Delhi District Court
O.P. Aggarwal S/O Sh. Bhanwar Lal Gupta vs Cbi on 13 September, 2011
IN THE COURT OF SHRI SANJAY SHARMA
ADDITIONAL SESSIONS JUDGE - I (EAST)
KARKARDOOMA COURTS : DELHI
Crl. Revision No. 11/2011
Unique Case ID No. 02402R0 134242011
1. O.P. Aggarwal S/o Sh. Bhanwar Lal Gupta
2. M/s Phosphate India Ltd, Udaipur
...... Revisionists
Versus
CBI
......Respondent
In RC No. 1(A)/97/SIUVIII
U/S 420/471 IPC)
O R D E R :
1. The present revision has been filed against the impugned order of the Ld. Trial Court dt. 14.03.2011 vide which charge was directed to be framed against the petitioners for the offences punishable u/s 420/471 IPC and formal charge dated 19.04.2011 vide which charge was framed against the petitioners as aforesaid.
2. It is worthwhile to mention that the petitioners had Crl. Revision No. 11/2011 1 of 11 earlier filed a revision against the charge framed dated 31.08.2006 and that revision was allowed on the ground that the copies of the documents relied by the CBI were not supplied to the petitioners and the matter was remanded back. Thereafter, the Ld. Trial Court again framed charges against the petitioners vide order dated 14.09.2009 and framed charges vide order dated 05.11.09 for the offences punishable u/s 120 B IPC read with Section 420/511 and Section 471 IPC. That order was also challenged in revision by the petitioners and the said revision was partly allowed vide order dated 22.11.2010 it was held that no offence u/s 120B is made out against the petitioners but remained silent regarding the other offences for which charge was directed to be framed by the Ld. Trial Court. The matter was remanded back with directions to pass fresh order on the point of charge. The Ld. Trial court after re appreciating the facts passed the impugned order under challenge in the present revision.
3. In brief, the facts giving rise to the present revision are that the CBI filed a charge sheet in the above noted case alleging therein that petitioner no. 2 is a proprietorship concern of M/s Hindustan Chemicals Agro Ltd., Udaipur with petitioner no. 1 being its Managing Director from 19871992. It has been alleged that Crl. Revision No. 11/2011 2 of 11 petitioner no. 1 being the Managing Director of petitioner no. 2 company along with one Sh. D.P. Singh, the then Accounts Officer, Fertilizer Industries Coordination Committee (FICC), New Delhi entered into criminal conspiracy with certain unknown persons with intention to cheat the office of FICC during the year 19871992 in the matter of subsidy on the Single Super Phosphate(SSP) Fertilizer on the basis of false invoices and cost data.
4. It has been alleged that petitioner no. 1 in connivance with the staff of FICC and others got prepared 18 forged invoices and submitted the same along with a forwarding letter dated 16.11.1993 to FICC showing purchase of 1,283.934 MT of raw materials for the quarter ending September 1990 and December 1990 for claiming a subsidy to the tune of Rs. 24,75,565/. It was revealed during investigation that SSP was a controlled product and was brought under Retention Prices Scheme (RPS) for the purposes of payment of subsidy. Under the RPS, the difference between the sale price and the retention price was paid as subsidy. The retention price was worked out separately for each manufacturing unit taking into account certain norms relating to consumption etc. The retention price for each unit was to be Crl. Revision No. 11/2011 3 of 11 revised on quarterly basis to reflect the variation in cost of inputs. A circular was issued by the FICC on 28.10.1987 requesting all the SSP manufacturing units to furnish the copies of purchase invoices relating to the procurement of indigenous rock Phosphate which in any case was required to be purchased only from State Selling agencies. Prior to October 1987, the copies of invoices as aforesaid were not required to be submitted to availing the subsidy and the certificate issued by the Chartered Accountant was sufficient for the purpose. However, after the issuance of the said circular, submission of copies of invoices showing purchase of raw material along with cost data of respective period became mandatory.
5. It has been alleged that the petitioner submitted 18 forged invoices for claiming subsidy along with letter dated 16.11.93, in support of cost data relating to quarters ending September 1990 and December 1990 and claimed a subsidy of Rs. 24,75,565/. It is alleged that the copies of invoices so submitted had been submitted by the same firm on earlier occasions which were genuine but with the letter dated 16.11.1993 when these copies were submitted by the petitioner, they were tampered with as regard date of transportation etc. Crl. Revision No. 11/2011 4 of 11
6. I have heard Sh. B.K. Sharma, Ld. Counsel for the petitioners and Sh. S.C. Sharma, Ld. Addl. PP for CBI and have considered the reply filed by him.
7. It was contented by the Ld. Counsel for the petitioners that no offence of cheating is made out against the petitioners as there was no delivery of any valuable security or property to the petitioners that is to say that the subsidy claimed by the petitioners was never paid to them. It was also submitted that similarly, no offence u/s 471 IPC is made out against the petitioners as the entire case of the CBI is based on photocopies of the documents which went under scrutiny by atleast three persons before they were considered by the FICC.
8. On the other hand Ld. Addl. PP for the CBI contended that the intention of the petitioners was clear from the very fact that they deliberately submitted copies of invoices already used by them during previous quarters with certain interpolations and tampering and they thus wanted to cheat FICC. It was submitted that at least an attempt was made by the petitioners to cheat the Government of India. It was also submitted that it was within the Crl. Revision No. 11/2011 5 of 11 knowledge of the petitioners that the copies which they were submitting were not genuine and hence they are liable for the offences charged for.
9. I have considered the submissions made at Bar.
10. Forgery has been defined in Section 463 IPC as "making of false document with intent to cause damage or injury to the public or to any person___." Section 464 IPC further defines making of a false document. It says, "a person is said to make a false document or false electronic record, Firstly, who dishonestly or fraudulently:
(a) makes, signs, seals or executes a document or part of a document,
(b) makes or transmits any electronic record or part of any electronic record,
(c) affixes any digital signature on any electronic record,
(d) makes any mark denoting the execution of the document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed, executed, Crl. Revision No. 11/2011 6 of 11 transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed.
Secondly, who without any lawful authority dishonestly or fraudulently____ alters a document or electronic record in any material record thereof after it has been made, executed or affixed____ Thirdly, who dishonestly or fraudulently causes any person to sign, seal, execute, or alter a document or electronic record___.
11. The entire case of the CBI is based on the fact that the petitioner no. 1 had with his letter dated 16.11.1993 submitted copies of forged invoices. There is absolutely nothing on record to show that those copies alleged to be forged were prepared by the petitioner himself or caused to be prepared by him. Similarly, any tampering or interpolation on those copies has also not been shown to have been done by petitioner no. 1. It is to be noted that petitioner no. 1 is the Managing Director of the company and simply because he signed the forwarding letter does not mean that the accompanying documents were also prepared by him or on his instructions. A cogent and reliable evidence was required to be Crl. Revision No. 11/2011 7 of 11 placed on record for that purpose, which is missing.
12. Ld. Counsel for the petitioner relied upon the judgment delivered in State of Bombay vs Rusy Mistry AIR 1960 Supreme Court 391. In that case, there was interpolation of an inflated figure in a document made by the accused in January 1944 whereas the contract entered into with the Government of India was dated March 02, 1994. The contract was to come into effect retrospectively from November 11, 1943. It was held that "it was impossible to invoke the said date to impute a criminal liability to an accused for the act done by them before the contract was executed. Though, the document might have been forged in anticipation of the execution of the contract with the government, there was nothing on record to prove that fact. The interpolation might have been made for many reasons. The Court was not justified to base a finding on a pure surmise that it might have been done only in anticipation of the accused entering into a contract with the government."
13. Thus, it cannot be said in view of the above decision that even if the invoices termed to be forged were submitted by the petitioner, they did so in anticipation of obtaining the subsidy.
Crl. Revision No. 11/2011 8 of 11 Furthermore, as rightly pointed out by the counsel for the petitioners, the petitioners cannot be charged for the offence of forgery only on the basis of photocopies of the documents. It was submitted that despite several raids conducted on the premises of the petitioners, the original invoices could never be traced. The Ld. Counsel placed reliance on the judgment in State of Himachal vs Dinesh Chander Sharma 2011 Cr.L.J 2418 (HP) wherein photocopies of the copies certified by the respondent who was a practicing advocate were not relied upon and it was held that no presumption or weight could be attached to it for any purpose including admission.
14. Hence, in my view, taking note of the above law, I find that the Ld. Trial Court erred in framing charge against the accused for the offence punishable u/s 420/471 IPC.
15. Similarly, I also agree to the second contention of the ld. Counsel for the petitioner regarding offence punishable u/s 420 IPC. The said offence presupposes transfer of valuable security of property by dishonest inducement. In the instant case, no valuable security, that is subsidy in this case, was ever paid to the petitioner. The observations of the Hon'ble High Court of Delhi in Crl. Revision No. 11/2011 9 of 11 this regard may be mentioned. In Alpana Das vs CBI 132 (2006) DLT 85 it was held that "charge u/s 420 IPC was not made out because there was no delivery of any valuable security or any property." Ld. Counsel further relied upon the judgment in People's Patriotic Front vs K.K. Birla & Ors. 23 (1983) DLT 499 (Delhi) wherein it was held that the offences punishable under IPC that is u/s 109, 120B and 511 go with the main offence. At the most if the version of the CBI is to be believed, the petitioners can at best be said to have made preparations for committing the offence of cheating which is short of attempt and hence not punishable (Reliance placed by Ld. Counsel on AIR 1923 Patna
307).
16. Hence, in view thereof, I am of the opinion that no offence u/s 120B is disclosed against the petitioners.
17. In view of the foregoing discussion, I am of the view that the Ld. Trial Court did not consider the facts and law in correct perspective and fell in error in framing the charges against the petitioners. The revision is accordingly allowed and the impugned order dated 14.03.2011 directing framing of charge and the formal charge dated 19.04.2011 are hereby set aside.
Crl. Revision No. 11/2011 10 of 11 The petitioners are accordingly discharged of the offences punishable u/s 420 IPC and 471 IPC. They are set at liberty. Their personal bonds and surety bonds are discharged.
18. Revision file be consigned to record room. TCR be sent back to the Ld. Trial court along with a copy of this order. ANNOUNCED IN OPEN COURT th ON 13 day of September 2011 (SANJAY SHARMA) ADDL. SESSIONS JUDGE(EAST) I KARKARDOOMA COURTS : DELHI Crl. Revision No. 11/2011 11 of 11 Cr. Rev. No. 11/2011 O.P. Aggarwal Vs CBI 13.09.2011 Present: Mohd. Irfan, Ld. Counsel for the revisionist.
Ld. Addl. PP for the CBI.
Vide separate order passed today, the revision is allowed and the impugned order dated 14.03.2011 directing framing of charge and the formal charge dated 19.04.2011 have been set aside.
The petitioners have been discharged of the offences punishable u/s 420 IPC and 471 IPC and are set at liberty. Their personal bonds and surety bonds are discharged.
Revision file be consigned to record room and TCR be sent back to the Ld. Trial court along with a copy of the order.
(SANJAY SHARMA)
ASJ-I (East)/13.09.2011
Crl. Revision No. 11/2011 12 of 11