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TMI Blog2017 (8) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar, Advocate, for the Respondent. JUDGMENT These appeals are heard and decided together. 2. The accused are in appeal challenging their conviction. It was alleged that during the period 1988-89, the following officers of the Customs Department, namely, (Accused No. 1) J.P. Kaushik, Collector of Customs, Bangalore, (Accused No. 2) R.J. Manohar, Additional Collector of Customs, Mangalore and (Accused No. 3) G.B. Joshi, Inspector of Customs, Kundapur, had entered into a conspiracy, along with certain private persons, namely, J.M.Z. Pookoya and others to misappropriate certain reward money which was payable to informers. And that in furtherance of the said criminal conspiracy, they had ensured that the reward money of ₹ 1 crore was entrusted to them by the Department for disbursement to the informers. It was alleged that they had dishonestly and fraudulently misappropriated the same by falsifying and forging the official records. 3. The background to the case is said to be as follows. The Ministry of Defence, Government of India, is said to have provided for incentives to informers - furnishing secret information to the Customs officials in respect of the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isbursement to the informer as per the office order. It was alleged that a sum of ₹ 55 lakh was misappropriated on the pretext of disbursement to a fictitious person shown as Informer No. 1, on 29-7-1988 at Bangalore, by Accused No. 1, who is said to have obtained the left thumb impression of the alleged informer No. 1, on the back of an information slip and on a proforma, namely, Annexure-B thereto. In this regard, it was further alleged that this dubious and fictitious disbursement was sought to be fortified by Accused Nos. 2 3 joining as witnesses in having acknowledged the disbursement to the imaginary Informer No. 1. This mischief is said to have been exposed when on 1-8-1988, a Demand draft for ₹ 11 lakh was said to have been encashed at the SBI, Mangalore by one Selvarajan, Executive Officer, Customs and the amount is said to have been handed over to Accused No. 2, which in turn, was disbursed by Accused No. 1 to the Informer No. 2, G.N.Z. Pookoya, whose left thumb impression was said to have been obtained on the back of the information slip and on Annexure-B thereto. The left thumb impression of Pookoya was said to have been identified by Accused Nos. 2 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were conveniently shown as having been witnessed by Accused Nos. 2 3. ₹ 9 lakh was said to have been disbursed to Informer No. 2, Pookoya, by Accused No. 2. Thereafter, he is said to have issued a false disbursement certificate in the form of Annexure-A and mentioned therein as follows - For having made payment of ₹ 45 lakh on 18-11-1989 to the right informer and from whom a receipt is said to have been obtained by him, significantly without quantifying the amounts disbursed to each such informer. Hence, 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 as stated above. It was the case of the prosecution that the opinion of the finger print expert unravelled the fact that the left thumb impression of the ghost informer No. 1 obtained on the cash receipts (Proforma - Annexure B) and the back of the information slip, for ₹ 44 lakh and ₹ 36 lakh did not tally and that the said impressions differed from the left th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 1 to 3 having dominion over the property in their capacity as public servants committed criminal breach of trust in respect of such property within the contemplation of Section 409 IPC? (4) Does prosecution further prove that Accused Nos. 1 to 3 in furtherance of the criminal conspiracy after committing offence of criminal breach of trust caused the evidence of the offence to disappear as to constitute offence under Section 201 IPC? (5) Does prosecution prove forgery of the documents purporting to be receipts acknowledging the payment of money within the contemplation of Section 467 of IPC? (6) Does prosecution further prove that the accused fraudulently used as genuine forged documents in pursuance of the criminal conspiracy to cause wrongful loss to the Department and corresponding wrongful gain for themselves so as to constitute offence under Section 471 of IPC? (7) Does prosecution prove that accused No. 1 to 3 being officers of Customs Department with intent to defraud the Department falsified the accounts by tampering with the documents within the contemplation of Section 477A of IPC? (8) Does prosecution prove that Accused No. 1 to 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the information gathered was reduced as an information slip, to which the informers are said to have subscribed their left thumb impressions. (Exhibit P-21) It is emphasized that two sets of thumb impressions found therein, indicating that there were two informers, (one of whom was CW-50) has not been dislodged in evidence. It is next pointed out that in terms of the Customs Preventive Manual (Exhibit P-63), the information received from any informer requires to be reduced into the form of DRI-1 and is to be forwarded in original to the office of the Directorate of Revenue Intelligence, New Delhi, by the Assistant Collector, concerned and a copy is to be forwarded to the Collector of Customs, in whose jurisdiction the seizure takes place, as well as the Zonal Officer. In the instant case, this requirement is said to have been met as confirmed by PW 11, 12 13. It is also established that the DRI-1 was forwarded to DRI, New Delhi, from the office of Accused No. 2 at Mangalore on 7-4-1988, as evidenced by Exhibit P-77(a). Copies having been despatched in accordance with the Manual, to the concerned is also evidenced by the said exhibit. It is not the case of the prosecution that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginal DRI-1 had taken place prior to 7-4-1988, and that the DRI-1 despatched under Exhibit P-77(a) was not Exhibit P-40. It is next contended that the Advance Reward Committee constituted consisted of PW-10, PW-11 and Accused Nos. 1 2. The meeting held by the Committee to approve release of the Reward amount is not in dispute. However, the deposition of PW-10 and PW-11 is sought to be relied upon to establish that DRI-1 at Exhibit P-40 was not shown to them. Significantly, Exhibits P-40, D-1, D-2(d), P-51(h-1) and P-47(e-1) are photocopies of the same document. These have been recovered by the respondent from various sources during investigation or are produced by the DRI, Bangalore. It is not the case of the prosecution that the same are either tampered with or that they have been replaced or inserted. There is not even an allegation in this regard. This circumstance would render the evidence of PW-10 and PW-11 as being unreliable. It is further contended that insofar as the Minutes of the Advance Reward Committee meeting (Exhibit P-41), in which PW-10, PW-11 and Accused Nos. 1 2 were members, had been drawn up and typewritten on a manual typewriter, by PW-15, it is poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvolvement was only with effect from a date subsequent to the date of seizure, namely, 7-4-1988 and that he had paid the amount to the informers identified by Accused No. 3. That the prosecution had not produced any evidence to indicate that the said appellant had any part to play or was shown to be involved in the matter of recruiting the informers or in recommending the disbursal of the reward amount, prior to 7-4-1988. This, it is contended, would completely defeat the case of the prosecution of any alleged conspiracy. It is contended that as the material on record in relation to recording of information from the sources and the contents of the information slip (Exhibit - P-21) disclosing two sets of thumb impressions and the same having come into existence prior to April 7, 1988 - there was no basis to find the appellant, accused No. 2 guilty of any wrongdoing. It is pointed out that the trial Court had overlooked the circumstance that the all crucial document, DRI-1, which was required to be forwarded to three different organizations and the fact of its receipt at New Delhi and Bangalore not having been verified as accepted by PW-48, and the same having been confirmed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appreciate the circumstance that the prosecution had attempted to establish PW-25 was an informer and ought to have received the reward amount. This stand was contradictory to the contention of the CBI, in the writ petition that was filed by PW-25, in the writ jurisdiction of this Court, seeking to lay claim to the reward amount. That there was no incriminating material produced to indicate that the appellant, Accused No. 3 had received any part of the reward amount, though a detailed audit and inventory was taken of his assets, accounts and securities, by several authorities in multiple proceedings, as a fall out of this very case. It is also pointed out that the Court below has failed to appreciate that the finger print expert had confirmed the thumb impression of CW-50 on Exhibit P-104, which was an undertaking executed, to share the reward with the other informer. Hence it is prayed that the appeal be allowed and the judgment impugned be set aside. 6. The learned counsel for the respondent while seeking to justify the judgment of the trial Court, it is his endeavour to highlight the following aspects : When Accused No. 2 had made the proposal for the advance rewa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the final reward amount and is said to have recommended a total sum of ₹ 1.10 crore. Accused No. 1 is said to have placed the same before the Final Reward Committee, New Delhi, consisting of PW-10, PW-12 and Accused No. 1. On 1-3-1989 the Committee is said to have approved the payment of the final amount of ₹ 45 lakh. The file was said to have been given to Accused No. 1 to carry the same with him to Bengaluru, it is alleged that Accused No. 1 had destroyed the minutes of the meeting dated 1-3-1989 and had made a note in his own hand on the file to the effect that the final reward Committee had sanctioned ₹ 1 crore. It is highlighted that Accused No. 1 had not brought it to the notice of the Reward Committee that there were two informers. The evidence of PW-10 and PW-11, the final Reward Committee members did indicate that they had considered payment to only one informer. The note of the CAO, who had prepared the bill for the remaining amount of ₹ 45 lakh had also referred to an informer and the abstract contingent bill was also in respect of a reward to an informer. PW-1, the CAO, is said to have obtained a cheque for ₹ 45 lakh in favour of the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been provided to Appellant No. 3 by an informer or informers, recruited by him, a seizure was made of gold biscuits of foreign origin that were sought to be smuggled into India at a place called Church Point, Gangulli Beach, South Kanara district, off the western coast of India, in the early hours of 7-4-1988. The gold that was seized from an Arabian dhow, was of an estimated value of ₹ 10.39 crores. It was said to be the biggest catch in the history of the Customs Department. On the receipt of information of the seizure and on the recommendation of Accused Nos. 3 and 2, a proposal was made for payment of an advance reward of ₹ 55 lakh to the informer, out of the total reward amount payable in a sum of ₹ 1 crore. This was in accordance with the Government of India Guidelines, which provided that the informers were entitled to the reward on the recommendation of an Advance Reward Committee and a Final Reward Committee. The Advance Reward Committee which considered the proposal is said to have approved payment. It was alleged that as per the original DRI-1, (A form in which the thumb impression, as identity of the informer is obtained by the officer recr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finality. It is that circumstance which had prompted an investigation leading to the criminal proceedings. In the above background, the matter is addressed at length. 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. The prosecution has, in order to establish the charges levelled against the accused, has examined 48 witnesses and marked 142 documents as exhibits. The First information report (Exhibit P-128) in this case is filed on 12-2-1995, a full seven years after the incident. It is also significant that, one Pookoya, and an informer who had received part of the reward amount, was named as accused No. 4. In the final Charge Sheet, however, he was cited as CW-50 and was not sent up for trial. Significantly, he was also not examined as a witness at the trial. It is seen that in so far as the collection of information prior to the seizure of the contraband, is by Accused No. 3 as evidenced by Exhibits P-67, P-74, P-129 and P-130. He may have kept Accused No. 2, who was his immediate superi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same document has been initialled by me on 13-4-1988 and it was marked by me to Mr. Khan, UDC. The DRI.1 report at Ex.P.40 was received earlier to Ex.P.39. In the face of this independent evidence, it cannot be said that a copy of the DRI-1 was not received at the office of the Collector of Customs, Bangalore. This was due compliance with the procedure. Further, the despatch of the DRI-1 to the Headquarters at New Delhi is established by Exhibit P-77(a). But the investigating officer, PW-48 has made this revelation, at paragraph 16 of his deposition : I have visited the office of DRI, Bangalore as well as the office of Director General of DRI office of New Delhi. But I have not recorded the statement of anyone of that offices in respect of receipt of any documents from Mangalore, from the office of Bangalore. In the course of the trial it is noticed that the appellant had made an application under Section 91 CrPC seeking the original of DRI-1 dispatched from Mangalore to New Delhi. In response to which the respondent is seen to have declared, vide memo dated 7-11-2003, that the same could not be produced as the records of the year 1988 had been destroyed. This sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Incidentally, it is also not in dispute that Exhibits P-40, D-1, D-2(d), P-51(h-1) and P-47(e-1) are all photocopies of the same document. These have been recovered in the course of investigation from several sources. It is not alleged by the prosecution that the same have been tampered with. Hence the evidence of PW-10 and PW-11, does not merit consideration, when it is baldly alleged that the document is substituted. The minutes of the meeting of the Advance Reward Committee (Exhibit P-41) was typewritten on a manual typewriter by PW-15, the tenor of the document would clearly refer to a plurality of informers. The minutes were duly signed by PW-10 and PW-11. However, the said witnesses claimed that the document had been tampered with by interpolation of letters to make it seem as if there was reference to more than one informer. It is significant that the investigating officer, PW-48, has with specific reference to this document stated that the same had not been sent for forensic examination and that there were no interpolations found in the document (paragraph 21 of his deposition). There is no charge framed as regards interpolation of the said document. But a case was how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts meetings having been destroyed by Accused No. 1 is concerned, unlike, in respect of the Minutes of the meeting of the Advance Reward Committee, where PW-15, the witness who had prepared the minutes had been examined, no witness who may have been involved in the clerical chore of preparing the document has been examined to demonstrate its existence. PW-10 has stated that the minutes of the meeting were dictated by PW-12. But no person has been examined as to the text of that minutes. When its existence is not established, the destruction of the same as alleged cannot be readily accepted. The existence of two informers is disclosed in the information slip, exhibit P-21, which contains two sets of thumb impressions and which was recorded much prior to the seizure. Further, separate receipts at Exhibits P-23 to P-26 were executed by two informers with their separate thumb impressions, one of whom was CW-50, while receiving the Advance and Final Reward amounts, would also indicate the existence of two informers. Accused No. 2, has in his office file recorded a note dated 1-8-1988, Exhibit P-57, about disbursement of the reward amount to two informers. Similarly, a note at Exhib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly. The following contradictions in particular are to be noted : (a) Para 38 of PW-10 s deposition : It is false to suggest that PW-11 came to Delhi to prepare Exhibit P-47 It is false to suggest that PW-11- Sukumar Shankar dictated the contents of Exhibit P-47. (b) Para 26 of PW-11 s deposition Exhibit P-47 was prepared at Bangalore by me and PW-10. After going from Calcutta to Delhi, in Delhi I signed Exhibit P-47 on calling of PW-10. Information given in Exhibit P-47 in respect of the final reward committee was given by PW-10. When Exhibit P-47 was prepared, PW-12 Thampi was also sitting along with us. (c) Para 38 of PW-10 s deposition : It is false to suggest that PW-12 came to Delhi to prepare Exhibit P-51. It is false to suggest that .. PW-12 dictated contents of Exhibit P-51. (d) Para 22 of PW-12 s deposition : Exhibit P-51 was discussed at Bangalore and prepared and typed at Delhi along with PW-10. It is false to suggest that Exhibit P-51 was prepared by PW-10. Myself and PW-10 sat together and prepared Exhibit P-51. It is false to suggest that PW-11 was also there at the time of preparing Exhibit P-51. The above would throw some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by PW-24 that CW-50 gave undertaking (Exhibit P-104) to share the reward with another informer. (b) 1st Informer (i) Thumb impressions marked as Q1, Q2 and Q3 are on the information slip taken at the time of recording of the information on 4-4-1988, disbursement of advance reward of ₹ 44 lakh and disbursement of final reward of ₹ 36 lakh (Exhibits P-21 and P-22). Q4 is the thumb impression on receipt of advance reward disbursement (Exhibit P-25) Q5 is the thumb impression on receipt of final reward disbursement (Exhibit P-23) Q48 is the thumb impression of 1st informer on Exhibit P-30 i.e. source report dated 18-1-1988 enclosed with Accused No. 3 s letter dated 19-1-1988. (ii) The findings of PW-24 are that Q1, Q2, Q3 and Q4 are different from the specimen of PW-25 (para 9 of the deposition and Exhibit P-79) (page 216 of the paper book). Q5 is blurred, smudged and does not contain sufficient number of clear ridge characteristics (para 10 of the deposition) (at page 216 of the paper book). Q2 and Q4 are identical (para 11 of the deposition) (page 216 of the paper book) Q2 and Q4 are different from Q1 and Q3 (para 12 of the deposition and Exhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce contrary to this conclusion is not established by the respondent. Thus, the evidence of PW-24 does not support the case of the respondent, as it confirms (i) the payment of reward to two informers recruited and identified by Accused No. 3 in this case, (ii) that PW-25 is not the first informer, and (iii) that neither appellant, Accused No. 2, Accused No. 3 nor any of their family members have taken the reward amount. Insofar as the allegation that the reward amount of ₹ 80 lakh was shown to have been disbursed to a fictitious informer and misappropriated by the accused is concerned, the prosecution has not disputed the disbursement of the reward amount in a sum of ₹ 20 lakh to CW-50, referred to as the second informer. And from the material on record there was indeed another informer fictitious or otherwise, who had affixed his thumb impressions at the time of disbursement of the reward amount. 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 unus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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