Gujarat High Court
A vs State on 9 January, 2012
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
Print
CR.A/805/1987 45/ 45 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 805 of 1987
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA :
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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A
U MALEK - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
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Appearance :
MR
MH BAREJIA for Appellant(s) : 1, MR EE SAIYED for
Appellant(s) : 1, MR EJAZ M QURESHI for
Appellant(s) : 1,
MR HL JANI APP for Opponent(s) : 1,
MR YN
RAVANI for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 11/05/2010
ORAL
JUDGMENT
Present Appeal is directed against the judgment and order dated 17.08.1987 delivered by the Learned Special Judge, C.B.I., Ahmedabad in Special Case No.25/1984 recording the conviction of the accused no.1 for the alleged offences under Sections 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and imposing sentence of rigorous imprisonment for two years and fine of Rs.3,000/-, in default, to undergo further rigorous imprisonment for three months. Similarly, he was also convicted for the offence under Section 120(B) of the Indian Penal Code and imposing sentence to undergo rigorous imprisonment for two years and fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for one month . Further, he was convicted for the offence under Section 468 of the Indian Penal Code and imposed sentence of rigorous imprisonment for two years and fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for one month. He also also convicted for the offence under Section 420 read with Section 120(B) of the Indian Penal Code and imposed sentence of rigorous imprisonment for two years and fine of Rs.3,000/-, in default, to undergo rigorous imprisonment for three months.
The facts of the case briefly summarized are as follows:
2.1 That, the accused no.1, who was serving as Upper Division Clerk in the Office of the Income Tax Office at Anand as public servant in connivance with accused no.2, who was working as a Clerk in the Office of the Sales Tax Practitioner, had in connivance with accused no.1, who was working as Clerk in Sales Tax Practitioner, had forged documents of income tax refund and had created forged or bogus refund of income tax in the name of fictitious persons, who were not to be granted refund. Thus, in conspiracy with accused no.1 deposited in the bank, who had open fictitious saving account and encashed money of such refund voucher. Thus both have committed alleged offences.
2.2 On the basis of the complaint given by the complainant, offence being R.C.No.4/1983 was registered against the accused including the present appellant-accused. Another case being R.C.No.6/1983 was also registered for the alleged offence.
2.3 After the investigation was made by the C.B.I., ultimately it revealed that the accused no.1, who was working as Upper Division Clerk in the Office of the Income Tax Department at Anand by misusing his position as a public servant created forged/bogus income refund vouchers of fictitious persons in conspiracy with the accused no.2 viz., Prakash Soni, Clerk in the Office of the Sales Tax Practitioner, who in turn opened fictitious bank account with the help of the wife and encashed such forged refund vouchers and thereby committed offence under Sections 420, 468 read with Section 120(B) of the Indian Penal Code and also for the offence under the provisions of Prevention of Corruption Act.
2.4 Thereafter, Learned Special Judge framed charge at Exh.20 against both accused persons and proceeded with the trial. However, before the trial commenced, at the time of recording of plea, the accused no.2 viz., Prakash Soni pleaded guilty and admitted his guilt for involvement on the offence. Hence, upon submission of purshis vide Exh.18, statement of the accused no.2 came to be recorded at Exh.22 and on the basis thereof, order, Exh.23 was passed by the Learned Special Judge, Ahmedabad recording conviction of accused no.2 for the alleged offences under Sections 120(B), 420 and 486 of the Indian Penal Code and under Sections 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act read with Section 120(B) of the Indian Penal Code, by which, the accused no.2 was convicted for the offence under Section 120(B) of the Indian Penal Code and imposed sentence to suffer rigorous imprisonment for one month and fine of Rs.100/-, in default, to suffer rigorous imprisonment for one week. He was also convicted for the offence under Section 420 of the Indian Penal Code and imposed sentence to suffer rigorous imprisonment for one month and fine of Rs.500/-, in default, to suffer rigorous imprisonment for two weeks. He was convicted for the offence under Section 468 of the Indian Penal Code and imposed sentence to suffer rigorous imprisonment for one month and fine of Rs.100/-, in default, to suffer rigorous imprisonment for one week. He was also convicted for the offence under Section 5(3) of the Prevention of Corruption Act read with Section 120(B) of the Indian Penal Code and imposed sentence to suffer rigorous imprisonment for one month and fine of Rs.100/-, in default, to suffer rigorous imprisonment for one week. Thereafter, as the accused no.1 claimed to be tried, the Learned Special Judge, C.B.I., Ahmedabad proceeded with the trial.
2.5 In order to bring home the charges leveled against the accused, the prosecution has examined witnesses and has also produced several documentary evidence, which shall be referred to in the judgment as and when required.
2.6 After the recording of evidence of prosecution witnesses was over, the Learned Special Judge, C.B.I., Ahmedabad recorded further statement of the accused no.1 under Section 313 of the Criminal Procedure Code. In his further statement, he denied the charges leveled against him.
2.6 After hearing the learned APP as well as learned advocate for the accused no.1, the Learned Special Judge, Ahmedabad convicted the appellant-accused for the alleged offence and sentenced him as stated hereinabove.
It is this judgment and order which has been assailed on the ground inter alia that the conviction of the appellant-accused no.1 would not have been recorded in view of the plea of the accused no.2.
Learned counsel, Mr.Saiyed for the appellant-accused submitted that the investigation is not fair and the Investigating Agency has not been fair to the present appellant-accused as the accused no.2 has been permitted to admit his guilt and he has been let off with a less punishment and conviction of the present appellant-accused is recorded on the basis of such plea of guilt of the accused no.2 and there is no corroborative evidence. It was submitted that the charge was defective in view of the fact that the accused no.2 pleaded guilty. Therefore, at that time, he could not have been shown as accused and as the charge is defective, the entire trial would vitiate. Further, it has been contended that the Learned Special Judge has failed to appreciate the material and evidence on record and has erroneously recorded conviction of the accused without appreciating the fact that the fictitious bank account was opened by the accused no.2 and money was deposited in those accounts by the accused no.2 and the present appellant-accused has only prepared income tax refund voucher in the course of his duty. He, therefore, submitted that at the most, it could be stated to be negligence in duty but conviction for the alleged offence could not have been recorded. Further, it was submitted that the investigation has not been fair to him and there is discrimination as other officers like R.O. Shah, who was originally arraigned as accused, has not been made accused and subsequently though there was evidence against the said accused, he has been dropped as accused while filing chargesheet and he has been examined as witness to implicate the present appellant-accused.
Learned Advocate, Mr.Saiyed submitted that the prosecution has failed to prove that the accused no.1 had forged the documents, which are referred to and relied upon by the prosecution. He emphasized that the documents, which are referred to and relied upon do not establish that it was only his signature. He, therefore, submitted that the documents contained the endorsement or the signature of the accused no.1 but also bear signature of others including R.O. Shah, who had authority to sanction such refund vouchers. He, therefore, extraneously submitted that only on the basis of the handwriting found on the documents or the refund voucher would not be sufficient to record conviction. Learned counsel, Mr.Saiyed referred to the testimony of R.O. Shah, Exh.221 and submitted that though the document bears the signature of the accused no.1 as stated by this witness, he had also signed as he had authority to pass such voucher. Learned counsel, Mr.Saiyed, therefore, submitted that the person like Mr.Shah, who had authority to pass refund voucher and who had signed and passed such voucher, is not held liable and the accused, who had prepared such vouchers in course of his duty, has been convicted. He also referred to the testimony at Exh.211 and submitted that it is evident that though the accused no.2 opened fictitious bank account in connivance with his wife, who was working in the bank and encashed the voucher, he has been given benefit on his pleading guilty. Therefore, Mr.Saiyed submitted that considering the role and the involvement, if other accused has been considered liberally, the impugned judgment and order recording conviction imposing sentence and fine is erroneous. He also referred to the discussion on this aspect in the judgment in Para No.13 and submitted that as observed, there is no direct evidence and only on the basis of plea of guilt of accused no.2 recorded and the testimony of R.O. Shah, Exh.211, the conviction is recorded. He emphasized the observation made in Para No.13 of the impugned judgment that there is no direct evidence on record to show that the accused no.1 himself has committed offence of cheating by encashing forged income tax refund voucher. He also submitted that it is also observed that there is no evidence that the accused no.1 actually had forged and prepared the income tax refund voucher. Therefore, the impugned judgment and order ultimately recording conviction of accused no.1 is erroneous. Learned counsel, Mr.Saiyed submitted that the reliance has been placed on the opinion of the handwriting expert, however, the accused no.1 had prepared the vouchers, which would bear his signature in ordinary course of his duty and, therefore, unless there is specific evidence to suggest about the preparation of the forged documents by the accused no.1, the conviction could not have been recorded. He, therefore, submitted that the questioned document and the specimen were sent to the handwriting expert after several months as same were kept with the Investigating Agency without any reason. He submitted that the possibility of tampering with those document cannot be ruled out. Therefore also, the conviction could not have been recorded. He, therefore, submitted that the accused no.1 has been discriminated and not treated fairly. Again, he submitted that there was originally three R.C. Numbers, which are also referred to in the judgment on Page No.56 and submitted that the Learned Judge has failed to appreciate this aspect that first two information reports were involving Mr.Shah along with others and, hence, the conviction for the accused no.1 alone could not have been recorded.
Mr.Saiyed referred to the sanction and submitted that there is no evidence that at the time of granting sanction, papers and investigation were with the sanctioning authority. For that purpose, he referred to sanction order, Exh.2 and submitted that it is clear that all papers were with him and, therefore, the order granting sanction itself is bad. In support of his submission, Mr.Saiyed referred to and rely upon the judgment of the Hon'ble Apex Court reported in 1979(4) SCC 599 and also reported in AIR 1996 SC 1568. Lastly, learned counsel, Mr.Saiyed submitted that entire case is based on circumstantial evidence and there is no direct evidence. The witnesses, who have been examined by the prosecution have stated that the money has been encashed by opening fictitious bank account by the accused no.2 and the accused no.1 has been falsely involved.
Learned counsel, Mr.Y.N. Ravani appearing for the C.B.I. submitted that the main contention is that there is no evidence except the opinion of the handwriting expert and the opinion of the handwriting is a weak peace of evidence.
Learned counsel, Mr.Ravani for C.B.I. referred to the testimony of P.W.No.2 viz., Vinodrai Kelvin Dayarsa at Exh.185 and submitted that he has deposed and explained that in course of duty, the accused no.1 was preparing the refund vouchers, which were placed before the higher authority for sanction. Therefore, the prosecution has clearly established that if such vouchers were prepared by the accused no.1 in ordinary course of his duty and such vouchers including forged vouchers are confirmed with the opinion of the handwriting expert, which in turn would establish beyond reasonable doubt the charges for the offence against the accused no.1. Learned counsel has also referred to the testimony of P.W.No.3 viz., Chhotusa Sadarsa Diwan at Exh.186, P.W.No.4 viz., Balmukund Ratilal Soni at Exh.187 and P.W.No.6 viz., Manubhai Ambalal Patel at Exh.189 and submitted that it would clearly establish the role of the accused no.1 in connivance with other co-accused. He submitted that the testimonies of the aforesaid witnesses suggest about not only prima-facie involvement but the role in preparing the voucher is clearly established. Learned counsel submitted that if the signatures on the original documents at Exh.131 & 132 are seen, it would suggest that these two refund vouchers are deposited in the fictitious bank account opened in the name of different persons and encashed by the accused no.2. Further the testimony of Vinodrai Kelvin Dayarsa, P.W.No.2 at Exh.185, testimony of Chhotusa Sadarsa Diwan, P.W.No.3 at Exh.186 and testimony of Balmukund Ratilal Soni, P.W.No.4 at Exh.187 would suggest that the documents at Exh.131, 132, 144, 145, 172 & 173, which are bogus and forged refund vouchers, are prepared by the accused no.1, which have also been manipulated and interpolated by the accused no.1. He referred to the testimony of P.W.NO.8, Exh.191, who is bank officer and submitted that this witness has stated that vouchers was forged and it was encashed by accused no.2. He also referred to the testimony of Indubhai, Exh.193 and submitted that the refund vouchers of Rs.17 were tampered and manipulated and it was so changed that instead of Rs.17, it was made for Rs.817. It was encashed and realized. Mr.Ravani submitted referring to the testimony of R.O. Shah, Exh.211 that he is a Income Tax Officer and he has narrated in his testimony as to what had transpired. For that purpose, he referred to some of the paragraphs and submitted that such forged documents/income tax vouchers were prepared by accused no.1, Mr.Malik and presented such refund vouchers for enacashment and it has also been realized in connivance with accused no.2. He submitted that the original voucher was prepared for different amount and, thereafter, it was interpolated in such a manner that the voucher would be for a higher amount. He further emphasized that while manipulating such vouchers, it may be noted that as stated by Mr.R.O. Shah in his testimony at Exh.211, the original voucher was not changed, but copy or folio was manipulated so as to correct figures mentioned in folio. He submitted that in the income tax office, the first or the original folio is retained but in the second copy or the folio, which would be sent to the bank, was manipulated. He, therefore, submitted that this clearly suggests about the active role of the accused no.1 and also how he manipulated and created forged documents is established. He further emphasized that the accused no.1 was required to prepare such income tax refund voucher in course of his duty, but he could not have prepared the vouchers for the persons, who were not eligible and not entitle for the refund. This manipulation with the change in the figure in the copies is established by the testimony of R.O. Shah, P.W.No.24, Exh.211 and also the testimony of handwriting expert. Learned counsel, Mr.Ravani also referred to the testimony of P.W.No.8, who is also bank officer and submitted that how the encashment was made by the accused no.2. He also referred to the testimony of Induben at Exh.196 and submitted that he has stated that he does not have any account with the Mercantile Bank and how the amount has been manipulated to read instead of Rs.17, Rs.187., which has been encashed and realized. Therefore, Mr.RAvani submitted that in such cases, there may not be direct any evidence for commission of such forgery or the offence of preparing of a forged documents. However, he submitted that it would be revealed subsequently and it has been revealed in this case that though initially, Mr.Shah was suspected as he was also officer, who had sanctioned the refund vouchers, but it has been revealed that as Sanctioning Authority or the authority, numbers of vouchers prepared by subordinate like accused no.1 would be signed and endorsed by him. Mr.Ravani submitted that therefore his role was only for sanctioning relying upon the subordinate like accused no.1, who had manipulated and created forged documents/refund vouchers. Further, Mr.Ravani submitted that as it is revealed that copy, which is kept with the income tax department would have the same figure without any manipulation but the second copy or the folio, which is sent to the bank was manipulated for higher amount after it was sanctioned by the sanctioning authority on the original. Mr.Ravani, therefore, submitted that during the investigation, as it was revealed that Mr.Shah had no role to play and he would have put his signature or the endorsement for sanctioning refund vouchers, which was prepared by the accused no.1. He cannot be said to have been involved or indulged into an offence. Mr.Ravani, therefore, submitted that subsequently his name was dropped when the chargesheet was filed, for which, no grievance can be made. He submitted that it is true that during the course of investigation, different R.C. were filed but as the investigation proceeded further, ultimately it culminated in present R.C. for the offence registered against two accused only.
Learned counsel, Mr.Ravani submitted that after the charge was framed when the plea was recorded and if one of the accused has pleaded guilty, other accused cannot have any objection as it is sought to be raised in the present case. He submitted that the accused no.2 pleaded guilty, which has been recorded at Exh.22. He submitted that the case of the prosecution is not based in any manner on such plea of guilt for accused no.2. He submitted that the case then proceeded against the present accused no.1 and on the basis of the evidence both oral as well as documentary, the conviction has been recorded.
He, therefore, submitted that the submission with regard to discrimination etc. cannot be believed and the impugned judgment and order recording conviction of accused no.1 is just and proper as he is the main preperator of fraud having prepared forged income tax refund vouchers in connivance with the other accused.
In view of the rival submissions, it is required to be considered whether the impugned judgment and order passed by the trial court recording conviction of the accused no.1 calls for any interference by this Court.
Main thrust of submission made by the learned counsel, Mr.Saiyed are the fact that the charge is defective or the accused no.2, who pleaded guilty, has been falsely acquitted and the accused no.1 is convicted without any basis or the material. First aspect with regard to false charge or the recording of the accused no.2 having pleaded guilty recorded as per Exh.22 and the order passed thereon at Exh.23 is required to be considered. Though the submission has been made by the learned counsel, Mr.Saiyed with regard to defective charge, he has not been able to point out from Code of Criminal Procedure or any other provisions as to how the charge could be said to be defective. Charge has been framed qua both accused and it is only after the charge is framed, plea of the accused is recorded as to whether he admits the guilt or not. At that stage, if one of the accused pleads guilty, the Court is bound to record his admission of guilt. In the facts of the present case also, it has been recorded vide Exh.22 and order came to be passed thereon vide Exh.23. Therefore, once the accused no.2 has pleaded guilty, case would stand on different footing. It is required to be mentioned at the same time that before the charge was framed, the accused no.2 had given purshis at Exh.18 admitting his guilty and, thereafter, he has been permitted to plead guilt as stated above vide purshis at Exh.22 and the order has been passed at Exh.23. Though while imposing sentence, very less sentence or the leniency shown may not be justified, however, there is no illegality or irregularity. Therefore, after the accused no.2 pleaded guilty and on his pleading guilty at Exh.22, the order has been passed and his case would then stand on different footing. Thereafter, the trial has proceeded against the accused no.1 in accordance with law after examining the witnesses, who have referred to the necessary documents and same have been proved as required under the Indian Evidence Act. It is on the basis of such material and evidence both oral as well as documentary brought on record, the prosecution has established the role and the involvement of the accused no.1 so as to establish the charge leveled against him. Therefore, it cannot be said that the conviction of accused no.1 has been recorded on the basis of plea of guilt recorded qua accused no.2 or only on the basis of opinion of handwriting expert without any justification or basis. A scrutiny of the evidence on record, particular, the testimonies of P.W.No.2, Vinodrai Kelvin Dayarsa (Head Clerk with the Income Tax Department) at Exh.185, P.W.No.4, Balmukund Ratilal Soni, Exh.187, P.W.No.24, Rasiklal O. Shah at Exh.211, P.W.No.1, Bishandas Devprakash Devnani at Exh.115 and P.W.No.33 viz., Madhusudanlal Kishorilal Sharma (Handwriting Expert) at Exh.229 as well as the documents prorduced at Exhs. 22, 229, 229-A, 233, 234 etc. A scrutiny of thes evidence particularly evidence of P.W.No.2 have referred to only procedure as to how such refund vouchers are prepared. He has specifically stated that the income tax refund vouchers are classified in two categories, one is with regard to refund of less than Rs.1,000/- and other is with regard to refund of more than Rs.1,000/-. He has also stated that if the refund is more than Rs.1,000/-, which is prepared along with counterfoil, the counterfoil is kept in the income tax department, first copy is given to assessee, the advice is also prepared. He has stated that the advise the refund voucher are given the same number and the advise is prepared in triplicate. The first copy is kept in the office and two other folio are sent to the bank and when the assessee presents refund voucher with the bank, the bank will compare with the advice and after verification with the advise, the amount is refunded to the assessee. Therefore, if the advise is not received by the bank, the payment for refund would not be made. He has therefore clarified that if the amount of refund is less than Rs.1,000/- then no such advise is issued and only refund voucher are prepared in triplicate. First copy is kept in the office and the second and third copies are given to the assessee, which the assessee is required to present in the Zonal Officer. Thereafter, the entry is made in the Zonal Office in general cash book and the voucher is sent to the concerned ward office. This aspect has been also explained by P.W.No.24 in his testimony at Exh.211. Referring to testimony of this witness and the documents, it is evident that the accused no.1 was required to prepare the refund vouchers in course of his duty and he had prepared such vouchers and he would place it before Mr.Shah for sanction. Mr.Shah in his testimony at Exh.221 has explained on this aspect and would pass or sanction relying upon the subordinate like accused no.1, who had prepared such vouchers. It transpires from the evidence on record that accused no.1 while preparing such refund voucher in course of his duty had also prepared such refund vouchers in fictitious name of the person or the assessee, who were not in existence or who were not entitled to get any refund. Similarly, he had prepared vouchers in respect of assessee for some nominal amount, which is placed for sanction before Mr.Shah would contain the correct figure of refund amount but subsequently, other two copies, which were to be given to assessee for encashment would be manipulated and figure would be changed to a higher amount. Such refund vouchers are handed over to Mr.Soni (accused no.2), who in turn had opened fictitious bank account with the help of his wife, who was serving with the bank and would encash the same. Some of the witnesses have stated that the accused no.2 had given proposal for opening bank account, which was signed by him and as he was known to the staff members, some fictitious bank accounts are permitted to be opened. As accused no.2 pleaded guilt, it will not be relevant to discussion his further role, however, in order to appreciate the entire conspiracy and the role at a different stage qua different accused including the accused no.1, it is briefly summarized hereinabove, which would suggest that the accused no.1 was having a major role in the conspiracy of creating forged and fabricated refund vouchers in the name of assessee, who were not in existence or who were not entitled for any refund. Secondly, the accused no.1 prepared the refund voucher for assessee, who were not entitled to such refund. However, after it is sanctioned by Mr.Shah as a sanctioning authority, two copies would be manipulated, which are then encashed in connivance with the accused no.2 as stated hereinabove. Therefore, the role attributed to the accused no.1 certainly stands on different footing and material and evidence also suggest not only his probable involvement or the probability about his involvement but also suggest about the active role attributed to the accused no.1. It is required to be mentioned that as a person in charge of preparing such vouchers was conversant with regard to the procedure including two different sets of refund voucher, one in respect of refund amount of less than Rs.1,000/- and other category for refund of amount of more than Rs.1,000/-. The vouchers for the refund amount of more than Rs.1,000/- had a different procedure of preparing advise and there was further procedure with regard to counterfoil having been tallied by the bank before the payment is made, that too, after the confirmation of the numbers etc. Therefore, accused no.1 has conveniently manipulated only vouchers with regard to category one i.e. refund amount of less than Rs.1,000/- where simple vouchers are required to be prepared in triplicate. After the first copy is approved by the sanctioning authority, two copies are then manipulated and taken away for encashment. Therefore, submission made by the learned counsel, Mr.Saiyed that in course of his duty, he was preparing refund voucher and he alone may not be blamed is misconceived in as much as it is not the case that he has simply prepared such vouchers on the basis of material with regard to names of all genuine assessee. The evidence suggest that accused no.1 while preparing refund vouchers in course of his duty has conveniently and intentionally prepared the forged and fictitious refund vouchers in respect of person assessee, who were not in existence or who were not entitled for any refund. After the first copy is sanctioned in routine course by the higher authority as number of refund vouchers are placed for sanction before the officer like Mr.Shah, such forged vouchers are then encashed with manipulation in the remaining two copies for higher amount. This manipulation in the copies with the amount, which has been emphasized by the learned counsel suggest that the interpolation has been made by him, fictitious or forged documents like refund vouchers have been prepared by Mr.Malek, accused no.1 and there is no explanation as to how he could have prepared the forged refund vouchers in respect of the person or assessee, who were not in existence or who were not entitled for the refund. Further, manipulation in the copies of the refund voucher, which are presented for encashment confirms that it was his manipulation, which would again suggest about his mens-rea. The opinion of the handwriting expert on such documents which have been referred to at length establishes that the accused no.1 had done this manipulation in the copies. Again question would be that if he was not involved or there was no such intention or mens-rea, what was the need for making manipulation or interpolation with regard to amount of the refund voucher. When he has been preparing such voucher, he would have easily known with some record that the amount of refund for a particular assessee or person is small and could not have varied or changed in copies subsequently. There is no explanation on this aspect by the accused no.1. Some of the persons like P.W.No.4 has stated that they have not received any refund vouchers. Similarly, the P.W.Nos.6 and 7 have also stated in the same manner. Testimony of P.W.No.24, Mr.R.O. Shah at Exh.211 has been corroborated with the testimony of handwriting expert, Mr.Sharma at Exh.229. The opinion handwriting expert, which was produced at Exh.226 has referred in detail the questioned documents with exhibit numbers and how he has analyzed and compared the specimen writing and signature with questioned documents. It is clearly stated that the specimen handwriting and subsequent signature as well as admitted signature of one Mr.Malek, accused no.1 have been supplied to him, which he has referred to in detail and has clearly stated that the question documents were written by the person, who has written prepared those documents, which are referred to. He has stated in his testimony with regard to similarity in the handwriting as to how it has been examined with all vouchers and based on such comparison, after detailed analysis and comparison, he has given opinion at Exh.228. He has denied suggestion that specifically request was made by I.O. to give opinion whether questioned documents are written and signed by A.U. Malek. He has denied the suggestion that such science is not a perfect science. He has given his opinion, which confirms about the handwriting on the questioned documents, which have been manipulated by the accused no.1.
It is in this circumstances, the submission made by the learned counsel, Mr.Saiyed that the conviction has been erroneously recorded based only on the plea of guilt of accused no.2 and opinion of the handwriting expert is thoroughly misconceived. As discussed above, there is sufficient material and evidence on record in the form of testimony of witnesses and documentary evidence itself, which confirms about the writing on such questioned documents, which have been manipulated or forged by accused no.1. The submission made by the learned counsel, Mr.Saiyed that there is no evidence that the accused no.1 had forged the documents or he created forged income tax refund voucher and when he prepared such refund vouchers in course of the duty, he alone cannot be blamed. As discussed above, in the course of his duty, he was required to prepare the refund voucher of assessee and on the contrary, it could be very well suggest about his ill-design or mens-rea that while discharging his duty of preparing of genuine refund voucher, he prepared forged refund voucher and after it was sanctioned by the higher officer, Shri Shah, copies were manipulated for higher amount, which were then encashed in connivance with the accused no.2. As discussed above, as a conversant person, his attitude is further required to be noted that all the manipulations in the voucher are only with regard to such vouchers, which were for refund of less than Rs.1,000/- as it would facilitate his design. Had it been the voucher for more than Rs.1,000/-, the procedure was different, the advise is required to be prepared, more copies were sent to the bank, which will be compared by the bank. Therefore, conveniently this manipulation is made only with regard to the vouchers for refund of less than Rs.1,000/-. The submission made by the learned counsel, Mr.Saiyed that the questioned documents and the specimen were sent to the handwriting expert after several months after it was kept with the investigating agency and, therefore, it is bad. However, assuming that there was some delay, which would not make any change as the handwriting could not be manipulated or changed and admittedly, handwriting and specimen of accused no.1 has been compared with the questioned documents, which have been seized or collected during investigation. Therefore, this time gap would not have any bearing on the opinion on the confirmation with regard to handwriting.
Another facet of argument that there were three complaints or RC, which were filed and though Mr.Shah was arraigned as accused initially, has not been made accused subsequently at the time of filing of the chargesheet only accused no.1 has been targeted is misconceived. This aspect has been clarified by the learned counsel, Mr.Ravani referring to the testimony of witnesses, particularly, Mr.Shah, Exh.211 corroborated by testimony of other witnesses. It transpires from the evidence, initially as Mr.Shah was sanctioning authority, who had sanctioned such vouchers, he was suspected but during the course of investigation, it has been revealed that he would merely sanction such vouchers, which were prepared and placed by the subordinate like accused no.1 before him. Therefore, there is no evidence or even suggestion that in any manner he had any role in preparation of the forged documents/forged refund voucher or subsequently he had any interest or any evidence to suggest that he was in the conspiracy. Therefore, this submission is also misconceived. If there is no evidence after the investigation has been made and the investigating agency finds on the basis of the material that particular person is not involved, he may not be then figured in the chargesheet.
Another aspect, which has been much emphasized that only on the basis of the handwriting expert on some of the documents, which were not signed by the accused no.1 only and he has been falsely implicated is difficult to accept. Admittedly, the accused no.1 prepared the refund voucher in course of his duty. The entire preparation of the refund voucher including forged and fabricated refunds vouchers, have been attributed him coupled with the fact that two copies, which were subsequently manipulated for higher amount bear writing of accused no.1, which is confirmed by the handwriting expert, who has given opinion confirming that the writings on the questioned document have matched with the subsequent admitted handwriting of accused no.1. Therefore, what has been referred as document to the handwriting expert may contain other signature like in the present case, if Mr.Shah, who had sanctioned such vouchers and would have initialed for sanctioning such refund vouchers. What has been compared is the writing of the accused no.1 considering his role and accusation against him, which is required to be considered in background of the totality and the facts and circumstances. It is well accepted that there may not be any direct evidence for the conspiracy as such conspiracy is hatched in privacy. The inference has to be made based on the circumstances and the evidence which point to the guilt of the accused. The prosecution has on the basis of the evidence both oral as well as documentary coupled with the opinion of the handwriting expert has established the involvement of the accused no.1, which rules out any possibility of his innocence.
A useful reference can also be made to the observation made in a judgment reported in AIR 1993 SC 1637, wherein the Hon'ble Apex Court has elaborately discussed on the aspect of conspiracy. It has also been observed and laid down that it is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. The offence of criminal conspiracy has its foundation in any agreement to commit offence.
The Hon'ble Apex Court in a judgment reported in 2004 SC 3030 has discussed on this aspect of conspiracy. Referring to Halsbury's Laws of England and referring to this aspect, it is further observed and quoted earlier judgment that It was held that the expression "in reference to their common intention" in Section 10 is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English law; with the result, anything said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Anything said, done or written is a relevant fact only. Further, necessary ingredients for the offences have been analyzed in this judgment. It is further observed that To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. The provisions, in such a situation, do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trapping of the provisions contained in section 120B.
Moreover, observations have also been made referring to Section 10 of the Indian Evidence Act as stated above. Therefore, moot question, which is required to be considered is whether material and evidence on record as discussed hereinabove in light of this observation and the guidelines would lead to a conclusion about the conspiracy. The facts in the present case, as revealed from the testimonies of the witnesses and the material and evidence on record clearly suggest about the conspiracy hatched by both accused and with respective role that the accused no.1 while preparing refund voucher in ordinary course of duty would also prepare the forged refund voucher in fictitious name or in name of the persons, who are not eligible for such refund and such vouchers are to be placed along with other for approval before the higher authority like Mr.Shah. Thereafter, once it is approved as discussed above, such forged refund vouchers are taken out and again the amount is manipulated, which is then handed over to the accused no.2 for encashment by opening fictitious bank account. Thus entire modus operandi has been established by testimonies of witnesses, more particularly, testimony of P.W.No.24, Mr.R.O. Shah, Exh.211. Testimony of other witnesses like P.W.No.4, Exh.187 and P.W.No.6, Exh.189 suggesting about the role of the accused no.1 in connivance with other accused. Further the signature on such documents, which have been seized during investigation and when such specimen signature and the admitted signature of the accused no.1 are compared with the questioned documents bearing signature of accused no.1, the signatures are confirmed by the handwriting expert, who has been examined as P.W.No.33 viz., Madhusudanlal Kishorilal Sharma at Exh.229. Therefore, testimony of the handwriting expert and his report corroborate on this aspect coupled with the fact that the testimony of other witness like P.W.No.8, who is Bank Officer suggest that how the encashment was made by the accused.
It is required to be appreciated that the provisions of Section 10 of the Indian Evidence Act could be applied not for the purpose of role attributed to a particular accused but also for a conspiracy i.e. to come to a conclusion about the existence of conspiracy. It is also required to be appreciated that the accused no.1 was required to prepare the refund vouchers in ordinary course of his duty and the forged vouchers in respect of fictitious persons, which is stated to have been prepared with his handwriting with some interpolation that would be a relevant fact, which the accused no.1 alone can explain and when he has failed to explain on this aspect, the provisions of Section 106 of the Indian Evidence Act would also be attracted. Therefore, the observation made by the Hon'ble Apex Court in a judgment reported in 1993 SC 1637 is required to be considered as it has been observed that every conspirator need not know all the details of the conspiracy nor it is necessary that he may be participant at every stage. Again this aspect has been discussed in a subsequent judgment reported in AIR 2004 SC 3030 and the Hon'ble Apex Court in this very judgment referred to and quoted Halsbury's Laws of England 4th addition, Volume-XI 4458 referring to the law as to conspiracy. Therefore, the facts, which have been established or proved would be a relevant facts for the purpose of offence under Section 120(B) of the Indian Penal Code. The provisions of Section 10 of the Indian Evidence Act is very wide and it has been designed to use purposefully to give it wider scope.
It is required to be mentioned that Sections 9 and 10 of the Indian Evidence Act would also have to be considered. Though in the impugned judgment, the Learned Judge has not very specifically focused referring to this aspect, he has nevertheless discussed about the relevancy of the fact. Section 9 refers to the facts necessary to explain or introduce relevant facts. Such documents or the conduct would be relevant. Therefore, submission that the conviction is based only on the plea of guilt of accused no.2 is misconeived as the charge against the accused no.1 with regard to conspiracy and the role has been established from the material and evidence on record independently. Therefore, the later part of the encashment is attributed to the accused no.2 and irrespective of his plea of guilt, the material and evidence establishes that the encashment of forged documents were made. Therefore, it would suggest that the forged documents like income tax refund voucher are made, which in turn have been proved to be forged. It further establishes about involvement of the accused no.1 as he was admittedly preparing such vouchers. Therefore, when he is the person, who has prepared such voucher, the possibility of preparing such voucher by any other persons is ruled out. This is further confirmation in the form of opinion of the handwriting expert, which confirms about the writing of the accused no.1 on the questioned document with interpolation. Therefore, the submission made by the learned counsel, Mr.Saiyed is misconceived.
Another submission made by the learned counsel, Mr.Saiyed about the sanction that there was no evidence or material of the investigation placed at the time of grant of sanction is misconceived. As can be seen from the sanction letter at Exh.2 itself clearly suggest about the application of mind. In any way of the matter, it is well accepted that words or the manner in which the sanction is recorded is not material. What is required to be seen is that whether while granting sanction, the sanctioning authority has considered prima-facie involvement of the accused based on material before him. In the facts of the present case, it transpires from the sanction at Exh.2 itself that he had considered material and, thereafter, he has granted sanction. The Hon'ble Apex Court in various decision clearly suggest that if the sanction letter itself is so explanatory then it cannot be said to be suffering from any defect.
In the result, the present appeal hereby stands rejected. Impugned judgment and order dated 17.08.1987 delivered by the Learned Special Judge, C.B.I., Ahmedabad in Special Case No.25/1984 is hereby confirmed. The appellant-accused is on bail and, hence, his bail bond stands canceled.
(RAJESH H.SHUKLA, J.) /patil FURTHER ORDER After the Judgment and Order was pronounced, learned advocate, Mr.E.E. Saiyed has requested for granting of time for surrendering, which is granted upto 8 (eight) weeks.
(RAJESH H.SHUKLA, J.) /patil Top