Delhi District Court
Cbi No.04/09 Cbi vs . Sharad Gupta & Anr. on 15 December, 2012
IN THE COURT OF SH. R.P.PANDEY: SPL. JUDGE 01
(PC ACT) CBI : ROHINI COURT: DELHI
CBI No. : 04/09
CENTRAL BUREAU OF INVESTIGATION
Vs.
1. Sharad Gupta s/o Kailash Chand Gupta
R/oH.No.B19, Sarvodya Enclave, New Delhi
2. Nand Kishore s/o Lila Dhar
R/oC369, Brij Vihar
Sector8, POChander Nagar
Ghaziabad, UP
Date of Registration of FIR : 22.01.01
Date of Institution : 20.02.02
FIR No. : RC.1(S)/2001SIU.I/CBI/N.Delhi
Under Section :120B/420/201 IPC & 13 (1)(d) /13(2) PC Act,
1988
Arguments
concluded on : 17.11.2012
Date of Judgment : 15.12.2012
CASE ID No. : 02404R0507872002
CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.1 of 93
JUDGMENT
1. The case as set up by the prosecution is that a FIR bearing no.RC1(S)/2001/SIUI was registered on 22.01.2001 in CBI on the written complaint of Sh.J K Tanwar, Sr.Manager, Vigilance, Indian Airlines Limited (in short IAL), Northern Region, New Delhi, on the allegation of fraudulent refund adjustment against 29 air tickets by M/s Exchange Travel Services Pvt Ltd., Katwaria Sarai, New Delhi (in short 'agent' or 'ETSPL').
2. Investigation disclosed that accused/Nand Kishore (A2) was posted and functioning as Sr.Accounts Assistant in the Area Revenue Division (ARD) section of Indian Airlines Office, Safdarjung Airport, New Delhi during 19992000. Sh.Ajay Gupta was posted and functioning as an Office Superintendent in ARD CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.2 of 93Section, IAL, Booking Office, Safdarjung Airport during the aforesaid period. M/s Exchange Travels Services Pvt Ltd., Katwaria Sarai, New Delhi owned by accused/Sharad Gupta (A1) as Managing Director, was attached as domestic passengers sales agent with Indian Airlines. An agreement was executed on 20.09.1999 between the IAL and the agent. The code number allotted to M/s Exchange Travels Services Pvt Ltd. by IAL is 3880125.
3. Accused/Nand Kishore (A2) while working as Sr.Accounts Assistant in ARD Section, IAL, booking office, Safdarjung Airport, vide letter no.Ref.DFD/14/2801/1638 dated 13.09.99 written by Manager (Finance), ARD was allocated to deal with agents whose names started from alphabets C to F. Thus, he was deputed to deal with M/s Exchange Travels CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.3 of 93Services Pvt Ltd. also. During the period of Diwali, 1999, accused/Sharad Gupta (A1) paid a courtesy visit to the office of IAL, Safdarjung Airport and there he met accused/Nand Kishore (A2) and gave him one suit length as Diwali gift. Thereafter, accused/Sharad Gupta (A1) developed intimacy with accused/Nand Kishore during late 1999 and through Nand Kishore, accused/Sharad Gupta (A1) developed acquaintance with Sh.Ajay Gupta also who was working as Office Superintendent in ARD Section of IAL.
4. This acquaintance further developed into friendship and both these officials of IAL on being called by accused/Sharad Gupta visited office of M/s Exchange Travels Services Pvt Ltd., in the month of December, 1999, with a view to have easy money. Procedure of processing of AGTIII statements and refunded flight CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.4 of 93coupons and possibility of detection was discussed.
5. Thereafter, accused/Sharad Gupta (A1) Nand Kishore (A2) and Ajay Gupta during the month of December, 1999 hatched a criminal conspiracy to cheat IAL by obtaining double refunds on cancelled IAL tickets. In the said conspiracy, it was decided that accused/Sharad Gupta (A1), MD of M/s Exchange Travels Services Pvt Ltd. will prepare/get prepared certain dummy IAL tickets in US $ fare which will be presented to accused/Nand Kishore (A2) after cancellation, for adjustment of refunds by IAL. It was further discussed that at the time of submission for refund, jackets of refund claimed tickets will not be torn by accused/Nand Kishore and subsequently, tickets so presented will be given back by accused/Nand Kishore to accused/Sharad Gupta (A1) for submitting the same again for refund, second time. It was agreed CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.5 of 93that amount so received in the second refund will be shared by accused Sharad Gupta, Nand Kishore and Ajay Gupta in the ratio of 2:1:1 (half for accused/Sharad Gupta and one fourth each for accused Nand Kishore and Ajay Gupta).
6. In furtherance of the conspiracy so hatched accused/Sharad Gupta (A1) got prepared 29 dummy IAL tickets bearing nos.2101324345, 210264103738, 220010246063, 220010246567, 220010778789, 2200107796803 and 220010780613 by his employees, in false names on the pretext of showing huge turnover to avail overdraft facility. After preparation of these tickets the bills pertaining to these tickets were marked as "Dummy" meaning thereby that actually these tickets were not to be issued to anybody and indication was mentioned on the bills so as to avoid any confusion arising out of CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.6 of 93false bills in the names of companies/Government agencies concerned.
7. Accused/Sharad Gupta (A1) got cancelled above mentioned 29 IAL 'dummy' tickets and got prepared AGTIII statement for the first fortnight of January, 2000 which was submitted to accused/Nand Kishore (A2) and got adjusted refund of Rs.10,45,505/. Accused/Nand Kishore, without tearing the jackets of the tickets etc by misuse of his official position while working as public servant, returned all the 29 tickets to accused/Sharad Gupta along with AGTIII statements, within a few days, for submitting the same for refund second time.
8. In furtherance of criminal conspiracy accused/Sharad Gupta with malafide intention to cheat IAL, got prepared AGTIII CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.7 of 93statement in the second fortnight of February, 2000 in respect of 15 IAL ticket nos.2200102460 to 2200102463, 2200107787 to 2200107789, 2200107796 to 2200107803 out of above 29 tickets, knowing fully well that on these tickets refund has already been obtained. This AGTIII statement along with 15 tickets (on which refund was already adjusted in January, 2000) was got submitted to accused/Nand Kishore (A2) by accused/Sharad Gupta (A1) for adjustment of refund, second time. Accused/Nand Kishore knowing fully well that on these tickets refund has already been adjusted, by misuse of his official position, again accepted this AGTIII statement and allowed refund thereon.
9. In furtherance of criminal conspiracy, accused/Sharad Gupta with malafide intention to cheat IAL, got prepared AGTIII CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.8 of 93statement in the first fortnight of March, 2000 in respect of remaining 14 IAL ticket nos.2101325345, 2102641037 to 2102641038, 2200102465 to 2200102467, 2200107806 to 2200107813, out of above 29 tickets, knowing fully well that on these tickets refund has already been obtained. This AGTIII statement along with 14 tickets (on which refund was already adjusted in January, 2000) was got submitted to accused/Nand Kishore (A2) by accused/Sharad Gupta (A1) for adjustment of refund second time. Accused/Nand Kishore knowing fully well that on these tickets refund has already been adjusted by misuse of his official position, again accepted this AGTIII statement and allowed refund thereon.
10. In this way, refund of Rs.10,45,505/ was got adjusted by accused/Sharad Gupta (A1) twice on the same tickets with CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.9 of 93active connivance of accused/Nand Kishore (A2).
11. Out of Rs.10,45,505/ fraudulently obtained second refund of Rs.5,45,505/ was kept by accused/Sharad Gupta (A1) himself and Rs.2.5 lacs each were given to accused/Nand Kishore (A2) and Sh.Ajay Gupta. Thereby, accused persons cheated IAL and caused wrongful loss of Rs.10,45,505/ to the IAL and wrongful gain to themselves to the tune of Rs.10,45,505/ jointly and severally.
12. Again in the month of July, 2000 similar attempt was made by accused/Sharad Gupta when he had prepared dummy tickets to the amount of Rs.20 lacs. After canceling the same, refund was obtained from IAL. But this plan could not materialize second time as before adjustment of second refund, matter had CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.10 of 93come into the knowledge of the Indian Airlines Authorities.
13. With a view to conceal the illegal act copies of AGTIII statements for the first fortnight of January, 2000 were destroyed purposely by the accused persons. Further AGTIII statements for the first fortnight of January, 2000 was not sent to M/s Pacific Computers for processing with a view to avoid detection at the time of processing.
14. When the matter came to the know of IAL officers, accused/Sharad Gupta refunded the amount by 16 post dated cheques with a view to conceal the illegal act.
15. CBI after investigation filed charge sheet against accused/Sharad Gupta (A1) and Nand Kishore (A2) on CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.11 of 9319.08.02.
16. Sanction for prosecution of accused/Nand Kishore (A2) was obtained by CBI u/s 19 of PC Act and filed along with charge sheet. Sh.Ajay Gupta, whose name appears in column no.2 of charge sheet, was made approver.
17. Charge were framed against both accused persons u/s 120B r/w Section 420/201 IPC and Section 13 (2) r/w Section 13(1)(d) of PC Act, 1988, besides for substantive offence u/s 420 IPC against both accused persons and section 201 IPC and 13(2) r/w Section 13(1)(d) of PC Act, 1988 against accused/Nand Kishore (A2), to which they pleaded not guilty and claimed trial.
18. To prove the case CBI examined 42 witnesses and CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.12 of 93closed PE.
19. Entire incriminating evidence was put to accused u/s 313 Cr.PC. Accused/Sharad Gupta (A1) has taken a defence that from audit of final accounts and balance sheet of his company, he came to know that a sum of Rs.10,45,505/ was in excess and payable to IAL and it was he, who had brought this fact to the notice of IAL on 01.09.2000 on his own and made payment to IAL through post dated cheques. Accused/Nand Kishore (A2) also stated that he has been falsely implicated despite his past clean antecedents. The accused persons did not lead any evidence in their defence except for exhibiting of certain documents by accused/Sharad Gupta which are certified copies of certain orders passed by Hon'ble High Court in respect of arbitration proceedings between him and IAL and a letter vide CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.13 of 93which excess amount was refunded by IAL to accused/Sharad Gupta, after effecting recovery by invoking bank guarantee of M/s ETSPL.
20. I have heard the arguments advanced by Sh.A P Singh, ld.Public Prosecutor for CBI, Sh.M P Singh, ld.counsel for accused/Sharad Gupta (A1) and Sh.J K Das with Sh.Abdul Sattar, ld.counsels for accused/Nand Kishore (A2) and perused the records including written submissions filed by ld.counsels for accused/Nand Kishore.
21. The foundation of the prosecution case rests upon following allegations:
1. Accused Nand Kishore (A2) posted and functioning as Sr. Accounts Assistant Area Revenue Devision Safdarjung CBI No.04/09 CBI Vs. Sharad Gupta & Anr.Page No.14 of 93
Airport, New Delhi during September 1999 to 2000 was allocated the work of dealing with clients whose names started with alphabets C to F, thus including Exchange Travel Services Pvt. Ltd.. Sh. Ajay Gupta placed in Column no. 2 of charge sheet, was posted as Office Superintendent in the same office during that period.
2. Accused Sharad Gupta (AI) was Managing Director of M/s. Exchange Travel Services Pvt. Ltd. Katwaria Sarai New Delhi which was attached as domestic passenger Sale Agent by IAL with number as 3880125.
3. Both accused hatched a conspiracy whereby they agreed that accused Sharad Gupta (AI) will prepare/get prepared dummy tickets of IAL which will be presented to accused Nand Kishore (A2) for adjustment of refunds by IAL but jackets of those tickets will not be torn by A2, which will be given back to A1 by A2 for submitting the same for refund second time.
4. Pursuant to the said conspiracy A1 got prepared 29 dummy IAL tickets bearing nos. 2101324345, 2102641037 and 38, 2200107787 to 789 and 2200107806 to 813 which were subsequently got cancelled and submitted by A1 to A2 with AGTIII for the first fortnight of January 2000 and got the adjustment of the entire refund amount of Rs. 10,45,505/.
5. A2 returned all 29 tickets to A1 along with AGTIII CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.15 of 93
statement for the first fortnight of January, 2000 without tearing the jackets of the tickets.
6. A2 in furtherance of said criminal conspiracy and in order to cheat IAL got prepared AGT III statement in respect of 15 IAL tickets bearing nos. 2200102460 to 2200102463 2200107787 to 2200107789, 2200107796 to 2200107803 out of those 29 tickets, the refund of which was already adjusted vide AGT- III statement of first fortnight of January 2000, and got submitted the same to A2 for adjustment of refund second time, which was allowed by A2 by misusing his official position by accepting this AGTIII statement and allowing adjustment of refund thereon. Similarly AGT III in respect of remaining 14 tickets out of aforesaid 29 tickets was got prepared and submitted by A1 to A2 for adjustment of refund in the first fortnight of March, 2000 which was accepted by A2 and allowed adjustment of refund thereon.
7. Out of total sum of Rs.10,45,505 fraudulently obtained by A1 due to second refund Rs.5,45,505 was kept by himself and Rs. 2,50,000 each were given to A2/Nand Kishore and Ajay Gupta (accused in column no. 2 of charge sheet).
8. A1 has admitted double refund of Rs. 10,45,505 and refunded the same to IAL by issuing 16 PDCs.
9. With a view to conceal the illegal act, copies of AGT III statements for the first fortnight of January 2000 were purposely destroyed by accused Nand Kishore and it was CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.16 of 93
not sent to M/s. Pacific Computers for processing with a view to avoid detection at the time of processing .
10.A valid sanction for prosecution of accused public servant Nand Kishore was obtained under Section 19 of P. C Act , 1988.
PREPARING DUMMY TICKETS FOR CHEATING
22. PW3/Shally Thomas has deposed that she worked with M/s Exchange Travel Services Pvt Ltd of which accused/Sharad Gupta was MD, from first week of November, th 1999 till 24 July, 2000 and her job was to issue air tickets, make bills, prepare credit notes and visit the airlines office, take AGTs and collect blank air tickets from IAL. Ms.Rajni, Kapil, Ambily, Virender Kumar, Suresh, Rishi Gupta and Vimal also used to work with her and some of them used to visit IAL office for collecting tickets etc. She proved authority letters, Ex.PW3/A and CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.17 of 93Ex.PW3/B of Sharad Gupta authorizing her, Kapil and Rishi for collecting tickets from IAL. Similarly, she also proved delivery challans issued by IAL vide which she had collected air tickets mentioned therein as Ex.PW1/2, Ex.PW1/4 and Ex.PW1/5.
23. She testified that as and when some tickets were issued to a customer, an audit coupon was also used to be filled in and entry about the sale of the tickets used to be entered in the AGTI form, which were then sent to IAL. She proved five tickets prepared on 10.01.2000 by Ms.Rajni and herself bearing nos. 0582200107788, 7789, 7787 and 0582102641037 & 38 as Ex.PW3/C to Ex.PW3/G and sent to IAL along with AGTI form dated 10.01.2000 (Ex.PW1/H). She proved 8 tickets prepared by her bearing nos.0582200107806 to 813 as Ex.PW3/I to P which were sent to IAL with AGTI dated 14.01.2000 (Ex.PW3/Q), eight CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.18 of 93tickets bearing nos.0582200107796 to 7803 as Ex.PW3/R to Ex.PW3/Y sent to IAL vide AGTI dated 12.01.2000 (Ex.PW1/Z), tickets bearing nos.0582101325345, 0582200102460 to 2467, 0582101325343 and 344 prepared and sent to IAL with AGTI dated 03.01.2000 as Ex.PW3/Z1 to Z10 and the said AGTI is Ex.PW3/Z11. She deposed that she had brought all the above mentioned tickets with AGTI and AGTII forms before Nand Kishore who had put signatures on AGTII form in her presence which is Ex.PW3/Z12 (D15). Accused have not challenged these facts deposed by the witnesses.
24. PW3/Shally Thomas has deposed that she was told to prepare these tickets by accused/Sharad Gupta in fake names given by him as he wanted to avail overdraft facilities from the bank and such fake names were told to her by accused/Sharad CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.19 of 93Gupta.
25. She specifically deposed that accused/Sharad Gupta (A1) had told her to prepare these tickets in the fake names of NIEPA, NCERT, Sanskrit Vidyapeeth, ICGB, MKI and IIT etc., so as to show that these tickets have been issued to the Government agencies and all those tickets were of the longer sectors. She deposed that after preparation of these tickets, the bills pertaining to these tickets were marked as DUMMY meaning thereby that actually these tickets have not been issued to anybody and indication was mentioned on the bills so as to avoid any confusion arising out of fake bills against the names of companies concerned.
26. She proved that bill nos.11956 dated 14.01.2000;
CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.20 of 9311964 dated 15.01.2000, 11965 dated 15.01.2000, 11967 dated 15.01.2000 were prepared and singed by Ms.Rajni and proved as Ex.PW3/Z13 to PW3/Z16 and bill no.11972 dated 15.01.2000, no.11926 dated 12.01.2000 and no.11896 dated 11.01.2000 were prepared and singed by herself and put as Ex.PW3/Z17 to Z19. She deposed that all these bills were prepared on the instructions of accused/Sharad Gupta (A1) and bill books were maintained in the office in the normal business. She also proved the credit notes as Ex.PW3/Z20 to Z24.
27. No any specific question was put to PW3 in her crossexamination that the bills were not fake or no names were told to her by accused/Sharad Gupta for preparing tickets or bills. It is also not suggested to the witness that word "DUMMY" or "DUMMY TKTS" appearing on bills proved by her, were not CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.21 of 93written on his instructions or that those bills were not DUMMY but genuine bills.
28. Other witness such as PW2/Jagdish, PS to Vice Chancellor, Lal Bahadur Shastri Rashtriya Sanskrit Vidyapeeth, PW4/Geeta Prakash, Executive Secretary, ICGEB, PW5/P R Nayyar, Registrar, NIEPA, PW12/Puran Chand, Head of International Relation Division, NCERT, PW30/V Radha Krishnan, DR (Accounts), IIT Delhi and PW40/M Jayasoorian, Dy.GM, Sumitomo Mitsui Construction Company Ltd have also been examined to corroborate the testimony of PW3/Saly P Thomas that they or their institutions had not asked accused/Sharad Gupta (A1) or his company to book tickets for their personnel.
CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.22 of 93
29. During crossexamination she had denied that she is deposing falsely at the instance of CBI or giving wrong statement against accused/Sharad Gupta (A1) because she had bad relations with him or that he had removed her from the services. The testimony of PW3/Saly P Thomas has remained unscathced during her crossexamination. It is natural and truthful which inspires the confidence of the court.
30. PW6/Rajni Bhardwaj has proved tickets prepared by her as Ex.PW3/C, D, E and Ex.PW3/Z3 to Z10, credit notes, Ex.PW3/Z22 to Z24 and bills in bill book, Ex.PW6/1 to 4. She deposed that she prepared these tickets on the asking of accused/Sharad Gupta (A1), who told her that the same are being prepared for claiming the overdraft from the bank. Similarly, PW11/Kapil Sharma has also deposed that he had also prepared CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.23 of 93a large number of tickets for various institutions like NIEPA, NCERT, ICGB, Sanskrit Vidyapeeth etc to avail overdraft facility from the bank for showing increase of the sale and all these tickets were prepared by him on the instructions of accused/Sharad Gupta (A1) and all those tickets were isued in US $ in which there was no cancellation fee.
31. I find that there is nothing on record to show that accused/Sharad Gupta (A1) or his companyM/s Exchange Travel Services Pvt Ltd ever applied or availed overdraft facility from the bank and even otherwise overdraft/credit facility limit is sanctioned by the bank on the basis of net sales and projected turnover, so the canceled tickets could not have rendered any help to ETSPL in availing a larger credit limit from Bank. Therefore, clearly the ploy of getting the tickets issued in the fake CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.24 of 93names and then getting the same cancelled in bulk was part of his design to cheat the IAL. Obviously the concerned employees were told that the tickets in fake names were being issued in order to avail overdraft facility from bank so that they should not smell any foul in it.
Submission of AGT form to IAL with 29 cancelled air tickets without tearing their jackets for first fortnight of January, 2000 and getting adjustment of Rs.10,45,505/.
32. PW8/Lakshmi Narayan has been examined to the effect that software YATRA was developed by him which was loaded in the computer of M/s Exchange Travel Services Pvt Ltd. sometimes in the year 1998 and he had imparted training to the employees of M/s Exchange Travel Services Pvt Ltd. for working in the said YATRA Software. He deposed that he had referred one Mr.Virender, who was earlier working with M/s Air Crews, CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.25 of 93Hauz Khas, Delhi and using YATRA Software package, to Sharad Gupta. He had installed YATRA software package on computers of M/s Exchange Travel Services Pvt Ltd. He also stated that in AGT3 forms of M/s Exchange Travel Services Pvt Ltd. for the period of January, 2000, the year is mentioned as 1980 because of the fact that the system battery was not working properly and hence default system date of 1980 had come, whereas actual date on the AGT forms was of January, 2000, which was later on rectified by changing the battery. In this way the prosecution has explained the reason for AGTs for the year 2000 showing the year as 1980.
33. Sh.Virender Singh has been examined as PW9, who has stated that he was earlier working with M/s Air Crews Travel, Hauz Khas, New Delhi, sometimes in November, 1999, he had CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.26 of 93joined M/s Exchange Travel Services Pvt Ltd. as Accounts Assistant of which accused Sharad Gupta (A1) was the owner. He also deposed that he was referred by PW8/Lakshmi Narayan to M/s Exchange Travel Services Pvt Ltd. and during his posting S/Sh.Sudesh Kumar, Nasir Ahmed, Rajni Bhardwaj, Shaly P Thomas, Kapil Sharma were also working with M/s Exchange Travel Services Pvt Ltd. He has deposed that during his posting his job was to prepare AGTI, AGTII, AGTIII, AGTIV as also to maintain day book/petty cash book in which expenditure of every day were entered by him.
34. He explained that AGTI form stands for agent and deals with the sales of ticket during a particular fortnight by the agent which is submitted to the airlines office by the agent on the th th nd rd 17 /18 of the same month for the first fortnight and 2 and 3 of CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.27 of 93
nd next month of the 2 fortnight. He deposed that this form also contained audit coupon of all the tickets sold during the month. In AGTII forms the total of all AGTI is summarized and provided to IAL office in which commission is deducted and this is to be submitted by the agent along with AGTI form.
35. He then deposed that in AGTIII form, the total of all the tickets refunded during a particular fortnight is submitted to IAL office along with the flight coupons cancelled and refunded th and this is to be submitted on 20 of every month for the first th th nd fortnight and on 4 /5 of the next month for the 2 fortnight and the differences of AGTII & AGTIII plus commission of the agent is submitted in AGTIV form to the IAL office which is submitted along with AGTIII form. He deposed that all AGTs of IAL were used to be prepared on computer in duplicate and office copy was CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.28 of 93kept in record.
36. He identified that AGTI, AGTII and AGTIII exhibited as Ex.PW3/H, Ex.PW3/Z11, Ex.PW3/Q, Ex.PW3/Z and Ex.PW3/Z12, Ex.PW1/8, Ex.PW3/Z57 and Ex.PW3/Z58 were prepared by him on computer. He deposed that AGTIV dated 07.03.2000, Ex.PW9/1 for the fortnight ended on 29.03.2000 was also prepared by him on computer. He testified that Ex.PW1/8 and Ex.PW3/Z12 were also prepared by him during his service with M/s Exchange Travel Services Pvt Ltd. It is pertinent to note that Ex.PW1/8 (D15/3) is the summary of AGTIII form on which acknowledgment was given by accused/Nand Kishore (A2) at point A (Q20) with date as 20.01.2000 in respect of which PW3/Saly P Thomas has stated that in fact it was acknowledged on 21.01.2000 although it was CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.29 of 93submitted to Nand Kishore with relevant AGTIII of first fortnight of January, 2000 and the cancelled tickets showing the net adjusted amount as Rs.10,45,505/ on 20.01.2000.
37. PW9/Virender Singh has deposed that for the first fortnight of January, 2000 total sale of tickets in domestic US $ was to the extent of Rs.12,61,897/ and refunds during the same period were to the extent of Rs.10,45,505/. He also deposed that in AGTIII for the first fortnight of January, 2000, all the 29 tickets were reflected. Thus, it is clear that there was highly disproportionate refund amount of tickets which was to the extent of Rs.10,45,505/ as against the total sale of tickets in domestic US $ for Rs.12,61,897/. This fact creates a circumstance against accused/Sharad Gupta (A1) as his intentions. I have noted that in his cross examination by ld. Counsel for Sharad Gupta, after CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.30 of 93asking whether the witness was having his appointment letter, he was suggested that he was not working with ETSPL, whereas during his examinationinchief PW.11 Kapil Sharma also deposed that Virender Kumar was working as Accountant with ETSPL, who had gone on leave, whose work was assigned to him. In his crossexamination he had stated that Virender Kumar used to look after the accounts of ETSPL. In answer to question no.49 in statement u/s 313 of Cr.PC, accused Sharad Gupta admits that Virender Singh was employee of ETSPL looking after the accounts work. This shows that accused Sharad Gupta has not been taking truthful defence during trial.
38. PW.3 Ms.Saly Thomas has deposed that in cancellation of air tickets the agency used to send the tickets alongwith AGTIII forms to Airline office for the purpose of refund.
CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.31 of 93She has deposed that flight coupon No.0582200107801 was cancelled by her on 14.01.2000 and the seal for cancellation was fixed by her and the ticket was cancelled by Mrs.Sushila in the office of airlines in computer. The ticket and its copy has been marked Ex. PW 3/ Z 28. Ex. PW3/Z 28 bears the stamp of cancellation with date as 14.01.2000.
39. She has also proved flight coupon numbers 0582200107799, 0582200107800, 0582200107798, 0582200107796, 0582200107797, 0582200107789, 0582200107787, 0582200107788, 0582200102463, 0582200102460, 0582200102461, 0582200107802, 0582200107803, 0582102641307, 0582102641038, 0582101325345, 0582200102462, 0582200102465, 0582200102466, 0582200102467, 0582200107806, CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.32 of 930582200107807, 08, 09, 10, 11, 12, 13 as cancelled by her and her colleagues marked the same as Ex.PW 3/Z 29 to Z56. These documents are not disputed by the accused persons.
40. She has then deposed that all these above mentioned cancelled tickets along with AGT III were submitted by her to Nand Kishore, an employee of airlines, who was in fact handling her agency i.e. Exchange Travels Services Private Limited in the office of Indian Airlines. She deposed that she had given these tickets to Nand Kishore without tearing their jackets as accused Sharad Gupta had instructed her to hand over the tickets to Nand Kishore without tearing their jackets. When she asked for signatures in lieu of acknowledging the receipt of the documents, accused/Nand Kishore told her that he will give the same on the next day and when she had asked accused Nand Kishore to tear CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.33 of 93the jackets of the tickets, he told her to leave the same and that he will himself do it later on.
41. It has been testified by PWSaly P Thomas that when she had visited Airlines office on next day, accused/Nand Kishore had given her signature acknowledging the receipt of ticket and he had also assured her that he had got torn the jackets of the tickets by some other agent. She has specifically deposed that AGTIII which was submitted by her to accused/Nand Kishore with cancelled tickets on 20.01.2000 was prepared by Virender Singh, Accountant of M/s Exchange Travel Services Pvt. Ltd. and she marked that AGTIII Form (in two pages) as Ex. PW3/Z 57 (D61) which document was one of those documents which had been recovered from office of accused/Sharad Gupta as proved by PW28/Om Prakash. She also proved that Ex.PW1/8 (D15) is CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.34 of 93summary of said AGTIII. She also proved AGT III form for the fortnight ending on 15.01.2000 as prepared by accused/Sharad Gupta as Ex.PW3/Z58 (actually shown on face of documents as Ex.PW3/Z59 which have been marked as Ex.PW26/F1 to F3 for better identification being D11, 12 & 13).
42. It is the same statement in respect of which PW13/K C Kaushik has deposed that since AGTIII for the fortnight ending on 15.01.2000 was not traceable in records of IAL against which Sharad Gupta had already taken the refund, IAL vide letter dated 18.09.2000, Ex.PW1/D2 asked him to submit duplicate of refund statement and in response to this letter, accused/Sharad Gupta had submitted duplicate handwritten copy of AGTIII duly signed and certified by him.
CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.35 of 93
43. Although PW3/Ms.Saly Thomas has been cross examined thoroughly by ld.counsel for accused persons but her testimony remained unscatched. accused Sharad Gupta has not disputed the fact that above said 29 tickets were submitted to Indian Airlines by Saly P Thomas on his behalf at his asking. He has also not challenged the testimony of witness to the extent that she had been instructed by him not to tear the jackets of the tickets and hand over the same to accused/Nand Kishore without tearing the jackets.
44. Ld.counsel for accused/Nand Kishore, during cross examination of this witness has put certain questions about the tearing of the jackets. PW3/Saly Thomas has deposed that tearing of jackets could not be done in the office of agent although endorsement of cancellation of tickets can be done by the agent.
CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.36 of 93She has deposed that she was not aware of anything about any written instructions for tearing the jackets only at Airlines office but it was a practice that jackets were torned only in the office of Indian Airlines and by their staff. She has admitted to a suggestion put up by ld.counsel for accused/Nand Kishore, "it is correct that when I went to the Indian Airlines office, Nand Kishore in the accounts branch in that office told me that he would give me the acknowledgment on the next day." Thus, it is admitted case of accused Nand Kishore that those 29 tickets with AGTIII forms of the first fortnight of January, 2000 were submitted to him by PW.3/Ms.Saly Thomas and he had told her that he would give acknowledgment on the next date.
45. PW.3/Saly P Thomas has stated that acknowledgment is given by the office by putting signature on AGTIII forms and its CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.37 of 93summary. She admitted the suggestion by ld.counsel for accused/Nand Kishore that acknowledgment on Ex.PW.1/8 (wrongly mentioned in cross examination as PW.1/A being D15/3), given by accused/Nand Kishore is dated 20.01.2000 (typed as 2001). She stated that "it is absolutely incorrect to say that jackets could be torned in the office of agent also" and volunteered that "this has never happened till date."
46. She admitted during her cross examination by Ld.counsel for Nand Kishore that she was told by accused Sharad Gupta to not to tear the jackets and hand over to Nand Kishore and volunteered that she gave a telephone call to Sharad Gupta from Indian Airlines office intimating him that Nand Kishore had told her to come on next day as he was not having time on that day, and it was in that reference Sharad Gupta had told her not to CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.38 of 93tear the jackets. In view of this statement of PW3, ld.counsel for accused/Nand Kishore has submitted that it was duty of the agent or its employee to tear the jackets of cancelled ticket.
47. In fact the statement of witness has to be read in its entirely. The whollistic reading of her statement shows that in any case the jackets of cancelled tickets were to be torn in presence of official of IAL to whom cancelled tickets are being submitted with AGTIII and it is not material whether the jackets are torn by agent or official of IAL, as the purpose of tearing of jackets was that the same cancelled tickets be not utilized by the agent for claiming refund again and again.
48. PW13/K C Kaushik has also deposed that "Nand Kishore was supposed to tear the jackets of the refunded tickets CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.39 of 93so that the same could not be reproduced/reutilized for refund. It appears that it was not done otherwise, the same tickets, which were earlier refunded in the month of January, 2000 could not have been produced for refund in subsequent months i.e. February and March." This statement of PW13 has not been challenged in his crossexamination.
49. PW11/Kapil Sharma has also deposed that when he had submitted AGTIII for the first fortnight of March, 2000 on the instructions of accused/Sharad Gupta to accused/Nand Kishore, he had torn the jackets and attached the flight coupons along with AGT forms on the instructions of accused/Nand Kishore.
50. In view of evidence, as discussed above, the court CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.40 of 93has reached to a definite conclusion that it was the duty of accused/Nand Kishore (A2) to ensure that the jackets of refunded tickets submitted to him on 20.01.2000 with AGTIII in question, were required to be torn by him or at least he had duty to ensure that the jackets are torn before accepting and acknowledging receipt of AGTIII.
51. PWSaly P Thomas denied a suggestion that she had not gone to Indian Airlines office on 21.01.2000. It is not disputed that AGTIII forms for first fortnight of January 2000 with the cancelled tickets were handed over by PW 3/Saly Thomas to accused Nand Kishore (A2).
52. PW3/Saly Thomas has clearly deposed that she was asked by accused Sharad Gupta to leave the tickets without CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.41 of 93tearing their jackets with accused Nand Kishore along with AGT III forms and accused Nand Kishore on the next day i.e on 21.1.2000 told her that he had got the jackets of those tickets torn through some other agent. There is no reason why she deposed falsely against Nand Kishore or accused Sharad Gupta and moreover no motive for telling lie has been suggested by accused Nand Kishore to PW3/Saly Thomas.
53. Thus, a clear case of conspiracy between Sharad Gupta and Nand Kishore to cheat IAL is made out as the same 29 tickets were subsequently utilized for refund for the second time in two lots of 15 tickets and 14 tickets each in the second fortnight of February 2000 and first fortnight of March 2000. Had the jackets of 29 cancelled tickets been torn by accused Nand Kishore or got torned by him, the same could not CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.42 of 93have been utilized for claiming refund for second time.
54. In view of approver Ajay Gupta (PW10) turning hostile there is no direct evidence to the fact as to when and where those 29 air tickets with their jackets intact, were handed over by accused/Nand Kishore to his coaccused and reaching of the same to the hands of Sharad Gupta for reutilization in subsequent fortnights. But facts proved on record coupled with testimony of PWSaly P Thomas explaining the facts and circumstances in which she had handed over the same to accused/Nand Kishore on 20.01.2000 and accused/Nand Kishore, telling her on next day that he got torn the jackets of those tickets, amply prove that accused/Nand Kishore had intentionally left their jackets intact and then had given the same to coaccused/Sharad Gupta for reutilization in order to claim the refund again.
CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.43 of 93Submission of AGT forms by M/s ESTPL in respect of cancelled tickets
55. PW1/Ramji Lal has deposed that he was posted as Dy.Manager (Finance) during the year 19992000 in Area Revenue Division (ARD) where accused/Nand Kishore was posted as Sr.Accounts Assistant. He was authorized for issuance of blank tickets called Cash Value Documents (CVD). He described the procedure for issuance of CVDs to agents on bank guarantee submitted by them. He proved requisition letters and delivery challans in respect of issuance of CVDs in question as Ex.PW1/1 to Ex.PW1/5. As regards cancellation of tickets, he deposed that the tickets, duly cancelled by agents with a stamp on the tickets showing that the tickets pertain to particular fortnight, are submitted to IAL and the total of such cancelled CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.44 of 93tickets is deducted from the total sales of the tickets during that fortnight and the balance is paid by the agent to IAL on the basis of daily sale. A document called AGTI is prepared ticket wise and the total of daily sale is reported in AGTII, then AGTIII reflects the cancelled tickets. AGTIV reflects total sale as shown in AGT II and total cancellation as shown in AGTIII and the net amount th th due to IAL which is paid on due dates i.e. 7 & 9 day of the nd th month for the second fortnight of previous month and 22 & 24 day for the first fortnight of the current months.
56. He has proved issuance of CVDs to M/s Exchange Travel Services Pvt Ltd bearing ticket nos.2642576 to 2642675 and 107786 to 107835 vide requisition letter and delivery challan dated 05.01.2000, Ex.PW1/1 and Ex.PW1/2, ticket nos.2640976 to 2641050 vide requisition and delivery challan dated 05.01.2000, CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.45 of 93Ex.PW1/3 and Ex.PW1/4, ticket nos.1325301 to 1325350 and 102451 to 102475, ticket nos.6646266 to 6646315 vide delivery challan, Ex.PW1/5. He also proved summary of AGTIII for the fortnight of 01.03.2000 to 15.03.2000 issued by M/s Exchange Travel Services Pvt Ltd and received by accused no.2/Nand Kishore at IAL on 21.03.2000 as Ex.PW1/6, summary for the fortnight of 16.02.2000 to 29.02.2000 received by Nand Kishore on 06.03.2000 as Ex.PW1/7 and summary for the fortnight of 01.01.2000 to 15.01.2000 received by Nand Kishore as Ex.PW1/8. He deposed that the details of summary are given in AGTIII.
57. He proved the details of summary for the fortnight 16.02.2000 to 29.02.2000 in AGTIII as Ex.PW1/9 and Ex.PW1/10 being part of summary, Ex.PW1/7 and details of CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.46 of 93summary for the fortnight of 01.03.2000 to 15.03.2000 in AGTIII as Ex.PW1/11 and Ex.PW1/12 being part of the summary, Ex.PW1/6.
58. When we see these facts deposed by PW1 along with his crossexamination and answer to questions put to both the accused under Section 313 Cr.PC we find that these facts as proved by PW1, have not been disputed by any of the accused persons.
59. PW14/S Purshottam, who has worked with IAL as Sr.Accounts Assistant along with accused/Nand Kishore (A2) has proved that agent M/s Exchange Travel Services Pvt Ltd had submitted AGTII, AGTIII and AGTIV pertaining to domestic dollar payment whereby AGTII reflected an amount of Rs.
CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.47 of 9312,61,897/ towards sales which was verified by accused/Nand Kishore (A2) on 18.01.2000 on Ex.PW3/Z12 at point A. He deposed that along with AGTII, summary of AGTIII (Ex.PW1/8) pertaining to refund amount of Rs.10,45,505/ was also verified by accused/Nand Kishore under his signatures at point A dated 20.01.2000. He has proved all the relevant AGT statements and credit notes.
60. PW11/Kapil Sharma has deposed that he joined services of M/s Exchange Travel Services Pvt Ltd in the year 1999 and worked there till July, 2000 as Customer Support Executive at domestic counter and his duties were to issue tickets and after cancellation of tickets, if any, he used to prepare credit notes and bills. He deposed that in absence of Accounts Assistant/Virender Kumar, he used to look after the work assigned to him on the CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.48 of 93instructions of accused/Sharad Gupta and in the month of March, 2000 when Mr.Virender Kumar had gone on leave, he was asked by accused/Sharad Gupta (A1) to look after the work of Sh.Virender Kumar.
61. He has testified that although he was not aware with the work of AGTs but he was asked by accused/Sharad Gupta (A1) to prepare AGT forms on computer and on one day when Mr.Virender Kumar was on leave, accused/Sharad Gupta (A1) had taken out the bunch of tickets/coupons and asked him to prepare AGT forms for the same. He has deposed that when he was preparing AGT forms, he noticed that some of the tickets had already been issued (sic. used) and credit notes in respect of those tickets had already been prepared earlier. He said that when he asked accused/Sharad Gupta that some of the tickets CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.49 of 93have already been shown as refunded, then why he was again asking for preparing AGT forms. On this accused/Sharad Gupta told him to do whatever he was saying and not to enquire much about the same.
62. He deposed that thereafter he prepared AGT forms for the first fortnightly of March, 2000 which is already Ex.PW1/11 and after preparing these AGT forms, he had handed over the same to accused/Sharad Gupta which was checked by him and thereafter accused/Sharad Gupta had asked him to submit the same in the office of IAL and hence he had submitted the same to accused/Nand Kishore (A2), who was then posted as Sr.Accounts Assistant in ARD Section, Safdarjung Airport, New Delhi.
CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.50 of 93
63. He specifically deposed that when tickets were handed over to him, jackets of the tickets were intact and when he had submitted these tickets to accused/Nand Kishore, he (Kapil Sharma) had torn the jackets and attached flight coupons along with AGT forms on the instructions of accused/Nand Kishore. It was not suggested to him by the accused that he had not prepared or submitted AGT, Ex.PW1/11 or that it was not received by accused/Nand Kishore (A2) at IAL office. From his statement it is clear that accused/Sharad Gupta was aware about refund adjustment of tickets having already been taken earlier, when he got AGTIII submitted to IAL in March, 2000. Work of ETSPL allocated to accused/Nand Kishore
64. Sh.Ajay Kumar Gupta (PW10), who was approver in CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.51 of 93this case, turned hostile, but so far as it is safe to rely upon his testimony, it can be read. He has deposed that in the year 19992000, he was posted as Superintendent in IAL in Agency Section and accused/Nand Kishore (A2) was working with him in the same section. He stated that AGTI, AGTII and AGTIII statements were prepared by the agents and thereafter they were submitted to IAL in Agency Section which comes under ARD. He also deposed in the year 19992000 with a view to fix accountability the work of agents were allotted alphabetically to the Accounts Assistants posted in IAL. In this respect PW.13 K.C.Kaushik has also deposed that since humpty number of agents were working with ARD, for convenience of administration and to fix accountability they were divided alphabetically to respective staff of IAL and Nand Kishore was assigned the agents from C to F and hence Exchange Travel Services Pvt. Ltd. was CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.52 of 93also assigned to him. He also proved an office order of IAL dated 13.09.1999 providing for the same as Ex.PW.13/2(D.17). AGTIII statement purposely not sent to Pacific Computers for processing to screen double refund
65. It is alleged that in order to conceal the illegal act, copies of AGTIII statements for the first fortnight of January, 2000 were purposely destroyed by accused/Nand Kishore and it was not sent to M/s Pacific Computers for processing with a view to avoid detection at the time of processing.
66. PW10/Ajay Gupta deposed that AGTs were prepared fortnightly and all the AGT statements during the relevant period, used to be sent to M/s Pacific Computers, Rajouri Garden on CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.53 of 93monthly basis along with check list and in case of any discrepancy, he used to visit M/s Pacific Computers to assist them to remove the discrepancy.
67. PW15/Tilak Raj, who worked as Manager (Finance) in ARD Section of IAL has deposed that AGTI, AGTII and AGTIII were used to be sent to M/s Pacific Services Agency, Rajouri Garden for screening as per the check list and this check list was prepared by Daftri of IAL in Agency Section. He was shown the check list of AGTIII of January, 2000 and on the basis of said check list he stated that the AGTIII (US $ and INR) in respect of M/s Exchange Travel Services Pvt Ltd for the domestic sectors pertaining to fortnight ending on 15.01.2000 were not sent to M/s Pacific Computers.
CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.54 of 93
68. PW19/Ved Parkash, who worked as Dy.Manager (Finance), ARD at Safdarjung Airport has deposed that during the year 1999 Mr.Purshottam was posted as Accounts Assistant and agents were required to report to him for rechecking all the AGTs, who after checking the documents would sent agents with his documents to the cashier for depositing amount and issuance of receipt. After issuance of receipt by the cashier, next day all documents used to come to his dispatch section for onward dispatch to computer section named as M/s Pacific Computers.
69. He deposed that before sending the documents they used to prepare one check list, agent wise, mentioning therein the documents which were received from the concerned agent. The reports were sent fortnightly since payments were also being made fortnightly. The documents were sent to the M/s Pacific CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.55 of 93Computers for checking and screening all the documents and if any discrepancy was found, for example if any short payment was made, the debit notes were used to be issued by M/s Pacific Computers against the concerned agent.
70. He was shown the file of M/s ETSPL with agency code no.3880125 maintained by IAL in routine course as Ex.PW19/A and he was also shown AGTIII statement of January, 2000 as Ex.PW21/C (D16) and has deposed that as per the statement, AGTIII pertaining to M/s ETSPL for the first fortnight of January, 2000 was not sent to M/s Pacific Computers as mentioned at point X. He specifically deposed that he used to tick mark against the name of the agent whose documents were sent. He deposed that the agents whose documents were not sent, the same were not tick marked. During his crossexamination, a suggestion was CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.56 of 93made by ld.counsel for accused/Sharad Gupta, thereupon, he admitted, "it is correct that after receiving AGT statement, Indian Airlines Office used to send the statements to Pacific Computers and at this stage there was no role of the agent." During cross examination by ld.counsel for accused/Nand Kishore, the witness has deposed that Ex.PW21/C was not prepared in his presence and that this document was prepared on the basis of documents received from the agent.
71. PW21/Jagdamba Prasad has deposed that he worked as peon with M/s Pacific Computers since 1984 and his duties included carrying documents to other offices and bringing back the documents and correspondence to his office and he was used to be sent to the offices and organizations whose data processing work was done by M/s Pacific Computers, including CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.57 of 93IAL. He deposed that he used to get AGTI and AGTIII forms of IAL agents along with list of ARD, Section of IAL. He was shown the list in respect of AGTIII for January, 2000 already Ex.PW21/C (D16) and he identified his signatures thereon at point A and deposed that as per entry at sl.no.274, no AGTIII statement in respect of M/s ETSPL were received from IAL for the first fortnight of January, 2000 as the relevant columns are blank.
72. PW22/D K Chopra is the proprietor of M/s Pacific Computer Services. He deposed that Ex.PW21/A, B & C were collected from ARD of IAL by his employee Jagdamba Prasad whose signatures were identified by him on these documents. He deposed that the data in respect of various travel agents in the form of AGTs was fed in the office computer and processed for preparing debit notes in respect of each travel agent of IAL and CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.58 of 93after preparing the data, the print out of check list was taken out and cross checked with original entries of AGT statements and if any discrepancy was found, it was corrected and if it could not be corrected, it was sorted with the help of IAL staff. He also deposed that S/Sh.Ajay Gupta (PW10) and Sanjay (PW23) used to come from IAL office, Safdarjung Airport to sort out the discrepancies. He testified that the final debit notes used to be supplied to IAL with AGT statements through PW19/Ved Parkash and AGTIII statement for the first fortnight of January, 2000 was not sent to his office.
73. It is note worthy that he was not crossexamined by ld.counsel for accused/Nand Kishore and has deposed during crossexamination by ld.counsel for accused/Sharad Gupta that he never met owner of M/s ETSPL and there was no question of CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.59 of 93theft of any document from his office.
74. PW23/Sanjay Sharma has deposed that he has worked in ARD Section of IAL, Sardarjung Airport as Dy.Manager (Finance) and officiating as Manager (Finance) in ARD Section on superannuation of Sh.K C Kaushik in March, 2001. He testified that accused/Nand Kishore was posted as Accounts Assistant in ARD Section of IAL in the year 2000 and was allocated the work of agent ETSPL whose MD was Sharad Gupta whom he identified.
75. He stated that subsequent to the receipt of the reports from the agents, these were kept in the ARD for 34 days and then forwarded to computer agency named as M/s Pacific Computers for screening of documents and the purpose of CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.60 of 93screening of the documents was to establish that sales effected by agents are correct as per the standing instructions, namely, correct fare, codings, documents required for any discount claims, totaling, etc and in the event of any discrepancy observed, the debit notes were raised on the agent concerned. He deposed that the screening reports are received from M/s Pacific Computers agentwise, periodically, and after the processing is complete the documents are received back from the said agency and are stored in the record room. He deposed that for the purpose of screening of all the four reports (AGTI to AGTIV) along with tickets on which refund was claimed and the office coupon of the sold tickets, used to be sent to M/s Pacific Computers.
76. He specifically deposed that it was the duty of CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.61 of 93accused/Nand Kishore dealing with M/s ETSPL, to send AGTIII and refunded tickets bearing mark of cancellation i.e "refunded" within 23 days to the officer concerned who at that time was Mr.Tilak Raj. He deposed that dealing staff at ARD was accused/Nand Kishore. He also proved the memo, vide which he had handed over the documents to CBI as Ex.PW23/A. During crossexamination by ld.counsel for accused/Nand Kishore, he deposed that from record room list of all the agents goes to Sh.Tilak Raj, who signs and sends the same along with documents to M/s Pacific Computers for screening.
77. In this way, the prosecution has successfully established that AGTIII of first fortnight of January, 2000 were not sent to M/s Pacific Computers for the purpose of screening. It can be understood that had it not been destroyed and rather sent CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.62 of 93to the godown for dispatch to M/s Pacific Computers, it must have been mentioned in the check list, Ex.PW21/C. None, other than Nand Kishore, could be interested for concealing AGTIII of ETSPL for the first fortnight of February, 2000, as only he might have been interested to do so in order to hide his misdeed of passing the already adjusted cancelled air tickets to accused Sharad Gupta for reutilization for refund second time and thus to help him to cheat IAL. This was obviously done by accused/Nand Kishore (A2) so as to conceal the occurrence of fraud, as otherwise, if the AGTIII of first fortnight of January, 2000 along with cancelled tickets had been sent to M/s Pacific Computers, the fraud of double refund could not have taken place.
78. It is not necessary that there should be some evidence to show that accused/Sharad Gupta was aware that CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.63 of 93accused/Nand Kishore had managed the affairs in such a manner that the double refund taken by him for same cancelled tickets, will not be unearthed as accused/Nand Kishore had destroyed or taken away the AGTIII of M/s ETSPL for the first fortnight of January, 2000 so that it does not reach to M/s Pacific Computers for reconciliation after feeding the informations in its computer. The evidence available against accused/Nand Kishore, which speaks volumes about his conduct in pursuance to common intention of both the accused persons, as discussed above, is relevant under section 10 of Evidence Act for deducing that it was done pursuant to understanding reached between them. Defense of Accused
79. Although the prosecution has established that the said CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.64 of 9329 air tickets in respect of which the refund of Rs.10,45,505/ was got adjusted by accused/Sharad Gupta through AGTIII for the first fortnight of January, 2000 were again used for claiming adjustment of refund second time by using same air tickets along with AGTIII for second fortnight of February and first fortnight of March, 2000, but this fact is not otherwise disputed by accused.
80. Rather, the plea of accused/Sharad Gupta is that it was a mistake on the part of his employees and that he himself had informed IAL about double refund given to his account and hence the entire amount of Rs.10,45,505/ has been refunded to IAL and so there is no monetary loss to IAL.
81. The defence of accused/Nand Kishore is that the double adjustment of refund was due to fault of employees of CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.65 of 93agent (ETSPL) in not tearing the jackets of cancelled air tickets in question and at the best his act could be termed as negligent act but not deliberate act. As regards reaching of those already cancelled and refund adjusted air tickets to the hands of agent for reutilizing the same and claiming refund for the second time, it has been pleaded by him that the concerned AGTIII of first fortnight of January, 2000 along with tickets would have been stolen by accused/Sharad Gupta or his employee.
82. Accused Sharad Gupta (A1) has taken a defence that in fact he had himself informed to IAL about the excess amount credited to the account of M/s Exchange Travel Services Pvt Ltd. His ld.counsel has strenuously argued to make the court believe and accept this hypothesis as valid defense. The ld.Public Prosecutor, on the other hand, has submitted that CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.66 of 93this is in fact an afterthought of accused/Sharad Gupta to shield himself. It has been rightly pointed out by Ld. Public Prosecutor that the defence taken by accused Sharad Gupta stands nullified with his own cross examination conducted in respect of PW.18 Sh.Kishan Lal, employee of ETSPL. In his cross examination accused Sharad Gupta has specifically asked from this witness and in reply the witness has stated that the letter Ex.PW.13/1 was written by him and signed by accused Sharad Gupta and on the strength of Ex.PW.13/1 the company had informed the Airlines that a sum of Rs.10,45,505/ was due from the company to IAL. It is worthwhile to note that Ex.PW.13/1 is the letter dated 25.09.2000 (D.6). Thus as per the suggestion of accused Sharad Gupta, it was vide his letter dated 25.09.2000, the IAL was informed by his company that a sum of Rs.10,45,505/ was due. As such his stand that before IAL officers could have prevail CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.67 of 93upon him for refund of Rs.10,45,505/, he had himself told IAL about the excess payment, stands nullified.
83. PW17/J K Tanwar, who worked as Sr.Manager (Vigilance) with IAL and on whose complaint, the instant case was registered by CBI, has deposed that on receiving information about cheating IAL by availing double refund of some tickets sold by M/s Exchange Travel Services Pvt Ltd., in August, 2000 (mistakenly typed as 1999), his DGM advised him to enquire into the matter and submit report and accordingly he along with his staff Mr.J Chandrashan had enquired into the matter and obtained certain documents from Area Revenue Division of IAL and visited premises of M/s Exchange Travel Services Pvt Ltd., at Katwaria Sarai, New Delhi where he met Sharad Gupta, MD of said company and asked for some documents pertaining to refunds of CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.68 of 93some tickets from IAL but no document was provided by him stating that documents were not available in original which are stored in his computer, which was out of order on that day.
84. During his crossexamination, ld.counsel for accused Sharad Gupta did not controvert this fact about visit of Mr.Tanwar and meeting accused/Sharad Gupta. Had it been Sharad Gupta, who had told the fact of double refund of tickets to IAL, he could have so suggested to this witness or any officer of IAL, in crossexamination. Sh.J K Tanwar has also proved his letter dated 31.08.2000 as Ex.PW17/B, vide which he collected documents from Mr.K C Kaushik, Manager (Finance), ARD.
85. The plea of accused/Sharad Gupta is that he had come to know about excess amount on finalization of his balance CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.69 of 93sheet on 01.09.2000 and had then information IAL about it and then only the officers of IAL had come into action. This argument has no force in view of availability of the clinching evidence to the effect that the enquiry into this matter of double refund had already started prior to finalization and audit of his accounts on 01.09.2000 and further more he did not suggest his defence to either PW17/J K Tanwar or to PW13/Mr.K C Kaushik that it was him who had first informed IAL about double refund and not that IAL officers had prevailed upon him to refund the excess amount as deposed by them.
86. It has been then submitted by ld.defence counsel for accused/Sharad Gupta that the accused had repaid the entire amount of Rs.10,45,505/ in respect of which double adjustment was given to him and all the PDCs except the last one was paid CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.70 of 93by the time the FIR was registered by CBI in this case. He has thus submitted that no criminal action could have been initiated after the amount was refunded to IAL by accused/Sharad Gupta. On the other hand, ld.Public Prosecutor has submitted that refund of cheated amount can not extend immunity to accused and rather it gives rise to admission of guilt on his part.
87. In Ram Narain Poply Vs. CBI (Harshad Mehta Case), AIR 2003 SC 2748/2003 Cri.L.J. 4801, Apex Court observed: "Much has also been submitted that repayment has been made. That itself is not an indication of lack of dishonest intention. Sometimes, it so happens that with a view to create confidence the repayments are made so that for the future transactions the money can be dishonestly misappropriated. This is a part of the scheme and the factum of repayment can not be considered in isolation. The repyament, as has been CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.71 of 93
rightly contended by the Solicitor General, can be a factor to be considered while awarding sentence, but can not be a ground for proving an innocence of the accused." (Para 358).
88. Thus, it is well settled position of law that the factum of repayment of cheated amount can not be a ground for claiming immunity from criminal prosecution and conviction.
89. It has also been submitted by ld.counsel for the accused persons that FIR of this case was got registered with SIU branch of CBI, only because Sh.A P Singh, who was incharge of this branch happened to on deputation to IAL as Chief Vigilance Officer. He also submitted that IO of this case Dr.Sushil Gupta is himself a tainted officer facing trial in a corruption case. There is no evidence on record to show that any of these facts could have contributed to false implication of accused in this case. Hence, I CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.72 of 93find no force in these submissions as none of these factors could have any bearing on fair investigation of the matter.
90. It has been urged by the ld.counsels for accused/Nand Kishore (A2) that there is a strong possibility that someone might had stolen the AGTIII for the first fortnight of January, 2000 along with refunded tickets in question and the same tickets have been used again for claiming refund for the second time by M/s Exchange Travel Services Pvt Ltd. For this they have relied upon testimony of PW13/K C Kaushik, who has admitted during his crossexamination that the possibility of an outsider having access to the refunded tickets can not be ruled out as there was a heavy rush with each officer.
91. Mere a possibility that an outsider could have access CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.73 of 93of refunded tickets can not lead to a presumption that possibly the cancelled tickets, already refunded, might have been stolen by Sharad Gupta or his employees and then reused for claiming refund on the basis of same tickets. Such an interference would be far fetched.
92. In his crossexamination, PW17/J K Tanwar, who had conducted departmental vigilance enquiry into the matter, has admitted that in the complaint (Ex.PW17/A) filed by him with CBI, the case of department was that the cancelled tickets were stolen by agent and its employees and that till filing of complaint no material had surfaced against Nand Kishore. In view of this deposition, it has been submitted by ld.counsel for accused Nand Kishore that the only change in circumstances, after registration of FIR, was that the statement of Sh.Ajay Kumar Gupta (PW10), CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.74 of 93was recorded by CBI who was made approver but he has not supported the case of prosecution in his statement made before the court and thus there is no evidence to show any involvement of accused/Nand Kishore, in alleged conspiracy and cheating.
93. The possibility of stealing the cancelled 29 tickets from office of IAL after their submission with AGTIII of first fortnight of January, 2000, is ruled out for the reason that it is not expected that accused/Sharad Gupta could be so sure of his success in stealing the tickets from IAL that he planned in advance for getting issued huge number of dummy tickets in imaginary names, so that he may be able to get the adjustment of the same twice. Secondly, not only the said cancelled tickets had reached to his hands but their jackets were also intact at the time when they were reutilized for taking their refund adjustment for second time, CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.75 of 93which was not possible unless accused/Nand Kishore had left their jackets intact while accepting AGTIII for first fortnight of January, 2000. Thirdly, not only the tickets had reached to the hands of accused/Sharad Gupta but even AGTIII for first fortnight of January, 2000 was deliberately destroyed so that it does not reach M/s Pacific Computers for the purpose of reconciliation, which if so sent, could have revealed the fraudulent adjustment when resubmitted with AGTIII of subsequent months. Lastly, the conduct of accused/Nand Kishore, as explained by PW3/Saly P Thomas, discussed earlier, specially in telling her that the jackets of those tickets were got torn by him from some other agent, speaks volumes about his intent and involvement.
94. In fact perusal of whole matrix of the case shows that till the employees of accused Sharad Gupta could be examined CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.76 of 93by anyone, the factual position of occurrence could not be known. The Vigilance Department of IAL could have no opportunity to examine employees of M/s Exchange Travel Services Pvt Ltd., hence at the time of making complaint, which is the basis of instant FIR, they had no clue about the role of Nand Kishore in conspiracy to cheat IAL by facilitating accused Sharad Gupta to claim refund of cancelled tickets twice, as is clear from statement of PWSaly P Thomas, PW11/Kapil Sharma and other witnesses.
95. Throughout, both the accused have kept on denying that they have ever met each other. But recovery of visiting card of accused/Nand Kishore, bearing his office and residential address printed thereon, from house of accused/Sharad Gupta, which is Ex.PW28/C6 (D52) vide search list, Ex.PW28/B, has not been disputed by any of the CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.77 of 93accused. It was not suggested to PW28/Om Parkash, who was witness to search and recovery that no such visiting card was ever recovered from house of accused/Sharad Gupta or that accused/Nand Kishore has never used any such kind of visiting card. Recovery of visiting card of accused/Nand Kishore from the house of accused/Sharad Gupta shows a connection between them and exposes falsity of their claim that they did not know each other.
96. However, since there is no recovery pursuant to disclosure statements of accused/Sharad Gupta and Nand Kishore, none of the portions of their disclosure statements, pointing out memos or site plans about passing of 29 tickets with AGTIII of first fortnight of January, 2000 and payment of bribe, can be read in evidence by virtue of Section 25/27 of Evidence CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.78 of 93Act.
97. It has been submitted by ld.defence counsel for accused no.1/Sharad Gupta that it was usual practice that if by mistake some excess amount is paid or credited by IAL to the account of agent, the debit note was used to be issued by the agent for the excess amount credited to his account by mistake. He has drawn attention of the court to statement of PW3/Saly Thomas who has stated in her crossexamination, "if by mistake a lesser amount than the actual fare is mentioned in the ticket issued by the travel agent, the agent is required to make the full actual fare and loss occurred due to this mistake is to be borne by the agent and a debit note was used to be issued in this respect by the IAL to the Travel Agent. In case commission was to be given to the tune of 5% and the staff of the agent has given 8% CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.79 of 93commission, in that case a debit note was to be issued to the agent for this accounting mistake. The debit note used to come from the airlines after about four months. Earlier, it used to come after about a year."
98. On the strength of this testimony, it has been submitted by ld.defence counsel that if at all the credit for an amount of Rs.10.45 lacs was given to M/s Exchange Travel Pvt Ltd., twice, it could well be debited back by IAL by issuing a debit note. He urged that even otherwise, in an extreme case, the 'agency agreement' between IAL and M/s Exchange Travel had provided for referring dispute, if any, to arbitration which could be resorted to by IAL and/or the bank guarantee provided as security to the IAL could be invoked by IAL. Such an argument could be tenable only if the credit of Rs.10.45 lacs would have been due to CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.80 of 93some mistake or misunderstanding on the part of agency or IAL but not by committing a deliberate and intentional act of cheating which makes them criminally liable for their acts of commission and omissions, as is the case here.
99. It has been submitted by ld.counsels for accused Nand Kishore that alleged motive or reward for abuse of the official position in the present case has not been proved at all in view of approver Ajay Gupta (PW10), not supporting the case of prosecution about receiving of Rs.2.5 lacs by accused/Nand Kishore from his coaccused/Sharad Gupta. In this respect it suffice to observe that for holding a public servant guilty of 'criminal misconduct' u/s 13(1)(d), it is not necessary that the public servant should obtain valuable thing or pecuniary advantage for himself. It can be obtained for 'any other person' CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.81 of 93as is clear from provisions of Section 13(1)(d). In a recent judgment of Runu Ghosh & Ors Vs. CBI, (Crl.A.482/02) (decided on 29.11.2011), the Division Bench of Hon'ble High Court of Delhi has interpreted the provisions of Section 13(1)(d)
(iii) of PC Act to hold that even the mens rea to obtain pecuniary advantage or valuable thing to another is not a necessary ingredient of offence u/s 13(1)(d)(iii) of PC Act when the 'acts' resulting in someone obtaining pecuniary advantage or valuable, thing are, 'without public interest.'(Para 77). However, in present case the dishonest intention on the part of both the accused is very much clear from the facts and circumstances proved by the prosecution, beyond reasonable doubt, as discussed.
100. It was observed by Hon'ble Supreme Court in Ram CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.82 of 93Narayan Popli Vs. CBI AIR 2003 SC 2748 that the offence of cheating is made of two ingredients deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property. To put it differently, the ingredients of the offence are that the person deceived delivers to some one a valuable security or property, that the person so deceived was induced to do so, that such person acted on such inducement in consequence of his having been deceived by the accused and that the accused acted fraudulently or dishonestly when so inducing the person. To constitute the offence of cheating , it is not necessary that the deception should be by express words, but it may be by conduct or implied in the nature of the transaction itself. In this case IAL had been induced by both the accused for CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.83 of 93giving adjustment of Rs.10,45,505/ to ETSPL for the second time and therefore, the offence of cheating as punishable u/s 420 IPC is made out against both the accused persons. Criminal Conspiracy
101. It has been observed by Hon'ble Supreme Court in State Vs. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 (Parliament attack case) that mostly, the conspiracies are proved by the circumstantial evidence as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its object have to be inferred from the circumstances and the conduct of accused {Per Wadhwa j. in State Vs. Nalini, 1999 (2) RCR (Crl.) 682 (SC)}.
CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.84 of 93
102. The position of law in this respect has been summed up by the Hon'ble Supreme Court in a recent judgment cited as Baliya @ Bal Kishan Vs. State of MP, 2012 XI AD (SC), as under:
12.The offence of "criminal conspiracy" is defined in Section 120A of the Indian Penal Code whereas Section 120B of the Code provides for punishment for the said offence. The foundation of the offence of criminal conspiracy is an agreement between two or more persons to cooperate for the accomplishment/performance of an illegal act or an act which is not illegal by itself, through illegal means. Such agreement or meeting of minds create the offence of criminal conspiracy and regardless of proof or otherwise of the main offence to commit which the conspiracy may have been hatched, once the unlawful combination of minds is complete, the offence of criminal conspiracy stands committed.
13.More often than not direct evidence of the offence of criminal conspiracy will not be forthcoming and proof of such an offence has to CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.85 of 93
be determined by a process of inference from the established circumstances of a given case. The essential ingredients of the said offence; the permissible manner of proof of commission thereof and the approach of the courts in this regard has been exhaustively considered by this Court in several pronouncements of which, illustratively, reference may be made to E K Chandrasenan Vs. State of Kerala 1995 (2) SCC 90, Kehar Singh & Ors. Vs. State (Delhi Administration) 1988 (3) SCC 609, Ajay Aggarwal Vs. Union of India 1993 (3) SCC 609 and Yash Pal Mittal Vs. State of Punjab 1977 (4) SCC 540.
14.The propositions of law which emanate from the above cases are, in no way, fundamentally different from what has been stated by us herein above. The offence of criminal conspiracy has its foundation in an agreement to commit an offence or to achieve a lawful object through unlawful means. Such a conspiracy would rarely be hatched in the open and, therefore, direct evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the court in drawing such an inference must consider whether the basic facts CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.86 of 93
i.e circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and, thereafter, whether from such proved and established circumstances no other conclusion except that the accused had agreed to commit an offence can be drawn.
Naturally in evaluating the proved circumstances for the purposes of drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused.
103. Thus, the proposition of law is that a criminal conspiracy has its foundation in an agreement to commit an offence and such a conspiracy is rarely hatched in the open, hence direct evidence to prove the same may rarely be forthcoming and as such court will have to infer it from the circumstances proved beyond all reasonable doubts.
104. In this case we have seen that the prosecution has CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.87 of 93successfully proved the facts and circumstances, beyond a reasonable doubt, to infer that the accused had committed the offence of criminal conspiracy u/s 120B IPC r/w Section 420 and 201 IPC and Section 13(1)(d) of PC Act as per the deposition of PW3/Saly Thomas explaining how on 20.01.2000, she left with accused/Nand Kishore, 29 tickets without tearing their jackets on the instructions of accused/Sharad Gupta with AGTIII without acknowledgment and accused/Nand Kishore stating to her on next day that he got torn the jackets of those tickets through another agent; deposition of PW11/Kapil Sharma that despite his telling accused/Sharad Gupta that the refund of those tickets were already taken, he asked him to prepare AGT_III for first fortnight of March, 2000 and, therefore, he had prepared AGTIII and submitted the same to accused/Nand Kishore along with tickets after tearing their jackets; recovery of visiting card of CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.88 of 93accused/Nand Kishore from house of accused/Sharad Gupta showing their acquaintance with each other; statements of PW10, 15, 19, 21, 22 and 23 about not sending AGTIII to M/s Pacific Computers for reconciliation which could expose the excess payment, and deposition of other witnesses. Sanction
105. Sanction for prosecution of accused/Nand Kishore (A2) u/s 19(1)(c) of PC Act was obtained from the competent authority, who has been examined as PW25. PW25/Manet Paes has proved the sanction order as Ex.PW25/A. The order on face of it reflects the application of mind by the sanctioning authority. During the course of final arguments also the issue of legality of sanction has not been agitated by the ld.defence CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.89 of 93counsels. I thus hold that the grant of sanction for prosecution of accused/Nand Kishore u/s 19 of PC Act has been proved beyond reasonable doubt.
Conclusion
106. It is settled position of law that a conviction can be reasonably founded of circumstantial evidence if it is wholly inconsistent with the innocence of accused and consistent only with his guilt otherwise he is entitled to the benefit of doubt. I have kept in mind the fundamental principles laid down by Hon'ble Apex Court while holding accused guilty on the basis of circumstantial evidence. In this case the inference of guilt of accused persons has been drawn from the facts which have been proved by the prosecution beyond reasonable doubt and thus there is no scope for affording the accused benefit of doubt in the CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.90 of 93present case.
107. Thus, in view of facts & circumstances proved by the prosecution, as discussed above, I have reached to a definite conclusion that the prosecution has proved, beyond reasonable doubt, that both the accused persons have committed the offence of 'criminal conspiracy' pursuant to an agreement whereby accused/Nand Kishore, while working as a public servant by abusing his position, obtained pecuniary advantage for accused/Sharad Gupta/his company M/s Exchange Travel Services Private Ltd by cheating Indian Airlines to the extent of Rs.10,45,505/, by dishonestly inducing it to give adjustment of 2nd refund in February/March, 2000 of the same 29 air tickets of which the refund was already got adjusted in January, 2000 and accused/Nand Kishore caused disappearance of AGTIII CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.91 of 93statements of M/s Exchange Travel Services Private Ltd for the first fortnight of January, 2000 for screening himself and accused/Sharad Gupta from legal punishment, punishable under section 120B IPC r/w sections 420 and 201 thererof and 13(2) r/w Section 13(1)(d) of PC Act, 1988. The prosecution has also established that both the accused have cheated Indian Airlines by dishonestly inducing it to grant refund adjustment of Rs. 10,45,505/ in respect of 29 air tickets knowing fully well that earlier refund in respect of the same tickets was already obtained and thereby committed an offence punishable u/s 420 IPC. Additionally, the prosecution has also established that with his acts of commissions and omissions, accused/Nand Kishore, while working as 'public servant' committed offence of criminal misconduct, by corrupt and illegal means and thereby obtained pecuniary advantage to the tune of Rs.10,45,505/ to his co CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.92 of 93accused/Sharad Gupta, owner of M/s Exchange Travel Services Private Ltd. punishable u/s 13(2) r/w 13 (1)(d) of PC Act, besides an offence u/s 201 IPC which is also made out against accused Nand Kishore.
108. I, therefore, hold both the accused persons guilty of the offences punishable as under:
(i)Accused Sharad Gupta - for offence punishable u/s 420 IPC
ii)Accused Nand Kishore - for offence punishable u/s 420, 201 IPC and Section 13(2) r/w Section 13(1)(d) of PC Act, 1988
(iii)Both accused i.e Sharad Gupta and Nand Kishore - for offence punishable under section 120B IPC r/w Sections 420 & 201 thereof and Section 13(2) r/w Section 13(1)(d) of PC Act, 1988 And convict both of them accordingly.
Announced in the open (R P PANDEY)
Court on 15.12.2012 SPL.JUDGE01 (PC ACT)
ROHINI COURT:DELHI
CBI No.04/09 CBI Vs. Sharad Gupta & Anr.
Page No.93 of 93