Delhi District Court
State vs Anil Kumar Gautam Etc on 7 December, 2024
IN THE COURT OF RISHABH KAPOOR, JUDICIAL
MAGISTRATE FIRST CLASS -05 SOUTH WEST DISTRICT,
DWARKA COURTS: DELHI
Digitally signed by
RISHABH RISHABH KAPOOR
State Vs. : Anil Kumar Gautam & Ors. KAPOOR Date: 2024.12.07
16:10:40 +0100
FIR No : 397/1998
U/s : 420/468/471/120B/34 IPC
P.S. : Vikas Puri
JUDGMENT:
1. Criminal Case No. : 9883/19
2. Date of commission of offence : 26.04.1998
3. Date of institution of the case : 21.12.2001
4. Name of the complainant : State
5. Name and parentage of accused :(i) Anil Kumar Gautam
S/o Sh. Chotey Lal
(ii) Rajesh Kumar Kataria
S/o Sh. Lakhmi Chand
(iii) Jai Parkash Kataria S/o
Sh. Chiranji Lal
(iv) Shankar Lal S/o Sh. Panchu
Lal,
(v). Rajesh S/o Sh. Kishori Lal
(vi). Om Narain S/o Sh. Raghu
Nath Singh
(vii) Ramesh Chander S/o
Late Sh. Jile Singh
6. Offense complained or proved : U/s 420/468/471/120B/34
IPC
7. Plea of the accused : Pleaded not guilty
State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 1 8. Date on which order was reserved : 16.11.2024 9. Final order : Acquitted. 10. Date of final order : 07.12.2024.
1. The accused persons are facing trial for the offences u/s 420/468/471/120B/34 IPC. The genesis of the prosecution story is that complainant Sh. G. D. Sapra, Deputy General Manager, RBI lodged a complaint dated 19.06.1998 alleging that he came across a newspaper advertisement in "The Aaj" newspaper published from Agra U. P. wherein its' issue dated 28.04.1998, accused Anil Kumar Gautam projected himself to be a the Chief Promoter of National Urban Cooperative Bank Ltd. and approached M/s Adarsh Welfare and Portfolio ( India ) Ltd. a Placement Agency registered with the Registrar of Companies as a registered company having registered office at Katwaria Sarai, New Delhi for publishing the newspaper advertisement for inviting application for appointment of employees against 465 vacancies belonging to different categories. The application fee was fixed as Rs. 150/- for General candidates and Rs. 75/- for SC/ST candidates and pursuant to the said advertisement, the applications forms were being received and the drafts representing application fees were deposited with Vijay Bank Daryaganj. The placement agency was expecting to receive approximately 50,000 applications for the aforesaid advertised posts. It is also alleged that the directors of the aforesaid bank were selling equity shares of Rs. 100/- in a lot of minimum 20 shares and on the reverse side of share application form, a false declaration was made that the board of directors of National Urban Cooperative Bank Ltd. consists of three directors of RBI and five directors of Delhi Government. It is also in the allegations that the share application form does not use word '' proposed State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 2 '' giving an impression that it was an existing bank. The complainant also alleged that the promoters of the bank are working with clear intention for deceiving the public at large as the aforesaid bank was not even a registered society and there was no justification for promoters to call for applications of large-scale vacancies. It is also in the allegations that the placement agency opened an office in the premises where the aforesaid bank was located and the action of the promoters of bank in selling the equity shares with false declaration declaring that the board of directors of the bank consisted of three directors of RBI and five directors of Delhi Government is a false representation. The criminal law was set into motion on the basis of aforesaid complaint and present case FIR was registered. During course of the investigation, the complicity of above- named seven accused persons was discovered in the alleged offences. The names of four other accused persons namely, Sanjay, Sunil Kumar, Sushil Kalonia and Vinod Kumar also surfaced during the investigation. The accused Sanjay Khatri was declared Proclaimed Offender on 28.03.2000 as he failed to join the investigation of the case and accused Sunil Kumar, Sushila Kalonia and Vinod Kumar were kept in Column no. 2 of the charge sheet as it transpired that they already resigned from the aforesaid bank prior to the date of impugned advertisement. The specimen /admitted handwriting and signatures of accused persons were taken during the investigation and were sent to Govt. Examiner of Questioned Documents, Hyderabad for examination and analysis with the questioned documents stated to be containing the signatures/ handwriting of accused persons and a report dated 22.06.2000 was received from GEQD. The statements of material witnesses acquainted with the facts of the case were also recorded during investigation and after completion of investigation, the present charge sheet was filed for conducting trial of State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 3 accused persons for the alleged offences.
2. After taking cognizance of the offences, the presence of the accused persons was obtained through instrumentality of Court and in compliance of provisions of section 207 Cr.P.C., copy of chargesheet and documents were supplied to accused persons. Arguments on charges were heard and initially vide order dated 16.08.2004, charges were framed against accused persons namely Anil Kumar, Rajesh Kumar Kataria and Jai Parkash Kalonia and whereas, all other accused persons were discharged from the present case. The aforesaid order however set aside by ld. ASJ vide its order dated 25.10.2007 and the matter was remanded back for reconsideration. Thereafter, pursuant to order dated 14.07.2016, charges for offences U/s 420/468/471/120B/34 IPC were framed against all accused persons. The accused persons pleaded not guilty and claimed trial. Thereafter, the prosecution evidence began.
3. In order to establish guilt of the accused persons, prosecution has examined 25 witnesses in all. After prosecution evidence, statements of accused persons u/s 313 Cr.P.C. were recorded wherein all the incriminating circumstances were put to accused persons. The accused persons did not opt to lead evidence in their defence. Final arguments were heard.
4. I have heard the rival contentions advanced on behalf of the prosecution and defence and have also gone through the case file carefully.
5. The allegations leveled against the accused persons are that the State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 4 accused persons in furtherance of criminal conspiracy with each other got published a newspaper advertisement dated 26.04.1998 by which they posed themselves as the promoters of the National Urban Cooperative Bank, which was an unregistered entity and advertised for the vacancies for various posts. The allegations are also to the extent that the accused persons also advertised for the sale of equity shares of the bank with the false declaration that the governing body of the bank constituted three directors from RBI and five directors from Delhi Government. The accused persons allegedly induced the innocent public persons for making the applications for the advertised posts by submitting the requisite fees by way of demand drafts and that the innocent public has also made payment in favour of accused persons for buying the equity shares of the bank, which amounts were misappropriated/apportioned among themselves by the accused persons, thereby constituting offences u/s 420/468/471/120B/34 IPC.
6. It has been contended by Ld. APP for the State that the prosecution has established beyond all reasonable doubts that accused persons have dishonestly induced the complainants and other innocent persons to part with money on the pretext of making applications against the advertised vacancies and also for purchase of equity shares of the bank and have dishonestly misappropriated the said amounts and thereby have committed offences punishable u/s 420/468/471/120B/34 IPC. Ld. APP for State further submits that the accused persons deserve to be convicted for the alleged offences.
7. Per contra, Ld. Defence Counsels have argued that the complaint on the basis of which the present case was registered is a cryptic State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 5 document as same does not specify about the source of information of the complainant vide which the accused persons were found involved in the alleged offense. It is also argued that even the alleged recoveries of the incriminating articles such as demand drafts of the bank as well as other bank related documents shown to be affected from the accused persons is dubious. Tit has also been argued that there also lies material contradictions in the version of prosecution witnesses, hence, accused persons deserve to be acquitted for the alleged offences.
8. Prior to delving into the merits of the present case, let us briefly discuss the testimonies of material prosecution witnesses, in brief.
9. PW-1 G. D. Sapra is the complainant in the present case. He deposed that on 26.04.1998, he was working as Deputy General Manager at RBI and he came to know about one advertisement in "The Aaj"
published from Agra UP in its issue dated 26.04.1998 that one bank namely National Urban Cooperative (Proposed ) at B-57 3 rd Floor New Krishna Park Najafgarh Road Dhauli Piyau, Vikas Puri for inviting applications for appointment of various officials in the said bank and the application fee is fixed as Rs. 150/- for General candidates and Rs. 75/- for SC and ST candidates and in pursuance of said advertisement, the application forms for various posts were received and the drafts representing the application fee were deposited with Vijaya Bank Daryaganj. Thereafter, he deputed one of his staff namely, H. N. Malhotra the then Staff officer Grade-I to make a discrete inquiry from the proposed bank and placement agency about the aforementioned advertisement. He identified the aforesaid advertisement as Mark-2A along with bank;s share application form and other related documents as State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 6 Ex.P-1(Colly). He deposed that on his instructions, H. N. Malhotra was sent for making a discrete inquiry from the bank /placement agency of accused persons and brought the documents Ex. P-1. He further deposed that complaint Ex. PW-1/A was sent by him to SHO concerned, on the basis of which the present FIR was registered. During his cross
-examination he could not state about the source of information of publication of advertisement in the newspaper "The Aaj". He deposed that one Vishambhar Dutt who was an employee in RBI Canteen made a complaint to him that his son applied for the aforesaid post in response to the said advertisement and wanted to know whether the approval to the bank was given by RBI or not. He admitted of having not received any complaint from any person with regard to the aforesaid advertisement. He could not state whether any report was given by H. N. Malhotra or not. He admitted of not having visited the office of accused Anil Kumar Gautam/ placement agency at any point of time. He also admitted of having never seen any of the accused persons in the said office or anywhere else. He deposed that oral instructions for making inquiry were given to H. N. Malhotra. He admitted that newspaper cutting Mark-2 A is only an amendment / corrigendum and not the main advertisement. He volunteered that the main advertisement was in the form of pamphlet which is Ex. P-1 dated 26.04.1998. He admitted that the complaint Ex.PW1/A does not contain details of the seven enclosed documents sent along with it. He admitted that the first document Ex. P-1(Colly) appears to be published by one publisher namely, Prashant Publications Bulandshehar. He admitted that blank share application form mentioning about the constitution of the governing body of bank has not been filled or signed by anyone and that he was informed by H N. Malhotra about bringing of the aforesaid documents from placement agency. He admitted State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 7 that the proposed bank was a different entity than the placement agency and no seizure memo pertaining to documents Ex. P-1 (Colly.) was handed over to him by H. N. Malhotra. He could not state that whether he instructed in the proposed complaint that he was informed by Vishamber Dutt that his son applied for the post of clerk in the proposed bank. He denied that no such letter was given to him by Vishambar Dutt or that it was not part of his complaint. He deposed that pursuant to letter sent by his office, he received a reply from Registrar of Cooperative Societies that the proposed bank was not registered with them. He deposed that he was never associated or joined in the investigation of the case. He denied that he lodged the complaint Ex.PW1/A against accused persons without verification and on the basis of false and concocted facts.
10. PW-2 H. N. Malhotra is the bank official who stated to have conducted the inquiry pursuant to directions of complainant. He deposed that on 26.04.1998 he was deputed by DGM Sh. G D Sapra for making discreet inquiry from the National Urban Cooperative (Proposed) Bank at B-57, 3rd Floor New Krishna Park Najafgarh Road, Dhauli Piyau, Vikas Puri Delhi and also from the placement agency about advertisement dated 24.04.1998 published in newspaper "The Aaj". He further deposed that on the directions of DGM, he conducted the aforesaid inquiry and submitted the report before DGM Sh. G.D. Sapra, on the basis of which he made police complaint on 19.06.1998. He deposed that on 25.06.1998, he went to PS Janak Puri for knowing the progress of investigation on the aforesaid complaint and he met IO. Thereafter, he along with IO and other staff went to the office of aforesaid bank and on reaching there, a hoarding of the bank was found affixed on third floor of the building. He deposed that he and police team went inside the bank and found accused State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 8 Anil Kumar Gautam and Rajesh Kataria sitting there. He identified both the above-named accused persons and informed IO that they were the directors of the bank and have given advertisement in newspaper. He also identified the documents in the nature of impugned advertisement, application for subscription of share capital, the application made by the proposed bank to Registrar Cooperative Societies and application for appointment made by candidate Vishambhar Datt which are Ex. P1 (Colly.). He deposed that the aforesaid documents were seized by the IO during investigation. He could not identify the newspaper cutting of impugned advertisement. Thereafter, he was cross examined by ld. APP for the State and he failed to identify accused Anil Kumar Gautam and Rajesh Kataria on account of fading of memory due to lapse of time. During his cross-examination by defence, he admitted that no residents of ground floor, first floor, second floor of the building or any public persons were joined in the investigation by the IO. He admitted that the inquiry report was not prepared by him on that day and he only made oral submissions to his superior Sh. G. D. Sapra. He stated that the arrest memos of accused persons were not prepared in his presence. He admitted that the impugned advertisement was not recovered from the office of accused persons nor any share certificate or other documents were recovered from the aforesaid office of accused persons in his presence. He deposed that the verbal instructions for conducting the inquiry were issued to him by Sh. G. D. Sapra. He admitted that there is no mention about the date, month and year on newspaper cutting Mark- 2A. He could not state about signing of any documents during the course of investigation. He denied that he was never associated in the investigation of the present case. He could not state whether he had seen the copy of complaint dated 19.06.1998 prior to 25.06.1998. He admitted State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 9 that no recovery was effected in his presence on 25.06.1998.
11. PW-3 Ajay Kumar deposed that in June 1998 he purchased a form for job application from a street vendor and thereafter, he applied for post of accountant in a public sector bank. He also deposed of having deposited his application with draft of Rs. 150/- but he did not receive any reply. He was also cross examined by ld. APP for the State and admitted that the job application form pertained to employment in National Urban Cooperative Bank and he sent his application and demand draft of Rs. 150/- via post at Adarsh Welfare Portfolio. He denied that he reached the office of Adarsh Welfare Portfolio when he did not receive any information regarding the job and came to know from public persons that the aforesaid bank was bogus. He denied that the public persons informed him about the arrest of persons who were operating the bank.
12. PW-4 Shailender deposed that in March 1998, he came across the advertisement for job application in National Urban Cooperative ( Proposed) Bank and thereafter, he purchased a form from his wife Asha Rani. He deposed that his wife had applied for post of Cashier in the bank and attached DD of Rs. 275/- along with the application form, which she personally deposited at Adarsh Welfare Portfolio. He further deposed that after some days, he received a cheque of Rs. 150/- in favour of his wife Asha Rani, which was issued by Adarsh Welfare Portfolio and then he went to the office of the aforesaid agency, which was found closed. He also acquired information from newspaper that the aforesaid bank was a bogus entity. He deposed that cheque of Rs. 150/- received from Adarsh Welfare Portfolio was handed over by him to IO and same was seized by State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 10 seizure memo Ex. PW 4/A. He identified the aforesaid cheque and same is Ex. PW 4/B. He was also cross examined by ld. APP for the State and has admitted that he informed the IO that the fees of Rs. 150/- along with application form of his wife was deposited by him and same has been incorrectly mentioned as Rs. 275/- in his examination in chief due to lapse of time. During his cross examination by ld. Defence counsel, he deposed that the information about the vacancies was received by him from the shop vendors who used to sell the application forms. He stated that he and his wife joined the investigation in the year 1999 but he could not state about the exact date, time and month when they joined the investigation. He admitted that no statement of his wife was recorded by police. He stated that no returning memo regarding the dishonor of cheque Ex. PW 4/B was issued by the concerned bank.
13. PW 5 Jawan Mal Mobarsa deposed that in the year 1998-1999, he purchased an application form for the job in Corporation Bank. He could not state about the full name of the bank. He deposed that he filled the form and attached documents along with requisite fees. He could not state about of fees and stated that it might be Rs. 50/-, Rs.100/- or Rs. 150/-. He could not state about the address to which the application form was sent. Thereafter, he was also cross examined by ld. APP for the State and stated that in May 1998, the job application form was purchased by him from a pedestrian vendor. He affirmed that the fact of having attached fee in the form of bank draft of either Rs. 25/- of Rs. 75/- along with the said application form has been mentioned in his statement u/s 161 Cr. PC. He affirmed of having narrated to police that he received a letter along with a cheque of either Rs. 25/- or Rs. 75/-, stating that the bank could not be opened due to some reasons and the job vacancies were cancelled. He denied that aforesaid cheque was taken to Vijaya Bank for State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 11 encashment. He admitted of having informed the police that the cheque and the letter received by him are not traceable. During his cross- examination by ld. Defence Counsel, he could not state about the date, time, month and year when he joined the investigation. He stated that the statement was given by him to IO in his own handwriting. He admitted that statement Mark-5A is not in his handwriting. He admitted that he has not handed over the intimation letter stating that the bank shall not be operational and the vacancies have been cancelled to the IO of the case. He denied that no statement was made by him to the IO.
14. PW-6 Raj Kumar turned hostile by stating that he does not know anything about the present case. Thereafter, he was cross examined by ld. APP for the State and admitted that on 22.06.1999, he purchased a form from ITO from a pedestrian vendor. Thereafter, he applied for job application in National Urban Cooperative Bank and filled the form by attaching a Bank Draft, which was sent through post at Adarsh Welfare Portfolio. Thereafter, he could not know anything regarding the above- mentioned vacancies or about the examination or interview of the same. He denied that he was called at police station and he informed the IO that he was cheated by way of the aforesaid advertisement letter. He denied that his statement was recorded by the IO.
15. PW-7 Mahesh Chand deposed that in the year 1998 he came to know about the advertisement and filled a form for job vacancy. He could not state whether he filled any application fee draft with the application form. Thereafter, he was also cross examined by ld. APP for the State and admitted that the aforesaid application form pertained to job in National Urban Cooperative Bank and same was purchased from a pedestrian State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 12 vendor. He admitted that the form was sent by him at Adarsh Welfare Portfolio and also that he came to know from police that the aforesaid advertisement and job vacancies are fake. During his cross examination by ld. Defence Counsel, he stated that no complaint was made by him with police nor he ever visited the address to which the application form was sent. He could not state whether he signed any documents when he was called at PS Janak Puri.
16. PW-8 Anil Kumar deposed that in the year 1997 - 1998, he came to know about the advertisement pursuant to which he purchased job application form pertaining to Urban Cooperative Bank from a pedestrian vendor. The aforesaid form was filled by him and was sent to Adarsh Portfolio. He never received any response letter from the above-said bank. He could not state whether he filled any application fee draft with the application form or not. He deposed that he came to know from police officials that the said advertisement and job vacancies are fake. Thereafter, he was also cross examined by ld. APP for the State and admitted that IO recorded his statement u/s 161 Cr. PC. During cross- examination by ld. Defence Counsel, he could not state about the place from where he brought the job application for nor could state about the post for which he had applied. He also could not state whether he sent the form through post or deposited the same by hand. He deposed that his statement was recorded by police but he could not state whether he had gone through the contents of the same or not.
17. PW-9 Sanjay Kumar deposed that around 18-19 years back, he saw a newspaper advertisement and applied for job in a bank. He could not state about the name of bank due to lapse of time and deposed that after few months of applying for the job, when he did not receive any State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 13 letter, he went to the given address and found that company was fraudulent and same was closed. He could not affirm or deny that the name of aforesaid bank was National Urban Cooperative Bank. During his cross-examination, he admitted of not knowing anything about the accused persons.
18. PW -10 Sombir deposed that in year 1998 he bought one form from a street hawker at Najafgarh and after filling the said form, he attached bank drafts of Rs. 150/- and 200/- with it and submitted the same in the office situated at Janak Puri Red Light, Dhauli Piyau. He did not receive any call letter/ interview letter related to the form and after few months he received notice from the police. He could not state about the name of bank in which he applied for job. He also could not affirm or deny whether the name of bank was National Urban Cooperative Bank. During his cross-examination, he denied that he never joined the investigation of the case at any point of time.
19. PW-11 Subhash Chand deposed that he had applied for job and attached demand draft of Rs. 75/- along with the same. He deposed that he did not receive any call letter/ interview letter relating to the application. He could not state for about for the post which he applied. He deposed that he applied the job in Cooperative Bank situated near Dhauli Piyau. Thereafter, he was cross examined by ld. APP for the State but he could not state whether the name of bank in which he applied was Urban Cooperative Bank or not. During his cross-examination, he stated that police never called him to join the investigation of the case.
20. PW-12 H. Venkappa Hegde deposed that in year 1999, he was State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 14 posted as Senior Manager Vijaya Bank, Ansari Road, Delhi. He deposed that he does not know anything regarding the present case. He identified his signatures on seizure memo Ex. PW2/A stating that documents mentioned at point no. 1 to point no. 7 were handed over by him. He deposed that account opening form of account no. 2824 in the name of M/s Adarsh Welfare Portfolio is Ex. PW 12/B. The specimen signature card handed over by him is Ex. PW 12/C, all the cheques which he handed over are Ex. PW 12 (Colly.), statement of account of account no. 2824 w.e.f. 24.06.1996 to 02.07.1999 is Ex. PW 12/D, the board resolutions are Ex. PW 12/E and letter given by him to the IO is Ex. PW 12/G. During his cross-examination, he admitted that he is not having any personal knowledge regarding present case. He admitted that opening of bank account by a private limited company mandates submitting the memorandum of association, article of association, certificate of association along with account opening form. He also admitted that the above-mentioned documents are not on record of the present case. He could not state about the name of police official to whom the documents were handed over by him.
21. PW-13 ASI Krishan Pal deposed that on 25.06.1998, he was posted as constable at PS Janakpuri and was directed by Inspt. C. L. Jatav to accompany him to Manhiari Piyau. He deposed that he along with HC Rakesh, Ct. Vinod and Ct. Devender were also accompanying Inspt. C. L. Jatav to the aforesaid place and after reaching there, they went to third floor of the building where a bank was found. Thereafter, Inspt. C.L. Jatav conducted inquiry from the bank but they did not have any documents to prove that the bank was running lawfully. He deposed that thereafter they apprehended two accused persons namely Ramesh and State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 15 Anil Kumar. He deposed that the aforesaid police team took the accused persons to police station and Inspt. C.L. Jatav arrested them. He could not identify the accused persons namely, Anil and Ramesh due to lapse of time. Thereafter, he was also cross-examined by ld. APP for the State but he failed to identify the accused Ramesh and Anil stating that he is not able to recollect his memory as 20-22 years have already passed since that time.
22. PW-14 ASI Somdutt deposed that on 15.07.1999, he was called by the IO at the office of DIU where three letters were given to him for handing over to Harish, Surender Negi and Pankaj and thereafter, he went to the respective places of the above-named persons on 16.07.1999, 18.07.1999 and 19.07.1999.
23. PW-15 Mohd Zahir deposed that he does not know anything about the present case due to lapse of time. He was also cross examined by ld. APP for the State and admitted that in the year 1998, he was around 29- 30 years old. He stated that police never recorded his statement. He denied that a form was purchased by him from a vendor for applying to the post of clerk in cooperative bank. He also denied that he issued a cheque of Rs. 150/- and attached the same with the application form and sent it to cooperative Bank Dhauli Piyau Krishna Park. He also denied of having received a letter on 15.08.1998 from the aforesaid bank regarding the cancellation of appointment along with cheque of Rs. 150/-.
24. PW-16 Retired ASI Abdul Subhan deposed that on 21.06.1999, two complainants namely, Santosh and Shailender appeared before Inspt S. S. Hassan and produced the receipt of Rs. 150/- each which were State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 16 seized by the IO vide memo Ex. PW 4/A. He further deposed that on 11.10.1999, he visited the office of Registrar of Companies at Parliament Street along with Inspt C.L. Jatav and filed request for taking copies and documents and affidavits. The aforesaid documents were taken from office of ROC and were seized vide seizure memo Ex. PW 16/A. He further deposed that on 31.12.1999, he was present in the office and lady namely, Sushila produced certain documents i.e resignation letter from the company which was seized by the IO vide seizure memo Ex. PW 16/B. He was also cross examined by ld. APP for the State and admitted that the IO seized the cheque no. 149738 and 149754 of Rs. 150/- each vide seizure memos already Ex. PW 4/A and Ex. PW 16/C. During his cross-examination, he could not state who had signed the aforesaid two cheques and in whose favour they were issued. He admitted that there was no public person present when the IO seized the cheques. He could not state about the persons who had sworn affidavits which were taken from the office of ROC. He further stated that the complainant visited the office of DIU at different times. He could not state whether his statement was recorded by the IO or not. He admitted that there is an overwriting on the cheque Ex. PW 16/C. He could not state about the names of the persons who met him in the office of Registrar. He deposed that statement of Sushila was recorded by the IO.
25. PW-17 SI Rakesh Chand deposed that on 25.06.1999, he along with Ct Vinod , Ct Devender, Inspt C. L. Jatav and complainant H. N. Malhotra went to New Krishna Park, Dhauli Piyau for investigation and on the 3rd floor of building there was a bank with the name of National Urban Cooperative Bank which was illegally opened by the accused persons. He deposed that at the instance of complainant, accused Anil State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 17 Kumar Gautam and Rajesh were arrested. He identified the accused Anil Kumar Gautam in the Court. He further deposed that the seizure memo Ex. PW 23/L, and personal search memo of accused Anil Kumar Gautam Ex. PW 23/M were prepared in his presence and pursuant to disclosure made by accused Anil Kumar Gautam, the names of accused persons Rajesh Kataria, Jai Parkash were discovered. Thereafter, they went to Dhansa for searching accused Rajesh Kataria who was arrested from the aforesaid place. He stated that personal search of accused Rajesh Kataria was conducted vide memo Ex. PW 23/N and his disclosure statement Ex. PW 25/A was recorded. He also stated that accused Jai Parkash was arrested and his personal search memo Ex. PW 25/B was prepared. He deposed that the disclosure statement of accused Rajesh Kumar Kataria Ex. PW 23/K was prepared in his presence and specimen signatures of accused Rajesh Kumar Kataria Ex. PW 25/C were also taken in his presence. He further deposed that the specimen signatures of accused Anil Kumar Gautam Ex. PW 25/D were also taken in his presence. During his cross examination, he stated that the place where the alleged bank in question was run is a residential area and he got to know about the aforesaid place from complainant Malhotra, whose full name is not known to him. He stated that IO made inquiries from the persons present there but no one was ready to be part of investigation. He could not state whether he signed the arrest memo of accused Anil Kumar Gautam and Rajesh Kataria. He deposed that Inspt. Jatav took the specimen signatures of accused Anil Kumar Gautam and Rajesh Kataria in District Crime Cell, Janak Puri but he could not state whether IO recorded the statements of any independent witnesses at the time of taking the specimen signatures of above-named accused persons.
State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 18
26. PW-18 ASI Bajrangi Lal deposed that on 15.07.1999, he went to District Crime Cell, Vikas Puri and thereafter, on the instructions of senior officials he went to Alwar, Rajasthan for investigation of the case. He deposed that firstly, he went to village Harsana and inquired about one Mukesh Kumar whose statement was recorded and thereafter, he went to village Teen Ki Rudi and met Mahavir Prashad and recorded his statement. He deposed that thereafter he went to two other villages and recorded statements of two other persons and on 21.07.1999, he returned back to District Crime Cell and handed over the statements with the case diary to senior officers. During his cross examination, he stated that no written orders for conducting the investigation were given to him. He could not state about the name of officer who assigned the investigation to him for going to Alwar Rajasthan. He could not state about the time when he reached Alwar. He could not state about the exact time when he recorded the statements of Mahavir and Mukesh. He could not state whether any entries regarding his departure and arrival have been placed on record along with the charge sheet.
27. PW-19 Retired ACP S.S. Bhalla deposed that on 31.08.1999, further investigation was marked to him and he conducted the local inquiries but he could not find any sustainable evidence. Thereafter, he got transferred and further investigation of the case was handed over to someone else.
28. PW-20 Retired SI Om Parkash deposed that on 25.07.1999, the investigation of the case was marked to him at the instance of Insp. C. L. Jatav and thereafter, he went to House no. 6/65 Kothi Lank Ram, Kavya Niketan, Aligarh U. P. and recorded the statement of person namely, State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 19 Abhishek. During his cross-examination, he could not state whether he met any other person in the house of above-named Abhishek or not.
29. PW-21 Retired ACP S. S. Hassan deposed that on 01.02.1999, further investigation of the present case was marked to him and during the course of investigation conducted by him, he went to Vijaya Bank for collecting documents of account no. 2824 but the said bank was found closed on that day. He deposed that there were eight members of committee of bank and he made efforts for tracing them but they could not be found. He deposed that he met lady namely, Sushila who was also the member of committee and she was made to join the investigation. He further deposed that on 21.06.1999, complainants Asha Rani and Santosh came to PS Vikas Puri and gave their statements. They also produced one cheque each bearing no. 149738 and 149754 which were seized by him. He further deposed that during investigation, he recorded the statements of other witnesses, who had sent drafts to the accused persons and he also sent HC Abdul Subhan at Vijay Bank, Daryaganj for collecting the detailed report of bank account. He deposed that the report regarding the bank account no. 2824 was collected by him from the concerned bank and on 15.07.2019, the investigation was transferred to Inspt. C. L. Jatav. During his cross-examination, he could not state whether any notice for joining investigation was served upon Sushila or not. He denied that cheques were not produced by Asha Rani and Santosh Kumar. He admitted that no notice was served upon the manager of Vijay Bank for providing the documents relating to account no. 2824. He further stated that he never called the owner of premises from where the bank and the placement agency was run nor recorded the statement of said owner. He deposed that the cheques were not sent by him to FSL. He stated that State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 20 account no. 2824 was in the name of Adarsh Welfare Portfolio but he could not state who opened the same.
30. PW-22 SI Bhoop Singh is a formal witness, who deposed that the present FIR Ex. PW 22/A was registered by him vide endorsement on complaint Ex. PW 1/A.
31. PW-23 ASI Devender deposed that on 26.07.1999, he joined the investigation with the IO Inspt. C. L. Jatav and in his presence, accused Rajesh Kataria, Anil, Shankar Lal and some other accused persons were arrested by the IO. He deposed that the specimen handwriting of accused Om Narain, Ramesh Chander, Rajesh Kumar, Shankar Lal, Rajesh Kataria and Sunil Kumar which are Ex. PW 23/A to Ex PW 23/F were taken by the IO in his presence. He further deposed that the personal search memo of accused Shankar Lal, Rajesh Kumar and Om Narain which are Ex. PW 23/G to Ex. PW 23/I respectively, were prepared in his presence. He also deposed that IO recorded the disclosure statements of accused Jai Parkash and Rajesh Kataria which are Ex. PW 23/J and Ex. PW 23/K respectively, in his presence and the seizure memo Ex. PW 23/L along with personal search memos of accused Anil Kumar and Rajesh Kumar which are Ex. PW 23/M and Ex. PW 23/N respectively were also prepared in his presence. He failed to identify any of the accused persons by their names. During his cross-examination, he admitted that the personal search memo of accused Anil Kumar Ex. PW 23/M was not prepared in his presence. He also admitted that personal search memo of accused Rajesh Kumar Ex. PW 23/N was not prepared in his presence. He denied that the specimen signature / handwriting of accused persons were not taken in his presence.
State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 21
32. PW-24 ASI Braham Dev deposed that on 23.07.1999, the investigation was marked to him and during investigation conducted by him, he recorded statements of Narender Kumar, Akash Deep, Ghanshyam and Mahipal.
33. PW-25 Surender Narang is the Assistant Registrar from the office of Registrar of Cooperative Societies. He deposed that despite efforts, the record of Urban Cooperative Bank could not be traced out in any of the branches / sections of the office of Registrar and filed report Ex. PW 25/A in that regard.
34. Vide statement of Ld. APP for the State dated 07.07.2017, witnesses namely, Mahender Kaushik, Mushi Lal, Harish Kumar, Surender Singh Negi , Pankaj Kumar, Mukesh, Mahavir, Mahender Singh, Abhishek, Mahipal Singh, Narender Kumar, Akash Deep, Ghanshyam, Mahipal s/o Mohan Lal and Uttama Nayak were dropped from list of witnesses, their testimonies being repetitive in nature.
35. This is the entire evidence on case record.
36. Having discussed the testimonies of prosecution witnesses, now let us advert ourselves to the merits of the present case.
37. The allegations against accused persons pertains to offense u/s 420/468/471/120B/34 IPC.
38. It is pertinent to mention that the accused persons have been indicted for the offences u/s 420/468/471 IPC with the aid of Section State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 22 120B or Section 34 IPC as the case may be. So far as the provision u/s 120B IPC is concerned, it is worthwhile to state that this provision not only lays down a principal of joint criminal liability but it also creates a substantive offence under the scheme of IPC. Precisely, it has been alleged that all accused persons in furtherance of criminal conspiracy with each other initiated the process for registration of National Urban Cooperative Bank Ltd. under the Societies Registration Act and before finalizing the registration process of the aforesaid body, they with an intention to defraud the public at large notified the vacancies for different posts in the aforesaid bank. It is also in the allegations that the proposed accused persons invited the applications for posts against 65 different vacancies of staff in the aforesaid bank vide newspaper advertisement dated 26.04.1998 published in newspaper "The Aaj". It is also in the allegations that the aforesaid applications for vacancies were invited by the accused persons through a fictitious placement agency under the name and style of M/s Adarsh Welfare Portfolio India Ltd. The allegations are also to the extent that the accused persons while posing themselves as directors of the aforesaid bank made proposal for selling the equity shares of the bank by making false declaration to the extent that the bank comprises three directors of RBI and five directors of Delhi Government as its members and have usurped the money received by them from the innocent public persons who made applications for the notified vacancies and shares subscription in the aforesaid bank floated by the accused persons.
39. In this regard, it is pertinent to mention that the offence of criminal conspiracy has been made as an act indictable under law by virtue of Section 120B IPC. The position of law with respect to the offence of State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 23 criminal conspiracy is discussed here-in-after;
A conspiracy generally is hatched in secrecy. It is very difficult to adduce direct evidence thereto. Often, the prosecution relies on evidence of various acts of the parties as parts of the conspiracy to infer their complicity to commit the particular crime. The prosecution therefore would almost necessarily adduce circumstantial evidence. As a rule of evidence, it is well established that the conspiracy can be proved by direct or circumstantial evidence but there is a pregnant obligation upon the court to inquire whether the parties to the conspiracy were pursuing the same end.
In the case of State (NCT of Delhi) v. Navjot Sandhu, AIR 2005 SC 3820, it was held that a few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy.
Also, in the case of State of Maharashtra & Ors. v. Som Nath Thapa &Ors., (1996) 4 SCC 659, it was observed that for a person to conspire with another, he must have knowledge of what the co-conspirators were wanting to achieve and thereafter having the intent to further the illegal act takes recourse to a course of conduct to achieve the illegal end or facilitate its accomplishment.
In Subramaniam Swamy v. A Raja, (2012) 9 SCC 257, it was held that, suspicion cannot take the place of legal proof and existence of a meeting between the accused persons is not by itself sufficient to infer the existence of criminal conspiracy.
40. It has never been easy to get direct evidence for proving an offence under Section 120-A, which defines criminal conspiracy. Considering this fact, Section 10 of the Indian Evidence Act comes into play. This section can be divided into two parts, firstly, where there is reasonable ground to State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 24 believe that two or more persons have conspired to commit an offence or an actionable wrong. Only when this condition precedent is satisfied, the second part of the section comes into operation i.e. anything said, done or written by any one of such persons in reference to the common intention after the time when such intention was first entertained by any one of them is a relevant fact against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy.
It is therefore necessary that a prima facie case of conspiracy has to be established for application of Section 10. The second part of section permits the use of evidence which otherwise could not be used against the accused person (References drawn from Sardar Sardul Singh Caveeshar v. State of Maharashtra [(1964) 2 SCR 378)
41. In the present case, the complainant / PW-1 has clearly ruled out that he was either previously known or acquainted with the accused persons or that he has received any complaint from any quarter wherein the names of the accused persons were mentioned. Rather, the testimony of PW-1 reflects that upon a concern raised by one of staffer of RBI Canteen, he deputed PW-2 for making discrete inquiries with respect to the status of National Urban Cooperative Bank and thereafter, PW-2 conducted such inquiry and found out that the aforesaid bank was not registered under the Societies Registration Act and also that the office of Adarsh Welfare Portfolio India was being run from the same premises from where the bank was operated. It is worthwhile to mention herein that during his deposition, PW-2 has failed to identify any of the accused persons in Court. He even though stated that the bank and aforesaid placement agency were found to be bogus but again he failed to identify State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 25 the accused persons as any of the promoters/ directors/ office bearers of the bank or the placement agency so as to establish the complicity of accused persons in the alleged offence. Further, even though the other material prosecution witness i.e. PW-3, PW-4, PW-5, PW-6, PW-7, PW-8, PW-9, PW-10, PW-11 and PW-15 have stated that they had applied for the posts against the notified vacancies in the National Urban Cooperative Bank and have also sent the application fees in the form of bank drafts but none of the afore-named witnesses have identified the accused persons as the Office bearers / Directors/Promoters of Bank or the Placement Agency. Pertinently, prosecution is relying upon the evidence in the nature of the cheques which were allegedly received by PW-4 along with one Santosh from Adarsh Welfare Portfolio Ltd. towards the return of the amount of application fees so deposited by them but again, from the testimonies of PW-4 along with PW-16 and PW-21, it clearly surfaces that the recoveries of the aforesaid cheques from the above-named witnesses Shailender and Santosh have not been established by the prosecution. There is no justification about the circumstances under which the aforesaid recoveries were not made in presence of independent public persons despite their availability and hence ,the aforesaid recoveries cannot be said to have been established by the prosecution. Even assuming the fact that the aforesaid cheques so sent by the Adarsh Welfare Portfolio allegedly bearing the signatures of accused Anil Kumar Gautam as its Chariman / Managing Director were sent to the afore-named persons towards the return of the amount of application fees deposited by them but again, there is no other evidence led by the prosecution for establishing that the aforesaid cheques were sent by the accused Anil Kumar Gautam by acting in furtherance of criminal conspiracy with the other accused persons. There does not exist any State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 26 direct or circumstantial evidence on record to establish beyond all reasonable doubts that accused persons have conspired with each other to deceive the complainant and several other persons. There has to be some material on record for connecting the accused persons with each other or to establish necessary nexus between them to hold them liable with the aid of section 120B IPC but such evidences are clearly missing in the present case, therefore, in the considered view of this Court, the joint liability for the alleged offences cannot be fastened upon the accused persons with the aid of section 120B IPC.
42. As the accused persons have also been charged for the offences u/s 420/468/471 IPC with the aid of Section 34 IPC, hence it is necessary to delve into the discussion regarding the provision of section 34 IPC and the evidences led by the prosecution in that regard. Pertinently, Section 34 IPC also creates a principal of joint criminal liability and this provision is stricter than section 120B IPC. To bring home the charge of common intention, prosecution has to establish by evidence, whether direct or circumstantial that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34 IPC, be it a pre-arranged plan or plan made on the spur of moment but it must necessarily be formed before the commission of crime. Section 34 IPC does not lay down any distinct offence and rather it is a rule of evidence. This provision also does not mandate actual commission of any overt act by any of the member of the party who has formulated the plan for committing an offence. In the present case, the discussion made in the preceding part of this judgment makes it amply clear that except the bald allegations to the extent the accused persons have indulged in the alleged acts of cheating, fabrication of documents State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 27 and using false documents as genuine by acting in furtherance of criminal conspiracy or common intention between them, there are no clinching evidences led by the prosecution in that regard and hence, in the considered view of this Court, the joint liability cannot be fastened upon the accused persons even with the aid of Section 34 IPC.
43. Moving further, the other allegations against accused pertains to offences u/s 420, 468 and 471 IPC. So far as the allegations qua offence u/s 420 IPC are concerned, it is pertinent to state that the accused persons have been charge sheeted for this offense on the premise that they in furtherance of criminal conspiracy or common intention with each other have invited the applications for vacancies in the proposed National Urban Cooperative Bank Ltd. and have also issued a public issue for share subscription in the bank by endorsing that its directors constituted the members from RBI and Delhi Government and thereby usurped the money of the innocent applicants which was paid towards the aforesaid job applications and share subscription by them.
44. The discussion made in the preceding part of the judgment clearly suggests that there is no iota of evidence on record to establish the criminal conspiracy or the common intention inter-se the accused persons, therefore, the accused persons cannot be held liable for the offence u/s 420 IPC with the aid of either Section 120B IPC or Section 34 IPC. However, assumingly that there was some element of criminal conspiracy inter-se the accused persons to commit the offense of cheating or that there was a common intention entertained by the accused persons for committing such offences, then also necessary ingredients for constituting such an offence have not been fulfilled in the present case. It State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 28 was incumbent upon the part of prosecution to establish the following for successfully establishing the commission of offence u/s 420 IPC by the accused persons :-
a.) That all the accused persons have initiated the process for registration of National Urban Cooperative Bank Ltd under Societies Registration Act b.) That the accused persons also formed a fake placement agency under the name and style of M/s Adarsh Welfare Portfolio India Pvt. Ltd. c.) That the accused persons invited the applications for 465 posts in the aforesaid proposed bank while its registration was pending. d.) That the aforesaid applications were invited through the placement agency namely, Adarsh Welfare Portfolio India Ltd.
e.) That the accused persons also notified public issue of share subscription in the aforesaid proposed bank by making a false declaration that three of the members of bank were directors from RBI and five of the members were the directors from Delhi Government.
45. In the present case, from the testimony of PW-1 and PW-2, it is clearly perceivable that both the above-named witnesses have failed to state about the source of the information derived by them, from which they gathered about the alleged advertisement for vacancies and invitation for share subscription in the proposed bank allegedly floated by the accused persons. It is an undisputed fact that there is no identification of any of accused persons as the Directors / Promoters of the Bank or Office bearers of the Placement Agency vide the testimonies of PW-1, PW-2, PW-3, PW-4, PW-5, PW-6 , PW-7, PW-8, PW-9, PW-10, PW-11 and PW-15. The only evidence relied upon by the prosecution to establish State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 29 that the accused persons were the Promoters / Office bearers of the aforesaid Bank / Placement Agency is the report dated 16.06.2000 given by the GEQD Hyderabad with respect to the analysis and comparison of the questioned documents along with the specimen handwriting and signatures of accused persons. It is evident from the record that during investigation, the alleged cheques containing signatures of accused Anil Kumar Gautam which were sent to the applicants towards the return of the application fees deposited by them, the bank account opening form pertaining to Adarsh Welfare Portfolio, signature card pertaining to Adarsh Welfare Portfolio, the affidavits of promoters which were submitted along with the application for registration of National Urban Cooperative Bank with Registrar of Societies, the approval of proposal, format model scheme, resolution for formulation of society, resolution for appointing chief promoters, self attested identity related documents submitted by the promoters of the bank were sent to GEQD, Hyderabad for comparison and analysis with specimen/ handwriting of accused persons. As per the aforesaid report received from GEQD, Hyderabad, upon examination of the questioned and specimen documents, certain similarities were found and it was opined that the signatures of accused persons on the questioned documents tallied with their specimen signatures. It is worthwhile to mention that even though the as per the expressed provision of section 293 Cr. PC, the aforesaid report of GEQD appears to be a document not requiring a formal proof thereof but in the considered opinion of this Court, the examination of authors of such report namely Sh. D. D. Goel and Sh. Narender Singh, the then Government Examiners of Questioned Documents was necessary in the present case in accordance with section 293(2) Cr. PC as the accused persons have raised disputes regarding giving any specimen handwriting / State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 30 signatures to the IO during the investigation and hence, it was necessary to ascertain from the above-named scientific experts from the office of GEQD that as to which of the questioned documents matched with the handwriting/ signatures of accused persons on the admitted / specimen documents. However, it is a matter of record that the afore-named scientific experts were never examined and witnesses in the present case and the reasons for such crucial omissions have also not been explained by the prosecution, hence due to these reasons aforesaid report of GEQD cannot be relied upon to hold the accused persons liable for alleged offences. It has also not been explained by the prosecution as to why no efforts were made by the IO during the course of investigation for collecting the job application forms and applications for share subscription in the aforesaid proposed bank by the so called innocent public persons and send the same for comparison and analysis along with the specimen handwriting / signatures of aforesaid public persons, so as to alternatively establish that the said persons in fact made the job applications and applications for share subscription in the proposed bank allegedly floated by the accused persons, therefore, due to such reasons also, the commission of alleged offence in question cannot be said to be established by the prosecution. Besides, case of prosecution to the extent that the National Urban Cooperative Bank Ltd was an unregistered entity, also falls flat due to the reason that testimony of PW-25, who is the Assistant Registrar from the office Registrar of Cooperative Societies has not substantiated the aforesaid claim of prosecution. More specifically, it has come in the testimony of PW-25 that the records relating to the application and documents made on behalf of the National Urban Cooperative Bank Ltd. for its registration as a society could not be traced out in the office of concerned Sub-Registrar, as also evident from report State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 31 Ex. PW 25/A. In the absence of any evidence to the extent that at the time of when the alleged newspaper advertisement reflecting the invitation for vacancies in the National Urban Cooperative Bank Ltd. or for subscribing the shares of the National Urban Cooperative Bank Ltd were issued, the aforesaid bank was not a registered entity, the allegations leveled by the prosecution cannot be said to have been established.
Hence, in the considered view of this Court, the prosecution has failed to establish the fact that the National Urban Cooperative Bank Ltd. was a unregistered body having invited the applications for filling 465 vacancies along with applications for its share subscription. The prosecution has also failed to establish the necessary linkage between the accused persons, proposed bank and placement agency, hence the conditions as mentioned at Point no. (a) to (d) above have not been established in the present case. Accordingly, the accused persons cannot be held liable for offence u/s 420 IPC.
46. The accused persons have also been indicted for offences u/s 468 and 471 IPC. As evident from the discussion made above that the prosecution has failed to establish the existence of any criminal conspiracy or common intention between the accused persons through any convincing evidences, hence, the joint liability for the offences u/s 468 and 471 IPC cannot be fastened upon the accused persons with the aid of section 120B or Section 34 IPC, as the case may be. However, proceeding on an assumption that the prosecution was successful in establishing the existence of some element of criminal conspiracy or a criminal design/ plan between the accused persons for committing the offences u/s 468 and 471 IPC, still the case of prosecution has not been successfully established due to the reasons which are being discussed State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 32 hereinafter. Pertinently, Section 468 IPC deals with the offence of forgery for the purpose of cheating. In order to hold a person liable for offence u/s 468 IPC, the prosecution is duty bound to establish the following essential conditions :-
a.) That the accused has committed the act of forgery of a document or an electronic record. The forgery of document has been defined under section 463 IPC.
b.) That the act of forgery of document or an electronic record is committed by the accused for the purpose of using it to commit the offence of cheating.
47. Section 468 IPC specifically targets the individuals who create false documents with an intent to use the same for cheating others. The critical element here is the intention behind the forgery which is to deceive and cause harm, typically in the context of financial or personal gain. Under this provision, forgery involves creating or altering the documents to make them appear different from what they actually are, with the intention of using them in deceptive practices that leads to cheating.
48. Whereas, section 471 of IPC makes the dishonest and fraudulent act of using forged document as genuine. In order hold a person liable for offense u/s 471 IPC, the prosecution has to precisely establish two conditions. First, that the document or electronic record was a forged document and the said fact was within the knowledge of the user of document and second that the person having such forged electronic record or document uses the same so as to cause wrongful loss to another person and wrongful gain to himself.
State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 33
49. In the present case, in order to establish commission of offences u/s 468 and 471 IPC, the prosecution was required to establish the following facts which are as under :-
i.) That the accused persons have issued the public issue for inviting share subscription in National Urban Cooperative Bank Ltd vide newspaper advertisement.
ii.) That the aforesaid newspaper advertisement along with the public issue for inviting share subscription in the National Urban Cooperative Bank Ltd. was issued by the accused persons with the false endorsement / declaration on the share subscription form that the members of the National Urban Cooperative Bank Ltd. comprised of three directors from RBI and five directors from Delhi Government as its members.
50. The discussion made in the preceding part of judgment clearly rules out that there is any evidence on record for establishing the offence of cheating by the accused persons, hence the case of prosecution with respect offence u/s 468 IPC stands not proved for the aforesaid sole reason, as in order to hold a person liable for offence u/s 468 IPC, it is necessary to establish that the alleged fabrication of documents or electronic records were done by the said person for the purpose of cheating the others. For the sake of proceeding ahead with the discussion, even if it is assumed that there was some element of cheating established by the prosecution, then also the other necessary conditions for constituting the offences u/s 468 and 471 IPC are not fulfilled in the present case. The premise on which the prosecution has based its allegations against accused persons is that the accused persons have invited the applications for share subscription in the National Urban Cooperative Bank Ltd. with the false declaration/ representation that the State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 34 members of the bank comprises three directors from RBI and five directors from Delhi Government. The impugned share subscription application form has been placed on record in the document Ex. P1(Colly.) and it is an undisputed fact that the aforesaid form is a blank document. It has not been disputed by PW-1 that the aforesaid impugned form has not been filled or signed by anyone. The testimony of PW-1 also speaks that the aforesaid impugned form was brought by his staff official / PW-2 H. N. Malhotra stating that same was recovered from the office of the Adarsh Welfare Portfolio India ltd. It is a matter of record that PW-2 during his deposition has failed to identify any of the accused persons as the members or office bearers of the National Urban Cooperative Bank Ltd. or Adarsh Welfare Portfolio India Ltd. There is no evidence establishing any linkage between the accused persons and the aforesaid placement agency Adarsh Welfare Portfolio India Ltd. Undisputedly, the impugned share subscription form pertaining to National Urban Cooperative Bank Ltd. bearing the declaration that its members comprised of three directors from RBI and five directors from Delhi Government does not bear the handwriting or signatures of any of the accused persons. The prosecution has not led any evidence for establishing that the impugned newspaper advertisement inviting the applications for share subscription in National Urban Cooperative Bank Ltd. were published by or at the instance of accused persons in the given newspapers. The investigating agency has failed to examine any of the officials from the office of concerned newspapers so as to establish that the aforesaid advertisements were published in the newspapers at the instance of accused persons. The investigating agency has also failed to collect any evidence to the extent that the impugned share subscription form pertaining to National Urban Cooperative Bank Ltd. was printed by State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 35 the accused persons or at their behest. In the considered view of this Court, there is no evidence on record showing that the accused persons have fabricated the impugned application form inviting the share subscription in the National Urban Cooperative Bank Ltd. with false declaration that the members of bank comprised of three directors from RBI and five directors from Delhi Government. The prosecution has also failed to establish through any cogent and clinching evidences that the accused persons have dishonestly used the aforesaid impugned application form for share subscription in National Urban Cooperative Bank Ltd. by way of newspaper advertisement for such share subscription in the bank and hence, the accused persons cannot be held liable for offences u/s 468 and 471 IPC .
51. The discussion made above is clearly suggestive of the fact that the prosecution has miserably failed to establish beyond all reasonable doubts that all the accused persons in furtherance of criminal conspiracy or common intention with each other have initiated the process for registration of National Urban Cooperative Bank Ltd. under the Societies Registration Act and prior to completion of the registration process, they invited the vacancies for 465 posts in the proposed bank. The prosecution has also failed to establish beyond all reasonable doubts that all the accused persons in furtherance of criminal conspiracy or common intention with each other have also floated a public issue for share subscription in National Urban Cooperative Bank Ltd. vide a newspaper advertisement with a false declaration that the members of the bank comprised of three directors from RBI and four directors from Delhi Government. The prosecution has also failed to establish beyond all reasonable doubts that the accused persons have usurped the money of State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 36 innocent public persons which was paid by them towards the amount of application fees for the notified vacancies and towards the share subscription applications in National Urban Cooperative Bank Ltd. Hence, all the accused persons deserve to be acquitted for the alleged offences. Accordingly, accused persons namely, Anil Kumar Gautam, Rajesh Kumar Kataria, Jai Parkash Kataria, Shanker Lal, Rajesh s/o Kishori Lal, Om Narain and Ramesh Chander are hereby acquitted for the offences u/s 420,468,471 r/w Section 120B/34 IPC.
Announced in the open Court On 07.12.2024 (Rishabh Kapoor) JMFC-05 South West District Dwarka Courts, Delhi State Vs.: Anil Kumar Gautam & Ors. FIR No : 397/1998 U/s : 420/468/471/120B/34 IPC P.S.: Vikas Puri 37