Delhi District Court
Cbi vs Manjeet Singh on 20 December, 2012
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI.
CBI No.49/11
RC No.6(E)/2001/CBI/EOWI/New Delhi.
U/s 120B r/w Ss.420/467/468/471/511 IPC
and S.15 r/w S. 13 (2) and 13 (1) (d) of P.C. Act, 1988.
CBI
Versus
1. Manjeet Singh
S/o. S. Baldev Singh
R/o F.No. 97, Ist Floor,
The Millenium Apartments,
Pocket7, Sector21,
Rohini, Delhi.
2. Sarabjeet Singh @ Mickey
S/o Manjeet Singh
R/o C556, Ist Floor,
Avantika, Sector1,
Rohini, Delhi85.
(New address as provided by accused on 15.03.2011)
3. Kuldeep Singh
S/o Late Sh. Baldev Singh
R/o HL29, 2nd Floor,
LBlock, Hari Nagar,
Near Fateh Nagar,
New Delhi.
(New address as provided by accused on 15.03.2011)
CBI Vs. Manjeet Singh and others Page 1/64
4. Pramod Kathuria
S/o Late Sh. Bhagwan Dass Kathuria
R/o E3/32, B.P.,
NIT Faridabad,
Haryana.
(New address as provided by accused on 21.12.2010)
5. Vikas Singh
Proprietor M/s Wonderland Trading Co.
K29, New Mahavir Nagar,
New Delhi.
6. Sarabjeet Singh
S/o Sh. Rajinder Singh
R/o L132, DDA Flats,
Kalkaji, New Delhi.
......Accused Persons
Date of institution of case : 02.04.2003
File received on transfer on : 30.04.2011
Date of reserving judgment : 13.12.2012
Date of pronouncement of judgment : 20.12.2012
JUDGMENT:
I. CASE OF PROSECUTION :
1. The case of the CBI, in brief, is that the case RC6 (E)/2001EOWI/DLI was registered in CBI, EOWI, Delhi branch on 29.06.2001 on the basis of written complaint received from Sh. S.K. Shingal, the then Commissioner of Customs, Inland Container Depot, CBI Vs. Manjeet Singh and others Page 2/64 (in short 'ICD'), Tughlakabad (in short 'TKD'), New Delhi. It was alleged in the FIR that M/s Akshika Exports 302 (a nonexistent firm), Vardhman Chambers, Community Centre, opposite Sonia Cinema, Vikas Puri, New Delhi attempted to obtain duty drawback amount from customs Delhi on the basis of two fake and forged bank's certificates Ex.PW3/3 and Ex.PW3/4 purportedly issued by the Bank of Punjab Ltd., Rajouri Garden, New Delhi and also obtained the duty drawback of Rs.5.80 lacs from Customs, Mumbai.
2. Accused No. 1 Manjeet Singh S/o Late Sh. Baldev Singh, accused No. 2 Sarabjeet Singh @ Mikki (son of Manjeet Singh) accused No.3 Kuldeep Singh @ Mahender Singh (brother of Manjeet Singh), accused no. 4 Pramod Kathuria, Accused no.5 Vikas Singh proprietor M/s Wonderland Trading Company, accused no.6 Sarabjeet Singh, P.A. to the then Commissioner, Customs (Accused nos. 1 to 6 are hereinafter referred to as 'A1 to A6' respectively) and Rajesh Suri @ Akash Malhotra (cobrotherinlaw of Manjeet Singh) entered into a criminal conspiracy during the year 199899. The object of this conspiracy was to cheat the Customs Department, Mumbai and Delhi in the matter of claiming duty drawback against the exports made to Nairobi (Kenya).
3. It is pertinent to mention here that the CBI moved an application dated 10.01.2002 for granting pardon to the accused CBI Vs. Manjeet Singh and others Page 3/64 Rajesh Suri @ Akash Malhotra u/s 306 Cr.PC so as to make the aforesaid accused, an approver in the present case. The said application was allowed by the Ld. MM vide order dated 22.01.2002 whereby pardon was tendered to the aforesaid accused on the condition that he would make full and true disclosure of whole of the circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. Accordingly, accused Rajesh Suri @ Akash Malhotra was made an approver in the present case.
4. In furtherance of criminal conspiracy, the aforesaid accused persons formed a fictitious firm under the name and style of M/s Akshika Exports at 302, Vardhman Chamber, Community Centre, opposite Sonia Cinema, Vikas Puri, New Delhi and Rajesh Suri @ Akash Malhotra was named the proprietor of the firm. A4 Pramod Kathuria helped the said firm in obtaining the Import Export Code (in short 'IEC') number from the Jt. DGFT, New Delhi; endorsement from Apparel Exports Promotion Council (in short 'AEPC'), IEC No. 0598009990 dated 01.02.1998 and, thus, AEPC endst. No. Ky/8/24/018135, 136 and 137 were alloted to M/s Akshika Exports. Akash Malhotra was a fictitious name and Rajesh Suri impersonated himself as Akash Malhotra.
5. A1 Manjeet Singh initially opened a travel agency in the CBI Vs. Manjeet Singh and others Page 4/64 name and style of M/s Aroma Travels and asked his cobrotherinlaw Rajesh Suri @ Akash Malhotra (approver) to look after the affairs of the travel agency and was given the post of Manager. The same was opened at 302, Vardhman Chamber, Community Centre, opposite Sonia Cinema, Vikas Puri, New Delhi. In the meantime, Rajesh Suri @ Akash Malhotra came in contact with A4 Pramod Kathuria, who introduced himself as Pramod Malhotra. A4 Pramod Kathuria and A1 Manjeet Singh both persuaded Rajesh Suri to open a current account in the Bank of Punjab Ltd., J2/4, Rajouri Garden, New Delhi in the name of Akash Malhotra allegedly the brother of A4 Pramod Malhotra (real name Pramod Kathuria) whom A4 Pramod Kathuria told was a resident of Nairobi in Kenya. A4 Pramod Kathuria told Rajesh Suri that he was expecting some payment from his brother Akash Malhotra who is the proprietor of M/s Akshika Exports. He said that he needed a current account in the name of M/s Akshika Exports to deposit the money which he had expected to receive from his brother. Both A4 Pramod Kathuria and A1 Manjeet Singh promised to pay him a sum of Rs.10,000/ for this job. Accordingly, Rajesh Suri opened a current account No. 1104655 dated 03.10.1998 in the Bank of Punjab Ltd., Rajouri Garden, New Delhi in the name of M/s Akshika Exports but he impersonated himself and signed as Akash Malhotra. The said account was introduced by A5 Vikas Singh, CBI Vs. Manjeet Singh and others Page 5/64 proprietor M/s Wonderland Trading, New Delhi.
6. It is further the case of the prosecution that no firm by the name of M/s Akshika Exports ever existed at the given address i.e 302, Vardhman Chamber, Community Centre, Vikas Puri, New Delhi and no such firm in the name and style of M/s Wonderland Trading Corporation was in existence at K29, New Mahavir Nagar, New Delhi. During the period June/July, 1998, A2 Sarabjeet Singh @ Mikki son of accused Manjeet Singh took one room on rent and he instead of staying there himself, put up his servant namely Ghosh there. The introducer of the current account of M/s Akshika Exports, A5 Vikas Singh and servant Mr. Ghosh could not be traced. Rajesh Suri @ Akash Malhotra also opened current account No. 2261 dated 17.10.1998 in PNB, ICD, TKD, New Delhi in the name of M/s Akshika Exports for duty drawback on the instructions of A1 Manjit Singh and A4 Pramod Kumar Kathuria. Rajesh Suri signed as Akash Malhotra, Prop. M/s Akshika Exports.
7. The duty drawback claim of M/s Akshika Exports was made against the exports made to M/s Winthrop Traders Ltd., Nairobi (Kenya). The export was made through three shipping bills from ICD, TKD, Delhi. The export was made in respect of readymade garments containing ladies blouses. The amount of duty drawback came to Rs. 15,09,354/.
CBI Vs. Manjeet Singh and others Page 6/64
8. M/s Akshika Exports could not get the duty drawback claim in the aforesaid export as the duty drawback claim of M/s Akshika Exports was put in the Bank Realization Certificate (in short 'BRC') queue by Sh. Mahinder Singh, the then Deputy Commissioner of Exports. In order to know the factual position of the duty drawback, A3 Kuldeep Singh @ Mohinder Singh and A4 Pramod Kathuria approached the then PA to Commissioner, Customs i.e A6 Sarabjeet Singh S/o Sh. Rajinder Singh to get duty drawback amount of Rs. 15,09,354/ released. For this purpose the accused persons submitted the forged BRCs purportedly issued by Bank of Punjab Ltd., Rajouri Garden, New Delhi and signed by Sh. Y.M. Bhardwaj, Assistant Vice President. M/s Akshika Exports made exports during the 1998 whereas it approached the Customs Department for duty drawback after lapse of one year. It is the case of the prosecution that Rs.1 lakh was given to Sh. Sarabjeet Singh, P.A. to the then Commissioner, Customs by A4 Pramod Kathuria and A3 Kuldeep Singh @ Mohinder Singh through Sh. Harbhajan Singh @ Judge, driver of accused Pramod Kathuria for getting the duty drawback claim of Rs.15 lacs passed. Since the sanctioning officer smelt some suspicion, he did not pass the claim and ordered for release of duty drawback amount only after verification. The verification was done by Sh. U.S. Bisht and Sh. Surinder Kumar, Customs Inspectors who found that M/s Akshika CBI Vs. Manjeet Singh and others Page 7/64 Exports was a nonexistent firm.
9. M/s Akshika Exports succeeded in obtaining the duty drawback claim of Rs.13,83,893/ against the export made from JNPT, Mumbai to Hendrica Corpn., Nairobi against five shipping bills in the matter of readymade garments containing ladies blouses. Similarly, current account No. CC57542 in State Bank of India, JNPT, Mumbai on 25.07.2001 was opened by M/s Akshika Exports through its proprietor Akash Malhotra. The introductory letter submitted by A1 Manjeet Singh with SBI, Nhava Sheva Port purportedly issued by the Bank of Punjab Ltd. was also found fake and forged. A1 Manjeet Singh went to Mumbai and he signed as Akash Malhotra for opening the aforesaid current account at SBI, Nhava Sheva Port, Raigarh, Maharashtra. This current account was opened for the purpose of the duty drawback and the aforesaid bank also issued two drafts of Rs. 8,00,000/ and Rs.5,80,000/ in favour of M/s Akshika Exports, New Delhi. The same was later on credited in the current account maintained in Bank of Punjab Ltd., Rajouri Garden, New Delhi on 22.09.99 09.10.99 and the entire amount was withdrawn through six cheques which were already signed by Rajesh Suri as Akash Malhotra and handed over to Manjeet Singh. Thus, there is clear evidence that out of total duty drawback amount of Rs.13 lacs, Rs.7.50 lacs was withdrawn by A1 Manjeet Singh himself. No export bills were CBI Vs. Manjeet Singh and others Page 8/64 submitted to the Bank of Punjab Ltd. for realisation of export amount which clearly indicate the ill intention of accused persons and their sole motive of export was to cheat the Customs Department by obtaining duty drawback.
II. COGNIZANCE AND COMITTAL PROCEEDINGS :
10. Initially, on these allegations, the charge sheet was filed in the Court of Ld. MM against A1 to A6 for commission of offences u/s 120B r/w Ss. 420/467, 468, 471 and 511 Indian Penal Code, 1860 (in short 'IPC'). Sanction for prosecuting A6 Sarabjeet Singh, P.A to the then Commissioner, Customs, New Delhi was sought from the competent authoirity for prosecuting him under the offences of Prevention of Corruption Act, 1988 (in short 'P.C. Act'). Subsequently, after obtaining sanction from the competent authority, supplementary charge sheet dated 08.10.2002 was filed against A6 Sarabjeet Singh son of Sh. Rajender Singh in the court of Ld. MM. Since the offences punishable under P.C. Act were exclusively triable by the court of Special Judge, CBI, Ld. MM, after supplying the copies of documents to accused, committed the present case to the court of Special Judge, CBI on 18.3.2003.
11. It is pertinent to mention here that the names of S/Sh.Jagmohan @ Jagga (brotherinlaw of Manjeet Singh) and Harjinder Singh @ Pintoo (brother of Manjeet Singh) also cropped up CBI Vs. Manjeet Singh and others Page 9/64 in the confessional statement of Rajesh Suri @ Akash Malhotra recorded u/s 164 Cr.PC by the Ld. MM, Patiala House Courts, New Delhi. However, no corroborative evidence could be collected by the prosecution to substantiate the allegations and, therefore, they were not charge sheeted and their names were kept in column no. 2 of charge sheet.
12. Before the committal of the present case to the court of Special Judge, CBI, A5 Vikas Singh absconded and, accordingly, he was declared a proclaimed offender vide order dated 02.12.2002 passed by Ld. MM. During trial, A1 Manjeet Singh expired on 27.11.2007 and, thus, the case against him stood abated. Further, A4 Pramod Kathuria absconded during trial and, therefore, he was declared a proclaimed offender vide order dated 06.08.2011.
III. CHARGES FRAMED :
13. On the above allegations, charges were framed vide order dated 20.02.2006 passed by Ms. Indermeet Kaur Kauchar, Ld. Special Judge, CBI (as her Lordship then was) against accused A1, A2, A3, A4 and A6 for having committed offences punishable under Sections 120B r/w Ss. 420/511, 471 IPC and Sections 13 (2) r/w S. 13 (1) (d) and 15 of P.C. Act. A1 Manjeet Singh was separately charged for having committed offences punishable under Sections 420 and 420/511 IPC. A6 Sarabjeet Singh was also separately charged for CBI Vs. Manjeet Singh and others Page 10/64 having committed offences punishable u/Ss. 13 (2) r/w 13 (1) (d) and 15 of P.C. Act. All the accused pleaded not guilty and claimed trial. They were accordingly put to trial.
IV. PROSECUTION WITNESSES :
14. Trial proceeded and in the course of trial, the prosecution in order to substantiate its case against the accused persons, examined thirty three witnesses in all who may be clubbed in five groups for convenience. The five groups with role of each witness in brief are as here under :
(1) WITNESSES FROM CUSTOMS DEPARTMENT :
(i) PW5 Mahender Singh is also a formal witness who kept the matter of M/s Akshika Exports in BRC queue.
(ii) PW9 U S Bisht got verified the certificates Ex.PW3/3 and Ex.PW3/4 issued by Bank of Punjab Ltd., Rajouri Garden, New Delhi to be forged and fabricated.
(iii) PW12 Joseph Kuok is a formal witness who gave 'let export order' qua the shipping bill of M/s Akshika Exports on 19.11.1998.
(iv) PW15 Manish Mohan raised a query on suspicion as B R C Ex.PW15/A was not in set format.
(v) PW17 Rajeev Kumar Sharma testified that A3 Kuldeep Singh asked him to help A6 Sarabjeet Singh relating to some CBI Vs. Manjeet Singh and others Page 11/64 export work.
(vi) PW20 Vinod Kumar Goel proved the shipping bills as Ex.PW20/A1 to Ex.PW20/A3 which were generated from Electronic Data Interface (in short 'EDI') system of Customs.
(vii) PW22 Musheer Ahmad is a formal witness who testified about the bill of lading favouring M/s Akshika Exports.
(viii) PW23 Ashok Kumar Gupta is also a formal witness who proved his letter Ex.PW23/A regarding export outstanding in the name of M/s Akshika Exports.
(ix) PW26 M K Gupta proved the shipping bills (five in number) as Ex.PW26/A collectively.
(x) PW27 S K Singhal is the complainant who lodged the complaint with the CBI and he has proved his complaint as Ex.PW15/C.
(xi) PW28 M P Soares deposed about the drawback (DBK) procedure.
(xii) PW29 Ashok Kumar Aswal deposed about the procedure for export at JMPT.
(xiii) PW30 Harvinder Singh deposed about the procedure followed by Custom House Agent (in short 'CHA').
(xiv) PW31 Lovekesh Sharma, Customs Inspector, was dropped by the prosecution.
CBI Vs. Manjeet Singh and others Page 12/64
(2) WITNESSES FROM BANKS:
(i) PW3 D S Anand is the branch head of the Bank of Punjab Ltd., Rajouri Garden and he testified that accounts in the name of M/s Akshika Exports and M/s Wonderland Trading were opened in their bank.
(ii) PW10 Ms. Rumadey, Chief Manager, SBI, Mumbai testified that DD for a sum of Rs.8 lacs in favour of M/s Akshika Exports was counter signed by her.
(iii) PW14 Kamal Kumar Kochhar was the introducer of the account opened in the name of Manjeet Singh in Indian Bank, Rajouri Garden Branch.
(iv) PW21 P T Prabhu proved that demand draft Ex.PW21/A for Rs.5.8 lacs favouring Bank of Punjab Ltd. a/c M/s Akshika Exports.
(v) PW24 W B Dharne proved his letter Ex.PW24/A written to the S.P., CBI in reply to the fax message.
(vi) PW25 Babu Lal is the Manager, Canara Bank, New Delhi who proved the documents such as account opening form/statement of account etc as Ex.PW25/A to Ex.PW25/F relating to M/s Sarbsukh Enterprises.
(vii) PW33 I D Chaudhary proved the attested copy of IEC CBI Vs. Manjeet Singh and others Page 13/64 code and statement of account of M/s Akshika Exports as Ex.PW33/A and Ex.PW33/B respectively.
(3) PRIME WITNESSES:
(i) PW7 Rajesh Suri (approver) is the star witness of the prosecution who has testified against the accused persons and has unfolded the prosecution story.
(ii) PW11 Harbhajan Singh @ Judge is the driver of the A4 Pramod Kathuria. He turned hostile to the prosecution.
(4) LANDLORDS OF DIFFERENT PREMISES :
(i) PW1 Bal Karan Khosa testified that premises 302, Vardhman, Vikas Puri, New Delhi was never rented out to M/s Akshika Exports.
(ii) PW13 Darshan Kaur Malhotra testified that premises S II/14, Old Mahaveer Nagar, Post Office Tilak Nagar, New Delhi was never let out by her to anybody including Akash Malhotra of M/s Akshika Exports.
(iii) PW16 Sardar Kulwant Singh testified that no one by the names of Vikas Singh and Akash Malhotra lived in his house at 936, Dr. Mukharjee Nagar, Delhi as tenants.
(5) OTHERS :
(i) PW2 Kaushal Srivastav accorded sanction Ex.PW2/1 for prosecuting A6 Sarabjeet Singh.
CBI Vs. Manjeet Singh and others Page 14/64
(ii) PW4 Ajay Verma is a formal witness who worked with A4 Pramod Kathuria from 1989 to 1992 and got the endorsement from APEC for M/s Akshika Exports at the instance of A4 Pramod Kathuria.
(iii) PW6 Hari Om Ravi identified A1 Manjeet Singh who got the letter head of M/s Akshika Exports printed from their press.
(iv) PW8 Subhash Jain is a formal witness who testified that A4 Pramod Kathuria used to purchase ladies top from different Kabadiwalas.
(v) PW18 Nagesh Goenka testified that M/s Akshika Exports (original) was his company having its offices at Mumbai and Delhi and the company was also having IEC codes.
(vi) PW19 S C Mittal is the handwriting expert who has given his detailed report as Ex.PW19/A.
(vii) PW32 Rekha Sangwan is the I.O. of the case. V. STANCE OF ACCUSED U/S 313 CR.P.C. AND DEFENCE EVIDENCE :
15. The statements of accused persons u/s 313 Cr.PC were recorded when a chance was given to explain the incriminating evidence against them. Accused denied the case of the prosecution in its entirety and claimed that they have been falsely roped in the present CBI Vs. Manjeet Singh and others Page 15/64 case by the IO in order to save the person named in the FIR. They were not named in the FIR and were arrested without any evidence.
Only A6 Sarabjeet Singh examined his father Sh. Rajender Singh in his defence as DW1. The remaining accused chose not to examine any witness in their defence. DW1 Rajinder Singh testified that he got FDR Ex.PW32/K for a sum of Rs.50,000/ from his funds as well as the funds contributed by his wife and the said FDR is in their joint name. In his crossexamination by Ld. PP, DW1 deposed that his wife was doing the work of stitching and embroidery and the funds for the said FDR were partly provided by her from her earnings. DW1 categorically denied the suggestion of the Ld. PP that the said FDR was from the funds of the bribe amount which was received by his son A6 Sarabjeet Singh or that he was deposing falsely being the father of A6 in order to save him.
VI. MATERIAL PROSECUTION WITNESSES :
16. The material witnesses in this case are PW3 D S Anand, PW7 Rajesh Suri (approver), PW9 U S Bisht, PW11 Harbhajan Singh (driver), PW17 Rajeev Kumar, PW18 Nagesh Goenka, PW27 S K Singhal and PW32 Ms. Rekha Sangwan (I.O.) on whose testimonies the prosecution case rests. All other remaining witnesses are formal in nature and do not connect the accused persons directly with the alleged offences. Their testimonies are basically to support CBI Vs. Manjeet Singh and others Page 16/64 the deposition of other witnesses to complete the chain.
17. PW3 D S Anand was posted as Branch Head in Bank of Punjab, Rajouri Garden from September, 2000 to July, 2002. He took charge from Sh. Y M Bhardwaj who had resigned from the said bank. He deposed that account no. 1104655 was opened in the name of M/s Akshika Exports by Sh. Akash Malhotra on 03.10.98 and the same was introduced by Sh. Vikas Singh (A5), Proprietor of M/s Wonderland Trading Corporation. He categorically denied certificates Ex.PW3/3 and Ex.PW3/4 having been issued by Sh. Y M Bhardwaj. He further deposed that Sh. Y M Bhardwaj has himself mentioned on the back of the certificate that the bank had not issued such certificates. He also testified that the letter head also does not belong to the bank. He proved the seizure memo with respect to the documents as Ex.PW3/5, letter dated 27.6.2000 issued by the bank as Ex.PW3/6 and statement of account dated 29.6.2000 as Ex.PW3/7. This witness also proved the statement of account of M/s Akshika Exports as Ex.PW3/11. As per PW3, cheque Ex.PW3/12 for a sum of Rs.4.5 lacs was issued by M/s Akshika Exports, the payment of which was taken by Manjeet Singh; cheque Ex.PW3/13 for a sum of Rs.3 lacs was enchashed by Akash Malhotra; cheque Ex.PW3/14 for a sum of Rs.3 lacs was issued in favour of Manjeet Singh and cheques Ex.PW3/15 and Ex.PW3/16 for a sum Rs.3.25 lacs and Rs.2500/ CBI Vs. Manjeet Singh and others Page 17/64 respectively were issued and got encashed by Akash Malhotra. This witness was not crossexamined by any of the accused persons.
18. PW7 Rajesh Suri (approver) testified that A1 Manjeet Singh and one Jagmohan Singh wanted to open a travel agency. At that time he was working at Trivendram. They told him that he would be paid Rs.10,000/ per month to which he agreed and accepted the job. The travel agency was in the name of M/s Aroma Travel Agency. A1 Manjeet Singh introduced him to A4 Pramod Kathuria as Pramod Malhotra. He was told that brother of Pramod Malhotra namely Akash Malhotra is residing in Nairobi and as some payment is expected from Akash Malhotra, he should open an account in the name of Akash Malhotra in a bank and after the payments are received, the bank account would be closed. Thus, an account in the name of M/s Akshika Exports was opened in Bank of Punjab Limited, Rajouri Garden, New Delhi and he signed as Akash Malhotra. He proved the bank account as Ex.PW3/1; proprietorship letter as Ex.PW3/2; photocopy of ration card bearing his signature as Ex.PW7/1; letter on a stamp paper bearing his signatures as Ex.PW7/2; exporter importer code with his signatures and photograph as Ex.PW7/3; letter head of M/s Akshika Exports as Ex.PW6/1; letter addressed to Manager, SBI, Mumbai bearing his photograph as Ex.PW7/4 (He denied his signatures on it); account opening form bearing his photograph as CBI Vs. Manjeet Singh and others Page 18/64 Ex.PW7/5 (He denied his signatures on it but identified the signatures of Manjeet Singh at point C); letter on stamp paper bearing signatures of Manjeet Singh at point B as Ex.PW7/6; letter dated 10.09.1999, which is Ex.PW6/3, bearing signatures of Manjeet Singh. He identified his signatures on Ex.PW3/12 to Ex.PW3/17. PW7 testified that his signatures were obtained on various papers as well as on blank cheque book under the influence of A1 Manjeet Singh who was his brotherinlaw (saadu). At the time of opening of the account in the Bank of Punjab Ltd., Rajouri Garden, New Delhi, A4 Pramod Kathuria gave him Rs.10,000/ but the said amount was never withdrawn by him. The said amount was withdrawn by A1 Manjeet Singh and A2 Sarvjeet Singh @ Mikky. He identified A1 Manjeet Singh, A2 Sarabjeet Singh, A3 Kuldeep Singh, A4 Pramod Kathuria in the court. He further testified that A1, A2, A3 and Jagmohan Singh (brother of A1 Manjeet Singh) came to him for encashing a cheque which was not being honoured by Bank of Punjab Ltd., Rajouri Garden. He came to know from the bank that most of the amount had been withdrawn by these persons. He remained with the accused till May, 1999 and, thereafter, he got a job at Calcutta in Park Hotel as Laundry Manager. He proved his statement dated 21.01.2002 (ten pages) as Ex.PW7/11 and his statement u/s 164 Cr.PC recorded by Ld. MM as Ex.PW7/13.
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19. In his crossexamination PW7 admitted that Ex.PW3/13 to Ex.PW3/17 bear his signatures and on the back side of these cheques the signature of Manjeet Singh does not appear. He further admitted that Ex.PW3/15 to Ex.PW3/17 are the 'self' cheques and they have not been signed by A1 Manjeet Singh. PW7 further admitted in his crossexamination that bank account in the name of M/s Akshika Exports by using a fake name as 'Akash Malhotra' was opened by him on 03.10.98 and he also had several bank accounts in this fake name in the same year. As per PW7 he came to know in the year 1999 that accused made fraud with him when he was taken to the bank by the accused for encashment of cheques and earlier also the accused persons had withdrawn huge amount from the bank and this fact was told to him by the Bank Manager. He admitted not having made any complaint to the police or other authorities against the accused persons. He further admitted not having made any request to the Bank Manager for stopping the transaction in the bank account but stated that he had orally spoken to the Bank Manager. He categorically stated that the said fact was told to the IO in his statement u/s 161 Cr.PC. He was confronted with his statement Ex.PW7/D1 where the factum of his having to the Bank Manager not to allow anybody for withdrawing the amount from the bank account without confirming him is not mentioned. He was also confronted on other aspects also during his CBI Vs. Manjeet Singh and others Page 20/64 crossexamination.
20. PW9 U S Bisht along with Surender Kumar, Inspector was deputed for verification of the certificates issued by the Bank of Punjab Ltd., Rajouri Garden, New Delhi. As per this witness, Sh. Y M Bhardwaj confirmed that certificates Ex.PW3/3 and Ex.PW3/4 were not issued by him and the signature appearing at point B does not belong to him. Sh. Y M Bhardwaj wrote down his handwriting and put his signature at point A in his presence. Sh. Y M Bhardwaj further confirmed that the letter heads and seals of Asstt Vice President appended on said certificates also do not belong to them. This witness was not crossexamined by any of the accused persons.
21. PW11 Harbhajan Singh is the most crucial witness in this case who was working as driver with A4 Pramod Kathuria at the relevant time. He testified that in the year 19992000, he along with A1 Manjeet Singh, A3 Kuldeep Singh and A4 Pramod Kathuria went to ICD, TKD in the car of A4 Pramod Kathuria. After parking the car, A4 Pramod Kathuria handed over to him two packets and directed him to accompany A3 Kuldeep Singh. After sometime, A3 Kuldeep Singh came out from the office and asked him to hand over the two packets to A2 Sarabjeet Singh s/o Manjeet Singh and he handed over those packets to A2 Sarabjeet Singh. As per this witness, he did not see as to what those packets contained. This CBI Vs. Manjeet Singh and others Page 21/64 witness was declared hostile by the Ld.PP for the CBI as PW11 was resiling from his previous statement recorded u/s 164 Cr.PC. During his crossexamination by Ld. PP for CBI, PW11 admitted having made a statement u/s 164 Cr.PC (Ex.PW11/1) before the Ld.MM without any pressure or coercion. This witness was crossexamined at length by Ld.PP. However, even after crossexamination at length by Ld. PP, nothing incriminating has come in evidence against A2, A3 and A6.
22. PW17 Rajeev Kumar Sharma testified that he was working as Preventive Officer in Custom & Excise in Delhi on deputation from October, 1991 to May, 2004. Jagmohan Singh and A3 Kuldeep Singh were known to him. One day he received a call from Jagmohan Singh who told him that A3 Kuldeep Singh has some work relating to some export in ICD, TKD. As he had been transferred from Delhi, he told them to contact A6 Sarabjeet Singh, PA to the then Commissioner. He telephoned A6 Sarabjeet Singh in 19992000 that someone with his reference would come to him and asked A6 to guide him to the concerned person. A6 agreed to do the same. When a leading question with the permission of the court was put to this witness by Ld.PP, PW17 categorically denied that A3 had told him specifically about the duty drawback of one of his relative being held up at ICD, TKD and he wanted to know the reason for it. This witness CBI Vs. Manjeet Singh and others Page 22/64 was declared hostile by the prosecution and was allowed to be cross examined by Ld.PP. In his crossexamination by Ld. PP, this witness testified that he does not remember if he had stated in his statement to CBI "once in the end of 1999 (approximately) Mr. Kuldeep Singh phoned at my residence and asked me to help his relative who is in export business and whose duty drawback has been held up in ICD, TKD, Delhi. He wanted to know the reasons why his DBK had been held up and status of the same." In his crossexamination by the accused persons, PW17 admitted that he had been arrested in DRI investigation and was sent to jail. However, no criminal proceedings were lodged against him nor any criminal proceedings are pending against him.
23. PW 18 Nagesh Goenka was the person who was actually the owner of M/s. Akshika Exports, Udhyog Vihar, Gurgaon and they were in the business of manufacturing garments, doing export and drawing the duty drawback in Mumbai and Delhi. His company was having no concern with ICD, Tuglakabad. His company was having accounts in SBI, Nhava Sheva, Mumbai and PNB, Customs House, New Delhi where they used to receive the duty drawback from the government. The IEC code Number of his company i.e. M/s. Akshika Exports was 0390029181. PW 18 shifted from Mumbai to Delhi and changed the registered office to A97/1, Okhla Industrial Area, Phase CBI Vs. Manjeet Singh and others Page 23/64 II and the correspondence address of the company remained as Remedia House, Andheri, Mumbai for the purposes of banking, AEPC and the duty drawbacks. He further deposed that M/s. Gulab Das & Co. and M/s. S. Meghna & Co. were their clearing agents in Mumbai while Fritz Freights Forwarding, Clearship Freights forwarding, Expeditors Internationals and Union Transport were their clearing agents in Delhi. This witness denied the factum of knowing any person by the name of Akash Malhotra in any capacity whatsoever. After going through the documents pertaining to the fictitious M/s Akshika Exports, 302, Verdhman Chambers, Community Centre, opposite Sonia Cinema, Vikas Puri, New Delhi, he deposed that he was having no concern with this firm and he further clarified that his firm was not having any account in the Bank of Punjab Ltd., Rajouri Garden, New Delhi. This witness was not crossexamined by the accused persons.
24. PW27 S K Singhal deposed that he received a representation from M/s Akshika Exports for release of their duty drawback in respect of their export executed two/three years prior to their representation. He checked the files and found their duty drawback in BRC queue. Officers were deputed by him to verify the authenticity of the party and the certificates submitted by them in BRC queue. During verification, it was found that the party named above CBI Vs. Manjeet Singh and others Page 24/64 was non existent at the given address. The Bank of Punjab Ltd., Rajouri Garden, New Delhi also refused having issued any BRC to M/s Akshika Exports. The bank certificates submitted by the above named party were found fake and false. Thereafter, with the approval of Chief Commissioner, Customs, New Delhi, he lodged a complaint Ex.PW15/C to CBI for investigation. This witness was not cross examined by the accused persons.
25. PW32 Rekha Sangwan is the I.O. of the case. She testified that the present case was registered on 29.6.2001 vide FIR Ex.PW32/A and was marked to her for investigation. During investigation she collected the documents and recorded the statements of witnesses and after investigation, charge sheets dated 26.06.2002 and 08.10.2002 were filed by her in the court.
26. In her crossexamination PW32 admitted that A2, A3 and A6 were not named in the FIR and Sh. S C Singhal had conducted an inquiry before submitting his complaint to the CBI on the basis of which FIR was registered but the said inquiry report has not been made a part of this case. She denied the suggestion that the said inquiry report was not made part of this case in order to falsely implicate the accused persons. She admitted during her cross examination that in the FIR Ex.PW32/A, there are allegations against Mr. R C Meena, Superintendent, Customs and the said Mr. Meena CBI Vs. Manjeet Singh and others Page 25/64 deliberately submitted false report with regard to certificate Ex.PW3/3 (D9 and D10) in his department. When specifically asked by the Ld. Counsel for the accused as to why Mr. R C Meena was not made an accused in this case, PW32 testified that Mr. R C Meena told her that the said certificates were verified by him through telephonic call made to Bank of Punjab Ltd., Rajouri Garden, New Delhi and Mr. Y M Bhardwaj had informed him that the said certificates were issued by him. However, according to PW32, the said Y M Bhardwaj was not available for interrogation as he had left the job and had gone abroad. When PW32 was specifically asked to show documentary evidence from the charge sheet to the effect that she made efforts to contact Mr. Y M Bhardwaj during the investigation, PW32 answered the same in negative. She further admitted having not made any effort to know from the service record about the residential address of Sh. Y M Bhardwaj. After going through the record, PW32 admitted that Ex.PW15/B (D41) bears the endorsement of R C Meena at point 'X' as mentioned in the FIR. PW32 denied the suggestion that R C Meena was deliberately not made an accused in this case even after the receiving the CFSL report Ex.PW19/A from the expert or A2, A3 and A6 have been falsely implicated without any evidence in order to save the person named in the FIR. She further admitted that pardon was granted only to PW7 Rajesh Suri @ Akash Malhotra and not to PW11 CBI Vs. Manjeet Singh and others Page 26/64 Harbhajan Singh @ Judge.
VII. APPEARANCES :
27. I have heard Dr. Padmini Singh, Ld. PP for CBI and Sh. Mukesh Sharma, Ld. Counsel for A2 Sarabjeet Singh, A3 Kuldeep Singh and A6 Sarabjeet Singh S/o Sh. Rajender Singh. I have perused the case file.
VIII. CONTENTIONS OF LD. PUBLIC PROSECUTOR :
28. Ld. PP for CBI contended that the conspiracy amongst the accused persons stands proved in this case from the testimony of witnesses on record. It is evident from the deposition of PW11 Harbhajan Singh that he along with coaccused A2 Sarbjit Singh, A3 Kuldeep Singh, A1 Manjeet Singh (since deceased), and A4 Parmod Kathuria (proclaimed offender), visited the office of A6 Sarbjeet Singh, P.A to Commissioner, Central Excise and Custom, ICD, TKD, Delhi. It is not in dispute that PW11 had handed over two packets to A2 Sarbjit Singh in the said office as the said fact has not been challenged in his cross examination. Though PW11 has identified accused A2 Sarbjit Singh son of Manjeet Singh to whom he had delivered the said packets, the said fact is factually incorrect for the reason that A6 Sarbjeet Singh was the only person deputed as PA to commissioner and not A2 Sarbjit Singh S/o Manjeet Singh. The witness was declared hostile on this aspect. The Court can draw an CBI Vs. Manjeet Singh and others Page 27/64 inference that something was delivered in the form of packets.
29. Secondly, PW11 has stated that he knew A3 Kuldeep Singh and A1 Manjeet Singh but not their children. According to Ld. PP, if A2 Sarbjit Singh did not know A1 Manjeet Singh's Children, then on what basis he said that A2 Sarbjeet Singh, to whom he handed over the packets, was the son of Manjeet Singh. Further, the aspect of conspiracy stands proved for the reason that A2 Sarbjeet Singh has not cross examined PW11. It rather proves the fact that he was also present at the time of handing over illegal gratification of Rupees One Lac which was in two packets. So far as the contents of packets are concerned, PW11 has deposed that in the said packets "it could be money also". It is further contended that A2 Sarbjeet Singh upon being identified by PW11 even did not bother to cross examine the witness regarding the fact of his identification as a beneficiary. It is clear from the record that A6 is the only public servant in this case and not accused A2. There is no explanation in this regard from A2 Sarbjeet Singh. Any witness was also not examined by A2 Sarbjeet Singh in his defence to give plausible explanation as to why he accepted the packets containing money from PW11 Harbhajan Singh. A2, A3 and A6 have not given a single suggestion in the cross examination of PW11 regarding their presence in the office of Custom and Excise and also of handing over illegal gratification.
CBI Vs. Manjeet Singh and others Page 28/64 Further, A2 Sarabjeet Singh neither put any such question to PW11 in the cross examination nor denied the fact of having accepted the packets. It clearly indicates admission on the part of A2.
30. Thirdly, it is contended that as far A6 Sarbjeet Singh is concerned, in order to disprove the factum of receiving the said packets, he has examined his father Rajender Singh as DW1 in his defence which further goes to show that the FDR made by DW1 Rajender Singh was from the amount of such packets. Thus, in the totality of facts and circumstances, it is established that there was exchange of packets by PW11 in the office of ICD. It is, therefore, incumbent upon the A2 to explain before this Court as to in what capacity he was sitting in the office of A6, PA to commissioner. Even A6 has not alleged that A2 was working in his office. It all goes to show that both A2 and A6 were hand and glove to cause loss to Customs Department.
31. Next, as regards A3 Kuldeep Singh, Ld. PP contended that PW11 has specifically named him in his deposition as the person who accompanied PW11 to the office of A6 at ICD, TKD. Both A2 and A3 have not crossexamined PW11. The testimony of PW11 will be read against all the accused persons. Not only this, PW17 Rajeev Sharma has categorically stated that he had introduced A3 Kuldeep Singh to A6 Sarbjeet Singh, PA to commissioner, in order to guide A3 CBI Vs. Manjeet Singh and others Page 29/64 in some export work. PW17 has deposed that he telephoned A6 Sarbjeet Singh in this regard either in the end of 1999 or in the beginning of 2000. The testimonies of PW17 Rajeev Sharma and PW11 Harbhajan Singh have raised needle of suspicion not only against the accused A3 Kuldeep Singh but also against A6 Sarbjeet Singh and A2 Sarbjeet Singh which they have failed to explain in their statements under Section 313 Cr.P.C. Neither accused A3, nor A2 and A6 have put any question to the PW17 in cross examination, rather A6 has suggested that PW17 Rajeev Sharma has deposed in the court at the instance of I.O., Ms. Rekha Sanghwan. A6 has miserably failed to explain as to why PW 17 would depose against A6 at the instance of I.O. A6 did not cross examine PW 17 on his line of defence during the course of trial and, as such, he is liable to be convicted in the totality of circumstances.
32. Lastly, it is contended by Ld. PP for CBI that the statement of PW11 was recorded under section 164 Cr.P.C and the same is EX. PW 11/1. As per PW11, he had given this statement voluntarily and without any pressure. According to Ld. PP, the testimony of hostile witnesses is to be read in its entirety to bring out the truth of the case. A2 and A3 did not cross examine PW11 and even A6 did not challenge the statement of PW11 recorded under section 164 Cr.P.C. in his cross examination. In substance, the CBI Vs. Manjeet Singh and others Page 30/64 contention of Ld. PP is that Ex.PW11/1 is admissible being substantial piece of evidence. According to her, thus, the prosecution has established that A2, A3 and A6 were part of criminal conspiracy which was hatched for claiming the duty drawback from the office of ICD, TKD against fake and forged BRCs (Ex.PW3/3 and PW3/4) purportedly issued by Sh. Y.M Bhardwaj, Asst. Vice President, the Bank of Punjab Ltd., Rajouri Garden, New Delhi. However, the accused could not succeed in their plan to claim the duty drawback due to timely intervention of the Customs Department and, hence, it remained an attempt to cheat the government. Ld. PP contended that all the accused are liable to be convicted. In support of her contentions, she has relied upon following judgments:
(i) 'Munna Kumar Upadhyay Vs. State of Andhra Pradesh', 2012 Cri. L. J. 3068;
(ii) 'Ram Narayan Vs. CBI', 2003, Cri. L.J. 4801;
(iii) 'Sri Mithu Kalita Vs. State of Asam', 2006 Cri.L.J. 2570;
(iv) 'G L Chawla Vs. State', 2012 I AD (Cri.) (DHC) 33;
(v) 'Krishan Mochi Vs. State of Bihar', 2002 Cri.L.J. 2675 ;
(vi) 'C. Muniappan Vs. State of Tamil Nadu', AIR 2010 SC 3718.
IX. CONTENTIONS OF ACCUSED :
33. Ld. Counsel for the accused contended that the FIR was lodged on 29.06.2001 while the accused A2, A3 and A6 were arrested CBI Vs. Manjeet Singh and others Page 31/64 on 31.10.2001, 09.11.2001 and 09.11.2001 respectively. During the said period there was not an iota of evidence against them but they were falsely arrested by the IO in the present case and, consequently, A3 and A6 were granted bail on 17.11.2001.
34. Secondly, A2, A3 and A6 were not named in the FIR though the FIR was lodged by the complainant after making a detailed investigation. Even inquiry report by the customs department has not been made a part of the charge sheet. These accused were subsequently made accused by the CBI in order to save the real culprits.
35. Thirdly, there is no evidence on record that A6 in furtherance of criminal conspiracy with other coaccused abused his official position as a public servant and received a sum of Rs. 1 lac from A3 and A4 through PW11 Harbhajan Singh @ Judge (driver of A4 Pramod Kathuria) during the year 1999 in order to cause pecuniary gain to M/s Akshika Exports in claiming the duty drawback and, thus, attempted to cause loss to the Customs Department to the tune of Rs.15 lacs. PW11 Harbhajan Singh @ Judge and PW17 Rajiv Kumar Sharma have not supported the prosecution case. Sh. R C Meena has been cited as a witness in the list of witnesses by the prosecution but he has not been deliberately examined as he was one of the culprit in this case. Thus, from the perusal of evidence on CBI Vs. Manjeet Singh and others Page 32/64 record, there is nothing against A6 that he was using his influence for the purpose of getting the duty drawback claim of Rs.15 lacs passed. The CBI has filed two charge sheets against A6 by levelling false allegations without any oral/documentary evidence.
36. Fourthly, the CBI implicated A6 by using the FDR of Rs. 50,000/ (Ex.PW32/K) of his parents though DW1 has categorically stated that the amount for the said FDR was arranged from his funds and the funds of his wife.
37. Fifthly, no disclosure statements of A1 and A6 are on record. Jagmohan Singh neither has been made a witness nor an accused in this case. PW7 Rajesh Suri @ Akash Malhotra was the prime accused in this case but he has been made an approver without following the procedure u/s 306 Cr.PC. The real culprits in the present case were R C Meena, Y M Bhardwaj, PW7 Rajesh Suri @ Akash Malhotra and PW11 Harbhajan Singh @ Judge but the I.O. falsely implicated the present accused persons in order to save the real culprits.
38. Sixthly, there is nothing on record as to how I.O arrived at a figure of Rs.1 lac which was allegedly paid as illegal gratification to A6. According to Ld. Counsel, accused A2, A3 and A6 have been falsely implicated by the CBI without any evidence.
39. Next, Ld. Counsel contended that sanction to prosecute CBI Vs. Manjeet Singh and others Page 33/64 A6 was accorded in a mechanical manner by the competent authority and, as such, the sanction is nonest in law.
40. Lastly, Ld. Counsel contended that the statement Ex.PW11/1 of PW11 Harbhajan Singh @ Judge is only the statement of witness. It is not a substantial piece of evidence. In support of his contentions, Ld. Counsel has relied upon following judgments :
(i) 'State of Delhi v. Shri Ram Lohia', AIR 1960 SCC 490
(ii) 'Ram Kishan Singh v. Harmit Kaur', 1972 (3) SCC 280
(iii) 'George and others v. State of Kerala', 1998 (4) SCC 605
(iv) 'Shivappa v. State of Karnataka', 1995 (2) SCC 76
(v) 'Aloke Nath Dutta v. State of West Bengal', (2007) 12 SCC 230 X. EVALUATION OF EVIDENCE AND FINDINGS:
(A). SANCTION OF PROSECUTION:
41. A6 Sarabjeet Singh has raised serious objection with respect to the validity of sanction. It is contended that such sanction is nonest in law as the same has been granted without application of mind. As per Ld. PP for CBI, there is no illegality in grant of sanction and sanction is with proper application of mind.
42. Kaushal Srivastava has been examined by the prosecution as PW2. He has proved the sanction order as Ex.PW2/1. I have CBI Vs. Manjeet Singh and others Page 34/64 perused the entire record and in particular the crossexamination of PW2 Kaushal Srivastava. Undoubtedly, PW2 Kaushal Srivastava has admitted in his crossexamination that the specific details of the material placed before him by the CBI for granting the sanction has not been mentioned in Ex.PW2/1. However, that does not mean that the sanction was accorded in a mechanical manner. PW2 has categorically denied in his crossexamination that the sanction had been granted mechanically or that he was not competent to grant the sanction.
43. Needless to mention that sanction for prosecution of an accused under the P. C. Act is not a mere formality and it has to be accorded after complete satisfaction. Sanction order must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. Simultaneously, it has also to be kept in mind that this provision does not intend that a public servant who is alleged to be guilty should escape the consequences of his criminal act by raising technical plea about invalidity of the sanction. This section safeguards the innocent but does not shield the guilty.
44. Once the sanctioning authority has been produced in the Court unless there is anything brought on record which may vitiate the CBI Vs. Manjeet Singh and others Page 35/64 sanction order, the sanction order has to be taken as proved. In this regard reference be made to the case of 'R. Sundrajan v. State', 2006 (12) SCC 749. It is also not the requirement of law that sanction should be accorded by mentioning all necessary evidence and detailed facts. Sinequanon for grant of sanction is placement of complete material before sanctioning authority against the accused and it should be perceptibly clear from sanction order that sanctioning authority had taken into consideration those materials. There is nothing to show had there been any other material before PW2 Kaushal Srivastav, he would have taken a different view. Where it was discernibly apparent that the sanctioning authority before according sanction had looked into the evidence and material and had considered the circumstances and facts of case and only then had granted sanction, the plea that sanction order suffers from vice of nonapplication of mind cannot be accepted.
45. On careful perusal of the entire testimony, this court is of the opinion that A6 Sarabjeet Singh has not been able to show any substantial or compelling reason which may persuade this court to hold that sanction Ex. PW2/1 was invalid or nonest in law.
(B) M/S AKSHIKA EXPORTS - A FICTITIOUS FIRM :
46. A bank account was opened in the name of M/s. Akshika CBI Vs. Manjeet Singh and others Page 36/64 Exports showing PW 7 Rajesh Suri as a Proprietor by impersonating Akash Malhotra and the said illegal act was done at the instance of accused Manjeet Singh and Pramod Kathuria (PO). It is further evident from the deposition of PW7 Rajesh Suri that A1 Manjeet Singh (since deceased) and his son A2 Sarabjeet Singh @ Mikki withdrew the amount from the account of M/s. Akshika Exports at Bank of Punjab, Rajouri Garden, New Delhi. A1 Manjeet Singh, A2 Sarabjeet Singh, A3 Kuldeep Singh and Jagmohan Singh (brother of A1 Manjeet Singh) visited PW7 for encashing a cheque which was not being honoured by Bank of Punjab, Rajouri Garden, New Delhi. The documents proved by PW7 Rajesh Suri establishes that in fact a fictitious firm in the name of M/s. Akshika Exports was constituted and subsequently PW7 opened the bank account at Bank of Punjab, Rajouri Garden, New Delhi and issued various letters/cheques.
47. M/s. Akshika Exports was a fictitious firm and was not manufacturing anything is proved by the deposition of PW8 Subhash Jain who was working as commission agent. He deposed that A4 Pramod Kathuria used to purchase from him 800010000 pieces of ladies tops from different kabadiwalas. He also identified accused Pramod Kathuria (P.O.) in the Court.
48. The fact that M/s. Akshika Exports was a bogus company is further strengthened from the depositions of PW1 Bal Karan CBI Vs. Manjeet Singh and others Page 37/64 Khosa, PW13 Darshan Kumar and PW16 Sardar Kulwant Singh who have deposed that their premises were never rented out to M/s Akshika Exports/Akash Malhotra and somebody might have misused their addresses. The evidence of PW18 Nagesh Goenka shows that fictitious firm M/s. Akshika Exports was neither his agent nor sister concern of his company.
49. Thus, it is established that M/s Akshika Exports was a fictitious firm whose proprietor was PW7 Akash Malhotra.
(C) TWO TRANSACTIONS:
50. In this case, there are two transactions with respect to which the offences of forgery and cheating for claiming the duty drawback were committed. The first transaction is concerning five shipping bills bearing Nos.1188509, 1188511, 1188513, 1188515 & 1188516 all dated 22.07.1999 (D37 Ex. PW 26/A) with respect to which the accused had taken the duty drawback for the amounts of Rs. 5,80,000/ and Rs. 8 lakh. PW21 P T Prabhu has proved that demand draft Ex.PW21/A for a sum of Rs.5,80,000/ was issued in favour of Bank of Punjab Ltd. account M/s Akshika Exports. Similarly, PW10 has proved that another demand draft Ex.PW10/1 for a sum of Rs.8 lacs was prepared in favour of Bank of Punjab Ltd.
51. The second transaction vide shipping bills bearing Nos. 1036185, 1036186, 1036204 (Ex.PW20/A1 to PW 20/A3) was CBI Vs. Manjeet Singh and others Page 38/64 regarding export of goods to Nairobi. The fake BRCs (Ex.PW3/3 and Ex.PW3/4) were submitted in order to claim the duty drawback. These bills have been proved by PW20 Vinod Kumar Goel. The amount of duty drawback pertaining to these three shipping bills came to Rs. 15,09,354/. M/s. Akshika Exports is shown to have made the export in the year 1998 whereas they approached the Custom Department for duty drawback after lapse of one year. M/s. Akshika Exports could not get the duty drawback with respect to the aforesaid three shipping bills as their claim was put in BRC queue by PW5 Mahender Singh who was Joint Commissioner during the relevant period.
52. The forged BRCs (Ex.PW3/3 and Ex.PW3/4) purportedly issued by the Bank of Punjab, Rajouri Garden, New Delhi under the forged signature of Y.M. Bhardwaj, Assistant VicePresident were submitted. A representation for release of duty drawback was received from M/s. Akshika Exports, 302, Vardhman Chambers, Community Centre, opposite Sonia Cinema, Vikas Puri, New Delhi for their export executed in 1998. The said representation was received by PW 27 S.K. Singhal as it related to the goods exported in the year 1998 but no duty drawback claim was made till 2000. Therefore, he checked the file to find out the reason for delay in duty drawback and it was found that the duty drawback of M/s. Akshika Exports was put in BRC queue. PW27 deputed his officers to verify CBI Vs. Manjeet Singh and others Page 39/64 the authenticity of the party i.e. M/s. Akshika Exports and upon verification it was found that M/s. Akshika Exports was nonexistent firm at 302, Vardhman Chambers, Community Centre, Opposite Sonia Cinema, Vikas Puri, New Delhi. The Bank of Punjab, Rajouri Garden also refused having issued any BRCs to M/s. Akshika Exports and the said certificates were found to be false and fake. As per PW15 Manish Mohan who was Dy. Commissioner (duty drawback) during the relevant period in ICD, TKD, New Delhi has deposed that queries were raised by him on suspicion as BRC (Ex.PW15/A) was not in set format. PW9 U.S. Bisht, Inspector in ICD, TKD, Delhi was deputed to verify the BRCs issued by the Bank of Punjab Ltd., Rajouri Garden, New Delhi. He got confirmed from Shri Y.M. Bhardwaj, Assistant VicePresident of the Bank of Punjab Ltd., Rajouri Garden branch, Delhi that the said BRCs were fake. PW27 S K Singhal, therefore, lodged a complaint Ex.PW15/C with the CBI.
53. Though not referred to or relied upon, in view of the authoritative pronouncement of the full bench of our Delhi High Court in the case of 'Sapan Haldar Vs. State', 2012 VIII AD (Delhi) 533, the FSL report against the accused persons will have to be disregarded as the investigating officer had not taken handwriting samples through a court record. However, the FSL report to the extent that the signatures of Y M Bhardwaj were forged and fabricated is acceptable.
CBI Vs. Manjeet Singh and others Page 40/64 Thus, it has been proved by the prosecution that the signatures of Y M Bhardwaj on BRCs were forged.
54. It stands established from the evidence on record that drafts for the amounts of Rs.5.80 lacs and Rs.8 lacs were issued in favour of M/s Akshika Exports (a nonexistent firm). It has been established that an attempt was made to cause pecuniary loss to the government to the tune of Rs.15 lacs by claiming duty drawback on forged BRCs. However, the accused could not succeed in their attempt as regards the second transaction due to timely intervention of the Customs Department.
(D) SECTION 306 Cr.PC:
55. Ld. Counsel for the A6 Sarabjeet Singh contended that procedure required for granting pardon to an accused was not followed by the prosecution and, thus, the pardon was illegally granted. According to him PW7 Rajesh Suri was not in custody at the time when he was granted pardon and, therefore, pardon granted to him stands vitiated. On the other hand, Ld. PP for CBI contended that pardon was granted to PW7 Rajesh Suri after following the requisite procedure and, therefore, there is no illegality in the same. Section 306 (4) Cr.PC lays down as under :
"(4) Ever person accepting a tender of pardon made under subsection (1)(a) shall be examined as a witness CBI Vs. Manjeet Singh and others Page 41/64 in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any:
(b) shall, unless he is already on bail, be detained in custody until the termination of the trial."
(Emphasis supplied)
56. The contention of Ld. Counsel for the accused is misplaced. Pardon was granted to PW7 Rajesh Suri on 22.01.2002 by the Ld.MM after following the requisite procedure as required under the law. Ld. Counsel for the accused misconstrued the provisions of Section 306 Cr.PC. It is not at all necessary under Section 306 (4) Cr.PC that a person must be in custody at the time of his accepting a tender of pardon. Section 306 (4) (b) Cr.PC is clear in this regard as it lays down that every person accepting a tender of pardon shall, unless he is already on bail, be detained in custody until the termination of the trial. PW7 Rajesh Suri was granted bail by the court and he was on bail on 22.01.2002 when he was tendered pardon by the court. The contention for Ld. Counsel for the accused is devoid of any merit and the same is rejected.
(E). APPROVER'S EVIDENCE :
57. PW7 Rajesh Suri has deposed against A1 Manjeet Singh and PW4 Pramod Kathuria (P.O) to be the persons responsible for floating fictitious firm M/s Akshika Exports. The current account in SBI, Nhava Sheva, Mumbai was opened by A1 Manjeet Singh. PW7 CBI Vs. Manjeet Singh and others Page 42/64 Rajesh Suri has not uttered a single word against A6 Sarabjeet Singh. As regards A2 and A3, PW7 has deposed as under :
"I never withdrew any amount from the bank account. The same was withdrawn by accused Manjit Singh and Sarabjeet Singh @ Mikki. I never went to Bombay. I was appointed as Proprietor of M/s Akshika Exports by Manjit Singh. I identify Shri Manjit Singh, Sarabjeet Singh @ Mikki, Pramod Kathuria and Kuldeep Singh present in the court. Manjit Singh, Sarabjeet Singh @ Mikki, Kuldeep Singh and Jagmohan Singh another brother of Manjit Singh came to me for encashing a cheque which was not being honoured by bank of Punjab Rajori Garden."
(Emphasis supplied)
58. PW11 Harbhajan Singh, who turned hostile, has deposed that he along with A4 Pramod Kathuria (PO), A1 Manjeet Singh and A3 Kuldeep Singh went to ICD, TKD and on the asking of A3 Kuldeep Singh, he handed over the packets to A2 Sarabjeet Singh. The statement of PW11 Harbhajan Singh is no corroboration of the approver. It only means that A2 and A3 were present in ICD, TKD where two packets were handed over by A3 Kuldeep Singh to A2 Sarabjeet Singh. Thus, so far as A2 and A3 are concerned, this court is of the opinion that there is no corroboration of the approver's story.
59. In coming to the above conclusion this court is not unmindful of the provisions of Section 133 of the Indian Evidence Act which reads : "S. 133 : An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely CBI Vs. Manjeet Singh and others Page 43/64 because it proceeds upon the uncorroborated testimony of an accomplice".
60. It cannot be doubted that under that section a conviction based merely on the uncorroborated testimony of an accomplice may not be illegal, the courts nevertheless cannot lose sight of the rule of prudence and practice which is to be found in illustration (b) to Section 114 of the Indian Evidence Act which is as follows : "The court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars".
61. Both sections are part of one subject and have to be considered together. Though not referred to or relied upon, Apex Court in judgment - 'Bhiva Doulu Patil vs State of Maharashtra', AIR 1963 SC 599 has held as under : "The combined effect of ss. 133 and 114, illustration (b) may be stated as follows : According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars."
62. Though not referred to or relied upon, Delhi High Court Rules by R C Khera, Vth Edition 2008, Volume I (pages 774776), Chapter 14 deals with Approvers and Clause 5 relates to testimony of CBI Vs. Manjeet Singh and others Page 44/64 an approver. The same is reproduced herein below for reference :
"5.Testimony of an approver generally requires corroboration for conviction--The evidence of an approver being that of an accomplice is prima facie of a tainted character, and has therefore to be scrutinised with the utmost care and accepted with caution [cf. 2 P. R. 1917 (Cr.)]. As a matter of law, pure and simple, a conviction is not bad merely because it proceeds upon the uncorroborated testimony of an accomplice (vide Section 133 of the Indian Evidence Act). But it has now become almost a universal rule of practice not to base a conviction on the testimony of an accomplice unless it is corroborated in material particulars. As to the amount of corroboration which is necessary, no hard and fast rule can be laid down. It will depend upon various factors, such as the nature of the crime, the nature of the approver's evidence, the extent of his complicity and so forth. But as a rule corroboration is considered necessary not only in respect of the general story of the approver, but in respect of facts establishing the prisoner's identity and his participation in the crime."
(Emphasis supplied)
63. Thus, this court is of the considered opinion that A2 and A3 cannot be convicted on the uncorroborated testimony of PW7 Rajesh Suri alone.
(F). STATEMENT U/S 164 CR.PC OF PW11 HARBHAJAN SINGH @ JUDGE :
64. According to Ld. PP for the CBI though PW11 Harbhajan Singh turned hostile to the prosecution but he has admitted that he made the statement u/s 164 Cr.PC (Ex.PW11/1) voluntarily and CBI Vs. Manjeet Singh and others Page 45/64 without any pressure. As per law laid down by the Apex Court on hostile witnesses, the statement of such witnesses is to be read in its entirety to bring out the truth. Ld. PP contended that PW11 was not crossexamined by A2 Sarabjeet Singh, A3 Kuldeep Singh and A6 Sarabjeet Singh and, thus, they are liable to be convicted for committing the offences of conspiracy in view of Ex.PW11/1.
65. I do not agree. As per Section 30 of the Indian Evidence Act, the confessional statement of coaccused is admissible if the joint trial of all the accused has been ordered. Since, PW11 Harbhajan Singh @ Judge is not an accused, this court is of the opinion that the statement recorded u/s 164 Cr.PC (Ex.PW11/1) is only the statement of witness as per section 164 (5) Cr.PC and Ex.PW11/1 is not a substantial piece of evidence. Thus, the same is not reliable.
66. It is worthwhile to consider the following decisions relied upon by the learned counsel for the accused:
(i) 'Shri Ram Lohia' (supra) in which it is held that the statements recorded under Section 164 Cr.P.C. are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness.
(ii) 'Ram Kishan Singh' (supra) in which it is held that a statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a CBI Vs. Manjeet Singh and others Page 46/64 witness. It can be used to contradict a witness.
(iii) 'George' (supra) in para36 it was held that the statement of witness recorded under Section 164 Cr.P.C. cannot be used as substantive evidence and can be used only to contradict or corroborate the maker of the statement.
(iv) 'Shivappa' (supra) in which it was held that the confession was not voluntary and could not be acted upon. In the above citation, the confession was recorded from the accused. But here, as already stated, P.W.11 Harbhajan Singh @ Judge is not arrayed as an accused. Hence, the above citation is not applicable to the facts of the present case.
(v) 'Aloke Nath Dutta' (supra) in which it was held that confession of the coaccused was admissible evidence only under Section 30 of Evidence Act. But as already stated, P.W.11 Harbhajan Singh @ Judge is not arrayed as an accused. His statement has been recorded under Section 164(1) Cr.P.C. In such circumstances, the above citation is not applicable to the facts of the present case.
67. It was well settled proposition of law that the statement of witness recorded under Section 164 Cr.P.C. is not a substantive evidence and it can be used only for corroborating and contradicting the deponent. When P.W.11 was in witness box, he was treated as hostile witness and was confronted with his statement (Ex.PW11/1) u/s 164 Cr.PC. Hence, Ex.PW11/1 is not reliable. Even on perusal of CBI Vs. Manjeet Singh and others Page 47/64 Ex.PW11/1, the identity of PW6 is not established as only the name 'Sarabjeet Singh' is mentioned. It is not clear from the statement Ex.PW11/1 as to whether PW11 is referring to A2 or A6. It is the case of the prosecution itself that A6 was not known to PW11. PW11 has categorically stated that he knew only A1 Manjeet Singh and A3 Kuldeep Singh and not their children. When PW11 was crossexamined by Ld. PP, he deposed that he handed over the packets to A2 Sarabjeet Singh S/o Manjeet Singh. According to Ld. PP, if PW11 was not knowing the children of Manjeet Singh then on what basis he said that he handed over the packets to Sarabjeet Singh S/o Manjeet Singh. The contention of Ld. PP is without any merit. The parentage of A2 Sarabjeet Singh was written by the court to fix his identity as A2 and A6 were having same name i.e Sarabjeet Singh and the Ld.PP cannot derive any benefit out of it to contend that PW11 has deliberately made false statement to save the accused persons. The relevant portion of PW11 is reproduced hereunder :
"Today in the court the witness identified the said Sardarji as Sarabjeet Singh S/o Late Shri Manjit Singh to whom packets were handed over by me (sic him)."
(G). CONSPIRACY :
68. In such type of intricate matters, it is very hard to decipher as to when the conspiracy was hatched. Conspiracy, itself, CBI Vs. Manjeet Singh and others Page 48/64 has also to be inferred from various circumstances.
69. Recently our Delhi High Court (Double Bench) speaking through Hon'ble Mr. Justice Ravindra Bhat in judgment titled as 'State Vs. Mohammad Naushad', (Death Sentence Ref. No. 02/2010) decided on 22.11.2012 has observed as under :
259. Like most crimes, conspiracy requires an act (actus reus) and mens rea. The agreement constitutes the act, and the intention to achieve the unlawful objective of that agreement constitutes the required mental state. Section 120B criminalizes an agreement to commit a crime. All conspirators are liable for crimes committed in furtherance of the conspiracy by any member of the group, regardless of whether liability would be established by the law of complicity. The law punishes conduct which threatens to produce the harm, independent to conduct that has actually produced it. Unlike an attempt to commit a crime which merges with the completed offense, conspirators can be tried and punished for the conspiracy and the completed crime. Conspiracy is provided by the act of agreement.
260. Criminal conspiracy is a clandestine activity; people generally do not form illegal covenants openly. In the interests of security, a person may carry out his part of a conspiracy without even being aware of the identity of his co conspirators. Since an agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of cooperation between the accused. What people do is, of course, evidence of what lies in their minds. To convict a person of conspiracy, the prosecution must show that he agreed with others that together they would accomplish the unlawful object of the conspiracy. A major hurdle in such cases is the need to prove agreement; as it defines the CBI Vs. Manjeet Singh and others Page 49/64 potential liability of each accused.
...
264. In Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra , (1964) 2 SCR 378, the offence was described by the Supreme Court in the following manner:
"Before dealing with the individual cases, as some argument was made in regard to the nature of the evidence that should be adduced to sustain the case of conspiracy, it will be convenient to make at this stage some observations thereon. Section 120 A of the Indian Penal Code defines the offence of criminal conspiracy thus:
"When two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy."
The essence of conspiracy is, therefore, that there should be an agreement between persons to do one or other of the acts described in the section. The said agreement may be proved by direct evidence or may be inferred from acts and conduct of the parties. There is no difference between the mode of proof of the offence of conspiracy and that of any other offence: it can be established by direct evidence or by circumstantial evidence. But Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act done by one is admissible against the coconspirators. The said section reads:
"Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertain ed by any one of them, is a relevant fact as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
This section, as the opening words indicate, will come into CBI Vs. Manjeet Singh and others Page 50/64 play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, that is to say, there should be a prima facie evidence that a person was a party to the conspiracy before his acts can be used against his co conspirators. Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant against the others, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it. The evidentiary value of the said acts is limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of a period after such intention was entertained by any one of them."
70. In 'Kehar Singh Vs. State', AIR 1988 SC 1883, it has been observed as under:
"...Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communications. The evidence CBI Vs. Manjeet Singh and others Page 51/64 as to transmission of thoughts sharing the unlawful design may be sufficient."
71. Sec 120A of IPC defines criminal conspiracy as under : "When two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy." Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof".
72. It has to be scrutinized and enquired whether two or more persons are independently pursuing the same end or they have come together with common unlawful object. The former does not render them coconspirator but the latter does. It is, therefore, plain and manifest that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough.
73. No doubt, concurrence of coconspirator can be inferred by various facts. As per PW7 Rajesh Suri A1 Majeet singh, A2 CBI Vs. Manjeet Singh and others Page 52/64 Sarabjeet Singh, A3 Kuldeep Singh and Jagmohan Singh came to him for encashing a cheque which was not honoured by the Bank of Punjab Ltd., Rajouri Garden, New Delhi. It has not been disclosed by him as to when all of them visited him. The particulars of the cheque for which they came to him has also not been mentioned by PW7. In such circumstances, merely A2 and A3 along with A1 and Jagmohan having visited PW7 does not per se indicate any conspiracy. As per PW11, A3 Kuldeep Singh handed over the packets to A2 Sarabjeet Singh at ICD, TKD, New Delhi. PW17 Rajeev Kumar Sharma has only deposed that he had asked A6 Sarabjeet Singh to help A3 Kuldeep Singh for some work relating to exports. These facts, though established, are not sufficient to infer involvement of A2 Sarabjeet Singh, A3 Kuldeep Singh and A6 Sarabjeet Singh in the alleged offences. A2 and A3 cannot be labelled as coconspirators merely due to the fact that they happen to be the son and brother of A1 Manjeet Singh who has expired and who, according to the investigating agency, is one of the prime accused in the present case. There is no evidence depicting A2 and A3 to be the direct or indirect beneficiaries. They had neither caused any wrongful loss to the Customs Department in any manner by their act or conduct nor had they obtained any wrongful gain in any manner whatsoever. Conviction cannot be handed out to them merely on the basis of CBI Vs. Manjeet Singh and others Page 53/64 assumptions or inferences and prosecution has miserably failed to place on record reliable and trustworthy evidence of impeccable nature.
74. At this juncture, it is appropriate to consider the provisions of Sections 13 (1) (d), 13 (2) and 15 of P. C. Act.
"13.Criminal misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct, ........
(d) (ii) if he, by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
15. Punishment for attempt. Whoever attempts to commit an offence referred to in clause (c) or clause (d) of subsection (1) of section 13 shall be punishable with imprisonment for a teerm which may extend to three years and with fine.
75. There is not an iota of evidence to prove that A6 Sarabjeet Singh had demanded or agreed to accept or attempted to obtain gratification, other than legal remuneration or a motive or a reward for doing a thing. A6 Sarabjeet Singh has examined his father Rajender Singh as DW1 who has deposed that the FDR Ex.PW32/K for an amount of Rs.50,000/ is in the joint name and the same was arranged from his funds and the funds of his wife. In his cross CBI Vs. Manjeet Singh and others Page 54/64 examination, he denied the suggestion that the said FDR was from the bribe amount which was received by his son A6 Sarabjeet Singh. Though not referred to or relied upon, in judgment 'Munshi Prasad Vs. State of Bihar', 2001 (III) AD SC 477, it was held that the defence evidence has to be given due weightage.
76. Thus, it has not been established that A6 abused his position as a public servant and attempted to obtain illegal gratification for himself or for any other person.
(H). HOSTILE WITNESS:
77. Hostility of a witness is becoming a big menace. Courts are meant to discover truth and undertake journey in quest of justice but task becomes uphill if witnesses do not come up fearlessly and with absolute integrity. Courts have no option but to deliver judgment on the basis of legally admissible evidence. Legally admissible evidence is that which is recorded in the court, under oath, and not what investigating agency records during investigation. Naturally, courts have, on few occasions, come across cases which are ultimately found to be false and planted and, therefore, naturally, it will be highly unsafe, even otherwise, to act on such statements recorded during investigation. What matters is the deposition before the court. Nothing else. Witnesses are called 'eyes and ears of justice'. Witnesses turn CBI Vs. Manjeet Singh and others Page 55/64 hostile either due to threat or intimidation or lure of money coming from the side of offender.
78. As regards packets, PW11 Harbhajan Singh @ Judge in his statement Ex. PW32/DX2 under Section 161 Cr.P.C has stated:
"dekhne se hi mujhe laga tha ki unme rupaye hai".
In his statement Ex.PW11/1 under Section 164 Cr.P.C., he has stated:
"maine packets khol kar nahi dekhe lakin mere khayal hai ki usme noto ki gaddiya thi".
When he was examined in the court he testified:
"wherein there might be anything and it could be money also but I did not open it".
Thus, from the very beginning PW11 Harbhajan Singh @ Judge was not certain as to what those packets contained. He never specifically stated that those packets contained money.
79. As regards the identity of the person whom PW11 handed over those packets, he has stated in his statement u/s 161 Cr.PC:
"I can identify the Sardarji if he is produced before me".
In his statement u/s 164 Cr.PC he has named the said person (Sardarji) to be 'Sarabjeet Singh'. However, in his testimony before the court he identified the person to whom he handed over the packets as A2 Sarabjeet Singh. At the cost of repetition, there are two accused CBI Vs. Manjeet Singh and others Page 56/64 by the name 'Sarabjeet Singh' i.e A2 and A6. During investigation, the prosecution did not try to fix the identity of said Sarabjeet Singh by showing the photograph of A6 to PW11 Harbhajan Singh or by conducting the TIP of A6 Sarabjeet Singh. In such circumstances, PW11 Harbhajan Singh cannot even be prosecuted for perjury. It is well recognized principle of criminal jurisprudence that there cannot be any presumption in favour of the prosecution. There is only one presumption and that is a sine qua non of the criminal jurisprudence and it is with regard to the innocence of the accused. The onus to prove the guilt of the accused without any shadow of doubt is always on the prosecution. In the present case there is no evidence of acceptance of packets by A6. It is well established principle of law that the criminal cases are not decided on the basis of probabilities. They are unlike a civil case which is decided on the basis of preponderance of evidence. It is the settled principle of law that there is a long distance between 'may be true' and 'must be true' and the entire distance has to be covered by the prosecution on its own on the basis of legally admissible, cogent and coherent evidence. The prosecution in order to bring home the guilt of the accused is to prove its case beyond any reasonable doubt which they have failed to do so in the present case.
CBI Vs. Manjeet Singh and others Page 57/64 (XI). JUDGMENTS RELIED UPON BY LD. PP :
80. Ld. PP has relied upon the judgment 'G L Chawla' (supra) and 'Ram Narayan Poply' (supra) wherein the broad principles governing the law of conspiracy have been summarized.
81. The Apex Court in 'Krishna Mochi' (supra) has held that even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar.
82. In 'C Muniappan' (supra), the Apex Court has held that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.
83. Judgments 'Munna Kumar Upadhyay' (supra) and 'Smt. Mithu Kalita' (supra) are on examination of accused u/s 313 Cr.PC. In judgment 'Munna Kumar Upadhyay' (supra), Apex Court has held as under :
"Again, in its recent judgment in Manu Sao v. State of Bihar, [(2010) 12 SCC 310: (2012 AIR SCW 6138) (Para 8 CBI Vs. Manjeet Singh and others Page 58/64 of AIR SCW)], a Bench of this court to which one of us, Swatanter Kumar.J.. was a member, has reiterated the abovestated view as under:
...
13...The option lies with the accused to maintain silence coupled with simpliciter denial or in the alternative to explain his version and reasons for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to crossexamine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence."
84. The purpose of Section 313 Cr.PC is to provide an opportunity to accused to explain the circumstances appearing against him. A statement recorded u/s 313 Cr.PC is not a statement made on oath and is not, strictly speaking, evidence. However, such statements can be taken into consideration at the trial against the accused for the purpose of arriving at the guilt or otherwise of the accused. Accused can be convicted if he confesses his guilt in his examination u/s 313 Cr.PC. However, in the present case none of the accused have CBI Vs. Manjeet Singh and others Page 59/64 confessed their guilt in their examination u/s 313 Cr.PC. It is the settled law that accused cannot be convicted merely on the basis of their statements u/s 313 Cr.PC unless, of course, they admit their guilt. It is the prosecution who has to prove its case against the accused beyond reasonable doubt. Presumptions, howsoever strong, cannot take the place of proof. There is nothing in the statements u/s 313 Cr.PC of the accused on which they can be convicted in the present case.
85. It is needless to say that each and every case is to be decided on its own facts and circumstances. I have gone through the judgments cited by Ld. PP for the CBI but I do not consider the facts and circumstances on which those cases were decided in any way tally with the facts appearing in the case at hand.
(XII). DEFICIENCIES IN INVESTIGATION:
86. Before parting, I would like to say that investigation was lacking at some places. CBI is not certain whether Harbhajan Singh @ Judge was first made an accused and then a witness in this case. PW32 Rekha Sangwan, I.O. in her crossexamination testified that she had obtained the permission from the court to make Harbhajan Singh as approver in this case. She has exhibited the application in this regard as Ex.PW32/DX1. A perusal of the said application shows that a request was made for recording the statement u/s 164 Cr.PC of CBI Vs. Manjeet Singh and others Page 60/64 Harbhajan Singh. Thus, record shows that no application for making Harbhajan Singh as an approver in this case was moved by the CBI. She further testified in her crossexamination that disclosure statement Ex.PW32/DX of Harbhajan Singh was recorded by her on 26.12.2001. The disclosure statement is always recorded of an accused and not of a witness. The statement Ex.PW32/DX nowhere mentions that it is a disclosure statement. It appears to be a statement u/s 161 Cr.PC. Be that as it may, PW11 Harbhajan Singh was only made a witness in this case and thus, the question of recording his disclosure statement or granting pardon to him does not arise.
87. There is nothing on record on what basis CBI arrived at the figure of Rs. 1 lac which is alleged to be paid to A6 Sarabjeet Singh. In her crossexamination, PW32 Rekha Sangwan (I.O.) testified that it was so disclosed by A1 Manjeet Singh in his disclosure statement. However, no such disclosure statement in writing is on record.
88. PW32 Rekha Sangwan (I.O.) in her crossexamination has admitted that R.C. Meena, Superintendent Customs, deliberately submitted false report with regard to BRC Ex.PW3/3 in his department. She clarified that R C Meena was not made an accused as during investigation R C Meena disclosed that authenticity of BRC was verified by him on phone from Sh. Y M Bhardwaj, the then Vice CBI Vs. Manjeet Singh and others Page 61/64 President of the Bank of Punjab Ltd., Rajouri Garden, New Delhi. She could not show any documentary evidence for having made efforts to contact said Y M Bhardwaj. She admitted that she did not make efforts to know the residential address of Sh. Y M Bhardwaj from his service record. Though she denied the suggestion of deliberately not making R C Meena as an accused in this case but she admitted the endorsement Ex.PW15/B made by R C Meena which is reproduced hereunder :
"As desired, telephonically confirmed the authenticity of Bank Certificate issued in favour of M/s. Akshika Exports from Shri Y.M. Bhardwaj, Assistant vice President Bank of Punjab Ltd. on 15.11.99. Submitted for necessary action please.
Sd/ (R.C.Meena) 15.11.99"
89. PW11 Harbhajan Singh @ Judge has testified in his crossexamination that he had heard A4 Pramod Kathuria talking to Lovekesh Sharma, Customs Inspector, a number of times on phone relating to some payments. He has further testified that once he had gone to ICD, TKD and at that time A4 Pramod Kathuria had a long discussion with Lovekesh Sharma in his car and he was asked to get down from the vehicle. These facts also find mentioned in the statement Ex.PW32/DX 2 of Harbhajan Singh @ Judge. Lovekesh CBI Vs. Manjeet Singh and others Page 62/64 Sharma was made a prosecution witness but, surprisingly, he was dropped by the prosecution. In view of the allegations made by PW11 Harbhajan Singh @ Judge against Lovekesh Sharma, his non examination as a prosecution witness assumes significance.
90. The manner in which investigation has been carried out, as stated by I.O., leaves much to be desired.
(XIII). CONCLUSION :
91. This court is conscious of the decisions of the Apex Court titled as 'Visveswaran Vs. State', 2003 (6) SCC 73 and 'C. Muniappan' (supra) wherein it has been held that any discrepancy or irregularity in investigation need not necessarily lead to the rejection of the case of the prosecution. However, even after ignoring the above referred discrepancies/irregularities, this court is of the opinion that the prosecution has failed to prove its case against A2, A3 and A6 beyond reasonable doubt.
92. In view of foregoing discussion, A2, A3 and A6 are hereby acquitted of all the charges levelled against them in the present case. Their personal bonds are cancelled and respective sureties are discharged. A2, A3 and A6 are simultaneously directed to submit bonds under Section 437 (A) Cr.PC. Ahlmad is directed to page and CBI Vs. Manjeet Singh and others Page 63/64 bookmark the file so as to enable the digitisation of the entire record. File be consigned to record room.
Announced in the open court (PRAVEEN KUMAR)
on dated 20.12.2012. Special Judge, PC Act
CBI3, Rohini Courts,Delhi.
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