Delhi District Court
Cbi vs Vijay Singh, Etc on 30 April, 2007
IN THE COURT OF DR.SHAHABUDDIN:
METROPOLITAN MAGISTRATE: KARKARDOOMA
COURTS: DELHI
CBI V/s Vijay Singh, etc
JUDGMENT
RC-13(E)/96 U/Ss 420/468/471/1201B IPC
a) Sl. No. of the case : 49A/C
b) Date of the commission : In the year 1995-96 of offence
c) Name of the complainant : Sh. S. Raswant, Deputy Director, AEPC, New Delhi.
d) Name of the accused, : (1) Vijay Singh, S/o their parentage and Late Sh. J.N Singh, residence R/o S-379, Greater Kailash Part-II, New Delhi and (2) Parveen Diwan, S/o Sh. Diwan Chand, R/o 211B, Pocket-I, Phase-I, Mayur Vihar, Delhi
e) Offence complained of or : U/s 420/468/471/ proved 120B IPC
a) Sl. No. of the case : 49A/C
f) Plea of the accused : Both pleaded not guilty.
g) Final order : Both accused
acquitted.
h) Date of such order : 30/04/2007
i) BRIEF STATEMENT OF THE REASONS FOR DECISION.
1. The main facts of this case filed by CBI against the accused (in short called as prosecution case hereinafter) are to the effect that during the year 1995-96, accused, Vijay Singh, in the capacity of Managing Partner of M/s Bodywrap Apparels, hatched a criminal conspiracy with co-accused, Parveen Diwan, Director of M/s Bird Cargo Pvt Ltd., with an object to cheat officials of Apparel Export Promotion Council (in short referred to as AEPC hereinafter) and customs and and that in furtherance of the said criminal conspiracy, they obtained 16 genuine export certificates mentioned in detail at page-2 of the charge-sheet for exporting some ready made governments to United Kingdom (in short referred to as U.K hereinafter) under the unrestricted categories of ladies dresses for nominal quantity; that instead of exporting the material as per genuine export certificates, both accused prepared further 16 forged export certificates as mentioned in detail at page-4 of the charge-sheet for exporting restricted items i.e ladies dresses and fraudulently as well as knowingly exported the restricted category items by making forged shipping documents on 16 forged export certificates and claimed/obtained the duty draw back to the extent of Rs. 5,16,072/- (Rupees five lakhs sixteen thousand and seventy two only) from Delhi Customs/AEPC/Bank concerned and thereby caused wrongful loss to the Government of India to the extent of amount mentioned above. It is further alleged against the accused that they had fraudulently shown the destination of material to Switzerland by forging the certificates/documents for this purpose and they also induced the officials of AEPC/Customs/Banks at Delhi and New Delhi to extract money illegally to the extent of Rs. 5,16,072/- against 08 forged shipping bills. In this way, a charge-sheet was filed against the accused herein by CBI after completion of the entire investigation for the offences U/s 420/468/471/120B of Indian Penal Code, 1860 (in short referred to as IPC hereinafter).
2. The accused appeared in the court and they were supplied copies of documents in compliance to the provisions of Sec. 207 of The Code of Criminal Procedure, 1973 (in short referred to as Cr.PC hereinafter).
3. On 13/01/2000, a charge was framed against the accused herein for the offence U/s 120B IPC, r/w Secs. 420, 468 and 471 IPC as well as for substantive offences U/Ss 420, 468 and 471 IPC to which both the accused did not plead guilty and claimed trial.
4. From the side of prosecution, PW1 Sh. S. Raswant, PW2 Sh. M.L. Nagpal, PW3 Sh. Satyanarain Murthy, PW4 Sh. S. Ramamurthy, PW5 Sh. A.G. Dastidar, PW6 Sh. R.C. Dewan, PW7 Sh. Om Parkash, PW8 Sh D.K. Sawhney, PW9 Sh. V.K. Kaul, PW10 Sh. N.K. Kaushik, PW11 Inspt Sh. Rakesh Chander, PW12 Sh. Veer Bhan Arora, PW13 Smt. Chanderkala, PW14 Sh. Rajinder Kumar, PW15 Sh. P.K. Berri, PW16 Sh. H.M. Saxena and PW17 Sh. Ajeet Kumar Singh were examined and then remaining Prosecution Evidence (in short referred to as P/E hereinafter) was closed.
5. Statements of accused U/s 313 Cr.PC were recorded on 06/11/06 in which they denied the allegations against them as false and incorrect but did not want to lead Defence Evidence (in short referred to as D/E hereinafter).
6. Oral final arguments were heard earlier from Ld. Counsel, Sh. Raj Malhotra on behalf of accused, Vijay Singh and from Ld Counsel, Sh. Pardeep Choudhary on behalf of accused, Parveen Diwan on 09/11/06 but the same was not submitted by Sh. S.C. Sharma, Ld. APP on behalf of CBI on that date despite opportunity given. A further opportunity was given to both sides for filing written synopsis of final arguments by supplying advance copy of the same to each other and the same have been filed on record on behalf of CBI. In the meantime, the judicial file was summoned by Ld. Appellate Court due to revision petition filed by CBI pertaining to an order of this court and the judicial file has been received back from Ld. Appellate Court only recently. Due to this reason, fresh final arguments were heard today also i.e on 30/04/07 from Ld. APP, Sh. S.C. Sharma on behalf of CBI and from Ld. Counsel, Sh. Pardeep Choudhary on behalf of both the accused as well as from both the accused in person.
7. The main submissions of Ld. Defence Counsel during the course of oral final arguments earlier as well as on the basis of such arguments submitted today afresh were mainly to the effect that almost all the PWs have not supported the prosecution case beyond reasonable doubt against any of the accused; that there are several material contradictions in the statements of PWs recorded on behalf of the CBI in this matter; that no forgery, cheating, criminal conspiracy, etc was committed by any of the accused nor proved on record beyond reasonable doubt against any of the accused on the basis of oral as well as documentary evidence on record; that nothing illegal was done by any of the accused pertaining to this mater and that they were falsely implicated in this matter; that there is no evidence of handwriting expert worth taking into consideration on record in order to prove that there was any forgery of any document committed by any of the accused herein; that some of the witnesses did not appear for their cross- examinations on behalf of the accused despite being so ordered by this court and that their partly recorded evidence cannot be read against any of the accused; that CFSL report regarding alleged forged documents not proved on record; that documentation of all papers was done by Clearing House Agent (in short referred to as CHA hereinafter) after due verification and not by any of the accused herein; that there was no meeting of minds between the accused to held them guilty for criminal conspiracy; that none of the alleged forged documents was signed by any of the accused herein. On the basis of these grounds mainly, acquittal of both the accused was prayed for.
8. On the other hand, the main submission in the written synopsis of final arguments filed on behalf of the CBI as well as during the course of oral final arguments submitted on behalf of CBI afresh today on 30/04/07 were to the effect that both accused committed forgery of various documents in order to claim undue financial benefits to them; that oral as well as documentary evidence on record also proves the case of the CBI beyond reasonable doubt against both accused for various offences for which charge was framed against them in this matter. Lastly, a prayer was made to convict both the accused herein for various alleged offences as per law.
9. I perused the entire judicial file minutely in view of the above mentioned rival submissions.
10. Before proceeding further on merits of this case, I consider it essential to refer to the provisions of law for which charge was framed against the accused in this case.
11. Section 120B IPC provides as under:-
'''120B. Punishment for criminal conspiracy.
--(1) Whoever is a party to criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever, is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months or with fine or with both''.
12. Section 420 of IPC provides as under:
''420. Cheating and dishonestly inducing delivery of property. -- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any prt of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine''.
13. Section 468 of IPC provides as under:-
468. Forgery for purpose of cheating --
'' Whoever commits forgery, intending that the document 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''.
14. Section 471 of IPC provides as under:-
''
471. Using as genuine a forged [document or electronic record] -- Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]''..
15. Now, turning to the evidence on record, one of the contentions on behalf of accused, Vijay Singh was to the effect that as per order of this court dated 18/08/01, PW1 to PW7 were allowed by this court (on an application of accused, Vijay Singh filed U/s 311 Cr.PC) to be recalled for their cross-examinations on behalf of this accused subject to their availability but none of them was produced by the CBI for this purpose and no satisfactory explanation had come on record on behalf of CBI for not producing these PW's for their cross-examinations on behalf of accused, Vijay Singh. It was further contended that no justified reasons had been shown by CBI as to whether these PW's were available or not. On the basis of this contention, it was further submitted that their partly recorded evidence cannot be taken into consideration against this accused as he did not get any opportunity to get them cross-examined on his behalf in compliance to order of this court dated 18/08/01. This contention on behalf of this accused is found genuine on record. As PW1 to PW7 did not appear for their cross-examinations in compliance to order of this court dated 18/08/01, their testimonies cannot be read against the accused, Vijay Singh. In this regard, I also find support from an important judgment of Hon'bleDelhi High Court given in a case namely, '' Ripan Kumar V/s Department of Customs''2001 (I), JCC (Delhi), Page-47 (Hon'ble Delhi High Court). In para-9 of this judgment, the Hon'ble Delhi High Court held to the following effect:-
'
9. ............... Under the Evidence Act, evidence ' means the examination-in-chief and cross-
examination. That statement alone will form evidence. In the present case petitioner had been deprived to cross-examine PW1 thereby to dislodge his testimony. Hence incomplete statement of PW1 in the absence of cross-examination could not be treated as evidence nor the same could be relied upon. ....................''
16. There is yet another judgment of Hon'ble Karnataka High Court on this point given in a case namely '' S.B. Kalal and Others V/s State of 1991, Cr.L.J, Page-21 (Karnataka High Karnataka'', Court). There is also an important judgment of Hon'ble Supreme Court of India on this point given in a case reported as '' 1983, Cr.L.J., Page-159 (SC)''.
17. In my considered opinion, the ratio of above cited three cases applies equally to the instant case because no opportunity was available to the accused, Vijay Singh or to his Ld. Counsel for the cross- examinations of PW1 to PW7 respectively in this matter.
18. There are serious allegation of criminal conspiracy between both these accused. I am further of the considered opinion that as a matter of proprietory, testimonies of PW1 to PW7 cannot be taken into isolation so as to read the same against co- accused, Parveen Diwan also after ignoring the fact that their testimonies cannot be read against the co- accused, Vijay Singh as mentioned above. Despite this situation, even if their testimonies are read against co- accused, Parveen Diwan, I am of the considered opinion that after careful perusal of their entire testimonies, no criminal conspiracy nor cheating, forgery, etc stands proved either against this accused or against co-accused, Vijay Singh.
19. PW8 Sh. D.K. Shawhney deposed mainly about Bank account of Vijay Singh opened in Union Bank of India, South Extension Branch, New Delhi. To my considered opinion, he has deposed nothing incriminating against any of the accused.
20. The next witness i.e PW9 Sh. V.K. Kaul, Manager, Union Bank of India, New Delhi. He admitted in his cross-examination conducted on behalf of accused, Vijay Singh mainly to the effect that no intimation was received by the RBI regarding disposal of GR Forms or sending of the draw back as there was no such procedure; that there were no initials on register entries Ex. PW9/A1 to Ex. PW9/A5; that it was correct that all the GR Forms reached the office of RBI and the RBI did not know about the remittance; that they received the certificates from the branch regarding the remittance credited to the account of M/s Body Wrap and these certificates were sent to RBI alongwith their GR Forms; that there was no proof of receipt of GR Form by the RBI on the relevant register; that there was no proof with him showing that the GR Forms were sent to RBI and that the same was his answer with regard to Ex. A1 to A4. From the careful perusal of his entire testimony, I am of the considered opinion that this witness has miserably failed to connect any of the accused herein with the commission of alleged offences beyond reasonable doubt.
21. PW10 Sh. N.K. Kaushik admitted in his cross- examination that they had seen original of Ex. PW2/1 and did not find any contradiction in the same; that he had checked the invoice and GR's were also corresponding with the same and that the same was his reply pertaining to Ex. PW2/3, PW2/4, Ex. PW10/A and PW10/B respectively; that he had seen photocopy of SB No. 092218, which did not bear his signatures and he could not say as to who processed it. He further admitted that he could not say whether the same was processed through him or not; that he had not processed Ex. PW10/D1; that all the original shipping bills in triplicate are processed by them and only after due verification of the same, the consignment is submitted for report; that it was correct that they gave endorsement on the back of Ex. PW2/4 after due verification of all the forms namely Ex PW2/4, PW10/D1 and PW10/D2; that all these documents were in order. This witness has also not connected any of the accused herein beyond reasonable doubt for alleged offences.
22. PW11 Inspt Sh. Rakesh Chander admitted in his cross-examination that his statement was recorded by CBI after 3-4 years; that he had no knowledge regarding the sanctioned items from AEPC; that stamp of AEPC-24 was affixed on all the goods and the export of the goods was found genuine and in order as per the prescribed procedure; that Ramesh Chand Diwan was a CHA and was having the valid license No. 87/01, that all the shipping bills and consignments and goods were found in order and that there was no deficiency in the papers. Hence, this witness also does not support the prosecution case against any of the accused herein for alleged offences.
23. PW12 Sh. Veer Bhan Arora also admitted in his cross-examination, inter alia, that declaration of duty drawback form was received by them, which bears the stamp of AEPC-24; that he had seen all the documents and all were bearing stamp of AEPC-24 and all the documents were in order as per specifications found in order after the verifications of the same. In my considered opinion, this witness also does not support the prosecution case beyond reasonable doubt against any of the accused herein for any of the alleged offences.
24. PW13 Smt. Chanderkala deposed regarding her working as Tax Assistant in Duty Drawback Section of New Customs House in December 1997. She further deposed about certified copy of ledger- sheets running into two pages in respect of M/s Bodywrap Apparels by which this firm claimed duty drawback mentioned therein. However, her testimony was objected to on the mode of proof of this document because it was a photocopy and it was not attested by anybody. No satisfactory explanation had come on record regarding this lapse on the part of prosecution. Hence, her testimony is also not sufficient in itself to connect any of the accused herein with the commission of alleged offences.
25. PW14 Sh. Rajinder Kumar was got declared hostile by Ld. APP for CBI as he did not support the prosecution case against the accused. In his cross- examination conducted by Ld. APP for CBI, I do not find any incriminating evidence in his testimony against any of the accused. In his cross-examination conducted by Ld. Defence Counsel on behalf of accused, Parveen Diwan, he admitted that the shipping bills in question were not in handwring of anybody and that the same were typed bills; that they did not received commission from the exporter; that he was not employee of any particular person; that he did not give his statement to the Investigating Officer (in short referred to as I/O hereinafter) in English; that he did not remember whether he signed the statement before the I/O or not; that he did not name Parveen Diwan before the I/O; that he only forwarded documents and did not prepare any of them; that he did not remember as to who had handed over documents in this case to him; that he did not remember as to which document in question was submitted for clearance of consignment. In this way, this witness has also not supported the prosecution case beyond reasonable doubt against any of the accused herein.
26. PW15 Sh. P.K. Berri deposed in his examination-in-chief regarding various steps adopted in the process of receiving garments in question from accused, Vijay Singh. In his cross-examination conducted on behalf of accused, Vijay Singh, he admitted, inter alia, to the effect that it was correct that the export and the shipment was cleared by the clearance agent and that all the documents of clearance of export and shipping were handed over by clearance agent. From the entire testimony of this witness also, I am of the considered opinion that the case does not stand proved against any of the accused herein beyond reasonable doubt for the alleged offences.
27. PW16 Sh. H.M. Saxena happens to be the handwriting expert. He appeared to depose as Government Examiner of Questioned Documents (in short referred to as GEQD) from GEQD Laboratory, Shimla. In his partly recorded examination-in-chief, he mainly deposed regarding having received disputed and standard documents pertaining to this matter for giving expert opinion as to whether the disputed writings and signatures were forged ones or not. His further examination-in-chief was deferred on 16/10/03 at the request of Ld. APP, Sh. S.C. Sharma on behalf of CBI as Ld. APP wanted to file some applications but this witness never appeared thereafter for the completion of his remaining deposition. One of the contentions of Ld. Defencee Counsel during the course of final arguments was that his partly recorded evidence cannot be read against any of the accused herein because none of the accused got any opportunity to cross-examine him on various points pertaining to scientific examinations of questioned documents conducted by him regarding this matter. I find force in this contention of Ld. Defence Counsel. In this regard, I also further find support from the judgments of Ripan Kumar V/s Department of Customs (Suprea) and S.B. Kalal and Others V/s State of Karnataka (Supra) respectively as already discussed hereinbefore in which it was held mainly to the effect that partly recorded evidence of a witness cannot be read against the accused. It means that there is no evidence on record worth taking into consideration to the effect whether the disputed documents were really forged ones or not by or on behalf of any of the accused herein.
28. The last witness examined by CBI in this matter is PW17 Sh. Ajeet Kumar Singh. He deposed in his examination-in-chief mainly regarding obtaining GEQD opinion on alleged forged documents on the basis of specimen handwritings and filing of the charge-sheet against the accused herein after completion of entire investigation. The testimony of this witness has not been supported by handwriting expert namely PW16 Sh. H.M. Saxena as mentioned above as regards disputed documents. Hence, evidence of this witness is also not sufficient in itself to connect any of the accused herein with the commission of alleged offences beyond reasonable doubt.
29. No other PW was examined on behalf of CBI despite sufficient opportunities given for this purpose from time to time.
30. Both the accused have denied allegations against them as false and incorrect in their respective statements recorded U/s 313 Cr.PC.
31. In view of the above discussion and on the basis of entire material on record, including oral as well as documentary evidence on record, I am of the considered opinion that prosecution side has miserably failed to prove on record and beyond reasonable doubt the essential ingredients of criminal conspiracy, forgery, cheating, etc against any of the accused herein. Hence, both the accused are entitled to be acquitted for all the offences for which charge was framed against them. Accordingly, accused namely, Vijay Singh, S/o Late Sh. J.N. Singh and Parveen Diwan S/o Sh. Diwan Chand are hereby acquitted for the offence U/s 120B IPC, r/w Secs. 420, 468 and 471 IPC as well as for substantive offences U/Ss 420, 468 and 471 IPC. Their bail bonds are discharged and their sureties also discharged. File be consigned to Record Room as per rules after expiry of period of appeal/revision, as the case may be. ANNOUNCED IN THE OPEN COURT TODAY i.e on 30/04/07 (DR. SHAHABUDDIN) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI