Delhi District Court
Seema Sharma D/O Late Sh. A.R. Sharma vs Central Bureau Of Investigation on 16 August, 2021
IN THE COURT OF
AJAY GULATI
SPECIAL JUDGE (PC ACT), CBI-12,
ROUSE AVENUE DISTRICT COURT, NEW DELHI.
CNR No. DLCT11-001749-2019
Crl. Appeal No.10/2019
In the matter of :-
Seema Sharma D/o Late Sh. A.R. Sharma
R/o E-9, Hauz Khas, New Delhi. .......Appellant
Versus
Central Bureau of Investigation
Through its Director
CBI Head Quarter Lodhi Road,
New Delhi. .......Respondent
Date of institution : 28.08.2019
Date reserved for judgment : 03.08.2021
Date of judgment : 16.08.2021
JUDGMENT
1. The present appeal has been preferred against the impugned judgment dated 31.07.2019 and order on sentence dated 05.08.2019 respectively, passed by Ld. ACMM-II-CUM-ACJ, RACC, New Delhi, whereby the appellant has been convicted for the offence u/s 420/467/468 IPC and u/s 468 r/w Section 471 IPC and Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 1 of 81 consequently sentenced to RI for three years each for the offence u/s 420/467/468 IPC and RI for two years for the offence u/s 468 r/w Section 471 IPC. Further, the appellant has also been sentenced to pay a cumulative fine of Rs.5,00,000/- for the abovesaid offences. Ld. Trial Court further directed that out of the fine amount of Rs.5,00,000/-, an amount of Rs.3,00,000/- shall be paid as compensation to Joint Chief Controller of Imports & Exports (complainant) and in default of payment of fine, appellant will have to undergo further SI for one year. Ld. Trial Court also directed that the sentences were to run concurrently.
2. Investigation was initiated after a complaint was filed by the o/o Joint Chief Controller of Import & Exports (Jt. CCI&E) alleging that appellant/convict had forged certain documents - bank certificates, disclaimer certificates, airway bills and invoices on 8 occasions to claim cash compensatory support (CCS) for export of readymade garments. On the basis of written complaint from L.M. Lakra, the then Dy. Chief Controller of Import & Exports (CLA), New Delhi, case RC No.13/S/90-DLI was registered on 26.10.1990 u/s 420/467/468/471 IPC against M/s Seep International of which the appellant is the sole proprietor. During investigation, it was revealed that M/s Seep International was registered with Apparel Export Promotion Council (AEPC), New Delhi, for exporting readymade garments. The exporter was entitled to cash compensatory support Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 2 of 81 (CCS) on exports made @ 8% of the FOB (free on board) value. The appellant vide application dated 06.07.1989 of her abovementioned Firm claimed CCS worth Rs. 50,581.52 against an export consignment of 4000 pieces of readymade garments worth Rs.6,96,000/- to M/s Silver Grace Incorporation, New York, USA vide shipping bill no.121511 dated 18.11.1988. The said application was processed by the office of JCCI & E (CLA), New Delhi, and against the abovesaid claim, an amount of Rs.48,309/- vide cheque no.708955 dated 27.07.1989 (after deducting 5% for late submission of claim) was credited to the account of M/s Seep International being operated by appellant Seema Sharma. Appellant, proprietor of the Firm, for sake of obtaining excess CCS worth about Rs.30,400/- inflated the FOB value of exports from Rs.2.96 lacs to 6.96 lacs.
Further, vide application dated 17.07.1989 of her Firm, appellant claimed CCS worth Rs.25,600/- for export of cotton readymade garments worth Rs.3,20,000/- (FOB value) which were claimed to have been exported vide shipping bill no.044823 dated 09.04.1989 on the basis of disclaimer certificate, bank certificate of export no.00601298 dated 20.04.1989 purportedly issued by New Bank of India, Tolstoy Marg Branch, New Delhi. Said claim was processed by the office of JCCI & E (CLA), New Delhi and an amount of Rs.25,600/- was paid to the Firm of appellant vide cheque no.710265 dated 04.08.1989. However, investigation revealed that the shipping bill no. 044823 was infact in the name of M/s Manglam Arts Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 3 of 81 Delhi and goods said to have been exported vide this shipping bill were actually of a different description. The Airway bill no.055492524054 of flight no. A-2787 dated 17.09.1989 of Alitalia Airlines endorsed on the copy of the shipping bill was also false and forged, since there was no such flight on that day. Further, New Bank of India also denied having issued the bank certificate of export and hence, same was also found to have been forged as per the investigation carried out. The disclaimer certificate purportedly signed by Ms. Anju Sharma, was infact found to have been signed by appellant Ms. Seema Sharma and resultantly, appellant obtained CCS worth Rs.25,600/- on the basis of false and forged documents, thereby cheating the JCCI & E (CLA), New Delhi.
3. Still further, appellant also claimed CCS worth Rs.16,384/- on the basis of disclaimer certificate and bank certificate of export issued by New Bank of India vide application dated 17.07.1989 against purported export of cotton readymade claimed to have been exported vide shipping bill no.044822 dated 09.04.1989. The said claim was also processed by office of JCCI & E (CLA), New Delhi and appellant was paid an amount Rs.16,384/- vide cheque no.709974. Investigation however revealed that the shipping bill no.044882 belonged to M/s Abbot Traders, New Delhi, for goods of different description. The bank certificate had also not been issued by New Bank of India and further, the appellant had also (allegedly) Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 4 of 81 forged signature of Ms. Anju Sharma on the disclaimer certificate. Thus, appellant obtained CSS worth Rs.16,384/- on the basis of false/ forged certificate.
4. Before adverting to the findings returned by the Ld. Trial Court for convicting the accused/appellant, and merits of the appellate submissions, it would be relevant to briefly touch upon the prosecution evidence adduced during the course of trial. Prosecution examined 29 witnesses so as to substantiate the Charge against the accused.
5. PW-1 R.K. Sharma was an official from Alitalia Airlines. He proved as Ex. PW1/1 Airway bill no.05549252405 for 3800 pieces of cotton power-loom readymade garments, issued on 07.04.1989 by Al Italia's India agent at Jullundhar. Ex.PW1/1 is the true copy of bill attested by Mr. E. Jones, Cargo Manager. Further, PW1 proved the attested copy of Cargo Manifest for flight AZ-787 dated 18.04.1989 Ex.PW1/2 (2 pages) which contained the entry of said Airway bill Ex. PW1/1. Being familiar with the signatures of Mr. E. Jones, Witness identified the signatures of Mr. E. Jones on Ex. PW1/1 and Ex. PW1/2.
In cross-examination, PW1 deposed that Ex. PW1/1 and Ex. PW1/2 were photocopies of the original, and that these documents had been prepared by agents.
Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 5 of 816. PW-2 A.K. Mehra was an Officer from the Punjab National Bank but at the relevant time was working in New Bank of India. He explained the procedure for issuing Bank Certificate of export i.e. export documents have to be submitted by the applicant/party which are then entered in the export document register and also separately in Bank certificate of export where-after the Bank certificate is issued in triplicate - for the Bank, for the Applicant and for Jt. CCI&E. In cross-examination, PW 2 deposed that the cheque issued by the o/o Jt. CCI&E towards payment of cash compensatory support scheme contains endorsement of Bank certificate on the back of cheque issued for the purposes of cross-checking.
7. PW-3 R.C. Chadha was from Central Bank of India. He also deposed regarding procedure for issuance of bank certificates for export. He stated that bank certificate number N/P 74652888 Ex.PW21/P was issued by International Division Parliament Street, Central Bank of India and the said certificate Ex.PW21/P was issued after seeing invoice no. S1/03/88 dated 15/11/1988 Ex.PW21/Q and Airway bill Ex.PW13/1.
In cross-examination, PW 3 stated that Bank certificate Ex. PW21/P was correctly issued to Seep International by him after personally being satisfied with the documents attached alongwith by the Firm. Witness explained that for getting bank certificate of export, Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 6 of 81 invoice Airway Bill or Bill of Lading is to be submitted by the exporter. He further explained that original Bank certificate is handed over to the party concerned and is never sent to the Customs Deptt. by the Bank.
8. PW-4 K. Raju was from the AEPC (Apparel Export Promotion Council). He stated that VISA Ex.PW4/A was issued by their office. As per PW4, the application for VISA Ex.PW4/B was submitted by Seep International of which Smt. Seema Sharma is the proprietor. He also proved invoice Ex.PW4/C and shipping bill Ex.PW4/D. As per PW4, visa Ex.PW4/E was issued by their office on the application Ex.PW4/F. Further, PW-4 also proved invoice Ex.PW4/G and shipping bill Ex.PW4/H. As per PW4, third VISA issued was Ex.PW4/1 and application for the same was Ex.PW4/J. In cross-examination, Witness stated that cheque to the 'party' is issued by their office after submission of proof of shipment. He further stated that Bank Certificate number was not mentioned on the back of the cheque.
9. PW-5 Agneshwar Sain was from the o/o Jt. CCI&E. Witness stated that they used to give cash compensatory support to the party against exports. As per PW 5, the present party applied under simplified payment scheme (SPS) and under which they would pay cash compensatory support without actual realization of export Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 7 of 81 proceeds. Witness explained that the application of the party should be accompanied by a bank certificate of export, bank attested invoice, affidavit, copy of the shipping bill and registration-cum-membership certificate of the concerned export promotion council and enrollment form for SPS. PW-5 stated that file opening register contains entry dated 06.07.1979 at Srl. No.4755 at page 77 (proved as) Ex.PW5/A, dt. 12.07.1989 at Srl. No.5180 at page 107 (proved as) Ex.PW5/B and entry dt. 12.07.1989 at Srl. No.5202 on page 109 (proved as) Ex.PW5/C. He also stated that entries show that party made application to their office for obtaining CCS under SPS.
In cross-examination, Witness admitted to be correct that Bank is supposed to check whether Bank Certificate number mentioned on the back of the Cheque issued to the party applying for CCS was actually the certificate issued by the Bank.
10. PW-6 Rajnish Sharma was proprietor of M/s Sky Train Services since 1985. He used to provide services of custom clearance. PW6, after seeing shipping bill Ex.PW6/A, categorically stated that it does not bear the signature of his concern, and stamp at mark-A on Ex. PW6A was fake as he did not use such stamps. Further, as per PW6, bill Ex.PW6/B and bill Ex.PW6/C also bore fake stamps at points-A & B in both the said exhibits. He also categorically deposed that Ex.PW6/E, Ex.PW6/F and Ex.PW6/G also bore fake stamps at points Mark-A and B on the said exhibits. PW6 also elaborated the difference Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 8 of 81 between the fake stamps and actual stamps by stating that in the actual stamp used by him, the word "Ske Train" was one word, whereas in the fake stamp pause is given between Sky and Train. PW6 also testified that apart from stamp, their bill invariably bears the signatures, which is not there in abovesaid bills.
In cross-examination, Witness stated that he did not give his office stamps to CBI nor gave any seal impressions. He further stated that he did not remember whether he had retained the stamps of 1985 or 1989.
11. PW-7 Mohinder Singh was a formal witness, a postman in Greater Kailash Post Office since 1982 and dealing with beat no. 8. As per him, beat No.8 of the post office, covered the area of Kailash Colony as block No. A, E, F, D, H, S. Block A includes the flats A-1 to A-60. As per PW7 there was no flat having address as A-70 in Kailash Colony.
In cross-examination, Witness stated that he did not show to the CBI, the map showing the extent of beat no. 8
12. PW-8 Ms. Bela Kaushik was from the Central Bank of India and was posted in the Udyog Bhawan Branch at the relevant time. She was looking after government accounts which included payment of cheques as well as receipts. As per PW8, Ex.PW8/1 to Ex.PW8/5 were the cheques which bore her signatures at point-A Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 9 of 81 respectively and that these cheques were received in clearance.
In cross-examination, Witness deposed that the cheques issued bear the (bank) certificate number on the reverse of the cheques which is to be verified by the Bank which would present the cheque for clearing. In case the presenting bank is unable to verify the details mentioned on the reverse of the cheques, it shall not present the cheque for clearance.
13. PW-9 Ramesh Kumar Verma was from New Bank Of India. This witness deposed about the credit of 2 cheque amounts in the account of Seep International i.e. cheque no.709974 amounting Rs.16384/- and cheque no.709975 amounting Rs.19456/-. He further stated that both the cheques were of Central Bank of India. Witness also deposed about a third tranche of amount credited in the current account of Seep International for Rs.47,118/- vide pay in slip Ex. PW9/3.
The cross-examination of this witness is not relevant.
14. PW-10 K.K. Jolly was posted as Manager in the export section in CP Branch of New Bank of India from August, 1990 to June, 1992. As per PW10, cheques issued by CCI 1 used to be endorsed by CCI showing the bank reference number on the reverse of the cheque and as per the procedure it used to be authenticated by the 1 CCI here refers to the Chief Controller of Import and Export.
Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 10 of 81checking officer on the reverse of the cheque.
In cross-examination, Witness deposed that Bank certificate number which is mentioned by the CCIE on the reverse of the cheque issued by it, is to be verified by the Exporter's bank which issued it and that if the Bank was unable to verify 'its own certificate', the Bank would not present the cheque for clearance.
15. PW-11 Ramesh Chand was from the Customs Deptt and was posted as Dy. Office Suptd. during the relevant time. Witness deposed that their office maintained the import-export documents which include shipping bills, bills of entry, EGM and IGM, invoices etc. Witness confirmed the authenticity of the documents put to him i.e. Ex.PW11/A was the letter dated 18.04.1991 written by him and signed by Assistant Controller Customs, Ex.PW11/B was the letter dated 10.06.1991 which also bore his signature and by which he handed over the certified copy Mark-A and Ex.PW11/C which was their office circular dated 29.04.1991.
The cross-examination of the witness is not relevant as he only appears to have handed over certain documents to the CBI officials.
16. PW-12 Surinder Kumar Jain was senior most clerk of New Bank of India at the relevant time. This witness testified about the deposits in the current a/c no. 3502 i.e. pay in slip dated Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 11 of 81 10.08.1989 (Ex. PW12/A), photocopy of clearing register (Ex.PW12/B), certified copy of statement of account of current account no.3502 (Ex.PW9/4), and 3 cheques - Ex.PW12/C to Ex.PW12/E which were deposited in their bank for collection and for which credit was afforded to the party.
In cross-examination, Witness deposed that the photocopy of clearing register was not attested by anyone and further, that he had not brought any account opening documents of the a/c of Seep International.
17. PW-13 D.B. Anand was Superintendent in Air-Cargo up to 1990. As per PW13, his duties were to process shipping bills. PW13 specifically stated that Ex.PW6/E was not signed by him, whereas seal on Ex.PW13/1 and Ex.PW13/2 shown as D.B. Anand, Superintendent Customs, IGI Airport bore his initials.
In cross-examination, the Witness explained that his official stamp never used to be in his possession but could be used by any of the clearing agents to stamp the same on the documents. After stamping, the documents would then be numbered by the customs clerk and put before this Witness for processing.
18. PW-14 Balwant Singh was from the Apparel Exports Promotion Council (AEPC) where he was working as a Jr. Assistant at the relevant time. He was concerned with processing shipping bills at Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 12 of 81 the USA desk. He explained the process of checking the shipping bills and the follow up procedure leading to grant of VISA. Witness admitted his signatures on Ex. PW6/D, Ex. PW6/G and Ex. PW 14/A, and also identified the endorsement of Mr. B. Subramanium on Ex. PW12/A2, Ex. PW 6/F and Ex. PW6/E since he had worked with Mr. Subramanium. Witness further deposed that Quota certificates Ex. PW14/B, Ex. PW14/C and Ex. PW14/D were submitted by the 'party' along with the application.
In cross-examination, the Witness was questioned with regard to the documents endorsed by Mr. Subramanium but in response to which the witness expressed that he had no personal knowledge of the same. The witness also explained the procedure regarding issuance of quota certificates.
19. PW-15 M. Suresh was also from the AEPC and was posted as Assistant Director at the relevant time. This witness also explained the procedure to be followed by an exporter for seeking endorsement from the AEPC i.e. documents to be attached alongwith the application, processing of the application and so forth. Witness explained that as proof of shipment, the exporter has to file bank certified invoice, bank certificate of export and shipping bill endorsed by the Customs, amongst other documents. Witness identified the copies of VISA granted to Seep Enterprises i.e. Ex. PW15/A to F and deposed in regard to the same that these were issued after perusal of Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 13 of 81 all the documents submitted by the Party. The Witness identified his signatures as well as those of Mr. RK Kaul (the then Jt. Director) on Ex. Ex. PW15/A to F. In cross-examination, the Witness deposed that original of Ex. PW15/A to F were in the possession of the exporter since the same is required for Customs clearance.
20. PW-16 Ms. Anju Chauhan is the sister of the appellant/convict. She explained the family tree and that the appellant was living with their father at Hauz Khas. She denied having anything to do with Seep Enterprises and categorically denied having signed the disputed Disclaimer Certificates on the basis of which the appellant allegedly claimed the cash incentive from the CCI&E. She further denied having opened any bank account on behalf of Seep Enterprises in the New Bank of India.
In cross-examination, Witness denied that she was ever involved in the business of readymade garments with her sister/appellant. She admitted that there was litigation between them in regard to a property. She also deposed that she was not called by the police, that her statement to the CBI was written by the IO and signed by her, and that her specimen signatures were not taken by the CBI.
21. PW-17 Arun Kumar was also an official witness from the new Bank of India. During the relevant time, he was in foreign Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 14 of 81 exchange department dealing with impex transactions. He testified that Bank Certificates Ex. PW17/A1 to Ex. PW 17/A8 were not issued by this Bank. He further explained that the round seal on the certificates was incomplete, that the reference number given on the certificates was not of their bank, that these did not have the RBI code number, and that it was not signed by any of the officials of the Bank.
In cross-examination, Witness sated that he had not brought the official rubber seal of the Bank to the Court and further deposed that he was not aware whether the said seal was still available or not.
22. PW-18 Ram Dutt Sharma was a witness summoned from the Central Bank of India. During the relevant time, he was working in South Ext. branch as Branch Manager. He identified the appellant/ convict as she was operating a CD account in his branch in the name of Seep International and was a frequent visitor to the Bank alongwith Preet Pal Singh. On being shown the questioned seals and attestation signatures i.e. Q 213 to 222, Witness stated that the same did not belong to their branch and the same were not of any of the officials of the Bank. He further testified that seal on Ex. PW18/A and Ex. PW18/B did not belong to their branch. However, he identified Ex. PW18/C as the letter having been signed by the Branch Manager Mr. Jaiswal and accountant AK Aggarwal. He also identified 3 attested documents Ex. PW18/D to F which were attached to the letter Ex.
Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 15 of 81PW18/C. In cross-examination, Witness denied having ever worked with Mr. Jaiswal. Further, he also denied having seen the originals of Ex. PW18/D to F. He also stated that his specimen signatures were not obtained by the CBI. Significantly, the witness deposed that he was not asked to produce the original seal of the Branch Manager nor was the seal impression taken by the CBI. Witness also deposed that he was questioned by the CBI regarding the questioned seal Q 217 to 222. He stated that they only had account of Seep International but no account of Seep Enterprises. Witness also stated though Preet Pal Singh always used to accompany Seema Sharma but he had no connection with the account of Seep International. He denied the suggestion that his signatures appeared on Ex. PW18/A and B.
23. PW 19 N. C. Sood, Government Examiner of questioned documents, deposed in his chief-examination that he had taken training in hand-writing identification, detection of forgery and other allied subjects in the lab of Government of India located at Shimla pursuant to which he had examined large number of documents and had also appeared as an Expert Witness in various courts of law.
The Witness further deposed that the documents of the present case consisting of questioned writings marked Q22, Q42 on Ex. PW17/A-5 to 43 to Q61 on Ex. PW17/A-4, Q59A, Q60A to 61A Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 16 of 81 and Q62 to Q76 on Ex. PW17/A1, Q77 to Q93 on Ex. PW17/A-6, Q94 to Q116 on Ex. PW17/A-8, Q117 to A133 on Ex. PW17/A-2, Q134 to Q157 on Ex. PW17/A-7, Q158 to Q177 on Ex. PW17/A-3, Q179 and Q180 on Ex. PW17/B-7, Q181 and Q182 on Ex. PW17/B- 2, Q183, Q183A and Q184 on Ex. PW17/B-8, Q185 and Q186 on Ex. PW17/B-6, Q187, Q188 and Q188A on Ex. PW17/B-4, Q189 and Q190 on Ex. PW17/B-5, Q191 and Q192 on Ex. PW17/B-1, Q193 and Q194 on Ex. PW17/B-3, Q195 and Q196 on Ex. PW19/A, Q197 and Q198 on Ex. PW19/B, Q199 and Q200 on Ex. PW19/C, Q201 and Q202 on Ex. PW19/D, Q203 and Q204 on Ex. PW19/E, Q205 and Q206 on Ex. PW19/F, Q207 on Ex. PW6/E, Q208 on Ex. PW6, Q209 on Ex. PW6/F, Q210 on Ex. PW6/G, Q211 on Ex. PW6/D, Q212 on Ex. PW13/A-3, Q213 to Q216 on Ex. PW18/A, Q217 to A222 on Ex. PW18/B, Q223 and Q224 on Ex. PW9/A, Q225 on Ex. PW9/3 and Q226 on Ex. PW12/A, were received in the office of SP (CBI) SCB New Delhi vide letter No. 3/13/90/Spl/DLI/5427 dated 23.9.1991.
The Witness further deposed that the questioned documents mark Q-1 and Q-2 were on Ex. PW21/R-4, Q-3 and Q-4 were on Ex. PW21/R-3, Q-5 and Q-6 were on Ex. PW21/C, Q-7 and Q-8 were on Ex. PW21/R-5, Q-8A and Q-9 were on Ex. PW21/R-6, Q-103 and Q-11 were on Ex. PW21/R-2, Q-12 and Q-13 were on Ex. PW21/R-7, Q-14 and Q-15 were on Ex. PW19/1, Q-16 and Q-17 were on Ex. PW21/X, Q-18 and Q-19 were on Ex. PW19/2 and that Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 17 of 81 Q-20 and Q-21 were on Ex. PW21/R-1.
PW 19 further stated that the specimen writings of Ms. Seema Sharma were marked as S-1 to S-9 on Ex. PW19/3 (colly.) and S-37 to S-57 on Ex. PW19/4 collectively whereas the specimen writings of Shri Prit Pal were marked as S-10 to S-36 on Ex. PW19/5 collectively and that the specimen signatures of Smt. Anju were marked as S-58 and S-59 on Ex. PW19/6 and Ex. PW19/7. The sample seal impressions were marked as S-60 to S-64 on Ex. PW19/8 collectively and also as S-65 to S-69 on Ex. PW19/9 collectively whereas the admitted seal impression were marked as A-1 to A-5 on Ex. PW19/10 to Ex. PW19/14.
The Witness deposed that after careful and thorough examination of the documents, he concluded that the person who wrote the blue enclosed writings and signatures stamped and marked S-1 to S-9 and S-37 to S-57 also wrote the red enclosed writings and signatures similarly stamped and marked Q-1 to Q-8, Q-8A, Q-9 to Q-21, Q-59, Q-178, Q-195, Q-197, Q-199, Q-201, Q-203, Q-205, Q- 212, Q-223 and Q-224.
The Witness further concluded that the seal impression in the red enclosed portion marked Q-37 to Q-40, Q-52 to Q-58, Q- 70, Q-71, Q-73, Q-74, Q-89, Q-90, Q-91, Q-106 to Q-113, Q-129, Q- 130, Q-131, Q-136 to Q-155 and Q-170 to Q-175 did not tally with any one of sample seal impressions in the blue enclosed portions marked S-60 to S-64. Also, the seal impressions in the red enclosed Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 18 of 81 portion marked Q-42, Q-61, Q-76, Q-93, Q-116, Q-133, Q-157 and Q-177 did not tally with any one of sample seal impressions in the blue enclosed portions marked S-65 to S-69, and the seal impressions in the red enclosed portion marked Q-180, Q-182, Q-184, Q-186, Q- 188, Q-190, Q-192 and Q-194 did not tally with any one of sample seal impressions in the blue enclosed portions marked A-1 to A-5. The recorded opinion of the Witness was proved as Ex. PW19/15. The reasons forming the basis for the opinion of the PW, on 2 sheets having his signatures, was proved as Ex. PW19/17.
In cross-examination, PW 19 stated that the reasons for his opinion were submitted by the PW before the Court on the day of his deposition. The Witness denied the suggestion that he was supposed to forward reason of his opinion along with the opinion on the documents to the investigating agency. The witness explained that he had not taken the help of photographs/enlargement for forming his opinion, voluntarily stating that he had examined the original documents with the help of various scientific instruments available in the laboratory.
The Witness admitted that the standard writings in the present case were written freely, had inter-se consistence and showed natural variation, and also that the writer who wrote the standard writing, did not write to disguise so as to avoid detection. The Witness also admitted that general characteristics included qualities like movement, skill, slant, spacing, size and proportion of characters Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 19 of 81 and alignment, and that these general writing habits could be found in a group of persons, voluntarily stating that they have to be considered collectively. The Witness also admitted that the general writing habits can be found in writings of more than one writer of the same script and that the movement can be classified as forearm movement and wrist movement, whole arm movement, combine and wrist cum finger movement and a combination of these.
Witness denied the suggestion that since the movements were general characteristics and common to a group of persons, much reliance could not be placed on its executional characteristics only, voluntarily stating that in case of forgery, the movement will be of finger and wrist or forger may try to copy the formation of letters and change its movement and hence, the movement is an important factor. The Witness admitted that the alignment can be measured, described and illustrative, voluntarily stating whether it is upward, straight or downward.
PW admitted that there may be peculiar similarity in the writings of two different persons but such similarity might be superficial, voluntarily stating the same may show differences while examining them with different scientific instruments.
Witness denied the suggestion that the similarities which he had referred to in his reasons, were common and conventional similarities which could be observed in more than one writing but however, admitted that while talking about the similarities of certain Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 20 of 81 alphabets and numbers, he had not specified the documents from which the similarities were observed. He stated that he had mentioned all the documents which he had compared in Ex. PW19/17 (i.e. reasons for his opinion). The Witness admitted that while examining the documents, the points of dis-similarities also have to be considered. Witness denied that a comparison based on dis-similarities is always better and more conclusive than that of a comparison of similarities, voluntarily stating that both similarities and dis-similarities have to be considered. The Witness also denied the suggestion that his opinion was not conclusive or that he had given an inaccurate opinion at the instance of the CBI officials.
24. PW-20 Rakesh Chandra Gupta deposed that from July 1987 to November 1990, he worked as an Accountant/Officer at New Bank of India, Tolstoy Marg Branch, New Delhi. He identified the Bank slips dated 4.8.1989 and 10.8.1989 (Ex. PW20/A and Ex. PW20/B respectively) pertaining to current account No. 3502 in the name of Seep International, E-9, Hauz Khas, New Delhi amounting to Rs. 35,840/- and Rs. 1,11,712/-, and the certified copy of clearing ledger Ex. PW20/C. The Witness was not cross-examined by the defense. It needs a highlight that an application under Section 311 of Cr. PC moved on behalf of defense for recalling PW 20 was declined by the ld. Trial Court vide a detailed order dated 11.7.2013.
Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 21 of 8125. PW-21 Ms. Sudersh Chaudhary deposed that from July 1986 till September 1990, she was working as dealing assistant in the office of JCCI & E at Peerless Bhawan, Asaf Ali Road, New Delhi and had dealt with the claim applications of cash compensatory support. Witness deposed that the application Ex. PW21/A was filed by M/s. Seep International in the office of JCCI & E, bearing her signature at point A. She stated that along with the application Ex. PW21/A, one shipping bill bearing No. 095857 Ex. PW21/B, Bank certificate of export Ex. PW17/A8, invoice Ex. PW17/B8 and the application form for CCS Ex. PW21/C were also filed whereafter the claim of the party against this application was approved by her for FOB value of Rs. 1,37,700/- @ 8% after deducting an amount of Rs. 10,466/- @ 5% for late application.
The Witness also deposed that the party used to submit the provisional certificate of export in triplicate at the time of filing claim application and that Ex. PW21/D and Ex. PW21/E were the provisional certificates submitted by the party. The Witness further deposed that the applications filed by M/s. Seep International in the office of JCCI & E were Ex. PW21/G to N bearing her signatures at points A and that along with these applications, shipping bills Ex. PW6, PW12/A2, Ex. PW6/E, Ex. PW13/1, Ex. PW21/O, Ex. PW6/D, Ex. PW6/F, invoices Ex. PW17/B1 to B6 and Ex. PW21/Q, Bank Certificates of export in all aforesaid applications Ex. PW17/A1 to 7, Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 22 of 81 Ex. PW21/P, and application form for CCS were also filed by the party. The CCS forms were proved by the Witness as Ex. PW21/R1 to R7, bearing her signatures at points A and that of the parties at points B and C. The Witness further deposed that thereafter claim of the party against these applications were approved against the respective FOB value mentioned in each application. PW stated that the approval of the claim and issuance of cheque thereafter was mentioned at the bottom of each application. Thereafter, cheques Ex. PW12/C, Ex. PW8/1, 2, 4, 5, Ex. PW12/D and E were issued to Seep International against the claim mentioned in the aforesaid applications.
The Witness also deposed that complaint dated 23.3.1990 No. 7/165/89-90/ECA/CLA Ex. PW21/V addressed to SP, CBI, SCB, New Delhi was sent under the signatures of Shri L.M. Lakra, Deputy Chief Controller of Import and Export mentioning the details of all the aforesaid files and the respective invoices. Witness proved as Ex. PW19/B the file bearing No. CNT/5182/89-90/SPS- VII of Seep International containing the disclaimer certificate purportedly filed by the proprietor of M/s. Seep Enterprises Ms. Anju Sharma. Witness explained that the applications Ex. PW21/R1 to R7 were processed by the witness and his department and the claims were made to the party as is apparent from the check list Ex. PW21/G and Ex. PW21/S1 to S7. The amounts mentioned in the Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 23 of 81 respective check list with regard to respective CCS amounts in such check list had been processed and approved by the witness and thereafter, cheques of such amount Ex. PW12/C, Ex. 8/1, 2, 4, 5, Ex. PW12/D and E were issued to the party i.e. Seep International. The Witness stated that since he was authorized to approve only the amount upto Rs. 25,000/-, hence the amounts above Rs. 25,000/- were approved by Mr. Chhiber. The disclaimer certificates purported to have been issued by M/s. Seep Enterprises, New Delhi, were also filed with the applications form except in file Nos. 4574, 4555 and 4573, and that all the aforesaid applications Ex. PW21/R1 to R7 and Ex. PW21/C along with their enclosure were received at the office counter of the Witness vide respective token number mentioned in each check list.
The Witness further deposed that along with the application Ex. PW21/X, the party had submitted the Disclaimer Certificate Ex. PW19/D, Invoice dated 20.3.1989 Ex. PW17/B5, Shipping Bill Ex. PW6/D, Bank Certificate Ex. PW17/A5 and the Check List Ex. PW21/X2 on which she raised objection with regard to the difference of signature in invoice and application form of exporter.
In her cross-examination, Witness deposed that she remained for about 4 to 5 years in the office at her position. She could not say definitely whether the cheque used to go directly to the bank or not but the party used to collect it from the counter. The Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 24 of 81 Witness denied that she had deposed before the Court at the asking of CBI and that she had no personal knowledge regarding the facts of the present case.
26. PW-22 H.N. Wadetiwar deposed that at the relevant time i.e. in 1989, he was posted as Controller in the office of Jt. CCI & E (CLA) in the Section SPS-IV. He had handed over to the CBI the file opening which was maintained by the department to obtain file, token number and to maintain the cheques issued to the parties, application forms CCS etc. The Witness deposed that after processing and approval of the claim, token Nos. 704573 and 704574 were issued to M/s. Seep International against which the cheques were also handed over to the party on 24.7.1989. The token No. 704755 was entered at page 77, Ex. PW5/A whereas the token Nos. 705180 to 182 and its entry was maintained at page nos. 107 and 108 of the register (Ex. PW5/B). Token Nos. 705202 to 705204 and its entries were at page nos. 109 and 110 of the register (Ex. PW5/C). Similarly, token Nos. 705314 and 707600 and their entries were maintained at page nos. 109, 110 and 214 of the register (marked as Mark X/B and X/C).
In his cross-examination, the Witness stated he was asked to look at the register on the basis of which he had made the above statement.
Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 25 of 8127. PW-23 R.S. Gautam during the period July 1990-92, was posted as Dy. Office Supdt in the office of Assistant Collector, Custom Export Air Cargo Unit near IGI Airport. This witness explained the procedure for processing of shipping bills. He deposed that initially the exporter or his authorized agents used to bring the shipping bills duly filled-in in four copies, along with invoice and two copies of GR and would put the shipping bills in the boxes maintained for the said purpose which were later on took out after an interval of half an hour and were given the numbers. Pursuant to this, the same were entered in a register which number was called as shipping bill number. Thereafter, the shipping bills which must be of 6 digits, was put upto Inspector Custom who used to verify the contents of the bills. After verification, the bills were sent to Supdt of Customs for processing. The Superintendent used to check the contents of the bills like value, draw back, invoice etc whereafter he used to mark his initials on the original and duplicate bills. If the value used to be more than Rs. 25,000/- it would go to Assistant Collector for counter signing.
The Witness further deposed that after processing of shipping bills, it came to CRU Section for detachment of original copy of shipping bills, one copy of GR and copy of invoice where a 10 digit number used to be given, called custom detachment number. The Witness stated that after keeping copy of original GR, invoice and the shipping bills, the rest used to be returned to the exporter or Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 26 of 81 to his authorized agent for further work. The Witness stated that since he had been transferred, he had not brought the CR register.
In his cross-examination, the Witness stated that he had not seen any such codified or written procedure which he had mentioned in his statement (Chief exam.) and that it was not his duty to open the box in which papers relating to export documents were put in. The Witness stated that he did not make any entry of shipping bills in the register neither did he make any entry of any documents relating to shipping bills in his own hand. He stated that the procedure which he had narrated, was orally followed in the department relating to entry of export documents.
28. PW-24 D'Souza Wilberious Evanglist deposed that in the year 1990, he was posted as Sub-Manager in Syndicate Bank, Foreign Exchange Processing Centre. He stated that during that period, telex messages received on imported telex machine installed by Hindustan Tele Printers had distinctive characteristics like :
i) Messages received from outside India into India had right slanted characters.
ii) Messages sent from India to outside India had left slanted characters.
iii) Messages received from one destination in India to another destination in India had characters upright.Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 27 of 81
The chief-examination of this witness as also his cross- examination is not of any relevance for the purpose of the present Appeal.
29. PW-25 R. N. Maini deposed that he was working as Cargo Administration Officer with Lufthansa Airlines from 1969 till December 1993. The airlines used to issue carting order on the basis of which the goods could be deposited at Cargo Terminal under customs supervision for further clearance by customs authorities after fulfilling the export formalities. Thereafter the shipping bills and air consignment notes were to be delivered to the concerned airlines and the goods remained at the cargo terminal under custom custody. After custom clearance, the cleared shipping documents along with the airway bills were to be handed over to the concerned airlines on which basis the airlines planned airlifting of the shipment, make out a cargo manifest, collect the shipment from the cargo terminal and load onto the aircraft for its destination. Witness further explained that there are 3 copies of the airway bill - 1 st is for the exporter of the shipment, 2nd for the consignee and the 3 rd is the accounting copy which goes to the Accounts Department of the airline.
The Witness also deposed that Ex. PW25/A is the copy of the original bunch of the airway bill of Lufthansa bearing No. 220- 89914112 which was issued by the mutual agent of the airlines and the shipper i.e. exporter. This shipment was accepted by Lufthansa Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 28 of 81 Airlines along with shipping documents duly passed by the custom authorities and was flown by the Lufthansa Airlines. The Witness also deposed that Ex. PW25/B was the attested true copy of the carting order dated 13.9.1988 which was signed on 13.3.1991 by Mr. Micheal Nicholson, Cargo Manager, India, on the basis of which the goods were accepted and flown on Lufthansa Airlines flight to its destination.
The Witness was not cross-examined by the defense.
30. PW-26 Ms. T.R. Rukmani deposed that in the year 1988, she was working as Assistant at AEPC, Naraina and was authorized signatory to the shipping documents i.e. copy of the shipping bill submitted by the parties along with the quota application. Application Ex. PW4/F along with invoice Ex. PW4/G and shipping bill Ex. PW26/A bearing her signatures at point A was filed by the party Seep International whereafter Special Custom invoice i.e. VISA Ex. PW4/E was allocated to Seep International on 15.11.1988 for 4000 pieces of the garments amounting to Rs. 2,96,000/-. Thereafter next quota bearing No. 410683 for 1200 pieces dated 31.8.1988 was granted to Seep International through special custom invoice Ex. PW4/A and the shipping bill Ex. PW4/D on the application Ex. PW4/B moved by the party along with the invoice Ex. PW4/C. Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 29 of 81 The Witness further deposed that the next quota bearing No. 410684 dated 31.8.1988 for 2700 pieces was issued vide special custom invoice Ex. PW4/I on application Ex. PW4/J received from Seep International with invoice Ex. PW4/N and shipping bill Ex. PW4/P. In her cross-examination, the Witness stated that there was limit for granting the quota in the relevant period. The Witness could not say whether quota could have been purchased from other purchasers during that period.
31. PW-27 L.M. Lakra deposed that in 1990, he was posted as Deputy Chief Controller of Import and Export, New Delhi. Ms. Seema Sharma, proprietor of M/s. Seep International, during the year 1988-89, had applied for grant of cash compensatory support under SPS scheme and had also filed the Bank Certificates issued by New Bank of India, Tolstoy Marg, New Delhi whereupon the Firm was delivered cash compensation support under SPS scheme. The Bank Certificates were then sent back to New Bank of India, Tolstoy Marg, New Delhi for verification.
The Witness further deposed that the Bank informed that the certificates in question had not been issued by it and also that the signatures appearing on the bank certificates were not of their officials. The Witness also deposed that on receiving intimation by his office about the above-said forgery, the membership of the Firm Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 30 of 81 was suspended by the AEPC and on his complaint Ex. PW21/U, the matter was referred to CBI for investigation.
It needs a highlight that on the day of his chief-
examination i.e. 4.8.2009, the cross-examination of PW 27 was deferred for the next date. However, the cross-examination of the Witness could not be recorded thereafter for the reason that the Learned Presiding Officer, vide order dated 23.2.2010, discharged the Witness as the ld. Defense counsel was taking adjournment to cross-examine the Witness.
32. PW-28 Rajiv Sharma deposed that he joined as Inspector in Custom Department and was dealing with Airline Export Warehouse in the year 1989. The Witness proved extract of the entry register for the period 1.4.89 to 11.5.89 i.e. page Nos. 158 & 159, both dated 1.4.1989 maintained by Cargo Terminal, IGI Airport i.e. entry no. 6, Bill No. 044802, belonging to M/s. Seep International for 68 packets of ready-made garments amounting to Rs. 2,43,200/- (Mark A); entry no. 7, Bill No. 044822 of some other airlines (Mark
2) belonging to Abbot Traders, New Delhi for 13 packets of ready- made garments amounting to Rs. 1,02,000/-; and entry No. 8, Bill No. 044823 (Mark 3) belonging to Mangalam Arts, Delhi for 1 packet of 'silk made-ups' amounting to Rs. 11,530/-. The entries Ex. PW28/A for the above at page No. D-31, were attested by Shri O.P. Latawa, Supdt of Customs (Export), Air Cargo Units, IGI Airport, Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 31 of 81 New Delhi.
The witness was cross examined after an application under Section 311 of Cr. PC was moved for permission to recall PW 28 for the purpose of his cross-examination which application was allowed by Learned Trial Court vide order dated 11.7.2013.
Thereafter, the Witness was cross-examined on 9.9.2013 where-in he stated that he was shown the extract of page Nos. 158 and 159 by the CBI somewhere in the year 1990. The Witness was shown documents Mark A1 to Mark A3 to which he stated that Mark A1 and A2 were the originals whereas Mark A3 was the photocopy of the document. The Witness admitted that the original warehousing register for the period 1.4.1989 to 11.5.1989 was not available on the judicial record and that as per his understanding, document Mark A1 ought to have been in the custody of concerned Airline, document Mark A2 ought to have been in the custody of Custom Department and that document Mark A3 ought to have been in the custody of the concerned exporter. The Witness expressed his ignorance as to how could the said 3 documents come in the custody of CBI during the course of investigation.
Witness admitted that whenever any document is received in the Customs Department routed through concerned Airline after the shipment is airlifted, the same bears Export General Manifest (EGM) number. Witness further admitted that documents Mark A1 to A3 do not bear EGM number and that there was no Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 32 of 81 document traceable on judicial record which might bear EGM number. The Witness also admitted that there is no endorsement of the office of the concerned Airlines on the aforesaid 3 documents and also that in the absence of endorsement of the office of concerned Airlines appearing on any particular shipping bill, it cannot be said that shipment against that particular shipping bill has been actually airlifted.
Witness stated that he had never seen the accused in the office of Custom Department voluntarily stating that generally CHA appear in the Office on behalf of their clients. He admitted that the name of accused Seema Sharma is not mentioned on Mark A1 and Mark A2 and that Mark A2 does not bear any stamp in the name of M/s. Seep Enterprises on it. The Witness also admitted that Mark A2 does not bear any stamp of concerned CHA but however, denied that Mark A1 and A3 had been manipulated at the instance of CBI in order to falsely implicate the accused.
33. PW 29 Jai Kumar, Addl. SP deposed that the present case was registered on 26.10.1990 on the complaint Ex. PW21/U submitted by Sh. Lakra, the then Deputy Chief Controller, Export & Import which complaint was entrusted to him for investigation while he was posted as Inspector. The FIR (Ex. PW29/A) of the present case was registered against M/s. Seep International represented by its proprietor Ms. Seema Sharma with the allegations that the Firm had Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 33 of 81 claimed cash compensatory support in 1989 under the S P S from the office of Joint Chief Controller, Import & Export Delhi in 8 instances on false export documents.
Witness stated that the relevant files i.e. Ex. PW17/A-1 to A-8, Ex. PW17/B1 to B8, Ex. PW20/A, Ex. PW21/A, Ex. PW21/C to Ex. PW21/F, Ex. PW21/P, Ex. PW21/R1 to R7, Ex. PW21/S1 to S7 and Ex. PW21/U1 to U7 mentioned in the letter dated 30.10.1990 Ex. PW29/B were provided by the office of Assistant Chief Controller, Import & Export. During investigation, the Witness conducted search on 8.11.1990 at two premises i.e. residential premises of the proprietor and the office premises of the accused firm. Further, during investigation the bank statements pertaining to the Firm for the period 1988-89 from erstwhile New Bank of India, Tolstoy Marg, New Delhi along with letter dated 1.7.1991 Ex. PW29/C (colly.), were provided to this Witness.
During the course of investigation, vide letter dated 7.5.1991 Witness was also provided by Central Bank of India relevant records consisting of certified copies of bills, bank certificates and other export documents Ex. PW29/D (colly.) pertaining to the above-said firm. The PW further collected relevant documents Ex. PW21/G and Ex. PW21/S1 from the office of Joint Chief Controller, Import & Export, AEPC, Shipping Agents etc. and had also obtained specimen signatures of Seema Sharma (S1 - S9) Ex. PW19/3 which she had given voluntarily in the presence of Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 34 of 81 witness Sh. H.K. Jhand. The Witness stated that the other specimen handwriting of Seema Sharma (S-37 to S-57) was Ex. PW19/4 (colly.) and that both Ex. PW19/3 and Ex. PW19/4 bore his signatures at points A on each sheet.
Thereafter, the questioned documents and documents of specimen signatures/handwriting were examined by GEQD, Govt. of India, Shimla where-after opinion of GEQD Ex. PW19/15 was received. The reasons for the opinion were separately proved as Ex. PW19/17.
Witness further deposed that on completion of investigation, it was revealed that the firm M/s. Seep International had claimed false CCS in 3 instances amounting to Rs. 72,384/- in the year 1989 by submitting false bank certificates purportedly issued by Central Bank of India and the erstwhile New Bank of India.
It needs a highlight that after conclusion of chief- examination on 23.4.2013, the Witness was discharged without being put any question in his cross-examination due to unavailability of the main counsel. However, thereafter application under Section 311 of Cr. PC moved for permission to recall PW 29 for the purpose of his cross-examination, was allowed by Learned Predecessor vide order dated 11.7.2013.
Thereafter PW 29 was cross-examined on 25.9.2013 in which he admitted that the entire material pertaining to the evidence was collected by him alone and that he had personal knowledge of Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 35 of 81 the entire documentary evidence. He also stated that he had recorded the statements under Section 161 Cr. PC of the witnesses.
Witness further stated that 2 firms - 'Seep International' and 'Seep Enterprises' were interrogated in the present case and that the name of Seep Enterprises came up during investigation. The PW never issued any notice under Section 91 of Cr. PC for summoning of the records or seizing any documents from Seema Sharma. PW seized 4 documents from the office premises of Seep International and all of these were cited in the charge-sheet. However, no document was seized from the residence of Seema Sharma.
During his further cross-examination, PW 29 stated that Seep Enterprises had nothing to do with the present case. He denied that M/s. Seep Enterprises and M/s. Seep International were being run by two sisters together. He also denied the suggestion that Ms. Anju Sharma had full interference in the affairs of M/s. Seep International or that there was confusion with the investigating agency regarding the handling of affairs of said 2 firms due to which accused was got falsely prosecuted in the present case. He admitted that the name of shipper mentioned on page 1 of Ex. PW29/D1 at point B is M/s. Seep Enterprises. He also admitted that except the forwarding letter dated 1.7.1991, all the documents available in file Ex. PW29/C, were photocopies. He stated that he could not say whether Bank could have issued multiple bank certificates to M/s. Seep International or M/s. Seep Enterprises. The PW denied that he Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 36 of 81 had managed to obtain photocopies of various documents of above- named 2 firms and got them annexed in file Ex. PW29/C. The Witness could not recollect the exact details of the documents annexed in the said file due to lapse of considerable period, and denied that the documents contained in Ex. PW29/C did not pertain to the accused.
PW 29 further testified in cross-examination that the documents contained in file Ex. PW29/D (colly.) had been collected by him and were made part of the record, admitting them to be the photocopies. He also admitted that there was no specific description of the documents annexed with the letter from the Central Bank of India in their letter dated 7.5.1991 as also that there was no list of documents annexed therewith. He denied that he managed to obtain photocopies of various documents of aforesaid 2 firms and got them annexed in the file Ex. PW29/D and that the documents contained in file Ex. PW29/D were not provided to him by Central Bank of India. Witness stated that the document Ex. PW21/G did not contain name of accused Seema Sharma and could not say whether the said document bore the signature of accused or not. He admitted that the accused had signed in his presence at the time of giving her specimen signatures. He stated that the specimen sheets i.e. S1 to S9 Ex. PW19/3 are the specimen hand-writing of the accused and not her specimen signatures. The Witness again stated that the accused was told to write "Anju Sharma" on specimen sheets i.e. S1 to S3 and Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 37 of 81 was also told to put her signatures on specimen sheets S4 to S9.
He admitted that on his request, the accused had signed as Anju Sharma on specimen signature sheets Ex. PW19/3 (S1 to S3) voluntarily stating the accused had given the specimen signatures voluntarily. He further stated that at the time of taking her specimen signatures, the accused was not informed that the same maybe used by the CBI for the purpose of prosecuting her. Sh. H.K. Jhand (witness to obtaining specimen signatures) was not related to the accused in any manner but witness denied that Sh. Jhand was not an independent witness. Statement of H.K. Jhand under Section 161 of Cr. PC was not recorded. Witness admitted that he did not move any application before the court seeking permission to obtain specimen signatures or specimen hand-writing of the accused. He denied that he had obtained specimen signatures and specimen hand-writing of the accused on Ex. PW19/3 and Ex. PW19/4 under threat and coercion.
PW admitted that he did not obtain the specimen signatures of Ms. Anju Sharma during the course of investigation.
34. Statement under Section 313 Cr. PC - Statement of the accused u/s 313 Cr.PC was recorded twice.
In her first statement recorded under Section 313 Cr. PC, the convict/appellant stated that being in-charge of M/s. Seep Enterprises, her sister Anju Chauhan was looking after the business.
Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 38 of 81She further stated that she had not submitted any CCS certificate and denied submitting any disclaimer certificate or signing as Anju Sharma/ forging the signatures of her sister. The convict/appellant shifted the entire responsibility on the shoulders of her sister Ms. Anju Chauhan by answering to each question put to her by stating that since she was mostly away from Delhi, her sister Anju Chauhan used to sign as Seema Sharma without her permission and that she was not aware as to how many documents were signed/forged by her sister. She also stated that later, a dispute arose between the appellant and her sister with regard to ancestral property whereafter her sister started falsely implicating her in various cases. She further stated that it is because of sour relations between the appellant and her sister that her sister started disowning her signatures on all the documents. The convict/appellant also stated that though she regularly visited Central Bank of India, South Extension Part II Branch but neither was she handed over any documents regarding M/s. Seep Enterprises nor was she asked to sign any documents. The appellant also stated that her sister Anju Chauhan had actively co-operated with the CBI to register the present false case against her. She also stated that the PWs have deposed against her only on the basis of documents having only her name, without any signatures, stamp, seal or endorsement having been made by her. She further denied having submitted any CCS Application on behalf of M/s Seep International and also denied having any controlling authority over M/s Seep International and Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 39 of 81 infact, counter-alleged that it was her sister Anju Chauhan who was looking after the business of M/s Seep International as also Seep Enterprises and she was the one who used to sign as Seema Sharma, for and on her behalf (i.e. on behalf of accused Seema), without her consent (i.e. consent of accused Seema).
In the additional statement of the accused recorded under section 313 of the Cr. PC, accused admitted that M/s Seep International had applied for CCS under Simplified Payment Scheme and also admitted that she had filed the documents alongwith the applications. However, she submitted that documents pertaining to M/s Seep Enterprises do not belong to her and that there was no reason for her to append documents of 'Seep Enterprises' alongwith the application filed on behalf of Seep International. She contended that CBI had misled the court by annexing documents pertaining to M/s Seep Enterprises. She admitted receipt of CCS amount in the account of M/s Seep International against FOB value of exported goods and contended that endorsement on the back of cheque (issued by CCI&E) is proof of the authenticity of the certificate issued by the Bank as CCS amount could be transferred only after verification of the Bank certificate.
The appellant further stated that the complaint was wrongly sent to CBI against M/s. Seep International as neither had she committed any offence nor forged any document and that the complaint had been made only under the confusion which was Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 40 of 81 internal to the JCCI&E. This fraud was not reported by JCCI&E in its books of accounts as wrongful loss caused to it or wrongful gain to the appellant. The appellant also stated that none of the PW has deposed about her forging any document.
35. Since the accused/appellant opted to lead evidence in her defense, 3 witnesses were examined by the accused/appellant as DW's.
36. DW-1 Pritpal Singh deposed that he was known to accused Seema Sharma for the last 20 years and also knew the facts of the present case as he had family relations with the accused. He knew that the present case is pertaining to dealing of 'Seep Enterprises' and 'Seep International', proprietor of which Firms was Anju Chauhan, who happened to be the sister of the accused. Witness had the knowledge about the day to day affairs of both the above- named firms. In his chief-examination, Witness stated that Anju Chauhan used to run both the firms and that accused Seema Sharma also used to manage the affairs of both the firms with Anju Chauhan however, it was Anju Chauhan who was the signing authority of both the Firms. He stated that he could recognize and identify the signatures of Seema Sharma as he had been involved with the family of accused Seema Sharma and also used to accompany her to Bank where he had seen her original signatures.
Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 41 of 81DW 1 further deposed that there was a property dispute pending between Seema Sharma and Anju Chauhan before Hon'ble High Court of Delhi as a result of which the relations between both the sisters were strained. Witness asserted that Anju Chauhan had got Seema Sharma falsely implicated in the present case. Witness stated that he could identify and recognize the genuine and forged signatures of Seema Sharma. Thereafter, DW 1 was shown the documents Ex. PW21/R4, Ex. PW21/R3, Ex. PW21/R5, Ex. PW21/R2, Ex. PW21/R7, Ex. PW21/X, Ex. PW21/C, Ex. PW19/3, Ex. PW19/6 to PW19/10 and Ex. PW19/14 to which the Witness replied that documents Ex. PW21/R4, Ex. PW21/R3, Ex. PW21/R6, Ex. PW21/R2 and Ex. PW21/R7 were the SPS forms used for taking incentives and that the said documents do not bear the signatures of Seema Sharma or Anju Chauhan and were not prepared by Seema Sharma. In response to documents Ex. PW21/R5, Ex. PW21/X and Ex. PW21/C, the Witness replied that the signatures in green colour i.e. Q7 and Q8, Q16 and Q17 and Q5 and A6 of Seema Sharma were made by Anju Chauhan. The Witness deposed that he could not say as to whose signatures were appearing on documents Ex. PW19/3 and Ex. PW19/6 whereas the documents Ex. PW19/8, Ex. PW19/9 and Ex. PW19/10 did not bear the signatures of either Anju Chauhan or of Seema Sharma. Similarly, in response to document Ex. PW19/14, Witness replied that this document did not bear the signatures of either Seema Sharma or of Anju Chauhan. However, he Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 42 of 81 admitted that signature of Anju Chauhan appeared on document Ex. PW19/7.
In cross-examination conducted by Ld. PP for the CBI, Witness stated that during the period 1988 till 1989, he used to work as Manager with 'Seep International' and 'Seep Enterprises' and used to oversee day to day working of the concerns. He stated that he could not produce any document regarding his employment with the said concern. He also stated that though he did not have any expertise in examination of handwriting but he could identify signature of the accused as he used to see her signing and writing in day to day working. Witness denied that the documents Ex. PW21/R4, Ex. PW21/R3, Ex. PW21/R5, Ex. PW21/R2, Ex. PW21/R7, Ex. PW21/X and Ex. PW21/C bore signatures of Seema Sharma or that since he had family relations with accused Seema Sharma, he was deposing falsely to save her.
37. DW-2 Krishan Lal Sharma deposed that he had family relations with Seema Sharma as a family friend since 1984 and was also known to her other sisters and a brother. DW 2 also deposed about some property dispute between Seema Sharma and Ms. Anju Chauhan & other sisters. He did not know about the business of Anju Chauhan.
In cross-examination conducted by Ld. PP for the CBI, the Witness stated that he was not aware whether the property dispute Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 43 of 81 between Seema Sharma and her sisters was pending in any Court of law. He admitted that Seema Sharma was doing the business of import and export of readymade garments but was not aware whether she was continuing the same or not.
38. DW-2 Kamal Kant Khandelwal 2 (should have been numbered as DW3) deposed that he was working as hand-writing and finger print expert for the last 35 years and during that period, had examined more than 4000 cases and appeared as an expert in various courts.
Witness testified that he had examined the disputed signatures and writing marked Q1 to Q8, Q8A, Q9 to Q21, Q59, Q195, Q197, Q199, Q201, Q203, Q205 and Q212 of the present case and compared them with the writing and signatures marked S1 to S9 and S37 to S57 and had also examined rubber seal impression marked Q70, Q71, Q73, Q74, Q89, Q90, Q91, Q106 to Q113, Q129, Q130, Q131, Q146 to Q155 and Q170 to Q175 and compared them with the comparative rubber stamps marked S60 to S64. He further deposed that he had also examined the disputed rubber seal marked Q42, Q61, Q76, Q93, Q116, Q133, Q157 and Q177 and compared them with the rubber seal marked S65 to S69. Similarly, he also examined the disputed rubber stamps seal marked Q180, Q182, Q184, Q186, Q188, Q190, Q192 and Q194 and compared them with 2 Inadvertently, the ld. Trial Judge numbered DW 3 as DW 2.
Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 44 of 81the comparative rubber seal marked A1 to A5.
Witness explained that he prepared their photo enlargement Ex. DW2/1 (colly running into 81 pages) and after careful and minute examination and inter-se comparison, prepared the report Ex. DW2/2 (colly running into 13 pages) In cross-examination conducted by Ld. PP for the CBI, Witness stated that he had given his report and opinion on the hand-writings, signatures and sample seal on the basis of photographs of the original documents, voluntarily stating that he had taken the photographs from the court file with the permission of court.
In reply to a court query, Witness stated that neither had he been provided nor had he gone through the report of GEQD and also could not say as to what was the basis for the report of GEQD.
39. After closing the defense evidence, vide order dated 5.3.2015 passed by the then Ld. CMM (Central District), Sh. Bharat Chugh, the then Ld. MM was summoned as Court witness. This witness, on 31.3.2015 deposed as CW1 to the effect that vide order dated 18.10.2014, the file of present case was marked to him by Ld. CMM (Central District) for disposal of the application dated 18.10.2014 filed by Shri Kamal Kant Khandelwal (DW 3). The application was allowed vide order dated 5.11.2014 for inspection of the file by the expert/applicant and taking of the photographs/images Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 45 of 81 of relevant documents. The coloured photographs from digital camera were taken by the applicant/expert on 20.11.2014 in the presence of the Witness (CW1) as per the table 1.1 which was a part of order dated 20.11.2014.
In cross-examination conducted by Ld. Defense Counsel, the Witness stated that the exhibited documents mentioned in table No. 1.1 of order dated 20.11.2014 were made available from the judicial record to the applicant/expert on 'as and where is' basis for inspection in his presence. He admitted that exhibits mentioned in table 1.2 of order dated 20.11.2014 could not be made available for photographs since as per the report of Assistant Ahlmad Mr. Ashish Gupta posted in the court of Ld. CMM (Central), same could not be found on the file.
40. At the stage of final arguments before the Ld. Trial Court, the main grounds of defense pleaded before the ld. trial court on behalf of the appellant (accused at the relevant time) were -
(i) the RC/ FIR was registered on the basis of a complaint by an Officer who was not competent to file the complaint.
(ii) accused has been implicated by her sister Anju Chauhan who was actually the Proprietor of M/s Seep International, on account of a running property dispute;
Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 46 of 81(iii) the signatures on the documents submitted for claiming CCS could not be conclusively proved to be that of the accused; and
(iv) that the cash compensation was sanctioned to the accused after proper scrutiny/verification of the documents submitted to the competent authority which included bank attested documents.
41. Ld. Trial court, however, rejected the arguments put forth on behalf of the accused. Ld. Trial court held that evidence on record conclusively proved that the accused (appellant here-in) had cheated o/o Jt. CCI&E and had claimed CCS benefit by forging documents, using forged documents and filing false documents. As a corollary, appellant was convicted for the offence u/s 420/467/468 IPC and u/s 468 r/w Section 471 IPC.
42. To briefly recapitulate, the Appellant has been convicted for committing forgery and using forged documents for cheating the public exchequer in the course of claiming monetary/cash benefit under the Cost Compensatory Support ('CCS' for short) scheme for exporting certain goods i.e. readymade garments in this case. CCS benefit is granted by the o/o Joint Controller of Import & Exports. The CCS enables the 'Exporter' to claim refund of 8% of the FOB (Free on Board OR Freight on Board) invoice as 'export promotion incentive' Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 47 of 81 granted by the Government of India and is sanctioned by the competent authority on submission of certain prescribed documents by the concerned exporter. Free On Board is one of the 2 accepted courses of international transportation of goods involved in trans- boundary commercial transactions wherein the responsibility of the goods sold passes on to the buyer once the goods are delivered at the port of origin by the seller.
43. The appellant was the proprietor of M/s Seep International and has been found guilty by the ld. Trial Court of cheating the public exchequer for claiming CCS by forging bank certificates and disclaimer certificates, inflating the FOB value by submitting false invoice, submitting false Airway Bill and claiming CCS for export of goods which were of a different description than the one claimed to have been exported.
44. The trial was conducted in respect of 3 specific applications submitted by the appellant to claim 'CCS' i.e. 1 application dt. 6.7.1989, and 2 applications, both dt 17.7.1989. The applications were submitted to the o/o Joint Chief Controller of Import & Exports by 'Seep International'. Qua the application dt. 6.7.1989, it had been alleged that the appellant-accused had inflated the invoice from Rs. 2.96 lacs to Rs. 6.96 lacs for having exported 4000 pieces of a particular garment and in the process, claimed excess CCS of Rs.
Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 48 of 8130,400/-.
45. Qua the 2 applications dt. 17.7.1989, allegations were identical. In regard to one application, Appellant allegedly had claimed CCS worth Rs. 25,600 by submitting a false Bank certificate of export (purportedly issued by New Bank of India) for having exported readymade garments of the value of Rs. 3,20,000/, submitted shipping bill which was actually in the name of Mangalam Arts (unconnected 3rd party) and for a different description of goods (i.e. not readymade garments), a false Airway Bill of ALITALIA airlines, and a forged disclaimer certificate. Regarding the 2 nd application which also was dt. 17.7.1989, allegations leveled were of claiming CCS of Rs. 16,334 on exported goods of the value of Rs. 2,04,800/- by submitting forged Bank certificate of export (purportedly issued by New Bank of India), shipping bill which actually was in the name of an unconnected 3rd party i.e. M/s Abbott, for goods of a different description, and a forged disclaimer certificate.
46. Ld. Trial court while holding the appellant guilty, relied substantially on her admission recorded in the additional statement u/s 313 Cr.PC that she had submitted each of the documents on behalf of M/s Seep International for claiming CCS.
47. For holding that accused had committed forgery, ld. Trial Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 49 of 81 court relied on the testimony of PW 19 who was examined as the hand-writing expert, to conclude that the signatures on the forged documents i.e. disclaimer certificates were appended by the accused. These disclaimer certificates were purportedly issued by Anju Chauhan who is sister of the appellant, and who, vide these disclaimer certificates, gave 'no-objection' to the effect that the CCS may be claimed by 'Seep International' for the exports done by 'Seep Enterprises'. Though a hand-writing expert was also produced as a defense witness i.e. DW 2, Ld. Trial court did not find his testimony inspiring in view of the fact that the report submitted by him appeared to be lacking in material details regarding effective examination of the questioned signatures with the specimen signatures.
48. Ld. Trial Court further relied on the testimony of witnesses from the concerned Banks to hold that documents submitted by the accused for claiming CCS benefit, which documents were purportedly issued by the Bank i.e. Bank certificates of export, were infact forged. However, ld. Trial Court held that though it could not be proved as to who had forged the bank documents, but it stood proved that the accused had used forged documents.
49. Ld. Trial Court also relied on the testimony of customs officials and officials from the airlines cargo to conclude that accused had submitted false airway bills to prove that her firm 'Seep Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 50 of 81 International' had exported readymade garments.
50. Reasons Given By Ld. Trial Court For Conviction -
1. Qua the argument that JCCI&E had no authority to file complaint - ld. Trial court discarded the argument by holding that as per section 2 (d) of the Cr.PC which defines 'complaint', a complaint can be filed by any person who has information of commission of an offence.
2. Accused in her statement recorded u/s 313 Cr.PC, admitted filing of CCS application Ex. PW 21/R1, Shipping Bill Ex. PW13/1, Bank certificate of Export Ex. PW 21/P, all of which were filed on behalf of M/s Seep International i.e. documents pertaining to application dt. 6.7.1989. Accused further admitted that Bank certificate Ex. PW 21/P was issued after seeing invoice Ex. PW 21/Q (value of goods shown in Ex. PW21/Q was Rs. 6.96,000/-) and Airway Bill Ex. PW 13/1. Accused has also admitted to filing of VISA application Ex. PW4/F along-with invoice Ex. PW 4/G where-in the value of goods stated was much less than what was mentioned in the CCS application and accompanying documents to claim CCS benefit but denied her signatures on the stamp of M/s Seep International on these documents. Accused also admitted to receiving payment against her claim submitted vide application Ex. PW 21/R1. Based on documentary evidence, Ld. Trial court thus concluded that accused has admitted to submitting CCS claim application Ex. PW 21/R alongwith Bank Certificate of Export Ex. PW 21/P, Shipping Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 51 of 81 Bill Ex. PW 13/1 on the basis of an inflated Invoice Ex. PW 21/Q (value of goods shown was Rs. 6,96,000) though she has denied her signatures on the application. Ld. Trial court went on to hold that since the accused also admitted to filing of VISA application to AEPC along-with invoice wherein the value of goods mentioned was much less (Rs. 2,96,000), prosecution had been able to prove beyond reasonable doubt that accused claimed excess CCS benefit by submitting inflated invoice Ex. PW21/Q.
3. Regarding Appellant's signatures on the questioned documents i.e. CCS application dt. 6.7.89, applications dt. 17.7.89 and disclaimer certificates, 2 reports of handwriting experts were on record but which contradicted each other. One report was filed by the Prosecution - Ex. PW19/15 - which confirms that after comparison of specimen signatures of the accused 3, questioned signatures on CCS application Ex. PW 21/R1 i.e. Q20 and Q21, CCS Application Ex. PW 21/R5 i.e. Q7 and Q8, Disclaimer certificate Ex. PW 19/E i.e. Q 203, and Disclaimer Certificate Ex. PW19/B were that of accused. On the other hand, Handwriting expert defense witness DW-2 submitted his report Ex. DW2/2 according to which the questioned signatures on the CCS claim applications as also the questioned signatures on the disclaimer certificates were not those of the accused. Ld. Trial court placed reliance on Ex. PW 19/15 after observing that PW 19 (Government Examiner) and had given his opinion on the comparison of specimen signatures with questioned 3 Specimen signature of the accused were exhibited as Ex. PW 19/3 & 4 Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 52 of 81 signatures by giving a detailed reasoning whereas DW 2 did not touch upon the material aspects of comparison.
4. Further, as per the report of GEQD PW 19, the questioned seal of New Bank of India (Q 129, Q,130 & Q131) on the bank certificate of export Ex. PW17/A2 i.e. in relation to 2nd CCS claim application dt. 17.7.89 did not match with the admitted round seal impression of New Bank of India Ex. 19/8. DW 2 however did not give any opinion regarding the seal impression on the ground that original seals of the Bank were not provided and on the same ground, also disputed the GEQD report. Ld. Trial Court however dismissed the objections of DW 2 on the ground that while being cross-examined, GEQD PW 19 was not questioned on the absence of original seals for comparison.
5. Ld. Trial Court further concluded that the airway bills vide which goods had been shown to have been exported to M/s Momento i.e. in respect of the 2 CCS applications dt. 17.7.89 were false bills. The actual airway bills bearing nos. 044822 and 044823 were of different entities and for different description of goods.
51. Before adverting to the merits of the arguments addressed in the present appeal, it will be appropriate to give a brief résumé of the 'relevant' exhibits i.e. documentary evidence since the prosecution case substantially rested on documentary evidence. Since the trial was conducted in respect of 3 specific applications, it would be convenient Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 53 of 81 to outline the relevant documents concerning each of the 3 applications separately.
Qua the first application which was dt. 6.7.1989, the relevant exhibits are -
Ex. PW21/R1 - Application dt. 6.7.89 submitted by Seep International to the o/o Chief Controller of Import & Export (CCIE) for claiming CCS.
Ex. PW 21/Q - Bank attested Invoice no. SI/03/88 Dt.
15.11.88 regarding export of readymade garments to Silver Grace Corporation, New York wherein value of exported goods has been shown to be Rs. 6,96,000/-.
Ex. PW 21/P - Bank certificate of export issued by Central Bank of India.
Ex. PW 13/1 - Shipping Bill/Airway bill no. 121511 Ex. PW 4/F - Application submitted to Apparel Export Promotion Council (AEPC) for obtaining Export Entitlement Certificate, known as VISA - wherein value of exported goods to Silver Grace Corporation, New York was shown as Rs. 2,96,000/- and invoice no.
SI/03/88 dt. 15.11.88 has been shown to be of the value of Rs. 2,96,000/.
Ex. PW 4/E - Special customs invoice no. SI/03/88 dt.
Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 54 of 8115.11.88 issued by AEPC for United States Customs Service - value of goods was shown to be INR 2,96,000.
Ex. PW4/G - Invoice issued by Seep International no.
SI/03/88 dt. 15.11.88 showing FOB value of Rs. 2,96,000 for M/s Silver Grace Corporation. This invoice was submitted by 'Seep International' to AEPC for seeking export entitlement certificate (i.e. VISA).
Ex. PW 8/1 - Cheque for payment of cash compensatory support of Rs. 48309, issued by the o/o Joint Chief Controller of Import & Export.
Ex. PW 19/15 - Report of the Government handwriting expert.
Qua the second application dt. 17.7.1989, the relevant exhibits are - Ex. PW 21/R5 - Application dt. 17.7.89 in regard to CCS claim of Rs. 25600 for exporting cotton readymade garments worth Rs. 3,20,000/-.
Ex. PW 17/B2 - Invoice no. SE/13/89 dt. 20.3.89 issued by 'Seep Enterprises' in name of m/s Momento for 5000 cotton readymade garments having FOB value of Rs. 3,20,000/-
Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 55 of 81Ex. PW 6/E - Shipping Bill no. 044823 dt. 9.4.89 for export of 5000 cotton readymade garments of FOB value of Rs. 3,20,000/- vide invoice no. SE/13/89 to m/s Momento, Amsterdam Avenue, New York (this was also issued for SEEP Enterprises) -
Ex. PW 15/K 1 - Application by 'Seep Enterprises' to AEPC for VISA to export 5000 pieces of garments.
Ex. PW 15/K 2 - Invoice issued by 'Seep Enterprises' to export 5000 pieces of garments.
Ex. PW 15/A - VISA issued by AEPC issued in the name of 'Seep Enterprises' bearing invoice no.
SE/13/89 showing FOB value of Rs.
3,20,000 Ex. PW 19/E - Disclaimer Certificate purportedly signed by Anju Sharma (Prop. Of Seep Enterprises) declaring she has no objection if CCS for export of goods vide invoice no. S/13/89 dt.
20.3.89 is claimed by 'Seep International'.
Ex. PW 28/A - Extract from the Central Regulation Unit (CRU) entry register maintained by DOS Exports, Cargo Terminal, IGI Airport which shows that shipping Bill no. 044823 was destined for Venice Italy, the Exporter's Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 56 of 81 name was Mangalam Arts, Delhi and the goods description was Silk goods.
Ex. PW 1/1 - Airway bill no. 055-4 Ex. PW 28/A -925- 2405 dt. 11.4.89 vide which consignment of 3800 readymade garments were shown to have been dispatched by Alitalia Airlines.
Ex. PW1/2 - Cargo manifest of Alitalia airlines.
Ex. PW 17/A2 - Bank certificate of Export of Seep Enterprises issued by New Bank of India mentioning invoice value as Rs. 3,20,000 and invoice no. SE/13/89 dt. 20.3.1989.
Ex. PW19/8 - Admitted round seal impression of New Bank of India.
Ex. PW19/7 - Opinion of GEQD regarding Bank seal impressions on Bank Certificates of Export.
Qua the third application, also dt. 17.7.1989, the relevant exhibits are -
Ex. PW 21/R3 - Application submitted by 'Seep
International' for claiming CCS benefit of
Rs. 16,384 for export of readymade
garments worth of FOB value of Rs.
2,04,800.
Ex. PW 6 - shipping bill no. 044822 dt. 9.4.89 signed by
Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 57 of 81
proprietor of 'Seep Enterprises' as the
consignor and M/s Momento USA as the
consignee vide invoice no. SE/12/89 dated
20.3.89.
Ex. PW15/B - VISA issued by APEC in the name of 'Seep
Enterprises' for goods having FOB value Rs.
2,04,800.
Ex. PW15/K6- Invoice issued by 'Seep Enterprises' for
3200 pieces of readymade garments.
Ex. PW17/B7 - Bank certified Invoice no. SE/12/89 dt.
20.3.89 issued by Seep Enterprises in the
name of m/s Momento for export of 3200
readymade garments.
Ex. PW 17/A-7 - Bank Certificate Of Export (purportedly)
issued By New Bank of India.
Ex. PW19/B - disclaimer certificate (purportedly) signed
by Anju Sharma (Prop. Of Seep Enterprises)
declaring she has no objection if CCS for
export of goods vide invoice no. SE/12/89
dt. 20.3.89 is claimed by 'Seep
International'.
Ex. PW19/8 - Admitted round seal impression of New
Bank of India
Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 58 of 81
Arguments addressed in Appeal:
52. Ld. Counsel for the appellant assailed the judgment of conviction by highlighting the following -
1. The entire documentary prosecution evidence was led by way of photocopies. No explanation was rendered as to why secondary evidence was being led and why was the primary evidence withheld.
2. Prosecution was unable to explain the delay of 7 months in filing the FIR.
3. The cogent testimony of DW 2 (defense handwriting expert) was discarded in favour of GEQD PW 19 without any legally sustainable basis.
4. The testimonies of DW 1 and DW 2 who were acquainted with the affairs of Seep International, was also rejected by the trial court without assigning any definitive reasons.
5. The ld. Trial court failed to appreciate that a number of documents relied upon by the prosecution were actually of Seep Enterprises which was a firm run by the sister of appellant whereas the Firm of appellant was Seep International. Both the enterprises were distinct and were operating from different addresses.
Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 59 of 8153. Ld. PP appearing for the CBI, however, stoutly defended the judgment and highlighted that ld. Trial court correctly appreciated the evidence brought on record.
54. I have carefully considered the rival submissions and re- appreciated the evidence on record.
FINDING
55. The Charge against the appellant of forgery, using forged and false documents and cheating the public exchequer while claiming cash compensatory support for exporting garments was in respect of 3 specific applications - application dt. 6.7.89 and 2 applications dt. 17.7.89. The evidence led in regard to each of these applications is required to be discussed separately.
56. First application dt. 6.7.89 was in regard to an export consignment of ladies' rompers (short length divided single dress). The export consignee was shown to be Silver Grace Corporation, USA. The allegation in regard to this application was that the appellant-accused submitted an inflated invoice to claim higher CCS benefit and thus cheated the o/o JCCI&E. The evidence led by the prosecution revealed that in order to claim a higher CCS amount, appellant inflated the invoice value from Rs. 2,96,000 to Rs. 6,96,000.
Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 60 of 81Prosecution evidence shows that while submitting the CCS application with the office of Chief Controller of Import and Export (CCIE), the invoice submitted by the appellant shows the value of invoice as Rs. 6,96,000 i.e. Ex. PW21/Q (bank attested invoice). Appellant, in her additional statement, recorded u/s 313 of the Cr. PC categorically admitted to having submitted application for claiming CCS incentive i.e. Ex. PW 21/ R1 and further admitted to having submitted invoice Ex. PW 21/Q along with the CCS application Ex. PW 21/R1. Bank witness PW 3 further proved that Bank certificate of Export Ex. PW21/P was issued after seeing Ex. PW21/Q. However, while applying to AEPC (Apparel Export Promotion Council), the invoice of export consignment submitted by the appellant's firm Seep International was shown to be of the value of Rs. 2,96,000/ i.e. Ex. PW4/G. AEPC is the officially recognized body which facilitates the exporters of readymade garments by identifying new markets, assisting in employment generation and providing access to new technologies. It needs a highlight that at the relevant time, exporters of readymade garments needed a specific quota authorization from the AEPC before they could export the garments. Appellant has admitted to filing of application with AEPC for seeking export entitlement along with invoice Ex PW4/G where the invoice amount was mentioned as Rs. 2,96,000, as being a matter of record. Additionally, this fact has been proved by PW 4 independently also who appeared as a witness from the o/o of AEPC. Significant to highlight that PW 4 Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 61 of 81 was not even cross examined on Ex. PW 4/G which is the invoice submitted by the accused mentioning value of export consignment as Rs. 2,96,000/-. Thus, when the appellant applied to the AEPC for being granted the necessary authorization which is technically called VISA, the invoice value of the consignment stated was of a much less value. It needs a highlight that the invoice no. (SI/03/88) and date of invoice (15.11.1988) is same in the Bank attested invoice (Ex. PW21/Q) and the invoice submitted for seeking export authorisation from AEPC (Ex. PW4/G). In other words, for the same export consignment, appellant mentioned 2 different amounts in 2 different invoices, first when she applied to AEPC for seeking export entitlement certificate and subsequently, when she applied to the o/o CCIE for seeking CCS benefit.
57. It needs a further highlight that for claiming CCS incentive, along with the CCS claim application, the exporter has to submit a bank certificate of export from its Bank where it maintains an account. When the CCS benefit is eventually released, the cheque issued by the Jt.CCI&E mentions on its reverse the bank certificate of export number issued by the Bank of the exporter. In the present case, the relevant bank certificate of export was exhibited as Ex. PW21/P. This bank certificate of export Ex. PW 21/P also mentioned the invoice amount as 6,96,000. The appellant admitted that Bank certificate of export was issued on the basis of invoice Ex. PW21/Q Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 62 of 81 showing the inflated invoice amount of Rs. 6,96,000. Furthermore, appellant also admitted to filing the shipping bill Ex. PW 13/1 along with the application for claiming CCS benefit wherein also the invoice amount mentioned was Rs. 6,96,000/-. It is also not in dispute that the amount of CCS released by the office of CCIE after allowing the application dt. 6.7.89, was deposited in the account of Seep International. The ld. Trial court was, therefore, correct in returning a finding that the appellant used inflated invoice for the purpose of securing a higher amount of CCS.
58. The only significant defense raised by the appellant before the ld. trial court as also before this court was that the appellant did not sign the application for claiming CCS Ex. PW 21/R1. This argument however becomes inconsequential in the face of the facts that appellant admits to submitting CCS claim application Ex. PW 21/R1, and to receiving the CCS benefit pursuant to application Ex. PW21/R1. Furthermore, even on CCS application Ex. PW21/R1, the GEQD who testified as PW 19, gave his opinion that it bore the signatures of accused Seema Sharma. Ld. Counsel for the appellant assailed the report of the GEQD (Govt. Examiner of Questioned Documents) by arguing that the GEQD did not compare the specimen signatures of the appellant with the original questioned documents. However, there is nothing to show from record that the GEQD used photocopies instead of originals to compare the signatures. Ld. Trial Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 63 of 81 court discussed at length the respective reports submitted by GEQD who appeared as PW 19 and that of defense handwriting expert witness who appeared as DW 2. Ld. Trial court, after carefully examining the report of the GEQD carefully and also of DW 2, concluded that the report of GEQD was a very detailed one which considered minute particulars of the specimen signatures and that of the questioned Documents before opining that questioned documents including PW 21/R1 had been signed by the appellant. The GEQD report shall be referred to again while discussing the relevant evidence qua the 2 other CCS applications dt. 17.7.89.
59. In the final analysis, this Court after scanning the trial court record carefully, confirms the finding of the ld. Trial court to the effect that while applying for CCS benefit vide application dt. 6.7.1989, the appellant purposely submitted an inflated invoice to the o/o CCIE for claiming enhanced CCS with the intention to cheat the said office and succeeded in the objective, thereby committing offence u/s 420 IPC.
60. Moving to the other 2 applications, the 2 nd and the 3rd application submitted by the appellant for claiming CCS incentive were both dated 17.7.89. The allegations leveled qua these 2 applications were common i.e. Appellant sought CCS incentive by filing false disclaimer certificates, forged/false airway bills and forged Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 64 of 81 bank certificates. However, the evidence led to prove the allegations qua these 2 applications would still have to be discussed separately for the purpose of clarity.
61. The 2nd CCS application dt. 17.7.89 was proved as Ex. PW 21/R5. This application was filed by 'Seep International' and the Appellant admitted to having submitted all such applications as were filed by 'Seep International' being a matter of record, in her additional statement u/s 313 Cr.PC. The application was for seeking CCS for Rs. 25,600/- against readymade cotton apparel export consignment of the value of Rs. 3,20,000. Qua this application, the allegation against the appellant was of claiming the CCS benefit by submitting a forged bank certificate of export, and forged disclaimer certificate. The shipping bill no. 044823 dt. 9.4.1989 (Ex. PW6/E) was of Seep Enterprises and purportedly signed by the proprietor of Seep Enterprises. The shipping bill mentions invoice no. SE/13/89 dt. 20.3.89 and the shipping agent is shown as Al-Italia. However, as per the testimony of PW 28 who was from the Customs Department, the shipping bill no. 044823 was of Exporter Mangalam Arts and the goods actually exported vide this shipping bill were Silk goods, which were exported to Italy. In support of his testimony, PW 28 produced attested copy of entry of register of Shipping Bills as Ex. PW28/A.
62. Dealing first with the alleged forged disclaimer certificate Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 65 of 81 i.e. Ex. PW 19/E, the said certificate was purportedly issued by proprietor of Seep Enterprises which was a firm run by the sister of the appellant i.e. Anju Sharma nee Anju Chauhan. Vide this certificate, Seep Enterprises handed out a disclaimer that it will not claim CCS benefit qua goods exported vide invoice no. SE/13/89 dt. 20.3.89 and shipping bill no. 044823 dt. 9.4.1989 pertaining to consignment in favour of M/s Momento, and that M/s Seep International will be filing the said CCS claim, and further that M/s Seep Enterprises will have no objection to the same. However, when Anju Sharma entered into the witness box as PW 16, she denied having issued the disclaimer certificate Ex. PW 19/E. The signatures of Anju Chauhan appearing on this disclaimer certificate however, was not examined by the GEQD so as to corroborate PW Anju Chauhan's assertion that she never signed the disclaimer certificate. The GEQD only examined the questioned signatures with those of the admitted signatures of the accused. This is the major argument which has been addressed before this court to assail to assail the testimony of PW19 GEQD. Ld. Counsel for the appellant-accused highlighted the testimony of Investigating Officer as PW 27 who admitted in his cross examination that during investigation, he did not obtain the signatures of Anju Chauhan. It was forcefully argued before this court that ld. Trial court could not have possibly appreciated the evidence in the correct perspective since there was no expert report/finding that Anju Chauhan's signatures were also examined with the disputed signatures Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 66 of 81 and found to be different. It was submitted by the defense that non- comparison of the admitted signatures of Anju Chauhan with the questioned signatures on the disclaimer certificates was a major investigative lapse. Prosecution thus failed to lead any conclusive proof that the disclaimer certificate was not signed by Anju Sharma nee Chauhan.
63. In the understanding of this Court, the above stated argument advanced is definitely persuasive. It appears to be plain logic that if the signatures appearing on an allegedly forged document is of a 3rd person, in order to effectively conclude that the said 3 rd person did not sign actually sign the document but infact it was the accused only who had appended the signatures, it was necessary for the Investigating Officer to also have taken the specimen signatures of the 3rd person and sent for comparison with the questioned signatures. That would have been the surest way to determine, at the investigative stage, whether accused was hiding the truth or whether her sister Anju Chauhan had any role to play in the execution of the disclaimer certificate. At this stage, it is relevant to highlight that ld. PP, before the trial court, did not cross examine DW 1 in regard to his assertion that both Anju Sharma nee Chauhan and Seema Sharma used to run the affairs of Seep International and 'Seep Enterprises'. In the present case, the disclaimer certificate was allegedly signed by the accused but 'purportedly' signed by the accused's sister Anju Chauhan. It is Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 67 of 81 strange that the Investigating Officer overlooked this basic aspect and despite opportunity, did not take the specimen signatures of Anju Chauhan. Infact, Anju Chauhan while deposing as PW 16, in her cross examination, stated that her statement was written by the IO and she signed it which means that Anju Chauhan was all along available during the investigative stage. There is thus no excuse for the lapse of not taking the specimen signatures of Anju Chauhan. To the best of the understanding of this Court, the opinion of GEQD PW 19, even though much detailed, loses much of its significance in regard to the disclaimer certificates in view of the fact that there was no comparison of the disputed signatures with those of the person who ostensibly signed it i.e. Anju Chauhan.
64. There is an additional dimension to the allegation of forged disclaimer certificate which was not discussed by the Trial court. Qua the 2 CCS applications dt. 17.7.89, the case propped up by the prosecution was that accused had forged the disclaimer certificate by signing it as Anju Chauhan. For proving the forgery of Anju Chauhan's signature, the prosecution also had to establish the foundational facts which in the present case was with regard to the ownership of Seep Enterprises. It is obvious that disclaimer certificate on behalf of 'Seep Enterprises' could have been given to 'Seep International' only if Anju Chauhan had been the proprietor/owner of 'Seep Enterprises'. Prosecution had to thus lead the evidence first to Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 68 of 81 prove that Anju Chauhan was the proprietor of 'Seep Enterprises' and then should have led evidence to prove that accused forged signatures of Anju Chauhan as the proprietor of 'Seep Enterprises'. There is not a single witness or a document which has been proved by the prosecution to establish that Anju Chauhan was the proprietor of 'Seep Enterprises'. Interestingly, Anju Chauhan as PW 16 categorically denied having anything to do with 'Seep Enterprises'. This leads us to a very relevant question - if Anju Chauhan had nothing at all to do with 'Seep Enterprises', why would appellant Seema Sharma forge signatures of Anju Chauhan? The ld. Public prosecutor had no answer to the question.
65. Additionally, it is also equally important to highlight that the export entitlement certificates/quota of 'Seep Enterprises' i.e. VISA were not found to be fake. Invoice Ex. PW15/K2 for 500 pieces of cotton readymade garments having FOB value of Rs. 3,20,000, application for export shipment Ex. PW 15/K1, Special Custom Invoice (VISA) Ex. PW 15/A issued by AEPC, shipping bill Ex. 15/K4, were all in the name of Seep Enterprises. PW 15's testimony confirms the authenticity of the applications submitted on behalf of 'Seep Enterprises' and the VISA granted to it. Not only this, as per PW 1, the export consignment of 3800 pieces of readymade garments vide invoice no. SE/13/89 dt. 20.3.89 issued by 'Seep Enterprises' in the name of m/s Momento was dispatched vide airway bill no. 055- Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 69 of 81 4925-2405 dt. 11.4.89 of Alitalia Airlines. PW 1 did not state that the said airway bill was a false or a forged document. The shipping bill Ex. PW6/E for the above consignment had the signatures of proprietor of 'Seep Enterprises' and even though it was a questioned signature, it was not proved by the prosecution, as has been noted by the trial court in para 44 of its judgment. The above discussion shows that 'Seep Enterprises' was not a fake identity and yet there is no proof of as to who was its owner/proprietor. In the absence of such proof, it is difficult to impute any motive to accused/appellant Seema Sharma for forging the signatures of Anju Chauhan. Infact, PW6 stated that Ex. PW6/E did not bear the real stamp of his Firm and the same was fake. However, the signatures of Prop. of Seep Enterprises appearing on Ex. PW6/E could not be proved by the prosecution as having been forged even though it was a questioned signature. The corollary is that there is a significant possibility of Ex. PW6/E having been forged by Prop. of Seep Enterprises by use of fake stamps of 'Sky Train' since signatures of 'Prop.' of Seep Enterprises was not found to be forged by the GEQD. There was thus someone else who was controlling Seep Enterprises and forging documents. Not just Ex. PW6/E, Shipping bills Ex. PW6/D, Ex. PW6/F and Ex. PW6/G, all of which pertained to Seep Enterprises, also bore fake stamp of the firm of PW6 i.e. Sky Train Services. However, all of them including Ex. PW6/E bore stamp of Seep Enterprises and the signature of the Prop. of Seep Enterprises and all of these were questioned signatures i.e. Q-211, Q-207, Q-209 Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 70 of 81 and Q-210. But despite this, GEQD did not return any finding on any of these 4 questioned signatures.
66. Ld. Trial Court also relied on the testimony of PW 28 to hold that shipping bill no. 044823 was infact issued in the name of Managalam Arts and not 'Seep Enterprises'. However, detailed scrutiny of the testimony of PW 28 reveals that it is hardly worth of any value. PW 28 was a Customs Inspector at the relevant time. He proved the extract of warehousing register from 1.4.89 to 11.5.89 as he was dealing with airline export warehouse. The extracts were of page no. 158 and 159 of the warehouse Register. In his cross-examination, Witness admitted that the original warehousing register was not on judicial record. In his Chief-Examination also, PW 28 had proved the extracts of the warehouse Register. What is even more interesting is that the Witness admitted in his cross-examination that even in 1990 i.e. during investigation, he was only shown the extract of the Register. As far as the Court can gather, it appears that that the original Register was not either shown to the Witness nor brought before the Court. In such a fact situation, the extract entries proved by PW 28 are inadmissible evidence. What makes these extract entries even more doubtful is that these were not accompanied by any EGM number which is mentioned on any document that is sent to the Customs by the airline after an export consignment is airlifted, as per the deposition of PW 28. Furthermore, none of these extract entries bear Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 71 of 81 endorsement of any airline in the absence of which it cannot be said for sure whether the export consignment has actually been airlifted and as a corollary there is no definite proof that the shipping bill was actually of a different entity. For the above reasons, this Court does not find the testimony of PW 28 of any worth so as to hold that the Appellant had used forged documents.
67. Further, the Bank certificate of export submitted by the appellant along with above CCS application was also found not to have been issued by New Bank of India (now merged with Punjab National Bank). In this regard, PW 17 who appeared from the said Bank was categoric in his deposition that the seal of New Bank of India affixed on the bank certificate was not the original seal. Witness explained the finer details of the original seal of the Bank. Further the questioned bank seal was compared by the GEQD with the admitted round seal impression i.e. Ex PW 19/8. As per the report of GEQD, the questioned seal impression could not be superimposed on the admitted seal impression. Further, words such as 'Bio' and 'NEW DELHI' (in capitals) in the admitted seal impression were absent and in small letters, respectively, in the questioned seal and hence, the conclusion was that the bank seals on the certificates were false. The defense handwriting expert DW 2 on the other hand opined that in the absence of original seals, comparison was not possible. The ld. Trial court specifically observed (in para 50 of the judgment) that in the Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 72 of 81 cross-examination of PW 19 (GEQD), no question was put to the witness as to whether comparison of questioned seal was not possible with the admitted 'seal impressions' in the absence of original seal. Before this Court, in addition to the argument that original seals were not provided by the Bank for comparison by the GEQD, ld. Counsel for the appellant argued that if the Bank certificate was forged, how could the CCS cheque amount be credited since the bank certificate number is mentioned on the reverse of cheque issued by the Jt. CCI&E and the presenting bank has to verify the bank certificate number. When ld. Public Prosecutor was asked to explain the same, he was unable to offer any explanation.
68. Perusal of the witnesses' testimonies reveals that no less than 4 prosecution witnesses i.e. PW2, PW5, PW8 and PW10 categorically deposed that bank certificate of export number is mentioned on the reverse of the cheque which is issued by the Jt. CCI&E after approving the CCS incentive application and this bank certificate of export number is to be checked by the Bank where the Cheque is presented before the cheque is sent for clearance. The cheque issued by the o/o Jt. CCI&E is presented by the party claiming the CCS benefit to its Bank which has issued the Bank Certificate of export. Thus, the prosecution must explain that if the bank certificate of export was forged, how could the cheques issued by the Jt. CCI&E be presented by the exporter's Bank for clearance if the presenting Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 73 of 81 Bank had to first verify certificate of export number mentioned on the reverse of the cheque? Even assuming the best in favour of the prosecution i.e. the GEQD report on bank certificate of exports is accepted on face value, there is an equally potent evidence which strongly suggests that the bank certificates of exports were verified by the Bank which issued it before sending the cheques for clearance. This is thus a situation where the prosecution has not been able to cross the thresh-hold of proving the allegation of forgery beyond all reasonable doubt.
69. The 3rd CCS application Ex. PW 21/R3, also dt. 17.7.89, was submitted by Seep International for claiming CSS incentive against export consignment of cotton readymade garments. The FOB invoice amount was of Rs. 2,04,800 and the shipping bill dt. 044822 was dated 9.04.1989. Appellant was sanctioned CCS for Rs. 16,384/-. There is no dispute that this application was filed by the appellant since in her supplementary statement recorded u/s 313 Cr.PC, she admitted to having submitted all applications filed by M/s Seep International and that all such applications bear her signatures. Additionally, even the GEQD in his report (Ex. 19/15) has confirmed that this application was signed by the appellant at point Q3 and Q4. The deposition of PW 21 that M/s Seep International submitted the application has not been contradicted in his cross-examination. As in the case of 2nd CCS application, the 3rd application was also Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 74 of 81 accompanied with a bank attested invoice (invoice no. SE/12/89 dt. 20.3.89), bank certificate, shipping bill (through shipping agent AlItalia) and provisional certificate of export. The shipping bill Ex. PW-6 mentions M/s Momento USA as the consignee and the consignor as M/s Seep Enterprises.
70. Just as in the case of 2nd CCS application, the signature of 'proprietor' of M/s Seep Enterprises was not compared by the GEQD with the signatures appearing on the disclaimer certificate Ex. PW 19/B. However, questioned signature on the disclaimer certificate was examined and compared by the GEQD with the specimen signatures of the appellant-accused and opined to be that of the appellant. Additionally, Anju Chauhan denied having signed the disclaimer certificate or filing the CCS application qua invoice no. SE/12/89 dt. 20.3.89. For the reasons already recorded above while dealing with disclaimer certificate Ex. PW 19/E, I don't find the examination report of expert witness/GEQD PW 19 to be sufficient proof to hold that it was the appellant-accused who had signed as Anju Chauhan by forging her signatures. The examination of the 2nd disclaimer certificate also suffers from the same major investigational lapse in as much as signatures of Anju Chauhan nee Sharma were never sent for comparison with the questioned signatures. Furthermore, signature of the Prop. of Seep Enterprises on Ex. PW6 i.e. Q-208 was again a questioned signature on which the GEQD returned no finding.
Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 75 of 8171. Similarly, PW 17 Arun Chopra's testimony to the effect that the bank certificate Ex. PW 17/A-7 purportedly issued by New Bank of India was infact never issued by the Bank is to be tested against the admitted fact by the prosecution that the cheque issued by the Jt. CCI&E mentions on the reverse of the cheque, Bank certificate of export number which must have been verified by the bank officials being part of the due procedure to be followed before presenting the cheque for clearance. There is of course report of the GEQD to the effect that the admitted round seal specimen of the Bank Ex. PW19/8 did not tally with the questioned seal on the Bank Certificate (Ex. PW 17/A-7). However, the fact that neither was the original seal sent for comparison by the GEQD nor was the same produced before the Court makes the report of GEQD less than worth inspiring complete confidence or beyond all reasonable doubt. Ld. Trial court observed that defense counsel failed to question the GEQD on the lack of original seals while comparing the questioned seal on the bank certificate of export. In the understanding of this Court, such a lapse in cross-examination cannot be the basis to overlook the fact that there was no reason at all put forth by the prosecution as to why was the original seal not sent for comparison or produced before the Court? Infact, PW 17 stated in his cross-examination that he was not even aware whether the said bank seal was still available or not. In the understanding of the Court, the original bank seal should have been Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 76 of 81 preserved and was crucial evidence which should have been produced before the Court as it would have lent strong credence to the GEQD's report but the absence of which has put a significant question mark on the comparison exercise carried out by the GEQD as GEQD himself was never given access to the original seals but only the seal impressions.
72. PW 15 who appeared as a witness from the AEPC, proved that M/s Seep Enterprises was issued Special Custom Invoice (VISA) on the basis of application for export shipment having FOB value of Rs. 2,04.800/-, invoice no. SE/12/89, and shipping bill. The Appellant did not dispute these documents which were proved by PW 15 along with other documents submitted by M/s Seep Enterprises for seeking VISA. At the cost of repetition, it needs to be observed that prosecution evidence itself leads to the conclusion that 'Seep Enterprises' and 'Seep International', both were separate and going concerns at the relevant time and engaged in export of readymade garments but the prosecution failed to prove that Appellant had any reason to forge the signatures of Anju Chauhan as ownership of 'Seep Enterprises' has not been proved by the prosecution.
73. The testimony of defense witnesses is not required to be discussed for the reason that defense witnesses deposed primarily about the signatures of appellant on the disclaimer certificates but Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 77 of 81 regarding which this Court has not concurred with the finding of the ld. Trial court.
74. Before concluding, there is another very important issue which needs a special mention. Of the 3 applications filed by 'Seep International' for claiming CCS, 2 of them were allegedly on the basis of disclaimer certificates issued by the proprietor of 'Seep Enterprises' which granted the right to claim CCS to an entity different than the one which actually exported the readymade garments. During the course of arguments on this Appeal, the matter was adjourned a number of times to enable the ld. Public Prosecutor to seek instructions from the o/o Jt. CCI&E as to under which law/rule/regulations was such an action possible. However, the ld. Public Prosecutor was unable to get any information whatsoever. The only conclusion which this Court can draw is that if there were no such rules, the whole case of the prosecution that appellant-accused claimed CCS benefit on the basis of disclaimer certificates, falls flat. The only other conclusion that this Court can draw in regard to the CCS amount received by the appellant's firm, allegedly on the basis of disclaimer certificates is that prosecution has failed to establish any correlation between these disclaimer certificates and the sanction of CCS amount to the appellant's firm.
Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 78 of 8175. To conclude, this Court does not concur with the finding of the ld. Trial court so far as conviction of the appellant u/s 420 IPC read with section 467, 468 and 471 and under section 468 read with section 471 IPC is concerned. Neither was the prosecution able to prove forgery by the appellant/convict nor use of forged documents by her. However, conviction of the appellant u/s 420 IPC alone is affirmed since it stands proved that the Appellant induced the o/o Jt. CCI&E to sanction her a higher amount of CCS benefit on the strength of an inflated invoice.
QUANTUM OF SENTENCE
76. So far as the quantum of sentence is concerned, ld. Trial court took a lenient view and sentenced the appellant to imprisonment of 3 years along with a cumulative fine of Rs. 5 lacs out of which Rs. 3 lacs was directed by the ld. Trial court to be paid to the o/o Jt. CCI&E. In the understanding of the Court the sentencing order suffered from a defect in as much as the fine imposed was cumulative for the distinct offences for which the accused-appellant has been convicted. The fine, infact, should have been imposed individually for each conviction under specific offence/s.
77. Apart from the above factor, for reasons recorded here-in after, I am inclined to revise the sentence awarded and fine imposed Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 79 of 81 by the trial court. Appellant has already faced legal proceedings for 3 decades, which fact was noted by the ld. Trial Court as well. She is nearing the status of a senior citizen. The agony of facing a criminal trial for 3 decades is in itself no less a punishment than the one eventually inflicted upon conviction and deserves greater consideration in matter of sentencing since the prime of appellant's youth was lost in facing criminal proceedings. There was no loss or destruction of public property nor any personal injury inflicted on any govt. official or to any member of the civil society. Appellant has been convicted of a financial crime. Apart from the present conviction, there has been no other allegation of criminal misdemeanor by the appellant. Additionally, gender sensitivity in sentencing is also required to be factored in while awarding a sentence especially when the accused has only been convicted of a crime having financial implications. Appellant is a single woman and if the cross- examination of PW 16 Anju Chauhan (sister of the appellant) is any indication, appellant was also looking after her aged parents while at the same time battling civil litigation with her own real sisters. The sentence awarded by the Trial court also needs a revisit for the reason that this Court has found her guilty only under section 420 IPC while acquitting her of other convictions. Finally, note must be had of the unprecedented times that we all are facing due to the pandemic. The jails have been decongested by grant of emergency paroles and temporary bails. Strict protocols are being followed in jails for those Crl. Appeal No. 10/2019 Seema Sharma Vs CBI Page 80 of 81 convicts/undertrials who yet remain there. Given the lack of adequate space and infrastructure, to manage over-crowded jails in such times when isolation and social distancing have become rigorous norms, is indeed a daunting task for the jail officials which must receive appropriate attention of the courts. In concluding analysis, this appears to be a fit case where the accused deserves a more lenient approach in conviction while balancing the requirement of an effective deterrent. As a corollary to the above discussion, this Court finds it appropriate to reduce the sentence of the appellant u/s 420 IPC to 5 months Simple Imprisonment. The fine u/s 420 IPC is also reduced to Rs. 4 lacs. No amount of fine is to be given to the o/o Jt. CCIE& E since the office works under the public exchequer which means that whatever fine is received by it, has to necessarily go back to the public treasury. However, in default of payment of fine, appellant will have to undergo SI for 1 year in addition to the sentence of 5 months' imposed u/s 420 IPC.
Announced in open Court
On 16th August 2021
AJAY Digitally signed by
AJAY GULATI
GULATI Date: 2021.08.16
14:36:35 +0530
(AJAY GULATI)
Special Judge (PC-Act) CBI-12
RADC/ New Delhi/16.08.2021
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