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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 ..... he 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 large quantity of gold biscuits with foreign mark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 said to have been entrusted to Accused No. 1 to be carri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 despatched on that day. It is hence alleged that the said accused man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 set aside for the following reasons. It is pointed out that the designated Court has o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant 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 to trace the original by recourse to Section 91 CrPC, has only resulted in the respondent replyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced 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 consistent with the latter portions of their very deposition. And further the said witnesses had not stated so in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis 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 no material produced to demonstrate that Accused No. 2 had acted in active collusion in creating a false scenario leadi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtaking 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 sheet prepared by Accused No. 2 and which accompanied the proposal also did not indicate two informers. After Rs. 55 lakh was sanctioned t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 person and the said amount has been misappropriated by Accused Nos. 1 to 3. All the documents in question had been subjected to FSL examination and signi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 lakh was disbursed to a fictitious informer No. 1, by accused No. 1 issuing a disbursement certificate and accused Nos. 2 & 3 actively colluding in the preparatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 received from a recruit by the particular officer 'running' him, is required to be reduced into the prescribed form, DRI-1, and forwarded in original to the Office of the Directorate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alore 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 Final Reward had been based. The relevant portion, namely para 8 of the deposition of PW-13 reads as under : "I now see DRI-1, which bears my signature and which is already marked as Ex.P.40. My initial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is completely inconsistent with the petition averments. These inconsistent claims of the said witness made him an unreliable witness. The respondent CBI, in opposing the writ petition had contended that PW-25 was not the true info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 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 deposition) (page 222 of the paper book) Q5 is blurred (para 18III of the deposition) (page 223 of the paper book) Q48 on Exhibit P-30 is blurred, smudged and do not contain sufficient number of clear characteristics (para 18III of the deposition) (page 223 of the paper book) (iii) The conclusion of the findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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. In conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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