Delhi District Court
Cbi vs . Mahender Kumar Aggarwal & Ors. on 23 September, 2016
IN THE COURT OF : MS. ANU GROVER BALIGA :
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
In the matter of :
CBI Vs. Mahender Kumar Aggarwal & Ors.
CBI No. 20/11
FIR No. RC1(E)/2002EOWI/DLI
dated 07.01.2002
Branch CBI/EOWI/New Delhi
U/s : 120B r/w 467, 468, 471 IPC & 13 (2)
r/w 13 (1) (d) of the PC Act, 1988
CENTRAL BUREAU OF
INVESTIGATIONS (C.B.I)
V e r s u s
1.Mahender Kumar Aggarwal S/o Sh. Babu Lal Aggarwal, Director, M/s Rasivasia India (Pvt.) Ltd.
R/o 79/41, Punjabi Bagh (West), New Delhi .
2. M/s Rasivasia India (Pvt.) Ltd.
79/41, Punjabi Bagh, New Delhi (Through its Director)
3. Ramesh Goyal Partner, M/s Hind Steel Sales CBI No. 20/11 1/124 S/o Sh. Navranj Roy R/o A4/4, Paschim Vihar, New Delhi.
4. Ramesh Chand Aggarwal ChairmancumDirector of M/s Upkar Estates (P) Ltd.
S/o Sh. R.R. Aggarwal R/o B35, NDSEI, New Delhi.
5. Alok Aggarwal Director M/s Rohini Strips Ltd.
S/o Sh. B.L.Aggarwal R/o 79/41, Punjabi Bagh (W), New Delhi.
6. Suresh Malik Approved Valuer S/o Sh. N.C.Malik, R/o C2A16/251 A, Janakpuri, New Delhi.
7. G.K.Dhawan, Chief Manager, Oriental Bank of Commerce, S/o Sh. K.L.Dhawan R/o H3/139, Vikaspuri, New Delhi.
8. Vipin Jain, Sr. Manager, Oriental Bank of Commerce, S/o Late Sh. H.L. Jain R/o H. No. B3, Suvidha Apartment, CBI No. 20/11 2/124 Plot No. 25, Sector13, Rohini, Delhi.
Date of Institution (Initial Filing) : 30.06.2003 Date on which the case was : 01.10.2011 received on transfer in this court Date of reserving judgment : 09.09.2016 Date of pronouncement : 23.09.2016 J U D G M E N T
1. The allegations for which the aforementioned accused persons have faced trial in the present case, in a nutshell, are that all of them entered into a criminal conspiracy to cheat Oriental Bank of Commerce, Industrial Finance Branch, New Delhi (herein after referred to as OBC, IFB) and in pursuance thereof fraudulently induced it to disburse/sanction credit facilities to the extent of Rs. 1.25 crores in favour of accused no. 2 Company namely M/s Raswasia India (P) Ltd. on the basis of false and fabricated documents.
2. Briefly stated the allegations in the chargesheet which form the genesis of the present trial are as follows :
(a) In May 1998 accused no. 1 M.K. Aggarwal and his wife, both being the Directors of accused no. 2 Company namely M/s Raswasia India (P) Ltd. (hereinafter referred to as A2 Company) approached the OBC, IFB, New Delhi with a loan application for sanction of credit facilities to the extent of Rs. 250 lacs. It was mentioned in the CBI No. 20/11 3/124 application that the said company was carrying on the activity of trading in shares and intended to diversify its activities to trading in iron and steel items and that as a collateral security for sanction of credit facilities they were willing to offer a farm house measuring 6 bighas at Khasra No. 938 Min. (05), 925 Min (15) (2 Bighas), Khasra no. 924 Min. (2 Bighas) and Khasra no. 1715 (2 Bighas) (hereinafter referred to as the farm house) standing in the name of M/s Upkar Estates Pvt. Ltd., a company of which M.K. Aggarwal was a Director.
(b) The aforementioned loan application was processed at the branch level by accused no. 8 Vipin Jain, the then Manager (Loan) and the loan proposal was recommended in toto jointly by him and accused no.
7 G.K. Dhawan, the then Chief Manager of Industrial Finance Branch. The said bank officials in pursuance of the conspiracy entered by them with accused no. 1 M.K. Aggarwal recommended the credit facilities without following the guidelines issued in this respect. Though the credit policy guidelines stipulated that finance to Steel sector should be discouraged and further that no loan should be advanced to an applicant who does not have a properly introduced/satisfactorily conducted account or otherwise known to the bank, accused 7 and 8 recommended the loan application made by accused M.K. Aggarwal on behalf of accused Company despite the fact that neither the accused no. 1 M.K. Aggarwal had an account in the bank nor was he known to the bank in any manner. Both these accused persons further did not CBI No. 20/11 4/124 properly calculate the networking capital of A2 Company and without verifying the credentials, track record and reputation in the market of accused M.K. Aggarwal and A2 Company, the aforementioned officials of the OBC, IFB accepted the unrealistic projected turnover of Rs. 1340.12 lacs for the year 199899 shown by A2 Company in its application for loan and forwarded/recommended the same for sanction to the Regional Office.
(c) The Regional Office on processing the loan proposal found it deficit in many respects and directed the Branch office to answer certain specific queries but the aforementioned officials namely A7 and A8 instead of inquiring into the queries themselves forwarded the queries raised by the Regional Office to M.K. Aggarwal and in turn forwarded his answers to the queries to the Regional Office again with a recommendation for sanction of the credit facilities and that too without verifying the correctness of the answers given by accused M.K. Aggarwal.
(d) While sanctioning the credit facilities, Regional Office interalia stipulated certain conditions which were to be complied with by A2 Company and its Director M.K. Aggarwal, accused no. 1 before the disbursal of the credit facilities. Accused no. 7 and 8 however without ensuring the compliance of two main conditions laid down by the Regional Office namely that the audited balance sheet of A2 Company as on 31.3.1998 was to be obtained and a charge on the farm CBI No. 20/11 5/124 house was to be created in ROC, disbursed the facilities in favour of A2 Company.
(e) Further the connivance of A7 and A8 with M.K. Aggarwal also becomes apparent from the fact that when on 31.7.1998, he submitted a false stock statement of A2 Company under his signatures showing hypothecated stocks worth Rs. 28 lacs, both of them on the basis of this stock statement alone allowed A2 Company a drawing power to the extent of about Rs. 21 lacs without physically verifying the stocks. The said acts of A7 and A8 facilitated M.K. Aggarwal to avail an LC for Rs. 50 lacs on 31.7.1998 itself on the basis of a bogus and unverified stock statement. It is also alleged that though accused 7 G.K. Dhawan was under transfer on 31.7.1998, he hurriedly issued the aforementioned LC in favour of M/s Hind Steels Sales, Naraina (of whom accused no. 3 Ramesh Goel was a partner) on behalf of A2 Company without even verifying that the transporters named in the invoices raised by M/s Hind Steels Sales were not even approved transporters as required under the guidelines of Advance Manual Vol I. The said manual also laid down that the LC should be sent to the advising bank i.e the bank of the firm in whose favour the LC is issued but A7 in total contravention of the said manual, handed over the LC to accused M.K. Aggarwal which enabled him to get the LC negotiated in Bombay Mercantile Cooperative Bank Ltd., Daryaganj, Delhi, that too in parts. Further the bills/lorry receipts submitted by CBI No. 20/11 6/124 accused M.K. Aggarwal and accused Ramesh Goel in the said bank for negotiating this LC were bogus, yet OBC, IFB confirmed the negotiation of the said LC and made a payment of Rs. 48,73,153/ through bankers cheques.
(f) Based on yet again bogus bills, accused M.K. Aggarwal managed to get another LC issued by OBC, IFB, on 28.8.1998 in favour of M/s Rohini Strips Ltd which was a company of his brother, accused Alok Aggarwal and the OBC, IFB Bank honoured the said LC of Rs. 48,69,442/.
(g) Investigation further disclosed that though both the LCs of Rs. 1 crores had been negotiated by 25.8.1998, the stock statement dated 31.1.1998 furnished by accused M.K. Aggarwal with the bank reflected the receipt of material under one LC only and the amount of the second LC which was already availed was not deliberately shown in the said stock statement for had the amount of the second availed LC shown in the stock statement, no further drawing power would have been available in the CC Account of A2 Company and accused 8 Vipin Jain without checking the stocks made available a drawing power to the extent of Rs. 50 lacs to M.K. Aggarwal and A2 Company. This enabled accused M.K. Aggarwal to submit a cheque for Rs. 29.05 lacs in the bank for issue of a pay order for Rs. 29 lacs favouring SAIL and accused 8 Vipin Jain used his exceptional power to allow the said withdrawl which also shows his connivance with CBI No. 20/11 7/124 accused M.K. Aggarwal.
(h) Investigation further disclosed that the draft for Rs. 29 lacs issued by OBC, IFB favouring SAIL was deposited in SAIL by accused M.K. Aggarwal and his brother accused Alok Aggarwal (A5) to clear the over dues of M/s Rohini Strips Ltd and infact no material was purchased by A2 Company from SAIL.
(i) During investigation it was also revealed that accused no. 4 Ramesh Chand Aggarwal, the Managing Director of M/s Upkar Estates (P) Ltd had also conspired with accused M.K. Aggarwal to cheat OBC, IFC in as much as though no resolution was passed by M/s Upkar Estates (P) Ltd authorizing accused M.K. Aggarwal to mortgage the farm house belonging to M/s Upkar Estates (P) Ltd as collateral security he made available the property documents of the farm house to accused M.K. Aggarwal and when the CC Account of A2 Company became NPA, he attempted to sell the farm house to another person. Accused no. 6 Suresh Malik, the Approved Valuer of OBC also was a part of the conspiracy in as much as he over valued the farm house consisting of 6 Bighas in Village Rajokri and reported that its market value to be Rs. 2,78,20,800/ though investigation disclosed that as per revenue records during 1998 the value of 1 Bigha in the area of Village Rajokri was approximately only Rs. 3 lacs and therefore its is alleged that Suresh Malik valued the farm house at a very high price only to facilitate accused M.K. Aggarwal and A2 CBI No. 20/11 8/124 Company to obtain huge credit facilities from the bank.
(j) The entire aforementioned facts came to light during the investigation of FIRRC1(E)/2002EOWI/DLI which was registered on 7.1.2002 pursuant to a written complaint made by Sh. A.K. Mishra, Chief Vigilance Officer, OBC to CBI.
3. Based on the aforementioned allegations in the charge sheet and the documents filed alongwith it, one of the Ld Predecessors of this court framed charges against the accused persons for having conspired to cheat the OBC and for having fraudulently induced it to disburse/sanction credit facilities to the extent of Rs. 1.25 crores in favour of A2 Company on the basis of false and fabricated documents and thus for having committed offences punishable under section 120B IPC read with section 420/467/468 and 471 IPC and also for having individually committed offences of cheating, forgery and using forged documents punishable under section 420/467/468 and 471 IPC Further accused 7 and 8 were also charged for having misused / abused their public offices to fraudulently get sanctioned and disbursed the credit facilities to the extent of Rs. 1.25 crores in favour of A2 Company and thereby for having committed criminal misconduct as defined under section 13 (1) (d) and punishable under section 13 (2) of the PC Act.
4. To prove its case the prosecution has examined 43 witnesses while the accused persons in their defence have also CBI No. 20/11 9/124 examined 11 witnesses. For the sake of brevity and clarity, this court will now consider separately the evidence produced by the prosecution against each of the accused persons, the statements tendered u/s 313 Cr.P.C by the said accused persons, the defence led by them and the submissions of the Ld Prosecutor and the Ld Defence counsels with respect to the aforementioned evidence and statements.
5. Coming first to the case of accused M.K. Aggarwal and Alok Aggarwal, the Directors of A2 Company and M/s Rohini Strips Ltd. respectively, the prosecution is relying upon the testimony of PW1 to PW7, PW11, PW13, PW15,PW17, PW 20, PW23, PW24, PW35 to PW37, PW39 and the documents produced by them to prove its allegations against them. It is the contention of Ld. PP Ms. Shashi that it was these accused persons, who were the main conspirators and the beneficiaries and had hatched the conspiracy to fraudulently obtain credit facilities in the name of A2 Company from OBC on the pretext that this company wanted to start a new business in the trading of steel, though their intention was to siphon these facilities to clear the debts and dues of M/s Rohini Strips Ltd. She has submitted that in pursuance of this conspiracy, accused M.K.Aggarwal being the Director of A2 Company not only furnished false information in the application filed on behalf of this company seeking the credit facilities but also got prepared forged and fabricated documents to avail the credit facilities. She has pointed out that in his CBI No. 20/11 10/124 letter Ex.PW20/D1, addressed to the Chief Manager, OBC this accused offered as collateral security for the grant of credit facilities, the farm house standing in the name of M/s Upkar Estates (P) Ltd wherein he falsely alleged that by virtue of the General Power of Attorney registered in his name by M/s Upkar Estates (P) Ltd, he was fully empowered to mortgage the said property in favour of OBC. A similar false assertion has also been made by this accused in another communication addressed by him to the Chief Manager, OBC, Ex.PW39/D wherein he has falsely asserted that the general power of attorney in his favour has been executed by way of a company resolution of M/s Upkar Estates (P) Ltd despite being aware that there was no such company resolution whatsoever. It has also been pointed out by Ld. PP that to ostensibly show the compliance of the condition of sanction of credit facilities namely that A2 Company had obtained unsecured loans to the extent of Rs. 28 lacs, this accused submitted to OBC a false and fabricated statement of stock available with A2 Company as on 30.7.1998, Ex.PW20/J1 though no such stock ever existed with A2 Company and submitted a false undertaking to OBC, that the said stocks stand hypothecated to OBC against grant of loan facility. It has also been pointed out by Ld PP that this accused on 30.7.1998 made an application Ex.PW21/M to IFB, OBC requesting therein for opening of Letter of Credit (hereinafter referred to as LC) of Rs. 50 lacs in favour of M/s Hind Steel Sales, Naraina, New Delhi CBI No. 20/11 11/124 and during the negotiation of the said LC, this accused deposited with the negotiating bank false and fabricated lorry receipts / delivery challans (Ex.PW1/1 to Ex.PW1/16, Ex.PW35/H1 to Ex.PW35/H24) showing the purchase and delivery of various steel items by A2 Company from M/s Hind Steel Sales. Similarly on 22.8.1998 this accused again made an application Ex.PW21/L to IFB, OBC requesting therein for opening of Letter of Credit (hereinafter referred to as LC) of Rs. 50 lacs in favour of M/s Rohini Strips and during the negotiation of the said LC, this accused deposited with the negotiating bank false and fabricated invoices (Ex.PW6/1 to Ex.PW6/4, Ex.PW35/B Ex.PW35/B1 and Ex.PW35/B2). It is the contention of Ld. PP Ms. Shashi that the deposition of PW36 Anil Kumar Chauhan, an employee of accused M.K. Aggarwal clearly proves that this accused had made this witness forge and fabricate all the aforementioned delivery challans to falsely to reflect that various steel items had been purchased by him from M/s Hind Steels India Ltd and M/s Rohini Strips Pvt. Ltd. though no such material had been purchased by him and it is on the basis of these false documents that this accused had managed to avail credit facilities to the tune of Rs. 1 crore from OBC. It has also been pointed out by Ld PP that the statements of various transport dealers - PW1 to PW7, PW9, PW10, PW13 and PW15 corroborate the statement of PW36 that the builties / delivery challan in question were all false and fabricated for all these CBI No. 20/11 12/124 witnesses have testified that their vehicles were never used to deliver any steel items whatsoever from M/s Hind Steels India Ltd and M/s Rohini Strips Pvt. Ltd. to A2 Company. She has also relied upon the testimony of PW14 to contend that the transporters M/s New Janta Road Lines, reflected to be the transporters in the invoices (Ex.PW 6/1 to Ex.PW6/4, Ex.PW35/B, Ex.PW35/B1 and Ex.PW35/B2) was not even in existence. She has further submitted that this accused fraudulently also made a request to OBC for a pay order for Rs. 29 lacs favouring SAIL by falsely asserting therein that the said amount was to be paid to SAIL against an order placed by A2 Company upon SAIL with the sole intention of siphoning the said amount to clear the dues with SAIL of M/s Rohini Strips Ltd of which his brother co accused Alok Aggarwal was the Director. She has also pointed out that PW11 A.K. Mishra, Chief Vigilance Officer, OBC has proved the complaint Ex.PW11/A pursuant to which the FIR was registered and the investigation was conducted by the CBI. It is alleged in the said complaint that the accused M.K. Aggarwal being the Director of A2 Company obtained credit facilities to the extent of Rs. 1.25 crore from OBC fraudulently on apparently fake documents without any underlying trade transactions. It is the submission of Ld. PP that all the aforementioned documentary evidence clearly proves that this accused had all the intentions to cheat OBC and he did so by getting prepared false and fabricated documents.
CBI No. 20/11 13/1246. In rebuttal to the aforementioned contentions of Ld Prosecutor, Ld Defence counsels Sh. Rajiv Khosla and Sh. A.K. Roy on behalf of accused M.K. Aggarwal, Alok Aggarwal and accused A2 Company have submitted that no cheating/forgery has been committed by M.K. Aggarwal and that present is a case where default in the loan amount took place only due to losses in the business of A2 Company. They have pointed out that the accused M.K. Aggarwal in his statement tendered u/s 313 Cr.P.C has explained that his entire family was involved in steel business since the year 1965 and he himself had rich experience for trading in steel activities, having worked in many concerns/companies dealing with manufacturing and sale of steel products. They have also pointed out that this accused in the said statement has also informed this court that there was infact a resolution passed by M/s Upkar Estates Pvt. Ltd authorizing one Vijender Singh to execute a general power of attorney in favour of this accused with respect to the farm house and that the accused had submitted to OBC the extract of the meeting of the Board of Directors of M/s Upkar Estates Pvt. Ltd held on 13.5.1998 in this regard and a copy of the said extract, mark D1 has also been placed before this court during the aforementioned statement of accused recorded u/s 313 Cr.P.C. As regards the stock statement Ex.PW20/J1, the submission of Ld counsel is that there is no proof produced by the prosecution to show that the said statement is false apart from making a bald allegation in CBI No. 20/11 14/124 this respect. They have pointed out that the said statement is duly certified by a Chartered Accountant and that the stocks mentioned therein were hypothecated by this accused in favour of OBC. It is also the submission of Ld Defence counsels that the testimony of PW36 cannot at all be read to infer that he had forged the delivery challans/builties on the directions of this accused. According to the defence it cannot be imagined that a Director of a company would get involved himself in the transportation of goods and the contention is that accused M.K. Aggarwal was never involved in preparation of builties/delivery challans and that infact all the said documents were provided to him by PW15 Jawahar Lal, who had been engaged by him for the delivery of goods from M/s Hind Steels Sales Ltd and M/s Rohini Strips Pvt. Ltd. The contention of Ld Defence counsels is that infact PW1, Shiv Shankar the proprietor of M/s AgraGwalior Roadlines, PW15 Jawahar Lal and PW36 Anil Kumar Chauhan have all connived together to falsely implicate the accused M.K. Aggarwal. Ld Defence counsel Sh. Rajiv Khosla has pointed out that PW15 in his deposition has admitted that he was dealing with the transport business of M/s Rohini Strips Ltd but that he never got printed any receipts or builties with respect to his trucks and that he often used to use the trucks of PW1 M/s AgraGwalior Roadlines. This according to Ld counsel reveals that PW1 and PW15 used to work together for providing transport services not only to M/s Rohini Strips Ltd, A2 CBI No. 20/11 15/124 Company but also to many others and that all the builties/delivery challans used to be arranged by PW1, though the trucks were either provided by PW1 or by PW15. The contention therefore is that PW15 had provided the trucks to A2 Company for which he had used the builty book of PW1 but during investigation of this case, in order to save themselves from the consequences of this illegal act, under the pressure of CBI they falsely implicated the accused M.K. Aggarwal. As regards the deposition of PW36 Anil Kumar Chauhan, the argument is that he has also deposed falsely under the pressure of the investigating agency for he was also a party to the misdeeds of PW1 and PW15. In the alternative it has also been contended that PW6 being an employee of M/s Rohini Strips Pvt. Ltd with whom both PW1 and PW15 had regular transactions may have requested PW36 to fill up the particulars in the builties and that he would have obliged them in the usual course of conduct of business but when he was confronted by the CBI officials during the investigation of this case, he under fear chose to falsely implicate the accused M.K. Aggarwal. There is also another contention made by Ld Defence counsel namely that if the deposition of PW1 is to be believed that he had given a complete set of his bill book to a representative of M/s Rohini Strips Ltd on the asking of PW15, there was no need then for this company or the accused M.K. Aggarwal to fabricate delivery challans in the name of non existing firm namely M/s New Janta Roadlines and it CBI No. 20/11 16/124 could have used the bill book already available with it. As regards the truck owners / transport dealers namely PW2 to PW9 who have testified before the court that they had never supplied their trucks to M/s AgraGwalior Roadlines, the contention is that none of them in their deposition stated that they were aware of the entire transactions / business undertaken by trucks owned by them. It has been pointed out that PW2 admitted that it was his elder brother who was looking after the daytoday affairs of the vehicle in question, similarly PW3 stated that it was his son who used to maintain the records with respect to the vehicle in question and PW9 is only the wife of the owner who admitted that she had no personal knowledge of the trucks owned by her husband. Ld counsels have also contended that it is very interesting as to how the IO of this case managed to trace out the addresses of these witnesses, when he admittedly did not seek any record from the MLO of the concerned state. Their contention is that infact these addresses were provided to him by PW1 and PW15 only, which further shows that these were the persons who had actually provided transport services to the A2 Company for delivery of the produced purchased by it. As regards the siphoning of funds to SAIL, it has been pointed that the accused M.K. Aggarwal in his statement tendered u/s 313 Cr.P.C has explained that though A2 company had no director transactions with SAIL, it used to purchase cold rolled coils / sheets from M/s Rohini Strips which in turn used to purchase CBI No. 20/11 17/124 raw material for the said coils from SAIL on regular basis and on many occasions to cut short the time required to make payment, A2 used to directly make payment to SAIL on behalf of M/s Rohini Strips for the raw material purchased by them from SAIL. It is also the submission of the Ld. Defence Counsel Sh. Rajiv Khosla that there is absolutely not a shred of evidence produced by the prosecution to show that Alok Kr. Aggarwal in his personal capacity or in his capacity as one of the Directors of M/s Rohini Strips Ltd. had conspired in any manner with his brother M.K.Aggarwal to cheat the Bank. The contention is also that in the absence of the prosecution arraying M/s Rohini Strips Ltd. as an accused, Alok Aggarwal only being one of the Directors of the said company cannot be held guilty only because the dues of the said company were adjusted by SAIL against the pay order issued on behalf of A2 company.
7. It has also been lastly contended by Ld Defence counsel Sh. Khosla that present is not at all a case of cheating or fraud but infact is a case where due to a slump in the steel market, accused 1 and his company suffered huge losses and therefore were unable to make payments as per the schedule set by the Bank. It has been submitted that this court must take into account that the OBC has settled its case with the accused M.K. Aggarwal and A2 Company under the OTS scheme of the Bank and that the evidence in this respect brought on record by the defence through its witness DW1 and documents CBI No. 20/11 18/124 Ex.DW1/A, Ex.DW1/B, Ex.DW1/C and Ex.DW2/A clearly reveals that the Bank did not consider the present case to be that of willful default or fraud etc for the OTS scheme does not cover such cases. Ld counsel has submitted that in cases where a bank has itself settled its dues under the OTS scheme the Hon'ble Delhi High Court in two of its following judgments has quashed the criminal proceedings against the borrowers who had been similarly chargesheeted as the present accused persons :
Joginder Singh Logani Vs State (CBI) Crl. M.C 3400/2015 decided on 4.9.2015.
Sanjay Bhandari & Anr. Vs CBI Crl. M.C. No. 5798/2014 and Crl. M.A. No. 19744/2014 decided on 29.6.2015.
8. In rebuttal Ld PP Ms. Shashi has relied upon the following judgments to contend that the existence of the settlement between the accused 1, 2 and the Bank has no relevance to the facts of the present case where the prosecution has brought enough evidence to prove that the accused 1, 2 and 5 are guilty not only of cheating but also of the serious offences of forgery and of having conspired with public officials to cause loss to a nationalized bank :
State of Maharashtra Through CBI Vs Vikram Anantrai Doshi 2014 (10) SCALE 690.
Runu Ghosh Vs CBI 2011 SCC Online Del 5501
9. I have carefully considered the submissions made by the CBI No. 20/11 19/124 Ld. Counsels and have also perused the evidence produced by the prosecution. In the considered opinion of this court though no doubt it is acceptable that a borrower may, for bonafide reasons beyond his control, be unable to repay a loan taken from a bank and that itself does not lead to an inference that he had the intention to cheat the bank, the circumstances proved on record by the prosecution in the present case do lead conclusively to the inference that the accused M.K.Aggarwal had all the intentions to cheat the bank right from the time that he had applied for credit facilities on behalf of A2 Company. The entire chain of circumstances proved on record by the prosecution when considered cumulatively reveals that it was this accused who was at the helm of affairs of not only A2 Company but also M/s Rohini Strips Ltd. and that the sole intention of his applying in the name of M/s Raswasia India Pvt. Ltd (accused A2 Company), for credit facilities was to clear the debts of M/s Rohini Strips Ltd and for this purpose he in conspiracy with his brother Alok Aggarwal submitted with OBC, forged invoices/builties and stock statements reflecting bogus transactions of purchase of steel by accused A2 Company from M/s. Rohini Steels Ltd.
10. Let us now consider each of the said circumstances proved on record by the prosecution to prove its charge against the accused M.K. Aggarwal and accused A2 Company.
(a) The first of these circumstances being relied upon by the CBI No. 20/11 20/124 prosecution is the fact that it was accused M.K. Aggarwal only who was at the helm of affairs of the company M/s Rohini Strips Ltd. Though it has been sought to be strenuously contended on behalf of this accused that he had nothing to do with the affairs of M/s Rohini Strips Ltd., the said contention is proved to be a blatant lie in view of Ex. PW20/D1, the application made by this very accused with OBC while seeking credit facilities. In the said application this accused had himself mentioned that he is the Chief Executive Officer (CEO) and Promoter of M/s Rohini Strips Ltd. In addition, two of the prosecution witnesses have clearly and categorically deposed that it was this accused only who was solely looking after the entire affairs of M/s Rohini Strips Ltd. and the said depositions have not been questioned in this respect by this accused. PW36 Anil Kumar Chauhan has interalia deposed that he knew the accused M.K. Aggarwal since the year 1991 when he had joined the services of M/s Rohini Metal and Alloy Pvt. Ltd, of which M.K. Aggarwal was a Director. According to this witness his father, an employee of MCD knew M.K. Aggarwal and had got him this job. He has further deposed that this company merged with M/s Rohini Strips Ltd. in the year 1993 and that it was accused M.K. Aggarwal who used to look after the work of M/s Rohini Strips Ltd. He has further stated that initially the office of M/s Rohini Strips Ltd. was situated at 48/52, Punjabi Bagh and its factory was being operated from District Bhind (MP) and that in the year 1998 CBI No. 20/11 21/124 the office of this company was shifted to 79/41, Punjabi Bagh from where some business of M/s Raswasia India Pvt. Ltd. was also being conducted by accused M.K. Aggarwal only. According to this witness the accused Alok Aggarwal, the younger brother of M.K. Aggarwal only occasionally used to visit the office of M/s Rohini Strips Ltd. and that it was accused M.K. Aggarwal only who used to look after the business of M/s Rohini Strips Ltd. His entire deposition reveals that in his 78 years of service with company M/s Rohini Strips Ltd., he was aware of who all were in actual charge of its affairs for he has also been able to provide the name of the Chartered Accountant and Company Secretary of this company. In his crossexamination no suggestions whatsoever have been put to him that he has deposed falsely with respect to the role of accused M.K. Aggarwal being solely at the helm of affairs of the accused M/s Rohini Strips Ltd. The other witness who has shed light on the role of this accused in the affairs M/s Rohini Strips is PW15 Jawahar Lal. He has interalia deposed that he had started his career as a truck driver and had eventually alongwith his brother purchased five trucks and had started his own transport business and had worked as a transporter for the company M/s Rohini Strips Ltd., amongst other firms and companies. He has further deposed that he remained associated with accused M.K. Aggarwal for almost 67 years and according to him it was this accused who was the owner of M/s Rohini Strips Ltd. Yet again not a CBI No. 20/11 22/124 single question has been put in the crossexamination of this witness questioning this part of his deposition. Though it is correct that there cannot be any concept of an individual owning a limited company, the deposition of this witness is to be understood in the background of his own status of being a transporter and the limited knowledge that he would have about the actual terminology. His deposition has therefore to be to read to understand that for all practical purposes the entire business of M/s Rohini Strips Ltd. was being done by accused M.K.Aggarwal only. Further the accused M.K. Aggarwal himself in his statement tendered under section 313 Cr.P.C in reply to question No. 94 with respect to the delivery of goods by M/s Rohini Strips Ltd. to accused A2 Company has also stated "we had a contract with Jawahar Lal to transport our material from Gwalior to Delhi and it was his job to provide us trucks". In the context of the question put it is clear that 'we' is being referred to on behalf of M/s Rohini Strips Ltd and therefore this statement also makes it very apparent that PW36 and PW 15 Jawahar Lal have deposed correctly that it was the accused M.K. Aggarwal only who was looking after all the business of M/s Rohini Strips ltd. including its transportation work In the considered opinion of this court the material referred to herein above is sufficient to infer that this accused was at the helm of affairs of M/s. Rohini Strips Pvt Ltd.
(b) The relevance of this circumstance is that it explains the interest of CBI No. 20/11 23/124 this accused in getting the credit facilities applied in the name of accused A2 Company diverted to the accounts of M/s. Rohini Strips Ltd. It also explains as to how he was in a position to get prepared forged and fabricated invoices properly issued in the name of M/s. Rohini Strips Ltd. reflecting sale / trading of steel from this company to A2 Company which is the next circumstance proved on record by the prosecution. Admittedly, this accused had submitted an application dated 22.2.1998, Ex.PW21/L with IFB OBC requesting therein for opening of LC of Rs. 50 lacs in favour of M/s Rohini Strips Ltd and during the negotiation of the said LC, this accused and his brother / co accused Alok Aggarwal, Director of M/s Rohini Strips Ltd. deposited with the negotiating bank, Bombay Mercantile Cooperative Bank Ltd., the invoices Ex.PW6/1 to Ex.PW6/4, Ex.PW35/B, Ex.PW35/B1 and Ex.PW35/B2. The said set of invoices/builties reflect the purchase and delivery of various steel items to A2 Company from M/s Rohini Strips Pvt. Ltd through a transporter namely M/s New Janta Roadlines. To prove that the said transactions of purchase of steel were bogus and the said invoices/builties were fake the prosecution is relying upon the testimony of PW6 Ganga Singh Chauhan, PW10 A.K.Nigam, Transport Inspector, RTO, Gwalior, PW13 J.S.Sodhi, PW14 Narayan Prasad, Retired Postman, Post Office Naya Bazar, Gwalior, PW35 R.Chandra, Asst. Government Examiner of Questioned Documents (AGEQD) and PW CBI No. 20/11 24/124 36 Anil Kumar Chauhan.
11. PW6 Ganga Singh Chauhan examined by the prosecution has interalia deposed that he has been engaged in transport business for the last twenty years at Gwalior and that he runs his business in the name of M/s Chauhan Road Lines and that though the trucks bearing no. CPH7482, MP07G0471, MP07G1210, MP07G 0512 shown in the aforementioned invoices stand registered in his name, the said vehicles were never attached with New Janta Road Lines, Naya Bazar, Gwalior and that they had never carried out any material of M/s Rohini Strips Pvt. Ltd. to Delhi.
12. PW10 A.K.Nigam, Transport Inspector from the office of RTO, Gwalior has confirmed that PW6 is the registered owner of the aforementioned vehicles and that this information was furnished to the CBI vide Ex. PW10/A and Ex. PW10/B.
13. PW13 J.S.Sodhi has interalia deposed that he is a Transport Agent since 1982 and that he owns a fleet of trucks and that he had inherited this business from his father who was earlier running it alongwith his partner in the name and style of M/s New Janta Goods Transport Company. He has further deposed that presently he is running the same business under the name and style of M/s Madhya Bharat Transport Company and that the partnership firm M/s New Janta Goods Transport Company had been got dissolved in the year 1968 by his father. He has further deposed that to the best of his CBI No. 20/11 25/124 knowledge no transport company by the name of M/s New Janta Roadlines was operational from Naya Bazar, Gwalior.
14. PW14 Narayan Prasad has interalia deposed that in the year 199798 he was posted as a postman at Laskar City Post Office, Naya Bazar, Gwalior, M.P. and that his duties included the distribution of letters in the said area, more particularly Naya Bazar. He has deposed that he is aware of all the addresses of the companies / firms existing in the said area and that during his tenure in Naya Bazar which lasted till 2004, he had not come across any firm by the name of M/s New Janta Roadlines in the area of Naya Bazar.
15. PW35 R.Chandra, AGEQD has interalia deposed that the questioned invoices / builties (Ex. PW1/1 to Ex. PW1/16, Ex. PW6/1 to Ex. PW6/4, Ex. PW35/B, Ex. PW35/B1 and Ex. PW 35/B2) had been sent to him for his expert opinion and after comparing them with the specimen handwriting of one Anil Kumar Chauhan he had come to the conclusion that the said invoices / builties had been written by Anil Kumar Chauhan (Ex.PW1/1 to Ex.PW1/16 are lorry receipts / builties relating to another transaction which will be discussed in detail a little later in the judgment).
16. PW36 Anil Kumar Chauhan (whose deposition has been discussed in the preceding paragraphs also) has also deposed about these invoices. As per this witness on the instructions of accused M.K. Aggarwal he had filled up the details of trucks etc in the builties / CBI No. 20/11 26/124 invoices Ex.PW1/5 to Ex.PW1/10, Ex.PW6/1 to Ex.PW6/4, Ex.PW35/B, Ex.PW35/B1, Ex.PW35/B2. He has deposed that for some of the builties / invoices the accused M.K. Aggarwal had given the details to be filled in writing and some other were got filled in from him by M.K. Aggarwal sitting across the table. He has specifically deposed that he had filled the builties / invoices on the instructions of M.K. Aggarwal as he was his employee and was working with him and had he refused to fill in these entries, his services would have been terminated by M.K.Aggarwal. According to this witness two other employees working with M/s Rohini Strips Pvt. Ltd. namely Aman Bhardwaj and Purshottam Sharma had also been asked by M.K. Aggarwal to fill in the builties and bills and invoices which they did at his instance. He has categorically denied the suggestion that there were proper office records pertaining to the said builties / invoices and according to him no transactions as reflected in the invoices Ex.PW6/1 to Ex.PW6/4, Ex.PW35/B, Ex.PW35/B1 and Ex.PW35/B2 had taken place.
17. Now the submissions of Ld PP Ms. Shashi are that the aforementioned depositions of PW13 and PW14 prove that no firm in the business of transport by the name of M/s New Janta Roadlines ever existed in Gwalior; the testimony of PW6 proves that the truck numbers of his company have been falsely mentioned in the invoices Ex.PW6/1 to Ex.PW6/4, Ex.PW35/B, Ex.PW35/B1, Ex.PW35/B2 CBI No. 20/11 27/124 and the testimony of PW36 proves that it was the accused M.K. Aggarwal who has forced this witness Anil Kumar Chauhan to fabricate the said invoices.
18. On the other hand, Ld Defence counsels Sh. Khosla and Sh. Roy have submitted that though they are not disputing the depositions of PW10, PW13 and PW14, PW6 and PW36 have deposed false facts. According to the detailed written submissions filed by the Ld counsels PW 36 has falsely deposed that he had been instructed by the accused M.K. Aggarwal to fill up the name of M/s New Janta Roadlines in the aforementioned invoices and that infact the said invoices had infact been filled up by PW36 on asking of PW 1 and PW15 and during investigation he in connivance with them has falsely implicated accused M.K. Aggarwal at the instance and pressure of CBI. However interestingly not a single suggestion has been put to this witness in this respect. The only suggestion put to him in his cross examination with respect to accused M.K. Aggarwal instructing him to fill the builties / invoices is that there were proper office records pertaining to the builties / invoices which were filled in by him. There is not even a single suggestion put to this witness that Mahender Kr. Aggarwal had not instructed him to fill the invoices and the builties in question or that he had conspired with PW 15 Jawahar Lal and PW1 Shiv Shankar Singh and had filled up the said invoices / builties at their instance and has deposed falsely that he had done so on the CBI No. 20/11 28/124 instructions of accused M.K.Aggarwal. In the absence of questioning the credibility of this witness during his crossexamination, in the considered opinion of this court, it could not have been argued by Ld Defence counsel Sh. Khosla during final arguments that this witness in connivance with PW1 and PW15 has falsely implicated the accused M.K. Aggarwal or that he would have filled up the builties on the request of PW1 or PW15. The contention of Ld counsel Sh. Khosla however is that the crossexamination of PW1 and PW15 should be read alongwith the testimony of PW36 to come to a right conclusion. His submission is that a careful reading of their depositions will clearly reveal that both of them had dealings with M/s Rohini Strips Ltd. and used to transport goods on behalf of this Company and it is they only who had at the time of loading the goods from the factory of M/s Rohini Strips Ltd. for onward delivery to accused A2 company provided PW 36 with the builties in the name of M/s New Janta Roadlines and thereafter PW36 on the basis of the said builties had mentioned the name of this transporter and its trucks in the invoices in question.
19. In the considered opinion of this court the said submission of the Ld. Defence Counsel has no merit for howsoever carefully and repeatedly one reads the depositions of these two witnesses no inference whatsoever can be drawn that PW36 had filled up the invoices on the asking of PW1 and PW 15 for the reasons CBI No. 20/11 29/124 being asserted by the Defence. Infact not a single question relating to PW 36 or these invoices in particular have been put to these two witnesses. Admittedly these two witnesses have been examined by the prosecution to prove that the lorry receipts/builties Ex. PW1/1 to Ex. PW1/16 showing the purchase and delivery of various steel items by accused A2 Company from M/s Hind Steel Sales were also forged and fabricated. As narrated hereinabove the accused A2 Company had also requested OBC for opening a LC of Rs 50 lacs in favour of M/s Hind Steel Sales, Naraina and during the negotiation of said LC the said receipts/builties had been deposited with the negotiating bank. Now let us examine what these two witnesses have deposed and what inferences can possibly be drawn from the said depositions. PW1 Shiv Shankar Singh has interalia deposed that he is the proprietor of M/s AgraGwalior Roadlines and that neither he nor his staff at any point had filled up the lorry receipts Ex.PW1/1 to Ex.PW1/16. According to him on the request of one Jawahar Lal who is also a transport dealer he had given his own lorry receipt book to a representative of M/s Rohini Strips. Now as narrated hereinabove this Jawahar Lal has also been examined by the prosecution as PW15. He has interalia deposed that he owns five trucks and that he had associated the same with M/s AgraGwalior Roadlines from Delhi and M/s Himachal Transport and M/s Haryana Transport functioning from Gwalior and that his drivers or he himself used to collect the hire charges from these firms. He has CBI No. 20/11 30/124 also deposed that he had worked as a transporter for accused M.K. Aggarwal who was the owner of M/s Rohini Strips Ltd and that for the goods which were transported on the instructions of M.K. Aggarwal in his trucks, the builties and receipts used to be arranged by M.K. Aggarwal or his staff. He has further deposed that in the year 1998 accused M.K. Aggarwal had asked him to arrange for blank builties/lorry receipts and he in turn had requested the owner of M/s AgraGwalior Roadlines, Azadpur to arrange the same.
20. Now the contention of Ld. Counsel Sh. Khosla is that since PW1 in his crossexamination has admitted that generally he used to give the lorry receipt book only to those business parties with whom he had every day dealings it should be inferred that PW1 had dealings with M/ s Rohini Strips and had transported goods on its behalf , more so when PW36 himself has also stated that M/s Agra Gwalior Road Lines, the firm of PW1 also used to have dealings with M/s. Rohini Strips for transportation of its goods. Though this court agrees that such an inference can possibly be drawn from the aforementioned statements what is impossible to conclude from the said statements is that PW36 would have prepared the invoices Ex. PW6/1 to Ex. PW6/4, Ex. PW35/B, Ex. PW35/B1 and Ex. PW35/B2 on their instructions only. However the ingenious argument advanced by Ld. Counsel Sh. Khosla is that the aforementioned conclusion can be drawn by making the following assumptions from CBI No. 20/11 31/124 the cross examination of PW1 and PW15 and from the statement tendered by accused Alok Aggarwal under section 313 Cr.P.C :
a) Since PW1 and PW15 both used to work as transporters for M/s Rohini Strips Ltd. and PW36 used to look after the transport work of M/s Rohini Strips Ltd., both of them were known to PW36.
b) PW36 also knew accused M.K. Aggarwal, he being the real brother of Alok Aggarwal, Director of M/s Rohini Strips Ltd., and also carrying on the business of accused A2 Company in the same building where a branch office of M/s Rohini Strips Ltd. was situated in Punjabi Bagh where PW36 used to work.
c) Taking advantage of knowing accused M.K. Aggarwal, the Managing Director of accused A2 Company, on request of PW1 and PW15, PW36 got them the business to transport the steel consignments from the godown of M/s Hind Steel Sales, Naraina to the godown of accused A2 Company in Naraina and it is he who asked PW15 and PW1 to give him a blank lorry receipt booklet for the said purpose and it is he who filled up the said lorry receipts in the name of accused A2 Company. During the investigation of this case when all these three persons felt that they could be held responsible for the blank lorry receipts being filled up in this manner, all of them connived together to falsely implicate the accused M.K. Aggarwal. Further they only told the IO the names of the truck owners who had actually transported the consignment of steel goods from M/s Hind CBI No. 20/11 32/124 Steel Sales, Naraina to the godown of accused A2 Company for the record shows that the IO otherwise had not collected any such information from any other source.
d) As regards the transportation of goods from M/s Rohini Strips Ltd. to accused A2 Company, it is again these three persons only who arranged the trucks. PW15 in particular along with PW6 had provided the trucks for the said purpose and it was PW15 only who had provided the builties/lorry receipts in the name of M/s New Janta Roadlines to PW36 who had then prepared the invoices Ex. PW6/1 to Ex. PW6/4, Ex. PW35/B1 and Ex. PW35/B2.
e) In reality neither accused Alok Kumar Aggarwal nor accused M.K. Aggarwal were in any manner involved in the transportation of goods and that the receipts Ex. PW1/1 to PW1/16 and the lorry receipts in the name of M/s New Janta Roadlines corresponding to the invoices Ex. PW6/1 to Ex. PW6/4, Ex. Ex. PW35/B and Ex. PW35/B1 were all prepared by PW1, PW15 and PW36 and the same were prepared against genuine transactions only. In the statement tendered under section 313 Cr. P.C. the accused Alok Aggarwal has explained that the steel consignments were loaded in trucks from the factory of M/s Rohini Strips Ltd. at Gwalior by PW15 and after the said loading the same truck numbers were informed to a clerk of M/s Rohini Strips Ltd. and the said numbers were then filled up by PW36 in the invoices Ex. PW6/1 to Ex. PW6/4, Ex. Ex.
CBI No. 20/11 33/124PW35/B and Ex. PW35/B1. He has also explained that PW6 Ganga Singh Chauhan was a transporter at Gwalior and his services used to be availed by M/s Rohini Strips Ltd. for transportation of goods within Gwalior and that though he was not directly engaged for transporting the material from Gwalior to New Delhi by M/s Rohini Strips Ltd., Jawahar Lal may have used his trucks for the said purpose.
f) If the accused M.K. Aggarwal was indeed in possession of the complete blank lorry receipt book handed over by PW1 to a representative of M/s Rohini Strips Ltd., there was no occasion for him to have got printed fake builties/lorry receipts in the name of M/s New Janta Roadlines for he could have used the same book for showing the transportation of steel consignment from M/s Rohini Strips Ltd. to accused A2 Company.
21. In the considered opinion of this court the contention advanced by the Ld. Counsel Sh. Khosla cannot at all be accepted for in the absence of any cross examination of PW1, PW6, PW15 and PW36 on the aforementioned facts, it is not legally permissible to make any assumptions as sought to be done by the defence on the basis of only one or more statements made by the said witnesses in their deposition. The entire purpose of conducting a trial and examining witnesses before a Court is that all parties to the trial get an opportunity to examine and cross examine the witnesses on the relevant issues and the Court arrives at a just conclusion after CBI No. 20/11 34/124 considering the said examination and the crossexamination of the witnesses. The court cannot at all be called upon to discredit witnesses behind their back in the manner sought to be done in the present case. Further at the stage of final arguments the Ld. Defence Counsel Sh. Khosla also cannot be heard to contend that even if the credibility of PW1, PW6, PW 15 and PW36 has not been questioned on the aforementioned issues, during crossexamination, this Court must not rely upon their testimony only because of the statements tendered by the accused persons under sec 313 and 315 Cr.P.C. without any supporting evidence whatsoever. The mere statement of the accused Alok Aggarwal that the services of PW6 Ganga Singh Chauhan used to be availed by M/s Rohini Strips Ltd frequently for transportation of goods within Gwalior and PW15 may have also used his trucks for transporting the steel consignments in question from Gwalior to the godown of accused A2 Company at New Delhi, can hardly be held to be of any consequence for neither have these facts been put to PW6 nor to PW15. No effort whatsoever has been made even to produce any evidence in defence to show that PW15 was paid the transportation charges for the said consignment. Further very interestingly accused M.K. Aggarwal appears to be absolutely confused in his statement u/s 313 Cr.P.C as to what stand he should take with respect to PW6 - when the part statement of this accused under section 313 Cr.P.C was recorded on 4.6.2015 , this accused in CBI No. 20/11 35/124 reply to the incriminating deposition of PW6 Ganga Singh Chauhan (question no. 88) sought to vehemently state that he did not know PW 6 Ganga Singh Chauhan at all and that he had seen him for the first time in the court. However when he was further examined under section 313 Cr.P.C on 5.6.2015, and the deposition of PW36 was put to him he took a somersault and stated that all the lorry receipts / invoices deposed to have been filled up by PW36 on his instructions were infact provided to his company by PW6 Ganga Singh Chauhan and Jawahar Lal. No explanation was forthcoming during final arguments for the said contradictory stands. Even otherwise, it becomes evident that the defence set up during final arguments is not even consistent with the statements tendered by the accused M.K. Aggarwal and Alok Aggarwal under sec 313 Cr. P.C. Though, as narrated hereinabove it has been sought to be strenuously contended that PW36 had misused his relations with accused M.K. Aggarwal to get PW1 and PW15 the business of transporting the steel consignments from the godown of M/s Hind Steel Sails, Naraina to the godown of accused A2 Company, accused M.K. Aggarwal in his statement tendered under sec 313 Cr. P.C. has stated that it is he who had appointed PW15 Jawahar Lal to provide accused A2 Company with trucks, which he did, to load the material from the warehouse of M/s Hind Steel Sails. Both accused M.K. Aggarwal and Alok Aggarwal are categorical in their statements tendered under sec. 313 CBI No. 20/11 36/124 Cr. P.C. that PW 36 had nothing to do with the working of accused A 2 Company or the transportation of goods from the premises of M/s Hind Steel Sales to its godown in Naraina and that he was only an employee of M/s Rohini Strips Ltd.
22. Further in the considered opinion of this court the attempt by the Ld. Defence Counsels to somehow connect the forged invoices Ex. PW6/1 to Ex. PW6/4, Ex. PW35/B, Ex. PW35/B1 and Ex. PW35/B2, which reflect the delivery of consignment of steel from the Gwalior factory of M/s Rohini Strips Ltd. to the godown of accused A2 Company in Naraina with the invoices Ex. PW1/1 to Ex. PW1/16 and to contend that if accused M.K. Aggarwal was in possession of a blank lorry receipt book in the name of M/s Agra Roadlines, there was no need for him to have used forged builties of M/s New Janta Roadlines, Gwalior, a non existing firm, runs counter to their own contention that the working of M/s Rohini Strips Ltd. was completely distinct and separate from that of accused A2 Company. Admittedly as per the defence put forward by the accused M.K. Aggarwal in his statement under section 313 Cr.P.C, for the LC got issued in favour of M/s Hind Steel Sales Ltd, it was the duty of accused A2 Company to appoint its transporter and take delivery of steel consignment from the godown of M/s Hind Steel Sales Ltd while for the LC got issued in favour of M/s Rohini Strips Ltd, it was the duty of M/s Rohini Strips Ltd to deliver the steel consignments to the CBI No. 20/11 37/124 godown of accused A2 Company - clearly therefore accused M.K. Aggarwal was bound to have deposited with the Bank two different set of builties issued by two different transporters and he therefore could not have used the blank lorry receipt book of M/s Agra Roadlines for transactions under both the LCs.
23. Further the submission of the defence that PW1, PW15 and PW36 in connivance with each other falsely implicated accused M.K. Aggarwal only to save themselves from prosecution for the offence of filling up blank builties does not appeal to common sense at all. If the transactions of delivery of goods were genuine as contended by Ld. Counsel Sh. Khosla, there is no offence made out for which the investigating agency could have possibly prosecuted them. Though Ld. Counsel Sh. Khosla has sought to strenuously contend that this court should visualize how PW36 alone was looking after the transportation of M/s Rohini Strips ltd. and how alone he was solely responsible for filling up the invoices Ex. PW6/1 to Ex. PW6/4, Ex. PW35/B, Ex. PW35/B1 and Ex. PW35/B2, the evidence on record does not at all help this court to make any such visualizations. In the considered opinion of this court there is absolutely no valid or sufficient reason brought forward by the defence for this court to disbelieve the testimony of PW36. In fact in the considered opinion of this court his testimony is also corroborated by the deposition of PW17 and the stock statements Ex.PW20/J2 and Ex.PW24/DY submitted with CBI No. 20/11 38/124 OBC, IFB by accused M.K. Aggarwal on behalf of accused A2 Company.
24. Coming first to the deposition of PW17, Arun Kumar Bhatia, this witness has inter alia deposed that he had worked with M/s Rohini Strips Ltd. from 1995 to 1998 and on being shown Ex.PW 35/B (one of the forged invoices) he has specifically deposed that the vehicle mentioned in the said invoice namely truck no. MP07G1368 belonged to M/s Rohini Strips. Yet again this statement of this witness has not been disputed and he has not been put any suggestion in his cross examination that the vehicle did not belong to M/s Rohini Strips Ltd. A perusal of Ex. PW35/B shows that in the said invoice a consignment of steel coils is stated to have been sent for delivery from the factory of M/s Rohini Strips Ltd. to the premises of accused A2 Company at New Delhi by truck No. MP07G1368 through the transporter M/s New Roadlines Gwalior. The said invoice is also accompanied by a corresponding builty/lorry receipt issued in the name of M/s New Roadlines Gwalior. In other words as per this invoice / lorry receipt the said truck belonged to M/s New Janta Roadlines. Now if the defence taken by accused M.K. Aggarwal and Alok Aggarwal namely that the builties in the name of M/s New Janta Roadlines, Gwalior and the trucks mentioned therein had been provided to them by PW15 and PW6 was correct then clearly a truck belonging to M/s Rohini Strips Ltd could not have been mentioned in CBI No. 20/11 39/124 the said invoice. The fact that it is so mentioned and the accused M.K. Aggarwal and Alok Aggarwal did not choose to controvert the deposition of PW17 that this truck belongs to M/s Rohini Strips Ltd clearly corroborates the statement of PW36 that no consignments of steel were actually transported from M/s Rohini Strips Ltd to accused A2 Company and that he had been dictated the numbers of the trucks and other details to be filled in the invoices Ex. PW6/1 to Ex. PW6/4, Ex.PW35/B, Ex. PW35/B1, Ex. PW35/B2. by the accused M.K. Aggarwal only.
25. Further the deposition of PW36 is also corroborated by the stock statements Ex.PW20/J2 and Ex.PW24/DY submitted by accused M.K. Aggarwal on behalf of accused A2 Company. These statements of stock as on 31.8.1998 and 30.9.1998 respectively reflect that no goods whatsoever were received by accused A2 Company till 30.9.1998 with regard to the LC got issued in favour of M/s Rohini Strips Ltd by accused A2 Company on 22.8.1998. It has been submitted by the Ld PP that had there been any actual transactions of sale/purchase of steel between accused A2 Company and M/s Rohini Strips Ltd in pursuance of the aforementioned fabricated invoices/builties, the said statements would have reflected the receipt of the said steel goods. On the other hand it has been contended on behalf of accused M.K. Aggarwal that since the steel consignments / goods were to be delivered from Bhind, Madhya Pradesh to Delhi and CBI No. 20/11 40/124 sometimes the delivery of goods could take more than a month, there was nothing amiss in the said statements and the goods in question may have been received by accused A2 Company after 30.9.1998. This court does not find much merit in the contention made by the accused for the coaccused Alok Aggarwal, the Director of M/s Rohini Strips Ltd in his statement tendered u/s 313 Cr.P.C (in answer to question no. 104) has stated that the goods in question had been dispatched from the Gwalior unit of M/s Rohini Strips Ltd as on 22/23.08.1998 and would have reached the premises of M/s Raswasia India Pvt Ltd within 34 days thereof. In the considered opinion of this court the contrary contentions being taken by accused M.K. Aggarwal and his coaccused Alok Aggarwal itself proves that both of them are lying. At this stage it would also be relevant to consider an inspection report Ex.PW24/D made by the officials of OBC with respect to the inspection carried out by them of the stock of accused A 2 Company on 7.11.1998. PW24 Anil Sahi, the then AGM with OBC has proved this report, Ex. PW24/D made by the officials of OBC namely Vipin Jain (who is one of the accused persons in the present case) and Sh. S.C.Madan, the then Chief Manager. As per the said report both these officials along with accused M.K. Aggarwal had on 07.11.1998 visited the premises Y20, Loha Mandi, Naraina, New Delhi28, (the address of which had been furnished by accused M.K.Aggarwal as that of the godown of accused A2 company) and CBI No. 20/11 41/124 had found that no name plate of A2 company was displayed at the said premises and also observed that some other persons were present at the said premises who appeared to be the owners of the said premises. According to this report the stock lying in the said godown premises did not appear to be belonging to accused A2 company and it is specifically mentioned in the report that accused M.K.Aggarwal appears to have given wrong information to the bank and that the funds released by the bank in favour of A2 company have been diverted from the company. It is also mentioned in the said report that the books of accounts of accused A2 company were examined at the Branch and it was found that the list of debtors furnished by M.K.Aggarwal was incorrect and that two firms mentioned in the list of debtors had confirmed to the bank that they had no transactions with accused A2 company. Now admittedly the accused M.K. Aggarwal having accompanied the bank officials on the said visit and being thereafter also called by the bank to explain the aforementioned facts did not furnish any explanation to the bank at all and this is evidenced by the communications Ex.PW39/G and Ex.PW21/C sent by the Bank to accused M.K. Aggarwal and his failure to give any reply thereto. In the communication Ex.PW21/C, the visit of the bank officials for inspection was clearly mentioned and this accused was called upon to submit the latest balancesheet of accused A2 Company alongwith the copies of all the sale bills. Admittedly as per CBI No. 20/11 42/124 the record of the OBC and the deposition of PW21 no such bills or balancesheet was deposited by the accused M.K. Aggarwal on behalf of accused A2 Company. Further even during trial despite PW24 categorically deposing about the said visit and also identifying signatures of Vipin Jain on the inspection report and the report being exhibited, not a single question disputing the said visit or the report was put to PW24 by the Ld. Defence Counsel appearing on behalf of accused M.K.Aggarwal and A2 company. In his statement tendered u/s 313 Cr.P.C all that this accused had to offer as an explanation for the observations in the said report that there were other persons occupying the godown in question, was that the said godown was shared by many tenants. No evidence was led by the accused in this regard at all. During the course of final arguments also, all that was orally submitted was that all the books of accounts of the accused A2 Company had been seized by the CBI and that therefore the accused is unable to prove that accused A2 Company had infact traded in steel and all the statements of accounts maintained and submitted by it were correct. In the considered opinion of this Court if infact the accused M.K. Aggarwal and accused A2 Company were prejudiced in proving their Defence only because of the seizing of their records by the Investigating Agency all that was required on their behalf was to ask for the said records from this Court. Admittedly no steps in this regard were at all taken by the accused at any point of time and in such view CBI No. 20/11 43/124 it is being rightly contended by the Prosecution that the accused have no plausible defence to this circumstance brought on record by the Prosecution.
26. At this stage it would also be relevant to discuss another corroborating circumstance brought to the fore by the prosecution namely the conduct of accused A2 Company in entering other bogus transactions also. The prosecution has examined one person namely Pramod Kumar Grover as PW28 to prove that the accused A2 Company was habitual of entering into bogus transactions. This witness has interalia deposed that he runs his business in the name of M/s R.P.Steel Trading Company and operates from Loha Mandi, Naraina and he knew one Mr. Chandak who was a broker also operating from Loha Mandi, Naraina and that the said Mr. Chandak used to often ask him for issuance of bills in favour of certain firms and companies without actually trading in iron and steel with these companies and that he used to issue such bills against cheques issued in his favour by such firms and companies. He has further deposed that after depositing such cheques in his bank account OBC, Balimaran, he used to hand over the cash to Mr. Chandak after deducting his commission. He has further gone on to depose that in the year 1998 Mr. Chandak had handed him over two cheques in the amounts of Rs.4 lacs and Rs. 2 lacs Ex. PW28/A1 and Ex. PW 28/A2 respectively and that he had deposited these cheques in his CBI No. 20/11 44/124 accounts and after getting the cash withdrawn and deducting his commission, he had handed over the rest of the amount to Mr. Chandak. He has further categorically deposed that though these cheques have been issued on behalf of M/s Raswasia India Pvt. Ltd. in his favour, he had never supplied any steel or traded in steel with the said company. Now yet again this witness has not been cross examined at all on behalf of accused 1, 2 and 5 but it is sought to be contended that since the prosecution did not bother to examine Mr. Chandak, nothing incriminating comes to the fore from the testimony of this witness. In the considered opinion of this Court the said contention does not have much merit for it is not being disputed that the account payee cheques had been issued by accused A2 Company. The fact to whom the said account payee cheques had been issued, if not in favour of the firm of PW28, was in the exclusive knowledge of accused M.K.Aggarwal or the accused A2 Company. If they have not come forward with any defence whatsoever with respect to the issuance of the said cheques it is legally permissible, as contended by the prosecution, to raise an inference that the transactions relating to the cheques deposed by PW28 were infact bogus.
27. In the considered opinion of this Court, the testimony of PW13 and PW14 proves that no firm in the business of transport by the name of M/s New Janta Roadlines ever existed in Gwalior. The testimony of PW6 proves that the truck numbers of his company have CBI No. 20/11 45/124 been falsely mentioned in the invoices Ex. PW6/1 to Ex. PW6/4, Ex. PW35/B, Ex. PW35/B1 and Ex. PW35/B2. The testimony of PW36 proves that it was the accused M.K.Aggarwal who had forced this witness Anil Kumar Chauhan to fabricate the said invoices. The deposition of PW17, the stock statements Ex.PW20/J2 and Ex.PW24/DY and the issuance of cheques Ex PW28/A1 and A2 corroborate the depositions of the aforementioned witnesses and therefore the entire evidence discussed herein above is sufficient to hold that the prosecution has proved that these invoices had been got forged and fabricated by the accused M.K.Aggarwal to induce OBC to issue him letter of credit in favour of M/s Rohini Strips Ltd. The contention of Ld Defence counsel Sh. Khosla that if accused M.K. Aggarwal is to be held guilty for the same, then this court should also hold Anil Kumar Chauhan guilty of forgery has absolutely no merit for clearly this person cannot be stated to have the mensrea to commit the offence of forgery. The reliance of Ld Defence counsels in support of this contention on the judgment pronounced in the case titled and reported as Charu Sharma Vs Commissioner of Customs 2008 SCC (2009) 233 ELT 90 is misplaced for the facts in the said case clearly reflected that the employee therein was fully aware of the fraud being committed by her employer and she was also a beneficiary thereof which is clearly not the position in the present case.
28. At this stage, it would now be relevant to consider the CBI No. 20/11 46/124 role of the accused Alok Aggarwal in conspiring with his brother M.K. Aggarwal to cheat OBC and for having prepared and used fabricated invoices. The contention of the defence with respect to this accused is that no evidence has been brought by the prosecution to prove the criminal intention of this accused to conspire with his brother accused M.K. Aggarwal or for having forged any invoices and that therefore he cannot be held guilty only on the premise that he was the Director of M/s Rohini Strips Ltd. which was the main beneficiary of the amount disbursed by OBC, more so when M/s Rohini Strips Ltd has not been arrayed as an accused by the investigating agency. Though this court completely agrees with the Ld Defence counsel Sh. Rajiv Khosla that this accused cannot be held guilty only for the reason that he is the younger brother of accused M.K. Aggarwal and is the Director of M/s Rohini Strips Ltd which was the beneficiary of the cheating committed by accused M.K. Aggarwal, in the considered opinion of this court, the following evidence brought on record by the prosecution sufficiently proves his mens rea in conspiring with accused M.K. Aggarwal to cheat OBC and in using forged invoices :
a) This court has already held that the invoices Ex.PW6/1 to Ex.PW6/4, Ex.PW35/B, Ex.PW35/B1 and Ex.PW35/B2 were all forged and fabricated invoices purportedly issued by PW36 in the name of M/s Rohini Strips Ltd on the instructions of the accused M.K. Aggarwal. Though the testimony of PW36 does not incriminate this CBI No. 20/11 47/124 accused Alok Aggarwal in the fabrication of these invoices, the evidence brought on record by the prosecution clearly shows that he used the said forged invoices in order to fraudulently induce OBC to release an amount of Rs. 50 lacs approximately in favour of M/s Rohini Strips Ltd. which he then used to clear the dues of M/s Rohini Strips Ltd. with SAIL. PW27 Sushil Kumar, the then Deputy Chief Officer of Bombay Mercantile Bank Ltd has interalia deposed that it was he who had dealt with the LC Ex.PW20/F which was issued by OBC on the application of accused A2 Company in favour of M/s Rohini Strips Ltd. He has further deposed that a representative of M/s Rohini Strips Ltd had submitted with his bank the said LC alongwith documents attached therewith for discounting. Now the documents interalia attached with this LC are the copies of invoices Ex.PW6/1 to Ex.PW6/4, Ex.PW35/B, Ex.PW35/B1 and Ex.PW35/B2 and a letter addressed to Bombay Mercantile Cooperative Bank Ltd (D175) which is signed by this accused. PW27 has specifically deposed before the court that all the documents pertaining to this LC have been certified to be correct and true by him - the entire file containing the aforementioned documents handed over by this witness to the IO during investigation has also been exhibited as Ex.PW27/L and admittedly the accused Alok Aggarwal has not questioned the fact that he had addressed the letter D175 to the Bombay Mercantile Co operative Bank Ltd. The said facts do infact clearly prove that this CBI No. 20/11 48/124 witness knowingly submitted these forged documents with Bombay Mercantile Cooperative Bank Ltd. for purposes of discounting and the said bank then forwarded these forged documents to OBC for further discounting.
b) The other circumstance proved on record which proves the connivance of this accused with accused M.K. Aggarwal is the fact of him issuing the cheque dated 25.8.1998 Ex.PW39/T2 for an amount of Rs. 45 lacs in favour of SAIL when admittedly as on this date there was a negligible balance in the account of M/s Rohini Strips Ltd which is apparent from the statement of bank account of this company in PNB, Ex.PW39/O1. It is being rightly contended by the prosecution that the said cheque was issued by this accused despite there being no balance in the account of M/s Rohini Strips Ltd because he was very well aware that before the cheque is presented for clearing such an amount would be credited to the account of M/s Rohini Strips Ltd on account of the second LC issued in favour of M/s Rohini Strips Ltd on the basis of the aforementioned forged invoices. Infact such an amount was credited in the account of M/s Rohini Strips Ltd. on 26.8.1998 by Bombay Mercantile cooperative Ltd vide voucher Ex.PW39/T1, on account of the second LC issued by OBC in favour of M/s Rohini Strips Ltd. and clearly it was this amount which resulted in the honouring of the cheque Ex.PW39/T2 and for clearing the dues of M/s Rohini Strips Ltd. with SAIL. It is interesting to note that when CBI No. 20/11 49/124 this incriminating fact was put to this accused u/s 313 Cr.P.C, he neither denied the issuance of the cheque nor the fact that there was negligible balance in the account of M/s Rohini Strips Ltd. His only explanation was that M/s Rohini Strips Ltd used to purchase raw material for the cold rolled coils / sheets from SAIL against credit / PDCs and on many occasions to cut short the time required to make payments, the purchaser used to directly make payment to SAIL on behalf of M/s Rohini Strips Ltd. Ld Defence counsel Sh. A.K. Roy for this accused was at pains to explain during the course of final arguments as to how the said explanation can be even considered to be a plausible defence for him issuing a cheque on 25.8.1998 in favour of SAIL without there being any substantial balance in the account of M/s Rohini Strips Ltd. unless he was aware that before this cheque is presented for clearing, this amount would be credited in the account of M/s Rohini Strips Ltd. on the basis of the forged invoices submitted by him and accused M.K. Aggarwal for discounting of the second LC.
29. The aforementioned facts, in the considered opinion of this court, are clearly sufficient to hold this accused guilty of conspiring alongwith accused M.K. Aggarwal to cheat OBC to the extent of Rs. 50 lacs and in pursuance thereof using forged invoices as genuine knowing fully well that the same were forged and fraudulently inducing OBC to release an amount of Rs. 50 lacs on the basis of the said bogus invoices.
CBI No. 20/11 50/12430. The contention of the Ld Defence counsel Sh. Khosla that this accused cannot be held guilty despite the evidence proved against him as the investigating agency failed to array and prosecute M/s Rohini Strips Ltd. cannot at all be upheld for such a proposition has never been laid down by any of the Superior courts. Though the proposition that a corporate entity is an artificial person which acts through its officers, directors, managing director, chairman etc. and if a person or a group of persons who control the affairs of a company commit an offence with the criminal intent, their criminality can be imputed to the company, is well laid down there is no law which provides that in case the company is not prosecuted, even the said person or group of persons controlling its affairs cannot be held liable. Ld. PP Ms. Shashi has rightly relied upon the judgment of the Hon'ble Supreme Court pronounced in the case titled and reported as Anil Hada Vs Indian Acrylic Ltd. 1999 SUPP (5) SCR 6 to contend that the prosecution of M/s Rohini Strips Ltd. was not at all necessary for the prosecution to chargesheet this accused. In the said judgment the Hon'ble Supreme Court has clearly held that a conniving officer of a company may individually be prosecuted without the company being prosecuted. No doubt the said observations have been made by the Hon'ble Supreme Court in the context of the provisions of Negotiable Instruments Act, the underlying principle laid down is that the failure to prosecute a company does not make the prosecution of its conniving CBI No. 20/11 51/124 officers bad in law.
31. The next very material and important circumstance proved on record which reveals the intention of these accused persons to siphon the funds released in favour of accused A2 Company to clear the dues and liabilities of M/s Rohini Strips Ltd. is the applying of the accused A2 Company with OBC for a pay order in favour of SAIL on the pretext that accused A2 Company had purchased some steel products from SAIL and payment had therefore to be made to it, though no such transactions had been made by accused A2 Company. Admittedly, the accused M.K. Aggarwal on behalf of accused A2 Company had issued a cheque dated 31.8.1998 in the amount of Rs. 29,00,500/, Ex.PW20/G in favour of OBC and had requested the bank to issue a pay order in favour of SAIL for the said amount on the pretext that accused A2 Company was required to pay the said amount to SAIL on account of steel purchased by it from SAIL. It is also an admitted fact that the said amount was however adjusted by SAIL to clear the dues and liabilities of M/s Rohini Strips Ltd. and not against any account of accused A2 Company. The issuance of the said cheque and pay order and the fact of SAIL adjusting the pay order amount against the dues of M/s Rohini Strips Ltd. is not being disputed by accused M.K. Aggarwal at all. When the said cheque and the pay order was put to the accused u/s 313 Cr.P.C he had admitted the issuance of the same and had sought to explain that though accused CBI No. 20/11 52/124 A2 Company had no direct transactions with SAIL, it used to purchase cold rolled coils/sheets from M/s Rohini Strips Ltd. which in turn used to purchase raw material for the said coils from SAIL on regular basis and on many occasions to cut short the time required to make payments, accused A2 Company used to directly make payment to SAIL on behalf of M/s Rohini Strips Ltd. for the raw material purchased by them from SAIL. Though it has been sought to be contended by Ld Defence counsel Sh. Khosla that the same explanation was also tendered on oath by accused u/s 315 Cr.P.C and that therefore the same should be believed by this court, I am afraid that the same cannot be accepted for no evidence has been brought by the accused in support of this defence. The transactions of purchase of steel by accused A2 Company from M/s Rohini Strips Ltd. and for which the said payment was got adjusted from SAIL were in the exclusive knowledge and possession of accused A2 Company and its Managing Director accused M.K. Aggarwal and Alok Aggarwal, the Director of M/s Rohini Strips Pvt Ltd and therefore it was their duty to have produced the same. In the absence of the production of the same clearly an adverse inference is to be drawn that there were no such transactions between the accused A2 Company and M/s Rohini Strips Ltd. for which accused A2 Company had to make a payment of about Rs. 29 lacs to SAIL and that therefore clearly the amounts released by OBC in favour of accused A2 Company were siphoned off to clear CBI No. 20/11 53/124 the debts of M/s Rohini Strips Ltd.
32. In the considered opinion of this Court the entire set of circumstances proved and discussed herein above are forming a complete chain of events from which the only conclusion that can be drawn is that the accused M.K.Aggarwal and Alok Aggarwal in conspiracy with each other cheated OBC by fraudulently inducing it to release credit facilities in favour of accused A2 Company on the basis of forged and fabricated invoices. Accused A2 Company is also to be held guilty on the said counts for as explained by the Hon'ble Supreme Court in its judgment dated 09th January'2015 pronounced in the Crl. Appeal No. 34 of 2015 in the case titled as Sunil Bharti Mittal Vs. CBI, that if a person or a group of persons who control the affairs of the company commit an offence with a criminal intent, their criminality has to be imputed to the company as well. It is worthwhile to mention that Ld. Defence Counsel Sh. Khosla has strenuously contended before this court that the prosecution has not been able to sufficiently prove all the aforementioned circumstances and therefore its case beyond all reasonable doubt and that this Court cannot on the basis of the weakness of Defence hold the accused guilty. His contention is that the arguments raised by him during final arguments, if not the crossexamination of the witnesses, clearly create doubt with respect to the circumstances proved on record by the prosecution and that therefore this court should grant the benefit CBI No. 20/11 54/124 of doubt to the accused M.K. Aggarwal. In the considered opinion of this court the contention being made by the Ld Defence Counsel cannot be upheld for though there can be no doubt about the proposition that it is the prosecution who has to always prove its case against all reasonable doubt, it is not any imaginary doubt beyond which the prosecution is required to prove its case. The case of the prosecution has to be examined in the context of the defence raised by an accused and if the accused himself does not raise any defence whatsoever during the examination of witnesses and does not question the evidence led by the prosecution, the Court is not then bound to conjecture a defence only on the basis of the submissions made during final arguments. As regards the reliance of Ld counsel Sh. Khosla on the orders of quashing of criminal proceedings by the Hon'ble Delhi High Court in the cases of Joginder Singh Logani and Sanjay Bhandari (supra - judgments relied upon by the Ld counsel) in cases of the settlement reached between the accused persons and the bank therein, suffice is to state that this court has only the jurisdiction to decide whether the accused herein have been guilty of the offences of cheating and forgery and does not have the jurisdiction to quash the proceedings or to acquit the accused on the basis of the settlement reached between him and the Bank. Admittedly there has been loss caused to the Bank despite the accused A2 Company paying the amount agreed to in the OTS Scheme and therefore it cannot be CBI No. 20/11 55/124 accepted that no offence of cheating is made out because there was no loss to the bank. Further as pointed out by Ld PP the Hon'ble Supreme Court has categorically held in Vikram Anant Rai Doshi's case (supra - judgment relied by Ld PP) that merely because a settlement is reached between the bank in question and the borrowers, the same does not exonerate the borrowers from the crimes of financial fraud.
33. In view of the detailed discussion herein above the accused persons M.K. Aggarwal, Alok Aggarwal and the accused A2 Company are thus to be held guilty for having committed the offences punishable under section 420 IPC, 471 IPC and section 120B IPC. Accused M.K. Aggarwal and accused A2 Company have also to be held guilty for the offence punishable under section 468 IPC.
34. Coming next to the role of accused Ramesh Goel, the allegations against him in the chargesheet are that he being the proprietor of M/s Hind Steel Sales conspired with accused M.K. Aggarwal to enable this accused to avail from OBC, Letter of Credit facilities to the tune of Rs. 50 lacs in favour M/s Hind Steel Sales on the basis of forged and fabricated invoices/delivery challans and lorry receipts. Ld PP Ms. Shashi has submitted that though no transactions of sale of steel products was done by this accused in favour of accused A2 Company, he prepared forged and fabricated invoices Ex.PW 35/H1 to H24 corresponding to the forged and fabricated lorry CBI No. 20/11 56/124 receipts/builties Ex.PW1/1 to Ex.PW1/16 got prepared by accused M.K. Aggarwal, thereby fraudulently inducing OBC to release credit facilities to the tune of about Rs. 50 lacs in favour of accused A2 Company. She has pointed out that to prove that builties/lorry receipts Ex.PW1/1 to Ex.PW1/16 were forged and fabricated by accused M.K. Aggarwal, the prosecution has examined apart from PW15 and PW 36, PW1 Shiv Shankar Singh, the proprietor of M/s AgraGwalior Road Lines and PW2 to PW5, PW7, PW11,PW13, the owners of the vehicles whose numbers are reflected in the said builties. Ld. PP has further pointed out that the deposition and report of the Assistant Government Examiner of Questioned Documents, Government Of India, Chandigarh who has been examined as PW35 has clearly proved that accused Ramesh Chand Goel had written and prepared the invoices/bills/delivery challans namely Ex.PW35/H1 to Ex.PW 35/H24. She has pointed out that as per the reports of this witness Ex.PW35/D and Ex.PW35/M it is this accused only who had written the numbers of the trucks on the delivery challans in question and her submission is that since the said trucks were never used in the transportation of any material from M/s Hind Steel Sales to accused A 2 Company, the writing of the registration number of these trucks by this accused on the delivery challans in question not only proves that he had prepared forged documents but also that he had conspired and connived with accused M.K. Aggarwal in cheating OBC and CBI No. 20/11 57/124 fraudulently inducing it to issue Letter of Credit in favour of his firm namely M/s Hind Steel Sales.
35. In rebuttal, Ld counsel Sh. R.N. Vats on behalf of this accused has submitted that the reports submitted by PW35 do not incriminate this accused at all and the same do not at all prove that it is this accused who had issued fake lorry receipts. Ld counsel has pointed out that PW35 in his crossexamination has admitted that he had not examined the handwriting of all the contents of the invoices/bills/delivery challans in question and this according to him is to be interpreted to mean that this witness has not given any opinion on the writing of the truck numbers in question. It is also the contention of Ld counsel Sh. Vats that as per the agreement entered between accused A2 Company and M/s Hind Steel Sales, the steel was sold by M/s Hind Steel Sales to accused A2 Company on ex godown basis i.e it was the accused A2 Company which was to take delivery of steel from the godown of M/s Hind Steel Sales and therefore the accused Ramesh Chand Goel, the Managing Partner of this firm had nothing to do with the trucks employed by accused Mahender Aggarwal on behalf of accused A2 Company to take delivery of the steel. The contention therefore is that prosecution has miserably failed to prove that this accused had acted in connivance with accused M.K. Aggarwal in cheating OBC or that he had got prepared forged and fabricated bills/invoices/delivery challans.
CBI No. 20/11 58/12436. Most of the contentions made by Ld counsel Sh. Rajiv Khosla on behalf of accused M.K. Aggarwal in respect of these invoices have already been spelt out in the preceding paragraphs while determining the guilt of accused M.K. Aggarwal and therefore are not being repeated here. In addition to the said contentions Ld counsel Sh. Khosla has also pointed out that this court must take into account that PW1 in his cross examination has admitted that he cannot state whether any consignments were actually transported or not and therefore the contention is that even if it is to be accepted that PW36 had filled the builties Ex.PW1/1 to Ex.PW1/16 on the instructions of accused M.K. Aggarwal, even then it cannot be ruled out that the transportation of steel produced from M/s Hind Steel Sales to accused A2 Company did infact take place as reflected in the said builties, more so when none of the owners of the truck examined by the prosecution have been able to conclusively prove that they had not transported any steel material from M/s Hind Steel Sales to accused A 2 Company.
37. Dealing first with the contentions of Ld counsel Sh. Vats on behalf of accused Ramesh Chand Goel namely that the reports submitted by PW35 do not incriminate this accused at all and that PW35 has not given any opinion in respect to the writing of truck numbers on the bills/delivery challans, this court finds that the same has no merit at all. To appreciate the contention of Ld counsel Sh.
CBI No. 20/11 59/124Vats it is necessary herein to reproduce the statements made by PW35 in his crossexamination on which reliance is been placed by Sh. Vats :
I have not given opinion with respect to the portion reflected in blue colour in Ex.PW35/H1, H 2, H3, H4, H5, H6 and H7.
It is incorrect to suggest that on Ex.PW35/H15 to H17 the truck number and challan number are not in the handwriting of Sh. Ramesh Goel. Vol. (I in my opinion had opined that this truck number and challan number on these exhibits are written by Ramesh Goel after comparing the same with the specimen, handwriting and signature of Sh. Ramesh Goel.
I have not given opinion with respect to the truck number and the challan number mention on Ex.PW35/H18 to H24.
Now the aforementioned statements are being relied to contend that since the expert has admitted that he did not examine and give his opinion with respect to the portions in which the truck numbers are mentioned in Ex.PW35/H1 to Ex.PW35/H7, Ex.PW35/H18 to Ex.PW35/H24, he would not have even examined the said portions in the remaining exhibits also and that he has falsely deposed that the truck numbers in the remaining exhibits on examination were found to be in the handwriting of the accused Ramesh Goel. The deposition of PW35 reveals that vide Ex.PW35/G dated 2.9.2003 the documents CBI No. 20/11 60/124 Ex.PW35/H1 to Ex.PW35/H27 were sent by the investigating agency to the Government Examiner of Questioned Documents, Government Of India, Chandigarh with a request that the questioned handwriting marked as Q26 to Q83 encircled with red pencil be examined and compared with the specimen handwriting of the persons namely Ramesh Goel, Alok Aggarwal, Mahender Aggarwal and Ramesh Chand Aggarwal. PW35 vide his report Ex.PW35/M opined that it is Ramesh Goel who has written the red enclosed writings and signatures marked Q26 to Q49, Q58, Q60, Q62, Q64, Q78, Q80. Now Q26 to Q32 are the bills, and Q33 to Q49 are the delivery challans that have been exhibited as Ex.PW35/H1 to Ex.PW35/H8 and Ex.PW35/H9 to Ex.PW35/H24 respectively. It is pertinent to take note that in the bills Ex.PW35/H1 to Ex.PW35/H8 the portion in which the truck numbers was written was not included in the encircled portion by the IO and therefore there was no occasion for the expert PW35 to give his opinion about the same. Similarly is the case with the delivery challans Ex.PW35/H18 to Ex.PW35/H24. It is only on the delivery challans Ex.PW35/H8 to Ex.PW35/H17 that the encircled portion to be examined included the portion containing the truck numbers and therefore in such circumstances the expert was called upon to only examine the handwriting in which the truck numbers were written on Ex.PW35/H8 to Ex.PW35/H17, which he did so and categorically opined that the same were in the handwriting of the accused Ramesh CBI No. 20/11 61/124 Goel only. It is quite apparent to the naked eye that the portions containing the truck numbers in the remaining exhibits are not in the same ink as the remaining portions of the said exhibits and therefore apparently the investigating officer did not choose to include them in the encircled portion to be examined by the expert. However in the exhibits Ex.PW35/H8 to Ex.PW35/H17 the portion containing the truck numbers is in the same ink as their remaining contents and therefore the opinion of the expert was sought with respect to the same. In such facts the expert PW35 was completely justified to state in his crossexamination that he had not given his opinion with respect to the portion containing the truck numbers in Ex.PW35/H1 to Ex.PW35/H7 and Ex.PW35/H18 to Ex.PW35/H24. The said statement cannot at all be read to infer that the expert had not even examined the portion containing the truck numbers on Ex.PW35/H8 to Ex.PW35/H17 and therefore the contention of Ld counsel in this regard is to be absolutely rejected.
38. However having held so this court does agree with the defence that the evidence led on record by the prosecution to prove that no transaction of steel purchase and delivery had taken place between M/s Hind Steel Sales and accused A2 Company has certain discrepancies, the benefit of which will have to be given to the accused Ramesh Chand Goel for none of the transporters of the truck whose numbers are reflected in the invoices in CBI No. 20/11 62/124 question and who have been examined by the prosecution as PW2 to PW5, PW7, PW11, PW13 have been able to conclusively prove that they had not transported any steel material from M/s Hind Steel Sales to accused A2 Company.
39. Though it has been rightly contended out by Ld PP that the aforementioned truck owners could not have proved a fact in negative, this court ignore the fact that though all of them in their examination in chief have deposed that their trucks were never engaged by M/s Agra Gwalior Roadlines to transport any goods from M/s Hind Steel Sales to accused A2 Company, most of these witnesses have admitted in their cross examination that they were directly not in charge of the affairs of their trucks. To cite a few instances - PW2 Satender Dev though in his examinationinchief has categorically stated that his vehicle bearing no. DL1G9108 was never engaged in the year 1998 to transport any goods from M/s Hind Steel Sales to accused A2 Company, he admits in his crossexamination that he was not looking after the daytoday affairs of the vehicle till the year 2001 and that till the said year it was his brother who was doing so. Similarly though PW3 Mahavir Pd Gupta has stated in his examinationinchief that his vehicle bearing no. DL1G9756 has never transported any material from M/s Hind Steel Sails to accused A2 Company, he admitted in his crossexamination that it is his sons who used to maintain the record with respect to the truck in question. In view of the above their CBI No. 20/11 63/124 testimony cannot be held to be of that standard on the basis of which it can be conclusively held that their trucks were not used for the transportation of steel from M/s Hind Steel Sales to accused A2 Company. PW4 has interalia deposed that he is the manager of a firm namely M/s Roll Mill Industries, Shahdara and that vehicle belonging to the said firm was in the name of Mrs. Chanchal Kathuria and that only on the basis of the fact that the said vehicle was a small truck, he can state that the said truck could not have been used for transportation of the steel consignment reflected in builty Ex.PW1/4. PW9 is Chanchal Kathuria and she states that it is her husband who was the partner in the aforementioned firm and that she had merely heard from her husband that the vehicle was a mini truck. PW5 Ashok Kumar has also admitted in his crossexamination that his vehicle bearing no. DHL 7628 during the year 1998 was not completely under his control. This witness infact also admits that he had on some occasions transported steel material of M/s Hind Steel Sales though according to him that was after the year 1998. He has also stated in his cross examination that during the investigation of the present case the CBI officials had told him that 2022 tonnes of some material had been stolen and that his vehicle was suspected to be involved in the said theft - in such view the defence is right in contending that the testimony of this witness does not inspire much confidence.
40. In view of such statements made by the transporters and CBI No. 20/11 64/124 the statement made by PW1 that he cannot confirm whether the transportation of steel material had taken place or not and that he can only confirm that the lorry receipts were not filled in my him, in the considered opinion of this court it cannot be conclusively held that the transactions of sale of steel reflected in the aforementioned invoices and builties were all together fabricated and therefore the benefit of doubt in this respect will have to be given to accused Ramesh Chand Goel, more so when the prosecution has not been able to show the complete trail of money paid to him by OBC back to accused A2 Company (Admittedly there is only one cheque Ex.PW39/J3 for Rs. 6 lacs issued by this accused in favour of accused A2 Company after receiving the payment in respect of the LC). Though the facts and circumstances brought on fore during trial do give rise to a suspicion that this accused may have actually supplied steel to M/s Rohini Strips Ltd. and for receiving the payments due from it, he may have agreed to conspire with accused M.K. Aggarwal to prepare invoices in the name of accused A2 Company, the said aspect not having been investigated remains in the realm of suspicion only.
41. It is made clear that the above observations of this court do not at all effect the finding of this court that it was PW36 who had filled the builties, Ex.PW1/1 to Ex.PW1/16 on the asking of accused M.K. Aggarwal. The only benefit of doubt that this court has given with respect to these builties is that since the testimony of the CBI No. 20/11 65/124 transporters unlike that of PW 6, is not conclusively leading to the inference that no consignment of steel was transported from the godown of this accused to that of accused A2 Company, there could be a possibility that the transactions reflected in the said builties and invoices Ex.PW35/H1 to H24 prepared by this accused Ramesh Chand Goel had taken place. Clearly this benefit of doubt is not available in case of the invoices Ex.PW6/1 to Ex.PW6/4 for it is to be borne in mind that the invoices Ex.PW35/H1 to H24 were prepared by the consignor Ramesh Chand Goel himself unlike the invoices Ex.PW6/1 to Ex.PW6/4 which PW36 has clearly deposed were fabricated by him on behalf of the purported consignor M/s Rohini Strips Ltd., on the asking of accused M.K. Aggarwal.
42. Coming now to the role of accused Suresh Chand Malik, the contention of the Ld. PP is that he deliberately in connivance with the accused M.K.Aggarwal over valued the farm house consisting of 6 bighas in village Rajokri, Tehsil Vasant Vihar and reported its market value to be Rs.2,78,20,800/ though the evidence produced by the prosecution discloses that the value of 1 bigha in the area of village Rajokri, Tehsil Vasant Vihar in the year 1998 was approximately only Rs.23 lacs. The submission of Ld. PP is that this over valuation done by the accused S.C.Malik facilitated M.K.Aggarwal in obtaining the loan facilities to the extent of about Rs. 1 crore and that therefore this proves the active connivance of this accused with M.K.Aggarwal. Ld. CBI No. 20/11 66/124 PP has pointed out that during investigation the IO had collected three sale deeds of similar pieces of land in village Rajokri, Tehsil Vasant Vihar (appearing as annexures of D279 of the documents filed alongwith the charge sheet) from the then Sub Registrar, Kapashera Sh. Shanti Lal and the prosecution witness, PW22 M.S.Dagar, successor of Sh. Shanti Lal has confirmed that vide forwarding letter Ex. PW22/A (appearing at D279), Sh. Shanti Lal had supplied the IO Sh.P.K.Khanna the said sale deeds. She has submitted that a perusal of the said sale deeds executed in the year 2002 reveal that the rate of one bigha of agricultural land in Village Rajokri, Tehsil Vasant Vihar was only about Rs. 3 lacs. She has further pointed out that the very same farm house as mortgaged by A2 company in favour of OBC was sought to be sold by accused Ramesh Chand Aggarwal to one Rajinder Gupta in the year 2001 for about Rs.12 lacs only vide three sale deeds registered with the Sub Registrar, Kapashera and that the said sale deeds have been proved on record by Rajinder Gupta himself, who has been examined as PW16. She has further contended that the very fact that OBC could sell the said farm house during auction proceedings for only Rs.22 lacs also proves that the valuation of the farm house by the accused S.C.Malik at about Rs.2.78 Crores was absolutely baseless and done only to aid M.K.Aggarwal to fraudulently induce OBC to extend credit facilities to him.
43. Ld. Sr. Counsel Sh. Ajay Burman, on behalf of this CBI No. 20/11 67/124 accused has however contended that the evidence produced by the prosecution is not at all sufficient to conclude that the rates of 1 bigha of agricultural land in Village Rajokri, Tehsil Vasant Vihar was only about Rs. 3 lacs and that the accused S.C.Malik had deliberately in connivance with the accused M.K.Aggarwal over valued the farm house. He has submitted that there were no circle rates of agricultural property notified prior to the year 2007 and that therefore there is no material for the prosecution to contend that the rate of 1 bigha of agricultural land in village Rajokri, Tehsil Vasant Vihar was only about Rs.3 lacs in the year 1998. He has pointed out that the accused in his valuation report (part of document D24) had clearly reflected that he had arrived at the fair market value of the farm house on the basis of the inquiries made by him from the local property dealers and depending upon its location. He has further pointed out that the IO P.K.Khanna in his crossexamination has admitted that he had neither visited the land in dispute nor examined the owners of the adjacent lands nor examined any property dealer of the area to determine the market value of the farm house nor even had asked any other government approved valuer to determine the rates of the farm house. It has also been pointed out that though this IO sought to depose that he had collected the government rates from the Revenue Department, admittedly no such rates have been filed with the chargesheet. The contention therefore is that no investigation whatsoever was done to CBI No. 20/11 68/124 determine the fair market value of the farm house and that the sale deeds placed on record from the office of Sub Registrar, Kapashera cannot at all be made the basis of determining the fair market value of the farm house. Ld. Counsel has submitted that sale deeds can never be the true indicator of the actual sale price of a property for it is common practice to show less value of property in the registered sale deeds to avoid stamp duty. His contention is that if the value of a property is to be calculated from its sale deed then there would be no purpose of appointing valuers by banks. Thus according to him the sale deeds collected by the IO during investigation and placed before the court do not at all reflect the actual price of the agricultural land of Village Rajokri existing in the year 1998. In the alternative he has contended that if the prosecution is allowed to rely upon the sale deeds collected from Sub Registrar Kapashera then this court must also consider a sale deed produced by the accused in his defence. He has pointed out that the accused in his defence has also proved sale deed of an agricultural piece of land of village Samalkha, Tehsil Vasant Vihar, Ex. DW3/A which reveals that 43 bighas of the said land was sold for Rs. 16 crores in the year 2000. His contention is that village Samalkha is adjacent to village Rajokri in the same Tehsil Vasant Vihar and that therefore the said sale deed Ex. DW3/A should be relied upon by this court to infer that the valuation done by S.C.Malik of 6 bighas of agricultural land in village Rajokri at Rs.2.78 crores was fair and not CBI No. 20/11 69/124 over valued. He has further contended that the mere fact that the farm house was sold by OBC in auction proceedings at Rs.22 lacs is hardly an indication of its fair market value for according to him properties in bank auction proceedings are usually sold at throw away prices for a variety of reasons. It has also been contended by Ld. Counsel that there is not a shred of evidence produced by the prosecution apart from the valuation report to prove that the accused S.C.Malik had any meeting of minds with M.K.Aggarwal to aid him in cheating OBC and therefore the contention is that this accused is entitled to be acquitted.
44. In support of his contentions Ld counsel Sh. Burman has relied upon the following judgments :
Sudir Engineering Company Vs Nitco Roadways Ltd. 1995 (34) DRJ 86.
State of Haryana & Ors. Vs Manoj Kumar AIR 2010 SCC 1779.
Manoj Naik & Associates Vs Official Liquidator (2015) 3 SCC 112.
Mehrawal Khewaji Trust (Regd.) Faridkot & Ors. Vs State of Punjab & Ors. AIR 2012 SCC 2721.
Chindha Fakira Patila (D) Tr. Lrs. Vs Spl. Land Acquisition (2011) 10 SCC 787.
Nelson Fernandes & Ors. Vs Special Land Acquisition AIR CBI No. 20/11 70/124 2007 SCC 1414.
Thulasimani Ammal Vs Commissioner of Income Tax & Anr. (2000) 158 CTR Mad 5.
After carefully considering the aforementioned submissions and the record this court is of the considered opinion that this accused will have to be granted the benefit of doubt in view of the sale deed Ex DW3/A produced by him during defence evidence. This sale deed reflects that an agricultural property measuring about 43 bighas in village Samalkha, Tehsil Vasant Vihar was sold for an amount of 16 crores in the year 2000. Now admittedly Village Samalkha is adjacent to Village Rajokri in the same Tehsil Vasant Vihar and therefore it cannot be stated that it is being wrongly contended on behalf of this accused that if a property in an adjacent village in the same Tehsil could be sold at such a price, his valuation of the Farm House measuring 6 bighas at Rs. 2.78 crores cannot be stated to be so over valued so as to lead to an inference that he had connived with the accused M.K. Aggarwal to cheat the Bank. His contention that price of an immovable property depends upon various factors like its location, size, etc. stands fortified by the huge difference in the prices reflected in sale deeds Ex.DW3/A and those annexed by the investigating agency with D279. Further as pointed out by Ld. Defence counsel and admitted by the Ld. Prosecutor there were no circle rates notified CBI No. 20/11 71/124 for agricultural properties prior to the year 2007 and therefore the parties to a transaction of such a property prior to this year were absolutely at liberty to reflect any sale price in the sale deed without it being questioned by the SubRegistrar. In such view, in the considered opinion of this court the contention of the prosecution that it should be held that the farm house was over valued by this accused only because some sale deeds reflected a lower price of similar properties, cannot be upheld.
45. No doubt the fact that the Farm House was eventually auctioned only for Rs. 22 lacs by the Bank does raise a suspicion that this accused over valued its price, in the considered opinion of this court the contention of Ld. Counsel Sh. Burman that price obtained for a property at a Bank auction can hardly be stated to be indicative of its fair market value, cannot be negated outrightly. In Manoj Naik's case (supra - the judgment relied upon by the Ld Defence Counsel) the official liquidator had proposed auction of properties of a company in liquidation at very less prices. However when the revaluation of the said properties was done under the supervision of the Supreme Court the property fetched ten times the price quoted by the official liquidator and the Hon'ble Supreme Court made a telling remark namely that properties are sold for a song in the so called sales made in the proceedings under the provisions of the Companies Act 1956. The said observation of the Hon'ble Supreme Court is being rightly relied CBI No. 20/11 72/124 upon by Ld Senior counsel Sh. Burman to contend that even in bank auctions properties are sometimes sold at throwaway prices.
46. Further as pointed out by the Ld. Defence counsel the Investigating Officer PW 39 has clearly admitted in his cross examination that he had never visited the farm house in dispute nor examined the owners of the adjacent lands or any property dealer of the area - no evidence was therefore collected by the Investigating agency to controvert the report tendered by this accused to the effect that he had made enquiries from the aforementioned persons to arrive at his valuation. In the absence of the same, the prosecution cannot be allowed to contend that the valuation done by the accused was absolutely incorrect.
47. In view of the discussion herein above this court is of the considered opinion that the material brought on record by the prosecution is not sufficient enough to hold that this accused in connivance with accused M.K. Aggarwal had over valued the farm house and that he will have to be granted the benefit of doubt.
48. Next to be considered is the case of the accused Ramesh Chand Aggarwal. Ld. PP has submitted that the connivance of this accused with accused M.K. Aggarwal has been proved by the prosecution from the fact that he being the Managing Director of M/s Upkar Estates (P) Ltd. got a GPA executed on 14.5.1998 in favour of M.K. Aggarwal through one Vijender Singh, an Authorized Signatory CBI No. 20/11 73/124 of M/s Upkar Estates (P) Ltd. in respect of the farm house, authorizing accused M.K. Aggarwal to deal in any manner with the said farm house and that this act of the accused enabled the accused M.K. Aggarwal to mortgage the said farm house in favour of OBC in consideration of the grant of credit facilities in favour of A2 Company. She has submitted that it was this accused only who got the aforementioned GPA executed despite there being no resolution passed by the Company M/s Upkar Estates (P) Ltd authorising the execution of GPA in favour of M.K Aggarwal for he alone being the Managing Director of this Company could have made available to accused M.K. Aggarwal, the property documents of the farm house in the name of M/s Upkar Estates (P) Ltd. which facilitated M.K. Aggarwal to obtain credit facilities from OBC by depositing the said documents with OBC and creating an equitable mortgage on the farm house. According to Ld PP the connivance of this accused with M.K. Aggarwal is also apparent from the fact that he made the accused M.K. Aggarwal a Director in M/s Upkar Estates (P) Ltd. in July 1998 with the sole purpose of providing a Corporate Guarantee for the credit facilities being sought from OBC. She has submitted that Ex.PW 24/DX, the resolution signed by this accused being the Managing Director of M/s Upkar Estates (P) Ltd. inducting accused M.K. Aggarwal as a Director in M/s Upkar Estates (P) Ltd. and authorizing him to execute the Corporate Guarantee for the grant of credit facilities CBI No. 20/11 74/124 to accused A2 Company by OBC clearly proves that this accused was at all times acting in connivance with the accused M.K. Aggarwal in order to facilitate him in fraudulently obtaining credit facilities from OBC. She has also submitted that the documents Ex.PW16/A, B and C further prove the mensrea of this accused to cheat OBC. She has pointed out that vide these documents this accused sought to sell the farm house to one Rajender Gupta in the year 2001, despite being aware that he was not authorized to do so as the said farm house was mortgaged with OBC and that accused M.K. Aggarwal and accused no. 2 Company had defaulted in the repayment of the credit facilities.
49. In reply Ld counsel Sh. Sanjay Manchanda on behalf of this accused has vehemently contended that contentions of the Ld PP are without any merit for according to him not only has the prosecution failed to prove that the accused Ramesh Chand Aggarwal had got the said GPA executed but has even failed to prove the execution of the said GPA. He has pointed out that though a copy of the said GPA was given Ex.PW21/O5 when PW21 Mahender Singh, the then Manager of IFB branch of OBC deposed that the said document was seized by the IO from the bank records vide the seizure memo Ex.PW21/O, the said exhibition can in no manner give rise to an inference that the prosecution has proved the said document. He has contended that it is well settled law that endorsement of an exhibit number on a document is only for the purposes of identification and CBI No. 20/11 75/124 has no relation with its proof and in this regard he has relied upon the judgment pronounced by the Hon'ble Delhi High Court in the case titled and reported as Sudhir Engineering Company Vs Nitco Roadways Ltd. 1995 (34) DRJ 86. He has thus contended that in the absence of the prosecution examining the executant Vijender Singh of the said GPA the same cannot at all be read in evidence. As regards the availability of the property documents of the farm house with the accused M.K. Aggarwal Ld counsel Sh. Manchanda has pointed out that the accused Ramesh Chand has explained to this court in his statement tendered u/s 313 Cr.P.C that he has been in the business of sale / purchase of properties for the last many years and that in the year 1997 he had given M.K. Aggarwal the original documents of the farm house in question because M.K. Aggarwal had wanted to purchase the said farm house and usually in the case of properties the practice is to hand over the original documents to the intended purchaser for due diligence. Ld counsel has further pointed out that in the said statement this accused has also explained that he did not ask accused M.K. Aggarwal for the return of the said documents nor filed a criminal case against him for having cheated him for he had been introduced to him by Sh. Ratan Jindal with whom he had good business relations. As regards the passing of board resolution Ex.PW24/DX and inducting the accused M.K. Aggarwal as a Director in M/s Upkar Estates (P) Ltd. the explanation given by the Ld counsel is again that this accused CBI No. 20/11 76/124 in his statement u/s 313 Cr.P.C has explained that it was on the request of Sh. Ratan Jindal of the Jindal Group of Companies, personally known to this accused for last many years for many properties were purchased by the Jindal Group through him, that he had agreed to make the accused M.K. Aggarwal a Director in M/s Upkar Estates (P) Ltd. and to agree that M/s Upkar Estates (P) Ltd. would provide a Corporate Guarantee against the loan granted to M.K. Aggarwal by OBC. It has also been contended by Ld counsel Sh. Manchanda that no dishonest intention can be inferred from the act of this accused selling the farm house to Rajender Gupta in the year 2001 for this accused had no knowledge that the accused M.K. Aggarwal had mortgaged this farm house in favour of OBC at that particular stage and that it was only in the year 2002 when this accused appeared before the IO of this case in MarchApril 2002 that he was made aware of the said fact.
50. It is also the contention of Ld counsel Sh. Manchanda that none of the aforementioned circumstances being relied upon by the prosecution are sufficient to infer that this accused had cheated OBC of any amount. He has pointed out that in the FIR there was no role at all attributed to this accused in the fraudulent transactions done by accused M.K. Aggarwal and the bank in question at no point of time alleged that it has been cheated by this accused and therefore the submission is that in the absence of any allegations of cheating by the CBI No. 20/11 77/124 complainant bank, the IO could not have chargesheeted this accused merely on the basis that he was the Managing Director of the Company whose property was illegally mortgaged by the accused M.K. Aggarwal with OBC. In support of the said contentions Ld counsel has relied upon the judgments titled and reported as State of Madhya Pradesh Vs Sheetla Sahai & Ors. (2009) 8 SCC 617.
V.S. Murthy Vs State (CBI) 2013 (1) JCC 674.
VY Jose Vs State of Gujarat & Anr. (2009) 3 SCC 78.
It has been further contended by Ld counsel Sh. Manchanda that the prosecution also cannot take the aid of the offence of conspiracy in seeking to secure the conviction of this accused for the prosecution has not at all proved any chain of events from which the only conclusion of this accused having conspired with the other coaccused persons can be drawn. Ld counsel has submitted that it is well settled law that to prove the offence of conspiracy the prosecution is required to prove beyond all reasonable doubt, the incriminating circumstances, which form a complete chain of circumstances so as to prove the guilt of the accused charged with the offence of conspiracy. Ld counsel has referred to the following judgments to contend that the charge of conspiracy cannot be stated to have been proved against the accused R.C. Aggarwal in the present case :
State (NCT of Delhi) Vs Navjot Sandhu @ Afsan Guru (SC) 2005 (3) JCC 1404.CBI No. 20/11 78/124
Regina Vs Murphy (173 Eng. Reports 508) Anil Maheshwari & Ors. Vs CBI 2013 (136) DRJ 249.
Esher Singh Vs State of A.P 2004 (11) SCC 585 Subramanian Swamy Vs A. Raja (2012) 9 SCC 257 P.K. Narayanan Vs State of Kerala 1995 (1) SCC 142.
CBI Vs K. Narayana Rao 2012 (9) SCC 512.
John Pandian Vs State 2011 (1) JCC 193.
State of Kerala Vs P. Sugathan & Anr. (2000) 8 SCC 203.
V.C. Shukla Vs State 1980 (2) SCC 665 Kehar Singh Vs State AIR 1988 SC 1883
51. In addition it has also been submitted by Ld. Counsel Sh. Manchanda that in the absence of the prosecution arraying the company M/s Upkar Estates Pvt. Ltd., this accused could not have at all been chargesheeted.
52. In rebuttal Ld. PP Ms. Shashi, to contend that it was not at all necessary for the prosecution to have chargesheeted the company M/s Upkar Estates Pvt. Ltd., has relied upon the following two judgments of the Hon'ble Supreme Court titled and reported as :
CBI No. 20/11 79/124 Anil Handa Vs. Indian Acrylic Ltd. 1999 Supp (5) SCR 6.
Sheoratan Aggarwal and Another Vs. State of Madhya Pradesh AIR 1984 SC1824.
53. I have carefully considered the submissions of both the Ld. PP and the Ld. Defence Counsel. In the considered opinion of this Court the preliminary objection of Ld. Counsel Sh. Manchanda that this accused could not have been chargesheeted at all in the absence of M/s Upkar Estates Pvt. Ltd. being arrayed as an accused has no merit for it is apparent from the chargesheet itself that the allegations of having entered into a conspiracy with the other accused persons to cheat OBC and in pursuance thereof to have cheated the said Bank are against this accused in his individual capacity only. Coming now to his contentions on merits, after carefully perusing the entire evidence on record this Court does agree that no separate charges for the offence of cheating the Bank are proved against this accused for no evidence has been brought on record to show that this accused had himself in any manner fraudulently induced the bank to do any act which caused a loss to the Bank. It is not the case of the Prosecution that the Corporate Guarantee given by his company was invoked by OBC and not honored. The General Power of attorney, Ex PW20/O5 referred to Ld PP also does not record that this accused being the Managing Director of M/s Upkar Estates Pvt. Ltd. had authorized any Vijender Singh to execute the said attorney in favour of CBI No. 20/11 80/124 M.K. Aggarwal infact the prosecution has not even bothered to examine Vijender Singh or the concerned Sub Registrar to prove the execution of this document and therefore it is being rightly contended by Ld. Counsel Sh. Manchanda that the said document cannot be ready in evidence. In such facts it has to be held that no separate offence of cheating the Bank can be said to be proved against this accused.
54. However having said so it still needs to be examined whether he can be held guilty of the substantive offence of having entered into a conspiracy with accused M.K. Aggarwal for cheating the Bank the prosecution has proved on record certain circumstances on the basis of which it is being contended that an inference be drawn that this accused had conspired with accused M.K.Aggarwal to cheat the Bank and the question to be determined now is whether the said circumstances form a chain of events from which the only irresistible conclusion about the guilt of this accused can be safely drawn and no other hypothesis against his guilt is possible.
i) Now the first of the said circumstances proved on record is that this accused in July'1998 made the accused M.K.Aggarwal a Director in M/s Upkar Estates Pvt. Ltd. with the sole intention that the said company could then provide a corporate guarantee for the grant of credit facilities in favour of A2 Company by the Bank. The Board Resolution signed by this accused being the Managing Director of M/s Upkar Estates Pvt. Ltd. inducting accused M.K.Aggarwal as a Director CBI No. 20/11 81/124 in the said company and authorizing him to execute the corporate guarantee for the grant of credit facilities to accused A2 company has been proved as Ex. PW24/DX. Further this accused in his statement tendered u/s 313 Cr.PC has clearly admitted that he had got passed the said resolution to facilitate accused M.K.Aggarwal to obtain credit facilities from the Bank.
ii) The second circumstance proved on record is the fact that the original ownership documents of the Farm house were handed over by this accused to accused M.K.Aggarwal which enabled M.K.Aggarwal to offer to create an equitable mortgage with respect to the Farm house in favour of the Bank in consideration of the Bank granting him credit facilities. Though as stated herein above Ld. Counsel Sh. Manchanda may be right in contending that the prosecution has failed to prove the power of attorney with respect to the Farm house,was purportedly executed by an authorized representative of M/s Upkar Estates Pvt. Ltd. in favour of accused M.K.Aggarwal, it cannot be disputed that the original ownership documents with respect to the Farm house were deposited by accused M.K.Aggarwal with the Bank and it has to be borne in mind that the accused Ramesh Chand Aggarwal has admitted that he had handed over the said documents to accused M.K.Aggarwal.
iii) The third circumstance proved on record is that in March'2001, i.e. after the account of A2 company had become NPA, this accused attempted to sell the Farm house to PW16 Rajinder Gupta despite CBI No. 20/11 82/124 being aware that the Farm house was mortgaged with the Bank. This witness in his deposition has stated that he had purchased the Farm house from the accused Ramesh Chand Aggarwal vide the sale deeds Ex. PW16/A, Ex. PW16/B & Ex. PW16/C, all dated 14.03.2001 and that at the time of the execution of the said sale deeds the accused Ramesh Chand Aggarwal had not handed over the ownership documents of the said Farm house. Though it is being contended on behalf of this accused that he had given the ownership documents of the Farm house to accused M.K Aggarwal only for due diligence and that in March'2001 he had no knowledge that the Farm house stood mortgaged with the Bank and that the loan account of M.K.Aggarwal had become NPA, the said contention cannot be accepted for it is totally absurd for a property dealer to hand over the original documents of a property for such a purpose when the same can be easily achieved by giving the photocopies thereof. It is also inconceivable that even at the time of selling the farmhouse he did not bother to ask for them or took no action to get them back only because at the time of registration of sale deed of an agricultural property, it is revenue records which are got verified -though the SubRegistrar may not want to go through such documents, no purchaser would buy a property without having in his possession, the complete chain of the ownership documents of the property. Thus this court is of the opinion that this accused did have the knowledge that the farmhouse stood CBI No. 20/11 83/124 mortgaged with the Bank.
55. Having said so this Court however does accept the contention of the Defence that even if all the aforementioned circumstances are taken to be established they do not give rise to the irresistible inference that this accused was in conspiracy with the other accused persons to cheat OBC. This is so because if this accused was ad idem with the accused M.K.Aggarwal for cheating the Bank, it does not appeal to common sense that he would have agreed to his company M/s Upkar Estates Pvt. Ltd. furnishing a bank guarantee for the repayment of loan / credit facilities by accused A2 Company. There is absolutely no reason as to why this accused would knowingly take the risk of exposure if he was already aware that accused M.K.Aggarwal on behalf of A2 Company had no intentions of repaying the loan / credit facilities to the Bank. The reasons for him having handed over original documents to accused M.K. Aggarwal could also be the one furnished by this accused M.K. Aggarwal in his statement tendered under section 315 Cr. P.C. In the said statement this accused has interalia stated that he had purchased an agricultural land in village Rajokari, in the name of his company i.e. A2 company from accused Ramesh Chand Aggarwal and that he had wanted to mortgage the said land at the time of applying for the loan with OBC but that when he approached the concerned Patwari for the mutation entry for the said land, as required by the Bank, he was informed that CBI No. 20/11 84/124 the mutation still stood in the name of Ramesh Chand Aggarwal as the consolidation proceedings were not complete. As per this accused he then approached this accused Ramesh Chand Aggarwal who agreed to offer him another land in exchange belonging to his company M/s Upkar Estates Pvt. Ltd., namely the Farm House in question and that is how the original ownership documents of the said Farm House were handed over by this accused Ramesh Chand Aggarwal to him. The said statement of accused M.K. Aggarwal does give rise to a hypothesis against the guilt of accused Ramesh Chand Aggarwal with respect to the offence of conspiracy. The fact of this accused attempting to sell the Farm House despite being aware that it stood mortgaged with OBC could also be due to his own anxiety as a property dealer to free his property from the Bank recovery proceedings rather than him attempting to facilitate the accused M.K. Aggarwal in cheating the Bank.
56. In view of the discussion herein above, in the considered opinion of this court, though the circumstances proved by the prosecution to give rise to a grave suspicion against the accused Ramesh Chand Aggarwal, they do not form a chain of events from which the only irresistible conclusion about the guilt of this accused can be safely drawn and therefore in view of the judicial dicta relied upon by the Ld. Counsel Sh. Manchanda, in particular the judgment pronounced by the Hon'ble Supreme Court in the case titled as State CBI No. 20/11 85/124 Vs. Navjot Sandhu (supra), this accused has to be given the benefit of doubt.
57. Coming finally now to the role of the two public servants namely accused 7 G.K. Dhawan and accused 8 Vipin Jain, Ld PP Ms. Shashi has interalia made the following contentions :
a) the prosecution has led sufficient evidence to prove that both of them, in complete contravention of the guidelines laid down in the Advance Loan Manual of the bank Ex.PW24/DZ2 and the guidelines issued by the Head Office that finance to steel sector was to be discouraged, recommended the grant of Credit facilities to accused no.
2 Company for starting a new venture in the Steel sector without even verifying the credentials, track record and reputation of accused M.K. Aggarwal and A2 Company in the market and despite the fact that accused M.K. Aggarwal was not known to the bank.
b) the fact that the accused Vipin Jain himself wrote the letter, Ex. PW20/B recommending the loan proposal of the A2 company instead of using the prescribed printed format shows his personal interest in the said loan proposal and the fact that when the Regional Office asked for certain clarifications regarding the said proposal, both accused 7 and 8 instead of answering the clarifications/queries made merely forwarded the reply of accused Mahender Kumar in the said respect shows their connivance with the said accused.
c) in their recommending letter Ex. PW20/B both these accused CBI No. 20/11 86/124 persons deliberately reflected an inflated projected turnover of the A2 Company and incorrectly calculated the Minimum Permissible Bank Finance (MPBF) and Net Working Capital (NWC) of A2 Company with the intention to get the credit facilities sanctioned in its favour.
d) despite being aware that no board resolution had been passed by M/s Upkar Estates Pvt. Ltd authorizing accused M.K. Aggarwal to mortgage the farm house in favour of OBC, they intimated the Regional Office that since the original documents of the farm house had been submitted at the branch, the farm house could be considered as a security against the recommended credit facilities.
e) they disbursed the credit facilities in favour of accused A2 Company without complying with two of the sanction conditions imposed by the Regional Office namely that the audited balancesheet of accused A2 Company for the year 199798 was not asked for and the charge on the assets of accused A2 Company was also not got registered with the ROC before the release of credit facilities. It has been pointed out that the fact that PW20 P.C. Sood in his deposition clearly stated that he had written the letter dated 16.9.1998, Ex.PW20/I to accused Company asking them to furnish their audited balancesheet for the year 199798 and that no crossexamination of this witness was done on the said issue, clearly proves that the accused 7 G.K. Dhawan had not collected the said audited balancesheet before the disbursal of credit facilities to the accused 2 Company, in CBI No. 20/11 87/124 compliance of the condition laid down by the sanctioning authority and this clearly shows his connivance with the accused M.K. Aggarwal.
f) connivance of accused 7 and 8 with accused M.K. Aggarwal also becomes apparent from the fact that they did not conduct a pre sanction visit to check the stock of accused A2 Company and further when on 31.7.1998, he submitted a false stock statement of A2 Company, Ex. PW20/J1 under his signatures showing purchase of material worth Rs. 28 lacs, both of them on the basis of this stock statement alone allowed A2 Company a drawing power to the extent of about Rs. 21 lacs without physically verifying the stocks.
g) the deposition of PW21 Mahender Kumar also proves that pursuant to an application made by accused A2 Company for issuance of a LC on 31.7.1998, this accused on the very day itself, despite the fact that he stood transferred from the branch w.e.f 22.7.1998, directed that the LC be issued on the same day and even handed over the same to the accused Mahender Aggarwal. According to Ld PP as per the banking norms and rules the LC is never to be handed over to the customer and should have, in the ordinary course of conduct of business, been sent through registered post to the advising bank mentioned in the LC and her contention is that the conduct of accused G.K. Dhawan in getting the LC prepared in haste and handing it over to accused Mahender Aggarwal shows his proximity with him and also supports the case of CBI No. 20/11 88/124 the prosecution that he was in conspiracy with him.
h) accused Vipin Jain despite being the Manager (Loans) did not take any steps whatsoever to get physically verified the stock / hypothecated assets of the accused A2 Company and deliberately accepted the false stock statement dated 31.8.1998, Ex.PW 20/J2 furnished by accused M.K. Aggarwal in which the amount of the second availed LC was not reflected intentionally and based on the said false statement this accused made available a drawing power to the extent of Rs. 50 lacs to M.K. Aggarwal and A2 Company. It has been contended that this enabled accused M.K. Aggarwal to submit a cheque for Rs. 29 lacs in the bank for issue of a pay order for Rs. 29 lacs favouring SAIL CAPITAL and accused 8 Vipin Jain used his exceptional power to allow the said withdrawal which also shows his connivance with accused M.K. Aggarwal.
58. In rebuttal to the aforementioned contentions Ld counsel Sh. Kanwal Nain on behalf of accused G.K. Dhawan has vehemently contended that the evidence produced by the prosecution itself shows that nothing illegal was done by the accused G.K. Dhawan and that he had merely acted as per settled banking practices and norms. As regards the recommendation by this accused, of the loan proposal made by accused M.K. Aggarwal on behalf of accused A2 Company without this accused being not known to IFB, OBC, it has been pointed out by Ld counsel Sh. Nain that the deposition of PW8 CBI No. 20/11 89/124 Narender Kumar proves that PW8 had himself introduced accused M.K. Aggarwal to the DGM Sh. S.K. Khanna of the Regional Office who had then sent both PW8 and accused M.K. Aggarwal to meet accused G.K. Dhawan. The contention therefore it that when the accused Mahender Aggarwal had been sent by the Regional Office to the branch office with a request that his loan proposal be considered, there was no option but for the accused G.K. Dhawan to forward his loan application to the Regional Office. It has also been strenuously argued that the accused G.K. Dhawan being the Branch Manager had only forwarded the loan application made by accused M.K. Aggarwal to the Regional Office and that the loan application was processed and the loan sanctioned only at the level of Regional Office and that therefore the allegation of the prosecution that loan should not have been sanctioned at all, for accused M.K. Aggarwal was not known to the bank and further that loan to steel industry was to be discouraged, has nothing to do with this accused. It has been pointed out by Ld counsel Sh. Nain that the deposition of PW26 Sh. P. Sridhar and the document D288 filed by the prosecution itself makes it clear that it was the Regional Office which had processed the loan application of the accused A2 Company and had considered its case as a new connection and the proposal as one for trading of iron and steel and not for industry to which could be granted. Further according to ld Counsel the calculations of projected turnover, MPBF and NWC were CBI No. 20/11 90/124 mentioned in Ex.PW 20/B only on the basis of the documents submitted by A2 Company alongwith their application and that it was for the Regional Office to have made the said calculations at the time of processing of the proposal which they did and that therefore no reliance can be placed on the said calculations to contend that the same were made only to favour the A2 Company. It is thus been contended that the mere forwarding of the loan application by the accused G.K. Dhawan to the Regional Office cannot at all deemed to be an illegal act or an act reflecting that he was in conspiracy with accused M.K. Aggarwal to enable him to obtain a loan / credit facilities in favour of accused A2 Company.
59. It is also the submission that the original documents of the Farm house submitted by accused M.K. Aggarwal were duly forwarded to the Regional Office and the same were got vetted by the Legal Retainer by the Regional Office itself and that only after the said Retainer had given an opinion about the sufficiency of the documents submitted by accused M.K. Aggarwal, was an equitable mortgage got created in favour of OBC and the relevant documents were got executed by accused G.K. Dhawan from accused M.K. Aggarwal. The contention therefore is that if the Legal Retainer had failed to point out that the board resolution of M/s Upkar Estates Pvt. Ltd was required for creation, in favour of OBC, of an equitable mortgage with respect to the Farm house, the accused G.K. Dhawan cannot be held CBI No. 20/11 91/124 responsible for the same.
60. As regards the alleged non compliance of the two of the sanction conditions laid down by the Regional Office before disbursal of the credit facilities it has been pointed by Ld counsel Sh. Nain that these allegations are absolutely baseless for Ex.PW24/DZ3, the Document Register maintained by OBC clearly reveals that the audited balancesheet of accused A2 Company as on 31.3.1998 was obtained by accused G.K. Dhawan before the disbursal of the credit facilities and further the documents Ex.PW21/O15 and Ex.PW21/O16 prove that the document for creation of charge on the assets of accused A2 Company was executed by the Company in favour of OBC on 31.7.1998 i.e again before the disbursal of the credit facilities. He has contended that the prosecution is trying to mislead this court by representing that a charge is only created after the office of ROC registers the same. He has submitted that the creation of a charge is always deemed to have taken effect from the date of execution of documents creating the charge and not from the date of its registration in the office of ROC and that in the present case it was on 30.7.1998 that the charge was created by accused A2 Company in favour of OBC and the application for registration of charge was made within 30 days thereof in the office of ROC, which is the statutory requirement and that therefore no illegality has been committed by accused G.K. Dhawan in this respect.
CBI No. 20/11 92/12461. Ld counsel Sh. Nain has further contended that no illegality can be stated to have been committed by accused G.K. Dhawan in accepting the stock statement furnished by A2 Company, Ex.PW20/J1, without physically getting its stock verified for the deposition of the bank officials themselves have proved that as per general bank practices a stock statement certified by a Chartered Accountant can be accepted by the bank without physical verification of the stocks and that the bank officials are only required to inspect the stocks at irregular intervals and the stock statement Ex.PW20/J1 was duly authenticated by the Chartered Accountant of the accused A2 Company. It has also been submitted that PW31 C.R. Sharma has admitted in his crossexamination that the branch office had taken 21 days to release the first installment of the credit facilities, after the receipt of the sanction order and therefore the allegation of the prosecution that the LC was released in haste has no basis. It has also been submitted that applications for almost 100 LCs are received in a bank on a daily basis and they are processed and issued on the same day itself and therefore the fact that the LC was issued on request of A2 Company, the very next day of an application being filed there for, hardly gives rise to an inference that accused G.K. Dhawan was going out of his way to help accused M.K. Aggarwal. It has been further pointed out that PW20 P.C. Sood, the successor of accused G.K. Dhawan has himself stated in his deposition that he took over the CBI No. 20/11 93/124 charge of the branch only on 1.8.1998 and that prior to the same it was the accused G.K. Dhawan who was responsible for the work of Chief Manager of the branch and the contention therefore is that despite the transfer order of accused G.K. Dhawan being for 22.7.1998, he was relieved of his duties only on 1.8.1998 and therefore was duty bound to get LCs issued for which applications had been received prior to 1.8.1998. It is also the contention of Ld counsel Sh. Nain that the deposition of PW21 does not conclusively prove that the LC was handed over by accused G.K. Dhawan to accused M.K. Aggarwal.
62. In conclusion Ld counsel Sh. Nain has contended that in the present case where the prosecution is relying on circumstantial evidence to prove the offence of conspiracy against the accused G.K. Dhawan, the evidence produced by it is wholly insufficient and inconclusive to prove the guilt of the accused G.K. Dhawan. Ld counsel has referred to the following judgments in support of his contentions :
C. Chenga Reddy & Ors. Vs State of A.P (1996) 10 SCC 193. Abdulla Mohammed Pagarkar Vs State (Union Territory of Goa, Daman and DIU) (1980) 3 SCC 110.
R. Balakrishna Pillai Vs State of Kerala (2003) 9 SCC 700.
State of U.P Vs Ram Balak & Ors. (2008) 15 SCC 551 Vinay D. Nagar Vs State of Rajasthan (2008) 5 SCC 597 Inspector of Police, Tamil Nadu Vs Bala Prasanna (2008) 11 CBI No. 20/11 94/124 SCC 645.
Arun Bhanudas Pawar Vs State of Maharashtra (2008) 11 SCC 232.
Varun Chaudhary Vs State of Rajasthan (2011) 12 SCC 545
63. As regards accused Vipin Jain, Ld. Senior Counsel, Ajay Burman has contended that this accused was also performing his duties as per the banking norms, rules and regulations and that no procedural lapse whatsoever was committed by him either in the recommendation of the loan proposal made by accused Mahender Kumar or in calculating the drawing power available to accused A2 company. In support of this contention has referred to the statements made by PWs 18,19, 24,29 and DW5. Ld. Counsel has also pointed out that PW11 Sh. A.K. Mishra, Chief Vigilance Officer, OBC has admitted in his crossexamination that whenever any discrepancy or lapse is found to have been committed with respect to any account and on the role played by any bank officer, the Inspection and Control Department of OBC conducts an investigation with respect to the same and submits its report to the Disciplinary Action Department and that in the present case also, the said Department had conducted an investigation into the asserted lapses found pertaining to the account of A2 company and that it had reported that no lapses had been committed by any of the branch officers including the accused Vipin Jain and that is the reason that he i.e. PW11 while making his CBI No. 20/11 95/124 complaint to the CBI had annexed a summary Ex. PW11/DY therewith specifying therein that no lapses had been committed by any of the branch officers. Ld. Counsel Sh. Burman has also pointed out that even the Disciplinary Authority in the present case, in its reports Ex. PW18/DX and Ex. PW18/DY and the Board of Directors, in their reports Ex. DW4/H, Ex. DW10/A and Ex. DW10/B have found nothing objectionable in the conduct of the accused Vipin Jain and that, therefore, the contention is that when the own department of OBC did not find any lapse committed by accused Vipin Jain either in recommending the loan proposal of accused A2 company or in calculation of its drawing power, this court cannot on the mere allegation of the investigating agency hold that the accused Vipin Jain had committed any irregularity with respect to the aforementioned acts or that he had deliberately contravened any banking practices to favour the accused M.K. Aggarwal. According to Ld. Counsel, infact it was this accused who had, vide his report Ex. PW24/D, brought it to the attention of the bank that accused A2 company had siphoned off the funds of the bank which clearly makes it apparent that he was never in connivance or in conspiracy with accused Mahender Kumar.
64. It has also been submitted by Ld. Counsel Sh. Burman that the deposition of the Sanctioning Authority PW18 Sh. S.C. Sharma reveals that the sanction for the prosecution of this accused Vipin Jain was given by PW18 in a completely mechanical manner CBI No. 20/11 96/124 without even going through the entire records of this case.
65. In support of his contentions that the evidence produced by the prosecution is wholly sufficient to hold this accused guilty, Ld. Counsel has relied upon the following judgments:
C. Chenga Reddy & Ors. Vs State of Andhara Pradesh 1996 SCC (Crl) 1205.
Rita Handa Vs CBI 2008 (3) JCC 2020.
Radheshyam Kejriwal Vs State of West Bengal & Anr. JT 2011 (2) SC 433.
P.S. Rajya Vs State of Bihar 1996 SCC (Cri) 897 R.K. Srivastava Vs CBI 2011 VII AD (DELHI 257) S. Ram Yadav Vs CBI & Ors. W.P. (CRL) 763/2011 & Crl. M.A. 473/2013.
State of Karnataka Vs Ameer Jan AIR 2008 SC 108.
Shakun Grover Vs CBI Crl. A. No. 760/2010 with Crl. A. No. 767/2010 and Crl. A. No. 819/2010.
Mohd. Iqbal Vs State of Andhra Pradesh AIR 1979 SCC
677.
66. In rebuttal Ld PP Ms. Shashi has relied upon the following judgments :
Hawa Singh Vs CBI ILR (2012) 4 Del 290 Indu Bhushan Chatterjee Vs The State of West Bengal 1958 CBI No. 20/11 97/124 SCR 1001.
State of Rajasthan Vs B.K. Meena & Ors. AIR 1997 SC 13 S.A. Venkat Raman Vs U.O.I & Anr. AIR 1954 SC 375.
67. I have carefully considered the submissions made by the Ld. Counsels and have gone through the depositions, the documents and the judicial dicta referred to by the Ld. Defence Counsels. In the considered opinion of this court it is being rightly contended by Ld Counsels Sh. Nain and Sh. Burman that the evidence brought on record both by the prosecution and the defence does indicate that there were no such procedural lapses committed by accused 7 and 8 which lead only to the irresistible inference that they abused their position as public servants to obtain for the accused Mahender Kumar and A2 company, any pecuniary advantage. The findings of this court on each of the issues raised by the prosecution are as follows :
a) The first allegation against them is that they, in contravention of the guidelines laid down in para 1.4 of page 4 of Advances Manual, VolumeI (Appraisal of Credit Proposals And General Instructions) issued by the Bank, Ex. PW24/DZ2 recommended the grant of credit facilities in favour of accused A2 company without its Director accused M.K.Aggarwal having an account in the Bank or otherwise being known to the Bank and without independent verification of antecedents / scrutiny of information / papers submitted on behalf of the said company by accused M.K.Aggarwal. In the said manual it has CBI No. 20/11 98/124 been emphasized that the selection of 'Borrower' is of utmost importance and applicant should have a properly introduced/satisfactory conduct of account or be otherwise known to the Bank and the Branch Managers must conduct independent verification of antecedents / scrutiny of information / papers submitted by the applicant before making recommending any loan proposals.
Now as pointed out by the Ld. Defence Counsels, as per the deposition of PW8 Sh. Narender Garg he had an account with OBC, Connaught Circus and it is he who had introduced M.K. Aggarwal to Sh. S.K. Khanna, DGM of Regional Office and it was Sh. Khanna who had directed accused M.K. Aggarwal to submit his proposal for availing credit facilities to IFB, OBC. In other words a witness of the prosecution itself has deposed that he had first introduced the accused M.K.Aggarwal to the DGM of Regional Office and then on his directions to the Branch Manager DGM - in such facts the prosecution cannot at all allege that accused M.K.Aggarwal was not at all known to the Bank and accused 7 and 8 recommended his proposal only because they were in connivance with him. Further the submission of accused Vipin Jain that since the accused M.K.Aggarwal in his application had asserted that he was connected with the Jindal Group of Companies, he did not find it necessary to independently verify his credentials may indicate the lackadaisical attitude of this officer but cannot lead to the irresistible conclusion that CBI No. 20/11 99/124 he did so only to aid and facilitate this accused in cheating the Bank. It needs to be borne in mind that a perusal of Ex. PW20/C shows that the Regional Office did not question the absence of any such inquiry while raising other queries on receiving the loan proposal. Further not a single officer of the Bank has come forward, during trial also, to say that the said lapse constituted a major deviation from the normal practices followed in the Bank. As regards recommending the proposal via a handwritten note instead of filling up a printed format prescribed for the same, it is to be noted that neither has any bank official deposed about the said format nor has the said format been seized or produced on record by the Investigating Officer. Without going through the said format and in the absence of any deposition in regard of the same, no conclusion can be drawn at all that non filling up of the same was done by the accused persons to conceal from the Regional Office, some important information about accused A2 Company. Thus no adverse inference can be drawn against the accused persons even in this regard.
b) It is also an admitted position that the proposal of accused M.K.Aggarwal was processed and sanctioned only at the Regional Office. PW19 Suresh Chand Dutt, who as per his deposition was posted as Manager at Regional Office during the relevant period, has clearly stated that the processing of the proposal made by accused M.K.Aggarwal was done at the Regional Office by himself and by Sh.
CBI No. 20/11 100/124P.Sridhar. He has also categorically deposed that the calculation of maximum permissible bank finance as well as of networking capital was done at the Regional Office. In view of such evidence, the prosecution cannot be at all allowed to contend that the said calculations made by the accused Vipin Jain and forwarded by accused G.K.Dhawan, in any manner, facilitated the grant of credit facilities in favour of accused A2 company. The Advance Manual referred to above also does not envisage that such calculations have to be made at the Branch level for a loan which is to be processed and sanctioned by the Regional Office and therefore the submission of accused Vipin Jain that the calculations mentioned in this respect by him in his recommending letter, Ex. PW20/B were only on the basis of the documents submitted by the accused M.K.Aggarwal along with his application and were done only for the convenience of the Regional Office appears to be correct.
c) As regards the allegation that these two accused avoided answering the clarifications / queries raised by the Regional Office and instead forwarded the queries to accused M.K. Aggarwal and then his reply back to the Regional office,it again does not at all appear to be a major deviation infact none of the bank officials examined by the prosecution have stated anything with respect to the same.
d) There is also much merit in the contention of the defence that if the Legal Retainer of the Regional Office did not find anything amiss in CBI No. 20/11 101/124 the documents submitted by accused M.K. Aggarwal for the creation of an equitable mortgage of the Farm house in favour of the OBC, they could not have known that the resolution of the company M/s Upkar Estates was also required. It has been pointed out by Ld Defence counsels that Ex.PW24/DX1 (D64), a document seized by the IO and placed on record by the prosecution itself reveals that the accused G.K. Dhawan had sent this communication to the Legal Retainer of OBC at the Regional Office, one R.K. Dhawan, annexing therewith that all the original loan documents and the original documents relating to the Farm house and requesting him to examine the same to ensure that all proper documentation has been done by the branch office and all the terms of sanction have been complied with. It has also been pointed out that the said Legal Retainer vide his endorsement on the back side of Ex.PW24/DX1 categorically recorded that he has perused all the enclosed documents and enclosures sent to him with the said letter and have found them to be in order. Though it has been sought to be contended on behalf of the prosecution that the said Legal Retainer Sh. R.K. Dhawan examined by the prosecution as PW30 has stated that he had only been sent nine documents namely LD9, LD16, LD26, LD28 (three in number) LD11, LD5, LD61, (various documents executed by accused M.K. Aggarwal in favour of OBC), and not the remaining enclosures / documents referred to in Ex.PW24/DX1, in the considered opinion of CBI No. 20/11 102/124 this court this witness does not appear to have spoken the truth and has given evasive answers with respect to the receipt of the documents relating to the creation of equitable mortgage. The forwarding letter sent to this witness, Ex.PW24/DX1 clearly records that alongwith the original documents LD9, LD16, LD26, LD28 (three in number) LD11, LD5, LD61, other documents as mentioned on page 140 and 141 of the documents register alongwith original property papers are also being forwarded to him. Admittedly pages 140 and 141 of the documents register were also seized by the IO during investigation from the records of the OBC and the said pages, Ex.PW24/DZ3 clearly reveal that the copy of power of attorney dated 14.5.1998 purportedly executed on behalf of M/s Upkar Estates Pvt. Ltd in favour of accused M.K. Aggarwal had been taken on record by the Bank. In other words this power of attorney was also sent to the Legal Retainer Sh. R.K. Dhawan. Further the endorsement of this Legal Retainer, PW30 on the back side of this forwarding letter to the following effect "Perused the enclosed Docs, Aff/undertaking & other enclosures detailed on pre page which are in order and hence approved", makes it clear that he had received all the documents referred to in Ex.PW24/DX1 and has falsely deposed before the court that he does not remember having received any documents apart from the nine documents stated by him. In such view when the Legal Retainer of the Regional Office found the documents CBI No. 20/11 103/124 sent to him to be in order and satisfying the terms of sanction, in the considered opinion of this court it cannot be held that the accused 7 and 8 had deliberately not taken from accused M.K. Aggarwal all the necessary documents for the creation of equitable mortgage. It was the duty of the Legal Retainer to have examined the documents sent to him and to be aware that the power of attorney alone executed in favour of accused M.K. Aggarwal by a purported representative of M/s Upkar Estates Pvt. Ltd without there being any board resolution passed by M/s Upkar Estates Pvt. Ltd authorizing accused M.K. Aggarwal to mortgage the Farm House in question with OBC, IFB, would not be a valid document. On his failure to do so, it is being rightly contended by the defence that the accused 7 and 8 not being legal experts, cannot be held guilty of any dereliction in this respect.
e) As regards the non compliance of the two sanction conditions laid down by the Regional Office also, it has to be held that the prosecution has failed to prove that the accused G.K. Dhawan was guilty of any such non compliance. The contention of this accused that he had collected the audited balancesheet of accused A2 company from accused M.K. Aggarwal is clearly supported by Ex.PW24/DZ3. As narrated herein above Ex.PW24/DZ3, a copy of the document register maintained at the branch office and seized by the IO clearly records that a copy of audited financial statements as on 31.3.1998 in respect of the accused A2 Company was available with the branch as on CBI No. 20/11 104/124 29.7.1998. The relevant page of the said register bears the signatures of both accused 7 and 8 and it is not the case of prosecution at all that this page was fabricated by the accused 7 and 8 at a subsequent date. As narrated herein above infact the copy of the audited financial statement was even sent to the Legal Retainer for his examination. The contention of Ld PP Ms. Shashi that the fact that the successor of accused G.K. Dhawan, PW20 P.C. Sood had written a letter dated 16.9.1998, Ex.PW20/I to accused A2 company asking them to furnish their audited balancesheet for the year 199798 proves that accused G.K. Dhawan had not collected the same, cannot be upheld. The said witness was not asked for any explanation by the Ld prosecutor for writing the said letter and in the absence of the same it cannot be inferred that the sole reason for doing so was that accused G.K. Dhawan had not collected the same from accused M.K. Aggarwal. The possibility that PW20 was not aware that the said document was available with the bank cannot be ruled out at all. In the considered opinion of this court it was the duty of the prosecution to have asked PW20 clearly and in categorical terms, the reasons for him to send Ex.PW20/I. They cannot be heard to contend that since the accused did not ask the witness for the said explanation, an inference is to be drawn that he knew that the explanation if given would have been adverse to him. It has been rightly contended by Ld counsel Sh. Nain that when the witness himself did not utter a word CBI No. 20/11 105/124 that the accused G.K. Dhawan had not collected the said statement and that is why he was constrained to send the letter Ex.PW20/I, there was no reason for the accused to have cross examined him on the said issue. The onus to prove this issue was upon the prosecution and it did not shift by PW20 merely deposing that he had send the letter Ex.PW20/I to accused A2 company.
There also appears to be no force in the contention of the investigating agency that since these accused persons did not create charge over the securities of accused A2 Company with the ROC before disbursal of credit facilities to it, they did not ensure the compliance of the sanction conditions. A perusal of Ex.PW20/E, the sanction letter issued by the Regional Office interalia mentions that all documentation formalities including charging of securities shall be completed before allowing the facilities and the same shall be got vetted from the Legal Retainer of Regional Office. The said condition nowhere lays down that the formalities of creating charge has to be done with the office of ROC and therefore there is no basis for the allegation made in the chargesheet that accused G.K. Dhawan did not comply with the sanction conditions by not completing the formalities of creation of charge on the securities of accused A2 Company in ROC before release of the facilities. It has been rightly contended by Ld counsel Sh. Nain that the creation of a charge and its registration in the office of ROC are two separate and distinct acts and the CBI No. 20/11 106/124 investigating officer has failed to appreciate the same. Section 2 (16) of the Companies Act, 2014 defines charges so as to mean an interest or lien created on the property or assets of a company as security and includes a mortgage and the essential feature for the creation of such a charge as laid down by this section itself is that a written agreement should be entered into by the company in favour of the lender. In other words a charge is created by execution simplicitor of an agreement by the borrower in favour of the lender manifesting his intention to offer one or more of its specific assets or properties as security for the repayment of the borrowed money. The registration of such a charge is altogether a separate and distinct act and is provided for under section 77 of the Companies Act, 2013 and lays down that all charges created by a company have to be registered with the ROC. The contention of Ld PP however is that since the charges created by accused A2 company would not have been valid without their registration, the condition laid down in the sanction order issued by the Regional Office for completion of all documentation formalities including charging of securities should therefore be deemed to have required the completion of documentation for its registration with the ROC also. The said contention of Ld PP does not appear to have much force for firstly section 77 of the Companies Act, 2013 makes it clear that unregistered charges would be void only against the liquidator and any creditor of the company on the winding up of the CBI No. 20/11 107/124 company and non registration of a charge does not invalidate the charge against the company as a going concern. Secondly admittedly the accused M.K. Aggarwal had executed agreement dated 30.7.1998 with OBC, Ex.PW21/O19 for creation of the equitable mortgage in respect of the Farm house and another agreement dated 29.7.1998 for hypothecation of assets of accused A2 Company, Ex.PW24/F4 and these agreements, as narrated herein above were sent to the Legal Retainer Sh. R.K. Dhawan for his examination and opinion whether or not the same satisfied the conditions of the sanction. Yet again he did not give an opinion that the said documents should also be deposited with the ROC for registration of charge before the release of credit facilities. In such view in the considered opinion of this court it is being rightly contended on behalf of the accused G.K. Dhawan that he complied with the conditions of sanction as laid down by the Regional Office by getting the aforementioned two documents executed by accused M.K. Aggarwal, before the release of credit facilities. It is also a matter of record that the said agreements alongwith the requisite form no. 8 and form no. 13 as required by the Companies Act 1956 were deposited with the office of ROC on 24.8.1998 as evidenced by Ex.PW21/O15 to O18. In other words the charges were created on 30.7.1998 i.e before the disbursal of the credit facilities and it is only the registration of the charge created that was got done after the disbursal of the credit facilities.
CBI No. 20/11 108/124f) The next allegation against these accused persons is that they did not physically cross check the stocks of accused A2 company before allowing the company the drawing power of about Rs. 21 lacs immediately after the loan was sanctioned by the Regional Office. In this respect it is worthwhile to take note that PW19 Sh. S.C. Dutt who was the then Manager at the Regional Office, has admitted the following in his cross examination: "once a loan is sanctioned by the Regional office, then for the first time to ascertain drawing power physical cross checking of the stock is not required if the party submits a statement duly certified by a Chartered Accountant." Though no doubt this witness in his examination in chief had deposed that generally the statements as well as stocks submitted by a party are required to be cross checked and verified at the Branch level before ascertaining the drawing power, the statement given by him in his cross examination makes it clear that the requirement of physically cross checking the stocks is not necessary when the drawing power is being calculated for the first time after the sanction of the loan and the party files a copy of the statement of stock duly certified by a Chartered Accountant. Similarly, PW31 Sh. C.R. Sharma the then General Manager (Credit), Head Office, OBC has also in his cross examination stated that whenever a Chartered Accountant certified stock statement is furnished with the bank by the borrower, then on the basis of the same, drawing power can be ascertained and loan can be CBI No. 20/11 109/124 disbursed without physical verification at that time. PW 29 Sh. S.K. Khanna, the then Deputy General Manager, Regional Office, OBC and PW32 Sh. Ajay Jindal, the then Manager (IFB), OBC have also deposed similar facts in their testimony. None of the aforementioned witnesses were reexamined by the prosecution to suggest that they had deposed incorrect facts in their crossexamination. In such view it is to be accepted that no irregularity can be stated to have been committed by accused 7 and 8 in calculating the drawing power of accused A2 company on the basis of the certified statement of stock, Ex. PW20J/1 furnished by accused M.K. Aggarwal on behalf of accused A2 company. As regards the pre sanction visit also PW 29 Sh. S.K. Khanna and PW 26 Sh. P. Sridhar, have also deposed in their testimony that no pre sanction visit in the present case was required as the firm was venturing into a new field and there would have been no stocks which could have been inspected.
g) As regards the allegation that the accused G.K. Dhawan appeared to have acted in haste by issuing a LC on 31.7.1998 despite having been transferred from the branch w.e.f 22.7.1998 it will be relevant to consider the depositions of PW 20 P. C. Sood and PW31 C.R. Sharma. PW20 Sh P.C. Sood, the successor of accused G.K. Dhawan has clearly stated in his crossexamination that he took over the charge of the Branch only on 1.8.1998 and that prior to the same it was the accused G.K. Dhawan who was responsible for the work of Chief CBI No. 20/11 110/124 Manager of the Branch. In view of such deposition clearly there appears to be nothing wrong on the part of accused G.K. Dhawan in getting the LC issued on the request of accused A2 Company made on 30.8.1998. Further PW31 C.R. Sharma has also stated in his cross examination that the branch office had taken 21 days to release the first installment of the credit facilities, after the receipt of the sanction order and to his knowledge the same was not released in haste. Thus clearly his deposition also does not appear to support the allegation of the prosecution that the LC was released in haste. As regards the handing over of the LC by accused G.K. Dhawan to accused M.K. Aggarwal, though no doubt the deposition of PW21 and the admission of accused M.K. Aggarwal himself that he was handed over the said LC, does indicate that the accused G.K. Dhawan acted irregularly, it is not being disputed by the prosecution that this act alone could not have aided the accused M.K. Aggarwal in getting the LC discounted in any Bank other than the Advising Bank. Admittedly the sanction order issued by the Regional Office itself did not provide for restricted LCs and therefore the LC in question could have been discounted by any Bank other than the Advising Bank. It cannot be at all ignored that in the chargesheet itself the Investigating Officer has categorically mentioned that gross negligence was committed by S.K. Khanna, DGM, Regional Office by failing to lay down in the sanction order of the credit facilities itself that the LCs should be restricted / prohibited CBI No. 20/11 111/124 to ensure proper end use. Further admittedly it is this Bank official only who was found at fault by OBC and was also dismissed from services for not having followed the proper procedure in sanctioning of the credit facilities. Ld. P.P had no explanation as to why the role of this Bank official was not properly and more thoroughly investigated in getting the credit facilities sanctioned in favour of the accused A2 Company and why only the branch officials who had only released the credit facilities in terms of the sanction order were investigated.
h) Coming now to the allegation that the connivance of the accused Vipin Jain with accused M.K. Aggarwal should also be inferred in view of the fact that this accused used his exceptional power to first get cleared a cheque for Rs. 29 lacs issued by accused A2 Company in its own favour and then got a pay order in the amount of Rs. 29 lacs issued from the account of accused A2 Company in favour of SAIL, it will be relevant to discuss the contentions made by the Ld PP and Ld Defence counsel and the evidence produced in this respect in a more detailed manner. Ld. PP has submitted that the prosecution through the depositions of PW 19,20,21,24 and PW31 has proved the said allegation beyond all doubt. She has pointed out that though as per the records proved by these witnesses both the LCs of Rs. 1 crore had been negotiated by the respective firms viz. M/s Hind Steel Sales and M/s Rohini Strips Ltd by 25.8.1998, this accused did not deduct the amount of second availed LC from the closing stock as on 31.8.98 and CBI No. 20/11 112/124 made available a drawing power of Rs. 50 lacs to accused A2 Company on the said date. She has also pointed out that these witnesses have also proved it is this accused who received and initialed the stock statements dated 31.8.1998 Ex PW 20/J1 and Ex.PW20/J2 submitted by accused M.K. Aggarwal but did not deliberately physically verify the stocks of accused A2 Company despite the fact that these were not certified by a chartered Accountant, with the sole intention to provide further drawing power to accused A 2 Company in its CC account which enabled the accused M.K. Aggarwal to get issued a pay order in the amount of Rs. 49 lacs in favour of SAIL to get cleared the dues of M/s Rohini Strips Ltd.
68. In reply Ld. Defence counsel Sh. Burman has submitted that the contentions of the Ld. PP are absolutely incorrect for the depositions of none of the aforementioned witnesses lead to any inference of misconduct committed by this accused. He has submitted that infact the crossexamination of these witnesses amply proves that no illegal or irregular act has been committed by this accused. The contention of Ld counsel Sh. Burman is that the deposition of the aforementioned prosecution witnesses makes it very clear that there was no practice of physically inspecting the stocks before allowing drawing power and that the inspection of the hypothecated stock used to be done only in a random manner and at irregular intervals and that too only by an officer deputed by the Branch Manager. It has been CBI No. 20/11 113/124 pointed out by Ld Counsel Sh Burman that accused Vipin Jain was deputed by the Branch head to inspect the stocks of accused A2 Company only in the month of November 1998 and he did so and submitted a report ExPW24/D vide which he infact brought it the notice of the Bank that accused A2 company did not appear to be having any stock and appeared to have siphoned off the funds of the bank and the contention therefore is that had this accused been in connivance or in conspiracy with accused Mahender Kumar he would not have given such a report. Ld counsel Sh. Burman has also contended that the mere fact that this accused being the Manager (Loan) had received the stock statements submitted by the accused company and initialed the same in acknowledgment of having received it does not at all lead to the inference that he, in connivance with the accused M.K. Aggarwal, sought to certify that the statements were correct. It has also been pointed out by Ld Counsel that as per the own records of OBC, the second LC pertained to consignment of goods from Bhind to Delhi and was negotiated only on 25.8.1998 and that therefore there was no reason for this accused to have doubted Ex.PW20/J2, the stock statement as on 31.8.1998 which reflected that the stocks had not been received till 31.8.1998 and therefore the contention is that this accused cannot at all be held liable for failing to subtract the chargeable stock received under second LC before issuing the pay order on request of accused M.K. Aggarwal. As regards the CBI No. 20/11 114/124 siphoning of funds to clear the dues of M/s Rohini Strips Ltd against SAIL, the contention is that this accused had clearly mentioned on the pay order that the same had been issued on account of accused A2 Company and that therefore could not have at all imagined that the same would be used to clear the dues of M/s Rohini Strips Ltd.
69. After carefully considering the aforementioned submissions of the Ld Counsels and perusing the evidence produced, in the considered opinion of this court no inference of criminal misconduct can be inferred against this accused in respect of calculation of drawing power also. Now the first allegation against this accused in this respect is that he calculated the same without physically verifying the stocks of accused A2 Company. In order to appreciate the contentions made by the Ld. PP and the Ld Defence counsel in this respect it will be now necessary to consider the depositions of the bank officials referred to by the Ld counsels. As regards PW19 S.C. Dutt, the then Senior Manager, OBC, Regional Office, Ld. PP has pointed out that he has categorically deposed that the stock statements submitted by a party are generally required to be cross checked and verified at the branch level before ascertaining the drawing power available to a party. Similarly the statement of PW20 P.C. Sood, the then Branch Manager, IFB, OBC to the effect that as per the banking rules, the physical verification of stocks is required to be done before marking the drawing power in favour of any parties, is CBI No. 20/11 115/124 being relied upon by the Ld. PP to contend that the accused Vipin Jain could not have calculated the drawing power without physical verification of the stocks of accused A2 Company.
70. In the considered opinion of this court the aforementioned statements made by PW19 and PW20 in their examinationinchief cannot be relied upon by the Ld PP without referring to the clarifications given by PW19 and other prosecution witnesses in their crossexamination with respect to the aforementioned issue of calculation of drawing power. In particular the following statements made by the prosecution witnesses in their crossexamination do reflect as contended by the defence that no illegal act appears to have been committed by the accused Vipin Jain in calculating the drawing power without physical verification of the stocks of accused A2 Company :
Statement of PW19 Sh. S.C. Dutt inter alia to the effect:
"....No specific condition was imposed by the Regional Office directing the branch office to conduct physical verification and cross checking the stock statements submitted by the party before allowing drawing power."
"....it is correct that as per the normal practice the physical verification of stocks are required to be conducted in a random manner and at irregular intervals."
".... whenever physical verification of stocks are CBI No. 20/11 116/124 required to be conducted then an officer for the said purpose is specifically deputed by the Branch Head."
Statement of PW24 Sh. Anil Sahi interalia to the effect :
"...... Our branch has published a loan manual wherein it has been specifically incorporated that the stock statement submitted by the party are required to be verified by the Credit Loan Officer and the premises of the party is required to be visited by the bank on irregular basis. As per this manual, bank had instructed the Branch Manager to appoint a Monitoring Officer who was required to submit the quarterly report to the sanctioning authority about the conduct of the account and visit of the premises of the borrower on quarterly basis."
".... as per loan manual, it may not be the responsibility of the credit loan officer to visit the premises of the party for verifying the stock statement. (Vol. It may be any officer appointed by the Branch Manager to do the needful.)"
Statement of PW31 Sh. C.R. Sharma, General Manager (Credit), HO, OBC inter alia to the effect :
'.........any borrower who has approached the bank for availing the loan facility is required to furnish his stock statement and on the CBI No. 20/11 117/124 basis of this stock statement drawing power of the borrower is ascertained. After release of the funds the borrower is required to furnish his subsequent stock statement at regular intervals which is required to be verified by the branch officials as per the terms of the sanction.'
71. This accused has also produced Sh. S.C. Malhotra (DW5), a retired official of the OBC in his defence and this official has interalia stated that he has retired from the post of DGM (credit) from the Head Office of OBC on 31.7.2011 and that as per bank practices the drawing power is allocated on the basis of stock statement received by the branch and since the operations in cash credit are on a continuous basis, physical verification of the stock may be done subsequently at irregular intervals by an officer assigned with the said duty. The aforementioned statements of prosecution witnesses and a defence witness, all of whom who have held important positions in the Bank and therefore would have knowledge of general Bank practices, do infact support the contention of the accused Vipin Jain that since the sanction order issued by the Regional Office itself did not specify that the drawing power is to be calculated only after physical verification of the stocks, as per the bank practices the stocks could have been verified after the release of funds / CC at irregular intervals and that too after the Branch Manager would have appointed an officer for the said inspection. In the considered opinion of this CBI No. 20/11 118/124 court there was therefore no illegality committed by the accused in accepting the stock statement Ex. PW20/J2 without physically inspecting the stock of accused A2 Company. Now further admittedly this stock statement did not reflect the receiving of the stocks, as on 31.8.1998, under the second LC and therefore there would not have been any occasion for accused Vipin Jain, to deduct the stocks of the second LC from the total stocks for the calculation of the drawing power, as explained by PW19 S.C. Dutt. This witness has clearly explained in his cross examination that till the time the stocks are received by the party, the amount of LC is not required to be deducted from the stocks and that in case the stocks in the present case had not arrived by 31.8.1998, then the drawing power calculated by the accused Vipin Jain as on 31.8.1998 was correct.
72. Coming now to the second allegation that accused Vipin Jain calculated the drawing power in the absence of the Branch Manager by using his exceptional powers, the prosecution has not put a single question regarding this purported exercise of exceptional power to any of the Bank officials summoned as prosecution witnesses. Even during final arguments the Ld PP was at pains to explain where is the term exceptional powers defined and from where has the prosecution inferred that any exceptional power was exercised by this accused except to rely upon the statement made by PW21 Sh. Mahender Singh in his cross examination. Now this witness in his CBI No. 20/11 119/124 examinationinchief has not deposed a word on the issue of the exercise of exceptional powers by accused Vipin Jain. His relevant deposition with respect to the cheque issued by the accused A2 Company in its favour for issuance of the pay order is only to the effect that during the relevant time he was posted as Manager with IFB, OBC and that the accused Vipin Jain was posted as Senior Manager in the same branch and that on asking of the accused Vipin Jain, he had passed the cheque Ex. PW20/G, issued by accused A2 Company in its favour. It is only in the crossexamination of this witness conducted by accused Vipin Jain himself that this witness sought to explain that though it was his duty to pass cheques and that generally he himself used to pass the same, Ex. PW20/G was referred by him to accused Vipin Jain as there must have been some problem relating to drawing power. He then further went on to state that whenever there is some discrepancy in a cheque or a document, exceptional powers in a branch are used by the seat Incharge or Branch Manager to get the same cleared and an entry is made in the DP Register in the said regard. Based on the said testimony of PW21 Ld. P.P has sought to contend that the DP Register proved on record as Ex. PW20/K clearly reflects that an entry was made by accused Vipin Jain on 31.08.1998 and this according to her was done in the exercise of his exceptional powers. Ld. Defence Counsel has however rightly pointed out that the witness PW21 has also clearly deposed that whenever such CBI No. 20/11 120/124 a cheque has been cleared by use of exceptional powers, the official preparing the cheque has to also make an entry in the "Refer Register"
and that in the case of cheque Ex. PW20/G, he did not make any such entry in the said register. Clearly the said admission made by PW21 shows that the cheque was not cleared in the use of any exceptional power for even otherwise the DP Register, Ex. PW20/K as pointed out by accused Vipin Jain does not refer to the passing of any cheques but refers to the marking and calculation of DP after the receipt of stock statements. Ld. P.P had then sought to contend that even the said register envisages that the calculation of the drawing power is to be initialed by the Loan Manager and the Branch Manager both and that since the entry made on 31.08.1998 in the said register was only initialed by the accused Vipin Jain, it should be deemed that he used his exceptional powers for the calculation of the drawing power if not for the issuance of the cheque Ex. PW20/G. She has further submitted that though none of the prosecution witnesses have deposed anything in the said respect, the record of OBC summoned by the accused Vipin Jain himself in his defence shows that even the Disciplinary Authority has charged him for having initialed the said DP Register and for having calculated the DP in the absence of the Branch Manager.
73. This court has gone through the entire said records. Admittedly as per the said records of OBC summoned by this accused in his defence, after CBI had sought sanction for the prosecution of CBI No. 20/11 121/124 this accused from OBC, departmental proceedings were sought to be initiated against this accused by the Disciplinary Authority of OBC, for him having committed irregularities in the operation of the account of accused A2 Company but the said disciplinary action was kept in abeyance by the Board of Directors of OBC after seeking the opinion of the CVO and CVC. DW4 Mrs. Suneja Janardhanan, Section Officer, CVC and DW10 Sh. Ashok Kumar Gupta, AGM and Board Secretary, OBC examined by this accused in his defence have placed before this court the complete record with respect to the aforementioned proceedings and the relevant records have been exhibited as Ex. DW4/A to Ex. DW4/G and Ex. DW10/A and Ex. DW10/B. The said record infact clearly reveals that as per the Disciplinary Authority, CVO and CVC no major illegality or irregularity has been committed by this accused in the calculation of the drawing power. In the said record the Disciplinary Authority has, with respect to the DP Register, observed that though in the absence of signature of Branch Manager, allowing DP was irregular however since the DP was marked in the computer system by this accused no malfide intention can be inferred from this act alone. Ld Defence Counsel has explained that the marking of the DP and infact entry of all transactions conducted by all the bank officials is done in the computerized data at the end of the day to enable the Branch Manager to be informed of the same and since in this case the accused had done CBI No. 20/11 122/124 so the Disciplinary Authority was satisfied that the accused had complied with the usual bank practices in this respect. The said records, as pointed out by the Ld Defence counsel do reveal that CVC and the Board of Directors of OBC have not found any major lapse committed by this accused in the operation of the account of accused A2 Company.
74. No doubt it has been rightly contended by Ld. P.P that since the Bank had given its sanction to prosecute the accused Vipin Jain it must be deemed that it was satisfied that this accused was guilty of misconduct, it is also to be borne in mind that in the Minutes of Meeting of the Board of Directors of OBC held on 29.9.08, Ex. DW 4/H (colly), it has been observed that "the sanctioning authority had not carefully examined the CBI record and had the same been properly examined, the officer would not have been subjected to undue hardship as happened in the present case." Further even the sanctioning authority PW18 Sh S.C. Sharma in his crossexamination has admitted that he in his communication dated 6.9.2004, Ex. PW18/DX to CVO, had mentioned that he had examined the documents submitted by CBI to him at macro level as the documents were voluminous.
75. In view of the entire discussion herein above, this court is therefore of the considered opinion that no major irregularities or lapses appear to have been committed by the accused 7 and 8 in the CBI No. 20/11 123/124 operation of the account of accused A2 Company from which an irresistible inference of their connivance with accused M.K. Aggarwal can be inferred. They are also therefore entitled to be acquitted of the charges for which they have faced trial in the present case.
76. Thus in view of the detailed discussion herein above it is only the accused persons M.K. Aggarwal, Alok Aggarwal and the accused A2 Company who are liable to be held guilty. Accordingly all three of them are hereby held guilty for having committed the offences punishable under section 420 IPC, 471 IPC and section 120B IPC and accused M.K. Aggarwal and accused A2 Company are also hereby held guilty for the offence punishable under section 468 IPC.
Announced in the Open Court On the 23rd September 2016.
(ANU GROVER BALIGA) SPECIAL JUDGE : C.B.I. (P.C.ACT) DWARKA COURTS, NEW DELHI.
CBI No. 20/11 124/124