Delhi District Court
Ex.Dw1/A vs Mohamed Haji Latif on 20 December, 2013
IN THE COURT OF SH. RAKESH SYAL, SPECIAL JUDGE, (PC ACT)
& (CBI)-03, SOUTH WEST DISTRICT, DWARKA, NEW DELHI
CBI Case No. 28/12
RC No. 2(E)/2001/EOW-I/DLI
In re:
Central Bureau of Investigation
Vs.
1. Yash Pal Babbar,
S/o Pishori Lal Babbar
R/o C-113, Sarita Vihar,
New Delhi-76
2. Moti Lal Mathur,
S/o Late Shri B.L. Mathur,
R/o Pocket A-10/74-A
Kalkaji Ext.,
New Delhi-19.
3. Arvind Khanna
S/o Late Sh. K.M. Khanna,
R/o. A-104, Lok Vihar, Pitam Pura,
New Delhi-110034
4. Sh. Ramesh Khaneja,
S/o Sh. Raj Gopal
R/o. A-62/63, Flat No. 112,
Mansa Ram Park,
Uttam Nagar,
New Delhi-110049.
Date of Institution of Case : 31-01-2003
Date on which Judgment was reserved : 18-12-2013
CBI Case No. 28/12 1 of 51
Date on which Judgment was delivered : 20-12-2013
JUDGMENT
Facts 1.1 This case was registered on 24-01-2001 on complaint dated 29-09-2000 of Sh. K. B. Mahapatra, CVO, National Insurance Company Ltd. (hereinafter referred to as NIC), Calcutta, alleging that during the years 1998-99, accused no.1, Sh. Yash Pal Babbar, the then Asstt. Manager and accused no.2, Moti Lal Mathur, the then Administrative Officer, of NIC, Divisional Office (hereinafter referred to as DO)-XIII New Delhi, (since retired) entered into a criminal conspiracy with private persons/ surveyors/ tracers namely accused no.3, Arvind Khanna, Prop., M/s Om Oil Trading Co., B-15A, Hemkunt Chambers, 89, Nehru Place, New Delhi and accused no.4, Ramesh Khaneja, Prop. M/s Globe Claims Recovery Consultants, A/390, Chokhandi, Tilak Nagar, Delhi 110018, and obtained a marine claim of Rs.2,53,871/- in favour of M/s Om Oil Trading Corp. from NIC, DO-XIII, New Delhi on the basis of forged and bogus documents.
1.2 Investigation was conducted during which, inter-alia, statement of witnesses were recorded, documents were seized and specimen handwriting/signature of suspects and questioned documents were got examined from the CFSL.
1.3.1 Investigation revealed as under:-
1.3.2 Sh. Arvind Khanna took, from DO-XIII, NIC, New Delhi, a Marine Policy No. 4500327 for Rs. 5,90,000/- on 24-09-1998 for dispatch of industrial resin chemical from Delhi to M/s Gupta Traders, Opp. Bus Stand, Hanumangarh, Rajasthan, vide Goods Receipt (hereinafter referred to as GR) No. 2380 dated 25-09-1998 of M/s Singh Road Lines, Lal Kothi, Near Chugh CBI Case No. 28/12 2 of 51 Warehouse, GR Road, Chikambarpur, Delhi-UP Border. M/s Gupta Traders, the consignee purportedly reported loss to NIC, Rai Singh Nagar Branch on 29-09-1998, the said branch deputed Mr. Dharam Pal Gupta, 2/219, Housing Board Colony, Sriganganagar- 335 001 for survey and the survey report was submitted on 05-10-1998 to Rai Singh Nagar Branch. The Branch Manager NIC, Dhan Mandi, Rai Singh Nagar (Raj.) vide their letter dt. 06-10-1998, was shown to have forwarded the report alongwith the relevant papers to NIC, DO- XIII, New Delhi.
1.3.3 A claim form dated nil of M/s Oil Trading Company was submitted in NIC, DO-XIII, New Delhi. Accordingly, a Claim File no.
45/98-98/40 of M/s Om Oil Trading & Co. was opened in NIC, DO-XIII, N. Delhi. On 06-10-1998, accused No. 2 Moti Lal Mathur, appointed M/s Globe Claims Recovery Consultants, A-390, Choukhandi, Tilak Nagar, New Delhi as Investigator for verification of documents pertaining to the claim. M/s Globe Claims Recovery Consultants submitted their report on 17-10-1998, which was received by accused No. 2 Sh. Moti Lal Mathur. Subsequently, M/s Globe Claims Recovery Consultants was also appointed as recovery agent. The claim was processed and recommended by accused No. 2 Sh. Moti Lal Mathur, for Rs.2,53,871/- which was sanctioned by accused No. 1 Sh. Yash Pal Babbar. The claim amount of Rs.2,53,871/-, was received by accused No. 3 Arvind Khanna vide cheque no. 245197 dated 22-10-1998, and proceeds thereof were credited into current account No. 1495 of the insured in Punjab & Sind Bank, Ranjit Nagar, New Delhi.
1.3.4 The ratification of appointment of M/s Globe Claims Recovery Consultants has not been done by accused No. 1 Yash Pal Babbar, Sh. Dharampal Gupta, Surveyor denied having conducted the survey or CBI Case No. 28/12 3 of 51 submitting any survey report in respect of the consignment of M/s Gupta Traders, Opp. Bus Stand, Hanumangarh, Rajasthan. The survey report was forged.
1.3.5 Neither the insured company i.e. M/s Om Oil Trading Co. nor the transporter M/s Singh Roadlines were existing at the given address. M/s Globe Claims Recovery Consultants had not carried out any investigation and had prepared and submitted false investigation report on the direction of accused No. 2 Sh. Moti Lal Mathur, A sum of Rs. 12,500/- was deposited in NIC, DO-XIII, as recovery amount vide cheque no. 670438 dated 19-12-1998 of OBC, Delhi and collection no. 9887 dated 11-01-1999. Rs. 4180/- was paid to Globe Claims Recovery Consultants as investigation fee vide cheque no. 245344, and Disbursement Voucher No. 2641 dated 29-10-1998 and Rs. 2,025/- was paid as recovery fee. Documents submitted in respect of claim are false/ forged and bogus, which were fabricated by accused No. 3 Arvind Khanna in connivance with accused No. 1 Yash Pal Babbar, accused No. 2 Moti Lal Mathur, and facilitated accused No. 3 Arvind Khanna of M/s Oil Trading Company to receive an amount of Rs.2,53,871/- from NIC, DO-XIII, New Delhi, thereby causing a loss to the tune of Rs. 2,53,871/- to NIC, N. Delhi and wrongful gain to accused persons.
1.4 On completion of investigation, a charge sheet U/s 120 B r/w sections 420, 467,468 and 471 IPC and Sec. 13 (2) r/w section 13 (1) (d) of Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act), and substantive offences thereof was filed against all the accused persons. 1.5 It is may be mentioned that as per the documents/letter heads of the insured/consignee Om Oil Trading Company, as available in the claim file, the name of the said consignee has been mentioned as "Om Oil Trading CBI Case No. 28/12 4 of 51 Company". Accused No. 3 Arvind Khanna is stated to be the proprietor of the same. However, the parties as well as the witnesses have at many places/times referred to the same as "M/s Om Oil Trading Company". There is no dispute that any reference to "M/s Om Oil Trading Company" means "Om Oil Trading Company." Thus, the consignee is being hereinafter referred to as "Om Oil Trading Company". Same is the case with respect to "Globe Claims Recovery Consultants, which has been, at many places/times, referred to by the parties and the witnesses as "M/s Globe Claims Recovery Consultants".
2.1 Copies of documents were supplied to the accused persons in terms of section 207 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 section 420/467/468/471 IPC and u/s 13 (2) r/w section 13 (1) (d) of the PC Act,
b) against accused No. 1, Yash Pal Babbar u/s 13 (2) r/w section 13 (1) (d) of the PC Act,
c) against accused No. 2, Moti Lal Mathur u/s 13 (2) r/w section 13 (1) (d) of the PC Act,
d) against accused No. 3, Arvind Khanna u/s 420 IPC and section 471 r/w section 467 and 468 IPC,
e) against accused No. 4, Ramesh Khaneja u/s 468 and 471 IPC.
The accused persons pleaded not guilty to the charges and claimed trial.
Prosecution Evidence 4.1 PW 1 Kruti Bas Mahapatra, Chief Vigilance Officer, NIC, on CBI Case No. 28/12 5 of 51
whose instructions investigation was carried out has filed the complaint dated 29-9-2000, Ex. PW1/B to the CBI. PW 2 Shri A.K. Seth, PW 3 Shri A.,K. Tiwari and PW 9 Shri A.L. Gambhir, all officers of the Vigilance Department of NIC, had conducted the investigation, during which they had seized the files including the claim file of Om Oil Trading Company, Ex. PW2/A, and given their report, Ex. PW1/A. 4.2 PW 7 P.K. Aggarwal, Administrative Officer, Vigilance Department of NIC has handed over the 9 marine claim files vide seizure memo dated 8-2-2001, Ex. PW7/A and certain other documents vide letter dated 16-9-2002, Ex. PW7/B to the CBI. PW 11 Shri C.D. Ram, Assistant, NIC, has handed over the Disbursement vouchers vide seizure memo dt. 11-12-2002, Ex. PW11/A. 4.3 PW 4 Shri Vinod Kumar, Senior Assistant, NIC, DO-XIII, has testified about the claim file, Ex. PW2/A and identified the signature/handwriting of accused No.1 Moti Lal Mathur and accused No.2 Yash Pal Babbar on various documents in the said file viz notings, Ex. PW4/A and Ex. PW4/B, on the inside front cover and inside back cover of the claim file, Ex. PW2/A, disbursement voucher dated 29-10-1998, Ex. PW4/C regarding payment of Rs 4180/- to Globe Claims Recovery Consultants, Bill dated 17-10-1998, Ex. PW4/D of Globe Claims Recovery Consultants, Disbursement voucher dated 22-10-1998, Ex. PW4/E, Receipt dated 11-01-1999, Ex. PW4/F of recovery amount from M/s Singh Road Lines, verification report dated 17-10-1998, Ex. PW4/G, noting of M.L. Mathur Ex. PW4/H, Policy, Ex. PW4/J, Letter dated 06-10-1998, Ex. PW4/K purported to be of Rai Singh Nagar Branch of NIC and cheque dt. 22-10-1998, Ex. PW4/L of Rs 2,53,871/-.
CBI Case No. 28/12 6 of 51 4.4 PW 5 Ms Vandana, Deputy Mananger, Regional Office, NIC and
PW 8 Shri R.C. Sood, Deputy Manager, Delhi Regional Office-I, NIC have deposed about the documentation and procedure required for settlement of marine claims and deficiencies in the claim file, Ex. PW2/A. 4.5 PW 12 Shri R. Vaidyanathan, Chief Manager, Indian Overseas Bank, where NIC was having current accounts No. 1194 and 1197, has deposed about the handing over of the cheques vide letter dated 4-5-2002, Ex. PW12/A and Statement of Account of current account No. 1194 of NIC, Ex. PW12/B and the cheque No. 245197 dated 22-10-1998, Ex. PW4/L in favour of Om Oil Trading Company. PW22 Shri Kulbir Singh Sahi, Branch Manager, Punjab and Sind Bank, Branch office Ranjit Nagar, has deposed about letter dated 31-1-2002, Ex. PW22/A, vide which Statement of Account Ex. PW22/B of current account No 1495 and photocopy of current account opening form, Ex. PW22/C were sent to CBI.
4.6 PW 26 Amrit Pal Singh and PW 27 Sarit Biswal have deposed about non existence of the consignor Om Oil Trading Company. 4.7 PW 18 Satpal, PW 19 Praveen Gupta, PW 20 Gifty Munjal, PW 21 Mahavir Prasad and PW23 Raj Kumar have deposed about the non existence of the consignee M/s Gupta Traders.
4.8 PW 10 D.K. Sharma, PW 13 Ashok Sehgal, PW 14 Veer Pal Singh and PW15 Mahipal Sharma, have deposed about non existence of transporter M/s Singh Road Lines.
4.9 PW 6 Sh Yogender Kumar Kaushik, Branch Manager NIC at Rai Singh Nagar, has testified that letter Ex. PW4/K was not sent from his Branch and it does bear his signature, letter dated 19-9-1998, Mark A1 does not bear his signature and was never received in his office and that he had not deputed CBI Case No. 28/12 7 of 51 Shri D.P. Gupta for loss assessment. PW 16 Shri Dharampal Gupta, has deposed that he had never done any survey regarding Om Oil Trading Company, he does not know any Om Oil Trading Company, the marine survey report dated 05-10-1998, Ex. PW16/B was not prepared by him and it does not bear his signatures, two receipts dated 05-10-1998, Ex. PW16/C and Ex. PW 6/D were not issued by him and four photographs, Ex. PW16/E-1 to Ex. PW16/E-4, placed in the claim file, Ex. PW2/A neither bear his signature nor his stamp.
4.10 PW 24 Shri S.L. Garg, PW 25 Shri B.S. Bisht and PW 28 Shri B.M. Pandit are the part IOs. PW 29 Shri Jyoti Kumar is the initial IO and PW 30 Shri R.P. Kaushal is the final IO.
Statement of Accused Persons 5.1 Statement of all the accused persons were recorded u/s 313 Cr.P.C. wherein they generally denied the incriminating evidence that has come against them.
5.2 Accused No. 1 Yash Pal Babbar also stated, inter-alia, 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 was posted at DO-XIII as Divisional Manager. The claim was processed by his subordinates and put up to him for sanction. He passed them with due care and attention and in good faith. He had no cause to believe that any document in the claim file was false, forged or fabricated. He had followed the prescribed and established procedure while passing the claim. He had not violated any rule of the claim CBI Case No. 28/12 8 of 51 procedural manual. He never intended to cause any wrongful gain to anyone or to himself.
5.3 Accused No. 2 Moti Lal Mathur stated, inter-alia, that he has executed his duties in utmost good faith and on the basis of available documents and reports in the file. He never intended to cause any wrongful gain to anyone or to him. He had recommended the claims in accordance with the Claims Procedural Manual. The claim was processed by him strictly on the basis of documents and reports available in the file and he had recommended the claim in utmost good faith. He had no cause to believe that any document in the file was false, forged or fabricated. He had followed the prescribed and established procedure while recommending the claim. 5.4 Accused No.3 Arvind Khanna stated that he has been falsely implicated and that he is innocent.
5.5 Accused No. 4 Ramesh Khaneja, stated, inter-alia, that whatever work was assigned to him as recovery agent by National Insurance Company was properly executed by him. The prescribed fee was paid to him. He had no other role in this case.
Defence Evidence 6.1 Accused No. 1 Yash Pal Babbar and accused No. 2 Moti Lal Mathur have examined two witnesses i.e. DW 1 and DW 2 in their defence, besides themselves appearing as witnesses u/s 315 Cr.P.C. r/w Sec. 21 of the PC Act. DW 1 Sh. Dinesh Gupta, Assistant Manager, DO-XIII, NIC has deposed about destruction of record i.e. Claim Intimation Register and underwriting docket of the policies in terms of company's circular dt. 23-04-13, Ex.DW2/B. He has also stated about the applicability of Claims Procedural Manual, Ex.DW1/C before new guidelines were issued vide claims facilitation, CBI Case No. 28/12 9 of 51 Ex.DW1/A, in the year 2007.
6.2 DW 2 Ms. Yamini Luthra, Administrative Officer, Regional Office, NIC has deposed about destruction of record i.e. audit reports, confidential reports of accused No. 1Yash Pal Babbar and accused No. 2 Moti Lal Mathur and cheque dishonour register, for the relevant period, in terms of company's circular dt. 23-04-13, Ex.DW2/A. She also stated about the applicability of Claims Procedural Manual, Ex.DW2/B before new guidelines were issued vide claims facilitation, Ex.DW1/A in the year 2007.
6.3 DW 3 Yash Pal Babbar has testified, inter-alia, that he had sanctioned the claim in the present case 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 for verification, documents submitted by the claimant, in utmost good faith on the recommendations of his subordinate. He had never over ruled the objections raised by his subordinates and allowed clarifications if there was any objection. In the claims settled by him, no irregularity was ever found by any audit team. The requirement of documents in Marine Claim Cases varies from case to case. He had never met accused Arvind Khanna or his 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. The Recovery Agent, Tracer, Surveyor and Verifier only meet the Divisional Manager when there is any requirement. In the present case he has not met them.
6.4 DW 4 Moti Lal Mathur has deposed, inter-alia, that as an Administrative Officer, he had no role in the appointment of the Verifier. He CBI Case No. 28/12 10 of 51 was not required to verify the Surveyor's Report, the Verifier's Report, the existence of Consignor/Consignee, the consignment or the Transporter. He was only required to check whether the surveyor's report and verifier's report were in consonance with the insurance 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 if any adverse remark is given by the Surveyor or Verifier. As per the policy, within three days of the completion of the required documents, the claim is to be paid. 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. The claim had been processed and recommended by him. The recommendation made by him in this case and the amount involved, was within his power as per the Claim Procedural Manual.
Arguments on behalf of CBI 7.1 Shri Manoj Shukla, Ld P.P has argued that the prosecution has been able to prove its case beyond reasonable doubt. PW 26 Amrit Pal Singh and PW 27 Sarat Biswal have proved the non existence of the consignor Om Oil Trading Company. PW 18 Satpal Aggarwal, PW 19 Parveen Gupta, PW 20 Gifty Munjal, PW21 Mahavir Prasad and PW 23 Raj Kumar have proved the non existence of consignee M/s Gupta Traders. PW 10 Sh Dinesh Kumar Sharma, PW 13 Sh Ashok Sehgal, PW 14 Veer Pal Singh and PW 15 Mahipal Sharma have proved the non existence of transporter M/s Singh Road Lines. He further submitted that PW 12 Sh R. Vaidyanathan and PW 22 Kulbir Singh Sahi have proved the bank accounts/transactions of NIC and accused No. 3 Arvind Khanna. PW 2 Sh Akhilesh Kumar Seth, PW 3 Anil Kumar Tiwari and PW 9 Sh Amrit Lal Gambhir have proved the Vigilance report and PW 1 Sh CBI Case No. 28/12 11 of 51 Kruti Bas Mahapatra has proved the complaint made to CBI, based on which FIR was registered. PW 4 Sh Vinod Kumar has proved the claim file, Ex. PW2/A and handwriting/signatures of accused No.1 and accused No.2 in the said file. PW 5 Ms Vandana and PW8 Sh R.C. Sood have explained the procedure and documentation for settlement of marine claims. PW7 Sh P.K. Aggarwal and PW 11 Sh C.D. Ram have proved the handing over of the files/documents to CBI. PW 6 Sh Yogender Kumar Kaushik and PW 16 Dharam Pal Gupta have proved that no surveyor was deputed by Rai Singh Nagar Branch of NIC and that the surveyor report was bogus. PW 24 S.L. Garg, PW 25 B.S. Bisht, PW 28 B.M. Pandit, PW 29 Jyoti Kumar and PW 30 R.P. Kaushal have substantiated the investigation conducted in this case, Ld P.P. also submits that besides direct evidence, the circumstantial evidence brought on record prove that all the accused persons have conspired to cheat NIC.
Arguments on behalf of Accused No. 1, Yash Pal Babbar. 8.1 Shri. Umesh Sinha counsel for accused No.1 Yash Pal Babbar has argued that the said accused has sanctioned the claim based on the recommendations of his subordinates and the report of the surveyor in accordance with the rules and regulations of NIC, within his financial powers, and there was no occasion for him to disbelieve the same. Field verification was not a part of his duty. Ld counsel further argued that there is no explanation by the prosecution regarding delay in registration of FIR, nine charge sheets could not have been filed out of one FIR and FIR could not have been registered without conducting preliminary enquiry. He also contends that no presumption under section 20 of PC Act is applicable in the present case. Ld counsel further argued that in the letter dated 6-10-1998, CBI Case No. 28/12 12 of 51 Ex. PW4/K of Rai Singh Nagar Branch, reference number of the letter is given. However, the best evidence i.e. the dispatch register, surveyor's appointment register, claim intimation register and books of account of surveyor have not been produced by the prosecution to prove that no surveyor was appointed by Rai Singh Nagar Branch or that the letter Ex. PW4/K was not sent by them. Thus, an adverse inference for withholding the above documents may be drawn against the prosecution. It is also argued that the mere denial of signatures by PW 6 Sh Y.P. Kaushik on the letter, Ex. PW4/K is not sufficient to disprove the same. The signatures on Ex. PW4/K should have been got compared with his specimen signatures to check authenticity thereof. He has also argued that the testimony of PW 16 Shri Dharam Pal Gupta need to be examined with caution, since if he had admitted the signature on the survey report, he would have been himself an accused in the present case. He further argued that the prosecution has withheld the documents handed over by PW 16 Sh Dharam Pal Gupta to CBI and thus, an adverse inference may be drawn. He also argued that the oral evidence of witnesses examined by prosecution regarding non existence of the consignor, consignee and the transporter cannot be relied upon as the best evidence from the Telephone Department, Registrar's office and the Municipal record have not been produced. He thus submits that prosecution has failed to prove its case against accused No.1. Ld counsel has relied upon Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif, AIR 1968 (SC) 1413, J. Ramulu Vs. State of A.P., AIR 2008 SC 1505, P.K. Narayanan Vs. State of Kerala, 1995 (1) SCC 142, K.R. Purushothaman Vs. State of Kerala, 2005 Cri. L. J. 4648, Rita Handa Vs. CBI, 152 (2008) DLT 428, Anil Kumar Bose Vs. State of Bihar, AIR 1974 SC 1560, State (G.N.C.T) of Delhi Vs. Saqib Rahman @ CBI Case No. 28/12 13 of 51 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. 2, Moti Lal Mathur. 8.2 Shri Shaju Francis, counsel for accused No.2 Moti Lal Mathur has argued that intimation regarding loss was given by M/s Gupta Traders to Rai Singh Nagar Branch of NIC on 29-9-1998, on their letter head wherein telephone number was given. Similarly, on various letter heads of Om Oil Trading Company, vide which communications had been made, inter-alia, to NIC, DO-XIII, telephone numbers have been given. However, no investigation was conducted with regard to the said telephones in order to ascertain the existence of the consignor and the consignee. He further argued that no specimen signature/admitted signature of PW 16 Dharam Pal Gupta were obtained for comparison with the signatures on the report available in the claim file to prove that the said report has not been filed by PW 16 Dharam Pal Gupta. Even the sample of letter head of the said witness was not seized. It is also argued that there is no document to prove the existence of the business establishments/identity of various private witnesses examined by the CBI Case No. 28/12 14 of 51 prosecution, to prove the non existence of the consignor, consignee and the transporter. Mere oral evidence of a person regarding non existence of a business establishment is of no value unless it is shown that the said witness was bound to know the existence thereof. Therefore, the prosecution has not been able to show that the aforesaid witnesses were bound to know the existence of the consignor, consignee or the transporter and thus, their evidence is not conclusive. Ld counsel has further argued that no caution was issued by NIC against bogus claims, therefore, accused No. 2 Moti Lal Mathur had no occasion to disbelieve the surveyor's report. Even if survey report is found to be false there is no evidence to show that accused No.2 Moti Lal Mathur was party to any conspiracy.
Arguments on behalf of Accused No. 3, Arvind Khanna.
8.3 Sh R.K. Kohli, ld counsel for accused No. 3 Arvind Khanna has argued that PW22 Sh Kulbir Singh Sahi has proved the statement of account, Ex. PW22/B, and account opening form Ex. PW22/C of Om Oil Trading Company. The account opening form, Ex. PW22/C gives the details of the address of the said firm as well as the residential address of accused No.3 Arvind Khanna and his photograph. Further the statement of account, Ex. PW22/B show various bank transactions. Therefore, it is clear that Om Oil Trading Company was in existence. Further, the testimonies of PW26 Amrit Pal Singh and PW 27 Sarat Biswal are not reliable since they cannot be expected to know each and every person in Hemkunt Chambers, which is having more than 15 floors, each floor having about more than 30 flats. Accused No. 3 Arvind Khanna was himself not examined by IO or asked to produce his books of accounts. The best evidence i.e owner of B-15A Hemkunt Chambers has not been examined. Therefore, the prosecution has CBI Case No. 28/12 15 of 51 not been able to prove that Om Oil Trading Company was not in existence. Ld counsel further argues that from the testimonies of PW18 Satpal Aggarwal, PW 19 Praveen Gupta, PW 20 Gifty Munjal and PW 21 Mahavir Prasad, it has transpired that there were two Hanumangarh i.e. Hanumangarh town and Hanumangarh Junction. M/s Gupta Traders was located in Hanumangarh town regarding which only PW19 Praveen Gupta has deposed. Even his testimony is not definite that M/s Gupta Traders did not exist there and it also cannot be relied upon since it transpired during the testimony of PW28 B.M. Pandit that Sh Praveen Gupta was running his firm for the last six months only i.e since about November 2001. Similarly, testimony of PW21 Mahavir Prasad, Postman is of no help to the prosecution, since his statement is qualified by the fact that when he is on leave another Postman distributes the Dak and that his knowledge was limited to the parties to whom he delivers Dak. Ld counsel further contends that testimony of PW 23 Raj Kumar is not relevant since he stated that if a firm does not fall within a tax liability it may do business without registration with the commercial tax office. Ld counsel has also argued that regarding non existence of M/s Singh Road Lines, PW10 Dinesh Kumar Sharma, Postman has admitted that he was not the only Postman and PW13 Ashok Sehgal and PW14 Veer Pal have submitted that they were aware about the transporters in their own vicinity which goes to show that their testimonies cannot be conclusive. It also came out during cross examination of PW 13 Ashok Sehgal that M/s Singh Road Lines was operating at Rawal Pindi Garden but was not having office at Lal Kothi, near Chugh Warehouse, GT Road Chikkabarpur. No investigation has been made with regard to office of M/s Singh Road Lines at Rawal Pindi Garden. The testimony of PW 15 Mahipal Sharma is of no value since he admitted that he CBI Case No. 28/12 16 of 51 has no knowledge about the transporters in Chikkambarpur in the years 1997, 1998 and 1999. Thus, the prosecution has failed to prove the non existence of M/s Singh Road Lines. Ld counsel further argues that the testimony of PW 6 Sh Yogender Kumar Kaushik regarding his having not written letter, Ex. PW4/K is only oral evidence. However, the relevant documentary evidence i.e. claim intimation register, surveyor appointment register and dispatch register have not been produced and thus, his testimony is hit by section 59 of the IEA. Further, signatures of PW6 were not obtained for comparison with those on Ex. PW4/K. Ld counsel has also argued that the testimony of PW16 D.P. Gupta regarding his not having given report, Ex. PW16/B is also oral testimony. During his cross examination he has admitted having given a copy of survey report bearing the same number as on Ex. PW16/B to the IO but the same has not been produced on record. His bank accounts which could have shown the payment of survey fee in this case have also not been seized by the CBI. Further, specimen/admitted signatures of PW16 Dharam Pal Gupta and impression of his stamp/seal were not compared with those on Ex. PW16/B. Therefore, the prosecution has not been able to prove that surveyor report, Ex. PW16/B was forged. Ld counsel further argued that in offences of conspiracy, though direct evidence may not be available, prosecution is still required to prove its case through circumstantial evidence. Conspiracy cannot be assumed and it cannot be based on conjectures. He argues that there is no evidence regarding the presence of accused persons together or any communication between them to show that they had a meeting of mind or that they agreed to commit any illegal act. The prosecution has also not been able to lead any evidence to show that there was any mutual interest of the accused persons and there has been no evidence regarding trail of money CBI Case No. 28/12 17 of 51 after it was credited in the account of accused No. 3 Arvind Khanna. Prosecution has also not been able to show as to who was the Chief propounder of the conspiracy. Ld. Counsel has, in this regard, relied upon Subramanian Swamy Vs. A. Raja, (supra), Inspector of Police, Tamil Nadu Vs. John David, 2011 Cri LJ 3366, Hanuman Govind, Nargundkar and Another Vs. State of M.P., 1953 Cri LJ 129 SC, Sharad Biridhichand Sarda Vs. State of Maharashtra, 1984 Cri LJ 1738, K.R. Purushothaman Vs. State of Kerala, (supra), Rabindra Kumar Dey Vs. State of Orissa, 1977 AIR 170, S.L. Goswami Vs. State of Madhya Pradesh, 1972 AIR 716, R. Venkatakrishnan Vs. Central Bureau of Investigation, Criminal Appeal No. 76 of 2004 and State of Tamil Nadu through Superintendent of Police, CBI/SIT Vs. Nalini and 25 others, decided on 11-05-1999. Ld counsel finally submits that prosecution has failed to prove its case against the said accused.
Arguments on behalf of Accused No. 4, Ramesh Khaneja. 8.4 Shri Bhola Singh counsel for accused No.4 Ramesh Khaneja has argued that the appointment as a verifier of Globe Claim Recovery Consultants of which accused No.4 Ramesh Khaneja was the proprietor and payment of fees is not disputed by him. However, the report, Ex. PW4/E signed by one Ramesh Sharma is disputed. There is no opinion of handwriting expert to the effect that the report is signed by the said accused. He further argued that the testimonies of PW 10 Shri Dinesh Kumar Sharma, PW 13 Shri Ashok Sehgal, PW 14 Shri Veer Pal Singh and PW 15 Mahipal Sharma are not sufficient to hold that M/s Singh Road Lines did not exist. PW 24 Sh S.L. Garg, PW 28 Shri B.M. Pandit, PW 29 Shri Jyoti Kumar and PW 30 Shri R.P. Kaushal have themselves not conducted investigation with respect to CBI Case No. 28/12 18 of 51 M/s Singh Road Lines. Thus, no case has been proved against accused No.4 Ramesh Khaneja.
8.5 The general propositions of law laid down in the judgments cited by the parties have not been disputed.
Points for Determination.
9.1 I have heard all the parties and have also perused the record. In the instant case as per the charges framed, the following points are required to be determined:-
A. Charge u/s 120-B r/w Section 420, 467, 468, 471 IPC & Section 13 (2) r/w Section 13 (1) (d) of the PC Act, against all the accused persons namely accused No. 1, Yash Pal Babbar, accused No. 2, Moti Lal Mathur, accused No. 3, Arvind Khanna and accused No. 4, 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, Arvind Khanna and accused No. 4, 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 Om Oil Trading Company, New Delhi under the proprietorship of accused No. 3, Arvind Khanna, to the extent of Rs.2,53,871/- on the basis of forged/bogus/false documents i.e. invoice, GR, survey report 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?
CBI Case No. 28/12 19 of 51
iii. If so, whether in pursuance of the said agreement, accused No. 3,
Arvind Khanna, Proprietor of Om Oil Trading Company, Delhi obtained marine policy No. 4500327 for dispatch of Industrial Resin Chemical by Om Oil Trading Company, Delhi to M/s Gupta Traders, Hanumangarh (Rajasthan) and loss of consignment was reported by M/s Gupta Traders to NIC, Rai Singh Branch and the said branch purportedly deputed Mr. Dharam Pal Gupta for survey and a false report was submitted and further Branch Manager, Rai Singh Nagar, Rajasthan purportedly forwarded the report along with relevant papers to NIC, DO-XIII, New Delhi and accused No. 2, Moti Lal Mathur received the same and accused No. 3, Arvind Khanna submitted claim form on behalf of Om Oil Trading Company, NIC, DO-XIII, New Delhi, and accused No. 2, Moti Lal Mathur, Administrative Officer, processed and recommended the insurance claim and accused No. 1, Yash Pal Babbar sanctioned the claim amount of Rs.2,53,871/- in favour of Om Oil Trading Company, Delhi on the basis of false/bogus/forged documents and accused No. 3, Arvind Khanna received the cheque of claim amount which was credited in account No. 1495 of Oil Trading Company, Delhi and accused No. 4, Ramesh Khaneja of Globe Claims Recovery Consultant submitted false investigation report without conducting investigation and received Rs.4,180/- as investigation fee and Rs. 2,025/- as recovery fee?
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,
CBI Case No. 28/12 20 of 51
accused No. 1, Yash Pal Babbar obtained pecuniary advantage to the tune of Rs.2,53,871/- for accused No. 3, Arvind Khanna of Om Oil Trading Company, Delhi 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.2,53,871/- for accused No. 3, Arvind Khanna, Proprietor of Om Oil Trading Company and caused corresponding loss to the NIC by persuading to forward and recommending the claim proposal on the basis of false/forged/bogus documents for grant of above claim which was sanctioned on his recommendation?
(iii) If so, whether accused No. 2, Moti Lal Mathur did as above by use of illegal means and abuse of his official position?
D. Charge u/s 420 IPC against accused No. 3, Arvind Khanna.
(i) Whether during the period 1998-99 at Delhi and other places, accused No. 3, Arvind Khanna deceived NIC, DO-XIII, New Delhi?
(ii) If so, whether accused No. 3, Arvind Khanna induced NIC, DO-
CBI Case No. 28/12 21 of 51 XIII, New Delhi to sanction insurance claim of Rs.2,53,871/- in favour of Om Oil Trading Company on the basis of false/bogus/forged documents i.e. invoice, survey report, GR etc. ?
(iii) If so, whether accused No. 3, Arvind Khanna had induced NIC, DO-XIII, New Delhi as above dishonestly?
(iv) If so, whether accused No. 3, Arvind Khanna received the cheque of claimed amount which was credited in account No. 1497of Om Oil Trading Company of which, he was the Proprietor?
E. Charge u/s 471 r/w section 467 & 468 IPC against accused No. 3, Arvind Khanna.
(i) Whether during the period 1998-99 at Delhi and other places, accused No. 3, Arvind Khanna 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.2,53,871/- in favour of Om Oil 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?
F. Charge u/s 468 IPC against accused No. 4, Ramesh Khaneja.
(i) Whether during the period 1998 at Delhi and other places, accused No. 4, Ramesh Khaneja, being Proprietor of Globe Claims Recovery Consultant was appointed as investigator, in the claim of Om Oil Trading Company?
(ii) If so, whether accused No. 4, Ramesh Khaneja committed
CBI Case No. 28/12 22 of 51
forgery by submitting a false investigation report to NIC, DO-XIII, New Delhi and received investigation fee and recovery fee for which he was not entitled?
(iii) If so, whether accused No. 4, Ramesh Khaneja intended that the aforesaid forged document i.e. false investigation report shall be used for the purpose of cheating NIC?
G. Charge u/s 471 IPC against accused No. 4, Ramesh Khaneja.
(i) Whether during the period 1998-99 at Delhi and other places, accused No. 4, Ramesh Khaneja, being Proprietor of Globe Claim Recovery Consultant was appointed as Investigator in the claim of Om Oil Trading Company?
(ii) If so, whether accused No. 4, Ramesh Khaneja used false investigation report as genuine for inducing NIC, DO-XIII, New Delhi to sanction insurance claim of Rs.2,53,871/- in favour of Om Oil Trading Company?
(ii) If so, whether he had used the aforesaid document as genuine knowing or having reason to believe the same to be forged?
(iii) If so, whether he did so fraudulently or dishonestly?
10.1 It is pertinent to refer to Sec. 3 of the Indian Evidence Act, 1872 (hereinafter called as 'IEA') which defines the term 'proved' and d' isproved' as under :-
" ' Proved'- A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists"
" ' Disproved'- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers CBI Case No. 28/12 23 of 51 its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist."
10.2 It is well settled that the word 'proof' means anything which serves, either immediately or mediately to convince the mind of the truth or falsehood of a fact or proposition; and the proofs of matters of fact in general are our senses, the testimony of witnesses, documents and the like. " Proof" does not mean proof to rigid mathematical demonstration, because that is impossible; it means such evidence as would induce a reasonable man to come to the conclusion (vide Emperor v/s Shafi Ahmed, (1925) 31 Bom. LR 515]. Further, Sec. 134 of IEA stipulates that no particular number of witnesses shall in any case be required for the proof of any fact.
10.3 In human affairs, everything cannot be proved with mathematical certainty and the law does not require it. Legal proof is something different from moral certainty about the guilt of an accused person. Suspicion, however, great, cannot take the place of legal proof. A moral conviction, however strong or genuine, cannot amount to a legal conviction supportable in law. The well known rule of criminal justice is that " fouler the crim e, higher the proof." [ vide Sharad Birdhichand v. State of Maharashtra, (surpa)].
10.4 In criminal matters, the prosecution is required to prove its case beyond a reasonable doubt. A benefit of doubt is the condition of the mind which exists where the judges cannot say that they feel an abiding condition, a moral certainty of the truth of the charge. It must not be a mere doubt of a vacillating mind that has not the moral courage to decide upon a difficult and complicated question and therefore, takes shelter in an idle scepticism (vide 1977 CrLJ 59) CBI Case No. 28/12 24 of 51 10.5 It is well settled that the burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.
10.6 However, the rule in section 106 of the Act would apply when the facts are 'especially within the knowledge of the accused' and it would be impossible or at any rate disproportionately difficult for the prosecution to establish such facts which are 'especially within the knowledge of the accused'. The prosecution is not required to eliminate all possible defences or circumstances which may exonerate him. If certain facts are in the knowledge of the accused then he has to prove them. Of course the prosecution has to prove prima facie case in the first instance. In this regard reference can be made to Murlidhar v. State of Rajasthan, AIR 2005 SC 2345, State of Punjab v. Karnail Singh, (2003) 11 SCC 271, Trimukh Maroti Kirkan v. State of Maharashtra, 2007 Cr LJ 20 (SC), Santosh Kumar Singh v. State, (2010) 9 SCC 747 and Ram Singh v. State, 2011 Cr LJ 618 (Raj.), AIR 1959 SC 1390, AIR 1937 Rang 83, 1968 Cri LJ 848, AIR 1967 Mys 79 and 1964 (1) Cri LJ 688.
10. 7 Criminal conspiracy is often hatched in secrecy and for proving the offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence. However, it cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence. Where the prosecution case rests merely on circumstantial evidence, the facts established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other CBI Case No. 28/12 25 of 51 hypothesis except that the accused is guilty. However, on the basis of evidence led by prosecution, if two views are possible, one pointing to the guilt of the accused and other to his innocence, the one in favour of the accused must be accepted. In this regard, reference can be made to Saju Vs. State of Kerala, (2001) 1 SCC 378, Sherimon Vs. State of Kerala, (2011) 10 SCC 768, P.K. Narayanan Vs. State of Kerala, (1995) 1 SCC 142, State of M.P. V Sheetla Sahai, 2009, Cr. LJ 4436, Shivaji Saheb Rao Bobde v. State of Maharashtra, AIR 1973 SC 2622, Harendra Narain Singh v. State of Bihar, AIR 1991 SC 1842 and Baboo Ram, v. State, 1996 Cri LJ 483.
10.8 The essence of conspiracy is unlawful combination and the complicity of the accused has to be decided after considering all the circumstances proved, before, during and after occurrence. Agreement between the conspirators may also be proved by necessary implication. It is not necessary that each member of a conspiracy must know all the details of the conspiracy. Facts established should be consistent only with the hypothesis of guilt of the accused. It does not mean that each and every hypothesis suggested by accused must be excluded by proved facts. In this regard reference can be made to Chaman Lal Vs. State of Punjab, AIR 2009 SC 2972, R.K. Dalmia V The Delhi Administration, AIR 1962 SC 1821, Muriappan Vs. State of Tamil Nadu, AIR 2010 SC 3718 and Firozuddin Basheeruddin vs State of Kerala, (2001) 7 SCC 596.
10.9 It is also pertinent to refer to Sec 313 (4) of the Cr.P.C. which stipulates that the answers given by the accused, in his statement under this section, may be taken into consideration in such enquiry or trial, and put in evidence for or against him in any other enquiry into, or trial for, any other offence which CBI Case No. 28/12 26 of 51 such answers may tend to show he has committed. It is well settled that admission or confession of the accused in the statement under section 313, Cr PC in the course of trial can be acted upon and the court can rely on these confessions to proceed to convict him. In this regard reference can be made to Dharnidhar v. State of Uttar Pradesh, (2010) 7 SCC 759 and State of Maharashtra v. Sukhdev Singh, AIR 1992 SC 2100.
10.10 It is also well settled that evidence of one accused or admission or action or statement made by one of the accused can be used as evidence against the other by virtue of Section 10 of the Indian Evidence Act. In this regard reference can be made to Tribhuvan Nath Vs. State of Maharashtra, AIR 1973 SC 450 and Kehar Singh v State, AIR 1988 SC 1883. 10.11 Both the parties have relied upon Claims Procedural Manual, which was admittedly applicable at the relevant time. The said manual, while laying down the procedure for processing and settlement of marine claims provides that the procedures laid down in the Manual are not exhaustive and are of general nature. It further provides that in some cases, the requirements laid down in the Manual could not be in practice complied with due to particular circumstances applicable to the individual case and such non compliance should not therefore, make the claim as not payable and the claim settling authority is to use his discretion by recording his reasons in detail. 10.12 It is in the light of the above position of law that evidence is to be appreciated.
Facts Not in Dispute.
11.1 From the evidence and other material on record and arguments advanced by the parties, there appears to be no dispute about the following facts :-
CBI Case No. 28/12 27 of 51
(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) Accused No. 3, Arvind Khanna of Om Oil Trading Company took
a marine policy No. 4500327 on 24-9-1998 for Rs 5,90,000/- for dispatch of industrial resin/chemicals from Delhi to M/s Gupta Traders, Opposite Bus Stand Hanumangarh, Rajasthan, vide GR No. 2380 dated 25-9-1998 of M/s Singh Road Lines, Lal Kothi, near Chugh Warehouse, GR Road, Chikampur Delhi-UP Border,
(d) Claim form was submitted by Om Oil Trading Company in DO- XIII NIC, New Delhi,
(e) Accused No.2 Moti Lal Mathur appointed Globe Claim Recovery Consultants as Investigator on 6-10-1998,
(f) Globe Claim Recovery Consultant submitted report dated 17-10-1998 to DO-XIII NIC, along with Investigation fee bill dated 17-10-1998,
(g) The Investigation fee of Rs 4180/- was paid by NIC to Globe Claim Recovery Consultants,
(h) The claim was processed and recommended, inter-alia, on the basis of purported documents viz; letter dt. 06-10-1998, Ex. PW4/K of Rai Singh Nagar Branch of NIC, report dt. 05-10-1998, Ex. PW16/B of one Sh Dharam Pal Gupta and claim intimation letter dt. 29-9-98, Mark K-1 of M/s Gupta Traders, by accused No.2 Moti Lal Mathur for Rs 2,53,871/- which was sanctioned by accused No.1 Yash Pal Babbar,
(i) Claim amount was paid to Om Oil Trading Company vide cheque No. 245197 dated 22-10-1998 and proceeds thereof were credited to current CBI Case No. 28/12 28 of 51 account No. 1495 of the insured in Punjab & Sind Bank, Ranjeet Nagar, New Delhi,
(j) Globe Claim Recovery Consultants was appointed as recovery agent,
(k) Globe Claim Recovery Consultants deposited Rs 12,500/- as recovery amount vide cheque No. 670438 dated 19-12-1998 of Oriental Bank of Commerce, Delhi in DO-XIII NIC,
(l) Globe Claim Recovery Consultant submitted recovery fee bill, and
(m) Recovery fee of Rs 2025/- was paid to Globe Claim Recovery Consultants vide cheque No. 245344 and disbursement voucher 2641 dated 29-10-1998.
Facts in Dispute 12.1 However, the following facts are in dispute:-
(a) Om Oil Trading Company did not exist at its given address,
(b) M/s Gupta Traders did not exist at its given address, (c ) M/s Singh Road Lines did not exist at its given address,
(d) No consignment, for which policy in question was taken, was sent by Om Oil Trading Company to M/s Gupta Traders, Haumangarh,
(e) No intimation was received by NIC, Rai Singh Nagar Branch from M/s Gupta Traders regarding loss in this case and thus their letter dated 29-9-98, Mark K-1, is forged,
(f) No surveyor was appointed by NIC, Rai Singh Nagar Branch in this case and thus survey report dt. 5-10-98, Ex. PW16/B is forged,
(g) Letter dt. 06-10-1998, Ex. PW4/K was not written by NIC, Rai Singh Nagar Branch to NIC, DO-XIII, New Delhi and thus the same is forged, CBI Case No. 28/12 29 of 51
(h) Investigation report dated 17-10-1998 submitted by Globe Claim Recovery Consultants is false, and
(i) Globe Claim Recovery Consultants had not made any recovery from M/s Singh Road Lines, Appreciation of Evidence
13.1 The main fact in issue in this case is whether there was any loss of consignment of industrial resin purportedly sent by Om Oil Trading Company, New Delhi to M/s Gupta Traders, Hanumangarh Rajasthan, through M/s Singh Roadlines, Chikambarpur, Delhi-UP Border as covered by the insurance policy. The essential parts/components of the purported loss of consignment are existence of Om Oil Trading Company, New Delhi, existence of M/s Gupta Traders, Hanumangarh Rajasthan, existence of M/s Singh Roadlines, Chikambarpur, Delhi-UP Border, sending of the consignment of industrial resin and loss/damage to the said consignment. If any of the above part/component of the above transaction in question is disproved, it would, by necessary implication, follow that there was no loss of consignment and that the claim amount has been fraudulently obtained.
13.2 Prosecution has led evidence and Ld. PP has advanced argument to the effect that complete documents required for processing and settlement of claim are not available in the claim file which shows that the claim has been fraudulently obtained. Ld. Defence counsels contend that the complete chain of handing over of record has not been proved and thus absence of any document in the claim file is of no relevenace. It is pertinent to note that the claim files were the record of DO-XIII, NIC. The officer/official of DO-XIII from whose custody, the said files/record were seized for the first time has neither been specified nor examined by the prosecution to prove that CBI Case No. 28/12 30 of 51 complete record with respect to the claim in question was seized, or that the record produced in the court was the complete record, as available in DO-XIII at the time of sanction of the claim. Further, no inventory of the documents available in the claim files was prepared, and the record seized was also not sealed either at the time of their seizure by the officers of Regional Office of NIC or by the IO. Thus, no sanctity of preservation of documents seized was maintained. Therefore, the above contention of Ld. PP is not tenable. In this regard, a reference can also be made to the judgment dated 28-05-2013 of the Hon'ble High Court of Delhi in Crl. Appeal No.1455/2012, Anil Maheshwari v/s CBI.
Non--existence of Om Oil Trading Company at B/15-A, Hemkunt Chambers, 89, Nehru Place, New Delhi.
13.3 PW 22 Shri Kulbir Singh Sahi, Branch Manager, Branch Office Ranjeet Nagar, Punjab & Sind Bank, testified that vide letter dt. 31-1-2002 Ex. PW 22/A of Punjab & Sind Bank, Ranjeet Nagar branch, the account statement, Ex. PW 22/B of current account No. 1495 and a photocopy of current account opening form Ex. PW 22/C were sent to Shri Alok Mittal, the then S.P., CBI. The letter bears signatures of Shri S.P. Singh at point 'A'. During his cross-examination, he stated that Ex. PW22/C is an attested copy of account opening form of account No. 1495 of Om Oil Trading Company, proprietor of which is shown as Arvind Khanna. Photograph of accused Arvind Khanna is also pasted on the said form.
13.4 It is pertinent to note that in the account opening form dt. 5-10-1998, Ex. PW22/C, the address of Om Oil Trading Company has been given as , " B-1, Guru Arjun Dev Bhawan, Ranjeet Nagar Complex, New Delhi-110008" and the name of the Proprietor of Om Oil Trading Company CBI Case No. 28/12 31 of 51 has been mentioned as " Arvind Khanna" . However, according to the policy dt. 24-9-1998 Ex. PW4/J and letter dt. 6-10-1998, placed at page 13 of the claim file, Ex. PW2/A, the address of Om Oil Trading company has been given as , " B/15-A Hemkunt Chambers. 89, Nehru Place, New Delhi-110019, Telefax: (O) 6410974, (R) 8-260949." Further in the marine claim form placed at page 9 of the file Ex. PW2/A, the name of proprietor of Om Oil Trading Company has been mentioned as " Om Prakash" . The letter dt. 6-10-1998 has also been signed as 'Manager' in the name of " Om Prakash" . There is no explanation by accused No. 3 Arvind Khanna regarding the discrepancy in the name of proprietor and address of Om Oil Trading Company. This indicates the effort on the part of accused No. 3 Arvind Khanna to conceal his identity in the documents submitted to NIC and his dishonest intention, from the very beginning, to cheat NIC.
13.5 PW 26 Sh. Amrit Pal Singh has testified that he is doing business of property dealer at Hemkunt Chamber, 89, Nehru Place, New Delhi. He is doing business since 1986 but he is in the above building since 1989. He knows almost everybody in the said building being the oldest dealer in the building. According to him, there is no oil dealer in the said building. He does not know any Om Oil Trading Company. No such firm is located in the above building, as per his knowledge. During his cross-examination, he stated that in Hemkunth Chamber Building, there is one basement, stilt floor, ground floor, mezzanine floor and thereafter, 15 floors and a terrace. On each floor, there are about 30-32 flats. He can not say for sure that he knows each and every person of the said building. He can tell almost all the names in which occupants of Hemkunth Chambers, known to him, are doing their business. There is no such chance that someone doing business in the name of Om Oil CBI Case No. 28/12 32 of 51 Trading in Hemkunt Chambers may not be known to him. He has not heard anybody doing the business of oil from Hemkunth Chambers. 13.6 PW 27 Sh. Sarat Biswal has testified that he is supervising the maintenance work in Hemkunth Building i.e Hemkunth Chamber, 89, Nehru Place, since 1986-87. This building is a 15 storeyed building, including basement, stilt floor, upper ground mezzanine and first to fifteen floors. He knows almost everybody in the building whose name plates, company names and letter boxes are displayed. The address, B-15-A in the building would denote 'B' for basement, '15-A' for flat number. As per his knowledge, there had been no company by the name of Om Oil Trading in the said building. During his cross-examination, he stated that B-15-A is there in the above building. He does not know the complete name of the owner of the said flat. One Mr. Sharma is the owner. He has never asked the said Mr. Sharma as to what is his business or occupation. He can not say about the same. Till the time, the name plate of the company is displayed, he can not come to know about the same. He denied the suggestion that a firm by the name of Om Oil Trading Co. had been operating from the premises of B-15-A of Hemkunth Chambers around the year 1998.
13.7 The testimonies of the above witness have gone unimpeached. The evidence of the above witnesses when seen in light of the fact that in the policy and letter dt. 6-10-1998, the address of Om Oil Trading Company has been given as " B-15A, Hemkunt Chambers, 89, Nehru Place, New Delhi-110019" and name of its Proprietor has been stated as 'Om Prakash', which is different from the address and name of Proprietor given in the account opening form, it is clearly established that Om Oil Trading Company did not exist and was not functioning from it's address given in the policy.
CBI Case No. 28/12 33 of 51 Non - existence of M/s Gupta Traders, Opp. Bus Stand, Hanumangarh, Rajasthan 13.8 It is relevant to note that as per the letter dated 29-9-1998, Mark K-1 of M/s Gupta Traders, its address is given as, " Opp. Bus Stand, Hanumangarh, (Rajasthan)." It also bears RST No. "01319-04627". In this regard, PW 18 Sh. Sat Pal Aggarwal has testified that he was running a shop in the name of M/s Aggarwal Trading Company, opposite Kumar Petrol Pump near Bus Stand, Hanumangarh, Rajasthan from 1991 to 2001 and the said firm was dealing in the business of Oxygen gas for welding purposes. He had never seen any firm or shop in the name of M/s Gupta Traders near bus stand, Hanumangarh, Rajasthan or whether any such firm dealing with the industrial resin ever existed near bus stand to his knowledge in the year 1998. During his cross-examination, he stated that there are two Hanumangarh, one is known as Hanumangarh Town and another known as Hanumangarh Junction and he is resident of Hanumangarh Junction. To his knowledge, there was no such shop, M/s Gupta Traders in front of bus stand. 13.9 PW 19 Sh. Parveen Gupta has testified that he is running a shop of spare parts in the name of M/s Gupta Enterprises situated near bus stand, Junction Road, Hanumangarh Town, Rajasthan. His firm deals in spare parts and lubricants. His uncle is also running a shop in the name of M/s Gupta Motors and M/s Gupta Automobiles. These firms are also dealing in spare parts and lubricants. M/s Gupta Motors is a little ahead i.e. 500 meters of bus stand and M/s Gupta Automobiles is about 8 km from Hanumangarh Town Bus stand. He had neither heard nor seen any firm in the name of M/s Gupta Traders opposite Bus Stand Hanumangarh Town, Rajasthan which was dealing in industrial resin in the year 1998. His firm did not deal in industrial CBI Case No. 28/12 34 of 51 resin and he had never purchased any industrial resin from Om Oil Trading Company of New Delhi. The firm of his uncle, namely, M/s Gupta automobile and M/s Gupta Motors also do not deal in industrial resin. He had neither heard nor seen any firm in the name of M/s Oil Trading Company and M/s Gupta Traders opposite bus stand, Hanumangarh Town, Rajasthan. During his cross-examination, he stated that he does not know the business of every shopkeeper near Bus Stand, Hanumangarh Town but he knows most of them. He is not aware what is industrial resin. He denied the suggestion that either of his two uncles could have done the business of industrial resin. He further stated that it was possible that some person was doing business of industrial resin near the bus stand of Hanumangarh Town which was not in his knowledge.
13.10 PW 20 Sh. Gifty Munjal has testified that he has a business of lab chemicals in the name of M/s Jagdamba Enterprises opposite Kumar Petrol Pump, Distt. Hanumangarh Junction, Rajasthan. He is running this business at the aforesaid address since the year 1992. He is stockist of Nice Chemicals. He is also dealing in Chemicals supplied by Dr. Reddy lab and RDH Chemicals. In the year 1998 also he was doing the same business at the above said address. The bus stand of Hanuman Garh is at a distance of about 200-400 meters. In the year 1998 there was no shop or business in the name of M/s Gupta Traders dealing in Industrial Resin or otherwise, opposite bus stand Hanuman Garh, Rajasthan. To his knowledge, there was no firm named M/s Gupta Traders in that locality dealing in Industrial Resin in the year 1998. During his cross-examination, he stated that he does not claim to know every shopkeeper or his business in front of the bus stand. He personally know about few shops, around 5/7, close to his shop. As far as he know, there was CBI Case No. 28/12 35 of 51 no firm by the name of Gupta Traders in that area. He denied the suggestion that the firm Gupta Traders did exist in the year 1998 in front of the bus stand Hanuman Garh. He further stated that Hanuman Garh Town and Hanuman Garh Junction are two separate area. Both have bus stands. He lives in Hanuman Garh Junction. His establishment is situated opposite Kumar Petrol Pump near bus stand of Hanuman Garh Junction. He has no knowledge about shops and area around the bus stand of Hanuman Garh Town. He cannot say if the firm by the name of M/s Gupta Traders was operating from opposite bus stand in Hanuman Garh Town.
13.11 PW 21 Sh. Mahavir Prasad working as a Postman and posted at the Post Office Hanumangarh Town, Rajasthan, testified that he is in this post office since 1984. In the year 1998 his duties were to distribute letters in the bus stand area of Hanuman Garh, Rajasthan. He never delivered any letter in the name of M/s Gupta Traders opposite bus stand Hanuman Garh, Rajasthan as there was no such firm existing as M/s Gupta Traders, opposite bus stand Hanuman Garh during 1998. During his cross-examination, he stated that he was the only one to distribute Dak in the area around bus stand Hanuman Garh. Whenever he used to be on leave, some other postman used to deliver the Dak in the said area. He denied the suggestion that there may be a firm by the name of M/s Gupta Traders but he may not know of it since he never had any Dak to deliver to the said address. He further stated that he knows every person of the said locality since he is residing at a distance of one kilometer from bus stand Hanuman Garh. As far as he remembers, he had received one Dak also which he had returned since there was no firm by that name of M/s Gupta Traders. He admitted that there are two areas i.e. Hanuman Garh Town and Hanuman Garh Junction.
CBI Case No. 28/12 36 of 51 13.12 PW 23 Sh. Raj Kumar has testified that he was posted as
Commercial Tax Officer, Circle A, Hanumangarh. In the year 2002, he was posted as Assistant Commercial Tax Officer, Flying Squad, Chirawa, Jhunjhunu. Letter dated 03.05.2002 Ex. PW 23/A of Commercial Tax Officer, Hanumangharh Town (D-15) was issued by their office which is signed by Shri Narender Singh Rathore, the then Commercial Tax Officer at point A. He has seen signatures of Shri Narender Singh Rathore in the files. He was not posted in the same office with him. Sh. Narender Singh Rathore was posted as Commercial Tax Officer, Hanumangarh from 01-03-2002 to 14-11-2002. During his cross-examination, he stated that anybody doing business in Hanumangarh, who is liable to pay commercial tax, is required to be registered with the commercial tax office. Even if, there is no tax liability, a businessman can still voluntarily get himself registered with the commercial tax office. If a firm does not fall within the ambit of tax liability, it may do business without registration with the commercial tax office. 13.13 It can be seen that the address of M/s Gupta Traders, available on record was " Opp. Bus Stand, Hanumangarh (Rajasthan)" . No other specific details regarding premises/shop/ building number etc was given. PW 18 Sh Satpal Aggarwal was running his shop opposite Kumar Petrol Pump, near bus stand Hanumangarh Rajashtan and he was resident of Hanumangarh Junction. PW 19 Sh Praveen Gupta was running shop near Bus Stand, Junction Road Hanumangarh Town and PW 20 Gifty Munjal was having his business opposite Kumar Petrol Pump, Distt. Hanumangarh Junction. Thus, even if there were two Hanumangarh, Hanumangarh Town and Hanumangarh Junction, CBI had made enquiries in the vicinity of the bus stand of the said two places. The said witnesses in the normal course of CBI Case No. 28/12 37 of 51 human affairs were likely to know about the existence of M/s Gupta Traders, if it so existed. Accused No. 3 Arvind Khanna, if his version is to be believed, would have interacted with the owner/manager of M/s Gupta Traders and known their names etc. However, no question has been asked by accused No. 3 Arvind Khanna to the above witnesses with regard to the owner/manager of M/s Gupta Traders. The testimonies of these witnesses are quite natural and believe worthy.
13.14 Further, the testimony of PW 21 Sh. Mahavir Prasad has gone unimpeached. A postman, in the normal course of his duties is supposed to know the inhabitants and business establishments in the area of his beat. His testimony that he has never delivered any letter in the name of M/s Gupta Traders opposite bus stand Hanumangarh, Rajasthan as there was no such firm existing during 1998, corroborates the prosecution version that the said firm did not exists at its given address.
13.15 The testimony of PW 23 Sh. Raj Kumar has also gone unimpeached and unrebutted. The purported consignment was of 1800 litre of industrial resin which means that the same were not meant for personal consumption. The non registration of M/s Gupta Traders with the commercial tax office also support the prosecution version that the said firm did not exist. The aforesaid evidence, when seen in conjunction with the fact, as dicussed later, that no purported letter dt. 29-09-98, Mark K-1 of M/s Gupta Traders was received by NIC, Rai Singh Nagar Branch, lead to the inference that in all probability M/s Gupta Traders did not exist at their given address. Non - existence of M/s Singh Road Lines at Lal Kothi, near Chugh Warehouse, G.T. Road, Chikambarpur, Delhi-UP Boarder 13.16 In the verification report, Ex. PW4/G, the address of M/s Singh CBI Case No. 28/12 38 of 51 Road Lines has been mentioned as " Lal Kothi, near Chugh warehouse, G.T. Road, Chikambarpur, Delhi-UP Border". No document of the said transporter is available on record. PW 10 Sh. Dinesh Kumar Sharma has testified that in March 2002 he was working as Postman at Chikambarpur, Ghaziabad, UP. From Dec. 1988, he was delivering the Dak to the transporters situated in the area at Chikambarpur. He had never served Dak to M/s Singh Road Lines, Lal Kothi, Near Chugh Warehouse, G.T. Road Chikambarpur as he had never came across the transporter. This transport was not existing at the given address. During his cross-examination, he stated that his area of delivery assignment comprises of, from Chikambarpur Telephone Exchange, 6th Milestone, Rawal Pindi Garden, Jawahar Park, Shaheed Nagar. One more postman was posted for delivery of dak in this area. He admitted that basis of his conclusion that this firm did not exist at the stated address is because he never received any Dak for delivery to these firms. He cannot say if the second postman who was posted in the year 2002 may have delivered the dak to such three firms. He admitted that Chikambarpur is very haphazardly constructed, and several offices are known to be resident in one building at many places in the entire area.
13.17 PW 13 Sh. Ashok Sehgal has testified that in March, 2002, he used to do the business under the name and style of M/s Assam Golden Transport Corporation, Opposite OBC Bank, Near Telephone Exchange, 6 Milestone, Chikambarpur, UP Border, Ghaziabad, UP. He used to know about the transporters who were his neighbourers but he did not know the entire transporters in the area. Mostly, he knew the transporters near the Telephone Exchange. He categorically stated that though M/s Singh Roadlines was operating at Rawalpindi Garden, Chikambarpur but it was not having its office CBI Case No. 28/12 39 of 51 at Lal Kothi, near Chugh Warehouse, G.T. Road, Chikambarpur, Delhi-UP border. During his cross-examination, he admitted that Chikambarpur is an unauthorized area and there is no systematic inhabitation. The construction in the area is not as per the sanctioned plan and is raised in a haphazard manner. In some plots, there are various rooms and each room is occupied by separate transporter. There is a trade association of transporters in the area. The basis of his saying that the above firm was not existing at the said addresses is his personal knowledge about the area and the transporters working there as they used to have interaction on different occasions. He admitted that this transporter was not within his vicinity and therefore, not in his knowledge and it may be possible that they may be operating from interior which may not be in his knowledge.
13.18 PW 14 Sh. Veer Pal Singh has testified that he was working as Manager since 1997 in the firm namely M/s Okara Roadways, 6 Milestone, Post Office Chikambarpur, Ghaziabad, UP. Shri Ramandeep Singh is the owner of the above transport. He is aware of the transporters within the vicinity of his office either by name of by face of the owner. He is not aware of M/s Singh Roadlines, if working near the vicinity of their office. He had not seen their sign board. During his cross-examination, he admitted that the shops and establishments at 6 Milestone do not have any municipal number. It is an unauthorized area constructed in disorganized way. In one compound there are 4 to 5 offices and there are various offices in separate building. He further admitted that he may not have come across the said transporter because he had neither dealt with this transporter nor he had seen them in the area.
13.19 PW 15 Sh. Mahipal Sharma has testified that in the year 2001,
CBI Case No. 28/12 40 of 51
he was posted at the Police Chowki Seema, P.S. Sahibabad, Distt. Ghaziabad, UP. He was looking after the Chikkambarpur area. He had never heard of the transporter by the name of M/s Singh Roadlines and they were not in existence in the Chikkambarpur area. During his cross-examination, he admitted that area of Chikkambarpur is an unregulated and unauthorized area with no municipal number. He further admitted that he has no knowledge about the transporters in the area of Chikambarpur in the years 1997, 1998 and 1999.
13.20 It can be seen that the only address of M/s Singh Road Lines available on record is " Lal Kothi, near Chugh Warehouse, GT Road, Chikkambarpur, Delhi-UP Border" . PW13 Ashok Sehgal and PW 14 Sh Veer Pal Singh were also in the business of transport in the same area i.e. Chikambarpur . In the normal course of business and trade they were likely to know the existence of M/s Singh Road Lines. Similarly, PW 10 Sh Dinesh Kumar Sharma, who was working as postman as Chikambarpur would have known about the existence of M/s Singh Road Lines, if it so existed. The insured/consignor has purportedly sent the goods through M/s Singh Road Lines. He would have thus known about the owner/manager of the said firm. However, no question had been put to the above witnesses regarding the owner/manager of the said transport company. Once the prosecution has prima-facie proved, through the above evidence, that the said transporter did not exist, onus shifted upon the accused No. 3, Arvind Khanna and accused No. 4, Ramesh Khaneja to show that it so existed, because such a fact, if true, would be especially within their knowledge. The accused persons have not led any evidence to show the existence of M/s Singh Road Lines. In view of the aforesaid, it appears that no such transport company existed at the aforesaid CBI Case No. 28/12 41 of 51 address.
No Role of NIC, Rai Singh Nagar Branch.
13.21 PW 6 Sh. Yogender Kumar Kaushik, who was working as a Branch Manager of NIC at Rai Singh Nagar from the year 1996 till October 2002, testified that the file mark D-5, Ex. PW 2/A of National Insurance Company Ltd. Division No. 13 relates to a Marine Claim. He further testified that the letter dated 06/10/2008, Ex. PW 4/K does not bear his signature and he has no knowledge of the same. Ex. PW 4/K is not a letter sent from his Branch. The Branch office mentioned therein is Dhan Mandi, Raising Nagar and this letter was not received in his Branch. The branch office where he was posted was Dhan Mandi, Raising Nagar. He further stated that the letter dt. 29-9-1998, Mark K-1 does not bear his signature. Mark K-1 was never received in his office. It does not bear any remark of any officer of Dhan Mandi , Rai Singh Nagar Branch as he was the only officer posted at that Branch and does not bear any remark in his writing. The portions K-2 to K-3 on mark K-1 are not in his hand writing nor do they bear his signature. The words, " deputed D.P. Gupta for loss assessment" mentioned at K-2 to K-4 are not in his writing. He did not depute Mr. D.P. Gupta for loss assessment. He also testified that at points K5 to K6 on Mark K1 it is mentioned, " Hanuman Garh (Rajasthan)" . They have a branch office at Hanuman Garh (Rajasthan) and if there had been loss at Hanumangarh, the officer for loss assessment would have been deputed by the Hanuman Garh and not by the Raising Nagar Branch. He further stated that the monogram of the National Insurance Company Ltd. and the words National Insurance Company Ltd are always in blue on the original letter issued from a letter pad of the National Insurance Company Ltd. On the letter dated 6-10-98, Ex. PW 4/K, the portions at Z-1 CBI Case No. 28/12 42 of 51 and Z-2 to Z-3 are in black and thus Ex. PW 4/K is not a letter on the original letter pad of the National Insurance Company Ltd. Ex. PW 4/K is not a genuine letter issued by the NIC. During his cross examination, he testified that Mr. D. P. Gupta was deputed as a surveyor by NIC at Raising Nagar branch for assessment of loss claims other than marine claims because he was an Electrical Engineer. He further stated that the controlling Officer of the Divisional Office closest to the destination of receipt is empowered to appoint a surveyor and that as per his knowledge the Branch manager was not so empowered. He also testified that the claim qua which mark K1 is on record never came to him and that Suratgarh and Ganganagar are nearer than Raising Nagar. He further stated that in his office the typewriter was not in working condition from 1996 to 1999 and thereafter there was computers. Letters from his office were mostly handwritten. He denied the suggestion that the letter 6-10-1998, Ex. PW4/K originated from his office. 13.22 PW 16 Sh. Dharam Pal Gupta has testified that in the year 1999 he was doing the work of Surveyor and Loss Assessor with all the four general insurance companies and was residing at H. No. 9/219, Housing Board Colony, Sri Ganga Nagar, Rajasthan. He wrote letter No. D.P/98-99/INBT/1 dt. 4-3-1999, Ex. PW 16/A bearing his signature and seal at point A, to the Regional Manager, NIC, Sri Ganga Nagar in response to a query about the two survey reports not prepared by him. Through this letter he had informed that he had not prepared the reports, these were not his letterheads and do not bear his signatures and seals. In fact, the photocopy of his letterhead was used for the preparation of false reports. He also stated that the Marine Survey report dated 05-10-1998, Ex PW 16/B of one Sh. Dharampal Gupta, Engineer, Surveyor and Loss Assessor along with the CBI Case No. 28/12 43 of 51 schedule, total running into four pages, placed at page No. 3 to 6 of the Marine claim file, Ex. PW 2/A in respect of Om Oil Trading Co. has not been prepared by him. It does not bears his signatures or stamp. He has nothing to do with the same. He also testified that receipt dated 05-10-1998, Ex. PW 16/C purportedly of Sh Dharampal Gupta, Engineer, Surveyor and Loss Assessor, placed at page 2 of the Marine Claim file Ex. PW 2/A has not been issued by him. It does not bear his signatures or stamp. He has nothing to do with the same. He further testified that the receipt dated 05-10-1998, Ex. PW 16/D purportedly of one Sh. Dharampal Gupta, placed at page 10 of the Marine Claim file Ex. PW 2/A has not been issued by him. It does not bear his signatures or stamp. He has nothing to do with the same. He also stated that four photographs PW 16/E-1 to Ex. PW 16/E-4, along with the negatives placed between page No.s 1 and 2 of the marine claim file Ex. PW2/A in respect of Om Oil Trading Co., neither bears his signatures nor his stamp and he had nothing to do with these photographs. He had never done any survey with regard to Om Oil Trading Company. He does not know any Om Oil Trading Company. During his cross-examination, he admitted that his statement was recorded by the Inspector who came from Jodhpur. He had given a copy of the survey report of the same number as in Ex. PW16/B to the Inspector who came from Jodhpur. His survey report pertained to the year 2001 and not to the year 1998. His report of 2001 was with respect to some other company. The payment for the survey conducted is received from the Insurance Company by cheque. He denied the suggestion that the claimant makes payment to the surveyor for the survey conducted by him. He prepares bills on the printed bill book. He had not handed over copies of the bills pertaining to the year 1998 and 1999 since he had not conducted the survey CBI Case No. 28/12 44 of 51 in question. In the year 1998 and 1999, he had conducted many surveys. He had not handed over the bills pertaining to the surveys conducted by him in the year 1998 and 1999. He cannot say as to who pay the fees in case of marine claim cases since he had not done surveys in marine claim cases. He had done surveys with regard to the engineering aspect when during transshipment, any damage occurs to the goods. In such a case also, the payment of the fees is made by the insurance company.
13.23 The testimonies of the above two witnesses have gone unrebutted and unimpeached. There is no reason to disbelieve them. To prove that Rai Singh Nagar Branch of NIC has not received any letter from M/s Gupta traders or they had not deputed any surveyor or written any letter, Ex PW 4/K to DO-XIII, New Delhi, the purported author of the said documents are the best witnesses. As per section 59 of the IEA, contents of a document are required to be proved by the document itself. However, to prove that a document is forged, the evidence of the purported author of the document is the best evidence. The absence of entry in the dispatch register, claim intimation register or surveyor appointment register could have been only corroborative in nature. It is therefore considered that Rai Singh Nagar Branch of NIC did not receive letter dated 29-09-1998, Mark K-1, the same is forged, no surveyor was appointed by them in the present claim, the survey report dt. 5-10-1998 Ex. PW16/B is forged and no letter, dt. 6-10-1998, Ex. PW4/K, was written by them to Do-XIII, NIC, New Delhi and the same is forged. 13.24 In view of the fact that no claim intimation was received by Branch office, Rai Singh Nagar of NIC, no surveyor was appointed by them and they had not sent the letter dated 6-10-2008 Ex. PW4/K, Om Oil Trading Company did not exist at its given address, and M/s Gupta Traders and M/s CBI Case No. 28/12 45 of 51 Singh Road Lines also apparently did not exist at their given addresses, it can be safely concluded that no consignment, as covered under the policy, was sent by Om Oil Trading Company to M/s Gupta Traders. Consequently, there was no loss of consignment. Ergo, the claim was fraudulently obtained on the basis of forged documents.
13.25 During arguments, Ld. Counsel for accused no 4 Ramesh Khaneja submitted that the verification report dated 17-10-1998 Ex. PW4/G was signed by one Ramesh Sharma and not by the said accused and thus he was not liable for the same. However, in his statement under section 313 Cr.P.C., accused no.4 Ramesh Khaneja stated that whatever work was assigned to him as recovery agent by National Insurance Company was properly executed by him. The prescribed fee was paid to him. He had no other role in this case. No evidence has been led by the prosecution as to who has signed the report dt. 17-10-1998. No opinion has been expressed by CFSL about the authorship of the signature on the said report. DW4 M.L. Mathur during his cross examination has stated that Globe Claim Recovery Consultants has submitted report, Ex. PW4/G and raised the bill, Ex. PW4/D. The payment of Rs 4180/- was made to Globe Claim Recovery Consultants by the order of Sh Yash Pal Babbar. From the above, it is clear that report dt. 17-10-1998 was submitted by Globe Claims Recovery Consultants. 13.26 In its verification report dt 17-10-1998, Ex. PW4/G, Globe Claims Recovery Consultants stated about their representative going to the office of Om Oil Trading Company, meeting its proprietor, Sh Om Prakash, going to the carrier along with proprietor of the insured and meeting their Manager Mr. Gupta. It is concluded that the claimants had suffered a loss of 1775 litres of industrial oil. Once it has been proved that no consignment, for CBI Case No. 28/12 46 of 51 which the insurance was taken, was sent by Om Oil Trading Co. to M/s Gupta Traders, Hanumangarh, the Verification Report dated 17-10-1998 submitted by accused no. 4 Ramesh Khaneja, is by necessary implication, false. Consequently, it can also be safely inferred that no recovery was made by accused no.4 Ramesh Khaneja from the purported transporter. Thus, accused no 4 Ramesh Khaneja was not entitled to any investigation fee or recovery fee and he has raised false bills.
13.27 It is pertinent to note that verification report dt. 17-10-1998 has been submitted by accused No. 4 Ramesh Khaneja, though not signed in his name. Since, it has not been proved that accused No. 4 Ramesh Khaneja has signed the verification report in the name of Ramesh Sharma, he cannot be said to have committed forgery. However, the said document has been used by accused No. 4 Ramesh Khaneja. As per accused No.4 Ramesh Khaneja himself, no Ramesh Sharma had any connection with Globe Claim Recovery Consultants. Thus, the said document has been made with the intention of causing it to be believed that such document was made by some Ramesh Sharma, though no such person existed, with the intention to commit fraud. Therefore, the document itself is a forged document, which had been used by accused No. 4 Ramesh Khaneja, fraudulently or dishonestly, as genuine, knowing that the same was forged. From the circumstances brought on recrod, it is clear that accused No. 4 Ramesh Khaneja would not have submitted false verification report dt. 17-10-1998, Ex. PW 4/G, unless he has conspired with accused No. 3 Arvind Khanna.
13.28 Ld P.P has argued that accused No.3 Arvind Khanna could not have cheated NIC by obtaining claim amount based on forged documents without connivance of officers of DO-XIII, NIC, i.e accused No.1 Yash Pal CBI Case No. 28/12 47 of 51 Babbar and accused No. 2 Moti Lal Mathur. Ld defence counsels submitted that the said accused persons had no knowledge of any forged documents. It is considered that there is no cogent evidence against accused No. 1 Yash Pal Babbar and accused No. 2 Moti Lal Mathur to show their complicity in the matter. As earlier held, prosecution cannot base its case only on the ground that documents in the claim file were not complete, as no sanctity of preservation of record has been maintained. In this regard, reference can be made to judgment, dt. 28-5-2013 of the Hon'ble High Court in Anil Maheshwari Vs. CBI (Supra). From the evidence brought on record by the prosecution through various officers/officials of NIC, it is clear that in case of any marine claim, the survey regarding damage to the consignment, tracing the consignment and verification of documents was being done by empanelled surveyors/tracers/verifiers and the officers of the insurance company were relying upon their reports to process and sanction the claim. PW 2 Shri A.K. Seth, during his cross examination on behalf of accused No. 2, Moti Lal Mathur stated that they had not specifically pointed out in Ex. PW1/A that Moti Lal Mathur or Yash Pal Babbar committed any specific irregularity or dereliction of duty. PW4 Sh Vinod Kumar during his cross examination on behalf of accused No. 1 Y.P. Babbar stated that he could not say whether there was any irregularity or illegality in the process note Ex. PW4/A and Ex. PW4/B. He admitted that accused Y.P. Babbar has done the job in his routine work on the basis of the process note. From the aforesaid, it is considered that the prosecution has not been able to lead any evidence to show that accused No.1 Yash Pal Babbar or accused No. 2 Moti Lal Mathur were party to conspiracy to cheat NIC.
14.1 The argument of Sh Umesh Sinha ld counsel for accused No.1
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Yash Pal Babbar that there has been a delay in registration of FIR does not hold any water. The case is of cheating and forgery. Unlike offences involving use of criminal force, offences involving cheating and forgery etc may not be detected immediately on commission. Generally, it is only after scrutiny of documents and enquiry that such offences are detected. Ld counsel has not explained as to how there was any undue delay in registration of FIR or how it was fatal to the case? He has also not shown any law which, in the facts of this case, would bar filing of more than one charge sheets in one FIR or would vitiate trial on the ground that FIR has been registered without conducting preliminary enquiry. Thus, his contention in this regard is also not tenable. Conclusions 15.1 In view of the aforesaid discussion it is considered that the prosecution has been able to prove beyond a reasonable doubt that:-
(a) Accused No. 3 Arvind Khanna and accused No. 4 Ramesh Khaneja entered into an agreement to cheat NIC DO-XIII, New Delhi by fraudulently inducing it to sanction insurance claim in the name of M/s Om Oil Trading Company, New Delhi under the proprietorship of accused No. 3 Arvind Khanna, to the extent of Rs 2,53,871/-, by using as genuine forged documents,
(b) Accused No. 3 Arvind Khanna deceived and dishonestly induced NIC, DO-XIII, New Delhi to sanction insurance claim of Rs 2,53,871/- on the basis of forged documents i.e claim bill dt. 06-10-98, claim form, claim intimation letter, dt. 29-09-98, Mark K-1, survey report, dt. 05-10-98 Ex. PW16/B, survey fee receipts, dt. 05-10-98 and letter dt. 06-10-98, Ex.PW4/K, of DO, NIC, Rai Singh Nagar and he received the cheque of claim amount which was credited in account No. 1495 of Om Oil Trading Company, of which he was the CBI Case No. 28/12 49 of 51 proprietor, and he also used the aforesaid documents as genuine knowing or having reason to believe the same to be forged, and (c ) Accused No. 4 Ramesh Khaneja, fraudulently and dishonestly, used forged document i.e verification report dt. 17-10-1998 as genuine for inducing NIC, DO-XIII, New Delhi to sanction insurance claim Rs 2,53,871/- in favour of Om Oil Trading Company knowing the same to be forged 15.2. However, the prosecution has not been able to prove that :-
(a) Accused No. 1 Yash Pal Babbar or accused No.1 Moti Lal Mathur entered into a criminal conspiracy with accused No. 3 Arvind Khanna and accused No. 4 Ramesh Khaneja or that they committed any criminal misconduct as defined in section 13 (1) (d) of the PC Act.
(b) Accused No. 4 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. 3 Arvind Khanna and accused No. 4 Ramesh Khaneja are guilty for commission of offence punishable under section 120B r/w section 420/471 IPC and they are convicted accordingly.
(b) Accused No. 3 Arvind Khanna is also guilty for commission of offences punishable (i) under section 420 IPC and (ii) under section 471 r/w section 468 IPC, and he is convicted accordingly.
(c ) Accused No. 4 Ramesh Khaneja is also guilty for commission of offence punishable under section 471 IPC and he is convicted accordingly. (d ) Accused No. 1 Yashpal Babbar is acquitted of the charges; (i) under section 120B r/w section 420/467/468/471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988 and (ii) under section 13 (2) r/w section 13 (1) CBI Case No. 28/12 50 of 51
(d) of the PC Act, 1988.
(e) Accused No. 2 Moti Lal Mathur is acquitted of the charges; (i) under section 120 B r/w sections 420/467/468/471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988, and (ii) under section 13 (2) r/w section 13 (1)
(d) of the PC Act, 1988.
(f) Accused No. 4 Ramesh Khaneja is acquitted of the charge under section 468 IPC.
16. Let the convicts be heard on the point of sentence on 03-01-2014. Announced in the Open Court today on 20th Day of December, 2013.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi (ra/pa)
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