Delhi District Court
Cbi vs V.S.Jafa Ors on 28 August, 2023
IN THE COURT OF SH. PRASHANT KUMAR
SPECIAL JUDGE (PC ACT) (CBI)-07
ROUSE AVENUE COURTS NEW DELHI
CNR No. DLCT11 - 000099-2019
New CC No. 01/2019
(old CC No. 26/2002)
RC No. 1(A)/1997/CBI/ACU-VI/ND
CBI Vs. A-1 V. S. Jafa S/o late Harish Chander Singh Jafa,
Former Executive Director, TRIFED,
New Delhi. R/o Jafa House, Budaun (UP)
A-2 Asong Singsit S/o Late K. Singsit,
Former G. M. (commercial)
TRIFED, Headquarter, New Delhi.
R/o 498, Hawa Singh Block, Asiad Village,
New Delhi - 110 049
A-3 Ashutosh Dutt Mishra S/o Sh. Bharat Mishra,
The then Manager, TRIFED
C/o House of Pradeep Verma (in front of
Manipal Hospital Gate), Tadong-5th ills,
Gangtok, Sikkim.
A-4 Krishan Lal Agarwal S/o Sh. Bhagat Ram
Agarwal,
R/o Khatuwala Building, Athgaon, Guwahati-
I, Assam.
A-5 Krishan Kumar Mech S/o Umesh Chand,
R/o Green Gate, Nepalipatty, Banungaon,
Tezpur, Assam -784001
Date of institution : 07.10.2002
Judgment Reserved on : 28.07.2023
Date of Judgment : 28.08.2023
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Memo of Appearance:
Sh. A. K. Kushwaha, Ld. Sr. PP for CBI.
Proceeding against A-1 abated vide order dated 16.03.2021.
Ms. Chiral Duggar, Ld. Counsel for A-2.
Sh. Rajeev Katyain, Ld. Counsel for A-3.
Sh. Vivek Jain, Ld. Counsel for A-4.
Proceeding against A-5 abated vide order dated 06.07.2018.
JUDGMENT
1. Facts of case in brief is that FIR in present case was registered on 23.07.1997, under Section 120-B IPC and Section 13 (2) r/w 13 (1)(d) PC Act, 1988 against V. S. Jafa, Asong Singsit, Kamlesh Chandra all Government Officials of TRIFED and Krishan Kumar Mech, Proprietor of M/s Mech Enterprises. As per the allegations, the above named accused persons hatched criminal conspiracy during the year 1990 with an object to cheat TRIFED for the purpose of procurement of paddy, mustard seeds and niger seeds through M/s Mech Enterprises for Khareef Season 1990-1991 to cause undue pecuniary advantage either to themselves or to M/s Mech Enterprises by awarding contract for procurement of above said material in violation of norms and procedures. The Tribal Cooperative Marketing Development Federation of India (TRIFED) came into existence on 06.08.1987 as a Multi State Cooperative Society CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 2 of 126 for the purpose to organize trade and marketing practice in respect of agricultural and minor forest produce of tribal area particularly in the interiors inhabited by BODO Tribals. Such procurement orders were issued on a year to year basis by Government of Assam with the concurrence of Central Government. Food Corporation of India (FCI) and State Federation were the only two agencies which were designated for procurement of surplus paddy in Assam. Name of TRIFED was not included in the said order.
2. During the relevant period from 26.04.1990 to 30.04.1992, A-1 Virender Singh Jafa, IAS was working as Executive Director, TRIFED, whose duties have been mentioned in circular dated 30.04.1990. As per bye laws of TRIFED, Managing Director was empowered to take any decision for conducting the business of Federation and to exercise the control over Administration. MD has not delegated any power of appointment of any procurement agent or to advance money either to an agent or to zonal office TRIFED, Guwahati in respect of procurement of activities. A-1 took active initiative to get the name of TRIFED included for the procurement of paddy from the triable areas of Assam in the State Procurement Order and requested Government of Assam to issue necessary instructions in this regard. Initially, request of A-1 V. S. Jafa was turned down by Government of Assam. Subsequently, A-1 CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 3 of 126 some how persuaded the government of Assam to allow TRIFED for the procurement activities vide its concurrence given on 06.12.1990 which was conveyed to TRIFED vide letter dated 13.12.1990 by Government of Assam.
3. A-3 Ashutosh Dutt Misra was posted and functioning as Manager as TRIFED, Zonal office Guwahati during the period 21.09.1990 to 26.08.1991. Sh. Kamlesh Chandra was posted and functioning as Zonal Manager-cum-G.M, TRIFED, Zonal Office Guwahati during the period 02.04.1990 to 26.07.1991. A-2 Asong Singsit was posted and functioning as General Manager (Commercial - I) at TRIFED, Head Office, New Delhi during 1989 to December 1990.
4. TRIFED entered into an agreement with M/s Mech Enterprises on 28.11.1990 for procurement of paddy on behalf of TRIFED from tribal farmers of Assam under the Price Support Scheme in order to avoid distress sale so that tribals could get reasonable rates as fixed by government. No approval was taken from the M.D., TRIFED for entering into agreement with M/s Mech Enterprises.
5. It is further reflected during investigation that A-1, A-2 and Kamlesh Chandra, G.M.-cum-Z.M. Guwahati had already started negotiations with single party M/s Mech Enterprises. A-
CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 4 of 126 2 had already held meetings with the representatives of M/s Mech Enterprises and consequent upon this Agreement dated 28.11.1990 was executed despite the fact that Government of Assam had approved it only on 06.12.1990. M/s Mech Enterprises has submitted a letter dated 20.08.1990 to M.D., TRIFED, Head Office, New Delhi quoting reference of A-1 V.S.Jafa and ors. He offered his services to work as procurement agent. S.K.Chauhan, the then M.D., TRIFED recorded remarks on 30.08.1990 directing the Executive Director and G.M. (C-II) to ask the G.M., Guwahati to contact the person and on discussion send a detailed proposal. But this letter was received by Asong Singsit, G.M (C-I)., who was not at all concerned with it. This proposal was never discussed by A-1, A-2 and Kamlesh Chandra, G. M., TRIFED, Guwahati with S. K. Chauhan, the then M.D., TRIFED.
6. It is further reflected that A-5 Krishan Kumar Mech had no experience in procurement of any agriculture produce nor he was having any sound financial backing. A-5 had submitted another letter dated 31.08.1991 to M. D. TRIFED, New Delhi what this letter was dealt by A-1 V.S.Jafa instead of M.D. and A-1 marked it to G. M. (C-I) i.e. A-2 with endorsement "in continuation of earlier letter and M.D's order thereon". This letter was addressed to MD but never placed before him and was dealt by A-1 V.S.Jafa who was known to A-5 K. K. Mech.
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7. A-2 along with A-1 recorded a note dated 15.10.1990 on file number 45/37/90 justifying the award of contract favouring M/s Mech Enterprises for procurement of 1.9 Lakhs qquintal of paddy and 1.75 lakh quintal of mustard seed at a total cost of Rs.4.67/- Crores. Exemption from bank guarantee, zero interest on unutilized advance and allowing 2.5% commission even without request of contractor was also recommended by A-2, in this note. This note was marked by A-2 to A-1 as well as M. D. but it was never put before M.D and A-1 dealt it by himself and marked the file to Sh.A. K. Kaul, G. M. (Finance and Account) and G. M. (C-II).
8. G.M (FA) dealt with the file and gave his comments on 22.10.1990 objecting to various proposals recommended by A-
2. He also objected to several clauses of agreement which was beneficial to M/s Mech Enterprises and detrimental to interest of TRIFED such as absence of bank guarantee, no interest clause on unutilized advances, giving higher over head charges, exorbitant commission to agents etc. A-2 again put a note on 20.11.1990, supporting his recommendation vide his earlier note dated 15.10.1990 and opposed the bank garuntee clause on the ground that it could be difficult to ask a tribal to furnish the bank guarantee despite the fact that firm of A-5 had not shown any difficulty in any of the letters sent to TRIFED.
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9. The agreement dated 28.11.1990 was signed by A-1, K. K. Mech on behalf of M/s Mech Enterprises and A-2 Asong Singsit, G. M. (C-I) on behalf of TRIFED for procurement of 1.4 lakh quintal of paddy from the trial areas of Assam during the crop year 1990-1991, as per the Price Support Scheme, at the rates of Rs.205/-, Rs.215/- and Rs.225/- per quintal for common, fine and super fine varieties of paddy, respectively. Initially, it was proposed that Rs.35/- per quintal will be the over head charges to be paid to the agent but later on, in pursuance of criminal conspiracy, it was altered to 'on actual basis' in the final agreement which enabled the agent to submit the bogus vouchers at inflated rates. Wide publicity was not given by A-1 and A-2 to attract competitive rates for the contracts. A-1 and A-2 were also not having any delegated powers by MD to any other officer of TRIFED. A-1 and A-2 also wrote to Kamlesh Chandra, G.M-cum-Z.M on 29.11.1990 mentioning that Government of India had given a sum of Rs.1 crore to meet the likely loss and a sum of Rs.30 Lakhs to meet the contingencies and also recommended that A-5 may be given few Lakhs in advance for meeting the initial expenses for organizing the procurement programme.
10.Kamlesh Chandra had sent a letter dated 14.12.1990 mentioning that TRIFED, Head office was pressurizing him telephonically CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 7 of 126 to release the funds to A-5 without obtaining bank garuntee. On this letter Smt.Priya Prakash, the then MD, TRIFED passed order of release of advance and query related to bank garuntee. After this Kamlesh Chandra released Rs.61,75,000/- without answering the query of M.D. and without obtaining utilization certificate or verifying the stock of paddy.
11.M/s Mech Enterprises supplied only 13959.17 quintal paddy costing Rs.34,98,850/- against advance of Rs.61,75,000/-. Bills pertaining to gunny bags and transportation charges as claimed by A-5 were also bogus. Kamlesh Chandra had recommended performance of M/s Mech Enterprises as exceptionally good and he had further mentioned that 1 Lakh quintals of paddy had been procured by A-5 by 19.01.1991 despite the fact that agent could procure only 1528 quintal of paddy. A-1 had given approval to procure mustard seeds through M/s Mech Enterprises on 21.01.1991 and directed S.M.Singh, G.M.(A) to sign the agreement dated 21.01.1991 with M/s Mech Enterprises. A-1 did not mark the same to M. D., TRIFED.
12.It is further reflected during investigation that Kamlesh Chander in criminal conspiracy with A-1 released Rs.1,18,00,000/- to M/s Mech Enterprises as advance in quick sucession without obtaining utilization certificate of advance given or verifying the stock of mustard seeds and niger seeds stated to be procured CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 8 of 126 by M/s Mech Enterprises. A-5 however, supplied 8692.80 quintals of mustard seeds for Rs.91,27,440/- only and 361.10 quintals of niger seeds for Rs.3,43,045/- inclusive of all over head charges and thus a sum of Rs.23,29,515/- remained with A-5. Collection of mustard seeds was local as well as from Rajasthan. Delivery challans of 37 trucks were filed and alleged to be used in transportation, however, certain challans were manipulated and fake which has been cross verified by the respective truck owners/transporters. Similarly, paddy was required to be purchased from tribal farmers of Assam but A-3 in conspiracy with Kamlesh Chander, A-5 and others procured 9200 quintals of paddy from Radhey Shyam Rice Mill, Gogamukh, Shree Madan Sharma Commission Agent, Sh. Kaan Singh Shikhawat and other local merchants from local markets in Assam. They falsely showed the procurement from Junai and allowed the bills to be passed. Bogus bills were filed.
13.Investigation has further revealed that fifteen delivery challans in case of Ravinder Kumar and four in case of Pushpa Devi mentioning certain truck numbers were bogus as transporters either had denied to had transported paddy from Junai to Narayanpur or transported paddy from Junai to Narayanpur once.
14.It is further reflected from the charge-sheet that M/s Mech CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 9 of 126 Enterprises submitted vouchers in support of bills out of which 49 bogus vouchers worth Rs.5,44,339/- were prepared by A-4, accountant/employee of A-5. There is CFSL opinion staing that fourty five vouchers worth Rs.5,00,539/- have been returned by K. K. Aggarwal. Signatures of Pawan Kumar Aggarwal have also been forged by A-4. Thus, the charge-sheet was filed and considered by court on 07.10.2002. It is reflected from the charge-sheet that Kamlesh Chandra, General Manager/Zonal Manager, who was named in the FIR as one of the main accused had expired during investigation. After thorough investigation the charge-sheet has been filed against five persons namely V.S.Jafa, Asong Singsit, Ashutosh Dutt Mishra, Krishan Lal Aggarwal and Krishan K. Mech.
15.After compliance of requirement of Section 207 Cr.P.C arguments on charge were heard and charge against accused persons namely V.S.Jafa, Asong Singsit, Ashutosh Dutt Mishra, Krishan Lal Aggarwal and Krishan Kumar Mech under section 120-B r/w Sections 420,67,468,471 IPC and Section 13 (2) r/w Section 13 (1)(d) of the Prevention of Corruption Act, 1988 and substantive offence under Section 13 (2) r/w Section 13 (1) (d) of the Prevention of Corruption Act, 1988 against accused V.S.Jafa, Asong Singsit and Ashutosh Dutt Mishra and substantive offences under Sections 467,468 and 471 against accused Krishan Lal Aggarwal and accused Krishan K. Mech.
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16.It is important to mention here that A-1 expired on 03.02.2021 during trial and proceedings against him stands abated on 16.03.2021. Similary, A-5 had expired during trial on 20.05.2018 and proceedings against him stands abated on 06.07.2018. It is also important to mention that in FIR dated 23.07.1997 name of one of the accused Kamlesh Chandra, GM/ZM was mentioned, however, he had expired during investigation. Hence, charge-sheet has not been filed against him. This person being public servant, however, is stated to have played an active role along with A-1 (since deceased), A-2 and A-3.
17. In this regard, it is mentioned that evidence against A-1 (since deceased) and A-5 (since deceased) have been led by prosecution however proceedings against them was abated on 16.03.2021 and 06.07.2018, respectively. In the light of proceedings being abated against them, therefore, none of the evidence led by the prosecution can be read against them. Thus, any reference of evidence against A-1 (since deceased) and A-5 (since deceased) is mere coincidental and any reference in this regard in following paras shall not be read as expression of any opinion upon determining their liability. Their role however, has been discussed in the following paras being necessary to determine the liability of other accused persons.
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18.Before proceeding further, considering the mandate laid down under Section 354 Cr.PC following are the points of determination which would be considered before arriving at any conclusion:-
i. Whether A-2 and A-3 along with A-1 (since deceased) conspired alongwith A-4 and A-5 (since deceased) by entering into a criminal conspiracy with an intention to cause unlawful loss to State Government and unlawful gain unto themselves by unlawfully entering into an agreement dated 28.11.1990 and 21.01.1991 unauthorizedly allowing M/s Mech Enterprises to collect paddy and seeds from Tribal areas despite the fact on 28.11.1990, TRIFED was not having power to enter into such contract?
ii. Whether A-2 Asong Singsit,General Manager (Commercial), TRIFED, Delhi and A-3 Ashutosh Dutt Mishra, Manager, TRIFED, Zonal Office Guawhati along with A-1 (since deceased) being public servant misused and abused their official position by employing corrupt and illegal means caused pecuniary advantage to co-accused A-4 Krishan Lal Aggarwal and A-5 (since deceased) to the tune of Rs.1,79,75,000/- provided as an unsecured advance money CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 12 of 126 on the basis of unauthorised agreement for the procurement of paddy, mustard seeds and niger seeds from locals instead of tribal agriculturists thereby committed an offence punishable under Section 13 (1) (d) r/w 13 (2) PC Act, 1988?
iii. Whether A-2 and A-3 along with A-1 (since deceased) after entering into a criminal conspiracy with other accused persons i.e. A-4 and A-5 (since deceased), in connivance with each other cheated TRIFED/ Government of India by dishonestly inducing it to deliver Rs.1,79,75,000/- to A-5 by dishonest misrepresentation of the fact that paddy, mustard seeds and niger seeds have been procured from tribal area through false bills, challans and vouchers thereby committed an offence punishable under Section 420 IPC?
iv. Whether A-4 Krishan Lal Aggarwal along with A-5 (since deceased) during the year 1990-1991 at Delhi and Guwahati forged various documents purported to be valuable security like challans, bills and vouchers to claim and receive money from TRIFED/Government of India having an intention that they shall be used for the purpose of cheating and also used such bills, vouchers and challans as genuine despite having knowledge or reason to believe them to be forged document thereby committed offences punishable under Sections 467, 468, 471 IPC.
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19. In order to establish its case, prosecution has examined fourty eight witnesses and on the other hand twelve witnesses were examined by accused persons in their defence evidence. Statement of A-2, A-3 and A-4 were recorded under section 313 Cr.P.C on 29.11.2018 and statement of A-1 was recorded on 15.12.2018. It is a matter of record that supplementary statements of A-2, A-3 and A-4 was again recorded on 07.02.2022, however, as per order of Hon'ble High Court of Delhi, the evidence which was recorded under Section 311 Cr.P.C relating to witness from CFSL, was directed not to be read in evidence, hence, supplementary statement of accused recorded on 07.02.2022 is of no effect which was directed to be recorded after witnesses from CFSL were examined.
FIRST POINT OF DETERMINATION Whether A-2 and A-3 along with A-1 (since deceased) conspired alongwith A-4 and A-5 (since deceased) by entering into a criminal conspiracy with an intention to cause unlawful loss to State Government and unlawful gain unto themselves by unlawfully entering into agreements dated 28.11.1990 and 21.01.1991 unauthorizedly allowing M/s Mech Enterprises to collect paddy and seeds from Tribal areas despite the fact on 28.11.1990, TRIFED was not having power to enter into such contract?
20.As per the story of prosecution, all the accused persons are stated to have hatched a criminal conspiracy under Section 120- CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 14 of 126 B IPC by having hands in gloves as well as with their active connivance, A-2 and A-3 alongwith A-1 (since deceased) entered into an agreement, for which they were not having authority to enter into, with M/s Mech Enterprises and A-5 (since deceased) as well as A-4 Krishan Lal Aggarwal vide which they allowed M/s Mech Enterprises to collect paddy, niger and mustard seeds supposed to be collected from Tribal areas but was collected locally and also accepted false and manipulated bills furnished by A-4 and A-5 (since deceased). A-2 and A-3 along with A-1 (since deceased) also allowed withdrawal of funds for this purpose most of which remained unutilized thereby causing loss to government exchequer.
21.Before proceeding further, it is important to lay down the essential ingredient of criminal conspiracy which is defined under Section 120-A IPC which reads as under: -
"120A. Definition of criminal conspiracy.-- When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof."
Explanation.--It is immaterial whether CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 15 of 126 the illegal act is the ultimate object of such agreement, or is merely incidental to that object.]
22.It is also important to mention Section 120-B IPC which lays down the punishment for criminal conspiracy.
"Section 120-B. Punishment of criminal conspiracy.--
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, (imprisonment for life) or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."
23. The essential ingredients of Section 120-B IPC are as under:
i. There is a conspiracy to commit a criminal act vide which all the accused persons have conspired with meeting of mind to commit an act which is criminal in nature. ii. Such meeting of mind with agreement to do a criminal act is such which, if committed, is punishable with death or with life imprisonment or rigorous imprisonment for a term of two years or more.
24.In order to establish a charge of criminal conspiracy, the CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 16 of 126 prosecution must prove an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means, provided that where the agreement is other than one to commit an offence, the prosecution must go further and prove that some act besides the agreement was done by one or more of the parties in pursuance of it. It is to be kept in mind that proof of overt act committed by the accused or any of them is not strictly necessary on this charge, but proof that accused or some of them were concerned in the overt act alleged would be required to establish that the agreement alleged was in fact made between them.
25.It has been categorically held in "Baccha Babu Vs. Empror", AIR 1935 All-162 that though proof of overt act is not necessary in a case, yet it may well be that if such acts are proved, the court will be bound to interfere that they are not unconnected and isolated acts but acts which must have been committed in pursuance of an agreement made between the accused.
26.Another case laid for reference is "Moti Lal Roy vs. Empror", 37 CrlJ 999 in which it has been held that where a conspiracy between several persons is alleged, it is not necessary for prosecution to prove, before it can be held established, that each conspirator knew and had personal communication with all the CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 17 of 126 rest, because some of them might be intermediaries proof that accused entered into agreement to do unlawful act, is sufficient.
27.In this regard, it is important to mention here that in such cases where criminal conspiracy is considered to have been proved, any direct evidence is seldom available. It is the conduct of the parties, which has to be inferred from the entire subsequent circumstances as alleged in the charge-sheet and narrated by the prosecution which has to be considered. No doubt, criminal conspiracy always take place in enclosed environment and in privacy, however, it is their subsequent conducted i.e. their overt act, which has been to seen and considered.
28.The offence under Section 120-B IPC, therefore, is an agreement between the parties to do a particular act. Association or relation to lead a conspiracy is not enough to establish the intention. It has been held in "Sanjeev Kumar Vs. State of Himachal Pradesh", AIR 1999 SC 782. To bring home the charge of conspiracy within the ambit of Section 120-B IPC it is thus necessary to establish that there was an agreement between the parties for doing an unlawful act. It has been held in "Vijayan Vs. State of Kerela" AIR 1999 SC 1086.
29.Now, coming to the present case. One of the charge framed against all the accused persons is under Section 120-B IPC. One CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 18 of 126 of essential piece of document is the FIR dated 23.07.1997 and final report filed in this case which has enshrined all the facts emerging from the investigation conducted by the IO. The foremost allegation by which the entire incident is stated to have initiated is that A-1 (since deceased) was known to or having acquittance with A-5 (since deceased). In this regard, A- 1 (since deceased) had recommended the name of M/s Mech Enterprises and A-5 (since deceased) on earlier occasion, prior to 28.11.1990 which was however not considered. The proposal mooted by A-1 (since deceased) to grant contract to private person to collect paddy, niger and mustard seeds, was under
consideration with the Assam Government for which, as per record, no consent is said to have been received till 28.11.1990. It is important to mention here that the decision to allow TRIFED to enter into an agreement with third person/agent for procurement of paddy and seeds was considered and allowed as mentioned in marked as 'Mark PW12/PX' which are Minutes for decision of procurement of paddy and mentioned in marked as 'Mark PW12/PX1' dated 13.12.1990 vide which such decision has been taken. The allegation against A-2, A-3 along with A-1 (since deceased) and another persons Kamlesh Chandra, General Manager (who is stated to have named in FIR but expired during investigation) are that TRIFED was not having authority to enter into any agreement to allow the collection of paddy, niger and mustard seeds from the tribal CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 19 of 126 area till 28.11.1990. In this regard, the evidence led by prosecution is perused and discussed thoroughly as under:
30.PW-1 is retired Executive Director, TRIFED who joined as Deputy General Manager in the year 1990. It is stated by this witness that, at that time, S.K.Chauhan was Managing Director and S.M.Singh and Asong Singsit were posted as General Manager in TRIFED. It is stated by PW-1 that there is a letter dated 31.08.1990 (D-3) exhibited as Ex.PW1/2 which is containing a note and signature of A-1. There is another letter dated 01.09.1990 (D-4) bearing initials of accused Asong Singsit, which is Ex.PW1/3. There is another noting exhibited as Ex.PW1/4 (D-5) dated 15.10.1990, which is under the signature of A-2. There is another noting dated 16.10.1990 (D-
5) Ex.PW1/5 bearing signature of A-1 (since deceased). Vide these documents name of M/s Mech Enterprises and A-5 (since deceased) have been recommended by A-1 (since deceased) and Kamlesh Chandra, General Manager, who expired during investigation. It is important to mention here that all these above mentioned letters, none of which is disputed during cross-examination by any accused persons, reflects that Kamlesh Chandra and A-1 (since deceased) had been proposing the name of A-5 (since deceased) and M/s Mech Enterprises to be considered for agent of TRIFED.
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31.During cross-examination of PW-1, it is stated that in case Managing Director is not available then he has to delegate his power in writing to some other official of TRIFED, who may act in his absence. PW-1 has stated that he was not aware whether such power was delegated in favour of A-1 (since deceased). It is further stated by PW-1 that as per noting dated 05.12.1990, exhibited as Ex.PW1/D-1 the matter was examined urgently, however, as per the directions of A-1 (since deceased) and there is an endorsement made by A-1 (since deceased) directing PW-1 to examine the matter urgently which is Ex.PW1/D-2. PW-1 has further stated that he had raised objections regarding proposal but his objections were not taken into consideration.
32.It is needless to say that the agreement with M/s Mech Enterprises is dated 28.11.1990, however the Assam government had taken decision by allowing TRIFED, authorizing it to collect paddy, niger and mustard seeds from tribal areas which was communicated on 13.12.1990. As per allegation, A-2 and A-3 along with A-1 (since deceased) have never discussed in writing with the then Managing Director S. K. Chauhan. So far as, date of agreement being 28.11.1990 and receiving the approval of government later on, on 13.12.1990 is a matter of record which is not disputed by any of the accused persons. None of the accused persons have shown CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 21 of 126 or brought on record any document that they had discussed the matter with the then Managing Director S. K. Chauhan. A-5 (since deceased) had written a letter dated 31.08.1990 to the then Managing Director, however, as per record it was dealt only by A-1 (since deceased) and not the Managing Director. There is another note dated 15.10.1990 on record vide which A- 2 along with A-1 (since deceased) have been justifying the award of contract favouring M/s Mech Enterprises. This note, though marked to Managing Director but was never placed before him.
33.PW-10 A. P. Singh, the then Resident Commissioner, Government of Assam is an important witness of prosecution, who has stated that the TRIFED wanted to procure the agricultural produce from the tribal areas for which MD TRIFED had requested for a meeting with the then Chief Minister, Assam which was arranged in New Delhi. There is one wireless message dated 20.10.1990 exhibited as Ex.PW10/1 (part of D-261). There is another telex message dated 15.11.1990 given to Secretary (supply), Assam which is Ex.PW10/3. In this meeting, the proposal of TRIFED was in Principal agreed by Chief Minister of Assam that TRIFED can be involved in procurement of produce from the farmers and further coordination required in between State Government officials and local agencies to work out the modalities of CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 22 of 126 procurement, however, no assurance was given by the Chief Minister of Assam. Draft minutes of the meeting dated 17.11.1990 are marked as PW10/PX. It is stated by PW-10 that till he remain Resident Commissioner up till 1991, he did not receive any message of confirmation of those message.
34.PW-7 is another witness examined by prosecution, who is stated to be typist-cum-clerk of TRIFED during the year 1991. She had identified the signatures of A-2 Asong Singsit on order dated 01.12.1990 exhibited as Ex.PW7/1 (D-44). A-3 Ashutosh Dutt Mishra has issued instructions to her in this regard to consider various challans submitted by A-4 and A-5 on behalf of M/s Mech Enterprises pertaining of collection of paddy, niger and mustard seeds. These bills are found to be exaggerated or manipulated and false. Similarly, PW-9 Sanjay Shrivastav, Senior Assistant, TRIFED Headquarter has stated that he had received instructions from A-3 Ashutosh Mishra to consider the challans and receipt vouchers.
35.PW-11 K. P. Rao who was the then Deputy General Manager, TRIFED has stated that as per the bylaws of TRIFED, Managing Director was competent to sign agreement on behalf of TRIFED. Such agreement could also have been signed by any of the officer authorised by Managing Director. There is one letter dated 19.04.1991 addressed to Managing Director, CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 23 of 126 TRIFED Ms. Priya Prakash sent by Shyam.S.Aggarwal, Deputy Secretary, Government of India regarding deficit incurred by TRIFED which is Ex.PW11/1. This witness has acknowledged various correspondence made by Kamlesh Chandra (since deceased), A-1 (since deceased), A-2 Asong Singsit vide which details of procurement of paddy, niger and mustard Seeds are mentioned.
36.Next witness examined by prosecution is PW-12 N. Kurbha, Regional Manager, FCI. PW-12 had identified file (D-264) exhibited as Ex.PW12/1. In the year 1990, FCI appointed TRIFED as an agent for procurement of paddy from tribal areas of Assam. She further deposed that she had seen minutes of meeting marked as Mark PW12/PX, held on 06.12.1990 regarding procurement policy of rice/paddy which was attended by her. She had also identified letter dated 13.12.90 addressed to Senior Regional Manager, Food Corporation of India which is marked as Mark PW12/PX1. She had also identified office copy of letter dated 18.12.90 exhibited as Ex.PW12/2, addressed to General Manager, TRIFED, Zonal Office, Guawhati written by her bearing her signatures at point A, vide which she conveyed the procedure and terms of procurement of paddy and the price supporting scheme.
37.This witness has not been cross-examined by any of the accused CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 24 of 126 persons despite being given an opportunity to cross-examine. Thus, no material contradiction emerged from the cross- examination of this witness.
38.PW-14 are PW-15 are private persons of local areas Lakhimpur, who have charges cess of transport vide which goods i.e. collection of paddy, Niger and Mustard seeds were transported. It is needless to say that collection and transport of paddy, Mustard and Niger seeds through various transporters like PW-18 Gopal Rathi, who is owner of one of the truck, PW- 19 Ronald Sangma, who is local farmer, PW-24 Nawal Kumar Aggarwal, who is transporter, PW-30 Bal Kishan Sharma another transporter Guwahati. PW-39 Kamal Kumar another transporter, PW-41 Madan Sharma, commission agent, PW-43 Pawan Kumar Aggarwal, another transporter, PW-44 Diganto Baruah, who is a businessman and has denied debit vouchers showing payment made to him, PW-45 Rajinder Kumar, another transporter have also disputed these facts mentioned in vouchers. Above named transporters and businessmen have either denied the vouchers/receipts issued in their names alleging that their trucks have not been used or they have stated that they had collected the paddy, niger and mustard seeds, mostly locally. It is also needless to say that collection of paddy, niger and mustard seeds was to be made from the CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 25 of 126 forest and tribal areas and not locally. These witnesses have disputed and denied the vouchers/receipts shown to them.
39. It is also matter of record that such vouchers/receipts are filed along with the claim for the work done by and on behalf of M/s Mech Enterprises and A-5 (since deceased) and they are dealt with A-2 Asong Singsit, A-3 Ashutosh Dutt Mishra along with A-1 (since deceased) besides other persons.
40.From the cross-examination of these above named witnesses no material contradiction has however emerged to the extent of documentary evidence as mentioned above, placed on record.
41.With regard to overt act, which is an essential ingredient and constituent of offence of criminal conspiracy defined under Section 120 A IPC and punishable under Section 120-B IPC, a number of vouchers, delivery challans are filed on record. As mentioned above already, these delivery challans and vouchers are pertaining to vehicles, most of which are found to be not correct as stated by a number of prosecution witnesses as mentioned above and those who have stated that they had collected paddy or niger or mustard seeds were collected mostly locally and not from tribal/forest area.
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42. As per allegation in charge-sheet certain fake challan/bills are sought to have been filed under handwriting of A-4 Krishan Lal Aggarwal. There is no supporting evidence from the side of prosecution in this regard however, to establish the fact that such forgery and manipulation has been done by A-4 Krishan Lal Aggarwal. The issue pertaining to CFSL report and allegation against A-4 Krishan Lal Aggarwal however shall be further discussed in detail separately under fourth point of determination in subsequent paras.
43. In the light of above mentioned evidence led by prosecution it is, therefore, reflected that A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra along with A-1 (since deceased) had not only suggested, proposed but recommended as well, the name of M/s Mech Enterprises, and A-5 in the name of which the agreement to collect paddy, niger and mustard seed from forest and tribal ares was awarded in favour of M/s Mech Enterprises vide agreement dated 28.11.1990. Prosecution has also led the evidence supported with documentary evidence that till 28.11.1990, TRIFED was not authorised by Assam Government to enter into such an agreement.
44.It has also been shown by the prosecution by way of documentary evidence that such agreement either should be CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 27 of 126 signed by Managing Director or any such person authorised on its behalf. Agreement dated 28.11.1990 is neither signed by Managing Director nor A-1 (since deceased) was authorised by Managing Director in writing on 28.11.1990 to enter into such an agreement and sign the same. There is no material contradiction emerging from testimonies of either of the prosecution witness nor anything contrary is being reflected from the testimonies of defence witnesses by which contrary opinion could be formed. Manipulated vouchers/delivery challan/receipts containing fake vehicle numbers are also filed on record which are not controverted during examination of either of the witness.
45.Thus, prosecution has been able to shift the onus upon the accused persons regarding allegation of criminal conspiracy however, in my considered opinion none of the accused persons i.e. A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra have been successful in shifting the onus again upon the prosecution by placing on record any document to the contrary that any of the delivery challans/vouchers were not filed by A-4 Krishan Lal Aggarwal and A-5 (since deceased) which were dealt with by A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra along with A-1 (since deceased).
46.With regard to liability of A-4 Krishan Lal Aggarwal qua CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 28 of 126 averment of hatching criminal conspiracy, it is important to mention here that the only documentary evidence filed by prosecution against him is that he had filed certain forged and manipulated bills/challans. A-4 Krishan Lal Aggarwal is stated to be an employee and accountant of A-5 (since deceased) and M/s Mech Enterprises. In my considered opinion, in order to determine the liability of an employee like A-4 Krishan Lal Aggarwal something much more is required to be brought on record that besides filing of alleged forged challans/bills he had played active role in such commission of crime. So far as, role of A-4 Krishan Lal Aggarwal is concerned, if factum of forged and manipulated bills and challans are not considered, presuming for the sake of arguments, then rest of the averment against him are oral.
47. It has been argued on behalf of A-4 Krishan Lal Aggarwal that he was an employee of M/s Mech Enterprises, therefore, he was following mere instructions of his employer hence cannot be said to be carrying the same intention as his employer could have been. CFSL report, as per record has neither been brought on record during evidence nor has been established by the prosecution. An order dated 08.03.2018, is however, important to mention here vide which such CFSL report has not been disputed, hence, has been considered as admitted as mentioned in the order itself. One of the important document containing an CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 29 of 126 averment that questioned document is in the handwriting of the accused as his sample handwriting has been matched, is missing. This query can only be answered by the prosecution. This issue shall be specifically dealt in subsequent paras. At this stage, it is mentioned that as the relevant document that it was A-4 Krishan Lal Aggarwal, whose sample handwriting was taken which was matched with questioned document i.e. manipulated bills is missing, therefore, the connecting chain pertaining to overt act on the part of A-4 Krishan Lal Aggarwal is missing in my considered opinion. Submissions made on behalf of A-4 Krishan Lal Aggarwal to this extent, therefore, are tenable in the eyes of law.
48. Now, coming to the evidence led by accused persons. It is needless to say that A-1 (since deceased) has examined 9 witnesses, however, as he expired on 03.02.2021 and proceedings qua him was abated vide order dated 16.03.2021. Therefore, as nothing incriminating/inculpatory material brought by prosecution can be read against him, similarly, evidence led by and on behalf of A-1 in his defence and any material brought by him in support of his contention, therefore, cannot be looked into, as per law, hence are not relevant.
49. A-2 Asong Singsit has brought two witnesses in his defence. One of the witness is D2W1 Amit Bhatnagar, Deputy General CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 30 of 126 Manager, who brought record pertaining to minutes of board meeting for the period 1990-1998 which are exhibited as Ex.D2W1/1 (colly.) to D2W1/35 (colly.). The document placed on record by this witness are perused. A lot has been discussed vide these meetings, however, the fact decided through these meetings pertains to the year 1990 and one or two years prior to that. Vide these meetings, as reflected from above mentioned documents brought on behalf of A-2 reflects that Managing Director of TRIFED or any person authorised by him in writing, is having the power to decide the action taken on behalf of TRIFED. Allegation against accused persons, as per charge- sheet, are that A-1 (since deceased) had taken decisions for TRIFED without any authorization or concurrence of decision of Managing Director. This witness has not stated anything besides this and has not been cross-examined from the side of prosecution, as well.
50.Another witness examined on behalf of A-2 is D2W2 V. A. Sudhakaran, PS to MD TRIFED, New Delhi, who brought the record pertaining to departmental proceedings. It is needless to say that, as per record, departmental proceedings were initiated against A-2 Asong Singsit and during these proceedings he was removed from service. It is important to mention here that findings given during departmental proceedings may be relevant but they are independent proceedings and the case of CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 31 of 126 prosecution is entirely dependent upon the investigation carried out by IO and documents/materials which are collected are enshrined in the final report filed, before this court. As per Indian Evidence Act, in my considered opinion, the relevancy of the findings in the departmental proceedings is for corroborative purpose. Thus, the material collected by IO and evidence led in support therewith is the main deciding factor which is to be seen primarily. Nothing more than the record pertaining to these proceedings has been brought on record by and on behalf of A- 2 Asong Singsit.
51.From the careful perusal of Ex.D2W2/A (colly), there is one document dated 15.10.1990 filed along with the file of departmental inquiry which is under signature of A-2 Asong Singsit. This document is with the heading 'OPERATION SAP
- ASSAM'. In which the matter pertaining to the collection of paddy, Niger and Mustard seeds by TRIFED from forest and tribal areas has been discussed, which is mentioned as 'Annexure-B' in its internal page No. 9. It is mentioned that, 'The Agreement is to be signed by TRIFED and his proposed agent has been drafted which is at Flag - E'. It is has been further mentioned that, 'The proposed agreement will be vetted by TRIFED's Legal Advisor after the proposal is accepted in principal by the Competent Authority.' CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 32 of 126
52.It has been further observed at internal page No. 10, that 'payment of the commission may be made after entire operation of purchase of paddy is over and accounts are finally settled.' In the end of this 'SAP', it is mentioned that, 'the proposed agent has gone through the agreement and has accepted'. Vide this SAP the name of A-5 (since deceased) and M/s Mech Enterprises, Kucheria Bhawan, Tokobari, Guwahati has been proposed to be appointed as agent of TRIFED for procurement of paddy and mustard seeds. It is also reflected from this 'SAP' that normally TRIFED has been insisting on obtaining a bank guarantee or some sort of security against release of advance payment, however, in present case agent being a tribal, after discussion with firm's representative, G.M-cum- Z.M. and E.D. , this requirement has been relaxed. It is further reflected from this 'SAP' mentioned at its internal page No. 17 which is again under signature of A-2 Asong Singsit, dated 20.11.1990. It has been observed that it is difficult to obtain a guarantee from a tribal, therefore, it is relaxed.
53.There is another 'SAP' dated 29.11.1990, under signature of A- 2 Asong Singsit, which is just after approval of the agreement dated 28.10.1990. It has been observed that all the formalities as been mentioned in the previous SAP have been completed. Authority has been given to M/s Mech Enterprises to collect and procure paddy, niger and mustard seeds. There is another CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 33 of 126 SAP under the signature of A-2 Asong Singsit, dated 04.12.1990, vide which advance payment has been allowed to be released in favour of A-5 (since deceased) and M/s Mech Enterprises qua their respective commission, though it has been mentioned in the previous SAPs that it has to be made after the finality of the bills so raised. Vide this SAP dated 04.12.1990 under the signature of A-2 Asong Singsit, Rs.6 Lakhs have been proposed to be released in favour of M/s Mech Enterprises.
54. Thus, it is reflected from the documents filed before concerned departmental inquiry committee and relied upon by A-2 himself vide Ex.D2W2/A (colly) that A-2 Asong Singsit has been working as subordinate of A-1 (since deceased). It has been mentioned in the charge-sheet as well as supported with the testimonies of prosecution witness that name of M/s Mech Enterprises was proposed by A-1 (since deceased) and endorsed by A-2 Asong Singsit. The above mentioned 'SAPs' which are filed along with the file of departmental inquiry initiated against A-2 Asong Singsit in which he is stated to have been removed. A-2 Asong Singsit has, as reflected from the record itself, taken a stand that guarantee which is normally required from a firm is not to be asked for in the present case and advance payment towards part of commission may be released despite specific directions vide SOP dated 15.10.1990 that it shall be released after final bills are settled. All these decisions have been taken CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 34 of 126 under supervision of A-1 (since deceased) and with the help of A-3 Ashutosh Dutt Mishra, as reflected from the record itself. Such an act on the part of A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra fall under the category of 'Overt Act' which is one of the essential ingredient of Section 120-B IPC.
55.A-3 Ashutosh Dutt Mishra has also examined Virender Kumar Tiwari, Senior Assistant, TRIFED, Head Office, New Delhi, who brought the record pertaining to ACRs for A-3. It is needless to say in this regard that remark in ACRs of any of the accused person whether good or bad cannot be the criteria of deciding his criminal liability in present case. Past conduct of accused howsoever, bad it may be, is not relevant here. Similarly, there may be a number of good instances and acknowledgment previously, however, such instance of good behaviour, again cannot exonerate a person from any subsequent criminal act committed by such person on the basis of such good conduct on previous occasion. Thus, in my considered opinion ACRs of A-3 are not relevant and cannot be said to be the basis of determining the criminal liability of any of the accused persons including A-3.
56.As per the story of prosecution, there are number of vouchers and bills filed and claimed on behalf of A-4 Krishan Lal Aggarwal and A-5 (since deceased), on the basis of which an CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 35 of 126 advance towards part of commission has been released in favour of M/s Mech Enterprises which was against the decision taken by and on behalf of TRIFED as reflected from 'SAP' dated 15.10.1990. A number of prosecution witnesses has stated that procurement of paddy and collection of Niger and Mustard seeds was to be done from the tribal and forest areas, however, most of the procurement and collection is stated to be from the local areas as the vehicles/trucks used for transportation are either found to be collecting/procuring from the local areas or the numbers of some of the trucks/vehicles are found to be bogus.
57. It has been argued on behalf of A-2 Asong Singsit that he was the junior officer in hierarchy and merely following the directions of his superior V.S. Jafa, TRIFED, to whom he had to report. It is stated that A-2 Asong Singsit has been made scape-goat. He has clearly stated in draft agreement dated 15.10.1990 that agreement was to be vetted by legal team. It is stated that board of TRIFED had not find action of A-2 Asong Singsit being against the interest of organization. A-2 has further argued that once the agreement dated 28.11.1990 was signed he was immediately transferred to Bhubhaneshwar office. Advance for procurement had been released by Ms.Priya Prakash, PW-48. It is further stated on behalf of A-2 Asong Singsit that A-2 Asong Singsit after relying upon the judgment CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 36 of 126 of "State of Kerala Vs. P.Sughatan', (2000) 8SCC 203 wherein it has been held that "a few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy."
58.A-3, on the other hand, has argued that in order to establish the charge of criminal conspiracy against A-3 Ashutosh Dutt Mishra, he should be shown to have agreed with others to do or cause to be done for an illegal act. It is stated that there is no material on record to show that A-3 Ashutosh Dutt Mishra had any knowledge association of agreement so as to enable him to be party to the conspiracy. A-3 Ashutosh Dutt Mishra had not adopted any illegal means in furtherance thereof. A-3 Ashutosh Dutt Mishra has relied upon certain judgments in support of his contention as under:
i. Kehar Singh's case 1988 (3) SCC 609 at para 271 page 731 wherein it is held that:
"The gist of offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge or even discussion of the plan is not, per se enough."
ii. Nalini's case (1999) 5 SCC 253 at Pr 662 S. S. M. Quadri. J.
CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 37 of 126 pointed out that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is a sine qua non of the criminal conspiracy.
59. A-4 has also argued on similar lines alleging that he was a mere employee of A-5 Krishan Kumar Mech and M/s Mech Enterprises. Prosecution has not brought any document or material on record to establish that he had conspired with A-5 (since deceased) or with other accused persons or had contributed anything in furtherance of such criminal conspiracy. It is stated by him that whatever he has done was merely done as per the directions of his employer. It is further stated by A-4 Krishan Lal Aggarwal that the allegation of forgery which is shown as one of the material piece of evidence by the prosecution allegedly supported by CFSL report, has not been established and proved during recording of evidence. Thus, no evidence is available against A-4 Krishan Lal Aggarwal. So far as, role of A-4 Krishan Lal Aggarwal is concerned final opinion in this regard shall be given after deciding the other points of determination as his liability is dependent upon the allegation of his contribution in commission of the act by placing on record the forged bills/challans.
60.From the perusal of the entire record and the evidence led on behalf of the prosecution as well as by accused persons in their CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 38 of 126 defence, it is needless to say that criminal conspiracy is always hatched in secrecy and it is very rare to find any direct evidence showing that accused persons were involved in criminal conspiracy. It is their conduct and overt act by which it has to be construed as to whether there was any criminal conspiracy entered into in between them or not. In this regard, in my considered opinion, the commission of crime and direct documentary evidence showing the liability of accused person is nothing but considered as an overt act as one of the essential ingredient of criminal conspiracy. It is also important to mention here that in most of the cases, where there are more than two accused persons they commit act in parts showing the same to have been done under the colour of their official duties. Thus, in my considered opinion the intention or knowledge has to be gathered from the act committed by such accused persons as to whether the act committed by them was deliberate and conscious or mere following the order of superior or doing their routine work, as per requirement.
61. A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra though have claimed their innocence that they were following the instructions of their superior however considering the element of willful omission as well as negligence on their part, the prosecution has brought on record the conscious persistent effort on the part of A-2 Asong Singsit that he had not only CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 39 of 126 followed the instructions of A-1 (since deceased) but also prepared a note dated 15.10.1990 and 16.10.1990 and various other notes mentioned in 'OPERATION SAP - ASSAM' vide which certain decisions were taken against the bye-laws of TRIFED i.e. not asking for the bank guarantee or relaxing the requirement of advance payment as well as redefining the terms and conditions for payment of overhead expenses and incidental charges claimed by the agents i.e. A-5 (since deceased) and M/s Mech Enterprises. Prosecution has further shown the role of A-3 Ashutosh Dutt Mishra by way of examining number of prosecution witness that he was Incharge of Narainpur Center, Guwahati, Assam but he consciously allowed the manipulated and forged bills to be filed by and on behalf of A-5 (since deceased) and M/s Mech Enterprises. Letter dated 21.01.1991 exhibited as Ex.PW6/2 is an instance of such conscious decision taken by him for which he was solely responsible to look into.
62.There is another letter marked as Mark PW6/DX-1 (D-9) wherein he has shown his concern or non release of payment to M/s Mech Enterprises. PW6 and PW-7 have also stated that A- 3 Ashutosh Dutt Mishra used to issue instructions to them for filling up the challans. Hence, PW-6 and PW-7 just filled up the challans as per the directions given by A-3.
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63.In my considered opinion, therefore, such an act of collection and procurement from local areas and furnishing bogus numbers of trucks/vehicles in the bills filed for claim cannot be said to be without the knowledge of officials/owner of M/s Mech Enterprises and A-5 (since deceased), who have been arrayed as an accused in the present case. Thus, all the essential ingredients of section 120-B IPC, in my considered opinion stands established against A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra. Further discussion in this regard, more particularly pertaining to role of A-4 Krishan Lal Aggarwal shall be made in the following paras along with other points of determination.
SECOND POINT OF DETERMINATION Whether A-2 Asong Singsit, General Manager (Commercial), TRIFED Delhi and A-3 Ashutosh Dutt Mishra, Manager, TRIFED, Zonal Office Guawhati along with A-1 (since deceased) being public servant misused and abused their official position by employing corrupt and illegal means caused pecuniary advantage to co-accused A-4 Krishan Lal Aggarwal and A-5 (since deceased) to the tune of Rs.1,79,75,000/- provided as an unsecured advance money on the basis of unauthorised agreement for the procurement of paddy, mustard seeds and niger seeds from locals instead of trial agriculturists thereby committed an offence punishable under Section 13 (1)
(d) r/w 13 (2) PC Act, 1988?
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64.One of the Sections under which charge has been framed against A-2 and A-3 is under Section 13 (1) (d) r/w 13 (2) PC Act, 1988, besides other sections of IPC. Before proceeding further, it is important to throw some light upon the essential ingredients of the charges so framed against A-2 and A-3. Section 13 (2) (prior to amendment July, 2014) is the enabling provision of providing substantive imprisonment which is minimum for a period of 1 years but which may extend to seven years and shall also be liable to fine.
65.Section 13(1)(d) PC Act, The Prevention of Corruption Act, 1988 reads as under:
(1) A public servant is said to commit the offence of criminal misconduct-
(d) if he,--
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage;
or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
66. Section 13 (1) (d) (i) and (iii) PC Act, 1988 are not relevant CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 42 of 126 here qua A-2 and A-3 as there are no allegation against them that they obtained any unlawful or undue advantage or benefit nor there is any evidence to that extent available on record. Thus, Section 13 (1) (d) (ii) PC Act, 1988 is attracted here against A-2 and A-3. The essential ingredients of Section 13 (1)
(d) (ii) PC Act, 1988 are : -
i. A public servant.
ii. Abuse of his position as public servant. iii. Obtains for himself or for any other person any valuable thing or pecuniary advantage.
67.A-2 Asong Singsit, General Manager (Commercial), TRIFED and A-3 Ashutosh Dutt Misra, Manager TRIFED, Zonal office Guwahati, both are public servants which is not disputed and it is matter of record. It is stated in the charge-sheet that A-1 (since deceased) being master mind of the offence, influenced and took into confidence A-2 and A-3 by keeping his hands in gloves with them, who not only facilitated the formulation of main policy of procurement of paddy and niger and mustard seeds from tribal areas under TRIFED through private persons i.e. M/s Mech Enterprises and its owner A-5 and A-4 Krishan Lal Aggarwal, its employee.
68. Thus, the allegation against A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra are that they misused their official CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 43 of 126 position. In this regard, as per allegation in the charge-sheet the date of entering into agreement by TRIFED i.e. 28.11.1990 and receiving the communication from State of Assam for ratification and authorizing TRIFED to enter into such agreement i.e. 13.12.1990 are relevant.
It is important to mention here that there is sanction to launch prosecution against A-3 Ashutosh Dutt Mishra vide order dated 19.08.2002 for which PW-2 Somnath Pal, MD of TRIFED has been examined. This fact has not been disputed being matter of record. PW-2 has not been cross-examined but only one suggestion from the side of A-3 Ashutosh Dutt Mishra is given that on the basis of material placed before sanctioning authority no case was made out against A-3 Ashutosh Dutt Mishra. Thus, so far as procedural requirement of obtaining sanction against A-3 Ashutosh Dutt Mishra is concerned it is not disputed. A-2 Asong Singsit was removed from service on 01.09.1996 after conducting departmental inquiry against him. It is a matter of record and not disputed. The record pertaining to departmental inquiry has not only been relied upon by the prosecution but by A-2 Asong Singsit, as well for which the relevant document is Ex.D2W2/A (colly.). It is needless to say that prior to amendment in P.C.Act in the year 2018, no sanction to launch prosecution was required in case if the concerned public servant stands retired or removed or in other words, remains no more in service on the day of filing of charge-sheet. There is no sanction CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 44 of 126 sought against A-2 Asong Singsit, as a matter of record.
69.The second essential requirement as mentioned above i.e. 'Abuse of his position as public servant' which is to be seen from the record that whether prosecution has been able to establish this fact and has been able to shift the onus upon A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra and thus, been able to discharge the burden of proving this fact upon them.
70.In this regard, an admitted position being reflected from the record as per bye-laws of TRIFED is that only MD of TRIFED or any officer authorised by him in writing has the power and authority to enter into an agreement with third person. In the present case the allegation against A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra along with A-1 (since deceased) are that A-1 (since deceased) being Executive Director, TRIFED had proposed the name of M/s Mech Enterprises as one of the agent for procurement of paddy, niger and mustard seeds from tribal and forest area which was once not considered prior to 15.10.1990. The allegation against A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra along with A-1 (since deceased) are that M/s Mech Enterprises was already known to them. Prosecution however, has not been able to place on record much documentary evidence that M/s Mech Enterprises was already known to them and having dealings with them except letters CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 45 of 126 dated 20.08.1990, 01.09.1990 and 31.08.1990. Proposing the name of M/s Mech Enterprises howevever more than once, to a certain extent indicate some connection in this regard. This presumption is further strengthened from the fact that certain essential requirements like relaxation of furnishing guarantee, advancement of part amount of expenses incurred by such agent etc., to be fulfilled by such agent were relaxed in which A-2 Asong Singsit along with A-3 Ashutosh Dutt Mishra in consonance with A-1 (since deceased) were instrumental. 'OPERATION SAP - ASSAM' which are part of Ex.D2W2/A (colly.), are under the signature of A-2 Asong Singsit and further endorsement of A-1 (since deceased).
71.In this regard, testimony of PW- 1 A. K. Kaul, the then Executive Director of TRIFED is relevant to mention here. In his examination in chief, as already stated above, he has stated that A-5 (since deceased) had written a letter dated 20.08.1990 addressed to CMD TRIFED which is Ex.PW1/1. This letter was marked to ED/GM (C), this letter also bears the signatures of A-2 Asong Singsit. The purchase of paddy and mustard oil was related to commercial division which was headed by A-2 Asong Singsit. There is another letter dated 31.08.1990 (D-3) exhibited as Ex.PW1/2 containing a note and signature of A-1 (since deceased) which has been marked to GM (C-1). Below the noting on Ex.PW1/2, A-2 Asong Singsit has put his initials.
CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 46 of 126 There is another letter dated 01.09.1990 exhibited as Ex.PW1/3 written by A-2 Asong Singsit and addressed to M/s Mech Enterprises wherein A-2 Asong Singsit is stating that name of M/s Mech Enterprises has been discussed by A-2 Asong Singsit with Executive Director and in order to work out possible modalities for appointment of M/s Mech Enterprises as agent on behalf of TRIFED for procurement of surplus agricultural produce. Vide this letter A-2 Asong Singsit has asked M/s Mech Enterprises and its Director, A-5 (since deceased) to visit Bodo area and tribal area of Assam so that matter can be finanalied expeditiously. There are other office note dated 15.10.1990 exhibited as Ex.PW1/4 (D-5). There is another noting dated 16.10.1990 at page No.11 of D-5 under handwriting of A-1 (since deceased) at point A on Ex.PW1/5. Vide this noting, it was marked to PW-1 A. K. Kaul, who made his noting at page No. 12, 13 and 14 on file D-5 bearing his signature at point A which is Ex.PW1/6. It is reflected from this noting at point 'A' that Arbitration Clause should be the sole discretion of TRIFED, it should be referred to legal advisor for comments, a bank guarantee from the agent or a reasonable cash security should be asked for. It has been further observed vide this noting given by PW-1 that the scheme appears to undergo losses but if the same can be compensated by the Government of India, as per proposal and letter submitted by ED, TRIFED may go ahead. It is reflected from the careful perusal of this CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 47 of 126 note dated 22.10.1990 under signature of PW-1 A.K. Kaul, that A-1 (since deceased) has marked it to GM (C-1) by mentioning as 'please comment'. This noting is Ex.PW1/7. It has been further mentioned at point X of noting exhibited as Ex.PW1/7 that, 'MD may like to see the DO letter to Sh. V. K. Mishra, JS regarding procurement of paddy in the trible area of Assam before issue'. It has been further mentioned at point X-1 at noting Ex.PW1/7 that, 'discussed with MD'. Both these noting at X and X-1 on Ex.PW1/7 are under signature of A-1 (since deceased).
72.During cross-examination of this witness on behalf of A-2 Asong Singsit, it is stated categorically by PW-1 that in case MD is not available then he is required to delegate his power in writing to some other official of TRIFED, as per its bye-laws. It is further stated by PW-1, during his cross-examination that he has raised objections regarding the proposal but his objections were not taken into consideration. PW-1 has further stated that after the agreement in between TRIFED and contractor had arrived at, he had recommended for release for a further amount of Rs. 5 Lakhs only after submission of utilization certificate by the contractor.
73.Certain questions have been put on behalf of A-2 Asong Singsit during cross-examination of PW-1 that there was a meeting CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 48 of 126 between the then MD Priya Prakash and Chief Minister of Assam on 17.11.1990 regarding procurement scheme for which PW-1 expressed his ignorance. Besides this no material contradiction has emerged from the cross-examination of PW-1. Therefore, in my considered opinion whatever, PW1 has stated which is based upon documentary evidence, stands established that despite certain objections raised by him, the agreement with contractor i.e. M/s Mech Enterprises was considered with certain relaxations contrary to objections of PW-1 under signature of A-2 Asong Singsit and A-1 (since deceased).
74.Certain facts narrated by PW-1 pertaining to Ex.PW1/5 and Ex.PW1/6 have been corroborated by PW-21 Jaimala Guwalani, who was PA, TRIFED, and who has stated that these notings Ex.PW1/5 and Ex.PW1/6 were marked to GM (C-2), however, it does not bear the signature of S. M. Singh, who was the then GM (C-2). It is important to mention here as reflected from the document itself that this noting bears the signature of A-1 (since deceased).
75.PW- 5 Amit Bhatnagar is attesting witness to agreement dated 28.11.1990. The next important witness examined by prosecution is PW-10 A. P. Singh, who was the then Resident Commissioner, New Delhi in the year 1990. It is stated that Managing Director, TRIFED had requested for a meeting with CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 49 of 126 the then Chief Minister, Assam which was arranged in Assam Bhawan, New Delhi. A wireless message dated 20.11.1990 was sent in this regard which is Ex.PW10/1 (Part of D-261). There is another telex message dated 15.11.1990, given by PW-10 to Secretary, Assam which is Ex.PW10/3 (Part of D-261). It is stated by this witness that in the meeting, the proposal of TRIFED was in principal agreed by Chief Minister of Assam that TRIFED can be involved in procurement of produce from the farmers and further coordination required in between State Government officials and local agencies to work out the modalities of procurement, however, no assurance was given by the Chief Minister of Assam. Draft minutes of the meeting dated 17.11.1990 are marked as Ex.PW10/PX. It is stated by PW-10 that till he remained Resident Commissioner up till 1991, he did not receive any message of confirmation of those messages. This witness has not been cross-examined from the side of A-2, A-3 and A-4.
76.It is reflected from careful perusal of testimony of PW-10 which is unrebutted and undisputed qua A-2, A-3 and A-4 as no cross- examination has been done from their side, controverting the fact that till 17.11.1990 the proposal of TRIFED for procurement of paddy etc from tribal areas to be done through contractor was not finally approved.
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77.Next important witness examined by prosecution is PW - 34 Sh.Mohd. Suhaib s/o late Sh. Mazhar Hasan who has deposed that he joined TRIFED in 1989 as Assistant Manager at Head Office Delhi. PW -34 deposed that TRIFED had procured wheat from UPSFECC under price support scheme and there was an agreement between TRIFED and UPSFECC and certain advances were released to UPSFECC to undertake the procurement. The procurement was from tribal area only and it was as an agent of FCI and as per normal practice there used to be no security or bank guarantee in case of any agreement with the State Federation. He further deposed that TRIFED used to seek the refund for the unutilized advance given to State Federation along with the interest and the decision making authority in TRIFED was Managing Director.
78.After looking at the noting contained in file (D-5) exhibited as Ex.PW1/4 he deposed that this file/note is about appointment of M/s MECH Enterprises for procurement of paddy and mustard seeds. However, the said note does not indicate that any quotations were called or that whether any state agency was approached and the note is regarding direct appointment of M/s MECH Enterprises as procurement agency which is in deviation of standard norms. He further deposed that this note was initiated by A. Singsit on 15.10.1990 bearing his signatures at point 'A' and was approved by V.S. Jafa, Executive Director CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 51 of 126 after seeking initial clarification vide approval at page N/14 exhibited as Ex.PW1/6. After looking at agreement between TRIFED and M/s MECH Enterprises exhibited as Ex.PW1/8 (D-12) he deposed that there is no mention about the purchase price in said agreement. He also deposed that as per this agreement in clause no. 9, it has been stipulated that TRIFED will pay overhead charges to the agent on actual basis though it will be paid Rs.31.27 by FCI. However, since TRIFED was acting as agent of FCI, TRIFED could only reimburse the overhead expenses to the procurement agent as per payment from FCI and the said stipulation appearing in clause-9 was improper. He further deposed that this agreement was signed by A. Singsit on behalf of TRIFED as GM (I&M) whereas it should have been signed by GM (Commercial). He also deposed that there are no witnesses on behalf of TRIFED as the requisite space is left blank. He further deposed that the agreement is on plain paper instead of non-judicial stamp paper and does not mention of releasing advance to procurement agent whereas it was released to such agent by TRIFED. He also pointed out the fact that the agreement also does not mention about seeking bank guarantee or performance guarantee.
79.PW -34 after going through the note dated 25.1.91 written by him deposed that the copy of agreement for procurement of mustard seed was sent to Zonal Manager Guwahati and the note CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 52 of 126 bears his signature at point 'A' and exhibited as Ex.PW34/A (D-
8). PW-34 after going through the agreement exhibited as Ex.PW1/12 entered into between TRIFED and M/s Mech Enterprises for procurement of mustard seeds deposed that this was same agreement which was signed by TRIFED and M/s Mech Enterprises.
80.It is stated by PW-34 that after perusing the copy of telex exhibited as Ex.PW34/B (D-37) received from Kamlesh Chandra, Zonal Manager, Guwahati addressed to V.S.Jafa, Executive Director dated 01.02.1991 that was relating to procurement of mustard seeds. Vide this letter V.S. Jafa had ordered to release 1.70 Crores to Zonal Manager, Guwahati for procurement. This order was marked to PW-34, as well.
81. After going through the office copy of letter dated 05.02.1991 exhibited as Ex.PW34/C (D-35) which signed by PW-34, he has stated that it is pertaining to sending of Rs.85 lacs to Kamlesh Chandra for procurement of mustard seeds, by way of demand draft. PW-34 after going through the note dated 02.02.1991 available in file D-31 regarding funds requirement amounting to Rs.1.70 Crores for procurement of mustard seed through M/s Mech Enterprises exhibited as Ex.PW34/D (D-31) deposed that it was agreed in principle by Managing Director on 02.02.1991 already exhibited as Ex.PW11/6 for Rs. 85 lacs on installment.
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82.PW -34 after seeing the note dated 02.05.1991 exhibited as Ex.PW34/E (part of D-31)regarding deficit incurred by TRIFED under price support from Ministry of Welfare deposed that a draft letter was put up by him through this office note for approval to ED(G) Sh. K. P. Rao.
83.PW-34 further deposed that ED(G) Sh. K. P. Rao had raised some query regarding procurement of mustard seeds on the issues raised in the note dated 21.05.1991 exhibited as Ex.PW34/F (part of D-31) and in reference to a query PW -34 initiated note dated 10.06.1991. He further deposed that a letter was sent to Deputy Secretary on 12.06.1991 by the Executive Director, K. P. Rao which is exhibited as Ex.PW11/3.
84.PW -34 after going through the TRIFED file D-265 regarding M/s Mech Enterprises wherein on page 1/N to 4/N, a note was initiated by him as per details communicated by Sh.A.D. Mishra, Manager Zonal Office Guwahati regarding details of procurement and total value of the procurement in relation to the aforesaid two agreements with M/s Mech Enterprises. The aspect regarding advances released to M/s Mech Enterprises was dealt with Special Auditor Love Bhatia & Associates, Chartered Accountant. PW 34 further deposed that the advance released to said M/s Mech Enterprises was substantially higher CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 54 of 126 than the value of article procured and over head bills were also required to be certified/verified by concerned Deputy Commissioner but it was not got done so with respect to the said procurement. No supporting material regarding transportation etc. were submitted and if submitted these were on plain papers and were not in the shape of proper bills. His note in this regard is Ex. PW 34/G (D-265). The note was eventually marked to the then MD Smt. Priya Prakash.
85.During cross-examination of PW-34 on behalf of A-2 Asong Singsit, it is stated by the witness that previous Managing Director, TRIFED was S. K. Chauhan, who got transferred and the next Managing Director, Ms.Priya Prakash had to join and during this period A-1 (since deceased), who was working as Executive Director was Head of the Organization being the senior most officer.
It is important to mention here that Ex.PW1/4 dated 15.10.19990 which is 'OPERATION SAP-ASSAM' (D-5, running into 11 pages) has been prepared by and bearing signature of A-2 Asong Singsit. This SAP has been referred to ED/MD, however, the word MD has been cancelled by black colour pen. It is further reflected from the careful perusal of this document that only ED has been ticked and it is bearing the endorsement and note in writing made by A-1 (since deceased) dated 16.10.1990 which is exhibited as CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 55 of 126 Ex.PW1/5 and vide this noting it has been directed by A-1 (since deceased) to be considered by GM-I and II and GM (C-II). Vide this note Ex.PW1/4, as per record, name of M/s Mech Enterprises has been recommended to be approved by mentioning at its internal page No. 2 that 'M/s Mech Enterprises, Kucheria Bhawan, Tokobari, Guwahati may be appointed as agent of TRIFED for procurement of paddy and mustard seed'.
86.During his cross-examination PW-34 has been put a suggestion as to when proposal marked by A-2 Asong Singsit to Executive Director/Managing Director then someone has deleted the word Managing Director later on. This suggestion has been denied for which PW-34 has stated that he do not agree. It is further stated by PW-34 that when Ms. Priya Prakash had joined as MD, procurement of paddy was over. It is reflected from the cross- examination of PW-34 that no material contradiction has emerged. Thus, whatever he has stated during his examination- in-chief stands corroborated. It is also a matter of record that Operation SAP Assam (D-5, running into 11 pages) have not only been filed and relied upon by prosecution but are part of departmental proceedings against A-2 Asong Singsit and A-2 Asong Singsit himself had called such record pertaining to departmental inquiry in which copies of these SAPs are placed exhibited as Ex.D2W2/A in his defence evidence.
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87. Next important witness to be discussed thereafter is PW-48 Ms.Priya Prakash, MD, TRIFED. As per record, Ms. Priya Prakash had joined as MD in the year 1990. It is stated by her that she remained MD for about 10 months. A-1 (since deceased) was Executive Director, TRIFED at that time. PW- 48 has stated that before she joined as MD most of the things have already been decided by A-1 (since deceased) who was the next senior most and practically the Incharge of TRIFED. Before PW-48 had joined there was no Managing Director for some time. PW-48 has referred Minutes of Meeting dated 17.11.1990, marked as 'Mark PW36/DC' (D-46). It is stated that in this meeting it was discussed that TRIFED would procure paddy and other articles from tribal areas of Assam on behalf of FCI. PW-48 was shown notings contained in file D-5 exhibited as Ex.PW1/4, Ex.PW1/5, Ex.PW1/6 and Ex.PW1/7 and her attention was drawn at page No. 14 of file D-5 mentioned at point No. 'X-1' made by A-1 (since deceased) wherein it is mentioned that 'matter be discussed with Managing Director'. It is however stated by PW-48 the then Managing Director, TRIFED that A-1 (since deceased) had never discussed anything in that regard with her nor it was placed before her. PW-48 has further expressed her ignorance about agreement Ex.PW1/8 (D-12) which is dated 28.11.1990 for procurement of paddy and agreement exhibited as CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 57 of 126 Ex.PW1/12 (D-20) dated 21.01.1991 for procurement of mustard seed. It is further stated by PW-48, the then Managing Director that she had never delegated her power to A-1 (since deceased).
88.This witness was found resiling from her statement given under Section 161 Cr.P.C before the IO, therefore, she was cross- examined on certain aspects by Ld. Sr. PP for CBI. It is stated by PW-48 that on the day of her examination she was more than 83 years of age, therefore, she was not able to recollect all the facts properly. PW-48 categorically stated that she had never instructed A-1 (since deceased) to appoint any private agent.
89.During her cross-examination PW-48 denied the suggestion that she had asked A-1 (since deceased) to prepare the agreement or she was aware that procurement of paddy and seeds was through M/s Mech Enterprises or she had ever met with A-5 (since deceased). PW-11 K. P. Rao, DGM, TRIFED is a relevant witness in this regard, who has stated that he was posted as Executive Director, Head office New Delhi besides him A-1 (since deceased) was also Executive Director at that time. PW- 11 has stated that vide letter dated 19.04.1991, written by Shyam S. Aggarwal, Deputy Secretary, Government of India to MD TRIFED pertaining to deficit incurred by TRIFED. This letter was marked to PW-11 by PW-48 Ms. Priya Prakash, CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 58 of 126 Managing Director, TRIFED which is exhibited as Ex.PW11/1 (part of D-19).
90.There is another letter dated 12.06.1991 exhibited as Ex.PW11/2 (part of D-19) addressed to Sh.Kamlesh Chandra (since deceased) regarding procurement of mustard seed. PW- 11 has stated that there is a note dated 20.11.1990, through which procurement of paddy from tribals of Assam was made by A-2 Asong Singsit (D-10) which is Ex.PW11/7. This note has been approved by A-1 (since deceased). There is another note dated 29.11.1990 exhibited as Ex.PW11/8 (D-24) under signature of A-2 Asong Singsit which again has been approved by A-1 (since deceased).
91.It is reflected from careful perusal of all the documents relied upon by PW-11 that it was Managing Director or his delegate, who was only authorised to grant procurement of paddy and seeds by private agent. From the cross-examination of PW-11 no material contradiction has emerged. During his cross- examination PW-11 has categorically stated that Executive Director was supposed to follow the instructions given by Managing Director.
92.The next important witness examined by prosecution regarding role of A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra is CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 59 of 126 PW-12 and relevant document is D-264 exhibited as Ex.PW12/1 which is minutes relating to procurement of rice/ paddy. PW-12 is N. Kurbah, who was regional manager FCI in Guwahati, Assam in the year 1990-1991 it is stated by PW-12 that FCI appointed TRIFED as an agent for procument of paddy from tribal areas of Assam which is mentioned in minutes of meeting held on 06.12.1990 which is marked as 'Mark PW12/PX'. From the careful perusal of this document marked as Mark PW12/PX which is dated 06.12.1990 it is reflected that it has been under the signature of Commissioner and Secretary to Government of Assam, Food and Civil Supply and it is mentioned vide this minutes of meeeting dated 06.12.1990 that after discussion in the meeting under the Chairmanship of Commissioner and Secretary, Government of Assam held on 06.12.1990 with senior officials of FCI, statfed and TRIFED has been discussed and consensus decision has been made that TRIFED would operate as agent of FCI for procurement of paddy under Price Support Measure in tribal areas. There is another letter dated 13.12.1990 which is marked as 'Mark PW12/PX1'. It is reflected from the careful persual of letter dated 13.12.1990 written on behalf of Deputy Secretary, Government of Assam addressed to Executive Director, TRIFED alleging that Government of Assam in Food and Civil Supplies Department has agreed to allow TRIFED to procure paddy under Price Support Measure in tribal areas as well as the hill areas of state CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 60 of 126 during 1990-1991 kharif year.
93.It is important to mention here that this fact mentioned in letters dated 06.12.1990 and 13.12.1990 is a documentary evidence which has neither being disputed nor has been controverted as being matter of record. It is further important to mention here that 'OPERATION SAP - ASSAM' which are under signature of A-2 Asong Singsit dated 15.10.1990, 17.10.1990, 18.10.1990 etc. are prior to TRIFED being declared as authorised for procurement of paddy and seeds. In other words, prior to 13.12.1990 when this decision had been taken in the meeting of 06.12.1990 was communicated officially, the TRIFED was not authorised to enter into any contract on its behalf through any of its official.
94.It is needless to say that A-2 Asong Singsit, General Manager (Commercial), TRIFED Delhi and A-3 Ashutosh Dutt Mishra have brought on record two and one witnesses in their defence, however, they have brought on record the documents pertaining minutes of meeting carried out by TRIFED referred as Ex.D2W1/1 to Ex.D2W1/35 and record pertaining to departmental enquiry conducted against A-2 Asong Singsit. Thus, in their defence evidence nothing contrary to the facts mentioned pertaining to 'OPERATION SAP - ASSAM' CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 61 of 126 exhibited as Ex.PW1/4, Ex.PW1/5, Ex.PW1/6 (all in file D-5), Ex.PW1/8 (D-12) and Ex.PW1/12 (D-20) which is agreement dated 21.01.1991 has been brought on record from the side of accused persons. Thus, all these documentary evidence pertaining to 'OPERATION SAP - ASSAM' that they were prepared under supervision and control of A-1 (since deceased) and under the signature of A-2 Asong Singsit, remain uncontroverted.
95.Now, coming to the role of A-3 Ashutosh Dutt Mishra as alleged by the prosecution that he was actively involved in the conspiracy hatched by A-2 Asong Singsit in connivance with A- 1 (since deceased) and A-4 Krishan Lal Aggarwal and A-5 (since deceased). As per allegation, A-3 Ashutosh Dutt Mishra is stated to have played an active role in clearing the bills, acceptance of challans furnished by and on behalf of M/s Mech Enterprises. In this regard, PW-12 N. Kurbah has stated that he was a witness to the meeting held on 06.12.1990, as he had attended the same. PW-12 has also seen the letter dated 13.12.1990 marked as 'Mark PW12/PX-1' and letter dated 18.12.1990 addressed to General Manager, TRIFED which is under his signature. This letter is exhibited as Ex.PW12/2.
96.PW-5 Amit Bhatnagar have stated that he was Senior Assitant Manager in the year 1990 - 1991 and hand written note dated CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 62 of 126 19.01.1991, exhibited as Ex.PW5/1 (D-34) is under his signature. As per record there is agreement dated 21.01.1991, exhibited as Ex.PW1/12, which is pertaining to mustard seeds to be purchased and delivered by M/s Mech Enterprises. This agreement bears the signature of PW-5 as witness no. 1. It is reflected from the perusal of this document exhibited as Ex.PW1/12 that it is also bearing signature of A-5 (since deceased) on behalf of M/s Mech Enterprises.
97. PW-6 is Ravinder Kumar who was posted as Joint Commercial Assistant at TRIFED, New Delhi. This witness has stated that during this period he had gone to Guwahati, Assam. There was an office order dated 29.11.1990 exhibited as Ex.PW6/1 (D-44). Vide which PW-6 along with other officials of TRIFED had gone to Guwahati for procurement of paddy. PW-6 is stated to have been deputed in FCI Godown, Narainpur, District- Lakhimpur, Assam. It is further stated by PW6 that Incharge of TRIFED in Narainpur was A-3 Ashutosh Dutt Mishra. PW-6 was directed to prepare challan of paddy received in FCI Godown. It is stated that by PW-6 that all the paddies has to be entered into FCI Godown which were to be checked and weighted then challans were to be prepared. PW-6 has categorically stated that A-3 Ashutosh Dutt Mishra had not given any instruction that PW-6 has to verify procurement location of paddy. PW-6 has stated that letter dated 21.01.1991, CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 63 of 126 exhibited as Ex.PW6/2 (D-9) has been written and signed under the handwriting of A-3 Ashutosh Dutt Mishra. This letter is addressed to TRIFED in which A-3 Ashutosh Dutt Mishra has been assuring TRIFED that everything pertaining to collection of paddy is going on smoothly and is under control. Vide this letter A-3 Ashutosh Dutt Mishra has expressed his concern for not releasing 85% payment. One fact mentioned at internal page No.2 of this letter exhibited as Ex.PW6/2 is relevant to mention here which is very interesting vide which it is mentioned that though the paddy is collected from Bihupuria but it has been shown as Junai.
98.PW-6 has further stated that a number of challans mentioned as Ex.PW6/4 (colly.) (part of D-210) are prepared by him which are from dates 21.01.1991 to 18.02.1991. It is stated by PW-6 that he mentioned the place 'Junai' over challans at point 'X' and truck numbers on the challan on the basis of challans brought by the agent. However, these particulars were not personally verified. PW-6 has further stated that his wife Pushpa Devi was also posted there who had received the details of delivery challan.
99.The next witness examined by prosecution is PW-7 Pushpa Devi, who is wife of PW-6. It is stated that she was posted as typist-cum-clerk at TRIFED, New Delhi and was deputed with CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 64 of 126 TRIFED for paddy procurement at Guwahati, Assam. Order dated 01.12.1990, is exhibited as Ex.PW7/1 which is under the signature of A-2 Asong Singsit. PW-7 used to count the bags and weight the bags and information was to be conveyed to the office. PW-7 has prepared a number of challans exhibited as Ex.PW7/2 and Ex.PW7/4.
100. It is important to mention here that during examination of PW-7 she was found not supporting the entire story of proseuction on the point of allegation of issuance of instructions by A-3 Ashutosh Dutt Mishra and during cross-examination on this point by Ld. Special PP for CBI, she said nothing, however, during her cross-examination on behalf of A-3 Ashutosh Dutt Mishra, she has been given a relevant suggestion which is important to mention here. Volunteered part of the suggestion is important to note.
"It is wrong to suggest that Ashutosh Dutt Mishra had not given any instruction. Vol. He used to visit the said godown off and on and used to oversee the work."
It is reflected from the cross-examination of PW-7 that though she was not able to recall the facts pertaining to instructions issued by A-3 Ashutosh Dutt Mishra, as reflected from her examination-in-chief, however, a contrary suggestion given by A-3 Ashutosh Dutt Mishra himself has corroborated this fact that A-3 Ashutosh Dutt Mishra was having supervision and CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 65 of 126 control and used to issue instructions to the subordinate officials regarding preparations of challans/bills for procurement of paddy.
101. PW-8 V.A.Sudhakaran has turned hostile and it is reflected from his examination-in-chief that it is pertaining to Kamlesh Chandra (since deceased), who was named as one of the accused in FIR and who expired during investigation. PW-9 Sanjay Srivastav had categorically stated that A-3 Ashutosh Dutt Mishra was Incharge of Head Office Guwahati for procurement of paddy. PW-9 was deputed at Tangla and thereafter at District Lakhimpur. PW- 9 has further corroborated the fact that PW-6 Ravinder Kumar, Kom and Pushpa Devi, who is PW-7 were also in the center at Lakhimpur. PW-9 has stated that delivery challan no. 528, 540 and 542 are in the handwriting of PW-6 which bear signature of PW-9 as well. These delivery challans are exhibited as Ex.PW9/1 to Ex.PW9/3, respectively. PW-9 has further stated that truck numbers on the challans were written by PW-6 Ravinder Kumar. PW-6 has stated as mentioned above that he used to mention all the details as per the instructions of A-3 Ashutosh Dutt Mishra.
102. PW- 29 M. C. Baishya is another witness examined by prosecution. He was Assistant Manager (Accounts) at Regional CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 66 of 126 Office FCI, Guwahati. This witness handed over the certified copies of cash book (receipt and payment) of FCI, RO, Guwahati for the period 31.12.1990 to 18.06.1991. Certified copy of cash book is exhibited as Ex.PW29/B (D-223). This witness also handed over Inter Office General Account (IOG), Sub Ledger of Regional Office, FCI, Guwahati. This witness also handed over the copy of vouchers which are contained in a file exhibited as Ex.PW29/F (D-278A). This witness has not been cross-examined by any of the accused persons, therefore, whatever documents this witness has submitted has not been disputed. All these vouchers in file D-278 and D-278 A are the vouchers for advances released in favour of M/s Mech Enterprises.
103. The next witness examined by prosecution is PW-31 Virender Kumar Tiwari, who was Senior Assistant, TRIFED at that time. This witness has stated that vide seizure memo dated 30.07.1997, mark PW-31/A (D-255) have been handed over by Sh. B. B. Burari, the then CVO, TRIFED to CBI. These files, as per record contains the details regarding procurement of mustard seeds, paddy by M/s Mech Enterprises.
104. The next witness examined by prosecution is PW-33 Sushil Ahuja, who was Assistant Manager at Mahur, under Zonal Office, Guwahati. The then, Zonal Manager, TRIFED, CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 67 of 126 Guwahati was Kamlesh Chandra (since deceased). It is stated by PW-33 that, as per instructions of Kamlesh Chandra (since deceased), he proceeded to Langhin Center to receive the paddy procured by M/s Mech Enterprises and to deliver the same to FCI.
105. Next witness examined by prosecution is PW-37 V. Ramanathan who has deposed that he joined TRIFED in February, 1988 as Management Trainee and during 1990-91, was posted as Project Coordinator, Jawa Cironella Plantation, Phuloni Village, Karbi Anglong District. He further deposed that during that year TRIFED was procuring paddy at a minimum support price at two places, i.e. Longhnin and Howrah Ghat Center. N.S. Rao, Asstt. Manager, Sushil Ahuja, Asstt. Manager and T.S.A. Singson, JE were Incharge of paddy procurement in Karbi Anglong District. He further deposed that N.S. Rao proceeded on leave, PW 37 was directed to supervise his center as additional charge. He had identified letter dated 20.12.1990, Ex. PW 37/A (D-214 page 89) vide which Kamlesh Chandra authorised N. S. Rao and T.S.A.Singson for opening of bank account in SBI Howrah Ghat, Assam, which bears the signature of Kamlesh Chandra.
106. He further deposed that another letter of same date exhibited as Ex. PW 37/B (D-214 page 87) was issued by CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 68 of 126 Kamlesh Chandra authorising N.S. Rao and T. S. A. Singson for opening saving bank account in State Bank of India Diphu, Assam. He also identified another letter dated 07.01.1991, Ex.PW37/C (D-214 Page 24) issued by Kamlesh Chandra authorising Sushil Ahuja and T.S.A.Singson for opening saving bank account in State Bank of India Nagaon, Assam and copy of letter bears sign impression of Kamlesh Chandra at point 'A'. It also bears the endorsement of Sushil Ahuja at point 'B' regard its delivery to SBI Nagaon.
107. PW 37 had also seen carbon copy of delivery challans bearing no. 702 dated 29.01.91 and 703 dated 22.02.91 (D-51) Ex. PW 37/D and 37/E which were written and signed by him and it bears his signature at points 'A'. As per challan nos. 702, 240.80 quintal paddy was received from Onkran, Howrah Ghat by Howrah Ghat LAMPS which as per challan nos. 703, 336 qunital paddy was received from Hatipara village Howrah Ghat was delivered to ASWC Godwn, Howrah Ghat. He further deposed that he had filled up the details in the said two challans on the basis of inputs received from Mr.Singson. He further stated that he did not personally verify any particular as such. He further deposed that the material in question had been dispatched by LAMPS (Large Area Multi Purpose Corporation Society) to TRIFED. He had also identified file D-52 wherein the said two challans are also found in statement of bill CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 69 of 126 available at page no. 3 at point A and B (now marked) and Mr.Singson had prepared said statement which is now marked as Mark PW 37/F.
108. He had also seen letter dated 21.3.1991 written by him to accused Krishan Mech. vide which he had informed that TRIFED has received 610.75 Quintal of common variety uncleaned paddy from Howrah Ghat LAMPS and after cleaning 576.80 Quintal delivered to Assam State Warehousing Corporation. Vide the said letter PW -37 also asked through this letter to collect balance amount of Rs.2353.25p from Howrah Ghat LAMPS, the letter is exhibited as Ex.PW37/G (D-54).
109. PW-37 had also identified the receipt dated 03.02.1991 exhibited as Ex.PW37/H available in file D-214 at page No. 58 vide which he received Rs.85,000/- from M/s Mech Enterprises for paddy procurement operation at Karbi Anglong. He further deposed that out of Rs. 50,000/- was given to T.S.A.Singson vide letter dated 07.02.1991 exhibited as Ex.PW37/I. It also bears the endorsement of T.S.A.Singson regarding receipt of Rs.50,000/- at point 'B'. The said Rs.50,000/- was deposited by T.S.A.Singson to Center LAMPS as advance towards supply of paddy. The debit voucher prepared in this regard is available on page 60 of D-214 and bearing the signature of T.S.A.Singson CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 70 of 126 at point 'A' and exhibited as Ex.PW37/J. Rs.30,000/- was returned to the agent of M/s Mech Enterprises on 22.02.1991. The receipt is available at page 65 of D-214 and letter is marked as Mark PW 37/K.
110. PW-37 had also identified D-53 which is copy of details of paddy procurement undertaken by TRIFED in Karbi Anglong District under price support scheme which was prepared by T. S. A. Singson (carbon copy is part of D-47) vide this statement exhibited as Ex.PW 37/L total quantity procured from aforesaid district was 3878.57 Quintals. This witness has not been cross-examined by any of the accused persons.
111. Next witness examined by prosecution is PW-46 T. S. A. Singson, S/o Sh. Zangpu Singson, TRIFED RO Guwahati deposed that during 1990-91 he was posted as Junior Engineer, TRIFED, Guwahati and Kamlesh Chandra was the Zonal Manager. He was directed by Kamlesh Chandra, the then ZM to proceed Langhin procurement center for procurement of paddy from the surrounding villages as an agent of FCI and remained there for one or two months. He further deposed that paddy was received from agent M/s Mech Enterprises and there was no definite instructions to see as to from where such paddy has been procured. He further deposed that his duty hours used to be between 9 AM to 6 PM and during such period if any CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 71 of 126 paddy used to be brought, he used to see the truck physically used for the transportation and also used to note the number of truck on the challan. If any truck used to come beyond duty hours then he used to mention the truck number after ascertaining from the agent M/s Mech Enterprises. After seeking the statement of bills regarding acceptance of paddy at Langhin Center witness stated that it was prepared by him after going through the challans exhibited as Ex.PW46/A (D-52). After seeing the letter written by Kamlesh Chandra, the then TRIFED to SBI Howraghat regarding opening of Bank Account exhibited as Ex.PW46/B (D-214 page 91) witness deposed that pursuant to said letter, he along with N.S.Rao were made the authorised signatories in relation to the said bank account. Witness also deposed that he had seen K.K.Mech at Langhin center. He came there to look after the procurement of paddy. PW-46 further deposed that he was instructed to sell mustard seeds to Gopal Oil Industries by the Regional Manager in pursuant to an agreement between TRIFED and Gopal Oil Industries at Barpeta Road. The mustard seeds was delivered to the party and a stock register was maintained by godown Incharge, T.Haokip. After seeking the file D-212 witness states that it contains statement having details of cheque issued to party which is Ex.PW46/C (6 pages) (D-212). The witness further states that it also contains four debit vouchers in the name of M/s Mech Enterprises for amount of Rs.5 Lakhs, Rs.3 CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 72 of 126 Lakhs, Rs.4 Lakhs and Rs. 3 Lakhs bearing the signatures of A.D.Mishra exhibited as Ex.PW46/D (colly.) (D-212).
112. The witness also identifies letter written by him to the District Manger, FCI Nagaon, Assam whereby he had informed regarding the procurement by TRIFED at Langin and Howrah Ghat Center in Karbi Anglong of Assam along with the statement showing the details about the quantity, the said letter along with statement exhibited as Ex.PW 46/E (4 pages) (part of D-214). The witness also identifies letter dated 14.3.1991 exhibited as Ex. PW 46/F (part of D-214) written by him to FCI informing them regarding closing of procurement of paddy.
113. This witness has not been cross-examined by accused persons except one question asked by and on behalf of A-3 Ashutosh Dutt Mishra that A-3 Ashutosh Dutt Mishra had not signed Ex.PW46/C (D-212) in his presence. The document exhibited as Ex.PW-46/C is the statement regarding details of cheques vide which money has been transferred to M/s Mech Enterprises. There is no question put to the witness alleging that no such money, as alleged, has been transferred to M/s Mech Enterprises. Thus, in other words receiving of payment by and on behalf of M/s Mech Enterprises has not been disputed which is done under supervision and control of A-3 Ashutosh Dutt Mishra and as per the directions of A-2 Asong Singsit and A-1 CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 73 of 126 (since deceased).
114. PW-36 is the IO of the case, Ram Avtar Yadav. It is a matter of record that the case was initially assigned to V.K.Sharma, then to Ram Avtar Yadav and thereafter to PW-42 Raj Pal Singh, who had filed the charge-sheet/final report. It is stated by PW-36 that FIR in the present case was registered on 23.07.1997 which is exhibited as Ex.PW36/A (D-1). The investigation of the present case except filing of charge-sheet and recording of statement of one witness Thomas Mathew was done by PW-36 Ram Avtar Yadav. This witness has stated in details and corroborated collection of all the evidence which is stated by the above mentioned witnesses. This witness has stated that M/s Mech Enterprises was given advance of Rs.61,75,000/- towards agreement for procurement of paddy from tribal areas of Assam and Rs.1,18,00,000/- for procement of mustard seeds from the tribal areas of Assam without obtaining any bank gaurantee or security. It is categorically stated that most of the collection by M/s Mech Enterprises has not been from tribal areas but paddy and seeds were procured from Marwadies like Radhey Shyam Rice Mill, Rann Singh Shekhawat, Madan Sharma and Merchants of Ganga Nagar and Alwar for lesser amount and forged as well as filed exaggerated manipulated bills showing utilization of entire advance amount and thereby causing loss of Rs.50,00,000/- to TRIFED. It is CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 74 of 126 further stated by PW-36 that M/s Mech Enterprises had submitted bills for Rs.1,29,75,000/- and has not submitted any bill for balance amount of Rs.50,00,000/-. It is further stated by PW-36 that agreement dated 28.11.1990 was executed without approval of Managing Director of TRIFED despite having strong objections from G.M. (Finance) A.K.Kaul, who has been examined as PW-1. It is stated that the agreement regarding supply of niger seed was oral. It is further stated by PW-36 that bank garuntee has also not been obtained from M/s Mech Enterprises at the instance of A-2 Asong Singsit and A-1 (since deceased). A-3 Ashutosh Dutt Mishra was the Incharge of Narainpur Center, who sent two letters to GM/ Zonal Manager, TRIFED, Guwahati that under his guidance paddy was being procured from local merchants, marwaries etc. whereas as per the record it was being shown to have been procured from Junai. It is further stated that advance was given to M/s Mech Enterprises without any clause of undertaking of utilization of funds.
115. During his cross-examination, PW-36 has stated that he did not come across any evidence showing that A-1 (since deceased) had received any pecuniary advantage or any money was transferred by M/s Mech Enterprises in favour of A-1 (since deceased). It is stated by PW-36/IO that as per note-sheet dated 15.10.1990, exhibited as Ex.PW1/4 proposal has been CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 75 of 126 approved as mentioned at point A which is separately mentioned as Ex.PW1/5. It is a matter of record that both these notings and approval of proposal are under signature of A-1 (since deceased) and A-2 Asong Singsit. There is another note-sheet dated 20.11.1990 exhibited as Ex.PW11/8 (D-5) which, again, as per record approved by A-1 (since deceased) and A-2 Asong Singsit, General Manager (Commercial), TRIFED Delhi.
116. With regard to release of payment of Rs.85 Lakhs on 02.02.1991. It is stated by IO that, as per record, it was as per the order of MD, Ms. Priya Prakash, however, Kamlesh Chandra (since deceased), General Manager, had sent a letter dated 14.12.1990 alleging that there was a pressure from headquarter to release such payment without bank guarantee. IO has further stated that he had collected the bye-laws of TRIFED which says that MD has to authorise ED in writing which is not in the present case. This fact is corroborated with the similar statement of PW-48 Ms. Priya Prakash, who has categorically stated that she had not authorised A-1 (since deceased) in writing.
117. In this regard, IO/PW-36 has referred para No. 26.3 of TRIFED bye-laws that MD was empowered to take any decision for conducting the business of TRIFED and to exercise control over the administration. IO has further CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 76 of 126 corroborated the fact that as per meeting dated 17.11.1990 in between Ms. Priya Prakash, Managing Director, Chief Minister of Assam and A.P.Singh, Resident Commissioner of Assam it was proposed by MD of TRIFED that TRIFED be made agent of FCI for procurement of paddy, mustard and niger seed from tribal areas of Assam. This fact is corroborated from the testimonies of PW-48 Ms.Priya Prakash and PW-10 A.P.Singh, Resident Comissioner of Assam. PW-36/IO has further corroborated the fact that as per noting dated 22.10.1990, the clause pertaining to bank guarantee was required to be, this fact is also corroborated from the testimony of PW-1 A. K. Kaul, where PW-1 stated that he had raised objection regarding non inclusion of clause of bank garuntee and release of advance payment to agent, which is mentioned in noting of Ex.PW1/D-1 and Ex.PW1/D-2.
118. It is further stated by PW-36 that though there was noting of A-2 Asong Singsit as per exhibit Ex.PW1/4, vide which he had suggested for legal vetting of agreement by legal advisor, however, no such legal vetting or seeking legal advise was done by A-2 Asong Singsit and though the noting of proposal was to be placed before Executive Director and Managing Director, however, it has not been placed before Managing Director. This fact has been stated by other prosecution witnesses like PW-
CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 77 of 126 1 Sh.A.K.Kaul and PW-48 Ms. Priya Prakash.
119. It is further stated by PW-36 that there are two letters exhibited as Ex.PW6/2 and Mark PW6/DX-1(D-9) of A-3 Ashutosh Dutt Mishra vide which it is reflected that paddy was procured from Marwadies and nearby places whereas it was shown to have been collected from Junai. This statement corroborates with the testimony of PW-6, who has categorically stated about these two letters Ex.PW6/2 and Mark PW6/DX-1 (D-9) wherein A-3 Ashutosh Dutt Mishra has stated in his own handwriting addressed to TRIFED, addressing to TRIFED that paddies are procured locally, however, it is being shown as collected from Junai.
120. Coming to the defence evidence led on behalf of A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra, it is reflected that two witnesses have been examined by A-2 Asong Singsit. D2W1 has brought on record the minutes of meeting including the record pertaining to the year 1990-1991 in which the agreement 28.11.1990 and 21.01.1991 is stated to have been entered into. The documentary evidence to this extent has already been brought on record which is discussed in above mentioned para. The another witness brought by A-2 Asong Singsit has brought on record the documents pertaining to the departmental inquiry initiated against him. This record contains CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 78 of 126 the document 'OPERATION SAP - ASSAM' which is found containing the events having taken place from September, 1990 to January, 1991. These documentary evidence which is mostly under the signature of A-2 Asong Singsit and A-1 (since deceased), A-5 (since deceased). PW-1 A.K.Kaul, PW-10 A.P.Singh, PW-11 K.P. Rao, PW-12 N. Kurbah, PW-21 Jaimala Guwalani and PW-48 Ms.Priya Prakash. There is only one witness brought by A-3 Ashutosh Dutt Mishra in his defence which is pertaining to his Annual Confidential Report (ACR). A-1 (since deceased) had examined nine witnesses in his defence, however, since he expired after framing of charge but before final arguments, therefore, in pursuance to his death proceedings against him stands abated vide order dated 16.03.2021. Therefore, these nine witnesses are not required to be discussed. From the careful perusal of the testimonies of all the defence witnesses it is, therefore, reflected that they have brought on record no new material in support of their contention but documents brought on record by them is in continuation and in furtherance of the record filed on behalf of IO along with charge-sheet. It is important to mention here that, 'OPERATION SAP - ASSAM' which is contained in file D-5 and brought on record by D2W1 and D2W2 is, therefore, not disputed. The evidence led on behalf of prosecution and accused persons is discussed in the light of entire background and ingredients of the relevant sections under which A-2 Asong CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 79 of 126 Singsit and A-3 Ashutosh Dutt Mishra have been charged with.
121. With regard to allegation under Prevention of Corruption Act, A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra have been charged with Section 13 (2) r/w 13 (1) d of Prevention of Corruption Act, 1988. As mentioned above, the first ingredient for 13 (1) (d) Prevention of Corruption Act that A-22 and A-3 are public servant is not disputed. Second ingredient required to be established by prosecution is that such public servant has misused and abused his official position. In this regard, the important role played in the entire incident is that of A-1 (since deceased). He was the Executive Director, TRIFED, the second senior most officer in TRIFED after Managing Director. It is not disputed, as nothing contrary has been brought on record by any of the accused person, that Managing Director being the senior most officer is empowered to control and supervise the functions of TRIFED as well as issue necessary orders/ directions. In this regard, IO/PW-36 has referred para 26.3 of TRIFED bye-laws and various other rules that Managing Director was empowered to take any decision for conducting business of TRIFED. The document Ex.PW1/10 (File D-11) are the bye-laws of TRIFED. As per bye-law 22.02.2012, General Body consisting of Directors, has the power to delegate to the officer of TRIFED. It is needless to say that such delegation has to be expressed and not implied. Rule 26 of bye-law lays down CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 80 of 126 the provision regarding Managing Director, who as per rule 26.2 shall be the Chief Executive Officer of TRIFED and as per rule 26.03.14 he may delegate all or any of the power vested in him to an employee of TRIFED. As per rule 26.3.3., Managing Director is empowered to take necessary steps to implement for purchase, sale, storage, processing of natural products, commodities, machineries and matters incidental thereto. Thus, in the entire bye-laws of TRIFED there is no mention of implied assumption of such powers by Executive Director or any officer below Managing Director.
122. PW-48 Ms. Priya Prakash, the then Managing Director has corroborated this fact. She has further stated that no direction in writing were issued to Executive Director delegating any power to enter into an agreement on behalf of TRIFED with third person, more particularly with agreement dated 28.11.1990.
123. The second allegation against accused persons are that A- 1 (since deceased), who was working in connivance with A-2 Asong Singsit, General Manager (Commercial), TRIFED Delhi and A-3 Ashutosh Dutt Mishra has recommended the name of M/s Mech Enterprises and its Directors A-5 Krishan Kumar Mech (since deceased). It is stated by the IO as well as one witness PW-47 B. C. Bardoloi that Krishan Kumar Mech, was CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 81 of 126 running a photo studio in Brahamputra Hotel during the year 1988 to 1990. PW-47 was working as Senior Accountant in this hotel at Guwahati. PW-47 has further stated that A-5 (since deceased) was a professional photographer.
124. From the testimony of PW-47, it is reflected that he was one of the employee of Krishan Kumar Mech. He could have say that Krishan Kumar Mech was running a firm namely M/s Mech Enterprises but he has not stated so. This witness PW-47 has not been cross-examined at all despite giving opportunity. Similar facts are stated by IO/PW-36. The allegation against A- 2 Asong Singsit and A-3 Ashutosh Dutt Mishra as well as A-1 (since deceased) are that Krishan Kumar Mech owner of M/s Mech Enterprises was not the competent person for procurement of paddy and mustard seeds, however, he being known to A-1 (since deceased) was recommended through A-1 (since deceased), A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra. There is a letter dated 01.09.1990 exhibited as Ex.PW1/3 written by A-2 Asong Singsit and addressed to M/s Mech Enterprises which reflects that A-2 Asong Singsit was in constant touch with Krishan Kumar Mech owner of M/s Mech Enterprises.
125. From various notes mentioned in 'OPERATION SAP- ASSAM' files D-3, D-4 and D-5 contain a number of CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 82 of 126 documents under signature of A-2 Asong Singsit and A-1 (since deceased). Important document out of these SAPs are exhibited as Ex.PW1/4, Ex.PW1/5, Ex.PW1/6 and Ex.PW1/7. The document Ex.PW-1/8 (D-12)is the draft agreement between TRIFED and M/s Mech Enterprises which is signed by A-2 Asong Singsit and A-1 (since deceased). It is a matter of record that the first agreement to procurement of paddy was signed on 28.11.1990.
126. Prosecution has brought on record by examining a number of witnesses mentioned above that till 28.11.1990. The proposal for allowing private person/agent for procurement of paddy and mustard seeds was under consideration as it was pending approval of Government of Assam. In other words, it was yet to be finally considered though the proposal was discussed in meeting dated 17.11.1990 marked as PW10/PX along with message Ex.PW10/1. There is one telex message dated 15.11.1990 given by PW-10 to Secretary(Supply), Assam. These facts are established by PW-10 A.P.Singh, Resident Commissioner. It is reflected from bare perusal of these documents exhibited as Ex.PW10/1 and Mark PW10/PX that the proposal that TRIFED should allow private person for procurement of paddy and seeds was under consideration till 17.11.1990. Another important document brought on record by prosecution is the noting dated 05.12.1990, exhibited as CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 83 of 126 Ex.PW1/D-1 and letter dated 13.12.1990 marked as 'Mark PW12/PX1' vide which A-1 (since deceased) is trying to persuade Government of Assam to allow TRIFED for the procurement activities vide its concurrence given on 06.12.1990 which is stated to have conveyed to TRIFED vide letter dated 13.12.1990 marked as 'Mark PW12/PX1' by Government of Assam.
127. These facts supported with uncontroverted documentary evidence reflects that till 13.12.1990 when the fact was communicated on behalf of Government of Assam that TRIFED is allowed to invite procurement, the TRIFED was not legally authorised to enter into any such agreement by allowing any private person like M/s Mech Enterprises or Krishan Kumar Mech, A-5 (since deceased) to procure paddy from tribal areas. Such agreement therefore, per se, in my considered opinon, is apparently against the bye-laws of TRIFED. The onus and burden pertaining to this fact has been sucessfully shifted upon accused persons and discharged by the prosecution. None of the accused persons have placed on record any evidence to the contrary that TRIFED was legally authorised to enter into agreement dated 28.11.1990 for procurement of paddy from tribal areas. This agreement has not only been signed and counter signed by A-2 Asong Singsit and A-1 (since deceased) but name of Krishan Kumar Mech and M/s Mech Enterprises CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 84 of 126 was proposed on previous occasion continuously by A-2 Asong Singsit, General Manager (Commercial), TRIFED Delhi and A-1 (since deceased) which is reflected from letter dated 01.09.1990 exhibited as Ex.PW1/3 (D-4). Thus, in my considered opinion this is nothing but a deliberate action on the part of A-2 Asong Singsit with A-1 (since deceased), who have played active role not only proposing the name of Krishan Kumar Mech and M/s Mech Enterprises, who was known to them prior to 28.11.1990, despite cognizance of the fact that TRIFED was not having lawful authority till 28.11.1990, to enter into any such agreement for procurement of paddy.
128. There is one allegation that while getting the name M/s Mech Enterprises approved, A-2 Asong Singsit and A-1 (since deceased) having played active role, were conscious of the fact that such approval has to be placed before Managing Director, as per bye-laws of TRIFED which is also reflected from document exhibited as Ex.PW1/4, Ex.PW1/5 and Ex.PW1/6 that it was to be placed before Executive Director and Managing Director. However, 'Managing Director' has been crossed and rather it was placed before Executive Director and thus approved. All these act, in my considered opinion are nothing but a deliberate and conscious act with an objective to procure the order mentioned in the document bypassing the rules as per bye-laws of the institution even. Such a conduct on CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 85 of 126 the part of A-2 Asong Singsit, therefore, falls squarely under the definition of 'abuse of position' in my considered opinion.
129. With regard to role of A-3 Ashutosh Dutt Mishra prosecution has brought on record a number of document showing that A-3 Ashutosh Dutt Mishra was the Incharge of Narainpur Center who sent two letters to GM/Zonal Manager, TRIFED, Guwahati that under his guidance paddy was being procured from local merchants, marwaries etc. whereas as per the record it was being shown to have been procured from Junai. This fact is stated by PW-29, PW-35 as well as by IO PW-36. There are a number of challans filed on record which have not been admitted but denied by the concerned transporters that they had plyed their trucks in tribal and forest areas. On the contrary, it is categorically stated by such transporters that they had collected paddy and seeds from local area only but it has been shown as collected from forest/tribal areas. A-3 Ashutosh Dutt Mishra is stated to be the Incharge to look after all such things having duty to ensure that no such manipulation should take place. If such manipulation as reflected from the documentary evidence itself which is also corroborated by PW-6 and PW-7, then the primary responsibility can only be attributed to A-3 Ashutosh Dutt Mishra who was Incharge of all such operation.
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130. Such suspicion gets stronger from letter dated 21.01.1991 exhibited as Ex.PW6/2 written by A-3 Ashutosh Dutt Mishra himself. This letter has not been disputed during evidence. In these circumstances, therefore, prosecution has been able to establish the second point that A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra have committed the abuse of their official position. There is no contrary evidence brought on record by any of the accused persons. The onus to prove the contrary is always upon a person who alleges different fact/story or who alleges anything then as per Section 106 of Indian Evidence Act the burden is always upon such person to prove the same. No such effort has been made by A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra in the present case.
131. It has been argued on behalf of A-2 Asong Singsit that whatever he has done was done under his official duties and as per the instructions of higher officials i.e. A-1 (since deceased). He had sent up the proposal for consideration and approval by Executive Director and Managing Director. It is stated that there was no evidence that there was no approval of Managing Director. It is stated that it was very much within the knowledge of the then MD Ms. Priya Prakash. Thus, whatever has been done was as per the directions and within the knowledge of the then MD Ms. Priya Prakash. It is further stated that in the present matter there was an arbitration clause and as dispute CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 87 of 126 arose an arbitration award was passed in favour of TRIFED. Thus, no economic loss has been caused to TRIFED.
132. It is argued on behalf of A-3 Ashutosh Dutt Mishra that, like A-2 Asong Singsit he was also working his official duties and was following the directions of his superior. A-3 Ashutosh Dutt Mishra has neither obtained any benefit from M/s Mech Enterprises nor there is any evidence available against him or any against A-1 (since deceased) and A-2 Asong Singsit that any monetary benefit was obtained by them. In this regard, A-3 Ashutosh Dutt Mishra has relied upon certain judgments as under:
1. "R.Balakrishna Pillai Vs. State of Kerela", (2003) 9 SCC 700, at page No. 726, the Hon'ble Supreme Court relied upon the decision in C.K. Damodaran Nair Vs. Government of India (1997) 9 SCC 477, wherein it was held that;
"`Obtain' means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)
(d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either `acceptance' - or `obtainment'.
".
2. "A.Subair Vs. State of Kerela", (2009) 6 SCC 578, wherein it has been held that to establish a CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 88 of 126 charge under Section 13 (I) (d) of PC Act it would be necessary to establish that the person charged obtained for himself or for any other person any valuable thing or pecuniary advantage. In case, where the evidence of obtainment is absent, merely for the reason that the public servant has abused his position as public servant to give advantage to others will not constitute the offence as defined under Section 13 (1) (d) of the PC Act. Similar observations has been followed in case titled as "C.K.Jaffar Sharief vs. State" (2013) 1 SCC 2005.
133. With regard to allegation of allowing the forged and manipulated bills and challans, it is stated by A-3 Ashutosh Dutt Mishra that these challans/bills have been brought on record in routine manner duly submitted on behalf of M/s Mech Enterprises none of which have been created or manipulated by A-3 Ashutosh Dutt Mishra. It is stated that if any forgery/ manipulation was done then it was done by A-4 Krishan Lal Aggarwal and A-5 (since deceased). A-3 Ashutosh Dutt Mishra was having his duty to accept the bills/challans/ vouchers.
134. It is important to mention here in this regard that the letter dated 21.01.1991 exhibited as Ex.PW6/2 written by A-3 Ashutosh Dutt Mishra speaks contrary to the submissions made by A-3 Ashutosh Dutt Mishra. This letter exhibited as Ex.PW6/2 has not been controverted by any of the accused CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 89 of 126 person. There is another noting marked as 'Mark PW6/DX-1', which further support the submissions made on behalf of prosecution.
135. A-3 Ashutosh Dutt Mishra has relied upon a number of judgments in support of his contentions as under:-
1. R. Sai Bharathi Vs. J. Jayalatitha & Ors, (2004) 2 SCC 9, at para 44.
2. R. Balakrishna Pillai Vs. State of Kerala, (2003) 9 SCC 700 at page No. 726.
3. C. K. Damodaran Nair Vs. Government of India, AIR 1997 SC 551, (1997) 9 SCC 477.
4. Subhash Parvat Sonvane Vs. State of Gujrat, (2002) 5 SCC 86
5. A. Subair Vs. State of Kerela, (2009) 6 SCC 587.
6. C. K. Jaffer Sharief Vs. State (through CBI), (2013) 1 SCC 205.
7. Kehar Singh & Ors. Vs. State (Delhi Administration), 1988 (3) SCC 609
8. State (through Superintendent of Police), CBI/SIT Vs. Nalini & Ors, (1999) 5 SCC 253 at Pr. 662.
9. State vs. Bina Ramani (Crl. MC 693/2016 decided on 20.06.2016)
10.Narbada Devi Gupta Vs. Birendra Kumar Jaiswal & Ors., (2003) 8 SCC 745 at Page No. 751.
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11.Madholal Sindhu vs. Asian Assurance Co. Ltd., 1961 The Bombay Law Reporter Volume LXVIII page 228.
12.Sir Mohammed Yusuf Vs. D. and Anr., AIR 1968 Bom. 112.
136. All the judgments relied upon by A-3 Ashutosh Dutt Mishra are perused thoroughly. The facts and circumstances of the present case, however, are peculiar and distinct in nature, therefore, none of the judgments are strictly applicable in the present circumstances. They have to be analyzed in the light of evidence led by both the parties which has been mentioned in detail in above mentioned paras. The evidence led by the prosecution however, speaks contrary to the submissions made on behalf of the accused persons. From the defence evidence led by A-2 Asong Singsit, General Manager (Commercial), TRIFED Delhi and A-3 Ashutosh Dutt Mishra none of the testimonies supported with documentary evidence brought by prosecution witnesses has been controverted in my considered opinion. Therefore, in my considered opinion the prosecution has been able to discharge the burden of proving the fact that A- 2 Asong Singsit and A-3 Ashutosh Dutt Mishra have misused and abused their official position by employing corrupt and illegal means by causing pecuniary advantage to A-5 (since deceased) and M/s Mech Enterprises by allowing them to procure paddy and seeds on the basis of forged and fabricated CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 91 of 126 documents from tribal and forest areas. In terms of these observations, second point of determination is decided accordingly.
FOURTH POINT OF DETERMINATION Whether A-4 Krishan Lal Aggarwal along with A-5 (since deceased) during the year 1990-1991 at Delhi and Guwahati forged various documents purported to be valuable security like challans, bills and vouchers to claim and receive money from TRIFED/Government of India having an intention that they shall be used for the purpose of cheating and also used such bills, vouchers and challans as genuine despite having knowledge or reason to believe them to be forged document thereby committed an offence punishable under Sections 467, 468, 471 IPC.
137. Fourth point of determination is taken up prior to other remaning point of determination as it is important to discuss the role and liability of A-4 Krishan Lal Aggarwal before proceeding further. As per record, the charge so framed against A-4 Krishan Lal Aggarwal is under Sections 467, 468, 471 IPC. As per the allegations, A-4 Krishan Lal Aggarwal in the process of cheating TRIFED in connivance with A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra as well as A-1 (since deceased) is said to have created false, fabricated and manipulated challan/ bills of claim of expenses incurred for procurement of paddy and seeds. The other allegation against A-4 Krishan Lal CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 92 of 126 Aggarwal is that he has also deliberately mentioned wrong vehicle numbers which are alleged to have been used for collection of paddy and seeds, upon their delivery challans alleged to be used for procurement of paddy and seeds.
138. At the outset, it is mentioned that the only piece of evidence brought against A-4 Krishan Lal Aggarwal is that he had falsely created certain challans, bills and receipts. It is a matter of record that A-4 Krishan Lal Aggarwal is an employee/accountant of A-5 (since deceased) who was the owner of M/s Mech Enterprises.
139. It is needless to say that allegation of forgery and falsely creating bills, challans etc. cannot be said to be established by mere oral averment. Such averment is always dependent upon the documentary evidence i.e. bills/challans/receipts itself. There are two set of reports filed on record along with the charge-sheet however, from the careful perusal of these reports it is reflected that none of them specify as to on what basis the opinion has been arrived at and what are the sample writing from which questioned document have been compared with. Questioned documents have been examined with sample handwriting, however, it is not clear from the report itself as to whose sample handwriting has been taken to compare the questioned document. The important document which reflects CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 93 of 126 that the sample handwriting of a particular person i.e. A-4 Krishan Lal Aggarwal in the present case, has been compared with questioned document, is not forming part of record.
140. It is important to mention here the order dated 08.03.2018, passed by this court by which accused persons have not disputed the CFSL reports filed on record. There are two reports of Sh.R.Chandra, who was cited as LW-72 and V.K.Khanna, who was not even cited as witness, in list of witnesses. As per the order of Hon'ble High Court of Delhi these reports have been directed not to be examined during evidence as these witnesses have been not allowed to be examined. It is a matter of record that one of these two witnesses, Sh. R. Chandra was allowed to be examined after filing of an application under Section 311 Cr. P.C as PW-50, however, as per subsequent order of Hon'ble High Court this witness has been disallowed and hence testimony of this witness cannot be read in evidence. Thus, the only supportive fact in this regard is the observation given vide order dated 08.03.2018 vide which these reports are not disputed by accused persons. These reports, therefore, are admitted documents. However, from the report itself it is not reflected as to whose sample handwriting has been taken and whether it was handwriting of A-4 Krishan Lal Aggarwal which was compared with the questioned document.
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141. The report however, says that the questioned documents are forged. In this regard, in my considered opinion such a report though stating that document has been forged and manipulated, however, it does not establish by itself that it has been done by A-4 Krishan Lal Aggarwal or any of the accused persons unless it is connected with such accused. One of the most important relevant document in this regard pertaining to sample handwriting of accused person is missing from the record and it has not been sought to be brought on record either at the time of filing of chargesheet or initial stage of trial though a desperate effort was made by prosecution at a later stage by filing an application under Section 311 Cr.P.C which was though allowed but later on challenged before Hon'ble High Court of Delhi. As per this order, witnesses from CFSL were allowed to be examined, however, the relevant document was not brought on record even then. This in my considered opinion is a serious lapse on the part of prosecution and more particularly the IO of the case. Thus, as the connecting evidence in this regard is neithter available nor tendered in evidence, hence, the evidence to this extent available on record in my considered opinion is not sufficient to establish the liability of A-4 Krishan Lal Aggarwal. The allegation against A-4 Krishan Lal Aggarwal, therefore, remains mere allegation. In the absence of the evidence the benefit of doubt is therefore, given CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 95 of 126 to A-4 Krishan Lal Aggarwal with regard to the charge so framed against him under Sections 467, 468, 471 IPC. In terms of these observations, the fourth point of determination is decided accoridingly.
THIRD POINT OF DETERMINATION Whether A-2 and A-3 along with A-1 (since deceased) after entering into a criminal conspiracy with other accused persons i.e. A-4 and A-5 (since deceased), in connivance with each other cheated TRIFED/ Government of India by dishonestly inducing it to deliver Rs.1,79,75,000/- to A-5 by dishonest misrepresentation of the fact that paddy, mustard seeds and Niger seeds have been procured from tribal area through false bills, challans and vouchers thereby committed an offence punishable under Section 420 IPC?
142. It is a matter of record that one of the Section under which charge has been framed against A-2, A-3 and A-4 is under Section 420 IPC. As per the allegation in the charge- sheet and the charge so framed against the accused persons, they are alleged to have induced TRIFED to deliver Rs.1,79,75,000/- as advance to M/s Mech Enterprises and A-4 Krishan Lal Aggarwal and A-5 (since deceased) for which A-4 Krishan Lal Aggarwal and A-5 (since deceased) have not only misused the terms and conditions of the agreement dated 28.11.1990 and 21.01.1991 but were allowed by A-2 Asong CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 96 of 126 Singsit and A-3 Ashutosh Dutt Mishra alongwith A-1 (since deceased) to enter into a contract without furnishing the bank guarantee and utilization certificate for procurement. The other allegation against the accused persons are that A-4 Krishan Lal Aggarwal and A-5 (since deceased) had procured paddy and seeds mostly locally and furnished fake and manipulated bills which were allowed to be brought on record with the help of A- 3 Ashutosh Dutt Mishra.
143. Thus, in nutshell the allegation against A-2 Asong Singsit, General Manager (Commercial), TRIFED Delhi, A-3 Ashutosh Dutt Mishra and A-4 Krishan Lal Aggarwal along with A-1 (since deceased) and A-5 (since deceased) are that they have cheated the TRIFED which is a Government concern by inducing it to deliver Rs.1,79,75,000/- on the basis of forged and manipulated bills.
144. Before proceeding further, it is important to lay down the law relating to cheating which is defined under Section 415 IPC. Section 415 IPC defines cheating as under:-
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 97 of 126 is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."
Cheating is punishable under Section 420 IPC which reads as under:-
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
145. Conjoint reading of Sections 415 IPC and 420 IPC requires following essential ingredients to be established in order to prove the liability of an accused.
i. Deceiving by any person;
ii. Such deceiving is by inducement with dishonest intention;
iii. Inducing such other person fraudulently and dishonestly to deliver any property to any person or to consent that any person shall retain any property or valuable security or anything which is being converted into a valuable security;
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v. Such act or mission is likely to cause damage or harm to such person in body, mind, reputation or property.
146. It has been held in 'Mahadev Prashad vs. State of Bengal', AIR 1954 SC 724, that the offence of cheating is established when the accused thereby induced that person to deliver any property or to do or to omit to do something which he would otherwise not have done or omitted.
147. As per the charge-sheet, as stated above, A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra are stated to have created a situation deliberately having an intention to cause unlawful gain to M/s Mech Enterprises and its owner Kishan Lal Mech (since deceased), who is A-5 as well, by inducing TRIFED to not only considering the name of M/s Mech Enterprises and its owner Kishan Lal Mech (since deceased), who is A-5 as well, as agent on behalf of TRIFED but also entered into an agreement on behalf of TRIFED with M/s Mech Enterprises by which M/s Mech Enterprises was authorised to collect and procure paddy and seeds. Besides this, as already stated above the allegation against A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra are that they not only induced TRIFED to deliver CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 99 of 126 an advance of Rs.1,79,75,000/- to M/s Mech Enterprises facilitate in delivering the same in actual against which they also facilitate and allowed procurement of paddy and seeds on the basis of forged and manipulated bills.
148. The circumstances leading to formation of agreement dated 28.11.1990, which is under signature of A-2 Asong Singsit and A-1 (since deceased) for which neither TRIFED nor any of its officers was legally authorised to enter into, have been discussed in above mentioned paras which is not repeated here for the sake brevity. It has also been discussed in above mentioned paras that the name of Kishan Kumar Mech (since deceased) and M/s Mech Enterprises was proposed by A-1 (since deceased) not by chances but they were having acquaintance prior to that. The letter dated 01.09.1990 exhibited as Ex.PW1/3 (D-4) is an instance of one of such acquaintance in between accused persons. The documents Ex.PW1/4, Ex.PW1/5, Ex.PW1/6, Ex.PW1/7 and Ex.PW1/8 which are 'OPERATION SAP - ASSAM' are also discussed above against which there is nothing contrary brought on record from the side of any of the accused persons. Another instance of discussion of the matter in between 'Government of Assam' and 'TRIFED' is enshrined in minutes dated 15.11.1990, 17.11.1990 and 20.11.1990 which are exhibited as Ex.PW10/1, Ex.PW10/2 and Ex.PW10/3 has also been discussed above.
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149. The role of A-3 Ashutosh Dutt Mishra has also been discussed through a number of prosecution witnesses that he was Incharge of Narainpur Center, Guwahati from which a number of manipulated challans are stated to have been filed showing procurement of paddy locally, but shown as collected from Junai. One important document in this regard is letter written by A-3 Ashutosh Dutt Mishra himself under his handwriting is mentioning this fact that procurement of paddy has been shown from Junai though it has been collected from a different place locally. This letter is exhibited as Ex.PW6/2. All the bills which are stated to have been furnished by and on behalf of A-4 Krishan Lal Aggarwal and A-5 (since deceased), most of them are forged and manipulated with regard to which, a number of PWs, who are transporters and other persons, have been examined.
150. Neither the testimony of these PWs have been CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 101 of 126 controverted nor the documents which are challans filed pertaining to procurement of paddy and seeds showing as collected from tribal and forest area but in actual procured from local areas/local traders have not been disputed or controverted by any of the accused persons during their cross-examination. A sum of Rs1,79,75,000/- in total has been transferred the form of advance to M/s Mech Enterprises is also not disputed or controverted.
151. It has been argued that A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra was not in a position to verify that challans filed by M/s Mech Enterprises for claim of their expenses for procurement of paddy and seeds was not from tribal and forest area but locally. This submission made on behalf of A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra do not inspire their confidence as the documentary evidence filed by the IO alongwith charge-sheet clearly reflects that A-1 (since deceased) was the master mind of the entire incident who was previously having acquaintance with Krishan Kumar Mech and was working in connivance with A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra. There are number of documents filed on record to establish this fact which has been discussed in above mentioned paras at length.
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152. It has been stated by a number of PWs during their examination that though M/s Mech Enterprises was to collect and procure paddy and mustard seeds from tribal and hill areas as mentioned in agreement dated 28.11.1990 and 21.01.1991, however, it was not only mostly allowed to be collected locally but the delivery challans/bills which were filed in respect thereof being manipulated, were allowed to be taken on record without much scrutiny through A-3 Ashutosh Dutt Mishra. All such act which is not only an overt act of facilitating M/s Mech Enterprises, but an omission on the part of A-3 Ashutosh Dutt Mishra, who was working in consonance with A-2 Asong Singsit by not scrutinizing the claim of expenses on the basis of challans/bills filed on behalf of A-4 Krishan Lal Aggarwal and A-5 (since deceased) most of which were not only manipulated but entire quantity of paddy and seeds was not collected thus, it was not commensurating with the quantitites of paddy and seeds. Release of advance for which PW-1 A. K. Kaul had raised objections besides raising objection for not asking bank guarantee clause, has also not been considered by A-2 Asong Singsit which has also been discussed in above mentioned paras. Thus, A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra, in my considered opinion have been actively involved in not only facilitating the inclusion of name of A-5 (since deceased) CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 103 of 126 and an agent of TRIFED but also ensured, under directions of A-1 (since deceased), to enter into an agreement with M/s Mech Enterprises against bye-laws of TRIFED exhibited as Ex.PW1/10 (File D-11). They also relaxed terms and conditions which were directly beneficial to M/s Mech Enterprises and A-4 Krishan Lal Aggarwal and A-5 (since deceased) and detrimental to TRIFED which had resulted into release of advance of Rs.1,79,75,000/- in total a large part of which remained unutilized lying with A-4 Krishan Lal Aggarwal and A-5 (since deceased).
153. Now, coming to the documentary evidence pertaining to fake delivery challans and manipulated vehicles used for procurement of paddy and seeds.
154. Prosecution has examined PW-3 Vijay More, Trader of Mustard at Alwar, who has deposed that his father Late Sh.Satyanarayan More was partner in M/s Ganpat Rai Lal Chand, Old Station Road, Alwar, Rajasthan alongwith Sh.Ganpat Rai, Sh. Lal Chand and Sh. Mahavir Prasad More. PW-3 also used to assist his father in running of business. They used to deal in sale and purchase of mustard seeds. M/s Ganpat Rai Lal Chand was having account in Union Bank of India. Photocopy of Account Opening Form is marked as Mark PW- 3/PX.
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155. PW-3 stated that draft No. 367774 dated 23.04.91 for Rs.2 Lakhs and draft No. 367741 dated 18.04.91 for Rs.3 Lakhs which were issued from Punjab National Bank, Darya Ganj, New Delhi in favour of their firm exhibited as Ex. PW-3/1 and Ex.PW-3/2 were duly received qua the sale of mustard seeds.
156. This witness has not been cross-examined by any of the accused persons and it is reflected from his entire testimony that whether there was any deal with M/s Mech Enterprises or not has not been apprised. Thus, this witness is not of much help to the prosecution.
157. PW-14 Sh. Manowar Hussain deposed that in the year 1991, he was working as Marketing Inspector in Market Committee, North Lakhimpur in District Lakhimpur, Assam and was posted at Howajan, Check Gate in North Lakhimpur Market Committee Area. His duty was to make entry of trucks in which paddy and mustard were being taken from the market and collect 1% of total value of paddy and mustard as cess. He deposed that during that time mustard was taken from the committee in trucks by TRIFED. He also deposed that during his posting 10 to 12 trucks of mustard was taken from the said committee.
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158. PW-15 Kumud Chand Vohra S/o Late Sh. Golock Chand Vohra, also deposed in similar manner as to PW-14. He further deposed that during his posting 6 to 7 trucks of mustard seed was taken from the said committee.
159. These two witnesses PW-14 and PW-15 have stated that mustard seeds was procured from North Lakhimpur Market Committee Area.
160. PW-16 Sh. Kan Singh Shekhawat S/o Sh. Narayan Singh Shekhawat deposed that he was running Rice and Fertilizer business in Dhemaji in the year 1991. He supplied paddy in the year 1991 to TRIFED, which was made by an official of TRIFED but he do not remember his name. He also deposed that he had seen challan no. 252 dated 1.1.1991, challan no. 251 dated 31.12.1990 and challan no. 257 dated 09.01.1991, which were in his handwriting and exhibited as Ex. PW-16/1 (colly.) (Part of file D-210). Vide these challans, PW- 16 had supplied three trucks of paddy to TRIFED and received Rs. 2 Lacs from the official of TRIFED for the sale of paddy. This witness has again not been cross-examined by the accused persons. It is reflected from the perusal of testimony of this witness that he was a local supplier who had supplied the paddy to TRIFED vide challan no. 251, 252 and 257 exhibited as Ex.PW16/1 (colly.).
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161. Next witness examined by prosecution is PW-18 Sh.Gopal Rathi S/o Late Sh. Sugan Chand Rathi who has deposed that in the year 1990-1991, he was having a truck which was being operated locally bearing registration No. ASM 2191 and a shop. He deposed that he was having two drivers at that time namely, Sh. Ram Prasad and Sh. Raju. He deposed that he did not knew any Pratipal Singh and that his truck never went from Junai to Narayanpur in March 1991 nor he received any freight charges for the same. This witness has not been cross-examined by accused persons.
162. It is reflected from the testimony of PW-18 that he was instrumental as transporter in procurement from local area not from Junai as stated to have been shown from record by M/s Mech Enterprises which is stated to be facilitated by A-3 Ashutosh Dutt Mishra.
163. PW-19 Ronald Sangma S/o Late Sh. B.G Momin deposed that in the year 1991, he was supplying food grains being a farmer and was working as Contractor. He deposed that in the year 1991, accused Krishan Kumar Mech met him and asked to procure paddy from villagers and also from the Merchants. He further deposed that during that period, accused Krishan Kumar Mech gave him total around Rs. 4 Lakhs through cheques and CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 107 of 126 PW-19 supplied paddy of around Rs.2 Lakhs to accused Krishan Kumar Mech and remaining Rs. 2 Lakhs he took from me through Diganto Barua and Deven Mech. The cheques given to PW-19 by accused Krishan Kumar Mech was deposited by him into his account in State Bank of India, Dipheu Branch, Assam. PW-19 identified the certified copies of cheques and pay-in-slips pertaining to his account exhibited as Ex.PW19/1 (colly.) i.e., from D-190 to D-197 and D-200 to D-207 (total
16), bearing his signatures at point A. He deposed that Gaman Baglary and other villagers supplied paddy along with him and he did not get any commission for supplying the paddy. He also deposed that an amount of Rs.25,000/- was retained by him which was never asked by accused Krishan Kumar Mech.
164. This witness has again not been cross-examined by accused persons. This witness in my considered opinion has corroborated the fact that he was paid to collect paddy and seeds from local farmers.
165. The next witness examined by prosecution is PW-22 Altaf Ahmad Ansari S/o Late Sh. M.U. Ansari who deposed that he joined TRIFED in 1989 as Sales Executive and was posted at TRIFED Guwahati. He deposed that Sh.Kamlesh Chandra was the General Manager at that time. He had identified the cheques (D-123 to D-125, D-127, D-129 to D-132, D-134, D-
CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 108 of 126 136 to D-147, D-149 to D-173, D-177) exhibited as Ex.PW22/1(colly.) bearing the signatures of the then General Manager Sh.Kamlesh Chandra at point A as authorized signatory. He deposed that he does not have any knowledge about any procurement process carried out by M/s Mech Enterprises. He further deposed that in the year 1991-1992, he had seen some stocks lying in FCI godown Lakhimpur (Assam). He also deposed that the stock was supplied by TRIFED to FCI and was kept there for cleaning purposes. He deposed that accused Krishan Kumar Mech was appointed as procurement agent by TRIFED. The cleaning was being done on the instructions of GM Sh.Kamlesh Chandra. PW 22 also identified office order exhibited as Ex.PW20/1 vide which a committee was constituted for examination of accounts for procurement of paddy, mustard seeds and Niger seeds by TRIFED's agent M/s Mech Enterprises. The committee carried out verification of accounts on the basis of bills and vouchers produced by accused Krishan Kumar Mech before the head office of TRIFED. The said witness also identified 49 vouchers exhibited as Ex.PW22/2 (Colly) and stated that the said vouchers appeared to be the same submitted by accused Krishan Kumar Mech. PW 22 also identified report exhibited as Ex.PW22/3 regarding assessment of accounts of M/s Mech Enterprises regarding procurement of Niger seeds (D-66), according to which total 366.10 quintals of Niger seeds were supplied by M/s Mech CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 109 of 126 Enterprises to the value of Rs. 4,10,826/- including all charges. He also deposed that there was no agreement between TRIFED and M/s Mech Enterprises. He also identified letter dated 20.12.2019 (D-67) exhibited as Ex.PW22/4 bearing the signature of the then General Manager, Sh. Kamlesh Chandra. The witness also identified file (D-250) containing letter dated 18.09.1991 exhibited as Ex.PW22/5 vide which PW 22 had send documents/letters which were received from M/s Mech Enterprises during the paddy procurement in Assam, as per directions of Managing Director.
166. During cross-examination of this witness on behalf of A- 2 Asong Singsit, not much light has been thrown upon the facts of the case regarding procurement of paddy and seeds. It is further reflected that other accused persons have not cross- examined this witness.
167. One important thing which is reflected from the careful perusal of the examination of this witness is the fact that vouchers and bills pertaining to procurement of paddy and seeds before TRIFED are submitted by M/s Mech Enterprises is established
168. PW-24 Sh. Naval Kumar Aggarwal S/o Late Sh. Dwarka Prasad deposed that his family was running a business of CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 110 of 126 transport. He also deposed that in 1991, he had 6-7 vehicles bearing nos. ASZ-7502, AMK-6384, AMA 9315, AMU 5604 and ASZ 7127. He had identified the delivery challans marked as Mark PW13/PX(colly.) and Ex. PW24/1 (colly., 9 challans) including delivery challans dated 01.04.1991 (3 delivery challans), 05.04.1991 (2 delivery challans), 06.04.1991, 28.03.1991, 30.03.1991 (2 delivery challans). He further deposed that his vehicles / trucks having registration numbers mentioned above never visited the places as mentioned in challans and the delivery challans are fake. He also deposed that he had seen debit vouchers dated 20.05.1991, 30.04.1991, 11.04.1991 and 10.04.1991 [part of Ex.PW22/2(colly.)] in the name of Sh. Pawan Kumar Aggarwal for the purpose of payment of ferry charges. He deposed that these vouchers do not bear the signatures of his brother Sh. Pawan Kumar Aggarwal and the vouchers are fake.
169. PW 39 Kamal Kumar, S/o Late Sh. Dwarika Prasad deposed that his father and elder brother were into transport business and were having 5 -6 trucks. He further deposed that truck having No. AMK 6384 was in his name. After seeing delivery challans contained in D-61 dated 01.04.1991 (3 challans) and 05.04.1991 (two challans) he deposed that his trucks were never used in relation to the said challans and no goods were transported through his trucks from the areas/places CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 111 of 126 mentioned therein. He had denied the signatures of his brother on debit vouchers. This witness has not been cross-examined by A-2 Asong Singsit, A-3 Ashutosh Dutt Mishra and A-4 Krishan Lal Aggarwal.
170. PW 43 Pawan Kumar Aggarwal S/o late Sh. Dwarika Prasad deposed that he had a transport business in Fancy Bazar, Guwahati and his brothers Kamal Kumar and Naval Kishore used to assist him and are still into the same business. He also deposed that in the year 1991, they were having 4-5 trucks bearing registration numbers AMK 6384, ASZ 7502, ASJ 7127, AMK 9201. He deposed that though the trucks were having permit to run in entire Assam but were used only for transportation within Guwahati. He deposed that CBI had shown him some delivery challans in which our truck number were mentioned but his truck had never gone out of Guwahati. After seeing the delivery challans exhibited as Ex.PW24/1 (contained in D-61) dated 01.04.1991 (three challans), 05.04.1991 (two challans), 06.04.1991 (one challan), 28.03.1991 (one challan) and 30.03.1991(two challans) he deposed that since his trucks never went out of Guwahati, he never permitted the truck to be used in relation to said delivery challans. The witness also after seeing the 4 debit vouchers part of Ex.PW 22/2 (D-70) at page 70, 71, 72, & 73 purportedly bearing the signatures of Pawan Kumar as payee at Q-25 to Q-
CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 112 of 126 28, the witness states that these are not his signatures and he never issued any said debit vouchers to Mech Enterprises.
171. Testimony of all these witnesses are on similar line, they are the local transporters and have stated that their trucks have never gone out of Guwahati and the truck number mentioned in delivery challan dated 01.04.1991, 30.03.1991 have never been used in relation to fact mentioned in delivery challans. Both these witnesses have further corroborated the fact that four debit vouchers which are part of Ex.PW22/2 (D-70) have never been used nor such vouchers have been issued to M/s Mech Enterprises.
172. PW30 Bal Kishan Sharma s/o Sh. Shiv Bhagwan Sharma deposed that he had worked as Transporter at Kala Pahad, Guwahati for around 25 years and were having three trucks. He deposed that he was called in CBI office and was shown delivery challans to which PW 30 told CBI that he never carried any goods outside Guwahati through his trucks. He had also seen six delivery challans (contained in D-61) exhibited as Ex.PW 30/A-1, Ex.PW 30/A-2, Ex.PW 30/A-3, Ex.PW 30/A-4, Ex.PW 30/A-5 and Ex.PW 30/A-6 showing delivery of mustard seeds. After seeing the truck numbers mentioned in the challans he denied that the challans are not pertaining to his trucks. He also deposed that his truck never transported any such goods CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 113 of 126 from outside Guwahati for MECH Enterprises, and there is no question of payment of any freight to us.
173. This witness has not been cross-examined by and on behalf of A-2 Asong Singsit, A-3 Ashutosh Dutt Mishra and A- 4 Krishan Lal Aggarwal. This witness has categorically stated that the numbers mentioned in exhibites Ex.PW30/A-1 to Ex.PW30/A-6 are not pertaining to them, though shown to have been pertaining to them. Thus, as this fact that these numbers are manipulated in the challans dated 23.04.1991 and 24.04.1991, is not been disputed or controverted, hene stands established.
174. PW-45 Sh. Rajender Kumar Harlalka, s/o Sohan Lal Harlalka deposed that earlier he was in transport business in Guwahati and was proprietor of M/s North Lakhimpur Road Carrier, Lakhtakiya, Guwahati. He deposed that his truck used to ply between Guwahati and Lahimpur. After seeking the delivery challans exhibited as Ex.PW45/A-1 to A-4 he deposed that his truck was never involved in the process of transportation of the commodity shown in such challans.
175. This witness has not been cross-examined by any of the accused persons. This witness like other transporters have denied that his truck number AMK 8411 though mentioned in CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 114 of 126 delivery challans, however, was never involved in transportation of commodity as mentioned in such challan against his truck number.
176. It is reflected from the testimonies of above mentioned witnesses that A-1 (since deceased), though proceedings have been abated against him as per order dated 16.03.2021, had played pivotal role in the entire incident who being Executive Director and second senior most officer of TRIFED had not only proposed the name of A-5 (since deceased) and M/s Mech Enterprises to be considered as an agent for procurement of paddy and seeds but managed the inclusion of his name through A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra. Thus, in my considered opinion, all these accused persons i.e. A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra were having an intention since the beginning that name of M/s Mech Enterprises as agent should be considered by TRIFED. It is also brought on record by prosecution through a number of documentary evidence as mentioned above that name of M/s Mech Enterprises was not only proposed but considered as mentioned in 'OPERATION SAP -ASSAM' of different dates which is under signature of A-2 Asong Singsit and A-1 (since deceased). Prosecution has also brought on record that as per bye-laws of TRIFED any such approval and entering into an agreement with third party has to be with the consent and concurrence of CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 115 of 126 Managing Director or through any person authorised by him/her. There is neither any concurrence of Managing Director nor concerned Managing Director i.e. PW-48 had authorised any person in this regard in writing nor the concerned note dated 15.10.1990, 16.10.1990, 17.10.1990 and draft agreement exhibited as Ex.PW1/8 (D-12) was ever placed before Managing Director for her signature and approval. Ex.PW1/9 (D-27) is an important comment of certain lapses in the draft agreement pointed out by PW-1 which again, have not only be not considered but approved by A-2 Asong Singsit and A-1 (since deceased). The prosecution has further brought on record the evidence that Krishan Kumar Mech was either not having any knowledge or much knowledge about the work which was assigned to him as PW-47 B. C. Bardolai has stated that Krishan Kumar Mech was a professional photographer, who was running a photo studio in Brahamputra Hotel. Prosecution has further brought on record that due to the act of A-2 Asong Singsit and A-1 (since deceased), A-3 Ashutosh Dutt Mishra also acted in furtherance of their ulterior motive and by his overt act he being Incharge of Narainpur Center, Assam allowed the delivery challans/vouchers to be submitted on behalf of M/s Mech Enterprises showing that procurement has been from Junai and tribal and forest area, though in actual it was not. This fact is corroborated with one of the letter dated 01.09.1990 exhibited as Ex.PW1/3 (D-4) which is stated to be CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 116 of 126 in the handwriting of A-3 Ashutosh Dutt Mishra himself as he has put his signature as well at the end of this letter. It has already been discussed above at various places that in this letter A-3 Ashutosh Dutt Mishra himself has mentioned that procurement of paddy is shown on the vouchers/challan from Junai though collected locally. There is no cross-examination from the side of any of the accused persons controverting this fact that this letter has not been written by A-3 Ashutosh Dutt Mishra. Thus, the conduct of A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra along with A-1 (since deceased) reflects that they were having prior meeting of mind as reflected from the observations of discussion under first point of determination. Over act on the part of A-2 and A-3, as already mentioned above reflects that their committing the same act resulting into release of advance to the tune of Rs. 1,79,75,000/- could not be possible unless they were having prior meeting of mind and therefore, they have hatched a criminal conspiracy. Prosecution has also brought on record a number of documents which is summarized by IO/PW-36 that not only total advance payment to the tune of Rs.1,79,75,000/- was released despite their being an objection by one of the employee PW-1 A. K. Kaul, Executive Director TRIFED in violation of bye-laws as there has been no previous instance cited that such a relaxation of mandatory provisions to be included in agreement with third party have been done, but M/s Mech Enterprises has not CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 117 of 126 supplied the complete quantity of paddy and seeds required to be supplied. Procurement was required to be from tribal and forest area but that has not only been done but most of the collection was made locally and fake bills and delivery challans were also submitted by M/s Mech Enterprises and A-5 (since deceased). All these facts reflects, in my considered opinion that A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra were having an intention to cause unlawful loss to the TRIFED and unlawful gain to M/s Mech Enterprises.
177. Coming to the role of A-4 Krishan Lal Aggarwal as charge under Section 420 IPC has been framed against him. It is a matter of record that A-4 Krishan Lal Aggarwal was an employee and accountant of M/s Mech Enterprises. It is needless to say that an employee cannot be said to be responsible for each and every act of the employer unless and until he has been authorised to do so specifically or impliedly or under such authority he has committed an offence with such an intention. One of the allegation against A-4 Krishan Lal Aggarwal is that he had falsely created certain bills. This aspect has already been discussed in fourth point of determination as discussed above. As per the outcome of the discussion, prosecution has not been able to establish beyond reasonable doubt that it was A-4 Krishan Lal Aggarwal who has forged and manipulated various bills and challans.
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178. It is needless to say that liability under criminal law is of personal nature. Each person is liable for his act if done with an criminal intent unless and until he is said to have formed a common intention as defined under Section 34 IPC or criminal conspiracy as defined and punishable under Section 120-B IPC. The only allegation as per charge-sheet consisting of overt act as well attirbuted to A-4 Krishan Lal Aggarwal is that he had filed forged and manipulated bills and challans with TRIFED. Rest of other allegations are mere oral and there is, in my considered opinion no evidence on record.
179. It is important to mention here that, as already stated above that the role and capacity of A-4 Krishan Lal Aggarwal in M/s Mech Enterprises cannot be ignored. There is no evidence brought on record by prosecution that A-4 Krishan Lal Aggarwal was working for M/s Mech Enterprises in a much more capacity than assigned to him by which he could be said to be linked with the criminal conspiracy of all the accused persons as alleged in the charge-sheet. In this regard, in the light of above discussion, in my considered opinion, the evidence against A-4 Krishan Lal Aggarwal brought on record by the prosecution is not sufficient to consider that he was having an intention to cheat or he had conspired criminally with other accused persons to commit the act as alleged.
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180. Therefore, in the light of above discussion, I am of the considered opinion that prosecution has been able to discharge the burden of proving the fact that A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra had not only hatched criminal conspiracy as concluded in discussion under first point of determination but had misused their official position resulting into unlawful gain to M/s Mech Enterprises as discussed in second point of determination. A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra in my considered opinion have, therefore, cheated TRIFED by inducing it to deliver an advance of Rs.1,79,75,000/- to M/s Mech Enterprises which was released as well against norms and byelaws of TRIFED without calling for any bank guarantee which, resulted into unlawful loss to the TRIFED thereby loss to the Government Exchequer. Thus, the third point of determination is decided in favour of prosecution that A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra have committed this offence of cheating however, evidence qua A-4 Krishan Lal Aggarwal is not sufficient to determine his liability, therefore, the charge of Section 420 IPC cannot sustain against him.
FINAL OPINION
181. In the light of above discussion, it is reflected that A-2 CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 120 of 126 Asong Singsit and A-3 Ashutosh Dutt Mishra have committed an offence by hatching a criminal conspiracy by which they conspired to misuse and abuse their official position with the help of A-1 (since deceased) with an intention to cause unlawful gain to M/s Mech Enterprises and A-5 (since deceased) and unlawful loss to TRIFED by allowing M/s Mech Enterprises to bring on record the manipulated and forged documents pertaining to procurement of paddy and seeds as well as various delivery challans, in respect thereof. The reason for arriving at this opinion are enshrined in nutshell in following paras as under:
i. As per bye-laws of TRIFED exhibited as Ex.PW1/10 (File D-11) it is the Managing Director, who has the power to supervise and control the functions of TRIFED and authorised to issue necessary directions either through himself or through person so delegated in writing. In the present case, there is no such directions issued either by Managing Director or any delegation of power as per bye-laws in favour of A-1 (since deceased). Thus, in my considered opinion agreement dated 28.11.1990 so executed was against bye-laws of TRIFED.
ii. This agreement dated 28.11.1990 is also said to be against the law for the reason that prosecution has brought on record the document dated 06.12.1990, which CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 121 of 126 is marked as 'Mark PW12/PX' and 13.12.1990. These documents have not been controverted during entire trial therefore they are considered to have been established. The proseuction has been able to discharge the burden of proving these documents.
iii. As per noting dated 15.10.1990 and 16.10.1990, the agreement in question should be signed by MD, however, as per these documents 15.10.1990, 16.10.1990 and 17.11.1990 as mentioned in 'OPERATION SAP -
ASSAM', as not only brought on record by PW-1 but also relied upon by defence witness no. 2 on behalf of A- 2, have neither been placed before Managing Director nor it contains his/her signature. Thus, A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra along with A-1 (since deceased) were working very much in consonance with prior meeting of mind and they, in my considered opinion ensured in all respect that their intention to get the agreement executed despite the fact that it was against the bye-laws of TRIFED, should not be brought to the knowledge of any other official.
iv. Prosecution has been successful in proving from the record by a number of documents that TRIFED was not authorised to enter into agreement dated 28.11.1990 till 06.12.1990 or 13.12.1990.
v. Another startling fact established by the prosecution is CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 122 of 126 there has been release of advances as well as relaxing the terms and conditions for charges of overhead expenses which have been recommended by A-2 Asong Singsit as per the directions of A-1 (since deceased). As per record, there is an evidence vide which clause pertaining to obtaining bank guarantee and not releasing of advance money raised by PW-1 have not been considered by A-2 Asong Singsit. There is no evidence contrary to this fact reflecting from the record.
vi. As per record, there has been release of advance payment to the tune of Rs.1,79,75,000/- which is acknowledged by PW-29 and other witnesses. Release and receiving of advance to this extent is again not disputed by any of the accused persons.
vii. It was agreed as per agreement that M/s Mech Enterprises had to supply 1.9 Lakh quintal of paddy and 1.75 lakh quintal of mustard seed at a total cost of Rs.4.67 Crores. However, this entire supply has not been done by and on behalf of M/s Mech Enterprises as the challans/vouchers filed on behalf of M/s Mech Enterprises for claim of their expenses for procurement of paddy and seeds are for lesser quantities. Thus, this further establish the fact that though the advance of Rs.1,79,75,000/- in total was supplied to M/s Mech Enterprises, however, major part of it remained un- CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 123 of 126 utilized and not returned. Bills which have been filed as per record are for Rs.1,29,75,000/-.
viii. The role of A-3 Ashutosh Dutt Mishra that he was instrumental in allowing the procurement of paddy and seeds through false and manipulated vouchers/challans has been explained and established by prosecution through a number of witnesses. One of such document is letter dated 21.01.1991 which is in the handwriting of A- 3 Ashutosh Dutt Mishra himself has been proved by the prosecution as there is no denial to this letter written by A-3 Ashutosh Dutt Mishra himself. PW-6, PW-7 and PW-9 have corroborated this fact.
ix. With regard to role of involvement of A-3 Ashutosh Dutt Mishra, PW-12 has brought on record document marked as PW12/PX-1 dated 13.12.1990 and exhibit Ex.PW12/2 dated 18.12.1990, which shows the meeting of FCI vide which TRIFED was appointed as an agent for procurement of paddy for tribal areas of Assam. This meeting was attended by A-3 Ashutosh Dutt Mishra. All this facts have been corroborated by PW-6 and PW-7 who have deposed that A-3 Ashutosh Dutt Mishra was Incharge of Narainpur Center, Guwahati, Assam and they (PW-6 and PW-7) used to receive instructions from A-3 Ashutosh Dutt Mishra to record the receiving of paddy from Junai. In this regard, document exhibited as CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 124 of 126 Ex.PW6/2 and Mark 6/DX-1 (D-9) is again relevant here. x. Role of A-3 Ashutosh Dutt Mishra in the entire incident is further explained and established by the prosecution through Mark PW6/DX-1 vide which A-3 Ashutosh Dutt Mishra had raised his concern over non release of funds to M/s Mech Enterprises.
xi. It is a matter of record and not disputed by any of the accused persons during trial that all the vouchers and challans for claim of paddy and seeds have been furnished by and on behalf of M/s Mech Enterprises. xii. As per section, Section 106 of Indian Evidence Act, the burden to prove a fact is always upon a person who alleges it and if a person alleges any special circumstance, then as per Indian Evidence Act such burden is always upon such person to discharge, to the contarary, none of the accused persons, as mentioned above, have been able to bring on record anything to the contrary or to shift the onus again upon the prosecution by bringing on record any document to the contray.
182. Thus, in my considered opinion, the prosecution has been able to discharge its burden of proving its case against A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra beyond reasonable doubt. Therefore, A-2 Asong Singsit and A-3 Ashutosh Dutt Mishra are held guilty and convicted for CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors. RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 125 of 126 offences punishable under Sections 120-B and 420 IPC as well as 13 (2) r/w 13 (1) (d) Prevention of Corruption Act, 1988.
183. With regard to role of A-4 Krishan Lal Aggarwal prosecution has not been able to establish the guilt of A-4 Krishan Lal Aggarwal beyond reasonable doubt and due to lack of evidence, therefore, benefit of doubt is given to him. A-4 Krishan Lal Aggarwal is accordingly acquitted of the charge so framed against him.
184. Be put up for consideration on quantum of sentence on 01.09.2023.
Digitally signed by PRASHANT PRASHANT KUMAR
Pronounced in the open court KUMAR Date:
on 28th August, 2023 2023.08.31
12:45:37 +0530
(PRASHANT KUMAR)
SPECIAL JUDGE (PC ACT) (CBI)-07
ROUSE AVENUE COURTS
NEW DELHI
CNR No. DLCT11 - 000099-2019 CBI Vs. V. S. Jafa & Ors.
RC No. 1(A)/1997/CBI/ACU-VI/ND Page No. 126 of 126