Delhi District Court
State vs Ashok Panjwani @ A.T. Panjwani on 20 September, 2023
1
IN THE COURT OF SHRI YASHDEEP CHAHAL
M.M.01 : New Delhi District : PHC : New Delhi.
FIR No.80/2002
P.S. : Connaught Place
Under Section : 417, 420, 471, 511, 120B IPC
State Vs. Ashok Panjwani Alis A.T. Panjwani
ID number of the case : 39647/2016 DLND020001122003
Date of commission of : 27.04.2001.
offence
Date of institution of the : 15.07.2003.
case
Name of the complainant : Shri Rajeev Venkat Raman,
Authorized Signatory,
M/s. Windsor Communications,
A.B. 108, First Floor, International Business
Center, M38/1, Middle Circle, Connaught
Place, New Delhi.
Name of accused and : (1) Ashok Panjwani Alias A.T. Panjwani,
address S/o Late Takhat Panjwani,
R/o 11/76, West View, Sion West,
Mumbai400022.
(Already Discharged)
(2) Bijon Tripathi,
S/o Shri Satyanand Tripathi,
R/o 3665, Shri Ram Nagar, Bhubneshwar,
Orissa.
(Acquitted)
Offence complained of or : Under Sections : 417, 420, 471, 511, 120B
proved of the Indian Penal Code, 1860.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 20.09.2023.
FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 1
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BRIEF STATEMENT OF FACTS FOR THE DECISION:
1.It has been rightly said that the wheels of justice grind slow, but grind fine. The present case was instituted in the year 2002.
2. During trial, coaccused Ashok Panjwani was discharged by order dated 30.10.2013 passed by Ld. Sessions Court.
3. By this judgment, I shall decide the case of the prosecution filed against accused Bijon Tripathi.
4. As per the original complaint, on 27.04.2001, Engineers India Limited (hereinafter referred to as EIL for brevity) had floated a tender on behalf of Gas Authority of India Limited (GAIL). The tender was for supply of fiber optic cables and associated items for Vizag Secundrabad Liquified Petroleum Gas Pipeline Project. In response to the tender, Sterlite Optical Technologies Limited submitted its bid to EIL. Along with the bill, certain documents were annexed indicating the business relationship of Sterlite with the complainant company, namely, Windsor Communications AB. When complainant company discovered that Sterlite Optical Technologies Limited had furnished false and fabricated bid documents to EIL along with tender, the present complaint came to be filed.
5. As per the version of prosecution, on or before 27.04.2001, Ashok Panjwani Alias A.T. Panjwani (already discharged in this case FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 2 3 vide order dated 30.10.2013 passed by Ld. Additional Sessions Judge 01, New Delhi District, Patiala House Courts, New Delhi) hatched a criminal conspiracy with Bijon Tripathi (present accused), with an intent to cheat complainant as well as Engineers India Limited, who had floated a tender on behalf of Gas Authority of India Limited.
6. In brief, the allegation against the accused persons is that they had submitted a bid on behalf of Sterlite Optical Technologies Limited in the floating tender of Gas Authority of India Limited by dishonestly using as genuine (1) purchase order dated 15.02.2000, purportedly executed between Sterlite Industries (India) Limited and Windsor Communication A.B., (2) a certificate of performance dated 04.06.2001 purportedly issued by complainant on its letterhead to Sterlite Industries (India) Limited, (3) a certificate of performance dated 08.06.2001, purportedly issued by complainant on its letterhead to Sterlite Industries (India) Limited, (4) invoice dated 22.03.2000 for 884217.60 US $, purportedly raised by Sterlite Industries (India) Limited on the complainant, (5) packing list dated 22.03.2000 and (6) airway bill of KLM Cargo showing Sterlite Industries (India) Limited as the consignor and complainant as a consignee. It is further alleged that the said documents were submitted despite knowledge that all the aforesaid documents were forged and fabricated.
7. It is further alleged that during the aforesaid period, the accused persons in furtherance of their criminal conspiracy attempted to cheat Windsor Communications A.B. by dishonestly using the forged FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 3 4 documents purportedly issued/related to the said company by submitting the same before Engineers India Limited in support of their bid with an intent to cause damage to the reputation of Windsor Communications A.B. Company. Thus, accused Bijon Tripathi was charged for the commission of offences punishable under Sections 417, 420, 471, 511 & 120B of the Indian Penal Code, 1860. Subsequently, complaint was lodged and present FIR was registered.
8. Upon conclusion of investigation, charge sheet was filed by the I.O. Subsequently, charges under Sections 417, 420, 471, 511 & 120 of the Indian Penal Code, 1860 were framed qua both the accused persons to which they pleaded not guilty and claimed trial. Since, accused Ashok Panjwani came to be discharged vide order dated 30.10.2023 passed by the Ld. Sessions Court, as mentioned above, the trial proceeded against accused Bijon Tripathi only and I may proceed to determine the question of his guilt accordingly. Thereafter, the matter was kept for prosecution evidence, wherein the prosecution examined eight witnesses to prove its case.
9. Shri A.K. Vanaik, Retired General Manager of Engineers India Limited, R/o H. No. 25, Pocket E3, Sector11, Rohini, Delhi was examined as PW1. He deposed on oath that in the year 2002, he used to work as DGM (HR & Legal) at Engineers India Limited, having its office at 1, Bhikaji Cama Place, New Delhi. He further deposed that in that year, the company had invited international competitive bids on behalf of its client 'Gas Authority of India Limited' and M/s. Optical FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 4 5 Technologies Limited' and filed their tender along with supporting documents. He further deposed that during investigation certain documents, such as original letter dated 06.08.2008 i.e. certificate of performance, Ex. PW1/B, letter dated 14.06.2001, Ex. PW1/C, photocopy of purchase contract, MarkA, photocopy of certificate of performance, MarkB, photocopy of invoice, MarkC & photocopy of packing list, MarkD, were collected from concerned department through dealing officer Mr. R.D. Srivastava, and were handed over to I.O. by him and I.O. had seized those documents vide seizure memo Ex. PW1/A, bearing his signature at point A.
10. During his crossexamination PW1 affirmed that accused Bijon Tripathi was not known to him. He further deposed that he did not have personal knowledge of the (exhibited) official documents. He further deposed that the documents were submitted for bids invited on behalf of Gas Authority of India Limited but he was not aware about the process which took place after the bids nor he had other knowledge about the tender after submission of bids. PW1 denied the suggestion that he has deposed falsely.
11. Shri Harish Mehta, S/o Shri Hargobind Mehta, R/o 32, Adarsh Industrial Estate, Sahar Road, Andheri East, Mumbai was examined as PW2. He deposed on oath that in the year 2002 he was posted as Chief Executive at Express Cargo Forwarders Pvt. Ltd. and on 16.04.2002, he had handed over certified copies of Airway Bill Nos.
FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 5 607450316932, both dated 31.07.2001 which were seized by the I.O. vide seizure memo Ex. PW2/A (running into three pages), bearing his signature at point A.
12. During his crossexamination PW2 deposed that these bills (Ex. PW2/A) were prepared by the company officials and not individually by him. He affirmed that he had no personal knowledge about the present case and he had given these bills as per record of the company. He denied the suggestion that these bills did not belong to his company.
13. Shri S.K. Ratti, S/o Late R.P. Ratti, R/o B1/411, Kailash Dham, Block1, Sector50, Noida posted as Deputy General Manager in Gas Authority of India Limited was examined as PW3. He deposed on oath that on 02.04.2002, he had joined the investigation in the present case and had handed over letter No. GAIL/ND/ED/152/2002 dated 01.04.2002 (Ex. PW3/B, objected to), letter No. GAIL/ND/LPG(P&L)/510/2000 dated 27.01.2000 (Ex. PW3/C, objected to), letter No. ELC:4529:302 dated 02.07.2001 (Ex. PW3/D, objected to), and letter dated 18.02.2002 of Shri A.K. Vanaik (Ex. PW 3/E, running into three pages), which were seized by the I.O. vide seizure memo Ex. PW3/A, bearing his signature at point A. Thereafter, his statement was recorded by the I.O.
14. During crossexamination PW3 affirmed that all the documents mentioned in the seizure memo Ex. PW3/A, which were FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 6 7 handed over to the I.O. were photocopies. He further volunteered that only two documents were photocopies. PW3 denied the suggestion that he had handed over only photocopies of all the documents mentioned in seizure memo Ex. PW3/A. He further denied the suggestion that he had handed over photocopies of the documents as originals were not with him and even the documents had never existed. He did not remember the date of execution of the documents mentioned in the seizure memo Ex. PW3/A. He knew Shri B.S. Negi, ED as they were together in their office. PW3 did not remember as to when he had lastly worked with Shri B.S. Negi as their job is transferable. Though, he could not identify signatures of Shri B.S. Negi. He could not tell if he had handed over documents mentioned in AnnexureA of Ex. PW3/E to the I.O. or not.
15. PW3 S.K. Ratti after going through the judicial record deposed that document dated 15.02.2021, mentioned at Serial No. 1 (i) Mark PW3/DA and other ten documents were not on record. PW3 denied the suggestion that all the documents mentioned in Ex. PW3/E were manipulated/tampered/removed thereby rendering Ex. PW3/E. He did not remember as to who had handed over documents mentioned in Ex. PW3/A. He did not have personal knowledge of the documents mentioned in Ex. PW3/A. He even did not remember as to on whose instance he had handed over the documents mentioned in Ex. PW3/A. He had no personal knowledge about the documents mentioned in Ex. PW3/A. He even did not remember as to on whose directions he had handed over the documents mentioned in Ex. PW3/A to the I.O. He denied the suggestion that he had not handed over the documents FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 7 8 mentioned in Ex. PW3/A. He further denied the suggestion that he was never authorized by the company to handover the documents mentioned in Ex. PW3/A. He further denied the suggestion that he has deposed falsely.
16. ASI Dharam Pal, No. 352PTC, Posted at Police Training College, Jharoda Kalan, Delhi was examined as PW4. He deposed on oath that on 16.08.2022, I.O./S.I. Gurmail had taken specimen signature of accused Bijon Tripathi on the documents Mark S5 to S11, bearing his signature at point A, before him in Police Station Connaught Place, New Delhi.
17. During his crossexamination PW4 did not remember whether I.O./S.I. Gurmail Singh had sought permission of any Court of Competent Jurisdiction to take signature and handwriting sample of accused Bijon Tripathi. He further deposed that there is/was no date below point A on each of the document Mark S5 to S11 when he appended his signatures. He further deposed that besides putting his signatures on these documents, he was not associated with the investigation of the case in any manner. He further deposed that in the year 2002 he was posted in Police Station Connaught Place. He further deposed that he would do everything that his senior officer told him to do. He further deposed that he was not a witness to the drawings document S5 to S11. PW4 denied the suggestion that he had signed these documents at the behest of I.O. subsequently. He did not know whether I.O. had called any independent witness for the activity of FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 8 9 executing documents Mark S5 to S11. He further denied the suggestion that he has deposed falsely before this Court.
18. Inspector Gurmail Singh, No. DI994, Posted at EoW Cell, Mandir Marg, New Delhi was examined as PW5. He deposed on oath that in February, 2002, he was posted as SubInspector in Police Station Connaught Place. On that day, he had received a direction under Section 156 (3) of Cr.PC along with complaint to investigate the present matter. He further deposed that on the aforesaid direction, he endorsed the complaint Ex. PW5/A, bearing his signature at point A and got lodged the present FIR. After perusal of the complaint, he came to know that accused had produced some forged documents in a tender issued by Engineers India Limited which was floated on behalf of Gas Authority of India Limited (GAIL). Thereafter, he demanded some documents regarding tender from Engineers India Limited. Subsequently, he received all the documents and seized the same vide seizure memo Ex. PW1/A, bearing his signature at point B. He also seized another document relating to tender issued by Engineers India Limited vide seizure memo Ex. PW5/B, bearing his signature at point B. Thereafter, on 02.04.2002, he also received some documents from Gas Authority of India Limited which were seized vide seizure memo, already Ex. PW 3/A, bearing his signature at point B. Subsequently, he received Airway Bill and also verified the same from Express Cargo Office as Mark A1 to A2 and seized the same vide seizure memo, already Ex. PW2/A, bearing his signature at point B. Thereafter, he also received an Airway Bill No. 07450316932, MarkA to MarkD respectively and verified the FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 9 10 same from KLM Cargo. Thereafter, he seized the documents from the accused company vide seizure memo Ex. PW5/C, bearing his signature at point A as well as documents mentioned in Ex. PW5/D. After that he obtained specimen signatures of Fredrik Storm, Mark S1 to S2, bearing his signature at point A respectively. He also obtained specimen signature of Rajeev Vankatraman, Mark S3 to S4, bearing his signature at point A respectively. He also obtained specimen signatures of accused Bijon Tripathi, Mark S5 to S11, bearing his signatures at point B respectively. Thereafter, he sent the documents consisting of questioned and specimen signatures to GEQD, Hyderabad for handwriting expert opinion. Subsequently, he received a letter from GEQD bearing No. C275/2002, Ex. PW5/E. He also sent specimen signature of complainant to GEQD and also received result of the same. After analysis of all relevant evidence, he apprehended both the accused persons, namely, Ashok Panjwani and Bijon Tripathi. PW5 correctly identified accused Bijon Tripathi. PW5 further deposed that subsequently, he prepared arrest memo Ex. PW5/F and Ex. PW5/G, both bearing his signatures at point A respectively. Thereafter, he released both the accused persons on bail vide memo Ex. PW5/H and Ex. PW5/I, both bearing his signatures at point A respectively. Thereafter, he recorded statement of concerned witnesses under Section 161 Cr.PC and after completion of investigation submitted charge sheet in the Court.
19. Despite opportunity PW5 was not crossexamined by Ld. Counsel for accused Bijon Tripathi.
FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 10 1120. During his crossexamination by Ld. Counsel for accused Bijon Tripathi (Under Section 311 Cr.PC), PW5 deposed that during the course of investigation, he did not record statement of Shri B.S. Negi. PW5 further deposed that he had not sought a certificate under Section 65B of the Indian Evidence Act regarding letter dated 01.04.2022. He voluntarily deposed that because it was a signed document. He could not certify or be sure of as to whether the signature at point A on Ex. PW 3/B were that of Shri B.S. Negi or not. He further deposed that he had not asked for the original of Ex. PW3/D and Ex. PW3/E. PW5 could not certify the authenticity of documents Ex. PW3/C, Ex. PW3/D & Ex. PW3/E. He denied the suggestion that documents Ex. PW3/B, Ex. PW3/C, Ex. PW3/D and Ex. PW3/E were forged and fabricated documents. PW5 further deposed that original documents pertaining to MarkA, MarkB, MarkC and MarkD could not be seized during the course of investigation. PW5 denied the suggestion that documents MarkA, Mark A1, Mark A2, MarkB, MarkC and MarkD were forged and fabricated documents. PW5 affirmed that documents Mark A, Mark A1, Mark A2, MarkB, MarkC and MarkD were computer print out regarding which no certificate under Section 65B was provided by the supplier KLM Cargo. He denied the suggestion that no verification of the photocopies of the documents supplied by KLM Cargo was done at any point of time. He further deposed that the documents seized vide seizure memo Ex. PW5/C were all photocopies and concerned party had never produced originals of the same at any point of time during the course of investigation. He could not certify authenticity of the documents seized vide Ex. PW5/C and deposed that FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 11 12 it was the job of concerned party. PW5 further denied the suggestion that the documents seized vide Ex. PW5/C were forged and fabricated documents or otherwise the same were inadmissible in evidence. He further deposed that he had not asked for the original of Minute Book, photocopy of which was seized vide Ex. PW5/D. He further deposed that he has not made Angilo Rodrigues as a witness. He further deposed that he had received the opinion regarding handwriting samples of various persons taken during the course of investigation. He had also made handwriting expert as a witness in the present case. He further deposed that handwriting opinion is a matter of record. He further deposed that he had sent photocopies and one original for opinion. PW5 denied the suggestion that accused was arrested on false grounds. He further denied the suggestion that the accused was wrongly charge sheeted. He further denied the suggestion that the accused never committed any offence in regard of which he was charge sheeted. He further denied the suggestion that he has deposed falsely or that he had not conducted a fair investigation in the matter.
21. Assistant SubInspector Ajay Kumar, No. 2855, Posted in Security Lines, Vice President House, New Delhi was examined as PW
6. He deposed on oath that on 13.02.2000, he was posted as duty officer from 04:00 p.m. to 12:00 midnight at Police Station Connaught Place, New Delhi and on that day at about 6:00 p.m., he had received a rukka from SubInspector Gurmail Singh on the basis of which he had recorded the present FIR, copy of which is Ex. PW6/A (OSR), bearing his signature at point A. He had also made endorsement on the rukka Ex.
FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 12 13PW6/B, bearing his signature at point A. After registration of FIR he had handed over the copy of FIR and original rukka to SubInspector Gurmail Singh for further investigation.
22. During his crossexamination, PW6 Assistant Sub Inspector Ajay Kumar deposed that complainant did not come to him for registration of FIR. He denied the suggestion that he did not receive the rukka from SubInspector Gurmail Singh or that he has deposed falsely.
23. Shri Yogesh Harshadai Bhatt, UDC posted in the Office of Registrar of Companies, Mumbai was examined as PW7, who produced certified copies of certificate of Incorporation (Mark PW7/A), Memorandum and Articles of Association of the Company (Mark PW 7/B), entire record of Form No. 32 pertaining to the year 2014 to 2017 (Mark PW7/C collectively), documents pertaining to filing of annual returns for the year 2014 to 2017 (Mark PW7/D collectively) and copies of documents filed by the company along with relevant form No. 32 (Mark PW7/E collectively) along with certificate under Section 65B of the Indian Evidence Act (Mark PW7/F).
24. During his crossexamination PW6 deposed that the aforesaid documents which he had brought to the Court were never asked by the I.O. during the course of investigation at any point of time. He further deposed that I.O. has never met him or an other officer of his office during the course of investigation. He denied the suggestion that the documents which he had brought to the Court were inadmissible in FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 13 14 evidence or that they were false or fabricated.
25. Mr. Agnelo John Rodrigues, S/o Late Mr. John Salvador Rodrigues, R/o A802 & 803, Daffodils, Kandarpada, Off Link Road, Dahisar West, Mumbai400068 was examined as PW8. He deposed on oath that he joined as Deputy Company Secretary with Sterlite Optical Technologies Limited somewhere in 2001 and resigned on 15.03.2003. His reply to the notice of the I.O. under Section 91 Cr.PC is Ex. PW8/A, bearing his signature at point A. He further deposed that on 21.05.2002, he had produced power of attorney (Mark PW8/B), information that Mr. K.S. Rao was the Head/Chief Operating Officer of above said company Cable Division (Mark PW8/C running into two pages), and Shri B.K. Sharma was the Chief Operating Officer of the Jelly Filled Telephone Cable Division (Mark PW8/D running into two pages), all bearing his signatures at point A on each page. He had also handed over certified true copy of EGM dated 06.09.2000 (Ex. PW8/E) relating to appointment of Mr. Ashok T. Panjwani as whole time director and CEO of the aforesaid company, Form No. 25C (Mark PW8/F running into two pages), Form No. 29 (Mark PW8/G) and Form No. 32 (Mark PW 8/H) and the same were seized by the I.O. vide seizure memo, already Ex. PW5/D, bearing his signature at point B. He further deposed that he had also handed over certified true copy of pages of attendance register of meetings of Board of Directors (Ex. PW8/I1, Ex. PW8/I2, Ex. PW 8/I3 & Ex. PW8/I4) as well as certified copies of minutes of meeting of the Board of Directors (Ex. PW8/J collectively) to the I.O.
FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 14 1526. Exhibition of these documents was objected to by Ld. Counsel for accused to the mode of proof being computer print outs.
27. He further deposed that he has not brought originals of these documents/exhibits as he had left the aforesaid company w.e.f. 15.03.2003 and he has no connection with the said company. Further, he was not authorized or InCharge to bring originals of aforesaid documents.
28. During his crossexamination by Ld. Counsel for accused, PW8 Mr. Agnelo John Rodrigues deposed that I.O. had visited his company in his presence. He further deposed that I.O. had never asked to show or to deliver originals of aforesaid documents/exhibits. He further deposed that most of the documents which he had supplied to the I.O. upon his notice were photocopies or computer print outs. He denied the suggestion that the documents which he had produced before the I.O. were illegal and inadmissible in evidence.
29. After completion of evidence of all the PWs, P.E. was closed.
30. Statement of accused was recorded under Section 281 read with Section 313 of Cr.PC on 25.05.2023, wherein the entire incriminating evidence was put to the accused. The accused responded by stating that the allegations were incorrect. To put it simply, the accused denied all the allegations. The accused chose not to lead any FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 15 16 defence evidence in his favour.
31. Thereafter, the matter was fixed for final arguments.
32. During final arguments, I have heard Ld. APP for the State and Shri Vikas Pahwa, Ld. Senior Advocate on behalf of the accused. In addition to elaborate oral arguments, the accused has also filed written submissions, compilation of exhibits and relevant case law to support his case.
33. Ld. APP for the State submitted that the prosecution has proved its case beyond reasonable doubt and all the witnesses have invariably supported the case of the prosecution.
34. Per contra, it is submitted by Ld. Sr. Advocate on behalf of the accused that the prosecution has failed to prove the basic ingredients required for the offence under question. It is submitted that the allegations made in the complaint discloses a misrepresentation to EIL or GAIL and there was no misrepresentation at all towards the complainant company. It is further submitted that the offence of conspiracy requires atleast two persons for an agreement. In this case, the coaccused had already been discharged and the present accused on his own cannot be indicted for the offence of conspiracy. Reliance in this regard has been placed upon Topan Dass Vs. State of Bombay.
35. It is further submitted that the prosecution has also failed to FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 16 17 prove the offence under Section 471 IPC as the said provision incriminates using of a forged document. It is submitted that the factum of forgery must be established by the prosecution for alleging the use of a forged document. It is further submitted that five of the alleged seven documents were seized as photocopies and thus, no authorship could be attributed to the accused due to lack of original documents. As regards the original documents seized by the I.O. it is submitted that the authorship of the accused could not be established with the said documents. In this regard, reliance is placed upon the result of FSL which came to be inconclusive.
36. I may now decide the issue whether the accused induced the complainant company and cheated it by submitting forged and fabricated documents along with the bid. The fundamental rule of criminal law postulates that the burden of proving the case rests on the shoulders of the prosecution. The standard of proof that must be presented by the prosecution is beyond reasonable doubt which means that the conclusion of guilt could only be reached on the basis of relevant, admissible and credit worthy evidence. Such conclusion cannot be reached on the basis of mere suspicion. It may also be noted that the primary burden rests upon the prosecution and until and unless, the primary burden is discharged to the satisfaction of the Court, the burden does not shift upon the accused.
37. Before proceeding, I may reproduce Section 420 of the Indian Penal Code for ready reference, which reads thus: FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 17 18
420. Cheating and dishonestly inducing delivery of property.
-- 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, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
38. Section 420 IPC culminates two elements of cheating and delivery of property as a result of deception followed by inducement in a dishonest manner. Whereas, the latter element is fairly clear, the former derives its meaning from Section 415 IPC, which reads thus:
415. Cheating. Whoever, by deceiving any person, fraudu lently or dishonestly induces the person so deceived to de liver any property to any person, or to consent that any per son shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section.
39. Briefly put, the offence of cheating requires the following ingredients -
(a) The accused deceives any person by doing any act including a false representation;
(b) The deception results in dishonest or fraudulent inducement of any person to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 18 19 security, or anything which is signed or sealed, and which is capable of being converted into a valuable security.
40. For proving the offence under Section 468 and 471 of IPC, the basic ingredient is of forgery as provided under Section 463 of IPC. It may be noted that forgery is making of any false document with the intent to cause damage or injury to any person or to support any claim or title or to cause any person to part with property etc. The essential ingredient of forgery is making of a false document which is defined in Section 464 of IPC. In Mohd. Ibrahim Vs. State of Bihar, 2009 (8) SCC 751, Section 464 of IPC was explained by the Hon'ble Supreme Court and was divided into three categories. The relevant para may be reproduced as : "14.An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:
1. The first is where a person dishonestly or fraudulently makes or executes a document 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.
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.
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.
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 practising deception, or from a person not in control of his senses."
41. In addition to the above, Section 468 penalizes forgery with FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 19 20 an intention to use the forged document for the purpose of cheating and Section 471 penalizes dishonest or fraudulent use of any forged document as genuine despite knowing or having reason to believe that it was forged. It may be noted at the outset that the offence under Section 471 IPC is primarily based on the foundation of forgery and the allegation of forgery in this case rests on the foundation of cheating. In other words, the accused is charged with cheating by way of using forged documents. I may now proceed to appreciate the evidence on record.
42. The first witness examined by the prosecution was an employee of EIL, who had supplied the alleged documents, purportedly submitted by the accused along with the bid to EIL. A total of seven documents were supplied by PW1, out of which five documents were photocopies and two were in original. The documents in original are letter dated 14.06.2001 which is Ex. PW1/C and letter dated 08.06.2001 which is certificate of performance purportedly issued by the complainant company and is Ex. PW1/B. The remaining documents were photocopies. Ex. PW1/B is addressed in the form of a letter to accused Bijon Tripathi by the complainant company. Ex. PW1/C is a document bearing subject clarifications against bid document and is addressed by the accused in his capacity of Senior Manager (Marketing) to EIL. During investigation, the signatures on the said two documents were marked as Q1 (signatures purportedly made by authorized signatory of the complainant company) and Q2 (signatures of the accused). For the purpose of comparison, specimen FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 20 21 signatures/handwriting samples were obtained by the I.O. The I.O. had obtained samples S1 and S2 of Mr. Frederik Storm, S3 and S4 of Mr. Rajiv Venkat Raman, AR of complainant company and S5 to S11 of the accused Bijon Tripathi. The signatures/handwritings on the remaining photocopy documents were also marked as questioned signatures/handwritings. All the documents were collectively sent to FSL for the purpose of comparison by scientific examination.
43. The FSL report Ex. PW5/E is inconclusive. The reason cited in the report is that authorship of the questioned signatures on original documents i.e. Q1 and Q2 could not be attributed to either of the three persons whose samples were taken, including the accused. So far as the photocopy documents are concerned, the report states that original documents are required for examination. Therefore, the FSL report failed to establish any causal link between the alleged forgery and the accused. PW2 supplied the Airway Bill as a duly certified true copy on behalf of Express Cargo. It may be noted that one of the allegations pertains to the creation of a false Airway Bill. The prosecution has also placed on record a document bearing Mark A2, which is a letter written by Mr. Arun from K.L.M. Cargo. The said letter was written in response to the I.O.'s request for verification of authenticity of the Airway Bill, seized by the I.O. vide seizure memo Ex. PW1/A. The said Airway Bill is MarkE. In response to the same, the letter stated that the Airway Bill MarkE furnished by the accused along with the bid to EIL did not match with the Airway Bill lying in the record of KLM Cargo. The import of this letter is that the bill annexed with the bid documents was indeed a FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 21 22 false document. However, the said letter written by Mr. Arun is a photocopy document. It may be noted that every piece of evidence, oral or documentary must satisfy the test of admissibility in accordance with the Law of Evidence. The said person was neither examined by the I.O. during investigation nor called as a witness by the prosecution during trial. Furthermore, the said document does not satisfy any of the requirements of secondary evidence as per the Evidence Act. In such circumstances, Mark A2 cannot be admitted in evidence. Even otherwise, even if it is assumed that the Airway Bill submitted along with the bid documents was a forged document, the prosecution is under an additional burden to prove that the act of forgery was committed by the accused - the link of causation. Even if Mark A2 is taken on its face value, it does not prove the link of the accused with the alleged forgery.
44. PW5 is the I.O. of the case. During his crossexamination, questions were put to him regarding the authorship of letter dated 01.04.2022 written by Shri B.S. Negi. The I.O. deposed that the said person was not examined by him and he could not identify his signatures. He further deposed that he could not certify the authenticity of the documents Ex. PW3/C, Ex. PW3/D and Ex. PW3/E. The I.O. also deposed that the original documents of MarkA, MarkB, MarkC and MarkD were not seized during investigation. He confirmed that the documents seized vide seizure memo Ex. PW5/C are all photocopies.
45. The entire evidence of the prosecution revolves around the documents seized during the investigation. The case is largely based on FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 22 23 documentary evidence. Moreover, the witnesses are mainly the persons who had supplied the documents to the I.O. in their official capacities. None of the witnesses is privy to the contents of the documents and all of them have denied any personal knowledge of the documents. In such circumstances, the prosecution was under a burden of proving the authenticity of the documents, relevance thereof as well as their admissibility.
46. Forgery is the main aspect of this case. The forgery is alleged with respect to the documents seized vide seizure memo Ex. PW 1/A. The original documents, two in number, were scientifically examined and authorship of the said documents could not be established. In such scenario, the prosecution has failed to prove that the accused had made the false documents. The photocopies, five in number, were seized and marked during evidence without producing the originals. The question of admissibility of such documents has to be tested on the anvil of Section 63 of the Indian Evidence Act, which defines secondary evidence and Section 65, which provides for the cases in which secondary evidence may be given. It may be noted that an original document is considered to be the best evidence in a judicial proceeding. However, in view of practical exigencies, Section 65 delineates certain circumstances, wherein secondary evidence in lieu of the original document could be taken on record. In this regard, I may usefully refer to the decision of the Hon'ble Supreme Court in Ramsuresh Singh Vs. Prabhat Singh @ Chhotu, 2009 (6) SCC 681, S. Gurbachan Singh Vs. Geeta Issar, passed by the Hon'ble High Court of Delhi in C.M. (M) FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 23 24 No. 576/2023 and Sudhir Engineering Company Vs. Nitco Roadways Limited, 1995 SCC Online Del. 251. The consistent view taken by the Hon'ble Supreme Court as well as by the Hon'ble Delhi High Court is that photocopies of documents are inadmissible in evidence until and unless they are proved in accordance with Section 63 and 65 of the Indian Evidence Act. In this case, the original documents were never produced or seized. In such circumstances, there is no question of comparing the photocopies with the original. It is also not the case of the prosecution that the original documents were beyond the control of the prosecution or the investigating officer. In such a case, the test of Section 65 is not passed by the documentary evidence on record. It may be noted that mere marking of any document does not automatically render it admissible. The purpose of marking is only to indicate the placement of a document on the judicial file and it has no bearing on the question of admissibility of the said document. Admissibility is corelated with the mode of proof.
47. In view of the above discussion, it cannot be said that the documents were forged. The allegation of forgery has not been proved. Furthermore, no link has been established between the accused and the alleged act, if any. I may also refer to the decision of the Hon'ble Supreme Court in Sheila Sebastian Vs. R. Jawahar Raj, 2018 (7) SCC 581, wherein the proposition of law regarding the offence of forgery has been expressed by the Court in clear terms. It is categorically held that any person who is not an author of the forged document cannot be held FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 24 25 guilty of forgery. The proof of authorship is dependent upon two factors (1) availability of original document and (2) Presence of the signatures/handwritings of the accused on the said document or proof of preparation of the said document through any electronic mode. In the present case, none of these conditions could be fulfilled by the prosecution. Since forgery itself could not be proved, the allegation of using a forged document also cannot be sustained.
48. In light of Section 471 IPC, I may also observe that the prosecution has not examined any witness to identify the accused as the person who had actually used the forged document. The documents were filed by the Company, namely, Sterlite Optical Technologies and not by the accused in his personal capacity. In the original complaint, the directors of the said company were also arrayed as accused persons. However, the charge sheet was not filed against them. The role of the present accused, if any, could only emerge from the existence of a criminal conspiracy with the remaining accused persons. No doubt, even the allegation of using a forged document and cheating could be sustained on the basis of a criminal conspiracy, even if direct authorship could not be attributed to the accused. However, the allegation of conspiracy is also unsubstantiated and unbacked by any evidence.
49. It is a fairly settled proposition of law that criminal conspiracy requires the existence of a prior agreement. At times, it may appear that a conspiracy is existing but the conspirators are not traceable.
FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 25 26Even in such circumstances, the element of conspiracy could be sustained as long it is proved that conspiracy exists in the form of a prior agreement with the conspirators, who either could not be traced or have expired. In this regard, I may usefully refer to the following statement quoted by Lord Justice Bruce from Chitty's Criminal Law:
"And it is holden that if all the defendants mentioned in the indictment, except one, are acquitted, and it is not stated as a conspiracy with certain persons unknown, the conviction of the single defendant will be invalid, and no judgment can be passed upon him".
50. However, in a case wherein all the alleged persons are on record and nothing incriminating could be found against them, the remaining sole accused persons cannot be charged with criminal conspiracy. This proposition of law has been observed by the Hon'ble Supreme Court in Topan Dass Vs. State of Bombay, 1955 (2) SCR 881, and also in Gulab Singh Vs. Emperor. In light of the said proposition, the accused could not be held liable even for being a part of any criminal conspiracy. Accordingly, charge under Section 120B of IPC also falls.
51. The entire allegation under Section 420 IPC stands from the existence of forgery. The element of forgery in this case is the pillar on which the structure of cheating stands. Since, the pillar itself has fallen, the structure is bound to fall. In this regard, I may again refer to Sheila Sebastian (supra), wherein it is held that when the offence of forgery forms the basis of the allegation of cheating, there cannot be a cheating if the allegation of forgery is not proved. Even otherwise, the inducement FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 26 27 in this case, if any, was towards EIL or GAIL and not towards the complainant.
52. In light of the above discussion, I am of the considered opinion that the prosecution has failed to prove its case against the accused. The material on record either fails to pass the test of admissibility or is completely inadequate to prove the ingredients of the offences in question. Accordingly, accused Bijon Tripathi stands acquitted.
53. The existing bail bond of accused is extended for a period of six months during the period of appeal, if any, to be preferred by the State.
54. This Judgment is contained in 27 pages and all pages have been signed by me at the bottom.
55. File be consigned to Record Room after necessary compliance.
YASHDEEP Digitally signed by YASHDEEP
CHAHAL
CHAHAL Date: 2023.09.20 16:17:07
+0530
Announced in the open Court (YASHDEEP CHAHAL)
On 20th September, 2023. M.M.01 : New Delhi District Patiala House Courts : New Delhi.
FIR No. 80/2002 State Vs. Ashok Panjwani Alias A.T. Panjwani & Bijon Tripathi Page No. 27