Delhi District Court
Pradeep Kumar Aggarwal vs C.B.I on 10 January, 2011
IN THE COURT OF SH. R.K.GAUBA, ADDL. SESSIONS JUDGE 01
(CENTRAL): DELHI
(1)Criminal Appeal No. 01/08
ID No.: 02401R0029252008
Pradeep Kumar Aggarwal
s/o Sh. Raj Kumar Aggarwal,
R/o B74, Jigar Colony, Civil Lines,
Moradaba, U.P. ...Appellant.
Versus
C.B.I. ...Respondent.
(2)Criminal Appeal No. 02/08
ID No.: 02401R0011432008
Rakesh Rai
s/o late Sh. Prahalad Rai,
R/o 940, Vikas Kunj, Vikaspuri,
New Delhi. ...Appellant.
Versus
C.B.I. ...Respondent.
Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 1 of 47
Instituted on: 04.01.2008 & 07.01.2008 respectively.
Judgment reserved on:18.12.2010.
Judgment pronounced on:10.01.2011.
J U D G M E N T
1. These two criminal appeals arise out of judgment dated 14.11.07 and order on sentence dated 12.12.07 passed by the Court of Sh. Kanwaljeet Arora, Additional Chief Metropolitan Magistrate (ACMM), Delhi in Criminal Case No. 1430/93, registered on basis of the report under section 173 Cr.P.C submitted on conclusion of Regular Case (RC) Nos. 2 & 3 / 91/SIU (X) / CBI, New Delhi, both dated 25.11.91.
2. As per the report under section 173 Cr.P.C (herein after, "the charge sheet"), four persons were sent for trial which included accused no. 1 Javed Waqar Merchant @ Mohd. Waqar S/o Sh. S.M. Asif, R/o 26, Thathera Street, Moradabad (UP), (hereinafter, "A1"), accused no. 2 Pradip Kumar Aggarwal S/o Sh. Raj Kumar Aggarwal, R/o Raja Building, Mufti Tola, Moradabad, UP, (hereinafter,"A2), accused no. 3 Rakesh Rai S/o Sh. Prahlad Rai, R/o 940, 7th Floor, Vikas Kunj, Vikas Puri, New Delhi, (hereinafter,"A3") and accused no. 4 Smt. Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 2 of 47 Sayesta Bano W/o Javed Waqar Merchant, R/o 26. Thathera Street,Moradabad (UP), (hereinafter,"A4).
3. A1 and A4 are married to each other. Both of them absconded during the trial and came to be declared Proclaimed Offenders.
4. A2 and A3 are stated to have been engaged by A1 to assist him in his business. Both of them faced the trial which resulted in the impugned judgment whereby each was held guilty and convicted. While A2 was convicted for the offences under section 120B read with 420 IPC and also on a separate charge for substantive offence under section 420 IPC, A3 was convicted for the offence under section 120B read with section 420 IPC and on separate charges for substantive offences under sections 420 and 468 IPC. As per the order on sentence, the ACMM awarded rigorous imprisonment for one year with fine of Rs. 10,000/, in default simple imprisonment for one month on each count to the two persons so convicted, directing the substantive sentences to run concurrently with benefit of setoff for the period of detention already undergone under the provisions of 428 Cr.P.C..
5. Both A2 and A3 have now come up in these two separate appeals which, having arisen out of the same judgment / order, have been heard together. The appellants, for the sake of convenience, shall be Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 3 of 47 referred to hereafter as A2 and A3 respectively.
6. Before taking up the contentions urged in these appeals, it would be proper to take note of, albeit briefly, the case set up in the charge sheet.
7. The prosecution case relates to wrongful loss allegedly caused to the Government of India, pursuant to a criminal conspiracy hatched by A 1, in connivance with others including his wife A4 besides A2 and A3, by securing certain payments on false representation and forged documents, thereby claiming having made certain exports shown to be covered by the scheme introduced by the Government for twin purposes of earning foreign exchange for India and for generating employment to the citizens of the country by providing them incentive in the form of payment of duty drawback against export of goods produced indigenously.
8. Under the scheme, the exporters would register themselves with the Government to claim duty drawback for which rates were specified. As per the practice that evolved for enforcement of this scheme, the registered exporter would file the application for claiming duty drawback supported by the shipping bill against which the export had been made. The shipping bill submitted with the application would be entered in the shipping bill entry register at the Air Cargo unit. The Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 4 of 47 claim would be subjected to verification by way of inspection of the goods exported and proof of airlifting as evinced by corresponding entries in the warehouse register of the concerned airlines. The shipping bills would be processed by the duty drawback section of the Customs department. After being so processed, they would be subjected to preaudit by the concerned section and, thereafter, the payment of duty drawback released, generally by way of cheque despatched to the concerned party or its agent by registered post.
9. The procedure followed in above regard came to be proved during the trial through various witnesses for the prosecution including Mr. Jagdish Chand Sharma (PW11), Mr. Jagdish Prasad Rawat (PW7), Mr. A.S. Bedi (PW18) and Mr. S.K. Chaudhary (PW26), and there is not contest whatsoever on behalf of the appellants.
10. It was the case of the prosecution that A1, claiming himself to be an exporter of ophthalmic lenses, submitted certain claims in the names of two firms, namely, M/s. Soflens Exports and M/s. Schott (India), claiming to be their proprietor and received payments in the nature of duty drawback there against from the Govt. of India.
11. It was alleged that in the name of M/s. Soflens Export, 20 such bills were submitted allegedly supported by 20 fictitious shipping bills and invoices purporting to be pertaining to the period 15.04.91 to Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 5 of 47 23.04.91, indicating exports of coloured ophthalmic lenses to M/s. JE Creation of USA, M/s. Prince Opticians in Dubai, M/s. Elyas Optics, Madina and M/s. Lutfi Optical Centre, Diera, Dubai. Similarly, in the name of M/s. Schott (India), 18 such bills were submitted, allegedly supported by fictitious shipping bills and invoices purporting to be pertaining to the period 13.07.90 to 07.05.91, indicating exports of coloured ophthalmic lenses to M/s. JE Creation of USA, M/s. Prince Opticians in Dubai, M/s. Lutfi Optical Centre, Diera, Dubai and M/s. Gulf Optic, Dubai.
12. It was further alleged that the shipping bills, 20 of M/s. Soflens export and 18 of M/s. Schott (India) were got entered in the shipping bill entry registers at Air Cargo Unit, IGI Airport, New Delhi by A1 and, thereafter, taken by A1 for the cargo to be tendered to Air India warehouse for inspection and airlifting. The consignments were, however, not tendered at Air India warehouse for inspection and onward airlifting by International Airports Authority of India (IAAI), IGI Airport, New Delhi and thus no exports actually made against the said shipping bills.
13. It was alleged that A1 submitted the said 20 and 18 fictitious shipping bills along with applications in the duty drawback section of Customs department, Customs House, New Delhi, getting entered in Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 6 of 47 the duty drawback ledger that they pertain to Air India counter of duty drawback section.
14. The shipping bills and corresponding claims against the 20 alleged exports in the name of M/s. Soflens Exports resulted in an amount of 29,35,040/ being paid as duty drawback to A1 by way of 4 account payee cheques issued in his favour. The said four cheques issued by duty drawback section came to be deposited in the current account no. 28346 opened in Union Bank of India, Station Road Branch, Moradabad (UP), and later entirely withdrawn by A1 in cash / cheques issued under his signatures. Similarly, the shipping bills and corresponding claims against the 18 alleged exports in the name of M/s. Schott (India) resulted in an amount of 26,87,440/ being paid as duty drawback to A1 by way of 6 account payee cheques issued in his favour. The said six cheques issued by duty drawback section came to be deposited in the current account no. 28331 opened in Union Bank of India, Station Road Branch, Moradabad (UP), and later entirely withdrawn by A1 in cash / cheques issued under his signatures.
15. It is alleged that no cargo cases of any of these shipping bills were ever tendered at the warehouse of Air India nor any exports actually made by A1. It is alleged that the token numbers allotted for Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 7 of 47 payments against these shipping bills do not tally with any allotted to the said firms of A1.
16. The prosecution case is that Directorate of Revenue Intelligence (DRI), a department of the Govt. of India discovered this fraud on investigating into specific information received concerning the said two firms floated by A1. On complaints dated 23.11.91 and 22.11.91 respecting 16 and 17 shipping bills in the names of M/s Soflens Exports and M/s Schott (India) respectively, made by Mr. M.N. Dhar, Assistant Director, DRI (PW21), the FIRs, RC No. 2/91 (Ex. PW 26/1) and RC No. 3/91 (Ex. PW26/2) were registered by CBI. The investigation allegedly brought out that the offences of cheating in both the FIRs stemmed from the same criminal conspiracy in which A1 was the mastermind. On the basis of investigation, a common charge sheet was thus laid in the Court of ACMM.
17. According to the charge sheet, the investigation had revealed that all the corresponding records in the nature of paid copies (i.e. the triplicate copies) of the shipping bills in respect of the two firms as aforesaid of A1, except one, were not traceable in the duty drawback section of the Custom department. The one shipping bill (triplicate copy) that could be traced out and seized during investigation relates to shipping bill no. 080089 which is mentioned at SI. No. 14 in the 18 Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 8 of 47 shipping bills pertaining to M/s. Schott (India) and purports to be dated 07.05.91 indicating it to relate to export of goods of the value of Rs.8,96,000/ to M/s. JE Creation USA, entitling the exporter to duty drawback payment in the sum of Rs.2,49,600/. It is alleged that the investigation revealed that this sole shipping bill which could be traced out was forged by A3 by fabricating the signatures of Mr. S. M. Goel, Inspector, Customs and Mr. Y.R. Kilania, Superintendent, Customs posted at IGI Airport, purporting to show that they had inspected the goods at the Cargo section. It is alleged that the goods were never tendered nor ever inspected at the Cargo section as purportedly shown by the said shipping bill. It is further alleged that the signatures purporting to be found on the said document have been opined by Govt. Examiner of Questioned Documents (GEQD) to be forged by A3 in his own handwriting.
18.It is stated in the charge sheet that the RBI export code no. KS001017 and no. 000999 as appearing in the shipping bills of M/s Soflens Exports and M/s. Schott (India) respectively were not actually allotted by RBI, Kanpur to the said firms.
19.The prosecution case further is that A3 had opened account no. 18046 dated 03.05.91 in the name of M/s Indoptik Exports in Union Bank of India, Station Road Branch, Moradabad, impersonating Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 9 of 47 himself as one Ravi Jain. Through separate cheques 03.05.91 and 13.05.91, issued by A1, he (A3) received in this account, money to the extent of Rs.3,01,000/ from the account of M/s Soflens Exports, referred to earlier. The said amount was withdrawn by A3.
20.It is alleged by the prosecution that A2 was actually a taxi driver based in Moradabad and would ferry A1 in his taxi from Moradabad and helped him around in the fraudulent claims. It is alleged that A2 had also opened a current account no. 18048 on 24.09.91 in Union Bank of India, Station Road, Moradabad, also in the name of M/s. Indoptik Exports, the same name and style as used by A3 in respect of the account opened by the latter in the name of Ravi Jain. This account of A2 was allegedly introduced by A4, the wife of A1. It is alleged that fictitious claim in the name of M/s Indoptik Exports had been made against three shipping bills nos. 080088, 080108 and 0800099 all dated 07.03.91 against which a duty drawback cheque for Rs. 2,28,750/ was issued which came to be deposited and the credit received there against by A2 in the aforementioned current account no. 18048. It is stated by the prosecution that no export had actually being made against the said shipping bills. The original shipping bills could not be traced.
21.It is further alleged that A2 received amounts of Rs. 90,000/ on Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 10 of 47 04.05.91 and two amounts of Rs. 50,000/ each on 18.06.91 and 21.05.91 respectively by way of cheques issued by A1 from the account of M/s Soflens Exports and M/s Schott (India) respectively, which were realised through the account no. 18048 opened by A2.
22.The prosecution case is that the shipping bill no. 080089 on which A 3 had fabricated the signatures of the two custom officials was the only document that could be investigated from the perspective of the role of official of the Custom department. In absence of other shipping bills, the role of customs officials respecting the other transactions could not be investigated.
23.As against A4, the case of the prosecution in the charge sheet was that she had opened account no. 28342 on 14.12.90 in Union Bank of India, Station Road, Moradabad, in the name of M/s Street Art Exports, which account was introduced by A1. This account is alleged to have been used to divert the amounts received fraudulently in the accounts of the two firms of A1. The investigation brought out that sums of Rs. 75,000/ and Rs. 32,000/ were transferred from M/s Soflens Exports and M/s Schott (India) through cheques into the account of A4 who withdrew the same under her signatures.
24. Having taken cognizance on the basis of charge sheet containing allegations to above effect, the learned ACMM considered the Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 11 of 47 question of charge against A2 and A3 (A1 and A4 having absconded) vide his order dated 11.04.2001. Separate charges were framed against A2 and A3. Charge for criminal conspiracy under section 120B read with section 420 IPC, in which A1 and A4 were also party, was common to A2 and A3. In addition, similar charges for the substantive offence under section 420 read with section 120B IPC respecting the duty drawback payments received against the 20 fictitious bills in the name of M/s Soflens Exports and 18 fictitious bills in the name of M/s Schott (India) were also framed against A2 and A3. Two additional charges for the offence under section 468 IPC and for the offence under section 471 read with section 120 B IPC were also framed against A3 respecting the forgery concerning the shipping bill no. 080089 and also the account opening form in the name of Ravi Jain respecting account no. 18046 as aforementioned. Both A2 and A3 pleaded not guilty and claimed trial.
25. The prosecution led evidence before the ld. ACMM in the course of which 28 witnesses were examined as under:
(i) Shyam Lal (PW1), Customs Superintendent (Audit);
(ii) Yad Ram Kilania (PW2), Superintendent (Cargo) at IGI Airport;
(iii) V.C. Tiwari, (PW3), Superintendent (Customs), posted in DRI as Intelligence Officer;
(iv) A.K. Chaturvedi (PW4), Intelligence Officer in DRI;
(v) Vipin Tyagi (PW5), Manager of Indian Overseas Bank; Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 12 of 47
(vi) H.N. Meena (PW6), Inspector in Customs Audit;
(vii) Jagdish Prasad Rawat (PW7) Inspector, Customs Audit;
(viii) Surinder Mohan Goel (PW8), Inspector, Air Cargo Unit;
(ix) Pratibha Sinha (PW9), Inspector Customs in Duty Drawback section;
(x) Zaki Anwar (PW10), Inspector Customs in Duty Drawback Section;
(xi) Jagdish Chand Sharma (PW11), Official in Customs Department, Duty Drawback Section;
(xii) Sameer Prakash (PW12), Official of Bank of America, Barakhamba Road, New Delhi;
(xiii) Om Prakash Singh (PW13), Inspector in Duty Drawback Section;
(xiv) Raj Kumar (PW14), LDC in Duty Drawback Section;
(xv) Hari Singh (PW15), Inspector, Duty Drawback Section; (xvi) Ravinder Behra (PW16), Officer, Indian Overseas Bank; (xvii) Basanti Lal Sharma (PW17), Superintendent, Duty Drawback Section;
(xviii)A.S. Bedi (PW18), Assistant Collector, Duty Drawback Section; (xix) Yogesh Chand Goel (PW19), Accountant, Union Bank of India, Station Road, Moradabad;
(xx) R.S. Lamba (PW20), Assistant Accounts Officer in Pay & Accounts Office of Collectorate of Central Excise; (xxi) M.L. Dhar (PW21), Assistant Director (Investigation) of DRI; (xxii) S.K. Panda (PW22), Assistant Commissioner, Duty Drawback Section;
(xxiii)Virender Kumar Srivastav (also PW22), Exchange Control Officer of RBI;
(xxiv) R.M. Sinha (PW23), Senior Manager, Union Bank of India, Station Road, Moradabad;
(xxv) Mahesh Kumar Mehrotra (PW24), Clerk of Union Bank of India, Station Road, Moradabad;
Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 13 of 47 (xxvi) D.K. Singh (PW25), Special Assistant, Union Bank of India, Station Road, Moradabad;
(xxvii)S.K. Chaudhary (PW26), DSP, CBI; and (xxviii)R.K. Jain (PW27), GEQD.
26.The ACMM recorded the statements of A2 and A3 under section 313 Cr.P.C on 27.09.2005. The two appellants in the said statements denied the incriminating evidence put to them for explanation. Both claimed to be innocent and falsely implicated. Both sought opportunity to lead evidence in defence. But both, despite opportunity, did not adduce any evidence in defence.
27. The Ld. Trial Court after hearing arguments passed the impugned judgment and order on sentence which has been assailed through the appeals at hand.
28.I have heard Sh. P.S. Singal, Advocate for the two appellants and Sh. Pravin Srivastav, Public Prosecutor for CBI. I have been taken through the record by both sides during the course of arguments.
29. Given the facts and circumstances of the case in general, and given the charge of criminal conspiracy involving, amongst others, the role of A1 and A4, it is essential to appreciate the evidence concerning them as well for examining the correctness of the findings returned by ACMM concerning A2 and A3.
Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 14 of 47
30.In the impugned judgment, the Ld. ACMM concluded on the basis of evidence, particularly through the mouthpiece of PW1, PW2, PW7, PW8, PW11 to 15, PW17 and PW18 that claims of duty drawback were submitted on the basis of 20 shipping bills in the name of M/s Soflens Exports and 18 shipping bills in the name of M/s Schott (India) by A1 (Proclaimed Offender) resulting in the same being processed and payments to the tune of Rs. 29,35,040/ and Rs. 26,87,440/ being released as duty drawback vide four and six cheques respectively, which were deposited by A1 (Proclaimed Offender) in the current account nos. 28346 and 28331 of the said firms, both in Union Bank of India, Station Road, Moradabad. The evidence in this regard remained uncontroverted. The evidence of the prosecution has also shown that there were no records of consignments against any of the said shipping bills having ever been tendered for inspection or for airlifting. The evidence of PW22 Mr. Virender Kumar Srivastav, Exchange Control Office of RBI additionally brought on record the fact that these shipping bills submitted by A1with his claims for duty drawback in favour of his said two firms carried RBI Export Codes No. KS001017 and 000999 as false representation in as much as the said RBI codes actually stood allotted to M/s. SS Export Products and M/s Sona Exports Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 15 of 47 International respectively and not to the firms of A1. There is nothing in the crossexamination of any of the relevant witnesses concerning the role of A1 to create doubts as to his complicity in the crime of cheating against the Govt. of India in the manner mentioned above. In fact, no effort has been made either at the stage of trial or even in these appeals to contest the evidence regarding complicity of A1.
31. It does appear that though in the charge sheet A1 was accused of having caused wrongful loss to the Government, and consequently wrongful gain to himself, in the sum of Rs. 29,35,040/ and Rs. 26,87,440/ by claiming from and persuading the Customs Department to issue cheques for payment of duty drawback in the names of his said two firms on the basis of forged shipping bills and invoices, concerning 20 and 18 shipments of exports respectively, even during investigation no documentary evidence concerning the said shipping bills / invoices, except one bearing no. 080089, attributed to be in the hand of A3 could be dug out. Undoubtedly, the missing link concerning other 37 transactions did make the job of the prosecution a little difficult. But then, the shipping bills and invoices need not be the evidence without which the prosecution must fail.
32.As noticed by the learned Trial Court, and as confirmed by the Trial Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 16 of 47 Court record, there is abundant material brought in otherwise showing the connection of A1 with the said two firms and the respective accounts thereof with Union Bank of India, Station Road, Moradabad. The evidence adduced before the Trial Court further includes evidence showing the receipt of the said payments on the basis of the cheques issued by the Customs Department in favour of the said two firms. Forgery in respect of one out of the said 38 transactions is sought to be supported by concrete evidence in the form of the shipping bill allegedly forged. In this light, the initial presumption of innocence does get dispelled. A1 is absconding with his wife A4. The role of the wife (A4) has also been brought out through evidence concerning her firms. The evidence does show transfers of money from the accounts of Firms of A1 into that of the firm of A4 and withdrawals there from. The evidence also shows the role of A4 concerning the account of the firm opened by A2 with the same bank which shall be seen a little later. The conduct of abscondance on the part of A1 and A4 has also to be treated as incriminating circumstance qua accusations against them.
33. The findings recorded by the Ld. Trial Court in regard to A1 and A4 are based on correct appreciation of the facts and evidence and proper application of law on the subject. Therefore, while examining the case Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 17 of 47 against A2 and A3, one has to proceed on the basis that A1 and A4 did commit the acts of commission / omission attributed to them which collectively indicate and constitute criminal conspiracy involving them and the offences of cheating, forgery of valuable documents and use thereof for purposes of achieving the object of the said criminal conspiracy, viz. to gain wrongfully at the cost of the Customs Department.
34. This case is based mainly on circumstantial evidence. Hon'ble Supreme Court in State Vs. Nalini, AIR 1999 SC 2640 observed as under on the subject of conspiracy: "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information, some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators....".
35. In Kehar Singh Vs. State AIR, 1988 SC 1883, Hon'ble Supreme Court observed that :
" It is however essential that the offence of conspiracy Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 18 of 47 requires some kind of physical manifestation of agreement. The express agreement, however need not be proved nor is it necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient."
36. Hon'ble Supreme Court in case of Hanumat Govind Nagacunda Vs. State of MP AIR 1952 SC 343 observed that it needs to be remembered that in case where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilty is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused and should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. It has been authoritatively held in various Judgments of Hon'ble Supreme Court including Sharda B. Sarda Vs. State of Maharashtra AIR 1984 SC 1622, C. Channy Reddy Vs. State of AP (1996) 10 SCC 193, State of Veera Reddy Vs. State of AP AIR 1990 SC 79, Kali Ram Vs. State of Rajasthan 1977 SCC(Cri) 250 and Balvinder Singh Vs State of Punjab 1996 (1) CCC 5 SC that the conditions precedent for conviction to be Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 19 of 47 based on circumstantial evidence which must be fully established are :
(a) The circumstances from which the conclusion of guilt is to be drawn should be fully, cogently and firmly established, as distinguished from 'may be' established, as distinguished from 'may be' established;
(b) the facts so established should be consistent only with the hypothesis of the guilty of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(c) the circumstances should be of a conclusive and definite nature and tendency unerringly pointing towards the guilt of the accused;
(d) they should exclude every possible hypothesis except the one to be proved; and
(e) the circumstances, taken cumulatively, should form a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocent of the accused and must show that in all human probability the act must have been done by the accused.
37. The above law has been retraced and chronicled in judgment of Hon'ble High Court reported as State Vs. Shaquila 88(2000) Delhi Law times 219(DB).
38. The persons who stood this trial jointly have faced the charge of criminal conspiracy under Section 120B IPC. Two of the said alleged coconspirators, viz. A1 and A4 have chosen to abscond. The Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 20 of 47 prosecution projected all the said persons including A1 and A4 as coconspirators. In this context, Section 10 of the Evidence Act is relevant. It reads as under: "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 as 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. "
39. It is well settled that the criminal conspiracy may come into existence and may persist and will persist so long as the persons constituting the conspiracy remain in an agreement and so long as, they are acting in accord, in furtherance of the object for which they had entered into the agreement. The agreement is the gist of the offense of criminal conspiracy, but in order to constitute a single general conspiracy, there must be a common design and a common intention of all to work in furtherance of the common design. Each conspirator might be playing a separate part in one integrated and united effort to achieve Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 21 of 47 the common purpose. Each one would know the part that he is expected to play in a general conspiracy though he might not know all its secrets or the means by which the common purpose was to be accomplished. The evil scheme might have been promoted by a few, some might drop out and some might join at a later stage, but the conspiracy might continue until broken up.
40. A general conspiracy has to be distinguished from a number of separate conspiracies having a similar general purpose. Where different groups of persons cooperate towards their separate ends without any privity with each other, each combination would constitute a separate conspiracy. A conspiracy has been equated with a running stream or a running train. Some persons join it at the beginning while others might join it later. But they are all parties to the same general conspiracy, leaving aside certain other unrelated conspiracies or separate conspiracies among some of the members who cooperate towards their separate ends. Reference in this context can be made fruitfully to Abul Rehman and others V. Emperor (AIR 1935 Calcutta), Mohd. Hussain Umar Kochra V. K.S. Dalipsinghji (AIR 1970 SC 45) and State Vs. Riaz Ahmad and others (Criminal Appeal No. 27 of 1970 decided on 20.4.1971 by Hon'ble High Court of Delhi).
Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 22 of 47
41. In State Vs. V.C.Shukla AIR 1980 SC 1382, it was observed that in order to prove a criminal conspiracy under Section 120B of IPC, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence, and this required that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of the offence, and while in most cases it would be difficult to get direct evidence of an agreement to conspire, a conspiracy could be inferred from the circumstances giving rise to a conclusive or irresistible inference of an agreement. Undoubtedly, the burden of proving the facts or circumstances beyond all reasonable doubts remains that of the prosecution.
42.The evidence against A2 and A3 has to be examined in light of the above law.
43. Coming to the evidence concerning specific role attributed to A3, as mentioned earlier, he is linked to the criminal conspiracy allegedly hatched by A1, on the basis of the shipping bill no. 080089, referable to one of the transactions (SI. No. 14) pertaining to M/s Schott (India) dated 07.05.91. The allegation against him is that the inspection certificate on this document was forged by him in his own hand and that the cargo represented therein was actually never exported. In Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 23 of 47 addition, he is stated to have opened the account no. 18046 on 03.05.91 in Union Bank of India, Station Road, Moradabad, in the name of a firm styled as M/s Indoptik Exports, impersonating as Ravi Jain, proprietor of the said firm. He received two cheques dated 03.05.91 and 13.05.91 thereby receiving credit to the tune of Rs. 3,01,000/ in the name of the said firm M/s Indoptik Exports, issued by A1 from the aforementioned account of M/s Soflens Exports in which A1, in turn, had received the wrongful gain of duty drawback.
44.A3 in his statement under section 313 Cr.P.C denied the incriminating evidence as incorrect. He denied that he had opened any such fictitious account or having impersonated as Ravi Jain. He denied having forged the handwriting of custom officials for fabricating a note of inspection on the shipping bill mentioned above. It may be mentioned here itself that though he sought opportunity for the purpose but did not adduce any evidence in defence.
45. Ex. PW1/1 is the document in question. PW8 S.M. Goel, Inspector, Customs denied that the document is in his handwriting or bears his signatures as it purports to do. The document also bears a rubber stamp impression. The witness stated this rubber stamp does not relate to him and the same has been forged, clarifying that he was not using the stamp appearing in the document in question. In this Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 24 of 47 document only the expression "S.M." are readable in the rubber stamp impression. In his crossexamination, it was brought out that there were six inspectors posted in the warehouse during the relevant period and Superintendent Customs / Incharge warehouse could mark the shipping bills and other documents for inspection of the shipments / goods to any of the said inspectors. He denied, under cross examination, the suggestion that the document is in his handwriting or that he was deposing falsely to save his own skin.
46. PW2 Y.R. Kilania was posted as Superintendent Cargo in the office of Assistant Commissioner, Cargo at IGI Airport, New Delhi during the relevant period. The document Ex. PW1/1 purports to bear his signatures as well. PW2 was examined and shown the document but he denied that it bears his signatures, stating the same had been forged. Under crossexamination, PW2 also stated that there were 8/10 Superintendents in Air Cargo in 1991. It was put to him by the defence that he had been confronted with this document during inquiry by DRI. He asserted that he had stated even then that the document Ex. PW1/1 does not bear his signatures. He stated that the shipping bills which came to Air Cargo were entered in warehouse register which was maintained by one of the inspectors. According to him, there were several warehouses and the Incharge Superintendent Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 25 of 47 would mark the shipping bill for examination. He confirmed during crossexamination that he had checked and verified and had found that there was no corresponding entry in the warehouse register.
47. PW1 Shyam Lal was posted as Custom Superintendent, Audit in the office of Assistant Commissioner Audit, New Delhi. It was his duty to audit the shipping bills, check the rate of drawback and foreign exchange applicable at the relevant time and send the bills thereafter to the Superintendent Customs / Audit for his counter signatures. He would receive these documents for checking from Inspector in question. After the said exercise, the shipping bills would be returned to duty drawback section for release of payments. The shipping bill Ex.PW1/1 bears his signature at the stage of said preaudit i.e. in audit before payment was released. He conceded that before countersigning and forwarding the said shipping bill for release of payment he had not verified or tallied the particulars mentioned in the shipping bills.
48.The evidence of PW26, the IO, has confirmed that the specimen signatures of PW2 and PW8 were obtained during the course of investigation and made over to PW27 Sh. R.K. Jain, GEQD for comparison with the questioned handwriting and opinion there upon. PW27 has proved his report Ex. PW27/3 with reasons vide Ex. PW Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 26 of 47 27/4. In the opinion of PW27, the handwriting expert, the signatures purporting to be of PW8 on the document Ex. PW1/1 are in the handwriting of A3. The Trial Court found no plausible argument supporting the plea of innocence submitted by A3 in this regard and on the basis of the evidence of PW2, PW8, PW26 and PW27 concluded that the prosecution had proved that the inspection note Ex. PW1/1 contains forgery of the signatures of PW8 by A3 in his own hand.
49.PW23 Sh. R. M. Sinha was posted as Sr. Manager, Union Bank of India, Station Road, Moradabad. He proved, amongst others, the specimen signature card Ex. PW23/2 of the account holder who had opened the account no. 18046 in the name of Ravi Jain proprietor of M/s. Indoptik Exports on 03.05.91. PW23 also proved documents Ex. PW23/1 (collectively) which include cheque bearing no. 0252383, debit voucher dated 03.05.91, debit voucher dated 13.05.91 and credit vouchers dated 09.10.91 and 10.10.91. These documents show transfer of money to the extent of Rs. 3,01,000/ by way of cheques from the account of M/s Soflens Exports of A1 in the same branch of the bank.
50. During crossexamination of PW23, questions were raised to ascertain the possibility of the said witness revealing further facts Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 27 of 47 about the person who had opened the account in the name of Ravi Jain. The witness would not remember the residential address of Ravi Jain or as to who had introduced the said person for opening the account. He explained that officers junior to him were authorised to look after the formalities. Undoubtedly, better evidence in this regard could have been adduced. But then, the evidence brought through PW23 and PW27 cannot be brushed aside as shall be presently seen.
51.The specimen signature card Ex. PW23/2 is one of the documents which were sent for opinion to PW27. PW27, GEQD, in his report Ex. PW27/3 has opined that these signatures are in the hand of A3. The Ld. Trial Court found the opinion given by GEQD (PW27) credible and worthy of being acted upon. On that basis it was concluded that it had been established on record that A3 had impersonated as Ravi Jain to open the said account. Further conclusions naturally followed that impersonating as Ravi Jain A3 had received from the account of M/s Soflens Exports the amount of Rs. 3,01,000/, by way of two cheques dated 03.05.91 and 13.05.91 his share from the wrongful gain acquired by A1.
52. This brings one to the evidence against A2. To recapitulate, it may be mentioned here that the prosecution alleges that A2 was a taxi driver based in Moradabad who used to ferry A1 from Moradabad Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 28 of 47 and helped him around in pursuing fraudulent duty drawback claims from Customs Department in Delhi. It was alleged that A2 had opened current account no. 18048 on 24.09.91, again in the name of M/s Indoptik Exports, with the same bank i.e. Union Bank of India, Station Road, Moradabad. It was alleged that the introduction for opening this account was given by A4, wife of A1. It is further alleged that on the basis of shipping bills nos. 080088, 080108 and 0800099, all dated 07.03.91 a claim was made for duty drawback payment to be released even though the registers of warehouse of Air India at IGI Airport did not have any entry showing any such export and there was no proof of such exports having been made at all. The original shipping bills could not be traced during investigation and as in the case of all but one shipping bills concerning the two firms of A 1, the role of insiders could not be investigated. Nonetheless, the evidence about payments of duty drawback against these claims through cheque for Rs. 2,28,750/ in favour of the said firm could be established. The prosecution alleged that the said cheque was deposited in this account by A2 and subsequently the entire amount was withdrawn. It is further the case of the prosecution that through the same account transferred credit of Rs. 90,000/ by way of cheque no. 409839 dated 04.05.91 from the account of Ms. Soflens Exports Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 29 of 47 and Rs. 1,00,000/ through two different cheques dated 21.05.91 and 18.06.91, each of Rs. 50,000/ from the account of M/s Schott (India), both of A1 was also realised by A2 as his share in the booty.
53.PW25 Mr. D.K. Singh was posted as Special Assistant in the Bank in question during 199091. He proved the account opening form Ex. PW25/117, specimen signature card Ex. PW25/118 and the letter Ex. PW25/119 seeking closure of the account, all pertaining to current account no. 18048 dated 24.09.91. The evidence of this witness proves that the account was opened on the person opening the account being introduced by A4. The fact of opening this account in the name of M/s Indoptik Exports has been admitted by A2 in his statement under section 313 Cr.P.C, though adding that he did not know A4 and further claiming that A1 had obtained his signatures on the blank forms and that he had signed only as instructed.
54. The evidence of PW25 on the basis of cheques Ex. PW25/67, Ex. PW25/70 and Ex. PW25/86 proves transfer of money from the accounts of the firms A1 into this account as alleged by the prosecution.
55.The evidence of PW19 Yogesh Chand Goel, the then Accountant in the bank in question has further brought out that A2 had withdrawn through cheque Ex. PW19/7, Ex. PW19/8 and Ex. PW19/9, Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 30 of 47 amounts of Rs. 1,00,000/, Rs. 50,000/ and Rs. 25,000/ from the said current account no. 18048 opened by him in the name of M/s Indoptik Exports, introduced by A4.
56.The specimen signatures of A2 had also been taken during investigation by PW26 and sent to GEQD for comparison and opinion. The report of GEQD PW27 vide Ex. PW27/3 lends assurance to the other evidence about these documents being in the hand of A2.
57.It has been contended on behalf of A2 before the Trial Court that he was an employee of A1 who had obtained his signatures on certain blank papers and as an employee he had withdrawn, as asked by the employer, the amounts from the account at the instance of A1, which amounts so withdrawn would be taken over by A1 and, therefore, A 2 has not been a beneficiary in any manner.
58.The Ld. Trial Court was not satisfied with the explanation of A2. It took note of the fact that the account in question was opened in the name of fictitious firm by A2 around the same period when similar duty drawback claims were being received by A1 in the name of his aforementioned firms on the basis of documents, at least one of which has been located and found to be forged and there being no evidence about corresponding exports. The Trial Court also found that the Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 31 of 47 account was closed vide Ex. PW25/119 immediately thereafter. On the basis of these findings, the Trial Court concluded that A2 was acting as a party to the conspiracy with other accused persons.
59. The counsel for the defence has argued that it is inconceivable that in a department where the claims for duty draw back were subjected to checks at so many levels and at different stages, including preaudit section, false claims could have been made or resulted in orders being passed ending in remittances in the manner alleged. He submitted that, at any rate, such transactions of cheating could not have been indulged in without the connivance of the officials at different levels. He argued that since this would have undoubtedly involved acts of commission or omission on the part of public servants engaged in the said duties, there has been a cover up, in that no official has been charge sheeted. He argued that the fact that CBI could not lay its hand on any official so as to prosecute him on the charges of criminal conspiracy, at least as part to the criminal conspiracy hatched by A1, a presumption that all acts would have been done in due course of official transactions and would have been above board will have to be applied so as to give benefit of doubts to A2 and A3 who have faced the trial.
60. I do not think one can adopt such a simplistic approach as is being Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 32 of 47 convassed. It is indeed shocking and a matter of deep concern that CBI was unable to collect evidence showing complicity of any official of the duty draw back section of the Customs Department in a case of such magnitude. It is indeed a matter of even a graver concern that such cheating having been indulged under the very nose of the officials involved in the processing at various stages, almost the entire record, excepting the solitary bill referred to above, vanished virtually into thin air. The disappearance of the record cannot be but intentional and deliberate and an act achieved by an insider. This aspect required a much deeper probe, also from the perspective of the responsibility and accountability of the custodian of such record. The charge sheet does not indicate any effort worth the name undertaken by the CBI in that direction. It seems to have treated the probe qua the role of the officials merely as an administrative exercise of finding out the record, rather than a matter that necessitated use of all investigative powers including effective interrogation. Whenever individuals are involved in such cases of cheating against the Government departments, mere service of notices under Section 91 Cr.P.C. does not achieve the purpose. For digging out the material and fixing responsibility in criminal offences, effective action is what is necessary. This seems totally amiss on the part of the IO in the case Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 33 of 47 at hand.
61. But only because the charge sheet was incomplete with regard to digging out the role and responsibility of the insiders who would have been connected and would have abetted it cannot be said that the presumption of official business having been done in ordinary course or in a bonafide manner should be applied so as to extend an advantage to A2 and A3. There is other sufficient incriminating material available even in absence of such other documentary proof, and A2 and A3 owed an explanation for the same.
62. The defence counsel argued that it has not been properly proved that the document Ex. PW 1/1 bears the forged signatures of the concerned officer. He submitted that PW2 or PW8 have falsely denied their signatures on the document in question.
63. In above this context, he referred to the statement of PW2 Y.R.Kilania made on 23.10.1991 before D.R.I., as contained in the file Ex. PW 21/H in which, according to the defence counsel this witness conceded that on the first and last page, signatures appeared to be resembling his signatures, though adding that date under the signatures was not in his handwriting. Similarly, defence counsel pointed out that PW8 in his statement made on 23.10.1991 before DRI, as contained in file Ex. PW 21/H had conceded that the Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 34 of 47 signatures above the name and stamp appear to be the signatures of Superintendent Y.R.Kilania under whom he had worked. The counsel argued that above statements of PW2 and PW8 before D.R.I. were at variance from the stand taken by them during the investigation as also during the trial in the court.
64. In the State Vs. Meena Kumari 1986 Rajdhani Law Reporter 319, Hon'ble High Court made certain observations which are germane to the case at hand. They read as under: "There are two old rules of practice which never to be forgotten. The first is that the witness must be crossexamined on all parts of his testimony which it is intended to dispute. Otherwise, what the witness says in the examinationinchief must be accepted as true.:See R.V. Walter Berkley Hart, (1932) 23 Cr. App.R. 202, Karnidan Sarda Vs. Sailaja AIR 1940 Pat. 683, Jayalakshmi Vs. Jauradhan Reddy, AIR 1959, AP 272, Babulall Vs. Caltex AIR 1957 Calcutta 205 and Rama Nand Vs. The State I.L.R. 1974 HP 509. Second the attention of the witness must be drawn to any contradiction in his statement or with any previous statement, and he must be afforded an opportunity to explain. If that is not done, no argument, founded on the contradiction is permissible."
65. In above context, it only needs to be mentioned that defence during Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 35 of 47 the course of crossexamination of PW8 made no attempt whatsoever to confront him with his previous statement attributed to have been made before D.R.I. Even otherwise, that statement was neither here nor there, in that it only indicated that in the opinion of PW8 the signatures in question appeared to be in the hand of PW2 which is not the same as the said signatures were definitely that of PW2. During the crossexamination of PW2, on the other hand, he was shown the shipping bill Ex. PW 1/1 when he had stated that it did not bear his signatures. He was also not confronted with his statement before D.R.I which is now being referred. It would be unfair and improper to reach any conclusion about the credibility of PW2 in the manner which is sought to be questioned. It must be added that, even otherwise, PW2 in the statement before D.R.I. had only stated that the signatures at two places on the document appeared to be resembling his signature. He never conceded that they were signatures in his handwriting. It is one thing to say that they resemble the signatures of the person and quite another that they were indeed signatures in his handwriting.
66. In view of the law laid down in Meena Kumari (supra), even otherwise the argument cannot be accepted.
67. It was vehemently argued by the defence counsel that all the witnesses Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 36 of 47 examined by the prosecution and were included in the processing of various bills on which the charge is founded have deposed that they had verified the records before passing the same on to the next officer. It has been argued that in this view, it cannot be concluded that no export was actually made since the confirmation about the export would have definitely been made from the Cargo register. I do not think that such conclusion can be reached against the back drop of the fact that the entire relevant record has been rendered unavailable (except the one pertaining to the solitary bill as aforementioned). If there had been any exports actually made and if the impression gathered from the prosecution evidence could be dispelled by such exercise, the defence would have definitely got summoned the requisite record from the concerned Airlines or Air Cargo unit to show the exports that had been made. The prosecution having adduced sufficient evidence to demonstrate that forgeries had been committed, inter alia, by forging the signatures of PW2 and that one bill that could be traced, showing misrepresentations even to the extent of reference to R.B.I. Export Codes of entities with which the firms in question had no connection whatsoever, the burden to explain stood shifted to the defence, in discharge of which there has been virtually no endeavour made.
Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 37 of 47
68. In above view, one cannot proceed on the assumption that everything must have been in order for the bills in question to be cleared for the duty draw back payments to be allowed and remitted.
69. The counsel for the defence then argued that PW8 has admitted during his statement that DRI had investigated into his assets. The counsel submitted that this showed that PW8 was a person of doubtful integrity and thus, not a reliable witness. I do not think such a presumption can be raised about the integrity of PW8 so as to lead to questions about his credibility to appear as a witness only because there had been some inquiry made, at some stage, by D.R.I. into his assets. There could have been some substance in the argument if the inquiry into the assets of the public servant had actually resulted in some action either in the criminal court, or departmentally, against him. Since no such action is shown to have been taken at any stage, mere fact of inquiry cannot lead the defence anywhere.
70. The counsel for the defence then argued on the strength of Sukhpal Singh Vs. State [2010(2) JCC 1281 (Delhi)] and Raj Kumar @ Raju Vs. State [2010(2) JCC 1091] that opinion based on the handwriting taken during police custody was not reliable.
71. I am afraid, the facts and circumstances here are distinguishable. Both the cases cited pertain to offence under Section 302 IPC in which Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 38 of 47 one of the issues involved was as to who was the author of certain documents which were being relied upon. Though, Hon'ble Court observed in the first referred case that the specimen handwriting of the appellant in the first case having been obtained without permission of the court and without following the procedure under Section 5 of Identification of Prisoners Act, the report based thereon had to be ignored, it found sufficient evidence in the other part of the report based on other material to return findings that the prosecution had proved the questioned handwriting to be in the hand of the appellant of that case. In the other case, the question related to the specimen handwriting of a juvenile (person other than the appellant before the Hon'ble Court) against whom the case was distinct from that of the appellant Raj Kumar.
72. Be that as it may, in the case at hand the opinion of GEQD is not the only incriminating material connecting the document in question with the appellant.
73. The counsel for the defence further argued with reference to Dal Chand Vs. State [1982 CCC 278(HC)] that the charges that were framed by ACMM against A2 and A3 were deficient and misleading. He pointed out that it has been inter alia, alleged against A2 that he had also cheated the Customs Department by receiving an Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 39 of 47 amount of Rs. 2,28,750/ on the basis of three shipping bills dated 07.03.1991 in the name of M/s Indoptik Exports in which name he had opened an account. He submitted that there was no reference made to the aforesaid fact in the charge actually framed. On perusal, I find that there is indeed an omission of the above fact in the formal charge that was framed against A2 on 11.04.2001 by the ACMM.
74. It is noticed from the trial court record that charges under two heads were framed against A2. First was in respect of offence under Section 120B IPC read with Section 420 IPC which spoke about the criminal conspiracy involving A2 with three other accused persons and the second was for substantive offence under Section 420 IPC read with Section 120B IPC in which brief description of the cheating by way of 20 fictitious bills in the name of M/s Soflens Exports and 18 fictitious bills in the name of Schott (India), both of A1 were mentioned.
75. But then, the question is whether this omission is in the nature of an error which has misled the accused thereby occasioning a failure of justice within the meaning of Section 215 of Cr.P.C. as is being propagated. On perusal of the trial court record, I find the answer to be in negative.
76. The charge sheet gave full description of the allegations on which A2 Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 40 of 47 was sought to be prosecuted. The said narration included the facts as mentioned above. The copy of the charge sheet was supplied to A2 under Section 207 Cr.P.C. He, thus, came to assist the court, with a counsel duly briefed and instructed, to meet the said allegations at the stage of charge. Having heard all sides on the question of charge, the ACMM passed a detailed order on 11.04.2001. In the said order, the said facts (omission of which from the charge is now being pointed out) were duly incorporated. The evidence that was led included the evidence about these facts as well. In these circumstances, the omission in the charge as aforesaid is of no consequence. The case cited by the defence is distinguishable on facts.
77. It was then argued by the defence counsel that in the statements under Section 313 Cr.P.C., the ACMM had put too complex questions incorporating a number of facts together which had the effect of depriving to the accused an effective opportunity to understand or respond to the same. This was sought to be illustrated by referring to question nos.13 &14 in the statement of A2 and question nos. 9 & 10 in the statement of A3.
78. In above context, it may be observed that it was in fact, not even necessary for the ACMM to have adopted the procedure of question answer format for recording the statement under Section 313 Cr.P.C. Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 41 of 47 He could have complied with the requirement of law by adopting the procedure under Section 284 Cr.P.C. which is applicable to the courts of Magistrate.
79. Be that as it may, on perusal of the record, I do not think any prejudice can be alleged from the manner in which the questions have been put. I agree that distinct facts could have been the subject matter of different questions. But then, it cannot be said that the accused persons had answered the questions without properly understanding the same. The record shows each of them was assisted by the counsel duly briefed and instructed. Their answers were in the nature of denial. Each of them confirmed the correctness of the record prepared and signed the proceedings.
80. Even otherwise, it has to be remembered that omission of putting each bit of formal evidence does not or invariably always vitiates the trial. For such assumption, it has to be shown that some prejudice was actually caused by such omission. Even in a case where prejudice is being claimed, the deficiency, if any, in the statement under Section 313 Cr.P.C. can be made good by the accused offering his explanation before the appellate court as to the circumstances which he is alleging not having been put to him, or improperly put, during the trial. [ State Vs. Dharampal (Judgment Today 2001(9) SC 136]. Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 42 of 47 In this view, the appellants could have explained during the course of arguments in appeal as to what would have been their stand/version, if the questions had been put splitting each fact separately in a manner (to use the expression of the appellants) which was not "complex". They only drew a blank on this score.
81. In above facts and circumstances, the grounds of appeal are found to be devoid of merits. In my view, the learned trial Court has properly appreciated the facts and taken into consideration the evidence adduced during the trial to reach appropriate conclusions appreciating the law in proper perspective. I find the reasoning sound and thus adopt the same to affirm the conclusions reached thereupon in the impugned judgment.
82. The facts that stood proved at the end of the trial clearly shows the existence of a criminal conspiracy essentially masterminded by A1. It is true that A1 and his wife A4 would be the main beneficiaries. But the involvement of A2 and A3 in the said conspiracy is writ large, mainly against the back drop of facts that each of them had also opened separate accounts in the same bank, around the same period, each in the name of M/s Indoptik Exports, in which each of them received certain remittance through cheques issued by A1 from his account clearly indicating that he was passing on the part of the Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 43 of 47 cheated amount as their share to A2 and A3. To be specific, A3 received Rs. 3,01,000/ while A2 received amount of Rs. 1,90,000/ in this manner, besides the amount of Rs. 2,28,750/ received directly as duty draw back against three fictitious bills submitted in the name of the said firm. The fact that the said amount in the name of fictitious firm Indoptik Exports was opened by A2 on being introduced by A 4, wife of A1 itself is a circumstance connecting A2 with the said others in the criminal conspiracy. Similarly the fact that the evidence proved that the account opened by A3 as aforesaid was with he himself impersonating as Ravi Jain, besides he being the author of forgery of signatures, shows his complicity with the latter concerning at least one of the bills pertaining to A1.
83. In above view, the judgment of the learned ACMM finding A2 and A3 guilty must be affirmed.
84. Coming to the question of sentence, it has been submitted on behalf of the appellants that they have faced the agony of trial for over two decades. It has been submitted that they were not direct beneficiaries as they were only acting under the dictates of their employer A1. It was further argued that the offences were committed in the prime of youth by the appellants and there being no past criminal record, nor any other case subsequently registered, sending them to jail at this Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 44 of 47 stage will only disturb the family life in which they are now duly settled. Reliance has been placed on State Vs. Mewa Ram [1997 JCC 210, Slok Kumar Vs. State [2009(1) JCC 27] and Sishan Singh Vs. State [1997 (3) CCC 57]. Today, application has been moved by Sh. Manoj Taneja, advocate, on behalf of appellant Rakesh Rai for release on probation under Section 4 of Probation of Offenders Act, relying on Sukhmal Chand Jain Vs. State [2010(4) JCC 2742]; Ved Prakash Vs. State of Haryana [AIR 1981 SC 643]; Sita Ram Paswan Vs. State of Bihar [2005(3) AD(Cri) SC 648]; Deepak Kumar Vs. State [2005(3) AD (Cri) DHC 521]; Paul George Vs. State of NCT of Delhi [2008(2) JCC 858 DHC]; and Md. Monir Alam Vs. State of Bihar [2010(1) JCC 534 (SC)]
85. I have considered the above submissions, but find no good reasons to take any lenient view more than one already taken by the Ld. Trial Court.
86. The case law cited at bar is distinguishable on facts. It is not correct to say that the appellants have not been beneficiaries of the offence of cheating with the object of which they entered the criminal conspiracy hatched by their employer A1. As found in the course of trial and this appeal, it is clear that they also gained as they would receive Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 45 of 47 their share of the loot in the process. The delay in the trial is mainly attributable to the appellants. They, thus, cannot be given any undue benefit on that account. The argument that the offences were committed in the prime of youth does not appeal to me in the context of offence of cheating which is not a crime of passion , committed in heat of the moment, but an economic offence committed with a cool and calculated mind.
87. The offence of cheating attracts punishment in the form of imprisonment which may extend to 7 years. The learned trial Court has already been quite lenient in awarding rigorous imprisonment only for one year as the substantive sentence. In the facts and circumstances of the case when State exchequer was cheated, there is no scope for any reduction in the punishment.
88. In the result, the appeals must fail. The judgment and order on sentence are upheld. The appeals are dismissed.
89. The appellants are taken in custody and sent to jail under appropriate warrants to serve the sentences awarded against each of them, after they have been supplied copies of this judgment.
90.Trial Court record be returned with copy of this judgment.
91. An attested copy of this judgment be placed in file of Criminal appeal No.2/08 Rakesh Rai Vs. C.B.I. Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 46 of 47
92.Files of criminal appeals be consigned to record room. Announced in open Court today on this 10th day of January, 2011. ( R.K. GAUBA) Addl. Sessions Judge01 Central, Delhi.
Crl. Appeal No. 01/08 & 02/08 Pardeep Kumar Vs. CBI & Rakesh Rai Vs. CBI Page 47 of 47