Delhi District Court
Cbi vs . G.C.Gupta & Ors. on 16 October, 2014
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
: IN THE COURT OF :
: SH.KANWAL JEET ARORA :
SPECIAL JUDGE, CBI (P.C.ACT), DWARKA COURTS,
NEW DELHI.
In the matter of :
CBI VS. G.C.GUPTA & ORS.
C.C.NO.: 33/2011
FIR NO. : RC7 (E)/2001EOWI/DLI
dated 29.06.2001
Under section : 120B r/w 420, 467,
468 & 471 IPC and 13 (2) read with
13 (1) (d) of the PC Act, 1988
In the matter of:
CENTRAL BUREAU OF
INVESTIGATIONS (C.B.I)
V e r s u s
(i) Girish Chandra Gupta,
S/o. Shri. Mahesh Chandra,
R/o: W86/C33, Saiduljaib Extn.II,
New Delhi
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Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(ii) Santosh Kumar Chandel,
S/o. Late Shri. Sukh Ram,
R/o: Gali No. 2, Surakhpir Road,
SAS Nagar, Backside Diggles (Water Tank),
Bhatinda (Punjab).
(iii) Devender Kumar Garg,
S/o. Late Shri. Chaman,
R/o: 491, Model Town (Urban Estate),
Bhatinda (Punjab).
... (ACCUSED PERSONS).
Date of Institution : 28.06.2003.
Date on which the case was : 10.10.2011.
received on transfer in this court
Date of reserving judgement : 10.09.2014.
Date of pronouncement : 16.10.2014.
Memo of Appearance:
(i) Sh.Harish Kumar Gupta, Ld.Special Public Prosecutor for
CBI.
(ii)Sh.Ramesh Gupta, Ld.Senior Advocate along with
Sh.C.L.Gupta, Advocate, Ld. Counsels for accused G.C.Gupta.
(iii)Sh.H.S.Sharma, Advocate, Ld.Counsel for accused
S.K.Chandel.
(iv)Sh.R.K.Kohli, Advocate, Ld.Counsel for accused D.K.Garg.
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Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
: J U D G E M E N T :
1. Insurance is an equitable transfer of the risk
of a loss, from one entity to another in exchange for a payment,
called premium. An insurer is a company selling the
insurance; whereas insured or policy holder, is the person or
entity buying the insurance policy. Marine Insurance covers
the loss to the cargo, transported through any mode of
transport, held between the point of origin and final
destination. The transaction involves the insured assuming a
guaranteed and known relatively small loss, in the form of
premium to the insurer, in exchange for the insurer's promise
to compensate the insured, in case of any financial loss.
2. Last few decades have seen a marked
increase in occurrences of international economic frauds
and the Marine Insurance, has not by any means been excluded
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
from these trends. In fact Marine Insurance has emerged as
one of the primary targets of maritime frauds. Fashionable
method of defrauding the underwriter Insurance Company, is
the presentation of fraudulent documentation to
substantiate a fraudulent claim.
3. One such marine frauds with National
Insurance Company, came to the fore, vide an "Internal
Vigilance Enquiry" held by the officers of the company
culminating in initiation of present proceedings.
4. The precursor of the present case is a written
complaint dated 06.02.2001 of Sh.K.Mahapatra, Chief
Vigilance Officer, National Insurance Company Ltd., Head
Office, Calcutta. On the basis of this complaint, FIR bearing
Number RC7(E)/2001EOW1/DLI on 29.06.2001 was
registered and investigated.
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Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
5. On conclusion of the investigations, CBI had
filed the present charge sheet against accused Girish Chandra
Gupta, Santosh Kumar Chandel and Devender Kumar Garg, on
the allegations that G.C.Gupta, the then Assistant Manager,
National Insurance Company Ltd., New Delhi and Santosh
Kumar Chandel, Assistant Manager, National Insurance
Company Ltd., Sangrur District Office, Punjab, during the year
199798, had entered into a criminal conspiracy with Devender
Kumar Garg, Proprietor of M/s Shiva Cables, the object of
which was to obtain a Marine Claim of Rs.2,01,359/ in favour
of M/s Shiva Cables, on the basis of bogus documents, knowing
or having reasons to believe them to be forged ones and thus to
cheat National Insurance Company. It is alleged that Girish
Chandra Gupta and Santosh Kumar Chandel, being public
servants criminally misconducted themselves and as member of
the conspiracy, had facilitated accused Devender Kumar Garg
to submit false and bogus documents in support of the claim,
thereby inducing National Insurance Company Ltd. to release
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
payment of Rs.2,01,359/ in favor of M/s Shiva Cables,
Proprietorship concern of accused D.K.Garg, thus obtaining
pecuniary advantage for him and corresponding wrongful loss
to NIC.
6. Before proceeding further, to delve upon the
matter, it is pertinent to have facts interse as emanating from
the charge sheet, which led to registration of FIR and filing of
the charge sheet by CBI in court for trial of the accused
persons. The same are as under:
F A C T U A L M A T R I X :
7. It is alleged that a cover note No. 043011 was
issued for consignment of shunt water capacitors, to be
transported from M/s Shiva Cables, Delhi to M/s Super
Traders, Samana (Punjab) in favour of M/s Shiva Cables, Delhi,
the insured.
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
8. It is alleged that this cover note was issued by
D.P.Rana, Administrative Officer of NIC on the basis of
instructions from V.P.Pandhi, who had given him a paper
mentioning details of premium for insurance.
9. It is alleged that against deposit of cash
premium of Rs.1495/ policy no.360900/4500402 of 1998 was
issued by D.P.Rana as per instructions of V.P.Pandhi.
10. It has been alleged that vide intimation letter
dated 02.11.1998 of M/s Super Traders, Samana, Consignee
loss of consignment was reported to National Insurance
Company Ltd., Divisional Office, Sangrur, Punjab, which was
received by S.K.Chandel, Assistant Manager and he deputed
M/s SBK Enterprises for assessment of loss and also endorsed
the same to the claim department for forwarding the matter to
the concerned office. It is alleged that D.K.Garg, who is the
consignor and insured in this claim is also surveyor being
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Proprietor of M/s SBK Enterprises. It is alleged that receipt for
Rs.5123/ dated 02.11.1998 of this company was signed by
D.K.Garg towards "surveyor's fee".
11. It has further been alleged that S.K.Chandel
intimated the loss alongwith survey report to National
Insurance Company, DOXXIII, Delhi on 10.11.1998 which was
received by G.C.Gupta, Assistant Manager on 17.11.1998. It is
alleged that claim form dated 04.11.1998 alongwith claim bill
dated 06.11.1998 was received by G.C.Gupta on 01.02.1998.
12. It is alleged that Smt. Snehlata Arora, Sr.
Assistant prepared the claim note, D.P.Rana, Administrative
Officer recommended the claim and G.C.Gupta approved the
claim for Rs.2,01,359/ on 30.12.1998.
13. It is alleged that claim cheque of Rs.
2,01,359/ was credited in the current account no. 158 of M/s
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Shiva Cables in Jammu & Kashmir Bank Ltd., Bhatinda
(Punjab) and Ashok Kumar, brother of accused D.K.Garg and
Smt. Renu Garg, wife of accused D.K.Garg were the authorized
signatories of this account and accused D.K.Garg had
introduced the opening of this account of M/s Shiva Cables.
14. It has been further alleged that the Consignor
M/s Shiva Cables, Delhi, Consignee M/s Super Traders,
Samana, Punjab and Transporter M/s Super Road Transport
Corporation, U.P. Border, Ghaziabad were non existent at the
given addresses during the relevant period of time and the
documents submitted in support of the claim were found to be
bogus and forged.
15. It is alleged that accused Devender Kumar
Garg, Proprietor of M/s Shiva Cables i.e. private person, had
entered into a criminal conspiracy with the officers of NIC,
Delhi namely G.C.Gupta Assistant Manager posted in DO
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Dated : 16.10.2014.
XXIII, NIC, Delhi and S.K.Chandel Assistant Manager posted
in DOSangrur, Punjab, during the year 1997 - 98, the object
of which was to cheat NIC, by submitting bogus / fake
documents with National Insurance Company for procuring an
insurance policy in favour of M/s Shiva Cables and then to
lodge a false marine claim and to induce National Insurance
Company Ltd. to release payment to the extent of Rs.2,01,359/
in favor of M/s Shiva Cables, and to cause wrongful loss to it.
16. It is alleged that documents submitted for
obtaining the Marine Claim in favor of M/s Shiva Cables were
forged and bogus and accused Devender Kumar Garg prepared
forged and bogus documents and cover note bearing no. 043011
was issued for consignment of shunt water capacitors to be
transported and policy no. 360900/4500402/1998 was issued on
instructions of V.P.Pandhi, the then Assistant Manager which
was signed by D.P.Rana.
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Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
17. It is alleged that all the accused persons in
order to achieve the object of conspiracy, had performed their
respective roles.
18. It is further alleged that G.C.Gupta and
S.K.Chandel officers of National Insurance Company Ltd. being
Public servants had criminally misconducted themselves by
abusing their official position as public servants in order to
cause pecuniary advantage to accused Devender Kumar Garg
being Proprietor of M/s Siva Cables.
19. It is alleged that on conclusion of
investigations, the report was submitted to the competent
authority for necessary sanction for prosecution against
accused G.C.Gupta, the then Assistant Manager, NIC, Delhi
and accused S.K.Chandel, the then Assistant Manager, NIC,
DOSangrur, the public servants, which was granted.
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
20. It is alleged that all the accused persons have
committed offences punishable under Section 120B read with
Section 420, 467, 468 & 471 IPC and 13 (2) read with 13 (1)
(d) of PC Act and also the substantive offences.
21. Whereafter, the present charge sheet was filed
in court against all the accused persons for proceeding against
them, as per law.
C O G N I Z A N C E O F O F F E N C E :
22. Pursuant to filing of charge sheet and after
perusal of the same in the light of supporting documents,
Ld.Predecessor of this court took cognizance of offence and
accused persons were accordingly summoned.
23. In compliance to the Provisions of Section
207 Cr.P.C, the accused persons were supplied with the copies
of charge sheet and documents relied upon by the prosecution.
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
C H A R G E :
24. Ld. Predecessor of this Court after hearing
Ld.Defence Counsels for all the accused persons passed orders
on the point of charge on 26.05.2006 forming an opinion that
prima facie case for offences punishable under section 120 B
IPC read with section 420/467/468/471 IPC and section 13
(2) read with section 13 (1) (d) of Prevention of Corruption
Act have been culled out against all the accused persons.
25. As per said order Ld. Predecessor of this Court
had further opined that primafacie case for substantive
charges for offences under section 13(2) read with section
13(1)(d) of Prevention of Corruption Act was made out
against Girish Chandra Gupta accused no.1, and Santosh
Kumar Chandel accused no. 2, the public servants and
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
substantive charges for offences under section 420/471 IPC
read with section 467/468 IPC against Devender Kumar Garg
accused no. 3, on the basis of material on record.
26. Requisite charge for offence under section
120B IPC read with section 420/467/468/471 IPC and under
section 13(2) read with section 13 (1) (d) of Prevention of
Corruption Act, 1988 against all the accused persons was
framed vide orders dated 30.05.2006.
27. Separate charge for substantive offence under
section 13(2) read with 13 (1) (d) of PC Act was framed
against Girish Chandra Gupta i.e. accused no.1, the public
servant.
28. Separate charge for substantive offence under
section 13(2) read with 13 (1) (d) of PC Act was framed
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Dated : 16.10.2014.
against Santosh Kumar Chandel i.e. accused no.2, the public
servant.
29. Separate charges for substantive offence under
section 420 IPC and offence under section 471 read with
section 467 IPC and also for offence under section 468 IPC
was framed against Devender Kumar Garg i.e. accused no.3.
30. The requisite charges framed against all the
accused persons were read over to them, to which they pleaded
not guilty and all of them claimed trial.
P R O S E C U T I O N E V I D E N C E :
31. Prosecution was thereafter called upon to
substantiate their case by examining their witnesses, listed in
the list of witnesses, filed along with the charge sheet. Availing
the given opportunities, CBI had examined 36 witnesses.
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
32. The witnesses so examined by the prosecution
to substantiate its case can be broadly categorized in Six
Categories :
33. First Category consists of witnesses from
National Insurance Company Ltd. (NIC). All these are
material witnesses examined by the prosecution, who have
deposed about the initiation of inquiry by the officers of
Vigilance Department of NIC, submission of inquiry report.
The witnesses of this category have further deposed that on the
basis of Vigilance report, complaint was lodged with CBI. These
witnesses have further deposed regarding the procedure as per
which a marine policy is issued and the mode and manner in
which claim, if any lodged, is processed, recommended and
approved. This category comprises of :
(i) PW4 Sh.K.Mahapatra, Chief Vigilance Officer, NIC, the
complainant ;
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(ii) PW5 Sh.A.K.Seth, Dy. Manager, Assistant Admin. Officer,
NIC ;
(iii) PW6 Smt.Pooja Soni, Assistant, NIC ;
(iv) PW7 Sh.Amrit Lal Gambhir, Assistant Admin. Officer,
NIC ;
(v) PW8 Sh.V.K.Bajaj, Assistant Admin. Officer, NIC ;
(vi)PW9 Sh.A.K.Tiwari, Dy. Manager, AO Vigilance, NIC ;
(vii)PW10 Sh.Madan Lal Meena, Assistant, NIC ;
(viii)PW11 Sh.Dharampal Rana, AO, NIC ;
(ix) PW12 Sh.Ram Bilas Bansal, Assistant, NIC ;
(x) PW16 Sh.N.K.Dutta, Regional Manager, NIC ;
(xi) PW17 Sh.R.C.Sood, Assistant, NIC ;
(xii) PW19 Smt.Snehlata Arora, Sr. Assistant, NIC ;
(xiii) PW20 Smt.Neelam Kataria, Admin. Officer, NIC ;
(xiv) PW21 Sh.Virender Singh Negi, Assistant, NIC ;
(xv) PW25 Sh.S.L.Rikhi, Divisional Manager, NIC ;
(xvi)PW28 Sh.Madan Singh Panwar, Assistant, NIC.
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34. The witnesses of the first category have
further deposed regarding issuance of cheque to the concerned
parties onces the claim is finally approved. The mode and
manner of appointment of 'tracer' as well as 'recovery agents'.
The witnesses of this category had further deposed about
submission of the records relevant to the present case to the
investigating officer during the course of investigations.
35. PW12 and PW25 who are also included in
this category are the witnesses from NIC itself, who have
deposed with respect to the transaction at Sangrur Office of
National Insurance Company.
36. Second Category of witnesses examined by
the prosecution are also important ones as they are from the
banks where National Insurance Company and M/s Shiva
Cables, the insured firm, were having their accounts. This
category further includes the two witnesses ie. PW29 and
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PW30 who were the authorized signatory for operation of the
bank account of M/s Shiva Cables. This category comprises of :
(i) PW18 Sh.R.Vaidhyanathan, Chief Manager, Indian
Overseas Bank ;
(ii) PW22 Sh.Vijay Kumar Kokiloo, Branch Manager,
Jammu & Kashmir Bank.
(iii) PW29 Sh. Ashok Kumar, Partner, M/s Shiva Cables.
(iv) PW30 Smt. Renu Garg, Partner, M/s Shiva Cables.
37. These witnesses have proved the bank records
being maintained by their respective banks during regular
course of its business, so far as relevant for the present case.
38. Third Category of witnesses are the ones who
have deposed about the nonexistence of the consignee i.e. M/s
Super Traders Samana Punjab & transporter i.e. M/s Super
Road Transport Corporation, Ghaziabad. This category
includes :
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(i) PW2 Sh.Surender Kumar, Clerk, M/s Sharma Transport
Corporation ;
(ii) PW3 Sh.Karan Singh, Proprietor, M/s Balajee Transport
Corporation ;
(iii) PW13 Sh.Baldev Singh, Proprietor, M/s Alwar Gujarat
Roadlines Transport Company;
(iv) PW14 Sh.Rajender Kumar, Proprietor, M/s Gupta
Electricals & Hardware, Punjab.
(v) PW15 Sh.Rajender Nath, Telephone Operator, Samana.
(vi) PW23 Sh.Jaswant Singh, Postman at P.O. Samana
Mandi.
(vii) PW24 Sh.Tarsem Kumar Goyal, Proprietor of shop
M/s Janta Electricals, Mandi.
(viii) PW26 Sh.Amit Kumar Ahuja, Clerk, M/s Super Road
Carrier.
(ix) PW27 Sh.B.S. Bisht, Inspector, CBI.
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39. Fourth Category of witnesses are
miscellaneous witnesses of house search and specimen
signatures and those who were joined during investigations by
the Investigating Officer including the CBI officers who on
directions of IO conducted part investigations. This category
includes:
(i) PW34 Sh. S.Balakrishna Shetty, Officer, Vijaya Bank ;
(ii) PW35 Sh. R.C.Madan, Officer, Punjab National Bank ;
(iii)PW36 Sh. R.K.Saran, Additional S.P., CBI.
40. Fifth Category of the witness examined by
the prosecution was those who had given Sanction for
prosecution of the accused public servants. This category
includes :
(i) PW1 Sh.Sujit Dass, General Manager, NIC, Calcutta:
who had given sanction for prosecution with respect to
accused Girish Chandra Gupta & accused Santosh Kumar
Chandel.
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41. Sixth Category of witnesses includes those
who remained associated with the investigations of the
present case in one form or the other, including the
Investigating Officer. This category also includes the
Handwriting Expert Witness, who assisted the Investigating
Agency in investigations. This category consists of :
(i) PW31 Sh. Mohinder Singh, Assistant, GEQD, CFSL ;
(ii) PW32 Sh.S.K.Kashyap, Additional S.P., CBI ;
(iii) PW33 Sh.R.P.Kaushal, Additional S.P., CBI.
42. The detail deposition of these witnesses is not
being adverted to, as the same shall be referred hereinafter
while dealing with the necessary ingredients of the offence,
with which accused have been charged, visavis the rival
contentions advanced by Ld.Special Public Prosecutor for CBI,
as well as by Ld.Defence Counsels for the accused persons.
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43. All the prosecution witnesses were cross
examined in detail by Sh.C.L.Gupta, Sh.H.S.Sharma and
Sh.R.K.Kohli, Advocates, Ld.Defence Counsels for the
accused persons. The cross examination of the witnesses is not
being mentioned for the sake of brevity, but the same and
material portion thereof, more particularly, the one referred to
during the course of arguments, shall be adverted to
hereinafter, while appreciating the legal and factual issues
raised on behalf of the accused, alongside appreciation of
evidence in entirety.
S T A T E M E N T O F A C C U S E D :
44. Separate statements of all the accused persons
were thereafter recorded under section 313 Cr.P.C., wherein
the prosecution evidence against them was put, which they
denied.
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45. On being asked, none of the accused persons
except accused no.1 Girish Chandra Gupta, wished to examine
witnesses in their defence. Accused G.C.Gupta was permitted
to lead the defence evidence.
D E F E N C E E V I D E N C E :
46. Availing the given opportunities, accused no.1
Girish Chandra Gupta had examined three witnesses in his
defence. Sh.Manish, posted as Ahlmad in Dwarka Court was
examined as DW1, Sh.A.K.Goel, posted as Dy. Manager with
NIC, Dehradun was examined as DW2 and Sh.Om Prakash,
ASI, Malkhana Incharge, EOWI, appeared in the witness
box as DW3.
47. DW1 Sh. Manish, Ahlmad produced the
record pertaining to the case titled "CBI vs. G.C.Gupta &
Ors." bearing CC No.34/11 and proved certified copy of
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deposition of PW11 Smt.Gopa Sahu, recorded in said case as
Ex. DW1/A.
48. DW2 Sh.A.K.Goel, posted as Dy. Manager
with NIC, Dehradun was examined on behalf of accused no. 1
G.C.Gupta. He appeared in the witness box and submitted
certified copy of circular dated 16.02.1996 with regard to
"Performance of Technical Duties" and the same was proved as
Ex. DW2/A. He also proved on record order dated 19.08.2013
Ex. DW2/B with respect to G.C.Gupta whereby his suspension
order was revoked and he was directed to join DDRO,
Dehradun. On being cross examined by Ld.PP for CBI, this
witness admitted that circular Ex. DW2/A brought by him
was marked to Regional Office, Chandigarh. This witness,
during cross examination by Ld. P.P. stated that he does not
have any knowledge of the conditions mentioned in order
Ex. DW2/B.
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49. Sh.Om Prakash, ASI, Malkhana Incharge,
EOWI, was also examined on behalf of accused no. 1
G.C.Gupta. This witness appeared in the witness box as DW3
and proved on record receipt Ex. DW3/A whereby documents
mentioned therein were returned to G.C.Gupta, which were
taken into possession during investigations, copy of said
counter foil bearing signatures of Sh.Mahesh Chand Gupta is
Ex. DW3/A1, copy of application filed by CBI before concerned
court seeking permission to return the unrelied documents is
Ex. DW3/B, memo dated 01.06.2004 issued by the then S.P.
Sh. Alok Mittal, directing the Investigating Officer to return
the unrelied documents obtaining necessary court permission is
Ex. DW3/C, application seeking court permission to return the
unrelied documents is Ex. DW3/D and copy of order passed by
the concerned court dated 09.06.2004 is Ex. DW3/E. This
witness was not at all cross examined on behalf of CBI.
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
50. As accused no. 2 Santosh Kumar Chandel and
accused no. 3 Devender Kumar Garg, despite grant of
opportunity, did not wish to examine any witness in their
defence. Thus, defence evidence qua them was closed.
51. I have heard the arguments advanced by
Sh.Harish Kumar Gupta, Ld.Special Public Prosecutor
for CBI. I also had the privilege to hear arguments from
Sh.Ramesh Gupta, Ld. Senior Advocate & Sh. C.L.Gupta,
Advocate on behalf of accused no. 1 Girish Chandra Gupta. I
have also heard arguments advanced by Sh.H.S.Sharma,
Advocate on behalf of accused S.K.Chandel and
Sh.R.K.Kohli, Advocate on behalf of accused Devender
Kumar Garg.
C.C.No: 33 / 2011 Page No.27 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
A R G U M E N T S O N B E H A L F O F C B I :
52. It is contended by Ld. Special Public
Prosecutor for CBI relying upon the deposition of the witnesses
examined by them during the course of trial, that prosecution
has been able to establish its case against the accused persons.
53. It is submitted by Ld. Public Prosecutor that
accused public servants had abused their official position and
thus criminally misconducted themselves, so as to cause
pecuniary advantage to their coaccused persons and
corresponding wrongful loss to National Insurance Company
Limited. He further contended that the accused public
servants by abusing their official position had entered into a
criminal conspiracy with the private person and facilitated him
to have a Marine Insurance Policy and to clear the claim on the
basis of forged documents, knowing or having reasons to
believe the same to be forged ones. He contended that the
insured had obtained a policy on the basis of a bogus
C.C.No: 33 / 2011 Page No.28 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
transaction, knowing or having reasons to believe that no such
goods which were sought to be insured, were transported. He
contended that the consignee as well as transporter were non
existent.
54. It is submitted by him that the insured as well
as other coaccused persons submitted bogus documents in
support of the claim and public servants in furtherance of the
conspiracy, let the same on record and without verifying the
genuineness of the same, passed the claim to cause wrongful
gain to the accused private person, including the surveyor and
others and corresponding wrongful loss to NIC. He contended
that all the accused persons be accordingly convicted under
relevant provisions of law.
D E F E N C E A R G U M E N T S :
55. To defend the accused persons, Sh.Ramesh
Gupta, Ld.Senior Advocate along with Sh.C.L.Gupta,
C.C.No: 33 / 2011 Page No.29 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Sh.H.S.Sharma and Sh.R.K.Kohli, Advocates, Ld.Defence
Counsels had led threedimensional attack to the prosecution
case.
56. Ld.Defence Counsels had led a 3 dimensional
attack on the prosecution case. The first dimensional attack
was on legal issues. Second dimensional attack was based
on mixed questions of law and facts. Whereas, the third
dimension of their arguments, revolved around the factual
aspects as has come up on record, on the basis of oral and
documentary evidence, during the course of trial.
57. Ld.Defence Counsels had opened their
arguments raising a LEGAL ISSUE stating that prosecution
has wrongly invoked Section 13(1) (d) of P.C.Act. It is contended
that as there are no allegations of payment of any illegal
gratification by the insured, surveyor or other private accused
persons to the accused public servants, therefore, the
C.C.No: 33 / 2011 Page No.30 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
provisions of Section 13(1) (d) of Prevention of Corruption
Act, cannot be invoked.
58. Second dimensional attack of Ld.Defence
Counsels was on mixed questions of "Law and Facts". The
same was with respect to the sanction for prosecution granted
against the public servants. The arguments advanced on this
aspect were twofold ie. :
(i) Incompetence of Sanctioning Authority: The authority
which had passed the sanction orders qua the public servants
was not competent to pass the same, therefore, the sanction
orders are bad in law.
(ii) Nonapplication of mind : Even if it is assumed that the
sanctioning authority was competent to pass the sanction
orders, the same were passed in a mechanical manner and
without application of mind as the sanctioning authority has
C.C.No: 33 / 2011 Page No.31 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
failed to pass sanction order against other similarly situated
officers who had performed the same functions, as has been
ascribed by the prosecution to accused G.C.Gupta and
S.K.Chandel
59. It is contended that as the sanction orders
were bad in law, therefore, the whole proceedings have become
nonest.
60. Third dimensional attack on the prosecution
case raised by Ld.Defence Counsels was on factual aspects, vis
avis the necessary ingredients of the offences with which
accused persons were charged.
61. These contentions raised by Ld.Defence
Counsels are divided in 2 categories. The first one being on
behalf of the accused PUBLIC SERVANTS, which are as
under :
C.C.No: 33 / 2011 Page No.32 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(i) No meeting of minds : That, there is no evidence brought
on record by the prosecution depicting any meeting of mind,
amongst the accused public servants on one hand and the
private person ie. Insured / surveyor on the other hand,
therefore, there is no question of any conspiracy whatsoever
between these two set of accused.
(ii) No overt act on the part of public servants : That, the
accused public servants had not done anything, in order to
achieve the socalled object of conspiracy as they were not party
to any such conspiracy / offence.
(iii) Official discharge of duties: That, the accused public
servants did, what was their official duty and had only
processed / recommended / passed the claim on the basis of the
recommendations / notes prepared by the subordinate staff.
C.C.No: 33 / 2011 Page No.33 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(iv) No knowledge about forgery: That, the accused public
servants did not have any knowledge that the documents
annexed with the claim form by the insured were forged ones.
(v) No duty of the public servants for verification of
documents: That, even otherwise, it was not the duty of
accused public servants to verify the genuineness of the
documents. Further, they had no reason to doubt the
genuineness of the documents so annexed with the claim
form.
(vi) Unfair Investigations : That, the investigations have
not been conducted by the investigating agency in a fair
manner as "pick and choose policy" was adopted and the
officers who had performed similar roles were not made
accused and the present accused has been wrongly and falsely
implicated, therefore they be acquitted of the charge.
C.C.No: 33 / 2011 Page No.34 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
62. Second category of the contentions advanced
by Sh.R.K.Kohli, Advocate, Ld.Defence Counsel for accused
D.K.Garg, on factual aspects visavis the necessary ingredients
of the offences, with which this accused was charged. The same
are as under:
(i) No meeting of mind: It is contended on behalf of accused
D.K.Garg, that there is no evidence on record to show any
meeting of mind amongst his client and the public servants.
(ii) Survey / Tracing Report not relevant for passing of
the claim: It is contended by Sh.R.K.Kohli, Advocate that
the survey report is not binding on the insurance company for
the purposes of processing or passing any claim.
(iii) No mensrea / involvement of accused D.K.Garg: It
is contended by Ld.Defence Counsel that accused D.K.Garg is
C.C.No: 33 / 2011 Page No.35 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
not the claimant / insured in this case, as he is neither
Proprietor nor owner of the firm M/s Shiva Cables, as has been
alleged against him by the prosecution in the charge sheet.
63. Ld.Defence Counsel had contended that
prosecution has failed to connect his client, with the offence
with which he was charged, by any cogent piece of evidence on
record.
A P P R E C I A T I O N O F E V I D E N C E A N D
R I V A L C O N T E N T I O N S :
64. Before adverting to appreciate the prosecution
as well as defence evidence which has come up on record visa
vis the charges against the accused persons, as well as the
arguments advanced on the mixed questions of facts and law, I
deem it appropriate to deal with that contentions first which
have been raised by Ld.Defence Counsels, on purely legal
C.C.No: 33 / 2011 Page No.36 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
aspects, in their quest to demolish the prosecution case at its
threshold.
65. The opening contention of Ld.Defence Counsels
was that, there is no averment or allegation in the entire
charge sheet of extension of any illegal gratification on the
part of insured or other private accused persons, to the accused
public servants, therefore by no stretch of imagination, the
provisions of Section 13(1) (d) of Prevention of Corruption
Act, could have been invoked. It is contended that on this
ground itself, the case cannot proceed and accused persons
should be acquitted.
66. In order to deal with this contention of
Ld.Defence Counsels, it is pertinent to make a mention of the
relevant provisions of Section 13 (1) (d) of Prevention of
Corruption Act. The same is as follows :
C.C.No: 33 / 2011 Page No.37 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Section 13: Criminal misconduct by a public servant :
(1) A public servant is said to commit the offence of criminal
misconduct,
(a) . . .
(b) . . .
(c) . . .
(d) if he,
(i) by corrupt or illegal means, obtains for
himself or for any other person any
valuable thing or pecuniary advantage ; or
(ii)by abusing his positioning as a public
servant, obtains for himself or for any
other person any valuable thing or
pecuniary advantage ; or
(iii)while holding office as a public
servant, obtains for any person any
valuable thing or pecuniary advantage
without any public interest ; or
(e) . . .
67. The phrases namely "corrupt , illegal means"
and "by abusing his position as public servants" are different
categories of corrupt practices, which are conjuncted by the
words "or" and not by the conjunction "and". This in itself
indicates that these three different categories are alternate
misconduct on the part of public servant and either of these
C.C.No: 33 / 2011 Page No.38 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
three practices, if done by public servant then the same can
constitute an offence under this Section.
68. The phraseology "By abusing his official
position as Public Servant" covers the acts done by the public
servant otherwise than by corrupt or illegal means. The gist of
the offence under this clause is, that a public officer abusing
his position as "public servant" obtains for himself or for other
person, any valuable thing. The word "abuse" used by the
Legislature means "misuse", ie. using his position for
something which is not intended. That abuse of the position
may be by corrupt or illegal means or otherwise than those
means". In view thereof, the Legislature never intended that
there has to be an express evidence of illegal gratification
before invocation of this section. In case, there are instances
and allegations that a person has abused his position as a
public servant, in order to cause advantage to anyone, that in
itself is sufficient for invocation of this Section.
C.C.No: 33 / 2011 Page No.39 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
69. Meaning thereby that in absence of any
allegations by the prosecution on the part of public servant of
demand and acceptance of illegal gratification for showing any
favor to a private individual, the provisions of Prevention of
Corruption Act cannot be invoked, as urged by Ld.Defence
Counsels, to my mind is farfetched and devoid of merits. As
there are allegation of abuse of official position by the
public servants in order to cause pecuniary advantage to their
coaccused, this clause of P.C.Act very much comes into play.
70. In view thereof, the contention advanced by
Ld.Defence Counsels that in the present case there are no
allegations on record that any of the public servants, who are
accused herein had adopted any corrupt or illegal means or
have obtained any pecuniary advantage for themselves, thus
section 13(1) (d) of P.C.Act cannot be invoked, is rejected.
However, the prosecution has to establish the necessary
C.C.No: 33 / 2011 Page No.40 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
ingredients of the offences, with which the accused persons
have been charged, on the basis of the evidence which has come
up on record, with which I shall be dealing hereinafter.
71. Having dealt with the contentions urged by
Ld.Defence Counsels on behalf of the accused persons on purely
legal grounds, I shall now delve upon to consider the
arguments raised involving mixed question of "Law and
Facts".
72. Leading a doublepronged attack on the prosecution case, Sh.Ramesh Gupta, Ld.Senior Advocate along with Sh.C.L.Gupta and Sh.H.S.Sharma, Advocates, Ld.Defence Counsels appearing on behalf of the public servants, contended that the provisions of Section 19 of Prevention of Corruption Act is a mandatory provision and the Court does not have the jurisdiction to take cognizance C.C.No: 33 / 2011 Page No.41 of 181 Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
when the "sanction" under this provision is granted in mechanical manner and without application of mind and that too, by an authority which was not competent to grant the same.
73. Ld.Defence Counsels contended that the sanction order passed by PW1 Sujit Dass against accused G.C.Gupta ie. Ex.PW.1/A ; and accused S.K.Chandel ie. Ex.PW.1/B are bad in law on 2 grounds. It is contended that PW1 was not the competent authority to pass the sanction order and secondly, the same is invalid and bad in law, as it was passed in a mechanical manner and without application of mind. It is contended that the sanctioning authority has failed to take into consideration the fact that other officers who have issued the policy or recommended / approved the claim, were not proceeded against and no sanction for prosecution, was granted against them.
C.C.No: 33 / 2011 Page No.42 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
74. I have considered the submissions advanced on this aspect and have considered the relevant provisions of law in the light of the precedents relied upon by Ld.Defence Counsels to substantiate their contentions.
75. For administration of Criminal Justice System, an onerous duty is cast on the Courts, to effectively tackle and control the endemic of offences, so as to prevent the society from drifting towards savage society. A balanced approach is required to be adopted by the courts giving strict interpretation to the Clauses of the Penal Provisions and simultaneously being mindful of the inviolable Constitutional Rights granted to the accused, so as to ensure fair trial.
76. Subjecting any individual to undergo "criminal trial" is an encroachment / restriction on his fundamental right to "life and liberty". As per the constitutional mandate enshrined in Article 21 of Constitution of India, granted to C.C.No: 33 / 2011 Page No.43 of 181 Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
each and every citizen of the country, no one can be deprived of his right to life and liberty, except by the due "process of law". Thus, if anyone accused of any offence, is to be subjected to criminal trial, then the same has to be in conformity to the procedures established by law. As whenever a particular procedure is prescribed by law, then all other procedures to do the same are proscribed.
77. Public servants in whatever capacities they are holding their offices, are supposed to give effect to the objects for which their organization is functioning, so that the benefits arising out of their actions, should benefit their country in general and their organization in particular. To achieve the object, for which the policies and plans of the organization are put in place, all the public servants are expected to discharge their functions with utmost propriety and all fairness. Experience however has revealed that many public servants, instead of using their good offices for the public good, C.C.No: 33 / 2011 Page No.44 of 181 Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
misuse the same for their personal benefits by indulging into corrupt and improper practices.
78. Legislature in its wisdom in order to curb such corrupt and improper practices had brought "Prevention of Corruption Act, 1988" on the Statute Book for not only, punishing those who had violated the very oath of honesty and sincerity with which they had assumed their office and indulged in 'corrupt practices', but also to deter the others from treading the path of dishonesty.
79. Being aware of the fact that some of the honest public servants may be dragged into vexatious and uncalled for prosecution, the Legislature had in Section19 of Prevention of Corruption Act, incorporated a "saviour clause" so as to protect them and to encourage them to continue with the good work. But for this clause, the government process would become 'static' as public servants would hesitate to take even C.C.No: 33 / 2011 Page No.45 of 181 Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
the most honest, bonafide and genuine decisions fearing harassment from frivolous and uncalled for allegations.
80. To balance these two conflicting interests, one of which is to give effect to the very object for which Prevention of Corruption Act was brought on the Statute Book to deal with the guilty sternly and on the other hand, to give effect to the shield provided by the Legislature to protect honest and diligent public servants from vexatious and uncalled for prosecution, the onerous duty has been placed on the Courts, which are an important cog in the wheels of Administration of Justice. The courts are obligated to strike balance between these two conflicting interests in such a manner, so that majesty of "Rule of Law" is neither undermined nor defeated.
81. Before proceeding to advert upon the submissions advanced, it is pertinent to make mention of C.C.No: 33 / 2011 Page No.46 of 181 Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Section 19 of Prevention of Corruption Act, which is reproduced as under: SECTION 19 : PREVIOUS SANCTION NECESSARY FOR PROSECUTION :
(1) No Court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government ;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government ;
(c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under subsection (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that C.C.No: 33 / 2011 Page No.47 of 181 Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Government or authority which would have been given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) :
(a) No finding, sentence or order passed by a Special judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under subsection (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby ;
(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in failure of justice;
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under subsection (3) whether the absence thereof, or any error, omission or irregularity in, such sanction has occasioned or resulted in failure C.C.No: 33 / 2011 Page No.48 of 181 Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation - For the purposes of this Section,
(a) error includes competency of the authority to grant sanction ;
(b) a sanction required for prosecution includes reference to any requirement that the prosecut ion shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
82. The object and character of this provision is evidently emanating from the words used in the Section by the Legislature : "No Court shall take cognizance of such offence, except with the previous sanction". Use of words "No" and "shall" makes it abundantly clear that the bar on the exercise of power of the Court to take cognizance of an offence is absolute and complete. As per Black's Law Dictionary, the word "cognizance" means jurisdiction or the exercise of C.C.No: 33 / 2011 Page No.49 of 181 Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
jurisdiction. In common parlance, it means "taking notice of". In view thereof, in absence of the sanction, the court is precluded from even taking notice of the offence or exercising its jurisdiction, in respect of a public servant.
83. Thus, the provision has been imparted a mandatory character and has been held so by various authoritative pronouncements by Hon'ble Apex Court. While holding grant of sanction to be a prerequisite or sinequanon for taking cognizance, regard is to be had to the fact that it can be a shield to discourage vexatious prosecution of innocent public servant, but it should not be permitted to be used as a weapon against the prosecution by the guilty.
84. The protection given by the Legislature is to be extended to the extent provided therein and it cannot and should not be stretched elastically to cover those, who are not intended by the Legislature to be under the protective C.C.No: 33 / 2011 Page No.50 of 181 Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
umbrella. As to my mind the Legislature by enacting any provision in the Act, which prohibits the taking of cognizance of offence by a Court, unless certain conditions are complied with, did not purport to condone the offence. Thus, such provision is to be construed on the basis of words used therein, without importing the words, which are not there.
85. In the backdrop of above, I shall consider the arguments advanced by Ld. Defence Counsels raised by them to challenge the authenticity of the sanction order Ex.PW. 1/A passed qua G.C.Gupta and Ex.PW.1/B qua accused S.K.Chandel by PW1 Sh. Sujit Dass, the then General Manager, NIC.
86. Firstly, I shall consider the arguments advanced on the aspect of "competence of the sanctioning authority" to pass the sanction orders.
C.C.No: 33 / 2011 Page No.51 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
87. Though, Ld.Defence Counsels during the course of arguments had contended that PW1 was not the competent authority to pass sanction orders against G.C.Gupta, who at relevant point of time was posted as Assistant Manager NIC, and S.K.Chandel who was also posted as such. However, nothing has been brought on record either during the cross examination of PW1 or during the course of arguments on behalf of the accused persons, to challenge the competence of PW1, the then General Manager NIC, with respect to passing of the sanction orders.
88. In terms of Section 19 (1) (c) of the Act, the sanction for prosecution has to be granted by an authority, which is competent to remove the said person from his office.
89. The question of competence of the "appointing / sanctioning authority" came up for consideration before Hon'ble Supreme Court in case titled C.C.No: 33 / 2011 Page No.52 of 181 Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
"Mohd.Iqbal Ahmed Vs. State of Andhra Pradesh", reported as AIR 1979 SC 677, wherein it was held that :
"... The authority which would be competent to grant sanction is the authority which is entitled to remove from service the public servant against whom sanction is sought".
90. Admittedly, in the present case, PW1 Sujit Kumar Dass, was posted as General Manager NIC at the relevant point of time. Being General Manager, it was PW1 who was the authority capable of removing the officers of the rank of Assistant Manager from the services. Nothing has been put to this witness during his cross examination either on behalf of accused G.C.Gupta or on behalf of accused S.K.Chandel, even to suggest that General Manager was not the competent authority to remove an officer of the rank of Assistant Manager from his office.
C.C.No: 33 / 2011 Page No.53 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
91. Thus PW1 being General Manager was the competent authority to remove an officer of the rank of Assistant Manager, and thus had the requisite competence to pass the sanction orders qua accused no.1 and 2, which he did.
92. In view thereof, I do not find any grounds in this contention of Ld.Defence Counsels that PW1 was not having competence to pass the sanction orders Ex.PW.1/A and Ex.PW.1/B.
93. This has brought me down to the second limb of the contentions raised by Ld.Defence Counsels stating that sanction orders were passed by PW1 without application of mind. It is contended by Ld.Defence Counsels relying upon the cross examination of PW1 that he had failed to look into the relevant documents and had merely passed the sanction orders at instance of CBI without taking into consideration that no sanction for prosecution is passed by him against the other C.C.No: 33 / 2011 Page No.54 of 181 Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
officers, who had performed similar roles. It is further contended that sanctioning authority had passed the sanction order without referring the matter to Chief Vigilance Officer and without getting the opinion of CVC on the same.
94. I have considered the submissions advanced and have perused the sanction orders as well as deposition of PW1 Sh.Sujit Kumar Dass.
95. It has been held by Hon'ble Apex Court time and again that the Court where the question of validity of sanction on the grounds of 'non application of mind' is raised, has to see as to whether the sanctioning authority did consider all the evidence collected by the investigating agency ie. oral as well as documentary.
96. Hon'ble Apex Court in a recent case titled "State of Maharashtra Vs. Mahesh G.Jain" reported as C.C.No: 33 / 2011 Page No.55 of 181 Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
Criminal Appeal no.2345 of 2009 decided on 28.05.2013 had aptly summed up the principles and guidelines which are required to be followed to decide the question which inundates the Trial Court, challenging the sanction order.
97. Hon'ble Apex Court in this judgement had considered all the previous laws laid down by it, including the cases referred to and relied upon by Ld. Defence Counsel mentioned hereinabove.
98. Hon'ble Apex Court after appreciating the earlier precedents on the subject, had culled out the guiding principles in Para 13 of its Judgement, which are reproduced as under :
(a) It is incumbent on the prosecution to prove that valid sanction has been granted by Sanctioning Authority after being satisfied that a case for sanction has been made out.
C.C.No: 33 / 2011 Page No.56 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(b) The Sanction Order may expressly show that the sanctioning authority has perused the material placed before him and after consideration of the circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing the evidence that the material was placed before the Sanctioning Authority and his satisfaction was arrived at, upon perusal of the material placed before him.
(d) Grant of Sanction is only an
administrative function and the
sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the Sanctioning Authority cannot be gone into, by the Court, as it does not sit in Appeal over the Sanction order.
(f) If the sanctioning authority has perused all the material placed before him and some of them have not been proved, that would not vitiate the order of sanction. C.C.No: 33 / 2011 Page No.57 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(g) The order of sanction is a pre requisite, as it is intended to provide a safeguard to the public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity.
..... (emphasis supplied).
99. In view of these guiding principles, more particularly the principle mentioned at Point (d) (e) (f) and
(g) above, the adequacy of the material placed before the Sanctioning authority is not required to be gone into, as this Court is not sitting in appeal over the sanction order.
100. The discretion whether to grant or not to grant the sanction order lies with the sanctioning authority and it is the subjective opinion of the said administrative authority, which it has to arrive, on the basis of material placed before it. C.C.No: 33 / 2011 Page No.58 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
101. The sanctioning authority was under an obligation to see the material placed before it by CBI, collected during the course of investigations and to arrive at a conclusion as to whether the same is sufficient and requires grant of sanction for prosecution of accused persons or not.
102. In view thereof, it is to be seen as to whether the complete record of the investigations, including oral and documentary evidence collected was or was not placed before the sanctioning authority.
103. It is apparent on perusal of cross examination of PW1 conducted on behalf of accused G.C.Gupta that he had perused the report of CBI forwarded by S.P., which contained calendar of events, gist of allegations as well as opinion of CBI, before passing the sanction order. The factum of placing the complete record after conclusion of the investigations before the C.C.No: 33 / 2011 Page No.59 of 181 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
competent authority, has also been deposed so, by the investigating officer ie. PW33 R.P.Kaushal. No suggestion, whatsoever was given either to PW1 or to PW33 on behalf of the accused persons, that the same was either not produced before PW1 or he had not applied his mind on the same. PW1 during the course of his cross examination, did state that he after perusing the material collected by the investigating agency had passed the sanction order.
104. The other contention of Ld.Defence Counsels that the sanctioning authority had passed the sanction order without referring the matter to CVC, as per notification no. 98 / VGL/62 dated 15.10.2003, to my mind is also devoid of any merits on 2 counts. Firstly, the sanction order Ex.PW.1/A and Ex.PW.1/B were passed by the sanctioning authority on 17.06.2003 ie. much before the date of notification, relied upon by Ld.Defence Counsels. Secondly, because Section 19 of the Act, as interpreted by Hon'ble Apex Court makes it obligatory C.C.No: 33 / 2011 Page No.60 of 181 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
on the part of sanctioning authority to grant or not to grant the same on the basis of its own subjective satisfaction & without any influence from any other authority.
105. In view thereof, there was no requirement of referring the matter to CVC by the sanctioning authority, for getting its opinion before passing the sanction orders, as has been urged by Ld.Defence Counsels.
106. Another facet to this argument advanced by Ld.Defence Counsels was that the sanction orders are bad as no sanction for prosecution was passed by PW1 against other similarly situated officers. This contention of Ld.Defence Counsels does not hold waters as the sanctioning authority before whom the material is placed by CBI after investigations, is required to form an opinion qua those persons only, for whom sanction is sought, as to whether the same is to be granted or not. This is beyond the scope / purview and C.C.No: 33 / 2011 Page No.61 of 181 Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
jurisdiction of sanctioning authority to pass sanction for prosecution against other officers qua whom neither any investigations were done, nor any evidence was collected nor the sanction was sought.
107. Even otherwise, the Legislature in order to stop unjustified claims raised on behalf of public servants to derive undue advantage of requirement of sanction have incorporated Section 19(3) of Prevention of Corruption Act which if read with section 465 of Cr.P.C, makes it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent Court, unless in the opinion of the Court, a failure of justice has been occasioned.
108. Hon'ble Apex Court in a recent case titled "State of Bihar & Ors. vs. Rajmangal Ram" in Criminal Appeal No.708 of 2014, arising out of SLP (Crl.) No.8013 of C.C.No: 33 / 2011 Page No.62 of 181 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
2012, decided on 31.03.2014 ; has held that the Sanction Order cannot be held to be invalid and proceedings cannot be interdicted without giving any finding to the effect that a failure of justice as a result thereof, has occasioned.
109. Merely because any error or irregularity has occurred in the sanction order, the same is not to be considered fatal, unless it results in failure of justice.
110. In the present case, as we are at the fagend of the trial and accused public servants have already undergone the trial, further I have not found any error or omission in the sanction orders passed qua them by the sanctioning authorities against the accused public servants, resulting in any failure of justice.
111. Thus, I do not find any merits in the contentions advanced by Ld.Defence Counsels to challenge the C.C.No: 33 / 2011 Page No.63 of 181 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
authenticity of the sanction orders ie. Ex.PW.1/A and Ex.PW. 1/B, which to my mind have been passed by the sanctioning authority with due & proper application of mind.
112. Having held that the sanction for prosecution granted against the public servants was valid, I shall now delve upon the contentions of Ld.Defence Counsels on factual aspects, visavis the necessary ingredients of the offences, with which the accused persons were charged.
113. To better appreciate the deposition of prosecution witnesses in the light of contentions advanced, it is pertinent to chalk out the procedure for processing of "Marine Claims". The same as emanating out of material on record, in the form of documentary and oral evidence as per the deposition of PW16 N.K.Dutta, PW12 Ram Vilas Bansal, PW5 A.K.Seth, PW7 A.L.Gambhir, PW9 A.K.Tiwari, PW11 D.P.Rana, PW19 Sneh Lata Arora and PW25 S.L.Rikhi, C.C.No: 33 / 2011 Page No.64 of 181 Judgement in the matter of:-
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CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
which has not been disputed, even by the accused persons, is as under : Procedure for processing Marine Claims:
(a)Whenever any commercial transaction takes place between two parties located at different places for purchase of goods, the same are required to be transported by the seller to purchaser.
(b) These goods during the course of transportation, can be insured, for which Marine Open Policy is issued against premium.
(c) The seller is known as "consignor" whereas, its recipient or purchaser is known as "consignee".
(d) Either of the two, can pay the premium for taking the "Marine Insurance Policy" and the said party is known as "insured" whereas, the company is known as "insurer".
(e) At the time of taking the policy, the insured submits the proposal along with requisite documents on which insurer, calculates the premium and after collection of the premium, a Cover Note is issued.
(f) Thereafter, the insurer issues the "Insurance Policy".
(g) If, during subsistence of policy, goods are either C.C.No: 33 / 2011 Page No.65 of 181 Judgement in the matter of:-
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Dated : 16.10.2014.
stolen or damaged during transit, a claim is lodged either to the "Policy Issuing Office" or to any nearest office on which a "surveyor" from the approved list of that branch, is appointed by the Branch Manager, to assess the loss.
(h) The surveyor so appointed, then submits a report along with the photographs and relevant documents.
(i) Concerned Clerk posted with NIC, then processes the claim and submits it to its higher authority, who recommends the claim and puts the same up for approval of the competent authority.
(j) After approval of the competent authority, cheque is prepared by the accounts department, which is signed by 2 authorized signatories, whereafter it is handed over to the "insured / claimant".
(j) The Surveyor's Fee is also paid at the same time while settling the claim, as at times, surveyor receives his fee from the insured or the party, who had lodged the intimation of loss.
(k) If the right of recovery from the carrier / transporter is protected, the Branch Manager, after settling the claim can appoint a recovery agent, who then recovers whatever recovery, which can be affected from the transporter and deposits it with the insurance company, after getting approval of the same from the insurance company.
C.C.No: 33 / 2011 Page No.66 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
114. In view of abovementioned duties and obligations which these public servants, being responsible officers of National Insurance Company, were required to fulfil, it is to be seen whether they had performed their duties, as was expected from them or whether the actions and omissions of theirs were laden with any dishonest intention, in order to cause any pecuniary advantage to their coaccused persons for which regard is to be had to the evidence that has come up on record.
115. Prosecution evidence which has come up on record, visavis each of the accused facing trial is required to be considered. Conspiracy is the most pivotal part of the prosecution case, which is the primary charge against the accused persons, being axis around which revolves the other charges. As per the case of prosecution, the officers of NIC being public servants, had entered into a criminal conspiracy with the private persons, object of which was to cheat NIC. C.C.No: 33 / 2011 Page No.67 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
116. It is contended by Ld.Prosecutor that the public servants knowing or having reasons to believe that the documents submitted for issuance of policy as well as those submitted in support of the claim to be forged ones, have facilitated the submission of same by or on behalf of the insured, to them on the basis of which the claim was passed, which led to release of payment by NIC to the private persons and thus they have caused pecuniary advantage to them and corresponding wrongful loss to NIC.
117. Ld.Public Prosecutor made an endeavour to invoke Section 10 of Indian Evidence Act. He, in order to buttress his arguments, contended that all the conspirators should be made constructively liable for the substantive offences committed, pursuant to the conspiracy on the basis of the "Principle of Agency". He contended that the public servants had entered into a conspiracy with the private C.C.No: 33 / 2011 Page No.68 of 181 Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
persons, therefore the acts done by the private persons, pursuant to the conspiracy, in contemplation of law, should be treated as committed by each one of them, therefore all of them should be held responsible and liable for the same.
118. I have considered the submissions advanced by Ld.Public Prosecutor. In order to appreciate the same, it is pertinent to make mention of Section 10 of Indian Evidence Act, which reads as under : SECTION 10 THINGS SAID OR DONE BY CONSPIRATOR IN REFERENCE TO COMMON DESIGN - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. C.C.No: 33 / 2011 Page No.69 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
119. Bare perusal of this Section makes it evident that there is no such deeming provision in it, as has been contended by Ld.Prosecutor. No doubt, Section 10 rests on the 'Principle of Agency', but it lays down only a rule of relevancy.
As per the provisions of this Section, anything done or said by one of the conspirators in reference to the common intention becomes "relevant fact" as against each of the conspirators, to prove two things :
(i) Existence of the conspiracy ; and
(ii) That, they were party to this conspiracy.
120. This has been held so by Privy Counsel in case titled "Mirza Akbar vs. King Emperor" reported as AIR 1940 PC 176. This interpretation has been followed by Hon'ble Apex Court in catena of decisions.
121. Hon'ble Mr.Justice Jagannath Shetty had analyzed this Section in case titled "Kehar Singh & Ors. v/s C.C.No: 33 / 2011 Page No.70 of 181 Judgement in the matter of:-
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State (Delhi Administration)" reported as 1988 (3) SCC 609, as under : "From an analysis of the section, it will be seen that Section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his coconspirator. One such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it."
122. In view thereof, distinction was made between the conspiracy and the offence (s) committed, pursuant to the conspiracy. It is only in order to prove the existence of conspiracy and parties to the conspiracy, that this rule of C.C.No: 33 / 2011 Page No.71 of 181 Judgement in the matter of:-
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evidence, can be put in service.
"Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy."
123. In view thereof, I do not find any merits in the contentions advanced by Ld.Public Prosecutor as the "Theory of Agency" cannot be extended thus far, that is to say, to hold all the conspirators guilty of actual offence(s) committed in execution of common design, if such offence(s) were committed by one of them, without participation of others.
124. Whether or not, conspirators will be liable for substantive offence other than the conspiracy and if so, to what extent, has to be proved on record by the prosecution on the basis of evidence which, I shall be adverting to hereinafter. C.C.No: 33 / 2011 Page No.72 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
125. However, before going that far, I would hasten to add that prosecution has first to establish that all the accused persons facing trial, were in fact party to the alleged conspiracy with which they have been charged.
126. In an attempt to demolish the prosecution case, Sh.Ramesh Gupta, Ld.Senior Advocate along with Sh.C.L.Gupta, Sh.H.S.Sharma & Sh.R.K.Kohli Advocates vociferously contended during the course of arguments, that there is nothing on record brought by the prosecution during the course of evidence, from which it can be inferred that there was any meeting of mind between the public servants and the other accused persons. It is further submitted by Ld.Defence Counsels of all the accused persons, that the conspiracy can only be established on the basis of circumstantial evidence. Further, the circumstances proved, should be such that they C.C.No: 33 / 2011 Page No.73 of 181 Judgement in the matter of:-
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must form a chain of events, leading to an irrepressible conclusion about guilt of the accused.
127. In support of their contentions, Ld.Defence Counsels had relied upon the law laid down in cases titled as under : (i )"Kehar Singh & Ors. vs. State" (supra) ;
(ii) "K.R.Purushotnaman vs. State of Kerala"
reported as 2005 (3) JCC (SC) 1847 ;
(iii) "Baldev Singh vs. State of Punjab";
reported as 2009 (3) SCC (CRI.) 66.
(iv) "John Pandian vs. State"
reported as 2011 (1) Crimes SC 1.
128. I have considered the submissions advanced and have perused the law laid down by Hon'ble Apex Court in the precedents relied upon by Ld.Defence Counsels. There is no C.C.No: 33 / 2011 Page No.74 of 181 Judgement in the matter of:-
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denying the fact that Hon'ble Apex Court while holding that the offence of conspiracy is committed in secrecy and can be proved only by circumstantial evidence has held that these circumstances should be proved, beyond reasonable doubt, leading to the guilt of the accused.
129. Section 120A IPC defines "criminal conspiracy". Accordingly to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal, by illegal means such an agreement is designated as "criminal conspiracy".
130. In view of this definition, the gist of the offence is "an agreement to break the law". Parties to such an agreement are guilty of criminal conspiracy, though the illegal act agreed upon by them to be done, has not or could not be done. It is not necessary that all the parties to such an agreement should agree to do a single illegal act. It may C.C.No: 33 / 2011 Page No.75 of 181 Judgement in the matter of:-
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comprise of commission of a number of acts. It is not necessary that all the conspirators must know each and every detail of the conspiracy.
131. Conspiracy is seldom an open affair. Its existence and objects can only be deduced from circumstances of the case and conduct of the accused, who are party to such conspiracy.
132. As Conspiracy has to be and can only be inferred from the physical manifestation of conduct of the conspirators / accused. Thus, to deduce actual meeting of minds amongst the accused person to find out transmission of thoughts, the actual words used by them during communication, are to be considered.
133. The conduct of the conspirators / accused are to be deciphered not only from the actual words spoken by them C.C.No: 33 / 2011 Page No.76 of 181 Judgement in the matter of:-
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but also from their body language, mannerism and behaviour by which they intervene in the conversation taking place between the complainant and coaccused, as their state of mind has to be inferred on the basis of their conduct.
134. Hon'ble Apex Court in case titled "V.C.Shukla vs. State" reported as 1980 (2) SCC ; had held that in most cases it will be difficult to get direct evidence of the crime, but conspiracy can be inferred even from circumstances giving rise to a conclusive or irrepressible inference of an agreement between two or more persons, committing an offence.
135. Hon'ble Apex Court in case titled "Noor Mohd. Yusuf Momin vs. State of Maharashtra" reported as AIR 1971 SC 885, has held : "...in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and C.C.No: 33 / 2011 Page No.77 of 181 Judgement in the matter of:-
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antecedent and subsequent conduct, among other factors, constitute relevant material."
136. Hon'ble Apex Court in another case titled "John Pandian vs. State" reported as 2011 (1) Crimes SC 1, has further held : "...that there must be a meeting of minds resulting the ultimate decision, taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred even from the circumstances giving rise to a conclusive or irresistible inference of crime between the two or more persons to commit an offence. It was further held that a few bits here and a few bit there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy ."
137. For the purposes of considering the conduct of the accused persons so as to deduce about his complicity with the conspiracy, a "rule of caution" has been laid down by C.C.No: 33 / 2011 Page No.78 of 181 Judgement in the matter of:-
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Dated : 16.10.2014.
Privy Counsel in case reported as AIR 1954 PC 140 that : "In a joint trial care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against others".
138. In case titled "Alvin Krumlewitch v. United States of America" reported as (93 L.Ed. 790) ; it has been held by Justice Jackson that : "codefendant in a conspiracy trial occupies an uneasy seat" and "it is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together."
139. These words of caution were reiterated by Hon'ble Apex Court speaking through Hon'ble Mr.Justice D.P.Wadhwa in case titled "State vs. Nalini" reported as 1999 (5) SCC 253 ; that : C.C.No: 33 / 2011 Page No.79 of 181 Judgement in the matter of:-
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"There is a need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that "there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy".
"It has been further held that criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy".
140. Hon'ble Apex Court in case titled "Esher Singh Vs. State of A.P." reported as 2004 (11) SCC 585 has held as under : "A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused".
C.C.No: 33 / 2011 Page No.80 of 181
Judgement in the matter of:-
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Dated : 16.10.2014.
141. Being aware of the fact that for the purposes of appreciating the evidence on record with respect to the allegations of conspiracy, the circumstances in which the accused acted, their actions and mannerism are required to be considered, which I shall look into, mindful of the words of caution laid down by Hon'ble Apex Court in above referred precedents.
142. The marine policy Ex. PW8/A17 was issued to cover a consignment purportedly to be sent by M/s Shiva Cables, Delhi, the insured / consignor consisting of "Shunt Water Capacitors" to M/s Super Traders Samana, Patiala, the consignee through M/s Super Road Transport Corporation. The claim was lodged by the insured, processed and passed by the Insurance Company / insurer for alleged damage to the consignment by the transporter. In order to ascertain the authenticity and genuineness of the transaction the essential C.C.No: 33 / 2011 Page No.81 of 181 Judgement in the matter of:-
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requisites are the existence of alleged consignor, the consignee and the transporter, through whom the consignment was sought to be transported and damage to the consignment by the transporter.
143. In case, any of these links is missing or is not in existence, then as a necessary corollary it would follow that the whole transaction was false / fake and the claim amount has been wrongly and fraudulently obtained from the Insurance Company by cheating it and thus causing wrongful loss to it.
144. In order to ascertain above, the most important file is the claim file prepared and maintained by DO XXIII of NIC. The said claim file Ex.PW.5/2 is proved on record by PW5 Sh.A.K.Seth, Vigilance Officer of the Insurance Company. This file as per PW5 was taken in possession by Vigilance Department of the Insurance Company from DO C.C.No: 33 / 2011 Page No.82 of 181 Judgement in the matter of:-
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XXIII in 1999. The same was handed over to IO PW32 S.K.Kashyap by PW8 V.K.Bajaj vide seizure memo Ex. PW5/A.
145. It is contended by Ld. Public Prosecutor that as the complete documents required for processing and settlement of claim are not available in the claim file Ex. PW5/2, therefore, that in itself is sufficient to prove that claim has been fraudulently given to the insured by accused public servants. This contention of Ld. Public Prosecutor is controverted by Ld. Defence Counsels on the ground that as complete chain of handing over of the file and its preservance in safe custody has not been proved, therefore, nonavailability of the documents in claim file cannot be imputed on the public servants. Ld. Defence Counsels placed reliance on the precedent titled "Anil Maheshwari & Others Versus CBI"
reported as 2013 (136) DRJ 249.
C.C.No: 33 / 2011 Page No.83 of 181
Judgement in the matter of:-
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146. I have considered the rival contentions and have perused the precedent relied upon in the light of evidence on record.
147. PW5 A.K.Seth during his cross examination did state that the claim files including Ex. PW5/2 were seized by his team and they had not carried out any other proceedings at the office of accused except seizing the files. He further stated that he cannot recollect from whose custody these files were seized. Similar version has come on record in the deposition of PW7 A.L.Gambhir and PW9 A.K.Tiwari the other officers of Vigilance team.
148. During his cross examination, PW32 S.K.Kashyap, the initial Investigating officer stated that he does not remember to have examined the aspect as to in whose custody, the claim files were for the period 1999 till 2001 when he seized the same from PW8 V.K.Bajaj. He admitted that he C.C.No: 33 / 2011 Page No.84 of 181 Judgement in the matter of:-
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had not taken into possession the inventory regarding seizure of the files by the Vigilance department from DOXXIII, during the course of Vigilance enquiry in the year 1999.
149. The prosecution evidence which has come up on record reveals that the present claim file Ex. PW5/2 was the record of DOXIII of NIC where accused G.C.Gupta was posted at the relevant point of time. However, prosecution has not examined the officer of DOXXIII from whose custody, this file was seized for the first time by the Vigilance team of NIC. Further, no inventory of the documents available in the claim file was prepared by the officers of Vigilance department of NIC, so as to prove on record what were the documents available in the claim file at the time of sanction of the claim. The claim file was also not sealed either by the officers of Vigilance department or by IO at the time of respective seizure by them in the years 1999 & 2001, thus no sanctity of preservation of the documents in claim file was maintained. C.C.No: 33 / 2011 Page No.85 of 181
Judgement in the matter of:-
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Dated : 16.10.2014.
150. In view thereof, the precedent relied upon by Ld. Defence Counsels in "Anil Maheshwari's case" (Supra) decided by Hon'ble High Court of Delhi in almost similar case squarely applies on this aspect. Thus the contention of Ld. Public Prosecutor that in absence of required documents from the file Ex. PW5/2 the public servants be hauled up for passing the claim fraudulently, does not hold ground.
151. While holding so, I would hasten to add that a counter contention raised by Ld. Defence Counsels, that for the purposes of adjudication of present case, the claim file Ex. PW5/2 cannot be looked into and is of no relevance, cannot be accepted. As the accused persons themselves are relying on the documents in the claim file and it is not the case of any of the parties that the documents on record in file Ex. PW5/2 were inserted subsequently by Vigilance Department or the Investigating agency. Neither any such suggestion was put on C.C.No: 33 / 2011 Page No.86 of 181 Judgement in the matter of:-
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behalf of accused persons to prosecution witnesses from the Insurance Company nor to the witnesses from the investigating agency.
152. Thus the documents in the claim file are the relevant and important ones to ascertain the charges with which accused persons have been charged.
NON EXISTENCE of consignee M/s Super Traders, Samana & Transporter M/s Super Road Transport Corporation, Chikamberpur, U.P. Border.
153. As per the claim file Ex. PW5/2, the intimation of loss to consignment was given by alleged consignee to Sangrur office of NIC, vide their letter dated 02.11.1998. As per this letter Ex. PW8/A20 the address of C.C.No: 33 / 2011 Page No.87 of 181 Judgement in the matter of:-
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consignee was M/s Super Traders Bus Stand Road, Samana Distt. Patiala. Further, as per the copy of alleged G.R. No. 18734 dated 26.10.1998 Ex. PW8/A5 and the damage certificate Ex. PW32/C, the address of transporter / carrier was M/s Super Road Transport Corporation, Chunna Bhatti Road, Chikamberpur, U.P.Border, Ghaziabad.
154. It is alleged by the prosecution that no such firms were found existing at the given addresses.
155. Prosecution in order to prove the same had examined IO PW33 R.P.Kaushal, PW27 Inspector B.S.Bisht, PW14 Rajinder Kumar, PW15 Rajinder Nath, PW23 Jaswant Singh & PW24 Tarsem Kumar Goyal with respect to M/s Super Traders. With respect to transporter / carrier prosecution had examined PW2 Surender Kumar, PW3 Karan Singh, PW13 Baldev Singh & PW26 Amit Kumar besides the Investigating Officers.
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156. PW33 R.P.Kaushal, the Investigating Officer deposed that he was assisted by Inspector B.S.Bisht during investigations. PW27 Inspector B.S.Bisht corroborating the same had deposed that he was deputed by I.O. R.P.Kaushal to verify the existence of M/s Super Traders & M/s Super Road Transport Corporation.
157. PW27 deposed that he himself had visited Samana Mandi, Patiala and made inquiries regarding existence of M/s Super Traders from the postman of the area and from businessmen running their business from the said locality / area. He deposed that on enquiry from them and personal visit, he found no firm by the name of M/s Super Traders existing at the given address of Bus Stand Road Samana, Distt. Patiala.
158. No doubt PW27 was cross examined by Ld. Defence Counsels, but nothing material could be extracted C.C.No: 33 / 2011 Page No.89 of 181 Judgement in the matter of:-
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from him, so as raise any doubt with respect to the enquiries made by him. He denied the suggestion of giving his report to IO without visiting the area. Merely because he did not take any document in possession from the postman or businessmen examined by him, does not make his deposition untrustworthy.
159. The contention raised by Ld. Defence Counsels that had PW27 visited the area, he would have collected the identity proofs of the persons examined by him is devoid of any merits. As those witnesses themselves appear in the witness box and deposed that inquiries were made from them by CBI regarding existence of M/s Super Traders, if any, at Bus Stand Road, Samana.
160. Prosecution had examined two businessmen operating from said area viz. PW14 Rajinder Kumar, Proprietor of M/s Gupta Electricals & PW24 Tarsem Kumar C.C.No: 33 / 2011 Page No.90 of 181 Judgement in the matter of:-
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Goyal, Proprietor of M/s Janta Electricals. Both these witnesses deposed that as they are operating their businesses from said area, since long thus they are aware of all other firms dealing in electricals goods from that area.
161. On being cross examined both these witnesses stated that no firm by the name of M/s Super Traders existed or operated from Bus Stand Road, Samana, Patiala. Further, I did not find anything notice worthy in their cross examination so as to have any doubt on their deposition.
162. Apart from the businessmen of the area, prosecution had examined PW15 Sh. Rajender Nath, Telephone Operator from Samana Telephone Exchange. This witness after seeing the letter head of M/s Super Traders Ex.
PW8/A20 vide which alleged loss intimation was reported to Sangrur office of NIC, stated that the telephone number 40227 mentioned thereon, does not belong to telephone exchange of C.C.No: 33 / 2011 Page No.91 of 181 Judgement in the matter of:-
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Samana Mandi. He deposed that in the year 199798 the number of digits allotted to Samana Telephone Exchange started from 20000 whereas the series staring from '400' onwards was allotted to Patran Distt. Patiala. From the cross examination of this witness, I could not see any reason for him to have deposed falsely. No reasons for his deposing falsely were imputed to him on behalf of accused persons.
163. Prosecution had also examined the postman of the area viz. Sh. Jaswant Singh who appeared in the witness box as PW23. He during his evidence, clinched the whole issue. He deposed that being postman of the area, he knows almost all establishments and firms situated there. He deposed that he never came across any firm by the name of M/s Super Traders operating from said area. He authoritatively deposed during his cross examination that it is not possible of him being not aware of existence of a firm in the area, only because of nonreceipt of any letter in the name of said firm. C.C.No: 33 / 2011 Page No.92 of 181
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164. It is apparent from deposition of these independent witnesses who have no interest for or against any of the parties, that PW27 Inspector B.S.Bisht did visit the area to make enquiries about M/s Super Traders. Further from the deposition of these prosecution witnesses, on which I have no reason to doubt, it is established on record, that no firm by the name of M/s Super Traders was in existence or operational from Bus Stand Road Samana, Distt. Patiala at the relevant point of time.
165. PW27 Inspector B.S.Bisht had further deposed that in order to ascertain the existence of M/s Super Road Transport Corporation, he had visited Chunna Bhatti Road, Chikamberpur, U.P. Border, Ghaziabad and made enquiries and had also recorded the statement of witnesses enquired. He deposed that no firm by the name of M/s Super Road Transport Corporation was in existence or operational from said area.
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166. PW2 Surinder Kumar working with M/s Sharma Transport Corporation, PW3 Karan Singh, Proprietor of M/s Balajee Transport Corporation, PW13 Baldev Singh, Proprietor of M/s Alwar Gujrat Roadlines Corporation & PW26 Amit Kumar working with M/s Super Road Carriers corroborated the factum of inquiries made by PW27 in the area to ascertain the existence of M/s Super Road Transport Corporation, thereby belying the contention urged on behalf of accused persons, that PW27 had submitted his report without visiting the area.
167. These prosecution witnesses have deposed that they by virtue of their owning or being employee with the respective transport companies, operating from the area of Chunna Bhatti Road, are aware of other transporters operating therefrom. All these prosecution witnesses categorically deposed that they never came across any firm by the name of C.C.No: 33 / 2011 Page No.94 of 181 Judgement in the matter of:-
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M/s Super Road Transport Corporation operating from the said area. They went on to depose that no such firm existed / operated from the said area.
168. No doubt all these witnesses were cross examined on behalf of accused persons, but during their cross examination, no motive whatsoever was imputed or suggested to them for their deposing so.
169. Considering the fact that they all are independent witnesses with no positive or negative connection or link with either of the parties, I have no reason to doubt the authenticity of the version given on record by them.
170. It is contended by Sh. R.K.Kohli, Ld. Defence Counsel that merely because these witnesses never came across or heard the name of any firm, that does not necessarily mean that the said firm is not in existence. C.C.No: 33 / 2011 Page No.95 of 181
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171. Though, I find some force in this contention of Ld. Defence Counsel but that does not take away the efforts put in by the Investigating agency and prosecution to put forth a particular fact. It is easier to prove and establish a positive fact i.e. existence of something but it is very difficult to prove a negative or nonexistence of something. For that you can have 'n' number of witnesses, but a possible objection can still st come that probably n + 1 witness, if examined might have deposed otherwise.
172. To obviate this situation, it is to be seen as to whether prosecution had examined the best witnesses or not.
173. To my mind prosecution has done exactly that.
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have been none other than the businessmen or persons engaged in same sort of business in that locality. Prosecution did exactly that and examined those witnesses who are engaged in similar activity from that area.
174. Besides that, the postman of the concerned area, who by virtue of his official duties and nature thereof, become conversant with all the establishments operating in the area, wherein he used to distribute dak, is the best available witness.
175. Prosecution did exactly that and had also examined the postman of the area to establish, that the alleged consignee M/s Super Traders did not exist at the given address.
It had also examined the witness from the concerned telephone exchange who categorically deposed that the phone number mentioned on letter dated 02.11.1998 Ex. PW8/A20 is not of Samana Telephone Exchange.
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176. Prosecution to my mind had examined best available witnesses. Further the deposition of all these witnesses has not been impeached, as nothing has been brought on record during their cross examination for me to infer any reason to doubt the genuineness of their testimonies given by them during their examination in chief.
177. Thus, from deposition of these independent witnesses which are corroborated by the version given on record by PW27 Inspector B.S.Bisht, prosecution has been able to establish that neither the consignee i.e. M/s Super Traders, nor the transporter / carrier M/s Super Road Transport Corporation were in existence at the given addresses at relevant point of time.
178. The resultant inference is that neither any goods were sold to the alleged consignee i.e. M/s Super Traders C.C.No: 33 / 2011 Page No.98 of 181 Judgement in the matter of:-
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vide copy of Invoice which is at page number 17 of claim file Ex. PW5/2, nor any such consignment was transported vide G.R. No. 18734 dated 26.10.1998 Ex. PW8/A5 through M/s Super Road Transport Corporation.
179. Thus, the marine policy Ex. PW8/A17 was fraudulently obtained to cover a consignment which was never to be sent, with intention to lodge a false claim by the insured / claimant M/s Shiva Cables, the alleged consignor.
NON EXISTENCE of M/s Shiva Cables, the consignor / insured from the given address i.e. B175,Shivalik, Malviya Nagar, New Delhi110017.
180. Investigating Officer PW33 R.P.Kaushal during the course of his deposition had stated that no firm by name of M/s Shiva Cables was in existence at the given address.
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181. Prosecution to lend credence to this version of IO had examined PW5 Sh.A.K.Seth, PW7 Sh.A.L.Gambhir & PW9 Sh.A.K.Tiwari, the members of the Vigilance team who had conducted enquiry into the present case and submitted their report Ex. PW4/2 on the basis of which complaint was filed by PW4 leading to registration of present FIR.
182. Perusal of deposition of these witnesses i.e. PW5, PW7 & PW9 coupled with their report Ex. PW4/2, it is evident that they indicted that, "We have tried to locate M/s Shiva Cables at the address given but they are not existing at the given address. The telephone number mentioned on the letter head of M/s Shiva Cables pertains to one M/s Lata Steel India whose address is the next one to that of Shiva Cables. They have also informed us that there was no firm by the name of M/s Shiva Cables in the vicinity".
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183. Nothing was put to PW5 A.K.Seth & PW7 A.L.Ghambir on behalf of accused persons to controvert their report Ex. PW4/2, to that effect, during their cross examination. Not even a single suggestion was given to these two witnesses that the phone number mentioned on letter heads of M/s Shiva Cables i.e. 6220535 is not of M/s Lata Steel India as has been mentioned in the report Ex. PW4/2. Only one question was put to PW9 Sh.A.K.Tiwari on behalf of accused D.K.Garg asking him, as to whether they had taken anything in writing from M/s Lata Steels India that this phone number belongs to them. To which the witness stated that he does not remember.
184. Even to this witness no suggestion was given that M/s Shiva Cables existed from the address given on the letter heads on which claim was lodged with NIC as per the claim file Ex. PW5/2. Nothing was suggested to PW5, PW7 C.C.No: 33 / 2011 Page No.101 of 181 Judgement in the matter of:-
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& PW9 on behalf of accused that the report Ex. PW4/2 is wrong to that effect.
185. Sh. R.K.Kohli, Ld. Defence Counsel contended that prosecution has to establish its case against accused beyond reasonable doubt. He contended that merely because the report Ex. PW4/2 was not controverted on behalf of accused, it does not mean that the same stands proved.
186. No doubt it is settled proposition of law that burden of proof in a criminal trial always rests on the prosecution and that it never shifts. However, the legislature while recognizing the onerous task enjoined on the Court to unearth the truth, has incorporated the provisions of Section 106 of Indian Evidence Act.
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187. This rule / provision would apply when the facts are "especially within the knowledge of the accused" and it would be impossible or at any rate disproportionately difficult for the prosecution to establish such facts which are "especially within the knowledge of the accused". It has been held by Hon'ble Apex Court in case titled "Murlidhar Vs. State of Rajasthan" reported as "AIR 2005 SC 2345" and in another case titled "Santosh Kumar Singh Vs. State"
reported as (2010) 9 SCC 747"; that prosecution is not required to eliminate all possible defences or circumstances which may exonerate the accused. If certain facts are in the knowledge of accused, then he has to prove them. Of course, prosecution has to prove prima facie case in the first instance.
188. Prosecution through the deposition of PW29 Ashok Kumar Garg & PW30 Renu Garg, brother and wife C.C.No: 33 / 2011 Page No.103 of 181 Judgement in the matter of:-
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respectively of accused D.K.Garg has brought on record that both these persons were partners of M/s Shiva Cables. Prosecution through deposition of these two witnesses coupled with deposition of PW22 Vijay Kumar Kokiloo, has proved on record that an account in the name of M/s Shiva Cables bearing account no. 158 was opened with Jammu & Kashmir Bank Ltd., Bhatinda (Punjab), which was being operated upon by brother and wife of accused D.K.Garg. It has also been proved on record by virtue of account opening form Ex. PW22/C that this account was opened in the name of M/s Shiva Cables which was introduced by accused D.K.Garg himself.
189. PW29 further deposed that the cheque Ex. PW17/A of the claim amount from NIC in favour of M/s Shiva Cables was handed over to him by accused D.K.Garg which he had deposited in this bank account vide pay in slip Ex. PW22/D. C.C.No: 33 / 2011 Page No.104 of 181 Judgement in the matter of:-
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190. PW29 on being cross examined on behalf of the accused on which Ld. Defence Counsel has relied upon, had stated that the cheque was received from NIC, with respect to a claim lodged by their firm with NIC.
191. It is thus apparent from deposition of PW22, PW29 & PW30 that accused D.K.Garg himself had introduced the account of M/s Shiva Cables which was opened by his wife and brother, wherein the proceeds of the claim had landed, as is depicted from statement of account Ex. PW22/E. Further from deposition of PW29, it is evident that he claimed that this cheque was on the basis of a claim lodged by their firm with Insurance Company. Meaning thereby that the factum of existence of M/s Shiva Cables, if any, was within the specific knowledge of accused D.K.Garg, who had got the account of this firm opened being partnership firm of his brother and wife.
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192. Thus, by virtue of provisions of Section 106 of Indian Evidence Act, this fact being in "exclusive knowledge" of accused should have been established on record by him, as prosecution has discharged the initial onus by virtue of Vigilance report Ex. PW4/2 coupled with deposition of PW5 A.K.Seth, PW7 A.L.Gambhir & PW9 A.K.Tiwari that no firm by the name of M/s Shiva Cables was in existence at the given address and the phone number mentioned, on the letter head of M/s Shiva Cables, belong to some other firm i.e. M/s Lata Steel India.
193. Apart from above, it is apparent that the address of M/s Shiva Cables mentioned in the account opening form Ex. PW22/C is B/2, Industrial Area, Bhatinda. Had M/s Shiva Cables been in existence and operational from B175, Shivalik, Malviya Nagar, New Delhi, that is the address mentioned on the documents submitted with NIC in support of C.C.No: 33 / 2011 Page No.106 of 181 Judgement in the matter of:-
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claim, the same should have been mentioned in the account opening form with the bank, while opening the bank account in the name of the insured firm, where cheque of the claim amount was deposited. But that was not to be.
194. Even otherwise, it is highly improbable that a company or firm having its office in Delhi will have its bank account in Bhatinda.
195. In view of these facts and circumstances, it is established on record that M/s Shiva Cable was also not in existence at the given address depicted on the documents which forms part of the claim file Ex. PW5/2 on the basis of which the claim was passed by accused G.C.Gupta.
196. The resultant inference is that neither any goods were sold by alleged insured / consignor M/s Shiva Cables to M/s Super Traders, the alleged consignee, nor the C.C.No: 33 / 2011 Page No.107 of 181 Judgement in the matter of:-
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same were transported through M/s Super Road Transport Corporation vide G.R. No. 18734, copy of which is Ex. PW8/A5. Meaning thereby that the invoice Ex. PW8/A4 at page no. 23 of claim file Ex. PW5/2 and G.R. Ex. PW8/A5 at page no. 22 of claim file Ex. PW5/2 are false and bogus documents. The present transaction of getting a marine insurance cover for a nonexisting consignment, allegedly sent through a nonexistent carrier, to a nonexistent consignee was a fraudulent transaction, carried with the intention to cheat NIC by getting a marine claim on the basis of false and forged documents.
197. Having held so and in the back drop of above, I shall consider the prosecution evidence which has come up on record vis a vis rival contentions advanced by Ld. Defence Counsels, as per the case of each accused. C.C.No: 33 / 2011 Page No.108 of 181
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Case qua accused D.K.GARG :
198. It is alleged by the prosecution that accused D.K.Garg was the proprietor of M/s Shiva Cables and he as such had got a marine insurance cover for a consignment allegedly sent to M/s Super Traders, Samana through M/s Super Road Transport Corporation. It is further the case of the prosecution that after lodging of loss intimation of the consignment to NIC, Sangrur, D.K.Garg through coaccused S.K.Chandel got his own firm M/s SBK Enterprises, of which he himself was the proprietor appointed as surveyor. It is further alleged that he thereafter furnished a false and bogus report as proprietor of M/s SBK Enterprises, on the basis of which he got the claim processed and approved through co accused G.C.Gupta and got the same released vide cheque Ex. PW17/F which he got deposited in the account of M/s Shiva Cables.
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199. Sh.R.K.Kohli, Ld. Defence Counsel for accused D.K.Garg had contended that no evidence whatsoever has been brought on record by the prosecution to prove that it was accused D.K.Garg, who was proprietor of M/s Shiva Cables. He further contended that prosecution has failed to prove that it was accused D.K.Garg, who as proprietor of M/s Shiva Cables has either obtained the marine policy, cover note of which is Ex. PW11/A1 and policy Ex. PW8/A17. He further contended that prosecution through their own witnesses i.e. PW29 Ashok Kumar and PW30 Renu Garg has brought on record that these two were the partners of M/s Shiva Cables.
200. I have considered these submissions advanced by Ld. Defence Counsel and have perused the prosecution evidence that has come on record.
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201. No documentary evidence which is admissible in evidence has been placed or proved on record by the prosecution, so as to establish that it was accused D.K.Garg, who is proprietor of M/s Shiva Cables.
202. Investigating Agency in its quest to connect accused D.K.Garg with M/s Shiva Cables, the insured, during the course of investigations had collected / taken specimen signatures of accused D.K.Garg, which were examined with the questioned signatures on the documents purportedly submitted for and on behalf of M/s Shiva Cables with NIC forming part of claim file Ex. PW5/2. However, no positive opinion was given by the handwriting expert PW31 Mohinder Singh in his report Ex. PW27/X2 & Ex. PW27/X5 so as to connect accused D.K.Garg with M/s Shiva Cables.
203. No doubt, the person who had taken the insurance cover for a fraudulent transaction and consignment C.C.No: 33 / 2011 Page No.111 of 181 Judgement in the matter of:-
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which was never meant to be sent, would generally not put his signatures on the papers submitted with the Insurance Company. Be that as it may.
204. The onus however remains on the prosecution to prove the alleged contention of theirs qua accused D.K.Garg.
205. Prosecution to bring home its contention that it was accused D.K.Garg who was Incharge of affairs of M/s Shiva Cables had examined PW29 & PW30.
206. PW29 Ashok Kumar and PW30 Renu Garg, being prosecution witnesses, claiming themselves to be partners of M/s Shiva Cables, had disclosed that they are brother and wife respectively of accused D.K.Garg. This deposition of their's during the course of trial, does not make accused D.K.Garg as proprietor of M/s Shiva Cables. Although the Investigating officer PW32 S.K.Kashyap during the course C.C.No: 33 / 2011 Page No.112 of 181 Judgement in the matter of:-
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of his deposition had claimed that D.K.Garg during investigations, did disclose that he was running the affairs of M/s Shiva Cables and his brother and wife were there, only for the name sake, however, that piece of evidence being disclosure, if any by accused D.K.Garg to CBI is not an admissible piece of evidence.
207. Meaning thereby, that on the basis of oral and documentary evidence brought on record, prosecution could not establish accused D.K.Garg to be the Proprietor of M/s Shiva Cables as alleged in the charge sheet.
208. This however does not absolve accused D.K.Garg, as it is to be seen from the available evidence on record as to whether he in complicity with other coaccused had got wrongful pecuniary advantage by cheating NIC on the basis of false and forged documents.
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209. The factum of issuance of a cover note Ex. PW11/A1 by NIC is established fact which has been proved on record through deposition of PW11 D.P.Rana. This witness had deposed that although there was no written proposal from the party, but V.P.Pandhi, Assistant Manager of NIC had given particulars for issuance of this cover note to him, on a piece of paper Ex. PW11/A. On the basis of which, PW19 Sneh Lata Arora had calculated the premium which was deposited and cover note Ex. PW11/A1 was issued.
210. This cover note was issued by National Insurance Company on 23.10.1998 in order to cover a consignment of shunt water capacitors to be transported from M/s Shiva Cables, Delhi to M/s Super Traders, Samana through M/s Super Road Transport Corporation. As has been held by me, hereinabove that neither the consignor nor consignee nor the transporter were in existence. Meaning thereby that this cover note was fraudulently got issued C.C.No: 33 / 2011 Page No.114 of 181 Judgement in the matter of:-
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from National Insurance Company with intention to cheat the Insurance Company.
211. It is also an established fact on record that vide intimation of loss to consignment Ex. PW8/A20, M/s SBK Enterprises was appointed as surveyor by accused S.K.Chandel of NIC Sangrur, as intimation of loss was furnished by the alleged consignee to said office.
212. It is the case of accused D.K.Garg that he has nothing to do with M/s SBK Enterprises, who was appointed as surveyor in this case.
213. Prosecution, however, has claimed that it was accused D.K.Garg, who was proprietor of M/s SBK Enterprises and he as such, had furnished the survey report Ex. PW12/DA copy of which is Ex. PW8/A10 dated 02.11.1998 and also its clarification Ex. PW11/DA dated 17.12.1998. It is also the case C.C.No: 33 / 2011 Page No.115 of 181 Judgement in the matter of:-
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of prosecution that this is a false report submitted by accused D.K.Garg with NIC with intention to induce NIC to pass, the marine claim in favour of M/s Shiva Cables, which eventually resulted.
214. Prosecution in order to prove that, it was accused D.K.Garg, who was proprietor of M/s SBK Enterprises had examined PW12 Sh.Ram Bilas Bansal, Dy. Manager, NIC. This witness during the course of his deposition had identified handwriting and signatures of S.K.Chandel on Ex. PW8/A20 vide which he had appointed M/s SBK Enterprises as surveyor in this case and also on the letter Ex. PW8/A21 whereby he had forwarded the loss intimation to DOXXIII, New Delhi and also informed about appointment of M/s SBK Enterprises as surveyor. On these two letters accused S.K.Chandel has not disputed his endorsement as well as signatures, rather he relied on the same stating that he after getting loss intimation, did, what was expected of him in discharge of his official duties. C.C.No: 33 / 2011 Page No.116 of 181
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To which I shall advert to while considering the case qua accused S.K.Chandel.
215. PW12 Sh. Ram Bilas Bansal had further identified signatures of S.K.Chandel on letter Ex. PW12/D1 sent to RO, Chandigarh furnishing list of surveyor's with the Sangrur Office which is Ex. PW12/A coupled with copy of a letter / certificate from United India Insurance Ex. PW12/B. PW12 further identified signatures of S.K.Chandel at point 'B' on Ex. PW12/A and at point 'A' on Ex. PW12/B.
216. This deposition of PW12 is corroborated by another witness of the prosecution i.e. PW25 Sh. S.L.Rikhi. Both these witnesses had identified the signatures and handwriting of S.K.Chandel on the basis of their having worked with him and seeing him writing and signing and regularly receiving correspondence from him. C.C.No: 33 / 2011 Page No.117 of 181
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217. Sh.R.K.Kohli, Ld. Defence Counsel had contended that in Ex. PW12/A, the list of surveyors, name of D.K.Garg is mentioned at Sl. No. 11, as an independent entity and M/s SBK Enterprises is mentioned at Sl. No. 12 in which it has not been stated that the said firm is owned or is Proprietorship firm of accused D.K.Garg. He further contended that Ex. PW12/B cannot be relied upon, as the same has not been proved on record, as writer of the said document is not produced by the prosecution in the witness box.
218. I do find some force in this contention of Ld. Defence Counsel, which was also seconded by Sh. H.S.Sharma, Ld. Defence Counsel for accused S.K.Chandel, that writer of Ex. PW12/B was not examined by the prosecution, so the same cannot be relied upon. However, this contention does not wash away the case of prosecution. As to prove the said letter / certificate, this is not the only mode prescribed in Indian Evidence Act.
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219. Indian Evidence Act 1872, delineates the manner in which, it can be proved that a document bears signatures and / or handwriting of a person by virtue of Section 67 coupled with Section 47.
220. It is pertinent to refer to these two sections which reads as under : Section 67 : Proof of signatures and handwriting of person alleged to have signed or written document produced - If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
Section 47 : Opinion as to handwriting, when relevant - When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. C.C.No: 33 / 2011 Page No.119 of 181
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Explanation : A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
221. Prosecution had examined PW12 Sh. Ram Bilas Bansal and PW25 Sh. S.L.Rikhi, both officers working with NIC. It is not disputed on behalf of the accused persons that these two witnesses have either not worked with accused S.K.Chandel or had not seen him writing and signing or were not regularly receiving correspondence bearing his handwriting. That being so, they were competent to identify handwriting and signatures of S.K.Chandel on Ex. PW12/A, Ex. PW12/B & Ex. PW12/D1.
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222. PW12 Ram Bilas Bansal had identified handwriting of S.K.Chandel on Ex. PW12/A as well as on Ex. PW12/B. It is apparent on perusal of Ex. PW12/A that S.K.Chandel against the entry of M/s SBK Enterprises, had categorically endorsed that "the same has been empanelled on the basis of letter dated 21.05.1998 of United India Insurance".
The letter dated 21.05.1998 of United India Insurance, about which accused S.K.Chandel had made endorsement on Ex. PW12/A, is Ex. PW12/B on which also his handwriting at point 'A' is identified by PW12 Sh. Ram Bilas Bansal.
223. On composite perusal of Ex. PW12/A & Ex. PW12/B it is clear that prosecution has been able to establish that inclusion of M/s SBK Enterprises on the panel of surveyors was done on the basis of letter / certificate of United India Insurance. Thus, this fact was in the knowledge of accused S.K.Chandel, as it was he only who made this endorsement on C.C.No: 33 / 2011 Page No.121 of 181 Judgement in the matter of:-
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Ex. PW12/A and had also forwarded this list to Chandigarh office of NIC vide his letter Ex. PW12/D1.
224. Further accused during the course of cross examination of PW12 had confronted him with another letter dated 20.12.2002 Ex. PW12/D2 of Sh.A.K.Rawal, Divisional Manager. This letter was taken into possession by Investigating officer from Sh. A.K.Seth vide seizure memo Ex. PW33/H. This letter Ex. PW12/D2 clinches and fortifies the issue, as vide this letter, it was clearly revealed that inclusion of M/s SBK Enterprises was done on the basis of certificate issued by United India Insurance dated 21.05.1998. The said certificate of 21.05.1998 is Ex. PW12/B.
225. In view of this deposition which has come up on record, I do not find any merits in the contention of Ld. Defence Counsel that this document has not been properly proved on record.
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226. On perusal of Ex. PW12/B, it is evident that it has been certified that D.K.Garg is Proprietor of M/s SBK Enterprises and the address given in the said certificate of M/s SBK Enterprises is 491, Urban Estate, Bhatinda. It is further apparent on perusal of list of surveyors Ex. PW12/A which is not in dispute, that the address of D.K.Garg, who is also on the panel of surveyor's in his individual capacity, is also mentioned as 491, Urban Estate, Bhatinda. In view thereof, prosecution has been able to establish that it was accused D.K.Garg only, who was proprietor of M/s SBK Enterprises, the firm appointed as surveyor, by accused S.K.Chandel on the loss intimation letter Ex. PW8/A20.
227. It is an admitted position on record that M/s SBK Enterprises had submitted the survey report Ex. PW12/DA. Copy of which is Ex. PW8/A15 and its clarification dated 17.12.1998 Ex. PW11/DA is at page no. 26 of file Ex. PW5/2. It is also an admitted position on record that C.C.No: 33 / 2011 Page No.123 of 181 Judgement in the matter of:-
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a receipt dated 02.11.1998 was issued by M/s SBK Enterprises claiming to have received the survey fees, from M/s Super Traders, Samana, which is at page no. 32 of claim file Ex. PW5/2.
228. Prosecution had examined PW32 S.K.Kashyap, the initial IO. He deposed that during the course of investigations, he had collected specimen signatures of D.K.Garg Ex. PW27/H in presence of independent witness namely Uma Shankar. The factum of collecting specimen signatures of accused D.K.Garg has not been disputed, as no suggestion whatsoever was given on his behalf to this witness to controvert this fact. No suggestion was given that these signatures were obtained by IO forcibly or under any threat or duress from accused D.K.Garg.
229. Prosecution through deposition of PW33 R.P.Kaushal had brought on record that the questioned C.C.No: 33 / 2011 Page No.124 of 181 Judgement in the matter of:-
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signatures as well as the specimen signatures of the accused persons were sent to GEQD, Shimla for the examination and expert opinion vide letters Ex. PW31/A1 to Ex. PW31/A3. Further through deposition of PW31 Sh. Mohinder Singh, the handwriting expert coupled with deposition of PW33, prosecution has been able to establish on record that these questioned signatures were examined by the expert using scientific aid and assistance, who thereafter submitted his reports Ex. PW27/X2 & Ex. PW27/X5.
230. It is apparent on perusal of the expert report Ex. PW27/X2 that signatures on the receipt dated 02.11.1998 issued by M/s SBK Enterprises claiming to have received the survey fees which is at page no. 32 of file Ex. PW5/2 as well as the clarifications Ex. PW11/DA dated 17.12.1998, to its earlier report dated 02.11.1998 Ex. PW12/DA, bears signatures of accused D.K.Garg for and on behalf of M/s SBK Enterprises. C.C.No: 33 / 2011 Page No.125 of 181
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231. Sh.R.K.Kohli, Advocate, during the course of arguments had raised objection that the specimen signatures of the accused could not have been taken as per Law and the prescribed procedure, as no permission from the Court was taken by the IO, therefore, the report received from CFSL should not be relied upon. Ld.Defence Counsel in support of his contention has relied upon the law laid down in case titled "Sapan Haldar & Ors. Vs. State", decided by Hon'ble High Court of Delhi bearing Criminal Appeal no. 804/01 on 25.05.2012.
232. I have considered the arguments advanced on behalf of the accused and have perused the precedent relied upon by Ld.Defence Counsel. In my considered opinion, the same does not apply to the facts of the present case in view of the judgement of Hon'ble Apex Court in case titled "Rabindra Kumar Pal @ Dara Singh Vs. Republic of India" , reported as 2011 (2) SCC 490.
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233. I do not find any merits in this contention of Ld. Defence Counsel as merely by taking the specimen signatures of an accused person during the course of investigations, the Investigating officer can by no stretch of imagination be held as asking him to stand as a witness against himself. Scientifically it is established that the impression of finger prints and handwriting of any individual does have such intrinsic qualities which no one can willfully change. The use of specimen signatures / handwriting of a person becomes important for any investigating agency to have it compared with the questioned signatures / handwriting just to corroborate the line of investigation which the investigating agency otherwise is carrying forward to unearth the truth in the case in hand.
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234. The precedents relied upon by Ld. Defence Counsel in support of his contentions does not come to his rescue in view of the law laid down by Hon'ble Apex Court in Rabindra Kumar Pal @ Dara Singh Vs. Republic of India, reported as 2011 (2) SCC 490. This judgment delivered by Hon'ble Apex Court is the latest judgment on this aspect whereas the precedent relied upon by Ld. Defence Counsel in Sukhbir's Case (Supra) is of the year 1995.
235. In the other judgment relied upon by Ld. Defence Counsel of Hon'ble High Court of Delhi, the law laid down by Hon'ble Apex Court in Dara Singh's Case (Supra) was not considered as the said judgment was not quoted before Hon'ble High Court, in Sapan Haldar's Case (supra).
236. In the present case, it is apparent from the prosecution evidence led on record more particularly in view of C.C.No: 33 / 2011 Page No.128 of 181 Judgement in the matter of:-
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the deposition of PW32, that specimen signatures and handwriting of accused D.K.Garg were obtained by the Investigating officer which accused had voluntarily given. There was no suggestion from the accused to PW32 S.K.Kashyap, that he was forced by him being Investigating Officer to give specimen handwriting and signatures. This leaves me with no ground to doubt that specimen signatures of accused D.K.Garg were obtained from him under any pressure, threat or duress.
237. In view thereof, I do not find any merits in this contention of Ld.Defence Counsel that Expert Opinion Ex.PW.27/X2 cannot be relied upon.
238. Prosecution thus has been able to establish on the basis of expert report Ex. PW.27/X2, that the signatures on the clarificatory report dated 17.12.1998 Ex.PW.11/DA and the receipt of survey fees dated 02.12.1998 C.C.No: 33 / 2011 Page No.129 of 181 Judgement in the matter of:-
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which are at Page Nos. 26 and 32 respectively of the claim file Ex. PW5/2 are of accused D.K.Garg. Even otherwise, on bare perusal of specimen signatures of D.K.Garg and comparing it with the signatures on the documents in claim file Ex.PW.5/2, the similarities are so apparent which leads to the only inference that it was him, who had signed on the clarificatory report dated 17.12.1998 Ex.PW.11/DA and the receipt of survey fees dated 02.12.1998 which are at Page Nos. 26 and 32 respectively of the claim file Ex. PW5/2.
239. Having held that it was accused D.K.Garg, who is proprietor of M/s SBK Enterprises and it was him who had given the survey report dated 02.11.1998 Ex. PW12/DA copy of which is Ex. PW8/A15, it is to be seen as to whether the same is a genuine report or forged one, as claimed by the prosecution.
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240. As has been held by me hereinabove that neither the consignor nor consignee, nor the transporter were in existence. Therefore, no consignment whatsoever was transported. That being the position there was no question of any loss to the consignment. That leads to the only inference that the survey report given by accused D.K.Garg as proprietor of M/s SBK Enterprises Ex. PW12/DA is a false and forged report given by him, so as to induce NIC to pass a claim in favour of M/s Shiva Cables.
241. I am fortified to arrive at this conclusion as this survey report dated 02.11.1998 does mention policy number to be 360900/4500402. Admittedly, as on 02.11.1998 no policy was in existence. It is apparent on the basis of deposition of PW11 and perusal of the marine policy Ex. PW8/A17 that it was issued only on 09.11.1998. Meaning thereby that prior to 09.11.1998 there being no policy, its number by no stretch of imagination could have been in the C.C.No: 33 / 2011 Page No.131 of 181 Judgement in the matter of:-
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notice of either the insured or the surveyor or any one else. Further the survey report dated 02.11.1998 mentions that the surveyor had visited the consignee and had also collected damage certificate Ex. PW32/C dated 02.11.1998 from the transporter. These averments made in the survey report are palpably false as neither the consignee nor the transporter were in existence.
242. Even if the case of the surveyor M/s SBK Enterprises of which accused D.K.Garg is the proprietor, is accepted as per the documents on record, the same seems to be highly improbable.
243. The record Ex. PW5/2 reveals that the alleged consignee i.e. M/s Super Traders as per the address on record exists in Samana District, Patiala. The said consignee vide letter Ex. PW8/A20 had reported the loss on 02.11.1998 to the NIC office which is located in another District of Punjab i.e. C.C.No: 33 / 2011 Page No.132 of 181 Judgement in the matter of:-
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Sangrur. Further the said NIC office, Sangrur deputes a surveyor, who has his office in another District of Punjab i.e. Ludhiana and in Sirsa (Haryana). It seems highly improbable as to how the said surveyor would have immediately got the intimation of his appointment on 02.11.1998 itself. How, the surveyor as per the survey report visited the address of consignee at Samana to conduct survey, which as per the report he did on that very day and had also on same date itself, collected damage certificate from the transporter, who is located in Ghaziabad. It appears highly improbable and flimsy that thereafter surveyor had completed the report Ex. PW12/DA on 02.11.1998 itself.
244. It became possible for surveyor to do so, as he had prepared a false report sitting in his office as it has already been held by me that there was neither any consignee nor any transporter in existence which would have required to be visited by the surveyor to prepare his report. C.C.No: 33 / 2011 Page No.133 of 181
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245. All these facts leads to the only inference that the said report was falsely and was wrongly prepared by accused D.K.Garg as proprietor of M/s SBK Enterprises just to support the case of M/s Shiva Cables, to get the claim approved by inducing NIC to believe on this report of his.
246. The reasons with accused D.K.Garg to prepare and submit false report with NIC are not far to seek. His nexus with M/s Shiva Cables, the insured is established on record by prosecution through deposition of PW29 Ashok Garg, PW30 Smt. Renu Garg and PW22 Sh. Vijay Kumar Kokiloo coupled with the account opening form of Account no. 158 of M/s Shiva Cables which they had with J & K Bank, Bhatinda. It is apparent therefrom and as has been held by me that partners of M/s Shiva Cables were brother and wife of accused D.K.Garg and he himself was instrumental in getting this bank account in the name of firm opened by being the introducer. It C.C.No: 33 / 2011 Page No.134 of 181 Judgement in the matter of:-
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is this very account wherein as per statement of account Ex. PW22/E, the claim proceeds were credited against the claim cheque Ex. PW17/A of NIC, issued in favour of M/s Shiva Cables.
247. Accused D.K.Garg being Proprietor of M/s SBK Enterprises the surveyor, cannot be heard saying that he was not aware of M/s Shiva Cables to be the insured in this case. That contention would be too presumptuous to be accepted.
248. Had he no nexus, complicity or interest, then owing to professional ethics and morals, he could have reported back to the Insurance Company, with a request to appoint some other surveyor. But that was not to be, for obvious reasons.
249. Accused D.K.Garg being the main conspirator, got himself appointed as surveyor and gave false report dated 02.11.1998 Ex. PW12/DA with intention to cheat National C.C.No: 33 / 2011 Page No.135 of 181 Judgement in the matter of:-
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Insurance Company by inducing it to process and pass the marine claim in favour of M/s Shiva Cables. In which he eventually succeeded thereby causing wrongful loss to NIC.
250. The empanelled tracer / surveyor of the Insurance Company is under a solemn duty to submit a true and actual report to the Insurance Company knowing fully well that it is on the basis of his report that the Insurance Company shall act for processing the claim lodged with it and thus this report can be considered as a valuable security.
251. In view of above, the argument raised by Ld.Defence Counsel Sh.R.K.Kohli, Advocate on behalf of accused D.K.Garg, that the report of tracer / surveyor is not binding and Insurance Company need not rely on the same for settling a claim, to my mind is devoid of any logic and merits and thus it cannot be accepted.
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252. If such a proposition is accepted then the same shall lead to hazardous results. The empanelled surveyor / tracer would start giving reports sitting in the confines and comfort of their respective offices and claiming their fees without lending any concrete support to the Insurance Company for disposal of claims lodged with it. The tracer / surveyor are supposed to act in a bonafide manner while performing their assigned roles.
253. This has led me to the next contention urged by Sh.R.K.Kohli, Advocate, Ld.Defence Counsel on behalf of accused D.K.Garg on Legal aspect. He contended that if the report Ex. PW12/DA dated 02.11.1998 is considered to have been given by his client D.K.Garg, then the same does not fall within the ambit of the definition "False document" as defined in Section 464 of I.P.C., so no case for offence under section 468 IPC is made out against him with which he has been charged.
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254. For the purposes of appreciating this contention of Ld.Defence Counsel for accused D.K.Garg, it is pertinent to peruse section 468, 463 & 464 of Indian Penal Code which are reproduced as under : SECTION 468 I.P.C. : Forgery for purpose of cheating Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
SECTION 463 I.P.C. : Forgery Whoever commits forgery, makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
SECTION - 464 I.P.C : Making a false document A person is said to make a false document or false electronic record C.C.No: 33 / 2011 Page No.138 of 181 Judgement in the matter of:-
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First Who dishonestly or fraudulently
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of a document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or C.C.No: 33 / 2011 Page No.139 of 181 Judgement in the matter of:-
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Thirdly Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
255. Relying upon this definition of "Making false document", Sh.R.K.Kohli, Advocate, Ld.Defence Counsel had contended, that it was not the case of the prosecution that he made this document i.e. report Ex. PW12/DA dated 02.11.1998 with intention of causing it to be believed that this document was made by the authority of a person by whom or by whose authority accused / tracer knew that it was not made and therefore document i.e. survey / tracing report did not amount to forgery.
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256. It is true that on the face of it, document i.e. survey / tracing report is not made by the accused / surveyor with the intention of causing it to be believed that the he had made the document with or by the authority of some other person and as such, it appears that accused / surveyor have a strong case in his favour.
257. However, there is another angle to this argument and according to the learned Public Prosecutor, Illustration (h) of Section 464 and Explanation 1 coupled with Illustration (e) thereof, squarely and directly bring the case within the ambit of Section 463 & 464 of Indian Penal Code.
258. I have considered the rival submissions and have perused all the illustrations appended to Section 464 IPC.
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259. It is relevant to peruse illustration (h) and (e) as well as Explanation 1 appended to section 464 IPC, the same is delineated as under : Illustration (h) : "(h) A sells and conveys an estate to Z. A afterwards, in order to defraud Z of his estate, executes a conveyance of the same estate to B, dated six months earlier than the date of the conveyance to Z, intending it to be believed that he had conveyed the estate to B before he conveyed it to Z. A has committed forgery."
Explanation 1. A man's signature of his own name may amount to forgery.
Illustration (e) is as under : "(e) A draws a bill of exchange on himself in the name of B without B's authority, intending to discount it as a genuine bill with a banker and intending to take up the bill on its maturity. Here, as A draws the bill with intent to deceive the banker by leading him to suppose that he had security of B, and thereby to discount the bill, A is guilty of forgery."
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260. It is evident from Illustration (h) that "A" in order to defraud "Z" executed a conveyance of the same estate to "B" which was antidated by six months from the date of conveyance in favour of "Z" and this was done by "A" intending it to be believed that he had conveyed the estate to "B" before he conveyed it to "Z" and this has been held to be forgery, as intended by the Legislature.
261. From this Illustration, it is clear that a man can be said to have committed "forgery of document" even if he himself, is the author and signatory of the document. This Illustration does not require that he should sign a document making it to be believed that somebody else has signed the same or that he was authorized to sign the same on somebody else's behalf.
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262. Explanation 1 makes it further clear that the man's signature in his own name may amount to forgery and from Illustration (e) thereof, it is clear that writing a promissory note by "A" in the circumstances given in the Illustration is considered as an act of forgery under the first head of the definition given in section 464 of I.P.C.
263. From these two Illustrations (h) and (e) and Explanation 1, it is clear that legislature intended to cover such cases, under the offence of forgery whenever the person, who had created a document even though the document was made by himself, in his own name and signed in his own name. These two illustrations coupled with Explanation 1, therefore, make the scope of the definition "Making a false document" very wide.
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264. In view thereof, I do not find any merits in this argument of Ld.Defence Counsel, that the survey / tracing report does not fall under the definition of forgery. This contention of his is accordingly turned down.
265. Prosecution thus has been able to establish that accused D.K.Garg was the main conspirator and he in order to perform his assigned role in the conspiracy had forged the report dated 02.11.1998 Ex. PW12/DA which is in the Claim File Ex.PW.5/2, with intention to induce NIC to believe on the same.
266. This has brought me down to the next contention urged on behalf of this accused by Sh. R.K.Kohli, Advocate that it was not accused D.K.Garg, who had submitted the forged documents with Insurance Company knowing them to be forged, as genuine in order to cheat the C.C.No: 33 / 2011 Page No.145 of 181 Judgement in the matter of:-
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Insurance Company. He further contended that no pecuniary advantage was caused to accused D.K.Garg.
267. It is submitted by Ld. Defence Counsel relying upon the cross examination of PW29 Ashok Kumar that he being partner of M/s Shiva Cables had accepted that the said claim was credited in the account of their firm, on the basis of a claim lodged by them with NIC. Therefore, D.K.Garg cannot be fastened with any criminal liability in this regard.
268. I do not find any merits in this contention of Ld. Defence Counsel, in view of the fact that this very witness i.e. PW29 Ashok Kumar, who is brother of accused D.K.Garg during the course of his examination in chief has categorically stated that the cheque of the claim Ex. PW17/F was given to him, by accused D.K.Garg himself. This particular deposition of PW29 is not at all controverted on behalf of accused D.K.Garg as no suggestion whatsoever was given to this C.C.No: 33 / 2011 Page No.146 of 181 Judgement in the matter of:-
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witness during his cross examination. Further PW29 during the course of his examination in chief has stated that after deposit of the cheque of the claim amount Ex. PW17/F in their account, statement of which is Ex. PW22/E, he had withdrawn a sum of Rs.1,00,000/ vide a self cheque Ex. PW29/A which amount after withdrawal he had handed over to D.K.Garg. Prosecution through the deposition of other partner of this firm i.e. Renu Garg, who happens to be wife of accused D.K.Garg, examined as PW30, has been able to establish that she had also withdrawn a sum of Rs.88,000/ from this account vide cheque Ex. PW29/B and she also stated that after withdrawing this amount she probably had handed over the same to D.K.Garg.
269. Both these witnesses were not at all cross examined on this aspect on behalf of accused D.K.Garg, which leads me to the only inference that the benefit out of the claim amount which landed in this account by virtue of cheque Ex. C.C.No: 33 / 2011 Page No.147 of 181
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PW17/F of which there is a corresponding debit entry in the statement of account of NIC Ex. PW18/DX, went only and only to accused D.K.Garg.
270. This evidence on record clearly depicts that pecuniary advantage from this claim was caused to accused D.K.Garg. It has already been held by me hereinabove that accused D.K.Garg, as proprietor of M/s SBK Enterprises has wrongly and falsely given a survey report Ex. PW12/DA, copy of which is Ex. PW8/A15 to support the claim of M/s Shiva Cables and to induce NIC to process and pass the claim so as to cause wrongful loss to it, which eventually resulted.
271. Having regards to these facts and circumstances prosecution on the basis of deposition of its witnesses and its discussion as held hereinabove has been able to establish that : C.C.No: 33 / 2011 Page No.148 of 181 Judgement in the matter of:-
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272. It was accused D.K.Garg who facilitated the opening of a bank account of M/s Shiva Cables with J & K Bank, Bhatinda, by being the introducer to that account. It seems highly illogical for a firm allegedly operating from Delhi to have a bank account in Bhatinda, Punjab, which it seems was opened for the purposes of present transaction alone.
273. It has also been established that accused D.K.Garg in furtherance of the conspiracy got himself appointed through coaccused S.K.Chandel, the public servant, as surveyor in this case wherein he himself was the main beneficiary.
274. It has been further established that accused D.K.Garg had prepared a false and forged survey report Ex.
PW12/DA dated 02.11.1998 and used the same as genuine for cheating NIC by inducing it to pass a marine claim through C.C.No: 33 / 2011 Page No.149 of 181 Judgement in the matter of:-
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aid and assistance of coconspirator public servants and thus to cause pecuniary advantage to him and wrongful loss to NIC.
Case qua accused S.K.CHANDEL and G.C.GUPTA, the public servants :
275. Ld. Defence Counsels defending the public servants had vociferously contended that whatever they have done in the present claim, the same was in discharge of their official duties. Ld.Defence Counsels relying on the deposition of prosecution witnesses, more particularly, the cross examination conducted by them of PW5 ; PW7; PW9; PW11 PW12, PW19 & PW25 had contended that appointing a surveyor / tracer after receipt of intimation of loss of consignment is no illegality. It is further stated that it is not an illegality to receive any letter or Dak (post) by the accused C.C.No: 33 / 2011 Page No.150 of 181 Judgement in the matter of:-
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persons and taking action on it. It is further submitted that whatever they have done the same was on the basis of processing and recommendations of subordinate officers, on which they had no reasons to doubt. Sh.Ramesh Gupta, Ld.Senior Advocate & Sh. H.S.Sharma, Ld. Defence Counsels further contended that there is no evidence on record to impute that at any point of time, the public servants had met the claimant / insured, either before or during the processing of claim or after passing of it.
276. No doubt, the entire prosecution evidence does not anywhere states that the claimant / insured had met the accused persons. But that in itself is not and cannot be a ground to absolve the accused persons. As with respect to the offence of conspiracy, hardly one gets such direct evidence. It is from the act or actions and physical manifestation of the parties, that one has to infer as to whether they were acting in concert with a particular object to achieve. C.C.No: 33 / 2011 Page No.151 of 181
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277. The mode and manner in which the accused public servants had acted, in the present claim case has to be seen from the available documents in the file Ex. PW.5/2.
278. Before adverting to consider the rival contentions raised during the course of arguments, visavis the evidence which has come up on record, I deem it appropriate to consider a contention raised by Ld.Public Prosecutor relying upon "Claim Procedure Manual" of National Insurance Company. It is contended by him that as per the Claim Procedure Manual of National Insurance Company, intimation of loss can be given by the insured, consignor, consignee or their agents, by any mode, to the nearest office of the insurance company. He contended that the said "Dealing Office" is then required to allot a "claim number" after ascertaining the existence of policy. He contended that it is the said dealing office who then is required to arrange for survey and is C.C.No: 33 / 2011 Page No.152 of 181 Judgement in the matter of:-
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required to process the entire claim, upto final settlement, keeping the policy issuing office informed of all developments.
279. He contended that in the present case, this procedure was deviated from, as the processing of claim was done by DO23 of NIC despite the fact that claim intimation was reported to Sangrur Office. He contended that the Sangrur Office being the Dealing Office, should have processed the claim, under intimation to the Policy Issuing Office.
280. This contention of Ld.Public Prosecutor has been objected by Ld.Defence Counsels, stating that no such procedure was being adopted, nor there was any such practice.
Ld.Defence Counsels contended that it is the policy issuing office, who was having all the documents in its possession regarding the policy in question, therefore it was that office only, which was competent to process the claim, till final settlement.
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281. I have considered these submissions advanced & have also considered the deposition of prosecution witnesses ie. PW5, PW7, PW9, PW11 PW12, PW19 & PW25.
282. I do not find any force in this contention of Ld.Public Prosecutor. Firstly, on the ground that the Claim Procedure Manual on which he is relying to raise this contention, was not placed on record and proved during the course of trial. Nowhere, in the charge sheet, it is alleged by the prosecution that the claim should have been processed by the "Dealing Office" and not by the "Policy Issuing Office".
Secondly, this alleged discrepancy as raised by Ld.Public Prosecutor, is not supported by any of the prosecution witnesses, mentioned above, who have deposed about the procedure and the manner in which the same takes place, once, an intimation of loss is reported to NIC. Rather, PW5 A.K.Seth, during the course of his cross examination has C.C.No: 33 / 2011 Page No.154 of 181 Judgement in the matter of:-
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categorically stated that as per the practice and procedure, claim is required to be processed by "Policy Issuing Office".
283. Even otherwise this contention has been raised by Ld.Public Prosecutor for the first time during the course of arguments, which neither forms part of the charge sheet, nor is supported by any documentary or oral evidence, the same is accordingly rejected.
284. Having held so, I shall now deal with the other contentions qua the public servants on the basis of evidence on record.
285. It is the case of the prosecution that accused S.K.Chandel, Assistant Manager, posted at National Insurance Company, Sangrur had criminally misconducted himself and in furtherance of conspiracy had appointed M/s SBK C.C.No: 33 / 2011 Page No.155 of 181 Judgement in the matter of:-
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Enterprises, Proprietorship concern of D.K.Garg with the knowledge that he himself is the insured in this case.
286. To counter these contentions Sh.
H.S.Sharma, Ld. Defence Counsel had contended that no illegality was committed by S.K.Chandel by deputing a surveyor in this case on receipt of an intimation of loss to a consignment. He relying upon the cross examination conducted by him of PW5 A.K.Seth, PW7 A.L.Gambhir and PW9 A.K.Tiwari had contended that by appointing a surveyor S.K.Chandel had not committed any wrong.
287. I have considered the submissions of Ld. Defence Counsel and have also perused the deposition of prosecution witnesses as well as their cross examination conducted on behalf of the accused. Admittedly these prosecution witnesses had stated that as per the rules and procedure, the intimation of loss can be given by the insured C.C.No: 33 / 2011 Page No.156 of 181 Judgement in the matter of:-
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either at the policy issuing office or to the nearest office where loss has resulted. It is further evident from the cross examination of prosecution witnesses conducted by Ld. Defence Counsel that the office to whom intimation is given is required to appoint a surveyor and intimation thereof has to be given to the policy issuing office.
288. Thus, there was nothing illegal or improper in appointment of a surveyor by the office receiving loss intimation. However, for the purposes of ascertaining the action and conduct of accused S.K.Chandel, it is pertinent to peruse claim file Ex. PW5/2 coupled with deposition of PW12 Sh. Ram Bilas Bansal and PW25 Sh. S.L.Rikhi.
289. It is apparent on perusal of deposition of PW12 Sh. Ram Bilas Bansal coupled with loss intimation received at NIC, Sangrur vide letter dated 02.11.1998 Ex. PW8/A20 that the address of policy issuing office of Delhi, is C.C.No: 33 / 2011 Page No.157 of 181 Judgement in the matter of:-
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not mentioned thereon. Accused S.K.Chandel before appointing a surveyor on the basis of receipt of said intimation was required to verify the insurance particulars from the policy issuing office. S.K.Chandel vide his endorsement at point 'D' on the said letter did state that the intimation of appointment of surveyor alongwith this letter be forwarded to the concerned office, which he infact did vide his letter Ex. PW8/A21 which reveals his nexus with coaccused persons for following reasons :
290. Firstly, in the letter Ex. PW8/A20 the address of policy issuing office is not mentioned. That being the position where from accused S.K.Chandel had verified, that the same was issued from DO23, New Delhi, to whom he addressed his forwarding letter Ex. PW8/A21.
291. Secondly, in case he would have verified the policy, from policy issuing office, then it would have been C.C.No: 33 / 2011 Page No.158 of 181 Judgement in the matter of:-
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revealed to him that as on 02.11.1998 there was no such policy in existence, number of which is found mentioned on the letter Ex. PW8/A20 on which he had appointed the surveyor. This policy Ex. PW8/A17 was issued from DO23 only on 09.11.1998 whereas he had appointed surveyor on 02.11.1998 itself.
292. Thirdly, if S.K.Chandel had appointed surveyor on 02.11.1998 what stopped him from furnishing its intimation to the policy issuing office immediately thereafter but he deliberately sent the said intimation vide his letter dated 10.11.1998, that is only after the policy was issued on 09.11.1998.
293. To defend the argument advanced on behalf of prosecution, that S.K.Chandel in furtherance of his nexus with coaccused had appointed M/s SBK Enterprises of which D.K.Garg was the proprietor knowing fully well that he had C.C.No: 33 / 2011 Page No.159 of 181 Judgement in the matter of:-
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connection with M/s Shiva Cables, the insured, Ld. Defence Counsel had raised two fold contention.
294. First limb of the arguments advanced by Sh. H.S.Sharma, Ld. Defence Counsel was that S.K.Chandel had no knowledge that M/s SBK Enterprises was owned by D.K.Garg. I do not find any merits in this contention of Ld. Defence Counsel in view of my discussion hereinabove while dealing with case qua accused D.K.Garg. I have already considered the deposition of PW12, PW25 coupled with the letters Ex. PW12/D1, Ex. PW12/D2 as well as list of surveyor's Ex. PW12/A and certificate Ex. PW12/B. Considering the endorsement on Ex. PW12/A at point 'B' to be in the hands of accused S.K.Chandel and his own handwriting at point 'A' on Ex. PW12/B, it is evident that S.K.Chandel was aware that D.K.Garg was the proprietor of M/s SBK Enterprises.
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295. I do however, find some merits in the second limb of the arguments advanced by Ld. Defence Counsel, that at the time of appointing M/s SBK Enterprise S.K.Chandel had no occasion to know that D.K.Garg had any relation with the insured i.e. M/s Shiva Cables, as at that point of time apart from Ex. PW8/A20 accused S.K.Chandel did not have any other document with him.
296. From the deposition of prosecution witnesses as well as their cross examination on which Ld. Defence Counsel is relying upon, it is acceptable proposition that the party suffering loss of an insured consignment, can lodge the intimation of loss to the nearest office or to policy issuing office. In the present case, the alleged consignee had chosen to lodge this intimation to NIC, Sangrur office, where accused S.K.Chandel was posted.
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297. Had accused perused the letter of intimation properly and had he no nexus with coaccused persons, then from Ex. PW8/A20, he would have found, that the alleged consignee has mentioned about the damage to consignment at the place of receiving / destination which is the address of consignee i.e. Samana Distt. Patiala. There is no denying that NIC office is also situated in Distt. Patiala and that being the nearest office should have been the one, to be notified of the loss.
298. However, S.K.Chandel overlooked this fact and had shown overzealous approach in appointing the surveyor at that very point of time without taking into consideration that Sangrur office of NIC was neither the policy issuing office nor the nearest office to the alleged damage to consignment. Thus, as per the arguments of defence itself that being not the nearest office had no jurisdiction to entertain the letter Ex. PW8/A20.
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299. This fact in itself points finger towards the nexus that accused S.K.Chandel had in appointing M/s SBK Enterprises as Surveyor in this case.
300. Apart from above, S.K.Chandel had deliberately overlooked the fact that the alleged damage intimation to the consignment is stated to have taken place in Samana Distt. Patiala, he however, had appointed M/s SBK Enterprises who as per their report Ex. PW12/DA were having office in another Distt. i.e. Ludhiana in Punjab & Sirsa (Haryana). Further how the intimation was given to the surveyor of their appointment on that very day raises another pointer which depicts nexus between S.K.Chandel and co accused, more particularly when surveyor had conducted the survey on that very day and also collected 'damage certificate' Ex. PW32/C from transporter also on 02.11.1998 itself. C.C.No: 33 / 2011 Page No.163 of 181
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301. In view of above, the contention of Ld. Defence Counsel that appointment of M/s SBK Enterprises was chance appointment and not intentional / chosen one, on the part of accused S.K.Chandel is turned down.
302. Complicity and nexus of accused S.K.Chandel in appointing M/s SBK Enterprises is further evident from his actions and conduct of appointing a surveyor without verifying from the policy issuing office, the fact as to whether policy number, which is mentioned on the letter on which he is appointing the surveyor, is in existence or not. Had he done so, he would have come to know that no such policy existed on 02.11.1998. But he choose not to do the same, for obvious reasons.
303. Further the record reveals that surveyor had submitted copy of his report Ex. PW8/A15 to him, on which C.C.No: 33 / 2011 Page No.164 of 181 Judgement in the matter of:-
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S.K.Chandel had made his endorsement at point 'A' on 10.11.1998. At that time also, on perusal of the surveyor report dated 02.11.1998, S.K.Chandel would have known that the policy number which has been mentioned by the surveyor was not in existence on the date, when surveyor had conducted his survey and had submitted the report.
304. So far as accused G.C.Gupta is concerned it is apparent on perusal of deposition of PW11 D.P.Rana and PW19 Sneh Lata Arora coupled with claim form Ex. PW8/A1 and claim note Ex. PW8/A that the same were directly received by G.C.Gupta. Further G.C.Gupta had handed them over to Sneh Lata with directions to process the claim note. PW19 categorically deposed that she has processed the claim only at instance of G.C.Gupta, who had given rough notes to her. On being cross examined PW19 stated that G.C.Gupta had specifically told her, that he had seen all the papers and directed her to prepare the same, which she did. It is apparent C.C.No: 33 / 2011 Page No.165 of 181 Judgement in the matter of:-
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that accused G.C.Gupta was in a hurry to pass the claim which he did vide his endorsement at point 'C' on Ex. PW8/A.
305. Had he been vigilant he would have easily found that all the documents submitted for and on behalf of M/s Shiva Cables are of a date prior to 09.11.1998 i.e. the date on which policy was issued, however, all these documents including the survey report as well as the intimation of loss Ex. PW8/A20 bears the policy number on them.
306. Had G.C.Gupta been vigilant, then we would have noticed that the claim form Ex. PW8/A1 which he had directly received, for and on behalf of M/s Shiva Cables, has salvage value mentioned thereon. It is apparent on perusal of this form that the same is dated 04.11.1998. Whereas the survey report Ex. PW12/DA dated 02.11.1998 copy of which is Ex. PW8/A15 was forwarded to DO23 by S.K.Chandel only on 10.11.1998. Meaning thereby, that the said survey report of C.C.No: 33 / 2011 Page No.166 of 181 Judgement in the matter of:-
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surveyor, wherein he had given the salvage value could not have been known to the insured or for that matter even to the insurer before 10.11.1998. Had there been no nexus between accused G.C.Gupta and other coaccused then he must not have overlooked this aspect. But he did that for obvious reasons.
307. Apart from the above, acts of commission and omission on the part of public servants, it is apparent that all correspondence right from the proposal of issuance of marine policy that too oral, intimation of loss of consignment, submission of claim form and other records which though in ordinary course should have been received by the Insurance company in its office, from where the same should have been put up before the accused persons, who were the senior officers. However, evidence on record reveals that all these correspondence were directly received by accused S.K.Chandel in his office at NIC, Sangrur and G.C.Gupta in his office at NIC, Delhi.
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308. No doubt PW5, PW7 & PW9 during the course of their cross examination had admitted that there is no irregularity in directly receiving a dak by Incharge / Senior officer heading the branch. But this process should have been an exception. In the present case all these correspondence directly landed in the hands of accused public servants, who then had given definite instructions to their subordinate officers for processing them. This leads to establish an important link between the accused public servants and their coconspirators i.e. private person.
309. Apart from above accused G.C.Gupta, who in the present case had appointed a recovery agent who reported to the Insurance Company that no recovery could be affected due to nonavailability of transporter / carrier, would have known that the claim in this case has been fraudulently obtained and would have initiated some action against insured. C.C.No: 33 / 2011 Page No.168 of 181
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310. But he failed to do so which speaks volume about his complicity with the coaccused.
311. As responsible officers of National Insurance Company, it was expected of them being obligatory on their part, to have acted in the best interest of the company. But that was not to be. They not only obviated what basic standard of care and caution they were expected to adopt while performing their official duties. Rather, they facilitated their coconspirators to cheat the insurance company by causing wrongful loss to it.
312. Had there been no involvement of these accused public servants, then the "rule of prudence" demand that they should have scrutinized the documents / letters sought to be placed on record in support of the claim by the C.C.No: 33 / 2011 Page No.169 of 181 Judgement in the matter of:-
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claimant, which would have saved National Insurance Company from the wrongful loss.
313. But that was not to be.
314. This has brought me down to the next contention urged on behalf of accused public servants by Ld.Defence Counsels, that the investigating agency had been unfair and adopted "Pick and Choose Policy" to falsely implicate accused G.C.Gupta and S.K.Chandel and exonerating other similarly situated officers.
315. Need of fair, honest, efficient and thorough investigations is the single most important factor which directly determines the fulfillment of the object for which various provisions of P.C.Act were brought on the Statute Book. Investigations lays the foundation on which arch of trial is erected. An important link, if missed by the C.C.No: 33 / 2011 Page No.170 of 181 Judgement in the matter of:-
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investigating agency and if detected late, leads to crumbling of this arch. Therefore, the investigating agency while performing its duty, needs to be vigilant so as to collect all material and relevant evidence linked with the case.
316. An import link, if missed, could lead to hazardous results as time and resources spent on trial becomes irretrievable. Whether such evidence or link did not exist or intentionally skipped by the investigating agency however is required to be looked into. For that, I have considered the entire prosecution evidence, more particularly the deposition of three officers of the vigilance team of NIC and the report which formed the basis of complaint filed with CBI by PW K.Mahapatra. I have also considered the deposition of both the Investigating officers. There was no evidence against the other officers of NIC, who as per Ld.Defence Counsels for accused public servants, have performed similar roles. C.C.No: 33 / 2011 Page No.171 of 181
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317. From the evidence which has come up on record as discussed hereinabove, prosecution has been able to establish nexus between the accused public servants only and their coconspirator private persons. I do not see from material on record that the investigating agency had intentionally skipped evidence against other officers of NIC. Therefore, this contention of Ld.Defence Counsels that investigating agency had conducted the investigations in an unfair manner adopting "Pick and chose Policy" is turned down.
318. Sh.C.L.Gupta, Advocate, Ld.Defence Counsel relying upon the defence witness examined by them ie. DW3 Om Prakash, had contended that even the investigating agency during house search of accused G.C.Gupta did not find anything incriminating. He contended that the C.C.No: 33 / 2011 Page No.172 of 181 Judgement in the matter of:-
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documents taken into possession during his house search were returned to the accused. Ld.Defence Counsel further augmented this contention of his, that accused G.C.Gupta has not criminally misconducted himself, by relying upon the deposition of other defence witness examined by them viz. DW2 A.K.Goel, to prove that his suspension order was revoked and he has been reinstated.
319. I have considered these contentions of Ld.Defence Counsel and have perused the defence evidence led on record. Merely because during house search of accused G.C.Gupta, investigating agency did not find documents worthrelying to prove its case, does not by any way rules out the importance of the documentary evidence which has been relied upon and proved by the prosecution against accused. Further, merely because his department has revoked the suspension and reinstated the accused does not exonerates the accused from the criminal liability, if C.C.No: 33 / 2011 Page No.173 of 181 Judgement in the matter of:-
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established on the basis of settled principles of adjudication of Criminal Justice System.
320. In view thereof, I do not find any merits in this contention of Ld. Defence Counsel to exonerate accused G.C.Gupta on the basis of deposition of these two defence witnesses examined by them. The same is accordingly turned down.
321. Last contention urged on behalf of the accused public servants, was that their actions and inactions does not constitute the offence under Prevention of Corruption Act as the same at best, can amount to misconduct. It is contended that this misconduct, by no stretch of imagination, can be termed as "criminal".
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322. The word "misconduct" has been defined in Black's Law Dictionary, which reads as under: "The transgression of some established rule of action, dereliction from duty, unlawful behaviour, improper or wrong behaviour".
323. The term "misconduct" implies wrong intention & not a mere error of judgment. The word misconduct is a relative term, & has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or Statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action.
324. Section 13(1) (d) of the Prevention of Corruption Act, does not make any negligence or a plain and C.C.No: 33 / 2011 Page No.175 of 181 Judgement in the matter of:-
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simple misconduct on the part of any public servant, a punishable offence. Hon'ble Apex Court in a catena of judgement while interpreting the provisions of this Act has laid down that a blatant carelessness or gross negligence on the part of any public servant, does not ipsofacto, comes within the domain of this Section. The alleged misconduct on the part of public servant has to be actuated with criminal intent. The abuse of his position as a public servant in order to come within the mischief of the section must necessarily be dishonest intention on the part of said officer qua the alleged act.
325. The burden to prove affirmatively that accused by abusing his official position had obtained any pecuniary advantage either for himself or for any other person, lies on the prosecution. The prosecution on the basis of evidence led by it on record, has to satisfy the principal that all inculpatory facts, established on record must be inconsistent with the innocence of the accused and C.C.No: 33 / 2011 Page No.176 of 181 Judgement in the matter of:-
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incapable of explanation of any other hypothesis than that of his guilt.
326. In the backdrop of above, the analysis of evidence adduced by the prosecution during the course of trial, and observed by me hereinabove, in my considered opinion has led to an unerring certainty that accused G.C.Gupta and S.K.Chandel, acting inconcert, with each other being public servants, had abused their official position as such and facilitated coaccused D.K.Garg, Proprietor of M/s SBK Enterprises, the surveyor, to get wrongful pecuniary advantage in favour of M/s Shiva Cables and through this firm to D.K.Garg, by passing a claim on the basis of false and forged documents, thereby causing wrongful loss to NIC.
327. These actions and omissions of theirs, is nothing short of "criminal misconduct" as the same is laden with a dishonest intention, with which they had acted while C.C.No: 33 / 2011 Page No.177 of 181 Judgement in the matter of:-
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Dated : 16.10.2014.
dealing with the Claim file Ex.PW.5/2 and passing and releasing a claim amounting to Rs.2,01,359/ in favor of M/s Shiva Cables. Their actions have clearly transgressed plain and simple misconduct and entered in the contours of "criminal misconduct".
328. Consequently, from the material placed and proved on record by the prosecution, it is established that there was prior meeting of minds amongst all the accused persons, who acting inconcert had hatched a conspiracy, the object of which was to obtain a Marine Claim in favor of M/s Shiva Cables, on the basis of false and forged documents. Prosecution has been able to establish on record that all the accused had performed their assigned roles of commissions and omissions, in the process of achieving the object of conspiracy. Had there been no prior meeting of minds, then the accused persons would not have conducted themselves, the way they have, as held by me hereinabove.
C.C.No: 33 / 2011 Page No.178 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
329. In view thereof, I do not find any merits in the contentions advanced by Ld.Counsels for the accused persons that the material on record is not sufficient to infer that there was no meeting of mind amongst the accused persons to carry out any illegal design.
330. The cumulative effect of the facts established on record by the prosecution which are inconsistent with the innocence of the accused persons and incapable of any explanation or any loopholes, other than guilt of the accused G.C.Gupta, S.K.Chandel and D.K.Garg, I am of the considered opinion that apart from the offence of commission of criminal conspiracy to commit offences, the same are sufficient for proving substantive offences of criminal misconduct, cheating and forgery . C.C.No: 33 / 2011 Page No.179 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
331. In view thereof, I proceed to dispose off the present case as under: F I N A L V E R D I C T :
332. Having regards to the facts and circumstances and the discussions as delineated hereinabove:
(a) Accused G.C.Gupta, S.K.Chandel and D.K.Garg, stands convicted for offences punishable under section 120B r/w section 420, 468 and 471 I.P.C, read with section 13(1)(d) & 13(2) of Prevention of Corruption Act.
(b) Accused G.C.Gupta and S.K.Chandel, also stands convicted for substantive offences under section 13(1)(d) read with section 13(2) of Prevention of Corruption Act.
C.C.No: 33 / 2011 Page No.180 of 181
Judgement in the matter of:-
CC No.: 33 / 11.
CBI Vs. G.C.Gupta & Ors.
Dated : 16.10.2014.
(c) Accused D.K.Garg also stands convicted for substantive offence under section 420, 468 and 471 IPC.
333. Let all the convicts be heard on the point of sentence.
Announced in the Open Court On the 16 Day of October, 2014.
th (KANWALJEET ARORA) SPECIAL JUDGE : C.B.I. (P.C.ACT) DWARKA COURTS, NEW DELHI.
C.C.No: 33 / 2011 Page No.181 of 181