Delhi District Court
Cbi vs A1. C M Vasudeva on 12 February, 2016
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI
CBI No. 53/11
FIR No. RC. SIA2002E0001
Under Sections 120B r/w S.420, 465, 477A IPC and
Section 13 (2) r/w 13 (1) (d) of P.C. Act, 1988.
CBI
Versus
A1. C M Vasudeva
S/o Sh. H D Vasudeva
R/o C3/414, Janakpuri, New Delhi.
A2 P K Sharma
S/o Late Sh. Deep Chand Sharma
R/o S32, Greater Kailash,
Part1, New Delhi.
A3 M/s Kuber Mutual Benefits Limited
through its Director Sh. P K Sharma
R/o S32, Greater Kailash,
Part1, New Delhi.
A4 M/s Kuber Planters Ltd.
through its Director Sh. P K Sharma
R/o S32, Greater Kailash,
Part1, New Delhi. ......Accused
Date of reserving of judgment : 27.01.2016
Date of pronouncement of judgment : 12.02.2016
CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 1
J U D G M E N T
I CASE OF THE PROSECUTION :
1. The present case was registered on a written complaint dated 27.02.2002 of Sh. A. K. Mishra, General Manager & Chief Vigilance Officer, Oriental Bank of Commerce (in short 'OBC'), Head Office, New Delhi against the accused. Shri C.M. Vasudeva (A1) was the then Branch Manager, OBC, Greater Kailash PartII Branch, New Delhi. Shri P. K. Sharma (A2), Chairman of Kuber Group of Companies, was one of the Directors of M/s Kuber Mutual Benefits Ltd. (in short 'KMBL') (A3) & M/s Kuber Planters Ltd. (in short 'KPL') (A4) and was the sole proprietor of M/s Kuber Builders (in short 'KB').
2. The case of the prosecution, in brief, is that A1 in criminal conspiracy with A2 deleted the seizure instructions by using his User ID and dishonestly renewed 17 CDRs out of the 40 CDRs which were seized by the Income Tax Department during a raid at the residential premises of A2 on 08.05.1997. Further, he had sanctioned overdraft (in short 'OD') limits to the extent of Rs.14.23 crores against the renewed CDRs and thereby conferred undue gain to the extent of Rs.14.23 crores and corresponding loss to OBC.
3. It is further the case of the prosecution that during the period from 1997 to 2000, A1 created false process notes in favour of A2, A3 and A4 without any securities. A1 dishonestly and CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 2 fraudulently allowed accrued interest on 26 CDRs of KPL, seized by the Income Tax Department on 08.05.1997 without request for renewal of the said CDRs either by the Income Tax Department or by the depositors. A1 created 2 CDRs in the name of KBML on 29.08.1998 and thereby conferred undue advantage to the extent of Rs. 83.43 lacs. 17 CDRs out of aforesaid 40 CDRs were renewed on different dates and A1 showed these renewed CDRs as security against OD facilities which were dishonestly sanctioned and released by him earlier and thereby caused loss to the Bank to the extent of Rs. 1.38 crores.
4. It is further the case of the prosecution that A1 on 16.09.1998 falsely recommended the proposal of A2 which was submitted on behalf of KBML for issuance of Bank Guarantee for Rs. 14.50 crores favouring Income Tax Department for getting the CDRs released. This proposal was turned down by the Head Office of the OBC.
5. Further, the case of the CBI is that the deposits under the seizure of Income Tax Department could only be renewed as per the Circular No. P&D/36/91/116 dated 29.07.1991 on the request of the depositor and also after renewal of the CDRs and it was further mentioned that accrued interest shall not be paid if the deposits are not renewed. A1 got prepared two CDRs bearing nos. 105968 and 105976 for Rs.49,77,250/ and Rs.33,66,440/ respectively in the CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 3 name of KMBL (A3) as interest due in respect of 26 CDRs out of seized 40 CDRs of KPL. The factum of payment of interest/creation of two CDRs was not informed to the Income Tax Department in contravention to order dated 08.05.1997.
6. It is further the case of the prosecution that A1, on the request dated 19.03.1999 of A2 for renewal of CDRs which were in possession of Income Tax Department, deleted the stop operation instructions of Income Tax Department in respect of 17 CDRs on different dates. A1 renewed the aforesaid 17 CDRs in violation of order dated 08.05.1997 and also prepared the nine CDRs against the aforesaid 17 CDRs. However, the said seizure instructions were neither reentered nor any endorsement to such effect was made by him in the Bank's record to falsify the Bank record. As per CBI, A1 had sanctioned the said OD limit beyond his discretionary powers (as per the delegation of powers issued by the Bank vide Circular No. HO/Adv./35/9798/250 dated 27.11.1997) during the period 23.07.1998 to 12.09.1998 by abusing his official position as public servant and acted in the manner which was prejudicial to the interest of the Bank. Due to acts of commissions on the part of the accused, the Bank was put to a total wrongful loss of Rs.14.23 crores approx. and corresponding gain to KMBL (A3), KPL (A4) & KB.
7. Sanction for prosecution was obtained against A1 from the Competent Authority.
CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 4
8. After the investigation, chargesheet was filed in the Court against all the accused for committing offences punishable under Prevention of Corruption Act, 1988 (in short 'PC Act') and Indian Penal Code, 1860 (in short 'IPC').
II. CHARGES FRAMED :
9. On the above allegations, Smt. Indermeet K. Kochhar, Ld. Spl. Judge CBI, (as her ladyship then was) framed charges on 31.07.2006 against the accused as under:
(i) A1 : S. 420/465/477A IPC and 13 (2) r/w S.13 (1) (d) of P. C. Act (ii) A2, A3 & A4 : S.420, 468 r/w S.471 IPC (iii) All accused : S.120B r/w S. 420, 465, 477A, 468 r/w 471 IPC and S.13 (2) r/w S.13 (1) (d) of P.C. Act.
The accused pleaded not guilty and claimed trial. They were accordingly put to trial.
III. PROSECUTION WITNESSES :
10. Trial proceeded and in the course of trial, the prosecution, in order to substantiate its case against the accused, examined forty three witnesses in all who may be clubbed in five groups for convenience. The five groups are as hereunder :
(a) Bank Witnesses
(b) Income Tax Officers
CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 5
(c) Search Witnesses
(d) CBI Officers.
(e) Others
(a) BANK WITNESSES:
PW2 A K Mishra
PW3 Azad
PW4 Amar Chand Gupta
PW5 Ravi Vohra
PW6 Harpal Singh Tanwar
PW8 Ms. Ruma Das Gupta
PW9 Ms. Reenu Nagpal
PW10 P K Mujal
PW11 Randhir Singh Deswal
PW12 A D Mehta
PW13 T R Lakhani
PW14 P K Gupta
PW15 V K Kamboj
PW16 Parbir Kumar Roy
PW17 Vinay Sagar Gupta
PW18 Hardeep Arora
PW19 Ramesh Chander Kohli
PW20 Mukesh Mehta
PW21 Mahesh Prasad
PW22 Ms. Poonam Ratnam
PW23 Surinder Kumar
PW24 Man Bahadur
PW25 Bhujender Kumar
PW27 Smt. Madhu Goswami
PW28 Bimal Kumar Bhatia
PW31 S K Verma
PW33 G R Piplani
PW35 C M Khurana
PW37 Rajesh Tandon
CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 6
11. PW2 Sh. A. K. Mishra has deposed that he was posted as Chief Vigilance Officer (CVO) in OBC and during his tenure a fraud relating to the accounts of Kuber Group of Companies had taken place at OBC, G. K.II Branch, New Delhi. On 08.05.1997 the Income Tax Department seized 40 term deposits amounting to Rs. 15.82 crores belonging to said Group of Companies and the Bank was also advised not to deal with these term deposits in any manner. These instructions were noted by the Branch in the computer system. However, the auditors, while conducting the audit, pointed out certain OD granted to Kuber Group of Companies against certain securities and they also pointed out that there was short fall in the securities pledged with the Bank. The Bank conducted an inquiry on its own and submitted a report dated 23.4.2001 mentioning therein that it was A1 who got renewed 17 CDRs of Kuber Group of Companies in violation of seizure instructions of Income Tax Department and allowed OD limits and, as such, it resulted in undue gains to Kuber Group of Companies while corresponding loss to the Bank. He proved his complaint to the CBI as Ex.PW2/A.
12. During his crossexamination he has admitted that he did not file the enquiry report dated 23.4.2001. He could not tell if the same is on Court record or not. He could not tell the dates on which seizure instructions were noted and deleted in the computer. He also CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 7 could not tell under which status code, the seizure instructions of Income Tax Department were noted. He has denied the suggestion that the averments made by him in his complaintEx.PW2/A are incorrect and are based on hearsay. He could not tell if status code no. 2 related to Income Tax seizure and attachment. He was shown document D145 (Ex.PW2/DB) and after going through the same he has admitted that status code no. 2 related to seizure and attachment. He has further admitted that Ex.PW2/DB does not refer to status code no. 2 but it mentions that the account was freezed in status code no. 9 which referred to part freezing of the account. He has further admitted that A1 joined as Branch Manager in October, 1997 and as per statement of accountsEx.PW2/DC, Ex.PW2/DD and Ex.PW2/DE relating to KBML, KB and KPL respectively, there are bothdebit and credit entries even in August/September, 1997. He could not tell whether the FDRs in this case were made only by debiting the current account or out of the interest accrued on the existing FDRs. After going through the documentsEx.PW2/D, PW2 admitted that TDR no. 79967 for Rs.75,00,000/ was prepared on 30.08.1997 but this TDR does not find mention in his complaint. He has admitted that sanction limit of A1 was upto Rs. 5 crores per borrower. As per this witness, Ex.PW2/DH prohibits the renewal of seized FDRs. He has further stated that A1 exceeded his discretionary power vested in him in the grant of OD to the Kuber Group of Companies. In nutshell, he CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 8 has claimed that A1 had the power to grant OD upto Rs.5 crores to the Kuber Group of Companies but he exceeded the same by granting OD of Rs.14.23 crores and, thereby, exceeded his discretionary power. He could not show any letter mentioning that the KBML, KPL and KB are the group companies. He feigned his ignorance if vide letter Ex.PW1/DF OD limit of Rs.17 crores was confirmed by the sanctioning authority on 25.9.1998. It was further admitted by PW2 that on 28.4.2001 there was an outstanding OD facility to the tune of Rs.14.23 crores in the Kuber Group of Companies and on the same date the Kuber Group of Companies was also maintaining term deposits to the tune of Rs.16.50 crores which were seized by the Income Tax Department.
13. PW3 Luv Azad was working as Officer GradeI, Loan Department, in OBC and has deposed that sanction limit of KPL was Rs.3.70 crores against security of Rs.3.15 crores. The CDR no. 130229 was changed to CDR no. 422426. He has proved the said CDR as Ex.PW3/A bearing signatures of A1. As per this witness, the limit was reduced from Rs.12 crores to Rs. 3.15 crores. He has also proved the agreement dated 29.12.1997 between the KPL and the Bank having the OD limit of Rs.12 crores as Ex.PW3/D. As regards KB, PW3 has deposed that the limit was reduced to Rs.4.75 crores from Rs. 7.50 crores vide sanction letterEx. PW 3/B. He has also proved the agreement dated 10.8.1996 between the KB and the Bank having the CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 9 OD limit as Rs.3.04 crores as Ex.PW3/C. As regards KMBL, he has deposed that agreement D178 between KMBL and the Bank is an incomplete document as its last page is missing whereupon A1 should have signed. Vide this document the limit was Rs.4 crores. He has proved the same as Ex.PW3/F.
14. During his crossexamination PW3 feigned his ignorance if CDRs/FDRs could be renewed in the absence of the originals. He was confronted in this regard with circular dated 29.07.1991 Ex.PW1/DE and after going through the same PW3 has admitted that FDR can be renewed at the request of the depositor. He was also confronted with documentEx.PW3/DA dated 19.3.1999 vide which request was made by the Chairman of Kuber Group of Companies for renewal of FDRs. It has been admitted by PW3 that though the CDRs were seized by the Income Tax Department, the money continued to remain with the Bank and the Bank was using this money and, as such, a party could not have withdrawn the CDR/FDR amount and it was a seizure on paper only.
15. PW4 Amar Chand Gupta was working as a Clerk in OBC during the relevant period. He has categorically stated that A1, the then Branch Manager, had not asked him to lift the lien/freezing instructions on the Kuber Group of Companies and he had not done so. He was declared hostile and was allowed to be crossexamined by Ld. PP for CBI. However, even after cross examination at length, nothing CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 10 incriminating has come out in evidence against the accused.
16. PW5 Sh. Ravi Vohra has deposed that pursuant to the orderEx.PW5/A issued by the Income Tax Department, the Bank was clearly instructed not to allow any operations in all the accounts of Kuber Group of Companies. The renewal of FDRs also could not have been done in view of the said order. However, A1 renewed 17 FDRs out of the total 40 FDRs seized by the Income Tax Department. The said 17 FDRs were renewed and clubbed. A1 issued 9 FDRs in different accounts of Kuber Group of Companies. Nine FDRs of KPL were clubbed and one CDR of Rs.4,09,78,519/(Ex.PW5/17) was issued on 16.10.2000. However, this witness could not tell as to why the other 23 FDRs were not renewed by A1. PW5 has further deposed that the foul play came to his notice at the time of audit of the Branch on 19.4.2001. As per this witness, videEx.PW3/J the limits were raised/sanctioned by A1 from time to time. The total securities available with the Branch were far less than the outstanding in various accounts of Kuber Group of Companies.
17. During his crossexamination PW5 could not tell under which status code the seizure by the Income Tax Department was noted in the Bank record. He also could not tell if the seizure was noted on 08.05.1997 or thereafter. He has further deposed that as per Ex.PW 1/DC, duplicate FDRs could not be issued in respect of the FDRs seized by Income Tax Department. He has admitted that when CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 11 this fraud came to light, he refused to mark lien on the 23 FDRs in April, 2001. He could not tell if properties worth Rs.50/ crores of Kuber Group of Companies were lying as additional security with the bank.
18. PW6 Harpal Singh Tanwar has deposed that in the year 19981999, A1 was the Branch Manager. From June, 1998, he (PW6) was posted as Loan Manager. On verbal instructions of A1, he marked the OD limit in the account of Kuber Group of Companies. The freezing Code No. 9 meant debit was not to be allowed. He proved the document in this regard as Ex.PW2/DB.
19. During his crossexamination he has deposed that A1 never told to defreeze the account as the freezing was not noted in the account.
20. PW8 Ruma Das Gupta has deposed that vouchersEx.PW 8/1 to Ex.PW8/119 bear signatures of A1. She has deposed that without original FDR, it could not have been renewed. This witness has proved the credit voucherEx.PW8/1 on the strength of which FDR no. 142723 was issued on 25.11.1999, after renewal of old FDR no. 66954. She has deposed that FDREx.PW8/120 bears the signatures of A1 and Luv Azad. She has further deposed that debit voucherEx.PW8/4 resulted in issuance of renewed FDREx.PW 8/35. Similarly, debit voucherEx.PW8/7 resulted in issuance of renewed FDREx.PW8/56. She has further deposed that in respect of CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 12 account no. 67688, an amount of Rs.26,26,563/ was sent in general ledger and the said amount related to all the FDRs issued by the Branch. She has proved the debit voucher in this respect as Ex.PW8/10. She has further deposed that in respect of account no. 61367, an amount of Rs.52,53,125/ was sent in general ledger and the said amount related to all the FDRs issued by the Branch. She has proved the debit voucher in this respect as Ex.PW8/14. She has further deposed that in respect of account no. (not mentioned) an amount of Rs.26,26,563/ was sent in general ledger and the said amount related to all the FDRs issued by the Branch. She has proved the debit voucher in this respect as Ex.PW8/15. As per this witness, Ex.PW8/27 is the credit voucher in respect of FDR no. 1230229 in the name of KPL, after debiting in general ledger an amount of Rs. 3,15,18,753/. She has proved the FDRs as Ex.PW3/K, Ex.PW8/121, Ex.PW8/122, Ex.PW8/123, Ex.PW8/124; debit vouchers as Ex.PW8/28, Ex.PW8/125, Ex.PW8/126 and TDS certificate Ex.PW8/127.
21. During her crossexamination she has deposed that circular Ex.PW1/DE never came to her knowledge. She has admitted that in respect of vouchers referred to in her examination in chief, only FDRs were renewed and no payments were made.
22. PW9 Ms. Reenu Nagpal has deposed that loan documentation register used to be prepared in the Branch. She has CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 13 identified the signatures of A1 on said registerEx.PW3/A1 for the period from 15.09.1998 till 11.2.2002. She has further deposed that on page 5 of said register, account of M/s Kuber Resort has been entered and Ex.PW3/G was prepared when the loan was granted to M/s Kuber Resorts. She has failed to identify the author of Ex.PW3/G as the said document did not pertain to her period of posting in the Branch. However, she has identified the signatures of A1 on Ex.PW3/G.
23. During her crossexamination she could not tell the name of the person who signed as loan officer on Ex.PW3/G.
24. The other PWs of this Group of witnesses are the Bank Officials who have deposed for the prosecution. The testimony of relevant witnesses will be discussed and evaluated at the appropriate places in the judgment under the heading 'Evaluation of Evidence and Findings'.
INCOME TAX OFFICERS PW7 Subhash Chand Chadha PW29 Sube Singh Kemwal PW36 Sharvan Kumar PW40 Anand Jha
25. PW7 Subhash Chand Chadha has deposed that he was posted as Income Tax Officer (Investigation), Jhandewalan, Delhi. On 08.05.1997, a search under Section 132 of Income Tax Act was conducted in OBC where Kuber Group of Companies were operating various accounts. About 40 CDRs were seized and the bank was CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 14 restrained vide letterEx.PW1/DC not to allow any transaction in respect of aforesaid FDRs. However, the Bank violated the instructions and issued duplicate FDRs to Kuber Group of Companies. On 16.05.1997, a letter was issued by him to Bank to ascertain as to why instructions issued by Income Tax Department were violated. He has also proved the letterEx.PW5/A written to the Bank asking it not to allow the operation of various bank accounts of Kuber Group of Companies.
26. During his crossexamination PW7 has admitted that in Ex.PW1/DC no specific and clear directions were given against renewal of FDRs. In his opinion the Bank was not free to renew the FDRs, in the light of directions given in Ex.PW1/DC. This witness could not tell whether lien was lifted by Income Tax Department on FDRs or not.
27. PW29 Sube Singh Kemwal has deposed that vide his lettersEx.PW29/A to Ex.PW29/C certain queries regarding source of income etc. relating to Kuber Group of Companies were asked from Manager OBC and the Manager was further informed about the restraint order passed by the Income Tax Department.
28. PW36 Sharvan Kumar and PW40 Anand Jha are the other Income Tax Officials who have deposed in this case. PW40 Anand Jha has deposed about the raid conducted by him in the premises of A2 and also about the documents seized in the said raid. CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 15 He has proved the Panchnama as Ex.PW40/A. SEARCH WITNESSES PW30 Avinash PW32 Swarn Singh PW38 A K Rana
29. PW30 Avinash has deposed about the documents seized in his presence during the search conducted at Greater Kailash by the CBI team in the year 2002. He has proved the search memo as Ex.PW 30/A. PW32 Swarn Singh has corroborated the testimony of PW30.
30. PW38 A K Rana has deposed that the residence of A1 at Janak Puri was searched in his presence by the CBI team. He has proved the search memo in this regard as Ex.PW38/A. CBI OFFICERS PW41 K N Tiwari PW43 Komal Singh
31. PW41 K N Tiwari has deposed that a complaint Ex.PW 2/A was received in CBI, SIUX from A. K. Mishra, CVO, OBC, New Delhi and the same was marked to him for registration of FIR. The FIR was, accordingly, registered by him. He has proved the said FIR as Ex.PW41/A.
32. PW43 Komal Singh is the Investigating Officer of this case who after investigation filed the Chargesheet in the Court.
OTHERS PW1 Vijay Kumar Chopra.
CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 16 PW34 Narender Kumar Jain PW39 Madhu Sudan Kapoor PW42 Shashank Choudhary
33. PW1 Sh. Vijay Kumar Chopra after going through all the relevant documents accorded sanction for the prosecution of A1 vide sanction orderEx.PW 1/A.
34. PW34 Narender Kumar Jain and PW39 Madhu Sudan Kapoor are the Chartered Accountants who conducted the audit of the OBC for different periods.
35. PW42 Shashank Choudhary is an official from Tata Consultancy Services (TCS) who has deposed about the software provided by the company to the OBC.
IV STAND OF ACCUSED UNDER SECTION 313 CR.P.C:
36.The statements of A1 and A2 (for himself and on behalf of companies A3 and A4) under Section 313 Cr.P.C were recorded when a chance was given to explain the incriminating evidence against them. The accused have claimed that they have been falsely implicated in this case. According to them, the prosecution witnesses are interested witnesses and have falsely deposed against them. A1 has examined Sh. Pawan Badhan as DW1, Sh. Man Bhadur as DW2 and Sh. Mahesh Chand Gaur as DW3 in his defence while A2 has examined himself as DW4 under Section 315 Cr.PC.
CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 17 V RIVAL CONTENTIONS
37. Sh. N. P. Srivastva, Ld. Sr. PP for CBI has contended that prosecution has proved its case against the accused. He has contended that A1, in conspiracy with A2, renewed 17 CDRs out of 40 CDRs which were seized by the Income Tax Department. A1 sanctioned OD limits to the tune of Rs.14.23 crores against said CDRs and, thus, caused undue gain and corresponding loss to the Bank. Between 1997 to 2000, A1 created false process notes favouring Kuber Group of Companies, without any securities. 17 CDRs were renewed by A1 in violation of the restraint order dated 08.05.1997 of the Income Tax Department. These renewed CDRs were shown and used as security for the OD facilities, dishonestly sanctioned and released by A1. It caused loss to the Bank to the extent of Rs.1.38 crores. He has further contended that A1, in conspiracy with A2, recommended on 16.09.1998 the proposal submitted on behalf of A3 for issuance of a Bank Guarantee for Rs.14.05 crores favouring the Income Tax Department, to secure release of the CDRs and no supporting documents had been furnished. He has vehemently contended that the accused are wrongly placing heavy reliance on letters dated 16.05.1997 and 09.06.1997 vide which the restraint order dated 08.05.1997 under Section 132 (3) of the Income Tax Act was lifted. According to him, vide letter dated 17.06.1997, issued by the same Officer namely S. S. Kemwal, lifting of restraint order was cancelled. CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 18 Vide said letter, Manager OBC was further requested not to release the CDRs without prior permission of the Department. It is, thus, contended that there is no relevancy of letter dated 09.06.1997 issued by the Income Tax Department. Lastly, it is contended that it is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. The record shows that there was meeting of minds of A1 and A2 for doing an illegal act or an act by illegal means and, thus, make both of them coconspirators. In support of his contentions, he has relied upon judgments:Ajay Aggarwal Vs. Union of India, AIR 1993 SC 1637 and State of Maharastra Vs. Som Nath Thapa, AIR 1996 SC 1744.
38. Sh. R. K. Dhawan, Ld. Counsel for A1 has contended that prosecution has not led any evidence to the effect that seizure instructions were deleted by A1 who admittedly joined the Branch in October, 1997. According to him, even otherwise, charge regarding the deletion of seizure instructions is nonest as the then Branch incumbentMr. Vinay Kamboj received the letter D3 pertaining to restrain order from Income Tax Authority in May, 1997. However, vide letter dated 16.5.1997Ex.PW9/D1, Income Tax Department had lifted the restraint order much prior to joining of A1 in the Branch. It is further contended that status code no. 2 pertained to seizure relating to Income Tax Department but the same was never fed in the system and, thus, there was no question of deletion of the same. CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 19 Ld. Counsel has further contended that in the accounts of M/s KBML (A/c no. 21298); KB (A/c no. 241013) and KPL (A/c no. 27237,) there were both debit and credit entries even in AugustSeptember, 1997 vide statement of accountsEx.PW2/DC, Ex.PW2/DD and Ex.PW 2/DE respectively. In nutshell, it is claimed that these accounts were in operation much prior to joining of A1 in the Branch in October, 1997 and, thus, the question of deletion of any instruction by A1 does not arise. Ld. Counsel has vehemently contended that the lien/restraint order had already been lifted on 16.5.1997 and, therefore, the question of using ID of PW4 or of any other person by A1 does not arise. According to Ld. Counsel, no duplicate FDRs were ever issued by the Branch. The CDRs were issued in terms of the circular dated 29.7.1991Ex.PW1/DA issued by head office of the Bank. A1 never exceeded his power in respect of any borrower account of Kuber Group of Companies. There were no specific directions not to renew the FDRs. A1 was duty bound to renew the CDRs in view of the circularEx.PW1/DA and these were renewed at the request of the borrower. Ld. Counsel has contended that further renewal of FDRs was also made by successor of A1 which is stated in the sanction letterEx.PW1/A as has been admitted by PW1. The allegation of CBI that A1 sanctioned Rs. 14.23 crores against renewed CDRs is false. The renewed CDRs, for the first time, were made on 26.6.1999 and after that not even a single rupee advance was made to any of the CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 20 coaccused. All the questioned accounts were stopped by Crime Branch of Delhi Police on 21.4.1999. According to Ld. Counsel the amount of Rs.14.23 crores is the amount of interest and OD. A1 was legally empowered to sanction loan without any limit where 100% securities were available. There is not an iota of evidence on record to show that A1 has abused his official position for any valuable thing or has caused any pecuniary advantage. Lastly, it is contended that sanction orderEx.PW1/A was passed by PW1 without application of mind and was issued at the instance of CBI.
39. Sh. Asim Naeem, Ld. Counsel for A2 to A4 has contended that A1 had acted within four corners of his discretion and did not commit any illegality by sanctioning the loan against property and CDR on the basis of the documents placed before him. There is no evidence on record that A1 and A2 had any prior meeting of mind for commission of the alleged offences. According to him, accused no. 2 to 4 are liable to be acquitted in the present case. In support of his contentions, he has relied upon judgments: C.K. Jaffer Sharief Vs. State, AIR 2013 SC 48; S.L. Murthy Vs. State, AIR 2009 SC 2717; State of Madhya Pradesh Vs. Sheetal Sahai, 2009 Cri.LJ 4436; Smt. Renu Ghosh Vs. CBI, MANU/DE/2517/2009; Devendra Vs. State, JT 2009 (8) SC 120; Shreya Jha Vs. CBI, ILR (2007) Supp. (2) Delhi 19; Vir Prakash Sharma Vs. Anil Kumar Aggarwal, (2007) 7 SCC 373; K. R. Purushothaman Vs. State of Kerala, AIR 2006 SC 35; Devender CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 21 Kumar Singla Vs. Baldev Krishan Singla, 2004 Cri.LJ 1774; G. V. Rao Vs. L. H. V. Prasad, AIR 2000 SC 2474; CBI Vs. Duncans Agro Industries Ltd., AIR 1996 SC 2452; Nand Kumar Singh Vs. State of Bihar, AIR 1992 SC 1939; Hari Prasad Chamaria Vs. Bishun Kumar Surekha, AIR 1974 SC 301; M. Narayan Nambiar Vs. State of Kerala, AIR 1963 SC 1116 and Tulsi Ram Vs. State of U.P., AIR 1963 SC
666.
VI. EVALUATION OF EVIDENCE AND FINDINGS :
40. The five issues which are required to be decided in the present case are as follows:
(i) Sanction for prosecution of A1.
(ii) Deletion of seizure instruction by A1. (iii) Renewal of CDRs by A1 (iv) Sanction of overdraft limit to the extent of Rs.14.23 crores against the renewed CDRs. (v) Abuse of official position by A1 and criminal conspiracy. (i) Sanction for Prosecution of A1.
41. Sh. R. K. Dhawan, Learned Counsel for A1 has contended that the sanction was accorded by PW1 without application of mind and at the instance of CBI. There is no evidence on record that A1 abused his official position as he had acted in accordance with the banking practice, procedure and circulars issued by the department. A1 did not delete any instruction in the system of the CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 22 Bank. According to him, ever otherwise, the restraint order dated 8.5.1997 was lifted by the Income Tax Department on 16.5.1997 and, thus, A1 cannot be said to have committed the offences as alleged against him.
42. The sanction for prosecution of an accused under the P.C. Act is not a mere formality and it has to be accorded after complete satisfaction. Sanction order must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning Authority. Simultaneously, it has also to be kept in mind that this provision does not intend that a public servant who is alleged to be guilty should escape the consequences of his criminal act by raising technical plea about invalidity of the sanction. This section safeguards the innocent but does not shield the guilty.
43. PW1 had accorded sanction for prosecution of A1. He has deposed that he had verified all the documents such as statement of witnesses etc. before granting sanction and the sanction order was got typed under his supervision. He has proved the sanction order as Ex.PW1/A.
44. During his crossexamination, PW1 has admitted that A1 had the powers to sanction advance upto Rs.5 crores per borrower and A1 did not exceed his power in respect of any of the borrower accounts of the Kuber Group of Companies. It was further admitted that lettersEx.PW1/DC and Ex.PW1/DD did not give any specific CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 23 directions not to renew the FDRs. The FDRs were renewed at the request of depositor (A2) and not by A1 on his own. PW1 has further admitted that at page no. 7 of the sanction order it is mentioned there is no freeze in any of the accounts of the Kuber Group of Companies. He has further admitted as correct that renewal of FDRs with regard to interest components were also subsequently made by the successor of A1 i.e. PW5 Sh. Ravi Vohra. Thus, it stands proved that not only A1 renewed the FDR with regard to interest components but also his successor PW5 Ravi Vohra. PW1 has further admitted that in 1998 securities by way of FDRs were Rs.16 crores and advance was only Rs. 15 crores against the FDRs which were fully secured. It is further admitted by him that there were immovable properties of Kuber Group of Companies which were mortgaged to the Bank as securities. The factum regarding sanction accorded by Dy. General Manager on 25.9.1998 vide Ex.PW1/DF has been admitted by PW1. The sanction orderEx.PW1/A at pages 12 to 13 itself mentions about the securities in the form of CDRs on 26.8.1998. He has also admitted that interest accrued on renewed FDRs was not paid to the depositor or anybody, including Income Tax Department. In view of the facts that have emerged in the crossexamination of PW1 and have been stated hereinabove, I am of the opinion that the sanction to prosecute A1 was accorded by PW1 without application of mind and, as such, the same is nonest in law.
CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 24 (ii) Deletion of seizure instruction by A1
45. Accused have vehemently contended that there was no cheating as there was no wrongful loss to anyone and corresponding wrongful gain to accused and, therefore, the ingredients of Section 415 IPC are not attracted to the present case. According to them, there is nothing on record to suggest that any loss was caused either to the Bank or to the Income Tax Department. The crucial ingredient being missing, the accused cannot be convicted for the offence of cheating.
46. There is no evidence on record that it was A1 who had deleted the seizure instructions issued by the Income Tax Department. A1 joined the G.K.II Branch of OBC in October, 1997. In May, 1997, the then Branch incumbent, Sh. Vinay Kamboj received a letter (D3) from the Income Tax Department vide which restraint order was issued to the Bank. However, it has come on record that the Income Tax Department itself lifted the restraint order vide its letter dated 16.5.1997Ex.PW9/D1. The relevant portion of the said letter is reproduced herein below: "The Manager, Oriental Bank of Commerce, Greater Kailash PartII, New Delhi.
Sir, Re: Lifting of restraint orders of the bank account in the case of Kuber Group of Companies.
The restrain order passed under Section 132 (3) of the Incometax Act, in the following companies only is hereby lifted with immediate effect:
CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 25 C/A no.
1) xxx xxx xxx
2)M/s Kuber Mutual Benefits Limited. 21298
3)M/s Kuber Planters Limited. 27237
4)M/s Kuber Builder. 241013 The above mentioned companies may be allowed to operate their bank accounts with you.
Yours faithfully, sd/ (S. S. Khemwal) Assistant Director of Incometax (Investigation), Unit IV (2), New Delhi"
(Emphasis supplied)
47. Thus, the restraint order was lifted much prior to the joining of A1 in the Branch. Further, it has come in evidence that the status code9 was fed in the computer system by the then incumbent, Sh. Vinay Kamboj. Hence, it has not been established beyond reasonable doubt that the seizure instructions were deleted by A1 or by anyone at his instance. It has also come in evidence that the status code2 pertained to seizure relating to Income Tax Department. The said code was never fed in the system by the then incumbent, Sh. Vinay Kamboj. Hence, the question of deletion of said code does not arise.
48. It has come in the evidence of PW2 that in the current account no. 21298 of M/s KBML, there were both credit and debit entries even in September, 1997. It proves that after the restraint order dated 08.05.1997 was issued by Income Tax Department and prior to the joining of A1 in the Branch in October, 1997, the aforesaid CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 26 account was in operation. The statements of account of aforesaid company has been proved asEx.PW2/DC. Similarly, the current account nos. 241013 and 27237 of KB and KPL show debit and credit entries of August, 1997. The statements of account of KB and KPL have been proved on record as Ex.PW2/DD and Ex.PW2/DE respectively. Thus, it stands established that all the aforesaid accounts were in operation much prior to the joining of A1 in the Branch. Therefore, the question of deletion of any instructions issued by the Income Tax Department by A1 does not arise.
49. As already stated above, it has also come on record that the restraint order dated 8.5.1997 issued by the Income Tax Department was lifted by it on 16.5.1997. Therefore, there was no question of using user ID of PW4 or of any other person by A1 who joined the Branch in October, 1997. Even otherwise, PW4 has not supported the CBI in this regard and has categorically deposed during his crossexamination conducted by the CBI after he was declared hostile that his user ID was not used in the renewal of the CDRs of Kuber Group of Companies. According to PW4, the user ID used to remain with him. However, he feigned ignorance as to how his user ID was used in the lifting of lien and freezing instructions on the FDRs of Kuber Group of Companies. Though he identified the signatures of A1 on voucherEx.PW3/K but he has categorically deposed that the said voucher was made on 26.9.1999 when the seizure was lifted by CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 27 the Income Tax Department. Thus, the evidence of PW4 does not implicate A1 in the commission of alleged offences.
50. PW18 Hardeep Arora during his crossexamination has admitted that the FDR which is even under status code9 can be renewed but it cannot be encashed. He has categorically deposed that Income Tax seizure comes under status code2 only. It has come on record that no seizure was ever recorded/fed in the system of the Bank under status code2 prior to the joining of A1 in the Branch in October, 1997.
51. PW4 has deposed during his crossexamination by Ld. PP after he was declared hostile to the effect, "I cannot say as to how my user ID was used in the lifting of the lien and the freezing instructions on the FDRs of Kuber Group of companies. Voltd. it may have been stolen". However, no complaint regarding his user ID being stolen was made which has been established from the testimony of PW28. PW28 has categorically deposed that during his tenure as data base administrator in GKII Branch of the OBC from the year 1997 to 2002, he did not receive any complaint either regarding loss or misuse of password.
52. Thus, I am of the opinion that the prosecution has not been able to prove beyond reasonable doubt that the seizure instructions issued by the Income Tax Department vide restraint order dated 8.5.1997 were deleted either by A1 or by anyone else on his CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 28 instructions. Thus, the CBI has failed to prove the said charge against A1.
(iii) Renewal of CDRs
53. It is the case of the prosecution itself that no duplicate FDRs were issued by the GKII Branch of OBC. The CDRs were renewed in terms of the circular dated 29.7.1991Ex.PW1/DA. The said circular pertaining to the payment of overdue interest on FDRs seized by Income Tax Department and its clarification was issued by Head Office of the OBC through its planning department for renewal of FDRs to all the Branches. A1 had acted on the said circular for the renewal of CDRs.
54. PW1 has admitted during his deposition in the Court that A1 had power to sanction advance upto Rs.5 crores per borrower. There is nothing on record either in the testimonies of the witnesses or in the documents placed by the CBI that A1 exceeded his power in sanctioning advance beyond Rs.5 crores in respect of any borrower account of the Kuber Group of Companies. PW1 has further admitted during his deposition in the Court that vide documentsPW1/DC and PW1/DD instructions were issued for not allowing operation of the accounts of Kuber Group of Companies and also that the duplicate FDRs be not issued. The aforesaid exhibits did not give any specific direction not to renew the FDRs which were allegedly seized by the Income Tax Department. During his crossexamination, PW1 was CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 29 confronted with sanction orderEx.PW1/A and on being confronted, he has admitted that the FDRs were issued at the request of depositor namely P. K. Sharma (A2).
55. Thus, from the above discussion it stands established that A1 was duty bound to renew the CDRs in terms of circular dated 29.7.1991Ex.PW1/DA. A1, accordingly, renewed the CDRs in question on the request of borrowerA2.
56. 17 FDRs were renewed (equivalent to the interest) and later on clubbed to 9 FDRs for the interest as per circular D1/161 (Ex.PW1/DE) and the same was done by A1 after obtaining letter of request (D171) from A2. Thus, the aforesaid act of A1 was not done by him on his own but only on the request of A2. It is the case of CBI itself in the chargesheet (page5) that the FDRs can be renewed as per documentEx.PW1/DE. The FDRs were prepared in the system and, thereafter, were signed by the Branch incumbent.
57. It is further the case of the prosecution that the securities available with GKII Branch of the Bank were less than outstanding in the various accounts of Kuber Group of Companies. PW5 joined the said Branch after A1. PW5 has admitted that there were 40 FDRs in possession of the Bank besides other FDRs which were encumbered. However, he could not specifically tell the numbers of such other FDRs. It has also been admitted that Indira Vikas Patras were lying in locker no. 944. These have also been termed as security for the CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 30 purpose of statutory audit. PW5 has further admitted that a title deed of the property was also lying with the Bank though he could not furnish the details thereof. PW5 has admitted the documentEx.PW 3/DE which shows that the land situated at Village Binola, Tehsil and District Gurgaon, Haryana as well as the property bearing no. S32 Greater Kailash New Delhi were equitably mortgaged in favour of the Bank. It proves that the OD facility granted by the OBC were secured.
58. Thus, there is nothing on record that the duplicate FDRs were issued by A1. The loan documents were being dealt by loan officer Ruma Das. Ruma Das used to work under the supervision of Reenu Nagpal, Loan Manager. In the present case the loan documents were received by Ruma Das under the supervision of Reenu Nagpal. There is nothing on record that any discrepancy was found by these Bank Officers in the loan documents. Further, the execution and validity of documents was proved before the Debt Recovery Tribunal (in short 'DRT') and no discrepancy with regard to any of the securities, movable, or immovable, was found. The DRT had issued the recovery certificate on the basis of the loan documents executed by A2 and accepted by the aforesaid officers of the Bank.
59. PW36 Sharvan Kumar has not supported the prosecution case. He was declared hostile and was allowed to be crossexamined by Ld. PP. The testimony of this witness cannot be brushed aside merely because he is a hostile witness if his testimony is otherwise CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 31 trustworthy. PW36 has categorically deposed that A1 was bound to renew the FDRs which were seized by the Income Tax Department. The testimony of PW36 is supported by the documentEx.PW1/DE (D1/16). Thus, A1 had the power to renew the FDRs even though they were seized by the Income Tax Department.
60. The restraint order was passed by the Income Tax Department vide its order dated 08.05.1997. However, another letter dated 16.05.1997 was issued by the Assistant Director of Income Tax lifting the restraint order on the current accounts of Kuber Group of Companies. According to Ld. Sr. PP for CBI, the letters dated 16.05.1997 (Ex.PW9/D1) and 09.06.1997 (Ex.PW29/A) are of little consequence as, later on, lifting of restraint order was itself cancelled by the Income Tax Department. He has drawn attention of this Court to the letter dated 17.06.1997 (Ex.PW29/C) in this regard. I have gone through these letters. All these letters bear the signature of Sh. S. S. Kemwal, Assistant Director of Income Tax (Investigation), Unit IV (2), New Delhi.
61. The FDRs were seized by the Income Tax Department under Section 132 (3) of the Income Tax Act. Under Section 132 (8A), as inserted with effect from 01.04.1989, it is now provided that an order under Section 132 (3) shall not be in force for a period exceeding sixty days from the date of the order. If the assessing officer of the Income Tax Department finds that he is required to extend the CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 32 restraint beyond sixty days, he must record his reasons in writing and approach the Commissioner or Director for obtaining his approval for an extension of time. This must be done within the period of sixty days. Therefore, after 31.03.1989 the assessing officer has to conclude his enquiry within sixty days in connection with the restraint order under Section 132 (3) and if he still needs to continue the restraint order, he must obtain approval of Commissioner of the Income Tax to his written reasons and also communicate the extension. In the present case, even assuming that the restraint order dated 08.05.1997 was not lifted by the Department on 16.05.1997, the said restraint shall be deemed to have expired on the expiry of sixty days from 08.05.1997. Thus, it cannot be said that A1 had any intention to commit the alleged offences or to cause any wrongful loss to the Bank.
62. At the cost of repetition, as has been already stated in para 44 of this judgment, the sanction was accorded by PW1 without due application of mind. PW1 has admitted that the FDRs were renewed by the successor of A1 and the said fact also finds mentioned in the sanction orderEx.PW1/A.
63. There is nothing on record that A1 recommended the proposal of bank guarantee of Rs.14.5 crores without following the procedure and practice of the Bank. The said proposal was forwarded by A1 as the same was within his powers and discretion. However, the said recommendation was not accepted by the higher authorities of CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 33 the Bank and, as such, no bank guarantee was issued. Thus, the CBI has failed to prove the said charge against the accused.
(iv) Sanction of overdraft limit to the extent of Rs. 14.23 crores against the renewed CDRs .
64. PW42 Shashank Choudhary has testified to the effect, "In 1997, the person who made batches (debit entries and credit entries) could be checker/authrized person to authorize the entry. But by 2002 we had changed this practice and maker cannot be the checker of the same Branch". Thus, it shows that the credit and debit vouchers prepared and approved in the year 1997 were in accordance with the practice prevalent at that time in the Bank.
65. It is the case of the prosecution that A1 had sanctioned Rs. 14.23 crores against renewed CDRs. It has come on record that vide Ex.PW1/DF the Regional Office of the Bank on 25.9.1998 had confirmed the action and OD limit of Rs.17 crores. VideEx.PW1/DA (Document no. D161), specific directions were issued as to how the seized FDRs and CDRs be dealt with. The same has been discussed in the preceding paras of this judgment. It appears that the said circular Ex.PW1/DA was issued so that there is no loss of interest to the FDR holder on the deposits. It is an admitted fact that the accounts of Kuber Group of Companies were already freezed by the Crime Branch of Delhi Police on 21.4.1999 in case FIR No. 126/1999, PS Greater Kailash. The renewal of the CDRs was made for the first time on CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 34 26.6.1999 and, thereafter, on subsequent dates. As the accounts had been freezed by the Crime Branch, no money was advanced to any of the coaccused A2 to A4. Amount of Rs.14.23 crores was the amount of interest and OD. As already stated, A1 was legally empowered to sanction loan without any limit where 100% securities were available. The sanction of OD limit either on 29.12.1997 or 30.12.1997 does not arise as the accounts were in credit. On 24.1.1998, the limit was granted for Rs.4.75 crores and the said limit was secured against security of Rs.29.39 crores which were in addition to the alleged CDRs.
66. Thus, I am of the opinion that this charge has not been proved by the prosecution against the accused beyond reasonable doubt.
(v) Abuse of official position by A1 and criminal conspiracy.
67. Sh. Asim Naeem, Ld. Counsel for A2 to A4 has contended that there is nothing on record to substantiate the alleged charges against the accused. According to him, not even a single document has been placed by the prosecution suggesting the same having been forged by A2 to A4. He has further contended that the accounts of Kuber Group of Companies had already been freezed by the Crime Branch of Delhi Police on 21.4.1999 and, thus, the renewal of FDRs did not cause any pecuniary gain to A2 to A4 and corresponding loss to the Bank. Lastly, it is contended that a false CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 35 complaint was made by the complainant bank. The bank is earning money on the FDRs of A2 to A4 and is utilizing the said amount for its benefit. According to him, accused cannot be convicted under Section 13 (1) (d) read with S. 13 (2) of P.C. Act.
68. I have gone through the judgments cited before me. It has been held by Apex Court in judgmentsN. Naryana Nambiar (Supra) and C. K. Jaffer Sharief (Supra) that mens rea is an essential ingredient for the offence of criminal misconduct punishable u/s 13 (2) of the PC Act.
69. In S.V.L Murthy (Supra), it was held by Apex Court that one of the ingredients of cheating as defined in Section 415 of IPC is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract. It was further held for the purpose of arriving at a finding that there was a conspiracy so as to cheat the Bank, it was necessary for the prosecution to establish that there had been a meeting of minds at the time when the facility had been granted.
70. In Vir Parkash Sharma (Supra), it was held by the Apex Court that nonpayment or under payment of price of goods by itself does not amount to commission of offence of cheating or criminal breach of trust. It is essentially a civil dispute.
71. In Duncans Agro Industries Ltd. (Supra), the dispute between the Bank and the accused was compromised. The Apex Court CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 36 held that no prima facie case of cheating can be made out as the grant of credit facility meant that Bank was prepared to give loans up to limit sanctioned. It was further held that when the interest of the Banks had been safeguarded in the civil suits instituted by the Banks, no useful purpose will be served in proceeding with further investigation.
72. In Sheetla Sahai (Supra), it was held by the Apex Court that for a conspiracy, what is necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. Often conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to obtain. An offence of criminal conspiracy can also be proved by circumstantial evidence.
73. In order to ascertain whether the public servant (A1) actually connived with private persons, notings in the files are very important and vital. The Court can always draw logical and natural inferences from such notes on the files. In Runu Ghosh (Supra), it has been held by our High Court of Delhi that offences of corruption are done under the cloak of official duties and in a shrouded manner and, therefore, the only evidence available is the notes written or approved by public servants. It has further been held that Court would be fully justified to draw appropriate inferences from such notes.
74. For an offence under Section 13 (1) (d) of the P.C. Act, this Court is required to assess if the public servant had abused his CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 37 position as public servant thereby obtaining for himself or for any other person any valuable thing or pecuniary advantage. In other words, this Court is required to assess if A1 had abused and misused his public office in such an endeavor. In my opinion, the complicity of public servantA1 is not evident in the present case and for reaching the said conclusion, following facts, in summarized form, already discussed in preceding paras, are relevant:
(a) A1 had acted in accordance with Banking practice and procedure.
(b) A1 had not issued any duplicate FDRs. (c) FDRs were renewed in accordance with the circularEx.PW
1/DE which has been admitted by PW1 and PW36.
(d) It has not been established that A1 or any one at his instance deleted any instructions in the system after he joined the Branch in October, 1997.
(e) The restraint order dated 08.05.1997 was lifted by Income Tax Department itself on 16.05.1997. Even otherwise, in view of Section 132 (8A) of Income Tax Act, the restraint order dated 08.05.1997 lapsed after the expiry of six months.
75. There is no evidence on record to show that A1 had abused his official position for any valuable thing or had caused any pecuniary advantage. A perusal of the evidence on record shows that A1 had acted in his official capacity as Banker and granted OD CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 38 facilities on the security of CDRs and FDRs lying with the Bank besides other immovable properties mortgaged to the Bank. Since the substantive offence under Section 13 (1) (d) r/w S.13 (2) of P. C. Act is not made out against A1, no offence of conspiracy can be said to be proved against the other accused persons.
VII. CONCLUSION :
76. Upon consideration of all the facts and circumstances of the case enumerated hereinabove, this Court is of the considered opinion that prosecution has failed to prove its case against all the accused beyond reasonable doubt. Hence, all the accused in the present case are hereby acquitted of all the charges levelled against them. Their personal bonds are cancelled and respective sureties are discharged. In term of Section 437 (A) Cr.PC, accused are directed to furnish their personal bonds in the sum of Rs.25,000/ with one surety in the like amount for a period of six months for their appearances before the High Court of Delhi in the event the CBI wishes to file an appeal challenging the present judgment. The bonds be furnished within one week.
77. Ahlmad is directed to page and bookmark the file so as to enable the digitisation of the entire record. File be consigned to record room.
Announced in the open Court (PRAVEEN KUMAR) today i.e on 12.02.2016 Special Judge, CBIIII PC Act, Rohini Courts, Delhi CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 39 CBI No. 53/11 CBI Vs. C M Vasudeva and others Page 40