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2017 (8) TMI 981 - HC - CustomsMisappropriation 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.
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