Delhi District Court
Apex Court In Rumi Dhar vs . State Of West Bengal & Ors. [2009 Air on 17 August, 2015
IN THE COURT OF SH. SANJAY GARG-I :
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC No. 33/2008
ID No. 02401R0214552001
Central Bureau of Investigation (CBI)
Versus
1)V. K. Choudhary
s/o Lt. Dr. Laxmi Chand,
R/o 224, Ambika |Vihar,
Delhi 41.
2)Mahesh Chand Sharma
s/o Sri Ramgopal Sharma
R/o SN 26, Shastri Nagar,
Ghaziabad, (UP).
3)D. K. Jain, Partner,
M/s Adreena Agencies.
(Abated). .... accused
Case arising out of: FIR No. RC-51(A)/93-DLI
Date of FIR : 17.08.1993
Date of Institution : 17.12.1994
Date of conclusion of
Final Arguments : 16.07.2015
Date of Judgment : 30.07.2015
CC No. 33/2008 Page 1 of 59
JUDGMENT
FACTS 1.0. This case as well as CC no. 32/2008 (earlier no. 113/2001) arising out of the same FIR were ordered to be consolidated vide order of this court dated 05.02.2004. It was further ordered that CC no. 32/2008 shall be treated as main case and the evidence shall be recorded in this case. Accordingly, common evidence has been recorded in both these cases. However, for sake of clarity and avoiding any confusion, separate judgment is pronounced in both these cases.
1.1. This case was registered on the basis of complaint dated 13.08.1993 of Sh. Arun Ray, (PW-9), Zonal Manager, UCO bank, 5 Sansad Marg, New Delhi alleging that Sh. V. K. Choudhary, accused no. 1 (A-1) while working as Senior Manager at UCO bank, Sadar Bazar branch during the year 1988-89, in collusion with M/s Adreena Agencies 4939-47, Kumar House, Sadar Bazar, Delhi, cheated the bank to the tune of Rs.18,093/-. A-1 passed the following cheques issued by M/s Adreena Agencies for payment without debiting its account and by making payments against the said cheques:-
Sl. Cheque Date Amount In favour of M/s
N0. No.
1. 099911 14.05.88 8,000.00 Alok Gupta
2. 099912 -do- 8,000.00 Sharad Kumar
3. 094384 -do- 2093.00 LIC
CC No. 33/2008 Page 2 of 59
Total 18,093/-
1.2 The accused D. K. Jain (A-3) was partner and controlling
authority of M/s Adreena Agencies.
1.3 The investigation revealed that the current account of A-3
was running in debit balance and A-1 was duty bound to return the above mentioned cheques. No limit of any kind was sanctioned in current account of A-3 and A-1 was not competent to grant clean over draft in the current account of A-3. A-1 dishonestly and fraudulently detained the above mentioned cheques in his personal capacity. Against the said cheques, amount in day book/cash book was adjusted by accused Mahesh Chand (A-2) by making false entry of credit in the column of clearing and the current account of A-3 was also not debited against the above mentioned cheques. The investigation also disclosed that A-3 was sanctioned cash credit limit of 10.5 lacs on 30.10.1984 for one year which lapsed on 29.10.1985, as A-3 did not put proposal for renewal of cash credit limit. On 5th & 9th May, 1988, the current account of A-3 was overdrawing over and above the sanctioned limit. LIC of India, Sh. Alok Kumar Gupta and Sharda Kumar, drawees of these cheques realised payments against the above mentioned cheques due to illegal detention of these cheques by A-1.
1.4 All these three chqeus were recovered from the table/drawer of A-1 in presence of Sh. B. P. Handa, Manager and Sh. Sri Ram Gola, both officers of the bank of Sadar Bazar branch, Delhi by Sh. Vijender Kumar on 01.11.1991, when he was taking over the charge of UCO bank branch, CC No. 33/2008 Page 3 of 59 Sadar Bazar, Delhi as senior manager.
1.5 Investigation disclosed that A-3 was given statement of account of his concerns regularly but he dishonestly did not make any effort to get the cheques debited in current account of his concern. Accordingly he caused undue pecuniary advantage to the tune of Rs. 18,093.50/- to M/s Adreena Agencies of which he is partner.
1.6 Sanction for prosecution of A-1 and A-2 was obtained from competent authority.
1.7 After investigation charge sheet was filed for commission of offence under Section 420, 477-A, 467, 471 IPC and under Section 13(2) read with 13(1)(d) of Prevention of Corruption of Act, 1988.
1.8 During pendency of trial D. K. Jain accused no.3 died and proceedings stand abated against him.
CHARGE 2.0 All the three accused persons were charged together for offence punishable under Section 120-B read with Section 420 IPC and Section 13(2) read with Section 13(1)(d) P. C. Act to which they pleaded not guilty and claimed trial.
2.1 Accused V. K. Choudhary (A-1) was charged separately for commission of offence under Section 420 IPC and Section 13(2) read with CC No. 33/2008 Page 4 of 59 Section 13(1)(d) P. C. Act to which he pleaded not guilty and claimed trial.
2.2. Accused Mahesh Chand (A-2) was charged separately for commission of offence under Section 420 IPC and Section 13(2) read with Section 13(1)(d) P. C. Act to which he pleaded not guilty and claimed trial.
2.3. Accused D. K. Jain (A-3) being partner of M/s Adreena Agencies was separately charged for offence under Section 420 IPC to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE.
3.0. To prove its case, prosecution has examined 12 witnesses.
3.1. PW-1 Ved Prakash Tyagi was posted as Chief Cashier in the year 1988-89 in UCO Bank, Sadar Bazar branch and used to handle cash and clearing. He had received three cheques issued by M/s Adreena Agencies which are Ex. PW 1/A to PW 1/C through schedule of RBI Ex. PW 1/D vide RBI schedule Ex. PW 1/H to K. As per him these cheques used to be sent to the Ledger Keeper for posting in the respective accounts.
3.2. PW-2 B.K. Bhalla, Specia Assistant, UCO Bank was posted at Sadar Bazar branch in the year 1989. He identified cheques of Adreena Knitwears Pvt. Ltd. as Ex PW 1/E, PW 2/A and Ex. PW 2/B. [Ex. PW 2/A and Ex. PW 2/B were earlier exhibited by PW-1 as Ex. PW 1/F and Ex.
CC No. 33/2008 Page 5 of 59PW 1/G]. (of other case). His duty was only to verify the signatures of the party on the cheques received by him through Chief Cashier, after verification, cheques were passed towards Ledger Keeper for debiting the account. In the ledger of M/s Addreena Knitwears, these three cheques are not reflected. As per procedure entries should also be made in the refer book. But these three cheques are also not mentioned in the refer book Ex. PW 2/C and PW 2/D. The ledger in which account of M/s Adreena Knitwears is reflected is Ex. PW 2/E. As per him, supplementary book Ex. PW 2/F is not containing any entry of Rs. 1,86,700/- pertaining to cheque Ex. PW 2/B. 3.3. PW-3 Vijender Kumar was posted in the same branch as senior Manager on 01.11.1991, after placing A-1 under suspension. He deposed that he took over charge by calling accountant Sh. P. N. Handa (PW-6) and Mr. Ramesh Gola (PW-5), joint Manager and then checked the drawer and almirah of chamber of A-1. He prepared report Ex. PW 3/A and same was sent to Zonal office. Cheque Ex. PW 1/E, Ex. PW 2/A, Ex. PW 1/A to C were recovered from the drawer and cabinet of A-1. The cheque Ex. PW 2/B is also mentioned in the report Ex. PW 3/B. It was recovered from the cabinet of A-1. On checking ledger, the amount of these six cheques were not found debited in the account of the concerned parties. The account of concerned parties were found to be overdrawn.
3.4. PW-4 Devender Kumar Tyagi remained posted in the same branch of UCO Bank as Clerk-cum-cashier w.e.f. Oct. 1982 to May, 2001. In the year 1988, he was working on the seat of Cash Credit and advances and his duty was posting of all vouchers and balancing of CC CC No. 33/2008 Page 6 of 59 ledgers on day to day basis. He deposed that S.K. Kapoor and A-1 were the In-charge of the cash credit but most of the time A-1 used to look after ledgers. RBI schedule Ex. PW 1/D was received by A-1 and it bears the initial of A-1 at point "A". Had the cheque Ex. PW PW 1/A to PW 1/C be given to him for posting, he would have made the entry of the same in the ledger.
3.5. PW-5 Ramesh Gola was working as branch manager in the same branch in the year 1991. He deposed that A-1 was senior manager at that time. In Oct. 1991, Sh. Vjiender Kumar (PW-3) was posted as senior manager in place of A-1 and he (PW-3) took over charge when A-1 was on leave. The cash keys were with Mr P. N. Handa (PW-6), second man in command and keys of the drawers were obtained from the house of A-1 from his mother. Some cheques were recovered from the drawer and on checking it was revealed that those cheques were not debited in the concerned party account. Suspecting fraud, they prepared an inventory of all the cheques and instruments recovered from the drawer of A-1 and reported the matter to the higher authorities, i.e. Zonal office. He identified his signatures on report Ex. PW 3/A. Cheque Ex. PW 1/A to PW 1/C of this case and Ex. PW 1/E, PW 2/A and PW 2/B (of other account) were recovered from the drawer of A-1 and those cheques were not debited in the ledger of the concerned parties. He proved account opening form of M/s Adreena Knitwears (of other case) bearing signatures of A-1 and A-3 as Ex. PW 5/A. 3.6. PW-6 P. N. Handa was posted as manager in the same branch from 1989 to 1995. As per him, at the time of joining of Vijender Kumar, CC No. 33/2008 Page 7 of 59 keys of the drawer of the table of A-1 were not available in the bank and the same were fetched from his residence. The drawer of the table of A-1 were opened in the presence of staff members and from the drawers letters, some papers and cheques were recovered. He identified his signature on inventory Ex. PW 3/A and on the carbon copy of inventory Ex. PW 6/A. 3.7. PW-7 Jagmohan Sharma was working as Marketing Officer in M/s Adreena Woolen Industries Pvt. Ltd. As per him, D.K. Jain (A-3) was director of this company. He identified signatures of A-3 on chques Ex. PW 1/A to PW 1/C, Ex. PW 1/E, Ex. PW 2/A & B. 3.8. PW-8 Kamal Kishore Jindal had worked as Deputy Chief Officer (Credit) in UCO Bank Zonal Office, Parliament Street, New Delhi from 1990 to Sept. 1996. As per him, cash credit accounts, working capital limits is continuing business operation. Initially limits are valid for one year but they are continued on regular basis. The credit facilities are continued without any request from the customer, unless there are adverse remarks from the bank or bank has some doubts. Bank also sanction term loan for purchase of machinery and equipments which are sanctioned for fixed tenure and instalments are paid by the borrower along with interest during this tenure. This credit facility is payable on demand and reviewed/renewed after one year.
3.9. PW-8 was declared hostile and cross-examined by CBI. During his cross-examination, he admitted that party availing the limit submits proposal for renewal of the same before lapse of credit limits. The limit CC No. 33/2008 Page 8 of 59 sanctioned on 30.10.1984 had already lapsed on 30.10.1985. He admitted that when the sanctioned limit lapsed, the manager should not allow transaction in the account or should not honour the cheques of the party without previous sanction of competent authority.
3.10. PW-9 Arun Ray was working as Zonal Manager UCO Bank in the year 1993. He had made a complaint dated 13.08.1993 to CBI for taking legal action against A-1, the then Senior Manager, Sadar Bazar Branch which is Ex. PW 9/A. He had complained against A-1 for committing irregularities of fraudulent nature to cause undue pecuniary advantage to M/s Adreena Knitwear Pvt. Ltd. and M/s Adreena Agencies.
3.11. PW-10 Krishan Kumar was working as General Manager (Personnel). He was on deputation with UCO Bank from February 1992 to the end of 1994 or beginning of 1995. He had accorded sanction Ex. PW 10/A for prosecution of A-1 and A-2 after application of mind, perusing FIR, statement of witnesses and other relevant material.
3.12. PW-11 Sh. R.K. Saini was I.O. in this case, as in the year 1993, he was posted as Inspector CBI. The copy of FIR is Ex. PW 1/A signed by Sh. A. W. Digwekar, SP CBI, ACB. During investigation, he conducted searches and recovered incriminating documents. He seized the record from the bank and other concerned places. He proved various search- cum-seizure memos as Ex. PW 11/2 to PW 11/5 and seizure memos Ex. PW 11/6 to PW 11/15 vide which various places were searched by him and documents were seized.
CC No. 33/2008 Page 9 of 593.13. PW-12 Ct. Narender Kumar, Malkhana, CBI produced malkhana register bearing no. MR-II for the year 1993. As per him various documents seized vide seizure memo dated 02.01.1993 were deposited by the I.O. on 03.11.1993. Documents mentioned at serial no. 9 & 10 of the seizure memo were returned to UCO Bank on 19.03.1996.
Statement of accused & defence evidence 4.1. On the basis of incriminating evidence against accused, their statements were recorded under Section 313 Cr.P.C.
4.2. A-1 denied entire evidence against him made and took the defence of false implication stating that he was on leave from 05.10.1991 to 31.10.1991. PW-6 had duplicate keys of all his office drawers, cupboards, cabinet etc. He did not receive any requisition from bank during leave period to reach branch at the time of alleged recovery/seizure. The credit facility to M/s Adreena Agencies had been granted way bank in 1985. The account was already in operation when he joined the branch, the Zonal Office was very much aware about these facts. It was not part of his duty or responsibility to receive the cheques or make any entry in any book maintained in the branch in this regard. Overdraft facility of M/s Adreena Knitwear Pvt Ltd. had been granted against fixed deposits and shares/securities. From Jan. 1990 to May, 1990, he was asked to clear the backlogs and some other Senior Manager Sh. R. K. Bhagwani was posted in the branch in his place. Balance of the books of the branch was in arrears since 1987. The matter had been duly reported in inspection reports of the branch on annual CC No. 33/2008 Page 10 of 59 basis. The persons who were in fact responsible for maintaining the record have not been made accused and he has been falsely implicated. Some of the actual culprits responsible for irregularities have been made witness in this case. He opted to lead defence evidence.
4.3. A-2 also denied the entire evidence against him and took the defence that he was day book writer in UCO Bank, Sadar Bazar during the relevant period. He stated that day book is written on the next day of the banking transaction of the earlier day for arithmetical correction of daily transaction of the branch and on that basis general ledger of the branch is prepared. He stated that ledger incharge and other Incharge co-relates their entries from the general ledger on daily basis. He stated that while writing the day book, he found a difference of Rs. 18,093.50ps and informed his incharge. They checked the RBI schedule and found three cheques which were not posted in the supplementary book. The said three cheques were somehow located by his incharge, who directed him to write those cheques in the day book and also directed CC ledger writer to debit the cheques. He stated that after he wrote the day book, it was duly verified by his incharge and once his incharge had verified it, his role was over.
4.4. In defence evidence accused persons examined four witnesses. A-2 Mahesh Chand Sharma, examined himself as DW-1, after moving an application under Section 315 Cr.P.C. He deposed about the defence taken by him. During recording of his statement under Section 315 Cr.P.C., he filed UCO Bank Manual of Instructions Volume-V (Sundries Accounts), December, 2006 as Ex. DW 1/A. CC No. 33/2008 Page 11 of 59 4.5. DW-2 Joginder Pal Bhagat, Chief Manager, (HR & Vigilance), UCO Bank Zonal Office, Parliament Street, produced file pertaining to review of suspension A-2 Mahesh Chand Sharma in (CC no. 33/2008) and A-2 Ramphal (in CC No. 32/2008). He proved Ex. DW 2/A of Deputy General Manager (Personal) to this effect.
4.6. DW-3 K.K. Girdhar, Sr. Manager, UCO Bank, Zonal Office to prove certificate Ex. DW 3/A issued by Sh. V. K. Srivastava, Dy. Genera Manager, UCO Bank, Zonal Office.
4.7. DW-4 Sh. V.K. Upadhyay, Retired General Manager (HQ), UCO Bank. He identified his signatures on letter mark PD-3A.
Arguments 5.0. Heard arguments of Sh. Anil Tanwarl, Ld. PP for CBI, Sh. Mukesh Kalia, Ld. Counsel for A-1 and Sh. H. S. Chaudhary, Ld. Counsel for A-2. Ld. APP as well as both the Ld. defence counsels have also filed written submissions. Perused the record and considered the various judgments relied upon by both the parties.
5.1. Ld. PP for CBI has submitted that from the evidence which has come on record, it stands established beyond doubt that all the three cheques of M/s Adreena Agencies were withheld by accused persons in pursuance to criminal conspiracy to cause wrongful gain to D. K. Jain CC No. 33/2008 Page 12 of 59 and corresponding loss to the bank. It has been stated that these cheques were withheld by A-1 with the knowledge that cash credit account of M/s Adreena Agencies was overdrawn and credit facility in this account have been lapsed and no proposal for renewal was pending. It is urged that from the statement of PW-2, PW-3 and PW-5 the procedure and practice followed by bank for presentation and clearance of cheques in banking transaction stands proved. It has been submitted that PW-4 has specifically stated that A-1 was in-charge of cash credit and he had received RBI schedule in the bank for clearance of cheques. It is stated that Rule 20 of Advance Manual Volume-VI of UCO Bank describes the procedure for renewal of limit.
5.2. It has been submitted that A-2 Mahesh Chand Sharma has admitted to have written the day book, the explanation given by him in his statement under Section 313 Cr.P.C. and while deposing as DW-1 is untenable and same is concocted story to establish his defence. It is stated that as per PW-6, it was not only the duty of day book writer to write day book on the basis of supplementary book but he is also to see/tally the day book with clearing vouchers. It has been submitted that accused persons have explained during arguments that amount with regard to these cheques have been debited from the accounts of M/s Adreena Agencies on 03.01.1992 and 14.03.1992, therefore, no case is made out against the accused persons, but as per observations made by Apex Court in Rumi Dhar Vs. State of West Bengal & ors. [2009 AIR (SC) 2195], that mere adjusting and depositing of cheated amount subsequent to the commission of offence, would not be sufficient to exonerate the accused persons from the offence of cheating.
CC No. 33/2008 Page 13 of 595.3. Sh. Mukesh Kalia, Ld. Counsel on behalf of A-1 has submitted that though as per record M/s Adreena Agencies was granted cash credit facility for one year which expired in the month of October, 1985 but even thereafter within the knowledge of Zonal Office, this firm continued to enjoy the Over draft facility after October, 1995. A-1 joined in 1988, even at that time, over draft facility was being permitted by all his predecessor senior managers and account of A-3 was having debit balance.
5.4. It has been submitted that FIR was lodged after two years after recovery of six cheques from the drawer/cabinet of A-1. It is urged that accused was falsely implicated with ulterior motive by vested interest. It is stated that accused was not even informed when alleged search of his room was taken, even no independent witness was associated during this alleged search. It is stated that as per banking norms and procedure, the person 2nd in command in the branch is having duplicate set of keys with him and accordingly, planting of these cheques on the accused cannot be ruled out. It has been submitted that accused was working as senior manager and as per guidelines issued by Head Office, his prime role was to develop business and over see its operation, while person 2nd in command was primarily responsible for efficient conduct of the routine work of the branch by allocating work to the various functionaries at the branch.
5.5. It is stated that as per procedure for clearance of cheques, these accused had no occasion to detain any cheque at any stage. It has been CC No. 33/2008 Page 14 of 59 urged that prosecution has failed to prove on record from which event it can even remotely infer if any wrongful gain accrued to the accused under these transactions. It is stated that all the money so released has been received by the bank with due interest as the parties have deposited the entire amount with the bank. It has been submitted that because of the shortage of staff entries in the books, in the supplementary book and the cash book were not made on daily basis and everything was in arrears of 2-3 months and balancing of book was in arrears for the last 2-3 years. Accused was taking steps to update the records and if the records would have been updated, this omission would have come to the notice of the bank.
5.6. Sh. H. S. Chaudhary, Ld. counsel for A-2 has outrightly contended that the alleged date of incident is 14.05.1988 and there was no provision under Section 13(1)(d) of Prevention of Corruption Act at that time. It has been urged that for the first time the provision under Section 13(1)(d) was introduced in Prevention of Corruption Act, 1988 w.e.f. 9.9.1988. It has been submitted that charge under Section 13(1)(d) was wrongly given to the accused persons and same has caused grave prejudice to them and on this very ground the charge sheet and the entire prosecution case should be discarded. It has been urged that even sanction order is talking about Section 13(1)(d) and the same is also vitiated.
5.7. Sh. H. S. Chaudhary, Ld. Counsel for A-2 has further contended that the fact that the bank has recovered full amount as the cheques were already debited in the party's account, was concealed by CC No. 33/2008 Page 15 of 59 the complainant, otherwise, no FIR would have been registered. It is stated that parties have paid interest at the rate of 30% for late debiting of the cheques and all loss incurred by bank have been recovered. It has been stated that there is a system of cross checking at every stage in the working of the bank. If any instrument is not posted by the concerned clerk in the parties account, it cannot go unnoticed as the incharge of the concerned clerk is duty bound to check and tally their ledgers with instruments as per bank manual. It has been stated that all the six cheques were received by PW-1 being chief cashier. After preparing the list, he forwarded the cheques to Assistant Manager/Ledger Incharge. After obtaining their signature, cheques pertaining to M/s Adreena Agencies were given to Assistant Manager S. K. Kapoor, while other cheques were received by Special Assistant Sh D. K. Bhalla (PW-2) and Sh. S. K. Kapoor, who as per rules were required to forward the cheques to ledger clerk. But none of the retainers of the cheques were neither examined as witness nor made accused by CBI. It is stated that statement of PW-2 supports his contention. Regarding entries being made in day book, Ld. Counsel has vehemently urged that day book is written next day from the previous day of banking transactions that took place in the bank but the date is shown as the same working day. In routine several mistake/difference come to knowledge at the time of tallying the day book and after that the Incharge/Manager corrects the mistakes. It is stated that perusal of day book will reveal that there are cuttings in almost the pages and differences are noted down with pencil. It is stated that PW-2, PW-3 and PW-6 supports this contention raised here. It has been contended that day book is always verified by the manager or either designated officer and day book writer is not CC No. 33/2008 Page 16 of 59 responsible personally for any irregularity in the day book because it is always verified by the manager. It has been contended that day book writer cannot be held responsible for not posting of cheque in ledger book as day book writer has no role to play in receiving, detaining and returning of cheque or with the account of the concerned party.
5.8. Sh. Chaudhary has further contended that the letter Ex. PW 3/DA dated 13.06.1988 of Divisional Manager Sh. S. V. Prabhu is stating that M/s Adreena Agencies was the high valued customer of the bank. Further as per letter dated 06.01.1988, the CC limit of M/s Adreena Agencies was enhanced from 5 to 15.16 lacs. It has been submitted that CC limit once given does not lapse automatically after one year of its sanction. Renewal CC limit is bank's internal measure. It is stated that PW-8 Kamal Kishore Jindal who was senior officer of the bank has admitted that CC account are working capital limits, valid for one year but they are continued on regular basis as these limits are day to day affairs of the borrower. It has been submitted that PW-5 has admitted that M/s Adreena Agencies was given facility from the bank. It has been submitted that accused is innocent and was falsely implicated as at no point of time he shared any conspiracy with any one to cheat the bank. It is stated that prosecution has failed to establish it that the accused has any fraudulent or dishonest intention at any point of time.
5.9. A-2 has relied upon the following judgments:-
(I) Gurbux Singh Bains Vs. State of Punjab judgment of P& H High Court in CRM No. M-6656 of 2011 dated 21.02.2013;
(ii) Major Gurjinder Singh Benipal Vs. State of Punjab CC No. 33/2008 Page 17 of 59 & ors 2012(4) RCR (Crl.) 743;
(iii) Babubhai Vs. State of Gujarat & ors (2010) 12 SCC 254;
(iv) Romesh Lal Jain Vs. Naginder Singh Rana & ors (2006) 1 SCC 294;
(v) Mir Nagvi Askari Vs. CBI JT (2009(11) SC 191;
(vi) Esher Singh Vs State of A.P. (Crl. Appea No. 1363 of 2003) judgment of Hon'able Apex Court dated 15.03.2004;
(vii) Abdul Rasid Vs. State of Haryana 2014 Crl L. J. 1588;
(viii) Anil Kumar Bose Vs. State of Bihar (1974) 4 SCC 616;
(ix) R. Kalyani Vs. Janak C Mehta & ors 2008(12) SC 280;
(x) Vir Prakash Sharma Vs. Anil Kumar Aggarwal [(2007) 7 SCC 373)];
(xi) S. V. L. Murthy Vs. State [(2009) 6 SC 48)];
(xii) C. K. Jaffer Sharief Vs State (AIR 2013 SC 48];
(xiii) A. Subair Vs State of Kerala (2009 (6) SCC 587);
(xiv) C. K. Damodarn Nair Vs Government of India.
judgment dated 08.01.1997 of Honle Apex Court;
(xv) Subhash Parbat Sonvane Vs. State of Gujarat (2002) 5 SCC 86;
(xvi) B. Jayaraj Vs. State of A. P. dated 28.03.1994 (Crl. Appeal No. 546 of 2002), judgment of Hon'ble Apex Court dated 24.04.2002.
CC No. 33/2008 Page 18 of 59(xvii) M. C. Gupta Vs. CBI (2012) 8 SCC 669;
(xviii) Jagan M. Seshadri Vs. State of Tamil Nadu (AIR 2002 SC 2399); & (xviii) K. Sankaranarayanan Vs. Special Police Establishment CBI, Madras in Crl. Appeal No. 699 of 1997, judgment dated 3.12.2008 of Mudurai Bench of Madrash High Court.
6.0. The Ld. PP for CBI in rebuttal has fairly conceded that at the time of commission of this offence, Prevention of Corruption Act, 1988 was not in operation and Section 13(1)(d) Prevention of Corruption Act was added after amendment w.e.f. 9.9.1988. Ld. PP has further contended that there is absolutely no change in the ingredients of criminal misconduct with which accused persons have been charged and Section 5 (1)(d) has only been re-framed as Section 13(1)(d). It has been contended that it is a mere irregularity and has not caused any prejudice to the accused in any manner.
Effect of giving charge under Prevention of Corruption Act, 1988 instead of Old Prevention of Corruption Act, 1947.
7.0 From the facts of the case, it is very much clear that on the date of incident, the Prevention of Corruption Act, 1947 was in operation and accused persons were required to be charged under Section 5 (1)(d) and not under Section 13(1)(d) of Prevention of Corruption Act, 1988. Perusal of Section 5(1)(d) of Prevention of Corruption Act, 1947 and Section 13(1)
(d) sub-clause (i) & (ii) reveals that the same provision of old Act has been bifurcated into two sub-clauses, i.e. Section 13(1)(d) clauses (i) &
(ii). After amendment clause (iii) to Section 13(1)(d) is new addition. It is CC No. 33/2008 Page 19 of 59 an error on the part of this court in framing the charge under Section 13(1)
(d). The effect of such errors on the trial has been discussed under Section 215 and 464 Cr.P.C. These two sections read as under:-
Section 215 :Effect of errors.- No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact mislead by such error or omission, and it has occasion a failure of justice.
Section 464. : Effect of omission to frame, or absence of, or error in, charge.- (1) No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) if the court...."
7.1 Reading both these provisions clarify that an error in framing of charge must be material and it should have occasioned a failure of justice for it to vitiate the trial. Almost similar issue was dealt by the Hon'ble Delhi High Court in case title Runu Ghosh Vs. CBI (Crl. A. 482/2002, 509/2002, 536/2002), decided on 21.12.2011. In relevant para 64 court observed as follows:-
"A close reading of the two provisions clarifies that an error in framing of charge must be material and it should have occasioned a failure of justice for it to vitiate trial. An irregularity is not regarded as fatal unless it results in substantial prejudice to the accused. This was stated in Willie (william) Slaney V. The State of Madhya Pradesh AIR 1956 SC 116 by the Supreme Court, which stated that:CC No. 33/2008 Page 20 of 59
" If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of the law, mere mistakes in procedure mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice.
xxxx xxxx xxxx But when all is said and done, what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one."
It is immaterial whether the charge was framed properly or not; what matters is whether the error, omission or irregularity occasioned substantial prejudice. This view was also aired in the State of West Bengal and Anr. v. Laisal Haque and Ors. AIR 1989 SC 129 while quoting the Willie (William) Slaney case (supra), the Supreme Court said that:
"In the celebrated case of Willie (William) Slaney v. State of Madhya Pradesh, 1956CriLJ 291, Vivian Bose, J. Speaking for the Court after an elaborate discussion observed that in judging a question of prejudice, as of guilt, the Courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether CC No. 33/2008 Page 21 of 59 he was given a full and fair chance to defend himself. That test is clearly fulfilled in the facts and circumstances of the present case. The principles laid down by that very eminent Judge in Slaney's case have throughout been followed by this Court. See: K. C. Mathew and Ors. v. State of Travancore Cochin 1956 Crl.LJ 444, Gurbachan Singh v.State of Punjab 1957 CriLJ 1009, Eirichh Bhutan and Ors. v. State of Bihar [1963] Supp. 2 SCR 328 and State of Maharashtra v. Ramdas Shrinivas Nayak and Anr. 1982 CriLJ 1581."
7.2 As discussed above, the provision under Section 5(1)(d) of Old Act has been re-framed in the new Act as Section 13(1)(d) sub clause (I) &(ii). The punishment under the Prevention of Corruption Act, 1947 for this offence is imprisonment for a term which may extend to 7 years or with fine or with both. However, more stringent punishment has been provided in the new Act by providing that the same offence is punishable with imprisonment for a term which shall not be less than 1 year, which may extend to 7 years and shall also be liable to fine. Certainly if found guilty, punishment provided under Prevention of Corruption Act, 1947 will be applicable in this case. In view of the aforesaid reasons, this is not a fatal irregularity and has not caused any prejudice to the accused persons as the accused has understood the case against them. I thereby find no substance in this contention raised by Ld. counsel for A-2 that framing of charge under the new Act, i.e. Prevention of Corruption Act, 1988, has caused any prejudice or failure of justice to the accused persons.
7.3. In K. Sankaranarayanan (Supra) the court has observed that the grant of sanction is not idle formality or acrimonious exercise but an solemn and sacrosanct act which affords protection to government servant against frivolous prosecutions and must therefore be strictly CC No. 33/2008 Page 22 of 59 complied with before any prosecution can be launched against the public servant concerned. The sanction order Ex. PW 10/A has discussed the allegations against accused persons in detail. Applying the same analogy as discussed in above para, the mere mentioning of Section 13(2) read with Section1 3(1)(d) of Prevention of Corruption Act, 1988 in the sanction order does not vitiate this order.
7.4. Ld. counsel for A-2 has further relied upon observations made by Hon'ble Apex Court in Jagan M. Seshadri (supra) to support his submissions. In this case relying on Section 13 of Prevention of Corruption Act, 1988, the High Court opined that appellant (accused) shall be deemed to have been charged for offence under Section 13(1)(e) read with Section 13(2) of 1988 Act and framing of charge by the trial court under Section 5(1)(e) read with Section 5(2) of 1947 Act was vitiated. The court observed that High Court on the basis of 'Explanation' added in Section 13(1)(e) of 1988 Act, has convicted the accused but this 'Explanation' was not there in the old Act of 1947. The ratio of this judgment is not applicable to the facts of the present case.
APPRECIATION OF EVIDENCE 8.0. It is also well settled that criminal conspiracy is often hatched in secrecy and for proving the offence, substantial direct evidence may not be available. An offence of criminal conspiracy can also be proved by circumstantial evidence. However, it cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence. Where the prosecution case rests merely CC No. 33/2008 Page 23 of 59 on circumstantial evidence, the fact established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. However, on the basis of evidence led by prosecution, if two views are possible, one pointing to the guilt of the accused and other to his innocence, the one in favour of the accused must be accepted. In this regard, reference can be made to Saju Vs. State of Kerala, (2001) 1 SCC 378, Sherimon Vs. State of Kerala, (2001) 10 SCC 768, P. K. Narayanan Vs. State of Kerala, (1995) 1 SCC 142, State of M.P. Vs. Sheetla Sahai, 2009 Cr. L. J. 4436, Shivaji Saheb Rao Bobde Vs. State of Maharashtra, AIR 1973 SC 2622, Harendra Narain Singh Vs. State of Bihar, AIR 1991 SC 1842, Baboo Ram Vs. Stae, 1996 Crl. L. J. 483, and N. Rajendra Prasad Bihar Vs. State, 1996 Crl. L.J. 258.
8.1The essence of conspiracy is unlawful combination and the complicity of the accused has to be decided after considering all the circumstances proved, before during and after occurrence. Agreement between the conspirators may also be proved by necessary implication. It is not necessary that each member of a conspiracy must know all the details of the conspiracy. Facts established should be consistent only with the hypothesis of guilt of the accused. It does not mean that each and every hypothesis suggested by accused must be excluded by proved facts. In this regard, reference can be made to Chaman Lal Vs. State of Punjab, AIR 2009 SC 2972, R. K. Dalmia Vs. The Delhi Administration, AIR 1962 SC 1821, Muriappan Vs. State of Tamil Nadu, AIR 2010 SC 3718 and Firozuddin Basheeruddin Vs. State of Kerala, (2001) 7 SCC 596.
CC No. 33/2008 Page 24 of 59Procedure of clearing the cheque received in inward clearing 8.2 From the statements of PW-1 Ved Prakash Tyagi, Chief Cashier; PW-2 B. K. Bhalla, Special Assistant; PW-3 Vijender Kumar, Sr. Manager; PW-4 Devender Kumar Tyagi, Clerk-cum-cashier; PW-5 Ramesh Gola, Branch Manager; and Rule-3 of Chapter-4 of Cash Manual of United Commercial Bank (D-5), after a cheque is received for inward clearing, it goes to following hands/stages:-
• A cheque with RBI schedule is received by the Chief Cashier in the bank;
• The Chief Cashier tallies the cheque with the schedule and thereafter handover it to Ledger In-charge, after entering the same in a book then signed by Officer In-charge (Ledger);
• The officer In-charge after verifying the signature and dates, if everything is found as per requirement handover the same to Ledger Keeper;
• If there is credit balance in the account, Ledger Keeper would debit the cheque in respective account, in case there is no sufficient balance,he would refer it to the Branch Manager in a book called "Refer Book" for his decision;
• If Manager allows an overdraft, he would put his initial with words "OK" on the top of the cheque and he would put his initial in the "Refer Book". Thereafter, the cheque is posted by Ledger Keeper and an overdraft is created;
• In case Manager does not OK, he would write in the Refer Book words "No" and put his initial. The cheque subsequently is returned to the clearing house through the Ledger Keeper via Deposit In-charge and the CC No. 33/2008 Page 25 of 59 Chief Cashier;
• The cheque which remained unpaid have to be returned to the clearing house same day by 01.30 PM with a return memo duly signed by Officer concerned attached with the cheque. The entry in this regard is made in the cheque return register;
• After vouchers have been recorded in the main book of the record of the bank and dealt with by the department concerned, they are written in the "Day Book" which is one of the control book of the bank; • Day book/cash book is the permanent record of each days transactions. In it all the debit and credit transactions under various heads taking place in a particular day in a branch are recorded. All the vouchers of a day should be recorded in the day book.
• Where transactions under a particular head are usually heavy, a separate supplementary book (also called detailed book) which is kept under different heads with the purpose to detect errors easily and to save the day book from becoming too unwieldy and voluminous; • Total of various columns (cash, clearing and transactions) in the supplementary book should be recorded in day book under that particular head;
• Day book is written on the next date for the previous day banking transactions that took place in the bank but the date is shown of the working day;
• If day book writer is not able to tally the day book with the help of supplementary book, he is to tally with the vouchers also.
What happened with cheques Ex. PW 1/A to PW 1/C CC No. 33/2008 Page 26 of 59 8.3. As per PW-1 Ved Prakash Tyagi, who was working as Chief Cashier in UCO Bank, Sadar Bazar branch in the year 1988-89, three cheques Ex. PW 1/A to PW 1/C issued by M/s Adreena Agencies were received by him. As per him, these cheques used to be sent to the Ledger Keeper for posting in the respective accounts.
8.4. PW-4 Devender Kumar Tyagi in the year 1988 was working on the seat of cash credit and advances. As per him, his duties were posting of vouchers and balancing of cash credit ledgers on day to day basis. As per him, Sh. S. K. Kapoor and accused V.K. Choudhary were In-charge of cash credit. Some times Sh. Kapoor used to look after the ledgers but most of the time accused V. K. Choudhary used to look after the ledgers.
RBI schedule Ex. PW 1/D was received by Sh. V. K. Choudhary, Sr. Manager, UCO Bank, Sadar Bazar Branch which bears his initials at point "A". He deposed that had the cheques Ex. PW 1/A to C were being given for posting, he would have made entries of the same in the ledger.
8.5. During his cross-examination, PW-4 has denied that initials at point B-4 on Ex. PW 1/D is of A-1. He has admitted that cheque Ex. PW 1/A to 1/C do not bear signature or initials of A-1. If balancing of CC account is done on daily basis, then it is not possible that certain vouchers or cheques if not posted will go unnoticed and difference in balance would come, showing that some vouchers or cheques have not been posted.
8.6. The case of the prosecution is that A-1 & A-2, in conspiracy with A-3 made the cheques Ex. PW 1/A to PW 1/C disappear to help A-3, so CC No. 33/2008 Page 27 of 59 that these cheques may get cleared. As per the allegations, the CC limit of A-3 was lying lapsed, its account was already running into debit balance and in routine course these cheques could not have been cleared.
8.7 Ex. PW 11/DA-3 is the day book of M/s Adreena Agencies where the total of these three cheques, i.e. Rs. 18,093/- is shown posted. It is relevant to mention here that as per Ex. PW 11/DA-3 in CC account, amount shown in clearing is Rs. 2,28.533.51/- but after cutting this figure amount is mentioned as Rs. 2,46,627.01/-. The difference of these two figures is exactly the amount of these three cheques Ex. PW 1/A to 1/C, i.e. Rs. 18,093/-.
Recovery of cheques (Ex. PW 1/A to 1/C) 9.0. PW-3 Vijender Kumar joined as senior manager in the bank on 25.10.1991 in place of A-1. He deposed that A-1 was on leave and during period of his leave, he was placed under suspension and he (PW-3) was given charge of senior manager of this branch. By calling accountant Sh. P. N. Handa (PW-6) and branch Manager Ramesh Gola (PW-5), drawer and almirah of the chamber of A-1 were checked and a report Ex. PW 3/A was prepared in this regard. Ex. PW 3/B is another report dated 25.03.1992, as per which 12 cheques and a diary was seized lying at the bottom of the filing cabinet of A-1. As per PW-3, Ex. PW 1/A to 1/C were recovered from the drawer and cabinet of A-1. Thereafter on checking the ledgers of M/s Adreena Agencies these cheques were not found debited and account of concerned party was found to be overdrawn.
CC No. 33/2008 Page 28 of 599.1. During cross-examination, PW-3 has denied the suggestion that A-1 while proceeding on leave handed over the keys to the next person in command. There were cheques of other parties also which were found in the drawer of A-1. He denied the suggestion that A-3 was enjoying the credit facility earlier to his taking over the charge and the same was continued. He admitted that all the cheques and vouchers of the particular day are counted, sealed and tallied as per procedure. The cheques and vouchers will not be sealed unless day book is tallied of a particular day. C-1 to C-4 shown in RBI schedule Ex. PW 1/D denotes the current account no. 1, 2, 3, 4, and CC denotes cash credit and DD denotes drafts payable. The day book is tallied to locate the difference if any in cash, clearing and transfer. If the day book is not tallied, day book writer has to scan the difference and final it. If the instrument is not returned to RBI, the bank is at loss. He did not join any public person, customer or some outsider to witness the inventories or seizure process done through Ex. PW 3/A, as there is no such practice in the bank. At the time of making seizure, there was simultaneous checking the same with the ledger account, and he immediately came to know about the cheques not being debited in the relevant accounts of the firms.
9.2. PW-3 further stated during his cross-examination that cheques received from inward clearing if not returned in time, the same are debited in the account of the bank at RBI same day after the expiry of the scheduled time, i.e. 01.30 PM approximately. Day book writer has to tally the grand total of these transactions of the branch. The day book is always verified by the manager or the official designated by him.
CC No. 33/2008 Page 29 of 599.3. PW-5 Ramesh Gola, who was working as joint manger in the same branch and PW-6 P. N. Handa, who was posted as manager in the same branch are other signatories of both the reports Ex. PW 3/A and Ex. PW 3/B and have corroborated the version of recovery narrated by PW-3.
9.4. During his cross-examination PW-5 has also admitted that entries in the day book are mentioned by day book writer after completion of the business of the bank of a particular day and officer in-charge tallies the correctness of the entries in the day book. He was one of the joint custodian and used to ensure securities of the parties in the concerned security ledger. He does not remember now whether CC limit of M/s Adreena Agencies was fully secured or not. After the cheques are debited and day book is tallied, they are stitched and kept in bundle form and thereafter they cannot come in the drawer. Only the person from whose drawer the cheques have been recovered can tell how they reached in his drawer. The bank had debited the three cheques of M/s Adreena Agencies after the same were recovered from the drawer. The interest calculated on account of these three cheques was also debited in the account of the firm. A sum of Rs. 15,000/- and Rs. 5497/- was debited on 25.08.1990. He testified that if that instrument cannot be traced out on the say day, then day book is stopped there and another day book is started and for this purpose 3-4 day books are maintained. He admitted that M/s Adreena Agencies was availing over draft facility for a long time and the amount of transaction used to be very heavy. He further testified that vide Ex. PW 5/DB Zonal office sent a direction to allow M/s Adreena Agencies operation of its account and vide letter Ex.
CC No. 33/2008 Page 30 of 59PW 5/BC Zonal office informed that despite exceeding over draft limit, the cheques of that party was honoured on oral instructions of Zonal office.
9.5. The Ld. counsel Sh. Mukesh Kalia for A-1 has assailed these recovery memos on various count. Inter-alia, one of the contention raised is that search was conducted on 01.11.1991 and for the first time after lapse of another two years, i.e. 13.08.1993, complaint was lodged with CBI. It has been contended that huge delay demolishes the prosecution case as A-1 has no reason to keep these cheques in his almirah/drawer in the office.
9.6. Why A-1 kept these cheques concealed in his office even after more than 2 years of the incident, only he can answer better. But the factum of recovery of these cheques from his drawer/cabinet on 01.11.1991 stands duly proved from the memo Ex. PW 3/A and Ex. PW 3/B respectively.
9.7. The other contention raised by Sh. Kalia is that though A-1 was very much available but the alleged search has been taken by the interested witnesses in his absence and no independent witnesses were associated. It is further urged that as per procedure, admitted by the witnesses, that in case any officer proceeds on long leave, then as per banking procedure, officer 2nd in command is always having duplicate set of keys with him. It has been stated that as one duplicate key was available with the officer 2nd in command, then possibility of planting the cheques in the drawer of A-1 cannot be ruled out. The Ld. counsel has CC No. 33/2008 Page 31 of 59 further submitted that there are various contradictions in the statement of these witnesses qua the recovery of these cheques which creates shadow of doubts on their creditability and this alleged recovery.
9.8. It is relevant to mention here that as per Ex. PW 3/B, 12 cheques and as per Ex. PW 3/A, 49 cheques were recovered from the cabinet and drawer from the office of A-1. As per PW-5, keys of the drawer were obtained from the house of A-1 from his mother. During his cross-examination by A-1, he has stated that he does not remember who has gone to collect the keys from the house of A-1, accused no.1 was not present at that time when drawer was opened and inventory was prepared. He has further stated that he has not personally visited the house of the accused to collect the keys. He has no personal knowledge that mother of A-1 has expired in 1990 and she could not handover the keys. He has denied to have stated before CBI that keys of drawer of A-1 were with Mr. Handa (PW-6) and drawer were opened after taking keys from him. On this, PW-5 was confronted with his statement Ex. PW 5/DA where it is so recorded. It is pertinent to mention here that PW-5 has clarified in his statement that cash keys were with Sh. P. N. Handa (PW-6), 2nd man in command.
9.9. PW-6 Sh. P. N. Handa has admitted during his cross- examination that A-1 was on leave for about 8-10 days prior to the day when search of the drawer of the table was taken in the bank. But he admitted that as per procedure whenever any officer goes on leave, the keys are handed over to senior officers or 2nd man in command. He further admitted that there are two sets of keys in respect of important CC No. 33/2008 Page 32 of 59 places, duplicate keys are kept in the strong room and one set of the keys of the strong room is kept in another branch.
9.10. Strong room and some other almirah etc. in the bank are important places, as far as working of the bank is concerned. But cabinet and drawer in the office of senior manager are personal space and cannot be put in the category of important places as mentioned by PW-6. Moreover, there is no specific suggestion to any of the witnesses given by A-1, if before proceeding on leave, he had handed over the keys of his drawer/cabinet in his office to any of his subordinate or he has not brought any evidence on record to establish that 2nd /duplicate keys of his drawer was available in the bank.
9.11. Ld. counsels for the accused persons have submitted that statement of PW-5 and PW-6 is not inspiring confidence as they have been confronted with their statements recorded under Section 161 Cr.P.C.on the points regarding possession of the keys of the drawer and cabinet in the office of A-1. In Ex. PW 5/DA, PW-5 has stated that keys of the drawer of A-1 were with Mr. Handa (PW-6) and drawers were opened after taking keys from him. Except in Ex. PW 5/DA, it has not come any where else in the statement of PW-3, or PW-6, that keys of the drawers of A-1 were with PW-6 and drawer was opened after taking keys from him. Except this confrontation the statement of PW-5 is found otherwise consistent and corroborating the statement of PW-6, the other bank official and witnesses of recovery of the cheques. Simply on the basis of this confrontation, the entire prosecution case regarding recovery of the cheques Ex. PW 1/A to PW 1/C from the drawer/cabinet of A-1 cannot be CC No. 33/2008 Page 33 of 59 disbelieved.
9.12. No doubt there is delay in reporting the matter to CBI, which was done vide complaint Ex. PW 9/A dated 13.08.1994. These cases are of complex nature and not like other cases falling under IPC or other penal provisions. UCO Bank which is government organization, must have taken its own time, going through hierarchical procedures, to lodge complaint against A-1. In view of the consistent statement of PW-3, PW-5 and PW-6 regarding recovery of these cheques from the drawer/almirah of A-1, I find no reason to disbelieve this recovery.
The status of cash credit (CC) Limit of M/s Adreena Agencies.
10.0 Ex. PW 11/D-1 (D-35) is the letter dated 13.10.1984 vide which CC limit of M/s Adreena Agencies was sanctioned for Rs. 10.50 lacs. As per condition (2) of this letter, the limit is to be renewed after one year.
10.1. One of the main contention raised on behalf of both A-1 and A-2 is that CC limit of M/s Adreena Agencies was in operation and as per working of the bank, same continued even after initially being sanctioned for one year. It has been contended that even prior to 14.05.1988 when cheques Ex. PW 1/A to C were received in the bank and thereafter the bank had extended the credit facility to M/s Adreena Agencies. It is urged that already account of M/s Adreena Agencies was showing in debit availing cash credit facility in lacs, the accused persons were having no reason to withheld these cheques to favour M/s Adreena Agencies.
CC No. 33/2008 Page 34 of 5910.2. PW-8 Sh. Kamal Kishore Jindal, Deputy Chief Officer (Credit) has deposed that CC accounts are working capital limits and for continuing business operation. Initially limits are valid for one year, but they are continued on regular basis as these limits are for day to day affairs of the borrowers. The credit facilities are continued without any request from the customer unless there are adverse remarks from the bank or bank has some doubts. It is the discretion of the manager how to deal with the cheque in case the cash credit facility is lapsed. This witness was cross-examined by Ld. PP. During his cross-examination he deposed that party availing the limits submits proposal of renewal of the same before lapse of limit. The limit sanctioned on 30.10.1984 had already expired on 30.10.1985. When the sanctioned limit lapsed, the manager should not allow transactions in the account or should not honour the cheque of the party without previous sanction of the competent authority.
10.3. PW-9 Arun Ray is the complainant as he had made complaint Ex. PW 9/A on 13.08.1993 being Zonal Manager to CBI. He deposed that he made this complaint against A-1, then Senior Manager, UCO bank, Sadar Bazar for committing irregularities of fraudulent nature to cause undue pecuniary advantage to M/s Adreena Agencies.
10.4. During his cross-examination by accused, he deposed that as per statement of account of M/s Adreena Agencies Ex. PW 9/D-2, the amounts of cheques Ex. PW 1/A to 1/C were debited on 03.01.1992. He volunteered that these cheques were not debited in the year 1988 when these cheques were issued and this account was also irregular. He CC No. 33/2008 Page 35 of 59 further testified that as per Ex. PW 9/D-2 interest of Rs. 21,214.60 was debited in the account of M/s Adreena Agencies being charged by the bank on account of cheques Ex. PW 1/A to C. 10.5. PW-10 Sh. Krishan Kumar is General Manager (Personal). He has proved the sanction Ex. PW 10/A for prosecution of A-1 and A-2. He has deposed that cash credit limit has to be renewed every year and if it is not done, it becomes irregular account.
10.6. To support their submissions that cash credit limit was continued to M/s Adreena Agencies, Ld. defence counsels have relied upon documents Ex. PW 5/DB and DC. The letter Ex. PW 5/DB is from Deputy General Manager to A-1 being senior manager of the bank and is dated 24.09.1991 regarding irregular account of M/s Adreena Agencies. This letter appears to be an advisory to A-1 being senior manager of the branch to reduce the irregularity in the account of M/s Adreena Agencies in the phased manner. The senior manager has further been directed that in view of the large scale irregularity allowed by the branch, it should be his primarily duty to closely monitor the account so that irregularity can be set right at the shortest possible time.
10.7. Ex. PW 5/DC is the copy of letter written by Manager UCO bank, Sadar Bazar branch dated 06.01.1988 to AGM Zonal office, mentioning that there is irregularity of Rs. 74,000/- approximately in the account of M/s Adreena Agencies. It is relevant to mention here that "eligible amount" is mentioned as 15.38 lacs on Ex. PW 5/DC.
CC No. 33/2008 Page 36 of 5910.8. Ex. PW 11/DA is the ledger of M/s Adreena Agencies for the year 1988, i.e. from January 1 to 30.12.1988. At the top of each page of the ledger running into 34 pages, it is prominently mentioned as "Lt 10.5 lacs @ 16.5%". On January 1, there is debit balance of Rs. 16,00,625.17/-. The cheque Ex. PW 1/A to C were received in this branch on 14.05.1988 vide RBI schedule Ex. PW 1/D. It is relevant to mention here that till 14.05.1988, the debit balance kept on fluctuating from 15.5 lacs to 16 lacs. From 14.05.1988 till 30.12.1988, the debit balance rose to Rs. 20,97,423.21ps. It is relevant to mention here that on 14.05.1988, there is a credit entry of Rs. 1,000/- and two debit entries of Rs. 400/- each. All these transactions are by clearing. The debit entries are vide cheque nos. 099907 and 099906.
10.9. Perusal of RBI schedule Ex. PW 1/D reveals that 39 cheques of cash credit (CC) accounts, which are out of the total 162 cheques, were received in the branch vide RBI schedule Ex. PW 1/D. The cheque Ex. PW 1/A to C (having cheques no. 99911, 99912 and 94384) and cheques having nos. 99907 and 99906, are found mentioned in this schedule. From this it stands established that 5 cheques issued by M/s Adreena Agencies were received in the branch by RBI schedule Ex. PW 1/D, out of which 2 cheques having no. 99906 and 99907 got debited but the other three cheques, i.e. Ex. PW 1/A to C disappeared and as already discussed, these cheques were subsequently recovered from the drawer/cabinet of A-1 by PW-3 vide Ex. PW 3/A. 10.10. It has been contended on behalf of the accused persons that CC limit of Adreena Agencies was renewed from time to time and the party CC No. 33/2008 Page 37 of 59 continuously used the CC limit on or after 14.05.1988 and this account was overdrawn. It has been stated that bank continuously cleared the cheques of this firm. The account of the firm was in continuous operation and heavy transactions were made in this account. It is stated that IO has not made any investigation about the fact that why the account of M/s Adreena Agencies was continuously being debited and credited when CC limit expired in 1985. The ld. counsels has relied upon letter dated 06.01.1988 (D-11/35) written by Sh. G. S. Ishrani, then manager in UCO Bank, Sadar Bazar branch to AGM Zonal Office stating that balance in CC account of M/s Adreena Agencies on 01.01.1988 was Rs. 15,81,653.15ps and as such the account is irregular by Rs. 74,000/- approximately. It is urged that this proves that M/s Adreena Agencies was having a limit for the arrangement of 15.07 lacs, on 04.01.1988, even before joining of A-1 in the bank.
10.11. Ld. PP has objected to this letter stating that same has not been proved and cannot be considered by the court. But it is relevant to mention here that PW-5 though not author of this document but has exhibited this document as Ex. PW 5/DC. Moreover, it is a part of the record seized by CBI during investigation. I find no reason to not consider the same.
10.12. Ex. PW 3/DA is letter dated 13.06.1988 written by Sh. S. V. Prabhu, Regional Manager of the bank to M/s Adreena Agencies mentioning that they are valued customer of the bank. Ex. PW 3/DC is letter dated 02.11.1992 written by senior manager of the bank that their Head Office has approved opening of their fresh current account by CC No. 33/2008 Page 38 of 59 further regularization of all irregularities.
10.13. One thing is crystal clear from the evidence discussed above that though as per record the CC limit sanctioned vide Ex. PW 11/D-1 dated 30.10.1984 for Rs. 10.50 lacs was only for one year but the same continued thereafter. It is also apparent from the record that Sadar Bazar branch of UCO bank operated the CC account of M/s Adreena Agencies in the year 1988 considering its CC limit to be of 10.5 lacs @ 16.5%. The ledger of the firm prior to 1988 and subsequent to 1988 have not been exhibited on record, accordingly, this court did not get opportunity to peruse these ledgers. But as already discussed, as per the documents Ex. PW 5/DC and Ex. PW 3/DC, status of CC limit remained the same till 1992.
10.14. No evidence has come on record that when A-1 had joined this branch as senior manager. As per Ld. counsel for A-1 he joined in 1988 and at the time of his joining, the status of CC account of M/s Adreena Agencies was over drawn to the extent of Rs. 15-16 lacs.
10.15. Why flouting of all rules and regulations, this firm was allowed to avail CC limit though not sanctioned as per requirement of the banking procedures and laws, is difficult to comprehend. However, one thing is clear that same continued during the term and tenure of A-1 in the Sadar Bazar branch. No doubt A-1 being senior manager had duty to cheque this irregularity but he also decided to keep mum and ignoring it, he continued with same practice being followed by his predecessors.
CC No. 33/2008 Page 39 of 5910.16. The amount of cheques Ex. PW 1/A to C is totaling to Rs. 18,093.50ps. If these cheques would have been debited in the account of M/s Adreena Agencies that would not have made much difference, as already discussed the debit balance in the account of the firm kept on varying between Rs. 15.5 lacs to approximately to Rs. 19 lacs during the entire year of 1988. But we cannot loose sight of the fact that vide Ex. PW 3/A and Ex. PW 3/B various other cheques were recovered from the drawer/cabinet in the office of A-1 and these 3 cheques Ex. PW 1/A to C are part of these recoveries. The valuation of other cheques recovered is running into lacs. It is further relevant to mention here in connected matter (CC no. 32/2008) where A-1 is also accused, three cheques of M/s Adreena Knitwears Pvt. Ltd. for Rs. 3,04,106.30 pertaining to 1989 were also recovered vide Ex. PW 3/A and Ex. PW 3/B. Since, no evidence has come, it would not be appropriate to discuss about other cheques recovered from the drawer/cabinet from the office of A-1.
10.17. As per banking procedure discussed earlier, the withholding of cheques Ex. PW 1/A to C, after receiving the same by RBI schedule Ex. PW 1/D has certainly benefited M/s Adreena Agencies to the detriment of the bank.
10.18. A-1 being senior manager was over all responsible for running the bank. PW-4 has specifically deposed that RBI schedule Ex. PW 1/D bears initial of A-1. Moreover, A-1 being over all in-charge of the branch was in a position to have possession of these cheques as well as other cheques received for clearing by RBI schedule. The cheques would not have fallen by mistake or due to some other reason in the personal space, CC No. 33/2008 Page 40 of 59 i.e. drawer/cabinet in the office of A-1. Motive behind detention of these cheques is obvious that by his act A-1 wanted to accommodate and give benefit to M/s Adreena Agencies.
Defence taken by A-2 11.0. It is admitted on the part of A-2 that while writing day book (Ex. PW 11/DA-3) on 14.05.1988, he had observed difference of Rs. 18,093.50ps on the clearing side (the cheques Ex. PW 1/A to C are totaling Rs. 18,093.50). He tried to sort out this difference. These three cheques were located and he was directed by in-charge to make corresponding entries in the day book. As per A-2, accordingly, he entered these cheques in the day book and thereafter entries tallied.
11.1. To establish his defence, A-2 examined 4 witnesses. He himself entered into witness box and made statement as DW-1 deposing that on 14.05.1988, he was writing day book; first of all, all vouchers are entered therein and thereafter entries are tallied and then total is tallied from cash scroll of the cashier; the clearing head in the day book is tallied with RBI schedule and entries of the transfer column of the day book are accordingly tallied with the transfer register. He observed the difference of Rs. 18,093.50ps on clearing side. He wrote this difference with pencil on the day book. Thereafter, he tried to trace out the same at his level but he could not locate it. He reported the matter to his in-charge, thereafter, he and his in-charge checked the records to locate the source of difference. The cheques are received in the branch vide RBI schedule and the same was compared. On comparison, it was found that three CC No. 33/2008 Page 41 of 59 cheques mentioned in the schedule did not find mention in the day book/cash book. Such types of lapses ordinarily occur. He and his in- charge tried to locate the cheques in the branch and three cheques were found in the branch. These three cheques were handed over by his in- charge to CC in-charge for debiting the same and he was directed to make corresponding entries in the day book. The said three cheques were then entered by him and thereafter the entires tallied. The cheques were received in the branch on 13.05.1988 and as day book writer he was concerned with the said cheques only on 14.05.1988. In case there was no balance in the account of the concerned party, the cheques were to be returned back on 13.05.1988 itself by 1.00 PM.
11.2. He further deposed that after these cheques were located on 01.11.1991, a vigilance enquiry was initiated by the bank. Many bank officials and officers were terminated/suspended in pursuance to the said enquiry. Departmental action was also initiated against some. His role was assessed and he was given a clean chit and no adverse order was passed against him. He was not even named in the initial complaint lodged by the bank with CBI.
11.3. During his cross-examination by Ld. PP, he admitted that entry in the day book was made by him in the debit/clearing column. He denied the suggestion that it was intentionally done in pursuance of conspiracy with co-accused and he had not seen the cheques on that day and had made entries in day book Ex. PW 11/DA-3 without seeing the same.
11.4. In support of his deposition, A-2 has relied upon UCO Bank CC No. 33/2008 Page 42 of 59 Mannual of instructions Vol.-V (Sundries and accounts). The procedure which the bank is supposed to follow during inward clearing and how the day book is required to be written has already been discussed in earlier paras.
11.5. To prove revocation of his suspension, A-2 has examined DW-2, DW-3 and DW-4. DW-2 Sh. Joginder Pal Bhagat, Chief Manager (HR & Vigilance), UCO Bank, Zonal Office, Parliament Street produced the file pertaining to review of suspension of A-2. Ex. DW 2/A is the letter dated 25.06.2004 signed by AGM Gopi Chand. The same is identified by DW-2. Vide this letter A-2 was exonerated and his long pending suspension was revoked. The reasons given in this letter are mentioned in para 1, which is as follows:-
"Sh. M. C. Sharma was placed under suspension on 04.05.1995 on the recommendations of CBI. It may be observed that the Bank appears to have treated Sh. Sharma as innocent for the reason that Shri Sahrma and one Shri Ramphal, PFM no. 33530 clerk were day book writers and when Shri Sharma pointed out the difference in day book tallying to the branch manager, he was advised by the branch manager that Shri Sharma should go for tallying the differences in day book. As for differences, the vouchers were being made. In this way, Shri Sharma appears to have tallied the Day Book for a day. On basis thereof, CBI implicated Shri Sahrma."
11.6. Mark D-2/A is letter dated 06.10.2004 written by Deputy General Manager (Personnel) to General Manager, Regional Office, New Delhi on the same day. Mark D-2/2 and D-2/3, both are dated 11.11.2004 recommending revocation of suspension of A-2.
CC No. 33/2008 Page 43 of 5911.7. DW-3 Sh. K. K. Girdhar, senior manager UCO bank Zonal Office filed copy of revocation of suspension of A-1 order dated 11.11.2004 and the same is mark PD-3B. As per certificate Ex. DW 3/A filed by him, the letter dated 21.09.2004 written by General Manager, Regional Office, Parliament Street, New Delhi to Deputy General Manager (Personnal) UCO Bank Head Office Kolkata recommending review of long pending suspension of A-2 is not traceable in the record of the bank.
11.8. DW-4 V. K. Upadhyay retired as General Manager (HQ), UCO Bank, Kolkata and remained posted as General Manager, UCO Bank for Delhi and J&K from 2004 to 2006. He deposed that documents mark PD-3A is photo copy of the original and appears to bear imprint of his signature on these sheets. Mark PD-3A is the copy of letter stated to be written by DW-4 dated 21.09.2004 vide which revocation of suspension of A-2 was recommended. Further mentioning that he had remained suspended for the last 9 years 4 ½ months, the extent of his suffering has been disproportionately high to the gravity of his misconduct/omission.
11.9. From the statement of DW-2 to DW-4 and the documents produced by them, it stands established that A-2 was put under suspension on 04.05.1995 and his suspension was revoked w.e.f. 11.11.2004.
11.10. The main contention raised on behalf of A-2 is that after he located the difference of Rs. 18,093/- on the day book, he reported the matter to his in-charge, he and his in-charge located these three cheques CC No. 33/2008 Page 44 of 59 and on the directions of his CC in-charge, he made corresponding entries in the day book/cash book. Who was in-charge of A-2, he has not named him specifically. In his statement DW-1, has stated that strokes in the red link on the entries were made by in-charger/manager/joint manager, i.e. either by Sh. Ramesh Bhola (Pw-5) or Sh. P. N. Handa (PW-6). But no suggestion has been put to both these witnesses during their cross- examination on behalf of A-2. This falsity the defence taken by A-2. Moreover, as per mark PD-3A the letter recommending his revocation of suspension, the main reason seeking revocation of his suspension is that he had pointed out this difference to the branch manager and on the advise of branch manager, he tallied the day book of that day. A-2 should have called his branch manager or his in-charge to establish his defence. He has failed to do so. Merely because the employer bank of A-2 revoked his suspension, which was because of this misconduct on his part, the evidence which has come against him, implicating him in this case cannot be brushed aside.
11.11. It has been contended on behalf of A-2 that I.O. ignored to consider the responsibility of the in-charge of day book writer as work done by each clerk is checked by his in-charge. It is pointed out that I.O. PW-11 has conceded during his cross-examination that there is supervisory officers to supervise the work of the day book writer or any of the work of the clerk. He does not remember whether or not he had interrogated supervisory officer of A-2 but he must have interrogated him. The Ld. counsel has also drawn attention of this court to statement of PW-3 where he has admitted that day book writer is not personally responsible for any irregularity in the said book because it is always CC No. 33/2008 Page 45 of 59 verified by the manager. It has been submitted that since the manager was in-charge of A-2 and he had countersigned the day book, A-2 cannot be held responsible for any irregularity, if found in it.
11.12. As admitted by A-2, he was day book writer on 14.05.1988 and as per him initially day book did not tally but thereafter his in-charge showed him three cheques valuing Rs. 18,093/- (Ex. PW 1/A to C) and accordingly, day book got tallied. This plea of A-2 that the three missing cheques Ex. PW 1/A to C were found by his in-charge and on his directions he made corresponding entries in the day book, is already disbelieved. It is relevant to mention here that there is no entry regarding these three cheques any where in the bank records after its receipt in the bank by PW-1 vide RBI schedule Ex. PW 1/D. Who was the in-charge of A-2 has no where been named. These three cheques were found in the drawer/cabinet of the office of A-1 on 02.11.1991 by PW-3 who succeeded A-1 in the same branch. The defence taken by A-2 is not inspiring any confidence and is found to be an after thought.
11.13. As already discussed, day book is an important document as far as working of the bank is concerned and at the end of the day all the transactions of the bank, for that day, are tallied to find out any mistake in the day book. Even if for the sake of arguments defence taken by A-2 is accepted that he tallied the day book on the instructions of his in-charge, he being the author of the day book, should not have done so without verifying if these cheques have been properly entered in the other bank records like ledger, refer book etc. But to the reasons best known to A-2, he has not done so.
CC No. 33/2008 Page 46 of 5911.14. The other contention raised by ld. defence counsels for the accused persons is that loan/overdraft facility given to the party was fully secured and there was no chance of any loss to the bank, as in the event of the failure of the party to repay the amount of the bank, the bank could have recovered its aforesaid money by selling/disposing of its property. It has been argued on behalf of A-1 that the prosecution has deliberately withheld the documents regarding the fact that overdraft facility given to M/s Adreena Agencies was secured. Whatever documents were available with the bank regarding CC limit/overdraft facility to M/s Adreena Agencies have been brought on record either by the prosecution or by defence in defence evidence. As already discussed, the CC limit for sum of Rs. 10.5 lacs sanctioned to M/s Adreena Agencies on 30.11.1984 was only for one year but despite it having been lapsed, M/s Adreena Agencies was allowed to avail the same till this irregularity was detected in Nov. 1991. Absolutely, no evidence has come on record, if this overdraft facility was fully secured and in the event of any loss, bank could have recovered the amount by disposing the security.
11.15. One thing is relevant to discuss here that as far as role of A-1 in this entire conspiracy is concerned, it appears that since CC account of M/s Adreena Agencies was already overdrawn, he acting under an agreement with A-3, to benefit M/s Adreena Agencies to the detriment of the bank, allowed three cheques Ex. PW 1/A to C to get cleared by not returning the same to RBI on the same day. The two other cheques each of Rs. 400/- of M/s Adreena Agencies also received in the bank vide RBI schedule Ex. PW 1/D same day were debited in the account of the firm CC No. 33/2008 Page 47 of 59 being of lower value and the other three cheques Ex. PW 1/A to C of total value of Rs. 18093/- were deliberately detained. A-1 could have allowed the debit of these three cheques also in the CC account of the firm. But since account was already heavy over drawn, due to this reason, to accommodate A-3, he illegally detained these three cheques with him, thereby, allowing the drawee of these cheques to get the amount credited in their respective accounts and accordingly causing pecuniary loss to the bank.
11.16. The other contention raised by Ld. counsel for A-2 is that legal position is no more rest integra that primary requisite of offence under Section 5 (1)(d) of the Act is to prove the demand or request for valuable thing or pecuniary advantage by the public servant. In the absence of proof of demand or request of public servant for valuable thing or pecuniary advantage, the offence under Section 5 (1)(d)) of the Act cannot be held to be established. In support of his submissions, Ld. counsel has relied upon A. Subair (supra), C. K. Damodaran Nair (supra) and Subash Parbat Sonvane (supra). The Ld. counsels for the accused persons have contended that mere failure to follow the prescribed rules or procedure does not amount to an offence under Section 5 (1)(d) of the Act.
11.17. On the other hand, Ld. PP has submitted that important ingredients of the offence under Section 5 (1)(d) of the Act is "obtains for himself or for any other person any valuable thing or pecuniary advantage", means that prosecution is only required to prove that because of the criminal misconduct of the accused, some one has CC No. 33/2008 Page 48 of 59 received a pecuniary advantage. It is stated that law is settled that the prosecution is not required to prove the bribe or pecuniary advantage received by the public servant or any one else on his behalf. In support of his submissions, he has relied upon M. Narayanan Nambiar Vs State of Kerala [1962 Legal Eagles (SC) 362].
11.18.To support his arguments, Ld. counsel for A-2 has relied upon the observations made by court in A. Subair (supra), C. K. Damodarn Nair (supra) and Subhash Parvat Sonvane (supra). Ld. counsel has specifically drawn attention of this court to para 10 of the observations made by Hon'ble Apex court in A. Subair (supra) which runs as follows:-
"The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecunary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established."
11.19.Facts of these three cases relied upon by Ld. counsel for A-2 are distinguishable from the facts of the present case. All these three cases pertains to demand of illegal gratification on the part of the public servant and his apprehension in a trap laid by enforcement agencies. The present case pertains to abuse of official position by public servant and by such abuse, he is alleged to have obtained pecuniary advantage for other person, i.e. A-3 in this case. In A. S Subair (supra), accused was convicted for offence under Section 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988. Same is the position in Subash Parvat Sonvane (supra). C.K. Damodarn Nair (supra) CC No. 33/2008 Page 49 of 59 pertains to Prevention of Corruption Act, 1947 and accused was held guilty for offences under Section 120-B and Section 5(2) read with Section 5(1)(d) of PC Act, 1947. It is relevant to mention here that with the amendment in the Prevention of Corruption Act, 1988, offence as provided under Section 161 IPC were incorporated as Section 7 of Prevention of Corruption Act, 1988. Accordingly, Section 161 IPC was omitted by Act 48 of 1988 dated 9.9.1988 from the IPC. The observations made by Hon'ble Apex Court in para 10 in A. Subair (supra) cannot be taken in isolation and it has to be read in context to the facts of that case. Ld. counsel has failed to produce any authoritative pronouncement of any court to prove his contention that to be successful in conviction under Section 5(1)(d) or [13(1)(d) of the new Act, 1988] one of the necessary ingredient which prosecution is required to prove is that accused public servant has obtained any valuable thing or pecuniary advantage for himself or for of his kith or kin.
11.20. From the evidence discussed above, it is a case of giving pecuniary advantage by A-1 and A-2 to D. K. Jain partner of M/s Adreena Agencies (A-3) while acting in criminal conspiracy by abusing their position as public servant. In Runu Gosh (supra) accused persons were held guilty for offences under Section 161 IPC read with Section 13(1)(d) and Section 13 (2) of Prevention of Corruption Act, 1988. In appeal before Hon'ble High Court, Hon'ble Single Judge sent a reference for consideration of the appeal by larger bench of two Hon'ble judges. The reference inter alia contains a query that a public servant is not shown to have gained any pecuniary benefit but is accused of abusing official position and obtained it for another person, can he be convicted under CC No. 33/2008 Page 50 of 59 Section 13(1)(d) clause (i) to (ii) of Prevention of Corruption Act, 1988. In the case accused persons were held guilty for offence under Section 120- B IPC read with Section 13(1)(d) clause (ii) & (iii) and Section 13(2) of Prevention of Corruption Act. It was not case of the prosecution if by favouring the private companies in Government tendering, accused persons have obtained any pecuniary benefit or financial gain for themselves. It was on the strength of evidence that by abusing their official position or without any public interest, pecuniary advantages were given to private parties by awarding government contracts by accused persons, their convictions were upheld by the High Court.
11.21.The Hon'ble Delhi High Court in case title Radhey Sharma & ors Vs. CBI [Crl. Rev. No. 528/06, 529/06 and 530/06], date of decision 23.04.2007, has not accepted the submissions made by accused persons that illegal gratification having been demanded or received by any of the government servants, is sine quo non for offence defined under Section 13(2) read with Section 13(1)(d) of the Prevent of Corruption Act, 1988. In para 10, court has observed as follows:
"In the light of the clear textual position, the argument that the materials on record not showing any advantage to the petitioner and, therefore, leading to the conclusion that no charges can be framed against them clearly has to fail. "
Conclusion 12.0.In view of the aforesaid discussions, it is considered that prosecution has been able to prove beyond reasonable doubt that
(a) all the accused persons namely accused no. 1 V. K. Choudhary, Sr. Manager at UCO Bank, Sadar Bazar branch; accused no. 2 Mahesh CC No. 33/2008 Page 51 of 59 Chand Sharma, Day book writer at UCO Bank, Sadar Bazar branch and accused no. 3 D.K. Jain, partner of M/s Adreena Agencies (abated) entered into a criminal conspiracy to cheat UCO Bank, Sadar Bazar branch and in pursuance to the said conspiracy accused no.1 V. K. Choudhary took away /concealed the three cheques (Ex. PW 1/A to PW 1/C) to help accused no. 3 in getting these three cheques cleared as account of accused no. 3 was already running into heavy debit balance and A-3 was allowed to avail CC limit without their being any formal sanction to this effect. Acting under this conspiracy, accused no.2 Mahesh Chand Sharma made corresponding entries in the day book/cash book so that factum of taking away the three cheques (Ex. PW 1/A to PW 1/C) by accused no.1 V. K. Choudhary and giving illegal benefit to accused no. 3 of these three cheques remained undetected.
(b) Accused no.1 V. K. Choudhary, being senior manager of UCO Bank, Sadar Bazar branch and accused no.2 Mahesh Chand Sharma, being day book writer of UCO Bank, Sadar Bazar branch by illegal means and abusing of their official position obtained pecuniary advantage for Rs. 18,093/- for accused no. 3 D. K. Jain, partner of M/s Adreena Agencies and caused loss of this amount to UCO Bank, Sadar Bazar branch by getting three cheques (Ex. PW 1/A to PW 1/C) of this amount cleared.
(c) Accused no.3 D. K. Jain, partner of M/s Adreena Agencies (abated) being aware that there is no formal sanction of CC limit, dishonestly and fraudulently induced UCO Bank, Sadar Bazar Branch to get the three cheques Ex. PW 1/A to PW 1/C totaling Rs. 18,093/- cleared by withholding the same in the branch.
12.1 In view of the aforesaid conclusion, it is held as under:-
CC No. 33/2008 Page 52 of 59(a) Both accused namely accused no.1 V. K. Choudhary and accused no.2 Mahesh Chand Sharma are held guilty for commission of offence punishable under Section 120-B read with Section 420 IPC and Section 5 (2) read with Section 5(1)(d) of Prevention of Corruption Act, 1947 and they are convicted accordingly.
(b) Accused no.1 V. K. Choudhary is held guilty for commission of offence under Section 420 IPC and Section 5(2) read with Section 5(1)(d) of Prevention of Corruption Act, 1947 and he is convicted accordingly.
(c) Accused no. 2 Mahesh Chand Sharma is held guilty for commission of offence under Section 420 IPC and Section 5(2) read with Section 5(1)(d) of Prevention of Corruption Act, 1947 and he is convicted accordingly.
13.0Both the accused be heard on the quantum of sentence.
Announced in the open court (SANJAY GARG-I)
on 30th July, 2015 SPECIAL JUDGE-IV, CBI (PC ACT)
TIS HAZARI COURTS, DELH
CC No. 33/2008 Page 53 of 59
IN THE COURT OF SH. SANJAY GARG-I :
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC No. 33/2008
ID No. 02401R0214552001
Central Bureau of Investigation (CBI)
Versus
1.V. K. Choudhary,
2.Mahesh Chand Sharma
3.D. K. Jain, Partner of
M/s Adreena Agencies.(abated).
ORDER ON SENTENCE.
1. Heard Shri V. K. Ojha, substituted PP for CBI as
regular PP Sh. Anil Tanwar for CBI is on leave & Shri Mukesh Kalia, Ld. defence counsel for convict V. K. Choudhary and Sh. H. S. Chaudhary, Ld. defence counsel for convict Mahesh Chand Sharma.
2. Ld. Counsel for Convict V.K. Choudhary submits that Convict has faced this trial regularly for 22 years, is aged 76 years and suffering from various ailments, namely heart problem, diabetes, blood pressure, facial paralytic and severe problem of CC No. 33/2008 Page 54 of 59 arthritis. It is stated that wife of the convict is aged 72 years, she is dependent upon him and suffering from various ailments including arthritis. It is stated that because of this case convict has lost all his service benefits. It is further stated that the financial loss suffered by the bank is very small and the same has been recovered before the registration of the FIR. It is stated that it is a fit case to be considered under the Probation of Offenders Act. In support of his submissions counsel relies upon a case titled as Amar Singh Vs. CBI judgment dated 22.07.2010 of Hon'ble High Court of Delhi.
3. Ld. Counsel for Convict Mahesh Chand Sharma submits that Convict has faced this trial regularly for 22 years. It is stated that convict was reinstated by the department and he is in service of the bank. It is stated that he has a family constituting his wife, one daughter and one son. It is stated that the daughter of convict is getting married soon. It is stated that he is not involved in any other criminal case. It is stated that it is a fit case to be considered under the Probation of Offenders Act.
4. Ld. substituted PP has submitted that keeping in view the facts and circumstances of this case, convicts deserve no leniency and they should be sentenced to the maximum term of imprisonment. It is stated that convict V. K. Choudhary is also convict in connected CC No. 32/2008 and this fact be also considered while awarding sentence.
5. In this case convict V. K. Choudhary and Mahesh CC No. 33/2008 Page 55 of 59 Chand Sharma while working as Senior Manager and Day Bookwriter of the bank have committed these offences to obtain pecuniary benefit for A-3 (since deceased). The victim in this case is the public sector bank. Since the loss suffered was by National Exchequer, due to this reason, in my view convict does not deserve to be considered under the Probation of Offenders Act.
6. In Santa Singh Vs. State of Punjab, 1976 SCC(Crl) 546, the Hon'ble Apex Court held:
"A proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances- extenuating or aggravating-of the offence, the prior criminal record, if any, of the offender, his age and educational background, his record as to employment, home lief, sobriety and social adjustment, his emotional and mental condition, the prospects for his rehabilitation and return to normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such deterrence in respect of the particular type of offence. These are factors will have to be taken into account by the court in deciding upon the appropriate sentence.
7. In Amar Singh (supra), the court has observed that in criminal jurisprudence, punishment for an offence is meant to achieve three-fold purpose i.e. to punish the offender with a view to make him realise that he has committed a wrongful act, to deter the potential offenders as well as the offenders from committing any offence and to reform the offender. In the modern civilized CC No. 33/2008 Page 56 of 59 society, the reformatory aspect is given somewhat greater importance. While deciding on the question of punishment, the Court is under obligation to consider various available factors and come to a reasonable conclusion about the quantum of punishment which creates a fine balance between aforesaid three aspects of punishment, taking into account the interest of society. The punishment should be neither be too lenient nor too harsh.
8. The amount cheated involving both the convicts in this case is to the tune of Rs. 18,093/-. It has been submitted by both the Ld. counsels for the convicts that this amount was debited in the account of A-3 and subsequently same was realised with penal interest.
9. Considering all aggravating and mitigating circumstances with regard to the facts of the case, different roles played by the convicts, their personal circumstances and their past record:
(A) Convict V.K. Choudhary is sentenced to (i) Rigorous imprisonment for one year and fine of Rs.
2,000/-, in default of payment of fine, to undergo simple imprisonment for one month for the offence punishable under Section 120-B read with Section read with Section 420 IPC and Section 5 (2) read with Section 5(1)(d) of Prevention of Corruption Act, 1947,
(ii) Rigorous imprisonment for one year and fine of Rs. 1,000/-, in default of payment of fine, to undergo simple CC No. 33/2008 Page 57 of 59 imprisonment for 15 days for the offence punishable under Section 420 IPC, and
(iii) Rigorous imprisonment for one year and fine of Rs. 2,000/-, in default of payment of fine to undergo simple imprisonment for one month for the offence punishable under Section 5(2) read with Section 5(1)(d) of Prevention of Corruption Act, 1947.
(B) Convict Mahesh Chand Sharma is sentenced to (i) Rigorous imprisonment for one year and fine of Rs.
1,000/-, in default of payment of fine, to undergo simple imprisonment for 15 days for the offence punishable under Section 120-B read with Section read with Section 420 IPC and Section 5 (2) read with Section 5(1)(d) of Prevention of Corruption Act, 1947,
(ii) Rigorous imprisonment for six months and fine of Rs. 1,000/-, in default of payment of fine, to undergo simple imprisonment for 15 days for the offence punishable under Section 420 IPC,
(iii) Rigorous imprisonment for six months and fine of Rs. 2,000/-, in default of payment of fine to undergo simple imprisonment for one month for the offence punishable under Section 5(2) read with Section 5(1)(d) of Prevention of Corruption Act, 1947.
10. All the sentences to run concurrently. Benefit of Section 428 Cr.P.C. be given to the convicts.
CC No. 33/2008 Page 58 of 5911. A copy of the judgment and order on sentence be given to the convicts.
12. File be consigned to record room.
Announced in the open court (SANJAY GARG-I) on 17th August, 2015. SPECIAL JUDGE-IV, CBI (PC ACT) TIS HAZARI COURTS, DELHI CC No. 33/2008 Page 59 of 59