Delhi District Court
Cbi vs (1)L.K. Gupta S/O on 5 March, 2008
1
IN THE COURT OF MS. I.K. KOCHHAR: SPL.JUDGE,
CBI,NEW DELHI
CC No.31/07
RC DAI 2001 A 0056
CBI Versus (1)L.K. Gupta S/o
Lt. Sh. LR Gupta,
R/o A-1/161-162
Sector 11, Rohini
(2)Sanjay Raina S/o
Sh. KN Raina, R/o
269-C, Dilshad Garden,
Delhi.
(3)Rajeev Kumar Goyal S/o
Lt. Sh. Rameshwar Dayal,
R/o 18, Radhey Shyam Park,
New Delhi.
(4)Deepak Handa S/o
Lt. Sh. GN Handa, R/o
B-1/33-2, Safdarjang
Enclave, New Delhi.
03.03.2008
JUDGMENT
1. The case of the prosecution is that A- 2 1 L.K. Gupta Branch Manager NIC Kapashera had entered into a criminal conspiracy with the other co accused persons namely A-2 Sanjay Raina, A-3 Rajeev Kumar Goel and A-4 Deepak Handa and in pursuance thereto by abusing his official position he had passed seven fictitious marine claims in favour of the six firms in which forged and false claim documents were used as genuine by A-2 to A-4 and thereby caused a wrongful loss to the NIC and a corresponding wrongful gain to the accused persons.
2. Investigation had revealed that in NIC consignments required to be transported from one destination to another destination are insured under various categories such as Marine Open Policy, specific policy etc. In Marine Open Policy if the insured consignment was found stolen the insured should lodge complaint in the Police Station and in case of loss of short supply of consignment the complainant should intimate the 3 transporters about the same who would subsequently intimate the NIC; on receipt of the information from the insured the NIC situated at the place where the loss of damage occurred, appoints independent surveyors from their approved list of surveyors who would conduct survey and assess the loss/damage occurred to the insured consignment and submits the survey report. This survey report is received in the dispatch sections of the respective branch of the NIC and the dispatch section in turn sends the document to the office incharge who in turn marks the document to the respective departmental heads who then sends the report to the dealing assistant; on receipt of the report the dealing assistant processes the claim and forwards the same back to the departmental head with its recommendations; the departmental head on receipt of the claims from the assistant forwards the same to the Branch Manager with his 4 recommendations for approval; the claim should contain goods receipt, letter of subrogation, details of appointment of surveyor and Recovery Agent and Correspondence details between the transporter and insured. There were seven claims relating to six firms in this case:
(i) Claim No. 21/96-97/05 & Policy No. 361403/21/11/0004/124/96 policy was taken on 22.4.96 by Sh. Sanjay Raina in the name of M/S Sonia & Company, 18 Radhey Shyam Park Delhi-92 for transporting industrial chemicals; subsequently a survey report was issued by M/S Z.K. Consultancy Services Pvt Ltd by assessing the loss of insured goods as Rs.27,300/- and also submitted bill for Rs.1664/- as survey fee which was encashed by A-2 from his account. In the survey report the consignor's name was mentioned as M/S Paras Chemicals, Bombay which was found to be non existent. The consignee's address was mentioned as 5 18 Radhey Shyam Park, New Delhi which was the residential address of Raj Kumar Goel who was co worker with A-2 Sanjay Raina. Survey Report was dated 04.6.06 whereas M/S Sonia & Co.'s letter mentioning about the loss assessed by the surveyor was dated 31.5.1996; there was no goods receipt, letter of subrogation or the correspondence details between the insured and the transporter. The details of the appointment of the surveyor was also not available in the file. In this case the recovery agent was not appointed even though full payment was paid towards the claim; A-2 Sanjay Raina himself was insured as well as surveyor in this case; the claim was processed by A-1 without involving other subordinate staff in violation of the established procedures.
(ii) Claim No. 44/95-96/04 & Policy No. 4400035 policy was taken by A-3 Rajeev Kumar Goel in the name of M/S Rajeev Kumar & Co on 7.11.94 for 6 transporting chemicals from M/S Paras Chemical Trading Co; there is no survey report in the file; the claim was passed by A-1 for Rs.20800/- and a cheque in the same amount was issued by the NIC; this cheque was encashed by A-3; there are no details of the appointment of recovery agent in the file; however the bill towards the recovery fee was in the name of Vinod Kaul which was found placed in the file; Vinod Kaul is another name of Sanjay Raina and the address of Sanjay Raina and Vinod Kaul is the same; the payment towards recovery was remitted by Sanjay Raina for Rs.1500/- whereas the payment towards the recovery should be made by the transporter. The consignee's address in the claim is the residential address of the insured Rajeev Kumar Goel's father in law and no business transactions took place at his residence; the consignor's address was fictitious; the goods receipt and survey report were also not found in 7 the file; the claim was processed and passed by A-1 without involving other subordinate staff; the signatures of A-3 Rajeev Kumar Goel has been confirmed by the handwriting expert.
(iii) Claim No. 21/95-96/07 & Policy No. 21/11/032/0058/95 policy was taken by A-4 Deepak Handa in the name of Silk Screen 61 F Ber Sarai New Delhi-16 for transporting chemicals from M/S LA Marketing Agency; the claim was lodged on 29.9.95 and on the same day A-1 had appointed M/S Z.K. Consultancy Services Pvt. Ltd for conducting survey and loss was assessed at Rs.20212; A-1 passed the claim for payment of Rs.20080; a cheque was issued by the NIC for the same amount which was got encashed by A-4 Deepak Handa; the goods receipt in the name of M/S Goel Road Lines found in the file was not in existence; as per the norms the payment towards recovery should be arranged by the transporter whereas in the instant case the 8 recovery payment was arranged by Sanjay Raina himself; A-4 is a co brother of A-2; the fee for having effected recovery was paid to Sanjay Raina by NIC for Rs.705/-; the firms M/S Z.K. Consultancy Services Pvt Ltd and M/S Vinod Kaul were owned by Sanjay Raina in the name of Vinod Kaul; the address of Vinod Kaul is the residential address of Sanjay Raina.
(iv) Claim No. Marine/97-98/01 & Policy No. 220/07 policy was taken by A-2 Sanjay Raina in the name of Sarthak Enterprises 61-F Ber Sarai, New Delhi for transporting cardboard papers from Bombay to New Delhi; claim was intimated on 13.5.97; on the same day A-1 appointed M/S Z.K. Consultancy Services Pvt Ltd to carry out the survey; the firm submitted report dated 20.5.97 assessing loss to the insured goods at Rs.46300/- and also submitted bill for Rs.2594 towards survey fee; the claim and the bill for survey fee was passed by A-1 and the 9 cheque were encashed by A-2; the address of M/S Sarthak Enterprises was also the address of M/S Silk Screen; this firm belonged to A-4 co brother of A-2. In this claim even though full claim amount was paid but no recovery agent was appointed by A- 1; the insured himself was appointed as surveyor by A-1; the claim was processed and passed by A-1 without involving other subordinate staff.
(v) Claim No. 97-98/10 & Policy No. 022866 policy was taken by A-2 on 29.4.98 in the name of SKW & Company for transporting ball bearings from Bombay to Delhi; claim was lodged on 18.5.98 mentioning the loss of Rs.47840/- and on the same day M/S ZK Consultancy Services Pvt Ltd submitted a letter confirming the loss of consignment insured by M/S SKW & Co; A-1 had passed the claim; the cheque issued by the NIC was got encashed by A-2; the firm M/S Z.K. Consultancy Services Pvt Ltd was also owned by A-2 himself; the consignor's address, 10 goods receipt, letter of subrogation, correspondence details between the insured and the transporters and appointment of surveyor were not available in the file; the claim was processed and passed by A-1 in gross violation of practice in vogue; the signatures of A-2 has been confirmed by the CFSL report.
(vi) Claim No. 98-99/12 & Policy No. 304/98 was taken by A-2 Sanjay Raina on 22.9.98 in the name of M/S Abha International for transporting chemicals from Bombay to Delhi; claim was lodged on 1.10.98; Raj Kumar Goel issued survey report assessing the loss to the insured goods at Rs.47400/-; the claim was recommended by Jagdish Narain Meena Dealing Assistant; the claim was passed by A-1; the cheque issued by the NIC was encashed by A-2 Sanjay Raina; the goods receipt letter of subrogation, appointment of surveyor were not placed in the file; survey fee of Rs.2210/- was 11 paid to Raj Kumar Goel and this cheque amount was encashed by him; in this claim even though the entire claim amount was paid but no recovery agent was appointed by A-1.
(vii) Claim No. 21/96-97/08 & Policy No. 69/96 policy was taken by A-2 in the name of M/S Abha International for transporting chemicals from Bombay to Delhi; the claim was lodged on 13.12.96 mentioning therein the loss to the tune of Rs.28180; M/S Z.K. Consultancy Services Pvt Ltd owned by A-2 himself in the name of Vinod Kaul submitted survey report assessing the loss at Rs.28180/-; the claim was passed by A-1; the cheque issued by the NIC was encashed by A-2; in this case the consignor and the transporter were never in existence; the goods receipt, letter of subrogation, policy and appointment of surveyor were not available in the file; the claim was processed and passed by A-1 himself without 12 involving other subordinate staff.
(3) Investigation had revealed that all the claims were perpetrated during the tenure of A- 1 and all the claims amounts were chosen under his financial powers. As per practice the claim intimations are received in the claim section and the same are entered into receipt register and subsequently sent to the dealer, whereas in the present case, entries relating to these claims in question were not found in the register. Original documents for effecting recoveries are given to the recovery agents duly retaining the photocopies in the file and subsequently after effecting the recoveries the original documents are received back from the recovery agents, whereas in the present case neither the originals nor the photocopy of the documents were found in the file. During investigation it has been revealed that in most cases the insured himself was appointed as surveyor 13 as well as recovery agents in gross violation of norms. As per the practice in vogue the cheque towards claim settlements are sent by registered post or occasionally given to the insured with due acknowledgement whereas in the present case neither the cheques were sent by registered post nor any acknowledgements were taken towards delivery of cheques.
(4) As per the prevailing practice the receipt of claim intimation issue/receipt of document to/from recovery agents, issuance of cheque and custody of claim files are done by dealing assistant whereas in the present case the entire process was done by A-1 L.K. Gupta without involving other staff. The signatures and handwriting of the accused persons on the documents have also been confirmed vide reports of GEQD and CFSL and thus the present case under Section 120 B/419/420/467/468/471 IPC and Section 13 (2) read 14 with 13 (1) (d) of the PC Act was registered against the accused persons as also for the substantive offences thereof against them. Accordingly charge sheet was filed.
(5) This in brief is the case of the
prosecution.
(6) In view of these aforestated
allegations which were contained in the charge
sheet charge was framed against all the accused
persons on 11.8.03 under Section 120
B/420/467/468/471 IPC and Section 13 (2) read with 13 (1) (d) and Section 15 of the PC Act.
Substantive charge under Section 13 (2) read with 13 (1) (d) and Section 15 of the PC Act was also framed against A-1. Substantive charge under Section 420/467/468/471 IPC was also framed against A-2 to A-4.
(7) Accused persons pleaded not guilty to the charges framed against them and claimed trial. 15 (8) The prosecution in support of its case cited as many as 29 witnesses all of whom have been examined by the prosecution. The employees of the NIC are PW 2 VK Bajaj, PW 4 Pushpender Kumar, PW 5 Geeta Sharma, PW 8 A.L. Gambhir, PW 9 Jagdish Narayan Meena and PW 15 Atish Pathak; the procedure of Marine Claims has been explained by PW 9 and PW 15 in detail. PW 7 Ashok Kumar Jain, PW 13 Rakesh Jain as also PW 26 Shalini Gupta were the Insurance Agents of the NIC; PW 14 Ramesh Kumar Gakhar was an employee of the Union Bank of India where the NIC was maintaining its account. PW 19 Nishant was the representative of the Jain Cooperative Bank. PW 20 Sabhyasachi Mahanty had appeared from the HDFC Bank. PW 27 Rajeev Narula was a representative from the Canara Bank. PW 18 Rakesh Mudgil was the empaneled recovery agent. The specimen signatures of A-2 were taken in the presence of PW23 Mohan Singh and PW 25 Nitish Kumar; the specimen 16 signatures of A-3 were taken in the presence of PW24 Ranjeet Kumar Mishra and PW 28 Anil Kumar Tewari; the specimen signatures of A-4 were taken in the presence of PW22 L.N. Sharma. Sanction had been accorded by PW 29 Sujit Dass. PW 30 Ramesh Chand from GEQD has proved his report in his version. The Investigating Officer of this case has been examined as PW 33; he had seized the seven claim files Ex. P-1 to Ex. P-7 from the NIC and thereafter investigation had been carried out by him and he had examined the witnesses as detailed Supra and had also collected the GEQD opinion and had placed the same on record.
(9) Statement of the accused persons was recorded under Section 313 of the Cr.P.C wherein each of the accused has stated that he is innocent and has been falsely implicated in the present case. A-1 L.K. Gupta has stated that between March 1994 to July 1998 he was the single handed officer 17 in the branch to process and pass the claims of all the departments and this was a well known fact. A- 2 Sanjay Raina has stated that the witnesses have been pressurized by the CBI to give false statements against him and so also is the version of A-3 Rajeev Kumar Goyal. A-4 Deepak Handa has stated that he has not signed anywhere on the claim documents and this has infact been confirmed by the handwriting expert.
(10) In defence the accused persons have examined 8 DWs. DW 1 is Sh. A.K. Seth who was posted as Vigilance Officer, Central Vigilance Commission at the relevant time. DW 2 is Sh. Lalit Kumar Dubey who had been working with the M/S Abha International at the relevant time. DW 3 is Sh. Anil Kumar Tiwari who was one of the team members who had carried out the raid at Kapashera for the seizure of the files and he along with A.K. Seth had prepared the Vigilance Report. DW 4 is Sh. HK 18 Sharma who was posted as Deputy General Manager, NIC. DW 5 is Sh. Ravinder Singh the proprietor of M/S Silk Screen. DW 6 is Sh. P.K. Jain. DW 7 is Sh. Arun Jain who was an agency in the name of Riti Arora. DW 8 is Sh. Devi Singh who had been worked with DRO I of NIC as Manager.
(11) On behalf of the prosecution it has been stated that the case of the prosecution stands fully corroborated in view of the documentary evidence which has been relied upon by the prosecution and it has clearly been established that A-1 L.K. Gupta the Branch Manager had entered into this criminal conspiracy with the other co accused persons whereby he had passed seven Marine Claims in favour of the six private firms i.e of the co accused persons namely A-2 Sanjay Raina, A-3 Rajeev Kumar Goyal and A-4 Deepak Handa and for this purpose forged and false claim documents were used as genuine and by arranging these false claims 19 a wrongful loss was caused to the NIC and a corresponding wrongful gain to the accused persons. (12) On behalf of A-1 L.K. Gupta arguments have been addressed by counsel Mr. RNP Sinha. Written submissions have also been filed; the same has been perused. It is stated that admittedly the principle of insurance is based on the principles of utmost good faith and whatever the insured would inform the Insurance Company the same is liable to be believed; Rule 38 of the General Insurance Business (Nationalization) Act 1972 has been relied upon. It is stated that the acts of A-1 in his capacity as Branch Manager were bonafide and it cannot be said by any stretch of imagination that he has abused his office as a public servant as admittedly A-1 had been burdened with the task of not only passing and processing Marine Claims but various other jobs including passing of the motor claims and for this proposition reliance has been 20 placed upon the version of PW 4 who had also admitted that during 1995 to 1998 A-1 was only the person in the officer grade in Kapashera Branch. It is stated that admittedly Insurance work is based on the principles of good faith and trust and it cannot be said that while passing or allowing these Marine Claims A-1 had transgressed his authority. Reliance has been placed upon a judgment of the Hon'ble Apex Court reported in 1979 Crl.L.J. 566. It is argued that the abuse of position in order to come within the mischief of Section 5(1) (d) (PC Act 1947) must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department and it is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage either for himself or for any other person which the prosecution in the instant case has failed to do 21 so.
(13) On behalf of A-2 Sanjay Raina arguments have been addressed by counsel Mr. R.K. Handoo. Written submissions have also been filed; the same has been perused. It is stated that it is a cardinal rule of criminal jurisprudence that the accused is presumed to be innocent until proven guilty and it is for the prosecution to discharge this onus without any reasonable doubt. It is stated that in this backdrop the charge which has been framed against the accused is also faulty and amounts to a misjoinder of charges as in this charge framed on 11.8.03 by ld. Predecessor of this court six claimant firms/companies have been mentioned comprising of six distinct acts and as per Section 219 of the Cr.P.C only three offences of the same kind can be clubbed together and not six as has been done in the instant case and as such the charge framed is also unfair and defective 22 and the trial in pursuance of the same is liable to be set aside. It is stated that A-2 has been charged only for the commission of conspiracy and no substantive offence has been alleged against him under the Prevention of Corruption Act. It is stated that M/S Sonia & Co and M/S Sarthak Enterprises are owned by A-2; A-2 had also placed an order on M/S SKW & Co as also on two firms of M/S Abha International which were all in existence during this relevant time and the conclusion of the Investigating Officer that these were non existent firms is absolutely false. It is stated that there is no explanation as to why Mrs. Anita Zaveri purported to be the landlady of Zaveri Chambers who could have thrown light on the existence of M/S LA Marketing Agency has not been produced as a witness. Ld. Defence Counsel has placed reliance upon a judgment of the Hon'ble Apex Court reported in (1994) 5 SCC 152 to substantiate his submission 23 that the opinion of the handwriting expert is not by itself sufficient to nail the accused and under Section 73 of the Cr.P.C it is only the court which is inquiring into the offence or trying the accused persons which can obtain the specimen signatures of the accused and Section 73 of the Evidence Act cannot be made use of for collecting specimen writings during the investigation and as such in the instant case also the opinion of the handwriting expert cannot be taken into account; the specimen signatures of the accused which had been taken in the presence of PW 25 is hit by the rights guaranteed to a person under Article 20 (3) of the Constitution of India. It is argued that it is the duty of the prosecution to get best evidence available which has not been done so.
(14) On behalf of A-3 Rajeev Kumar Goyal arguments have been addressed by counsel Mr. Yudhistir Kahol. It is stated that there is no 24 evidence against the accused and the version of the prosecution that he had signed the disputed documents has not been borne out from the opinion of the GEQD.
(15) On behalf of A-4 Deepak Handa arguments have been addressed by counsel Mr. I.D. Vaid. Written submissions have also been filed; the same has been perused. It is stated that a perusal of the charge framed on 11.8.03 shows that accused Deepak Handa has not been charged for the offence of conspiracy or abetment for the commission of offence under Section 13 (2) read with 13 (1) (d) of the PC Act but he has only been charged for the substantive offence under the IPC i.e for the offence under Section 420/467/468 read with 471 IPC. It is stated that accused has not submitted any proposal for obtaining any Marine Claim nor has he obtained any policy; neither did he submit any consignment nor given any intimation to the 25 Insurance Company or lodge any complaint to the said effect. It is stated that the documents in the claim file of M/S Silk Screen did not contain his signatures and the handwriting opinion has also not confirmed this and the GEQD has not supported the prosecution on this count; attention has also been drawn to the version of DW 5 Ravinder Singh who was familiar with the handwriting of A-4 who has categorically stated that the signatures on the disputed documents qua accused Deepak Handa i.e Q- 23 to Q-27 in the claim file of M/S Silk Screen are not the signatures of Deepak Handa. It is stated that there is no doubt that one cheque had been given to him by co accused Sanjay Raina but the background of this has been explained by DW 5 in his version as DW 5 had infact taken a loan of Rs.50,000/- from Deepak Handa and this cheque of Rs.20080/- which is the disputed amount had been received by Deepak Handa and deposited in his 26 account on the genuine and bonafide belief that this amount was the return of loan which he had advanced to DW 5 Ravinder Singh and given to him by his co brother Sanjay Raina; it is stated that even otherwise this circumstance by itself is not sufficient to nail the accused for this criminal offence and in the absence of mens rea no offence under the criminal law is made out. Ld. Defence counsel has placed reliance upon a judgment of the Hon'ble Apex Court reported in AIR 1963 SC 1572 to substantiate his submission that the fraud necessarily involves two elements i.e deceit and injury to person deceived and where there is no injury to the person deceived accused cannot be held guilty under Section 467 and 468 of the IPC which is so in the instant case. Reliance has also been placed upon a judgment of the Hon'ble High Court of Patna reported in 1984 Crl. L.J. 878 wherein it had been held that when the terms of 27 charges are pointed to the specific act of an accused brandished as illegal and motivated, the court must confine itself to those specific allegations and should consider the facts which are relevant, connected and concerned with the allegation and should admit in evidence only those connected facts which are otherwise relevant or required to be introduced for a decision on the charge brought against the accused. It is stated that if the offence of forgery is not proved there could be no consequential offence of cheating and for this proposition reliance has been placed upon a judgment of the Hon'ble Apex Court reported in 1997 Crl. L.J. 724. Reliance has also been placed upon a judgment of the Hon'ble Apex Court reported in 1992 Crl. L.J. 3587 which is an appeal against the final conviction where the accused was an LIC Agent and had been charged by the LIC for cheating on the ground that the insurance policies had been 28 got issued on the basis of fake and forged documents but in this case it was held that when it had been proved that forgery had been committed by the co accused, this accused was held entitled to an acquittal; it had been further held that the premium commission and bonus permissible to the accused were in accordance with the law and was only in normal course. It is stated that by applying the ratio of this judgment, in this case also accused Deepak Handa has received this cheque in normal course and under the bonafide belief that this was a return of the loan which he had advanced to Ravinder Singh (DW5) and was being repaid to him by his co brother Sanjay Raina.
(16) Rebuttal arguments have also been heard and the written submissions filed by the prosecution have also been perused. I have also carefully gone through the record of the case. (17) This case relates to the passing of 29 seven fictitious Marine Claims in favour of six bogus companies on the basis of false and forged documents and the role of each of the accused persons in relation to these seven claims in my view has been proved by the prosecution. (18) PW 2 V.K. Bajaj the Administrative Officer (Vigilance) NIC has on oath stated that he had handed over the files relating to the NIC vide seizure memo Ex. PW2/A to the CBI and as per the record A-1 L.K. Gupta was the then Branch Manager processing these files. In the cross examination of this witness it has been elicited that these were seven files Ex. P-1 to Ex. P-7 relating to the seven Marine Claims i.e Ex. P-1 relating to the Marine Claim of M/S Sonia & Company; Ex. P-2 is the file of M/S Silk Screen; Ex. P-3 is the file relating to M/S Abha International; Ex. P-4 is the file of M/S Sarthak Enterprises; Ex. P-5 is the file of M/S Rajeev Kumar and Company; Ex. P-6 is 30 another file relating to the Marine Claim of M/S Abha International; Ex. P-7 is the claim file of M/S SKW & Company. PW 8 A.L. Gambhir the then Administrative Officer (Vigilance Department) NIC has stated that he had conducted the surprise check at NIC Kapashera during the year 1998-99 and found that certain claims seems to be fictitious because papers were not available in the file and he found Power of Attorney, Indemnity Bond, Carrier Receipt etc. were missing in the claim files. PW 5 Geeta Sharma posted as the then Branch Manager, NIC, Kapashera was shown all the claim files i.e Ex. P-1 of M/S Sonia & Company wherein she has stated that no goods receipt and letter of subrogation was in the file but only the survey report is available. On seeing the claim file Ex. P-2 of M/S Silk Screen this witness has stated that in this file letter of subrogation and photocopy of goods receipt is there; on seeing the claim file Ex. P-3 of M/S Abha 31 International she has stated that no insurance agent has been mentioned in this file. On seeing the claim file Ex. P-4 of M/S Sarthak Enterprises, she has stated that letter of subrogation and photocopy of goods receipt is available; the claim file Ex. P-5 of M/S Rajeev Kumar and Company has also been shown to this witness PW 5 and on a perusal of this file, she has stated that goods receipt is not available but letter of subrogation is available; on seeing the claim file Ex. P-6 of M/S Abha International, she has stated that it did not contain the goods receipt or letter of subrogation except the survey report; on seeing the claim file Ex. P-7 of M/S SKW & Company, she has stated that in this file the goods receipt and letter of subrogation is available but there is no correspondence available in the file. The procedure of the processing of Marine Claims has been explained by PW 9 Jagdish Narayan Meena who has 32 stated that in case of Marine Claims the insured can come directly or through a agent for insurance of the consignment; if insured comes directly to the office, the concerned clerk makes the paper like cover note and the person who is authorized for signing the paper signs the cover note and thereafter the cashier will issue a receipt and later on after receipt of goods receipt concerned clerk will issue the policy. He has further detailed the procedure in case of loss or theft of the consignment. This position has been reiterated by PW 15 Atish Pathak working as Assistant Manager, NIC who has stated that there are two types of policies issued in Marine Department; one is specific policy and the other one is open policy and in both these policies normally a proposal form is obtained from the insured and the system of the claim in respect of both the policies are almost same. He has corroborated the procedure as detailed 33 by PW 9.
(19) I shall now deal with each separately and the role of the each of the accused persons qua the said claims.
(i) Claim of M/S Sonia & Company:
Claim of M/S Sonia & Company, file of which is Ex. P-1, consignee was registered at 18 Radhey Shyam Park Delhi-52 as also at B-106, DDA Commercial Complex, Jhandewalan, New Delhi and the owner was shown as A-2 Sanjay Raina; the consignor was M/S Paras Chemicals Trading Company 70/1 Janmabhumi Marg, Mumbai; the transporters of the company has been detailed as M/S Rahul Roadlines but there is no address available of the transporter; surveyor has been shown to be M/S Z.K. Consultancy Service Pvt Ltd B-106 Cycle Market, Jhandewalan, New Delhi; there was no recovery agent.
PW 4 Pushpender Kumar working as the 34 then Assistant, NIC has identified L.K. Gupta as the Branch Manager working in the Kapashera Branch office of the NIC and incharge of the Marine Claims; he has stated that cheque for Rs.27,300/- Ex. PW4/D in favour of M/S Sonia & Company which is signed by him at point A and by A-1 L.K. Gupta at point B. PW 5 Geeta Sharma was the then Branch Manager NIC Kapashera. She has stated that the claim file of M/S Sonia & Company did not contain the goods receipt and letter of subrogation except for the surveyor report submitted by M/S Z.K. Consultancy where the code of the insurance agent has been mentioned as 320/PJ. In this regard version of PW 12 Poonam Jain is relevant who has categorically stated that her husband Rakesh Jain had never dealt with any company by the name of M/s Sonia & Company. The version of DW 4 H.K. Sharma is also relevant who has produced the list containing the name of surveyors Ex. DW4/PA and as 35 per the list produced by him M/s ZK Consultancy Pvt Ltd situated at B-106 Cycle Market Jhandewalan, Delhi was not an approved surveyor. To the same effect is the version of DW 6 and DW 7 who have stated that they have not heard of any firm by the name of M/s ZK Consultancy Pvt Ltd; these DWs infact have deposed against the interest of the accused himself. PW 31 Y.T. Barme has stated that during the year 1996 to 1999 he was working as a Postman, GPO, Mumbai and there was no company by the name of M/S Paras Chemical Trading Company registered at 70/1 Janambhumi Marg, Mumbai shown to be the name of the consignor which was fictitious. M/S Rahul Roadlines was shown as the transporter but no address was available in the file. PW 20 Sabyasachi Mohanty the then Assistant Manager in HDFC Bank Limited Model Town, Sonepat, Haryana has proved that the A/c No. 0270301002 in HDFC Bank in the name of Sonia & Company was under the 36 proprietorship of A-2 Sanjay Raina and cheque Ex. PW4/D issued by NIC for the sum of Rs.27,300/- was deposited in this account and credited as per the statement of account Ex. PW20/B. This witness has also proved that cheque No. 034381 dated 22.04.1996 for the amount of Rs. 2220/- was issued from the account of Sonia & Company which was owned by A-2 in favour of NIC substantiating the version of the prosecution that A-2 Sanjay Raina was making the payment himself on behalf of the recovery agent on behalf of NIC which was against the principles and norms. PW 30 Ramesh Chand from the GEQD has proved the opinion Ex. PW30/S vide which it had categorically been opined that Q-1 Ex. PW30/A i.e cheque No. 034381 of HDFC Bank dated 22.04.99 for Rs. 2220/- in favour of NIC was under the signatures of A-2. Thus it was the consignee i.e. A-2 Sanjay Raina who himself had made the payment to NIC for the recovery whereas it was only the 37 recovery agent who could make the payment after collecting the same from the transporter for any loss but in this case the consignee himself i.e A- 2 had made the payment of the said amount on behalf of the recovery agent; the consignee could not be the recovery agent. It is thus clear that M/S Sonia & Company was a fictitious firm. The cheque of Rs. 27,300/- signed by A-1 as already stated had been credited into the account of A-2 Sanjay Raina and thus misappropriated by him.
(ii) Claim of M/S Rajeev Kumar & Company:
Claim of M/S Rajeev Kumar & Company, file of which is Ex. P-5, consignee was registered at 18 Radhey Shyam Park Delhi-51 as also 18 Radhey Shyam Park Delhi-32 and the owner was shown as A-3 Rajeev Kumar Goel; the consignor was M/S Paras Chemicals Trading Company 70/1 Janmabhumi Marg, Mumbai; the transporters of the company has been detailed as M/S Narang Road Carriers, Gali No. 3, 38 Aruna Park, Delhi-92; there was no address of any surveyor in the file; the recovery agent has been shown to be Vinod Kaul F-269 C, Dilshad Garden.
PW 4 Pushpender Kumar the then Assistant in the NIC has stated that the claim of
Rs.20080/- of M/S Rajeev Kumar & Company owned by A-3 Rajeev Kumar Goel Ex. PW4/G was passed by A-1. PW 5 Geeta Sharma has deposed that the claim file of M/S Rajeev Kumar and Company Ex. P-5 did not contain the goods receipt except the letter of subrogation; the code of the insurance agent is SG/Direct and the name of the Insurance Agent may be Shalini Gupta; the consignor of this Marine Claim has been shown as M/S Paras Chemical Trading Company registered at 70/1 Janambhumi Marg, Mumbai and the version of PW 31 Y.T. Barme is again relevant in this regard who has stated that during the year 1996 to 1999 he was working as a Postman, GPO, Mumbai and there was no company by the name 39 of M/S Paras Chemical Trading Company registered at 70/1 Janambhumi Marg, Mumbai. The name of the transporter of this consignment has been mentioned as M/S Narang Road Carriers, Gali No. 3, Aruna Park, Delhi-92 and the testimony of PW 3 Sharda Sharma is relevant in this regard who has stated that she is the owner of A-143, Aruna Park, Shakarpur, Delhi-92 and she had never rented out her premises to the firm M/S Narang Roadlines and this premises is owned by her and she is living there since the year 1992. There was no name of the surveyor mentioned in the claim file of M/S Rajeev Kumar & Company i.e. Ex. P-2. The recovery agent has been stated to be Vinod Kaul F-269 C Dilshad Garden, Delhi which is also the residential address of A-2 Sanjay Raina. PW 16 A.B. Dutta Divisional Manager, NIC has stated that the name of M/S Vinod Kaul has not been mentioned in the approved list of Recovery Agents Ex. PW16/A-1. DW 8 Devi Singh in 40 this regard has stated that a person cannot be appointed as recovery agent in his own claim and that the recovery agents who have been empaneled only can be appointed as recovery agents. He has further stated that the Branch Manager cannot appoint person of his own choice as recovery agent. PW 17 Radhey Shyam Manager, Bank of Maharashtra, Karol Bagh, Delhi has proved on record that the A/C No. 14381 was in the name of Vinod Kaul. PW 14 Ramesh Kumar Gakhar Senior Manager, Union Bank of India, Rohtak Haryana has stated that cheque Ex. PW14/A issued by the NIC in favour of Raj Kumar Goel was debited in the account of NIC. PW 30 Ramesh Chand from GEQD has proved that A/C No. 2510 of M/S Raj Kumar Goyal opened by A-3 at SBI, Jhandewalan Branch, Delhi and A-2 had introduced this account. It is thus established that this claim of Rs.20800/- was obtained by A-3 Rajeev Kumar Goel in conspiracy with A-2 Sanjay Raina 41 which had been passed blindly by A-1 L.K. Gupta with the object to cheat NIC with fraudulent intention.
(iii) Claim of M/S Silk Screen:
Claim of M/S Silk Screen, file of
which is Ex. P-2, consignee was registered at 61 F Ber Sarai, Opposite JNU, New Delhi-16 and the owner was shown as A-4 Deepak Handa; the consignor was M/S L.A. Marketting Agency 164 Modi Street, 4th Floor Fort, Mumbai; the transporters of the company has been detailed as M/S Goel Roadlines A-143 Gali NO. 3, Aruna Park, Shakarpur, Delhi-92; surveyor has been shown to be M/S Z.K. Consultancy Service Pvt Ltd B-106 Cycle Market, Jhandewalan, New Delhi; the recovery agent has been shown to be Vinod Kaul F-269 C, Dilshad Garden. A-4 Deepak Handa has been shown to be the proprietor of M/S Silk Screen registered at 61-F Ber Sarai, Opposite JNU, New Delhi.42
PW 4 Pushpender Kumar working as Assistant in NIC has stated that he had processed the claim file of M/S Silk Screen which was owned by A-4 Deepak Handa and he had passed the claim of Rs.20080/- vide cheque dated 20.10.95 Ex. PW4/F. PW 5 Geeta Sharma the then Branch Manager NIC Kapashera has stated that the claim of M/S Silk Screen Ex. P-2 contains the letter of subrogation and photocopy of goods receipt dated 23.9.95 showing the name of the consignor M/S L.A. Marketing Agency which was registered at 164 Modi Street, 4th Floor, FORT, Mumbai. The version of PW 1 M.I. Thomas is to the effect that the society at 164, Modi Street, Fort, Mumbai is a commercial building which is known as Zaveri Chambers and his office is at the fourth floor of this society and to his knowledge M/s L.A. Marketing Agency was never a tenant in the said building establishing the submission of the prosecution that this was a 43 fictitious firm. In this regard version of PW 12 Poonam Jain is again relevant who has categorically stated that her husband Rakesh Jain had never dealt with any company by the name of M/s Silk Screen. PW 14 Ramesh Kumar Gakhar has stated that the cheque Ex. PW4/F issued by NIC from the A/C No. 23017 in favour of M/s Silk Screen which was owned by A-4 and this amount has been debited in the account of NIC. PW 16 A.B. Dutta the then Development Officer NIC has stated that M/S Vinod Kaul was never in the approved list of recovery agents Ex. PW16/A-1 who has been shown as recovery agent. DW 8 Devi Singh in this regard has stated that a person cannot be appointed as recovery agent in his own claim and that the recovery agents who have been empaneled only can be appointed as recovery agents. He has further stated that the Branch Manager cannot appoint person of his own choice as recovery agent.
Statement of DW 4 H.K. Sharma is to the effect that 44 M/s Z.K. Consultancy Pvt Ltd registered at B-106 Cycle Market, Jhandewalan, Delhi was not approved surveyor. DW 6 P.K. Jain and DW 7 Arun Jain have both stated that they have not heard any firm by the name of M/S Z.K. Consultancy Pvt Ltd. PW 30 Ramesh Chand from GEQD has proved that the Account Opening Form Q-22 Ex.PW27/A has been signed by A-4 Deepak Handa in his own handwriting pursuant to which Rs.20080/- was deposited in this account and withdrawn by him. In this case the transporter has been shown to be M/S Goel Roadlines A-143 Gali No. 3, Aruna Park, Shakarpur, Delhi-92 and the testimony of PW 3 Sharda Sharma is again relevant in this regard who has stated that she is the owner of A-143, Aruna Park, Shakarpur, Delhi-92 and she had never rented out her premises to the firms M/S Goel Roadlines and this premises is owned by her and she is living there since the year 1992. It is thus clear that the name of a non existent firm has 45 been used for getting this Marine Claim passed and A-4 had obtained this amount of Rs.20080/- in pursuance of the same in conspiracy with A-1 and A-
2.
(iv) Claim of M/S Sarthak Enterprises:
Claim of M/S Sarthak Enterprises, file of which is Ex. P-4, consignee was registered at 61 F Ber Sarai, Opposite JNU, New Delhi-16 and the owner was shown as A-2 Sanjay Raina; the consignor was M/S Topaz Card Manufacturing Co. 205/207, Khaidelkar Road, Mumbai; the transporters of the company has been detailed as M/S Bullet Road Carriers C-164 Ganesh Nagar No. 2, Shakarpur, Delhi-92; surveyor has been shown to be M/S Z.K. Consultancy Service Pvt Ltd B-106 Cycle Market, Jhandewalan, New Delhi; there was no recovery agent. A-2 Sanjay Raina was shown to be owner of M/S Sarthak Enterprises registered at 61-F Ber Sarai, Opposite JNU, New Delhi.46
PW 4 Pushpender Kumar working as Assistant in the NIC has stated that the cheque No. 310138 dated 13.06.1997 for Rs. 46300/- Ex. PW4/B in favour of M/s Sarthak Enterprises owned by A-2 is signed by A-1 as also another cheque No. 310139 dated 13.06.1997 in the name of Z.K. Consultancy for the amount of Rs. 2594/- Ex. PW4/C which was the survey fees in this case. PW 5 Geeta Sharma has stated that the claim file of M/S Sarthak Enterprises Ex. P-4 contains the letter of subrogation and photocopy of goods receipt dated
03.05.97 of Bullet Road Carrier showing the name of the consignor as M/S Topaz Card Manufacturing Company and the code of Insurance agent is mentioned as 320/34. Testimony of PW 6 Prem Gambhir is relevant in this regard. He has stated that he was the owner of Transport Company M/S Bullet Road Carrier at Jhandewalan Road, Motia Khan Chowk and had a tempo to run the transport business. He has 47 further stated that the said transport company was closed in the year 1996, thus negativing this submission that M/S Bullet Road Carrier could be the transporter of this consignment; he has further stated that he never transported his goods nor received any letter or any correspondence from M/s Sarthak Enterprises and has denied having received a letter on the letter head of M/s Sarthak Enterprises dated 28.05.1997 with reference to Goods Receipt dated 03.05.1997 which was not issued by him; he has further denied that the letter dated 30.05.1997 under the letter head of Bullet Road Carrier was issued by him; he had also denied his signatures on the letter showing the name of the consignor as M/S Topaz Card Manufacturing Company. The owner of this Marine Claim was shown to be A-2 Sanjay Raina. The version of PW 26 Shalini Gupta is relevant in this regard. She has stated that that she was working as insurance agent in NIC 48 Kapashera and she never introduced M/s Sarthak Enterprises for Marine Claim and she had never met A-2 Sanjay Raina substantiating the averment of the prosecution that this Marine Claim had been passed in the name of a fictitious firm. M/S Z.K. Consultancy was shown to be the surveyor but as per the version of DW 4 as already discussed Supra who has produced the list containing the name of surveyors Ex. DW4/PA and as per the list produced by him M/s ZK Consultancy Pvt Ltd situated at B-106 Cycle Market Jhandewalan, Delhi was not an approved surveyor. This has also been confirmed by the deposition of DW 6 and DW 7 who have stated in their cross examination that they have not heard of any firm by the name of M/s ZK Consultancy Pvt Ltd. Testimony of PW 11 Totar Mal Devi Chand Jain is also relevant in this regard who has stated that he was the owner of shop Topaz Card Manufacturing Company situated at 205/207 Khaidilka Road, Mumbai 49 and was doing the business of selling wedding, visiting and greeting card etc.; he has further stated that the letter pad Ex. PW11/A does not pertain to his shop and is a forged bill and the telephone number and sale tax number printed on this forged bill is also incorrect and he had never dealt with any firm by the name of M/s Sarthak Enterprises. This evidence clearly shows that A-2 had flied this forged bill for getting this Marine Claim passed. PW 30 Ramesh Chand from GEQD has opined that the cheque for Rs.46300/- was credited on 17.6.97 vide pay in slip Ex. PW30/E signed at Q- 31 by A-2 in his account at Canara Bank which was issued by the NIC towards the settlement of claim of M/S Sarthak Enterprises under the signatures of A-1. The GEQD has also opined that Ex. PW30/F-1 to F-3 i.e Q-32 to Q-34 and Ex. PW30/F-4 and F-5 i.e. Q-43 & Q-44 are the signatures of A-2 showing that A-2 had taken this Marine Policy in the name of M/S 50 Sarthak Enterprises and had thereafter lodged the claim. It is also relevant to state that the address of M/S Sarthak Enterprises i.e. 61-F Ber Sarai, Opposite JNU, New Delhi was also the address of M/S Silk Screen i.e the firm of A-4 Deepak Handa who is the co brother of A-2 Sanjay Raina. In this case no recovery agent had also been appointed and none is available as per the record of the claim file Ex. P-5. It is thus clear that in this case A- 2 in conspiracy with A-1 had obtained this amount fraudulently without having any transaction with the consignor M/S Topaj Card Manufacturing Company the owner of whom has denied any dealings with M/S Sarthak Enterprises as has been discussed Supra.
(v) Claim of M/S SKW & Company:
Claim of M/S SKW & Company file of
which is Ex. P-7, consignee was registered at A-143 Gali No. 3 Aruna Park, Shakarpur, Delhi-92 and the owner was shown as A-2 Sanjay Raina; the consignor 51 was not available in the file; the transporters of the company has been detailed as M/S Bullet Road Carriers but there is no address available of the transporter; surveyor has been shown to be M/S Z.K. Consultancy Service Pvt Ltd B-106 Cycle Market, Jhandewalan, New Delhi; the recovery agent has been shown to be M/S Recovery India International, 1899-B, 2nd Floor, K.M. Pur, Delhi. A-2 Sanjay Raina was shown to be the partner of M/S SKW & Company registered at A-143, Gali No. 3, Aruna Park, Shakarpur, Delhi.
PW 5 Geeta Sharma has stated that the claim file of M/S SKW & Company Ex. P-7 does not contain the goods receipt, letter of subrogation and the correspondence between NIC and the insured and only the surveyor report is available and the code of insurance agent is mentioned as P-10/26 which pertains to Riti Arora. Testimony of PW 7 Ashok Kumar Jain is relevant in this regard who has 52 stated that he had never introduced Riti Arora as an agent in the Marine Claim of the firm M/s SKW & Company showing the fraudulent means adopted by A-2 Sanjay Raina to get this false Marine Claim passed with the aid of A-1. The version of PW 10 Ramesh Arora father of Riti Arora is also relevant who has stated that she had been introduced as NIC agent and she got married in the year 1995 and since then she is living in Banaras. The version of PW 6 Prem Gambhir is also relevant in this regard who has stated that he was the owner of Transport Company named Bullet Road Carrier at Jhandewalan Road, Motia Khan Chowk and had a tempo to run the transport business and the said transport company was closed in the year 1996 and he had never dealt with any firm by the name of M/S SKW & Company. Recovery Agent has been shown as M/S Recovery India International and as per PW 16 A.B. Dutta this firm was an approved Recovery Agent 53 under the proprietorship of PW 18 Rakesh Mudgil who has stated that he had written to M/S Bullet Road Carriers for the settlement of claim but had not received any response from them and subsequently he received an information from A-1 that the payment of recovery has been received of Rs. 3451/- from Jain Cooperative Bank Ltd showing that the payment of recovery was arranged by A-2 himself for the claim of M/s SKW & Company. In this context version of PW 19 Nishant LDC Jain Cooperative Bank is to the effect that pay order of Rs.3451/- had been purchased and debited into the account of A-2 Sanjay Raina. PW 14 Ramesh Kumar Gakhar then then Branch Manager Union Bank of India has stated that cheque of Rs.47840/- Ex. PW9/E was issued by NIC on 14.7.98 in favour of M/S SKW & Company which had been debited showing that this amount had been encashed by A-2 Sanjay Raina. In this regard the version of DW 4 H.K. Sharma is 54 again relevant as already discussed Supra who has produced the list Ex. DW4/PA containing the name of surveyors and as per the list produced by him M/s ZK Consultancy Pvt Ltd situated at B-106 Cycle Market Jhandewalan, Delhi was not the approved surveyor. To the same effect is the version of DW 6 and DW 7 who have stated that they have not heard of any firm by the name of M/s ZK Consultancy Pvt Ltd. In this regard the testimony of PW 3 Sharda Sharma is again relevant who has stated that she is the owner of A-143, Aruna Park, Shakarpur, Delhi-92 and she had never rented out her premises to the firms M/S SKW & Company and this premises is owned by her and she is living there since the year 1992. PW 30 Ramesh Chand has opined that A-2 had lodged the claim for Rs.47,840/- in the name of SKW & Company as is clear from Q-49 Ex. PW30/H-1; it has further been opined by PW 30 that A-2 had also signed at Q-50 Ex.PW30/H-2 while receiving the 55 claim of Rs.47,840/-. It has also been confirmed by the GEQD that the survey fee of Rs.3451 had been received by A-2 and he had signed at Q-46 showing that he himself was getting his claim. PW 19 Nishant working as LDC in the Jain Cooperative Bank Gandhi Nagar New Delhi has also corroborated this version; the pay order against this application was prepared by the bank and this amount of pay order was debited from the said account. This claim was thus passed fraudulently by A-1 in connivance with A-2.
(vi) Claim of M/S Abha International Policy No. 304/98:
Claim of M/S Abha International Policy No. 304/98 file of which is Ex. P-3, consignee was registered at A-143 Gali NO. 3, Aruna Park, Shakarpur, Delhi-92 as also B-106 DDA Commercial Complex, Jhandewalan, New Delhi and the owner was shown as A-2 Sanjay Raina; the consignor was M/S 56 L.A. Marketting Agency 164 Modi Street, 4th Floor Fort, Mumbai; the transporters of the company has been detailed as M/S Nishant Road Transport but there is no address available of the transporter; surveyor has been shown to be M/S Raj Kumar Goel owned by Raj Kumar Goel 95-A Cycle Market, Commercial Complex, Jhandewalan, Delhi-55; there was no recovery agent. A-2 Sanjay Raina was shown to be owner of M/S Abha International registered at A-143 Gali NO. 3, Aruna Park, Shakarpur, Delhi-92 as also B-106 DDA Commercial Complex, Jhandewalan, New Delhi.
The version of PW 3 Sharda Sharma is again relevant in this regard who has stated that she is the owner of A-143, Aruna Park, Shakarpur, Delhi-92 and she had never rented out her premises to the firms M/s Abha International and this premises is owned by her and she is living there since the year 1992 and there was no such firm in existence. The 57 consignor has been shown to be M/S L.A. Marketting Agency 164 Modi Street, 4th Floor Fort, Mumbai. In this regard version of PW 1 M.I. Thomas is again relevant who has stated that the society at 164, Modi Street, Fort, Mumbai is a commercial building which is known as Zaveri Chambers and his office is at the fourth floor of this society and to his knowledge M/s L.A. Marketing Agency was never a tenant in the said building establishing the submission of the prosecution that this was a fictitious firm. The transporter of this consignment has been shown to be M/S Nishant Road Transport but there is no address available of this transport company in the file. In this case surveyor was shown to be M/S Raj Kumar Goel. Statement of PW 14 Ramesh Kumar Gakhar is to the effect that cheque for Rs. 47,400/- Ex. PW9/F was issued from the NIC in the name of M/S Abha International which was encashed by A-2 Sanjay 58 Raina. PW 30 Ramesh Chand from GEQD has proved that vide pay in slip Ex. PW9/F a sum of Rs.47,400/- was deposited in the account of M/S Abha International which had been floated by A-2 Sanjay Raina. The GEQD has further opined that A-2 had issued a cheque of Rs.1232/- from his account at Oriental Bank of Commerce and his signatures on the cheque Ex. PW30/L Q-53 to obtain policy in the name of M/S Abha International and this is evident from the claim file Ex. P-6. The letter dated 22.9.98 on the letter head of M/S Abha International has been signed by A-2 at point Q-54 and this letter states that the material dispatched by the supplier M/S LA Marketing Agency Bombay through the transporter M/S Nishant Road Transport had been received by him in a leaked condition and requested for registration of the claim has been made; there is no address available of the transport company in the claim file. PW 32 G.R. 59 Kohali the then Development Officer has stated that he knows A-2 who was his agent in LIC and the account of M/S Abha International was introduced by his wife Smt. Prem Lata though she was not knowing A-2 and that A-2 was running any company by the name of M/s Abha International. PW 26 Shalini Gupta has stated that she was working as insurance agent in NIC Kapashera and she never introduced M/s Abha International for Marine Claim and that she had never met A-2 Sanjay Raina. As per the version of DW 4 H.K. Sharma M/s Rajeev Kumar Goyal 95 A Cycle Market Commercial Complex, Jhandewalan, Delhi was not the approved surveyors. No Recovery Agent was available in the file. Thus it is clear that this claim was a false claim and the Marine Claim was fraudulently obtained by A-2 in conspiracy with A-1 and A-3.
(vii) Claim of M/S Abha International Policy No. 69/96:
60
Claim of M/S Abha International Policy No. 69/96 file of which is Ex. P-6, consignee was registered at A-143 Gali NO. 3, Aruna Park, Shakarpur, Delhi-92 as also B-106 DDA Commercial Complex, Jhandewalan, New Delhi and the owner was shown as A-2 Sanjay Raina; the consignor was M/S L.A. Marketting Agency, Bombay; the transporters of the company has been detailed as M/S Narang Road Carriers, Gali No. 3, Aruna Park, Shakarpur, Delhi; surveyor has been shown to be M/S surveyor has been shown to be M/S Z.K. Consultancy Service Pvt Ltd B-106 Cycle Market, Jhandewalan, New Delhi; there was no recovery agent. A-2 Sanjay Raina was shown to be owner of M/S Abha International registered at A-143 Gali NO. 3, Aruna Park, Shakarpur, Delhi-92.
The version of PW 3 Sharda Sharma as already discussed Supra and she being the owner of A-143, Aruna Park, Shakarpur, Delhi-92 has stated 61 that she had never rented out her premises to the firms M/s Abha International and this premises is owned by her and she is living there since the year 1992 and there was no such firm in existence. The consignor has been shown to be M/S L.A. Marketting Agency 164 Modi Street, 4th Floor Fort, Mumbai. In this regard version of PW 1 M.I. Thomas is again relevant who has stated that the society at 164, Modi Street, Fort, Mumbai is a commercial building which is known as Zaveri Chambers and his office is at the fourth floor of this society and to the best of his knowledge M/s L.A. Marketing Agency was never a tenant in the said building. The transporter of this consignment has been shown to be M/S Narang Road Carriers Gali No. 3 Aruna Park Shakarpur, Delhi which is also the address of the consignee and the version of PW 3 Sharda Sharma who has stated that there was no transport company by the name of M/S Narang Road Carriers at the said 62 address and she is the owner of the said premises and was residing at the abovesaid address since the year 1992. In this case surveyor was shown to be M/S Z.K. Consultancy Services Pvt Ltd. As already discussed Supra version of DW 4, DW 6 and DW 7 is relevant in this regard; DW 4 has stated that as per the list of the surveyors Ex. DW4/PA M/s ZK Consultancy Pvt Ltd was not an approved surveyor. DW 6 and DW 7 have both stated that they have not heard of any company by the name of M/S Z.K. Consultancy Services Pvt Ltd. PW 30 Ramesh Chand has opined that the cheque in the sum of Rs.28,180/- was the amount of loss which had been opined and the pay in slip Ex. PW30/J was filled in by A-2 who had signed at point Q-51 and deposited the cheque of Rs.28,180/- favouring M/S Abha International issued by NIC and encashed by him. PW 26 Shalini Gupta has stated that she was working as insurance agent in NIC Kapashera and she never 63 introduced M/s Abha International for Marine Claim and that she had never met A-2 Sanjay Raina. M/S Z.K. Consultancy Services Pvt Ltd B-106 Cycle Market, Jhandewalan, New Delhi which has been appointed as a surveyor in this case; the survey report has been signed by A-2 which has again been confirmed vide the opinion of the GEQD. The version of DW 2 Lalit Kumar Dubey is relevant in this regard who has stated that the firm M/s Abha International was functioning from A-143, Aruna Park, Gali No. 3, Laxmi Nagar and 106-B Jhandewalan, New Delhi and that he used to pay the rent towards the premise at Aruna Park to Ms. Sharda Sharma but this factum has been denied by PW
3 Sharda Sharma and there is no reason as to why the version of PW 3 is disbelieved qua the version of DW 2. It is thus clear that the consignor M/S LA Marketting was a fictitious entity and there was no transporter by the name of M/S Narang Road 64 Carriers at Shakarpur, clearly showing that a fraudulent claim had been encashed by A-2 in conspiracy with A-1 causing a wrongful loss to the NIC.
(20) In my view it has been established by the prosecution that A-1 L.K. Gupta in conspiracy and in connivance with the other accused persons namely A-2 to A-4 had got passed the aforestated seven fictitious Marine Claims qua six firms/companies on the basis of false and forged documents and thereby he had caused a wrongful loss to the NIC and a corresponding wrongful gain to themselves.
(21) The submission of ld. Defence Counsel Sh. R.K. Handoo on behalf of A-2 Sanjay Raina that there has been a misjoinder of charges and the seven Marine Claims of the six consignments could not have been joined together in single charge sheet, is, in my view a fallacious argument as 65 Section 219 of the Cr.P.C no doubt speaks of three offences of the same kind committed within one year which may be charged together at one trial; Section 223 (d) of the Cr.P.C however clearly states that persons accused of different offences committed in the course of the same transaction may be charged jointly; in this case the passing of the aforestated seven Marine Claims by A-1 were all inter linked and inter connected and related to a single transaction and as such this objection of ld. Defence counsel, in my view, has no merit; the prima facie test being unity and continuity of purpose; AIR 1947 Patna page 212 is relied upon. Even otherwise the submission of ld. Spl. PP that under the provisions of Section 464 of the Cr.P.C the effect of omission to frame or absence of or error in charge would not in any manner effect the finding, sentence or order by a court of competent jurisdiction including irregularity in 66 the mis-joinder of charges unless a failure of justice has been occasioned and in this case even no argument on failure of justice has been propounded by ld. Defence counsel and as such this objection of ld. Defence counsel is without any force and I find force in the submission of ld. Spl. PP.
(22) The further submission of ld. Defence counsel for A-2 that opinion of the handwriting expert cannot be taken into account as the provisions of Section 73 of the Cr.P.C relating to the taking of a specimen handwriting of an accused only relate to the proceedings when the matter is before the court i.e during the inquiry or trial and in the instant case the specimen handwriting of the accused having been obtained in police custody for which there is no provision in law and such handwriting examined by the handwriting expert cannot be taken into account is also in my view a 67 fallacious argument; Section 45 of the Evidence Act clearly states that the opinion of an expert is a relevant fact which includes the opinion of handwriting expert; in this case the specimen handwriting of A-2 had been taken in the presence of PW23 and PW25; the specimen handwriting of A-3 had been taken in the presence of PW24 and PW28; the specimen handwriting of A-4 had been taken in the presence of PW22 and besides the fact that after the specimen handwriting had been obtained in the year 2002 no objection had been raised by any of the accused and no such averment has till date come on record that these specimen handwritings were obtained either under coercion or pressure and the said PWs i.e PW22, PW23, PW24, PW25 and PW28 also not having been cross examined in this context, this argument now raised by ld. Defence counsel, is clearly an after thought; nothing has also been elicited in the cross examination of PW 68 30 which could discredit his testimony and there is no reason as to why he would give a false opinion; no suggestion has also been given to PW 30 by any of the defence counsels on behalf of the accused that he will be deposing falsely. It is relevant to state that no defence evidence has also been led in the nature of any other expert evidence to discredit the testimony of PW 30; as such this argument deserves no weight and is accordingly rejected.
(23) In a judgment reported in 1980 SCC (Cr.) 330 it has been held that the evidence of the handwriting expert need not invariably be corroborated and it is for the court concerned to accept such an uncorroborated evidence or not. In AIR 1961 SC 1808 it has categorically been held by the Hon'ble Apex Court that giving specimen writings is not violative of Article 20 (3) of the Constitution.
69(24) The argument of ld. Defence counsel for A-4 Deepak Handa that he has been falsely roped in is also an erroneous argument as is evident from the documentary evidence which has been proved by the prosecution establishing his role as Proprietor of M/S Silk Screen and the cheque in the sum of Rs.20080/- which was issued by the NIC was deposited in his account. Although it is correct that the GEQD has not given any opinion on Q-23 to Q-27 the purported handwriting of A-4 on the Power of Attorney and the letter of subrogation but Q-22 has admittedly been signed by A-4 and this has been confirmed by the GEQD in its report Ex. PW30/S and a perusal of Q-22 shows that it is the account opening form of M/S Silk Screen signed by A-4 as Deepak Handa. The submission of ld. Defence counsel that the GEQD has not specifically opined on the words 'Proprietor' is of little consequence in view of the fact that GEQD has opined that Q-22 which is 70 the account opening form of M/S Silk Screen and A-4 has signed it and this was after making a comparison of his specimen handwriting. Admittedly even as per the case of A-4 he had received this sum of Rs.20080/- by way of a cheque which had been issued by the NIC and this amount had been deposited in his account and thereafter withdrawn and the after thought defence taken up by A-4 that this was a refund of the loan which he had advanced to DW5, is clearly false as even presuming that a loan of Rs.50,000/- had been advanced by A-4 to DW 5, yet a sum of Rs.20080/- being returned i.e a specified amount and not a casual or a wholesome figure of Rs.20,000/- or Rs.30,000/- and a specified amount i.e counted in Rs. upto Rs.20080/- could not be a part of the return of the loan amount and even otherwise how and in what circumstances this alleged refund of loan was accepted by A-4 by way of cheque which had been 71 issued by the NIC, is again difficult to accept as an explanation that it was by way of refund of a loan; DW 5 has also not produced any documentary evidence to substantiate this averment that he had been advanced a loan of Rs.50,000/- by A-4; it is also an admitted position that A-2 and A-4 are co brothers; it has also been established by the prosecution that the account opening form of M/S Silk Screen was signed by A-4 and cheque was deposited in this account of Rs.20080/- which was encashed by A-4 and the other documents in the seizure file of M/S Silk Screen Ex. P-2 has shown that the name of the consignor M/S LA Marketing Agency is a non existent entity and so also the transporter M/S Goel Roadlines as also the surveyor M/S ZK Consultancy Services and there was no name of the Recovery Agent. All these cumulative factors clearly establish the active role of A-4 in this conspiracy.
72(25) The accused persons have been charged for the offence punishable under Section 120 B IPC read with 467/468/471 IPC and A-1 has also been charged for the substantive offence under Section 13 (2) read with 13 (1) (d) and Section 15 of the PC Act.
(26) Section 467 IPC relates to forgery of valuable security etc that is the preparation of false documents within the meaning of 463 and 464 of the IPC. Section 468 applies to cases of forgery which have been committed for the purpose of cheating. Cheating has been defined under Section 415 of the IPC and it is the ingredient of deception which has to be established to make out the offence under the aforestated provision of law. Conspiracy is always hatched in darkness and there is no direct evidence of the same. In a judgment of the Hon'ble Apex Court reported in 1996 Crl. L.J. 2448 it has been held that to establish a charge of 73 conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary; in some cases intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart the prosecution has not to establish that a particular unlawful use was intended so long as the goods or services in question could not be put to any lawful use; when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish to bring home the charge of conspiracy that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or services to an unlawful use.
(27) Section 13 (1) (d) of the PC Act defines criminal misconduct by a public servant and in this case it has been established by the prosecution that A-1 L.K. Gupta in his capacity as 74 the Branch Manager, NIC had by abusing his position as a public servant obtained for himself and for the other accused persons valuable things/pecuniary advantage; this offence stood complete. (28) Sanction for prosecution against A-1 had been accorded by PW 29 Sujit Dass posted as General Manager, NIC vide Sanction Order Ex. PW29/A; he has categorically stated that he had signed the Sanction Order after he had considered the request from the Vigilance Department and this request consisted of statement of witnesses, FIR and other documents relating to this case and after having gone through these documents, he had got prepared the Sanction Order and signed the same. Nothing has been elicited in his cross examination which can in any manner said to diminish his version. Sanction, in my view, has been accorded with due application of mind and after consideration of the relevant material placed 75 before the competent authority.
(29) Prosecution has been able to prove its case beyond reasonable doubt against all the accused persons. All the accused persons are convicted under Section 120 B/420/467/468/471 IPC and Section 13 (2) read with 13 (1) (d) of the PC Act.
(30) A-1 is also convicted for the substantive offence under Section 13 (2) read with 13 (1) (d) of the PC Act.
(31) A-2 to A-4 are also convicted for the substantive offence under Section 420/467/468/471 IPC.
(32) For arguments on the point of
sentence, to come up on 05.3.08.
Announced in the open court.
03.3.08 (INDERMEET K. KOCHHAR)
SPL.JUDGE, CBI,NEW DELHI
76
IN THE COURT OF MS. I.K. KOCHHAR: SPL.JUDGE,
CBI,NEW DELHI
CC No.31/07
RC DAI 2001 A 0056
CBI Versus (1)L.K. Gupta S/o
Lt. Sh. LR Gupta,
R/o A-1/161-162
Sector 11, Rohini
(2)Sanjay Raina S/o
Sh. KN Raina, R/o
269-C, Dilshad Garden,
Delhi.
(3)Rajeev Kumar Goyal S/o
Lt. Sh. Rameshwar Dayal,
R/o 18, Radhey Shyam Park,
New Delhi.
(4)Deepak Handa S/o
Lt. Sh. GN Handa, R/o
B-1/33-2, Safdarjang
Enclave, New Delhi.
05.03.2008
ORDER ON SENTENCE
Pr: Spl. PP Ms. Neelam Singh for the CBI All Convicts are produced in JC with their respective counsels Vide Judgment dated 03.3.08 all the accused persons namely L.K. Gupta, Sanjay Raina, Rajeev Kumar Goyal and Deepak Handa have been convicted 77 under Section 120 B/420/467/468/471 IPC and Section 13 (2) read with 13 (1) (d) of the PC Act. A-1 has also been convicted for the substantive offence under Section 13 (2) read with 13 (1) (d) of the PC Act. A-2 to A-4 have also been convicted for the substantive offence under Section 420/467/468/471 IPC.
Under Section 13 (1) (d) read with Section 13 (2) of the PC Act the punishment prescribed is imprisonment for a term which shall be not less than one year but which may extend to seven years and convict shall also be liable to fine.
Under Section 420 IPC the punishment prescribed is imprisonment for a term which may extend to seven years and convict shall also be liable to fine.
Under Section 467 IPC the punishment prescribed is imprisonment for a term which may extend to 10 years and convict shall also be liable 78 to fine.
Under Section 468 IPC the punishment prescribed is imprisonment for a term which may extend to seven years and convict shall also be liable to fine.
On behalf of the convict L.K. Gupta, arguments have been addressed by counsel Mr. RNP Sinha. It has been argued that he is a family man aged about 62 years having a family of wife and three married children who are all living separately; he is the only bread earner for his wife and keeping in view the fact that he has already suffered trauma of a long protracted trial of seven years and he also suffering from blood pressure, a lenient view be taken in the award of sentence.
On behalf of the convict Sanjay Raina, arguments have been addressed by counsel Mr. RK Handoo. It has been argued that he is a family man 79 aged about 55 years having a family of wife and two minor children; his daughter has to undergo 12th Board Examination; he is the only bread earner in the family and the fact that he has already undergone an angiography and a stent had been affixed in his heart and keeping in view of all these cumulative factors as also the fact that he has already suffered trauma of a long protracted trial, a lenient view be taken in the award of sentence.
On behalf of the convict Rajeev Kumar Goel, arguments have been addressed by counsel Mr. Vasudha Indukar. It is argued that he is a family man aged about 38 years having a family of wife, two minor children aged about 10 years and 6 years and ailing mother of 70 years; he is the only bread earner in the family and keeping in view all these facts, a lenient view be taken in the award of sentence.
80
On behalf of the convict Deepak Handa, arguments have been addressed by Proxy Cl. Mr. RK Handoo for Mr. I.D. Vaid. It has been argued that he is a family man aged about 49 years having a family of wife and one unmarried child; he is the only bread earner in the family and keeping in view the fact that he has already suffered trauma of a long protracted trial, a lenient view be taken in the award of sentence.
On behalf of the prosecution, it is stated that the convicts have been guilty for the offence for which they have been convicted and keeping in view this social evil of corruption which is on increase, the sentence awarded to the convicts should be sufficient to meet the ends of justice.
Arguments have been heard on the point of sentence. A-1 L.K. Gupta was involved in all the seven Marine Claims in which forged and fabricated documents had been used. A-2 Sanjay Raina was shown 81 as the Proprietor and his involvement has also been proved by and large in all the claims. Role of A-3 Rajeev Kumar Goel and A-4 Deepak Handa is comparatively lesser and has not been established qua all the seven Marine Claims.
In this background, I sentence the convicts as follows:
I sentence the convict L.K. Gupta to undergo RI for three years and to pay a fine of Rs.1,00,000/- under Section 13 (2) read with 13 (1)
(d) of the PC Act; in default of payment of fine, he shall undergo SI for one year. Convict L.K. Gupta is further sentenced to undergo RI for one year and to pay a fine of Rs.20,000/- under Section 120 B read with 420/467/468/471 IPC; in default of payment of fine, he shall undergo SI for three months. Both the sentences shall run concurrently. Benefit U/S 428 Cr.P.C is given to the convict.
I sentence the convict Sanjay Raina to 82 undergo RI for three years and to pay a fine of Rs.40,000/- under Section 420 IPC; in default of payment of fine, he shall undergo SI for six months. Convict Sanjay Raina is further sentenced to undergo RI for three years and to pay a fine of Rs.40,000/- under Section 467 read with 471 IPC; in default of payment of fine, he shall undergo SI for six months. Convict Sanjay Raina is further sentenced to undergo RI for three years and to pay a fine of Rs.40,000/- under Section 468 read with 471 IPC; in default of payment of fine, he shall undergo SI for six months. Convict Sanjay Raina is further sentenced to undergo RI for one year under Section 120 B read with 420/467/468/471 IPC. All the sentences shall run concurrently. Benefit U/S 428 Cr.P.C is given to the convict.
I sentence the convict Rajeev Kumar Goel to undergo RI for two years and to pay a fine of Rs.25,000/- under Section 420 IPC; in default of 83 payment of fine, he shall undergo SI for three months. Convict Rajeev Kumar Goel is further sentenced to undergo RI for two years and to pay a fine of Rs.25,000/- under Section 467 read with 471 IPC; in default of payment of fine, he shall undergo SI for three months. Convict Rajeev Kumar Goel is further sentenced to undergo RI for two years and to pay a fine of Rs.25,000/- under Section 468 read with 471 IPC; in default of payment of fine, he shall undergo SI for three months. Convict Rajeev Kumar Goel is further sentenced to undergo RI for one year under Section 120 B read with 420/467/468/471 IPC. All the sentences shall run concurrently. Benefit U/S 428 Cr.P.C is given to the convict.
I sentence the convict Deepak Handa to undergo RI for two years and to pay a fine of Rs.25,000/- under Section 420 IPC; in default of payment of fine, he shall undergo SI for three 84 months. Convict Deepak Handa is further sentenced to undergo RI for two years and to pay a fine of Rs.25,000/- under Section 467 read with 471 IPC; in default of payment of fine, he shall undergo SI for three months. Convict Deepak Handa is further sentenced to undergo RI for two years and to pay a fine of Rs.25,000/- under Section 468 read with 471 IPC; in default of payment of fine, he shall undergo SI for three months. Convict Deepak Handa is further sentenced to undergo RI for one year under Section 120 B read with 420/467/468/471 IPC. All the sentences shall run concurrently. Benefit U/S 428 Cr.P.C is given to the convict.
File be consigned to record room.
Announced in the open court.
05.3.08 (INDERMEET K. KOCHHAR)
SPL.JUDGE, CBI,
NEW DELHI
85
CBI Vs. L.K. Gupta etc.
CC No.31/07
05.3.08
Pr: Spl. PP Ms. Neelam Singh for the CBI All convicts are produced in JC with their respective counsels Vide separate order of even date order on sentence has been passed.
Applications have been filed on behalf of the convicts namely L.K. Gupta, Sanjay Raina, Rajeev Kumar Goyal and Deepak Handa under Section 389 Cr.P.C praying for suspension of sentence and grant of bail for an interim measure till the convicts are in a position to file appeal before the Hon'ble High Court.
Heard.
In the facts and circumstances of the case, period of one month is granted to all the convicts to prefer their appeal before the Hon'ble High Court against the judgment and order on sentence dated 3.3.08 and 05.3.08 respectively. All the convicts namely L.K. Gupta, Sanjay Raina, Rajeev Kumar Goyal and Deepak Handa are admitted to bail upto 07.4.08 on their furnishing a personal bond each in the sum of Rs.50,000/- each with one surety of the like amount during which period they will be seeking their appropriate remedy before the Hon'ble High Court.
Put up these applications on 07.4.08.
SPL.JUDGE, CBI/05.3.08 86