Delhi District Court
Officer Nic 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. 31/12
RC No. 2(E)/2001/EOW-I/DLI
In re:
Central Bureau of Investigation
Vs.
1. Moti Lal Mathur,
S/o Shri B.L. Mathur,
R/o Pocket A-10/74-A
Kalkaji Ext.
New Delhi-19.
2. Yash Pal Babbar,
S/o Pishori Lal Babbar
R/o C-113, Sarita Vihar,
New Delhi-76
3. Ashok Kumar
S/o Shri Madan Lal,
R/o C-4, Sushant Apartments,
Sushant Lok,
Gurgaon, Haryana.
4. Ravinder Sharma
S/o Late Sh. R.C. Sharma
R/o NIL-2AB, 2nd Floor,
Malviya Nagar,
New Delhi - 17
CBI Case No. 31/12 1 of 47
5. Sh. Ramesh Khaneja,
S/o Sh. Raj Gopal
R/o. A-62/63, Flat No. 112,
Second Floor, 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
Date on which Judgment was delivered : 20-12-2013
JUDGMENT
Facts 1.1 This case was registered on 24-1-2001 on complaint dt. 29-9-2000 of Shri K.B. Mahapatra, CVO, National Insurance Company ltd. (hereinafter referred to as NIC), Calcutta alleging that, during the year 1998, accused No. 2, Yash Pal Babbar, the then Asstt. Manager and accused No. 1, Moti Lal Mathur, the then Administrative Officer, both of NIC, Divisional Office (hereinafter referrred to as DO)-XIII, New Delhi entered into a criminal conspiracy with private persons/surveyors/tracers namely accused No. 3, Ashok Kumar Kochhar, Prop. M/s Kochhar Trading Co. I-I/123, Budh Vihar, Delhi-41, accused No. 4, Ravindra Sharma, Surveyor and accused No. 5, Ramesh Khaneja, Globe Claims Recovery consultants, A-390, Chokhandi, Tilak Nagar, New Delhi-18 and obtained a marine claim of Rs. 2,50,757/- in favour of M/s Kochhar Trading Co., 1-1/23, Budh Vihar, Delhi 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 CBI Case No. 31/12 2 of 47 examined from the CFSL.
1.3.1 Investigation revealed as under:-
1.3.2 Accused No. 3, Ashok Kumar Kochhar. Prop./Owner of M/s Kochhar Trading Co., Delhi (Consignee) took a specific marine policy no.
4500297 on 31-8-98 for dispatch of adipic acid worth Rs. 4,55,000/- by M/s Quality Chemical Industries, 315-A, Sec-17, Vashi, Navi Mumbai (Consignor) to M/s Kochhar Trading Co., Delhi-41. The consignment of adipic acid was purportedly dispatched vide goods receipt No. 987 dt. 1-9-98 of M/s Baba Nanak Associates, E-3/7, Pirbaba Road, Shiv Ram Park Extn., N. Delhi-41 to the consignee.
1.3.3 Accused No. 3, Ashok Kumar intimated the receipt of adipic acid in wet/ damaged condition vide his letter dt. 8-9-98 to NIC, DO-XIII, Palika Bhawan, R.K. Puram, New Delhi. Accused No. 4, Ravindra Sharma, Prop. of M/s Ravinder Sharma & Company, 12, Satya Niketan, Opp. S.V. College, New Delhi-21 was deputed to survey/assess the loss. The surveyor submitted his report on 17-09-98. A claim file No. 45/98-98/27 of M/s Kochhar Trading Co. was opened in NIC, DO-XIII, New Delhi. The claim was processed by Shri Vinod Kumar, Sr. Asstt., and recommended by accused No. 1, Moti Lal Mathur, for Rs. 2,50,757/-. It was sanctioned by accused No. 2, Yash Pal Babbar on 6-10-98. The claim amount of Rs 2,50,757/- was paid to accused No. 3, Ashok Kumar Kochhar vide cheque No. 244854 dt. 7-10-98 of Indian Overseas Bank, R.K. Puram, New Delhi. The proceeds of the claim cheque were credited into Current Account No. 4411 of accused No. 3, Ashok Kumar in PNB, Dev Nagar, New Delhi.
1.3.4 The consignor has denied having sent any consignment to the insured. The consignee did not exist at the given address. The address of the CBI Case No. 31/12 3 of 47 transporter belongs to accused No. 3, Ashok Kumar Kochhar. M/s Baba Nanak Associates was not existing at the given address during the relevant period. The claim was processed on the basis of fake and bogus documents namely certificate of damage dt. 8-9-98 of transporter, invoice no. 4754 dt. 1-9-98 and letter dt. 6-10-98 of M/s Quality Chemical Industries and Goods Receipt No. 987 dt. 1-9-98.
1.3.5 Accused No. 5, Ramesh Khaneja of Globe Claims Recovery Consultants was appointed tracer/investigator by accused No. 1, Shri Moti Lal Mathur. Globe Claims Recovery consultants submitted their report dt. 6-10-98 to the Divisional Manager, NIC. DO-XIII, New Delhi which was received by accused No. 1, Moti Lal Mathur. An amount of Rs. 4,275/- was paid to Globe Claims Recovery Consultants for investigation vide cheque No. 244929 and Disbursement Voucher No. 2289 of NIC.
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 aforesaid accused persons.
1.5 It may be mentioned that as per the documents/letter heads of the insured/consignee Kochhar Trading Company, as available in the claim file, the name of the said consignee has been mentioned as "Kochhar Trading Company". Accused No.3 Ashok Kumar Kochhar is alleged to be the proprietor of the same. However, the parties as well as the witnesses have at many places/times referred to the same as "M/s Kochhar Trading Company". There is no dispute that any reference to "M/s Kochhar Trading Company"
means "Kochhar Trading Company". Thus, the consignee is being hereinafter CBI Case No. 31/12 4 of 47 referred to as "Kochhar Trading Company". Same is the case with respect to "Quality Chemicals Industries", "Baba Nanak Associates", "Ravindra Sharma and Company" and "Globe Claims Recovery Consultants", which have been, at many places/times, referred to by the parties and the witnesses as "M/s Quality Chemicals Industries", " M/s Baba Nanak Associates", " M/s Ravindra Sharma and Company" and "M/s Globe Claims Recovery Consultants".
2.1 Copies of the documents were supplied to the accused persons in terms of Section 207 Cr.P.C.
Charges 3.1 Vide order dt. 17-02-2004 of my Ld. Predecessor, charges were framed against the accused persons as under :-
a) against all the accused persons, u/s 120-B r/w sections 420/467/468/471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act,
b) against accused No. 1, Moti Lal Mathur u/s 13 (2) r/w 13 (1) (d) of the PC Act,
c) against accused No. 2, Yash Pal Babbar u/s 13 (2) r/w 13 (1) (d) of the PC Act,
d) against accused No. 3, Ashok Kumar u/s 420 IPC and u/s 471 r/w section 467 and 468 IPC,
e) against accused No. 4, Ravinder Sharma u/s 468 IPC,
f) against accused No. 5, Ramesh Khaneja u/s 468 IPC.
The accused persons pleaded not guilty to the charges and claimed trial. Prosecution Evidence 4.1 In order to prove its case, prosecution has examined 21 witnesses. PW 1 Sh. K.B. Mahapatra, Chief Vigilance Officer, NIC, on whose instructions the investigation was carried out has filed the complaint, Ex CBI Case No. 31/12 5 of 47 PW1/B to the CBI. PW 2 Sh. Akhilesh Kumar Seth, PW 3 Sh. Anil Kumar Tiwari and PW 12 Sh. Amrit Lal Gambhir, all officers of Vigilance Department of NIC, had conducted the investigation during which they had seized the file, including the claim file of Kochhar Trading Company, Ex. PW2/A and given their report Ex. PW1/A. 4.2 PW 6 Sh. P.K. Aggarwal, Administrative Officer, Vigilance Department, NIC has handed over 9 marine claim files to the CBI vide seizure memo dt. 8-2-2001, Ex. PW6/A and certain other documents vide letter dt. 16-9-2002, Ex. PW6/B. PW 8 Sh. C.D. Ram Assistant, NIC, DO-XIII, has handed over disbursement vouchers to the IO vide seizure memo dt. 11-12-2002, Ex. PW8/A. 4.3 PW 4 Sh. Vinod Kumar, Senior Assistant, NIC, DO-XIII, and PW 10 Sh. Anupam Rai Gupta, Senior Assistant, NIC, DO-XIII, have testified about the claim file, Ex. PW2/A and identified the signatures/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 inside front cover and inside back cover of the claim file, disbursement voucher dt. 7-10-1998, Ex. PW4/C for payment of claim amount to Kochhar Trading Company, Disbursement Voucher dt. 9-10-1998, Ex. PW4/D for payment to Globe Claims Recovery Consultants, bill dt. 6-10-1998 Ex. PW4/E of Globe Claims Recovery Consultants, Verification Report dt. 6-10-1998, Ex. PW4/F of Globe Claim Recovery Consultants, Survey report dt. 28-9-1998, Ex. PW4/G of Ravinder Sharma and Company, Insurance Policy Ex. PW4/H and claim cheque dt. 7-10-1998, Ex. PW4/J. 4.4 PW 5 Ms. Vandana, Divisional Manager, DO-XIII and PW 7 Sh. R.C. Sood, Administrative Officer have deposed about the documentation and CBI Case No. 31/12 6 of 47 procedure for settlement of marine claim and deficiencies in the claim file, Ex. PW2/A. 4.5 PW 9 Sh. R. Vaidyanathan Chief Manager, Indian Overseas Bank, where NIC was having account numbers 1194 and 1197, has deposed about handing over of the cheques vide letter dt. 4-5-2002, Ex. PW9/A, statement of current account No. 1194 of NIC, Ex. PW9/B and cheque No. 244854 dt. 17-10-1998, Ex. PW4/J. PW 13 Sh. K.S. Chhabra, Branch Manager, Chaukhandi Branch, SBI, testified about handing over the documents in respect of current account No. 972 of Globe Claims Recovery Consulants i.e. account opening form, Ex.PW13/A of current account No. 972, account opening form in respect of Savings Account No. 8338 of the introducer Sh Ashok Kumar, Ex. PW13/B, ledger sheets Ex. PW13/C and Ex. PW13/D and letter dt. 10-4-1997, Ex. PW13/E of Globe Claims Recovery Consultants. PW 14 Sh. Lajpat Rai Sehgal, officer of Punjab National Bank, Dev Nagar Branch, Karol Bagh, New Delhi, where current account No. 4411 in the name of Kochhar Trading Company A-105, Nangloi was being maintained, has deposed about the account opening form of current account No. 4411, Mark PW14/1, specimen signature card Mark, PW14/2, letter dt. 30-1-2002, Ex. PW14/A, regarding seizure of account opening form by CBI, statement of account of current account No. 4411, Ex. PW14/A-1 for the period 1-4-1998 to 31-3-1999 and cheque No. 244854, dt. 07-10-1998, Ex. PW14/J. 4.6 PW 19 Sh. Mukesh Shantilal Shah is the partner of Quality Chemical Industries, who deposed that no consignment of adipic acid was sent to Kochhar Trading Company and that credit memo No. 4754 dt. 1-9-1998 Ex. PW19/D was not of their company. He has also deposed about the receipt memo dt. 1-10-2002, Ex. PW19/A, vide which documents were CBI Case No. 31/12 7 of 47 handed over to CBI, letter dt. 5-4-1999, Ex. PW3/A written to Administrative Officer, Vigilance Department, NIC, blank delivery challan, Ex. PW19/B and blank invoice, Ex. PW19/C. 4.7 PW 20 Ms. Jyotsna Vilas Rasam has conducted the investigation regarding consignment purportedly sent by Quality Chemical Industries, at Mumbai. She has, inter-alia, deposed regarding letter dt. 25-102002, Ex. PW20/A of Sh Virender Singh, DIG of police, CBI, Mumbai written to Sh Alok Mittal SP, CBI, New Delhi. PW 21 Sh. R.P. Kaushal is the main IO. Statement of accused persons u/s 313 Cr.P.C.
5.1 Statements of all the accused persons were recorded u/s 313 Cr. P.C wherein they have generally denied the incriminating evidence and stated that they have been falsely implicated in this case. 5.2. Accused No.1 Moti Lal Mathur has also stated that he has not done anything wrong. He was competent to process the claim like he had processed numerous other marine claims with the assistance/support of junior officers like Mr. Anupam Rai Gupta and Sr. officers like Mr. J.N. Vats. Even though, the aforesaid two officers, have worked like him in some claims, it is only he who has been named in the FIR and charge-sheet. 5.3. Accused No. 2 Yash Pal Babbar further stated that he has been falsely implicated 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.2) was posted at DO-XIII as Divisional Manager. He further stated that the claim was processed by his subordinates and put up to him for sanction. He passed them with due care CBI Case No. 31/12 8 of 47 and attention and in good faith and had no cause to believe that any document in the claim file was false, forged or fabricated. He had followed the prescribed procedure.
5.4 Accused No. 3 Ashok Kumar Kochhar further stated that he is an ordinary trader and had purchased material which was insured whilst in transit from Bombay to Delhi. He had suffered loss due to transit hazard and had lodged his claim with the NIC. The payment received by him was legitimate and proper claim to which he was legally entitled. He has not committed any offence and no part of his transaction was fake or forged. 5.5 Accused No. 4, Ravinder Sharma further stated that he was appointed as a surveyor and was informed that the goods were damaged during transit. He accordingly went to the godown of the consignee, inspected the material, conducted survey and took photographs of the damaged goods. He submitted the survey report alongwith the photographs. They got the damaged material tested at Shri Ganesh Test House. His role was only to the extent of assessment of loss of the insured goods and he had no other role with regard to verification of documents.
5.6 Accused No. 5, Ramesh Khaneja also stated that the work assigned to him by NIC was done by him according to the documents supplied. He had submitted his bill to NIC and payment thereof was made to him. He had no other role in the present case.
Defence Evidence 6.1 Accused No.1 Moti Lal Mathur and accused No.2 Yash Pal Babbar have examined 2 witnesses in their defence besides themselves appearing as witnesses u/s 315 Cr. PC r/w Section 21 of the PC Act.
6.2 DW-1 Shri P. Krishna Kumar, Assistant Manager, Regional CBI Case No. 31/12 9 of 47
Officer NIC, has deposed about the destruction of audit reports, statutory reports, confidential reports of accused No.1 Moti Lal Mathur and accused No. 2 Yash Pal Babbar and Cheque Dishonour Register, for the relevant period in terms of company's circular dt. 23-4-2013, Ex. DW1/B. He has also deposed about the applicability of Claims Procedural Manual, Ex. DW1/C before new guidelines were issued vide Claims Facilitation, Ex. DW1/A. 6.3 DW-2 Shri Dinesh Gupta, Assistant Manager DO-XIII, NIC has testified about the destruction of records i.e Claim Intimation Register and Underwriting Docket of Policies in terms of circular dt. 23-4-2013, Ex. DW1/B. 6.4 DW-3 Shri Moti Lal Mathur, has deposed, inter-alia, about the procedure being followed for settlement of marine claims. He has also testified that 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, details of packing, if any, are given in the proposal form and any adverse remark given by the Surveyor or Verifier. He further stated that as per the policy, the claim was to be paid within three days of the completion of the required documents.
6.5 DW-4 Shri Yash Pal Babbar deposed, inter-alia, about the procedure for sanction of marine claims. He also stated that he had sanctioned the claim within his financial powers by following all rules and regulations of NIC, by relying upon the report of the surveyors/recovery agents/tracer for verification and documents submitted by the claimant in utmost good faith, on the recommendations of his subordinate. He has further stated that it was not his duty to verify the documents or the consignment of CBI Case No. 31/12 10 of 47 goods and that he has never met accused Ashok Kumar or his agent/representative in his office during the processing of the present claim. Arguments on behalf of CBI 7.1 Sh Manoj Shukla, Ld. P.P. for CBI has argued that the prosecution has been able to prove its case beyond a reasonable doubt. PW 19, Sh. Mukesh Shantilal Shah and PW 20, Mrs. Jyotsna Vilas Rasam have proved that no consignment of adipic acid was sent by Quality Chemicals Industries to Kochhar Trading Company. PW 15, Sh. S.N. Vats has proved non existence of consignee. PW 11, Sh. Mohan Mehto and PW 18, Sh. Gyan Chand Gupta have proved the non existence of transporter. PW 9, Sh. R. Vaidynathaan, PW13, Sh. K.S. Chhabra and PW 14, Sh. Lajpat Rai Sehgal who are bank officers/officials, have proved the payment by NIC to the claimant and to Globe Claims Recovery Consultants. PW 4, Sh. Vinod Kumar and PW 10, Sh. Anupam Rai Gupta have proved the handwriting/signatures of accused No.1 Moti Lal Mathur and accused No.2 Yash Pal Babbar in the claim file. PW5, Ms. Vandana and PW7, Sh. R.C. Sood have explained the procedure in the case of Marine Claims. PW 6, Sh. P.K. Aggarwal and PW 8, Sh. C.D. Ram have proved the handing over of documents to the CBI. PW 2, Sh. Akhilesh Kumar Seth, PW 3, Sh. Anil Kumar Tiwari and PW 12, Sh. Amrit Lal Gambhir have conducted the vigilance inquiry and proved their report. PW 1, Sh. Kruti Bas Mahapatra has proved the complaint made by him to CBI and PW 16, Sh. Jyoti Kumar, PW 7, Sh. R.C. Sood and PW 21, Sh. R.P. Kaushal have proved the investigation made in this case. He further submitted that besides the direct evidence, circumstantial evidence brought on record prove that all the accused persons have conspired to cheat NIC. Arguments on behalf of Accused No. 1, Moti Lal Mathur.
CBI Case No. 31/12 11 of 47 8.1 Sh. Shaju Francis, Ld. counsel for accused No. 1, Moti Lal
Mathur has argued that the said accused has processed and recommended the claim on the basis of surveyor's report, verification report and documents submitted by the claimant, in accordance with the Claims Procedural Manual. Field verification was not a part of his duty. Prosecution has not produced documents of Quality Chemicals i.e. their books of account, stock register, purchase register, sale register, specimen of invoice, letterhead, etc. to substantiate the oral testimony of PW 19 Sh. Mukesh S. Shah to the effect that no consignment was sent by them to Kochhar Trading Company. He further argues that the evidence of various witnesses regarding non existence of the consignee and the transporter is vague and having contradictions and thus, cannot be relied upon especially in view of the fact that no verification was got done from the municipal authorities, telephone department and sales tax department regarding their existence. It is also argued that accused No. 1, Moti Lal Mathur was duty bound to process the claim and had no reason to doubt the genuineness of the documents verified by the empaneled verifier. Arguments on behalf of Accused No. 2, Yash Pal Babbar. 8.2 Sh. Umesh Sinha, Ld. counsel for accused No. 2, Yash Pal Babbar has argued that there has been a delay in registration of FIR. FIR could not have been registered without conducting preliminary enquiry and 9 charge sheets could not have filed out of one FIR. He further argues that presumption u/s 20 of the PC Act is not applicable in the present case and prosecution is thus, required to prove its case beyond a reasonable doubt. He contends that prosecution cannot build its case on the absence of documents in the claim file since no seizure memo was prepared when the files were first seized from DO-XIII and the same were also not sealed. He also argues that CBI Case No. 31/12 12 of 47 accused No. 2, Yash Pal Babbar has sanctioned the claims on the basis of reports of the surveyor and the verifier and on the recommendation of his subordinate. Field verification was not a part of his duty. Prosecution has not produced any document i.e. books of accounts, tax records etc. of PW 19 Sh. Mukesh. S. Shah and have relied upon his oral testimony only which is not admissible. No investigation was conducted with regard to truck, number of which is available on record and the damaged goods, photographs of which are available on record. There is also no investigation with regard to Ganesh Test House, from which sample of the damaged goods were got tested. No verification was got done from Mumbai Office of NIC regarding the consignment. There is no trail of money from the account of the claimant, accused No. 3, Ashok Kumar to link the same with any other accused person. No documentary evidence from the civic authorities, telephone department, sales tax department etc. has been produced regarding existence of the transporter and the consignee. Ld. counsel has relied upon Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif, AIR 1968 (SC) 1413, J. Ramulu Vs. State of A.P., AIR 2008 SC 1505, P.K. Narayanan Vs. State of Kerala, 1995 (1) SCC 142, K.R. Purushothaman Vs. State of Kerala, 2005 Cri. L. J. 4648, Rita Handa Vs. CBI, 152 (2008) DLT 428, Anil Kumar Bose Vs. State of Bihar, AIR 1974 SC 1560, State (G.N.C.T) of Delhi Vs. Saqib Rahman @ Mansoori and Ors, 2012 VII AD (Delhi) 12, Ashok Narang Vs. State, 2012 II AD (Delhi) 481, Surendra Singh Vs. State of UP, 2010 Cri. L. J. 2258, Shranappa Mutyappa Halke Vs. State of Maharastra, AIR 1964 SC 1357, Surajit Sarkar Vs. State of West Bengal, AIR 2013 SC 807, C.K. Jaffer Sharief Vs. State (Through CBI), AIR 2013 SC 48, Subramanaian Swamy Vs. A. Raja, AIR 2012 SC 3336, S.V.L. Murthy Vs. State (Rep. By CBI CBI Case No. 31/12 13 of 47 Hyderabad) 2009 Laws (SC) 5-57, Sreedharan A. Vs. Dy. S.P. of Police, 2011 Laws (Ker) 4-117, C. Chenga Reddy and others Vs. State of Andhra Pradesh, AIR 1996 SC 3390, Sayeed MRO office Leeza Mandal Mahaboob Nagar Vs. State of A.P. through ACB, 2012 (2) ALD (Cri) 469 and V. Dilip Kumar Vs. State rep. by Dy. S.P. ACB/CBI Chennai, MANU/TN/0503/2012. He finally submits that prosecution has failed to prove its case against accused No. 2, Y.P. Babbar.
Arguments on behalf of Accused No. 3, Ashok Kumar Kochhar. 8.3 Sh. R.K. Kohli, Ld. counsel for accused No. 3 Ashok Kumar Kochhar argued that in the complaint dt. 29-09-2000 and in the charges framed against the accused, it is not alleged that the consignee Kochhar Trading Co. did not exist. He argues that Goods Receipt, Ex.PW2/A, which is a statutory document, contains telephone No. of the transporter, truck No. i.e. HR 33 - 7646, name of driver i.e. Harbhajan Singh and municipal address of consignor and consignee. However, no investigation has been done with regard to the above details. So far as consignee is concerned, it is not incumbent upon the accused to display his signboard. The only basis of want of knowledge of PW11, Sh. Mohan Mehto regarding the consignee, that he has not delivered any dak, is not sufficient to come to a conclusion that the consignee did not exit. Further, the owner of the premises in question Sh. Praveen Kochhar and Sh. Sonu Sharma, examined by Sh. B.S. Bisht have not been examined in the court. There is lack of consistency in the deposition of PW18 Sh Gyan Chand Gupta and in any case, neighbours may not always be aware of all the occupants in their locality. The best evidence in this regard from the MCD, Sub Registrar Office and the MTNL has not been brought before the court.
CBI Case No. 31/12 14 of 47
8.4 He further argued that the testimony of PW19 Sh Mukesh Shantilal
Shah cannot be relied upon since the author of letter dt. 05-04-99, Ex.PW3/A i.e. Sh. Harshad Shah has not been examined, the books of accounts of Quality Chemical Industries have not been brought on record and the documents mentioned at Sl. No. (a) to (i) of Ex.PW19/A have been withheld by the prosecution, the format of credit memo seized by CBI has not been produced and PW20 Ms Jyotsana Vilas Rasam has not seized any list of dealers or distributors through whom Quality Chemicals used to supply their goods. It is further argued that in the charge sheet and the complaint, it is not stated that the consignment was not there at consignee's end. Despite the details of truck and driver given in the GR, no investigation was carried out. It is also not stated in the complaint that the survey report was false. Prosecution has not proved that there was no material, no survey and no test. No investigation has been conducted with regard to the damaged material which was got tested by the surveyor from Ganesh Test House. Therefore, prosecution has not been able to prove that there was no consignment or loss. Ld. Counsel further submits that the statement of account, Ex.PW14/A-1 of accused No. 3, Ashok Kochhar shows that the consignee did exist and PW3, Sh. Anil Kumar Tiwari also stated that he had gone to the office of consignor and consignee. Ld counsel also argued that there is no direct or circumstantial evidence to prove the conspiracy between the said accused persons. Ld. Counsel further argued that in offences of conspiracy, though direct evidence may not be available, prosecution is still required to prove its case through circumstantial evidence. Conspiracy cannot be assumed and it cannot be based on conjectures. He argues that in the present case, there is no evidence regarding the presence of accused persons together or any CBI Case No. 31/12 15 of 47 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 after it was credited in the account of accused No.3, Ashok Kumar. Prosecution has also not been able to show as to who was the Chief propounder of the conspiracy. In this regard he has relied upon Subramaniam 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 and CBI/SIT Vs. Nalini and 25 others, decided on 11-05-1999, He thus, submits that prosecution has failed to prove its case against accused No. 3 Ashok Kumar Kochhar.
Arguments on behalf of Accused No. 4, Ravinder Sharma. 8.5 Sh. Rakesh Malhotra, counsel for accused No. 4, Ravinder Sharma has argued that the said accused has conducted the survey as asked by NIC. No action was recommended against him in the vigilance report or by PW 1, Sh. Kruti Bas Mahapatra. In the charge sheet, it is not stated that the survey report was forged. In any case, no charge of forgery is made against him since accused No. 4 Ravinder Sharma has not made the survey report claiming to be somebody else or being authorized by somebody else. The CBI Case No. 31/12 16 of 47 survey report gives details regarding the place of survey etc. The report is corroborated by photographs and lab report of Ganesh Test House. However, no investigation has been done with regard to the photographs and the lab test. Thus, there is no evidence to prove that goods in question were not existing. PW 2 Sh A.K. Seth has testified that after receipt of survey report, claim may or may not be passed. Thus, survey report was not sufficient to ensure payment of claim. He further argues that there is no evidence to show that any illegal money had passed to accused No. 4 Ravinder Sharma. Ld. counsel also argues that the evidence of PW11, Sh. Mohan Mehto cannot be relied upon since these days dak is sent through courier, all the businessmen may not put up signboards and no record from MCD has been produced regarding the occupancy of the premises in question. Ld. Counsel further argues that testimony of PW 19, Sh. Mukesh Shantilal Shah also cannot be relied upon since the documents like stationery, books of accounts etc. of consignor, Quality Chemicals have not been produced. Ld counsel has relied upon Lennart Schussler & Anr. Vs. Director of Enforcement & Anr., SCR 1970 (2) 760, Ajay Agarwal Vs. Union of India, SCR 1993 (3) 543, P.K. Narayanan Vs. State of Kerala, 1994 (4) SCALE 740, State of Maharashtra & Ors. Vs. Som Nath Thapa & Ors. , 1996 (4) SCC 659, Sanjiv Kumar Vs. State of H.P., AIR 1999 (SC) 782, Shreya Jha Vs. CBI, 2007 (3) JCC 2318, Yogesh Alias Sachin Jagdish Joshi Vs. State of Maharashtra, 2008 (10) SCC 394, Savita Alias Babbal Vs. State of Delhi, 2011 (3) JCC 1687, CBI Hyderabad Vs. K. Narayan Rao. 2012 CRI.L.J. 4610 (SC), Mohammed Ibrahim & Ors. Vs. State of Bihar, 2009 (8) SCC 751, Ganga Singh Vs. State of M.P., 2013 (7) SCC 278, Vadlakonda Lenin Vs. State of A.P., 2012 (12) SCC 260, K.R. Purushothaman Vs. State of Kerala, AIR 2006 SC 35, CBI Case No. 31/12 17 of 47 Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan, 2013 (6) SCALE, Hate Singh Vs. State of M.B. , AIR 1953 (SC) 468, Sunil Kumar Sharma Vs. State (CBI), 2007 (2) JCC 1315 and Anil Maheshwari Vs. CBI, 2013 (136) DRJ 249. He finallly submits, contends that prosecution has not been able to prove its case against accused No. 4 Ravinder Sarma.
Arguments on behalf of Accused No. 5, Ramesh Khaneja. 8.6 Sh. Bhola Singh, counsel for accused No. 5 Ramesh Khaneja has argued that the account of Globe Claims Recovery Consultants was introduced by one Ashok Kumar and not Ashok Kumar Kochhar and thus, he had no connection with the said accused. Though, he was appointed verifier and had submitted his report, the report, Ex.PW4/F is not the report submitted by him. The report, Ex.PW4/F has been signed by one Lalit Kumar and not by the said accused. There is no report of handwriting expert to the effect that the report, Ex.PW4/F has been signed by him. Therefore, there is no evidence whatsoever against the said accused.
8.7 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, Moti Lal Mathur, accused No. 2, Yash Pal Babbar, accused CBI Case No. 31/12 18 of 47 No. 3, Ashok Kumar, accused No. 4, Ravinder Sharma and accused No. 5, Ramesh Khaneja.
i. Whether during the year 1998, at New Delhi and other places, all the accused persons namely accused No. 1, Moti Lal Mathur, accused No. 2, Yash Pal Babbar, accused No. 3, Ashok Kumar, accused No. 4, Ravinder Sharma and accused No. 5, 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 Kochhar Trading Company, New Delhi under the proprietorship of accused No. 3, Ashok Kumar, to the extent of Rs.2,50,757/- 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, Moti Lal Mathur and accused No. 2, Yash Pal Babbar?
iii. If so, whether in pursuance of the said agreement, accused No. 3, Ashok Kumar, Proprietor of Kochhar Trading Company obtained marine policy No. 4500297 for dispatch of adipic acid from Quality Chemical Industries, Mumbai to Kochhar Trading Company, Delhi vide G R No. 987 of Baba Nanak Associates, New Delhi and accused No. 3, Ashok Kumar intimated to NIC, DO-XIII, New Delhi about receipt of adipic acid in wet damaged condition and submitted claim form and the amount of insurance claim was credited in his account No. 441 and accused No. 4, Ravinder Sharma submitted false survey report without surveying the spot/goods and accused No. 1,Moti Lal Mathur, Administrative Officer appointed Pramod Kumar Gupta for survey and recommended the insurance claim and accused No. 2, Yash Pal Babbar sanctioned the claim amount in favour of Kochhar Trading Company on the CBI Case No. 31/12 19 of 47 basis of the above mentioned false/bogus/forged documents and accused No. 5, Ramesh Khaneja of Globe Claims Recovery Consultant submitted false investigation/tracing report without tracing/investigating the case and claimed false recovery fee from NIC, DO-XIII ?
B. Charge u/s 13 (2) r/w section 13 (1) (d) of the PC Act against accused No. 1, Moti Lal Mathur.
(i) Whether during the year 1998, accused No. 1, 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. 1, Moti Lal Mathur obtained pecuniary advantage to the tune of Rs.2,50,757/- for accused No. 3, Ashok Kumar of Kochhar Trading Company, Delhi 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. 1, Moti Lal Mathur 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, Yash Pal Babbar.
(i) Whether during the year 1998, accused No. 2, 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. 2, Yash Pal Babbar obtained pecuniary advantage to the tune of Rs.2,50,757/- for accused No. 3, Ashok Kumar of Kochhar Trading Company, CBI Case No. 31/12 20 of 47 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. 2, Yash Pal Babbar did as above by use of illegal means and abuse of his official position?
D. Charge u/s 420 IPC against accused No. 3, Ashok Kumar Kochhar.
(i) Whether during the year 1998, at Delhi and other places, accused No. 3, Ashok Kumar Kochhar deceived NIC, DO-XIII, New Delhi?
(ii) If so, whether accused No. 3, Ashok Kumar Kochhar induced NIC, DO-XIII, New Delhi to sanction insurance claim of Rs.2,50,757/- in favour of Kochhar Trading Company on the basis of false/bogus/forged documents i.e. invoice, survey report, GR etc. ?
(iii) If so, whether accused No.3, Ashok Kumar Kochhar had induced NIC, DO -XIII, New Delhi as above dishonestly?
(iv) If so, whether accused No. 3, Ashok Kumar Kochhar received the cheque of claimed amount which was credited in account of Kochhar Trading Company of which, he was the Proprietor?
E. Charge u/s 471 r/w section 467 & 468 IPC against accused No. 3, Ashok Kumar.
(i) Whether during the year 1998, at Delhi and other places, accused No. 3, Ashok Kumar Kochhar 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.2,50,757/- in favour of Kochhar Trading Company, of which he was the Proprietor?
(ii) If so, whether he had used the aforesaid documents as genuine
CBI Case No. 31/12 21 of 47
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, Ravinder Sharma.
(i) Whether during the year 1998, at Delhi and other places, accused No. 4, Ravinder Sharma was appointed as surveyor in the claim of Kochhar Trading Company ?
(ii) If so, whether accused No. 4, Ravinder Sharma committed forgery by submitting a false survey report to NIC, DO-XIII, New Delhi without conducting the survey, on the basis of which claim amount of Rs.2,50,757/- was sanctioned in favour of Kochhar Trading Company ?
(iii) If so, whether accused No. 4, Ravinder Sharma intended that the aforesaid forged document i.e. bogus report shall be used for the purpose of cheating NIC?
G. Charge u/s 468 IPC against accused No. 5, Ramesh Khaneja.
(i) Whether during the year 1998 at Delhi and other places, accused No. 5, Ramesh Khaneja, being Proprietor of Globe Claim Recovery Consultant was appointed as Tracer/Investigator in the claim of Kochhar Trading Company ?
(ii) If so, whether accused No. 5, Ramesh Khaneja committed forgery by submitting a false tracing/investigation report to NIC, DO-XIII, New Delhi without investigating/tracing the matter and received recovery fee for which he was not entitled ?
(iii) If so, whether accused No. 5, Ramesh Khaneja intended that the aforesaid forged document i.e. false tracing/investigation report shall be used CBI Case No. 31/12 22 of 47 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 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 CBI Case No. 31/12 23 of 47 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) 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 CBI Case No. 31/12 24 of 47 (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 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 CBI Case No. 31/12 25 of 47 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 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 CBI Case No. 31/12 26 of 47 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:-
(a) Accused No.1 Moti Lal Mathur was a public servant i.e. Administrative Officer, NIC, DO-XIII, New Delhi,
(b) Accused No. 2 Yash Pal Babbar was a public servant i.e Assistant Manager, NIC. DO-XIII, New Delhi,
(c) Accused No. 3, Ashok Kumar obtained marine policy No. 4500297 dt.
31-08-98 for dispatch of adipic acid worth Rs.4,55,000/- from Quality Chemicals Industries, Mumbai to Kochhar Trading Co., Delhi,
(d) Accused No. 3, Ashok Kumar sent claim intimation vide his letter dt 08-09-98 to the NIC, DO-XIII, New Delhi,
(e) Accused No. 4, Ravinder Sharma was appointed as surveyor to assess the loss,
(f) Accused No. 4, Ravinder Sharma submitted his report dt. 17-09-98 to NIC, DO-XIII,
(g) Accused No. 5, Ramesh Khaneja was appointed investigator by accused No. 1, Moti Lal Mathur,
(h) Accused No. 5, Ramesh Khaneja submitted his report dt. 06-10-98 to CBI Case No. 31/12 27 of 47 DO-XIII, NIC,
(i) The claim was processed by Sh. Vinod, recommended by accused No. 1, Moti Lal Mathur and sanctioned by accused No. 2, Yash Pal Babbar for Rs. 2,50,757/-,
(j) The claim amount was paid to accused No. 3, Ashok Kumar vide cheque No. 244854 dt. 07-10-98 of Indian Overseas Bank, R.K. Puram, New Delhi and proceeds thereof were credited in current account No. 4411 of accused No. 3 Ashok Kumar in PNB, Dev Nagar, New Delhi,
(k) An amount of Rs.4,275/- was paid to Globe Claims Recovery Consultants vide cheque No. 244929 and disbursement voucher No. 2289 of NIC.
Facts in Dispute 12.1 However, the following facts are in dispute:-
(a) No consignment of adipic acid was sent by Quality Chemical Industries to Kochhar Trading Company and invoice/credit memo No. 4754, dt. 01-09-98, Ex.PW19/D of Quality Chemical Industries is forged,
(b) Baba Nanak Associates did not exist at its given address and their purported goods receipt No. 987, dt. 01-09-98 is forged ,
(c) Kochhar Trading Company did not exist at its given address,
(d) Accused No. 3 Ashok Kumar falsely intimated to DO-XIII vide his letter dt 08-09-98 that adipic acid sent by Quality Chemical Industries was received in wet condition,
(e) Accused No. 4, Ravinder Sharma submitted report, dt. 17-09-98, falsely stating, inter-alia, that they had visited the godown of Kochhar Trading Company and that there was a loss of 2050 kg of adipic acid, and
(f) Accused No. 5, Ramesh Khaneja submitted report, dt. 06-10-98 falsely CBI Case No. 31/12 28 of 47 stating about their visiting the consignee Kochhar Trading Company, meeting the concerned person, their representative going to the office of Baba Nanak Associates, Delhi, and opining that the documents submitted by claimant were in order and claim for 82 bags was maintainable.
Appreciation of Evidence.
13.1 The main fact in issue in this case is whether there was any loss of consignment of adipic acid purportedly sent by Quality Chemical Industries, Navi Mumbai, to Kochhar Trading Company, Delhi through Baba Nanak Associates, New Delhi as covered by the insurance policy. The essential part/components of the purported loss of consignment are existence of Quality Chemical Industries, Navi Mumbai, existence of Kochhar Trading Company, Delhi, existence of Baba Nanak Associates, New Delhi, sending of the consignment of adipic acid and loss/damage to the said consignment. If any of the above part/component of the transaction in question is disproved, it would, by necessary implication, follow that there was no loss of consignment and that the claim amount has been fraudulently obtained. 13.2 Prosecution has led evidence and Ld. PP has advanced argument to the effect that complete documents required for processing and settlement of claim are not available in the claim file which shows that the claim has been fraudulently obtained. Ld. Defence counsels contend that the complete chain of handing over of record has not been proved and thus absence of any document in the claim file is of no relevenace. It is pertinent to note that the claim files were the record of DO-XIII, NIC. The officer/official of DO-XIII from whose custody, the said files/record were seized for the first time has neither been specified nor examined by the prosecution to prove that complete record with respect to the claim in question was seized, or that the CBI Case No. 31/12 29 of 47 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.
No Consignment Sent 13.3 PW 19 Sh Mukesh Shanti Lal Shah, Partner of Quality Chemical Industries has testified that they were dealing in wax products. Sometimes, they use sulphuric acid and hydrochloric acid as a raw material for treatment of wax. They do not use any other acid for manufacturing of wax. For the process of manufacturing of wax, other chemicals are used. They had never sold acids. However, at times, the chemicals which they are unable to use are sold. He further deposed that credit memo No. 4754 dt. 1-9-98, Ex.PW19/D purportedly of Quality Chemical Industries in the name of Kochhar Trading Company was not of their company. They had never used such stationery for their company. He was saying that it was not of their company since they had never dealt with adipic acid, their memos had never reached Sl. No. 4754, nobody ever signs their invoices and memos as Manager, as has been done in Ex.PW19/B, the telephone No. 5' 172042-44' was not of their company, the printing was also not of their company, there were also mistakes in the spellings of " Navi Membai" and " for Quality Chemicals Indusfries" in Ex.PW19/D. He further testified that since beginning they had never dealt CBI Case No. 31/12 30 of 47 with Kochhar Trading Company as mentioned in Ex.PW19/D and they had never heard of Baba Nanak Associates. He also deposed about receipt memo, dt. 1-10-02, Ex.PW19/A vide which the documents were handed over by him to the CBI, letter dt. 5-4-99, Ex.PW3/A written to NIC, blank delivery challan and blank invoice of Quality Chemical Industries, Ex.PW19/B and Ex.PW19/C which were handed over to CBI as a specimen. 13.4 During his cross-examination, PW 19 Sh. Mukesh Shantilal Shah stated that he has not brought any document to show that he was partner in Quality Chemical Industries and that he has not brought books of account. He further stated that they had not filed any criminal complaint after writing letter dt. 5-4-99 to NIC and before making statement to CBI on 1-10-02.
13.5 Had accused No. 3 Ashok Kumar purchased adipic acid from Quality Chemicals, he would have interacted with somebody from Quality Chemicals and there would have been some transactions of payment or agreement to pay for the purchase of adipic acid. However, no question in this regard has been put to PW 19, Sh. Mukesh Shantilal Shah. The testimony of PW 19 Sh Mukesh Shantilal Shah has gone unimpeached and unrebutted and there is no reason to disbelive him. To prove that no consignment has been sent by Quality Chemicals, PW 19, Sh. Mukesh Shantilal Shah, partner of the said firm was the best witness. No book of accounts of Quality Chemicals are required to prove that no consignment of adipic acid was sent by them to Kochar Trading Co.
13.6 The testimony of PW 19 Sh Mukesh Shanti Lal Shah is supported by PW 20 Ms Jyotsana Vilas Rasam who has conducted investigation at Mumbai. She has also deposed about the receipt memo, dt.
CBI Case No. 31/12 31 of 47 1-10-02 Ex.PW19/A, seizure of delivery challan, Ex.PW19/B and invoice, Ex.PW19/C, vide receipt memo, Ex.PW19/A, and letter dt. 25-10-02, Ex.PW20/A written by Sh. Virender Singh, DIG, CBI, EOW Mumbai to Sh. Alok Mittal, SP, CBI, EOW-I, New Delhi. From the testimonies of PW 19 Sh Mukesh Shantilal Shah and PW 20 Ms Jyotsana Vilas Rasam, it has been clearly established that no consignment, as covered in the policy, was sent by Quality Chemical, Mumbai to Kochar Trading Co., Delhi. Non existence of Baba Nanak Associates at E-3/7 Peer Baba Road, Shivram Park Extn., New Delhi 13.7 In the GR No.987 dt. 1-9-98, placed at page 9 of the claim file, Ex. PW 2/A, the address of Baba Nanak Associates has been given as " E-3/7, Peer Baba Road, Shivram Park Extn., New Delhi - 110041" and two telephone numbers have been given as " 5479098" a nd " 5688604" . However, in the account opening form, Mark PW 14/1 of Kochar Trading Company, A-105 A, Adhyapak Nagar, Nangloi, Delhi also, the telephone number mentioned is "5479098". There is no explanation as to how Baba Nanak Associates and Kochar Trading Company had the same telephone number. It shows that the GR had been fabricated by accused No. 3 Ashok Kumar.
13.8 PW 11, Sh. Mohan Mehto who has worked as Postman from the year 1992 till 2004 in Nangloi Area and used to distribute dak, inter-alia, in Shivram Park, Nangloi has testified that as per his knowledge, at E-3/7, Peer Baba Road, Shivram Park, there was no firm working under the name of Baba Nanak Associates. So far as he was working in the area, he had not distributed dak to the said firm. During his cross-examination, it was brought out that he was the only Postman in his beat, in work exigencies other postmen were also deputed to the said beat, he used not to enter the house CBI Case No. 31/12 32 of 47 to find out that it was residence or business set up and that there was no signboard of Baba Nanak Associates at the said address. 13.9 PW 18, Sh. Gyan Chand Gupta testified that he sells Prasad at a 'Majar' at Shivram Park and also ran an STD Shop in a rented premises at E-3/3, Shivram Park near the Majar of Peer Baba. This witness was cross- examined by the Spl. P.P. during which he admitted that the shop No. might be E-3/7 instead of E/3/3. He also admitted having stated to CBI that there was no company in the name of Baba Nanak Associates and M/s Santoshi Chemicals at 3/7, Shiv Ram Park, Nangloi, Delhi during the year 1997-98. During his cross-examination on behalf of the accused persons, he deposed that in the premises where he was running STD Shop, there were 4-5 rooms, constructed behind the shop where certain tenants were residing. The owner of the building was having 3-4 water tankers. He volunteered to state that in the premises where he was running STD Shop, there was also a shop in the corner from where he used to sell 'Prasad'.
13.10 It is pertinent to mention that had the consignment in question been actually sent accused No. 3, Ashok Kumar would have known about the particulars of owner/manager of Baba Nanak Associates. Accused No. 5, Ramesh Khaneja in his report also stated about their representative going to the office of Baba Nanak Associates and discussing the matter with the concerned person. However, no question has been put to the above witnesses regarding the owner/Manager of Baba Nanak Associates. Further, in normal course of human affairs, a postman can be presumed to be aware of all the inhabitants/business establishments in the area of his beat. Thus, the testimony of PW 11, Sh. Mohan Mehto to the effect that there was no firm working under the name of Baba Nanak Associates at E-3/7, Peer Baba CBI Case No. 31/12 33 of 47 Road, Shivram Park, cannot be disbelieved.
13.11 The argument that no investigation was conducted with regard to telephone number of Baba Nanak Associates given in the GR is of no help to the accused. As earlier observed in the GR No.987 dt. 1-9-98, placed at page 9 of the claim file, Ex. PW 2/A, the telephone numbers of Baba Nanak Associates, E-3/7, Pir Baba Road, Shiv Ram Park Ext. New Delhi have been given as " 5479098" and " 5688604" . The account opening form, Mark PW 14/1 of Kochhar Trading Company, also bears the telephone number, " 5479098" . In view of the aforesaid evidence and in the absence of any explanation from the accused persons in this regard, an inference can be safely drawn that Baba Nanak Associates did not exist at its given address. Non-Existence of Kochhar Trading Company at I-1/23, Budh Vihar, Delhi.
13.12 PW 14 Sh. Lajpat Rai Sehgal, Officer, Dev Nagar Branch of Punjab National Bank, Karol Bagh, New Delhi has deposed that current account No. 4411 in the name of Kochhar Trading Company, having its address at A-105, Nangloi was being maintained in their bank. He further stated that the original account opening form has been seized in another case by the Anti Corruption Branch of CBI. He also testified about photocopy of account opening form, Mark PW 14/1, specimen signature card, Mark PW14/2 and stated that the acocunt was opened by Mr. Ashok Kumar, Proprietor, Kochhar Trading Company. He has also proved letter, dt. 30-01-2002, Ex.PW14/A issued under signatures of Sh. I.P. Girdhar, Sr. manager, regarding seizure of account opening form by the Anti Corruption Branch of CBI, statement of account of account No. 4411 of Kochhar Trading Company for the period 01-04-98 to 31-03-99, Ex.PW14/A-1, duly certified as per CBI Case No. 31/12 34 of 47 Bankers Book Evidence Act and cheque bearing No. 244854, dt. 07-10-98, Ex.PW4/J for Rs.2,50,757/- issued by Indian Overseas Bank in favour of M/s Kochhar Trading Company and the same being credited in account No. 4411 on 10-10-98.
13.13 It can be seen that in the statement of account, Ex.PW14/A-1 as well as in the account opening form, dt. 21-05-98, Mark PW14/1, the name of owner/ account holder has been given as Ashok Kumar and address of Kochhar Trading Company has been given as A-105, Adhyapak Nagar, Nangloi, Delhi. However, in the policy, dt. 31-08-98, Ex.PW4/H, address of Kochhar Trading Company has been given as " I-1/23, Budh Vihar, Delhi - 41" . Further the signatures of accused No. 3 Ashok Kumar on the account opening form/specimen signature card and those on the claim form and letters, dt. 08-09-98, 10-09-98 and claim bill dt 10-09-98 of Kochhar Trading Company are quite different. There is no explanation by the accused regarding this discrepancy. This shows not only that the address of Kochhar Trading Company given in the policy was wrong but also that the accused had dishonest intentions to cheat NIC from the very beginning. 13.14 As earlier observed, there is no explanation as to how Baba Nanak Associates and Kochhar Trading Company had the same telephone number. "5479098". It also shows that accused No. 3 Ashok Kumar had manipulated the above document.
13.15 PW15 Sh. S.N. Vats who was posted as Postmaster at Budh Vihar Post Office since 1992 deposed that no company by the name of Kochhar Trading Company exists at 1-1/23, Budh Vihar, Delhi, no such company by the said name and style was in existence in the year 1998 and no Dak at such address was ever delivered. During his cross examination, he CBI Case No. 31/12 35 of 47 stated that as a post master he never distributes dak, he never heard about the said company as the address I-1/23 is about a distance of two streets from the post office and so on this basis he stated about the non existence of the firm. He does not know who resides at I-1/23, Budh Vihar, Delhi, which is a residential house. After seeing all the accused persons, he stated that he does not recognise any of the accused who resides at I-1/23, Budh Vihar, Delhi, but again after seeing accused Ashok Kumar, he recognised him. He further stated that he does not know if accused Ashok Kochhar was the owner of I-1/23, Budh Vihar, Delhi or that he was running a company in the name of Kochhar Trading Company at I-1/23, Budh Vihar, Delhi. The testimony of PW 15 Sh. S.N. Vats seems to be natural. The fact that he was Post Master at Budh Vihar Post Office which was located at a distance of about 2 streets from the address I-1/23, indicates that he was likely to know if Kochhar Trading Company existed there. The evidence of PW 15 Sh. S.N. Vats when seen in conjunction with the discrepancies mentioned above and the fact that no consignment was sent by Quality Chemical Industries to Kochhar Trading Company lead to the inference that Kochhar Trading Company also did not exist at its given address.
Survey Report 13.16 In the survey report dt. 17-09-98 submitted by accused no. 4 Ravinder Sharma, he has given the particulars/addresses of consignor, consignee, transporter, invoice, GR and goods. It was incumbent upon him to give a report pertaining to the consignment of Adipic Acid purportedly sent by Quality Chemical Industries, Mumbai to Kochhar Trading Company through Babak Nanak Associates. It is further stated in the Report that Quality Chemical Industries , 315-A, Shiv Centre, Plot No. 72, Sector 17, Vashi, Navi CBI Case No. 31/12 36 of 47 Mumbai has despatched 3750 Kgs of Adipic Acid in 150 bags of HDPE, as per their Credit memo 4754 dt. 1-9-98 to Kochhar Trading Company, Delhi, and that the said consignment has been dispatched through Baba Nanak Associates vide their GR No. 987 dt. 1-9-98, on Truck No. HR 38 7646. Further, in his report dt. 28-9-98, Ex. PW 4/G, accused no. 4 Ravinder Sharma has stated about getting the sample of Adipic Acid tested from Ganesh Test House. In view of the unimpeached and unrebutted evidence that no consignment of Adipic Acid was sent by Quality Chemical Industries, Mumbai, as per the Credit memo 4754 dt. 1-9-98, to Kochhar Trading Company, Delhi through Baba Nanak Associates, the reports dt. 17-9-98 and 28-9-98 of accused no.4 Ravinder Sharma with respect to the consignment in question has to be, by necessary implication false. It is not the case of the said accused that he was also deceived by accused no.3 Ashok Kumar to believe that some other goods were the goods sent through the consignment in question. Accused no.4 Ravinder Sharma has thus given false survey reports dt. 17-9-98 and 28-9-98.
Verification Report 13.17 In the report dt. 6-10-98, Ex. PW 4/F on the letter head of Globe Claims Recovery Consultants, it is stated that Quality Chemical Industries , 315-A, Shiv Centre, Plot No. 72, Sector 17, Vashi, Navi Mumbai has despatched 3750 Kgs of Adipic Acid in 150 bags of HDPE, as per their Credit memo 4754 dt. 1-9-98 to Kochhar Trading Company, Delhi and that the said consignment has been despatched through Baba Nanak Associates vide their GR No. 987 dt. 1-9-98 on Truck No. HR 38 7646, which was received by them in wet condition. In view of the unimpeached evidence that no consignment of Adipic Acid was sent by Quality Chemical Industries, Mumbai, as per the CBI Case No. 31/12 37 of 47 Credit memo 4754 dt. 1-9-98, to Kochhar Trading Company, Delhi through Baba Nanak Associates, and that the Credit memo/invoice and the GR were forged, the report dt. 6-10-98, with respect to the consignment in question, is also, by necessary implication, false.
13.18 During arguments, Ld. counsel for accused No. 5, Ramesh Khaneja has argued that the verification report has not been signed by the said accused and that it has been signed by one Lalit Kumar. Accused No. 5 Ramesh Khaneja has not disputed his appointment and payment of fees by NIC to him. The verification report, dt. 06-10-98, Ex.PW4/F bears endorsement regarding receipt thereof on 06-10-98 by accused No. 1 Moti Lal Mathur. It is also pertinent to note that DW 4 Moti Lal Mathur, during his cross examination deposed that Globe Claims Recovery Consultants was appointed as verifier by the Divisional Manager. He further stated that verification report, Ex.PW4/F was submitted by the verifier and bill, placed at page 19 of the claim file, Ex.PW2/A was also raised. Once prosecution has proved that the verification report, Ex. PW4/F was submitted by Globe Claim Recovery Consultant, if accused No. 5 Ramesh Khaneja asserts that some other report was submitted by him, the onus is upon him to prove the same, as such fact, if true, would be especially within his knowledge. It has not been explained by accused No. 5 that if Ex.PW4/F is not his report, what was the report given by him. He has not produced any copy of report submitted by him. Thus it is clear that report, Ex.PW4/F was submitted by accused No. 5, Ramesh Khaneja. It is not the case of the said accused that he was also deceived by accused no.3 Ashok Kumar.
13.19 However, it has not been proved as to who has signed the said report. There is no evidence or opinion of CFSL regarding the authorship of CBI Case No. 31/12 38 of 47 signature of Lalit Kumar, marked Q-107 on Ex.PW4/F. In the CFSL Report, Ex.PW21/O, it is stated that it has not been possible to express any opinion regarding the authorship of the questioned signature Marked Q-107. Since it has not been proved that accused No. 5, Ramesh Khaneja signed the verification report, Ex.PW4/F, it cannot be held that he made the said report. 13.20 The circumstances brought on record also indicate that accused No. 4 Ravinder Sharma and accused No. 5 Ramesh Khaneja would not have given false reports unless they had conspired with accused No. 3 Ashok Kumar to cheat NIC, DO-XIII. It is, ergo, clear that accused No. 3 Ashok Kumar, accused No. 4 Ravinder Sharma and accused No. 5 Ramesh Khaneja conspired to cheat NIC, DO-XIII.
Role of Accused No. 1 Moti Lal Mathur and Accused No. 2 Yash Pal Babbar 13.21 Ld. P.P. has argued that accused No. 3 Ashok Kumar, accused No. 4 Ravinder Sharma and accused No.5 Ramesh Khaneja could not have cheated NIC by obtaining claim amount based on forged documents without connivance of officers/officials of NIC i.e accused No. 1 Moti Lal Mathur and accused No. 2 Yash Pal Babbar. Ld. Counsels for the said accused persons contended that they acted in good fatih and had no knowledge of the fraud. It is considered that no cogent evidence has been led against accused No.1 Moti Lal Mathur and accused No.2 Yash Pal Babbar to show their complicity in the matter. As earlier observed, 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 CBI Case No. 31/12 39 of 47 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. PW2 Sh A.K. Seth during his cross examination stated they had not specifically pointed out in Ex. PW1/A that M.L. Mathur or Y.P. Babbar did commit any specific irregularity or dereliction of duty. PW3 Sh A.K. Tiwari during his cross examination stated that they did not find any dereliction of duty or violation of the conduct or rules of practice in passing of claim by Sh Moti Lal Mathur and Yash Pal Babbar by and large. He further stated that there has been no violation of any rule or procedure in issuance of Policy No. 4500297 to Kochhar Trading Company. It is well settled that negligence/ dereliction in the performance of duty is different from dishonest act done in the performance of duty. To prove a dishonest or fraudulent act, prosecution has to lead some positive evidence. In Anil Kumar Bose Vs. State of Bihar, AIR 1974 SC 1560, it was held that, in case of public servant, an error of judgment or breach of performance of duty, per se, cannot be equated with dishonest intention to establish the charge u/s 420 IPC. It is, ergo, considered that evidence led by the prosecution is not sufficient to hold the said accused persons liable for conspiracy or for criminal misconduct. 14.1s The argument of Sh Umesh Sinha, ld counsel for accused No.2 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 CBI Case No. 31/12 40 of 47 detected immediately on commission. Generally, it is only after scrutiny of documents and enquiry that such offences are detected. Ld counsel has not explained as to how there was any undue delay in registration of FIR or how it was fatal to the case? He has also not shown any law which, in the facts of this case, would bar filing of more than one charge sheets in one FIR or would vitiate trial on the ground that FIR has been registered without conducting preliminary enquiry. Thus, his contention in this regard is also not tenable. 14.2 It has been argued by Sh. Rakesh Malhotra, counsel for accused No. 4 Ravinder Sharma that survey report dt. 17-9-98 and letter dt. 28-9-98 have been filed by accused no.4 Ravinder Sharma in his own name. 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, these are not false documents in terms of Section 464 IPC and, therefore, no forgery has been committed in respect of the said document. He has relied upon Md. Ibrahim & Ors. v/s State of Bihar and Anr, 2010 Cri LJ 2223 in ths regard. Ld. P.P. has argued that even though these three documents have been made or executed by accused No. 4, Ravinder Sharma in his own name, since their contents are false, the documents 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 illlustration does not apply to the facts of this case.
14.3 In this regard, it may be noted that sections 467 & 468 are aggravated forms of the offence of forgery. Section 463 IPC defines 'forgery' as "463. Forgery. - Whoever makes any false document or false electronic CBI Case No. 31/12 41 of 47 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
(b) makes or transmits any electronic record or part of any electronic record; of the electronic signature,
(b) makes or transmits any electronic record or part of any electronic record; 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).
14.4 A person can be said to have made a 'false document' if (i) he made or executed a document claiming to be someone else or authorized by someone else or (ii) he altered or tampered a document; or (iii) he obtained a document practicing deception, or from a person not in control of his senses.
CBI Case No. 31/12 42 of 47 There is a difference between execution or making of a document itself being false and the contents of a document being false. Whereas the former is covered u/s 464 IPC, the latter would not amount to f' alse document' as defined in section 464 of IPC.
14.5 In Md. Ibrahim & Ors. v/s State of Bihar and Anr. 2010 Cri LJ 2223, the Hon'ble Supreme Court held, "The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.
10. An analysis of section 464 of Penal Code shows that it divides false documents into three categories :
10.1 The first is where a person dishonestly or fraudulently makes or executes a documents with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
10.2 The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without 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 CBI Case No. 31/12 43 of 47 fall under the second and third categories of 'false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his own even though he knows that it is not his property. But to fall under first category of 'false documents' it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted".
14.6 In the present case, the survey report dt. 17-9-98 and the letter dt. 28-9-98 were not made by accused no.4 Ravinder Sharma claiming himself to be somebody else or that he was authorized by somebody else.
Therefore, even if the contents of such documents are false, the documents themselves are not f' alse document' as defined in Section 464 of IPC. Since these are not false documents, there is no forgery and thus, section 468 IPC CBI Case No. 31/12 44 of 47 is not attracted. Therefore, no case is made out against accused no. 4 Ravinder Sharma under section 468 IPC.
14.7 As observed above, the condition precedent for an offence under section 468 IPC is forgery. The condition precedent for forgery is making a false document in terms of section 464 IPC. Since prosecution has not been able to prove as to who has signed the verification report Ex. PW4/F, accused No. 5 Ramesh Khaneja can't be held liable for making the said document, though he has used the same. Therefore, no case is made out against the said accused also under section 468 IPC. 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, Ashok Kumar, accused No. 4 Ravinder Sharma and accused no.5 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 Kochhar Trading Company, New Delhi under the proprietorship of accused No. 3, Ashok Kumar, to the extent of Rs.2,50,757/-, on the basis of forged documents i.e. invoice and GR and by using as genuine such documents,
b) Accused No. 3, Ashok Kumar deceived and dishonestly induced NIC, DO-XIII, New Delhi to sanction insurance claim of Rs.2,50,757/- in favour of Kochhar Trading Company on the basis of forged documents i.e. invoice, and GR and received the cheque of claim amount which was credited in account of Kochhar Trading Company of which, he was the Proprietor, and he used the aforesaid documents as genuine knowing or having reason to CBI Case No. 31/12 45 of 47 believe the same to be forged.
15.2 However, the prosecution has not been able to prove that;
a) Accused No. I Moti Lal Mathur or accused no. 2 Yash Pal Babbar entered into any conspiracy with the co accused persons to cheat NIC,
b) Accused no. 1 Moti Lal Mathur, by use of any illegal means or by abuse of his official position, obtained any pecuniary advantage for accused No. 3, Ashok Kumar of Kochhar Trading Company, Delhi or caused any loss to the NIC,
c) Accused no. 2 Yash Pal Babbar, by use of any illegal means or by abuse of his official position, obtained any pecuniary advantage for accused No. 3, Ashok Kumar of Kochhar Trading Company, Delhi or caused any loss to the NIC,
d) Accused No. 4, Ravindra Sharma, committed any forgery,
e) Accused No. 6, Ramesh Khaneja, commited 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, Ashok Kumar, accused No. 4 Ravinder Sharma and accused no.5 Ramesh Khaneja are guilty for commission of offence punishable u/s 120-B r/w section 420/471 IPC, and they are convicted accordingly.
b) Accused No. 3, Ashok Kumar is also guilty for commission of offences punishable u/s (i) 420 IPC & (ii) u/s 471 r/w section 468 IPC, and he is convicted accordingly.
c) Accused no.1 Moti Lal Mathur is acquitted of the charges (i) u/s 120-B r/w section 420/467/468/471 IPC and section 13 (2) r/w section 13 (1) (d) of CBI Case No. 31/12 46 of 47 the PC Act, 1988, and (ii) u/s 13 (2) r/w 13 (1) (d) of the PC Act, 1988.
d) Accused No. 2, Yash Pal Babbar is acquitted of the charges (i) 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, 1988, and (ii) u/s 13 (2) r/w section 13 (1) (d) of the PC Act, 1988.
e) Accused no. 4 Ravindra Sharma is acquitted of the charge u/s 468 IPC.
f) Accused No. 5, Ramesh Khaneja is acquitted of the charge u/s 468 IPC.
16. Let the convicts be heard on the point of sentence on 03-01-2014 . Announced in the Open Court today on 20th Day of December , 2013.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi (ra)
CBI Case No. 31/12 47 of 47