Pardeep Kumar Aggarwal vs Cbi
2011 Latest Caselaw 1156 Del

               *         IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                  Date of Reserve: 21st February, 2011

                                 Date of Order: February 25, 2011

                         + Crl.MB 96/2011 in Crl. Rev. P. No. 34/2011
%                                                                              25.02.2011
         Rakesh Rai                                                   ...Petitioner

         Versus

         State Through CBI                                            ...Respondent

Counsels:

Mr. Manoj D. Taneja for petitioner.
Mr. Vikas Pahwa, Standing Counsel for CBI


AND
                        + Crl.MB 158/2011 in Crl. Rev. P. No. 60/2011
%
          Pardeep Kumar Aggarwal                                      ...Petitioner

         Versus

         CBI                                                          ...Respondent

Counsels:

Mr. K.B. Andley, Sr. Adv. with Mr. M.L. Yadav for petitioner.
Mr. Vikas Pahwa, Standing Counsel for CBI



         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment?

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?


                                              ORDER

1. By this common order, I shall dispose of the applications for suspension of

sentence preferred by the petitioners during pendency of revision petitions against

conviction of Mr. Pradeep Kumar Aggawal under Section 120B read with Section 420

Crl.Rev 34.11&60.11 Page 1 Of 4 IPC and petitioner Rakesh Rai under Section 120B read with Section 420 IPC and under

Section 420 and 468 IPC upheld in appeal.

2. Four persons namely Javed Waqar Merchant @ Mohd. Waqar, Pradeep Kumar

Aggarwal, Rakesh Rai and Smt. Sayesta Bano wife of Javed Waqar were put on trial in

this criminal case before leaned ACMM, Delhi for playing fraud upon the State by

cheating the exchequer on the basis of forged documents, of duty drawback to the tune

of Rs.56,15,480/-. It was alleged that this conspiracy to cheat was hatched up by all the

four accused persons. The main accused was Javed Waqar Merchant, Smt. Sayesta

Bano was his wife and the other accused persons (the petitioners herein) had

participated in the conspiracy. During trial, accused Javed Waqar and his wife Sayesta

Bano became proclaimed offenders and the trial proceeded against the remaining two

accused persons (petitioners). The trial court considered the entire evidence as placed

before it and came to conclusion that the both the accused persons/ petitioners were part

of the conspiracy hatched up to cheat the government and had also benefited from the

conspiracy and got a part of the booty so obtained by cheating. Thus both the petitioners

herein were convicted under Section 120B read with Section 420 as well as under

Section 420 IPC, however, it was found that accused Rakesh Rai had also forged

shipping bills by forging signatures of S.N. Goel, Inspector Customs and Mr. Y.R. Kilana,

Superintendant Customs posted at IGI Airport purported to show that they had inspected

the goods at cargo section and on the basis of such shipping bills, an application for duty

drawback was made.

3. It is submitted by the counsel for the petitioner no original shipping bill could

traced by the investigating agency and only one shipping bills triplicate copy could be

traced and seized during investigation being shipping bill no.080089 and on the basis of

this triplicate copy, the specimen signatures of the accused were compared and that no

such comparison could have been made by the investigating agency with triplicate copy

Crl.Rev 34.11&60.11 Page 2 Of 4 and the trial court could not have relied upon such an evidence since this was no

evidence and even if it was considered evidence, it was a very weak evidence and,

therefore, the conviction of the petitioner Rakesh Rai was bad in law. It is also submitted

by the counsel for the petitioner Rakesh Rai that the offence against the accused

persons were not made out. Similar was the plea of counsel for the petitioner P.K.

Aggarwal who stated that there was no involvement of P.K. Aggarwal and he was

wrongly convicted by the trial court.

4. As far as comparison of signatures with the triplicate copy is concerned, I

consider prima facie there is no illegality in comparison of specimen signatures of the

petitioners with the triplicate copy of the shipping bill. The shipping bill is submitted in

triplicate and signatures put on the first copy appear on remaining two carbon copies

also because of the preparation of bills in triplicate. Thus, there is a surety that the

signatures on the last copy cannot be changed or altered later on and they will have to

be the same as on the first copy and any change would immediately be reflected. Thus,

comparison of signature of the petitioner on the triplicate copy with specimen/ admitted

signature is not a weak evidence or no evidence in the eyes of law. Moreover, it was not

the only evidence on the basis of which the petitioners were convicted and appeal

dismissed. The petitioners were convicted after considering the entire chain of

circumstantial evidence led by the prosecution showing the role of the accused persons.

Both the accused persons/ petitioners had opened fictitious accounts and a party of duty

drawback received was put into these fictitious accounts either directly or indirectly and

withdrawn. Accused Rakesh Rai had opened an account number 18046 with UBI,

Moradabad in the name of M/s Indoptik Exports impersonating himself as Ravi Jain and

through cheques dated 3rd May, 1991 and 13th May, 1991 issued by accused Javed

Waqar Merchant, he received in this account a sum of Rs.3,01,000/- from the account of

M/s Soflense Export, on the basis of whose fake shipping bills, duty drawback was taken

and this money was withdrawn by the accused. Similarly, petitioner Pardeep Kumar

Crl.Rev 34.11&60.11 Page 3 Of 4 Aggarwal who was actually a taxi driver in Moradabad and used to ferry main accused in

his taxi from Moradabad, became part of the conspiracy and he opened a current

account number 18048 on 24th September 1981 in UBI, Station Road, Moradabad in the

name of M/s Indoptik Exports in the name of Ravi Jain. This account of petitioner

Pradeep Kumar Aggarwal was introduced by wife of Javed Waqar accused number 4

and fictitious claims of duty drawback in the name of M/s Indoptik Exports against three

shipping bills number 080088, 080108 and 0800099 all dated 7th March, 1991 amounting

to Rs.2,28,750/- were deposited and this amount was withdrawn by the accused. The

entire chain of evidence about opening of account and withdrawals of money has been

proved.

5. I, therefore, consider that the two petitioners/ accused persons were not entitled

to suspension of sentence. The applications for suspension of sentence are hereby

dismissed. However, the petitions should be heard at an early date since the sentence in

this case awarded is only one year, so that the petitions do not become infructuous. In

case the petitions are not heard early, the petitioners would be at liberty to make another

application for suspension of sentence.

Crl. Rev. P. No. 34/2011 & Crl. Rev. P. No. 60/2011

List these petitions for hearing now on 28th March, 2011.

February 25, 2011                                        SHIV NARAYAN DHINGRA, J
rd




Crl.Rev 34.11&60.11                                                       Page 4 Of 4