Delhi District Court
Ct. Cases/513993/2016 on 28 January, 2019
IN THE COURT OF SH. ASHU GARG
CHIEF METROPOLITAN MAGISTRATE (CENTRAL)
TIS HAZARI COURTS, DELHI
New Case No. 513993/2016
CNR no. DLCT02-000061-2001
RC.: 11(E)/82
PS: CBI/EOW/ND
U/s 420/468/471/120-B IPC
and s. 5 Foreign Exchange (Control) Act
DGFT v. Chitresh Chopra & Ors.
(a) S. No. of the case : 441/01
(b) Name of complainant : Deputy Chief Controller
of Imports and Exports,
Udyog Bhawan, New
Delhi.
(c) Date of commission of offence : During year 1979-80
(d) Name of the accused persons (1) Chitresh Kumar
Chopra
[SINCE DISCHARGED]
(2) Nand Lal Madan
[SINCE DECLARED
PROCLAIMED
OFFENDER]
(3) Gopal Chander
Awasthi
S/o. Sh. Durga Singh
Awashthi
R/o. Pawanpura, Near
Peth, Bypass Road,
Bulandshehar, UP
RC No. II(E)/82, CBI Page No. 1 of 47
(4) Janak Raj Gupta
[SINCE EXPIRED]
(5) Kishan Dev
Aggarwal
[SINCE CONVICTED]
(e) Offence complained of : U/s. 420/468/471/120-B
IPC and sec. 5 of Foreign
Exchange (Control) Act
(f) Plea of accused no. 3 : Pleaded not guilty
(g) Final arguments heard on : 10.12.2018
(h) Final Order : A-3 Acquitted
(i) Date of such order : 28.01.2019
JUDGEMENT:
1. Accused persons Chitresh Kumar Chopra, Nand Lal Madan, Gopal Chander Awasthi, Janak Raj Gupta and Kishan Dev Aggarwal had been chargesheeted with the allegation of commission of offences punishable under section 420/468/471/120-B IPC and section 5 of Import & Export (Control) Act 1947. It has been alleged that during 1979-80, all these accused persons were party to a criminal conspiracy, the common object of which was to commit offences under section 420/468/471 IPC and Section 5 of Import & Export (Control) Act 1947. It is alleged that the accused persons fraudulently and dishonestly obtained import licence bearing No. P/S/1866994 dated 17.09.1980 in the name of a fictitious firm M/s Taj Industries, RC No. II(E)/82, CBI Page No. 2 of 47 on the basis of false declarations about existence of a manufacturing unit in Moholla Shiv Dutt, Gulaothi and registration as Small Scale Industries Unit with District Industries/Centre, Bulandshahar. Further, the accused persons misused the licenses and violated the terms of the same. They forged or caused to be forged various documents for purpose of cheating and fraudulently and dishonestly used as genuine forged documents in the nature of rent note in respect of premises in Mollaha Shiv Dutt, Gulaothi, invoices, certificate purportedly issued by M/s. Goel & Associates, CA, bank related documents etc.
2. The background:
2.1. As per the prosecution case, there was Import Policy for April-March, 1981, according to para 42 of which, Actual Users (Industrial), who did not take out their Actual Users Licences (AUL) for their raw materials, components and consumables but procured the required materials against the REP Licences or from other authorized sources, were eligible to apply for automatic/supplementary licenses in accordance with the normal policy but the consumption certificate in such cases was to be counter signed by the Sponsoring Authority, as to the existence of the Unit.
2.2. In terms of the aforesaid policy, an application dated 18.06.1980 for issuance of Import Licence in favour of M/s. Taj Industries, near Power House, Gulaothi, was received in the office of the Jt. Chief Controller of Imports & Exports (CLA), RC No. II(E)/82, CBI Page No. 3 of 47 New Delhi on 08.07.1980, as signed by its proprietor Sh. Ran Pal Sharma. The said firm M/s. Taj Industries, was shown to be an existing SSI Unit (small scale industries unit) registered with the District Industries Centre, Bulandshahar vide No. 20/14/1936/PMT/SSI/08 dated 05.03.1979. It was also indicated that the firm had machinery worth Rs. 1,66,000/- and it also declared that it was assessable to Income Tax with the Income Tax Officer, Bulandshahar. In the application, it had also been shown that the firm had purchased iron and steel items worth Rs. 6,81,480/- in the past and the past consumption had been certified by the Chartered Accountant, M/s. Goel & Associates, Ghaziabad which was also countersigned by Sh. T. Mohan, General Manager, District Industries Centre, Bulandshahar. The application was accompanied by requisite declarations with regard to the non-import of any raw material, copies of the SSI Registration purported to be issued to M/s. Taj Industries from the office of the Additional Director of Industries, Meerut, copies of the invoices of M/s. Mahajan International for the purchase MS Sheet Cutting and of M/s. Raunaq International showing the purchase of MS Defective sheets for various values. Another copy of the same application purported to be countersigned by Sh. S.N. Rai of the Office of the Joint Director of Industries, Meerut was also received. As a result of said representations in the application, an Import Licence bearing No. P/S/1866994 dated 17.09.1980 for Rs. 6,81,480/- was issued to M/s. Taj Industries and dispatched to the firm's address on 20.09.1980 RC No. II(E)/82, CBI Page No. 4 of 47 through the registered letter which was delivered on 23.09.1980.
2.3. An inspection of the firm was carried by the officials of the Chief Controller of Imports & Exports, New Delhi on 20.01.1981 but the firm M/s Taj Industries could not be located. It was thus reported by the said inspection team that M/s. Taj Industries had obtained import licence through fraudulent means. The Director of Industries, Meerut/ Bullandshahar also informed the licensing authorities that the firm M/s Taj Industries was neither registered with their office nor the said office had ever forwarded the application for issuance of Import Licence in its name.
2.4. It was found that no such firm M/s. Taj Industries existed nor it was registered as SSI Unit with the District Industries Centre, Bulandshahar, that the application for licence had been signed in a fictitious name as 'Ran Pal Sharma' as proprietor, as no such person existed, that the declarations enclosed with the application for issue of Import Licence were also false and forged, that the Chartered Accountant M/s. Goel & Associates, Ghaziabad that had countersigned and certified the consumption, also did not exist. Further, the signatures purported to be of Sh. T. Mohan, District Industries Centre, Bulandshahar and of Sh. S.N. Rai, General Manager, District Industries Centre, Meerut had also been found to be forged.
RC No. II(E)/82, CBI Page No. 5 of 473. The involved:
3.1. As per the prosecution, the conspiracy was hatched by accused C. K. Chopra (A-1, proprietor of an Import Export Concern in the name and style of M/s. Super Impacts at New Delhi, since discharged by the Hon'ble High Court of Delhi), accused Nand Lal Madan (A-2, a resident of Ghaziabad, since declared Proclaimed Offender), accused Gopal Chander Awasthi (A-3, a senior clerk in the office of Manager, District Industries Centre, Bulandshahar, UP), accused Kishan Dev Aggarwal (A-5, another resident of Ghaziabad, since convicted on his plea of guilt), one Suraj Prakash (who has turned approver and granted pardon) and accused Janak Raj Gupta (A-4, a partner in M/s.
S.D. Gupta & Co., Bombay, whose role came much later, since expired).
3.2. It is claimed that accused no. 1 to 3 had engaged the other accused persons for the aforesaid purpose.
4. Conspiracy revealed:
4.1. The investigation in the present matter was conducted by the CBI (SPE/CBI/EOW/New Delhi) upon registration of regular case (RC) No. 11/E/82- Delhi. The following would be the revelations of the investigation.
4.2. In pursuance of the conspiracy, two firms, namely, M/s.
Taj Industries and M/s. Indo Chemicals were floated by the RC No. II(E)/82, CBI Page No. 6 of 47 accused persons on the same address, that is, Mohalla Shiv Dutt, Gulaothi.
4.3. During 1979, on instruction from accused CK Chopra, accused Nand Lal directed accused KD Aggarwal to contact accused GC Awasthi in his office at Bulandshahar and to take him to Gulaothi for having some premises on rent so as to have the address for the aforesaid firms at Gulaothi. Accused Accordingly, KD Aggarwal contacted GC Awasthi, who accompanied him to Gulaothi for the purpose. At Gulaothi, they contacted Sh. P C Kansal, a Journalist, running a printing firm at Gulaothi, who was known to GC Awasthi since his posting at Ghaziabad. Accused Suraj Prakash (since turned approver) was engaged in the conspiracy.
4.4. A small premises in Mohalla Shiv Dutt, Gulaothi, belonging to the family of Sh. PC Kansal was taken on rent of Rs. 100/- per month during November-December, 1979 and an advance of Rs. 200/- was given.
4.5. A Kiryanama (rent deed) and an affidavit were executed, signed by accused Suraj Prakash (since turned approver) in fictitious name of Kulbhushan as Proprietor of the firm M/s. Indo Chemical Industries. The said Rent Deed was signed by accused GC Awasthi as a witness in the fictitious name of 'Sriniwas' in Hindi.
RC No. II(E)/82, CBI Page No. 7 of 474.6. Neither any machinery was installed nor any manufacturing activity was performed in the aforesaid premises which mostly remained locked. However, display boards of the two firms, M/s. Taj Industries and M/s. Indo Chemical Industries, were put on the said premises.
4.7. An application for registration of the firm M/s. Indo Chemicals was submitted in the office of the General Manager/District Industries Centre, Bulandshahar under the fictitious name as Kulbhushan, Proprietor. Along with the application, the above mentioned Kiryanama (rent deed) also signed by GC Awasthi as witness under fictitious name of Sriniwas and affidavit purported to be signed by Kulbhushan as Proprietor of the firm, were submitted.
4.8. Accused GC Awasthi, dealing assistant, in his note dated 08.01.1980 recommended for registration of the firm and the same was registered on 11.01.1980.
4.9. The said premises remained under the possession of the accused persons for about seven months and the rent for five months was subsequently paid by accused G C Awasthi to Sh. PC Kansal vide cheque No. 2509895 dated 31.12.1980 for Rs. 500/- drawn on his personal account with the New Bank of India, Bulandshahar.
RC No. II(E)/82, CBI Page No. 8 of 474.10. It was found that the application for issuance of Import Licence dated 18.06.1980, on the basis of which the Import Licence in this case had been issued in favour of M/s. Taj Industries, had also been signed by accused Sh. Suraj Prakash under a fictitious name of 'Ran Pal Sharma' and the address of the firm had been shown as same as that of M/s. Indo Chemicals (which is that of the premises taken on rent from PC Kansal vide kirayanama).
4.11. It was further found that the SSI Registration Certificate, copy of which had been enclosed along with the application for issuance of import licence, had been in fact issued to M/s. Diness Glass Industries, Secundrabad, District Bullandshahar.
4.12. Similarly, it was found that that the invoices purportedly showing the purchase of MS Sheet cuttings and defective sheet plates from M/s. Mahajan International and M/s. Raunaq International purportedly in favour of M/s. Taj Industries, had been in fact issued in favour of M/s. Alfa Enterprises, Loni, Ghaziabad, a firm being run by accused KD Aggarwal in a fictitious name as KB Verma (Kul Bhushan Verma). The name of the buyer thereupon was replaced with M/s. Taj Industries and the same were utilized for making application for issuance of Import Licence. The records of the aforesaid firms M/s. Mahajan International and M/s. Raunaq International showed that the said RC No. II(E)/82, CBI Page No. 9 of 47 two invoices had been received by accused K D Aggarwal under acknowledgment as proprietor of the firm M/s. Alfa Enterprises, for which payments had also been made by accused KD Aggarwal himself through demand drafts.
4.13. After fraudulently obtaining the import licence on 23.09.1980 in favour of the fictitious firm M/s. Taj Industries, the accused persons approached the United Commercial Bank, Ghaziabad on 01.10.1980 and a bank account was opened with the initial deposit of Rs. 5000/- in the name of M/s. Taj Industries. The necessary papers were again signed by accused Suraj Prakash under fictitious name of 'Ran Pal Sharma'. The initial amount of Rs. 5000/- was provided by accused CK Chopra and made available for the purpose of opening the account by accused Nand Lal who had accompanied accused Suraj Prakash to the bank for the said purpose under instructions from other co- accused.
4.14. The account was introduced by accused KD Aggarwal as KB Verma, proprietor of M/s. Alfa Enterprises. A cheque book was also obtained and the same was retained by accused Nand Lal. The pay in slips for initial deposit and subsequent cheques issued from the cheque book were partly or wholly written by accused KD Aggarwal while these were signed by accused Suraj Prakash, under the instructions from other accused. The signatures of accused Suraj Prakash were obtained by accused RC No. II(E)/82, CBI Page No. 10 of 47 Nand Lal on blank cheques from time to time.
4.15. The accused also approached the bank with the letter of authority purported to be in favour of M/s. SD Gupta & Co, Bombay for verification of signatures of Sh. Ran Pal Sharma thereon and the same was verified as per the records by Sh. SC Jain, accountant of the said bank.
4.16. After obtaining the import licence and getting the Letter of Authority as aforesaid authenticated from the bank, accused CK Chopra contacted accused Janak Raj Gupta, partner of M/s. SD Gupta & Co. Bombay and unauthorizedly transferred the said import licence to him on the basis of the letter of authority to affect the imports thereunder at his own, ostensibly under the letter of authority. The imports were accordingly affected by M/s. SD Gupta & Co. as Letter of Authority holder through the clearing agent M/s. Shanker Hari Ram Joshi & Co. Bombay in four lots. The necessary papers including the Bills of Entry file with the customs in respect of the aforesaid imports were signed by accused Janak Raj Gupta as partner of M/s. SD Gupta & Co.
4.17. M/s. Shanker Hari Ram Joshi & Co. Bombay, CHA, after having cleared the goods from Customs at Bombay delivered the same time to time. These were further shown to have been falsely delivered to Ran Pal Sharma during the period from 17.12.1980 to 31.01.1981. The imported material was thus RC No. II(E)/82, CBI Page No. 11 of 47 shown to have been delivered to the non-existing firm M/s. Taj Industries and the same was never brought to Gulaothi and was otherwise disposed of or misutilized by M/s. SD Gupta & Co. at Bombay itself. It was not utilized in the factory premises of M/s. Taj Industries that had neither installed any machinery nor there was any electricity power connection granted to it to run the machinery during the relevant period.
5. Thus, as per the prosecution, the accused persons namely Chitresh Kumar Chopra (A-1), Nand Lal Madan (A-2), Gopal Chander Awasthi (A-3), Krishan Dev Aggarwal (A-5) and Suraj Prakash (approver, since pardoned), during the period 1979-81, under criminal conspiracy, had floated the fictitious firms M/s Taj Industries and M/s Indo Chemicals, near Power House, Gulaothi, and by resorting to dishonest and fraudulent means/methods had obtained the Actual Users Import Licence No. P/S/1866994 dated 17.09.1980 for Rs. 6,81,0480/- on the basis of false and forged documents which were subsequently unauthorizedly transferred/sold to M/s. SD Gupta & Co. Bombay. After having effected the imports thereunder, M/s. SD Gupta & Co. through its partner accused Janak Raj Gupta had misutilized the imported goods after having falsely shown the delivery of the material imported under the aforesaid licence to the aforesaid fictitious and non existent firm M/s. Taj Industries.
6. After the investigation was conducted by the CBI, the present complaint was filed by Sh. AGV Subbu, a public servant and an RC No. II(E)/82, CBI Page No. 12 of 47 officer authorized on behalf of the Central Government to make the complaint in writing under section 6 of the Imports & Exports (Control) Act, 1947. Thus, the complaint was filed alleging that the accused persons CK Chopra, Nand Lal Madan, GC Awasthi and KD Aggarwal committed offences punishable under section 120-B IPC read with section 420, 465, 468/471 IPC & Section 5 of the Imports & Exports (Control) Act, 1947 and Section 5 of the Imports & Exports (Control) Act, 1947. Accused KD Aggarwal also allegedly committed substantive offence under Section 465 IPC. Further, accused Janak Raj Gupta, in conspiracy with accused CK Chopra and other co-accused, allegedly committed offences under sections 120-B IPC read with Section 5 of the Imports & Exports (Control) Act, 1947 and substantive offence under section 5 of the Imports & Exports, (Control) Act, 1947. Accused Suraj Prakash was cited as approver/witness.
7. Initially, upon receipt of the complaint on 02.02.1985, cognizance of the offences was taken by the court and the accused persons were summoned. Based on the material on record, order on charge dated 25.05.1988 was initially passed against them for commission of offences punishable under section 120B IPC read with section 420, 468, 471 IPC and Section 5 of the Imports & Exports (Control) Act, 1947 and substantive offences under these, and actual charges were framed on 09.08.1988, to which they pleaded not guilty and claimed trial.
RC No. II(E)/82, CBI Page No. 13 of 478. It may be noted that the said charges were framed as the matter was considered to have been filed on a police report. However, the said orders framing the charges was quashed by the Ld. Appellate Court, observing that the procedure of warrants-triable complaint case should have been followed and not that of a case filed on police report. Thus, when the matter was remanded, it was listed for recording of pre-charge evidence, as per the procedure provided for warrants-triable complaint cases.
9. In pre-charge stage, as many as 37 witnesses were examined from out of cited 88 witnesses. Thereafter, detailed order on charge was framed on 02.08.1999 and actual charge was framed on 12.08.1999. At the time of passing order for framing of charge on 02.08.1988, the Court directed the accused persons to state if they wished to cross-examine any of the prosecution witnesses whose evidence had already been recorded in terms of section 246(4) CrPC. Accordingly, when the charge was formally framed on 12.08.1999, Court recorded the statement of accused persons and / or their Ld. Counsel individually to the effect if they wanted to further cross- examine any witness examined in pre-charge stage or not. It would be important to note that as far as the accused GC Awasthi is concerned, his Ld. Counsel Sh. GK Sharma had stated at that time that he did not want to further cross-examine any of the witness examined earlier. Therefore, when the witnesses were recalled for further examination in terms of option exercised by the other accused persons, technically speaking, the accused G C Awasthi should not have been given RC No. II(E)/82, CBI Page No. 14 of 47 opportunity to further cross-examine those witnesses. This position assumes importance because when PW-1 was recalled for his evidence in post-charge stage, he was duly cross-examined further by the Ld. Counsel for accused GC Awasthi, without his bringing it to the notice of the court that he has already exercised option not to further cross- examine him. Be that as it may, the court has to evaluate the material against him to ascertain his culpability.
10. In the trial of the case, prosecution/complainant examined 38 witnesses in all in support of its case, out of 88 witness cited in the list of witnesses.
11. The Approver:
11.1. PW-1 Sh. Suraj Parkash is the co-conspirator in the offence, who has been forwarded as a witness / approver after he was tendered pardon.
11.2. The statements of the said person have been recorded a number of times. After his statement recorded by the CBI under section 161 CrPC, his statement was recorded on 01.09.1984 before the Court of Sh. Raghubir Singh, the then Ld. MM, under section 164 CrPC at the time of granting pardon. Subsequently, the said PW-1 Suraj Prakash was also examined under section 306(4) CrPC before the Court of Ms. Manju Goel, the then Ld. ACMM (as her ladyship then was) on 05.05.1987 and 14.07.1987. At the time of trial of the case, he was then RC No. II(E)/82, CBI Page No. 15 of 47 examined in pre-charge stage on 18.01.1993, 27.01.1993 and 01.09.1993. He was later recalled for further cross-examination in post-charge stage on 07.11.2013 and 14.07.2014.
11.3. PW-1 deposed that accused Nand Lal had met him at Meerut Court, who asked him come to Ghaziabad and that he would get some employment for him. He went to accused Nand Lal at Ghaziabad from where he was taken to Bulandshahar, where accused Gopal Chand Avesthi met them. Nand Lal and GC Awasthi talked to each other about opening of a factory. PW- 1 was told by Nand Lal to work with him for which he would pay him Rs. 400/- per month. He again met Nand Lal at Ghaziabad and then went to Bulandshahar with him, where at a Court, his signatures were obtained on a rent note by accused Nand Lal and Avesthi, on which he signed note as 'Kulbhushan Verma'. He testified that that the said rent note Ex. PW-1/18 bore is signatures as 'Kulbhushan' at portion mark Q33 and that accused GC Awasthi also signed the same at point mark Q53. An affidavit Ex. PW-1/19 was also signed by him at point Q34 as Kulbhushan. The other firm M/s. Indo Chemical Industries was opened wherein he was shown as proprietor with the name Kulbhushan. Accused Nand Lal and GC Avesthi told him there he should work with them under the name 'Ran Pal Sharma'.
Nand Lal got his signatures on some blank application forms in respect of the installation of factory with the name Taj Industries. Accused Nand Lal took him to United Commercial Bank, RC No. II(E)/82, CBI Page No. 16 of 47 Ghaziabad where an account in the name of Taj Industries was opened and he signed as Ran Pal Sharma as proprietor of the firm. He deposed that the said firm Taj Industries had been opened to obtain a license for import, which was received by him by post from Gulaothi post office and handed over to accused Nand Lal. He identified his signatures on various documents signed by him under fictitious names of 'Ran Pal Sharma' and 'Kulbhushan Verma'.
12. PW-2 Sh. AGV Subbu is the complainant in the case who had filed the complaint Ex. PW-2/A while working as DCCI in the Office of the JCCI & ECLA, New Delhi, after obtaining the approval from Additional Chief Controller of Imports & Exports, New Delhi. He filed the complaint as an officer authorized on behalf of the Central Government to make the complaint in writing under section 6 of the Import & Export Act 1947, as a public servant.
13. PW-3 Sh. GC Aggarwal was practicing as Chartered Accountant. He deposed that in the year 1980-81, no CA by name of M/s. Goel & Associates by Mr. SP Goel was practicing at the relevant time to his knowledge. He pointed out that application Ex. PW-1/3 does not bear seal or number of M/s. Goel & Associates.
14. PW-4 Sh. Dalip Singh Yadav was working as Typist in AU-I Section in the year 1980-81. He was entrusted the licence file No. UP/Y-2 for typing the licence No. P/S/1866994 and the same was RC No. II(E)/82, CBI Page No. 17 of 47 typed by him and handed over to the dealing hand Ms. Prem Lata Bharti.
15. PW-5 Sh. Deep Chand was working as Dispatcher in AU Section-I in the year 1980-81, who proved the relevant entry Ex. PW- 5/A of the dispatch register through which licence file No. UP/I-2 posting to issuance of import licence number P/S/1866994 dated 17.09.1980 had been dispatched.
16. PW-6 Sh. Ranvir Singh working as Postman as leave reserve in the year 1981. He saw the envelopes addressed to Taj Industries Gulaothi bearing registration No. 2235 and 1110, contained remarks regarding return Ex. PW-6/A and Ex. PW-6/B, as the firm could not be traced on the given address, as given by Radhey Sham, Postman.
17. PW-7 Sh. Sagar Chand Jain was posted as Special Assistant in Ghaziabad Branch of UCO Bank from 1976 to 1982. He proved the cheque Ex. PW-7/A dated 13.11.1979 relating to the current account of M/s. Alfa Enterprises and the cheque Ex. PW-1/15 dated 02.02.81 relating to the account of M/s. Taj Industries. These two cheques were presented in their branch and he passed these cheques. He also proved an application Ex. PW-7/B dated 13.01.1980 given by M/s. Alfa Enterprises for closing of its account in their branch, upon which the account was closed as per rules.
18. PW-7 (sic: PW-7A) Sh. Gopal Krishnan was the Secretary of RC No. II(E)/82, CBI Page No. 18 of 47 the Institute of Chartered Accountants of India, who had given letter Ex. PW-7/A to the CBI.
19. PW-8 Ms. Prem Lata was posted as LDC in the office of Joint Chief Controller of Imports & Exports (CLA) New Delhi and posted in Actual User Licencing Section (1) in 1979 February. She dealt with the file of M/s Taj Industries for issue of licence. There was some discrepancy in the name of the proprietor, for which she sought clarification and after getting clarification, gave noting for issuance of licence and put up the file before the Controller. On the basis of her noting, the application of M/s. Taj Industries for licence was approved and the licence was issued in the name of said firm.
20. PW-8 (sic: PW-8A) Sh. PC Kansal was running a weekly magazine "Peedit Wani" at his press at Gulawathi. He is the person who was known to the accused GC Awasthi and who was contacted by the accused for taking a premises on rent. He deposed that accused GC Awasthi had come to him with a person who was introduced as Kulbhushan Verma (which he pointed to be accused KD Aggarwal) and he had let out a premises belonging to his brother which was lyng vacant and not in good condition, at a monthly rent of Rs. 100/-. He deposed that two name plates in the names of Taj Industries and some chemical firm (probably Indo Chemical Industries) were put up there, but there was no work being done, no machinery installed and no electricity connection at that premises.
RC No. II(E)/82, CBI Page No. 19 of 4721. PW-9 Sh. A K Srivastava was posted at UCO Bank Ghaziabad for 1980-1983. He proved the current account opening form Ex. PW- 1/14 filling in his handwriting. It pertained to Taj Industries, proprietor Ran Pal Sharma, as introduced by Sh. Kulbhushan proprietor of M/s. Alfa Enterprises. He also proved credit voucher Ex. PW-9/A and stated that a cheque book had been issued for that account.
22. PW-10 Sh. D K Parwani was working as Manager in Ghaziabad branch of UCO Bank from 1976 to 1980. He had directed opening of account in the name of Alfa Enterprises, after completing all the formalities by desk officer Sh. N K Mehta. He proved the account opening form Ex. PW-10/A, as filled by Sh. N K Mehta, as introduced by Bhagwati Dhoop Karyalaya through Sh. Kul Bhushan Verma its Prop, and verified by Sh. N K Mehta.
23. PW-11 Sh. V P Sharma was working as SDO-II, District Bullandshahar, in 1983. In terms of letter Ex. PW-11/A, he had gone to the address given in the letter written by SP, CBI at Kalawati (Sic:
Gulawati) but he did not find any undertaking by the name of Taj Industries.
24. PW-12 Sh. Narinder Kumar Mehta worked in Ghaziabad branch of UCO Bank from 1976 to 1981. On 07.02.79, he had verified the signature of M/s. Bhagwati Dhoop Karyalaya, of which Sh. Kulbhushan Verma was the proprietor.
RC No. II(E)/82, CBI Page No. 20 of 4725. PW-13 Sh. M M Saxena was posted as Income Tax Officer in in 1983. He had handed over file Ex. PW-13/B pertaining to assessment record of M/s. Alfa Enterprises for the year 1978-79 to CBI, which was seized vide memo Ex. PW-13/A. PW-14 Sh. Arun Mahadev Bokil deposed was posted in Vigilance Section in 1983 as UDC, who handed over certain documents to CBI vide seizure memo Ex. PW-14/A.
26. PW-15 Sh. Kashmiri Lal Gupta was a partner of M/s. SD Gupta & Company which dealt in indenting of Steel & Iron items to be imported under import licence. Accused Janak Raj Gupta (since expired) was also a partner therein. He deposed about the manner of their business, issuance of letter of authority, opening of LC (letter of credit), receipt of documents, release of documents on payment, involvement of clearing agents, brokers, etc. In this case, a broker along with a person approached them for import to be done in the name of Taj Industries being holder of Import license. He handed over documents to CBI vide receipt memo Ex. PW-15/A, Ex. PW- 15/D, including bills, authority letter given in name of Ran Pal Sharma, declarations, debit note, delivery challan, etc. The LC was opened in this case through Union Bank of India, Mohd. Ali Road Branch, Bombay.
27. PW-16 Sh. V K Goel was posted as Income Tax Officer at Bullandshahar in 1983. He sent letter Ex. PW-16/A to CBI informing RC No. II(E)/82, CBI Page No. 21 of 47 that M/s. Taj Industries was not an assessee.
28. PW-17 Sh. M S Popli posted at Chawri Bazar Branch of Punjab & Sind Bank as an officer in 1983-1984. He handed over documents to CBI vide receipt memo Ex. PW-17/A.
29. There is no witness examined as PW-18, PW-19 or PW-20. After examination of PW-17, the next witness exmaiend was given number PW-21. This fact also finds mention in order in charge dated 02.08.1999.
30. PW-21 Sh. K K Bhatia worked as Branch Manager of New Bank of India, Bullandshahar from September 1981 till March 1985. CBI officer had seized documents from his bank vide memo Ex. PW- 21/A.
31. PW-22 Sh. K S Nagra was posted as Manager in UCO Bank, Asaf Ali Road Branch, Delhi in the year 1984. Vide seizure memo Ex. PW-22/1 dated 27.02.1984, he had handed over some documents to the CBI, including account opening form cum specimen signature Ex. PW-22/2, letter Ex. PW-22/3, statement of account Ex. PW-22/4 and the introduction letter Ex. PW-22/5.
32. PW-23 Sh. Sham Kumar was posted in Central Bank, Parliament Street Branch as Clerk cum Cashier in 1980. He proved challan Ex. PW-23/A deposited for Rs. 50/-.
RC No. II(E)/82, CBI Page No. 22 of 4733. PW-24 Sh. K B Kamath was officer in Nariman Point Branch of the Corporation Bank in Foreign Exchange Department from 1979 to 1982. He used to deal with import section i.e. opening of LCs, retirement of documents (Import) etc. He proved LC Ex. PW-24/A given by S D Gupta & Company, application Ex. PW-4/A, intent application Ex. PW-4/B, licence Ex. PW-4/C was furnished, insurance copy Ex. PW-24/D was also given, etc. The letter of credit Ex. PW24/I was identified by him.
34. PW-25 Sh. Satish Madho Bendri joined Karnataka Bank in Ford Branch Bombay in March 1980. He deposed that M/s. S D Gupta & Company had submitted application for opening letter of credit , signed by its partner Janak Raj Gupta (accused since expired) Ex. PW- 25/A. The application was accompanied by letter of intent and licence, on which they opened LC No. BY/489/80 dated 09.06.1980, which was amended time to time on the instruction of S D Gupta & Co.
35. PW-26 Sh. K C Sharma also deposed about deals in obtaining licences and selling the same in Bombay parties. He deposed facts about accused Nand Lal and accused Kishan Dev Aggarwal who used to deal with the same business. In 1979 K D Aggarwal wanted to open bank account and approached him. He stated that K D Aggarwal had opened the account in the name of K B Verma to his knowledge.
36. PW-27 Sh. Malkit Singh was working as Appraiser of customs in Mumbai at New Customs House in 1980. He had assessed bills of RC No. II(E)/82, CBI Page No. 23 of 47 entry No. 2321 Ex. PW-15/5.
37. PW-28 Sh. Chota Lal Vithal Dass Karia deposed about his employment with M/s Bhim Ji Shanker Ji Hari Ram Joshi Ram & Co. as Incharge of Import Department from 1978 till 1984. he deposed about manner in which documents used to be delivered and payments made and goods cleared. He identified bill of entry Ex. PW-28/A and stated that accused Janak Raj Gupta of S D Gupta & Co. received goods and gave challan.
38. PW-29 Sh. R S Nayak was working as Assistant Manager in Karnataka Bank, Nariman Point, Bombay in 1983. Vide receipt memo dated 04.04.1983 Ex. PW-29/A, he handed over documents to the CBI pertaining to S D Gupta and Company.
39. PW-30 Sh. Shashi Shekhar Mahto was working as LDC in the department of DGTD, Udyog Bhawan, New Delhi in the year 1984, in whose presence specimen writing and signature of accused K D Aggarwal was obtained by the CBI officers.
40. PW-31 Sh. Radhey Shyam was working as Postman at Gulawati, District Bullandshahar in the year 1983 and used to deliver ordinary post, registered, money order etc. He deposed that he knew Sh. Prem Chand Kansal (PW-8 herein) who used to run business of printing press situated near Old Power House. He further stated that he had seen there one display board of Taj Industries but had never seen RC No. II(E)/82, CBI Page No. 24 of 47 any business or manufacturing done there. He used to deliver postal articles there. He proved delivery slip Ex. PW-31/1 through which he had delivered article / letter Sr. No. 44487 to M/s Taj Industries at the given address, though could not identify the persons who received the said article.
41. PW-32 Sh. NC Sood was the Government Examiner of Questioned Documents who had analysed and examined the documents of this case as received in his office from CBI, EOW, Delhi. He proved his report Ex. PW-32/54, wherein he had concluded that (i) The person who wrote the writings marked S1 to S7 (of approver Suraj Prakash, PW-1) also wrote the questioned writings marked Q1 to Q123, Q14, Q22 to Q32. (ii) The person who wrote the writings marked S8 to S10, S108, S11 to S27, A1 to A13, A15 and A16 (of accused KD Aggarwal) also wrote the questioned writings marked Q37 to Q50. (iii) The person who wrote the writings and signatures marked S28 to S38 (of accused GC Awasthi) also wrote the questioned writings and signatures marked Q51, Q51A, Q52 and Q53.
(iv) The person who wrote the signatures marked S39 to S43 (of accused Janak Raj Gupta) also wrote the questioned signatures marked Q54 to Q68. (v) The person who wrote the writings and signatures marked S44 to S49 (of one Vijay Kumar Sharma) also wrote the writings and signatures marked Q69 and Q70.
42. PW-33 Sh. Balbir Singh was working as Controller in the Section of ECA Branch office of Joint Chief Controller Import and RC No. II(E)/82, CBI Page No. 25 of 47 Export, I P Estate, New Delhi in the year 1983. Through receipt memo dated Ex. PW-33/1 dated 13.01.1983, he had handed over documents to CBI, like counter foil of import licence Ex. PW-27/A and dispatch register of registered Dak Ex. PW-33/2 vide which the licence in question had been dispatched to the party vide Ex. PW-5/A.
43. PW-34 Sh. N K Chandrawarker was working with Union Bank of India in the year 1983 at Mohd. Ali Road, Bombay, and had handed over documents to CBI vide through receipt memo Ex. PW-34/1 with regard to S D Gupta and Company, Foreign Exchange Dealers.
44. PW-35 Sh. R R Baliga from Corporation Bank had also handed over one file relating to letter of credit No. 80521 of M/s S D Gupta and Company through receipt memo dated 08.03.1983, Ex. PW-35/1.
45. PW-36 Sh. R S Singh was working as Controller of Import and Export ECA III Section in the office of Chief Controller of Import and Export Udyog Bhawan, New Delhi in 1983. He had handed over documents to the CBI vide receipt memo dated 23.05.1983 Ex. PW- 36/1.
46. PW-37 Sh. Hari Kishan Sharma was working as Clerk cum Cashier at Chawri Bazar Branch of Punjab and Sind Bank in the year 1979. He identified cash deposit slip dated 20.08.1979 by which he received cash Rs. 30,300/- from Sh. K B Verma in favour of Alfa Enterprises in respect of current account no. 971 Ex. PW-37/1.
RC No. II(E)/82, CBI Page No. 26 of 4747. PW-38 Sh. R K Medha was working as Special Assistant at branch office of UCO Bank at Asaf Ali Road, New Delhi in the year 1979. He saw account opening form Ex. PW-22/2 and stated that he had introduced the account 9231 of Mr. Krishan Kumar who had signed the said account opening form in his presence. He deposed that the accused K D Aggarwal had signed as Krishan Kumar at the time of opening of the said account.
48. Statement of the accused GC Awasthi under section 313 CrPC was recorded on 27.02.2018, wherein he denied the allegations and pleaded innocence. He stated that he was posted at Zila Udhyog Kendra, Bulandshahar as Senior Clerk and used to deal with SSI registration and giving of loans. He explained that applications for registration used to come to him and he used to hand over the same to the Area Inspector after entering the same in the register, that the Area Inspector used to give his report after inspection of the spot which he used to present before the GM, and if the GM approved the same, the file used to come back to him and he used to put covering letter and forward the same to Joint Director of Industries, Meerut for issuing certificate. He took stand that he had no concern with the present case. He chose to lead evidence in his defence.
49. The accused examined himself as DW-1 as only defence witness. He reiterated the stand taken by him in his statement under section 313 CrPC, and denied that licence in this case had been issued RC No. II(E)/82, CBI Page No. 27 of 47 with his connivance on the basis of forged documents.
50. It is in these circumstances that the Ld. Counsel for DGFT has submitted that the prosecution / complainant has been able to establish its case against the accused. However, the court is constrained to put it on record that no assistance whatsoever has been rendered by Ld. Counsel for DGFT at the time of final arguments, except making general submissions that the case stands proved. No pains were taken by the Ld. Counsel to highlight any statement on any issue or point towards any relevant document or material from the voluminous and old record of the present case.
51. On the other hand, Ld. Defence Counsel for accused GC Awasthi has submitted that no case is made out against him. It has been argued that there is no reliable evidence against this accused, except the statement of the approver PW-1, whose statement is otherwise tainted and quite contradictory on various points. He has argued that the statement of the approver does not find corroboration from any independent source to be read against the accused, and has pointed out that even this witness has been changing his statement on material particulars from time to time. It is reiterated that the case of the prosecution is against the firm M/s. Taj Enterprises, with which the accused GC Awasthi had no concern and that the accused had never dealt with the file of M/s. Taj Industries at any stage during the course of his working in the office of District Industries Centre, Bulandshehar.
RC No. II(E)/82, CBI Page No. 28 of 4752. I have heard the arguments advanced by both the sides (though hardly any assistance has been rendered by the complainant/prosecution) and have carefully gone through the material on record.
53. It is also important to note that during the course of proceedings, accused CK Chopra approached the Hon'ble High Court of Delhi against the order of framing of charge against him. In that order, the Hon'ble High Court went through the statement of approver dated 18.01.1993 and 27.01.1993 given in pre-charge stage and observing that material was not sufficient to frame charge against him, ordered the accused CK Chopra to be discharged. Further, accused Nand Lal stopped appearing in court and was declared proclaimed offender. Accused Janak Raj Gupta expired during course of trial and proceedings against him stood abated. Accused Krishan Dev Aggarwal was convicted on his plea of guilt and was sentenced accordingly. This judgement now pertains to the accused GC Awasthi only.
54. At the outset, the recorded evidence would make it clear that the prime witness in this case happens to be PW-1 Suraj Prakash, who is claimed to be a co-conspirator, though tendered pardon and now cited as an approver. As already noted above, his statements have been reocrded a number of times. After his statement recorded by the CBI under section 161 CrPC, his statement under section 164 CrPC was RC No. II(E)/82, CBI Page No. 29 of 47 recorded on 01.09.1984 before the Court of Sh. Raghubir Singh, the then Ld. MM, at the time of granting pardon. Subsequently, the said PW-1 Suraj Prakash was examined under section 306(4) CrPC by the Court of Ms. Manju Goel, the then Ld. ACMM (as her ladyship then was) on 05.05.1987 and 14.07.1987. It may be put on record that after recording of the said statement, the Ld. ACMM was of the view that the matter had to be committed to the Ld. Sessions Court and the file was committed for trial to the Ld. Sessions Court. However, Ld. Sessions Court was of the view that the matter ought to be tried by the Ld. CMM and the file was sent back to this Court. PW-1 was thus examined at pre-charge stage on 18.01.1993, 27.01.1993 and 01.09.1993. He was recalled for further cross-examination in post- charge stage on 07.11.2013 and 14.07.2014.
55. As far as statement of the approver/witness under section 161 CrPC is concerned, that is certainly not a substantive piece of evidence and can be used only for contradicting a witness. Similar is position with respect to his statement under section 164 CrPC recorded by the Ld. MM on 01.09.1984, which is also not a substantive piece of evidence and can be used for corroboration and contradiction. For that matter, even the statement of the approver recorded in the court under section 306(4) CrPC by the then Ld. ACMM on 05.05.1987 and 14.07.1987, would also stand on similar footing, in view of section 308(2) CrPC which provides that such statement of approver under section 164 CrPC or 306(4) CrPC can be given against him at the trial. Therefore, the substantiate piece of RC No. II(E)/82, CBI Page No. 30 of 47 evidence happens to be only the testimony of the witness/approver during the trial of the case before the court. The previous statements can be used only for contradiction or corroboration purposes, or for proceeding against the approver in case he fails to abide by the terms of pardon. Therefore, for the purpose of determining the liability of accused GC Awasthi, the Court has to primarily rely upon the testimony of PW-1 recorded in pre-charge stage on 18.01.1993, 27.01.1993 and 01.09.1993, and also his further cross-examination in post-charge stage on 07.11.2013 and 14.07.2014. It would be pertinent to note that even in the judgment dated 03.10.2006 in Criminal Revision Petition No. 356/1999, the Hon'ble High Court of Delhi while discharging the accused Chitresh Kumar Chopra, had relied only on the statement of the approver given in pre-charge stage on 18.01.1993 and 27.01.1993 (though he was also examined on 01.09.1993 in pre-charge stage itself, yet not gone into by the Hon'ble High Court, probably because the statement recorded on 01.09.1993 was never brought to the notice of the Hon'ble Court). Even the Hon'ble High Court did not go into or consider the statements of the approver given before the Ld. MM on 01.09.1984 and before the Ld. ACMM on 05.05.1987 and 14.07.1987, in which he had named the said accused CK Chopra.
56. To cut the long proceedings short, it would be seen that to determine the liability of accused GC Awasthi, the Court would be primarily relying upon the testimonies of PW-1, PW-6, PW-8A, PW- 31 and PW-32. The other witnesses have deposed on various aspects RC No. II(E)/82, CBI Page No. 31 of 47 of investigation, with which there is no direct connection with the accused GC Awasthi. The evidence of other witnesses mainly deal with investigative steps at some point or the other, without establishing any role of the accused GC Awasthi, with which this court is concerned in this judgement. For that matter, the material facts have been deposed only by PW-1, and the testimony of PW-1, PW-6, PW-8A, PW-31 and PW-32 would be analysed to see if they corroborate the facts stated by the approver PW-1 on material particulars. so as to give credibility to the same. Other than the approver PW-1 and to some extent PW-8A, there is no witness examined on record who could depose about the involvement of accused GC Awasthi in the alleged conspiracy. No other witness has seen the accused GC Awasthi committing any offence and there is no other direct evidence or circumstantial against him.
57. PW-1 has deposed against the other accused persons (with which this court has no concern in this judgement) and also the accused GC Awasthi. The Court shall confine itself to the averments made against the accused GC Awasthi, without going into the details of the other averments of PW-1 qua the other accused persons.
58. It would be important to note that even as per the prosecution version, the approver PW-1 Suraj Prakash had been engaged/employed by other accused persons to assist them in commission of a larger conspiracy to commit other offences. The said PW-1 Suraj Prakash is stated to be only a person who had been used RC No. II(E)/82, CBI Page No. 32 of 47 by the other accused persons who were the prime conspirators. The role of approver Suraj Prakash has also been limited to the initial stage of the offence and not to the subsequent stages. A perusal of the evidence of PW-1 Suraj Prakash would show that he claimed to have met the accused Nand Lal at Meerut Court who asked him to meet at Bulandshahar and then at Ghaziabad. He was given certain payments and was directed to work for them. As per the prosecution case, the other accused persons got signatures of the approver PW-1 Suraj Prakash on some blank forms with respect to installation of factory with the name of M/s. Taj Industries and he was made to sign 10-15 papers as Ran Pal. A bank account in the name of M/s. Taj Industries was also opened in which the approver was made to sign as Ran Pal. One premises belonging to the family of Sh. PC Kansal (PW-8A herein) was obtained by the accused persons, in which the approver Suraj Prakash had made to sign as Kulbhushan Verma, proprietor of M/s. Indo Chemical Industries to be the lessee and one Kirayanama was executed between Sh. P C Kansal and the approver. In the said premises, the display boards of M/s. Taj Industries and M/s. Indo Chemical Industries were put and applications were made to the concerned authorities in the fictitious name of Ran Pal, as proprietor of M/s. Taj Industries, to obtain the import licences. The said licence was received through post by the approver Suraj Prakash and was handed over to the other accused persons. The role of approver Suraj Prakash ended after the said licence was obtained by him, and there is no further role atteibuted to him with respect to further use or misuse of the import licences. Therefore, the role of Suraj Prakash had been RC No. II(E)/82, CBI Page No. 33 of 47 only to the initial level only.
59. Well, similar would be the position with respect to the accused GC Awasthi. Though the prosecution has alleged that he was the prome conspirator with the accused Nand Lal and Chitresh Kumar Chopra, yet the evidence recorded nowhere shows his role in the larger conspiracy in use of import licence after it was received from the concerned authorities. There is nothing to show that he had any concern with the import license or its subsequent use or misuse, or transfer of license, or import of goods though this license, or disposal of imported goods, etc.
60. As per the version of PW-1 Suraj Prakash given in pre-charge stage (that is, on 18.01.1993, 27.01.1993 and 01.09.1993), the accused Nand Lal took him to Bulandshahar to met accused GC Awasthi. He alleged that the accused Nand Lal and GC Awasthi talked to each other about opening of factory. PW-1 met Nand Lal at Ghaziabad where accused GC Awasthi was present. Further, PW-1 alleged that at Bulandshahar, his signatures were obtained on a rent deed (Ex. PW- 1/18 herein) in the presence of Nand Lal and GC Awasthi, on which the approver PW-1 Suraj Prakash had signed under the fictitious name of 'Kulbhushan Verma' at point Q-33 and the accused GC Awasthi signed at point Q-55 under the fictitious name of 'Shriniwas'. Additionally, an affidavit Ex. PW-1/19 was also signed by the approver PW-1 Suraj Prakash at point Q-34 as 'Kulbhushan'. According to PW-1, accused Nand Lal and GC Awasthi had told him RC No. II(E)/82, CBI Page No. 34 of 47 that he should work with them as Ran Pal.
61. A perusal or entire evidence would reveal that there is no witness examined to corroborate the facts deposed by the approver PW-1 Suraj Prakash with respect to involvement of accused GC Awasthi. There is no independent material to corroborate the fact that accused Nand Lal had taken PW-1 Suraj Prakash to the accused GC Awasthi at Bulandshahar. There is no other evidence to show that accused Nand Lal and GC Awasthi had talked to each other about opening of factory, particularly when this version is not there in the statement of approver recorded under section 164 CrPC Ex. PW-1/29. Similar is the position with respect to averment that the approver had met Nand Lal at Ghaziabad where accused GC Awasthi was claimed to be present. No such fact is there in the statement of approver under section 161 CrPC Ex. PW-1/DA or in his statement under section 164 CrPC Ex. PW-1/29. All the averments of PW-1 with respect to his being used by the other accused persons in opening the fictitious firm at the given address or opening bank account under a false name and obtaining of import licence under false declarations, are mainly confined to the accused Nand Lal, who has since been declared as Proclaimed Offender. But as far as accused GC Awasthi is concerned, the allegations levelled by PW-1 Suraj Prakash have not been corroborated by any independent sources. Therefore, such averments coming out from the mouth of the approver alone would not be sufficient to hold accused GC Awasthi guilty, because evidence of such an approver has to be viewed with suspicion and can be relied RC No. II(E)/82, CBI Page No. 35 of 47 upon only when his averments are corroborated in material particulars by some independent source.
62. The most important fact deposed against the accused GC Awasthi is with respect to one rent deed/kirayanama Ex. PW-1/18, which does find some support in the evidence of PW-8A as well. According to the prosecution, this kirayanama was got signed through approver PW-1 Suraj Prakash under the fictitious name of 'Kulbhushan' as proprietor of the firm M/s. Indo Chemical Industries. The said rent note was executed between PW-8A Sh. PC Kansal and the approver Suraj Prakash under the fictitious name of Kulbhushan, whereby the premises belonging to the brother of PW-8A was let out to M/s Indo Chemical Industries (though its proprietor PW-1 Suraj Prakash) at a monthly rent of Rs. 100/-. Additionally, it is alleged that the accused GC Awasthi had also signed the said kirayanama as a witness under the fictitious name 'Shriniwas'. Thus, the prosecution has relied upon on the said rent note executed with PW-8A PC Kansal which has been signed by the approver PW-1 Suraj Prakash and also by the accused GC Awasthi under fictitious names, to show that he was involved in the conspiracy of the present case.
63. To give credibility to such allegations of PW-1 approver, the prosecution has relied upon testimony of PW-8A PC Kansal who deposed that accused GC Awasthi, who also already known to him as he had earlier got some printing work done through his printing press, had come to him with a person looking for premises on rent. PW-8A RC No. II(E)/82, CBI Page No. 36 of 47 gave the premises belonging to his brother to the said person brought by accused GC Awasthi at monthly rent of Rs. 100/- and subsequently, five months' rent of Rs. 500/- was also paid to PW-8A by accused GC Awasthi by issuing a cheque from his account. Additionally, the signatures of accused GC Awasthi, where he had signed under the fictitious name of 'Shriniwas' in Hindi, have been examined by the handwriting expert PW-32 and upon comparison with the specimen signatures of the accused GC Awasthi obtained by the IO during the course of investigation, matched with the signatures on the rent note/kirayanama Ex. PW-1/18.
64. However, it may be noted that the prosecution case is not certain even on this point. The fact that the rent note/kirayanama Ex. PW-1/18 had been signed by PW-1 Suraj Prakash at point Q-33 under the false name of Kulbhushan Verma, has also remained doubtful. Other than the version of the approver PW-1 himself, there is no independent corroborating evidence to establish this fact. This is essentially when the report of the handwriting expert PW-32 Sh. NC Sood, proved as Ex. PW-32/54, has not given any opinion to the effect that the signatures on Ex. PW-1/18 at point Q-33 belong to that of approver Suraj Prakash. Other than the testimony of approver PW-1, there is no independent source to show that it was the approver Suraj Prakash who had signed the rent deed at point Q-33 under the name of Kulbhushan Verma. This is more so, when PW-8A PC Kansal in his evidence, pointed towards accused Kishan Dev Aggarwal to be the person who had been introduced as Kulbhushan Verma by accused GC RC No. II(E)/82, CBI Page No. 37 of 47 Awasthi. Even during his cross-examination on behalf of accused KD Aggarwal, PW-8A denied that accused KD Aggarwal was not the same person who had been introduced as Kulbhushan Verma. Therefore, the version of PW-1 Suraj Prakash, that he had signed the rent deed as Kulbhushan Verma at point Q-33, has not been supported either by PW-8A himself or even by the handwriting expert PW-32. Moreover, during his cross-examination in post-charge stage, PW-1 completely resiled from his earlier statements and now stated that he had not signed any paper in the office of GC Awasthi, never went to the bank, never received any dak in the premises in question and that he did not know PC Kansal. Therefore, it is remains doubtful as to if it was the approver Suraj Prakash who had signed the rent deed/kirayanama Ex. PW-1/18 or not, so as to give credibility to the version of the approver PW-1. Similarly, opinion given by the handwriting expert PW-32 with respect to signatures of Kulbhushan Verma appearing on the affidavit Ex. PW-1/19 at point Q-34, that had been signed alongwith kirayanama Ex. PW-1/18, nowhere attributes such signatures to be that of the approver Suraj Prakash. Even the signatures at point Q-34 on Ex. PW-1/19, stated by PW-1 Suraj Prakash to be belonging to him, does not find corroboration from any independent source. Thus, the weak evidence of the approver becomes all the more weak.
65. Further averment of PW-1 implicating the accused GC Awasthi is that the said GC Awasthi had signed the rent deed/kirayanama Ex. PW-1/18 at point Q-53. This fact certainly finds support from the RC No. II(E)/82, CBI Page No. 38 of 47 report of handwriting expert PW-32, according to which the said signatures at point Q-53 on Ex. PW-1/18 tallied with the specimen signatures (S-28 to S-32) belonging to the accused GC Awasthi.
66. But this court is unable to rely upon the said opinion of expert, in view of the law laid down by the Full Bench of the Hon'ble High Court of Delhi in the judgment titled as Sapan Haldar v. State [(2012) 191 DLT 225], wherein the Hon'ble High Court while answering reference to the said larger bench, held that "an investigating officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence" and that even prior to the Amendment Act of 2006 by which section 311-1 CrPc was inserted, "even a Magistrate could not direct a person accused to give specimen signatures or handwriting samples". Thus, the act of the IO in the present case to take specimen signatures of the accused GC Awasthi, would be squarely covered by the law laid down by the Hon'ble High Court in the said judgment and has to be necessarily excluded from consideration.
67. Not only this, to corroborate the version of the approver PW-1 on this point, the prosecution was supposed to have the support of PW-8A PC Kansal, who is claimed to be an eye-witness of the execution of the said rent deed/kirayanama. But interestingly, PW-8 PC Kansal also did not depose anything with respect to execution of any such rent deed/kirayanama, or about any such kirayanama having RC No. II(E)/82, CBI Page No. 39 of 47 been signed by the accused GC Awasthi, or for that matter, even the kirayanama having been signed by the approver Suraj Prakash, or even by the person brought by GC Awasthi which he stated to be accused KD Aggarwal. Rather he deposed that "agreement in writing was not executed" at all with respect to the letting out of the premises. Strangely, he was never cross-examined by the prosecution on this aspect. No suggestion was put to him by the Ld. Counsel for the complainant / prosecution, suggesting that the kirayanama Ex. PW- 1/18 had been signed not only by the approver Suraj Prakash under the fictitious name of 'Kulbhushan' but also by PW-8A as well who had given the property on rent, as also by accused GC Awasthi under fictitious name of 'Shriniwas'. For the reasons best known to the prosecution, no such kirayanama Ex. PW-1/18 was even put to him during his testimony, enabling him to either admit or deny the same. No suggestion was given to him by the prosecution that he had signed as landlord on the said kirayanama or that the approver Suraj Prakash had signed the same at point Q-33 or that the accused GC Awasthi had signed it at point Q-33. Even he would have no explanation to give as to why he allowed accused GC Awasthi, who was already known to him, to sign under a fictitious name as 'Shriniwas'. By not putting this document to this witness, a missing link has been created by the prosecution with respect to the credibility of statement of approver qua the said rent note/kirayanama.
68. Thus, in view of this missing link, and exclusion of the report of handwriting expert Ex. PW-32 in view of above precedent, there is no RC No. II(E)/82, CBI Page No. 40 of 47 independent evidence to corroborate the testimony of approver PW-1, which is already under suspicion, to establish that accused GC Awasthi had signed the rent note Ex. PW-1/18. The most important witness PW-8A, who could have deposed about this fact, has not deposed on these lines, without any objection of the prosecution for this omission. Therefore, the evidence becomes all the more doubtful.
69. As per prosecution case, the business concern M/s. Taj Industries was a non-existing entity, in whose name the import licence had been obtained by the accused persons on the strength of false documents. For this, the prosecution has again relied upon the testimony of PW-1 approver, which is claimed to be corroborated by the testimony of PW-8A PC Kansal as well PW-6 and PW-31 postmen.
70. PW-8A PC Kansal stated that there were two display boards put up on the premises which he had let out, one in the name of M/s. Taj Industries and second in the name of some chemical firm (assuming that it was M/s. Indo Chemical Industries). He stated that there was no electricity in that premises, no machinery installed there and no manufacturing work was being done there. However, even if the industries were not in actual existence and were under fictitious names only, yet it is clear that at least the address given by such fictitious firms was not incorrect. Even if no actual work was being done at the said premises, the evidence of PW-8A would confirm that at least display boards of two firms had been put up there and that address RC No. II(E)/82, CBI Page No. 41 of 47 belonged to the business concerns Taj Enterprises and Indo Chemical Industries, howsoever fictitious they might be otherwise.
71. Even PW-31 postman stated that he had seen the display board of Taj Enterprises at the said premises, though had never seen any business or manufacturing activity there. But he surely confirmed that he used to deliver the postal articles there and had delivered the posts at the said address. Thus, as far as the concerned postman PW-31 is concerned, the address of the business concern was very much available, traceable, identifiable and in existence, irrespective of the fact if there was no manufacturing business activity being carried out by M/s. Taj Enterprises there.
72. However, the said position is in sharp contradiction to the reports Ex. PW-6/A and Ex. PW-6/B, claimed by PW-6 postal official to have been given by PW-31 postman, according to which, the envelopes addressed to M/s. Taj Industries, Gulaothi, remained unserved for the reason that no such firm could be traced at the given address. Thus, in view of the testimony of PW-31, the evidence of PW-6 becomes doubtful because even if no business actively was going on at the premises in question, at least the address was certainly traceable, identifiable and in existence, at which PW-31 had been delivering the posts.
73. In any case, even PW-6 or PW-31 did not depose anything against the accused GC Awasthi or even the approver PW-1 Suraj RC No. II(E)/82, CBI Page No. 42 of 47 Prakash. He stated that due to weak eye-sight, old age and lapse of time, he could not identify the persons who had received the posts when delivered by him. Therefore, even the testimony of these postal officials do not support the averments made by PW-1 Suraj Prakash that he had received dak through post at the premises in question, to corroborate him on material particulars. Again, this would be in view of complete change by the PW-1 of his previous statements while under further cross-examination in post-charge stage. This position also creates more doubt in the credibility of the statement of the approver.
74. It is further in evidence that accused GC Awasthi had paid a sum of Rs. 500/- to PW-8A P C Kansal as rent of five months for the premises in question. It would be however pertinent to note that the said amount was paid through cheque and much after the premises had been let out. If the accused GC Awasthi had signed the rent agreement/kirayanama not in his actual name but under the fictitious name of "Shriniwas", it was quite unlikely that he would create evidence by paying Rs. 500/- subsequently from his bank account through a cheque. In any case, such payment made much later after the execution of the alleged rent note, would not be incriminating enough so that assume that accused GC Awasthi had a hand in conspiracy in question.
75. On the top of this position, is the subsequent hostility of PW-1 Suraj Prakash, who had been forwarded as an approver, who RC No. II(E)/82, CBI Page No. 43 of 47 completely resiled from his previous statements given in the pre- charge evidence, that under section 161 CrPC, that under section 164 CrPC and that under section 306(4) CrPC. Though he was recalled for further cross-examination in post-charge stage on 14.07.2014, that is, after a gap of more than 20 years when it was expected that there could have been fading of memory, yet the approver resiled from most of his statements made earlier. He now claimed that he never went to the office of DIC, District Bulandshahar where GC Awasthi was working, that he had met accused GC Awasthi only once in the presence of accused KD Aggarwal who gave money to the accused GC Awasthi, that he did not sign any paper in the office of GC Awasthi, that he did not open any bank account in Ghaziabad, that he never went to bank, that he never received any dak at Gulaothi, that he did not know who PC Kansal was, that he did not know if PC Kansal had executed any rent deed in favour of M/s. Indo Chemical Industries, that his photographs were never pasted on the application form, that he never gave any document while opening the account and that he did not know if any licence was issued to Taj Industries. All these statements now made by him, though after lapse of a considerable period, are in sharp contradiction to his previous statements made earlier. This would be sufficient to doubt his credibility, particularly when the statement of an approver has otherwise also not been corroborated by any independent source and it shall not be safe for the court to rely on such testimony to convict a person for a criminal offence. The other evidence led on record does not pertain to the accused GC Awasthi and the other witnesses have RC No. II(E)/82, CBI Page No. 44 of 47 not deposed anything else against the accused GC Awasthi.
76. The fact that the accused GC Awasthi who was a senior clerk in the office of DIC, Bulandshahar and had recommended registration of M/s. Indo Chemical Industries while working in such capacity, has not been proved through any witness. Though the file noting given by accused GC Awasthi is on record, but this document has not been proved by examining the suitable witnesses. The record moreover shows that the said noting was not the sole basis on which the registration/certification had been granted to M/s. Indo Chemical Industries. Rather there is specific inspection report given by the then Inspector stating that upon visiting the site, he found the factory in existence and had even noticed the machinery installed there, which was never in fact there as per the prosecution case. If that was so, it s not explained why no action was taken against the said Inspector who had given the said report. In any case, since the said records have not been proved as per law, the court has to exclude the same from consideration.
77. The court need not go into much discussion with respect to the established and settled law as to the weightage and credibility to be given to the testimony of an approver. Sections 114 and 133 of the Indian Evidence Act would show that an approver is a competent witness, yet the evidentiary value of such an approver has to be viewed with some suspicion. As per the law laid down in various precedents titled as A. Devendran v. State of Tamil Nadu [AIR 1998 RC No. II(E)/82, CBI Page No. 45 of 47 SC 2821], Shankar v. State of Tamil Nadu [(1994) 4 SCC 478], Venkatesha v. State of Karnataka [(2013) 12 SCC 99] and Khokan Giri v. State of West Bengal [AIR 2017 SC 668], conviction cannot be based on the sole testimony of an approver and corroboration would ordinarily be required in material particulars from some independent source as well. Whatever facts the approver has deposed against the accused persons, it is always advisable to have them corroborated from independent sources before relying on them, because the statement is made by an approver only on the promise and assurance that he shall be tendered pardon. Therefore, with a such motive in mind and to secure tender of pardon, there is every possibility that the approver may depose anything against co-accused persons. Thus, to read such evidence against any accused and to convict him on the statement of an approver, there has to be material from independent sources to corroborate the version of the approver and to give credibility to his statement.
78. In a criminal trial, the burden is always upon the prosecution to establish the guilt of an accused beyond the shadow of reasonable doubt. For that, credible positive evidence has to be led. This burden never shifts on the accused to prove his innocence. Mere suspicion, howsoever strong it might be, cannot replace the standard of proof required to establish guilt of an accused for a criminal offence.
79. In the case at hand, as discussed above, the evidence of the approver PW-1 qua accused GC Awasthi has not been corroborated RC No. II(E)/82, CBI Page No. 46 of 47 from independent sources so as to give credibility to the facts deposed by him. The remaining evidence falls short of sufficient material to establish his involvement. Several documents on record filed against this accused have remained not proved. Many cited witnesses could not be examined by the prosecution during course of a lengthy trial of about 33 years. For this, doubt has arisen with respect to involvement of the accused GC Awasthi, the benefit of which has to be given to him.
80. Having said so, the accused GC Awasthi is given the benefit of doubt and is acquitted of the charges.
81. His bail bonds shall remain in force for a period of six months in terms of section 437-A, CrPC.
82. File be consigned to the record room. It shall revive as and when the accused Nand Lal, who continues to be a Proclaimed Offender, is apprehended/produced.
Digitally signedASHU by ASHU GARG Date: Announced in the open Court GARG 2019.01.28 11:45:15 +0530 this 28th day of January 2019 (Ashu Garg) Chief Metropolitan Magistrate (Central) Tis Hazari Courts, Delhi RC No. II(E)/82, CBI Page No. 47 of 47