Mahesh Maheshwari vs Central Bureau Of Investigation
2015 Latest Caselaw 7033 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Judgment :17.09.2015
+      CRL.A. 898/2015
       MAHESH MAHESHWARI
                                                              ..... Appellant
                             Through        Mr.Ramesh Gupta, Sr.Adv. with
                                            Mr.Hemant, Adv.

                             versus

       CENTRAL BUREAU OF INVESTIGATION
                                                               ..... Respondent
                             Through        Ms. Rajdipa Behura, SPP with
                                            Ms.Monica Gupta and Ms.
                                            Sanskriti Jain, Advs.
+      CRL.A. 916/2015
       C SANGIT
                                                              ..... Appellant
                             Through        Mr. Mohit Mathur, Sr. Adv. with
                                            Mr. Anil Thakur and Mr. Shishir
                                            Mathur, Advs.
                             versus
       CBI
                                                               ..... Respondent
                             Through        Ms. Rajdipa Behura, SPP with
                                            Ms.Monica Gupta and Ms.
                                            Sanskriti Jain, Advs.
+      CRL.A. 917/2015
       TALI A O
                                                              ..... Appellant
                             Through        Mr. Mohit Mathur, Sr. Adv. with
                                            Mr. Anil Thakur and Mr. Shishir
                                            Mathur, Advs.

                             versus

Crl. Appeal Nos.898/2015, 916/2015 & 917/2015                Page 1 of 14
        CBI
                                                               ..... Respondent
                             Through        Ms. Rajdipa Behura, SPP with
                                            Ms.Monica Gupta and Ms.
                                            Sanskriti Jain, Advs.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

Crl. M. (B) No.7602/2015 in CRL.A. 898/2015 Crl. M. (B) No.7640/2015 in CRL.A. 916/2015 Crl. M. (B) No.7641/2015 in CRL.A. 917/2015 1 Arguments have been heard on the applications filed by Mahesh

Maheshwari, C. Sangit and Tali A.O., all of whom are seeking

suspension of sentence and regular bail. Their appeals stand admitted.

They had impugned the judgment and order on sentence dated

21.07.2015 and 27.07.2015 wherein appellant Mahesh Maheshwari has

been convicted under Section 120-B read with Sections 419/468/471 of

the IPC. He has been sentenced to undergo RI for a period of 2- ½ years

and to pay a fine of Rs.2,000/- and in default of payment of fine, to

undergo SI for one month. Appellants C. Sangit and Tali AO have both

been convicted under Section 120-B read with Sections

419/420/467/468/471 of the IPC as also Section 13 (2) and Sections 13

(1) (c) and 13 (1)(d) of the Prevention of Corruption Act. Each of the

aforenoted appellants have been sentenced to undergo RI for a period of

3- ½ years and to pay a fine of Rs.4,000/- and in default of payment of

fine to undergo SI for 3 months.

2 The version of the prosecution is that sometime in the year 1993-

1994, P.K. Thungon (not before this Court and the then Minister of

State, Water Resources and Urban Development in Central Government

in the Ministry of State Irrigation and Flood Control Department) along

with his co-accomplices i.e. the three appellants before this Court

namely Mahesh Maheshwari, C. Sangit and Tali AO had entered into a

criminal conspiracy to cheat and commit criminal misconduct and P.K.

Thungon by abusing his official position for obtaining a pecuniary

advantage and mis-appropriating the funds of the Government for

himself and his other co-accomplices. Further version of the prosecution

was that the orders were placed by the Government for purchase of

sausage wires worth Rs.50 lacs. Without actually supplying the

aforenoted material, a fictitious entity by the name of Thanu Thangon

had opened a bank account at the Vijaya Bank, New Delhi. This bank

account had been opened by Mahesh Maheshwari in the name of Thanu

Thangon and on the same day itself, a DD in the sum of Rs.9,98,500/-

was deposited which was subsequently withdrawn; out of which Rs.8

lacs were transferred in the name of one Prem Kumar and the balance

was withdrawn for the benefit of P.K. Thungon. The allegation qua C.

Sangit was that he had opened a bank account in the name of T. Moa

and a sum of Rs.14 lacs on two different occasions was withdrawn. The

allegation qua appellant Tali AO was that he had dishonestly obtained

orders for supply of sausage wires and submitted fake bills to the tune of

Rs.29,99,295/- without actually supplying the said material.

3 The Trial Judge on the basis of the evidence both oral and

documentary (which had been led before it) convicted and sentenced the

appellants as aforenoted.

4 On behalf of appellant Mahesh Maheshwari, arguments have been

addressed by Mr. Ramesh Gupta, learned senior counsel. It is submitted

that apart from the report of the hand-writing expert/GEQD opinion,

there is no other evidence to connect the appellant with the offence.

Attention has been drawn to the cross-examination of the Investigating

Officer (PW-16) wherein he had admitted that he had not taken the

specimen handwriting/signatures of Mahesh Maheshwari; submission

being that no reliance could have been placed upon the report of the

handwriting expert. Even otherwise, this was only a piece of

corroborative evidence. The Account Opening Form was also not

seized; the Investigating Officer has also admitted that the photograph of

appellant Mahesh Maheshwari did not match the photograph on the

Account Opening Form. The appellant had been sentenced even

otherwise for 2- ½ years and bail would accordingly be a matter or right;

reliance has been placed upon the provision of Section 389 (3) of the

Cr.PC. Reliance has also been placed upon the judgment of the Apex

Court reported as 2008 (1) JCC 564 Sudhir Kumar Jain Vs. State of

Delhi as also another judgment of a Bench of this Court reported as

1999 SCC (Crl) 553 Bhagwan Rama Shinde Gosai and Others Vs. State

of Gujarat. Submission being that since the period of sentence is below

three years, bail should be granted to the appellant as a matter of right

and unless and until there are special reasons for refusing the same, he

should be granted the benefit of the same.

5 On behalf of appellants C. Sangit and Tali AO, arguments have

been addressed by Mr. Mohit Mathur, learned senior counsel. His

submission on both scores is that apart from the report of the

handwriting expert, there is no other evidence with the prosecution to

nail the appellants. Additional submission being that the report of the

handwriting expert not being a substantive piece of evidence, cannot by

itself be sufficient to nail the appellants. Reliance has been placed upon

(1977) 2 SCC 210 Magan Bihari Lal Vs. The State of Punjab as also

another judgment of the Apex Court reported as (1996) 4 SCC 596 S.

Gopal Reddy Vs. State of A.P.. Submission being that the report of the

handwriting expert is only a relevant fact under the provision of Section

45 of the Evidence Act and this piece of evidence by itself un-supported

by any other evidence (as is so in the instant case) cannot be the basis of

a conviction of the appellants.

6 On merits, it is pointed out that qua the role of C. Sangit, the

account, as per the version of the prosecution, was opened in the name

of his minor son T. Moa; attention has been drawn to the cross-

examination of PW-16 wherein he has admitted that no effort has been

made by the prosecution to establish the relationship between C. Sangit

and T. Moa. It is pointed out that the Trial Judge also in his order has

recorded that there was no evidence with the prosecution to hold that T.

Moa was in fact the son of C. Sangit. There was also no reason for the

Trial Judge to have negatived the report of a private Government expert

who has been examined as DW-2. Appellant C. Sangit is entitled to an

enlargement on bail. He has already suffered incarceration of more than

two months.

7 Qua the role of Tali AO, it is pointed out that Tali AO has also

remained in custody for more than two months. Attention has been

drawn to Ex.PW-23/N1 as also Ex.P-1. It is pointed out that the charge

against Tali AO was that he had agreed to supply 85450 square meters

of wires and as is evident from Ex.P-1, 2670 rolls were in fact supplied

which would be equivalent to 85440 square meters. There was a

shortfall of only 10 square meters. To further advance this submission,

attention has been drawn to the version of PW-13 who has admitted that

in Ex.P-1, it has been recorded that 2670 rolls had been supplied in the

store department. To convert square meters into rolls, reliance has again

been placed upon Ex.PW-23/N1. Submission being reiterated that 2670

rolls which had been supplied were equivalent to 85440 square meters

and the agreed supply was 85450. The appellant has been falsely roped

in. He also be enlarged on bail.

8 Needless to state that the prosecution has refuted these

submissions. Learned Public Prosecutor on behalf of the CBI submits

that this is not a simplicitor case where it is only the report of the

handwriting expert which has led to the conviction of the accused. This

is a clear case of conspiracy which the three appellants had hatched with

the then Minister P.K. Thungon.

9      Arguments have been appreciated.


10     The version of the prosecution as set up has been noted supra. Mr.

P.K. Thungon was the then Minister of State for Urban Development

and Water Resource in the Central Government. He had persuaded the

Planning Commissioner for a grant of additional central assistance to the

State of Nagaland and a sum of Rs.2 crores had been sanctioned.

Mr.Mahesh Maheshwari had opened an account in Vijaya Bank,

Ansari Road, New Delhi. This account was opened in the name of

Thanu Thangon. The Account Opening Form has been perused and so

also the version of PW-16 who admitted that the photograph on the

Account Opening Form is an old photograph of Mahesh Maheshwari.

Thus his submission that there was no photograph of appellant Mahesh

Maheshwari on the Account Opening Form is negatived. This account

was opened on 25.04.1994. A bank draft in the sum of Rs.9,98,500/-

issued in the name of Thanu Thangon was deposited in this account on

the same day of which Rs. 8 lacs were transferred in the name of one

Prem Kumar which was also a fictitious account. This account was

opened in the name of Prem Kumar by P.K. Thangon and this was in

connivance with Mahesh Maheshwari. The signatures on the two

cheques (Ex.PW-7/E and ex.PW-7/F) tallied with the specimen

handwritings of Mahesh Maheshwari. This is clear from the report of

handwriting expert. Moreover this was the only single transaction in this

account. It was opened only for the aforenoted purpose.

11 C. Sangit had impersonated himself as T. Moa and two bank

drafts of Rs.8 lacs and Rs. 6 lacs were mis-appropriated. This account

was opened in State Bank of India, Bazar Branch in the name of T. Moa

on 26.04.1994. The DDs issued in favour of T. Moa were deposited in

this account on the same day. The specimen and the questioned

documents matched and this was also clear from the report of the

handwriting expert. The pay slip dated 07.05.1994 (Ex.PW-16/D4) for a

deposit of a bank draft of Rs.8 lacs in the account of T. Moa bore the

signatures of C. Sangit. Ex.PW-16/D5 was the pay slip of the same day

for deposit of the second bank draft which was of Rs. 6 lacs.

12 Tali AO who was the private contractor had not supplied the

material which he had agreed to supply i.e. sausage wires and obtained

cash without supplying the said material. This was the allegation

levelled against him. The prosecution was able to prove that Tali AO

had written a letter dated 21.04.1994 requesting that a DD of Rs.10 lacs

should be prepared in the name of Thanu Thangon and another DD of

Rs.15 lacs was to be prepared in the name of Konngom Konyak. An

amount of Rs.9,98,500/- was accordingly then deposited in the Vijaya

Bank account in the name of Thanu Thangon but it was Mahesh

Maheshwari who had impersonated as Thanu Thangon. The bills

received from Tali AO did not bear a stamp and the entries in the stock

register also did not tally with the bill. The Investigating Officer (PW-

16) admitted that the register was forged. Ex.PW-22/C was the opinion

of the GEQD evidencing that the questioned handwritings on the un-

dated receipts (Ex.PW-10/C, Ex.PW-10/D and Ex.PW-10/E) were in the

handwriting of Tali AO.

13 The conspiracy by all the accused to obtain illegal benefits for

themselves at the cost of the public exchequer was a reasoned finding

returned by the Trial Judge.

14 This Court notes the periods of incarceration suffered by the

appellants. Appellant Mahesh Maheshwari has remained in jail for 19

days. Appellants C Sangit and Tali AO have remained in judicial

custody for less than two months. The appeals are of the year 2015. The

judgment and order on sentence was in fact delivered on 21.07.2015 and

27.07.2015 respectively i.e. just about two months ago. Thus it cannot

be said that there is no possibility of an early hearing of the appeals.

15 The Apex Court in judgment reported as 2003 (3) SCC 583 Lalit

Popli Vs. Canara Bank and Others (pronounced after the two judgments

relied upon by the learned counsel for the appellants) had held that it is

for the Court to decide under the provision of Section 73 of the

Evidence Act read with Section 45 as to whether to accept the

uncorroborated evidence of handwriting expert or not; this exercise is

even permissible to the Court and the Court may also compare the

admitted handwritings and the disputed handwritings and come to its

own conclusion. The Apex Court had gone on to state that even without

the expert evidence, the Court has the power to compare the signatures

and decide the matter.

16 In a judgment reported as 1992 (3) SCC 700 State of

Maharashtra Vs. Sukhdev and Anr. the Supreme Court had in this

context made observations which are relevant herein are reproduced as

under:-

"There is no absolute rule of law or even of prudence which has ripened into a rule of law that in no case can the court base its findings solely on the opinion of a handwriting expert but the imperfect and frail nature of the science of identification of the author by comparison of his admitted handwriting with the disputed ones has placed a heavy responsibility on the courts to exercise extra care and caution before acting on such opinion. Before a court can place reliance on the opinion of an expert, it must be shown that he has not betrayed any bias and the reasons on which he had based his opinion are convincing and satisfactory. It is for this reason that J the courts are wary to act solely on the evidence of a handwriting expert that,

however, does not mean that even if there exist numerous striking peculiarities and mannerisms which stand out to identify the writer, the court will not act on the expert's evidence. In the end it all depends on the character of the evidence of the expert and the facts and circumstances of each case."

17 In 2011 II AD (Delhi) 581 Sukhbir Singh Vs. State, a Bench of

this Court while dealing with the provision of Section 389 (3) of the

Cr.PC had quoted with approval the following observation from the

judgment delivered by the Apex Court in 2000 SCC (Crl.) 886 State of

M.P. and Others Vs. Ram Singh. This extract reads herein as under:-

"8. Corruption in a civilized society is a disease like cancer, which if not detected in time, is sure to malignancies (sic) the polity of the country leading to disastrous consequences. It is termed as a plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as royal thievery. The socio- political system exposed to such a dreaded communicable diseased is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti-people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence - shaking of the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrating society."

18 Keeping in view the overall scenario, at this stage, the Court is

not inclined to enlarge the appellants on bail. The applications of all the

appellants are dismissed.

 CRL.A. Nos.898/2015, 916/2015 & 917/2015

19     List in due course.

                                                INDERMEET KAUR, J
SEPTEMBER 17, 2015
A