Karnataka High Court
Jitender Prasad Kaushik vs State By Cbi/Acu.Iii on 3 January, 2017
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
®
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 03RD DAY OF JANUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.985 OF 2009
CONNECTED WITH
CRIMINAL APPEAL No.986 OF 2009
CRIMINAL APPEAL No.988 OF 2009
IN CRL.A.No.985/2009
BETWEEN:
Jitender Prasad Kaushik,
Son of Jagadish Prakash Kaushik,
Aged about 73 years,
Residing at A14/3,
SFS Flats,
Saket,
New Delhi - 110 017.
...APPELLANT
(By Shri Kiran S. Javali, Advocate)
2
AND:
State by CBI/ACU.III,
New Delhi.
Through CBI,
Bellary Road,
Bangalore.
...RESPONDENT
(By Shri P. Prasanna Kumar, Advocate)
*****
This Criminal Appeal filed under Section 374(2) of the
code of Criminal Procedure, 1973, by the Advocate for the
appellant praying to set aside the judgment and order of
conviction and sentence passed by the XXI Additional City
Civil and Sessions Judge and Special Judge for CBI Cases,
Bangalore in Spl.C.C.No.103/1997 dated 15.12.2009 -
convicting the appellant/accused No.1 for the offence
punishable under Sections 120(B), 409, 201, 467, 471, 477(A)
of IPC and Section 13(2) read with 13(1)(c) and (d) of
Prevention of Corruption Act, 1988 (corresponding to Section
5(3) of Prevention of Corruption Act, 1947) and etc;
IN CRL.A.No.986/2009
BETWEEN:
Raphael Joseph Manohar,
Aged about 64 years,
Son of Raphael Joseph,
Residing at No.2/A,
Land Mark Apartments,
Vyasanagar,
Kadri Hills,
3
Mangalore.
...APPELLANT
(By Shri Sandeep Patil, Advocate)
AND:
State by Central Bureau of
Investigation/ACU.III,
New Delhi.
Through Central Bureau of Investigation,
Bellary Road,
Bangalore.
...RESPONDENT
(By Shri P. Prasanna Kumar, Advocate)
*****
This Criminal Appeal filed under Section 374(2) of the
code of Criminal Procedure, 1973, by the Advocate for the
appellant praying to set aside the judgment and order of
conviction and sentence passed by the XXI Additional City
Civil and Sessions Judge and Special Judge for CBI Cases,
Bangalore in Spl.C.C.No.103/1997 dated 15.12.2009 -
convicting the appellant/accused No.2 for the offence
punishable under Sections 120(B), 409, 201, 467, 471, 477(A)
of IPC and Section 13(2) read with 13(1)(c) and (d) of
Prevention of Corruption Act, 1988 (corresponding to Section
5(3) of Prevention of Corruption Act, 1947) and etc;
IN CRL.A.No.988/2009
BETWEEN:
Gunda Bhat Joshi,
4
Son of Late Bhaskarbhai Joshi,
Residing at No.5,
Padakripuram,
Kencharalakoppa Village,
Soundatti,
Belgaum District,
Karnataka.
...APPELLANT
(By Shri Kiran S. Javali, Advocate)
AND:
State by CBI/ACU.III,
New Delhi.
Through CBI,
Bellary Road,
Bangalore.
...RESPONDENT
(By Shri P. Prasanna Kumar, Advocate)
*****
This Criminal Appeal filed under Section 374(2) of the
code of Criminal Procedure, 1973, by the Advocate for the
appellant praying to set aside the judgment and order of
conviction and sentence passed by the XXI Additional City
Civil and Sessions Judge and Special Judge for CBI Cases,
Bangalore in Spl.C.C.No.103/1997 dated 15.12.2009 -
convicting the appellant/accused No.3 for the offence
punishable under Sections 120(B), 409, 201, 467, 471, 477(A)
of IPC and Section 13(2) read with 13(1)(c) and (d) of
Prevention of Corruption Act, 1988 (corresponding to Section
5(3) of Prevention of Corruption Act, 1947) and etc;
5
These appeals having been heard and reserved on
29.11.2016 and coming on for pronouncement of orders this
day, the Court delivered the following:-
JUDGEMENT
These appeals are heard and decided together.
2. The accused are in appeal challenging their conviction. It was alleged that during the period 1988-89, the following officers of the Customs Department, namely, (Accused no.1) J.P. Kaushik, Collector of Customs , Bangalore, (Accused no.2) R.J. Manohar, Additional Collector of Customs, Mangalore and (Accused no.3) G.B. Joshi, Inspector of Customs , Kundapur, had entered into a conspiracy, along with certain private persons, namely, J.M.Z. Pookoya and others to misappropriate certain reward money which was payable to informers. And that in furtherance of the said criminal conspiracy, they had ensured that the reward money of Rs.1 Crore was entrusted to them by the Department for 6 disbursement to the informers. It was alleged that they had dishonestly and fraudulently misappropriated the same by falsifying and forging the official records.
3. The background to the case is said to be as follows. The Ministry of Defence, Government of India, is said to have provided for incentives to informers - furnishing secret information to the Customs officials in respect of the activity of smuggling of contraband, along the shores of the country. A primary feature of this arrangement was that the identity of the informer would not be known except to a single officer of the Department, through whom such secret information would be conveyed. And that the name of the informer would not be revealed in the official records. This was to protect the informer from retaliation by persons who would be affected and also to ensure that his utility as an informer was not put to an end by exposing his identity.
7
In the instant case, it is stated that Accused no.3 had cultivated an informer and the secret information provided by him, is said to have been conveyed to Accused no.2 and this is said to have led to a successful trap and seizure of a large quantity of gold biscuits with foreign markings, which was said to have been brought on to the shore at Gangully beach, in a dinghy in the early hours of 7.4.1988, worth about Rs.10.39 crore . The Customs officials who had waited in hiding at the beach from 11 PM on 6.4.1988, are said to have surrounded the persons who had brought in the gold and others who had come to receive them and made arrests. It was said to be one of the most valued catches of smuggled goods in the history of the Customs Department.
Subsequently, in order to reward the informer, Accused no.2 is said to have recommended to Accused no.1, to release an advance reward of Rs.55 lakh to the informer. This recommendation was said to have been placed before an Advance Reward Committee, as on 19.7.1988. The said 8 Committee was said to be composed of members including - S. Mukhopadhyay, (PW-10), Sukumar Shankar ( PW-11) apart from Accused nos.1 and 2 , themselves. The proposal is said to have been approved at the meeting dated 19.7.1988. The minutes of the meeting referred to 'informers', at some places, indicating that there was more than one informer. The work sheet prepared by Accused no.2 and enclosed with the advance reward proposal, it is said, did not reveal more than one informer.
After processing the bill, Rs.44 lakh was said to have been drawn in cash by the CAO and a demand draft is said to have been obtained for Rs.11 lakh, on the instructions of Accused no.1 and was said to have been handed over to Accused no.2 and 3, on 29.7.1988. The said amount was said to have been entrusted to them for disbursement to the informer as per the office order.
It was alleged that a sum of Rs.55 lakh was misappropriated on the pretext of disbursement to a fictitious 9 person shown as Informer no.1, on 29.7.1988 at Bangalore , by Accused no.1, who is said to have obtained the left thumb impression of the alleged informer no.1, on the back of an information slip and on a proforma, namely, Annexure-B thereto. In this regard, it was further alleged that this dubious and fictitious disbursement was sought to be fortified by Accused no.2 & 3 joining as witnesses in having acknowledged the disbursement to the imaginary Informer no.1. This mischief is said to have been exposed when on 1.8.1988, a Demand draft for Rs.11 lakh was said to have been encashed at the SBI, Mangalore by one Selvarajan, Executive Officer, Customs and the amount is said to have been handed over to Accused no.2, which in turn, was disbursed by Accused no.1 to the Informer no.2 , G.N.Z.Pookoya, whose left thumb impression was said to have been obtained on the back of the information slip and on Annexure - B thereto. The left thumb impression of Pookoya was said to have been identified by Accused no.2 & 3. However, Accused no.1 who had made two disbursements as 10 noticed above, had issued a single certificate, certifying the payment of Rs.55 lakh to a single informer as on 1.8.1988, whereas the reward amount was said to have been split between two informers in a sum of Rs.45 lakh and Rs.11 lakh, respectively, as stated above.
It is further alleged that on 4.1.1989, Accused no.2 had written to Accused no.1 as to the payment of the final reward amount to the informer. This was said to have been brought before the Final Reward Committee, of which Accused no.1 was himself a member. The recommendation was said to have been accepted and the balance amount of Rs.45 lakh was approved to be disbursed at the meeting of the Committee dated 1.2.1989. The file pertaining to the same was said to have been entrusted to Accused no.1 to be carried from New Delhi, the seat of the said Committee, to Bangalore . It is the case of the prosecution that Accused no.1 had deliberately destroyed the minutes of the meeting dated 1.2.1989 and is said to have made a note in his own hand writing that the Reward Committee had 11 approved the disbursement of the Reward amount to the informer. It was the case of the prosecution that Accused no.1 had suppressed from the Reward Committee that the Advance Reward amount had been disbursed to two informers. And that the Final Reward Committee had sanctioned the disbursal of the balance amount to only one informer. This was endorsed by the Committee members in their evidence at the trial.
Pursuant to the approval of disbursement as aforesaid, a bill was said to have been prepared and a cheque for Rs.45 lakh was prepared and a Demand Draft for the said amount was said to have been purchased from the SBI, on 15.11.1989. After encashing the said DD, the amount was said to have been entrusted to Accused no.2 who had acknowledged receipt of the same on 17.11.1989. It was alleged that Accused no. 1 to 3 had all met at Udupi and split the said Rs.45 lakh into Rs.36 lakh and Rs.9 lakh. The sum of Rs.36 lakh was said to have been misappropriated and shared by the three of them, while it was made to seem that a fictitious Informer no.1 had received the 12 same on the basis of a left thumb impression appearing on the back of the information slip and a proforma Annexure-B thereto. The said thumb impressions were conveniently shown as having been witnessed by Accused no.2 & 3. Rs. 9 lakh was said to have been disbursed to Informer no.2, Pookoya, by Accused no.2. Thereafter, he is said to have issued a false disbursement certificate in the form of Annexure -A and mentioned therein as follows - "For having made payment of Rs.45 lakh on 18.11.1989 to the right informer'" and from whom a receipt is said to have been obtained by him, significantly without quantifying the amounts disbursed to each such informer.
Hence, it was the case of the prosecution that a sum of Rs.80 lakh in all, which was said to have been disbursed to a fictitious informer no.1 was actually misappropriated by Accused nos. 1 to 3 on the basis of forged payment vouchers and gross suppression of facts at various points of time as stated above.
13
It was the case of the prosecution that the opinion of the finger print expert unravelled the fact that the left thumb impression of the ghost informer no.1 obtained on the cash receipts (Pro forma - Annexure B) and the back of the information slip, for Rs.44 lakh and Rs.36 lakh did not tally and that the said impressions differed from the left thumb impression appearing on the information slip dated 4.4.1988. But in respect of informer no.2, the left thumb impression obtained on the cash receipt of Rs.11 lakh and Rs. 9 lakh is said to have tallied with the left thumb impression obtained on the source information slip dated 4.4.1988.
It was also alleged by the prosecution that a diary maintained and known as XT-1 dairy of the officers posted at Kundapur, indicated that Accused no. 3 was not present at his residence in Kundapur on 4.4.1988. However, he had claimed that he had received information from Informer no.1 & 2 at his residence on the said day. He is alleged to have hence made interpolations in the despatch register to create an impression 14 that the source information dated 4.4.1988 recorded by him was despatched to Accused no.2 on 5.4.1988, although it was not despatched on that day. It is hence alleged that the said accused manipulated the information slip as well as payment vouchers, despatch registers and destroyed the original DRI- 1 and minutes of the Final Reward Committee meeting dated 1-2- 1989 and thus abused his official position for undue pecuniary advantage along with Accused no.1 & 2 and thus had committed offences punishable under Sections 120B, 409, 201, 467,471 and 477A of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC' for brevity) and Section 13(2) read with Section 13(1)(e) and (d) of the Prevention of Corruption Act, 1988 (Hereinafter referred to as the 'PC Act', for brevity).
On the basis of the above broad allegations the court below had framed charges against the accused, to which they had pleaded not guilty and claimed to be tried. The prosecution is then said to have examined 48 witnesses and marked several documents. The accused are said to have produced six 15 documents in their defence. After recording the statements of the accused under Section 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'CrPC', for brevity), the court below is said to have framed the following points for consideration.
"1) Does prosecution prove the validity of sanction for prosecution of A2?
2) Does prosecution prove the criminal conspiracy hatched by Accused No.1 to 3 to defraud the Department of Customs as alleged so as to constitute offence under Section 120-B IPC?
3) Does prosecution prove that accused No.1 to 3 having dominion over the property in their capacity as public servants committed criminal breach of trust in respect of such property within the contemplation of Section 409 IPC?
4) Does prosecution further prove that Accused No.1 to 3 in furtherance of the criminal conspiracy after committing offence of criminal breach of trust caused the evidence of the offence 16 to disappear as to constitute offence under Section 201 IPC?
5) Does prosecution prove forgery of the documents purporting to be receipts acknowledging the payment of money within the contemplation of Section 467 of IPC?
6) Does prosecution further prove that the accused fraudulently used as genuine forged documents in pursuance of the criminal conspiracy to cause wrongful loss to the Department and corresponding wrongful gain for themselves so as to constitute offence under Section 471 of IPC?
7) Does prosecution prove that accused No.1 to 3 being officers of Customs Department with intent to defraud the Department falsified the accounts by tampering with the documents within the contemplation of Section 477A of IPC?
8. Does prosecution prove that Accused No.1 to 3 dishonestly misappropriated for their own use the funds entrusted to them or under their control as public servants by abusing their official 17 position as public servants for obtaining pecuniary advantage so as to constitute offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988?"
The court below has answered all the points in the affirmative and convicted the accused. It is that which is under challenge, in separate appeals, by each of the accused.
4. The learned counsel Shri Kiran Javali, appearing for the appellants in Crl.A.985/ 2009 (Accused no. 1) and in Crl.A. 988 / 2009, would contend that the judgment of the court below is liable to be set aside for the following reasons.
It is pointed out that the designated court has overlooked a glaring circumstance. The First Information Report dated 12.2.1995, has specifically cited C.W.50, as accused no.4. But he had neither been sent up for trial nor examined in the course of the proceedings. The trial court has not chosen to seek any explanation nor has the same been reconciled with reference to 18 any justification in abandoning the proceedings against the said accused no. 4.
It is sought to be highlighted that in the entire evidence tendered by PW-1 to PW-48, there is no indication that Accused no.1 was involved in any manner with the other accused, prior to 7-4-1988. It is pointed out that as regards the gathering of information by the efforts of Accused no.3, prior to the seizure of the contraband, and as evidenced by Exhibits P- 67, P-74, P-129 and P-130 - the same has been shared with Accused no.2, periodically. It is not however, shown through the evidence of any witness that Accused no.1 was privy to any such information, nor was being kept informed of the same, prior to 7.4.1988. In other words, the alleged common intention or any conspiracy, prior to the said date is not forthcoming. Hence, the very basis of the case against Accused no. 1 is lacking.
It is further pointed out that the information gathered, on the basis of which the seizure of the contraband had taken place 19
- was exclusively in the knowledge of Accused no.3. There is nothing on record to indicate that there was any other person of the department involved, except Accused no.2 who was of course kept informed by Accused no.3, as his immediate superior. It is also on record that the information gathered was reduced as an information slip , to which the informers are said to have subscribed their left thumb impressions. ( Exhibit P-21) It is emphasized that two sets of thumb impressions found therein, indicating that there were two informers, (One of whom was CW-50) has not been dislodged in evidence.
It is next pointed out that in terms of the Customs Preventive Manual (Exhibit P-63), the information received from any informer requires to be reduced into the form of DRI- 1 and is to be forwarded in original to the office of the Directorate of Revenue Intelligence, New Delhi, by the Assistant Collector, concerned and a copy is to be forwarded to the Collector of Customs, in whose jurisdiction the seizure takes place, as well as the Zonal Officer. In the instant case, 20 this requirement is said to have been met as confirmed by PW- 11, 12 & 13. It is also established that the DRI-1 was forwarded to DRI, New Delhi, from the office of Accused no.2 at Mangalore on 7.4.1988, as evidenced by Exhibit P-77(a). Copies having been despatched in accordance with the Manual, to the concerned is also evidenced by the said exhibit. It is not the case of the prosecution that Exhibit P-77(a) has been tampered with. Further PW- 23, PW-13 and PW-15 have in their deposition affirmed that there has been due compliance. And hence it is firmly established that the procedure has been strictly complied with.
It is contended that as regards the original of the DRI -1 that was forwarded to the Headquarters of the DRI, New Delhi, stood established by Exhibit P-77(a). PW- 48 has stated in his deposition (paragraph-16) that he had not chosen to record the statement of any person at the office of the Director General, DRI, New Delhi or the Office of the DRI Bangalore of the receipt of the said document from Bangalore. It is also pointed 21 out that the effort of the appellant to trace the original by recourse to Section 91 CrPC, has only resulted in the respondent replying vide memo dated 7.11.2003, that the document is no longer available and had been destroyed. In the result, it is contended, the prosecution having miserably failed to recover the original DRI-1, despatched to New Delhi, the same has not been disproved and the Court below ought to have drawn an adverse inference against the prosecution and in favour of Accused no.1. In that, it is pointed out, the primary allegation is of the destruction of true copy of the DRI-1 and falsification of the copies of the same as at Exhibits P-40, D-1, D-2(d), P-47(e-1) and P51(h-1). The burden of proving that the same are not true copies of DRI-1 was on the prosecution. This burden of proof has not been discharged. It is hence inexplicable that the court below has accepted the theory of the prosecution without any proof thereof.
On the other hand, it is contended, that the deposition of PW-23 has confirmed the despatch of the original DRI-1. 22 PW-13 has confirmed the receipt of the same from the appellant and also has confirmed having handed over the same to PW-15, as evidenced at Exhibit P-40(d).
It is pointed out that PW-13 has confirmed that Exhibit P-40 and D-1 are one and the same. This is accepted by the investigating officer, PW-48 (paragraph-18 of his deposition). PW-13 has further indicated that it was pursuant to P-40 that the proposal for Advance Reward and Final Reward had been based. (PW-13, Para -8) . It is hence contended that it stood established that Exhibit P-40 was the only DRI-1.
Conversely, it is contended there is no evidence to indicate that the destruction of the original DRI-1 had taken place prior to 7.4.1988, and that the DRI-1 despatched under Exhibit P-77 (a) was not Exhibit P-40.
It is next contended that the Advance Reward Committee constituted consisted of PW-10, PW-11 and Accused nos.1 & 2. The meeting held by the Committee to approve release of the Reward amount is not in dispute. However, the deposition of 23 PW-10 and PW-11 is sought to be relied upon to establish that DRI-1 at Exhibit P-40 was not shown to them. Significantly, Exhibits P-40, D-1, D-2(d), P-51(h-1) and P-47(e-1) are photocopies of the same document. These have been recovered by the respondent from various sources during investigation or are produced by the DRI, Bangalore. It is not the case of the prosecution that the same are either tampered with or that they have been replaced or inserted . There is not even an allegation in this regard. This circumstance would render the evidence of PW-10 and PW-11 as being unreliable.
It is further contended that in so far as the Minutes of the Advance Reward Committee meeting (Exhibit P-41), in which PW-10, PW-11 and Accused nos. 1 & 2 were members, had been drawn up and typewritten on a manual type writer, by PW-15, it is pointed out that the language of the document clearly refers to the "informers" involved, in the plural. The same has been duly signed by PW-10 & PW-11. But in the evidence, it is their stand that there are interpolations made in 24 the document to make it seem thus. There is no evidence tendered, however, to establish this fact. On the contrary, PW- 48 has categorically confirmed the absence of any tampering of Exhibit P-41. (Ref.paragraph 21 of deposition). It is also pointed out that though there was no charge framed as regards the alleged tampering of the above document, it is only in the course of evidence of PW-10 and PW-11 that such a version is sought to be projected, which is not consistent with the latter portions of their very deposition. And further the said witnesses had not stated so in their Statements recorded under Section 161 of the Code of Criminal Procedure, 1973.
It is pointed out that there is no evidence forthcoming of any of the reward amount having been channelled to the first appellant. In spite of the documents, bank accounts, lockers etc., of the said appellant having been subjected to seizure and the same not having disclosed any unaccounted or disproportionate assets, the charge of misappropriation of the reward amount by the said appellant was not established. 25
It is contended by the counsel for Accused no.2, the appellant in Crl.A.986/2009, that firstly, the trial court had failed to appreciate a glaring circumstance that the FIR, a primary document, had specifically cited Pookayya, CW-50, as accused no.4. But he was neither sent up for trial nor examined as a witness in the course of the proceedings. The trial court having glossed over this aspect, is inexplicable. The said person was one of the informers and his participation at the trial as a witness was imperative, as the doubt sought to be raised as regards the existence or otherwise of a second informer - could then have been set at rest - thereby enabling the court to firmly hold that the guilt of the accused stood proved or that the prosecution had failed to establish its case. The appellant having been found guilty notwithstanding the serious lacuna in the prosecution case, has resulted in a gross miscarriage of justice.
It is contended that the role of this appellant, Accused no.2, was only as a disbursing officer, who had paid the reward 26 amount and hence his involvement was only with effect from a date subsequent to the date of seizure, namely, 7.4.1988 and that he had paid the amount to the informers identified by Accused no.3. That the prosecution had not produced any evidence to indicate that the said appellant had any part to play or was shown to be involved in the matter of recruiting the informers or in recommending the disbursal of the reward amount, prior to 7.4.1988. This, it is contended, would completely defeat the case of the prosecution of any alleged conspiracy.
It is contended that as the material on record in relation to recording of information from the sources and the contents of the information slip (Exhibit - P-21) disclosing two sets of thumb impressions and the same having come into existence prior to April 7, 1988 - there was no basis to find the appellant, accused no. 2 guilty of any wrong doing.
It is pointed out that the trial court had overlooked the circumstance that the all crucial document, DRI -1, which was 27 required to be forwarded to three different organizations and the fact of its receipt at New Delhi and Bangalore not having been verified as accepted by PW-48, and the same having been confirmed by PW-11, 12 and 13, did not justify the finding of guilt against the appellant. On the other hand, the despatch of the original copy of DRI-1 to New Delhi and Bangalore had been established by the document at Exhibit P-77 (a) , which is not a disputed document. Therefore, it is contended that the theory of falsification or destruction of the original DRI-1 is not established but on the other hand would stand defeated.
It is contended that no material was brought on record to demonstrate that Exhibit P- 40 was a false document or that the original of DRI-1 was destroyed or falsified. Further, all pre- seizure collection of information was shown to be exclusively by Accused no.3 and there is no material produced to demonstrate that Accused no.2 had acted in active collusion in creating a false scenario leading to the seizure. In the absence of which the theory of conspiracy would not stand established. 28
The learned counsel for the said appellant while urging the several other grounds which are common to all the appeals, would also point out that there was no evidence brought on record to indicate that the present appellant had received any part of the reward amount, surreptitiously or otherwise, as his entire assets, accounts and personal records were subjected to scrutiny in multiple proceedings initiated by the statutory authorities such as the Enforcement Directorate, the Income Tax Department and of course, the CBI.
It is hence contended that the appeal be allowed and the conviction and sentence be set aside.
5. Shri Kiran Javali, also appearing for the appellant in Crl.A.988/2009, Accused no.3, would, apart from reiterating the very grounds urged in support of the case of Accused no.1, would emphasize that the allegation as there being only one informer, was clearly disproved, in that, the information slip Exhibit P-21 clearly established the existence of two sets of 29 thumb impressions, which were admittedly recorded prior to the seizure of the contraband. Further, DRI-1 (Exhibit P.40) mentioned 'informers' and there were separate receipts at Exhibits P-23, P-24, P-25, P-26 - which were executed by the two informers with their respective thumb impressions, one of whom was CW- 50, to acknowledge receipt of the advance and final reward, which would establish the existence of two informers.
Further, it is contended, the trial court had failed to appreciate the circumstance that the prosecution had attempted to establish PW-25 was an informer and ought to have received the reward amount. This stand was contradictory to the contention of the CBI, in the writ petition that was filed by PW- 25 , in the writ jurisdiction of this court, seeking to lay claim to the reward amount.
That there was no incriminating material produced to indicate that the appellant, Accused no. 3 had received any part of the reward amount, though a detailed audit and inventory 30 was taken of his assets, accounts and securities, by several authorities in multiple proceedings, as a fall out of this very case.
It is also pointed out that the court below has failed to appreciate that the finger print expert had confirmed the thumb impression of CW-50 on Exhibit P-104, which was an undertaking executed, to share the reward with the other informer.
Hence it is prayed that the appeal be allowed and the judgment impugned be set aside.
6. The learned counsel for the respondent while seeking to justify the judgment of the trial court, it is his endeavour to highlight the following aspects:
When Accused no.2 had made the proposal for the advance reward of Rs.55 lakh, it was in respect of a single informer. As the amount involved was beyond the financial power of Accused no.1, to whom the proposal was sent, it was 31 placed before the Advance Reward Committee, consisting of PW-10, PW-11, Accused no.1 and Accused no.2. That the Committee had considered the proposal and approved the advance reward amount to be paid to a single informer. Minutes of the meeting, signed by all the above members had affirmed this. On the other hand, if there were more than one informer, the Minutes would have reflected the role played by each informer and the quantum of the reward apportioned to each informer would have been reflected. The work sheet prepared by Accused no.2 and which accompanied the proposal also did not indicate two informers.
After Rs.55 lakh was sanctioned to be paid to the informer, who was only one, PW-3 is said to have prepared the bill and on the directions of Accused no.1 is said to have encashed the cheque and obtained a demand draft for Rs.11 lakh in the name of the Administrative Officer, Customs and is also said to have brought the remaining amount of Rs.44 lakh in cash. And that on the instructions of Accused no.1 gave the 32 cash and demand draft to Accused nos.2 & 3 under an acknowledgment, dated 29.7.1988. On the same day, Accused no.1 is said to have disbursed the cash of Rs.44 lakh to an unknown person at Bengaluru and obtained the left thumb impression mark of the said informer - recipient, on the back of the information slip and proforma, though it was not necessary to obtain two receipts. These acknowledgments were said to have been witnessed by Accused nos. 2 & 3.
Pw-5, Administrative Officer, is said to have encashed the demand draft for a sum of Rs.11 lakh and handed over the cash to Accused no.2, on 1.8.1988. On the same day, Accused no.1 is said to have disbursed the amount to informer no.2, who has acknowledged receipt and duly witnessed by Accused nos.2 & 3. It is pointed out that Accused no.1 had issued a disbursement certificate to the effect that Rs.55 lakh was paid to the right informer. But elsewhere it was recorded that the reward amount was split between two informers in a sum of Rs.44 lakh and Rs.11 lakh and paid on different dates. 33
On 4.1.1989, Accused no.2 is said to have written to Accused no.1 for payment of the final reward amount and is said to have recommended a total sum of Rs.1.10 crore. Accused no.1 is said to have placed the same before the Final Reward Committee, New Delhi, consisting of PW-10, PW-12 and Accused no.1. On 1.3.1989 the Committee is said to have approved the payment of the final amount of Rs.45 lakh. The file was said to have been given to Accused no.1 to carry the same with him to Bengaluru. It is alleged that Accused no.1 had destroyed the minutes of the meeting dated 1.3.1989 and had made a note in his own hand on the file to the effect that the final reward Committee had sanctioned Rs.1 Crore. It is highlighted that Accused no.1 had not brought it to the notice of the Reward Committee that there were two informers. The evidence of PW-10 and PW-11, the final reward committee members did indicate that they had considered payment to only one informer.34
The note of the CAO, who had prepared the bill for the remaining amount of Rs.45 lakh had also referred to an informer and the abstract contingent bill was also in respect of a reward to an informer. PW-1, the CAO, is said to have obtained a cheque for Rs.45 lakh in favour of the AO, Mangalore and the same was sent on 15.11.1989. On 17.11.1989, PW-5 is said to have encashed the same and is said to have handed over the cash to Accused no.2 at his residence.
On 18.11.1989, Accused nos.1 to 3 are said to have proceeded to Udupi along with the cash. Accused no.1 is said to have split the cash into two components of Rs.36 lakh and Rs.9 lakh, and is said to have disbursed it to fictitious persons, whose thumb impressions are said to have been witnessed by Accused nos. 2 & 3. Accused no.1 is then said to have issued a disbursement certificate indicating the payment of one component of Rs.45 lakh.
35
It is thus contended that the so-called informer no.1 to whom Rs.80 lakh had been paid, was a fictitious person and the said amount has been misappropriated by Accused nos.1 to 3. All the documents in question had been subjected to FSL examination and significantly the left thumb impression of informer no.1 does not tally with comparable marks, though the left thumb impression of informer no.2, CW-50, did tally.
It is hence contended that the judgment of the trial court is a well considered and reasoned order that would not warrant any interference.
7. On a consideration of the above rival contentions and on a close perusal of the voluminous record, the case is addressed. At the outset it is noticed that the trial court had framed ten charges against the appellants, namely, accused nos.1 to 3. It was alleged that there was a criminal conspiracy to misappropriate the reward amount of Rs.80 crore by falsifying documents and destruction of other records. And that 36 the accused had thereby committed offences punishable under Sections 409, 467, 471, 477A read with Section 120B and Section 34 of the IPC and under Sections 5(1)(c) & 5(2) of the PC Act, and under Sections 13(1)(c) and 13(2) of the PC Act.
It is unfortunate that the trial court has proceeded to address all the points for consideration together and arrived at omnibus findings, which are not methodical and certainly not with reference to the sequence of events.
The case of the prosecution was to the effect that the appellants had, during the period 1988-89, entered into a conspiracy to misappropriate reward money which was payable to informers and in this regard had falsified documents and forged the same. In that, on secret information said to have been provided to Appellant no.3 by an informer or informers, recruited by him, a seizure was made of gold biscuits of foreign origin that were sought to be smuggled into India at a place called Church Point, Gangulli Beach, South Kanara district, off the western coast of India, in the early hours of 7.4.1988. The 37 gold that was seized from an Arabian dhow, was of an estimated value of Rs.10.39 crore. It was said to be the biggest catch in the history of the Customs Department.
On the receipt of information of the seizure and on the recommendation of Accused nos.3 and 2, a proposal was made for payment of an advance reward of Rs.55 lakh to the informer, out of the total reward amount payable in a sum of Rs.1 crore. This was in accordance with the Government of India Guidelines, which provided that the informers were entitled to the reward on the recommendation of an Advance Reward Committee and a Final Reward Committee. The Advance Reward Committee which considered the proposal is said to have approved payment.
It was alleged that as per the original DRI-1, (A form in which the thumb impression, as identity of the informer is obtained by the officer recruiting him, in this case - appellant no.3, and apart from the thumb impression there are no other 38 details of the informer- and it is only the recruiting officer who would be privy to any other particulars of the informer) there was only one informer and it was not indicated that the same would be apportioned between more than one informer. The minutes of the meeting of the Committee, it was claimed, also did not reflect that there was more than one informer.
It was hence alleged that these appellants falsified the information slip, on which the secret information received is said to be recorded, the DRI-1, Payment vouchers and the despatch Register maintained in the office of the Customs at Kundapur and made it seem that the advance reward amount of Rs.44 lakh was disbursed to a fictitious informer no.1, by accused no.1 issuing a disbursement certificate and accused nos.2 & 3 actively colluding in the preparation of further documents to endorse such alleged disbursal.
Similarly, a further proposal for payment of the final Reward amount was said to have been made as on 18.11.1989, in a further sum of Rs.45 lakh. And again there was no 39 indication that there were two informers, but after the recommendation was approved by the Final Reward Committee, of which Accused no. 1 was a member, and who was entrusted with the responsibility of disbursement of the reward amount, he is alleged to have colluded with the other accused and again split the award amount into two components of Rs.36 lakh and Rs.9 lakh and paid only Rs.9 lakh to one informer, but misappropriated the other component. But made it seem that it had been disbursed to a second informer by falsifying documents, adopting the same modus operandi.
It is claimed that the above acts of the accused would never have come to light if not for the claim made by PW-25, as being the true informer on whose information the seizure of the contraband was possible, in this regard since he had allegedly been deprived of the reward amount by the accused, he had been constrained to file a writ petition in the writ jurisdiction of this court, in W.P.No.4419/1989, (Exhibit P-
108), laying claim to the reward amount. That petition is said 40 to have been contested by the CBI and ultimately is said to have been dismissed by an order dated 13.10.1992 ( Exhibit P-111). That order had attained finality. It is that circumstance which had prompted an investigation leading to the criminal proceedings.
In the above background, the matter is addressed at length.
Though there has been some controversy raised as to the validity of the order of sanction to prosecute the accused, the counsel for the appellants have not dwelt on the same with any great emphasis and hence the issue is ignored.
The prosecution has, in order to establish the charges levelled against the accused, has examined 48 witnesses and marked 142 documents as exhibits.
The First information report (Exhibit P-128) in this case is filed on 12.2.1995, a full seven years after the incident. It is also significant that, one Pookoya, and an informer who had received part of the reward amount, was named as accused 41 no.4 . In the final Charge Sheet, however, he was cited as CW-50 and was not sent up for trial. Significantly, he was also not examined as a witness at the trial.
It is seen that in so far as the collection of information prior to the seizure of the contraband, is by Accused no.3 as evidenced by Exhibits P-67, P-74, P-129 and P-130. He may have kept Accused no.2, who was his immediate superior posted of such information gathered from time to time. But there is no indication that Accused no.1 was in any manner involved. The conspiracy if any, as alleged is capable of being asserted only in respect of a period subsequent to the seizure as on 7.4.1988 and not earlier. The evidence on record does not support the theory of conspiracy before the said date.
On information being gathered from time to time, the same has been reduced as an information slip to which the alleged informers have subscribed their left thumb impressions and the said document is marked as Exhibit P-21. Of the two 42 sets of thumb impressions, one set belonged to CW-50, one of the informers. This is not in dispute.
In terms of the Customs Preventive Manual, (Exhibit P-
63) the secret information received from a recruit by the particular officer 'running' him, is required to be reduced into the prescribed form, DRI-1, and forwarded in original to the Office of the Directorate of Revenue Intelligence, New Delhi, and a copy is to be forwarded to the Collector of Customs, in whose jurisdiction the seizure takes place, as well as a copy to the Zonal Officer of the DRI of the jurisdiction. The compliance with this requirement by Accused no.3 is as per Exhibit P-77(a). This document is not alleged to have been tampered with.
In this regard the deposition of PW-23 is relevant. He has stated thus at paragraph 1 of his deposition:
"The entries at page 226 of Exhibit P-77 at sl. no. 5090, 5091 and 5092 are in my handwriting. The said three entries are together marked as Exhibit P-77
(a). Regarding the dispatch of letters of Sl.No.5091 43 and 5092, Re.1/- postal stamp each had been affixed.
In respect of the dispatch under Sl.No.5090, no postal stamp was affixed. The dispatch under Sl.No.5090 was sent to A1 at Bangalore. The entry at Sl.No.5091 was sent to C. Mathur, DRI, Bangalore."
The receipt of the said DRI-1 at Bangalore is established by the Inward Register number available on Exhibit P-40 and referred to by PW-15 thus :
"Ex.P.40 bears the signature of PW.13. PW.13 has written by name as "Khan" in that. That portion is now marked as Ex.P.40(d). It bears the Inward Register entry number. It is marked as Ex.P.40(e)."
And also in the deposition of PW-13 , thus :
"The said document has been initialed by Customs Collector (A1) on 12.4.1988, as at Ex.P.40(a). The same document has been initialed by me on 13.4.1988 and it was marked by me to Mr. Khan, UDC. The DRI.1 report at Ex.P.40 was received earlier to Ex.P.39."44
In the face of this independent evidence, it cannot be said that a copy of the DRI-1 was not received at the office of the Collector of Customs, Bangalore. This was due compliance with the procedure.
Further, the despatch of the DRI-1 to the Headquarters at New Delhi is established by Exhibit P-77(a). But the investigating officer, PW-48 has made this revelation, at paragraph 16 of his deposition:
"I have visited the office of DRI, Bangalore as well as the office of Director General of DRI office of New Delhi. But I have not recorded the statement of anyone of that offices in respect of receipt of any documents from Mangalore, from the office of Bangalore."
In the course of the trial it is noticed that the appellant had made an application under Section 91 CrPC seeking the original of DRI-1 dispatched from Mangalore to New Delhi. In response to which the respondent is seen to have declared, vide 45 memo dated 7.11.2003, that the same could not be produced as the records of the year 1988 had been destroyed.
This significant circumstance that the original DRI- 1 was never a part of the record, would weigh heavily against the prosecution. For the reason, that the crux of the case of the prosecution is of destruction, falsification and substitution of the original DRI-1, with a concocted document, by the accused. It is significant to note that PW-13 confirms in para 8 of his deposition that Exhibit P-40 and D-1 are all the same. This has also been accepted by PW-48 the Investigating Officer in para 18 of his deposition by stating "It is true that the document Ex.P.40, Ex.D.1 and Ex.D2(a) and Ex.P.51(h-1) are Photostat copies of same document." It would be relevant that PW-13 had also confirmed in his cross-examination that it was pursuant to Exhibit P-40 that the proposal for Advance Reward and Final Reward had been based. The relevant portion, namely para 8 of the deposition of PW-13 reads as under: 46
" I now see DRI.1, which bears my signature and which is already marked as Ex.P.40. My initial thereon is marked as Ex.P.40(c). Ex.P.40 is one of the documents, which is taken into consideration for the purpose of giving advance reward as well as final reward. i.e., both for the informers as well as the officials who played the role in the seizure. It is true that Ex.P.40 had accompanied the other documents, which were considered for grant of advance reward as well as final reward."
Hence, it cannot be lost sight of and would gain importance and significance that Exhibit P-40 was received by PW-13 on 12.4.1988 and further handed over to PW-15 on 13.4.1988 and entered into the Inward Register as per Exhibit P-40(e) on 20.4.1988. Consequently, the destruction of or falsification of DRI-1 is not established. By production of Ex.P.40 and Exhibit D-1 and by deposition of PW-13, PW-15 and PW-48 the document Exhibit P-40 as being the only DRI-1 stands established.
47
The respondent has relied upon the deposition of PW-10 and PW-11, the two members of the Advance Reward Committee, apart from Accused nos. 1 & 2, who were the other members, to establish that DRI - 1 at Exhibit P-40 was not seen by them or was shown to them at the meeting where they approved the payment of the advance reward amount. But it is the evidence of the prosecution itself, through PW-13, that it was pursuant to Exhibit P-40 that the proposal for the Advance reward had been made and considered by the Committee. Incidentally, it is also not in dispute that Exhibits P-40, D-1, D-2(d) , P-51 (h-1) and P- 47 (e-1) are all photocopies of the same document. These have been recovered in the course of investigation from several sources. It is not alleged by the prosecution that the same have been tampered with. Hence the evidence of PW-10 and PW-11, does not merit consideration, when it is baldly alleged that the document is substituted.
The minutes of the meeting of the Advance Reward Committee (Exhibit P-41) was typewritten on a manual 48 typewriter by PW-15, the tenor of the document would clearly refer to a plurality of informers. The minutes were duly signed by PW-10 and PW-11. However, the said witnesses claimed that the document had been tampered with by interpolation of letters to make it seem as if there was reference to more than one informer. It is significant that the investigating officer, PW-48, has with specific reference to this document stated that the same had not been sent for forensic examination and that there were no interpolations found in the document (paragraph 21 of his deposition). There is no charge framed as regards interpolation of the said document. But a case was however, sought to be made out on the basis of the same.
The document was very much in the custody of PW-13 and PW-15, before and after the Advance Reward Committee meeting, any tampering of the document could not have been carried out without their knowledge or active connivance.
It is also to be noticed that from a plain examination of the document, it is physically impossible to tamper with the 49 document. It is typed on a manual typewriter. And it is not possible to add a letter or substitute a word subsequently, to obtain a perfect alignment without distorting the spacing between the typed words to make alterations. Or rather to effect changes in such a manner to change the tenor of the document to read as if it was with reference to a plurality of informers, rather than the alleged original text, which according to PW-10 and PW-11, was with reference to a single informer. According to them the letter "s" was added to the word "informer" and the words "they" and "were", were inserted in the place of the words "he " and "was". This was not possible. It is significant that this document was not examined by any hand writing expert nor was it sent for any forensic examination.
If the Minutes of the Advance Reward Committee could not be found fault with, the subsequent meeting of the Final Reward Committee and the release of the final reward also cannot be faulted.
50
Pursuant to the approval of the Advance Reward Committee, the steps taken to draw the funds for making payment having been undertaken and in that regard the prosecution had examined PWs.1 to 7, 19, 36, 37 and 47 to establish the drawal of the money for making payment to the informers. It is seen that as per Exhibit P-74, which is a document addressed by accused no.3 to Accused no.2, much prior to the date of seizure, 7.4.1988, would indicate that there were indeed two informers and that a sharing ratio of 70:30 was proposed. And that there may have been a subsequent agreement between the informers to vary the sharing ratio to 80:20, is evidenced by Exhibit P-104, whereby CW-50, one of the informers has agreed to the said sharing ratio. The thumb impressions of CW-50 on Exhibit P-104 has been confirmed by the finger print expert PW-24. (paragraph 23 of his deposition). This would certainly point to the existence of two informers. 51
In so far as the Final Reward Committee and the Minutes of its meetings having been destroyed by Accused no. 1 is concerned, unlike , in respect of the Minutes of the meeting of the Advance Reward Committee, where PW-15, the witness who had prepared the minutes had been examined, no witness who may have been involved in the clerical chore of preparing the document has been examined to demonstrate its existence. PW-10 has stated that the minutes of the meeting were dictated by PW-12 . But no person has been examined as to the text of that minutes. When its existence is not established, the destruction of the same as alleged cannot be readily accepted.
The existence of two informers is disclosed in the information slip, exhibit P-21, which contains two sets of thumb impressions and which was recorded much prior to the seizure. Further, separate receipts at Exhibits P-23 to P-26 were executed by two informers with their separate thumb impressions, one of whom was CW-50, while receiving the 52 Advance and Final Reward amounts, would also indicate the existence of two informers.
Accused no.2, has in his office file recorded a note dated 1.8.1988, Exhibit P-57, about disbursement of the reward amount to two informers. Similarly, a note at Exhibit P-58, dated 18.11.1989, about disbursement of the award amount to two informers.
Further the copies of DRI-1, as per Exhibit P-40, D-1, D-2(d), P- 47(e-1) and P-51(h-1) refer to informers and is also endorsed by witnesses who have spoken to the same.
The prosecution seeking to urge that PW-25 was indeed the true and only informer and ought to have received the award, is contrary to its own stand. The said witness had himself stated that CW-50 was another informer.
The said PW-25 who had filed a writ petition staking his claim to the reward had categorically claimed that he had not affixed his thumb impression to any receipts and that only the thumb impressions of CW-50 had been obtained. The said 53 petition was filed much prior to the filing of the FIR and his deposition is completely inconsistent with the petition averments. These inconsistent claims of the said witness made him an unreliable witness.
The respondent CBI, in opposing the writ petition had contended that PW-25 was not the true informer and that the reward amount had been paid to the rightful persons.
The thrust of the prosecution case and the trial court's judgment is based mainly on the evidence of PW-10 to PW-12.
It is seen that Accused nos.1 & 2 and PW-10 & PW-11, were the members of the Advance Reward Committee. Whereas PW-10 & PW-12 along with Accused no.1 were the members of the Final Reward Committee.
It transpires that the Member, (P&V), Central Board of Excise and Customs had written identical letters dated 4.1.1994, addressed to PW-10 to 12 and Accused no.1, seeking clarifications as to why the award amounts were not split up among informers, when there were two informers. Those 54 letters are produced as Exhibits P-42, P-54 and P-137. PW-10 to PW-12 had chosen to sustain that there was only one informer and hence had addressed a joint reply in response to the said query.
It was suggested on behalf of Accused no.1 that the joint reply was in fact a reply by PW-10 and mutely agreed to by PW-11 and 12, as they were his sub-ordinates and does not reflect an independent declaration of the true facts and circumstances and was a biased account to frame Accused no.1 on account of some previous grudge. Though such a contention is extraneous to these proceedings, there are indeed some stark contradictions, which would certainly discredit the veracity of the joint reply.
The following contradictions in particular are to be noted:
(a) Para 38 of PW-10's deposition:
"It is false to suggest that PW-11 came to Delhi to prepare Exhibit P-47...... It is false to suggest that 55 PW-11- Sukumar Shankar dictated the contents of Exhibit P-47."
(b) Para 26 of PW-11's deposition "Exhibit P-47 was prepared at Bangalore by me and PW-10. After going from Calcutta to Delhi, in Delhi I signed Exhibit P-47 on calling of PW-10. Information given in Exhibit P-47 in respect of the final reward committee was given by PW-10. When Exhibit P-47 was prepared, PW-12 Thampi was also sitting along with us."
(c) Para 38 of PW-10's deposition:
"It is false to suggest that PW-12 came to Delhi to prepare Exhibit P-51. It is false to suggest that ...... PW-12 dictated contents of Exhibit P-51."
(d) Para 22 of PW-12's deposition:
"Exhibit P-51 was discussed at Bangalore and prepared and typed at Delhi along with PW-10. It is false to suggest that Exhibit P-51 was prepared by PW-
10. Myself and PW-10 sat together and prepared Exhibit P-51. It is false to suggest that PW-11 was also there at the time of preparing Exhibit P-51." 56
The above would throw some doubt on the veracity of the statements of the said witnesses.
It is also seen that during the investigation, the residences of all the accused as well as CW-50 has been searched. Significantly, neither the CBI Officer who is said to have searched the residence of the office of Accused no.1 nor the witnesses to the search have been examined by the Prosecution. It is also seen that the material seized during the search have been returned. The bank lockers and the bank accounts of the said accused and his family members, which were sealed and frozen have been reversed. He has never been arrested at the time of search or thereafter.
In so far as the evidence of the finger print expert (PW-24) is concerned, the following particulars emerge from the evidence. The investigating officer (PW- 48) had referred the thumb impressions of the informers taken on the information slip ( Exhibit -21) at the time of recording of the 57 information, as well as their thumb impressions taken at the time of disbursement of the advance reward and the final reward to them.
The gist of the opinion expressed by the witness is as follows :
(a) 2nd Informer (CW-50):
"(i) Thumb impressions marked as Q6, Q7 and Q8 are on the information slip taken at the time of recording of the information, disbursement of advance reward of Rs.11 lakh and disbursement of final reward of Rs.9 lakh (Exhibits P21 and P-
22).
Q9 and Q9A are thumb impressions on receipts (Exhibit P-26) of advance reward disbursement.
Q10 is thumb impression on the receipt for final reward disbursement (Exhibit P-24).
Q49 is thumb impression on the undertaking given by CW-50 to Accused No.3 (Exhibit P-104) on sharing of reward amount with other Informer.
(ii) The findings of PW-24 are that Q6, Q8, Q9 and Q10 are of CW-50 [para 6, 7 and 8 of PW-
5824's deposition]; Q7 and Q9A do not contain sufficient number of clear ridge characteristics for identity and comparison [para 6, 7 and 8 of deposition (page 215 of the paper book)]; and Q6, 7, 8, 9, 9A and 10 are LTI (para 18I(i) of the deposition (at page 222 of the paper book) Q49 on Exhibit P-104 is of CW-50 (para 18II of the deposition) (page 222 of the paper book)
(iii) It is submitted by the appellant that PW- 24 has established that CW-50 is the second informer and he received the reward amount of Rs.20 lakh. It is also established by PW-24 that CW.50 gave undertaking (Exhibit P-104) to share the reward with another informer.
(b) 1st Informer
(i) Thumb impressions marked as Q1, Q2 and Q3 are on the information slip taken at the time of recording of the information on 4.4.1988, disbursement of advance reward of Rs.44 lakh and disbursement of final reward of Rs.36 lakh (Exhibits P-21 and P-22).
59
Q4 is the thumb impression on receipt of advance reward disbursement (Exhibit P-25) Q5 is the thumb impression on receipt of final reward disbursement (Exhibit P-23) Q48 is the thumb impression of 1st informer on Exhibit P-30 i.e. source report dated 18.1.1988 enclosed with Accused No.3's letter dated 19.1.1988.
(ii) The findings of PW-24 are that Q1, Q2, Q3 and Q4 are different from the specimen of PW- 25 (para 9 of the deposition and Exhibit P-79) (page 216 of the paper book).
Q5 is blurred, smudged and does not contain sufficient number of clear ridge characteristics (para 10 of the deposition) (at page 216 of the paper book).
Q2 and Q4 are identical (para 11 of the deposition) (page 216 of the paper book) Q2 and Q4 are different from Q1 and Q3 (para 12 of the deposition and Exhibit P-81) (page 217 of the paper book) Q1 and Q3 do not admit inter-se comparison (para 13 of the deposition) (page 217 of the paper book) 60 Q1, Q2, Q3 and Q4 are different from the specimen thumb impressions of Accused Nos.1, 2, 3 and their family members (para 17(1) of the deposition) (page 220 of the paper book).
Q5 is blurred (para 17(2) of the deposition) (page 220 of the paper book) Some specimen finger prints are not clear (para 17(3) of the deposition) (page 220 of the paper book) Q1, Q3, Q5 and Q48 are left thumb impressions (para 18 I (ii) of the deposition) (page 222 of the paper book) Q2 and Q4 - it is not possible to say whether they are right hand or left hand thumb impressions (para 18 I (iii) of the deposition) (page 222 of the paper book) Q5 is blurred (para 18 III of the deposition) (page 223 of the paper book) Q48 on Exhibit P-30 is blurred, smudged and do not contain sufficient number of clear characteristics (para 18 III of the deposition) (page 223 of the paper book)
(iii) The conclusion of the findings of PW- 24 is that none of the thumb impressions are of 61 PW-25, Accused Nos.1, 2, 3 and their family members. In other words, none of them is the first Informer and did not receive the reward amount of Rs.80 lakh. It is gone to a different person who is the first informer.
PW-24 has opined that Q1 and Q3 do not admit inter se comparison; that Q2 and Q4 are identical but different from Q1 and Q3. If Q1 and Q3 cannot be compared as relevant areas are not available, how can PW-24 opine that they are different from Q2 and Q4? To this extent his report is not correct. He has further opined that Q1 and Q3 are left hand thumb impressions but he cannot say whether Q2 and Q4 are of left hand thumb impressions or right hand thumb impressions. Obviously Q2 and Q4 are right hand thumb impression and that is the reason why they are different from Q1 and Q3 which are left hand thumb impressions.
Q5 is blurred and not comparable with any other thumb impression.
Q48 on Exhibit P-30 supposedly of the first Informer, is also blurred and not comparable with any other thumb impression.
62
In view of the above analysis of the reports and the deposition of PW-24, Q1, Q2, Q3, Q4, Q5 and Q48 are to be taken as the thumb impressions of one person who is certified, identified and recruited by Accused No.3 as the first informer since contrary to this conclusion is not established by the respondent.
Thus, the evidence of PW-24 does not support the case of the respondent, as it confirms
(i) the payment of reward to two informers recruited and identified by Accused No.3 in this case, (ii) that PW-25 is not the first informer, and
(iii) that neither Appellant, Accused No.2, Accused No.3 nor any of their family members have taken the reward amount."
In so far as the allegation that the reward amount of Rs.80 lakh was shown to have been disbursed to a fictitious informer and misappropriated by the accused is concerned, the prosecution has not disputed the disbursement of the reward amount in a sum of Rs.20 lakh to CW-50, referred to as the second informer. And from the material on record there was 63 indeed another informer fictitious or otherwise, who had affixed his thumb impressions at the time of disbursement of the reward amount .
It is an admitted fact that the identity of the informers is completely concealed. This is indeed confirmed by the several witnesses for the prosecution itself (PW-33, PW-34 & PW-46 ) The identity of the informer being known only to Accused no. 3 is hence not an unusual circumstance.
It is seen from the record that the Investigating Officer had called upon the Accused to produce the informers before him. (Exhibits P-131, P-132 & P-133 ). Accused no. 1 is said to replied ( Exhibit P-134 ) to state that he neither knew their identity nor was expected to know the same and hence could not comply. Accused nos.2 & 3, are also said to have been instructed by the Central Board of Excise and Customs not to disclose the identity of the informers to the CBI. ( Exhibits P- 135 & P-136 as well as Exhibits D-3 and D-4) This was in conformity with Section 25 of the Evidence Act, 1872, which 64 lays down to that effect. Conversely, no adverse inference could be drawn of the non -existence of one of the informers.
Hence the conspiracy as between the accused in the disbursement of the reward amount to a fictitious informer, cannot be said to have been established on the basis of the evidence on record. There is also no incriminating material to indicate that any part of such ill-gotten wealth had found its way to the hands of the accused.
In conclusion, it may be said that the Charges against the accused are not established.
i) Criminal conspiracy : The most important ingredient that required to be established in respect of the allegation of criminal conspiracy was the agreement between the accused to commit an offence. The evidence on record does not disclose any such agreement between the accused.
ii) Charges ii) to vi) - Misappropriation of reward amount, criminal misconduct and deriving pecuniary 65 advantage: None of these charges can be said to have been established.
iii) Charge no. vii): Disappearance of evidence : The allegation of Accused no. 1 having destroyed the minutes of the meeting of the Final Reward Committee, is not proved to have been drawn in the first place. The fact of its destruction being proved was even more remote.
iv) Charges no. viii) & ix) : Falsification of DRI-1, Information slip, and destruction of Minutes , etc., : The lack of evidence or rather evidence to the contrary that is available in respect of the particular allegations in the above regard is already discussed at length and hence the same are not established.
v) Charge no. x) : Use of forged payment vouchers: The question does not arise. There were acknowledged payment vouchers, which were alleged to be forged. The same is not established.
66
In the result, the appeals are allowed the judgment impugned is set aside. The accused are acquitted. The bail bonds executed by them stand discharged and the fine amount if any paid shall be refunded to the appellants.
Sd/-
JUDGE KS*