Delhi District Court
Aggarwal Is The Sr. Scientific Officer ... vs Cbi (Crl. M.C./2384/2011) Passed On on 27 May, 2014
IN THE COURT OF SH. RAKESH SYAL, SPECIAL JUDGE, (PC ACT)
& (CBI)-03, SOUTH WEST DISTRICT, DWARKA, NEW DELHI
CBI Case No. 29/12
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.
2. Moti Lal Mathur,
S/o Shri B.L. Mathur,
R/o Pocket A-10/74-A,
Kalkaji Ext., New Delhi-19.
3. Pramod Kumar Gupta,
S/o Shri Prakash Gupta,
R/o C-479, IIIrd Floor,
Vikas Puri, New Delhi-18.
4. Kailash Chand Jain,
S/o Late Sh. Hira Lal Jain,
R/o F-56, Preet Vihar,
Delhi-92.
5. Surendra Kumar Jain,
S/o Late Sh. Hira Lal Jain,
R/o 5, Anand Puri,
Kanpur, U.P.
CBI Case No. 29/12 1 of 66
6. Ramesh Khaneja,
S/o Shri Raj Gopal Khaneja,
R/o Flat No. 112,
A-62/63, Mansa Ram Park,
Uttam Nagar, New Delhi.
Date of Institution of Case : 31-01-2003
Date on which Judgment was reserved : 13-05-2014
Date on which Judgment was delivered : 27-05-2014
JUDGMENT
Facts 1.1 This case was registered on 24-01-2001 on the complaint dt. 29-09-2000 of Sh. K. B. Mahapatra, Chief Vigilance Officer, National Insurance Company Ltd. (hereinafter referred to as NIC), Calcutta alleging that accused No. 1, Sh. Yash Pal Babbar, the then Asstt. Manager and accused No. 2, Sh. Moti Lal Mathur, the then Administrative Officer, both of NIC, Divisional Office-XIII, (hereinafter referred to as DO-XIII), New Delhi entered into a criminal conspiracy in the year 1998 with private persons/surveyors/tracers namely accused No. 4, Kailash Chand Jain, partner of M/s Arihant Trading Co., 2079, Tabacco Katra, Khari Baoli, Delhi-6, accused No. 5, S.K. Jain, Prop. M/s Amit Trading Co., 53/27, Nayaganj, Kanpur, accused No. 3, P.K. Gupta, Surveyor of M/s P. Gupta & Co., AS-16, Shiva Enclave, Paschim Vihar, Rohtak Road, New Delhi & accused No. 6, Ramesh Khaneja of M/s Globe Claims Recovery Consultants, A/390, Chokhandi, Tilak Nagar, and obtained Rs. 2,09,687/- from NIC, New Delhi on the basis of forged and bogus documents in favour of M/s Arihant Trading Co.
CBI Case No. 29/12 2 of 66 1.2 Investigation was conducted during which, inter-alia, statements
of witnesses were recorded, documents were seized and specimen handwritings/ signatures of suspects and questioned documents were got examined from the CFSL.
1.3 Investigation revealed as under :-
1.3.1 Accused No. 4, Kailash Chand Jain took a marine policy No. 4500308 for dispatch of 125 bags of gamber from M/s Amit Trading Co., 53/27, Nayaganj, Kanpur to the insured vide Goods Receipt (GR) No. 575 dt.
7-9-98 of M/s Shree Durga Carrier, A-105, Adhyapak Nagar, Nangloi, Delhi. The insured vide their letter dt. 11-9-98 intimated damage to the consignment, to NIC, DO-XIII, New Delhi.
1.3.2 Accused No. 1, Yash Pal Babbar appointed accused No. 3, P.K. Gupta as Surveyor on the letter dt. 11-09-98. Accused No. 3, P.K. Gupta, submitted survey report on 18-09-98. A claim form dt. nil duly filled by insured Kailash Chand Jain was submitted to NIC, DO-XIII, New Delhi and a claim file No. 45/98-98/29 of M/s Arihant Trading Co. was opened. The claim was processed by Moti Lal Mathur, the then A.O. and recommended for Rs. 2,09,687/- on 08-10-98. The claim was sanctioned by accused No. 1, Yash Pal Babbar on 9-10-98. The claim amount of Rs.2,09,687/- vide cheque No. 245008 dt. 13-10-98 of IOB, R.K. Puram, New Delhi was received by accused No. 4, K.C. Jain. The proceeds of the claim cheque were credited into C/A No. 48455 of the insured in the Bank of Madura, Connaught Place (ICICI Bank), New Delhi.
CBI Case No. 29/12 3 of 66 1.3.3 M/s Shree Durga Carrier was not existing at the given address
during the relevant period i.e. 1998. The premises is in possession of Ashok Kumar. Accused No. 5, S.K. Jain, Prop. of M/s Amit Trading Co., Kanpur is younger brother of accused No. 4, K.C. Jain and he could not produce any document in support of consignment of goods to accused No. 4, K.C. Jain of M/s Arihant Trading Co., New Delhi. Accused No. 6, Ramesh Khaneja of M/s Globe Claims Recovery Consultant was appointed as recovery agent/investigator. Vide cheque No. 97913 dt. 5-1-99 of PNB, Karol Bagh, New Delhi, Rs. 10,000/- were deposited as recovery amount. Cheque No. 245009 for Rs. 4,208/- was paid as recovery/investigation fee to Ramesh Khaneja.
1.3.4 The claim was processed on bogus/fake/forged documents which were fabricated by accused No. 4, Kailash Chand Jain in connivance with accused No. 1, Yash Pal Babbar, accused No. 2, Moti Lal Mathur, accused No. 3, P.K. Gupta, accused No. 5, S.K. Jain and accused No. 6, Ramesh Khaneja to receive an amount of Rs. 2,09,687/- from NIC, New Delhi. Thus a loss to the tune of Rs. 2,09,687/- to NIC, New Delhi and wrongful gain to the accused persons was caused.
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, 1988) and substantive offences thereof was filed against all the accused persons.
CBI Case No. 29/12 4 of 66 1.5 It may be mentioned that as per the documents/letter heads of
the insured/consignee, Arihant Trading Company, as available in the claim file, the name of the said consignee has been mentioned as "Arihant Trading Co.". However, the parties as well as the witnesses have at times referred to the same as "M/s Arihant Trading Company". There is no dispute that any reference to "M/s Arihant Trading Company" means "Arihant Trading Company." Thus, the consignee is being hereinafter referred to as "Arihant Trading Company". Same is the case with respect to "Globe Claims Recovery Consultants" and "P. Gupta & Company", which have been, at times, referred to by the parties and the witnesses as "M/s Globe Claims Recovery Consultants" and "M/s P. Gupta & Company".
2.1 Copies of documents were supplied to the accused persons in terms of Section 207 of the Cr.P.C.
Charges 3.1 Vide order dated 17-02-2004 of my Ld. Predecessor, charges were framed against the accused persons as under :-
a) against all the accused persons, u/s 120-B r/w sections 420/467/468/471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988,
b) against accused No. 1, Yash Pal Babbar u/s 13 (2) r/w section 13 (1) (d) of the PC Act, 1988,
c) against accused No. 2, Moti Lal Mathur u/s 13 (2) r/w section 13 (1) (d) of the PC Act, 1988,
d) against accused No. 3, Pramod Kumar Gupta u/s 468 IPC,
e) against accused No. 4, Kailash Chand Jain u/s 420 IPC and section 471 r/w CBI Case No. 29/12 5 of 66 sections 467 and 468 IPC, and
f) against accused No. 6, Ramesh Khaneja u/s 468 IPC.
The accused persons pleaded not guilty to the charges and claimed trial.
Prosecution Evidence 4.1 Prosecution has examined 22 witnesses to prove its case. PW-1 Sh. Kruti Bas Mahapatra, Chief Vigilance Officer, NIC, on whose instruction investigation was carried out, has filed complaint dated 29-09-2000, Ex. PW1/B with the CBI. PW-2 Sh. A. K. Seth, PW-3 Sh. A.K. Tiwari and PW-15 Sh. A.L. Gambhir, all officers of the Vigilance Department, NIC had conducted the investigation during which they had seized the files, including the claim file, Ex. PW2/A of Arihant Trading Company and given their report, Ex. PW1/A. 4.2 PW-9 Sh. P.K. Aggarwal, Administrative Officer, Vigilance Department, NIC has handed over nine marine claim files to the CBI vide seizure memo dated 08-02-2001, Ex. PW9/A. PW-11 Sh. C.D. Ram, Assistant, DO-XIII, NIC has handed over disbursement vouchers to the IO vide seizure memo dt. 11-12-2002, Ex. PW11/A. 4.3 PW-6 Sh. Vinod Kumar, Senior Assistant DO-XIII, NIC has testified, inter-alia, about the claim file of Arihant Trading Company and identified the signatures/handwritings of accused No. 1 Yash Pal Babbar and accused No. 2 Moti Lal Mathur on various documents in the said file viz. Notings, Ex/PW6/A and Ex.PW6/B on the inside front cover and inside back cover of the claim file, Ex.PW2/A, bill of Globe Claim Recovery Consultants, CBI Case No. 29/12 6 of 66 Ex.PW6/C, disbursement voucher dt. 13-10-1998, Ex.PW6/D, disbursement voucher dt. 13-10-1998, Ex.PW6/E, marine insurance policy, dt. 07-09-1998, Ex.PW6/F, carbon copy of marine policy, Ex.PW6/G, second carbon copy of marine policy, Ex.PW6/H, cover note, Ex.PW6/J, verification report, dt. 07-10-1998, Ex.PW6/K of Globe Claim Recovery Consultants, letter, dt. 11-09-1998, Ex.PW6/L of Arihant Trading Company, Cheque No. 245008, dt. 13-10-1998, Ex.PW6/M, issued by NIC in favour of Arihant Trading Company for Rs.2,09,687/- and cheque No. 245009, dt. 13-10-1998, Ex.PW6/N, issued by NIC in favour of Globe Claim Recovery Consultants. PW-13 Sh. Anupam Rai Gupta, Senior Assistant, DO-XIII, NIC has deposed about the documents required for preparation of claim processing note and about his handwriting on the cover of the claim file, Ex.PW2/A of Arihant Trading Company. PW-17 Smt. Parwati, Assistant, DO-XIII, NIC has deposed about her handwriting on the policy, Ex.PW6/F in respect of Arihant Trading Company.
4.4 PW-7 Ms. Vandana, Divisional Manager, DO-XIII has deposed about the documentation and procedure for settlement of marine claim, and deficiencies in the claim file, Ex. PW2/A. PW-10 Sh. R.C. Sood, Deputy Manager, Delhi Regional Office-I, NIC has deposed about his report, Ex.PW10/A. 4.5 PW-12 Sh. R. Vaidyanathan, Chief Manager, Indian Overseas Bank, where NIC was having current accounts no. 1194 and 1197, has deposed about handing over of the cheques vide letter dated 04-05-2002, Ex. PW12/A and statement of account, Ex. PW12/B of current account no. 1194 of NIC. PW-18 Sh. J.C. Jagadeesan, Officer, Zonal Office, ICICI Bank, Lodhi CBI Case No. 29/12 7 of 66 Road, New Delhi has deposed about handing over statement of account, Ex.PW18/A-1 of current account No. 48455 of Arihant Trading Company for the period 16-10-1998 to 17-10-1998 and account opening form, Ex. PW18/A-2 along with supporting documents of Arihant Trading Company vide letter dt. 10-04-02, Ex.PW18/A 4.6 PW-4 Sh. Sonu Gupta, PW-5 Sh. Shiv Saran and PW-14 Sh. Mohan Mehto have deposed about non existence of Shree Durga Carriers at A-105 A, Adhyapak Nagar, Nangloi, Delhi.
4.7 PW-8 Sh. A.K. Sinha, Surveyor at Kanpur had conducted verification, of the two invoices issued by M/s Amit Trading Company, 53/27, Naya Ganj, Kanpur, on the instructions of Sr. Divisional Manager, NIC, Kanpur and had given report, Ex.PW8/A. PW-21 Sh. Mohan Chandra Aggarwal, Sr. Divisional Manager, NIC, Kanpur has deposed about letter, dt. 15-06-1999, Ex.PW2/H, written to him by Sh. A.K. Seth, Vigilance Officer, Delhi Regional Office and letter, dt. 14-07-1999, Ex.PW2/J, written by him, vide which he had sent report, Ex.PW8/A of Sh. A.K. Sinha, Surveyor.
4.8 PW-16 Sh. Radhey Shyam Babbar, is uncle of accused No. 1, Yash Pal Babbar who has deposed about his daughter Sushma Rani having an agency of Oriental Insurance Company, Connaught Place, New Delhi in the year 1997 and his being a direct agent of LIC since 1957.
4.9 PW-19 Sh. Jyoti Kumar is the initial IO, PW -20 Sh. B.S. Bisht is the part IO and PW-22 Sh. R.P. Kaushal is the main IO. PW 23 Sh. N.K. CBI Case No. 29/12 8 of 66 Aggarwal is the Sr. Scientific Officer (Grade -I), CFSL, CBI who has examined the questioned documents and given his report, Ex. PW22/Q. Statement of Accused Persons 5.1 Statement/Additional statements of all the accused persons were recorded u/s 313 Cr.P.C. wherein they generally denied the incriminating evidence that has come against them.
5.2 Accused No. 1, Yash Pal Babbar has also stated that he has been falsely implicated in this case due to professional rivalry and jealousy with the Vigilance Department's Officers. They were antagonized with him since he had superseded the Vigilance Department's Officers namely Shri A.L. Gambhir and Shri A.K. Tiwari. Mr. Seth had ill will towards him as he was not made Divisional Manager and he (accused No.1) was posted as Divisional Manager in DO-XIII. When the claim documents were put to him for approval by his subordinates, the surveyor's report and all other documents including the verification report by the empanelled surveyor/investigator were there in the file and there was no question of mistrust. He had passed the claim in utmost good faith, within his financial powers, by following all the rules and regulations of NIC. It was not his duty to physically verify the claim documents or the consignment of goods. He always relied, in utmost good faith, upon the report of the surveyor, recovery agent, tracers, documents submitted by the claimant and the recommendations of his subordinates.
5.3 Accused No. 2, Moti Lal Mathur has stated that he has performed his duties of processing and recommending claims in his official CBI Case No. 29/12 9 of 66 capacity as Administrative Officer within his financial powers. He has based his recommendations on documents furnished. He has been made a scapegoat in the case whereas officials like him in the same office namely Sh. J.N. Vats and Sh. Anupam Rai Gupta had acted in identical manner and no case has been made against them. He has worked in compliance with company rules.
5.4 Accused No. 3, Pramod Kumar Gupta stated that he was appointed as a surveyor on 11-09-98 vide letter, Ex.PW6/L. It was informed to him that goods were damaged during transit. He accordingly went to the godown of the consignee at 18, Friends Colony, Industrial Area, Shahdara, conducted survey and took photographs of the damaged goods. He had submitted survey report, Ex.PW2/DA-1 along with photographs in the office of NIC. His role was limited only to this aspect and thereafter, he had no concern with processing and passing of the claim.
5.5 Accused No. 4, Kailash Chand Jain stated that there had been no inquiry and no investigation concerning him, and the IO without investigating the case properly has falsely launched prosecution against him. He was not the Proprietor/partner of Arihant Trading Company during the relevant period or at any subsequent period. He was not the account holder of the bank account of the said company with Bank of Madura Ltd., in which the alleged claim amount was credited. He did not benefit in any manner from the alleged claim and the alleged claim amount was not received by him and was not credited in any firm pertaining to him. He was not concerned with the alleged claim in question. Moreover, evidence on record shows that no CBI Case No. 29/12 10 of 66 investigation was done at Kanpur about transporter M/s Shree Durga Carriers to ascertain the booking of consignment at Kanpur.
5.6 Accused No. 5, Surinder Kumar Jain also stated that there had been no inquiry and no investigation concerning him, and the IO without investigating the case properly has falsely launched prosecution against him. He was never the Proprietor/Partner of Amit Trading Company, Kanpur and was not at all concerned with the sending of consignment in question to Delhi or the alleged claim in question. Moreover, evidence on record shows that no investigation was done at Kanpur about transporter M/s Shree Durga Carriers to ascertain the booking of consignment at Kanpur.
5.7 Accused No. 6, Ramesh Khaneja also stated that the witnesses have deposed under the influence of CBI. He had been paid fees by the NIC for the recovery effected by him. He has no other role in the case in question.
Defence Evidence 6.1 Accused No. 1, Yash Pal Babbar and accused No. 2, Moti Lal Mathur have examined two witnesses in their defence i.e. DW 1 and DW 2, besides themselves appearing as witnesses u/s 315 Cr.P.C. r/w Sec. 21 of the PC Act, 1988. DW 1 Ms. Yamini Luthra, Administrative Officer, Regional Office, NIC has deposed about destruction of record i.e. audit reports, confidential reports of accused No. 1 Yash Pal Babbar and accused No. 2 Moti Lal Mathur and cheque dishonour register, for the relevant period, in terms of company's circular dt. 23-04-2013, Ex.DW1/B. She has also stated about the applicability of Claims Procedural Manual, Ex.DW1/C before new CBI Case No. 29/12 11 of 66 guidelines were issued vide claims facilitation, Ex.DW1/A in the year 2007.
6.2 DW 2 Sh. Dinesh Gupta, Asstt. Manager, NIC, DO-XIII, has testified about destruction of record i.e. claim intimation register and the underwriting docket of the policy in terms of company's circular dt. 23-04-2013, Ex.DW1/B. 6.3 DW 3 Moti Lal Mathur has testified, inter-alia, that as an Administrative Officer he had no role in the appointment of Surveyor or the Verifier, but on the instruction of his Divisional Manager he took action. 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 are in consonance with the insurance particulars, the premium has been collected, the claim is covered within the scope of the Insurance Policy, whether details of packing if any are given in the proposal form and any adverse remark is given by the Surveyor or Verifier. If the above is found in order, the claim is recommended to the Divisional Manager. If the goods are insured and claim is filed within the validity of the Insurance policy, then, he cannot reject the claim provided all the documents are in order. No inquiry was made from him at any time by the Officers of NIC with regard to the present case or any other case at any point of time in which he has recommended the claim. In the present case he was fully within his power to process and recommend the claim. When the claim file, Ex.PW2/A was put up to him, all the required documents were available in the file and he had not called for any document. He had appointed Globe Claims Recovery CBI Case No. 29/12 12 of 66 Consultants for verification. They had given a report, Ex.PW6/K. Based on the said report, he had recommended the claim.
6.4 DW 4 Yash Pal Babbar has testified that he had sanctioned the claim within his financial power by following all the rules and regulations of NIC. It was not his duty to verify the claim documents or the consignment of goods. He always relied upon the reports of the surveyor/recovery agents/tracer, documents submitted by the claimant, in utmost good faith and the recommendations of his subordinate. He had never over ruled the objections raised by his subordinates and allowed clarifications if there was any objection. Field verification was not a part of his duty. He had never met accused Kailash Chand Jain or S.K. Jain or their agent/representative in his office during the processing of the present claim. There was also no requirement that the claimant should meet the Divisional Manager.
6.5 DW5 Ramesh Khaneja testified that accused M.L. Mathur had deputed him first as Investigator and after investigation, as Recovery Agent. He called him to his office and told him that investigation was to be done. After investigation was done, he told him that recovery was to be effected from the transporter Shree Durga Carriers. He was working as Proprietor of Globe Claims Recovery Consultants. He accordingly conducted investigation and submitted investigation report to accused M.L. Mathur. Thereafter, he made recovery from the above transporter and submitted the cheque of the recovery amount taken from the transporter to accused M.L. Mathur. Later, accused M.L. Mathur paid him his fees which was calculated at the rate of 50 percent of the recovery amount. The same was paid to him by cheque. He CBI Case No. 29/12 13 of 66 had done nothing else in this case.
Arguments on behalf of CBI 7.1 Sh. Manoj Shukla, Ld. PP has argued that prosecution has been able to prove its case against the accused persons beyond a reasonable doubt. PW4 Sh. Sonu Gupta, PW5 Sh. Shiv Saran and PW 14 Sh. Mohan Mehto have proved that Shree Durga Carriers did not exist at its given address. PW8 Sh. A.K. Sinha has proved his report, Ex.PW8/A regarding no consignment having been sent by Amit Trading Company, Kanpur to Arihant Trading Company, Delhi. PW 21 Sh. Mohan Chandra Aggarwal has proved sending of the report, Ex.PW8/A to Sh. A.K. Seth vide his letter, dt. 14-07-1999, Ex.PW2/J. PW2, Sh. A.K. Seth, PW3 Sh. A.K. Tiwari and PW 15 Sh. A.L. Gambhir have proved the seizure of the files including the claim file, Ex.PW2/A of Arihant Trading Company and their report, Ex.PW1/A. PW1 Sh. Kruti Bas Mahapatra has proved the complaint, dt. 29-09-200, Ex.PW1/B to the CBI. PW9 Sh. P.K. Aggarwal and PW11 Sh. C.D. Ram have proved handing over of document in question to the CBI. PW 6 Sh. Vinod Kumar has proved the claim file, Ex.PW2/A and handwriting/ signatures of accused No. Yash Pal Babbar and accused No. 2, Moti Lal Mathur in the said file. PW 7 Ms. Vandana and PW 10 Sh. R.C. Sood have proved the procedure followed in settlement of claims. PW 12 Sh. R. Vaidyanathan has proved the statement of account, Ex.PW12/B of current account No. 1194 of NIC. PW 18 Sh. J.C. Jagadeesan has proved the statement of account, Ex.PW18/A-1 and account opening form along with supporting documents, Ex.PW18/2 of Arihant Trading Company. Ld. P.P. further submitted that PW19 Sh. Jyoti Kumar, PW 20 Sh. B.S. Bisht and PW 22 Sh. R.P. Kaushal have proved the investigation CBI Case No. 29/12 14 of 66 conducted by them. PW 23 Sh. N.K. Aggarwal, Sr. Scientific Officer (Grade
-I), CFSL, CBI has proved the initials of accused No. 4, K.C. Jain on the letter heads of Arihant Trading Company as opined in his report, Ex. PW22/Q. He also argued that besides the direct evidence, the circumstantial evidence brought on record prove that all the accused persons had conspired to cheat NIC.
Arguments on behalf of Accused No. 1, Yashpal Babbar and accused No. 2, Moti Lal Mathur.
8.1 Sh. Umesh Sinha, Ld. counsel for accused No. 1, Yashpal Babbar and Sh. Shaju Francis, Ld. counsel for accused No. 2, Moti Lal Mathur have advanced arguments on similar lines. It is argued that every misconduct by a public servant is not covered under Section 13 (1) (d) of the P.C. Act, 1988. Under the said section, it is essential to prove that the public servant obtained for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position or while holding the office as public servant and without any public interest. In this regard, reliance has been placed upon the judgment of the Hon'ble High Court of Delhi in A.K. Ganju Vs. CBI (Crl. M.C./2384/2011) passed on 22-11-2013, Anil Maheshwari Vs. CBI, 2013 (136) DRJ 249, State of M.P. Vs. Sheetal Sahai, 2009 Cr. L.J. 4436 and Prem Chand Vs. Govt. of NCT of Delhi & Ors., AIR 2007 SCW 2532. While relying upon Anil Kumar Bose Vs. State of Bihar MANU/0097/1974 Cri.L.J. 1026, it is argued that failure on the part of the employees to perform their duties or to observe rules of procedure laid down in the duty chart in a proper manner may be an administrative lapse or error of judgment which, per-se, cannot be equated CBI Case No. 29/12 15 of 66 with dishonest intention. It is further argued that accused has done everything in good faith and thus he is protected by Rule 38 of the General Insurance Business Nationalization Act, 1972. It is also argued that there was delay in lodging FIR for which no plausible explanation has been given. In this regard, reference has been made to Kishan Singh through L.R.s Vs. Gurpal Singh & Others, AIR 2010 SC 3624. It is also argued that no preliminary enquiry was conducted by the CBI, which is mandatory as per Lalita Kumari Vs. Govt. of U.P. & Others, 2013 (13) SCALE 559 and Ripun Bohra Vs. CBI, (2012) ILR-I, Delhi 412. It is further argued that out of one FIR/RC, different charge sheets could not have been filed.
8.2 It is contended that the complete chain of sanctity of documents was not preserved as no inventory of the documents seized was prepared either by the Officers of Vigilance Department or the IO. The Statutory presumption under Section 20 of the P.C. Act is not available in the instant case. Rather, an adverse inference in terms of illustration (g) to section 114 of the Indian Evidence Act, 1872 has to be drawn against the prosecution as the IO has not deliberately seized various circulars, audit reports, claim intimation register, dispatch register, circulars, empanelment list, municipal record, transporter's association record, under writing files, accounts branch files etc. which could have brought the true facts on record. There are contradictions in the statements of witnesses. The depositions of PW 10 Sh. R.C. Sood and PW 7 Ms. Vandana cannot be relied upon since they are neither expert witnesses nor direct witnesses of any fact. The report of PW 10 Sh. R.C. Sood is hit by Section 162 of the Cr.P.C. Ld. counsels further argue that Section 64 VB of the Insurance Act has been duly complied with and the prosecution is CBI Case No. 29/12 16 of 66 wrongly stating that the same has not been complied with. It is also argued that the accused has not been charge sheeted by the department which shows his innocence. Accused No. 1, Yash Pal Babbar being the Head of office had no role in giving policy to the claimant or in any field verification while passing the claim. He had sanctioned/recommended the claim within his financial powers on the basis of report of the surveyor. Accused No. 2, Moti Lal Mathur also acted within his powers and as per company's rules. Ld. counsels further argue that though the verifier Ramesh Khaneja has denied his report, he has not disputed his appointment, acknowledgment of receipt of various documents for affecting the recovery and the receipt of fee from the insurance company.
8.3 It is further argued that no explanation was sought from the accused either by the vigilance team while preparing their report or by the IO to explain the circumstances under which the claims were passed. There has been no violation of rules and regulations of the company. There is no bar in the Claim Procedural Manual for appointment of a tracer/investigator as recovery agent, as has been done in this case. It is also argued that the officials of Accounts Department have duly verified the claims, however, the accounts files were not seized by the IO. The mandatory sanction for offences under Section 420, 467, 468, 471 read with Section 120-B IPC has not been obtained for prosecution of the accused/public servant. It is further argued that the evidence led by accused persons in their defence ought to be treated at par with the prosecution evidence. It has also been argued that no witness stated that accused No. 1, Yashpal Babbar or accused No. 2, Moti Lal Mathur has committed any irregularity. The investigation was done with regard to CBI Case No. 29/12 17 of 66 invoice No. 6406. However, no enquiry was done with regard to the actual invoice No. 6408. There was no guideline to test the genuineness of documents. The Officers dealt with the claim on the basis of documents put up by the subordinate staff. The payment was made to the claimant firm by cheque and not to any individual. No investigation was done with regard to the truck or from the RTO. The books of account of Amit Trading Company were not seized. Ld. counsels have also referred to 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.
Arguments on behalf of Accused No. 3, Pramod Kumar Gupta CBI Case No. 29/12 18 of 66 8.4 Sh. H.S. Sharma, counsel for accused No. 3 Pramod Kumar Gupta has argued that there is no evidence against the said accused as neither the vigilance officers nor the IO has visited 18-A, Friends Colony, where the goods were offloaded. He had diligently done the survey and filed his report along with the photographs taken by him. His duty was only to visit the addresses provided by claimant to the insurance company to assess the loss. All the three vigilance officers had not found anything against the said accused. There is no evidence to connect accused No. 3, Pramod Kumar Gupta with any conspiracy.
Arguments on behalf of Accused No. 4, Kailash Chand Jain 8.5 Sh. C.S. Sharma, Ld. counsel for accused No. 4, Kailash Chand Jain has argued that there is no evidence to link accused No. 4, Kailash Chand Jain with the case. Prosecution has tried to involve accused No. 4, Kailash Chand Jain by expert opinion on the authorship of the signatures on the two letters of Arihant Trading Company. However, none of the sheets S-44 to S-50 contain any signatures/initials of PW 19 Sh. Jyoti Kumar in token of the specimen signatures of accused No. 4, Kailash Chand Jain having been taken in his presence. On the other hand, in its zeal to falsely implicate accused No. 4, Kailash Chand Jain, PW 22 Sh. R.P. Kaushal stated that certain portion of S-46 & S-47 was in the handwriting of PW 19 Sh. Jyoti Kumar though as per PW 19 Sh. Jyoti Kumar, it was not so. Further PW 19 Sh. Jyoti Kumar in his cross-examination has stated that he has handed over the charge of this case to Sh. R.P. Kaushal in the month of February 2002 and that he was not involved in the investigation after February 2002. However, according to PW 9 Sh. P.K. Aggarwal, the alleged specimen writings were CBI Case No. 29/12 19 of 66 taken on 08-04-2002, which belies the prosecution version. It is also argued that PW 9 Sh. P.K. Aggarwal had stated that he would have gone to CBI office in connection with this case for about 3-4 times. However, according to PW 22 Sh. R.P. Kaushal, he has visited CBI office only once in connection with this case. No proceedings have taken place in presence of PW 9 Sh. P.K. Aggarwal. It is further argued that as per report of PW 23 Sh. N.K. Aggarwal, the questioned initials Mark Q-282 and Q-293 are consistent with the specimen initials Mark S-44 to S-47, purportedly written by accused No. 4, Kailash Chand Jain in detailed manner of execution of strokes comprising them. However, he has not given a definite opinion. During his cross- examination, he stated that he has not given reasons while examining questioned initials. He admitted that positive opinion cannot be given on initials and that for comparison, contemporary documents are the best sources. In this case, no contemporary documents written by accused No. 4, Kailash Chand Jain had been supplied. During his re-examination, PW 23 Sh. N.K. Aggarwal stated that the word " consistent" is used for report only when no sufficient individual identifying handwriting characteristics are present in the questioned material. Ld. counsel thus argued that the deposition of handwriting expert is of no relevance in this case. It has been also argued by Sh C.S. Sharma that there is no evidence that the consignment was not sent from Kanpur to Delhi. Accused No. 4, Kailash Chand Jain is not a partner of Arihant Trading Company and the claim amount has not been credited in his account. As per the account opening form of Arihant Trading Company, Ex. PW18/A-2, Sh. Kamal Chand Jain and Sh. Ravinder Kumar Jain are the partners of Arihant Trading Company. Even the partnership deed, Ex. PW18/D-A does not find any mention of accused No.4, Kailash Chand Jain as CBI Case No. 29/12 20 of 66 partner. It is also argued that neither the invoice in question is on record nor there is any evidence that accused No.4, Kailash Chand Jain used the said invoice or GR. Further, investigation by the vigilance officers has been carried out with regard to invoice No. 6406 and not the actual invoice No. 6408. The mere fact that he has introduced the account or that the address of Arihant Trading Company was the same as his does not mean that he is involved in the affairs of Arihant Trading Company. No witness stated that claim cheque was received by accused No.4 Kailash Chand Jain and no receipt of the said cheque has been produced.
Arguments on behalf of Accused No. 5, Surinder Kumar Jain 8.6 Sh. C.S. Sharma, counsel, on behalf of accused No. 5, Surinder Kumar Jain, has argued that accused No. 5, Surinder Kumar Jain was never the proprietor/partner of Amit Trading Company during the relevant period. No evidence has been produced by the prosecution to show that he was proprietor/partner of M/s Amit Trading Company. PW2 Sh A.K. Seth not only stated that he did not meet accused No. 5, Surinder Kumar Jain but also deposed that he does not remember as to from where he got the address of Amit Trading Company and he did not have any other document other than the claim file, Ex. PW2/A at the time of verification of the claim in question. Neither the claim file, Ex. PW2/A nor the verification report, Ex. PW1/A contain the address of Amit Trading Company. Even otherwise the prosecution has failed to establish allegation since the investigation was done with regard to invoice No. 6406 and not the invoice in question i.e invoice No. 6408. Further, no inquiry was conducted at 18-A, Friends Colony, Industrial Area, Shahdara. According to PW3 Sh Anil Kumar Tiwari, no registered letter CBI Case No. 29/12 21 of 66 was sent to any transporter, surveyor, consignee, recovery agent to verify their addresses. No investigation was conducted with regard to goods receipt No. 575 dated 07-09-1998 and truck No. HR-26-7545 used for transportation of the consignment from Kanpur to Delhi or M/s Shree Durga Carriers at Kanpur from where the goods were transported to Delhi. Any statement allegedly given by accused No. 5, Surinder Kumar Jain to the police officers is hit by section 25 Indian Evidence Act and section 162 Cr. P.C. and is inadmissible. Thus, there is no admissible evidence against accused No. 5, Surinder Kumar Jain.
Arguments on behalf of Accused No. 6, Ramesh Khaneja. 8.7 Sh. Bhola Singh, counsel from DLSA, for accused No. 6 Ramesh Khaneja has argued that only accused No. 6, Ramesh Khaneja was entitled to sign the investigation report. However, the report in the instant case has been signed by one Lalit Kumar, which is not the report of the said accused. He was working alone and was not having any employee/agent. No opinion of CFSL has been obtained regarding the authorship of the signatures on the report, Ex.PW6/K. He has been falsely implicated by misuse of his letterhead. He has done the work assigned to him by NIC as per the documents supplied by NIC. The actual investigation report prepared and submitted by him to the NIC is not on record. It is further argued that prosecution has not been able to prove that the transport company i.e. M/s Shree Durga Carriers was not existing at its given address as mere evidence of few persons that they do not know about the transport company does not mean that it does not exist.
CBI Case No. 29/12 22 of 66
8.8 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 were required to be determined:-
A. Charge u/s 120-B r/w Section 420, 467, 468, 471 IPC and Section 13 (2) r/w Section 13 (1) (d) of the PC Act, against all the accused persons namely accused No. 1, Yash Pal Babbar, accused No. 2, Moti Lal Mathur, accused No. 3, Pramod Kumar Gupta, accused No. 4, Kailash Chand Jain, accused No. 5, Surinder Kumar Jain and accused No. 6, Ramesh Khaneja.
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 Pramod Kumar Gupta, accused No. 4, Kailash Chand Jain, accused No. 5, Surinder Kumar Jain and accused No. 6, Ramesh Khaneja 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 Arihant Trading, Delhi under the Proprietorship of accused No. 4, Kailash Chand Jain to the extent of Rs.2,09,687/- 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. 4,
CBI Case No. 29/12 23 of 66
Kailash Chand Jain obtained marine policy No. 4500308 for dispatch of 125 bags of gamber from Amit Trading Company, Kanpur to Arihant Trading Company, Delhi vide GR No. 575 of M/s Shree Durga Carriers, a non-existing transport company and intimated the damage of consignment to NIC Ltd., DO-XIII, New Delhi, and accused No. 3, Pramod Kumar Gupta was appointed a surveyor, who submitted a false survey report and accused No. 4, Kailash Chand Jain submitted claim form on behalf of Arihant Trading Company, and accused No. 2, Moti Lal Mathur recommended the claim amount, and accused No. 1, Yash Pal Babbar approved the claim amount of Rs.2,09,687/- in favour of Arihant Trading Company on the basis of above mentioned false/bogus/forged documents, and accused No. 4, Kailash Chand Jain received cheque of claim amount from NIC, New Delhi and the claim amount was credited in Account No. 48455 of Arihant Trading Company, and accused No. 5, Surinder Kumar Jain, Proprietor of Amit Trading Company and younger brother of accused No. 4, Kailash Chand Jain did not send the consignment to Arihant Trading Company, and accused No. 6, Ramesh Khaneja of Globe Claims Recovery Consultants was appointed as recovery agent/investigator but he did not investigate or recover the money but submitted false report and raised false bill before NIC, DO-XIII, New Delhi.
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.
2,09,687/- for accused No. 4, Kailash Chand Jain of Arihant Trading Company CBI Case No. 29/12 24 of 66 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. 209687/- for accused No. 4, Kailash Chand Jain of Arihant Trading Company and caused corresponding loss to the NIC by inducing 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. 1, Moti Lal Mathur did as above by use of illegal means and abuse of his official position?
D. Charge u/s 468 IPC against accused No. 3, Pramod Kumar Gupta.
(i) Whether during the period 1998, at Delhi and other places, accused No. 3, Pramod Kumar Gupta, being Proprietor of P. Gupta & Company was appointed as Surveyor, in the claim of Arihant Trading Company?
(ii) If so, whether accused No. 3, Pramod Kumar Gupta committed forgery by submitting a false survey report to NIC, DO-XIII, New Delhi without carrying out the survey?
(iii) If so, whether accused No. 3, Pramod Kumar Gupta intended that the aforesaid document i.e. false survey report shall be used for the purpose of cheating NIC?
CBI Case No. 29/12 25 of 66 E. Charge u/s 420 IPC against accused No. 4, Kailash Chand Jain.
(i) Whether during the period 1998-99 at Delhi and other places, accused No. 4, Kailash Chand Jain deceived NIC, DO -XIII, New Delhi?
(ii) If so, whether accused No. 4, Kailash Chand Jain induced NIC, DO -XIII, New Delhi to sanction insurance claim of Rs.2,09,687/- in favour of Arihant Trading Company on the basis of false/bogus/forged documents i.e. Invoice, GR, survey report, etc. ?
(iii) If so, whether accused No.4, Kailash Chand Jain had induced NIC, DO
-XIII, New Delhi as above dishonestly?
(iv) If so, whether accused No. 4, Kailash Chand Jain received the cheque of claimed amount which was credited in account No. 48455of Arihant Trading Company of which he was the Proprietor?
F. Charge u/s 471 r/w section 467 & 468 IPC against accused No. 4, Kailash Chand Jain.
(i) Whether during the period 1998-99, at Delhi and other places, accused No. 4, Kailash Chand Jain used false/forged/bogus documents i.e. invoice, GR, Survey Report etc., as genuine for inducing NIC, DO -XIII, New Delhi to sanction insurance claim of Rs.2,09,687/- in favour of Arihant Trading Company 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? G. Charge u/s 468 IPC against accused No. 6, Ramesh Khaneja.
(i) Whether during the period 1998, at Delhi and other places, accused No. 6, Ramesh Khaneja, being Proprietor of Globe Claim Recovery Consultants was appointed as Investigator/Recovery Agent in the claim of Arihant Trading CBI Case No. 29/12 26 of 66 Company?
(ii) If so, whether accused No. 6, Ramesh Khaneja Gupta committed forgery by submitting a false investigation report to NIC, DO-XIII, New Delhi without carrying out the investigation?
(iii) If so, whether accused No. 6, Ramesh Khaneja intended that the aforesaid document i.e. false investigation 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 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 CBI Case No. 29/12 27 of 66 515]. 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 crime, higher the proof." [vide Sharad Birdhichand v. State of Maharashtra, 1984 Cri LJ 1738.] 10.4 In criminal matters, the prosecution is required to prove its case beyond a reasonable doubt. A benefit of doubt is the condition of the mind which exists where the judges cannot say that they feel an abiding condition, a moral certainty of the truth of the charge. It must not be a mere doubt of a vacillating mind that has not the moral courage to decide upon a difficult and complicated question and therefore, takes shelter in an idle scepticism (vide 1977 CrLJ 59) 10.5 It is also 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.
CBI Case No. 29/12 28 of 66 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 Further, it is well settled that criminal conspiracy is often hatched in secrecy and for proving the offence, it may not be possible to obtain substantial direct evidence. An offence of criminal conspiracy can also be proved by circumstantial evidence. However, it cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence. Where the prosecution case rests merely on circumstantial evidence, the facts established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. However, on the basis of evidence led by prosecution, if two views are CBI Case No. 29/12 29 of 66 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 CBI Case No. 29/12 30 of 66 evidence for or against him in any other enquiry into, or trial for, any other offence which such answers may tend to show he has committed. It is well settled that admission or confession of the accused in the statement under section 313, Cr PC in the course of trial can be acted upon and the court can rely on these confessions to proceed to convict him. In this regard reference can be made to Dharnidhar v. State of Uttar Pradesh, (2010) 7 SCC 759 and State of Maharashtra v. Sukhdev Singh, AIR 1992 SC 2100.
10.10 It is also well settled that evidence of one accused or admission or action or statement made by one of the accused can be used as evidence 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
CBI Case No. 29/12 31 of 66
appreciated.
Facts Not in Dispute
11.1 From the evidence and other material on record and arguments
advanced by the parties, there appears to be no dispute about the following facts :-
(a) Accused No. 1, Yash Pal Babbar was a public servant i.e. Assistant Manager, NIC, DO-XIII, New Delhi.
(b) Accused No. 2, Moti Lal Mathur was a public servant i.e. Administrative Officer, NIC, DO-XIII, New Delhi.
(c) Policy No. 360600/21/4500308/98 dated 07-09-1998, Ex.PW6/F for consignment of gamber from Amit Trading Company, Kanpur to Arihant Trading Company, Delhi, vide GR No. 575 of Shree Durga Carriers was obtained in the name of Arihant Trading Company, 2079, Tobacco Katra, Khari Baoli, Delhi.
(d) Arihant Trading Company purportedly intimated damage to consignment to NIC, DO-XIII, New Delhi vide letter dated 11-09-1998, Ex.PW6/L.
(e) Accused No. 1, Yash Pal Babbar appointed accused No. 3, Pramod Kumar Gupta as a Surveyor, as per his endorsement on letter dated 11-09-1998, Ex.PW6/L of Arihant Trading Co.
(f) Accused No. 3, Pramod Kumar Gupta submitted his report dated 18-09-1998, Ex.PW2/DA-1.
(g) Accused No. 3, Pramod Kumar Gupta submitted survey fee bill dated 18-09-1998 for Rs. 3,299/- to NIC Ltd., DO-XIII, New Delhi.
(h) Accused No. 6, Ramesh Khaneja of Globe Claims Recovery Consultants was purportedly appointed as investigator/verifier.
CBI Case No. 29/12 32 of 66
(i) Verification report dated 07-10-1998, Ex.PW6/K of Globe Claims
Recovery Consultants was submitted to NIC, DO-XIII, New Delhi.
(j) Accused No. 6, Ramesh Khaneja submitted verification bill dated 07-10-1998, Ex.PW6/C for Rs. 4,240/- to NIC, DO-XIII, New Delhi.
(k) The claim was processed and recommended by accused No. 2, Moti Lal Mathur for Rs. 2,09,687/-and the same was sanctioned by accused No. 1, Yash Pal Babbar on 09-10-1998.
(l) Claim amount of Rs. 2,09,687/-, vide disbursement voucher No. 2367 dated 13-10-1998, Ex.PW6/E and cheque No. 245008 dated 13-10-1998, Ex.PW6/M was paid to Arihant Trading Company.
(m) An amount of Rs. 4,028/-, vide cheque No. 245009 dated 13-10-1998, Ex. PW6/N and disbursement voucher No. 2368, Ex. PW6/D was paid as fee to accused No. 6, Ramesh Khaneja.
(n) Accused No. 6, Ramesh Khaneja of Globe Claims Recovery Consultants was purportedly appointed as recovery agent.
(o) Recovery fee bill No. 50 dated 18-10-1998, Ex.DW5/D-1 for Rs.1,550/- was submitted by accused No. 6, Ramesh Khaneja to NIC, DO-XIII.
(p) An amount of Rs. 10,000/- was deposited purportedly as recovery amount vide receipt dated 11-01-1999, Ex.PW3/DA.
Facts in Dispute.
12.1 However, the following facts are in dispute :-
(a) Accused No. 4, K.C. Jain was Proprietor/Partner of Arihant Trading Company.
(b) Accused No. 5, S.K. Jain was the Proprietor of Amit Trading Company, Kanpur.
CBI Case No. 29/12 33 of 66
(c) Shree Durga Carriers did not exist at its given address i.e. A-105,
Adhyapak Nagar, Nangloi, Delhi.
(d) Amit Trading Company, Kanpur had not sent any consignment of
gamber to Arihant Trading Company, Delhi vide invoice No. 6408 dated 04-09-1998 and GR No. 575 dated 07-09-1998 through Shree Durga Carriers.
(e) Survey report dated 18-09-1998, Ex.PW2/DA-1 of accused No. 3, Pramod Kumar Gupta of P. Gupta and Company is false and he falsely claimed survey fee vide bill dated 18-09-1998 for Rs. 3,299/-.
(f) Verification report dated 07-10-1998, Ex.PW6/K of Globe Claims Recovery Consultants is false and he falsely claimed verification fee vide bill dated 07-10-1998, Ex.PW6/K for Rs. 4,240/-.
(g) No recovery has been made from any Shree Durga Carriers by accused No. 6, Ramesh Khaneja of Globe Claims Recovery Consultants and he falsely claimed recovery fee vide bill dated 18-10-1998, Ex. DW5/P-1 for Rs. 1,550/-.
Appreciation of Evidence 13.1 The main fact in issue in this case is whether there was any damage to consignment of gamber purportedly sent by Amit Trading Company, Kanpur to Arihant Trading Company, New Delhi through Shree Durga Carriers, as covered by the Insurance policy. The essential requisites of purported damage to consignment are existence of Amit Trading Company, Kanpur, existence of Arihant Trading Company, Delhi, existence of Shree Durga Carriers, sending of consignment of gamber and damage to the said consignment. If any of the above requirement is disproved, it would, by necessary implication follow that there was no damage to consignment and that the claim amount had been fraudulently obtained.
CBI Case No. 29/12 34 of 66
13.2 Prosecution has led evidence and Ld. PP has advanced
arguments 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 relevance. It is pertinent to note that the claim files were the record of DO-XIII, NIC. The officer of DO- XIII from whose custody, the said files were seized for the first time has not been examined by the prosecution to prove that complete record, as available at the time of sanction of claim, was seized. 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. Thgerefore, the above contention of the Ld. P.P. 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 Anil Maheshwari Vs. CBI (supra).
Non existence of Shree Durga Carriers 13.3 It is pertinent to mention that goods receipt No. 575 of Shree Durga Carriers is not on record. However, as per the verification report, Ex.PW6/K, the address of Shree Durga Carriers has been mentioned as A-105 A, Ayodhya (sic Adhyapak) Nagar, Nangloi, Delhi. This is the address from where accused No. 6, Ramesh Khaneja purportedly made recovery from Shree Durga Carriers. When the incriminating evidence which has come CBI Case No. 29/12 35 of 66 during deposition of PW4 Sh. Sonu Gupta and PW5 Sh. Shiv Sharan, to the effect that Shree Durga Carriers was not existing at 105-A, Adhyapak Nagar, Nangloi, Delhi, was put to accused No. 6, Ramesh Khaneja during his statement u/s 313 Cr.P.C., he categorically stated that M/s Durga Carrier used to exist at 105-A, Adhyapak Nagar, Nangloi, Delhi. It thus, appears that in the verification report, the word " Ayodhya" has been wrongly typed in place of " Adhyapak" .
13.4 PW 4 Sh. Sonu Gupta deposed that he was running the business of property dealing/ building material since 1985 at A-86, Adhyapak Nagar, Nangloi, Delhi. 105-A, Adhyapak Nagar is adjacent to his office. There is no transport company in the name of M/s Durga Carriers at 105-A, Adhyapak Nagar, Nangloi, during 1985 till date. He had sold maximum property in the area of Adhyapak Nagar. Plot No. 105-A, Adhyapak Nagar belongs to Sh. Kochhar. During his cross-examination, he stated that house No. of PW Sh. Shiv Sharan is A-96, Adhyapak Nagar. There is no house in between the house of PW Sh. Shiv Sharan and house No. 105-A, Adhyapak Nagar and they have a common wall in between. House No. 105-A, Adhyapak Nagar is about 100 ft. away from his shop. He further stated that he was certain that there was no office of Durga Carrier at the said address as his shop is in that locality and in the near vicinity of house No. 105-A since many many years and in case there had been any such transport office, he would have definitely known about it.
13.5 PW 5 Sh. Shiv Sharan testified that he was residing at A-96, Adhyapak Nagar for the last 7-8 years. House No. 105-A, Adhyapak Nagar, CBI Case No. 29/12 36 of 66 Nangloi is adjacent to his house. He never saw any office/working place of the firm Shree Durga Carrier (Transport) at 105-A, Adhyapak Nagar, Nangloi, Delhi till date. He further stated that plot No. 105-A, Adhyapak Nagar was earlier owned by one Praveen Kochhar and now it seems to have been sold 5-6 years back to some other person. During his cross-examination, he stated that he could not say as to how many transport companies have their offices in Adhyapak Nagar, however, there was no office of any transport company in the near vicinity of his house. He further stated that his house number is 96 but Adhyapak Nagar being a kachhi colony, the numbering of the houses has not been given sequentially and house No. 105-A, is exactly adjoining his house. He also stated that house No. 105-A was/is built up property and family of its owner Praveen Kochhar used to stay there.
13.6 PW 14 Sh. Mohan Mehto, who worked as Postman from the year 1992 till 2004 in Nangloi area, and used to distribute dak in Adhyapak Nagar area testified that as per his knowledge, there was no company in the name of Shree Durga Carriers at A-105 A, Adhyapak Nagar, Nangloi, Delhi. He has not distributed dak to the said company and that it was a residential house. During his cross-examination, he stated that he was the only Postman in his beat. In work exigencies, other Postmen were also deputed to the same beat. He admitted that during the last 25 years, the work of distribution of dak through postal department is gradually reducing as it is being shifted to the private couriers. He admitted that he used not to enter the house to find out if it was a residence or business set up. He states that the premises was being used for residential or commercial purposes by the fact that there used to be a signboard in the premise used for commercial purposes. He also admitted CBI Case No. 29/12 37 of 66 that the basis of his saying that the above firm was not existing at the given address was that he never got any letter addressed to the said firm during his tenure. He also admitted that he had not received any letter addressed to the above firm which he had returned noting therein that no such firm exists at the said address.
13.7 DW 5 Ramesh Khaneja has testified that after investigation was done, accused M.L. Mathur told him that recovery was to be effected in this case from the transporter M/s Shree Durga Carriers. He accordingly conducted investigation and submitted investigation report to Sh. Moti Lal Mathur. Thereafter he made recovery from the above transporter and submitted the cheque of the recovery amount taken from the transporter to Sh. Moti Lal Mathur. During his cross-examination, he denied that there was no transporter by the name of Shree Durga Carrier at A-105 A, Adhyapak Nagar, Nangloi, Delhi. He also testified that he does not remember the amount of recovery made by him in this case. He does not remember name of the transporter whom he had met for making recovery. He also stated that he does not remember the address of M/s Durga Carrier since the matter is quite old. It can be seen that accused No. 6, Ramesh Khaneja is unable to state even the amount of recovery made by him or the name of the transporter from whom he had made recovery.
13.8 It is pertinent to note that the only address of Shree Durga Carriers available with the CBI/prosecution was A-105 A, Adhyapak Nagar, Nangloi, Delhi. Such a transport company, if it existed, in the normal course of business and human conduct would have been known to the neighbours and CBI Case No. 29/12 38 of 66 the concerned postman. According to PW 4 Sh. Sonu Gupta, PW 5 Sh. Shiv Sharan and PW 14 Sh. Mohan Mehto, no such transporter existed at the said address. Their testimonies have gone unrebutted and unimpeached. PW 4 Sh. Sonu Gupta who was running the business of property dealing/building material since 1985 at A-86, Adhyapak Nagar, Nangloi, which is in the close vicinity of A-105 A, Adhyapak Nagar categorically stated that he had sold maximum property in the area of Adhyapak Nagar and that plot No. 105A, Adhyapak Nagar belongs to Sh. Kochhhar. During his cross-examination, he asserted that there was no office of Durga Carriers at the above address. His knowledge of the area in general and about plot No. 105 in particular cannot be disbelieved. Similarly PW 5 Sh. Shiv Sharan, a resident of A-96, Adhyapak Nagar whose house was, as per him and as per PW 4 Sh. Sonu Gupta, adjacent to house No. 105 A, Adhyapak Nagar, Nangloi, having a common wall, clearly stated that he never saw any office / working place of the firm Shree Durga Carriers (Transport) at 105A, Adhyapak Nagar, Nangloi, Delhi. He also stated that the said plot was earlier owned by one Praveen Kochhar. It is considered that being immediate neighbour of 105-A, Adhyapak Nagar, Nangloi, Delhi, he would have known if there was any office / working place of Shree Durga Carriers at 105 A, Adhyapak Nagar, Nangloi, Delhi. Likewise, in the normal course of his official duties, PW 14 Sh. Mohan Mehto, being Postman of the concerned area, ought to have known if the aforesaid transport company existed at A-105 A, Adhyapak Nagar, Nangloi, Delhi. From the testimonies of the above witnesses, which have gone unimpeached, it can be safely concluded that Shree Durga Carriers did not exist at A-105 A, Adhyapak Nagar, Nangloi, Delhi during the relevant period. Prosecution has, beyond a reasonable doubt, disproved the existence of Shree Durga Carriers, CBI Case No. 29/12 39 of 66 at the relevant time, at its given address.
13.9 Since there was no Shree Durga Carriers at its given address, there was no question of consignment of gamber by Amit Trading Company, Kanpur to Arihant Trading Company, Delhi through such transporter.
Role of accused No. 3, Pramod Kumar Gupta and Survey Report 13.10 It is pertinent to note that in the marine survey report dated 18-09-98, Ex.PW2/DA-1, submitted by accused No. 3, Pramod Kumar Gupta, in para 3 (c), the name of the carrier has been mentioned as M/s Shree Durga Carriers. In para 6 (a) of the report, it is stated that LR/RR has been inspected. In para 6 (b), it is stated that reference to the condition of goods has been endorsed on the back of the GR. Further, in para 11, the LR No. has been mentioned as 575 dated 07-09-98. In the schedule to the report, it is stated that the consignment was transported from Kanpur to Delhi by truck No. HR/26/7545. Thus, it is clear that as per the report, accused No. 3, Pramod Kumar Gupta was fully aware that he was to make assessment of the damage to consignment purportedly transported through Shree Durga Carrier vide GR/LR No. 575 dated 07-09-98 in truck No. HR/26/7545. Once it has been proved that no transport company in the name of Shree Durga Carriers existed at its given address, there was no question of the consignment in question or the inspection of GR/LR. Thus, the report with regard to the purported consignment has to be, by necessary implication, false. There was neither any Shree Durga Carriers nor the consignment in question. It is not the case of accused No. 3, Pramod Kumar Gupta that he was misled or cheated by the owner of Arihant Trading Company to believe that any goods CBI Case No. 29/12 40 of 66 shown to him were the ones consigned as above, or covered by the policy in question or that the Goods Receipt or Lorry Receipt shown to him, on the back of which he has endorsed condition of goods, was forged. The prosecution having discharged its initial burden of proving that no such consignment was sent, it was for the accused persons to prove the affirmative, as asserted by them. No evidence in this regard has been led by the accused persons. Ergo, it is considered that the prosecution has been able to prove that accused No. 3, Pramod Kumar Gupta has given a false report. Further, in the circumstances of the case, he would not have given false report unless he was in conspiracy with other accused persons.
Role of accused No. 6, Ramesh Khaneja, verification report and recovery from transporter 13.11 Globe Claims Recovery Consultants, of which accused No. 6, Ramesh Khaneja is the Proprietor, was purportedly appointed as verifier. The report, Ex.PW6/K of Globe Claims Recovery Consultants has been purportedly signed by one Lalit Kumar. Ld. counsel for accused No. 6, Ramesh Khaneja submitted that the verification report, dated 07-10-98 Ex.PW6/K was signed by one Lalit Kumar and not by the said accused and thus, he was not liable for the same. In his statement u/s 313 Cr.P.C., accused No. 6, Ramesh Khaneja has stated that he had been paid fees by the NIC for the recovery effected by him. He has no other role in this case.
13.12 During his testimony as DW 5, Ramesh Khaneja, he testified that accused M.L. Mathur, Administrative Officer, DO-XIII, NIC had deputed him first as Investigator and after investigation as Recovery Agent. He called him CBI Case No. 29/12 41 of 66 to his office and told him that investigation was to be done. After investigation was done, he told him that recovery was to be effected in this case from the transporter M/s Shree Durga Carriers. He was working as Proprietor of M/s Globe Claim Recovery Consultants. He accordingly conducted investigation and submitted investigation report to Sh. M.L. Mathur. Thereafter, he made recovery from the above transporter and submitted the cheque of the recovery amount taken from the transporter to Sh. M.L. Mathur. Later, accused M.L. Mathur had paid him his fees which was calculated at the rate of 15% of the recovery amount. The same was paid to him by cheque. During his cross- examination, he stated that bill, Ex. DW5/P1 placed at page No. 16 of the claim file Ex.PW2/A was raised by him upon National Insurance Company with respect to recovery made by him. He further stated that report Ex.PW6/K was not given by him. He does not know any Lalit Kumar. In his firm only he was signing the reports. He had given a report in this case to Sh. M.L. Mathur. Ex.PW6/K is not the said report. Bill dated 07-10-1998, Ex.PW6/C was submitted by him and the same bears his signatures at point Q273 A. He had received his fee vide voucher, dated 13-10-1998, Ex.PW6/D. It bears his signatures at point Q 275. He further stated that acknowledgment dated 18-10-1998, Ex.DW5/P2 of the receipt of documents from the NIC, placed at page 10 of the claim file Ex.PW2/A bears his signatures at point Mark Q 284.
13.13 It is not disputed that accused No. 6, Ramesh Khaneja was purportedly appointed as verifier and recovery agent, an amount of Rs. 10,000/- was deposited purportedly as recovery amount, vide receipt dated 11-01-99 Ex.PW3/DA and he was paid Rs. 4,028/- vide cheque, Ex.PW6/N as fee. No evidence has been led by prosecution as to who had signed the CBI Case No. 29/12 42 of 66 report, Ex.PW6/K. No opinion has been expressed by CFSL about the authorship of the signatures on the report, Ex.PW6/K. However, DW 3 Sh. M.L. Mathur has testified that he had appointed Globe Claims Recovery Consultants for verification. They had given a report, Ex.PW6/K and based on the said report, he had recommended the claim. Accused No. 6, Ramesh Khaneja has not explained that if Ex. PW6/K was not the report submitted by him, what was the report submitted by him. He has neither produced copy of the report which was submitted by him nor stated as to what were the contents of the report which was filed by him. In his statement u/s 313 Cr.P.C., he stated that Shree Durga Carriers existed at 105 A, Adhyapak Nagar, Nangloi, Delhi. Further, the fact that he had deposited Rs. 10,000/-, purportedly as the recovery amount and has also been paid Rs. 4,028/- as fee also shows that he has endorsed the existence of Shree Durga Carriers. It can thus be safely inferred that the report dated 07-10-98, Ex.PW6/K was submitted by Globe Claims Recovery Consultants.
13.14 In the report dated 07-10-1998, Ex.PW6/K, which is on the letter head of Globe Claims Recovery Consultants, it is stated that their representative went to the office of M/s Shree Durga Carriers, A-105 A, Ayodhya Nagar (sic Adhyapak Nagar), Nangloi, Delhi and met the concerned officers and that the concerned officers of the carriers confirmed that this consignment was booked by their counter parts in Kanpur for Delhi vide their GR No. 575 dated 07-09-1998 which arrived in Delhi in heavily rain water damaged condition vide truck No. HR 26 7545. Finally, it has been concluded that the claim was genuine. Once it has been proved that Shree Durga Carriers did not exist and no consignment, for which the insurance was taken, CBI Case No. 29/12 43 of 66 was sent by Amit Trading Company to Arihant Trading Company, the verification report is by necessary implication, false.
13.15 It is also pertinent to note that the purported recovery amount of Rs.10,000/- was received vide cash order No. 097913 dated 05-01-1999, Ex. PW2/G of PNB. This cash order was allegedly prepared vide Draft application form dated 05-01-1999, Ex.PW22/F of PNB, wherein the applicant has been shown as one Ram Chand. No officer from PNB has been examined to prove Ex.PW22/F and Ex.PW22/G. However, it is not disputed that the above cash order was deposited in NIC vide receipt dated 11-01-1999, Ex.PW3/DA. Accused No. 6, Ramesh Khaneja has claimed recovery fee on 18-10-1998 vide Bill No. 50 dated 18-10-1998, Ex.DW5/P-1 wherein, " Cheque No. 097913 Date 5/1/99 Amount 10,000/- On Bank PNB" is shown to have been enclosed. It is not the case of accused that cheque No. 097913 dated 05-01-1999 mentioned in bill dated 18-10-1998, Ex. DW5/P-1 was different from cash order No. 097913 dated 05-01-1999, Ex. PW 2/G. There is no clarification as to how cash order/cheque dated 05-01-1999 could be enclosed with bill dated 18-10-1998, when the same has been actually deposited in NIC on 11-01-1999. From the aforesaid, it can also be safely concluded that no recovery was made by accused No. 6, Ramesh Khaneja from the purported transporter. Thus, he was not entitled to any investigation fee or recovery fee and he had raised false bills.
13.16 It is pertinent to note that the verification report dated 07-10-98 has been submitted by accused No. 6, Ramesh Khaneja, though not signed in his name. The said document has been made with the intention of causing it CBI Case No. 29/12 44 of 66 to be believed that such document was made by some Lalit Kumar, though no such person was apparently working for Globe Claims Recovery Consultants, with the intention to commit fraud. From the circumstances brought on record, it is clear that accused No. 6 would not have submitted false verification report, Ex.PW6/K or deposited Rs. 10,000/- purportedly as recovery amount or falsely claimed verification fee or recovery fee unless he had conspired with co-accused persons. However, since it has not been proved that the said accused has signed the verification report, in the name of Lalit Kumar, he cannot be held to have committed forgery.
Role of accused No. 1, Yash Pal Babbar and accused No. 2, Moti Lal Mathur 13.17 It is relevant to note that in the claim note dated 08-10-1998, Ex. PW 6/B, which is in the handwriting of accused No. 2, Moti Lal Mathur, it is, inter-alia, written as under :-
" Verification of submitted documents of the claim :- Yes, the detailed verification of the documents submitted and the verification of loss has been carried out by M/s Globe Claims Recovery Consultants. Their detailed report dated ... ............... has been submitted. They have found all the documents in order and the claim lodged by the claimant is in order and payable. Remarks and Recommendations - In view of document submitted and its verification report, the claim for Rs.209687 (inclusive of survey fee Rs. ... .................) is in order for payment which may be considered for approval for payment.
Sd/- (M.L. Mathur) 8-10-98."
Based on the above note, accused No. 1, Yash Pal Babbar has approved the claim vide his noting dated 09-10-98, at point C on Ex. PW6/B as under :-
CBI Case No. 29/12 45 of 66 " Pl. pay Rs. 209687/- (Rupees Two Lac Nine Thousand Six Hundred and Eighty Seven only) + Fees Sd/- (Y.P. Babbar) 9-10-98."
13.18 It can be seen that the verification report dated 07-10-98, Ex.PW6/K bears an endorsement dated 07-10-98 by accused No. 2, Moti Lal Mathur regarding its receipt and same is initialed by him. It has not been explained by accused No. 2, Moti Lal Mathur or accused No. 1, Yash Pal Babbar as to how in the claim note, dated 08-10-1998, the date of the above verification report or the amount of the survey fee bill, dated 18-09-1998 has been left blank. Since the note is in the handwriting of accused No. 2, himself, there was no occasion for not mentioning the date of the verification report or the amount of survey fee if the same were available at the time of making the said note. It thus appears that at the time of making the note, Ex.PW6/B, by accused No. 2, Moti Lal and approval of the same by accused No. 1, the verification report and the survey fee bill were not available with them and the same had been manipulated later on. The circumstances brought on record indicate that accused No. 1 and accused No. 2 were part of the conspiracy in order to cheat NIC and they used illegal means and abused their official position in order to obtain pecuniary advantage for Arihant Trading Company.
13.19 The depositions of DW 4 Yash Pal Bababr and DW 3 Moti Lal Mathur regarding their following rules and regulations of NIC and relying upon the processing of their subordinates as well as reports of surveyors/verifiers/recovery agents etc. and that they had no interaction with the claimant or the surveyor/verifier/recovery agent does not inspire CBI Case No. 29/12 46 of 66 confidence in view of the evidence led by the prosecution. Their acts are so inextricable with those of the co-accused persons in cheating the NIC that these could not have been done without conspiracy with such private persons. There had to be meeting of mind of the accused persons to commit the said acts. From the circumstances brought on record, it is clear that accused No. 1 Moti Lal Mathur and accused No. 2 Yash Pal Babbar have used illegal means and abused their official positions for obtaining pecuniary advantage for Arihant Trading Company.
Role of accused No. 4, K.C. Jain 13.20 PW 18 Sh. Sh. J.C. Jagadeesan, Officer in Zonal Office, ICICI Bank, Lodhi Road New Delhi has deposed about letter dated 10-04-2002, Ex.PW18/A, written by him to Sh. Joyti Kumar, Insp. Of Police, CBI vide which he had handed over statement of current account No. 48455, Ex.PW18/A-1 of M/s Arihant Trading Company for the period 16-10-1998 to 17-10-1998 and the account opening form along with supporting document, Ex.PW18/A-2 (colly.) of Arihant Trading Company. During his cross-examination on behalf of accused No. 4, Kailash Chand Jain and accused No. 5, S.K. Jain, he deposed that Kamal Chand and Ravinder Kumar Jain are partners of the firm Arihant Trading Company, the holder of the account. He admitted that accused K.C. Jain was not the holder of account No. 48455 of Arihant Trading Company. Accused K.C. Jain was not partner of Arihant Trading Company. Accused K.C. Jain was only introducer of the account. He is account holder of account No. 45146 which is in the name of Kailash Chand Jain and Company, of which the Account Opening Form is Ex.PW18/DB. From the above testimony, it is clear that accused No. 4, Kailash Chand Jain was not a CBI Case No. 29/12 47 of 66 partner/proprietor of Arihant Trading Company.
13.21 The prosecution is relying upon letter dated 04-09-98 placed at page 13 of the claim file, Ex.PW2/A and letter dated 11-09-98, Ex.PW6/L of Arihant Trading Company, which according to them bear initials of accused No. 4, Kailash Chand Jain at points Q-282 and Q-293 respectively. In his statement under Section 313 Cr.P.C., accused No. 4, Kailash Chand Jain has denied that his specimen handwriting/signatures were taken by CBI.
13.22 PW 19 Sh. Jyoti Kumar testified that specimen handwriting/ signatures of accused Kailash Chand Jain on 7 sheets marked S-44 to S-50 (D-29), Ex. PW 22/M (Colly) were taken by him in the presence of Sh. Prabhat Kumar Aggarwal, Administrative Officer, NIC.
13.23 PW 9 Sh. Prabhat Kumar Aggarwal testified that specimen writing/signature of Sh. Kailash Chand Jain on 7 sheets, marked S-44 to S-50 (D-29), Ex.PW22/M (Colly) were taken in his presence. Ex. PW 22/M (Colly) bears his signatures on each page at point B. As far as he remembers, the specimen signatures were taken by Insp. Jyoti Kumar.
13.24 PW 22 Sh. R.P. Kaushal has testified about letter dated 27-12-2002, Ex.PW22/M of Sh. Alok Mittal, SP, CBI, EOW-I, vide which the specimen handwriting and signatures of accused persons were sent to CFSL, in CC No. 34/12, titled CBI Vs. Yash Pal Babbar & Others. He further stated about the CFSL report, Ex.PW22/Q, along with the covering letter dated 20-05-2003, Ex.PW22/P addressed to SP, CBI, EOW-I in CC No. 34/12, titled CBI Case No. 29/12 48 of 66 CBI Vs. Yash Pal Babbar & Others. He also stated that Ex.PW22/P bears the endorsement of Sh. Alok Mittal, SP, CBI at point A vide which he had marked the letter to him.
13.25 PW 23 Sh. Narender Kumar Aggarwal testified that he has examined the questioned documents sent by CBI-EOW-I, Delhi in this case. The opinion has been expressed by him vide report No. CFSL-2002/D/0692 dated 19-04-2003, Ex.PW22/Q. His report has been forwarded with covering letter No. CFSL-2002/D-0692/2627 dated 20-05-2003 by the then Director, CFSL (CBI). He has identified his signatures on each page at point A of the report, Ex.PW22/Q and signatures of Sh. S.R. Singh, the then Director, CFSL, CBI, Delhi at point B on letter, Ex.PW22/P. In the report, Ex.PW22/Q, it has been opined by PW 23 Sh. N.K. Aggarwal that the questioned initials marked Q-282 i.e. initials of the author of letter dated 04-09-1998 of Arihant Trading Company placed at page 13 of the claim file, Ex.PW2/A, and Q-293, i.e. initials of the author of letter dated 11-09-1998, Ex.PW6/L, are consistent with the specimen initials marked S-44 to S-47 purported to be written by Sh. K.C. Jain in detailed manner of execution of strokes comprising them. However, he has not stated positively that handwriting evidence points to the writer of the standard signatures/writing marked S-44 to S-47 purported to be written by accused No. 4, Kailash Chand Jain being the person responsible for writing the questioned writings/signatures marked Q-282 and Q-293.
13.26 He further deposed that he has examined all the questioned signatures/initials, Ex.PW2/M (colly). He has given opinion on Q-282 and Q-293 which are initials. He further stated that he has not given reason while CBI Case No. 29/12 49 of 66 examining questioned initials of alleged K.C. Jain. He has not given reasoning as Q-282 and Q-293 are only initials. He admitted that it is difficult to give opinion on initials, because identifying characteristics are very less in initials. He admitted that, therefore, positive opinion cannot be given on initials. That is why, he has not given positive opinion in respect of Q-282 and Q-293. He also admitted that initials can be copied and forged easily by any other person. Therefore, definite opinion on initials cannot be given. He admitted that for comparison, contemporary documents are the best source. He admitted that in the present case, no contemporary documents written by alleged K.C. Jain has been supplied. The C ' onsistent' word is used in report only when no sufficient individual identifying handwriting characteristics are present in the questioned material.
13.27 From the above, it can be seen that the opinion of PW 23 Sh. N.K. Aggarwal regarding accused No. 4, Kailash chand Jain being author of Q- 282 and Q-293 is not positive. There is no reason to disbelieve the testimony of PW 23 Sh. N.K. Aggarwal.
13.28 Further, it is well settled that expert opinion is a weak piece of evidence and it is not safe to rely upon the same unless, the same is corroborated. The evidence of an expert is a rather weak type of evidence and the courts do not generally consider it offering " conclusive" proof and, therefore, safe to rely upon without seeking independent and reliable corroboration. Expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. It is unsafe to treat expert handwriting opinion as sufficient basis for CBI Case No. 29/12 50 of 66 conviction, but it may be relied upon when supported by other items of internal and external evidence. In this regard reference can be made to Magan Bihari Lal v. State of Punjab, AIR 1977 SC 1091, Ram Chandra v. State of Uttar Pradesh, AIR 1957 SC 381 and S. Gopal Reddy v. State of Andhra Pradesh, AIR 1996 SC 2184.
13.29 Ld. P.P. has urged that the court may itself compare the questioned initials on the aforesaid two letters dated 04-09-1998 and 11-09-1998 with the specimen initials of accused No. 4, K.C. Jain. On the other hand, Ld. Counsel for accused No. 4, K.C. Jain and accused NO. 5, S.K. Jain has submitted that since sufficient identifying characteristics are not available in the questioned initials, it will not be safe for the court to form any opinion on insufficient data.
13.30 In this regard, a reference can be made to State of Gujarat v. Vinaya Chandra Chhota Lal Patni, 1967, AIR 778, wherein the Hon'ble Supreme Court of India held, " It may not be safe for a Court to record a finding about a person's writing in a certain document merely on the basis of comparison, but a Court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard."
13.31 In Fakhruddin v. the State of Madhya Pradesh, AIR 1967 SC 1326, the Hon'ble Supreme Court held, " Both under S. 45 and S. 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy CBI Case No. 29/12 51 of 66 itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become an handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness."
13.32 As earlier stated, since the questioned writings are initials, the identifying characteristics are very less. No positive opinion or reasons for his opinion has been given by PW 23 Sh. N.K. Aggarwal. In view of the aforesaid, it would not be safe to infer that the author of initials at Q-282 and Q-293 is accused No. 4, Kailash Chand Jain.
13.33 According to the prosecution, accused No. 4, Kailash Chand Jain was the real owner and beneficiary of the claim amount credited in account No. 48455 of Arihant Trading Company in Bank of Madura, Connaught Place, New Delhi. It can be seen that the claim amount had been credited in account No. 48455 of Arihant Trading Company in Bank of Madura, Connaught Place, New Delhi. As per evidence on record, accused No. 4, Kailash Chand Jain is neither a partner nor proprietor of Arihant Trading Company. Further, no witness has stated that the said accused came to NIC, CBI Case No. 29/12 52 of 66 DO-XIII to take policy, Ex. PW6/F or to submit claim form or that the cheque, Ex. PW6/M of the claim amount was handed over to him. The mere fact that he was an introducer to the account of Arihant Trading Company would not be, per-se, sufficient to hold him liable for the acts of the said partnership firm. Thus, there is no cogent evidence that accused No. 4, Kailash Chand Jain was the actual beneficiary of the claim amount. As per the Account Opening Form, Ex.PW18/A2, Sh. Kamal Chand Jain and Sh. Ravinder Jain are the two partners of Arihant Trading Company. They were thus essential for investigation. However, there is no evidence that any investigation had been done regarding the said two partners of Arihant Trading Company. There is also no evidence regarding trail of money in question i.e. the claim amount so as to connect the same with accused No. 4, Kailash Chand Jain. Apparently, the investigation with regard to the real beneficiary of the claim amount is not complete. There is no explanation by the prosecution for the same. Any suspicion against accused No. 4, Kailash Chand Jain cannot take the place of proof. In view of the above, it is considered that prosecution has not been able to prove its case against accused No. 4, Kailash Chand Jain, beyond a reasonable doubt.
Role of accused No. 5, S.K. Jain 13.34 According to the prosecution, the consignment of gamber was shown to have been sent by Amit Trading Company, Kanpur to Arihant Trading Company, Delhi vide invoice No. 6408 dated 04-09-1998 of Amit Trading Company. The said invoice is not available on record. Only the number of the invoice finds mention in the survey report dated 18-09-1998, Ex/PW2/DA-1.
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13.35 PW 2 Sh. Akhilesh Kumar Seth has, inter-alia, testified about -
a) Letter dated 15-06-1999, Ex.PW2/H, sent by him to M.C. Aggarwal,
SDM Kanpur, DO I, vide which he has sought verification, inter-alia, regarding invoice No. 6406 at 04-09-1998.
b) Reply letter dated 14-07-1999, Ex.PW2/J of Sh. M.C. Aggarwal and its enclosure i.e. letter dated 12-07-1999 of Sh. A.K. Sinha, who was deputed to verify the consignment in question.
During cross-examination, he stated that he went to Kanpur alone to verify the claim of M/s Arihant Trading Company. Mr. S.K. Jain, Proprietor of Amit Trading Company did not meet him there. He does not remember now as to where from he got the address of Amit Trading Company. He could not find any document revealing the address of Amit Trading Company in the file, Ex.PW2/A. Even his report, Ex.PW1/A does not contain the address of Amit Trading Company. He did not have any document other than the claim file, Ex.PW2/A at the time he started verifying the claim of M/s Arihant Trading Company. On going to the office of Amit Trading Company, he met one person sitting there who claimed himself as the son of Sh. S.K. Jain, and on being told about the enquiry, he told him that this firm had not sent any consignment against invoice No. 6408 dated 04-09-1998. He further stated that to his mind, the enquiry conducted by him was not about invoice No. 6406. In Ex.PW2/H, invoice number has been given as 6406. It may be because the surveyor's report dated 18-09-1998 is kept in file Ex.PW2/A, wherein the invoice number appears to be written as 6406 though it is actually 6408. He admitted that he did not make any enquiry about invoice No. 6408. He made oral enquiry but did not collect any documents etc. about Mr. S.K. Jain being the proprietor of M/s Amit Trading Company.
CBI Case No. 29/12 54 of 66 13.36 PW 8 Sh. A.K. Sinha testified that he had been assigned the
verification of two invoices issued by M/s Amit Trading Company, 53/27, Naya Ganj, Kanpur by the Sr. Divisional Manager, National Insurance Company Ltd., Kanpur. He conducted the verification and his verification report, Ex.PW8/A bears his signature at point A. In the report, Ex.PW8/A, it is stated by PW 8 Sh. A.K. Sinha that he had visited Amit Trading Company, 53/27, Naya Ganj, Kanpur and contacted its owner who confirmed that they had issued invoice No. 6406 for Rs. 11,330/- in respect of camphor. However, he did not disclose the name of the party by whom these goods were purchased and that he denied that he has not issued any such invoice bearing No. 6406 dated 07-09-1998 for Rs. 6,37,000/- issued against M/s Arihant Trading Company, Delhi.
13.37 PW 8 Sh. A.K. Sinha further deposed that when he went for conducting the verification, he met the proprietor of M/s Amit Trading Company and on conducting the verification, he found that though invoices of the same numbers and of the same date as given for verification had been issued by M/s Amit Trading Company, the invoices which had been given to him for verification were of higher amounts in comparison to the carbon copies of the invoices that were shown to him by M/s Amit Trading Company. He has detailed the same in his report. He submitted his report Ex.PW8/A in July, 1999. He further stated that since he does not know the name of the owner of Ms. Amit Trading Company, he can neither admit nor deny, whether or not Mr. S.K. Jain was or was not the owner of Ms. Amit Trading Company.
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13.38 PW 21 Sh. Mohan Chandra Aggarwal testified that in the year
1999, he was working as Senior Division Manager in National Insurance Company at its Divisional Office I, Kanpur. In reply to letter dated 15-06-1999, Ex.PW2/H written by Sh. A.K. Seth, Vigilance Officer of Delhi Regional Office I to him, he had written letter dated 14-07-1999, Ex.PW2/J. Along with Ex. PW 2/J, he had sent report of Sh. A.K. Sinha, Surveyor which is Ex. PW 8/A. During cross-examination, he stated that he has not gone along with Sh. A.K. Sinha since he was not supposed to accompany the Surveyor.
13.39 PW 19 Sh. Jyoti Kumar, during cross-examination, stated that he did not go to Kanpur to investigate with Amit Trading Company, Kanpur, the consignor, about the invoice and dispatch of goods.
13.40 PW 22 Sh. R.P. Kaushal, during his cross-examination, stated that he had personally visited the address of M/s Amit Trading Company, Naya Ganj, Kanpur where he met Sh. Surender Kumar who admitted that he was Proprietor of M/s Amit Trading Company and he also gave him a copy of letter head of M/s Amit Trading Company after signing the same and that he was brother of Kailash Chand Jain. He further stated that he did not recollect as to where all in Kanpur, he had conducted investigation. However, he had visited Naya Ganj and the place where he had met Sh. S.K. Jain. He does not recollect whether he had collected the invoice book containing the carbon copies of invoice No. 6406, 6408 etc. from M/s Amit Trading Company during his visit to Kanpur.
13.41 Thus it can be seen that there is no direct or admissible
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evidence that accused No. 5, S.K. Jain was the Proprietor of Amit Trading Company or that he had conspired with other accused persons to cheat NIC. According to PW 2 Sh. Akhilesh Kumar Seth, he has not met the Proprietor of Amit Trading Company. His testimony that he met one person sitting at the office of Amit Trading Company who claimed to be the son of S.K. Jain and told him that their firm had not sent any consignment against invoice No. 6408 dated 04-09-1998, being hearsay is inadmissible. Further, during his cross- examination, PW 2 Sh. Akhilesh Kumar Seth admitted that he did not make any inquiry about invoice No. 6408. It can be seen that this witness is not clear about the invoice regarding which inquiry was made by him. Thus, the testimony of PW 2, Sh. Akhilesh Kumar Seth is of no use.
13.42 PW 8 Sh. A.K. Sinha, Surveyor who was deputed by PW 21 Sh. Mohan Chandra Aggarwal to verify, inter-alia, invoice No. 6406 dated 04-09-1998 vide which 125 bags of gamber valued Rs. 6,37,000/- were sent by Amit Trading Company, 53/27, Naya Ganj, Kanpur to Arihant Trading Company, Delhi vide GR No. 575 dated 07-09-1998 of Shri Durga Carriers, through truck No. HR/26/7545 has stated that he had met the Proprietor of M/s Amit Trading Company. However, he has neither deposed that accused No. 5, S.K. Jain was the said Proprietor nor he has identified the said accused. Further, he stated that though invoices of the same numbers and same day as given for verification, had been issued by Amit Trading Company, the invoices which had been given to him for verification were of higher amounts in comparison to the carbon copies of the invoices that were shown to him by Amit Trading Company. However, the said genuine invoices of Amit Trading Company have not been produced. Thus the testimony of PW CBI Case No. 29/12 57 of 66 8 Sh. A.K. Sinha, regarding the said invoices, besides lacking in specific details, is inadmissible. Further, his verification report pertains to invoice No. 6406 and not to the invoice in question i.e. 6408 as mentioned in the survey report, Ex.PW6/K. Ergo, the testimony of PW 8 Sh. A.K. Sinha is also of no use to the prosecution.
13.43 The testimony of PW22 Sh. R.P. Kaushal that he personally visited the address of Amit Trading Company, Naya Ganj, Kanpur where he met Surender Kumar who admitted that he was Proprietor of Amit Trading Company and that he was brother of Kailash Chand Jain is a statement made to a police officer and thus inadmissible in terms of Section 25 of the Indian Evidence Act, 1872. Besides, he has not identified the accused No. 5, Surender Kumar Jain as the person whom he met at Kanpur. Further, even if it is considered that accused No. 5, S.K. Jain was Proprietor of Amit Trading Company, it does not make out any case against him because the prosecution has not been able to prove that accused No. 5, Surender Kumar Jain, without sending any consignment, issued a bogus invoice in favour of Arihant Trading Company, as the invoice in question is not on record. In view of the aforesaid, it is considered that prosecution has not been able to prove beyond a reasonable doubt that accused No. 5, S.K. Jain was involved in conspiracy with other accused persons.
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 etc. offences involving cheating and forgery etc may not CBI Case No. 29/12 58 of 66 be detected immediately on commission. Generally, it is only after scrutiny of documents and enquiry that such offences are detected. Further, 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. The judgments cited by him do not support his contention in the facts of this case.
14.2 It has also been argued on behalf of accused No. 1, Yash Pal Babbar and accused No. 2 and Moti Lal Mathur that mandatory sanction for offences under Section 420, 467, 468, 471 r/w Section 120-B IPC has not been obtained for prosecution of accused No. 1, Yash Pal Babbar and accused No. 2 and Moti Lal Mathur, who are public servants. It may be mentioned that earlier accused No. 1, Yash Pal Babbar has moved an application dated 21-01-2013 under Section 197 Cr.P.C. and accused No. 2, Moti Lal Mathur has moved an application dated 19-01-2013 under Section 197 Cr.P.C. r/w Section 227 Cr.P.C. on the same issue. The said applications were dismissed vide order dated 11-02-2013, wherein it was held that the said two accused persons were not such public servants who are not removable from their office save by or with the sanction of Govt. and thus, the bar of Section 197 Cr.P.C was not applicable to the present case.
14.3 It has been argued on behalf of accused No. 3, Pramod Kumar Gupta that survey report, Ex.PW2/DA-1 has been filed by accused No. 3, CBI Case No. 29/12 59 of 66 Pramod Kumar Gupta. 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. Reliance has been placed upon Md. Ibrahim & Ors. v/s State of Bihar and Anr. 2010 Cri LJ 2223 in this regard. Ld. P.P. has argued that even though this document 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 documents. He has referred to illustration (h) to section 464 IPC in support of his contention. It is considered that the above illustration does not apply to facts of this case.
14.4 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 CBI Case No. 29/12 60 of 66 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 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).
14.5 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.
14.6 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 CBI Case No. 29/12 61 of 66 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 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 CBI Case No. 29/12 62 of 66 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 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."
14.7 In present case, survey report dated 18-09-1998, Ex. PW2/DA-1 of accused No. 3, Pramod Kumar Gupta, was not made by the accused claiming himself 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 467 & 468 IPC are not attracted. Therefore, no case is made out against accused No. 3, Pramod Kumar Gupta under sections 468 or 467 of the IPC.
Conclusions.
15.1 In view of the aforesaid discussions, it is considered that the prosecution has been able to prove beyond a reasonable doubt that ;
a) Accused No. 1, Yash Pal Babbar, accused No. 2, Moti Lal Mathur, accused No. 3, Pramod Kumar Gupta and accused No. 6, Ramesh Khaneja CBI Case No. 29/12 63 of 66 entered into an agreement to cheat NIC, DO-XIII, New Delhi by fraudulently inducing it to sanction insurance claim in favour of Arihant Trading Company for Rs. 2,09,687/- , inter-alia, by commission of criminal misconduct by public servants i.e. accused No. 1, Yash Pal Babbar and accused No. 2, Moti Lal Mathur,
b) Accused No. 1, Yash Pal Babbar, being a public servant i.e. Assistant Manager, NIC, DO-XIII, New Delhi, by illegal means and abuse of his official position, obtained pecuniary advantage to the tune of Rs.2,09,687/- for Arihant Trading Company and caused corresponding loss to the NIC by sanctioning the above loan amount,
c) Accused No. 2, Moti Lal Mathur, being a public servant i.e. Administrative Officer, NIC, DO-XIII, New Delhi, by illegal means and abuse of his official position, obtained pecuniary advantage to the tune of Rs.2,09,687/- for Arihant Trading Company and caused corresponding loss to the NIC by recommending the claim proposal for grant of above claim which was sanctioned on his recommendation, 15.2 However, the prosecution has not been able to prove beyond a reasonable doubt that :-
a) Accused No. 4, Kailash Chand Jain or accused No. 5, S.K. Jain entered into any conspiracy with the co-accused persons to cheat NIC,
b) Accused No. 4, Kailash Chand Jain dishonestly deceived or induced NIC, DO-XIII, New Delhi to sanction insurance claim of Rs. 2,09,687/- in favour of Arihant Trading Company or that he received the cheque of the claim amount, CBI Case No. 29/12 64 of 66
c) Accused No. 4, Kailash Chand Jain used forged document i.e. invoice or GR or Survey Report etc. as genuine for inducing NIC, DO-XIII, New Delhi to sanction insurance claim of Rs.2,09,687/- in favour of Arihant Trading Company,
d) Accused No. 3, Pramod Kumar Gupta committed any forgery,
e) Accused No. 6, Ramesh Khaneja committed any forgery.
15.3 The points at para 9 are decided accordingly.
15.4 In view of the aforesaid, it is held that ;
a) Accused No. 1, Yash Pal Babbar, accused No. 2, Moti Lal Mathur, accused No. 3, Pramod Kumar Gupta and accused No. 6, Ramesh Khaneja are guilty for commission of offence punishable under Section 120-B r/w Section 420 IPC and Section 13 (2) r/w Section 13 (1) (d) of the P.C. Act, 1988 and they are convicted accordingly.
b) Accused No. 1, Yash Pal Babbar is guilty for commission of offence punishable under section 13 (2) r/w Section 13 (1) (d) of the P.C. Act, 1988 and he is convicted accordingly.
c) Accused No. 2, Moti Lal Mathur is guilty for commission of offence punishable under section 13 (2) r/w Section 13 (1) (d) of the P.C. Act, 1988 and he is convicted accordingly.
d) Accused No. 3, Pramod Kumar Gupta is acquitted of the charge under Section 468 IPC.
CBI Case No. 29/12 65 of 66 e) Accused No. 4, Kailash Chand Jain is acquitted of the charges - (i) under Sections 120-B r/w Sections 420, 467, 468 & 471 IPC and
Section 13 (2) r/w Section 13 (1) (d) of the P.C. Act, 1988,
(ii) under Section 420 IPC, and
(iii) under Section 471 r/w Sections 467 & 468 IPC.
f) Accused No. 5, Surender Kumar Jain is acquitted of the charge under Section 120-B r/w Sections 420, 467, 468 & 471 IPC and Section 13 (2) r/w Section 13 (1) (d) of the P.C. Act.
g) Accused No. 6, Ramesh Khaneja is acquitted of the charge under Section 468 IPC.
16. Let the convicts be heard on the point of sentence on 04-06-2014.
Announced in the Open Court today on 27th Day of May, 2014.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi
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