Delhi District Court
Pw 19/B vs Mohamed Haji Latif on 20 December, 2013
IN THE COURT OF SH. RAKESH SYAL, SPECIAL JUDGE, (PC ACT)
& (CBI)-03, SOUTH WEST DISTRICT, DWARKA, NEW DELHI
CBI Case No. 35/12
RC No. 2(E)/2001/EOW-I/DLI
In re:
Central Bureau of Investigation
Vs.
1. Moti Lal Mathur,
S/o Shri B.L. Mathur,
R/o Pocket A-10/74-A
Kalkaji Ext.
New Delhi-19.
2. Yash Pal Babbar,
S/o Pishori Lal Babbar
R/o C-113, Sarita Vihar,
New Delhi-76
3. Ashok Kumar,
S/o Shri Madan Lal,
R/o F-1/34, Budh Vihar, Phase-I,
Delhi-86
4. Arvind Kumar Sharma,
S/o Late Shri Shambhu Nath Sharma,
R/o GH-2/122-B, Paschim Vihar,
New Delhi.
5. Pramod Kumar Gupta,
S/o Shri Prakash Gupta,
R/o C-479, IIIrd Floor, Vikas Puri,
New Delhi-18,
CBI Case No. 35/12 1 of 47
6. Ramesh Khaneja,
S/o Shri Raj Gopal,
R/o A-62/63, Mansa Ram Park,
Uttam Nagar,
New Delhi-110028.
Date of Institution of Case : 31-01-2003
Date on which Judgment was reserved : 18-12-2013
Date on which Judgment was delivered : 20-12-2013
JUDGMENT
Facts 1.1 This case was registered on 24-01-2001, on the complaint dt. 29-9-2000 of Shri K. B. Mahapatra, CVO, National Insurance Company Ltd. (hereinafter referred to as NIC), Calcutta, alleging that during the year 1998-99, accused No. 2 Shri Yash Pal Babbar, the then Asstt. Manager and accused No. 1 Shri Moti Lal Mathur, the then Administrative Officer, of NIC, Divisional Office, (hereinafter referred to as DO)-XIII, New Delhi entered into a criminal conspiracy with private persons/surveyors/tracers namely accused No. 3 Ashok Kumar, Prop. M/s Santoshi Chemicals (Consignee), E-3/7, Shiv Ram Park, Nangloi, Delhi-41, accused No. 5 Shri Pramod Kumar Gupta (Surveyor), M/s P. Gupta & Co., AS-16 Shiva Enclave, Paschim Vihar, Rohtak Road, New Delhi, accused No. 4 Arvind Kumar Sharma, (Tracer/Investigator) M/s Pooja International, GH-2/12 B, Ankur Apartment, Paschim Vihar, New Delhi-63 and accused No. 6 Sh. Ramesh Khaneja (Recovery Agent) Prop. M/s Globe Claims Recovery Consultants, A-390, Chokhandi, Tilak Nagar , New Delhi-18, and obtained a marine claim of Rs. 1,77,948/- in favour of M/s Santoshi Chemicals from NIC, DO-XIII, New Delhi on the basis of forged and CBI Case No. 35/12 2 of 47 bogus documents.
1.2 Investigation was conducted during which, inter-alia, statements of witnesses were recorded, documents were seized and specimen handwritings/signatures of suspects and questioned documents were got examined from the CFSL.
1.3 Investigation revealed as under :-
1.3.1 Accused No. 3 Ashok Kumar, consignee took a marine policy No. 4500436 on 26-2-98 for Rs. 2,60,000/- for dispatch of tolwin oil from M/s Leo Dye Chem, B/136, Ghatkopar Industrial Estate, LBS Marg, Ghatkopar (W), Mumbai to M/s Santoshi Chemicals, E-3/7, Shiv Ram Park, Nangloi, Delhi-41. M/s Leo Dye Chem purportedly sent tolwin oil to the insured vide Goods Receipt (hereinafter referred to as GR) No. 2265 dt. 27-02-1998 of M/s Shree Durga Carriers, A-105A, Adhyapak Nagar, Nangloi, Delhi. The insured reported the claim due to leakage on 4-3-98. Accused No. 1 Moti Lal Mathur appointed accused No. 5 Pramod Kumar Gupta for survey. He submitted survey report on 16-03-1998, which was received by accused No. 1 Moti Lal Mathur on 27-03-1998. A claim form dt. Nil was submitted by accused No. 3 Ashok Kumar and a claim file No. 45/97-98/50 was opened in the name of M/s Santoshi Chemicals in NIC, DO XIII, New Delhi.
1.3.2 Accused No. 4 Arvind Kumar Sharma was appointed as Investigator and he submitted report vide letter dt. 30-03-1998 to the Divisional Manager, NIC, DO-XIII, R.K. Puram, New Delhi. M/s Pooja International also submitted a bill vide invoice dt. 01-04-1998 for Rs. 5,000/- signed by Sh. K.V. Juneja. An amount of Rs. 5,000/- was paid to M/s Pooja International vide Cheque No. 599756 dt. 31-03-1998. This amount was credited in Current Account No. 279 of M/s Pooja International at OBC, CBI Case No. 35/12 3 of 47 Paschim Vihar, New Delhi on 29-04-1998.
1.3.3 The claim was processed by Shri Anupam Gupta, Asst., recommended by accused No. 1 Moti Lal Mathur for Rs. 1,77,948/- and sanctioned by accused No. 2 Yash Pal Babbar on 31-03-1998. The claim amount of Rs. 1,77,948/- was paid to accused No. 3 Ashok Kumar vide cheque No. 599521 dt. 31-03-1998 of Indian Overseas Bank, R.K. Puram, New Delhi. The proceeds of the claim cheque were credited into Current Account No. 4995 of the insured in PNB, Tri Nagar, New Delhi. 1.3.4 Accused No. 6 Ramesh Khaneja of M/s Globe Claims Recovery Consultants was appointed as Recovery Agent. An amount of Rs. 9,050/- was deposited as recovery amount vide pay order No. 753782 dt. 24-07-1998 for Rs. 8,050, of PNB, Dev Nagar and Cheque No. 746291 dt. 23-07-1998 for Rs. 1,000/- of SBI. This pay order was got issued by accused No. 3 Ashok Kumar by depositing Rs. 8,050/- in cash in PNB, Dev Nagar, New Delhi. An amount of Rs. 1,337/- was paid as recovery fee vide cheque No. 244928, dt. 09-10-1998 of Indain Overseas Bank, R.K. Puram.
1.3.5 M/s Leo Dye Chem had not sent any consignment of tolwin oil to the insured. The transport company was not found at the given address during the relevant period. Accused No. 3 Ashok Kumar and his brother were the owner of the premises, the address of which was given for Shree Durga Carrier. Shri H.C. Mehta of M/s Leo Dye Chem gave in writing that he was not having any business dealing with M/s Santoshi Chemicals. The invoice of M/s Leo Dye Chem was also forged.
1.3.6 M/s Globe Claims Recovery Consultants had not made any recovery on their own and accused No. 1 Moti Lal Mathur had handed over the cheque of recovery for depositing in the NIC, DO-XIII, New Delhi. The CBI Case No. 35/12 4 of 47 survey report and the receipt of M/s Om Dharam Kanta were fake. Report of tracer, submitted by accused No. 4 Arvind Kumar Sharma of Pooja International dt. 30-03-1998 was also fabricated. The claim was processed and got sanctioned on the basis of forged and fabricated documents by connivance of all the accused persons to receive an amount of Rs. 1,77,948/- from NIC, New Delhi, thereby causing a loss of Rs. 1,77,948/- to the NIC, New Delhi and wrongful gain to the accused persons.
1.4 On completion of investigation, a charge sheet U/s 120-B r/w sections 420, 467, 468 and 471 IPC and Sec. 13 (2) r/w section 13 (1) (d) of Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act), and substantive offences thereof was filed against the accused persons. 1.5 It may be mentioned that as per the documents/letter heads of the insured/consignee Santoshi Chemicals as available in the claim file, the name of the said consignee has been mentioned as "Santoshi Chemicals". Accused No. 3 Ashok Kumar is alleged to be the proprietor of the same. However, the parties as well as the witnesses have at many places/times referred to the same as "M/s Santoshi Chemicals". There is no dispute that any reference to "M/s Santoshi Chemicals" means "Santoshi Chemicals ." Thus, the consignee is being hereinafter referred to as "Santoshi Chemicals". Same is the case with respect to "Leo Dye Chem", "Shree Durga Carriers", "P. Gupta and Co.", "Pooja International" and "Globe Claims Recovery Consultants", which have been, at many places/times, referred to by the parties and the witnesses as "M/s"Leo Dye Chem", "M/s Shree Durga Carriers", " M/s P. Gupta and Co.", "M/s Pooja International" and "M/s Globe Claims Recovery Consultants".
2.1 Copies in terms of Section 207 Cr.P.C. were supplied to the CBI Case No. 35/12 5 of 47 accused persons. Charges 3.1 Vide order dt. 17-02-2004 of my Ld. Predecessor, charges were framed against the accused persons as under :-
a) against all the accused persons, u/s 120-B r/w section 420/467/468/471 IPC and section 13 (1) (d) r/w section 13 (2) of the PC Act,
b) against accused No. 1, Moti Lal Mathur u/s 13 (2) r/w section 13 (1) (d) of the PC Act,
c) against accused No. 2, Yash Pal Babbar u/s 13 (2) r/w section 13 (1) (d) of the PC Act,
d) against accused No. 3, Ashok Kumar u/s 420 IPC and section 471 r/w sections 467 and 468 IPC,
e) against accused No. 4, Arvind Sharma u/s 468 IPC,
f) against accused No. 5, Pramod Kumar Gupta u/s 468 IPC,
g) against accused No. 6, Ramesh Khaneja u/s 467 IPC.
The accused persons pleaded not guilty to the charges and claimed trial. Prosecution Evidence 4.1 PW 1 Sh. Kruti Bas Mahapatra, Chief Vigilance Officer, NIC on whose instructions, investigation was carried out has filed the complaint, dt. 29-09-2000, Ex.PW1/B with the CBI. PW 2 Sh. A.K. Seth, PW 3 Sh. A.K. Tiwari and PW 14 Sh. A.L. Gambhir, all officers of the Vigilance Department of NIC had conducted the investigation during which they had seized the files, including the claim file, Ex.PW2/A of Santoshi Chemicals, and given their Report, Ex.PW1/A. 4.2 PW 8 Sh. P.K. Aggarwal, Administrative Officer, Vigilance Department, NIC has handed over 9 marine claim files to the CBI vide seizure CBI Case No. 35/12 6 of 47 memo, Ex.PW8/A. PW 10 Sh. C.D. Ram, Assistant NIC, DO-XIII has handed over disbursement voucher to the IO vide seizure memo, Ex.PW10/A. 4.3 PW 6 Sh. Vinod Kumar, Sr. Assistant, NIC, DO XIII, and PW 12 Sh. Anupam Rai Gupta, Sr. Assistant, NIC, DO XIII, have testified about the claim file, Ex.PW2/A and identified the signature/handwriting of accused No. 1, Moti Lal Mathur and accused No. 2, Yash Pal Babbar on various documents in the said file viz. notings Ex.PW 6/A and Ex.PW6/B on the inside front cover and inside back cover of the claim file, disbursement voucher dt. 9-10-98, Ex PW 6/C, Bill dt. 14-8-98, Ex. PW6/D of Globe Claims Recovery Consultants, Receipt dt. 14-8-98, Ex. PW 6/E, Invoice dt. 1-4-98 of Pooja International, Claim Disbursement Voucher dt. 31-3-98, Ex.PW 6/G, carbon copy of Inland Transit Policy, Ex. PW 6/H, carbon copy of Cover Note dt. 26-2-98, Ex. PW 6/J, Cover Note, Ex. PW 6/K and letter dt. 4-3-98, Ex. PW 6/L of Santoshi Chemicals.
4.4 PW 7 Ms. Vandana, Divisional Manager, DO-XIII and PW 9 Sh. R.C. Sood, the then Administrative Officer, DO-XIII have deposed about the documentation and procedure for settlement of a marine claim and deficiencies in the claim file, Ex.PW2/A. 4.5 PW 11 Sh. Sh. R. Vaidyanathan, Chief Manager, Indian Overseas Bank, where NIC was having current accounts Nos. 1194 and 1197, has deposed about handing over of the cheques vide letter dt. 04-05-2002, Ex.PW11/A, statement of current account No. 1194, Ex.PW11/B and cheque No. 599521, dt. 31-03-98, Ex.PW6/M, drawn in favour of Santoshi Chemicals. 4.6 PW 19 Sh. H.C. Mehta, proprietor of Leo Dye Chem, Mumbai deposed that no consignment of tolwin oil was sent by Leo Dye Chem to Santoshi Chemicals, vide Credit Memo dt. 27-3-98, Ex. PW 19/A or GR, Ex.
CBI Case No. 35/12 7 of 47 PW 19/B, or otherwise. 4.7 PW 4 Sh. Sonu Gupta, PW 5 Sh. Shiv Sharan and PW 13 Sh.
Mohan Mehto, Postman have deposed about non-existence of Shree Durga Road Carriers.
4.8 PW 18 Sh. Gyan Chand Gupta has testified about non-existence of the consignee Santoshi Chemicals.
4.9 PW 17 Sh. B.S. Bisht is the part IO. PW 20 Sh. Jyoti Kumar is the initial IO and PW 21 Sh. R.P. Kaushal is the final IO. Statement of Accused Persons 5.1 Statements of all the accused persons were recorded u/s 313 Cr.P.C., wherein they generally denied the incriminating evidence and stated that they had been falsely implicated in this case.
5.2 Accused No. 1 Moti Lal Mathur also stated, inter-alia, that while relying upon the reports of the surveyor/tracer/ investigators, he had acted in utmost good faith and he had no way to verify either the existence of the parties concerned or the transaction in question as he was not required to physically verify the same.
5.3 Accused No. 2 Yash Pal Babbar further stated, inter-alia, that he had sanctioned the claims, within his financial powers, by following all the rules and regulations of NIC. It was not his duty to physically verify the claim documents or the consignment of goods. He always relied, in utmost good faith, upon the report of the surveyor/ recovery agent/tracers, documents submitted by the claimant and the recommendations of his subordinates. 5.4 Accused No. 3 Ashok Kumar also stated that Mr. Mehta was doing most of his business through invoices and books of accounts which were never reflected for the tax purposes of his firm and his own income tax CBI Case No. 35/12 8 of 47 return. He has deposed falsely in order to save himself from implications of this case and also to avoid any other liability with respect to his business. His firm was doing business in paints and chemicals at 3/7, Shiv Ram Park, Nangloi, Delhi. The consignment was sent by Leo Dye Chem, Mumbai to Delhi through Shree Durga Carriers and the tanker met with an accident, as a result of which, it turned turtle and the tolwin oil spilled, for which survey was conducted. Photographs were taken by the surveyor after the report was lodged with the concerned police station and information was given to NIC. 5.5 Accused No. 4 Arvind Kumar Sharma stated that he submitted his report on the basis of information given by his employee who conducted inquiry in this case.
5.6 Accused No. 5 Pramod Kumar Gupta also stated that he was appointed as a surveyor in this case on 4-3-1998 vide Ex. PW 6/L. It was informed that Tanker covered in GR No. 2265 dt. 27-2-1998 had met with an accident at Dharuhera. He accordingly went to the site of accident at Dharuhera for survey. He conducted survey and took photographs of the accidental vehicle alongwith the damaged goods. He had submitted his survey report alongwith photographs, which is placed in the claim file, Ex. PW 2/A. His role was limited only to this aspect and thereafter, he had no concern with the processing and passing of the claim.
5.7 Accused No. 6 Ramesh Khaneja stated that he has been made a scapegoat in this matter as the CBI wanted to implicate him in this matter to sub serve their vested interest and in obedience of the senior officers. Defence evidence 6.1 Accused No. 3 Ashok Kumar has examined three witnesses, DW 1 to DW 3 in his defence. DW 1 Sh. Bodh Ram has deposed about existence CBI Case No. 35/12 9 of 47 of a factory of Santoshi Chemicals dealing with chemical etc. in the backside of plot bearing No. E-3/7, Shivram Park, Nangloi, Delhi and accused No. 3 Ashok Kumar having an STD shop in the said plot.
6.2 DW 2 Sh. Yuvraj testified about STD shop of accused No. 3 Ashok Kumar at Shivram Park and certain boxes containing colour etc. being kept in plot in which the said shop was situated.
6.3 DW 3 Sh. Virender Kochar is son of cousin of accused No. 3 Ashok Kumar who stated about shop cum office of Sh. Praveen Kochar, brother of the said accused on 100 sq. yards out of 200 sq. yards plot at A-105, Adhyapak Nagar.
6.4 DW 4 i.e. accused Ramesh Khaneja, Proprietor of Globe Claim Recovery Consultants has deposed, inter-alia, about making recovery from Durga Carriers and submitting cheque of recovery amount to accused No. 1 Moti Lal Mathur.
6.5 Accused No. 1 Moti Lal Mathur & accused No. 2 Yash Pal Babbar have examined two witnesses i.e. DW 5 and DW 6 besides themselves appearing as witnesses u/s 313 Cr.P.C. r/w Sec. 21, PC Act. DW 5 Ms. Yamini Luthra is Administrative Officer, Regional Office, NIC who deposed, inter-alia, about applicability of Claims Procedural Manual, Ex.DW5/C, before issuance of new guidelines around the year 2007 and about destruction of record i.e. Audit Reports, Confidential Reports of accused No. 1 Moti Lal Mathur & accused No. 2 Yash Pal Babbar and cheque dishonor register in terms of circular dt. 23-04-2013.
6.6 DW 6 Sh. Dinesh Gupta, Assistant Manager, NIC, DO-XIII, has also testified about destruction of record i.e. Claim Intimation Register and Underwriting policies in terms of circular dt. 23-04-2013.
CBI Case No. 35/12 10 of 47 6.7 DW 7 Yash Pal Babbar deposed, inter-alia, that he has
sanctioned the claim within his financial powers by following the rules and regulations of NIC and relying upon reports of the surveyor/recovery agent/tracer, documents submitted by the claimant and recommendations of his subordinates in utmost good faith and that he has never met accused No. 3 Ashok Kumar or his representative in his office during the processing of the claim.
6.8 DW 8 Moti Lal Mathur has stated, inter-alia, about the procedure for settlement of claim and deposed that he had no role in appointment of surveyor or verifier. As Administrative Officer, he was not required to verify the Surveyor's Report, the Verifier's Report, the existence of Consignor/Consignee, the consignment or the Transporter. He was only required to check whether the surveyor's report and verifier's report were in consonance with the insurance particulars, the premium has been collected, the claim was covered within the scope of the Insurance Policy, whether details of packing, if any, were given in the proposal form and if any adverse remark was given by the Surveyor or Verifier. If the above was found in order, the claim was recommended to the Divisional Manager. If the goods were insured and claim was filed within the validity of the Insurance policy, then he could not reject the claim, provided all the documents were in order. In the present case, the claim had been processed and recommended by the Assistant, Sh. Anupam Rai Gupta. The recommendation made by him in this case and the amount involved was within his power as per the Claims Procedural Manual.
Arguments on behalf of CBI.
7.1 Sh. Manoj Shukla, Ld. P.P. has argued that prosecution has CBI Case No. 35/12 11 of 47
been able to prove its case beyond a reasonable doubt. PW 19 Sh H.C. Mehta has confirmed that no consignment was ever sent by Leo Dye Chem, Mumbai to Santoshi Chemicals. Further, PW 4 Sh Sonu Gupta, PW 5 Sh Shiv Sharan and PW 13 Sh Mohan Mehto have established that Shree Durga Carriers did not exist at their given address. PW 18 Sh Gyan Chand Gupta deposed about non existence of the consignee. PW 2 Sh A.K. Seth, PW 3 Sh A.K. Tiwari and PW 14 Sh A.L. Gambhir have proved the investigation conducted by them and PW 1 Sh Kruti Bas Mahapatra has proved the complaint made by him to CBI. PW 8 Sh P.K. Aggarwal and PW 10 Sh C.D. Ram have proved handing over of documents in question to the CBI. PW 6 Sh Vinod Kumar and PW 12 Sh Anupam Rai Gupta have proved the claim file, Ex.PW2/A and handwriting/ signatures of accused No. 1 Moti Lal Mathur and accused No. 2 Yash Pal Babbar in the said file. PW 7 Ms Vandana and PW9 Sh R.C. Sood have proved the procedure followed in settlement of claims. PW 11 Sh R. Vaidyanathan has confirmed the debit of claim amount from the account of NIC. PW 17 Sh B.S. Bisht, PW 20 Sh Jyoti Kumar & PW 21 Sh R.P. Kaushal have substantiated the investigation carried out in this case. He also submitted that besides the direct evidence, the circumstantial evidence brought on record prove that all the accused persons had conspired to cheat NIC.
Arguments on behalf of Accused No. 1, Moti Lal Mathur. 8.1 Sh. Shaju Francis, Counsel for accused No. 1 Moti Lal Mathur has argued that business of insurance is based on utmost good faith and no physical verification of claims is done by the Officers or staff of NIC. In the present case, all requirements of the Claim Procedural Manual have been complied with, accused No. 1 Moti Lal Mathur has performed his duties in his CBI Case No. 35/12 12 of 47 official capacity, the claim was made and the reports of the outsourced agencies like surveyor, verifier etc. were submitted within the parameters of NIC. He also argues that it was mandatory for accused No. 1 Moti Lal Mathur to act upon the claim within 24 hours of the intimation of the claim. He further argues that the testimony of PW19 Sh H.C. Mehta is not reliable as no document, like books of business i.e. invoice book, ledger etc. concerning Leo Dye Chem has been produced to substantiate his statement. Mrs. J.V. Rasam who allegedly conducted investigation with regard to Leo Dye Chem was neither cited nor examined as a witness. He also argued that the allegation that Shree Durga Carriers did not exist at A-105, Adhyapak Nagar, Nangloi, Delhi has not been proved, as no evidence from the civic authorities regarding occupancy of the said premises has been brought on record. The evidence of PW 4 Sh Sonu Gupta and PW 5 Sh Shiv Sharan is of no value since in the present society, people are hardly aware of occupants of buildings in their neighbourhood. Evidence of PW 13 Sh Mohan Mehto, who is a Postman is also not of much value since the distribution of Dak is being gradually shifted to Private Couriers. Further, there has been no investigation by the Vigilance Team of NIC or the CBI regarding the accident of truck No. GJ 6U 6635, despite there being photographs of the accident and complaint, dt. 04-03-1998 of the truck driver Kulwant Singh made to PS Daruhera, on record. It is also argued that no inventory of documents was prepared at the time of seizure of the claim files and the files were also not sealed, either by Vigilance Team of NIC or the CBI, Thus, at this stage, any argument regarding absence of any document in the claim file is of no consequence. It is further argued that the claim note was prepared by Sh. Anupam Rai Gupta who has placed various claim documents in the file and accused No. 1 Moti Lal Mathur CBI Case No. 35/12 13 of 47 has merely acted upon the same. No irregularity in the recommendations made by him has been pointed out by any audit of DO-XII. His own testimony as DW 8 regarding procedure followed in settlement of claims and his processing of the present claim in good faith has gone unrebutted. There is no evidence of accused No. 1 Moti Lal Mathur meeting other accused persons for the purpose of conspiracy or sharing of any money. Ld. Counsel thus concludes that prosecution has failed to prove its case against accused No. 1 Moti Lal Mathur beyond a reasonable doubt.
Arguments on behalf of Accused No. 2, Yash Pal Babbar. 8.2 Sh. Umesh Sinha, counsel for accused No. 2 Yash Pal Babbar has argued that there has been no explanation by the prosecution regarding delay in lodging of FIR or as to why 9 charge sheets have been filed out of a single FIR or why FIR was registered without conducting preliminary enquiry. He further argues that the prosecution is required to prove its case beyond a reasonable doubt, as statutory presumption u/s 20 of the PC Act is not applicable in the present case. He also contends that 20-25 officers/officials were working under accused No. 2 Yash Pal Babbar, who was Head of Office. He had only sanctioned the claim on the basis of the claim documents, reports of surveyor, verifier etc. and recommendations of his subordinate officers, within his financial powers. The business of insurance is based on utmost good faith. There was no reason for him to doubt the genuineness of any document placed in the claim file or the reports of surveyor/verifier etc. or the recommendations of his subordinates. As per the Claims Procedural Manual, Divisional Manager is not required to conduct physical verification. Ld. counsel has further argued that mere oral testimony of PW 19 Sh H.C. Mehta is not sufficient to prove that no consignment was sent by Leo Dye CBI Case No. 35/12 14 of 47 Chem as no books of business of Leo Dye Chem had been seized / produced. Mrs. J.V. Rasam who had conducted verification with regard to Leo Dye Chem at Mumbai had not been examined. Sh. Chirag Kotecha, author of letter, Ex.PW2/E has not been examined and specimen invoice of Leo Dye Chem was not seized. Ld. Counsel also argued that statements of PW 4 Sh Sonu Gupta and PW 5 Sh Shiv Sharan regarding non - existence of Shree Durga Carriers is not sufficient to prove the said fact as no record from civic authorities like MCD, etc. has been produced to show as to who was occupant of A-105 A, Adhyapak Nagar, Nangloi, Delhi. Similarly, testimony of PW 13 Sh. Mohan Mehto Postman is also not of any value since Dak is generally being sent through Private Couriers and a Postman hardly knows as to what business is being conducted inside any premises. He also argued that no investigation with regard to the accident of truck No. GJ 6U 6635 was carried out, despite there being photographs of the accident and complaint dt. 04-03-98 of driver Kulwant Singh in the claim file. Ld. Counsel further contends that prosecution has withheld documents and that is why neither any inventory was prepared at the time of seizure of the claim files nor the same were sealed. Therefore, prosecution cannot build its case on absence of any document in the claim file. It is further argued that the report by the Vigilance Team of NIC, Ex.PW1/A is not dt. and the covering letter vide which it was sent is also not on record. The same is also not signed by Sh. A.L. Gambhir, Member of the Vigilance Team, which goes to show that the said report is not correct. There is no evidence of any conspiracy with other accused persons. Testimony of accused No. 2 Yash Pal Babbar as DW7 regarding the procedure followed by him has gone unrebutted. During the search of his house, no incriminating material was found. Ld. counsel has also relied upon CBI Case No. 35/12 15 of 47 Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif, AIR 1968 (SC) 1413, J. Ramulu Vs. State of A.P., AIR 2008 SC 1505, P.K. Narayanan Vs. State of Kerala, 1995 (1) SCC 142, K.R. Purushothaman Vs. State of Kerala, 2005 Cri. L. J. 4648, Rita Handa Vs. CBI, 152 (2008) DLT 428, Anil Kumar Bose Vs. State of Bihar, AIR 1974 SC 1560, State (G.N.C.T) of Delhi Vs. Saqib Rahman @ Mansoori and Ors, 2012 VII AD (Delhi) 12, Ashok Narang Vs. State, 2012 II AD (Delhi) 481, Surendra Singh Vs. State of UP, 2010 Cri. L. J. 2258, Shranappa Mutyappa Halke Vs. State of Maharastra, AIR 1964 SC 1357, Surajit Sarkar Vs. State of West Bengal, AIR 2013 SC 807, C.K. Jaffer Sharief Vs. State (Through CBI), AIR 2013 SC 48, Subramanaian Swamy Vs. A. Raja, AIR 2012 SC 3336, S.V.L. Murthy Vs. State (Rep. By CBI Hyderabad) 2009 Laws (SC) 5-57, Sreedharan A. Vs. Dy. S.P. of Police, 2011 Laws (Ker) 4-117, C. Chenga Reddy and others Vs. State of Andhra Pradesh, AIR 1996 SC 3390, Sayeed MRO office Leeza Mandal Mahaboob Nagar Vs. State of A.P. through ACB, 2012 (2) ALD (Cri) 469 and V. Dilip Kumar Vs. State rep. by Dy. S.P. ACB/CBI Chennai, MANU/TN/0503/2012. The Ld. Counsel thus, submits that prosecution has failed to prove its case against the said accused.
Arguments on behalf of Accused No. 3, Ashok Kumar.
8.3 Sh. R.K. Kohli, counsel for accused No. 3 Ashok Kumar argued that the transaction of consignment of tolwin oil by Leo Dye Chem or otherwise is a matter of documentary evidence and only documents i.e. books of business of Leo Dye Chem should have been produced to prove the said fact. Mere oral testimony of PW 19 Sh H.C. Mehta is not sufficient. PW 19 Sh H.C. Mehta has neither given any books of accounts to CBI nor anybody had CBI Case No. 35/12 16 of 47 inspected the same. To disprove the invoice, Ex.PW19/A, invoices of that day should have been produced before the court. Ld. Counsel further argues that in modern day, owner of any premises is the best witness regarding occupancy thereof. However, in the present case, the owner of A-105 A, Adhyapak Nagar, Nangloi, Delhi has not been produced. Even the record in this regard from MCD has not been produced. Thus, the rule of best evidence has not been followed by the prosecution. Therefore, testimonies of PW 4 Sh Sonu Gupta and PW5 Sh Shiv Sharan regarding non-existence of Shree Durga Carriers cannot be relied upon. He further argues that postal department is only one of the means for sending dak. In commercial transactions, dak is usually sent by Private Couriers and, therefore, testimony of PW 13 Sh Mohan Mehto, Postman regarding non delivery of letter at the above address is of no value, especially in view of the fact that the IO has not visited the said address. Ld. Counsel also argues that GR is a statutory document u/s 10 of the Carriers Act. In the present case, GR, Ex. PW19/B bears truck No. and name of the driver Kulwant Singh. Sh. Kulwant Singh has also lodged a complaint dt. 04-03-1998 to PS Daruhera regarding accident of his truck. However, no investigation has been made with regard to the said accident. No effort was made to meet Sh. Kulwant Singh or the registered owner of tanker No. GJ 6U 6635 and thus, the best available evidence with regard to the accident of the truck was not collected. Ld. Counsel has also argued that there is no allegation in the complaint or the charge sheet that Santoshi Chemicals did not exist at the given address and thus prosecution cannot allege the same at a later stage. Ld. Counsel finally argues that there is no evidence, oral or documentary, regarding any conscious agreement between the accused persons for committing any illegal act. Ld counsel has CBI Case No. 35/12 17 of 47 also argued that in offences of conspiracy, though direct evidence may not be available, prosecution is still required to prove its case through circumstantial evidence. Conspiracy cannot be assumed and it cannot be based on conjectures. He argues that in the present case, there is no evidence regarding the presence of accused persons together or any communication between them to show that they had a meeting of mind or that they agreed to commit any illegal act. The prosecution has also not been able to lead any evidence to show that there was any mutual interest of the accused persons and there has been no evidence regarding trail of money after it was credited in the account of accused No. 3 Ashok Kumar. Prosecution has also not been able to show as to who was the Chief propounder of the conspiracy. He has relied upon Subramanian Swamy Vs. A. Raja (supra), Inspector of Police , Tamil Nadu Vs. John David, 2011 Cri LJ 3366, Hanuman Govind, Nargundkar and Another Vs. State of M.P., 1953 Cri LJ 129 SC, Sharad Biridhichand Sarda Vs. State of Maharashtra, 1984 Cri LJ 1738, K.R. Purushothaman Vs. State of Kerala (supra), Rabindra Kumar Dey Vs. State of Orissa, 1977 AIR 170, S.L. Goswami Vs. State of Madhya Pradesh, 1972 AIR 716, R. Venkatakrishnan Vs. Central Bureau of Investigation, Criminal Appeal No. 76 of 2004 and State of Tamil Nadu through Superintendent of Police, CBI/SIT Vs. Nalini and 25 others, decided on 11-05-1999, in this regard. He finally submits that the prosecution has failed to prove its case against the said accused. Arguments on behalf of Accused No. 4, Arvind Kumar Sharma.
8.4 Sh. R.K. Kohli, counsel for accused No. 4 Arvind Kumar Sharma has argued that the said accused is not denying the documents i.e. the CBI Case No. 35/12 18 of 47 report, dt. 30-03-1998, submitted by him in his own name. Thus, the said report is not a false document. He has relied upon Md. Ibrahim & Ors. Vs. State of Bihar & Anr., 2010 Cri LJ 2223, C. Parthasarthy Vs. Bulls and Bears (Stock Brokers) Ltd., Criminal M.C. No. 4200/2002, decided on 04-01-2013 and A.S. Krishnan And Anr. Vs. State of Kerala, Appeal (Crl.) 916 of 1997, decided on 17-03-2004, to argue that since accused No. 4 Arvind Kumar Sharma has not made or executed any document claiming to be someone else or authorized by someone else, he cannot be said to have committed forgery. Ld. Counsel further argues that the report of accused No. 4 Arvind Kumar Sharma is based on inputs given by his employee. Thus, even if contents of the said report are wrong, the said accused has no knowledge of the same and he cannot be considered dishonest or fraudulent. He also argued that CBI did not ask accused No. 4 Arvind Kumar Sharma, who was the representative who went for investigation. Had they so asked him, he would have disclosed the same and truth could have surfaced. Ld counsel also submits that his arguments for accused No. 3 Ashok Kumar with respect to conspiracy may also be considered for accused No. 4 Arvind Kumar Sharma. He thus submits that prosecution has failed to prove its case against the said accused.
Arguments on behalf of Accused No. 5, Pramod Kumar Gupta. 8.5 Sh. H.S. Sharma, counsel for accused No. 5 Pramod Kumar Gupta has argued that role of the said accused was limited to conducting survey at the site of accident of truck No. GJ 6U 6635 at Dharuhera. However, no investigation was conducted by NIC or CBI with regard to the said accident despite the fact that he has filed photographs of the accidental truck along with his report and the complaint dt. 04-03-1998 of driver Kulwant Singh was CBI Case No. 35/12 19 of 47 also on record. He further argues that as surveyor, it was not his duty to verify the documents produced by the claimant and thus, no fault can be found with his report. There is no evidence of his entering into criminal conspiracy with any accused person. Thus he may be acquitted.
Arguments on behalf of Accused No. 6, Ramesh Khaneja. 8.6 Sh. Bhola Singh, counsel from DLSA, for accused No. 6 Ramesh Khaneja has contended that the only allegation against the said accused is that he has not effected recovery from Shree Durga Carriers and that Shree Durga Carriers was not existing at their given address i.e A-105 A, Adhyapak Nagar, Nangloi, Delhi. He argues that neither the Vigilance Officers nor the CBI has visited the said address. No inquiry was made by them from him to clarify the position. Testimonies of PW 4 Sh Sonu Gupta and PW 5 Sh Shiv Sharan cannot be relied upon because everybody cannot be expected to know all the inhabitants or business establishments in his locality. He further argues that no record is kept in the Post Office as to where the Dak is delivered and, therefore, the oral evidence of PW 13 Sh Mohan Mehto is not of any value. The prosecution has, thus, failed to prove its case against accused No. 6 Ramesh Khaneja.
8.7 The general propositions of law laid down in the judgments cited by the parties have not been disputed.
Points for Determination.
9.1 I have heard all the parties and have also perused the record. In the instant case as per the charges framed, the following points are required to be determined:-
CBI Case No. 35/12 20 of 47 A. Charge u/s 120-B r/w Section 420, 467, 468, 471 IPC & Section 13 (2) r/w Section 13 (1) (d) of the PC Act against all the accused persons namely accused No. 1, Moti Lal Mathur, accused No. 2, Yash Pal Babbar, accused No. 3, Ashok Kumar, accused No. 4, Arvind Kumar Sharma, accused No. 5, Pramod Kumar Gupta and accused No. 6, Ramesh Khaneja.
i. Whether during the year 1998-99, at New Delhi and other places, all the accused persons namely accused No. 1, Moti Lal Mathur, accused No. 2, Yash Pal. Babbar, accused No. 3, Ashok Kumar, accused No. 4, Arvind Kumar Sharma, accused No. 5, Pramod Kumar Gupta and accused No. 6, Ramesh Khaneja entered into an agreement?
ii. If so, whether they had agreed to cheat NIC, DO- XIII, New Delhi by fraudulently inducing it to sanction insurance claim in the name of Santoshi Chemicals, New Delhi under the proprietorship of accused No. 3, Ashok Kumar, to the extent of Rs.1,77,948/- on the basis of forged/bogus/false documents and by using as genuine such documents and by commission of criminal misconduct by public servants i.e. accused No. 1, Moti Lal Mathur and accused No. 2, Yash Pal Babbar?
iii. If so, whether in pursuance of the said agreement, accused No. 3, Ashok Kumar obtained marine policy No. 4500436 for Rs.2,60,000/- for dispatch of tolwin oil from Leo Dye Chem, Mumbai to Santoshi Chemicals, Nangloi, Delhi and falsely reported a leakage of tolwin oil and accused No. 1, Moti Lal Mathur, Administrative Officer appointed accused No. 5, Pramod Kumar Gupta for survey and the said accused No. 5 Pramod Kumar Gupta submitted a false survey report and accused No. 3, Ashok Kumar submitted claim form for insurance claim on behalf of Santoshi Chemicals and accused CBI Case No. 35/12 21 of 47 No. 1, Moti Lal Mathur recommended the claim amount and accused No. 2, Yash Pal Babbar approved the claim amount in favour of Santoshi Chemicals on the basis of false/bogus/forged documents and accused No. 4, Arvind Kumar Sharma of Pooja International submitted false investigation report and accused No. 6, Ramesh Khaneja of Globe Claims Recovery Consultants deposited a manipulated recovery amount of Rs.9050/- at the behest of accused No. 3, Ashok Kumar and the said Ashok Kumar received cheque of claim amount of Rs.1,77,948/- and deposited the same in A/c of Santoshi Chemicals?
B. Charge u/s 13 (2) r/w section 13 (1) (d) of the PC Act against accused No. 1, Moti Lal Mathur.
(i) Whether during the period 1998-99, accused No. 1, Moti Lal Mathur was a public servant i.e. Administrative Officer, NIC, DO -XIII, New Delhi?
(ii) If so, whether during the above period at Delhi and other places, accused No. 1, Moti Lal Mathur obtained pecuniary advantage to the tune of Rs. 1,77,948/- for accused No. 3, Ashok Kumar of Santoshi Chemicals and caused corresponding loss to the NIC by inducing and recommending the claim proposal on the basis of false/forged/bogus documents for grant of above claim which was sanctioned on his recommendation?
(iii) If so, whether accused No. 1, Moti Lal Mathur did as above by use of illegal means and abuse of his official position?
C. Charge u/s 13 (2) r/w section 13 (1) (d) of the PC Act against accused No. 2, Yash Pal Babbar.
(i) Whether during the period 1998-99, accused No. 2, Yash Pal Babbar was a CBI Case No. 35/12 22 of 47 public servant i.e. Assistant Manager, NIC, DO-XIII, New Delhi?
(ii) If so, whether during the above period at Delhi and other places, accused No. 2, Yash Pal Babbar obtained pecuniary advantage to the tune of Rs. 1,77,948/- for accused No. 3, Ashok Kumar of Santoshi Chemicals and caused corresponding loss to the NIC by sanctioning the above claim amount on the basis of false/forged/bogus documents?
(iii) If so, whether accused No. 2, Yash Pal Babbar did as above by use of illegal means and abuse of his official position?
D. Charge u/s 420 IPC against accused No. 3, Ashok Kumar.
(i) Whether during the period 1998-99 at Delhi and other places, accused No. 3, Ashok Kumar deceived NIC, DO -XIII, New Delhi?
(ii) If so, whether accused No. 3, Ashok Kumar induced NIC, DO -XIII, New Delhi to sanction insurance claim of Rs.1,77,948/- in favour of Santoshi Chemicals on the basis of false/bogus/forged documents i.e. Invoice, GR, survey report, etc. ?
(iii) If so, whether accused No.3, Ashok Kumar had induced NIC, DO -XIII, New Delhi as above dishonestly?
(iv) If so, whether accused No. 3, Ashok Kumar received the cheque of claimed amount which was credited in account No. 4995 of Santoshi Chemicals of which he was the Proprietor?
E. Charge u/s 471 r/w section 467 & 468 IPC against accused No. 3, Ashok Kumar.
(i) Whether during the period 1998-99, at Delhi and other places, accused No. 3, Ashok Kumar used false/forged/bogus documents i.e. invoice, GR, Survey CBI Case No. 35/12 23 of 47 Report etc., as genuine for inducing NIC, DO -XIII, New Delhi to sanction insurance claim of Rs.1,77,948/- in favour of Santoshi Chemicals, of which he was the Proprietor?
(ii) If so, whether he had used the aforesaid documents as genuine knowing or having reason to believe the same to be forged?
(iii) If so, whether he did so fraudulently or dishonestly?
F. Charge u/s 468 IPC against accused No. 4, Arvind Kumar Sharma.
(i) Whether during the period 1998, at Delhi and other places, accused No. 4, Arvind Sharma, being Proprietor of Pooja International, was appointed as investigator, in the claim of Santoshi Chemicals?
(ii) If so, whether accused No. 4, Arvind Kumar Sharma committed forgery by submitting a bogus report to NIC, DO-XIII, New Delhi without investigating the matter?
(iii) If so, whether accused No. 4, Arvind Kumar Sharma intended that the aforesaid document i.e. bogus report shall be used for the purpose of cheating NIC?
G. Charge u/s 468 IPC against accused No. 5, Pramod Kumar Gupta.
(i) Whether during the period 1998, at Delhi and other places, accused No. 5, Pramod Kumar Gupta, being Proprietor of P Gupta & Company, was appointed as Surveyor, in the claim of Santoshi Chemicals?
(ii) If so, whether accused No. 5, Pramod Kumar Gupta committed forgery by submitting a bogus report to NIC, DO-XIII, New Delhi without carrying out the survey?
CBI Case No. 35/12 24 of 47
(iii) If so, whether accused No. 5, Pramod Kumar Gupta intended that the aforesaid document i.e. bogus survey report shall be used for the purpose of cheating NIC?
H. Charge u/s 467 IPC against accused No. 6, Ramesh Khaneja.
(i) Whether during the period 1998 at Delhi and other places, accused No. 6, Ramesh Khaneja, being Proprietor of Globe Claim Recovery consultant was appointed as Recovery Agent in the claim of Santoshi Chemicals?
(ii) If so, whether accused No. 6, Ramesh Khaneja forged a document i.e. false bill of Rs.1,337/- as his fee for recovery of Rs.9,050/-, which he had deposited as recovery amount without recovering the same and on the behest of accused No. 3, Ashok Kumar of Santoshi Chemicals?
10.1 It is pertinent to refer to Sec. 3 of the Indian Evidence Act, 1872 (hereinafter called as 'IEA') which defines the term 'proved' and d' isproved' as under :-
" ' Proved'- A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists"
" ' Disproved'- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist."
10.2 It is well settled that the word 'proof' means anything which serves, either immediately or mediately to convince the mind of the truth or falsehood of a fact or proposition; and the proofs of matters of fact in general are our senses, the testimony of witnesses, documents and the like. " Proof"
CBI Case No. 35/12 25 of 47 does not mean proof to rigid mathematical demonstration, because that is impossible; it means such evidence as would induce a reasonable man to come to the conclusion (vide Emperor v/s Shafi Ahmed, (1925) 31 Bom. LR 515]. Further, Sec. 134 of IEA stipulates that no particular number of witnesses shall in any case be required for the proof of any fact.
10.3 In human affairs, everything cannot be proved with mathematical certainty and the law does not require it. Legal proof is something different from moral certainty about the guilt of an accused person. Suspicion, however, great, cannot take the place of legal proof. A moral conviction, however strong or genuine, cannot amount to a legal conviction supportable in law. The well known rule of criminal justice is that " fouler the crim e, higher the proof." [ vide Sharad Birdhichand v. State of Maharashtra, (surpa)].
10.4 In criminal matters, the prosecution is required to prove its case beyond a reasonable doubt. A benefit of doubt is the condition of the mind which exists where the judges cannot say that they feel an abiding condition, a moral certainty of the truth of the charge. It must not be a mere doubt of a vacillating mind that has not the moral courage to decide upon a difficult and complicated question and therefore, takes shelter in an idle scepticism (vide 1977 CrLJ 59) 10.5 It is well settled that the burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.
10.6 However, the rule in section 106 of the Act would apply when the facts are 'especially within the knowledge of the accused' and it would be impossible or at any rate disproportionately difficult for the prosecution to CBI Case No. 35/12 26 of 47 establish such facts which are 'especially within the knowledge of the accused'. The prosecution is not required to eliminate all possible defences or circumstances which may exonerate him. If certain facts are in the knowledge of the accused then he has to prove them. Of course the prosecution has to prove prima facie case in the first instance. In this regard reference can be made to Murlidhar v. State of Rajasthan, AIR 2005 SC 2345, State of Punjab v. Karnail Singh, (2003) 11 SCC 271, Trimukh Maroti Kirkan v. State of Maharashtra, 2007 Cr LJ 20 (SC), Santosh Kumar Singh v. State, (2010) 9 SCC 747 and Ram Singh v. State, 2011 Cr LJ 618 (Raj.), AIR 1959 SC 1390, AIR 1937 Rang 83, 1968 Cri LJ 848, AIR 1967 Mys 79 and 1964 (1) Cri LJ 688.
10. 7 Criminal conspiracy is often hatched in secrecy and for proving the offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence. However, it cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence. Where the prosecution case rests merely on circumstantial evidence, the facts established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. However, on the basis of evidence led by prosecution, if two views are possible, one pointing to the guilt of the accused and other to his innocence, the one in favour of the accused must be accepted. In this regard, reference can be made to Saju Vs. State of Kerala, (2001) 1 SCC 378, Sherimon Vs. State of Kerala, (2011) 10 SCC 768, P.K. Narayanan Vs. State of Kerala, (1995) 1 SCC 142, State of M.P. V CBI Case No. 35/12 27 of 47 Sheetla Sahai, 2009, Cr. LJ 4436, Shivaji Saheb Rao Bobde v. State of Maharashtra, AIR 1973 SC 2622, Harendra Narain Singh v. State of Bihar, AIR 1991 SC 1842 and Baboo Ram, v. State, 1996 Cri LJ 483.
10.8 The essence of conspiracy is unlawful combination and the complicity of the accused has to be decided after considering all the circumstances proved, before, during and after occurrence. Agreement between the conspirators may also be proved by necessary implication. It is not necessary that each member of a conspiracy must know all the details of the conspiracy. Facts established should be consistent only with the hypothesis of guilt of the accused. It does not mean that each and every hypothesis suggested by accused must be excluded by proved facts. In this regard reference can be made to Chaman Lal Vs. State of Punjab, AIR 2009 SC 2972, R.K. Dalmia V The Delhi Administration, AIR 1962 SC 1821, Muriappan Vs. State of Tamil Nadu, AIR 2010 SC 3718 and Firozuddin Basheeruddin Vs. State of Kerala, (2001) 7 SCC 596.
10.9 It is also pertinent to refer to Sec 313 (4) of the Cr.P.C. which stipulates that the answers given by the accused, in his statement under this section, may be taken into consideration in such enquiry or trial, and put in evidence for or against him in any other enquiry into, or trial for, any other offence which such answers may tend to show he has committed. It is well settled that admission or confession of the accused in the statement under section 313, Cr PC in the course of trial can be acted upon and the court can rely on these confessions to proceed to convict him. In this regard reference can be made to Dharnidhar v. State of Uttar Pradesh, (2010) 7 SCC 759 and State of Maharashtra v. Sukhdev Singh, AIR 1992 SC 2100.
CBI Case No. 35/12 28 of 47
10.10 It is also well settled that evidence of one accused or admission
or action or statement made by one of the accused can be used as evidence against the other by virtue of Section 10 of the Indian Evidence Act. In this regard reference can be made to Tribhuvan Nath Vs. State of Maharashtra, AIR 1973 SC 450 and Kehar Singh v State, AIR 1988 SC 1883. 10.11 Both the parties have relied upon Claims Procedural Manual, which was admittedly applicable at the relevant time. The said manual, while laying down the procedure for processing and settlement of marine claims provides that the procedures laid down in the Manual are not exhaustive and are of general nature. It further provides that in some cases, the requirements laid down in the Manual could not be in practice complied with due to particular circumstances applicable to the individual case and such non compliance should not therefore, make the claim as not payable and the claim settling authority is to use his discretion by recording his reasons in detail. 10.12 It is in the light of the above position of law that evidence is to be appreciated.
Facts Not in Dispute 11.1 From the evidence and other material on record and arguments advanced by the parties, there appears to be no dispute about the following facts :-
(a) Accused No.1 Moti Lal Mathur was a public servant i.e Administrative Officer, NIC, DO-XIII, New Delhi,
(b) Accused No. 2 Yash Pal Babbar was a public servant i.e. Assistant Manager, NIC. DO-XIII, New Delhi,
(c) Accused No. 3 Ashok Kumar obtained policy No. 4500436, Ex.PW6/H on 26-02-1998 for dispatch of tolwin oil from Leo Dye Chem, B/136, CBI Case No. 35/12 29 of 47 Ghatkopar Industrial Estate, LBS Marg, Ghatkopar (W),Mumbai to Santoshi Chemicals, E-3/7, Shiv Ram Park, Nangloi, Delhi-41,
(d) Accused No. 3 Ashok Kumar reported claim due to leakage vide letter dt. 04-03-98, Ex.PW6/L,
(e) Accused No. 1 Moti Lal Mathur appointed accused No. 5 Pramod Kumar Gupta of P. Gupta & Co. for survey,
(f) Accused no. 5 Pramod Kumar Gupta submitted his report on 16-03-98, which was received by accused No. 1 on 27-03-98,
(g) Accused No. 4 Arvind Kumar Sharma of Pooja International was appointed as Investigator,
(h) Accused No.4 Arvind Kumar Sharma submitted report dt. 30-03-98,
(i) Pooja International raised bill dt. 01-04-98, Ex.PW6/F for Rs.5,000/-,
(j) An amount of Rs.5,000/- was paid to Pooja International vide disbursement voucher dt. 31-03-98,
(k) The claim was processed by Sh. Anupam Gupta, Assistant, recommended by accused No. 1 Moti Lal Mathur for Rs.1,77,948/- and sanctioned by accused No. 1 on 31-03-98,
(l) Claim amount of Rs.1,77,948/- was paid to accused No. 3 Ashok Kumar vide cheque No. 599521 dt. 31-03-98, Ex.PW6/M and the proceeds thereof were credited into current account No. 4995 of the insured ,
(m) Accused No. 6 Ramesh Khaneja of Globe Claims Recovery Consultant was appointed as Recovery Agent,
(n) An amount of Rs.9,050/- was deposited purportedly as recovery amount vide pay order No. 753782, dt. 24-07-98 as per Receipt dt. 14-08-98, Ex.PW6/E, and
(o) An amount of Rs.1,337/- was paid as recovery fee vide cheque No. CBI Case No. 35/12 30 of 47 244928, dt. 09-10-98 of Indian Overseas Bank, as per disbursement voucher, Ex.PW6/C. Facts in Dispute.
12.1 However, the following facts are in dispute:-
a) Leo Dye Chem had not sent any dispatch of tolwin oil to the insured Santoshi Chemicals and the invoice, Ex. 19/A, purportedly of Leo Dye Chem is forged,
b) Shree Durga Carriers did not exist at its given address i.e. A-105, Adhyapak Nagar, Nangloi, Delhi and GR, Ex. PW19/B, purportedly of Shree Durga Carriers is forged,
c) Survey report, dt. 16-3-98 submitted by accused No. 5 Pramod Kumar Gupta of P. Gupta & Co. is false,
d) Report dt. 30-03-1998 of Pooja International, of which accused No. 4 Arvind Kumar Sharma is Proprietor is false,
e) Globe Claims Recovery Consultants of which accused No. 6 Ramesh Khaneja is Proprietor had not made any recovery from Shree Durga Carriers, Appreciation of Evidence
13.1 The main fact in issue in this case is whether there was any loss of consignment of tolwin oil purportedly sent by Leo Dye Chem., Mumbai to Santoshi Chemicals, New Delhi through Shree Durga Carriers, Delhi as covered by the insurance policy. The essential parts/components of purported loss of consigment are existence of Leo Dye Chem., Mumbai, existence of Santoshi Chemicals, New Delhi existence of Shree Durga Carriers, Delhi, sending of consignment of tolwin oil and loss/damage to the said consignment. If any of the above part/component of the transaction in question is disproved, it would, by necessary implication, follow that there was CBI Case No. 35/12 31 of 47 no loss of consignment and that the claim amount has been fraudulently obtained.
13.2 Prosecution has led evidence and Ld. PP has advanced argument to the effect that complete documents required for processing and settlement of claim are not available in the claim file which shows that the claim has been fraudulently obtained. Ld. Defence counsels contend that the complete chain of handing over of record has not been proved and thus absence of any document in the claim file is of no relevenace. It is pertinent to note that the claim files were the record of DO-XIII, NIC. The officer of DO- XIII from whose custody, the said files were seized for the first time has not been examined by the prosecution to prove that complete record, as available at the time of sanction of claim, was seized. Further, no inventory of the documents available in the claim files was prepared, and the record seized was also not sealed either at the time of their seizure by the officers of Regional Office of NIC or by the IO. Thus, no sanctity of preservation of documents seized was maintained. Therefore, the above contention of Ld. PP is not tenable. In this regard, a reference can also be made to the judgment dated 28-05-2013 of the Hon'ble High Court of Delhi in Crl. Appeal No.1455/2012, Anil Maheshwari v/s CBI.
No Consignment sent 13.3 To prove that no consignment was sent by Leo Dye Chem, the best witness i.e. the proprietor of the said firm, PW 19 Sh H.C. Mehta has been examined by the prosecution. He testified that earlier he was doing business in the name and style of Leo Dye Chem as a proprietor at B-126, Ghatkopar Industrial Estate, Ghatkopar West, Mumbai. In December, 2000, he CBI Case No. 35/12 32 of 47 closed the above proprietorship concern and started a Private Limited Company in the name of Leo Chemo Plast Private Company at the same address. He has proved the letter dt. 5-4-1999, Ex. PW2/E, signed by their Manager Sh. Chirag Kotecha and given by them to NIC, vide which it was informed that invoice No. 5499 dt. 23-09-1997 and invoice 5547 dt. 27-02-1998 in the name of Santoshi Chemicals do not belong to them. He further deposed that invoice No. 5547 dt. 27-02-1998, Ex. PW 19/A, in the claim file of Santoshi Chemicals do not belong to them. This invoice pertain to t' olwin' and that they have never dealt with t' olwin' or 'toluene.' He also does not know Shree Durga Carriers as mentioned in the above invoice and they had never dealt with any such firm. After seeing the Lorry Receipt dt. 27-02-1998, Ex. PW 19/B of Shree Durga Carriers, he testified that they had never sent any goods through Shree Durga Carriers at any point of time to Santoshi Chemicals. He further stated that all the business transactions in his earlier proprietorship as well as in the Private Limited Company were/are conducted by him. The testimony of this witness has gone unimpeached. Nothing material could be elicited during his cross examination by the accused persons. He denied the suggestion that goods as per invoice, Ex. PW 19/A were sent through Shree Durga Carriers to Santoshi Chemicals. 13.4 Ld defence counsels have argued that books of accounts of Leo Dye Chem have not been produced to prove that no consignment was sent. On the other hand ld P.P contends that testimony of PW 19 Sh H.C. Mehta is sufficient to prove the said fact. It is considered that to prove the non existence of any transaction, in this case consignment of goods by PW 19 Sh H.C. Mehta, the testimony of the person who purportedly sent the consignment is sufficient. No document is required to prove the same. As per CBI Case No. 35/12 33 of 47 Section 59 of the IEA, all facts, except the contents of documents, may be proved by oral evidence. However, forgery of a document need not be proved by any other document. In such a case evidence of purported author/owner of document is sufficient. No suggestion has been put to PW 19 Sh H.C. Mehta regarding any communication made by accused no.3 Ashok Kumar with any representative of Leo Dye Chem or about any payment made or agreed to be made for the purchase of t' olwin' oil by him. Any such business transaction, if it existed, could not have taken place without any interaction between the parties regarding purchase of goods and payment thereof. No cogent reason has been given by the accused persons as to why PW 19 Sh H.C. Mehta would depose falsely. There is no reason to disbelieve him. His testimony is natural and believeworthy. Thus, it is considered that the prosecution has been able to prove that Leo Dye Chem had not sent any consignment of tolwin oil to Santoshi Chemicals and the invoice, Ex. PW 19/A is forged. Non Existence of Shree Durga Carriers.
13.5 It is pertinent to note that as per GR, Ex. PW 19/B, the address of Shree Durga Carriers is " A-105 Adhyapak Nagar, Nangloi, Delhi". PW 4, Sh Sonu Gupta who was running the business of Property dealing/Building Material Supplier at A-86, Adhyapak Nagar, Nangloi, Delhi deposed that 105- A is adjacent to his office. There is no transport company in the name of Durga Carriers at A- 105 A Adhyapak Nagar, Nangloi during 1985 till date. He had sold maximum property in Adhyapak Nagar and that plot no. 105-A belong to Sh. Kochar. His deposition has gone unrebutted. He has denied the only suggestion given on behalf of accused no 3 Ashok Kumar that he was deposing falsely. No other cross examination had been done by any accused.
13.6 Similarly PW 5 Sh Shiv Saran, a resident of A-96, Adhyapak
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Nagar, Nangloi, Delhi stated that house no 105-A was adjacent to his house. He never saw any office/working place of the firm Shree Durga Carriers(Transport) at 105-A, Adhyapak Nagar, Nangloi, Delhi till date. He further deposed that Plot No. 105-A, Adhyapak Nagar was earlier owned by one Praveen Kochar and now it seems to have been sold 5/6 years back to some other person. His deposition has also gone unrebutted. He has denied the only suggestion given on behalf of accused no 3 Ashok Kumar that he was deposing falsely. No other cross examination had been done by any accused.
13.7 PW 13, Sh Mohan Mehto who worked as postman from the year 1992 till 2004 in Nangloi and used to distribute dak in Adhyapak Nagar area testified that as per his knowledge, there was no company in the name of Shree Durga Carriers at 105-A, Adhyapak Nagar, Nangloi, Delhi, he had not distributed dak to the said company and it was a residential house. In his cross examination, it came out that when he was on leave or in work exigencies, other postmen were deputed to his beat or delivered the dak at the above address, he had stated that the premises were being used for residential or commercial purposes by the fact that there used to be sign board in the premises used for commercial purposes and that he never used to enter the premises to find out if they were residence or business set up. The deposition of PW 13 Sh Mohan Mehto has also gone by and large unimpeached.
13.8 It is pertinent to mention that as per the purported Goods Receipt dt. 27-2-98, Ex. PW 19/B and certificate dt. 10-3-98, placed at page 12 of the Claim file, Ex.PW 2/A, the Head Office of Shree Durga Carriers is shown at A 105-A, Adhyapak Nagar, Nangloi, Delhi, with branches at Calcutta, CBI Case No. 35/12 35 of 47 Mumbai and Ranchi. Such a firm, if it existed, in the normal course of business and human affairs, would have been known to the neighbours or the concerned postman. According to PW 4 Sh Sonu Gupta, PW 5 Sh Shiv Saran and PW 13 Sh Mohan Mehto, no such transporter existed at the given address. PW 4 Sh. Sonu Gupta and PW 5 Sh. Shiv Sharan, who are neighbours of A-105 A, Adhyapak Nagar, Nangloi, Delhi, have categorically stated that there was no transport company in the name of Durga Carriers at A 105-A, Adhyapak Nagar, Nangloi, Delhi. No suggestion has been given to PW 4 Sh Sonu Gupta or PW 5 Sh Shiv Saran by accused no 3 Ashok Kumar regarding the owner or the manger or any representative of Shree Durga Carriers, with whom he would had interacted or regarding other details of the said transport company. From the above evidence and the fact, as discussed later, that no recovery was made from Shree Durga Carriers, it appears that Shree Durga Carriers did not exist at its given address i.e. A-105, Adhyapak Nagar, Nangloi, Delhi. In any case, no consignment was sent by Leo Dye Chem to Santoshi Chemicals through any such transporter. 13.9 The depositions of DW 1 Sh. Bodh Ram, DW 2 Sh. Yuvraj and DW 3 Sh. Virender Kochar is of no help to the accused persons since these do not prove that any consigment as covered by the policy in question was actually sent.
Survey Report 13.10 The surveyor, accused no.5 Pramod Kumar Gupta was required to assess the loss in respect of purported consignment of t' olwin' oil from Leo Dye Chem, Mumbai to Santoshi Chemicals transported through Shree Durga Carriers. The survey report dt. 16-3-98, placed at pages 5 to 8 of the claim file, Ex.PW 2/A, submitted by accused no. 5, Pramod Kumar Gupta, CBI Case No. 35/12 36 of 47 refers to invoice no. 5547 dt. 27-2-98, Ex. PW 19/A and Lorry Receipt no.2267 dt. 27-2-98, Ex. PW 19/B. Thus he was fully aware of the consignor, the consignee and the transporter and was thus required to make survey with respect to the purported consignment in question. As per this report, truck no. GJ 6U 6635 carrying the above consignment, consisting of 10 MT tolwin, met with an accident at Dharuhera and the loss was assessed as 6,748 Kgs. Once it has been proved that no consignment as covered in the policy was sent and the transporter Shree Durga Carriers did not exist, the report with regard to the purported consignment has to be, by necessary implications, false. There appears to be no connection between truck no. GJ 6U 6635 and Leo Dye Chem or the consignment in question. The prosecution having discharged its initial burden of proving that no such consignment was sent, it was for the accused persons to prove the affirmative, as asserted by them. No evidence in this regard has been led by the accused persons. Ergo, it is considered that the prosecution has been able to prove that accused no.5 Pramod Kumar Gupta has given a false report.
Verification Report 13.11 Pooja International, of which accused no. 4 Arvind Kumar Sharma is the proprietor, was appointed as verifier to verify the facts and the documents in this case. Vide report dt. 30-3-98, placed at pages 21 and 22 of the claim file, Ex. PW 2/A, it is reported that their representative met the consignee who confirmed the details of the accident and the invoice no. 5547 dt. 27-2-98 and GR no. 2265 dt. 27-2-98. It is further reported that their representative met Mr. Rajinder Kumar and Mr. Gupta of Shree Durga Carriers at A 105-A, Adhyapak Nagar, Nangloi, Delhi and checked GR no.2265 dt. 27-2-98. The report gives the details of the accident and the insurance of the CBI Case No. 35/12 37 of 47 said tanker. Finally it was opined that the insured incurred a loss of 6748 Kgs. In his statement u/s 313 Cr.P.C., accused No. 4 Arvind Kumar Sharma stated that the reports submitted by him was on the basis of information given to him by his employee. The verifier's fee claimed by Pooja International vide their bill Ex. PW 6/F and paid to them vide Claim Disbursement Voucher, placed at page 28 of the claim file, Ex. PW 2/A is also not disputed. Any enquiry from Leo Dye Chem, would have made it clear that the invoice Ex.PW 19/A was forged. Since it has been established that no consignment in question was sent by Leo Dye Chem and Shree Durga Carriers apparently did not exist, the above report dt. 30-3-98 is also, by necessary implication, false. Accused No. 4 Arvind Kumar Sharma has thus given false report dt. 30-03-98. No Recovery from the Transporter 13.12 Globe Claims Recovery Consultants has deposited Rs.9,050/- purportedly as recovery amount vide Ex. PW 6/E. This document is not disputed. As per Ex. PW 6/E, the said amount has been received from Santoshi Chemicals and not from the transporter. It has been argued on behalf of accused No. 1 Moti Lal Mathur and accused No. 2 Yash Pal Babbar that " Santoshi Chemicals" had been wrongly typed by the accounts deptt. in the above receipt. The said argument does not hold any water since the receipt is signed by accused no.1 Moti Lal Mathur himself. Though accused No. 6 Ramesh Khaneja, in his deposition as DW 4 stated that he has made recovery from Shree Durga Carriers and submitted cheque of the recovery amount to accused No. 1 Moti Lal Mathur, he has not given any details regarding the person from whom he made the recovery, the place or the date when he made the recovery. During his cross-examination, he stated that he does not remember the name of the transporter whom he met for making the CBI Case No. 35/12 38 of 47 recovery or the address of Shree Durga Carriers. His statement regarding making recovery from the transporter is quite vague and makes no dent in the prosecution version. In view of the above and the fact that no consignment of t' olwin' was sent by Leo Dye Chem, Mumbai to Santoshi Chemicals, Delhi and Shree Durga Carriers apparentely did not exist at their given address, it is clear that Globe Claims Recovery Consultants did not make any recovery from any Shree Durga Carriers. Ergo, the bill for Rs. 1407/- raised by accused no. 6 Ramesh Khaneja vide Ex. PW 6/D was false and he was not entitled to the payment of the same.
13.13 It is also relevant to note that as per Receipt dt. 14-8-98, Ex.PW 6/E, signed by accused no.1 Moti Lal Mathur, a sum of Rs. 9,050/- has been deposited as recovery amount, though the same was deposited by Santoshi Chemicals and was not recovered from the transporter i.e. Shree Durga Carriers. Consequent to such deposit Globe Claims Recovery Consultants has claimed recovery fee of Rs. 1407/- vide their bill dt. 14-8-98, Ex.PW 6/D. The said bill was recommended by accused no.1 Moti Lal Mathur at point A ' ' and approved by accused no 2 Yash Pal Babbar at point B ' ' on Ex.PW 6/D. This shows the complicity of the said two accused persons, who knowing fully well that no amount has been recovered from the purported transporter i.e. Shree Durga Carriers but that it was in fact deposited by Santoshi Chemicals, recommended and approved the recovery fee.
13.14 It is also pertinent to mention that accused No. 4 Arvind Kumar Sharma of Pooja International raised bill dt. 01-04-98, Ex.PW6/F for verification fee. However, the same had been approved on 31-03-98 by CBI Case No. 35/12 39 of 47 accused No. 2 Yash Pal Babbar. Ex.PW6/F also bears signatures of accused No. 1 Moti Lal Mathur with date 31-03-98. Payment of verification fee had been made to Pooja International vide Claim Disbursement Voucher placed at page No. 28 of the claim file, Ex.PW2/A. There is no explanation from the accused as to how the bill raised on 01-04-98 had been passed on 31-03-98. This only goes to show that the actual processing of claim did not take place in a straight manner and that accused No. 1 Moti Lal Mathur and accused No. 2 Yash Pal Babbar were involved in conspiracy with other accused persons. Further, the argument by the said accused persons that they were not required to interact with the surveyor/verifier/claimant is belied by the Claims Procedural Manual, Ex. DW 5/C, relied upon by them and proved by their own witness DW 5 Ms Yamini Luthra. Para 3.12 of the said manual stipulates that dealing office should keep in touch with the surveyors throughout. If the same was followed and active interaction was maintained by accused no. 1 Moti Lal Mathur and accused No. 2 Yash Pal Babbar with the surveyor/verifier/claimant, as in the normal course of human affairs a diligent person is required to do, and if the said accused persons were not party to the conspiracy, the fraud could not have taken place.
13.15 The depositions of DW 7 Yash Pal Bababr and DW 8 Moti Lal Mathur regarding their following rules and regulations of NIC and relying upon the processing of their subordinates as well as reports of surveyors/verifiers/recovery agents etc. and that they had no interaction with the claimant or the surveyor/verifier/recovery agent does not inspire confidence in view of the evidence led by the prosecution. The acts of commissions and omissions of all the accused persons are so inextricable that these could not have been done independently of each other. There had CBI Case No. 35/12 40 of 47 to be meeting of mind of the accused persons to commit the said acts. From the cirucmstances brought on record, it is clear that accused No. 1 Moti Lal Mathur and accused No. 2 Yash Pal Babbar have used illegal means and abused their official positions for obtaining pecuniary advantage for accused No. 3 Ashok Kumar.
14.1 The argument of Sh Umesh Sinha ld counsel for accused No.2 Yash Pal Babbar that there has been a delay in registration of FIR does not hold any water. The case is of cheating and forgery. Unlike offences involving use of criminal force, offences involving cheating and forgery etc may not be detected immediately on commission. Generally, it is only after scrutiny of documents and enquiry that such offences are detected. Ld counsel has not explained as to how there was any undue delay in registration of FIR or how it was fatal to the case? He has also not shown any law which, in the facts of this case, would bar filing of more than one charge sheets in one FIR or would vitiate trial on the ground that FIR has been registered without conducting preliminary enquiry. Thus, his contention in this regard is also not tenable. 14.2 It has been argued by Sh. R.K. Kohli, counsel for accused No. 4 Arvind Kumar Sharma that verification report dt. 30-03-98 has been filed by Pooja International. It is not the case of prosecution that the said accused claimed it to be made or executed by some other person or by authority of some other person by whom or by whose authority it was not made. Thus, it is not a false document in terms of Section 464 IPC and, therefore, no forgery has been committed in respect of the said document. He has relied upon Md. Ibrahim & Ors. v/s State of Bihar and Anr. 2010 Cri LJ 2223 in ths regard. The same argument applies to the Survey Report, dt. 16-03-98 and recovery fee bill dt. 14-08-98, Ex.PW6/D. Ld. P.P. has argued that even though these CBI Case No. 35/12 41 of 47 three documents have been made or executed by the accused persons in their own name, since their contents are false, the documents would fall within the category of forged documents. He has referred to illustration (h) to section 464 IPC in support of his contention. It is considered that the above illustration does not apply to facts of this case.
14.3 In this regard, it may be noted that sections 467 & 468 are aggravated forms of the offence of forgery. Section 463 IPC defines 'forgery' as "463. Forgery. - Whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
Further Section 464 IPC defines 'false document' as "464. Making a false document. - A person is said to make a false document or false electronic record -
First - Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a documents or part of the document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly - who dishonestly or fraudulently causes any person to sign, seal, CBI Case No. 35/12 42 of 47 execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration." (emphasis supplied).
14.4 A person can be said to have made a 'false document' if (i) he made or executed a document claiming to be someone else or authorized by someone else or (ii) he altered or tampered a document; or (iii) he obtained a document practicing deception, or from a person not in control of his senses. There is a difference between execution or making of a document itself being false and the contents of a document being false. Whereas the former is covered u/s 464 IPC, the latter would not amount to f' alse document' as defined in section 464 of IPC.
14.5 In Md. Ibrahim & Ors. v/s State of Bihar and Anr. 2010 Cri LJ 2223, the Hon'ble Supreme Court held, "The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.
10. An analysis of section 464 of Penal Code shows that it divides false documents into three categories :
10.1 The first is where a person dishonestly or fraudulently makes or executes a documents with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
10.2 The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
CBI Case No. 35/12 43 of 47 10.3 The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
11. In short, a person is said to have made a 'false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
12. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of 'false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his own even though he knows that it is not his property. But to fall under first category of 'false documents' it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else.
Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section CBI Case No. 35/12 44 of 47 471 of the Code are attracted.
14.6 In present case, the three documents viz. verification report dt. 30-03-98 of accused no 4 Arvind Kumar Sharma of Pooja International, Survey Report, dt. 16-03-98 of accused no. 5 Pramod Kumar Gupta of P.K. Gupta and Co. and recovery fee bill dt. 14-08-98 of accused no 6 Ramesh Khaneja of Globe Claims Recovery Cosultants were not made by accused persons claiming themselves to be somebody else or that they were authorized by somebody else. Therefore, even if the contents of such documents are false, the documents themselves are not f' alse document' as defined in Section 464 of IPC. Since these are not false documents, there is no forgery and thus, section 467 & 468 IPC are not attracted. Therefore, no case is made out against the aforesaid accused persons under sections 468 or 467 of the IPC.
Conclusions.
15.1 In view of the aforesaid discussion it is considered that the prosecution has been able to prove beyond a reasonable doubt that;
a) All the accused persons namely accused No. 1, Moti Lal Mathur, accused No. 2, Y.P. Babbar, accused No. 3, Ashok Kumar, accused No. 4, Arvind Kumar Sharma, accused No. 5, Pramod Kumar Gupta and accused No. 6, Ramesh Khaneja entered into an agreement to cheat NIC, DO- XIII, New Delhi by fraudulently inducing it to sanction insurance claim in the name of Santoshi Chemicals, New Delhi under, the proprietorship of accused No. 3, Ashok Kumar, to the extent of Rs.1,77,948/- by using as genuine forged documents and by commission of criminal misconduct by public servants i.e. accused No. 1, Moti Lal Mathur and accused No. 2, Yash Pal Babbar, CBI Case No. 35/12 45 of 47
b) Accused No. 1, M.L. Mathur, being a public servant, i.e. Administrative Officer, NIC, DO-XIII, New Delhi, by illegal means and abuse of his official position, obtained pecuniary advantage to the tune of Rs.1,77,948/- for accused No. 3, Ashok Kumar of Santoshi Chemicals and caused corresponding loss to the NIC by inducing and recommending the claim proposal on the basis of forged documents for grant of above claim which was sanctioned on his recommendation,
c) Accused No. 2, Yash Pal Babbar, being a public servant i.e. Assistant Manager, NIC Ltd., Divisional Office-XIII, New Delhi, by illegal means and abuse of his official position,obtained pecuniary advantage to the tune of Rs. 1,77,948/- for accused No. 3, Ashok Kumar of Santoshi Chemicals and caused corresponding loss to the NIC by sanctioning the above claim amount on the basis of forged documents,
d) Accused No. 3, Ashok Kumar deceived NIC, DO-XIII, New Delhi and dishonestly induced NIC, DO-XIII, New Delhi to sanction insurance claim of Rs.1,77,948/- in favour of Santoshi Chemicals on the basis of forged documents i.e. invoice and GR and received the cheque of claim amount which was credited in account No. 4995 of Santoshi Chemicals of which, he was the Proprietor, and he also used the aforesaid documents as genuine, knowing or having reason to believe the same to be forged.
15.2 However, the prosecution has not been able to prove that Accused No. 4, Arvind Sharma, Proprietor of Pooja International, accused No. 5 or Pramod Kumar Gupta, Proprietor of P Gupta & Company or accused No. 6, Ramesh Khaneja, Proprietor of Globe Claim Recovery committed any forgery.
CBI Case No. 35/12 46 of 47
15.3 The points at para 9 are decided accordingly.
15.4 In view of the aforesaid, it is held that:-
a) All the accused persons namely accused No. 1, Moti Lal Mathur, accused No. 2, Yash Pal Babbar, accused No. 3, Ashok Kumar Kochar, accused No. 4, Arvind Sharma, accused No. 5, Pramod Kumar Gupta and accused No. 6, Ramesh Khaneja are guilty for commission of offence punishable u/s 120-B r/w sections 420/471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988 and they are convicted accordingly.
b) Accused No. 1, M.L. Mathur is also guilty for commission of offence punishable u/s 13 (2) r/w section 13 (1) (d) of the PC Act, 1988, and he is convicted accordingly.
c) Accused No. 2, Yash Pal Babbar is also guilty for commission of offence punishable u/s 13 (2) r/w section 13 (1) (d) of the PC Act, 1988, and he is convicted accordingly.
d) Accused No. 3, Ashok Kumar is also guilty for commission of offences punishable (i) u/s 420 IPC & (ii) u/s 471 r/w section 468 IPC, and he is convicted accordingly.
e) Accused No. 4, Arvind Sharma is acquitted of the charge u/s 468 IPC.
f) Accused No. 5, Pramod Kumar Gupta is acquitted of the charge u/s 468 IPC.
g) Accused No. 6, Ramesh Khaneja is acquitted of the charge u/s 467 IPC.
16. Let the convicts be heard on the point of sentence on 03-01-2014. Announced in the Open Court today on 20th Day of December, 2013.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi (ra/pa)
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