that pursuant to receipt of directions from the then S.P., CBI, Hyderabad he conducted verification of existence of M/s Cosmic Computers & Peripherals and M/s K.R.Golden Transport Corporation by sending letters at the addresses of these firms but the same were received back undelivered with endorsement of the respective postmen of the area. He proved his letters as Ex. PW29/A with respect to M/s Cosmic Computers & Peripherals C.C.No: 31 / 2011 Page No.101 of 188 Judgement in the matter of:-

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Dated : 16.10.2014.

and Ex. PW29/C with respect to M/s K.R.Golden Transport Corporation and respective envelops as Ex. PW29/B & Ex.

PW29/D.

170. PW23 categorically deposed that he then personally visited the given addresses. He went on to depose that the address of M/s Cosmic Computers & Peripherals was in existence but no such firm operated from said address which fact he verified from the occupants of said address.

171. With respect to M/s K.R.Golden Transport Corporation PW23 deposed that after visiting the area he found the building by name of Piaga Plaza which had numbers only from 701 to 704 and there was no Flat no. 780 in existence. He deposed that he had examined the postmen of the area and had recorded their statements, which he forwarded to IO alongwith the returned envelops.

C.C.No: 31 / 2011 Page No.102 of 188

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CC No.: 31 / 11.

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Dated : 16.10.2014.

172. Nothing material emanated out of cross examination of this witness as he was put only this suggestion that he had not posted any letters but had got the endorsement wrongly made from the postmen of the area by pressuring them. PW23 denied this suggestion and also denied that he had not visited the area himself.

173. The contention of Ld. Defence Counsels that PW23 had wrongly obtained endorsement on the envelops from the postmen without actually posting the same, is belied on bare perusal of the envelops Ex. PW29/B & Ex. PW29/D which bears the requisite stamps / seal of the postal authorities.

174. Further PW21 P.Nagesham, the postman of the concerned post office, deposed that the envelop Ex. PW29/D was received in Post office Bashir Bagh, Hyderabad and was entrusted to him for delivery. He deposed that he C.C.No: 31 / 2011 Page No.103 of 188 Judgement in the matter of:-

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Dated : 16.10.2014.

went to the given address and as no firm was found existing there, he made endorsement Ex. PW21/A on the envelop, in his own hands. PW21 also deposed that in the concerned locality Flat nos. 701 to 704 were existing and there was no flat bearing no. 780.

175. During his cross examination he denied the suggestion that he made endorsement Ex. PW21/A at instance of CBI. No suggestion whatsoever was given either to this witness or to PW23 that M/s Cosmic Computers & Peripherals and M/s K.R.Golden Transport Corporation were existing at the given addresses.

176. In view of this evidence which has come up on record, prosecution has been able to establish that no firms by the name of M/s Cosmic Computers & Peripherals or M/s K.R.Golden Transport Corporation were in existence or have operated from the premises addresses of which are on record. C.C.No: 31 / 2011 Page No.104 of 188

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Dated : 16.10.2014.

Rather the address itself of transporter mentioned in the G.R., is found to be false and nonexistent one.

177. Further from the cross examination of PW21 & PW23, I did not find any reason to doubt the version given on record by them during their examination in chief, that neither M/s Cosmic Computers & Peripherals nor M/s K.R.Golden Transport Corporation were in existence at the given addresses.

178. Apart from the evidence which as been led on record by prosecution, it is apparent from statement under section 313 Cr.P.C of accused Munish Yadav, who admittedly is the Proprietor of M/s M.S.Computers and Communications, the alleged consignee, that he had stated not to have taken any insurance cover for the consignment in question, nor transacted with the alleged consignor, ie. M/s Cosmic Computers and Peripherals. From the same, it is established on record that C.C.No: 31 / 2011 Page No.105 of 188 Judgement in the matter of:-

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there was no such consignment. Thus, the question of any loss to a Nonexistent consignment, does not arise.

179. The resultant inference is that neither any goods were sold by the alleged consignor to consignee / insured, nor the same were transported through M/s K.R.Golden Transport Corporation vide G.R. Ex. PW29/J. Meaning thereby, that the G.R. Ex. PW29/J is a false and bogus document, as no such transport firm was in existence at the given address.

180. In the backdrop of above, I shall consider the contentions advanced visavis the prosecution evidence accused wise.

 Case qua accused MUNISH YADAV:

181. While considering the case qua accused Munish Yadav, I shall refrain myself from making any C.C.No: 31 / 2011 Page No.106 of 188 Judgement in the matter of:-

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observation with respect to accused Rajpal Yadav (since expired), as proceedings qua him have already been abated.

182. Sh.Ravinder Chadha, Ld.Defence Counsel contended that once supplementary charge sheet was filed by the prosecution against Rajpal Yadav, the same amounts to exonerating / absolving accused Munish Yadav, who was named in the "initial charge sheet". He contended that therefore, no charge should have been framed against Munish Yadav at first instance, and as he has already undergone trial, he should be acquitted.

183. I do not find any merits in this contention of Ld.Defence Counsel. The supplementary charge sheet, as the name suggests supplements the initial charge sheet and is not filed on record to supplant, replace or overwrite the facts, alleged in the initial charge sheet.

C.C.No: 31 / 2011 Page No.107 of 188

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Dated : 16.10.2014.

184. Next contention of Ld.Defence Counsel was that prosecution has failed to bring on record any document to link accused Munish Yadav with the present transaction. He contended that right from the application seeking issuance of policy till collection of the cheque of the claim amount Ex.PW. 14/A, there is no document on record bearing signatures of Munish Yadav. Ld.Defence Counsel contended that all these documents bears signatures of Rajpal Yadav, who misused the name of firm of Munish Yadav.

185. The evidence which has come up on record belies this contention of Ld.Defence Counsel. No doubt, all the documents ie. Application Ex.PW.12/B seeking issuance of Marine Policy ; Letter to the consignor on behalf of the insured dated 02.01.1998 ; Claim Form Ex.PW.8/4 ; Letter of intimation of loss Ex.PW.8/5 ; Policy Ex.PW.8/D ; as well as the Voucher Ex.PW.8/A ; bears signatures of accused Rajpal C.C.No: 31 / 2011 Page No.108 of 188 Judgement in the matter of:-

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Dated : 16.10.2014.

Yadav (since expired). However, an important document ie.

Copy of GR vide which the consignment was purportedly transported by the alleged consignor "M/s Cosmic Computers and Peripherals" to M/s M.S.Computers & Communication, bears signatures of accused Munish Yadav. This GR as has been already held by me in Para179 (Supra) is a false and fake document, considering the fact that M/s K.R.Golden Transport Company was a nonexistent firm.

186. Ld.Defence Counsel in order to defend accused Munish Yadav had contended that this document was not on record at the time when the initial investigations were made by the Vigilance Department of the Company. He contended that the same was wrongly and falsely brought on record by the investigating officer in order to falsely implicate accused Munish Yadav in the present case.

187. I do not find any merits in this contention of C.C.No: 31 / 2011 Page No.109 of 188 Judgement in the matter of:-

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Dated : 16.10.2014.

Ld.Defence Counsel. It is apparent on perusal of the Claim Form Ex.PW.8/4 that the same was submitted with Insurance Company, as early as 10.02.1998 under signatures of Rajpal Yadav. The same depicts documents enclosed along with the Claim Form, wherein "Copy of GR is specifically mentioned.".

188. It is further contended by Ld.Defence Counsel that signatures of Munish Yadav on this GR Ex.PW.29/J were fraudulently obtained by the investigating officer while taking his specimen signatures during the course of investigations. Therefore, this document being forged by the investigating agency themselves, cannot be considered in evidence against accused Munish Yadav.

189. I do not find any merits in this contentions of Ld.Defence Counsels for 2 reasons. Firstly, on perusal of this document, it is apparent that the signatures of Manish Yadav are there as Proprietor of M/s M.S.Computers and C.C.No: 31 / 2011 Page No.110 of 188 Judgement in the matter of:-

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Communications. His signature on this document appears perfectly on the seal of his firm ie. M/s M.S.Computers and Communications, of which he is the Proprietor, as has been admitted by him during his statement u/s 313 Cr.P.C.

190. Had his signatures been fraudulently obtained by the IO during investigations as urged by Ld.Defence Counsel, then its placement with the seal of his firm should not have been such, as is there on this document. Further, no explanation has been furnished on behalf of the accused as to how seal of his firm also appears on this document alongside his signatures. Secondly, if signatures of accused Munish Yadav were obtained fraudulently by IO, then accused would have lodged a protest or complaint against the same, but that was not to be.

191. In view thereof, I do not find any merits in this contention of Ld.Defence Counsel, which appears to have C.C.No: 31 / 2011 Page No.111 of 188 Judgement in the matter of:-

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been raised as an afterthought.

192. Next limb of argument advanced by Ld.Defence Counsel was that merely on the basis of report given by the handwriting expert Ex.PW.27/X2, accused Munish Yadav cannot be fastened with any criminal liability. He contended that investigating officer during the course of investigations cannot obtain specimen signatures of accused without permission of the Court. He contended that deposition of IO ie. PW29 S.K.Kashyap is silent as to whether he had taken any permission from the Court before taking specimen signatures of accused Munish Yadav, therefore the same cannot be used for any purpose whatsoever, including for getting the same compared with questioned signatures.

193. He in order to substantiate this contention of his, had relied upon the law laid down by Hon'ble Apex Court in case titled "Sukvinder Singh vs. State of Punjab" C.C.No: 31 / 2011 Page No.112 of 188

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Dated : 16.10.2014.

reported as (1994) 55 SCC 152 and in another case titled "Sapan Haldar & Anr. vs. State" decided by Hon'ble High Court of Delhi in Crl.Appeal No.804/01 decided on 25.05.2002.

194. He contended relying upon these judgments that even the Court cannot order for giving specimen signatures to the accused during the course of investigations. Therefore, the reports of the expert PW27 i.e. Ex/PW.27/X2 and Ex.PW.27/X5 are not admissible and cannot be relied upon against accused Munish Yadav. Ld.Defence Counsel had contended that by asking for specimen signatures and obtaining them under compulsion, accused cannot be made a witness against himself.

195. I have perused the deposition of PW29 S.K.Kashyap including his cross examination conducted on behalf of accused Munish Yadav. It is apparent on perusal of same that PW29 during his examination in chief recorded on C.C.No: 31 / 2011 Page No.113 of 188 Judgement in the matter of:-

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29.05.2013 and his reexamination conducted by Ld.Public Prosecutor on 23.08.2013, had not stated to have taken permission from the Court for obtaining specimen signatures of accused Munish Yadav. However, that in itself, is not sufficient to accept the contention urged by Ld.Defence Counsel and to throw the expert opinion Ex.PW.27/X2 and Ex.PW.

27/X5, overboard.

196. I do not find any merits in this contention of Ld. Defence Counsel as merely by taking the specimen signatures of an accused person during the course of investigations, the Investigating officer can by no stretch of imagination be held as asking him to stand as a witness against himself. Scientifically it is established that the impression of finger prints and handwriting of any individual does have such intrinsic qualities which no one can willfully change. The use of specimen signatures / handwriting of a person becomes important for any C.C.No: 31 / 2011 Page No.114 of 188 Judgement in the matter of:-

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investigating agency to have it compared with the questioned signatures / handwriting just to corroborate the line of investigation which the investigating agency otherwise is carrying forward to unearth the truth in the case in hand.

197. The precedents relied upon by Ld. Defence Counsel in support of his contentions does not come to his rescue in view of the law laid down by Hon'ble Apex Court in Rabindra Kumar Pal @ Dara Singh Vs. Republic of India, reported as 2011 (2) SCC 490. This judgment delivered by Hon'ble Apex Court is the latest judgment on this aspect whereas the precedent relied upon by Ld. Defence Counsel in Sukhbir's Case (Supra) is of the year 1995.

198. In the other judgment relied upon by Ld. Defence Counsel of Hon'ble High Court of Delhi, the law laid down by Hon'ble Apex Court in Dara Singh's Case (Supra) was not considered as the said judgment was not quoted before C.C.No: 31 / 2011 Page No.115 of 188 Judgement in the matter of:-

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Hon'ble High Court, in Sapan Haldar's Case (supra).

199. In Dara Singh's Case Hon'ble Supreme Court of India had taken into consideration the 11Judge Bench decision in case titled "The State of Bombay Vs. Kathi Kalu Oghad & Ors." reported as AIR 1961 SC 1808. It is pertinent to reproduce the observation made by Hon'ble Apex Court in Dara Singh's case (Supra) which are as under: "Another question which we have to consider is whether the Police (CBI) had the power under the Cr.P.C. to take specimen signatures and writing of A3 for examination by the expert. It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen signatures on the asking of the police and only in the amendment of the Cr.P.C. In 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signatures for the purpose of investigation. Hence, it was pointed out that taking of his signatures / writings being per se illegal, the report of the expert cannot be used as evidence against him. To meet the above claim, learned Addl. Solicitor General heavily relied on a 11Judge Bench decision of this Court in The State of Bombay Vs. Kathi Kalu Oghad & Ors., (1962) 3 SCR 10 = AIR 1961 SC 1808. This larger Bench was constituted in order to re examine some of the propositions of law laid down by C.C.No: 31 / 2011 Page No.116 of 188 Judgement in the matter of:-

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this Court in the case of M.P. Sharma and Ors., Vs. Satish Chandra, District Magistrate, Delhi and Ors., (1954) SCR 1077. After adverting to various factual aspects, the larger Bench formulated the following questions for consideration : "2. ........... On these facts, the only questions of constitutional importance that this Bench has to determine are; (1) whether by the production of the specimen handwritings - Exs. 27, 28 and 29 - the accused could be said to have been 'a witness against himself' within the meaning of Article 20 (3) of the Constitution; and (2) whether the mere fact that when those specimen handwritings had been given, the accused person was in police custody could, by itself, amount to compulsion, apart from any other circumstances which could be urged as vitiating the consent of the accused in giving those specimen handwritings. .................

4. ................. The main question which arises for determination in this appeal is whether a direction given by a Court to an accused person present in Court to give his specimen writing and signature for the purpose of comparison under the provisions of section 73 of the Indian Evidence Act infringes the fundamental right enshrined in Article 20 (3) of the Constitution.

10. ............... Furnishing evidence" in the latter sense could not have been within the contemplation of the Constitutionmakers for the simple reason that - though they may have intended to protect an accused person from the hazards of selfincrimination, in the light of the English Law on the subject - they could not C.C.No: 31 / 2011 Page No.117 of 188 Judgement in the matter of:-

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have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. ...............

11. .............. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of a 'personal testimony' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness'.

12. .................. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither C.C.No: 31 / 2011 Page No.118 of 188 Judgement in the matter of:-

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oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony'.

16. In view of these considerations, we have come to the following conclusions :

1. An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.

2. The mere questioning of an accused person by a policy officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.

3. 'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt innocence of the accused.

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4. Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness'.

5. 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.

6. 'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court.

Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.

7. To bring the statement in question within the prohibition of Article 20 (3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made." In view of the above principles, the procedure adopted by the investigating agency, analyzed and approved by the trial Court and confirmed by the High Court, cannot be faulted with." C.C.No: 31 / 2011 Page No.120 of 188

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200. Having regards to the above observations made by Hon'ble Apex Court, more particularly the one mentioned in subpara (4) of the proceeding para, it is apparent that the Investigating officer during the course of investigations can obtain specimen signatures of an accused for the purposes of comparing it with the questioned signatures. By doing that, a person cannot be said to stand as a witness against himself.

201. In the present case, it is apparent from the prosecution evidence led on record more particularly in view of the deposition of PW29, that specimen signatures and handwriting of accused Munish Yadav were obtained by the Investigating officer which accused had voluntarily given.

There was no suggestion from the accused to PW29 S.K.Kashyap, that he was forced by him being Investigating Officer to give specimen handwriting and signatures. C.C.No: 31 / 2011 Page No.121 of 188

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202. The Investigating officer PW29 S.K.Kashyap also during the course of his deposition recorded on 23.08.2014 had stated that accused Munish Yadav, in presence of independent witness, has given his specimen signatures and handwriting Ex.PW.27/G. This leaves me with no ground to doubt that specimen signatures of the accused were obtained from him under any pressure, threat or duress.

203. Ld.Defence Counsel in order to challenge the authenticity of specimen signatures and handwriting of accused Munish Yadav Ex.PW.27/G, had contended that the independent witness in whose presence IO has claimed to have taken signatures, had put the date to be "27.11.2001" whereas IO himself under his signatures had put the date to be "28.11.2001", therefore the same creates a doubt regarding its authenticity.

204. Although the averment made by Ld.Defence C.C.No: 31 / 2011 Page No.122 of 188 Judgement in the matter of:-

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Counsel seems to have some force as in Ex.PW.27/G, there is a discrepancy with respect to the date put by independent witness under his signatures and the one which has been put by the Investigating Officer under his signatures. But, this discrepancy is too trivial to be given an undue importance so as to discard PW27/G (sheets of specimen signatures and handwriting). More particularly, in view of the fact that nothing was put on behalf of accused Munish Yadav to PW29 during the course of his cross examination on this aspect. No suggestion whatsoever was given to the investigating officer PW29 that these specimen signatures and handwriting were not obtained in presence of independent witness.

205. This contention of Ld.Defence Counsel further falls, in view of the fact that even during the course of his statement u/s 313 Cr.P.C, accused Munish Yadav when put, that he had given his specimen signatures and handwriting Ex.PW.27/G to the IO in presence of independent witness, C.C.No: 31 / 2011 Page No.123 of 188 Judgement in the matter of:-

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admitted the same. Even at that time, accused had not claimed that the same were forcibly taken by the IO or were not taken in presence of the independent witness.

206. Nothing material has emanated out of cross examination of PW27 Mohinder Singh, the expert witness, to doubt the reasons given by him to arrive at his reports Ex.

PW27/X2 & Ex. PW27/X5. Mere denial of these reports on the part of accused that too during the course of arguments is not sufficient to discard the same. More particularly when on bare perusal of the specimen signatures of accused Munish Yadav on Ex. PW27/G (S133 to S155) and comparing it with the signatures appearing on G.R. Ex.PW.29/J, the similarities between the two are so apparent which leads to the only inference that it was him, who had signed copy of the said G.R., which as per the Claim Form Ex.PW.8/A as held by me hereinbefore, was submitted with Insurance Company for the purposes of processing of claim on 10.02.1998. C.C.No: 31 / 2011 Page No.124 of 188

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207. In view thereof, I do not find any merits in this contention of Ld.Defence Counsel.

208. This has brought me down to the last contention urged by Sh.Ravinder Chadha, Advocate that no pecuniary advantage was caused to accused Munish Yadav, from this transaction. He contended relying upon the Statement of accused recorded u/s 313 Cr.P.C ; Deposition of Munish Yadav recorded u/s 315 Cr.P.C as DW3 ; Deposition of DW4 Sh.Kartar Singh Yadav and ; Deposition of DW6 Sh.K.L.Soin, that accused Rajpal Yadav after collecting the claim amount from the Insurance Company had deposited the same in the account of Munish Yadav without his knowledge.

He contended that Munish Yadav, at insistence of his father DW4 and uncle of Rajpal Yadav DW6, had returned the amount so deposited in his bank account to Rajpal Yadav. He contended that at that time, Munish Yadav was not aware that C.C.No: 31 / 2011 Page No.125 of 188 Judgement in the matter of:-

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this amount was fraudulent amount which came from National Insurance Company Limited.

209. I have considered the submissions advanced by Ld.Defence Counsel and have perused the deposition of DW3 Munish Yadav, DW4 Sh.Kartar Singh Yadav and DW6 Sh.K.L.Soin. I have also perused the documents which were submitted with National Insurance Company, for the purposes of issuance of "Marine Insurance policy" and other supporting documents.

210. It is apparent on perusal of these documents that the same were on the letter head of M/s M.S.Computers and Communications, which admittedly was owned by accused Munish Yadav. Further, these letter heads bear the address of 397 Masjid Mod, which address was also admitted by Munish Yadav to be his. Although it is claimed by accused Munish Yadav, that he on request of Rajpal Yadav had permitted him C.C.No: 31 / 2011 Page No.126 of 188 Judgement in the matter of:-

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to use his premises for doing his own business, but no explanation whatsoever has been given by accused Munish Yadav as to how the letter heads of his firm came in possession of Rajpal Yadav.

211. PW10 Dinesh Kumar Parashar, Deputy Manager from Punjab National Bank and PW6 Vinod Kumar Chopra, Manager, Punjab National Bank and PW26 K.B.Ralhan, Senior Manager from Punjab National Bank had appeared and placed and proved on record the documents relevant to the present case, maintained by their bank during the regular course of its business. These witnesses have categorically proved on record, the account opening form vide which Munish Yadav as Proprietor of M/s M.S.Computers and Communications, had opened a Current Account No.4007 with them as Ex.PW.6/A and Certified copy of statement of said account has been proved on record as Ex.PW.10/B4. The factum of having this bank account is not disputed by accused C.C.No: 31 / 2011 Page No.127 of 188 Judgement in the matter of:-

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Munish Yadav.

212. Statement of account Ex.PW.10/B4 further proves on record the deposit of the cheque of the Claim Amount Ex.PW.14/A in this account, wherein there is a Credit Entry of Rs.2,32,000/ at Point X.

213. Once prosecution has been able to establish that the Credit Proceeds of this Claim came in the account of accused Munish Yadav, it was for him to explain as to how the said cheque was deposited in this account of his.

214. No doubt, accused Munish Yadav through his deposition as DW3 had stated that Rajpal Yadav without his knowledge had deposited this cheque in his account. This explanation however is not plausible and trustworthy. It is apparent from the deposition of DW3 and DW4 that accused C.C.No: 31 / 2011 Page No.128 of 188 Judgement in the matter of:-

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Munish Yadav claimed that he carried on the operation of his firm ie. M/s M.S.Computers and Communications till the year 1996, whereafter he stopped the operations of this firm of his.

He further deposed which has also been seconded by DW4, his father, that Rajpal Yadav came to him only in the year 1997 and on his request, Munish Yadav permitted him to use his premises at Masjid Mod. In case, this deposition of DW3 and DW4 is accepted then, by no stretch of imagination it can be inferred that Rajpal Yadav would have got the letter heads of M/s M.S.Computers and Communication at the fag end of the year 1997 and beginning of 1998 and would have known the bank account number of the Proprietorship concern of accused Munish Yadav and also the fact that the said account is still in operation when as claimed by Munish Yadav, he stopped all his dealings of M/s M.S.Computers and Communications in the year 1996 itself.

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215. Another facet of arguments advanced on behalf of accused Munish Yadav in order to shift his criminal liability on accused Rajpal Yadav, who has since expired, was that the entire proceeds of this cheque Ex.PW.14/A, was given by him to Rajpal Yadav at instance of his father on whom pressure was exerted by his senior officers and also on request of DW6 Sh.K.L.Soin.

216. I do not find any merits in this contention either, as on perusal of deposition of DW3 ; DW4 and DW6; it is apparent that Munish Yadav had claimed that Rajpal Yadav informed him about deposit of the cheque Ex.PW.14/A on the pretext of getting the payment from some of his client, in account of Munish Yadav, without his knowledge. He further deposed and claimed that Rajpal Yadav requested him to withdraw the said amount and hand it over to him (Rajpal Yadav), to which he (Munish Yadav) objected and refused on the ground as to why Rajpal Yadav did so.

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217. Munish Yadav as DW3 stated that subsequently on request of his father DW4, who was pressurized by his senior officers, exerted on behalf of Rajpal Yadav, and insistence of DW6 Sh.K.L.Soin, who visited their house, had released this amount to Rajpal Yadav by way of two cheques.

218. Perusal of statement of account Ex.PW.10/B4 of M/s M.S.Computers and Communications belies this theory sought to be put forth on behalf of accused Munish Yadav, to shift the entire liability on accused Rajpal Yadav, who has since expired.

219. It is apparent that the cheque of the claim amount was credited in the account of accused Munish Yadav on 28.05.1998 and there are 2 Debit Entries immediately on the next date ie. 29.05.1998 amounting to Rs.1,44,000/ and Rs.

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Yadav is accepted, then to my mind Rajpal Yadav at best would have informed him only on 28.05.1998 when the proceeds of the cheque Ex.PW.14/A were credited in his account and as per his story, he (Munish Yadav) would have refused to pay him (Rajpal Yadav) back. Rajpal Yadav would have taken sometime to approach the senior officers of father of accused Munish Yadav so as to exert pressure on him, as has been claimed by DW3 Munish Yadav himself and DW4 Father of Munish Yadav.

220. Further, Rajpal Yadav would have taken atleast 1 or 2 days to approach DW6 and to take him to the house of Munish Yadav, so as to request his father and Munish Yadav for getting the amount of said cheque released. But that was not to be.

221. The documentary evidence in the form of statement of account Ex.PW.10/B4 reveals otherwise. It is C.C.No: 31 / 2011 Page No.132 of 188 Judgement in the matter of:-

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evident from this evidence that the booty which was credited in the account of M/s M.S.Computers and Communications on 28.05.1998 was immediately released through 2 cheques on the following day itself. Meaning thereby that the said two cheques vide which money was withdrawn from this account of Munish Yadav must have been issued immediately after credit of the amount of the claim.

222. Even otherwise, if the story putforth on behalf of accused Munish Yadav is accepted, it is apparent that out of the total proceeds of the cheque Ex.PW.14/A ie. Rs.

2,32,000/, only a sum of Rs.1,74,000/ was got released through 2 cheques and the remaining amount remained with accused Munish Yadav. Thus, this contention of Ld.Defence Counsel that no pecuniary advantage was caused to accused Munish Yadav, is devoid of any merits. The same stands rejected accordingly.

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223. In view of above, it is clearly evident that accused Munish Yadav was aware of each and every step and was benefited out of the claim proceeds which came from National Insurance Company on the basis of the claim lodged for and on behalf of M/s M.S.Computers and Communications.

The said claim being on the basis of false and forged documents which were submitted by the insured with NIC knowing or having reasons to believe the same to be forged ones.

224. Sh.Ravinder Chadha, Advocate, Ld.Defence Counsel for accused Munish Yadav had contended that there is no evidence on record that it was his client who had forged Ex.PW.29/J, the copy of GR of M/s K.R.Golden Transport Corporation.

225. I do find substance in this contention of Ld.Defence Counsel. Although as held by me hereinabove that copy of GR Ex.PW.29/J is a forged document which was C.C.No: 31 / 2011 Page No.134 of 188 Judgement in the matter of:-

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submitted by accused Munish Yadav with NIC, but there is no evidence on record put forth by prosecution, that it was accused Munish Yadav who had forged the same. Thus, the prosecution evidence falls short of proving the offences under section 468 IPC qua accused Munish Yadav.

226. Prosecution however has been able to establish that accused Munish Yadav was member of the conspiracy. Further, he had submitted a copy of a fake / forged GR Ex.PW.29/J knowing or having reasons to believe the same to be forged one and used it as genuine for getting a claim and cheated NIC by causing wrongful gain to himself and wrongful loss to NIC.

 Case qua accused P.C.MOHAN :

227. Prosecution case as per the evidence which has come up on record is that pursuant to letter from insured Ex. PW8/5, accused V.P.Pandhi had appointed M/s Railway Claims C.C.No: 31 / 2011 Page No.135 of 188 Judgement in the matter of:-

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settlers as 'tracers' in this case, vide his endorsement at point 'B' on Ex. PW8/5. This fact has been proved on record by PW12 Gopa Sahu and this fact is not disputed by accused V.P.Pandhi.

228. The claim file contains the "tracers report" Ex. PW24/A dated 16.03.1998.

229. Although accused P.C.Mohan in his defence has stated that the report Ex. PW24/A was not submitted by him with NIC, but the version which through deposition of prosecution witnesses has come up on record, leads me to infer otherwise.

230. Prosecution had examined one Jitender Tripathi, who was earlier working with accused P.C.Mohan as PW24. The factum of his working with him is admitted by accused P.C.Mohan in his statement under section 313 Cr.PC C.C.No: 31 / 2011 Page No.136 of 188 Judgement in the matter of:-

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as well as through the defence witness examined by him i.e. DW1 Ms. Radha Mohan Sharma.

231. PW24 during the course of his deposition had stated that having worked with accused P.C.Mohan he is conversant with writing and signatures of P.C.Mohan. He deposed that the words "Confidential" and "Without Prejudice"

at points X1 & X2 were written on Ex. PW24/A by accused P.C.Mohan as the same are in his handwriting. He further deposed that the details of expenses incurred on survey / tracing i.e. Ex. PW24/B are also in the handwriting of accused P.C.Mohan.

232. This fact is not disputed by accused P.C.Mohan as nothing has been put on his behalf to PW24 during cross examination that writing at points X1 & X2 on Ex. PW24/A as well as on Ex. PW24/B are not of accused P.C.Mohan. Rather during cross examination of IO PW29 S.K.Kashyap, a C.C.No: 31 / 2011 Page No.137 of 188 Judgement in the matter of:-

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suggestion was given on behalf of accused P.C.Mohan that the second and third page of Ex. PW24/A were subsequently changed which was denied by the witness. Meaning thereby that accused P.C.Mohan had admitted his writing on Ex.

PW24/A as well as Ex. PW24/B.

233. Another suggestion given by accused P.C.Mohan to PW3 A.K.Seth during his cross examination that by submitting a report with the insurance company, no rules have been violated, leads to the conclusion that it was he who had submitted the report Ex. PW24/A dated 16.03.1998. Had it been not him, then there was no occasion with him to write and prepare the document Ex. PW24/B giving details of expenses incurred on survey / tracing, which admittedly is in his handwriting. Further there was no occasion with him to submit bill Ex. PW29/L for survey / tracing, with the company.

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234. Although he, by leading defence evidence through his wife DW1 had tried to put forth that it was his ex employee PW24 who probably got this report filed, but that attempt of his appears to me, to be an afterthought. Had there been any semblance in the same, he would have cross examined PW24 on this aspect. But that was not to be.

235. Further the contention of accused P.C.Mohan that page numbers 2 & 3 of report Ex. PW24/A were changed subsequently does not seems to be plausible. Bare perusal of the three pages of Ex. PW24/A reveals that the same are written using same typewriter and at one point of time. Further the suggestion which accused had given to IO PW29, that these two pages were changed before the file was handed over to him, was neither given to PW3 A.K.Seth nor to PW4 & PW6 who were members of the Vigilance team of NIC during the course of their cross examination.

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236. The report Ex. PW24/A and the bill Ex. PW29/L are on the letter heads of M/s Railway Claims Settlers of which accused P.C.Mohan is the Proprietor which fact has been proved on record by PW25 Harsharan witness from Canara Bank, Shankar Nagar where P.C.Mohan had opened an account in the name of his firm as its Proprietor vide account opening form Ex. PW25/A and Ex. PW25/C.

237. No explanation has been adduced on record by accused P.C.Mohan as to how his letter heads were used in report Ex. PW24/A and bill Ex. PW29/L, if it was not him who filed the same with NIC.

238. In view of above evidence which has come up on record, it is evident that it was accused P.C.Mohan who had filed report Ex. PW24/A alongwith Ex. PW24/B and bill Ex. PW29/L with NIC.

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239. In the report Ex. PW24/A, which is on the letter head of M/s Railway Claim Settlers it is stated that their representative for tracing the consignment left for Hyderabad and went to office of carrier at Bashir Bagh and met one Mr. Ramaiya who confirmed that the said consignment was despatched from Hyderabad and was detained at Agra for want of Form No. 35. It is further stated that due to efforts of their representative and carrier, consignment was despatched to Delhi and out of 12 boxes 10 were delivered to consignee and two cases were short for which carrier agreed to issue shortage certificate either to consignee or consignor. It is stated in the report Ex. PW24/A that loss has resulted due to nondelivery of 2 boxes of consignment and the insurer may settle the claim with the insured by paying claim to the extent of Rs.2,32,000/.

240. Considering the facts already proved that neither the consignor nor the transporter were in existence, thus there was no question of any consignment being C.C.No: 31 / 2011 Page No.141 of 188 Judgement in the matter of:-

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transported from Hyderabad to Delhi for which marine insurance vide policy Ex. PW8/DA was taken, therefore, the facts averred in the report Ex. PW24/A are palpably false.

241. As per Ex. PW24/B submitted alongwith the report representative of accused P.C.Mohan left Delhi for Hyderabad on 16.02.1998. If the facts stated in the report Ex. PW24/A are taken to be correct, he would have met the representative of carrier only after 16.02.1998 when on being asked for "shortage certificate" carrier agreed to issue the same to either the consignee or the consignor. Meaning thereby that by 16.02.1998 no "Shortage Certificate" was issued by the carrier. Thus, the claim form Ex. PW8/4 submitted with the Insurance company and received by accused G.C.Gupta vide his endorsement at point 'A' on Ex. PW8/4 dated 10.02.1998 by no stretch of imagination could have "shortage carrier certificate"

enclosed with it. However, the said claim form dated 10.02.1998 depicts the same to be there, enclosed with it.

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242. This further fortifies that the report Ex. PW24/A is a false report, submitted by accused P.C.Mohan. Had he not been in concert with the coconspirators, there was no need for him to do so. He did that to perform his part of the conspiracy.

243. The empanelled tracer / surveyor of the Insurance Company is under a solemn duty to submit a true and actual report to the Insurance Company knowing fully well that it is on the basis of his report that the Insurance Company shall act for processing the claim lodged with it and thus this report can be considered as a valuable security.

244. In view of above, the argument raised by accused P.C.Mohan that the report of tracer / surveyor is not binding and Insurance Company need not rely on the same for settling a claim, to my mind is devoid of any logic and merits C.C.No: 31 / 2011 Page No.143 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

and thus it cannot be accepted.

245. If such a proposition is accepted then the same shall lead to hazardous results. The empanelled surveyor / tracer would start giving reports sitting in the confines and comfort of their respective offices and claiming their fees without lending any concrete support to the Insurance Company for disposal of claims lodged with it. The tracer / surveyor are supposed to act in a bonafide manner while performing their assigned roles.

246. This has led me to the next contention urged by accused P.C.Mohan on legal aspect. He contended that if the report Ex. PW24/A is considered to have been given by him, then the same does not fall within the ambit of the definition "False document" as defined in Section 464 of I.P.C., so no case for offence under section 468 IPC is made out against him, with which he has been charged. C.C.No: 31 / 2011 Page No.144 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

247. For the purposes of appreciating this contention of accused P.C.Mohan, it is pertinent to peruse section 468, 463 & 464 of Indian Penal Code which are reproduced as under : SECTION 468 I.P.C. : Forgery for purpose of cheating Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

SECTION 463 I.P.C. : Forgery Whoever commits forgery, makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.

C.C.No: 31 / 2011 Page No.145 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

SECTION - 464 I.P.C : Making a false document A person is said to make a false document or false electronic record First Who dishonestly or fraudulently

(a) makes, signs, seals or executes a document or part of a document;

(b) makes or transmits any electronic record or part of any electronic record;

(c) affixes any electronic signature on any electronic record;

(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of a document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of C.C.No: 31 / 2011 Page No.146 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

such alteration; or Thirdly Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.

248. Relying upon this definition of "Making false document", the accused P.C.Mohan had contended that it was not the case of the prosecution that he made this document i.e. report Ex. PW24/A with intention of causing it to be believed that this document was made by the authority of a person by whom or by whose authority accused / tracer knew that it was not made and therefore document i.e. survey / tracing report did not amount to forgery.

249. It is true that on the face of it document i.e. C.C.No: 31 / 2011 Page No.147 of 188 Judgement in the matter of:-

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

survey / tracing report is not made by the accused / surveyor with the intention of causing it to be believed that the he had made the document with or by the authority of some other person and as such, it appears that accused / surveyor have a strong case in his favour.

250. However, there is another angle to this argument and according to the learned Public Prosecutor Illustration (h) of Section 464 and Explanation 1 coupled with Illustration (e) thereof, squarely and directly bring the case within the ambit of Section 463 and 464 of Indian Penal Code.

251. I have considered the rival submissions and have perused all the illustrations appended to Section 464 IPC. C.C.No: 31 / 2011 Page No.148 of 188

Judgement in the matter of:-

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

252. It is relevant to peruse illustration (h) and (e), as well as Explanation 1 appended to section 464 IPC, the same is delineated as under : Illustration (h) : "(h) A sells and conveys an estate to Z. A afterwards, in order to defraud Z of his estate, executes a conveyance of the same estate to B, dated six months earlier than the date of the conveyance to Z, intending it to be believed that he had conveyed the estate to B before he conveyed it to Z. A has committed forgery."

Explanation 1. A man's signature of his own name may amount to forgery.

Illustration (e) is as under : "(e) A draws a bill of exchange on himself in the name of B without B's authority, intending to discount it as a genuine bill with a banker and intending to take up the bill on its maturity. Here, as A draws the bill with intent to deceive the banker by leading him to suppose that he had security of B, and thereby to discount the bill, A is guilty of forgery."

C.C.No: 31 / 2011 Page No.149 of 188

Judgement in the matter of:-

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

253. It is evident from Illustration (h) that "A" in order to defraud "Z" executed a conveyance of the same estate to "B" which was antidated by six months from the date of conveyance in favour of "Z" and this was done by "A" intending it to be believed that he had conveyed the estate to "B" before he conveyed it to "Z" and this has been held to be forgery, as intended by the Legislature.

254. From this Illustration, it is clear that a man can be said to have committed "forgery of document" even if he himself, is the author and signatory of the document. This Illustration does not require that he should sign a document making it to be believed that somebody else has signed the same or that he was authorized to sign the same on somebody else's behalf.

C.C.No: 31 / 2011 Page No.150 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

255. Explanation 1 makes it further clear that the man's signature in his own name may amount to forgery and from Illustration (e) thereof, it is clear that writing a promissory note by "A" in the circumstances given in the Illustration is considered as an act of forgery under the first head of the definition given in section 464 of I.P.C.

256. From these two Illustrations (h) and (e) and Explanation 1, it is clear that legislature intended to cover such cases, under the offence of forgery whenever the person, who had created a document even though the document was made by himself, in his own name and signed in his own name. These two illustrations coupled with Explanation 1, therefore, make the scope of the definition "Making a false document" very wide.

257. In view thereof, I do not find any merits in this argument of accused P.C.Mohan that the survey / tracing C.C.No: 31 / 2011 Page No.151 of 188 Judgement in the matter of:-

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

report does not fall under the definition of forgery. This contention of his is accordingly turned down.

258. Prosecution thus has been able to establish that accused P.C.Mohan was one of the coconspirators, and in order to perform his assigned role in the conspiracy, had forged the report Ex.PW.24/A, with intention to induce NIC to pass the claim in favor of M/s M.S.Computers and Communications.

                                  Case   qua   accused   ARVIND   KUMAR  

                                  SHARMA:

259. As per the deposition of PW3 A.K.Seth, PW8 Madan Lal Meena and PW12 Gopa Sahu M/s Pooja International was appointed as recovery agent. In view of deposition of PW8 & PW12 coupled with receipt dated 29.05.1998 the documents were collected by representative of M/s Pooja International for having the recovery affected from the transporter / carrier. Further as per receipt dated C.C.No: 31 / 2011 Page No.152 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

10.09.1998 Ex. PW8/D1 M/s Pooja International had affected a recovery of Rs.16,000/ from the transporter which was accepted by accused G.C.Gupta vide his endorsement dated 16.09.1998.

260. As per the prosecution case, M/s Pooja International is the Proprietorship concern of accused Arvind Kumar Sharma and accused K.V.Juneja was an employee of Arvind Kumar Sharma who collected the documents for getting the recovery affected from the transporter.

261. The factum that accused Arvind Kumar Sharma is Proprietor of M/s Pooja International is admitted by him during his statement under section 313 Cr.PC. He also admitted the fact that his firm was appointed as Recovery Agent in the present case.

C.C.No: 31 / 2011 Page No.153 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

262. The factum of deposit of Recovery Amount of Rs.16,000/ by M/s Pooja International with NIC is proved on record through receipt Ex. PW8/D1 of M/s Pooja International and corresponding deposit receipt of M/s National Insurance Company Ex. PW29/K which are at page nos. 25 & 4 of the claim file Ex. PW3/2.

263. Prosecution through deposition of PW19 Sh.

Brijesh Kumar Sharma of State Bank of Bikaner and Jaipur has proved on record that the Banker's cheque no. 808339 Ex. PW19/D was got prepared from their bank against application form Ex. PW19/C and paid vide cheque Ex. PW19/B.

264. Further prosecution through deposition of PW20 Sh.P.K.Aggarwal & PW28 Inspector B.M.Pandit proved that during investigations specimen signatures of accused Arvind Kumar Sharma were taken which he had voluntarily given. This fact was also not disputed by accused when C.C.No: 31 / 2011 Page No.154 of 188 Judgement in the matter of:-

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

confronted during his statement under Section 313 Cr.PC, nor he cross examined PW20 & PW28 on this aspect.

265. Further, through deposition of IO PW30 R.P.Kaushal coupled with deposition of PW27 Mohinder Singh, the Government Examiner and his reports Ex. PW27/X2 & PW27/X5 it has been proved on record that this Banker's cheque of recovery amount was got prepared by accused Arvind Kumar Sharma, which he deposited with the Insurance Company. Meaning thereby that the Banker's cheque of recovery amount favouring the Insurance Company did not come from the transporter / carrier from whom it should have come.

266. In order to defend accused Arvind Kumar Sharma, Sh. R.K.Kohli, Advocate had contended that this is a regular practice that the recovery agents used to negotiate with the carrier on behalf of the Insurance Companies for more C.C.No: 31 / 2011 Page No.155 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

than one case simultaneously and after getting a consolidated recovery affected, they used to deposit the same proportionately with the Insurance Companies from their own accounts.

267. No doubt, Ld. Defence Counsel had put such suggestion to the prosecution witnesses more particularly to PW12 Gopa Sahu and Investigating Officers i.e. PW29 & PW30, but none of them admitted that any such rule or procedure was in existence or practice. Nor any such rule or policy was brought on record by Ld. Defence Counsel to confront the prosecution witnesses or to prove in defence evidence. Rather PW3 A.K.Seth specifically stated during his cross examination that recovery should come from the transporter.

268. The contention sought to be raised by Ld. Defence Counsel seems to be preposterous. Had any such practice or policy in existence or prevalence the same would C.C.No: 31 / 2011 Page No.156 of 188 Judgement in the matter of:-

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

have led to bizarre results and propositions. It would have been the absolute discretion of the recovery agents in such eventuality to decide firstly that what should be the "consolidated amount" which they would accept from the transporter / carrier while negotiating more than one case of a single Insurance Company or the cases of different Insurance Companies. Secondly, how and who shall decide as to how much from this "consolidated recovery" is to be deposited in separate cases.

269. In view thereof, I do not find any merits in this contention of Ld. Defence Counsel. The recovery, if any, had to come from transporter / carrier straight in the name of the Insurance Company. Recovery Agent acts as no more than a facilitator or mediator between the Insurance Company and the carrier against his remuneration i.e. Recovery Fee, which he gets from the Insurance Company.

C.C.No: 31 / 2011 Page No.157 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

270. In the present case, as held by me hereinbefore that M/s K.R.Golden Transport Corporation, was not in existence at the given address, thus there was no occasion with the recovery agent, to negotiate with a nonexistent entity and to have the recovery affected from thin air.

271. This act / conduct on the part of Arvind Kumar Sharma leads to only one inference that whatever he had done the same is owing to the nexus he had with the insured. Had that been not so, then he could have very well submitted a report with the Insurance Company stating actual facts that no recovery could be affected as no such transporter was in existence. But that was not to be. As he had to perform his role in the larger conspiracy. His act of doing so, in terms of Section 10 of Evidence Act makes it explicit that he was part of the conspiracy.

C.C.No: 31 / 2011 Page No.158 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

272. His nexus with coaccused Raj Pal Yadav (since expired) who as per material on record had signed and submitted most of the documents in the claim file Ex. PW3/2 in support of the claim form Ex. PW8/4 is further fortified by the prosecution through deposition of PW18 Sh.S.N.Chaudhary from Oriental Bank of Commerce. This witness has proved on record that accused Raj Pal Yadav as Proprietor of M/s Mark Computers had opened a bank account with them vide account opening form Ex. PW18/C, which was introduced by M/s Pooja International owned by accused Arvind Kumar Sharma.

273. This has brought me down to the last contention urged by Sh.R.K.Kohli, Ld. Advocate in defence of accused Arvind Kumar Sharma. It is submitted by Ld. Defence Counsel relying on cross examination of prosecution witnesses conducted by him, that recovery agent is appointed once the claim is settled and approved by the insurance company. He C.C.No: 31 / 2011 Page No.159 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

contended that if at all there was any conspiracy, then the object of same was to get the claim amount released and the moment when the said object is achieved, the conspiracy stands accomplished and terminates. He contended that the acts and actions of Arvind Kumar Sharma as recovery agent were subsequent actions therefore, the same cannot be linked with conspiracy.

274. This contention of Ld. Defence Counsel though has some merits but the same are not sufficient to take the acts and actions of recovery agent outside the scope and purview of the claim, which once registered does not culminates on its release by the Insurance Company to the claimant / insured. The claim file remains alive till the Insurance Company settles its dues with the transporter / carrier. This fact is evident as the receipt of recovery agent Ex. PW8/D1 and the voucher Ex. PW29/K vide which recovery amount was deposited, were part of the claim file Ex. PW3/2. C.C.No: 31 / 2011 Page No.160 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

275. Further the conspiracy as emanating from the physical manifestations of its different players as is being proved on record by the prosecution was not to culminate at the release of claim amount. It was also the object of it that the claim file once for all is closed by the Insurance Company after accepting whatever little amount which is deposited with it, in the name of recovery.

276. Had that not been the object and had accused Arvind Kumar Sharma acted in a bonafide manner as recovery agent, then he after trying to locate the transporter, who as held by me hereinabove was nonexistent, could have reported to the Insurance Company that no recovery could be affected. There was no other reason but for one, with him to have paid Rs.16,000/ to the Insurance Company from his own account. That one and only reason is obvious which is his nexus with the claimant / insured. This conduct of accused Arvind Kumar C.C.No: 31 / 2011 Page No.161 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

Sharma has forced me to turn down this contention of Ld. Defence Counsel.

277. Prosecution thus has been able to establish on record, that accused Arvind Kumar Sharma being party to the conspiracy, had performed his assigned role and cheated the Insurance Company by inducing it to believe that transporter was in existence, by depositing the recovery amount claiming the same has been recovered by him from the alleged transporter.

 Case qua accused K.V.JUNEJA:

278. It is contended by Ld.Public Prosecutor that accused K.V.Juneja vide receipt dated 29.05.1998 which is at Page No.24 of the Claim File Ex.PW.3/2 had collected the documents on behalf of M/s Pooja International from National Insurance Company. He tried to establish that signatures on this acknowledgment receipt are of K.V.Juneja, on the basis of C.C.No: 31 / 2011 Page No.162 of 188 Judgement in the matter of:-

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

the report of handwriting expert Ex.PW.27/X2 and Ex.PW.

27/X5.

279. On the other hand, Sh.R.K.Kohli, Ld.Defence Counsel contended that apart from receiving documents on behalf of M/s Pooja International, nothing else was done by this accused to connect him with others.

280. No doubt, from the deposition of IO PW30 R.P.Kaushal and PW35 B.S.Kanojia, the independent witness, prosecution had established that specimen signatures of K.V.Juneja were taken. The same were examined by the expert witness PW27 Mohinder Singh visavis the questioned signatures on the receipt at Page No.24 of file Ex.PW.3/2. The same as per the report of expert Ex.PW.27/X2 are attributed to K.V.Juneja. However, this evidence of prosecution is superfluous as accused K.V.Juneja had not disputed his signatures on this receipt. He has admitted having received C.C.No: 31 / 2011 Page No.163 of 188 Judgement in the matter of:-

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Dated : 16.10.2014.

the documents from insurance company on behalf of M/s Pooja International.

281. However, as per cross examination of PW3, PW4 and PW6 conducted by Sh.R.K.Kohli, Advocate, merely the appointment of recovery agent is not illegal and once appointed, documents are also handed over to the recovery agent or his representative. Thus, merely because K.V.Juneja had collected the documents on behalf of M/s Pooja International, he has not committed any illegality.

282. Apart from that, nothing else is attributed against this accused by any of the prosecution witness. In view thereof, I do find force in the contentions of Sh.R.K.Kohli, Advocate, Ld.Defence Counsel for accused K.V.Juneja that he had not done any act to cheat the insurance company or any overt act in furtherance of any conspiracy. No act or action is attributed by the prosecution evidence, which has come up on C.C.No: 31 / 2011 Page No.164 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

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Dated : 16.10.2014.

record to connect accused K.V.Juneja with other accused persons, as coconspirator.

 Case qua accused G.C.GUPTA and V.P.PANDHI, the Public Servants:

283. Ld. Defence Counsels defending the public servants had vociferously contended that whatever they have done in the present claim, the same was in discharge of their official duties. Ld.Defence Cousnels relying on the deposition of prosecution witnesses, more particularly, the cross examination conducted by them of PW3 ; PW4; PW6; PW11 and PW12 had contended that appointing a surveyor / tracer after receipt of intimation of loss of consignment is no illegality.

It is further stated that it is not an illegality to receive any letter or Dak (post) by the accused persons and taking action on it.

C.C.No: 31 / 2011 Page No.165 of 188

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

284. It is further submitted that whatever they have done the same was on the basis of processing and recommendations of subordinate officers, on which they had no reasons to doubt. Sh.Ramesh Gupta, Ld.Senior Counsel further contended that there is no evidence on record to impute that at any point of time, the public servants had met the claimant / insured, either before or during the processing of claim or after passing of it.

285. No doubt, the entire prosecution evidence does not anywhere states that the claimant / insured had met the accused persons. But that in itself is not and cannot be a ground to absolve the accused persons. As with respect to the offence of conspiracy, hardly one gets such direct evidence. It is from the act or actions and physical manifestation of the parties, that one has to infer as to whether they were acting in concert with a particular object to achieve.

C.C.No: 31 / 2011 Page No.166 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

286. The mode and manner in which the accused public servants had acted, in the present claim case has to be seen from the available documents in the file Ex.PW.3/2.

287. As per deposition of PW12 Gopa Sahu, the first undated letter Ex.PW.12/B from M/s M.S.Computers and Communications was received by accused G.C.Gupta on 04.12.1997. Accused G.C.Gupta himself had calculated premium on that letter on the basis of which, cash premium of Rs.3588/ was deposited and policy Ex.PW.8/DA was issued.

288. Perusal of Ex.PW.12/B reveals that though it mentions about a cheque of premium to be enclosed with it, however, accused G.C.Gupta does not mention anything about this cheque and let the premium to be deposited in cash vide receipt Ex.PW.29/H. Secondly, Ex.PW.12/B which is a proposal for issuance of a marine policy depicts that consignment of Magnatic Optical Drive and Computer C.C.No: 31 / 2011 Page No.167 of 188 Judgement in the matter of:-

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

Equipment "will be" dispatched from Hyderabad for Delhi and G.R.Number "will be" intimated at the time of dispatch.

However, policy Ex.PW.8/DA was issued on same date ie.

04.12.1997 mentioning G.R.Number to be 1052 of 10.12.1997.

Endorsement on Ex.PW.12/B of this policy number is in hands of G.C.Gupta which he had made on 04.12.1997 itself.

289. How G.R. Number and Date happens to be there on the policy issued on same date when the proposal form, on which policy was issued, distinctly states that G.R.Number shall be intimated at the time of despatch. Further, how G.R.Number of a future date could have been mentioned on the policy issued on 04.12.1997. By no stretch of imagination, it can be accepted that any transporter / carrier can issue a G.R., of a future date.

290. Had it not been for the complicity with the insured, accused G.C.Gupta, a senior officer of NIC would not C.C.No: 31 / 2011 Page No.168 of 188 Judgement in the matter of:-

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have let this happen and would have smelt something wrong, at the very inception.

291. Further, from the deposition of PW8 and PW12 coupled with perusal of claim file Ex.PW.3/2, it is evident that letter Ex.PW.8/5 regarding intimation of loss was directly received by accused V.P.Pandhi, who vide his endorsement at Point B, appointed M/s Railway Claim Settlers, for tracing.

292. Bare perusal of this letter points towards the fact that, the public servants who are accused herein, were acting in collusion and connivance with the coconspirators. This letter bears signatures of Rajpal Yadav, who has put the date as 15.01.1998. However, on this letter of 15.01.1998, accused V.P.Pandhi had appointed 'tracer' on 12.01.1998 vide his endorsement at Point B. C.C.No: 31 / 2011 Page No.169 of 188 Judgement in the matter of:-

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CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

293. Prosecution has been able to further magnify this complicity amongst the accused persons. As PW12 Gopa Sahu deposed that this letter was marked to her, who then prepared a letter for M/s Railway Claim Settlers Ex.PW.12/A, vide her endorsement at Point D, but the same could not be sent for want of address, however a copy thereof was sent to insured.

294. Perusal of her endorsement at Point D on Ex.PW.12/B and the letter prepared by her Ex.PW.12/A, reveals the date to be 29.01.1998. Meaning thereby, that M/s Railway Claim Settlers could not have known about their appointment as "tracers" in this case prior to 29.01.1998. However endorsement at Point C on Ex.PW.8/5 reveals that papers for "tracing" were received for and on behalf of M/s Railway Claim Settlers on 12.01.1998 itself. C.C.No: 31 / 2011 Page No.170 of 188

Judgement in the matter of:-

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Dated : 16.10.2014.

295. When and where from accused P.C.Mohan of M/s Railway Claim Settlers would have got the information on 12.01.1998 itself about their appointment as 'tracers', that too on a letter which is dated 15.01.1998, points a definite finger towards the association of all the coconspirators / accused persons.

296. Next pointer towards the association of the accused persons is glorified on joint perusal of report dated 16.03.1998 Ex.PW.24/A and the details of expenses incurred Ex.PW.24/B of accused P.C.Mohan, on one hand and the claim form Ex.PW.8/4 submitted by M/s M.S.Computers and Communications and received by accused G.C.Gupta.

297. It is evident on perusal of Ex.PW.24/B that representative of M/s Railway Claim Settlers had left Delhi for Hyderabad to make inquiries from the transporter / carrier on 16.02.1998. The report Ex.PW.24/A states that on being asked C.C.No: 31 / 2011 Page No.171 of 188 Judgement in the matter of:-

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by representative of 'tracers', the carrier agreed to issue short delivery certificate, but stated that he shall give it either to consignor or consignee.

298. Meaning thereby that "Short Delivery Certificate" was or could not have been issued by the transporter prior to 16.02.1998. However, perusal of claim form Ex.PW.8/4 received by accused G.C.Gupta on 10.02.1998 depicts that the "Short Delivery Certificate" was enclosed with that.

299. This fact could have been noticed by accused G.C.Gupta while approving the claim. But that was not meant to be noticed by the accused public servants, for obvious reasons.

300. Besides the above acts of commissions and omissions by accused public servants, it is apparent that a C.C.No: 31 / 2011 Page No.172 of 188 Judgement in the matter of:-

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basic calculation error was also omitted by them to take note of.

It is apparent from the claim of Rs.2,32,000/ sought by the claimant / insured, the details of which as mentioned in Ex.PW.


29/I are as under:

   Case               Particulars                                                     Rate (Rs.)                              Amount
   No.

   1                  2 Pc CD Writer Make Sony                                        Rs. 30,000/ Per  Pcs. 60,000.00

                      HDD (Hard Disk Drive) 10 Pcs.                                   Rs.6800 Per Pcs.                        68,000.00

                      Floppy Disk Drive 1.2 MB 65 Pcs. Rs.3875/ Per Pcs.                                                     1,04,000.00

                      TOTAL                                                                                                   Rs. 2,32, 000/.

301. Correct and actual amount of 65 Pieces of Floppy Disk Drive 1.2 MB at the given rate comes to Rs. 65 x 3875 = Rs. 2,51,875/. This amount if added to the other two figures makes the total claim as Rs. 2,51,875 + Rs.60,000 + Rs.

68,000 = Rs.3,79,875/. However, accused G.C.Gupta while approving the claim has failed to take into consideration this simple calculation error. This omission on his part was deliberate for obvious reasons of his complicity with the co conspirators.

C.C.No: 31 / 2011 Page No.173 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

302. All the correspondence right from the proposal for issuance of Marine Policy, to the intimation of loss of consignment and submission of Claim Form, though in ordinary course should have been received by the Insurance Company in its office, from where it should have been put up before the accused persons, who were the senior officers.

However, evidence on record reveals that all these correspondence were directly received by accused G.C.Gupta and V.P.Pandhi.

303. No doubt, PW3 , PW4 and PW7 during the course of their cross examination, had admitted that there is no irregularity or directly receiving a Dak by Incharge / Senior Officer, Heading the Branch. But, this process should have been an exception. In the present case, all these correspondence, directly landed in the hands of accused public servants, who then had given definite instructions to their subordinate officers for processing them. This leads to C.C.No: 31 / 2011 Page No.174 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

establish an important link between the accused public servants and their coconspirators ie. private persons.

304. Apart from above, accused G.C.Gupta by accepting the recovery of Rs.16,000/ vide receipt Ex.PW.8/D1 coupled with voucher Ex.PW.29/K from the recovery agent without conforming as to whether it has come from the transporter / carrier or not, closed the file by putting the final nail in the coffin of the present case, probably with the hope and intention that noone will get to know of what transpired between them as officers of National Insurance Company and the coconspirators which led to passing of this claim.

305. As responsible officers of National Insurance Company, it was expected of them being obligatory on their part, to have acted in the best interest of the company. But that was not to be. They not only obviated what basic standard of care and caution they were expected to adopt while C.C.No: 31 / 2011 Page No.175 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

performing their official duties. Rather, they facilitated their coconspirators to cheat the insurance company by causing wrongful loss to it.

306. Had there been no involvement of these accused public servants, then the "rule of prudence" demand that they should have scrutinized the documents / letters sought to be placed on record in support of the claim by the claimant, which would have saved National Insurance Company from the wrongful loss.

307. But that was not to be.

308. This conduct of accused public servants clearly reveals that there was prior meeting of minds between them and Munish Yadav , Arvind Kumar Sharma and P.C.Mohan. The object of this conspiracy was to cheat National Insurance Company, by successfully passing and releasing the claim in C.C.No: 31 / 2011 Page No.176 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

favor of M/s M.S.Computers and Communications, proprietorship concern of accused Munish Yadav and thus to cause wrongful loss to NIC and corresponding pecuniary advantage / wrongful gain to him.

309. This has led me down to the next contention urged on behalf of accused public servants by Ld.Defence Counsels, that the investigating agency had been unfair and adopted "Pick and Choose Policy" to falsely implicate accused G.C.Gupta and V.P.Pandhi and exonerating other similarly situated officers.

310. Need of fair, honest, efficient and thorough investigations is the single most important factor which directly determines the fulfillment of the object for which various provisions of P.C.Act were brought on the Statute Book. Investigations lays the foundation on which arch of trial is erected. An important link, if missed by the investigating C.C.No: 31 / 2011 Page No.177 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

agency and if detected late, leads to crumbling of this arch.

Therefore, the investigating agency while performing its duty, needs to be vigilant so as to collect all material and relevant evidence linked with the case.

311. An important link, if missed, could lead to hazardous results as time and resources spent on trial becomes irretrievable. Whether such evidence or link did not exist or intentionally skipped by the investigating agency however is required to be looked into. For that, I have considered the entire prosecution evidence, more particularly the deposition of three officers of the vigilance team of NIC and the report which formed the basis of complaint filed with CBI by PW K.Mahapatra. I have also considered the deposition of both the Investigating officers. There was no evidence against the other officers of NIC, who as per Ld.Defence Counsels for accused public servants, have performed similar roles. C.C.No: 31 / 2011 Page No.178 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

312. From the evidence which has come up on record as discussed hereinabove, prosecution has been able to establish nexus between the accused public servants only and their coconspirator private persons. I do not see from material on record that the investigating agency had intentionally skipped evidence against other officers of NIC. Therefore, this contention of Ld.Defence Counsels that investigating agency had conducted the investigations in an unfair manner adopting "pick and chose policy" is turned down.

313. Sh.C.L.Gupta, Advocate, Ld.Defence Counsel relying upon the defence witness examined by them ie. DW5 Om Prakash, had contended that even the investigating agency during house search of accused G.C.Gupta did not find anything incriminating. He contended that the documents taken into possession during his house search were returned to the accused. Ld.Defence Counsel further augmented this C.C.No: 31 / 2011 Page No.179 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

contention of his, that accused G.C.Gupta has not criminally misconducted himself, by relying upon the deposition of other defence witness examined by them viz. DW2 A.K.Goel, to prove that his suspension order was revoked and he has been reinstated.

314. I have considered these contentions of Ld.Defence Counsel and have perused the defence evidence led on record. Merely because during house search of accused G.C.Gupta, investigating agency did not find documents worth relying to prove its case, does not by any way rules out the importance of the documentary evidence which has been relied upon and proved by the prosecution against accused. Further, merely because his department has revoked the suspension and reinstated the accused does not exonerates the accused from the criminal liability, if established on the basis of settled principles of adjudication of Criminal Justice System.

C.C.No: 31 / 2011 Page No.180 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

315. In view thereof, I do not find any merits in this contention of Ld.Defence Counsel to exonerate accused G.C.Gupta on the basis of deposition of these two defence witnesses examined by them. The same is accordingly turned down .

316. Last contention urged on behalf of the accused public servants, was that their actions and inactions does not constitute the offence under Prevention of Corruption Act as the same at best, can amount to misconduct. It is contended that this misconduct, by no stretch of imagination, can be termed as "criminal".

317. The word "misconduct" has been defined in Black's Law Dictionary, which reads as under: C.C.No: 31 / 2011 Page No.181 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

"The transgression of some established rule of action, dereliction from duty, unlawful behaviour, improper or wrong behaviour".

318. The term "misconduct" implies wrong intention and not a mere error of judgement. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or Statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action.

319. Section 13(1) (d) of the Prevention of Corruption Act, does not make any negligence or a plain and simple misconduct on the part of any public servant, a punishable offence. Hon'ble Apex Court in a catena of C.C.No: 31 / 2011 Page No.182 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

judgement while interpreting the provisions of this Act has laid down that a blatant carelessness or gross negligence on the part of any public servant, does not ipsofacto, comes within the domain of this Section. The alleged misconduct on the part of public servant has to be actuated with criminal intent. The abuse of his position as a public servant in order to come within the mischief of the section must necessarily be dishonest intention on the part of said officer qua the alleged act.

320. The burden to prove affirmatively that accused by abusing his official position had obtained any pecuniary advantage either for himself or for any other person, lies on the prosecution. The prosecution on the basis of evidence led by it on record, has to satisfy the principal that all inculpatory facts, established on record must be inconsistent with the innocence of the accused and incapable of explanation of any other hypothesis than that of his guilt.

C.C.No: 31 / 2011 Page No.183 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

321. In the backdrop of above, the analysis of evidence adduced by the prosecution during the course of trial, and observed by me hereinabove, in my considered opinion has led to an unerring certainty that accused G.C.Gupta and V.P.Pandhi, acting inconcert, with each other being public servants, had abused their official position as such and facilitated coaccused Munish Yadav, Proprietor of M/s M.S.Computers and Communications with aid and assistance of other two conspirators namely P.C.Mohan and Arvind Kumar Sharma, the tracer and recovery agent respectively, to get wrongful pecuniary advantage, by passing a claim on the basis of false and forged documents, thereby causing wrongful loss to NIC.

322. These actions and omissions of theirs, is nothing short of "criminal misconduct" as the same is laden with a dishonest intention, with which they had acted while dealing with the Claim file Ex.PW.3/2 and passing and C.C.No: 31 / 2011 Page No.184 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

releasing a claim amounting to Rs.2,32,000/ in favor of M/s M.S.Computers and Communications. Their actions have clearly transgressed plain and simple misconduct and entered in the contours of "criminal misconduct".

323. Consequently, from the material placed and proved on record by the prosecution, it is established that there was prior meeting of minds amongst all the accused persons except K.V.Juneja, who acting inconcert had hatched a conspiracy, the object of which was to obtain a Marine Claim in favor of M/s M.S.Computers and Communications, on the basis of false and forged documents.

324. Prosecution has been able to establish on record that all the accused had performed their assigned roles of commissions and omissions, in the process of achieving the object of conspiracy. Had there been no prior meeting of minds, then the accused persons would not have conducted C.C.No: 31 / 2011 Page No.185 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

themselves, the way they have, as held by me hereinabove.

325. In view thereof, I do not find any merits in the contentions advanced by Ld.Counsels for the accused persons that the material on record is not sufficient to infer that there was no meeting of mind amongst the accused persons to carry out any illegal design.

326. The cumulative effect of the facts established on record by the prosecution which are inconsistent with the innocence of the accused persons and incapable of any explanation or any loopholes, other than guilt of the accused G.C.Gupta, V.P.Pandhi, Munish Yadav, Arvind Kumar Sharma and P.C.Mohan, I am of the considered opinion that apart from the offence of commission of criminal conspiracy to commit offences, the same are sufficient for proving substantive offences of criminal misconduct ; cheating forgery ; and submission of forged documents as C.C.No: 31 / 2011 Page No.186 of 188 Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

genuine .

327. No offence could be established on record by the prosecution against accused K.V.Juneja.

328. In view thereof , I proceed to dispose off the present case as under: F I N A L V E R D I C T:

329. Having regards to the facts and circumstances and the discussions as delineated hereinabove:

(a) Accused G.C.Gupta, V.P.Pandhi, Munish Yadav, Arvind Kumar Sharma and P.C.Mohan, stands convicted for offences punishable under section 120B r/w section 420, 468 and 471 I.P.C, read with section 13(1)(d) & 13(2) of Prevention of Corruption Act.

C.C.No: 31 / 2011 Page No.187 of 188

Judgement in the matter of:-

CC No.: 31 / 11.

CBI Vs. G.C.Gupta & Ors.

Dated : 16.10.2014.

(b) Accused G.C.Gupta and V.P.Pandhi, also stands convicted for substantive offences under section 13(1)(d) read with section 13(2) of Prevention of Corruption Act.

(c) Accused Munish Yadav also stands convicted for substantive offence under section 420 and 471 IPC.

(d) Accused Arvind Kumar Sharma also stands convicted for substantive offence under section 420 IPC.

(e) Accused P.C.Mohan is also stands convicted for substantive offence under section 468 IPC.

(f) Accused K.V.Juneja is acquitted of all the charges framed against him.

330. Let all the convicts be heard on the point of sentence.

Announced in the Open Court On the 16 Day of October, 2014.

th (KANWALJEET ARORA) SPECIAL JUDGE : C.B.I. (P.C.ACT) DWARKA COURTS, NEW DELHI.

C.C.No: 31 / 2011 Page No.188 of 188

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Delhi District Court

Cbi vs . G.C.Gupta & Ors. on 16 October, 2014