Delhi District Court
Central Bureau Of Investigation vs Yash Pal Babbar on 20 December, 2013
IN THE COURT OF SH. RAKESH SYAL, SPECIAL JUDGE, (PC ACT)
& (CBI)-03, SOUTH WEST DISTRICT, DWARKA, NEW DELHI
CBI Case No. 27/12
RC No. 2(E)/2001/EOW-I/DLI
In re:
Central Bureau of Investigation
Vs.
1. Yash Pal Babbar,
S/o Pishori Lal Babbar,
R/o C-113, Sarita Vihar,
New Delhi-76
2. Moti Lal Mathur,
S/o Late Shri B.L. Mathur,
R/o Pocket A-10/74-A
Kalkaji Ext.,
New Delhi-19.
3. Devender Kumar Garg,
S/o Late Shri Chananmal,
R/o 383, Phase-II, Model Town,
Bhatinda, Punjab
Date of Institution of Case : 31-01-2003
Date on which Judgment was reserved : 18-12-2013
Date on which Judgment was delivered : 20-12-2013
JUDGMENT
Facts 1.1 This case was registered on 24-01-2001 on the complaint dt. 29-09-2000 of Shri K. B. Mahapatra, CVO, National Insurance Company Ltd.
CBI Case No. 27/12 1 of 39 (hereinafter referred to as NIC), Calcutta, alleging that during the year 1998-99 accused No. 1, Shri Yash Pal Babbar, the then Asstt. Manager and accused No. 2, Shri Moti Lal Mathur, the then Administrative Officer, of NIC, Divisional Office (hereinafter referred to as DO) - XIII, New Delhi entered into a criminal conspiracy with accused No. 3, Devender Kumar Garg, Prop. M/s Century Traders, B-1, Guru Arjun Dev Bhawan, Ranjeet Nagar Commercial Complex, New Delhi and obtained a marine claim of Rs. 2,85,614/- from NIC, DO-XIII, New Delhi in favour of M/s Century Traders on the basis of forged and bogus documents.
1.2 Investigation was conducted during which, inter-alia, statement of witnesses were recorded, documents were seized and specimen handwriting/signature of suspects and questioned documents were got examined from the CFSL.
1.3.1 Investigation revealed as under:-
1.3.2 Accused No. 3, Devender Kumar Garg took, from DO-XIII, NIC, New Delhi, an open marine policy number 4400370 on 18-11-98 for Rs. 30 lacs for dispatch of edible oil worth Rs. 5,95,000/- from Rajasthan and Punjab to Delhi. In this case, a consignment of cotton seed refined oil was sent by M/s Kay Bee Oils, Jallalabad Road, Muktsar, Punjab to M/s Century Traders, New Delhi vide Goods Receipt (hereinafter referred to as GR) No. 2703 dt.
06-12-98 of M/s The Montgomery Motor Goods Transport Co. (Regd.), A-5344, Kakkar House, Qila Road, Bhatinda.
1.3.3 The insured reported the loss of consignment vide letter dt. 08-12-98 to the Divisional Manager, NIC, DO-XIII, New Delhi which was received by DO-XIII, New Delhi on 11-12-98. A claim form dt. 26-12-98 was submitted by the insured in NIC, DO-XIII, New Delhi. Sr. Divisional Manager, CBI Case No. 27/12 2 of 39 NIC, DO-Bhatinda, sent letter dt. 30-12-98 to NIC, DO-XIII, New Delhi, mentioning that the loss under the above policy was reported to their office and they had deputed Sh Devender Kumar Garg for assessment of loss. Survey report dt. 26-12-98 was also sent with the letter. 1.3.4 A claim file No. 44/98-98/56 was opened in NIC, DO-XIII, Delhi. The claim was processed and recommended by accused No. 2 Moti Lal Mathur, for Rs. 2,85,614/- which was sanctioned by accused No. 1 Yash Pal Babbar. The claim amount of Rs. 2,85,614/- was received by accused No. 3 Devender Kumar Garg vide cheque No. 258470 dt. 11-01-99. The proceeds of the claim cheque were deposited in Current Account No. 1497 of the insured in Punjab & Sind Bank, Ranjeet Nagar, New Delhi. 1.3.5 Neither the consignee, M/s Century Traders nor the consignor, M/s Kay Bee Oils, Jallalabad Road, Muktsar, Punjab were existing at the given address. NIC, DO-Bhatinda also confirmed that neither they have received the claim intimation nor they had appointed Sh Devender Kumar Garg as surveyor and the letter forwarding the survey report was not issued from their office and the same was forged and bogus.
1.3.6 The address of Sh Devender Kumar Garg, as per bank account, is the same as that of Shri Arvind Khanna of M/s Ashoka Trading Syndicate and M/s Om Oil Trading Company The claim was processed on bogus/fake/forged documents which were fabricated by accused No. 3 Devender Kumar Garg of M/s Century Traders in connivance with accused No. 1 Yash Pal Babbar and accused No. 2 Moti Lal Mathur to receive an amount of Rs. 2,85,614/- from NIC, New Delhi thereby causing a loss to the tune of Rs. 2,85,614/- to NIC, New Delhi and wrongful gain to the accused persons.
CBI Case No. 27/12 3 of 39 1.4 On completion of investigation, a charge sheet U/s 120-B r/w
sections 420, 467, 468 and 471 IPC and Sec. 13 (2) r/w section 13 (1) (d) of Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act) and substantive offences thereof was filed against all the accused persons. 1.5 It is may be mentioned that as per the documents/letter heads of the insured/consignee Century Traders as available in the claim file, the name of the said consignee has been mentioned as "Century Traders". Accused No. 3 Devender Kumar Garg is alleged to be the proprietor of the same. However, the parties as well as the witnesses have at many places/times referred to the same as "M/s Century Traders". There is no dispute that any reference to "M/s Century Traders" means "Century Traders." Thus, the consignee is being hereinafter referred to as "Century Traders". The same is the case with respect to "Kay Bee Oils" and " The Montegomery Motor Goods Transport Company (Regd.)", which have been, at many places/times, referred by the parties and the witnesses as "M/s Kay Bee Oils"
and "M/s The Montegomery Motor Goods Transport Company (Regd.)".
2.1 Copies of documents were supplied to the accused persons in terms of Section 207 of the Cr.P.C.
Charges 3.1 Vide order dated 17-02-2004 of my Ld. Predecessor, charges were framed against the accused persons as under :-
a) against all the accused persons, u/s 120-B r/w sections 420/467/468/471 IPC and u/s 13 (2) r/w section 13 (1) (d) of the PC Act,
b) against accused No. 1, Yash Pal Babbar u/s 13 (2) r/w section 13 (1) (d) of the PC Act,
c) against accused No. 2, Moti Lal Mathur u/s 13 (2) r/w section 13 CBI Case No. 27/12 4 of 39 (1) (d) of the PC Act,
d) against accused No. 3, Devinder Kumar Garg u/s 420 IPC and u/s 471 r/w section 467 and 468 IPC.
The accused persons pleaded not guilty to the charges and claimed trial. Prosecution Evidence 4.1 Prosecution has examined 23 witnesses to prove its case. PW-1 Sh. Kruti Bas Mahapatra, Chief Vigilance Officer, NIC on whose instruction investigation was carried out has filed the complaint dated 29-09-2000, Ex. PW1/B with the CBI. PW-2 Sh. A. K. Seth, PW-3 Sh. A.K. Tiwari and PW-12 Sh. A.L. Gambhir, all officers of the Vigilance Department, NIC had conducted the investigation during which they had seized the files, including the claim files, Ex. PW2/A and Ex. PW2/B of Century Traders and given their report, Ex. PW1/A. 4.2 PW-8 Sh. P.K. Aggarwal, Administrative Officer, Vigilance Department NIC has handed over nine marine claim files to the CBI vide seizure memo dated 08-02-2001, Ex. PW8/A. PW-10 Sh. C.D. Ram, Assistant, DO-XIII, NIC has handed over disbursement vouchers to the IO vide seizure memo dt. 11-12-2002, Ex. PW10/A. 4.3 PW-5 Smt. Kiran Gulati, Assistant, DO-XIII, NIC and PW-6 Sh. Vinod Kumar, Senior Assistant DO-XIII, NIC have testified about the claim files, Ex. PW2/A and Ex. PW2/B and identified the signatures/handwritings of accused No. 2 Moti Lal Mathur and accused No. 1 Yash Pal Babbar on various documents in the said files viz. policy, Ex. PW5/A, Cover note, Ex. PW5/B, Claim notes, Ex. PW5/C and PW6/A, disbursement voucher dated 11-01-99, Ex. PW6/C in favour of Century Traders for Rs. 2,85,640/-, letter dated 17-11-98, Ex. PW6/D of Century Traders to DO-XIII, NIC, Appendix XIII, CBI Case No. 27/12 5 of 39 Ex. PW6/E i.e. questionnaire for open policies and claim cheque dated 11-01-99, Ex. PW6/F of NIC issued to Century Traders, for Rs. 2,85,640/. 4.4 PW-7 Ms. Vandana, Divisional Manager, DO-XIII and PW-9 Sh. R.C. Sood, Deputy Manager, Delhi Regional Office-I, NIC, have deposed about the documentation and procedure for settlement of marine claim, and deficiencies in the claim files Ex. PW2/A and Ex. PW2/B. 4.5 PW-11 Sh. R. Vaidyanathan, Chief Manager, Indian Overseas Bank, where NIC was having current accounts no. 1194 and 1197, has deposed about handing over of the cheques vide letter dated 04-05-2002, Ex. PW11/A and statement of account, Ex. PW11/B of current account no. 1194 of NIC. PW-14 Sh. K.S. Sahi, Branch Incharge, Punjab & Sindh Bank, Ranjeet Nagar, has testified about statement of account, Ex. PW14/A in respect of current account no. 1497 of Century Traders for the period 16-01-99 to 10-02-99.
4.6 PW-15 Sh. Kulbhushan and PW-17 Sh. Avinash Dabra have deposed about non existence of Kay Bee Oils, Jalalabad Road, Muktsar. 4.7 PW-24 Sh. Raj Kumar has deposed about non existence of M/s Century Traders.
4.8 PW-4 Sh. Gulshan Rai Kakkar is the owner of The Montegomery Motor Goods Transport Company (Regd.) who has testified about letter dated 22-12-98, Ex. PW4/A of The Montegomery Motor Goods Transport Company (Reg.) written to Century Traders, Shortage Certificate dated 22-12-98, Ex. PW4/B and GR dated 06-12-98, Ex. PW4/C. PW-16 Sh. Swaran Singh and PW-18 Sh. Bhupender Kumar have also deposed about the existence of The Montegomery Motor Goods Transport Company (Regd.).
4.9 PW-13 Sh. Vinod Kumar, Administrative Offiver, Divisional CBI Case No. 27/12 6 of 39
Officer, NIC, Bhatinda has deposed that the letter dated 30-12-98 Ex. PW13/A was not signed by Sh. Shyam Lal Mittal, Senior Divisional Manager, DO, NIC, Bhatinda.
4.10 PW-19 Sh. B.S. Bhist, PW-20 Sh. S.L. Garg and PW-22 Sh. B.N. Pandit are the part IOs. PW-21 Sh. Jyoti Kumar is the initial IO and PW-23 Sh. R.P. Kaushal is the final IO.
Statement of Accused Persons 5.1 Statement of all the accused persons were recorded u/s 313 Cr.P.C. wherein they generally denied the incriminating evidence that has come against them.
5.2 Accused No. 1 Yash Pal Babbar has also stated that he has been falsely implicated in this case due to professional rivalry and jealousy with the Vigilance Department's Officers. They were antagonized with him since he had superseded the Vigilance Department's Officers namely Shri A.L. Gambhir and Shri A.K. Tiwari. Mr. Seth had ill will towards him as he was not made Divisional Manager and he (accused No.1) was posted as Divisional Manager in DO-XIII. When the claim documents were put to him for approval by his subordinates, the surveyor's report and all other documents including the verification report by the empanelled surveyor/investigator were there in the file and there was no question of doubt. He had passed the claim with due care and in utmost good faith. No rules and regulations of the company were violated by him. He had sanctioned the claims, within his financial powers, by following all the rules and regulations of NIC. It was not his duty to physically verify the claim documents or the consignment of goods, transporter, consignor or consignee. He always relied, in utmost good faith, upon the report of the surveyor, recovery agent, tracers, documents submitted CBI Case No. 27/12 7 of 39 by the claimant and the recommendations of his subordinates. He never intended to cause any wrongful gain/loss to anyone.
5.3 Accused No. 2 Moti Lal Mathur has further stated that he had processed and recommended the claim in the present case since he found the claim papers in order and having noticed that cover note and insurance policies were issued, and there was compliance of Section 64 VB, he was duty bound to recommend the claim for payment. He had acted only in accordance with company's rules and as per his conscience. 5.4 Accused No. 3 Devender Kumar Garg has also stated that he is a professional surveyor. In this case he had conducted a survey of the loss on instructions from insurance company. He followed all rules of professional code of conduct and did his job in accordance with visual observations and the documents supplied to him. There is no fraud or conspiracy by him to warrant a criminal charge. The firm Century Traders does not belong to him. He has been wrongly projected as owner of the said firm. The entire set of charges against him are false and fabricated.
Defence Evidence 6.1 Accused No. 1 Yash Pal Babbar and accused no. 2 Moti Lal Mathur have examined two witnesses in their defence i.e. DW 1 and DW 2, besides themselves appearing as witnesses u/s 315 Cr.P.C. r/w Sec. 21 of the PC Act. DW 1 Ms. Yamini Luthra, Administrative Officer, Regional Office, NIC has deposed about destruction of record i.e. audit reports, confidential reports of accused No. 1 Yash Pal Babbar and accused No. 2 Moti Lal Mathur and cheque dishonour register, for the relevant period, in terms of company's circular dt. 23-04-2013, Ex.DW1/B. She has also stated about the applicability of Claims Procedural Manual, Ex.DW1/C before new guidelines were issued CBI Case No. 27/12 8 of 39 vide claims facilitation, Ex.DW1/A in the year 2007.
6.2 DW 2 Sh. Dinesh Gupta, Asstt. Manager, NIC, DO-XIII, has testified, inter-alia, about destruction of record i.e. claim intimation register and the underwriting docket of the policy in terms of company's circular dt. 23-04-2013, Ex.DW1/B. 6.3 DW 3 Yash Pal Babbar has testified that he had sanctioned the claim within his financial power by following all the rules and regulations of NIC. It was not his duty to verify the claim documents or the consignment of goods. He always relied upon the reports of the surveyor/recovery agents/tracer, documents submitted by the claimant, in utmost good faith and the recommendations of his subordinate. He had never over ruled the objections raised by his subordinates and allowed clarifications if there was any objection. In this case he has issued the cover note under exceptional circumstances as there was shortage of staff and the regular assistant in the marine deptt. was on leave. The field verification was not a part of his duty. He had never met accused Devender Kumar Garg or his agent/representative in his office during the processing of the present claim. There was also no requirement that the claimant should meet the Divisional Manager. 6.4 DW 4 Moti Lal Mathur has testified, inter-alia, that as an Administrative Officer he had no role in the appointment of Surveyor or the Verifier, but on the instruction of his Divisional Manager he took action. As an Administrative Officer, he was not required to verify the Surveyor's Report, the Verifier's Report, the existence of Consignor/Consignee, the consignment or the Transporter. As Administrative Officer he is only required to check whether the surveyor's report and verifier's report are in consonance with the insurance particulars, the premium has been collected, the claim is covered CBI Case No. 27/12 9 of 39 within the scope of the Insurance Policy, whether details of packing if any are given in the proposal form and any adverse remark given by the Surveyor or Verifier. If the above is found in order, the claim is recommended to the Divisional Manager. If the goods are insured and claim is filed within the validity of the Insurance policy, then, he cannot reject the claim provided all the documents are in order. No inquiry was made from him at any time by the Officers of NIC with regard to the present case or any other case at any point of time in which he has recommended the claim. In the present case he was fully within his power to process and recommend the claim. Arguments on behalf of CBI 7.1 Sh. Manoj Shukla, Ld. PP has argued that prosecution has been able to prove its case against the accused persons beyond a reasonable doubt. PW-24 Sh. Raj Kumar has proved that Century Traders, the insured/consignee did not exist at its given address. PW-15 Sh. Kulbhushan and PW-17 Sh. Avinash Dabra have proved that Kay Bee Oils did not exist at its given address. PW-13 Sh. Vinod Kumar has proved that no claim intimation was received by DO Bhatinda, no surveyor was appointed by them and no letter dated 30-12-1998 was written by them to DO-XIII, New Delhi. He further contends that PW-11 Sh. R. Vaidyanathan and PW-14 Sh. K.S. Sahi have proved the transfer of claim amount from the account of NIC to the account of Century Traders. PW-23 Sh. R.P. Kaushal has proved the account opening form, Ex. PW21/E (colly.) and specimen signature card, Mark-23/1 in respect of current account no. 1497 of accused no. 3 Devender Kumar Garg in Punjab & Sindh Bank. PW-2 Sh. Akhilesh Kumar Seth, PW-3 Sh. Anil Kumar Tiwari and PW-12 Sh. Amrit Lal Gambhir have proved the vigilance report and PW-1 Sh. Kruti Bas Mahapatra has proved the complaint, Ex. PW1/B made to the CBI Case No. 27/12 10 of 39 CBI. PW-8 Sh. P.K. Aggarwal has proved the handing over of the marine claim files to CBI. PW-5 Ms. Kiran Gulati and PW-6 Sh. Vinod Kumar have proved the handwriting and signatures of accused no. 1 Yash Pal Babbar and accused no. 2 Moti Lal Mathur on the claim files, Ex. PW2/A and Ex. PW2/B. PW-7 Ms. Vandana and PW-9 Sh. R.C. Sood have explained the procedure and the documentation required for settlement of claims. PW-19 Sh. B.S. Bisht, PW-20 Sh. S.L. Garg, PW-22 Sh. B.M. Pandit and PW 23 Sh. R.P. Kaushal have substantiated the investigation carried out in this case. Ld. PP finally submits that besides the direct evidence, there is circumstantial evidence on record to prove that all the accused persons had conspired to cheat NIC.
Arguments on behalf of Accused No. 1, Yash Pal Babbar.
8.1 Sh. Umesh Sinha, counsel for accused no. 1 Yash Pal Babbar has argued that there has been a delay in the registration of FIR, the FIR could not not have been registered without preliminary enquiry and nine charge sheets could not have been filed out of one FIR. He further argues that the testimony of PW-13 Sh. Vinod Kumar cannot be relied upon since Sh. S.L. Mittal, Senior Divisional Manager, author of the letter, Ex. PW13/A has not been examined, documentary evidence i.e. claim intimation register, surveyor's appointment register and dispatch register of NIC, DO Bhatinda have not been produced and specimen signatures of Sh. S.L. Mittal were not got compared with the questioned signatures to prove that he has not written Ex. PW13/A. He further argues that from the testimony of PW-15 Sh. Kulbhushan and PW-17 Sh. Avinash Dabra, no definite inference can be drawn regarding non existence of Kay Bee Oils as they cannot be considered to be having knowledge of all the business establishments at Jalallabad Road, CBI Case No. 27/12 11 of 39 Muktsar. Prosecution has not examined anybody from the traders association, the concerned postman or the concerned registrar to prove that Kay Bee Oil did not exist. He further submits that CST and LST numbers are given on the invoice of Kay Bee Oils but no investigation with regard to the same was done. Similarly, the owner of Graphics Systems Private Ltd. and Sh. Sunil Sudan, owner of M/s Green Line Courier and Computers have not been examined and statement of PW-24 Sh. Raj Kumar alone is not sufficient to disprove the existence of Century Traders. He further argues that accused no. 1 Yash Pal Babbar had sanctioned the claim within his financial powers on the basis of the documents submitted by the claimant, surveyor's report and recommendation of his subordinate accused no. 2 Sh. Moti Lal Mathur, in accordance with prescribed procedure. Therefore, no liability can be fastened upon accused no. 1 Sh. Yash Pal Babbar. He is thus, entitled for acquittal. Ld. counsel has also relied upon Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif, AIR 1968 (SC) 1413, J. Ramulu Vs. State of A.P., AIR 2008 SC 1505, P.K. Narayanan Vs. State of Kerala, 1995 (1) SCC 142, K.R. Purushothaman Vs. State of Kerala, 2005 Cri. L. J. 4648, Rita Handa Vs. CBI, 152 (2008) DLT 428, Anil Kumar Bose Vs. State of Bihar, AIR 1974 SC 1560, State (G.N.C.T) of Delhi Vs. Saqib Rahman @ Mansoori and Ors, 2012 VII AD (Delhi) 12, Ashok Narang Vs. State, 2012 II AD (Delhi) 481, Surendra Singh Vs. State of UP, 2010 Cri. L. J. 2258, Shranappa Mutyappa Halke Vs. State of Maharastra, AIR 1964 SC 1357, Surajit Sarkar Vs. State of West Bengal, AIR 2013 SC 807, C.K. Jaffer Sharief Vs. State (Through CBI), AIR 2013 SC 48, Subramanaian Swamy Vs. A. Raja, AIR 2012 SC 3336, S.V.L. Murthy Vs. State (Rep. By CBI Hyderabad) 2009 Laws (SC) 5-57, Sreedharan A. Vs. Dy. S.P. of Police, 2011 Laws (Ker) CBI Case No. 27/12 12 of 39 4-117, C. Chenga Reddy and others Vs. State of Andhra Pradesh, AIR 1996 SC 3390, Sayeed MRO office Leeza Mandal Mahaboob Nagar Vs. State of A.P. through ACB, 2012 (2) ALD (Cri) 469 and V. Dilip Kumar Vs. State rep. by Dy. S.P. ACB/CBI Chennai, MANU/TN/0503/2012. Arguments on behalf of Accused No. 2, Moti Lal Mathur.
8.2 Sh. Shaju Francis, counsel for accused No. 2 Moti Lal Mathur has argued that the said accused has recommended the claim during the subsistence of the policy, within his financial powers, in accordance with the Claims Procedural Manual, on the basis of documents submitted by the claimant. Field verification was not a part of his duty and he was not required to verify as to who was the owner of the insured firm. He further contends that oral testimony of PW 15 Sh Kulbhushan and PW 17 Sh Avinash Dabra with regard to non-existence of Kay Bee Oil and of PW 24 Sh Raj Kumar with regard to non existence of Century Traders is not sufficient to prove their non existence as no documentary record from the municipal authority, telephone department or sales tax department has been produced. The prosecution case is also negated by the evidence of PW 4 Sh Gulshan Rai Kakkar, PW 16 Sh Swaran Singh and PW 18 Sh Bhupender Kumar who have proved the existence of The Montegomery Motor Goods Transport Company (Regd.) and the GR in question. No investigation has been conducted regarding the overturned truck, photographs of which have been filed by the surveyor. It is further argued that various IOs in this case, during their cross examination have given evasive replies and thus their testimonies cannot be relied upon. He has also argued that prosecution has withheld certain material documents and thus an adverse inference may be drawn against the prosecution.
CBI Case No. 27/12 13 of 39 Arguments on behalf of Accused No. 3, Devender Kumar Garg 8.3 Sh. R.K. Kohli, counsel for accused no. 3 Devender Kumar Garg has argued that the said accused has no connection with Century Traders but the survey report filed by him in this case is genuine. He argues that the survey report placed at Page no. 34 of the claim file, Ex. PW2/D is on the prescribed format wherein details of the tanker, GR, transporter, owner/driver of the tanker and weighment slips are given, and photographs of the accident were also enclosed. However, no investigation was carried out with regard to the above details or the accident and therefore, material evidence has not been brought on record. It is further argued that the GR has been proved by prosecution witness himself i.e. PW-4 Sh. Gulshan Rai Kakkar and thus the transportation of the consignment cannot be disputed. It is also argued that PW-13 Sh. Vinod Kumar was not competent to say that letter dated 30-12-98, Ex. PW13/A was not signed by Sh. S.L. Mittal since Sh. S.L. Mittal, stated to be residing at Kot Kapura, Punjab has not been examined. PW-13 Sh. Vinod Kumar also could not confirm if Ex. PW13/A originated from their office at Bhatinda or not. The intimation of claim and appointment of surveyor are recorded in the registers and therefore, the claim intimation register, the surveyor appointment register and the dispatch register of DO Bhatinda should have been produced by the prosecution but the same has not been done. It is also argued that testimony of PW-15 Sh. Kulbhushan and PW-17 Sh Avinash Dabra is not sufficient to infer that Kay Bee Oils did not exist since if a person is not aware of any business establishment, it does not mean that the same does not exist. Similarly, the testimony of PW-24 Raj Kumar is not sufficient to conclude that Century Traders did not exist, especially in view CBI Case No. 27/12 14 of 39 of the fact that Sh. Sunil Sudan, owner of M/s Green Line Courier and Computers was not examined. He further argues that statement of account, Ex. PW14/A could not be proved by PW-14 Kulbir Singh in view of non compliance of Section 65 B of Indian Evidence Act. It is also contended that the account opening form, Ex. PW21/E (colly.) and specimen signature card, Mark-23/1 in respect of current account no. 1497 in Punjab & Sind Bank have not been proved as the person handing over or receiving the said document has not been examined. Finally, he argues that there is no direct or circumstantial evidence with regard to accused no. 3 Devender Kumar Garg entering into any conspiracy to cheat NIC. Ld counsel has further argued that in offences of conspiracy, though direct evidence may not be available, prosecution is still required to prove its case through circumstantial evidence. Conspiracy cannot be assumed and it cannot be based on conjectures. He argues that in the present case, there is no evidence regarding the presence of accused persons together or any communication between them to show that they had a meeting of mind or that they agreed to commit any illegal act. The prosecution has also not been able to lead any evidence regarding trail of money after it was credited in the account of insured. Prosecution has also not been able to show as to who was the Chief propounder of the conspiracy. Ld. Counsel also relied upon Subramanian Swamy Vs. A. Raja, (supra), Inspector of Police , Tamil Nadu Vs. John David, 2011 Cri LJ 3366, Hanuman Govind Nargundkar and Another Vs. State of M.P., 1953 Cri LJ 129 SC, Sharad Biridhichand Sarda Vs. State of Maharashtra, 1984 Cri LJ 1738, K.R. Purushothaman Vs. State of Kerala, (supra), Rabindra Kumar Dey Vs. State of Orissa, 1977 AIR 170, S.L. Goswami Vs. State of Madhya Pradesh, 1972 AIR 716, R. Venkatakrishnan Vs. Central Bureau of CBI Case No. 27/12 15 of 39 Investigation, Criminal Appeal No. 76 of 2004 and State of Tamil Nadu through Superintendent of Police, CBI/SIT Vs. Nalini and 25 others, decided on 11-05-1999, in this regard. He finally submits that prosecution has failed to prove its case against the said accused.
8.4 It may be mentioned that the legal principles enunciated in the judgments cited above have not been disputed.
8.5 The general propositions of law laid down in the judgments cited by the parties have not been disputed.
Points for Determination.
9.1 I have heard all the parties and have also perused the record. In the instant case, as per the charges framed, the following points are required to be determined:-
A. Charge u/s 120-B r/w Section 420, 467, 468, 471 IPC and Section 13 (2) r/w Section 13 (1) (d) of the PC Act, against all the accused persons namely accused No. 1, Yash Pal Babbar, accused No. 2, Moti Lal Mathur and accused No. 3, Devender Kumar Garg.
i. Whether during the year 1998-99, at New Delhi and other places, all the accused persons namely accused No. 1, Yash Pal Babbar, accused No. 2, Moti Lal Mathur and accused No. 3, Devender Kumar Garg entered into an agreement?
ii. If so, whether they had agreed to cheat NIC, DO-XIII, New Delhi by fraudulently inducing it to sanction insurance claim in the name of Century Traders under the Proprietorship of accused No. 3, Devender Kumar Garg to the extent of Rs.2,85,614/- on the basis of forged/bogus/false documents i.e. invoice, G R, survey report etc. and by using as genuine such documents and CBI Case No. 27/12 16 of 39 by commission of criminal misconduct by public servants i.e. accused No. 1, Yash Pal Babbar and accused No. 2, Moti Lal Mathur?
iii. If so, whether in pursuance of the said agreement, accused No. 3, Devender Kumar Garg obtained marine policy No. 4400370 for Rs.30,00,000/- for dispatch of edible oil from Kay Bee Oil, Jalallabad Road, Muktsar, Punjab to M/s Century Traders, Delhi and falsely reported to the Divisional Manager, R.K. Puram, New Delhi that Tanker No. NH 04P-5153 had met with an accident and submitted claim form dated 26-12-1998 for obtaining insured amount and accused No. 2, Moti Lal Mathur, Administrative Officer processed and recommended the claim and accused No. 1, Yash Pal Babbar, Assistant Manager, approved the claim amount of Rs.2,85,614/- in favour of Century Traders on the basis of above mentioned false/bogus/forged documents and accused No. 3, Devender Kumar Garg of Century Traders received cheque of claim amount from NIC, New Delhi and deposited the same in current Account No. 1497?
B. Charge u/s 13 (2) r/w section 13 (1) (d) of the PC Act against accused No. 1, Yash Pal Babbar.
(i) Whether during the period 1998-99, accused No. 1, Yash Pal Babbar was a public servant i.e. Assistant Manager, NIC, DO-XIII, New Delhi?
(ii) If so, whether during the above period at Delhi and other places, accused No. 1, Yash Pal Babbar obtained pecuniary advantage to the tune of Rs.2,85,614/- for accused No. 3, Devender Kumar Garg of Century Traders and caused corresponding loss to the NIC by sanctioning the above claim amount on the basis of false/forged/bogus documents?
(iii) If so, whether accused No. 1, Yash Pal Babbar did as above by use of illegal means and abuse of his official position?
CBI Case No. 27/12 17 of 39 C. Charge u/s 13 (2) r/w section 13 (1) (d) of the PC Act against accused No. 2, Moti Lal Mathur.
(i) Whether during the period 1998-99, accused No. 2, Moti Lal Mathur was a public servant i.e. Administrative Officer, NIC, DO-XIII, New Delhi?
(ii) If so, whether during the above period at Delhi and other places, accused No. 2, Moti Lal Mathur obtained pecuniary advantage to the tune of Rs.2,85,614/- for accused No. 3, Devender Kumar Garg of Century Traders and caused corresponding loss to the NIC by inducing and persuading to forward and recommend the claim proposal on the basis of false/forged/bogus documents for grant of above claim which was sanctioned on his recommendation?
(iii) If so, whether accused No. 2, Moti Lal Mathur did as above by use of illegal means and abuse of his official position?
D. Charge u/s 420 IPC against accused No. 3, Devender Kumar Garg.
(i) Whether during the period 1998-99 at Delhi and other places, accused No. 3, Devender Kumar Garg deceived NIC, DO-XIII, New Delhi?
(ii) If so, whether accused No. 3, Devender Kumar Garg induced NIC, DO-
XIII, New Delhi to sanction insurance claim of Rs.2,85,614/- in favour of Century Traders on the basis of false/bogus/forged documents i.e. invoice, survey report, G R etc. ?
(iii) If so, whether accused No.3, Devender Kumar Garg had induced NIC, DO-XIII, New Delhi as above dishonestly?
(iv) If so, whether accused No. 3, Devender Kumar Garg received the cheque of claimed amount which was credited in account No. 1497 of Century Traders of which, he was the Proprietor?
E. Charge u/s 471 r/w section 467 and 468 IPC against accused No. 3, CBI Case No. 27/12 18 of 39 Devender Kumar Garg.
(i) Whether during the period 1998-99 at Delhi and other places, accused No. 3, Devender Kumar Garg used false/forged/bogus documents i.e. invoice, GR, Survey Report etc., as genuine for inducing NIC, DO-XIII, New Delhi to sanction insurance claim of Rs.2,85,614/- in favour of Century Traders, of which he was the Proprietor?
(ii) If so, whether he had used the aforesaid documents as genuine knowing or having reason to believe the same to be forged?
(iii) If so, whether he did so fraudulently or dishonestly?
10.1 It is pertinent to refer to Sec. 3 of the Indian Evidence Act, 1872 (hereinafter called as 'IEA') which defines the term 'proved' and d' isproved' as under :-
" ' Proved'- A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists"
" ' Disproved'- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist."
10.2 It is well settled that the word 'proof' means anything which serves, either immediately or mediately to convince the mind of the truth or falsehood of a fact or proposition; and the proofs of matters of fact in general are our senses, the testimony of witnesses, documents and the like. " Proof"
does not mean proof to rigid mathematical demonstration, because that is impossible; it means such evidence as would induce a reasonable man to CBI Case No. 27/12 19 of 39 come to the conclusion (vide Emperor v/s Shafi Ahmed, (1925) 31 Bom. LR 515]. Further, Sec. 134 of IEA stipulates that no particular number of witnesses shall in any case be required for the proof of any fact.
10.3 In human affairs, everything cannot be proved with mathematical certainty and the law does not require it. Legal proof is something different from moral certainty about the guilt of an accused person. Suspicion, however, great, cannot take the place of legal proof. A moral conviction, however strong or genuine, cannot amount to a legal conviction supportable in law. The well known rule of criminal justice is that " fouler the crim e, higher the proof." [vide Sharad Birdhichand v. State of Maharashtra, (surpa)].
10.4 In criminal matters, the prosecution is required to prove its case beyond a reasonable doubt. A benefit of doubt is the condition of the mind which exists where the judges cannot say that they feel an abiding condition, a moral certainty of the truth of the charge. It must not be a mere doubt of a vacillating mind that has not the moral courage to decide upon a difficult and complicated question and therefore, takes shelter in an idle scepticism (vide 1977 CrLJ 59).
10.5 It is well settled that the burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.
10.6 However, the rule in section 106 of the Act would apply when the facts are 'especially within the knowledge of the accused' and it would be impossible or at any rate disproportionately difficult for the prosecution to establish such facts which are 'especially within the knowledge of the accused'. The prosecution is not required to eliminate all possible defences or CBI Case No. 27/12 20 of 39 circumstances which may exonerate him. If certain facts are in the knowledge of the accused then he has to prove them. Of course the prosecution has to prove prima facie case in the first instance. In this regard reference can be made to Murlidhar v. State of Rajasthan, AIR 2005 SC 2345, State of Punjab v. Karnail Singh, (2003) 11 SCC 271, Trimukh Maroti Kirkan v. State of Maharashtra, 2007 Cr LJ 20 (SC), Santosh Kumar Singh v. State, (2010) 9 SCC 747 and Ram Singh v. State, 2011 Cr LJ 618 (Raj.), AIR 1959 SC 1390, AIR 1937 Rang 83, 1968 Cri LJ 848, AIR 1967 Mys 79 and 1964 (1) Cri LJ 688.
10.7 Criminal conspiracy is often hatched in secrecy and for proving the offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence. However, it cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence. Where the prosecution case rests merely on circumstantial evidence, the facts established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. However, on the basis of evidence led by prosecution, if two views are possible, one pointing to the guilt of the accused and other to his innocence, the one in favour of the accused must be accepted. In this regard, reference can be made to Saju Vs. State of Kerala, (2001) 1 SCC 378, Sherimon Vs. State of Kerala, (2011) 10 SCC 768, P.K. Narayanan Vs. State of Kerala, (1995) 1 SCC 142, State of M.P. V Sheetla Sahai, 2009, Cr. LJ 4436, Shivaji Saheb Rao Bobde v. State of Maharashtra, AIR 1973 SC 2622, Harendra Narain Singh v. State of Bihar, CBI Case No. 27/12 21 of 39 AIR 1991 SC 1842 and Baboo Ram, v. State, 1996 Cri LJ 483.
10.8 The essence of conspiracy is unlawful combination and the complicity of the accused has to be decided after considering all the circumstances proved, before, during and after occurrence. Agreement between the conspirators may also be proved by necessary implication. It is not necessary that each member of a conspiracy must know all the details of the conspiracy. Facts established should be consistent only with the hypothesis of guilt of the accused. It does not mean that each and every hypothesis suggested by accused must be excluded by proved facts. In this regard reference can be made to Chaman Lal Vs. State of Punjab, AIR 2009 SC 2972, R.K. Dalmia V The Delhi Administration, AIR 1962 SC 1821, Muriappan Vs. State of Tamil Nadu, AIR 2010 SC 3718 and Firozuddin Basheeruddin vs State of Kerala, (2001) 7 SCC 596.
10.9 It is also pertinent to refer to Sec 313 (4) of the Cr.P.C. which stipulates that the answers given by the accused, in his statement under this section, may be taken into consideration in such enquiry or trial, and put in evidence for or against him in any other enquiry into, or trial for, any other offence which such answers may tend to show he has committed. It is well settled that admission or confession of the accused in the statement under section 313, Cr PC in the course of trial can be acted upon and the court can rely on these confessions to proceed to convict him. In this regard reference can be made to Dharnidhar v. State of Uttar Pradesh, (2010) 7 SCC 759 and State of Maharashtra v. Sukhdev Singh, AIR 1992 SC 2100.
10.10 It is also well settled that evidence of one accused or admission or action or statement made by one of the accused can be used as evidence CBI Case No. 27/12 22 of 39 against the other by virtue of Section 10 of the Indian Evidence Act. In this regard reference can be made to Tribhuvan Nath Vs. State of Maharashtra, AIR 1973 SC 450 and Kehar Singh v State, AIR 1988 SC 1883. 10.11 Both the parties have relied upon Claims Procedural Manual, which was admittedly applicable at the relevant time. The said manual, while laying down the procedure for processing and settlement of marine claims provides that the procedures laid down in the Manual are not exhaustive and are of general nature. It further provides that in some cases, the requirements laid down in the Manual could not be in practice complied with due to particular circumstances applicable to the individual case and such non compliance should not therefore, make the claim as not payable and the claim settling authority is to use his discretion by recording his reasons in detail. 10.12 It is in the light of the above position of law that evidence is to be appreciated.
Facts Not in Dispute 11.1 From the evidence and other material on record and arguments advanced by the parties, there appears to be no dispute about the following facts :-
(a) Accused No.1 Yash Pal Babbar was a public servant i.e Assistant Manager, NIC, DO-XIII, New Delhi,
(b) Accused No. 2 Moti Lal Mathur was a public servant i.e. Administrative Officer, NIC. DO-XIII, New Delhi, (c ) M/s Century Traders had taken marine policy No. 4400370 on 18-11-98 for Rs.30 lacs for dispatch of edible oil worth Rs.5,95,000/- from Rajasthan and Punjab to Delhi,
(d) Claim intimation was given by Century Traders vide letter dt. 08-12-98 CBI Case No. 27/12 23 of 39 to DO-XIII, NIC,
(e) Claim form dt. 26-12-98 was submitted by Century Traders to DO -XIII, NIC,
(f) The claim was processed by accused No. 2 Moti Lal Mathur, inter-alia, on the basis of the purported documents viz; letter, dt. 30-12-98 of Sr. Divisional Manager, NOC, DO, Bhatinda and the survey report dt. 26-12-98 of accused No. 3 Devender Kumar Garg and it was sanctioned by accused No. 1 Yash Pal Babbar for a sum of Rs.2,85,614/-, and
(g) The payment of claim amount was made vide cheque No. 258470, dt.
11-01-99 and proceeds thereof were credited in current account no. 1497 of Century Traders in Punjab & Sind Bank, Ranjeet Nagar, New Delhi. Facts in Dispute 12.1 However, the following facts are in dispute :-
(a) Accused No. 3 Devender Kumar Garg is the owner/proprietor of Century Traders and has obtained the above policy,
(b) Century Traders did not exist at its given address,
(c) Kay Bee Oils did not exist at its given address,
(d) No consignment, as covered by the policy, was sent by Kay Bee Oils, Muktsar to Century Traders, Delhi and consequently there was no loss of consignment, and thus invoice No. 2228 dt 06-12-98 is forged.
(e) No claim intimation was received by DO, Bhatinda, NIC, and thus the letter dt. 08-12-1998 is forged,
(f) Accused No. 3, Devender Kumar Garg was not appointed as Surveyor by DO, Bhatinda, NIC and thus the survey report dt. 26-12-98 is forged, and
(g) No letter, dt. 30-12-98, Ex.PW13/A was written by DO, Bhatinda, NIC to DO-XIII, NIC, New Delhi and thus, the said letter is forged.
CBI Case No. 27/12 24 of 39
Appreciation of Evidence
13.1 The main fact in issue in this case is whether there was any loss
of consignment of cotton seeds refined oil purportedly sent by Kay Bee Oil, Jallalabad Road, Muktsar, Punjab to Century Traders, New Delhi through The Montogomery Motors Goods Transport Company, Bhatinda as covered by the insurance policy. The essential parts/components of the purported loss of consignment are existence of Kay Bee Oil, Jallalabad Road, Muktsar, Punjab, existence of Century Traders, New Delhi, existence of The Montogomery Motors Goods Transport Company, Bhatinda, sending of the consignment of cotton seeds refined oil and loss/damage to the said consignment. If any of the above part/component of the transaction in question is disproved, it would, by necessary implication, follow that there was no loss of consignment and that the claim amount has been fraudulently obtained.
13.2 Prosecution has led evidence and Ld. PP has advanced argument to the effect that complete documents required for processing and settlement of claim are not available in the claim file which shows that the claim has been fraudulently obtained. Ld. Defence counsels contend that the complete chain of handing over of record has not been proved and thus absence of any document in the claim file is of no relevenace. It is pertinent to note that the claim files were the record of DO-XIII, NIC. The officer/official of DO-XIII from whose custody, the said files/record were seized for the first time has neither been specified nor examined by the prosecution to prove that complete record with respect to the claim in question was seized, or that the record produced in the court was the complete record, as available in DO-XIII at the time of sanction of the claim. Further, no inventory of the documents available in the claim files was prepared, and the record seized was also not CBI Case No. 27/12 25 of 39 sealed either at the time of their seizure by the officers of Regional Office of NIC or by the IO. Thus, no sanctity of preservation of documents seized was maintained. Therefore, the above contention of Ld. PP is not tenable. In this regard, a reference can also be made to the judgment dated 28-05-2013 of the Hon'ble High Court of Delhi in Crl. Appeal No.1455/2012, Anil Maheshwari v/s CBI.
Accused No. 3 Devender Kumar Garg is the Owner/Proprietor of Century Traders and has obtained the above Policy.
13.3 PW11 Sh R. Vaidyanathan has proved statement of account, Ex. PW11/B of current account No. 1194 of NIC which shows a debit of Rs 2,85,614/- which is the claim amount in the present case on 16-1-1999. PW 14 Sh. K.S. Sahi, Branch Incharge at Punjab & Sind Bank, Ranjeet Nagar Branch during the year 2002, has deposed about the certified copy of statement of account, Ex.PW14/A of current account No. 1497 of Century Traders, dt. 29-04-99 for the period 16-01-99 to 10-02-99, bearing his signature at point A. The said statement of account, Ex. PW14/A shows a credit of Rs 2,85,614/-, which is the claim amount, on 16-1-1999. It is, therefore, clear that the account holder of the aforesaid current account No. 1497 of Century Traders, is the insured, claimant and receipient of the claim amount. 13.4 PW 23 Sh. R.P. Kaushal has testified about letter dt. 18-12-2002, Ex.PW23/G of Sr. Manager, Punjab and Sind Bank, addressed to him vide which 3 documents pertaining to current account No. 1497 of accused No. 3, Devender Kumar Garg, i.e. copy of account opening form and statement of account, Ex.PW21/E (Colly) and attested photocopy of the specimen signature card, Mark PW 23/1 were handed over to him. Both the photocopy of account opening form, Ex.PW23/E (colly) and photocopy of specimen CBI Case No. 27/12 26 of 39 signature card Mark PW 23/1, in respect of account No. 1497 of Century Traders, have been attested to be true copy by the Sr. Manager. As per the said documents, Sh. Devender Kumar is Proprietor of Century Traders and these also bear photographs of accused No. 3 Devender Kumar Garg. In these documents the address of Century Traders is given as " B-1 Guru Arjun Dev Bhawan, Ranjeet Nagar, Commercial Complex, New Delhi" . When the above evidence was put to the said accused during his statement under section 313 Cr. P.C, he stated that current account No. 1497 does not belong to him and that signatures on the enclosures to Ex.PW23/G were not his signature. However, he has not denied his photographs on the account opening form and specimen signature card. According to Ld. Counsel for accused No. 3, Devender Kumar Garg, the said documents being photocopies cannot be read in evidence whereas, according to the Ld. P.P., the same being record of nationalized bank are public documents and certified copies thereof are per-se admissible.
13.5 As per section 74 of IEA, documents forming the acts or records of the acts of official bodies and tribunals are public documents. Section 76 of IEA provides for supply of a certified copy of public document by a public officer having custody of the same. Further as per Section 65 of IEA secondary evidence, by way of a certified copy, may be given of the existence, condition or contents of a document when the original is a public document within the meaning of Section 74 IEA.
13.6 In Gorantla Venkateshwarlu v. B Demudu, AIR 2003 Andhra Pradesh 251, it was held, " Since Central Bank of India is one of the Nationalised Banks, in my considered opinion, it is an 'official body' within the meaning of Section 74 CBI Case No. 27/12 27 of 39 of Evidence Act and so records of its acts would be 'public documents' within the meaning of Section 74 of Evidence Act."
13.7 In view of the above, the aforesaid account opening form and specimen signature card, being public documents in terms of Section 74 of the Indian Evidence Act, their certified copies are admissible as secondary evidence in terms of Section 65 of the IEA. The above documents make it clear that it was accused No. 3 Devender Kumar Garg, who was the account holder of current account No. 1497 of Century Traders in Punjab & Sind Bank, and he has taken insurance policy in the name of Century Traders from DO-XIII, NIC and he was the receipient of the claim amount. Non - Existence of Century Traders at B-1, Guru Arjun Dev Bhawan, Commercial Complex, Ranjeet Nagar, New Delhi- 110008. 13.8 It is pertinent to note that in the Account Opening Form Ex. PW21/E (colly) of current account No. 1497 of Century Traders and all the letter heads of Century Traders on which, various communications have been made to DO-XIII, NIC, New Delhi, the address of Century Traders has been given as " B-1, Guru Arjun Dev Bhawan, Commercial Complex, Ranjeet Nagar, New Delhi- 110008" . It can be observed that the signatures of accused No. 3 Devender Kumar Garg on the account opening form Ex. PW21/E (colly) are quite different from those on the Marine Claim Form, Ex. PW6/E and other letters of Century Traders placed in the claim file, Ex. PW2/B. It shows the dishonest intention on the part of said accused to conceal his identity. 13.9 PW 24 Sh. Raj Kumar, who was working as Storekeeper in Graphic System Pvt. Ltd., at 301-302, Guru Ram Dass, Bhawan, Commercial Complex, Ranjeet Nagar, New Delhi - 8, testified that he had been working there from the year 1988 till 2004. The store of Graphic System Pvt. Ltd. was CBI Case No. 27/12 28 of 39 at B-1, Guru Arjun Dev Bhawan, Commercial Complex, Ranjeet Nagar, New Delhi - 8. There was no other company working from B-1, Guru Arjun Dev Bhawan, Commercial Complex, Ranjeet Nagar, New Delhi - 8. He had never seen nor heard any company by the name of Century Traders at B-1, Guru Arjun Dev Bhawan, Commercial Complex, Ranjeet Nagar, New Delhi - 8. He has never seen board of Century Traders at the said address. He used to work at B-1, Guru Arjun Dev Bhawan, Commercial Complex, Ranjeet Nagar, New Delhi - 8. Since he had worked there from 1988 to 2004, he knew that only the store of Graphic System Pvt. Ltd. was located at the said address. The said store is still located at the said address and no other company or firm or business entity was operating from the said address. He further deposed that the office of Green Line Courier and Computers was located at B-2, Guru Arjun Dev Bhawan, Commercial Complex, Ranjeet Nagar, New Delhi - 8. During his tenure only, i.e. either in 2001 or 2002, M/s Green Line Courier & Computers had left the said premises. He further stated that in Guru Arjun Dev Bhawan, there were 4 rooms out of which, three were with Graphic System Pvt. Ltd. and one was with M/s Green Line Courier & Computers. After M/s Green Line Courier & Computers left the said premises, the room vacated by them is lying vacant.
13.10 During his cross-examination on behalf of accused No. 3 Devender Kumar Garg, PW24 Sh Raj Kumar denied the suggestion that in the cabin of M/s Green Line Courier & Computers, there was one table of Century Traders. He know Sh. Sunil Sudan, owner of M/s Green Line Courier & Computers. He denied that Sh. Sunil Sudan had given space for keeping a table to Century Traders at a monthly rent of Rs.2,000/-. He also denied that Century Traders used to work from the space provided by M/s Green Line CBI Case No. 27/12 29 of 39 Courier & Computers. During his cross - examination on behalf of accused No. 1 Yash Pal Babbar and accused No. 2 Moti Lal Mathur, he stated that there were 4 shops in the basement of Guru Arjun Dev Bhawan, Commercial Complex, Ranjeet Nagar. There were about 30-35 offices in the entire building.
13.11 It can thus be seen that during cross-examination of PW24 Sh Raj Kumar, nothing in favour of the accused could be elicited. He was the best witness with regard to occupancy of B-1, Guru Arjun Dev Bhawan, Commercial Complex, Ranjeet Nagar, New Delhi - 8 since he was working there. It is not the case of any accused person that he was not working at the above address. Therefore, the argument that owner of M/s Graphic System Pvt. Ltd. or Sh. Sunil Sudan have not been examined is of no help to the accused persons. Further, during his cross-examination, no suggestion has been given to him that Century Traders was working from B-1, Guru Arjun Dev Bhawan, Commercial Complex, Ranjeet Nagar, New Delhi - 8, which is the address of Century Traders given in the policy. The only suggestion given to him was that Century Traders was given space for keeping a table in the cabin of M/s Green Line Courier & Computer, which was located at B-2, Guru Arjun Dev Bhawan. The testimony of PW 24 has gone unimpeached. There is thus, no reason to disbelieve the same. Therefore, it is clearly established that Century Traders did not exist at their given address i.e. B-1, Guru Arjun Dev Bhawan, Commercial Complex, Ranjeet Nagar, New Delhi - 8. Non - Existence of Kay Bee Oil at Jalallabad Road, Muktsar-152026. 13.12 It is pertinent to note that in the copy of invoice No. 2228, Dt. 6-12-98, placed at page no. 8 of the claim file Ex.PW2/B, the address of Kay Bee Oils has been given as " Jalallabad Road, Muktsar-152026" . " Phone No. CBI Case No. 27/12 30 of 39 6423" , " CST No. 862832-1-8" and " LST No. 862832-1-8" are also menti oned on the copy of the invoice. PW 15 Sh. Kulbhushan, partner of M/s Milkhi Ram Ruldu Ram, Jalallabad Road, Muktsar, dealing in edible oil, has testified that the above firm was established in the year 1960 and he has been working in this firm for the last 15 to 20 years. There was no firm of the name Kay Bee Oils at Jalallabad Road, Muktsar, Punjab. Neither he know nor he has ever heard of the aforesaid firm being in existence at Jalallabad Road, Muktsar, Punjab in the year 1998. During his cross- examination on behalf of accused No. 1, he stated that he was owner of oil mill. They extract mustard oil, cotton seed oil and similar oils. He admitted that there are traders, who may not have oil mills, they deal in oil and they purchase oil from their mill and sell it. He further stated that now there are 5 to 6 big oil mills. There are various small oil mills. The position was same in 1998 also. He admitted that there are commission agents and traders in the oil business. He know almost all the traders in oil in Muktsar. There is no oil traders association in Muktsar. It may be possible that an oil trader may be doing business in more than one name. He also stated that it was possible that someone may be operating in the name of Kay Bee Oil and he may not be aware of the same. However, no specific suggestion has been given to this witness that Kay Bee Oil Mills existed at Jalallabad Road, Muktsar.
13.13 PW 17 Sh. Avinash Dabra testified that he has been running a petrol pump under the name and style of Muktsar Oil Store, situated at Jalallabad Road since 1965. A company by the name of M/s Janta Oil Mill, Jalallabad was being run by his relative. The said company has not been functioning for the last many years. He has not heard of any oil mill by the name of Kay Bee oil mill in existence on Jallalabad Road, Muktsar in the year CBI Case No. 27/12 31 of 39 1998. During his cross- examination, he stated that he was not dealing in edible oil. If there is an oil mill, they will know about it. He cannot say if people trade in oil without having an oil mill. He denied the suggestion that Kay Bee Oil Mills existed in Muktsar in the year 1998. No suggestion was given to him that Kay Bee Oil Mill existed at Jalallabad Road, Muktsar. 13.14 PW 22 Sh. B.M. Pandit, who has gone to Muktsar for inquiring about existence or otherwise of Kay Bee Oils, Jallalabad Road, Muktsar has also testified that he made inquiries from certain shopkeepers dealing in oils i.e. Sh. Kulbhushan and Sh. Avinash Dabra and they told him that no such company was in existence.
13.15 The address of Kay Bee Oil Mills given in the invoice dt 06-12-98 is Jallalabad Road, Muktsar. Thus, the prosecution could only have examined the witnesses having business establishments at Jallalabad Road. The fact that no investigation was conducted with regard to telephone number, CST number and LST number given on the copy of invoice dt. 6-12-98 does not negate the evidence of PW15 Sh Kulbhushan and PW17 Sh Avinash Dabra. It is the actual existence and functioning of the business establishment on ground which is material to ascertain whether any business transaction had taken place or not. The depositions of PW 15 Sh. Kulbhushan and PW 17 Sh. Avinash Dabra have gone unimpeached. The above evidence, when seen in the conjuction with the fact, as discussed in succeeding paras, that no claim intimation was received by NIC, DO, Bhatinda, lead to the inference that in all probability Kay Bee Oil Mills did not exist at its given address. No Role of NIC, DO, Bhatinda 13.16 It is pertinent to note that since accused No. 3 Devender Kumar Garg was himself the insured/claimant and the purported consignee, he could CBI Case No. 27/12 32 of 39 not have been appointed as surveyor in this case. PW 2 Sh. A.K. Seth has deposed about writing a letter, Ex.PW2/C to Sr. Divisional Manager, DO, Bathinda, NIC requesting them to confirm whether letter, No. SL/OS/Tech./3416, dt. 30-12-98, Ex.PW13/A was sent by them to DO-XIII and whether they had appointed Sh. Devender Kumar Garg surveyor to assess the loss in the case of Century Traders. Vide his reply, dt. 17-03-99, Ex.PW2/D, Sh. S.L. Mittal has confirmed that the letter No. SL/OS/Tech./3416, dt. 30-12-98 was not issued from their office and they had no knowledge of the said loss. PW 2 Sh. A.K. Seth has also identified signature of Sh. S.L. Mittal on Ex.PW2/D. PW 13 Sh. Vinod Kumar, who was posted as Administrative Officer at the Divisional Office, NIC, Bhatinda in December 1998, deposed that Sh. Sham Lal Mittal was Sr. Divisional Manager and he could identify his signature. He further deposed that letter dt. 30-12-98, Ex.PW13/A was not signed by Sh. S.L. Mittal. He further stated that the claim file, Ex.PW2/B was not dealt by their Divisional Office at Bhatinda. During his cross- examination, he stated that he was looking after the underwriting of whole departments, including marine, establishment and stationery. He admitted that he was not looking after the claims and intimation received by his office regarding claims of other offices all over the country. He admitted that if any claim intimation was received, he would not have attended to that and that correspondence in relation to claims at that time would not be in his knowledge. He further stated that Mr. S.L. Mittal retired, as far as he remembers, sometimes in the year 2001 and was presently residing at Kotkapura, Punjab. As far as he remember, the signature at point A on Ex.PW13/A are not of any other employee of the said branch. However, he could not say if anyone has made up the signature. He admitted that stationery/letterpad of Ex.PW13/A is official CBI Case No. 27/12 33 of 39 of their company. He further admitted that in regard to claims belonging to Divisions other than the Bhatinda Division, the processing of such claim was not dealt with at their office as per practice. He denied that signature on Ex.PW13/A were of Sh. S.L. Mittal. He also stated that he could not confirm if Ex.PW13/A originated from their office at Bhatinda.
13.17 It is well settled that handwriting/signatures of a person can be proved, inter-alia, by anybody acquainted with the same. The testimony of this witness to the effect that the letter dt. 30-12-98, Ex.PW13/A is not signed by Sh. Sham Lal Mittal has gone unimpeached. It is not the case of the accused persons that Sh. S.L. Mittal was not posted as Sr. Divisional Manager at DO, Bhatinda at the relevant time. The argument that prosecution should have produced the dispatch register, claim intimation register and surveyor appointment register of NIC, DO, Bhatinda to prove that no claim intimation was received by them, no surveyor was appointed by them and no letter dt. 30-12-98, Ex. PW13/A was written by them as these facts could only be proved by documentary evidence is not tenable. As per section 59 of the IEA, it is only the contents of a document which are required to be proved by that document itself. The fact that a document is forged can be proved by leading evidence that the said document is not signed by its purported author or signatory. Thus it is clear that the letter, Ex.PW13/A was not written by DO, Bhatinda. It is also clear that NIC, DO, Bhatinda had neither received any claim intimation nor any surveyor was appointed by them. Therefore, the report, dated 26-12-98 of accused No. 3 Devender Kumar Garg is bogus. In any case, since accused No. 3 Devender Kumar Garg has himself obtained the insurance policy in question, he could not have been appointed the surveyor. Accused No. 3 Devender Kumar Garg has in a blatant manner CBI Case No. 27/12 34 of 39 obtained the marine policy in the name of Century Traders which was not existing at the given address and also fabricated the survey report showing himself to have been authorized by DO Bhatinda to conduct the survey. 13.18 There appears to be no dispute that The Montegomery Motor Goods Transport Company (Registered) was existing at A-5344, Kakkar House, Kila Road, Bathinda. Though, PW 4 Sh. Gulshan Rai Kakkar has deposed about signing letter, dt. 22-12-98, Ex.PW4/A, shortage Certificate, dt. 22-12-98, Ex.PW4/B as well as GR, Ex.PW4/C, it is not the case that he has witnessed the loading of the truck in question with the consignment of Kay Bee Oils. Further, in view of the overwhelming and convincing evidence to the effect that accused No. 3 Devender Kumar Garg has himself obtained marine policy, Century Traders was not existing at their given address, Kay Bee Oil was apparently not existing at their given address, no claim intimation was received by DO, NIC, Bathinda, no letter, Ex.PW13/A was written by DO-XIII, Bathinda and no consignment was sent, the testimony of PW 4 Sh Gulshan Rai Kakkar does not inspire any confidence. No evidence has been led by the accused to prove the existence of Kay Bee Oils Muktsar, and the existence of Century Traders at their given addresses and that the consignment of edible oil as covered by the policy was sent. Prosecution is not required to disprove each and every part or component of the purported consignment for which marine insurance was obtained and claim made. Ergo, the argument that no investigation was conducted with regard to the accident of the truck etc. is of no help to the accused.
13.19 In view of the established facts that accused No. 3 Devender Kumar Garg was the Proprietor of Century Traders, i.e. the insured and the claimant, Century Traders did not exists at its given address, no claim CBI Case No. 27/12 35 of 39 intimation was sent to NIC, DO, Bhatinda, no surveyor was appointed by them and no letter was written by them to DO-XIII, NIC, it is clear that no consignment was sent by Century Traders. Consequently there was no question of loss of consignment. Ergo, the claim was fraudulently obtained on the basis of forged/false documents i.e. the invoice no. 2228 dt. 06-12-1998, GR, Ex. PW 4/C and survey report dated 26-12-98. 13.20 The argument of Sh Umesh Sinha, ld counsel for accused No.1 Yash Pal Babbar that there has been a delay in registration of FIR does not hold any water. The case is of cheating and forgery. Unlike offences involving use of criminal force, offences involving cheating and forgery etc may not be detected immediately on commission. Generally, it is only after scrutiny of documents and enquiry that such offences are detected. Ld counsel has not explained as to how there was any undue delay in registration of FIR or how it was fatal to the case? He has also not shown any law which, in the facts of this case, would bar filing of more than one charge sheets in one FIR or would vitiate trial on the ground that FIR has been registered without conducting preliminary enquiry. Thus, his contention in this regard is also not tenable. 14.1 Ld P.P. has argued that accused No. 3 Devender Kumar Garg could not have cheated NIC by obtaining claim amount based on forged documents without connivance of officers of DO-XIII, NIC, accused No.1 Yash Pal Babbar and accused No. 2 Moti Lal Mathur. Ld. defence counsels contended that the said accused persons acted in good faith and they had no knowledge of any fraud. It is considered that no cogent evidence has been led against accused No. 1 Yash Pal Babbar and accused No. 2 Moti Lal Mathur to show their complicity in the matter. As earlier observed, prosecution cannot base its case only on the ground that documents in the claim file were CBI Case No. 27/12 36 of 39 not complete, as no sanctity of preservation of record has been maintained. In this regard, reference can be made to judgment, dt. 28-05-2013 of the Hon'ble High Court in Anil Maheshwari Vs. CBI (Supra). From the evidence brought on record by the prosecution through various officers/officials of NIC, it appears that in case of any marine claim, the survey regarding damage to the consignment, tracing the consignment and verification of documents was being done by empanelled surveyors/tracers/verifiers and the officers of the insurance company were relying upon their reports to process and sanction the claim.
14.2 Ld. P.P. has argued that in this case, the cover note, Ex.PW5/B has been issued by accused Yash Pal Babbar and policy, Ex.PW5/A has been issued by accused No. 2, Moti Lal Mathur and the claim cheque, Ex.PW6/F was also signed by accused No. 1 Yash Pal Babbar and accused No. 2 Moti Lal Mathur and not by officers of Accounts Section. Ld. Counsels for the said accused persons submit that in the absence of officers of the Accounts Section, the accused persons had to perforce sign the claim cheque and there is no illegality in the same. PW 2 Shri A.K. Seth, during his cross examination on behalf of accused No. 1, stated that they had not specifically pointed out in Ex. PW1/A that Moti Lal Mathur or Yash Pal Babbar committed any specific irregularity or dereliction of duty. PW 6 Sh. Vinod Kumar, during his cross examination on behalf of accused No. 2, Moti Lal Mathur, admitted that an officer has to prepare the processing note if the Dealing Assistant is not available in the office on account of leave or otherwise. He further stated that he cannot say if there is any illegality or irregularity or deviation from the established rules in the preparation of various documents in the file. It is well settled that negligence/ dereliction in the performance of duty is different from CBI Case No. 27/12 37 of 39 dishonest act done in the performance of duty. To prove a dishonest or fraudulent act, prosecution has to lead some positive evidence. In Anil Kumar Bose Vs. State of Bihar, AIR 1974 SC 1560, it was held that, in case of public servant, an error of judgment or breach of performance of duty, per se, cannot be equated with dishonest intention to establish the charge u/s 420 IPC. It is, ergo, considered that the mere signing of cover note, policy and the cheque is not sufficient to hold the said accused persons liable for conspiracy or for criminal misconduct.
Conclusions 15.1 In view of the aforesaid discussions, it is considered that prosecution has been able to prove beyond a reasonable doubt that :-
(a) Accused No. 3 Devender Kumar Garg cheated DO-XII, NIC, New Delhi by dishonestly inducing it to sanction insurance claim of Rs.2,85,640/- in favour of Century Traders on the basis of forged documents i.e. invoice, GR and survey report etc. and received the cheque of claim amount which was credited in account No. 1497 of Century Traders, of which, he was the Proprietor, and
(b) Accused No. 3 Devender Kumar Garg used forged documents i.e. invoice, GR and survey report etc. as genuine for the purpose of cheating, knowing fully well that the said documents were forged.
15.2 However, the prosecution has not been able to prove beyond a reasonable doubt that accused No. 1 Yash Pal Babbar or accused No. 2 Moti Lal Mathur entered into any criminal conspiracy with accused No.3 Devender Kumar Garg to cheat NIC or that they committed any criminal misconduct by use of illegal means or abuse of their official position. 15.3 The points at para 9 are decided accordingly.
CBI Case No. 27/12 38 of 39 15.4 In view of the aforesaid , it is held that :- (a) Accused No. 3, Devender Kumar Garg is guilty for commission of
offences punishable (i) u/s 420 IPC and (ii) u/s 471 r/w section 468 IPC and he is convicted accordingly. However, he is acquitted of the charge u/s 120 B r/w sections 420, 467, 468, 471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988.
(b) Accused No. 1 Y.P. Babbar is acquitted of the charges (i) u/s 120 B r/w sections 420, 467, 468, 471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988 and (ii) u/s 13 (2) r/w section 13 (1) (d) of the PC Act, 1988.
(c) Accused No. 2 Moti Lal Mathur is acquitted of the charges (i) u/s 120 B r/w sections 420, 467, 468, 471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act 1988, and (ii) u/s 13 (2) r/w section 13 (1) (d) of the PC Act, 1988.
16.1 Let the convict be heard on the point of sentence on 03-01-2014.
Announced in the Open Court today on 20th Day of December, 2013.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi
(ra/pa)
CBI Case No. 27/12 39 of 39