Delhi District Court
In Re vs Moti Lal Mathur on 20 December, 2013
IN THE COURT OF SH. RAKESH SYAL, SPECIAL JUDGE, (PC ACT)
& (CBI)-03, SOUTH WEST DISTRICT, DWARKA, NEW DELHI
CBI Case No. 30/12
RC No. 2(E)/2001/EOW-I/DLI
In re:
Central Bureau of Investigation
Vs.
1. Moti Lal Mathur,
S/o Late Shri B.L. Mathur,
R/o Pocket A-10/74-A
Kalkaji Ext.
New Delhi-19.
2. Yash Pal Babbar,
S/o Pishori Lal Babbar
R/o C-113, Sarita Vihar,
New Delhi-76
3. Sh. Yagya Dutt, (P.O.)
R/o 1716, Gali Piauwali, Dariba,
Delhi.
4. Devender Kumar Garg,
S/o Late Shri Chananmal,
R/o 383, Phase-II, Model Town,
Bhatinda, Punjab
5. Sh. Anil Maheshwari,
S/o Sh. Sheo Prasad Maheshwari,
R/o 1716, Gali Piauwali, Dariba,
Delhi.
6. Arvind Kumar Sharma,
CBI Case No. 30/12 1 of 50
S/o Shri Shambhu Nath Sharma,
R/o Flat No. 17, Opposite Dushhera Park,
Jwala Heri, Paschim Vihar,
New Delhi-63.
Date of Institution of Case : 30-01-2003
Date on which Judgment was reserved : 18-12-2013
Date on which Judgment was delivered : 20-12-2013
JUDGMENT
Facts 1.1 This case was registered on 24-01-2001 on complaint dated 29-09-2000 of Sh. K.B. Mahapatra, CVO, National Insurance Company Ltd. (hereinafter referred to as NIC), Calcutta alleging that during the year 1998 accused No. 2 Sh. Yash Pal Babbar, Divisional Manager and accused No. 1 Sh. Moti Lal Mathur, the then Administrative Officer both of NIC, Divisional Office (hereinafter referred to as DO)-XIII, New Delhi entered into a criminal conspiracy with private persons/ surveyors/ tracers namely accused No. 3 Yagya Dutt, Prop. M/s Prashant Industrial Engineers, Shop no. 3499, Chawri Bazar, Delhi 6, accused No. 4 Devender Kumar Garg, Surveyor, M/s SBK Enterprises, Raja House, Janta Bhawan, Sirsa- 125 005, accused No. 6 Arvind Kumar Sharma, Prop. M/s Pooja International GH-2/122B, Ankur Apartment, Paschim Vihar, New Delhi 63 and K.V. Juneja employee of M/s Pooja International and obtained a marine cargo claim of Rs.2,50,477/- in favour of M/s Prashant Industrial Engineers from NIC, DO-XIII, New Delhi on the basis of forged and bogus documents.
1.2 Investigation was conducted during which, inter-alia, statement of witnesses were recorded, documents were seized and specimen CBI Case No. 30/12 2 of 50 handwriting/signature of suspects and questioned documents were got examined from the CFSL.
1.3.1 Investigation revealed as under:-
1.3.2 Accused No. 3 Yagya Dutt (Consignor) took an open marine policy no. 360600/ 4400361/98 on 08-09-1998 for Rs. 20 lacs from NIC, DO-
XIII, New Delhi for transit of Industrial resin from Delhi to anywhere in India. The policy was booked under the agency code no. 305/003 of Sh. Naveen Kumar Garg, Agent, NIC, DO-XIII. A consignment of Industrial resin worth Rs. 4,22,412/- was purportedly dispatched by M/s Prashant Industrial Engineers the insured to M/s Gem Chemicals, Opp. Bus Stand, Sirsa vide Goods Receipt (hereinafter referred to as GR) No. 81395 dt. 03-10-1998 of M/s Amar Road Carrier Pvt. Ltd., 4215, Khanna Market, Tis Hazari, Delhi. The consignee M/s Gems Chemicals intimated vide their letter dt. 06-10-1998 to NIC, Sirsa regarding damage to the consignment and requested for appointment of surveyor. M/s SBK Enterprises, was deputed for survey by NIC, Sirsa. The surveyor submitted his report on 12-10-1998. This bogus survey report was sent to DO-XIII, New Delhi by the Divisional Manager, NIC, DO-Sirsa vide letter dt. 12-10-1998.
1.3.3 The claim was processed and recommended by accused No. 1 Moti Lal Mathur, and approved by accused No. 2 Yash Pal Babbar, for Rs. 2,50,477/-. The claim amount was received by the insured vide cheque no. 245600 dated 12-11-1998 of Indian Overseas Bank, R.K. Puram, New Delhi. The proceeds of the claim cheque of Rs. 2,50,477/- were credited into Current Account No. 841 of accused No. 3 Yagya Dutt in Vaish Cooperative New Bank, Chawri Bazar, Delhi on 17-11-1998. This current account no. 841 was introduced by Manish Maheshwari of M/s Supreme Industrial Corp., 1716, Gali CBI Case No. 30/12 3 of 50 Piauwali, Dariba, Delhi 6, account holder of account no. 753, whose other authorized signatory is accused No. 5 Anil Maheshwari. 1.3.4 Accused No. 3 Yagya Dutt was an employee of M/s Supreme Industrial Corporation. The address of M/s Prashant Industrial Engineers as mentioned in account opening form of A/c no. 841 is 1716, Gali Piauwali, Dariba, Delhi 6, which is also the address of M/s Supreme Industrial Corporation. Accused No. 3 Yagya Dutt was not found at the above given address. M/s Prashant Industrial Engineers, the insured firm was not existing at the given address during the year 1998.
1.3.5 Accused No. 6 Arvind Kumar Sharma, Prop. M/s Pooja International was appointed as tracer/ investigator. He submitted his report on 28-10-1998 which was received by accused No. 1 Moti Lal Mathur. A TA/DA bill of Pooja International, vide invoice no. 876 dated 28-10-1998, was submitted by K.V. Juneja in the NIC, DO-XIII, New Delhi. 1.3.6 Subsequently, M/s Pooja International was appointed as recovery agent. The documents for recovery were received by K.V. Juneja, an employee of Pooja International vide letter dated 30-11-1998. A recovery amount of Rs. 10,000/- vide pay order no. 521128 dated 11-12-1998 of Citi Bank, Connaught Place, New Delhi (collection no. 9455 dated 29-12-1998), which was issued from Current Account no. 413301009 of M/s Supreme Industrial Corporation, the account holder of which is accused No. 5 Anil Maheshwari, was deposited on 29-12-1998. A bill, vide invoice no. 938 dated 15-12-1998, of M/s Pooja International was submitted by K.V. Juneja to Divisional Manager, NIC, DO-XIII, New Delhi for the payment of recovery fee. An amount of Rs. 1550/- was paid by NIC, as recovery fee to the recovery agent, accused No. 6 Arvind Kumar Sharma of M/s Pooja International. This CBI Case No. 30/12 4 of 50 was credited in current account no. 279 of OBC, Paschim Vihar, New Delhi on 22.01.1999.
1.3.7 Though the confirmation of appointment of surveyor is available on file, there is no mention about the date of appointment. The letter dated 12-10-1998 of NIC, Sirsa DO to NIC DO-XIII, Delhi intimating the appointment of the Surveyor was found to be fake. Neither the consignee M/s Gem Chemicals, Sirsa nor the transporter M/s Amar Road Carrier Pvt. Ltd. was existing at the given address during the relevant period. The account of accused No. 3 Yagya Dutt, the account holder of M/s Prashant Electrical Engneers with Vaish Cooperative New Bank, Chawri Bazar was introduced by M/s Supreme Industrial Corporation of accused No. 5 Anil Maheshwari. Accused No. 3 Yagya Dutt was an employee of accused No. 5 Anil Maheshwari in M/s Supreme Industrial Corporation. The claim was processed and got sanctioned on the basis of forged and fabricated documents, in connivance with accused No. 3 Yagya Dutt, accused No. 5 Anil Maheshwari, accused No. 6 A.K. Sharma, K.V. Juneja, accused No. 1 Moti Lal Mathur and accused No. 2 Yash Pal Babbar, and faciliated accused No. 3 Yagya Dutt of M/s Prashant Industrial Engineers to receive an amount of Rs.2,50,477/- from NIC, New Delhi and thereby caused a loss of Rs.2,50,477/- to NIC, New Delhi and wrongful gain to the accused persons.
1.4 On completion of investigation, a charge sheet U/s 120 B r/w sections 420, 467,468 and 471 IPC and Sec. 13 (2) r/w section 13 (1) (d) of Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act), and substantive offences thereof was filed against accused No. 3 Yagya Dutt, accused No.1 Moti Lal Mathur, accused No.2 Yash Pal Babbar, accused No. 5 Anil Maheshwari, accused No. 6 Arvind Kumar Sharma and accused No. 4 CBI Case No. 30/12 5 of 50 Devender Kumar Garg. None of the accused was arrested. 1.5 Accused No. 3 Yagya Dutt evaded appearance in the court, and on 27-01-2004 he was declared P.O. 1.6 It is may be mentioned that as per the documents/letter heads of the insured/consignee Prashant Industrial Engineers, as available in the claim file, the name of the said consignee has been mentioned as "Prashant Industrial Engineers". Accused No. 3 Yagya Dutt is alleged to be the proprietor of the same. However, the parties as well as the witnesses have at many places/times referred to the same as "M/s Prashant Industrial Engineers". There is no dispute that any reference to "M/s Prashant Industrial Engineers" means "Prashant Industrial Engineers." Thus, the consignee is being hereinafter referred to as "Prashant Industrial Engineers". Same is the case with respect to "Gems Chemicals", "Amar Road Carriers (P) Ltd.", "S.B.K Enterprises" and "Pooja International" which have been, at many places/times, referred to by the parties and the witnesses as "M/s Gems Chemicals", "M/s Amar Road Carriers (P) Ltd.", "M/s S.B.K Enterprises" and "M/s Pooja International".
2.1 Copies of documents were supplied to the accused persons in terms of section 207 Cr.P.C.
Charges 3.1 Vide order dated 17-02-2004 of my Ld. Predecessor, charges were framed against the accused persons as under :-
a) against all the present accused persons, u/s 120-B r/w section 420/467/468/471 IPC and u/s 13 (2) r/w section 13 (1) (d) of the PC Act,
b) against accused No. 1, Moti Lal Mathur u/s 13 (2) r/w section 13 (1) (d) of the PC Act, CBI Case No. 30/12 6 of 50
c) against accused No. 2, Yash Pal Babbar u/s 13 (2) r/w section 13 (1)
(d) of the PC Act,
d) against accused No. 4, Devinder Kumar Garg u/s 468 IPC,
e) against accused No. 6, Arvind Kumar Sharma u/s 468 IPC.
The accused persons pleaded not guilty to the charges and claimed trial. Prosecution Evidence 4.1 PW 1 Sh. Kruti Bas Mahapatra, Chief Vigilance Officer, NIC on whose instructions, investigation was carried out, has filed the complaint dated 29-09-2000, Ex.PW1/B with the CBI. PW 2 Sh Akhilesh Kumar Seth, PW 3 Sh Anil Kumar Tiwari and PW 11 Sh Amrit Lal Gambhir, all Officers of Vigilance Deptt. of NIC, had conducted the investigation during which they seized the claim file of Prashant Industrial Engineers, Ex.PW2/B and gave the report, Ex.PW1/A. 4.2 PW 7 Sh. P.K. Aggarwal, Admn. Officer, Vigilance Deptt., NIC has handed over 9 marine claim files to the CBI vide seizure memo, Ex.PW7/A and certain other documents vide letter dated 16-09-2002, Ex.PW7/B. PW 9 Sh. C.D. Ram, Asstt., NIC, DO-XIII, has handed over disbursement vouchers to the IO vide seizure memo, Ex.PW9/A. 4.3 PW 5 Sh. Vinod Kumar, Sr. Assistant, NIC, DO-XIII, has testified about the claim files, Ex.PW2/A and Ex.PW2/B and identified the signature/handwriting of accused No. 1 and accused No. 2 on various documents viz. the notings, Ex.PW5/A and Ex.PW5/B, Report dated 29-12-1998, Ex.PW5/C of NIC regarding recovery amount, disbursement voucher dated 12-11-1998, Ex.PW5/D regarding payment of claim, Investigation Report dated 25-10-1998, Ex.PW5/E of Pooja International, Cheque dated 22-11-1998, Ex.PW5/F, cover note, Ex.PW5/G, letter dt.
CBI Case No. 30/12 7 of 50 27-10-98, Ex.PW5/H of M/s Prashant Industrial Engineers, the three letters of declarations, Ex.PW5/J to Ex.PW5/L and the Policy, Ex.PW5/M. 4.4 PW 6 Smt. Vandana, Divisional Manager, DO-XIII and PW 8 Sh. R.C. Sood, Deputy Manager, Regional Office, NIC have generally deposed about documentation and procedure for settlement of marine claim and deficiencies in the claim file, Ex.PW2/A. 4.5 PW 23 Sh. Sushant Rohtagi has deposed about non-existence of Prashant Industrial Engineers. PW 4 Sh. Dwarka Das, PW 14 Sh. Sunil Kumar and PW 16 H.C. Jilajeet Singh have deposed about non-existence of Amar Road Lines. PW 12 Sh. Amarjeet Singh, PW 13 Sh. Rajender Kumar Narula, PW 18 Sh. Mahender Singh, PW 20 Sh. Hari Narayan Sharma and PW 21 Sh. Yatender Sharma have deposed about non-existence of Gem Chemicals.
4.6 PW 25 Naveen Garg is agent of NIC who has testified, inter-alia, about his never dealing with the policy of Prashant Industrial Engineers and accused No. 1 Moti Lal Mathur mentioning his code number in the above policy without his knowledge.
4.7 PW 22 Sh. P.K. Sharma, Divisional Manager, NIC, Sirsa, deposed, inter-alia, that letter dated 06-10-98, Ex.PW2/B was not received by them and letter dt. 12-10-98, Ex. PW2/B, purportedly of NIC, Sirsa was not issued by them.
4.8 PW 10 Sh. R. Vaidyanathan, Chief Manager, Indian Overseas Bank, where NIC was having Current Accounts No. 1194 and 1197 has deposed about handing over of the cheques vide letter dt. 04-05-2002, Ex.PW10/A, Statement of Account, Ex.PW10/B and cheque No. 245600, dt. 12-11-1998, Ex. PW5/F in favour of Prashant Industrial Engineers. PW 15 Sh.
CBI Case No. 30/12 8 of 50 S.N. Chaudhary from Oriental Bank of Commerce, Paschimi Vihar, New Delhi has testified about letter, dt. 26-09-2002, Ex.PW15/A vide which copies of Account Opening Form and Statement of Account of Current Account No. 279 of Pooja International were sent to CBI, seizure memo, dt. 20-05-2002, Ex.PW15/A1 vide which original Account Opening Form of Pooja International was seized by Sh. R.K. Bakhta, DSP, CBI, Account Opening Form, dt. 23-05-96 along with specimen signature card, Ex.PW15/A-2 of Pooja International and true copy of statement of account of Pooja International for the period 1998 to 23-12-2000, Ex.PW15/A-3. PW17 Sh. Mohit Aggarwal of Vaishya Cooperative New Bank, Chawri Bazar, Delhi has stated about letter dated 17-09-2002, Ex.PW17/A vide which documents pertaining to Account of Prashant Industrial Engineers were handed over to CBI, seizure memo, dt. 18-09-2002, Ex. 17/A1, Account Opening Form, Ex. PW17/B of Prashant Industrial Engineers, Specimen Signatures Card, Ex.PW17/C, Statement of Account, Ex.PW17/D and Account Opening Form of Introducer, Ex. PW17/E. 4.9 PW 19 Insp. S.L. Garg, PW 24 Sh. Brij Mohan Pandit and PW 26 Insp. B.S. Bisht are the part IOs, PW 27 Sh. Jyoti Kumar was the initial IO and PW 28 Sh. R.P. Kaushal is the main IO.
Statement of Accused Persons u/s 313 Cr.P.C.
5.1. Statement of all the accused persons were recorded u/s 313 Cr. P.C wherein they have generally denied the incriminating evidence that has come against them and stated that they have been falsely implicated in this case.
5.2 Accused No.1 Moti Lal Mathur also stated, inter-alia, that the underwriting papers and the accompanying documents, though existing in the claim files at the time of processing of the claim are missing and have not CBI Case No. 30/12 9 of 50 been produced by the prosecution. He has only processed this claim in his official discharge of duty. He was not required to physically verify either the site or the authenticity of any party. All reports found in the claim file are by surveyors who are empaneled with insurance company and therefore there was no occasion for him to doubt the authenticity of either their reports or the accompanying documents contained in the claim file. 5.3 Accused No. 2 Yash Pal Babbar further stated, inter-alia, that when the claim documents were put before him for approval by his subordinates, surveyor's report, verification report and other documents were there in the file and there was no question of doubt. He had passed the claim with due care and utmost faith and rules and regulations of the company were followed by him. He never intended to cause any wrongful gain to anyone or himself. He had sanctioned the claim within his financial powers by following rules and regulations. It was not his duty to verify the claim documents, consignment of goods, transporter, consignor or consignee. 5.4 Accused No. 4 Devender Kumar Garg further stated that he has been falsely involved in this case due to improper and inappropriate zeal of the investigating officer and imperfect investigation. There is absolutely no evidence against him.
5.5 Accused No.5 Anil Maheshwari also stated that he is falsely involved in this case because of improper investigation. The IO did not see as to who had introduced the account of M/s Prashant Industrial Engineers. His partner Sh. Manish Maheshwari was never interrogated. 5.6 Accused No.6 Arvind Kumar Sharma further stated that he runs a small firm engaged in recovery, tracing and investigation. The nature of job compels him to employ persons to assist him. In this case one of his CBI Case No. 30/12 10 of 50 employee namely Mr. Gopal had handled the entire assignments. Mr. Gopal left his job sometime in the year 2000. If only investigating officer had brought the matter to his attention, he would have presented the concerned employee, who then would have clarified the position in specific details. The report was released from his office and he had no cause to believe any part of it to be forged or fabricated.
Defence Evidence 6.1 Accused No.1 Moti Lal Mathur and accused No. 2 Yash Pal Babbar have examined two witnesses in their defence namely DW 1 Shri Dinesh Gupta and DW 2 Ms Yamini Luthra besides themselves appearing as witnesses u/s 315 Cr. P.C r/w section 21 of PC Act.
6.2. DW 1 Shri Dinesh Gupta, Assistant Manager, DO-XIII, NIC, has testified about the destruction of the Claim Intimation Register for the year 1997-98 and underwriting docket of the policies in terms of circular dated 23.4.2013 6.3. DW 2 Ms Yamini Luthra, Administrative Officer, Regional Office, NIC, New Delhi also testified about the destruction of Internal Audit Report of DO-XIII for the years 1996-99, Statutory Audit Reports of DO-XIII for the year 1996-99, confidential report of accused No.1 Moti Lal Mathur and accused No. 2 Yash Pal Babbar for the years 1996-98 and the cheque dishonour register for the year 1997-98 in terms of company's circular dated 23-4-2013. She has also deposed about the Claims Procedural Manual, Ex. DW2/C being applicable at the relevant time.
6.4. DW 3 Yash Pal Babbar has testified, inter-alia, about the procedure followed in settlement of claims. He further stated that he had sanctioned the claim within his financial powers by following all rules and CBI Case No. 30/12 11 of 50 regulations of NIC. It was not his duty to verify the claim documents or the consignments of goods. He has always relied upon the reports of the surveyor/recovery agents/tracer for verification and documents submitted by the claimant, in utmost good faith on the recommendations of his subordinate. He had complied with the Claim Procedural Manual, Ex. DW2/C. In the claims settled by him no irregularity was found by any audit team. As per the Charter, the claim is to be settled within the stipulated time and if formalities were completed, the payment was to be made within 3 days, otherwise it would be considered as dereliction of duty. He had not met Yagya Dutt or his agent/representative or the recovery agent/tracer, surveyors or verifiers. 6.5 DW 4 Moti Lal Mathur had testified, inter-alia, about the procedure followed in settlement of marine claims. He further deposed that as Administrative Officer he had no role in the appointment of the verifiers . He was not required to verify the Surveyor's report, Verifier's report, the existence of Consignors/Consignees, the consignment or the Transporter. He was only required to check that the surveyor's report and verifier's report were in consonance with the insurance particulars, the premium has been collected, the claim was covered within the scope of the Insurance Policy and whether details of packing if any, were given in the proposal form. As per the policy, within 3 days of the completion of the required documents, the claim was to be paid.
Arguments on behalf of CBI 7.1 Sh. Manoj Shukla, Ld P.P. for CBI has submitted that the prosecution has been able to prove its case beyond any reasonable doubt. He argues that PW 23 Sh Sushant Rohtagi and PW 26 Sh B.S. Bisht have proved the non existence of Prashant International Engineers. PW 12 Sh Amarjeet CBI Case No. 30/12 12 of 50 Singh , PW 13 Sh Rajender Kumar Narula, PW 18 Sh Mahender Singh, PW 20 Sh Hari Narayan Sharma, PW 21 Sh Yatender Sharma and PW 24 Sh B.M. Pandit have proved the non existence of Gems Chemicals. PW 4 Sh Dwarka Das, PW 14 Sh Sunil Kumar, PW 16 HC Jilajeet Singh and PW 19 Sh S.L. Garg have proved the non existence of Amar Road Carriers Pvt Ltd. PW 25 Shri Naveen Garg, shown as a agent in the present policy, has proved that his name was used by accused No. 1 Moti Lal Mathur without his knowledge. PW 22 Sh P.K. Sharma has proved that no surveyor was appointed and no letter was sent by Sirsa office of NIC to DO-XIII. PW 7 Sh P.K. Aggarwal and PW9 Sh C.D. Ram have proved the seizure of files/documents. PW 5 Sh Vinod Kumar has identified the handwriting of accused No.1 Moti Lal Mathur and accused No. 2 Yash Pal Babbar in the claim files. PW 6 Ms Vandana and PW 8 Sh R.C. Sood have deposed about the procedures followed by NIC for settlement of marine claims. PW 10 Sh R. Vaidyanathan, PW 15 Sh S.N. Chaudhari and PW 17 Sh Mohit Aggarwal who are bank officers have also supported the prosecution version.
Arguments on behalf of Accused No. 1, Moti Lal Mathur. 8.1 Sh Shaju Francis, Ld. Counsel for accused No.1 Moti Lal Mathur has argued that the businesses of insurance company is based on utmost good faith and no physical verification of the claim is made by the officers/staff of NIC. In the present case, all the requirements of the Claims Procedural Manual have been complied with. He further argued that the best evidence with regard to the existence of Amar Road Carriers Pvt. Ltd. would have been record of the Registrar of Companies but the same has not been produced by the prosecution. The prosecution has also not produced the directory of Khanna Market Traders Association or the municipal record with regard to the CBI Case No. 30/12 13 of 50 addresses of the above transporter and thus the testimony of PW4 Sh Dwarka Das, PW 14 Sh Sunil Kumar and PW 16 HC Jilajeet Singh is not sufficient to prove non existence of the said transporter. Similarly no verification was done by the prosecution with regard to the telephone number of Gems Chemicals which is available on record or from the Income Tax department regarding the existence of Gems Chemicals and thus the statements of PW 12 Sh Amarjeet Singh, PW 13 Rajender Kumar Narula, PW 18 Sh Mahender Singh, PW 20 Sh Hari Narayan Sharma and PW 21 Sh Yatender Sharma are not sufficient to prove the non existence of Gems Chemicals. He also argues that the prosecution has also not produced the dispatch register of the Sirsa office of NIC to prove that no letter was sent by them and thus oral testimony of PW Sh 22 P.K. Sharma is not sufficient to prove that no letter was sent by them. He further argued that field verification was not part of duty of accused No.1 Moti Lal Mathur, who has relied upon his subordinates and reports of surveyors and verifiers. He had no means to check the genuineness of the documents placed in the file. He has recommended the claim as per the claim procedural manual and thus had no role in any illegal activity. The prosecution has thus failed to prove its case against the said accused.
Arguments on behalf of Accused No. 2, Yash Pal Babbar. 8.2 Sh Umesh Sinha, Ld. Counsel for accused No. 2 Yash Pal Babbar has argued that there is delay in registration of FIR and no preliminary inquiry, as required by CBI manual, was conducted. He further argued that CBI could not have filed 9 charge sheet out of one FIR. There is no statutory presumption against accused in this case. He also argued that underwriting documents and complete record regarding the present claim was not seized/produced, before the court, no inventory of the documents seized was CBI Case No. 30/12 14 of 50 prepared and the files seized were not sealed to maintain the sanctity of the preservation of the record. No effort was made by CBI to check the existence of Amar Road Carriers Pvt ltd from the Registrar of Companies. No verification was made from the Traders Association of Khanna Market and thus testimony of other shopkeepers who cannot be expected to know all other shopkeepers, is of no use. PW 16 HC Jilajeet Singh also cannot be expected to know the existence of transporters in the year 1998 since he was posted at PP Tis Hazari in the year 2001. He also argued that claim intimation register, surveyor appointment register, dispatch register etc of Sirsa office of NIC were not seized/produced and therefore, mere denial of letter dated 12-10-98 of Sirsa office by PW22 Sh P.K. Sharma is not enough to prove the non existence of said letter. He also argued that the prosecution has also not examined Lalit Chawla, owner of R.K. Electricals at 3499, Chawri Bazar, Delhi, who was the best witness to depose about the occupants of said building. No investigation was done with regard to the telephone numbers of Prashant Industrial Engineers or with respect to Amar Road Carriers or Gems Chemicals, and thus the prosecution has withheld the best evidence. He has finally argued that accused No.2 Yash Pal Babbar was Head of the Office wherein about 20-25 officers/officials were working under him. He had sanctioned the claim only on the basis of the recommendations of his subordinates, documents placed on file and the report of surveyors, verifiers etc. Ld. counsel has also relied upon Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif, AIR 1968 (SC) 1413, J. Ramulu Vs. State of A.P., AIR 2008 SC 1505, P.K. Narayanan Vs. State of Kerala, 1995 (1) SCC 142, K.R. Purushothaman Vs. State of Kerala, 2005 Cri. L. J. 4648, Rita Handa Vs. CBI, 152 (2008) DLT 428, Anil Kumar Bose Vs. State of Bihar, AIR 1974 CBI Case No. 30/12 15 of 50 SC 1560, State (G.N.C.T) of Delhi Vs. Saqib Rahman @ Mansoori and Ors, 2012 VII AD (Delhi) 12, Ashok Narang Vs. State, 2012 II AD (Delhi) 481, Surendra Singh Vs. State of UP, 2010 Cri. L. J. 2258, Shranappa Mutyappa Halke Vs. State of Maharastra, AIR 1964 SC 1357, Surajit Sarkar Vs. State of West Bengal, AIR 2013 SC 807, C.K. Jaffer Sharief Vs. State (Through CBI), AIR 2013 SC 48, Subramanaian Swamy Vs. A. Raja, AIR 2012 SC 3336, S.V.L. Murthy Vs. State (Rep. By CBI Hyderabad) 2009 Laws (SC) 5-57, Sreedharan A. Vs. Dy. S.P. of Police, 2011 Laws (Ker) 4-117, C. Chenga Reddy and others Vs. State of Andhra Pradesh, AIR 1996 SC 3390, Sayeed MRO office Leeza Mandal Mahaboob Nagar Vs. State of A.P. through ACB, 2012 (2) ALD (Cri) 469 and V. Dilip Kumar Vs. State rep. by Dy. S.P. ACB/CBI Chennai, MANU/TN/0503/2012. He finally submits that prosecution has failed to prove its case against accused No. 2 Yash Pal Babbar.
Arguments on behalf of Accused No. 4, Devender Kumar Garg 8.3 Sh. R.K. Kohli counsel for accused No. 4 Devender Kumar Garg has argued that the said accused was not proprietor of SBK Enterprises and has nothing to do with the said firm. No evidence whatsoever has come on record to connect the said accused with the report of SBK Enterprises. Only PW 2 Sh Akhilesh Kumar Seth has stated that they came to know during inquiry that Devender Kumar Garg was the owner of SBK Enterprises, which is a hearsay evidence. As per the evidence on record PW 2 Sh Akhilesh Kumar Seth, PW 3 Sh Anil Kumar Tiwari and PW 24 Sh B.M. Pandit have not met accused No. 4 Devender Kumar Garg. PW 2 Sh Akhilesh Kumar Seth has stated that there was no surveyor by the name of SBK Enterprises. However, the panel of surveyors being documented information was not produced and CBI Case No. 30/12 16 of 50 thus the said fact cannot be proved by oral testimony. He further contended that PW 27 Sh Jyoti Kumar also stated that he has not collected any documents which had signatures/initials or handwriting of accused No. 4 Devender Kumar Garg. It is also argued that contrary to the version of PW 22 Sh P.K. Sharma, PW 28 Sh R.P. Kaushal has stated that accused Devender Kumar Garg was on the panel of NIC. It shows that SBK Enterprises and accused Devender Kumar Garg had no relation. The prosecution has not produced the actual functionaries of SBK Enterprises and no inquiry was made from IRDA with respect to the address given on the letter head of SBK Enterprises. Ld. Counsel has further argued that in offences of conspiracy, though direct evidence may not be available, prosecution is still required to prove its case through circumstantial evidence. Conspiracy cannot be assumed and it cannot be based on conjectures. He argues that in the present case, there is no evidence regarding the presence of accused persons together or any communication between them to show that they had a meeting of mind or that they agreed to commit any illegal act. The prosecution has also not been able to lead any evidence to show that there was any mutual interest of the accused persons and there has been no evidence regarding trail of money after it was credited in the account of accused No.3 Yagya Dutt. Prosecution has also not been able to show as to who was the Chief propounder of the conspiracy. In this regard Ld. Counsel has relied upon Subramanian Swamy Vs. A. Raja, (supra), Inspector of Police , Tamil Nadu Vs. John David, 2011 Cri LJ 3366, Hanuman Govind, Nargundkar and Another Vs. State of M.P., 1953 Cri LJ 129 SC, Sharad Biridhichand Sarda Vs. State of Maharashtra, 1984 Cri LJ 1738, K.R. Purushothaman Vs. State of Kerala, (supra), Rabindra Kumar Dey Vs. CBI Case No. 30/12 17 of 50 State of Orissa, 1977 AIR 170, S.L. Goswami Vs. State of Madhya Pradesh, 1972 AIR 716, R. Venkatakrishnan Vs. Central Bureau of Investigation, Criminal Appeal No. 76 of 2004 and State of Tamil Nadu through Superintendent of Police, CBI/SIT Vs. Nalini and 25 others, decided on 11-05-1999. Ld. counsel finally submits that the said accused is entitled for acquittal as prosecution has failed to prove its case against the said accused.
Arguments on behalf of Accused No. 5, Anil Maheshwari 8.4 Sh C.L. Gupta counsel for accused No. 5 Anil Maheshwari has argued that the only allegation against the said accused is that he has introduced the account of Yagya Dutt and that the recovery amount of Rs 10,000/- is shown to have been taken from the account of Supreme Industrial Corporation. He further argued that as per the record, there were two partners of Supreme Industrial Corporation i.e. accused No. 5 Anil Maheshwari and Manish Maheshwari. The account of accused No. 3 Yagya Dutt was introduced by Manish Maheshwari. Thus, accused No. 5 Anil Maheshwari cannot be held liable for such introduction by his partner. Further, there is no evidence that cheque in respect of recovery amount was got prepared on the instructions of accused Anil Maheshwari. Since Manish Maheshwari has introduced the account of Yagya Dutt, it is natural and likely that he would have got the said cheque prepared. Thus, there is no evidence to link accused No. 5 Anil Maheshwari with accused No. 3 Yagya Dutt and in any case if two views are possible, the view in favour of accused is to be taken. He thus submits that accused No. 5 Anil Maheshwari is entitled for acquittal. Arguments on behalf of Accused No. 6, Arvind Kumar Sharma 8.5 Sh R.K. Kohli counsel for accused No. 6 Arvind Kumar Sharma CBI Case No. 30/12 18 of 50 argued that accused Arvind Sharma was appointed verifier and recovery agent. However, the verification report though submitted by his office was not signed by him. He further argued that since it is not even the case of the prosecution that the verification report of Pooja International was claimed to have been made or executed under the signatures or by the authority of somebody else, therefore, section 468 IPC is not attracted in the present case as the report of Pooja International is not a false document in terms of section 464 IPC. He has relied upon Md. Ibrahim and Ors. Vs. State of Bihar and Anr., 2010 Cri LJ 2223, C. Parthasarthy Vs. Bulls and Bears (Stock Brokers) Ltd., Criminal M.C. No. 4200/2002, decided on 04-01-2013 and A.S. Krishnan And Anr. Vs. State of Kerala, Appeal (Crl.) 916 of 1997, decided on 17-03-2004, to argue that since accused No. 6 Arvind Kumar Sharma has not made or executed any document claiming to be someone else or authorized by someone else, he cannot be said to have committed forgery. Ld. Counsel further argues that the report of accused No. 4 Devender Kumar Garg is based on inputs given by his employee. Thus, even if contents of the said report are wrong, the said accused has no knowledge of the same and he cannot be considered dishonest or fraudulent. He has argued that the employee of accused No. 6 Arvind Kumar Sharma has carried out the investigation. Nobody contacted accused No. 6 Arvind Kumar Sharma to ascertain as to who had signed the report. There is no evidence of any knowledge on the part of said accused to believe that the report being issued from his office was not factually correct. Thus, he cannot be held criminally liable. There is also no evidence of his conspiring with any other accused. The conspiracy can be proved by circumstances but it cannot be assumed or based on conjectures. He further contends that the aspect of recovery made CBI Case No. 30/12 19 of 50 by Pooja International is mentioned in charge sheet only but the same is not mentioned either in the complaint or in the charges framed against the said accused. Ld. Counsel also relied upon judgments cited by him on behalf of accused No. 4 Devender Kumar Garg with respect to conspiracy to argue that there is no evidence to show that accused No. 6 Arvind Kumar Sharma has entered into conspiracy with any accused person.
8.6 The general propositions of law laid down in the judgments cited by the parties have not been disputed.
Points for Determination.
9.1 I have heard all the parties and have also perused the record. In the instant case as per the charges framed, the following points are required to be determined:-
A. Charge u/s 120-B r/w Section 420, 467, 468, 471 IPC and Section 13 (2) r/w Section 13 (1) (d) of the PC Act, against all the accused persons namely accused No. 1, Moti Lal Mathur, accused No. 2, Yash Pal Babbar, accused No. 4, Devender Kumar Garg, accused No. 5, Anil Maheshwari and accused No. 6, Arvind Kumar Sharma.
i. Whether during the year 1998-99, at New Delhi and other places, all the accused persons namely accused No. 1, Moti Lal Mathur, accused No. 2, Yash Pal Babbar, accused No. 4, Devender Kumar Garg, accused No. 5, Anil Maheshwari and accused No. 6, Arvind Kumar Sharma, entered into an agreement?
ii. If so, whether they had agreed to cheat NIC, DO-XIII, New Delhi by fraudulently inducing it to sanction insurance claim in the name of Prashant Industrial Engineers under the proprietorship of accused No. 3, Yagya Dutt (P. CBI Case No. 30/12 20 of 50 O.) to the extent of Rs.2,50,477/- on the basis of forged/bogus/false documents and by using as genuine such documents and by commission of criminal misconduct by public servants i.e. accused No. 1, Moti Lal Mathur and accused No. 2, Yash Pal Babbar?
iii. If so, whether in pursuance of the said agreement, accused No. 3, Yagya Dutt (P.O.) of Prashant Industrial Engineers obtained marine policy No. 4400361/98 for transit of Industrial Resin from Delhi to anywhere in India and the said Yogya Dutt submitted claim form for insurance claim in NIC, DO-XIII, New Delhi and accused No. 1, Moti Lal Mathur processed and recommended the claim and accused No. 2, Yash Pal Babbar, approved the claim of Rs. 2,50,477/- in favour of Prashant Industrial Engineers on the basis of false/forged/bogus documents i.e. invoice, G R, survey report etc. and accused No. 5, Anil Maheshwari got introduced account No. 841 in which the claim amount was credited and accused No. 6, Arvind Kumar Sharma, Proprietor of Pooja International submitted false investigation report without investigating/tracing the matter and accused No. 4, Devender Kumar Garg of S. B. K. Enterprises submitted false survey report without conducting survey?
B. Charge u/s 13 (2) r/w section 13 (1) (d) of the PC Act against accused No. 1, Moti Lal Mathur.
(i) Whether during the period 1998-99, accused No. 1, Moti Lal Mathur was a public servant i.e. Administrative Officer, NIC, DO-XIII, New Delhi?
(ii) If so, whether during the above period at Delhi and other places, accused No. 1, Moti Lal Mathur obtained pecuniary advantage to the tune of Rs.2,50,477/- for accused No. 3, Yagya Dutt (P. O.), Proprietor of Prashant Industrial Engineers and caused corresponding loss to the NIC by persuading CBI Case No. 30/12 21 of 50 to forward and recommending the claim proposal on the basis of false/forged/bogus documents for grant of above claim which was sanctioned on his recommendation?
(iii) If so, whether accused No. 1, Moti Lal Mathur did as above by use of illegal means and abuse of his official position?
C. Charge u/s 13 (2) r/w section 13 (1) (d) of the PC Act against accused No. 2, Yash Pal Babbar.
(i) Whether during the period 1998-99, accused No. 2, Yash Pal Babbar was a public servant i.e. Assistant Manager, NIC, DO-XIII, New Delhi?
(ii) If so, whether during the above period at Delhi and other places, accused No. 2, Yash Pal Babbar obtained pecuniary advantage to the tune of Rs.2,50,477/- for accused No. 3, Yagya Dutt (P.O.), Proprietor of Prashant Industrial Engineers and caused corresponding loss to the NIC by sanctioning the above claim amount on the basis of false/forged/bogus documents?
(iii) If so, whether accused No. 2, Yash Pal Babbar did as above by use of illegal means and abuse of his official position?
D. Charge u/s 468 IPC against accused No. 4, Devender Kumar Garg.
(i) Whether during the period 1998 at Delhi and other places, accused No. 4, Devender Kumar Garg, Proprietor of S. B. K. Enterprises was appointed as Surveyor, in the claim of Prashant Industrial Engineers?
(ii) If so, whether accused No. 4, Devender Kumar Garg committed forgery by submitting a false survey report to NIC, DO-XIII, New Delhi without carrying out the survey?
(iii) If so, whether accused No. 4, Devender Kumar Garg intended that the CBI Case No. 30/12 22 of 50 aforesaid forged document i.e. false survey report shall be used for the purpose of cheating NIC?
E. Charge u/s 468 IPC against accused No. 6, Arvind Kumar Sharma.
(i) Whether during the period 1998 at Delhi and other places, accused No. 6, Arvind Kumar Sharma, being Proprietor of Pooja International, was appointed as investigator, in the claim of Prashant Industrial Engineers?
(ii) If so, whether accused No. 6, Arvind Kumar Sharma committed forgery by submitting a false investigation report to NIC, DO-XIII, New Delhi without investigating the matter?
(iii) If so, whether accused No. 6, Arvind Kumar Sharma intended that the aforesaid forged document i.e. bogus report shall be used for the purpose of cheating NIC?
10.1 It is pertinent to refer to Sec. 3 of the Indian Evidence Act, 1872 (hereinafter called as 'IEA') which defines the term 'proved' and d' isproved' as under :-
" ' Proved'- A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists"
" ' Disproved'- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist."
10.2 It is well settled that the word 'proof' means anything which serves, either immediately or mediately to convince the mind of the truth or falsehood of a fact or proposition; and the proofs of matters of fact in general CBI Case No. 30/12 23 of 50 are our senses, the testimony of witnesses, documents and the like. " Proof"
does not mean proof to rigid mathematical demonstration, because that is impossible; it means such evidence as would induce a reasonable man to come to the conclusion (vide Emperor v/s Shafi Ahmed, (1925) 31 Bom. LR 515]. Further, Sec. 134 of IEA stipulates that no particular number of witnesses shall in any case be required for the proof of any fact.
10.3 In human affairs, everything cannot be proved with mathematical certainty and the law does not require it. Legal proof is something different from moral certainty about the guilt of an accused person. Suspicion, however, great, cannot take the place of legal proof. A moral conviction, however strong or genuine, cannot amount to a legal conviction supportable in law. The well known rule of criminal justice is that " fouler the crim e, higher the proof." [ vide Sharad Birdhichand v. State of Maharashtra, (surpa)].
10.4 In criminal matters, the prosecution is required to prove its case beyond a reasonable doubt. A benefit of doubt is the condition of the mind which exists where the judges cannot say that they feel an abiding condition, a moral certainty of the truth of the charge. It must not be a mere doubt of a vacillating mind that has not the moral courage to decide upon a difficult and complicated question and therefore, takes shelter in an idle scepticism (Refer 1977 CrLJ 59) 10.5 It is well settled that the burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.
10.6 However, the rule in section 106 of the Act would apply when the facts are 'especially within the knowledge of the accused' and it would be CBI Case No. 30/12 24 of 50 impossible or at any rate disproportionately difficult for the prosecution to establish such facts which are 'especially within the knowledge of the accused'. The prosecution is not required to eliminate all possible defences or circumstances which may exonerate him. If certain facts are in the knowledge of the accused then he has to prove them. Of course the prosecution has to prove prima facie case in the first instance. In this regard reference can be made to Murlidhar v. State of Rajasthan, AIR 2005 SC 2345, State of Punjab v. Karnail Singh, (2003) 11 SCC 271, Trimukh Maroti Kirkan v. State of Maharashtra, 2007 Cr LJ 20 (SC), Santosh Kumar Singh v. State, (2010) 9 SCC 747 and Ram Singh v. State, 2011 Cr LJ 618 (Raj.), AIR 1959 SC 1390, AIR 1937 Rang 83, 1968 Cri LJ 848, AIR 1967 Mys 79 and 1964 (1) Cri LJ 688.
10. 7 Criminal conspiracy is often hatched in secrecy and for proving the offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence. However, it cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence. Where the prosecution case rests merely on circumstantial evidence, the facts established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. However, on the basis of evidence led by prosecution, if two views are possible, one pointing to the guilt of the accused and other to his innocence, the one in favour of the accused must be accepted. In this regard, reference can be made to Saju Vs. State of Kerala, (2001) 1 SCC 378, Sherimon Vs. State of Kerala, (2011) 10 SCC CBI Case No. 30/12 25 of 50 768, P.K. Narayanan Vs. State of Kerala, (1995) 1 SCC 142, State of M.P. V Sheetla Sahai, 2009, Cr. LJ 4436, Shivaji Saheb Rao Bobde v. State of Maharashtra, AIR 1973 SC 2622, Harendra Narain Singh v. State of Bihar, AIR 1991 SC 1842 and Baboo Ram, v. State, 1996 Cri LJ 483.
10.8 The essence of conspiracy is unlawful combination and the complicity of the accused has to be decided after considering all the circumstances proved, before, during and after occurrence. Agreement between the conspirators may also be proved by necessary implication. It is not necessary that each member of a conspiracy must know all the details of the conspiracy. Facts established should be consistent only with the hypothesis of guilt of the accused. It does not mean that each and every hypothesis suggested by accused must be excluded by proved facts. In this regard reference can be made to Chaman Lal Vs. State of Punjab, AIR 2009 SC 2972, R.K. Dalmia V The Delhi Administration, AIR 1962 SC 1821, Muriappan Vs. State of Tamil Nadu, AIR 2010 SC 3718 and Firozuddin Basheeruddin vs State of Kerala, (2001) 7 SCC 596.
10.9 It is also pertinent to refer to Sec 313 (4) of the Cr.P.C. which stipulates that the answers given by the accused, in his statement under this section, may be taken into consideration in such enquiry or trial, and put in evidence for or against him in any other enquiry into, or trial for, any other offence which such answers may tend to show he has committed. It is well settled that admission or confession of the accused in the statement under section 313, Cr PC in the course of trial can be acted upon and the court can rely on these confessions to proceed to convict him. In this regard reference can be made to Dharnidhar v. State of Uttar Pradesh, (2010) 7 SCC 759 CBI Case No. 30/12 26 of 50 and State of Maharashtra v. Sukhdev Singh, AIR 1992 SC 2100.
10.10 It is also well settled that evidence of one accused or admission or action or statement made by one of the accused can be used as evidence against the other by virtue of Section 10 of the Indian Evidence Act. In this regard reference can be made to Tribhuvan Nath Vs. State of Maharashtra, AIR 1973 SC 450 and Kehar Singh v State, AIR 1988 SC 1883. 10.11 Both the parties have relied upon Claims Procedural Manual, which was admittedly applicable at the relevant time. The said manual, while laying down the procedure for processing and settlement of marine claims provides that the procedures laid down in the Manual are not exhaustive and are of general nature. It further provides that in some cases, the requirements laid down in the Manual could not be in practice complied with due to particular circumstances applicable to the individual case and such non compliance should not therefore, make the claim as not payable and the claim settling authority is to use his discretion by recording his reasons in detail. 10.12 It is in the light of the above position of law that evidence is to be appreciated.
Facts Not in Dispute 11.1 From the evidence and material brought on record and the arguments advanced by the parties, there appears to be no dispute about the following facts:-
(a) Accused No.1 Moti Lal Mathur was a public servant i.e Administrative Officer, NIC, DO-XIII, New Delhi,
(b) Accused No. 2 Yash Pal Babbar was a public servant i.e. Assistant Manager, NIC. DO-XIII, New Delhi, CBI Case No. 30/12 27 of 50
(c) Accused No. 3 Yagya Dutt of Prashant Industrial Engineers took open marine policy No. 360 6600 4400/361/98 dt. 08-09-1998, Ex.
PW5/M for Rs 20 lacs for transit of industrial resin from Delhi to anywhere in India,
(d) The policy was booked under agent code No. 305/003 of Naveen Kumar Garg, agent, (e ) Claim form dt 22-10-1998 was submitted by Prashant Industrial Engineers to DO-XIII, NIC,
(f) Accused No. 6 Arvind Kumar Sharma, Proprietor of Pooja International was appointed as Investigator,
(g) Accused No. 6 Arvind Kumar Sharma submitted his report on 28-10-1998,
(h) TA/DA bill dt. 28-10-1998 was submitted by Pooja International,
(i) Claim was processed, inter-alia, on the basis of purported documents viz; letter dt. 12-10-1998 of DO, Sirsa, NIC addressed to DO-XIII, NIC, New Delhi, survey report dt. 12-10-1998 and claim intimation letter dt. 6-10-1998 of Gems Chemicals addressed to DO, Sirsa, NIC,
(j) Claim was recommended by accused No. 1 Moti Lal Mathur and approved by accused No. 2 Yash Pal Babbar for Rs 2,50,477/-.
(k) The claim amount was received by Prashant Industrial Engineers vide cheque No. 245600 dt. 12-10-1998 of Indian Overseas Bank, R.K. Puram, New Delhi and proceeds thereof were credited into current account No. 841 of accused No. 3 Yagya Dutt (P.O.) in Vaishya Co-operative, New Bank, Chawri Bazar, Delhi on 17-11-1998,
(l) Pooja International was appointed as recovery agent and documents for recovery were received by K.V. Juneja, employee of Pooja CBI Case No. 30/12 28 of 50 International vide acknowledgement dt. 30-11-1998,
(m) Recovery amount of Rs 10,000/-, was deposited on 29-12-1998,
(n) Bill No. 938 dt. 15-12-1998 for recovery fee was raised by Pooja International,
(o) An amount of Rs 1550/- was paid as recovery fee to Pooja International which was credited in current account No. 279 of OBC, Paschim Vihar, New Delhi on 22-1-1999.
Facts in Dispute.
12.1 However, the following facts are in dispute:-
(a) Prashant Industrial Engg., Shop no. 3499, Chawri Bazar, Delhi 6, was not in existence at the said address,
(b) Gem Chemicals, opposite main Bus Stand Sirsa, was not in existence at the said address,
(c) Amar Road Carriers Pvt Ltd, 4215, Khanna Market, Tis Hazari Delhi, was not in existence at the said address,
(d) No claim intimation was received by NIC, DO, Sirsa vide letter dt. 6-10-1998 of Gems Chemicals and the said letter is forged,
(e) No surveyor was appointed by NIC, DO, Sirsa and the surveyor's report dt.12-10-1998 of S.B.K Enterprises is forged,
(f) NIC, DO Sirsa has not sent any letter dated 12-10-1998 or the report of S.B.K Enterprises or the claim intimation letter dt. 6-10-1998 of Gems Chemicals to DO-XIII, NIC, New Delhi, and thus the letter dt. 12-10-98 is forged,
(g) Accused No. 4 Devender Kumar Garg prepared forged survey CBI Case No. 30/12 29 of 50 report in the name of S.B.K Enterprises,
(h) No surveyor by the name of S.B.K Enterprises was empanelled with NIC at Sirsa,
(i) The investigation report dated 28-10-1998 submitted by Pooja International is false, and
(j) No recovery was made from any Amar Road Carriers Pvt. Ltd.
Appreciation of Evidence.
13.1 The main fact in issue in this case is whether there was any loss of consignment of industrial resin purportedly sent by Prashant Industrial Engineers, New Delhi to Gems Chemicals, Sirsa through Amar Road Carrier Pvt Ltd, New Delhi, as covered by the insurance policy. The essential parts/components of the purported loss of consignment are existence of Prashant Industrial Engineers, New Delhi, existence of Gems Chemicals, Sirsa, existence of Amar Road Carrier Pvt Ltd, New Delhi, sending of the consignment of industrial resin and loss/damage to the said consignment. If any of the above part/component of the above transaction in question is disproved, it would, by necessary implication, follow that there was no loss of consignment and that the claim amount has been fraudulently obtained. 13.2 Prosecution has led evidence and Ld. PP has advanced argument to the effect that complete documents required for processing and settlement of claim are not available in the claim file which shows that the claim has been fraudulently obtained. Ld. Defence counsels contend that the complete chain of handing over of record has not been proved and thus absence of any document in the claim file is of no relevenace. It is pertinent to note that the claim files were the record of DO-XIII, NIC. The officer/official CBI Case No. 30/12 30 of 50 of DO-XIII from whose custody, the said files/record were seized for the first time has neither been specified nor examined by the prosecution to prove that complete record with respect to the claim in question was seized, or that the record produced in the court was the complete record, as available in DO-XIII at the time of sanction of the claim. Further, no inventory of the documents available in the claim files was prepared, and the record seized was also not sealed either at the time of their seizure by the officers of Regional Office of NIC or by the IO. Thus, no sanctity of preservation of documents seized was maintained. Therefore, the above contention of Ld. PP is not tenable. In this regard, a reference can also be made to the judgment dated 28-05-2013 of the Hon'ble High Court of Delhi in Crl. Appeal No.1455/2012, Anil Maheshwari v/s CBI.
Non-existence of Prashant Industrial Engneering at shop No. 3449, Chawri Bazar, Delhi.
13.3 PW 17, Sh. Mohit Aggarwal, UDC in the Vaishya Cooperative New Bank Limited, Chawri Bazar, Delhi, has inter-alia, proved the account opening form dt. 11-06-1990, Ex. PW 17/B and the specimen signature card, Ex. PW 17/C in respect of Current Account No. 841 of Prashant Industrial Engineers. It can be seen that as per the specimen signature card, Ex. PW 17/C, the address of Prashant Industrial Engineers is "1716, Gali Piou, Dariba, Delhi-8", whereas as per the Insurance Policy dt. 18-09-1998, Ex.PW 5/M, the address of Prashant Industrial Engineers is " Shop No. 3499, Chawri Bazar, Delhi" . No question was put to this witness regarding the address given in the specimen signature card. There is no suggestion that the address of Prashant Industrial Engineers was changed. There is no explanation about the above discrepancy.
CBI Case No. 30/12 31 of 50
13.4 In the testimony of PW 23, Sh. Sushant Rohtagi who was doing
the business of electrical goods at 3495, Chawri Bazar, Delhi for the last about 25 years, the fact clearly brought out is that R.K. Electrical at 3499 was owned by Shri Lalit Chawla.
13.5 PW 26, Sh. B.S. Bisht deposed that he went to Chawri Bazar, Delhi at the given address of Prashant Industrial Engineers and that no such firm was existing there. During his cross examination, he stated that he does not remember the date when he had gone there, the building or the shops therein. He has gone there in the year 2002. He further stated that one Mr. Lalit Chawla was residing at the said address for the last 10 years and he had told that there was no Prashant Engineers at the said address. The said Mr. Lalit Chawla has not been examined by the prosecution. However, the testimony of PW26 Sh B.S. Bisht, in this regard, has gone unimpeached. The fact that no investigation was made with regard to telephone numbers of Prashant Industrial Engineers is not sufficient to negate the other prosecution evidence which has come on record. It is considered that in cases of fraud, the mention of a business concern on record of any department may not be sufficient proof of its existence and functioning on grounds. The determinative factor is whether the business concern existed on ground or not and whether it was actually doing business or not. The allegations are to this effect only that existence of Prashant Industrial Engineers was shown on record while taking insurance policy but it did not exist or function on ground at its given address. From the above evidence, it appears that Prashant Industrial Engineers did not exist at its given address.
Non - existence of Gems Chemicals, opp. Bus Stand, Sirsa 13.6 It is pertinent to note that in the photocopy of letter dt.
CBI Case No. 30/12 32 of 50 6-10-1998 of Gems Chemicals placed at page No. 7 of the claim file, Ex. PW2/B, the address of the said firm has been given as " Opp. Bus Stand, Sirsa" and phone number given is " 717419" . In this regard PW 12 Sh. Amarjeet Singh testified that in the year 1997-98, he was running a petrol pump in the name and style of M/s Surender and Co. near Railway Crossing, Hissar Road, Sirsa which is functioning since 1970. The bus stand of Sirsa is at a walking distance from the petrol pump. As per his knowledge there was no company with the name of Gems Chemicals near the Bus Stand, Sirsa. He had not seen the sign board of this firm at Bus Stand, Sirsa. During his cross-examination, he stated that it is possible that Gems Chemicals may be working in any part of Sirsa or even near bus stand Sirsa or that it may not be in his knowledge.
13.7 PW13 Sh. Rajender Kumar Narula deposed that he was running the shop namely Narula Confectionery, Hissar Road, Opposite National Govt. College, Sirsa, Haryana since last 17-18 years. National Govt. College is opposite to the bus stand at one of its gate. Near his shop, no firm of the name of Gems Chemicals was functioning. During his cross-examination, he stated that he had not seen the signboard of Gems Chemicals on the shops near his shop or on the shops away from the shop. As per him, his shop was situated near new bus stand Sirsa. The old bus stand was about half kilometer from his shop. He does not have any knowledge about the shops and business establishments near the old bus stand.
13.8 PW 18 Sh. Mahender Singh testified that he was running M/s Dhingra Vaishno Dhaba since the year 1957 opposite Bus Stand, Sirsa, Haryana. He had not seen any firm under the name and style of Gems Chemical, opposite Main Bus Stand, dealing in industrial resin in the year CBI Case No. 30/12 33 of 50 1998. There was an open vacant plot opposite the bus stand in the year 1998 but now numerous shops have been constructed there. During his cross- examination, he stated that the market which has come into existence opposite bus stand, Sirsa is being constructed for the last 10 years. The markets have come around bus stand for the last 4 to 5 years. He denied the suggestion that Gems Chemicals existed in the year 1998 opposite bus stand Sirsa.
13.9 PW 20 Sh. Hari Narayan Sharma who was posted as Postman since 1995 in the main Post Office, Sirsa testified that he was distributing postal dak in the bus stand area of Sirsa, Hisar Road, Haryana. He has never distributed any Dak in the name of Gems Chemicals, opposite main Bus Stand Sirsa. He has also not seen the firm with the name of Gems Chemicals in the area of his postal jurisdiction. During his cross-examination, he stated that when he used to be on leave, two Postmen used to work in his place. He does not know the business of the persons who are residing in the area of his beat. He denied the suggestion that the firm in the name of Gems Chemicals was existing in front of bus stand Sirsa. He volunteered to state that all the firms which are opened in the area of the Post Office give in writing to the Post Office about their existence and address for delivery of dak but no such information was given by firm Gems Chemicals to the Post Office. 13.10 PW 21 Sh. Yatender Sharma Taxation Inspector in the office of Deputy Excise and Taxation Commissioner, Sirsa has deposed that he has been deputed to depose vide letter dated 09-02-2011, Ex.PW21/A. He deposed that letter dated 03-05-2002, Ex.PW21/B, issued from the office of Dy. Excise and Taxation Commissioner, Sirsa is signed by Sh. M.L. Arora, Dy. Excise and Taxation Commissioner. In the said letter, it is stated that as per CBI Case No. 30/12 34 of 50 record of their office, Gems Chemicals, Opposite main bus stand, Sirsa is not registered under Haryana General Sales Tax Act 1973 and Central Sales Tax Act 1956 in their office. During his cross-examination, he admitted that he had not seen the records on the basis of which report, Ex.PW21/B had been given. He also admitted that when a trader has to sell and send the goods outside the State, he is required to be registered with Sales Tax Department compulsorily. The registration is also compulsory if any trader wants to buy some goods from outside Haryana State. He also admitted that if the trader purchase the goods from outside the State for his personal consumption and nor for sale, the registration is not compulsory. The testimony of PW21 Sh Yatender Sharma has gone unimpeached.
13.11 PW 24 Sh. B.M. Pandit also testified that he had gone to Sirsa for making inquiry regarding Gem Chemicals. He made inquiries from 4-5 persons at Sirsa about the existence of Gem Chemicals and recorded their statements. The address given of the company was Opposite Bus Stand, Sirsa. He found that the company was not existing at the said address. During his cross-examination on behalf of accused No. 1 Moti Lal Mathur, he stated that he had gone alone to Sirsa. During his cross-examination on behalf of accused No. 2 Yash Pal Babbar, he stated that he had gone to Sirsa on 03-05-2002. He does not remember the time when he reached there but it was in the morning. He further stated that there was only one Bus Stand at Sirsa where he had got down. He denied the suggestion that there were more than one Bus Stand at Sirsa. He further stated that he could not tell the number of shops opposite Bus Stand, Sirsa. However, there was a market. There was no chemical shop in the said market. He had not met the officer bearers of the association of the market to ascertain the existence or CBI Case No. 30/12 35 of 50 otherwise of Gem Chemicals.
13.12 The testimonies of PW 12, Sh. Amarjeet Singh, PW 13, Sh. Rajender Kumar Narula, PW 18, Sh. Mahender Singh are quite natural and have gone unimpeached. These witnesses were having their business near Bus Stand, Sirsa and were thus likely to know about Gems Chemicals, if it existed at its given address. The deposition of PW 20 Sh Hari Narayan Sharma has also gone unimpeached. A postman is likely to know about the inhabitants of his area of beat, especially the business establishment. The letter, Ex.PW21/B stating that Gems Chemicals Pvt. Ltd. is not registered with their office is an official act which can be presumed to be correct. The argument that Gems Chemicals could have purchased the goods for their personal consumption and thus, their registration was not compulsory is not tenable because the goods being purportedly consigned to them was industrial resin. The same cannot be said to have been purchased for their personal consumption. The mere fact that no investigation has been made with regard to the telephone numbers given on the letter head of Gems Chemicals is not sufficient to negate the other prosecution evidence which has been brought on record. The testimonies of the above witnesses when seen in light of the fact, as discussed later, that no letter dated 06-10-1998 of Gems Chemicals was received by DO, Sirsa, NIC and they had not sent any letter dated 12-10-1998 to NIC, DO-XIII, New Delhi lead to the inference that apparently Gems Chemicals was not in existence at its given address. It can be safely inferred that no goods were purchased from Prashant Industrial Engineers by any Gems Chemicals.
Non - existence of Amar Road Lines at 4215, Khanna Market, Tis Hazari, Delhi.
CBI Case No. 30/12 36 of 50
13.13 In the photocopy of GR dt. 3-10-1998 of Amar Road Carrier
(P) Ltd their address is given as "4215, Khanna Market, Tis Hazari, Delhi-110054". Two phone numbers have also been given as 2 ' 967510' and 2 ' 967623'. In this regard PW 4, Sh. Dwarka Das testified that they have a shop in Khanna Market, in the name and style of M/s Chander Bhan Dwarka Das, 78, Khanna Market, Tis Hazari, Delhi - 54 since 1952 where he joined his father in 1972. The total shops in Khanna Market are between numbers 1-98. There was no shop/firm bearing No. 4215 in Khanna Market, Tis Hazari, Delhi. No firm of the name, Amar Road Carriers Pvt. Ltd. ever existed there. During his cross-examination, he stated that he could not tell as to who owns or runs a shop in shop No. 25 or 50. He only know shopkeepers having their shops in his neighbourhood. There might be about 35-40 transporters in Khanna Market. He does not know the names of the transporters except one Sangam Transporter.
13.14 PW 14 Sunil Kumar, clerk in M/s New Shakti Transport company for the last 25-30 years has testified that no firm by the name of Amar Road Carriers Pvt Ltd has been running at 4215 Khanna Market, Tis Hazari, Delhi and that he has never heard of this company in the above premises. During his cross examination, he admitted that there is trader's association of shopkeepers of Khanna Market and that he could not claim to know everybody in Khanna Market. He denied the suggestion that the number of premises in Khanna Market were changed somewhere in the year 1987. He further submitted that he does not remember that No. 4215 used to exist under the previous system and that he never heard of this thing. He stated that he does not know if Amar Road Carriers Pvt Ltd existed in Khanna Market but that he was very clear that there was no premises at 4215 in CBI Case No. 30/12 37 of 50 Khanna Market.
13.15 PW 16 H.C. Jilajeet Singh, who was posted at PS Sabzi Mandi and was attached to PP Tis Hazari during the year 2001-2002 deposed that he was a beat constable at Khanna Market, Tis Hazari, Delhi and there was no firm in the name of Amar Road Carriers Pvt Ltd at 4215, Khanna Market, Tis Hazari Delhi and that in the Khanna Market, number of shops are from 1-100 only. During his cross examination, he stated that he could not say if Amar Road Carriers Pvt Ltd existed in Khanna Market in the year 1998. 13.16 PW 19 Shri S.L. Garg Inspector CBI, testified that he went to Khanna Market and recorded the statements of witnesses at the site after going around the market. The transport company in question, which he think was some Amar Road Carrier Pvt Ltd was not in existence. In the given address, number of the transport company was in four digit and in Khanna market, four digit number did not exist. There were only 1 to 100 numbers. During his cross examination, he stated that he had not gone to the MTNL office or sent anybody for verification of landline number 2967510 and 2967623. He had also not gone to the office of State Transport Authority to verify the existence of above transport company and he had not seized any record from MCD at Khanna Market.
13.17 The testimonies of the aforesaid witnesses have gone unimpeached. PW 4, Sh. Dwarka Das and PW 14, Sh. Sunil Kumar having their work places in Khanna Market were likely to know Amar Road Carriers (Pvt) Ltd in the normal course, if it so existed. All the above witnesses have very categorically stated that there was no number "4215" in Khanna Market. There is no reason to disbelieve the same. Thus, it is clearly estasblished that Amar Road Carriers, (Pvt) Ltd, did not exist at 4215, Khanna Market, Tis CBI Case No. 30/12 38 of 50 Hazari, Delhi.
No role of NIC, DO Sirsa 13.18 The processing of claim at DO-XIII was based, inter-alia, on purported letter dated 12-10-1998 of NIC, Sirsa vide which claim intimation letter dt. 6-10-1998 of Gems Chemicals and Survey Report dt. 12-10-1998 were sent to NIC, DO-XIII, New Delhi. In this regard, PW22 Sh. P.K. Sharma has testified that from the year 1995 to 1997, he was posted as Assistant Divisional Manager, NIC, Sirsa. In the month of October, 1997 he was promoted as Assistant Manager at Sirsa and continued to be there till 2001 and from November 2001 to October 2005, he was posted as Divisional Manager at Sirsa. He has categorically stated that they have not received letter dated 06-10-1998, of Gems Chemicals. He further stated that letter dated 12-10-1998, on the Letter Head of NIC was not issued by their company. He further clarified that in October 1998, the In-charge of their company at Sirsa was Senior Divisional Manager, Shri G.D. Gupta and there was no Divisional Manager. Therefore, the signatures encircled and marked Q 59 on page 3 of Ex. PW 2/B were not of any Officer of their company. He further testified that Marine Claim Form dated 22-10-1998 at page 4 of Ex. PW 2/B was not of their company since their Regional Office was at Chandigarh and not at Delhi. The Form at page 4 bears address of Delhi. With respect to the Marine Survey Report of SBK Enterprises, dated 12-10-1998 and their receipt dated 12-10-1998 placed at page No. 8 to 11 of Ex. PW 2/B, he testified that there was no Surveyor by the name of SBK Enterprises empanelled with National Insurance Company at Sirsa. During his cross- examination, he stated that in the year 1997-98, besides him, other Officers in NIC, Sirsa were Mr. G.D. Gupta, Senior Divisional Manager, Shri Gurmukh CBI Case No. 30/12 39 of 50 Singh, Assistant Divisional Manager and Shri Ashok Saroha, Assistant Administrative Officer. In the year 1997, one Shri G.L. Goel was posted as Assistant Manager. He was transferred in the year 1998. There was no specific Officer In-charge of Marine Claims Department. He admitted that had letter dated 06-10-1998 of Gems Chemicals come to their office, it would have been directed to the Officer dealing with marine claims. The possibility of the said letter being directed to any Officer other than him could not be ruled out. He further stated that before going to the CBI Office, he had checked the office record for service claims and there was no letter dated 06-10-98 in their file. He admitted that if letter dated 12-10-1998 was issued from their office, it would have been entered in dispatch register and that before telling the CBI about the said letter, he had not checked up the dispatch register of their office. He denied the suggestion that letter dated 12-10-1998 was sent by Sirsa Office or that it bears signatures of some Officer posted at that time at Sirsa. He also denied that SBK Enterprises were given the assignment as stated in the Survey Report dated 12-10-1998, at page 8 to 11 of Ex. PW 2/B. 13.19 The testimony of PW22 Sh. P.K. Sharma with regard to letter dated 12-10-1998 not being sent from their office at Sirsa has gone unimpeached and unrebutted. During his cross-examination, no suggestion has been given that there was any Divisional Manager posted at Sirsa office. Therefore, there is no possibility of any letter being sent by Sirsa office of NIC under the signature of Divisional Manager. There is no reason to disbelieve the deposition of PW22 Sh. P.K. Sharma. To prove that letter, dt. 12-10-98 was not sent by NIC, DO Sirsa, the purported author of the said letter was the best witness. As per section 59 of the IEA, contents of a document are required to be proved by the document itself. However, to prove that a CBI Case No. 30/12 40 of 50 document is forged, the evidence of the purported author of the document is the best evidence. The absence of any entry of the above letter in the dispatch register could be only corroborative in nature. It is therefore, clear that there was no SBK Enterprises empanelled as Surveyor with NIC at Sirsa and therefore, no assignment, as stated in survey report, dated 12-10-1998 was given to them. Consequently, no report dated 12-10-1998 was submitted at Sirsa office by any SBK Enterprises nor the letter dated 12-10-98 was sent by Divisional office Sirsa to NIC, DO-XIII.
13.20 From the aforesaid evidence regarding non existence of Prashant Industrial Engineers, Gems Chemicals and Amar Road Carriers (P) Ltd at their given addresses and no claim intimation having been received, no surveyor being appointed and no letter having been sent by NIC, DO Sirsa to NIC, DO-XIII, it is clearly established that no consignment, as covered under the policy in question, was sent. Consequently, there was no question of loss of consignment. Ergo, the claim was fraudulently obtained on the basis of forged documents.
Investigation Report dated 28-10-98, Ex.PW 5/E of Pooja International 13.21 In the survey report dated 28-10-1998, Ex. PW 5/E, of Pooja International, it is stated that they had visited the insured Prashant Industrial Engineers, Amar Road Carrier office at Tis Hazari, Delhi, consignee Gems Chemicals at Sirsa and met their representatives. It is also stated that they had contacted S.B.K. Enterprises at Sirsa and also visited NIC office at Sirsa, who confirmed having deputed S.B.K. Enterprises to assess the loss. It was finally concluded that the loss was genuine and 9 drums of Industrial Resin were damaged by careless handling of consignment during transit. Since it has been proved that no consignment, as professed, was sent and there was CBI Case No. 30/12 41 of 50 no loss of consignment, the report Ex. PW 5/E is by necessary implication, false. Accused No.6 Arvind Kumar Sharma could not have, in the normal circumstances, given such a false report unles he was involved in the conspiracy to cheat NIC.
No Recovery made from the Transporter 13.22 There is no dispute that as per receipt dated 29-12-1998, Ex. PW 5/C, the purported recovery amount was deposited by Prashant Industrial Engineers vide cheque no. 521128. It was thus not recovered from the transporter. The prosecution is also relying upon the statement of current account no 0-413301-009, Ex.PW 28/J of Supreme Industrial corporation to show that the Manager's Cheque for Rs 10,000/- deposited vide receipt, Ex. PW 5/C was issued from the account of Supreme Industrial corporation. However, neither any witness from Citibank has been examined to prove the said statement of account nor the same is certified in terms of the Banker's Books Evidence Act. Notwithstanding the same, the fact that Amar Road Carriers Pvt. Ltd., did not exist at its given address and the receipt, Ex PW 5/C is sufficient to prove that the recovery was not made from any Amar Road Carrier's Pvt. Ltd., the purported transporter.
13.23 It has been vehemently argued on behalf of accused no. 1 Moti Lal Mathur and accused No. 2 Yash Pal Babbar that they simply relied upon the reports of the surveyor and verifier and documents submitted by the claimant as field verification was not part of their duty and thus they have not committed any wrong. Ld. P.P. argues that accused No. 3 Yagya Dutt, could not have cheated NIC by obtaining claim amount based on bogus documents without connivance of the above officers of DO-XIII, NIC. As earlier observed, CBI Case No. 30/12 42 of 50 prosecution cannot base its case only on the ground that documents in the claim file were not complete, as no sanctity of preservation of record has been maintained. From the evidence brought on record by the prosecution through various officers/officials of NIC, it is clear that in case of any marine claim, the survey regarding damage to the consignment, tracing the consignment and verification of documents was being done by empanelled surveyors/tracers/verifiers and the officers of the insurance company were relying upon their reports to process and sanction the claim. 13.24 However, the evidence available on record shows complicity of accused No. 1 Moti Lal Mathur. PW 25, Sh. Naveen Garg, who was working as Insurance Agent of National Insurance Company in the year 1997-98 deposed that he used to deal with automobile insurance i.e. relating to car and scooters etc. He was given a code by the Insurance Company. Probably it was 305. He further stated that he had never dealt with Policy, dated 08-09-1998 in respect of Prashant Industrial Engineers, Ex.PW5/M, which bears agency code No. 305/003 or with Prashant Industrial Engineers. In National Insurance Company, he used to deal with accused Moti Lal Mathur, who had mentioned his code number in the above policy without his knowledge. In the instant case, the cheque given to him was deposited and the amount was credited in his account. However, later the said amount was taken from him in cash by Sh. Moti Lal Mathur. He further testified that once he was told by accused Moti Lal Mathur that he had sold insurance policy under his (PW25) code. For this, accused no.1 Moti Lal Mathur had given him a cheque of about Rs.500/- and he had given him the said amount in cash. He (Moti Lal Mathur) had taken from him, in cash, the commission amount pertaining to the policy sold by him in his (PW25) code. During his cross CBI Case No. 30/12 43 of 50 examination, he admitted that in the Agency Code Number '305/003', the number '305' is the Agent's Code and number '003' pertains to the Development Officer. Though he admitted that the Agents hand over their work to the concerned Development Officer, he volunteered to state that he used to handover his work to accused no.1 Moti Lal Mathur. He also stated that the agency was given to him by accused Moti Lal Mathur. Accused Moti Lal Mathur never told him to collect insurance premium from any client. 13.25 The testimony of PW25 Sh Naveen Garg has gone unimpeached and unrebutted. During his testimony as DW-4, accused no.1 Moti Lal Mathur has not deposed anything to rebut the testimony of this witness. The testimony of PW 25, Sh. Naveen Garg clearly shows that accused no.1 Moti Lal Mathur was intrumental in the insurance of Prashant Industrial Engineers and he had falsely shown the same to have been procured by PW 25, Sh. Naveen Garg. His involvement is also clear from the fact that accused No.1 Moti Lal Mathur had taken agent's commission from PW25 Sh Naveen Garg in cash.
13.26 It is pertinent to observe that once any marine claim is admitted by the insurance company, recovery, if any is to be made from the transporter and not the insured. In the present case, as per the Receipt, Ex. PW 5/C, the recovery amount had been deposited by Prashant Industrial Engineers and not by any transporter. The said receipt is signed by accused no.1 Moti Lal Mathur. There is no explanation by accused No. 1 Moti Lal Mathur as to why he had accepted recovery amount from the insured. Thus he cannot claim ignorance of the conspiracy. The claim note, Ex. PW 5/A is also initiated by accused no.1 Moti Lal Mathur and not by any of his subordinate. From the above circumstances, it is clear that accused no.1 Moti Lal Mathur was CBI Case No. 30/12 44 of 50 involved in the conspiracy to cheat NIC and he obtained pecuniary advantage for accused No.3 Yagya Dutt (PO) by illegal means and abuse of his official position.
13.27 However, there is no cogent evidence against accused no.2 Yash Pal Babbar to show his involvement in the conspiracy. As earlier held, the mere fact that certain documents are not available in the claims file is not sufficient to hold him guilty in view of the fact that sanctity of preservation of record was not maintained.
13.28 There is no admissible evidence against accused no.4 Devender Kumar Garg to show his involvement in the conspiracy. In the report dated 12-10-1998, placed at pages 8 to 11 of the claim file, there is no reference to accused No. 4 Devender Kumar Garg. He has denied any connection with S.B.K. Enterprises. No witness has stated that it was accused no. 4 Devender Kumar Garg who prepared or submitted the Survey Report dated 12-10-1998, Ex. PW 2/B. During his cross examination PW 2 Sh A.K. Seth deposed that he learnt during enquiry that Devender Kumar Garg was owner of S.B.K. Enterprises. However, the person from whom he has so learnt has neither been specified nor examined. Both PW 2Sh Akhilesh Kumar Seth and PW3 Sh Anil Kumar Tiwari testified that they had not met D. K. Garg. PW 24, Sh. B.M. Pandit and PW 26, Sh. B.S. Bisht also stated that they had not met D. K. Garg. According to PW 28, Sh. R.P. Kaushal, D. K. Garg was on the panel of NIC whereas according to PW 22, Sh. P.K. Sharma there was no surveyor by name of S.B.K. Enterprises empanneled with NIC at Sirsa. Further, the disputed signatures on the report dated 12-10-98, i.e. Q 52 to Q-55 were sent alongwith the specimen signatures of accused no.4 to CFSL. However, as per CBI Case No. 30/12 45 of 50 the CFSL Report, Ex. PW 28/M, no opinion regarding the authorship of the above questioned signatures has been expressed. Thus there is no evidence to link accused no.4 Devender Kumar Garg with S.B.K. Enterprises.
13.29 It is also relevant to note that as per the account opening form, Ex. PW 17/E of Supreme Industrial Corporation, there were two partners of the said firm, namely accused No. 5 Anil Maheshwari and Manish Maheshwari. The account of Prashant Industrial Engineers was, as per the account opening form, Ex. PW 17/B, introduced by Manish Maheshwari for Supreme Industrial Corporation and not by Anil Maheshwari, as alleged by the prosecution. Manager's Cheque no. 521128 dated 11-12-1998 vide which recovery amount of Rs. 10,000/- was deposited was allegedly issued from the account of Supreme Industrial Corporation at Citibank, Connaught Place as per statement of current account no 0-413301-009, Ex.PW 28/J of Supreme Industrial Corporation. However, neither any witness from Citibank has been examined to prove the said statement of account nor the same is certified in terms of the Banker's Books Evidence Act. There is also no evidence to show that it was Anil Maheshwari on whose instructions the said cheque was issued or that he was the authorized signatory for operating the said account. For fastening criminal liability on a partner for the acts done by the firm, evidence of his mens rea is essential. There being no such evidence in the present case, there is a reasonable doubt regarding the involvement of accused no. 5 Anil Maheshwari in the conspiracy.
13.30 The argument of Sh Umesh Sinha, ld counsel for accused No.2 Yash Pal Babbar that there has been a delay in registration of FIR does not hold any water. The case is of cheating and forgery. Unlike offences involving CBI Case No. 30/12 46 of 50 use of criminal force, offences involving cheating and forgery etc may not be detected immediately on commission. Generally, it is only after scrutiny of documents and enquiry that such offences are detected. Ld counsel has not explained as to how there was any undue delay in registration of FIR or how it was fatal to the case? He has also not shown any law which, in the facts of this case, would bar filing of more than one charge sheets in one FIR or would vitiate trial on the ground that FIR has been registered without conducting preliminary enquiry. Thus, his contention in this regard is also not tenable. 14.1 It has been argued by Sh. R.K. Kohli, on behalf of accused no. 6 Arvind Kumar Sharma that though verification report dt. 28-10-1998 has been submitted by Pooja International, the same is not signed by accused No. 6 Arvind Kumar Sharma. It is not the case of prosecution that the said accused claimed it to be made or executed by some other person or by authority of some other person by whom or by whose authority it was not made. Thus, it is not a false document in terms of Section 464 IPC and, therefore, no forgery has been committed in respect of the said document. He has relied upon Md. Ibrahim and Ors. v/s State of Bihar and Anr. 2010 Cri LJ 2223. In this regard. Ld. P.P. has argued that since this document has been used or executed by the accused in the name of Pooja International and its contents are false, the document would fall within the category of forged documents. He has referred to illustration (h) to section 464 IPC in support of his contention. It is considered that the said illustration is not applicable to the facts of this case.
14.2 The condition precedent for an offence under section 468 is forgery. The condition precedent for forgery is making a false document in terms of section 464 IPC. In the present case, the prosecution has not been CBI Case No. 30/12 47 of 50 able to prove as to who has signed at points Q46 and Q49 on the two copies of verification reports, dt. 28-10-98 of Pooja International placed at page 14 to 16, Ex. PW5/E and at pages 17-19 of the claim file, Ex. PW2/B i.e. who had made the said reports. In the CFSl report, Ex PW 28/M, no opinion has been expressed regarding the authorship of the questioned signatures on the above two copies of the verification report, dt. 28-10-98. Though, accused no. 6 Arvind Kumar Sharma has admitted that the said report was submitted by his firm Pooja International, i.e. it was used by him, there is no evidence to prove that it was made by him. Therefore, no case is made out against accused no 6 Arvind Kumar Sharma under sections 468 IPC.
Conclusions 15.1 In view of the aforesaid discussion it is considered that the prosecution has been able to prove beyond a reasonable doubt that;
a) Accused No. 1, Moti Lal Mathur, and accused No. 6, Arvind Kumar Sharma and accused no 3 Yagya Dutt, (PO) entered into an agreement to cheat NIC, DO- XIII, New Delhi by fraudulently inducing it to sanction insurance claim in the name of Prashant Industrial Engineers under, the proprietorship of accused No. 3, Yagya Dutt (PO) to the extent of Rs. 2,50,477/-, by using as genuine forged documents and by commission of criminal misconduct by public servant i.e. accused No. 1, Moti Lal Mathur,
b) Accused No. 1, Moti Lal Mathur being a public servant i.e. Administrative Officer, NIC, DO-XIII, New Delhi, by use of illegal means and abuse of his official position, obtained pecuniary advantage to the tune of Rs. 2,50,477/- for accused No. 3, Yagya Dutt (PO) of Prashant Industrial Engineers and caused corresponding loss to the NIC by inducing and CBI Case No. 30/12 48 of 50 recommending the claim proposal on the basis of forged documents for grant of above claim which was sanctioned on his recommendation.
15.2 However, the prosecution has not been able to prove beyond a reasonable doubt that :-
a) Accused No.2 Yash Pal Babbar, accused no.4 Devender Kumar Garg or Accused no. 5 Anil Maheshari entered into any criminal conspiracy with other co accused persons to cheat National Insurance Company Ltd.,
b) Accused no. 2 Yash Pal Babbar being a public servant i.e. Divisional Manger, NIC, DO-XIII, New Delhi obtained pecuniary advantage to the tune of Rs. 2,50,477/- for accused No. 3, Yagya Dutt (PO) of Prashant Industrial Engineers or caused corresponding loss to the NIC by sanctioning the above claim on the basis of forged documents,
c) Accused no. 4 Devender Kumar Garg was the proprietor of S.B.K. Enterprises or that he committed any forgery,
d) Accused No. 6, Arvind Kumar Sharma, Proprietor of Pooja International, committed any forgery, 15.3 The points at para 9 are decided accordingly. 15.4 In view of the aforesaid, it is held that:-
a) Accused No. 1, M.L. Mathur and accused No. 6, Arvind Kumar Sharma are guilty for commission of offence punishable under section 120B r/w section 420/471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act,1988 and they are convicted accordingly.
b) Accused No. 1, M.L. Mathur is also guilty for commission of offence punishable under section 13 (2) r/w 13 (1) (d) of the PC Act, 1988, CBI Case No. 30/12 49 of 50 and he is convicted accordingly.
c) Accused No.2 Yash Pal Babbar is acquitted of the charges under section (i) 120B r/w section 420/467/468/471 IPC and section 13 (2) r/w 13 (1) (d) of the PC Act,1988 and (ii) under section 13 (2) r/w 13 (1) (d) of the PC Act, 1988.
d) Accused no.4 Devender Kumar Garg is acquitted of the charges under section (i) 120B r/w section 420/467/468/471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988 and (ii) under section 468 IPC.
e) Accused No. 5 Anil Maheshwari is acquitted of the charge under section 120B r/w section 420/467/468/471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988.
f) Accused No. 6, Arvind Sharma is acquitted of the charge under section 468 IPC.
16. Let the convicts be heard on the point of sentence on 03-01-2014.
Announced in the Open Court today on 20th Day of December, 2013.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi (ra/pa)
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