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6. The Vigilance Department of the NIC conducted an inquiry/ surprise check at the Kapashera Branch during 1998-99. On a perusal of some of the files it appeared that certain claims were fictitious. The files of 5 to 6 such claims were seized. Mr. A.L. Gambhir (PW8), who was the Assistant Administrative Officer of NIC working in the Vigilance Department, was involved in the inquiry. In his evidence, he stated that after seizing the files, he submitted them to one Mr. A.K. Seth, in-charge of the Vigilance Department of NIC, Delhi Region. He stated that "the documents like Power of Attorney, Indemnity Bond, carrier receipts etc. were missing in those files which I had seized." However, he could not remember the details in the files which he had seized. Importantly, he stated that although he had prepared a seizure memo when he had seized the files, the said seizure memo was not on the record of the learned trial Court. Secondly, although he had submitted an inquiry report to Mr. A.K. Seth, the said report was also not on the trial Court record.

24. In the circumstances, it is not possible to accept the submission of learned counsel for the Appellants that on account of the misjoinder of charges, there was any failure of justice. In the considered view of the Court, the present case squarely falls within the ambit of Section 464(1) Cr PC and only on the ground of misjoinder of parties this Court is not persuaded to set aside the conviction of the Appellants.

Handing over of files by the Vigilance Department

25. The next contention advanced by the Appellants concern the seizure and preservation of files by the Vigilance Department of NIC and their subsequent entrustment to the CBI. It is stated that with there being a clear admission by PW8 that the seizure memo and the inquiry report prepared by the Vigilance Department not being in the judicial file at the time of trial, the burden was on the NIC to show what had happened to the documents found missing in the files seized. According to learned counsel for the Appellants, unless the seizure memo prepared by the Vigilance Department of NIC was made available, it would not be possible to know what papers existed when such seizure took place and if the files were not preserved in a tamper proof environment, then the Appellants would have the benefit of Section 114(g) of the Indian Evidence Act, 1872 and would be able to contend that an adverse inference ought to be drawn that the documents were kept back by the Prosecution would have, in fact, enured to the benefit of the accused.

27. In his examination-in-chief, PW-8 clarified that he found certain claims to be fictitious "because certain papers were not available in the file." He later clarifies in the same examination-in-chief that "the documents like Power of Attorney, Indemnity Bond, carrier receipts etc. were missing in those files which I had seized." At this stage, it must also be noted that it is stated in the evidence of PW9 that he processed the claim in Ex.P6 of M/s. Abha International and that all the papers in the said filed were recommended by him to be in order. PW9 himself being involved in the process of claim in Ex.P6 was, however, not proceeded against by the CBI.

28. Whether all the papers were in the file or not is the only aspect of the matter in these cases. It may be that in considering the conduct of L.K. Gupta, who had passed the claims, it would have to be shown by the Prosecution that the papers in the files were already missing when he passed the claims. If not, he would have the benefit of doubt since the failure to ensure that the files were kept in a tamper proof environment would enable him to take a defence that although the papers were available in the file, they were somehow not found when the CBI was handed over those files. However, there is another aspect of the matter which involves claims being made on behalf of fictitious firms with fictitious consignors and road carriers. There, it does not matter much that some of the papers may have gone missing as long as there is enough evidence on record to show that the claims were made on behalf of fictitious firms with the transporter and consignor also being fictitious.