Delhi District Court
State Through Cbi vs . Savita Devi & Others on 28 April, 2018
State through CBI vs. Savita Devi & others
IN THE COURT OF SH. VIRENDER BHAT
SPECIAL JUDGE, CBI-01, NORTH-WEST DISTRICT
ROHINI COURTS COMPLEX, DELHI
IN THE MATTER OF:
CBI No. : 111/16 (Old No. 01/10)
CNR No. : DLNW01-000244-2010
FIR No. : RC-71/2009/E/0001/CBI/EOU-II/New Delhi
Police Station: CBI/EOU-II/New Delhi
U/Sec: 120B r/w 420/467/468/471 IPC and
Section: 13(2) r/w 13(1)(d) of PC Act 1988
STATE
THROUGH
CENTRAL BUREAU OF INVESTIGATION,
NEW DELHI
VERSUS
CBI No. 111/16 (Old No. 01/10) Page No. 1 of 113
State through CBI vs. Savita Devi & others
1. Savita Devi
W/o Late Sh. Ombir Singh,
R/o C-9/1, DLF Phase-I,
Sukhchain Marg,
Gurgaon, Haryana.
..........Accused No. 1
2. S.L. Dhir
S/o Late Sh. M. L. Dhir,
R/o G-25, Mansrover Garden,
New Delhi-15.
..........Accused No. 2
3. Ravi Sethi
S/o Late Sh. Roshan Lal Sethi
R/o 270, Double Storey,
New Rajendra Nagar,
New Delhi.
(Proceedings abated vide order dated 02.08.2016)
..........Accused No. 3
4. Satish Sikri
S/o Late Sh. Q.R. Sikri,
R/o 31, Chander Nagar, Block-A,
Janak Puri, New Delhi-58.
..........Accused No. 4
CBI No. 111/16 (Old No. 01/10) Page No. 2 of 113
State through CBI vs. Savita Devi & others
5. D.C. Narnolia
S/o Late Sh. C. R. Narnolia,
R/o J-217, New Palam Vihar,
Phase-I, Gurgaon.
..........Accused No. 5
6. DRP Sunderam
S/o Sh. S. Deivasigamani,
R/o 9/4, 2nd Street, Teachers Colony,
Nanganallur, Chennai.
..........Accused No. 6
7. K.V. Prabhakar
S/o Late Sh. K.V. Surya Rao,
R/o 203 A, Sri Sai Heights,
Street No. 8, Habsigura, Hyderabad.
..........Accused No. 7
8. Om Prakash Sharma
S/o Late Chander Mani,
R/o C-153-154, Mahavir Enclave,
Part-III, New Delhi
..........Accused No. 8
9. Shanti Devi
W/o Sh. Om Prakash,
R/o C-153-154, Mahavir Enclave,
Part-III, New Delhi.
..........Accused No. 9
CBI No. 111/16 (Old No. 01/10) Page No. 3 of 113
State through CBI vs. Savita Devi & others
10. Sunil Kumar
S/o Om Prakash Sharma,
R/o C-153-154, Mahavir Enclave,
Part-III, Newe Delhi.
..........Accused No. 10
11. Raj Kumar
S/o Sh. Sunder Pal
R/o L-8/430, Ashiyana Angan,
Bhiwadi, Rajasthan.
..........Accused No. 11
12. Ravinder Vasudev
S/o Late Sh. Shyam Lal Vasudev
R/o G-13/C, Uttam Nagar,
New Delhi.
(Discharged vide order dated 10.05.2014)
..........Accused No. 12
Date of Institution : 02.01.2010
Date of judgement reserved on : 16.04.2018
Date of pronouncement of judgement : 28.04.2018
Appearance : Sh. Neetu Singh, Ld. PP for CBI.
Sh. Abhishek Prasad, Ld. Counsel for
accused Savita Devi (A1).
Sh. A.V. Shukla, Ld. Counsel for accused
S.L. Dhir (A2).
Sh. Rajan Bajaj, Ld. Counsel for accused
Satish Sikri (A4).
Sh. Yasvir Singh, Legal Aid Counsel for
accused D.C. Narnolia (A5).
CBI No. 111/16 (Old No. 01/10) Page No. 4 of 113
State through CBI vs. Savita Devi & others
Sh. Vijay Kaundal, Ld. Counsel for accused
DRP Sunderam (A6) and K.V. Prabhakar
(A7).
Sh. Rajesh Arora and Sh. R. Ramachandran,
Ld. Counsels for accused Om Prakash
Sharma (A8), Shanti Devi (A9) and Sunil
Kumar (A10).
Sh. P.K. Sharma, Ld. Counsel for accused
Raj Kumar (A11).
J U D G E M E N T :-
1. The FIR, in this case, was registered by CBI upon receipt of a complaint in writing from Sh. C. Rawal, Deputy General Manager, Canara Bank, New Delhi alleging therein that a borrower M/s Kumbh Steel Pvt. Ltd. through its Directors had availed bank finance by resorting to unscrupulous methods, by giving fake/fabricated documents relating to a non existing property as collateral security, double finance/multiple finance against the same goods already hypothecated to limits sanctioned to other group accounts and by prompting the advocate/valuer to give false certification with regards to the property furnished as collateral security.
2. Investigation was carried out by CBI and after conclusion of the investigation, the above named accused were charge-sheeted for having committed various offences under Indian Penal Code as well as under
the Prevention of Corruption Act, 1988.CBI No. 111/16 (Old No. 01/10) Page No. 5 of 113
State through CBI vs. Savita Devi & others
3. A3 Ravi Sethi was the Chief Manager/Branch Manager, Uttam Nagar Branch, Canara Bank at relevant time, A4 Satish Sikri was the Branch Manager of the said branch at the relevant time, A5 D.C. Narnolia was the Credit Manager of the said branch at the relevant time, A6 DRP Sunderam was the Deputy General Manager, Canara Bank, Circle Office, New Delhi at the relevant time and A7 K.V. Prabhakar was the Assistant General Manager, Canara Bank, Circle Office, New Delhi at the relevant time. A1 Savita Devi, A8 Om Prakash Sharma, A9 Shanti Devi and A10 Sunil Kumar were the Directors of M/s Kumbh Steel Pvt. Ltd. at one point of time or the other. A11 Raj Kumar is stated to have stood guarantor for the said company M/s Kumbh Steel Pvt. Ltd and had furnished the title deeds relating to plot of land bearing No. 6 situated in Khasra No. 116/9, Mahavir Enclave, New Delhi as collateral security. A2 Sh. S.L. Dhir was the approved valuer of the bank and is stated to have given false valuation report with regards to the properties furnished as collateral security on behalf of M/s Kumbh Steel Pvt. Ltd. A12 Ravinder Vasudev is an advocate by profession and had given Legal Scrutiny Report with regards to these properties.
4. There was one more director namely Ombir Singh of the said company M/s Kumbh Steel Pvt. Ltd, who is stated to be the kingpin of the entire conspiracy to cheat and defraud the bank but he had expired before the charge-sheet could be filed. It may be noted here that A1 Savita Devi is the wife of Ombir Singh, A8 Om Prakash Sharma and A9 Shanti Devi are his parents and A10 Sunil Kumar is his brother.
5. The gist of the allegations against the accused is that the company M/s Kumbh Steel Pvt. Ltd having Sh. Ombir Singh (since deceased), A1 CBI No. 111/16 (Old No. 01/10) Page No. 6 of 113 State through CBI vs. Savita Devi & others Savita Devi, A8 Om Prakash Sharma, A9 Shanti Devi and A10 Sunil Kumar as its directors had availed open cash credit limits in Canara Bank, Uttam Nagar Branch, New Delhi which was enhanced from time to time upon their request on the basis of prime security as stock in trade and collateral security in the form of mortgage of the following properties:-
(a) H. No. 52, Block-B, Bharat Vihar, Rajapuri, Uttam Nagar in the name of Ombir Singh.
(b) Flat No. G1 to G5, Saran Apartments, Moti Vihar, Village Silokhara, Gurgaon in the name of Ombir Singh and
(c) Plot No. 6, Khasra No. 116/9, Block B-2, Mahavir Enclave, Uttam Nagar, New Delhi in the name of Raj Kumar.
6. Once, the account became NPA and the bank proceeded to take possession of the aforesaid properties in order to auction these, it was revealed that the property mentioned at (c) Plot No. 6, Khasra No. 116/9, Block B-2, Mahavir Enclave, Uttam Nagar, New Delhi could not be traced as no such plot existed and the title deeds in respect of property mentioned at (b) i.e. G1 - G5, Gurgaon were fake/forged. Thus it dawned upon the bank that the loans were availed and sanctioned on the basis of forged and fake documents with respect of these properties.
CBI No. 111/16 (Old No. 01/10) Page No. 7 of 113State through CBI vs. Savita Devi & others
7. The company M/s Kumbh Steel Pvt. Ltd was incorporated on 09.03.2001 with authorized share capital of Rs. 1 lac only. It was duly registered with the Registrar of Companies, New Delhi and had Ombir Singh, Om Prakash Sharma and Shanti Devi as its promoter directors. A current account was opened in the name of the company in Canara Bank, Uttam Nagar Branch on 17.03.2001 bearing Account No. 6995. Accused Sunil Kumar was appointed as director of the said company on 18.05.2001.
8. The said company, through its directors, submitted a request to Canara Bank, Uttam Nagar Branch for sanction of credit limit in the sum of Rs. 60 lacs and furnished the properties i.e. Plot No. 52 Rajapuri, Bharat Vihar and G1 to G5, Halabad, Saran Apartments, Gurgaon (both in the name of Ombir Singh) as collateral security. The proposal was approved by the branch and was forwarded to circle office by Sh. R.L. Jarwal, the then Sr. Manager of Uttam Nagar Branch. The case was possessed in circle office by Sh. N.D. Sharma, the then Sr. Manager and credit limit in the sum of Rs. 50 lacs was sanctioned to the company on 02.08.2001. The sanction was conveyed to the branch 16.08.2001 while directing it to comply with following conditions:-
(i) EMT perfection to be confirmed by the legal section before release of limit for both the properties to be mortgaged. Upto date tax paid receipt of both the properties to be obtained.
(ii) Branch in charge to visit both the properties.CBI No. 111/16 (Old No. 01/10) Page No. 8 of 113
State through CBI vs. Savita Devi & others
(iii) Stocks to be inspected every month.
(iv) Drawing in the accounts to be permitted strictly for day to day business requirements/production purpose only.
9. The limit was released to the company on 30/31.08.2001. Necessary documents were executed by Ombir Singh on 25.08.2001.
10. Thereafter, the company requested for enhancement of limit from Rs. 50 lacs to Rs. 80 lacs and the proposal for enhancement was forwarded by Sh. R.L. Jarwal (Sr. Manager) to the circle office vide letter dated 14.05.2002. For this enhancement, LICs policies in the name of Ombir Singh, Shanti Devi, Om Prakash Sharma and Sunil Sharma were offered as collateral security in addition to the two immovable properties already furnished to the bank. A copy of valuation report dated 08.05.2002 prepared by accused S.L. Dhir (Panel Valuer) was also annexed alongwith the proposal. The case was processed at circle office and the enhancement of the credit limit to Rs. 80 lacs was permitted vide sanction memorandum dated 05.06.2002 subject to the condition that EMT perfection to be got confirmed by the legal section before the release of limit. Necessary documents were executed by Ombir Singh on 08.07.2002 and release of the limit to the company was started w.e.f. 05.06.2002.
11. In October, 2002, the company again approached the bank for enhancement of credit limit from Rs. 80 lacs to Rs. 100 lacs. This time, the proposal was forwarded by accused Satish Sikri (Manager of the CBI No. 111/16 (Old No. 01/10) Page No. 9 of 113 State through CBI vs. Savita Devi & others Uttam Nagar Branch) to circle office vide his letter dated 25.10.2002. The company had offered additional collateral security in the form of title deeds relating to the Plot No. 6 situated in Khasra No 116/9, Mahavir Enclave, New Delhi which stood in the name of accused Raj Kumar. The plot was valued at Rs. 70.32 lacs by accused S.L. Dhir (Panel Valuer). The case was processed at circle office and the limit was enahnced from Rs. 80 lacs to Rs. 95 lacs. The sanction was conveyed to the branch on 27.11.2002 with following conditions:-
(i) Before release of enhanced portion of the limits, branch to ensure perfection of existing EMT of the two properties and EMT of additional property offered in the form of Plot No. 6, Mahavir Enclave owned by Raj Kumar and valued at Rs. 70.32 lacs.
(ii) Upto date tax paid receipts of all the three properties to be obtained.
(iii) Branch to ascertain realistic value of collateral's and satisfied themselves.
12. The company again requested the bank in the month of November, 2003 for enhancement of the credit limit from Rs. 95 lacs to Rs. 150 lacs. A5 D.C. Narnolia (Credit Manager) and L. Raju (Chief Manager of the branch) forwarded the proposal to circle office on 28.11.2003. For this enhancement, the branch processed additional collateral security in the form of the equitable mortgage of built up single storey building i.e. H. No. 35, Village Rathi Vas, Gurgaon in the name of Mahesh Kumar, in CBI No. 111/16 (Old No. 01/10) Page No. 10 of 113 State through CBI vs. Savita Devi & others addition to already three mortgaged properties. When the proposal was discussed at the circle office, it was noted that the property situated at Rathi Vas seemed to be valued at a very higher side and recommended credit limit of Rs. 150 lacs fell beyond MPBF. Accordingly, enhancement was not permitted and renewal only the existing limits of Rs. 95 lacs was sanctioned. The office note, this regard was prepared by Sh. S.K. Gupta (Sr. Manager, Circle Office) and wa also signed by Sh. R.K. Arora, AGM and accused DRP Sunderam, DGM.
13. Meanwhile, Om Prakash Sharma and Shanti Devi had resigned from the directorship of the company w.e.f. 17.12.2002 which was intimated to the bank by accused Sunil Sharma vide his letter dated 15.01.2003. Accused Sunil Sharma also resigned from the board of directors of the company w.e.f. 26.10.2004 and his place, accused Savita Devi was inducted as director w.e.f. 22.10.2004.
14. The company again, through its director Ombir Singh and Savita Devi requested the bank for enhancement of limit from Rs. 95 lacs to Rs. 300 lacs in the month of November 2004. The proposal was forwarded by accused Ravi Sethi (Chief Manager) to the circle office vide letter dated 09.11.2004. The branch had recommended the enhancement of the credit limit of Rs. 200 lacs on the basis of mortgage of existing three properties and on the basis of sales achieved by the company till October, 2004 which were in the amount of Rs. 1585 lacs. The proposal was forwarded with approval to the circle office where the note was prepared again by Sh. S.K. Gupta and was later on signed by A7 K.V. Prabhakar, AGM as well as A6 DRP Sunderam, DGM. Accordingly, the sanction was given for enhancement of the credit limit of the company CBI No. 111/16 (Old No. 01/10) Page No. 11 of 113 State through CBI vs. Savita Devi & others from Rs. 95 lacs to Rs. 200 lacs. Interestingly, no further collateral security was obtained at this juncture and no efforts were made to enquire about the steep rising sales of the company. The sanction was conveyed to the branch vide letter dated 03.12.2004 with the condition that before release of the limit, branch to ascertain and inform whether the property at Village Rathi Vas, District Gurgaon can be made available for mortgage to the bank as additional collateral security for the enhancement of the credit limit.
Now the prosecution case:-
"(i) It is stated that the enhancement of the credit limit of the company from Rs. 95 lacs to Rs. 200 lacs in December, 2004 without taking any further collateral security was completely unjustified and appears to have been done by misuse of their official position by the concerned officers of the bank as the same officers had earlier rejected the proposal of the enhancement of the limit from Rs. 95 lacs to Rs. 150 lacs in January, 2004.
(ii) It is further case of prosecution that as per the investigation conducted with regards to the property Flat No. G1 to G5, Halabad Saran Apartments, Gurgaon, it was revealed that accused Ombir Singh had purchased only one flat i.e. Flat No. G5 on the ground floor for Rs. 3 lacs vide sale deed dated 23.06.1999. It was revealed that Mr. Surender Pal CBI No. 111/16 (Old No. 01/10) Page No. 12 of 113 State through CBI vs. Savita Devi & others Garg, Smt. Tej Grover and her husband and Mr. Raj Kumar Gupta were the owners of the Flat No. G1, G2, G3 and G4 respectively. It is thus alleged that fake/forged title documents relating to the Flat No. G1 to G4 were submitted to the bank on behalf of the company M/s Kumbh Steel Pvt. Ltd for seeking enhancement of the credit limit of the company.
(iii) As regards the property bearing No. Plot No. 6 admeasuring 250 sq. yards situated in Khasra No. 116/9, Mahavir Enclave, New Delhi in the name of Raj Kumar, investigation revealed that Laxmi Narayan S/o Chunni Lal was the owner one acre land situated in Khasra No. 116/9, Village Palam and after his death on 12.01.2003, his sons namely Jai Bhagwan and Ranbir became the owners of the said land as per the revenue records. Even though the said land in Khasra No. 116/9 was agricultural as per the revenue record, yet an unauthorized colony had come up on the same known as Mahavir Enclave, Part-III. It is alleged that accused Ombir Singh prepared fake and forged documents i.e. GPA, Agreement to Sell, Affidavit of Laxmi Narayan, money receipt etc., all dated 24.01.1984 to show that he purchased the Plot No. 6 in the said land situated in Khasra No. 116/9 from Laxmi Narayan. He then transferred the ownership of the said plot No. 6 in the name of accused Raj Kumar vide sale deed dated 02.02.2000. Investigations have revealed that accused CBI No. 111/16 (Old No. 01/10) Page No. 13 of 113 State through CBI vs. Savita Devi & others Raj Kumar was not the owner of the plot evaluated by accused S.L. Dhir and he has given a false and fictitious verification report which in fact relates to another plot of land owned by Sukhvinder Kaur and Gulshan Kumar. It is stated that there was no such Plot No. 6 in existence which implies that a false/bogus sale deed was furnished to the bank by accused Raj Kumar on behalf of the company as equitable mortgage to secure the credit limits sanctioned to the company and that accused S.L. Dhir also furnished false as well as fictitious verification report. With regards to the non-
existent plot of land."
15. On the basis of the investigation carried out by the CBI, it was concluded that the various offence under Indian Penal Code and Prevention of Corruption Act, 1988 have been committed by the 12 accused named hereinabove and accordingly the charge-sheet was laid before the concerned Court. It needs note here that the charge-sheet mentions that no incriminating evidence has come-forth against Sh. Mahesh Prakash, Sh. S.K. Gupta, Sh. S.S. Bhatt and Sh. S.K. Wadhwa and therefore, their names were kept in column No. 12 of the charge- sheet. Since, accused Ombir Singh and R.L. Jarwal had already expired, their names were also kept in column No. 12 of the charge-sheet.
16. The sanction under Section 19 of the PC Act, 1988 had been obtained for the prosecution of accused Satish Sikri (A4), who is only public servant in service amongst the accused.
CBI No. 111/16 (Old No. 01/10) Page No. 14 of 113State through CBI vs. Savita Devi & others
17. In terms of the order on charge dated 10.05.2014, charges were framed against each of the accused as under:-
(i) Charges for the offence punishable under Section 120B IPC r/w Section 420/467/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of the PC Act, 1988 were framed against the accused A1 to A11.
(ii) Charge for the offence punishable under Section 420 IPC was framed against the accused A1, A8, A9 and A10.
(iii) Charges for the offence punishable under Section 13 (2) r/w Section 13 (1) (d) of the PC Act, 1988 were framed against the accused A3, A5, A6 and A7.
(iv) Charges for the offence punishable under Section 468/471 IPC r/w Section 468 IPC were framed against the accused A2.
(v) Charges for the offence punishable under Section 468/471 IPC r/w Section 468 IPC and Section 13 (2) r/w Section 13 (1) (d) of the PC Act, 1988 were framed against the accused A4.
(vi) Charges for the offence punishable under Section 420/467/471 IPC r/w Section 468 IPC were CBI No. 111/16 (Old No. 01/10) Page No. 15 of 113 State through CBI vs. Savita Devi & others framed against the accused A11.
18. However, accused Ravinder Vasudev (A12) was discharged.
19. All the accused persons against whom charges were framed (A1 to A11) denied the charges and claimed trial. Accordingly, prosecution i.e. CBI was called upon to lead evidence to substantiate the charges against the accused.
20. Be it noted here that during trial of the case, A3 Ravi Sethi expired and accordingly it was noted in the order-sheet dated 02.08.2016 that proceedings qua this accused stand abated.
21. Admission and denial of documents was also conducted on 05.08.2015 and 07.09.2015 during the course of which certain documents filed by the prosecution alongwith the charge-sheet were admitted by some of the accused. The details of these admitted documents is given hereunder:-
Document No. Admitted by Document is
marked
exhibit as
D-1 Counsel on behalf of A8 Ex. A1
(Original complaint dt. (Om Prakash) and A9
15.01.09 sent to SP/CBI) (Shanti Devi). And accused
No. 10 (Sunil Kumar)
D-2 Counsel on behalf of A8 Ex. A2
(Original FIR dt. 23.01.09) (Om Prakash) and A9
(Shanti Devi). And accused
No. 10 (Sunil Kumar)
CBI No. 111/16 (Old No. 01/10) Page No. 16 of 113
State through CBI vs. Savita Devi & others
D-3 Counsel on behalf of A8 Ex. A3
(Seizure Memo dt. (Om Prakash) and A9
13.04.09) (Shanti Devi). And accused
No. 10 (Sunil Kumar)
D-4 Counsel on behalf of A8 Ex. A4
(Seizure Memo dt. (Om Prakash) and A9
28.04.09) (Shanti Devi). And accused
No. 10 (Sunil Kumar)
D-5 Counsel on behalf of A8 Ex. A5 &
[(Original A/c Opening Form (Om Prakash) and A9
Ex. A5-1
of Sandeep Iron & Steel (Shanti Devi). And accused
(A/c No. 6299 dt. 02.07.98)] No. 10 (Sunil Kumar)
D-9 Counsel on behalf of A8 Ex. A6 &
(Original A/c Opening Form (Om Prakash) and A9
Ex. A6-1
No. 6119 dt. 23.12.97 of (Shanti Devi). And accused
Mahavir Steel Traders) No. 10 (Sunil Kumar) (2 sheets)
D-19 Counsel on behalf of A8 Ex. A7 &
(Original A/c Opening Form (Om Prakash) and A9
Ex. A7-1
A/c No. 6298 dt. 02.07.98 of (Shanti Devi). And accused
Kamal Traders) No. 10 (Sunil Kumar) (2 sheets)
D-81 Counsel on behalf of A8 Ex. A8
(Original letter of letterhead (Om Prakash) and A9 (5 sheets) dt. 15.01.03 of M/s Kumbh (Shanti Devi). And accused Steel Pvt. Ltd. No. 10 (Sunil Kumar) D-82 Counsel on behalf of A8 Ex. A9 (Original letter of letterhead (Om Prakash) and A9 (4 sheets) dt. 06.11.04 of M/s Kumbh (Shanti Devi). And accused Steel Pvt. Ltd.) No. 10 (Sunil Kumar) D-124 Counsel on behalf of A8 Ex. A10 (Specimen signature of Om (Om Prakash) and A9 Prakash Sharma) (Shanti Devi). And accused No. 10 (Sunil Kumar) D-125 Counsel on behalf of A8 Ex. A11 (Specimen signature of (Om Prakash) and A9 (4 sheets) Sunil Kumar) (Shanti Devi). And accused No. 10 (Sunil Kumar) CBI No. 111/16 (Old No. 01/10) Page No. 17 of 113 State through CBI vs. Savita Devi & others D-74 Accused No. 2 (S.L. Dhir) Ex. A12 (Original valuation report of S.L. Dhir dt. 19.10.02 of Plot No. 6, Mahavir Enclave) D-93 Accused No. 2 (S.L. Dhir) Ex. A13 (Original valuation report dt.
30.05.05 of Gurgaon
Property(G-1 to G-5)
D-95 Accused No. 2 (S.L. Dhir) Ex. A14
(Valuation report dt.
30.05.05 of Plot No. 6,
Mahavir Enclave)
D-123 Accused No. 2 (S.L. Dhir) Ex. A15
(Specimen Signatures)
D-75 Accused No. 4 (Satish Ex. A16
(Certificate by Branch Sikri)
Manager, Satish Sikri)
(Check list for scrutiny and
approval by the branches
dated 13.11.2002.
D-76 Accused No. 4 (Satish Ex. A17
(Certified copy of EMT of Sikri)
Plot No. 6, Mahavir
Enclave)
D-76A Accused No. 4 (Satish Ex. A18
(Physical Verification dt. Sikri)
07.02.03)
D-92 Accused No. 3 (Ravi Sethi) Ex. A19
(Page No. 609-612)
(Form dt. 07.03.05 for
Additional Limit of
Enhancement)
D-92 Accused No. 3 (Ravi Sethi) Ex. A20
(Page No. 615)
(Proposal for Enhancement
dt. 08.12.04)
CBI No. 111/16 (Old No. 01/10) Page No. 18 of 113
State through CBI vs. Savita Devi & others
D-92 Accused No. 3 (Ravi Sethi) Ex. A21
(Page No. 649)
(Letter dt. 03.11.04 of
Canara Bank regarding Sub
Enhancement Proposal)
D-92 Accused No. 3 (Ravi Sethi) Ex. A22
(Page No. 659)
(Letter dt. 20.11.04 of
Canara Bank Renewal-cum-
Enhancement Proposal)
D-92 Accused No. 3 (Ravi Sethi) Ex. A23
(Page No. 662-681)
(Proposal for enhancement
from 95 lacs to 300 lacs)
D-92 Accused No. 5 (D.C.
(Page No. 609-612) Narnolia)
(Credit Report for
Enhancement dt. 07.03.05)
D-92 Accused No. 5 (D.C.
(Page No. 615) Narnolia)
[(Proposal for enhancement
(95 lacs to 300 lacs)]
D-92 Accused No. 5 (D.C.
(Page No. 649) Narnolia)
(Letter dt. 03.11.04 of
Canara Bank regarding
enhancement)
D-92 Accused No. 5 (D.C. Ex. A24
(Page No. 650-658) Narnolia)
Resume of account of M/s
Kumbh Steels Pvt. Ltd.
D-92 Accused No. 5 (D.C.
(Page No. 662-672) Narnolia)
[(Proposal dt. 09.11.04 for
enhancement (95 lacs to
300 lacs)]
CBI No. 111/16 (Old No. 01/10) Page No. 19 of 113
State through CBI vs. Savita Devi & others
D-92 Accused No. 5 (D.C.
(Page No. 674-681) Narnolia)
(Analysis of Balance Sheet
of M/s Kumbh Steel Pvt.
Ltd.)
D-92 Accused No. 5 (D.C. Ex. A25
(Page No. 723-728) Narnolia)
(Letter dt. 13.12.03 with
enclosure regarding credit
proposal)
D-77 Accused No. 11 (Raj Ex. A26
(A/c Opening Form of Raj Kumar)
(photo
Kumar)
identified and
signature
denied)
D-63 Accused No. 11 (Raj Ex. A27
(Sale deed of Plot No. 6, Kumar)
(photo
Mahavir Enclave)
identified and
signature
denied)
D-126 Accused No. 11 (Raj Ex. A28
(Specimen signatures) Kumar)
D-139 Specimen Card by A1 A-24
(Specimen Card dt.
08.02.97
D-139 A/c opening form by A1 A-25
(A/c opening form dt.
08.02.97)
D-139 Copy of voter I.D. A1 A-26
(A/c opening form dt.
18.04.95)
D-92 Office Note dated 15/3/05 A-27
(Page 607 & 608 Note for by A6
Adhoc Limit (50 lacs)
CBI No. 111/16 (Old No. 01/10) Page No. 20 of 113
State through CBI vs. Savita Devi & others
D-92 Proposal dated 29/11/04 A-28
(Enhancement Proposal by A6
Page 719)
D-92 Scoring sheet by A7 A-29
(Page 721 Scoring sheet of
M/s Kumbh Steels Pvt. Ltd.)
D-117 Letter dated 11/8/09 with A-30
(Original letter of Canara annexure by A7
Bank dt 11.08.09)
D-79 Office Note by A6
(Office Note of Circle Office
regarding enhancement 95
to 150 lacs) - Page No. 453
D-92 Proposal note by A6 A-20
(Proposal Note dt. 08.12.04
for enhancement (95 lacs to
300 lacs) - Page No. 615
D-92 Office Note dated 27/11/04
(Page 620 Office Note dt. by A6 & A7
27.11.04 regarding
enhancement for 95 to 300
lacs of circle office)
22. The prosecution has examined total 39 witnesses to bring home the guilt of accused. It would be useful to note here briefly the deposition of the prosecution witnesses:
Witnesses examined by the prosecution:-
Sr. No. of Name Gist of his deposition
PW
PW1 Sh. S. K. Specimen signature/handwritings of accused
Gupta Raj Kumar, Savita Devi and Sugam Sharma
were obtained by CBI in his presence and he
proved the sheets containing these specimen
CBI No. 111/16 (Old No. 01/10) Page No. 21 of 113
State through CBI vs. Savita Devi & others
signatures/handwritings as Ex. PW1/A(colly), Ex. PW1/B(Colly) and Ex. PW1/C(Colly). PW2 Sh. Sunil He was posted as Patwari in Tehsil Najafgarh, Kumar Delhi from 2004 to 2007 and in Tehsil Palam from 20.10.2007 to 31.12.2009. He stated that khasra no. 116/9 falls in village Palam and is agricultural land upon which unauthorized colonies known as Mahavir Enclave, Part -II and Part -III have come up. He had prepared the record of rites(khatauni-Form P-6) relating to khasra no. 116/9 and proved it as Ex.
PW2/D. He stated that since the land in said khasra number is not divided in plots in their record, it is not possible to point out plot no. 6 in the same.
PW3 Sh. He remained posted as General Manager, Prakash P. Canara Bank, Delhi Circle from December, Malya 2002 to July, 2005. He identified the signatures of Bank Officers S. K. Gupta, R. K. Arora, B.R.P Sundaram, K. V. Prabhakar Rao in the file pertaining to the Finance given to M/s Kumbh Steel Pvt. Ltd Ex. PW3/A and Ex.
PW3/C(colly) PW4 Sh. According to his deposition, his mother Surjeet Inderjeet Kaur have purchased Plot No. 8 in Khasra No. 116/9, Mahavir Enclave, New Delhi from Smt. Krishnawati in the year, 1992.
PW5 Sh. He was posted as Sr. Manager(Advance) in Narayan Circle Office, Canara Bank, New Delhi from Dutt August, 1999 to August, 2003. He identified Sharma the signatures of Ombir Singh and Om Prakash on Account Opening Form of M/s Kumbh Steels Pvt. Ltd. Ex. PW5/A, on the resolution of the Board of Directors of Kumbh Steel Pvt. Ltd. Ex. PW5/C, on the Certificate of Incorporation of the said company Ex. PW5/B, on the Memorandum and Articles of Association of the said company Ex. PW5/E. He also proved the file relating to M/s Kumbh Steels Pvt. Ltd. maintained in the Circle Office CBI No. 111/16 (Old No. 01/10) Page No. 22 of 113 State through CBI vs. Savita Devi & others during normal course of business as Ex.
PW5/F. He identified signatures of Ombir Singh, Om Prakash, Shanti Devi and Sunil Sharma at various points in the said file. He also identified the signatures of various bank officials on the proposals relating to M/s Kumbh Steels Pvt. Ltd. and the notes prepared in the Circle Office on these proposals.
PW6 Sh. Umesh He was posted as UDC/Record Keeper in the Kumar office of Sub Registrar-IX, District South West from April, 2008 to the year, 2010. He identified the signatures of Sh. Sunil Kumar, the then Sub Registrar-IX on the letter Ex. PW6/A vide which certified copies of sale deed in respect of Property no. 6 in Khasra No. 116/9, Mahavir Enclave, New Delhi was sent to CBI. He also identified the signatures of Sunil Kumar on the said registered Sale deed Ex.
PW6/B and the attested copy of Peshi Register
Ex. PW6/C.
PW7 Sh. He had remained posted as AGM in Canara
Rajender Bank, Circle Office, New Delhi since August,
Kumar 2001 to February, 2004. He identified the Arora signatures of various bank officials on the files maintained in Circle Office pertaining to the financial assistance provided to M/s Kumbh Steels Pvt. Ltd. Ex. PW3/A PW8 Sh. He identified his signatures as well as the Chander thumb impression of his sister Shanti Devi on Ram the GPA Ex. PW8/A, affidavit Ex. PW8/B, receipt Ex. PW8/C and agreement to sell Ex. PW8/D related to a plot of land situated in Mahavir Enclave PW9 Sh. He is the complainant in this case. He was Chaman posted as DGM in the Circle Office, Canara Rawal Bank New Delhi from 2008 to 2011. He had made a complaint to CBI on 15.01.2009 regarding the fraud perpetrated at Uttam Nagar Branch in the account of M/s Kumbh Steel Pvt. Ltd., which he proved as Ex. PW9/A. CBI No. 111/16 (Old No. 01/10) Page No. 23 of 113 State through CBI vs. Savita Devi & others PW 10 Sh. Ajit He was posted as Tehsildar in the office of Sub Singh Registrar, Gurgaon, Haryana during the period 1996 to 1999. He proved settlement copy of sale deed dated 14.06.1999 as Ex. PW10/A which has been executed by Mrs. Tej Grover in favour of Ombir Singh in respect of Flat No. G- 5, Ground Floor, Sharad Apartments, Gurgaon.
PW11 Sh. Dinesh He was posted as Assistant Zonal Inspector in
Kumar MCD, Najafgarh Zone. He identified the
Sharma signatures of Bhagwan Sharma on the house
tax receipt Ex. PW11/A, who was also posted
alongwith him in Najafgarh Zone
PW12 Sh. According to his deposition, he has been
Gulshan residing in Mahavir Enclave, Part -III, Palam for
Kumar the last 20 years and did not know in person by
Makkar name Ombir Singh, Mahesh Kumar and Raj
Kumar. He stated that Radhey Shyam Arora is
brother in law(jeeja) who owns a plot
measuring 100 sq. yards near his house in the
same colony but did not know the plot number.
PW13 Sh. D. S. He was posted as an Officer in Canara Bank,
Uppal Uttam Nagar Branch during the years, 1997 to
2002. However, he has not deposed anything
relating to M/s Kumbh Steel Pvt. Ltd.
PW14 Sh. K. R. He also was posted as an Officer in Canara
Krishna Bank, Uttam Nagar Branch during the years,
Gowda 1996-1999. He proved the signature of Ombir Singh on various cheques issued from the bank accounts in the name of M/s Sandeep Iron Steel, M/s Mahavir Steel Traders, M/s Durga Steel Traders and M/s Kamal Traders.
PW15 Sh. R. P. He too was posted as an Officer in Uttam Malhotra Nagar Branch, Canara Bank Delhi from the year, 1996-2000. He had recommended the opening of Current Accounts in the name of M/s Sandeep Iron Steel, M/s Mahavir Steels, M/s Durga Steel Traders and M/s Kamal Traders in the said branch.CBI No. 111/16 (Old No. 01/10) Page No. 24 of 113
State through CBI vs. Savita Devi & others PW16 Sh. Sithi He was Manager in the Uttam Nagar Branch of Rai Canara Bank during the years, 2000-2001. The account in the name of M/s Kumbh Steel Pvt. Ltd. was opened in the said branch during his tenure. He identified the signature of Ombir Singh and Om Prakash Sharma, the two Directors of the company on the Account Opening Form (Ex. PW5/A) and Specimen signature form Ex. PW16/A. He identified the signature of R. Vasudev, Advocate on the Legal Scrutiny Report in respect of Flat Numbers G-1 to G-5, Sharan Apartments, Gurgaon Ex.
PW16/B and the signatures of Mr. V. P. Aneja on the valuation report Ex. PW16/C. He identified the signature of R. L. Jarwal on check list Ex. PW16/B. He proved the entry made by him in the mortgage register of the bank as Ex. PW16/E. PW17 Sh. Velu He was posted as Officer in Canara Bank, Manohar Uttam Nagar Branch during the year, 1999- 2001. He identified the signatures of Mr. R. L. Aggarwal on various documents, not relating to M/s Kumbh Steel Pvt. Ltd.
PW18 Sh. Tek He was posted as Manager in Canara Bank, Chand Uttam Nagar Branch during the period 2001- 2006. He had allowed the opening of accounts in the name of Raj Kumar and identified his signatures on the account opening form Ex. A-
26. He had also allowed the opening of current accounts in the name of M/s Surya Steel Traders, M/s Karan Steel, M/s Golden Rathi Star Industries and M/s Moskos Steel Pvt. Ltd.
PW19 Sh. Vinay He was posted as Scale-I Officer in Canara Kumar Bank, Uttam Nagar Branch in the year, 2005- Sehgal 2006. His deposition does not appear to be material to the charges framed in this case against the accused.
PW20 Sh. N. K. He was posted as Sr. Manager in the Legal Gupta Section Canara Bank, Circle Office, Delhi. He CBI No. 111/16 (Old No. 01/10) Page No. 25 of 113 State through CBI vs. Savita Devi & others had conducted inquiry regarding the properties mortgaged to secure the loans/credit granted to M/s Kumbh Steel Pvt. Ltd. and M/s Moskos Steel Pvt. Ltd. He proved the reports submitted by him as Ex. PW20/A and Ex. PW20/B. He deposed that the plot no. 6 in khasra no. 116/9, Mahavir Enclave, New Delhi could not be traced.
PW21 Sh. Pawan He was Sr. Manager in Central Bank, Kumar Safdarjang Enclave Branch in the year, 2009. Garg CBI had seized certain documents from him relating to M/s Surya Steel Traders which had a current account in the said branch.
PW22 Sh. Shanti He was posted as Sub Registrar, South West, Lal Kapaseda in the year, 2000. He deposed that the sale deed Ex. A-27 pertaining to Plot No. 6 in Khasra No. 116/9, Mahavir Enclave, New Delhi was registered by him. He identified his signatures at point A on the same.
PW23 Sh. Rakesh He was posted as Chief Manager, State Bank Jindal of India, Najafgarh Road, New Delhi. On the asking of CBI, he had supplied certain record pertaining to M/s Golden Rathi Star Industries Ltd. vide letter dt. 06.05.2009 Ex. PW23/A. PW24 Sh. Ravi According to his deposition, his wife Smt. Tej Jeet Singh Grover had purchased plot measuring 400 sq. yards in Khasra No. 45/2, Village Silokhera, Gurgaon in the year, 1994 vide sale deed dated 07.02.1994. Thereafter, they constructed the four storey building upon the said plot. He deposed that there were five flats bearing numbers G-1 to G-5 on the ground floor. Out of which, Flat No. G-1 was sold to Ombir Singh for a sum of Rs. 3 lacs vide sale deed dt.
14.06.1999 Ex. PW24/A. He further stated that Flat No. G-2 and G-5 were sold to Raj Kumar Ratan and S. P. Garg respectively whereas Flat No G-3 and G-4 were given on Power of Attorney to Neeraj Dixit and Harmeet Singh.
He reiterated that only one Flat i.e Flat No. G-1 CBI No. 111/16 (Old No. 01/10) Page No. 26 of 113 State through CBI vs. Savita Devi & others was sold to Ombir Singh, however, he also clarified that Flat No. G-5 was sold to Ombir Singh and not Flat No. G-1.
PW25 Sh. S. K. He was approved valuer on the panel of Verma Canara Bank in the year, 2006. He had submitted valuation reports Ex. PW25/A and Ex. PW25/B respectively with regards to the Flat Numbers G-1 to G-5, Saran Apartments, Gurgaon and Plot No. 6, Mahavir Enclave, New Delhi.
PW26 Sh. Suresh He was the driver of deceased Ombir Singh.
Kumar As per his deposition, Ombir Singh had opened a bank account in the name of M/s Surya Steel of which he was shown as proprietor but Ombir Singh had kept the blank signed cheque book of his account with himself.
PW27 Sh. He was posted as Tehsildar/Sub Registrar at Rajender Gurgaon, Haryana in the year, 2009. He had Singh supplied the attested copy of the sale deed Kadyan pertaining to Flat No. G-1, Saran Apartments Gurgaon to CBI vide letter Ex. PW27/A. PW28 Sh. Ashok He was dealing in documentation and deposed Tyagi that Ombir had got executed several sale deeds through him. He deposed that the sale deed Ex. A-27 was prepared by him at the instance of both the vendor Ombir Singh and Vendee Raj Kumar who had also signed the same in his presence. He identified accused Raj Kumar in Court.
PW29 Sh. Rajeev He was posted as Deputy Excise and Taxation Chaudhary Commissioner, Gurgaon. He had supplied the photocopy of Sales Tax Return of M/s Kumbh Steels Pvt Ltd. M/s Maharaja Ispat and M/s Golden Rathi Star Industries Ltd. to CBI vide letter dt. 05.11.2009 Ex. PW29/A. PW30 Sh. Sugam According to his deposition, Ombir's brother Sharma Mahesh Kumar is his brother in law(jeeja) and accused Raj Kumar is the brother in law(saala) of Ombir. His further deposition is not material at all as he turned hostile.
CBI No. 111/16 (Old No. 01/10) Page No. 27 of 113State through CBI vs. Savita Devi & others PW31 Sh. Balbir He was posted as Deputy General Manager, Chand Recovery Wing, Canara Bank, Circle Office, New Delhi. He has supplied his documentation mannual containing instructions regarding mortgage transaction procedure(Ex. PW31/B), copies of Appendices-2, 3 & 35 Ex. PW31/C, copy of circular dated 15.03.2001 regarding equitable mortgage transaction(Ex. PW31/D) and copy of circular dt. 16.07.2003(Ex.
PW31/E) to CBI vide letter dt. 13.02.2009(Ex.
PW31/A) PW32 Sh. He was posted as Tehsildar Palam in the year, Surender 2009. He had supplied copy of khatoni Singh pertaining to land bearing khasra no. 116/9(4-
16), Village Palam to CBI vide letter dt.
22.04.2009 Ex. PW2/A. PW33 Sh. Neeru She was posted as Assistant Manager, D Samson Standard Chartered Bank, Express Building Bahadur Shah Zafar Marg, New Delhi. She had supplied certain documents relating to bank account in the name of M/s Karan Steel to CBI vide letter dt. 07.08.2009 Ex. PW33/A. PW34 Sh. He was posted as Manager, Canara Bank, Arindam Circle Office, New Delhi in the year, 2009. The Chaterjee IO of this case had seized certain files from him vide seizure memo Ex PW34/A. The files are mentioned as Sr. No. 1 to 5 in the said serial number.
PW35 Sh. Arun He was posted as General Manager, Canara Kumar Bank, Head Office,Banglore in the year, 2009. Nahar Vide his order dt. 23.12.2009 Ex. PW35/A, he had accorded sanction for prosecution of accused Satish Sikri in this case.
PW36 Sh. Anoop He was working as Assistant Manager, Kundu Standard Chartered Bank, Bahadurshah Zafar Marg, New Delhi and identified the signature of his collegue Amit Kurichh on the letter dt.
12.05.2009 Ex. PW36/A vide which certain information was supplied to the CBI.
CBI No. 111/16 (Old No. 01/10) Page No. 28 of 113State through CBI vs. Savita Devi & others PW37 Sh. T. Joshi He is the Asst. Director and Scientist-C in the office of CFSL, Chandigarh. The documents sent by CBI to CFSL vide letter dt. 09.09.2009 Ex. PW37/A were examined by him. He has given his report Ex. PW37/B and the reasons for his conclusion Ex. PW37/C. PW38 Sh. Sunit He was posted as Sr. Manager, Canara Bank, Prakash Uttam Nagar Branch in the year, 2009. He had supplied the statement of accounts of M/s Kumbh Steels Pvt Ltd. alongwith cheques issued from the said account and also the credit vouchers to CBI which were seized by the IO vide seizure memo dt. 23.02.2009 Mark PW38/1. He proved these cheques as Ex.
PW38/A(Colly) and the statement of account as PW38/B. He had also supplied 68 cheques alongwith 10 debit vouchers to CBI which were seized vide seizure memo dt. 25.02.2009 Ex.
PW38/D. Some more documents were seized by CBI from him vide seizure memo dt.
13.03.2009 Ex. PW38/F. PW39 Sh. Shyam He was the Investigating Officer in this case Lal Garg and has mentioned in detail the steps taken by him in the investigation done by him in this case.
Statement of accused under Section 313 Cr. P.C:-
23. All incriminating evidence was put to the accused in their statement under Section 313 Cr. P.C which was denied by them. All of them claimed false implication.
24. Accused no. 1 Smt. Savita Devi denied having any knowledge about the affairs of the company M/s Kumbh Steels Pvt. Ltd or the transactions between the company and the bank. She admitted that CBI No. 111/16 (Old No. 01/10) Page No. 29 of 113 State through CBI vs. Savita Devi & others certain cheques were issued in her name by the accused Raj Kumar and accused Ombir Singh but stated that her bank account was being operated by her husband, Ombir Singh and she was not having any control over her account. She stated that her cheque book and other documents relating to her bank account used to be in custody of her late husband Ombir Singh and she never issued any cheque under her signature to anyone. She also stated that she was not having control of any company at any point of time and never applied for bank loan or credit limit on behalf of any company at any point of time. She claims to be innocent.
25. According to accused no. 2 Sh. S. L. Dhir, he had given proper valuation report with regards to both the properties after inspecting them physically. He stated that both the properties in question was shown to him by Ombir Singh and, therefore, no illegality or irregularity can be found in its valuation reports.
26. Accused no. 4 Sh. Satish Sikri stated that all the proposals on behalf of company for enhancements of its credit limits were dealt with in the routine course and as per banking resolutions. He stated that the account of M/s Kumbh Steels Pvt. Ltd. was opened in the branch prior to his joining the branch and the company was already enjoying credit facilities. According to him, he was not involved in acceptance of Flat Numbers G-1 to G-5, Saran Apartments, Gurgaon as equitable mortgage for the reason that same was done before his joining branch and it was an existing security. With regards to the EMT of Plot No. 6 in Khasra No. 116/9, Mahavir Enclave, Uttam Nagar, New Delhi, he stated that the procedure to be followed before accepting any property as security by CBI No. 111/16 (Old No. 01/10) Page No. 30 of 113 State through CBI vs. Savita Devi & others way of EMT was followed in this case also. He pointed out that LSR was obtained from Panel Advocate who had certified clean marketable title of the owner and valuation report was obtained from panel valuer wherein no adverse observation was made. He also stated that he had conducted physical visit of the said property alongwith another bank official Mahesh Prakash and the prosecution did not examine this official deliberately in this case in order to suppress the evidence favouring him.
27. According to accused no. 5 Sh. D. C Narnalia, he was a low grade officer in the bank and had no power to check any credit proposal which were beyond power of the branch. He stated that he was working under the direct supervision of Branch Incharge i.e Chief Manager and had no authority to permit any temporary overdraft facilities in the credit accounts of any borrower. He further stated that proposal for enhancement of credit limit of the company M/s Kumbh Steels Pvt. Ltd. from Rs. 95 lacs to 200 lacs was recommended under the pressure of Sh. Anoop Garg, one of the Director of the bank. He denied having done anything illegal or against the banking regulations and thus, claims innocence.
28. Accused no. 6 Sh. DRP Sunderam and accused no. 7 Sh. K. V. Parbhakar stated that all the approvals were made by them after following the banking norms and without transgressing any banking guidelines. According to them, the enhancement of limits to the company was based on MPBF, audited financial statements, projected sales as per banking guidelines and the advance was fully secured by prime security of stock in trade. They stated that collateral security was not mandatory as per banking guidelines. They claimed to be falsely implicated in this case.CBI No. 111/16 (Old No. 01/10) Page No. 31 of 113
State through CBI vs. Savita Devi & others
29. According to accused no. 8 Sh. Om Prakash Sharma and accused no. 9 Smt. Shanti Devi, who are the parents of the accused Ombir Singh (since deceased), they have been taken for ride by their deceased son who obtained their signatures saying that he would deposit routine maintenance money in their bank accounts as she is unable to visit them regularly due to his pre-occupation. They claimed to be illiterate and totally ignorant about what a company is and what is the role of a Director in a company. They denied having opened any bank account in their name or having applied or obtained any banking loan in their name or in the name of any company. They denied having signed any cheque or having transferred any money to anyone from their bank account. They stated that their bank accounts were neither opened nor operated with their knowledge and consent. They stated that their signatures have been misused by their son Ombir Singh and they are totally innocent.
30. Accused no. 10 Sh. Sunil Kumar who is the brother of late Sh. Ombir Singh also claimed to have been cheated by his late brother. He stated that deceased Ombir Singh has obtained his signature on certain papers with the assurance that he would open a bank account in which money would be transferred for his day to day expenses. He did not doubt the intention of Ombir Singh at that time as he was unmarried and unemployed and the parents were also residing with him. He denied having any concern with the company M/s Kumbh Steels Pvt. Ltd or any other firm. According to him, he did not get any benefit at all from any loan sanctioned by the bank and he had not withdrawn even a penny from the said loan amount. He too claimed that his signatures have been misused by Late Sh. Ombir Singh.
CBI No. 111/16 (Old No. 01/10) Page No. 32 of 113State through CBI vs. Savita Devi & others
31. Accused no. 11 Sh. Raj Kumar denied having any knowledge about the incorporation of any company namely M/s Kumbh Steels Pvt. Ltd or its directors. He claimed that Ombir Singh may have got some documents signed by him in good faith and further stated that Ombir Singh has forged the signature on documents and cheques on a number of occasions. He admitted his ownership with regards to Plot No. 6 in Khasra No. 116/9, Mahavir Enaclave, Uttam Nagar, New Delhi having purchased the same from Ombir Singh. He admitted that he is the proprietor of M/s Karan Steels Ltd. He stated that he was a mere employee of Ombir Singh who was his brother in law and did not know as to how he was made Director in the said company. According to him, he was made Director of the company without his consent and knowledge. He claimed to have been falsely implicated in this case on the basis of forged and fabricated documents and signatures.
Defence Evidence:-
32. None of the accused has lead any evidence in defence.
Arguments:-
33. Final arguments were heard in detail from both the sides on several dates of hearing. Both the Ld. Public Prosecutor and Ld. Defence counsels took me through the entire voluminous, oral as well as documentary evidence on record painstakingly.
CBI No. 111/16 (Old No. 01/10) Page No. 33 of 113State through CBI vs. Savita Devi & others Submissions of Ld. Public Prosecutor:-
34. According to Ld. Public Prosecutor, the evidence on record established guilt of all accused beyond reasonable doubt. He argued that no parcel of land available in Khasra No. 116/9, Palam Village had been sold to Ombir Singh and, therefore, he had no right or title to execute any sale deed in respect of the same in favour of accused no. 11 Sh. Raj Kumar. He argued that evidence lead by the prosecution clearly shows that no said Plot No. 6 was in existence at all and the sale documents regarding an imaginary Plot No. 6 were fabricated by Ombir Singh in his favour. According to Ld. Public Prosecutor, accused no. 11 Sh. Raj Kumar was a party to the forgery/fabrication of documents in this regard and the sale deed executed later on by Sh. Ombir Singh in his favour was collusive one just in order to cheat and defraud the bank. He submitted that it is manifest from the evidence on record that Raj Kumar had knowledge that the said Plot No. 6 does not exist at all and he furnished the sale deed in respect of the same as a security to the bank pursuant to a well hatched conspiracy to defraud the bank by obtaining enhancement of credit limit from Rs. 95 lacs to Rs. 200 Lacs. He further stated that the testimony of various bank officials I.e PW3, PW5, PW7, PW9, PW13, PW14, PW15, PW16, PW20 and PW38 shows that the accused bank officials i.e accused no. 4, accused no. 5, accused no. 6 and accused no. 7 did not stick to the guidelines issued by the bank from time to time and they went out of their way to permit enhancement of credit limit to the company M/s Kumbh Steels Pvt Ltd and, therefore, the conduct clearly shows that they would not have done so unless they have been bribed. He pointed out that when the circle office had declined to enhance the credit limit of the company from 95 lacs to 150 lacs in CBI No. 111/16 (Old No. 01/10) Page No. 34 of 113 State through CBI vs. Savita Devi & others November, 2003, there was no reason or occasion for the branch to recommend the enhancement of the credit limit from Rs. 95 lacs to Rs. 200 lacs within just one year i.e in November, 2009 and for the circle office to approve the enhancement of the said limit without asking for any additional collateral security. He argued that this could not have been done unless the accused bank officials who had recommended enhancement of limit and who had approved the same in the circle office were acting in connivance with the Directors of the company.
35. Ld. Public Prosecutor submitted that accused Om Prakash Sharma, Smt. Shanti Devi and Sh. Sunil Kumar were clearly in connivance with Late Sh. Ombir Singh as they did not raise any objection regarding his acts during his lifetime for the reason that they have been getting financial and other benefits from him and, therefore, they cannot claim to have been duped or fooled by him. As regards the accused Sh. S. L. Dhir , he argued that since it is manifest from the evidence lead by prosecution with Plot No. 6 in Khasra No. 116/9 was not in existence at all, he had given his false and fictitious valuation report regarding the said imaginary plot, which he would not have done unless bribed by and on behalf of the company M/s Kumbh Steels Pvt. Ltd. who was the ultimate beneficiary. He also pointed out that the contention of accused Satish Sikri that he had conducted physical inspection of the aforesaid plot proves to be absolutely false for the reason that there is no such plot in question. He argued that all the accused are liable to be convicted.
Submissions of the Ld. Counsel for A1 Savita Devi:-
36. Ld. Counsel submitted that Savita Devi was not a director of M/s CBI No. 111/16 (Old No. 01/10) Page No. 35 of 113 State through CBI vs. Savita Devi & others Kumbh Steel Pvt. Ltd when it was incorporated and when a current account in its name was opened in the Canara Bank, Uttam Nagar Branch. He argued that even though she was inducted into the board of directors of the company w.e.f. 27.10.2004, yet she was only a household lady and was not involved in any transactions between the company the bank at all. He further submitted that she had not signed any application/request for enhancement of the credit limits to the company and therefore, cannot be held liable for any illegality or irregularity in the same, if any. He argued that she had not signed any cheques stated to be issued from the bank account of the company. Ld. Counsel pointed out to various cheques on record which have been issued from the bank account of M/s Kumbh Steel Pvt. Ltd to show that all of them bear the signature of Late Ombir Singh. He pointed out to the Memorandum of Understanding and Articles of Association of the company, which have been submitted to the bank, to show that these also bear the signatures of only Late Ombir Singh. He argued that even otherwise also Savita Devi was in the picture only at the time of enhancement of the credit limit of the company from Rs. 95 lacs to Rs. 200 lacs in December, 2004 and admittedly, no fresh collateral security has been furnished by the company at that time. It is his submissions that all the three properties had already been offered as collateral security to the bank on behalf of the company before the aforesaid enhancement and therefore, she cannot be held liable for any illegality, if any, in the same. It is vehemently agitated by the Ld. Counsel that this accused is totally innocent and has been falsely arraigned in this case only for the reason that she was one of the directors of the company M/s Kumbh Steel Pvt. Ltd. He pleaded for acquittal of the accused.
CBI No. 111/16 (Old No. 01/10) Page No. 36 of 113State through CBI vs. Savita Devi & others Submissions on behalf of A2 S.L. Dhir:-
37. It was argued by the Ld. Counsel for accused S.L. Dhir that there is no evidence on record suggesting complicity of this accused in any of the offence for which he has been charged. He referred to the cross- examination of IO PW39 where the IO has admitted that there was no complaint regarding the verification report submitted by A2 S.L. Dhir and no evidence had surfaced during the course of investigation to show that S.L. Dhir had charged some extra amount from the borrower for submitting the said report. Ld. Counsel argued that when the IO himself is admitting that no incriminating evidence had surfaced against the accused S.L. Dhir during the course of investigation, it is not discernible as to how he was arraigned as an accused in this case. He urged this Court to acquit this accused.
Submissions on behalf A4 Satish Sikri:-
38. On behalf of A4 Satish Sikri, it has been argued by the Ld. Counsel that the account of company M/s Kumbh Steel Pvt. Ltd was opened in Canara Bank, Uttam Nagar Branch, New Delhi on 17.03.2001 i.e. much before this accused joined the said branch on 28.08.2002. He pointed out that the initial proposal or sanction of credit limit of Rs. 50 lacs to the company was considered by the then Sr. Manager Mr. R.L. Jarwal in July, 2001 and was approved by the circle office. He further submitted that the enhancement of the credit limit from Rs. 50 lacs to Rs. 80 lacs was also done during the tenure of Mr. R.L. Jarwal. He further pointing out that there is only one instance of enhancement of the credit limit of the company from Rs. 80 lacs to Rs. 95 lacs in the month of October, 2002, CBI No. 111/16 (Old No. 01/10) Page No. 37 of 113 State through CBI vs. Savita Devi & others which was proposed and approved by this accused Satish Sikri. However, the Ld. Cousnel argued that A4 Satish Sikri had acted as per the guidelines and the procedure for enhancement of the credit limit and there is no evidence on record to show that he had violated any such guidelines. The Ld. Counsel placed reliance upon the instructions manual with regards to the mortgaged transactions procedure Ex.PW31/B (colly.), particularly Clause 2.1.10 and 2.4.6 which are reproduced as under:
Clause 2.1.10 : If the LSR and security by the branch discloses a clear and marketable title and mortgageability and if the borrower is able to produce all the documents referred to in the LSR, the proposal should be processed further and placed before the appropriate authority for sanction."
Clause 2.4.6 : The branch can approve the LSR only if the LSR conveys a clear and marketable title.........."
39. Ld. Counsel submitted that the title deeds in respect of the Flat No. G1 to G5, Saran Apartments, Gurgaon had already been scrutinized, verified and accepted by the bank before this accused had taken over the charge of the branch and therefore, there was no reason or occasion for him to doubt their genuineness. With regards to the title deeds in respect of Plot No. 6, Mahavir Enclave, New Delhi, the Ld. Counsel submitted that these were got verified from the panel advocate Sh. R. Vasudev, which is evidence from the Legal Scrutiny Report (Ex. PW38/D1) of the said advocate and thereafter the property was got valued from the panel CBI No. 111/16 (Old No. 01/10) Page No. 38 of 113 State through CBI vs. Savita Devi & others valuer S.L. Dhir. He further submitted that upon receipt of the Legal Scrutiny Report and valuation report, A4 alongwith the another officer, Sh. Mahesh Prakash, of the bank, who was working in advance section and was handling proposal for enhancement of the limit to the company, had conducted the physical inspection of the said plot and thereafter, forwarded the proposal for enhancement of the credit limit to the circle office. He argued that the said officer Mr. Mahesh Prakash has not been deliberately examined by the prosecution in this case in order to withhold the evidence which was in favour of the accused Satish Sikri. Ld. Counsel pleaded for acquittal of this accused.
Submission on behalf of A5 D.C. Narnolia:-
40. This accused has argued himself and had not engaged any counsel. He has also filed written submissions. It is contended by him that he was never posted as Branch Manager of Canara Bank, Uttam Nagar Branch but was only posted as Credit Manager in the said branch from 04.08.2003 to 02.09.2006. He states that being the low level officer in the bank, he was neither recommending or sanctioning authority for the loans to be disbursed to the bank's customers including for M/s Kumbh Steel Pvt. Ltd. He further submits that he was duty bound to sign the loan proposals and the overdraft proposals as an obedient junior officers working under the directions, supervision and control of his immediate superior i.e. Chief Manager of the Branch. He placed reliance upon the Resolution No. 323 of Canara Bank Officers Employees Conduct Regulations, 1976 which provides as under :
CBI No. 111/16 (Old No. 01/10) Page No. 39 of 113State through CBI vs. Savita Devi & others "No officer/employee shall, in the performance of his official duty or in the exercise of powers conferred upon him, act otherwise, than in his best judgment except when he is acting under the direction of his officer superior."
41. It is his submissions that since he was acting under the supervision and directions of his immediate superiors i.e. Chief Manager of the Branch, he was not required and expected to use his own judgment. He further states that the proposal for enhancement of the credit limit of the company M/s Kumbh Steel Pvt. Ltd from Rs. 95 lacs to Rs. 150 lacs was prepared by Chief Manager Sh. L. Raju of the Branch and he only countersigned the same, being bound down to do so in obedience of his superior. He further pointed out that the subsequent proposals were also forwarded by the branch in charge Ravi Sethi to the circle office and he only countersigned those proposals. According to him, the decision in the branch were not taken at lower level at which he was working and therefore, he had no role at all in approval or rejection of the proposals. He argued that there is no evidence on record to show that he had flouted any guidelines of the bank or that he had obtained any pecuniary benefit or valuable thing either from the co-accused or from any other person on their behalf. He submitted that no criminality can be attached to an of his acts while working as Credit Manager and therefore, he is liable to be acquitted.
CBI No. 111/16 (Old No. 01/10) Page No. 40 of 113State through CBI vs. Savita Devi & others Submissions on behalf of A6 DRP Sunderam and A7 K.V. Prabhakar:-
42. On behalf of these two accused, it was submitted by their counsel that they were posted in the circle of the bank and had nothing to do with the acts performed at the branch level. He pointed out that A6 joined circle office as Deputy Geneal Manager on 23.12.2003 and remained their till 15.07.2006 whereas A7 joined circle office as Assistant General Manager on 24.05.2004 and remained their till 27.12.2004. Ld. Counsel referred to the cross-examination of PW9 to canvass that circle office had no role in verification of the immovable properties offered as collateral security by the borrower. He also pointed out that the company M/s Kumbh Steel Pvt. Ltd had already been sanctioned limits twice before these two accused joined circle office. It was argued by the Ld. Counsel that the evidence on record would show that A6 was involved only in proposal for enhancement of credit limit of the company M/s Kumbh Steel Pvt. Ltd from Rs. 95 lacs to Rs. 150 lacs in December, 2003 but the enhancement of the limit had been declined at that time as proposal was not found to be sound. He further argued that these two accused were involved in the approval of the enhancement of credit limit of the company from Rs. 95 lacs to Rs. 200 lacs in December, 2004. No additional collateral security was obtained from the borrower at this juncture and the enhancement of the limit was approved after taking into account various banking parameters of the company such as Net Working Capital (NWC), Projected Balance Sheet (PBS) and the same was according to the Maximum Permissible Banking Finance (MPBF). He submitted that there was nothing wrong in enhancement of the limit of the company even though the same had been rejected earlier by this circle CBI No. 111/16 (Old No. 01/10) Page No. 41 of 113 State through CBI vs. Savita Devi & others office in December, 2003. In this regard, the Ld. Counsel referred to cross-examination of PW3, who has deposed that in case proposal of the enhancement of the credit limit has been rejected earlier, it can be considered again if the party is fulfilling the eligibility norms for enhancement. Ld. Counsel also referred to the cross-examination o PW7, who handled the account of the company M/s Kumbh Steel Pvt. Ltd while posted as Assistant General Manager in the circle office and who had deposed that no irregularities whatsoever was found by him on the conduct of the account in question at the level of the branch as well as circle office level and he did not find any deviation from banking norms and the policies of the bank.
43. With regards to the sanction of the adhoc limit of Rs. 50 lacs to the company M/s Kumbh Steel Pvt. Ltd in March, 2005, it was submited by the Ld. Counsel that the proposal received from the branch in this regard was vetted by Sh. S.K. Gupta (Seniro Manager) who after preparing the note of recommendation, placed the same before AGM Sh. S.S. Bhatt who also approved the same. It is thereafter that A6 finally approved the note with the rider that the branch shall discuss and ensure additional security from the borrower. He argued that the sanction of the said adhoc limit was as per the banking guidelines and no irregularities can be found in the same. Lastly, the Ld. Counsel referred to the deposition of the IO PW39 who has admitted that the circle office had no role in the mortgage of the properties and nothing came out during the course of investigating that these two accused had met the borrowers at any point of time or the borrowers had ever influenced them at any point of time. He argued that no criminality can be attached to the acts of these two accused and the have been framed falsely and are liable to be acquitted.
CBI No. 111/16 (Old No. 01/10) Page No. 42 of 113State through CBI vs. Savita Devi & others Submissions on behalf of A8 Om Prakash Sharma, A9 Shanti Devi and A10 Sunil Kumar:-
44. A8 and A9 are the parents of Late Ombir Singh and A10 is his brother. It was submitted by their counsel that these three accused were themselves not aware at any point of time that they have been inducted as directors of the company M/s Kumbh Steel Pvt. Ltd and there is no evidence on record to show that they had played any active role in the affairs of the company. He argued that they have made directors by Late Ombir Singh, being his close relatives, in order to facilitate the working of the company which he had himself floated and incorporated. He argued that the prosecution has not led any evidence to show that A9 Shanti Devi had visited the bank at any point of time or had signed any application for loan/enhancement of the credit limit on behalf of the company or had issued any cheque from the bank account of the company or had withdrawn any money from the bank account of the company. He also pointed out that there is no such evidence on record against A10 Sunil Kumar. With regards to A8 Om Prakash Sharma, Ld. Counsel further submitted that though it is the case of prosecution that he had visited the bank alongwith Ombir Singh at the time of opening of the account of the company M/s Kumbh Steel Pvt. Ltd on 17.03.2001, yet PW16 has proved the specimen signatures of only Ombir Singh and not of Om Prakash Sharma which is indicative of the fact that t he account was to be operated only by Ombir Singh. He referred to the deposition of PW14 who has testified that the cheques issued from the bank account of the company of the firm floated by Ombir Singh bore his signatures only. Ld. Counsel argued that Late Ombir Singh made his parents and hir brother tools for his illegal activities and never discussed anything with CBI No. 111/16 (Old No. 01/10) Page No. 43 of 113 State through CBI vs. Savita Devi & others them after inducting them as directors of the company. According to Ld. Counsel, it was One Man Show of Ombir Singh and therefore, these three accused cannot be held liable for any criminal acts done by him. The Ld. Counsel pointed out that Ombir Singh had not even spared his driver Suresh Kumar (PW26) and had opened an account in his name also showing him as proprietor a firm namely M/s Surya Steel. He referred to the deposition of PW26 who has stated that Ombir Singh had kept cheque books of the said account with himself after getting the same signed in blank from him and the account was being operated by Ombir Singh alone. Ld. Counsel also referred to the testimony of PW30 to show that Ombir Singh had got some papers signed from him also on the pretext of purchasing a Car without disclosing to this witness, the nature of the those papers. It was thus submitted by the Ld. Counsel that the illegal acts or the criminal offence, if any, were committed by Ombir Singh alone without any aid or assistance from these three accused and therefore, he alone should held liable for those acts/offences. Ld. Counsel submitted that A8 and A9, who were of very old age and suffering from age related ailments and A10 who was unemployed youth taking care of his parents, have suffered the rigors of trial in this case only for the reason that they were the parents and the brother respectively of Late Ombir Singh.
Submissions on behalf of A11 Raj Kumar:-
45. Ld. Counsel appearing for A11 Raj Kumar submitted that he was never on the board of directors of the company M/s Kumbh Steel Pvt. Ltd and is stated to have stood guarantor for the said company and had also offered his immovable property bearing Plot No. 6 in Khasra No. 116/9, CBI No. 111/16 (Old No. 01/10) Page No. 44 of 113 State through CBI vs. Savita Devi & others Mahavir Enclave, New Delhi as equitable mortgaged to secure the enhancement of the credit limit of the company from Rs. 80 lacs to Rs. 95 lacs in November, 2002 and from Rs. 95 lacs to Rs. 150 lacs in December, 2003. He argued that there is no evidence on record to show that this accused had offered his aforesaid plot of land as equitable mortgaged on behalf of the said company. He pointed out that the letter dated 11.12.2002 upon which reliance is placed by CBI in this regard has not been proved by any witness of the prosecution and is unexhibited documents, which cannot be read in evidence. He further submitted that accused Raj Kumar had offered the said plot of land as security to the bank on behalf of another company i.e. M/s Moskos Steel Pvt. Ltd and the aforesaid letter has been fabricated/interpolated to show that the said plot of land has been offered as security on behalf of M/s Kumbh Steel Pvt. Ltd also. The Ld. Counsel further argued that even otherwise also, there is no evidence on record to show that Ombir Singh was not owner of the said Plot No. 6 or that he had not purchased the same from the previous land owner Sh. Laxmi Narayan.
46. With regards to the charge of conspiracy the title documents in respect of the aforesaid Plot No. 6, it is submitted by the Ld. Counsel that these title documents in favour of Late Sh. Ombir Singh have been executed in the year 1984 and as per the case of the prosecution itself, sale deed regarding the said plot of land executed by Late Sh. Ombir Singh in favour of accused Raj Kumar is dated 02.02.2000. He argued that even if it assumed that the documents in favour of Late Sh. Ombir Singh are forged documents, accused Raj Kumar cannot be stated to be a party to the said forgery for the reason that he was a minor in the year 1984. He submitted that even otherwise also there is no evidence on CBI No. 111/16 (Old No. 01/10) Page No. 45 of 113 State through CBI vs. Savita Devi & others record to suggest that accused Raj Kumar has played any role in the alleged forgery of these documents and the prosecution has failed to prove that these documents do not bear the genuine signature of Laxmi Narayan or that the signature of the vendor appearing thereon have been forged by Late Sh. Ombir Singh and accused Raj Kumar. He submitted that there is absolutely no evidence on record to hold that these are forged documents.
47. Ld. Counsel further argued that the evidence led by the prosecution merely shows that the said Plot No. 6 in Khasra No. 116/9 Village Palam could not be traced when the bank officials have reached the spot to locate it. He argued that plot was very much in existence when it was purchased by the accused Raj Kumar from his brother-in-law Late Sh. Ombir Singh but later on it could not be traced for the reason that unauthorized colony come up in the area with new regular pattern of plot numbers or house numbers. Ld. Counsel placed heavy reliance upon the valuation report Ex.A12 submitted by the accused S.L. Dhir in respect of the said Plot NO. 6 to canvass that it was very much in existence at the visit of this witness as otherwise he would not have been in a position to prepare the said valuation report. He also laid emphasis on the testimony of PW2 (Halka Patwari of the area in question), who had deposed that it is not possible as per record maintained in their office to point out Plot No. 6 in Khasra No. 116/9 as new numbers have been given by the private coloniser who has developed the colony on the agricultural land unauthorizedly. He pointed out that the existence of the said plot of land in question was confirmed by the then Manager of Uttam Nagar Branch of Canara Bank i.e. accused Satish Sikri in his letter Ex.PW07.02.2003 (Ex.A18) addressed to the circle office.
CBI No. 111/16 (Old No. 01/10) Page No. 46 of 113State through CBI vs. Savita Devi & others
48. It was thus argued by the Ld. Counsel that no illegality can be imputed to the accused Raj Kumar and he is liable to be acquitted.
Common submissions made on behalf of A4 Satish Sikri and A11 Raj Kumar:-
49. Referring to the provision of Article 20 (2) of the Constitution of India and Section 300 of the Code of Criminal Procedure, it was argued on behalf of these two accused that once they have already been held guilty having conspired with Late Sh. Ombir Singh in forging the title documents relating to the above mentioned Plot No. 6 in question in the case bearing RC No. 72/2009/EOU-III/CBI/New Delhi, titled CBI v. Raj Kumar etc. vide judgment dated 30.01.2018 and have been sentenced to various periods of rigorous imprisonment alongwith fine vide order on the point of sentence dated 31.01.2018 passed in that case, they cannot be again held guilty for the same offence in this case as it would tantamount to double jeopardy for them which is prohibited by the above referred provisions of law.
50. It needs note here that accused Satish Sikri and Raj Kumar were also accused alongwith several other persons including A3 Ravi Sethi (since expired), A5 D.C. Narnolia, A6 DRP Sunderam and A7 K.V. Prabhakar Rao, in above mentioned case bearing RC No. 72/2009/EOU- III/CBI/New Delhi, titled CBI v. Raj Kumar etc., which was tried by this very Court. In that case also, the title deeds relating to the same Plot No. 6 in Khasra No. 116/9, Mahavir Enclave, New Delhi had been furnished as collateral security in respect of the credit limits granted by Uttam Nagar Branch of the Canara Bank to another company M/s Moskos Steel CBI No. 111/16 (Old No. 01/10) Page No. 47 of 113 State through CBI vs. Savita Devi & others Pvt. Ltd floated by Late Sh. Ombir Singh. Vide judgement dated 30.01.2018 passed by this Court in that case, it was held that the said Plot No. 6 did not exist and the title deeds of the same alleged to have been executed by the Laxmi Narayan in favour of Late Sh. Ombir Singh are forged documents and accused Raj Kumar was partner in the conspiracy with Late Sh. Ombir Singh. It was further held that accused Satish Sikri and Raj Kumar were also part of conspiracy in use of forged title document for obtaining credit facilities for the company M/s Moskos Steel Pvt. Ltd. Accordingly, accused Raj Kumar and accused Satish Sikri alongwith some other accused were convicted and later on sentenced vide order on the point of sentence dated 31.01.2018.
51. Ld. Public Prosecutor submitted that the conspiracies alleged in the instant case and in the previous decided case bearing RC No. 72/2009/EOU-III/CBI/New Delhi, titled CBI v. Raj Kumar etc. related to the different bank accounts in the name of different entities and for different credit facilities and therefore, the bar under Article 20 (2) of the Constitution of India and under Section 300 Cr. P.S does not apply.
Court discussions on the evidence led by the parties and submissions made on their behalf:-
52. I have considered the submissions made on behalf of the CBI as well as the accused and have also perused the entire material on record.
53. In view of the submissions made on behalf of accused noted hereinabove and upon perusal of the documents admitted during the course of the admission denial as well as the documents proved by CBI No. 111/16 (Old No. 01/10) Page No. 48 of 113 State through CBI vs. Savita Devi & others various prosecution witnesses, following facts emerge undisputed between the parties:-
(i) Current A/c No. 6998 was opened on 09.03.2001 in Canara Bank, Uttam Nagar Branch in the name of M/s Kumbh Steel Pvt. Ltd with Late Sh. Ombir Singh, accused Om Prakash Sharma and accused Shanti Devi as its directors. The account had been opened during the tenure of PW16 as the Manager of the Branch. [See Account Opening Form Ex.PW5/A (colly.)]
(ii) In the month of July, 2001, the company applied to the bank for OCC limits of Rs. 60 lacs. The documents Ex.PW5/G (colly.) submitted on behalf of the company in this regard to the bank show that there were four directors on the board of the company namely Ombir Singh, Om Prakash Sharma, Shanti Devi and Sunil Kumar. However, it is not discernible from the evidence on record as to when Sunil Kumar was inducted as director of the company. The application was forwarded to the circle office by the then Senior Manager of the Uttam Nagar Branch Sh.
R.L. Jarwal with his recommendation. The company had also offered collateral security in the form of the equitable mortgaged of Plot No. 52 situated in Khasra No. 109/12, admeasuring 150 sq. yards, Raja Puri, Delhi and Flat No. G1 to G5, Moti Vihar, Gurgaon. The CBI No. 111/16 (Old No. 01/10) Page No. 49 of 113 State through CBI vs. Savita Devi & others circle office, vide its sanction memorandum dated 16.08.2001 Ex.PW5/M (colly.) sanctioned the credit limit in the sum of Rs. 50 lacs to the company. The flat at Gurgaon have been got valued from the approved valuer of the bank namely V.P. Aneja. The valuation report dated 02.07.2001 submitted by him is also on record.
(iii) The company again approached the bank on 31.03.2002 with a request to enhance the credit limit from Rs. 50 lacs to Rs. 100 lacs. The request and the documents submitted alongwith the same were examined at the branch by Senior Manager Sh. R.L. Jarwal, who then forwarded it to circle office with a recommendation to enhance the limit to Rs. 80 lacs. At the circle office, note Ex.PW5/O (colly.) dated 03.06.2002 was prepared by Sh. G.S. Sharma, Sr. Manager approving the enhancement. The note was approved by PW5 Sh. N.D. Sharma (Sr. Manager) also and finally by Sh. Gopal Ganja (Acting AGM) as well as Sh. R.K. Arora (DGM). Vide sanction memorandum dated 05.06.2002 Ex.PW5/P (colly.), enhancement of credit limit of the company from Rs. 50 lacs to Rs. 80 lacs was sanctioned by the circle office on the basis of the prime security of stock in trade and collateral securities in the form of the equitable mortgaged of the two already mortgaged properties i.e. Plot No. 52 situated in Khasra No. 109/12, admeasuring 150 sq. CBI No. 111/16 (Old No. 01/10) Page No. 50 of 113 State through CBI vs. Savita Devi & others yards, Raja Puri, Delhi and Flat No. G1 to G5, Moti Vihar, Gurgaon. This time, the flats at Gurgaon had been got valued from the approved valuer S.L. Dhir (A2) who had submitted his valuation report dated 08.05.2002 which forms part of the record.
(iv) In the month of October, 2002, the company vide application Ex.PW5/Q (colly.), requested the bank to enhance the credit limits from Rs. 80 lacs from Rs. 100 lacs. The request was vetted at the branch level of accused Satish Sikri, who had taken over as the Manager of the Branch by that time. Vide his communication dated 25.10.2002 Ex.PW5/Q2, accused Satish Sikri forwarded the request to the circle office with recommendation to enhance the limit and also stating that the company is offering further collateral security in the form of the equitable mortgaged of Plot No. 6 admeasuring 250 sq. yards situated in Khasra No. 116/9, Village Palam (now known as Mahavir Enclave, Block-B2), New Delhi given by accused Raj Kumar. The plot of land had been got valued by A2 S.L. Dhir (approved valuer) of the bank who had valued at Rs. 70,32,000/- vide his report dated 19.10.2002 (Ex.A-12). Legal Scrutiny Report (LSR) dated 23.10.2002 Ex.PW38/D1 in respect of the said land was obtained from Bank Panel Advocate R. Vasudev. In the advance section of circle office, the file was dealt with by PW5. Vide letter daed CBI No. 111/16 (Old No. 01/10) Page No. 51 of 113 State through CBI vs. Savita Devi & others 30.10.2002, Ex.PW5/Q3, certain queries were raised by the circle office which were answered by the branch vide its communication dated 06.11.2002 Ex.PW5/Q4. Thereafter, the circle office raised certain more queries vide letter dated 08.11.2002 Ex.PW5/Q5 which too were addressed by the branch vide its letter dated 13.11.2002 Ex.PW5/Q6. On receipt of the letter Ex.PW5/Q6, the note dated 16.11.2002 Ex.PW5/Q7 (colly.) was prepared by Sh. G.C. Sharma (Manager) in the circle office recommending enhancement of the limit of the company from Rs. 80 lacs to Rs. 95 lacs. The note was approved by PW5 (Sr. Manager in the circle office) also and finally by Sh. R.K. Arora (AGM) and Sh. Akshay Kumar (DGM). Accordingly, vide sanction memorandum dated 22.11.2002 Ex.PW5/Q9 (colly.), the credit limit of the company was enhanced from Rs. 80 lacs to Rs. 95 lacs on the basis of two already existing collateral securities and fresh additional collateral security in the form of the equitable mortgaged of aforementioned Plot No. 6, Mahavir Enclave, New Delhi. It is specifically stated in the said sanction memorandum that the branch shall ensure perfection of the existing equitable mortgages of the two properties and also equitable mortgaged of the additional property offered by the company in all respects and to ensure the compliance of all the conditions as per HO Circular No. 67/2001.
Subsequently, A4 Satish Sikri (Bank Manager), vide his CBI No. 111/16 (Old No. 01/10) Page No. 52 of 113 State through CBI vs. Savita Devi & others communication dated 07.02.2003 (Ex. A-18) informed the circle office that he alongwith another officer Mahesh Prakash had conducted physical verification of the properties mortgaged to the bank.
(Here, it is relevant to note that A11 Raj Kumar denied that he had ever offered his aforementioned Plot No. 6 Mahavir Enclave, New Delhi as collateral security for securing the credit limit of the M/s Kumbh Steel Pvt. Ltd., as mentioned hereinabove).
(v) The company again approached the bank in the month of November, 2003 vide application Ex.PW5/R (colly.) with the request to enhance its credit limit from Rs. 95 lacs to Rs. 150 lacs. The proposal was examined in the branch by accused D.C. Narnolia (Credit Manager) and the Chief Manager Sh. L. Raju who then forwarded the proposal to circle office with his recommendation to enhance the limit. However, this time the circle office refused to enhance the limit observing that the additional collateral security in the form of the equitable mortgaged of Plot No. 6, Mahavir Enclave, New Delhi valued at Rs. 100.5 lacs (vide valuation report of A2 S.L. Dhir Ex. A-14) which has been offered as collateral security for two other group accounts also, seems to be over valued and recommended limit of Rs. 150 lacs falls beyond MPBF. Accordingly, the circle office vide its sanction CBI No. 111/16 (Old No. 01/10) Page No. 53 of 113 State through CBI vs. Savita Devi & others memorandum dated 05.01.2004 Ex.PW7/C maintained the credit limit of the company at Rs. 95 lacs on the basis of existing collateral securities in the form of the equitable mortgaged of the three properties i.e. Plot No. 52 Rajapuri, G1 to G5, Gurgaon and Plot No. 6, Mahavir Enclave, New Delhi.
(vi) In the month of November, 2004, the company again approached the bank with the request to enhance the credit limit from Rs. 95 lacs to Rs. 300 lacs. The proposal was examined at the branch level; by accused D.C. Narnolia (Credit Manager) and Chief Manager accused Ravi Sethi (since expired) who, vide his letter dated 09.11.2004 Ex.A23 recommended such enhancement of limit to the company. In the circle office, note dated 27.11.2004 Ex.PW3/D (colly.) was prepared by Sh. S.K. Gupta, Sr. Manager wherein he mentioned that the branch ad recommended the enhancement of limit from Rs. 95 lacs to Rs. 200 lacs without obtaining any fresh additional collateral security but nevertheless recommended the enhancement on account of improved turn over of the company and the recommended limit being well within MPBF. The note was put up before accused K.V. Prabhakar Rao (AGM) and finally before accused DRP Sunderam (DGM), who also approved the same. Accordingly, vide sanction memorandum dated 03.12.2004, the credit limit of the company was enhanced from Rs. 95 lacs to CBI No. 111/16 (Old No. 01/10) Page No. 54 of 113 State through CBI vs. Savita Devi & others Rs. 200 lacs on the basis of already existing collateral securities in the form of the equitable mortgage of the above mentioned three immovable properties
(vii) Vide note dated 15.03.2005 Ex.A27 an adhoc limit of Rs. 50 lacs was sanctioned to the company, which has been prepared by Sh. S.K. Gupta (Sr. Manager) and approved by AGM SS Bhat as well as DGM accused DRP Sunderam.
54. Now, what remains to be discussed and decided by this Court is to
(i) Whether the title documents relating to mortgaged property i.e. Flat No. G1 to G5, Saran Apartments, Gurgaon are forged?
(ii) Whether the title documents relating to mortgaged property i.e. Plot No. 6, Khasra No. 116/9, Block B-2, Mahavir Enclave, New Delhi are forged and whether no such plot actually existed?
(iii) In case it is found that title documents of both the aforementioned properties or of any one of those are forged and no such plot as Plot No. 6, Khasra No. 116/9, Block B-2, Mahavir Enclave, Uttam Nagar, New Delhi actually existed, which of the accused was a part of conspiracy to such forgery and for use of these forged documents to create equitable mortgage in CBI No. 111/16 (Old No. 01/10) Page No. 55 of 113 State through CBI vs. Savita Devi & others favour of the bank?
Regarding Flat No. G1 to G5, Saran Apartments, Gurgaon:-
55. As already noted hereinabove, it is not in dispute that these five flats had been mortgaged on behalf of the company M/s Kumbh Steel Pvt. Ltd with Canara Bank as collateral security at the time of obtaining the credit limit of Rs. 50 lacs for the company in the month of July/August, 2001 and continued to be so at the time of enhancement of the limit subsequently. However, the evidence led by the prosecution clearly shows that the accused Ombir Singh (since deceased) was the owner of the only one of the flats i.e. G5 and neither he nor any other director of the company had any right, title or interest to Flat No. G1 to G4. PW24 is the material witness in this regard. He has testified that his wife Smt. Tej Grover had purchased the plot of land measuring 400 sq. yards in Khasra No. 45/2, Village Silokhara, District Gurgaon in 1994 vide registered Sale Deed dated 07.02.1994 (Mark PW24/1). He has further stated that they constructed four storey building upon the said plot which consists of flats of each floor and there were five flats bearing G1 to G5 on the ground floor. He stated that only one flat i.e. G-5 was sold to Ombir Singh vide registered sale deed dated 14.06.1999 (Ex.PW24/A) for a sum of Rs. 3 lacs. He was cross-examined only on behalf of A11 but there is nothing worth consideration in the same. He was not cross- examined at all on behalf of all the remaining accused.
56. It is thus manifest that Late Sh. Ombir Singh was the owner of the only one flat i.e. G5 which leads to the logical conclusion that the sale deed relating to flats G1 to G4, which have been furnished to the bank as CBI No. 111/16 (Old No. 01/10) Page No. 56 of 113 State through CBI vs. Savita Devi & others equitable mortgage to secure the credit given to the company M/s Kumbh Steel Pvt. Ltd were forged sale deeds. Neither Ombir Singh nor any other director of the company had any right, title or interest in these four flats.
Regarding Plot No. 6 admeasuring 250 sq. yards situated in Khasra No. 116/9, Mahavir Enclave, New Delhi:-
57. The contentions of the prosecution with regards to the said Plot No. 6 are two fold. Firstly, that the title documents regarding to the same are forged and secondly, the plot of land is only an imaginary one which was not found to be in existence at all.
58. It is the case of both the parties that one Laxmi Narayan was owner of the land falling in Khasra No. 116/9, Village Palam, now known as Mahavir Enclave, New Delhi. The case of the CBI is that Late Ombir Singh and A11 Raj Kumar prepared fake/forged documents such as GPA, Affidavit, Agreement to Sell and Receipt (all dated 24.01.1984) purportedly executed by Laxmi Narayan in favour of Ombir Singh in respect of Plot No. 6 measuring 250 sq. yards in said Khasra No. 116/9, when there was no such plot existing in the said land and thereafter, they both fabricated a sale deed dated 02.02.2000 vide which Ombir Singh is stated to have sold the said plot of land to A11 Raj Kumar. It is further case of CBI that the said sale deed alongwith the aforesaid documents in favour of Late Ombir Singh had been deposited with the bank by way of equitable of mortgage as collateral security for the credit limits granted to M/s Kumbh Steel Pvt. Ltd.
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59. It is vehemently argued on behalf of the accused that no family member of Laxmi Narayan has been examined as a witness in this case and therefore, there is no evidence on record to show that Laxmi Narayan had not sold Plot No. 6 in Khasra No. 116/9 to Late Ombir Singh. In this regard, it has been pointed out by Ld. PP that Laxmi Narayan's son Jai Bhagwan had participated in the investigation of this case and his statement under Section 161 Cr. P.C also was recorded by the IO. He further points out that Jai Bhagwan has been cited as witness in this case and had been summoned for 15.03.2016 to depose in the Court but it was reported on the summons that he has already expired on 19.01.2016 and accordingly, it was observed in the order dated 15.03.2016 that his name stands dropped from the list of witnesses. Ld. PP submits that Jai Bhagwan could not be examined as a witness in the Court only for the reason that he has already expired before he was summoned for the said purpose and therefore, his non examination was not deliberate and cannot be stated to be weakness in the prosecution case.
60. Ex. A-27 is the original registered sale deed dated 02.02.2000 vide which A11 Raj Kumar has purportedly purchased the said Plot No. 6 from his brother-in-law i.e. Late Sh. Ombir Singh. The factum of registration of sale deed in the office of the concerned Sub-Registrar has been confirmed by PW22 who was posted as Sub-Registrar-IX, South-West, Kapashera at that time. He identified the signature of seller Ombir Singh and buyer Raj Kumar on the same at point B and C respectively as well as their thumb impression/finger impression at points B1 and C1 respectively. He deposed that both the parties affixed their photograph on the sale deed and signed the same in his presence. When this CBI No. 111/16 (Old No. 01/10) Page No. 58 of 113 State through CBI vs. Savita Devi & others documents was put to A11 during admission and denial of documents, he admitted only his photograph on the same but denied his signature on the same. This appears to have been done by him apparently to distance himself from the said sale deed. However, it has never been agitated in his defence throughout the trial that he had not purchased the said Plot No. 6 from Ombir Singh vide said registered sale deed Ex.A27. It has nowhere been suggested to prosecution witnesses at all including PW22 and IO (PW39) that accused Raj Kumar never claimed himself to be the owner of the Plot No. 6 by virtue of the sale deed Ex. A-27 and that signatures of the buyer appearing on the same are not of A11 Raj Kumar and have been forged by someone else. Further, when it was put to this accused A11 in his examination under Section 313 Cr. P.C. that he claimed himself to have purchased the said Plot No. 6 from Late Sh. Ombir Singh, he admitted this fact as correct. (see answer to the Question Nos. 22 and 23).
61. Ld. Counsel for the accused Raj Kumar also did not deny, during the course of arguments advanced by him, that Raj Kumar claims to be the owner of the said Plot No. 6 by virtue of sale dated Ex. A27. The stand of Raj Kumar's counsel is that this Plot No. 6 situated in Khasra No. 116/9 was the previously owned by Late Sh. Ombir Singh who had purchased the same from Laxmi Narayan who was the original owner of the land falling in Khasra No. 116/9. The original General Power of Attorney, Affidavit, Agreement to Sell and Receipt (all dated 24.01.1984) vide which Ombir Singh is stated to have purchased the said Plot No. 6 from the original owner Laxmi Narayan are on record. However, they have remained unexhibited during the course of the evidence led by the prosecution as no prosecution witness has specifically referred to these CBI No. 111/16 (Old No. 01/10) Page No. 59 of 113 State through CBI vs. Savita Devi & others documents. Despite the lapse on the part of the prosecution in this regard, it is evident that these documents are not denied at all by accused Raj Kumar. This is clear from the replies given by him in his statement under Section 313 Cr. P.C when evidence in this regard was put to him. It would be apposite to reproduce here the relevant portion of the statement of accused Raj Kumar under Section 313 Cr. P.C on this aspect:-
"Q.27. It is in evidence against you and your co- accused that you Raj Kumar claimed that Laxmi Narayan had sold the said plot to your co-accused Ombir Singh vide GPA dated 24.01.84 and agreement to sell dated 24.01.84 and receipt dated 24.01.84. The signature of Laxmi Narayan appearing in Hindi on the said documents. What you have to say?
A. It is correct.
Q.28. It is in evidence against you and your co- accused that Laxmi Narayan had never sold the said land to your co-accused Ombir Singh, accordingly, Ombir Singh had no right to sell the same to you i.e. Raj Kumar. What you have to say?
A. It is incorrect. Laxmi narayan had sold the land in question to Ombir singh vide valid documents."
62. Further, the defence agitated by the Ld. Counsel for accused Raj Kumar during the course of arguments is that Raj Kumar has furnished the sale deed Ex. A-27 alongwith previous chain of documents to the CBI No. 111/16 (Old No. 01/10) Page No. 60 of 113 State through CBI vs. Savita Devi & others bank as collateral security for the advances given to M/s Moskos Steel Pvt. Ltd and not for the advances given to M/s Kumbh Steel Pvt. Ltd.
63. Therefore, a material on record coupled with the submissions made by Ld. Counsel for accused Raj Kumar clearly show that Raj Kumar claim to be the owner of the Plot No. 6 in question having purchased the same from his brother-in-law Sh. Ombir Singh vide Registered Sale Deed Ex. A-27 and had never denied his signatures upon the same as a purchaser.
64. Ld. Counsel for accused Raj Kumar also did not, at any stage during the entire trial or during the course of the final arguments, agitate that accused Raj Kumar never claimed that Late Sh. Ombir Singh had purchased the Plot No. 6 in question from Laxmi Narayan vide the documents i.e. GPA, Agreement to Sell, Affidavit and Receipt dated 24.01.1984. It may be said that the evidence led by the prosecution does not show that Late Ombir Singh had purchased the said Plot No. 6 from Laxmi Narayan vide GPA, Affidavit, Agreement to Sell and Receipt, which are on record and now marked as Ex.J-1 (colly.). However, it is clear from the record that, as per claims of Raj Kumar, Ombir Singh had purchased the said plot from Laxmi Narayan vide documents such as GPA, Agreement to Sell, Affidavit and Receipt dated 24.01.1984.
65. Evidence on record also clearly establishes that no such Plot No. 6 actually existed on the land falling in Khasra No. 116/9, Village Palam, Mahavir Enclave, New Delhi. The contentions put forward on behalf of accused Raj Kumar is that the said Plot No. 6 existed when he purchased the same from Ombir Singh vide registered sale deed Ex. A27 CBI No. 111/16 (Old No. 01/10) Page No. 61 of 113 State through CBI vs. Savita Devi & others but plot could not be traced later on when the bank officials reached the spot to locate it for the reason that unauthorized residential colony had come up on this land and the plots carved out in the colony were given haphazard numbers by the coloniser.
66. A4 Satish Sikri also contends that the said plot of land existed when he had been conducted is physical inspection on 07.02.2003 alongwith another officer Sh. Mahesh Sharma. Similarly, accused S.L. Dhir also contends that the plot of land existed and was pointed out to him by Ombir Singh on 19.10.2002, when he inspected it and carried out its verification.
67. Perusal of the sale deed Ex. A-27, which is a registered document, shows that its subject matter i.e. Plot No. 6 in question was sold by Ombir Singh to A11 Raj Kumar for a sale consideration of Rs. 50,000/- and vacant physical possession of the plot was also delivered to Raj Kumar. It is very intriguing to note that accused Raj Kumar has maintained a mischievous silence about what happened to the plot of land after he had taken its possession from Ombir Singh and pursuant to creation of its equitable mortgage in favour of Canara Bank. Why wasn't the said plot of land traceable when the bank officials had gone to locate it and to effect is its attachment and sale for realisation of the dues, is not understandable. It was not such a thing as could evaporate in air. At the most it may have been usurped and trespassed by any other person, who would have raised some construction thereupon. In that event, accused Raj Kumar would not have remained silent and would have initiated proper legal action against trespassers. The evidence on record does not suggest that any such action was initiated by the said accused.
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68. It was argued that since sale deed Ex. A-27 is a registered document, it shows that Plot No. 6, which is its subject matter, existed or otherwise, the Sub-Registrar would not have permitted its registration. The argument has been noted only to be rejected. The job of the Sub- Registrar is only to satisfy himself about the identity of vendor and Vendee as well as the genuineness of the transaction. It is not his job to conduct physical verification of the property sought to be sold. Mere registration of a sale deed is not proof that the property mentioned therein was in existence.
69. Much reliance was placed by Ld. Defence counsels on the Legal Scrutiny Report Ex.PW38/D1 of the bank panel advocate Sh. R. Vasudev and the three valuation reports of the two different approved valuers of the bank, two of which i.e. Ex. A-12 dated 19.10.2002 and Ex. A-14 dated 30.05.2005 prepared by accused S.L. Dhir and the third one prepared by PW25 Sh. S.K. Wadhwa dated 02.01.2007 (Ex.PW25/B) in respect of the said Plot No. 6 in question to argue that in case plot was not in existence at all, there would not have been a positive Legal Scrutiny Report and the valuers S.L. Dhir and S.K. Wadhwa would not have been in a position to value the same. It is submitted that three photographs have been annexed by S.K. Wadhwa alongwith his report Ex.PW25/B which are stated to be of the main gate fixed in the boundary wall of the plot in question.
70. I have minutely perused the above referred Legal Scrutiny Report (LSR) as well as valuation reports.
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71. So far Legal Scrutiny Report Ex.PW38/D1 is concerned, it is not helpful to the accused. The job of panel advocate who prepares Legal Scrutiny Report in respect of the property to be mortgaged with the bank is only to verify the title of the mortgagor or the owner of the property by examining the title documents and inspecting the record pertaining to the same in the office of Sub-Registrar. He is not required to visit the property to confirm its physical existence. It is for this reason that Sh. R. Vasudev, Panel Advocate has mentioned in his report that he has seen original documents with regards to Plot No. 6 and also has inspected the record in the office of the Sub-Registrar and did not find any registered charges with regards to the said property.
72. Coming to the valuation report Ex. A-12 dated 19.10.2002 of accused S.L. Dhir (Bank's Panel Valuer). The bare perusal of the same reveals that it does not pertain to Plot No. 6 which was sought to be mortgaged with the bank and the details of which are mentioned in the sale deed Ex. A-27 executed in favour of A11 Raj Kumar. As per the sale deed Ex. A-27, the said Plot No. 6 has roads on its Eastern and Western side and others property on its Northern as well as Southern side. Similar are the details of the property mentioned in the documents Ex. J-1 (colly.). However, Para 11 of the report Ex. A-12 shows boundaries of the plot as roads on three sides i.e. Northern, Eastern and Western and others property only one side i.e. Southern side. The valuer i.e. accused S.L. Dhir has also mentioned in the Para 5 of the report that there is one room constructed in the same, the technical details of which have been mentioned in Para 19 as under:
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(a) No. of floors and height of each floor : 9' 6"
(b) Plinth area floor-wise : 120 sq.
(c) Year of construction : 1990
(d) Estimated future life : 40 years
(e) Type of construction-load bearing/
R.C.C. Frame/Steel Structure : Load Bearing
(f) Type of Foundation : Conventional
(g) Walls : B/w in C. Mortor
(h) Partition
(i) Doors and windows : NIL
(j) Flooring : Angle iron frame with
M.S. Sheet shutter.
(k) Finishing : Cement plaster inside &
outside
(l) Roofing : Stone slab with Tee iron
73. In part-II of the report, where he has calculated the overall value of the property, he mentions boundary wall with the gates also, which he has valued at Rs. 10,000/-. Thus, as per this report, the construction of the room as well as boundary wall had been raised on the said plot in the year 1990. However, the sale deed Ex.A-27 in favour of A11 Raj Kumar, does not mention about any room or any boundary wall on the plot in question. The description of the property has been given in the said sale deed on page No. 2 in following words:-
"whereas the Vendor is owner and in possession of Plot No. 6 measuring area 250 sq. yards, out of Khasra No. 116/9 situated in Revenue Estate of Village Palam, CBI No. 111/16 (Old No. 01/10) Page No. 65 of 113 State through CBI vs. Savita Devi & others Delhi State, Delhi area Abadi known as Mahavir Enclave, Block-B-2, New Delhi and which is point out as under:
East : Road West : Road."
North : others property South : others property
74. It is, therefore, evident that there is no mention of any construction of any kind on the Plot No. 6 in the sale deed Ex.PW1/A. It was for the accused particularly A2 S.L. Dhir and A11 Raj Kumar to show to the Court that the room and the boundary wall existed on the said plot in the year 2000 when he is stated to have purchased the same by virtue of the sale deed Ex. A-27 even though same is not mentioned in the sale deed. It was also required of them to clarify the reasons as to why there is no mention of any such construction in the sale deed. Further, it is the contention of the accuseds themselves that a residential colony has been developed on the land falling in Khasra No. 116/9, Mahavir Enclave, New Delhi, of which Plot No. 6 in question was a parcel. Intriguingly, Sh. S.L. Dhir has described the Plot No. 6 as commercial in Para 6 of his report.
75. Same features can be pointed out in another report of valuer Sh. S.L. Dhir, which is Ex. A-14.
76. Above noted comparative analysis of the details of the property in question as well as its location/boundaries mentioned in the reports Ex. A-12 of valuer S.L. Dhir as well as in the sale deed Ex. A-27 makes it limpid that accused S.L. Dhir has not bothered to find out the Plot No. 6 CBI No. 111/16 (Old No. 01/10) Page No. 66 of 113 State through CBI vs. Savita Devi & others in question, which sought to be mortgaged with the bank and the details of which were mentioned in the sale deed Ex. A-27. It is quite certain that his reports do not relate to the Plot No. 6 in question and he falsely claims to have visited and valued the Plot No. 6 mentioned in the sale deed Ex. A-27. So, his reports are hardly of any relevance to decide as to whether the said Plot No. 6 actually existed or not.
77. So far as the valuation report Ex.PW25/B dated 02.01.2007 is concerned, its maker Sh. S.K. Wadhwa has been examined as PW25. He has deposed that he noted down the details of the plot of land to be valued from the sale deed shown to him in the bank and thereafter visited the property as per address mentioned in the sale deed. He has further deposed that he could not locate the property i.e. House No. 6, opposite DDA Flats, Mahavir Enclave, New Delhi and accordingly contacted either the Chief Manager or Senior Manager of the bank. They told him that they too are not aware about the location of the property as they are new in the branch and gave him the contact number of the Sunil Kumar, a relative of Ombir Singh and asked him to contact the person directly. He contacted Sunil Kumar on phone who reached the place and showed him the property to be valued. Accordingly, he valued the property in the presence of said Sunil Kumar. He identified accused Sunil Kumar to be the person who had pointed out the plot to be valued to him. In the cross- examination conducted on behalf of A4 Satish Sikri, he deposed that he has not mentioned in the report Ex. PW25/B that the property was shown to him by Sunil Kumar or that he had taken the help of Sunil Kumar in locating the property. He admitted that he did not obtain the signature of Sunil Kumar on any document. He admitted that he has mentioned in the report that he had inspected the property in the presence of a neighbour CBI No. 111/16 (Old No. 01/10) Page No. 67 of 113 State through CBI vs. Savita Devi & others and explained that neighbour was shopkeeper, whose shop was located near the property. He did not know the name of shopkeeper. When a question was put to him by the Court as to how did he ascertain that the property showed by the Sunil is the same property which was mortgaged with the bank, he replied that he believed Sunil Kumar at that time.
78. In view of the nature of the testimony of PW25 noted hereinabove, it cannot be said with certainty that he had inspected the actual Plot No. 6 as described in sale deed Ex. A-27. Neither any official of the bank who were familiar with the location of the plot nor its owner i.e. A11 Raj Kumar or its previous owner Late Sh. Ombir Singh had accompanied him to point out the plot of land to him. He appears to have taken the help of one Sunil Kumar stated to be relative of Late Sh. Ombir Singh who has pointed out the property to him saying that it is Plot No. 6. It is not discernible from the record as to how Sunil Kumar would identify the said plot of land. Even this fact that the plot in question was identified to PW25 by Sunil Kumar is doubtful for the reason that he has nowhere mentioned in his entire report that the property was shown to him by Sunil Kumar or he had taken the help of Sunil Kumar in locating the property. To the contrary, he has stated in the report that he inspected the property in the presence of the neighbour and explained in his cross-examination that the neighbour was a shopkeeper whose shop was located near the property. He has not given the name of the said shopkeeper either in his report or in his deposition before this Court. Therefore, it becomes evident that the plot, regarding which he has prepared verification report Ex. PW25/B, was not shown to him either by Sunil Kumar (relative of Ombir Singh) or any other representative of Ombir Singh and Raj Kumar.
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79. Thus, PW25 also has not shown due diligence in carrying out his job. He should not have proceeded to inspect and value a plot which was neither identifiable on its own nor was shown to him either by bank official or the owner of the plot. It appears from his deposition that he proceeded to conduct value of the plot pointed out to him by one neighbouring shopkeeper, who also has remained anonymous. So, it will be folly to say that his report Ex. PW25/B relates to the Plot No. 6 described in sale deed Ex. A-27 which had been mortgaged to the bank. Thus, his report also does not advance the contention of the accused that the Plot No. 6 is mentioned in the sale deed Ex. A-27 actually existed.
80. Further, perusal of the report Ex. PW25/B reveals that the plot of land valued by PW25 was an open plot with a small room upon it having roof made of AC sheets. The description does not match with the description of the plot given by previous valuer S.L. Dhir in his two reports Ex. A-12 and Ex. A-14 wherein he has mentioned that the roof of the room was made of stone slab with T-iron. Also, PW25 has mentioned character and classification of the locality as residential whereas S.L. Dhir has depicted the area as commercial in his report. Therefore, it is manifest that PW25 and S.L. Dhir have inspected and valued two different plots of land, none of which was Plot No. 6 as described in Sale deed Ex. A-27.
81. Hence, the valuation reports Ex. A-12 and Ex. A-14 and Ex.PW25/B do not in any way convey or establish that any plot of land bearing Plot no. 6 existed in Khasra no.116/9, Village Palam, Block-B2, Mahavir Enclave, New Delhi, at any point of time. Even if it is assumed, as sought to be argued on behalf of the accused, that such a plot of land CBI No. 111/16 (Old No. 01/10) Page No. 69 of 113 State through CBI vs. Savita Devi & others existed till the year 2007 in view of these valuation reports, one fails to understand as to how such a big plot of land measuring 250 sq. yards having construction over about one half portion of the plot would disappear in thin air.
82. Here, it also needs to be noted that when the bank realised that a fraud has been perpetrated on it by the group companies namely M/s. Moskos Steel Pvt. Ltd., M/s. Maharaja Steel Pvt. Ltd., M/s. Karamvir Steel Pvt. Ltd. and M/s. Kumbh Steel Pvt. Ltd., it directed its Senior Manager Sh. M.K. Gupta to conduct an enquiry regarding two properties mortgaged with the bank i.e. Plot No. G-1 to G-5, Ground Floor, Saran Apartments, Gurgaon and Plot No. 6, Khasra No. 116/9, Mahavir Enclave, New Delhi. He has been examined as PW20 and has proved the two reports submitted by him as Ex. PW20/A (Interim Report) and Ex. PW20/B (Final Report). In the final report Ex. PW20/B, he has stated that in order to assess the situation of availability or traceability of the property (i.e. Plot No. 6, Khasra No. 116/9, Block-B2, Mahavir Enclave, New Delhi), he conducted physical visit of the site on 23.11.2008 alongwith Sh. Mukesh Goel (Chief Manager of the branch), Sh. Sumit Prakash (Sr. Manager of the branch) and Sh. Subhash Jha (Panel Advocate of the bank), he however noted that one property in the same area bearing No. H. No. 8/B, Khasra No. 116/9, Mahavir Enclave, New Delhi, is also held as security for group company M/s Moskos Steel Pvt. Ltd. Thereafter, he mentions in the report as under:-
"Thus the two properties in the same Khasra No. with identity no.6 & 8B should have existed. The property at 8B (measuring 116 sq. yards as per branch records) CBI No. 111/16 (Old No. 01/10) Page No. 70 of 113 State through CBI vs. Savita Devi & others has been taken possession by the branch under SARFAESI and the same was still found locked by the Bank during our visit.
Though the identity No.8B was not displayed at the property and new number have since been allotted, we enquired from the neighbourhood about the ownership of the property and it was gathered that the property belongs to Sh. Ombir Singh and a steel business was being operated from there.
On enquiring about the property with identity no.6 i.e. property in dispute, it was informed that no other property was ever own by Sh. Ombir Singh in that area except the one locked by the Bank. We contacted the father and brothers of Sh. Ombir Singh who are resident in the same area to ascertain the availability of the said property. Brother of Sh. Ombir Singh only discussed the matter. He also confirmed that Sh. Ombir Singh was holding only one property which was locked by the Bank in that area i.e. Mahavir Enclave and no other property was ever held by him in that area.
With the above efforts and information gathered, I have come to conclusion that the property as such is not traceable and mortgage has been created for a non existing property."CBI No. 111/16 (Old No. 01/10) Page No. 71 of 113
State through CBI vs. Savita Devi & others
83. In his deposition as PW20, he has reiterated that the said Plot No. 6 in question could not be traced.
84. It was submitted by the Ld. Defence counsels that the deposition of this witness PW20 or his report is not worth any reliance at all as he did not make any sincere efforts to trace the plot of land in question. It is sought to be argued that his report and his deposition manifests, at the most, that he was unable to trace the said Plot No. 6 but it cannot be said from his deposition that the said Plot No. 6 did not exist at all. I feel unable to agree with the submissions of the Ld. Defence counsels. The contention that the said Plot No. 6 in question actually existed but was merely untraceable later on, is not believable at all. When the bank officials could locate another mortgaged property situated in the same area i.e. H. No. 8/B, Khasra No. 116/9, Mahavir Enclave, New Delhi, I find no reason for them to locate the Plot No. 6, if it actually existed. It may be difficult but not impossible to trace the plot of land which is so clearly described in the registered sale deed Ex. A-27, if it really existed. The fact that the Plot No. 6 could not be traced despite strenuous efforts of the bank officials including PW20 makes it limpid that it did not exist all. If the contention of the accused that the plot became untraceable only because of the development of residential colony upon the entire chunk of land falling within Khasra No. 116/9 by a coloniser with haphazard numbers, is to be believed, then H. No. 8/B, Khasra No. 116/9, Mahavir Enclave, New Delhi too should have been untraceable. This plot was traced as is existed and Plot No. 6 could not be traced as it did not exist.
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85. Here I feel that reference to Section 103 and 106 of the Indian Evidence Act is necessary, which are reproduced hereunder:
103. Burden of proof as to particular fact.- The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular.
106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
86. The particular fact i.e. exact location of the Plot No. 6 in question was within the special knowledge of both A11 Raj Kumar (its owner as per Sale Deed Ex.PW1/A) as well as A4 Satish Sikri (who claims to have physically verified its existence) and A2 S.L. Dhir (who claims to have valued it). Therefore, burden of proving the existence of the said plot was upon them. Since non existence of the land is a negative fact, the duty of the prosecution was only to establish facts & circumstances which render the existence of the land highly improbable. The prosecution has succeeded in establishing such facts & circumstances in this case. Thus the onus shifted to the accused to prove that the plot of land in question actually existed. They have miserably failed to discharge such onus. They should have come forward to identify the plot of land or at least its probable location either to the Bank officers or to the investigating officer or even to the Court during the trial of case. This Court is conscious of CBI No. 111/16 (Old No. 01/10) Page No. 73 of 113 State through CBI vs. Savita Devi & others the right of an accused to remain silent and also the legal principle that prosecution can't rely upon the weakness of defence but has to stand on its own legs. However, Section 103 and 106 of the Indian Evidence Act place onus upon the accused in certain cases like the instant one to prove the facts which are especially within his knowledge. Illustration (b) appended to Section 106 applies squarely to the facts of present case. Hence, the burden was upon the accused to prove that Plot No. 6 actually existed or exists which they have failed to discharge.
87. Hence, the evidence on record establishes beyond any doubt that Plot No. 6 never existed in Khasra No. 116/9, Village Palam now known as Mahavir Enclave, New Delhi. It leads to further conclusion that Sale Deed Ex. A-27 pertains to a non existant property and the documents stated to be executed in respect of the said Plot No. 6 by previous owner Laxmi Narayan in favour of Late Ombir Singh are forged documents.
88. It would be useful to note here that in a previous judgment dated 30.01.2018 passed by this very Court in another CBI case bearing RC No. 72/2009/EOU-III/CBI/New Delhi, titled CBI v. Raj Kumar etc., it has been held that the Plot No. 6 never existed on the land in Khasra No. 116/9, Village Palam and sale deed Ex. A-27 (Ex.PW1/A in that case) pertains to a non existent plot of land and the documents (Ex.PW10/A to Ex.PW10/D in that case) purportedly executed by Laxmi Narayan in favour of Late Sh. Ombir Singh are forged documents. Raj Kumar was accused No. 1 in that case and the name of Ombir Singh had been kept in Column No. 12 of the charge-sheet for the reason that he had died before the charge-sheet could be filed. Satish Sikri was accused No. 3 in that case. The advances/credit limits obtained by M/s Moskos Steel Pvt.
CBI No. 111/16 (Old No. 01/10) Page No. 74 of 113State through CBI vs. Savita Devi & others Ltd. (Another company floated by Late Ombir Singh of which Raj Kumar was also a director) were questioned in that case. Accused Raj Kumar had furnished title documents relating to the Plot No. 6, Village Palam, Mahavir Enclave, New Delhi i.e. the sale deed alongwith the previous chain of documents as collateral security by way of equitable mortgage to secure the advances given by the bank to M/s Moskos Steel Pvt. Ltd. The non-existence or otherwise of the said Plot No. 6 and the genuineness or otherwise of the title documents regarding the said plot of land in favour of Ombir Singh and Raj Kumar were the facts in issue in that case also. Since, the factual matrix of the instant case is almost identical to that of the aforementioned previous case between the same parties, the judgment delivered by this Court in that case is relevant and the findings arrived by this Court in the said previous case can be considered while deciding the present case.
89. As per Section 42 of Indian Evidence Act, 1872, judgements relating to the matters of public nature are relevant, not as res-judicata but as evidence, whether between the same parties or not. The term "Public" used in the said Section applies to that are concerning every member of the State. The nature of the title documents with regards to the Plot No. 6 in question as well as its existence or non-existence are the matters which concern each and every member of the public at large and therefore, the matters are undoubtedly of public nature. Hence, the judgment passed by this Court in the previous case bearing RC No. 72/2009/EOU-III/CBI/New Delhi, titled CBI v. Raj Kumar etc. is relevant to the instant case, even if some of the parties were not common to both the cases.
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90. Further, it is not legally permissible for this Court to hold in one case that the Plot No. 6 in question was non-existent and the title documents relating to the same are forged and to return a totally contrary findings in this regard in a subsequent case involving identical facts and circumstances and between the same parties. Therefore, once this Court has already held in previous case bearing RC No. 72/2009/EOU- III/CBI/New Delhi, titled CBI v. Raj Kumar etc. that Plot No. 6 never existed in Khasra No. 116/9 and the title documents relating to the same furnished to the bank as collateral security or forged documents, these findings are binding upon this Curt in the instant case as well and it would not have proper for this Court to take a contrary view in this regard in the instant case.
Regarding conspiracy related to the forgery or fabrication of title documents related to Plot No. 6 in Khasra No. 116/9:-
91. It has been held in the foregoing discussion that the documents i.e. GPA, Affidavit, Agreement to Sell and Receipt in the name of Late Ombir Singh and the sale deed Ex. A-27 in favour of A11 Raj Kumar related to a non-existent plot of land which leads to logical conclusion that these are fake/fabricated documents. Therefore, it is highly unlikely that GPA, Affidavit, Agreement to Sell and Receipt in favour of Late Ombir Singh came into existence in the year 1984 i.e. the date mentioned upon these documents. Evidence on record suggests that these documents have been forged and brought in existence in the year 2000 to lay foundation for execution of the sale deed Ex. A-27. Since, A11 Raj Kumar is the Vendee in the sale deed Ex. A-27 which relates to a non-existent plot of land and Ombir Singh is the vendor, it can be logically inferred that both CBI No. 111/16 (Old No. 01/10) Page No. 76 of 113 State through CBI vs. Savita Devi & others of them conspired with each other in forging these documents. Had A11 Raj Kumar not been a party to the forgery or had he not known that these documents are forged, he would not have signed the sale deed Ex. A-27 as Vendee which relates to a non-existent property. Thus, the arguments that these documents appear to have been forged in the year 1984 when A11 Raj Kumar was the minor and that he cannot be held liable as a conspirator in this regard, deserves rejection in toto.
92. As regards the charge of conspiracy framed against the accused is concerned, reference to Sections 120 A and 120 B of the Indian Penal Code as well as Section 10 of the Indian Evidence Act is necessary. The definition of the offence of criminal conspiracy is found in section 120 A which provides that when two or more persons agree to do, or cause to be done an act which is an illegal act, such an agreement amounts to criminal conspiracy. Section 120-B provides punishment for the offence of criminal conspiracy. The very nature of the offence of conspiracy i.e. an agreement to do or cause to be done an illegal act, indicate that it would never be entered into at a public place or on a high pedestal. Such agreements are always formed in privacy and away from the gaze of any other person. Therefore, it has always been found difficult to gather direct evidence to prove a conspiracy. Considering the said about the proof of conspiracy, Section 10 of the Indian Evidence Act has been enacted which reads as under :
"10. Things said or done by conspirator in reference to common design - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, CBI No. 111/16 (Old No. 01/10) Page No. 77 of 113 State through CBI vs. Savita Devi & others anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
93. The implications and ramifications of the Section 10 of the Indian Evidence Act have been discussed in detail by the Supreme Court in Kehar Singh & Ors. Vs State (Delhi Administration) 1988 (3) SCC 609. It has been held that the section can be analyzed as follows :
(i) There shall be a prima-facie evidence affording a reasonable ground for a court to believe that two or more persons are members of the conspiracy ;
(ii) If the said condition is fulfilled, anything said to be done or written by any one of them with regards to their common intention will be evidence against the other ;
(iii) Anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them ;
(iv) It would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the CBI No. 111/16 (Old No. 01/10) Page No. 78 of 113 State through CBI vs. Savita Devi & others conspiracy or after he left it ;
(v) It can only be used against co-conspiractor and not in his favour.
94. It has also been held by the Supreme Court in Nazir Khan Vs. State of Delhi (2003) 8 SCC 461 that the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. It has been further held that the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. Reiterating that it is not always possible to give affirmative evidence about the date of formation of criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy and about the manner in which the object of conspiracy is to be carried out, the Supreme Court observed that all this is necessarily a matter of inference. The Hon'ble Judges also referred to the observations of British Judge Coleridge J. in R.V. Murphy (1837) 173 ER 502 which I find pertinent to reproduce herein :
"........ I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into CBI No. 111/16 (Old No. 01/10) Page No. 79 of 113 State through CBI vs. Savita Devi & others execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, 'had they this common design, and did they pursue it by these common means - the design being unlawful."
95. In the instant case also, though there is no direct evidence to show that there have been any agreement between Ombir Singh and Raj Kumar to forge/fabricate the sale documents in respect of a non-existent Plot No.6, yet evidence on record clearly shows that they have been acting in collusion and connivance with each other. In view of the conduct of accused Raj Kumar, which is discussed in various paragraphs hereinabove, it can't be said that he was not aware about the forgery of title documents i.e. GPA, Affidavit, Agreement to Sell and Receipt in favour of Ombir Singh and that the said criminal act was not the result of an agreement between the two. Therefore, the evidence discussed hereinabove provides a prima-facie reasonable ground to believe that Ombir Singh and Raj Kumar had conspired with each other and the object of the conspiracy was to forge/fabricate the title documents with CBI No. 111/16 (Old No. 01/10) Page No. 80 of 113 State through CBI vs. Savita Devi & others regards to the non-existent property bearing Plot No. 6. Therefore, whatever has been done by the Ombir Singh, is evidence against Raj Kumar and whatever has been by Raj Kumar, is evidence against Ombir Singh.
96. Thus, the prosecution has been successful in proving the charge of conspiracy under Section 120B/468 IPC as well as charge for the substantive offence under Section 468 IPC against accused Raj Kumar.
97. However, there is nothing on record to show that the remaining accused i.e. A1 Savita Devi, A4 Satish Sikri, A5 D.C. Narnolia, A6 DRP Sunderam, A7 K.V. Prabhakar, A8 Om Prakash Sharma, A9 Shanti Devi and A10 Sunil Kumar had played any role in the forgery/fabrication of all these documents.
Regarding the use of the forged documents by the accused:-
98. Ld. Counsel for A11 Raj Kumar submitted that this accused was neither the director of company M/s Kumbh Steel Pvt. Ltd nor was he involved in applying for the enhancement of the credit limits to the said company and therefore, there was no cause or occasion for him to submit the sale deed Ex. A-27 or documents Ex. J-1 (colly.) to the bank as collateral security for enhancement of the credit limits of the company. According to Ld. Counsel, the document (D-62) (letter evidencing of title deeds) relied upon by the CBI in this regard is an unexhibited documents and these cannot be read in evidence. His further submission is that the said document is a interpolated one as Raj Kumar had agreed for furnishing the sale deed Ex. A-27 as collateral security in respect of the CBI No. 111/16 (Old No. 01/10) Page No. 81 of 113 State through CBI vs. Savita Devi & others credit limits granted to the company M/s Moskos Steel Pvt. Ltd only and the name of M/s Kumbh Steel Pvt. Ltd has been written on the said letter later on without his consent. He argued that there is no evidence on record to show that accused Raj Kumar had furnished the sale deed Ex. A-27 as collateral security for the credit limits granted to the company M/s Kumbh Steel Pvt. Ltd.
99. On behalf of A1 Savita Devi, A8 Om Prakash, A9 Shanti Devi and A10 Sunil Kumar, it is argued by their respective counsels that they were not involved in the day to day transactions between M/s Kumbh Steel Pvt. Ltd and the bank at all. It is submitted that Late Ombir Singh alone used to transact with the bank on behalf of the company and it was his One Man Show. It is argued that none of these accused was involved in submission of any forged documents to the bank.
100. Ld. Counsel for A4 Satish Sikri submitted that since sale deed Ex. A-27 was a registered document, there was no cause or occasion for this accused to doubt the genuineness of the transaction evidenced by the sale deed as well as the previous chain of documents. According to Ld. Counsel, there is no evidence on record to suggest that A4 knew about the forgery or that he was party to the use of these forged documents.
101. Ld. Counsel for A5 D.C. Narnolia, A6 DRP Sunderam and A7 K.V. Prabhakar also submitted that there is no evidence on record to show that these accused were aware about the forgery of the documents for seeking enhancement of the credit limits of the company.
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102. The Current A/c No. 6995 in the name of company M/s Kumbh Steel Pvt. Ltd had been opened in Uttam Nagar Branch of Canara Bank on 17.03.2001 during the tenure of PW16. The Account Opening Form is Ex. PW5/A. He deposed that the two directors of the company Ombir Singh and Om Prakash Sharma have approached the bank for opening the said account and both signed the Account Opening Form in his presence. He further proved the specimen signature card of Ombir Singh as Ex. PW16/A. Perusal of the Account Opening Form Ex. PW5/A clearly reveals that it is signed by only Ombir singh and the introducer Mr. Mahesh. It is not signed by any other director of the company including accused Om Prakash. Neither PW16 nor PW5 has deposed that any other director of the company except Ombir Singh was also authorised to operate the said current account of the company M/s Kumbh Steel Pvt. Ltd. As per the deposition of PW16, specimen signature of only Ombir Singh had been obtained at the time of opening of the current account in the name of the said company. There is no evidence on record to show that the specimen signature of any other director of the company had also been obtained so that he/she may also be competent to operate the account.
103. Collateral security in the form of equitable mortgage of Flat No. G1 to G5, Gurgaon was furnished on behalf of the company M/s Kumbh Steel Pvt. Ltd to the bank in the month of July, 2001 at the time of seeking credit limit in the sum of Rs. 60 lacs. Late Ombir Singh, accused Om Prakash Sharma (A8), Shanti Devi (A9) and Sunil Kumar (A10) were the four directors of the company at that time. Though, the application submitted in this regard to the bank bears the signatures of all the four directors, yet it is evident from the Board Resolution of the Company CBI No. 111/16 (Old No. 01/10) Page No. 83 of 113 State through CBI vs. Savita Devi & others dated 18.06.2001 [forming part of Ex. PW5/G (colly.)] that only Ombir Singh had been authorised to borrow money from the bank. The entire correspondence addressed to the bank on behalf of the company bears the signature of only Ombir Singh. The document (D-37) (which has remained to be exhibited during the evidence led by the prosecution) is the letter evidencing deposit of title deeds with the bank. Case of the prosecution is that vide this letter title documents relating to Plot No. 52, Rajapuri, Delhi and Flat No. G1 to G5, Gurgaon had been submitted to the bank as collateral security. This letter is also signed by Ombir Singh alone. There is no evidence on record to show that accused Om Prakash Sharma (A8), Shanti Devi (A9) and Sunil Kumar (A10) also were involved in furnishing the forged sale deeds relating to the Flat NO. G1 to G4 Saran Apartments, Gurgaon to the bank on this occasion. None of the prosecution witnesses has deposed that these three accused had also accompanied Late Ombir Singh to the bank at the time of deposit of these forged sale deeds as collateral security. There is no evidence on record to show that furnishing of title deeds of these flats to the Bank as collateral security was discussed and approved in any meeting of the Board of Directors of M/s Kumbh Steel Pvt. Ltd in the presence of these three accused. Similarly, no evidence has been led by the prosecution to show that the credit limit granted to the company was mis-utilized by any of these three accused Om Prakash Sharma (A8), Shanti Devi (A9) and Sunil Kumar (A10) for their personal expenses.
104. The title documents relating to Plot No. 6 in Khasra No. 116/9, Village Palam were furnished to the bank as collateral security in October, 2002 at the time of seeking enhancement of the credit limit of the company M/s Kumbh Steel Pvt. Ltd from Rs. 80 lacs to Rs. 100 lacs.
CBI No. 111/16 (Old No. 01/10) Page No. 84 of 113State through CBI vs. Savita Devi & others This time also Late Ombir Singh, accused Om Prakash Sharma (A8), Shanti Devi (A9) and Sunil Kumar (A10) were the directors of the company and had signed the application Ex. PW5/Q (colly.). Perusal of the Board Resolution dated 06.10.2002, which forms part of Ex. PW5/Q (colly.), shows that Ombir Singh and Sunil Kumar had been authorised to borrow money from the bank on behalf of the company. However, the scrutiny of the entire file in this regard reveals that the correspondence addressed to the bank was signed by Ombir Singh alone. As per the case of the prosecution, document (D-62) dated 11.12.2002 is the letter vide which the title documents relating to the Plot No. 6 were deposited with the bank as per collateral security. As already noted hereinabove, this document has remained to be unexhibited during evidence led by the prosecution. However, its perusal reveals that it is signed by accused Raj Kumar alone, who was mortgagor, claiming to be the owner of the said Plot No. 6. No witnesses examined by the prosecution has stated that this letter was delivered to the bank by any of the three accused Om Prakash Sharma (A8), Shanti Devi (A9) and Sunil Kumar (A10) or that the sale deed Ex. A-27 as well as the documents Ex. J-1 (colly.) were deposited with the bank by any of these three accused. There is no evidence on record to show that furnishing of title deeds of the said Plot No. 6 to the Bank as collateral security was discussed and approved in any meeting of the Board of Directors of M/s Kumbh Steel Pvt. Ltd in the presence of these three accused. The evidence on record also does not show that any of these three accused had visited the bank alongwith Ombir Singh and accused Raj Kumar or that they had withdrawn and utilized any money disbursed on credit to the company M/s Kumbh Steel Pvt. Ltd.
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105. Hence, it cannot be said from the scrutiny of the evidence led by the prosecution that accused Om Prakash Sharma (A8), Shanti Devi (A9) and Sunil Kumar (A10) were aware that the sale deeds in respect of the Flat No. G1 to G4 Saran Apartments, Gurgaon and Plot No. 6 in Khasra No. 116/9, Mahavir Enclave, New Delhi were forged and that they were involved in use of these forged documents by depositing those with the bank as collateral security for the credit limits granted to the company.
106. The defence raised on behalf of the accused Om Prakash Sharma (A8), Shanti Devi (A9) and Sunil Kumar (A10) that Late Ombir Singh had taken their signatures on various documents on the pretext of deposit of money in their bank accounts for their maintenance and that they were not involved at all in the day to day affairs of the company M/s Kumbh Steel Pvt. Ltd or its transactions with the bank, appears to be probable. The testimony of PW26 and PW30 is material in this regard. PW26 was the driver of Late Ombir Singh. He has deposed in his cross-examination that accused Om Prakash Sharma (A8), Shanti Devi (A9) and Sunil Kumar (A10) were residing together separately from Late Ombir Singh in a small house constructed on plot of land measuring 50 sq. yards whereas Ombir Singh was residing in a three story house in DLF, Gurgaon. Had A8, A9 and A10 been partners in crime of Ombir Singh, they too would have been sharing its yield and would have been staying in a big mansion. PW26 further stated that none of these three accused had ever visited the bank in respect of any transaction relating to the companies/firms flouted by Ombir Singh himself. As per his statement in examination-in-chief, Late Ombir Singh had opened a bank account in his name also showing him the proprietor of M/s Surya Steel. He has deposed that Ombir Singh had got all the cheques signed from him in CBI No. 111/16 (Old No. 01/10) Page No. 86 of 113 State through CBI vs. Savita Devi & others blank and had kept the same with him and used to operate the account himself.
107. The testimony of PW26 shows that Ombir Singh had not spared even his driver and had shown the driver (PW26) as proprietor of one of the firms i.e. M/s Surya Steel. Though, the bank account had been opened in the name of PW26, yet the same was being operated by Ombir Singh himself. According to the testimony of PW30, who is the borther-in-law (Sala) of Ombir's brother Mahesh Kumar, Ombir Singh had taken his signatures on certain papers on the pretext of buying a car but did not disclose the true nature of those papers to him. In view of the deposition of PW26 and PW30 coupled with the correspondence exchanged on behalf of the company M/s Kumbh Steel Pvt. Ltd and the bank, as noted hereinabove, which is signed only by Ombir Singh, one feels it difficult to disbelieve that accused Om Prakash Sharma (A8), Shanti Devi (A9) and Sunil Kumar (A10) were made directors of M/s Kumbh Steel Pvt. Ltd by Late Ombir Singh for name sake only and they were not concerned at all with the day to day affairs of the company including obtaining credit limits from the bank. They deserve to be given benefit of doubt.
108. So far accused Savita Devi (A1) is concerned, she was one of the director of the company M/s Kumbh Steel Pvt. Ltd in November, 2004 when the company had approached the bank with a request to enhance the credit limit from Rs. 95 lacs to Rs. 300 lacs. However, no fresh collateral security was offered on behalf of the company to the bank on this occasion. She cannot be held liable for anything that had been done on behalf of the company before she was inducted as a director of the CBI No. 111/16 (Old No. 01/10) Page No. 87 of 113 State through CBI vs. Savita Devi & others company.
109. With regard to accused Raj Kumar (A11), it is contended on behalf of the prosecution that he had furnished the sale deed Ex. A-27 relating to the non-existent plot of land alongwith its forged previous chain of documents in the name of Late Sh. Ombir Singh to the bank as collateral security for the enhancement of the credit limit of the company M/s Kumbh Steel Pvt. Ltd vide letter (D-62) dated 11.12.2002. As already noted hereinabove, this document is not exhibited document as no prosecution witness has referred to it. It is argued on behalf of the accused Raj Kumar that he never offered the sale deed Ex. A-27 alongwith its previous chain of document as collateral security for M/s Kumbh Steel Pvt. Ltd. His counsel submitted that he had offered these documents as collateral security only for another group company M/s Moskos Steel Pvt. Ltd.
110. It is not disputed that this document (D-62) bears the signature of accused Raj Kumar at two places marked Q30 and Q31. Even the report of CFSL expert Ex. PW37/B shows that the signatures at these points are that of accused Raj Kumar. Perusal of this document reveals that it relates to both companies M/s Moskos Steel Pvt. Ltd and M/s Kumbh Steel Pvt. Ltd. It nowhere indicates that it is an interpolated document or that the name of the M/s Kumbh Steel Pvt. Ltd has been written thereupon subsequently after the same had been signed by accused Raj Kumar. The names of M/s Moskos Steel Pvt. Ltd and M/s Kumbh Steel Pvt. Ltd have been written by one and same pen and by one and the same person. There is no indication at all in the entire document to suggest any interpolation in the same. Further, reference to the cross-
CBI No. 111/16 (Old No. 01/10) Page No. 88 of 113State through CBI vs. Savita Devi & others examination conducted on behalf of the accused Raj Kumar of PW7 appears to be relevant in this regard. The relevant portion of the same is reproduced hereinbelow:-
Question: On what basis, you have mentioned in your note dated 02.01.2004 part of Ex.PW3/B at page No. 1651-52 that the improvement of the collateral is not matching with the enhancement?
Answer: I mentioned so because party was coming frequently for enhancement of the limit and the projected performance was not in line with past performance.
Question: Is it correct that the party offered additional collateral security of Rs. 100/- lacs at the time of seeking enhancement?
Answer: Yes. (vol. The said property was offered as common collateral security for three group companies, for all of which enhancement was sought).
111. The collateral security of Rs. 100 lacs mentioned in the above noted question put to this witness in his cross-examination is the Plot No. 6 in Khasra No. 116/9. (See valuation report Ex. A-14). It has nowhere been put to this witness that the equitable mortgage of the said plot of land was never created for M/s Kumbh Steel Pvt. Ltd. PW20 has also deposed that Plot No. 6 in Khasra No. 116/9, Mahavir Enclave was mortgaged to the bank on behalf of both the companies M/s Moskos Steel Pvt. Ltd and M/s Kumbh Steel Pvt. Ltd. It has nowhere been CBI No. 111/16 (Old No. 01/10) Page No. 89 of 113 State through CBI vs. Savita Devi & others suggested to this witness in the entire cross-examination conducted on behalf of A11 Raj Kumar that the said Plot No. 6 was not furnished as collateral security for M/s Kumbh Steel Pvt. Ltd. The thrust of the cross- examination of this witness has been only to demonstrate that the said plot of land existed but was not traceable. Similarly, it has not been put to any other prosecution witnesses also including IO (PW39) that accused Raj Kumar had not created equitable mortgage of Plot No. 6 in question for M/s Kumbh Steel Pvt. Ltd.
112. Therefore, the evidence on record clearly manifests that accused Raj Kumar had created equitable mortgage in favour of the bank by depositing sale deed Ex. A-27 alongwith its previous forged chain of documents as collateral security for the credit limits granted by the bank to both the companies i.e. M/s Moskos Steel Pvt. Ltd and M/s Kumbh Steel Pvt. Ltd.
113. Since, it has already been held that the sale deed Ex. A-27 relates to a non-existent property and its previous chain of documents is forged/fabricated, it is established that accused Raj Kumar and Late Ombir Singh had used these forged documents by submitting those to the bank as collateral security for seeking enhancement of the credit limits for the company M/s Kumbh Steel Pvt. Ltd.
114. As already noted hereinabove, evidence led by the prosecution does not show that accused A5 D.C. Narnolia, A6 DRP Sunderam and A7 K.V. Prabhakar were either aware about the forgery of these documents or were involved in their use for obtaining any facility from the bank for the company.
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115. With regards to the role of A4 Satish Sikri, it is to be noted that he had joined as the Manager of Uttam Nagar Branch of Bank on 28.08.2002. He had approved and forwarded the application of the company M/s Kumbh Steel Pvt. Ltd to the circle office for enhancement of the credit limit of the company from Rs. 80 lacs to Rs. 95 lacs in the month of October, 2002. It is at the time of seeking the said enhancement, that the company had furnished additional collateral security in the form of equitable mortgage of the title deeds relating to the plot of land Plot No. 6 in Khasra No. 116/9, Mahavir Enclave, New Delhi. It is the case of the prosecution that A4 was involved in conspiracy alongwith Late Ombir Singh and A11 Raj Kumar in the use of forged/fabricated documents relating to the aforesaid Plot No. 6 as collateral security for the enhancement of the credit limit of the company. It is contended by the CBI that he knew that no such Plot No. 6 is existence and prepared a false physical verification report regarding the same which he forwarded to the circle office in order to ensure that the credit limit of the company is enhanced on the basis of fake collateral security.
116. Accused Satish Sikri has admitted that vide letter dated 07.02.2003 Ex. A-18, he confirmed to the circle office that he has physically verified all the properties, mortgaged to the bank on behalf of the company M/s Kumbh Steel Pvt. Ltd and other group companies. His contention throughout has been that the Plot No. 6 in question was in existence and he confirmed its physical existence to the circle office after visiting the said plot alongwith another bank officer Mr. Mahesh Prakash. It is argued on his behalf that Sh. Mahesh Prakash has not been cited as a witness by the CBI in this case only with a view to conceal from this Court, the CBI No. 111/16 (Old No. 01/10) Page No. 91 of 113 State through CBI vs. Savita Devi & others evidence which was in his favour.
117 It is true that in the letter Ex. A-18 addressed to circle office by accused Satish Sikri, it is mentioned that he had conducted physical verification of the mortgaged properties alongwith Mr. Mahesh Prakash. It is also true that Mr. Mahesh Prakash has not been cited as a witness by the CBI in this case. However, non examination of Mr. Mahesh Prakash is a witness of this case does not assume any significance at all and even if he would have been examined as a witness in this case, that would not have advanced the case of A4 at all. It is for the reason that this Court has already held on the basis of the evidence on record that Plot No. 6 in question did not exist at all at any point of time which implies that the contents of the letter Ex. A-18 are patently false. The fact remains that A4 represented falsely to the circle office about the physical existence of Plot No. 6 by way of the said letter Ex. A-18.
118. I may also refer here to circular bearing No. 67/2001 dated 15.03.2001 issued by Head Office of Canara Bank [(Ex.PW31/D (colly.)] which clearly envisages that physical verification of the property offered as collateral security is mandatory. It would be pertinent to reproduce here the Clause-2 (III) of the said circular as under:-
"Wherever property is offered as security for our advance (belonging either a third party or the borrower/s), physical verification of the property by the branch officials, to ascertain its existence must be carried out before putting through EMT. A suitable record in this regard containing the name of the official/s who have conducted CBI No. 111/16 (Old No. 01/10) Page No. 92 of 113 State through CBI vs. Savita Devi & others such verification and the date of physical verification should be maintained."
119. Since A4 was the Manager of Uttam Nagar Branch at the relevant time, it was his duty to physically inspect the property sought to be mortgaged and to forward the proposal for enhancement of credit limit only after getting the satisfaction that the property actually exists. The conduct of A4 in preparing and submitting a patently false physical verification report in respect of Plot No. 6 sought to be mortgaged on behalf of the company M/s Kumbh Steel Pvt. Ltd clearly manifests that he was a part of conspiracy hatched by Late Ombir Singh and A11 Raj Kumar to cheat the bank by getting credit on the basis of a false and fictitious collateral security.
120. The act of A4 does not appear to be a mere negligent act but his conduct shows that he had made deliberate false representation to the circle office regarding the physical verification of Plot No. 6 in question in order to aid and assist Late Ombir Singh and A11 Raj Kumar in their illegal design.
121. As already noted herein above that it is not expected of the prosecution to lead a direct evidence regarding the meeting of minds or an agreement between the conspirators. What is expected of the prosecution in the cases involved in conspiracy is to lead such evidence as would afford a reasonable ground for the Court to believe that the accused are the members of the conspiracy. In the instant case, it is evident that Late Ombir Singh, A11 Raj Kumar as well as A4 Satish Sikri performed one or other part of the act, the object of which was to cheat CBI No. 111/16 (Old No. 01/10) Page No. 93 of 113 State through CBI vs. Savita Devi & others the bank by furnishing fake/fabricated documents as collateral security. The conduct of all these accused leads to only irresistible conclusion that they had been engaged in such a conspiracy.
122. Lastly, the role of A2 S.L. Dhir is to be discussed. He was approved valuer on the Panel of Canara Bank and had conducted valuation of Plot No. 6 in question twice i.e. on 19.10.2002 and 30.05.2005. The valuation reports submitted by him are Ex. A-12 and Ex. A-14 respectively, which are not denied by him. It was argued on his behalf that the Plot No. 6 in question was shown to him by Late Ombir Singh and he prepared a proper valuation report after physically inspecting the said property. His counsel has argued that there is no evidence on record suggesting his complicity in any of the offences for which he has been charged or that he had charged some extra amount from the borrower for submitting valuation report.
123. Apart from the statement of this accused recorded under Section 313 Cr. P.C, his counsel has failed to point out any evidence on record which confirms his contention that the plot to be valued was shown to this accused by Late Ombir Singh. A2 has nowhere mentioned in the entire report Ex. A-12 as to who had pointed out the plot of land to him which he has inspected and valued. In the subsequent valuation report Ex. A-14, he has mentioned at page-6 that the property was inspected by him in the presence of the owner. As per the sale deed Ex. A-27, A11 Raj Kumar was the owner of the Plot No. 6. Therefore, the contents of the valuation report Ex. A-14 are contrary to the submission made by the Ld. counsel for this accused. So, perusal of the these valuation reports i.e. Ex. A-12 and Ex. A-14 does not indicate that accused S.L. Dhir had inspected the CBI No. 111/16 (Old No. 01/10) Page No. 94 of 113 State through CBI vs. Savita Devi & others property in question in the presence of Late Ombir Singh who had pointed out the same to him. Nothing in this regard has been even put to the IO (PW39) in his cross-examination. It would be useful to reproduce here the Court question put to PW39 during his cross-examination on behalf of A2 and the answer given by the witness:-
Court Q: Did you ask from S.L. Dhir how he located the said property?
Answer: S.L. Dhir did not give any plausible reply, he only told that he did not remember how he identified the said property.
124. There is no further cross-examination of PW39 in this regard after the aforesaid answer given by him to the Court Question. It has not been suggested to him that accused S.L. Dhir had told him during the course of investigation that the propety to be valued was pointed out to him by Late Ombir Singh. Therefore, there is nothing on record to believe the contention raised on behalf of this accused that Plot No. 6, which he had inspected and valued, was shown to him by Late Ombir Singh.
125. Further, the description of the property mentioned in the two valuation reports Ex. A-12 and Ex. A-14 is quite similar. This implies that both the valuations reports pertain to one and the same property.
However, as already noted in Para Nos. 72, 73, 74, 75 and 76 hereinabove, the description of the property stated in these two reports of accused S.L. Dhir does not match with the description of the property in the sale deed Ex. A-27, which was sought to be mortgaged with the bank. It is thus manifest that accused S.L. Dhir made no attempt to locate the CBI No. 111/16 (Old No. 01/10) Page No. 95 of 113 State through CBI vs. Savita Devi & others actual plot of land, the details of which were mentioned in the sale deed Ex. A-27 and has prepared the two valuation reports out of his own imagination without bothering to actually visit the property or the area where it was stated to be situated. Had he visited the area in question to locate the Plot No. 6 which was to be valued by him, he would have come to know that no such plot exists. The conduct of this accused S.L. Dhir clearly shows that he had prepared false and fictitious valuation reports at the instance of Late Ombir Singh in order to aid him in obtaining the credit limits for his company M/s Kumbh Steel Pvt. Ltd on the basis of collateral security in the shape of title deeds relating to a non-existent plot of land.
126. Thus, the charge of conspiracy under Section 120B/471 IPC stand established against him also as the record clearly shows that he was part of conspiracy alongwith other three conspirators Late Ombir Singh, A4 Satish Sikri and A11 Raj Kumar.
Regarding the charge of conspiracy for the offence of cheating:-
127. The definition of cheating is provided in section 415 of Indian Penal Code. One of the essential ingredients of the offence of cheating is that the alleged act must have been committed either dishonestly or fraudulently. Section 24 of the Indian Penal Code defines dishonestly as under :
"Dishonestly : Whoever does anything with the intention of causing a wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly.CBI No. 111/16 (Old No. 01/10) Page No. 96 of 113
State through CBI vs. Savita Devi & others
128. Section 25 of the Indian Penal Code defines Fraudulently as under :
"Fraudulently - A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise."
129. It is evident from the discussion hereinabove and the evidence led by the prosecution that Late Ombir Singh and A11 Raj Kumar duly assisted by A2 S.L. Dhir and A4 Satish Sikri fraudulently furnished fake/fabricated title documents regarding the non-existent Plot No. 6 to the bank with an intent to defraud the bank and thereby caused a wrongful gain to the company M/s Kumbh Steel Pvt. Ltd by way of money paid to it on credit, to which it would not have been entitled otherwise, and caused wrongful loss to the bank as the loan turned NPA. Furnishing of a collateral security in the form of a non-existent plot of land shows that Late Ombir Singh and A11 Raj Kumar had no intention to pay the dues to the bank right from the beginning.
130. Therefore, A2, A4 and A11 have also committed an offence of conspiracy to cheat under Section 120B/420 IPC as well.
Regarding the charge under Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 :-
131. Ld. Public Prosecutor argued that the conduct of A4 Satish Sikri, Branch Manager at the relevant time, manifests the dishonest intention on his part very clearly and therefore, he cannot escape liability under the CBI No. 111/16 (Old No. 01/10) Page No. 97 of 113 State through CBI vs. Savita Devi & others Prevention of Corruption Act, 1988 for his criminal misconduct. He submitted that any prudent person, who holds the responsibility as a Manager of Branch of the Bank, would not submit false physical verification report in respect of any property sought to be offered by the borrower as collateral security unless he has been bribed. He reiterated that it is the case of mere breach of procedure or irregularity in doing official work on the part of A4 but he has been acting in such as manner deliberately, being involved with Late Ombir Singh and A11 Raj Kumar, in order to ensure that the credit limit of the company M/s Kumbh Steel Pvt. Ltd is enhanced on the basis of false/fictitious collateral security.
132. Ld. Counsel for accused A4 submitted that even if any deficiency or irregularity is found in the manner in which A4 has acted or functioned while handling the request of the company for enhancement of the credit limit that alone does not tantamount criminal misconduct on his part in order to attract the provisions of Section 13 of PC Act. He would argue that the accused did not have any dishonest intention and there is no evidence on record to show that he had received any pecuniary gain from anybody. It is his submission that mere breach of procedure or not following proper procedure and mere irregularity in doing official work does not make a public servant liable under criminal law including PC Act.
133. The manner in which accused A4 prepared the physical verification report in respect of the Plot No. 6, which was sought to be mortgaged with the bank in lieu of enhancement of the credit limit of the company, without visiting the spot and without actually verifying as to whether or not any such plot of land exists coupled with the fact that he did not ask the CBI No. 111/16 (Old No. 01/10) Page No. 98 of 113 State through CBI vs. Savita Devi & others Late Ombir Singh and A11 Raj Kumar at any point of time to show him the plot of land in question does not create any slightest impression in one's mind that he was acting bonafidely and without any criminal intent. It is to be borne in mind that A4 was dealing with the request of the company for enhancement of the credit limit to Rs. 95 lacs meaning thereby that public money to the tune of Rs. 95 lacs would be given and credited to the company and the requisite circulars cast duty upon him to physically verify existence of property sought to be offered as collateral security. In such a situation, forwarding a proposal for enhancement of credit limit alongwith the patently false physical verification report of the property sought to be mortgaged, cannot be termed as a mere irregularity in doing official work or mere a breach of procedure. It is evident that he did not step out of his office and prepared false report at the behest of Late Ombir Singh and A11 Raj Kumar to facilitate that illegal acts. The conduct of A4, as mentioned herein above, leaves no doubt in one's mind that he had been doing so for obtaining the pecuniary advantage for himself or for some other person.
134. Here, I find it appropriate to reproduce Section 7 and 13 (1) (d) of the PC Act, 1988:-
Section 7. Public servant taking gratification other than legal remuneration in respect of an official act. - Whoever, being or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or CBI No. 111/16 (Old No. 01/10) Page No. 99 of 113 State through CBI vs. Savita Devi & others forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of ay State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Section 13. Criminal misconduct by a public servant. -
(1) A public servant is said to commit the offence of criminal misconduct, -
(d) if he, -
...................................................
...................................................
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage;
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or CBI No. 111/16 (Old No. 01/10) Page No. 100 of 113 State through CBI vs. Savita Devi & others pecuniary advantage;
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
135. Perusal of the Section 13 (1) (d), reproduced herein above shows that the essential ingredients of the offence of criminal misconduct relating to the government officials are :-
(i) that the accused is a public servant;
(ii) he has obtained any valuable thing or pecuniary
advantage for himself or for any other person by corrupt or illegal means or by abusing his position as public servants (sub-section (1) (d) (i) (ii) of Section 13);
(iii) he has obtained such valuable thing or pecuniary advantage for any other person without any public interest, while holding office as a public servant (sub- section (1) (d) (i) (iii) of Section 13);
136. Thus, in order to attract Section 13 (1) (d) (ii), the prosecution has to establish that the public officer has indulged in corrupt or illegal means or has abused his position as such officer to obtain any valuable thing or pecuniary benefit for himself or any other person. However, for attracting Section 13 (1) (d) (iii), the prosecution has to prove merely that the public officer obtained a valuable thing or pecuniary benefit to any person CBI No. 111/16 (Old No. 01/10) Page No. 101 of 113 State through CBI vs. Savita Devi & others without any public interest. Use of corrupt or illegal means or abuse of official position or obtaining pecuniary advantage for himself is immaterial for applicability of sub clause (iii).
132. Analyzing the aforesaid sub clause (iii), the Hon'ble High Court in case of Runu Ghosh Vs. CBI, Criminal Appeal No. 482/2002 decided on 21.12.2011 has observed:-
"A new offence (or sub-species, of the existing offence) has been carved out, in Section 13 (1) (d) (iii) which criminalizes, as "criminal misconduct" the act of a public servant, holding office, which results in someone else (any person) benefitting by getting a valuable thing or pecuniary advantage, without any public interest. There is no doubt that Parliament created this new offence of criminal misconduct, where abuse of office, or use of corrupt or illegal means by a public officer, is inessential to prove the crime. What the prosecution has to establish, in accordance with law, is that the public officer, obtained for someone else - not necessarily by abusing his office, or using corrupt or illegal means - pecuniary advance or a valuable thing - without public interest."
137. Upon the detailed analysis of the said provision of law, Hon'ble High Court, in the aforesaid judgment, came to the conclusion that mens rea is inessential to convict the accsued for the offence punishable under Section 13 (1) (d) (iii) of PC Act, 1988. In this regard, it has been observed in Para No. 73 of the judgment is as under :-
CBI No. 111/16 (Old No. 01/10) Page No. 102 of 113 State through CBI vs. Savita Devi & others Para No. 73. "Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the pre-existing law, as well as the decisions of the Court-the conclusion which this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13 (1) (d) (iii). It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can be many acts of a public servant, which result in pecuniary advantage, or obtaining of a valuable thing to someone else; typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations, etc. Yet, such grants, concessions, or other forms of advantages to third parties would not criminalize the public servants actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest".
138. Explaining the concept of "public interest", there Lordship referred to the judgment of Supreme Court in LIC of India Vs. Consumer Education & Research Centre, (1995) 5 SCC 482 and reproduced following paragraph of the said judgment:-
CBI No. 111/16 (Old No. 01/10) Page No. 103 of 113 State through CBI vs. Savita Devi & others "Public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined toe act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good an in general public interest and it must not take any irrelevant or irrational factors into consideration or appear arbitrary in its decision. A recent judgment, has examined the concept, in NOIDA Entrepreneurs Associate."
139. There Lordships also referred to another judgment of the Supreme Court reported as NOIDA Entrepreneurs Association Vs. NOIDA (2011) 6 SCC 508 wherein it has been held in this regard as under : -
The State or the public authority which holds the property for the public or which has been assigned the duty of grant largesse, etc. acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by Crl. A. Nos. 482/2002, 509/2002 and 536/2002 Page 54 virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a trustee.
CBI No. 111/16 (Old No. 01/10) Page No. 104 of 113 State through CBI vs. Savita Devi & others xxxxxxxxx xxxxxxxxx Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. Public authorities cannot play fast and loose with the powers vested in them. A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred.
140. Hence, even if the prosecution is unable to prove mens rea on the part of the accused public servants or the fact that they had received any pecuniary gain for themselves for their acts, the fate of the accused would be sealed if the prosecution succeeds in establishing that the public servant has obtained any pecuniary advantage or valuable thing to another without public interest. In other words, if the evidence on record shows that the acts of the concerned public servant are absolutely unfair, unreasonable, unjust, inequitable and not for the purpose of public good, he shall be considered to have acted without public interest.
141. It is true that the CBI, in this case, has not produced any evidence to show that accused A4 had received valuable thing or pecuniary advantage for himself. However, it is manifest beyond doubt that he had been acting in collusion with Late Ombir Singh and A11 Raj Kumar to CBI No. 111/16 (Old No. 01/10) Page No. 105 of 113 State through CBI vs. Savita Devi & others ensure that the company M/s Kumbh Steel Pvt. Ltd. obtains pecuniary advantage i.e. credit limit on the basis of fake/forged security. Evidence on record shows beyond doubt that A4 was dancing to the tune of Late Ombir Singh and A11 Raj Kumar and assisted them in furnishing the forged documents relating to a non existent plot of land as collateral security. It is evident that he has acted contrary to public interest. It cannot be gain said that no public interest is involved in assisting a borrower for obtaining loan/credit from bank by furnishing fake and forged security documents. A4 has abused his position as public servant in order to ensure pecuniary advantage to Late Ombir Singh and A11 Raj Kumar as well as their company M/s Kumbh Steel Pvt. Ltd.
142. Hence, A4 Satish Sikri is liable to be convicted under Section 13 (2) r/w Section 13 (1) (d) (iii) of PC Act.
Sanction qua prosecution of A4 Satish Sikri:-
143. No arguments have been advanced on behalf of A4 on this aspect. The sanction qua prosecution of this accused was accorded by PW35 who was posted as General Manager in the Head Office of Canara bank at Bangalore. He proved the sanction order dated 23.12.2009 as Ex. PW35/A. No flaw can be found in the same.
Regarding the plea of double jeopardy raised on behalf of A4 Satish Sikri:-
144. Relying upon the provisions of Article 20 (2) of the Constitution of India and Section 300 of Code of Criminal Procedure, it is contended on CBI No. 111/16 (Old No. 01/10) Page No. 106 of 113 State through CBI vs. Savita Devi & others behalf of these two accused that since they have already been convicted under Section 120B/468 IPC and Section 120B/471 IPC for forging the title documents relating to the Plot No. 6 and for use of those documents by depositing those as collateral security in the bank, in the previous case bearing RC No. 72/2009/EOU-III/CBI/New Delhi, titled CBI v. Raj Kumar etc. vide judgment dated 30.01.2018 of this Court, they cannot be convicted again for the same offence in this case. It is submitted that the genuineness or otherwise of the same title documents relating to the Plot No. 6 and the existence or non-existence of the said Plot No. 6 is the subject matter of the instant case also.
145. According to the Ld. Public Prosecutor, the conspiracy forming subject matter of previous case titled CBI v. Raj Kumar etc. and the conspiracy forming subject matter of the instant case related to the different bank accounts, in the name of different entities and which entities have been granted separate credit facilities by the bank and therefore, the bar under Article 20 (2) of Constitution of India and Section 300 (1) of Cr. P.C does not apply.
146. Article 20 (2) of Constitution of India reads as under:-
"No person shall be prosecuted and punished for the same offence more than once."
147. Section 300 (1) of the Cr. P.C reads as under:-
"A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or CBI No. 111/16 (Old No. 01/10) Page No. 107 of 113 State through CBI vs. Savita Devi & others acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of the Section 221, or for which he might have been convicted under sub-section (2) thereof."
148. The above noted two provisions of law, envisage that no person can be tried and convicted for the same offence or for any other offence on the same facts, for which or upon which he has been already convicted or acquitted and while such conviction or acquittal is in force.
149. In order to decide as to whether or not the bar created by the above noted two provisions of law is applicable, it is to be noted here that one of the charges framed in this case against A4 and A11 is under Section 120B/468/471 IPC for conspiring to make forged/fake documents and for using the same to obtain the credit facility from the bank for the company M/s Kumbh Steel Pvt. Ltd. A11 has also been charged for the substantive offences under Section 468/471 IPC.
150. A11 Raj Kumar has already been convicted under Section 120B/468 IPC as well as for the substantive offence under Section 468 IPC in the previous case titled CBI v. Raj Kumar etc. for having conspired to prepare fake titled documents and for actually forging the title deeds relating to the said Plot No. 6 in question. It is not in dispute that the forged title documents i.e. Registered Sale Deed in the name of A11 Raj CBI No. 111/16 (Old No. 01/10) Page No. 108 of 113 State through CBI vs. Savita Devi & others Kumar alongwith previous chain of documents, which were produced by CBI in evidence against accused in the previous case title CBI v. Raj Kumar etc., have been produced in evidence against accused in the instant case also. In other words, the documents which have been forged, are same in both the cases. Therefore, once accused Raj Kumar has been convicted for the forgery of these documents in the previous case titled CBI v. Raj Kumar etc., he cannot be convicted for the same offence again in this case. There was only one forgery, the result of which was the documents which have been produced in evidence in both the cases. In case the accused Raj Kumar is again convicted in this case for the offence of forging of those very documents, it was certainly tantamount to double jeopardy, which is prohibited under law.
151. Coming to the offence of use of the aforementioned forged title documents, which is an offence under Section 471 IPC. No doubt, A11 Raj Kumar and A4 Satish Sikri have been convicted under Section 120B/471 IPC as well as for substantive offence under Section 471 IPC in the previous case titled CBI v. Raj Kumar etc., that would not create any bar for their conviction for these offences in this case also. It is for the reason that these forged documents have been used twice on behalf of two different entities, at two separate occasions and for obtaining distinct credit facilities for those two entities. Making of a false document is one thing, which can be done only once. However, the said false/forged document could be used at many places and at different occasions to cheat and defraud either different persons or the same person. Whenever and wherever is the said false/forged document used by a person, it creates separate offence and he is liable to be prosecuted and convicted for all these offences separately.
CBI No. 111/16 (Old No. 01/10) Page No. 109 of 113 State through CBI vs. Savita Devi & others
152. Therefore, the bar envisaged under Article 20 (2) of the Constitution of India and Section 300 (1) of Cr. P.C does not apply to the charge under Section 120B/471 IPC as well as for the substantive offence under Section 471 IPC is framed in this case.
Regarding the accused A5, A6 and A7:-
153. A5 D.C. Narnolia was the credit manager in the Uttam Nagar of the Canara Bank at the relevant time. His job was to go through the request of the company for enhancement of the credit limit as well as the documents annexed with the same and to make a proposal accordingly to be laid before the Manager of the Bank. He was not the decision making authority. It was not within his duty or domain to conduct the physical verification of the existence of the property sought to be mortgaged. Therefore, it does not appear from the evidence on record that he had any role in forwarding the credit proposal of the company M/s Kumbh Steel Pvt. Ltd. to the circle office. It is also not the case of CBI that A5 had been given the job of verifying the physical existence of the property sought to be mortgaged i.e. Plot No. 6 or he had accompanied A4 for the inspection of the plot. No such contention was raised on behalf of A4 even.
154. Evidence on record does not show or suggest any guilty intention on the part of this accused. Therefore, he is to be given benefit of doubt and is liable to be acquitted.
155. So far as A6 DRP Sunderam and A7 K.V. Prabhakar are concerned, they were posted at the circle office during the relevant CBI No. 111/16 (Old No. 01/10) Page No. 110 of 113 State through CBI vs. Savita Devi & others period. There is no evidence on record that they had at any point of time come in contact with the borrower i.e. Late Ombir Singh or A11 or any other director of M/s Kumbh Steel Pvt. Ltd. Their job was to check and verify the proposal and the annexed documents received from the concerned branch of the bank and to give their remarks accordingly. In recommending the proposal for enhancement of credit limits of the company M/s Kumbh Steel Pvt. Ltd., they had merely acted upon the proposal received from the branch including the physical verification report of A4. There was no reason or occasion for them to disbelieve the report of A4 or to doubt the authenticity of the title documents of the plot of land offered as collateral security.
156. It was further argued by Ld. Public Prosecutor that the conduct of A6 and A7 in approving the enhancement of credit limit of M/s Kumbh Steel Pvt. Ltd in the month of November, 2004 from Rs. 95 lacs to Rs. 200 lacs when such enhancement had earlier been rejected by the same two officers in the circle office in the month of November, 2003 clearly indicates that they were acting in connivance with the directors of the borrower company and have assisted the company to get the credit limit without it being entitled thereto. He further points out that these two officers also did not ask the borrower company to provide any additional collateral security despite the fact that the credit limit of the company was doubled. According to Ld. Public Prosecutor, these two officers would not have acted in the aforestated manner, unless they would have been taken into confidence by the directors of the borrower company.
157. It was argued by the Ld. Counsel for these accused A6 and A7 that the credit limit of the company was enhanced from Rs. 95 lacs to Rs. 200 CBI No. 111/16 (Old No. 01/10) Page No. 111 of 113 State through CBI vs. Savita Devi & others lacs in the month of November, 2004 after taking into account various banking parameters of the company such as Net Working Capital (NWC), Projected Balance Sheet (PBS) and the same was according to the Maximum Permissible Banking Finance (MPBF). He submitted that there was nothing wrong in enhancement of the limit of the company even though same had been rejected earlier by the circle office in the month of December, 2003. Ld. Counsel has drawn my attention to the deposition of PW3 and PW7 in this regard.
158. PW3, who also is an officer of the bank, has deposed that in case a proposal for enhancement of the credit limit of a borrower company has been rejected earlier, it cannot be considered again if the party is fulfilling the eligibility norms for enhancement. PW7, who has handled the account of M/s Kumbh Steel Pvt. Ltd while posted as Assistant General Manager in the circle office, has deposed that no irregularities whatsoever were found by him in the conduct of the account in question at the level of the branch as well as circle office level and he did not find any deviation from the banking norms and policies of the bank.
159. Thus, it is manifest from the testimony of PW3 and PW7 that it was neither impermissible nor illegal to approve the credit limit of M/s Kumbh Steel Pvt. Ltd after it had been rejected earlier. There is no evidence on record that at the time of enhancement of credit limit of the company from Rs. 95 lacs to Rs. 200 lacs in the month of December, 2004, any banking parameters or regulations had been flouted at the circle office level particularly by A6 and A7. None of the prosecution witnesses has pointed out any irregularities in the conduct of A6 and A7 in this regard. Therefore, in the absence of any evidence, no fault can be found in the CBI No. 111/16 (Old No. 01/10) Page No. 112 of 113 State through CBI vs. Savita Devi & others conduct of A6 and A7. They deserve to be given benefit of doubt in this regard.
Conclusion:-
160. In view of the aforesaid discussion A1 Savita Devi, A5 D.C. Narnolia, A6 DRP Sunderam, A7 K.V. Prabhakar, A8 Om Prakash Sharma, A9 Shanti Devi and A10 Sunil Kumar are hereby acquitted.
161. However, A2 S.L. Dhir, A4, Satish Sikri and A11 Raj Kumar are convicted as under:-
(i) Accused S.L. Dhir, Satish Sikri and Raj Kumar are hereby convicted for the offence of conspiracy under Section 120B/420/471 IPC.
(ii) Accused Satish Sikri is also convicted for the offence under Section 13 (2) r/w Section 13 (1) (d) (iii) of PC Act.
(iii) Accused Raj Kumar is also convicted for the offence under Section 471 IPC.
162. A2 S.L. Dhir, A4 Satish Sikri and A11 Raj Kumar are acquitted of all other charges.
Announced in the open Court on 28.04.2018 (Virender Bhat) Special Judge, CBI-01, North West Rohini Courts, Delhi CBI No. 111/16 (Old No. 01/10) Page No. 113 of 113