Delhi District Court
In Mohd. Akhtar Hussain @ Ibrahim Ahmed ... vs . on 10 October, 2018
IN THE COURT OF KOVAI VENUGOPAL, SPECIAL JUDGE,
P.C. ACT (CBI) - 09, CENTRAL DISTRICT, TIS HAZARI : DELHI
CC No. 12/15(532352/16)
R.C. No. 6(E)/2007/EOU-III/DLI
CENTRAL BUREAU OF INVESTIGATION
VERSUS
K. N. AITHAL & ORS.
IN THE MATTER OF :
Central Bureau of Investigation
VERSUS
1. Ashok Jain (A-5)
S/o Late Sh. Premchand Jain
R/o C-7/298, Keshav Puram
Delhi-110035
2. Sunil Yewle (A-10)
S/o Late Sh. Raja Ram
R/o B-109, Sada Satya Apartment,
Temba Road, Bhayandar (West),
District Thane, Mumbai,
Maharashtra-401101
3. Dilip Panchal (A-11)
S/o I. Virchand Panchal,
R/o Flat No. A/106, Baldev Jyot,
Vinayak Nagar Road, Bhayender(West),
District Thane, Mumbai,
Maharashtra-401101
Date of Institution : 01.07.2009
Date of Final Hearing : 20.09.2018
Date of Judgment : 20.09.2018
CC No. 12/15 (532352/16) 1 of 20
JUDGMENT
BRIEF FACTS OF THE CASE
1. RC No. 6(E)/2007/EOU-III/DLI was registered based on the complaint dated 28.12.2007 of Sh. D. Murli Dhar Rao, DGM, Canara Bank, Disciplinary Action Cell, New Delhi alleging that during 2005-06, six firms were sanctioned OCC limits as mentioned against each by K. N. Aithal, the then Chief Manager, Canara Bank, Chandni Chowk Branch, Delhi on the basis of inflated valuation reports in respect of properties mortgaged with the Bank resulting in a wrongful loss of Rs.305.60 lacs as the accounts have become NPA.
2. Names of six companies, loan/credit limits advanced and values of properties mortgaged are as follows :-
S. NAME OF THE FIRM OD/CC LIMIT PROPERTY ACTUAL VALUE No VALUED FOR OF THE PROPERTY
1. M/S. DIXIT & SONS. RS.50 LACS RS.59.5 LACS RS.32.57 LACS
2. M/S. KETAN JEWELLERS RS.70 LACS RS.81.18 LACS RS.8.00 LACS
3. M/S. KUMAR FABRICS RS.75 LACS RS.91.8 LACS RS.10.7 LACS
4. M/S. LAXMI SALES CORP. RS.10 LACS RS.29 LACS RS.8.28 LACS
5. M/S. NICE SALES RS.50 LACS RS.68 LACS RS.5.77 LACS
6. M/S. TARUN AUTO PARTS RS.48 LACS RS.60 LACS RS.6.00 LACS CC No. 12/15 (532352/16) 2 of 20
3. It has been alleged that all these accounts had become NPA against total liabilities of Rs.305.60 lacs. These loan/credit limits were sanctioned by K. N. Aithal, the then Chief Manager and Ravi Malhotra, the then Manager (Credit) of Canara Bank, Chandni Chowk Branch, Delhi and other bank officials against the norms/guidelines laid down by the Bank. It has been further alleged the audited balance sheets submitted by these firms were false and forged. The Chattered Accountants have categorically denied to have conducted the audit of these firms. The aforesaid two bank officials had conducted the pre-sanction inspection and failed to point out the irregularities like over valuation of properties, quality of business, fabricated financial documents etc. and sanctioned the loans on the basis of inflated valuation reports of properties mortgaged with bank as collateral security. It has also been alleged that the prime security i.e. stocks are not available in these cases and the collateral securities available are not sufficient to recoup the loss.
4. Investigation has disclosed that the accounts of the different companies M/s. Ketan Jewellers, M/s. Kumar Fabrics and M/s. Nice Sales were opened by the borrowers, namely, Ketan M. CC No. 12/15 (532352/16) 3 of 20 Dhillon, Sunil Yewle and Arvind Chawde in assumed names at the instance of accused Ashok Jain. The borrowers along with accused Ashok Jain, approached the Branch Manager K. N. Aithal and submitted fake/forged documents like Voter Identity Card, PAN Card etc. in support of their identity in assumed names. K.N. Aithal and Ashok Jain arranged introduction to the accounts. Thereafter, their account opening applications were sent to Harjit Singh Sodhi, Officer (Advances) in the branch who verified signatures of the introducers. The different introducers have taken the plea that they signed blank account opening forms, without any knowledge of the person or his business, who opened the account, at the instance of Ashok Jain. The introduction part of the Account opening forms were filled in by Ashok Jain or other unknown persons.
5. Thereafter, the accounts were allowed /approved to be opened by Sh. N. K. Abbi, Senior Manager in whose presence the borrowers signed the Specimen Signatures Cards and the different documents in support of the identity of the borrowers like PAN Card, Voter Identity Card and copies of the Sale Deeds in respect of the premises from where the firms were projected to be CC No. 12/15 (532352/16) 4 of 20 carrying out their businesses. In case of all the accounts operated by impersonation, from where the firms were projected to be carrying out their businesses from the premises, unsigned copies of sale deeds which were in favour of the borrowers was placed on record.
6. It has been alleged that as per the record, site visits of the firms were carried out by K. N. Aithal or Ravi Malhotra. The funds sanctioned in the different accounts were disbursed within a month, without carrying out any stock verification which was essential for determining the drawing power and in turn disbursement of the funds. As such, apparently, the accounts were opened and applications for sanction of financial assistance were processed in a designed manner to ensure fraudulent disbursement of funds. This is besides the fact that prior to disbursement of funds, after sanction of the limits, the borrowers in the respective accounts executed different loan and security documents which were verified and witnessed by bank officials Ravi Malhotra and Jai Narain Saggu. These verifications are based on misrepresentation of facts as they projected that the concerned borrower was carrying out his business from the said CC No. 12/15 (532352/16) 5 of 20 premises for a few years, which was not possible in the background aforesaid.
7. It is further alleged that the firms M/s Kumar Fabrics, M/s Nice Sales and M/s Ketan Jewellers, were not existing. As regards pre- sanction visit of accused K.N. Aithal was based on misrepresentation of the facts and the same was the case of appraisal carried out by accused Ravi Malhotra who recommended the limits. Stock verification was willfully not carried out so that funds were withdrawn at the earliest without monitoring drawing powers in pursuance of criminal conspiracy. Same is the case of accounts of M/s. Dixit and Sons, M/s. Laxmi Sales Corporation and M/s. Tarun Auto Parts, the funds were allowed to be withdrawn in cash by impersonation through the officer concerned i.e. accused Harjit Singh Sodhi was well aware of identity of the person drawing cash. Accused K.N. Aithal, accused Ravi Malhotra and accused Jai Narain Saggu received valuable kick backs from accused Ashok Jain as consideration for abusing their official position in pursuance of criminal conspiracy.
8. As per the chargesheet the above mentioned facts constitute offences against accused K.N. Aithal and accused Ravi Malhotra CC No. 12/15 (532352/16) 6 of 20 (Public servants) U/s 120B r/w Section 419, 420, 467, 468, 471, 477(A) IPC and substantive offences U/s 13(2) r/w Section 13(1)
(d) of Prevention of Corruption Act, 1988; against accused Khem Raj Aggarwal, M.S. Juneja, D.C. Bhagat U/s 120B r/w Section 419, 420, 467, 468, 471 and 477(A) of IPC and U/s 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988; against accused Ashok Jain U/s 120B r/w Section 419, 420, 467, 468 and 471 of IPC and U/s 13(1)(d) of PC Act and substantive offences U/s 420, 467, 468, 471, 477A IPC; against accused Romi Malhotra U/s 120B r/w Section 419, 420, 467, 468, 471, 477(A) of IPC and U/s 13(2) r/w Section 13(1)(d) of PC Act and substantive offences U/s 420 IPC; against accused Ravinder Kumar Dixit, Mahesh, Tarun Ahuja U/s 120B r/w Section 419, 420, 467, 468, 471 and 477(A) IPC and U/s 13(1)(d) of PC Act and substantive offences U/s 420 and 471 IPC; against Ketan M. Dhillan as Ketan Mahajan, Sunil Yewele as Sunil Kumar, Dilip Panchal as Jiten Kumar U/s 120B r/w Section 419, 420, 467, 468, 471 and 477(A) IPC and U/s 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 and substantive offences U/s 419, 420, 471 IPC; against accused Jai Narain Saggu, Harjit Singh Sodhi CC No. 12/15 (532352/16) 7 of 20 (Public servants) U/s 120B r/w Section 419, 420, 467, 468, 471, 477(A) IPC and substantive offences U/s 13(2) r/w Section 13(1)d) of Prevention of Corruption Act, 1988; against accused Sandeep Jain, Rajiv Goel U/s 120B r/w Section 419, 420, 467, 468, 471 and 477(A) IPC and U/s 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 and substantive offences U/s 419 and 420 IPC; against accused Sunil Kumar and Deepak Kumar U/s 120B r/w Section 420, 467, 468 and 471 of IPC and substantive offences U/s 420, 467, 468 and 471 IPC; against accused Ashish Jain, Mohinder Singh Jain, Pradeep Jain, M.S. Siddique and Sanjay Kumar U/s 120B r/w Section 419, 420, 467, 468, 471 and 477(A) IPC and U/s 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 and substantive offence U/s 420 IPC.
9. The proceedings accused M.S. Juneja (A-3) and accused Deepak Kumar (A-14) were abated vide order dated 07.01.2010 and 17.09.2012 respectively. Accused Ravinder Kumar Dixit (A-7) and accused Ketan M. Dhillon (A-9) were declared as POs vide order dated 31.03.2011 and 14.10.2015 respectively.
10. Accused K.N. Aithal (A-1), Ravi Malhotra (A-2), Khemraj CC No. 12/15 (532352/16) 8 of 20 Aggarwal (A-3), Ashok Jain (A-5), Romi Malhotra (A-6), Mahesh Kumar (A-8), Sunil Yewle (A-10), Dilip Panchal (A-11), Tarun Ahuja (A-12), Sandeep Jain (A-15), Rajiv Goyal (A-16), Sunil Kumar (A-17) and D.C. Bhagat (A-19) have appeared before the Court.
CHARGE
11. After going through the contents of chargesheet, documents filed along with it and after hearing the accused at length, this Court passed an order on charge vide order dated 31.05.2018. Vide said order, accused Jai Narain Saggu (A-13), Harjit Singh Sodhi (A-18), Ashish Jain (A-20), Mohinder Singh Jain (A-21), Pradeep Jain (A-22), M.S. Siddique (A-23) and Sanjay Kumar (A-
24) are discharged and ordered framing of charges against accused K.N. Aithal (A-1), Ravi Malhotra (A-2), Khemraj Aggarwal (A-3), Ashok Jain (A-5), Romi Malhotra (A-6), Mahesh Kumar (A-
8), Sunil Yewle (A-10), Dilip Panchal (A-11), Tarun Ahuja (A-12), Sandeep Jain (A-15), Rajiv Goyal (A-16), Sunil Kumar (A-17) and D.C. Bhagat (A-19). Accordingly, the charges were framed vide order dated 09.08.2018 and 27.08.2018 against the said accused CC No. 12/15 (532352/16) 9 of 20 as follows :
1. Accused K.N. Aithal (A-1) for the offences U/s 120-B r/w Section 420, 467, 468 and 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act and substantive charge U/s 13(2) r/w Section 13(1)(d) of PC Act.
2. Accused Ravi Malhotra (A-3) for the offences U/s 120-B r/w Section 420, 467, 468 and 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act and substantive charge U/s 13(2) r/w Section 13(1)(d) of PC Act.
3. Accused Khemraj Aggarwal (A-3) for the offences U/s 120-B r/w Section 420, 467, 468 and 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act.
4. Accused Ashok Jain (A-5) for the offences U/s 120-B r/w Section 420, 467, 468 and 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act and substantive charges U/s 419 420, 467, 468 and 471 of IPC.
5. Accused Romi Malhotra (A-6) for the offences U/s 120-B r/w 420, 467, 468, 471 r/w Section 13(2) r/w Section 13(1)(d) of PC Act and substantive charges U/s 419, 420 and 467 of IPC.
6. Accused Mahesh Kumar (A-8) for the offences U/s 120-B CC No. 12/15 (532352/16) 10 of 20 r/w Sections 420, 467, 468, 471 r/w Section 13(2) r/w Section 13(1)(d) of PC Act and substantive charges U/s 420 and 471 of IPC.
7. Accused Sunil Yewle (A-10) for the offences U/s 120-B r/w Sections 420, 467, 468, 471 r/w Sections 13(2) r/w Section 13(1)(d) of PC Act and substantive charges U/s 419, 420 and 471 of IPC.
8. Accused Dilip Panchal @ Jatin Kumar (A-11) for the offences U/s 120-B r/w Sections 420, 467, 468, 471 r/w Sections 13(2) r/w Section 13(1)(d) of PC Act and substantive charges U/s 419, 420 and 471 of IPC.
9. Accused Tarun Ahuja (A-12) for the offences U/s 120-B r/w Sections 420, 467, 468, 471 r/w Sections 13(2) r/w Section 13(1)(d) of PC Act and substantive charges U/s 420 and 471 of IPC.
10. Accused Sandeep Jain (A-15) for the offences U/s 120-B IPC r/w Sections 420, 467, 468, 471 IPC r/w Sections 13(2) r/w Section 13(1)(d) of PC Act and substantive charges U/s 419, 420 and 467 of IPC.
11. Accused Rajiv Goyal (A-16) for the offences U/s 120-B IPC CC No. 12/15 (532352/16) 11 of 20 r/w Sections 420, 467, 468, 471 IPC r/w Sections 13(2) r/w Section 13(1)(d) of PC Act and substantive charges U/s 419, 420 and 467 of IPC.
12. Accused Sunil Kumar (A-17) for the offences U/s 120-B r/w Sections 420, 467, 468, 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act and substantive charge U/s 468 IPC.
13. Accused D.C. Bhagat (A-19) expired on 04.07.2018 i.e. before framing of charges.
PLEA OF ACCUSED
12. On 09.08.2018 and 27.08.2018, charges were read over and explained to the above accused. Accused K.N. Aithal (A-1), accused Ravi Malhotra (A-2), accused Khemraj Aggarwal (A-3), accused Romi Malhotra (A-6), accused Mahesh Kumar (A-8), accused Tarun Ahuja (A-12), accused Sandeep Jain (A-15), accused Rajiv Goyal (A-16) and accused Sunil Kumar (A-17) have pleaded not guilty and claimed trial. Accused D.C. Bhagat not appeared on 09.08.2018 as he stated to be expired.
13. Accused Ashok Jain has pleaded guilty of the offences punishable U/s 120-B read with Section 420, 467, 468 and 471 of IPC read with Section 13(2) read with Section 13(1)(d) of PC Act CC No. 12/15 (532352/16) 12 of 20 and further substantive offences U/s 419, 420, 467, 468 and 471 of IPC.
14. Accused Sunil Yewle has pleaded guilty of the offences punishable U/s 120-B read with Section 420, 467, 468 and 471 of IPC read with Section 13(2) read with Section 13(1)(d) of PC Act and further substantive offences U/s 419, 420 and 471 of IPC.
15. Accused Dilip Panchal has pleaded guilty of the offences punishable U/s 120-B read with Section 420, 467, 468 and 471 of IPC read with Section 13(2) read with Section 13(1)(d) of PC Act and further substantive offences U/s 419, 420 and 471 of IPC. DISCUSSION
16. Heard. Since, accused Ashok Jain (A-5), accused Sunil Yewle (A-10) and accused Dilip Panchal (A-11) have pleaded guilty, I find it necessary to briefly mention the role played by them in commission of the alleged offence and material available on record against them.
17. Role of accused Ashok Jain (A-5) : According to prosecution, accused Ashok Jain is the master mind of entire fraud. He conspired with the other accused including bank CC No. 12/15 (532352/16) 13 of 20 officials to cheat the bank by opening current accounts in the names of six firms, namely, M/s Dixit and Sons, M/s Ketan Jewellers, M/s Kumar Fabrics, M/s Laxmi Sales Corporation, M/s Nice Sales Corporation and M/s Tarun Auto Parts. For this purpose, he brought some people, namely, accused Ketan M. Dhillon @ Ketan Mahajan (A-9), Sunil Yewele @ Sunil Kumar (A-
10), Dilip Panchal @ Jatin Kumar (A-11) from Mumbai by Ashok Jain with the help of accused Arvind Chawde @ Kishan Mittal. Currents accounts were opened in the assumed names and forged documents like PAN Cards, Voter Identity Cards, Balance Sheets and Stock Statements were used. The IO has examined witnesses, namely, Deepak Bareja, Anil Malik and A.K. Bajaj who are the Chartered Accountants, who categorically denied that they have not signed the Balance Sheets of the Companies in question. As per the prosecution, accused Ashok Jain used to fill in the cheques which are already signed by accused and used to withdraw the amount impersonating himself to be some unknown person and further used to sign on the backside of the cheques. According to prosecution, accused Ashok Jain (A-5) had also introduced the Current Account of M/s Laxmi Sales Corporation CC No. 12/15 (532352/16) 14 of 20 and also managed the introducers in favour of other borrowers who were not acquainted with the borrowers. It is also alleged that Ashok Jain (A-5) himself had forged the signatures of the borrower of M/s Laxmi Sales and Corporation i.e. Mahesh Kumar (A-8) on the stock statements.
18. According to prosecution, accused Ashok Jain made huge cash payments to accused K.N. Aithal (A-1) for showing undue favour for sanctioning the loan on his approach. Accused Ashok Jain (A-5) had also forged the signatures of Chartered Accountants on the Balance Sheets placed in the loan file of the firms/borrowers. GEQD (Government Examiner of Questioned Documents) has given positive opinion in this regard. It is also alleged that most of the borrowers were residents of Mumbai and they had not done any business activity in Delhi. There is no proof that they had purchased the properties mortgaged with bank from their own sources.
19. Accused Ashok Jain (A-5) was having close laisoning with the bank officials and he had given them costly gifts which were seized from the residential premises of the bank officials namely, accused Ravi Malhotra (A-2), accused Jai Narain Saggu (A-13) CC No. 12/15 (532352/16) 15 of 20 during the investigation. It is also on record that Ashok Jain (A-5) and his associates withdrew huge cash from the loan accounts by impersonating with other names and signed on the reverse of the cheques as a token of withdrawing cash from the accounts in question. GEQD (Government Examiner of Questioned Documents) has given positive opinion in this regard as well.
20. To support its case, prosecution has filed along with chargesheet documents as D-31 (valuation report dated 14.10.2008 by RR & Co.), D-38 (credit/debit vouchers of M/s Dixit and Sons), D-47 (valuation report dated 11.10.2008 by R.R. & Co. of property No. 16E/1083, Tank Road, Khalsa Nagar, Karol Bagh, New Delhi), D-54 (credit/debit vouchers of M/s Ketan Jewellers), D-61 & D-67 (credit/debit vouchers of M/s Nice Sales) seized from the Bank and D-85 (GEQD opinion). Prosecution also filed statement of witnesses LW-7, LW-8, LW-9, LW-13,LW-14, LW-15, LW-16, LW-23, LW-26, LW-27, LW-33, LW-44, LW-45, LW- 46, LW-49, LW-50, LW-53 and LW-56.
21. Role of accused Sunil Yewle (A-10) : Accused Sunil Yewle impersonated as Sunil Kumar for the purpose of opening and operation of the account in the name of M/s Kumar Fabrics as its CC No. 12/15 (532352/16) 16 of 20 proprietor. He authenticated the different documents pertaining to his fake/forged identity and presented the same to the bank as genuine by certifying these forged and fake documents. He received part of the proceeds of the crime and was instrumental in utilization of the remaining proceeds by other accused persons for the purposes other than for which it was sanctioned by way of making available blank cheques in the said assumed name as Sunil Yewle @ Sunil Kumar. Accused Sunil Yewle was aware that valuation of the property bearing No. E-16/1083, Khalsa Nagar, Tank Road, Delhi, mortgaged with the bank, was highly inflated as the same was purchased for a nominal amount only a few days prior to its valuation.
22. In support of its case, prosecution filed along with chargesheet documents pertaining to M/s Kumar Fabrics as D-41 to D-46 which are seized from Bank and statement of account of M/s Kumar Fabrics as D-103. The cheques issued in the account of M/s Kumar Fabrics signed by the accused Sunil Yewle @ Sunil Kumar which were used for withdrawal of the amount by accused Ashok Jain and others along with credit and debit vouchers, are filed as document D-47. GEQD opinion (D-85) is also filed to CC No. 12/15 (532352/16) 17 of 20 support the case of prosecution to prove the signatures of accused Sunil Yewle @ Sunil Kumar.
23. Role of accused Dilip Panchal (A-11) : Accused Dilip Panchal impersonated as Jatin Kumar for the purpose of opening and operation of the account in the name of M/s Nice Sales and Co. as its proprietor. He was brought by Arvind Chawde @ Krishan Mittal from Mumbai at the instance of accused Ashok Jain. He authenticated the different documents pertaining to his identity and presented forged documents to the bank by certifying them as genuine. He received part of the proceeds of crime and was instrumental in utilization of the remaining proceeds by other accused persons for the purposes other than for which it was sanctioned by way of making available blank cheques in the said assumed name as Jatin Kumar. Accused Dilip Panchal was aware that valuation of the property No. 1/8437, A. Rehman Building, Rohtas Nagar, Shahdara, Delhi was highly inflated as the same was purchased for a nominal consideration of Rs.2 Lacs only. The said property with inflated valuation was offered as collateral security to the Bank.
24. Prosecution has filed along with chargesheet documents CC No. 12/15 (532352/16) 18 of 20 pertaining to M/s Nice Sales as D-55 to D-60 which are seized from Bank and statement of account of M/s Nice Sales as D-104. The cheques issued in the account of M/s Nice Sales signed by the accused Jatin Kumar which were used for withdrawal of the amount by accused Ashok Jain and others, along with credit and debit vouchers are filed as document D-61. GEQD opinion is also filed to support the case of prosecution to prove the signatures of accused Jatin Kumar.
CONCLUSION
25. I am satisfied that on 09.08.2018, accused have pleaded guilty of the offences charged voluntarily without any pressure after understanding the charges against them and consequences thereupon. The abovesaid accused have reiterated their stand on their plea of guilty today also. Accordingly, the above accused are convicted U/s 241 Cr.P.C. as follows.
(i) Accused Ashok Jain is convicted for the offences punishable U/s 120-B read with Section 420, 467, 468 and 471 of IPC read with Section 13(2) read with Section 13(1)(d) of PC Act and further substantive offences U/s 419, 420, 467, CC No. 12/15 (532352/16) 19 of 20 468 and 471 of IPC.
(ii) Accused Sunil Yewle is convicted for the offences punishable U/s 120-B read with Section 420, 467, 468 and 471 of IPC read with Section 13(2) read with Section 13(1)(d) of PC Act and further substantive offences U/s 419, 420 and 471 of IPC.
(iii) Accused Dilip Panchal is convicted for the offences punishable U/s 120-B read with Section 420, 467, 468 and 471 of IPC read with Section 13(2) read with Section 13(1)(d) of PC Act and further substantive offences U/s 419, 420 and 471 of IPC.
26. Convicts Ashok Jain, Sunil Yewle and Dilip Panchal shall be heard on the question of sentence.
Digitally signed by KOVAI
KOVAI VENUGOPAL
VENUGOPAL Date:
Announced in open Court 2018.10.12
17:04:34 +0530
today i.e. on 20.09.2018
(KOVAI VENUGOPAL)
Special Judge, PC Act (CBI-09)
Central, Tis Hazari Courts, Delhi(kg)
CC No. 12/15 (532352/16) 20 of 20
IN THE COURT OF KOVAI VENUGOPAL, SPECIAL JUDGE, P.C. ACT (CBI)-09, CENTRAL DISTRICT, TIS HAZARI: DELHI CC No. 12/2015 (532352/2016) R.C. No. 6(E)/07/CBI/EOU-III/ND CENTRAL BUREAU OF INVESTIGATION VERSUS K. N. AITHAL & ORS.
IN THE MATTER OF :
Central Bureau of Investigation VERSUS
1. Ashok Jain (A-5) S/o Late Sh. Premchand Jain R/o C-7/298, Keshav Puram Delhi-35
2. Sunil Yewle (A-10) S/o Late Sh. Raja Ram R/o B-109, Sada Satya Apartment, Temba Road, Bhayandar(West), District Thane, Mumbai, Maharashtra-401101
3. Dilip Panchal (A-11) S/o I. Virchand Panchal, R/o Flat No. A-106, Baldev Jyot, Vinayak Nagar Road, Bhayender(West), District Thane, Mumbai, Maharashtra-401101 Date of Institution : 01.07.2009 Date of Judgment : 20.09.2018 Date of Sentence : 10.10.2018 CC No. 12/15 (532352/16) 21 of 20 ORDER ON SENTENCE
1. I have heard the Ld. P.P. for the CBI, Ld. Defence Counsel for the Convict Ashok Jain and Ld. Defence Counsel for Convicts Sunil Yewle and Dilip Panchal on the point of Sentence. I have also perused the file.
2. It is submitted by the Ld. P.P. for CBI that the Convicts do not deserve any leniency while awarding the sentence. It is submitted that the Convicts have been guilty of the offences of serious nature which resulted huge loss to Public Institution i.e. Canara Bank to the tune of Rs. 3,05,60,000/-. It is also submitted that maximum punishment should be awarded to the Convicts. Ld. PP for CBI submits that no leniency can be shown for accused Ashok Jain who is the master mind of entire fraud. It is also submitted that Convict Ashok Jain is an active participant at every stage of the offence right from hatching conspiracy to withdrawal of hefty amounts from the Bank.
3. Ld. PP for CBI also submits that the punishment should be in proportion to the gravity of the offence and leniency cannot be shown merely on the ground that accused has pleaded guilty.
Ld. PP for CBI relied on the Judgment of Hon'ble Apex Court in Mohd. Akhtar Hussain @ Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs (Prevention) Ahmedabad and Ors. wherein it is held that "generally, it is both proper and customery for courts to give credit to an accused for pleading guilty to the Charge. But no credit need be given if CC No. 12/15 (532352/16) 22 of 20 the plea of guilty in the circumstance is inevitable or the accused has no alternative but to plead guilty. The accused being caught red handed is one such instance."
4. Convict Ashok Jain has submitted that he is 57 years of age and is suffering from health problems. It is also submitted that he has a wife, two daughters and two sons. It is also submitted that prior to 2007 he was not involved in any case and was leading peaceful life by doing his own business. It is further submitted that he got trapped by some other persons like Romi Malhotra and since then he is facing cases. It is also submitted that he sold out his house and two flats to repay the bank and not owning any property at present.
5. It is further submitted that the properties which are kept as collateral securities with the bank are genuine properties and bank can always recover due amount from selling those properties. Infact, one such property is sold out for more than the defaulted amount. He further submits that he has already spent around 21 months in Judicial Custody in the present case and feeling repentant for the mistakes committed by him and prays for lenient view.
6. Ld. Counsel of the Convict Sunil Yewle has submitted that the Convict is resident of Mumbai innocently trapped in the offence. He is 51 years of age living with family of brother who has expired. He is earning his livelihood by running a Newspaper Agency and he is having responsibility to support the family of his late brother. It is also submitted that the CC No. 12/15 (532352/16) 23 of 20 Convict has always cooperated with the investigation and appeared before the Court for last 10 years by travelling from Mumbai on each and every date of hearing despite so many financial constraints. It is further submitted that Convict is feeling remorse as this is the only mistake committed by him in his entire life. It is also submitted that convict has pleaded guilty and prays for lenient view to be taken.
7. Ld. Counsel of the Convict Dilip Panchal has submitted that the Convict is resident of Mumbai innocently trapped in the offence. He is 45 years of age having wife, one daughter and one son studying in School. He is earning his livelihood by working as a Salesman in a retail shop and he is the sole earning member in the family. It is also submitted that his wife is suffering from various ailments and some medical documents are also shown to the Court. It is also submitted that the Convict has always cooperated with the investigation and appeared before the Court for last 10 years by travelling from Mumbai on each and every date of hearing despite so many financial constraints. It is further submitted that Convict is feeling remorse as this is the only mistake committed by him in his entire life. It is also submitted that convict has pleaded guilty and prays for lenient view to be taken.
8. Heard.
9. Ashok Jain is convicted for the offences punishable U/s 120- B read with Section 420, 467, 468 and 471 IPC read with Section 13(2) read with Section 13(1)(d) of PC Act and CC No. 12/15 (532352/16) 24 of 20 substantive offences u/s 419, 420, 467, 468 and 471 IPC.
10. Sunil Yewle is convicted for the offences punishable U/s 120- B read with Section 420, 467, 468 and 471 of IPC read with Section 13(2) read with Section 13(1)(d) of PC Act and further substantive offences U/s 419, 420 and 471 of IPC.
11. Dilip Panchal is convicted for the offences punishable U/s 120-B read with Section 420, 467, 468 and 471 of IPC read with Section 13(2) read with Section 13(1)(d) of PC Act and further substantive offences U/s 419, 420 and 471 of IPC.
12. This is a case in which a Public Sector Bank has been cheated for huge amount in a very methodical, pre-planned manner. It is made out from the case of the prosecution that convict Ashok Jain was the mastermind and he conspired to cheat the Bank with other co-accused and his role can be seen right from the beginning of the fraud till end.
13. In R. Venkatakrishnan vs. CBI VI (2009) SLT 375, Hon'ble Apex Court has held as under :-
"190. A sentence of punishment in our opinion poses a complex problem which requires a balancing act between the competing views based on the reformative, the deterrent as well as the retributive theories of punishment. Accordingly a just and proper sentence should neither be too harsh nor too lenient. In judging the adequacy of a sentence, the nature of the offence, the circumstances of its commission, the age and character of the offender, injury to individual or the society, effect of punishment on offender, are some amongst many other facts which should be ordinarily taken into consideration by the Courts."
14. In the present case, there are also certain mitigating factors CC No. 12/15 (532352/16) 25 of 20 which need to be considered. All the convicts have pleaded guilty and expressed remorse for committing the offences. They have been facing the Law for more than a decade. It is not disputed that the properties which were kept with the bank as collateral securities are genuine properties and the bank has already initiated the proceedings to recover its dues by selling the properties.
15. Convicts Sunil Yewle and Dilip Panchal appear to be from poor families doing private jobs for their livelihood and sole bread earners of their families. All of them have dependent wife and children living in Mumbai. It is not disputed that they are not involved in any other offence. They have come forward honestly before the Court and pleaded guilty as they are repentant of what they have done. It also appears that they have not made any significant financial benefit out of the fraud committed on the Bank as they were only used as pawns. In my opinion, they deserve leniency in sentence.
16. As far as the Convict Ashok Jain is concerned, he is the master mind and his active participation is seen throughout the fraud. He is one of the accused who enriched himself by the money which he got from cheating the Bank. It appears he is also involved in similar other cases also. However, it is submitted that convict Ashok Jain has come forward to plead guilty and intends to lead a fresh and new life. It is also submitted that he appearing in various cases for last so many years is no less than the punishment. Convict Ashok Jain is CC No. 12/15 (532352/16) 26 of 20 also sentenced in another case today itself. The offences in the present case and the offences in the case for which he has already been sentenced today are akin to each other.
17. Considering the overall facts and circumstances, the Convicts are sentenced as under :
(i) Convict Ashok Jain is sentenced to undergo Rigorous Imprisonment for a period of three years and ordered to pay a fine of Rs. 10,000/- for the offence punishable U/s 120-B read with Section 420, 467, 468 and 471 IPC read with Section 13(2) read with Section 13(1)(d) of PC Act, in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of three months.
Ashok Jain is also sentenced to undergo Rigorous Imprisonment for a period of one year and ordered to pay a fine of Rs. 5,000/- for the offences u/s 419 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of one month.
Ashok Jain is also sentenced to undergo Rigorous Imprisonment for a period of three years and ordered to pay a fine of Rs. 10,000/- for the offences u/s 420 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of three months.
Ashok Jain is also sentenced to undergo Rigorous Imprisonment for a period of two years and ordered to pay a fine of Rs. 5,000/- for the offences u/s 467 of IPC in default of payment of fine, the Convict shall undergo Simple CC No. 12/15 (532352/16) 27 of 20 Imprisonment for a period of two months.
Ashok Jain is also sentenced to undergo Rigorous Imprisonment for a period of two years and ordered to pay a fine of Rs. 5,000/- for the offences u/s 468 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of two months.
Ashok Jain is also sentenced to undergo Rigorous Imprisonment for a period of one year and ordered to pay a fine of Rs. 5,000/- for the offences u/s 471 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of one month. The benefit U/s 428 Cr.P.C., if any, be given to him. All the sentences shall run concurrently.
The sentences herein above shall also run concurrently with the sentences for which convict Ashok Jain is sentenced in RC-5(E)/07, as both the cases are akin and intimately connected.
(ii) Convict Sunil Yewle is sentenced to undergo Rigorous Imprisonment for a period of one year and ordered to pay a fine of Rs. 1,000/- for the offence punishable U/s 120-B read with Section 420, 467, 468 and 471 IPC read with Section 13(2) read with Section 13(1)(d) of PC Act, in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of one month.
Sunil Yewle is also sentenced to undergo Rigorous CC No. 12/15 (532352/16) 28 of 20 Imprisonment for a period of six months and ordered to pay a fine of Rs. 1,000/- for the offences u/s 419 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of 15 days.
Sunil Yewle is also sentenced to undergo Rigorous Imprisonment for a period of one year and ordered to pay a fine of Rs. 1,000/- for the offences u/s 420 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of one month.
Sunil Yewle is also sentenced to undergo Rigorous Imprisonment for a period of six months and ordered to pay a fine of Rs. 1,000/- for the offences u/s 471 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of 15 days. The benefit U/s 428 Cr.P.C., if any, be given to him. All the sentences shall run concurrently.
(iii) Convict Dilip Panchal is sentenced to undergo Rigorous Imprisonment for a period of one year and ordered to pay a fine of Rs. 1,000/- for the offence punishable U/s 120-B read with Section 420, 467, 468 and 471 IPC read with Section 13(2) read with Section 13(1)(d) of PC Act, in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of one month.
Dilip Panchal is also sentenced to undergo Rigorous Imprisonment for a period of six months and ordered to pay a CC No. 12/15 (532352/16) 29 of 20 fine of Rs. 1,000/- for the offences u/s 419 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of 15 days.
Dilip Panchal is also sentenced to undergo Rigorous Imprisonment for a period of one year and ordered to pay a fine of Rs. 1,000/- for the offences u/s 420 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of one month.
Dilip Panchal is also sentenced to undergo Rigorous Imprisonment for a period of six months and ordered to pay a fine of Rs. 1,000/- for the offences u/s 471 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of 15 days. The benefit U/s 428 Cr.P.C., if any, be given to him. All the sentences shall run concurrently.
18. Copy of Judgment as well as order on sentence be given immediately to the Convicts, free of cost.
Digitally signedby KOVAI VENUGOPAL
KOVAI Announced in the open Court VENUGOPAL Date:
2018.10.12 17:04:01 +0530 today i.e. on 10.10.2018 (KOVAI VENUGOPAL) SPECIAL JUDGE, PC ACT, (CBI)-09 CENTRAL, DELHI CC No. 12/15 (532352/16) 30 of 20