2017 (8) TMI 981 - HC - Customs

Misappropriation of reward money - reward to informer - smuggling of gold - contraband item - it was the case of the prosecution that a sum of ₹ 80 lakh in all, which was said to have been disbursed to a fictitious informer No. 1 was actually misappropriated by Accused Nos. 1 to 3 on the basis of forged payment vouchers and gross suppression of facts at various points of time - it is alleged that the accused had thereby committed offences punishable under Sections 409, 467, 471, 477A read with Section 120B and Section 34 of the IPC and under Sections 5(1)(c) & 5(2) of the PC Act, and under Sections 13(1)(c) and 13(2) of the PC Act - Held that - Though there has been some controversy raised as to the validity of the order of sanction to prosecute the accused, the counsel for the appellants have not dwelt on the same with any great emphasis and hence the issue is ignored. This significant circumstance that the original DRI-1 was never a part of the record would weigh heavily against the prosecution. For the reason, that the crux of the case of the prosecution is of destruction, falsification and substitution of the original DRI-1, with a concocted document, by the accused. It is significant to note that PW-13 confirms in para 8 of his deposition that Exhibit P-40 and D-1 are all the same. This has also been accepted by PW-48 the Investigating Officer in para 18 of his deposition by stating It is true that the document Ex.P.40, Ex.D.1 and Ex.D2(a) and Ex.P.51(h-1) are Photostat copies of same document. It would be relevant that PW-13 had also confirmed in his cross-examination that it was pursuant to Exhibit P-40 that the proposal for Advance Reward and Final Reward had been based. It cannot be lost sight of and would gain importance and significance that Exhibit P-40 was received by PW-13 on 12-4-1988 and further handed over to PW-15 on 13-4-1988 and entered into the Inward Register as per Exhibit P-40(e) on 20-4-1988. Consequently, the destruction of or falsification of DRI-1 is not established. By production of Ex.P.40 and Exhibit D-1 and by deposition of PW-13, PW-15 and PW-48 the document Exhibit P-40 as being the only DRI-1 stands established. It is also to be noticed that from a plain examination of the document, it is physically impossible to tamper with the document. It is typed on a manual typewriter. And it is not possible to add a letter or substitute a word subsequently, to obtain a perfect alignment without distorting the spacing between the typed words to make alterations. Or rather to effect changes in such a manner to change the tenor of the document to read as if it was with reference to a plurality of informers, rather than the alleged original text, which according to PW-10 and PW-11, was with reference to a single informer. According to them the letter s was added to the word informer and the words they and were , were inserted in the place of the words he and was . This was not possible. It is significant that this document was not examined by any handwriting expert nor was it sent for any forensic examination - If the Minutes of the Advance Reward Committee could not be found fault with, the subsequent meeting of the Final Reward Committee and the release of the final reward also cannot be faulted. In so far as the evidence of the finger print expert (PW-24) is concerned, the following particulars emerge from the evidence. The investigating officer (PW-48) had referred the thumb impressions of the informers taken on the information slip (Exhibit-21) at the time of recording of the information, as well as their thumb impressions taken at the time of disbursement of the advance reward and the final reward to them. It is an admitted fact that the identity of the informers is completely concealed. This is indeed confirmed by the several witnesses for the prosecution itself (PW-33, PW-34 & PW-46). The identity of the informer being known only to Accused No. 3 is hence not an unusual circumstance - the conspiracy as between the accused in the disbursement of the reward amount to a fictitious informer, cannot be said to have been established on the basis of the evidence on record. There is also no incriminating material to indicate that any part of such ill-gotten wealth had found its way to the hands of the accused - the charges against the accused are not established. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Validity of sanction for prosecution of Accused No. 2.
2. Criminal conspiracy under Section 120B IPC.
3. Criminal breach of trust under Section 409 IPC.
4. Disappearance of evidence under Section 201 IPC.
5. Forgery of documents under Section 467 IPC.
6. Fraudulent use of forged documents under Section 471 IPC.
7. Falsification of accounts under Section 477A IPC.
8. Misappropriation and pecuniary advantage under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.

Detailed Analysis:

1. Validity of Sanction for Prosecution of Accused No. 2:
The issue of the validity of the sanction for prosecution was not emphasized by the counsel for the appellants and hence was not dwelt upon in detail by the court.

2. Criminal Conspiracy under Section 120B IPC:
The prosecution alleged that the accused conspired to misappropriate reward money payable to informers by falsifying documents. However, the evidence did not establish any agreement or conspiracy between the accused before the seizure of the contraband on 7-4-1988. The court found no indication of Accused No. 1's involvement prior to the said date, and the alleged conspiracy was not supported by evidence.

3. Criminal Breach of Trust under Section 409 IPC:
The court examined whether Accused Nos. 1 to 3, having dominion over the property as public servants, committed criminal breach of trust. The evidence did not support the prosecution's theory of misappropriation. The prosecution failed to prove that the original DRI-1 was destroyed or falsified. The document Exhibit P-40, considered the only DRI-1, was found to be genuine and not tampered with.

4. Disappearance of Evidence under Section 201 IPC:
The prosecution alleged that Accused No. 1 destroyed the minutes of the Final Reward Committee meeting. However, the existence of such minutes was not established, and the allegation of destruction was not proved. The court found no evidence to support the claim of disappearance of evidence.

5. Forgery of Documents under Section 467 IPC:
The prosecution claimed forgery of documents purporting to be receipts acknowledging the payment of money. The court found no evidence of tampering or forgery in the documents, including the minutes of the Advance Reward Committee meeting (Exhibit P-41). The physical impossibility of tampering with a manually typed document was highlighted.

6. Fraudulent Use of Forged Documents under Section 471 IPC:
The court found no evidence to support the allegation that the accused fraudulently used forged documents to cause wrongful loss to the Department and corresponding wrongful gain for themselves.

7. Falsification of Accounts under Section 477A IPC:
The prosecution alleged that the accused falsified accounts by tampering with documents. The court found that the documents, including Exhibit P-40, were genuine and not tampered with. The evidence did not support the charge of falsification of accounts.

8. Misappropriation and Pecuniary Advantage under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988:
The prosecution alleged that the accused misappropriated funds entrusted to them as public servants. The court found no incriminating material indicating that any part of the reward amount was misappropriated by the accused. The evidence did not establish that the accused derived any pecuniary advantage from the alleged misappropriation.

Conclusion:
The court concluded that the charges against the accused were not established. The prosecution failed to prove the allegations of criminal conspiracy, misappropriation of reward money, forgery, fraudulent use of forged documents, falsification of accounts, and disappearance of evidence. The appeals were allowed, the judgment of the trial court was set aside, and the accused were acquitted. The bail bonds executed by the accused were discharged, and any fine amount paid was ordered to be refunded to the appellants.