Delhi District Court
Cbi vs . (I) Smt. Rita Singh(A1) on 11 December, 2015
1
IN THE COURT OF SH. SANJEEV AGGARWAL SPECIAL JUDGE
CBI03 (PC ACT) DELHI
CC No.42/01 RC No. 1(E)/1998
CBI/SIG/ND
U/s : 120B r/w S 420/467/468 & 471
IPC and Section 13(2) r/w 13(1)(d) of
PC Act 1988.
CBI Vs. (i) Smt. Rita Singh(A1)
W/o Sh. J.K.Singh
Director Mideast(India) Ltd.,
Zamroodpur Community Centre,
R/o D3/A, Rita Villa, Satbari Farms, Delhi
(ii) Ms. Natasha Singh Sinha(A2)
W/o Sh. Gautam Sinha,
Director, Mideast(India) Ltd,
H1, Zamroodpur Community Centre,
Kailash Colony, New Delhi
R/o 706B, Alanksha Apartment,
Yari Road, Varsova, Mumbai
(iii) Sh. Y.V.Lutra(A3)
S/o Late Sh. Jugal Kishore Luthra,
formerly Astt. General Manager(Tech),
Industrial Finance Corporation of India Ltd.,
Nehru Place, New Delhi
R/o A3/68, Paschim Vihar, New Delhi(since
retd., from service)
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 1 of 254
2
Date of Institution : 19.07.2001
Judgment Reserved : 29.10.2015
Judgment Delivered : 07.12.2015
J U D G M E N T
1. The facts of the case in brief are that FIR No. RCSIG1998E0001 under Section 120B IPC r/w Sections 420, 467, 468, 471 and 477A IPC and substantive offences U/s 420/467/468/471 and 477A IPC was registered on 10.08.1998 on the basis of a source information against Sh. J.K.Singh Chairman, Mesco Group Companies, r/o D3A, Rita Villa, Satbari Farms, Delhi and others on the allegation(s) that during the period 199297 accused J.K.Singh entered into/ was party to criminal conspiracy with other coaccused persons and in pursuance thereof, they cheated various financial institutions, insurance companies, banks, shareholders and others to the tune of several crores of rupees in their own name as well as in the name of their group companies by various acts of forgery, falsification of records, using forged documents as genuine etc. There are various distinct allegations mentioned in the FIR and after conclusion of investigation chargesheet no. 1/2000 dated 14.07.2000 was RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 2 of 254 3 filed in the court of CMM, Delhi in respect of transaction relating to cheating M/s Ashok Leyland Finance Limited against accused Rita Singh & Ors.
2. Another instance relates to cheating M/s United Insurance Company Ltd., by accused persons (A1) to (A3) by fraudulently obtaining insurance claims. A thorough investigation was conducted into this allegation. Investigation in relation to this allegation revealed that the accused persons in conspiracy with each other, by fraudulent means obtained insurance claim of Rs. 6,98,37,599/. Investigation disclosed that offences under Section 120B IPC r/w S 420/467/468 and 471 IPC and Section 13(2) r/w S 13(1)(d) of P.C.Act, 1988 and substantive offences thereunder were found committed by accused public servant Y.V.Luthra(A3) alongwith accused accused Rita Singh(A1) and Natasha Singh Sinha(A2), and therefore Section 13(2) r/w Sec 13(1)(d) of Prevention of Corruption Act, 1988 has been added during investigation(s).
3. Investigation(s) disclosed that accused Rita Singh(A1) in her capacity as Director, Mideast (India) Ltd. Natasha Singh(A2) in her capacity as Director, Mideast (India) Ltd., and Y.V.Luthra(A3) while posted and functioning as RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 3 of 254 4 Manager(Technical), Industrial Finance Corporation of India Ltd.(IFCI), Delhi, Regional office, New Delhi entered into a criminal conspiracy during the year 1995 and 1996 and in pursuance of said criminal conspiracy committed various acts of cheating, forgery, using forged documents as genuine etc., and with dishonest intentions accused Rita Singh(A1) and Natasha Singh(A2) fraudulently obtained insurance claim of Rs. 6,98,37,599/ from M/s United India Insurance Company(UIICL) by submitting fake/forged 'No objection certificate' (NOC) issued/purportedly issued under the signatures of Sh. Y.V.Luthra(A3).
4. Investigation(s) further revealed that Sh. Luthra(A3) by abusing his official position as a public servant dishonestly and fraudulently issued NOC dated 01.03.96 for an interim payment of Rs. 3.75 crores by UIICL to M/s Mideast(India) Limited even though there were overdues to the tune of Rs. 58,92,174/ against this company on 01.03.96 and on the strength of this fake certificate, a sum of Rs. 3.60 crores was fraudulently obtained by M/s Mideast(India) Ltd., on 08.03.1996 in respect of insurance claim for fire in the factory premises at B12/A, Phase II, Noida on 17/ 18.06.1995.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 4 of 254
5
5. Investigation(s) further revealed that M/s Mideast(India) Ltd., had installed two shoe lines manufacturing units having installed capacity of 6,00,000 pairs at B12/A, Phase II, Noida. They had obtained a foreign currency loan of US $ 9,78,095 from IFCI, New Delhi. As per the condition of loan agreement, M/s Mideast(India) Ltd., was required to get the plant and machinery duly insured in favour of IFCI. Accordingly M/s Mideast(India) Ltd., had obtained insurance policy from UIICL, Divisional Office No. 7, Karol Bagh, New Delhi incorporating the interest of IFCI on plaint & machinery. However, the insurance policy obtained by M/s Mideast(India) Ltd., from M/s United India Insurance Company Ltd., covering the period in which fire took place did not mention the interest of IFCI even though IFCI had full interest of plant and machinery installed at the factory premises and this fact was brought on record by the Surveryors appointed by the Insurance company to assess loss in fire.
6. Investigation(s) further revealed that M/s Mideast India Ltd., had obtained the following policies from UIICL:
a) Fire Policy 'C' No. 040700/002/11/23/99/95 for total Rs.
4,03,00,000/ from 05.06.95 to 04.06.96 covering building for RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 5 of 254 6 Rs. 56,34,000/, Machinery & Accessories used for manufacturing leather goods for Rs. 3,28,10,000/ and FFF for Rs. 18,56,000/. This insurance was obtained in the name of Syndicate Bank, I.P. Estate, State Bank of Patiala, Nehru Place & State Bank of Hyderabad, as M'gees, A/c M/s Mideast India Ltd., H1, Zamrudpur Community Complex, Kailash Colony, New Delhi as M'gors. The policy was subject to agreed bank clause.
b) Fire policy 'C' No. 040700/002/13/100/95 for total Rs.
40,00,000/ from 05.06.95 to 04.06.96 covering Machinery & Accessories used for manufacturing leather goods. This insurance was obtained in the name of PNB Capital Services Ltd., as M'gees, A/c Mideast India Ltd., H1, Zamrudpur Community Complex, Kailash Colony, New Delhi as M'gors. The policy was subject to agreed bank clause.
c) Fire Policy 'C' No 040700/11/13/279/94 for total Rs.
1,00,00,000/ from 24.01.95 to 23.01.96 covering "All kinds of leather, leather goods, leather shoes/garments, leather accessories with their raw materials, finished, unfinished, semifinished goods, stockinprocess.". This insurance was obtained in the name of Syndicate Bank, State Bank of Patiala RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 6 of 254 7 & State Bank of Hyderabad, as M'gees, A/c M/s Mideast India Ltd., H1, Zamrudpur Community Complex, Kailash Colony, New Delhi as M'gors. The policy was subject to agreed bank clause.
d) Fire Policy 'C' No. 04700/11/23/291/94 for total Rs.
3,50,00,000/ from 06.02.95 to 05.02.95 covering "All kinds of leather, leather goods, leather shoes/garments, leather accessories with their raw materials, finished, unfinished, semi finished goods, stock in process." This insurance was obtained in the name of Syndicate Bank, State Bank of Patiala & State Bank of Hyderabad, as M'gees, A/c M/s Mideast India Ltd., H1, Zamrudpur Community Complex, Kailash Colony, New Delhi as M'gors. The policy was subject to agreed bank clause.
7. In addition to the above policies with M/s UIICL, another policy had been obtained on stocks from Oriental Insurance Co. Ltd., Divl. Office9, New Delhi
8. Investigation(s) further revealed that the factory premises of Mideast(India) Ltd., caught fire on 17/18.06.95 in which plant & machinery, stocks and building are said to have suffered heavy damage. The intimation of fire was given to UIICL as RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 7 of 254 8 also to Oriental Insurance Company Limited(OICL) who had insured the factory premises for loss against fire. As far as the plant and machinery are concerned, the insurance cover was obtained from UIICL and the stocks had been insured by UIICL and OICL. In order to assess loss in fire, UIICL appointed M/s Mehta and Padamsay Surveyor Pvt. Ltd., 7 Jantar Mantar Road, New Delhi and M/s S. Sunderraman & Associates, Chennai as Joint Surveyors. Even though the fire insurance policy did not mention the interest of IFCI on plant and machinery installed at the premises of Mideast India Ltd., this was brought on record by the Surveyors at the time of assessment of loss.
9. The said surveyors submitted an interim report dated 11.01.1996 based on which the Divisional Office No. 7 of UIICL, New Delhi processed the claim for on account payment of Rs. 3.75 crores to the insured. This was examined in the Regional office and the proposal was forwarded to Head Office of UIICL at Chennai vide letter dated 15.02.96. The matter was thereafter examined in the Head office and the board in is meeting dated 28.02.96 approved for on account payment of Rs. 3.75 crores to the insured. This approval was conveyed to RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 8 of 254 9 DRO, UIICL, Delhi vide letter dated 01.03.96 signed by Sh. V.Sundaram the then Dy. Manager, Fire Technical Deptt., Chennai. It was specifically indicated in the approval letter that since the policy was incorporated with an agreed bank clause, DRO was requested to get the No Objection Certificate from all the bankers before release of payment to the insured.
10.Investigation(s) has also revealed that in order to obtain insurance claim, accused Rita Singh(A1) in her capacity as Director, Mideast India Ltd., accused Natasha Singh(A2) in her capacity as Director approached IFCI and in view of the aforesaid necessity for obtaining NOC from Financial institutions/Banks, Sh. S.S.Batra, Company Secretary, MIL vide letter dated 01.03.96 requested IFCI, New Delhi for issuing a NOC for releasing a sum of Rs. 3.75 crores as interim on account payment. Sh. B.B.Huria the then Chief General Manager, IFCI recorded a note on this letter for issuing NOC subject to payment of overdues aggregating to Rs. 58 lacs. Despite the fact that there were overdues to the tune of Rs. 58,92,197/ against Mideast(India) Ltd., accused Y.V.Luthra dishonestly and fraudulently issued NOC dated 01.03.96 for release of Rs. 3.75 crores by the insurance RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 9 of 254 10 company in respect of property at B12/A, Phase II, Noida and he on 02.03.86 recorded a note on the office copy of the letter head dated 01.03.96 that NOC was issued as there were no overdues as confirmed from Accounts Department. This NOC dated 01.03.96 was handed over to the representative of Mideast(India) Ltd., which was presented to Delhi Regional Office of UIICL and on the strength of the said false NOC, the Insurance Company's Head Office at Chennai released a payment of Rs. 3.60 crores to Mideast(India) Ltd. A sum of Rs. 15 lacs was retained out of the approved amount of Rs. 3.75 crores towards payment to PNB Capital Finance.
11.Investigation(s) further revealed that on the basis of second Joint Interim Survey Report dated 11.04.96 submitted by the said Surveyors, a further on account payment of Rs. 2 crores to the insured was recommended by Divisional office No. 7 and Regional office, Delhi to Head Office, Chennai of UIICL which was examined in the Fire Technical Deptt., HO, UIICL and submitted to the board in its meeting held on 30.04.96. The board approved second on account payment of Rs. 2 crores which was communicated to DRO, Delhi vide letter dated 03.05.96 under the signature of Shri V. Sundram, RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 10 of 254 11 Manager, indicating the requirement of obtaining No Objection Certificate from financial institution. In a letter dated 06.05.96 signed by Sh. A.K.Guha, Manager, Accounts Department and Sh. R.Ramalingam, the then AGM, R.O., Delhi to H.O., Accounts, UIICL, Chennai, it was confirmed that letter dated 03.05.96 had been received from IFCI in respect of their No Objection for release of cheque in favour of Mideast(India) Ltd. On receipt of this communication from DRO, Delhi the payment was released vide cheque no. 742159 dated 07.05.96 for Rs. 2 Crores to Mideast(India) Ltd.
12.On receipt of final survey report dated 21.05.96 the Divisional Office No. 7, Delhi recommended for final balance payment of Rs. 2,21,55,281/, out of which a sum of Rs. 56,17,682/ was to be retained on account of modvat adjustments and pending demolition of building. The proposal was forwarded by DRO, Delhi to H.O., Chennai where it was examined in the Fire Technical Department and a proposal for payment of balance amount of Rs. 2,21,55,281/ after retaining Rs. 83,17,682/ towards modvat credit and demolition of building was submitted for consideration by the board on 10.06.96. The proposal was approved and the approval of the board was RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 11 of 254 12 conveyed to DRO, Delhi vide letter dated 12.06.96 signed by Sh. S.Ramabhadhra, AGM reiterating the need for obtaining No Objection Certificate from financial institutions. On receipt of communication from DRO, Delhi, for having received No Objection Certificate from the concerned institutions, H.O Account Deptt., released payment to Mideast(India) Limited vide cheque No. 742198 dated 18.06.96 for Rs. 1,38,37,599/.
13.Investigation(s) further revealed that in pursuance of criminal conspiracy NOCs dated 03.05.96 and 13.06.96 were fabricated by accused Natasha Singh(A2) and accused Rita Singh(A1) as there was necessity for submitting the same to the Insurance Company for getting the claims and these were never issued by IFCI. In view of the aforesaid necessity for NOC, these were fabricated, attested by accused Rita Singh(A1) and Natasha Singh(A2) and thereafter faxed from telephone number 6215170 of Mesco Airlines Ltd., H1 Zamroodpur Community Centre, New Delhi to the Regional Office of UIICL, New Delhi. Even the certificate dated 01.03.96 issued by IFCI giving No Objection for release of payment of Rs. 3.75 crores to Mideast(India) Limited had been dishonestly and fraudulently issued by accused Y.V.Luthra, the then RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 12 of 254 13 Manager, IFCI, New Delhi in conspiracy with other accused persons as there were overdues against this company.
14.Investigation(s) further revealed that during the course of searches by Income Tax Department at the premises of Mesco Group Companies, one file was seized which contained papers showing the manner in which forged NOCs were prepared. Sh. Ravi Thapa, formerly Company Secretary, Mesco Airlines Ltd., categorically stated about the manner in which forged NOCs were prepared. Sh. Ravi Thapa, formerly Company Secretary, Mesco Airlines Ltd., categorically stated about the manner in which accused Natasha Singh asked him to write the exact figure of amount to be mentioned in NOC dated 13.06.96 and the figure of Rs. 1,38,37,599/ was written by him on the rough NOC so prepared. It is also established from this file that accused Natasha Singh was instrumental in the forgery for the purpose of cheating. The NOC dated 03.05.96 duly attested by her was forged and faxed to DRO, Delhi as if IFCI had given the certificate having No Objection to the release of payment of Rs. 2 crores. Similarly accused Natasha Singh prepared a forged NOC dated 13.06.96, which was attested by accused Rita Singh and again faxed to DRO, RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 13 of 254 14 Delhi from the above mentioned telephone number of Mesco Airline Limited. The telephone number of Mesco Airlines Limited are appearing on the faxed copy of these NOCs available in the files of Insurance office. Sh. Ravi Thapa who faxed these papers to the Insurance office testified having sent these and also his markings "kind attention: Ms. Anju Chawla" on the said NOC. During investigation witnesses testified to have received the certificate by fax and submitted the same to the insurance office.
15.Investigation further revealed that IFCI did not issue NOCs dated 03.05.96 and 13.06.96 and that these were forged by accused Natasha Singh attested by her and by her mother Rita Singh which were faxed to the insurance office in deceitful manner to fraudulently obtain further claims of Rs. 2 crores and Rs. 1,38,37,599/ from UIICL knowing fully well that there were overdues in their accounts with IFCI who would not have given NOC to release the said payments.
16.The aforesaid facts clearly establish that the accused persons Rita Singh(A1), Natasha Singh Sinha(A2), and Y.V.Luthra(A3) were parties to a criminal conspiracy and in RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 14 of 254 15 pursuance thereof they obtained fake NOC dated 01.03.96, prepared forged NOCs dated 03.05.96 and 13.06.96, attested the same, which were presented to UIICL in deceitful manner and thereby cheated UIICL by obtaining payment of Rs. 6,98,37,599/. Accused Y.V.Luthra while posted and functioning as Manager(Tech), IFCI, DRO, New Delhi committed various acts of omission and commission by abuse of his official position as a public servant dishonestly as well as in conspiracy with other accused persons, issued fake NOC dated 01.03.96, despite the fact that there were overdues of Rs. 58,92,197/ against this firm on this date. The role of Sh. J.K.Singh, who was named accused in FIR, in making forged documents had not come to surface as far as these allegations are concerned and, therefore, he has not been sent up for trial for this instance on account of lack of evidence.
17.The above facts and evidence established prima facie commission of offences U/s 120B IPC r/w Sections 420/467/468 & 471 IPC, 13(2) r/w 13(1)(d) of P.C Act, 1988 against accused Rita Singh(A1), Natasha Singh Sinha(A2) and Y.V.Luthra(A3) and substantive offences thereunder.
18.Accused Rita Singh(A1) was arrested on 01.07.2000, RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 15 of 254 16 accused Natasha Singh(A2) surrendered in the court of CMM, Delhi on 19.09.2000 and accused Y.V.Luthra(A3) was not arrested during investigation. Accused Rita Singh(A1) and Natasha Singh(A2) were presently on bail in relation to the allegation of cheating M/s Ashok Leyland Finance Ltd., to the tune of Rs. 1.68 crores for which a charge sheet was filed in the court of CMM, Tis Hazari, Delhi on 14.07.2000.
19.As accused Y.V.Luthra has retired from the service of IFCI and so the sanction for prosecution was not required.
20.Vide detailed order dated 05.05.2003, charge U/s 120B IPC r/w S 420/467/468/471 IPC and Section 13(2) r/w Section 13(1)(d) of PC Act 1988 was made out against A1 to A3. The substantive charge(s) were also framed against A1 and A2 for offence U/s 420/467/468/471 IPC r/w S 120B IPC. The additional charge for offence U/s 13(2) r/w Section 13(1)(d) of PC Act 1988 was also made out against A3. Formal charges were framed against the accused persons on 05.05.2003 to which all of them pleaded not guilty and claimed trial.
21.Thereafter prosecution has examined 52 witnesses in support of their case
22.PW1 is Sh. P.S.Chauhdary, the witness from MTNL , Nehru RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 16 of 254 17 Place, Delhi. He has proved that one application for new telephone connection was moved under Tatkal category by Mesco Airlines Ltd, H1, Zamrudpur Delhi. The said application is ExPW1/A. The said application was received on 09.01.95 which was given alongwith the Articles of Association and the original application was accompanied by power of attorney Ex PW1/C. He also deposed that the telephone was booked vide registration dated 09.01.95 ExPW1/E. The orders were issued vide D.B.No.116458089 dated 12.01.95. The telephone no. 6215170 was allotted vide endorsement ExPW1/F. He also deposed that application was received with regard to Mesco Airlines Ltd, H1, Zamrudpur, Delhi.
23.PW2 is Sh. Brij Bhushan Huria, who was working as General Manager in the Regional office, IFCI. He has deposed that letter ExPW2/A was received from Mideast(India) Ltd on 01.03.96. He had dealt with the said letter. Thereafter he marked this letter to Mr. Shinghari, D.G.M. Vide endorsement at point B Mr. Shingari further marked this letter to Y.V.Luthra, Manager. The endorsement at point C was in the handwriting and signatures of Mr. Y.V.Luthra. He further deposed that NOC ExPW2//B was issued by Sh. Y.V.Luthra and he RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 17 of 254 18 identified his signatures at point A. He further deposed that letter ExPW2/C was received in their office and he marked it to D.G.M vide endorsement at point A to Mr. R.L.Shinghari.
24.PW3 is Sh. Ganesh Chand. He is also the witness from IFCI.
He has deposed that during July 1995 to 1996, he was posted as D.G.M(Accounts) in the Delhi Regional Office of IFCI. He deposed that on receipt of an application from the party for NOC, the project department used to enquire in writing from the Accounts Deptt., about the dues of the party. The Accounts Department used to supply application about the dues from the parties if any, and sent it to the project department who took further action. He further deposed that there was no provision of making oral confirmation relating to overdues. After seeing the letter ExPW2/A he deposed that same was never marked to Accounts Department. If any query was received about overdues, they used to verify from their ledgers and used to give reply in writing. He further deposed that the letter ExPW3/A which was marked to Accounts Department for ascertaining the overdues. Report was given by Dy. Manager(Accounts) Mrs. Muttu Laxmi whose signatures he identified. After seeing another letter ExPW3/B RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 18 of 254 19 he deposed that same was marked to Accounts Department and the report has been made by Mr. R.K.Banerjee of IFCI and after seeing the application ExPW3/C he deposed that it was marked to the Accounts Department and the report was made by the Accounts Department. He has further proved various documents which are ExPW3/D to S.
25.PW4 is Mr. Prassanjit Kar. He is also the witness from IFCI.
He has deposed that he was posted in IFCI Delhi from 1999 to 2001. Letter ExPW4/A was sent by him to CBI alongwith annexures, the same bears his signatures at point A. He also deposed that letter ExPW4/B was also sent by him to the CBI alongwith annexures. The letter ExPW3/I also bears his signatures at point A.
26.PW5 is Sh. Sanjay Sethi. He is the witness from Vigilance Department, United India Assurance Company. He has deposed that he was working in the said company from September 1998 to June 2001. Vide seizure memo ExPW5/A which bears his signatures at point A. He handed over certain documents to the CBI officer.
27. PW6 is Sh. R.K.Sethi, another witness from United India Assurance Company. He has deposed that during the year RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 19 of 254 20 1990 to September 1995, he was working as Divisional Manager in the said company at Karol Bagh, New Delhi. On 19.06.95 he received intimation of fire from M/s Mideast India Ltd on telephone. On receipt of this intimation he informed his controlling Regional office for deputation of surveyor as he was informed that the loss was very heavy. This in keeping with their procedure to inform the higher office when the loss was beyond the certain limit. Surveyors M/s Mehta and Padamsey surveyors Pvt. Ltd., were appointed by regional office. Since the loss was heavy head office also appointed M/s S.Sunderaman & Associates, Madras as Surveyors to assess the loss jointly. At the time of loss four insurance policies of M/s Mideast India Ltd., were susbsisting. He has proved photostate copy of insurance policy(D21) which are ExPW6/A to ExPW6/C, and he stated that the original policies were issued to the party. He also deposed that if there was any interest of financial institution by way of their policy claim the financial institution gets a paramount interest on the claim proceeds and if the client requires that the payment to be made directly to him, the insurance company insist on a specific NOC from such financial institution before releasing RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 20 of 254 21 the payment in favour of the client.
28.PW7 is Sh. Pramod Kumar another witness from United India Insurance Company Ltd., who has deposed that he was working as Development Officer in the said company. At the relevant time as Development Officer his duties were to contact the clients and procure the business for insurance company. He contacted Mr. R.K.Gupta, who was working as AGM in Mesco Group, namely Mideast India Ltd., in the year 1993. Mr. R.K.Gupta sent him to Mr. Yogesh for fire, marine, motor insurance policies for M/s Mideast India Ltd(hereinafter referred to as Mideast). After he contacted Mr. Yogesh he took various insurance policies M/s Mideast India Ltd., from him. Mr. Yogesh handed over cheques towards premium of said insurance policies and on the basis of said cheques he got the insurance policies issued in the name of M/s Mideast India Ltd., and he had seen the policy (D3 to D7), the attested copy of insurance policy(D3/1) bears the signatures of Divisional Manager. The attested copy of insurance policy is ExPW7/A, also bears the signatures of said Divisional Manager, the attested copy of insurance policy(D4/1) also RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 21 of 254 22 bears the signatures of Assistant Divisional Manager. The attested copy of insurance policy is ExPW7/B also bears the signatures at point A of competent officer. Attested copy of insurance policies ExPW7/C to E also bears the signatures of competent officers.
29.He also deposed that he procured business of other sister concern of Mesco Group and after seeing the fire policy Ex PW6/D he proved the same and same bears the signature of competent officer. He also deposed that on 10.06.98 he went to Bangalore. He was informed by Sh. R.S.Sethi that there was a loss in Mideast India Ltd., due to fire and in case he had any document the same should be submitted and he should immediately reach to the office at Delhi. First of all he contacted Mr. R.K.Sethi, thereafter contacted Mr. Yogesh for Mideast who told him that they had suffered a loss of Rs. 10 crores.
30.PW8 is Smt. Sneh Prabha. She is also the witness from IFCI, Delhi. She has also deposed that she was working in accounts department of IFCI Regional office at the relevant time as Manager of the company. She has explained the procedure for issuance of NOC. She deposed that first of all the party was RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 22 of 254 23 required to apply to project department for issuance of NOC, project department used to write to account department to report regarding dues of the said party. The accounts department i.e she herself used to verify from rupee loan, FCL, financial services etc., and thereafter she used to give report and sent back to the projects department. Oral confirmation regarding dues was not permissible and she never confirmed the dues position orally. She further deposed that there was only one file for dealing with NOC in respect of party which is D53 including M/s Mideast India Ltd. All the correspondence from 1995 to 1998 containing pages 1 to 91 were in the said file. In case NOC was issued office copy used to be kept in the file. After seeing the file D53 she stated that there was no other NOC except NOC ExPW2/B issued to Mideast India Ltd.
31. PW9 is Sh. B.K.Mishra, the witness from United India Insurance Company, who is the formal witness. He has deposed that two files were sent through letter dated 14.09.98 to the Superintendent of Police Sh. Umesh, which is Ex PW9/A which also bears his signatures. Two files were sent, one containing 160 sheets and the other containing 324 RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 23 of 254 24 sheets and the other containing 324 sheets. These two files pertains to M/s Mideast India Ltd., and these two files contain the corresponding claim files of fire claim.
32. PW10 is Sh. P.V.Narsimha Rao. He is the witness from Corporation Bank, Chennai. He has deposed that vide letter dated 25.02.2000, he sent the documents mentioned in the letter to Mr. Vijay Kumar, the said letter is ExPW10/A. Vide this letter the documents i.e two cheques ExPW10/B and Ex PW10/C drawn on their branch amounting to Rs. 2 crores in favour fo M/s Mid East India Ltd., and amounting to Rs. 1,38,37,599/ drawn on their bank in favour of said firm were sent to DSP of CBI. The said cheques were cleared on presentation.
33.PW11 is Sh. D.Roy Choudhary, Commissioner of Income Tax(Appeal). He has deposed that during March 1997 he was working in Income Tax Department(Investigation Wing) as Assistant Director Investigation Unit III1 Delhi. In continuation of the earlier search in February 1997, he conducted the search alongwith Mr. Sanjit Singh and Rakesh Gupta both ADIT alongwith Inspectors at Mideast India Ltd, Mesco Tower, Zamrudpur Community Centre, Kailash Colony, Delhi. In RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 24 of 254 25 March 1997, which was in continuation of the search conducted in the same case in February 1997. He further deposed that the inventory of the documents and other articles seized during the search was prepared on the spot. He also prepared panchnama which is ExPW11/1 which bears his signatures at point B. the panchnama has also been signed by Ms. Natasha Singh, Director of Mideast India Ltd., at Mark A dated 07.03.97. Annexure III is the inventory of bank accounts prepared on the spot, which bears his signatures at point A, same is ExPW11/2. Annexure II is inventory relating to cash found during the course of search, but was not seized which is ExPW11/3, which bears the signatures of Mr. Rakesh Gupta at point A & B, who was another authorized officer for the search. Annexure AAA is related to the inventory of books of accounts and documents found and seized from the said premises which is ExPW11/4, which bears his signatures on all the pages and party and two witnesses. The documents compiled in D27 pages 1 to 25 were found and seized and the seal was affixed on these documents. The said documents are collectively exhibited as ExPW11/5.
34. PW12 is Sh. S.S.Krishnan, he is the witness from M/s Mehta RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 25 of 254 26 & Padam Sey Surveyors. Infact he stated that he was the director of Surveyor firm. He also deposed that he conducted survey on behalf of his company with S.Sunder Raman of M/s Sunderraman & Associates, Chennai. United India Insurance Company directed him and S. Sunderraman to conduct the th survey in respect of fire claim on 1718 May,1995 in the factory premises at B 12 A Phase II, Noida of Mesco Group company. After conducting the survey he submitted the Joint Interim Survey Report dated 11.01.1996 containing pages 1 to 22 alongwith annexures which is ExPW12/A. The said report was bearing his signatures at point A on each page and the said report was also having signatures of S Sunderraman at point B who was the joint surveyor with him. He also deposed that he submitted Joint Final Survey Report dated 21.05.96 alongwith S Sunderraman which bears his signatures on Ex PW12/B and signatures of S Sunderraman at point B. During survey they also got assistance from R Sri Vatsan, Chartered Accountant from Chennai and other colleagues in his office. Annexure IV alongwith his report ExPW12/A was collected during his survey from the insured which is ExPW12/C.
35. PW13 is Mr. R Chanderasekharan another witness from RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 26 of 254 27 United India Insurance Company Chennai. He deposed that note dated 28.10.96 was initiated by Sh. G Ashokan, Asst. Manager in respect of fire claim on 17/1806.1996 of Mid East India Ltd. The said note is ExPW13/A. On this note his signatures are at point B and that of other officers whom he identified. He also deposed this note was initiated in respect of release of payment of Rs. 27 lacs for the loss of factory in fire at Mid East India Ltd. Vide letter dated 04.11.99 ExPW13/B. Vide this letter they advised the Regional office to get the NOC from the Financial Institutions. Similarly, note dated 03.02.97 was initiated by Sh. G.Ashokan which bears his signatures at point A on ExPW13/C and also bears the signatures of competent officer. Similarly he deposed vide letter dated 10.02.97 ExPW13/D Regional office was advised to get the NOC from the Financial Institution and the intimation for passing the claim of Rs. 25,39,051/.
36. PW14 is Mr. M Shivaraman. He is also the witness from United Insurance Company, Head office, Chennai. He deposed that at the relevant time in the year 199596 he was posted as Company Secretary, Deputy Manager in Chairman Secretariat at Chennai United India Insurance Company. The RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 27 of 254 28 note dated 19.02.96 of Mr. R Rangarajan was ExPW14/A. The note was put up before board for approval of payment of Rs. 3.75 crore against the fire claim of Mid East India Ltd on account payment. The note was put up before the board on 28.02.96. He was present in the board meeting in the capacity of Company Secretary. Vide letter dated 28.02.1996 he communicated the decision of the board to Sh. B.D.Banerjee regarding approval of the aforesaid payment. The letter is Ex PW14/B. He identified his signatures at point A. Similarly note dated 24.04.96 recommending second on account of payment of Rs. 2 Crores against the fire claim of Mid East India Ltd., bears signatures of S Ramabhadran whose signatures he has identified which is ExPW14/C. The said note was placed before the board on 30.04.96. He was also present in the board meeting. Vide letter dated 30.04.96 he communicated to Sh. C N Ravi regarding the approval of 2 crore on account payment against the fire claim of Mid East India Ltd. The said note bears his signatures, same is ExPW14/D.
37. He also deposed similarly the note dated 04.06.96 of Sh. S Ramabhardhan was on ExPW14/E. This note pertains to the account payment of Rs. 2,21,55,281/ against the fire claim of RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 28 of 254 29 Mid East India Ltd. This note was put up before the board on 10.06.96. He was again present in the board meeting. Vide letter dated 10.06.96 he communicated to C N Ravi regarding the approval of balance payment against the fire claim of Mid East India Ltd of Rs. 2,21,55,281/. The note is ExPW14/F.
38. PW15 is Sh. V Sundaram, from United India Insurance Company, Head Office, Chennai. He has deposed that during the tenure from 1992 to 1996 he was working as Dy Manager Fire Technical Department of said company at Chennai. The note dated 20.06.95 of M J Agustine was received in the Head Office of Fire Technical Department. The said note related to claim of Fire policies of Mid East India Ltd., bearing nos. 11/13/279/94, 11/23/291/94, 11/13/100/95 & 99/95. The note is ExPW15/A, which bears the signatures of M J Agustin. He also deposed that vide this letter it was intimated that M/s Mehta and Padamsey had been appointed as a joint Surveyor for preliminary survey of the loss. Vide note dated 20.06.1996 Sh. B.D.Banerjee approved for appointing Mehta and Padamsey as surveyors, the said note is ExPW15/B which bears the signatures of B D Banerjee at point A and on the same note he and Mr. Rangarajan proposed the appointment RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 29 of 254 30 of Mehta & Padamsev and M/s Sunderraman to be appointed as Joint Final Surveyor. His report is ExPW15/C. He also intimated to M/s Sunderraman & Associate, Chennai regarding their appointment as joint surveyor with Mehta & Padamsey, the said letter is ExPW15/D.
39. He also deposed that regional office vide note dated 08.02.96 recommended the first on account payment for a sum of Rs. 3.75 crore to the insured. The said note bears the signatures of Mr. R Ramlingam at point A and Mr. K.K.Mishra at point B. The said note is ExPW15/E. On the basis of said recommendation a note was prepared by other officer whose signature he identified, which is ExPW15/F. The said note was put up in the board meeting dated 28.02.96 which is Ex PW14/A. Vide letter dated 01.03.96 approval on account claim of Rs. 3.75 crore was intimated to the Regional office The said note is ExPW15/G bears his signatures at point A. Vide this letter he asked the regional office to get the NOC from all bankers before releasing the payment to the insured. Since the policy was incorporated with agreed bank clause.
40. Similarly the recommendation of on account payment of Rs. 2 Crore against the fire claim of Mid East India Ltd was received RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 30 of 254 31 in the head office and the said note is ExPW15/H. The said note was put up in the board meeting on 30.04.96 vide Ex PW14/C. On the basis of the recommendation of Regional office a note was prepared for second on account payment of Rs. 2 Crores. The said note is ExPW15/J. The said note also bears the signatures of concerned officer. Vide letter dated 03.05.96 he communicated to the Regional office regarding approval of on account payment of Rs. 2 crore against the fire claim of Mid East India Ltd., by the board. The said letter is Ex PW15/K.
41. He further deposed that the note was prepared on 04.06.96 regarding passing of balance amount of Rs. 2,21,55,281/ against the fire claim of Mid East India Ltd. The said note is ExPW15/L, which bears his signatures and signatures of other officer. The said note was put up in the board meeting dated 10.06.96 which is ExPW14/E. Vide letter dated 25.05.96 the approval of the board was communicated to Regional Office Delhi vide letter dated 12.06.96. The said letter is ExPW15/M.
42. He further deposed that the term agreed bank clause wording are given in the All India Fire Tariff of the Tariff Advisory RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 31 of 254 32 Committee and should be incorporated in all the Insurance policies which carry the interest of bank or financial institution. If there are interests of more than one bank/financial institution then the consent/NOC should be obtained from the lead banker on behalf of all the banks/financial institution.
43. PW16 is Sh. C.D.Ghosh another witness from IFCI. He has proved one letter dated 20.08.98 bearing his signatures which he has proved ExPW16/A. There is also another letter dated 03.09.98 bearing his signatures, which is ExPW16/B. He was declared hostile by Ld. SPP of the CBI, and he was also cross examined on certain aspects, visaviz his earlier statement recorded by CBI during investigation(s).
44. PW17 is Kaushal Kishore Mishra, another witness from United India Insrance Company. He has stated that vide letter dated 23.06.1995 intimation was given regarding fire loss from divisional office to Head office Madras, the said letter is Ex PW17/A. Vide preliminary report of surveyor dated 21.06.95 a loss was assessed. The said report is ExPW17/B. Vide letter dated 23.06.95 information received from Mr. M.J.Augustin whose signatures he can identify as ExPW17/C. A note dated 23.04.95 regarding fire loss assessment was prepared by Ms. RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 32 of 254 33 H.Puhspa Vimal Kumar and signed by him and two other officers whose signatures he identified. Such note has been proved by him as ExPW17/D.
45. He has also proved claim note dated 08.02.96 prepared by certain officers of United India Insurance Company, as also by him. The said note is ExPW17/E. He further deposed that vide letter dated 15.02.96 ExPW17/F an intimation was sent to the head office regarding recommendation of on account statement of Rs.2.75 crores. Vide letter dated 01.03.96 an intimation was sent to Regional office regarding approval of of on account payment of Rs. 3.75 crores, the said letter is Ex PW17/C.
46. He has further deposed that vide letter dated 01.03.96 sent by Mr. A.K.Guha, whose signatures he identified. He had requested to send a cheque to Mid East India Ltd. The letter is ExPW17/H. On the basis of Surveyor report inspection was carried out by the team including him. The said inspection report is ExPW17/J. The second survey report dated 11.04.96 was received in their office which was processed in their office, which is ExPW17/K. On the basis of said fire report fire claim was assessed and recommended for on account payment of RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 33 of 254 34 Rs. 2 Crores which bears signatures of certain officials whose signatures he can identify. The said claim note is ExPW17/L. Another claim note dated 18.04.96 was prepared regarding on account payment of Rs. 2 Crore. The said claim note bears his signatures as well as signatures of other officials, which is Ex PW17/M. Vide letter dated 03.05.96 approval of Rs. 2 Crore on account payment to the insured was received in the regional office and the same was endorsed to him vide Ex PW17/N marked by Sh. Subramanium, the said letter is Ex PW17/O.
47. He further deposed that another claim note regarding on account payment was prepared under the signatures of Usha Sukhija and other officials ExPW17/P. Similarly another claim note regarding on account payment dated 24.05.96 was prepared under the signatures of certain officers and himself. The said note is ExPW17/Q.
48. He further deposed that vide letter ExPW17/R it was intimated to Division VII regarding approval of balance amount of Rs. 1,38,37,599/. Vide letter dated 04.11.96 it was intimated regarding approval of balance on account payment. The said letter was marked to him which bears his signatures RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 34 of 254 35 at point A. The said letter is ExPW17/S and he can identify the signatures of competent officer.
49. PW18 is Sh. S.Balasubramaniam another witness from United India Insurance Company who was posted in head office Chennai at the relevant time. He has deposed that a cheque dated 08.03.96 for an amount of Rs. 3,60,000/(Sic) was issued in favour of Mid East India Ltd from Head office Chennai. He can identify the signature of the person who had signed on the said cheque. The said cheque is ExPW18/A. Similarly another cheque dated 07.05.1996 for Rs. 2 Crores was issued in favour of Mid East India Ltd from the head office of the company under the signature of the officials, whose signatures he identified. The said cheque is ExPW18/B. The said cheque dated 18.06.96 for Rs. 1,38,37,599/ was issued in favour of Mid East India Ltd.
50. PW19 is Ms. Anju C Narula. She has deposed that in the year 1995 she was working with Sh. K.D.Chhabra who was the insurance consultant. She was assisting him in his work. She knew Mid East India Ltd situated at Zamrudpur. In the year 1995, there was fire in the factory premises of Mid East India RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 35 of 254 36 Ltd. She had gone alongwith Mr. Chhabra to their office that time. Mr. Singh, Mrs Singh and Natasha were managing the company. After seeing the letter dated 13.06.1996 addressed by A1 to United India Assurance, she has proved the said letter marked PW19/X, she stated that the said letter was received by her by fax.
51. PW20 is Sh. Sanjiv Bhatia. He deposed that he was Chartered Accountant. He was working in Mid East India Ltd from 1992 till 199495. He was DGM Finance there. Mid East India Ltd had other concern namely Mesco Pharmaceutical, Mesco Airlines and others. Ms. Natasha singh was the Director of Mesco Airlines, but he does not recollect the designation of Director namely Rita Singh(A1).
52. He also deposed that in connection with the official dealing letter ExPW2/C was signed by him which was addressed to IFCI, Lodhi Road, New Delhi. His signatures is at point A on the said letter. In March 1996 he was told by the management to bring the letter from the office of IFCI. He had gone there and collected the letter ExPW2/B in original from Sh. Y.V.Luthra. He had handed over the letter to the management officer on second floor, but he does not remember the person RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 36 of 254 37 to whom he handed over this letter. He also deposed that his signatures were appearing on the said letter ExPW2/B at point X.
53. PW21 is Sh. Suresh Dhingra, who has deposed that he was working as personal assistant to Ms. Rita Singh at M/s Mid East India Ltd during the year 1992 to 2000. At that time Rita Singh was the Managing Director and Natasha Singh was the Director of the company. As PA his duties were to attend phone calls, to arrange meetings and to take dictation of letters. He has also deposed that there was fire in one of the unit of M/s Mid East India Ltd. in 1995, Mr. K.D.Chhabra was looking after the insurance work. Ms. Anju Chawla was assisting him. Letter ExPW11/5 contained his signatures on behalf of Natasha Singh. His signatures were also at point A. He also identified his signatures on the letter ExPW21/A which had been typed by him on behalf of Natasha Singh. He also deposed that letter ExPW17/DC appears to contain signatures of Ms. Natasha Singh at point A, Letter dated 03.05.96 also appears to contain signatures of Natasha Singh, the same is marked 21/X. Letter dated 03.05.96 also appears to contain signatures of Natasha Singh, the same is marked RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 37 of 254 38 21/Y and another letter dated 03.05.96 also appears to contain signatures of Natasha Singh, the same is marked 21/Z.
54. He also deposed that letter dated 13.06.96 was being signed by him on behalf of Rita Singh, this letter is marked 21/Z1. There is a photocopy of said letter marked 19/X had been signed by Rita Singh as certified true copy of M/s Mid East India Ltd, which was the photocopy he had signed at point A for Rita Singh.
55. PW22 is Smt. Usha Sukhija who was working in United India Assurance Company at the relevant time. She has deposed on the basis of survey report, she used to examine the cases of fire insurance. In this case also she had examined the case of Mid East India Ltd on the basis of survey. After seeing file D15 page 184 she stated that she prepared claim note which is ExPW22/A bearing her signatures of other officials. She also deposed that she used to see the NOC and in case NOC was not available she used to suggest to obtain NOC before making final payment.
56. PW23 is Sh. V.M.Talwar, another witness from IFCI. He has deposed that in the year 1996 he was posted as Superintendent in Accounts Department and photocopy of RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 38 of 254 39 letter at page 90 was received in their office and was marked to Mr. Luthra. The said letter is Marked X and he does not know whether any confirmation was taken by him from Mr. Luthra. He had seen certified copy of the cheque realization ledger register D57, ExPW3/P and at point A there is entry about credit and debit of amount on 01.03.96. In this case Mid East India Ltd had issued another cheque which was reflected at Sl no. 28 of ExPW3/R, which was duly attested by Sh. Prasanjit Kar, whose signatures is at point A, but he does not recollect, whether cheque was credited in the account or not. After seeing ExPW3/S he stated that he had made entries in the same in his handwriting and signed by him, this is a summary of cheque realized.
57. PW24 is Ms. H.Pushpa another witness from United India Insurance Company. He has deposed that in connection with the fire in Mid East India Ltd., she visited the factory premises. After seeing ExPW6/A to D she stated that the same pertain to fire insurance of Mid East India with United India Insurance Company. The document ExPW17/A is the claim intimation, ExPW17/C is the AGM information to Head office for appointment of surveyor, Claim note dated 19.01.96 was RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 39 of 254 40 prepared by him alongwith Sh. Vimal Kumar which is already ExPW17/D and his signatures are at point A. Initially they had recommended Rs. 3.75 crores but later on it was reduced to Rs. 2.75 crores as mentioned in this document. Claim note Ex PW17/E was prepared by her.
58. She also deposed after seeing the letter dated 01.03.96 Ex PW17/E and another claim note dated 17.04.96 ExPW17/M that these claim notes were prepared by their office after receipt of surveyor report and recommendation from Divisional office, another claim note dated 16.05.95 which was the photocopy prepared by her jointly with Mr. Vimal Kumar Ex PW24/A. Claim note ExPW17/Q was prepared by her and it also bears her signatures. ExPW17/J is the inspection report which was prepared by Sh. Vimal Kumar. She further deposed that there was a bank hypothecation of the property that any major loss payment required NOC from the concerned bank.
59. PW25 is Sh. Subhash Chandra, another witness from United India Insurance Company, Divisional Office, Karol Bagh, New Delhi. He has deposed that in the course of duty he had processed the final fire claim of Mid East Company. This final claim was prepared after receipt of report from surveyor, which RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 40 of 254 41 bears his signatures at point A on ExPW22/A. He has deposed that if there was more than one financiers then insurance company has to take no objection certificate from the other financiers except in whose favour the money was to be released and in case financiers does not give no objection then money can be distributed proportionately according to their interest. He also deposed that the NOC was required to be obtained in original before making payment to the parties.
60. PW26 is Sh. Ashim Kumar Guha who was also working with United India Assurance Company and was incharge of their accounts department. He deposed that as account incharge his duty was to release the payment of claims. After seeing the letter dated 01.03.96 in file no. D1213, this letter was marked to by Mr. R Ramalingam by then AGM Regional office, which is ExPW26/A. This letter had gone to Technical Department of Delhi Regional office for collecting NOC from the bankers. The condition was original NOC had to be obtained from the concerned banks whose name was appearing in the policy for hypothecation.
61. He also deposed that vide letter dated 06.03.96 addressed to the head office fire technical department Chennai. Same is Ex RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 41 of 254 42 PW26/A. He also deposed that letter dated 07.03.1996 addressed by R Ramalingam then AGM Delhi, he proved the same as ExPW26/C, which was for release of cheque for settlement of fire claim. The letter is ExPW26/D, the same had been counter initiated by V Subramanium, Manager Technical. He also deposed regarding a fax message dated 06.05.1996, however he could say, whether the said message was received by him or not. However, he identified the signatures of Mr. T.K.Roy on the same, the said letter is Ex PW26/E. He also deposed after seeing the letter Ex PW17/DB, the same was signed by him as well as R Ramalingam and the said letter is ExPW26/F was singed by Mr. S Ramabadran and addressed to R Ramalingam. He had also seen letter ExPW17/DD dated 13.06.96 which was addressed to Fire Techinical Department.
62. PW27 is S.S.Dash. He has deposed that he was working at Mesco Airlines as executive secretary at Zamroodpur. His normal duties were to take down dictation and other official work. He was working under Ms. Natasha Singh, M.D. A search was conducted at Mid East India Ltd by income tax authorities and he was present during the search. He had RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 42 of 254 43 seen panchnama ExPW11/1 which was bearing his signatures at point A. He had also seen ExPW11/2 to PW11/4, they all contained his signatures at point X. Mr. B.B.Sharma was also with him during the search
63. PW28 is Sh. Roshan Lal Shingari from IFCI, New Delhi. He has stated that he was working in IFCI Delhi as Dy. General Manager(Projects). He knew accused Y.V.Luthra who was working as manager, when he was DGM. After seeing the letter dated 01.03.1996 which was the letter in respect of insurance claim by Mid East India, which is ExPW28/A, he has deposed that it contains his signatures as it was marked to him. He had marked this letter to Y.V.Luthra to confirm that there was no dues of the party before issue of NOC. In this letter writing portion marked B was of B.B.Huria, General Manager who had also recorded that NOC should be issued after clearance. He had talked with Sh. Y.V.Luthra who had informed him and confirmed in writing that no dues are outstanding. Sh. Luthra had recorded the note encircled in red colour at point C. After seeing the photocopy of letter dated 01.03.1996, he deposed that same contains the signatures of V.Y.Luthra, this letter is ExPW28/B. RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 43 of 254 44
64. PW29 is Sh. R.Mohansundaram who was working at Mid East Integrated Steel Ltd as accountant at the relevant time. He deposed that the chairman of the company was Sh. J.K.Singh and Ms. Rita Singh was the MD and Ms. Natasha Singh was the Director of the company. Mr. Sanjay Sehgal DGM Finance was his boss. The company was sanctioned loan from financial institution(s) like IDBI, IFCI etc. He was asked by Mr. Sanjay Sehgal to get print the fake invoices from the creaters and Gupta press and also he gave him the price and value of the fake amount. Based on this he had got it typed and handed over to him.
65. PW30 is M.J.Augustine, another witness from United India Insurance Company. He has explained rules and regulations with regard to fire insurance claim. He deposed that when the claim is reported the policy issuing office should inform the controlling office if the amount of loss is beyond their financial authority. Thereafter a surveyor is appointed to investigate and assess the loss. The surveyor is required to send a preliminary report particularly in case of major loss. Depending upon the quantum of loss sometimes joint survey is conducted, if the claim is above the financial authority of the AGM Incharge of RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 44 of 254 45 the Regional office, Head office should be informed in all such cases. Regional office can also suggest the name of the Sureveyor/surveyors to be appointed and Head office then advise Regional office the name of survivors to be appointed and Head office then advise Regional office the name of surveyors to be appointed to conduct survey of assessment of loss. When the survey report is received the policy issuing office will prepare claim note by their claims committee and settle the claim if the loss is within their financial authority otherwise, their recommendations will be sent to the controlling office and the controlling office will prepare the claim note and send their recommendation to the Regional office if the financial authority is beyond their financial limits.
66. He also deposed that Regional office also has a claims committee, who will process the claim file in detail, prepare a note containing their recommendation and comments about the loss, submit the same to the AGM Incharge of the Regional office. If the claim is again above the financial authority of the AGM he will sent his final recommendation to Head office with the note of claims committee of the RO for their processing and approval. If the claim is approved by the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 45 of 254 46 head office they will return the file to the Regional office with the instruction containing admission or repudiation of the loss. If the claim is payable cheque will be issued from Regional office depending upon the financial powers. All cheques are signed jointly by the authorities holding financial powers. No cheque will be issued with single signature.
67. He further deposed that NOCs are taken from financial institutions who are holding financial interest on the property which is subject matter of the loss. Without no objection payment cannot be issued to the insured. NOC should be original and not a photocopy.
68. After seeing the letter ExPW17/C he stated that same was bearing his signatures at point A, this was related to M/s Mid East India Ltd relating to appointment of Surveyor. He had also seen the document contained in file No. D18 which is Ex30/A he also deposed that after seeing letter dated 17.07.95 that same bears his signature at point A and the same is ExPW30/B. The letter was closed with status report and the status report bears his signatures at point A, same is ExPW30/C. The status report was also signed by some other person, whose signatures he identified.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 46 of 254
47
69. He also deposed that if there was any change in the renewal of the policy of the party the changes sought for must again be in writing and after satisfying the genuineness of such a request the insurance company may effect the changes. The interest of IFCI was not involved in the policies and in this case he had visited Mid East India office with the Divisional Manager and met Rita Singh and her daughter.
70. PW31 is Sh. R.S.Biswas. He is also the witness from IFCI. He has deposed that at the relevant time he was dealing with Foreign Currency Accounts and his job was limited to the extent of issuing notice. He knew Mr. Y.V.Luthra who was dealing with the projects. For obtaining NOC party used to send his request to the projects department. Project department used to refer to same to them for no dues/clearance and for no default certificate and they used to mention in their note with regard to any default if existed there and if no default existed then they used to mention no default.
71. After seeing ExPW2/B he stated that same was having signatures of Mr. Y.V.Luthra. No clearance was sought from him in terms of letter ExPW2/B dated 01.03.1996. He further deposed that they used to issue NOC in writing. The same RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 47 of 254 48 procedure was followed in every no objection certificate.
72. PW32 is Sh. S.L.Mukhi, retired Prinicipal Scientific Officer, CFSL New Delhi. He is the handwriting expert examined by the prosecution with regard to the questioned handwriting and admitted handwriting of the accused persons. He has proved various documents i.e admitted as well as questioned writing in the present case. He has proved his report ExPW32/L vide opinion No. IV, in which he has given detailed reasons for giving his report.
73. PW33 is Sh. N.Venkataraman. He is a formal witness. He has deposed that at the relevant time he was working in UCO bank and United India Insurance had an account(original account no. 558 and New number 201) and he knew Mr. S.K.Murthy who was their manager. He identified his handwriting and signatures on letter ExPW33/A, which was addressed to CBI. The letter enclosed with the cheque dated 08.03.96 addressed to Mid East India Ltd for Rs. 3,60,00,000/. The said cheque is ExPW18/A. He deposed that this cheque was duly passed and the amount was credited to the parties through clearance.
74. PW34 is Sh. R.K.Gupta who was working with Mid East India Ltd in the year 1992 in accounts/finance department. He RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 48 of 254 49 worked there till 1998. He deposed that Managing Director of Mid East India Ltd was Rita Singh and its Directors were J.K.Singh and Natasha Singh. He deposed that fire had broken in their factory at Noida. He also deposed that during course of business he became conversant with the signature(s) of accused Rita Singh and Natasha Singh and he can identify their signatures. After seeing the ExPW11/5 he deposed that the same does not bear signature of accused Natasha Singh at point Q12 and at point Q9 on mark 21/X. Signature at point Z appears to that of Natasha Singh on mark 21/X. He had seen ExPW21/DA and he cannot say whether signatures at point Q120 were of Rita Singh or not.
75. PW35 is Sh. S.P.Mitra, who was posted in Regional office, of UIICL at the relevant time and during the course of investigation certain documents were handed over to R S Dwivedi DSP CBI vide seizure memo ExPW33/A, vide which he handed over documents ExPW7/A to ExPW7/D as also ExPW7/E. He has explained regarding the procedure pertaining to the fire claim of Mideast India Ltd., as well as appointment of surveyor and the fact that in the insurance policy ExPW6/A to ExPW6/D, there was no insurance cover RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 49 of 254 50 in favour of IFCI. He has also deposed regarding various interim reports given by the surveyor from time to time and regarding making of payment to the Mid East India Ltd., by various installments.
76. PW36 is Tapan Kumar Roy. He was working with the United India Insurance Company during the relevant time in Accounts department of Head office at Chennai. His function was to maintain all India Coordination of accounts and to provide funds to the operating officers. After seeing the file marked D8 to D11 and the fax message dated 01.03.96 received by him addressed to him which is ExPW36/A. He has stated that he had asked for certain requirements to release the funds and the fax message ExPW36/B was issued on his directions.
77. He has deposed that he had seen letter dated 01.03.1996,this letter was received in their department in the contexts of claim of Mid East India Ltd., the same is marked PX1. He had seen another fax dated 07.03.1996 addressed in his name, this was dealt by him also. The said letter is ExPW36/C, which bears his signatures at point A .He further deposed that he had seen fax dated 06.05.1996 , which is already Ex PW17/DB, this was dealt by him and bears his signatures at RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 50 of 254 51 point D.
78. He further deposed that he had seen photocopy of letter dated 1.03.1996 which was received in his office through fax which was dealt by him and bears his signatures, the said document is ExPW36/D. There was a agreed bank clause, as per that clause discharge of financial institution or NOC from them to be obtained for release of payment. NOC was to be received from IFCI and other banks. The had not received any original NOC from IFCI. They made the payment on the basis of confirmation received from Delhi Regional office.
79. PW37 is Naresh Kumar Behl, who was working at Divisional Office,Karol Bagh at United India Insurance Ltd., at the relevant time. He had also processed the fire claim of Mid East India Ltd and he has also stated that M/s Mehta and Padamsey was appointed as surveyors in that regard, as claim was beyond the power of Regional office, the surveyor was appointed by Regional office as well as Head office. He has also explained and proved various documents pertaining to processing of said claim of NOC. The said documents are Ex PW37/A to ExPW37/L.
80. PW38 is Sh. R.V.S.Lohmor, DSP, CBI, EOUV, Delhi. He was RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 51 of 254 52 posted as Inspector CBI at the relevant time. During investigation of this case he assisted IO Sh. Vijay Kumar DSP. During investigation he had collected documents from MTNL, Nehru Place vide seizure memo ExPW1/H which were pertaining to telephone no. 2615170 and the document seized by him are ExPW1/A to G.
81. PW39 is Sh. Shivaji Gunware. He is also the witness from IFCI Regional office, Delhi. He has proved loan agreement dated 02.08.91(D55) executed between Mid East India Ltd., and IFCI, consisting of 21 pages. He has also identified the signatures of representative of IFCI who had signed on the letter ExPW39/A. He has also deposed that the general conditions of loan agreement are printed which is part of loan agreement and the conditions are marked at point X. He has also identified signatures of various officials on the said documents. He has also proved foreign currency loan agreement dated 02.08.91 between Mid East India Ltd., and IFCI(D55) consisting of 23 pages. He has also stated that the said conditions of loan agreement are printed which is part of loan agreement and conditions are marked at point Y. After seeing the ExPW2/B which was NOC issued by accused no.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 52 of 254
53
3, he has stated that in order to issue NOC clearance was required from Accounts Department. If there were dues outstanding to the party NOC cannot be issued to that party. Accused no. 3 had never taken NOC from him, nor he inquired from him in this regard.
82. PW40 is Sh. Rabi Lal Thapa. He has deposed that he was qualified Company Secretary and he had joined as Management Trainee in Mesco Pharmaceutical Ltd., thereafter he was shifted to Mesco Airlines as Company Secretary where Natasha Singh was the managing director of Mesco Airlines. In Mesco Airlines he was handling Company Secretarial matters and from time to time his managing director Natasha Singh allocated him some work and in the same one Rita Singh was one of the Directors. He further stated that he had been shown documents D27 at page 1 at portion Q1 in green ink is in his handwriting showing the figure 1,38,37,599/ which is ExPW40/A, the remaining portion has not been written by him, only the endorsement in green portion is in his handwriting which letter is dated 13.06.1996.
83. He further stated that he was called to the office of Natasha Singh by office boy, at that time Sh. Sanjeev Bhatia was the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 53 of 254 54 manager, who was not in the office, when he went to the office of Natasha Singh, at that time she was talking on phone. She gave her above letter and told and instructed him to write above endorsement ExPW40/A. After making the said endorsement she asked him to leave the said document with her.
84. He has further deposed that in the afternoon on the same day Natasha Singh gave her some documents to fax the same to Ms. Anju Chawla, who was the Assistant to K.D.Chhabra who was the insurance consultant of Mesco group. The fax number was given by Natasha Singh, accordingly he faxed the documents to Anju Chawla on the number given by Natasha Singh.
85. He also stated after being shown document D19 at page 568 already ExPW20/D1 on this endorsement at point Q119 encircled with red ink was made by him in his handwriting. The same is ExPW40/B. In document(s) D19 at page 566 is the copy of the fax which is already ExPW32/F. As far he remembers signature at point Q122 are of Mrs. Rita Singh(objected to). He identified her signatures as he has seen her writing and signing in official course of business.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 54 of 254
55
86. He further stated after being shown document D27 at page 4 that writing at point Q3, same is in his handwriting. The same is ExPW40/C. Page 4 is letter on the letter pad of IFCI(photocopy) which is dated 12.06.1996. On page 5 in D27 at point Q4 writing is in his handwriting. The same is Ex PW40/D. This is also a photocopy of letter on the letter head of IFCI dated 12.06.1996 The stamp on above said writings is of office of Company Secretary. He has seen shown page 16 which is already ExPW32/A which is a letter dated 03.05.1996(photocopy). As far as he remembers the signature at point Q7 seems to be of Natasha Singh and the writing at portion Q6 is in his handwriting. The signature of Natasha Singh at point A7 is ExPW40/E. He after being shown page 25 of D27 stated writing marked Q13 is in his handwriting. Same is ExPW40/F. This letter was addressed to Divisional Manager, United India Insurance Co. and this is for payment of Rs. 1,38,37,599/.
87.He had also been shown page 23 of D27 which is fax confirmation report. The fax was sent by him to Mr. D.K.Singh who was one of the Director of Mesco Group Co. The report is marked PX1. He was also shown page 17 of D27, after RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 55 of 254 56 seeing the same he stated that signatures on it at point Q8 are of Ms. Natasha Singh. The same is ExPW4/G. This is letter from Mid East India Ltd., to IFCI Ltd. He after seeing page 18 of D27 stated signature at point Q9 seems to be of Ms. Natasha Singh. The same is ExPW40/H. He was also shown page 19 of D27 which is already ExPW17/DC, he after seeing the said document stated that signatures at point Q10 are of Natasha Singh. The same is ExPW40/J.
88. PW42 is Kamal Deep Chhabra. He has stated that he was working as insurance consultant with the Mesco Airlines. He also stated that Natasha Singh was the managing director of Mesco airlines. He had worked with her for 45 years, he visited Regional Office, Branch office, Head Office to pursue the insurance claim alongwith Rita Singh, Natasha Singh as well as Anju Chawla who was his junior at that time.
89. He after being shown document D27 page 16 ExPW32/A stated after seeing the signatures at point mark Q7, that it was difficult to identify the same after lapse of time, however it appears to be the signatures of Natasha Singh as she used to sign like this. He further stated that signatures on ExPW32/B at portion mark Q8 also appear to be of Natasha Singh. He RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 56 of 254 57 has seen ExPW32/C portion mark Q9 which appears to be of Natasha Singh. He has also seen ExPW17/DC portion mark Q10 appears to be of Natasha Singh. He has seen D10 page 87(photocopy) the signatures at point A in encircled portion appears to be of Natasha Singh(objected as original had not been produced). He after seeing D20(photocopy) page 210 ExPW17/DA stated that signatures at point Q118 appears to be of Natasha Singh. He after seeing document D19 page 571, stated that the portion mark A appears to contain signatures of Natasha Singh, the same is ExPW42/A. He after seeing ExPW32/E D19 page 567 stated that the portion Q121 at point A appears to contain signatures of Natasha Singh.
90. PW43 is Insp. Parthasarathy who was also posted as Insp.
CBI SIG Branch at the relevant time. He has deposed that during investigation of this case he had assisted DSP R.S.Dwivedi and Vijay Kumar DSP and he had recorded statement of about 78 witnesses and he during investigation(s) had visited Chennai on two ocassion to record statement of witnesses and to collect documents. He had visited chennai to record the statement of Mr. Mohan RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 57 of 254 58 Sundram, Sh. Chaudhary and some bank officers. He has proved various documents pertaining to preparation of drafts and original cheque and payment made thereon to the Mid East India in various installments by way of cheque of Rs. 3.5 crores and other payment of Rs. 13837599/.
91. PW44 is Sh. R.S.Dwiwedi who was posted as DSP in Special Investigation Group CBI at the relevant period. He had also taken over investigation of this case and seized various documents. He has proved copy of FIR ExPW44/A and various other documents which he had seized during investigation(s) of the present case. He has deposed regarding part of the investigation carried out by him during the course of the present case.
92. PW45 is Sh. Tulsi Alimchandani who was posted in Divisional Office of United India Insurance Company at the relevant time. He was also looking after the work of divisional office. He was aware about the rules and regulations of the insurance claim. He has deposed that he had processed the insurance policy ExPW6/A with regard to fire claim of Mid East India Ltd., and that against the fire policy payments made to them from time to time. The first payment was more than Rs. 3 crores, second RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 58 of 254 59 payment was of Rs. 2 Crores and third payment was of Rs. 1 crore. He also deposed that payments were made to the party on the basis of NOC(s) received from the concerned party insured. He also deposed the criteria of payment is that NOC is required to be obtained from the party in original and thereafter payments are made. He also deposed that in the present case payments were made on the basis of fax copy of the NOC issued by IFCI.
93. PW46 is Sh. Asit Kumar Dutta another witness from IFCI Regional office, Delhi. He has deposed after seeing the document D52 which is file of IFCI Division Insurance Mid East India Ltd, which file is marked PW46/A. He deposed after seeing the letter dated 15.02.96 that the same was dealt by him and the party who is taking loan for fixed assets which was charged to IFCI against which the party is supposed to take insurance policy to cover the insurable value of the assets. After seeing the document ExPW7/B he deposed that Mid East India Ltd., had taken insurance in the name of IFCI as mortgagee for the period 01.06.93 to 31.05.94. After seeing another document ExPW7/E he stated that Mid East India took insurance in the name of IFCI for the period 04.06.93 to RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 59 of 254 60 03.06.94. After seeing the documents ExPW6/A to D he stated that same are the insurance policies of United India Insurance Company for the period 24.01.95 to 23.01.96 wherein there was no insurance in the name of IFCI by the party. If party does not take policy, IFCI reminds them. If any incident occurs, party make insurance claim from the insurance company for the damages if the insurance claim is settled money has to come to IFCI first, thereafter if there is any default IFCI adjusts the defaulted amount and balance is refunded to the company. If there are no dues outstanding then IFCI issue NOC(s) to the company to give the amount directly to the insurance company.
94. PW47 is Smt. Soundari Prakash who is a formal witness. She worked in Syndicate bank, Overseas Branch Chennai for 3 months at the relevant time and she had handed over certain documents to the CBI officials pertaining to the present case which were seized vide letter ExPW47/A of the bank.
95. PW48 is Sh. Vivek Priyadarshi. He also assisted main IO of this case Vijay Kumar, During investigation(s) he had collected some documents and examined some witnesses, as also recorded their statements and he remained associated RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 60 of 254 61 with the IO Vijay Kumar till the filing of the present case.
96. PW49 is Ms. Ahalya Anand Kumar. He has deposed that he was working with United India Insurance at the relevant time in the head office as Dy. Manager in Fire technical department. He also stated that divisional office of United India Insurance were in major cities, however head office was in Chennai. Whenever claim amount exceeded the limits of Regional office then the same was referred to head office for board approval. He also deposed that in the head office they had received intimation with regard to the fire in Mid East India Ltd., vide letter dated 20.06.95 which is ExPW15/A. The matter was examined by AGM since the loss amount exceeded Divisional office and Regional office Delhi, they appointed a joint survey as DO had already appointed Mehta and Padamsay to conduct the preliminary survey. M/s Sunder Ram and Associates were appointed by the head office after getting confirmation from the General Manager for the survey proceedings. He has explained regarding the entire processing of the insurance claim in the board meeting as well as payment and release of the said amount in favour of insured. He also deposed that every time approval was conveyed by RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 61 of 254 62 the head office, it insisted that payment should be made after obtaining NOC from all the financial institutions by the insured.
97.PW50 is the main investigating officer of this case Sh. Vijay Kumar. He has deposed regarding detailed investigation(s) as carried out by him in which he examined number of witnesses, seized number of documents and filed the chargesheet.
98.PW51 is Sh. R.Ramabhadran, who is also a witness from United India Insurance Company Ltd. He was posted as AGM(technical) at head office of the said company and he was looking after the fire insurance claims. He deposed that he came across Mid East Inda Ltd., in connection with the fire insurance claim during the tenure. He has deposed that for approval of Rs. 3.75 crores for payment on 28.02.1996 and necessary advise was sent to Regional office requesting them to release payment after obtaining NOC from the financial institutions. He also deposed regarding board approval for second on account payment of Rs. 2 Crores and similarly conveyed the same to the Regional office authorizing the said payment of Rs. 2 crores subject to obtaining NOC from the financial institution. He has also proved board noting with regard to all the payments made to Mid East India Company.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 62 of 254
63
99.PW52 is Sh. Shiv Singh from MTNL, Nehru Place. He has deposed that at the relevant time he was working as Commercial Officer(registration) MTNL, Nehru Place, New Delhi. Sh. Ravinder Malik was also working as Commercial Officer at that time alongwith him and Sh. M.S.Dang was working as PRO(registration) for booking of new telephone connection during the period 199596. After seeing the document D47 & D48 he stated that in the year 1995, Tatkal telephone used to be issued to the customer on payment of Rs. 30,000/ and after seeing the document ExPW1/B he deposed that Tatkal telephone was issued to Mesco Airlines, having address at H1, Zamrudpur Community Centre, Kailash Colony, New Delhi and the relevant documents relating to this telephone number is mentioned in D48, the telephone number which was issued was having number 6215170. He also deposed that in case a fax is used from telephone, the said telephone number also appeared on the fax machine. He also deposed after seeing ExPW21/D1, page 568, telephone number 6215170 appeared at portion Mark X on said document that such number appeared when fax message is sent by one party to another party on his RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 63 of 254 64 telephone number.
100.After seeing ExPW32/F, page 566 he deposed that telephone number 6215170 appeared at portion Mark Y on this document and such number appeared when fax message is sent by one party to another party on his telephone number.
101. After completion of prosecution evidence, statement(s) of the accused persons U/s 313 Cr.PC were recorded in which the entire incriminating evidence against the accused persons was put to them. Accused gave specific answers to all the questions put to them and in their defence A1 and A2 stated that this is a false case instituted against them. No loss has been caused to IFCI or to Insurance Company. Neither any document was forged nor any such document was used. No deception or fraud was committed either on IFCI or Insurance Company. They had not entered into any criminal conspiracy with anybody including Y.V Luthra for the purpose of obtaining any NOC. According to evidence on record, IFCI could not have been known, dishonour of the cheque dated 23.02.96 prior to 03.03.96 and 04.03.96. The sufficient funds were available on 01.03.96 in the account of the company to clear the cheque dated 23.02.96 for about Rs. 58 lacs.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 64 of 254
65
102. In his defence accused (A3) Y.V.Luthra stated that his senior officers Mr. B.B.Huria GGM and Dy. GM R L Shinghari including himself enquired from A/c department about the overdues payment position of MIL who informed that overdue payment had been made through cheque and for this reason he was instructed to issue NOC immediately by DGM R.L.Shinghari by making endorsement 'most urgent' on the application.
103.Thereafter accused persons in total have examined 6 witnesses in defence
104.DW1 is Sh. A.K.Saxena who was examined by A3 Y.V.Luthra. He was also the exemployee of IFCI and in this regard he produced one photocopy of letter date 15.09.01 written by A3 addressed to General Manager(HR), IFCI. The said letter was marked DW1/D1. He also produced original letter dated 12.10.2001 written by Y.V.Luthra addressed to General Manager(HR), IFCI. The said letter has been proved ExDW1/A. He has also produced another letter dated 19.11.2001 written by A.K.Mehta Dy. General Manager, HR addressed to Y.V.Luthra. Copy of the said letter is ExDW1/B, as also another letter dated 24.12.2001 written by Y.V.Luthra RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 65 of 254 66 addressed to General Manager(HR) which is ExDW1/D as well as letters/bills ExDW1/E & F respectively and another letter dated 09.01.02 ExDW1/H, as also another letter dated 20.03.2002 marked DW1/D2 and letters which are dated 20.05.2002, 03.06.2002, 31.10.2002, 03.01.2003, 16.01.2003, 24.03.2003 and 13.02.2001 which are ExDW1/J to Ex DW1/Q, as also other letters which have been marked till DW1/Z as also DW1/Z1 and Z2.
105.DW2 is Sh. Sudhir Kumar another witness from IFCI. He has deposed that IFCI had filed a suit in Debts Recovery Tribunal titled as IFCI Vs. Mid East India Ltd., bearing No. OA371/2000 and that they have received Rs. 450 lacs from Mid East India Ltd., as entire settlement of all the amount due and nothing was payable, thereafter case pending before the said tribunal was withdrawn. Certified copy of the order dated 31.05.12 passed by DRT is ExDW2/A and on the basis of records NOC dated 11.01.2012 was issued by him on behalf of IFCI Mid East India Ltd. Copy of the said letter is ExDW2/B.
106.DW3 is Sh. Satpal Arora, who during the relevant time was working in the Vigilance Department of IFCI as DGM. He had RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 66 of 254 67 conducted departmental inquiry against Y.V.Luthra in case of Mid East India Ltd., and he has also produced the file containing his findings which had been approved by Chief Vigilance Officer and Managing Director. He had produced attested copy of the relevant letter which is ExDW3/A.
107. DW4 is Sh. Bacha Babu Sharma, who has deposed that he was working as DGM(operations & administration) with Mesco Airlines at the relevant time and that of Mid East India Ltd situated in the same building i.e H1, Zamrudpur Community Centre, Kailash Colony, Delhi. There were four floors in the said building plus basement. In the year 1997 Ms. Natasha Singh was the Managing Director of MESCO Airlines, the rd office of Mesco Airlines was on 3 floor and Ms. Natasha Singh and other directors of Mideast India Ltd., used to sit on nd the 2 floor and Secretarial department and HR department of Mid East India Ltd., was situated in the basement. Reception and Conference was combined for both Mesco Airlines and Mid East India Ltd., office of Mesco Airlines and some other company were on the first floor.
108. There were no business dealings with Mesco Airlines and IFCI. Search was conducted by the Income Tax Department in RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 67 of 254 68 the building relating to all the companies situated in the building on 26/27021997. Income tax officers who were supervising the search informed them on 27.02.1997 that search operations could not be completed by that time, so they are sealing the entire building. No panchnama was made for the search conducted upto 27.02.1997.
109. He also deposed search was conducted by the Income Tax Officers again in the building on 06/07031997. The seal of the building was not opened by Income Tax officers in his presence. He does not remember, whether he was present or not when the search was conducted on 06.03.1997. However, he was present during the search operations in the building on 07.03.1997.
110. He also deposed that he was not in a position to tell which of the document was seized, from which floor of the building. No nd document was recovered or seized from 2 floor where Ms. Natasha Singh and other directors of Mid East India Ltd., used to sit. The income tax officers converted into the bundles all the loose sheets recovered during search operations and then prepared several panchnama and He signed all the loose sheets as well as Panchnama. He had identified his signatures RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 68 of 254 69 on various panchnamas which are ExPW11/1 to ExPW11/3.
111. DW5 is Sh. Shanti Swaroop Batra another witness from Mid East India Ltd. He deposed that he was working as company secretary at the relevant time with Mid East India Ltd. At that time the Managing Director was Ms. Rita Singh. Their office was at Zamrudpur. He was told by Ms. Rita Singh that she had discussion with General Manager of IFCI, Mr. B.B.Huria and she directed him to write a letter to Mr. Huria and meet him for the purpose of getting NOC. The letter already exhibited as ExPW2/A was dictated by him initially to his stenographer. Thereafter he had also added few lines and duly initialed the same. The letter ExPW2/A bears his signatures at point X and his initials at point Y. The writing encircled portion at point A and Mark B and Mark C were made by IFCI after submissions by them. He handed over letter ExPW2/A to Mr. B.B.Huria General Manager of IFCI. He had never met the person shown to her in the court and he dos not know Mr. Y.V.Luthra.
112. DW6 is Sh. V.C.Mishra, the handwriting expert examined by the accused persons A2 and A3 in order to contradict the testimony of GEQD examined by the prosecution namely PW32 S.L.Mukhi. He has proved his report with regard to RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 69 of 254 70 documents ExPW40/E, Ex40/G, ExPW32/B, ExPW32/C, ExPW32/H1 to ExPW32/H27, ExP50/A1 to ExPW50/A4 and ExPW32/H28 to ExPW32/H35. He also stated that he had taken the specimen signatures as well as photographs with the permission of the court. He has given his conclusion in his report ExDW6/A. The photographs and handwriting which he had taken with the permission of the court are Ex DW6/1 to ExDW6/36.
113. I have heard at length Ld. Counsel for A1 Sh. Kanwal Nain, Ld. Counsel for A2 Sh. S.K.Saxena, Ld. Counsel for A3 Sh. R.S.Aggarwal and Ld. PP for CBI Sh. V.K.Ojha and have also perused the record and written submissions. Ld. Defence counsel for A1 has relied upon following judgments in support of his contentions: (2000) 2 SCC 734 Modern Insulators Ltd.
Vs Oriental Insurance Co.Ltd.; (2007) 1 SCC 368 United India Insurance Co.Ltd.; (2006) 12 SCC 673 Peacock Plywood (P) Ltd Vs Oriental Insurance Co.Ltd.; (2004) 3 SCC 694 United India Insurance Co.Ltd.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 70 of 254
71
Vs Pushpalaya Printers; (2009) 5 SCC 313 Bank of India Vs K.Mohandas; 2008 (5) SCC 668 Maksud Saiyed V State of Gujrat;
2006 (10) SCC 581 Sabitha Ramamurthy Vs Channabasavaradhya; 2009(1) SCC 516 R.Kalyani Vs Janak Mehta; (2009) 9 Supreme Court Cases 221 Malay Kumar Ganguly Vs Dr. Sukumar Mukherjee & Ors. (Crl.Appeals Nos. 119194 of 2005) With Kunal Saha (Dr.) Vs Dr. Sukumar Mukherjee & Ors.; (1980) 4 Supreme Court Cases 425 Marudanal Augusti Vs State of Kerala; (1997) 10 Supreme Court Cases 236 Daulat Ram Vs State of Punjab; (2003) 9 Supreme Court Cases 45 Baldev Singh & Anr. Vs State of M.P.; 1976 (1) SCC 20 Bhagirath Vs State of M.P.; 1974 (3) SCC 397 Har Chand Singh & Anr. Vs State of Haryana; 1974 (4) SCC 494 State of Haryana Vs Gurdayal Singh; 1978 Crl. L.J. RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 71 of 254 72 1588 Jagjit Singh Vs State of Punjab; 1976 (1) SCC 442 Badri Vs State of Rajasthan;
1973 (2) SCC 808 Kali Ram Vs State of H.P; 2011 (11) SCC 286 State of U.P Vs Preetam & Ors.; 2001 (10) SCC 103 M. Abbas Vs State of Kerala; 1973 (4) SCC 46 Smt. Bhagwan Kaur Vs Sh.Maharaj Krishan Sharma & Ors.; AIR 2010 SC 806 Ramesh Chandra Vs Regency Hospital;
1995 Supp(3) SCC 702 State Vs D. Krishnamurthy; AIR 2003 SC 2169 Subhash Parbat Vs State of Gujrat;
1972(2) SCC 392 State of Gujrat Vs M.P.Dwivedi; 2013 (14) SCC 153 State of Punjab Vs Madan Mohan Lal; 2005 (12) SCC 576 UOI Vs Purnandu; 2006 (13) SCC 305 V.Venkata Subbarao Vs State of A.P.; 1998 (7) SCC 337 Suresh Budharmal Kalani Vs State of Maharashtra; 2011 (6) SCC 450 State of Kerala Vs C.P.Rao; AIR RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 72 of 254 73 1954 SC 606 Mahant Sital Das Vs Sant Ram & Ors.; AIR 1966 SC 1457 Roman Catholic Mission Vs State of Madras & Anr.; 2011 (4) SCC 240 H.Siddiqui Vs A. Ramalingam; (1995) 1 SCR 887 Kalidas Dhanjibhai Vs State of Bombay; (2011) 15 SCC 365 State of Andhra Pradesh Vs M.Durga Prasad & Ors.; 1995 Supp (4) SCC 704 B.H. Narasimha Rao Vs Government of A.P; (1997) 10 SCC 236 Daulat Ram Vs State of Punjab; (1972) 4 SCC 650 Rasul Mohammed Vs State of Maharashtra; (2006) 12 SCC 545 Subhash Harnarayanji Laddha Vs State of Maharashtra; 2005 (121) DLT 522 Shashi Lata Khanna Vs State of Delhi; 2007 (5) SCC 730 J. Yashoda Vs K. Shobha Rani;
(1975) 4 SCC 664 Ashok Dulichand Vs Madahavlal Dube; (2013) 2 SCC 114 U. Sree Vs U.Srinivas; 2013 (136) DRJ 249 RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 73 of 254 74 Anil Maheshwari Vs CBI; 2009 (1) SCC 516 R.Kalyani Vs Janak C. Mehta & ors.; 2009 (8) SCC 617 State of Madhya Pradesh Vs Sheetla Sahai & ors.; 2009 (6) SCC 77 S.V.L.Murthy Vs State.
114. Ld. Defence counsel for A2 has relied upon following judgments in support of his contentions: 1999 Cri.L.J.3124 (arising out of D.no.1151 of 1998) with Crl.Appeal No.321 of 1998 with Crl.Appeal No.322 of 1998 with Crl.Appeal No.323 of 1998 with Crl.Appeal No.324 of 1998 with Crl.Appeal No.325 of 1998 State of Tamil Nadu through Superintendent of Police CBI/SIT Vs Nalini and Ors. WITH T.Suthenthiraraja alias Santhan & Ors. Vs State by DSP, CBI, SiT, Chennai WITH P.Ravichandran & Ors. Vs State by DSP, CBI, SIT, Chennai WITH Robert Payas & Ors. Vs State by DSP, CBI, SIT, Chennai WITH RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 74 of 254 75 S.Shanmugavadivelu & Ors. Vs State by DSP, CBI, SIT, Chennai WITH S.Nalini & Ors. Vs State by DSP, CBI, SIT, Chennai and 1997 Cri.L.J.2559 titled L.K.Advani Vs Central Bureau of Investigation.
115. Ld. Defence counsel for A3 has relied upon following judgments in support of his contentions: 1972 Cri.L.J.849 (V 78 C 212) Crl.Appeals Nos.125 and 126 of 1969 titled Union of India & Anr. Vs 1.Major J.S.Khanna (In Cr.A.No.125 of 1969) 2. Major I.C.Lala (In Cr.A.No.126 of 1969) ; 1964 (2) Cri.L.J.209 (Vol.69, C.N.66) Sumermal Jain & Ors. Vs The Union Territory of Tripura ; 1999 Cri.L.J.1638 in Crl.Appeal No.43 of 1992 with Cri.A.No.753 of 1991 Vijayan alias Rajan Vs State of Kerala WITH K.S.Sadanandan Vs State of Kerala and 1983 Cri.L.J.612 titled Rajaram Gupta & Ors. Vs Dharamchand & Ors.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 75 of 254
76
116. On the other hand, Ld. PP for the CBI has relied upon the following judgments: 2011 (1)SCC(Cri.)706 titled Rabindra Kumar Pal @ Dara Singh Vs Republic of India; judgement dated 09.07.2010 of Hon'ble High Court of Delhi in Cri.M.C.No. 2029/2010 Nakul Kohli Vs State; 1968 Cri.L.J.1124 (V.74, C.N.319) titled L.Choraria Vs State of Maharashtra; 1980 Cri.L.J.396 titled Murari Lal Vs State of M.P. ; 1989 Cri.L.J.841 titled Prithi Chand Vs Stateof H.P and 2006 Cri.L.J.1121 titled Radha Mohan Singh Vs State of U.P.
117. Main arguments of Ld. Defence counsel for A1 are that, firstly, admittedly all the insurance policies regarding which NOCs dated 01.03.1996, 03.05.1996 and 13.06.1996 were submitted did not contain the interest/lien of IFCI, secondly it is also admitted fact that no outstanding amount was there with regard to loan agreement ExPW39/A and ExPW39/L of Mid East India Limited which was outstanding with the IFCI on the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 76 of 254 77 date of issuance of above NOC(s), thirdly since the insurance policies did not contain lien/interest of IFCI, no NOC was required at all, fourthly all the NOCs mentioned above were submitted in original and existed and the prosecution in this regard has not collected proper evidence for the reasons best known to the prosecution, the original(s) have not deliberately been produced before the court. Lastly, it is argued that there is no evidence whatsoever against A1 pertaining to the forgery making of any false document, the only document against A1 on which prosecution relies is one photocopy of the NOC dated 13.06.96 regarding which no corroborative opinion of handwriting expert has been given or obtained by the prosecution.
118. It is also argued that there is no evidence whatsoever with regard to the conspiracy between A1, A2 and A3, as no evidence has been lead on the record by the prosecution, even prima facie, to reach this inference that there was existence of any conspiracy or agreement to commit an offence between the above accused persons. Therefore it is argued that A1 deserves acquittal.
119. Regarding accused no. 2 similar arguments have been RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 77 of 254 78 reiterated, firstly the insurance policy does not contain interest/lien of IFCI. Therefore they have no concern whatsoever with the claim for which insurance policies and the clauses contained therein were invoked, Secondly, loan agreement D50 and D51 ExPW39/A and ExPW39/L does not contain any agreed bank clause stipulating the interest of IFCI. Further general conditions are not part of the agreement D50 and D51, as the Mid East India Ltd was under no liability to go for insurance of the plant and machinery during the currency of the loan agreement, one Indian Currency and another US Dollars, Thirdly, no liability of A2 can be fixed in the present case, as there was no outstanding dues of Mid East India Ltd with regard to above loan agreement D50 and D51 outstanding on 03.05.96 and 13.06.96, the dates on which the above NOCs were issued rather there was no requirement of issuance of said NOCs, yet their issuance was insisted upon by the United India Insurance Company and they were given on their insistence.
120. Fourthly, first time PW12 in the survey report stated regarding the existence of the claim of IFCI, whereas there was no interest of IFCI with regard to the loan transaction in RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 78 of 254 79 question. It is also argued that the letter dated 10.12.98 written by Mid East India Ltd to the IFCI and their reply dated 27.12.98 clearly shows that there was no conspiracy in the present case, as Mid East India Ltd., itself has written letter in December 1998, apprising them regarding the fire in the factory at Noida and the processing of insurance claim, which shows bonafide(s) on the part of A2 that she had nothing to hide, otherwise no such letter would have been written to the IFCI.
121. It is further argued that all the original NOCs, like the NOC dated 01.03.96 existed and were given, yet the prosecution has only produced original NOC dated 01.03.1996, whereas the original NOC(s) dated 03.05.96 and 13.06.96 were never produced for the reasons best known to the prosecution, they have been hided from the court in order to falsely implicate the accused persons in the present case. Fifthly, it is further argued that there is no dishonest intention on the part of the accused persons including A2. There was no wrongful gain or wrongful loss to the IFCI or insurance company. Lastly, it is argued that the entire case on which accused persons have been chargesheeted is of civil nature RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 79 of 254 80 and no criminal liability can be fastened upon the accused persons, even otherwise it is argued that the entire payment has already been given to the IFCI before Debt Recovery Tribunal regarding which accused persons have also examined defence witness who has stated that the matter pending before DRT has been settled and the said case has also been withdrawn. Therefore it is argued that A2 has been wrongly roped in the present case deserves acquittal.
122. Regarding A3 similar arguments have been addressed. It is also argued that there is no conspiracy between the accused persons, which is evident from the letter dated 10.12.98 written by IFCI to the A3 and the reply dated 27.12.98 of A3 in which he has clearly stated that the insurance policy claim was subject to the interest/lien of IFCI, which clearly shows that there was no agreement to commit offence between the accused persons. Lest A3 would have not written such letter of such nature. It is also argued that role of A3 is only with regard to NOC dated 01.03.1996 Ex PW2/A. It is argued that said NOC was issued after cheque had been received from IFCI, which was in transaction and on this presumption the NOC was issued, since cheque had been RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 80 of 254 81 received in the regular course of business transactions and IFCI has been receiving said cheques on behalf of Mid East India Ltd., previously for number of years and there had been never any default. Therefore said NOC was issued bonafidely, Secondly it is argued that NOC dated 01.03.1996 ExPW2/A has been given in this manner, rather blaim lies on PW2 and PW3 and senior officials of IFCI who have foisted the entire blaim of their criminal liability upon the A3.
123. It has also been argued by the A3 that prosecution has also admitted that the high value cheque(s), which was the cheque in the present case were dishonoured or honoured on the same day and the General Manager was apprised regarding the dishonour of the cheque on the same day. It is also argued that it has come in the testimony of the prosecution as well as defence witnesses examined by A3 that even the oral confirmation could be given regarding the dues position of any borrower. He has argued that A3 had made oral confirmation regarding the dues from the concerned officers of the IFCI, only after an oral confirmation was given by accounts department and other department that there was no dues of the IFCI existing on the said date. NOC ExPW2/A RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 81 of 254 82 dated 01.03.1996 was issued for which accused cannot be faulted or made liable. It has also been argued by A3 that second and third NOC(s) dated 03.05.1996 and 13.06.1996 were never issued by him. It has also been argued by A3 that he had not obtained any pecuniary advantage, or nor any loss pecuniary or otherwise has been caused to the IFCI, as there were no dues existing on the date of issuance of NOC dated 01.03.96 and even otherwise the entire matter has been settled and no loss has been caused to IFCI.
124. Ld. Public Prosecutor has strongly refuted the above arguments of Ld. Defence Counsel(s) and has argued that agreement D50 and D51 ExPW39/A and ExPW39/L also contained the general condition(s) with regard to the fact that general conditions which were on printed proforma were also part of the said agreement and as per the said general conditions the insurance clause was also part of the agreement D50 and D51. He has further argued that infact accused persons had been mentioning the interest of IFCI in their previous insurance policies prior to the insurance policy in question with regard to which claim was lodged with the United India Insurance Company with respect to the fire in the factory RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 82 of 254 83 of Mid East India Ltd in June, 1995.
125. He has further argued that payment position which is reflected in D56 ExPW4/B shows that there were dues of approximately 58 lacs, 41 lacs principal as well as Rs. 17 lacs as interest component on the date of issuance of NOC dated 01.03.1996. He has further argued that it has been proved by the prosecution by examining PW2, PW28, PW3, PW8, PW31 and PW39 that accused no. 3 never obtained any confirmation from the accounts department or took any no dues confirmation from them before the issuance of NOC dated 01.03.1996 ExPW2/A. He has also argued that the insurance policies ExPW6/A to ExPW6/D(D21) are all subject to agreed bank clause. He has argued that the fire took place in the factory of Mid East India Ltd., in June, 1995. Thereafter they wrote to the insurance company for processing of insurance claim and two surveyors were appointed and in the said survey report there was a requirement of NOC and the demand of NOC was firstly made on 28.02.1996, as per extracts of the board meeting at Head office of United India Insurance Company wherein they demanded fresh requirement of NOC to be obtained from all the bankers.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 83 of 254
84
126. He has also argued that regarding second and third NOCs, it is clearly proved by the prosecution from the prosecution witnesses examined on the record that they were forged and fabricated and they were never issued by the IFCI, which fact was discovered by serendipity, when a income tax raid/survey was done at the office of Mid East India Ltd., situated at Zamrudpur Community Centre, Kailash Colony, Delhi, from where number of documents were seized vide panchnama which has been proved by PW11 D.Roy Choudhary from Income Tax Department and the said document(s) were seized vide ExPW11/1. The said documents were compiled in D27, pages 1 to 25 were found and seized and seal was affixed on the documents which are ExPW11/5(colly). He has argued that the said documents are arranged in haphazard manner, as the said documents were also required in some other case. He has argued that PW11, is the official witness has clearly proved the valid recovery of said documents. He has argued that D27 clearly shows that A2 and A1 had been making preparation to forge the documents i.e NOC dated 03.05.1996 and 13.06.1996. He has argued that NOC dated 03.05.1996 was contained in the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 84 of 254 85 insurance file D20 page 210, whereas the forged NOC dated 13.06.1996 submitted with the United India Insurance Company is contained in file D19 page 566. He has argued that handwriting expert has clearly opined that the signatures in the file D27 at point Q7, Q8 and Q9 are of A2, which is also corroborated by the testimony of PW40 Rabi Lal Thapa.
127. He has also deposed that he had written certain portions on the documents which are part of the document file D27 at the instance of A2 Natasha Singh. He also argued that prosecution witness PW36 and PW45 have clearly deposed that only photocopies of NOC were received by the insurance company and originals were never submitted.
128. He has also argued that PW8 who is the witness from IFCI has stated that there was only one original NOC in the said file pertaining to present case, which was the NOC dated 01.03.96 and there was no other NOC issued by them, which also shows that second and third NOC were forged and fabricated. He has argued that for making out a case U/s 420 IPC it is not necessary that there should be wrongful loss or wrongful gain at the same time, one is enough i.e if the person is able to get wrongful gain for himself or corresponding RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 85 of 254 86 wrongful loss for another, that proves proves dishonest intention on the part of the said person and he has argued that in the present case accused persons had clearly induced the insurance company to pay the insurance claim based on the forged NOC by practicing deception.
129. It is also argued that even lodging of photocopy of NOC dated 03.05.1996 and 13.06.1996 would come in the definition for making false document U/s 464 of IPC. It is argued that there is seldom any direct evidence of conspiracy. The evidence with regard to the conspiracy can only be gathered from the entire material placed before the court and in the present case evidence of conspiracy is clearly revealed on analysis of the entire prosecution evidence.
130. He has also argued that offence U/s 13(1)(d) is also made out against A3, as for making out offence U/s 13(1)
(d)(iii) prosecution has to prove that the said public servant had obtained for any person any valuable thing or pecuniary advantage, which was without any public interest and mens rea was not required to be proved. He has argued that on the date of issuance of first NOC dated 01.03.1996 there was dues of Rs. 58 lacs against Mid East India Ltd. Yet A3 had RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 86 of 254 87 issued said NOC in most blatant violation of norms for issuance of NOC, which had resulted into pecuniary advantage to the Mid East India Ltd., of which A1 was Managing Director and A2 was the Director which was without any public interest. Therefore it is argued that all the accused persons deserves conviction under conspiracy as well as for substantive offence(s) and individual offences(s) for which they have been separately charged.
131. Before proceeding further it will be expedient in the interest of justice to discuss some of the uncontroverted facts mentioned in the chargesheet.
132. The story of the present case begins with the intimation regarding the fire which took place in the factory premises of Mid East India Ltd on the night of 1718/06/95 in which allegedly the plant and machinery, stocks and buildings are stated to have suffered heavy damage. Since the said plant & machinery and building were insured with the United India Insurance Company Ltd., as well as Oriental Insurance Company Ltd, the intimation was given with regard to fire to the concerned insurance company. In this regard intimation was given from Divisional Office of United India Insurance RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 87 of 254 88 Company Ltd(hereinafter referred to as UIICL) from divisional office to head office, which has been proved by PW17 K.K.Mishra Deputy Manager, Regional office Delhi vide document ExPW17/A(D18) vide intimation dated 23.06.1995. Thereafter vide letter dated 20.06.1996 ExPW30/A (D18) it was informed that M/s Mehta and Padamsey were appointed as surveyors for preliminary survey and it was also advised that if the loss exceeded Rs. 1 crores then it should be a joint survey. This letter was written by the Head office. Thereafter vide another letter dated 23.06.1995 written by Divisional office of UIICL ExPW17/C to the Head Office, it was informed that pursuant to their communication dated 20.06.95 of the Head office they had received the preliminary survey report of M/s Mehta and Padamsey Surveyors. Copy of the same was also enclosed for information and perusal. It was also suggested by the Regional office Delhi that in view of the magnitude of the claim another firm/surveyor of repute be appointed to conduct joint survey with M/s Mehta and Padamsey Surveryors Pvt. Ltd.
133. Thereafter there was a joint interim report dated 11.01.1996 submitted by the joint surveyors M/s Mehta and RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 88 of 254 89 Padamsey Surveyors as well as M/s S. Sunderraman & Associates(who were appointed as surveyor by Head Office, Chennai). The said interim report dated 11.01.1996 has been proved by PW12, same is ExPW12/A. Alongwith the report there is annexure contained annexure IV, relying upon the letter dated 27.12.1995 written by A3 Y.V.Luthra to Mid East India Pvt. Ltd., telling them that IFCI had financed two Shoe line(s) by foreign currency loan and IFCI had exclusive charge on the plant & machinery and IFCI is the beneficiary under the insurance policy of such plant and machinery, as such the cheque for the settlement amount may be drawn in favour of IFCI Ltd. The said letter has been proved as ExPW12/C, which is Annexure IV. Therefore vide interim surveyor report dated 11.01.1996 on account payment of Rs. 3.75 Crores was recommended in the said survey report.
134. The said interim survey report was forwarded by the regional office to Head Office vide letter dated 15.02.1996.
135. Thereafter matter was placed before the board of UIICL who vide board meeting dated 28.02.1996 accorded sanction of Rs. 3.75 crores ExPW14/B Page 90 (D24). Thereafter a letter was written by Head office to Regional RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 89 of 254 90 office dated 01.03.1996 intimating the sanction of Rs. 3.75 crores in board meeting and also advised them to obtain NOC from all the bankers before releasing the said payment. The said letter is ExPWE15/C page 89 (D24) . Thereafter a fax message dated 01.03.1996 was sent from Head office to Regional office informing them to obtain NOC from the respective bankers so as to enable them to release the cheque in the name of the insured. Thereafter a cheque of Rs. 3.60 crores dated 08.03.1996 (D29) ExPW18/A was deposited in the account of Mid East India Ltd., vide pay in slip D34 Mark PY2. This is a trail from the fire in the factory of Mid East India Pvt. Ltd., on 17/18061995 to the first interim payment of Rs. 3.60 crores, which was deposited into the account of Mid East India Pvt. Ltd.
136. Regarding the second joint surveyor report dated 11.04.1996 the same is ExPW17/K(D19) Page 462 which recommended interim payment of Rs. 2 Crores. The matter was again placed before the board of UIICL, the second board meeting was convened regarding the approval of this amount. The same was approved in the board meeting on 30.04.96 and was approved vide resolution ExPW14/D (D24) Page 141.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 90 of 254
91
Thereafter a letter dated 03.05.1996 was written by technical fire department head office to regional office, New Delhi intimating them regarding the board approval for second on account payment of Rs. 2 crores to the insured and since policy was incorporated with the agreed bank clause, it was advised them to arrange or to get NOC from the lead bankers on behalf of other banks/financial institutions and get in touch with Head office for transfer of funds. The said letter is Ex PW15/K page 142(D24). Thereafter cheque for Rs. 2 crores D31 ExPW18/B dated 07.05.96 was prepared in the name of Mid East India Ltd.
137. Regarding the final survey report dated 21.05.1996 same is contained in D15 page 178 ExPW12/B given by the joint surveyors and they recommended the final balance payment to the insured. However some amount had to be retained on account of adjustment of Modvat, thereafter the said final survey report was also placed before the board of UIICL and board meeting was convened for this purpose and on 10.06.96 the board recommended vide board resolution Ex PW14/F (D24) page 258, sanctioned an amount of Rs. 22155281/, vide further letter dated 12.06.96 head office fire RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 91 of 254 92 technical department wrote to the Sh. R Ramalingam, Assistant General Manager Regional Office that only an amount of Rs. 13837599/ be released in favour of insured and the remaining amount had to be withheld due to adjustment of the charges. It was also advised vide said letter dated 12.06.1996 that NOC be obtained from financial institutions and banks. The said letter is ExPW15/M D24 page 259. Thereafter final cheque of Rs. 13837599/ was prepared in the name of Mid East India Ltd., vide cheque dated 18.06.96 ExPW10/C contained in document D32. This is the picture emerging regarding the various payments of insurance claim(s) to the Mid East India Ltd., in three chunks by the UIICL.
138. Prosecution story or the genesis of the present case starts from 02.08.91 when two agreements were executed between Mid East India Ltd., and IFCI. The agreement contained in D50 ExPW39/A was the Indian Currency loan which agreement was signed, sealed and executed on the said date by Sh. H.R.Yadkikar Manager(law) who was authorized official of IFCI on behalf of IFCI as well as on behalf of Mid East India Ltd., by Sh. A.K.Paliwal, Company RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 92 of 254 93 Secretary. The said agreement has been proved by PW39 Shivaji Gunware witness from IFCI. As per the definition clauses(s) contained in the Indian Currency loan agreement ExPW39/A more specifically clause 1.1(a), wherein it is written as under: "General conditions means the General Conditions No. GCI86 applicable to assistance provided by financial institutions"
139. Further the said general conditions are contained in printed proforma of IFCI and on page 37 of the said booklet, there is a insurance clause which is as under:
(a) Keep insured upto the replacement value thereof as approved by the lead institution(including surveyors and architect's fees) the properties charged /to be charged to the lenders and such of its other properties as are of an insurable nature against fire, theft, lightning, explosion, earthquake, riot, RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 93 of 254 94 strike, civil commotion, storm, tempest, flood, marine risks, erection risks, war risks, and such other risks as may be specified by the lead institution and shall duly pay all premia and other sums payable for that purpose. The Insurance in respect of the properties charged/to be charged to the lenders shall be taken in the joint names of the borrower and the lenders and any other person or institution having an insurable interest in the properties of the borrower and acceptable to the lead institution. The borrower shall keep deposited with the lead institution the insurance policies and renewals thereof.
(b) Agree that, in the event of failure on the part of the Borrower to insure the properties or to pay the insurance premia or other sums referred to above, the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 94 of 254 95 lenders may get the properties insured or pay the insurance premia and other sums referred to above, as the case may be.
140. Similarly on the same day another loan agreement was executed between IFCI and Mid East India Ltd., dated 02.08.91 which was foreign currency loan, which was also been proved by PW39 Shivaji Gunware who has identified the signatures of the authorized official of IFCI H.R.Yadkikar. The said agreement is ExPW39/L. Similarly in Article 1 of the definition clause 1.1(c), it is stated that General Conditions means General Conditions No. GCFCI88 applicable to foreign currency loan provided by financial institutions and there is a printed proforma annexed with the said loan agreement, which is the part and parcel of the agreement and as per page 39 of the said booklet(internal page 13 there is insurance clause(v) which reads as under:
(a) Insure and keep insured against such risks as may be determined by the lenders, all the goods to be imported for the purpose of the project RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 95 of 254 96 whether financed out of the proceeds of the Loans or not and in particular the goods to be financed out of the proceeds of the loans as are of an insurable nature against all marine, transit and other hazards incident to the acquisition, transportation and delivery of the goods to the place of use or installation and for such insurance any indemnity shall be payable in any currency freely usable by the borrower to replace or repair such goods.
(b) Keep insured upto the replacement value thereof as approved by the Lead institution(including surveyor's and architect's fees) the properties charged/to be charged to the Lenders and such of its other properties as are of an insurable nature against fire, the lightening, explosion, earthquake, riotstrike, civil RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 96 of 254 97 commotion storm, tempest, flood, marine risks, erection risk, war risks and such other risks as may be specified by the Lead institution.
(c) Duly pay all premia and other sums payable for that purpose. The insurance in respect of the properties charged/to be charged to the lenders shall be taken in the joint names of the borrower and the lenders and any other person or institution having an insurable interest in the properties of the Borrower and acceptable to the lead institution. The borrower shall keep deposited with the lead institution the insurance policies and renewals thereof.
(d) Agree that in the event of failure on the part of the Borrower to insure the properties or to pay the insurance premia or other sums referred to above, the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 97 of 254 98 Lenders may get the properties insured or pay the insurance premia and other sums referred to above, as the case may be.
141. From the perusal of the above agreement including the General clause(s) appended thereto, it is clear that the borrower was under an obligation to keep the properties charged to the lenders insured against the fire, theft etc. The insurance in respect of the properties charged to the lenders had to be taken in the joint name of the borrower and the lender or any other person/institution having an insurable interest in the properties of the Borrower and acceptable to the lead institution. The borrower was also under an obligation to keep deposited with the lead institution the insurance policies and renewals thereof. It was also stipulated that in the event of failure on the part of the Borrower to insure the properties or to pay the insurance premia or other sums referred to above, the Lenders may get the properties insured or pay the insurance premia and other sums referred to above, as the case may be.
142. Therefore in view of the said stipulations contained in the general conditions of the loan agreement, both Indian RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 98 of 254 99 currency as well as foreign currency loan the borrower was under an obligation to get the properties which were charged to the financial institution i.e IFCI in this case insured at all times against fire, theft and against other risk and therefore under an obligation to keep deposit insurance policies and renewal thereof and in case of default it was also agreed by the borrower that the financial institution may get the properties insured themselves. Therefore it was agreed by the borrower that they will keep the properties which were charged as per the loan agreement D50 and D51 at all the times and would keep them insured from fire, theft etc. The simple reason for doing so is that the borrower should get a valid security for the plant and machinery upon which the lender had the first charge so that the lender should not suffer any loss, in case of failure of the borrower to get the plant and machinery and other things over which the lenders had the lien due to failure to have insurance policy & renewals thereof.
143. The insurance policies are ExPW6/A to Ex PW6/B(contained in D21). The said insurance policies Ex PW6/A to B are the carbon copies which have been tendered in evidence, as the originals had been issued in favour of Mid RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 99 of 254 100 East India Pvt. Ltd. Therefore the carbon copies being the primary evidence being the copy of the original having being issued to the borrower have been duly proved, as per provisions of Evidence Act, even otherwise attested copies of the insurance policies have also been proved by PW7 which are D3 to D7. It is the case of the prosecution that M/s Mesco had obtained insurance policy from UIICL Divisional office, New Delhi incorporating the interest of IFCI on plant and machinery. In this regard PW7 Pramod Kumar from Divisional Office UIICL has proved the insurance policies which are Ex PW7/A to ExPW7/D which are the insurance policies for the period 01.06.93 to 31.05.94. All the said policies were subject to bank clause attached with respect to the factory at Noida, Ghaziabad, UP in which the interest of IFCI was clearly mentioned as per form C, which was attached with the fire policy.
144. However, it is admitted case of the prosecution that the insurance policies to which the present case pertains, which were bought by Mid East India Pvt. Ltd from UIICL covering the period in which fire took place at their factory at Noida did not mention the interest of IFCI. Though the said RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 100 of 254 101 insurance policies ExPW6/A to ExPW6/B(D21) were also subject to agreed bank clause. However as per form C the interest of IFCI was not mentioned, though the interest of Syndicate Bank, State Bank of Patiala, State Bank of Hyderabad etc., were mentioned in the said fire policies. Even though as discussed above, as per the agreement D50 and D51 the IFCI had full interest over the plant and machinery installed at the factory premises and it has been proved by PW7 vide ExPW7/A to ExPW7/D(D4) that the Mid East India Pvt. Ltd had been taking insurance cover for 01.06.1993 to 31.05.1994 showing the interest of IFCI, as the said policies were also subject to the agreed bank clause.
145. Now it is not clear why Mid East India Pvt. Ltd did not incorporate the interest of IFCI, though the insurance policies ExPW6/A to ExPW6/D were also subject to the bank clause and the interest of other lenders including State Bank of Patiala, State Bank of Hyderabad etc., was mentioned in the insurance clause as per form C attached therewith. It is admitted case of the parties that fire took place in the factory of Mesco at Noida on 17/180695 in which plant and machinery, stock & building which were insured as per policies RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 101 of 254 102 ExPW6/A to ExPW6/B suffered heavy damage pursuant to which intimation of fire was given to UIICL, as also to Oriental Insurance Company who had also insured the factory premises for the assessment of the loss. As already discussed in the previous para(s) that the UIICL took steps for the appointment of Surveyors, who gave their three interim reports and payment(s) of Rs. 3.6 crores, 2 crores and finally Rs. 13837599/ were duly approved by the board of UIICL and vide cheque(s) prepared in the name of Mid East India Pvt. Ltd. The said amounts were deposited into the account of Mid East India Pvt. Ltd.
146. Counsel for A1 and A2 have argued that as per insurance policies ExPW6/A to ExPW6/B, there was no agreed bank clause mentioned in those policies stipulating the interest of IFCI. Therefore they were not liable to obtain any NOC from IFCI. Before the payment of insurance claim by UIICL he has argued that the insistence of NOC dated 01.03.1996, 03.01.1996 & 13.06.1996 by the UIICL was totally arbitrary and was wrongly insisted upon, as the said insurance policies did not contain the interest of the IFCI anywhere, yet there was forced and coerced to give the NOC.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 102 of 254
103
147. On the other hand, Ld. PP has controverted the said arguments and has argued that the interest of IFCI was involved and it arose arise out of the loan agreement D50 and D51 ExPW39/A and PW39/L and the previous insurance policies for the period 01.06.1993 to 31.05.1994 taken by Mid East India Pvt. Ltd ExPW7/A to D shows that interest of IFCI was clearly mentioned therein and the borrower i.e Mid East India Pvt. Ltd was under an obligation to get the plant and machinery insured at all the times during currency of loan agreement to look after the interest of the lender i.e IFCI and their previous conduct incorporating the name of IFCI in previous policies also shows that they were fully aware of the said fact.
148. Counsel for accused persons have also relied upon the judgments Modern Insulators Ltd., 2002 SCC 734, as also United India Insurance Company 2007(1) SCC 368 in support of the said contentions, wherein it has been held that it is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from nondisclosure of the facts which RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 103 of 254 104 the parties know. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose all material facts in their knowledge since the obligation of good faith applies to both equally. It has also been held in the said judgment that since in the exclusion clause there is no mention of "Subsidence", therefore this ground taken by the appellant company and by the Surveyor to defeat the claim, is absolutely unwarranted.
149. Relying upon the said judgment as also judgment of Bank of India 5 SCC 313 and National Insurance Company Ltd 4 SCC 105 wherein it is held that the true construction of the agreement must depend upon the import of words used and not upon what the parties choose to say afterwards and it would be for the insurer to show that the case falls within the exclusionary clause. In case of ambiguity, it is trite, the contract of insurance shall be construed in favour of the insured.
150. Relying upon the said judgment(s) he has argued that insurance claim did not contain the interest of IFCI anywhere in the form C, the same cannot be therefore RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 104 of 254 105 imported into the insurance policies ExPW6/A to ExPW6/B. Therefore UIICL as well as IFCI were totally wrong in insisting for issuance of NOC which Mideast was forced to obtain under duress.
151. The proposition of law laid down in the said judgments is not in dispute. However, in my respectful view the said judgments are not applicable to the peculiar facts and circumstances of the present case, rather the said judgment goes against the accused persons. The very fact that accused persons had been mentioning the interest of IFCI in the previous insurance policies covering the period 01.06.1993 to 31.05.1994 contained in ExPW7/A to PW7/D shows that they were fully aware that IFCI also had a lien over plant and machinery and other goods insured from UIICL, as they had taken Indian currency as well as foreign currency loan from them vide ExPW39/A and ExPW39/L, despite knowing full well that IFCI had preexisting lien over the loan which was subsisting, yet they did not incorporate the said interest in the said insurance policy for the reasons best known to them, as the principle of law relied upon by Ld counsel for accused RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 105 of 254 106 persons in the judgment (SUPRA) that it is the fundamental principal of insurance that utmost good faith must be observed by the contracting parties and good faith forbids either party from nondisclosure of the facts which the parties know.
152. In the present case Mideast was under an obligation to disclose to UIICL that IFCI had interest lien over the plant and machinery and other goods which were insured vide policies ExPW6/A to ExPW6/D, as also which are the policies relevant in the case that on the date which fire took place at the factory of Mid East India Pvt. Ltd.,at Noida w.e.f 17/180695. However, the perusal of letter ExPW2/A written by Mesco to the IFCI dated 01.03.1996 for the issuance of first NOC shows that there is admission on the part of Mid East India Pvt. Ltd. in writing the said letter to IFCI in which they have submitted that in order to get release of payment of Rs. 3.75 crores, as interim account payment towards the loan of factory, plant & building and machinery they request that NOC be issued in favour of insurance company for release of interim account payment.
153. The said letter clearly shows admission on the part of Mid East that IFCI had lien over the factory, building, plant & RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 106 of 254 107 machinery, that is why they submitted the said letter to IFCI for issuance of NOC. IFCI did not know till that date any NOC was required or that Mid East India Pvt. Ltd., had already lodged claim with UIICL for reimbursement of fire claim. Further the previous letter dated 19.12.95 ExPW2/C written by Mid East India Pvt. Ltd., to IFCI in which it is clearly stated that "after their close scrutiny and checking the team of the surveyors require a letter from IFCI stating that IFCI has financed two Shoe lines with a installed capacity of 2000 pairs per day with a cost of US $ 97,8095. The aforesaid shoe lines are installed at B12A, Phase1, Noida and IFCI has exclusive charge on the machinery and IFCI is a beneficiary under the policy in respect of such machinery"
154. It is also written in the said letter that factory was insured with UIICL and the machinery installed at the Shoe factory was financed by IFCI as phaseI of the Shoe Project vide their sanction letter dated 23.05.1991. The said letter clearly shows admission on the part of Mid East India Pvt. Ltd., that IFCI had exclusive charge over plant & machinery with RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 107 of 254 108 respect to factory under fire. Therefore principle of estoppel applies and Mid East India is estopped to say later on that no NOC was required rather it seems that Mideast mislead the IFCI as well as UIICL by not mentioning the interest of IFCI in insurance policies, UIICL could have even rescinded the contract on the basis of fraud which vitiates every contract.
155. As already discussed in view of the judgment relied upon by the accused persons themselves i.e Modern Insulators & Ors SUPRA the contract of insurance are contract of utmost faith. The utmost good faith must be observed by the contracting party and good faith forbids either party from nondisclosure of the facts which the parties know. In the present case Mideast was knowing full well that the interest of IFCI was there in the plant and machinery as well as stock in view of the agreement ExPW39/A and Ex PW39/L, infact they had been mentioning interest in the insurance policy of IFCI for the tenure w.e.f 01.03.1996 to 31.05.1994 contained in ExPW7/A to ExPW7/D, yet the interest of IFCI was not mentioned deliberately in the insurance policies ExPW6/A to D for which fire claim RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 108 of 254 109 reimbursement was sought. The Mid East by writing the letter dated 01.03.1996 ExPW2/A and ExPW2/C dated 19.12.95 is clearly estopped from saying that the interest of IFCI was not involved in the insurance policies, therefore neither the UIICL, nor the IFCI were right in asking for NOCs from them. It has been held in judgment(s) (i) BSNL Vs. Subhash Chandra Kanchan 2006(8) SCC 279 as under:
"Right possessed by person if waived, enforcement thereof cannot be insisted."
(ii) DDA Vs. Ravinder Mohan Aggarwal AIR 1999 SC 1256 as under:
"estoppel does not operate, where consideration of public policy are involved"
(iii) Parsun Roy Vs. Calcutta Metropolitan Development Authority (1984) 4 SCC 217 as under:
"Principle of acquiescence
applicable where party challenges
the proceedings after long
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 109 of 254
110
participation therein without any
objection."
156. In view of the said judgment(s), the Principle of estoppel acquiescence and waiver would apply in the present case, as Mid East or accused persons never challenged the insistence of NOC by IFCI or by UIICL till date by filing any suit for declaration or writing any letter to them that they are wrongly insisting for issuance of NOC, as it was not required, rather their own letter(s) dated 01.03.1996 ExPW2/A and Ex PW2/C dated 19.12.1996 show admission on their part that the interest of IFCI was involved who had a charge over their plant and machinery and other articles insured against the fire claim and they had submitted their own letters to the IFCI for issuance of NOC. Now they cannot be allowed to turn around and say that NOCs were not required, once they have acquiesced and waived their right by long participation in the said process.
157. Regarding arguments of Ld. Defence counsel that there is no estoppel against the statue, as the contract of the insurance nowhere mentions the interest of IFCI. Therefore RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 110 of 254 111 Principle(s) of Contract Act will apply and the principle of estoppel would not be available against the provisions of contract Act. The said argument of Ld. Defence counsel is also without any substance, as the principle of no estoppel against a statue does not apply to the present case, as accused are claiming their right through contract arising out of insurance policies of UIICL. Both the IFCI and UIICL are creatures of parliament acts, rather there are statutory rights in favour of IFCI which is the public financial institution U/s 4 of the Companies Act. Therefore there are no statutory rights in favour of accused proved in this case, therefore principle of no estoppel against a statue is not applicable or available to the accused.
158. To sum up from the aforesaid discussion it is held that the NOCs were rightly insisted by the surveyors of UIICL as well as by the board of UIICL as well as by the IFCI for the reimbursement of the insurance claim.
159. Now it will be discussed, whether NOC dated 01.03.1996 had been rightly issued by the IFCI more specifically by A3 after following the norms regarding the issuance of NOC(s) and it would be discussed hereinafter in RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 111 of 254 112 detail, whether NOC(s) dated 03.05.1996 and 13.06.1996 were indeed given by the IFCI or they were forged and fabricated documents which had been forged by A1 and A2 in conspiracy with A3.
FIRST NOC DATED 01.03.1996
160. Regarding processing of first NOC dated 01.03.1996 D53 Page 91 ExPW2/B, with regard to this NOC dated 01.03.1996 the letter of even date was written by Mid East India Pvt. Ltd., to the IFCI which was signed by Sh. Shanti Swaroop Batra, the said letter was addressed specifically to Sh. B.B.Huria, General Manager requesting that issuance of NOC which was required for recovery of interim account payment of Rs. 3.75 crores. The said letter was proved in defence by DW5 Sh. Shanti Swaroop Batra who was working as Company Secretary with Mid East India at the relevant time. He has stated in his deposition as DW5 that letter Ex PW2/A bears his signatures at point 'X'. PW20 Sh.Sanjiv Bhatia who was working as Chartered Accountant with Mid East has also stated that Mr. Shanti Swaroop Batra was the Company Secretary in the Mid East in the year 1996.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 112 of 254
113
161. Letter ExPW2/A was addressed to Sh. B.B.Huria who has been examined as PW2. He in his deposition has stated during 1995 and upto April 1996, he was working as General Manager in the regional office of IFCI. Letter Ex PW2/A was received from Mideast on 01.03.96. He had dealt with the said letter and his endorsement is at point A on this letter, which is in his handwriting an signatures. Thereafter he marked this letter to Mr. Shinghari, D.G.M. vide endorsement at point B Mr. Shingari marked this letter to Y.V.Luthra, Manager. He identified the signatures of Y.V.Luthra. The endorsement at point C is in the handwriting and under the signatures of Mr. Y.V.Luthra. The NOC ExPW2/B was issued by Sh. Y.V.Luthra(A3) and he identified his signature at portion A.
162. In his cross examination he has stated that on receiving the letter ExPW2/A, he checked the position of Mid East, from the Accounts Department on phone before making the endorsement at point A. However, he did not check up from the files if there was any necessity of issuing NOC in terms of the loan agreement. He also stated in his cross examination that he does not remember how many hours or RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 113 of 254 114 minutes before receiving the letter dated 01.03.1996, the matter had been discussed with Ms. Rita Singh. The overdue position was checked by him from Accounts and MIS Department. He does not remember if the words "most urgent" were written by R.S.Shingari on his own or on his directions. Normally, if he wanted to get the report urgently, he would have written of his own. Even if there was no overdue or default he would have asked the department to process. If there was no default, he was the officer competent to issue NOC. In case of default, he was not competent to issue NOC. He made enquiries from accounts department and MIS.
163. Corroborating the testimony of PW2, is PW28 Sh. Roshan Lal Shangari to whom the said letter was marked by PW2 for further action in the matter. PW28 Roshan Lal Shangari has deposed that he was posted as Deputy General Manager(Project Department) and after seeing the letter dated 01.03.1996 ExPW28/A(which is the photocopy of letter Ex PW2/A) he stated that this letter ExPW28/A contains his signatures as it was marked to him. He had marked this letter to Y.V.Luthra to confirm, whether there was no dues of the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 114 of 254 115 party before issue of NOC. In this letter writing portion marked B was of B.B.Huria, General Manager who had also recorded that NOC should be issued after clearance. He had talked with Sh. Y.V.Luthra who had informed him and confirmed in writing that there was no dues outstanding. Sh. Luthra had recorded the note encircled in red colour at point C.
164. He was also subjected to cross examination by all the accused persons. In his cross examination he has stated that most probably the handwritten portion ExPW28/A was existing at point X when he marked it to Mr. Luthra. He does not recollect on whose instruction "most urgent" was written on this letter now, nor he remembers, what was the urgency. He further stated that in the year 1992 he was having dealing with Mid East India Ltd. He cannot tell prior to 1992, for a long period installments were received properly from this company. He does not remember whether any cheque prior to the cheque was dishonoured. He does not remember when he received information that Y.V.Luthra had issued NOC, whether it was issued on 01.03.1996, as he had recorded so.
165. In his cross examination he stated that it was RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 115 of 254 116 correct that in this case punishment of 25%, deduction of his pension was awarded to him for a limited period and it was correct that he was also facing a trial of CBI in Karkardooma Court, relating to Malvika Steel Ltd. Mr. B.B.Huria is also accused in that case. In view of this fact stated by PW28 in his cross examination that he also suffered punishment of 25% deduction of his pension and he alongwith Mr. B.B.Huria was also accused in another case pending before Karkardooma Courts, the credibility of testimonial deposition of PW28 has been diminished to some extent.
166. Thereafter prosecution has examined PW3 Sh. Ganesh Chand who was also working in IFCI during the relevant time as D.G.M(Accounts). He has explained the process of issuance of NOC, as he has stated that on receipt of an application from the party for NOC, the project department used to enquire in writing from the Accounts Deptt., about the dues of the party. The Accounts Department used to supply application about the dues from the parties if any, hence sent it to the project department who took further action. He also deposed that there was no provision of making oral confirmation relating to overdues. After seeing ExPW2/A RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 116 of 254 117 he stated that same was never marked to Accounts Department. If any query was received about overdues, they used to verify from their ledgers and used to give reply in writing. He has further stated that cheque no. 224101 dated 23.02.96 was sent to the bank on 28.02.96 amounting to Rs. 58,92,174/. Copy of the cheque lodge register is ExPW3/P. The relevant entry is encircled Red at point 'A' at No. 1499. The cheque dated 23.02.96 was dishonoured and they came to know about the dishonour of cheque on 01.03.1996 from the bank statement ExPW3/Q. The company gave another cheque of the same amount which was lodged with the bank on 11.03.96. The said cheque no. is 224117. The copy of the cheque lodge register is ExPW2/R. The said cheque was cleared on 13.03.96. The bank statement showing credit of this cheque is ExPW3/5.
167. In his cross examination he has stated that their peon used to bring the statement from the bank every day. They used to learn about dishonour of cheques from the bank statement. On the same day they informed their Chief General Manager Mr. Huria about the dishonour of the cheque. Action was to be taken by the project department. It was initiated by RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 117 of 254 118 the concerned officer. He does not know who was the concerned officer of the project department qua this case. He personally used to go to the Chief General Manager in the early hours of the day and inform him the balance available in the account after receiving the bank statement. They also used to inform him about the dishonour of high value cheque. He had informed him about the dishonour of the particular cheque on 01.03.1996.
168. PW8 is Sh. Sneh Prabha, another witness examined by the prosecution. She was also working in Accounts Department of IFCI as Manager at the relevant time. She has also explained the procedure for issuance of NOC. She stated that first of all the party was required to apply to project department for issuance of NOC. Project department used to write to account department to report regarding dues of the said party. The accounts department i.e she herself used to verify from rupee loan, FCL, financial services etc., thereafter she used to give report and sent back to the projects department. Oral confirmation regarding dues was not permissible and she never confirmed the dues position orally. She has also stated in her cross examination that whenever RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 118 of 254 119 any document was received in IFCI, it used to be stamped with the stamp of received and entered into receipt register. Similarly the documents dispatched were also entered in the Dispatch register, however she has not produced any such register.
169. PW31 another prosecution witness was examined by the prosecution to corroborate the testimony of PW2, PW28 and PW3 and PW8. PW31 is Sh. R.S.Biswas who was also working with IFCI. He stated that he knew Mr. Y.V.Luthra. He was then Asstt. General Manager. He was dealing the projects. For obtaining NOC party used to send his request to the project department. Project department used to refer the same to them for no dues/clearance and for no default certificate. They used to mention in their note with regard to any default if existed there and if no default existed then they used to mention no default. After seeing ExPW2/B he stated that same was having signatures of Mr. Y.V.Luthra. No clearance was sought from him in terms of letter ExPW2/B dated 01.03.1996 and they used to issue NOC in writing. The same procedure was being followed in every no objection certificate. Nothing has come out in his cross examination.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 119 of 254
120
170. There is one more witness examined by the prosecution to corroborate the testimony of PW31 namely PW39 Sh. Shivaji Gunware. He has deposed that at the relevant time he was working as Assistant Manager in Accounts Department. After seeing the ExPW2/B which is NOC dated 01.03.96, he stated that in order to issue NOC clearance was required from Accounts Department. If there are dues outstanding to the party NOC cannot be issued to that party. Accused Luthra had never taken No Dues Clearance from him, nor he enquired from him in this regard. He has seen ExPW3/P i.e Cheque Register. The cheque dated 23.02.96 of Mid East India Ltd., was not cleared on 01.03.1996.
171. In view of the overwhelming testimonies of PW2, PW3, PW28, PW8, PW31 and PW39 it has clearly been established that on the date, when the first NOC dated 01.03.1996 was issued ExPW2/B, there was an outstanding to the tune of Rs. 58 lacs towards the loan account of Mid East and no confirmation in writing was obtained from the accounts department. Infact PW3, PW31 and PW39 have all stated that A3 never took No dues certificate from them with regard to RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 120 of 254 121 issuance of NOC dated 01.03.1996. They have categorically stated that there was no procedure for oral confirmation of dues. The relevant documents have also been produced by the said witnesses to show that as on the date of issuance of NOC dated 01.03.1996 there were dues of approximately Rs. 58 lacs standing in the account of Mid East India Ltd., yet the NOC was issued by the A3. The said overdues position is duly reflected in ExPW4/B(D56).
172. As there was outstanding principal amount of Rs. 41 lacs as well as interest component of Rs. 17.5 lacs as on 01.03.1996. The very fact PW2 Mr. B.B.Huria had written at portion A on ExPW2/A that they may accord NOC subject to the payment of overdues aggregating Rs. 58 lacs shows that he must have been aware that there was a default in the loan account of Mid East India Ltd, that is why he categorically wrote so at portion A on the said letter, despite knowing full well that there was a endorsement of General Manager in this regard accused in wanton disregard of the said directions, when the said letter was marked to him by PW28 Sh. Roshan Lal Shangari, without marking the letter to the Accounts Department which was competent to say, whether there was RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 121 of 254 122 any default or not in the account of Mid East, on his own issued NOC in writing, without confirming whether there was any default from the accounts department.
173. All the prosecution witnesses have stated in one voice that the said letter was never marked to the accounts department for confirmation and oral confirmation of the dues was not possible, though accused had sought to diminish the probative force of the testimonial deposition of prosecution witnesses PW2, PW28, PW3, PW8, PW31 and PW39 by examining DW3 Satpal Arora who was also working with IFCI in the vigilance department. He in his cross examination has stated that there was a practice of confirming from accounts department on telephone and Mr. Luthra confirmed the letter that no default as confirmed by the accounts department. However, his testimony appears to be of hearsay nature, as he has also stated in his cross examination that he cannot say at which point of time the letter ExPW2/A was received in IFCI on 01.03.1996, as he was not working in this branch of IFCI in 1996.
174. Therefore this part of the testimony of DW3 that Mr. Luthra had confirmed from accounts department on telephone RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 122 of 254 123 is only hearsay, which is not admissible in evidence. In any case, rule of corroboration in the appreciation of evidence is a safeguard to rule out the testimonial error, which may crept in the testimony of a single witness. By the rule of confirmation of facts, it is considered prudent that if two or more persons are confirming to the same fact in the same manner then testimonial errors which may have crept in the testimony of any single witness due to the observation error, bias or objectivity in the testimony of said witness could be ruled out. There is overwhelming testimony of prosecution witnesses as discussed above, who have said that there was no procedure of oral confirmation of no dues from the accounts department. Therefore the testimony of DW3 has to be discarded, being a hearsay piece of evidence as discussed above.
175. Therefore, it has been proved by the prosecution that whilst issuing NOC dated 01.03.1996, A3 did not confirm from the account department regarding the existence of dues in the loan account of Mid East, yet he issued the same without confirming from them. The defence of the accused is that he had been dealing with Mid East since the year 1992 and there had never been any default or bouncing of the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 123 of 254 124 cheque, NOC was issued after the cheque had been received which was in transaction on bonafide belief that the said cheque on presentation will be honoured in due course and paid. CW1 Sh. Ashwani Kumar Sharma has deposed that he could not trace the cheque no. 224101 dated 22.02.1996 for Rs. 58 lacs, Rs. 92174/, they usually wait for 45 days after dishonour of cheque, if no payment is received within 45 days action is taken U/s 138 of N.I.Act. He also deposed that since payment was received within the period, no action was taken. The said testimony of CW1 does not help the case of accused in any way, as there is categorical deposition of PW3 Sh. Ganesh Chand that the said cheque bearing No. 224101 dated 23.02.96 was dishonoured on 01.03.1996, which was known to them vide bank statement ExPW3/Q. Copy of the cheque lodge register is ExPW3/P. The testimony of PW3 is also backed by the above document, it may be that IFCI did not took any action against Mid East due to various reasons that does not in any way dilute this fact that as on date of issuance of NOC dated 01.03.1996, there was an default of Rs. 58 lacs, which was only cleared, when the Mid East gave another cheque dated 13.03.1996 of the same amount.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 124 of 254
125
176. Regarding the culpability of the A3 vizavis Section 13(1)(d)(iii) PC Act and also with regard to the conspiracy part the same shall be discussed later on in the following paras.
NOC(s) dated 03.05.1996 and 13.06.1996
177. Now coming to the discussion on the point, whether the NOC(s) dated 03.05.1996 and 13.06.1996 were forged and fabricated and were never issued by IFCI and also the contrary contentions of the accused persons that the originals of NOC dated 03.05.1996 and 13.06.1996 always existed and they were issued by IFCI and were sent directly by them to UIICL, before taking the plunge. Testimony of PW11 would be relevant. PW11 is Sh. D.Roy Choudhary Commissioner of Income Tax(Appeal). He has deposed that during March 1997 he was posted in Income Tax Department(Investigation Wing) as Assistant Director Investigation Unit III1 Delhi. In continuation of the earlier search in February 1997, he conducted the search alongwith Mr. Sanjit Singh and Rakesh Gupta both Assistant Directors alongwith Inspectors at Mideast India Ltd, Mesco Tower, RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 125 of 254 126 Zamrudpur Community Centre, Kailash Colony, Delhi. In March 1997, which was in continuation of the search conducted in the same case in February 1997. The inventory of the documents and other articles seized during the search was prepared on the spot. He also prepared the panchnama which is ExPW11/1 which bears his signatures at point B. The said panchnama had been signed by Ms. Natasha Singh, Director of Mideast India Ltd., at Mark A dated 07.03.97. Annexure III is the inventory of bank accounts prepared on the spot, which bears his signatures at point A on is ExPW11/2. Annexure II is inventory relating to cash found during the course of search, but not seized which is ExPW11/3, which also bears the signatures of Mr. Rakesh Gupta at point A & B, who was another authorized officer for search. Annexure AAA is related to the inventory of books of accounts and documents found and seized from the said premises which is ExPW11/4, which bears his signatures at point A on all the pages and party and two witnesses. The documents compiled in D27 pages 1 to 25 were found and seized and the seal was affixed on these documents. The said documents are exhibited as ExPW11/5(colly).
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 126 of 254
127
178. He has been subjected to lengthy cross examination by Ld. Defence Counsel. However, nothing has come out in his cross examination, which could show that the said documents were not seized during the search/survey conducted by the Income Tax Department or the same were planted by them. Though in his cross examination he has stated that the loose sheets of the file were recovered and after scrutiny of the same whatever they found relevant/incriminating was taken into possession by them and then various bunches were made, these bunches were made in the premises searched in presence of the witnesses and the representatives of the parties. The witness was also shown the panchnama ExPW11/1, wherein it did not contain the fact of sealing of bunches. The witness was also shown the inventory ExPW11/3 and ExPW11/4, which also did not contain the fact of sealing of bunches.
179. Since in this case, certain loose documents were seized from various places in the premises of Mid East, it stands to reason that the relevant documents of the same nature would be bunched together by the search team, so as to put them at one place and the documents which were not RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 127 of 254 128 relevant, or which were of no consequence could be separated from the documents which they considered relevant/incriminating, there is nothing illegal about the same. Investigating/survey team was not bound to put all the documents in one book, also including the documents, which they found were totally irrelevant in nature.
180. PW11 has also deposed that documents seized by them might have been taken into possession from various premises and thereafter converted into bunches. From the inventory ExPW11/2 to ExPW11/4 it cannot be said that the documents contained therein were taken from which floor. He also stated that the access of the premises H1 Zamrudpur was not barred during the search to any concerned person and he cannot say which document was seized or recovered by which officer and from which floor.
181. There is nothing surprising in the said testimony, as the head of a survey team whose deposition was recorded in the court in the year 2008, after a lapse of 11 years is not expected to remember all the vivid details, as to from which floor of the office of Mid East, which document was specifically recovered as it was not necessary to record the said fact RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 128 of 254 129 which had nothing to do with the recovery of the said document.
182. Even otherwise, the said seizure memo ExPW11/1 was seized by PW44 DSP Sh. R.S.Dwiwedi which is Ex PW44/B contains the panchnama ExPW11/1 to ExPW11/4. Said Panchnama ExPW11/1 bears the signatures of PW27 S.S.Dash who has deposed that he was working at the relevant time with Mesco Airlines as executive secretary at Zamrudpur, Kailash Colony. His normal duties was to take down dictation and other official work. He deposed that search was conducted at Mid East India Ltd by income tax authorities and he was present during the search. He had seen panchnama ExPW11/1 which contains his signatures at point A. He had also seen ExPW11/2 to PW11/4, they all contain his signatures at point X. Mr. B.B.Sharma was also with him during the search.
183. In his cross examination he stated that search continued for 2 days, it was only taken once in his presence and he does not remember the details of the documents seized and he signed the documents whatever document were shown to him. He does not remember whether separate RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 129 of 254 130 inventory was prepared for the documents on each day or a consolidated inventory was prepared. However, he denied the suggestion given by the defence counsel that it is incorrect to suggest that he was forced to sign the panchnama by the income tax authority, whereby denying the claim of the defence that said document was got signed from the said witness by exercising coercion.
184. Prosecution has not examined the other witness who was the witness to the panchnama ExPW11/1to Ex PW11/4, rather it seems that the defence has filled up the said deficiency left in the prosecution case in this regard by examining DW4 Sh. Bacha Babu Sharma. DW4 has deposed that he was working in Mesco Airlines since 1994 and the office of Mesco Airlines and that of Mid East was situated in the same building i.e H1, Zamrudpur Community Centre, Kailash Colony, Delhi. There were four floors in the said building plus basement. He stated that a search was conducted by Income Tax Department in the building relating to all the companies situated in the building on 26/27021997. Income Tax Officers were supervising the search informed them on 27.02.1997 that search operation could not be RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 130 of 254 131 completed by that time and so they were sealing the entire building. No panchnama was prepared for the search conducted upto 27.20.1997. Search was conducted by the Income Tax Officers again in the building on 06/07031997. The seal of the said building was not opened by Income Tax Officers in his presence.
185. However, he stated that panchnama ExPW11/1 bears his signatures on the last page at point Z. The inventory(in two sheets) to the panchnama ExPW11/2. Annexure 3 bears his signatures at points X and Y. The inventory(Annexure 2) ExPW11/3 bears his signatures at point Z. The inventory ExDW4/A(Annexure OO) to the panchnama bears his signatures at point Z. Ex PW4/B(Annexure O) to the panchnama bears his signatures at point Z, which is ExPW11/4(Annexure AAA) to the panchnama(in 5 sheets) which also bears his signatures at point Z on each page.
186. He was subjected to cross examination by Ld. SPP for CBI. He corroborated the testimony of PW27 S.S.Dash that he was present at the time of search. He also deposed that it was correct that he was also present in the premises RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 131 of 254 132 when search was conducted by Income Tax Officers on 26/27021997. He also stated that panchnama ExPW11/1 was prepared on 07.03.1997, he had signed the said panchnama at point Z on the last page, the same also bears signature of Ms.Natasha Singh at point A. He identified the signatures of Natasha Singh. Mr. Dash also signed at point X in his presence. He also deposed that he was not forced by Income Tax Officers to sign the documents and it was correct that it was possible for him to refuse signing the documents ExPW11/1 to ExPW11/4.
187. In view of the said testimony of DW4 that he was very much present at the time of conducting of search by the Income Tax Authorities. He was witness to the panchnama Ex PW11/1 to 4 of which annexure AAA was also the part. The Director of Mid East India Ltd Ms. Natasha was also present at the time of survey on 07.03.1997, which lends credibility to the said survey conducted by PW11, as the same was witnessed by PW27 and DW4, two witnesses of Mid East India Ltd/Mesco who were the employees of the said company and also by one of the Directors Natasha Singh, even the copy of panchnama and annexures were given to them after search.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 132 of 254
133
188. Ld. Defence counsel has argued that no other public person was joined in the said survey, therefore the same is vitiated. The said argument is without any substance, as the Income Tax Authorities were not under any obligation to call the outsiders to witness the panchnama, rather they chose the very own employees of Mid East/Mesco who have admitted that the said search was conducted in their presence and they were not under an obligation to sign, nor they were threatened or coerced by the Income Tax Authorities to sign upon the documents/panchnama. Infact it has been stated by IO in ExPW44/B that the item No. 91 of Annexure AAA of panchnama dated 07.03.1997 containing loose papers from pages 1 to 25 were sealed with the tag and placed in the file cover captioned "file no. 20Insurance claim B12A, Phase II, Noida" with marking AhnAAA91".
189. There is nothing illegal about bunching of the relevant documents at one place by the part IO PW44 Sh. R.S.Dwiwedi, as he would only bunch those documents which would be necessary for the disposal of the present case. In any case, Income Tax Authorities had no axe to grind against RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 133 of 254 134 the accused persons with regard to these documents, as the said documents did not appear to them to be relevant for assessment of the Income Tax or allied purposes.
190. Now adverting to the next part, whether NOC dated 03.05.1996 was forged and fabricated and same was never issued by IFCI. In this regard testimony of PW8 is relevant. PW8 witness Sneh Prabha appeared on behalf of prosecution stated that she was working as Manager Accounts at the relevant time with IFCI. She stated that there was only one file pertaining to NOC in respect of one party and she had seen file(D53), the same was only file for dealing with NOC of all the parties including Mid East India Pvt. Ltd. All the correspondence regarding NOC are in the said file. The correspondence from 1995 to 1988 containing pages 1 to 91 are in the file. In case NOC is issued an office copy used to be kept in the file. She has seen file D53 and there is no other NOC except the NOC ExPW2/B issued to Mid East India Ltd.
191. In her cross examination she has stated that she had not been shown any note sheet in the file D53 purporting to show the request for issuing NOC. The document kept in file D 53 are not date wise. She was not in a position to tell the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 134 of 254 135 name of the official who was maintaining file D53 in the Project Department. Whenever any document is received in IFCI it used to be stamped with the stamp of received and entered into receipt register. Similarly the documents dispatched are also entered in the Dispatch Register.
192. Relying upon this part of cross examination of PW8 Ld. Defence counsel has argued what sort of file D53 was, which was not date wise, nor there was any dispatch register produced regarding the dispatch of NOC to the parties, nor any register has been produced to show the receipt of said request from the parties, it was haphazard file which shows that the original of NOC dated 03.05.1996 and 13.06.1996 had been deliberately withheld by the prosecution for the reasons best known to them. IFCI in this case had directly issued the said NOC to UIICL. They had also kept the copy of the same which they had not produced before the court at the instance of CBI, the dispatch & receipt register if produced would have proved the case of the prosecution. The said arguments of Ld. Defence counsel appears to be attractive, but the same does not appear to reason, if the copy of NOC dated 01.03.1996 Ex PW2/B could be available in the said file D53, there is no RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 135 of 254 136 reason why other NOC dated 03.05.1996 and 13.06.1996 would not be there. Even though the said file was not kept or maintained date wise. Even then it cannot be said that the said file was not the only file containing NOC issued to all the parties, the said file had been kept in the official course of business and there is no reason why if the NOCs dated 03.05.1996 and 13.06.1996 had been issued would not have been found in the said file. Be that as it may, this fact whether the NOC dated 03.05.1996 and 13.06.1996 were issued by IFCI will be discussed herein after.
193. In this regard the testimony of PW40 Rabi Lal Thapa who is the Star witness of the prosecution is relevant. He has deposed that he was qualified Company Secretary and he was working with Mesco Airlines at the relevant time and in Mesco Airlines he was handling the secretarial work. From time to time whenever his managing director Ms. Natasha Singh alloted him some assignment, he used to follow her instructions. He was shown the document contained in file D27 at page 1. After seeing page 1 of the said file on the document ExPW40/A he stated that the portion encircled in green colour wherein figure of Rs. 1,38,37,599/ was written in RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 136 of 254 137 green colour was in his handwriting, remaining portion was not in his handwriting which is the photocopy of the document. He stated that only endorsement made in green colour was in his handwriting and is dated 13.06.1996.
194. He further deposed that as far as he remembers he made this endorsement in green colour because a office boy from the office of Natasha Singh(A2) came to third floor looking for Mr. Sanjeev Bhatia who was his manager, since he was not available the said boy went back and thereafter he returned and told him that Ms. Natasha Singh(A2) is asking for him, thereafter he went to the office of Natasha Singh, that time she was talking on her phone and she gave him letter referred as above i.e ExPW40/A. Accordingly he made endorsement ExPW40/A and after he made the endorsement, she asked him to leave the documents with her, as she was talking to somebody on telephone, thereafter he left the said document and went to his office.
195. He further deposed that thereafter certain documents were given to him by Ms. Natasha Singh(A2) in the afternoon on the same day in order to fax these to Ms. Anju Chawla who was the assistant to K.D.Chhabra who was RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 137 of 254 138 the insurance consultant. The fax number was given by Natasha Singh(A2), accordingly he faxed the documents to Ms. Anju Chawla on the given number by Natasha Singh(A2).
186. He had also stated that after seeing the file D19 at Page 568, ExPW20/D1 portion encircled with red ink had been made by him in his handwriting. The said document is Ex PW40/B. The document D19 at page 568 is the copy of the fax which is already ExPW32/F. As far as he remember signature at point Q122 are of Ms. Rita Singh(A1). He identified her signatures as he had seen her writing and signing in official course of business. He was also similarly shown the document D27 at page 4, writing at portion Q3 in his handwriting. Page 4 is letter on the letter pad of IFCI, same is ExPW40/D, which is also photocopy of letterhead of IFCI dated 12.06.1996 and the stamp on above writings is of Company Secretary. He was also shown page 16 of the said file and stated that it is the letter dated 03.05.1996(photocopy). As far as he remembers the signatures at point Q7 seems to be of Natasha Singh(A2) and writing at portion Q6 in his handwriting. The signature of Natasha Singh(A2) at point Q7 is ExPW40/E. Similarly he was shown page 25 of the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 138 of 254 139 document file D27 he stated that writing mark Q13 is in his handwriting and same is ExPW40/F, which is the letter addressed to Divisional Manager UIICL and this is for payment of Rs. 13837599/.
196. He was also shown Page 23 of D27 which is the fax confirmation report. The fax was sent by him to Mr. D.K.Singh who was one of the Director of Mesco group. He also stated after seeing page 17 of the said file that portion Q8 is in the handwriting of Natasha Singh(A2), same is Ex PW40/G, this is the letter from Mid East to IFCI. He after seeing the document page 19 of the said file he stated that the signature at portion Q9 seems to be of Natasha Singh which is also a letter dated 03.05.96, same is ExPW40/H. He also stated after seeing the document no. 19 of the said file that the same is already ExPW17/DC and the signatures at point Q10 are of Natasha Singh(A2)
197. In his cross examination by Ld. Defence counsels more specifically by Ld. Defence counsel for A2 he was asked a question by the word "seems" used by you regarding signatures in the above statement means that you are not very RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 139 of 254 140 sure, to which he stated it was correct. He also made certain improvements in his testimony in the court vizavis his earlier statement recorded U/s 161 Cr.PC. However, that in no way impinges upon the testimonial credibility of the said witness, as the said witness had even closely worked with A2 at close quarters and he had also seen her writing and signing during the course of official business.
198. From the perusal of the file D27, it appears that a Forgers factory was in operation in the office of Mid East, as the said bunch of documents contained in D27 as already discussed above in detail shows that various attempts were being made to forge the said documents i.e NOC dated 13.06.1996, as figure of Rs. 138,37,599/ was written in green colour by PW40 at the instructions of A2 at point Q1 on the letter ExPW40/A dated 13.06.1996, he also made endorsement at point Q2 in green colour regarding the date and reference number of the letter, thereafter he wrote the words 'MG' on the letter ExPW40/C, which is the letter dated 12.06.1996, which is the alleged NOC issued by A3 Y.V.Luthra dated 12.06.1996. Thereafter he has also stated RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 140 of 254 141 that he wrote words 'MG' on another letter dated 12.06.1996 at portion Q4 on the document ExPW40/D, which is also alleged NOC dated 12.06.1996 allegedly issued by Sh. Y.V.Luthra A3 on which the stamp of the Secretarial department was also there. Similarly he stated that letter Ex PW40/E bears the signatures of Natasha Singh(A2) at point Q7 and Q6 which is also alleged NOC dated 03.05.1996 issued by A3 of which Q6 was in his handwriting. The said letter is ExPW32/A. There is another letter ExPW40/G which is letter dated 03.05.1996.
199. Similarly the letter dated 03.05.1996 also bears the signatures of A2 at point Q8, which is the letter Ex PW40/E. Same is a forwarding letter written to IFCI by Mideast for issuance of NOC. Surprisingly the earlier letter ExPW2/A on the basis of which NOC dated 01.03.1996 was issued was addressed to Mr. B.B.Huria General Manager, whereas this letter was being addressed to Y.V.Luthra A3 for the reasons best known to the accused persons, similarly there is another letter dated 03.05.1996 asking for the same relief i.e NOC. PW40 has stated that the said letter also bears the signatures of Natasha Singh(A2) at portion Q9. He has also stated that RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 141 of 254 142 letter dated 17.06.1996 whereby Mr. D.K.Singh was authorized to collect the cheque of Rs. 13837599/ by Natasha Singh(A2) also bears his signatures at point Q3 and that of Natasha Singh(A2) at point Q12. It appears that in this letter the final figure of Rs. 13837599/ was written which was being attempted in the initial letter ExPW40/A by the accused at the instance of accused A2 and they finally agreed to this amount to be written in the said letter.
200. Similarly there is a letter dated 06.05.1996 addressed to Mr. R.Ramalingam, Assistant General Manager, Delhi Regional Office, UIICL which is already ExPW17/DC. He stated that same bears the signatures of Natasha Singh at point Q10 which letter is ExPW40/G, which is the forwarding letter in which it is stated that Mid East India Ltd., is enclosing the NOC from IFCI India and PNB.
201. From the file D27, it appears that there was forgers factory which was in operation at the office of Mid East India Ltd., wherein various documents were being experimented and attempt was being made to forge the documents on behalf of Mid East India Ltd., in which the help RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 142 of 254 143 of PW40 Rabi Lal Thapa was also taken. Though PW40 in his cross examination has stated that by the word "seems" that he was not very much sure, but at the same time his testimonial deposition cannot be brushed aside lightly, as he has specifically identified signatures of A2 on some of the documents pointed out above. Ld. Counsel for A2 did not dare to point out to the said witness PW40 specifically in his cross examination saying that the signatures of A2 were not appearing on the portion stated by him in his examination in chief at various points, by specifically asking him that his testimony with regard to signatures of A2 was not correct and therefore he was under an obligation to specifically put these documents to witness PW40 at various places in the file D27 and then should have asked him, whether he was sure that the same bears the signatures of A2, simple one line answer that he is not sure was not enough, as the said witness had answered in affirmative and identified the signatures of A2 on many of the documents contained in file D27, after he was shown each and every document by public prosecutor. Therefore this part of his testimony in his cross examination merely diminishes the probative force of the testimonial RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 143 of 254 144 deposition of PW40 to some extent only.
202. There is another witness examined by the prosecution in this regard. He is also material witness namely PW42 Kamal Deep Chhabra who was working as insurance consultant with the Mesco Airlines. He has also stated that he worked with A2 for 45 years. He was also shown the file D27, the document at page 16 ExPW32/A, which is alleged NOC dated 03.05.1996 issued by IFCI which is ExPW32/A. He stated that though it is difficult to identify the signatures after lapse of time. The signatures at point Q7 are of Natasha Singh(A2), as she used to sign like this. He also stated that signatures on ExPW32/B, page 17 at portion mark Q8 also appear to be of Natasha Singh(A2). After seeing the document page 18 ExPW32/C he stated that portion Q9 also appears to be of Natasha Singh(A2). After seeing document ExPW17/DC Page 19 he stated that portion Q10 appears to be of Natasha Singh(A2) and after seeing the file D20 page 210 ExPW17/DA, he stated that portion Q18 appears to be of Natasha Singh(A2) and after seeing D19 page 571 he stated that the portion mark A on the document ExPW42/A are of Natasha Singh(A2) and similarly the signatures at page RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 144 of 254 145 567 at portion A at portion Q21 are of Natasha Singh(A2).
203. In his cross examination the said witness tried to wriggle out of his cross examination, wherein he had identified the signatures of A2 on certain documents, by saying that after 1999, he had no occasion to see the writing and signatures of A2, however he was shown signatures and writing of A2 in 2000 during the investigation of this case. Due to lapse of time in his examination in chief he had stated with regard to signatures/writing of A2 that it appears to be her signatures, as she used to sign like this.
204. However, this part of testimony of PW42 is not believable at the outset, as in his examination in chief he has stated that he had worked with A2 for 45 years, as he was the Insurance consultant with Mesco. The person who had worked with A2 for 45 years doing her insurance work would identify her signatures even after 20 years. Therefore it is hard to believe that PW42 had selective amnesia. When he identified the signatures of A2 on certain material documents in his examination in chief, later on it appears that due to whatever reason in his cross examination he stated so, as she used to sign like this. Since after working for such a long time RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 145 of 254 146 he would have surely known how she signed and would have not stated so in his examination in chief if he was not sure. Therefore this part of his statement in the cross examination only appears to have been spoken to, in order to wriggle out of his examination in chief to help the accused a little bit and to balance/compensate his testimony both the ways taking ambivalent stand.
205. NOCs which were available on the insurance file of this case are contained in file D20 Page 210 which is NOC dated 03.05.1996, photocopy ExPW17/DA and there is another NOC dated 13.06.1996 in insurance company file Ex PW32/F page 566 contained in D90. As discussed above PW8 the witness from IFCI has categorically stated that other than NOC dated 01.03.1996, IFCI did not issue any NOC dated 03.06.1996 or 13.06.1996. It is hard to imagine that when the NOC was never issued by the Originator of the NOC i.e IFCI, how there could be original available with the UIICL or any other person.
206. During the course of arguments the undersigned had given the following example to the Ld. Defence counsels, it is that of missing Malaysian Airlines Plane bearing number RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 146 of 254 147 MH 370, which took off from Kuala Lumpur for Beijing and later on the same was never found and was lost in Indian Ocean, at least there was clear proof of the said flight originating from Kuala Lumpur, though till date there is no proof where the said final flight ultimately destructed, to which Ld. Defence counsel could not give any satisfactory answer. In the present case PW8 has candidly admitted that they had issued NOC dated 01.03.1996 rightly or wrongly by A3, but there is no NOC available in their file pertaining to 03.05.1996 and 13.06.1996. When the said NOCs were not available with the originator/author of the NOC(s) how they could be available with the insurance company. Anyhow, be that as it may, let us see, whether any such NOC was indeed issued by IFCI directly to UIICL or not.
207. The first question which comes to the mind, if the NOC had indeed been sent directly by IFICI or UIICL, where was the need of forwarding letter ExPW17/DC dated 06.05.1996 of Mideast, addressed to Mr.R.Ramalingam, Assistant General Manager Delhi Regional Office, in which it is written that they may find enclosed with this formal letter NOC issued by IFCI, as also NOC from PNB as also no interest RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 147 of 254 148 originate from other banks. The very purpose of writing forwarding letter shows that IFCI did not send the NOC directly to UIICL, if they would have done so, there was no need of annexing the NOCs with the forwarding letter dated 06.05.1996, this belies the claim of the defence in his regard.
208. Further from the perusal of the file D27, which contains various kinds of NOCs dated 03.05.1996, 11.06.1996, 12.06.1996 and also 13.06.1996 shows that certain other NOCs were also prepared in the said forgers laboratory, as a preclude to the final NOC dated 13.06.1996 actually sent to UIICL. The said file infact shows the manner in which the forged documents were prepared in the said laboratory after due experimentation.
209. PW1 Sh. P.S.Chauhdary, witness from MTNL has stated that there was installation of phone No. 6215170 in the office of Mesco Airlines and the relevant documents have been proved by him as ExPW1/A to ExPW1/F. PW40 has also deposed that there were certain documents given by A2 to him in the afternoon on the same day in order to fax those documents to Ms. Anju Chawla who was Assistant to Mr. K.D.Chhabra who was the insurance consultant of Mesco. The RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 148 of 254 149 fax number was given by Natasha Singh and he faxed the documents to Ms. Anju Chawla on the given number by Natasha Singh(A2). The relevant document(s) in the insurance file i.e UIICL i.e NOC dated 13.06.1996 as deposed by PW40 is the endorsement at point Q19 which was in his handwriting wherein words "kind attention Anju Chawla" is written and fax number written on the same shows the fax No. 6215170, which is the telephone number installed at the office of Mesco as per testimony of PW1, which is a forwarding letter written by A1 dated 13.06.1996 intimating Divisional Law Manager UIICL New Delhi that the said letter contains NOC from IFCI and other banks.
210. As discussed above, if the original NOC had been sent by IFCI to the UIICL, then where was the need of writing this forwarding letter, also enclosing the NOC received from IFCI, since if IFCI had already sent NOC dated 13.06.1996 directly to the UIICL where was the need of writing forwarding letter, then the original would not have been in possession of the accused persons A1 and A2, rather it would have been in the possession of UIICL themselves. Though there are certain RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 149 of 254 150 facts as deposed by the prosecution witnesses which go in favour of A1 and A2, but the said testimonies are inconsistent, it would be therefore necessary to discuss the same hereunder. For instance PW26 Sh. Ashim Kumar Guha who is the witness from UIICL Regional Office Delhi has stated that letter ExPW17/DB bears the signatures of Mr. R.Ramalingam, wherein it is mentioned that NOC from IFCI had been received vide letter dated 03.05.1996. The same is the letter written from Regional office, New Delhi Accounts to Head Office Madras in which it is written as under " copy of the letter dated 03.05.1996 received from Industrial Finance Corporation Ltd."
211. Relying upon this document Ld. Defence counsel for A1 and A2 has argued that the original NOC existed and was sent by IFCI to UIICL and the said document is the testimony to the said fact. Firstly the said argument is without any substance, as it is nowhere written in the said letter Ex PW17/DB that the original NOC had been received from the Industrial Finance Corporation, it is only written a copy of the letter dated 03.05.1996 received from Industrial Finance Corporation, it nowhere says that the original NOC has been RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 150 of 254 151 received directly from IFCI. Further there is apparent mistake and contradiction in the said letter, as the said letter/communication has been sent by fax.
212. Since the original can never be sent by fax, it will always be a copy of the original. This is further explained by following document ExPW17/DC contained in D27, which is the letter ExPW17/DB written by A2 to Mr. R.Ramalingam dated 06.05.1996 and this letter ExPW17/DB is also of 06.05.1996. In the said letter Natasha Singh(A2) has written that she was sending the NOC from IFCI, therefore Mr. R. Ramalingam would have only found the NOC sent by A2 and he could not have had the NOC sent by IFCI directly to him, which clearly explains the contradiction, if any, in this argument. Therefore this letter also does not help the case of the defence that the original NOC was sent by IFCI to UIICL.
213. Further in the chain of these arguments PW30 M.J.Augustine who was working as AGM at Delhi Regional Office has stated that NOCs are taken from financial institutions, who are holding financial interest on the properties, which was the subject matter of loss. Without no objection, payment cannot be issued to the insured. NOC RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 151 of 254 152 should be original and not a photocopy. Relying upon this part of testimony of PW30, Ld. Defence counsels for A1 and A2 have argued that the original existed, but was never produced and were withheld by the prosecution. However to contradict the testimony of above witnesses PW45 Sh. Tulsi Alimchandani who was posted in the Regional Office of UIICL Delhi at the relevant time who had processed the insurance policy ExPW6/A has also deposed that there was fire in Mid East India Ltd., Noida and intimation to this fact was received in regional office. He further stated that the payments are made to the party on the basis of NOC received from concerned party insured. The criteria of payment is that NOC is required to be obtained from the party in original, thereafter payments are made. After seeing D20 which is the regional office file page 210 document ExPW17/DA, he stated that it is the fax copy of the document purported to be from the Industrial Finance Corporation of India. He also stated after seeing the document D19 page 566 ExPW32/F, same is photocopy of NOC from Industrial Finance Corporation of India and he stated that in the present case the payments were made on the basis of fax copy of NOC issued by IFCI.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 152 of 254
153
214. As discussed above, D20 ExPW17/DA is the NOC dated 03.05.1996 in insurance company file and D19 ExPW32/F page 566 is NOC dated 13.06.1996 which was found in the insurance company file. The testimony of PW45 is directly in contradiction with the testimony of PW26 and PW30. PW45 is the most relevant witness, as he is the witness who had directly processed the fire claim of the Mideast and therefore he should know what is the proper procedure for issuance of NOC. The other witnesses of the insurance company who were saying that the original NOCs were received dated 03.05.1996 and 13.06.1996 are all hearsay witnesses, since they never dealt with the processing of insurance claim pertaining to the present case. Therefore testimony of PW45 will have precedence over the testimony of other prosecution witness who had never dealt with the insurance claim, as their testimonies are of hearsay nature.
215. Regarding the NOC dated 13.06.1996, whether the same was directly sent by IFCI to UIICL PW25 Sh. Subhash Chandra who was working in Divisional Office of UIICL and who had also processed the claim regarding the fire insurance of Mid East has stated in his examination in chief that NOC is RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 153 of 254 154 required to be obtained in original before making payment to the party. The final claim was prepared after receipt of reports from the Surveyors, it bears his signatures at point A on Ex PW22/A D15 Page 184.
216. PW25 in his cross examination has stated that head office can release the payments of claim, if it was having original NOCs with it, which is the letter dated 23.05.1996. Similarly PW37 Naresh Kumar Behl another witness from Divisional Office UIICL Karol Bagh, Delhi, who had examined the fire claim of Mideast has stated in his examination in chief that NOC from Financial Institutions was required to be obtained in original before making the payment of claim. Fax/photocopy was not acceptable. He further stated that in this case, fax/photocopy had been sent.
217. Further PW37 has proved document D15 which is the letter dated 13.06.1996, which he stated was received in their office stating that same was dealt with by Sunita Sehgal. Same is ExDW37/D, which is the letter dated 13.06.1996 purportedly sent by Mideast to Regional Manager UIICL Delhi regarding the payment of Rs. 13837599/ with the words RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 154 of 254 155 "Kind Attention Anju Chawla" on the fax having the telephone number of Mesco 6215170, which is the same letter contained in file D19 page 568 which is ExPW40/B which was proved by PW40 Rabi Lal Thapa having sent by him, to Anju Chawla Assistant to their insurance consultant PW42 Sh. K.D.Chhabra, which letter is the replica of the above letter D15 ExPW37/D which was received by Regional office of UIICL, clearly contains the fax number of Mesco Airlines and was stated to have been sent by PW40 who was Company Secretary of Mesco Airlines at the instructions of A2 with the letter Marked "kind attention Anju Chawla"
218. PW45 Sh. Tulsi Alimchandani who was also posted in the Divisional Office of United India Insurance Company has stated after seeing document D19 page 566 ExPW32/F which is photocopy of NOC from IFCI. The said NOC is dated 13.06.1996, it also contains fax number 6215170 of Mesco Airlines. The said letter was received alongwith the forwarding letter ExPW40/B in the Divisional Office of UIICL in processing of final claim of Mideast India Ltd of Rs. 13837599/. The said witness PW45 has also stated in his RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 155 of 254 156 examination in chief that in the present case payments were made on the basis of fax copy of NOC issued by IFCI.
219. As discussed above, if the original had been sent directly by IFCI to UIICL as per the arguments of Ld. Defence counsel for A1 & A2 then where was no need of forwarding letter of Mideast i.e ExPW40/B, in that case the forwarding letter would have been of IFCI intimating that they were sending the NOCs dated 03.05.1996 and 13.06.1996 on behalf of Mideast. No such forwarding letter has been proved on the record. In any case, if the said NOCs had indeed been sent by IFCI then they would have had some record with them pertaining to the same. The IFCI is a public financial institution, it does not work on or can work like a proprietorship firm, it has to work under certain contours of rules and regulations, if any of the said NOCs as argued by Ld. Defence counsel dated 03.05.1996 or 13.06.1996 had been prepared, and sent to UIICL, then the same would have been reflected in the records of IFCI and if the IFCI is admitting the issuance of NOC dated 01.03.1996 then there is no reason why they would conceal the issuance of NOC(s) dated 13.06.1996 and 03.05.1996.
220. Further the fact that NOC dated 13.06.1996 was RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 156 of 254 157 sent by PW40 at the instructions of A2 is also corroborated by the receiver of the said forwarding letter ExPW40/B and the NOC ExPW32/F by the testimony of PW19 Ms. Anju C Narula. She in her testimony has deposed that in the year 1995 she was working with Sh. K.D.Chhabra who was the insurance consultant and she was assisting him. She knew Mid East India Ltd situated at Zamrudpur. In the year 1995, there was fire in the factory premises of Mid East India Ltd., and she had gone alongwith Mr. Chhabra in the office of Mid East India Ltd., in connection with discussion. In connection with work she used to visit United India Insurance Company. After seeing the letter dated 13.06.1996 addressed by A1 to United India Assurance written thereon "Kind attention Mrs. Anju Chawla", this letter is marked PW19/X, she stated that the said letter was received by her through fax.
221. In her cross examination she stated that it is correct that document Mark PW19/X(which is ExPW40/B page 568 D19) is the photocopy of the fax which was received by her and because of the endorsement in her name she was stating that the fax message was received by her.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 157 of 254
158
She also stated that the fax message was definitely received by her and CBI had also recorded her statement. However, in her cross examination, she stated that she was not sure that she received the fax message. The testimony of the said witness appears to be of vacillating nature. However, in her examination in chief she has stated that she received the fax message addressed by A1 wherein her name was endorsed and in her cross examination she has stated that fax message definitely was received by her, but in the end she stated that she was not sure that she received fax message.
222. In cross examination she reiterated that she had definitely received received the same, but at the end she diminishes her testimonial deposition to some extent that she was not sure. If her testimony was based upon observation alone, then we could have said that her testimony has been greatly diminishes by these factors, however her testimony was not based upon observational facts, rather it is based upon the documents which she had received during the official course, more so said document(s) bears the endorsement of her name and had been received by her by fax and the sender PW40 also stated that he had sent the same to her only and RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 158 of 254 159 she being the insurance consultant would have been person who would have received the same to take up the matter with the UIICL where she had been visiting with regard to the processing of fire claim of Mideast. Therefore taking her testimony as a whole, it appears that she had indeed received the said documents being sent by PW40.
223. From the above discussion, it has been clearly proved by the prosecution that both the NOCs dated 03.05.1996 and 13.06.1996 were forged and fabricated and they were never issued by IFCI. It has also been proved by the prosecution that both the said NOCs were never issued by IFCI, nor they were sent directly by them to UIICL. Now it has been clearly established that both the said NOCs were false and fabricated, same were used in the processing of two installments of fire claim of Mideast which had been released in their favour of Rs. 2 Crores and the final claim of Rs. 13837599/.
224. Now it has to be seen whether there is any evidence to prove the fact that A1 and A2 forged these documents and other documents. In this regard Counsel for A1 and A2 have argued that said NOCs are the photocopies.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 159 of 254
160
The said NOCs dated 03.05.1996 contained in insurance file D20 page 210 ExPW17/DA and NOC dated 13.06.1996 in insurance file ExPW32/F page 566 are photocopies. Therefore no offence of forgery is made out, without production of the alleged original NOC(s). In this regard he has relied upon the following judgment 2005 (121) DLT 522 Shashi Lata Khanna Vs State of Delhi, the relevant para(s) are reproduced as under:
5. Before proceeding further in the present case it may be mentioned nd that the alleged rent note dated 2 June 1983 which is stated to have been forged by the accused persons and which is stated to have been used by the accused persons knowing or at least having reasons to believe the same to be forged was never produced in original in the court. For an offence of forgery of document it is necessary that the original document should have been produced in the court.
Although it is the case of the prosecution that the original rent note was in the possession of the accused persons and they have RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 160 of 254 161 produced the same and on the other it is the case of the accused that they tendered the original rent note to the investigating officer at the time of the investigation but it was deliberately not produced by the prosecution, the fact remains is that the original alleged forged document was never produced before the court. We cannot forget that the burden to prove a criminal case is on the prosecution and quite heavy.
6. In the case of K.V.R.Iyyanger Vs State of Andhra Pradesh 1988 (2) CRIMES VIII 882 it was held, that in order to establish an offence of forgery under section 463 IPC punishable under Section 465 IPC the presence of the original document before the court concerned is necessary. Copy or photostat copy is not sufficient in order to establish offence of forgery. In the present case also the original was never produced in that court nor it was proved in the court in accordance with law hence the offence of forgery or using the said forged document has not been RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 161 of 254 162 proved. Once the offence of forgery is not proved there is no question of using the forged document as genuine. Accordingly the accused persons cannot even by convicted under Section 465/468/471/120B of IPC.
225. He has also relied upon the judgment of Hon'ble Supreme Court 1994 (Supp3) SCR 646 V.Sujatha Vs The State of Kerala, the relevant para(s) of the said judgment is reproduced as under:
23. Further case of the prosecution is that the accused similarly and fraudulently obtained a COO by forging the signatures of the Asstt. Director and used it for cheating the bank and the buyer in obtaining price payment of Rs.
4,88,501.60 for the consignment, and thereby cheated the buyer and Dena Bank, Cochin, and had made themselves punishable for a similar offence as also S.420, I.P.C. Here Ex.P15, photostat copy of the COO was soguht to be introduced as the forged document despite the fact that the original of Ex.P15 was available. The complaint of the Dena Bank with regard to their having been cheated, filed before the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 162 of 254 163 Criminal Court was quashed in a proceeding under S.482, Cr.P.C. by the High Court on the ground that what was involved between the bank and the accused was only a civil liability for which the bank had filed a civil suit.
Padmanabhan, J. expressed reservations of the view taken by the High Court but still viewed that the earlier order of the High Court may hold good, in so far as the allegation of cheating the bank was concerned, but it would not affect the prosecution case of forgery by using forged documents and cheating for the prupose of facilitating export by use of forged documents as genuine.
226. The said judgments in my respectful view are not applicable to the peculiar facts and circumstances of the present case. Since in the case of Shashi Lata Khanna(SUPRA) the fact that original rent note was in possession of the accused persons, it was the case of the accused that they had tendered the original rent note to the investigating officer at the time of the investigation, but it was deliberately not produced by the prosecution. In the present case, the facts are totally different as original NOCs dated RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 163 of 254 164 03.05.1996 and 13.06.1996 were not in possession of the prosecution, nor it is the case of the accused persons that they had submitted them to the IO during the investigation, yet it was not produced by the prosecution during the trial. Now in the present case, it is the case of the prosecution throughout that the original of the said documents never existed, the same are forged and fabricated and it was rather the accused persons who had concealed the same.
227. The other judgment V.Sujata SUPRA also does not help the case of accused persons, as in the said case photocopy of Ex P15 was sought to be introduced as forged document, despite the fact that original of said ExP15 was available which is not the case in hand, as the original NOCs dated 03.05.1996 and 13.06.1996 were not available as discussed above. On the other hand, Ld. PP for CBI has relied upon a recent judgment of Hon'ble Delhi High Court of Delhi decided on 09.07.2010 in Crl.M.C.No.2029/2010 titled as Nakul Kohli Vs State in which it was observed as under:
5. The short question in the present petition which arises for determination is that if an accused has given the coloured RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 164 of 254 165 photocopy of a visa, which is not genuine and made them to part with money on the basis of said document, whether it would fall within the ambit of an offence of forgery as defined under Sections 463 and 464 IPC and punishable under Sections 471 and 474 IPC. Sections 463, 464, 471 and 474 IPC are reproduced as under : "463. Forgery[Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
464. Making a false document A person is said to make a false document or false RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 165 of 254 166 electronic record FirstWho dishonestly or fraudulently
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any [electronic
signature] on any
electronic record;
(d) makes any mark
denoting the execution of
a document or the
authenticity of the
[electronic signature],
with the intention of
causing it to be believed
that such document or
part of document,
electronic record or
[electronic signature] was
made, signed, sealed,
executed, transmitted or
affixed by or by the
authority of a person by
whom or by whose
authority he knows that it
was not made, signed,
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 166 of 254
167
sealed, executed or
affixed;
or
Secondly - Who, without
lawful authority,
dishonestly or fraudulently,
by cancellation or
otherwise, alters a
document in any material
part thereof, after it has
been made or executed or
affixed with [electronic
signature] either by himself
or by any other person,
whether such person be
living or dead at the time of
such alteration; or
Thirdly - Who dishonestly
or fraudulently causes any
person to sign, seal,
execute or alter a
document or an electronic
record or to affix his
[electronic signature] on
any electronic record,
knowing that such person
by reason of unsoundness
of mind or intoxication
cannot, or that by reason
of deception practised
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 167 of 254
168
upon him, he does not
know the contents of the
document or electronic
record or the nature of the
alteration.
471. Using as genuine a
forged [document or
electronic record] -
Whoever fraudulently or
dishonestly uses as
genuine any [document or
electronic record] which
he knows or has reason to
believe to be a forged
[document or electronic
record], shall be punished
in the same manner as if
he had forged such
[document or electronic
record].
474. Having possession of
document described in
section 466 or 467,
knowing it to be forged
and intending to use it as
genuine - [Whoever has in
his possession any
document or electronic
record, knowing the same
to be forged, and intending
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 168 of 254
169
that the same shall
fraudulently or dishonestly
be used as genuine, shall,
if the document or
electronic record is one of
the description mentioned
in section 466 of this
Code], be punished with
imprisonment of either
description for a term
which may extend to seven
years, and shall also be
liable to fine; and if the
document is one of the
description mentioned in
section 467, shall be
punished with
[imprisonment for life], or
with imprisonment of
either description, for a
term which may extend to
seven years, and shall also
be liable to fine."
6. Thus, a perusal of the said provisions would show that if a document, which is not genuine, is being used as such and a person is made to part with money on that basis then not only the offence of cheating as defined under Section 415 IPC but also the offence of forgery as RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 169 of 254 170 defined under Section 463 IPC is attracted. The contention of the learned counsel for the Petitioner that under Section 464 IPC "making" a false document means signing, sealing or executing only is untenable. I am not in agreement with the decision of the learned Single Judge of the Calcutta High Court in Pramatha Nath (supra). In my view, photocopying a document, which is not genuine and with the kind of technology that is available now, wherein exactly similar copies of the original can be made, would fall within the ambit of making a false document. With the advent of technology, scanners and computerized colour photocopiers produce identical copies which are exactly similar to the original. Excluding photocopying/printing from the ambit of a "false document" would be giving too narrow a reading to the word 'makes' as used in Section 464 First (a) because the said word is not limited by the subsequent words signs, seals or executes. If the word 'makes' was to confine to signing or executing, then there was no need of introducing this word in the said Section. It is settled law that the words used in an enactment are RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 170 of 254 171 not superfluous. This reading of Section 464 IPC by the Calcutta High Court in Plarmatha Nath (Supra) is contrary to the illustrations 'c' and 'd' to Section 464 IPC. Moreover, this view of Calcutta High Court has been dissented to by a division bench of Bombay High Court in Emperor vs. Krishtappa Khandappa, AIR 1925 Bombay 327, where Chief Justice Macleod held as under: "The only question is whether possession of the counterfeit seal, plates or other instrument for making an impression, renders accused No.4, liable as having committed an offence under S.473, Indian Penal Code, in that he had made or counterfeited a seal, plate or other instrument for making an impression intending that the same should be used for the purpose of committing any forgery, which would be punishable under any section of Chapter 18 other than S.467, or with such intent had in his possession any seal, plate or other instrument, knowing the same to be counterfeit. It has been contended that as forgery implies RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 171 of 254 172 the making of a false document, a person counterfeiting marks on a tree would not be making a false document within the meaning of S. 464, and this contention found favour with the Assistant Sessions Judge who relied upon the decision in Empress vs. Riasat Ali (1). It seems to us that the learned Chief Justice for the purposes of that particular decision did not consider the provisions of S. 29, Indian Penal Code. The question here is whether a document must necessarily be something which is signed, sealed or executed. S.29 says "the word 'document' denotes any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of these means, intended to be used ... as evidence of that matter."
Explanation 2 says : "Whatever is expressed by means of letters, figures or marks as explained by mercantile or other usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of this section although RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 172 of 254 173 the same may not be actually expressed."
Now these letters when imprinted on the trees were intended to be evidence that the trees had been passed by the Ranger, and so could be removed from the place where they were lying in the forest.
The letters, therefore, imprinted on the trees would be a document within the meaning of S. 29 of the Indian Penal Code."
I am further fortified in my view by the decisions in The Province of Bihar vs. Surendra Prasad Ojha AIR(38) 1951 Patna 86; L.K.Siddappa vs. Lalithamma 1954 Crl. L.J. 1235 (Mysore) and Ranjit Sinha vs. The State AIR 1963 Patna 262.
228. The said judgment is the complete answer to the above arguments of Ld. Defence counsel(s) for A1 and A2 as Section 464 IPC which defines making of forged documents nowhere restricts the photocopying the document which is not genuine, whereby exactly similar of the same can be made within the definition of making the forged documents, which is exactly similar to the original.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 173 of 254
174
229. The reason for the same obviously is that original in such a case would be photocopy only. The meaning of the word 'original' is actual or existing since beginning. In this case the photocopies of NOC(s) dated 03.05.1996 & 13.06.1996 were prepared, forged, used from the very beginning, so they can be deemed to be the original, it would be totally preposterous to expect in a case, where only photocopies of forged documents have been prepared to look for non existent original(s) since said photocopies would only be originals.
230. In the present case only photocopies had been recovered at the time of Income Tax Survey in the office of Mideast/Mesco Airlines, as per the testimony of PW11 the original were never used, therefore the same would also fall within the definition of Section 464 making of forged document, there is no doubt the same has been done dishonestly as defined U/s 24 of the IPC which defines word "dishonestly" -whosoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person. In the present case it is not necessary that the prosecution should prove both the things simultaneously, one RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 174 of 254 175 is enough in the present case. Dishonest intention was to cause wrongful gain to A1 and A2 i.e they were not entitled to get NOC(s) from IFCI for whatever reason(s), they thought and in the meanwhile, giving of forged NOC to the UIICL which they had sought from them for making of interim payment of Rs. 2 crores and the final claim of Rs. 13837599/ and by submitting the forged NOCs they had induced the insurance company to pass their fire claim which resulted in loss of goodwill to UIICL, which is also valuable property, as valuable property is not only tangible things, but all things being so quantified, as IFCI would never probably due to the said conduct of UIICL may get insurance policies from them in future thinking that they do not act honestly or act negligently, A1 and A2 had fraudulent intention as well, as they had intention to defraud IFCI as well as UIICL.
231. Otherwise A1 and A2 were not required to prepare forged NOCs dated 03.05.1996 and 13.05.1996, the obvious reason which comes to the mind is that since first NOC dated 01.03.1996 had been issued wrongly by A3 despite there were overdues of Rs. 58 lacs in the loan account of Mideast, it appears that the later NOCs were not sought RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 175 of 254 176 from them, as the said fact would have come to the notice of the higher IFCI authorities as well as UIICL authorities that NOC dated 01.03.1996 had been issued without any authority from the IFCI by A3 of his own. This precisely appears to be reason for not seeking NOCs dated 03.05.1996 and 13.06.1996 from IFCI, thereby making false NOCs dated 03.05.1996 and 13.06.1996.
232. Regarding the other contention of Ld. Defence counsel that the specimen signatures of the accused A1 and A2 were obtained under duress and there was no provision at that time for obtaining their specimen signatures and same is hit by Article 20 of the Constitution of India, as it has been argued that even the Magistrate cannot direct the accused to give his specimen signatures on the asking of police or CBI and only after amendment of Cr.PC in 2005, such power had been given to the Magistrate to direct any person including the accused to give his specimen signatures for the purpose of investigations. Therefore it has been argued that taking of specimen signatures/writing of A1 and A2 are per se illegal, therefore report of the handwriting expert PW32 relied upon by the prosecution cannot be used as evidence against A1 and RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 176 of 254 177 A2. However, in this regard Ld. PP for CBI has relied upon the judgment of Hon'ble Supreme Court (2011) 1 Supreme Court Cases (Cri) 706 Rabindra Kumar Pal @ Dara Singh Vs Republic of India, in which the same point was raised, and decided by the Hon'ble Supreme Court as under:
75. Another question which we have to consider is whether the police (CBI) had the power under CrPC to take specimen signature and writing of A3 for examination by the expert.
It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen signature on the asking of the police and only after the amendment of CrPC in 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signature for the purpose of investigation. Hence, it was pointed out that taking of his signature/writings being per se illegal, the report of the expert cannot be used as evidence against him.
76. To meet the above claim, the learned Additional Solicitor General RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 177 of 254 178 heavily relied on a elevenJudge Bench decision of this Court in State of Bombay Vs Kathi Kalu Oghad. This larger Bench was constituted in order to reexamine some of the proposition of law laid down by this Court in M.P.Sharma Vs Satish Chandra.
77. After adverting to various factual aspects, the large Bench formulated the following questions for consideration: (Kathi Kalu Oghad case, AIR pp.1810 & 1812, paras 2 & 4) "2. ... On these facts, the only questions of constitutional importance that this Bench has to determine are; (1) whether by the production of the specimen handwritings, Exts. 27,28 and 29, the accused could be said to have been 'a witness against himself' within the meaning of Article 20(3) of the Constitution; and (2) whether the mere fact that when those specimen handwritings had been given, the accused person was in police custody RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 178 of 254 179 could, by itself, amount to compulsion, apart from any other circumstances which could be urged as vitiating the consent of the accused in giving those specimen handwritings. ...
4. ... The main question which arises for determination in this appeal is whether a direction given by a court to an accused person present in court to give his specimen writing and signature for the purpose of comparison under the provisions of Section 73 of the Evidence Act infringes the fundamental right enshrined in Article 20(3) of the Constitution."
The following conclusion/ansers are relevant: (AIR pp. 181417, paras 1012 & 16) "10. ... 'Furnishing evidence' in the latter sense could not have been within the contemplation of the Constitutionmakers for the simple reason thatthough they may have intended to protect an accused person RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 179 of 254 180 from the hazards of self incrimination, in the light of the English law on the subject they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice.
The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to prtect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. ...
11. ... When an accused person is called upon by the courtor any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of a 'personal RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 180 of 254 181 testimony' must depend upon his volition. He can make any kind of statement or may refuse to make any statement.
But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness'.
12. ... A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the court RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 181 of 254 182 that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony'.
16. In view of these considerations, we have come to the following conclusions (1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 182 of 254 183 consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.
(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.
(3) 'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to dertermine the guilt or innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness'.
RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 183 of 254 184 (5) 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in court or otherwise.
(6) 'To be a witness' in its ordinary grammatical sense means giving oral testimony in court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in court or out of court by a person accused of an offence, orally or in writing.
(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made."
78. In view of the above principles, the procedure adopted by the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 184 of 254 185 investigating agency, analysed and approved by the trial court and confirmed by the High Court, cannot be faulted with. In view of the oral report of Rolia Soren, PW 4 which was reduced into writing, the evidence of PW 23, two letters dated 122002 and 222002 addressed by Mahendra Hembram (A3) to the trial Judge facing (sic confessing) his guilt coupled with the other materials, we are unable to accept the argument of Mr. Ratnakar Dash, learned Senior Counsel for Mahendra Hembram (A3) and we confirm the conclusion arrived at by the High Court.
233. In view of the law laid down in the said judgment the specimen handwriting and signatures by themselves are not testimonies, they are only material for comparison in order to lend assurance to the court that its inference based on other pieces of evidence is reliable. Therefore bar of Article 20(3) of the Constitution of India against self incrimination would not be applicable.
234. In the present case, prosecution has examined PW32 handwriting expert Sh. S.L.Mukhi, retired Prinicipal RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 185 of 254 186 Scientific Officer, CFSL New Delhi. He after comparison of the admitted signatures of A1 and A2 vizavis their alleged signatures on the questioned documents gave the report Ex PW32/L. His opinion no. 4 is pertaining to the specimen handwriting and signatures of A2, whereby he has opined as under:
IV.Handwriting evidence points to the writer of the specimen writings marked S34, S34/1 to S34/14, S35, S35/1 to S35/14, S36/1 to S36/15, S37/1 to S37/15, S38, S38/1 to S38/14, S39, S39/1 to S39/14, S40, S40/1 to S40/17, S41, S41/1 to S41/13, S42, S42/1 to S42/14, S43, S43/1 to S43/14, S44, S44/1 to S44/17, S45, S45/1 to S45/14, S46, S46/1 to S46/18, S47, S47/1 to S47/14, S48, S48/1 to S48/14, S49, S49/1 to S49/14, S50, S50/1 to S50/14, S51, S51/1 to S51/14, S52, S52/1 to S52/14, S53, S53/1 to S53/14, S54, S54/1 to S54/14, S55, S55/1 to S55/14, S56, S56/1 to S56/14, S57, S57/1 to S57/14, S58, S58/1 to S58/14, S59, S59/1 to S59/14, S60, S60/1 to S60/14, S65 to S72 and A26 to A35 being the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 186 of 254 187 person responsible for writing the questioned signatures marked Q7 to Q9 due to the following reasons : The questioned signatures were written freely showing smooth line quality, natural variations. Qualities of imitation are not present in them. Interse comparison of the questioned signatures reveal consistency in the basic writing habits. The standard signatures are also written freely showing smooth line quality, natural variations and are suitable & sufficient for the purpose of comparison with the questioned signatures.
Both the questioned and the standard signatures agree with each other in the general writing characteristics such as movement, spacing, slant, alignment, relative size, proportion of letters. The skill and line quality of the questioned signatures is also found consistent with these qualities of the standard signatures.
Both the questioned and the standard signatures also agree with each other in individual writing characteristics without any material divergence. Some of the points of similarity are detailed below:
i) Manner of execution of the capital letter N with the nature of its downward start, formation of its RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 187 of 254 188 peculiar body in the top of capital B as well as its connection to the letter following S as observed in the questioned signatures marked Q7 to Q9 is similarly observed in the similar model of the specimen signatures at one place or the other.
ii) Manner of execution of the capital letter S with the nature of start, formation of its body curves, their relative sizes, direction of finish as well as its connection to the letter following is similarly observed in both the sets of signatures.
iii) Manner of execution of the small letter g in a simplified manner as well as their relative position after the capital letter S is similarly observed in both the sets of signatures.
iv) Manner of execution of the lower body loop of the small letter g and natural variations within the moderate range.
v) Manner of execution of the final letter small h with the nature of its start in continuation of the preceding letter g, simplification of its body and upward finish as well as its appearance like letter L is similarly observed in both the sets of signatures.
RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 188 of 254 189
vi) Similar habit of writing the full signature N. Singh.
vii)Similar habit of underscoring the signature and relative position of underscording.
I have not observed any fundamental difference between the questioned and standard signatures.
Cumulative consideration of the aforesaid points of similarity observed between the questioned and the standard signatures in both general and individual writings characteristic, constitute the basis of my opinion.
235. The questioned signatures Q7 to Q9 are appearing on the document ExPW32/A, also marked as PW40/E and Q8 are appearing on the document ExPW40/E, also ExPW32/B and Q9 are on ExPW32/C also marked as ExPW40/H, document ExPW32/A(ExPW40/E) is the NOC dated 03.05.1996, whereas ExPW40/E(ExPW32/B) and Ex PW40/H(ExPW32/C) are the letters addressed to IFCI "kind attention Y.V.Luthra(A3)" asking for the issuance of NOC, both of them as per the opinion of handwriting expert PW32 bears the signatures of A2.
236. The aforesaid witness was also subjected to RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 189 of 254 190 incisive cross examination by Ld. Defence Counsel more specifically for accused A2, wherein in his cross examination he has stated that he had not prepared any photographic chart during examination, as examination was made by him with the help of scientific equipments. The original documents and his opinion is on the court file. Apart from his report there is no other material on the judicial file from which the court may assess, whether his report is correct or not. It is correct to suggest that in case there is a fundamental difference between the questioned and the specimen/standard writings, it leads to the conclusion that the writings are written by different persons in case a difference observed between the questioned and standard writings is fundamental in nature.
237. He further stated that it is correct to suggest that in the specimen signatures, there is an alignment of the underscoring of approximately 15 degrees, whereas in the questioned signatures marked Q9 it is 45 degrees. He also stated that it is correct that the upper body of the capital letter 'S' is towards the left of the initial vertical stroke, whereas such exactly alike formation is not observed in the specimen signature S34. In this court, he had been shown questioned RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 190 of 254 191 signatures of A2 on Q7 to Q9 and on said Q7 to Q9 he has given his positive opinion in his first report ExPW32/L vide opinion No. 4. It is also correct to say that handwriting science is only a developing science and not perfect as fingerprint science. It is correct that underscoring the signature also plays an important role in the examination of signatures.
238. To counter the report of this expert the accused more specifically A2 has examined DW6 Sh. V.C.Mishra who is the private expert and he after examination of the admitted specimen handwriting and signatures of A2 and after examination and comparison of Q7, Q8 and Q9 was of the opinion that Q7 signature is a copied signature. It is free hand simulated forgery. He prepared his report which is ExDW6/A and he has also stated that he compared the signatures appearing at Q7 with signatures appearing Q8 and Q9 and also with the specimen signatures of Ms. Natasha Singh and after careful examination, he came to the conclusion that Q7 has not been written by the writer of Q8 and Q9 and Q7 is different from Q8 and Q9 for the reasons that density of the ink in Q8 and Q9 as per the transmitted light photograph Ex DW6/32 and ExDW6/33 is darker in comparison to Q7, as per RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 191 of 254 192 transmitted light photograph ExDW6/32, which is very light document. Secondly in Q8 and Q9 the upper rounded part of the signature is triangular in nature, which is not so in questioned signatures Q7. Further in Q8 and Q9 the upper rounded part of the signature show wider gaps horizontally, but in Q7 this gap is very narrow. Also in Q8 and Q9 the execution of ink strokers are regular, but in Q7 there are hesitation of ink strokers and there was a spot where the pen was lifted and the stroke was made after a pause, which is called concealed joining.
239. He was also subjected to cross examination by Ld. Spl. PP for CBI. In his cross examination he submitted that he did not join Indian Institute of Criminology Nagpur. It was a correspondence course for certificate in identification of handwriting. The duration of course was one year. As far as he knows Indian Institute of Criminology Nagpur was not affiliated to any recognized university, but the same was being managed by Sh. C.T.Bhanagay. He similarly stated that he obtained another certificate in Proficiency in Forensically Scientific Examination Tests from Shimla, which was also a correspondence course, but he had once attended the college RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 192 of 254 193 for contact classes and the experts from CFSL particularly Sh. Mukhi, Sh. V.N.Sehgal, Dr. S.C.Mittal and others used to attend classes to give lectures and used to teach about documents. He had also gone to CFSL/CBI New Delhi and FSL Karnal for field training.
240. In his cross examination, he was asked, was it correct that the signatures at point Q8 and Q9 was having tempering starting point and finishing point and having single and natural flow and continuous flow which is genuine to which he answered in affirmative. He was also asked that in how many cases where you have been hired by private party for giving expert opinion, he had given the report against the party to which he stated that number is around 10% of the total cases, when he was asked to specify any such case which went to the court to which he sated that he cannot recollect any such case.
The opinion given by him in his report is as under:
On the cumulative effect of all the above reasons and observations taken together, I am of the opinion that the questioned RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 193 of 254 194 signature marked Q7 has not been written by the same person who has written the signatures marked as Q8, Q9, and S Series(specimen signatures).
241. Counsel for A1 and A2 have relied upon following judgment Mahant Sital Das Vs Sant Ram & Ors. AIR 1954 SC 606 (4 Judges Bench) on the point of testimony of handwriting expert. The relevant extract is reproduced as under: "16. To prove that Ishar Das was in fact a chela of Kishore Das, considerable reliance has been placed on behalf of the defendants upon two wills alleged to have been executed by Kishore Das, one in the year 1911 st and the other on the 31 of March, 1945, just four days before his death. The first document, if proved, would undoubtedly support the defendants' story. It recites that Ishar Das was taken as chela by the testator in the year 1908 and provides that after the death of the testator he shall be the Mahant of the Thakardwara as his successor. We have not got however the original will, nor has any certified copy of it been produced; the document, which has been printed in the paper book prepared in this case, purports to be the translation of a copy of the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 194 of 254 195 th registered will dated the 7 of October, 1911 executed by Mahant Kishore Das. The document does not appear to have been proved by any of the witnesses and does not bear any exhibit mark. It has not been referred to, even incidentally, in the judgment of either of the courts below and if as a matter of fact such a will existed and Ishar Das had already been appointed a Mahant, there seems to be no conceivable reason why Kishore Das should execute another will just before his death. We are further unable to see how this document came on the record at all. Mr Achhru Ram argues that the document being more than 30 years old, there is a statutory presumption available to it under Section 90 of the Indian Evidence Act. But this contention is altogether unavailing. The language of Section 90 of the Indian Evidence Act requires the production of the particular document in regard to which the court is invited to make the statutory presumption. If the document produced is a copy, admissible as secondary evidence under Section 65 of the Evidence Act and is produced from proper custody and is over 30 years old, then only the signautres authenticating the copy may be presumed to be genuine; but production of a copy is not sufficient to raise the presumption of the due execution of the original. In this case no foundation was laid for RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 195 of 254 196 reception of secondary evidence under Section 65 of the Evidence Act, nor can the copy produced be regarded as secondary evidence within the meaning of Section 63. In these circumstances, we must hold that the will alleged to have been executed by Kishore Das in the year 1911 has not been proved and the translation of an alleged copy of it which has been produced in this case should be excluded from consideration."
242. On the other hand Ld. PP for CBI has relied upon the following judgment 1980 Cri.L.J.396 "Murari Lal V. State of M.P. decided by Hon'ble Supreme Court, wherein it was held as under: An expert is no accomplice. There is no justification for condemning his opinion evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occassionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses - the quality of credibility or incredibility being one which an expert shares with all other witnesses - but because RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 196 of 254 197 all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of fingerprints has attained near perfection and the risk of an incorrect opinion is practically nonexistent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. An expert deposes and not decides. His duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence. (Para 4)
243. From the cojoint reading of both the judgments relied upon by the defence as well as prosecution, it is apparent that science of identification of handwriting is not a perfect science, as the science of fingerprint identification and the duty of expert witness is to furnish to the judge with necessary scientific criteria for testing the accuracy of its conclusion so as to enable the judge to form his independent RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 197 of 254 198 judgment. No doubt the evidence of the handwriting expert is generally of weak nature. The quality of credibility or incredibility being one which an expert shares with all other witnesses, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion.
244. However, In the present case the testimony of DW6 does not inspire any confidence, as first of all he is the hired expert who has stated that though in 10% of cases he has given report against the first party hiring him, but at the same time he failed to specify any such case in the court, his qualification to qualify himself as expert is also under a scanner, as he had obtained two courses regarding the forensic science from correspondence by attending some classes and he has also admitted that the expert from CFSL including PW32 used to give them lectures, thereby he also admits that PW32 is a person of repute, who is at much higher pedestal, who had even come to give him class lectures, while he was undertaking some correspondence course. In comparison to testimony of DW6, testimony of PW32 inspires confidence, as PW32 had no axe to grind against A1 or A2, in RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 198 of 254 199 any case he had only given positive opinion regarding the questioned signatures Q7 to Q9, whereas there were many other questioned signatures to which he did not give any such positive opinion, which shows the impartiality of the said witness. The difference of degree and alignment of writing which has come out in his cross examination pertaining to questioned signature Q9, whereas questioned signatures Q9 are of 45 degrees can only be attributed to the fact that when a person gives his specimen handwriting, he is conscious of the fact that same may be used by the expert in comparison, so he may try to write differently so as to escape the consequences and to project that his writing is totally different from the questioned writing to somehow escape the detection.
245. Moreover, in this case the fact that Q7 to Q9 are signatures of A2 is not proved merely by the testimony of PW32 handwriting expert alone but by the direct testimony of PW40 Rabi Lal Thapa who was working as Company Secretary with Mesco Airlines, who has deposed that he has worked with A2 and as far as he remember the signatures at point Q7 seems to be of A2 and that of Q6 was in his handwriting and he has also identified the signatures of RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 199 of 254 200 Natasha Singh at point Q7 on ExPW40/E( which is also marked as ExPW32/A). The said document is the NOC dated 03.05.1996, on the said document the word "certified true copy" has been written by PW40, the signatures were put by A2, which is the forged NOC which was never issued by the IFCI. There is a material difference in the first NOC ExPW2/B and this forged NOC which was being prepared at the forgers factory at Mideast by A2 and it shows that how the NOC dated 03.05.1996 was forged, processed and how ultimately the final one was prepared.
246. Similarly he stated that the signatures on the document No. 17 of file D27 at point Q8 are of A2 which is ExPW40/G, which has also come positive as per the report of PW32 handwriting expert. Same is the letter written to the IFCI for issuance of NOC dated 03.05.1996, which letter was never received by the IFCI as per testimony of witnesses of IFCI already discussed above. Further the first NOC letter was addressed to Sh. B.B.Huria General Manager, whereas this letter has been marked with "kind attention Mr. Y.V.Luthra AGM".
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 200 of 254
201
247. It is not clear how this letter could have been marked to Mr. Y.V.Luthra directly, who was only the manager, since the earlier letter was marked to General Manager, therefore it should have been marked to him only. Further the NOC ExPW2/B is not on the letterhead of IFCI, whereas the document containing signatures Q7 ExPW40/E is on the letterhead of IFCI, which also shows the falsity of said document. Similarly PW40 has also stated after seeing page 18 of D27 that signatures at portion Q9 are of A2, same is ExPW40/H. The said signatures at portion Q9 have also been affirmative in the report of handwriting expert PW32, which is also the similar letter of similar nature as ExPW40/G which is addressed to Y.V.Luthra A3 for issuance of NOC, which is also contrary to the first letter ExPW2/A, which was addressed to Mr. B.B.Huria General Manager, as discussed above.
248. Therefore it appears that since NOC ExPW2/B dated 01.03.1996 which was infact issued on behalf of IFCI was issued by Mr.Y.V.Luthra. The accused persons made it convenient to forge the NOCs dated 03.05.1996 and 13.06.1996 under the name and signatures of Sh. Y.V.Luthra RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 201 of 254 202 A3, as he was on board with them on the ship which had sailed for reaching the insurance claim island. The evidentiary value of testimonial deposition of PW40 has already been discussed above in detail, it has been found to be of reliable character.
249. PW42 has also similarly corroborated the testimony of PW40 in this regard as has already been discussed in detail above. PW42 was the insurance consultant of Mesco Airlines who had worked with A2 for 45 years and he had also stated that the signatures of A2 appearing on the document at portion Mark Q7 to Q9. Though he later on tried to wriggle out of his testimony as already discussed above. The same was only an attempt to equalize his testimony to show some loyalty to the accused persons.
250. Therefore the positive opinion given by the handwriting expert PW32 regarding the signatures at point Q7 to Q9 is also corroborated by the testimonies of PW40 and PW42. It is not that the prosecution is relying alone on the strength or the opinion of the handwriting expert, but the same is corroborated by the testimony of PW40 and PW42 who were the employees of Mesco Airlines/Mideast at one point of time.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 202 of 254
203
Therefore it is apparent that the said NOCs dated 03.05.1996 and 13.06.1996 were forged by A2(Role of A1 shall be discussed hereinafter), as she had also sent the letter Ex PW17/DC which is the forwarding letter sent by Mideast to Mr. R.Ramalingam AGM, Delhi Region UIICL ExPW17/DC dated 06.05.1996. Therefore A2 is liable for offence(s) of cheating, as also cheating for the purposes of forgery as well forgery of valuable security U/s 420/467/468 IPC, as she had dishonestly induced UIICL to deliver the insurance claim of Rs. 2 Crores and Rs. 13837599/ by producing forged and fabricated NOC(s) dated 03.05.96 and 13.06.1996.
REGARDING THE ROLE OF MRS. RITA SINGH(A1)
251. PW34 who was working as Chartered Accountant with Mideast India Ltd., stated that he served in the said company upto 1998. Managing Director was Ms. Rita Singh and its Directors were J.K.Singh and Natasha Singh. Similarly PW40 Rabi Lal Thapa stated that A1 was Managing Director of Mideast and its directors were A2 and J.K.Singh. PW21 Sh. Suresh Dhingra has deposed that he was working in M/s Mid East India Ltd during the year 1992 to 2000 as personal assistant to Ms. Rita Singh A1. Ms.Rita Singh was the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 203 of 254 204 Managing Director and A1 was the Director of the company. As PA his duties were to attend phone calls, to arrange meetings and to take dictation of letters etc. He stated that letter dated 13.06.1996 had been signed by him on behalf of Rita Singh. This letter is marked 21/Z1 which is the photocopy of letter. The letter already marked as 19/X has been signed by Rita Singh as certified true copy for M/s Mid East India Ltd., this is a photocopy of letter and he signed at point A for Mrs. Rita Singh.
252. However, it appears that the testimony of PW21 has got jumbled up with regard to the letter mark 19/X and mark 21/Z. The letter mark 19/X(also ExPW21/D1) also Ex PW40/B at Page 568 of the file D19 is the letter dated 13.06.1996 signed and sent by PW21 Suresh Dhingra, Personal Assistant of A1 to Divisional Manager, United India Insurance Company, New Delhi regarding the payment of Rs. 13837599/ in which it is also stated that NOC from IFCI alongwith other banks was also enclosed with the said letter, there is endorsement on the said letter "kind attention Anju Chawla", which endorsement was made by PW40 as per his RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 204 of 254 205 testimony. The relevant testimony of PW21 is reproduced as under:
"Letter ExPW11/5 contains my signatures on behalf of Natasha Singh. My signatures at point A on the letter ExPW11/5. This letter was typed by me. I am unable to identify the handwriting and signatures of Mr. Ravi. I also identify my signatures the letter ExPW21/A which has been typed and signed by me on behalf of Natasha Singh.
Letter ExPW17/DC appears to contain signatures of Ms. Natasha Singh at point A. Letter dated 03.05.96 also appears to contain signatures of Natasha Singh., the same is marked 21/Y. Another letter dated 03.05.96 also appears to contain signatures of Natasha RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 205 of 254 206 Singh., the same is marked 21/Z. Letter dated 13.06.96 has been signed by me on behalf of Rita Singh, this letter is Marked 21/Z1.
This is a photocopy of letter. Letter already marked 19/X has been signed by Rita Singh as certified true copy for M/s Mid East India Ltd., this is a photocopy of letter. I had signed at point A for Mrs. Rita Singh.
253. Therefore when PW21 is referring to the letter written and duly signed on behalf of A1, he is precisely referring to this letter mark 19/X, whereas in his testimony it has come that on mark 19/X A1 has signed as certified true copy for M/s Mideast India Ltd. It appears from the tone and tenor of his testimony that when he was referring that A1 signed as certified true copy, he is infact referring to the letter mark 21/Z1 also ExPW32/F on which there is endorsement certified true copy for Mid East India Ltd. Managing Director, which was signed by A1. If the true perspective of the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 206 of 254 207 testimony of PW21 is seen on giving a proper interpretation to his testimony on reading the said para as a whole to which, there is no cross examination of PW21 on this aspect by counsel for A1 that the letter mark 21/Z1 (ExPW32/F) page 566 D19 does not bear the signatures of A1, wherein endorsement certified true copy had been made.
254. It is another matter that her signatures at point Q122 which were sent for handwriting comparison alongwith her admitted handwriting and signature, but no positive opinion was given by handwriting expert PW32 with regard to the same. However, PW21 was very important witness on behalf of prosecution, since he was the personal assistant of A1, he would have seen her writing and signing day and day out, he would have been the best person to identify her handwriting and signatures, as he was working with her at all the times.
255. It is hard to imagine that PW21 would not be conversant with the handwriting and signatures of A1, as it was his duty to take dictation from her on all the letters and thereafter to type it and thereafter to obtain her signatures.
Therefore he was the best person to depose regarding her signatures and handwriting and he has categorically identified RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 207 of 254 208 her signatures on the letter ExPW32/F mark Z1 D19 page 566, to which there has been no cross examination. Further PW40 also in his examination in chief has stated that as far as he remembers in document D19 page 566 which is copy of fax and which is ExPW32/F the signatures at point Q122 are of A1. He had identified her signatures as he had seen her writing and signing during the official course of business.
256. PW40 as already discussed was the Company Secretary of Mesco Pharmaceuticals as well as Mesco Airlines and he had also worked with A1 and A2 during the official course of secretarial matters, therefore he would also know the signatures of A1 and A2 without any doubt. Though PW40 in his cross examination was asked a question by the word "seems" used by him regarding the signatures in his testimony means that you are not very sure to which he stated that it is correct as already discussed above, it appears that the said answer was given by him in his cross examination only to wriggle out from his examination in chief in order to equalize his testimony, to show to the accused person(s) that he was not gravitating towards the prosecution.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 208 of 254
209
257. In any case the testimony of PW21 and PW40 on this point converges with each other and corroborates each other. The very purpose of obtaining corroboration is to rule out the testimonial error in the testimony of a single witness, which may crept in due to assorted reasons, like observational error, objectivity, bias etc. If two witnesses are saying the same thing, then the testimonial error in the testimony of one witness if any, is obliterated by the testimony of the second witness. In the present case the said testimonies of PW21 and PW40 are not based upon observation of a fact or an incident, rather it is based upon documents which are existing in black and white, authenticity of which has been duly established.
One can understand that two witnesses having witnessed the same incident by way of observation could have observed the said incident in a different way and there could be observational error in the testimony of one or the another witness which could be difficult to reconcile after analysis of their evidence.
258. However, present case is backed by the documents PW40/B(Mark 19/X) as well as ExPW32/F(Mark 21/Z1) so the chances of error(s) in the testimony of PW21 RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 209 of 254 210 and PW40 are almost negligible. The question of error does not rather arise, since it is not based upon observation, which is fallible, but on the basis of tangible documents. Even otherwise, on ExPW32/F(mark 21/Z1) the telephone number allotted to Mesco Airlines is clearly visible, as is the case in ExPW40/B Mark 19/X.
259. As discussed above, both these documents were forwarded to the Divisional Manager UIICL, Delhi for processing of the final chunk of payment of Rs. 13837599/ and the NOC dated 13.06.96 which is also forged and fabricated, as already discussed above in the preceding paras for various reasons including the reason that first NOC Ex PW2/B was not on the letterhead, whereas NOCs dated 13.06.96 and 03.05.1996 were both on the letterhead and other assorted reasons which does not need any reiteration.
Therefore it appears that A1 had also made a forge document ie NOC dated 13.06.1996, as she dishonestly with the intention of causing it to be believe that said NOC was made, signed, sealed or executed or affixed by or by the authority of Mr. Y.V.Luthra by whom for whose authority she was fully aware that it was not signed, executed, sealed or affixed. The RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 210 of 254 211 same is also valuable security as defined in Section 30 of IPC, as it has been held in judgment AIR 1981 SC 80 "certificates which were found as forged for being admitted in the college could be described as valuable security".
260. From the principle enumerated in the said judgment, it is apparent that NOCs dated 03.05.1996 and 13.06.1996 would also be valuable securitie(s), as vide the said document legal right is created in favour of company of which A1 was the Managing Director and A2 was the Director and without which the payment of insurance claim would not have been released in their favour and by the very same documents i.e NOCs dated 03.05.1996 and 13.06.1996, the rights of IFCI not to issue the NOCs without clearing the dues was extinguished. Therefore A1 has clearly made a false document which purported to be a valuable security for the delivery of final interim payment of insurance claim of Rs. 13837599/. A1 is also liable for offence U/s 420 IPC as she has dishonestly induced UIICL to deliver the insurance claim of Rs. 13837599/ by producing forged and fabricated NOC dated 13.06.1996.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 211 of 254
212
261. Both A1 & A2 have used NOC dated 03.05.1996 and 13.06.1996 dishonestly which were forged for which they are also liable for using forged documents as genuine fraudulently and dishonestly. They are also liable to be convicted U/s 471 IPC
262. Regarding conspiracy part, relevant law was discussed by Hon'ble Supreme Court in the case titled K.R.Purushothaman Vs State of Kerala (2005) 12 Supreme Court Cases 631, relevant extract is reproduced as under:
11. Section 120A IPC defines "criminal conspiracy". According to this Section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. In Major E.G.Barsay V. State of Bombay Subba Rao J., speaking for the Court has said :(SCR p.228) "The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts."
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 212 of 254
213
12. In State V. Nalini it was observed by S.S.M. Quadri, J. at JT para 677: (SCC pp.56869, para
662) "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy;
some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 213 of 254 214 offences individually or adopt illegal means to do a legal act which has a nexus with the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences."
13. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators take active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the wellknown rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 214 of 254 215 circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment.
Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.
14. Suspicion cannot take the place of legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. Mohd. Yusuf Momin V. State of Maharashtra, that: (SCC pp.699700, para 7) RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 215 of 254 216 "[I]n most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts.
Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."
15. It is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Of course, each one of the circumstances should be proved beyond reasonable doubt. The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. While speaking for the Bench it is held by P. Venkatarama Reddi, J. in State (NCT of Delhi) V. Navjot Sandhu (p.63) as follows:
(SCC pp.69192, para 103) "103. We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 216 of 254 217 those offences in addition to being liable for criminal conspiracy; but, the non participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators.
There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle.
263. Counsel for A2 has also relied upon a judgment on this point 1999 Cri.L.J.3124 State of Tamil Nadu through Superintendent of Police CBI/SIT Vs Nalini and others WITH T.Suthenthiraraja alias Santhan and others Vs State by DSP, CBI, SIT, Chennai WITh P.Ravichandran and others Vs State by DSP, CBI, SIT, Chennai WITH Robert Payas and others Vs State by DSP, CBI, SIT, Chennai WITH S.Shanmugavadivelu and others Vs State by DSP, CBI, SIT, Chennai WITH S.Nalini and others Vs State by RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 217 of 254 218 DSP, CBI, SIT, Chennai, it was held as under: "110. The first condition which is almost the opening lock of that provisions is the existence of "reasonable ground to believe" that the conspirators have conspired together. This condition will be satisfied even when there is some prima facie evidence to show that there was such a criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by one of the conspirators becomes substantive evidence against the other, provided that should have been a statement "In reference to their common intention". Under the corresponding provision in the English Law the expression used is "in furtherance of the common object". No doubt, the words "in reference to their common intention" are wider than the words used in English Law, (vide Sardar Sardul Singh Caveeshar v. State of Maharashtra, (1964) 2 SCR 378: 1965 (1) Cri.L.J. 608: (AIR 1965 SC 682).
111. But the contention that any statement of a conspirator, whatever be the extent of time, would gain admissibility under Section 10 if it was made "in reference" to the common intention, is too broad a proposition for acceptance. We cannot overlook that the basic principle which underlies in Section 10 of the Evidence Act is the theory of agency.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 218 of 254
219
Every conspirator is an agent of his associate in carrying out the object of the conspiracy. Section 10, which is an exception to the general rule, while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. Once it is shown that a person became snapped out of the conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators under Section 10.
112. Way back in 1940, the Privy Council has considered this aspect and Lord Wright, speaking for Viscount Maugham and Sir George Rankin in Mirza Akbar v. KingEmperor, AIR 1940 PC 176 : (1940 (41) Cri.L.J.871) has stated the legal position thus :
" The words 'common intention' signify a common intention existing at the time when the thing was said, done or written by one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a relevant as evidence of the common intention, once reasonable ground has been shown to believe RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 219 of 254 220 in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference. In their Lordships' judgment S.10 embodies this principle. That is the construction which has been rightly applied to S.10 in decisions in India, for instance, in ILR 55 Bom 839 : (AIR 1932 Bom 56 : (1932) 33 Cri L.J.76) and (1911) ILR 38 Cal 169. In these cases the distinction was rightly drawn between communications between conspirators while the conspiracy was going on with reference to the carrying out of conspiracy and statements made, after arrest or after the conspiracy has ended, by way of description of events then past."
264. Counsel for A3 has also relied upon the judgment 1964(2) Cri. L.J. 209 in which it was held that where accused was merely present at meetings of accused persons, no overt act on the part of accused was shown therefore no offence U/s 120A IPC is made out.
265. Main contention of all the accused persons A1, A2 and A3, is relying upon the letter ExPW2/C dated 19.12.1995 RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 220 of 254 221 written by General Manager(finance) of Mideast India Ltd., to IFCI in which they had stated that since their shoe factory was financed by IFCI and there was a fire in the factory on 17.06.1995. The factory was fully insured with the UIICL who had been intimated about the loss, who had appointed the surveyors for assessing the loss and after close scrutiny the surveyors required the letter from the IFCI stating that they required the letter from them in which the interest of IFCI should be mentioned so as to get the insurance claim settled at the earliest. The said letter is ExPW2/C. Reply to the said letter was written by A3 dated 26.12.1995 ExPW2/DA in which the Mideast has been notified that the IFCI had financed two shoe lines and IFCI had exclusive charge on the plant & machinery, as IFCI was the beneficiary under the insurance policies of such plant & machinery. Therefore said cheque for settlement amount be drawn in favour of Industrial Finance Corporation of India i.e IFCI.
266. Relying upon these two letters Ld. Counsels for A1, A2 and A3 have stated that there is no common object of the conspiracy which can be inferred, as the Mideast had been writing to IFCI in December 1995 itself, intimating them that RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 221 of 254 222 the surveyors wanted a letter, in which IFCI should state their interest and pursuant to that reply was written by A3 stating that the plant & machinery of the Mideast pertaining to which fire had taken place was under the charge of IFCI of which IFCI was a sole beneficiary under the insurance policy. Therefore the cheque for settlement of insurance claim be drawn in their favour. Relying upon these two letters they have argued that if there was any criminal conspiracy or meeting of minds of A1, A2 and A3 or there was any agreement to commit an offence, as has been argued by Public Prosecutor then there would not have been any letter and reply written thereto by A3, this shows that there was no conspiracy. On the other hand, Ld. PP for CBI has argued to the contrary.
267. Now the evidence has to be analyzed to see whether the prosecution has been able to prove the offence of conspiracy in view of the law laid down above. From the aforesaid judgment, it is apparent that there would seldom be any direct evidence of conspiracy, conspiracy in almost in all the cases has to be gathered or inferred from the conduct of the parties involved in the conspiracy. It is also settled law that in order to constitute a conspiracy the meeting of minds of two RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 222 of 254 223 or more persons for doing an illegal act or an act by illegal means, is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary for every one of the conspirators to take active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication, as no direct evidence would be available. In any case, for the reasons that conspiracies are generally hatched in secrecy and no direct evidence with regard to the hatching of conspiracy would normally be available in almost all the cases.
268. The arguments of Ld. Defence counsels is without any substance, as the conspiracy in the present case i.e agreement between A1, A2 and A3 to commit offence did not start at the time when the letter ExPW2/C dated 19.12.1995 and reply thereto dated 26.12.1995 ExPW2/DA was written by A3, but it started at the time, when first NOC dated 01.03.1996 was issued by the accused which is ExPW2/B. It has been clearly proved by the prosecution that at the time when first NOC ExPW2/B was issued, at that time there was a default to the amount of Rs. 58 lacs in the loan account of RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 223 of 254 224 Mideast and A3 without getting any clearance from the Accounts Department either written or oral(which was not permissible) issued the NOC without any legal authority. It was incumbent upon A3 to follow proper procedure of verification, if there was no dues in the said loan account of Mideast, yet he without following any procedure or verification from the Accounts department issued NOC dated 01.03.1996 to which Mideast was not entitled, as there was huge default of Rs. 58 lacs in the loan account of Mideast and the cheque issued by them for the said amount had been dishonoured.
269. Therefore it appears that A3 was also on board on the ship of conspiracy, which had started sailing on or around 01.03.1996 and which finally reached the destination, when the final NOC dated 13.06.1996 was obtained. It has already been discussed above that document D19 Page 568 Ex PW21/D1 which was the forwarding letter written to Divisional Manager United India Insurance Company, New Delhi dated 13.06.1996 intimating them that same also contained NOC from IFCI. The said letter was signed on behalf of A1 by her Personal Assistant Sh. Suresh Dhingra PW21, which was proved in his testimony. ExPW32/F which is the NOC dated RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 224 of 254 225 13.06.1996 is stated to be having the signatures of A1 at point Q122 at page 566 D19 as per testimony of PW21. The evidentiary value of testimony of PW21 has already been discussed above in detail, therefore does not need any further elaboration, the same has also been stated so by PW34 in his corroborated testimony. Therefore A1, who was the Managing Director of Mideast, not in such capacity(but for her own individual acts(s)) was also on board of the said ship which sailed on or around 01.03.1996 and the NOC dated 13.06.1996 has been forged by A1 as the word certified true copy had been endorsed by her, therefore who else, but her should have forged the same.
270. Regarding the role of A2(who was also Director of Mideast, not in such capacity, but for her own individual acts) in file D27 there was bunch of documents which have been proved by the testimony of PW40 Rabi Lal Thapa and PW42 Kamal Deep Chhabra as already discussed in detail in preceding para(s). In file D27 at point Q7, Q8 and Q9 it has come as per opinion of handwriting expert PW32 that the said signatures were of A2 only. The evidentiary value of the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 225 of 254 226 testimony of PW32 vizavis handwriting expert examined by the accused persons as DW6 has already been discussed and it has been found that the testimony of DW6 is not worthy of reliance. Since the opinion of PW32 was also supported by the oral direct evidence of PW40 and PW42. Therefore it appears on analysis of entire sequence of events that acts of A1, A2 and A3 were not isolated acts of individual, rather there appears to be a common theme or leit motiv emerging from the analysis of the entire evidence to infer the existence of conspiracy between A1, A2 and A3 i.e it gives conclusive inference that there was agreement between all of them to commit an offence of cheating/forgery and other offences for which they have been charged. Therefore all the accused are liable to be convicted U/s 120B IPC r/w Sections 420/467/468 & 471 IPC, 13(2) r/w 13(1)(d) of P.C Act, 1988.
271. Regarding the role of A3 with regard to offence U/s 13(1)(d)(iii) of PC Act 1988 the law in this regard has been settled in catena of judgments: The relevant extract is reproduced as under:
272. In a case decided by Hon'ble Supreme Court titled RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 226 of 254 227 M.Narayanan Nambiar Vs State of Kerala 1963(2) Cri.L.J. 186, it was held as under:
6. As the first contention turns upon the provisions of S.5(1), it will be convenient to read the same:
5.(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in S. 161 of the Indian Penal Code, or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable things without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or
(c) if he dishonestly or fraudulently RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 227 of 254 228 misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
We are concerned in this case with S.5(1) (d) of the Act. Under that clause if a public servant by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person valuable thing or pecuniary advantage, he will be guilty of criminal misconduct, punishable under S. 5(2) of the Act with imprisonment for a term which shall not be less than one year and which may extend to 7 years, and shall also be liable to fine. The learned counsel contends that clause (d) being a penal provision, shall be strictly construed; and that if so construed, it would only take in cases of direct benefit obtained by a public servant for himself or for any other person from a third party in the manner described therein and does not cover a case of a wrongful loss caused to the Government by abuse of his power.
10. ................ . First taking the phraseology used in the clause, the case of a public servant RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 228 of 254 229 causing wrongful loss to the Government by benefiting a third party squarely falls within it. Let us look at the clause "by otherwise abusing the position of a public servant," for the argument mainly turns upon the said clause. The phraseology is very comprehensive. It covers acts done "otherwise" than by corrupt or illegal means by an officer abusing his position. The gist of the offence under this clause is, that a public officer abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. "Abuse" means misuse i.e. using his position for something for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than those means. The word 'otherwise' has wide connotation and if no limitation is placed on it, the words 'corrupt', 'illegal', and 'otherwise' mentioned in the clause become surplusage, for on that construction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say, something savouring of dishonest act on his part. The contention of the learned counsel that if the clause is widely construed even a recommendation made by a public servant for securing a job for another RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 229 of 254 230 may come within the clause and that could not have been the intention of the Legislature. But in our view such innocuous acts will not be covered by the said clause. The juxtaposition of the word 'otherwise' with the words 'corrupt or illegal means', and the dishonesty implicit in the word "abuse" indicate the necessity for a dishonest intention on his part to bring him within the meaning of the clause. Whether he abused his position or not depends upon the facts of each case; nor can the word 'obtains' be sought in aid to limit the express words of the section. 'Obtain' means acquire or get. If a corrupt officer by the said means obtains a valuable thing or a pecuniary advantage, he can certainly be said to obtain the said thing or a pecuniary advantage; but it is said that in clauses (a) and (c) the same word is used and in the context of those clauses it can only mean getting from a third party other than the Government and therefore the same meaning must be given to the said word in clause (d). 'Obtains' in clauses (a) and (b) in the context of those provisions may mean taking a bribe from a third party, but there is no reason why the same meaning shall be given to that word used in a different context when that word is comprehensive enough to fit in the scheme of that provision. Nor can we agree that as dishonest misappropriation has been provided RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 230 of 254 231 for in clause (c), the other cases of wrongful loss caused to the Government by the deceit practised by a public officer should fall outside the section. There is no reason why when a comprehensive Statute was passed to prevent corruption this particular category of corruption should have been excluded therefrom because the consequences of such acts are equally harmful to the public as acts of bribery. On a plain reading of the express words used in the clause, we have no doubt that every benefit obtained by a public servant for himself, or for any other person by abusing his position as a public servant falls within the mischief of the said clause.
In a case decided by Hon'ble High Court of Delhi titled Runu Ghosh Vs CBI Crl.A.482/2002, P.Rama Rao Vs CBI Crl.A. 509/2002 and Sukh Ram Vs CBI Crl.A. 536/2002 decided on 21.12.2011, it was held as under:
66. This question lies at the core of the reference to this Division Bench. The material portion of the reference, while adverting to Sections 13(1)(d) and then dealing with the phraseology of Section 13(1)(d)(iii) and other preceding subclauses, reads thus:
Whether the absence of adverbs like wilfully, fraudulently, dishonestly, RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 231 of 254 232 corrupt or illegal means to qualify the verb obtains in this clause would mean that a public servant commits criminal misconduct if he while holding such office obtains for any person (and not for himself) any pecuniary advantage which is without any public interest? The statute appears to offer no guidance as to what can be said to be a decision or act that is without public interest.
Though the reference order elaborately lists out the salient facts in the Appeals, notes rival contentions, and even notices relevant case law, it is necessary to recapitulate the pre existing law, i.e. Section 5(1)(d) of the 1947 Act, and juxtapose it with the 1988 Act. The controlling clauses, in both provisions, are in pari materia (a public servant is said to commit the offence of criminal misconduct if he ...). Section 5(1)(d) reads as follows:
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage...Section 13(1)(d)(i), (ii) and (iii), on the other hand, read RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 232 of 254 233 thus:
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or Crl.A.Nos. 482/02, 509/02 & 536/02 Page 45
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.... It is clear from the above comparison that in clause (i), the reference to "corrupt or illegal" means, (of a public servant obtaining for himself, or someone elseany valuable thing or pecuniary advantage) has been retained. However, the reference to doing of such an act "otherwise" (which was there in the previous law, i.e. Section 5(1)(d) has been omitted. The latter parts of Section 5(1)(d), i.e. the public servant obtaining for himself or for any one else any valuable thing or pecuniary advantage, by abusing his RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 233 of 254 234 position as a public servant has been retained, in Section 13(1)(d)(ii).
A new offence (or subspecies, of the existing offence) has been carved out, in Section 13 (1)
(d)(iii) which criminalizes, as "criminal misconduct" the act of a public servant, holding office, which results in someone else (any person) benefitting by getting a valuable thing or pecuniary advantage, without any public interest. There is no doubt that Parliament created this new offence of criminal misconduct, where abuse of office, or use of corrupt or illegal means by a public officer, is inessential to prove the crime. What the prosecution has to establish, in accordance with law, is that the public officer, obtained for someone elsenot necessarily by abusing his office, or using corrupt or illegal means pecuniary advantage or a valuable thing without public interest.
79. What then is the behaviour or act which attracts such opprobrium as to result in criminal responsibility? It is not every act which results in loss of public interest, or that is contrary to public interest, that is a prosecutable offence. There can be no doubt that all acts prejudicial to public interest, can be the subject matter of judicial review. In those cases, courts consider whether the decision maker transgressed the zone of RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 234 of 254 235 reasonableness, or breached the law, in his action. However, it is only those acts done with complete and manifest disregard to the norms, and manifestly injurious to public interest, which were avoidable, but for the public servants overlooking or disregarding precautions and not heeding the safeguards he or she was expected to, and which result in pecuniary advantage to another that are prosecutabe under Section 13(1)(d)(iii). In other words, if the public servant is able to show that he followed all the safeguards, and exercised all reasonable precautions having regard to the circumstances, despite which there was loss of public interest, he would not be guilty of the offence. The provision aims at ensuring efficiency, and responsible behaviour, as much as it seeks to outlaw irresponsibility in public servants functioning which would otherwise go unpunished. The blameworthiness for a completely indefensible act of a public servant, is to be of such degree that it is something that no reasonable man would have done, if he were placed in that position, having regard to all the circumstances. It is not merely a case of making a wrong choice; the decision should be one such as no one would have taken.
81. As noticed previously, the silence in the statute, about the state of mind, rules out RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 235 of 254 236 applicability of the mens rea or intent standard (i.e. The prosecution does not have to prove that the accused intended the consequence, which occurred or was likely to occur). Having regard to the existing law Section 13(1)(e) (which does not require proof of criminal intent) as well as the strict liability standards prevailing our system of law, therefore, a decision is said to be without public interest, (if the other requirements of the provision, i.e. Section 13(1)(d)(iii) are fulfilled) if that action of the public servant is the consequence of his or her manifest failure to observe those reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his or her duty to have adopted.
273. In view of the law laid down in the above judgment(s), it has to be seen whether prosecution has been able to prove offence U/s 13(1)(d)(iii) of PC Act, which criminalizes criminal misconduct that a public servant holding post which results in someone else i.e any person benefiting by getting a valuable thing or pecuniary advantage without any public interest and the prosecution has to establish to prove the said offence that public officer obtains for someone else not necessarily abusing his office or using corrupt or illegal RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 236 of 254 237 means, pecuniary advantage or valuable thing without public interest, it has also been held in the said judgment that mens rea is not necessary ingredients of said section. It has been further held in the said judgment that it is only those acts done with complete and manifest disregard to the norms, and manifestly injurious to public interest, which were avoidable, but for the public servants overlooking or disregarding precautions and not heeding the safeguards he or she was expected to, and which result in pecuniary advantage to another that are prosecutable under Section 13(1)(d)(iii) of PC Act. In other words, if the public servant is able to show that he followed all the safeguards, and exercised all reasonable precautions having regard to the circumstances, despite which there was loss of public interest, he would not be guilty of the offence.
274. In view of the abovesaid law laid down in the aforesaid judgment Runu Ghosh(SUPRA) it has to be seen whether A3 followed all the norms and took all precautions and safeguards reasonably.
275. As already discussed above, in the testimonies of RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 237 of 254 238 various prosecution witnesses, who were examined from IFCI, namely, PW3, PW8, PW39, PW2 and PW31, it has been duly proved that the letter which was marked to PW28 by PW3 who in turn marked the letter ExPW2/A for the issuance of NOC to A3 was never marked to either PW3 or PW31 who were from Accounts Department of the IFCI, nor the same was marked to PW8 also from the Accounts department of IFCI who also stated that oral confirmation of dues was not possible and the project department only wrote to them for issuance of NOC/dues. PW39 also supported the testimonial deposition of above witnesses that A3 never took no dues clearance or inquired from them regarding the dues in the account of Mideast and it has been proved from the document D56 Ex PW4/B that there was dues of approximately Rs. 58 lacs in the loan account of Mideast on the date of issuance of first NOC dated 01.03.96 ExPW2/B. What is most galling is that fact that PW2 had made an endorsement at point A on ExPW2/A itself as under:
"We may accord 'NOC' s/t payment of overdues aggregating Rs. 58 lacs"
RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 238 of 254 239 which should have clearly put A3 to the notice that there were dues of Rs. 58 lacs in the loan account of Mideast, which endorsement he conveniently ignored, for which no explanation has been given.
276. Therefore A3 was under a legal obligation to verify from the Accounts Department in writing, if there was any amount of loan outstanding in the loan account of Mideast which he did not and he should have followed the proper procedure of obtaining no dues clearance in writing which was the norm as per testimony of the witnesses from IFCI which was not followed by A3, as it was categorically stated by PW8 that oral confirmation of dues was not possible.
277. It is apparent from the testimony of IFCI witnesses that the cheque for the said amount given by Mideast was dishonoured and yet A3 in total disregard to the established norms without any proper verification of the outstanding dues issued NOC dated 01.03.1996, to which Mideast was not entitled. As already discussed above, Mens rea is not necessary ingredient of Section 13(1)(d)(iii) of PC Act, which criminalizes criminal misconduct that a public servant holding public post which results in someone else i.e any person RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 239 of 254 240 benefiting by getting a valuable thing or pecuniary advantage without any public interest.
278. From the aforesaid discussion, it is crystal clear that A3 acted against established practice or norm that NOC could only be issued to an individual or the company in case there was no outstanding in the loan account of the individual or the company. In the present case there was a huge outstanding to the extent of Rs. 58 lacs in the loan account of Mideast when the NOC dated 01.03.1996 was issued, that too without seeking any verification report from the accounts department in writing by asking them in writing, whether there were any dues of the Mideast in the loan account or not. Since this act of accused resulted in benefiting the Mideast getting a valuable thing or a pecuniary advantage unduly to which they were not entitled, as the said NOC could not have been issued to them, if it was found from the accounts department that there was outstanding to the extent of Rs. 58 lacs in the loan account, if the same would have come on the record.
279. The NOC which was surely a valuable thing had resulted in pecuniary gain to the Mideast, the same is without any public interest, as IFCI is a public institution. In the present RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 240 of 254 241 case, accused had clearly overreached the zone of reasonableness, which he had done by issuing NOC with complete disregard to the norms of IFCI and the same is clearly injurious to the public interest which was clearly avoidable, but for the A3 overlooking and disregarding the precautions and not taking the safeguards, he was expected to, which resulted any pecuniary advantage to another i.e Mideast. Therefore accused is clearly liable to be convicted under Section 13(1)(d)(iii) of PC Act,1988.
280. The present case is not based merely upon testimonies of witnesses who had occasion to observe particular fact or series of facts or event. The testimonies of such witnesses suffer from human errors, which all human being suffer in the shape of observational errors, bias, objectivity, his position at the time of observation, as also the errors in perception, recollection and narration at the time of deposition. Therefore their testimonies in such a case could suffer from errors of human nature, whereas in the present case such errors need not detain us, as such errors are obliterated by the overwhelming number of tangible things in the shape of documents, which rule out possibilities of such RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 241 of 254 242 errors, making the case of prosecution highly reliable. The only rider being the prosecution had to prove the genuineness of the said documents which has been duly proved in this case by the prosecution.
281. Net result of the probative force of the entire mass of the prosecution case, taken as a whole, on the scales where probability of happening any event/fact is measured is touching the point of near certainly i.e on the scale of 1 to 10 it would be touching more than nine points, which is almost next to certainly, which being 10 cannot be obtained in any case, being perfect probability. On said scales the defence story is touching very low level(s) of probative force, making it highly improbable or unlikely touching the lowest most points on the said scales.
282. The net result of the aforesaid discussion is that all three accused persons namely Rita Singh(A1), Natasha Singh Sinha(A2) and Y.V.Luthra(A3) are held guilty and convicted for the offence(s) punishable under Section 120B IPC r/w Sec.420/467/468/471 IPC and Section 13(1)(d)(iii) r/w Sec.13(2) of PC Act, 1988. Further, A1 Rita Singh and A2 Natasha Singh both are also held guilty and convicted for RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 242 of 254 243 substantive offence(s) u/S 420/467/468/471 IPC. Further, A3 Y.V.Luthra is also held guilty and convicted for substantive offence(s) punishable u/S 13(1)(d)(iii) r/w Sec.13(2) of PC Act, 1988.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 07.12.2015 Special Judge,
CBI03 (PC Act)
Delhi/07.12.2015
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 243 of 254
244
IN THE COURT OF SH. SANJEEV AGGARWAL SPECIAL JUDGE CBI03 (PC ACT) DELHI CC No.42/01 RC No. 1(E)/1998 CBI/SIG/ND U/s : 120B r/w S 420/467/468 & 471 IPC and Section 13(2) r/w 13(1)(d) of PC Act 1988.
CBI Vs. (i) Smt. Rita Singh(A1) W/o Sh. J.K.Singh Director Mideast(India) Ltd., Zamroodpur Community Centre, R/o D3/A, Rita Villa, Satbari Farms, Delhi
(ii) Ms. Natasha Singh Sinha(A2) W/o Sh. Gautam Sinha, Director, Mideast(India) Ltd, H1, Zamroodpur Community Centre, Kailash Colony, New Delhi R/o 706B, Alanksha Apartment, Yari Road, Varsova, Mumbai
(iii) Sh. Y.V.Lutra(A3) S/o Late Sh. Jugal Kishore Luthra, formerly Astt. General Manager(Tech), Industrial Finance Corporation of India Ltd., Nehru Place, New Delhi R/o A3/68, Paschim Vihar, New Delhi(since retd., from service) RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 244 of 254 245 Judgment Delivered on : 07.12.2015 convicted u/S: 120B IPC r/w Sec.420/467/468/471 IPC and Section 13(1)(d)(iii) of PC Act 1988 ORDER ON SENTENCE :
1. Vide judgment dated 07.12.2015, accused persons namely Rita Singh(A1), Natasha Singh Sinha(A2) and Y.V.Luthra(A3) were convicted for the offence(s) punishable under Section 120B IPC r/w Sec.420/467/468/471 IPC and Section 13(1)(d)(iii) r/w Sec.13(2) of PC Act, 1988. Further, A1 Rita Singh and A2 Natasha Singh both were also convicted for substantive offence(s) u/S 420/467/468/471 IPC. Further, A3 Y.V.Luthra was also convicted for substantive offence(s) punishable u/S 13(1)(d)(iii) r/w Sec.13(2) of PC Act, 1988.
2. I have heard Sh.V.K.Ojha, Ld.PP for CBI and Ld. Counsel for A1 Sh. Kanwal Nain, Ld. Counsel for A2 Sh. S.K.Saxena and Ld. Counsel for A3 Sh. R.S.Aggarwal.
3. Ld. Public prosecutor for CBI submits that the convict no. 1 & 2 are habitual offenders, as they are facing trial in 5 other cases of forgery and cheating pertaining to different transactions of cheating different financial institutions of amounts of Rupees RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 245 of 254 246 76 Crores, 17 Crores and 31 Crores to name a few. It is also submitted that the convicts are economic offenders who have been cheating the Public Financial Institutions of huge amount of monies for their gain, their acts have resulted in huge loss to the tax payers. Therefore severe punishment should be awarded to them, as Section 467 IPC entails punishment upto life imprisonment. Regarding A3 he has argued that he was public servant, yet he did not observe the norms for the issuance of NOC, resulting into loss to the IFCI. Therefore strict punishment should also be awarded to him. He has also relied upon the judgment in support of his contentions. (2015) 6 SCC 185 titled as Shanti Lal Meena Vs. State(NCT of Delhi)
4. On the other hand, Ld. Counsel for A1 Sh. Kanwal Nain has argued that Convict Rita Singh is old and sick lady aged about 66 years and she is suffering from various ailments like sciatica, psonasis, prodiabetic etc., and she is under medical treatment for long time. He has also filed medical documents in support of said ailments. He has also stated that she has suffered agony of trial for the last 15 years.
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 246 of 254
247
5. It is also stated that the convict has two daughters, both are living separately with their families, her husband is aged 70 years suffering from partial paralysis and other ailments and there is nobody to look after him. It is also stated that the matter has already been settled with the IFCI, in the DRT.
6. It is also stated that the convict has already undergone judicial custody of 377 days in various cases, as mentioned para 6 of her unsigned affidavit. It is also stated that she is running a steel plant in the name of Mideast Integrated Steels Ltd., which is a debt free company and she is employing around 4000 employees, whose livelihood is dependent upon her. It is also stated that the convict is a leading women Entrepreneur Therefore it is stated that she has deep roots in the society and lenient punishment should be awarded to her considering these overall circumstances. Counsel for A1 has relied upon following judgments in support of his contentions:
1. 2015 X AD(S.C) 276 titled as Kiran Chander Asri Vs. State of Haryana
2. (2014) 3 SCC 485 titled as V.K.Verma Vs. Central Bureau of Investigation RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 247 of 254 248
3. (2006) 7 SCC 414 titled as Beena Philipose and Anr. Vs. State of Kerala.
4. (1985) 3 SCC 638 titled as Sharvan Kumar Vs. State of Uttar Pradesh
7. Regarding A2, it is submitted that at the time of the incident she was only 24 years of age, which is quite young. At that time the person is not fully mature, therefore he/she does certain acts without thinking over about the consequences of the same. It is stated that she has reformed herself. It is also stated that husband of the convict A2 is suffering from Multiple Sclerosis(Progressive), which is a debilitating disease due to which he is bedridden. She has also two minor children aged around 4 and 9 years, there is nobody to look after them as well as her husband. It is also stated that she has also suffered the agony of trial for the last 15 years, and she has also undergone judicial custody in various cases for a period of 99 days. In support of his contentions Ld. Counsel has relied upon the following judgment (i) 2015 CRI.L.J 4493 titled as Hiten Prasad Dalal Vs. CBI.
8. Lastly, the counsel for A3 has argued that convict is a retired RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 248 of 254 249 government servant aged 73 years, suffering from various chronic diseases such as high BP, Sugar, Asthama, Joint Pains. The accused is surviving and is dependent upon the aid and assistance of his wife. The convict was not even able to attend the court without the assistance of his wife. It is also stated that in case he is detained in the prison his wife will go into depression and may take some extreme step. It is also stated that he has also undergone the agony of trial for the last 15 years, therefore lenient punishment may be awarded to him.
9. I have gone through the rival contentions. It has been held in judgment Roop Chand Vs. State(CBI), reported as 2011 Legal Eagle(DHC) 42 that (8) The circumstances which could be considered in alleviation of punishment can be the minority of the offender, old age of the offender; the condition of the offender, i.e wife, appretice; and the state of health and the sex of the delinquent.
10.The crux of the above judgments relied upon by the RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 249 of 254 250 prosecution as well as by the convicts is, that criminal sentences should be (i) fair, (ii) proportionate and (iii) humane.
11.Any sentencing policy failing to meet these three standards also fails test of rationality in my view. It is often said "love of money is the root of all evil". There is also an notion amongst people that nearly everyone commit crime, only the poors are generally punished for it.
12.Now what should be the approach of this court in sentencing these convict persons in the peculiar facts of the present case stated above, whether it should be reformative, correctional, compensatory or retributive.
13.Should the Society/tax payers bear the expenses of continued incarceration of these convict persons after 20 years of the incident, more so when the matter has been finally settled with the IFCI in the DRT, nothing remains due to them, or they should pay some sort of compensation to the society in order to redeem themselves or they should be given some severe deterrent punishment which should serve as lesson to others.
14. Answer to this riddle lies in between i.e the middle path, RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 250 of 254 251 which would be, they should be given adequate punishment commensurating their crime as well as they should also compensate the society for the cost incurred on them, during the investigation(s), prosecution, trial, incarceration, as they have the means to do so. Why should society bear the cost of such convicts, who did not commit the crime out of passion, need, or poverty, but out of sheer greed for more money at the expense of public financial institutions/public insurance company. They should compensate the society in some measure to redeem themselves.
15. Now what should be that redemption, I am of the considered opinion in the facts of the present case, they should pay back some compensation to the society at large, which should be utilized to control the spiraling pollution which is bleeding the residents of Delhi at present, which is the need of the hour.
16.Regarding A1 considering his age of 66 years and the fact that she is suffering from various ailments and also the fact that she has already suffered incarceration for more than one year during trial in various cases. Interest of justice shall be met if the said convict is sentenced to R.I for one year and fine of Rs. 2 lacs U/s 120B IPC r/w S 420/467/468/471 IPC and RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 251 of 254 252 Section 13(1)(d(iii) r/w Section 13(2) of PC Act 1988, in default of payment of fine SI for 4 months, Further A1 is also sentenced to R.I for two years alongwith fine of Rs. 5 lacs U/s420 IPC, in default SI for 6 months, similarly she is also sentenced to R.I for 2 years each U/s 467/468 IPC and a fine of Rs. 5 lacs each, in default SI for 6 months each. A1 is also further sentenced to RI for one year U/s 471 r/w S 465 IPC and a fine of Rs. 5 lacs, in default SI for 4 months.
17. Regarding A2 it has come on record that, she has two minor children aged around 4 and 9 years and her husband is also suffering from debilitating diseases i.e Multiple Sclerosis(Progressive), who is bedridden and she has also undergone incarceration for almost 99 days during trial in some other cases. She was also quite young at the time of incident. Therefore considering the overall circumstances, Interest of justice shall be met if the said convict is sentenced R.I for one year and fine of Rs. 2 lacs U/s 120B IPC r/w S 420/467/468/471 IPC and Section 13(1)(d(iii) r/w Section 13(2) of PC Act 1988, in default SI for 4 months. A2 is also sentenced to R.I for three years alongwith fine of Rs. 5 lacs U/s 420 IPC, in default SI for 6 months, similarly she is also RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 252 of 254 253 sentenced to R.I for three years each U/s 467/468 IPC and fine of Rs. 5 lacs each, in default SI for 6 months each. Further A2 is also sentenced to RI for one year U/s 471 r/w S 465 IPC and a fine of Rs. 5 lacs, in default SI for 4 months
18. Regarding A3 most lenient view is required to be taken, as he is aged 73 years at present and he is suffering from debilitating diseases like diabities, high blood pressure and he also requires constant need of one of his companion i.e his wife as it was stated that no children was living with him to look after him, as his son is residing abroad. Therefore interest of justice shall be met if the said convict is sentenced to R.I for one year and fine of Rs. 20,000/ U/s 120B IPC r/w S 420/467/468/471 IPC and Section 13(1)(d(iii) r/w Section 13(2) of PC Act 1988, in default SI for 4 months. He is further sentenced to R.I of one year and fine of Rs. 50,000/ U/s 13(1)
(d)(iii) r/w Sec 13(2) of PC Act, 1988, in default SI for four months.
19. Out of the above fine of Rs. 40 lacs imposed upon A1 and A2, Rs. 35 lacs be deposited with the Delhi Pollution Control Committee for the amelioration of pollution conditions in Delhi, as discussed above, which though a very small symbolic step, RC NO. 1(E)/1998 CBI vs. Rita Singh & Ors 253 of 254 254 yet will be of some help in the said movement, as said Neil Armstrong "that one small step for a man, one giant leap for mankind'
20. All the sentences of all the convicts shall run concurrently with each other. Convicts shall also be given the benefit of Section 428 Cr.P.C for the period already undergone by them during the trial(if any). Copy of the judgment and that of point of sentence has been given free of cost to all the convicts. It is ordered accordingly.
ANNOUNCED IN THE OPEN COURT
ON 11.12.2015 (SANJEEV AGGARWAL)
Special Judge,
CBI03(PC Act)
Delhi/11.12.2015
RC NO. 1(E)/1998
CBI vs. Rita Singh & Ors 254 of 254