Delhi District Court
Mathur Have Examined Two Witnesses In ... vs Mohamed 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. 34/12
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 Shri B.L. Mathur,
R/o Pocket A-10/74-A
Kalkaji Ext. New Delhi-19.
3. Sh. Anil Maheshwari,
S/o Sh. Sheo Prasad Maheshwari,
R/o 1716, Gali Piauwali, Dariba
Delhi.
4. Arvind Kumar Sharma,
S/o Late Shri Shambhu Nath Sharma,
R/o Janta Flat No. 17,
Opp. Dushhera Park, Jwalaheri,
Paschim Vihar,
New Delhi-63.
CBI Case No. 34/12 1 of 55
5. Vijay Dayal,
S/o Shri Padam Dayal,
R/o C-2/159, West Enclave,
Pritampura, Delhi - 34
Date of Institution of Case : 28-02-2003
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., (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 private persons/surveyors/tracers namely accused no.3, Anil Maheshwari, Prop. M/s. Supreme Industrial Corporation, 1716, Gali Piauwali, Dariba, Delhi-6, Adev Kumar Aggarwal, accused no.4, Arvind Sharma, Prop. M/s Pooja International alongwith his employees accused No. 5, Vijay Dayal and K.V. Juneja and obtained a marine cargo claim of Rs. 2,34,118/- in favour of M/s Supreme Industrial Corp. 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 CBI Case No. 34/12 2 of 55 examined from the CFSL.
1.3.1 Investigation revealed as under:-
1.3.2 Accused no.3, Anil Maheshwari of M/s Supreme Industrial Corporation, 1716, Gali Piauwali, Dariba, Delhi-6 took a marine open policy No. 4400338/98 on 20-04-1998 for Rs. 12,00,000/- for dispatch of consignment of electronic goods to anywhere in India. A claim was lodged for damage to the consignment sent by accused no.3, Anil Maheshwari, Prop.
Supreme Industrial Corporation, Delhi-6, to M/s Rajan Enterprises, Near Bus Stand, Sunam (Punjab) vide Goods Receipt (hereinafter referred to as GR) No. 541725 dt. 09-06-1998 of M/s K.R. Golden Road Carriers, 6th Milestone, Opp. Tel. Exchange, P.O. Chikambarpur, U.P. Border, Ghaziabad. An intimation for loss of consignment was given on 13-06-1998 by the consignee, M/s Rajan Enterprises, Sunam (Punjab) to NIC, Sangrur. Sh. Adev Kumar Aggarwal, 85, Gandhi Marg, Bhatinda- 151 001 was appointed as surveyor on the said intimation letter, and informed on telephone on 13-6-98 by NIC, Sangrur. Sh. Adev Kumar Aggarwal submitted his survey report on 18-06-1998.
1.3.3 The said survey report was forwarded from NIC, Sangrur vide letter dt. 20-06-1998 to NIC, DO-XIII, New Delhi which was received by accused No. 2 Moti Lal Mathur on 26-06-1998.
1.3.4 A claim form dt. 22-06-1998 was submitted by accused No. 3 Anil Maheshwari, to NIC, DO-XIII, New Delhi and a Claim file No. 351300/44/98-98/4 was opened in DO-XIII in respect of M/s Supreme Industrial Corporation. The claim note was prepared by Shri Vinod Kumar, Sr. Asstt., on the basis of papers received and given to him by accused No. 2 Moti Lal Mathur and accused No. 1 Yash Pal Babbar. The claim was CBI Case No. 34/12 3 of 55 recommended by accused No. 2 Moti Lal Mathur and approved by accused No. 1 Yash Pal Babbar for Rs. 2,34,118/- on 24-07-1998 and a claim cheque No. 601082 dt. 24-07-1998 of Rs. 2,34,118/- drawn on Indian Overseas Bank, R.K. Puram, New Delhi, Current Account of NIC, DO-XIII, New Delhi was received by accused No. 3 Anil Maheshwari. The proceeds of the claim amount were credited into Current Account No. 413301009 of the insured on 4-8-98 in Citi Bank Branch-II, Connaught Place, New Delhi. 1.3.5 M/s Pooja International (Prop. accused No. 4 Arvind Kumar Sharma), GH2/122-B, Ankur Apartment, Paschim Vihar, New Delhi-63 was appointed as investigator. He submitted investigation report dt. 13-07-1998 signed by him. A TA/DA receipt bill dt. 09-07-1998 of M/s Pooja International, vide invoice No. 796/3052, signed by K.V. Juneja was submitted to NIC, DO- XIII, New Delhi. Subsequently, M/s Pooja International was appointed as Recovery Agent by accused No. 2 Moti Lal Mathur and accused No. 1 Yash Pal Babbar. Documents for recovery were received by K.V. Juneja. A recovery amount of Rs. 9000/-, vide cheque No. 993886 dt. 03-9-1998 from A/c No. 61154 of M/s Vinayak Enterprises of Vijay Dayal drawn on SBI, Jwalaheri, was deposited in NIC, DO-XIII, New Delhi. An amount of Rs. 1,330/- vide debit voucher No. 1981 dt. 14-09-1998 was paid to the recovery agent i.e. M/s Pooja International as recovery fee. A commission bill vide invoice No. 854 dt. 31-08-1999 for Rs. 1,400/- of Pooja International signed by K.V. Juneja was submitted to the Divisional Manager, NIC, DO-XIII, New Delhi. 1.3.6 Shri S.K. Chandel, Asst. Manager, NIC, Sangrur (Punjab) has denied his signatures, on the intimation letter dt. 13-6-98 of M/s Rajan Enterprises, for deputing Sh. Adev Kumar Agarwal as Surveyor. He has also denied his signature on the forwarding letter dt. 20-06-1998 of NIC, Sangrur to CBI Case No. 34/12 4 of 55 NIC, DO-XIII, New Delhi. Neither the consignee M/s Rajan Enterprises nor the transporter M/s K.R. Golden Road Carrier existed at the given addresses during the relevant period. The survey report of Adev Kumar Agarwal was found to be fake as he has denied his signatures on the said report. The claim was processed on the basis of bogus/fake/forged documents which were fabricated by accused No. 3 Anil Maheshwari in connivance with accused No. 4 Arvind Kumar Sharma, accused No. 5 Vijay Dayal, K.V. Juneja, accused No. 2 Moti Lal Mathur and accused No. 1 Yash Pal Babbar. Accused No. 2 Moti Lal Mathur, and accused No. 1 Yash Pal Babbar, facilitated accused No. 3, Anil Maheshwari, Prop. M/s Supreme Industrial Corp. to receive an amount of Rs. 2,34,118/- from NIC, New Delhi thereby causing a loss to the tune of Rs. 2,34,118/- to NIC, New Delhi and wrongful gain to the accused persons. 1.4. On completion of investigation, a charge sheet U/s 120-B r/w sections 420, 467, 468 and 471 IPC and 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 accused No. 1, Yash Pal Babbar, accused No. 2, Moti Lal Mathur, accused No. 3, Anil Maheshwari, accused No. 4, Arvind Kumar Sharma and accused No. 5, Vijay Dayal. 1.5 It may be mentioned that as per the documents/letter heads of the insured/consignee Supreme Industrial Corporation, as available in the claim file, the name of the said consignee has been mentioned as "Supreme Industrial Corporation". Accused No. 3 Anil Maheshwari 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 Supreme Industrial Corporation". There is no dispute that any reference to "M/s Supreme Industrial Corporation " means "Supreme Industrial Corporation." Thus, the CBI Case No. 34/12 5 of 55 consignee is being hereinafter referred to as "Supreme Industrial Corporation". Same is the case with respect to "Rajan Enterprises", "K.R. Golden Road Carrier" and "Pooja International", which have been, at many places/times, referred by the parties and the witnesses as "M/s Rajan Enterprises", "M/s K.R. Golden Road Carrier" and "M/s Pooja International". 2.1 Copies of documents in terms of section 207 Cr.P.C. were supplied to the accused persons.
Charges 3.1 Vide order dt. 17-02-2004 of my Ld. Predecessor, charges were framed against the accused persons as under :-
a) against all the accused persons, u/s 120-B r/w section 420/467/468/471 IPC and 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, M.L. Mathur u/s 13 (2) r/w section 13 (1) (d) of the PC Act,
d) against accused No. 3 Anil Maheshwari u/s 420 IPC and u/s 471 r/w Section 467 IPC and 468 IPC.
e) against accused No. 4, Arvind Kumar Sharma u/s 468 IPC.
The accused persons pleaded not guilty to the charges and claimed trial. Prosecution Evidence 4.1 PW 1 Sh. K.B. Mahapatra, Chief Vigilance Officer of NIC, on whose instructions, investigation was carried out, has filed complaint, dt. 29-09-2000 with the CBI. PW 2 Sh. Akhilesh Kumar Seth, PW 3 Sh. Anil Kumar Tiwari and PW 19 Sh. Amrit Lal Gambhir, all Officers of Vigilance Department of NIC had conducted the investigation during which they had seized the files, including CBI Case No. 34/12 6 of 55 the claim files, Ex. PW2/A and Ex. PW2/B of Supreme Industrial Corporation, and given their report Ex.PW1/A. 4.2 PW 11 Sh. P.K. Aggarwal, Administrative Officer, Vigilance Department, NIC has handed over 9 marine claim files to the CBI vide seizure memo, Ex.PW11/A and certain other documents vide his letter, dt. 16-09-2002, Ex.PW11/B. PW 14 Sh. C.D. Ram, Assistant, Divisional Office- XIII, NIC has handed over disbursement vouchers to the IO vide seizure memo dt. 11-12-2002, Ex.PW14/A. 4.3 PW 4 Sh. Vinod Kumar, Senior Assistant, DO-XIII, NIC, PW 8 Sh. Anupam Rai Gupta, Senior Assistant, DO-XIII, NIC and PW 21 Smt. Parwati, Assistant, DO-XIII have testified about the claim files Ex.PW2/A and Ex.PW2/B and the signatures/handwritings of accused No. 1 Yash Pal Babbar and accused No. 2 Moti Lal Mathur on various documents in the said files viz. Notings, Ex.PW4/A and Ex.PW4/B on the inside front cover and inside back cover of the claim file, Ex.PW2/B, policy, Ex.PW4/C, Appendix XIV to the policy, Ex.PW4/D, invoice dt. 31-08-1998, Ex.PW8/1 of Pooja International, letter dt. 20-06-1998, Ex.PW8/2 of NIC, Sangrur, letter dt. 28-06-1998, Ex.PW8/3 of Supreme Industrial Corporation, investigation report dt. 13-07-1998, Ex.PW8/4 of Pooja International, voucher dt. 14-09-1998, Ex.PW8/5 regarding payment to Pooja International. 4.4 PW 5 Ms. Vandana and PW 12 Sh. R.C. Sood have generally deposed about the documentation and procedure for settlement of marine claims and deficiencies in the claim files, Ex.PW2/A and Ex.PW2/B. 4.5 PW 15 Sh. R. Vaidyanathan, Chief Manager, Indian Overseas Bank where NIC was having current accounts No. 1194 and 1197 has deposed about handing over of cheques vide letter, dt. 04-05-2002, CBI Case No. 34/12 7 of 55 Ex.PW15/A, statement of current account No. 1194 of NIC, Ex.PW15/B and cheque dt. 24-07-1998 in favour of Supreme Industrial Corporation, Ex.PW5/B. PW 22 Sh. A.S. Chauhan of State Bank of India, Jwala Heri Branch, New Delhi has deposed about letter, dt. 30-01-2002, Ex.PW22/A vide which photocopy of Account Opening Form, Ex.PW22/1 in respect of account No. 061154 of Vinayak Enterprises was sent, and the statement of account, Ex.PW22/A-1. PW 31 Sh. Rajesh Bali, Clerk of Corporation Bank, Paschim Vihar Branch, has testified about letter dt. 12-02-2002, Ex.PW31/A (colly.) of Corporation Bank vide which certified copy of the statement of account of Supreme Trading Corporation was sent to CBI and letter, dt. 08-04-2002, Ex.PW31/B (colly.) of Corporation Bank vide which certain documents were sent to CBI.
4.6 PW 9 Sh. Devender Goyal, PW 10 Sh. Kewal Chand, PW 25 Sh. Ram Pratap, PW 26 Sh. Gian Chand, PW 27 Sh. Ashwani Kumar Jain and PW 32 Sh. Amar Nath have deposed about non-existence of Rajan Enterprises.
4.7 PW 13 Sh. Dinesh Kumar Sharma, PW 17 Sh. Ashok Sehgal and PW 18 Sh. Veer Pal Singh have deposed about non-existence of K.R. Golden Road Carrier.
4.8 PW 6 Sh. Adev Kumar Aggarwal has deposed that he has not filed any survey report, Ex.PW5/D-1 and that someone has forged his signatures on the said report. PW 7 Sh. Santosh Kumar Chandel, Deputy Manager, NIC Bhatinda, deposed that they have neither received any claim intimation Mark PW 7/1 from Rajan Enterprises nor appointed any surveyor nor sent any letter, Mark PW7/2 to DO-XIII.
4.9 PW 23 Sh. Sidharth Kumar Joshi is the husband of Smt. CBI Case No. 34/12 8 of 55
Poonam Joshi who has been shown as Agent in the present case. PW 29 Sh. S.L. Garg, PW 30 Sh. B.S. Bisht and PW 33 Sh. B.M. Pandit are the part IOs and PW 28 Sh. Jyoti Kumar and PW 34 Sh. R.P. Kaushal are the main IOs. Statement of Accused Persons u/s 313 Cr.P.C.
5.1 Statement of all the accused persons were recorded u/s 313 Cr.P.C. wherein they generally denied the incriminating evidence that has come against them and stated that they had been falsely implicated in this case.
5.2 Accused No. 1 Yash Pal Babbar also stated that he has been falsely implicated due to professional rivalry and jealousy of the vigilance department officers since he had superceded Shri A.L. Gambhir and Shri A.K. Tiwari. Sh. Seth was not made Divisional Manager and he was posted as Divisional Manager in DO-XIII. He further stated that the claims were processed by his subordinates. He passed them with due care and attention, and in good faith. He had followed the prescribed and established procedure. When the claim documents were put up to him, the surveyor's report and all other documents were there in the file. He never intended to cause wrongful gain to anyone or to himself.
5.3 Accused No. 2 Moti Lal Mathur further stated that he has worked according to his conscience and has processed and recommended similar cases in identical manner with assistance of subordinate officers like Sh. Anupam Rai Gupta and Sh. Vinod Kumar and with other officers like Sh. J.N. Vats. His superior officers could have denied the claim if the same was wrongly processed and recommended. No audit objection has ever been raised with regard to his recommendation for the claim.
5.4 Accused No. 3 Anil Maheshwari further stated that he did CBI Case No. 34/12 9 of 55
nothing wrong. He only obtained insurance policy and obtained claim as per prescribed procedure.
5.5 Accused No. 4 Arvind Kumar Sharma also stated that he did nothing wrong. He conducted investigation and they effected recovery from the transporter. He did his job with due diligence and never came across any element which can be called false, forged or fabricated. 5.6 Accused No. 5 Vijay Dayal also stated that he was employed with Vinayak Enterprises and whatever work was assigned by his employer, he used to perform the same. On the instructions of his employer Sh. Sandeep Maheshwari, he opened a bank account near his ancestral shop which was being run by his brother. Accordingly a bank account in the name of his employers' firm Vinayak Enterprises was opened with SBI, Jawahaheri, Paschim Vihar, Delhi, owner of which was Sh. Sandeep Maheshwari. Sh. Arvind Kumar Sharma used to visit their ancestral shop at Jawalaheri as he was residing in the neighbourhood of their shop. He introduced the opening of said account in 1997. One day in the year 1998, he requested for a loan of Rs. 9,000/- for which he issued a cheque from his said employer's firm in which he was authorised signatory. After 7 to 8 days, he returned the said amount which he duly accounted for to his employer.
Defence Evidence 6.1 Accused No. 3 Anil Maheshwari has examined one witness i.e. DW 1 Sh. Shyam Lal in his defence who testified that he had been working as a labourer in the shop of Rajan Enterprises dealing in electrical goods at Bus Stand, Sunam from 1995 to 1998 and that the owner of Rajan Enterprises was Shri Rajan Gupta.
6.2 Accused No. 1 Yash Pal Babbar and accused No. 2 Moti Lal CBI Case No. 34/12 10 of 55
Mathur have examined two witnesses in their defence i.e. DW 2 Ms. Yamini Luthra and DW 3 Sh. Dinesh Gupta, besides themselves appearing as witnesses u/s 315 Cr.P.C. DW 2 Ms. Yamini Luthra is Administrative Officer at Regional Office, NIC, New Delhi who has deposed about destruction of record i.e. Confidential Reports of accused No. 1 Yash Pal Babbar and accused No. 2 Moti Lal Mathur and cheque dishonor register in terms of circular dt. 23-04-2013, Ex.DW2/B. She has also stated about applicability of Claims Procedural Manual, Ex.PW2/C before the New Guidelines were issued around the year 2007.
6.3 DW 3, Sh. Dinesh Gupta, Assistant Manager, DO-XIII, NIC has testified about destruction of record i.e. Claim Intimation Register and the under writing docket of the policy in terms of circular dt. 23-04-2013, Ex.DW2/B. 6.4 DW 4 Yash Pal Babbar has deposed, inter-alia, that he has sanctioned the claim within his financial powers by following all the rules and regulations of NIC and relying upon the reports of the surveyor/recovery agents/tracer for verification, documents submitted by the claimant and recommendations of his subordinate in utmost good faith. He had never met accused No. 3 Anil Maheshwari or his agent/representative in his office during the processing of the present claim.
6.5 DW 5 Moti Lal Mathur has testified, inter-alia, about procedure for settlement of marine claims and deposed that he has no role in the appointment of the verifier. He was not required to verify the Surveyor's Report, the Verifier's Report, the existence of Consignor/consignee, the consignment or the Transporter. He was only required to check whether the surveyor's report and verifier's report were in consonance with the insurance CBI Case No. 34/12 11 of 55 particulars, the premium had been collected, the claim was covered within the policy, details of packing, if any, were given and any adverse remark given by the surveyor or verifier. If the above was found in order, the claim was recommended to the Divisional Manager. If the goods are insured and claim is filed within the validity of the insurance policy, he could not reject the claim provided all the documents are in order. In the present case, the claim had been processed and recommended by Sr. Assistant Sh. Vinod Kumar, the recommendations made by him and the amount involved was within his power as per the Claim Procedural manual.
Arguments on behalf of CBI 7.1 Sh. Manoj Shukla, Ld. P.P. for CBI has argued that prosecution has been able to prove its case beyond a reasonable doubt. PW 9 Sh. Devender Goyal, PW 10 Sh. Kewal Chand, PW 25 Sh. Ram Pratap, PW 26 Sh. Gian Chand, PW 27 Sh. Ashwani Kumar Jain and PW 32 Sh. Amar Nath have proved non-existence of the consignee. PW 13 Sh. Dinesh Kumar, PW 17 Sh Ashok Sehgal, PW 18 Sh Veer Pal Singh and PW 20 Sh Mahi Pal Sharma have proved the non-existence of K.R. Golden Road Carrier. PW 6 Sh Adev Kumar Aggarwal and PW 7 Sh Santosh Kumar Chandel have proved that the surveyor's report dt. 18-6-1998,Ex. PW 5/D-1 and letter dt. 20-06-1998 were fabricated. PW 2 Sh Ashilesh Kumar Seth, PW 3 Sh Anil Kumar Tiwari and PW 19 Sh Amrit Lal Gambhir have proved the vigilance report. PW 1 Sh K.B. Mahapatra has proved the complaint Ex.PW1/B. PW 4 Sh Vinod Kumar and PW 8 Sh Anupam Rai Gupta have proved handwriting and signatures of accused No. 1 Yash Pal Babbar and accused No. 2 Moti Lal Mathur on various documents in the claim file. PW 5 Ms Vandana and PW 12 CBI Case No. 34/12 12 of 55 Sh R.C. Sood have examined the procedure for settlement of marine claims. PW 15 Sh R. Vaidyanathan, PW 22 Sh A.S. Chauhan and PW 31 Sh Rajesh Bali have proved the payment of claim amount to Supreme Industrial Corporation and the recovery amount being paid from the account of Vinayak Enterprises. PW 28 Sh Jyoti Kumar, PW 29 Sh S.L. Garg, PW 30 Sh B.S. Bisht, PW 33 Sh B.M. Pandit and PW 34 Sh R.P. Kaushal have substantiated the investigations carried out in this case. He further submits that besides direct evidence the circumstantial evidence brought on record prove that all the accused persons have 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 delay in registration of FIR, FIR could not have been registered without preliminary enquiry, 9 charge sheets could not have been filed in one FIR and that the statutory presumption u/s 20 PC Act is not applicable in the present case. He further argued that accused No. 1 Yash Pal Babbar has sanctioned the claim within his financial powers by relying upon the recommendations of his subordinates and the reports of surveyor, verifier etc. Field verification was not part of his duty. Prosecution is trying to prove documented facts by oral evidence instead of documentary evidence. He also submits that prosecution has withheld certain vital documents viz. Claim intimation register, dispatch register and surveyor appointment register of Sangrur Office of NIC and thus, an adverse inference may be drawn against the prosecution. He further argued that no audit report has ever pointed out any irregularity on the part of the said accused with respect to the claim cases. PW 2 Sh Akhilesh Kumar Seth himself stated that there was no irregularity by accused No. 1 Yash Pal Babbar or accused No. 2 Moti Lal CBI Case No. 34/12 13 of 55 Mathur. The existence of Rajan Enterprises and K.R. Golden Road Carrier are not disproved if certain witnesses do not have any knowledge of the same. Ld counsel further contends that testimonies of PW 6 Sh Adev Kumar Aggarwal and PW 7 Sh Santosh Kumar Chandel are not reliable since they are themselves accused in cheating cases and had they admitted the survey report/letter, they would have themselves been an accused in the present case. Ld. counsel has relied upon Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif, AIR 1968 (SC) 1413, J. Ramulu Vs. State of A.P., AIR 2008 SC 1505, P.K. Narayanan Vs. State of Kerala, 1995 (1) SCC 142, K.R. Purushothaman Vs. State of Kerala, 2005 Cri. L. J. 4648, Rita Handa Vs. CBI, 152 (2008) DLT 428, Anil Kumar Bose Vs. State of Bihar, AIR 1974 SC 1560, State (G.N.C.T) of Delhi Vs. Saqib Rahman @ Mansoori and Ors, 2012 VII AD (Delhi) 12, Ashok Narang Vs. State, 2012 II AD (Delhi) 481, Surendra Singh Vs. State of UP, 2010 Cri. L. J. 2258, Shranappa Mutyappa Halke Vs. State of Maharastra, AIR 1964 SC 1357, Surajit Sarkar Vs. State of West Bengal, AIR 2013 SC 807, C.K. Jaffer Sharief Vs. State (Through CBI), AIR 2013 SC 48, Subramanaian Swamy Vs. A. Raja, AIR 2012 SC 3336, S.V.L. Murthy Vs. State (Rep. By CBI Hyderabad) 2009 Laws (SC) 5-57, Sreedharan A. Vs. Dy. S.P. of Police, 2011 Laws (Ker) 4-117, C. Chenga Reddy and others Vs. State of Andhra Pradesh, AIR 1996 SC 3390, Sayeed MRO office Leeza Mandal Mahaboob Nagar Vs. State of A.P. through ACB, 2012 (2) ALD (Cri) 469 and V. Dilip Kumar Vs. State rep. by Dy. S.P. ACB/CBI Chennai, MANU/TN/0503/2012. He finally submits that prosecution has failed to prove its case against the accused beyond a reasonable doubt.
CBI Case No. 34/12 14 of 55 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 in the GR, telephone number of K.R. Golden Road Carrier has been given but there has been no investigation with regard to the said telephone from the telephone department. The author of letter, Ex.PW33/A has not been examined and thus, testimony of PW 32 Sh Amr Nath cannot be relied upon. Dispatch register, claim intimation register or surveyor appointment register of Sangrur Office of NIC has not been produced and, therefore, testimonies of PW 6 Sh Adev Kumar Aggarwal and PW 7 Sh Santosh Kumar Chandel cannot be relied upon. CBI has also not taken specimen signatures of PW 6 Sh Adev Kumar Aggarwal and PW 7 Sh Santosh Kumar Chandel who are themselves involved in cases of cheating. Deposition of witnesses who deposed about non-existence of consignee M/s Rajan Enterprises also cannot be relied upon because of the business rivalry between businessmen of the same trade. With regard to consignee also, there is no investigation regarding telephone No. mentioned on their letterhead and thus, the rule of best evidence has not been followed. From the evidence of PW 9 Sh Devender Goyal, PW 10 Sh Kewal Chand, PW 25 Sh Ram Pratap, PW 26 Sh Gian Chand and PW 27 Sh Ashwani Kumar Jain it does not follow whether there was one market or more than one market in Sunam. He also argued that accused No. 2 Moti Lal Mathur has recommended the claim based on the reports of surveyor and verifier and that no audit has ever found any irregularity in his actions. He thus, submits that prosecution has not been able to prove its case against accused No.2 Moti Lal Mathur. Arguments on behalf of Accused No. 3, Anil Maheshwari.
8.3 Sh. C.L. Gupta, counsel for accused No. 3 Anil Maheshwari
CBI Case No. 34/12 15 of 55
argued that testimonies of PW 6 Sh Adev Kumar Aggarwal and PW 7 Sh Santosh Kumar Chandel are not reliable since they are themselves accused in another case. CBI has not taken their specimen signatures/handwritings and letter head for comparison with the questioned survey report and letter and thus, on their mere oral testimony, the said documents cannot be held to be forged. He has further argued that testimonies of PW 13 Sh Dinesh Kumar Sharma, PW 17 Sh Ashok Sehgal, PW 18 Sh Veer Pal Singh and PW 20 Sh Mahi Pal Sharma regarding non-existence of the transporter K.R. Golden Road Carrier are not sufficient to prove the non-existence of the said transporter since their lack of knowledge of the transporter does not mean that the said transporter does not exist. He also argues that similarly oral testimony of PW 9 Sh Devender Goyal, PW 10 Sh Kewal Chand, PW 25 Sh Ram Pratap, PW 26 Sh Gian Chand and PW 27 Sh Ashwani Kumar Jain are not sufficient to establish that the consignee Rajan Enterprises did not exist since no record from the municipal committee or any other Govt. Body has been produced to verify the said fact. Further, the prosecution case is negated by the testimony of DW 1 Sh Shyam Lal who has deposed about working as labourer in the shop of Rajan Enterprises. Ld. Counsel further argues that even if two views are possible with regard to existence of Rajan Enterprises, the one in favour of accused should be taken. He also submits that there is no evidence to show meeting of minds of the accused persons to cheat NIC. Therefore, the said accused is entitled for acquittal. Arguments on behalf of Accused No. 4, Arvind Kumar Sharma. 8.4 Sh. R.K. Kohli, counsel for accused No. 4 Arvind Kumar Sharma has argued that the verification report, Ex.PW4/E submitted by accused No. 4 Arvind Kumar Sharma is signed by the said accused and it is not claimed that CBI Case No. 34/12 16 of 55 the same has been signed by somebody else or by the authority of somebody else. Therefore, it is not a f' alse document' as defined u/s 464 of the IPC. In the report, he has stated that he had himself met the consignor, the transporter, surveyor and visited Sangrur office of the NIC. Thus, Section 468 IPC is not attracted. He has also relied upon Md. Ibrahim & Ors. Vs. State of Bihar & Anr., 2010 Cri LJ 2223, C. Parthasarthy Vs. Bulls and Bears (Stock Brokers) Ltd., Criminal M.C. No. 4200/2002, decided on 04-01-2013 and A.S. Krishnan And Anr. Vs. State of Kerala, Appeal (Crl.) 916 of 1997, decided on 17-03-2004, to argue that since the above accused has not made or executed any document claiming to be someone else or authorized by someone else, he cannot be said to have committed forgery. He has further argued that testimony of PW6 Sh. Adev Kumar Aggarwal cannot be relied upon since he is himself an accused in a CBI Case, no investigation was done with regard to his bank account and his specimen signatures were not got compared with the signatures in question. Further, PW 6 Sh Adev Kumar Aggarwal on the one hand is saying that he has not done any investigation and simultaneously he also stated that he was having letterhead and stamp. Similarly, PW7 Sh. Santosh Kumar Chandel is also an accused in a cheating case and no dispatch register, surveyor appointment register or claim intimation register of Sangrur Office of NIC were seized to verify whether PW 7 Sh Santosh Kumar Chandel has written letter, Mark PW7/2 (Ex.PW8/2) or not. Ld. Counsel has further argued that the consignment in the present case was of industrial electrical goods whereas the witnesses examined by prosecution to prove non-existence of Rajan Enterprises are not from the same trade and thus, they cannot be relied upon. In any case, any randomly picked shopkeeper is not supposed to know all the shopkeepers of the city. He CBI Case No. 34/12 17 of 55 contends that accused No. 4 Arvind Kumar Sharma has categorically stated in his report that he has visited Rajan Enterprises but he was not asked by the CBI to take them to Rajan Enterprises. He has also argued that for the same reason, the depositions of witnesses with regard to non-existence of transporter K.R. Golden Road Carrier cannot be considered as conclusive to rule out existence of the said transporter especially when no documentary evidence with regard to occupation of the premises in question has been produced by the prosecution. It is also argued that recovery proceedings takes place after sanction of the claim i.e. after achieving the object of conspiracy, if any, and thus any act done for recovery from the transporter cannot be termed as part of the conspiracy. In the instant case, the claim was sanctioned on 24-07-1998 whereas recovery agent was appointed on 27-07-1998. Thus there is no connection between the conspiracy and recovery proceedings. Ld. counsel 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 to show that there was any mutual interest of the accused persons. There has been no evidence regarding trail of money after it was credited in the account of the claimant. Prosecution has also not been able to show as to who was the Chief propounder of the conspiracy. Ld. Counsel has relied upon Subramaniam Swamy Vs. A. Raja (supra), Inspector of Police, Tamil Nadu Vs. John CBI Case No. 34/12 18 of 55 David, 2011 Cri LJ 3366, Hanuman Govind, Nargundkar and Another Vs. State of M.P., 1953 Cri LJ 129 SC, Sharad Biridhichand Sarda Vs. State of Maharashtra, 1984 Cri LJ 1738, K.R. Purushothaman Vs. State of Kerala (supra), Rabindra Kumar Dey Vs. State of Orissa, 1977 AIR 170, S.L. Goswami Vs. State of Madhya Pradesh, 1972 AIR 716, R. Venkatakrishnan Vs. Central Bureau of Investigation, Criminal Appeal No. 76 of 2004 and State of Tamil Nadu through Superintendent of Police and CBI/SIT Vs. Nalini and 25 others, decided on 11-05-1999. He finally submits that prosecution has not been able to prove its case against the said accused.
Arguments on behalf of Accused No. 5, Vijay Dayal.
8.5 Sh. C.L. Gupta, counsel for accused No. 5 Vijay Dayal has argued that the only charge against the said accused is u/s 120-B IPC. There is no evidence that accused No. 5 Vijay Dayal has any meeting of mind with other accused persons for cheating. Accused No. 4 Arvind Kuamr Sharma has taken a loan of Rs.9,000/- from accused No. 5 Vijay Dayal which he has given in good faith and thus he cannot be held responsible for any conspiracy. Accused No. 5 Vijay Dayal was not an employee of accused No. 4 Arvind Kumar Sharma but was an employee of Sh. Sandeep Maheshwari, Proprietor of Vinayak Enterprises and he was an authorised agent of the said firm. His case is that in March 1998 accused No. 4 Arvind Kumar Sharma requested for a loan of 9,000/- and assured to return the same after a week. Since, cash was not available, he issued a cheque from his employer's firm Vinayak Enterprises, of which he was an authorised signatory. Later, when the amount was returned, the same was accounted for to his employer. It is further argued that from issuance of the insurance policy to the stage of passing the claim, CBI Case No. 34/12 19 of 55 recovery of the amount is not an essential step. The passing of the claim is not dependent on the recovery. Recovery stage comes after passing of the claim. Recovery may or may not be effected. He has no role till the passing of the claims in issue. As such, he cannot be a conspirator. There is no evidence on record that accused No. 5 Vijay Dayal misrepresented to any one or that he induced anyone to part with any property. There is no evidence that he gained anything illegally. As per evidence on record, the claim amount was paid on 24-04-1998, whereas recovery amount was deposited on 03-09-1998 i.e. much after the payment of the claim. Conspiracy, if any, came to an end with the passing of the claim. Ld. counsel has also relied upon Ashok Kumar Nayyar Vs. The State, 2007 (2) JCC 1489, Anil Maheshwari Vs. CBI, Cri. Appeal No. 1455/2012, decided by Hon'ble High Court of Delhi on 28-5-13 and Bhagirath Vs. State of Madhya Pradesh AIR 1976 SC 975. He thus sbumits that prosecution has not been able to prove its case against accused No. 5 Vijay Dayal. Ld. Counsel has also filed written submissions on the above lines.
8.6 The general propositions of law laid down in the judgments cited by the parties have not been disputed.
Points for Determination.
9.1 I have heard all the parties and have also perused the record. In the instant case, as per the charges framed, the following points are required to be determined:-
A. Charge u/s 120-B r/w Sections 420, 467, 468, 471 IPC & Section 13 (2) r/w Section 13 (1) (d) of the PC Act, against all the accused persons, namely accused No. 1, Yash Pal Babbar, accused No. 2, Moti Lal Mathur, accused No. 3, Anil Maheshwari, accused No. 4, Arvind Sharma and accused No. 5, CBI Case No. 34/12 20 of 55 Vijay Dayal.
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, accused No. 3, Anil Maheshwari, accused No. 4, Arvind Sharma and accused No. 5, Vijay Dayal 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 Supreme Industrial Corporation, Delhi under the proprietorship of accused No. 3, Anil Maheshwari to the extent of Rs.2,34,118/- on the basis of forged/bogus/false documents i.e. Invoice, G.R., survey report etc. and by using as genuine such documents, and 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, Anil Maheshwari obtained marine policy No. 4400338/98 for Rs.12,00,000/- for dispatch of consignment of electronic goods to anywhere in India and Rajan Enterprises (non existent), Sunam, Punjab reported loss of consignment to NIC, Sangrur, Punjab and Sh. Adev Kumar Aggarwal was appointed as Surveyor, survey report was forwarded from NIC, Sangrur to NIC, DO-XIII, New Delhi and accused No. 2, Moti Lal Mathur, received the forwarding letter along with survey report and recommended the claim amount and accused No. 1, Yash Pal Babbar, approved the claim amount for Rs. 2,34,118/- in favour of Supreme Industrial Corporation on the basis of false/forged documents and accused No. 3 Anil Maheshwari submitted claim CBI Case No. 34/12 21 of 55 form dt. 22-06-1998 to DO-XIII, New Delhi and received the cheque of claim amount and accused No. 4, Arvind Sharma submitted false investigation report and K.V. Juneja, employee of accused No. 4, Arvind Kumar Sharma received documents and submitted TA/DA and commission bill on behalf of Pooja International to DO-XIII, New Delhi and accused No. 5, Vijay Dayal issued cheque for Rs.9,000/- from the account of Vinayak Enterprises as recovery amount ?
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.
2,34,118/- for accused No. 3, Anil Maheshwari of Supreme Industrial Corporation 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?
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.
CBI Case No. 34/12 22 of 55
2,34,118/- for accused No. 3, Anil Maheshwari of Supreme Industrial
Corporation and caused corresponding loss to the NIC by persuading to forward and recommending the claim proposal on the basis of false/forged/bogus documents for grant of above claim which was sanctioned on his recommendation?
(iii) If so, whether accused No. 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, Anil Maheshwari
(i) Whether during the period 1998-99 at Delhi and other places, accused No. 3, Anil Maheshwari deceived NIC, DO-XIII, New Delhi?
(ii) If so, whether accused No. 3, Anil Maheshwari induced NIC, DO-XIII, New Delhi to sanction insurance claim of Rs.2,34,118/- in favour of Supreme Industrial Corporation on the basis of false/bogus/forged documents i.e. invoice, survey report, GR etc. ?
(iii) If so, whether accused No.3, Anil Maheshwari had induced NIC, DO-XIII, New Delhi as above dishonestly?
(iv) If so, whether accused No. 3, Anil Maheshwari received the cheque of claim amount which was credited in account of Supreme Industrial Corporation of which, he was the Proprietor?
E. Charge u/s 471 r/w section 467 & 468 IPC against accused No. 3, Anil Maheshwari.
(i) Whether during the period 1998-99 at Delhi and other places, accused No. 3, Anil Maheshwari used false/forged/bogus documents i.e. invoice, GR, Survey Report etc., as genuine for inducing NIC, DO-XIII, New Delhi to CBI Case No. 34/12 23 of 55 sanction insurance claim of Rs.2,34,118/- in favour of Supreme Industrial Corporation of which he was the Proprietor?
(ii) If so, whether he had used the aforesaid documents as genuine knowing or having reason to believe the same to be forged?
(iii) If so, whether he did so fraudulently or dishonestly?
F. Charge u/s 468 IPC against accused No. 4, Arvind Kumar Sharma.
(i) Whether during the period 1998-99 at Delhi and other places, accused No. 4, Arvind Kumar Sharma, being Proprietor of Pooja International, was appointed as Investigator/Recovery Agent, in the claim of Supreme Industrial Corporation ?
(ii) If so, whether accused No. 4, Arvind Kumar Sharma committed forgery by submitting a bogus report to NIC, DO-XIII, New Delhi without investigating the matter?
(iii) If so, whether accused No. 4, Arvind Kumar Sharma intended that the aforesaid forged document i.e. bogus report shall be used for the purpose of cheating NIC?
10.1 It is pertinent to refer to Sec. 3 of the Indian Evidence Act, 1872 (hereinafter called as 'IEA') which defines the term 'proved' and d' isproved' as under :-
" ' Proved'- A fact is said to be proved when, after considering the matters 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 CBI Case No. 34/12 24 of 55 its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist."
10.2 It is well settled that the word 'proof' means anything which serves, either immediately or mediately to convince the mind of the truth or falsehood of a fact or proposition; and the proofs of matters of fact in general are our senses, the testimony of witnesses, documents and the like. " Proof"
does not mean proof to rigid mathematical demonstration, because that is impossible; it means such evidence as would induce a reasonable man to come to the conclusion (vide Emperor v/s Shafi Ahmed, (1925) 31 Bom. LR 515]. Further, Sec. 134 of IEA stipulates that no particular number of witnesses shall in any case be required for the proof of any fact.
10.3 In human affairs, everything cannot be proved with mathematical certainty and the law does not require it. Legal proof is something different from moral certainty about the guilt of an accused person. Suspicion, however, great, cannot take the place of legal proof. A moral conviction, however strong or genuine, cannot amount to a legal conviction supportable in law. The well known rule of criminal justice is that " fouler the crim e, higher the proof." [vide Sharad Birdhichand v. State of Maharashtra, (surpa)].
10.4 In criminal matters, the prosecution is required to prove its case beyond a reasonable doubt. A benefit of doubt is the condition of the mind which exists where the judges cannot say that they feel an abiding condition, a 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) CBI Case No. 34/12 25 of 55 10.5 It is well settled that the burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.
10.6 However, the rule in section 106 of the Act would apply when the facts are 'especially within the knowledge of the accused' and it would be impossible or at any rate disproportionately difficult for the prosecution to establish such facts which are 'especially within the knowledge of the accused'. The prosecution is not required to eliminate all possible defences or circumstances which may exonerate him. If certain facts are in the knowledge of the accused then he has to prove them. Of course the prosecution has to prove prima facie case in the first instance. In this regard reference can be made to Murlidhar v. State of Rajasthan, AIR 2005 SC 2345, State of Punjab v. Karnail Singh, (2003) 11 SCC 271, Trimukh Maroti Kirkan v. State of Maharashtra, 2007 Cr LJ 20 (SC), Santosh Kumar Singh v. State, (2010) 9 SCC 747 and Ram Singh v. State, 2011 Cr LJ 618 (Raj.), AIR 1959 SC 1390, AIR 1937 Rang 83, 1968 Cri LJ 848, AIR 1967 Mys 79 and 1964 (1) Cri LJ 688.
10. 7 Criminal conspiracy is often hatched in secrecy and for proving the offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence. However, it cannot be deemed to have been established on mere suspicion 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 CBI Case No. 34/12 26 of 55 hypothesis except that the accused is guilty. However, on the basis of evidence led by prosecution, if two views are possible, one pointing to the guilt of the accused and other to his innocence, the one in favour of the accused must be accepted. In this regard, reference can be made to Saju Vs. State of Kerala, (2001) 1 SCC 378, Sherimon Vs. State of Kerala, (2011) 10 SCC 768, P.K. Narayanan Vs. State of Kerala, (1995) 1 SCC 142, State of M.P. V Sheetla Sahai, 2009, Cr. LJ 4436, Shivaji Saheb Rao Bobde v. State of Maharashtra, AIR 1973 SC 2622, Harendra Narain Singh v. State of Bihar, AIR 1991 SC 1842 and Baboo Ram, v. State, 1996 Cri LJ 483.
10.8 The essence of conspiracy is unlawful combination and the complicity of the accused has to be decided after considering all the circumstances proved, before, during and after occurrence. Agreement between the conspirators may also be proved by necessary implication. It is not necessary that each member of a conspiracy must know all the details of the conspiracy. Facts established should be consistent only with the hypothesis of guilt of the accused. It does not mean that each and every hypothesis suggested by accused must be excluded by proved facts. In this regard reference can be made to Chaman Lal Vs. State of Punjab, AIR 2009 SC 2972, R.K. Dalmia V The Delhi Administration, AIR 1962 SC 1821, Muriappan Vs. State of Tamil Nadu, AIR 2010 SC 3718 and Firozuddin Basheeruddin Vs. State of Kerala, (2001) 7 SCC 596.
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 CBI Case No. 34/12 27 of 55 offence which such answers may tend to show he has committed. It is well settled that admission or confession of the accused in the statement under section 313, Cr PC in the course of trial can be acted upon and the court can rely on these confessions to proceed to convict him. In this regard reference can be made to Dharnidhar v. State of Uttar Pradesh, (2010) 7 SCC 759 and State of Maharashtra v. Sukhdev Singh, AIR 1992 SC 2100.
10.10 It is also well settled that evidence of one accused or admission or action or statement made by one of the accused can be used as evidence against the other by virtue of Section 10 of the Indian Evidence Act. In this regard reference can be made to Tribhuvan Nath Vs. State of Maharashtra, AIR 1973 SC 450 and Kehar Singh v State, AIR 1988 SC 1883. 10.11 Both the parties have relied upon Claims Procedural Manual, which was admittedly applicable at the relevant time. The said manual, while laying down the procedure for processing and settlement of marine claims provides that the procedures laid down in the Manual are not exhaustive and are of general nature. It further provides that in some cases, the requirements laid down in the Manual could not be in practice complied with due to particular circumstances applicable to the individual case and such non compliance should not therefore, make the claim as not payable and the claim settling authority is to use his discretion by recording his reasons in detail. 10.12 It is in the light of the above position of law that evidence is to be 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 CBI Case No. 34/12 28 of 55 facts :-
(a) During the years 1998-99, accused No.1 Yash Pal Babbar was a public servant i.e Assistant Manager, NIC, DO-XIII, New Delhi,
(b) During the years 1998-99, accused No. 2 Moti Lal Mathur was a public servant i.e. Administrative Officer, NIC. DO-XIII, New Delhi,
(c) Accused No. 3 Anil Maheshwari, Prop. of Supreme Industrial Corporation, obtained marine policy No. 4400338/98 on 20-04-1998 for Rs.12 lacs for dispatch of consignment of electronic goods to anywhere in India,
(d) Accused No. 3 Anil Maheshwari submitted claim form dt. 22-06-1998 in NIC, DO-XIII, New Delhi, regarding damage to the purported consignment sent by him to Rajan Enterprises, Near Bus Stand, Sunam, Punjab, vide GR No.541725 dt. 09-06-1998 of K. R. Golden Road Carriers, 6th Milestone, opposite Telephone Exchange, P. O. Chikamberpur, U.P. Border, Ghaziabad,
(e) Claim note was prepared by Sh. Vinod, recommended by accused No. 2 Moti Lal Mathur and sanctioned by accused No. 1 Yash Pal Babbar for Rs.2,34,118/- on 24-07-1998, inter-alia, on the basis of purported documents viz; letter dt. 20-06-1998 of NIC, Sangrur, report dt. 18-06-1998 of Sh. Adev Kumar Aggarwal and claim intimation letter dt. 13-06-1998 of Rajan Enterprises addressed to NIC, Sangrur,
(f) Claim amount was paid to accused No. 3 Anil Maheshwari vide cheque No. 601082 dt. 24-07-1998 drawn on Indian Overseas Bank, R.K. Puram, New Delhi, which was received by the said accused and proceeds thereof were credited into his current account No. 413301009 on 04-08-1998 in Citi Bank Branch II, Connaught Place, New Delhi,
(g) Accused No. 4 Arvind Kumar Sharma was appointed investigator,
(h) Accused No. 4 Arvind Kumar Sharma submitted report dt. 13-07-1998, CBI Case No. 34/12 29 of 55 Ex.PW4/E,
(i) Accused No. 4 Arvind Kumar Sharma submitted bill dt. 09-07-1998,
(j) Accused No. 4 Arvind Kumar Sharma was appointed recovery agent,
(k) Commission bill, vide invoice No. 854 dt. 31-08-99, for Rs.1,400/- was submitted by accused No. 4 Arvind Kumar Sharma of Pooja International to Divisional Manager, NIC, DO-XIII,
(l) An amount of Rs.9,000/- purported to be the recovery amount was deposited vide cheque No. 99388, dt. 03-09-1998 from Account No. 61154 of Vinayak Enterprises of accused No. 5 Vijay Dayal at State Bank of India, Jwala Heri and the receipt dt. 03-09-1998, placed at page no. 25 of the claim file, Ex. PW 2/B, shows the same to have been received from M/s Supreme Industrial Corporation.
(m) An amount of Rs.1,330/- was paid as recovery fee to Pooja International vide debit voucher No. 1981, dt. 14-09-1998.
Facts in Dispute 12.1 However, the following facts are in dispute:-
(a) Rajan Enterprises did not exist at its given address,
(b) K.R. Golden Road Carrier did not exist at its given address,
(c) No consignment of electronic goods was sent by Supreme Industrial Corporation, Delhi to Rajan Enterprises, Sunam, vide goods receipt No. 541725 dt. 09-06-1998, through K.R. Golden Road Carrier,
(d) No claim intimation was sent by Rajan Enterprises to NIC, Sangrur, and the letter Mark PW 7/1 was forged, no surveyor was appointed by Sangrur Divisional Office of NIC and the marine survey report dt. 18-06-1998, Ex.PW5/D-1 was forged, and no letter dt. 20-06-1998 was sent by Divisional Office, Sangrur, NIC to NIC, DO-XIII, New Delhi and the letter, Ex.PW8/2 was CBI Case No. 34/12 30 of 55 forged,
(e) In his report, Ex.PW4/E accused no.4 Arvind Kumar Sharma falsely stated, inter-alia, about his visiting and contacting the consignor Supreme Industrial Corporation, K.R. Golden Road Carrier at Delhi, Rajan Enterprises, Sunam, Sh. Adev Kumar Aggarwal and Divisional Office, NIC at Sangrur, and that the insured had suffered a loss to the tune of Rs.2,63,383.85.
Appreciation of Evidence 13.1 The main fact in issue in this case is whether there was any loss of consignment of electronic goods purportedly sent by Supreme Industrial Corporation, Delhi to Rajan Enterprises, Sunam (Punjab) through K.R. Golden Road Carriers, Chikambarpur, Delhi-UP Border, Ghaziabad, as covered by the insurance policy. The essential parts/components of the purported loss of consignment are existence of Supreme Industrial Corporation, Delhi, existence of Rajan Enterprises, Sunam (Punjab), existence of K.R. Golden Road Carriers, Chikambarpur, Delhi-UP Border, Ghaziabad, sending of the consignment of electronic goods and loss/damage of 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 CBI Case No. 34/12 31 of 55 of DO-XIII from whose custody, the said files/record were seized for the first time has neither been specified nor examined by the prosecution to prove that complete record with respect to the claim in question was seized, or that the record produced in the court was the complete record, as available in DO-XIII at the time of sanction of the claim. Further, no inventory of the documents available in the claim files was prepared, and the record seized was also not sealed either at the time of their seizure by the officers of Regional Office of NIC or by the IO. Thus, no sanctity of preservation of documents seized was maintained. Therefore, the above contention of Ld. PP is not tenable. In this regard, a reference can also be made to the judgment dated 28-05-2013 of the Hon'ble High Court of Delhi in Crl. Appeal No.1455/2012, Anil Maheshwari v/s CBI.
Non-existence of Rajan Enterprises 13.3 It is pertinent to note that in the photocopy of the letter dt. 13-06-1998, Mark PW 7/1, on the letter head of Rajan Enterprises, the address given is " Near Bus Stand, SUNAM (Pb)" and one telep hone number is given as " 45123" . PW 32 Sh. Amar Nath, Excise & Taxation O fficer, Sunam has deposed about the letter dt. 30-04-2002 Ex.PW 33/A (sic Ex.PW32/A), written by Sh. Baljeet Singh, Excise & Taxation Officer, Ward No. 3, Sunam to Insp. B.M. Pandit of CBI and identified signatures of Sh. Baljeet Singh at point A on the said letter. In the said letter, it is stated that no such firm, Rajan Enterprises Sunam is registered in the circle of Sunam ward No. 3 for the year 1998 onwards. During his cross-examination, PW32 deposed that Sh. Baljeet Singh was still working in the department as Excise & Taxation Officer. The summons have been received by him in the name of his designation i.e. CBI Case No. 34/12 32 of 55 Excise & Taxation Officer. He denied the suggestion that Sh. Baljeet Singh had not been sent since they wanted to hide the truth from the Court. He further deposed that in case of trader, if somebody purchases goods from outside Punjab for his own consumption and not for trading, the registration is not required. If somebody purchases goods from outside Punjab for the purpose of trade or for use in manufacturing process, registration is mandatory irrespective of value thereof.
13.4 It is well settled that handwriting/signature of a person can be proved by evidence of a person acquainted with such handwriting. Further, the letter written by Sh. Baljeet Singh is an official act which can be presumed to have been regularly performed. It may be seen that on the letter head of Rajan Enterprises, Ex.PW7/1, sale tax number or excise tax number is not given. Further, no question has been asked or suggestion put to the witness that Rajan Enterprises was registered in the circle Sunam ward No. 3 during the relevant period. As per the invoice, Rajan Enterprises had purchased goods worth Rs. 3,89,516.50/- from Supreme Industrial Corporation, Delhi i.e from outside Punjab. Admittedly, the goods shown to have been purchased are industrial goods and cannot be said to have been purchased for personal consumption. Thus, if the version of accused no. 3 Anil Maheshwari regarding existence of Rajan Enterprises is to be believed, it ought to have been registered with the Sales Tax authorities. Non registration of Rajan Enterprises with the Sales Tax Authorities raises doubt about its existence. 13.5 Further, PW 9 Sh. Devender Goyal has testified that he is selling televisions, refrigerators, coolers, fans and electrical goods at Naya Bazar, Main Bazar, Sunam since the year 1995. In the year, 1998, he had not had any dealings with any firm by the name of Rajan Enterprises, Sunam. From CBI Case No. 34/12 33 of 55 1995 till date, he had never seen or heard of any firm by the name of Rajan Enterprises at Sunam. He deals in electronic goods. During his cross- examination, he stated that he has heard the name of Rajan Enterprises for the first time during his testimony. He further stated that he deals in household electrical goods but refrigerators are also used in industries. He know almost all the main electronic dealers at Sunam Bus Stand. There are several Bazars at Sunam and there is a bus market at the Sunam Bus Stand. He further stated that it was possible that he does not know all the electronic dealers at Sunam i.e. if they have opened small shops he may not know them. To his knowledge, there was no firm by the name of Rajan Enterprises in the year 1998 at the Bus Stand Market at Sunam.
13.6 PW 25 Sh. Ram Pratap has deposed that he was in the business of electronics since 1980 in the name and style of M/s Ram Pratap & Sons, near Main Post Office, Sunam. As per his knowledge, in the year 1998, no firm in the name and style of Rajan Enterprises dealing in electronic goods was in existence in his vicinity in Sunam. During his cross-examination, he stated that there are several bazars in Sunam. There is one main bazar where he has a shop, another bazar is known as Cinema Road Bazar, Bus Stand Road Bazar and one Mata Moti Road Bazar. He has no knowledge if there is any trader's association since he was not member of any association. He admitted that if any businessman is doing any work in the name of Rajan Enterprises, he may not be having knowledge of the same. 13.7 PW 26 Sh. Gian Chand deposed that he has been running a watch shop under the name and style of M/s Gupta Watch House at Gita Bhawan Road, Sunam since 1990. No electronics company in the name and style of Rajan Enterprises, Sunam was in existence during the year 1998 or CBI Case No. 34/12 34 of 55 even today. He had not heard of any such company dealing in electronics in the year 1998. During his cross-examination, he stated that there are two bazaars in Sunam, there is no trader's association, there is only one transport bus stand in Sunam. Mostly all the shopkeepers display their name boards outside the shops, he could not say if people are doing more than one business from the same shop, mostly he know all the shopkeepers and businessmen at Sunam, he cannot say if any businessman was doing business in the name of Rajan Enterprises and he has not heard about the same. He further stated that he was not dealing in electronics, he knew every shopkeeper who deals in electronics as the city is very small. On being asked to name four shops dealing in electronics in Sunam, he stated, Goodwill Enterprises, Electro Point Electronics, Bombay Opticals (dealing in refrigerators and televisions) and Goyal Electronics. Though he admitted that the said shops sell household electronic goods and not the industrial electronics or electric goods, he volunteered to state that there was no shop in Sunam which deals in industrial electronic goods and that all the shops selling electrical and electronic goods, goods are brought from Sangrur. 13.8 PW 27 Sh. Ashwani Kumar Jain testified that he had been dealing in electronic goods under the name and style of M/s Jain Electronics at Gita Bhawan Road, Sunam since 1997. He has not heard or seen any electronic company in the name and style of Rajan Enterprises, Sunam during the year 1998 and even today he had not heard of any such company. During his cross-examination, he stated that there are 3-4 bazars in Sunam. There are trader's association but there is no trader's association deali ng in electronic goods in Sunam. There is only one bus stand in Sunam. His shop is at the distance from 150 to 200 yards from the bus stand. Mostly all the CBI Case No. 34/12 35 of 55 shopkeepers display their name boards outside the shop. He does not know all the shopkeepers of the market of Sunam. He deals in household electronics. As far as his knowledge goes there is no shop in Sunam selling industrial, electrical and electronic articles. As per his knowledge there was no office in Sunam which used to deal in industrial electrocnics or electrical goods.
13.9 The testimonies of above witnesses are natural and have gone unimpeached. They were likely to know about the existence of Rajan Enterprises if it so existed. Had accused No. 3 Anil Maheshwari entered into any business transaction with Rajan Enterprises, he would have known about its owner or manager. However, no question has been put or suggestion given to the above witnesses regarding the owner or the person managing the said shop or any landmark near the said shop. There is no reason that they would depose falsely. Thus there is no reason to disbelieve them. 13.10 PW 10, Sh. Kewal Chand, Postman at Sunam since 1983, deposed that he distributes the dak in New Anaj Mandi, Ram Nagar, Indra Basti and the industrial area. In the area in which he distribute posts, there is no firm by the name of Rajan Enterprises at Sunam nor there was any such firm in the year 1998. He also stated that Naya Bazar does not fall within his jurisdiction. To a court query, he stated that he had never delivered dak in the area of Naya Bazar, Sunam from 1983 till date.
13.11 Further, PW 33 B.M. Pandit, Inspector CBI, deposed that on 30-04-2002, he had gone to Sunam for inquiring about the existence or otherwise of Rajan Enterprises purportedly dealing in electronic goods. He made inquiries from number of persons, dealing with electronic goods and came to know that no such company was in existence. He made inquiries CBI Case No. 34/12 36 of 55 from 4-5 persons and recorded their statements. He also inquired from the postman of the area and recorded his statement.
13.12 DW 1 Sh. Shyam Lal , examined by accused no.3 Anil Maheshwari deposed that he was living in Sunam since birth, he was working as a labourer, he know Rajan Enterprises, dealing in electrical goods, their shop is at Bus Stand, Sunam, he has worked as a labourer in that shop from 1995 to 1998, the owner of that Rajan Enterprises was Rajan Gupta, the shop was in existence from 1995 to 1998 and that he does not know the present whereabouts of the said shop or its owner. During cross examination, DW 1 Sh Shyam Lal stated that he does not know as to how many owners were there of Rajan Enterprises, he does not know whether the said shop was registered with Sales Tax Office or not, he does not know whether Rajan Enterprises was having any bank account or not, there was no manager in the said shop, he does not know who was sitting in the shop, he used to be outside the shop for carrying the goods, he cannot tell the name of anybody who use to manage the shop, there are many other shops dealing in electrical goods in the said locality, however, he cannot tell the name of any such shop, he cannot tell about the physical appearance of Sh. Rajan Gupta and he cannot tell about his age. The testimony of DW 1 Sh Shyam Lal, who could not tell anything about anybody connected with Rajan Enterprises, where he has worked for 3 years, does not inspire any confidence and thus does not make any dent in the prosecution evidence in this regard. 13.13 The mere fact that there has been no investigation regarding the telephone nomber does not negate the other prosecution evidence since it is the existence and actual working of Rajan Enterprises on ground which is material. The determinative factor is the evidence as to whether the business CBI Case No. 34/12 37 of 55 concern existed on ground and whether it was actually doing business or not. The allegations are to this effect only that the existence of Rajan Enterprises was shown on record by accused No. 3 Anil Maheshwari whereas it did not exist on ground at its given address. The testimonies, of PW 9, Sh. Devender Goyal, PW 10, Sh. Kewal Chand, PW 25, Sh. Ram Pratap, PW 26, Sh. Gian Chand, PW 27, Sh. Ashwani Kumar Jain, PW 32, Sh. Amar Nath and PW 33, Sh. B.M. Pandit when seen together with evidence, as discussed later, that no letter dt. 13-06-1998 of Rajan Enterprises was received by NIC, Sangrur, lead to the inference that Rajan Enterprises did not exist at the given address.
Non-existence of K.R. Golden Road Carriers 13.14 It is pertinent to note that in the photocopy of GR Ex.PW 6/B of K. R. Golden Road Carriers, placed at page 6 of the claim file, address of its Registered office has been given as " 6 th Milestone, opposite Telephone Exchange, P. O. Chikamberpur, U.P. Border, Ghaziabad" and telephone number is given as " 624296" . PW 13, Sh. Dinesh Kumar Sharma, who was delivering dak to the transporters situated in the area at Chikambarpur from December 1988, testified that he has never served dak, to K.R. Golden Road Carriers as he had never come across the said transporter as it was not existing at the given address. During his cross-examination, he deposed that his area of delivery assignment comprises from Chikambarpur Telephone Exchange, 6 Milestone, Rawalpindi Garden, Jawahar Park, Shaheed Nagar. He further stated that one more postman was posted for delivery of dak in the said area. He admitted that the basis of his conclusion that the firm did not exist at the stated address was that he never received any dak for delivery to CBI Case No. 34/12 38 of 55 the said firm. He also admitted that Chakambarpur is very haphazardly constructed and several offices are known to the resident in one building at many places in the entire area.
13.15 PW 17, Sh. Ashok Sehgal who was doing business under the name and style of M/s Assam Golden Transport Corpn, Opposite OBC, Near Telephone Exchange, 6th Milestone, Chikamabarpur UP Border, Ghaziabad, UP deposed that he used to know about the transporters who were his neighbours but he did not know the entire transporters in the area. Mostly he knew the transporters near the Telephone Exchange. As per his knowledge, K.R. Golden Road Carriers was not in existence at 6th milestone, opposite Telephone Exchange, Post Office, Chikambarpur UP Border, Ghaziabad. During his cross-examination, he stated that Chikambarpur is an unauthorized area and there is no systematic inhabitation. The construction in the area is not as per the sanctioned plan and it is in the haphazard manner. In some plots there are various rooms and each room is occupied by separate transporters. Mostly all the transporters have affixed their signboards. There was a trade association of transporters in the area. The basis of his saying that the above said transporter was not existing at the said addresses was his personal knowledge about the area and the transporters working there and they used to have interaction on different occasions. He admitted that the said transporter was not within his vicinity and therefore not in his knowledge and it may be possible that it may be operating from interior which may not be in his knowledge.
13.16 PW 18, Sh. Veer Pal Singh, working as Manager since 1997 in the firm M/s Okara Roadways, 6 Milestone, Post office Chikambarpur, CBI Case No. 34/12 39 of 55 Ghaziabad, UP, deposed that he was aware of the transporters within the vicinity of his office. He was not aware of K.R. Golden Road Carriers if working near the vicinity of his office. He has not seen their signboard. During his cross-examination, he stated that there may be 800 to 1000 transporters in the said area. It is an unauthorized area constructed in disorganized way. In one compound, there were 4 to 5 offices and there are various offices in separate building. Many of the transporters have their sign boards and some of them may not have their signboards affixed on the building. It was possible that they may not have dealt with the particular transporters in the area and for that reason he may not be aware of the same.
13.17 PW 19 Sh. Amrit lal Gambhir also testified that he went to 6th Milestone, opposite Telephone Exchange, P. O. Chikamberpur, U.P. Border but K. R. Golden Carrier was not found there. During cross examination, he stated that 6th Milestone, Chikambarpur is an area nearly one km long. The area is huge area and there were number of transporters. He cannot say if the area is disorganized/unauthorised constructed area. He admitted that several hundred transporters were having their offices in that area. He went to the area and made random enquiries from 7-8 transporters and none told him that they had ever heard about K.R. Golden Transport. He searched the entire Naya Bazar area but he did not find K.R. Golden Transport. He made some random enquiries. On the basis of his personal enquiry, he came to the conclusion that the booking office of K.R. Golden Transport do not exist either in Naya Bazar area or at 6 Milestone Chikambarpur, Ghaziabad, U.P. 13.18 PW 20 ,Sh. Mahi Pal Sharma who was posted at Police Chowki CBI Case No. 34/12 40 of 55 Seema, PS Sahibababd, Distt. Ghaziabad, UP in the year 2001 stated that he had never heard of the transporter in the name of K.R. Golden Road Carriers and they were not in existence in the Chikambarpur area. However, during his cross-examination, he stated that he has no knowledge about the transporters in the area of Chikambarpur in the year 1997, 1998 1999.
13.19 The testimonies of the above witnesses are natural and have gone unimpeached. PW 13 Dinesh Kumar Sharma being postman of the area and PW 17 Sh. Ashok Sehgal and PW 18 Sh. Veer Pal Singh being in the same business in Chikambarpur were likely to know about the existence of K. R. Golden Road Carriers, in the normal course of business, if it so existed. No question has been put or suggestion given to the above witnesses regarding the owner or the person managing the said transport office or any landmark near the same. There is no reason that they would depose falsely. Thus there is no reason to disbelieve them. From the above evidence, it appears that K.R. Golden Road Carriers did not exist at its given address. This is also corroborated by the fact, that the amount deposited by accused No. 4 Arvind Kumar Sharma as recovery amount was not recovered from K.R. Golden Road Carriers, but was from account No. 61154 of Vinayak Enterprises at SBI, Jwalaheri and the receipt dt. 03-09-98, placed at page no. 25 of the claim file Ex. PW 2/B show the said amount to have been received from M/s Supreme Industrial Corporation.
No Survey and No Role of NIC, DO Sangrur 13.20 PW 6 Sh Adev Kumar Aggarwal has testified that in 1998, he was having a shop at Amreek Singh Road, Bhatinda, where he used to sell paints. He was having a surveyor's license with him which was valid upto May 1998.
CBI Case No. 34/12 41 of 55 He was empaneled with Oriental Insurance Co. Ltd. He had not worked at all as a surveyor. He had not filed any survey report in any insurance company. Ex. PW5/D-1 (Survey Report dt. 18-06-1998) was not submitted by him nor it bears his stamp and signatures. Someone had forged his signatures on Ex.PW5/D-1. He further deposed that Ex.PW5/D-1 bears phone No., probably of Sh. D.K. Garg, D.K. Garg was on visiting terms at his residence since his father was employed in New India Insurance Company. Letter head on which report, Ex.PW5/D-1 is written does not pertain to him. Receipt, Mark X1 was not issued by him nor it bears his signatures. During his cross- examination on behalf of accused no.1 Yash Pal Babbar, he admitted that he was an accused in a case filed by CBI which is pending before the court of Sh. S.P. Garg., Spl. Judge, New Delhi. (Now Hon'ble Judge High Court of Delhi) In that case, 3 forged reports are there which do not belong to him. He does not recollect whether his specimen writing and signatures were taken by CBI for comparison. Neither he had given copy of his bank account statements nor CBI asked for it to ascertain whether he obtained any fees for survey report from any insurance company. He does not recollect whether copy of his letter head and print of his stamp was obtained by CBI for comparison. He was having a letter head in his name. He had not got prepared any stamp in his name. He denied the suggestion that stamp and signatures on Ex.PW5/D-1 were authentic. No other accused has cross examined this witness.
13.21 It is pertinent to note that in the purported Survey Report, EX. PW 5/D-1, it is stated that the Surveyor accompanied by the representative of the insured, called at the premises of Tpt. Co. at Sunam. It is also stated that he discussed the subject with the Consignor's representative. Thus accused CBI Case No. 34/12 42 of 55 no.3 Anil Maheshwari would have known about the survey if it was actually conducted. However, no cross examination of this witness was done on behalf of accused no.3 Anil Maheshwari. Had the representative of accused no.3 Anil Maheshwari, i.e. the Insured and the Consignor accompanied this witness during any survey, he would have cross examined him on the same. The testimony of this witness has thus gone unrebutted. The mere fact that he is also an accused in a similar matter does not warrant rejection of his deposition.
13.22 PW 7, Sh. Santosh Kumar Chandel, who was posted as Asstt. Manager in Sangrur DO of NIC from August/Sept. 1996 till July 2003 testified that he was looking after technical claims. He used to receive intimation regarding claims, appoint surveyors, process claim reports, and send papers to the concerned divisional office. Mark PW 7/1(purported letter dt. 13-6-1998 of Rajan Enterprises) was neither received in their office nor it was processed there nor it bears the signatures of any of the officer posted there. Mark PW 7/2 (purported letter dt. 20-6-1998 of Divisional Office, Sangrur which is also Ex.PW8/2) does not bear his signatures and was not written from his office. It is a bogus letter. Mark X1 (purported receipt dt. 18-6-98) and Ex.PW5/D-1(Survey Report dt. 18-06-98) were not sent from their office along with Mark PW 7/2. No surveyor was appointed from their office concerning Mark PW7/1 and Mark PW 7/2. During his cross-examination on behalf of accused no.2 Moti Lal Mathur, he stated that they maintain a record concerning appointment of surveyors in claims. He is an accused in a cheating case before this court, filed by CBI. He denied that he had deposed false facts at the instance of CBI, since he is an accused in one of the case. He denied that mark PW7/1 and Mark PW7/2 bears his signatures and these CBI Case No. 34/12 43 of 55 documents pertain to their office. During cross examination on behalf of accused no.3 Anil Maheshwari, he stated that Jaswant Singh, he and Divisional Manager were authorised to sign claim intimation. During cross examination on behalf of remaining accused persons, he stated that Sh Adev Kumar Aggarwal was not empaneled as a surveyor for marine claim in Sangrur Office. He does not remember at this juncture whether he was empaneled for other claims or not. He denied that their claims were also there for remote areas and they used to get service from other divisions. There were no guidelines requiring an officer to go to the office of service providing division and to verify as to whether the report is correct or not. He cannot confirm (sic whether) stationery used for Mark PW 7/2 pertains to their office or not. Letter head of Mark PW7/2 seems to be similar as were being used by their office. The testimony of this witness has also gone unrebutted and unimpeached. His testimony also cannot be rejected only on the ground that he is also an accused in some other case.
13.23 It is well settled that if any marine claim is admitted by the insurance company, recovery, if any, is to be made from the carrier/transporter. In this case there is no dispute that an amount of Rs. 9,000/- purported to be the recovery amount was deposited vide cheque No. 993886 dt. 03-09-98 from account No. 61154 of Vinayak Enterprises of accused No. 5 Vijay Dayal at State Bank of India, Jwala Heri. The same was not recovered from K R Golden Road carriers. Had any consignment, as covered by the policy, been sent through K R. Golden Road carriers and any damage attributable to the transporter caused to the same, recovery would have been effected from them and not deposited by the third party. The above fact indicates that no transporter i.e. K R. Golden Road carriers had CBI Case No. 34/12 44 of 55 carried the consignment in question.
13.24 From the above evidence, it appears that DO, Sangrur, NIC did not receive any intimation of damage, they did not appoint any surveyor and they did not write any letter to DO-XIII with respect to the policy in question and thus Mark PW 7/1, Mark PW 7/2 (also Ex.PW 8/2), Ex. PW 5/D-1 and Mark X-1 are forged documents.
13.25 From the aforesaid evidence regarding non existence of Rajan Enterprises, non existence of K R Golden Road Carriers, no survey, and no role of NIC, DO Sangrur. It is clear that no consignment, covered by the policy in question, was sent by accused no.3 Anil Maheshwari. Consequently, it can be safely concluded that there was no loss or damage to the consignment and the claim amount has been fraudulently obtained on the basis of forged documents.
Veification Report 13.26 In the verification report, Ex. PW 4/E, accused no. 4 Arvind Kumar Sharma has stated about meeting representative of the Insured/Consignor, representative of the transporter at Delhi and Sunam, the Consignee, Sh. Adev Kumar Aggarwal, Surveyor as also Dr. Chandel at Divisional Office, Sangrur, and concluded that the insured suffered a loss to the tune of Rs. 263383.85 and that the loss was genuine. In view of the fact that the consginee and the transporter did not exist at their given address, no consignment was sent, there was no loss of consignmnet and the survey report was also forged, the Verification Report, Ex. PW 4/E is, by necessary implication false. Accused No. 4 Arvind Kumar Sharma would not have given false report unless he had connived with accused No. 3, Anil Maheshwari to cheat NIC. The circumstances brought on record makes it clear that the said CBI Case No. 34/12 45 of 55 accused was a party to the consiparcy to cheat NIC.
13.27 There is no dispute that cheque no.993886 vide which an amount of Rs. 9000/- was deposited by accused no. 4 Arvind Kumar Sharma in NIC was issued from account no.61154 of Vinayak Enterprises at SBI, Jwalaheri. Though accused no. 5 Vijay Dayal is disputing that he was the owner of Vinayak Enterprises, he admits that he has issued the said cheque from the account of the above firm of which he was an authorised signatory as accused no. 4 Arvind Kumar Sharma had asked for a loan. The plea of accused no. 5 Vijay Dayal that he is innocent as he had issued the cheque for loan of Rs.9000/- to accused no. 4 Arvind Kumar Sharma, is not tenable for the reason that the cheque was not issued in the name of accused no.4 Arvind Kumar Sharma. Further, it is considered that the conspiracy entered into by the accused persons was not only limited to obtaining the claim amount but extended to do all such concomitant acts i.e. completion of the record etc. which would prevent the detection thereof. It is well settled that subsequent conduct of an accused which destroys the presumption of innocence is a relevant fact which can be considered. In this regard, reference can be made to Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), AIR 2010, SC 2352 and Anant Chintaman Lagu Vs. State of Bombay, AIR, 1960 SC 500. In case of cheating, the subsequent conduct of the accused can be an evidence to show the previous dishonest intention (R Vs. Heeramun, 5 WR Cr 5). Thus, it cannot be said that accused No. 5 Vijay Dayal came into picture only after objective of the conspiracy was achieved. The aforesaid circumstances show that accused no. 5 Vijay Dayal was a party to the conspiracy to cheat NIC.
CBI Case No. 34/12 46 of 55
13.28 It has been argued by ld P.P that accused no.3 Anil Maheshwari
could not have cheated NIC without the connivance of accused no.1 Yash Pal Babbar and accused no.2 Moti Lal Mathur. Ld. counsels for the said acused persons argued that they had acted in good faith and had no knowledge if any claim document was forged. It is considered that there is no cogent evidence led by prosecution to prove the complicity of the above two public servants. As earlier held, prosecution cannot build its case against accused no.1 Yash Pal Babbar and accused no. 2 Moti Lal Mathur only on the ground that documents in the claim file are not complete as the sanctity of the preservation of files was not maintained. Ld. P.P. contended that PW 4 Vinod Kumar has deposed that he had prepared claim note on the directions of accused no.1 Yash Pal Babbar and accused no.2 Moti Lal Mathur. PW 4 Sh. Vinod Kumar has testified that he prepared the process note on page 27 continued to page 1 of the file cover on the direction of Sh. Moti Lal Mathur, the then Assistant Divisional Manager. Mr. Anupam Rai Gupta, the then Assistant, who was handling the Marine Claim was on leave on 23-07-1998, hence, he was directed by Mr. Moti Lal Mathur and Mr. Yash Pal Babbar to process the claim and upon their direction, he processed the same. He further stated that actually, Mr. Moti Lal Mathur had prepared the process claim on a plain sheet and handed over the same to him and directed him to copy the same on the Marine Claim file. Accordingly, he copied the same on Marine Claim file. The claim file in question has not been marked to him, neither at that time he was posted in Marine Claim Department. He was verbally instructed by Sh. Yash Pal Babbar and Sh. Moti Lal Mathur to process this CBI Case No. 34/12 47 of 55 claim and accordingly, he processed this claim as they had told him that the client Supreme Industrial Corporation is important and claim cheque should be handed over to him as early as possible.
13.29 During his cross - examination, PW 4 Vinod Kumar stated that he has correctly prepared the processing note, Ex.PW4/A. He had returned the alleged paper on which Moti Lal Mathur had written the processing note from which he had copied. It is an established routine practice in their office that if any assistant or officer is on leave or is otherwise not present in the office, the work will be done by any other assistant or officer. Mr. Mathur had handed over to him the entire claim file and he had checked all the documents present in the file. He did not find any mistake or irregularity in those papers and accordingly the note, Ex.PW4/A and Ex.PW4/B are rightly prepared according to established rules and practice. The claim was in order and the amount was rightly paid by the Insurance Company to the insured. He has not seen the verification report at the time of copying of processing notes. He never intimated any Regional Officer regarding the alleged note prepared by Moti Lal Mathur which he copied as it was a very petty matter. He never intimated to any senior officer in writing that on the basis of a note, he processed this claim. No rule has been violated by issuing this claim to the claimant.
13.30 It is also pertinent to note that PW2, Sh. A.K. Seth, during his cross examination on behalf of accused no.2 Moti Lal Mathur, deposed that they have not specifically pointed out in Ex.PW1/A that Moti Lal Mathur or Yash Pal Babbar did commit any specific irregularity or dereliction of duty. During his cross examination on behalf of accused No.1, PW 3, Sh. A.K. Tiwari also testified they did not find any dereliction of duty in passing of claim CBI Case No. 34/12 48 of 55 by Mr. Moti Lal Mathur and Yash Pal Babbar. From the above testimony, it appears that PW 4 Sh Vinod Kumar had prepared the claim note since the concerned Assistant was absent and he had not found any mistake or irregularity in the papers. The mere fact that accused no.1 Yash Pal Babbar and accused no. 2 Moti Lal Mathur told him that the client Supreme Industrial Corporation was important and claim cheque should be handed over to him as early as possible, by itself, does not appear to be sufficient to hold them guilty.
14.1 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. 14.2 It has been argued by Sh. R.K. Kohli, counsel for accused No. 4 Arvind Kumar Sharma that report dt. 13-07-1998, Ex.PW4/E has been filed by Pooja International. It is not the case of prosecution that the said accused claimed it to be made or executed by some other person or by authority of some other person by whom or by whose authority it was not made. Thus, it is not a false document in terms of Section 464 IPC and, therefore, no forgery has been committed in respect of the said document. He has relied upon Md.
CBI Case No. 34/12 49 of 55 Ibrahim & Ors. v/s State of Bihar and Anr. 2010 Cri LJ 2223 in ths regard. Ld. P.P. has argued that even though the said report has been made or executed by the accused in his own name, since its contents are false, the document would fall within the category of forged document. He has also referred to illustration (h) to section 464 IPC in support of his contention. It is considered that the said illustration does not apply to the facts on this case. 14.3 In this regard, it may be noted that sections 467 & 468 are aggravated forms of the offence of forgery. Section 463 IPC defines 'forgery' as "463. Forgery. - Whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
Further Section 464 IPC defines 'false document' as "464. Making a false document. - A person is said to make a false document or false electronic record -
First - Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a documents or part of the document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or CBI Case No. 34/12 50 of 55 Thirdly - who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration." (emphasis supplied).
14.4 A person can be said to have made a 'false document' if (i) he made or executed a document claiming to be someone else or authorized by someone else or (ii) he altered or tampered a document; or (iii) he obtained a document practicing deception, or from a person not in control of his senses. There is a difference between execution or making of a document itself being false and the contents of a document being false. Whereas the former is covered u/s 464 IPC, the latter would not amount to f' alse document' as defined in section 464 of IPC.
14.5 In Md. Ibrahim & Ors. v/s State of Bihar and Anr. 2010 Cri LJ 2223, the Hon'ble Supreme Court held, "The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.
10. An analysis of section 464 of Penal Code shows that it divides false documents into three categories :
10.1 The first is where a person dishonestly or fraudulently makes or executes a documents with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
10.2 The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without CBI Case No. 34/12 51 of 55 lawful authority, after it has been made or executed by either himself or any other person.
10.3 The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
11. In short, a person is said to have made a 'false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
12. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of 'false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his own even though he knows that it is not his property. But to fall under first category of 'false documents' it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as CBI Case No. 34/12 52 of 55 defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted.
14.6 In the present case Report dt. 13-07-98, Ex.PW4/E was not made by accused no.4 Arvind Kumar Sharma claiming him to be somebody else or that he was authorized by somebody else. Therefore, even if the contents of such document are false, the document itself is not f' alse document' as defined in Section 464 of IPC. Since it is not a false document, there is no forgery and thus, section 468 IPC is not attracted. Therefore, no case is made out against accused no 4 under section 468 IPC. Conclusions 15.1 In view of the aforesaid discussion, it is considered that prosecution has been able to prove beyond a reasonable doubt that :-
(a) Accused No. 3, Anil Maheshwari, accused No. 4, Arvind Sharma and accused No. 5, Vijay Dayal entered into an agreement to cheat NIC, DO-XIII, New Delhi by fraudulently inducing it to sanction insurance claim in the name of Supreme Industrial Corporation, New Delhi under the Proprietorship of accused No. 3, Anil Maheswari to the extent Rs.2,34,118/- by using as genuine, forged documents,
(b) Accused No. 3, Anil Maheshwari deceived and dishonestly induced NIC, DO-XIII, New Delhi to sanction insurance claim of Rs.2,34,118/- in favour of Supreme Industrial Corporation, New Delhi on the basis of forged documents, i.e. invoice, GR and survey report and received the claim amount which was credited in current account No. 413301009 of accused No. 3 in Citi Bank, Branch - II, Connaught Place, New Delhi and he dishonestly or fraudulently used the above documents as genuine, knowing or having reason to believe CBI Case No. 34/12 53 of 55 the same to be forged.
15.2 However, the prosecution has not been able to prove beyond a reasonable doubt that :-
(a) That accused No. 1, Yash Pal Babbar and accused No. 2, Moti Lal Mathur entered into any conspiracy with the co-accused persons to cheat NIC,
(b) That accused No. 1, Y.P. Babbar committed any criminal misconduct in terms of Section 13 (1) (d) of the PC Act,
(c) That accused No. 2, Moti Lal Mathur committed any criminal misconduct in terms of Section 13 (1) (d) of the PC Act,
(d) That accused No. 4, Arvind Sharma commited any forgery.
15.3 The points at para 9 above are decided accordingly. 15.4 In view of the aforesaid, it is held that:-
(a) Accused No. 3, Anil Maheshwari, accused No. 4, Arvind Sharma and accused No. 5, Vijay Dayal are guilty for commission of offence punishable u/s 120-B r/w sections 420 and 471 IPC, and they are convicted accordingly.
(b) Accused No. 3, Anil Maheshwari is guilty for commission of offences punishable (i) u/s 420 IPC and (ii) u/s 471 r/w section 468 of the IPC and he is convicted accordingly.
(c) 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.
(d) 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 CBI Case No. 34/12 54 of 55 Act, 1988.
(e) Accused No. 4, Arvind Kumar Sharma is acquitted of the charge u/s 468 IPC.
16. Let the convicts be heard on the point of sentence on 03-01-2014.
Announced in the Open Court today on 20th Day of December, 2013.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi (ra/pa)
CBI Case No. 34/12 55 of 55