Delhi District Court
M/S. Exotic Fashions vs Cbi (Central Bureau Of Investigation) on 5 September, 2014
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST) SPL. JUDGE (NDPS) KARKARDOOMA COURTS, DELHI
Crl. (A) No. 73/13
1. M/s. Exotic Fashions
G5, South Extension, PartII,
New Delhi.
2. Ahtasham Alam,
Partner of M/s. Exotic Fashions,
G5, South Extension, PartII,
New Delhi.
3. M/s. Galaxy International,
G5, South Extension, PartII,
New Delhi.
4. Sh. Javed Alam
Partner of M/s. Galaxy International,
G5, South Extension, PartII,
New Delhi. ........... Appellant
Versus
1. CBI (Central Bureau of Investigation) ............ Respondent
ORDER
1. This is an appeal filed by the appellants challenging the order of Ld. CMM dt. 10.07.13, whereby they were convicted u/s. 465/471/420 IPC and were sentenced for the same.
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2. Brief facts are that appellant no.1 is a partnership firm with appellant no.2 as one of its partners and appellant no.3 is another firm with appellant no.4 as one of its partners. Appellant no.2 Ahtasham Alam through it firm Exotic fashion (appellant no.1) had obtained six licence for import made up to the tune of Rs.15,60,828/ total value of Rs. 448.17 lacs. The imports worth Rs.15,60,828 were made. As per allegations after the import the firm filed fourteen shipping value showing export of pens and video cassettes falsely. The consignment was caught at Manglore during checking. Similar allegations are against M/s. Galaxy international Ltd. for having obtained licence worth Rs.341.45 lacs and having filed false shipping bills of export. FIRs were registered against both the firms and the partners in this regard at Manglore. During the investigation of those FIRs it was found that both appellant no.1 and appellant no.2 showed M/s. Elite India , 1066, Ward No.8, Mehrauli as their supporting manufacturer which was neither in existence nor engaged in the manufacturing and supply of video cassettes and pens. On the basis of this fact one chargesheet was filed u/s. 120B r/w section 420 IPC against all four in Delhi. The charges were framed against the appellants u/s. 420/465/471 r/w 120 B IPC. After the trial Ld. Trial Court convicted the accused persons under aforesaid sections, which order is challenged by the appellants interalia on following grounds.
● The relied witnesses are not reliable and trustworthy.
● The documents were wrongly exhibited on which no finding has been given by the court.
CA No.73/13 Page 2of 12 M/s. Exotic Fashions & Ors. Vs. CBI ● The crossexamination of the witnesses have been completely discarded. ● Chargesheet was only qua false information relating to supporting manufacturer, hence the question of misdeclaration in the shipping bill was not the subject matter of trial.
● All the three public witnesses, PW Ratan Singh, Moolchand and Jagmohan had not supported the prosecution case.
● Evidence of PW14 Rakesh Kapoor, the IO is not reliable.
● Law on presumption has been ignored.
3. Arguments were heard. Record perused.
4. The record reveals that chargesheet filed in the Trial Court was only qua misdeclaration of the name of supporting manufacturer as M/s. Elite India Ltd. and cheating and forgery on this account. It was stated that the chargesheet for cheating on other account and misdeclaration were filed in the Manglore Court. The charge was framed on four grounds including misdeclaration at Manglore. The judgment, however, was restricted to misdeclaration of name of supporting manufacturer, which is in terms of the chargesheet and the court having held that the accused persons cheated the Govt. of India by obtaining licences on false declaration. The judgment therefore, appears to be on the facts which were stated so in the charge sheet.
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5. Prosecution case is that the two accused firms, which were being run by the other two accused partners furnished false information regarding existence of a supporting manufacturer in the name of M/s. Elite India Ltd., when in fact there was no such unit existing. To support its case prosecution relied upon the testimony of PW6 Mool Chand, PW17 Jag Mohan Singh Rawat, PW7 Ratan Singh and the IO PW Rakesh Kapoor.
6. PW6 in his evidence says that accused Javed i.e appellant no.4 had a factory at the address of 1066, Ward No.8, adjoining to his house and he was doing the work of readymade garments in that factory. He said that he did not see board of M/s. Elite India on the factory of Javed. In his crossexamination the witness stated that he was illiterate and could not read and write. He stated that there were many sign boards affixed outside the factory but because he was illiterate he could not tell anything about the board. He said that the board of M/s. Elite India Ltd. might have been affixed there. He could not tell how many factories were running from address no. 1066 and he could not tell if any factory of M/s. Elite India, manufacturing marker pen existed in the premises or not.
7. Next witness of the prosecution is PW7 Ratan Singh. Major part of his evidence is regarding the work that he did for M/s. Exotic India and M/s. Galaxy International. The evidence would have been relevant to show that the appellant had furnished the named documents to obtain the licence. He did not say in his CA No.73/13 Page 4of 12 M/s. Exotic Fashions & Ors. Vs. CBI examination in chief of his own about existence or non existence of M/s. Elite India. A question was put to him whether he had seen the office of M/s. Elite India at 1066, Ward No. 8, Mehrauli. He replied specifically that he used to sit at G5 South Extn. PartII, New Delhi and at that place he did not see the office of supporting unit. He visited Mehrauli only once or twice and sat in the office of Javed Alam in which office he did not see the office of M/s. Elite India. In any case this witness merely says that he went to Mehrauli once or twice and he sat in the office of Javed Alam, where he did not see the office of M/s. Elite India. He does not say that Elite India was not existing at 1066, Ward No.8, Mehrauli. In his crossexamination he stated that office of Mehrauli was spread over a large place and was constructed up to 45 storey. He could not tell if the office of Javed Alam was situated on 1st floor or ground floor of the building. He categorically stated that the supporting manufacturer unit could be existing on 3rd or 4th floor but he never went upstairs. This witness also therefore, does not say categorically that there was no unit in the name of Elite India existing at the address, though he personally did not see any such office, however, qualifying lines are that he visited this office only once or twice and was not aware what officers were operating from 3rd & 4th floor.
8. PW17 Jagmohan Singh Rawat stated that he was working with Exotic Fashion and Galaxy International at G5 South Extn. PartII. He says that he does not remember having seen the board of Elite India at 1066, Ward No.8 Mehrauli. He was crossexamined by PP for the CBI however, he did not agree that he told CBI that CA No.73/13 Page 5of 12 M/s. Exotic Fashions & Ors. Vs. CBI he was frequently visiting the place and had never seen M/s. Elite India at Mehrauli address. In his crossexamination he stated that whenever he visited the Mehrauli office he found plastic related articles and garment packed in different units. He stated that IO had made him sit in his office and has obtained his signatures on some blank papers. He said that there were many units at 1066, Ward No.8 Mehrauli and that he did not remember how many boards were affixed there. He stated specifically that as per his knowledge a manufacturing unit M/s. Elite India was working at 1066, Ward No.8, Mehrauli.
9. The Ld. Trial Court while considering the testimonies of these witnesses picked certain part of their evidence to conclude that they were saying that no unit by the name of M/s. Elite India existed at 1066, Ward No.8, Mehrauli. The Trial court concluded that since PW6 stated that premises at 1066, Ward No.8, Mehrauli was factory of accused Javed Alam; Ratan Singh stated that he visited this place but did not see the office of M/s. Elite India and PW17 stated that there were many units at 1066, Ward No.8, Mehrauli. Javed Alam's factory was existing and M/s. Elite India not existing there.
10. A careful reading of the testimonies of these witnesses, however, would shows that none of the witnesses in fact stated that office of M/s. Elite India did not exit at the stated address. A very relevant fact is that no site plan of the place has been prepared or filed on the record. No photographs of the place have been CA No.73/13 Page 6of 12 M/s. Exotic Fashions & Ors. Vs. CBI taken. All the three witnesses are saying that many units were running from 1066, Ward No.8, Mehrauli and it was a large area constructed over four storeyes. To conclude that the witnesses meant that since Javed Alam was seen at 1066, Ward No.8, Mehrauli therefore, M/s. Elite India did not exist at his place would be a wrong conclusion in as much as a categoric evidence has come that there were more units than one in the premises. There is nothing in evidence that who this property belonged to? Who was the owner and to whom all it was given on rent, if at all? PW6 stated that he did not seethe sign board, however, he could not read as he was illiterate. His saying that the factory of Javed Alam existed on the aforesaid address does not mean that no other unit was working from that place, more so when he has categorically stated that he could not tell how many factories were running from the place and that it was possible that M/s. Elite India was also functioning from the place.
11. PW7 Ratan Singh had visited the Mehrauli office only twice. He says that he could not tell if M/s. Elite India existed on 3rd or 4th floor as he never went there. He could not tell whether the office of Javed Alam was on ground floor or 1st floor. Same would be the appreciation of evidence of PW17.
12. Coming to the evidence of IO, PW14 Rakesh Kapoor, the witness stated in his evidence that while obtaining value based advance licences, the firms i.e M/s. Exotic Fashions and M/s. Galaxy International had shown false information relating CA No.73/13 Page 7of 12 M/s. Exotic Fashions & Ors. Vs. CBI to the supporting manufacturer M/s. Elite India. The said manufacturer was not found in existence nor any manufacturing unit was found. He stops here in his examination inchief regarding the basic fact of the case i.e existence or non existence of M/s. Elite India at the stated place. In his crossexamination, he stated that he had personally inspected the office of accused firms situated at G5 South Extn. PartII, New Delhi and also at 1066, Ward No.8, Mehrauli. He could not tell how many storeys were there in the factory. He says that he visited the entire factory but could not tell the numbers of storeys. He could not tell the area of premises. He said that he does not remember how many offices or units were working there. He could not tell how many subordinates had accompanied him at the time of inspection of the premises. He did not record their statement to support his inspection of the premises. He could not tell the date on which he inspected the premises. He says that he did not seize any account book or other records from the factory premises. He said that he did not remember if he had prepared any site plan of the place of inspection, however, admittedly no site plan was tendered by him in his evidence. He said that he had obtained search warrants before searching the premises, however, no such search warrant was found on record. He stated that he came to know that M/s. Elite India was not existing after he physically verified the existence and was given a suggestion that his personal observation was biased. He stated that he did not verify if any licence was issued to M/s. Elite India from small scale industries. He stated that he had examined three independent witnesses ( Amar Jeet Singh, Khushi Ram and Mool Chand) at the time of his personal visit. Two of the witnesses, however did CA No.73/13 Page 8of 12 M/s. Exotic Fashions & Ors. Vs. CBI not appear to give evidence and the third one did not support the prosecution. He stated that he does not remember if he had written any letter to the Govt. agencies to find outthe existence of M/s. Elite India before filing the chargesheet. He stated that he did not know if a licence was given to Elite India by small scale industries and denied the suggestion that he intentionally did not enquire from the concerned department. The evidence of the witness would show that apart from whatever he stated in the court orally, there was nothing which could support his oral contention. The very basis of the case was the existence or nonexistence of a specific entity at a specific place. The IO had visited the place to conclude that it did not exist. He said that he examined three independent witnesses, however,as stated above two did not come to the court and one did not support the prosecution. The personal visit of the IO at the spot is not corroborated by any reliable documentary or oral evidence. When an inspection is conducted by an officer with a purpose to ascertain the existence of X thing or person at a place, it is expected that relevant documents which would make the visit believable, would be placed on record. The IO says that he had searched the premises after obtaining the search warrant, the search warrant, is nowhere existing. He has not prepared any site plan to show how many units were existing in the premises and that Elite India specifically was not existing there. He was expected to have taken the photographs of the premises to support his contention that though many units were existing, M/s. Elite India was missing from the stated premises. He did not try to find out the owner of premises who could tell as to whom he had given the premises on rent. It is not proved as to what was the area of CA No.73/13 Page 9of 12 M/s. Exotic Fashions & Ors. Vs. CBI premises and if the witnesses are to be believed it was a large area with multiple floors. A categoric evidence therefore, was required to show that what existed and what did not exit in the premises. IO could not tell how many units existed in the premises or how many floors were constructed. All these facts make the claim of IO that he personally visited the spot, unbelievable. The statement of IO shows that he did not make any effort whatsoever to find out if any unit by the stated name was registered with small scale industries or any other Govt. Agency.
13. The accused persons stated in their statement u/s.313 Cr.P.C categorically that M/s. Elite India was manufacturing unit and was given licence by Govt. agency which licence was also given to the investigating officer, who had verified this licence but gave evasive replies to the court to conceal truth from the court. In the defence accused persons examined DW1, who tendered a report regarding a provisional certificate, which was given to M/s. Elite India in the year 1993. Ld. Trial court disbelieved this document, holding that the report stated that the certificate could not be verified since original was not available; but report also stated that provisional certificate was issued by the department. It further stated that since 2006 no certificate is required for running the units as certified in the certificate. Reading the statement of accused u/s. 313 Cr.P.C with the defence evidence, a document was given to the investigating officer, photocopy of which was tendered during defence evidence. The IO says that he did not examine from any Govt. Authority to find out if no unit in the name of M/s. Elite India was existing. He has stated in his cross CA No.73/13 Page 10of 12 M/s. Exotic Fashions & Ors. Vs. CBI examination that he does not remember if he had verified the letter and licence issued to M/s. Elite India from small scale industries, Govt. of India, Delhi. He did not say that no such letter or licence was given to him by the accused in investigation. Now reading the three evidence together a document was given to the IO during investigation; he does not remember having verified the same and during the long process of chargesheeting and trial the very process of issuance of certificate was stopped by the government.
14. Ld. Trial court has held that the prosecution was to prove a negative fact and it was upon the accused to have proved that the unit existed by bringing reliable evidence. Even it is accepted that the prosecution was to prove a negative fact and there had to be a shifting of onus; the prosecution at least was required to bring on record strong basis of suspicion. As held above, there is absolutely no reliable evidence on record to conclude that the firm did not exit at stated place.
15. It was argued that the witnesses have deposed that the certificate was issued as per procedure and due verification. As argued by the counsel, there was a presumption that the Government officials would have followed the correct procedure in ascertaining the facts before issuance of the certificate. It is not that this presumption is irrebuttable or that there could not have been violation or deviation in following the procedures laid down. However, when the prosecution wanted to prove that the rules were not followed or that the accused did manage by furnishing forged CA No.73/13 Page 11of 12 M/s. Exotic Fashions & Ors. Vs. CBI documents; it was for the prosecution to bring more cogent and reliable evidence instead of simply relying on three witnesses, who are hostile and IO, who did not do his job properly.
16. In view of all above, several doubts arise in the story of prosecution claiming that no entity in the name of M/s. Elite India existed at the stated place. It is settled law that wherever two views are possible, the one which favour the accused is to be accepted. The benefit of doubt is given to accused persons. Appeal is allowed. Appellants/accused are acquitted of all the charges framed against them. Trial Court record be sent back with a copy of this order. Appeal file be consigned to record room.
Announced in the open
court on 05.09.14 (ANURADHA SHUKLA BHARDWAJ)
ASJ02, (EAST) KKD COURTS/DELHI
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