Delhi District Court
State Through Central Bureau Of ... vs . on 27 February, 2017
Case No.532175/2016
IN THE COURT OF SPECIAL JUDGE, CBI (P C Act)-06,
CENTRAL DISTRICT, TIS HAZARI, DELHI.
Case No.532175/2016
CC No.: 15/12
RC No.3(A)/94/CBI/ACU-VII/ND
State through Central Bureau of Investigation.
Vs.
1. Sh. Mukhtiar Singh (since deceased)
S/o Sh. Ghishan Singh,
R/o 23, A/7 Sector 16, Rohini, then DGFT Panipat ....Accused No.1
2. Sh. Om Prakash Seth (since deceased)
1st Floor, Room No.107 Wardman House, Gali No.7/28,
Ansari Road, New Delhi. ....Accused No.2
3. Sh.Mohd. Faheem
R/o F-13-0, Quazidi Khinni Gali, Peer Qaib,
Moradabad, UP ....Accused No.3
4. Sh. Wahajuddin (since deceased)
Mehal Sarai, Lal Bagh Chowk, Jigar Road
Moradabad, UP ....Accused No.4
5. Ms. Simi Khan,
F-215, Mugalpura II
Moradabad, UP ....Accused No.5
6. Sh. Sarfraz Khan,(since deceased)
F-21/5, Mugalpura II
Moradabad, UP ....Accused No.6
7. Sh. Mohd. Afroz Khan,
157/E-7, Jigar Road, Dehria,
Moradabad, UP ....Accused No.7
8. Sh. Shakeer, (since deceased)
H. No.34/2, Gali Kalu Baig, Mugalpura II
Moradabad, UP ....Accused No.8
9. Sh. Mohd. Furqan Khan(since deceased)
H. No.23/D, Farashan Street, Lahagarh,
Moradabad, UP ....Accused No.9
10. Sh. Mohd. Aslam
inside Fhatak Makabra,
Moradabad, UP ....Accused No.10
11. Sh. Muzafar Hussain, (since deceased)
Faiz Ganj, South-6
Moradabad, UP ....Accused No.11
12. Sh.Fafiq Ahmed,
Peerzada Street
Moradabad, UP ....Accused No.12
Date of Institution : 15th December 1999
Arguments concluded : 16th February 2017
Judgment Delivered : 27th February 2017
CBI Vs. Mukhtiar Singh & ors. Page 1 of 56
Case No.532175/2016
JUDGMENT
1. Twelve accused persons were sent up for trial for commission of the offences punishable under Section 120B r/w 420, 420 r/w 511, 467, 468, 471 IPC & Section 13(2) r/w Section 13 (1) (d) of the Prevention of Corruption Act (hereinafter referred to as 'PC Act'), in this case pursuant to registration of a regular case RC No. 3(A)/94/CBI/Anti Corruption Unit (ACU)-VII/New Delhi, on 5th October 1994. Mukhtiar Singh (A-1), the sole public servant in this case was posted in 1993 as Dy. Director General, Foreign Trade and was authorized to issue duty free advance import licenses under duty exemption scheme of Government of India, entered into a conspiracy to cheat Government of India and by abusing his official position granted advance import licenses to the fictitious firm of accused persons (A-2 to A-12) to import goods and enjoy the scheme of exemption for paying duty on import of goods. Other accused sent up for trial were Om Prakash Seth (A-2), Mohd. Faheem (A-3), Wahajuddin (A-4), Ms. Simmi Khan (A-5), Sh. Sarfraz Khan (A-6), Mohd. Afroz Khan (A-7), Shakeer (A-8), Mohd. Furqan Khan (A-9), Mohd.Aslam (A-10), Muzafar Hussain (A-11), Rafiz Ahmed (A-12). Accused persons namely A-1, A-2, A-4, A-8 & A-9 expired before framing of charge, whereas A-6 & A-11 expired during the course of trial and proceedings against them stands abated. A-12 was declared proclaimed offender and A-5 failed to appear, proclamation proceedings against her were issued and her case was separated. Seven accused including Mukhtiar Singh (A1) who were charge sheeted, expired after filing of the charge sheet. Mukhtiar Singh (A-1), sole public servant expired on 1 st March 1999. Om Prakash Sethi (A- CBI Vs. Mukhtiar Singh & ors. Page 2 of 56 Case No.532175/2016
2) expired on 11th February 2001. Wahajuddin (A-4) expired on 20 th February 2002. Sarfaraz Khan (A-6) expired on 16th April, 2014. Shakoor (A-8) expired on 25th January, 2001. Furkan Khan (A-9) expired on 30th December, 2001. Muzzaffar Hussain (A-11) expired on 20th January, 2012. Proceedings against these accused stands abated and at present, only three accused persons namely Mohd. Fahim (A-3), Mohd. Afroz Khan (A-7) and Mohd. Aslam (A-10) who have faced trial, are before this court.
2. On conclusion of investigation, accused persons were charge sheeted on 8th March, 1997. Cognizance was taken by the court on 15th July 1997. Charges were framed against the accused persons on 30 th April, 2008 under Section 120B r/w 420, 420 r/w 511, 468, 471 IPC and Section 13(2) r/w Section 13 (1) (d) of the P.C Act, 420 r/w Section 120B IPC, 468 r/w 120B, 471 r/w 120B IPC and substantive offences thereunder. Accused pleaded not guilty and claimed trial.
3. Charges framed against accused were as under:-
• Firstly, Mohd. Fahim (A-3), Mohd. Afroz Khan (A-7) & Mohd. Aslam (A-10), Muzaffar Hussain (A-11), in conspiracy with Mukhtiar Singh (A-1) (since deceased) along with Om Prakash Seth (A-2) (since deceased), Wahazuddin (A-4) (since deceased), Simmi Khan (A-5) (since PO), Shakeer (A-8) (since deceased), Mohd. Furqan (since deceased) (A-9) and Rafiq Ahmad (since deceased) (A-12) in the year 1993 at Delhi, Panipat, Muzaffar Nagar, Saharanpur, Moradabad and other places entered into criminal conspiracy criminal conspiracy by having agreed to do or cause to be done an illegal act, with the object to cheat the Government of India CBI Vs. Mukhtiar Singh & ors. Page 3 of 56 Case No.532175/2016 by processing applications for issuance of several quantity based Duty Free Advance Licenses to nine fictitious/non-existent firms namely M/s Iqbal Impex Internationa, Saharanpur, Asfa Crats, Muzaffar Nagar, Jan Bhai Valaji & Co., Saharanpur, International Linkers, Saharajpur, Union Brass Industries, Saharanpur, Novelty Trader, Muzaffar Nagar, Artwares Enterprises, Saharanpur, Mahavish Exports, Muzaffaranagar, Export Collection Enterprises, Muzaffarangar, on the basis of false and fabricated bogus documents, in course of which act forged documents were used and accused Mukhtiar Singh (since deceased) abused his office as public servant by corrupt or illegal means to secure unlawful pecuniary advantage and thereby committed offences punishable u/s 120-B r/w Section 420, 468, 471 PC & Sec. 13 (2) r/w Section 13 (1) (d) of P.C. Act.
• Secondly, in pursuance of criminal conspiracy, all the accused during the aforesaid period and places cheated the Government of India through aforesaid nine Advance License applications recommended by co-accused for issuance of license dishonestly to the aforesaid fictitious non-existent firms supported by false and fabricated documents, verification certificates about the existence thereof resulting in custom duty being evaded and loss caused to Government of India to the tune of Rs.2,85,52,500/- and thereby committed offence punishable us/ 420 r/w 120B IPC.
• Thirdly, in pursuance of criminal conspiracy all accused during aforesaid period and place forged supporting documents including C.A. Certificate in the office of DDGFT, Panipat pertaining to the issuance of fictitious and CBI Vs. Mukhtiar Singh & ors. Page 4 of 56 Case No.532175/2016 non-existent above mentioned firms, in order to use the same for cheating the Government of India for evading aforesaid custom duty on import and thereby committed offence punishable u/s 468 r/w Section 120-B IPC.
• Fourthly, in pursuance of the criminal conspiracy, all the accused dishonestly used as genuine aforesaid forged certificates which they all knew at the time of its use to be forged documents and thereby committed offence punishable u/s 471 r/w Section 120-B IPC.
Prosecution Evidence
4. To establish charges against the accused persons, prosecution examined 42 witnesses. Brief outline of the witnesses examined by the prosecution is as under:-
PW-1, Ram Pal Sharma, Businessman dealing in spare parts in the name and style of M/s Sharma Automobiles at Shop No. 14, Ratan Market, Suzru Chungi, Meerut Road, Muzaffar Nagar, UP.
PW-2, Rati Ram, Assistant Director, DGFT, Muradabad, UP identified his signature on letter dated 28th August 1995 (Ex.PW-2/1) vide which nine files of the firms i.e. M/s Iqbal Impex International, Saharanpur, M/s Jan Bhai Valaji & Co., Saharanpur, M/s Artwares Enterprises, Saharanpur, M/s International Linkers, Saharanpur, M/s Union Brass Industries, Saharanpur, M/s Mahavish Exports, Muzaffarnagar, M/s Export Collection Enterprises, Muzaffarnagar, M/s Novelty Trader, Muzaffarnagar & M/s Asfa Crafts, Muzaffarnagar, UP pertaining to issuance of IEC numbers were handed over to Sh. V.P. Sharma, IO/Inspector CBI. He identified documents (Ex.PW- 2/2 to 10).
PW-3, Sardar Khan, owner of shop No.7, Idgah Market, Shamli Stand, Muzaffar Nagar, UP in his deposition stated that he had never let out his shop to anyone since 1973 and had never heard or seen the firm under the name and style M/s Ashfaq Crafts. Defence counsel choose not to cross examine this witness.CBI Vs. Mukhtiar Singh & ors. Page 5 of 56 Case No.532175/2016
PW-4, Charanjit Singh owner of Shop No. 5 & 6 Idgah Market, Shamli Stand, Muzaffar Nagar, UP, stated that there was no firm in the name and style M/s.Ashfaq Crafts. Defence counsel chose not to cross examine this witness. PW-5, V.K. Vohra, Assistant Secretary of the Institute of Chartered Accountant of India, 16/77, Civil Lines Kanpur, handed over information regarding membership number of few chartered account firms to IO/SP V.P.Sharma. PW-6, Shamshad Hussain, resident of at Chori Gali, Ladha Wala, Muzzaffar nagar, UP in his deposition, stated that he had never heard or seen the firm M/s Export Collection Enterprises in Chori Gali Laddha Wala. PW-6 stated that there were only 20 to 25 house in Chori Gali.
PW-7, R.N. Sharma, resident of at 9/185, Harnath Pura Street, Saharanpur. stated that M/s International Trade Linkers never existed at its address. PW-8, Pawan Kumar Jain, was engaged in the business of printing and stationary stated that there was no locality by the name of Jain Bazar, in Muzaffar Nagar and that he had never heard or saw M/s Novelty Traders dealing with brass and metals in his locality.
PW-9, Sri Chand Jain, used to run a flour Mill at shop No.553, Jain Nagar. He had never heard or saw M/s Novelty Traders in Jain Nagar and there was no locality in the name of Jain Bazar to his knowledge in Muzaffar Nagar, UP. PW-10 Arjun Gajadhar Prasad Sharma, Licensing Assistant at Deputy Director General Foreign Trade Panipat processed files of advance licenses as per instructions of Deputy Director General. He prepared check list of the documents and handed over files to the DGFT for issuing the license PW-11, Rakesh Kumar Aggarwal, chartered accountant testified that Mohd. Faheem (A-3) stated to be Accountant of M/s Export Collection Enterprises had come to him with books of accounts for three years, balance sheet, sales invoices and cash book ledgers.
PW-12, K.S. Yadav, LDC, in the office of Deputy Director General Foreign Trade Panipat processed file of M/s Novelty Traders for licensing and identified the same as (Ex.PW-12/1 to Ex.PW-12/15 & Mark PW-12/A-1 to A-19).
PW-13, Mohd Ahsaan, stated that in the year 1993, there was no firm in the name of M/s Union Brass Industries at the given address and there was a small board in the name and style of Union Brass Industries in one of the shops but said shop remained closed.
CBI Vs. Mukhtiar Singh & ors. Page 6 of 56 Case No.532175/2016 PW-14, Amitabh Kumar, Assistant Collector,stated that his duties were to supervise work of assessment of custom duty and appraisal as an Assistant Collector. PW-15, J.K. Gulati, Superintendent was entrusted with the work of examination of imported goods, cargo and general administration.
PW-16, Sh. Randhir Singh, Superintendent, Customs, corroborated bill of entry no. 108140 and other documents (Ex.PW-14/A, A1 & B1) pertaining to M/s Export Collection Enterprises.
PW-17, R.K. Tyagi, Appraiser at International Custom Depot (ICD),stated that vide bill of entry no. 109882, 19.97 metric ton brass scrap was imported by M/s Export Collection Enterprises and that he had dealt with the bill of entry file (Ex.PW-17/D) pertaining to the said import and had assessed the bill of entry. PW-18, Sheikh Riazuddin, Assistant Manager, Indiradock handed documents relating to import and export during 1993 and placed on record bill of entry (Ex.PW- 18/A to C), Gate Passes (Ex.PW-18/B1 to B4), Shed delivery order (Ex.PW-18/D) with respect to bill of entry (Ex.PW-18/A).
PW-19, Rakesh Kumar Gupta, Chartered Accountant having registration no. 70906/1981, Kanpur in his deposition, stated that certificate dated 2 nd July 1993 purported to be issued by A.S & Co. Chartered Accountants, Khat Ghar, Pachpera, Muradabad, UP vide Mark PW-19/X & Y was not issued by him to the firm M/s Ashfa Craft (A-3).
PW-20, N.P. Topno, Assistant General Manager, deposed that file (D-1) pertaining to M/s Ashfa Crafts (A-3), Muradabad, UP was allotted code no. KA000478 (Ex.PW- 20/A) on 13th December 1978 and file (D-3) pertaining to M/s Export Collection (A-
7), Muzaffar Nagar, who was allotted code no. KE000238 (Ex.PW-20/B) on 26 th August 1989.
PW-21, Subhash K Pawar, Custom House Agent No.BC/T-84/7 working in Sri Sainath Shipping Corporation, identified his signatures on documents (Ex.PW-21/A to F), Ex.PW-18/A), (Ex.PW-21/E1 to E9) & (Ex.PW-21/F1 to F6) and stated that he received materials on behalf of M/s Mahavish Exports vide bill of entry no. 1867 dated 8th September 1993 (Ex.PW-21/A).
PW-22, Mohd. Usman Khan, Proprietor of M/s U.P. Foundry Works at Ali Mohalla, Saharanpur, UP. deposed that he was resident of Mahendi Sarai adjacent to Ali Mohalla Saharanpur and knew people residing or working there and that M/s Jassi CBI Vs. Mukhtiar Singh & ors. Page 7 of 56 Case No.532175/2016 Bhai Balaji & Co. never existed nor worked in Ali Mohalla or its adjacent area. PW-23, Anil Kumar Sharma, Manager, Container Freight Station, Jawaharlal Nehru Port, Navi Mumbai identified documents (Ex.PW-23/A to D) and stated that at the back of (Ex.PW-23/C) at point X-1, there was an endorsement regarding receipt of goods in loaded container by the employee of Custom House Agents (CHA) on behalf of importers pertaining to M/s Ashfa Craft vide bill of entry (Ex.PW-23/A). PW-24, Sandeep Prakash, Assistant Commissioner of Customs, Appraising Group- VII, Office of Commissioner of Customs, New Custom House, Bombay. identified his signature on letter dated 21 st December 1995 (Ex.PW-24/1) vide which he replied to IO V.P. Sharma, of CBI in response to letter dated 4 th December 1995. PW-25, K.K.G. Nair, Appraising Officer, Department of Customs, Jawahar Lal Nehru Port, Customs House, Uran, New Bombay testified that in the Dock, another Appraising Officer used to physically verify imported goods. PW-26, Anil Verma, Director M/s Sain Dass Kishan Chand Mehra Clearing & Forwarding Pvt. Ltd., Mumbai (CHA No. 11/0121).identified documents (Ex.PW-26/1 to 6) pertaining to M/s Ashfa Crafts (A-3). He stated that M/s Ashfa Crafts (A-3) received the imported items/ cargo and M/s Sain Dass Kishan Chand Mehra Clearing & Forwarding Pvt. Ltd. was his custom house agent (CHA) vide (Ex.PW-26/6). PW-27,Manjeet Rai Ralli, Staff Officer, Bank of India, Asaf Ali Road Branch, New Delhi, identified his signatures on seizure memo dated 8 th December 1995 (D-87) (Ex.PW-27/1) vide which he handed over documents mentioned therein from bank record to IO. He corroborated documents (Ex.PW-14/H) vide (Ex.PW-27/2). PW-28, Vishnu Kumar Sureka, was dropped by the Prosecutor on the ground that statement u/s 161 Cr.P.C. was not recorded during investigation nor any documents related to him is cited.
PW-29, Ujjal Singh Bhatia, Joint Secretary and Chief Vigilance Officer, Ministry of Commerce and Industry, Government of India, New Delhi, identified his signatures on Sanction Order dated 16th May 1997 (Ex.PW-29/1) vide which Sanction was accorded for prosecution of Mukhtiar Singh (A-1)(deceased) on behalf of Central Government in the capacity of Chief Vigilance Officer.
PW-30, Mukesh Kumar, P. Rama Chandra, Senior Manager, Indian Overseas Bank, Darya Ganj Branch, Delhi, Incharge of Foreign Exchange and Advances Section of the Bank, stated about the role of Simmi Khan (A-5) (proprietor of M/s Mahavish Exports). PW-30 identified documents (Ex.PW-30/1 to 35) pertaining to M/s CBI Vs. Mukhtiar Singh & ors. Page 8 of 56 Case No.532175/2016 Mahavish Exports showing the banking transactions in account no. 4089 of M/s Mahavish Exports.
PW-31, P.S. Gupta, Executive Officer, Municipal Board, Khatauli, District Muzaffar Nagar, UP., identified letter dated 14 th February 1996 (Ex.PW-31/1) sent by him to SP, CBI, New Delhi with reference to letter no. 216/3/3/94-ACU (VII) wherein he informed that no firm in the name of M/s Novelty Traders was registered with Municipal Board, Khatauli at that time.
PW-32, Mohd. Anis, Junior Investigator cum Compilor in District Industries Center, Muradabad. identified his signatures on seizure memo (Ex.PW-32/A) vide which four small scale industries registration files pertaining to M/s Export Collection Enterprises (A-7), M/s International Trade Linkers, M/s Artwares Enterprises and M/s Union Brass Industries were seized.
PW-33, Naresh Kumar, Junior Investigator in District Industries Center at Moradabad identified his signatures on seizure memo (Ex.PW-33/A) vide which files (Ex.PW-33/B to D) were seized by CBI. File (Ex.PW-33/C) pertains to M/s Iqbal Impex International pertaining to Mohd. Aslam (A-10).
PW-34,Rajvir Singh, Assistant Tax Superintendent, Nagar Palika Parishad, Muzaffar Nagar, UP. identified his signatures on letter dated 15 th February 1996 (Ex.PW-34/A) written by him to SP, CBI in response to letter dated 8 th February 1996 (Ex.PW-34/B) vide which he informed CBI that the firms M/s Ashfa Crafts (A-3), M/s Export Collection Enterprises (A-7) and M/s Mahavish Exports were neither registered with Nagar Palika nor were they paying any tax to Nagar Palika.
PW-35, J.S. Rautela, Inspector, CBI, IO. testified that investigation of present case was handed over to him on 21 st May 1997 from Sh. A.K. Srivastava, Dy SP, who conducted investigation in this case. During investigation, he seized documents vide memo (Ex.PW-35/B).
PW-36, Ramji Lal, UDC, Dy DGFT, Panipat testified that purpose of issuing advance license was to enable the party to import goods of the amount specified in the advance license.
PW-37, T.V. Rama Subramanian, Office Incharge, Sri Radha Krishna Shipping Pvt. Ltd. testified that his duties related to custom clearance. PW-38, Ghaninder Pal Singh Batra, CA, M/s G.S. Batra & Company testified CA certificates (Mark PW-12/A-14, Mark PW-38/A to C) issued to M/s Novelty Traders and M/s Artwares Enterprises, M/s Union Brass Industries, M/s International Trade CBI Vs. Mukhtiar Singh & ors. Page 9 of 56 Case No.532175/2016 Linkers.PW-38, Ghaninder Pal Singh Batra, CA, M/s G.S. Batra & Company were not been issued by him.
PW-39, Ved Prakash Sharma, Inspector, CBI, IO of the case had taken up investigation of this case since 5 th October 1994, after FIR was registered. He collected documents Marked PW-39/1 to 17, (Ex.PW-37/DA), PW-39/18 to 31, Ex.PW- 39/1 to 11, Ex.PW-33/A, Ex.PW-26/2, Ex.PW-21/B, Ex.PW-34/A & B & Ex.PW-31/1. PW-40, Hayat Singh, Office Peon, M/s Shri Radha Krishna Shipping Pvt. Ltd. Mahipalpur, New Delhi deposed that there was no record available in his office in relation to Job No. 273/93-94 dated 19th December 1993 in his office. PW-41, Vimal Negi W/o Late Sh. V.S. Negi, Chairman cum M.D M/s International Cargo Handling Services Pvt. Ltd., identified signatures of her husband Late V.S.Nagi on (Ex.PW-14/A, F, E, E-1, D, D-1, G, H & J).
PW-42, Ezar-Ul-Haq, stated that he had not knowledge about any firm in the name M/s Mahavish Export, Rattan Market, Sujuru, Chungi Bazar, Muzaffarnagar nor he had ever seen any sign board of the same.
Statement of Accused
5. In his statement u/s 313 Cr.P.C, Mohd. Fahim (A-3) admitted that he was proprietor of M/s Ashfa Crafts and that documents (pages 2 to 8 in Ex.PW-2/4) were filed by M/s Ashfa Crafts. A-3 admitted that Ex.PW-20/A was copy of application form for issuance/allotment of Code No. on which Import/Export Code No. in favour of firm M/s Ashfa Crafts, the Exporter is Mohd. Fahim (A-3), Qasditola, Khinni Gali, Muradabad UP issued by the Reserve Bank of India bearing No.KA000478 on 13.12.1978. A-3 admitted that vide application dated 08.07.1993 i.e. Ex.PW10/28 he being Proprietor of M/s Ashfa Crafts with address S/No.7,Idgah Road, Mujafar Nagar, UP, India, applied to the Deputy Director General of Foreign Trade, Office of the DGFT at L416 Model Town, Panipat for issuance of advance Import License under duty exemption scheme, quantity base of CIF Value Rs.66,00,000/-AM-94 along with documents (Marked PW10/D1 CBI Vs. Mukhtiar Singh & ors. Page 10 of 56 Case No.532175/2016 to PW10/D20), but thereafter stated that the application Ex.PW10/28 was given by him to the Deputy Director General of Foreign Trade, Office of the DGFT at L416 Model Town, Panipat for issuance of advance Import License under duty exemption scheme, quantity base of CIF Value Rs.66,00,000/-AM-94, as Proprietor of M/s Ashfa Crafts with address S/No.7,Eidgah Road, Mujafar Nagar, UP, India. On asking, Mohd. Fahim (A-3) stated that he could not recall, as to what documents he had filed along with the application. He admitted his signatures (at points A on pages 19 and 20 annexed to Ex.PW20/A) but stated that his signatures thereon were wrongly obtained. Mohd. Fahim (A-3) admitted his signatures on documents (placed at page no.28 to 31) and stated that he had signed on different papers and given the same to Mr. Om Parkash Seth(A-2) for filing application for issuance of Advance Import license. Mohd.Fahim (A-3) admitted that he as proprietor of M/s Ashfa Crafts submitted letter dated 16.08.1993 i.e. Ex.PW-10/32, along with documents from pages 37 to 43 to the DGFT Panipat and LUT against advance license under the duty exemption scheme.
6. In his statement u/s 313 Cr.P.C, Mohd Faheem (A-3) admitted that the license and DEEC Book was handed over to the representative of M/s Ashfa Crafts, S No. 7 Eidgah Road, Mujjaffar Nagar, vide Ex.PW10/33 and license was received by him via post and that DEEC book was also received by him via post but separate from the license. Mohd. Fahim (A-3), stated that before the letter of undertaking (LUT) was submitted by him, he had received the advance license along with the DEEC Book at Mujjffar Nagar via post. He stated that license and the DEEC book were received by him by hand for Ashfa Crafts with CBI Vs. Mukhtiar Singh & ors. Page 11 of 56 Case No.532175/2016 his signatures at point C on Ex.PW10/34 at the office of the DGFT , Panipat after acceptance of the LUT. Mohd. Fahim (A-3) stated that he had received two advance licenses and two DEEC books Once before the acceptance of the LUT and once after acceptance of the LUT. A-3 stated that as per rules there is neither requirement of a firm being registered with the Municipal Corporation nor was there any requirement of making payment of any tax to the municipal corporation for issuance of import license from 1977 onwards as earlier firm M/s Ashfa Crafts was at Mujafar Nagar and the letter dated 08.02.96 i.e. (Ex.PW34/B) and the letter dated 15.02.1996 (Ex.PW34/A) were both of the year of 1996, when A-3 had closed the firm out of fear and had run away.
7. Mohd Faheem (A-3) stated that within the shop and outside the shop, name boards of M/s Ashfa Crafts were there at shop no. 7 Edigarh Market, Shamli Stand , Mujfar Nagar, UP, which were painted by some one and his articles had also been removed from the shop. Mohd. Fahim (A-3) admitted that Mr. Charanjeet Singh (PW-4) was running shop no. 5 & 6 Idgah Market, Mujfar Nagar, UP, 1972 to 1995 under the name of Kohli Auto Stores, but again stated that he did not know whether the name of that shopkeeper was Charanjeet Singh but there was a paint and repair shop. Mohd. Fahim (A-3), denied that original bill of entry no. 109232 dated 01.09.1993 i.e. Ex.PW14/H of M/s Ashfa Crafts, 7 Eidgah Road, Mujafar Nagar was presented by International Cargo Handling Services, vide which Ashfa Crafts had imported Brass Honey Scrap with net weight of 31.76 metric tones with assessable value of Rs. 16,23,774/- against import license no. P/K/L/N/1523675 dated 15.05.1993 and stated that though the applications and documents for the advance license bore his CBI Vs. Mukhtiar Singh & ors. Page 12 of 56 Case No.532175/2016 signatures, but he had not submitted application. A-3 stated that he was not aware of contents of Ex.PW14/H. Mohd. Fahim (A-3), denied that original bill of entry no. 109766 i.e. Ex.PW14/G of M/s Ashfa Crafts, 7 Eidgarh Road, Mujafar Nagar was presented by International Cargo Handling Services, vide which Ashfa Crafts had imported Brass Honey Scrap with net weight of 19.720 metric tonnes with assessable value of Rs. 817358/- against import license no. 1523675 dated 15.05.1993, or vide original bill of entry no. 154394 i.e. Ex.PW14/J, vide which M/s Ashfa Crafts imported Brass Honey Scrap with net weight of 42.720 metric tonnes with assessable value of Rs. 1560390.73 against import license no. 1523675 dated 5.05.1993 and no such articles as mentioned in Ex.PW14/J were imported by M/s Ashfa Crafts nor was any payment made by M/s Ashfa Crafts.
8. In his statement, Mohd. Faheem (A-3) denied that original bill of entry no. 110072 i.e. Ex.PW14/K of M/s Ashfa Crafts. No such articles as mentioned in Ex.PW-14/H, Ex.PW-14/J, Ex.PW-14/G, Ex.PW14/K were imported by M/s Ashfa Crafts nor was any payment made by M/s Ashfa Crafts and that he learnt of the import as mentioned in Ex.PW-14/H, Ex.PW-14/J, Ex.PW-14/G, Ex.PW14/K subsequently from Mr. Om Prakash Seth. Mohd. Fahim (A-3) admitted that he had signed Ex.PW26/4, but he stated that he had signed on a blank format of a letter of authority and did not issue any letter of authority to M/s S.K.Mehra C & F Pvt. Ltd. in relation to bill of lading no.43205340 dated 01.11.1993. Mohd. Fahim (A-3) stated that Om Prakash Seth had taken his signatures on the blank format for importing goods on behalf of M/s Ashfa Crafts and he had not made any payment also for any goods in relation to this bill of lading No.43205340 CBI Vs. Mukhtiar Singh & ors. Page 13 of 56 Case No.532175/2016 dated 01.11.1993. Mohd. Fahim (A-3), stated that he had signed on Ex.PW25/1 the DEEC declaration and stated that his signatures were taken on blank letter head of M/s Ashfa Crafts and the declaration was not his declaration. A3 stated that he did not import any cargo of 5.74 Mt. Tonnes Nickel Silver Scrap on behalf of M/s Ashfa Crafts nor did he receive the said goods.
9. Mohd Faheem (A3) further stated that Ex.PW26/6 bears his signatures, but the same were taken on a blank format of a letter of authority and on behalf of M/s Ashfa Crafts to S.K.Mehra Clearing and Forwarding Pvt. Ltd. and that M/s Ashfa Crafts did not received the goods of 20.791 Mt. Tonnes Silver Scrap worth Rs.8,76,333/- nor was it imported by M/s Ashfa Crafts. Mohd. Fahim (A-3), stated that the factory of M/s Ashfa Crafts was at Muradabad and office was at Muzzaffarnagar and all this was mentioned in the application of Ashfa Craft and that the office of Ashfa Craft at Muzzafarnagar and the factory address of Ashfa Craft at Muradabad had both been verified by the post office. A-3 admitted that Muradabad was not under the jurisdiction of the office of the Deputy Director (General) Foreign Trade Panipat and that exports could be made from the same export import code number from any place in India. Mohd. Fahim (A-3) stated that he had only opened an account with the Bank of India, Ansari Road Branch, New Delhi, but never deposited any money in the same and that Om Prakash Seth had got a cheque book issued and had taken his signatures on blank cheques and for this reason he had not deposited any money in that account. A- 3 denied that he in conspiracy with A-1, who by abusing his position as a public servant for issuance of duty free advanced import licenses at fictitious/non- existent addresses to M/s Ashfa Crafts 5-7 Eidgah Road, Muzzafarnagar, U.P. for CBI Vs. Mukhtiar Singh & ors. Page 14 of 56 Case No.532175/2016 a total CIF value of Rs. 66,00,000/- to M/s Ashfa Crafts with intent to cheat the Government of India by evading customs duty and stated that a false FIR has been registered against him. Mohd. Fahim (A-3), pleaded his innocence and stated that Mr. Om Prakash Seth against whom he got the FIR registered prior to the registration of FIR in this case against him and he had not placed any order to them for importing any goods on behalf of Ashfa Crafts of which he was the proprietor and had only informed Mr. Om Prakash Seth that if any goods were to be imported he would inform him and they would have to come to the Muradabad address. A-3 stated that both the address of Ashfa Crafts at Muradabad and at Muzzafarnagar were correct and he had intimated all Government authorities of his addresses and the addresses of Ashfa Crafts at Muradabad and Muzzafarnagar were not fictitious. He stated that M/s Ashfa Crafts and he had not evaded any customs duty at all and that CBI seized all the 19 files of Ashfa Crafts from Muradabad and no proceedings were conducted in the FIR that was got registered by him against Om Prakash Seth. Thereafter, there was quarrel between me and Mr. Om Prakash Seth who threatened to get him to be falsely implicated.
10. In his Statement u/s 313 Cr.P.C, Mohd. Afroz Khan (A-7) stated that he was not the proprietor of any firm nor was he the proprietor of Export collection Enterprises. A7 stated that however, he had applied for a loan in the name of M/s Export Collection Enterprises as proprietor thereof and his application for loan of a sum of Rs. One lakh had been given in the name of Export Collection Enterprises by Waahajuddin (A-4), who had given his application to some bank which loan A-7 had applied for his handwork related to Export which was CBI Vs. Mukhtiar Singh & ors. Page 15 of 56 Case No.532175/2016 exported by other exporters and he had done only job work and had not exported anything at any time. A-7 denied his signatures on Ex.PW20/C. A-7 denied that vide application dated 16.09.89 (Ex.PW2/3), he as proprietor of Export Collection (Enterprises) applied for Importer Exporter Code to the Deputy Chief Controller of Imports and Exports, Muradabad and that he had not applied for any Importer Exporter Code to the Deputy Chief Controller of Imports and Exports, Muradabad. He had only applied for a loan as Proprietor of Export Collection Enterprises. A-7 stated that the said application at page 1 of Ex.PW2/3 and other documents placed on the file D-17 i.e. Ex.PW2/3 were not signed by him. A-7 could not say whether the stamps of Export Collection Enterprises on Ex.PW2/3 were the stamps of Export Collection Enterprises for which he had applied for a loan, but stated that Waahajuddin (A-4) had got prepared stamp of M/s Export Collection Enterprises, but could not say whether the stamps visible on Ex.PW2/3 were the same as those that had been got prepared by Waahajuddin or not. A-7 stated that he did not know and had never authorized Mr. Ashok Kumar to collect advance import license no. 1523667 dated 31.3.1993 along with DEEC Book vide letter dated 26.04.1993 nor the document PW10/C23 was signed by him.
11. Mohd Afroz Khan (A-7) denied his signatures on Ex.PW10/20 to the application of Export Collection Enterprises to the Dy. Director General & Foreign Trade, Panipat dated 24.3.1993 bearing the signatures of the proprietor at point C. He expressed his ignorance towards seizure memo dated 4.2.95 i.e Ex.PW32/A, the file containing the SSI Certificate bearing No. A-20/39/5Ex. PW32/B in relation to Export Collection Enterprises, Jigar Road, Dehria, CBI Vs. Mukhtiar Singh & ors. Page 16 of 56 Case No.532175/2016 Moradabad seized by CBI from the District Industries Center, Moradabad. He expressed ignorance of the issuance of any Small Scale Certificate to Export Collection Enterprises or that he had given a letter pad of Export Collection Enterprises to Wahajuddin (A-4) and Rs. 5000/- has stated that he required money for arranging for a loan and had given his five photographs to Wahajuddin for arrangement of the loan and the letter pad of Export Collection Enterprises had also got printed by accused no. 4 Wahaduddin for arranging for a loan. Mohd. Afroz Khan (A-7) admitted that Jigar Road, Dehria, Morodabad, India was the factory address of Export Collection Enterprises as mentioned in Ex. PW10/20. Mohd. Afroz Khan (A-7) denied that he imported mixed brass scrap with net weight 19157 kilograms with assessable value of Rs. 798319 against import licence No. L/1/K/M1523667 dated 31.3.1993, by M/s International Cargo Handling Services (Custom House Agent) through bill of entry in relation to the letter of undertaking D-52 I.e. Ex. PW14/E- i.e. page 12, is bill of entry No. 108373 i.e. Ex. PW14/E with its duplicate copy Ex. PW14/E-1 on behalf of Export Collection Enterprises 16, Chauri Gali, Ladda Wala, Muzaffar Nagar UP or that letter of undertaking (LUT) (Ex.PW14/E) for Rs. 7172320/- was executed by M/s Export Collection Enterprises through its proprietor with Dy. Chief Controller Import and Exports, Moradabad ( licence authority ) and that bill of entry in relation to the letter of undertaking (Ex.PW14/A2), submitted by M/s Export Collection Enterprises through its proprietor for an amount of Rs. 7172730 to the Assistant Collector of Customs, New Delhi, vide bill of entry No. 108140 i.e. Ex. PW14/A with its duplicate copy Ex. PW14/A-1 vide which Export Collection Enterprises 16, Chauri Gali, Ladda Wala, Muzaffar Nagar UP imported CBI Vs. Mukhtiar Singh & ors. Page 17 of 56 Case No.532175/2016 mixed brass scrap with net weight 17742 kilograms with assessable value of Rs. 739352.45 against import licence No. L/1/K/M1523667 dated 31.3.1993, which bill of entry was presented by CHA M/s International Cargo Handling Services. Similarly, (A-7) denied other bill of entry no. 109882 i.e. Ex.PW-14/D in relation to the letter of undertaking D-52 ( Page 5 ) i.e. Ex. PW14/D2, submitted by Export Collection Enterprises through its proprietor for an amount of Rs. 556444 to the Assistant Collector of Customs, New Delhi, vide which M/s Export Collection Enterprises 16, Chauri Gali, Ladda Wala, Muzaffar Nagar UP imported mixed brass scrap with net weight 19970 kilograms with assessable value of Rs. 833624 against import license No. L/1/K/M1523667 dated 31.3.1993 presented by M/s International Cargo Handling Services and other bills.
12. Mohd. Afroz Khan (A-7) reiterated that he had given Rs. 5000/- to Wahajuddin (A-4) for apply for a loan for the firm Export Collection Enterprises, which loan had to be taken from a bank amounting to Rs. one lac, as he wanted to start work as a contractor for colouring work of metal, wood and glass but he did not get the loan but the firm had never worked and was not registered. He asked Wahajuddin to return his Rs. 5000/- as he did not get loan for a year. Wahajuddin kept befooling him and stated that he would get the loan arranged and when after six months, loan was not arranged. He asked Wahajuddin to return Rs. 5000/-, who did not return Rs. 5000/- to him and there was a quarrel between him and Wahajuddin. Thereafter, few people from the locality made them settle the matter and stated that they would get his money back from Wahajuddin, who stated that he would return the money to him in installments as he was unable to return the same immediately. Wahajuddin CBI Vs. Mukhtiar Singh & ors. Page 18 of 56 Case No.532175/2016 returned Rs. 1000/- to him and then absconded from Moradabad. He was unable to trace Wahajuddin and after around 7-8 years ago, he heard that accused Wahajuddin had expired. A-7 stated that he applied for a loan to the bank around 1988-1989 but he did not know to which bank. Wahajuddin had taken his signatures for taking loan and he only know Urdu and could only sign in English. A-7 stated that the evidence led against him that he had imported brass scrap and evaded customs duty was false. He pleaded his innocence and false implication in the case.
13. In his Statement u/s 313 Cr.P.C, Mohd. Aslam (A-10) stated that he was not the proprietor of M/s Iqbal Impex International and had no concern with M/s Iqbal Impex International. He had not applied for change of address of the firm. Mohd. Aslam (A-10) stated that he had not applied to the office of Deputy Chief Controller of Imports & Exports, Vikas Manzil, Dharamshala Road, Moradabad, U.P for issuance of IEC and documents in file Ex.PW-10/2 do not bear his signature. He had not applied for registration of M/s Iqbal International in office of District Industries Centre, Moradabad, U.P. that he had not signed the affidavit and application Ex.PW-33/C. A-10 denied that vide application dated 06.07.1993 he applied to DGFT, Panipat, Haryana for issuance of Advance Import License under Duty Exemption Scheme with false supporting documents. A-10 stated that he had no knowledge about any licence under Duty Exemption Scheme being issued in favour of M/s. Iqbal Impex International and did not know Mukhtiar Singh (A-1) and denied his signatures on the copy of aforesaid Advance Licence alongwith legal undertaking and indemnity bond. CBI Vs. Mukhtiar Singh & ors. Page 19 of 56 Case No.532175/2016
14. Mohd. Aslam (A-10) further stated that No advance Import License issued in his favour, to export Brass Art-ware items having weight 138.75 M and had no concern with the issue of this license and had not submitted application for issuance of Import Advance License, with false or forged certificate purported to be issued by A.S. & Company Chartered Accountant, Katghar, Moradabad, U.P Mark PW-19/2. A-10 denied that he authorized co-accused Wahajuddin as his representative to collect documents on his behalf from various government authorities and also he did not know Wahajuddin. Mohd. Aslam (A-10) stated that FIR was falsely lodged against him and that PW-35 J.S. Rautela had not investigated the matter properly, who filed false charge sheet against him in the court. He pleaded his innocence and false implication. Submission advanced by Ld Prosecutor
15. Sh. Vijay Kumar Dogra, Learned prosecutor submitted that Mohd. Fahim (A-3) represented as Proprietor of M/s Ashfa Craft, Shop No.7, Idgah Road, Muzaffarnagar, UP, having fictitious address and no firm was in existence at given address. He applied and personally collected two advance licenses submitting false information and CA certificate in the office of DGFT, Panipat in favour of his firm- i.e. Advance license NO.2051861 dt. 12.08.1993 & License No.1523675 dated 05.05.1993. It is submitted that Mohd. Fahim (A-3), imported material vide License No.PKLM1523675. Mohd. Afroz Khan (A-7) was proprietor of non-existent firm M/s Export Collection Enterprises at fictitious/non-existent address at 16, Chari Gali, Laddawala, Muzaffar Nagar. He forged and used forged the supporting documents submitted in the office of Dy. Director General Foreign Trade, Panipat pertaining to issuance and clearance of the consignment CBI Vs. Mukhtiar Singh & ors. Page 20 of 56 Case No.532175/2016 and imported the raw material against the licenses issued in the name of this firm. It is submitted that Mohd. Aslam (A-10) showed himself Proprietor of non- existent firm M/s Iqbal Impex International, Saharanpur showing fictitious/non- existent address Habib Market Baza, Lohari Sarai, Saharapur, UP and that he also used forged supporting documents including Chartered Accountant Certificate in the office of Dy. Director General Foreign Trade, Panipat pertaining to issuance of the licenses and accordingly the license No.2051860 dated 12.08.1993 was issued in the name of the firm.
Submissions advanced by ld. Defence counsel.
16. Sh. Bimlesh Kumar, Ld. Counsel appearing for accused Mohd. Fahim (A-3), Mohd. Afroz Khan (A-7) and Mohd. Aslam (A-10), raised objection to the proceeding by this Court on the ground that sole public servant Mukhtiar Singh (A-1) had expired on 1st March, 1999, that is prior to the framing of charges on 30th April, 2008 and therefore, this court was not empowered to frame charges under PC Act against remaining accused who are not public servants and charges are liable to struck off. It is submitted that the FIR was exhibited as PW 35/A but H S Sandhu was not examined as witness for leading secondary evidence, and that there was no FIR against the accused and charge sheet was exhibited, recoveries and Seizure of Documents was highly objectionable and accused persons were never summoned to join the investigation by the IO. It is submitted that there is no investigation disclosing competence of the accused to show that they were able to make such a big fraud causing loss to the Government of India. It is argued that Mohd Faheem (A-3) was an employee of Late Mr. Om Prakash Seth (A-2) who imported materials in the name of M/s CBI Vs. Mukhtiar Singh & ors. Page 21 of 56 Case No.532175/2016 Ashfa Craft by breaching trust of the A-3 and materials was received by forging his signature at Mumbai Port and that there is lack of appropriate cross- examinations of material witnesses on the part of the accused person but it was failure of his counsel in discharge of his duty, hence no adverse inference should be drawn against him. He argued that due to the delayed prosecution, unfair investigation and financial hardships, accused could not take appropriate step to save themselves. It is argued that non- availability of amendment application therein for change of address shows that license file of M/s Ashfa Craft was tempered and there is no handwriting evidence on the record for proving connection of the accused with false and fabricated documents put up during his prosecution which is usually most significant evidence in cheating and forgery cases. Learned counsel argued that Mohd. Aslam (A-10) was not the proprietor of M/s Iqbal Impex International, Moradabad, UP. He had not applied to DDGFT, Panipat for grant of Advance license and had not prepared, signed, filed, produced or showed any documents pertaining to case for M/s Iqbal Impex International and had not appeared before any authority. It is argued that in fact, he is a victim of this case whose identity i.e. name and address were used in all documents pertaining to this case in the name of M/s Iqbal Impex International by forging his signatures by unknown persons and he was not known to any of accused persons of this case or witnesses before lodging of FIR. Sh. Bimlesh Kumar, Ld counsel argued that there is no direct evidence against both the accused persons, to show that they acted in conspiracy with any one. It is submitted that this case is based on circumstantial evidence, wherein prosecution has failed to prove charges against the accused persons because CBI Vs. Mukhtiar Singh & ors. Page 22 of 56 Case No.532175/2016 there is no evidence pointing towards the guilt of the accused or proving the prosecution case beyond reasonable doubt or to show that they prepared, signed, filed, presented or showed any false and fabricated documents to anyone. It is contended that no TIP was held by CBI during investigation to establish involvement of accused persons in the present case. Further, prosecution has failed to examine any eye witnesses against the accused persons is asserted their involvement in the present case by identifying them in the Court. It is argued that no investigation was conducted for disclosing competence of the accused persons to show that they were able to make such a big fraud causing loss to the Government of India. CBI never summoned the accused persons to join the investigation and thus, it can be presumed that prosecution is satisfied with investigation of this case and thus, it is argued that it has been proved that accused persons (A-3), (A-7) & (A-10) have no connection with any of the other accused persons and firms as alleged in Charge sheet.
17. Learned counsel for the accused submitted that as per PW-23 vide advance licence No. PKLM 2051861 dated 12th August 1993 M/s Ashfa Crafts of Mohd. Fahim (A-3) imported materials worth of Rs.10,94,789/-, but the prosecution has failed to prove that material was received by (A-3) and no effort was made by CBI to know receiver of the materials. It is argued that the CBI had not made effort to collect the proofs regarding receipt of documents pertaining to the imports against advance license No.PKLM 1523675 dated 5th May 1993 vide which materials worth of Rs.46,80,989/- was imported and it is also not the case of CBI that M/s Ashfa Crafts of Mohd. Fahim (A-3) was financially CBI Vs. Mukhtiar Singh & ors. Page 23 of 56 Case No.532175/2016 competent to import all these materials and CBI did not investigate, as regards source of money. Learned counsel argued that it can be said that M/s Ashfa Crafts through Mohd. Fahim (A-3) had not imported those material and that no recovery from M/s Ashfa Crafts of Mohd. Fahim (A-3), has been effected. It is argued that CBI did not produce the account books of M/s Ashfa Crafts by collecting them from Income Tax Authorities and Sales Tax Authorities, while documents in possession of CBI and placed on judicial record show that M/s Ashfa Crafts was registered with those authorities and CBI did not try to investigate with respect to M/s A.S. Sharma & Co., CA firm and availability of its certificates in the file of M/s Ashfa Crafts.
18. It is argued that advance licenses pertaining to M/s Ashfa Craft were quantity based advance license wherein before import, advance authorization holders are allowed to import only those items that were 'required for use' in the manufacture of export product which meant that, in terms of quality, grade and technical specifications, imported items must be only those that are 'required for use' in the manufacture of the export products of a particular quality, grade and technical specification. Import documents do not disclose this information to show that if M/s Ashfa Crafts would have imported all these materials in active knowledge of Mohd. Faheem (A-3). It is urged that the imports were made illegally and without knowledge of Mohd. Faheem (A-3), hence he cannot be burdened with obligation of export as he had neither imported the material nor received the material from his alleged agent Anil Verma (PW-26), (Clearing House Agent) or any other agent, as a person may be authorized for doing work as an agent but if he does any act which are illegal CBI Vs. Mukhtiar Singh & ors. Page 24 of 56 Case No.532175/2016 and without consent and knowledge of his principal he cannot attract vicarious liability towards his principal. Learned counsel submitted that in view of submissions and available materials on record, prosecution has failed to show nexus between M/s Export Collection Enterprises and Mohd. Afroz (A-7), M/s Iqbal Impex International and Mohd. Aslam (A-10) and imports made in the name of M/s Ashfa Crafts & Mohd. Fahim (A-3). Hence, Mohd. Fahim (A-3), Mohd. Afroz (A-7) & Mohd. Aslam (A-10) deserve to be acquitted.
19. Points which emerge for determination in this case are as under:-
(i) Whether during 1993 Mukhtiar Singh (A-1) a public servant, Dy Director General Foreign Trade (DGFT) at Panipat, entered into conspiracy with accused persons Om Prakash Seth (A-2), Mohd. Faheem (A-3), Wahajuddin (A-4), Ms. Simmi Khan (A-5), Sh. Sarfraz Khan (A-6), Mohd.
Afroz Khan (A-7), Shakeer (A-8), Mohd. Furqan Khan (A-9), Mohd.Aslam (A-10), Muzafar Hussain (A-11), Rafiz Ahmed (A-12) to cheat Government by processing the applications for issuance of several quantity based Duty Free Advance License by abusing his office as a public servant by corrupt and illegal means to secure unlawful pecuniary advantage to nine fictitious/non-existent firms namely M/s Iqbal Impex International, Saharanpur, M/s Jan Bhai Valaji & Co., Saharanpur, M/s Artwares Enterprises, Saharanpur, M/s International Linkers, Saharanpur, M/s Union Brass Industries, Saharanpur, M/s Mahavish Exports, Muzaffarnagar, M/s Export Collection Enterprises, Muzaffarnagar, M/s Novelty Trader, Muzaffarnagar & M/s Asfa Crafts, Muzaffarnagar?
(ii) Whether the accused persons namely Mohd.Faheem (A-3), Mohd.Afroz (A-7) & Mohd.Aslam (A-10), on the basis of false & fabricated documents and false verification of documents about existence of firms, CA Certificate, obtained import license by using forged documents as genuine and thereby committed offence u/s 468 & 471 IPC?
(iii) Whether the accused persons cheated the Government of India through nine advance license applications recommended by A-1 for CBI Vs. Mukhtiar Singh & ors. Page 25 of 56 Case No.532175/2016 issuance of license dishonestly to the fictitious non-existent firms and evaded the custom duty on import and caused the loss to the Government of India to the tune of Rs.2,85,52,500/- and thereby committed offence u/s 420 IPC?
20. Before adverting to discussion of evidence, relevant legal position may be noted. Cardinal principle always kept in view in our system of administration of justice in a criminal case, is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the production of evidence as may show him to be guilty of the offence with which he is charged. Burden of proving the guilt of the accused is upon the prosecution and unless it relives itself of that burden, the Court cannot record a finding of the guilty of the accused. Court has to test the evidence for its inherent consistency and the inherent probability of the story. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst the witnesses.
21. Section 120-A IPC adumbrated thereon Section 10 of the Indian Evidence Act gives the legislative provisions applicable to conspiracy and its proof. An agreement, concert or league is the crux, of the offence. Conspiracy requires an act i.e. actus reas and an accompanying mental state i.e. mens rea. From the definition of conspiracy in Section 120-A, it is evident that the agreement constitutes the act and the intention to achieve unlawful object constitutes the mental state. All conspirators are liable for the crimes committed in furtherance of the conspiracy besides being liable for committing an offence of conspiracy itself. It is well settled that the offence of conspiracy requires some physical manifestation of agreement. The law does not require CBI Vs. Mukhtiar Singh & ors. Page 26 of 56 Case No.532175/2016 that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. The relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents cannot be allowed to enter the judicial verdict. The court must thus be strictly on its guard.
22. It is well settled that the abuse of position, in order to come within the mischief of Section 13 (1) (d) of the PC Act, must necessarily be dishonest and prosecution must also prove affirmatively that by corrupt or illegal means or by abusing his position, the accused obtained any pecuniary advantage for himself or for some other person. Necessary ingredients of Section 415 IPC which defines cheating are deception and fraudulent or dishonest inducement by the accused and delivery of property as a result of deception or inducement. As per Section 420 IPC, whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security. Offence of cheating requires essential element of deception as well as fraudulent or dishonest inducement by the accused. Guilty intention is gist of offence of cheating. In order to constitute offence punishable under section 420 of the I.P.C., intention to deceive should be in existence at the time when inducement was offered. Dishonestly as defined in Section 24 IPC demands doing of anything with the intention of causing wrongful gain to one person or wrongful CBI Vs. Mukhtiar Singh & ors. Page 27 of 56 Case No.532175/2016 loss to another person. Similarly the word fraudulently as noted in Section 25 IPC states that a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.
Discussion of Evidence
23. At the outset, it may be noted that there is no doubt that trying of any case under the PC Act against a public servant or a non-public servant, is a sine-qua- non for exercising powers under sub-section (3) of Section 4 of PC Act and no charge was framed by the court against (A-1) sole public servant, who had expired before framing of charges but in the present case, indisputably PC offence has been allegedly committed by non-public servants in conspiracy with public servant and Special Judge has to try case against them under PC Act and, therefore, jurisdictional fact exists so far as this case is concerned, so as to exercise jurisdiction by the Special Judge to deal with even offences under Indian Penal Code and non-PC offences.
24. On the touchstone of aforenoted legal position, on appreciation of material on record, it is found that on 8 th July 1993 in order to obtain advance licenses to import, duty free items, Mohd. Faheem (A-3), Proprietor M/s Ashfa Crafts had filed an application (Ex.PW-10/28) in the office of DGFT Panipat wherein A-3 had mentioned his place of business as shop no.7 Eidgah Road, Muzaffar Nagar, UP and mentioned that he was conducting business as Manufacturer Exporter in Brass Art Wares, EPNS Wares, Gifts & Sports Articles, Wooden Snake Stands and other Indian Handicrafts. A-3 falsely mentioned address and particulars to bring his case for grant of advance license within the jurisdiction of Panipat where Mukhtiar Singh (A-1) was posted as Dy DGFT CBI Vs. Mukhtiar Singh & ors. Page 28 of 56 Case No.532175/2016 competent to grant license, who had actually granted license L.U.T (Ex.PW- 10/33) and letter (Ex.PW-10/34) was signed by Mukhtiar Singh (A-1). Mohd. Faheem (A-3) for M/s Ashfa Crafts made an endorsement on Ex.PW-10/33 as regards receipt of license in duplicate and DEEC book. Mohd. Afroz (A-7), Proprietor M/s Export Collection Enterprises had obtained import license no. PKLM1523667 and Mohd. Aslam (A-10), Proprietor M/s Iqbal Impex International obtained import license no. 2015860 from DGFT, Panipat where Mukhtiar Singh (A-1) was posted as Dy DGFT.
25. Defence version that A-3, A-7 & A-10 were not concerned with the establishment of the firms namely as M/s Iqbal Impex International, M/s Jan Bhai Walaji & Co., M/s Novelty Trader, Artwares Enterprises, M/s Mahavish Exports, Export Collection Enterprises has neither been established nor is acceptable. As per deposition of PW-11 Sh. Rakesh Kumar Aggarwal, CA who audited account of M/s Export Collection Enterprises, Mohd. Faheem (A-3) came to him with books of account for three years, balance-sheet, sale invoices and cash book ledger and these documents were sent to him by the proprietor i.e. Mohd Afroz (A-7) of M/s Export collection Enterprises along with his forwarding letter through his accountant. The forwarding letter Ex.PW11/A, Mark PW11/B (D-64) is authority letter issued in favour of the A-3 to receive documents from the PW-
11. Thus, it cannot be held that Mohd. Faheem (A-3) was merely the accountant or the employee of M/s Export Collection Enterprises. Further, Mohd. Faheem (A-
3), was identified by the PW-11 in the court and authority letter and forwarding letter Mark-PW11/B and PW-11/A had been collected by the IO from Mohd. Faheem (A-3). Prosecution has established that Mohd. Faheem (A-3) was having CBI Vs. Mukhtiar Singh & ors. Page 29 of 56 Case No.532175/2016 a clear nexus with M/s Export Collection Enterprises and Mohd. Afroz (A-7). It has not been disputed that Mohd. Faheem (A-3) was proprietor of M/s Asfa Crafts. It stands established that no office or shop actually existed in the name of M/s Ashfa Craft at shop no.7, Eidgah Market, Shamli Stand, Muzaffar Nagar, UP since 1973 and no firm under the name and style of M/s Ashfa Crafts dealing with brass export was in existence since the inception of Eidgah Market. Relevant witnesses were not cross examined on behalf of accused and their veracity has remained unimpeached. Prosecution has established allegations beyond the shadow of reasonable doubt by bringing satisfactory evidence on record that firms in question were not in existence at the given address and were fictitious and non existent firms.
26. In his deposition, Rampal Sharma (PW-1), doing spare part business in the name and style of M/s Sharma Automobiles at shop no. 14, Muzaffar Nagar, UP deposed that in Ratan market there was no work of Brass export conducted by any firm and he had never heard or saw the firm M/s Maha Vish Exports , dealing with export business at Ratna Market, Suzru Chungi, Meerut Road, Muzaffar Nagar, UP. Similarly, Ezar-ul-Haq (PW-42) deposed that in the year 1995, he had a shop dealing in retail/sale of oil at Ratan Market, Shop no. 2, Sujulu Chungi, District Mujaffer Nagar and it is not in his knowledge whether the firm was in the name of M/s Maha Vish Exports, and he had never seen any board of said firm in Ratna Market, Suzru Chungi, Meerut Road, Muzaffar Nagar, UP. As regards M/s Ashfa Crafts, Sardar Khan (PW-3) conducting business firm office/shop No. 7, Iedgah Market, Shami Stand, Muzaffar Nagar, UP, since 1973, in his deposition stated that he had never let out aforesaid shop/office to CBI Vs. Mukhtiar Singh & ors. Page 30 of 56 Case No.532175/2016 anyone since 1973, and never heard or saw the firm name and style M/s Ashfaq Crafts in the said market. In his deposition, Charanjeet Singh (PW-4), who since 1995 was conducting his business from shop no. 5 & 6 Idgah Market Muzaffar Nagar, UP since 1972 deposed that there was no firm and he had never heard about M/s Ashfaq Crafts dealing with Brass Export. As regards M/s Export Collection Enterprises, Shamshad Hussain (PW-6), deposed that Chori Gali was very small mohalla and he knew everyone in the locality. He had never heard or had seen firm in the name of M/s Export Collection Enterprises. In cross examination, PW-6 stated that he was not aware if any resident of the locality had opened any office inside his house.
27. As regards other firms, R.N. Sharma (PW-7) deposed that firm M/s International Traders Linkers never existed at Harnah Pura Street, Saharanpur and house no. 9/185 was purely residential one and he had never let out to any person for commercial activity. Similarly, Pawan Kumar Jain (PW-8) deposed that he had never heard or seen M/s Novelty Traders, dealing with Brass and metals or doing any other type of business in the locality Muzaffarnagar. Sri Chand Jain (PW-9), R/o 653, Jain Nagar, Muzaffar Nagar, UP having a grocery shop and who conducted his business since 1990 deposed that there was no locality in the name of Jain Bazar in Muzaffarnagar and he had never seen or heard any firm in the name and style M/s Novelty Traders in Jain Nagar, Muzaffar Nagar, UP. P.S. Gupta (PW-31), Executive Engineer, Municipal Board, Khatauli, District Muzaffar Nagar, UP. deposed that vide letter (Ex.P31/1), he had informed the IO, CBI that no firm by name M/s Novelty Traders was registered with Municipal Board, Khatauli, District Muzaffar Nagar.
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28. As regards, Union Brass Industries, Mohd. Ahsaan (PW-13) deposed that H. No. 13/1933, Mahulla Nakhasha, was his ancestral house and in the year 1993, no firm in the name of M/s Union Brass Industries was existing at his address. He testified that there was a small board in the name and style of M/s Union Brass Industries in one of the shops. However, the said shop used to remain always closed/locked and he was not aware name of the person who hired the shop for running the firm. As regards, M/s Jan Bhai Walaji & Co. Mohd. Usman Khan (PW-22) proprietor of M/s UP Foundry Works, Ali Mohalla, Saharapur, UP residing at Mehandi Saria, testified that the firm M/s Jassi Bhai Balaji & Co. never existed nor worked in Ali Mohalla or its adjacent areas.
29. Perusal of file (Ex.PW-2/4) pertaining to M/s Ashfa Crafts filed by the prosecution shows that along with the application, many documents i.e. Allotment of PAN number by the Income Tax Departmental on 19 th September 1990, challans for deposit of income tax, Certificate of Directorate of Industries in favour of M/s Ashfa Crafts, 109/F-10, Qasdi Tola, Khinni Gali, Muradabad for the factory located at Maqbara-1 (inside Phatak) Muradabad since 12 th November 1979, Certificate purported to be issued by Mohd Faheem and verified by Andhra Bank on 18th April 1987, Allotment of import export code no. KA000478 from the RBI dated 13 th December 1978 communicated by way of post and bearing photograph of Mohd. Faheem (A-3), Declaration having address Qasdi Tola, Khinni Gali, Muradabad and photograph of Mohd. Faheem (A-3) verified by the Andhra Bank, Muradabad Branch, Registration cum membership certificate (RCMC) of export promotion council for handicraft dated CBI Vs. Mukhtiar Singh & ors. Page 32 of 56 Case No.532175/2016 20th July 1992 which contained the address as 109/F-10, Qasdi Tola, Khinni Gali, Muradabad and Maqbara 2 inside the phatak and also shop no. 7 Eidgah Road, Muzaffarnagar, UP against column no.2, Office copy of letter dated 1 st May 1993 written by Mohd. Faheem (A-3) on behalf of M/s Ashfa Crafts with regard to Andhra Bank's Report regarding intimation for shifting their head office at Muzaffar Nagar conveyed to the Deputy Controller, Reserve Bank of India and Director General of Foreign Trade, New Delhi; Joint DGFT, Moradabad & DIC, Moradabad. Letter dated 21st May 1993 addressed to Secretary, Export Promotion Council for Handicrafts, New Delhi for endorsement of Head Office of Ashfa Crafts in the original RCMC was vide diary no. 2760 dated 28th May 1993 reflecting that the letter had been received by the office of addressee having fictitious address i.e. Shop No. 7, Eidgah Road, Muzaffar Nagar, UP, Forwarding letter dated 17th June 1993 addressed to M/s Ashfa Crafts by R.K. Verma, Export Promotion Officer stating that the aforesaid original RCMC valid upto 26 th January 1998 after incorporating the head office in column no. 2 as fictitious address Shop No.7, Eidgah Road, Muzaffarnagar, UP under due authentication. As per the forwarding letter, copy was addressed to Joint Chief Controller of Import & Export (CIA), 6-7, Asaf Ali Road, B.K. Roy Court, New Delhi, Regional Director, The Development Commissioner, The Joint Chief Controller of Import & Exports, Moradabad and General Manager, District Industrial Center, Moradabad.
30. Perusal of file (Ex.PW-10/27) indicates that forwarding letter dated 17th June 1993 of M/s Ashfa Crafts was communicated to the DGFT Panipat. Vide order dated 30th July 1993, it was revealed that the necessary actions regarding CBI Vs. Mukhtiar Singh & ors. Page 33 of 56 Case No.532175/2016 the aforesaid letter had been taken by DGFT Panipat. (Ex.PW-10/27) indicates that a letter (Ex.PW-10/29) had been sent to M/s Ashfa Crafts by Sh. G.N. Gupta, Assistant DGFT for Joint DGFT on 19 th July 1993 at the address, shop no.7, Eidgah Market, Muzaffar Nagar, UP intimating that his application/letter dated 8th July 1993 on the subject was under consideration and further communication will follow in due course. This court finds no merit in the defence version that the documents placed in the file show that the DGFT had sent correspondence at shop no.7 Eidgah Road, Muzaffar Nagar, UP, therefore it indicates that the said address was actually existing and in the defence version that in case, said firm was not existing at shop no.7, Eidgah Road, Muzaffar Nagar, UP, the prosecution could have discharged its burden by proving on record the envelopes wherein the correspondence was sent to show that those envelopes were returned unserved because of the reason that addressee was not found there or the firm was not existing etc or that no such envelopes or postal receipts have been proved by the prosecution to discharge its burden and that non payment of municipal taxes/registration with the concerned municipality or the statement of the neighbours cannot have the effect of nullifying the documents showing existence of the firm M/s Ashfa Crafts or that it is not the case of prosecution that shop no.7, Eidgah Market, Muzaffar Nagar, UP was not existing. It was pointed out that PW-3 had not produced any documentary proof to show that he was the owner of shop no.7 of the building or even any other documentary proof to show that he was in possession of the said shop since 1973 to falsify the documentary proof as regards existence of M/s Ashfa Crafts at shop no.7, Eidgah Market, Muzaffar Nagar, UP.
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31. In his deposition, Sh. Arjun Gajadhar Prasad Sharma (PW-10) stated his duties were to process the files for advance license as per the instructions of the Dy Director General, to prepare check list of the documents and to hand over the files to the DGFT for issuing the license. He deposed that after approval of the competent authority, the licensing file was received by the licensing assistant for comparing the license and then, it was again send back to the Head Office for signatures. He explained that procedure for obtaining the license was that the party was required to submit an application with full details and enclosed documents with the office of Dy DGFT. Diary number was given to that application and it was assigned to a licensing assistant who used to process the application and licenses after completing all formalities were sent to the parties by post or some times the licenses along with the DEEC Book was handed over to the person duly authorized by the proprietor of the firm or to proprietor himself on the satisfaction of Dy DGM and an identity card was issued from the office of Dy DGFT and that identity card was essential to be shown at the time of receiving the license.
32. In his deposition, PW-10 stated that file (Ex.PW-10/27) of M/s Ashfa Crafts consisting of 77 pages was processed by him and note sheet consisting of three pages was signed by him and by Mukhtiar Singh (A-1). PW-10 testified that application dated 8th July 1993 submitted by the proprietor of M/s Ashfa Crafts was marked to him for processing by Mukhtiar Singh who signed it as Ex.PW-10/28. Documents submitted by the proprietor along with his application were placed in the file marked as PW-10/D-1 to PW-10/D-20. Documents Ex.PW- 10/29 to Ex.PW-10/31 were signed by Mukhtiar Singh. Documents PW-10/D-21 CBI Vs. Mukhtiar Singh & ors. Page 35 of 56 Case No.532175/2016 to PW-10/D-24 were submitted by the proprietor. LUT forwarding letter (Ex.PW- 10/32) of the proprietor was marked by Mukhtiar Singh (A-1). LUT (Ex.PW-10/33) license and DEEC Book was handed over to the representative of the firm and a receipt was taken on letter (Ex.PW-10/33) and letter (Ex.PW-10/34) was signed by Mukhtiar Singh (A-1).
33. This court finds that prosecution version stands established by cogent testimonial evidence. PW-4 Charanjeet Singh having shop at 506, Eidgah Market, Muzaffar Nagar, UP has supported prosecution case that no firm in the name of M/s Ashfa Crafts existed. Similarly, PW-34 Rajbir Singh, Assistant Tax Superintendent of Nagar Palika Parishad, Muzaffar Nagar, UP testified that he informed CBI vide letter Ex.PW-34/A that the firms M/s Ashfa Crafts, M/s Export Collection Enterprises and M/s Mahabir Exports were neither registered nor paying tax. In cross examination, PW-34 deposed that all the buildings with the name of their owners were registered in the records of Nagar Palika for the purpose of Property Tax and a property which was not assessed to tax will not find its name in the Nagar Palika records. PW-34 clarified CBI query pertaining to registration of M/s Ashfa Crafts in Nagar Palika Parishad, Muzaffar Nagar, UP and that M/s Ashfa Crafts was not registered in Nagar Palika Parishad, Muzaffar Nagar, UP. M/s Ashfa Crafts was under legal obligation to register itself with authorities concerned or with Nagar Palika Parishad, Muzaffar Nagar, UP. It stands established that the firm of Mohd. Faheem (A-3) M/s Ashfa Crafts was not existing at shop no.7, Eidgah Market, Muzaffar Nagar, UP, hence the case of the prosecution in this regard stands proved.
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34. Next point to be considered is whether accused persons namely Mohd Faheem (A-3), Mohd. Afroz (A-7) and Mohd. Aslam (A-10), on the basis of false and fabricated documents and false verification of documents about existence of firms, CA Certificate, obtained import license by using forged documents as genuine and thereby committed offence u/s 468 & 471 IPC. Fact that the firms namely M/s Ashfa Crafts, M/s Export Collection Enterprises and M/s Iqbal Impex were not existing & functional at the given address at Muzaffar Nagar and at Saharanpur, is established from the statements of prosecution witnesses from municipal corporation and the local residents of the area where the alleged firms were existing, it has emerged on record that CA Certificate filed by the firms were fictitious. It has emerged on record that alongwith application (Ex.PW-10/28), applicant i.e. Mohd. Faheem (A-3) filed documents (Marked PW- 10/D1 to PW-10/D-24). PW-19 Rakesh Kumar Gupta, Chartered Accountant has supported case of prosecution.
35. As regards role of Mohd. Faheem (A-3) of placing fake Chartered Accountant Certificate on behalf of M/s Ashfa Crafts. Rakesh Kumar Gupta (PW-
19), CA testified that he or his firm M/s Rakesh Kumar & Associates, 128R, Khatiwala Tank, Indore having registration no. 70906/1981 had not issued certificate dated 2nd July 1993 (Mark PW-19/X) as regards M/s Ashfa Crafts, Muzaffarnagar placed in License File of M/s Ashfa Crafts, Muzaffarnagar (D-1) as well as certificate dated 28th June 1993 (Mark PW-19/Z) as regards M/s Iqbal Impex International, Saharanpur (D-8) in its License File. PW-19 categorically testified that he had no concern with the certificate issued by M/s A S & Co. CBI Vs. Mukhtiar Singh & ors. Page 37 of 56 Case No.532175/2016 Chartered Accountants, Khatghar, Punchpeera, Muradabad, UP under signatures of A.S.Sharma except that his enrollment no. 70906 was written thereon. File (Ex.PW-10/28) contained relevant document for issue of advance import license under Duty Exemption Scheme, quantity base of CIF Value Rs.66,00,000/- AM-
94. Documents enclosed for consideration before DGFT, Panipat i.e. Application in triplicate duly filed and signed, Application fees for Rs.13,200/- TR No. 175 dated 09.07.93, copy of RBI Code number in triplicate, copy of IE Code number in triplicate, copy of SSI Registration Certificate in triplicate, CA Certificate Original and two photocopies, Bank Realization Certificate original and two copies, copy of Export Order in triplicate, copy of RCMC in triplicate. In his deposition, Rakesh Kumar Aggarwal (PW-11), testified that certificate dated 27 th January 1993 (Ex.PW-11/1) at Page No.18 in the file of Export Collection Enterprises was issued by him on 27 th January 1993. He identified Mohd. Faheem (A-3) in the court who appeared before him as accountant of M/s Export Collection Enterprises with the books of accounts for 3 years, balance sheet, sale invoices and cash book ledgers, stated to be sent by the proprietor of M/s Export Collection Enterprises. Authority letter was given to PW-11 by Mohd. Faheem (A-3) authorizing him by the proprietor to receive document on his behalf, who obtained a receipt (Ex.PW-11/3) from Mohd. Faheem (A-3) while returning back documents and certificate.
36. Next point for determination is whether any pecuniary loss to the Government or evasion/loss of import duty was caused by any of the accused persons. Answer is in the affirmative. It stands established that accused persons imported goods under the Import License without paying the import duty. In this CBI Vs. Mukhtiar Singh & ors. Page 38 of 56 Case No.532175/2016 regard, Amitabh Kumar (PW-14), Joint Director, Central Excise Intelligence, Pune deposed that during 1992 to 1994 he was posted as Assistant Collector/Dy. Collector, Inland Container Depot, Pargati Maidan and Tughlakabad, New Delhi and his duty was to supervise work of custom assessment of duty, appraisal and other related work. He deposed that firms had imported materials through bills of entry which were cleared without any payment of duties under Duty Exemption Entitlement Certificate (DEEC) Scheme. He deposed that bill entry no. 108140, dated 08.06.1993 Ex.PW14/A of M/s Export Collection Enterprises was filed by M/s International Cargo Handling Services (Custom House Agent No. R-34-92) and vide said entry, firm imported mixed Brass scrap with net weight 17.472 metric tone with assessable value of Rs. 7,39,353/- approximately through container No. HAMU-1003040 against import license No. B/K/L/1/K/M1523667, dated 31.03.1993. The firm had also given undertaking (Ex.PW14/A2). Similarly, bill entry no. 109882 is dated 06.10.1993 Ex.PW14/D of M/s Export Collection Enterprises was filed by M/s International Cargo Handling Services (Custom House Agent No. R-34-92) vide this entry the firm had imported mixed Brass scrap with net weight 19.970 metric tone with assessable value of Rs.8,33,624/- approximately through container No. EACU-410537-8 against import license No. B/K/L/1/K/M1523667, dated 31.03.1993. The firm had also given undertaking Ex.PW14/D2. Bill entry no. 108373 is dated 25.06.1993 Ex.PW14/E of M/s Export Collection Enterprises was filed by M/s International Cargo Handling Services (Custom House Agent No. R-34-92) vide this entry the firm had imported mixed Brass scrap with net weight 19.157 metric tone with assessable value of Rs.7,98,319/- approximately through container No. TEXU- CBI Vs. Mukhtiar Singh & ors. Page 39 of 56 Case No.532175/2016 3150256 against import license No. B/K/L/1/K/M1523667, dated 31.03.1993. The firm had also given undertaking Ex.PW14/E2.
37. It may further noted that bill entry no. 108075, dated 03.06.1993 Ex.PW14/F of M/s Export Collection Enterprises was filed by M/s International Cargo Handling Services (Custom House Agent) vide this entry, the firm had imported mixed Brass scrap with net weight 26.115metric tone with assessable value of Rs. 10,88,276/- approximately through container No. TEXU-4124117 against import license No. B/K/L/1/K/M1523667, dated 31.03.1993. The firm had also given undertaking Ex.PW14/F2. Vide Ex.PW14/B M/s Mahavish had imported Brass scrap net weight 17.935, value Rs. 5,71,508/- against import license No. L/M/1523673/X/X/51, dated 21.04.1993, the undertaking Ex. PW14/B2 was given by the firm. Vide Ex.PW14/C M/s Mahavish imported Brass scrap net weight 16.455, value Rs.5,24,347/- against import license No. L/M/1523673/X/X/51, dated 21.04.1993. Bill entry no. 109766, Ex.PW14/G of M/s Ashfaq Craft was filed by M/s International Cargo Handling Services (Custom House Agent) vide this entry the firm had imported scrap brass honey with net weight 19.720 metric tone with assessable value of Rs. 8,17,358/- approximately through container No. EISU-34989883 against import license No.1523675, dated 05.05.1993. Bill entry no. 109232, Ex.PW14/H of M/s Ashfa Craft filed by M/s International Cargo Handling Services (Custom House Agent) and vide this entry the firm had imported scrap brass honey with net weight 39.176 metric tone with assessable value of Rs. 16,23,774/- approximately through container No. SLDU-283603-4 and TPXU-701320-6 against import license No.1523675, dated 05.05.1993. Bill entry no. 154394, Ex.PW14/J of M/s CBI Vs. Mukhtiar Singh & ors. Page 40 of 56 Case No.532175/2016 Ashfaq Craft filed by M/s International Cargo Handling Services (Custom House Agent) and vide this entry the firm imported scrap brass honey with net weight 42.720 metric tone with assessable value of Rs. 15,60,391/- approximately through container No. CMBU-208722-8 and MERU-244901-9 against import license No.1523675, dated 05.05.1993. The bill entry no. 110072, Ex.PW14/K of M/s Ashfa Craft filed by M/s International Cargo Handling Services (Custom House Agent) and vide this entry, firm had imported scrap brass honey with net weight 16.381 metric tone with assessable value of Rs. 6,78,966/- approximately through container No. CMBU-208722-8 and MERU-244901-9 against import license No.1523675, dated 05.05.1993.
38. In his deposition, J.K. Gulati (PW-15), Assistant Commissioner, Office of Commissioner, Customs & Central Excise, Delhi stated that he was assigned with the work of examination of goods, cargo and general administration and imported goods of the importer after their examination and completion of all the formalities were handed over to Clearing House Agent (CHA) or his authorized person and imported and Examination report were written on the bill of entry on its back. Backside of examination report (Ex.PW-14/D1)(D-62) and contains gate pass no. 12797 dated 18th October 1993, backside of examination report (Ex.PW-14/C1) and contains gate pass no. 91 dated 5th January 1994, backside of examination report (Ex.PW-14/E1), contains gate pass (Ex.PW-15/A), these report bear signatures of J.K. Gulati (PW-15), backside of examination report (Ex.PW-14/B1)(D-53) gate pass no. 00159 dated 19 th December 1994 and backside of examination report (Ex.PW-14/A1) contains gate pass (Ex.PW-15/B) and both these report bears signature of Randhir Singh, backside of CBI Vs. Mukhtiar Singh & ors. Page 41 of 56 Case No.532175/2016 examination report (Ex.PW-14/F1) bears signature of J.K. Gulati (PW-15), which contains gate pass (Ex.PW-15/C).
39. In his deposition, PW-16, Randhir Singh, deposed that vide bill entry no. 108140 dated 8th June 1993, mixed brass scrap was imported in the name of M/s Export Collection Enterprises, inspected by him on 15 th June 1993 and in the present case, custom duty was forgone. Bill of entry no. 108140 (Ex.PW-14/A) bears signature of PW-16 and permission to load the goods out of the custom premises is mentioned on backside of (Ex.PW-14/A), Bill of entry no. 100777 (Ex.PW-14/B) bears signature of PW-16 vide which 17.935 metric ton was imported by M/s Mehvish Exporter and permission to load the goods out of the custom premises mentioned on backside of (Ex.PW-14/B1), the custom duty forgone in this case also on the same lines. In his deposition, PW-17, R.K. Tyagi, Appraisor at ICD, Tuglakabad deposed that vide entry no. 111024 dated 24 th December 1993, 16.455 metric ton brass scrap was imported by M/s Mahvish Exports and duty was forgone. Vide entry No. 109882 dated 6 th October 1993, 19.97 metric ton brass scrap was imported by M/s Export Collection Enterprises which was dealt and assessed by him and custom duty was forgone. Vide entry no. 109766, brass scrap honey 19.720 metric ton & vide bill entry no. 109232 dated 1st September 1993, 39.176 metric ton brass honey was imported by M/s Ashfa Craft and in both cases, import custom duty was forgone.
40. On Scrutiny of evidence on record, for the sake of brevity & Clarity, details of material imported with assessable value are noted in tabular form, as under:
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Sl. Name of Bill of Assessable Applicable Duty paid Document/Exhibit No the firm Entry Value in Rs. custom No. duty/additional duty/total duty in Rs.
1. M/s Ashfa 110072 6,78,966/- 3,05,534.70/1,47,6 Duty Foregone as this import was D-55, Ex.PW14/K Crafts 75/4,53,210/- under Duty Exemption Entitlement Certificate
2. M/s Ashfa 109766 8,17,358/- 3,67,811.10/1,77,7 Duty foregone as this import was D-55, Ex.PW14/G Crafts 75.36/5,45,586.46 under Duty Exemption Entitlement Certificate
3. M/s Ashfa 109232 16,23,774/- 12,99,019.20/4,38, Duty foregone as this import was D-55, Ex.PW14/H Crafts 418.98/17,37,438/ under Duty Exemption Entitlement
- Certificate
4. M/s Ashfa 154394 15,60,391/- 12,48,312.80/4,21, Duty foregone as this import was D-55, Ex.PW14/J Crafts 305.57/16,69,618/ under Duty Exemption Entitlement
- Certificate
5. M/s Ashfa 283 2,18,456/- Not calculated Nil as this import was under Duty D-56, Ex.PW23/C Crafts (should be Exemption Entitlement Certificate Ex. PW 25/1 (622) minimum Rs. Ex. PW 25/2 1,45,819/-)
6. M/s Ashfa 2002 8,76,333/- Not calculated Nil as this import was under Duty D-47, Crafts (should be Exemption Entitlement Certificate Ex. PW 26/1 minimum Rs.
5,84,947/- )
7. M/s Export 108373 7,98,319/- 6,38,655.20/2,15,5 Duty foregone as this import was D-52/I, Ex. PW14/E Collection 46.13/8,54,201.33 under Duty Exemption Entitlement Certificate
8. M/s Export 109882 8,33,624/- 3,75,130.80/1,81,3 Duty foregone as this import was D-52/II, Ex. PW14/D Collection 13.22/5,56,444/- under Duty Exemption Entitlement Certificate
9. M/s Export 108140 7,39,353/- 5,91,482.40/1,99,6 Duty foregone as this import was D-52/III, Ex. PW14/A Collection 25.31/7,91,108/- under Duty Exemption Entitlement Certificate
10. M/s Export 108075 10,88,276/- 8,70,620.80/2,93,8 Duty foregone as this import was D-52/IV, Ex. PW14/F Collection 34.52/11,64,455/- under Duty Exemption Entitlement Certificate
11. M/s 100777 5,71,508/- 2,57,178.60/1,24,3 Duty foregone as this import was D-53, Ex.PW14/B Mahavish 02.99/3,81,482/- under Duty Exemption Entitlement Export Certificate
12. M/s 111024 5,24,347/- 2,35,956.15/1,14,0 Duty foregone as this import was D-53, Ex. PW14/C Mahavish 45.47/3,50,002/- under Duty Exemption Entitlement Export Certificate
13. M/s 1867, 14,06,514/- Not calculated Duty Foregone as this was an D-54, Ex.PW21/A Mahavish Line No. (should be import under advance license Export 42 minimum Rs.
(8365) 9,38,848/-)
14. M/s 1867, 5,69,949/- Not calculated Duty foregone as this was an D-54, Ex. PW21/B
Mahavish ( Line (should be Rs. import under advance license
Export No.41 3,80,446/-)
(8364)
41. In his deposition, P. Ramachandara (PW-30) deposed regarding retiring of the documents. He deposed that the procedure for retiring the documents was that on receipt of the Inward Demand Bill Foreign (IDBF), they were to be scrutinized by the import department of the bank on the basis of invoice, bill of exchange, bill of lading, certificate of insurance and packing list etc. annexed with said IDBF. Thereafter, intimation was given to the party in whose name bill had been received. The payment to the Foreign Bank from the account of CBI Vs. Mukhtiar Singh & ors. Page 43 of 56 Case No.532175/2016 Importer was used to be made on the authentication letter/cheque given by the account holder. IDBF would enter in the IDBF register and a number was to be allotted to the IDBF which would mention on the document along with the bank's stamp.
42. Prosecution has established that Mukhtiar (A-1) caused pecuniary advantage to Mohd. Faheem (A-3), Mohd. Afroz (A-7). As far as Mohd. Aslam (A-
10) is concerned, as advance license issued to M/s Iqbal Impex had not been used as no material was imported by this firm hence no pecuniary loss was caused to the government. Prosecution has proved nexus between granting advance license to M/s Export Collection Enterprises, Muzaffar Nagar and Mohd. Afroz (A-7). Mohd. Afroz (A-7) has failed to rebut the evidence that he had not applied for any advance license before DGFT, Panipat on behalf of M/s Export Collection Enterprises or infact, was not aware and had no connection with the said firm at any point of time. There is no dispute about identity of Mohd. Afroz (A-7) and it does not makes any dent in the case of prosecution, if he had not been called by investigative agency to join investigation or for interrogation at any point of time before filing charge sheet, as argued, in the face of overwhelming incriminating evidence on record.
43. It may be noted that in his testimony, Anil Kumar Sharma (PW-23) stated that as per document Ex.PW 23/A, M/s Ashfa Crafts, Muzzaffar Nagar was the importer of the goods for item no. 17 and imported goods in loaded form in the container were handed over to CHA on their request vide letter Ex. PW 23/B. on the back of bill of entry EX PW 23/C, there is endorsement regarding clearance of custom as point X. At the back of Ex PW23/C at the point X-1, there CBI Vs. Mukhtiar Singh & ors. Page 44 of 56 Case No.532175/2016 is an endorsement regarding receipt of goods in loaded container by the employee of CHA on behalf of the importers and other witnesses. Anil Verma (PW-26) has deposed that he was one of the director of M/s Sain Dass Kishan Chand Mehra Clearing & Forwarding Pvt. Ltd., Mumbai who was involved in custom clearing as an agent. He deposed that the Nickel Silver Scrap had been imported by M/s Ashfa Crafts vide (Ex.PW-23/C) 5.174 Mt. Tonnes Nickel Silver Scrap Rs.2,18,456/- and vide (Ex.PW-26/1) 20.791 Mt. Tonnes Nickel Silver Scrap Rs.8,76,333/-.
44. This court finds no merit in the contention of Learned defence counsel that there is no document to show delivery of the item/cargo to the recipient, hence it can be presumed that the A-3 did not import the aforesaid material and he is not the beneficiary or that the prosecution did not try to recover or trace the aforesaid material or the outcome from the import of the aforesaid material which, therefore, casts shadow on the case of the prosecution and boldens the presumption of innocence of the Fahim (A-3). There is overwhelming evidence on record to establish that vide aforenoted bills of entry M/s Ashfa Crafts as well as M/s Export Collection Enterprises had imported material. In response to the suggestion given by Learned counsel on behalf of accused persons, PW-26 admitted that they had received Ex.PW-25/1 (i.e. declaration submitted by M/s Ashfa Crafts alongwith bills/import documents received from the importer. PW- 26 clearly stated that the goods used to be handed over either to the importer in person or his agent or to the transporter authorized by importer and at the time of delivery of the item/cargo, signature of the recipients were obtained on the challan. He categorically denied the suggestion that items/cargo in question CBI Vs. Mukhtiar Singh & ors. Page 45 of 56 Case No.532175/2016 were not delivered to M/s Ashfa Crafts or that he did not handle the papers pertaining to the item/cargo in question.
45. On scrutiny of evidence on record, this court finds no merit in the submissions advanced by Learned counsel. Mohd. Faheem (A-3) is proprietor of M/s Ashfa Crafts, Mohd. Afroz Khan (A-7) was proprietor of M/s Export Collection Enterprises and Mohd. Aslam (A-10) was proprietor of M/s Iqbal Impex Arun Gajadhar Prasad Sharma (PW-10), who at relevant time had processed the files pertaining to the aforesaid firms of the accused, identified signature of Mukhtiar Singh (A-1), Deputy Director, DGFT, Panipat. PW-10 proved the relevant files, pertaining to M/s Ashfa Crafts (Ex.PW-10/7) bearing his signatures as well as signatures of Mukhtiar Singh (A-1), file pertaining to M/s Ashfa Crafts (Ex.PW- 10/27), file pertaining to M/s Export Collection Enterprises (Ex.PW-10/19) and file pertaining to M/s Iqbal Impex is (Ex.PW-10/46). He testified that the applications were submitted by proprietor of M/s Ashfa Crafts dated 8 th July 1993 and application submitted by proprietor thereof the documents submitted along with applicant firms were also submitted. Application dated 24 th March 1993 of M/s Export Collection Enterprises is (Ex.PW-10/20)(D-3). Application dated 8th July 1993 of M/s Ashfa Crafts (Ex.PW-10/28) (D-1). Application dated 6th July 1993 of M/s Iqbal Impex (Ex.PW-10/47)(D-8) is signed by their respective proprietors. Application in triplicate duly filled and signed, Application seized, Photocopy of RBI Code Number in triplicate, Photocopy of IE (Import Export) Code Number in triplicate, Photocopy of SSI registration certificate in triplicate, CA Certificate in original and two photocopies, Bank Realization Certificate original and two photocopies, Photocopy of Export Order in triplicate & CBI Vs. Mukhtiar Singh & ors. Page 46 of 56 Case No.532175/2016 Photocopy of RCMC (Registration cum Membership Certificate) in triplicate.
46. LUT (Letter of Undertaking) forwarding letter of proprietor was signed by Mukhtiar Singh (A-1) and license and DEEC Book (Duty Exemption Entitlement Certificate). License and DEEC Book was handed over to the representative of the firm and receipt was taken which was signed by Mukhtiar Singh (A-1). It is proved on record that import license was granted under DEEC Scheme i.e. without any payment of import duty. These firms of the accused had been granted license to import the goods without payment of duty under DEEC Scheme. The license/receipt issued in the name of Mohd Faheem of M/s Ashfa Crafts is (Ex.PW-10/33). License issued in the name of Mohd. Afroz of M/s Export Collection Enterprises is (Ex.PW-10/C-23) and the license issued to Mohd Aslam Khan of M/s Iqbal Impex International is (Ex.PW-10/58). Perusal of the record clearly proves that license no. 2051861 dated 12th August 1993 and DEEC Book No. 025764 had been issued to M/s Ashfa Crafts pertaining to Mukhtiar Singh (A-3), which are mentioned in the receipt no. (Ex.PW-10/33) vide which Mohd Faheem (A-3), proprietor of M/s Ashfa Crafts had received license in duplicate and DEEC book from the office of Dy Chief Controller, Import and Export, Panipat. On behalf of M/s Export Collection Enterprises pertaining to Mohd Afroz (A-7), the LUT was accepted against advance import license no. 1523667 (Ex.PW-10/25) and Afroz Khan (A-7) was authorized to collect advance import license alongwith DEEC Book. Signatures of Ashok Kumar were authorized on the letter of authority (Ex.PW-10/C-23). LUT furnished by Mohd. Afroz (A-7) M/s Export Collection Enterprises was accepted by Mukhtiar Singh (A-1). The receipt vide which Mohd. Afroz (A-7) of M/s Iqbal Impex International CBI Vs. Mukhtiar Singh & ors. Page 47 of 56 Case No.532175/2016 had received license in duplicate alongwith DEEC Book from the office of Deputy Chief Controller, Import and Export, Panipat. Advance import license no. 02051860 and DEEC Book No. 025763. There is authority letter on record executed by Mohd. Aslam (A-10) proprietor of M/s Iqbal Impex in favour of Wahajuddin as representative of collected documents, license and DEEC in this case was received by Wahajuddin vide receipt (Ex.PW-10/58).
47. All files pertaining to these firms contain indemnity cum guarantee forms executed and furnished by the accused persons namely Mohd Faheem (A-
3), Mohd. Aslam (A-10) and Mohd. Afroz (A-7). By virtue of the indemnity cum guarantee bond, parties who applied for import license was permitted to import goods in license noted above for specific value. By way of these bonds, accused persons had undertaken and guarantee that in the event of default in meeting the export obligations and conditions, they shall pay an amount equal to 18% interest per annum and amount of duty w.e.f the date of import of first consignment till the date of duty. Firms were found not existing at the given addresses were non-existent and therefore, firms were fictitious and further more, import licenses issued under the signature of Mukhtiar Singh (A-1) were without jurisdiction. Address mentioned by Mohd Faheem (A-3) pertaining to M/s Ashfa Crafts on the documents i.e. application (Ex.PW-10/28), which is on the letter head was Shop No. 7, Eidgah Road, Muzaffar Nagar, UP), treasury receipt by which fees had been deposited (Mark PW-10/D1) and application for license duty exemption scheme also mentioned address as Shop No. 7, Eidgah Road, Muzaffar Nagar, UP.
CBI Vs. Mukhtiar Singh & ors. Page 48 of 56 Case No.532175/2016
48. Submission advanced by the Learned defence counsel that the documents in question i.e. applications do not bear signatures of accused persons is not acceptable on the face of it, as during examination of the witnesses, it was never questioned by the accused persons that those documents did not bear signatures of accused persons namely Mohd Faheem, Mohd Afroz and Mohd Aslam on several documents in the concerned files i.e. (Ex.PW-2/4) - Application dated 7th October 1992 for allotment of importer- exporter code number alongwith annexures. (M/s Ashfa Crafts); (Ex.PW-2/3) - Application dated 16th November 1989 for allotment of importer-exporter code number alongwith annexures. (M/s Export Collection Enterprises); (Ex.PW-2/10)
- Application dated 4th July 1988 for allotment of importer-exporter code number alongwith annexures. (M/s Iqbal Impex); (Ex.PW-14/E2) - Declaration/Undertaking dated 26th June 1993 of M/s Export Collection Enterprises and at page 23 of D-52, Notification No. 117, File No. 602/14/78, DBK dated 9th June 1978; (Ex.PW-14/A2) - Declaration/Undertaking dated 14 th June 1993 of M/s Export Collection Enterprises (Ex.PW-14/F2) - Declaration/Undertaking dated 14th June 1993 of M/s Export Collection Enterprises (Ex.PW-26/4) - Letter of Authority issued by M/s Ashfa Crafts in favour of M/s S.K. Mehra, C & F Pvt. Ltd; (Ex.PW-26/6) - Letter of Authority issued by M/s Ashfa Crafts in favour of M/s S.K. Mehra, C & F Pvt. Ltd; (Mark PW- 11/B) - Letter of Authority issued by M/s Export Collection Enterprises in favour of Mohd. Faheem; (Ex.PW-11/3) - Certificate given by Rakesh Kumar Aggarwal (PW-11) who identified signatures and handwriting of Mohd. Faheem; (Ex.PW- 27/2) - Letter dated 27th August 1993 of Bank of India authorizing credit in CBI Vs. Mukhtiar Singh & ors. Page 49 of 56 Case No.532175/2016 favour of SB International by Bank of California, International, New York. Similarly other documents were executed regarding the import of goods by the firms of the accused persons (Ex.PW-27/5) & (Ex.PW-27/4).
49. PW-3 Sardar Khan categorically stated that he had never let out his shop to anyone since 1973 and had never heard or seen the firm under the name and style M/s Ashfaq Crafts. PW-4 Charanjit Singh in his deposition, stated that there was no firm under the name and style M/s. Ashfaq Crafts. There is nothing in cross examination to impeach the veracity of these witnesses. Rakesh Kumar Gupta (PW-19), Chartered Accountant in his deposition categorically stated after seeing certificate dated 2 nd July 1993 by A.S & Co. Chartered Accountants, Khat Ghar, Pachpera, Muradabad, UP (Mark PW-19/X & Y) that he had not issued, said certificate to M/s Ashfa Craft (A-3). PW-19 deposed that CA Certificate issued in favour of M/s Iqbal Impex, Saharanpur, UP (A-10) by A.S. & Co. (Mark PW-19/Z) had not been issued by him. PW-19 had absolutely no concern with these certificates except that he found that his enrollment no. 70906 was written on it about A.S. & Co. nor he knew Sh. A.S. Sharma, CA. As regards, M/s Export Collection Enterprises, Shamshad Hussain (PW-6) in his deposition, stated that he had never heard or seen firm M/s Export Collection Enterprises in Chopri Gali Laddha Wala. There is no merit in the contention of Ld defence counsel that material imported was not received by accused. Letters of authority (Ex.PW-26/4 & Ex.PW-26/6) were issued by Ashfa Crafts in favour of S.K. Mehra, (C&F) Pvt. Ltd. Turab house, 80, Mint Road, Fort, Bombay and in authority letters, the importer's license no. P/K/L/M/2051861 dated 12th August 1993 is mentioned. Vide this authority CBI Vs. Mukhtiar Singh & ors. Page 50 of 56 Case No.532175/2016 letter, Ashfa Crafts instructed M/s S.K. Mehra for clearance of the consignments through customs. Bill of entry (Ex.PW-23/C), notes in the last column, Bill of Lading number and date is mentioned, showing that M/s S.K. Mehra CHA No. 11/0121 had received the consigned goods and A-3 vide letter of authority (Ex.PW-26/4) had authorized S.K. Mehra to receive the consigned goods.
50. It is pertinent to note that vide declaration (Ex.PW-25/1), Ashfa Crafts declared in last para of (Ex.PW-25/1) as under:-
"We hereby declare that the publication of the said notification that the goods in question be cleared without payment of customs duty and auxiliary duty leviable thereon. We undertake to pay on demand any amount equal to the duty leviable in respect of the goods covered by bill of entry no. 622/1/12/93 (which exempts the goods payment of duty) are not complied by us."
51. Vide letter dated 21st December 1995 (Ex.PW-24/1), Assistant Commissioner of Customs Appraising Group VII informed V.P. Sharma, DSP, CBI that no export has taken place from the custom house engaged the advance licenses mentioned and registered with custom house and out of the four licenses, one license bearing no. P/K/L/M/1523673 dated 21 st April 1993 in the name of Mehvish Export, Muzaffar Nagar. Similarly, other consignment were received by the agents of the accused persons appointed through letter of authority. Accused cannot be allowed to escape their liability by the acts of their agents who had acted on their behalf and received the goods and custom duty was forgone in these cases. Accused persons admittedly, have failed to export goods as undertaken by them at the time of obtaining license. CBI Vs. Mukhtiar Singh & ors. Page 51 of 56 Case No.532175/2016
52. Contention raised by Ld defence counsel that Mohd. Faheem (A-3) was not financial competent to import goods is not tenable in view of facts and circumstances established by the prosecution by adducing cogent documentary and testimonial evidence. No deficiency is found in the investigation of the case and incriminating evidence to establish guilt of the accused persons collected by the IO from the public office and by producing the public documents. All exhibits and the statements of the prosecution witnesses put to the accused persons were answered by them u/s 313 Cr.P.C and accused persons failed to explain circumstances established against them. Prosecution has established beyond reasonable doubt that Ashfa Crafts and M/s Export Collection imported the goods through its agent S.K. Mehra. It is established that accused persons who in their application for license under deputy exemption scheme had undertaken to export handicraft goods, entered into conspiracy and cheated the Government in exempting custom duty. Documentary and testimonial evidence on record has established that accused persons since the inception misrepresented and obtained import license and exemption from duty and had no intention to export the goods made of imported raw material and agents of the accused persons acted under the authority of accused persons, thus, accused persons, proprietor of the alleged firms are liable under the charged offences.
53. Prosecution has established that CA certificates purportedly issued from A.S. Sharma & Co., CA, were not genuine and were forged. Although, in his Statement u/s 313 Cr.P.C, Mohd. Aslam (A-10) stated that he was not the proprietor of M/s. Iqbal Impex International and had no concern with the said CBI Vs. Mukhtiar Singh & ors. Page 52 of 56 Case No.532175/2016 firm in any manner whatsoever and had not applied for change of address of this firm or that he had not applied in office of Deputy Chief Controller of Imports & Exports, Vikas Manzil, Dharamshala Road, Moradabad, U.P for issuance of IEC, but this court finds that it has been established that application dated 6th July 1993 (Ex.PW-10/47) was filed by Mohd. Aslam (A-10). From from the public offices of DGFT, Muradabad has been produced by the Assistant Director, DGFT, PW-2 Rati Ram and files pertaining to M/s Iqbal Impex from the District Industries Center, Muradabad were seized by the IO. There is nothing in the cross examination of these witnesses to impeach their veracity or to show the documents produced by them were not produced from the proper custody or were tampered with, in any manner as stated by PW-33, Naresh Kumar. Perusal of the bill entry no. 109766, 109232, 154394, 110072, 283, 2002 pertaining to M/s Ashfa Crafts as shown from the document Ex.PW-14/G, Ex.PW- 14/H, Ex.PW-14/J, Ex.PW-14/K, Ex.PW-23/C, Ex.PW-25/1, Ex.PW-25/2 and Ex.PW- 26/1 shows that total import duty of more than Rs.57 lakhs was payable for the imported material. Moreover, bill entry no. 108140, 109882, 108373, 108075 pertaining to M/s Export Collection as shown from the document Ex.PW-14/A, D, E & F, shows that total import duty of more than Rs.33 lakhs was payable for the said imported material.
54. The story put forth by Mohd. Afroz Khan (A-7) that he had given Rs. 5000/- to Wahajuddin (A-4) for apply for a loan for the firm Export Collection Enterprises, which loan had to be taken from a bank amounting to Rs. one lac, as he wanted to start work as a contractor for colouring work of metal, wood and glass but he did not get the loan but the firm had never worked and was CBI Vs. Mukhtiar Singh & ors. Page 53 of 56 Case No.532175/2016 not registered and that he asked Wahajuddin to return his Rs. 5000/- as he did not get loan for a year, who kept befooling him and did not return has not been proved. The defence version of Mohd. Afroz Khan (A-7) has also not been established on record that he asked Wahajuddin to return Rs. 5000/-, who did not return Rs. 5000/- to him or there was a quarrel between him and Wahajuddin and that thereafter, few people from the locality made them settle the matter and stated that they would get his money back from Wahajuddin, or stated that he would return the money to him in installments as he was unable to return the same immediately. It has not been proved even by preponderance of probabilities by Mohd. Afroz Khan (A-7) that wahajuddin returned Rs. 1000/- to him and then absconded from Moradabad or he was unable to trace Wahajuddin. He even could not established that to which bank he had applied for a loan to the bank around 1988-1989 or that Wahajuddin had taken his signatures for taking loan.
55. This court finds no merit in the contention of Learned defence counsel that the accused persons was not having money or the financial capacity to import the material under the advanced import license obtained by them or that prosecution has not established knowledge on their part about the use of their advanced licenses or that material was received by them in view of the overwhelming documentary and testimonial evidence on record. Once document on record have established beyond reasonable doubt that the advance import licenses were obtained by the accused persons A-3, A-7 and A- 10 and the material had been imported as far as A3 and A7 are concerned by their Clearing House Agents (CHA), it was for the accused persons to establish CBI Vs. Mukhtiar Singh & ors. Page 54 of 56 Case No.532175/2016 and to show that their defence was probable that they had no connection with the clearing house agents who had received imported material as the burden of proving the said facts which was especially within their knowledge would be upon them u/s 106 Indian Evidence Act.
Conclusions:
56. To sum up, on appreciating the evidence on record as a whole, this court finds that Late Sh. Mukhtiar Singh (A-1), public servant posted as Dy Director General, Foreign Trade, Panipat, Haryana, during 1993, had entered into a criminal conspiracy by having agreed to do and caused to be done legal acts with the object to cheat the Government of India by processing and allowing the applications for issuance of several quantity based duty free advance licenses to the fictitious and non existent firms namely M/s Ashfa Crafts, Muzaffarnagar, M/s Export Collection Enterprises, Muzaffarnagar and Iqbal Impex International, Saharanpur and other firms belonging to the accused who have since expired on the basis of false and fabricated documents.
Evidence on record establishes that forged documents including CA Certificates were filed and fraudulently and dishonestly used as genuine by the accused persons namely Mohd. Faheem (A-3), Mohd Afroz (A-7) and Mohd Aslam (A-10) pertaining to the non-existent firms at the inception for obtaining advance import licenses to misrepresent and dishonestly induced the Director General of Foreign Trade, a Government Office, and in order to use the same for cheating the Government of India. In the facts and circumstances noted above, accused persons have to be imputed with the requisite knowledge at the time of their use that the documents were forged.
CBI Vs. Mukhtiar Singh & ors. Page 55 of 56 Case No.532175/2016
57. Nine advance licenses were recommended and issued to the non- existent firms. Prosecution has established import of Brass and German Silver Scrap by M/s Ashfa Crafts, M/s Export Collection Enterprises, and M/s Mahavish Export. Import duty was forgone under the duty exemption entitlement certificate and since the goods were not exported, a wrongful loss of the said amount to the Government and consequent wrongful gain to importer/accused persons was caused. In case of M/s Iqbal Impex pertaining to Mohd. Aslam (A-
10), although no material was imported and there was no loss of import duty in his case but the fact remains that even in his case the advance import license was obtained on the basis of forged documents, CA Certificate.
58. In the result, this court finds that prosecution has established beyond reasonable doubts commission of the offence of criminal conspiracy punishable under Section 120B r/w 420, 468, 471 IPC & r/w 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988 as well as substantive offences u/s 420, 468 & 471 IPC against Mohd. Faheem (A-3), Mohd. Afroz Khan (A-7) and Mohd. Aslam (A-10) therefore, these accused persons are hereby convicted for the aforenoted offence.
ANNOUNCED IN THE OPEN COURT VINAY KUMAR KHANNA
on 27 February 2017
th
Special Judge-CBI (PC Act)-06
Tis Hazari Courts/Delhi
CBI Vs. Mukhtiar Singh & ors. Page 56 of 56