ANIL MAHESHWARI Vs. CBI

JUDGEMENT

(1.) Crl.M.A. 442/2013 in Crl.A. 1455/2011

(2.) Learned counsel for the Appellant Anil Maheshwari submits that the presumption under Section 20 of the PC Act is not available to the prosecution as the Appellant and the co-accused have been convicted for a conspiracy for offence under Section 13(1)(d) read with Section 13(2) PC Act. Further the learned Trial Court erroneously invoked Section 106 Evidence Act. Section 106 Evidence Act is an exception to the general rule of evidence under Section 101 Evidence Act. The duty to prove the facts lies on the party who alleges. The evidence of two prosecution witnesses examined by the prosecution does not prove beyond reasonable doubt that the shop of the Appellant does not exist at 3499 Chawri Bazar. 1716 Gali Piou Wali, Dariba is the residential address of the Appellant and is mentioned in the bank account as the Appellant's firm is a proprietorship firm. Merely because the address of the firm was not given, the firm does not become non-existent. No efforts were made by the investigating agency to check from the telephone number on the letter heads of the firm to verify the existence of the shop at 3499, Chawri Bazar which would have been an authentic proof. Merely two witnesses in the neighbourhood have been examined which does not rule out the presence of the shop of the Appellant. PW2 Lalit Chawla in his cross-examination has admitted that 3499 is a building and there are number of other shops in the said building. He does not know who are the other persons running different shops in the said building. Further PW3 Sushant Rastogi says that he has no knowledge about the shop. He is not even running a shop in the said building and is running a short in a distant building. In view of the number of shops in each small building in Chawri Bazar it cannot be expected of any businessmen to know all the occupants of a building, what to say of those running business from a different buildings. The prosecution having not proved the non-existence of the firm M/s. Supreme Trading Corporation beyond reasonable doubt, the learned Trial Court erred in shifting the onus on the Appellant under Section 106 Evidence Act. Further it is not the case of the prosecution that the goods were not dispatched by the Appellant from Delhi. PW10 Trilok Nath Bhatia In-charge, railway booking proved that goods were dispatched through railway receipts to Rajan Enterprises, Ernakulam. The learned Trial Court failed to deal with this issue. As a matter of fact the learned Trial Court has not dealt with any of the issues and without giving the reasons, findings have been arrived at. Once the tracer found the goods to have lost at Erode Station, he was not required to go to Ernakulam and thus no fault can be found in the tracer's report. The finding of the learned Trial Court that there was a fake consignee and the tracer's report was false is based on no evidence. Though the Appellant is not the author of the tracer's report, still the Appellant is convicted substantively for offence under Section 420 IPC. An essential ingredient of Section 468 IPC is an element of impersonation i.e. the document is signed by the wrong person which is not the case herein. Hence the provisions invoked are not attracted. Reliance is placed on Mohd. Ibrahim Vs. State of Bihar, 2009 8 SCC 751. PW15 K.V.P. Namboothiri does not prove that the consignee was a non-existent firm. He merely states that he could not locate the address. Once there is loss of goods, there could be no cheating in Insurance crediting money to the Appellant's account. There is no evidence of meeting of minds and thus the Appellant cannot be convicted for offence of conspiracy.

(3.) The learned Trial Court erroneously held that it was the duty of the Appellant to prove consignee's existence. Relying on Shambu Nath Mehra Vs. State of Ajmer,1956 SCR 1999 it is contended that Section 106 casts the onus to prove the facts especially in the knowledge of the accused. The prosecution cannot investigate half-heartedly, not prove the facts which it could have proved and then shift the onus under Section 106 Evidence Act on the accused. Further even if the onus is on the accused, the accused has to prove not beyond reasonable doubt but by the preponderance of probability and the same can be done even by cross-examining the prosecution witnesses. PW1 in his testimony admits that he located M/s. Supreme Trading Corporation at 1716 Gali Piou Wali, Dariba and thus the finding that it was a non-existent firm is incorrect. The evidence of PW18 Inspector B.S. Bhist CBI that he went and could not locate the address is inconclusive. Telephone number appears on the invoice and all communications. Since the bank account was operational, the firm cannot be said to be non-existent. At best it could be said to be a case of incorrect address. Further PW11 Rajesh Bali, the officer from the bank has stated that the account in question was opened on 17.08.1990 and closed on 17th July, 1999. The account in question being in operation for more than 9 years, no adverse inference of conduct of closing of the account after receiving the insurance amount could be drawn by the prosecution. The three addresses were not put to the Appellant under Section 313 Cr.P.C. and thus the same cannot be used against him. Further the non-delivery certificate was also not put under Section 313 Cr.P.C. to the Appellant Kuldeep Singh Vs. State of Delhi, 2003 12 SCC 528. There is no specific finding as to which communication of Rajan Enterprises is forged. The railway receipt is not proved to be a forged document. There is no evidence on record as to what was the fate of parcels sent from Delhi. Since there is no evidence that the goods were duly delivered at Ernakulam, the finding of the false claim is incorrect. As regards Rajan Enterprises, the only evidence is of PW15 which is also a hearsay evidence. No postal officer has been examined. PW22 did not go personally over there. The initial letter requesting for verification was not placed on record, so what verification was sought is not known.