Delhi District Court
State vs Sanjay Chaddha & Ors. on 22 June, 2019
CNR No. DL CT020001532000
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DL CT020001532000
CIS No. 295285/16
State Vs Sanjay Chaddha & Ors.
FIR No. 78/96
PS. IP Estate
U/s. 177/197/198/199/200/420/468/471/120B IPC
JUDGMENT
1) The date of commission of offence : 09.02.1996
2) The name of the complainant : Krishan Kumar District Excise Officer(IMFL), Delhi.
3) The name & parentage of accused : 1. Sanjay Chaddha S/o. Late Sh S.R Chaddha Parshad R/o. N17, Dr Mukherjee Nagar, Delhi.
2. Rajender Vinayak Shergaonkar S/o Sh V.S Shergaonkar MD of M/s Ugar Sugar Work Ltd, Ugar Khurd.
3. M/s Ugar Sugar Work Ltd.
4) Offence complained of : 177/197/198/199/200/420/468/471/120B IPC 5) The plea of accused : Pleaded not guilty. 6) Final order : Acquitted. 7) The date of such order : 22.06.2019 Date of Institution : 02.03.2000 Judgment reserved on : 28.05.2019 Judgment announced on : 22.06.2019 State Vs. Sanjay Chaddha & Ors; CIS No. 295285/16, FIR No. 78/96, PS IP Estate; U/s. 177/197/198/199/200/468/471/120B IPC 1/22 CNR No. DL CT020001532000 THE BRIEF REASONS FOR THE JUDGMENT: 1) The case of the prosecution, in brief, is that a criminal conspiracy was
hatched by the accused persons to get the L1 license renewed dishonestly for some brands of liquor and in pursuance to that conspiracy false documents/affidavits were filed with the Excise Department of Delhi for the renewal of L1 License in the NCT of Delhi with respect to two brands of whisky and three brands of rum wherein the false sale figures of those liquors were shown qua the year 199394 and 199495. On the basis of those documents the Excise Department was dishonestly induced to renew the L1 License. The information supplied to the Excise Department was got verified through a physical inspection made at the distillery and it was found that the sale figures qua the applied liquor brands were wrongly mentioned in the documents filed before the Excise Department. The license was thereafter canceled. FIR was registered and after investigation chargesheet was filed for the alleged offences U/s 177/197/199/200/420/465/468/471/120B IPC.
2) In compliance of Sec. 207 Cr.PC, documents supplied to the accused persons. Arguments on point of charge were heard. Vide orders dated 13.12.2007 and 16.01.2008, separate charges for the offences U/s 177/197/198/199/200/420/468/471/120B IPC were framed upon the accused persons, to which they pleaded not guilty and claimed trial. It is pertinent to mention here that the company M/s Ugar Sugar Work Ltd was also arrayed as accused and charges was framed upon the company through MD of the company namely Rajender Vinayak Shergaonkar.
State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 2/22 CNR No. DL CT020001532000
3) In support of its case, prosecution has examined eight witnesses. After conclusion of prosecution evidence statement of accused persons were recorded in which accused persons denied all the allegations and opted not to lead DE.
4) I have heard the arguments of Ld. APP for State and Ld. Defence Counsels for accused persons. I have also perused the record carefully.
5) The testimony of prosecution witnesses is being touched upon, in brief, as follows: 5.1) PW1 Sh Jyoti Parkash deposed that he was working as UDC, IMFL Branch Excise Office, LBlock, Vikas Bhawan in the year 199596. He deposed that the accused company M/s Ugar Sugar Work Ltd applied for renewal of L1 license for some brands of liquor manufactured in distillery and mentioned the sale figures of 199394 and 199495 supported with affidavits/declaration. On the basis of those documents L1 license of the company was renewed. The Commissioner of Excise got the sale figures of the company verified through a inspecting team and the report was given by the inspecting team that the false figures were mentioned. FIR was lodged. He deposed that during investigation IO collected several documents from him which were filed by accused persons along with the application for renewal of license and those were seized vide seizure memo Ex.PW1/A. Those documents were given Ex.P1 to Ex.P9 in his testimony. 5.2) PW2 Sh Kishan Kumar, deposed that he was working as DEO, IMFL Excise Department and in that capacity he prepared the complaint State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 3/22 CNR No. DL CT020001532000 Ex.PW2/A and got the present FIR registered against M/s Ugar Sugar Work Ltd Company and its attorney as well as chartered accountant for the offence of forgery and cheating. He deposed that the accused company applied for renewal of L1 license and for registration of its brands namely Ugar XXX Rum; US Whisky; Milan XXX Rum; Warrior XXX Rum and Milan Whisky. He deposed that the sale figures qua the Milan Whisky was found correct during the inspection but the figures qua other brands did not meet the criteria as required. It is stated that false documents were filed claiming the inflated sale figures and thereafter the license was canceled. In his testimony the inspection report was given Mark A. 5.3) PW3 Sh R.P Nautiyal deposed that on 29.04.1999 he was working as UDC, Excise Commissioner Office, IP Estate and was dealing with EVC record. He deposed that the IO served notice U/s 91 Cr.PC to produce the EVCs of M/s Ugar Sugar Work Pvt Ltd and there he provided containing EVCs of the said company and the photocopies of actual sale figures of the said company to the IO which were seized vide Ex.PW3/A. Those three folders containing EVCs were given Ex.PW3/1, Mark PW3/2 and Mark PW3/3. The photocopies of the sale figures were given Mark P3/1 to P3/29. 5.4) PW4 Sh Bhupender Singh deposed that in the year 1995 he was posted as Excise Inspector and in the month of September 1995 a team comprising of himself, V.S Nayyar, led by Sh Khem Chand, was deputed for inspection of various distilleries including M/s Ugar Sugar Pvt Ltd. He deposed that they reached at distillery and asked the superintendent in State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 4/22 CNR No. DL CT020001532000 charge to produce the relevant sale record for the year 199394 and 199495 with respect to the applied brands. The information was verified with the details of Excise Verification Certificates(hereinafter as 'EVC' for short) but it did not match with the figures except for one brand Milan Whisky. In his testimony the inspection report dated 04.10.1995 was proved as Ex.PW4/A. 5.5) PW5 V.S Naval deposed on the lines of PW4 as to the inspection and to the mismatch of figures as mentioned in EVCs and found in the record of the distillery. He deposed that they visited the distillery on 23.09.1995 and submitted the report on 04.10.1995.
5.6) PW6 Sh R.P Tagore deposed that for about 40 years he worked in the company M/s Ugar Sugar Work Pvt Ltd and on the query of IO he told to him that there was no person namely A.K Gidwani who worked for the company as chartered accountant.
5.7) PW7 Retired Inspector Inder Singh deposed that on 15.02.1996 the investigation of the present case was marked to him and there he gave notices U/s 91 Cr.PC to the Excise Department for providing necessary documents of the present case. He deposed that the UDC of Excise Department namely Jyoti Parshad provided him 11 documents which were seized Ex.PW1/A. He deposed that Excise Verification Certificates not provided to him despite his various requests.
5.8) PW8 Inspector Krishan Kumar that in the month of February 1999 the further investigation of the present case was marked to him. He deposed that he seized the unattested photocopies of Excise verification Certificates for State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 5/22 CNR No. DL CT020001532000 the period 199596 from the District Superintendent of Excise which is Ex.PW3/A. He deposed that in his investigation it was came that there was no chartered accountant with the name of Sh A.K Gidwani. He deposed that all the forgery was done by accused Sanjay Chaddha as he assured the company that he would get the license renewed.
6) It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of the accused beyond reasonable doubts. No matter how weak the defence of accused is but the golden rule of the criminal jurisprudence is that the case of prosecution has to stand on its own legs.
7) If the case of the prosecution is to be summarized than it can be said that the case of the prosecution is that the accused company through its MD and attorney dishonestly got the L1 license renewed for two brands of whisky and three rums by quoting false figures of sales of alcohol for the last two preceedings years. Thus the genesis of the present case lies as to the sale figures of company/distillery for the applied brands of alcohol for the year 199394 and 199495. It is to be ascertained from the evidences as brought on record as to whether the sales figures as claimed by the company during the renewal of L1 license were true figures or not. As per the eligibility criteria for renewal of L1 license, sale of more than 60,000 cases of whisky and 25,000 cases of rum throughout India excluding Delhi during the year 199394 and 199495 was mandatory.
State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 6/22 CNR No. DL CT020001532000
8) Before proceedings further it is to be seen as to what were the terms and condition for the grant of L1 license for the year 199596(01.05.1995 to 31.03.1996) in the National Capital Territory of Delhi. The relevant document qua that was proved by the prosecution as Ex.P10. The eligibility to hold license is mentioned in clause no.3 of Ex.P10. It is relevant to reproduce the clause 3 of ready reference. The same is as under: L1 license shall be granted only to a company incorporated under the Indian Company Act/A Partnership or Firm/A Society registered under the Cooperative Societies Act having licensed manufacturing units (Distillery/Brewery/Bottling Plants). The existing license of the year 199495 will be renewed for 199596 of Distillery/Breweries/Bottling Plants only as the case may be. The Distillery/Breweries/Bottling Plants, however can have the some person to act as their attorney/authorized representative and also to use the same godown being operated by the same attorney. Attorney once nominated shall not be changed during the currency of the license without the prior intimation to the Collector of Excise. The Distillery/Breweries/Bottling Plants shall be responsible for any act of omission or commission done by the said attorney/authorized representative.
Apart from the affidavit filed by the applicant for L1 license State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 7/22 CNR No. DL CT020001532000 regarding sale figures, applicants for L1 license will have to furnish along with the application a certificate from the Excise Authorities of the concerned State countersigned by an officer not below the rank of an Excise Officer as regards the sales figures. The applicant will also be required to furnish attested photocopies of the export pass/EVC issued by the Excise authorities as a further proof of the sale figure. The manufacturing unit and attorney both will be responsible for providing any wrong information in this regard.
9) At this stage it is to be referred as to what were the figures which were cited by the accused company while applying for L1 license and the figures which came out during the inspection conducted. These figures are revealed in the complaint Ex.PW2/A. The accused company claimed following sale figures of the IMFL brands for the year 199394 and 199495 as under: Brand Name 199394 199495
1. Ugar XXX Rum 29370 27342
2. US Whisky 93742 104999
3. Milan XXX Rum 26875 29342
4. Warrior XXX Rum 37342 39122
5. Milan Whisky. 88636 93452 However the following figures were revealed during the inspection conducted at the distillery, as per the case of prosecution.
State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 8/22 CNR No. DL CT020001532000 Brand Name 199394 199495 1. Milan Whisky 81113 84934 2. US Whisky 36463 22786 3. Milan XXX Rum 1157 490 4. Ugar XXX Rum 9061 8104 5. Warrior XXX Rum Nil. Nil. 10) As per the inspection report(the issue of admissibilty of this document
is to be decided in the later part of this judgment) the sale figures of the applied brands of liquors were found incorrect and thus not eligible for renewal of license except the Milan Whisky. The concered witnesses on this aspect are PW4 and PW5 who were the members of inspecting team. PW4 deposed that the information which was provided by the distillery were verified with the details of EVCs but it did not match with figures except for one brand Milan whisky. Thus the information which was revealed at the distillery was got compared with the information as mentioned in EVCs. The comparison of those two documents allegedly leads to the inference for the inspecting team members that the sale figures were wrongly quoted. As abovementioned it was the mandatory condition for the application for L1 license that the attested copies of EVCs were required to be attached with the application. No application could have been entertained without EVCs as admitted by PW1 also. In these circumstances the EVCs of all the brands of liquor for which the license was applied for the year 199394 and 199495 were required to be proved in the present case by the prosecution so that this State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 9/22 CNR No. DL CT020001532000 court could have perused those EVCs as to the sale figures claimed and the sale figures as revealed in the inspection of the distillery. Without EVCs of all the brands of the liquors for which the license was applied this court will not be able to see whether the sale figures were wrongly claimed or not.
11) The importance of EVCs lies in the fact that these documents pertains to the distillery but issued by a independent authority i.e Excise Officer of the Excise Department where the distillery is situated. Without EVCs there cannot be a movement of liquor from the distillery. This record is to be prepared by the government servant i.e Excise Officer. This document is the best evidence to prove that the false sales figures were claimed through false EVCs.
12) Surprising to note that there is no EVCs on record qua the brands of disputed liquors. The EVCs which are available on record in three folders are those of Milan Whisky(as admitted in crossexamination by PW3) for which the prosecution has no dispute that the sales figures as claimed by the accused company matched with the sales figures as revealed during the inspection. The dispute lies in respect of other brands of liquor for which the license was applied. The prosecution failed to bring on record the entire EVCs of those brands on record. The Ld Predecessor of this court took various pains by directing the investigating agencies to bring the EVCs of all the applied brands on record but of no avail. The EVCs which were filed later on i.e after the filing of the chargesheet and as mentioned by PW3 in his testimony is primarily qua the Milan Whisky only. Three folders of EVCs State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 10/22 CNR No. DL CT020001532000 which were brought on record are photocopies. These are not original EVCs. As per the requirement(see clause3 above) attested EVCs were required. One folder is attested by Notary Public, the other two folders are not even attested by Notary Public. The attestation required was of Excise Officer and not of Notary Public. Original EVCs which must have been filed with application for renewal of license, were available with the excise office. Initially no EVC was provided to IO. Later on some EVCs which were provided are photocopies only. No explanation given as to withhold of original EVCs. The EVCs which are on record are primarily for Milan Whisky only and even those EVCs cannot be read be in evidence as they are not even the secondary evidence. There is nothing on record as to the fundamental circumstances required to be proved for leading secondary evidence. Thus it can be said that the most crucial documents of the present case i.e complete EVCs are not on record and as such it cannot be ascertained by any means as to whether the wrong sale figures were mentioned by accused company or not.
13) The first IO of the present case namely Inspector Inder Singh, examined as PW7 deposed that EVCs were not provided to him despite his various request to the Excise Department. The second IO Inspector Kishan Kumar, examined as PW8, deposed that during the further investigation he collected the unattested photocopy of excise verification certificate from the District Superintendent of Excise which is Ex.PW3/A. PW3 deposed in the crossexamination that he had supplied the copies of EVCs of Milan whisky brand only. Thus the document Ex.PW3/A are the EVCs qua the Milan State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 11/22 CNR No. DL CT020001532000 Whisky which already fulfilled the required sale criteria and admitted by the prosecution. The EVCs of other brands were withhold by the prosecution or by the Excise Department for the reasons best known to it but this fact certainly leads to gaping hole in the case of the prosecution.
14) It is also clear from the testimony of PW1, the concerned UDC who supplied the documents to the IO, that the EVCs were not supplied to the IO. Nothing has been mentioned in the seizure memo Ex.PW1/A as to the seizure of EVCs. PW1 also admitted in the crossexamination that EVCs not provided to the IO. If the Excise Department had the custody of EVCs qua the all the brands than why that document was withhold by the Excise Department is the unanswered question which is directly effecting the case of the prosecution by all means. Without EVCs on record the alleged inspection report is of no consequence.
15) Consequent to that there is no means to hold that the sale figures as mentioned in the declaration/affidavits or any other documents as claimed by the company are false. This inturns makes the case of the prosecution without merits as far as the same relates to filing of false documents by mentioning the sale figures. This further rules out any dishonest intention on the part of the accused company for getting the L1 license renewed. This dishonest intention could have been commented upon had it been proved that the sales figures were false. Further, if allegedlyEVCs were false than why the concerned Excise Officer who had attested EVCs was not made the accused in the present case. Why the Excise Officer absolved from liability.
State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 12/22 CNR No. DL CT020001532000 This is a fact which is directly affecting the reliability of the case of the prosecution. This fact when read with the fact that the complete EVCs are withhold by the prosecution leads to the conclusion that case of prosecution is without merits. No dishonest intention on to the part of accused persons has been proved. The factum as to the false sale figures not proved. The case of the prosecution is liable to be dismissed on this ground only.
16) At this juncture only the another important document of the case of the prosecution in the form of the inspection report is to considered. PW4 and PW5 are the witnesses to the alleged inspection conducted in the month of September 1995 at the distillery in question. The prosecution is relying upon the inspection report Ex.PW4/A dated 04.10.1995. It is pertinent to mention here that the original inspection report is not on record. The exhibit was given on the photocopy of the report in the testimony of PW4. Initally this document was given Mark A on 25.04.2008 as the original document was not on record. In the meantime the prosecution moved an application for leading secondary evidence before the Ld Predecessor of this court on the inspection report and that application was allowed by Ld Predecessor vide order dated 24.04.2010. On the strength of that order the inspection report was given exhibit in the further examination of PW4. During the final arguments, Ld Defence Counsel argued that this inspection report cannot be read in evidence being a photocopy of original report and there are no circumstances on record which entitle the prosecution to lead secondary evidence over that document. Per contra, Ld APP for the State argued that State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 13/22 CNR No. DL CT020001532000 the order dated 24.04.2010 attained finality vide which the prosecution was allowed to lead the secondary evidence on the inspection report and as such now the issue of mode of proof cannot be opened at this stage.
17) To deal with this controversy as to the admissibilty of photocopy of the inspection report it is important to refer two judgments of Hon'ble High Court of Delhi . The first judgement is titled as Prem Chandra Jain Vs Shri Ram(deceased) represented by LRs Sh Sunil Kumar Arora and Others 2009 SCC online Del 3202 wherein it was held by Hon'ble High court of Delhi that the applications seeking permission to lead secondary evidence serves no purpose except for delaying the proceedings because the factual controversy cannot be adjudicated on applications. It was held that the party seeking to prove the document by secondary evidence is to lead evidence of the existence of circumstances/situations in which secondary evidence is permissible and than the same can be decided at the stage of disposal of case only as to whether case for leading secondary evidence has been made out or not and if so, whether the document stands proved by secondary evidence or not. Thus by virtue of this judgment it is clear that the application for leading secondary evidence is of no consequence as the existence of circumstances/situations in which the secondary evidence is allowed was to be proved by leading evidences and that is the matter of trial. The application moved by the prosecution to lead secondary evidence during the pendency of trial would not have decided the factual contarversy as to the existence/lost/untraceable of the inspection report at that stage.
State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 14/22 CNR No. DL CT020001532000
18) The issue as to whether this court can got into this poser as to the admissibilty of secondary evidence even though the application was allowed by the Ld Predecessor has the answer in the judgment titled as Satyam Kumar Shah and Others Vs Narcotic Control Bureau 2019 SCC Del 8409 wherein it was held by Hon'ble High Court of Delhi held that a party producing secondary evidence before the court has to satisfy the conditions as mentioned in Section 65 of Indian Evidence Act and only when the conditions of Section 65 Indian Evidence Act are satisfied, secondary evidence would be admissible. It was held that merely because an application u/s 65 Indian Evidence Act was filed and allowed, would not ipso facto makes secondary evidence admissible which is otherwise inadmissible.
19) Thus the poser is decided that it is to be adjudicated at this stage as to whether the inspection report Ex.PW4/A stands proved or not or the same can be read in evidence or not. It is to be seen at this stage as to whether the fundamental circumstances required for leading secondary evidence are fulfilled in the present case or not. The application of the prosecution which was allowed to lead secondary evidence is not a bar to consider this issue at this stage.
20) The case of the prosecution on this aspect is that the original inspection report is lost. The complainant is not a private individual rather a goverment department. Merely saying that the report was lost is not sufficient as a circumstance under which the secondary evidence can be said State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 15/22 CNR No. DL CT020001532000 to be allowed. Mere oral avernments without proving the same are of no consequence. If the document was lost than the prosecution was required to bring the circumstances vide which it could be inferred that the document was actually lost. PW1 deposed in the crossexamination that the original inspection report was with the higer officials. PW2 deposed that he had seen the original inspection report before lodging the complaint. PW4 deposed that the original report was delivered to the officer of Collector of Excise through proper channel. He deposed that he is not aware whether any FIR was lodged in respect of loss of original report or not. All these depositions of the witnesses clearly makes out that the original report was with the office of Collector of Excise. No FIR/NCR was lodged as to the alleged original inspection report. Nothing has been brought by the prosecution as to any inquiry initiated against any deliquent official of the Excise Department who had the custody of original report. All these documents were required to be brought on record to make the existence of circumstances of loss of original report. Merely saying that original report is lost does not bring out the case under Section 65 Indian Evidence Act thereby allowing the prosecution to lead secondary evidence on that aspect. There is nothing on record which could be said to satisfy the fundamental principles for allowing the secondary evidence qua the inspection report and as such this court is of the opinion that the prosecution failed to prove the inspection report and the same cannot be read in evidence.
State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 16/22 CNR No. DL CT020001532000
21) Moreover there are other circumstances also as to the inspection report for which this court is not inclined to place reliance on the inspection report. PW5 deposed that he along with PW4 visited the distillery on 23.09.1995 and submitted report on 04.10.1995. Simlarly PW4 deposed that the inspection was done in the month of September however the report is prepared in the month of October 1995. PW4 deposed that they prepared the report in Delhi however the draft was prepared in Karnatka. The alleged draft which was prepared at the place of distillery i.e Karnatka is not on record. That draft was the crucial document as that was the first document prepared at the spot and certainly that draft would have more sanctity. It is not explained as to why there is a delay in preparation in the inspection report. To prepare a report of two pages 10 days were taken. This delay certainly leads to some doubt in the inspection itself.
22) It would not be wrong to state that there is nothing on record as to the documentary evidence vide which it could be proved that any inspection was ever conducted. If three government officials went to inspection to the other State which is more than 1500 km from Delhi than those officials must have incurred expenses also. There is nothing on record that any TA(travelling allowance) was claimed by those officials. No document was got countersigned by the persons which must have been available at the distillery. There is nothing on record as to any entry was made in the local excise office/police station prior to the inspection. No entry record as to the guardroom which must have been available at the distillery has been proved.
State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 17/22 CNR No. DL CT020001532000 The prosecution could have bring further evidence as to the inspection by proving the record as to the stay of those officers in any guest house/hotel/goverment accomodation during the relevant time. No document has been proved as to vide which PW4 and PW5 and one another official was directed to make any inspection. That order of competent authority would have been useful for the present case thereby proving the presence of PW4 and PW5 at the distillery during the relevant period and their authority to conduct the inspection. The concerned excise official which must have been posted at the distillery itself could have been brought as witness for the alleged inspection but it is not so. No such step was taken by the prosecution and thus all these facts gives weight to the submissions of Ld Defence Counsel that what to say about the inspection report as there was no inspection at all.
23) Moreover, PW4 and PW5 deposed they checked the sale registers of distillery to conclude that figures were false. No original register was seized. The primary evidence was left by the inspection team at the spot only. It is stated that photocopies were seized. Again these photocopies are not even secondary evidence as they are not even attested. Further if original was available than why the photocopy were brought on record. Nothing on record as to comparison of copies with original, which is requirement of secondary evidence as per section 63 of Indian Evidence Act. Those extracts as came in the testimony of PW3 as PW3/1 to PW3/29 are of no consequence.
State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 18/22 CNR No. DL CT020001532000
24) The alleged inspection report is of 04.10.1995 while the date of complaint is 09.02.1996. Thus there is a delay of more than four months in the registration of the FIR. This delay remained unexplained. If the alleged discripency came into the notice of the concerned authorities in the month of October 1995 only than it is beyond comprehension as to why it took more than 4 months in the prepration of the complaint and the registration of the FIR.
25) In the considered opinion of this court the case of the prosecution as far as the same releates to the forged certificate of the chartered accountant concerned is also not proved beyond reasonable doubts. On this aspect the prosecution is relying upon the testimony of PW8 Inspector Krishan Kumar who deposed that he verified about the existence of chartered accountant Sh A.K Gidwani who issued the certificate from the institute of chartered accountant and also verified the alleged place of the office of the CA which is found to be wrong. He deposed that the MD and AM of the M/s Ugar Sugar Work Pvt Ltd also stated that there is no CA in the roll of the company with the name Sh A.K Gidwani.
26) It is pertinent to mention here that no witness from the Institute of Chartered Accountant has been cited as prosecution witness to state that there is no CA in the name of Sh A.K Gidwani. The alleged query which was put by PW8 with institute of chartered accountant must be in writing and reply of the same must have been received in writing only. No such communication has been brought on record. The testimony of PW8 that he State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 19/22 CNR No. DL CT020001532000 was apprised by the concerned official from the Institute of Chartered Accountant as to the nonexistence of any chartered accountant in the name of Sh A.K Gidwani is hearsay and is not admissible in evidence. The prosecution could have summon the witness from the Institute of Chartered Accountant of India with the relevant record but no such steps were taken on this aspect.
27) The sole evidence of the investigating officer that he conducted the investigation on the aspect of the existence of a particular CA without proving the evidences which was collected by him on that aspect is not sufficient. The burden of proof of the prosecution on this aspect was little more heavier and it was expected that the evidences on this aspect which was collected from the Institute of Chartered Accoutant of India must be placed on record.
28) The testimony of PW6 Sh R.P Tagore that Sh A.K Gidwani never worked with the company M/s Ugar Sugar Work Pvt Ltd is relevant but this is not sufficient to hold that there was no chartered accountant with the name A.K Gidwani, if that be so than the same was required to be proved by proving the necessary documents from the concerned authority of chartered accounts which deals with the registration/addresses/other particulars of all the chartered accountants. The burden of proof of prosecution on this aspect is also not discharged.
29) Further the alleged certificate of chartered accountant cannot be said to be false perse as it is not proved on record that the figures mentioned in State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 20/22 CNR No. DL CT020001532000 the certificate are incorrect for the want of EVCs/admissible evidence qua the stock registers etc, as discussed above.
30) To sumup it is not proved on record that the sale figures as claimed by the company M/s Ugar Sugar Works Pvt Ltd through its MD and attorney for the applied brands of liquor were false; consequent to that there is nothing on record to make out prima facie dishonest intention on the part of the company to get the license renewed; the alleged factum of conducting the physical inspection at the distillery is itself not proved beyond reasonable doubts; the inspection report is not proved as per law because the fundamental foundation/cricumstances for leading secondary evidence not came on record; the original stock registers as to the sale were not seized despite the fact that those were crucial primary evidence for the case of the prosecution; the alleged extract of sale registers of the distillery is not even the secondary evidence and cannot be read in evidence; the complaint is highly delayed; the documents collected during the investigation regarding the chartered accountant Sh A.K Gidwani not proved on record nor any witness from ICAI has been called as prosecution witness, consequently the alleged false certificate from CA not proved. The case of the prosecution stands not proved beyond reasonable doubts.
31) It is well settled law that suspicion, however grave it may be, cannot take the place of proof and there is huge difference between something that 'may be proved' and 'will be proved'. In criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. The State Vs. Sanjay Chaddha & Ors;
CIS No. 295285/16, FIR No. 78/96, PS IP Estate;
U/s. 177/197/198/199/200/468/471/120B IPC 21/22 CNR No. DL CT020001532000 large gap between ' may be true' and 'must be true', must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution before the accused could be condemned as convict. Reliance could be place upon Judgments titled as Hanumant Govind Nargundkar & anr. Vs State of M.P., AIR 1952 SC 343; Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra, AIR 1973 SC 2622; Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622; Subhash Chand Vs State of Rajasthan, (2002) 1 SCC 702; Ashish Batham vs State of MP AIR 2002 SC 3206; Narendera Singh & Anr Vs State of MP., AIR 2004 SC3249; State through CBI Vs Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan Vs State of U.P AIR 2012 SC 1979.
32) In view of above said discussion, the prosecution has failed to prove the guilt of the accused persons beyond reasonable doubts. Accordingly, accused persons are hereby acquitted of the charges framed in the present case. File be consigned to record room subject to compliance of section 437 A Cr.PC. Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2019.06.24 14:36:13 +0530 Announced in open court (Kapil Kumar) on 22.06.2019 MM5/Central District Tis Hazari Courts/Delhi, State Vs. Sanjay Chaddha & Ors; CIS No. 295285/16, FIR No. 78/96, PS IP Estate; U/s. 177/197/198/199/200/468/471/120B IPC 22/22