Delhi District Court
Cbi vs . G.C.Gupta & Ors. on 16 October, 2014
Judgement in the matter of:-
CC No.: 36 / 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.: 36/2011
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
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Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(ii) Arvind Kumar Sharma,
S/o. Late Sh. Sambhu Nath Sharma,
R/o: Flat No. 17, Opposite Dusshera Park,
Jawala Heri, Paschim Vihar,
New Delhi110063.
(iii) Vijay Dayal,
S/o. Sh. Padam Dayal,
R/o: C2/159, Western Enclave,
Pitampura, Delhi110034.
(iv) K.V. Juneja,
S/o. Late Sh. Veer Bhan,
R/o: A26, Saraswati Garden,
New Delhi110015.
... 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: 36 / 2011 Page No.2 of 150
Judgement in the matter of:-
CC No.: 36 / 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.R.K.Kohli, Advocate, Ld.Counsel for accused Arvind
Kumar Sharma , Accused K.V.Juneja and Accused Vijay Dayal.
: J U D G E M E N T :
1.Insurance is an equitable transfer of the "risk of a loss", from one entity to another in exchange for a payment, called premium. An insurer is a company selling the insurance; whereas insured or policy holder, is the person or entity buying the insurance policy. Marine Insurance covers the loss to the cargo, transported through any mode of transport, held between the point of origin and final C.C.No: 36 / 2011 Page No.3 of 150 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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.
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. C.C.No: 36 / 2011 Page No.4 of 150
Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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 RC7E/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, Arvind Kumar Sharma, Vijay Dayal & K.V. Juneja, on the allegations that G.C.Gupta, the then Assistant Manager, National Insurance Company during the year 199798, had entered into a criminal conspiracy with Arvind Kumar Sharma, Proprietor of M/s Solar Enterprises, Vijay Dayal and K.V. Juneja employees of Arvind Kumar Sharma, the object of which was to obtain a marine claim of Rs.4,89,788/ in favour of M/s Solar Enterprises, on the basis of false and forged documents, C.C.No: 36 / 2011 Page No.5 of 150 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
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knowing or having reasons to believe them 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 Arvind Kumar Sharma, Vijay Dayal and K.V.Juneja to submit false and bogus documents, in support of the claim, thereby inducing National Insurance Company Ltd. to release payment of Rs.4,89,788/ in favor of M/s Solar Enterprises owned by Arvind Kumar Sharma and thus obtaining pecuniary advantage for him and corresponding wrongful loss to NIC.
6. Before proceeding further, to delve upon the matter, it is pertinent to have facts interse as emanating from the charge sheet, which led to registration of FIR and filing of the charge sheet by CBI in court, for trial of the accused persons. The same are as under: C.C.No: 36 / 2011 Page No.6 of 150 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
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F A C T U A L M A T R I X :
7. It is alleged that accused Arvind Kumar Sharma, Proprietor of M/s Solar Enterprises vide letter dated 18.06.1998 which was signed by his employee i.e. coaccused Vijay Dayal had requested Manager, NIC for issuance of a Marine Policy for Rs.4,89,788/ covering consignment of curtain clothes to be sent to Ernakulam from Delhi vide GR No. 38015 of M/s Patiala Assam Roadways. It is alleged that the consignment was to be sent to consignee M/s Venkateshwar Handloom, Ernakulam. On the basis of this an insurance policy bearing no. 360900/4500316/98 dated 19.06.1998 was issued by National Insurance Company Ltd. in favour of M/s Solar Enterprises.
8. It has been alleged that insured vide letter dated 10.07.1998 reported the loss of consignment to National Insurance Company Ltd., Divisional OfficeXXIII, New Delhi, which was received by G.C.Gupta, Assistant Manager on C.C.No: 36 / 2011 Page No.7 of 150 Judgement in the matter of:-
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14.07.1998 and he recommended the appointment of tracer. It is alleged that on recommendation of G.C.Gupta M/s Tracer and Recovery Consultants, was appointed by Sh.R.D.Chugh, Sr. Divisional Manager. It is alleged that M/s Tracer and Recovery Consultants had submitted undated tracing report.
9. It has further been alleged that claim was processed by Sh.P.L.Goplani, Sr. Assistant and recommended by G.C.Gupta on 26.08.1998 for an amount of Rs. 4,89,788/ which was approved by Sh.R.D.Chugh, Sr. Divisional Manager.
Thereafter the claim amount was paid to the insured i.e. M/s Solar Enterprises vide cheque bearing no. 240382 of Indian Overseas Bank, R.K.Puram and the same was deposited on 02.09.1998 by insured in his current account with Oriental Bank of Commerce. It is alleged that this current account of M/s Solar Enterprises is being operated by accused Arvind Kumar Sharma.
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Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
10. It is alleged that M/s Pooja International was appointed as "recovery agent" for recovery. It is alleged that documents for recovery were received on behalf of M/s Pooja International on its letter head by accused K.V.Juneja. It is alleged that Proprietor of M/s Pooja International is accused Arvind Kumar Sharma, who is also Proprietor of M/s Solar Enterprises, the consignor and K.V.Juneja and Vijay Dayal are employees of Arvind Kumar Sharma.
11. It is alleged that accused Arvind Kumar Sharma, Proprietor of M/s Solar Enterprises alongwith K.V.Juneja and Vijay Dayal, being his employees, the private persons, had entered into a criminal conspiracy with the officer of NIC, Delhi namely G.C.Gupta Assistant Manager posted in DOXXIII, NIC, Delhi, during the year 1997 - 98. In furtherance of this conspiracy the private persons had submitted bogus / fake documents in support of the claim so as to induce National Insurance Company Limited, Delhi to C.C.No: 36 / 2011 Page No.9 of 150 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
process and pass the claim in favour of M/s Solar Enterprises.
It is alleged that G.C.Gupta, being public servant facilitated them in filing these documents and by abusing his official position as public servant had recommended NIC to release payment to the extent of Rs.4,89,788/ towards claim to cause pecuniary advantage to the other conspirators and corresponding wrongful loss to NIC.
12. It is alleged that M/s Venkateshwar Handloom, Earnakulam, the Consignee, is a non existent firm. It is alleged that the report of M/s Tracer and Recovery Consultants was also found to be bogus. It is alleged that Sh.T.M.Khan, Proprietor of M/s Tracer and Recovery Consultant has denied his signatures on the tracing report and denied having worked with National Insurance Company as Tracer. It is alleged that M/s Solar Enterprises, the consignor and Transporter M/s Patiala Assam Roadways were also non existent at the given addresses during the relevant time and C.C.No: 36 / 2011 Page No.10 of 150 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
the documents submitted in support of the claim were bogus and forged.
13. It is alleged that documents submitted for obtaining the marine cargo claim of M/s Solar Enterprises were forged and bogus and accused Arvind Kumar Sharma in collusion with his official staff i.e. accused K.V.Juneja and Vijay Dayal prepared forged and bogus documents i.e. GR Receipt, Tracing Report under signatures of different names. It is alleged that tracing bill for Rs.5007/ was prepared by Vijay Dayal under his signatures and claim bill for Rs.4,89,788/ was signed by accused K.V.Juneja as "Mohan". It is alleged that on the Insurance policy also accused K.V.Juneja has signed as "Mohan" as Proprietor of M/s Solar Enterprises. Further the invoice no. 05085 containing details of consignment were also signed by K.V.Juneja.C.C.No: 36 / 2011 Page No.11 of 150
Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
14. It is alleged that all the accused persons in order to achieve the object of conspiracy, had performed their respective roles and the public servant i.e. accused G.C.Gupta criminally misconducted himself, so as to cause pecuniary advantage to accused Arvind Kumar Sharma, K.V.Juneja and Vijay Dayal, as payment of Rs.4,89,788/ was released to accused firm i.e. M/s Solar Enterprises.
15. It is alleged that on conclusion of investigations, the report was submitted to the competent authority for necessary sanction for prosecution against accused G.C.Gupta, the then Assistant Manager, the public servant, which was granted.
16. It is alleged that all the accused persons have committed offenses punishable under Section 120B read with Section 420, 467, 468 & 471 IPC and 13 (2) read with 13 (1) C.C.No: 36 / 2011 Page No.12 of 150 Judgement in the matter of:-
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(d) of Prevention of Corruption Act and also the substantive offences.
17. 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 :
18. 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.
19. In compliance to the Provisions of Section 207 Cr.P.C, the accused persons were supplied with the copies of charge sheet and documents relied upon by the prosecution. C.C.No: 36 / 2011 Page No.13 of 150
Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
C H A R G E :
20. 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.
21. 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 charges for offences under section 420 / 471 IPC read with 467 / 468 IPC against Arvind Kumar Sharma accused no. 2 and substantive charge for offence under section 467 IPC against Vijay Dayal accused no. C.C.No: 36 / 2011 Page No.14 of 150
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3 and K.V.Juneja accused no. 4, on the basis of material on record.
22. 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.
23. Separate charge for substantive offence under section 13(2) read with 13 (1) (d) of PC Act was framed against Girish Chandra Gupta i.e. accused no.1, the public servant.
24. Separate charges for substantive offence under section 420 / 471 read with 467 / 468 IPC was framed against Arvind Kumar Sharma i.e. accused no.2.
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
25. Separate charges for substantive offence under section 467 IPC was framed against Vijay Dayal and K.V.Juneja i.e. accused no.3 & 4.
26. 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 :
27. 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 the given opportunities, CBI had examined 29 witnesses. C.C.No: 36 / 2011 Page No.16 of 150
Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
28. The witnesses so examined by the prosecution to substantiate its case can be broadly categorized in Six Categories:
29. 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 :
(i) PW2 Sh.K.Mahapatra, Chief Vigilance Officer, NIC, the complainant ;
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(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) PW9 Sh.N.K.Dutta, Regional Manager, NIC ;
(ix) PW10 Smt.Gopa Sahu, Assistant Admin. Officer, NIC ;
(x) PW11 Smt.Pooja Soni, Assistant, NIC ;
(xi) PW12 Sh.P.L.Goplani, Motor Accident Claim Department, NIC ;
(xii) PW14 Sh.Virender Singh Negi, Assistant, NIC.
30. The witnesses of the first category have further deposed regarding issuance of cheque to the concerned parties onces the claim is fully approved. The mode and C.C.No: 36 / 2011 Page No.18 of 150 Judgement in the matter of:-
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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.
31. Second Category of witnesses examined by the prosecution are also important ones as they are from the banks where National Insurance Company and accused Arvind Kumar Sharma, Proprietor of M/s Solar Enterprises, were having their accounts. This category comprises of :
(i) PW13 Sh.R.Vaidhyanathan, Chief Manager, Indian Overseas Bank ;
(ii) PW16 Sh.J.S.Mehra, Chief Manager, Oriental Bank of Commerce.
32. 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. C.C.No: 36 / 2011 Page No.19 of 150
Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
33. Third Category of witnesses are the ones who have deposed about the nonexistence of the consignee i.e. M/s Venkateshwara Handloom, Ernakulam and the transporter i.e. M/s Patiala Assam Roadways. This category further includes a witness i.e PW23 T.M.Khan of M/s Tracer & Recovery Consultant, who deposed that he never worked for NIC as tracer nor had submitted any tracing report. This category includes :
(i) PW17 Sh.K.M.Varkey, Additional S.P., CBI, Chennai ;
(ii) PW19 Sh.Akhilesh Aggarwal, Cochin ;
(iii) PW21 Smt.T.K.Savithri, Sorting Postwoman, Ernakulam, Kerla ;
(iv) PW22 Smt.K.Rajeshwari Amma, Sales Tax Officer, Cochin.
(v) PW23 Sh.T.M.Khan, Field Officer, M/s Tracer & Recovery Consultant.
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
34. Fourth Category of witnesses are miscellaneous witnesses of house search and specimen signatures and those who were joined during investigations by the Investigating Officer including the CBI officers who on directions of IO conducted part investigations. This category includes :
(i) PW15 Sh. P.K.Aggarwal, Dy. Manager, NIC ;
(ii) PW20 Sh. B.M.Pandit, Inspector, CBI ;
(iii) PW26 Sh. S.Balakrishna Shetty, Officer, Vijaya Bank ;
(iv)PW27 Sh. R.C.Madan, Officer, Punjab National Bank ;
(v) PW28 Sh. R.K.Saran, Additional S.P., CBI ;
(vi)PW29 Sh. B.S.Kanojia, Clerk, Syndicate Bank ;
35. 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 : C.C.No: 36 / 2011 Page No.21 of 150 Judgement in the matter of:-
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(i) PW1 Sh.Sujit Dass, General Manager, NIC, Calcutta: who had given sanction for prosecution with respect to accused Girish Chandra Gupta ;
36. 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) PW18 Sh. Mohinder Singh, Assistant, GEQD, CFSL.
(ii) PW24 Sh.S.K.Kashyap, Additional S.P., CBI ;
(iii) PW25 Sh.R.P.Kaushal, Additional S.P., CBI.
37. 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 C.C.No: 36 / 2011 Page No.22 of 150 Judgement in the matter of:-
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contentions advanced by Ld.Special PP for CBI, as well as by Ld.Defence Counsels for the accused persons.
38. All the prosecution witnesses were cross examined in detail by Sh.C.L.Gupta and Sh.R.K.Kohli, Advocates, Ld.Defence Counsels for the accused persons. The cross examination of the witnesses is not being mentioned for the sake of brevity, but the same and material portion thereof, more particularly, the one referred to during the course of arguments, shall be adverted to hereinafter, while appreciating the legal and factual issues raised on behalf of the accused, alongside appreciation of evidence in entirety.
S T A T E M E N T O F A C C U S E D :
39. 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.
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40. 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 evidence in his defence.
D E F E N C E E V I D E N C E :
41. 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, Malkhana Incharge, EOWI, appeared in the witness box as DW2.
42. As accused no.2 Arvind Kumar Sharma, accused no.3 Vijay Dayal and accused no.4 K.V.Juneja, despite grant of opportunity, did not wish to examine any witness in their defence. Thus, defence evidence qua them was closed. C.C.No: 36 / 2011 Page No.24 of 150
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43. 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 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. C.C.No: 36 / 2011 Page No.25 of 150 Judgement in the matter of:-
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44. 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 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. C.C.No: 36 / 2011 Page No.26 of 150
Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
45. 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. On behalf of accused no. 2 Arvind Kumar Sharma, accused no. 3 Vijay Dayal & accused no. 4 K.V.Juneja Sh. R.K.Kohli, Advocate had advanced arguments.
A R G U M E N T S O N B E H A L F O F C B I :
46. 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. C.C.No: 36 / 2011 Page No.27 of 150
Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
47. 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 his 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.
48. He contended that the insured had obtained a policy on the basis of a bogus transaction, knowing or having reasons to believe that no such goods which were sought to be insured, were transported. He contended that the consignee as well as transporter were nonexistent. It is submitted by him that the insured as well as other coaccused persons submitted C.C.No: 36 / 2011 Page No.28 of 150 Judgement in the matter of:-
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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 :
49. To defend the accused persons, Sh.Ramesh Gupta, Ld.Senior Advocate along with Sh.C.L.Gupta, and Sh.R.K.Kohli, Advocate, 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 C.C.No: 36 / 2011 Page No.29 of 150 Judgement in the matter of:-
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Dated : 16.10.2014.
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.
50. 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.
51. 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 C.C.No: 36 / 2011 Page No.30 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
aspect were twofold ie. :
(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: 36 / 2011 Page No.31 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
52. It is contended that as the sanction order was bad in law, therefore, the whole proceedings have become non est.
53. Third dimensional attack on the prosecution case raised by Ld.Defence Counsels was on factual aspects, vis avis the necessary ingredients of the offences with which accused persons were charged.
54. 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 they he be acquitted of the charge.C.C.No: 36 / 2011 Page No.32 of 150
Judgement in the matter of:-
CC No.: 36 / 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: 36 / 2011 Page No.33 of 150
Judgement in the matter of:-
CC No.: 36 / 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.
55. Apart from the above contentions which were commonly advanced on behalf of all the accused persons, Sh.R.K.Kohli, Advocate, Ld.Defence Counsel for accused no. 2 Arvind Kr.Sharma, accused no. 3 Vijay Dayal and accused no. 4 K.V.Juneja, supplemented the contentions against the prosecution case. The same are as under:
(i) No pecuniary advantage : It is contended by Sh. C.C.No: 36 / 2011 Page No.34 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
R.K.Kohli, Advocate, Ld. Counsel for the accused private persons that no pecuniary advantage or wrongful gain was caused to them.
(ii) Non examination of material witnesses : It is submitted by Sh. R.K.Kohli, Advocate, that prosecution has claimed that neither consignee 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.
(iii) No Role of accused K.V.Juneja & Vijay Dayal : It is submitted by Sh.R.K.Kohli, Advocate Ld.Defence Counsel that in the entire prosecution evidence, no overt act has been alleged against accused K.V.Juneja & Vijay Dayal. He contended that as per prosecution case K.V.Juneja had merely collected the documents. He submitted that accused Vijay C.C.No: 36 / 2011 Page No.35 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Dayal has not done anything so as to connect him with the co accused persons.
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 :
56. 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.
57. 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 C.C.No: 36 / 2011 Page No.36 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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 ground itself, the case cannot proceed and accused G.C.Gupta, should be acquitted.
58. 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 C.C.No: 36 / 2011 Page No.37 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(iii)while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest ; or
(e) . . .
59. The phrases namely "corrupt , illegal means"
and "by abusing his position as public servants" are different categories of corrupt practices, which are conjuncted by the words "or" and not by the conjunction "and". This in itself indicates that these three different categories are alternate misconduct on the part of public servant and either of these three practices, if done by public servant then the same can constitute an offence under this Section.
60. 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 C.C.No: 36 / 2011 Page No.38 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
his position as "public servant" obtains for himself or for other person, any valuable thing. The word "abuse" used by the Legislature means "misuse", ie. using his position for something which is not intended. That abuse of the position may be by corrupt or illegal means or otherwise than those means". In view thereof, the Legislature never intended that there has to be an express evidence of illegal gratification before invocation of this section. In case, there are instances and allegations that a person has abused his position as a public servant, in order to cause advantage to anyone, that in itself is sufficient for invocation of this Section.
61. 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 C.C.No: 36 / 2011 Page No.39 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
there are allegation of abuse of official position by the public servants in order to cause pecuniary advantage to their co accused, this clause of P.C.Act very much comes into play.
62. In view thereof, the contention advanced by Ld.Defence Counsels that in the present case there are no allegations on record that accused G.C.Gupta, the public servant, had adopted any corrupt or illegal means or have obtained any pecuniary advantage for himself, thus section 13(1) (d) of P.C.Act cannot be invoked, is rejected.
63. However, the prosecution has to establish the necessary ingredients of the offences, with which the accused has been charged, on the basis of the evidence which has come up on record, with which I shall be dealing hereinafter. C.C.No: 36 / 2011 Page No.40 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
64. Having dealt with the contentions urged by Ld.Defence Counsels on behalf of the accused on purely legal grounds, I shall now delve upon to consider the arguments raised involving mixed question of "Law and Facts".
65. Leading a double pronged attack on the prosecution case, Sh.Ramesh Gupta, Ld.Senior Advocate along with Sh.C.L.Gupta Advocate, Ld.Defence Counsels appearing on behalf of public servant ie. Accused G.C.Gupta, 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. C.C.No: 36 / 2011 Page No.41 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
66. 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 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.
67. 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.. C.C.No: 36 / 2011 Page No.42 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
68. 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.
69. 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 C.C.No: 36 / 2011 Page No.43 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
procedures established by law. As whenever a particular procedure is prescribed by law, then all other procedures to do the same are proscribed.
70. Public servants in whatever capacities they are holding their offices, are supposed to give effect to the objects for which their organization is functioning, so that the benefits arising out of their actions, should benefit their country in general and their organization in particular. To achieve the object, for which the policies and plans of the organization are put in place, all the public servants are expected to discharge their functions with utmost propriety and all fairness. Experience however has revealed that many public servants, instead of using their good offices for the public good, misuse the same for their personal benefits by indulging into corrupt and improper practices.
C.C.No: 36 / 2011 Page No.44 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
71. 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.
72. Being aware of the fact that some of the honest public servants may be dragged into vexatious and uncalled for prosecution, the Legislature had in Section19 of Prevention of Corruption Act, incorporated a "saviour clause" so as to protect them and to encourage them to continue with the good work. But for this clause, the government process would become 'static' as public servants would hesitate to take even the most honest, bonafide and genuine decisions fearing harassment from frivolous and uncalled for allegations. C.C.No: 36 / 2011 Page No.45 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
73. To balance these two conflicting interests, one of which is to give effect to the very object for which Prevention of Corruption Act was brought on the Statute Book to deal with the guilty sternly and on the other hand, to give effect to the shield provided by the Legislature to protect honest and diligent public servants from vexatious and uncalled for prosecution, the onerous duty has been placed on the Courts, which are an important cog in the wheels of Administration of Justice. The courts are obligated to strike balance between these two conflicting interests in such a manner, so that majesty of "Rule of Law" is neither undermined nor defeated.
74. Before proceeding to advert upon the submissions advanced, it is pertinent to make mention of Section 19 of Prevention of Corruption Act, which is reproduced as under: C.C.No: 36 / 2011 Page No.46 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
SECTION 19 : PREVIOUS SANCTION NECESSARY FOR PROSECUTION :
(1) No Court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government ;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government ;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under subsection (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.C.C.No: 36 / 2011 Page No.47 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) :
(a) No finding, sentence or order passed by a Special judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under subsection (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby ;
(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in failure of justice;
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under subsection (3) whether the absence thereof, or any error, omission or irregularity in, such sanction has occasioned or resulted in failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.C.C.No: 36 / 2011 Page No.48 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Explanation - For the purposes of this Section,
(a) error includes competency of the authority to grant sanction ;
(b) a sanction required for prosecution includes reference to any requirement that the 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.
75. The object and character of this provision is evidently emanating from the words used in the Section by the Legislature : "No Court shall take cognizance of such offence, except with the previous sanction". Use of words "No" and "shall" makes it abundantly clear that the bar on the exercise of power of the Court to take cognizance of an offence is absolute and complete. As per Black's Law Dictionary, the word "cognizance" means jurisdiction or the exercise of jurisdiction. In common parlance, it means "taking notice of". In view thereof, in absence of the sanction, the court is precluded from even taking notice of the offence or exercising its jurisdiction, in respect of a public servant. C.C.No: 36 / 2011 Page No.49 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
76. 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.
77. 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 C.C.No: 36 / 2011 Page No.50 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
to be construed on the basis of words used therein, without importing the words, which are not there.
78. 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.
79. Firstly, I shall consider the arguments advanced on the aspect of "competence of the sanctioning authority" to pass the sanction orders.
80. Though, Ld.Defence Counsels during the course of arguments had contended that PW1 was not the competent authority to pass sanction orders against G.C.Gupta, who at relevant point of time was posted as Assistant Manager NIC. However, nothing has been brought on C.C.No: 36 / 2011 Page No.51 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
record either during the cross examination of PW1 or during the course of arguments on behalf of accused G.C.Gupta, to challenge the competence of PW1, the then General Manager NIC, with respect to passing of the sanction order Ex.PW.1/A.
81. 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.
82. 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".C.C.No: 36 / 2011 Page No.52 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
83. 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, even to suggest that General Manager was not the competent authority to remove an officer of the rank of Assistant Manager from his office.
84. Thus PW1 being General Manager was the competent authority to remove an officer of the rank of Assistant Manager, and thus had the requisite competence to pass the sanction orders qua accused no.1 , which he did.
85. In view thereof, I do not find any grounds in this contention of Ld.Defence Counsels that PW1 was not C.C.No: 36 / 2011 Page No.53 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
having competence to pass the sanction orders Ex.PW.1/A.
86. This has brought me down to the second limb of the contentions raised by Ld.Defence Counsels stating that sanction order Ex.PW.1/A 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 orders at instance of CBI without taking into consideration that no sanction for prosecution is passed by him against the other officers, who had performed similar roles. It is further contended that sanctioning authority had passed the sanction order without referring the matter to Chief Vigilance Officer and without getting the opinion of CVC on the same.
87. I have considered the submissions advanced and have perused the sanction order Ex.PW.1/A as well as deposition of PW1 Sh.Sujit Kumar Dass.
C.C.No: 36 / 2011 Page No.54 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
88. 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.
89. Hon'ble Apex Court in a recent case titled "State of Maharashtra Vs. Mahesh G.Jain" reported as Criminal Appeal no.2345 of 2009 decided on 28.05.2013 had aptly summed up the principles and guidelines which are required to be followed to decide the question which inundates the Trial Court, challenging the sanction order.
90. Hon'ble Apex Court in this judgement had considered all the previous laws laid down by it, including the C.C.No: 36 / 2011 Page No.55 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
cases referred to and relied upon by Ld.Defence Counsel mentioned hereinabove.
91. Hon'ble Apex Court after appreciating the earlier precedents on the subject, had culled out the guiding principles in Para 13 of its Judgement, which are reproduced as under :
(a) It is incumbent on the prosecution to prove that valid sanction has been granted by Sanctioning Authority after being satisfied that a case for sanction has been made out.
(b) The Sanction Order may expressly show that the sanctioning authority has perused the material placed before him and after consideration of the circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing the evidence that the material was placed before the Sanctioning Authority and his satisfaction was arrived at, upon perusal of the material placed before him.
C.C.No: 36 / 2011 Page No.56 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(d) Grant of Sanction is only an
administrative function and the
sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the Sanctioning Authority cannot be gone into, by the Court, as it does not sit in Appeal over the Sanction order.
(f) If the sanctioning authority has perused all the material placed before him and some of them have not been proved, that would not vitiate the order of sanction.
(g) The order of sanction is a pre requisite, as it is intended to provide a safeguard to the public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity.
..... (emphasis supplied).
C.C.No: 36 / 2011 Page No.57 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
92. 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.
93. 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.
94. The sanctioning authority was under an obligation to see the material placed before it by CBI, collected during the course of investigations and to arrive at a conclusion as to whether the same is sufficient and requires grant of sanction for prosecution of accused persons or not. C.C.No: 36 / 2011 Page No.58 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
95. 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.
96. It is apparent on perusal of cross examination of PW1 conducted on behalf of accused G.C.Gupta that he had perused the report of CBI forwarded by S.P., which contained calendar of events, gist of allegations as well as opinion of CBI, before passing the sanction order. The factum of placing the complete record after conclusion of the investigations before the competent authority, has also been deposed so, by the investigating officer ie. PW25 R.P.Kaushal. No suggestion, whatsoever was given either to PW1 or to PW25 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 C.C.No: 36 / 2011 Page No.59 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
after perusing the material collected by the investigating agency had passed the sanction order.
97. 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 on the basis of its own subjective satisfaction & without any influence from any other authority.
C.C.No: 36 / 2011 Page No.60 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
98. In view thereof, there was no requirement of referring the matter to CVC by the sanctioning authority, for getting its opinion before passing the sanction orders, as has been urged by Ld.Defence Counsels.
99. 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 / purview and jurisdiction of sanctioning authority to pass sanction for prosecution against other officers qua whom neither any investigations were done, nor any evidence was collected nor the sanction was sought.C.C.No: 36 / 2011 Page No.61 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
100. Even otherwise, the Legislature in order to stop unjustified claims raised on behalf of public servants 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.
101. Hon'ble Apex Court in a recent case titled "State of Bihar & Ors. vs. Rajmangal Ram" in Criminal Appeal No.708 of 2014, arising out of SLP (Crl.) No.8013 of 2012, decided on 31.03.2014 ; has held that the Sanction Order cannot be held to be invalid and proceedings cannot be interdicted without giving any finding to the effect that a failure of justice as a result thereof, has occasioned.C.C.No: 36 / 2011 Page No.62 of 150
Judgement in the matter of:-
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Dated : 16.10.2014.
102. 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.
103. In the present case, as we are at the fagend of the trial and accused G.C.Gupta, the public servant, has already undergone the trial, further I have not found any error or omission in the sanction order passed qua accused G.C.Gupta, by the sanctioning authority against him, resulting in any failure of justice.
104. 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 has been passed by the sanctioning authority with due & proper application of mind.C.C.No: 36 / 2011 Page No.63 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
105. Having held that the sanction for prosecution granted against accused G.C.Gupta, 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 accused persons were charged.
106. 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 PW9 N.K.Dutta, PW10 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: C.C.No: 36 / 2011 Page No.64 of 150 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Procedure for processing Marine Claims:
(a)Whenever any commercial transaction takes place between two parties located at different places for purchase of goods, the same are required to be transported by the seller to purchaser.
(b) These goods during the course of transportation, can be insured, for which Marine Open Policy is issued against premium.
(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 C.C.No: 36 / 2011 Page No.65 of 150 Judgement in the matter of:-
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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.
(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.C.C.No: 36 / 2011 Page No.66 of 150
Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
107. In view of abovementioned duties and obligations which accused G.C.Gupta, the 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.
108. 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.C.C.No: 36 / 2011 Page No.67 of 150
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109. It is contended by Ld.Prosecutor that the public servants knowing or having reasons to believe that the documents submitted for issuance of policy as well as those submitted in support of the claim to be forged ones, have facilitated the submission of same by or on behalf of the insured, to them on the basis of which the claim was passed, which led to release of payment by NIC to the private persons and thus they have caused pecuniary advantage to them and corresponding wrongful loss to NIC.
110. 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, C.C.No: 36 / 2011 Page No.68 of 150 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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.
111. I have considered the submissions advanced by Ld.Public Prosecutor. In order to appreciate the same, it is pertinent to make mention of Section 10 of Indian Evidence Act, which reads as under : SECTION 10 THINGS SAID OR DONE BY CONSPIRATOR IN REFERENCE TO COMMON DESIGN - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.C.C.No: 36 / 2011 Page No.69 of 150
Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
112. 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 :
(i) Existence of the conspiracy ; and
(ii) That, they were party to this conspiracy.
113. 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.
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114. 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 coconspirator. One such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it."
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115. 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."
116. 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. C.C.No: 36 / 2011 Page No.72 of 150
Judgement in the matter of:-
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Dated : 16.10.2014.
117. 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.
118. 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.
119. In an attempt to demolish the prosecution case, Sh.Ramesh Gupta, Ld.Senior Advocate along with Sh.C.L.Gupta, and Sh.R.K.Kohli, 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 servant and the other C.C.No: 36 / 2011 Page No.73 of 150 Judgement in the matter of:-
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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.
120. In support of their contentions, Ld.Defence Counsels had relied upon the law laid down in cases titled as under : (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.C.C.No: 36 / 2011 Page No.74 of 150
Judgement in the matter of:-
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Dated : 16.10.2014.
121. 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.
122. 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".
123. In view of this definition, the gist of the offence is "an agreement to break the law". Parties to such an C.C.No: 36 / 2011 Page No.75 of 150 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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.
124. Conspiracy is seldom an open affair. Its existence and objects can only be deduced from circumstances of the case and conduct of the accused, who are party to such conspiracy.
125. 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 C.C.No: 36 / 2011 Page No.76 of 150 Judgement in the matter of:-
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communication, are to be considered.
126. 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.
127. 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.
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128. 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."
129. 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 C.C.No: 36 / 2011 Page No.78 of 150 Judgement in the matter of:-
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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 ."
130. For the purposes of considering the conduct of the accused persons so as to deduce about his complicity with the conspiracy, a "rule of caution" has been laid down by Privy Counsel in case reported as AIR 1954 PC 140 that : "In a joint trial care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against others".
131. In case titled "Alvin Krumlewitch v. United States of America" reported as (93 L.Ed. 790) ; it has been held by Justice Jackson that : C.C.No: 36 / 2011 Page No.79 of 150 Judgement in the matter of:-
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"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."
132. These words of caution were reiterated by Hon'ble Apex Court speaking through Hon'ble Mr.Justice D.P.Wadhwa in case titled "State vs. Nalini" reported as 1999 (5) SCC 253 ; that : "There is a need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that "there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy". C.C.No: 36 / 2011 Page No.80 of 150
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"It has been further held that criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy".
133. 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".
134. 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 C.C.No: 36 / 2011 Page No.81 of 150 Judgement in the matter of:-
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caution laid down by Hon'ble Apex Court in above referred precedents.
135. The marine policy Ex. PW7/DA was issued to cover a consignment purportedly to be sent by M/s Solar Enterprises Delhi, the consignor consisting of Curtain Clothes to M/s Venkateshwara Handloom, the consignee in Ernakulam through M/s Patiala Assam Roadways. The claim was lodged by the insured, processed and passed by the Insurance Company / insurer on alleged loss of consignment by the transporter.
136. In order to ascertain the authenticity and genuineness of the transaction the essential requisites are the existence of alleged consignee, the transporter through whom the consignment was sought to be transported and the loss to the consignment by the transporter.
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137. 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.
138. 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 23 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 PW24 S.K.Kashyap by PW5 V.K.Bajaj vide seizure memo Ex. PW5/A. C.C.No: 36 / 2011 Page No.83 of 150 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
139. 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.
140. This contention of Ld. Public Prosecutor is controverted by Ld. Defence Counsels on the ground that as complete chain of handing over of the file and its preservance in safe custody has not been proved, therefore, nonavailability of the documents in claim file cannot be imputed on the public servants. Ld. Defence Counsels placed reliance on the precedent titled "Anil Maheshwari & Others Versus CBI"
reported as 2013 (136) DRJ 249.C.C.No: 36 / 2011 Page No.84 of 150
Judgement in the matter of:-
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Dated : 16.10.2014.
141. I have considered the rival contentions and have perused the precedent relied upon in the light of evidence on record.
142. 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.
143. During his cross examination, PW24 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 C.C.No: 36 / 2011 Page No.85 of 150 Judgement in the matter of:-
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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.
144. The prosecution evidence which has come up on record reveals that the present claim file Ex. PW3/2 was the record of DOXIII of NIC where accused G.C.Gupta 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 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. C.C.No: 36 / 2011 Page No.86 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
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Dated : 16.10.2014.
145. 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.
146. While holding so, I would hasten to add that a counter contention raised by Ld. Defence Counsels, that for the purposes of adjudication of present case, the claim file Ex. PW3/2 cannot be looked into and is of no relevance, cannot be accepted. As the accused persons themselves are relying on the documents in the claim file and it is not the case of any of the parties that the documents on record in file Ex. PW3/2 were inserted subsequently by Vigilance Department or the Investigating agency. Neither any such suggestion was put on C.C.No: 36 / 2011 Page No.87 of 150 Judgement in the matter of:-
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behalf of accused persons to prosecution witnesses from the Insurance Company nor to the witnesses from the investigating agency.
147. Thus the documents in the claim file are the relevant and important ones to ascertain the charges with which accused persons have been charged.
NON - EXISTENCE of M/s Venkateshwara Handloom, Ernakulam, the consignee :
148. The claim file of the present case Ex. PW3/2 contains photocopy of invoice dated 18.06.1998 at page 6 thereof, as per which the address of consignee is M/s Venkateshwara Handloom, 710/4, Sukhant Vihar, Chittur Road, Ernakulam. As per this invoice and other documents in claim file, a consignment of curtain cloth was allegedly sent by the insured / consignor to M/s Venkateshwara Handloom, the C.C.No: 36 / 2011 Page No.88 of 150 Judgement in the matter of:-
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consignee through M/s Patiala Assam Roadways vide G.R. No. 38015.
149. It is alleged that the consignee was a non existent firm, as no firm was found existing or operating from the given address.
150. Prosecution in order to prove the same, had examined IO PW25 R.P.Kaushal, PW17 Inspector K.M.Varkey, PW21 Smt. T.K.Savithri, PW22 Smt. K.Rajeshwari Amma and PW19 Akhilesh Aggarwal.
151. PW25 R.P.Kaushal, the Investigating Officer deposed that he in order to verify the existence of M/s Venkateshwara Handloom had requested S.P., CBI, Cochin, on which Inspector K.M.Varkey was deputed, who submitted his report coupled with his letter Ex. PW17/A alongwith Ex. PW17/B which inturn were forwarded by S.P.CBI (Cochin) to C.C.No: 36 / 2011 Page No.89 of 150 Judgement in the matter of:-
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S.P. CBI (Delhi), vide his letter Ex. PW17/C. PW25 deposed that as per the report, no firm by the name of M/s Venkateshwara Handloom existed at the given address.
152. Nothing substantial was put to IO during his cross examination except for the suggestion, that he got the report forged in collusion with S.P., CBI, Cochin, which he denied.
153. PW17 Inspector K.M.Varkey deposed that pursuant to a request from S.P., CBI, Delhi, he was deputed by S.P., CBI, Cochin to verify the existence of M/s Venkateshwara Handloom, 710/4, Sukhant Vihar, Chittur Road, Ernakulam. He deposed that he visited the area and found that the property number given for verification was not in existence. He deposed that he, however, located the building called Sukhant Vihar and enquired its owner viz. Akhilesh Aggarwal. He deposed that from owner he came to know that no such firm is C.C.No: 36 / 2011 Page No.90 of 150 Judgement in the matter of:-
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in existence from Sukhant Vihar.
154. PW17 deposed that he then made enquiries from the postman of the area viz. Smt. T.K.Savithri to verify existence of this firm. He deposed that thereafter he made enquiries from Sales Tax Office vide his letter Ex. PW17/A on which he got the reply Ex. PW17/B. He deposed that on the basis of enquiry conducted and personal visit he found no such firm existing from given address and his report was forwarded to S.P., CBI, Delhi vide letter Ex. PW17/C.
155. No doubt this witness was cross examined on behalf of accused, but nothing material came out of it, so as to discredit the version given by him in his examination in chief. He denied the suggestion that he did not physically verified the existence of this firm and had recorded wrong statements of the witnesses on his own.
C.C.No: 36 / 2011 Page No.91 of 150
Judgement in the matter of:-
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Dated : 16.10.2014.
156. The most important witness viz. Akhilesh Aggarwal, the owner of the building 'Sukhant Vihar', Chittur Road, Ernakulam, appeared in the witness box as PW19. He deposed that he alongwith his family, is in occupation of this building Sukhant Vihar since 1985. He deposed that earlier ground floor of this property was given on rent to M/s South Eastern Roadways and the upper floors are in their occupation. He deposed that they never let out this property or any portion thereof to M/s Venkateshwara Handlooms nor any such firm existed from there. He deposed that there is no other building by the name of 'Sukhant Vihar' in that locality and no address 710/4 is in existence, as in Cochin ward number used to be prefixed to the property number.
157. On being cross examined he denied the suggestion that their tenant M/s South Eastern Roadways had sublet the property to M/s Venkateshwara Handloom. C.C.No: 36 / 2011 Page No.92 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
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Dated : 16.10.2014.
158. Besides the owner / occupier of 'Sukhant Vihar', prosecution had examined the post woman of the area viz. Smt. T.K.Savitri, who appeared as PW21. She deposed that she being post woman of the area is aware of the building called Sukhant Vihar at Chittur Road. She deposed that no firm was / is in existence by the name of M/s Venkateshwara Handloom from said building. She deposed that no property bearing no. 710/4 exist in Cochin Municipality. As ward number used to be prefixed to property number. On being cross examined she stated that the officer from CBI had made inquiries from her. She denied the suggestion that this firm is in existence from Sukhant Vihar.
159. PW22 Smt. K.Rajeshwari Amma, Sales Tax Officer, deposed that IO from CBI visited her to enquire about registration with the Sales Tax Office of M/s Venkateshwara Handloom vide his letter Ex. PW17/A. She deposed that after verifying the records of their office she replied vide her letter C.C.No: 36 / 2011 Page No.93 of 150 Judgement in the matter of:-
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Ex. PW17/B. She deposed that as per records of their office, no firm by the name of M/s Venkateshwara Handloom was ever allotted KST No. ERK/1057 dated 14.01.1992.
160. On being cross examined she admitted that on handloom items, sales tax does not apply. She however, stated that any firm dealing with others, across the border of Kerala State requires to have KST number.
161. The contention of Ld. Defence Counsels that PW17 Inspector K.M.Varkey had himself not visited the area and had recorded statements of the witnesses on his own while sitting in his office, is devoid of any merits. As these witnesses themselves appeared in the witness box during trial and deposed that CBI officer did make inquiries from them regarding existence of M/s Venkateshwara Handloom. C.C.No: 36 / 2011 Page No.94 of 150
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162. Further during the course of cross examination of these witnesses, no motive whatsoever was imputed or suggested to them on behalf of accused persons for their deposing so. Considering the fact that PW19, PW21 & PW22 are independent witnesses with no positive or negative connection or link with either of the parties.
163. I have no reason to doubt the authenticity of the version given on record by them that no firm by the name of M/s Venkateshwara Handloom was in existence from Sukhant Vihar, Chittur Road. Further that the address 710/4 is a non existent address.
164. 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.
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165. 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 st that probably n + 1 witness, if examined might have deposed otherwise.
166. To obviate this situation, it is to be seen as to whether prosecution had examined the best witnesses or not.
167. To my mind prosecution has done exactly that, in order to prove existence or nonexistence of any firm or establishment operating from a particular area or building, the best witnesses would have been the occupant of that property, as it would be him who would be in the best position to depose C.C.No: 36 / 2011 Page No.96 of 150 Judgement in the matter of:-
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regarding existence or nonexistence of any firm operating from his building or property.
168. Besides that the postman of the concerned area, who by virtue and nature of his official duties, become conversant with all the establishments operating in the area, where he used to distribute the dak, is the best witness. Apart from the postman and considering that on the available documents, if the sales tax registration number is found, then the best witness is the officer / official from the Sales Tax Department as he would be in the best position to know through the records of his department, as to whether the said sales tax number, is allotted to that firm by their department.
169. Prosecution did exactly that. It had examined PW19 Akhilesh Aggarwal, owner / occupier of the building 'Sukhant Vihar', Chittur Road, besides examining the post woman of the area viz. PW21 Smt. T.K.Savithri to prove that C.C.No: 36 / 2011 Page No.97 of 150 Judgement in the matter of:-
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no such firm by the name of M/s Venkateshwara Handloom is operating from that address.
170. Besides that prosecution through deposition of PW17, PW22 Smt. Rajeshwari Amma coupled with Ex. PW17/A & Ex. PW17/B has been able to establish that the Sales Tax registration number KST No. ERK/1057 dated 14.01.1992 which is mentioned on the invoice, copy of which is at Page No.6 of the Claim File Ex.PW.3/2 was never allotted to M/s Venkateshwara Handloom.
171. Prosecution to my mind had examined best available witnesses. Further the deposition of all these witnesses has not been impeached, as nothing has been brought on record during their cross examination for me to infer any reason to doubt the genuineness of their testimonies given by them during their examination in chief. C.C.No: 36 / 2011 Page No.98 of 150
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172. Thus, from the deposition of these independent witnesses which are corroborated by the version given on record by PW17 Inspector K.M.Varkey, prosecution has been able to establish that the alleged consignee M/s Venkateshwara Handloom to whom the alleged consignment was being purportedly sent by the insured / consignor through M/s Patiala Assam Roadways, is a nonexistent firm.
173. The resultant inference is that no goods were either sold to the alleged consignee vide copy of invoice which is at page no. 6 of claim file Ex. PW3/2, nor the said consignment was sent vide G.R. No. 38015, copy of which is at page no. 5 of the claim file.
174. Thus, there being no consignment, so there is no loss to it and a false claim was lodged by the insured / claimant M/s Solar Enterprises vide their letter Ex. PW10/A and claim form which is at Page no. 11 of the file. The same C.C.No: 36 / 2011 Page No.99 of 150 Judgement in the matter of:-
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was got approved on the basis of false and forged documents.
175. Thus, on the basis of this evidence which has come up on record, the present transaction on the part of insured of getting Marine Insurance Cover for a nonexistent consignment, allegedly sent to a nonexistent consignee was a fraudulent transaction, carried with the intention to cheat NIC by lodging a Marine Claim and getting the same approved on the basis of false and forged documents.
176. 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: 36 / 2011 Page No.100 of 150
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Case qua accused ARVIND KUMAR
SHARMA :
177. It is the case of the prosecution against accused Arvind Kumar Sharma that he as Proprietor of M/s Solar Enterprises had applied with National Insurance Company vide letter dated 18.06.1998 Ex. PW11/A for getting a Insurance Cover, to send a consignment of curtain cloth to Ernakulam, which was accordingly issued. It is further alleged that under the said Insurance Cover a consignment was allegedly sent by consignor M/s Solar Enterprises to M/s Venkateshwara Handloom through M/s Patiala Assam Roadways vide G.R. No. 38015 dated 18.06.1998.
178. It is further the case of the prosecution that insured M/s Solar Enterprises then furnished an intimation of loss to consignment vide letter dated 10.07.1998 Ex. PW10/A which was received by accused G.C.Gupta on which he proposed for appointment of a cargo tracer. It is alleged that on C.C.No: 36 / 2011 Page No.101 of 150 Judgement in the matter of:-
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his recommendation Sh.R.D.Chugh had appointed M/s Tracer & Recovery Consultants for the same.
179. It is further alleged that insured manipulated the survey report, for and on behalf of M/s Tracer & Recovery Consultants as the same was not signed by its owner namely Sh.T.M.Khan. It is further the case of the prosecution that on the basis of this survey report, claim was processed and was recommended by accused G.C.Gupta for approval which was eventually approved by Sh. R.D.Chugh for Rs.4,89,788/. It is alleged that cheque of the claim amount was prepared and was received by accused Arvind Kumar Sharma, who then vide pay in slip Ex. PW16/D deposited the same in his bank account no.
1336 with Oriental Bank of Commerce and the same was duly credited in his account.
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180. Sh. R.K.Kohli, Ld. Defence Counsel for accused Arvind Kumar Sharma had contended that no evidence, whatsoever has been brought on record by the prosecution to prove the present case to be fraudulent transaction. He contended that a genuine claim was lodged by his client Arvind Kumar Sharma which was processed on the basis of the documentary evidence, however, his client has been wrongly and falsely implicated by the prosecution, on the basis of false witnesses.
181. I have considered these submissions advanced by Ld. Defence Counsel and have perused the prosecution evidence that has come up on record. I have also perused statement under section 313 Cr.PC of accused Arvind Kumar Sharma wherein the evidence which has come up on record was put to him.C.C.No: 36 / 2011 Page No.103 of 150
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182. Prosecution through deposition of PW10 Smt. Gopa Sahu and PW11 Pooja Soni has been able to establish that on the basis of a request on behalf of M/s Solar Enterprises Ex. PW11/A, premium was calculated by PW11 Pooja Soni which was deposited and policy Ex. PW7/DA was issued.
183. Further, prosecution on the basis of deposition of PW7 Madan Lal Meena and PW10 Smt. Gopa Sahu has established on record that a loss intimation was received by G.C.Gupta vide letter Ex. PW10/A on which he opined for appointment of Cargo Tracer. It is also established on record that Sh.R.D.Chugh had appointed M/s Tracer and Recovery Consultants.
184. The claim file Ex. PW3/2 which has been proved by PW3 Sh.A.K.Seth, as the same was handed over to the Investigating Officer PW24 S.K.Kashyap by PW5 V.K.Bajaj. The said file contains a report Ex. PW23/A from C.C.No: 36 / 2011 Page No.104 of 150 Judgement in the matter of:-
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pages 7 to 10 of this claim file.
185. PW12 Sh.P.L.Goplani deposed that he on oral instructions of G.C.Gupta had processed the claim note in the present case Ex. PW10/B which was recommended by accused G.C.Gupta and approved by Sh.R.D.Chugh for Rs.4,89,788/.
186. Prosecution through deposition of PW14 Sh.V.S.Negi deposed that cheque of the present case in favour of M/s Solar Enterprises was prepared by Smt. Neelam, whereafter it was signed by the authorized signatory Sh.
C.L.Gupta and Sh. R.D.Chugh. PW13 Sh. R.Vaidyanathan deposed that the cheques issued by NIC were duly debited from the account of NIC bearing account no. 1177 with Indian Overseas Bank, R.K.Puram.
187. Prosecution through deposition of PW16 J.S.Mehra from Oriental Bank of Commerce, the banker of C.C.No: 36 / 2011 Page No.105 of 150 Judgement in the matter of:-
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accused Arvind Kumar Sharma proved that the cheque of Rs.4,89,788/ was deposited in this bank account vide pay in slip Ex. PW16/D and the same was credited in the account of Arvind Kumar Sharma bearing no. 1336 vide credit entry in the statement of account Ex. PW16/E.
188. In view of above, evidence which has come up on record, it is established that an insurance policy was taken for and on behalf of M/s Solar Enterprises. Under said insurance policy claim was lodged, processed and approved, whereafter cheque of the claim proceeds, landed in the account of accused Arvind Kumar Sharma, who thus was beneficiary of the same.
189. It has already been held by me that M/s Venkateshwara Handloom to whom the alleged consignment, on the loss of which the present claim was lodged was a non C.C.No: 36 / 2011 Page No.106 of 150 Judgement in the matter of:-
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existent entity. In view thereof, the present transaction was a false and bogus transaction, as no goods were sold to the consignee against the invoice, copy of which is at page no. 6 of claim file Ex. PW3/2.
190. Although, it is alleged that this consignment was sent through G.R.No. 38015 dated 18.06.1998 of M/s Patiala Assam Roadways. However, prosecution through the deposition of PW3 A.K.Seth coupled with the deposition of Investigating Officer PW25 R.P.Kaushal has proved on record a letter written by Proprietor of M/s Patiala Assam Roadways namely Karamjeet Singh Ex. PW25/DY. It is pertinent to mention that this letter was proved on record during the course of cross examination of Investigating Officer on behalf of accused Arvind Kumar Sharma wherein a suggestion was given on behalf of accused to IO regarding correctness of this letter which was admitted by him. Meaning thereby that so far as letter Ex. PW25/DY is concerned, the same is not disputed on C.C.No: 36 / 2011 Page No.107 of 150 Judgement in the matter of:-
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behalf of accused Arvind Kumar Sharma.
191. No doubt Sh. R.K.Kohli, Ld. Defence Counsel during the course of arguments had contended that this letter should not be relied upon as writer of this document namely Karamjeet Singh did not appear in the witness box.
192. I have considered this submission advanced by Ld. Defence Counsel, but the same is devoid of any merits as bare perusal of list of witnesses submitted alongwith the chargesheet reveals that name of Karamjeet Singh, writer of this document was cited as a prosecution witness. It is also apparent from the record that on the efforts made by prosecution to summon this witness, it was found that this witness has expired.
193. Be that as it may.
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194. On perusal of this letter Ex.PW.25/DY, it is apparent that said Proprietor of M/s Patiala Assam Roadways categorically deposed that G.R. No. 38015 dated 18.06.1998 was never issued by them.
195. Meaning thereby, that no consignment as alleged by the insured in support of his claim was ever sent. Had it been otherwise, the records pertaining to the whole transaction between M/s Solar Enterprises and M/s Venkateshwara Handloom through the transporter M/s Patiala Assam Roadways, should have been in possession and exclusive knowledge of accused Arvind Kumar Sharma being Proprietor of M/s Solar Enterprises.
196. 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, C.C.No: 36 / 2011 Page No.109 of 150 Judgement in the matter of:-
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has incorporated the provisions of Section 106 of Indian Evidence Act.
197. 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 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.C.C.No: 36 / 2011 Page No.110 of 150
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198. Prosecution has established on record that consignee was a nonexistent firm and the alleged G.R. was not of the transporter, then it was for accused Arvind Kumar Sharma to come out with the documents and other evidence pertaining to this transaction being in his exclusive knowledge.
199. Had M/s Venkateshwara Handloom and M/s Patiala Assam Roadways, been in existence and the said consignment was carried by this carrier, as has been contended by the accused, the same must have been in "exclusive and specific knowledge" of accused Arvind Kumar Sharma, being Proprietor of the insured / consignor firm.
200. 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 C.C.No: 36 / 2011 Page No.111 of 150 Judgement in the matter of:-
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by him, as prosecution has discharged the initial onus by virtue of its witnesses.
201. But nothing was brought on record by the accused during the course of his statement under section 313 Cr.PC or during defence evidence for only one reason.
202. That one reason is that no such evidence or record exists, as the transaction was a fake and fraudulent transaction which was done only for the purposes of lodging the claim with NIC against policy Ex. PW7/DA.
203. Further, Prosecution in order to prove the complicity of accused Arvind Kumar Sharma with coaccused persons as well as to prove that he had created forged record in support of his claim had examined PW25 R.P.Kaushal, the Investigating office, who deposed that during the course of investigations, specimen signatures of accused Arvind Kumar C.C.No: 36 / 2011 Page No.112 of 150 Judgement in the matter of:-
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Sharma were taken by him in presence of Sh.N.Dutta, the independent witness which are Ex. PW25/M. He deposed that Inspector B.M.Pandit also had taken specimen signatures of accused Arvind Kumar Sharma Ex. PW15/A. Independent witness Sh.N.Dutta corroborated this fact that specimen signatures and handwriting of accused Arvind Kumar Sharma Ex. PW25/M were taken in his presence by IO R.P.Kaushal.
204. PW20 B.M.Pandit coupled with the deposition of independent witness PW15 P.K.Aggarwal proved on record the specimen signatures and handwriting of accused Arvind Kumar Sharma as Ex. PW15/A. No doubt PW15 was cross examined on behalf of accused Arvind Kumar Sharma but no suggestion whatsoever was given to this witness that signatures of Arvind Kumar Sharma were obtained under any force, threat or duress.
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205. The Investigating Officer has proved on record that the specimen signatures and handwriting of accused Arvind Kumar Sharma alognwith the questioned documents were sent for expert opinion vide letters Ex. PW18/A1 to Ex. PW18/A3. Prosecution through deposition of PW18 Mohinder Singh, the handwriting expert coupled with deposition of Investigating officer PW25 R.P.Kaushal, has been able to establish on record that these questioned signatures and handwriting of accused Arvind Kumar Sharma were examined, using scientific aid and assistance. The reports Ex. PW27/X2 & Ex. PW27/X5 of the handwriting expert, were proved on record.
206. As per the opinion of Handwriting Expert which is supported with detailed reasons, the handwriting on the receipt Ex.PW.23/B of M/s Tracers and Recovery Consultant, who were appointed as "tracers" by Sh.R.D.Chugh, of NIC on Ex.PW.10/A is of accused Arvind Kumar Sharma. C.C.No: 36 / 2011 Page No.114 of 150
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207. Sh.R.K.Kohli, Advocate, during the course of arguments had raised objection that the specimen signatures of the accused could not have been taken as per Law and the prescribed procedure, as no permission from the Court was taken by the IO, therefore, the report received from CFSL should not be relied upon. Ld.Defence Counsel in support of his contention has relied upon the law laid down in case titled "Sapan Haldar & Ors. Vs. State", decided by Hon'ble High Court of Delhi bearing Criminal Appeal no. 804/01 on 25.05.2012.
208. I have considered the arguments advanced on behalf of the accused and have perused the precedent relied upon by Ld.Defence Counsel. In my considered opinion, the same does not apply to the facts of the present case in view of the judgement of Hon'ble Apex Court in case titled "Rabindra C.C.No: 36 / 2011 Page No.115 of 150 Judgement in the matter of:-
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Kumar Pal @ Dara Singh Vs. Republic of India" , reported as 2011 (2) SCC 490.
209. 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. C.C.No: 36 / 2011 Page No.116 of 150
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210. The precedents relied upon by Ld. Defence Counsel in support of his contentions does not come to his rescue in view of the law laid down by Hon'ble Apex Court in Rabindra Kumar Pal @ Dara Singh Vs. Republic of India, reported as 2011 (2) SCC 490. This judgment delivered by Hon'ble Apex Court is the latest judgment on this aspect whereas the precedent relied upon by Ld. Defence Counsel in Sukhbir's Case (Supra) is of the year 1995.
211. 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).
212. In the present case, it is apparent from the C.C.No: 36 / 2011 Page No.117 of 150 Judgement in the matter of:-
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prosecution evidence led on record more particularly in view of the deposition of PW25 R.P.Kaushal, that specimen signatures and handwriting of accused were obtained by the Investigating officer which accused had voluntarily given.
There was no suggestion from the accused to PW25 R.P.Kaushal, that he was forced by him being Investigating Officer to give specimen handwriting and signatures. This leaves me with no ground to doubt that specimen signatures of accused Arvind Kumar Sharma were obtained from him under any pressure, threat or duress.
213. In view thereof, I do not find any merits in this contention of Ld.Defence Counsel that Expert Opinion Ex.PW.27/X2 cannot be relied upon.
214. Prosecution thus has been able to establish on the basis of expert report Ex.PW.27/X2, that the signatures and handwriting on Ex.PW.23/B, the receipt of M/s Tracers and C.C.No: 36 / 2011 Page No.118 of 150 Judgement in the matter of:-
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Recovery Consultants, which is at Page No.13 of the claim file Ex. PW3/2 are of accused Arvind Kumar Sharma.
215. Prosecution in order to prove that M/s Tracer & Recovery Consultant were appointed only on papers and they were never informed about their appointment and the tracing report Ex. PW23/A, the receipt Ex. PW23/B vide which the documents were collected and also the bill of M/s Tracer & Recovery Consultant Ex. PW23/C are false and forged documents, had examined the owner of this firm namely Sh.T.M.Khan. This witness appeared in the witness box as PW23 and deposed that he was never informed about his appointment as tracer in the present case. He deposed that signatures on these documents including the tracing report, the receipt, vide which documents were collected and the tracing bill are not his signatures. He deposed that he never used to submit an undated report with the Insurance Company. C.C.No: 36 / 2011 Page No.119 of 150
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216. Nothing material emanated out of the cross examination of this witness conducted on behalf of accused Arvind Kumar Sharma, so as to doubt his deposition.
217. His deposition received credence on the basis of other prosecution evidence on record. As per deposition of Investigating officer PW25 R.P.Kaushal, he during the course of investigations had also collected specimen handwriting and signatures of T.M.Khan Ex. PW27/N which were referred to the expert examiner for being compared with the questioned signatures and handwriting on the tracing report, tracing bill and the receipt i.e. Ex. PW23/A, Ex. PW23/B & Ex. PW23/C, but no positive opinion was given by the expert attributing signatures on these documents to T.M.Khan.
218. This leads to the only inference that it was accused Arvind Kumar Sharma, who had forged Ex. PW23/B and collected documents from Insurance Company for the C.C.No: 36 / 2011 Page No.120 of 150 Judgement in the matter of:-
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purposes of tracing in the name of M/s Tracer & Recovery Consultant and managed to submit a forged tracing report Ex.
PW23/A and forged tracing bill Ex. PW23/C on record in support of his claim.
219. Prosecution through the deposition of PW16 has already established on record that account no. 1336 with Oriental Bank of Commerce was opened by accused Arvind Kumar Sharma vide account opening form Ex. PW16/B which bears his photograph as well as his voter Identity Card. It has also been established on record that the cheque of the claim amount was deposited in this account vide pay in slip Ex. PW16/D and the proceeds of this cheque were credited vide entry in statement of account Ex. PW16/E.
220. The factum of being proprietor of M/s Solar Enterprises and as such, having an account with Oriental Bank of Commerce, is not disputed by accused Arvind Kumar C.C.No: 36 / 2011 Page No.121 of 150 Judgement in the matter of:-
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Sharma. It was also admitted by the accused that cheque of the claim amount Ex.PW.13/A was deposited in this bank account of his.
221. In view thereof, this contention raised by Ld. Defence Counsel that no pecuniary advantage was caused to his client is turned down.
222. Accused Arvind Kumar Sharma being the "Principal conspirator" was aware of each and every step of conspiracy which he had with coaccused persons with whose aid and assistance he got the policy issued in the name of M/s Solar Enterprises. Further, he had submitted the documents with NIC, knowing or having reasons to believe the same to be forged ones, as genuine. He did so to support his claim which was eventually approved by NIC, thereby causing wrongful loss to it and wrongful gain to accused Arvind Kumar Sharma. C.C.No: 36 / 2011 Page No.122 of 150
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He had performed his assigned role in this larger conspiracy, the object of which was to cheat NIC.
223. His complicity and nexus with coaccused persons, is further evident from perusal of his statement of account Ex. PW16/E which reflects that after getting the claim amount from NIC, he had parted with the share of coaccused K.V.Juneja and Vijay Dayal vide transfer entries dated 09.09.1998 & 09.11.1998 in their favour amounting to Rs. 10,000/ & Rs.75,000/ respectively.
Case qua accused VIJAY DAYAL and
K.V.JUNEJA:
224. It is the case of the prosecution that accused Vijay Dayal and K.V.Juneja being employees of coaccused Arvind Kumar Sharma, were important members of this C.C.No: 36 / 2011 Page No.123 of 150 Judgement in the matter of:-
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Dated : 16.10.2014.
conspiracy. It is the case of the prosecution that accused Vijay Dayal and K.V.Juneja in order to give effect to the object of conspiracy, had forged documents for the purposes of getting the insurance policy issued and thereafter for lodging the claim, under different names.
225. Ld.Public Prosecutor in his quest to connect these two accused persons with the documents in the Claim File Ex.PW.3/2 submitted with Insurance Company, for and on behalf of M/s Solar Enterprises, had contended that accused Vijay Dayal and K.V.Juneja had signed these documents in different names, with the intention to cheat NIC.
226. Prosecution in order to establish its case had examined the Investigating Officer PW25 Sh.R.P.Kaushal, as well as PW29 Sh.B.S.Kanojia, who deposed that in his presence, specimen signatures of these two accused persons were taken by the investigating officer. C.C.No: 36 / 2011 Page No.124 of 150
Judgement in the matter of:-
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Dated : 16.10.2014.
227. No suggestion whatsoever was given on behalf of these two accused persons, either to PW25 or to PW29, to the effect that any pressure was exerted by the Investigating Officer, for the purposes of taking their specimen signatures.
228. Prosecution through deposition of PW25 Sh.R.P.Kaushal, has proved on record that these specimen signatures of the accused persons namely Vijay Dayal and K.V.Juneja, along with the questioned signatures on the documents submitted for and on behalf of M/s Solar Enterprises for the purposes of getting the Insurance Policy issued Ex.PW.11/A, the insurance policy Ex.PW.7/DA, the letter by which loss was intimated to the Insurance Company Ex.PW.10/A, the claim bill which is at Page 20 and claim form which is at Page No.11 of the Claim File Ex.PW.3/2 were sent for examination by handwriting expert, vide their letters Ex.PW.18/A1 and Ex.PW.18/A2.
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Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
229. Prosecution through deposition of PW18 Mohinder Singh, the Handwriting Expert, has proved on record that pursuant to receipt of the requisition vide these letters from CBI, he had examined the questioned documents with the specimen handwriting and signatures with the aid and assistance of scientific instruments. This witness has proved his report as Ex.PW.27/X2 and Ex.PW.27/X5. As has already been held by me while considering the case qua accused Arvind Kumar Sharma, that this report of PW18 is supported with detailed reasons.
230. Further, his testimony has remained unimpeached as nothing material was put to the expert, so as to raise any doubt on the authenticity of the conclusion arrived at, by him.
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Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
231. As per the deposition of PW18 coupled with report Ex.PW.17/X2, the letter Ex.PW.11/A vide which a request for issuance of insurance policy to cover the consignment to be sent to Ernakulum was made on behalf of M/s Solar Enterprises, the same was signed by accused Vijay Dayal for this firm, as Proprietor. It is apparent on perusal of Ex.PW.11/A, that Vijay Dayal had deliberately not signed the same in his own name. That in itself, points towards the dishonest intention, with which accused Vijay Dayal had signed this document.
232. Had his intention been not dishonest, then he could have put his own signatures for and on behalf of M/s Solar Enterprises. But that was not to be.
233. Further, in view of the deposition of Expert Witness PW18, coupled with the report Ex.PW.27/X2, the C.C.No: 36 / 2011 Page No.127 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
letter dated 10.07.1998 Ex.PW.10/A, vide which loss to consignment was reported to NIC, was signed for and on behalf of M/s Solar Enterprises by accused K.V.Juneja who besides signing this document, had also signed for and on behalf of M/s Solar Enterprises at 3 places on the policy Ex.PW.7/DA and also on the claim form, which is at Page No.11 of the Claim File Ex.PW.3/2.
234. It is apparent on perusal of Ex.PW.10/A, that on this document, K.V.Juneja has signed as one "Sunil" whereas, he signed the policy Ex.PW.7/DA and Claim Form as "Mohan", which he deliberately did. That in itself points towards the dishonest intention, with which accused K.V.Juneja had signed these documents.
235. Had his intention been not dishonest, then he could have put his own signatures for and on behalf of M/s C.C.No: 36 / 2011 Page No.128 of 150 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Solar Enterprises. But that was not to be.
236. Even otherwise, on bare perusal of specimen signatures of accused Vijay Dayal and K.V.Juneja and comparing it with the signatures on the documents in the claim file Ex.PW.3/2 ie. Ex.PW.11/A ; Ex.PW.10/A ; Ex.PW.7/DA ; and claim form, the similarities are so apparent, which leads me to the only inference that it was accused Vijay Dayal who signed on Ex.PW.10/A. Further, it was accused K.V.Juneja who signed on Ex.PW.10/A, Ex.PW.7/DA and Claim Form under the guise of different names with intention to cheat NIC and to perform their role, in order to achieve the object of the conspiracy.
237. It has already been held by me hereinabove, that the consignee to whom the alleged consignment was sought to be sent on behalf of the insured M/s Solar Enterprises C.C.No: 36 / 2011 Page No.129 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
is a nonexistent entity. That, in itself shows that these two accused persons owing to their nexus with coaccused Arvind Kumar Sharma, Proprietor of M/s Solar Enterprises, were aware of the fact, that no consignment was being sent.
Despite that, they had furnished these documents with NIC signing the same under different names for and on behalf of M/s Solar Enterprises, for the purposes of taking insurance policy and for the purposes of lodging the claim on the false pretext of "loss to the consignment", which was never sent.
238. These documents were signed by these two accused persons with the knowledge that no such consignment was sent and thus, no loss had taken place to the same, with the sole intention to cheat NIC.
239. The "intention" (a state of mind), of these two accused persons in signing and filing these documents with C.C.No: 36 / 2011 Page No.130 of 150 Judgement in the matter of:-
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NIC is further evident from the fact that they had signed these documents under different names than their own.
240. These acts and actions on the part of accused Vijay Dayal and K.V.Juneja, goes on to establish that they did so being members of the conspiracy and to achieve the object of cheating NIC for and on behalf of M/s Solar Enterprises. Had there been no guilty intention on the part of these two accused persons, then they would have signed these documents in their actual names. But that was not to be.
241. Their complicity with the main conspirator ie. Arvind Kumar Sharma, Proprietor of M/s Solar Enterprises, the insured, is further evident of bare perusal of statement of account of Arvind Kumar Sharma Ex.PW.16/E, which he had with Oriental Bank of Commerce.
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Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
242. It is apparent from the statement of account Ex.PW.16/E coupled with the deposition of PW16 Sh.J.S.Mehra, the officer from the Bank where accused Arvind Kumar Sharma was having his bank account, that the cheque of the claim amount, amounting to Rs.4,89,788/ was credited in this bank account.
243. It is further apparent on perusal of this statement of account that there are entries dated 09.09.1998 and 09.11.1998, in favor of accused K.V.Juneja and Vijay Dayal, for a sum of Rs.10,000 and Rs.75,000/ respectively. The same goes on to establish that out of the fraudulent amount which accused Arvind Kumar Sharma had received in his bank account, he had given the share of these two accused persons, out of it.
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Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
244. This statement of account Ex.PW.16/E of co accused Arvind Kumar Sharma, was put to these two accused persons namely Vijay Dayal and K.V.Juneja during the course of their statement recorded under section 313 Cr.P.C, wherein they had not specifically denied the transfer entries in their respective names.
245. Having regards to these facts and circumstances, prosecution has been able to establish that accused K.V.Juneja and Vijay Dayal being important members of this conspiracy , had performed the roles assigned to them, ie. of forgery and creating false documents, ie. Ex.PW.11/A, Ex.PW.10/A and claim form by signing in the name of someone else, to achieve the object of cheating NIC. Further, as a result thereof, they have also got their share of wrongful pecuniary advantage from the fraudulent amount.
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Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Case qua accused G.C.GUPTA, the public servant :
246. Having dealt with the cases qua the private accused persons, I shall now deal with the alleged acts of omission and commission on the part of the accused public servant, so as to find out as to whether the same establishes any nexus or complicity of his, with the private accused persons.
247. 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 PW12 had contended that appointing a surveyor / tracer after receipt of intimation of loss of C.C.No: 36 / 2011 Page No.134 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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 by his 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. It is further submitted by Ld.Defence Counsel that in the entire claim file Ex.PW.3/2, accused G.C.Gupta had only made endorsement on 2 papers. Firstly, on the receipt of loss intimation Ex.PW.10/A and Secondly, on the Claim Note Ex.PW.10/B, wherein he had recommended what was proposed by his subordinates. He contended that the approving authority was Sh.R.D.Chugh, therefore, G.C.Gupta cannot be fastened with any criminal liability.C.C.No: 36 / 2011 Page No.135 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
248. 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 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.
249. The mode and manner in which the accused public servant had acted, in the present claim case has to be seen from the available documents in the file Ex.PW.3/2.
250. Bare perusal of claim file Ex.PW.3/2 reveals that a proposal for taking Marine Insurance Cover for the alleged consignment was received by NIC from M/s Solar C.C.No: 36 / 2011 Page No.136 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Enterprises vide application Ex.PW.11/A. Neither on this application, nor in the deposition of any of the prosecution witness, it has been alleged that this application was received by accused G.C.Gupta. Rather, from the deposition of PW11 Pooja Soni, it is apparent that it was she, who calculated the premium on the basis of which policy Ex.PW.7/DA was issued under signatures of PW10 Gopa Sahu.
251. No doubt, PW11 deposed that she had calculated the premium on the basis of rates, given to her by her seniors, but she did not specifically depose, that it was accused G.C.Gupta who had given the rates or had asked her to prepare this Insurance Policy.
252. The claim file at its Page No.12 has the Loss Intimation Application Ex.PW.10/A, which was received by accused G.C.Gupta. However, on this application he had merely given an opinion to his senior Sh.R.D.Chugh, that a C.C.No: 36 / 2011 Page No.137 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Cargo Tracer is required to be appointed. On the basis of this recommendation of accused G.C.Gupta, Sh.R.D.Chugh had appointed M/s Tracers and Recovery Consultant.
253. It has already been held by me that accused Arvind Kumar Sharma, being insured himself, had managed to forge a receipt regarding acceptance of documents Ex.PW. 23/B for and on behalf of M/s Tracers and Recovery Consultants and thereafter had managed to place on record, a false tracing report Ex.PW.23/A.
254. This act accused Arvind Kumar Sharma could have managed to achieve only on the basis of his complicity with someone in the Insurance Company. But on this assumption accused G.C.Gupta cannot be roped into the net of the complicity, as it was not accused G.C.Gupta who had specifically recommended the name of M/s Tracers and Recover Consultant to his senior, to be appointed as Tracers. He had C.C.No: 36 / 2011 Page No.138 of 150 Judgement in the matter of:-
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only recommended / opined for appointment of some Cargo Tracer.
255. Apart from above, on the Claim Note Ex.PW. 10/B which was prepared by PW12 Sh.P.L.Gopalani, there is an endorsement of accused G.C.Gupta at point B whereby he had recommended that the claim be approved for Rs.4,89,788/. On this recommendation, the approval was given by Sh.R.D.Chugh.
256. It is contended by Ld.Public Prosecutor that before making recommendation, accused G.C.Gupta should have considered all the relevant documents, which he has deliberately not done, being member of the conspiracy.
257. I do not find any force in this contention of Ld.Public Prosecutor in view of the deposition of prosecution witnesses, which has come up on record. PW12 C.C.No: 36 / 2011 Page No.139 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Sh.P.L.Gopalani, who in this case had processed the Claim Note Ex.PW.10/B during the course of his cross examination had stated that he did not have any reasons to doubt the genuineness of the documents considered by him while processing the claim, which he did as per rules. In view of this deposition of PW12 coupled with the fact that the claim was ultimately approved by Sh.R.D.Chugh, I do not see any malafides on the part of accused G.C.Gupta, in giving directions to PW12 to prepare the Claim Note, as deposed by him, during his examination in chief.258. The Claim File Ex.PW.3/2 at Page No.14
contains a Receipt of M/s Pooja International, the same coupled with deposition of PW10 Gopa Sahoo, reveals that in the present case, M/s Pooja International were appointed as Recovery Agent. It is alleged that M/s Pooja International is owned by accused Arvind Kumar Sharma, who is also the insured in the present case, being Proprietor of M/s Solar C.C.No: 36 / 2011 Page No.140 of 150 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Enterprises.
259. That being the position, M/s Pooja International should not have been deputed as Recovery Agent in the present case.
260. Meaning thereby the appointment of M/s Pooja International, as Recovery Agent in the present case, points an "accusing finger" towards the concerned officer of his complicity with coaccused persons, as this firm was owned by the same person, who is insured himself. However, the claim file Ex.PW.3/2, nowhere reveals as to who has deputed M/s Pooja International as "recovery agents" in this case.
261. In absence of such document or proof, and also in absence of any oral deposition of any of the prosecution witness examined during the course of trial, that it was accused G.C.Gupta who had deputed M/s Pooja International as C.C.No: 36 / 2011 Page No.141 of 150 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Recovery Agent in this case, I am of the considered opinion that prosecution evidence falls short of establishing a link between the accused public servant and the other coaccused persons.
262. Next 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".
263. 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".C.C.No: 36 / 2011 Page No.142 of 150
Judgement in the matter of:-
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Dated : 16.10.2014.
264. The term "misconduct" implies wrong intention and not a mere error of judgement. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or Statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action.
265. 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 C.C.No: 36 / 2011 Page No.143 of 150 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
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.
266. 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.
267. In the present case, I am of the considered opinion that the actions of accused G.C.Gupta, as emanating out of his endorsement on the documents Ex.PW.10/A and Ex.PW.10/B are not such, which can be termed as "criminal misconduct". On the basis of available oral and documentary C.C.No: 36 / 2011 Page No.144 of 150 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
evidence on record, these endorsements on the documents Ex.PW.10/A and Ex.PW.10/B, to my mind, were made by the accused public servant, during the course of his official duties.
268. Prosecution thus has failed to put forth any evidence to connect accused G.C.Gupta, the public servant, with other coaccused persons. Further, prosecution evidence falls short of proving the substantive offence under Prevention of Corruption Act, with which accused G.C.Gupta was charged.
269. 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 Arvind Kumar Sharma, acting inconcert with other accused persons namely Vijay Dayal and K.V.Juneja, had got the documents forged C.C.No: 36 / 2011 Page No.145 of 150 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
and used them as genuine, knowing them to be forged, in order to cheat the Insurance Company, to get wrongful pecuniary advantage by having a claim amounting to Rs.4,89,788/ passed in favor of M/s Solar Enterprises on the basis of false and forged documents, thereby causing wrongful loss to NIC.
270. Consequently, from the material placed and proved on record by the prosecution, it is established that there was prior meeting of minds amongst accused Arvind Kumar Sharma, Vijay Dayal and K.V.Juneja, who acting inconcert had hatched a conspiracy, the object of which was to obtain a Marine Claim in favor of M/s Solar Enterprises, on the basis of false and forged documents.C.C.No: 36 / 2011 Page No.146 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
271. Prosecution has been able to establish on record that these three accused persons viz. accused Arvind Kumar Sharma, Vijay Dayal and K.V.Juneja, had performed their assigned roles of commissions and omissions, in the process of achieving the object of conspiracy.
272. 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.
273. Prosecution however has failed to prove its case against accused G.C.Gupta for which he was charged.C.C.No: 36 / 2011 Page No.147 of 150
Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
274. 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 accused Arvind Kumar Sharma, Vijay Dayal and K.V.Juneja, 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 cheating , forgery and submission of forged documents as genuine.
275. In view thereof , I proceed to dispose off the present case as under: C.C.No: 36 / 2011 Page No.148 of 150 Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
F I N A L V E R D I C T :
276. Having regards to the facts and circumstances and the discussions as delineated hereinabove:
(a) Accused G.C.Gupta is acquitted of all the charges against him.
(b) Accused Arvind Kumar Sharma, Vijay Dayal and K.V.Juneja, stands convicted for offences punishable under section 120B r/w section 420, 468 and 471 I.P.C.
(c) Accused Arvind Kumar Sharma also stands convicted for substantive offence under section 420 and 471 IPC.
(d) Accused Vijay Dayal and K.V.Juneja also stands convicted for substantive offence under section 468 IPC.
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Judgement in the matter of:-
CC No.: 36 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
277. Let 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.
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