Delhi District Court
Cbi vs . G.C.Gupta & Ors. on 16 October, 2014
Judgement in the matter of:-
CC No.: 37 / 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.: 37/2011
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
C.C.No: 37 / 2011 Page No.1 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(ii) Pramod Kumar Gupta,
S/o. Sh. S.P.Gupta
R/o C479, IIIrd Floor,
Vikas Puri, New Delhi.
(iii) Ashok Kumar Kochhar,
S/o. Sh. Madan Lal,
R/o A105 A, Adhyapak Nagar,
Nangloi, Delhi - 41.
(iv) Parveen Kumar Kochhar,
S/o. Sh. Madan Lal,
R/o GH14/1075, Paschim Vihar,
New Delhi - 87.
... [ACCUSED PERSONS].
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.
C.C.No: 37 / 2011 Page No.2 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 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.H.S.Sharma, Advocate, Ld.Counsel for accused Pramod
Kumar Gupta.
(iv)Sh.R.K.Kohli, Advocate, Ld.Counsel for accused Ashok Kumar
Kochhar.
(v)Sh.I.S.Kapoor, Advocate, Ld.Counsel for accused Praveen
Kumar Kochhar.
: 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
C.C.No: 37 / 2011 Page No.3 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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
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.
C.C.No: 37 / 2011 Page No.4 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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.
5. On conclusion of the investigations, CBI had
filed the present charge sheet against accused Girish Chandra
Gupta, Pramod Kumar Gupta, Ashok Kumar Kochhar and
Parveen Kumar Kochhar on the allegations that G.C.Gupta, the
then Assistant Manager, National Insurance Company Ltd.,
New Delhi, during the year 199798, had entered into a
C.C.No: 37 / 2011 Page No.5 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
criminal conspiracy with Pramod Kumar Gupta, Ashok Kumar
Kochhar and Parveen Kumar Kochhar, the object of which was
to obtain a Marine Insurance Claim amounting to Rs.2,29,649/
in favour of M/s Kepco Industries India, on the basis of false
and forged documents, knowing or having reasons to believe
the same to be forged ones and thus to cheat National
Insurance Company. It is alleged that the Girish Chandra
Gupta, being public servant criminally misconducted himself
and as a member of the conspiracy, had facilitated accused
Pramod Kumar Gupta, Ashok Kumar Kochhar and Parveen
Kumar Kochhar to submit false and bogus documents in
support of the claim, thereby inducing National Insurance
Company Ltd. to release payment of Rs.2,29,649/ in favour of
M/s Kepco Industries owned by Parveen Kochhar and thus
obtaining pecuniary advantage for him and corresponding
wrongful loss to NIC.
C.C.No: 37 / 2011 Page No.6 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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:
F A C T U A L M A T R I X :
7. It is alleged that Parveen Kumar Kochhar as
Proprietor of M/s Kepco Industries, vide letter dated 20.04.1998
had requested for issuance of Transit Insurance Policy for one
Tanker of Tolwin oil to be transported from consignor M/s Leo
Dye Chemicals, B126, Ghatkopar Industries Estate, LBS
Marg, Ghatkopar (W), Mumbai to consignee i.e. M/s Kepco
Industries India, E3/7, Shiv Ram Park Extn., Nangloi, Delhi,
vide Goods Receipt No. 325 dated 27.04.1998.
C.C.No: 37 / 2011 Page No.7 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
8. It is alleged that the consignment was to be
transported by a Truck / Tanker bearing No. DEL2557 of M/s
Shree Durga Carriers, Delhi, owned by accused Ashok Kumar
Kochhar being Proprietor of said firm.
9. It is alleged that insured / consignee Parveen
Kumar Kochhar vide letter dated 02/04.05.1998 intimated that
Truck bearing No. DEL2557 had met with an accident at
Dharuhera (Haryana), and a surveyor be deputed at the site,
which was received by G.C.Gupta, who deputed P.K.Gupta of
M/s P.Gupta & Company as Sureyor. It is further alleged that
P.K.Gupta submitted his survey report dated 14.05.1998 and
an amount of Rs.3267/ was paid to surveyor by the insured
firm, as Survey fees.
10. It is alleged that the purported consignor Sh.
H.C.Mehta, Proprietor of M/s Leo Dye Chem., Mumbai had
disclosed during investigations that he had never done any
C.C.No: 37 / 2011 Page No.8 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
transaction of sale and purchase of material like Tolwin oil
with M/s Kepco Industries India, New Delhi and confirmed that
the invoice of said consignment was never issued by his firm.
It is alleged that the weighment receipt of tanker at Om
Dharamkanta, Dharuhera (Haryana) and Maha Laxmi
Dharamkanta, Shahdara were found to be forged. It is alleged
that Sh.B.S.Taneja, Proprietor of M/s Maha Laxmi
Dharamkanta have denied to have issued the weighment
receipt No. 4939 & 4946 dated 05.05.1998.
11. It is alleged that claim note in this case was
prepared by Sh. M.L.Meena, Assistant and recommended by
Smt. Gopa Sahu, Administrative Officer for Rs.2,29,649/ which
was approved by G.C.Gupta, Assistant Manager.
12. It is alleged that on the basis of said approval
cheque amounting to Rs.2,29,649/ of Indian Overseas Bank,
Delhi, was issued and Parveen Kumar Kochhar, Proprietor of
C.C.No: 37 / 2011 Page No.9 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
M/s Kepco Industries India, deposited the cheque in his current
account no. 5061, Punjab National Bank, Tri Nagar Branch,
Delhi.
13. It is alleged that Parveen Kumar Kochhar, the
insured had signed letter of subrogation dated 09.06.1998,
claim bill dated 30.05.1998, insurance policy dated 22.04.1998,
disbursement voucher of claim dated 29.06.1998, prereceipt for
claim amount for Rs.2,29,649/, request letter dated 20.04.1998
for issuance of insurance policy, letter dated 26.06.1998
enclosing Dharamkanta receipt dated 25.06.1998 and claim
form. It is alleged that M/s Recovery India International,
Proprietorship concern of Rakesh Mudgil were deputed as
Recovery agent and no recovery in this case was made out,
therefore, no recovery fee was paid to the recovery agent.
C.C.No: 37 / 2011 Page No.10 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
14. It is alleged that Ashok Kumar Kochhar i.e.
the transporter of M/s Shree Durga Carriers and Parveen
Kumar Kochhar i.e. the consignee / insured, Proprietor of M/s
Kepco Industries are real brothers.
15. It is alleged that neither consignee M/s Kepco
Industries nor transporter M/s Shree Durga Carriers were in
existence at the given addresses during the relevant period.
16. It is alleged that the document submitted in
support of the claim i.e. Survey Report, GR of the transporter
as well as invoice / challan were bogus and forged as neither
the consignee nor the transporter were in existence at the given
addresses during the relevant point of time.
C.C.No: 37 / 2011 Page No.11 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
17. It is alleged that all the accused persons thus
in furtherance of the conspiracy entered into amongst them had
cheated National Insurance Company by getting Marine Claim
for Rs.2,29,649/ on the basis of forged and fabricated
documents.
18. It is further alleged that G.C.Gupta of
National Insurance Company Ltd., being Public servant had
criminally misconducted himself by abusing his official
position as public servant in order to cause pecuniary
advantage to accused Pramod Kumar Gupta, Ashok Kumar
Kochhar and Parveen Kumar Kochhar.
19. It is alleged that on conclusion of
investigations, the report was submitted to the competent
authority for necessary sanction for prosecution against the
public servant G.C.Gupta, which was granted.
C.C.No: 37 / 2011 Page No.12 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
20. It is alleged that all the accused persons have
committed offences punishable under Section 120B read with
section 420, 467, 468 & 471 IPC and 13 (2) read with 13 (1)
(d) of PC Act and also the substantive offences.
21. Whereafter, the present charge sheet was filed
in court against all the accused persons for proceeding against
them, as per law.
C O G N I Z A N C E O F O F F E N C E :
22. 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.
23. In compliance to the Provisions of Section 207
Cr.P.C, the accused persons were supplied with the copies of
C.C.No: 37 / 2011 Page No.13 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
charge sheet and documents relied upon by the prosecution.
C H A R G E :
24. 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 13
(2) read with section 13 (1) (d) of Prevention of Corruption
Act have been culled out against all the accused persons.
25. 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,
the public servant, substantive charge for offence under section
468 IPC against Pramod Kumar Gupta accused no. 2 & Ashok
C.C.No: 37 / 2011 Page No.14 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Kumar Kochhar accused no. 3 and substantive charges for
offences under section 420, 471 read with 467, 468 IPC against
Parveen Kumar Kochhar accused no. 4, on the basis of material
on record.
26. 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.
27. Separate charge for substantive offence under
section 13(2) read with 13 (1) (d) of P.C.Act was framed
against Girish Chandra Gupta i.e. accused no.1, the public
servant.
C.C.No: 37 / 2011 Page No.15 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
28. Separate charges for substantive offence under
section 468 IPC were framed against Pramod Kumar Gupta
i.e. accused no.2 and Ashok Kumar Kochhar i.e. accused no.3.
29. Separate charge for substantive offence under
section 420 IPC and offence under section 471 read with 467
and 468 IPC was framed against Praveen Kumar Kochhar i.e.
accused no.4.
30. The requisite charges framed against all the
accused persons were read over to them, to which they pleaded
not guilty and all of them claimed trial.
P R O S E C U T I O N E V I D E N C E :
31. 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
C.C.No: 37 / 2011 Page No.16 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
the given opportunities, CBI had examined 27 witnesses.
32. The witnesses so examined by the prosecution
to substantiate its case can be broadly categorized in
Six Categories:
33. 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 :
C.C.No: 37 / 2011 Page No.17 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(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) PW6 Sh.A.K.Tiwari, Dy. Manager, AO Vigilance, NIC ;
(vi) PW7 Sh.Madan Lal Meena, Assistant, NIC ;
(vii)PW8 Sh.Dharampal Rana, AO, NIC ;
(viii) PW10 Sh.N.K.Dutta, Regional Manager, NIC ;
(ix) PW11 Smt.Gopa Sahu, Assistant Admin. Officer, NIC ;
(x) PW12 Smt.Pooja Soni, Assistant, NIC ;
(xi) PW13 Sh.R.C.Sood, Assistant, NIC ;
(xii) PW15 Smt.Neelam Kataria, Admin. Officer, NIC ;
C.C.No: 37 / 2011 Page No.18 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
34. The witnesses of the first category have
further deposed regarding issuance of cheque to the concerned
parties onces the claim is finally 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.
35. Second Category of witnesses examined by
the prosecution are also important ones as they are from the
banks where National Insurance Company and accused
Parveen Kumar Kochhar, Proprietor of M/s Kepco Industries,
were having their accounts. This category comprises of :
(i) PW14 Sh.R.Vaidhyanathan, Chief Manager, Indian
Overseas Bank ;
(ii) PW16 Sh.S.K.Mukhi, Special Assistant, Punjab National
Bank, Delhi.
C.C.No: 37 / 2011 Page No.19 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
36. 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.
37. Third Category of witnesses are the ones who
have deposed about not sending the alleged consignment by
the purported consignor i.e. M/s Leo Dye Chemicals. The
witnesses of this category have deposed about nonexistence of
Transporter i.e. M/s Shree Durga Carriers. This category
includes PW19 Sh.H.C. Mehta, Proprietor of M/s Leo Dye
Chem, who deposed that he never had any dealings with M/s
Kepco Industries nor had supplied any Tolwin oil to them.
This category comprise of :
(i) PW9 Sh. Mohan Mahto, Postal Assistant, PO, Rohini,
Delhi ;
(ii) PW17 Sh.Sonu Gupta, Property Dealer, Najafgarh Road,
New Delhi ;
(iii) PW18 Sh.Shiv Charan, Najafgarh Road, New Delhi ;
C.C.No: 37 / 2011 Page No.20 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(iv) PW19 Sh.H.C. Mehta, Proprietor of M/s Leo Dye Chem ;
(v) PW21 Sh.B.S. Bisht, Inspector, CBI ;
38. 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
also includes PW22 Sh.B.S. Taneja, Proprietor of Maha Laxmi
Dharamkanta, who deposed with respect to Dharamkanata
receipts Ex. PW22/B & Ex. PW22/C that same were never
issued from their Dharamkanta. This category includes :
(i) PW25 Sh. S.Balakrishna Shetty, Officer, Vijaya Bank ;
(ii) PW26 Sh. R.C.Madan, Officer, Punjab National Bank ;
(iii)PW27 Sh. R.K.Saran, Additional S.P., CBI ;
(iv) PW22 Sh.B.S. Taneja, Proprietor of Dharamkanta.
C.C.No: 37 / 2011 Page No.21 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
39. Fifth Category of the witness examined by
the prosecution was the one who had given sanction for
prosecution of the accused public servant. 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.
40. Sixth Category of witnesses includes those
who remained associated with the investigations of the
present case in one form or the other, including the
Investigating Officer. This category includes the handwriting
expert, who assisted the investigations in this case. This
category consists of :
(i) PW20 Sh. Mohinder Singh, Assistant, GEQD, CFSL ;
(ii) PW23 Sh.S.K.Kashyap, Additional S.P., CBI ;
(ii) PW24 Sh.R.P.Kaushal, Additional S.P., CBI.
C.C.No: 37 / 2011 Page No.22 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
41. The detail deposition of these witnesses is not
being adverted to, as the same shall be referred hereinafter
while dealing with the necessary ingredients of the offence,
with which accused have been charged, visavis the rival
contentions advanced by Ld.Special Public Prosecutor for CBI,
as well as by Ld.Defence Counsels for the accused persons.
42. All the prosecution witnesses were cross
examined in detail by Sh.C.L.Gupta, Sh.R.K.Kohli,
Sh.H.S.Sharma, and Sh.I.S.Kapoor, 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.
C.C.No: 37 / 2011 Page No.23 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
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 :
43. 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.
44. On being asked, none of the accused persons
except accused no.1 Girish Chandra Gupta, wished to examine
witnesses in their defence. Accused G.C.Gupta was permitted
to lead his defence evidence.
D E F E N C E E V I D E N C E :
45. Availing the given opportunities, accused no.1
Girish Chandra Gupta had examined two witnesses in his
defence. Sh.A.K.Goel, posted as Dy. Manager with NIC,
Dehradun was examined as DW1 and Sh.Om Prakash, ASI,
C.C.No: 37 / 2011 Page No.24 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Malkhana Incharge, EOWI, appeared in the witness box as
DW2.
46. As accused no.2 Pramod Kumar Gupta,
accused no.3 Ashok Kumar Kochhar and accused no. 4 Parveen
Kumar Kochhar despite grant of opportunity, did not wish to
examine any witness in their defence. Thus, defence evidence
qua them was closed.
47. DW1 Sh.A.K.Goel, posted as Dy. Manager
with NIC, Dehradun was examined on behalf of accused no. 1
G.C.Gupta. He appeared in the witness box and submitted
certified copy of circular dated 16.02.1996 with regard to
"Performance of Technical Duties" and the same was proved as
Ex. DW1/A. He also proved on record order dated 19.08.2013
Ex. DW1/B with respect to G.C.Gupta whereby his suspension
order was revoked and he was directed to join DDRO,
Dehradun. On being cross examined by Ld.PP for CBI, this
C.C.No: 37 / 2011 Page No.25 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
witness admitted that circular Ex. DW1/A brought by him was
marked to Regional Office, Chandigarh. This witness, during
cross examination by Ld. P.P. stated that he does not have any
knowledge of the conditions mentioned in order Ex. DW1/B.
48. Sh.Om Prakash, ASI, Malkhana Incharge,
EOWI, was also examined on behalf of accused no. 1
G.C.Gupta. This witness appeared in the witness box as DW2
and proved on record receipt Ex. DW2/A whereby documents
mentioned therein were returned to G.C.Gupta, which were
taken into possession during investigations, copy of said
counter foil bearing signatures of Sh.Mahesh Chand Gupta is
Ex. DW2/A1, copy of application filed by CBI before concerned
court seeking permission to return the unrelied documents is
Ex. DW2/B, memo dated 01.06.2004 issued by the then S.P.
Sh. Alok Mittal, directing the Investigating Officer to return
the unrelied documents obtaining necessary court permission is
C.C.No: 37 / 2011 Page No.26 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Ex. DW2/C, application seeking court permission to return the
unrelied documents is Ex. DW2/D and copy of order passed by
the concerned court dated 09.06.2004 is Ex. DW2/E. This
witness was not at all cross examined on behalf of CBI.
49. 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, the public servant. Sh.H.S.Sharma,
Sh.R.K.Kohli & Sh.I.S.Kapoor, Advocates on behalf of
accused no. 2 Pramod Kumar Gupta, accused no. 3 Ashok
Kumar Kochhar & accused no. 4 Parveen Kumar Kochhar
respectively.
C.C.No: 37 / 2011 Page No.27 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
A R G U M E N T S O N B E H A L F O F C B I :
50. 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.
51. It is submitted by Ld. Public Prosecutor that
accused public servant had abused his official position and thus
criminally misconducted himself, so as to cause pecuniary
advantage to their coaccused persons and corresponding
wrongful loss to National Insurance Company Limited. He
further contended that the accused public servant by abusing
his official position had entered into a criminal conspiracy with
the private persons and facilitated them to have a Marine
Insurance Policy and to clear the claim on the basis of forged
documents, knowing or having reasons to believe the same to
be forged ones. He contended that the insured had obtained a
policy on the basis of a bogus transaction, knowing or having
C.C.No: 37 / 2011 Page No.28 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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 servant in
furtherance of the conspiracy, let the same on record and
without verifying the genuineness of the same, passed the
claim to cause wrongful gain to the accused private persons,
including the surveyor and others and corresponding wrongful
loss to NIC. He contended that all the accused persons be
accordingly convicted under relevant "Provisions of Law".
D E F E N C E A R G U M E N T S :
52. To defend the accused persons, Sh.Ramesh
Gupta, Ld.Senior Advocate along with Sh.C.L.Gupta,
Sh.H.S.Sharma, Sh.R.K.Kohli & Sh.I.S.Kapoor,
C.C.No: 37 / 2011 Page No.29 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Advocates, Ld.Defence Counsels had led multifaceted attack
to the prosecution case. The arguments advanced Ld.Defence
Counsels can be broadly categorized in 3 dimensions. 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.
53. Ld.Defence Counsels had opened their
arguments raising a LEGAL ISSUE stating that prosecution
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 servant, therefore, the provisions
of Section 13(1) (d) of Prevention of Corruption Act, cannot be
invoked.
C.C.No: 37 / 2011 Page No.30 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
54. 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 servant. The arguments advanced on this
aspect were twofold i.e. :
(i) Incompetence of Sanctioning Authority: The authority
which had passed the sanction order qua the public servant
was not competent to pass the same, therefore, the sanction
order is bad in law.
(ii) Nonapplication of mind : Even if it is assumed that the
sanctioning authority was competent to pass the sanction
order, 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.
C.C.No: 37 / 2011 Page No.31 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
55. It is contended that as the sanction order was
bad in law, therefore, the whole proceedings have become
nonest.
56. Third dimensional attack on the prosecution
case raised by Ld.Defence Counsels was on factual aspects,
visavis the necessary ingredients of the offences with which
accused persons were charged.
57. 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 has been wrongly and falsely implicated, therefore he
be acquitted of the charge.
C.C.No: 37 / 2011 Page No.32 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(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 servant 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.
(iii) No overt act on the part of public servant : That, the
accused public servant had not done anything, in order to
achieve the socalled object of conspiracy as he was not party to
any such conspiracy / offence.
(iv) Official discharge of duties: That, the accused public
servant did, what was his official duty and had only processed /
recommended / passed the claim on the basis of the
recommendations / notes prepared by the subordinate staff.
C.C.No: 37 / 2011 Page No.33 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(v) No knowledge about forgery: That, the accused public
servant did not have any knowledge that the documents
annexed with the claim form by the insured or other accused
persons, were forged ones.
(vi) No duty of the public servant for verification of
documents: That, even otherwise, it was not the duty of
accused public servant to verify the genuineness of the
documents. Further, he had no reason to doubt the genuineness
of the documents so annexed with the claim form.
58. Apart from the above contentions which were
commonly advanced on behalf of all the accused persons,
Sh.H.S.Sharma, Sh.R.K.Kohli & Sh. I.S.Kapoor,
Advocates, Ld.Defence Counsels for accused no.2 Pramod
Kumar Gupta, Accused no.3 Ashok Kumar Kochhar and
accused no.4 Parveen Kumar Kochhar, supplemented the
contentions against the prosecution case. The same are as
C.C.No: 37 / 2011 Page No.34 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
under:
(i) No mensrea / involvement of accused Pramod Kumar
Gupta : Sh.H.S.Sharma, Ld.Defence Counsel had contended
that accused Pramod Kumar Gupta being empanelled surveyor
was legally appointed as surveyor. He contended that Pramod
Kumar Gupta had conducted survey and submitted his report
and by doing same he has not committed any illegality.
(ii) Survey / Tracing Report not relevant for passing of
the claim: It is contended by Sh. H.S.Sharma, Advocate,
on behalf of accused Pramod Kumar Gupta that the survey
report submitted by him is not binding on the insurance
company, therefore, he cannot be held liable for the claim, if
any, passed by the insurance company in favour of the
insured / claimant.
C.C.No: 37 / 2011 Page No.35 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(iii) Survey Report cannot be held as a "forged
document" : It is contended by Sh. H.S.Sharma, Advocate,
on behalf of accused Pramod Kumar Gupta 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.
(iv) No link between accused Ashok Kumar Kochhar &
the prosecution case or the other accused persons :
Sh. R.K.Kohli, Advocate, had contended that prosecution on
the basis of entire evidence led on record has failed to establish
any link between its case and accused Ashok Kumar
Kochhar. No document whatsoever placed and proved on
record by the prosecution bears signatures of accused Ashok
Kumar Kochhar.
C.C.No: 37 / 2011 Page No.36 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(v) Non examination of material witnesses : It is
submitted by Sh. R.K.Kohli, Advocate, that prosecution has
claimed that neither consignor nor transporter were in
existence. However, prosecution has failed to examine
material witnesses to prove this aspect. He contended that the
witnesses so examined by the prosecution are not reliable and
trustworthy.
(vi) Unfair investigations : Sh.I.S.Kapoor, Advocate had
contended that accused Parveen Kumar Kochhar had nothing
to do with M/s Kepco Industries. He contended that the
accused had not opened any bank account in the name of M/s
Kepco Industries. He contended that the witness examined by
the prosecution in this regard i.e. PW16 Sh.S.K.Mukhi is not
reliable witness to prove that it was accused Parveen Kumar
Kochhar, who had opened this account. He further contended
that the investigating agency has failed to conduct proper
investigations, so as to find out that photograph of Parveen
C.C.No: 37 / 2011 Page No.37 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Kumar Kochhar was misused by his brother Ashok Kumar
Kochhar to open an account in his name as a result of which,
the investigating agency has falsely implicated accused
Parveen Kumar Kochhar.
(vii) Specimen signatures & the Expert Report thereon
cannot be relied upon : Sh.I.S.Kapoor, 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.
59. To augment the oral submissions made on
behalf of accused Parveen Kumar Kochhar, Sh. I.S.Kapoor,
Advocate, had filed written submissions as well.
C.C.No: 37 / 2011 Page No.38 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
A P P R E C I A T I O N O F E V I D E N C E A N D
R I V A L C O N T E N T I O N S :
60. Before adverting to appreciate the prosecution
as well as defence evidence which has come up on record visa
vis the charges against the accused persons, as well as the
arguments advanced on the mixed questions of facts and law, I
deem it appropriate to deal with that contentions first which
have been raised by Ld.Defence Counsels, on purely legal
aspects, in their quest to demolish the prosecution case at its
threshold.
61. The opening contention of Ld.Defence
Counsels was that, there is no averment or allegation in the
entire charge sheet of extension of any illegal gratification
on the part of insured or other private accused persons, to the
accused public servant, 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
C.C.No: 37 / 2011 Page No.39 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
ground itself, the case cannot proceed and accused persons
should be acquitted.
62. In order to deal with this contention of
Ld.Defence Counsels, it is pertinent to make a mention of the
relevant provisions of Section 13 (1) (d) of Prevention of
Corruption Act. The same is as follows :
Section 13: Criminal misconduct by a public servant :
(1) A public servant is said to commit the offence of criminal
misconduct,
(a) . . .
(b) . . .
(c) . . .
(d) if he,
(i) by corrupt or illegal means, obtains for
himself or for any other person any
valuable thing or pecuniary advantage ; or
(ii)by abusing his positioning as a public
servant, obtains for himself or for any
other person any valuable thing or
pecuniary advantage ; or
(iii)while holding office as a public
servant, obtains for any person any
valuable thing or pecuniary advantage
without any public interest ; or
(e) . . .
C.C.No: 37 / 2011 Page No.40 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
63. The phrases namely "corrupt , illegal means"
and "by abusing his position as public servant" are different
categories of corrupt practices, which are conjuncted by the
words "or" and not by the conjunction "and". This in itself
indicates that these three different categories are alternate
misconduct on the part of public servant and either of these
three practices, if done by public servant then the same can
constitute an offence under this Section.
64. The phraseology "By abusing his official
position as Public Servant" covers the acts done by the public
servant otherwise than by corrupt or illegal means. The gist of
the offence under this clause is, that a public officer abusing
his position as "public servant" obtains for himself or for
other person, any valuable thing. The word "abuse" used by
the Legislature means "misuse", ie. using his position for
something which is not intended. That abuse of the position
may be by corrupt or illegal means or otherwise than those
C.C.No: 37 / 2011 Page No.41 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
means". In view thereof, the Legislature never intended that
there has to be an express evidence of illegal gratification
before invocation of this section. In case, there are instances
and allegations that a person has abused his position as a
public servant, in order to cause advantage to anyone, that in
itself is sufficient for invocation of this Section.
65. Meaning thereby that in absence of any
allegations by the prosecution on the part of public servant of
demand and acceptance of illegal gratification for showing
any favor to a private individual, the provisions of Prevention
of Corruption Act cannot be invoked, as urged by Ld.Defence
Counsels, to my mind is farfetched and devoid of merits. As
there are allegation of abuse of official position by the public
servant in order to cause pecuniary advantage to their co
accused, this clause of P.C.Act very much comes into play.
C.C.No: 37 / 2011 Page No.42 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
66. In view thereof, the contention advanced by
Ld.Defence Counsels that in the present case there are no
allegations on record that any of the public servant, who are
accused herein had adopted any corrupt or illegal means or
have obtained any pecuniary advantage for themselves, thus
section 13(1) (d) of P.C.Act cannot be invoked, is rejected .
However, the prosecution has to establish the necessary
ingredients of the offences, with which the accused persons
have been charged, on the basis of the evidence which has come
up on record, with which I shall be dealing hereinafter.
67. Having dealt with the contentions urged by
Ld.Defence Counsels on behalf of the accused persons on purely
Legal grounds, I shall now delve upon to consider the
arguments raised involving mixed question of "Law and
Facts".
C.C.No: 37 / 2011 Page No.43 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
68. Leading a double pronged attack on the prosecution case, Sh.Ramesh Gupta, Ld.Senior Advocate along with Sh.C.L.Gupta, Advocates, Ld.Defence Counsels appearing on behalf of the public servant, contended that the provisions of Section 19 of Prevention of Corruption Act, is a mandatory provision and the Court does not have the jurisdiction to take cognizance when the "sanction" under this provision is granted in mechanical manner and without application of mind and that too, by an authority which was not competent to grant the same.
69. Ld.Defence Counsels contended that the sanction order passed by PW1 Sujit Dass against accused G.C.Gupta ie. Ex.PW.1/A is 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 C.C.No: 37 / 2011 Page No.44 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
authority has failed to take into consideration the fact that other officers who have issued the policy or recommended / approved the claim, were not proceeded against and no sanction for prosecution, was granted against them.
70. I have considered the submissions advanced on this aspect and have considered the relevant provisions of law in the light of the precedents relied upon by Ld.Defence Counsels to substantiate their contentions.
71. For administration of Criminal Justice System, an onerous duty is cast on the Courts, to effectively tackle and control the endemic of offences, so as to prevent the society from drifting towards savage society. A balanced approach is required to be adopted by the courts giving strict interpretation to the Clauses of the Penal Provisions and simultaneously being mindful of the inviolable Constitutional Rights granted to the accused, so as to ensure "fair trial".C.C.No: 37 / 2011 Page No.45 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
72. Subjecting any individual to undergo "criminal trial" is an encroachment / restriction on his fundamental right to "Life and Liberty". As per the constitutional mandate enshrined in Article 21 of Constitution of India, granted to each and every citizen of the country, no one can be deprived of his right to life and liberty, except by the due "Process of Law". Thus, if anyone accused of any offence, is to be subjected to criminal trial, then the same has to be in conformity to the procedures established by Law. As whenever a particular procedure is 'prescribed' by law, then all other procedures to do the same are 'proscribed'.
73. Public servant 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 C.C.No: 37 / 2011 Page No.46 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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 servant are expected to discharge their functions with utmost propriety and all fairness. Experience however has revealed that many public servant, instead of using their good offices for the public good, misuse the same for their personal benefits by indulging into corrupt and improper practices.
74. Legislature in its wisdom in order to curb such corrupt and improper practices had brought "Prevention of Corruption Act, 1988" on the Statute Book for not only, punishing those who had violated the very oath of honesty and sincerity with which they had assumed their office and indulged in 'corrupt practices', but also to deter the others from treading the path of dishonesty.C.C.No: 37 / 2011 Page No.47 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
75. Being aware of the fact that some of the honest public servant 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 servant would hesitate to take even the most honest, bonafide and genuine decisions fearing harassment from frivolous and uncalled for allegations.
76. To balance these two conflicting interests, one of which is to give effect to the very object for which Prevention of Corruption Act was brought on the Statute Book to deal with the guilty sternly and on the other hand, to give effect to the shield provided by the Legislature to protect honest and diligent public servant from vexatious and uncalled for prosecution, the onerous duty has been placed on the Courts, which are an important cog in the wheels of Administration of C.C.No: 37 / 2011 Page No.48 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Justice. The courts are obligated to strike balance between these two conflicting interests in such a manner, so that majesty of "Rule of Law" is neither undermined nor defeated.
77. Before proceeding to advert upon the submissions advanced, it is pertinent to make mention of Section 19 of Prevention of Corruption Act, which is reproduced as under: SECTION 19 : PREVIOUS SANCTION NECESSARY FOR PROSECUTION :
(1) No Court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government ;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government ;C.C.No: 37 / 2011 Page No.49 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under subsection (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) :
(a) No finding, sentence or order passed by a Special judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under subsection (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby ;
(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in failure of justice;C.C.No: 37 / 2011 Page No.50 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under subsection (3) whether the absence thereof, or any error, omission or irregularity in, such sanction has occasioned or resulted in failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation - For the purposes of this Section,
(a) error includes competency of the authority to grant sanction ;
(b) a sanction required for prosecution includes reference to any requirement that the prosecut ion shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
78. The object and character of this provision is evidently emanating from the words used in the Section by the Legislature : "No Court shall take cognizance of such C.C.No: 37 / 2011 Page No.51 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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.
79. Thus, the provision has been imparted a mandatory character and has been held so by various authoritative pronouncements by Hon'ble Apex Court. While holding grant of sanction to be a prerequisite or sinequanon for taking cognizance, regard is to be had to the fact that it can be a shield to discourage vexatious prosecution of innocent public servant, but it should not be permitted to be used as a weapon against the prosecution by the guilty. C.C.No: 37 / 2011 Page No.52 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
80. The protection given by the Legislature is to be extended to the extent provided therein and it cannot and should not be stretched elastically to cover those, who are not intended by the Legislature to be under the protective umbrella. As to my mind the Legislature by enacting any provision in the Act, which prohibits the taking of cognizance of offence by a Court, unless certain conditions are complied with, did not purport to condone the offence. Thus, such provision is to be construed on the basis of words used therein, without importing the words, which are not there.
81. In the backdrop of above, I shall consider the arguments advanced by Ld.Defence Counsels raised by them to challenge the authenticity of the sanction order Ex.PW.1/A passed qua G.C.Gupta by PW1 Sh.Sujit Dass, the then General Manager, NIC.
C.C.No: 37 / 2011 Page No.53 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
82. Firstly, I shall consider the arguments advanced on the aspect of "Competence of the sanctioning authority" to pass the sanction order.
83. Though, Ld.Defence Counsels during the course of arguments had contended that PW1 was not the competent authority to pass sanction order against G.C.Gupta, who at relevant point of time was posted as Assistant Manager NIC. However, nothing has been brought on record either during the cross examination of PW1 or during the course of arguments on behalf of the accused, to challenge the competence of PW1, the then General Manager NIC, with respect to passing of the sanction order.
84. In terms of Section 19 (1) (c) of the Act, the sanction for prosecution has to be granted by an authority, which is competent to remove the said person from his office. C.C.No: 37 / 2011 Page No.54 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
85. The question of competence of the "appointing / sanctioning authority" came up for consideration before Hon'ble Supreme Court in case titled "Mohd.Iqbal Ahmed Vs. State of Andhra Pradesh", reported as AIR 1979 SC 677, wherein it was held that :
"... The authority which would be competent to grant sanction is the authority which is entitled to remove from service the public servant against whom sanction is sought".
86. Admittedly, in the present case, PW1 Sujit Kumar Dass, was posted as General Manager NIC at the relevant point of time. Being General Manager, it was PW1 who was the authority capable of removing the officers of the rank of "Assistant Manager" from the services. Nothing has been put to this witness during his cross examination on behalf of accused G.C.Gupta to suggest that General Manager was not the competent authority to remove an officer of the rank of Assistant Manager from his office.
C.C.No: 37 / 2011 Page No.55 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
87. Thus PW1 being General Manager was the competent authority to remove an officer of the rank of Assistant Manager, and thus had the requisite competence to pass the sanction order qua accused no.1, which he did.
88. In view thereof, I do not find any grounds in this contention of Ld.Defence Counsels that PW1 was not having competence to pass the sanction order Ex.PW.1/A.
89. This has brought me down to the second limb of the contentions raised by Ld.Defence Counsels stating that sanction order was 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 order 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 C.C.No: 37 / 2011 Page No.56 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
contended that sanctioning authority had passed the sanction order without referring the matter to Chief Vigilance Officer and without getting the opinion of CVC on the same.
90. I have considered the submissions advanced and have perused the sanction order as well as deposition of PW1 Sh.Sujit Kumar Dass.
91. It has been held by Hon'ble Apex Court time and again that the Court where the question of validity of sanction on the grounds of 'non application of mind' is raised, has to see as to whether the sanctioning authority did consider all the evidence collected by the investigating agency ie. oral as well as documentary.
92. Hon'ble Apex Court in a recent case titled "State of Maharashtra Vs. Mahesh G.Jain" reported as Criminal Appeal no.2345 of 2009 decided on 28.05.2013 had C.C.No: 37 / 2011 Page No.57 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
aptly summed up the principles and guidelines which are required to be followed to decide the question which inundates the Trial Court, challenging the sanction order.
93. Hon'ble Apex Court in this judgement had considered all the previous laws laid down by it, including the cases referred to and relied upon by Ld.Defence Counsel mentioned hereinabove.
94. Hon'ble Apex Court after appreciating the earlier precedents on the subject, had culled out the guiding principles in Para 13 of its Judgement, which are reproduced as under :
(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.
C.C.No: 37 / 2011 Page No.58 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(b) The Sanction Order may expressly show that the sanctioning authority has perused the material placed before him and after consideration of the circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing the evidence that the material was placed before the Sanctioning Authority and his satisfaction was arrived at, upon perusal of the material placed before him.
(d) Grant of Sanction is only an
administrative function and the
sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the Sanctioning Authority cannot be gone into, by the Court, as it does not sit in Appeal over the Sanction order.
(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.C.C.No: 37 / 2011 Page No.59 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(g) The order of sanction is a pre requisite, as it is intended to provide a safeguard to the public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity.
..... (emphasis supplied).
95. In view of these guiding principles, more particularly the principle mentioned at Point (d) (e) (f) and
(g) above, the adequacy of the material placed before the Sanctioning authority is not required to be gone into, as this Court is not sitting in appeal over the sanction order.
96. The discretion whether to grant or not to grant the sanction order lies with the sanctioning authority and it is the subjective opinion of the said administrative authority, which it has to arrive, on the basis of material placed before it. C.C.No: 37 / 2011 Page No.60 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
97. The sanctioning authority was under an obligation to see the material placed before it by CBI, collected during the course of investigations and to arrive at a conclusion as to whether the same is sufficient and requires grant of sanction for prosecution of accused persons or not.
98. In view thereof, it is to be seen as to whether the complete record of the investigations, including oral and documentary evidence collected was or was not placed before the sanctioning authority.
99. It is apparent on perusal of cross examination of PW1 conducted on behalf of accused G.C.Gupta that he had 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 C.C.No: 37 / 2011 Page No.61 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
investigating officer ie. PW24 R.P.Kaushal. No suggestion, whatsoever was given either to PW1 or to PW24 on behalf of the accused persons, that the same was either not produced before PW1 or he had not applied his mind on the same. PW1 during the course of his cross examination, did state that he after perusing the material collected by the investigating agency had passed the sanction order.
100. The other contention of Ld.Defence Counsels that the sanctioning authority had passed the sanction order without referring the matter to CVC, as per notification no. 98 / VGL/62 dated 15.10.2003, to my mind is also devoid of any merits on 2 counts. Firstly, the sanction order Ex.PW.1/A was 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 C.C.No: 37 / 2011 Page No.62 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
on the basis of its own subjective satisfaction & without any influence from any other authority.
101. In view thereof, there was no requirement of referring the matter to CVC by the sanctioning authority, for getting its opinion before passing the sanction order, as has been urged by Ld.Defence Counsels.
102. Another facet to this argument advanced by Ld.Defence Counsels was that the sanction order is 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 of purview and jurisdiction of sanctioning authority to pass sanction for prosecution against C.C.No: 37 / 2011 Page No.63 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
other officers qua whom neither any investigations were done, nor any evidence was collected nor the sanction was sought.
103. Even otherwise, the Legislature in order to stop unjustified claims raised on behalf of public servant to derive undue advantage of requirement of sanction have incorporated Section 19(3) of Prevention of Corruption Act which if read with section 465 of Cr.P.C, makes it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent Court, unless in the opinion of the Court, a failure of justice has been occasioned.
104. Hon'ble Apex Court in a recent case titled "State of Bihar & Ors. vs. Rajmangal Ram" in Criminal Appeal No.708 of 2014, arising out of SLP (Crl.) No.8013 of 2012, decided on 31.03.2014 ; has held that the Sanction Order cannot be held to be invalid and proceedings cannot be C.C.No: 37 / 2011 Page No.64 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
interdicted without giving any finding to the effect that a failure of justice as a result thereof, has occasioned.
105. Merely because any error or irregularity has occurred in the sanction order, the same is not to be considered fatal, unless it results in failure of justice.
106. In the present case, as we are at the fagend of the trial and accused public servant have already undergone the trial, further I have not found any error or omission in the sanction order passed qua him by the sanctioning authorities resulting in any failure of justice.
107. Thus, I do not find any merits in the contentions advanced by Ld.Defence Counsels to challenge the authenticity of the sanction order ie. Ex.PW.1/A, which to my mind have been passed by the sanctioning authority with due and proper application of mind.C.C.No: 37 / 2011 Page No.65 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
108. Having held that the sanction for prosecution granted against the public servant was valid, I shall now delve upon the contentions of Ld.Defence Counsels on factual aspects, visavis the necessary ingredients of the offences, with which the accused persons were charged.
109. To better appreciate the deposition of prosecution witnesses in the light of contentions advanced, it is pertinent to chalk out the procedure for processing of "Marine Claims". The same as emanating out of material on record, in the form of documentary and oral evidence as per the deposition of PW10 N.K.Dutta, PW11 Gopa Sahu, PW3 A.K.Seth, PW4 A.L.Gambhir, PW6 A.K.Tiwari and PW7 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 C.C.No: 37 / 2011 Page No.66 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
seller to purchaser.
(b) These goods during the course of transportation, can be insured, for which Marine Open Policy is issued against premium.
(c) The seller is known as "consignor" whereas, its recipient or purchaser is known as "consignee".
(d) Either of the two, can pay the premium for taking the "Marine Insurance Policy" and the said party is known as "insured" whereas, the company is known as "insurer".
(e) At the time of taking the policy, the insured submits the proposal along with requisite documents on which insurer, calculates the premium and after collection of the premium, a Cover Note is issued.
(f) Thereafter, the insurer issues the "Insurance Policy".
(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.C.C.No: 37 / 2011 Page No.67 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(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.
110. In view of abovementioned duties and obligations which this public servant, being responsible officer of National Insurance Company, was required to fulfil, it is to be seen whether he had performed his duties, as was expected from him or whether the actions and omissions of his were laden with any dishonest intention, in order to cause any pecuniary advantage to their coaccused persons for which regard is to be had to the evidence that has come up on record. C.C.No: 37 / 2011 Page No.68 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
111. Prosecution evidence which has come up on record, visavis each of the accused facing trial is required to be considered. Conspiracy is the most pivotal part of the prosecution case, which is the primary charge against the accused persons, being axis around which revolves the other charges. As per the case of prosecution, the officers of NIC being public servants, had entered into a criminal conspiracy with the private persons, object of which was to cheat NIC.
112. It is contended by Ld.Prosecutor that the public servant 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, has facilitated the submission of same by or on behalf of the insured, to him on the basis of which the claim was passed, which led to release of payment by NIC to the private persons and thus he has caused pecuniary advantage to them and corresponding wrongful loss to NIC.
C.C.No: 37 / 2011 Page No.69 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
113. Ld.Public Prosecutor made an endeavour to invoke Section 10 of Indian Evidence Act. He, in order to buttress his arguments, contended that all the conspirators should be made constructively liable for the substantive offences committed, pursuant to the conspiracy on the basis of the "Principle of Agency". He contended that the public servants had entered into a conspiracy with the private persons, therefore the acts done by the private persons, pursuant to the conspiracy, in contemplation of law, should be treated as committed by each one of them, therefore all of them should be held responsible and liable for the same.
114. I have considered the submissions advanced by Ld.Public Prosecutor. In order to appreciate the same, it is pertinent to make mention of Section 10 of Indian Evidence Act, which reads as under : C.C.No: 37 / 2011 Page No.70 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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.
115. Bare perusal of this Section makes it evident that there is no such deeming provision in it, as has been contended by Ld.Prosecutor. No doubt, Section 10 rests on the 'Principle of Agency', but it lays down only a rule of relevancy. As per the provisions of this Section, anything done or said by one of the conspirators in reference to the common intention becomes "relevant fact" as against each of the conspirators, to prove two things : C.C.No: 37 / 2011 Page No.71 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(i) Existence of the conspiracy ; and
(ii) That, they were party to this conspiracy.
116. This has been held so by Privy Counsel in case titled "Mirza Akbar vs. King Emperor" reported as AIR 1940 PC 176. This interpretation has been followed by Hon'ble Apex Court in catena of decisions.
117. Hon'ble Mr.Justice Jagannath Shetty had analyzed this Section in case titled "Kehar Singh & Ors. v/s State (Delhi Administration)" reported as 1988 (3) SCC 609, as under : "From an analysis of the section, it will be seen that Section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his co C.C.No: 37 / 2011 Page No.72 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
conspirator. 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."
118. In view thereof, distinction was made between the conspiracy and the offence (s) committed, pursuant to the conspiracy. It is only in order to prove the existence of conspiracy and parties to the conspiracy, that this rule of evidence, can be put in service.
"Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy."C.C.No: 37 / 2011 Page No.73 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
119. In view thereof, I do not find any merits in the contentions advanced by Ld.Public Prosecutor as the "Theory of Agency" cannot be extended thus far, that is to say, to hold all the conspirators guilty of actual offence(s) committed in execution of common design, if such offence(s) were committed by one of them, without participation of others.
120. Whether or not, conspirators will be liable for substantive offence other than the conspiracy and if so, to what extent, has to be proved on record by the prosecution on the basis of evidence which, I shall be adverting to hereinafter.
121. However, before going that far, I would hasten to add that prosecution has first to establish that all the accused persons facing trial, were in fact party to the alleged conspiracy with which they have been charged. C.C.No: 37 / 2011 Page No.74 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
122. In an attempt to demolish the prosecution case, Sh.Ramesh Gupta, Ld.Senior Advocate along with Sh.C.L.Gupta, Sh.R.K.Kohli, Sh.H.S.Sharma and Sh.I.S.Kapoor, 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.
123. In support of their contentions, Ld.Defence Counsels had relied upon the law laid down in cases titled as under : C.C.No: 37 / 2011 Page No.75 of 194 Judgement in the matter of:-
CC No.: 37 / 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.
124. I have considered the submissions advanced and have perused the law laid down by Hon'ble Apex Court in the precedents relied upon by Ld.Defence Counsels. There is no denying the fact that Hon'ble Apex Court while holding that the offence of conspiracy is committed in secrecy and can be proved only by circumstantial evidence has held that these circumstances should be proved, beyond reasonable doubt, leading to the guilt of the accused.
C.C.No: 37 / 2011 Page No.76 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
125. Section 120A IPC defines "criminal conspiracy". Accordingly to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal, by illegal means such an agreement is designated as "criminal conspiracy".
126. In view of this definition, the gist of the offence is "an agreement to break the law". Parties to such an agreement are guilty of criminal conspiracy, though the illegal act agreed upon by them to be done, has not or could not be done. It is not necessary that all the parties to such an agreement should agree to do a single illegal act. It may comprise of commission of a number of acts. It is not necessary that all the conspirators must know each and every detail of the conspiracy.
127. Conspiracy is seldom an open affair. Its existence and objects can only be deduced from circumstances C.C.No: 37 / 2011 Page No.77 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
of the case and conduct of the accused, who are party to such conspiracy.
128. As Conspiracy has to be and can only be inferred from the physical manifestation of conduct of the conspirators / accused. Thus, to deduce actual meeting of minds amongst the accused person to find out transmission of thoughts, the actual words used by them during communication, are to be considered.
129. The conduct of the conspirators / accused are to be deciphered not only from the actual words spoken by them but also from their body language, mannerism and behaviour by which they intervene in the conversation taking place between the complainant and coaccused, as their state of mind has to be inferred on the basis of their conduct. C.C.No: 37 / 2011 Page No.78 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
130. Hon'ble Apex Court in case titled "V.C.Shukla vs. State" reported as 1980 (2) SCC ; had held that in most cases it will be difficult to get direct evidence of the crime, but conspiracy can be inferred even from circumstances giving rise to a conclusive or irrepressible inference of an agreement between two or more persons, committing an offence.
131. Hon'ble Apex Court in case titled "Noor Mohd. Yusuf Momin vs. State of Maharashtra" reported as AIR 1971 SC 885, has held : "...in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material." C.C.No: 37 / 2011 Page No.79 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
132. Hon'ble Apex Court in another case titled "John Pandian vs. State" reported as 2011 (1) Crimes SC 1, has further held : "...that there must be a meeting of minds resulting the ultimate decision, taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred even from the circumstances giving rise to a conclusive or irresistible inference of crime between the two or more persons to commit an offence. It was further held that a few bits here and a few bit there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy ."
133. For the purposes of considering the conduct of the accused persons so as to deduce about his complicity with the conspiracy, a "Rule of Caution" has been laid down by Privy Counsel in case reported as AIR 1954 PC 140 that : C.C.No: 37 / 2011 Page No.80 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
"In a joint trial care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against others".
134. In case titled "Alvin Krumlewitch v. United States of America" reported as (93 L.Ed. 790) ; it has been held by Justice Jackson that : "codefendant in a conspiracy trial occupies an uneasy seat" and "it is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together."
135. These words of caution were reiterated by Hon'ble Apex Court speaking through Hon'ble Mr.Justice D.P.Wadhwa in case titled "State vs. Nalini" reported as 1999 (5) SCC 253 ; that : C.C.No: 37 / 2011 Page No.81 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
"There is a need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that "there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy".
"It has been further held that criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy".
136. Hon'ble Apex Court in case titled "Esher Singh Vs. State of A.P." reported as 2004 (11) SCC 585 has held as under;
"A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused".C.C.No: 37 / 2011 Page No.82 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
137. Being aware of the fact that for the purposes of appreciating the evidence on record with respect to the allegations of conspiracy, the circumstances in which the accused acted, their actions and mannerism are required to be considered, which I shall look into, mindful of the words of caution laid down by Hon'ble Apex Court in above referred precedents.
138. In the present case, an open Marine Transit Policy Ex.PW.7/X6 (carbon copy of which is Ex.PW.11/A) was issued by DOXXIII in favor of M/s Kepco Industries to cover the consignment of one Tanker of Tolwin to be transported from Mumbai to Delhi . The claim was lodged by the claimant / insured on the basis of alleged loss / damage to the consignment purportedly sent by consignor M/s Leo Dye Chem Mumbai to M/s Kepco Industries, Delhi, the consignee / insured, through G.R.No.325 dated 27.04.1998 of M/s Shree C.C.No: 37 / 2011 Page No.83 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Durga Carriers. Intimation of loss / damage to consignment was purportedly given by the consignee to DOXXIII which was received by accused G.C.Gupta, on the basis of which surveyor was appointed and then claim was processed and approved.
139. In order to ascertain the authenticity and genuineness of transaction, the essential requisites are the existence of alleged consignor, sending of consignment and the existence of the transporter through whom the consignment was sought to be transported.
140. 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 Insurance Company by cheating it and thus causing wrongful loss to it.
C.C.No: 37 / 2011 Page No.84 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
141. 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 43 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 PW23 S.K.Kashyap by PW5 V.K.Bajaj vide seizure memo Ex. PW5/A.
142. 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 servants. This contention of Ld. Public Prosecutor is controverted by Ld. Defence Counsels on the ground that as complete chain of handing over of the file and its preservance C.C.No: 37 / 2011 Page No.85 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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.
143. I have considered the rival contentions and have perused the precedent relied upon in the light of evidence on record.
144. PW3 A.K.Seth during his cross examination did state that the claim files including Ex. PW3/2 were seized by his team and they had not carried out any other proceedings at the office of accused except seizing the files. He further stated that he cannot recollect from whose custody these files were seized. Similar version has come on record in the deposition of PW4 A.L.Gambhir and PW6 A.K.Tiwari the other officers of Vigilance team.
C.C.No: 37 / 2011 Page No.86 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
145. During his cross examination, PW23 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.
146. The prosecution evidence which has come up on record reveals that the present claim file Ex. PW3/2 was the record of DOXXIII of NIC where accused G.C.Gupta was 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 C.C.No: 37 / 2011 Page No.87 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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.
147. In view thereof, the precedent relied upon by Ld. Defence Counsels in "Anil Maheshwari's case" (Supra) decided by Hon'ble High Court of Delhi in almost similar case squarely applies on this aspect. Thus the contention of Ld. Public Prosecutor that in absence of required documents from the file Ex. PW3/2 the public servants be hauled up for passing the claim fraudulently, does not hold ground.
148. 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 C.C.No: 37 / 2011 Page No.88 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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.
149. Thus the documents in the claim file are the relevant and important ones to ascertain the charges with which accused persons have been charged.
No CONSIGNOR - No CONSIGNMENT :
150. As per the claim file Ex. PW3/2 vide letter dated 20.04.1998 Ex. PW7/X7 of M/s Kepco Industries, a request was made to National Insurance Company for issuance of a Transit Insurance Policy to cover the consignment of one C.C.No: 37 / 2011 Page No.89 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
tanker of Tolwin oil to be transported from Mumbai to Delhi.
On this letter premium was calculated and on deposit of premium, an insurance policy Ex. PW7/X6, carbon copy of which is Ex. PW11/A was issued.
151. As per claim file, alleged consignment of Tolwin oil from the alleged consignor M/s Leo Dye Chem., B126, Ghatkopar Industries Estate, L.B.S. Marg, Ghatkopar (W), Mumbai was sent to the insured / consignee i.e. M/s Kepco Industries through truck no. DEL2557, vide G.R.No. 325 dated 27.04.1998 of M/s Shree Durga Carriers. Further as per the other documents in claim file, it is alleged that the truck carrying the consignment had met with an accident resulting in loss of consignment which was reported to NIC. On the basis of this intimation accused G.C.Gupta had appointed accused Pramod Kumar Gupta as surveyor. Thereafter, claim was processed and approved. A cheque of claim amount of Rs. 2,29,649/ was disbursed which was deposited in account no. C.C.No: 37 / 2011 Page No.90 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
CA5061 of M/s Kepco Industries, authorized signatory of which is accused Praveen Kumar Kochhar.
152. It is alleged by the prosecution that the alleged consignor has never transacted with the insured / consignee M/s Kepco Industries nor had dealt with Tolwin oil, thus there was no consignment and the claim was obtained on the basis of fraudulent transaction, in support of which forged documents were filed.
153. Prosecution, in order to prove that there was no consignment, had examined PW24 IO R.P.Kaushal and PW19 Sh.H.C.Mehta, Proprietor of M/s Leo Dye Chem.
Besides that prosecution had examined PW3 A.K.Seth, PW4 A.L.Gambhir & PW6 A.K.Tiwari, members of the vigilance team of NIC, who proved their report as Ex. PW2/2. C.C.No: 37 / 2011 Page No.91 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
154. PW24 R.P.Kaushal, the Investigating Officer deposed that he during the course of investigations had directed S.I. Rekha Sangwan to verify about the invoice Mark 'X' which is at page 34 of the claim file Ex. PW3/2 from the alleged consignor. He deposed that Rekha Sangwan made inquiries from Proprietor of M/s Leo Dye Chem. and submitted her report alongwith letters Ex. PW19/A & Ex. PW19/B, written by Proprietor of M/s Leo Dye Chem. Nothing material emanated from the cross examination of Investigating Officer on this aspect of his having deputed S.I. Rekha Sangwan for doing the necessary verifications.
155. The most important witness of the prosecution is PW19 Sh.H.C.Mehta, Proprietor of M/s Leo Dye Chem. He during the course of his deposition had stated that he is in the profession of trading in chemicals under the name and style of M/s Leo Dye Chem., as its Sole proprietor.
He deposed that the invoice bearing no. 5665 dated 27.04.1998 C.C.No: 37 / 2011 Page No.92 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Mark 'X' does not belong to his firm and the same was never issued either by him or by any of his employees. He deposed that he had given a report to the police, copy of which is Ex.
PW19/A. He further proved his letter dated 13.05.2001 Ex.
PW19/B.
156. No doubt PW19 was cross examined on behalf of accused, during which he stated that he does not remember as to whether any specimen copies of the invoices used by his firm, were or were not taken in possession by CBI. He denied that Ex. PW19/A and Ex. PW19/B were falsely made by him at instance of CBI. Apart from that nothing material came out of his cross examination. His testimony thus remained unimpeached. No such suggestion that he is not the Proprietor of this firm was given to this witness.
157. Perusal of his deposition coupled with the letter Ex. PW19/A, makes it apparent that on inquiries made C.C.No: 37 / 2011 Page No.93 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
from him by S.I. Rekha Sangwan, PW19 categorically stated that this invoice does not belong to them. As per deposition of this witness and letter Ex. PW19/A it has come up on record, that they had never done any business with M/s Kepco Industries and the format of invoice Mark 'X' is not the one, which is being used by their company.
158. Further from the letter Ex. PW19/B, it is apparent that PW19 had made a complaint with Commissioner of Police, Mumbai, alleging therein that someone has misused the name of his company, by forging and creating invoice in the name of his company.
159. It has been contended by Ld. Defence Counsels that mere denial by PW19 without producing the "Books of Accounts" of his firm cannot establish on record that no consignment was sent.C.C.No: 37 / 2011 Page No.94 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
160. CHAPTER IV of The Indian Evidence Act, 1872, deals with "Oral Evidence" : The opening section of this Chapter is Section 59 which reads as under : SECTION 59 : PROOF OF FACTS BY ORAL EVIDENCE - All facts, except the (contents of documents or electronic records), may be proved by oral evidence.
161. Bare perusal of this Section, reveals that all facts except the contents of the documents may be proved by oral evidence. In view thereof, the oral deposition of PW19 being Proprietor / owner of a firm to prove a particular document purportedly to be of his firm, as to whether the same belongs to him or not, is sufficient.
162. Thus, I do not find any merits in this contention of Ld. Defence Counsels that without producing "Books of Accounts" oral testimony of PW19, cannot be C.C.No: 37 / 2011 Page No.95 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
accepted. To my mind, no documents were required to be placed on record by him to substantiate this deposition of his. It has not been disputed on behalf of accused persons that PW19 is not the Proprietor of M/s Leo Dye Chem.
163. Had this transaction between M/s Kepco Industries and M/s Leo Dye Chem. would have been genuine, then there must have been some correspondence or interaction between these two firms with respect to purchase of Tolwin oil and also with respect to payment against the said invoice.
However, no suggestion whatsoever was given to this witness on behalf of accused Parveen Kumar Kochhar with respect to any communication or interaction between them. Further, no imputations or motives were attributed to PW19 to have deposed falsely.
164. Having regards to these facts and circumstances coupled with the fact that PW19 himself had C.C.No: 37 / 2011 Page No.96 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
made a complaint with Commissioner of Police, vide letter Ex.
PW19/A. I have no reason to disbelieve him. His deposition appears to be reasonable, plausible and trustworthy.
165. In view thereof, prosecution has been able to establish that the invoice in question i.e. Mark 'X' which is at page no. 34 of the claim file Ex. PW3/2, is a forged invoice not belonging to M/s Leo Dye Chem. This proposition leads to the inference that no transaction between M/s Leo Dye Chem. and M/s Kepco Industries, the insured had taken place vide this invoice. Thus G.R. No. 325 dated 27.04.1998 of M/s Shree Durga Carriers, which has been made the basis for getting the claim, is a forged document as no such consignment was sent under the same.
C.C.No: 37 / 2011 Page No.97 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
NON EXISTENCE of M/s Shree Durga Carriers, the consignee :
166. As per the documents in the claim file Ex.
PW3/2, more particularly G.R. No. 325 which is at page no. 30 of the file, the address of Head Office of M/s Shree Durga Carriers is A105 A, Adhyapak Nagar, Nangloi, Delhi.
167. It is the case of the prosecution that no such firm by the name of M/s Shree Durga Carriers exist at this address. To substantiate this fact prosecution had examined PW24 Investigating Officer R.P.Kaushal, PW21 Inspector B.S.Bisht, PW17 Sonu Gupta, PW18 Shiv Charan and PW9 Mohan Mahto.
168. PW24 R.P.Kaushal, the Investigating Officer deposed that he for the purposes of verifying the existence of M/s Shree Durga Carriers had deputed Inspector B.S.Bisht. The deposition of PW24 to this extent was not controverted on C.C.No: 37 / 2011 Page No.98 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
behalf of accused persons.
169. Inspector B.S.Bisht appeared in the witness box as PW21. He deposed that pursuant to request of Investigating Officer for verification of M/s Shree Durga Carriers, he visited Post Office Nangloi, where he contacted the post man of the area namely Mohan Mahto and made inquiries from him regarding existence of M/s Shree Durga Carriers from A105 A, Adhyapak Nagar, Nangloi, Delhi. He deposed that thereafter he visited the area and made inquiries from the persons namely Sh. Sonu Gupta, Property Dealer and Sh. Shiv Charan, occupant of the property situated adjacent to A105, Adhyapak Nagar, Nangloi, Delhi. He deposed that on inquiry from those persons and on his visit he did not find any firm by the name of M/s Shree Durga Carriers existing and operating from A105, Adhyapak Nagar, Nangloi, Delhi. C.C.No: 37 / 2011 Page No.99 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
170. He was cross examined on behalf of accused Praveen Kumar Kochhar, during which he denied the suggestion that he never visited the area and has given a wrong report while sitting in his office and after getting to know the names and addresses of the witnesses through his staff. He admitted that he had not taken any proof of identity of the persons from whom he had made inquiries.
171. Merely because PW21 Inspector B.S.Bisht had not taken any document in possession regarding identity of the persons examined by him, does not make his deposition untrustworthy, as on that basis itself, it cannot be inferred that he had not personally visited the area for verification. Even otherwise, this contention raised by Ld. Defence Counsels that had PW21 visited the area, he would have collected the identity proof of the persons examined by him, is devoid of any merits, as those witnesses themselves appeared in the witness box and deposed that inquiries were made from them by CBI, C.C.No: 37 / 2011 Page No.100 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
regarding existence of M/s Shree Durga Carriers.
172. PW17 Sonu Gupta appeared and deposed that he is a Property Dealer operating from A86, Adhyapak Nagar, Nangloi and being in this profession, he is aware of the entire area, as he has facilitated number of transactions with respect to immovable properties. He deposed that he cannot say with certainty as to whether any firm by the name and style of M/s Shree Durga Carriers was functioning from property no. A105, Adhyapak Nagar, Nangloi, Delhi, during 19942000. On being cross examined he denied the suggestion that accused Ashok Kumar Kochhar is running a transport business from this premises.
173. PW18 Shiv Charan, a businessmen and being occupant of a premises situated near A105, Adhyapak Nagar, Nangloi, had deposed that CBI visited the area and made inquiries. He deposed that he had not seen any board by the C.C.No: 37 / 2011 Page No.101 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
name of M/s Shree Durga Carriers over the property A105 A, Adhyapak Nagar, Nangloi, which is in occupation of Praveen Kumar Kochhar. On being cross examined, he denied the suggestion that M/s Shree Durga Carriers was being run from A105 A, Adhyapak Nagar, Nangloi, Delhi.
174. Besides the owners / occupiers of the adjoining properties, who being businessmen are running their respective businesses from their properties, prosecution had examined PW9 Mohan Mahto, the post man of the area. This witness deposed that he remained posted with Nangloi Post Office from 1991 to 2004 and his duty was of distribution of Dak in Adhyapak Nagar. He deposed that he had told CBI that no business in the name of M/s Shree Durga Carriers was being run from A105, Adhyapak Nagar, Nangloi, Delhi and he had never distributed any Dak or letter in the name of this firm at this address.
C.C.No: 37 / 2011 Page No.102 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
175. He, however, deposed that this property is in occupation of accused Ashok Kumar Kochhar. On being cross examined, he correctly identified accused Ashok Kumar Kochhar. He denied the suggestion that Ashok Kumar Kochhar was running the firm by the name of M/s Shree Durga Carriers from this address.
176. It is apparent from deposition of these independent witnesses, who being postman and the occupier of the adjoining properties had no interest for, or against any of the parties. Further during the course of cross examination of these witnesses no motive whatsoever was imputed or attributed to them for their deposing so.
177. Having regards to these facts and considering that these witnesses having no apparent animosity against accused persons, had deposed correctly, I have no reason to doubt the authenticity of the version given by them, during C.C.No: 37 / 2011 Page No.103 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
trial.
178. It is contended by Sh. R.K.Kohli, Ld. Defence Counsel that merely because these witnesses never came across or heard the name of any firm, that does not necessarily mean that the said firm is not in existence.
179. Though, I find some force in this contention of Ld. Defence Counsel but that does not take away the efforts put in by the Investigating agency and prosecution to put forth a particular fact. It is easier to prove and establish a positive fact i.e. existence of something but it is very difficult to prove a negative or nonexistence of something. For that you can have 'n' number of witnesses, but a possible objection can still come that probably n + 1st witness, if examined might have deposed otherwise.
C.C.No: 37 / 2011 Page No.104 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
180. To obviate this situation, it is to be seen as to whether prosecution had examined the best witnesses or not.
181. To my mind prosecution has done exactly that. In order to prove existence or nonexistence of a firm / shop operating from a particular area, the best witnesses would have been none other than the businessmen or persons engaged in their respective businesses from that locality. The witnesses examined by the prosecution namely PW17 Sonu Gupta and PW18 Shiv Charan, being in occupation of the premises situated adjoining to Property No.A105 A, Adhyapak Nagar (Nangloi) Delhi, were in a best position to depose about existence or non - existence of a firm allegedly functioning from their neighbourhood.
182. Besides that prosecution had examined post man of the concerned area, who by virtue and nature of his official duties, become conversant with all the establishments C.C.No: 37 / 2011 Page No.105 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
operating in the area, wherein he used to distribute the dak to the establishments / firms / properties situated in that area. In the present case, it is apparent that PW9 being post man was also aware of the fact that this property is in occupation of Ashok Kumar Kochhar. He, however, had categorically deposed that no business by the name of M/s Shree Durga Carriers was being run from this property. From his deposition, the knowledge and awareness about the occupiers of the premises in question is apparent, which makes his deposition more plausible and trustworthy.
183. Thus, from the deposition of these witnesses prosecution has been able to establish that no firm by the name of M/s Shree Durga Carrier existed from A105 A, Adhyapak Nagar, Nangloi, Delhi.
184. The resultant inference is that G.R.No. 325 dated 27.04.1998 is a false and forged document. This fact also C.C.No: 37 / 2011 Page No.106 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
emanates from what has already been held by me hereinabove, that no consignment was sent, purported to have been carried through this G.R. of M/s Shree Durga Carriers.
185. Thus, the present transaction of getting a Marine Insurance Cover for a nonexistent consignment, allegedly sent through a nonexistent carrier was a fraudulent transaction, carried with the intention to cheat NIC for getting a Marine Claim on the basis of false and forged documents.
186. Having held so and in the back drop of above, I shall consider the prosecution evidence which has come up on record vis a vis rival contentions advanced by Ld. Defence Counsels, as per the case of each accused. C.C.No: 37 / 2011 Page No.107 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Case qua accused PRAVEEN KUMAR
KOCCHAR:
187. Prosecution through deposition of PW11 Gopa Sahu proved on record that a Marine Transit Insurance Ex.
PW7/X6 (Carbon copy of which is Ex.PW.11/A) was issued in favour of M/s Kepco Industries, to cover a consignment of "Tolwin Oil" purportedly to be sent from Mumbai to Delhi. It is also admitted position on record that an application Ex.PW. 6/DX6 was filed by M/s Kepco Industries, intimating loss to the consignment. Pursuant thereto, claim form Ex.PW.7/X5, was filed by M/s Kepco Industries, wherafter the claim note Ex.PW7/X3 was processed by PW7 Madan Lal Meena and was approved by accused G.C.Gupta for a sum of Rs.2,29,649/ in favour of M/s Kepco Industries.
188. Through deposition of PW7, PW15 & PW13 it is apparent that after approval of the claim, the cheque Ex. PW13/A in favour of M/s Kepco Industries was prepared by C.C.No: 37 / 2011 Page No.108 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
PW15 and was signed by Sh.R.D.Chugh and Sh.S.K.Goel, the authorized signatories of NIC.
189. Prosecution through deposition of PW12 has proved that the cheque of claim amount was handed over to M/s Kepco Industries vide voucher Ex. PW12/A. Further through the deposition of PW16 Sh.S.K.Mukhi from Punjab National Bank, Tri Nagar, Delhi, it is proved that the said cheque was deposited in account of M/s Kepco Industries bearing Account No. CA5061 vide pay in slip Ex. PW16/D and relevant credit entry of realization of the claim cheque proceeds, are in statement of account Ex. PW16/E. Corresponding debit entry of this cheque of claim Ex. PW13/A was proved by PW14 Sh. R.Vaidyanathan, from the banker of NIC vide statement of account of NIC Ex. PW14/DX.
190. Meaning thereby that on the basis of claim form, Claim bill and supporting documents furnished by M/s C.C.No: 37 / 2011 Page No.109 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Kepco Industries, the insured, as are there in claim file Ex.
PW3/2, the claim was processed, passed and its proceeds ultimately landed in the bank account of this firm.
191. Ld. Public Prosecutor in his quest to connect accused Praveen Kumar Kochhar to be Proprietor of M/s Kepco Industries and thus the beneficiary of this claim amount, has raised two fold arguments.
192. It is contended by Ld.Public Prosecutor that all the documents including the Letter for issuance of Insurance Policy, Loss intimation, Claim Form etc., were submitted with NIC alongwith the supporting documents by accused Praveen Kumar Kochhar, as Proprietor of M/s Kepco Industries. He contended relying upon the report of Expert Witness Ex.PW.27/X2 and Ex.PW.27/X5, that signatures on all these documents are of accused Praveen Kumar Kocchar, as Proprietor of M/s Kepco Industries. His next contention was C.C.No: 37 / 2011 Page No.110 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
that the Claim Proceeds of the cheque which was obtained on the basis of false and forged documents, landed in the current account no.5061 which was opened and operated by accused Praveen Kumar Kochhar, as Proprietor of this firm.
193. To counter this contention of Ld. Public Prosecutor, Sh. I.S. Kapoor, Ld. Defence Counsel contended through his written arguments that merely on the basis of report given by the handwriting expert Ex.PW.27/X2 and Ex.PW.27/X5, accused Praveen Kumar Kochhar cannot be fastened with any criminal liability.
194. 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. PW23 S.K.Kashyap is silent as to whether any permission from the Court was taken, before taking specimen signatures of accused Praveen Kumar Kochhar. He C.C.No: 37 / 2011 Page No.111 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
contended that PW24 R.P.Kaushal during his cross examination had admitted that no permission from Court was taken for taking specimen signatures of accused. Therefore, the same cannot be used for any purpose whatsoever, including for getting the same compared with questioned signatures.
195. 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"
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.
196. 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 PW20 i.e. Ex/PW.27/X2 and Ex.PW.27/X5 are not admissible and cannot be relied C.C.No: 37 / 2011 Page No.112 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
upon against accused Praveen Kumar Kochhar. Ld.Defence Counsel had contended that by asking for specimen signatures and obtaining them under compulsion, accused cannot be made a witness against himself.
197. I have perused the deposition of PW23 S.K.Kashyap including his cross examination conducted on behalf of accused Praveen Kumar Kochhar. It is apparent on perusal of same, that PW23 during his examination in chief had not stated to have taken permission from the Court for obtaining specimen signatures of accused Praveen Kumar Kochhar. Further, from cross examination of PW24 R.P.Kaushal it is apparent that before taking specimen signatures, no permission from the court was obtained. 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. C.C.No: 37 / 2011 Page No.113 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
198. I do not find any merits in this contention of Ld. Defence Counsel as merely by taking the specimen signatures of an accused person during the course of investigations, the Investigating officer can by no stretch of imagination be held as asking him to stand as a witness against himself. Scientifically it is established that the impression of finger prints and handwriting of any individual does have such intrinsic qualities which no one can willfully change. The use of specimen signatures / handwriting of a person becomes important for any investigating agency to have it compared with the questioned signatures / handwriting just to corroborate the line of investigation which the investigating agency otherwise is carrying forward to unearth the truth in the case in hand.
199. The precedents relied upon by Ld. Defence Counsel in support of his contentions does not come to his C.C.No: 37 / 2011 Page No.114 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
rescue in view of the law laid down by Hon'ble Apex Court in case titled "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.
200. In the other judgment relied upon by Ld. Defence Counsel of Hon'ble High Court of Delhi, the law laid down by Hon'ble Apex Court in Dara Singh's Case (Supra) was not considered as the said judgment was not quoted before Hon'ble High Court, in Sapan Haldar's Case (supra).
201. 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 C.C.No: 37 / 2011 Page No.115 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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 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 C.C.No: 37 / 2011 Page No.116 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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 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 C.C.No: 37 / 2011 Page No.117 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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 oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony'.C.C.No: 37 / 2011 Page No.118 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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.
4. Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of C.C.No: 37 / 2011 Page No.119 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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."
202. 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 C.C.No: 37 / 2011 Page No.120 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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.
203. In the present case, it is apparent from the prosecution evidence led on record more particularly in view of the deposition of PW23 and PW24, that specimen signatures and handwriting of accused Praveen Kumar Kochhar were obtained by the Investigating officer which accused had voluntarily given. There was no suggestion from the accused to PW23 S.K.Kashyap and PW24 R.P.Kaushal, that he was forced by him being Investigating Officer to give specimen handwriting and signatures.
C.C.No: 37 / 2011 Page No.121 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
204. The Investigating officer PW24 R.P.Kaushal also during the course of his deposition had stated that accused Praveen Kumar Kochhar, in presence of independent witness, has given his specimen signatures and handwriting Ex.PW. 24/J. This leaves me with no ground to doubt that specimen signatures of the accused were obtained from him under any pressure, threat or duress.
205. In view of above, the contention raised by Ld. Defence Counsel that the report of expert Ex. PW27/X2 and Ex.PW.27/X5 cannot be relied upon, is turned down.
206. Prosecution thus has been able to establish on the basis of expert report Ex.PW.27/X2 and Ex.PW.27/X5, that the signatures on the Application for issuance of policy Ex.PW7/X7 ; the Insurance Policy Ex.PW7/X6 ; the Claim Form Ex.PW.7/X5 ; Claim Bill at page no.32 of the File C.C.No: 37 / 2011 Page No.122 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Ex.PW.3/2 ; Notice to the Carrier which is at Page No.31 of the file Ex.PW.3/2 ; Disbursement Voucher Ex.PW.12/A vide which the cheque of the claim amount was received as well as receipt thereof which is at Page No.19 of the claim file; are of accused Praveen Kumar Kochhar. Even otherwise, on bare perusal of specimen signatures of Praveen Kumar Kochhar and comparing it with the signatures on the documents in claim file Ex.PW.3/2, the similarities are so apparent which leads to the only inference that it was him, who had signed all these documents lodging the claim with NIC, and getting the same approved and receiving the cheque of the claim amount.
207. This has brought me down to the most important argument raised on behalf of prosecution, with respect to the most important link between the accused Praveen Kumar Kochhar and the fraudulent claim amount. C.C.No: 37 / 2011 Page No.123 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
208. It is contended by Ld. Pubic Prosecutor relying upon depositions of PW16 Sh.S.K.Mukhi, the witness from Punjab National Bank, Tri Nagar Branch, that it was accused Praveen Kumar Kochhar who as Proprietor of M/s Kepco Industries, had opened current account no. 5061, in which account the cheque of claim proceeds was deposited.
209. Countering these contentions, it is submitted by Sh.I.S.Kapoor, Ld. Defence Counsel that prosecution through its witness, has failed to connect accused Praveen Kumar Kochhar with this account. He contended that someone else might have opened this bank account using the name and photograph of accused, which investigating agency has failed to detect. He contended that no pecuniary advantage was caused to his client.
210. I have considered the rival contention and have perused the deposition of prosecution witnesses and have C.C.No: 37 / 2011 Page No.124 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
also gone through the documentary evidence on record coupled with statement of accused Praveen Kumar Kochhar recorded under section 313 Cr.PC.
211. It is evident that PW16 Sh.S.K.Mukhi, being officer of Punjab National Bank, Tri Nagar, Delhi had deposed that he on being authorized by the then Manager, vide Ex. PW16/A had submitted the account opening form Ex.PW.16/B, of M/s Kepco Industries which was opened through its Proprietor Praveen Kumar Kochhar, to IO. He had also handed over the specimen signature card Ex.PW.16/C pertaining to this current account no. CA 5061, to the Investigating Officer.
212. He deposed that the pay in slip vide which cheque of Rs.2,29,649/ i.e. claim amount was deposited in this account is Ex. PW16/D. He also proved the certified copy of statement of account Ex. PW16/E which reflects a credit entry C.C.No: 37 / 2011 Page No.125 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
with respect to this cheque. He deposed that this account was closed on 07.01.1999.
213. No doubt, PW16 was cross examined on behalf of the accused persons, during which he admitted the fact that this account was opened prior to his joining this bank and that he does not have any personal knowledge with respect to same. He contended that whatever he has deposed, the same is on the basis of the records, maintained by the bank.
214. It is contended by Ld.Defence Counsel that prosecution has failed to examine the concerned officer of the bank, in whose presence, this current account was opened. He contended that as PW16 was not posted in this bank, at the time when this current account was opened, therefore this deposition for proving that it was accused Praveen Kumar Kochhar, who opened the same as Proprietor of M/s Kepco Industries, cannot be accepted.
C.C.No: 37 / 2011 Page No.126 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
215. I do not find any merits in this contention of Ld.Defence Counsel. Prosecution had examined the best available witness to establish the nexus between accused Praveen Kumar Kochhar and the account wherein, the cheque of the claim proceeds landed. The same was to be done on the basis of documentary evidence which were being maintained by the bank in ordinary course of its business. Whenever any document which is prepared by any bank in ordinary course of its business and is maintained so, the same can be proved by the officer of the bank having domain over the said document by virtue of his posting. As per the provisions of Indian Evidence Act, it is not mandatory to have the document prepared during the ordinary course of business of the bank, proved only through the officer during whose tenure, it was prepared.
C.C.No: 37 / 2011 Page No.127 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
216. If the contention of Ld.Defence Counsel is accepted, then no document prepared and maintained by the bank during the regular course of its business, can be proved in evidence before any Court of Law, as at times, it becomes difficult to examine the concerned officer during whose tenure the said document was prepared, owing to his retirement, non availability, death, or some other reasons.
217. PW16 through his deposition has categorically deposed that the Account opening form ; specimen signatures card ; pay in slip and certified copy of statement of account Ex.PW.16/B to Ex.PW.16/E, records of the Bank, were being maintained in the regular course of business of the bank. No suggestion whatsoever was given on behalf of the accused persons to PW16, that these records which he had handed over to the investigating officer, were forged and fabricated. C.C.No: 37 / 2011 Page No.128 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
218. Even if, this suggestion would have been given to this witness, it is hard to imagine or visualize any reason with the bank officials, having no positive or negative connections with any of the parties, to have manipulated the bank records. However, that visualization is not required as no such suggestion was put to this witness.
219. No doubt, Ld.Defence Counsel had put across a suggestion to PW23 S.K.Kashyap that someone had wrongly opened this bank account, using name and photograph of accused Praveen Kumar Kochhar, which ofcourse was denied by this witness. He had also given a suggestion to PW24 that the account of M/s Kepco Industries was not opened by accused Praveen Kumar Kochhar, which was denied by PW24 R.P.Kaushal.
220. Merely by putting a suggestion to the investigating officers that someone else had opened this bank C.C.No: 37 / 2011 Page No.129 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
account using name of accused Praveen Kumar Kochhar, is of no help and assistance to the accused, as the investigating officers were not the ones who had either been associated with the opening of this account, or were the custodian of these bank records.
221. On bare perusal of the account opening form Ex.PW.16/B as well as the specimen signatures card Ex.PW. 16/C, it is apparent that there is photograph of accused Praveen Kumar Kochhar on both these documents. Consiering the fact that authenticity of these documents has not been challenged or refuted on behalf of the accused, as no such suggestion was put forth to PW16 Sh.S.K.Mukhi, I am of the considered opinion that the same were prepared and preserved by the bank during the regular course of its business, as per the normal business activity. C.C.No: 37 / 2011 Page No.130 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
222. I do not find any merits in this contention of Ld.Defence Counsel that someone else might have opened this bank account, using name and photograph of accused Praveen Kumar Kochhar. Had that been the situation, the concerned bank officer authorizing the opening of this bank account, must have noticed the discrepancy between the photograph and the person opening the bank account and would not have allowed the opening of same at the first instance.
223. That being the position, it leads to unerring conclusion that it is accused Praveen Kumar Kochhar who is the account holder of account no. CA 5061 as Proprietor of M/s Kepco Industries.
224. I am fortified to arrive at this inference as this accused has not given any suggestion to PW16, the witness from the bank, that it was not him but someone else using his name and photograph has opened this account. C.C.No: 37 / 2011 Page No.131 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
For the first time, he during his statement under section 313 Cr.PC disowned this account, stating that he had not opened the same.
225. No doubt, provision under section 313 (3) of Code of Criminal Procedure gives him a right to evade any question or even to give false reply to the same. However, Sub section 4 of section 313 Cr.PC empowers the Court to use the answers given by him in his statement.
226. Accused Praveen Kumar Kochhar while dis owing this bank account during his statement under section 313 Cr.PC has not stated to have lodged any complaint either with police or any other investigating agency even after coming to know the existence of this account, stating that his name and photograph is being wrongly used. Had there been any semblance in his claim, he would have lodged the report or at least would have informed the bank about such misuser. But C.C.No: 37 / 2011 Page No.132 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
that was not to be.
227. Neither any report was placed or proved on record by him during his defence evidence, to substantiate his claim that it was not him, but someone else using his name and photograph, had opened this account and operated the same.
228. Even otherwise, this contention of Ld. Defence Counsel that someone else using the name and photograph of accused Praveen Kumar Kochhar had obtained the fraudulent claim amount from NIC, does not appeal to reason. The same is improbable and unrealistic.
229. On bare perusal of Ex. PW16/B ; Ex.PW.16/C and Ex.PW.16/E, coupled with deposition of PW16 it is evident that this account of M/s Kepco Industries was opened on 19.02.1998 and was closed on 07.01.1999.C.C.No: 37 / 2011 Page No.133 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
230. It is apparent on perusal of the statement of account Ex.PW.16/E of this period that during the entire duration of this bank account, there are only 2 credit entries, one immediately on the following day of opening of this bank account and second is of 03.07.1998 when the claim proceeds of the cheque Ex.PW.13/A from NIC was credited in this bank account. Rest of the entries reflects that there are constant withdrawals by the account holder through "self cheques" of the amount which came in this bank account, through these two entries. The same on the face of it, reflects that this account was opened by accused Praveen Kumar Kochhar, only for the purposes of having the same to get the proceeds of the fraudulent claim deposited therein.
231. Had it been otherwise, the entries in this account would have reflected the business activities of the firm M/s Kepco Industries. But that is not so.C.C.No: 37 / 2011 Page No.134 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
232. For these reasons, I am of the opinion that it was accused Praveen Kumar Kochhar only who being the account holder had opened it as Proprietor of M/s Kepco Industries. His plea of disowing this bank account is an afterthought and raised just to make an attempt to escape from criminal liability.
233. As has already been held by me that the amount of cheque Ex. PW13/A issued by NIC with respect to this transaction was credited in this account, therefore, the contention of Ld. Defence Counsel that no pecuniary advantage had accrued to accused Praveen Kumar Kochhar is turned down .
234. Further it is apparent on bare perusal of the signatures on the documents which are at Page Numbers 6, 13, 18, 19,22, 28, 31, 32 and 42 of the claim file Ex.PW3/2 and C.C.No: 37 / 2011 Page No.135 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
comparing it with the ones, on the account opening form Ex.
PW16/B ; specimen signature card Ex.PW.16/C; his specimen signatures taken during the course of investigations and signatures on the bail bond and Vakalatnama furnished by him in Court, the similarities are so apparent which leads to the only inference that it was him, who had signed the account opening form and specimen signature card and the documents for lodging the claim with NIC on the basis of a consignment, which was never sent.
235. Prosecution thus has been able to establish that it was accused Praveen Kumar Kochhar who as Proprietor of M/s Kepco Industries had submitted false claim documents and other supporting documents, knowing or having reasons to believe the same to be forged ones and used them as genuine, with intention to cheat the Insurance company.C.C.No: 37 / 2011 Page No.136 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
236. He being the 'principal beneficiary' was aware of each and every step of the conspiracy and with help and assistance of coconspirators he managed to cause wrongful gain to himself and wrongful loss to NIC by getting a claim on the basis of false and forged documents, which he submitted with NIC, knowing or having reasons to believe to be forged ones.
Case qua accused PRAMOD KUMAR
GUPTA:
237. Prosecution case as per evidence which has come up on record, is that pursuant to letter from insured M/s Kepco Industries India, Ex.PW.6/DX1, which is at Page No.2 of Claim File Ex.PW.3/2, accused G.C.Gupta, vide his endorsement dated 04.05.1998, had appointed accused Pramod Kumar Gupta, to conduct survey. It is apparent from Ex.PW.
6/DX1, that accused Pramod Kumar Gupta, had acknowledged C.C.No: 37 / 2011 Page No.137 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
his appointment as surveyor in this case vide his signatures on this very letter, on that very date ie. 04.05.1998.
238. Accused Pramod Kumar Gupta, being appointed as "surveyor" was required to assess the loss with respect to the alleged consignment of "Tolwin Oil" purportedly sent by M/s Leo Dye Chem Mumbai, to M/s Kepco Industries through tanker number DEL2557 of M/s Shree Durga Carriers. The survey report dated 14.05.1998 Ex.PW.6/DX2, is there from Page No.38 to Page No.41 of the Claim File Ex.PW.
3/2 submitted by accused Pramod Kumar Gupta, alongwith the photographs of the said tanker Ex.PW.6/DX3 to Ex.PW.6/DX8 which are at Page Nos. 35 to 37 of the Claim File.
239. Perusal of this survey report which has not been disputed by accused Pramod Kumar Gupta to have been signed and submitted by him, reveals that the same finds mention of Invoice No.5665 dated 27.04.1998 which is at Page C.C.No: 37 / 2011 Page No.138 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
34 of the Claim File Ex.PW.3/2. Besides that, it also finds mention of GR / LR No.325 of M/s Shree Durga Carriers, copy of which is at Page No.30 of the Claim File Ex.PW.3/2.
Meaning thereby that Pramod Kumar Gupta, being surveyor was aware of the material particulars of the alleged consignment including the nature of consignment, name and address of the consignor as well as of the consignee / insured. Besides that, he was also aware of the tanker number, as well as the name and address of the transporter.
240. Perusal of this survey report submitted by accused Pramod Kumar Gupta, it is evident that he had reported that Tanker No. DEL2557, carrying the above consignment consisting of 10 metric tonnes of Tolwin Oil, had met with an accident at Daruheda. Accused Pramod Kumar Gupta thereafter claimed that the said tanker after being brought back on its wheels through a crane, was weighed at Om Dharam Kanta, Daruheda and thereafter its empty weight C.C.No: 37 / 2011 Page No.139 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
was taken at Mahalaxmi Dharam Kanta, Mansarovar Garden, Delhi. The survey report reveals that after getting the difference of these two weights, the loss to the consignment of Tolwin Oil was assessed by accused Pramod Kumar Gupta, to be of 8707 Kilograms.
241. It has already been held by me hereinabove that M/s Leo Dye Chem, Proprietorship of PW19 H.C.Mehta had not sent any consignment of "Tolwin Oil" to M/s Kepco Industries through Tanker No. DEL2557, of M/s Shree Durga Carriers, as they never dealt with Tolwin Oil nor had any dealings with M/s Kepco Industries. Meaning thereby that there was no consignment in question. Further, it has also been held by me hereinabove, that no transporter by the name of M/s Shree Durga Carriers, through whom the alleged consignment was purported to be transported, was in existence. C.C.No: 37 / 2011 Page No.140 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
242. Thus, the survey report submitted by accused Pramod Kumar Gupta, was false and fabricated. There seems to be no connection with the alleged consignor and the purported consignment of "Tolwin Oil" sent to the consignee / insured through Truck / Tanker No. DEL - 2557.
243. Apart from above, the survey report submitted by Pramod Kumar Gupta, refers to the weighment of this tanker with some of the contents of the consignment vide weighment receipts of Om Dharam Kanta, Daruheda and the weighment receipts of the empty weight of this tanker at Mahalaxmi Dharam Kanta, Mansarover Garden.
244. So far as the receipt of Om Dharam kanta is concerned, which though is exhibited as Ex.PW.7/X and is at Page No.5 of the claim file Ex.PW.3/2, the same as per the report of the Vigilance Team of NIC Ex.PW.2/2, proved on record by PW3 Sh.A.K.Seth, PW4 A.L.Gambhir and PW6 C.C.No: 37 / 2011 Page No.141 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
A.K.Tiwari is false and fake. However, as no witness from this Dharam Kanta was examined by the prosecution during the course of trial, therefore merely on the basis of deposition of PW3, PW4 and PW6, coupled with the Vigilance Report Ex.PW.2/2, it cannot be held that the receipt Ex.PW.7/X is a false and forged receipt.
245. With respect to the weighment slips of Mahalaxmi Dharam Kanta Ex.PW.22/B and Ex.PW.22/C which are at Page No.3 and 4 of the Claim File Ex.PW.3/2, prosecution had examined PW22 Sh.B.S.Taneja of M/s Mahalaxmi Dharam Kanta. This witness had deposed that he was having a Dharam Kanta in operation from 1978 from Property No.C31 Mansarovar Garden by the name of "Mahalaxmi Dharam Kanta" which remained operational till 1990. He deposed that thereafter he discontinued with the same and they started running a furniture showroom from said property. This witness went on to depose that pursuant to C.C.No: 37 / 2011 Page No.142 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
inquiries made by CBI, he had given letter Ex.PW.22/A. He deposed that the receipts Ex.PW.22/B and Ex.PW.22/C does not pertain to his Dharam Kanta and are forged ones.
246. No doubt, this witness was cross examined on behalf of the accused but nothing material came out of his cross examination, so as to discredit the version given by him on record. He denied the suggestion that the letter Ex.PW.22/A was got typed by CBI themselves. He denied the suggestion that the said letter was dictated to him by CBI. He also denied that his Dharam Kanta remained operational till 1998.
247. On perusal of deposition of this witness, coupled with the letter dated Ex.PW.22/A given by him during the course of investigations, I do not see any reason to doubt the version given on record by him. No motive whatsoever was attributed to this witness to depose so. Even otherwise, from the record, I do not see any positive or negative connection of C.C.No: 37 / 2011 Page No.143 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
this witness, with any of the parties. Thus, he had no apparent reason to depose falsely. Had the two receipts Ex.PW.22/B and Ex.PW.22/C been genuinely issued by his Dharam Kanta, he had no reasons to disown the same as by accepting it, no liability was falling on him.
248. In view thereof, I am of the considered opinion that these two Dharam Kanta Receipts Ex.PW.22/B and Ex.PW.22/C, which were relied upon by accused Pramod Kumar Gupta, in his survey report being false and forged ones fortifies,my conclusion that the survey report so submitted by the surveyor is palpably false.
249. The reasons for filing of this false report by accused Pramod Kumar Gupta, are not far to seek. He did so, being in complicity with the claimant / insured Praveen Kumar Kochhar of M/s Kepco Industries. Had that been not so, the surveyor Pramod Kumar Gupta, should have given genuine C.C.No: 37 / 2011 Page No.144 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
and correct report.
250. Next contention urged by Ld.Defence Counsel Sh.H.S.Sharma, Advocate to defend the survey report relying upon the cross examination conducted by him of PW24 R.P.Kaushal, was that he had failed to make any investigations from PS Daruheda with respect to the said accident. Ld.Defence Counsel had contended that PW24 during his cross examination had admitted that vide copy of letter Ex.PW.6/DX, a report was lodged with PS Daruheda about this accident. He contended that IO deliberately had not conducted investigations on this aspect from PS Daruheda.
251. I do not find any merits in this contention of Ld.Defence Counsel, in view of the observation made by me hereinabove, that neither any consignment was sent, nor the transporter M/s Shree Durga Carriers, were in existence from the given address. Therefore, there being no consignment, C.C.No: 37 / 2011 Page No.145 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
thus, there is no question of any loss to the same. In view thereof, the explanation given by PW24 during his cross examination of his having not making inquiries from PS Daruheda, considering that transporter was not in existence, seems to be plausible.
252. Having regards to the above discussion on the basis of evidence which has come up on record, it is evident that there was no consignment and thus there is no question of any loss to it by way of accident of the tanker as claimed by the accused persons. In conspectus of these circumstances, I do not find merits in this contention of Ld. Defence Counsel Sh. H.S.Sharma, Advocate that as IO had not made enquiries from P.S. Dharuhera regarding information of accident Ex. PW6/DX, therefore, prosecution case must fail is turned down being devoid of any force.
C.C.No: 37 / 2011 Page No.146 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
253. 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.
254. In view of above, the argument raised by Ld.Defence Counsel ShH.S.Sharma, Advocate on behalf of accused Pramod Kumar Gupta, that the report of surveyor is not binding and Insurance Company need not rely on the same for settling a claim, to my mind is devoid of any logic and merits and thus it cannot be accepted.
255. 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 C.C.No: 37 / 2011 Page No.147 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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.
256. This has led me to the next contention urged by Sh.H.S.Sharma, Advocate, Ld.Defence Counsel on behalf of accused Pramod Kumar Gupta on Legal aspect. He contended that as the report Ex.PW6/DX2 dated 14.05.1998 which is at Page No.38 to 41, is given by his client Pramod Kumar Gupta under his signatures, 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.
257. For the purposes of appreciating this contention of Ld.Defence Counsel for accused Pramod Kumar C.C.No: 37 / 2011 Page No.148 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Gupta, 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.
SECTION - 464 I.P.C : Making a false document A person is said to make a false document or false electronic record C.C.No: 37 / 2011 Page No.149 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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 such alteration; or Thirdly Who dishonestly or fraudulently causes any person to sign, seal, execute or C.C.No: 37 / 2011 Page No.150 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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.
258. Relying upon this definition of "Making false document", Sh.H.S.Sharma, Advocate, Ld.Defence Counsel had contended, that it was not the case of the prosecution that Pramod Kumar Gupta made this document i.e. report Ex. PW6/DX2 dated 14.05.1998 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 surveyor, knew that it was not made and therefore document i.e. survey report, did not amount to forgery.
C.C.No: 37 / 2011 Page No.151 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
259. It is true that on the face of it, document i.e. survey 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.
260. 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.
261. I have considered the rival submissions and have perused all the illustrations appended to Section 464 IPC. C.C.No: 37 / 2011 Page No.152 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
262. 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: 37 / 2011 Page No.153 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
263. 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.
264. 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: 37 / 2011 Page No.154 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
265. 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.
266. 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.
C.C.No: 37 / 2011 Page No.155 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
267. In view thereof, I do not find any merits in this argument of Ld.Defence Counsel, that the survey / tracing report does not fall under the definition of forgery. This contention of his is accordingly turned down.
268. Prosecution thus has been able to establish that accused Pramod Kumar Gupta, was one of the co conspirators and he in order to perform his assigned role in the conspiracy had forged the report dated 14.05.1998 which is at Page No.38 to 41 of the Claim File Ex.PW.3/2, with intention to induce NIC to believe on the same, so as to pass the claim in favor of M/s Kepco Industries.
Case qua accused ASHOK KUMAR
KOCHHAR :
269. It is the case of prosecution that accused Ashok Kumar Kochhar as Proprietor of M/s Shree Durga Carrier was a prominent member of the conspiracy which he C.C.No: 37 / 2011 Page No.156 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
hatched with his brother Parveen Kumar Kochhar, Proprietor of M/s Kepco Industries, the insured. It is further the case of the prosecution that accused Ashok Kumar Kochhar as Proprietor of M/s Shree Durga Carriers had forged G.R. No. 325 dated 27.04.1998 which was furnished by his brother in support of the claim so as to induce National Insurance Company to process and pass it in favour of the insured i.e. M/s Kepco Industries.
270. Prosecution in order to prove the same had examined PW3 A.K.Seth, PW4 A.L.Gambhir & PW6 A.K.Tiwari, members of the vigilance team of NIC, who proved their initial report as Ex. PW2/2 which formed the basis of complaint Ex. PW2/1 lodged by PW2 K.Mahapatra with CBI.
271. Besides these witnesses prosecution had examined PW24 R.P.Kaushal, the Investigating Officer as well as PW19 Sh.H.C.Mehta, Proprietor of M/s Leo Dye Chem., the C.C.No: 37 / 2011 Page No.157 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
purported consignor in the present case. Prosecution had also examined PW21 Inspector B.S.Bisht, PW17 Sonu Gupta, PW18 Shiv Charan and PW9 Mohan Mahto to prove on record that M/s Shree Durga Carriers did not exist at the given address i.e. A105 A, Adhyapak Nagar, Nangloi, Delhi.
272. It is submitted by Ld. Public Prosecutor relying upon the documentary evidence on record coupled with the oral deposition that, the copy of GR which is at page no. 30 of claim file Ex. PW3/2 is a forged document.
273. Sh. R.K.Kohli, Advocate, Ld. Defence Counsel appearing for accused Ashok Kumar Kochhar contended that prosecution has failed to connect his client with the offence for which his client is facing trial, as no document whatsoever on record in the claim file bears signatures of Ashok Kumar Kochhar. He contended that even the copy of GR does not bear signatures of Ashok Kumar Kochhar, therefore, by no stretch of C.C.No: 37 / 2011 Page No.158 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
imagination, on the basis of this GR, he can be fastened with any criminal liability.
274. I have considered the submissions advanced and have perused the prosecution evidence on record.
275. No doubt provision under section 313 (3) of Code of Criminal Procedure gives a right to the accused to evade any question or even to give false reply to the same. However, Sub section 4 of section 313 Cr.PC empowers the Court to use the answers given by him in his statement.
276. It is a well settled proposition of law as laid down by Hon'ble Apex Court in the case titled "Dharnidhar Vs. State of Uttar Pradesh", reported as (2010) 7 SCC 759"
and also in another case titled "State of Maharashtra Vs. Sukhdev Singh" reported as AIR 1992 SCC 2100 ; that C.C.No: 37 / 2011 Page No.159 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
"admission" or "confession" made by the accused in the statement under section 313 Cr.PC, during the course of trial, can be acted upon and the Court can rely on these admissions and proceed to convict him.
277. It is apparent on perusal of the statement under section 313 Cr.PC of accused Ashok Kumar Kochhar that he during the course of same, has claimed himself to be the owner / Proprietor of M/s Shree Durga Carriers. He also admitted that he had been running this business from the address of A105 A, Adhyapak Nagar, Nangloi, Delhi. Besides that he in reply to Question no. 5 of his statement under section 313 Cr.PC had admitted that truck bearing no. DEL2557 was operating under his transport company which had met with an accident.
278. Further in reply to Question no.72 of his statement, he stated that the weighment of the truck after the C.C.No: 37 / 2011 Page No.160 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
accident was carried out and Dharamkanta receipts Ex.
PW22/B & Ex. PW22/C are genuine. Besides that in reply to Question no. 62 wherein specifically, copy of this G.R. which is part of claim file Ex. PW3/2 was put to the accused, which he has not specifically denied to be not his or that the same was not issued by M/s Shree Durga Carriers.
279. On the basis of these answers given by the accused during the course of his statement under section 313 Cr.PC, it is apparent that he has claimed himself as Proprietor of M/s Shree Durga Carriers, operating from A105 A, Adhyapak Nagar, Nangloi, Delhi. Besides that he has further admitted that truck bearing no. DEL2557 was operating under his company and that this truck had met with an accident and after the accident the same was weighed at Dharamkanta vide weighment receipts Ex. PW22/B & Ex. PW22/C. C.C.No: 37 / 2011 Page No.161 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
280. From these answers given by him, it is clearly evident that he has admitted to be a part of this transaction and as Proprietor of M/s Shree Durga Carriers it was him who was responsible for transportation of consignment. Further, in reply to Question no. 62 of his statement under section 313 Cr.PC wherein he was put that copy of G.R. in the claim file Ex. PW3/2, he has not specifically denied of having issued this G.R with respect to the present consignment.
281. It has already been held by me hereinabove, on the basis of prosecution evidence which has come up on record, that neither any consignment was sent by the purported consignor M/s Leo Dye Chem. to M/s Kepco Industries nor M/s Shree Durga Carriers was in existence from the given address. Considering the same, as a necessary inference coupled with the answers given by accused to the questions put to him under section 313 Cr.PC the same clearly establishes that accused Ashok Kumar Kochhar was aware of each and every step of C.C.No: 37 / 2011 Page No.162 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
this fraudulent transaction of the nonexistent consignment of Tolwin oil.
282. Further, it was he, who for and on behalf of his company M/s Shree Durga Carriers had issued G.R. No. 325, copy of which is at page no. 30 of claim file Ex. PW3/2 as he has admitted that the truck carrying this consignment (non existent one) had met with an accident. Thus the same was issued fraudulently by him, knowing fully well that no such consignment was being carried and the same was issued by him, with intention to cheat NIC, so as to pass a claim in favour of M/s Kepco Industries, which is owned by his brother i.e. coaccused Parveen Kumar Kochhar.
283. Sh. R.K.Kohli, Ld. Defence Counsel contended that prosecution has to establish its case against accused beyond reasonable doubt. He contended that merely because his client has not specifically controverted the copy of GR, C.C.No: 37 / 2011 Page No.163 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
which is in the claim file Ex. PW3/2, does not mean that the same stands proved to be of Ashok Kumar Kochhar.
284. It is a settled proposition of law, that burden of proof in a criminal trial always rests on the prosecution and that it never shifts. However, the legislature while recognizing the onerous task enjoined on the court to unearth the truth, has incorporated the provisions of Section 106 of Indian Evidence Act.
285. This rule / provision would apply when the facts are "especially within the knowledge of the accused" and it would be impossible or at any rate disproportionately difficult for the prosecution to establish such facts which are "especially within the knowledge of the accused". It has been held by Hon'ble Apex Court in "Murlidhar Vs. State of Rajasthan"
reported as AIR 2005 SC 2345" and "Santosh Kumar Singh C.C.No: 37 / 2011 Page No.164 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Vs. State" reported as (2010) 9 SCC 747 that prosecution is not required to eliminate all possible defences or circumstances which may exonerate the accused. If certain facts are in the knowledge of accused, then he has to prove them. Of course, prosecution has to prove prima facie case in the first instance.
286. Prosecution through the deposition of PW21 Inspector B.S.Bisht, PW17 Sonu Gupta, PW18 Shiv Charan and PW9 Mohan Mahto has been able to establish that no firm by the name of M/s Shree Durga Carriers was operating from A105 A, Adhyapak Nagar, Nangloi, Delhi. Further, prosecution has established on record through deposition of PW24 and PW19 coupled with letters Ex. PW19/A & Ex. PW19/B that no consignment of Tolwin oil was being transported through the truck of M/s Shree Durga Carriers.
287. Had M/s Shree Durga Carriers been in existence and the said consignment was carried by this firm, C.C.No: 37 / 2011 Page No.165 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
through one of its truck i.e. DEL2557 as has been contended by the accused, the same must have been in "exclusive and specific knowledge" of accused Ashok Kumar Kochhar being Proprietor of this firm.
288. Thus, by virtue of provisions of Section 106 of Indian Evidence Act, this fact being in "exclusive knowledge" of accused should have been established on record by him, as prosecution has discharged the initial onus by virtue of its witnesses.
289. However, no evidence whatsoever was put forth by accused Ashok Kumar Kochhar, to substantiate his defence.
290. Had there been no nexus between Ashok Kumar Kochhar and the insured then there was no reason or occasion with Ashok Kumar Kochhar to have issued this G.R. C.C.No: 37 / 2011 Page No.166 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
for and on behalf of his firm to support a fraudulent transaction. There could be only one reason for the same and that was the complicity, which he had with his brother i.e. co. accused Parveen Kumar Kochhar.
291. The complicity and nexus between these two accused persons is further fortified on perusal of the account opening form Ex. PW16/B of Punjab National Bank, Tri Nagar, vide which Parveen Kumar Kochhar had opened a current account bearing no. CA5061 in the name of M/s Kepco Industries, the same was introduced by accused Ashok Kumar Kochhar.
292. Although Sh.I.S.Kapoor, Ld. Defence Counsel for accused Parveen Kumar Kochhar, in support of his defence had brought to my notice a judgment dated 20.12.2013 passed by Sh. Rakesh Syal, Ld. Special Judge, CBI, Dwarka C.C.No: 37 / 2011 Page No.167 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Courts, in CBI Case no. 35/12 in the case titled "CBI Vs. Moti Lal Mathur & Ors". This judgment, however, instead of supporting the case of accused has led credence to the prosecution case.
293. Perusal of this judgment has magnified the acts and actions of the accused persons. The said judgment makes it evident that the accused persons in the said case also had used similar set of documents, circumstances and modus operandi to cheat a different Division office of NIC.
294. It is apparent that in the said case, accused persons had used the same consignor and the same transporter i.e. M/s Leo Dye Chem. and M/s Shree Durga Carriers, as they had done in the present case.
295. It is further apparent on perusal of said judgment that in said case as well, Pramod Kumar Gupta was C.C.No: 37 / 2011 Page No.168 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
appointed as surveyor as has been done in the present case.
296. Further the mode of cheating NIC adopted by the accused therein i.e. Ashok Kumar Kochhar was exactly the same as in the present case which is accident of the tanker containing Tolwin oil. The icing on the cake was done by them by choosing the place of accident to spill the nonexistent consignment of Tolwin oil, in the said case to be Dharuhera only, which has been chosen by them, in the present case as well.
297. Perusal of the above mentioned judgment submitted by Ld. Defence Counsel Sh. I.S.Kapoor, during the course of arguments instead of supporting the case, fortifies the role of the accused persons in the present fraudulent transaction.
C.C.No: 37 / 2011 Page No.169 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
298. In view of above, it is clearly evident that accused Ashok Kumar Kochhar being an active member of the conspiracy, in furtherance of achieving the object thereof, had performed his prescribed role and forged G.R. No. 325 dated 27.04.1998, as he assumed the same to be of his firm, copy of which is at page no. 30 of claim file Ex. PW3/2, with intention to cheat the Insurance Company.
Case qua accused G.C.GUPTA, the
public servant :
299. Ld. Defence Counsels defending the public servant G.C.Gupta had vociferously contended that whatever he has done in the present claim, the same was in discharge of his official duties. Ld.Defence Counsels relying on the deposition of prosecution witnesses, more particularly, the cross examination conducted by them of PW3 ; PW4; PW6; PW7 PW10 and PW11 had contended that appointing a C.C.No: 37 / 2011 Page No.170 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
surveyor 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 G.C.Gupta and taking action on it. It is further submitted that whatever he has done, the same was on the basis of processing and recommendations of subordinate officers, on which he has no reasons to doubt. Sh.Ramesh Gupta, Ld.Senior Advocate & Sh.C.L.Gupta, Ld. Defence Counsels further contended that there is no evidence on record to impute that at any point of time, accused public servant G.C.Gupta had met the claimant / insured, either before or during the processing of claim or after passing of it.
300. No doubt, the entire prosecution evidence does not anywhere states that the claimant / insured had met the accused public servant. But that in itself, is not and cannot be a ground to absolve the accused. As with respect to the offence of conspiracy, hardly one gets such direct evidence. It is C.C.No: 37 / 2011 Page No.171 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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.
301. 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.
302. Having held so, I shall now deal with the other contentions qua the public servant, on the basis of evidence on record.
303. PW11 Gopa Sahoo during the course of her deposition stated that letter of request Ex.PW.7/X7 from M/s Kepco Industries was given to her by accused G.C.Gupta who had received this letter from the applicant. She deposed that he had given the rates of premium on the basis of which PW12 Pooja Soni made the calculations whereafter, the policy was C.C.No: 37 / 2011 Page No.172 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
issued. During the course of cross examination of this witness, no suggestion on behalf of accused G.C.Gupta, was given that he himself had not received the request letter Ex.PW.7/X7 from the insured.
304. Record ie. Claim File Ex.PW.3/2 further reveals that the claimant / insured M/s Kepco Industries had lodged "intimation of loss" to the consignment vide their letter nd th dated 02 / 04 May 1998 Ex.PW.6/DX1. Perusal of this letter which was also directly received by accused G.C.Gupta, reveals that he vide his endorsement dated 04.05.1998, on the same had appointed accused Pramod Kumar Gupta, to conduct survey. Perusal of this letter makes it apparent that accused Pramod Kumar Gupta, had made endorsement thereon of acknowledging his appointment as "surveyor" on that very day ie. 04.05.1998.
C.C.No: 37 / 2011 Page No.173 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
305. Claim File Ex.PW.3/2 contains the "survey report" of accused Pramod Kumar Gupta which is Ex.PW. 6/DX2 dated 14.05.1998. However, vide this survey report, it is mentioned that survey was conducted by him on 04.05.1998 itself at Daruheda, the alleged site of accident.
306. Considering the fact that DOXXIII is situated in R.K.Puram, Delhi and as per the record, address of insured is of Nangloi, Delhi and the site where survey as per the "Survey Report" was conducted is at Daruheda. The record however reveals that accused G.C.Gupta had received the loss intimation from the insured on 04.05.1998 on which he appointed the surveyor, whose address is of Paschim Vihar, on that very day. The said Surveyor from Paschim Vihar had reached the office of NIC on that very day and had acknowledged his appointment as surveyor and had also conducted the survey on same date at Daruheda. These facts on the face of it, seems improbable and implausible to be C.C.No: 37 / 2011 Page No.174 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
accepted. More particularly, when there is no endorsement made by accused G.C.Gupta after appointing Pramod Kumar Gupta as surveyor, as to how he has to be informed about his appointment and when he has to conduct the survey.
307. As it has already been held by me that the said Surveyor accused Pramod Kumar Gupta, had given a false and forged survey report Ex.PW.6/DX2, it leads to the only inference that there was complicity and nexus, between G.C.Gupta and coaccused persons, in furtherance of which he appointed only this surveyor. The nexus amongst the accused public servant and others becomes glaring, after finding that in the earlier case as has been referred above in Paras 292 and 293 (supra), in a similar fraudulent transaction involving accident of tanker containing Tolwin Oil at Daruheda, this very accused Pramod Kumar Gupta, was appointed the surveyor. C.C.No: 37 / 2011 Page No.175 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
308. Accused G.C.Gupta being responsible officer of NIC, while approving any claim had to look at the documents on the claim file minutely. If the supporting documents on the claim file Ex. PW3/2 are considered as genuine, then on the face of it, accused G.C.Gupta should have noticed the falsity of the survey report Ex. PW6/DX2.
309. It is apparent from the copy of alleged report to the police of P.S.Dharuhera Ex. PW6/DX that the same is dated 02.05.1998. Meaning thereby, that the accident of the alleged tanker, if any, had taken place on 02.05.1998. Accused G.C.Gupta himself had appointed coaccused P.K.Gupta as surveyor on 04.05.1998 who as per survey report Ex. PW6/DX2 conducted survey on 04.05.1998. The said survey report reveals that the surveyor after taking photographs had got the tanker back on its wheels through crane. C.C.No: 37 / 2011 Page No.176 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
310. Thus, for 2 days if not more, the said tanker containing alleged consignment of tolwin oil, a liquid substance remained in upside down position. Being in that position it is highly improbable and almost impossible that any liquid would have remained inside the tanker or could have been salvaged. However, the survey report reveals otherwise.
311. Had accused G.C.Gupta been vigilant, this fact should have struck him while scrutinizing the file for approval. But that was not to be, for obvious reasons.
312. Through the deposition of PW7 coupled with the Claim Note Ex.PW.7/X3, which is at Page No.9 and 10 of the Claim File Ex.PW.3/2, it is apparent that accused G.C.Gupta, vide his endorsement at Point C, had approved the claim for Rs.2,29,649/. This claim form reflects an entry at Serial No.15 that notice to carrier along with registered AD Card is enclosed.The Claim File Ex.PW.3/2 further reveals that C.C.No: 37 / 2011 Page No.177 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Claim Bill dated 30.05.1998 which is at Page No.32 of the file, was submitted by accused Praveen Kumar Kochhar of M/s Kepco Industries, alongwith which he had submitted notice to the transporter / carrier coupled with the Postal Receipt. The same were required to be considered by accused G.C.Gupta,while approving the Claim Note Ex.PW.7/X3.
313. It is apparent on perusal of the said notice given to carrier by the insured which is at Page No.31 of the Claim File Ex.PW.3/2 that accused G.C.Gupta has deliberately overlooked the same for obvious reasons and went ahead to approve the claim note Ex.PW.7/X3 which led to release of the cheque Ex.PW.13/A, to accused Praveen Kumar Kochhar vide disbursement voucher Ex.PW.12/A.
314. Had accused G.C.Gupta been not involved with coaccused persons, then he would have clearly found that the address of the carrier mentioned on this letter by the insured C.C.No: 37 / 2011 Page No.178 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
which is at Page No.31 of the Claim File is E3/7, Shiv Ram Park, Nangloi, Delhi41. Record reveals that this is actually the address of insured M/s Kepco Industries which is found mentioned on that very letter head on which this notice to the carrier is purported to have been sent.
315. Had there been no nexus between G.C.Gupta and coaccused persons, then he would have noticed the same and could have saved the wrongful loss being caused to National Insurance Company. But that was not to be.
316. Accused G.C.Gupta owing to this complicity had facilitated coaccused persons to submit these forged documents, which he himself had accepted knowing or having reasons to believe the same to be forged documents and made them part of the record for the purposes of processing and approving the claim.
C.C.No: 37 / 2011 Page No.179 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
317. Apart from above, it is clear from the deposition of PW11 that the request letter Ex.PW.7/X7 for issuance of "Transit Insurance Policy" from the applicant / insured ; Letter Ex.PW.6/DX1 by the claimant / insured dated 02nd / 04th May 1998, were directly received by accused G.C.Gupta on 04.05.1998 which are at Page No.18 and 2 respectively of the Claim File Ex.PW.3/2, which though in ordinary course should have been received by the Insurance company in its office, from where the same should have been put up before accused G.C.Gupta, who was the senior officer. However, evidence on record reveals that all these correspondences were directly received by accused G.C.Gupta in his office at NIC, Delhi.
318. No doubt PW3, PW4 & PW6 during the course of their cross examination had admitted that there is no irregularity in directly receiving a dak by Incharge / Senior C.C.No: 37 / 2011 Page No.180 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
officer heading the branch. But this process should have been an exception. In the present case, all these correspondence directly landed in the hands of accused public servants, who then had given definite instructions to their subordinate officers for processing them. This leads to establish an important link between the accused public servants and their coconspirators i.e. private person.
319. Apart from above, the Claim file reveals that in this case, M/s Recovery India International were appointed as "Recovery Agent" vide receipt at Page No.14 of the Claim File Ex.PW.3/2. However, on the basis of deposition of prosecution witnesses, it has come up on record that no recovery in this case was affected.
320. In such an eventuality, accused G.C.Gupta should have taken note of the reasons for the same and should have initiated appropriate action for fraudulent passing C.C.No: 37 / 2011 Page No.181 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
of the claim. But no such action was taken for obvious reasons. As accused G.C.Gupta was himself acting in concert with the coaccused persons, therefore, he obviated to initiate any action against the wrong doers.
321. As responsible officer of National Insurance Company, it was expected of him being obligatory on his part, to have acted in the best interest of the company. But that was not to be. He not only obviated what basic standard of care and caution he was expected to adopt while performing his official duties. Rather, he facilitated his coconspirators to cheat the insurance company by causing wrongful loss to it.
322. Had there been no involvement of the accused public servant, then the "Rule of Prudence" demand that he should have scrutinized the documents / letters sought to be placed on record in support of the claim by the claimant, which C.C.No: 37 / 2011 Page No.182 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
would have saved National Insurance Company from the wrongful loss.
323. But that was not to be.
324. This conduct of accused public servant clearly reveals that there was prior meeting of mind between him and other private accused persons. The object of this conspiracy was to cheat National Insurance Company, by successfully passing and releasing the claim in favor of M/s Kepco Industries and thus to cause wrongful loss to NIC and corresponding pecuniary advantage / wrongful gain to M/s Kepco Industries, proprietorship firm of accused Praveen Kumar Kochhar.
325. This has brought me down to the next contention urged on behalf of accused public servant by Ld.Defence Counsels, that the investigating agency had been unfair and adopted "Pick and Choose Policy" to falsely C.C.No: 37 / 2011 Page No.183 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
implicate accused G.C.Gupta and exonerating other similarly situated officers.
326. Need of fair, honest, efficient and thorough filed investigations is the single most important factor which directly determines the fulfillment of the object for which various provisions of P.C.Act were brought on the Statute Book. Investigations lays the foundation on which arch of trial is erected. An important link, if missed by the investigating agency and if detected late, leads to crumbling of this arch. Therefore, the investigating agency while performing its duty, needs to be vigilant so as to collect all material and relevant evidence linked with the case.
327. 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 C.C.No: 37 / 2011 Page No.184 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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 servant, have performed similar roles.
328. From the evidence which has come up on record as discussed hereinabove, prosecution has been able to establish nexus between the accused public servant only and his 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 C.C.No: 37 / 2011 Page No.185 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
"pick and chose policy" is turned down.
329. Sh.C.L.Gupta, Advocate, Ld.Defence Counsel relying upon the defence witness examined by them ie. DW2 Om Prakash, had contended that even the investigating agency during house search of accused G.C.Gupta did not find anything incriminating. He contended that the documents taken into possession during his house search were returned to the accused. Ld.Defence Counsel further augmented this contention of his, that accused G.C.Gupta has not criminally misconducted himself, by relying upon the deposition of other defence witness examined by them viz. DW1 A.K.Goel, to prove that his suspension order was revoked and he has been reinstated.
330. 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 C.C.No: 37 / 2011 Page No.186 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
G.C.Gupta, investigating agency did not find documents worthrelying 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.
331. 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.
C.C.No: 37 / 2011 Page No.187 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
332. Last contention urged on behalf of the accused public servant, was that his 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".
333. The word "misconduct" has been defined in Black's Law Dictionary, which reads as under: "The transgression of some established rule of action, dereliction from duty, unlawful behaviour, improper or wrong behaviour".
334. 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 C.C.No: 37 / 2011 Page No.188 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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.
335. 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 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. C.C.No: 37 / 2011 Page No.189 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
336. 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.
337. 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 being public servant, acting inconcert with other accused persons, had abused his official position as such and facilitated co accused Praveen Kumar Kochhar, Proprietor of M/s Kepco Industries, the claimant, to get wrongful pecuniary advantage, by passing a claim on the basis of false and forged documents C.C.No: 37 / 2011 Page No.190 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
with aid and assistance of accused Pramod Kumar Gupta and Ashok Kumar Kochhar, thereby causing wrongful loss to NIC.
338. These actions and omissions of his, is nothing short of "criminal misconduct" as the same is laden with a dishonest intention, with which he had acted while dealing with the Claim file Ex.PW.3/2 and passing and releasing a claim amounting to Rs.2,29,649/ in favor of M/s Kepco Industries. His actions have clearly transgressed plain and simple misconduct and entered in the contours of "criminal misconduct".
339. Consequently, from the material placed and proved on record by the prosecution, it is established that there was prior meeting of minds amongst all the accused persons, who acting inconcert had hatched a conspiracy, the object of which was to obtain a Marine Claim in favor of M/s Kepco C.C.No: 37 / 2011 Page No.191 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Industries, on the basis of false and forged documents.
Prosecution has been able to establish on record that all the accused had performed their assigned roles of commissions and omissions, in the process of achieving the object of conspiracy. Had there been no prior meeting of minds, then the accused persons would not have conducted themselves, the way they have, as held by me hereinabove.
340. 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.
341. 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 C.C.No: 37 / 2011 Page No.192 of 194 Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
G.C.Gupta, Ashok Kumar Kochhar, Praveen Kumar Kochhar and Pramod Kumar Gupta, 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 genuine.
342. 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 :
343. Having regards to the facts and circumstances and the discussions as delineated hereinabove:
(a) Accused G.C.Gupta, Pramod Kumar Gupta, Ashok Kumar Kochhar and Praveen Kumar Kochhar, 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: 37 / 2011 Page No.193 of 194
Judgement in the matter of:-
CC No.: 37 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(b) Accused G.C.Gupta also stands convicted for substantive offences under section 13(1)(d) read with section 13(2) of Prevention of Corruption Act.
(c) Accused Praveen Kumar Kochhar also stands convicted for substantive offence under section 420 and 471 IPC.
(d) Accused Ashok Kumar Kochhar also stands convicted for substantive offence under section 468 IPC.
(e) Accused Pramod Kumar Gupta also stands convicted for substantive offence under section 468 IPC.
344. Let all the convicts be heard on the point of sentence.
Announced in the Open Court th On the 16 Day of October, 2014.
(KANWALJEET ARORA) SPECIAL JUDGE : C.B.I. (P.C.ACT) DWARKA COURTS, NEW DELHI.
C.C.No: 37 / 2011 Page No.194 of 194