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3. The learned Trial Court erroneously held that it was the duty of the Appellant to prove consignee's existence. Relying on Shambu Nath Mehra Vs. State of Ajmer (1956) SCR 1999 it is contended that Section 106 casts the onus to prove the facts especially in the knowledge of the accused. The prosecution cannot investigate half-heartedly, not prove the facts which it could have proved and then shift the onus under Section 106 Evidence Act on the accused. Further even if the onus is on the accused, the accused has to prove not beyond reasonable doubt but by the preponderance of probability and the same can be done even by cross-examining the prosecution witnesses. PW1 in his testimony admits that he located M/s. Supreme Trading Corporation at 1716 Gali Piou Wali, Dariba and thus the finding that it was a non-existent firm is incorrect. The evidence of PW18 Inspector B.S. Bhist CBI that he went and could not locate the address is inconclusive. Telephone number appears on the invoice and all communications. Since the bank account was operational, the firm cannot be said to be non-existent. At best it could be said to be a case of incorrect address. Further PW11 Rajesh Bali, the officer from the bank has stated that the account in question was opened on 17.08.1990 and closed on 17th July, 1999. The account in question being in operation for more than 9 years, no adverse inference of conduct of closing of the account after receiving the insurance amount could be drawn by the prosecution. The three addresses were not put to the Appellant under Section 313 Cr.P.C. and thus the same cannot be used against him. Further the non-delivery certificate was also not put under Section 313 Cr.P.C. to the Appellant [Kuldeep Singh Vs. State of Delhi (2003) 12 SCC 528]. There is no specific finding as to which communication of Rajan Enterprises is forged. The railway receipt is not proved to be a forged document. There is no evidence on record as to what was the fate of parcels sent from Delhi. Since there is no evidence that the goods were duly delivered at Ernakulam, the finding of the false claim is incorrect. As regards Rajan Enterprises, the only evidence is of PW15 which is also a hearsay evidence. No postal officer has been examined. PW22 did not go personally over there. The initial letter requesting for verification was not placed on record, so what verification was sought is not known.

Accused Arvind Kumar Sharma and K.V. Juneja presented bogus tracers report and illegally charged NIC the fees, thereof. The tracer report presented by them was also false and fabricated as it did not correspond to the truthful position.

13. There are four serious fundamental flaws in the case of the prosecution which have been erroneously held in favour of the prosecution and against the Appellants by the learned Trial Court. Firstly the case of the prosecution is that the important documents like the railway receipt and the non-delivery certificate were not available on record and the claim was passed in the absence of these material documents. On the other hand it is contended that the non-delivery certificate was a forged document. The two contrary contentions cannot co-exist. If the non-delivery certificate was not on record it could not have been held that a forged document was used.

16. The second most important finding No. (x) of the learned Trial Court is that as per the Ex. PW1/D, no non-delivery certificate was issued from Ernakulum Railway Station. The non-delivery certificate furnished in the claim file Ex. PW1/C was therefore, false, forged and fabricated. This finding of the learned Trial Court is based on no legal evidence and is wholly erroneous. Ex. PW1/D is a letter from PW15 K.V.P. Namboodri, Assistant Manager/Vigilance Officer, Cochin Branch of NIC to PW1 A.K. Seth, Vigilance Officer, Delhi NIC wherein he stated that he visited the Parcel Office of Ernakulum Junction Railway Station on 27th September, 1999 and discussed the matter with Mr. Mohanan, Chief Parcel Superintendent and Mr. Surender Nath, office staff. They verified their records thoroughly and confirmed that no such non-delivery certificate was issued from their office. They further stated the signatures and the rubber stamp of Chief Parcel seen in the certificate were not genuine and nobody signs as seen in it. Neither Mr. Mohanan, Chief Parcel Superintendent nor Mr. Surender Nath, office staff have been produced in the witness box who could on the basis of original record or on identifying the signatures not to be of the officer concerned could prove that the non-delivery certificate in the claim file Ex. PW1/C was a forged document. Since neither this document has been proved to be forged by the person in whose handwriting it is purported to be, nor by the expert opinion that the signatures on the documents were not of the person concerned, it could not have been held that the non-delivery certificate was proved to be forged document. The learned Trial Court defied the fundamental legal principles of proving a document to be forged before the Court and returned a finding that the non-delivery certificate was a forged and fabricated document without there being any evidence on record. The letter of Mr. K.V. P. Namboodri, PW15, who was the Vigilance Officer, is just like the statement of an Investigating Officer, who states that the document is a forged document without proving the same from the purported author of the document or person acquainted with his handwriting or after exhibiting and proving the original documents that the same does not relate to the pertaining entries. The photocopy of the non-delivery certificate purported to be a forged document was exhibited as Ex. PW15/DA while confronting PW15. The prosecution even failed to prove the original alleged forged non-delivery certificate on record. Further this inquiry of PW15 was merely on oral request and nothing was given by Mr. Mohanan, Chief Parcel Superintendent in writing to PW15 in respect of the alleged fake certificate Ex. PW15/DA. The investigating agency had cited Mr. E.A. Sathyanasen as a witness to prove the forgery of non-delivery certificate. Once summons were served to Mr. Sathyanasen to appear as witness however he did not appear. As per the status report filed by SP CBI before this Court, it is apparent that no further serious efforts were made to examine this witness and the learned SPP gave up this witness. There is total violation of Sections 45 to 47 of the Evidence Act while returning this finding in sub-para (viii) of Para 191 of the impugned judgment. Thus the prosecution has failed to prove that the non-delivery certificate on record was a forged document. The Hon'ble Supreme Court in S. Gopal Reddy Vs. State of Andhra Pradesh AIR 1996 SC 2184 held:

Thus, no malafide intention can be attributed in sending the documents by Supreme Trading Corporation even prior to the letter dated 12 th March, 1998 Ex. DW 2/DX-5.

37. For an offence punishable under Section 420 IPC there must be deception coupled with dishonest or fraudulent inducement to part with the property. Learned Trial Court failed to deal with the issue that admittedly even as per the prosecution case the consignment was sent from Delhi and there was no evidence on record that the same was received at Ernakulam or some other place by the Appellant Anil Maheshwari or someone on his behalf , thus it could not be stated that the claim of Appellant Anil Maheshwari was a false claim and the charge of Section 420 IPC has thus not been proved by the prosecution beyond reasonable doubt against him. The decisions relied upon by the learned Special Judge have no application to the facts of the present case. In Kuldip Sharma and Anr. V. State, 2000 CrLJ 1272 (Delhi) payments were taken from the Governemnt of India on the strength of bogus railway receipts. In Ram Prakash Singh v. State of Bihar, AIR 1998 SC 296 there was a false and fake insurance proposal. In the present case, it is the case of prosecution itself that goods were dispatched vide RR 646451 thus neither the RR was forged nor the claim was false. Appellant Anil Maheshwari has also been convicted for using bogus, false and forged document for offence under Section 471 IPC. As discussed above, the RR and the non-delivery certificate were not proved to be forged documents. Hence offence under Section 471 IPC has not been proved against him.