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. 32/12
RC No. 2(E)/2001/EOW-I/DLI
In re:
Central Bureau of Investigation
Vs.
1. Moti Lal Mathur,
S/o Shri B.L. Mathur,
R/o Pocket A-10/74-A
Kalkaji Ext,
New Delhi-19.
2. Arvind Kumar Sharma,
S/o Late Shri Shambhu Nath Sharma,
R/oJanta Flat No. 17,
Opposite Dussehera Park,
Paschim Vihar,
New Delhi - 63 .
3. Vijay Dayal,
S/o Shri Padam Dayal,
R/o C-2/159, West Enclave,
Pitampura,
Delhi - 34
4. K.V. Juneja
S/o Shri Vir Bhan
R/o A-26, Saraswati Garden,
New Delhi - 15
Date of Institution of Case : 31-01-2003
CBI Case No. 32/12 1 of 42
Date on which Judgment was reserved : 18-12-2013
Date on which Judgment was delivered : 20-12-2013
JUDGMENT
Facts 1.1 This case was registered on 24-1-2001 on complaint dt. 29-9-2000 of Shri K.B. Mahapatra, CVO, National Insurance Company Ltd. (hereinafter referred to as NIC), Calcutta alleging that, during the year 1998, accused No.1 Shri Moti Lal Mathur, the then Administrative Officer 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 Vijay Dayal of M/s Vinayak Enterprises, 1815, III floor, Bhagirath Place, Delhi, accused No. 2 Arvind Kumar Sharma, Prop. M/s Pooja International, GH-II, 122-B, Ankur Apartment, Paschim Vihar, New Delhi-63 and accused No. 4 K.V. Juneja, Prop. M/s Honey International and obtained a marine claim of Rs.2,34,652/- in favour of M/s Vinayak Enterprises, from NIC, DO-XIII, New Delhi on the basis of bogus and forged documents.
1.2 Investigation was conducted during which, inter-alia, statement of witnesses were recorded, documents were seized and specimen handwriting/signature of suspects and questioned documents were got examined from the CFSL.
1.3.1 Investigation revealed as under:-
1.3.2 Accused No. 3 Vijay Dayal, Prop. M/s Vinayak Enterprises (Insured) took a specific marine transit policy no. 360600/4500360/97 on 10-12-97 for dispatch of industrial electronic goods from New Delhi to M/s Aggarwal Electricals, 56/3, Govinda Road, Vishakhapattnam for Rs.
7,56,458/-. The consignment was sent vide Goods Receipt (herein after CBI Case No. 32/12 2 of 42 referred to as GR) No. 1054 of M/s Bhatinda Rajasthan Transport Company, 6 Milestone, P.O. Chikamberpur, U.P. Border, Ghaziabad. The insured Vijay Dayal of Vinayak Enterprises vide his letter dt. 12-1-98 intimated NIC, DO-XIII, New Delhi regarding non-delivery of the consignmen,t and enclosed letter dt. 5-1-98 of consignee M/s Aggarwal Electricals, Vishkhapattnam. 1.3.3 A claim form dt. 11-3-98 was submitted by accused No. 3 Vijay Dayal to NIC, DO-XIII, New Delhi. Accused No.1 Moti Lal Mathur, directed Sh. Anupam Gupta to process the claim and a claim file No. 45/97-98/44 of M/s Vinayak Enterprises was opened. Accused No. 2 Arvind Kumar Sharma, Prop. of M/s Pooja International was deputed on 26-2-98 as Tracer by accused No. 1 Moti Lal Mathur for tracing the consignment. Accused No. 2 Arvind Kumar Sharma submitted his report on 10-3-98 which was received by accused No.1 Moti Lal Mathur. A TA/DA bill of M/s Pooja International, vide invoice No. 2985/632 dt. 10-3-98 for Rs.12,863/-, signed by K.V. Juneja was submitted to NIC, DO-XIII, New Delhi which was paid vide cheque No. 599565 dt. 31-3-98. The claim note was prepared by Sh Anupam Gupta, Asstt. on the basis of papers given to him by accused No. 1 Moti Lal Mathur. The claim was recommended by accused No. 1 Moti Lal Mathur and approved by Shri J.N. Vats, Divisional Manager for Rs. 2,34,652/- on 25-3-98. Cheque No. 599500 dt. 31-3-98 for Rs. 2,34,652/- drawn on Indian Overseas Bank, R.K. Puram, New Delhi was received by accused No. 3 Vijay Dayal as claim amount from NIC, DO-XIII, New Delhi, the proceeds whereof were credited into Current Account No. 61154 of accused No. 3 Vijay Dayal in SBI, Jwalaheri, Paschim Vihar, New Delhi.
1.3.4 Accused No. 4 K.V. Juneja of M/s Honey International, 26-A, Jwalaheri, Paschim Vihar, New Delhi was appointed as recovery agent. He CBI Case No. 32/12 3 of 42 received documents for recovery vide acknowledgement dt. 22-5-98. An amount of Rs. 23,000/- vide cheque No. 992245 dt. 28-5-98 of SBI, Jwalaheri drawn from Current Account No. 61154 of M/s Vinayak Enterprises was deposited as recovery amount in the NIC, DO-XIII, New Delhi vide collection No. 2164 dt. 2-6-98. A recovery bill No. 0031 dt. 29-5-98 of M/s Honey International for Rs. 2,775/- was submitted by accused No. 4 K.V. Juneja to the Divisional Manager, NIC, DO-XIII, New Delhi which was recommended by accused No.1 Moti Lal Mathur. An amount of Rs. 2636/-, vide cheque No. 600565 dt. 23-6-98, was paid as recovery fee to M/s Honey International. The same was credited in Current Account No. 405 of M/s Honey International, at OBC, Paschim Vihar, New Delhi on 7-7-98.
1.3.5 Neither the consignee M/s Aggarwal Electricals, Vishakhpatnam nor the transporter M/s Bhatinda Rajasthan Company exist at the given address. Shri Sandeep Maheshwari of M/s Vinayak Enterprises whose address 1815, III Floor, Bhagirath Place, Delhi was given has denied having taken any insurance from the NIC or having sent the consignment to the said consignee. Documents submitted in respect of the claim are false/forged and bogus which were fabricated by accused No. 3 Vijay Dayal in connivance with accused No. 2 Arvind Kumar Sharma, accused No. 4 K.V. Juneja and accused No. 1 Moti Lal Mathur and facilitated accused No. 3 Vijay Dayal of M/s Vinayak Enterprises to receive an amount of Rs. 2,34,652/- from NIC, DO-XIII, New Delhi and thereby caused a loss to the tune of Rs. 2,34,652/- to NIC, DO-XIII, 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 CBI Case No. 32/12 4 of 42 Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act) and substantive offences thereof was filed against the above named accused persons.
1.5 It may be mentioned that as per the documents/letter heads of the insured/consignee Vinayak Enterprises as available in the claim file, the name of the said consignee has been mentioned as "Vinayak Enterprises". Accused No. 3 Vijay Dayal 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 Vinayak Enterprises". There is no dispute that any reference to "M/s Vinayak Enterprises" means "Vinayak Enterprises ." Thus, the consignee is being hereinafter referred to as "Vinayak Enterprises". Same is the case with respect to "Aggarwal Electricals", "Bhatinda Rajasthan Tpt. Co. Regd.", "Pooja International" and "Honey International", which have been, at many places/times, referred by the parties and the witnesses as "M/s Aggarwal Electricals", "M/s Bhatinda Rajasthan Tpt. Co. Regd.", "M/s Pooja International" and "M/s Honey International".
Supply of Copies 2.1 Copies of documents in terms of section 207 were supplied to the accused persons.
Charges 3.1 Vide order dt. 17-2-2004 of my Ld. Predecessor, charges were framed against the accused persons as under :-
a) against all the accused persons, u/s 120-B r/w sections 420/467/468/471 IPC and 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. 32/12 5 of 42
c) against accused No. 2, Arvind Kumar Sharma u/s 468 IPC,
d) against accused No. 3, Vijay Dayal u/s 420 IPC and u/s 471 r/w section 467 and 468 IPC, and
e) against accused No. 4, K.V. Juneja u/s 468 IPC.
The accused persons pleaded not guilty to the charges and claimed trial. Prosecution Evidence 4.1 PW1 Kruti Bas Mahapatra, Chief Vigilance Officer, NIC on whose instructions investigation was carried out has filed the complaint dt. 29-9-2000, Ex.PW1/B to the CBI. PW2 Sh. A.K Seth, PW3 Sh. A.K.Tiwari and PW14 Sh. A.K.Gambhir, all officers of the Vigilance Department, NIC, had conducted the investigation during which they had seized the files, including the claim file of Vinayak Enterprises, Ex.PW2/A and given their report, Ex.PW1/A. 4.2 PW6 Sh. P.K.Aggarwal, Administrative Officer, Vigilance Department, NIC has handed over 9 Marine Claim files to the CBI vide Seizure Memo dt. 8-2-2001, Ex.PW6/A and certain other documents vide his letter dt. 16-9-2002, Ex.PW6/B. PW9 Sh. C.D.Ram, Assistant, DO-XIII, NIC has also handed over certain documents vide seizure memo dt. 11-12-2002, PW9/A. 4.3 PW4 Sh. Vinod Kumar, Sr. Assistant, NIC, DO-XIII, PW-11 Sh. Anupam Rai Gupta, Sr. Assistant, NIC, DO-XIII and PW16 Smt. Parwati have deposed about the claim file Ex.PW1/A and identified the signature and handwriting of accused No.1 Moti Lal Mathur on various documents viz. notings, Ex.PW4/A and Ex.PW4/B, on the inside front cover and inside back cover of the claim file, Ex.PW2/A, hand written paper Ex.PW 4/C in the hand writing of accused No.1 Moti Lal Mathur, letter dt. 2-2-99, Ex.PW4/D of DO-
CBI Case No. 32/12 6 of 42 XIII, NIC to Vigilance Department, Delhi Regional Office, NIC, bill dt. 10-3-98, Ex.PW4/E of Pooja International for Rs. 12,863/-, disbursement voucher dt. 10-3-98, Ex.PW4/F regarding payment of Rs.12,863 to Pooja International, letter dt. 31-03-98, Ex.PW4/G of DO-XIII, NIC to Vinayak Enterprises, disbursement voucher dt. 31-3-98, Ex.PW4/H for payment of Rs.2,34,652/- to Vinayak Enterprises, letter dt. 20-3-98, Ex.PW4/J of Vinayak Enterprises, policy, PW4/K, letter dt. 12-3-98, Ex.PW4/L of Vinayak Enterprises written to DO-XIII, NIC, writing of accused No.1 Moti Lal Mathur, Ex.PW4/M, Tracer's Report dt. 10-3-98, Ex.PW4/N of Pooja International, letter dt. 18-2-98, Ex.PW4/O of NIC, DO-XIII, of Vinayak Enterprises and claim cheque dt. 31-3-98, Ex.PW4/P. 4.4 PW5 Ms. Vandana, Divisional Manager, NIC, DO-XIII, and PW7 Sh. R.C.Sood, Administrative Officer, NIC, Delhi Regional Office, have deposed about the documentation and procedure for settlement of Marine Claim and deficiencies in the claim file, Ex.PW2/A. 4.5 PW-10 Sh. R.Vaidyanathan, Chief Manager, Indian Overseas Bank, where NIC was having current account No.s 1194 and 1197 has deposed about handing over the cheques vide letter dt. 4-5-2002, Ex.PW10/A and statement of account of the NIC, Ex.PW10/B. PW17 Sh. S.N.Chaudhary of Oriental Bank of Commerce has deposed about letter dt. 26-9-2002, Ex.PW17/A written to CBI, vide which copies of account opening form and statement of account of current account No. 279 of Pooja International and current account No. 405 of Honey International were sent, Copy of seizure memo dt. 20-5-2002, Ex.PW17/A1 vide which original account opening form of Pooja International was seized, certified copy of account opening form dt. 23.05.1996, Ex.PW17/A2 alongwith specimen signature card of Pooja CBI Case No. 32/12 7 of 42 International, attested copy of statement of account, Ex.PW17/A3 of Pooja International, attested copy of account opening form , Ex.PW17/A4 of Honey International and attested copy of statement of account, Ex.PW17/A5 of Honey International. PW18 Sh. A.S.Chauhan from State Bank of India, Jwala Heri Branch , New Delhi has deposed about letter dt. 30-1-2002, Ex.PW18/A, vide which photocopy of account opening form, Mark-PW18/1 in respect of account No. 061154 of Vinayak Enterprises were sent, and certified copy of statement of account, Ex.PW18/A1.
4.6 PW12 Sh. Ashok Sehgal and PW15 Sh. Mahipal Singh have deposed about non-existence of Bhatinda Rajasthan Transport Company. 4.7 PW20 Sh. S.L.Garg and PW22 Sh. B.S.Bisht are the part IO's and PW21 Sh. Jyoti Kumar and PW23 Sh. R.P.Kaushal are the main IO's. Statements of Accused Persons 5.1 Statements of all the accused persons were recorded u/s 313 Cr.P.C. wherein they generally denied the incriminating evidence that has come against them and stated that they had been falsely implicated in this case.
5.2 Accused No. 1 Moti Lal Mathur further stated that he has worked according to his conscience and has processed and recommended similar claims in identical manner with assistance of subordinate staff like Sh. Anupam Rai Gupta and Sh. Vinod Kumar, both Senior Assistants in his office, and with other officers like Sh. J.N. Vats, Sh. Grover and Sh. H.K. Sharma, Sr. Divisional Managers. The claims were processed and recommended with due care and attention and after collecting the required documents. He had no cause to believe that any document in the claim file was false, forged or fabricated. He had followed the prescribed/established procedure while CBI Case No. 32/12 8 of 42 recommending the claim. He never intended to cause any wrongful gain to anyone or for him.
5.3 Accused No. 2 Arvind Kumar Sharma also stated that he only acted as Investigating Agency for the purpose of ascertaining certain material facts related to the claim. The exercise of investigation was carried out by one of his employees Sh. Gopal who was in the knowledge of all facts related to the case. Since no one approached him either on behalf of NIC or CBI, he had no occasion to put forward the said Sh. Gopal for answering the questions. Mr. Gopal is no more working with him. He has no reason to believe that any part of investigation report submitted on behalf of Pooja International is false or fabricated. He did his job as Investigator with due diligence and necessary attention. The report which has been given was compiled after a detailed investigation and there was no reason for him to believe if any part of it was wrong in any way.
5.4 Accused No. 3 Vijay Dayal further stated that he was an employee of Vinayak Enterprises, whose Proprietor was Sh. Sandeep Maheshwari. He used to do whatever work was assigned to him by his employer. Sh. Sandeep Maheshwari is real brother of his childhood friend Sh Vinay Maheshwari. He had opened a bank account near his ancestral shop at Jwalaheri, Paschim Vihar. He was authorised by his Employer as Authorized Agent. On the instructions of his Employer, the insurance policy was taken. The said firm lodged a claim which was genuinely approved. The amount of claim was paid by way of cheque which was deposited in the account of said firm. He being the employee of the said firm, has been falsely implicated. 5.5 Accused No. 4 K.V. Juenja also stated that he had made recovery on behalf of NIC. He had contacted the transporter who was very CBI Case No. 32/12 9 of 42 much in existence. During talks with the transporter, he was informed that the transporter had already settled recovery with the insured Vinayak Enterprises. He accordingly surrendered the original documents to the transporter who helped him in getting the recovery cheque from the aforesaid insured. He had acted according to the ethics of his profession and had no reason to believe that there was anything wrong with the transaction.
Defence evidence 6.1 Accused No. 1 Moti Lal Mathur has examined two witnesses i.e. DW 1 and DW 2 in his defence besides himself appearing as a witness u/s 315 Cr.P.C. r/w Sec. 21 of the PC Act. DW 1 Sh. P. Krishna Kumar is Assistant Manager, Regional Office, NIC who has deposed about destruction of record i.e. audit reports, confidential reports of accused No. 1 Moti Lal Mathur and cheque dishonour register, for the relevant period, in terms of company's circular dt. 23-4-13, Ex.DW1/B. He has also stated about the applicability of Claims Procedural Manual, Ex.DW1/C before new guidelines were issued vide claims facilitation, Ex.DW1/A in the year 2007. 6.2 DW 2 Sh. Dinesh Gupta, Assistant Manager, DO-XIII, NIC has testified about destruction of record i.e. claim intimation register and the underwriting docket of the policy in terms of company's circular dt. 23-4-13, Ex.DW1/B. 6.3 DW 3 Moti Lal Mathur has testified that at the time of recommendation, all notings and verifications were in the file. He had no role in the appointment of the Verifier. He is not required to verify the Surveyor's Report, the Verifier's Report, the existence of Consignor/Consignee, the consignment or the Transporter. As Administrative Officer, he is only required to check whether the surveyor's report and verifier's report are in consonance CBI Case No. 32/12 10 of 42 with the insurance particulars, the premium has been collected, the claim is covered within the scope of the Insurance Policy, whether details of packing, if any, are given in the proposal form and any adverse remark given by the Surveyor or Verifier. As per the policy, within three days of the completion of the required documents, the claim is to be paid. If the goods are insured and claim is filed within the validity of the insurance policy, then, he cannot reject the claim provided all the documents are in order. He has never been pointed out any irregularity in processing of the claims in any of the aforesaid audits or checks. He has not done anything wrong. While processing the claim, he had acted in utmost good faith.
Arguments on behalf of CBI 7.1 Sh. Manoj Shukla, Ld. PP has argued that prosecution has been able to prove its case beyond a reasonable doubt. PW12 Sh Ashok Sehgal and PW15 Sh Mahipal Singh have proved the non-existence of Bhatinda Rajasthan Company, PW4 Sh Vinod Kumar, PW11 Sh Anupam Rai Gupta and PW16 Smt Parwati have proved that the claim was processed and recommended by accused no. 1 Moti Lal Mathur. PW6 Sh P.K. Aggarwal and PW9 Sh C.D. Ram have proved the handing over of the claim file and other documents. PW5 Ms Vandana and PW7 Sh R.C. Sood have proved the procedure for settlement of the claim and deficiencies in the claim file. PW10 Sh R. Vaidyanathan has confirmed the debit of sanction amount from the account of NIC. PW2 Sh A.K. Seth, PW3 Sh A.K. Tiwari and PW14 Sh A.K. Gambhir have proved the investigation conducted by them. PW1 Kruti Bas Mahapatra has proved the complaint dt. 29-9-2000. PW20 Sh S.L. Garg, PW21 Sh Jyoti Kumar, PW22 Sh B.S. Bisht and PW23 Sh R.P. Kaushal have proved various aspects of investigation. He further submits that besides direct CBI Case No. 32/12 11 of 42 evidence, the circumstantial evidence brought on record proves that all the accused persons had conspired to cheat NIC.
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 accused No.1 Moti Lal Mathur has recommended the claim in utmost good faith within his financial powers, relying upon the report of the tracer and documents submitted by the claimant. He had no reason to doubt the said documents. In this case the claim note was prepared by PW 4 Shri Vinod Kumar and he has not stated that the same was prepared under any pressure. Further the claim file, when put up before the said accused, was complete in all respects. At the time of seizure of claim files, no inventory of the documents contained in the files was prepared and the files were not sealed. He also argued that Shri Sandeep Maheshwari, actual owner of Vinayak Enterprises has neither been cited nor examined as a witness. There is no direct evidence that the consignor Aggarwal Electricals did not exists. The testimony of PW 12 Shri Ashok Sehgal with regard to non existence of Bhatinda Rajasthan Transport Company is not clear and definite. The testimony of PW 19 Shri Sidharth Joshi is hearsay as the agency was in the name of his wife Poonam Joshi, who has not been examined. The subordinate of accused No.1 Moti Lal Mathur, who prepared the claim note and senior who had sanctioned the claim have not been made accused. No irregularity was found in his recommendation by any audit team. Arguments on behalf of Accused No. 2, Arvind Kumar Sharma.
8.2 Sh. R.K. Kohli, counsel for accused No.2 Arvind Kumar Sharma has argued that in the report dt. 10-3-98, Ex.PW4/N, it is clearly stated that representative of the said accused has gone for tracing the consignment.
CBI Case No. 32/12 12 of 42 Thus, he cannot be held liable if any fact has been wrongly stated in the said report. The report is not disowned by accused No.2 Arvind Kumar Sharma and he is not accused of having made the same in somebody else name or by the authority of somebody else. Therefore, the report is not a false document in terms of Section 464 IPC and thus no forgery in terms of Section 468 IPC has been committed by him. In this regard he has relied upon Md. Ibrahim & Ors. Vs. State of Bihar & 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. 2 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. He further contends that neither Vigilance Team of NIC nor CBI ever asked him as to who was the representative who had traced the consignment. Had he been so asked he would have disclosed the same. He further argued that there is no evidence to prove conspiracy, there is no trail of money and thus conspiracy cannot be assumed against the said accused. Ld. Counsel also 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 CBI Case No. 32/12 13 of 42 after it was credited in the account of the claimant. 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 Subramaniam Swamy Vs. A. Raja, Special Leave Petition (Crl.) No. 1688 of 2012 in Civil Appeal No. 10660 of 2010, 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, Appeal (Crl.) 495 of 2004, Rabindra Kumar Dey Vs. State of Orissa, 1977 AIR 170, S.L. Goswami Vs. State of Madhya Pradesh, 1972 AIR 716, R. Venkatakrishnan Vs. Central Bureau of Investigation, Criminal Appeal No. 76 of 2004 and State of Tamil Nadu through Superintendent of Police and CBI/SIT Vs. Nalini and 25 others, decided on 11-05-1999, He finally submits that prosecution has failed to prove its case against the said accused.
Arguments on behalf of Accused No. 3, Vijay Dayal.
8.3 Sh. C.L.Gupta, counsel for accused No.3 Vijay Dayal has argued that the said accused was only an employee/authorized signatory of Vinayak Enterprises who has done his duty as per directions of his employer Sh. Sandeep Maheshwari. Statement of Sh. Sandeep Maheshwari was not recorded by the CBI and he was not cited as a witness. He being an employee of the firm is not responsible for the actions of the firm. Ld. Counsel further argued that except for reply Ex.PW2/G of Sh. P.K.Nayak, there is no evidence regarding non-existence of the consignee Aggarwal Electricals. Since Sh. P.K.Nayak has not been examined, the said reply is inadmissible in evidence. He further argued that statement of PW12 Sh. Ashok Sehgal, regarding non- existence of Bhatinda Rajasthan Transport Company is not conclusive since CBI Case No. 32/12 14 of 42 a person's lack of knowledge about a particular business establishment does not prove that the same is non-existence. Further there is no evidence of meeting of mind between the accused persons and thus prosecution has failed to prove any conspiracy between the accused persons. Ld counsel has also relied upon Ashok Kumar Nayyar Vs. The State, 2007 (2) JCC 1489, Anil Maheshwari Vs. CBI, Cri. Appeal No. 1455/2012, decided by Hon'ble High Court of Delhi on 28-5-13 and Bhagirath Vs. State of Madhya Pradesh AIR 1976 SC 975. He thus submits that accused No.3 Vijay Dayal is entitled for acquittal. Written submissions on the above lines were also filed on behalf of accused No. 3 Vijay Dayal.
Arguments on behalf of accused No. 4, K.V.Juneja.
8.4 Sh. R. K. Kohli, Ld. Counsel for accused No. 4 K.V. Juneja has argued that the only allegation against accused No.4 K.V. Juneja is that he has signed TA/DA bill of Pooja International and that no recovery has been made from the transportor. He contends that only three documents had been signed by accused No.4 K.V. Juneja i.e. TA/DA bill of Pooja International, acknowledgment of receipt of documents as recovery agent and bill dt. 29-5-98, Ex.PW4/B. None of these documents were made claiming to be somebody else or under the authority of somebody else. Thus, section 464 IPC is not attracted and he has not committed any forgery. He has further argued that signing of TA/DA bill of Pooja International is per-se not an offence. He further contends that deposit of recovery amount, which had come from the account of Vinayak Enterprises does not amount to any offence as Vinayak Enterprises had already taken the recovery amount from the transporter Bhatinda Rajasthan Transport Company and he has also received the claim amount from the NIC and thus he could not have retained CBI Case No. 32/12 15 of 42 the recovery amount. This clarification was not sought from him either by the Vigilance Team of NIC or the CBI. Had anybody sought clarification from him he would have explained the same. Ld. Counsel further argued that accused No. 4 K.V. Juneja is not involved in any conspiracy since the charge against the accused persons is entering into a criminal conspiracy for obtaining claim amount and accused No.4 K.V. Juneja came into picture after the claim amount was sanctioned. He submits that the claim was lodged on 12-1-98 and it was paid on 31-3-98. However, the documents for recovery were handed over to him on 22.05.1998. Thus he came into picture after the objective of conspiracy had already been achieved. He has relied upon State of Tamil Nadu through SP, CBI Vs. Nalini and others decided on 11-05-1999 in this regard. He further argues that even otherwise recovery is not mandatory in every case. He thus concludes that prosecution has failed to prove its case against the above accused.
8.5 The general propositions of law laid down in the judgments cited by the parties have not been disputed.
Points for Determination.
9.1 I have heard all the parties and have also perused the record. In the instant case as per the charges framed, the following points are required to be determined:-
A. Charge u/s 120-B r/w Section 420, 467, 468, 471 IPC & Section 13 (2) r/w Section 13 (1) (d) of the PC Act, against all the accused persons namely accused No. 1, Moti Lal Mathur, accused No. 2, Arvind Kumar Sharma, accused No. 3, Vijay Dayal and accused No. 4, K.V. Juneja.
CBI Case No. 32/12 16 of 42
i. Whether during the year 1998, at New Delhi and other places,
all the accused persons namely accused No. 1, Moti Lal Mathur, accused No. 2, Arvind Kumar Sharma, accused No. 3, Vijay Dayal and accused No. 4, K.V. Juneja entered into an agreement?
ii. If so, whether they agreed to cheat NIC, DO-XIII, New Delhi by fraudulently inducing it to sanction insurance claim in the name of Vinayak Enterprises, Delhi under the proprietorship of accused No. 3, Vijay Dayal, to the extent of Rs.2,34,652/- on the basis of forged/bogus/false documents i.e. invoice, G R, survey report etc. and by using as genuine such documents and by commission of criminal misconduct by public servant i.e. accused No. 1, Moti Lal Mathur ?
iii. If so, whether in pursuance of the said agreement, accused No. 3, Vijay Dayal, Proprietor of Vinayak Enterprises obtained marine policy No. 45000360/97 for dispatch of Industrial Electronic Goods from Delhi to Aggarwal Electricals, Vishakhapatnam vide GR No. 1054 of Bhatinda Rajasthan Transport Company, Ghaziabad and intimated NIC, DO-XIII, New Delhi regarding non delivery of consignment and submitted claim form and the amount of insurance claim was credited into his account and accused No. 1, Moti Lal Mathur directed his assistant to process the claim and appointed accused No. 2, Arvind Kumar Sharma, Proprietor of Pooja International for tracing the consignment and accused No. 2, Arvind Kumar Sharma submitted false tracing report and accused No. 1, Moti Lal Mathur recommended the claim on the basis of false/forged/bogus documents i.e. G.R., invoice, survey report etc. and the claim of Rs.2,34,652/- was sanctioned and accused No. 4, K.V. Juneja, employee of Pooja International submitted false TA/DA Bill on CBI Case No. 32/12 17 of 42 behalf of Pooja International and received documents on behalf of Honey International, recovery agent and an amount of Rs.23,000/- was deposited as recovery amount from the account of Vinayak Enterprises of which accused No. 3, Vijay Dayal was Proprietor and accused No. 4, K.V. Juneja raised false bill before NIC, DO-XIII, New Delhi ?
B. Charge u/s 13 (2) r/w section 13 (1) (d) of the PC Act against accused No. 1, Moti Lal Mathur.
(i) Whether during the year 1998, accused No. 1, Moti Lal Mathur was a public servant i.e. Administrative Officer, NIC, DO-XIII, New Delhi?
(ii) If so, whether during the above period at Delhi and other places, accused No. 1, Moti Lal Mathur obtained pecuniary advantage to the tune of Rs.
2,34,652/- for accused No. 3, Vijay Dayal of Vinayak Enterprises and caused corresponding loss to the NIC by persuading to forward and recommending the claim proposal on the basis of false/forged/bogus documents i.e. invoice, GR, survey report etc. 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 468 IPC against accused No. 2, Arvind Kumar Sharma.
(i) Whether during the year 1998 at Delhi and other places, accused No. 2, Arvind Kumar Sharma, being Proprietor of Pooja International, was appointed as Tracer, in the claim of Vinayak Enterprises ?
(ii) If so, whether accused No. 2, Arvind Kumar Sharma committed forgery by submitting a false tracing report to NIC, DO-XIII, New Delhi without tracing the CBI Case No. 32/12 18 of 42 consignment ?
(iii) If so, whether accused No. 2, Arvind Kumar Sharma intended that the aforesaid forged document i.e. bogus report shall be used for the purpose of cheating NIC?
D. Charge u/s 420 IPC against accused No. 3, Vijay Dayal.
(i) Whether during the year 1998 at Delhi and other places, accused No. 3, Vijay Dayal deceived NIC, DO-XIII, New Delhi?
(ii) If so, whether accused No. 3, Vijay Dayal induced NIC, DO-XIII, New Delhi to sanction insurance claim of Rs.2,34,652/- in favour of Vinayak Enterprises on the basis of false/bogus/forged documents i.e. invoice, survey (sic tracer's) report, GR etc. ?
(iii) If so, whether accused No.3, Vijay Dayal had induced NIC, DO-XIII, New Delhi as above dishonestly?
(iv) If so, whether accused No. 3, Vijay Dayal received the cheque of claim amount which was credited in account of Vinayak Enterprises of which, he was the Proprietor?
E. Charge u/s 471 r/w section 467 & 468 IPC against accused No. 3, Vijay Dayal.
(i) Whether during the year 1998, at Delhi and other places, accused No. 3, Vijay Dayal used false/forged/bogus documents i.e. invoice, GR, Survey tracer's Report etc., as genuine for inducing NIC, DO-XIII, New Delhi to sanction insurance claim of Rs.2,34,652/- in favour of Vinayak Enterprises, of which he was the Proprietor?
(ii) If so, whether he had used the aforesaid documents as genuine knowing CBI Case No. 32/12 19 of 42 or having reason to believe the same to be forged?
(iii) If so, whether he did so fraudulently or dishonestly?
F. Charge u/s 468 IPC against accused No. 4, K.V. Juneja.
(i) Whether during the period 1998 at Delhi and other places, accused No. 4, K.V. Juneja, being Proprietor of Honey International was appointed as Recovery Agent in the claim of Vinayak Enterprises ?
(ii) If so, whether accused No. 4, K.V. Juneja committed forgery by depositing Rs.23,000/- as recovery amount, but this amount was actually withdrawn from the account of Vinayak Enterprises and he received recovery fee for which he was not entitled ?
(iii) If so, whether accused No. 4, K.V. Juneja intended that the aforesaid deposit of recovery amount 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. 32/12 20 of 42 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, AIR 1984 SC 1622].
10.4 In criminal matters, the prosecution is required to prove its case beyond a reasonable doubt. A benefit of doubt is the condition of the mind which exists where the judges cannot say that they feel an abiding condition, a moral certainty of the truth of the charge. It must not be a mere doubt of a vacillating mind that has not the moral courage to decide upon a difficult and complicated question and therefore, takes shelter in an idle scepticism (vide 1977 CrLJ 59) 10.5 It is well settled that the burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.
10.6 However, the rule in section 106 of the Act would apply when the CBI Case No. 32/12 21 of 42
facts are 'especially within the knowledge of the accused' and it would be impossible or at any rate disproportionately difficult for the prosecution to establish such facts which are 'especially within the knowledge of the accused'. The prosecution is not required to eliminate all possible defences or circumstances which may exonerate him. If certain facts are in the knowledge of the accused then he has to prove them. Of course the prosecution has to prove prima facie case in the first instance. In this regard reference can be made to Murlidhar v. State of Rajasthan, AIR 2005 SC 2345, State of Punjab v. Karnail Singh, (2003) 11 SCC 271, Trimukh Maroti Kirkan v. State of Maharashtra, 2007 Cr LJ 20 (SC), Santosh Kumar Singh v. State, (2010) 9 SCC 747 and Ram Singh v. State, 2011 Cr LJ 618 (Raj.), AIR 1959 SC 1390, AIR 1937 Rang 83, 1968 Cri LJ 848, AIR 1967 Mys 79 and 1964 (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 CBI Case No. 32/12 22 of 42 Kerala, (2001) 1 SCC 378, Sherimon Vs. State of Kerala, (2011) 10 SCC 768, P.K. Narayanan Vs. State of Kerala, (1995) 1 SCC 142, State of M.P. V Sheetla Sahai, 2009, Cr. LJ 4436, Shivaji Saheb Rao Bobde v. State of Maharashtra, AIR 1973 SC 2622, Harendra Narain Singh v. State of Bihar, AIR 1991 SC 1842 and Baboo Ram, v. State, 1996 Cri LJ 483.
10.8 The essence of conspiracy is unlawful combination and the complicity of the accused has to be decided after considering all the circumstances proved, before, during and after occurrence. Agreement between the conspirators may also be proved by necessary implication. It is not necessary that each member of a conspiracy must know all the details of the conspiracy. Facts established should be consistent only with the hypothesis of guilt of the accused. It does not mean that each and every 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 CBI Case No. 32/12 23 of 42 can be made to Dharnidhar v. State of Uttar Pradesh, (2010) 7 SCC 759 and State of Maharashtra v. Sukhdev Singh, AIR 1992 SC 2100.
10.10 It is also well settled that evidence of one accused or admission or action or statement made by one of the accused can be used as evidence against the other by virtue of Section 10 of the Indian Evidence Act. In this regard reference can be made to Tribhuvan Nath Vs. State of Maharashtra, AIR 1973 SC 450 and Kehar Singh v State, AIR 1988 SC 1883. 10.11 Both the parties have relied upon Claims Procedural Manual, which was admittedly applicable at the relevant time. The said manual, while laying down the procedure for processing and settlement of marine claims provides that the procedures laid down in the Manual are not exhaustive and are of general nature. It further provides that in some cases, the requirements 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 which has come on record and arguments advanced by the parties, it appears that the following facts are not in dispute:-
(a) Accused No. 1 Moti Lal Mathur was a public servant i.e. Administrative Officer, NIC. DO-XIII, New Delhi,
(b) Accused No. 3 Vijay Dayal of Vinayak Enterprises took a Marine CBI Case No. 32/12 24 of 42 Transit Policy No. 3606001/4500360/97 on 10-12-1997 for dispatch of Industrial Electronic Goods from New Delhi to Aggarwal Electricals, 56/3, Govinda Road, Vishakhapatnam for Rs.7,56,458/-,
(c) Accused No.3 Vijay Dayal sent claim intimation vide his letter dt. 12-1-98 to NIC, DO-XIII, regarding non delivery of the consignment,
(d) Accused No.3 Vijay Dayal submitted claim form dt. 11-3-98 to NIC, DO-XIII,
(e) Accused No. 2 Arvind Kumar Sharma of Pooja International was appointed as tracer by accused No.1 Moti Lal Mathur for tracing the consignment,
(f) Accused No.2 Arvind Kumar Sharma submitted report dt. 10-3-98,
(g) Accused No.2 Arvind Kumar Sharma submitted bill dt. 10-3-98 for Rs.
12,863/- to DO-XIII, NIC and the same was paid vide cheque No. 599565 dt. 31-3-98 by DO-XIII, NIC,
(h) The claim note was prepared by Anupam Gupta, recommended by accused No. 1 Moti Lal Mathur and sanctioned by Sh. J.N.Vats, Divisional Manager on 25-3-98 for Rs.2,34,652/-,
(i) Claim cheque No. 599500 dt. 31-3-98 for Rs.2,34,652/- drawn on Indian Overseas Bank, New Delhi was received by accused No.3 Vijay Dayal and proceeds thereof were credited into current account number 61154 of accused No.3 Vijay Dayal at SBI Jawala Heri, Paschim Vihar, New Delhi,
(j) Accused No.4 K.V. Juneja of Honey International, 26-A, Jwala Heri, Paschim Vihar, New Delhi was appointed as recovery agent,
(k) Accused No.4 K.V. Juneja deposited purported recovery amount of Rs.23,000/- vide cheque No. 991145 dt. 28-5-98, which was taken from current account No. 61154 of Vinayak Enterprises, at SBI, Jwalaheri and not CBI Case No. 32/12 25 of 42 from the transporter Bhatinda Rajasthan Transport Company,
(l) Recovery fee of Rs.2636/- was paid to accused No.4, K.V. Juneja on the basis of his bill dt. 29-5-98 for Rs.2775/-, vide cheque No. 600656 dt. 23-6-98 and the same was credited in current account No. 405 of Honey International at Oriental Bank of Commerce, Paschim Vihar, New Delhi. Facts in Dispute 12.1 However, the following facts are in dispute :-
(a) Aggarwal Electricals did not exists at its given address,
(b) Bhatinda Rajasthan Transport Company did not exists at its given address,
(c) No consignment, for which insurance policy was taken by accused No. 3 Vijay Dayal, was sent by Vinayak Enterprises to Aggarwal Electrical, and
(d) The tracers report dt. 10-3-98 submitted by accused No. 2 Arvind Kumar Sharma is false.
Appreciation of Evidence 13.1 The main fact in issue in this case is whether there was any loss of consignment of industrial electronic goods purportedly sent by Vinayak Enterprises, Delhi to Aggarwal Electricals, Vishakhapatnam through Bhatinda Rajasthan Transport Company, Chikambarpur, Delhi-UP Boarder, Ghaziabad as covered by the insurance policy. The essential parts/components of the purported loss of consignment are existence of Vinayak Enterprises, Delhi, existence of Aggarwal Electricals, Vishakhapattnam, existence of Bhatinda Rajasthan Transport Company, Chikambarpur, Delhi-UP Boarder, Ghaziabad, sending of the consignment of industrial electronic goods and loss/damage to the said consignment. If any of the above part/component of the transaction in question is disproved, it would, by necessary implication, follow that there CBI Case No. 32/12 26 of 42 was no loss of consignment and that the claim amount has been fraudulently obtained.
13.2 Prosecution has led evidence and Ld. PP has advanced argument to the effect that complete documents required for processing and settlement of claim are not available in the claim file which shows that the claim has been fraudulently obtained. Ld. Defence counsels contend that the complete chain of handing over of record has not been proved and thus absence of any document in the claim file is of no relevenace. It is pertinent to note that the claim files were the record of DO-XIII, NIC. The officer/official of DO-XIII from whose custody, the said files/record were seized for the first time has neither been specified nor examined by the prosecution to prove that complete record with respect to the claim in question was seized, or that the 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.
13.3 PW18 Sh A.S. Chauhan has, inter-alia, proved the letter dt. 30-01-2002 Ex. PW18/A of SBI, Jwala Heri Branch, New Delhi vide which photocopy of account opening form, Mark PW18/1, in respect of account No. 061154 of M/s Vinayak Enterprises was provided along with statement of account of account of said account. When the above evidence was put up to CBI Case No. 32/12 27 of 42 accused No. 3 Vijay Dayal in his statement u/s 313 Cr. P.C he stated that the same was matter of record. It is also pertinent to note that in the account opening form of Vinayak Enterprises, Mark PW18/1, the photograph of accused No.3 Vijay Dayal has been affixed and he has also signed as Proprietor of Vinayak Enterprises. The address of Vinayak Enterprises has been given as " 26, Jawala Heri, Paschim Vihar, Delhi-53" . However, in the policy taken by Vinayak Enterprises the address of the said firm has been mentioned as " 1815, 3 rd floor, Bhagirath Place, Delhi-110006." There has been no explanation regarding the different addresses as above. This shows the dishonest intention on the part of accused No.3 Vijay Dayal at the time of taking Insurance Policy itself. The contention of Ld. counsel that accused No.3 Vijay Dayal was only an employee of Vinayak Enterprises is also belied by the above account opening form wherein accused No.3 has been shown as the Proprietor of the said firm. The admission of the IO PW 23 R.P. Kaushal, during his cross examination behalf of accused No.3, Vijay Dayal, that Vinayak Enterprises whose Proprietor was Shri Sandeep Maheshwari, was in existence cannot negate the aforesaid documentary evidence. 13.4 The only evidence led by the prosecution with regard to non existence of the consignee Aggarwal Electricals is through PW2 Sh. A. K. Seth who testified that he has sent letter dt. 21-4-99, Ex.PW2/F, vide which he had requested the Divisional Manager, Vishakhapatnam Divisional Office to confirm whether Aggarwal Electricals was in existence at the address given in letter dt. 5-1-98, purportedly written by Aggarwal Electricals to Vinayak Enterprises, Delhi, if they had any dealing with Vinayak Enterprises and also if they had written the said letter to Vinayak Enterprises. He further deposed that Mr. P.Nayak, Sr. Divisional Manager, NIC, Vishakhapatnam, DO-I sent CBI Case No. 32/12 28 of 42 letter dt. 10-5-99, Ex.PW2/G. He has also identified signature of Mr. P.Nayak on the said letter. In letter, Ex.PW2/G. Mr. P. Nayak had confirmed that Aggarwal Electricals did not exists at the address given in the letter which was verified by their Administrative Officer Mr. P.L.N.Rao. Mr. P.L.N.Rao has neither been cited nor examined by the prosecution. No other evidence has been led by prosecution in this regard. As argued by Ld. Counsel for accused No.3 Vijay Dayal, there is no direct evidence on this fact. The testimony of PW2 Sh. A.K. Seth being hearsay is not admissible. Thus there is no admissible evidence to hold that Aggarwal Electricals was not in existence at 56/3, Govinda Road, Vishakhapattnam.
13.5 It is pertinent to mention that the address of the transporter Bhatinda Rajasthan Transport Company Regd., as per photocopy of the GR/Consignment Note No. 1054, dt. 10-12-97, placed at page No. 31 of the claim file, Ex.PW2/A, is " 6 th Milestone, Post Office Chikambarpur, UP Border, Ghaziabad." The evidence led by the prosecution with regard to non existence of Bhatinda Rajasthan Transport Company is through PW12 Sh. Ashok Sehgal and PW 15 Sh. Mahipal Sharma.
13.6 PW 12 Sh. Ashok Sehgal, who is doing business under the name and style of M/s Assam Golden Transport Corporation, opposite OBC, near Telephone Exchange, 6th, milestone, Chikambarpur, UP Border, Ghaziabad, UP testified that he used to know about the transporters who were his neighbours but he did not know the entire transporters in the area. Mostly, he knew the transporters near the telephone exchange. As per his knowledge, Bhatinda Rajasthan Transport Company, opposite Telephone Exchange UP Border, Ghaziabad was not existing at the said address till April CBI Case No. 32/12 29 of 42 2003, when he shifted from the said place. During his cross-examination, he admitted that Chikambarpur is an unauthorized area and there is no systematic inhabitation. The construction in the area is not as per the sanctioned plan and is raised in a haphazard manner. In some plots, there are various rooms and each room is occupied by separate transporter. He denied that that some of the transporters have not affixed their sign board outside their premises. He further stated that mostly all the transporters have affixed their signboards. There is a trade association of transporters in the area. In the year 1989, a transport association was raised, headed by Mr. S.S. Bajwa, which had compiled names and details of all transporters working in the area and issued them certificates. The basis of his saying that the above firm was not existing at the said address is his personal knowledge about the area and the transporters working there as they used to have interaction on different occasions. He admitted that the said transporter was not within his vicinity and therefore not in his knowledge. It may be possible that they may be operating from interior which may not be in his knowledge. It may be seen that the address of Bhatinda Rajasthan Transport Company and that of M/s Assam Golden Transport Corporation is of the same area. Thus, PW 12 Sh Ashok Sehgal, who is in the same business, was in the normal course likely to know about Bhatinda Rajasthan Transport Company if their office existed at 6th Milestone, Post Office, Chikambarpur. 13.7 PW 15 Sh. Mahipal Sharma posted at Police Chowki Seema, P.S. Sahibabad, Distt. Ghaziabad UP testified that he has never heard of the transporter if the name of Bhatinda Rajasthan Transport Company, M/s K.R. Golden Carriers, Goods Transport Corporation and M/s Singh Roadlines and they were not in existence in the Chikkambarpur area. During his cross-
CBI Case No. 32/12 30 of 42 examination, he admitted that area of Chikkambarpur is an unregulated and unauthorized area with no municipal number. He admitted that he has no knowledge about the transporters in the area of Chikambarpur, in the years 1997, 1998 and 1999.
13.8 It has been argued on behalf of the accused persons that as per the Vigilance Report Ex. PW1/A, the vigilance team had met Bhatinda Rajasthan Transport Company at the given address but they have not been able to confirm the transaction, which indicates that the said transport company was in existence. According to Ld. PP, in the report, it has been wrongly written that the vigilance team members had met Bhatinda Rajasthan Transport Company at the given address. It is considered that the Vigilance Report in this regard cannot be relied upon since in the same report it has also been stated that the claim was passed by Shri. Y.P. Babbar, Divisional Manager for Rs 2,34,652/-, whereas actually it was passed by Shri J.N. Vats. The fact that the Vigilance team members had met Bhatinda Rajasthan Transport company appears to have been wrongly written. 13.9 It is also pertinent to note that the cheque No. 992245, dt. 28-5-98 for Rs.23,000/-, i.e. the recovery amount was issued from current account No. 61154 of Vinayak Enterprises and not from the transporter. As per accused No. 4 K.V. Juneja, he was informed by the transporter that he has already settled recovery with the insured Vinayak Enterprises. He accordingly surrendered the documents to the transporter who helped him in getting the recovery cheque from Vinayak Enterprises. It has been thus argued on behalf of accused No. 4 K.V. Juneja that he has done no wrong in depositing the cheque of recovery amount obtained from the insured Vinayak Enterprises. However, no such defence has been taken by accused No. 3, CBI Case No. 32/12 31 of 42 Vijay Dayal. PW 18 Shri A.S. Chauhan has proved the account opening form, Mark PW 18/1 in respect of account No. 061154 of Vinayak Enterprises. This witness has not been cross-examined by accused No. 3. Further, when the photocopy of statement of account Ex.PW18/A-1 of his account duly certified as per bankers Book of Evidence Act was put to him, the said accused stated that the document being photocopies, he cannot say anything about the same. The contention of accused No. 4 K.V. Juneja is belied by the fact that the receipt dt. 2-6-98 of NIC regarding the recovery amount, placed at page no. 27 of the claim file, Ex.PW2/A mentioning that the said sum was received from Bhatinda Rajasthan Transport Company. It is also not the case of the said accused that he has informed DO-XIII, NIC that the recovery amount had already been paid by the said transporter to the insured and, therefore, Vinayak Enterprises was issuing the cheque of recovery amount. Once, it is proved that the cheque for recovery amount was issued by Vinayak Enterprises and not by the aforesaid transporter, the onus lied upon the accused to prove the circumstances under which it came to be so issued. However, no evidence has been led by the accused persons in this regard. Thus, it is clear that though the purported recovery amount was shown to have been received from Bhatinda Rajasthan Transport Company, cheque of the same was issued from the account of Vinayak Enterprises. Therefore, no amont has been actually recovered from Bhatinda Rajasthan Transport Company. The defence now taken by accused No. 4 K.V. Juneja appears to be an afterthought. The testimony of PW 12 Ashok Sehgal when seen in light of the aforesaid fact leads to the inference that in all probability no transport company in the name of Bhatinda Rajasthan Transport Company existed at its given address. It can be safely concluded, from the above evidence, that no CBI Case No. 32/12 32 of 42 consignment was covered by the policy, was sent by Vinayak Enterprises. Consequently, there was no loss of consignment and the claim amount has been fraudulently obtained the basis of forged documents. 13.10 Further Pooja International of which accused No. 2 Arvind Kumar Sharma is the Proprietor was appointed as tracer to trace the consignment. In his report, dt. 10-03-98, Ex.PW4/N, it is stated that Pooja International has deputed their tracer/representative who had, inter-alia, visited the insured Vinayak Enterprises, the office of the carrier, the carrier's godown's office at UP Border and spoken to their representatives and concluded that the insured has suffered a loss to the tune of Rs.2,34,652/- by way of short delivery of consignment. In view of the fact that no consignment, as covered by policy had been sent, the report, Ex.PW4/N is, by necessary implication false.
13.11 Admittedly, accused No.4 K.V. Juneja has not made any recovery from the transporter Bhatinda Rajasthan Transport company but he has deposited the purported recovery amount vide cheque No. 992245 dt. 28-5-95 from account No. 61154 of Vinayak Enterprises, at SBI Jawala Heri. His explanation that the transporter had already settled the recovery with the insured Vinayak Enterprises and that he surrendered the original documents to the transporter who helped him in getting the cheque from the insured is belied by the fact that in the receipt dt. 2-6-98 for Rs 23,000/-, placed at page 27 of the claim file Ex. PW2/A, the said amount is shown to have been received from Bhatinda Rajasthan Transport Company. Thus, it is clear that accused No.4 K.V. Juneja was also the party to the conspiracy to cheat NIC.
13.12 It has also been argued that even if conspiracy to cheat NIC is proved in respect of the other accused persons, there is no evidence that CBI Case No. 32/12 33 of 42 accused No. 4 K.V. Juenja was a party to the said conspiracy as he came into picture later on after the objective of conspiracy was achieved with the payment of the claim amount. Ld P.P argues that accused No. 4 K.V. Juneja was involved in the conspiracy from the very beginning as he has also signed the TA/DA claim bill, dt. 10-3-98, Ex.PW4/E. It is considered that the conspiracy entered into by the accused persons was not only limited to obtaining the claim amount but also to do all such concomitant acts i.e. completion of the record etc. which would prevent the detection thereof. It is well settled that subsequent conduct of an accused which destroys the presumption of innocence is a relevant fact which can be considered. In this regard, reference can be made to Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), AIR 2010 SC 2352 and Anant Chintaman Lagu Vs. State of Bombay, AIR, 1960 SC 500. In case of cheating, the subsequent conduct of the accused can be an evidence to show the previous dishonest intention (vide R Vs. Heeramun, 5 WR Cr 5). Thus, it cannot be said that accused No. 4 K.V. Juneja came into picture only after objective of the conspiracy was achieved.
13.13 Ld. P.P has argued that accused No. 2 Arvind Kumar Sharma, accused No. 3 Vijay Dayal and accused No. 4 K.V. Juenja could not have cheated NIC by obtaining claim amount based on bogus report without connivance of accused No. 1 Moti Lal Mathur. On the other hand, Ld. Counsel for the said accused contends that accused No. 1 Moti Lal Mathur acted in good faith and had no knowledge if any fraud was being committed. It is considered that there is no cogent evidence against accused No. 1 Moti Lal Mathur to show his complicity in the matter. As earlier held, prosecution CBI Case No. 32/12 34 of 42 cannot base its case only on the ground that documents in the claim file were not complete, as no sanctity of preservation of record has been maintained. In this regard, reference can be made to judgment, dt. 28-5-2013 of the Hon'ble High Court in Anil Maheshwari Vs. CBI (Supra). From the evidence brought on record by the prosecution through various officers/officials of NIC, it is clear that in case of any marine claim, the survey regarding damage to the consignment, tracing the consignment and verification of documents was being done by empanelled surveyors/tracers/verifiers and the officers of the insurance company were relying upon their reports to process and sanction the claim. PW 2 Shri A.K. Seth, during his cross examination on behalf of accused No.1, stated that they had not specifically pointed out in Ex. PW1/A that M.L. Mathur or Y.P. Babbar committed any specific irregularity or dereliction of duty. PW 3 Shri A.K. Tiwari, during his cross examination deposed that the procedure adopted in passing the claim of Vinayak Enterprises appeared to be in routine and they did not find any fault in it. PW 11 Anupam Rai Gupta, who has prepared the claim note, during his cross examination on behalf of accused No.1 Moti Lal Mathur admitted that he had made recommendations which as per the record and as per his understanding of the papers and procedures, he found fit and reasonable. With respect to the claim note, he was not pressurized by anyone. He had prepared these notes in a routine manner during the course of his duties. From the aforesaid, it is considered that the prosecution has not been able to lead evidence to show that accused No.1 Moti Lal Mathur was a party to the conspiracy to cheat NIC.
13.14 The circumstances brought on record indicate that accused No. CBI Case No. 32/12 35 of 42
2 Arvind Kumar Sharma would not have given false report and accused No.4 K.V. Juneja would not have deposited purported recovery amount taken from Vinayak Enterprises, showing the same to have been recovered from the transporters unless they had conspired with accused No. 3 Vijay Dayal to cheat NIC, DO-XIII. Thus, it is clear that accused No. 2 Avrind Kumar Sharma, accused No. 3 Vijay Dayal and accused No. 4 K.V. Juneja conspired to cheat NIC, DO-XIII.
14.1 It has been argued by Sh. R.K. Kohli, counsel for accused No.2 Arvind Kumar Sharma and accused No. 4 K.V. Juneja that tracer's report dt. 10-3-98 Ex. PW4/N was submitted by accused No. 2 Arvind Kumar Sharma, though it has been signed by his Manager. Further, accused No. 4 K.V. Juneja has signed three documents i.e TA/DA Bill dt 10-3-98, placed at page No. 24 of the claim file, Ex. PW2/A of Pooja International as employee thereof, acknowledgement placed at page No. 25 and Bill dt. 29-5-98 of Honey International, Ex. PW4/B, placed at page 30 of the claim file. They have not disowned any of these documents. It is not the case of prosecution that the said accused persons claimed the said documents to be made or executed by some other person or by authority of some other person by whom or by whose authority it was not made. Thus, these are not false documents in terms of Section 464 IPC and, therefore, no forgery has been committed in respect of the said document. He has relied upon Md. Ibrahim & Ors. v/s State of Bihar and Anr. 2010 Cri LJ 2223 in this regard. Ld. P.P. has argued that even though these documents have been made or executed by the accused persons in their own name, since their contents are false, the documents would fall within the category of forged documents. He has referred to CBI Case No. 32/12 36 of 42 illustration (h) to section 464 IPC in support of his contention. It may be mentioned that the above illustration is not applicable to the facts of this case. 14.2 In this regard, it may be noted that sections 467 & 468 are aggravated forms of the offence of forgery. Section 463 IPC defines 'forgery' as "463. Forgery. - Whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
Further Section 464 IPC defines 'false document' as "464. Making a false document. - A person is said to make a false document or false electronic record -
First - Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a documents or part of the document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly - who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic CBI Case No. 32/12 37 of 42 signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration." (emphasis supplied). 14.3 A person can be said to have made a 'false document' if (i) he made or executed a document claiming to be someone else or authorized by someone else or (ii) he altered or tampered a document; or (iii) he obtained a document practicing deception, or from a person not in control of his senses. There is a difference between execution or making of a document itself being false and the contents of a document being false. Whereas the former is covered u/s 464 IPC, the latter would not amount to f' alse document' as defined in section 464 of IPC.
14.4 In Md. Ibrahim & Ors. v/s State of Bihar and Anr. 2010 Cri LJ 2223, the Hon'ble Supreme Court held, "The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.
10. An analysis of section 464 of Penal Code shows that it divides false documents into three categories :
10.1 The first is where a person dishonestly or fraudulently makes or executes a documents with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
10.2 The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
CBI Case No. 32/12 38 of 42 10.3 The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
11. In short, a person is said to have made a 'false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
12. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of 'false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his own even though he knows that it is not his property. But to fall under first category of 'false documents' it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else.
Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section CBI Case No. 32/12 39 of 42 471 of the Code are attracted".
14.5 In the present case, the prosecution has not been able to prove as to who has signed the tracer's report, Ex. PW4/N, though the same was admittedly submitted by accused No.2 Arvind Kumar Sharma. It has not been proved that the said document was made by accused No.2 Arvind Kumar Sharma claiming himself to be somebody else or that he was authorized by somebody else. Similarly, there is no document made by accused No.4 K.V. Juneja, claiming himself to be somebody else or that he was authorized by somebody else. Therefore, even if the contents of such documents are false, the documents themselves are not f' alse documents' as defined in Section 464 of IPC. Since these are not f' alse documents' as defined in section 464 IPC, there is no forgery and thus, section 468 IPC is not attracted. Therefore, no case is made out against accused no.2 Arvind Kumar Sharma and accused No. 4 K.V. Juneja under sections 468 of the 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. 2 Arvind Kumar Sharma, accused No. 3 Vijay Dayal and accused No.4 K.V. Juneja entered into an agreement to cheat NIC, DO XIII, New Delhi by fraudulently inducing it to sanction insurance claim in the name of Vinayak Enterprises, New Delhi under the proprietorship of accused No. 3 Vijay Dayal to the extent of Rs 2,34,652/- by using as genuine forged documents, and
(b) Accused No.3 Vijay Dayal deceived and dishonestly induced NIC, DO XIII, New Delhi to sanction insurance claim of Rs 2,34,652/- in favour of CBI Case No. 32/12 40 of 42 Vinayak Enterprises on the basis of false/forged documents i.e. invoice, GR and tracer's report and received the cheque of claim amount which was credited in the account No. 61154 of Vinayak Enterprises of which he was the proprietor and he also used the forged documents as genuine knowing or having reason to believe the same to be forged.
15.2 However, the prosecution has not been able to prove beyond a reasonable doubt that:-
(a) Accused No.1 Moti Lal Mathur entered into a criminal conspiracy with co-accused persons to cheat NIC or that he committed any criminal misconduct as defined in section 13 (1) (d) of PC Act.
(b) Accused No. 2 Arvind Kumar Sharma committed any forgery.
(c ) Accused No. 4 K.V. Juneja committed any forgery.
15.3 The points at para 9 above are decided accordingly. 15.4 In view of the aforesaid, it is held that:-
(a) Accused No. 2 Arvind Kumar Sharma, accused No.3 Vijay Dayal and accused No.4 K.V. Juneja are guilty for commission of offence punishable under section 120B r/w section 420/471 IPC and they are convicted accordingly.
(b) Accused No. 3 Vijay Dayal is also guilty for commission of offences punishable (i) under section 420 IPC and (ii) under section 471 r/w section 468 IPC, and he is convicted accordingly.
(c ) Accused No. 1 Moti Lal Mathur is acquitted of the charges (i) under section 120B r/w sections 420, 467,468, 471 IPC and section 13 (2) r/w section 13 (1) (d) of PC Act, 1988, and (ii) under section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988.
CBI Case No. 32/12 41 of 42 (d) Accused No. 2 Arvind Kumar Sharma is acquitted of the charge under section 468 IPC. (e) Accused No. 4 K.V. Juneja 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)
CBI Case No. 32/12 42 of 42