IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: July 11, 2008
Date of decision: August 14, 2008
CRIMINAL APPEAL No. 334 of 1980
STATE through CBI ... Appellant
Through: Mr. R.M. Tiwari, Advocate.
versus
SIKANDAR LAL JAIN & ORS. .... Respondents
Through : Mr. D.C. Mathur, Senior Advocate
with Mr. Vikram S. Panwar and Ms. Amita
Abraham, Advocates.
CORAM:
HON'BLE DR. JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
JUDGMENT
DR. S. MURALIDHAR
1. This appeal is directed against a judgment dated 16 th May 1980 passed by the learned Additional Sessions Judge („ASJ‟) Delhi in Criminal Appeal No. 2 of 1980 acquitting the respondents of the offences under Sections 120-B read with Sections 420, 467, 468 and 471 IPC, and reversing the judgment dated 24th January 1980 passed by the learned Metropolitan Magistrate („MM‟) convicting the respondents for the said offences.
2. For the offence under Section 420 IPC each of the respondents was sentenced by the learned MM to undergo rigorous imprisonment (RI) for Crl. A. No. 334 of 1980 Page 1 of 11 one year with a fine of Rs.2,000 each and in default of the payment of fine to undergo RI for one year. For the offences under Sections 467, 468, 471 and 120-B IPC, the learned MM sentenced each of them separately to RI for 2 years for each of the offences with varying fine amounts. The sentences were directed to run concurrently.
3. The case of the prosecution is that six accused persons i.e. Sikandar Lal Jain, Madan Lal Jain, Tek Chand Jain, Ram Nath Chopra, Janeshwar Kumar Jain and B.D. Gupta entered into a criminal conspiracy at Delhi and other places in the years 1963-1965 to cheat M/s. S.P. Motors for obtaining 5 TMB chassis in the names of Joginder Kumar, Govind Singh, Tarsem Lal, Subhash Chander and Sushil Kumar on the basis of forged documents. It is stated that in terms of the Commercial Vehicles (Distribution and Sale) Control Order, 1963 („Control Order‟) which was then in force persons desirous of purchasing commercial vehicles had to give details in a form set out in Schedule 2 to the Control Order signed by the applicant. The form was to be submitted to the dealer who was in turn required to maintain a register containing the details.
4. Sikandar Lal Jain (respondent no.1 herein) has been described by the prosecution as the brain behind the conspiracy. Madan Lal Jain and Janeshwar Kumar Jain (Respondents 2 and 3 herein respectively), who were the partners of M/s. Jain Finance Company, have been described as the "master minds behind the scheme." It is stated that on 17th and 30th December 1963 Madan Lal Jain applied to the Central Bank of India, Crl. A. No. 334 of 1980 Page 2 of 11 Chandni Chowk Branch, Delhi for issuance of five Bank Guarantees for Rs.2,000 each in favour of M/s. S.P. Motors, Hubli for the purchase of five TMB chassis in the names of the aforementioned five fictitious persons showing their addresses as that of Madhavpur, Hubli where Sikandar Lal Jain was actually residing. It is alleged that Sikander Lal Jain wrote out the booking application on behalf of the aforementioned fictitious persons and also signed as one of them in one booking application. He also purchased non-judicial stamp papers for arranging five powers of attorney (POA). He also signed one of the POAs as Govind Singh. Delivery of the vehicles/chassis was obtained by Sikander Lal Jain. The vehicles/chassis were registered with the RTO, Dharwad in the names of the fictitious persons and later sold in the market to various persons at a higher price in violation of the Control Order.
5. An FIR was registered on 7th July 1970. By this time the Control Order had been repealed. The Central Bureau of Investigation (CBI), which was entrusted with the investigation, filed a chargesheet on 17 th February 1972. One of the accused B.D Gupta was discharged by an order dated 21st May 1976 of the learned MM. Two other, Tek Chand Jain and Ram Nath, died before the trial commenced. The trial proceeded against the remaining three accused (the respondents 1 to 3 herein). The CBI examined 39 witnesses. The defence examined five witnesses. By the judgment dated 24th January 1980, the learned MM convicted the three respondents in the manner hereinbefore indicated. The said conviction and sentence were reversed by the learned ASJ by the impugned judgment dated 16th May 1980. Hence this appeal by the State through the CBI. Crl. A. No. 334 of 1980 Page 3 of 11 Leave to appeal was granted by this Court on 10th November 1980. The appeal was listed for final hearing thereafter only on 23rd August 2004. It was dismissed for default twice on 24th February 2005 and 10th September 2007 and then restored on the application of the CBI. 5.1 It is contended by Mr. R.M. Tiwari, learned Senior standing counsel appearing for the CBI that the learned ASJ erred in concluding that no prosecution could be initiated for violation of the Control Order after its repeal in 1967. Relying on the judgment dated 23rd July 1980 of this Court in Criminal Appeal No. 165 of 1973 [State (Delhi Administration) v. Mangat Singh] it is submitted that the liability for the contravention of the Control Order continued even after it was rescinded. The prosecution was valid as long as the act complained of took place during the pendency of the Control Order. Next, he submits that the learned ASJ erred in holding that separate charges were required to be framed against each of the accused. According to him the charges were read out in detail to each of the accused at the time of recording their pleas and in any event this was at best an irregularity that did not vitiate the trial.
5.2 Mr.Tiwari submits that the learned ASJ erred in holding that the Priority Booking Register had not been proved by the prosecution when in fact it was produced and marked as Ex.1 during the trial. As regards the prosecution having to prove wrongful gain or wrongful loss, he submits that the accused wrongfully gained by selling the chassis in the open market at a higher price. Correspondingly, there was a wrongful loss Crl. A. No. 334 of 1980 Page 4 of 11 caused to the five persons in the waiting list instead of whom the five fictitious persons were allotted the chassis.
5.3 It is submitted that the evidence of PW 22, the expert on questioned documents, proves that the handwriting on the form is that of S.L.Jain and that the evidence of PW 30, the stamp vendor, confirms that the stamp papers were purchased by him. Reference is made to the answers given by S.L.Jain to the questions put to him under Section 313 CrPC to contend that he did not deny his handwriting on the incriminating documents. Reliance is also placed on the decision of the Supreme Court in G.S. Bansal v. The Delhi Administration AIR 1963 SC 1577. 6.1 On behalf of the respondents it is submitted by Shri D.C. Mathur, learned Senior counsel that the FIR was itself registered three years after the Control Order was rescinded and seven years after the alleged events took place. This delay in launching prosecution was not sufficiently explained. Relying on State v. Jagamander Das AIR 1954 SC 683, Madan Lal Batra v. State 1982 (11) FAC 155 and S. Krishnan v. State of Madras AIR 1951 SC 301 it is submitted that the proceedings under the Control Order could not be initiated after it was rescinded. 6.2 It was further submitted that the offence was really of the violation of the Industries (Development and Regulation) Act 1951 (ID&R Act) under which the Control Order was issued. The penal provision is Section 24 which prescribes a maximum punishment of 6 months. This would Crl. A. No. 334 of 1980 Page 5 of 11 attract the limitation period under Section 468 CrPC. Further, the corresponding offence of criminal conspiracy would be under Section 120 B (2) IPC which required previous sanction of the Sate Government. Inasmuch as there was no such sanction, the prosecution for the offence under Section 120 B was bad in law.
6.3 Next it is submitted that the acquittal of the respondents by the learned ASJ was continuing for a period of 28 years. It was 45 years since the alleged offences were committed. The respondent accused are now senior citizens and little purpose would be served if the acquittal were to be reversed at this stage. Reliance is placed on the decision of this Court in State v. Devinder Kumar 2008 (2) JCC 1164.
6.4 On merits, Mr.Mathur submits that there is no material to connect Respondents 2 and 3 with the offences. They have been roped in only as partners of a finance firm which itself has not been arraigned as accused. Reliance is placed on the judgment of this Court in Ashok Sikka v. State 2008 (1) JCC 577. Further, although the respondents No. 2 and 3 were charged only under Section 120 B IPC read with Sections 420/467/468 and 471 IPC, yet they were convicted and sentenced separately by the learned MM for the substantive offences as well.
6.5 The case of the prosecution that purchase of the vehicles had been made in the name of the fictitious persons was belied by the fact that three of them, viz., Sushil Kumar, Joginder Kumar and Gobind Singh appeared Crl. A. No. 334 of 1980 Page 6 of 11 as defence witnesses and stated in their testimonies that they had authorized Sikandar Lal Jain to apply on their behalf for purchasing chassis. Further, unless the criminal intent of the maker of the forged documents is established no charge of forgery can be sustained. Reliance is placed on the decision of the Supreme Court in Vimla v. Delhi Administration AIR 1963 SC 1572. The testimony of the defence witnesses prove that the element of dishonest intention which is a sine qua non for the offence under Sections 468 and 471 IPC was absent in the present case. It is submitted that the case of the prosecution that M/s. S.P. Motors suffered monetary loss is disproved by the evidence of PW-2 Antony Fernandes and PW-36 Dadi Damwala, the partner. There was no complaint by M/s. S.P. Motors, Hubli against the respondents herein alleging any act of cheating.
7. This Court has carefully examined the records of the case and considered the submissions of the learned counsel for the parties.
8. The pleas of the defence can be broadly classified as being on technical grounds and on merits. The first of the technical grounds is that the prosecution could not been initiated after the Control Order was rescinded. The learned ASJ has accepted the plea by relying on the decisions in State v. Jagamander Das (supra) and S. Krishnan v. State of Madras (supra). In the said cases the Act under which the offences were defined was itself repealed and in those circumstances the Supreme Court held that the prosecution could not have been initiated thereafter. Crl. A. No. 334 of 1980 Page 7 of 11 However, in the present case neither the IPC, for offences under which the prosecution was launched, nor the ID&R Act under which the Control Order was issued, were repealed. Therefore, the ratio of the decision of this Court in Mangat Singh appears to apply in the instant case and the prosecution cannot be said to be bad in law only because it was initiated after the Control Order was rescinded. To this extent there is merit in the contention of the appellant.
9. As regards the plea that without prior sanction under Section 196 (2) CrPC, the prosecution under Section 120 B (2) IPC is bad in law, it may be mentioned that the offence is not exclusively under Section 24 ID&R Act as contended by the accused but under Section 120 B IPC read with Sections 420, 467, 468 and 471 IPC. Moreover, in Bhanwar Singh v. State of Rajasthan AIR 1968 SC 709 it was held that the mere absence of prior sanction would not vitiate the trial. The error if any in not framing charges separately against the accused for each substantive offence for which they were convicted is an irregularity which, in terms of Sections 464 and 465 CrPC, need not vitiate the trial itself.
10. While the prosecution may not fail only because the Control Order stands rescinded, the accused are justified in their contention that the prosecution has not been able to satisfactorily explain the delay of seven years in registering the FIR and a further delay of two years in filing the charge sheet. Also, the court cannot be unmindful of the fact that the acquittal of the respondents has subsisted for more than 28 years and that Crl. A. No. 334 of 1980 Page 8 of 11 more than 45 years have gone by since the commission of the alleged offences. It is nobody‟s case that the accused have in any manner delayed either the trial or the appeal. Nevertheless, this Court has also examined the evidence to ascertain if there are sufficient grounds on merits to sustain a conviction.
11. This Court first takes up the case against respondents 2 and 3. The learned Senior counsel for the respondents is right in the contention that no specific role has been attributed to either of them to connect them with the offences in question. They appear to have been roped in because they happened to be the partners of Jain Finance Company which financed the purchases of the chassis. However, the said firm has itself not been arraigned as an accused. In Maksud Saiyed v. State of Gujarat 2007 (1) SCALE 318 the Supreme Court was considering the question whether a vicarious liability could attach to the director of a company, where the company is a principal accused. Holding that the concept of vicarious liability of directors is alien to the IPC, the Supreme Court explained that in the absence of specific allegations against the directors individually, they could not be prosecuted for an IPC offence. This would equally apply in the present case where in the absence of the firm being made an accused, its individual partners cannot be charged with IPC offences. There is no evidence to show that respondents 2 and 3 were themselves individually involved in the commission of the offences or the offence of conspiracy. The prosecution has attributed all the substantive acts to accused No.1 Sikander Lal Jain. Therefore, the conclusion of the learned ASJ in the impugned order acquitting respondents 2 and 3 cannot be Crl. A. No. 334 of 1980 Page 9 of 11 faulted with. No case is therefore made out for interfering with the acquittal of the respondents No.2 and 3.
12. Turning to the first respondent, it needs to be recalled that one of the key elements of Section 420 IPC as well as Sections 468 and 471 IPC is dishonest intention. The major limb of the prosecution story is that the five persons in whose names the chassis were purchased were all fictitious. This is totally belied by the evidence of three of them who appeared at the trial as defence witnesses. They have deposed that they authorized accused No.1 S.L.Jain to act on their behalf for obtaining the chassis. This, to a considerable extent, takes away the very basis of the prosecution story. In the light of this evidence, it would be unsafe to draw an inference of dishonest intention of the accused only on the basis of the evidence of PWs 22 and 30. In this context the learned ASJ was right in placing reliance on the decision in Dr.Vimla v. Delhi Admn (supra).
13. As far as Section 420 IPC is concerned the prosecution must show that wrongful loss had been caused to the victim and that the accused had wrongfully gained. The evidence brought on record in the form of PW-2 Antony Fernandes and PW-36 Dadi Damwala indicates that no wrongful loss was caused to M/s. S.P. Motors by the actions of respondents 1 to 3. As regards any loss to those in the waiting list, the learned ASJ has rightly observed that no such waiting list has been shown to exist. Further, although it contends that the chassis were sold in the market at a higher price, the prosecution has not been able to produce evidence to show that Crl. A. No. 334 of 1980 Page 10 of 11 there was any wrongful gain to respondent No.1 himself. Therefore, the decision in G.S.Bansal is distinguishable on facts.
14. On an overall consideration of the evidence on record it is required to be seen if the prosecution has been able to bring home the guilt of the accused beyond reasonable doubt or whether there is material to give benefit of doubt to the accused. From the evidence produced by the prosecution in the present case, and in light of the unexplained delay in even registering the case against him, the accused Sikandar Lal Jain would be entitled to the benefit of doubt. The charges against him cannot be said to have been proved beyond reasonable doubt.
15. For the aforementioned reasons, the acquittal of the respondents by the impugned judgment of the learned ASJ is hereby upheld. The appeal is accordingly dismissed with no order as to costs.
S. MURALIDHAR, J.
AUGUST 14, 2008 rk/dn Crl. A. No. 334 of 1980 Page 11 of 11