Delhi District Court
Central Bureau Of Investigation vs Moti Lal Mathur on 20 December, 2013
IN THE COURT OF SH. RAKESH SYAL, SPECIAL JUDGE, (PC ACT) &
(CBI)-03, SOUTH WEST DISTRICT, DWARKA, NEW DELHI
CBI Case No. 33/12
RC No. 2(E)/2001/EOW-I/DLI
In re:
Central Bureau of Investigation
Vs.
1. Moti Lal Mathur,
S/o late Shri B.L. Mathur,
R/o Pocket A-10/74-A
Kalkaji Ext.
New Delhi-19.
2.Yash Pal Babbar,
S/o Pishori Lal Babbar
R/o C-113, Sarita Vihar,
New Delhi-76
3. Sh. Arvind Khanna
S/o Late Sh. K.M. Khanna
R/o A-104, Lok Vihar,
Delhi.
4. Sh. Ramesh Khaneja,
S/o Sh. Raj Gopal
R/o. A-62/63, Flat No. 112,
Mansa Ram Park,
Uttam Nagar,
New Delhi-110049.
CBI Case No. 33/12 1 of 49
Date of Institution of Case : 31-01-2003
Date on which Judgment was reserved : 18-12-2013
Date on which Judgment was delivered : 20-12-2013
JUDGMENT
Facts 1.1 This case was registered on 24-01-2001 on the complaint dt. 29-09-2000 of Sh. K.B. Mahapatra, CVO, National Insurance Company Ltd. (hereinafter referred to as NIC), Calcutta alleging that accused No. 2, Sh. Yash Pal Babbar, the then Asstt. Manager and accused No. 1, Sh. Moti Lal Mathur, Administrative Officer, NIC, Divisional Office (hereinafter referred to as DO)-XIII, New Delhi entered into a criminal conspiracy during the year 1998-99 with private persons/ surveyors/ tracers namely accused No. 3, Arvind Khanna, Prop. M/s Ashoka Trading Syndicate, B-V/100, Sector 11, Rohini, Delhi-110085 and accused No. 4, Ramesh Khaneja, Prop. M/s Globe Claims Recovery Consultants, A/390, Chokhandi, Tilak Nagar, Delhi 110018, and obtained a marine claim of Rs.2,74,705/- in favour of M/s Ashoka Trading Syndicate, Delhi on the basis of forged and bogus documents. 1.2 Investigation was conducted during which, inter-alia, statement of witnesses were recorded, documents were seized and specimen handwriting/signature of suspects and questioned documents were got examined from the CFSL.
1.3.1 Investigation revealed as under:-
1.3.2 Accused No. 3 Sh. Arvind Khanna, Proprietor, M/s Ashoka Trading Syndicate took a Marine Policy No. 4500361 for Rs. 6,95,000/- on 20-10-1998 for dispatch of 10 drums containing Industrial Benzonate from CBI Case No. 33/12 2 of 49 Delhi to M/s Kapurthala Oil Company, Dhak Bazar, Sangrur, Punjab vide goods receipt No. 18388 dt. 27-10-1998 of M/s Goods Transport Corporation, Behind Telephone Exchange, G.T. Road, Chikamberpur, UP Border, Ghaziabad. The insured reported the loss of 6 drums of chemicals to NIC, Sangrur. Sh. Adev Kumar Agarwal, 85, Gandhi Market, Bhatinda, Punjab was purportedly deputed for survey. The survey report was submitted by Sh. Adev Kumar Aggarwal on 02-11-1998. This survey report was purported to have been forwarded by Sh. S.K.Chandel, Asstt. Manager, NIC, DO Sangrur vide letter dt. 05-11-1998. This letter was shown as having been received by NIC, DO XIII Delhi on 12-11-1998. A claim file no. 44/98-98/48 of M/s Ashoka Trading Syndicate was opened in NIC, DO-XIII, New Delhi. The claim was processed and recommended by accused No. 1 Sh. Moti Lal Mathur, for Rs.
2,74,705/-, which was sanctioned by accused No. 2 Sh. Yash Pal Babbar. A claim amount of Rs.2,74,705/- was received by accused No. 3 Arvind Khanna vide cheque no. 258052 dt. 14-12-1998 of Indian Overseas Bank, New Delhi. The proceeds of the claim cheque were credited into Current Account no. 10570 of M/s Ashoka Trading Syndicate of Sh. Arvind Khanna R/o I-104, Lok Vihar, Pitampura, New Delhi in SBI, Jhandewalan Extn. 1.3.3 Accused No. 4 Sh. Ramesh Khaneja of M/s Globe Claims Recovery Consultants, New Delhi was appointed as Recovery Agent/ Investigator. An amount of Rs. 13,340/- was deposited as amount recovered from M/s Goods Transport Corporation, vide bankers cheque no. 827190 dt. 05-01-1999 drawn on SBI, Jhandewalan Ext. and collection no. 9885 dt. 11-01-1999. It was actually got prepared by accused No. 3 Sh. Arvind Khanna by paying cash. A sum of Rs. 5890/- was paid as recovery fee to Sh. Ramesh Khaneja vide cheque No. 258209.
CBI Case No. 33/12 3 of 49 1.3.4 Neither the insured company nor the transporter was found at
the given address. The letter of NIC, DO Sangrur by which the survey report was forwarded was found to be fake. The survey report of Sh. Adev Kumar Aggarwal was found to be fake as Sh. Aggarwal denied his signature on the said report. M/s Globe Claims Recovery Consultants had not conducted any verification in this case and had submitted his report as per the directions of accused No.1 Moti Lal Mathur. Accused No. 3 Arvind Khanna, A-104, Lok Vihar, Pitampura, N. Delhi was found to be the owner of M/s Ashoka Trading Syndicate as per the records of SBI, Jhandewalan Extn. in which the proceeds of the claim had been credited. The recovery cheque was also issued from the bank account of insured firms, i.e. SBI, Jhandewalan Extn. The documents submitted in the claim were fabricated by accused No. 3 Sh. Arvind Khanna, accused No. 4 Ramesh Khaneja, accused No. 1 Moti Lal Mathur and accused No.2 Yash Pal Babbar and facilitated accused No. 3 Arvind Khanna of M/s Ashoka Trading Syndicate to receive an amount of Rs. 2,74,705/- from NIC, New Delhi thereby causing wrongful loss to the tune of Rs.2,74,705/- to NIC, New Delhi and wrongful gain to accused persons. 1.4 On completion of investigation, a charge sheet U/s 120 B r/w sections 420, 467, 468 and 471 IPC and Section 13 (2) r/w section 13 (1) (d) of Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act), and substantive offences thereof was filed against the above named accused persons.
1.5 It is may be mentioned that as per the documents/letter heads of the insured/consignee, Ashoka Trading Syndicate, as available in the claim file, the name of the said consignee has been mentioned as "Ashoka Trading Syndicate". Accused No. 3 Arvind Khanna is alleged to be the proprietor of CBI Case No. 33/12 4 of 49 the same. However, the parties as well as the witnesses have at many places/times referred to the same as "M/s Ashoka Trading Syndicate". There is no dispute that any reference to "M/s Ashoka Trading Syndicate" means "Ashoka Trading Syndicate." Thus, the consignee is being hereinafter referred to as "Ashoka Trading Syndicate". Same is the case with respect to "Globe Claims Recovery Consultants", which has been, at many places/times referred by the parties and the witnesses as "M/s Globe Claims Recovery Consultants".
1.6. In the survey report Mark X-1 the consignor has been mentioned as "Kapurthala Oil Company". However, in the verification report dt. 02-12-98 Ex. PW5/H the consignor has been mentioned as M/s Kapurthala Oil Company. There is no document of Kapurthala Oil Company on record. The same is being hereinafter referred to as Kapurthala Oil Company. 2.1 Copies of documents in terms of Section 207 Cr.P.C. were supplied to the accused persons.
Charges 3.1 Vide order dt. 17-02-2004 of my Ld. Predecessor, charges were framed against the accused persons as under :-
a) against all the accused persons, u/s 120-B r/w section 420/467/468/471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act,
b) against accused No. 1, Moti Lal Mathur u/s 13 (2) r/w section 13 (1) (d) of the PC Act,
c) against accused No. 2, Yash Pal Babbar u/s 13 (2) r/w section 13 (1) (d) of the PC Act,
d) against accused No. 3, Arvind Khanna u/s 420 IPC and u/s 471 r/w sections 467 and 468 IPC, CBI Case No. 33/12 5 of 49
e) against accused No. 4, Ramesh Khaneja u/s 468 IPC, The accused persons pleaded not guilty to the charges and claimed trial.
Prosecution Evidence 4.1 PW 1 Sh. Kruti Bas Mahapatra, Chief Vigilance Officer of the NIC on whose instructions, investigation was carried out, has filed complaint, dt. 29-09-2000, Ex.PW1/B with the CBI. PW 2 Sh. Akhilesh Kumar Seth, PW 3 Sh. Anil Kumar Tiwari and PW 16 Sh. Amrit Lal Gambhir, all officers of the Vigilance Department of NIC had conducted the investigation during which they had seized the files including the claim files of Ashoka Trading Syndicate, Ex.PW2/A and Ex.PW2/B and given their report Ex.PW1/A. 4.2 PW 9 Sh. P.K. Aggarwal, Administrative Officer, Vigilance Department, NIC has handed over 9 marine claim files to the CBI vide seizure memo, dt. 08-02-01 Ex. PW9/A and certain other documents vide letter, dt. 16-09-2002, Ex.PW9/B. PW 12 Sh. C.D. Ram, Assistant, Divisional Office- XIII, NIC has handed over disbursement vouchers to the IO vide seizure memo, dt. 11-12-2002, Ex.PW12/A. 4.3 PW 4 Smt. Kiran Gulati, working in NIC, DO-XIII, and PW 5 Sh. Vinod Kumar, Senior Assistant, NIC, DO-XIII, NIC have testified about the claim files, Ex.PW2/A and Ex. PW2/B and identified the signatures/handwritings, inter-alia, of accused No. 1 Moti Lal Mathur and accused No. 2 Yash Pal Babbar on various documents in the said files viz. policy, Ex.PW4/A, cover note, Ex.PW4/B, claim processing note, Ex.PW4/C, notings, Ex.PW5/A and Ex.PW5/B on the inside front cover and inside back cover of the claim file, Ex.PW2/A, disbursement voucher, dt. 14-12-1998, Ex.PW5/C of the claim amount, letter dt. 02-12-1998, Ex.PW5/D of Globe Claims Recovery Consultant, disbursement voucher dt. 23-12-1998, CBI Case No. 33/12 6 of 49 Ex.PW5/E regarding payment to Globe Claims Recovery Consultant, handwritten paper, Ex.PW5/E, letter dt. 05-12-1998, Ex.PW5/G purportedly of Sh. Adev Kumar Aggarwal, verification report, dt. 02-12-1998, Ex.PW5/H of Globe Claims Recovery Consultant, letter dt. 30-11-1998, Ex.PW5/J of Ashoka Trading Syndicate, receipt dt. 11-01-1999, Ex.PW5/K of amount purportedly recovered from M/s Goods Transport Company, receipt dt. 26-10-1998, Ex.PW5/L of Rs.3,084/- from Ashoka Trading Syndicate, receipt dt. 26-10-1998, Ex.PW5/M of Rs.3,084/- from Ashoka Trading Syndicate and cheque, dt. 14-12-1998, Ex.PW5/N. 4.4 PW 6 Ms. Vandana, Divisional Manager, DO-XIII, NIC and PW 10 Sh. R.C. Sood, Administrative Officer have deposed about the documentation and procedure for settlement of marine claims and deficiencies in the claim files, Ex.PW2/A and Ex. PW2/B. PW 13 Sh. R. Vaidyanathan, Chief Manager, Indian Overseas Bank, where NIC was having current accounts No. 1194 and 1197, has deposed about handing over of cheques vide letter, dt. 04-05-2002, Ex.PW13/A, statement of accounts of current account No. 1194 of NIC, Ex.PW13/B. PW 21 Sh. B.K. Yadav has handed over various documents pertaining to account No. 10570 of Ashoka Trading Syndicate at SBI, Jhandewalan Extension to the IO vide seizure memo, dt. 15-11-2002, Ex. 21/A. PW 23 Sh. Ashok Kumar (also examined later on as PW28) has also deposed about various bank documents in respect of account No. 10570 of Ashoka Trading Syndicate.
4.5 PW 18 Sh. Kulwant Rai, PW 19 Sh. Parminder Singh, PW 20 Sh. Prem Chand, PW 22 Sh. Subhash Chander Jain, PW 25 Sh. Tara Singh and PW 26 Sh. Major Singh have testified deposed about non-existence of Kapurthala Oil Company.
CBI Case No. 33/12 7 of 49 4.6. PW 11 Sh. Dinesh Kumar Sharma, PW 14 Sh. Ashok Sehgal, PW 15 Sh. Veer Pal Singh and PW 17 Sh. Mahipal Sharma have testified about non-existence of M/s Goods Transport Company. 4.7 PW 7 Sh. Adev Kumar Aggarwal has deposed about his not submitting any survey report in this case and the survey report, dt. 02-11-1998, Mark X1 not bearing his signatures. PW8 Sh. Santosh Kumar Chandel, Deputy Manager, NIC deposed that no claim intimation was received in his office, no surveyor was appointed from his office and he has not signed the letter, Mark PW 8/1 and that the same was not written from his office.
4.8 PW 27 Sh. B.S. Bisht, PW 29 Sh. S.L. Garg and PW 30 Sh. Brij Mohan Pandit are the part IOs and PW 24 Sh. Jyoti Kumar and PW 31 Sh. R.P. Kaushal are the main IOs.
Statement of accused persons u/s 313 Cr.P.C.
5.1 Statement of all the accused persons were recorded u/s 313 Cr.P.C. wherein they generally denied the incriminating evidence that has come against them and stated that they had been falsely implicated in this case.
5.2 Accused No. 1 Moti Lal Mathur also stated that he was not duty bound to verify the authenticity of any of the party and as per company policy, he was required only to process the claim based on the accompanying documents that form part of the claim file. In this case, he found all the documents in order and consequently processed the claim to the best of his diligence and experience. It is a cooked up story set up against him. He has only acted in accordance with company rules, regulations and by laws and has committed no offence.
CBI Case No. 33/12 8 of 49 5.3 Accused No. 2 Yash Pal Babbar further stated that he has been
falsely implicated in this case due to professional rivalry and jealousy with the Vigilance Department's Officers. They were antagonized with him since he had superceded the Vigilance Department's Officers namely Sh. A.L. Gambhir and Sh. A.K. Tiwari. Mr. Seth had ill will towards him as he was not made Divisional Manager and he was posted as Divisional Manager in DO- XIII. When the claim documents were put to him for approval by his subordinates, the surveyor's report and all other documents including the verification report by the empaneled surveyor/ investigator were there in the file and there was no question of doubt. He had passed the claim with due care and in utmost good faith. It was not his duty to physically verify the claim documents or the consignment of goods/transporter/consignor/consignee. 5.4 Accused No. 3 Arvind Khanna stated that he does not know as to why this case has been made against him.
5.5 Accused No. 4 Ramesh Khaneja also stated that he was on the Panel of the NIC as a recovery agent and tracer and was working as such in the name of Ramesh Khaneja. He was working alone and was not having any employee or agent. He has been falsely implicated by the CBI. The report submitted by him in the present claim is not on record. Some other report in the name of firm Globe Claim Recovery Consultant had been wrongly used in this case to implicate him. The same has been signed by some other person named Ramesh Sharma and not by him.
Defence evidence 6.1 Accused No. 1 Moti Lal mathur and accused No. 2 Yash Pal Babbar have examined two witnessese namely DW 1 Dinesh Gupta and DW 2 Ms. Yamini Luthra in their defence beside themselves appearing as witness CBI Case No. 33/12 9 of 49 under section 315 Cr.P.C. read with section 21 of the PC Act DW 1 Sh. Dinesh Gupta, Assistant Manager, DO-XIII, NIC deposed about destruction of Claim Intimation Register and underwriting docket of the policies in terms of circular dt. 23-04-2013.
6.2 DW 2 Ms. Yamini Luthra, Administrative Officer, Regional Office, NIC deposed about destruction of record i.e. Audit Reports, Confidential Reports of accused No. 1 Moti Lal Mathur and accused No. 2 Yash Pal Babbar and cheque dishonor register for the relevant years in terms of circular dt. 23-04-2013, Ex.DW2/B. She has also stated about Claims Procedural Manual, Ex.PW2/C which was applicable prior to issuance of the New Guidelines vide Claims Facilitation, Ex/DW2/A around the year 2007. 6.3 DW 3 Moti Lal Mathur testified about the procedure for settlement of claims and stated that as Administrative Officer, he has no role in the appointment of Surveyor or the Verifier. He was not required to verify the Surveyor's Report, the Verifier's Report, the existence of Consignor/Consignee, the consignment or the Transporter. He was only required to check whether the surveyor's report and verifier's report are in consonance with the insurance particulars, the premium has been collected, the claim is covered within the scope of the Insurance Policy, whether details of packing, if any, are given in the proposal form and any adverse remark given by the Surveyor or Verifier. If the goods are insured and claim is filed within the validity of the Insurance policy, then, he cannot reject the claim provided all the documents are in order. In the present case, the claim had been processed and recommended by him. The recommendation made by him in this case and the amount involved is within his power as per the Claim Procedural Manual.
CBI Case No. 33/12 10 of 49 6.4 DW 4 Yash Pal Babbar testified that he had sanctioned the claim
within his financial power, which was Rs. 3 Lac at that time. There was no reason for him to believe that the documents including the survey report and verification report, were not genuine. He had passed the claim in utmost good faith, as recommended by his subordinates. He had not caused any wrongful gain to him or to any other person. He had never met accused No. 3 Arvind Khanna or his agent/representative in his office during the processing of the present claim. There was also no requirement that the claimant should meet the Divisional Manager. There was no requirement to cross check the report of Surveyor, Tracer, Verifier or Investigator. The same was not required by any Rules, Regulations, Guidelines etc. Arguments on behalf of CBI 7.1 Sh. Manoj Shukla, Ld. P.P. has argued that prosecution has been able to prove its case beyond a reasonable doubt. PW 18, Sh. Kulwant Rai, PW 19, Sh. Parminder Singh, PW 20, Sh. Prem Chand, PW 22, Sh. Subhash Chander Jain, PW 25 Sh. Tara Singh and PW 26, Sh. Major Singh have proved the non-existence of Kapurthala Oil Company. PW 11, Sh. Dinesh Kumar Sharma, PW 14, Sh. Ashok Sehgal, PW 15, Sh. Veer Pal Singh and PW 17, Sh. Mahipal Sharma have proved the non-existence of M/s Goods Transport Corporation. According to PW 7, Sh. Adev Kumar Aggarwal and PW 8, Sh. Santosh Kumar Chandel, no claim intimation was received at Bhatinda office of NIC, no surveyor was appointed by them and no letter was written by them to DO-XIII. PW 2, Sh. Akhilesh Kumar Seth, PW 3, Sh. Anil Kumar Tiwari and PW 16, Sh. Amrit Lal Gambhir have proved the vigilance report. PW 1 Sh. Kruti Bas Mahapatra has proved the complaint made by him to CBI. PW 9, Sh. P.K. Aggarwal and PW 12, Sh. C.D. Ram have proved the handing CBI Case No. 33/12 11 of 49 over of documents to CBI. PW 4, Mrs. Kiran Gulati and PW 5, Sh. Vinod Kumar have proved the handwriting of accused No. 1 Moti Lal Mathur and accused No. 2 Yash Pal Babbar in the claim file. PW 6, Ms. Vandana and PW 10, Sh. R.C. Sood have explained the procedure and documents required for settlement of claim. PW 13, Sh. R. Vaidyanathan, PW 21, Sh. B.K. Yadav, PW 23, Sh. Ashok Kumar (also later examined as PW28) have proved the bank documents of the NIC and claimant etc. He thus submits that besides direct evidence, the circumstantial evidence brought on record has proved that all the accused persons had conspired to cheat NIC.
Arguments on behalf of Accused No. 1, Moti Lal Mathur. 8.1 Sh. Shaju Francis, Ld. Counsel for accused No. 1 Moti Lal Mathur has argued that business of insurance is based on utmost good faith and no physical verification of claim is made by the Officers of NIC. In the present case, all the requirements of Claims Procedural Manual have been complied with by accused No. 1 Moti Lal Mathur. The claim was made and the reports of the outsourced agencies like surveyor, verifier etc. were submitted within the parameters of NIC and it was mandatory for accused No. 1 Moti Lal Mathur to act upon the claim within 24 hours of the intimation thereof. No investigation was carried out by CBI with regard to the truck or Ishar Das & Company, where the truck was weighed, despite the availability of their particulars in the record, or the photographs filed along with the survey report. The relevant record from Bhatinda Office of NIC as well as DO-XIII i.e. the Claim Intimation Register, Surveyor Appointment Register, Dispatch /Receipt Register have not been produced before the Court. He also argues that specimen signatures of PW 7 Sh Adev Kumar Aggarwal and PW 8 Sh Santosh Kumar Chandel were not taken to check the authenticity of their CBI Case No. 33/12 12 of 49 statement. The statements of witnesses regarding non-existence of Kapurthala Oil Company and M/s Goods Transport Company cannot be relied upon because a private person's lack of knowledge of a business concern does not mean that the said business establishment does not exist. The documentary evidence like the municipal record, record from the telephone department etc. have not been obtained to get to the truth. No irregularity has been pointed out in the recommendations made by him, by any witness. Testimony of accused No. 1 Moti Lal Mathur as DW 3 has gone unrebutted. There is no evidence of accused No. 1 Moti Lal Mathur meeting other accused persons for the purpose of conspiracy or sharing of money. Ld. counsel thus submits that prosecution has failed to prove its case against the said accused beyond a reasonable doubt.
Arguments on behalf of Accused No. 2, Yash Pal Babbar. 8.2 Sh. Umesh Sinha, counsel for accused No. 2 Yash Pal Babbar has argued that there has been a delay in registration of FIR, 9 charge sheets could not have been filed out of one FIR and preliminary inquiry was not conducted by CBI. He further argues that sanctity of preservation of the record was not maintained as the claim files were neither sealed nor inventory of the same was prepared and thus, absence of documents in the claim files cannot form the basis of prosecution case. He further argued that accused No. 2 Yash Pal Babbar has relied upon the recommendations of his subordinates and reports of surveyor/verifier to sanction the claim within his financial power and as per the Claims Procedural Manual. It is further argued that PW 7 Sh Adev Kumar Aggarwal is himself an accused and has deposed falsely, since if he had admitted his report, he might have been an accused himself. It is further argued that the CBI has not seized dispatch register, claim CBI Case No. 33/12 13 of 49 intimation register and surveyor appointment register of Bhatinda Office of NIC and thus, testimony of PW 8 Sh Santosh Kumar Chandel cannot be relied upon. It is further contended that no investigation had been conducted in respect of the truck, details of which are available. It is also argued that the evidence of witnesses regarding non existence of transporter M/s Goods Transport Company and the consignee Kapurthala Oil Company are quite vague and does not lead to the conclusion that the said firms did not exist. Even otherwise, if a person does not know about any other person/business establishment, it does not mean that the said person/business establishment does not exist. Ld. counsel has relied upon Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif, AIR 1968 (SC) 1413, J. Ramulu Vs. State of A.P., AIR 2008 SC 1505, P.K. Narayanan Vs. State of Kerala, 1995 (1) SCC 142, K.R. Purushothaman Vs. State of Kerala, 2005 Cri. L. J. 4648, Rita Handa Vs. CBI, 152 (2008) DLT 428, Anil Kumar Bose Vs. State of Bihar, AIR 1974 SC 1560, State (G.N.C.T) of Delhi Vs. Saqib Rahman @ Mansoori and Ors, 2012 VII AD (Delhi) 12, Ashok Narang Vs. State, 2012 II AD (Delhi) 481, Surendra Singh Vs. State of UP, 2010 Cri. L. J. 2258, Shranappa Mutyappa Halke Vs. State of Maharastra, AIR 1964 SC 1357, Surajit Sarkar Vs. State of West Bengal, AIR 2013 SC 807, C.K. Jaffer Sharief Vs. State (Through CBI), AIR 2013 SC 48, Subramanaian Swamy Vs. A. Raja, AIR 2012 SC 3336, S.V.L. Murthy Vs. State (Rep. By CBI Hyderabad) 2009 Laws (SC) 5-57, Sreedharan A. Vs. Dy. S.P. of Police, 2011 Laws (Ker) 4-117, C. Chenga Reddy and others Vs. State of Andhra Pradesh, AIR 1996 SC 3390, Sayeed MRO office Leeza Mandal Mahaboob Nagar Vs. State of A.P. through ACB, 2012 (2) ALD (Cri) 469 and V. Dilip Kumar Vs. CBI Case No. 33/12 14 of 49 State rep. by Dy. S.P. ACB/CBI Chennai, MANU/TN/0503/2012 and Anil Maheshwari Vs. CBI (Crl. App. No. 1455 of 2012). He finally submits that prosecution has failed to prove its case against the said accused. Arguments on behalf of Accused No. 3, Arvind Khanna.
8.3 Sh. R.K. Kohli, counsel for accused No. 3, Arvind Khanna has argued that prosecution has not been able to prove that Ashoka Trading Syndicate did not exist. He argues that payment to Ashoka Trading Syndicate was made by cheque, which was credited in the account of accused No. 3 Arvind Khanna. Prosecution witnesses have themselves proved account No. 10570 of Ashoka Trading Syndicate where address proof was taken at the time of opening of the bank account. In the said account, numerous transactions have taken place which shows the existence of the said firm. IO has not made any inquiry from accused No. 3, Arvind Khanna nor asked for Books of Accounts of the said firm. Thus, statement of few private witnesses or the postman regarding non existence of the said firm cannot be relied upon. Ld. Counsel also argued that in the survey report, the address of Kapurthala Oil Company has been wrongly given as 'Dhak Bazar, Sangrur' whereas actually it is 'Dak Bazaar'. PW 18 Sh Kulwant Rai, PW19 Sh Parminder Singh, PW20 Sh Prem Chand and PW 22 Sh Subhash Chander Jain are not officials of municipality who would have record of all the premises/buildings and thus their statements are not sufficient to prove the non existence of Kapurthala Oil Company. Further PW 25 Sh Tara Singh, PW26 Sh Major Singh and PW 30 Sh Brij Mohan Pandit have not even deposed about Dak Bazar and thus, their testimonies are of no relevance. It is also argued by Ld. Counsel that the documents with regard to the transporter i.e. M/s Goods Transport Company had been taken by the CBI Case No. 33/12 15 of 49 recovery agent. The only available address of the transporter is in the survey report which is 'Behind Telephone Exchange, G.T. Road, Chikambarpur, U.P. Border, Ghaziabad'. The testimony of PW 11, Sh. Dinesh Kumar Sharma is not conclusive since as per him, one more postman was posted in his area. The depositions of PW 14, Sh. Ashok Sehgal and PW 15 Sh. Veer Pal Singh are also of no use since they only knew about the transporters in the vicinity of their own offices and they have not ruled out the possibility of existence of M/s Goods Transport Company in Chikambarpur. The testimony of PW 17 Sh. Mahi Pal Sharma is of no relevance since he stated that he has no knowledge about the transporters in the area in the year 1997 to 1999. Further, there is no investigation with regard to the truck despite the fact that details thereof were available with the IO. Ld. Counsel has also argued that there is only oral testimony of PW7 Sh. Adev Kumar Aggarwal and PW 8 Sh. S.K. Chandel to the effect that no surveyor was appointed by Sangrur Divisional Office of NIC. However, the documentary evidence required to substantiate their version i.e. specimen letterhead/ stamp and statement of bank accounts of PW7 Sh Adev Kumar Aggarwal, and dispatch register, surveyor appointment register and claim intimation register of Sangrur Divisional Office have not been produced by the prosecution. He further argues that both the said witnesses are admittedly themselves accused in a cheating case and thus they are not worthy of any credit. 8.4 Ld. counsel also argued that in offences of conspiracy, though direct evidence may not be available, prosecution is still required to prove its case through circumstantial evidence. Conspiracy cannot be assumed and it cannot be based on conjectures. He argues that in the present case, there is no evidence regarding the presence of accused persons together or any CBI Case No. 33/12 16 of 49 communication between them to show that they had a meeting of mind or that they agreed to commit any illegal act. The prosecution has also not been able to lead any evidence to show that there was any mutual interest of the accused persons and there has been no evidence regarding trail of money after it was credited in the account of accused No. 3, Arvind Khanna. Prosecution has also not been able to show as to who was the Chief propounder of the conspiracy. Ld. counsel has in this regard also relied upon Subramaniam Swamy Vs. A. Raja (supra), Inspector of Police , Tamil Nadu Vs. John David, 2011 Cri LJ 3366, Hanuman Govind, Nargundkar and Another Vs. State of M.P., 1953 Cri LJ 129 SC, Sharad Biridhichand Sarda Vs. State of Maharashtra, 1984 Cri LJ 1738, K.R. Purushothaman Vs. State of Kerala (supra), Rabindra Kumar Dey Vs. State of Orissa, 1977 AIR 170, S.L. Goswami Vs. State of Madhya Pradesh, 1972 AIR 716, R. Venkatakrishnan Vs. Central Bureau of Investigation, Criminal Appeal No. 76 of 2004 and State of Tamil Nadu through Superintendent of Police and CBI/SIT Vs. Nalini and 25 others, decided on 11-05-1999. Ld. counsel thus concludes that prosecution has not been able to prove its case against the said accused.
Arguments on behalf of Accused No. 4, Ramesh Khaneja. 8.5 Sh. Bhola Singh, counsel for accused No. 4 Ramesh Khaneja argued that the survey report submitted by the said accused is not on record and the survey report available on record is signed by one Ramesh Sharma and not by the accused. There is no evidence to show that it is signed by accused No. 4 Ramesh Khaneja and thus, he cannot be held liable for the said report. He further argued that even otherwise, the prosecution has not been able to prove that Kapurthala Oil Company or M/s Goods Transport CBI Case No. 33/12 17 of 49 Company were not existing at their given address.
8.6 The general propositions of law laid down in the judgments cited by the parties have not been disputed.
Points for determination.
9.1 I have heard all the parties and have also perused the record. In the instant case, as per the charges framed, the following points are required to be determined:-
A. Charge u/s 120-B r/w Section 420, 467, 468, 471 IPC & Section 13 (2) r/w Section 13 (1) (d) of the PC Act, against all the accused persons namely accused No. 1, M.L. Mathur, accused No. 2, Y.P. Babbar, accused No. 3, Arvind Khanna and accused No. 4, Ramesh Khaneja.
i. Whether during the year 1998-99, at New Delhi and other places, all the accused persons namely accused No. 1, Moti Lal Mathur, accused No. 2, Yash Pal Babbar, accused No. 3, Arvind Khanna and accused No. 4, Ramesh Khaneja entered into an agreement?
ii. If so, whether they had agreed to cheat NIC, DO - XIII, New Delhi by fraudulently inducing it to sanction insurance claim in the name of Ashoka Trading Syndicate, Delhi under the proprietorship of accused No. 3, Arvind Khanna, to the extent of Rs.2,74,705/- on the basis of forged/bogus/false documents i.e. invoice, GR, survey report etc. and by using as genuine such documents and by commission of criminal misconduct by public servants i.e. accused No. 1, Moti Lal Mathur and accused No. 2, Yash Pal Babbar?
CBI Case No. 33/12 18 of 49
iii. If so, whether in pursuance of the said agreement, accused No.
3, Arvind Khanna, Proprietor of Ashoka Trading Syndicate obtained marine policy No. 4500361 for dispatch of industrial benzonate from Ashoka Trading Syndicate, Delhi to Kapurthala Oil Company, Sangrur (Punjab) and he submitted false claim form for claim insurance in NIC, DO-XIII and received the claim amount from NIC, DO-XIII, New Delhi for which he was not entitled and accused No. 1, Moti Lal Mathur, Administrative Officer, processed and recommended the insurance claim and accused No. 2, Yash Pal Babbar sanctioned the claim amount of Rs.2,74,705/- in favour of M/s Ashok Trading Syndicate, Delhi on the basis of false/bogus/forged documents and accused No. 4, Ramesh Khaneja of Globe Claims Recovery Consultants submitted false report without any verification of the case and received fee from NIC, DO-XIII, New Delhi to which he was not entitled?
B. Charge u/s 13 (2) r/w section 13 (1) (d) of the PC Act against accused No. 1, Moti Lal Mathur.
(i) Whether during the period 1998-99, accused No. 1, Moti Lal Mathur was a public servant i.e. Administrative Officer, NIC, DO -XIII, New Delhi?
(ii) If so, whether during the above period at Delhi and other places, accused No. 1, Moti Lal Mathur obtained pecuniary advantage to the tune of Rs.
2,74,705/- for accused No. 3, Arvind Khanna, Proprietor, Ashoka Trading Syndicate, Delhi and caused corresponding loss to the NIC, DO-XIII, New Delhi by persuading to forward and recommending the claim proposal on the basis of false/forged/bogus documents for grant of above claim which was sanctioned on his recommendation?
(iii) If so, whether accused No. 1, Moti Lal Mathur did as above by use of CBI Case No. 33/12 19 of 49 illegal means and abuse of his official position?
C. Charge u/s 13 (2) r/w section 13 (1) (d) of the PC Act against accused No. 2, Yash Pal Babbar.
(i) Whether during the period 1998-99, accused No. 2, Yash Pal Babbar was a public servant i.e. Assistant Manager, NIC, DO-XIII, New Delhi?
(ii) If so, whether during the above period at Delhi and other places, accused No. 2, Yash Pal Babbar obtained pecuniary advantage to the tune of Rs. 2,74,705/- for accused No. 3, Arvind Khanna, Proprietor of Ashoka Trading Syndicate and caused corresponding loss to the NIC by sanctioning the above claim amount on the basis of false/forged/bogus documents i.e. invoices, GR, survey report, etc.?
(iii) If so, whether accused No. 2, Yash Pal Babbar did as above by use of illegal means and abuse of his official position?
D. Charge u/s 420 IPC against accused No. 3, Arvind Khanna.
(i) Whether during the period 1998-99 at Delhi and other places, accused No. 3, Arvind Khanna deceived NIC, DO-XIII, New Delhi?
(ii) If so, whether accused No. 3, Arvind Khanna induced NIC, DO-XIII, New Delhi to sanction insurance claim of Rs.2,74,705/- in favour of Ashoka Trading Syndicate on the basis of false/bogus/forged documents i.e. Invoice, GR, survey report, etc.?
(iii) If so, whether accused No.3, Arvind Khanna had induced NIC, DO-XIII, New Delhi as above dishonestly?
(iv) If so, whether accused No. 3, Arvind Khanna received the cheque of claimed amount which was credited in his account No. 10570?
CBI Case No. 33/12 20 of 49 E. Charge u/s 471 r/w section 467 & 468 IPC against accused No. 3, Arvind Khanna.
(i) Whether during the period 1998-99 at Delhi and other places, accused No. 3, Arvind Khanna used false/forged/bogus documents i.e. invoice, GR, Survey Report etc., as genuine for inducing NIC, DO-XIII, New Delhi to sanction insurance claim of Rs.2,74,705/- in favour of Ashoka Trading Syndicate of which he was the Proprietor?
(ii) If so, whether he had used the aforesaid documents as genuine knowing or having reason to believe the same to be forged?
(iii) If so, whether he did so fraudulently or dishonestly?
F. Charge u/s 468 IPC against accused No. 4, Ramesh Khaneja.
(i) Whether during the period 1998 at Delhi and other places, accused No. 4, Ramesh Khaneja, being Proprietor of Globe Claim Recovery Consultant was appointed as investigator, in the claim of Ashoka Trading Syndicate?
(ii) If so, whether accused No. 4, Ramesh Khaneja committed forgery by submitting a false investigation report without conducting any verification to NIC, DO-XIII, New Delhi and received fee for which he was not entitled?
(iii) If so, whether accused No. 4, Ramesh Khaneja intended that the aforesaid forged document i.e. bogus report shall be used for the purpose of cheating NIC?
10.1 It is pertinent to refer to Sec. 3 of the Indian Evidence Act, 1872 (hereinafter called as 'IEA') which defines the term 'proved' and d' isproved' as under :-
" ' Proved'- A fact is said to be proved when, after considering the matters CBI Case No. 33/12 21 of 49 before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists"
" ' Disproved'- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist."
10.2 It is well settled that the word 'proof' means anything which serves, either immediately or mediately to convince the mind of the truth or falsehood of a fact or proposition; and the proofs of matters of fact in general are our senses, the testimony of witnesses, documents and the like. " Proof"
does not mean proof to rigid mathematical demonstration, because that is impossible; it means such evidence as would induce a reasonable man to come to the conclusion (vide Emperor v/s Shafi Ahmed, (1925) 31 Bom. LR 515]. Further, Sec. 134 of IEA stipulates that no particular number of witnesses shall in any case be required for the proof of any fact.
10.3 In human affairs, everything cannot be proved with mathematical certainty and the law does not require it. Legal proof is something different from moral certainty about the guilt of an accused person. Suspicion, however, great, cannot take the place of legal proof. A moral conviction, however strong or genuine, cannot amount to a legal conviction supportable in law. The well known rule of criminal justice is that " fouler the crim e, higher the proof." [vide Sharad Birdhichand v. State of Maharashtra, (surpa)].
10.4 In criminal matters, the prosecution is required to prove its case beyond a reasonable doubt. A benefit of doubt is the condition of the mind which exists where the judges cannot say that they feel an abiding condition, a CBI Case No. 33/12 22 of 49 moral certainty of the truth of the charge. It must not be a mere doubt of a vacillating mind that has not the moral courage to decide upon a difficult and complicated question and therefore, takes shelter in an idle scepticism (vide 1977 CrLJ 59) 10.5 It is well settled that the burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.
10.6 However, the rule in section 106 of the Act 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'. The prosecution is not required to eliminate all possible defences or circumstances which may exonerate him. If certain facts are in the knowledge of the accused then he has to prove them. Of course the prosecution has to prove prima facie case in the first instance. In this regard reference can be made to Murlidhar v. State of Rajasthan, AIR 2005 SC 2345, State of Punjab v. Karnail Singh, (2003) 11 SCC 271, Trimukh Maroti Kirkan v. State of Maharashtra, 2007 Cr LJ 20 (SC), Santosh Kumar Singh v. State, (2010) 9 SCC 747 and Ram Singh v. State, 2011 Cr LJ 618 (Raj.), AIR 1959 SC 1390, AIR 1937 Rang 83, 1968 Cri LJ 848, AIR 1967 Mys 79 and 1964 (1) Cri LJ 688.
10.7 Criminal conspiracy is often hatched in secrecy and for proving the offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence. However, it cannot be deemed to have been established on mere suspicion CBI Case No. 33/12 23 of 49 and surmises or inferences which are not supported by cogent evidence. Where the prosecution case rests merely on circumstantial evidence, the facts established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. However, on the basis of evidence led by prosecution, if two views are possible, one pointing to the guilt of the accused and other to his innocence, the one in favour of the accused must be accepted. In this regard, reference can be made to Saju Vs. State of Kerala, (2001) 1 SCC 378, Sherimon Vs. State of Kerala, (2011) 10 SCC 768, P.K. Narayanan Vs. State of Kerala, (1995) 1 SCC 142, State of M.P. V Sheetla Sahai, 2009, Cr. LJ 4436, Shivaji Saheb Rao Bobde v. State of Maharashtra, AIR 1973 SC 2622, Harendra Narain Singh v. State of Bihar, AIR 1991 SC 1842 and Baboo Ram, v. State, 1996 Cri LJ 483.
10.8 The essence of conspiracy is unlawful combination and the complicity of the accused has to be decided after considering all the circumstances proved, before, during and after occurrence. Agreement between the conspirators may also be proved by necessary implication. It is not necessary that each member of a conspiracy must know all the details of the conspiracy. Facts established should be consistent only with the hypothesis of guilt of the accused. It does not mean that each and every hypothesis suggested by accused must be excluded by proved facts. In this regard reference can be made to Chaman Lal Vs. State of Punjab, AIR 2009 SC 2972, R.K. Dalmia V The Delhi Administration, AIR 1962 SC 1821, Muriappan Vs. State of Tamil Nadu, AIR 2010 SC 3718 and Firozuddin Basheeruddin Vs. State of Kerala, (2001) 7 SCC 596.
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10.9 It is also pertinent to refer to Sec 313 (4) of the Cr.P.C. which
stipulates that the answers given by the accused, in his statement under this section, may be taken into consideration in such enquiry or trial, and put in evidence for or against him in any other enquiry into, or trial for, any other offence which such answers may tend to show he has committed. It is well settled that admission or confession of the accused in the statement under section 313, Cr PC in the course of trial can be acted upon and the court can rely on these confessions to proceed to convict him. In this regard reference can be made to Dharnidhar v. State of Uttar Pradesh, (2010) 7 SCC 759 and State of Maharashtra v. Sukhdev Singh, AIR 1992 SC 2100.
10.10 It is also well settled that evidence of one accused or admission or action or statement made by one of the accused can be used as evidence against the other by virtue of Section 10 of the Indian Evidence Act. In this regard reference can be made to Tribhuvan Nath Vs. State of Maharashtra, AIR 1973 SC 450 and Kehar Singh v State, AIR 1988 SC 1883. 10.11 Both the parties have relied upon Claims Procedural Manual, which was admittedly applicable at the relevant time. The said manual, while laying down the procedure for processing and settlement of marine claims provides that the procedures laid down in the Manual are not exhaustive and are of general nature. It further provides that in some cases, the requirements laid down in the Manual could not be in practice complied with due to particular circumstances applicable to the individual case and such non compliance should not therefore, make the claim as not payable and the claim settling authority is to use his discretion by recording his reasons in detail.
10.12 It is in the light of the above position of law that evidence is to be
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appreciated.
Facts Not in Dispute
11.1 From the evidence and other material on record and arguments
advanced by the parties, there appears to be no dispute about the following facts:-
(a) Accused No. 1 Moti Lal Mathur was a public servant i.e. Administrative Officer, NIC, DO-XIII, New Delhi,
(b) Accused No. 2 Yash Pal Babbar was a public servant i.e Assistant Manager, NIC. DO-XIII, New Delhi,
(c) Accused No. 3 Arvind Khanna of Ashoka Trading Syndicate, New Delhi obtained marine policy No. 4500361 for Rs.6,95,000/- on 20-10-1998 for dispatch of 10 drums containing industrial benzonate from Delhi to Kapurthala Oil Company, Sangrur vide GR No. 18388 dt. 27-10-1998 of M/s Goods Transport Corporation, Ghaziabad,
(d) Claim file was initiated and the claim was processed, inter-alia, on the basis of purported documents viz; survey report, dt. 02-11-1998 of Sh. Adev Kumar Aggarwal, forwarded by Sh. S.K. Chandel, Assistant Manager, NIC, DO, Sangrur vide letter dt. 05-11-1998 to DO-XIII, NIC, New Delhi,
(e) Claim was recommended by accused No. 1 Moti Lal Mathur and sanctioned by accused No. 2 Yash Pal Babbar for Rs.2,74,705/-,
(f) Accused No. 4 Ramesh Khaneja of Globe Claims Recovery Consultants was appointed verifier/recovery agent,
(g) Accused No. 4 Ramesh Khaneja has submitted verification report dt.
02-12-1998,
(h) The claim amount, vide cheque No. 258052 dt. 14-12-1998 of Indian CBI Case No. 33/12 26 of 49 Overseas Bank, New Delhi, was received by accused No. 3 Arvind Khanna and proceeds thereof were credited into current account No. 10570 of Ashoka Trading Syndicate,
(i) An amount of Rs.13,430/- was deposited by accused No. 4 Ramesh Khaneja of Globe Claims Recovery Consultants as recovery amount, vide bankers cheque No. 827190 dt. 05-01-1999, drawn on SBI, Jhandewalan Extn.,
(j) An amount of Rs.5,890/- was paid by NIC to accused No. 4 Ramesh Khaneja as recovery fee, vide cheque No. 258209 and Disbursement Voucher No. 3426 dt. 23-12-1998.
Facts in Dispute 12.1 However, the following facts are in dispute :-
(a) Ashoka Trading Syndicate did not exist at "B-V/100, Sector 11, Rohini, Delhi-110085" i.e. its address given in the claim form and other documents submitted by accused No. 3 Arvind Khanna in NIC, DO-XIII,
(b) Kapurthala Oil Company did not exist at "Dhak Bazar, Sangrur, Punjab",
(c) M/s Goods Transport Corporation did not exist at, "Behind Telephone Exchange, GT Road, Chikambarpur UP Border, Ghaziabad",
(d) No consignment, as covered by the marine policy in the case, was sent by Ashoka Trading Syndicate,
(e) No claim intimation was received by DO, Sangrur, NIC,
(f) No surveyor was appointed by DO Sangrur, NIC, and thus survey report, dt. 02-11-1998 purportedly submitted by Sh. Adev Kumar Aggarwal is CBI Case No. 33/12 27 of 49 forged,
(g) No letter dt. 05-11-1998 was sent by Sh. S.K. Chandel, Asstt. Manager, NIC, DO Sangrur to DO-XIII, Delhi and thus the said letter is forged,
(h) Verification report dt. 02-12-1998, Ex.PW5/H submitted by accused No. 4 Ramesh Khaneja is false,
(i) No recovery was made by accused No. 4 Ramesh Khaneja from M/s Goods Transport Company.
Appreciation of evidence.
13.1 The main fact in issue in this case is whether there was any loss of consignment of industrial benzonate purportedly sent by Ashoka Trading Syndicate, New Delhi to M/s Kapurthala Oil Company, Sangrur through M/s Goods Transport Corporation, Chikambarpur, Delhi-UP Boarder, Ghaziabad, as covered by the insurance policy. The essential parts/components of purported loss of consignment are existence of Ashoka Trading Syndicate, New Delhi, existence of M/s Kapurthala Oil Company, Sangrur, existence of M/s Goods Transport Corporation, Chikambarpur, Delhi-UP Boarder, Ghaziabad, sending of the consignment of industrial benzonate and loss/damage to the said consignment. If any of the above part/component of the transaction in question is disproved, it would, by necessary implication, follow that there was no loss of consignment and that the claim amount has been fraudulently obtained.
13.2 Prosecution has led evidence and Ld. PP has advanced argument to the effect that complete documents required for processing and settlement of claim are not available in the claim file which shows that the claim has been fraudulently obtained. Ld. Defence counsels contend that the CBI Case No. 33/12 28 of 49 complete chain of handing over of record has not been proved and thus absence of any document in the claim file is of no relevenace. It is pertinent to note that the claim files were the record of DO-XIII, NIC. The officer/official of DO-XIII from whose custody, the said files/record were seized for the first time has neither been specified nor examined by the prosecution to prove that complete record with respect to the claim in question was seized, or that the record produced in the court was the complete record, as available in DO-XIII at the time of sanction of the claim. Further, no inventory of the documents available in the claim files was prepared, and the record seized was also not sealed either at the time of their seizure by the officers of Regional Office of NIC or by the IO. Thus, no sanctity of preservation of documents seized was maintained. Therefore, the above contention of Ld. PP is not tenable. In this regard, a reference can also be made to the judgment dated 28-05-2013 of the Hon'ble High Court of Delhi in Crl. Appeal No.1455/2012, Anil Maheshwari v/s CBI.
Non - existence of Ashoka Trading Syndicate 13.3 PW 21 Sh. B.K. Yadav has testified about handing over various documents pertaining to account No. 10570 of Ashoka Trading Syndicate at SBI, Jhandewalan Extension to the IO vide seizure memo, Ex.PW21/A, which bears his signatures at point A. He also deposed about letter, dt. 27-02-2002, Ex.PW21/A-1, which was issued under the signatures, at point A ' ,' of Sh.
Ashok Gautam, Branch Manager, seizure memo, dt. 25-09-2002, Ex.PW21/A-2, vide which he has handed over the original banker's cheque application form for Rs.13460/-, Ex.PW21/A-3 and original banker's cheque No. 827190, dt. 05-01-1999, Ex.PW21/A-4 for Rs.13,430/-, to the IO. He has also identified signatures of Sh. Yogesh Chand, Accountant on the banker's CBI Case No. 33/12 29 of 49 cheque, Ex.PW21/A-4. He has further testified about letter, dt. 01-03-2002, Ex.PW21/A-5 which bears signatures of Sh. Ashok Gautam, at point A, statement of account of account No. 10570, pertaining to Ashoka Trading Syndicate, Ex.PW21/A-6, original current account opening form cum specimen signature card, Ex.PW21/A-7 of Ashoka Trading Syndicate which was allowed to be opened by Sh. Yogesh Chander, pay in slip, dt. 19-12-1998, Ex.PW21/A-8, vide which cheque No. 258052 for Rs.2,74,705/- was deposited in account No. 10570 by Ashoka Trading Syndicate and seizure memo, Ex.PW21/A vide which he had handed over 7 cheques and 2 pay in slips, Ex.PW21/A-9. During his cross-examination, he stated that Ex.PW21/A-5 was prepared and signed by Sh. Ashok Gautam, the Branch Manager in his presence. Ex.PW21/A-6 was got photocopied by him and he gave it to the Branch Manager. He further stated that the documents, Ex.PW21/A-9 contained the signature of Sh. Yogesh Chander.
13.4 PW 23 Sh. Ashok Kumar has testified that on 01-03-02, he was posted as Branch Manager, SBI, Jhandewalan Branch, New Delhi. Ex.PW21/A-7 is the account opening form of current account No. 10570 in the name of Ashoka Trading Syndicate, 106-B, Jhandewalan Cycle Market, New Delhi. He has identified signatures of Sh. Kamal Kapoor, the then Account Clerk at point B on Ex.PW21/A-7 and signature of Sh. Yogesh Chander, Accountant at point A. He further deposed that the account was opened on 22-10-1998 and was closed on 06-12-1999. He also stated that letter, dt. 27-02-2002, Ex.PW21/A-1 bears his signature at point A. Vide this letter, he had informed Sh. Jyoti Kumar, Insp. CBI that the account of Ashoka Trading Syndicate whose Proprietor was Arvind Khanna was opened in their branch on 22-10-1998 and that the account was closed. He further deposed about CBI Case No. 33/12 30 of 49 letter, dt. 01-03-2002, Ex.PW21/A-5, addressed to Sh. Jyoti Kumar, Insp. CBI, vide which he has enclosed certified copy of ledger sheet of Ashoka Trading Syndicate. He has also identified the signatures of Sh. S.K. Jatav, the then Branch Manager, SBI at point A on Ex.PW21/A-6. During his cross - examination, he, inter-alia, admitted that proof of the address of the person who opens an account with bank is taken at the time of account opening. When this witness was examined again as PW 28, he deposed that vide letter, dt. 27-02-2002, Ex.PW21/A-1, he has sent account opening form of Ashoka Trading Syndicate, Ex.PW21/A-7 to the CBI. Ex.PW21/A-7 bears signatures of Sh. Kamal Kapoor, Counter Clerk at point B and signature of Sh. P.K. Bhatia, the Introducer at point C. He further stated that vide letter, dt 01-03-2002, Ex.PW21/A-5, he has sent certified copy of ledger sheet, Ex.PW21/A-6 in respect of Ashoka Trading Syndicate to the CBI which bears signatures of Sh. S.K. Jatav, Former Branch Manager at point A and signature of Sh. Yogesh Chander, Accountant at point B. During his cross - examination, he admitted that when Ex.PW21/A-6 was prepared, he was present in the branch. They have got prepared a photocopy of the ledger, Ex.PW21/A-6. He denied the suggestion that Ex.PW21/A-6 was not a true document since it has not been certified in terms of the Banker's Book Evidence Act. 13.5 The testimonies of PW 21, Sh. B.K. Yadav and PW 23/PW28 Sh. Ashok Kumar have gone unrebutted and unimpeached. Accused No. 3 Arvind Khanna has also not disputed the documents pertaining to his current account No. 10570 proved by the said witnesses. When the above evidence was put to him during his statement u/s 313 Cr. P.C., accused No. 3 Arvind Khanna stated that he has nothing to say in this regard. It is pertinent to note that as per the account opening form, Ex.PW21/A-7 of Ashoka Trading Syndicate, CBI Case No. 33/12 31 of 49 the address of the account holder has been given as "106-B, Jhandewalan Cycle Market, New Delhi." The name of the Proprietor given is Arvind Khanna and his photograph is also affixed on the said form. It is also not disputed that accused No. 3 has taken the policy No. 360600/4500361/98, dt. 26-10-1998, Ex.PW4/A in the name of Ashoka Trading Syndicate. In the said policy, the address of M/s Ashoka Trading Syndicate has been given as "B-V/100, Sector-XI, Rohini, Delhi - 85." Further in the letter, dt. 27-10-1998, placed at page No. 2, letter dt. 26-10-1998, placed at page No. 4, marine claim form, placed at page No. 18, letter dt. 03-11-1998, placed at page No. 19 and letter, dt 30-11-1998, placed at page No. 20 of Ashoka Trading Syndicate, in the claim file, Ex.PW2/A, the address of Ashoka Trading Syndicate has been given as "B-V/100, Sector-XI, Rohini, Delhi - 85." and these documents have been signed by the Proprietor of Ashoka Trading Syndicate as "Ashoka". It may be noted that the bank account, with address, "106-B, Jhandewalan Cycle Market, New Delhi." was opened on 22-10-1998 whereas the policy, with address, "B-V/100, Sector-XI, Rohini, Delhi - 85." was taken on 26-10-1998. It is also pertinent to note that in his bank account, accused No. 3 has signed as Arvind Khanna, whereas all the documents submitted by the said accused in DO-XIII, NIC have been signed as "Ashoka". There is no explanation by accused No. 3 Arvind Khanna as to how a different address of Ashoka Trading Syndicate has been mentioned in the policy after 4 days of opening the bank account and why the various documents of Ashoka Trading Syndicate submitted to NIC bears signatures in the name of A ' shoka'. It has not been clarified by accused No. 3 Arvind Khanna as to who is A ' shoka'.
This shows the dishonest intention on the part of accused No. 3 Arvind Khanna to conceal his identity in the records of NIC and to cheat NIC from the CBI Case No. 33/12 32 of 49 very beginning. In view of the above, the address given in the policy is apparently false and it is clear that Ashoka Trading Syndicate did not exist at the said address.
Non - existence of Kapurthala Oil Company 13.6 It is observed that there is no document of Kapurthala Oil Company in the claim file. In Surveyor's Report, Mark X-1 and Verification Report, Ex.PW5/H, the address of Kapurthala Oil Company is given as " Dhak Bazar, Sangrur" . No premises /shop No. or street/road No. or any other landmark has been given. " Dhak Bazar" was not found to be existing in Sangrur. Thus investigation about the existence of the said firm could be conducted only from certain shopkeepers / Postmen at Sangrur. 13.7 PW 18, Sh. Kulwant Rai, who is doing business of tractor parts in Sangrur since 1983, under the name and style of Kulwant Tractor and Machinery Store, testified that there is no place in the name of Dhak Bazar, Sangrur and he had never heard the name of Kapurthala Oil Company. During his cross- examination, nothing material could be elicited. He continued to maintain that there is no company in the name of Kapurthala Oil Company in Sangrur and stated that Sangrur is a very small place. 13.8 PW 19 Sh. Parminder Singh, working as Manager in the petrol pump in the name of Pal Service Station deposed that there is no place in the name of Dhak Bazar in Sangrur. He had never heard the name of Kapurthala Oil Company in Sangrur. During his cross - examination, he stated that the main Post Office is also know as Dak Post. He admitted that he does not know all the companies functioning in Sangrur and it was not possible that if Kapurthala Oil Company exist in Sangrur, he would not have heard of the same.
CBI Case No. 33/12 33 of 49
13.9 PW 20 Sh. Prem Chand, who is doing the business of tractor
parts in the name and style of M/s New Jamindara Machinery Stores since 1985 stated that there is no place in the name of Dhak Bazar in Sangrur and he has never heard the name of Kapurthala Oil Company in sangrur. During his cross - examination, he denied the suggestion that the bazar near the post office is also known as Dak Bazar. He also denied the suggestion that Kapurthala Oil Company was functioning near the Post Office at Sadar Bazar but he was not aware of it.
13.10. PW 22 Sh. Subhash Chander Jain, who has been running a shop in the name and style of M/s Chilli Auto Part, Mehala Road, Sangrur since 1983 testified that he has never heard of any company by the name of Kapurthala Oil Company in Sangrur which was dealing in industrial benzonate. Even no such company by the name of Kapurthala Oil Company is in existence today. During his cross-examination, he stated that he know only those traders who are in his trade. He admitted that he does know any of the trader who deals in industrial benzonate trade. He could not say if any company by the name of Kapurthala Oil Company existed in Sangrur dealing in the said oil.
13.11 PW 25 Sh. Tara Singh, who had been posted in GPO, Sangrur for about 20 years and was distributing dak in Mehala area, Sangrur, deposed that there was no firm by the name of Kapurthala Oil Company in Mehala Road Area and he had never distributed any dak in the name of said firm. During his cross- examination, he stated that during the period of 17 years, when he was posted for distribution of dak in the beat area of Mehala Road, no other postman was posted there for delivery of dak besides him. When he used to be on leave, some substitute postman was assigned duty of CBI Case No. 33/12 34 of 49 distributing dak in Mehala Road beat area. He admitted that the basis of his knowledge of non existence of Kapurthala Oil Company is that he did not receive or deliver any dak to the said firm. He further stated that he has no idea if any firm in the name of Kapurthala Oil Company existed outside his beat area.
13.12 PW 26 Sh. Major Singh, Postman, working in GPO, Sangrur since the year 1992 testified that since 1997, he is working in Gaushala Road Beat and was distributing dak in the name of residents, firms/companies on Gaushala Road area. In his beat area, there was no firm in the name of Kapurthala Oil Company because he had neither distributed any dak in the name of the said firm nor he had returned any dak in the name of Kapurthala Oil Company. During his cross- examination, he stated that the basis of his knowledge of non existence of Kapurthala Oil Company was that he did not receive or deliver any dak to the said firm. He further stated that he had no idea if any firm in the name of Kapurthala Oil Company existed outside his beat area.
13.13 PW 30 Sh. Brij Mohan Pandit has testified that he was deputed to investigate about existence of certain companies in Punjab, by SP, EOW-I. He accordingly went to Sangrur on 30-04-2002 and made inquiries about Kapurthala Oil Company. He found that no such company was in existence in Sangrur. He made inquiries from the existing oil companies and petrol pumps as well as the concerned Postman of the area in Sangrur. The address of Kapurthala Oil Company was given to be at Gaushala Road and Mehlan Road. However, at both the places, he could not find the said oil company. During his cross-examination, he stated that the focus of his inquiry in Sangrur was the existence of Kapurthala Oil Company. All the witnesses had CBI Case No. 33/12 35 of 49 stated that no such company was in existence. No witness stated contrary to the above conclusion. He had gone to Gaushala Road and Mehlan Road which was the purported address of Kapurthala Oil Company. Gaushala Road and Mehlan Road were commercial areas. To the suggestion that Kapurthala Oil Company existed at Dak Bazar, Sangrur, he stated that he had not made any inquiries at Dak Bazar, Sangrur. However, he inquired from the oil companies working in Sangrur who denied the existence of Kapurthala Oil Company.
13.14 The testimonies of above witnesses are natural and have gone unimpeached. Ld. defence counsels have argued that their testimonies are not conclusive regarding the non existence of Kapurthala Oil Company. It is pertinent to note that had accused No. 3 Arvind Khanna entered into any business transaction with Kapurthala Oil Company, he would have known the owner or the person managing the said company. However, no question has been put or suggestion given to the above witnesses regarding the owner or the person managing Kapurthala Oil Company. It is considered that when the only address of Kapurthala Oil Company available on record was "Dhak Bazar, Sangrur", it was not possible for prosecution to bring any other evidence on record. From the testimonies of PW 18, Sh. Kulwant Rai, PW 19, Sh. Parminder Singh and PW 20, Sh. Prem Chand, what has emerged very clearly is that there was no "Dhak Bazar" in Sangrur. Therefore, there is no question of existece of Kapurthala Oil Company at "Dhak Bazar, Sangrur". Under these circumstances, the existence of Kapurthala Oil Company, as professed by accused No. 3 Arvind Khanna, was a fact which, if true, would have been especially within his knowledge. Once, the prosecution has led evidence to the effect that no such firm existed, the onus to prove such fact, CBI Case No. 33/12 36 of 49 the affirmative of which is being asserted by him, shifted upon the accused. Accused persons have failed to lead any evidence in this regard. Thus it can be safely concluded that no Kapurthala Oil Company existed at "Dhak Bazar, Sangrur".
Non - Existence of M/s Goods Transport Company 13.15 It is pertinent to note that in the Verification Report, dt. 02-12-1998, Ex.PW5/H, address of M/s Goods Transport Corporation has been given as " Behind Telephone Exchange, G.T. Road, Chikambarpur, UP Border, Ghaziabad." No premises/shop/office number or other detail regarding the address of the said transport company is available on record. PW 11 Sh. Dinesh Kumar Sharma, working as Postman at Chikambarpur, Ghaziabad, UP has testified that from December 1988, he was delivering dak to the transporters situated in the area of Chikambarpur. He had never served dak to M/s Goods Transport Corporation, behind Telephone Exchange, GT Road, Chikambarpur as he has never come across the said transporter which was not existing at the given address. He stated that his area of delivery assignment was from Chikambarpur Telephone Exchange, 6 Milestone, Rawalpindi Garden, Jawahar Park, Shaheed Nagar. He further stated that one more Postman was posted for delivery of dak in this area. He admitted that the basis of his conclusion that the said firm did not exist at the stated address was that he had never received any dak for delivery to the said firm. It was also brought out during his cross - examination, that Chikambarpur was haphazardly constructed and several offices were known to be resident in one building at many places.
13.16 PW 14 Sh. Ashok Sehgal, who is doing business under the name and style of M/s Assam Golden Transport Corporation, opposite OBC, CBI Case No. 33/12 37 of 49 near Telephone Exchange, 6, milestone, Chikambarpur, UP Border, Ghaziabad, UP testified that he knew most of the transporters near the telephone exchange. As per his knowledge, M/s Goods Transport Corporation was not existing behind telephone exchange, GT Road, Chikambarpur, UP Border, Ghaziabad. During his cross - examination, it was brought out that Chikambarpur is an unauthorized area and there is no systematic inhabitation, there is a trade association of transporters in the area and he admitted that the above transporter was not within his vicinity and therefore not in his knowledge and it was possible that the said transporter might be operating from interior which may not be in his knowledge.
13.17 PW 15 Sh. Veer Pal Singh, working as Manager in the firm M/s Okara Roadway, 6 Milestone, Post Office Chikambarpur, Ghaziabad, UP has deposed that he was aware of the transporters within the vicinity of his office. He was not aware of M/s Goods Transport Corporation, if working near the vicinity of their office. He had not seen their signboard. During his cross - examination, it was brought out that the shops and establishments at 6, milestone, do not have any municipal number, it is an unauthorized area, constructed in disorganized way, in one compound there are 4 to 5 offices, many transporters have their signboard and some of them may not have their signboards affixed on the building, they may not have dealt with all the transporters of their area and that he may not have come across the above transporter because he had neither dealt with the said transporter nor seen them in the area.
13.18 PW 17 Sh. Mahipal Sharma, posted at Police Chowki Seema, P.S. Sahibabad, Distt. Ghaziabad UP testified that he has never heard of the transporter in the name of M/s Goods Transport Corporation. However, during CBI Case No. 33/12 38 of 49 his cross-examination, he admitted that he has no knowledge about the transporters in the area of Chikambarpur, in the years 1997, 1998 and 1999. 13.19 It is relevant to note that PW 14, Sh. Ashok Sehgal and PW 15 Sh. Veer Pal Singh are also in the transport business, having their offices in the same area i.e. 6 Milestone, Chikambarpur, which is also the address of the purported M/s Goods Transport Corporation. Thus, they were likely to know about the existence of other transporters in their vicinity. The testimonies of these witnesses are quite natural and have gone unimpeached. Further PW 11, Sh. Dinesh Kumar Sharma who was working as Postman at Chikambarpur would have, in the normal course, known M/s Goods Transport Corporation, if it existed in the area of Chikambarpur. His testimony that he has never served dak to M/s Goods Transport Corporation as he has never come across the said transporter which was not existing at the given address supports prosecution version. The fact that one more postman was posted for delivery of dak in the said area does not negate his testimony. The prosecution, with the address of M/s Goods Transport Company, as available on record, could not have collected any other evidence in this regard. Further, as discussed later, the source of recovery amount deposited in this case was accused No. 3 Arvind Khanna and not the transporter. From the aforesaid evidence, it appears that M/s Goods Transport Company did not exist at its given address. In any case, it can be safely concluded that no such transporter was involved in carrying any consignment, as covered by the policy.
No Survey and No Role of NIC, DO, Sangrur 13.20 PW 7 Sh. Adev Kumar Aggarwal has testified that in 1998, he was having a shop at Amreek Singh Road, Bhatinda, where he used to sell CBI Case No. 33/12 39 of 49 paints. He was having a surveyor's license with him which was valid upto May 1998. He was empaneled with Oriental Insurance Co. Ltd. He had not worked at all as a surveyor. He had not filed any survey report in any insurance company. Ex. PW5/G was not submitted by him nor it bears his stamp and signatures. Someone had forged his signatures on Ex.PW5/G. Letter head on which report, Ex.PW5/G is written seems to be same as his letterhead. Survey report, dt. 02-11-98, Mark X1 neither bears his signatures nor his stamp. Receipt dt. 02-11-98, Mark X2 was not issued by him. It does not bear his signatures and stamp. Receipt, dt. 02-11-98, Mark X3 was not issued by him. It also does not bear his signatures and stamp. During his cross-examination on behalf of accused No. 2, Yash Pal Babbar, he admitted that he was an accused in a case filed by CBI which is pending before the court of Sh. S.P. Garg., Spl. Judge, New Delhi (now Hon'ble Judge, High Court of Delhi). In that case, 3 forged reports are there which do not belong to him. He does not recollect whether his specimen writing and signatures were taken by CBI for comparison. Neither he had given copy of his bank account statements nor CBI asked for it to ascertain whether he obtained any fees for survey report from any insurance company. He does not recollect whether copy of his letter head and print of his stamp was obtained by CBI for comparison or not. He was having a letter head in his name. He had not got prepared any stamp in his name. He has denied the suggestions that stamp and signatures on Ex.PW5/G were authentic.
13.21 It is pertinent to note that in the marine survey report, dt. 02-11-1998, Mark X-1, it is stated that the surveyor had contacted representative of the consignor and the consignee who gave the relevant documents i.e invoice, GR connected with the claim. If the said report was CBI Case No. 33/12 40 of 49 true, accused No. 3 Arvind Khanna would have known about his representative who had met the surveyor. However, no cross examination was done of the said witness in this regard or otherwise. Had his representative met the surveyor he would have surely cross-examined him in this regard. The testimony of this witness has gone unrebutted. The mere fact that he is also an accused in a similar matter, does not, per-se, warrant rejection of his deposition.
13.22 PW 8, Sh. Santosh Kumar Chandel, Asstt. Manager in Sangrur, DO of NIC from August/Sept. 1996 till July 2003 testified that he was looking after technical claims. He used to receive intimation regarding claims, appoint surveyors, process claim reports, and send papers to the concerned divisional office. Mark PW 8/1 does not bear his signatures and was not written form his office. It is a bogus letter. Whenever he signs, he write his full name. Mark X1, Mark X2 and Mark X3 were not sent from their office along with mark PW 8/1. No surveyor was appointed from their office concerning Mark PW8/1 since no intimation of claim was received in their office. During his cross-examination on behalf of accused No. 2 Yash Pal Babbar, he stated that they maintain a record concerning appointment of surveyors in claims. He is an accused in a cheating case before this court, filed by CBI. He denied that he had deposed false facts at the instance of CBI, since he is an accused in one of the case. He has not checked dispatch and issue register to ascertain whether Mark PW 8/A was received in their office. He denied that Mark PW8/1 bears his signatures and these documents pertain to their office. Sh Adev Kumar Aggarwal was not empaneled as a surveyor for marine claim in Sangrur Office. He does not remember at this juncture whether he was empaneled for other claims or not. He admitted that their claims were also there for remote CBI Case No. 33/12 41 of 49 areas and they used to get service from other divisions. There were no guidelines requiring an officer to go to the office of service providing division and to verify as to whether the report is correct or not. He could not confirm whether stationery used for Mark PW 8/1 pertains to their office or not. 13.23 The testimony of PW8 Sh. S.K. Chandel has gone by and large unrebutted. It cannot be rejected merely on the ground that he is also an accused in some other case.
13.24 From the aforesaid, it is clear that DO, Sangrur, NIC did not receive any intimation of loss, they did not appoint any surveyor and they did not write any letter to DO-XIII, NIC with respect to the policy in question and thus, the purported documents i.e. letter, dt. 05-12-1998 of Sh. Adev Kumar Aggarwal, Ex.PW5/G, survey report, dt. 02-11-98, Mark X-1, two receipts, dt. 02-11-1998, Mark X-2 and X-3 and Mark PW 8/1 are forged documents. 13.25 When the entire evidence with regard to, non existence of Ashoka Trading Syndicate, Kapurthala Oil Company and M/s Goods Transport Company, no survey and no role of NIC, DO, Sangrur is seen together, it is clearly established that that no consignment, as covered by the policy in question, was sent by accused No. 3 Arvind Khanna. Consequently, there was no loss of consigment and the claim amount has been fraudulently obtained on the basis of forged documents.
Verification Report 13.26 In the verification report, Ex.PW5/H of Globe Claims Recovery Consultant, it is stated that their representative had gone to the office of Ashoka Trading Syndicate at B-5/100, Sector - II, Rohini, Delhi, met Sh. Ashok Kumar, Proprietor of the firm, verified that consignment of 10 drums of industrial benzonate were dispatched through M/s Goods Transport CBI Case No. 33/12 42 of 49 Corporation, visited the carriers M/s Goods Transport Corporation along with Proprietor of the insured, went to the consignee's place at Sangrur and met Sh. K.L. Mittal, Partner of Kapurthala Oil Company. It is finally opined that the claimants have suffered a loss of 798 litres industrial benzonate. In view of the fact, inter-alia, that the Proprietor of Ashoka Trading Syndicate is Arvind Khanna and not any Ashok Kumar and the fact that no consignment was sent, and there was no loss of consignment, the verification report is, by necessary implication, false.
13.27 In his statement u/s 313 Cr.P.C., accused No. 4 Ramesh Khaneja has stated that he was working alone and was not having any employee or agent. He has been falsely implicated by the CBI. The report submitted by him in the present claim is not on record. Some other report in the name of firm Globe Claim Recovery Consultant had been wrongly used in this case to implicate him. The same has been signed by some other person named Ramesh Sharma and not by him. It is pertinent to note that prosecution has not been able to prove the signatures at point Q-140 on the verification report, dt. 02-12-1998, Ex.PW5/H. No opinion has been expressed by CFSL regarding the authorship of the said signature. However, it is not disputed that accused No. 4 Ramesh Khaneja was appointed as verifier. Accused No. 4 Ramesh Khaneja has not cross-examined PW 5 Sh. Vinod Kumar who has deposed about the report, Ex.PW5/H. Accused No. 4 Ramesh Khaneja has stated that the report submitted by him is not on record. However, he has neither produced copy of the report which was submitted by him nor stated as to what was the report which was filed by him. It is also pertinent to note that the verification report, Ex.PW5/H bears an endorsement, "Recd." under the signature of accused No. 1 Moti Lal Mathur at point A. CBI Case No. 33/12 43 of 49 During his cross examination, DW 3 Moti Lal Mathur has testified that Globe Claim Recovery Consultant had submitted a report, Ex.PW5/H. From the aforesaid, it is clear that the verification report, Ex.PW5/H was submitted by accused No. 4 Ramesh Khaneja only.
No recovery made from M/s Goods Transport Company 13.28 It is also pertinent to note that a sum of Rs.13,430/- had been shown to have been recovered from M/s Goods Transport Corporation and deposited with DO-XIII, NIC vide receipt, dt. 11-01-1999, Ex.PW5/K by accused No. 4 Ramesh Khaneja. However, vide banker's cheque application form for Rs.13,460/-, dt. 05-01-1999, Ex.PW21/A-3, a banker's cheque for Rs. 13,430/-, dt. 05-01-1999, Ex.PW21/A-4 was got prepared by accused No. 3 Arvind Khanna. In the application form, Ex.PW21/A-3, the applicant is shown as "Goods Transport Corporation, Ghaziabad, C/o Arvind Kahnna.". It is thus clear that no recovery was made from M/s Goods Transport Corporation and that the banker's cheque for the purported recovery amount was got prepared by accused No. 3 Arvind Khanna. Therefore, accused No. 4 Ramesh Khaneja had falsely shown the recovery amount to have been effected from M/s Goods Transport Corporation and has raised a false bill, dt. 26-11-1998, Ex.PW31/D-1.
Role of Accused No. 1 Moti Lal Mathur and Accused No. 2 Yash Pal Babbar 13.29 It is also relevant to note that in the claim note, dt. 09-12-98, Ex.PW5/B, which is in the handwriting of accused No. 2, it is, inter-alia, written as under :-
"Verification of documents submitted :-
On receipt of all the requisite documents submitted by the claimants the same CBI Case No. 33/12 44 of 49 were given to m/s _______________ for its verification and genuineness. The detailed report submitted by m/s ______________________ has been received. As per their report, the claim documents submitted are in order and may be considered for approval of claim for payment".
It may be seen that the name of the verifier has been left blank in the claim note prepared by accused No. 1 Moti Lal Mathur on 09-12-1998 and approved by accused No. 2 Yash Pal Babbar on 10-12-1998. The verification report, dt. 02-12-1998, Ex.PW5/H had been received by accused No. 1 Moti Lal Mathur on 02-12-1998 itself, as per the endorsement of accused No.1 Moti Lal Mathur at point A on Ex.PW5/H. Further letter, dt. 05-12-1998, Ex.PW5/G has been initialed by accused No 2 Yash Pal Babbar on 07-12-1998 at point A. It has not been explained by accused No. 1 Moti Lal Mathur or accused No. 2 Yash Pal Babbar as to how in the claim note, the name of the verifier has been left blank. Since the note is in the handwriting of accused No. 1 Moti Lal Mathur himself, there was no occasion for not mentioning the name of the verifier if the verification report was available at the time of making the claim note. It thus, appears that at the time of making the note, Ex.PW5/B (also Ex.PW4/C) by accused No. 1 Moti Lal Mathur, and approval of the same by accused No. 2 Yash Pal Babbar, the verification report was not available with them and the same had been manipulated later on. The cirucumstances brought on record indicate that accused No. 1 Moti Lal Mathur and accused No. 2 Yash Pal Babbar had conspired with the other accused persons in order to cheat NIC and they used illegal means and abused their official position in order to obtain pecuniary advance for accused No.3 Arvind Khanna. 14.1 The argument of Sh Umesh Sinha ld counsel for accused No.2 Yash Pal Babbar that there has been a delay in registration of FIR does not CBI Case No. 33/12 45 of 49 hold any water. The case is of cheating and forgery. Unlike offences involving use of criminal force, offences involving cheating and forgery etc may not be detected immediately on commission. Generally, it is only after scrutiny of documents and enquiry that such offences are detected. Ld counsel has not explained as to how there was any undue delay in registration of FIR or how it was fatal to the case? He has also not shown any law which, in the facts of this case, would bar filing of more than one charge sheets in one FIR or would vitiate trial on the ground that FIR has been registered without conducting preliminary enquiry. Thus, his contention in this regard is also not tenable. 14.2 It may be mentioned that the condition precendent for an offence under section 468 is forgery as defined in Section 463 IPC. The condition precedent for forgery is making a false document in terms of section 464 IPC. It may be observed that though verification report, dt. 02-12-1998, Ex.PW5/H has been submitted i.e. used by accused No. 4 Ramesh Khaneja, it has not been proved as to who signed the same. Thus, it is not clear as to who has made the said document. Therefore, it is considered that Section 464 IPC is not attracted and accused No. 4 Ramesh Khaneja cannot be held liable for forgery of the said document. However, it is clear that by submitting a false report and by depositing Rs.13,430/- with NIC, showing the same to have been recovered from M/s Goods Transport Corporation, he was a party to the conspiracy to cheat NIC.
Conclusion.
15.1 In view of the aforesaid discussion, it is considered that the prosecution has been able to prove beyond a reasonable doubt that :-
(a) All the accused persons namely accused No. 1, Moti Lal Mathur, accused No. 2, Yash Pal Babbar, accused No. 3 Arvind Khanna and accused CBI Case No. 33/12 46 of 49 No. 4, Ramesh Khaneja entered into an agreement to cheat, NIC, DO - XIII, New Delhi by fraudulently inducing it to sanction insurance claim in the name of Ashoka Trading Syndicate, New Delhi, under the proprietorship of accused No. 3, Arvind Khanna, to the extent of Rs.2,74,705/- by using as genuine, forged documents and by commission of criminal misconduct by public servant i.e. accused No. 1, Moti Lal Mathur and accused No. 2, Yash Pal Babbar,
(b) Accused No. 1, Moti Lal Mathur being a public Servant, i.e. Administrative Officer, NIC, DO-XIII, by use of illegal means and abuse of his official position, obtained pecuniary advantage to the tune of Rs.2,74,705/- for accused No. 3, Arvind Khanna of Ashoka Trading Syndicate and caused corresponding loss to the NIC by inducing and recommending the claim proposal on the basis of forged documents for grant of above claim which was sanctioned on his recommendations,
(c) Accused No. 2, Yash Pal Babbar being a public Servant, i.e. Assistant Manager, NIC, DO-XIII, by use of illegal means and abuse of his official position, obtained pecuniary advantage to the tune of Rs.2,74,705/- for accused No. 3, Arvind Khanna of Ashoka Trading Syndicate and caused corresponding loss to the NIC by sanctioning the above claim amount on the basis of forged documents,
(d) Accused No. 3, Arvind Khanna deceived and dishonestly induced NIC, DO-XIII, New Delhi to sanction insurance claim of Rs.2,74,705/- in favour of Ashoka Trading Syndicate on the basis of forged documents, i.e. claim bill, claim form, letters, dt. 26-10-1998, 27-10-1998, 03-11-1998 and 30-11-1998, Ex.PW5/J on the letterhead of Ashoka Trading Syndicate signed in the name of "Ashoka" as Proprietor, Survey Report, dt. 02-11-1998, Mark X-1, Surveyor CBI Case No. 33/12 47 of 49 Fee Receipts, dt. 02-11-1998, Mark X-2 and Mark X-3, surveyor's letter, dt.
05-12-1998, Ex.PW5/G and forwarding letter, dt. 05-11-98, Mark PW 8/1 of DO, Sangrur, and received cheque No. 258052, dt. 14-12-1998 for Rs. 2,74,705/- which was credited in current account No. 10570 of Ashoka Trading Syndicate, of which he was the Proprietor, and he also used the aforesaid documents as genuine knowing or having reason to believe the same to be forged.
15.2 However, the prosecution has not been able to prove that accused No. 4, Ramesh Khaneja, Proprietor of Globe Claim Recovery Consultants committed any forgery.
15.3 The points at para 9 are decided accordingly.
15.4 In view of the aforesaid, it is held that :-
a) All the accused persons namely accused No. 1 Moti Lal Mathur, accused No. 2 Yash Pal Babbar, accused No. 3 Arvind Khanna and accused No. 4 Ramesh Khaneja are guilty for commission of offence punishable u/s 120-B r/w section 420/471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988 and they are convicted accordingly.
b) Accused No. 1, M.L. Mathur is also guilty for commission of offence punishable u/s 13 (2) r/w section 13 (1) (d) of the PC Act, 1988, and he is convicted accordingly.
c) Accused No. 2, Yash Pal Babbar is also guilty for commission of offence punishable u/s 13 (2) r/w section 13 (1) (d) of the PC Act, 1988, and he is convicted accordingly.
d) Accused No. 3, Arvind Khanna is also guilty for commission of offences punishable (i) u/s 420 IPC & (ii) u/s 471 r/w section 468 IPC, and he is CBI Case No. 33/12 48 of 49 convicted accordingly.
e) Accused No. 4, Ramesh Khaneja is acquitted of the charge u/s 468 IPC.
16 Let the convicts be heard on the point of sentence on 03-01-2014.
Announced in the Open Court today on 20th Day of December, 2013.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi (ra/pa)
CBI Case No. 33/12 49 of 49