Delhi District Court
Rc 47(A)/95, Cc 84/11 - Cbi vs . Ashok Pasrija on 18 July, 2012
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
SPECIAL JUDGE (PC ACT), CBI-08, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI.
CC No. : 84/2011
PS : CBI/ACB/ND
Unique ID No. 02401R000381998
RC No. : 47(A)/95-DLI
U/s 420/468/471/477-A IPC
and Sec. 13(2) r/w 13(1)(d) of PC Act, 1988
CBI
Versus
Shri Ashok Pasrija,
Manager, Oriental Bank of Commerce,
Rajgarh Colony Branch,
Delhi.
At present r/o D-140, Bathla Apartment,
Patparganj, Delhi.
Date of FIR : 16.06.1995
Date of Institution : 23.07.1998
Arguments heard on : 13.07.2012
Date of Judgement : 18.07.2012
JUDGEMENT
1. Accused Ashok Pasrija is facing trial before this Court in three separate cases registered by CBI vide RC No. 46(A)/95 (CC No. 83/11), RC No. 47(A)/95 (CC No. 84/11) and RC No. 48(A)/95 (CC No. RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija 85/11). Another case registered by CBI vide RC No. 49(A)/95 is informed to be pending in the Court of Shri Pradeep Chaddah, Special Judge, CBI, Delhi. It is alleged that during 1992 to 1994 accused Ashok Pasrija working as Manager, Oriental Bank of Commerce, Rajgarh Colony Branch, Delhi defrauded and cheated the bank by making unauthorized transactions in various accounts. In RC No. 46(A)/95, the accused is alleged to have made false credit entries in SB Account no. 3988/15 of Shri Pawan Kumar Rawat without actually receiving the amount. Further, vide unauthorized transactions amount was transferred from account no. 3988 to other accounts i.e. account no. 11610 belonging to S. K. Raheja; account no. 12151 (a fictitious account in the name of S. K. Raheja); account no. 12136 belong to L. M. Kapoor and Smt. Malti Kapoor; account no. 12557 a benami account opened and operated by Ashok Pasrija and account no. 12990 an account in the name of Sushila Devi Kapoor.
In RC No. 47(A)/95 (CC No. 84/11), accused is alleged to have cheated the bank by making false entries in account no. 12169/47 of Shri L. M. Kapoor and Sushila Devi and account no. 12136/47 belonging to L. M. Kapoor and Malti Kapoor. Accused also made unauthorized transactions in account no. 11914 in the name of Shri L. M. Kapoor and also opened fictitious account no. 11898 in the name of L. M. Kapoor and account no. 11899 in the name of Malti Kapoor.
In RC No. 48(A)/95 (CC No. 85/11), accused is alleged to have defrauded the bank by opening fictitious account in the name of Yograj Grover and Suman and further made false and fictitious entries in joint account no. 12123/47. Accused also opened a fictitious account no. 12557/49 in the name of one Suman Arora. Further, accused allegedly made various unauthorized entries in account no. 12123 by transferring amount from other accounts i.e. CA2515 belonging to Satpal Makkar;
RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija account no. 12169 belonging to L. M. Kapoor and Sushila Devi Kapoor and from account no. 12476.
It may also be appropriate to mention that apart from the common witnesses from the bank, the account holders Shri Lalit Mohan Kapoor, Shri Satpal Makkar, Shri Yograj Grover are common in some of the cases which have been taken up together for disposal [{i.e. RC No. 46(A)/95 (CC No. 83/11) - PW6 Shri Lalit Mohan Kapoor, PW 9 Brig. K. C. Sukhija}, {RC No. 47(A)/95 (CC No. 84/11) PW13 Shri Yograj Grover, PW18 Lalit Mohan Kapoor, PW20 Brig. K. C. Sukhija, PW22 Shri Satpal Makkar} {RC No. 48(A)/95 (CC no. 85/11) - PW6 Lalit Mohan Kapoor, PW8 Brig. K. C. Sukhija, PW9 Shri Yograj Grover, PW18 Shri Satpal Makkar}]. Apart from above, Brig. K. C. Sukhija is a common witness in all the three cases before whom the accused made admissions in writing in respect of illegal acts committed by him alongwith unauthorized entries made in the account of Neeraj Sukhija s/o Brig. K. C. Sukhija and the same have been investigated in RC 49(A)/95.
2. In the aforesaid background, the facts of the present case may be seen. The FIR in present case was registered on the basis of reliable information that during the period 1992-94 Shri Ashok Pasrija, Manager of Oriental Bank of Commerce, Rajgarh Colony Branch entered into criminal conspiracy with Shri L. M. Kapoor and Smt. Sushila Devi with the object to cheat the bank by making false entries in the savings bank account no. 12169/47 of Shri L. M. Kapoor and Smt. Sushila Devi and joint account no. 12136/47 of Shri L. M. Kapoor and Smt. Malti Kapoor and thereafter withdrew the amount.
It may be appropriate to reflect at this stage itself that though accused Ashok Pasrija is alleged to have entered into conspiracy with RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija Shri L. M. Kapoor, son of Shri Lajpat Rai Kapoor and Smt. Sushila Devi Kapoor, wife of Shri Lajpat Rai Kapoor at the stage of registration of FIR but the subsequent investigation did not establish the involvement of Shri L. M. Kapoor and Smt. Sushila Devi Kapoor and as such both were placed in column no. 2 of the charge-sheet and not sent up for trial.
3. On completion of investigation, charge-sheet was filed under Section 420, 468, 471, 477A IPC and Sec. 13(2) r/w 13 (1) (d) of P. C. Act, 1988. No sanction order was obtained by the prosecution since the accused had been removed from the service by the bank.
4. Charge was framed against the accused u/s 409/420 IPC and Section 13(2) r/w 13(1)(d) of PC Act, 1988. Accused was further charged u/s 467/468 & 477A IPC.
5. In support of its case, prosecution examined 25 witnesses namely :-
PW1: Sh. Chand Kumar Dhawan, Officer, Oriental bank of commerce, Rajgarh Colony Branch PW2: Sh. B. R. Jain, Sr. Manager, Oriental bank of commerce, Rajgarh Colony Branch PW3: Sh. Gulshan Kumar Gupta, Officer, Oriental bank of commerce, Rajgarh Colony Branch PW4: Smt. Manju Sharma, Clerk, Oriental bank of commerce, Rajgarh Colony Branch PW5: Mrs. Anita Sagar, Clerk, Oriental bank of commerce, Rajgarh Colony Branch PW6: Sh. Sanjay Kumar Verma, Clerk, Oriental bank of commerce, RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija Rajgarh Colony Branch PW7: Sh. Anurag Gupta, Clerk, Oriental bank of commerce, Rajgarh Colony Branch PW8: Sh. H. N. Tandon, Sr. Manager, Oriental bank of commerce, Raj Garh Colony Branch PW9: Sh. S. P. Jain, Manager, Oriental bank of commerce, Rajgarh Colony Branch PW10: Smt. Neena Malhotra, Clerk, Oriental bank of commerce, Rajgarh Colony Branch PW11: Sh. S. K. Jain, Officer, Oriental bank of commerce, Rajgarh Colony Branch PW12: Sh. Mahavir Prasad Arora, Officer, Oriental bank of commerce, Rajgarh Colony Branch PW13: Sh. Yog Raj Grover PW14: Sh. Vinay Kumar Sharma, Clerk, Oriental bank of commerce, Rajgarh Colony Branch PW15: Sh. Jagdish Chand Nagpal, Clerk, Oriental bank of commerce, Rajgarh Colony Branch PW16: Sh. V. K. Jain, Officer, Oriental bank of commerce, Rajgarh Colony Branch PW17: Sh. Mansa Ram, Clerk-cum-Cashier, Oriental bank of commerce, Raj Garh Colony Branch PW18: Sh. Lalit Mohan Kapoor, PW19: Sh. A. K. Soin, State Bank of India, Greater Kailash-II, PW20: Brig. K. C. Sukhija (Retd.) PW21: Sh. K. L. Kapoor PW22: Sh. Satpal Makkar PW23: Dr. M. A. Ali, Sr. Scientific Officer, Gr.1 (Document), CFSL, CBI, New Delhi RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija PW24: Sh. K. L. Bhutiani, Dy. Chief Manager, Inspection Department in Oriental Bank of Commerce, Rajgarh Branch, PW25: Inspector Virender Thakran in CBI (ACB) on deputation basis from Delhi Police
6. The following witnesses from the bank were examined by the prosecution to prove the relevant debit vouchers/ledgers/day book/long book etc., namely, PW1: Shri Chand Kumar Dhawan, PW2: Shri B. R. Jain, PW3: Shri Gulshan Kumar Gupta, PW4: Smt. Manju Sharma, Clerk, PW5: Mrs. Anita Sagar, PW6: Shri Sanjay Kumar Verma, PW7: Shri Anurag Gupta, PW8: Shri H. N. Tandon, PW9: Shri S. P. Jain, PW10: Smt. Neena Malhotra, PW11: Shri S. K. Jain, PW12: Shri Mahavir Prasad Arora, PW14: Shri Vinay Kumar Sharma, PW15: Shri Jagdish Chand Nagpal, PW16: Shri V. K. Jain, Officer, PW17: Shri Mansa Ram, PW21: Shri K. L. Kapoor, PW24: Shri K. L. Bhutiani,
(a) PW1 Shri Chand Kumar Dhwan stated that he was posted as officer in Rajgarh Colony Branch and his duties were to release the cheques of saving accounts and clearing as deputed by Manager or Hall Incharge He further proved various documents and identified the handwriting of accused Ashok Pasrija on various documents detailed as under:
● He stated that name and address on the account opening form (Ex.PW1/A) in the name of Malti Kapoor and L. M. Kapoor was written in handwriting of accused. He further stated that Ex.PW1/A did not bear account number but the ledger sheet (Ex.PW1/B) of aforesaid account was bearing account no. 12136. ● He proved entry dated 25.04.92 of Rs.14,975/- in respect of bill purchase i.e. DD No. 3/92 in hand of accused.
● He proved withdrawal slip dated 25.04.92 (Ex.PW1/C) amounting to Rs.15,000/- relating to account no. 12136 in handwriting of accused. He further stated that this slip had also been passed by accused.
RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija ● He further identified signatures of accused as passing officer on said cheque of Rs. 21,000/- dated 01.05.92 (Ex.PW1/D). He also stated that cheque had not been entered in ledger sheet (Ex.PW1/B).
He further identified the following debit slips and handwriting of the accused at different points.
● Debit slip of Rs.12,000/- dated 19.06.92 pertaining to account no. 12136 (Ex.PW1/E).
● Cheque No. 540503 dated 17.07.92 of Rs.16,000/- (Ex.PW1/F). ● Credit slip of account no. 12136 dated 30.06.92 for Rs.3,000/- (Ex,PW1/G). ● Debit slip (Ex.PW1/H) of account no. 12136 ● Debit slip of account no. 12136 (Ex.PW1/I) dated 12.11.92 of Rs.4,000/-. ● Debit slip (Ex.PW1/J) of same account dated 14.10.92 of Rs.3,600/-. ● Debit slip (Ex.PW1/K) of same account dated 24.04.92 of Rs.100/-.
(b) PW2 Shri B. R. Jain posted as Senior Manager in the Branch stated that his duties concerned deposit mobilization, sanctioning of loan and monitoring of advances and recovery. He further proved the various documents alongwith the handwriting of accused as different points as follows:
•Debit slip dated 09.04.92 for Rs.3,620/- relating to account no. 11914 (Ex.PW2/A). •Pass book of account no. SB 12136 of Malti Kapoor and L. M. Kapoor (Ex.PW2/B). He further stated that entries on pages 1, 20 & 21 mark Q42, 43 and 44 were in hand of accused (Ex.PW2/B1 to B3).
•Photocopy of document containing details of certain entries (Ex.PW2/C). •Slip containing certain notings and calculations in hand of accused (Ex.PW2/D). •Photocopy of another document containing certain figures and notings (Ex.PW2/E). •Three slips bearing certain notings and calculations in hand of accused (Ex.PW2/F to H). •He further stated that savings bank account opening form Ex.PW1/A was filled in hand of accused and bears his signatures as Manager at Q25.
(c) PW3 Shri Gulshan Kumar Gupta posted as officer in Rajgarh Colony Branch during the period June, 92 to July, 94 proved various documents including debit vouchers alongwith the handwriting of accused at different points which are detailed as under:
RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija •Transfer debit voucher (Ex.PW3/A) dated 14.01.94 in name of Smt. Sushila Devi Kapoor for Rs.41,545/- bearing signatures of accused at point A. •Ledger sheet (Ex.PW3/B) containing entry mark A in handwriting of accused. •He further stated that during investigation he looked for the corresponding voucher and debit entry in the day book (long book) but no corresponding voucher or debit entry in day book was found in the bank.
(d) PW4 Smt. Manju Sharma posted as Clerk in Rajgarh Colony Branch stated that the accused was second man in the branch. She further proved the statement of account Ex.PW1/B, voucher Ex.PW1/C in handwriting of accused. She further stated that as per Ex.PW1/B no cheque book was issued in this account.
(e) PW5 Ms. Anita Sagar, Clerk OBC, during the year 1992 proved the ledger sheet Ex.PW5/A pertaining to account no. 11914 in the name of Malti Kapoor and L. M. Kapoor. She further stated that transfer vouchers Ex.PW5/B1 to B6 probably bear the signatures of accused Ashok Pasrija.
(f) PW6 Shri Sanjay Kumar Verma, Clerk in the Rajgarh Colony Branch proved the entry in ledger sheet of account no. 11914 (Ex.PW5/A).
(g) PW7 Shri Anurag Gupta, Clerk in the Rajgarh Colony Branch stated that ledger sheet relating to account no. 12990 is in the name of Sushila Devi Kapoor (Ex.PW7/A). However he was unable to identify the signatures on Ex.PW7/A and vouchers D68 to D72.
(h) PW8 Shri H. N. Tandon, Senior Manager, Rajgarh Colony Branch stated that on 04.07.95 he had handed over documents to CBI Inspector vide seizure memo Ex.PW8/A i.e. (I) specimen signature card RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija for account no. 12169 vide Ex.PW8/A1; (ii) Account opening form of the said account vide Ex.PW8/A2; (iii) revised ledger sheet of the said vide Ex.PW3/3 and revised ledger sheet for account no. 12136 vide Ex.PW1/DA.
(i) PW9 Shri S. P. Jain, Manager, Rajgarh Colony Branch stated that he had handed over duty sheet mark PW9/A (D64), balance book of saving bank account, ledger no. 47 (D65) (mark PW9/B), long book (4 sheets) (mark PW9/C) during investigation.
(j) PW10 Smt. Neena Malhotra, Clerk-cum-Cashier in Rajgarh Colony Branch stated that accused Ashok Pasrija was the Manager Scale-II in the branch. She further identified various documents alongiwth signatures of accused Ashok Pasrija which are detailed as under:
•Withdrawal form (Ex.PW10/A & 10/B) bearing signatures of Ashok Pasrija. •Ledger sheet of account no. 11898 of Lalit Mohan Kapoor which account was closed by her (Ex.PW10/C).
•Ledger sheet of account no. 11899 of Smt. Malti Kapoor (Ex.PW10/D). •Withdrawal form dated 04.03.92 (Ex.PW10/E).
(k) PW11 Shri S. K. Jain, Officer, Rajgarh Colony Branch during the period 1990 till May, 1992 stated that accused Ashok Pasrija was the Hall Incharge and second man in the branch. He proved various documents alongwith signatures of accused at different places detailed as under:
•He stated that cheque book bearing cheque no. 540501 to 540525 (D14) pertaining to account no. 12136 were not issued by him as it is not entered in the cheque book issue register. He also stated that cheque book issue register (Ex.PW11/A) contained the entries in his hand. He further stated that the blank cheque requisition form contained signatures of accused as the Officer who had issued the cheque book (Ex.PW11/B) and also proved the cheque requisition form (Ex.PW11/C).
RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija •He stated that cheque book (Ex.PW18/K) containing leaf from 624271 to 624280 (Ex.PW18/A) in respect of account no. 12169 was issued to Sushila Devi Kapoor on 01.05.92. He further stated that cheque book requisition form (Ex.PW11/B) contained signatures of accused as the Officer issuing the cheque book.
•He further identified the pass book (D15) of account no. 12136 in the name of Smt. Malti Kapoor and L. M. Kapoor. He stated that entries contained at page 20 & 31 were in the hands of accused (i.e. Ex.PW2/B2 and Ex.PW2/B3). •He further stated that cheque book bearing number 623321 to 623330 (Ex.PW11/E) in respect of account no. 11914 was issued by accused and his signatures appear on the cheque requisition form (Ex.PW11/F).
•He also proved the certified copy of cheque book issue register (D36) Ex.PW11/G and stated that entry for issuing cheque book bearing leaf number 624271 to 624280 had not been issued by him and the entry bears initials of accused.
(l) PW12 Shri Mahavir Prasad Arora, Officer in Rajgarh Colony Branch stated that on 25.02.97 he handed over documents mentioned in seizure memo Ex.PW12/A i.e. original ledger sheet (Ex.PW3/A), original pay order (Ex.PW3/C), certified copy of cheque book issue register Mark A1 and certified copy of cheque book issue register Mark B.
(m) PW 14 Shri Vinay Kumar Sharma stated that he was posted as clerk in Rajgarh Colony Branch from 1991 to 1997 and accused Ashok Pasrija was the second person in the bank. He further stated that ledger Ex.PW10/C containing entries dated 04.03.1992 of Rs.11,220/- and a withdrawal entry for Rs.11,000/- were in his handwriting which were made on the basis of voucher dated 04.03.1992 i.e. Ex.PW14/A. He also identified the signatures of Chand Dhawan on corresponding credit voucher Ex.PW14/B. He further identified ledger of Malti Kapoor Ex.PW10/D containing the entries which were made on the basis of voucher Ex.PW14/C and Ex.PW14/D. He further identified the ledger sheet Ex.PW3/B. RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija
(n) PW15 Shri Jagdish Chand Nagpal stated that the was clerk in OBC, A-Block, Connaught Place and later on promoted as officer on 01.11.1998 wherein accused was also posted. He further stated that accused was thereafter transferred to Rajgarh Colony Branch. He further identified debit transfer voucher Ex.PW1/J (D10) in handwriting of accused Ashok Pasrija and Ex.PW15/A (D11).
(o) PW16 Shri V. K. Jain stated that during 1995 he was posted as officer in the Rajgarh Colony branch and joined the same in 1991. He further identified memo of dishonour Ex.PW16/A bearing his signatures (D16).
(p) PW17 Shri Mansa Ram stated that he was posted at Rajgarh Colony Branch on 03.03.1992.
•He further identified the ledger sheet Ex.PW1/C of SB Account no. 11898 in the name of Lalit Mohan Kapoor and stated that entry dated 03.03.1992 (Ex.PW10/C) was made on basis of bank slip dated 03.03.1992 for Rs.100/- (Ex.PW17/A). He also identified the words AOFR written by him on Ex.PW10/C which means account opening form is required. •He also identified ledger sheet Ex.PW10/D of account no. 11899 in the name of Malti Kapoor containing entry dated 03.03.1992 made on the basis of voucher for Rs.100/- (D53) (Ex.PW17/B). He further stated that deposit of cash of Rs.100/- in both the accounts was allowed by Shri Ashok Pasrija and the voucher was in handwriting of Ashok Pasrija.
(q) PW21 Shri K. L. Kapoor identified various documents as detailed under:
• Signatures of Shri P. L. Bhatnagar, the then Chief Manager of the bank who has since expired on the letter Ex.PW21/A. • Original ledger of account no. 11914 (D56) of Smt. Malti Kapoor and Shri Lalit Mohan Kapoor (Ex.PW21/B) alongwith original specimen signatures card (Ex.PW18/A).
• Certified copy of cheque book issue register for issue of cheque book 820671 to 820940 (Ex.PW21/C) • He also stated that in account no. 11914 in the name of Malti Kapoor and Lalit Mohan Kapoor a sum of Rs.3,630/- was deposited by cash on 05.03.1992 and sum RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija of Rs.3,620/- has been withdrawn on another date. • He further stated that original ledger sheet contains endorsement to the effect "cheque book reported lost and account closed" which bears signatures of Ashok Pasrija.
• He further stated that Ex.PW21/A (D33) shows that account no. 12990 existed in the name of Sushila Devi Kapoor.
• He also proved the account long book dated 01.05.1992 (D17) Ex.PW21/D, certified copy of account long book dated 17.07.1992 (D18) Ex.PW21/E. • He also stated that Ex.PW21/D does not contain any entry on credit side against account no. 12136 whereas debit side shows entry of Rs.21,000/- against account no. 12169 which reflected that amount has not been debited in ledger in account no. 12136. He also clarified that account no. 12169 had been corrected as 12136. • He further stated that withdrawal cheque no. 540502 dated 01.05.1992 for Rs. 21,000/- in respect of account no. 12136 had been passed by accused (Ex.PW1/D) but the ledger (Ex.PW1/B) did not show any debit entry of Rs.21,000/-. • He further stated that Ex.PW21/E did not contain any credit entry of Rs.21,000/- in respect of account no. 12136 and on the debit side there was an entry of Rs. 16,000/- in respect of account no. 12136.
• He further proved D62 which is account long book for 02.01.1994 and also contains day book of 02.01.1994 of both debit and credit side (Ex.PW21/F). • He further stated that long book does not contain any credit entry in respect of account no. 12136.
• He also identified ledger of account no. 11899 (Ex.PW10/D) and stated that account was opened on 03.03.1992 with cash deposit of Rs.100/-. • He further stated that bill purchase/discounted register containing demand draft no. 541 to 553 (Ex.PW21/G) contained entry of demand draft no. 548 for Rs.24,200/- in respect of account of Malti Kapoor (account no. 11899) and showed discounting of cheque of Rs.24,200/- and credit to account holder Malti Kapoor.
• He further stated that Ex.PW10/E which is cash withdrawal for 04.03.1992 of Rs. 24,000/- from account no. 11899 and the voucher was passed for payment by accused.
• He further identified Ex.PW14/A (D48) i.e. cheque transfer voucher for Rs.11,220/- for DD no. 547/92 (Ex.PW18/F) (pay-in-slip for credit in SB account no.11898 belonging to Lalit Mohan Kapoor for Rs.11,220/- in the hand of accused, Ex.PW14/B (D48) which is credit voucher for Rs.11,220/- of account no. 11898 of Lalit Mohan Kapoor and entry of Rs.11,220/- in Ex.PW21/G.
(r) PW24 Shri K. L. Bhutiani stated that during 1993 to 1995, he RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija was working in inspection department as Deputy Chief Manager in OBC. Further, during December, 1994 he conducted inspection in OBC branch, Rajgarh as per instructions of Head Office, it was revealed that Ashok Pasrija (Manager) had defrauded the bank with an amount of Rs.6.50 lakhs approximately by way of making false entries without debiting he account and transferring the amount from one account to other without any confirmation/instructions of the depositors.
7. Prosecution also examined the following witnesses in whose accounts the amount was unauthorizedly transferred or were operated upon by accused Ashok Pasrija. The said witnesses are PW13 Shri Yog Raj Grover, PW18 Shri Lalit Mohan Kapoor, PW20 Brig. K. C. Sukhija (Retd.) & PW22 Shri Satpal Makkar.
(a) PW13 Shri Yog Raj Grover stated that the had never opened any account in Oriental Bank of Commerce, Rajgarh Colony Branch and the account opening form Ex.PW1/C did not bear his signatures. He also denied his signatures on the photocopy of voucher Ex.PW13/B dated 27.08.1994. He also stated that he did not know L. M. Kapoor, Malti Kapoor or Sushila Devi.
(b) PW18 L. M. Kapoor depsed that he had opened joint account no. 11914 on advice of Ashok Pasrija and deposited Rs.3,630/- for opening the account vide deposit slip Ex.PW18/B. Further, he never visited the bank and accused used to send the bank officials to the house for transactions for home service facility. Further, he identified his signatures alongwith his wife on the account opening form (Ex.PW1/A) and the specimen signature card (Ex.PW18/A).
He further identified/proved various documents (withdrawal slip, RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija cheques, withdrawal form etc.) which are detailed as under:
• Withdrawal slip Ex.PW2/A and stated that the same did not bear his signatures and the same were fake. He denied having withdrawn Rs.3,620/- through this slip. • He identified cheque (D60) Ex.PW18/C signed by him at point A and stated that this cheque was dishonoured vide intimation slip Ex.PW16/A. • He further identified cheque (D61) Ex.PW18/D bearing his signatures and stated that amount of the cheque (Rs.9,000/-) was paid to him by accused at his residence. He further deposed that cheque book of said account was lost by him and was advised by accused to open a fresh account and as such fresh account no. 12136 was opened in his name alongwith his wife. • He further stated that withdrawal form Ex.PW1/C of Rs.15,000/- regarding SB account no. 12136 did not bear his signatures at Q5 and the same were fake. • He also identified cheque for Rs.6,000/- dated 28.04.1992 given to Ashok Pasrija for withdrawal of amount from account no. 12136 bearing his signatures (Ex.PW18/E).
• He further stated that cheque Ex.PW1/D and Ex.PW1/F vide which Rs.21,000/-
and Rs.16,000/- were withdrawn by accused were against his instructions. • He further stated that he did not know Yograj Grover or Suman Grover ad had not given any instructions for transfer of Rs.12,000/- from his account to account no. 12123 as shown in transfer voucher dated 19.06.1992 (Ex.PW1/E). Further he had not instructed Ashok Pasrija for making any credit entry dated 17.07.1992 for Rs. 16,000/- in his account.
• He also stated that after insistence, Ashok Pasrija gave him personal account book in which he used to write entries of account no. 12136 and 12169 and the previous entries of account no. 11914 were also mentioned therein at Ex.PW2/B1, B2 and B3.
• He further stated on seeing the cash deposit voucher of Rs.100/- dated 03.03.1992 pertaining to account no. 11898 (Ex.PW17/A) and stated that he had neither opened the said account nor deposited Rs.100/- in the said account and the same was not within his knowledge.
• He also denied any knowledge about deposit of demand draft (Ex.PW14/D) in account no. 11898 as the account was not opened by him. • He also stated that the deposit slip (Ex.PW18/F) was not filled by him. • He also denied withdrawal of Rs.11,000/- from account no. 11898 vide withdrawal slip Ex.PW10/B and stated that his signatures at Q38 on reverse side are forged. • He further denied having withdrawn Rs.320/- as mentioned in Ex.PW10/A and stated that signatures at Q53 and Q54 are forged.
• He also denied having written "close account" as mentioned at Q54 since the RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija account was not to his knowledge.
• He also stated that his wife Malti Kapoor had not opened any account as mentioned in Ex.PW14/C, Ex.PW14/D and Ex.PW17/B. He also stated that his wife had not deposited or instructed for deposit of demand draft of Rs.24,200/- from GDA to account no. 11899 and the same was opened by the bank without their knowledge.
• He also denied any knowledge regarding deposit slip (Ex.PW18/G) and stated that the same is not in handwriting of his wife Malti Kapoor. • He further stated that signatures of Malti Kapoor at Q40 on the withdrawal slip (Ex.PW10/E) dated 04.03.1992 vide which Rs.24,000/- were withdrawn from account no. 11899 were forged.
• He further stated that withdrawal slip (Ex.PW18/H) which shows instruction on reverse side "please close my account" under the signatures of Malti Kapoor at Q57 were forged. The account was stated to be not to their knowledge. • He further stated that instead of depositing the demand draft of Rs.24,200/- in joint account no. 11914, the same was misappropriated by the bank vide account no. 11899 without their knowledge.
• He further stated that account no. 12169 was opened in Oriental Bank of Commerce, Rajgarh Colony Branch in joint name with his mother Sushila Devi Kapoor and identified signatures on account opening form Ex.PW8/A2 and specimen signatures card Ex.PW8/A1.
• He denied having deposited any cash of Rs.40,300/- in account no. 12169. • He also stated that he never instructed Ashok Pasrija for transfer of Rs.45,000/- to account no. 12123.
• He also stated that no instructions were given for transfer of Rs.22,000/- and Rs.
16,000/- to account no. 12123 of Yograj Grover as mentioned in Ex.PW5/B3 & B4. • He also denied having given instructions for transfer of Rs.6,000/- from account no.
12123 vide Ex.PW5/B2.
• He also denied having given instructions for transfer of Rs.2,500/- to account no.
12597 vide Ex.PW5/B6.
• He further stated that cheque no. 820864 dated 31.12.1993 (Ex.PW18/I) for withdrawal of sum of Rs.29,000/- w from account no. 12169 was not issued by his mother and her signatures at Q90 on reverse side are forged. • He also denied issuing of cheque book of said series by the bank. • He also denied any knowledge as to how the sum of Rs.30,000/- was credited to his account no. 12169 from account no. 12557.
• He further stated that various documents were handed over to CBI vide search-
cum-seizure memo Ex.PW18/J (personal account book Ex.PW2/B, cheque book of account no. 12169 Ex.PW18/E, cheque Ex.PW18/C and ledger of bank Ex.PW16/A RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija and Ex.PW18/L).
• He also clarified that his mother had not opened any other account in the bank except 12169.
(c) PW20 Brig. K. C. Sukhija stated that his son Neeraj Sukhija was having account no. 12590 in Oriental Bank of Commerce, Rajgarh Colony, Delhi wherein his neighbour Ashok Pasrija was posted as Manager. He further stated that accused was staying in neighbourhood and the passbook was handed over by his son to the accused.
Thereafter, in 1994 he came to know that accused is involved in some fraud in the bank and approached him. He further stated that accused gave a written confession to him on 10.05.1995, 12.05.1997 and 17.05.1997 which are in handwriting of accused and endorsement was made by the witness on the top of the confession given on 10.05.1995 and 12.05.1997 (It may be observed that the said statements are dated 10.05.1995, 12.05.1995 & 17.05.1995). The said confessions were proved as Ex.PW20/A, Ex.PW20/B and Ex.PW20/C. The witness further deposed that accused told him that he was involved in a fraud of Rs.6.00 lakhs in various savings accounts in the branch including the account of son of witness.
(d) PW22 Shri Satpal Makkar stated that he had a bank account in OBC, Rajgarh Colony Branch which was opened at asking of Mr. Pasrija (Manager) and denied having instructed the bank to transfer/debit Rs.12,000/- to his account from the account of Sushila Devi Kapoor. He denied having known Sushila Kapoor or any knowledge about Ex.PW5/B. This witness was declared hostile on the point of identity of accused Ashok Pasrija as he failed to identify the accused.
RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija
8. Other witnesses PW19: Shri A. K. Soin stated that he was posted in SBI, GK-II in April, 1992., He further identified his signatures on the cheque returning forwarding memo to the depositor dated 09.04.1992 (Ex.PW18/L). He further stated that vide aforesaid memo Cheque Ex.PW18/C and cheque returning memo Ex.PW16/A from the paying bank (OBC) was returned back to the depositor.
PW23 Dr. M.A. Ali [Sr. Scientific Officer Gr.-I (Document), CFSL, CBI, New Delhi] proved the opinion of the expert Shri T. R. Nehra as to the handwriting on various documents forwarded for examination.
PW25 Inspector Virender Thakran (Anti Corruption Branch, GNCT, Delhi) deposed as to the conduct of investigation.
9. In his statement u/s 313 Cr.P.C. accused denied the case of prosecution and claimed that he was innocent. Accused further sought an opportunity to lead evidence in defence and examined himself in defence. Accused relied upon judgements passed in civil cases filed by Oriental Bank of Commerce for recovery of amount against him alongwith other persons which were dismissed.
Accused took a stand that prosecution is based on insufficient evidence since the civil case filed by OBC for the recovery of amount against him as well as other persons as mentioned in the respective suits were dismissed. The said cases filed by OBC and as relied by accused are detailed as under:
1. Suit No.611/07, OBC vs. 1) Sudershan Kumar Raheja, 2) Ashok Pasrija, decided vide judgement dated 03.06.09 by Shri Pulastaya Pramachala, CCJ/ ARC East, KKD, Delhi. The certified copy of the judgement along with decree is Ex.DW1/A. RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija
2. Suit No.91/07, OBC vs. 1) Rashmi Gulati, 2) Ashok Pasrija decided vide judgement dated 21.04.09 by Shri Pulastaya Pramachala, CCJ/ ARC East, KKD, Delhi. The certified copy of the judgement along with decree is Ex.DW1/B.
3. Suit No.735/07, OBC vs. 1) Neeraj Sukhija, 2) Ashok Pasrija, decided vide judgement dated 01.06.09 by Shri Pulastaya Pramachala, CCJ ARC East, KKD, Delhi. The certified copy of the judgement along with decree is Ex.DW1/C. A civil appeal no.44/04 (OBC vs. P.K. Rawat and Ashok Pasrija) was preferred against judgement and decree dated 30.10.04 passed in suit No.M15/04/96 dated 17.03.04 decided by Ms. Veena Rani, Civil Judge, KKD Courts, Shahdara. The said appeal was decided by Shri A.S. Jaichandra, Addl. District & Sessions Judge vide judgement dated 09.04.08. The certified copy of the judgement alongwith decree sheet is Ex.DW1/D. He further stated that all the four cases referred to above were decided against OBC.
10. Ld. Counsel for accused assailed the case of prosecution on the following grounds:
i) That the prosecution failed to obtain sanction u/s 19 of PC Act, 1988 and no evidence had been led on record to prove that the accused was not in service on the date of filing of charge-sheet.
ii) Reliance was placed upon the judgements passed in the civil suits/appeal Ex.DW1/A to Ex.DW1/D wherey claim filed by Oriental Bank of Commerce against the accused alongwith other defendants stated therein was dismissed.
iii) It was also contended that the prosecution had filed an extract of the long book instead of producing the original or the complete copy certified under the Banker's Book Evidence Act to prove the alleged irregularities and the witnesses who had made the entries in the bank record had not been examined.
iv) The seizure memos relied by the prosecution were also disputed RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija on the ground that the same had not been proved by the concerned witnesses who had allegedly signed the same.
v) It was also contended that evidence had not been led on behalf of prosecution to prove that accused was appointed as Hall Incharge from October, 1991 to January, 1993.
vi) It was also submitted that the withdrawal voucher/cheque could be passed on telephonic confirmation of the account holder as per practice and no evidence had been led to show that the account holder had not telephonically confirmed the withdrawal of the amount.
vii) The testimony of Brig. K. C. Sukhija (PW9) was stated to be untrustworthy on the ground that there was no reason for accused to make the admission before him. The same were stated to have been fabricated by prosecution.
viii) The counsel for accused also placed reliance on Magan Bihari Lal vs. State of Punjab (1977) 2 SCC 210, Rajkumar vs. State of Haryana 1997 (1) Chandigarh Criminal Cases 478 (HC), Raj Mani vs. State 1997 (2) CC Cases 101 (HC), P. K. Vasudeva vs. Zenobia Bhanot AIR 1999 SC 3322 and Avtar Singh & Ors. vs. State of Punjab 1997 (2) CC Cases 24 (HC) in support of the contentions.
On the other hand, ld. PP for CBI pointed out that the testimony of witnesses clearly brings out that the entries were fabricated by accused whereby the amount was wrongly credited and debited in various accounts without any authorization from account holders for wrongful gain. The other contentions made on behalf of accused were RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija also refuted and it was pointed out that there was no requirement for seeking sanction u/s 19 of PC Act, 1988 as the accused had been dismissed prior to filing of chargesheet. It was also submitted that the illegal transactions made by accused have been proved by the relevant witnesses and also corroborated by opinion of handwriting expert along with extra judicial confessions/written admissions made by accused before Brig. K. C. Sukhija.
11. I have heard ld. PP for CBI, counsel for accused and perused the record carefully.
As per banking practice any amount debited or credited in a bank account is supported by a voucher on the basis of which the transaction is effected and the said transaction is further reflected in the relevant ledger and long book by way of specific entry. The bank also maintains 'day book' for reflecting relevant entries and balance is also tallied in 'balance book' for the purpose of reconciliation of accounts. The transactions effected by accused in the present set of cases reflect that the transfer entries were illegally made and also did not tally in the relevant ledgers maintained by the bank and clearly leads to only inference that the same were effected fraudulently for wrongful gain by the accused.
There is sufficient evidence on record to prove that the accused Ashok Pasrija was working as hall Incharge in the Oriental Bank of Commerce, Rajgarh Colony Branch since October, 1991 till Jan., 1993. Further, as hall incharge, it was duty of accused to see opening and closing of accounts, balancing of books, joint custody of cash, maintenance and deployment of staff and other day to day duties. Testimony of several witnesses is categorical that accused Ashok Pasrija was the Hall Incharge and in aforesaid context it was also RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija clarified that branch incumbent of every branch appoints Hall Incharge and there is no vacancy or circular issued for post of Hall Incharge. The contention raised on behalf of accused that he was not the Hall Incharge appears to be meritless as evidence of prosecution witnesses could not be dented to aforesaid extent.
It has also been pointed on behalf of prosecution on the basis of evidence led on record that though the amounts were wrongly credited by accused Ashok Pasrija, the same could not be detected during routine reconciliation as the accused maneuvered during the process of reconciliation of accounts and the entries were made by the subordinate staff in good faith on the basis of instructions given by the accused who was their senior officer and Manager in the bank.
12. The illegal transactions manipulated by accused Ashok Pasrija in account no. 11914, 11898, 11899, 12136, 12169/47 may now be scrutinized in the light of evidence led on record to see if the same have been established on record.
(i) Account No. 11914 Investigation revealed that Shri L. M. Kapoor while working in a private concern at Mathura and Shri Ashok Pasrija workinig in OBC, Mathura, were residing in neighbourhood and known to each other. Later on Shri L. M. Kapoor was transferred to Delhi and Shri Ashok Pasrija was also transferred to Delhi. Shri L. M. Kapoor and Smt. Malti Kapoor had applied for plots in Indra Puram, GDA Scheme in 1989-90. Shri L. M. Kapoor and Smt. Malti Kapoor had deposited Rs.11,220/- and Rs.24,200/-, respectively and their names did not figure in lucky draw. So they wanted their money back which was to be drawn on OBC, Ghaziabad. Hence, they approached Shri Ashok Pasrija who advised them to open an account in OBC, Rajgarh Colony wherein he was working as Hall Incharge. It was also revealed in investigation that Shri L. M. Kapoor and Smt. Malti Kapoor signed an account opening form and specimen signature card but no account number was mentioned by Shri Ashok Pasrija in the account opening form and specimen signature card. The AOF and specimen signature card were recovered from the premises of Shri Ashok Pasrija during the house search. On 05.03.92 the account No.11914 was opened with a cash deposit of Rs.3,630/-.
RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija Investigation also revealed that Shri Ashok Pasrija withdrew Rs.3,620/- from account No.11914 on 09.04.92 by forging signatures of Shri L. M. Kapoor on a withdrawal form and the account was closed by Shri Ashok Pasrija by writing cheque book reported lost.
Evidence led on record shows that account opening form (Ex.PW1/A) alongwith specimen signature card (Ex.PW23/F) were recovered from the premises of accused Ashok Pasrija as per seizure memo (Ex.PW18/B) in the search conducted at the house of accused on 17.06.1995 as deposed by PW25 Inspector Virender Thakran. Obviously there does not appear to be any probable reason for retaining the aforesaid original documents at the residence of accused pertaining to said account which has not been mentioned on account opening form. It is also pointed out by ld. PP that the account opening form was allowed by Shri Ashok Pasrija himself as his signatures appear on the account opening form at Q25 as Manager and the same signatures have also been opined by the Handwriting Expert in his opinion (Ex.PW23/A).
So far as deposit of amount of Rs.3,630/- is concerned, the same is stated to have been deposited at the time of opening of account by PW18 Shri L. M. Kapoor. However, with respect to withdrawal of sum of Rs.3,620/- on 09.04.1992, the signatures and writing on debit voucher (Ex.PW2/A) at Q61, Q62 and Q63 were denied by Shri L. M. Kapoor in his statement. The opinion of Handwriting Expert is to the effect that signatures at Q61 and writing at Q62 & Q63 are in the handwriting of accused Ashok Pasrija. The accused as such withdrew and operated the account without concurrence of the account holder Shri L. M. Kapoor and Smt. Malti Kapoor.
It is also pointed out by ld. PP for CBI that the pass book of account no. 12136 reflected the transactions in respect of account no.
RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija 11914, 12136 and 12169 though only the amount of respective accounts has to be normally reflected in the concerned form. It is also pointed out that said entry pertaining to 11914 were made in pass book of 12136 on page no. 30 & 31 (Ex.PW2/D3) by accused Ashok Pasrija contrary to banking practice and the same was confirmed to be in handwriting of accused at Q44. The evidence on record categorically establishes that the transaction was illegally made by the accused.
(ii). Account No. 11898 Investigation revealed that on 03.03.92 Shri Ashok Pasrija opened A/c No.11898 in the name of Shri L. M. Kapoor with a cash deposit of Rs.100/- only, without knowledge of Shri L. M. Kapoor. An amount of Rs.11,220/- was credited on 04.03.92 by a DD No.547, OBC, Ghaziabad in the account. On the same day Shri Ashok Pasrija withdrew Rs. 11,000/- from the account by forging signatures of Shri L. M. Kapoor on a withdrawal form. On 19.04.92 Shri Ashok Pasrija withdrew the remaining amount of Rs.320/- from the account by forging signatures of Shri L. M. Kapoor. Shri Ashok Pasrija himself made a request 'please close my A/c' on backside of withdrawal form and closed the account.
To prove the aforesaid circumstances the ledger sheet (Ex.PW10/C) showing transactions were proved by PW10 Smt. Neena Malhotra. She further stated that the withdrawal forms (Ex.PW10/A) thereby withdrawing a sum of Rs.320/- and Ex.PW10/B thereby withdrawing a sum of Rs.11,000/- were signed by Shri Ashok Pasrija at point B. It has been pointed out by ld. PP for CBI that signatures of L. M. Kapoor on the withdrawal form at Q38 and Q53 were opined by the Handwriting Expert to be in the handwriting of Shri Ashok Pasrija as per Ex.PW23/M. The testimony of PW18 Shri L. M. Kapoor in respect of account no. 11898 is to the effect that he had neither opened the said account nor deposited Rs.100/- in the said account and the transactions were not to his knowledge. He specifically denied having RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija withdrawn amount of Rs.11,000/- as per Ex.PW10/B or amount of Rs. 320/- as per withdrawal slip (Ex.PW10/A) and stated that his signatures had been forged.
It may also be observed that the entries in the ledger sheet (Ex.PW10/C at Q37 were also opined by the Handwriting Expert n the hands of Shri Ashok Pasrija as per Ex.PW23/K. This account was fictitiously operated by accused as on the ledger sheet it was mentioned "AOFR" which means account opening form required and the same was never maintained since it was fictitious account. The evidence on record clearly establishes that the account was fictitiously operated by accused as amount received by L. M. Kapoor by DD was unauthorizedly deposited in said account without his knowledge and later on wrongly withdrawn by the accused thereby making a wrongful gain.
(iii). Account No. 11899 Similarly on 03.03.92 an account No.11899 in the name of Smt. Malti Kapoor was opened by Shri Ashok Pasrija with a cash deposit of Rs.100/- without her knowledge. An amount of Rs.24,200/- was credited on 04.03.92 in the account by DD No.548 OBC, Ghaziabad. Shri Ashok Pasrija withdrew Rs.24,000/- on 4.3.92 by forging signature of Smt. Malti Kapoor on a withdrawal form. On 19.4.92 Shri Ashok Pasrija withdrew the remaining balance of Rs.300/- by forging signatures of Smt. Malti Kapoor on a withdrawal form He himself wrote 'please close my A/c' on backside of withdrawal form and closed the account.
To prove the aforesaid circumstances the ledger sheet of account no. 11899 (Ex.PW10/D) was proved by Smt. Neena Malhotra. This account as per ledger sheet existed in the name of Malti Kapoor. Further, PW18 L. M. Kapoor, husband of Malti Kapoor stated that no such account was opened by his wife Malti Kapoor and the same was opened by the bank without their knowledge. He further denied about the transactions reflected in the said account vide deposit slip RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija Ex.PW18/G, withdrawal slip Ex.PW10/E dated 04.05.1992 whereby sum of Rs.24,000/- were withdrawn and denied signatures of Malti Kapoor on the same. PW18 further clarified that demand draft of Rs. 24,200/- instead of being deposited in joint account no.11914 seems to be misappropriated and deposited in account no.11899 without their knowledge as per deposit slip Ex.PW18/G and the amount was further withdrawn vide withdrawal slip Ex.PW10/E for Rs.24,000/- under the signatures of Malti Kapoor. It may be noticed that the signatures at Q40 and Q41 were opined by Handwriting Expert to be in handwriting of accused as per Ex.PW23/M and Ex.PW23/K. The remaining balance amount in the said account of Rs.300/- was further withdrawn on 19.04.1992 vide withdrawal slip Ex.PW18/H under signatures of Malti Kapoor. PW18 stated that the endorsement on the back of this withdrawal slip "close this account" under signatures of Malti Kapoor were forged. The Handwriting Expert also opined vide Ex.PW23/M that the signatures on the withdrawal slip at Q57 and the endorsement at Q59 were in the handwriting of accused Ashok Pasrija. The account opening form of this account could not be found in bank record which reflects that the same was fictitiously operated. The evidence on record clearly establishes that the account was fictitiously operated by accused as amount received by Malti Kapoor by DD was unauthorizedly deposited in said account without her knowledge and later on wrongly withdrawn by the accused thereby making a wrongful gain.
(iv). Account No. 12136 Shri Ashok Pasrija is alleged to have cheated the bank by manipulating the following transactions.
(a). As per charge-sheet Shri L. M. Kapoor and Smt. Malti Kapoor misplaced/lost the cheque book No.623321 to 623330 (issued in A/c No.11914). Shri L. M. Kapoor RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija approached Shri Ashok Pasrija who advised them to open a new account. So a new account No.12136 was opened on 24.04.92 with a cash deposit of Rs.100/- only. No separate account opening form or specimen signature card was found on bank's record. On 25.04.92 Shri Ashok Pasrija withdrew Rs.15,000/- from the account by forging signature of Shri L. M. Kapoor on a withdrawal form.
To prove the aforesaid circumstances the ledger sheet of aforesaid account in name of L. M. Kapoor and Malti Kapoor (Ex.PW1/B) was proved by PW1 Shri Chand Kumar Dhawan. PW1 also proved account opening form (Ex.PW1/A) pertaining to this account and also deposed with reference to the various entries reflected in the aforesaid ledger sheet. With reference to the withdrawal of Rs.15,000/- on 25.04.1992, Shri L. M. Kapoor (PW18) deposed that signatures on the withdrawal form (Ex.PW1/C) were not in his handwriting as well as writing at Q5 on the reverse of the same. The signatures on the withdrawal form as passing officer as well as signatures as Malti Kapoor at Q5 were opined by the Handwriting Expert to be in the handwriting of Shri Ashok Pasrija. The corresponding entry in the ledger showing debit of Rs.15,000/- at Q2 was also opined to be in the handwriting of Ashok Pasrija as per opinion of Handwriting Expert (Ex.PW23/K). PW1 Shri Chand Kumar Dhawan, Officer in the bank also identified handwriting of accused Ashok Pasrija with reference to various entries made therein.
(b) Further Shri Ashok Pasrija made transfer of Rs.12,000/- dated 19.6.92 to A/c No. 12123 (a fictitious A/c in the name of Yograj Grover) vide voucher Ex.PW1/E and Rs.100/- dated 25.7.92 vide voucher Ex.PW1/H to SB A/c No.12557 and Rs.3,600/- dated 24.10.92 vide voucher Ex.PW1/J to A/c No.12590 from A/c No.12136 by preparing debit transfer vouchers unauthorizedly without any debit confirmation from account holders.
To prove the aforesaid circumstances the evidence led on record may be analysed.
With reference to same, PW1 Shri Chand Kumar Dhawan proved the relevant entries vide which the aforesaid transfer for amount RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija of Rs.12,000/-, Rs.100/- and Rs.3,600/- were made, as Ex.PW1/E, Ex.PW1/H & Ex.PW1/J. The handwriting of the accused on the same was identified by Pw1. As per the opinion of Handwriting Expert (Ex.PW23/K & Ex.PW23/M), signatures of the passing officer at Q8, Q48 & Q11 were in the hand of Shri Ashok Pasrija and in the aforesaid context, PW18 Shri L. M. Kapoor deposed that the said amount in Ex.PW1/E had been credited without his instructions.
(c). Shri Ashok Pasrija further credited in A/c No.12136 Rs.15,000/- on 30.6.92 by transfer voucher Ex.PW1/G from A/c No.3988 and Rs.4,000/- on 12.11.92 vide voucher Ex.PW1/I from A/c No.12590 without any confirmation from account holders.
To prove the aforesaid circumstances the evidence led on record may be seen as under:
PW1 in the aforesaid context proved credit slips of account no. 12136 (Ex.PW1/G & Ex.PW1/I) vide which the credit entries were made. The credit entry for Rs.4,000/- was made from account no. 12590 while credit entry of Rs.15,000/- as per Ex.PW1/G was made from account by transfer and the relevant account number has not been specified. During course of arguments prosecution has not been able to show beyond reasonable doubt if these two entries are made fraudulently without concurrence of account holder. PW18 in aforesaid reference failed to depose anything. As such, no adverse inference is to be drawn with respect to said two entries.
(d). It was also revealed during the course of investigation that Shri L. M. Kapoor gave a blank signed cheque No.540502 to Shri Ashok Pasrija with a request to withdraw a sum of Rs.9,000/- but Shri Ashok Pasrija filled Rs.21,000/- dated 1.5.92 and withdrew the amount without debiting the amount in the ledger sheet of A/c No.12136 since there was balance of Rs.74/- only.
To prove the aforesaid circumstances the evidence led on record RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija may be referred as under:
With reference to aforesaid entry, PW18 Shri L. M. Kapoor deposed that he had given two cheques to Shri Ashok Pasrija for withdrawing Rs.9,000/- and Rs.6,000/- (Ex.PW1/D & Ex.PW1/F) but the amount withdrawn was Rs.21,000/- and Rs.16,000/- against his instructions. He further stated that the said blank cheques were given to accused in good faith which bear the signatures of PW18 but the cheques were not filled by him. In the aforesaid context, opinion of the Handwriting Expert was obtained in respect of the amount filled on cheques Ex.PW1/D and Ex.P W1/F, it was opined by Handwriting Expert that handwriting encircled Q7 on Ex.PW1/D and Q9 & Q10 on Ex.PW1/D was in the handwriting of accused as per Ex.PW23/K and Ex.PW23/M. It has also been pointed out by the prosecution that amount of Rs.21,000/- has not been debited in the ledger sheet Ex.PW1/B as deposed by PW1 Shri Chand Kumar Dhawan. It is also pointed out that entry of withdrawal of Rs.21,000/- was made in the long book maintained for 01.05.1992 (Ex.PW21/D) since the amount was withdrawn on the basis of voucher and the entry was made by the concerned person.
It may also be noticed that Ex.PW1/B reflects that the balance on 01.05.1992 when the withdrawal of Rs.21,000/- was made, was only Rs.74/- in the account and as such the debit entry does not appear to have been made. The evidence on record clearly establishes that the transactions were illegally carried by accused.
(e). Further Shri Ashok Pasrija made a fictitious credit entry of Rs.16,000/- on 17.7.92 in ledger sheet of A/c No.12136 without any voucher. Shri Ashok Pasrija withdrew Rs. 16,000/- by filling and passing the cheuqe No.540503 duly signed by Shri L. M. Kapoor whereas Shri L. M. Kapoor had asked Shri Ashok Pasrija to withdrew Rs.6,000/- only vide this cheque.
RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija To prove the aforesaid circumstances the evidence led on record may be analysed.
In the aforesaid context PW1 Shri Chand Kumar Dhawan deposed that cheque no.540503 dated 17.07.1992 of Rs.16,000/- is in hand of accused and also passed by him. PW18 Shri L. M. Kapoor in this context stated that cheque Ex.PW1/F was withdrawn against his instructions as he had given blank cheque to the accused.
The prosecution has also pointed out that a credit entry dated 17.07.1992 in the ledger sheet of account no. 12136 is fake as the same is not supported by any voucher and as per deposition of PW21 Shri K. L. Kapoor who proved the certified copy of account long book dated 17.07.1995 (D18) Ex.PW21/E. He stated that Ex.PW21/E contained first page of long book which is long book page no. 57 and the next two pages are day book for 17.07.1992 and further next two pages are the general ledger of SB 47 and SB 48 out of all the SB ledgers. He further explained that Ex.PW21/E does not contain any credit entry of Rs.21,000/- in respect of account no. 12136 and on debit side there is an entry of Rs.16,000/- in respect of account no. 12136. This entry is stated to be fake since the amount has been shown to be debited but there is no corresponding credit entry.
The fact remains that accused withdrew cheque for Rs.16,000/- by faking the signatures as revealed in deposition of witnesses and also made fictitious entry dated 17.07.1992 for Rs.16,000/- in the ledger as the same is not supported by any voucher and has not been reflected in the long book.
It may also be noticed that credit entry dated 17.07.1992 for Rs. 16,000/- marked as Q1 was also forwarded for examination by the Handwriting Expert who as per Ex.PW23/K opined the same to be in RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija the handwriting of accused Ashok Pasrija.
(v). SB Account No. 12169/47(a). Investigation revealed that on 1.5.92 Smt. Sushila Devi Kapoor and Shri L. M. Kapoor opened an A/c No.12169 with a view that balance in Canara Bank, Agra, are transferred to OBC, Rajgarh Colony.
Investigation revealed that Smt. Sushila Devi Kapoor asked Shri Ashok Pasrija to transfer her A/c No.12169 balance to PNB, Nizamuddin (West) A/c. Shri Ashok Pasrija made a fake credit entry for Rs.40,300/- on 2.1.94 without any voucher to compensate the balance. He further debited Rs.41,525/- on 14.1.94 for preparation of a pay order for Rs. 41,500/- and the amount was utilised by Smt. Sushila Devi Kapoor in her A/c No.9634, PNB Nizamuddin (West). Shri Ashok Pasrija also opened and operated A/c No.12990 in the name of Smt. Sushila Kapoor for transfer purposes.
(b). On 30.5.92 an amount of Rs.45,000/- was transferred to A/c No.12123 (a fictitious account maintained by Shri Ashok Pasrija).
To prove the aforesaid circumstances the evidence led on record may be seen.
In the aforesaid context, PW18 Shri L. M. Kapoor deposed that they had never deposited any cash of Rs,40,300/- in account no. 12169 as CDR proceeds. Further, no instruction was given to Ashok Pasrija for transfer of Rs.45,000/- to account no. 12123. Ld. PP for CBI has submitted that there is no voucher in the bank to support the credit of Rs.40,300/- referred to above. The said entries are also pointed to be missing in account long book for 02.01.1994 though the entries are reflected in the ledger sheet of account no. 12169. The aforesaid evidence clearly leads to only inference that the entries were fabricated by accused.
(c). On 9.6.92 Shri Ashok Pasrija transferred an amount of Rs.6,000/- to SB A/c 12123 by preparing transfer voucher without debit confirmation.
RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija
(d). Similarly he transferred Rs.22,000/- on 27.6.92 and Rs.1,600/- on 4.8.92 to A/c No. 12123 without debit confirmation.
(e). On 20.8.92 an amount of Rs.12,000/- was transferred to CA No.2515 on the basis of transfer voucher signed by Shri C. K. Dhawan, the then officer, OBC, Rajgarh Colony, without debit confirmation on the instructions of Shri Ashok Pasrija.
(f). Shri Ashok Pasrija transferred Rs.2,500/- on 23.9.92 to A/c No.12557 by preparing transfer voucher without debit confirmation. Thus, an amount of Rs.89,100/- was transferred unauthorisedly from the A/c No.12169.
To prove the aforesaid circumstances the evidence led on record may be seen.
The debit voucher dated 09.06.1992 for Rs.6,000/- for debiting account no. 12169 was signed by accused Ashok Pasrija as the passing officer and his signatures at Q14 have been opined to be of accused as per opinion of Handwriting Expert Ex.PW23/K. In the aforesaid context PW18 Shri L. M. Kapoor deposed that no instructions were given fro transfer of Rs,6,000/- fro said account to account no. 12123. Similarly, PW18 deposed that no instructions were given for transfer of amount of Rs.22,000/- and Rs.16,000/- to account no. 12123 of Yogarj Grover as per Ex.PW5/B3 and B4. Also any instructions for transfer of amount of Rs.12,000/- vide voucher Ex.PW5/B5 to account no. 2515 of M/s Sandeep Electricals was denied. Further, transfer of Rs.2,500/- to account no. 12597 vide voucher Ex.PW5/B6 was denied. The said transactions as per testimony of PW18 appear to have been made without any confirmation from the account holder. The signatures of accused as passing officer at Q15 on Ex.PW5/B3, Q16 on Ex.PW5/B4, Q17 on Ex.PW5/B6 were opined as per opinion (Ex.PW23/K) of Handwriting Expert to be in handwriting of accused.
RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija
(g). Shri Ashok Pasrija further credited Rs.30,000/- to A/c No.12169 by transfer from A/c No.12557 (fictitious A/c).
To prove the aforesaid circumstances the evidence led on record may be referred as under:
PW18 in aforesaid context also deposed that he had no knowledge as to how sum of Rs.30.,000/- was credited to account no. 12169 from account no. 12557. Ld. PP for CBI has pointed out that a credit voucher dated 01.01.1994 was proved as PW23/D and the signatures of the passing officer at Q20 were that of the accused as per the opinion of the Handwriting Expert Ex.PW23/K. In the absence of any supporting voucher, the credit entry vide aforesaid voucher was made without any instructions from account no. 12557 pertaining to Smt. Suman Arora which has been held to be fake in CC No. 85/11 {(RC 48(A)/95}. The evidence clearly points out that transaction was illegally carried by accused.
(h). Investigation revealed that an amount of Rs.29,000/- was withdrawn on 31.12.93, vide cheque No.820864 (cheque book issued to A/c No.12151 (a fictitious A/c operated by Shri Ashok Pasrija) by forging signature of Smt. Sushila Devi Kapoor and the cheque passed by Shri Ashok Pasrija.
To prove the aforesaid circumstances the evidence led on record may be looked into.
In the aforesaid context PW18 Shri L. M. Kapoor stated that cheque no. 820864 from account no 12169 was not issued by his mother and her signatures at Q19 on the reverse side are forged (Ex.PW18/I). He also stated that cheque book of this series was never issued to them by the bank and had no knowledge as to how this amount was withdrawn by somebody. The evidence reflects that the account was unauthorizedly operated though the author of the signatures at Q19 could not be confirmed by the Handwriting Expert as RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija per Ex.PW23/K. In the aforesaid context it is also pointed by prosecution that as per cheque book issue register Ex.PW21/C cheque book containing leaflets 820861 to 820870 is shown to have been issued to Sudarshan with reference to account no. 12151. The said account no. 12151 pertains to brother-in-law of accused and was operated as fictitious account as deposed by PW Sudarshan Kumar in CC No. 83/11 which case has been taken alongwith present case.
(vi). Account no. 12990 Ld. PP for CBI pointed out that account no. 12990 in the name of Sushila Devi Kapoor was operated by accused Ashok Pasrija. The ledger sheet of the said account no. Ex.PW7/A was proved by Shri Anurag Gupta. In the aforesaid context PW18 Shri L. M. Kapoor deposed that his mother had not opened any account in the bank except 12169. With reference to the same vide letter dated 15.03.1997 (Ex.PW21/A) Chief Manager had informed to Inspector Virender Thakran that specimen signature card and account opening form in respect of account no. 11914, 12136 and 12990 were not on record of the bank.
So far as this account number is concerned, prosecution failed to substantiate and point out the illegal transactions committed by accused. No adverse inference as such is taken against the accused qua this account.
13. Apart from the illegal entries fabricated by the accused, the prosecution has relied upon the extra judicial confessions by way of written statement made by accused Ashok Pasrija to Brig. K. C. Sukhija who has been examined in all the cases pending against the accused. The said handwritten statements given by the accused to Brig. K. C. RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija Sukhija of his own freewill are clear admissions by the accused pointing out to his guilt. The testimony of Brig. K. C. Sukhija could not be dented during cross-examination and his testimony may be briefly referred as under:
PW-20 Shri K. C. Sukhija stated that his son Neeraj Sukhija was having account no. 12590 in Oriental Bank of Commerce, Rajgarh Colony, Delhi wherein his neighbour Ashok Pasrija was posted as Manager. He further stated that accused was staying in neighbourhood and the passbook was handed over by his son to the accused. Thereafter, in 1994 he came to know that accused is involved in some fraud in the bank and approached him. He further stated that accused gave a written confession to him on 10.05.1995, 12.05.1997 and 17.05.1997 which are in handwriting of accused and endorsement was made by the witness on the top of the confession given on 10.05.1995 and 12.05.1997. (Note: there appears to be an error in dates as the statements are dated 10.05.1995, 12.05.1995 & 17.05.1995). The said confessions are Ex.PW20/A, Ex.PW20/B and Ex.PW20/C. The witness further deposed that accused told him that he was involved in a fraud of Rs.6.00 lakhs in various savings accounts in the branch including the account of son of witness.
Ld. PP for CBI has pointed out that accused Ashok Pasrija is also facing trial in another case bearing RC 49/95 which is pending before the Court of Shri Pradeep Chaddah, Special Judge, CBI and in the aforesaid case the irregularities committed in the account of Neeraj Sukhija son of K. C. Sukhija (have been dealt) and the charge-sheet was separately filed. The accused had given the said three confessional statements dated 12.05.1995, 10.05.1995 and 17.05.1995 as referred in statement of PW-20 Shri K. C. Sukhija with reference to said case and same has been relied in all the cases pending against the accused. All the said confessions in handwriting of accused have been placed in original in RC No. 49(A)/95 and the photocopies have been proved by PW20 in the present case as Ex.PW20/A, Ex.PW20/B & Ex.PW20/C. The writing of the said confessions which have been marked as Q1 on confession dated 12.05.1995 and Q2 on confession RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija dated 10.05.1995 were opined by expert to be in handwriting of accused Ashok Pasrija and the handwriting expert is stated to have been examined in relevant RC 49(A)/95. The said confessional statements have been duly proved by witness Shri K. C. Sukhija in whose presence the said confessional statements were given and cannot be discarded merely because the handwriting expert Shri V. K. Khanna who had compared the handwriting and given the opinion that the same were in the handwriting of accused has not been examined in this case. The copy of the opinion of the handwriting expert has been relied by the prosecution in the three cases pending before this Court and the original admissions alongwith the opinion have been placed in the fourth case pending against the accused i.e. RC 49(A)/95 which is pending in the Court of Shri Pradeep Chaddah, Special Judge, CBI, Delhi and have been proved in the said case. The said file was also summoned during the course of arguments. The testimony of PW20 K. C. Sukhija could not be dented during cross-examination and there is no iota of doubt that the said confessional statements were made by the accused voluntarily and without any coercion.
It may now be relevant to point out the contents of the confessional statement dated 12.05.1995 which bears the endorsement of Shri K. C. Sukhija on the top of the statement alongwith date whereby accused categorically admitted having committed irregularities as under:
"I hereby admit having committed irregularities to the tune of Rs.6.00 lacs in different SB A/cs from Feb 92 onwards (including 2 entries of SB 12590 of Neeraj). No one else is responsible or be held responsible for my this act.
I undertake to reimburse the Bank with amount of loss caused because of my acts latest by 31.12.94.
I know that I do not deserve any sympathy/soft corner still for the sake of my innocent family I request for a Mercy.
Hoping for a Mercy.
Yours faithfully"
RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija The confessional statement dated 12.05.1995 categorically points out that the accused therein unconditionally admitted his fault to K. C. Sukhija and was made even prior to registration of FIR.
So far as statement written by accused dated 10.05.1995 is concerned, the accused therein assured that K. C. Sukhija would not face any problem.
The third statement dated 17.05.1995 under signature of Ashok Pasrija may also be reproduced.
"To whomsoever it may concern This is confirmed that Sh Neeraj Sukhija R/o D-161 Bathla Appts, Patpar Ganj has no connection/relation with the questionable entries to the tune of Rs.23,000/- (Rs. Twenty three thousand only) that are appearing in his SB a/c no. 12590 with Oriental Bank of Commerce, Rajgarh Colony, Delhi & for which entries a legal notice has been issued or a Suit has been filed by the Bank making him a party. This charge against him is totally baseless which is being conveyed on the basis of available records with the bank.
Sd/-
(ASHOK PASRIJA) 17/5/95"
The said statement also clearly reflects that the accused admitted that the entries made in the account of Neeraj Sukhija (account no. 12590) had no connection with the questionable entries to the tune of Rs.23,000/-. Further, when read in conjunction with the earlier statements, the same reflect that the accused categorically admitted his dubious role in making the illegal entries to the tune of Rs. 6.00 lakhs in different SB accounts. Since the original statements written by the accused were duly produced and copies exhibited thereafter and the concerned witness Shri K. C. Sukhija before whom the said statements were made has been duly examined, I am of the opinion that the same cannot be overlooked merely because the concerned handwriting expert has not been examined in this case. RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija There does not appear to be any reason to presume that Ex.PW20/A to Ex.PW20/C were fabricated to implicate the accused as contended by the counsel. The testimony of Brig. K. C. Sukhija could not be dented during cross-examination and there is no reason to disbelieve the written admissions made by accused. The illegality committed by the accused as such stands proved even by his own admission by way of confessional statements given to Brig. K. C. Sukhija.
14. At this stage, the contention raised by counsel for accused that report of the handwriting expert given by Shri T. R. Nehra, Handwriting Expert cannot be read in evidence u/s 293 Cr.P.C. and otherwise has not been proved due to death of Shri T. R. Nehra may be dealt with. Reliance has also been placed upon Magan Bihari Lal vs. State of Punjab (1977) 2 SCC 210, Rajkumar vs. State of Haryana 1997 (1) Chandigarh Criminal Cases 478 (HC), Raj Mani vs. State 1997 (2) CC Cases 101 (HC), P. K. Vasudeva vs. Zenobia Bhanot AIR 1999 SC 3322 and Avtar Singh & Ors. vs. State of Punjab 1997 (2) CC Cases 24 (HC).
On the other hand, the contention is refuted on behalf of prosecution and it is submitted that the report given by the handwriting expert Shri T. R. Nehra was proved by PW17 Dr. M. A. Ali and can be duly read in evidence. It is also contended that the contents of the said report of the handwriting expert are relevant and can be considered u/s 32 (2) of the Evidence Act and since the report has been proved by PW17 to be in the writing of the expert who had since expired. Reliance is also placed upon 2009 Crl. L. J. 3268 Ramesh v. State of Madhya Pradesh, AIR 1964 Pat 62 Ram Balak Singh and Ors. vs The State and AIR 1980 Supreme Court 531 Murarilal v. State of M. P. & AIR 1989 Supreme Court 702 Prithi Chand vs. State of RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija Himachal Pradesh .
I have given considered thought to the contentions raised at bar. There is no doubt to the proposition that the maker of the report regarding the handwriting has to appear as a witness for the proof of the contents of the report and the report of handwriting expert is not covered under Clause C of Sub-section 4 of Section 293 of the Code of Criminal Procedure as held in 1997 (2) C.C. Cases 101 relied by the counsel for accused. The said proposition was decided by the Hon'ble High Court in the background that the accused did not have the opportunity to challenge the report of the handwriting expert as it was produced at the stage of recording of statement of accused u/s 313 of the Code of Criminal Procedure.
In the present case, the fact remains that the said report of the handwriting expert has been duly proved by PW17 Dr. M. A. Ali since the expert who had given the report, namely, Shri T. R. Nehra had expired. The contents of the report are relevant as per Sub-section 2 of Section 32 of the Indian Evidence Act as held in 2009 Crl. L.J. 3268. The report has also been proved by PW17 Dr. M. A. Ali as per requirement of Section 67 of the Evidence Act. Reference may also be made to AIR 1989 Supreme Court 702 wherein the medical certificate made by the doctor whose presence could not be procured and was proved by another doctor was held to be admissible on the analogy that Section 32 of the Evidence Act provided that when a statement written or verbal is made by a person in the discharge of a professional duty whose attendance cannot be procured without an amount of delay the same is admissible in evidence. Apart from above, Section 73 of the Evidence Act enables a Court to compare disputed writings with RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija admitted or proved writings to ascertain whether a writing is of the person by whom it purports to have been written and for the purpose the expert opinion aid's the Court. Further, the Court before acting on such evidence/opinion of the handwriting expert normally also sees if it is corroborated either by direct evidence or by circumstantial evidence. The witnesses who were working with the accused in the bank in the course of duties have also deposed as to the making of various entries by the accused who were well acquainted with his handwriting and nothing has been elicited in the cross-examination to throw doubt if the relevant entries had not been made by the accused. In view of above, the report of handwriting expert is relevant and can be considered. At the same time it may be observed that even apart from the report of handwriting expert, sufficient evidence has been led to prove the illegal transactions carried by the accused.
(ii) It has been also contended by counsel for accused that expert evidence is a weak type of evidence and the Courts do not consider it as conclusive and, therefore, it is not safe to rely upon it without seeking independent and reliable corroboration. There is no dispute to the aforesaid extent as to the proposition of law. However, counsel for accused has further contended that since permission was not obtained by the IO prior to obtaining the specimen handwriting of the accused, the opinion of the handwriting expert has to be excluded.
I am of the considered view that the law on the aforesaid point has been authoritatively clarified in Bhupinder Singh vs. State in the judgement passed by the three Judges Bench of the Hon'ble High Court of Delhi in Crl. Appeal No. 1005/2008 decided on 30.11.2011. In the aforesaid case, expressing doubt to the correctness of decisions in Harpal Singh v. State (Criminal Appeal No. 362/2008 decided on 25th RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija May, 2010) and Satyawan v. State (Criminal Appeal No. 34/2011 decided on 9th July, 2009) wherein the two division benches had ignored the part of the report of the handwriting expert on the ground that the investigating officer had taken the specimen handwriting in violation of the provisions of the the Identification of Prisoners Act, 1920, the following question was referred for adjudication by a larger Bench "Whether the sample finger prints given by the accused during investigation under Section 4 of the Identification of Prisoners Act, 1920 without prior permission of the Magistrate under Section 5 of the Act will be admissible or not?"
The Hon'ble Full Bench was of the considered view that the view expressed in Harpal Singh (Supra) and Satyawan (supra) is not a correct view and was overruled. It was further observed that the view expressed in the case of Sunil Kumar @ Sonu vs. State of NCT of Delhi Crl. Appeal No. 446/2005 decided on 25.03.2010 lays down the law in correct perspective. The observations in Sunil Kumar @ Sonu may be beneficially reproduced as under :
"26. It is true that the specimen finger print impressions of the appellants were taken by the IO directly and not through the Magistrate as provided in Section 5 of Identification of Prisoners Act. But, that, to my mind was not necessary because Section 4 of Identification of Prisoners Act specifically provides that any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurement to be taken in the prescribed manner. In view of the independent powers conferred upon a police officer under Section 4 of the Act, it was not obligatory for him to approach the Magistrate under Section 5 of the Act. He would have approached the Magistrate, had the appellants refused to give Specimen Finger Print Impressions to him. Therefore, no illegality attaches to the specimen finger print impressions taken by the Investigating Officer. The court needs to appreciate that the very nature and characteristic of material such as finger prints renders it intrinsically and inherently impossible for anyone to fabricate them. If there is an attempt to fabricate finger prints, that can certainly be exposed by the accused by offering to allow his finger prints to be taken so that the same could be compared through the process of the court. Crl. A. No. 1005/2008 Page 6 of 15 None of the appellants has come forward to the court with a request to take his finger print impressions in the court and get them compared with the chance finger prints lifted by PW-1 from Car No. DL 2CA 4116 on 21st December, 2000."
In view of the authoritative pronouncement in Bhupinder Singh RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija vs. State (Supra) and other authorities referred therein, I am of the considered view that opinion of the handwriting expert cannot be excluded merely on the ground that the specimen handwriting of the accused were obtained during investigation for comparison without seeking the permission of the Magistrate.
In the aforesaid context, reliance may also be placed upon AIR 2011 SC 1436 wherein reference was made to the judgement passed by the Hon'ble Apex Court in State of Bombay v. Kathi Kalu Oghad and Ors., AIR 1961 SC 1808 and the relevant observations in Para 35 may be quoted:-
"11. ........When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of a 'personal testimony' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness."
15. The accused (in his defence) has also relied upon the judgements passed in the civil cases filed by Oriental Bank of Commerce against the accused alongwith other persons for recovery of the amount which were dismissed, to contend that the irregularities could not be proved against the accused.
Before I dwell upon the aforesaid judgements passed in civil cases, the scope of findings in the civil suits vis-a-vis the criminal RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija proceedings may be seen as observed by the Hon'ble Apex Court in AIR 2010 Supreme Court 2010 {Kishan Singh (D) through L. Rs. v. Gurpal Singh & Ors.} in para 19.
"19. Thus, in view of the above, the law on the issue stands crystallized to the effect that the findings of fact recorded by the Civil Court do no have any bearing so far as the criminal case is concerned and vice-versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Indian Evidence Act, 1872, dealing with the relevance of previous Judgments in subsequent cases may be taken into consideration."
(a) The judgement relied by accused may now be adverted to and scrutinized. RCA No. 44/04 pertains to judgement dated 09.04.2008 passed in appeal by Shri A. S. Jayachandra, ADJ, Karkardooma Courts, Delhi whereby the appeal preferred by Oriental Bank of Commerce was dismissed and the findings of the ld. Civil Judge in judgement and decree in suit no. M15/04/96 dated 30.10.2004 were affirmed. The accused has not filed the copy of judgement passed in suit no. M15/04/96 dated 30.10.2004 by the Civil Judge. The perusal of judgement in appeal reveals that the suit was filed by Oriental Bank of Commerce against Ashok Pasrija and P. K. Rawat (since deceased) in respect of fraud committed in account no. 3988/15 (in the name of P. K. Rawat) by way of credit entries for sum of Rs.1,08,900/-. The findings of the trial court were upheld in appeal and the suit filed by Oriental Bank of Commerce appears to have been dismissed since the bank failed to examine the relied upon witnesses, namely, Shri P. L. Bhatnagar after partly examining the witness and since the bank also RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija failed to prove the admission letter allegedly signed by accused Ashok Pasrija in original. The entries on the basis of ledger were also held to be not proved for want of certification under Banker's Book Evidence Act and for other reasons as recorded in the judgement. It was also observed in para 17(j) of the judgement passed in appeal that the allegation basically was against one of the account holder P. K. Rawat who died having appropriated the amount. It was also reasoned that the allegation against Ashok pasrija is that he facilitated such wrongful entries to help P. K. Rawat but to prove this allegation, none of the bank employees who worked during the tenure of defendant no. 2 was examined. It was also observed thereafter that after careful perusal of record, it becomes difficult to find out the role of defendant.
A bare perusal of the judgement reveals that the same was passed for the reasons that the relevant witnesses were either not examined or the documents were not proved in accordance with provisions of Evidence Act. The case was filed by OBC against both the account holder s well as accused herein for recovery. However, so far as the present proceedings are concerned, the same have to be assessed in the background that the CBI itself had placed Shri P. K. Rawat in column no. 2 of the charge-sheet and did not find any evidence to substantiate the finding that he was in conspiracy with accused Ashok Pasrija. The evidence in the present case as such needs to be assessed independently of the findings of the civil court and assess if the documents filed on record have been proved in accordance with law and if the evidence points to the guilt of the accused. It may be difficult to hold in the facts and circumstances that the prosecution of the accused cannot be sustained merely on the basis of the findings of the civil court with reference to judgement relied by the accused. The relevant evidence has been duly led in present RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija proceedings to prove the facts beyond reasonable dount.
(b) The second judgement relied by the accused pertains to civil suit no. 611/07 (Ex.DW1/A), OBC vs. Sudarshan Kumar Raheja & Ashok Pasrija. The said suit was filed for recovery of Rs.43,808/- against the aforesaid defendants and the same was dismissed vide judgement dated 03.06.2009 by Shri Pulastya Pramachala, CCJ/ARC, East/MM, Karkardooma Courts, Delhi. As per the case of the plaintiff in the aforesaid suit, fake entries were made in account no. 12151/47 in the name of Sudarshan Kumar Raheja for Rs.28,000/- which amount was withdrawn on 29.05.1992 for Rs.12,000/- and on 13.06.1992 for Rs. 16,000/-. The said suit was dismissed since the plaintiff bank failed to prove the factum of making false entries of credit in account of Sudarshan Kumar Raheja (defendant in the suit). It was observed by the ld. trial Court that the plaintiff had nowhere explained that which particular entry was fake which pertained to credit of amount in the account of defendant no. 1 and the plaint speaks only about composite amount of Rs.28,000/-.
However, so far as the present proceedings are concerned, the prosecution has duly proved the relevant ledgers, vouchers etc. to prove the fake entries involved in the proceedings and as such, the findings of the civil Court cannot absolve the accused in the light of the categorical evidence on record.
(c) The third judgement relied upon by the accused Ex.DW1/D pertains to suit filed by OBC against Smt. Rashmi Gulati and Ashok Pasrija for recovery of Rs.49,623/-. The suit filed by the plaintiff bank was dismissed vide judgement dated 21.4.2009 by Shri Pulastya Pramachala, CCJ/ARC/MM (East), Kakardooma Courts, Delhi. The RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija said case pertains to making of fake entries in account no. 11112/43 for sum of Rs.40,532/- and out of the same, cash amount of Rs.11,040/- for pay order of Rs.11,015/- was made out in name of defendant no. 1 and amount of pay order was withdrawn by defendant no. 2. Further, a CDR dated 09.01.1994 for sum of Rs.30,000/- favouring defendant no. 1 was also issued.
So far as the aforesaid judgement is concerned, the said account number does not appear to be involved in the present case.
(d) The fourth judgement relied upon by the accused Ex.DW1/C pertains to suit filed by OBC against Neeraj Sukhija and Ashok Pasrija for recovery of Rs.28,024/-. The suit filed by the plaintiff bank was dismissed vide judgement dated 01.06.2009 by Shri Pulastya Pramachala, CCJ/ARC/MM (East), Kakardooma Courts, Delhi. As per the case of the plaintiff bank, the fake entries were made in account no. 12590 belonging to Neeraj Sukhija for a sum of Rs.23,000/- and out of this amount, at the request of Neeraj Sukhija a demand draft was made favouring Col. K. C. Sukhija for Rs.10,000/- and the remaining amount was withdrawn by defendant no. 1 or transferred to other accounts. The ld. Trial Court dismissed the suit on the ground that the plaintiff had failed to explain as to which particular entries were fake which pertained to credit of amount in the account of defendant no. 1 and only a composite amount of Rs.23,000/- was mentioned. It was also observed that nothing relating to the accounts was produced before the Court and the plaintiff failed to prove the factum of making false entries of credit in account of defendant no. 1.
So far as the aforesaid judgement is concerned, same may be relevant for consideration in RC 49(A)/95 which is pending before the Court of Shri Pradeep Chaddah, Special Judge, Delhi. So far as illegal RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija entries other than relating to account no. 12590 are concerned, the same have been proved beyond reasonable doubt. The accused cannot be given any benefit merely on the basis of said judgements passed in aforesaid civil cases and specifically in view of written admissions made by accused before Shri K. C. Sukhija which have been duly proved on record.
In view of aforesaid discussion, the accused cannot be granted benefit of doubt merely because of dismissal of civil proceedings for recovery of amount initiated by OBC. The charge against the accused stands proved beyond reasonable doubt on the basis of evidence led on record in the present proceedings.
16. Contention has also been raised on behalf of accused that in respect of some of the entries, the prosecution has filed extract of long book instead of producing the original and as such the case has not been proved beyond reasonable doubt.
The contention raised by the counsel for accused does not carry any merit since overwhelming evidence has been led by prosecution to establish the illegal transactions carried by the accused. In case the accused was prejudiced by non production of any such document in original, the same could have been summoned by him. Further, there does not appear to be any requirement that each and every entry made in the relevant ledgers/books maintained in the bank was required to be proved by the concerned person who had made the entries. The relevant copies of the documents duly certified under the Bankers Book Evidence Act, 1891 have been produced and proved on record.
17. Counsel for accused also challenged the proceedings on the ground that no sanction had been obtained by the prosecution u/s 19 of RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija PC Act, 1988. The said contention on the face of record appears to be meritless as it was pointed out by the prosecution that the accused had been dismissed from service prior to filing of chargesheet on 23.07.1998. For the aforesaid purpose during the course of arguments, file pertaining to RC 46(A)/95 was also called since some of the documents in original referred during the course of arguments were stated to have been tagged with the said file. In the aforesaid case, an original communication dated 19.06.1998 addressed by Shri S. K. Singh, Chief Vigilance Officer to Shri Anil Kumar, Superintendent of Police has been brought to my notice whereby it was communicated that Ashok Pasrija had been removed from the service of the bank vide letter dated 29.03.1997.
18. The accused has been charged for offences u/s 420/409/467/468/477-A IPC (falsification of accounts). Section 463 deals with forgery and Section 464 further defines "making of false documents". Section 467 provides punishment for forgery of valuable security, will etc. Section 468 deals with forgery for purpose of cheating. The opinion of Handwriting Expert proves the fact that accused forged various debit vouchers, credit vouchers for wrongly debiting and crediting the amount as discussed in preceding paras. The forgery has been clearly done for purpose of cheating and the accused further prepared and used the various debit slips and credit slips for wrongly crediting the amount and for illegal gain. The accused is hereby convicted under Sec 420/467/468 IPC.
Sec. 477-A IPC deals with falsification of accounts and may be reproduced.
"477A, Falsification of accounts.- Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija willfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing], valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or willfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular of any material particular form or in, any such book, electronic record, paper, writing], valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Explanation-It shall be sufficient in any charge under this section to allege a general intent to defraud without naming any particular person intended to be defraud without naming any particular person intended to be defrauded or specifying any particular sum of money intended to be the subject of the fraud, or any particular day on which the offence was committed."
The evidence clearly points out that the debit and credit slips were dishonestly prepared for wrongful gain to the accused and causing loss to the bank and the account holders. The accused also intentionally made fraudulent entries for purpose of illegal gain and thereby committed offence punishable u/s 477-A IPC. The accused is accordingly also convicted u/s 477-A IPC.
Section 409 IPC deals with criminal breach of trust by public servant or by banker, merchant or agent and provides that whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment prescribed therein. It has been proved beyond reasonable doubt that the RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija accused by abusing his position as a public servant/banker committed criminal breach of trust and also duped the account holders and as such is liable to be convicted u/s 409 IPC.
19. OFFENCE COMMITTED BY ACCUSED ON THE PROVED FACTS UNDER PREVENTION OF CORRUPTION ACT, 1988.
Relevant portion of Section 13 of Prevention of Corruption Act, 1988 which provides for criminal misconduct by a public servant reads as under:
"13.Criminal misconduct by a public servant.
(1) A public servant is said to commit the offence of criminal misconduct,-
[...]
(c) If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) If he, -[...]
(ii) By abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or [...](2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
The accused in the present case being deputed in the bank had access to all the documents maintained in the Banking business and was also responsible as an manager for conduct of day to day business in the bank. The accused wrongly made the entries or ensured that the transactions are wrongly entered on the basis of RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija vouchers for debiting and crediting of the amount in various accounts and as such on the face of record misused his position for fraudulent gain and committed criminal breach of trust. It is therefore beyond purview of doubt that accused being a public servant is guilty of offence u/s 13(1)(d) r/w Sec 13(1)(2) Prevention of Corruption Act, 1988.
20. For the foregoing reasons the prosecution has proved its case beyond reasonable doubt. Accused is accordingly convicted for commission of offences under Sections 409/420/467/468,477 A IPC & 13 (1) (d) r/w 13(2) of the Prevention of Corruption Act, 1988.
Announced in the (Anoop Kumar Mendiratta)
open Court on Special Judge (PC Act)
18th July, 2012 CBI-08, Central District,
Tis Hazari Courts, Delhi.
RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
SPECIAL JUDGE (PC ACT), CBI-08, CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
CC No. : 84/2011
PS : CBI/ACB/ND
Unique ID No. 02401R000381998
RC No. : 47(A)/95-DLI
CBI
Versus
Shri Ashok Pasrija,
Manager, Oriental Bank of Commerce,
Rajgarh Colony Branch,
Delhi.
At present r/o D-140, Bathla Apartment,
Patparganj, Delhi.
Date of FIR : 16.06.1995
Date of Institution : 23.07.1998
Date of Judgement : 18.07.2012
Order on Sentence : 20.07.2012
CASE MORE THAN 10 YEARS OLD.
1. Accused Ashok Pasrija has been convicted vide separate judgements dated 18.07.2012 in all the three connected cases which were taken up together for disposal (i.e. RC No. 46(A)/95 (CC No. 83/11), RC No. 47(A)/95 (CC No. 84/11) and RC No. 48(A)/95 (CC No. 85/11). The accused has been convicted in each case for commission RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija of offences U/s 409/420/467/468/477 (A) IPC & Section 13 (1)(d) r/w Section 13 (2) of the Prevention of Corruption Act,1988.
2. I have heard Shri A. K. Dutt, ld. PP for CBI and counsel for accused on point of sentence.
Counsel for accused submits that accused is aged about 60 years and has already been dismissed from service. It is further submitted that family of the accused has also suffered immensely on account of his dismissal and has been financially ruined. It is also contended that accused is suffering from medical ailments and has been facing proceedings for the last 17 years since registration of FIR in 1995 and as such a lenient view be taken.
On the other hand Ld. PP for CBI contends that deterrent sentence be passed.
3. Accused was an employee of Oriental Bank of Commerce and indulged in preparation of false documents, forging of entries and fabrication of accounts for wrongful gain. Apart from the bank, the account holders in the respective cases were also put at loss and duped in good faith. The fraud committed by accused could not be detected for a considerable period despite audits since the the accused being a Manager in the bank had access to all the documents and was able to maneuver. The acts of the accused pose a fundamental threat to the viability of the organization itself and also resulted in loss to several account holders who trusted the accused and thereby calls for a deterrent sentence.
RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija
4. The case also calls for appropriate checks to be taken by the bank as the illegal transactions carried by the accused could not be detected in the normal course despite regular balancing of books claimed to have been carried in the bank. Some of the credit entries were made by the accused even without supporting vouchers which could not have been possible, if the other employees in the bank had been diligent enough to cross check the vouchers with corresponding entries. There appears to be lack of supervision by the senior officials. The judgements filed by the accused in his defence reflect that the Oriental Bank of Commerce resorted to filing of the civil suits for recovery of the amounts against some of the account holders on the presumption that they were in collusion with the accused while the prosecution at the stage of investigation itself gave a clean chit to the account holders in the present cases as the fraud was committed by the accused and the account holders themselves were put at loss. In the facts and circumstances, the bank is required to at least ensure that the account holders are not put to inconvenience and further face litigation for deficiencies in their own system or the fraud committed by its employees. The Oriental Bank of Commerce needs to ensure proper conciliation and accountability of banking transactions on day to day basis to prevent similar frauds. A copy of judgment alongwith order on sentence be also forwarded to the Chairman/CEO, Oriental Bank of Commerce for information and necessary action.
5. I am of the considered view that interest of justice would be fully met if convict shall undergo rigorous imprisonment for 3 years in RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija respect of offence under Section 420 IPC and shall also pay fine of Rs. 2,000/-; in default of payment of fine accused shall undergo SI for 2 months. In respect of offence under Section 409 IPC, convict shall undergo R.I. for 3 years and shall pay a fine of Rs.2,000/-; in default of payment of fine to undergo S.I. for 2 months. In respect of offence under Section 467 IPC, convict shall undergo R.I. for 3 years and shall pay a fine of Rs.2,000/-; in default of payment of fine to undergo S.I. for 2 months. In respect of offence under Section 468 IPC, convict shall undergo R.I. for 3 years and shall pay a fine of Rs.2,000/-; in default of payment of fine to undergo S.I. for 2 months. In respect of offence under Section 477 A IPC, convict shall undergo R.I. for 3 years and shall pay a fine of Rs.2,000/-; in default of payment of fine to undergo S.I. for 2 months. Lastly, in respect of offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 convict shall undergo R.I. for 3 years and shall pay a fine of Rs.2,000/-; in default of payment of fine to undergo S.I. for 2 months. The aforesaid sentence under different sections in this case as well as the sentence imposed in the other two cases decided alongwith this case shall run concurrently (i.e. CC No. 83/11, 84/11 & 85/11). Convict shall also be entitled to benefit of Section 428 Cr.P.C. Copy of judgement alongwith order on sentence be provided to convict free of cost.
Announced in the open court (Anoop Kumar Mendiratta) on 20th July, 2012 Special Judge (CBI-08), PC Act Central Distt., Delhi. RC 47(A)/95, CC 84/11 - CBI vs. Ashok Pasrija