TaxTMI 
TaxTMI 
2025 (2) TMI 1105
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....ar Maroria, AOR Mr. Sachin Sharma, Adv. Ms. Suhasini Sen, Adv. Mr. Chinmayee Chandra, Adv. Mr. Siddhant Kohli, Adv. Mr. Vinayak Sharma, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Siddharth Dharmadhikari, Adv. Mr. Sourav Singh, Adv. Mr. Chand Qureshi, AOR JUDGMENT PRASHANT KUMAR MISHRA, J. 1. These criminal appeals are disposed of by this common order as they are directed against the common judgment and order dated 16.07.2009 of the High Court of Judicature at Bombay whereunder the High Court dismissed the appeal of the appellant/Hiralal Babulal Soni (Criminal Appeal Nos. 579-580/2012) and the appeal of the appellant/accused No. 3 namely, Nandkumar Babulal Soni, (Criminal Appeal No. 581-583/2012) whereas the appeals of Mr. S.K. Sheenappa Rai (accused no.1), Devdas Shetty (accused no.2) and Vijaya Bank were allowed. We shall later notice the conviction and sentence awarded by the courts below. 2. The offence pertains to commission of fraud by remittance through fake Telegraphic Transfers "TT" and subsequent withdrawals to the tune of Rs. 6,70,00,000/- at Vijaya Bank, Nasik Branch, Maharashtra. 2.1 On 30.01.1997, one person disclosing as a representative of M/s. Gl....
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....sed Mukesh Shah and accused no. 3 to whom gold bars were delivered from M/s. CN. On 01.06.2001, a search was carried out at the shop of accused no. 3 effecting seizure of 205 gold bars and other documents. Thus, chargesheet was filed against accused no. 1 (S.K.Sheenappa Rai), accused no. 2 (M. Devdas Shetty), accused no. 3 (Nandkumar Babulal Soni) whereas accused no. 4 (Mayur Desai @ Mukesh Shah @ M.P. Jain @ Mukesh Jain) could not be traced and declared proclaimed offender by the Trial Court on 12.02.2002. 4. The Trial Court framed charges against the accused persons for offences under Section 120B read with Sections 403, 409, 411, 420, 471, 477A and 109 of the Indian Penal Code, 1860 'IPC' read with Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988. While the accused nos. 1 and 2 submitted that they are innocent; the account was opened as per the banking procedure; they have been given a clean chit in the departmental inquiry conducted by the Vijaya Bank. The accused no. 3 set up a defence that he has no connection with either M/s.CN or with Mukesh Shah @ Mayur Desai and, thus, he is falsely implicated without there being any evidence agains....
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....pellant(s) has vehemently argued that the appellant is wrongly convicted for the offence under Section 411 of the IPC without there being any evidence against him. It is put forth by him that incomplete chain of circumstantial evidence has been relied upon for appellant's conviction which is legally unsustainable, and the appellant has been convicted only on the basis of suspicion. According to him, the yawning gap between the charge for the offence under Section 411 of the IPC and the evidence adduced by the prosecution. Learned counsel referred to the judgment in the matter of 'Kamal vs. State (NCT of Delhi) 2023 INSC 678. 9. Mr. A.P. Singh, learned counsel appearing for the Vijaya Bank/appellant has argued that since the gold bars have been acquired by using forged TTs/DDs by defrauding the bank, the gold bars should be returned to the bank. Learned counsel appearing on behalf of the appellant/Hiralal Babulal Soni has also prayed that on the basis of evidence on record, appellant/Hiralal Babulal Soni is entitled for return of the gold bars. 10. Per Contra, Ms. Suhasini Sen, learned counsel for the respondent (CBI) has argued that there is independent evidence on record to ....
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.... and Mayurkumar Manubhai Desai @ M.J. Shah @ M.P. Jain @ Mukesh Jain @ Mukesh Shah. 14. Mayurkumar Manubhai Desai @ M.J. Shah @ M.P. Jain @ Mukesh Jain @ Mukesh Shah was involved in cash withdrawals of Rs. 98,00,000/- at Vijaya Bank, Nasik Branch. 15. A sum of Rs. 2,59,78,504/- was withdrawn by preparing demand drafts in favour of M/s. CN and M/s. V.B. Jewellers by Mayurkumar Manubhai Desai @ M.J. Shah @ M.P. Jain @ Mukesh Jain @ Mukesh Shah. These demand drafts were honoured by Vijaya Bank, Fort Branch, Mumbai and Tamil Nadu Mercantile Bank, Mandvi Branch upon withdrawal of the said amount from the account of M/s. Globe International. The amount involved in these demand drafts were allegedly used against purchase of seized gold bars. Discovery of fraud and investigation : 16. The accused no. 1 became suspicious of the transactions taking place in the account of M/s. Globe International. On 12.08.1997, he informed Vijaya Bank, Fort Branch, Mumbai about the fraud and the resultant payment against 19 demand drafts amounting to Rs. 1,61,44,000/- was stopped. On this date, there was a balance of Rs. 1,53,27,178/- in the account of M/s. Globe International, as against the to....
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....-32-Ashok Kumar Bhavarlal Jain (owner of M/s. V.B. Jewellers) and PW-33-Chandramohan A. Shetty (Investigating Officer). To establish the identity of the gold bars, the prosecution examined PW-24 (Manish Srivastav), PW-25 (Sudhakar Tamhane), PW-27 (Dr. Piyush Bhansali), PW- 29 (Bien Nanavati) and PW-31 (Vinod Kumar Niranjanlal Jain). 21. The Trial Court having noted that the charge against appellant/Accused No. 3 is mainly for receiving dishonestly stolen property, recorded a finding in Para 94 of the judgment that the prosecution admittedly, have not brought any evidence against appellant/Accused No. 3 in respect of the first part of the conspiracy i.e. receipt and coding, decoding of TTs. The evidence of the aforementioned witnesses on the charge of conspiracy revolves around Mukesh Shah @ Mayur Desai (absconding), who purchased the gold bars along with appellant/Accused No.3. It is said that Mukesh Shah delivered the demand drafts to the appellant/Accused No.3 and appellant/Accused No.3 in turn delivered the said drafts to M/s. CN. The Trial Court mainly relied on Exhibit 119, a letter written by PW-26 (Prakash Jain) to the CBI on 02.01.2002 giving details of the markings of g....
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....kar Tamhane), PW-27 (Dr. Piyush Bhansali), PW-28 (Anichandra Mahadeorao Bhujade), PW-29 (Biren Vinodchandra Nanavati) and PW-31 (Vinodkumar Niranjanlal Jain). The prosecution tried to establish the negative fact that the gold claimed was not purchased from the brother of appellant/accused no. 3 i.e. Ambalal Soni who was also examined as defence witness. On the contrary, appellant/accused no. 3 set up a defence firstly, that there is a delay of four years in finding out the property though the name of appellant/accused no. 3 was already disclosed to the police much earlier, secondly, appellant/accused no. 3 himself is a jeweller and, thirdly, the gold bars are not proved to be the same stolen property due to the difference of markings. 24. The Trial Court discussed the statements of the above witnesses and the documentary evidence in detail and observed thus in para 115: "115. Letter Exh 119 was given by Chenajee Narsingjee to CBI in 2002. At that time the prosecution was aware that the gold bars which are seized and produced before the court are of different brands. Prosecution ought to have been produced evidence to show that there was a stock of the same brands with C....
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....rding the seizure of 205 gold bars from him) that these were legally acquired by him, the High Court proceeded to examine as to whether he has proved lawful acquisition of the gold bars and eventually concluded that the appellant/accused no. 3 has failed to prove his case about the acquisition of the seized gold from DW-1 (Ambalal), owner of M/s. Babulalji Bhutaji Soni. The finding was recorded despite observing that the witnesses PW- 19, PW-21, PW-22, PW-26 and PW-32 have not fully supported the prosecution and have stated that against the demand drafts drawn in the name of M/s. CN and M/s. V.B. Jewellers, the gold was delivered to Mukesh Shah. It is also noted that M/s. CN was admittedly dealing with the appellant/accused no. 3 and the letter written by M/s. CN was endorsed to the appellant/accused no. 3 and further that the witnesses relating to M/s. CN have stated before the court that the gold which forms muddemal property was not the one which was sold by the said firm to Mukesh Shah of M/s. Globe International against the tainted demand drafts. It seems, the High Court was impressed with the fact that at the time of search, the appellant/accused no. 3 resisted the CBI by ....
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....ble doubt. This Court in "Kamal vs. State (NCT of Delhi)" (supra) has held thus:- " 18. It can thus be seen that this Court has held that the circumstances from which the conclusion of guilt is to be drawn should be fully established. It has been held that the circumstances concerned "must or should" and not "may be" established. It has been held that there is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved". It has been held that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has been held that the circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one sought to be proved, and that there must be a chain of evidence so complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have ....
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....iling the legality of the guilty verdict against the appellant, Mr Lav Kumar Agrawal, the learned counsel would submit that the essential ingredients of Section 411 IPC offence are not at all made out as the prosecution has failed to adduce any evidence to show that the accused had knowledge that the seized articles were stolen from the looted truck. It is, therefore, argued that unless the knowledge of the accused on the nature of the articles sold by them is established, his conviction under Section 411 IPC cannot be sustained in law. 13. In this case, although recovery of items was made, the prosecution must further establish the essential ingredient of knowledge of the appellant that such goods are stolen property. Reliance solely upon the disclosure statement of accused Raju alias Rajendra and Sadhu alias Vijaybhan Singh will not otherwise be clinching, for the conviction under Section 411 IPC. 16. To establish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was st....
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....tantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused." 37. Significantly, the Trial Court has held that in para 115 that the prosecution ought to have produced evidence to show that there was a stock of the same brand with M/s. CN and out of that stock some gold bars with markings of Harmony Suisse, Johnson Mathew, Arya were sold to M/s. Globe International. In the absence of this evidence and especially due to delay of four years in the recovery of the property the very basis of its identification is found shattered, and the possibility of mistaken identification cannot be ruled out. With this finding of the Trial Court, invocation of Section 114 of the Evidence Act is not at all permissible since the prosecution has failed to discharge its initial burden. The weakness in the defence or the appellant's failure to substantiate the fact while answering question (no. 133) in his accused statement cannot become t....