Delhi District Court
- vs - on 1 March, 2008
1
IN THE COURT OF SH. DINESH KUMAR SHARMA, ADDITIONAL
SESSIONS JUDGE, DELHI.
SESSION CASE NO.02/2003
RC NO:3/85/CIU (E) IIND.
UNDER SECTION. 120-B,/420 r.w 120-B
IPC.
DATE OF INSTITUTION:27.1.1988
DATE ON WHICH THE JUDGMENT
HAS BEEN RESERVED:- 13.2.2008
DATE ON WHICH THE JUDGEMENT
HAS BEEN DELIVERED:-01.3.2008
STATE
-V E R S U S-
T. ROY,S/O LATE SH. H.R. ROY,
R/O AMBIKA PATTY, LANE OPPOSITE HITESH
VISWAS ROAD, SILCHER-788004,
DISTT. CACHAR, ASSAM.
JUDGEMENT
CBI has filed the chargesheet against the accused persons including the present one for the offence under Section 120 B IPC read with Sections 420/467/468/471/472 and 473 of IPC and substantive offence under Sections 2 420/467/468/471/472 and 473 IPC. Briefly the allegations were that accused persons in conspiracy with each other forged the documents i.e. passports, visa and procured foreign currency in violation of the rules on the basis of such forged documents. Accused persons were summoned and copies were supplied. The cognizance in this case was taken by the Ld. Chief Metropolitan Magistrate, Delhi. Accused Gul Mohd. and Ramesh Chander were granted pardon under Section 306 Cr.P.C. and therefore, Ld. Chief Metropolitan Magistrate vide orders dated 9.7.1999 committed the case to the court of Sessions.
All the accused persons except accused T.Roy pleaded guilty at the stage of charge and were convicted by my ld. Predecessor. Accused T. Roy faced trial for the offence under Sections 120 B and 420 IPC. Prosecution has examined forty witness in support of its case.
PW-1 Mr. Krishan Kant proved the complaint EX PW-1/A made by him as Deputy Director, Directorate of Enforcement at the relevant time.
PW-2 Sh. Tajinder Singh Dutta is a material witness who was posted as a Clerk at the relevant time in the same branch. PW-2 stated that his duty was to make entries in Ledger and to prepare vouchers. PW-2 deposed about the procedure of issuing foreign currency in Foreign Travel Scheme. He stated that passport of the passengers were used to be examined and an endorsement was used to be made of the dollars issued to the passengers. PW-2 stated that accused T.Roy was posted as an Assistant manager at that time. PW-2 identified the signatures of accused T. Roy on sixteen cheques, out of nineteen cheques issued by Pravez Alam Dost. These sixteen cheques are Ex. PW-2/E1 to Ex. PW-2/E16. The witness also identified the hand writing of accused T. Roy on three vouchers Ex. PW-2/F1 to Ex PW-2/F3. It was also deposed by PW-2 that debit voucher dated 3.10.1985 for amount of Rs.12,27,150/- (Rupees Twelve Lac Twenty Seven Thousand One Hundred Fifty only) also appears to be in the hand writing of accused T. Roy. The said debit voucher is Ex. PW-2/F-4. It also came in his testimony that accused introduced the Saving Account No. 622 of Pravez Alam Dost. The Current Account No. 305 of M/s Dost Travels was introduced by Sh. S. Chaudhary of M/s 3 Galina World Travels. PW-2 stated that Current Account of M/s Dost Travels was allowed to be opened under the signatures of Sh. N.K. Gupta, the then Deputy Manager. Similarly, the Saving Account of Mr. Pravez Alam Dost was also allowed to be opened by Sh. N.K. Sharma, the than Deputy Manager. PW-2 turned hostile regarding the debit voucher Ex. PW-2/F4 in the sum of Rs. 12,27,150/- (Rupees Twelve Lac Twenty Seven Thousand One Hundred Fifty only). He stated that initially a cheque was issued but on account of some over writing and some error in that cheque, voucher Ex. PW-2/F4 was prepared. In the cross-examination conducted by the prosecution, PW-2 denied the suggestion that he is deliberately concealing the facts to help the accused.
In the cross-examination, PW-2 stated that they used to receive bunch of Passports from other Travel agents besides the Travel Agency of Pravez Alam Dost. PW-2 deposed in the cross-examination that accused, as his senior, has never asked him to do any favour to the parties regarding issuance of foreign currency. It also came in the cross-examination of PW-2 that accused was not the over all office incharge of the Foreign Exchange Department. The witness accepted the suggestion that all the transactions in the bank were required to be signed by two bank officials. PW-2 admitted in the cross examination that the foreign exchange which was released on 5.10.1995 infact related to the transactions of 3.10.1985. It also came on record that transaction was done under joint supervision of accused and Sh. R.S. Goel. It is an admitted case that 46,000 US $ were duly released after the senior Bank officials conducted the enquiry. In fact on 3.10.1985 the total transaction was of 1 lakh US $. Out of this transaction, 46,000 US $ were found to be correct and the remaining 54,000 US $ were never actually delivered. The debit authority of 54,000 US $ was not issued and it came in the evidence of PW-2 that it is still lying in the Foreign Exchange Department of the Head Office. PW-2 admitted in the cross -examination that there was no guidelines to the concerned officials of the bank dealing with foreign exchange to check the genuineness of Passport/Visa. It also came in the cross examination of PW-2 that the personal presence of traveller was made mandatory only vide Circular No. 4 SPA Circular No.2 A.M. (F.L. Series), Circular No.1, dated April 7, 1986. It is also a matter of record that before 4 TC form and A2 form being furnished before the bank, it was duly used to be verified by Railways/Airlines Authority. The bank officials were not supposed to verify the Passport/Visa from the issuing authority. PW-2 also admitted in his cross-examination that blank cheques were used to be received from the Travel Agencies for issuance of TC/FTS and bank officials used to fill up the contents in the cheques after calculating the rates of exchange.
PW-2 stated that accused used to fill up these cheques as he was dealing with the work of all Travel Agencies. In respect of the debit voucher vide which the amount was transferred from the current account of Pravez Alam Dost on 3.10.1985, PW-2 stated that infact in the morning Pravez Alam Dost had handed over blank cheques for debiting his CD account but since there was some over writing in it, the same was not used. It was stated that debit offset was prepared by the accused as per telephonic instructions from Pravez Alam Dost. PW2 also stated in the cross examination that in the enquiry conducted by the bank officials on 4.10.1985 no irregularity was found. It also came in the cross examination of the witness that all Travellers cheques were used to be kept in an almiarh having one lock, but it could be opened with two un-identical keys used simultaneously. These keys were used to be kept by the Manager and the Deputy Manager. It is not disputed that deliveries of the TCs were given from 5th October onwards. It also came in the cross examination of PW-2 that regular inspections used to be carried out by the Foreign Exchange Department, RBI and the Vigilance Branch of the Bank. Rather, PW-2 stated in the cross examination that it was accused only who found some irregularity in the passport of Zamila Begum and he brought it to the knowledge of his senior Sh. R.S. Goel.
In the cross-examination, PW-2 admitted that he assisted accused T.Roy on 3.10.85 in checking and completing formalities in documents relating to customers brought by Pravez Alam Dost of Dost Travel. He stated that together they checked Railway Verification A2 Form, TC Application and the passport of the passengers and their signatures/thumb impression as per FTS Scheme. It also came in the cross examination that documents of the passengers submitted by Pravez for release of one 5 lakh U.S. $ remained in the custody of bank for checking and verification. He stated that on 4.10.85 N.C. Dutta and B.K. Gandhi came from regional office and verified all the documents and they did not find any apparent irregularity and approved the release of foreign exchange to the passengers of Dost Travels and only thereafter the Travellers cheques were prepared against the passport. It is a matter of record that the transaction dated 3.10.85 was not cancelled. PW 2 also stated that at the time of delivery of cheques to customer accused also brought to the knowledge of his senior Sh. R.S. Goel the irregularity found in the documents of Batul and Sayedan. It was also stated that consequent to this TCs were not released to Batul, Sayedan and Zamila Begum. PW-2 also admitted that debit authority was not given by their bank to American Express Bank in respect of 54,000 US $.
Sh. R.S. Goel, (PW-3) was the Branch Manager at the relevant time. He stated that procedure for issuance of Foreign Travel Cheque under FTS Scheme was that the passenger had to deposit Form A-2 in duplicate with a valid Passport and a Visa to visit abroad with return air tickets or rail ticket and then only the foreign exchange was processed. He stated that it was the duty of the official to see whether the A2 form, Passport and Visa were in order and it was only then the foreign exchange was issued. He also stated that Traveller Cheque under the scheme were to be issued only after obtaining signatures of the passengers on the Travellers Cheque. An endorsement was also required to be made on the passport as well as rail/air ticket. Sh. R.S. Goel stated that on 4.10.85 he received an anonymous call regarding the issuance of one lakh blank US $ Travellers Cheque. He stated that next day in the morning, the accused who was the officer in charge and Assistant manager of the Foreign Exchange Department of the Bank told that though formally the foreign exchange has been issued but formalities were yet to be completed. He stated that an enquiry was conducted on 4.10.1985 by Mr. N. Dutta and Sh. B.K. Gandhi and an instruction was issued to not to issue any foreign exchange until the passenger comes in person to collect the exchange. An order to this effect was issued. However, after some time PW-3 R.S. Goel noticed a person moving around in the bank with the blank Travellers cheques and passport. That person was found to be 6 proprietor of M/s Galina World Travels and he was found in possession of 1500 blank TCs. However, PW-3 stated that later in the evening, three passengers came in person in the bank and above TCs were issued after verifying their credentials. PW-3 also deposed about the irregularity found in the Passports and A2 Forms of Zamila, Sayedan and Batul. PW-3 stated that foreign exchange in the sum of Rs. 2500 US $ were issued to Batul, whereas there was no visa on her passport. PW-3 stated that accused handed over passport to Batul who ran away from the Branch.
In the cross-examination PW-3 stated that on 5.10.85 Pravez Alam visited the bank with 29 passengers and the foreign exchange was released after verification. He also admitted that bank started releasing the TCs on 5.10.85 against the applications moved on 3.10.85 for issuance of foreign exchange worth $ one lakh. In total, the foreign exchange was issued to 26 passengers in the sum of 46,000 US $. Further, in the cross examination, PW-3 stated that N. Dutta had asked him to hand over blank TCs in the sum of 1500 to proprietor of Galina World Travels. PW-3 admitted in the cross examination that as per Manual of the Branch, staff/officers is competent to introduce account of the bank customer. PW-3 also admitted that in the inspection conducted by N. Dutta and B.K. Gandhi they did not find any irregularity in the transaction relating to 1 lakh US $ and the debit entry from the account of M/s Dost Travel on 3.10.1985. PW-3 also admitted in the cross examination that every transaction pertaining to the release of foreign exchange is to be jointly supervised by two officers of the bank. However, immediately thereafter he stated that it is not correct.
Sh. Devender Kumar Chawalia (PW-4) was also in Foreign Exchange Department at the relevant time. He stated that during the period May1985 to December 1985 the accused was looking after the work of Outward Remittance of Foreign Exchanges and Import Payments and Sh. Tajinder Singh Dutta (PW-2) was his assistant. He proved the photocopy of Outward Remittance Register. The witness deposed that in the bank, the passenger was required to fill up for A2 and this A2 form was used to be released after showing of passport and confirmed ticket. The ticket issuing agency was also supposed to declare the eligibility as to the foreign currency. PW-4 stated that A2 7 form was required to fill up by the Traveller and it should have been checked and the signatures on A2 form and the Passport were to be verified by the officer of the bank. PW-4 stated that requisition slip was required to be signed by the purchasers before the issuing authority. He stated that there was no procedure to issue blank travel cheque without the signatures of the purchasers. The witness admitted that all the rules of Foreign Exchange prevailing October,1985 was governed by Exchange Control Manual of RBI, Mumbai, 1978 amended upto date by issue of AD (GP) and AD (MA) Circulars issued by the Central Office of RBI, Mumbai from time to time. PW-4 also admitted that as per rules it was the responsibility of the ticket issuing agency as per declaration in the FTS form to ascertain the bona fide and genuineness of the Travellers and his eligibility to travel under FTS after comparing his signatures/thumb. He stated that the officers of the bank could have refused to issue foreign exchange only if he has some reason to doubt. PW-4 also admitted that as per rules A-2 form was not required to be issued in presence of bank official when a genuinely certified FTS declaration form is produced. PW-4 also admitted the suggestion that as per rules applicable to all type of travels for issuance of TC as per para 15 B9 (Vol.I) (II) of EC Manual of recording of first signatures on TC in front of the bank official was made mandatory only by RBI vide AD (MA) Circular No.4 dated 7.4.1986. However, the witness stated that in order to protect the interest of purchaser of Travellers cheque, the signatures were used to be obtained at the time of issuance. The witness also admitted that in the TC application form also there was no mandatory instruction for taking the signatures at the time of its issuance .PW-4 admitted that all work in United Bank of India, Janpath Branch was used to be supervised by two officers and all the persons were jointly and equally responsible. He also admitted that all blank TCs, printed debit authorities and TC purchaser application form were used to remain in the joint custody of the Manager and Deputy Manager.
PW-5 Q.L. Khanijoy and PW-6 V.N. Mohanan are the witnesses regarding specimen of Pakistan Visa and the specimen signatures of officers signing Visas in the 8 Pakistani Embassy. In the cross-examination PW-6 stated that he is not aware if the specimen signatures and rubber stamps and specimen on Visa certificate of officials of Embassy of Pakistan was available with the Banks.
PW-7 Sh. Brijender Kumar Gandhi, the then Assistant Manager United Bank of India was posted in the Regional office of the Bank at the relevant time. He accompanied Sh. N. Dutta to the Janpath Branch of UBI Bank on 4.10.85 upon receiving of an anonymous calls that travel cheques are being issued without taking any consideration .
PW-7 stated that on verification no substance was found in the anonymous call.
However, he stated that during enquiry he found some blank TCs and, therefore, Branch Manager was instructed to issue the cheques after verification of the ticket to Travellers.
He also stated that Foreign TCs should not have been issued to any other person except the Travellers. In his cross examination, PW-7 stated that he does not remember whether he had stated to the CBI that he had seen some blank TCs in the file or not. Infact, the enquiry was only regarding whether the TCs were issued without any consideration.
PW-7 stated that it was found that TCs were issued against consideration.
Sh. T.R. Krishnan (PW-8) had succeeded the accused. He also deposed regarding the procedure of the issuance of foreign exchange under FTS/NTS Scheme. He basically deposed regarding the procedure adopted by him for the issuance of FTS. In the cross examination, PW-8 stated that he has no personal knowledge about this case and he has deposed only in accordance with RBI Rules.
Sh. R.K. Dubey, (PW-9) was examined in detail. He primarily investigated the case from the angel of violation of FERA. The enquiry was initiated on the basis of a 9 secret information that there was withdrawal of foreign currency on the basis of fraudulent documents. PW-9 stated that accused was also arrested under FERA. PW-9 produced on record the true typed copy of the statement made by the accused to IO.
These copies have been exhibited as PW-9/A1 to Ex PW-9/A6. The originals of these statements were not produced. It is a settled proposition that merely by putting exhibit on photocopy, such document does not become per se admissible. A document is required to be proved in accordance with the provisions of Indian Evidence Act. PW-9 deposed regarding endorsement made in the handwriting of accused relating to issuance of foreign exchange. PW-9 also stated that during investigation conducted by him the entries made regarding addition of the name of children were found to be forged. The document Ex.
PW-3/36 dated February,17,1983 indicates that the agencies authorized to sell foreign currencies were instructed to adhere to following conditions:-
1. The amount sold does not exceed the relative FTS/NTS entitlement i.e. US$ 500 and US $ 250 respectively.
2. Traveller produces triplicate copy of FTS/NTS declaration form and the money changer certifies the declaration form in the space provided after satisfying himself that the Travellers is entitled to the facility in terms of Part H of SPM.
3. The sale is made after verifying the passport and passage ticket held by the Travellers to ensure that they conform to the details furnished in the declaration form.
4. The sale is duly endorsed on the passport of the Travellers under the stamp and signature of the money changer.
5. The Travellers is not combining travel under FTS with travel under 10 NTS, with visits abroad on export promotion and other business grounds or with Haj Pilgrimage.
6. The Travellers has not drawn foreign exchanger under a blanket permit (issued under either the RBI Scheme or the ITC Scheme) for the same foreign visit..
The sum and substance of the testimony of this witness was that the foreign currency was issued to the person who was not eligible for it. In the cross examination Pw-9 admitted that he is not in a position to furnish any rule which could indicate that the presence of the Travellers was must at the time of issuance of foreign exchange. He also admitted in the cross examination that he had deposed only on the basis of investigation conducted by him in FERA case. It also came in the cross examination that 54,000 US $ have been encashed by the Foreign Exchange Regulatory Authority. He stated that as far as 54000 US $ were concerned, there was no loss of exchequer to the government.
However, PW-9 stated that since 46000 US $ had not been recovered, it was a total loss to the government exchequer. In the cross examination PW-9 admitted that rule regarding personal presence of the Travellers at the time of issuance and delivery of TC was incorporated in the year 1986.
PW-10 Sh. MG Mathur was witness regarding specimen signatures of Sh. M.L. Verma, the then Superintendent at Regional Passport Office, Delhi.
PW-11, Sh. Bhasker Sarkar deposed regarding the procedure of issuance of foreign exchange. He also deposed that A2 form and foreign exchange purchase application were to be filled up by the traveller and sign in front of the bank official.
11PW-12 Sh. Anand Hari Aggarwal was a formal witness. He deposed regarding the procedure of suspension of immigration during the period the Travellers visits abroad.
PW-13 Sh. Brij Mohan is only a witness in regard to signatures of Sh. M.C. Tangry the then Protector of Immigrant in the year 1986.
PW-14 Sh. Mohan Lal Verma was a witness regarding procedure of addition of name of children in the Passport of Passport Holder. He also deposed that entry regarding addition of children in Passport No.X-645534 is forged. Similar statement he made regarding the Passports No.X-645532,X-612497,V-801353,N-714060,U-304348.
Sh. M.S. Tangry (PW-15) proved his letter PW-13/A. PW-16 Sh. Nand Kishra Gupta was also a bank official. He had signed the account opening form of M/s Galina World Travel. He deposed that accused had introduced the said account. PW-16 had also signed on the account opening form of Current Account 305 of Pravez Alam Dost. He had also signed the account opening form of Saving Bank account of Pravez Alam Dost. The signatures of accused was identified on the same. The witness was declared hostile as he could not identify the signatures of Pravez Alam Dost. In the cross examination PW-16 admitted that in the bank all documents are signed by two officials and no transaction can take place on the signatures of a single person/official. In the cross examination N.K. Gupta admitted that keys of the almirah from where all the documents relating to foreign exchange, currency notes and travel cheques were used to be kept by the manager and himself.
PW-17 Izhar Hussain Kazmi, PW-18 Akhil Ur Rehman, PW-19, Masood Ali PW-
20 Mst.Feeko, PW-29 Ayesha, PW-31 Ikram Illahi, PW-33 Multaz Ahmed,PW-16 12 Mst.Wahedan, PW-37 Wakil Ahmed, PW-38 Mohd. Ismail painter were primarily the witnesses who stated regarding forgery in their passport or that they never came to take the foreign exchange.
Sh. Shayam Sunder Khanna, PW-21, Sh. K.C. Verma PW-23, Sh. R.S. Gosain, PW-30, Ms. Usha Kumar PW-32, Sh. Rohtash Singh PW-35, Ms. Priamroz Sharma PW-
39 were the witnesses from the passport Office who deposed regarding the forgery in the passports.
Sh. Prabhu Dayal, the then Dy. Secretary in the Ministry of External Affairs (PW-
22) Sh. H.R. Khautumria (PW-24) were the witnesses from External Ministry who deposed regarding verification of visa appearing on the passports. PW-25 Sh. J.S. Ahluwalia was the witness of specimen signatures of Sh. S.M. Zaidi. Sh. D.N. Tripathi (PW-26) identified his signatures on FTS form of Ayesha Begum. He was posted as Booking Clerk at Old Delhi Railway Station. Sh. M Hussain (PW-27) and Sh. Anil Khanna (PW-28) were the witnesses regarding specimen signatures of Mohd. Matloof and M. Ahmed.
IO Inspector Harish Chander Joshi appeared as PW-40. IO stated that investigation revealed that during the year 1984-85 accused Pravez Alam Dost and T.Roy alongwith some other persons entered into a criminal conspiracy, the object of which was to siphon of the foreign exchange out of India to Pakistan by committing forgery in passports, visas and other relevant documents. IO stated that under this conspiracy Pravez Alam Dost opened a S.B. Account in the United Bank of India, Janpath Branch. This account was introduced by Accused T. Roy. Lateron accused Pravez Alam dost opened 13 another current No. 305 in the same branch. Accused T. Roy had also introduced S.B. Account of one Sh. S. Chaudhary of M/s Galina world Travels and said Sh. S. Chaudhary had introduced the current bank account of accused Pravez Alam Dost. IO stated that under this conspiracy accused Pravez Alam Dost forged the passport, visa and thus got issued the foreign exchange fraudulently. IO made a detailed statement regarding the forgery committed in the passport of various travellers. He stated that on the basis of these forgery excess amount of foreign exchange was issued. IO also seized various articles used for the purpose of committing forgery in the passports. It also came in the statement of IO that two approvers namely Ramesh Chander and Gul Mohar was granted pardon in this case. In the cross examination, IO admitted that particulars given to the bank by Pravez Alam Dost at the time of opening of the account were found to be correct. In the cross examination IO stated that he did not make any investigation regarding 46000 US $ which were delivered on or after 5.10.1985 after due verification by the bank officials. In a specific question to the IO by the Court whether he found role of T. Roy in the forgery of passport/visa, the IO stated that the active involvement of accused T.Roy was not found in the act of forgery, but none of the passport holder whose passport was presented for foreign exchange came there to withdraw the foreign exchange from the bank. IO stated that infact Pravez Alam Dost was a link between the purported travellers and the accused. In another specific question to the IO by the court, the IO admitted that the role of the present accused was that he issued the foreign exchange without the traveller being personally present. IO also admitted that he did not verify the RBI Rules. It also came in the cross-examination of IO that FTS form was 14 required to be attested by the ticketing authority. He also admitted that in this case all the FTS form were duly certified by the ticketing authority. IO also accepted the suggestion that the ticketing authority in this case attested the FTS form only after getting themselves satisfied.
In his statement U/S 313 Cr.P.C. accused stated that he was not independently responsible for looking after the sale of foreign exchange. The accused stated that he was jointly responsible with other officials of the bank. The accused stated that the process of issue of foreign travellers is prescribed in Chapter XV of the Exchange Control Manual of 1978. He stated that Chapter-XV-B.11 (1) of that Manual as valid upto 3.10.85 was dealing in FTS Rules and Regulations. He stated that he was only required to comply the above Rules and Regulations. The accused also stated that the issuance of traveller cheque for any kind of travel used to be covered in Para-XV B.9 (1) (2) vide which it was not mandatory for the traveller to come to the bank in person to collect foreign exchange once his identity and bona fide has been duly certified by the ticket issuing agency. He stated that if the ticket particulars given in the FTS form confirms with the ticket produced by the traveller alongwith his passport in the bank, the traveller was not required to come in person. He also stated that all the traveller cheques were used to be issued as per directions and consent of the Manager. In his statement, the accused interalia stated that:-
"in the transaction dated 3.10.85 traveller cheques of 46,000 US $ was issued to the respective passport holder after enquiring from them that they wanted to visit Pakistan and that they have already given this money to Pravez for their visit to Pakistan 15 and after obtaining their thumb impression and signatures on the traveller cheque jointly by me and manager, R.S. Goel. These TCs were physically delivered on 5.10.85. On 3.10.85 some of the travellers had visited the bank alongwith Pravez Alam Dost. Pravez Alam dost submitted passports, duly certified FTS form, form A2 duly signed and thumb impressed by the traveller and TC Purchaser application form duly signed/thumb impressed by respective travellers for issuance of 1 lakh US $ to 47 passport holder accompanied about 20 to 25 passport holders and since all the passport holders were not with him he was asked to come with all the passport holders to which he said that he would come on 05.10.85 alongwith all the passport holders to collect the Foreign exchange from the bank, hence no foreign exchange was prepared on 03.10.85. Only figure for sale of foreign exchange was reported to Head office and all the passports were kept for verification. Before undertaking the transaction, I went through all the passports and other documents and I found that all the documents contained the same signatures / thumb impressions as per their passport and as per signatures / thumb impressions appearing on the FTS form certified by the railways.
On 04.10.1985, before I asked T. S. Dutta, to enter all the applications in FRO register and prepared the $ against all the passports, at about 11 am, Mr. N. C. Dutta and Mr. B. K. Gandhi, from regional office came to me and said that they wanted to see the documents regarding issuance of 1 lacs US$ on 03.10.85 as they have received any anonymous call that $ 1 lacs had been issued in blank without proper documents. I told him that no $ has been brought out from the almirah on 03.10.1985 for issuance which can be verified from the TC stock register and from the custody of the travel cheque under Manager and Deputy Manager and the passports are again to be verified before foreign exchange are issued against them. Then, N. C. Dutta and B. K. Gandhi alongwith Mr. Ravi Kumar of Janpath Branch, verified all the documents and prepared a list of all the passport holder as per their total claim and after their verification, they did not find any irregularity in any of the document, they asked Mr. Goel that $ can be issued against all these passports and issued an office order stating that all future transactions for sale of foreign exchange should not be routed 16 through account of travel agents and the person should sign the cheque in banks officer presence. After that, Mr. Goel and Mr. N. K. Gupta, brought the traveler cheque of 1 lacs US$ from the almirah and handed over for issuance against the respective passports. In the meantime, T. S. Dutta entered all the particulars of the passport in the FRO register and prepared the voucher for credit of sale proceeds to head office giving date of transaction as 03.10.85. Usually, T. S. Dutta, prepared the TC against the passports but since it was already 5 PM, he left the bank and I was asked by Mr. Goel, to complete the formalities by preparing the traveler cheque against the respective passports and endorsed the same on the passports as per foreign exchange requirement. I sat up to 8 PM and completed all the formalities in his presence and in the presence of N. K. Gupta. On 05.10.85, Parvez Alam Dost, came with 29 passengers to collect the Foreign Exchange. Out of which 26 passengers were issued foreign exchange worth $ 46,000 US$ by me and Manager R. S. Goel after confirming from them that they wanted to visit Pakistan. They had already given money to Parvez Alam Dost and we recorded for signatures and thumb impression on the TC and on the passports were jointly signed by me and R. S. Goel, Manager. 3 passengers namely Jameela Begum, Shahidan and Batool were not given any foreign exchange though it was prepared against their passports due to some irregularities found at the time of delivery"
The plea of the accused is that infact on 3.10.85 no formalities were done and only the sale transaction was intimated to the Head Office. The case of the accused is that the passports were kept for verification.
It is not disputed that Saving Bank account of Pravez Alam Dost and Current Bank account of M/s Galina was introduced by the accused. However, he stated that as per bank rules the liability of introducer is confined to the fact that he should be in a position to identify/trace the account holder in case of need. The accused stated that 17 immediately after the incident a thorough investigation was conducted by the senior officials of the bank in this regard and in all the work done by him since 1981, no irregularity or illegality was found. The accused specifically stated that no departmental enquiry is pending against him in this regard. The bank also did not initiate any action against him and he has already been reinstated vide orders dated 11.5.1991.
Sh. V.N. Ojha, Ld. Counsel for the CBI has argued at length that prosecution has successfully proved its case against the accused. It has been submitted there are sufficient materials on record to connect the accused with the offence. It has been submitted that the prosecution has led cogent and creditworthy evidence on record to prove that accused was in conspiracy with the other accused persons and in pursuance of that conspiracy, foreign exchange was issued fraudulently on forged passports and visas.
It has been argued that the accused intentionally failed to follow the rules in order to execute the conspiracy and in furtherance of this conspiracy, the bank was induced to part with the lot of foreign exchange.
Per contra, Sh. Manish Kumar, Ld. Counsel for the accused has argued vehemently that there is no material on record to connect the accused with the offence. It has been submitted that there is no material at all to suggest that his client was also an actor in the alleged conspiracy along with the remaining accused persons. It has been submitted that infact accused was the victim and he has been cheated on account of the conspiracy amongst the other accused persons, who have already been convicted on their plea of guilt.
I have heard the Ld counsels for the parties and perused the record carefully.
18CBI has produced voluminous record in support of their case.
If we take a wholesome view of the case of the prosecution, the allegations are that accused persons entered into a conspiracy to procure the foreign exchange from the bank. In this conspiracy, either the passports were forged or in the passports, name of the children were added so as to enhance the number of US $. In this conspiracy, the visas were also forged. The alleged role of the accused is that he issued the foreign exchange on such forged documents and thereby cheated the bank. Primarily, the prosecution has proposed the following set of evidence of conspiracy against the accused T.R. Roy :-
(i) Accused introduced the saving bank account of Parvez Alam Dost;
(ii) Accused introduced Saving Bank Account of M/s Galina World Travels.
It is material because Sh. S.Chaudhary of M/s Galina World Travels introduced the current Bank Account of Pravez Alam Dost;
(iii) Accused filled in the cheques issued by co- accused Pravez Alam Dost against the payment of foreign currency;
(iv) Accused filled up a debit voucher form on 3.10.185 so as to transfer the money from the current account of Pravez Alam Dost against foreign exchange;and
(v) Accused issued the foreign exchange despite knowing fully well that documents are forged and fabricated.
It is an admitted fact that accused introduced the Saving Bank Account of Pravez Alam Dost, and he also introduced the current account of M/s Galina world Travels. It is also admitted that Sh. S. Chaudhary of M/s Galina World Travels introduced the current account of Pravez Alam Dost. It is also not disputed that the chequesEx PW 2/E1 to E16 19 sixteen in numbers were filled up by the accused. There is also no dispute regarding the fact that on 3.10.1985, a sum of Rs.12,27,150/- was transferred by way of the debit voucher Ex PW2/F4 from the account of Pravez Alam Dost.
Before proceeding further, it is worthwhile to mention here that the application forms alongwith documents were submitted to the bank on 3.10.1985. Subsequently, on 5.10.1985, 46,000/- US $ were issued and in respect of 54,000/- US $, nobody turned up either to take the delivery or to collect the passport. It is worthwhile to mention here that IO has stated in his testimony that he did not conduct any investigation in respect of 46,000/- US$, which were issued after due verification. This case is in respect of those applicants who did not turn up to take the delivery of foreign exchange or to collect the passport. It is not in dispute that the 46,000/- US $ were issued after due verification.
It is an admitted case that these 54,000 US $ went in the custody of FERA and amount against this has already been realized. As I have discussed above, the case of the prosecution is that accused T.Roy was in conspiracy with other accused persons and in pursuance of this conspiracy, the foreign exchange was issued fraudulently. There is no direct evidence of the conspiracy amongst the accused persons. The prosecution has not led any evidence as to any benefit having been taken by the accused from this transaction.
Before proceeding further, let us examine what are the ingredients of criminal conspiracy. Criminal Conspiracy has been defined in Section 120A of IPC. Section 120A IPC reads as under:-
"when two or more persons agree to do, or cause to be done,
(i) an illegal act, or 20
(ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof."
The ingredients of the offence of criminal conspiracy are:-
(1) That there should be an agreement between the persons who are alleged to conspire; and (2) That the agreement should be:
(i) for doing of an illegal act, or
(ii) for doing by illegal means an act which may not itself be illegal.
The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied. The "actus reus" in a conspiracy is an agreement to execute the illegal act. The execution of such act is not necessary. In order to prove a charge of criminal conspiracy, the prosecution is required to show the meetings of minds. It must be proved that there was a consensus to effect an unlawful purpose. It is not necessary that prosecution must prove communication between the conspirators. The prosecution is only required to prove the unison of minds. In Kehar Singh's case , AIR 1988 SC 1883, the Apex Court referred the passage in Russel on Crimes. It was interalia stated as under;-
"the gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion of the plan is not per se enough"21
It has often been stated that generally a conspiracy is hatched in secrecy and it may be very difficult to adduce direct evidence of the same. Thus, in such cases, prosecution may prove on record the act and conduct of the accused persons so as to indicate that such act and conduct were done in reference to their common intention. If two persons are pursuing the common object independently, it is not a conspiracy. But if they are pursuing the common object together, it is a conspiracy. Thus, some kind of physical manifestation of agreement must be there. There must be some transmission of thoughts sharing the unlawful design. I may mention here that in the charge of criminal conspiracy where the chain of offence have been committed, it is not necessary that each conspirator should know about the entire detail of the conspiracy. There may be several separate conspiracies. It is settled proposition that mere association is not sufficient to lead to the inference of conspiracy. The quintessence of the offence of conspiracy is of the forming of the scheme or agreement between the parties. The actual participation may not be necessary. The offence of conspiracy can be attributed against a person, only if he enters into an agreement to do an illegal act or an act which may not be illegal by illegal means.
Now the question is that suppose few persons have already entered into a conspiracy to do an illegal act and this set of person approaches another person to do an act which is not illegal. Would that person by doing this act become party to the criminal conspiracy? Similar question arose in Konappa Vs. Delhi Special Police Establishment, 1974, 2 Karnataka, LJ 333. In this case, an Auditor was approached by the members of Governing Council of a College to issue an expenditure certificate with regard to the funds expended on the college building on the basis of the utilization certificate issued by the Assistant Engineer, Public Works Department, and there was nothing in the bills invoices to arouse the suspension of Auditor. It was held that Auditor cannot be deemed to be party to the conspiracy of the governing council members of misappropriating the college building funds. The direct evidence in the case of conspiracy is rare. Therefore, 22 the circumstances before and after the occurrence have to be considered so as to return the finding about the conspiracy. Privacy and secrecy are the characteristic of conspiracy. Normally, a conspiracy is proved by circumstantial evidence and, therefore, cumulative effect of the circumstances has to be taken and into account. The circumstances cannot be considered in isolation. Conspiracy cannot be assumed from a set of unconnected facts. Suspicion, howsoever strong, cannot take the place of legal proof.
Now let us see that whether the prosecution has been able to prove its charge of conspiracy on the anvil of legal proposition as discussed above. It has to be ascertained whether the prosecution has been able to prove the meeting of minds between the accused T.R. Roy and the remaining accused persons. Even at the cost of repetition, it may be stated that undoubtedly, it was a long drawn conspiracy in which number of people were involved and the object of such conspiracy was really sinister. During that period the Nation was starving for the foreign exchange. Limited number of US$ used to be issued to the foreign travellers. In order to ensure that foreign exchange is not released to the unauthorized person specific procedure was laid down.
It may be recalled that remaining accused persons in this case pleaded guilty and were convicted at the stage of charge itself. The accused has not been charged for the offence of forgery of the passports and other travel documents. The only charge against the accused is regarding the conspiracy of procuring foreign exchange on the basis of forged documents. The accused has also been charged for the offence of cheating on the basis that foreign currency was issued on the forged documents. Thus, firstly it is to be ascertained that whether there was any conspiracy between accused T.R. Roy and Pravez Alam Dost and other accused persons.
23As I have discussed above, there is no dispute about the fact that accused T.Roy introduced Saving Bank Account No.622 of Pravez Alam Dost. It has also not been disputed that accused T.Roy introduced the Current Bank Account of M/s Galina World Travels. It has also not been disputed that S. Chaudhary of M/s Galina World Travels introduced the Current Account of Pravez Alam Dost. Another evidence proposed against the accused is that he filled up the cheques and also filled up the debit voucher form on the basis of which amount was transferred from the Current Bank account of Pravez Alam Dost. The question is whether these acts are sufficient to infer criminal conspiracy amongst the accused persons.
It is a cardinal principle of criminal jurisprudence that prosecution is required to prove its case against the accused persons beyond reasonable doubt. No criminal charge can be attributed against the accused persons unless proved by cogent and creditworthy evidence. The criminality cannot be fastened on the basis of surmises and conjectures. If the prosecution places certain circumstances, the chain of these circumstances should be complete. This chain must unerringly indicate towards the guilt of the accused. It must also exclude the innocence of the accused. While appreciating the evidence, the court is required to consider in totality the facts and circumstances of the case. Coming to the facts of the present case, the accused was a bank employee. This is the incident between 1982-85. The economy of the country was at slow pace. The business was not as grown as it is today. There used to be few nationalized banks. The people did not have the tendency to open the bank accounts. In those days the bank employees rather used to pamper the people for opening the bank accounts. In these circumstances, we will have to ascertain that whether simple introduction of a saving bank account by the accused makes him party to an offence, or can lead to inference that he was 24 part of the conspiracy. It has also to be kept in mind that no illegal transaction was committed from this saving bank account. CBI has tried to connect the accused further with the fact that he also introduced the account of M/s Galina World Travels and then S. Chaudhary of M/s Galina World Travels introduced the Current bank account of Pravez Alam Dost.
Accused in his statement has given plausible explanation that why he introduced the account of Galina World Travels. The circumstances proved by the prosecution are totally isolated and not connected to each other. I consider that to connect them would not be justified.
In 2004 CRI. L. J. 3042 "Manoranjan Das Vs. State of Jharkhand", the apex court held that accused merely by introducing co-accused to bank for opening an account cannot be held guilty in absence of any evidence showing involvement of accused in fraud committed by co-accused.
Now coming to filling up of 16 cheques and debit voucher. Again, the bank is an institution where transactions are carried on mutual faith and trust. It has come in the testimony of prosecution witnesses that it was a normal practice on the part of the consumers to leave the blank cheques and lateron the bank employee used to fill it up. The reason for this was that every day the rate of foreign exchange used to change and, therefore, there was uncertainty of amount. Similarly, in respect of debit voucher, PW-2 stated that earlier a cheque was issued by accused Pravez Alam Dost and then lateron debit voucher was issued because some error took place in that cheque. Thus, I consider that these two facts are also not sufficient in themselves to connect the accused with the offence. The plea of the CBI is that accused released the foreign exchange to the travel agents on the basis of forged documents and he intentionally over looked the forgery committed in the passports. It has been stressed that this fact alone 25 indicates that there was a conspiracy between accused T.Roy and Pravez Alam Dost. In this regard plea of the accused is that personal presence of the traveller was not necessary. The plea of the defence is that the application forms were submitted on 3.10.1985. On that day, no foreign exchange was released and lateron, the foreign exchange was released only to the persons who came in person. In this regard, the evidence led by the prosecution is also inconsistent and self-contradictory. Some of the prosecution witnesses have stated that personal presence of the travellers were not required. Some of them have stated that personal presence was required. Since the witnesses failed to give clear picture , it would be appropriate to turn the rules. The accused has all through stated that he had acted in accordance with the RBI Rules.
It has also come in the testimony of PW-2 that all the FTS rules are governed by para 15-B (11) (1) of the Exchange Control Manual of Reserve Bank of India, 1978 amended upto 3.10.1985 and the role of the bank was only to see the following:-
15-B (11) (1) (a):- The traveller holds a round trip ticket issued by carriers agents in India bearing a superscription that it is issued under the "Foreign Travel Scheme' and details thereof agree with the certificate given by the issuing carrier/agent on the declaration in form FTS.
(b):- The traveller produced the triplicate copy of declaration in form FTS duly completed by him/her and certified by the concerned airline/shipping company or their agent (c ) The traveller has not availed of any exchange release under the Scheme since the commencement of the previous calendar year.
(d) The traveller is not combining travel under FTS with travel under NTS, with visit abroad as export promotion and other business grounds and with Haj Pilgrimage.
(e) The traveller has not drawn foreign exchange under a blanket 26 permit (issue under either Reserve bank of India Scheme or the ITC Scheme) for the same foreign visit.
PW-9 specifically stated that he cannot produce any rule to show that physical presence of the traveller was necessary. The plea of the accused is that the rule was amended in the year 1986, so as to make the physical presence of the traveller necessary.
I have already reproduced the conditions for issuance of foreign exchange as issued vide Circular dated February 17,1983 by RBI Exchange Control Department. None of the rules reproduced above indicate that the personal presence of the passenger was necessary at the time of issuance of foreign exchange. No doubt, there was some negligence on the part of the accused. There are some glaring defect in the travellers documents. But it has to be kept in mind that in order to hold a person liable for criminal conspiracy, there must be meeting of mind between the accused persons. The prosecution witnesses have made self-contradictory statements. It has also come in the testimony of prosecution witnesses that no bank transaction could have been carried out under the signature of a single bank official. It has also come in the testimony of prosecution witnesses that entire travellers cheques were used to be kept in an almirah which could be open by two unidentical keys simultaneously. The accused did not have such keys. The foreign exchange could not have been issued under the exclusive signature of the accused. Mens-rea is also missing as had there been any criminal conspiracy, the foreign exchange could have been issued on 3.10.1985 itself.
In "Dasrathlal v. State of Gujarat" AIR 1979 Supreme Court 1342, the facts in brief were that Accused No. 1 allegedly forged receipts and collected donations from various persons with help of Accused No. 2. It was held that since 27 there was no evidence to show that Accused No. 2 was taken in confidence or that he knew that receipts were forged, accused No. 2 merely by accompanying accused No. 1 for collecting donations cannot be held guilty.
Similarly, in "A. K. Bose v. State of Bihar" AIR 1974 Supreme Court 1560 it was held that for the purposes of holding the accused guilty under S.420, the evidence adduced must establish beyond reasonable doubt, mensrea on his part. In this case the Accountant and Cashier of a Medical College Hospital were tried for an offence under Section 420. The prosecution case was that fictitious pay bills were prepared by the bill clerk and the amounts of the pay bills were drawn from treasury and disbursed to fictitious persons. The evidence against the accused was that it was the duty of the accountant to complete the Bill Book and get it checked and signed by the Deputy Superintendent which he failed to perform in the case of disputed bills and that the cashier failed to see that the payment was made to the correct or right person. In this case the apex court interalia held as under:
"Held that it could not be said that the requisite mens rea had been established against the accused. At the highest it was a case of an error of judgement or breach of performance of duty which, per se, could not be equated with dishonest intention which was one of the essential ingredients of the offence of cheating under S.
420."
In 1972 CRI. L. J. 849 (V 78 C 212) "Union of India Vs. J. S. Khanna", the apex court in a Full Bench, judgement, while dealing with a case in which senior military officials were tried for the offence of cheating and fraud, interalia held as under:-
" The fact that the procedure adopted by the officer 28 was not strictly in accordance with the rules prescribed for purchases would not by itself lead to the inference of fraud or any other criminality on his part. Even if gross negligence on his part is proved, it cannot be said that he was actuated with criminal intent. The fact that in some cases prices higher than those quoted by certain firms were paid cannot, without anything more, lead to the conclusion of any fraudulent intent or conspiracy".
It is settled proposition that there is no absolute standard of proof in a criminal trial and the court should not nurture fanciful doubts by exaggerated devotion to the rule of benefit of doubt. However, in a case of circumstantial evidence all the links in the chain of events must be established beyond the pale of reasonable doubt. The court has to be watchful and avoid the danger of allowing suspicion to take the place of legal proof. Conviction cannot be based on circumstances indicating that the prosecution case is quite likely to be true. For basing the conviction in a case governed by circumstantial evidence, the facts established must rule out any likelihood of innocence of the accused. Prosecution in the present case has utterly failed to bring the complete chain of evidence so as to prove the charges against the accused beyond reasonable doubt. I consider that CBI has miserably failed to bring cogent and creditworthy evidence on record so as to prove that there was any conspiracy between the accused persons. The prosecution has miserably failed to bring any material on the record that accused was aware of the fact that forged documents were prepared or produced so as to procure the foreign exchange. In absence of any such material on record no criminality can be attributed against accused T. ROY.
In view of the discussion made herein above, I consider that 29 prosecution has miserably failed to prove its case against the accused T.Roy. The evidence is flimsy, unreasonable and does not firmly establish the guilt of the accused. Hence accused is acquitted. Bail bond cancelled. Surety is discharged, endorsement if any, be cancelled. File be consigned to Record room.
ANNOUNCED IN OPEN COURT (DINESH KUMAR SHARMA)
TODAY ON: 1ST MARCH,2008 ADDL.SESSIONS JUDGE
DELHI.