TaxTMI 
TaxTMI 
2017 (8) TMI 981
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....em 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 activity of smuggling of contraband, along the shores of the country. A primary feature of this arrangement was that the identity of the informer would not be known except to a single officer of the Department, through whom such secret information would be conveyed. And that the name of the informer would not be revealed in the official records. This was to protect the informer from retaliation by persons who would be affected and also to ensure that his utility as an informer was not put to an end by exposing his identity. In the instant case, it is stated that Accused No. 3 had cultivated an informer and the secret information provided by him, is said to have been conveyed to Accused No. 2 and this is said to have led to a successful trap and seizure of a l....
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....ne 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. However, Accused No. 1 who had made two disbursements as noticed above, had issued a single certificate, certifying the payment of Rs. 55 lakh to a single informer as on 1-8-1988, whereas the reward amount was said to have been split between two informers in a sum of Rs. 45 lakh and Rs. 11 lakh, respectively, as stated above. It is further alleged that on 4-1-1989, Accused No. 2 had written to Accused No. 1 as to the payment of the final reward amount to the informer. This was said to have been brought before the Final Reward Committee, of which Accused No. 1 was himself a member. The recommendation was said to have been accepted and the balance amount of Rs. 45 lakh was approved to be disbursed at the meeting of the Committee dated 1-2-1989. The file pertaining to the same was ....
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....t 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 Rs. 44 lakh and Rs. 36 lakh did not tally and that the said impressions differed from the left thumb impression appearing on the information slip dated 4-4-1988. But in respect of informer No. 2, the left thumb impression obtained on the cash receipt of Rs. 11 lakh and Rs. 9 lakh is said to have tallied with the left thumb impression obtained on the source information slip dated 4-4-1988. It was also alleged by the prosecution that a diary maintained and known as XT-1 diary of the officers posted at Kundapur, indicated that Accused No. 3 was not present at his residence in Kundapur on 4-4-1988. However, he had claimed that he had received information from Informer Nos. 1 & 2 at his residence on the said day. He is alleged to have hence made interpolations in the despatch register to create an impression that the source information dated 4-4-1988 recorded by him was despatched to Accused No. 2 on 5-4-1988, although it was not despa....
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....riminal 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 dishonestly misappropriated for their own use the funds entrusted to them or under their control as public servants by abusing their official position as public servants for obtaining pecuniary advantage so as to constitute offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988?" The Court below has answered all the points in the affirmative and convicted the accused. It is that which is under challenge, in separate appeals, by each of the accused. 4. The learned counsel Shri Kiran Javali, appearing for the appellants in Crl.A. 985/2009 (Accused No. 1) and in Crl.A. 988/2009, would contend that the judgment of the Court below is liable to be s....
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....stoms, 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 Exhibit P-77(a) has been tampered with. Further PW-23, PW-13 and PW-15 have in their deposition affirmed that there has been due compliance. And hence it is firmly established that the procedure has been strictly complied with. It is contended that as regards the original of the DRI-1 that was forwarded to the Headquarters of the DRI, New Delhi, stood established by Exhibit P-77(a). PW-48 has stated in his deposition (paragraph 16) that he had not chosen to record the statement of any person at the office of the Director General, DRI, New Delhi or the Office of the DRI Bangalore of the receipt of the said document from Bangalore. It is also pointed out that the effort of the appellant t....
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....t 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 pointed out that the language of the document clearly refers to the "informers" involved, in the plural. The same has been duly signed by PW-10 & PW-11. But in the evidence, it is their stand that there are interpolations made in the document to make it seem thus. There is no evidence tendered, however, to establish this fact. On the contrary, PW-48 has categorically confirmed the absence of any tampering of Exhibit P-41. (Ref. paragraph 21 of deposition). It is also pointed out that though there was no charge framed as regards the alleged tampering of the above document, it is only in the course of evidence of PW-10 and PW-11 that such a version is sought to be projected, which is not consiste....
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....sing 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 PW-11, 12 and 13, did not justify the finding of guilt against the appellant. On the other hand, the despatch of the original copy of DRI-1 to New Delhi and Bangalore had been established by the document at Exhibit P-77(a), which is not a disputed document. Therefore, it is contended that the theory of falsification or destruction of the original DRI-1 is not established but on the other hand would stand defeated. It is contended that no material was brought on record to demonstrate that Exhibit P-40 was a false document or that the original of DRI-1 was destroyed or falsified. Further, all pre-seizure collection of information was shown to be exclusively by Accused No. 3 and there is n....
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.... 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 reward of Rs. 55 lakh, it was in respect of a single informer. As the amount involved was beyond the financial power of Accused No. 1, to whom the proposal was sent, it was placed before the Advance Reward Committee, consisting of PW-10, PW-11, Accused No. 1 and Accused No. 2. That the Committee had considered the proposal and approved the advance reward amount to be paid to a single informer. Minutes of the meeting, signed by all the above members had affirmed this. On the other hand, if there were more than one informer, the Minutes would have reflected the role played by each informer and the quantum of the reward apportioned to each informer would have been reflected. The work she....
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....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 Rs. 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 Rs. 45 lakh in favour of the AO, Mangalore and the same was sent on 15-11-1989. On 17-11-1989, PW-5 is said to have encashed the same and is said to have handed over the cash to Accused No. 2 at his residence. On 18-11-1989, Accused Nos. 1 to 3 are said to have proceeded to Udupi along with the cash. Accused No. 1 is said to have split the cash into two components of Rs. 36 lakh and Rs. 9 lakh, and is said to have disbursed it to fictitious persons, whose thumb impressions are said to have been witnessed by Accused Nos. 2 & 3. Accused No. 1 is then said to have issued a disbursement certificate indicating the payment of one component of Rs. 45 lakh. It is thus contended that the so-called informer No. 1 to whom Rs. 80 lakh had been paid, was a fictitious perso....
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.... 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 recruiting him, in this case - appellant No. 3, and apart from the thumb impression there are no other details of the informer - and it is only the recruiting officer who would be privy to any other particulars of the informer) there was only one informer and it was not indicated that the same would be apportioned between more than one informer. The minutes of the meeting of the Committee, it was claimed, also did not reflect that there was more than one informer. It was hence alleged that these appellants falsified the information slip, on which the secret information received is said to be recorded, the DRI-1, Payment vouchers and the despatch Register maintained in the office of the Customs at Kundapur and made it seem that the advance reward amount of Rs. 44 ....
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.... 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 superior posted of such information gathered from time to time. But there is no indication that Accused No. 1 was in any manner involved. The conspiracy if any, as alleged is capable of being asserted only in respect of a period subsequent to the seizure as on 7-4-1988 and not earlier. The evidence on record does not support the theory of conspiracy before the said date. On information being gathered from time to time, the same has been reduced as an information slip to which the alleged informers have subscribed their left thumb impressions and the said document is marked as Exhibit P-21. Of the two sets of thumb impressions, one set belonged to CW-50, one of the informers. This is not in dispute. In terms of the Customs Preventive Manual, (Exhibit P-63) the secret information rec....
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....angalore, 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 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 Fi....
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....eem 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 however, sought to be made out on the basis of the same. The document was very much in the custody of PW-13 and PW-15, before and after the Advance Reward Committee meeting, any tampering of the document could not have been carried out without their knowledge or active connivance. 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 ....
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....ate 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 Exhibit P-58, dated 18-11-1989, about disbursement of the award amount to two informers. Further the copies of DRI-1, as per Exhibit P-40, D-1, D-2(d), P-47(e-1) and P-51(h-1) refer to informers and is also endorsed by witnesses who have spoken to the same. The prosecution seeking to urge that PW-25 was indeed the true and only informer and ought to have received the award, is contrary to its own stand. The said witness had himself stated that CW-50 was another informer. The said PW-25 who had filed a writ petition staking his claim to the reward had categorically claimed that he had not affixed his thumb impression to any receipts and that only the thumb impressions of CW-50 had been obtained. The said petition was filed much prior to the filing of the FIR and his deposition i....
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....e 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 doubt on the veracity of the statements of the said witnesses. It is also seen that during the investigation, the residences of all the accused as well as CW-50 has been searched. Significantly, neither the CBI Officer who is said to have searched the residence of the office of Accused No. 1 nor the witnesses to the search have been examined by the prosecution. It is also seen that the material seized during the search have been returned. The bank lockers and the bank accounts of the said accused and his family members, which were sealed and frozen have been reversed. He has never been arrested at the time of search or thereafter. In so far as the evidence of the finger print expert (PW-24) is concerned, the following particulars emerge fr....
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....hat 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 Exhibit P-81) (page 217 of the paper book) Q1 and Q3 do not admit inter se comparison (para 13 of the deposition) (page 217 of the paper book) Q1, Q2, Q3 and Q4 are different from the specimen thumb impressions of Accused Nos. 1, 2, 3 and their family members (para 17(1) of the deposition) (page 220 of the paper book). Q5 is blurred (para 17(2) of the deposition) (page 220 of the paper book) Some specimen finger prints are not clear (para 17(3) of the deposition) (page 220 of the paper book) Q1, Q3, Q5 and Q48 are left thumb impressions (para 18I(ii) of the deposition) (page 222 of the paper book) Q2 and Q4 - it is not possible to say whether they are right hand or left hand thumb impressions (para 18I(iii) of the deposit....
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....nd 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 unusual circumstance. It is seen from the record that the Investigating Officer had called upon the Accused to produce the informers before him. (Exhibits P-131, P-132 & P-133). Accused No. 1 is said to replied (Exhibit P-134) to state that he neither knew their identity nor was expected to know the same and hence could not comply. Accused Nos. 2 & 3, are also said to have been instructed by the Central Board of Excise and Customs not to disclose the identity of the informers to the CBI. (Exhibits P-135 & P-136 as well as Exhibits D-3 and D-4) This was in conformity with Section 25 of the Evidence Act, 1872, which lays down to that effect. Conversely, no adverse inference could be drawn of the non-existence of one of the informers. Hence th....