Delhi District Court
Cbi vs . 1) Ashok Kumar Sehgal on 25 August, 2014
1
IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI
CC No.251/07 RC : 17(A)/91
PS : CBI/ACB/New Delhi
U/s : 120B IPC r/w Sec. 13
(1) (d) punishable u/s 13(2)
420/468 & 471 of the IPC
CBI Vs. 1) Ashok Kumar Sehgal
S/o Sh. Ved Prakash,
R/o 840, Shastri Nagar, Delhi.
2) Nilotpal Bhattacharjee
S/o Late Sh. N.C.Bhattacharjee,
R/o F1112, C.R.Park, New Delhi.
Date of Institution : 19.10.1992
Judgment Reserved on : 28.07.2014
Judgment Delivered on : 16.08.2014
J U D G M E N T
1. In the present case, both the accused are facing trial for the offences punishable u/s. 120B IPC r/w Sec. 13 (1) (d) punishable u/s CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 1 of 67 Special Judge, CBI01, Central, Delhi 2 13(2) of The Prevention of Corruption Act, 1988, and for the offences punishable u/s. 420, 468 & 471 of the IPC.
Brief facts of the case
2. It has been stated in the charge sheet that on the basis of a source information, the present case bearing No. RC17(A)/91 DLI, dated 18.03.1991 was registered, wherein, it was alleged that accused Ashok Kumar @ Ashok Kumar Sehgal, while working as Sr. Accounts Assistant at Indian Airlines, IGI Airport New Delhi, during the period 198990, entered into a criminal conspiracy with Sh. S.K. Singh, Asstt. Engineering Manager; Sh. A.K. Zutshi, Superintending Aircraft Engineer; Sh. N.Bhattacharjee Asst. Engineering Manager and Sh. V.D. Sharma, Store and Supply Superintendent, with the object to cheat the Indian Airlines by submitting forged/false statement of payment to the employees under Contributory Family Medical Scheme (CFMS), in the name of his coconspirators and in pursuance to the said criminal conspiracy, accused Ashok Kumar CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 2 of 67 Special Judge, CBI01, Central, Delhi 3 @ Ashok Kumar Sehgal, prepared various forged / false statements of payments to the employees in the name of S.K.Singh, A.K.Zutsi, N.Bhattarchjee and V.D.Sharma and thereby induced the Accounts Officer, Indian Airlines, IGI Airport, to pass the same for payment.
3. It is further stated that the officials of the Accounts Section treated the false statements of payments as genuine, in the name of the coconspirators.
4. It is further stated that the accused persons received their cheques from the Accounts Section and get the same deposited in their respective bank accounts and have, therefore, abused their position as public servants and dishonestly and fraudulently cheated the Indian Airlines to the tune of Rs.34038.25 p.
5. It is further stated that during the investigations, it was revealed that the accused in the present case, dishonestly and CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 3 of 67 Special Judge, CBI01, Central, Delhi 4 fraudulently received a sum of Rs.4,015/ towards bogus CFMS claim from the Indian Airlines and accused Nilotpal Bhattacharjee collected an Account Payee Cheque of the said amount and deposited the same in his savings bank account No. 14454 at PNB, Kalkaji and subsequently, withdrew the same by issuing self cheques and thereby caused a pecuniary loss of Rs.4,015/ to the Indian Airlines and caused corresponding gain to themselves.
6. It is further stated that accused Nilotpal Bhattacharjee issued a cheque bearing No. 616554, dated 26.09.1990 for Rs.4,015/ in favour of Ashok Kumar @ Ashok Kumar Sehgal, who deposited the same in his savings bank account No. 4645 at Central Bank of India, Khan Market, New Delhi.
7. It is further stated that accused Nilotpal Bhattacharjee has not preferred any CFMS claim, bearing staff No. 288721, in the year 1990 for a sum of Rs.4,015/ and the CFMS cell of medical section at IGI Airport has neither processed nor passed the said CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 4 of 67 Special Judge, CBI01, Central, Delhi 5 claim in the name of the accused Nilotpal Bhattacharjee. It is further stated that CFMS Cell had never sent any statement of payment to the employees. But, accused Ashok Kumar @ Ashok Kumar Sehgal, dishonestly and fraudulently inserted the forged / bogus statement of payment to the employees, under CFMS sheet bearing No. 864 dated 23.08.1990, in favour of Nilotpal Bhattacharjee and mixed it in the lot of genuine statements of payments to the employees and thereafter got the bill passed and got the cheque issued in favour of coaccused Nilotpal Bhattacharjee.
8. It is further stated that both the accused persons have conspired together and have dishonestly and fraudulently cheated the Indian Airlines to the tune of Rs.4,015/ and caused undue pecuniary loss to the Indian Airlines and corresponding undue pecuniary gain to themselves, by corrupt and illegal means and by abusing their official positions, as such public servants. CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 5 of 67 Special Judge, CBI01, Central, Delhi 6
9. It is further stated that during investigations, the statement of various witness were recorded by the Investigating Officer and the specimen handwriting and signatures of the accused were also obtained and the questioned documents were sent to GEQD, Shimla, for expert opinion and after the completion of investigation and after receiving report and expert opinion from GEQD, Shimla, the sanctions for prosecution of the accused persons were also obtained and after obtaining the necessary sanction, the charge sheet was filed in the court and the accused were sent up for trial.
10. On 08.07.1996, order on charge was passed by the Ld. predecessor of this court and in pursuance to the said order, the charges for the offences punishable u/s.120B r/w Sec. 420, 468, 471 & 470 IPC and Sec. 13(2) r/w. Sec. 13 (1) (d) of The Prevention of Corruption Act, 1988, were framed against the accused persons on 19.07.1996, to which, they pleaded not guilty and claimed trial.
CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 6 of 67 Special Judge, CBI01, Central, Delhi 7 PROSECUTION EVIDENCE
11. During the course of trial, the prosecution examined a total of 26 witnesses and when the matter was taken up by the Ld. predecessor of this court, for recording of statements of accused u/s. 313 Cr.P.C., it was observed by him that there were several material discrepancies, on record, in recording the evidence and mentioning of the exhibit numbers on the documents and therefore, vide order dated 17.05.2010, a retrial was ordered by the Ld. Predecessor of this court, with following observations:
"We are now facing a similar situation. The only course left would be to start trial a fresh. Keeping in mind the fact that accused persons have been facing trial for 18 years, I expect CBI to pull up its socks and conclude recording of testimony of witnesses at the earliest. Evidence of those witnesses which is unambiguous and is against any particular accused which is on record shall be read against them. Such a witness need not be examined again. Let it be further clear that I am not going to allow any frivolous CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 7 of 67 Special Judge, CBI01, Central, Delhi 8 adjournments. In case CBI is interested it should ensure appearance of its witnesses in time on all the dates which are fixed for it."
12. During the course of retrial, a total of 13 witnesses were re examined by the Ld. Predecessor of this court. Therefore, in view of the order dated 17.05.2010, only PW1 to PW7, PW9, PW14, PW17, PW18, PW21, PW25 and PW26, who were examined prior to 17.05.2010, are to be read in the present case, for the purposes of proving the prosecution case against the accused persons, along with the 13 witnesses, who were examined after 17.05.2010. The details of these witnesses are as under:
A. The witness examined prior to 17.05.2010
i) PW1 Ashok Kumar is the witness of the proceedings, when
the specimen signatures of accused N. Bhattacharjee were taken by the Investigating Officer, on 12.11.1991. This witness has proved the five sheets marked S103 to S107 containing the CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 8 of 67 Special Judge, CBI01, Central, Delhi 9 signatures of accused N. Bhattacharjee as Ex.PW1/A1 to Ex.PW1/A5.
ii) PW2 Pradip Kumar Banerjee, Addl. Secretary, Ministry of Coal, Govt. of India, New Delhi, who was the Chairman and Managing Director of Indian Airlines on 10.07.1992. He has granted the sanction for prosecution of accused N. Bhattacharjee, vide order Ex.PW2/A.
iii) PW3 Yashpal Vij, who was working as Operating Officer, at New Delhi Main Branch of SBI, on 05.07.1991. He handed over 14 cheques to the Investigating Officer, vide seizure memo Ex.PW3/A.
iv) PW4 Shanti Lal Khanna, who was working as Sr. Vigilance Officer, Indian Airlines, on 06.06.1991. This witness has handed over the documents to the Investigating Officer, vide seizure memo Ex.PW4/A.
v) PW5 Vinod Kashyap, Director, Stores and Purchases, who was working as Finance Manager, Indian Airlines, in April 1992. This witness has granted the sanction for prosecution of accused CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 9 of 67 Special Judge, CBI01, Central, Delhi 10 Ashok Kr. Sehgal, vide order Ex.PW5/A.
vi) PW6 Smt. Veena Sethi, Dy. Manager (Finance), Indian Airlines, who was working as Accounts Officer in Cash and Bank Section, Northern Region, Indian Airlines, Thapar House, New Delhi, on 11.09.1991. This witness was section incharge of cash and bank and was entrusted with responsibilities for making payments and receipts to the staff and outsiders. She handed over the documents to the CBI, vide letter dated 11.09.1991 Ex.PW6/A. This witness has also identified the signatures of Shri Santokh Singh and A.N.Viz, the signatories and issuing authority of cheque No. 842853 dt. 11.9.90, Ex.PW6/B(Ex.New PW1/A), issued in the name of accused N. Bhattachrjee.
vii) PW7 Amrit Nain Vij, Dy. Manager (Finance), who was working as Accounts Officer, Thapar House, Indian Airlines, in the year 1990. This witness has also identified the signatures of Shri Santokh Singh and A.N.Viz, the signatories and issuing authority of cheque No. 842853, dated 11.09.1990, Ex.PW6/B(Ex.New PW1/A), issued in the name of accused N. Bhattachrjee. CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 10 of 67 Special Judge, CBI01, Central, Delhi 11
viii) PW8 Shri Santokh Singh. This witness has been re examined as NewPW1, in compliance of the order dated 17.05.2010.
ix) PW9 Suresh Kumar Singh, Dy. GM (Engineering), who was working as Shift Incharge, Line Maintenance, Engineering Department in Indian Airlines, in the year 1990 and has reported that he was having no savings bank account in Indian Bank, Janakpuri, in the year 1990 and he has not taken any claim from Indian Airlines in respect of CFMS in the year 1988 to 1990.
x) PW10 Shri Vakil Shah. This witness has been reexamined as NewPW7, in compliance of the order dated 17.05.2010.
xi) PW11 Shri Subhash Chander, This witness has been re examined as NewPW12, in compliance of the order dated 17.05.2010.
xii) PW12 Shri Om Parkash Sharma. This witness has been reexamined as NewPW3, in compliance of the order dated 17.05.2010.
xiii) PW13 Shri Shashi Kant Oberoi. This witness has been re CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 11 of 67 Special Judge, CBI01, Central, Delhi 12 examined as NewPW4, in compliance of the order dated 17.05.2010.
xiv) PW14 Dr. Ganesh Shankar Pandey, who was posted as Medical Officer at Palam Airport, during the year 198990 and was empowered to pass the medical claim of an employee of the Indian Airlines. He has stated that the entry of CFMS claim sheet is made in the CFMS hospital claim register Ex.PW14/A. He has also deposed that whenever a CFMS claim sheet is not entered in the claim medical register of the hospital Ex.PW14/A, it shows that no claim was preferred by the concerned employee.
xv) PW15 Sh. Patel Ram Parashar. This witness has been re examined as NewPW6, in compliance of the order dated 17.05.2010.
xvi) PW16 Sh. Raghubir Singh Narwal. This witness has been reexamined as NewPW8, in compliance of the order dated 17.05.2010.
xvii) PW17 Sh. Sudan Pal, Sr. Inspector Engineering Section, IGI Airport, who was posted as Inspector Engineering in Indian CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 12 of 67 Special Judge, CBI01, Central, Delhi 13 Airlines at IGI Airport, in the year 1991. This witness was called to the CBI office on 20.12.91, when the specimen writing/signatures of accused Ashok Sehgal were taken on the sheets ExPW25/A1 to Ex.PW.25/A5, Ex.PW25/B1 to Ex.PW25/B24 and Ex.PW4/C1 to Ex.PW4/C18.
xviii) PW18 is Mahender Kumar Kansal. This witness was posted as Sub Accountant, Central Bank of India, Khan Market, New Delhi, in the year 1991. This witness has supplied the documents to the IO, vide seizure memo, dated 30.07.1991, Ex.PW27/A. He has proved the deposition of a sum of Rs.4,015/ on 05.10.1990 vide payinslip Ex.PW27/B and cheque No. 616544, dt. 26.09.1990 Ex.PW27/C. xix) PW19 Ashok Kumar Goel. This witness has been re examined as NewPW10, in compliance of the order dated 17.05.2010.
xx) PW20 Sh. Jitender Singh. This witness has been re examined as NewPW9, in compliance of the order dated 17.05.2010.
CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 13 of 67 Special Judge, CBI01, Central, Delhi 14 xxi) PW21 Sukesh Johri, who was posted as clerktypist, at PNB, Kalkaji, in the year 199091. This witness has deposed that accused N. Bhattacharjee was having Savings Bank Account No. 14454 at PNB, Kalkaji. This witness has proved the teller card as Ex.PW21/B and the specimen signatures card as Ex.PW21/C. The ledger sheet of the account of accused N.Bhattacharjee, has been proved as Ex.PW21/D. This witness has further stated that cheque No. 842853, dt. 11.09.1990, Ex.PW6/B (Ex.NewPW1/A) in favour of N. Bhattacharjee for Rs.4,015/ was deposited at PNB, Kalkaji through payinslip Ex.PW21/E. This witness has also deposed that accused N. Bhattacharjee issued cheque No. 616554, dt. 26.9.90 for Rs.4,015, in favour of accused Ashok Kumar. He has further stated that the said cheque was cleared from the account of accused Ashok Kumar at Central Bank of India, Khan Market. The cheque No. 616554, dated 26.9.90 for Rs.4,015/, in favour of accused Ashok Kumar, has been proved on record as Ex.PW21/F (also Ex.PW27/C).
xxii) PW22 Sh. Sunil Mathur. This witness has been re CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 14 of 67 Special Judge, CBI01, Central, Delhi 15 examined as NewPW2, in compliance of the order dated 17.05.2010.
xxiii) PW23 Sh. Rajbir Singh. This witness has been re examined as NewPW11, in compliance of the order dated 17.05.2010.
xxiv) PW24 Sh. Subash Chander Yadav. This witness has been reexamined as NewPW13, in compliance of the order dated 17.05.2010.
xxv) PW25 Manoj Kr. Sharma, Branch Manager, Central Bank of India, Khan Market, New Delhi, who has deposed that accused Ashok Kumar was having a bank account No. 4645, at Central Bank of India, Khan Market, New Delhi. The specimen signatures card has been proved as Ex.PW24/B1 and various payinslips have been proved as Ex.PW24/D3 to Ex.PW24/D10.(Except Ex.PW24/D6). This witness has also deposed that the cheque Ex.PW24/D3 pertains to SBI, whereas cheque Ex.PW24/D5 pertains to PNB. This witness has further stated that accused Ashok Kumar has withdrawn money from his account vide CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 15 of 67 Special Judge, CBI01, Central, Delhi 16 cheques Ex.PW24/E1 to Ex.PW24/E6.
xxvi) PW26 Dr. B.A.Vaid. This witness has examined the questioned documents and has compared the same with the specimen signatures of accused Ashok Kr. Sehgal and N. Bhattacharjee. This witness has proved the letter of CBI, dated 02.01.1992 as Ex.PW32/A and opinion as ExPW24/H. This witness has also proved the four sheets containing reasons for his opinion as ExPW24/B. This witness has also deposed that the reports, along with the documents were returned back to the CBI vide letter No. CX3/92 and CX4/92, dated 29.01.1992 and 13.03.1992, ExPW24/G. B. Witnesses examined after 17.05.2010
i) New PW1 Sh. Santokh Singh, who was posted as Asstt. Finance Manager in Indian Airlines, Finance Department, Safdarjang Airport, New Delhi, in September 1991. He was one of the signatories of the cheque No. 842853, dated 11.09.1990 for Rs.4,015/ Ex.NewPW1/A, in the name of accused CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 16 of 67 Special Judge, CBI01, Central, Delhi 17 N.Bhattacharjee. He has also proved the CFMS / voucher No. 1796, dated 10.09.1990, as Ex.NewPW1/B.
ii) New PW2 Sunil Mathur, Accounts Assistant, Indian Airlines, Palam, who has deposed that cheque No. 842853 for Rs.4,015/ Ex.PW1/A, was received in his office and was duly delivered to accused N.Bhattacharjee. This witness has also proved the cheque forwarding voucher, bearing the signatures of accused N.Bhattacherjee, on its back, as Ex.PW2/A. He has also proved the entry in miscellaneous payment register Ex.NewPW3/D, as Ex.NewPW2/B.
iii) New PW3 Om Prakash Sharma, who was working as Accounts Officer at Palam Airport in the year 1986. This witness has proved the cheque forwarding memo Ex.PW.2/A. He has further deposed that the document Ex.New PW1/B is the carbon copy of Ex.New PW1/A, for giving the additional information, relating to accounts expenses under CFMS / Staff Welfare Account.
iv) New PW4 Sh. Shashi Kant Oberoi, who was working as Sr. CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 17 of 67 Special Judge, CBI01, Central, Delhi 18 Accounts Assistant, Indian Airlines at Palam Airport, Delhi, during the year 198990, who has deposed about the procedure to be adopted for preparation of cheques regarding CFMS claims and its delivery to the concerned employees.
v) New PW5 Naresh Kr. Jain, who was posted as Finance Manager Northern Region, Indian Airlines, Thapar House, New Delhi, in January 1991. This witness was also the authorized signatory of the cheques.
vi) New PW6 Patel Ram Parashar, who was posted as Chief Pharmacist at the dispensary at Palam Airport, New Delhi, at the relevant time and was processing the CFMS bills.
vii) New PW7 Vakil Shah, who was posted as Sr. Superintendent in Medical CFMS Cell at Palam Airport in the month of October, 1991. This witness has deposed that the specimen handwriting and signatures of accused Ashok Kr. Sehgal, marked as S6 to S10 Ex.NewPW6/D1 to Ex.NewPW6/D5 and marked as S52 to S82 Ex.NewPW6/E1 to Ex.NewPW6/E37, were taken, in his presence, in the CBI CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 18 of 67 Special Judge, CBI01, Central, Delhi 19 office.
viii) New PW8 Raghvir Singh Narwal, who was posted as Sr. Chief Pharmacist in Indian Airlines, Medical Section at Palam Airport, during the relevant time and has deposed that CFMS claims were processed and scrutinized in CFMS Cell office branch, as per the entitlement of the employees.
ix) New PW9 Jitender Singh, who was posted as Account Asstt. in Accounts Section at Palam Airport, during the relevant time, where accused Ashok Kumar was his senior. This witness has proved the relevant entry in Misc. Payment Register pertaining to voucher No. 1796. The entry at page 167 of the register has been proved as Ex.New PW9/A.
x) New PW10 Sh. Ashok Kr. Goel, who was posted in Bill Passing Section at Safdarjung Airport, during the relevant time. This witness has deposed that the specimen handwriting and signatures of accused Ashok Kr. Sehgal marked as S6 to S10 and S53 to S82, were taken, in his presence, in the CBI office.
xi) New PW11 Rajvir Singh, who was posted as Office CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 19 of 67 Special Judge, CBI01, Central, Delhi 20 Superintendent in Medical Section at Palam Ariport, during the relevant time. This witness has proved the CFMS medical claim register (front page) as Ex.New PW11/A.
xii) New PW12 Subhash Chander, who was posted as Dy. Finance Manager at Palam Airport, during the relevant time. He had made scrutiny of the past record, on the information of fraudulent payments under CFMS sheet and found that a large number of CFMS sheets were prepared fraudulently and sent to the Finance Department for processing the payments. After scrutiny, he prepared the detailed reports Ex.NewPW12/A and Ex.PW.12/B.
xiii) New PW13 Subhash Chander Yadav, Superintendent of Police, CBI, who is the Investigating Officer of the present case.
13. After completion of the prosecution evidence, statements of accused persons, u/s 313 Cr.PC were recorded, wherein, they have denied all the incriminating evidence against them and have stated that they are innocent and have been falsely implicated in CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 20 of 67 Special Judge, CBI01, Central, Delhi 21 this case. It has been stated by the accused Ashok Kumar Sehgal that he has not committed any offence, as alleged. He has further stated that the case has not been properly investigated by the IO. He has further stated that he told the IO that his duty timings were from 9.15 a.m. to 5.20 p.m. and that he could not left the office before 2.00 p.m. He has further stated that the working hours of the bank were from 10.00 am to 2.00 pm and the distance between Palam Airport, Safdarjung Airport and Khan Market, is about 20 KM. He has further stated that as per rule, he was not allowed to avail half day leave from the office. He has further stated that since it was a security prone area, so the employees upto GradeIX, were required to punch their cards for getting in / out. He has further stated that his leave record is also not placed on the judicial record.
14. Accused N.Bhattacharjee has also stated that he has been falsely implicated in this case by the CBI, for the reasons best known to them and he was not at fault.
CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 21 of 67 Special Judge, CBI01, Central, Delhi 22
15. Accused Ashok Kumar Sehgal and N.Bhattarcharjee have not led any evidence in their defence despite ample opportunity.
16. After completion of trial, final arguments were addressed by Sh. Praneet Sharma, Ld. PP for the CBI, Sh. M.P.Singh, Advocate, for accused Ashok Kumar Sehgal and Shri Anil Panwar, Advocate, for accused N.Bhattacharjee. Arguments on behalf of the Prosecution
17. It has been argued by the Ld. PP for the CBI that the accused Ashok Kumar Sehgal was a senior accounts officer in Indian Airlines and Indian Airlines was having a CFMS scheme for reimbursement of the claims of the medical bills, of its employees and when an employee makes an application to the medical section of Indian Airlines, for claim of his medical bill, regarding his treatment, the same is processed and scrutinized by the medical officers of the Indian Airlines and then, a statement of CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 22 of 67 Special Judge, CBI01, Central, Delhi 23 payment is sent to the accounts section, for preparation of the vouchers. He has also argued that on the basis of the statement of payment, a cheque forwarding voucher is prepared in the accounts section and thereafter it is forwarded to the payment section for preparation of the cheque in the name of the concerned employee and thereafter, the cheque is released to the applicant. He has further argued that in the present case, cheque No. 842853, dated 11.09.1990 Ex.PW.6/B1, (Ex.NewPW1/A), was prepared in the name of the accused N.Bhattacharjee, on the basis of the cheque forwarding voucher No. 1796, dated 10.09.1990, Ex.NewPW1/B and the same was duly received by accused N.Bhattacharjee, vide voucher Ex.NewPW2/A. He has further argued that after receiving the cheque Ex.PW.6/B1, the accused N.Bhattacharjee, in conspiracy with coaccused Ashok Kumar Sehgal, deposited this cheque, in his account No. 14454 at PNB Kalkaji, New Delhi, through payinslip Ex.PW21/E. This cheque was duly cleared and the amount of Rs.4,015/ was credited to the account of accused N.Bhattacharjee. Thereafter, CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 23 of 67 Special Judge, CBI01, Central, Delhi 24 accused N.Bhattacharjee, in conspiracy with accused Ashok Kumar Sehgal, issued cheque No. 616554, dated 26.09.1990, Ex.PW21/F, in his favour and the said cheque was duly credited in the savings bank account No. 4645 of accused Ashok Kumar Sehgal, on 05.10.1990.
18. Ld. PP for the CBI has further argued that the prosecution witnesses and the documents on record, have proved the above circumstances, which clearly indicate that accused Ashok Kumar Sehgal and N.Bhattacharjee had connived together, for cheating the Indian Airlines, for a sum of Rs.4,015/.
19. However, during the course of arguments, the Ld. PP for the CBI has conceded that no evidence has come on record, during the trial, regarding the preparation of either the CFMS claim vouchers or the cheque release voucher or the preparation of the cheque of Rs.4,015/, dated 11.09.1990 Ex.PW6/B1 (Ex.NewPW1/A), by any of the accused persons.
CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 24 of 67 Special Judge, CBI01, Central, Delhi 25
20. Ld. PP for the CBI has further argued that the Investigating Officer had seized the various documents, during the investigation and the same have been placed on record and during the investigations, IO also obtained the specimen writings and signatures of both the accused persons and the writings and signatures of the accused persons, were sent for expert opinion, to CFSL and the CFSL report has corroborated the prosecution case and it has been established on record that the accused N.Bhattacherjee had duly received the cheque Ex.PW6/B1 (Ex.NewPW1/A), as the voucher Ex.NewPW2/A, bears his signatures on its back, in acknowledgment of the receipt of the cheque.
21. Ld. PP for the CBI has further argued that the circumstances, under which the accused N.Bhattacherjee issued the cheque of Rs.4015/, in favour of coaccused Ashok Kumar Sehgal, are to be explained by the accused persons themselves, as per the CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 25 of 67 Special Judge, CBI01, Central, Delhi 26 provisions of Section 106 of the Indian Evidence Act, 1872. He has prayed that the prosecution has successfully proved the charges for the offences punishable u/s 120B r/w Sec. 13 (1)(d) and 13 (2) of the Prevention of Corruption Act, 1988, against both the accused persons and, therefore, both of them, be held guilty and convicted, for the said offences.
Arguments on behalf of accused Ashok Kumar Sehgal
22. It has been argued by Shri M.P.Singh, Advocate, for accused Ashok Kumar Sehgal that there is no evidence on record to connect the accused Ashok Kumar Sehgal, with the commission of the offences punishable u/s 468/471 IPC. He has argued that no evidence has come on record that accused Ashok Kumar Sehgal had prepared any voucher or the CFMS sheet, on the basis of which the cheque Ex.PW6/B1 (New Ex.PW1/A), was prepared. He has also argued that the aforesaid cheque was never received by accused Ashok Kumar Sehgal and the same was never deposited by him in the account of coaccused CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 26 of 67 Special Judge, CBI01, Central, Delhi 27 N.Bhattacharjee and no evidence has come on record, in this regard. He has further argued that accused Ashok Kumar Sehgal had received a sum of Rs.4,015/, from the coaccused N.Bhattacharjee, vide cheque No. 616554 Ex.PW21/F, dated 26.06.1990, for the repayment of the loan, which the accused Ashok Kumar Sehgal had advanced to the coaccused N.Bhattacharjee. He has further argued that by receiving the amount of Rs.4,015/, from the coaccused N.Bhattacharjee, it cannot be said that accused Ashok Kumar Sehgal had conspired together with the coaccused N.Bhattacharjee, for committing the offence u/s 120B IPC, r/w Sec. 420 IPC. He has further argued that the evidence led by the prosecution is insufficient to hold the accused Ashok Kumar Sehgal guilty and, therefore, he may be acquitted, by this court.
Arguments on behalf of accused N.Bhattacharjee
23. Shri Anil Panwar, Advocate for accused N.Bhattacharjee has argued that accused N.Bhattacharjee had never applied for any CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 27 of 67 Special Judge, CBI01, Central, Delhi 28 CFMS claim and he had not prepared any voucher or any other document, on the basis of which, the cheque Ex.PW6/B1 was prepared. He has also argued that the said cheque was never received by the accused N.Bhattacharjee and the same was never deposited by him, in his account. He has further argued that even the payinslip does not bear the signature or the writing of accused N.Bhattacharjee and, therefore, there is no evidence on record to prove any conspiracy, between accused N.Bhattacharjee and coaccused Ashok Kumar Sehgal. He has further argued that accused N.Bhattacharjee had taken a loan from the coaccused Ashok Kumar Sehgal and, therefore, accused N.Bhattacharjee had paid the loan amount to the accused Ashok Kumar Sehgal, vide cheque No. 616554, dated 26.09.1990. He has further argued that the provisions of Section 106 of Indian Evidence Act, are not applicable to the facts and circumstances of this case and, therefore, the accused N.Bhattacharjee be acquitted for the offences, alleged against him.
CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 28 of 67 Special Judge, CBI01, Central, Delhi 29 OBSERVATIONS
24. I have carefully gone through the case file and I have given my considered thoughts to the arguments addressed by the Ld. PP for the CBI and the Ld. defence counsels.
25. Perusal of the record shows that PW12, Sh. Subhash Chander, has deposed that in the year 1990, he was posted as Dy. Finance Manger at Palam Airport, New Delhi, and was dealing with different sections of the office, including the Medical Claim Bills in the Bill Passing Section. He has further deposed that during the year 1990, it was brought to his notice that in some cases, fraudulent payments have been made under the CFMS Sheets. Thereafter, he made scrutiny of past record and found that there were quite a number of cases, where the sheets were prepared fraudulently and were sent to the finance department for processing the payment. After scrutiny of the record, he prepared the detailed report Ex.NewPW12/A. This witness has further deposed that during scrutiny of record, it was also brought to his CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 29 of 67 Special Judge, CBI01, Central, Delhi 30 notice that one fake sheet, regarding CFMS claim, regarding hospitalization, was received in the Bill Passing & Payment Section and the dealing staff Sh. S.K. Oberoi had doubts that such sheet was not signed by the Medical Officer and thereafter, the medical section, after verifying the sheet, told that the sheet was not prepared by them and was never got signed by the medical officer. The said sheet was not passed for payment and was handed over to the vigilance officer, for further investigations. This witness has further stated that he made the scrutiny of the past records and prepared another detailed report Ex.NewPW12/B.
26. Perusal of the record further shows that the reports Ex.NewPW12/A and Ex.NewPW12/B, have mentioned the names of the persons, to whom the fraudulent payments have been made against the false CFMS claims. These reports further indicate that a fraudulent payment of Rs.4015/ was made to accused N. Bhattacharjee, vide cheque No. 842853, dated CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 30 of 67 Special Judge, CBI01, Central, Delhi 31 11.09.90, and the same was credited in his savings bank account on 25.09.90.
27. During the trial, the prosecution has examined several witnesses, who have explained the procedure for the CFMS claims in Indian Airlines. PW6 Smt. Veena Sethi, who was working as Accounts Officer, in Cash & Bank Section, Northern Region, Thapar House, Indian Airlines, on 11.09.91 has deposed that for making CFMS payments to the employees of Palam Airport, her cash & Bank Section used to receive statements of payments along with vouchers from Palam Airport, which were processed by the staff in the Section and cheques were typed out and checked and verified and put up for signatures, to the Bank Signatories. Later on, the copy of the voucher along with the cheque processed was sent to Palam Airport for handing over the same to the staff against signatures. She had further deposed that Sh. Santokh Singh and Sh. A.N. Vij were the signatories of the various cheques, besides other signatories A.K. Goel and CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 31 of 67 Special Judge, CBI01, Central, Delhi 32 O.D. Sharma. She had further deposed that the cheque No. 842853 dated 11.09.90, Ex.PW6/B (Ex.NewPW1/A), bears the signatures of issuing authority Santokh Singh and A.N. Vij.
28. NewPW2 Sh. Sunil Mathur, who was Sr. account assistant, in the year 1990, has deposed that on receipt of statements of payments to employees, under CFMS, the cheque forwarding voucher was prepared and the same was sent to Safdarjung Airport, for making the payments through cheque and a cheque against the payment is made if the payment is more than Rs. 2500/. This witness has proved the cheque forwarding voucher No. 1796, dated 10.09.90 for Rs.4015/ favouring accused N. Bhattacharjee as Ex.NewPW1/B. This witness has further deposed that the said voucher was prepared in his office and was sent to the account section of Safdarjung Airport, for preparation of the cheque, on which, the cheque Ex.NewPW1/A was received in his office in the name of N. Bhattacharjee and the same was delivered to the accused N. Bhattacharjee, against proper receipt. CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 32 of 67 Special Judge, CBI01, Central, Delhi 33 He has further deposed that vide cheque forwarding voucher Ex.NewPW2/B, the cheque was delivered to accused N. Bhattacharjee and his signatures were obtained on the back of the voucher. He has further deposed that the entry in this regard was also made in the miscellaneous payment register, at page167, and the relevant entry is Ex.NewPW2/B.
29. NewPW3 Om Prakash Sharma, who was working as accounts officer at Palam Airport, has also deposed that employees of Indian Airlines submit their Contributory Family Medical Scheme claim bills to the medical department, where the same were processed and passed by the medical officer, for payment. Medical section used to prepare the statements of payments to the employees in prescribed proforma and get it signed by the medical officer and then, it used to come in the account section (Bill Passing) where the concerned staff used to scrutinize the same for making the payment in cash or by cheque. If the claim amount was less than Rs.2500/ then the payment CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 33 of 67 Special Judge, CBI01, Central, Delhi 34 was to be made in cash and otherwise, by cheque. Thereafter, through a forwarding memo, the same was sent to Safdarjung Airport, where the accounts department used to prepare the cheque and send it to him along with the voucher for delivery to the individual concerned employee. This witness has proved the cheque forwarding memo Ex.NewPW2/A. PW4 Shashi Kant Oberoi, who was posted as Sr. accounts Assistant, in Indian Airlines, Palam Airport, in the year 198990, has also deposed in a similar fashion.
30. Perusal of the record further shows that prosecution has also examined various witnesses from the medical section of Indian Airlines. PW14 Dr. Ganesh Shankar Pandey has deposed that during the year 198990, he was posted at Palam Airport as Medical officer, and all the medical officers posted there were empowered to pass the medical claims preferred by the employees of the Indian Airlines. All the medical claims were processed and passed in his CFMS Section. He has also CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 34 of 67 Special Judge, CBI01, Central, Delhi 35 deposed that every sheet pertaining to CFMS claims were entered in the register, 'CFMS hospital claim register', maintained by the staff. The page4 of the said register has been proved on record as Ex.PW14/A. In his crossexamination he has deposed that if CFMS claim sheets are not entered in the claim medical register of the hospital, it shows that no claim was preferred by the employee concerned.
31. PW6 Sh. Patel Ram Parashar, the Chief Pharmacist in the dispensary at Palam Airport, New Delhi, has deposed that he was handling the dispensing and processing of the CFMS bills and on receipt of the CFMS bills from the concerned employees, the same are entered in two hospital bill register and the other register and the same were processed by the Pharmacist. Thereafter, the registration numbers were given to the respective bills and the pharmacist was to ensure that the required documents were attached with the medical claims along with the prescription and other documents. He was to ensure the CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 35 of 67 Special Judge, CBI01, Central, Delhi 36 genuineness of the documents, by tallying with each other, and thereafter the bills were handed over to the Office Asstt./ Superintendent for processing. The office assistant used to make entry in medical claim file of every claimant to have a check of his claims and thereafter, the office assistant used to put up the claims bills before the Medical Officer. The Medical Officer used to check the genuineness of the bills and kinds of diseases, for which the bills are permissible under the rules. Thereafter, claim sheets were prepared by office assistants and checked and signed by the doctor. Thereafter, the bills were passed by the doctor and three copies of the payment sheets, out of five, were sent to account/finance department and one copy of the payment sheet was attached with the master file of the office and one copy was used to be attached with the bill and thereafter, the finance department used to pay, as per order. PW8 Raghbir Singh Narwal, Sr. Chief Pharmacist, Indian Airlines, Medical Section of Palam Airport, New Delhi, has also deposed in a similar fashion. CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 36 of 67 Special Judge, CBI01, Central, Delhi 37
32. Perusal of the record and the reports Ex.NewPW12/A & Ex.NewPW12/B and the CFMS vouchers Ex.NewPW1/B & Ex.NewPW2/A, indicate that a fraudulent claim of Rs.4015/ was passed in favour of accused N. Bhattacharjee. There is no documents on record which indicate that accused N. Bhattacharjee, has preferred any such medical claim. It has also come on record that in pursuance to these vouchers, cheque No. 842853, dt. 11.09.90 for Rs.4015, Ex.PW6/B1 (Ex.NewPW6/B & Ex.NewPW1/A) was prepared in the name of accused N. Bhattacharjee and the same was delivered to him, against voucher Ex.NewPW2/A.
33. During the course of investigations, the IO had taken the specimen signatures of accused N. Bhattacharjee in presence of PW17 Sudan Pal and NewPW10 Ashok Kumar Goel. PW17 Sudan Pal has categorically stated that on 20.12.91, he was called to the CBI office, where the specimen writings /signatures of accused Ashok Sehgal were taken in his presence. He has CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 37 of 67 Special Judge, CBI01, Central, Delhi 38 proved the sheets containing specimen signatures of accused Ashok Kumar, as Ex.PW25/A1 to Ex.PW25/A5. This witness has also proved that the specimen writings of accused Ashok Kumar were also taken in his presence and the same have been proved on record as Ex.PW25/B1 to Ex.PW25/B24. NewPW 10 Ashok Kumar Goel has also deposed that the specimen writings and signatures of accused Ashok Kumar Sehgal on sheets marked as S6 to S10 Ex.NewPW10/C and sheets marked as S53 to S82 (Ex.NewPW10/D collectively), were taken in his presence. NewPW7 Vakil Shah has also deposed that the specimen handwriting and signatures of accused Ashok Sehgal were taken at the CBI office, in his presence, vide sheets marked as S6 to S10 Ex.NewPW6/D1 to Ex.NewPW6/D5 and sheets marked as S55 to S82, Ex.NewPW6/E1 to Ex.NewPW6/E37.
34. During the investigations, the specimen signatures of accused N. Bhattacharjee were also taken by the investigating officer, NewPW13 Subhash Chander Yadav, Superintendent of CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 38 of 67 Special Judge, CBI01, Central, Delhi 39 Police, on 12.11.1991, on the sheets marked as S1 to S82, which are Ex.NewPW13/G (Collectively). PW1 Ashok Kumar, has also deposed that on 12.11.91, he was called to the security office at Indian Airlines, Palam Airport, where the specimen signatures of accused N. Bhattacharjee were taken by the IO, in his presence. This witness has proved the specimen signatures sheets marked as S103 to S107 as Ex.PW1/A1 to Ex.PW1/A5.
35. The specimen signatures and handwritings of accused N. Bhattacharjee as well as of accused Ashok Kumar Sehgal, were sent to GEQD, Shimla, for expert opinion and all the questioned documents and signatures were duly examined by PW26 Dr. B.A. Vaid, with the specimen signatures and handwritings of the accused persons. PW26 Dr. B.A. Vaid has proved his opinions No. CX3/92 and CX4/92 dated 29.1.92, vide report Ex.PW24/H. The report Ex.PW24/H has failed to establish on record that the voucher Ex.NewPW2/A was bearing the signatures (Q57) of accused N. Bhattacharjee on its back. Even by naked eye, it is CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 39 of 67 Special Judge, CBI01, Central, Delhi 40 observed that the accused N. Bhattacharjee had signed on the specimen signatures sheet in 'English', whereas, the voucher Ex.NewPW2/A, bears the alleged signatures of accused N. Bhattacharjee in 'Hindi'. No other document was found to have the signatures or writings of even the accused Ashok Kumar.
36. It has been specifically mentioned in the report Ex.NewPW24/H, that the questioned writings and signatures stamped and marked Q7 to Q34, Q36 to Q43, Q45, Q56 & S6 to S82 have been written by one and the same person. But, the voucher Ex.NewPW2/A bears the questioned signatures mark Q57, on its back. It has been specifically mentioned in the report Ex.NewPW24/H that it has not been possible to express any definite opinion on rest of the writings, on the basis of the material supplied. Therefore, even the corroborative evidence led by the prosecution, in the form of CFSL report/ expert opinion, regarding the receipt of the cheque Ex.NewPW1/A, by accused N. Bhattacharjee, has failed to establish this fact on record. CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 40 of 67 Special Judge, CBI01, Central, Delhi 41
37. Perusal of the record further indicates that there is no material evidence to establish the fact that either of the accused had prepared any document for getting the fraudulent cheque for a sum of Rs.4015/, prepared in the name of accused N. Bhattacharjee. However, there is enough material on record to prove the fact that the cheque Ex.NewPW1/A was deposited in the savings bank account of accused N. Bhattacharjee and the same was duly cleared. After its clearance, the accused N. Bhattacharjee issued a cheque for the same amount, in the name of coaccused Ashok Kumar Sehgal, bearing cheque No. 616554 dated 26.9.90, drawn on Punjab National Bank, Kalkaji, New Delhi. The said cheque was duly issued by accused N. Bhattacharjee and was duly credited in the account of co accused Ashok Kumar. During the trial PW21 Sukesh Johri has proved the various documents pertaining to the savings bank account, in the name of accused N. Bhattacharjee at Punjab National Bank, Kalkaji, New Delhi, with account No. 14454. He CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 41 of 67 Special Judge, CBI01, Central, Delhi 42 has categorically stated that accused N. Bhattacharjee was having savings bank account with PNB, Kalkaji, New Delhi, with account N0. 14454. The teller card of the account has been proved on record as Ex.PW21/B. The specimen signatures of accused N. Bhattacharjee have been proved on record as Ex.PW21/C. This witness has also deposed that cheque Ex.PW6/B1 (Ex.NewPW1/A) was duly deposited in the account of accused N. Bhattacharjee, through payinslip Ex.PW21/E. This witness has further deposed that the amount of Rs.4015/ was duly credited in the account No. 14454 of accused N. Bhattacharjee, vide payinslip dated 22.09.90 Ex.PW21/E, and the same is reflected in the ledger account of the accused. This witness has also proved the ledger account as Ex.PW21/D. This witness has further deposed that accused N. Bhattacharjee, issued cheque No. 616554 Ex.PW21/F in favour of accused Ashok Kumar and the said cheque was deposited at Central Bank of India, Khan Market Branch, New Delhi, on 05.10.90, and on presentation of the said cheque, the account of accused N. CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 42 of 67 Special Judge, CBI01, Central, Delhi 43 Bhattacharjee at Punjab National Bank, Kalkaji, New Delhi, was debited by Rs.4015/ and the account of Ashok Kumar at Central Bank of India, Khan Market, New Delhi, was credited with this amount.
38. PW18 Mahender Kumar Bansal, the SubAccountant from Central Bank of India, Khan Market Branch, has also deposed that a sum of Rs.4015/ was deposited, on 05.10.90 through pay in slip Ex.PW21/E and cheque No. 616554 dated 26.9.90 Ex.PW21/C.
39. PW25 Manoj Kumar Sharma has also deposed that accused Ashok Kumar was having SB Account No. 4645 at Central Bank of India, Khan Market, New Delhi. The specimen signature card of the savings account of Ashok Kumar has been proved on record as Ex.PW24/B1. The payinslip for various cheques, deposited in the savings bank account of accused Ashok Kumar, have been placed on record Ex.PW24/D3 to Ex.PW24/D10. CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 43 of 67 Special Judge, CBI01, Central, Delhi 44
40. During the course of investigations, IO NewPW13 Subhash Chander Yadav, SP, had collected various documents from the Indian Airlines as well as from Punjab National Bank and the Central Bank of India. The various seizure memos have been proved by him as Ex.NewPW13/B, Ex.NewPW13/C, Ex.NewPW13/E. This witness has also proved the letter written by him to Central Bank of India, Khan Market, dt. 16.4.91, as Ex.NewPW13/D. The payinslip dated 01.10.90 regarding deposition of the cheque No. 616554 for Rs.4015/ in account No. 4645 of accused Ashok Kumar has been proved on record as Ex.NewPW13/F. The copy of the FIR has been proved by this witness as Ex.NewPW13/A.
41. The evidence on record has established that the cheque Ex.PW6/B1 ( Ex.NewPW1/A) dated 11.09.90 for Rs.4015/ in the name of Sh. N. Bhattacharjee, was issued in the name of N. Bhattacharjee, without any CFMS claim by him and the same was CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 44 of 67 Special Judge, CBI01, Central, Delhi 45 duly deposited in his savings bank account No. 14454 at Punjab National Bank, Kalkaji, New Delhi. It is also established on record that this cheque was duly encashed in his account and thereafter, he issued cheque Ex.PW21/F (Ex.PW27/C) for a sum of Rs. 4015/ dated 26.9.90 in favour of coaccused Ashok Kumar and the said cheque was duly deposited by accused Ashok Kumar in his savings bank account at Central Bank of India, Khan Market, New Delhi. The amount of Rs.4015/ was duly credited to the account of accused Ashok Kumar.
42. During the course of arguments, the main contention of the Ld. defence counsels has remained that the accused persons have never got prepared or issued any cheque in their favour and they have not received the cheque Ex.NewPW1/A and the same was never received by accused N. Bhattacharjee and was never deposited by him in his savings bank account at PNB, Kalkaji, New Delhi. It is also argued by the Ld. defence counsel that the accused N. Bhattacharjee issued cheque No. 616554 dated CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 45 of 67 Special Judge, CBI01, Central, Delhi 46 26.09.90 Ex.PW21/F (Ex.PW27/C), in favour of accused Ashok Kumar, only to discharge his friendly debt. But, I do not find any merit in the above submissions of the Ld. defence counsel as this defence has been taken by them only during the course of final arguments. Even in their statements, u/s. 313 Cr.P.C., no such defence has been taken by them. During the entire trial, no evidence has come on record in this regard and the accused persons have failed to produce any evidence in their defence to corroborate the fact that a loan of Rs.4015/ was advanced by accused Ashok Kumar to accused N. Bhattacharjee. Even otherwise, as per section 106 of the Indian Evidence Act, 1872, it is for the accused persons to explain the circumstances under which the cheque Ex.NewPW1/A was got deposited in the savings account of accused N. Bhattacharjee and thereafter, under what circumstances accused N. Bhattacharjee issued a cheque for the same amount, in the name of coaccused Ashok Kumar Sehgal. But, the accused persons have failed to discharge this burden also.
CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 46 of 67 Special Judge, CBI01, Central, Delhi 47
43. It was held by the Hon'ble Supreme Court, in case titled as "Krishna Kumar vs. Union of India", reported as AIR 1959 Supreme Court 1390, as under :
9. It is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the goods of his master. The question is one of intention and not a matter of direct proof but giving a false account of what he has done with the goods received by him may be treated a strong circumstances against the accused person. In the case of a servant charged with misappropriating the goods of his master the elements of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods, that he was under a duty to account to his master and had not done so. If the failure to account was due to an accidental loss then the facts being within the servant's knowledge, it is for him to explain the loss. It is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate him. If these facts are within the knowledge of the accused then he has to prove them. Of course the prosecution has to establish a prima facie case in the first instance. It is not enough to establish facts which give rise to a suspicion and then by reason of S. 106 of the Evidence Act to throw the onus on him to prove his innocence. See Harries C.J. in Emperor vs. Santa Singh, AIR 1944 Lah 339 at p. 345. In CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 47 of 67 Special Judge, CBI01, Central, Delhi 48 the present case the appellant received the consignment of goods which came from Tatanagar. It is admitted that he removed them and it was found by the High Court that they never reached the Central Tractor Organization. He gave an explanation in court which has been found to be false. Before Mr. F.C. Gora he made a statement to the effect that he had lost the Railway Receipt and therefore had never got the delivery of the goods which was also false. In these circumstances, in our opinion, the court would be justified in concluding that he had dishonestly misappropriated the goods of the Central Tractor Organization. The giving of false explanation is an element which the Court can take into consideration (Emperor v. Chattur Bhuj, ILR 15 Pat 108 ; (AIR 1936 Pat 350). In Rex V. William (1836) 7 C and P 338 Coleridge J. charged the jury as follows :
"The circumstances of the prisoner having quitted her place, and gone off to Ireland, is evidence from which you may infer that she intended to appropriate the money : and if you think that she did so intend, she is guilty of embezzlement".
Again in Reg v. Lynch, (1854) 6 Cox CC 445, Moore J., said :
"You have further the fact that, after getting the money, the prisoner absconded and did not come back till he was in custody. You may infer that he intended to appropriate this money, and if so, he is guilty of embezzlement".
(emphasis supplied by me)
44. It was held by the Hon'ble Allahabad High Court, in case CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 48 of 67 Special Judge, CBI01, Central, Delhi 49 titled as "Nilamber vs. State", reported as AIR 1957 Allahabad 381 ( V 44 C 119 June ), as under :
7. The next point urged by the learned counsel for the appellant was that although admittedly specimen signatures of the complaint Mohan Singh, Sher Singh and Umed Singh were taken by the investigating officer for comparison with the signatures on the money order form and the acknowledgment receipt, expert evidence on that point was not secured by the prosecution. It is to be noted, however, that the appellant himself admitted in his statement under S. 342, Cr. P. Code, that the signature in question on the money order form, including the one on the acknowledgment receipt portion of it, were not the signatures of any of these three persons.
Where there was the necessity of the prosecution proving a fact which stood admitted ? There was no other point taken by the learned counsel for the appellant except that the sentence imposed upon the appellant was severe. Before coming to the question of sentence it may be stated that there are two circumstances which lend such support to the prosecution case as to establish it.
In the first place, the prosecution having proved, and the appellant having admitted that the payment was not made to, nor the money order signed by, Mohan Singh or by the only two other students, Sher Singh and Umed Singh, who lived in the same tenements with Umed Singh, it was for the appellant to prove who that boy was through whom the appellant professes to have made the payment and obtained CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 49 of 67 Special Judge, CBI01, Central, Delhi 50 the signatures of Mohan Singh. The only possible boys known were produced by the prosecution. Who the other particular boy referred to by the appellant was, could only be known to the appellant.
That was a fact which was especially within the knowledge of the appellant, and burden of proving that fact therefore was upon the appellant, within the purview of S. 106, Evidence Act. The present case therefore belonged to that exceptional class of cases in which, in the words of their Lordships of the Supreme Court in Shambhu Nath Mehra vs. The State of Ajmer, 1956 SCR 199 ; ((S) AIR 1956 SC 404) (A).
"It would be impossible, or at any rate disportionately difficult, for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience."
The burden which, in view of the evidence adduced by the prosecution, had shifted on to the defence in this case was not discharged. As adverted to already, the appellant produced no evidence as to whom actually he had made the payment. He did not say that he even made an attempt to search for the boy to whom he professes to have made the payment.
(emphasis supplied by me)
45. In the present case also, both the accused persons have utilized the amount of Rs.4015/, illegally and have not given any intimation to their department, regarding the credit of Rs.4015/ in CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 50 of 67 Special Judge, CBI01, Central, Delhi 51 the their savings bank accounts. None of the accused persons have asked any query, either from the Bank officials or from their employer, regarding the false credit of cheque Ex.NewPW1/A, in the account of accused N. Bhattacharjee and the subsequent issuance of cheque Ex.PW21/F, by him, in favour of coaccused Ashok Kumar Sehgal. Both the accused persons have misappropriated the said amount and have not returned back the said amount to their employer, till date.
46. In view of the circumstances of the case and the material evidence on record, as discussed above, I am of the considered opinion that prosecution has successfully proved its case against both the accused persons, beyond a shadow of doubt, for the offence punishable u/s. 120B of The Indian Penal Code r/w sec. 13(1) (d) punishable u/s. 13(2) of The Prevention of Corruption Act, 1988, and for the offences u/s. 420 IPC & u/s. 13(1) (d) punishable u/s. 13 (2) of the Prevention of Corruption Act, 1988. Both the accused are therefore, held guilty & convicted for the CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 51 of 67 Special Judge, CBI01, Central, Delhi 52 said offences, accordingly. But, the prosecution has miserably failed to prove its case for the offences punishable u/s. 468/471 IPC, against the accused Ashok Kumar Sehgal and therefore, he is accordingly acquitted for the offences u/s. 468/471 IPC.
It is ordered accordingly.
Let the convicts be heard on the point of sentence on the next date of hearing.
Announced in open Court
on 16 day of August, 2014 BRIJESH KUMAR GARG
th
Special Judge:CBI01
Central District. Delhi
CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 52 of 67 Special Judge, CBI01, Central, Delhi
53
IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI CC No.251/07 RC : 17(A)/91 PS : CBI/ACB/New Delhi U/s : 120B IPC r/w Sec. 13 (1) (d) punishable u/s 13(2) 420/468 & 471 of the IPC CBI Vs. 1) Ashok Kumar Sehgal
2) Nilotpal Bhattacharjee ORDER ON SENTENCE
1. This Court, vide judgment dated 16.08.14, found the convicts Ashok Kumar Sehgal and N. Bhattacharjee, guilty of offences U/s 120B IPC r/w section 420 IPC, sec. 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988, and also for the substantive offences U/s 420 IPC & Sec. 13(1) (d) punishable under Section 13(2) of The Prevention of Corruption Act, 1988.
2. I have heard Sh. Praneet Sharma, Ld. PP for CBI, Sh. M.P. Singh and Sh. B.B. Sharma, Advocates, for the convict Ashok CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 53 of 67 Special Judge, CBI01, Central, Delhi 54 Kumar Sehgal and Sh. Anil Panwar, Advocate, for convict N. Bhattacharjee, at length.
3. Sh. Praneet Sharma, Ld. PP for the CBI, has prayed for taking a strict view of the matter and grant of exemplary punishment to the convicts. He has further argued that the corruption has taken its roots, deep in society and therefore, the maximum punishment be awarded to the convicts to give a message to the society that the corruption is to be dealt with heavy hands. Ld. PP for the CBI has relied upon the following judgments, in support of his contentions :
(i) State Through S.P. New Delhi Vs. Ratan Lal Arora, reported as Appeal (crl.) 532 of 2004.
(ii) State of Madhya Pradesh & Ors. Vs. Shri Ram Singh, reported AIR 2000 SC 870.
4. On the other hand, Ld. Counsels for convict Ashok Kr. Sehgal have prayed for taking of a lenient view. They have argued that the convict is about 57 years of age and is having two minor CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 54 of 67 Special Judge, CBI01, Central, Delhi 55 children and is the sole bread earner for his family as his wife is not working. They have also argued that the convict is not a habitual offender and is having no previous criminal record and is facing trial since the year 1991. The Ld. defence counsels have relied upon the following judgments, in support of their contentions:
(i) Gopal Singh Vs State of Uttarakhand, reported as 2013 Cri. L.J. 3872 (SC)
(ii) R. Venkatakrishnan Vs Central Bureau of Investigation, reported as AIR 2010 SC 1812
5. The Ld. Counsel for convict N.Bhattacharjee has argued that the convict is about 75 years of age and is having two children and is suffering from serious age related ailments. He has also argued that the convict is not a habitual offender and is having no previous criminal record and is facing trial since the year 1991 and therefore, a lenient view may be taken against him. The Ld. defence counsel has relied upon the following judgments, in support of his contentions:
CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 55 of 67 Special Judge, CBI01, Central, Delhi 56
(i) Hari Kishan Bansal Vs. CBI, reported as 2013 Legal Eagle (DHC) 552
(ii) K.S. Panduranga Vs. State of Karnakata, reported as 2013 Cri. L.J. 1665 (SC)
(iii) Roop Chand Vs. State (CBI), reported as 2011 Legal Eagle (DHC) 42
(iv) Mohan Lal Vs. State, reported as 2012 Law Suit (Raj.) 1592
6. I have carefully gone through the case file and I have given my considered thoughts to the arguments addressed by the Ld. PP for the CBI and the Ld. defence counsels. I have also perused the various judgments, cited by the Ld. counsels.
7. The provisions of Section 120B IPC and Section 420 IPC are reproduced below for ready reference 120B. Punishment of Criminal Conspiracy - (1) whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 56 of 67 Special Judge, CBI01, Central, Delhi 57 (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
420. Cheating and dishonestly inducing delivery of property Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
8. The provisions of Section 13 of The Prevention of Corruption Act, 1988, are also reproduced below, for ready reference:
13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal conduct
(a) If he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuberation as a motive or reward such as is mentioned in Section 7; or
(b) If he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 57 of 67 Special Judge, CBI01, Central, Delhi 58 knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so; or
(d) If he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation. For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 58 of 67 Special Judge, CBI01, Central, Delhi 59 (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a terms which shall not less than one year but which may extend to seven years and shall also be liable to fine.
9. In the present case, the allegations proved against the convicts are quite serious in nature. The convicts had conspired together and had cheated their employer, i.e., the Indian Airlines, of large sum of money. Various charge sheets have been filed by CBI against the convict Ashok Kumar Sehgal and various other accused persons. In this case, the convicts have connived together and in pursuance to their illegal designs and common object of the conspiracy, a cheque worth Rs.4015/ was deposited in the savings account of convict N. Bhattacharjee and convict N. Bhattacharjee thereafter, issued a cheque for the same amount in the name of convict Ashok Kr. Sehgal. From the material on record, it is clear that convict N. Bhattacharjee had actively participated and had facilitated the convict Ashok Kumar Sehgal to commit the various offences, in pursuance of the conspiracy CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 59 of 67 Special Judge, CBI01, Central, Delhi 60 between the two.
10. It has been held by the Hon'ble High Court of Delhi, in case titled as, 'Hari Kishan Bansal Vs. CBI', (Supra), as under:
"47. I have carefully examined the submissions. The appellant had attempted to bribe a public servant who, true to his conscience had refused to succumb to the temptation. Several attempts were made by the appellant to bribe the public servant, all of which were successfully resisted by the latter. Having said that, the submissions made by the learned counsel for the appellant on the harshness of the sentence of 4 years' RI cannot also be ignored totally. The appellant has undergone the travails of a trial for about 19 years. He is now close to 80 years without any regular source of income, as stated by his counsel and has not only his wife to look after but also the wife and children of his deceased son. There is also no record of his having committed any offence during this period of 19 years. Having regard to all these mitigating circumstances I reduce the sentence to six months."
(emphasis supplied by me)
11. It is also held by the Hon'ble High Court of Rajasthan (Jaipur Bench), in case titled as Roop Chand Vs. State (CBI), (Supra), as under:
CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 60 of 67 Special Judge, CBI01, Central, Delhi 61 "(7) The policy of the 'Act of 1947' in giving a very wide discretion in the matter of punishment to the Judge has its origin in the impossibility of laying down standards. The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the judges with a very wide discretion in the matter of fixing the degree of punishment. The discretion in the matter of sentence is liable to be corrected by superior courts. Laying down of standards to the limited extent possible would not serve the purpose.
The exercise of Judicial discretion on well recognized principles is, in the final analysis, the safest possible safeguards for the accused. As was held by Hon'ble Apex Court in Jagmohan Singh vs. State of U.P., 1973 1 SCC 20. (8) The circumstances which could be considered in alleviation of punishment can be the minority of the offender, old age of the offender; the condition of the offender, i.e. wife, apprentice; and the state of health and the sex of the delinquent.
(9) In his book "Ethics of Punishment" Sir waiter Moberly has observed that the principle of punishment is to prevent like offences and to take away the will to repeat the evil. There is not much of chance of the offences being repeated again.
(12) Here the minimum punishment provided is one year's imprisonment with fine and the maximum punishment is for a term of seven years with fine. The section itself does not mention about the category of imprisonment whether simple or rigorous. However on the analogy of the Indian Penal Code, we may take it as rigorous imprisonment. As regards the CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 61 of 67 Special Judge, CBI01, Central, Delhi 62 quantum of fine, necessary guidance has been provided in subsection (3b). In this way the discretion of the Court has been narrowed a bit in awarding punishment. However, in genuine cases where in the opinion of the Court, the accused deserves a lenient sentence than the minimum prescribed, the court may award a sentence of imprisonment of less than one year but reasons and the extenuating circumstances will have to be given in writing by the court. (Sajjan Singh vs. State of Punjab, 1964 AIR (SC) 464)."
(emphasis supplied by me)
12. Keeping in view, the entire circumstances and facts of the case in hand and also keeping in view the fact that the convict N. Bhattacharjee is aged about 75 years and is suffering from various age related diseases and is facing trial for the last about 22 years and is not a habitual offender and is having no previous criminal record and has not committed any other offence during this entire period of 22 years, a lenient view is taken against him. Accordingly, convict N. Bhattacharjee is sentenced to undergo Rigorous Imprisonment for a term of one year & to pay a fine of Rs.5,000/ for the offence punishable u/s.120B IPC r/w Sec. 420 IPC and sec. 13(2) r/w 13(1)(d) of the Prevention of Corruption CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 62 of 67 Special Judge, CBI01, Central, Delhi 63 Act, 1988. In default of payment of fine, he shall further undergo a term of Rigorous Imprisonment for a period of one month. He is further sentenced to undergo a term of Rigorous Imprisonment for a period of one year and to pay a fine of Rs.5,000/ for the offence u/s. 13(1) (d) punishable u/s. 13(2) of the Prevention of Corruption Act, 1988. In default of payment of fine, he shall further undergo a term of Rigorous Imprisonment for a period of one month. He is further sentenced to undergo a term of Rigorous Imprisonment for a period of one year & to pay a fine of Rs.5,000/ for the offence U/s 420 IPC. In default of payment of fine, he shall further undergo a term of Rigorous Imprisonment for a period of one month.
13. From the record, it is also clear that the convict Ashok Kumar Sehgal is the kingpin and he is the master mind of the entire conspiracy, in pursuance of which, various offences were committed. Therefore, keeping in view the severity of the offences proved against him, I am not inclined to take the lenient CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 63 of 67 Special Judge, CBI01, Central, Delhi 64 view against him.
14. It has been held by the Hon'ble Supreme Court of India, in case titled as "State through S.P., New Delhi Vs. Rattan Lal Arora (Supra), as under : "That apart Section 7 as well as Section 13 of the Act provide for a minimum sentence of six months and one year respectively in addition to the maximum sentences as well as imposition of fine. Section 28 further stipulates that the provisions of the Act shall be in addition to and not in derogation of any other law for the time being in force. In the case of Superintendent Central Excise, Bangalore vs. Bahubali, (AIR 1979 SC 1271), while dealing with Rule 126P (2) (ii) of the Defence of India Rules which prescribed a minimum sentence and Section 43 of the Defence of India Act, 1962 almost similar to the purport enshrined in Section 28 of the Act in the context of a claim for granting relief under the Probation Act, this Court observed that in cases where a specific enactment, enacted after the Probation Act prescribes a minimum sentence of imprisonment, the provisions of Probation Act cannot be invoked if the special Act contains any provision to enforce the same without reference to any other Act containing a provision, in derogation of the special enactment, there is no scope for extending the benefit of the Probation Act to the accused. Unlike, the provisions contained in Section 5 (2) proviso of the Old Act providing for imposition CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 64 of 67 Special Judge, CBI01, Central, Delhi 65 of a sentence lesser than the minimum sentence of one year therein for any "special reasons" to be recorded in writing, the Act did not carry any such power to enable the Court concerned to show any leniency below the minimum sentence stipulated. Consequently, the learned Single Judge in the High Court committed a grave error of law in extending the benefit of probation even under the Code. At the same time we may observe that though the reasons assigned by the High Court to extend the benefits of probation may not be relevant, proper or special reasons for going below the minimum sentence prescribed which in any event is wholly impermissible, as held supra, we take them into account to continue the sentence of imprisonment to the minimum of six months under Section 7 and minimum of one year under Section 13 (2) of the Act, both the sentences to run concurrently. So far as the levy of fine in addition made by the learned Trial Judge with a default clause on two separate courts are concerned, they shall remain unaffected and are hereby confirmed.
(emphasis supplied by me)
15. Therefore, convict Ashok Kumar Sehgal is sentenced to undergo Rigorous Imprisonment for a period of one year & to pay a fine of Rs.5,000/, for the offence punishable u/s.120B IPC r/w Section 420 IPC & Sec. 13(2) r/w 13(1)(d) of the Prevention of Corruption Act. In default of payment of fine, he shall further CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 65 of 67 Special Judge, CBI01, Central, Delhi 66 undergo a term of R.I. for a period of one month.
16. Convict Ashok Kumar Sehgal is further sentenced to undergo Rigorous Imprisonment for a period of four years & to pay a fine of Rs.10,000/ for the offence U/s 420 IPC. In default of payment of fine, he shall further undergo a term of Rigorous Imprisonment for a period of one month.
17. Convict Ashok Kumar Sehgal is further sentenced to undergo Rigorous Imprisonment for a period of four years & to pay a fine of Rs.10,000/ for the offence U/s 13(1) (d) punishable u/s. 13(2) of the Prevention of Corruption Act, 1988. In default of payment of fine, he shall further undergo a term of Rigorous Imprisonment for a period of one month.
18. All the sentences of the convicts shall run concurrently.
Convicts shall also be given the benefit of Section 428 Cr.P.C. for the period already undergone by them, during the trial, (if any). CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 66 of 67 Special Judge, CBI01, Central, Delhi 67 It is ordered accordingly.
Announced in open Court
on 25 day of August, 2014 BRIJESH KUMAR GARG
th
Special Judge:CBI01
Central District. Delhi
CBI Vs. Ashok Kr. Sehgal etc., CC No. 251/07 pg 67 of 67 Special Judge, CBI01, Central, Delhi