Central Bureau of Investigation vs Pankaj Sharma and Another

Heard Sri Anurag Khanna, learned counsel for the C.B.I. Sri Ajatshatru Pandey, learned counsel for accused respondent no. 1, Pankaj Sharma, Sri S.F.A. Naqvi and Sri S. Faizan Naqvi, and Dr. C.P. Upadhyay, for accused respondent no. 2 and perused the lower court record.

This application for granting leave to appeal has been filed by the appellant Central Bureau of investigation against the judgment and order dated 6.10.2010 passed by the Special Judge(Anti Corruption) Ghaziabad in criminal appeal no. 93 of 2009-Pankaj Sharma Versus C.B.I. connected with Criminal Appeal No. 94 of 2009 Atul Gupta Versus C.B.I. whereby both the criminal appeals have been allowed, the judgment and order dated 31.7.2009 passed by the Special Judicial Magistrate, C.B.I. Ghaziabad in case no. 1251 of 2013 has been set aside and the accused respondents have been acquitted for the offence punishable under sections 120B, 417, 419, 467, 468 and 471 I.P.C.

The facts in brief are that the department of Women and Child Development in the Ministry of Human Resource Development, Government of India, hereinafter referred to as (D.W.C.D.) issued open tender for supply of medicines for the I.C.D.S. scheme, 1997 and the D.W.C.D. reportedly for the purchase of certain medicines items, hereinafter referred to as the kits, quotation were invited in sealed envelope, which were opened on 19.11.1996 by the concerned authority of the D.W.C.D. and after deliberation M/s. Orissa Drugs and Chemical Limited, hereinafter referred to as (O.D.C.L.) was awarded the tender along with some other PSUs on the same day for supply of the kits. Accordingly the order dated 17.2.1999 was placed to O.D.C.L. by the D.W.C.D. for supply of 65685 kits, for supply of the kits O.D.C.L. entered into an arrangement with another company namely M/s. Reliance Bulk Drugs and Formulation Limited, hereinafter referred to as R.B.D.F.L., then the kits were to be supplied by the R.B.D.F.L. to the O.D.C.L. which were then to be supplied by the O.D.C.L. to the D.W.C.D. In this arrangement, order dated 21.2.1997 was placed by O.D.C.L. to R.B.D.F.L. for supply of the entire 65685 which were accordingly supplied.

In this entire process, the then Managing Director of O.D.C.L. Sri M.M. Sharma intimated to the D.W.C.D. by his authorisation letter dated 8.2.2007 that Sri Seemanchal Dass, the then Regional Sales Manager of the O.D.C.L. posted at New Delhi will be authorised signatory and representative of O.D.C.L. to deal with the matter including the payment of cheque, draft and other documents in favour of the company. In this letter Sri M.M. Sharma also attested the signature of Sri Seemanchal Dass. After supply of the kits by the O.D.C.L. to the D.W.C.D. four invoices two dated 12.5.1997 and one dated 23.5.1997 and last one dated 26.5.1997) were sent to D.W.C.D. by the O.D.C.L. totalling approximate amount of Rs. 92 lacs for the payment of the supply of the kits. The D.W.C.P. in response issued two cheques, both dated 20.6.1997, totalling approximate amount of Rs. 87 lacs in favour of O.D.C.L.

This matter has been initiated by the C.B.I. against the accused respondents by registering an FIR dated 22.5.1998 on the basis of source of information, after completing investigation the charge sheet was submitted against accused respondents on which trial court took cognizance of the matter on 12.10.1999 and process was issued against both the accused. The trial court framed the charges against the accused respondents for the offence punishable under sections 120B, 420, 467, 468 and 471 I.P.C., which were read over and explained to the accused, they denied the charges and claimed for trial. Five prosecution witnesses in full were examined and the examination-in-chief in part of 6th prosecution witness was recorded. Thereafter, the case was transferred to the designated C.B.I. Court at Ghaziabad from Dehradun by the order of Hon''ble Supreme Court in the court of Special Judicial Magistrate, C.B.I. at Ghaziabad, remaining examination-in-chief of P.W. 6 and his cross examination was recorded and the rest of the evidence was completed.

From the side of prosecution 16 witnesses have been examined and 95 documents have been produced, thereafter statement of the accused respondents were recorded u/s 313 Cr.P.C. and from the side of the defence only one defence witness has been examined and no document has been produced. However, on the request of the defence, the trial court summoned three documents from the State Bank of India, Karol Bagh branch, New Delhi and two documents from the State Bank of Indore, C.P. Branch, New Delhi and one document from the O.D.C.L.. At the stage of the final arguments an application u/s 319 Cr.P.C. was moved to summon Sri Vijay Kumar Chawla, Managing Director, R.B.D.F.L. as accused, the same was allowed and the file of accused Vijay Kumar Chawla was separated from the trial of the accused respondents.

The trial court after evaluating the evidence available, recorded the finding of conviction of the accused respondents for the offence punishable under sections 120B, 417, 419, 467, 468 and 471 I.P.C. and they were sentenced to undergo simple imprisonment of one year u/s 120B I.P.C., simple imprisonment of one year u/s 417 I.P.C., simple imprisonment of two years u/s 419 I.P.C., simple imprisonment of two years and fine of Rs. 10,000/- each u/s 467 I.P.C., simple imprisonment of two years and fine of Rs. 10,000/- each u/s 468 I.P.C. and simple imprisonment of two years u/s 471 I.P.C. In default, of payment of fine, both the accused respondents were directed to undergo an additional sentence of one month simple imprisonment separately for the offence punishable under sections 467, 468 I.P.C., all the sentences shall run concurrently. The judgment and order dated 31.7.2009, by which the accused respondents was convicted, was challenged by the accused respondents by way of filing criminal appeal no. 93 of 2009 and 94 of 2009 respectively, both the criminal appeals were decided by a common judgment and orders dated 6.10.2010 by which both the appeals were allowed. The judgment and order dated 31.7.2009 was set aside and the accused respondents were acquitted for the offence punishable under sections 120B, 417, 419, 467, 468 and 471 I.P.C. The judgment and order dated 6.10.2010 has been challenged by the C.B.I. before this court by way of filing the present appeal no. 39 of 2011 in which the application for granting leave to appeal has been filed.

It is contended by the learned counsel for the appellant that it is a case in which cheating and forgery has been committed in a preplanned manner, the trial court has decided the basic points firstly whether the accused respondent no. 2 Atul Gupta has impersonated as S. Dass and opened a current account in C.C.B. on behalf of O.D.C.L. by making signature as S. Dass, secondly whether the resolution of O.D.C.L. dated 5.6.1997 and 14.6.1997 purported to have been signed by Sri S.C. Kakkar as Managing Director, O.D.C.L., used for opening of the current account in C.C.B. are forged one, thirdly, whether accused respondent no. 1, Pankaj Sharma has introduced the current account, fourthly, whether both the accused respondents have acted in conspiracy to each other, lastly whether the entire act attributable to both the accused respondents made them criminally liable and if yes then under what provisions of existing penal laws. In this regard the finding has been recorded by the trial court that actual injury has been caused by the accused respondent to O.D.C.L., regarding the requirement of the criminal intention to cause wrongful gain or wrongful loss. It is interesting to note that invoices were sent by O.D.C.L. to D.W.C.D. on 12.5.1997, 23.5.1997 and 26.5.1997. The first fake resolution prepared on 5.6.1997. The current account was provisionally opened on 23.6.1997, second fake resolution was prepared on 14.6.1997, then the account of the A.M.L. was opened on 18.6.1997 and on the same date the provisional fake current account was confirmed by issuance of cheque book, then the two payment orders were issued by the D.W.C.D. on 19.6.1997 and consequently the two cheques dated 20.6.1997 were issued which were deposited in the current account and then withdrawal was started from 23.6.1997. The significance of these dates could not be ignored as it necessarily points towards the malafide intention behind the entire exercise carried out by the accused. Legally speaking the criminal intention has to be inferred from the facts and circumstances of a case and by the conduct of the accused taken in totality. It is vehemently argued from the defence side that certain question in this case have remained unattended like the cheque book of the current account was issued to whom and it was in whose possession and who deposited the two cheques of the D.W.C.D. dated 30.6.1997 in the current account. Certainly some questions of vital importance remained unanswered in this case as no evidence has been adduced on these points from the prosecution side and the defence side because the main person in the entire episode Mr. S. Dass, who could have given valuable inputs in this case, died during initial phase of the investigation. But the question is whether any benefit of this fact could be given to the accused. The answer is ''no'' because the trial of one accused summoned u/s 319 Cr.P.C. is yet to conclude wherein these points may become clear and the well established legal position on law of conspiracy is that it is not necessary that in every conspiracy entire factual matrix will come to light, the requirement is that essential ingredient of the substantive offence be proved and accused be directly connected with any of the chain of the events. In this case the essential ingredients of the substantive offences have been proved and the accused have been directly connected with some of the chain of the events. Hence there is enough material on the record to hold conviction of the accused. Now it would be necessary to discuss the liability of the accused in the individual substantive penal provisions.

It is further contended that proved facts in this case are summarised as; A current account was opened by the accused no. 2 in conspiracy with accused no. 1 by impersonating himself as ''S. Dass'' and thereby putting his signature on the account opening form and the specimen signature card. In this process two false resolutions of the O.D.C.L. were created and presented to the C.C.B. The manager of the C.C.B. believed and acted upon them and opened the current account. The cheques received from the D.W.C.D. were deposited in the current account and then the money was immediately withdrawn from the current account and transferred to the R.B.D.F.L. and the Hindustan Trust. Most of the money was then deposited in the genuine account of the O.D.C.L. which was again transferred to the R.B.D.F.L. The accused were charged under sections 120-, 420, 467, 468 and 471 I.P.C. The offence of conspiracy between the accused has been held to be proved by the discussion of this court in above paras. The offences of section 420 I.P.C. is not proved from the facts of the case because there is no evidence that the accused have dishonestly induced any person to deliver the property. As said earlier the two cheques dated 20.6.1997 for the D.W.C.D. had been received by the accused rather they have been received by P.W. 15 and there is no inducement by the accused to the D.W.C.D. However, it is proved that the accused have dishonestly concealed the real facts from the C.C.B. while opening the current account and thus caused deception as per explanation to section 415 I.P.C. By causing such deception they induced the C.C.B. manager to open the current account which could have not been opened if not so deceived. As discussed earlier though actual injury has been caused to O.D.C.L. yet deception to the O.D.C.L. has not been proved. Deception was caused to the C.C.B. and thereby the current account was opened and then the amount meant for the O.D.C.L. was deposited in the current account and subsequently withdrawn. In the entire process the damage or harm caused or likely to have caused to the C.C.B. was the harm to the reputation of the of the C.C.B. when the fraud came to light. Thus the offence u/s 417 I.P.C. is proved to have been committed by the accused by deceiving the C.C.B. which caused or had potential to cause damage or harm to the C.C.B. Similarly, it is proved that when the current account was opened, a false document was made by filing of the account opening form of the current account and the accused had intention to cause wrongful gain to themselves or wrongful loss to the O.D.C.L. and thereby they caused actual injury to the O.D.C.L. Thus all the essential ingredients of section 467 I.P.C. are fulfilled. Similarly, it is proved that the forgery committed by the accused in the process of opening of the current account was for the purpose of cheating. Hence the offence of section 468 I.P.C. is proved to have been committed and since the accused have used the false resolution dated 5.6.1997 and 14.6.1997 as genuine for opening of the current account thus offence u/s 471 I.P.C. is also proved to have been committed. The prosecution prays that all the essential ingredients of section 419 I.P.C. are also proved, but the defence contention is that charge has not been framed under this section. It is true that charge has not been framed in the distinct heading of section 419 I.P.C. yet a careful perusal of the charges framed on the accused show that the substance of the offence u/s 419 I.P.C. had been explained to the accused in the first head of conspiracy. Thus as per the provisions of section 464 Cr.P.C. this error is not fatal to the proceedings because no failure of justice has occurred due to such error. It has been proved that the accused no. 2 has impersonated himself as ''S. Dass'' and then cheated the C.C.B. Hence all the essential ingredient of section 419 are also proved. Accordingly this court holds that both the accused are liable to be convicted under sections 120B, 417, 419, 467, 468 and 471 I.P.C.

It is further contended that the appellate court without any proper reason interfered in the finding of conviction and recorded the finding of the acquittal by the appellate court vide judgment and order dated 6.10.2010 which are not based on the record, the view taken by the appellate court acquitting the accused respondents is not a possible view, it requires interference by this court, therefore, the impugned judgment and order dated 6.10.2010 passed by the appellate court requires interference, therefore, leave to appeal may be granted.

In reply to the above contention it is submitted by the learned counsel for the accused respondents that the trial court has passed an erroneous judgment and order dated 31.7.2009 which has been set aside by the appellate court on 6.10.2010. The appellate court has not committed any error in setting aside the judgment and order dated 31.7.2009 by which the accused respondents was convicted. The prosecution has failed to prove its case against the accused respondents beyond the shadow of doubt. The appellate court has passed the impugned judgment after going through the entire evidence available on the record, the appellate court has considered the evidence, there is no misreading of evidence also. The appellate court has acquitted the accused respondents, the view taken by the appellate court is a possible view. In any case, the offence of cheating and forgery has not been established against the accused respondents, therefore, the impugned judgment and order dated 6.10.2010 does not require any interference by this court, therefore, leave to appeal may be refused.

Considering the facts and circumstances of the case, submissions made by the learned counsel for C.B.I. learned counsel for the accused respondents and from the perusal of the impugned judgment dated 6.10.2010 and the judgment and order dated 31.7.2009 it reveals that the accused respondents have been convicted by the trial court for the offence punishable under sections 120B, 417, 419, 467, 468 and 471 I.P.C. but the appellate court vide order dated 6.10.2010 has set aside the judgment and order dated 31.7.2009 and the accused respondents have been acquitted for the above mentioned charges. the evidence reveals that the D.W.C.D. issued open tender for supply of medicine kits for I.C.D.S. scheme 1997 of the D.W.C.D. quotation were invited in which tender of O.D.C.L. was accepted for supplying 65685 kits, the O.D.C.L. Company made contract with R.B.D.F.L., the kits were supplied by the R.B.D.F.L. to O.D.C.L. company, the S. Dass was the Regional Sales Manager of O.D.C.L. and he was authorised signatory, he was authorised by M.D. of the company for the company''s payment and to accept the cheques and draft on behalf of the O.D.C.L. company, the Ministry of H.R.D. issued two cheques totalling Rs. 87 lacs on 20.6.1997 in lieu of the medicines kits supply, both the cheques were deposited in the Bank Account by the Citizen Cooperative Bank, Noida on 30.6.1997 in the name of Sri S. Dass. It is a case in which after completing the investigation C.B.I. submitted the charge sheet, the case is based on the circumstantial evidence but the chain of circumstances is not complete. The statement of P.W. 6, V.K. Sharma, Manager, C.C.B. is full of material contradictions, the accused respondents Atul Gupta whose signature is admitted, its sufficient explanation has been given that he had acted on the basis of the order given by Sri V.K. Chawla, he was having no criminal intention to obtain any wrongful gain, the contents of cheques have been filled by the employee, but the signature has been put by the account holder, in this regard P.W. 13 S.K. Sirajuddin, categorically stated that the signatures were of S. Dass, on this point no expert opinion has been obtained and Sri S. Dass has died, the prosecution has failed to establish that the disputed signature was not of Sri S. Dass, in opening a new account all the formalities have been completed in accordance with the rules. It has come in evidence that the relations of P.W. 6 V.K. Sharma, Director of C.C.B. with the accused Sri V.K. Chawla were very cordial, they were knowing each other. There is no evidence on the record that the account opening form was having the photograph. The accused respondent Pankaj Sharma, introduced the person who opened the account, it was not having the photograph, it has been deposed by P.W. 15 Raj Kumar that he had received cheques sent by the Ministry and the same were handed over to Sri S. Dass, no evidence has been adduced to show that the cheques in question, if were not deposited by S. Dass in C.C.B. account as to how the same were deposited by the accused respondent Atul Gupta. The trial court has not considered the statement of P.W. 12 M.M. Sharma by which O.D.C.L. company had authorised Sri S. Dass to receive the payment and no other person was authorised for this purpose but Sri S. Dass had authorised Sri Raj Kumar to bring the cheques from the Ministry, the trial court has not considered the fact as to how the cheques of O.D.C.L. payment reached to R.B.D.F.L. its reply was not given by Sri S. Dass with regard to informing the company board and no enquiry was set up with regard to the cheques in question. The amount of both the cheques was deposited in the company''s account at Karol Bagh branch of S.B.I. New Delhi it is a case in which no loss has occurred to any of the company and no wrongful gain has been obtained by the accused respondents. It is a case in which no role has been played by the accused respondent in bringing the cheques in question from the Ministry and no opinion has been obtained from the G.E.Q.D. The prosecution has failed to establish that the accused respondents have committed the offence of cheating and forgery. It is a case which may be divided in two parts, first part is of the opening of the account and the second part is that of committing the offence after opening the account. After opening the account the entire amount deposited therein was transferred in another account of O.D.C.L., company the same has been admitted by O.D.C.L. company it shows that the entire amount was transferred to a regular account of the company and second part of the incident does not disclose any offence. So far as the first part of the incident is concerned, documents exhibit Ka-26 and Ka-27-are specimen signatures on the card and account opening form, exhibit Ka-26 is sample signature on the card of C.C.B. on which the photo of Atul Gupta is affixed, it is having the signature of S. Dass.

Sri S. Dass was the Regional Sales Manger, who is dead, his signature available on exhibit Ka-61 and Ka-67 have also been identified by P.W. 13 but deliberately the signature available on exhibit Ka-26 and Ka-28 were not put up for identification, it has been admitted by P.W. 13 that exhibit Ka-26 and Ka-28 were bearing the signature of S. Dass, the opening account form was also bearing the signature of S. Dass. P.W. 3 Vinod Kumar has not given any opinion in respect of the disputed signature of S. Dass. It has also come in evidence that no complaint in respect of the opening of the fake account was made by S. Dass, the receipts of both the cheques were also collected by the I.O. during investigation, but the same were not got examined by the Public Analyst and no action has been taken against P.W. 15 Raj Kumar, who received the cheques without having the authority. It has come in the deposition of P.W. 15 Yashpal Singh, who is the Investigating Officer of this case, that total amount deposited in C.C.B. Noida has been transferred to regular account of O.D.C.L. in S.B.I. Karol Bagh, New Delhi, it has come in evidence of P.W. 3 Vinod Kumar, Public Analyst, G.E.Q.T. that the signature of A. Gupta and the handwriting of the accused respondents were examined but no definite opinion could be given. It has also come in evidence that the photo affixed of exhibit 28-Ka and 29-Ka were not put up for identification, it was the duty of the authority who opened the account in the Bank in process of opening the account; the name of the officer has not come into light, who verified the photograph also, the officer of manager level was authorised for verifying the photo of the person in whose name the account was opened. In the present case admittedly both the photos were not having the signatures of any authority, which reflect that there was possibility of changing the photograph. It has been deposed by P.W. 6 that without any complete papers, the account was opened on the direction given by Sri V.K. Chawla, he himself has not verified the photos of S. Dass, the name of the person who was authorised to verify the photo has not been disclosed. The statement of P.W. 6 reflects that without verifying the photo the permission to open the account was given. P.W. 6 was unable to say whether on 13.6.1987 the account opening form to open the account, which was deposited, was bearing the photograph, he was not knowing the accused respondent Pankaj Sharma, the person who opened the account was introduced by Pankaj Sharma, on the date of the introducing he was not having any account in C.C.B. It has also come in the deposition of P.W. 6 that it was told by Sri V.K. Chawla on phone that he was a genuine person and he was asked to open the account in his name that is why he opened the account, in such circumstances, the appellate court recorded the finding that the prosecution has failed to prove its case against the accused respondents beyond the shadow of doubt and the accused respondents were not entitled for the benefit of doubt. The appellate court interfered in the finding of conviction recorded by the Special Judicial Magistrate, C.B.I. Ghaziabad vide judgment and order dated 31.7.2009 and the accused respondents have been acquitted. The appellate court has considered the entire evidence available on record. There is no misreading of the evidence also, the view taken by the appellate court acquitting the accused respondents is a possible view, it does not require any interference by this court, therefore, leave to appeal is refused.

Accordingly this application for granting leave to appeal is dismissed.