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2013 DIGILAW 647 (CAL)

Smritish Dutta v. Central Bureau of Investigation

2013-09-06

JOYMALYA BAGCHI

body2013
Judgment Joymalya Bagchi, J. 1. The revisional application is directed against the judgment and order dated 11.02.2011 passed in Criminal Appeal no.54 of 2010 affirming judgment and order of conviction and sentence dated 30.04.2010 passed by learned Metropolitan Magistrate, 12th Court, Calcutta in G.R Case No. 358 of 1996 arising out of Case No.RC 46/94 dated 13.07.1994 convicting the petitioner for commission of offences punishable under Sections 420/468/471 of the Indian Penal Code and directing him to suffer simple imprisonment for three years and to pay fine of Rs.5000/-, in default to suffer further simple imprisonment for three months for the commission of offence under Section 420 I.P.C and to suffer simple imprisonment for three years and to pay fine of Rs.5000/- in default to suffer further simple imprisonment for three months for the commission of offence under Section 468 I.P.C and to suffer simple imprisonment for three years and to pay fine of Rs.5000/- in default to suffer further simple for three months for commission of offence under Section 471 I.P.C, all the sentences to run concurrently. 2. R.C Case No.46/94 dated 13.07.1994 under sections 120B/420/467/468/471 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act was registered against the petitioner, one Arun Kumar Mitra, the then Administrative Officer and one Alok Mitra, the then Senior Assistant posted in Division-V of NIC Ltd. and others that they had entered into a criminal conspiracy to cheat Division-V of the NIC Ltd., Calcutta in the matter of Mediclaim Policies. Pursuant to the said criminal conspiracy a claim to the tune of Rs.9,740/- was obtained in respect of Mediclaim Policy No.8500509 dated 31.08.1990 in favour of the petitioner by preparing forged and fabricated false bills purportedly issued by one Southern Nursing Home, 86, Purnadas Road, Calcutta-29 and one Southern Clinical Laboratory, a fictitious firm. The cheque for the said amount was encashed by the petitioner through Dena Bank, Behala Branch causing a loss of Rs.9,740/- to the NIC Ltd. 3. Pursuant to investigation, charge sheet was filed only against the petitioner under Sections 420/468/471 of the Indian Penal Code. The aforesaid co-accuseds, namely, Arun Kumar Mitra and Alok Mitra were discharged and were shown as prosecution witnesses in the said charge sheet. 4. Pursuant to investigation, charge sheet was filed only against the petitioner under Sections 420/468/471 of the Indian Penal Code. The aforesaid co-accuseds, namely, Arun Kumar Mitra and Alok Mitra were discharged and were shown as prosecution witnesses in the said charge sheet. 4. The trial court framed charges against the petitioner to the following effect: “First-That you, during the year 1990-91 at Calcutta cheated Division-V of National Insurance Company, Calcutta by dishonestly inducing the aforesaid company to deliver property, to wit, A/c payee cheque No.450788 dt.5.7.91 for Rs.9740/- only to you and which was the property of the said company and thereby committed an offence punishable under Section 420 of the Indian Penal Code, and within my cognizance. Secondly-That you during the same period and the same place forged certain documents to wit, bills of pathological test of Southern Nursing Home, prescription of Dr. Dilip Mukherjee and medicine bills of Ready Cure Drug Store intending that the same be used in the cheating and thereby committed an offence punishable under Section 468 of the Indian Penal Code, and within my cognizance. Thirdly-That you, on or about the same period at the same place fraudulently and dishonestly used as genuine certain documents, to wit, bills of pathological test of Southern Nursing Home, prescription of Dr. Dilip Kr. Mukherjee and medicine bills of Ready Cure Drug Store which you knew or had reason to believe at the time you used those bills to be forged documents and thereby committed an offence punishable under Section 471 of the Indian Penal Code and within my cognizance.” 5. The petitioner pleaded not guilty and claimed to be tried. 6. In the course of trial the prosecution examined eleven witnesses. 7. P.W.1, Arun Kumar Mitra was the then Administrative Officer of Division-V of NIC Ltd., Calcutta. He had been shown as an accused in the First Information Report but was discharged and cited as a witness. He deposed regarding the procedure in which claims were processed in the said department. In cross-examination, had admitted that before grant of claim, the company has to be satisfied about the genuineness of the documents submitted with such claim. 8. P.W.2 is the agent attached to the said Division of National Insurance Company and claimed to have no personal knowledge with regard to the policy of the petitioner. 9. In cross-examination, had admitted that before grant of claim, the company has to be satisfied about the genuineness of the documents submitted with such claim. 8. P.W.2 is the agent attached to the said Division of National Insurance Company and claimed to have no personal knowledge with regard to the policy of the petitioner. 9. P.W. 3, Alok Kumar Mitra was the Senior Assistant of Division-V, NIC Ltd., who is said to have processed the claim of the petitioner. In cross-examination he admitted that he verified the documents. He was, in fact, an accused in the First Information Report but was discharged and cited as a prosecution witness. 10. P.W. 4, Asit Kumar Basu, is a relation of the petitioner and has admitted to have filled up the claim form as directed by the petitioner. 11. P.W. 5, Dr. Arun Kumar Chatterjee, is a Doctor who has deposed that Soutern X-ray Clinic is situated at 88B Hazra Road, Calcutta-26 and there is no laboratory named as “Southern Clinical Laboratory.” 12. P.W.6, Kamal Mondal is a post man who stated that there is no address as 86 Purna Das Road in his beat. 13. P.W.7. Sambhu Nath Banerjee was posted at Behala Branch of Dena Bank in the capacity of Branch Manager from 1991 to 1995 and proved the encashment of the claim cheque in the account of the petitioner. 14. P.W.8 is the handwriting examiner who proved the signature of the petitioner in the claim document. In cross-examination, he stated that apart from bank document and standard handwritings, nothing was sent to him for examination. 15. P.W.9, Mrs. Niharika Ghosh, is the wife of Dr. Debiprasad Ghosh who was the partner of Southern Nursing Home at 86, Manoharpukur Road, Calcutta-29. She stated that Dr. Ghosh expired on 13.10.2002 and she also stated that there was no Doctor named Dr. Dilip Kumar Mukherjee attached to the Nursing Home and the Nursing Home is not situated at 86, Purna Das Road, Calcutta-29. 16. P.W.10, Debi Prasad Ghosh, is the Deputy Chief Manager of the Bank and is a seizure list witness of the cheque leaf and other bank documents. 17. P.W.11, Ujjal Roy, is the Investigating Officer who conducted the investigation of the case. He stated that he forwarded the specimen signature of the petitioner to the handwriting expert. 16. P.W.10, Debi Prasad Ghosh, is the Deputy Chief Manager of the Bank and is a seizure list witness of the cheque leaf and other bank documents. 17. P.W.11, Ujjal Roy, is the Investigating Officer who conducted the investigation of the case. He stated that he forwarded the specimen signature of the petitioner to the handwriting expert. He stated that he could not find any premises at No.86 Purna Das Road, Calcutta-29 and he also did not find the existence of Southern X-ray Clinic. In cross-examination he admitted that he did not enquire as to whether the officers attached to Division-V of NIC Ltd. had enquired into the supporting documents or not. He admitted that P.Ws.1 and 3 were accused persons in the First Information Report but had been cited as witnesses in the charge-sheet. 18. Upon analysis of aforesaid evidence the learned trial Judge came to a finding of guilt against the petitioner and sentenced him, as aforesaid. In appeal, the appellate court affirmed the order of conviction and sentence of the petitioner. 19. Mr. Krishnendu Bhattacharyya, learned Advocate, appearing on behalf of the petitioner has criticised the order of the appellate court on the ground that the said order merely reiterates the finding of the trial court and that there is no independent application of mind to the evidence on record. He submitted that the appellate court is the last court of fact and, therefore, the learned Judge ought to have independently appreciated the evidence on record. He further challenged the prosecution case on the ground that the same is a biased and unfair one, inasmuch as, P.Ws.1 and 3 were discharged from the case and cited as prosecution witnesses without any basis whatsoever. Pointing out to the evidences of P.Ws.1 and 3, he submitted that the documents in question were admittedly verified by the said persons and, therefore, grant of such claim cannot be said to be illegal. He further stated that Investigating Officer, P.W.11, has not given any explanation as to why the said persons were cited as prosecution witnesses and not as accused persons. He drew my attention to the cross-examination of P.W.8 and further submitted that apart from bank documents and standard handwritings, nothing was sent to him for examination. He further submitted that the evidence of other prosecution witnesses did not prove the prosecution case beyond reasonable doubt. He drew my attention to the cross-examination of P.W.8 and further submitted that apart from bank documents and standard handwritings, nothing was sent to him for examination. He further submitted that the evidence of other prosecution witnesses did not prove the prosecution case beyond reasonable doubt. Non-existence of the Nursing Home or Clinic in query had not been proved beyond reasonable doubt and in the light of evidence of P.W.1 and P.W.3 that the documents were verified, the benefit of doubt ought to be extended to the 6petitioner. He further submitted that non-examination of Dr. Ghosh, a partner of Southern Nursing Home, has dealt a fatal blow to the prosecution case. 20. Mr. Himangshu De, learned Senior Advocate, appearing on behalf of the C.B.I submitted that prosecution had proved its case beyond reasonable doubt. Evidence on record establishes beyond shadow of doubt that the documents submitted were forged and mere negligence of the officials attached to Division-V of NIC Ltd. in the matter of verification of claims cannot be a ground to give a clear chit to the petitioner. He further submitted that the signature in the claim petition had been proved to be made by the petitioner and the evidence of handwriting expert in that regard is probabalised by the evidence of P.W.4, who is relation of the petitioner, and states that he filled up the claim application as directed by the petitioner. Hence, no interference was called for in the concurrent finding of guilt by the courts below. 21. I have considered the submissions of both the parties. It appears that the crux of the prosecution case is that the petitioner had submitted a claim application to NIC Ltd. in respect of a mediclaim policy. Relevant medical documents were submitted along with such application. Such medical documents were purported to have issued on behalf of one Southern Nursing Home of 86, Purna Das Road, Calcutta-29 and one Southern Clinic Laboratory. Evidence on record particularly that of P.W.6 and P.W.9 establishes that there is no existence of Southern Nursing Home at 86 Purna Das Road. P.W.9 further deposed that there is no doctor by the name of Dr. Dilip Mukherjee, attached to the said Southern Nursing Home though the medical documents are purportedly signed by one Dr. Dilip Mukherjee of Southern Nursing Home. In fact, there is no premises numbered as 86 Purna Das Road. P.W.9 further deposed that there is no doctor by the name of Dr. Dilip Mukherjee, attached to the said Southern Nursing Home though the medical documents are purportedly signed by one Dr. Dilip Mukherjee of Southern Nursing Home. In fact, there is no premises numbered as 86 Purna Das Road. Southern Clinical Laboratory is also not in existence as per the evidence of P.W.4. It is, therefore, clear that the prosecution evidence particularly that of P.Ws.4, 6 and 9 establishes beyond any pale of doubt that the medical documents accompanying the claim application were forged and fabricated ones. Non- examination of Dr. Ghosh cannot be said to be wilful as he had expired on 13.10.2002 and the prosecution cannot be faulted on the score as it had examined his wife (P.W.9) to prove its case under such circumstances. 22. The next question is whether the petitioner had submitted such documents. It is the evidence of P.W.4 that he had filled up the claim petition as per instruction of the petitioner. P.W.8, the handwriting expert, had proved the signature of the petitioner on the claim application. These evidence unerringly point to the conclusion that it was the petitioner who submitted the claim application under his own signature along with the forged medical papers. Specimen signature and standard handwritings of the petitioner were admittedly send to the handwriting expert. Hence, the petitioner cannot claim the procedure adopted by handwriting expert was either contrary to law or had caused any to him. That apart, the prosecution has proved that the cheque issued by NIC Ltd. in respect of such mediclaim was, in fact, encashed in the bank account of the petitioner. This gamut of evidence clearly establishes the fact that the petitioner had knowingly and intentionally used forged and fabricated medical papers and thereby procured cheque from NIC Ltd. and encashed the same in his account. 23. A challenge has been thrown by the learned Advocate for the petitioner to the prosecution on the score that the officers of NIC Ltd. who were implicated along with petitioner in the First Information Report had been discharged. He has strenuously argued in the light of such discharge, the prosecution against the petitioner ought to have failed. I am unable to accept such contention. It is true that there is evidence on record that P.W.3 had verified the documents. He has strenuously argued in the light of such discharge, the prosecution against the petitioner ought to have failed. I am unable to accept such contention. It is true that there is evidence on record that P.W.3 had verified the documents. P.W.11 the Investigating Officer admits that he did not investigate as to whether verification was done or not. Departmental proceeding was proposed against P.Ws.1 and 3. It, therefore, appears that prosecution case against P.Ws.1 and 3 was one of negligence in discharging their official duty and not of active conspiracy with the petitioner in the matter of dishonestly procuring the claim in the instant case. On such score of dereliction of duty they were proposed to be proceeded against departmentally but were not sent up for trial co-conspirators. In this factual matrix, I am of the view that the discharge of the aforesaid persons does not affect the merits of the prosecution case against the petitioner particularly in the light of the overwhelming and consistent evidence as to the role of the petitioner in the preparation and submission of the claim application with forged medical papers and the procurement and encashment of the claim cheque in his own account on the strength of such forged and fabricated documents. 24. Involvement of the petitioner in the alleged crime is proved beyond reasonable doubt. Such involvement of the petitioner in the crime does not get absolved by the decision of the Investigating Agency not to prosecute the other accused persons on the charge of conspiracy as they were proposed to be proceeded against departmentally on the score of negligence in the matter of discharge of their official duties. 25. Lastly, with regard to the fact that the appellate court has failed to discharge its statutory duty, I have examined the judgment and order of the appellate Court and I find that the said Court has discussed and dealt with the evidence on record and all issues raised before it. 26. No prejudice can be said to have been caused to the petitioner of such score nor can the said judgment and order be said to be so cryptic so as to come to a conclusion that the appellate Court had totally abdicated its role as the last Court on facts. In view of the aforesaid discussion and as the evidence on record is so consistent and overwhelming against the petitioner. In view of the aforesaid discussion and as the evidence on record is so consistent and overwhelming against the petitioner. I am of the opinion that no case for remand to the appellate Court has been made out on the premise that the judgment could have been written in a more articulate and elaborate manner. 27. I am also satisfied with the reasons given by the trial Judge for not extending the provisions of the Probation of Offenders Act to the instant case. 28. In the result, the revisional application fails and is dismissed. 29. Lower Court Records be sent down at once. 30. The petitioner is directed to surrender before the trial court within fifteen days from date to serve out the sentence in accordance with law.