Delhi District Court
Cc No. 103/11Cbi vs . Jagdish Kumar Jain & Ors. Page 1 Of 59 on 23 February, 2012
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
SPECIAL JUDGE (PC ACT), CBI-08, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI.
RC No. : 15(A)/92
CC No. : 103/2011 (Old No.51/95)
PS : CBI/ACB/ND
CBI
Versus
1. Jagdish Kumar Jain (Expired)(Public Servant)
S/o Shri J. P. Jain
R/o G-263/A, Rishi Nagar,
Sakur Basti, New Delhi,
Dy. Chief Officer,
Central Bank of India,
Darya Ganj, New Delhi.
2. Satish Kumar Jain (Expired)
S/o Shri Balwant Singh Jain
R/o 167/1, Railway Colony,
Minto Bridge, New Delhi
Railway Ticket Collector
3. Y. P. Tara (Absconded)
S/o Shri M. P. Tara
R/o 197/A, Laxmi Nagar,
Vikas Marg, New Delhi.
4. Pawan Sain Jain (Accused facing trial)(Public Servant)
S/o Shri Inder Singh Jain
R/o 4378, Ansari Road,
Darya Ganj, New Delhi
Clerk, Central Bank of India
CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 1 of 59
5. Jaydev Tyagi (Expired) (Public Servant)
S/o Shri B. M. Tyagi
R/o 52/P, Gali No. 4,
New Extension,
Shankar Nagar, Delhi
6. Ajay Kumar Gupta (Convicted & sentenced 05.03.02)
S/o Shri R. L. Gupta
7. Satish Kumar Gupta (Convicted & sentenced 05.03.02)
S/o Shri R. L. Aggarwal
8. S. P. Goel (Accused facing trial)
S/o H. N. Goel
R/o 126, Civil Lines,
Sardar Balwant Singh Marg,
Bareilly (U.P.)
9. Beena Goel (Accused facing trial)
W/o Shri S. P. Goel
R/o 126, Civil Lines,
Sardar Balwant Singh Marg,
Bareilly (U.P.)
10. V. K. Khanna (Convicted & sentenced 05.03.02)
S/o Shri C. K. Khanna
11. Mukesh Gulati (Convicted & sentenced 05.03.02)
S/o Shri S. S. Gulati
12. Mahinder Singh (Convicted & sentenced 05.03.02)
S/o Shri J. S. Rekhi
13. Arun Kumar Gupta (Convicted & sentenced 05.03.02)
S/o Shri Ram Lal
Date of FIR : 31.03.1992
Date of Institution : 09.11.1995
Arguments heard on : 18.02.2012
CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 2 of 59
Date of Judgement : 18.02.2012
JUDGEMENT
1. The case investigated on the basis of FIR registered on 31.03.1992 (about two decades back) resulted in chargesheet being presented on 09.11.1995 seeking trial of 13 accused mentioned above for offences u/s 120B r/w Section 419, 420, 511, 467, 468, 471 IPC and Section 13(1)(d) r/w 13(2) of PC Act, 1988 and also the substantive offences. It is alleged that the accused entered into criminal conspiracy with the object to cheat Government of India to the extent of over Rs.27.07 lakhs by depositing Indian currency in two fake/fictitious accounts opened for the purpose, so as to falsely claim that the bank drafts issued represented foreign exchange received under the scheme. It is alleged that certificate on aforesaid basis issued under the scheme were utilised intentionally and knowingly by the respective beneficiaries by depositing the amount in their respective banks stating that they were proceeds of foreign exchange for claiming income tax exemption.
At this stage, it may be appropriate to mention that all the 13 accused have been reflected in the title for proper comprehension of the facts as placed in the chargesheet. Accused Ajay Kumar Gupta (A-6), Satish Kumar Gupta (A-7), V. K. Khanna (A-10), Mukesh Gulati (A-11), Mahender Singh (A-12) and Arun Kumar Gupta (A-13) were charged u/s 120B IPC r/w Section 420, 467, 468, 471 IPC and Section 13(1)(d) r/w 13(2) of PC Act, 1988 as well as substantive charge u/s 474 IPC. Accused V. K. CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 3 of 59 Khanna (A-10) and Mukesh Gulati (A-11) were also charged u/s 420/511 IPC. The aforesaid six accused pleaded guilty at the stage of charge and were convicted and sentenced vide order dated 05.03.2002 by the then Special Judge, Delhi. Further, considering the fact that none of the said accused, who had pleaded guilty could not actually derive any pecuniary advantage and the protracted proceedings, accused were sentenced TRC and fine.
The trial, as such, has proceeded against the remaining accused. Out of the same, A-1 Jagdish Kumar Jain (public servant), A-2 Satish Kumar Jain and A-5 Jaydev Tyagi (public servant) have expired during the course of trial and as such the proceedings against them stand abated. A-3 Y. P. Tara absconded during the course of proceedings.
The effective trial, as such, remains against the remaining three accused A-4 Pawan Sain Jain (public servant), A-8 S. P. Goel and A-9 Beena Goel.
2. Scheme under the Foreign Exchange and Investment in Foreign Banks (Immunities and Exemptions Act, 1991) Government of India introduced a scheme on 18.09.1991 regarding inward foreign exchange remittances under the Foreign Exchange and Investment in Foreign Banks (Immunities and Exemptions Act, 1991). The scheme provided for immunity to persons receiving remittance of foreign exchange and also granted certain exemptions from direct tax in relation to such remittance received by persons residing in India. In terms of CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 4 of 59 Section 3(1) of the Act, a recipient of such remittance claiming immunity/exemption under the law was not required to disclose for any purpose whatsoever the nature and source of remittance received by him and no investigation or enquiry was to be commenced against such recipient under any law on the ground of receipt of said remittance and the remittance received was not to be treated as income of the recipient, except that income tax was to be levied against income that might arise or accrue from the amount of remittance.
Under the scheme, the recipient of the remittances in foreign exchange was required to file a declaration in triplicate in the prescribed form to the authorized dealer through whom the inward remittance had been received, not later than 15 days from the date of such receipt and the authorized dealer was required to authenticate all the said three copies of the declaration with date and full signatures under his seal, so as to make the recipient eligible for claiming immunity/exemption.
On amount being received and appropriated in the account, the beneficiary would be required to get a certificate from the bank and after ascertaining the facts, the authorized officer was to issue a certificate confirming that the remittance had been received under the Immunity Scheme and was not valid for refund or conversion facilities.
3. Brief Facts The case was registered on source information by CBI on CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 5 of 59 31.01.1992 with the allegations that accused public servants namely J. K. Jain (A-1), and Jaydev Tyagi (A-5) while working as Dy. Chief Officer and officer respectively in Central Bank of India, Daryaganj, Branch during the period Feb. 1991 to Nov. 1991, entered into a criminal conspiracy among themselves and with Shri Y. P. Tara (A-3) and with some persons and misused their official position and cheated the Govt. of India to the extent of over Rs.27.07 lakhs. It was further alleged that huge amount of Indian currency was deposited to fictitious current accounts in Central Bank of India, Daryaganj and thereafter 12 demand drafts of Rs. 11.07 lakhs were issued to different parties alongwith bogus certificate showing the amount of demand drafts as remittance in foreign exchange from NRE accounts. The above said bogus certificates were issued by Shri J. K. Jain (A-1) fraudulently and he also manipulated the records and allowed irregular credit in the abovesaid two accounts.
4. Modus Operandi & evidence collected during investigation
(i) Investigation allegedly disclosed that two fictitious accounts were opened in Central Bank of India, Daryaganj i.e Account No.3024 in the name of M/s Modern Engineers and Fabricators and the other home saving account No. 17036 in the name of Shri Satish Kumar Joshi at the instance of Shri J. K. Jain (A-1), S. K. Jain (A-2), Pawan Sain Jain (A-4), Jaydev CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 6 of 59 Tyagi (A-5) and Y. P. Tara (A-3). Shri S. K. Jain (A-2) was a Railway Ticket Collector of Northern Railway working in Delhi and has since expired.
(ii) The Current Account No. 3024 was allegedly opened by S. K. Jain by impersonating himself as Raj Kumar, Prop. of M/s Modern Engineers and Fabricators as fictitious firm. He was introduced by Shri Y. P. Tara, Prop. M/s Sears Leasing Industries Ltd. and this account was opened at the instance of Shri J. K. Jain as is clear from the endorsement of Shri J. D. Tyagi on the back of the current account specimen signature card wherein it is mentioned that the account was opened through Shri J. K. Jain.
(iii) The other account i.e. Home Saving Account No. 17036 was allegedly opened at the instance of Shri J. K. Jain, Pawan Sain Jain, S. K. Jain and J. D. Tyagi. The writing in the account opening form and specimen signature card is alleged to be of Shri Pawan Sain Jain impersonating as Satish Kumar Joshi. Shri S. K. Jain, who is not an employee of Central Bank of India had filled up the credit voucher for opening this account in the name of a fictitious person Shri Satish Kumar Joshi. Shri J. D. Tyagi was responsible for getting this fictitious account opened.
CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 7 of 59(iv) All the vouchers pertaining to credit of cash into the two accounts mentioned above and the debit vouchers by which the cash was withdrawn and then drafts prepared in the name of various parties through whom cash were obtained were collected, prepared for getting these parties benefit under the Remittance of Foreign Exchange under Investment in Foreign Exchange Bonds "Immunities & Exemption Act, 1991", falsely. It is further alleged that on scrutiny of the records it was revealed that seven drafts were prepared out of cash deposited in the current account in the name of M/s Modern Engineers and Fabricators and four drafts were prepared in various names by depositing in the Home Saving Account.
(v) The following drafts were from current account No. 3024 of M/s Modern Engineers and Fabricators :-
1)34/1571 dated 14.10.1991 of Rs.3,90,750/- for Akanksha Gupta .
2)34/1684 dated 01.11.1991 of Rs.3,90,000/- for Satish Kumar Gupta.
3)34/1700 dated 02.11.1991 of Rs. 1,48,200/- for Mandeep Singh.
4)34/1528 dated 10.10.1991 for Rs.2,60,000/- for Nidhi Gupta.
5)34/1529 dated 10.10.1991 of Rs.2,50,000/- for Ativ Gupta.CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 8 of 59
6)34/1670 dated 30.10.1991 of Rs.3,40,000/- for V. K. Khanna.
7)34/1675 dated 31.10.1991 of Rs.2,39,200/- for Kamla Devi Baid.
(vi) The following proceeds of the drafts were from the HSS account no. 17036 of Shri Satish Kumar Joshi.
1)34/1927 dated 26.11.1991 of Rs.1,50,000/- for Mukesh Gulati.
2)34/1559 dated 12.10.1991 of Rs.2,08,500/- for Ankur Gupta.
3)34/1898 dated 25.11.1991 of Rs.1,50,000/- for S. P. Goel.
4)34/1926 dated 26.11.1991 of Rs.1,50,000/- for Beena Goel.
One draft favouring Sonal Goyal was prepared directly depositing the cash and the details of which is as under :-
1) 34/1897 dated 25.11.1991 of Rs.50,000/- for Sonal Goyal.
(vii) 11 out of the aforesaid 12 drafts mentioned in "bogus bank certificates" favouring the aforesaid persons, mentioned therein that the proceeds of the drafts in question were issued by debiting the NRE account maintained in the bank and thereby showing foreign exchange being the proceeds of drafts which CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 9 of 59 was not correct. These certificates with false recital of debiting NRE account were issued fraudulently and dishonestly to make the person eligible to claim Immunity of tax under the scheme referred to above.
Five of such certificates were given by Shri J. K. Jain.
(viii) The particulars of the said bogus certificates are as follows :
1)Certificate No. 90/91 dated 02.11.1991 favouring Mandeep Singh.
2)Certificate No. 48/91-92 dated 01.11.1991 favouring Satish Kumar Gupta.
3)Certificate No. 34/91 dated 10.10.1991 favouring Atav Gupta.
4)Certificate No. 34/91 dated 12.10.1991 favouring Ankur Gupta.
5)Certificate No. 34/91 dated 10.10.1991 favouring Nidhi Gupta.
6)Certificate No. Nil dated 25.11.1991 favouring Sonal Goyal.
7)Certificate No. Nil dated 26.11.1991 favouring Mukesh Gulati.
8)Certificate No. Nil dated 25.11.1991 favouring S. P. Goyal.
9)Certificate No. Nil dated 15.11.1991 favouring Sonal Goyal.
10) Certificate No. Nil dated 26.11.1991 favouring CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 10 of 59 Beena Goyal.
11) Certificate No. 34/91 dated 30.10.1991 favouring V. K. Khanna.
However Smt. Kamla Devi Baid who was provided with one of the demand drafts in question, was not given any declaration or other certificate.
(ix) Investigation further allegedly disclosed that out of the aforesaid 11 certificates on the letter head of the Central Bank of India, six were typed on typewriter No. IT-211529 R.D. No. 145039-1476 make Facit whereas the remaining certificates were typed on typewriter bearing no. 573586 make Godrej. Investigation also revealed that Shri S. K. Aggarwal and Y. P. Tara typed the said certificates.
(x) It was further revealed in investigation that only 8 NRE accounts existed in the Central Bank of India at Daryaganj Branch during the relevant period and only NRE Account No. 131422 in the name of Shri Asgni Behl, Nutan Behl and Rajan Behl appeared in 2-3 bogus certificates of demand drafts issued to the beneficiaries. The respective account holder of NRE account numbers appearing in other bogus certificates were examined and they refused to have any knowledge of the beneficiary of the case.
CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 11 of 59(xi) It was also found that different persons received drafts and certificates favouring the beneficiaries and the persons from whom the different parties collected demand drafts and bogus certificates, through different channels ultimately contacted Shri J. K. Jain, Pawan S. Jain, S. K. Jain, Y. P. Tara and Janak Sharma. Out of these, Shri J. K. Jain and Shri Pawan Sain Jain were from Central Bank of India, Daryaganj Branch, Shri Y. P. Tara was an ex-employee of Central Bank of India, Shri Satish Kumar Jain was a Railway employee and Shri Janak Sharma was a private financial consultant.
(xii) Investigation further revealed that all the beneficiaries, after receiving their demand drafts from their concerned persons, deposited the same in their respective accounts in different banks at different places. The documents concerned with the different accounts of the different parties were seized and scrutinised which proved that the demand drafts in question were deposited in these accounts. The Branch Manager of the respective branches were examined who confirmed that demand drafts in question were credited in their respective accounts on different dates. They also confirmed that Nidhi Ativ, Ankur, Akansha, Mandeep Singh and Sonal Goyal were minors and their accounts were being operated by Shri Ajay Gupta, CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 12 of 59 Mohinder Singh Rekhi and Shri S. P. Goel and Shri Arun Gupta. But before they could get the benefits from Income Tax Authorities, the scandal was detected.
(xiii) Investigation further revealed that proceeds of the demand drafts in question were from C/D A/c No. 3024 and HSS A/c No. 17036 and on the deep scrutiny of statement of accounts of these account no's, it was found that the demand drafts in question were made the same day on which date the cash was deposited in these two fictitious accounts. Thus the beneficiaries or their respective guardians who were operating the accounts on their behalf made an attempt to convert black money into white money by taking the shelter of the notification of the Government of India regarding Remittances in Foreign Exchange (Immunities) Scheme, 1991 and thereby tried to cause loss of huge direct tax revenue by falsely and dishonestly showing the proceeds of demand drafts from NRE account.
5. Vide order dated 05.03.2002, charge was ordered to be framed against all the accused except Jaydev Tyagi (A-5) who expired during the course of proceedings (i.e. Jagdish Kumar Jain (public servant), Satish Kumar Jain, Y. P. Tara, Pawan Sain Jain (public servant), Ajay Kumar Gupta, Satish Kumar Gupta, S. P. Goel, Beena Goel, V. K. Khanna, Mukesh Gulati, Mahinder Singh and Arun Kumar Gupta u/s 120-B r/w. Sec. 420, 467, 468, 471 CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 13 of 59 IPC and under sec. 13(1)(d) r/w. Sec. 13(2) of P. C. Act, 1988) as under :
"That all of you during September to November, 1991 at Delhi/New Delhi, Bareiley and Panipat , were parties to criminal conspiracy, the common object of which was to cheat the Govt. of India, of the revenue (Income Tax) under the cover of The Remittances in Foreign Exchange (Immunities) Scheme, 1991, floated under sec.3 of the Remittances of Foreign Exchange and Investment in Foreign Exchange Bonds (Immunities and Exemptions) Act, 1991, by abusing the position of you Jagdish Kr. Jain, Pawan Sain Jain alongwith one Jai Dev Tyagi (since deceased), all public servants as employees of Central Bank of India Daryaganj, Delhi, by corrupt or illegal means, to obtain pecuniary advantage in the natures aforesaid, by opening of accounts no. 3024 and 17036, in fictitious names, by way of deposits of Indian Currency in cash, by issuance of bank drafts dt. 26.11.91 for Rs.1,50,000/- favouring you Mukesh Gulati, dt. 12.10.91 for Rs.2,08,500 in favour of Ankur Gupta (minor son of you Arun Kr. Gupta), dt. 25.11.91 for Rs.1,50,000/- in favour of you S. P. Goel, dt. 26.11.91 for Rs.1,50,000/- in favour of you Bina Goel, dt. 25.11.91 for Rs.50,000/- in favour of minor Sonal Goel (minor daughter of you S. P. Goel), dt. 14.10.91 for Rs. 3,90,750/- in favour of Aakanksha Gupta (minor daughter of you Ajay Kr. Gupta), dt. 1.11.91 for Rs.3,90,000/- in favour of you Satish Gupta, dt. 2.11.91 for Rs.1,48,000/- in favour of Mandip Singh (minor son of you Mahinder Singh), dt. 10.10.91 for Rs. 2,60,000/- in favour of Nidhi Gupta (minor daughter of you Arun Kr. Gupta), dt. 10.10.91 for Rs.2,50,000/- in favour of Ateev Gupta (minor son of you Ajay Kr. Gupta) and dated 30.10.91 for Rs. 3,40,000/- in favour of you V. K. Khanna, by issuance of forged certificates in favour of the said recipients/payees of demand drafts, falsely declaring the amounts being foreign remittances CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 14 of 59 received under the aforesaid scheme, out of which the certificates were actually used for cheating by you S. P. Goel and Bina Goel and for attempt to cheat by you V. K. Khanna, and Mukesh Gulati and were possessed by others with intent to cheat, and thereby committed an offence u/s 120-B r/w. Sec. 420, 467, 468, 471 IPC and under sec. 13(1)(d) r/w. Sec. 13(2) of P. C. Act, 1988 within my cognizance."
A-1 Jagdish Kumar Jain and A-4 Pawan Sain (public servants) were also directed to be charged u/s 13(1)(d) r/w Section 13(2) of PC Act, 1988 alongwith offence u/s 467 and 468 IPC.
Accused S. P. Goel (A-8) and accused Beena Goel (A-9) were stated to have derived actual pecuniary advantage and charge u/s 420 IPC was further directed to be framed against them.
It was further observed vide order dated 05.03.2002 that A-10 V. K. Khanna and A-11 Mukesh Gulati did make attempts to derive pecuniary advantage on the basis of forged certificate by presenting them before the Income Tax Authorities but before any advantage could enure in their favour, the forgery was detected and thus their attempt failed. As such, they were charged u/s 420 r/w Section 511 IPC.
It was further observed that the evidence placed before the Court by the prosecution does not indicate even an attempt to cheat on the part of A-6 Ajay Kumar Gupta, A-7 Satish Kumar Gupta, A-12 Mahinder Singh and A-13 Arun Kumar Gupta and as such no charge for cheating or attempt to cheat ought to be framed against them.
CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 15 of 59It was also observed that A-6 to A-13 i.e. A-6 Ajay Kumar Gupta, A-7 Satish Kumar Gupta, A-8 S. P. Goel, A-9 Beena Goel, A-10 V. K. Khanna, A-11 Mukesh Gulati and A-12 Mahinder Singh and A-13 Arun Kumar Gupta obtained certificates, valuable securities which were forged to their knowledge and they obtained the said certificates by depositing the corresponding demand drafts in their respective accounts which demonstrated prima facie that they intended to use the said certificates fraudulently or dishonestly as genuine and as such were also charged u/s 474 IPC.
6. Prosecution in support of its case examined 28 witnesses. It may be mentioned that PW-5 Shri B. N. Seth and PW-6 Ram Raj Bansal inadvertently were given the same number by the then Ld. Predecessor and have been re- numbered as PW-5A and PW-6A for the purpose of this judgment, to avoid any confusion in numbering of witnesses.
PW-1 Ram Chandra Tripathi (Sanctioning Authority) was the competent authority to appoint and remove Jagdish Kumar Jain (A-1), the then Deputy Chief Officer, Pawan Sain Jain (A-4) and Jaydev Tyagi (A-5 since deceased) and accorded the sanction for prosecution of the aforesaid three employees vide sanction order Ex.PW1/A. PW-2 Shri C. M. Satyabalan was working as Branch Manager during the relevant period in Central Bank of India, CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 16 of 59 Daryaganj, New Delhi. He detailed the guidelines with reference to circular of central office regarding the receiving of inward foreign remittances and proved the circular dated 04.10.1991 mark A, circular dated 09.10.1991 mark B and forwarding letter to Zonal Officer dated 25.11.1991 mark C. He further stated that account no., 3024 in the name of M/s Modern Engineering and Fabricators and another account no. 17036 in the name of Satish Kumar Joshi were not NRE accounts. He further identified the signatures of Jaydev Tyagi on current account opening form of Modern Engineering and Fabricators bearing account no. 3024 (Ex.PW2/B), the specimen signatures card Ex.PW2/A. He further identified the signatures of accused J. K. Jain on drafts Ex.PW2/C to Ex.PW2/F i.e. Draft no. 020563 dated 10.10.91 in favour of Nidhi Gupta for Rs.2,60,000/-. Draft no. 820564 dated 10.10.91 in favour of AtivGupta for Rs.2,50,000/-. Draft no. 020705 dated 30.10.91 in favour of V. K. Khanna for Rs.3,40,000/-. Draft no. 020719 dated 01.11.91in favour of Satish Gupta for Rs.3,90,000/-.
He further proved the following documents :
•certificate Ex.PW2/G in favour of Mandip Singh signed by O. P. Sharma who was working in the branch.
•Three certificates Ex.PW2/H to Ex.PW2/J favouring S. P. Goel, Sonal Goel and Beena Goel signed by accused J. K. Jain. •Declaration forms Ex.PW2/K, Ex.PW2/L, Ex.PW2/M, Ex.PW2/N in the name of S. P. Goel, Beena Goel, Mandip Singh and Smt. Sonal Goel signed by accused J. K. Jain.
•Extract of statement of account no. 3024 (Ex.PW2/O) signed by him. •Seizure memo Ex.PW2/P, Ex.PW2/Q bearing the signatures vide which the documents mentioned therein were submitted to IO Shri R. K. Chaddha. •He further identified signatures of Jaydev Tyagi on certificates Ex.PW2/R and Ex.PW2/S and stated that accused Y. P. Tara led the team to an institute CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 17 of 59 in Daryaganj from where he had got typed Ex.PW2/R and Ex.PW2/S. Further typing impression on six sheets were taken in his presence vide Ex.PW2/T to Y. PW-3 Ravi Kumar Madal who was working in the branch at the relevant time stated that he could identify the handwriting and signatures of accused J. K. Jain and Pawan Sain Jain (teller in the branch) and further proved the following documents :
•Seizure memo Ex.PW3/A vide which the documents were handed over to CBI officials.
•Demand draft no. 020962 dated 26.11.1991 favouring Mukesh Gulati for Rs. 1,50,000/- and 020961 dated 26.11.1991 favouring Beena Goel for Rs. 1,50,000/- (Ex.PW3/B & C).
•Detail log book bearing page no. 60, 61, 63, 65 (Ex.PW3/D) in the handwriting of Pawan Sain Jain.
•DD voucher dated 25.11.1991 (Ex.PW3/E) favouring Sonal Goel for Rs. 50,000/- in handwriting of Pawan Sain Jain.
•Certificate (Ex.PW3/F) dated 26.11.1991 bearing signatures of J. K. Jain regarding issuance of draft no. 020962 dated 26.11.1991 for Rs.1,50,000/- to Mukesh Gulati by debiting NRE account no. 17058. •Letter Ex.PW3/G in handwriting of J. K. Jain. •Specimen typewriter impression taken in his presence at ITO Ex.PW3/H1 to H5 alongwith specimen typewriting impression Ex.PW2/T to Y. •Seizure memo dated 03.12.1992 (Ex.PW3/I) vide which documents were handed over to IO.
PW-4 Anil Bhatnagar working as Clerk in Central Bank of India during 1991 proved the bank drafts Ex.PW4/A, Ex.PW2/D and Ex.PW2/C. •Bank draft for Rs.2,39,200/- favouring Kamla Devi Baid dated 31.10.91. •Bank draft for Rs.2,50,000/- favouring Ativ Gupta dated 10.10.91.CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 18 of 59
•Bank draft for Rs.2,60,000/- favouring Nidhi Gupta dated 10.10.91. •He further stated that IO had taken specimen signatures/writing of accused Satish Kumar Jain and Y. P. Tara in his presence as per Ex.PW4/B and Ex.PW4/C/1 to 37.
PW-5 Sadia Sahid deposed that in 1992 he was having saving account (No. 17058) in Central Bank of India, Daryaganj which was opened in 1991. He further stated that he did not know Mukesh Gulati and had not given a draft or cheque for Rs. 1,50,000/- to Mukesh Gulati from aforesaid account.
PW-6 Madan Lal Paul stated that Pawan Sain Jain gave his specimen writings mark S-105 to S-122 to the IO in his presence (Ex.PW6/A1 to A18).
PW B. N. Seth has been inadvertently again numbered as PW-5 by the then Ld. Predecessor and is re-numbered as PW-5A to avoid any confusion in numbering of witnesses. He stated that on 24.11.92 he had accompanied the CBI Officer to CR building wherein Shri Chaddha (from CBI) got some matter printed on a typewriter in his presence and he identified the signatures on specimen typewriting Ex.PW3/H1 and documents Ex.PW3/H2 to H5.
PW Ram Raj Bansal has been inadvertently again numbered as PW-6 by the then Ld. Predecessor and is re- numbered as PW-6A. He stated that on 13.11.92 he was called in CBI Office and in his presence handwriting of one person was CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 19 of 59 taken on some sheet (Ex.PW4/C2 to Ex.PW4/C37).
PW-7 Shri O. P. Sharma posted as Sub Accountant in Daryaganj in Central Bank of India in 1991 proved the following drafts bearing his signatures :
•DD No. 020563 amounting to Rs.2,60,000/- (D-10) Ex.PW7/A. •DD No.020564 amounting to Rs.2,50,000/- (D-100) Ex.PW7/B. •DD No. 020933 amounting to Rs.1,50,000/- (D-109) Ex.PW7/C. •DD No. 020710 amounting to Rs.2,39,200/- (D-99) Ex.PW7/D. •DD No. 020594 amounting to Rs.2,08,500/- (D-97) Ex.PW7/E. •DD No. 020932 amounting to Rs.50,000/- (D-91) Ex.PW7/F. PW-8 O. P. Verma working as Clerk cum Cashier in Daryaganj branch of Central Bank of India during October- November, 1991 proved the pay-in slips Ex.PW8/A to Ex.PW8/C bearing his signatures whereby he received the cash vide these pay slips and were forwarded to senior officers.
PW-9 Shri D. N. Makol posted as Sub Accountant in Central Bank of India, Daryaganj branch in 1991 proved the following documents :
•Credit voucher dated 31.10.91 for issuing the draft by Modern Engineering and Fabricators (Ex.PW9/A) which was passed by Passing Officer Mr. Chahal and on the basis of said credit voucher, DD Ex.PW7/D was issued in favour of Kamla Devi Baid. The draft money was stated to be received from account of Modern Engineering and Fabricators.
•Draft Ex.PW3/D prepared on basis of credit voucher Ex.PW9/B. CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 20 of 59 The amount was debited from Account No. HSS 17036. •Draft Ex.PW3/C prepared on basis of credit voucher Ex.PW9/C. The amount had been debited from account no. HSS 17036 •Draft Ex.PW9/D prepared on basis of credit voucher Ex.PW3/D. The amount had been debited from CD account of Modern Engineering and Fabricators.
•Draft Ex.PW9/F prepared on basis of credit voucher Ex.PW3/E. •Draft Ex.PW7/C prepared on basis of credit voucher Ex.PW3/G. PW-10 Ramesh Chand posted as Chief Cashier in Daryaganj Branch of Central Bank of India from 1989 to 1993 identified his signatures on production cum seizure memo Ex.PW2/P. He further identified his signatures on pay-in slips Ex.PW8/A, Ex.PW10/A, Ex.PW10/B, Ex.PW3/E, Ex.PW8/B and Ex.PW10/C. PW-11 Shri Amrit Prakash Singh stated that he handed over bunch of leave application in admitted writing of Satish Kumar Jain working as Senior TCR in Northern Railway to Inspector Rajiv Chaddha vide production cum seizure memo Ex.PW11/A. PW-12 Shri Amar Singh Shami stated that the aforesaid 27 leave applications of S. K. Jain were sealed and handed over to A. P. Singh (PW-11) for handing over to Inspector of CBI. He further identified the handwriting and signatures of S. K. Jain and the application were accordingly exhibited as Ex.PW12/A to CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 21 of 59 Ex.PW12/27.
PW-13 Krishan Kumar stated that typewriting specimen Ex.PW2/T, Ex.PW2/U, Ex.PW2/V, Ex.PW2/W to Ex.PW2/Y were taken in his presence. He further stated that typewriter make FACIT-IT-211529 was used by him in the shop owned by him and was running the typing college under the name and style of M/s Batra Commercial College. He further stated that certificates Ex.PW2/G, Ex.PW2/13A, Ex.PW2/R and Ex.PW13/B were typed from the typewriter of his college.
PW-14 Ramesh Grover stated that specimen handwriting and signatures of three persons were taken in his presence. He further proved the specimen handwriting sheets Ex.PW14/A1 to A43 containing handwriting and specimen signatures of Satish Kumar Jain; specimen handwriting and signatures sheet written by J. K. Jain Ex.PW14/B1 to Ex.PW14/B7; specimen handwriting and signatures of J. K. Jain Ex.PW14/C1 to C10 and specimen handwriting and signatures of Jaydev Tyagi Ex.PW14/D1 to Ex.PW14/D4.
PW-15 P. N. Handa proved the specimen handwriting sheets Ex.PW6/A1, A9 and A18 of Pawan Sain Jain taken in his presence.
PW-16 Shri Kamal Dutt Bhagral stated that accused Y. P. Tara was known to him as he (Kamal Dutt) had worked under Y. P. CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 22 of 59 Tara, Senior Manager in Nizamuddin branch of Central Bank of India. After seeing account opening form of M/s Modern Engineering and Fabricators (Ex.PW2/T), he stated that this account was introduced by Y. P. Tara as Director of M/s Sears Leasing Industries Ltd. Holder of Account No. 3005 and further identified signatures of Y. P. Tara.
PW-17 D. N. Kapoor stated that he had witnessed the search proceedings on 02.04.92 at different places at requisition of CBI. He further proved the following documents: •Search cum seizure memo Ex.PW17/A with respect to search conducted at G-263, Rishi Nagar.
•Production cum seizure memo Ex.PW17/B with respect to search conducted at house of Satish Kumar Jain at 167/1, Railway Colony, Minto Bridge, New Delhi.
•Production cum seizure memo Ex.PW17/C with respect to search conducted at house of S. K. Aggarwal 3/90, Nehru Gali, Vishwas Nagar, Shahdara. The five cheques taken into possession by the IO were further marked Ex.PW17/D1 to D5.
•The documents seized vide Ex.PW17/B were further marked as Ex.PW17/E to I and Ex.PW17/J1 to J7.
PW-18 G. K. Mathur working as Officer in Bank of Baroda Shyam Ganj Branch, Bareilley from September, 1991 to 1998 stated that on 01.06.92 he handed over the documents to CBI vide production cum seizure memo Ex.PW18/A. He further identified the attested copy of account opening form of Sonal Goel, attested copy of deposit slip, attested copy of statement of account no. 2966 of Sonal Goel and the same were marked as CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 23 of 59 Mark PW18/1 to 3. The further examination of the witness was deferred for want of original documents. The witness does not appear to have been further examined by prosecution and as such the evidence of this witness cannot be read on record.
PW-19 Inspector Tej Pal Singh posted in ACB, CBI stated that he conducted the search at Goel Industries, Shyam Ganj, Bareilley, U.P. on 02.04.02 and 126 Civil Lines, Bareilley, U.P. at the residence of S. P. Goel on 03.04.02. He further proved the seizure memo Ex.PW19/A and Ex.PW19/B vide which the various documents were taken on record.
PW-20 Shri Ravi Kant residing in neighbourhood of accused J. K. Jain stated about 13-14 years ago he had met J. K. Jain and was asked to go to Hotel President at Daryaganj as he would be coming. On reaching Hotel President, Satish Kumar Jain, Y. P. Tara and Janak Sharma were present there. Shri Y. P. Tara handed over one form to Janak Sharma for filling up the same. Since Shri Janak Sharma stated that he was having pain in his hand and cannot write, Shri Y. P. Tara gave the said form to him for filling. Shri Y. P. Tara also handed over one form which was already filled and asked to copy the same. He further identified the form filled by him Ex.PW20/A (D-76).
PW-21 Jay Prakash Narain working in Kashmere Gate Branch of Central Bank of India from March,1989 to October, 1992 stated that he had handed over the documents to CBI officials as CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 24 of 59 per production cum seizure memo Ex.PW21/A. He further identified and proved the following documents : •Deposit slip no. 753280 dated 04.11.91 for depositing demand draft no. 20735 for Rs.1,48,200/- in the account of Mandip Singh Rekhi, account No. 13318 duly acknowledged by N. R. Jindal (Ex.PW21/B). •Specimen signatures card and account opening form for opening account no . 13318 of Mandip Singh Rekhi through guardian Mahinder Singh Rekhi (Ex.PW21/C).
•The declaration form on behalf of the father of the minor which was initialed at the time of handing over the document to IO (Ex.PW21/E). •Demand draft no. 20735 Ex.PW9/D which was deposited in the account of Mandip Singh.
PW-22 Jagdev Ram stated that in the year 1992 he had visited alongwith the CBI team to the house of S. P. Goel at Civil Lines, Bareilley. He further identified his signatures on search cum seizure memo Ex.PW19/B alongwith the documents seized during the search i.e. D-65 (Declaration Form) Ex.PW22/A1, D75 (Declaration Form) Ex.PW22/A2, D76 (Declaration Form) Ex.PW20/A, bank certificate D78 Ex.PW22/A3, D80 bank certificate Ex.PW2/H, D81 bank certificate Ex.PW2/I, D82 bank certificate Ex.PW2/J and D83 Declaration Ex.PW2/N. PW-23 Raj Kumar stated that Shri Janak Sharma was his neighbour and in 1991 Shri Janak Sharma told him that he is having many parties residing in foreign countries and enquired if there are any parties for receiving gifts under Foreign Exchange Immunity Scheme. He further stated that he (Raj Kumar) introduced Janak Sharma with Sushil Bhasin. Further, Shri Janak CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 25 of 59 Sharma introduced Y. P. Tara with Sushil Bhasin. He further stated that one Sarvesh Kumar Aggarwal dealing in the share business having office opposite to his office in connivance with Satish Jain and J. K. Jain got prepared some drafts. He further deposed that Y. P. Tara and Janak Sharma had come to his office to return the amount of commission received by them.
PW-24 Madan Lal Sharma stated that he was posted as Clerk dealing with cash receipt in Daryaganj Branch of Central bank of India for about 4-5 years. He further proved the following documents :
•Receipt Ex.PW3/E bearing his signatures issued to the party on receiving an amount for preparation of draft for Rs.50,000/- in the name of Sonal Goel as per application dated 25.11.91. •Pay-in slip dated 25.11.91 regarding deposit of Rs.1,50,000/- in account no. 17036 in the name of Satish Kumar Joshi (Ex.PW10/A). He further stated that said amount was received by him and issued receipt to the party and the pay-in slip was forwarded to the concerned officer.
•Pay-in slip dated 25.11.91 regarding deposit of Rs.200/- in account no. 17036 in the name of Satish Kumar (Ex.PW10/B). He further stated that said amount was received by him and issued receipt to the party and the pay-in slip was forwarded to the concerned officer.
•Pay-in slip dated 31.10.91 regarding deposit of Rs.2,37,000/- in account no. 3024 in the name of Modern Engineering and Fabricators (Ex.PW24/A). He further stated that said amount was CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 26 of 59 received by him and issued receipt to the party and the pay-in slip was forwarded to the concerned officer.
•Pay-in slip dated 01.11.91 regarding deposit of Rs.3,91,000/- in the name of Modern Engineering and Fabricators (Ex.PW24/B). He further stated that said amount was received by him and issued receipt to the party and the pay-in slip was forwarded to the concerned officer.
PW-25 Rajeev Kumar Chaddha (IO) stated that investigation of the case was entrusted to him on 31.03.92. Apart from the other investigation, he had collected the GEQD expert opinion on the questioned writings and obtained the sanction for prosecution in respect of accused persons from the competent authority. On 31.03.94, the investigation was stated to have been transferred to Shri Rajesh Kumar, Inspector on his promotion. He further stated that he had seized certified copy of ledger of account no. HSS 17036 of Satish Kumar Joshi from Central Bank of India, Daryaganj (Ex.PW25/A), Certified copies of statement of account of S. P. Goel for the period 01.01.91 to 31.12.91 (Ex.PW25/E2), certified copy of statement of account of Smt. Beena Goel of SB Account No. 1296 maintained at Central Bank of India, Shyam Ganj, Bareilley (Ex.PW25/E3), certified copy of account no. 13422 (NRE) of Ashmi Behl and Nutan Behl from Central Bank of India, Daryaganj (Ex.PW25/E4), vouchers Ex.PW25/F1 to F3, cheque Ex.PW25/F4, voucher Ex.PW25/F5, cheque Ex.PW25/F6 . He further stated that he had seized certified copy of account opening form, statement of account CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 27 of 59 pertaining to account nos. 14616 in the name of Ms. Akansha Gupta minor, and account no. 12679 in the name of Master Ativ Gupta from Canara Bank, Haus Khas Market Branch from Shri C. Badri, Senior Manager, Canara Bank, Haus Khas, New Delhi who had signed before him on the photocopies in token of attestation and correctness of copies (Collectively Ex.PW25/F7); letter dated 23.12.91 on production by Senior Manager, Canara Bank, Haus Khas (Ex.PW25/F8). He further identified letter dated 20.12.91 bearing signatures of C. M. Satyabalan (Ex.PW25/F9) and also proved search cum seizure memo Ex.PW25/G, search list dated 02.04.92 (Ex.PW25/H), seizure memo dated 02.04.92 (Ex.PW25/I), search cum seizure memo (Ex.PW25/J), search memo dated 02.04.92 (Ex.PW25/K), production cum seizure memo (Ex.PW17/B, Ex.PW17/C). He further stated that he collected handwritten letter dated 18.12.91 (D-122) of Ajay Kumar Gupta Ex.PW25/L, declaration forms (D-123) collectively Ex.PW25/M, another handwritten letter dated 18.12.91 (D-124) of Ajay Kumar Gupta (Ex.PW25/N); declaration forms (D-123) collectively Ex.PW25/P; statement of account of S. P. Goel from 11.01.91 to 03.10.91 (D-134) Ex.PW25/Q; specimen signatures card of S. P. Goel of account no. HSS 537 (Ex.PW25/R); D-136 & 137 (Ex.PW25/S1 & S2); D-138 to 146 and 150 (Ex.PW25/T1 to T10); document Mark A and Mark B (Ex.PW25/U1 & U2).
PW-26 Dr. B. A. Vaid Govt. Examiner, Questioned Document, Shimla proved his report as to the questioned handwriting. He further stated that the recorded opinion no.
CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 28 of 59CX-10/93 dated 29.01.93 (Ex.PW26/B) bears his signatures and also of Shri S. K. Saxena, the then Deputy GEQD who had also independently examined the documents and came to the same conclusion. The reasons or grounds for giving the reasons were further proved as Ex.PW26/C.
7. In the statement u/s 313 Cr.P.C. accused denied the prosecution case. Accused further sought opportunity to lead evidence in defence. Accused Beena Goel took a stand that she is a housewife and neither participated in any business, nor was responsible for carrying day to day activities of the business and did not make any request seeking any facility/benefit under the Amnesty scheme at any time. Further, accused Beena Goel examined herself in defence as DW-1. Also DW-2 Shri Mahesh Kala was examined in defence on behalf of accused Pawan Sain Jain.
DW-1 Smt. Beena Goel (accused) stated that she was not associated with the business carried by her husband S. P. Goel and occasionally used to visit the office. Further she has never been associated with the account books or any other activity in the office of her husband S. P. Goel who was running the business. She also denied having met any bank official including Pawan Sain Jain or any other person connected with this case at Delhi or Bareilley during 1991. She further took a stand that she might have signed some cheques or documents at the instance of her husband Shri S. P. Goel without being aware as to the nature of the document.
CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 29 of 59DW-2 Shri Mahesh Kala, Branch Manager, Central Bank of India, Daryaganj produced the record pertaining to the duty list of teller as per bank record. He further stated that duty of teller was to pass a cheque upto amount of Rs.3,000/- but he was not aware if a teller could issue the tax exemption certificate, declaration etc. He further stated that bank draft was used to be prepared by the teller under the instructions of senior officers.
8. Counsels for accused assailed the case of prosecution on the grounds that investigation of this case was transferred on 31.03.1994 from Shri Rajiv Kumar Chaddha (IO) to Inspector Rajesh Kumar, on transfer and promotion but prosecution failed to examine the IO Inspector Rajesh Kumar. It was also contended that since prosecution failed to examine Shri Roopak Kumar Dutta, SP, CBI at whose instance FIR was formally registered on source information, the case against the accused has not been conclusively proved.
Shri Y. P. S. Ahluwalia, Advocate for accused Pawan Sain Jain further assailed the case of prosecution on the ground that no evidence has been led to show that accused Pawan Sain Jain conspired with the other public servants i.e. Jagdish Kumar Jain (deceased) Deputy Manager or with Shri Jaydev Tyagi (A-5) who were responsible for issuing and signing the certificates under the Foreign Exchange Remittance Scheme. It was also contended that even no conclusive evidence has been led to show CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 30 of 59 that accused was known to the other co-accused or the beneficiaries under the scheme or had obtained any benefit out of the aforesaid transactions.
It was further contended on behalf of all the accused that there is absolutely no evidence to show the meeting of minds between accused Pawan Sain Jain or any other co-accused.
Counsel for accused Pawan Sain Jain further contended that only two circumstances were relied by the prosecution in the charge sheet to show the complicity of accused Pawan Sain Jain. The first piece of evidence was the filling up of DD voucher dated 25.11.91 favouring Sonal Goel for Rs.50,000/- Ex.PW3/E. With reference to the same, it was urged that the said filling of voucher itself is insufficient to fix liability on the part of the accused as the same could have been filled on behalf of any person approaching the bank and even the said voucher (Q-38) was opined to be in handwriting of Satish Kumar Jain. It was further contended that there was no evidence of any nature to show that any amount was deposited by accused Pawan Sain Jain.
The second piece of evidence against the accused is pointed out to be the endorsement made above the stamped initials of J.K. Jain on Ex.PW2/N i.e. declaration form under Remittance in Foreign Exchange (Immunities ) Scheme, 1991 filled on behalf of beneficiary Sonal Goel, daughter of Beena Goel and S.P. Goel for the remittance amount of Rs.50,000/-, bearing the date of receipt as 25.11.91. The said endorsement consisted of the words "issued under foreign exchange remittance CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 31 of 59 scheme" (Ex.PW2/N) and is stated to be in handwriting of Pawan Sain Jain. Counsel for accused contended that even if the said endorsement is admitted, the same is insufficient to infer the conspiracy between the accused as admittedly the issuing authority was J. K. Jain and the Accountant and the endorsement was simply made at the asking of the officers in routine course of duty. It is submitted that the certificate on the basis of the declaration had been issued by co-accused J. K. Jain and there was no evidence led by the prosecution to show that accused Pawan Sain Jain was entrusted with any particular duty to check the relevant accounts.
Counsel for accused Pawan Sain Jain also urged that even the sanction granted by the Sanctioning Authority PW-1 Ram Achal Tripathi was without application of mind as he admitted during cross-examination that draft sanction order was placed before him at the time of passing the sanction order. In support of the contentions, counsel for accused further relied upon :
1.AIR 1987 Supreme Court 955 Param Hans Yadav and Sadanand Tripathi vs. State of Bihar.
2.1996 Crl. L.J. 3237 S. Gopal Reddy vs. State of Andhra Pradesh.
3.2009 Crl. L.J. 3930 S. V. L. Murthy vs. State. 4.1999 III AD (Delhi) 177 Bhisham Kumar vs. State 5.1985 Crl.L.J. 1971 Md. Tafazul Rahman vs. State of Orissa 6.1995 JCC 711 Khushi Ram vs. State On the other hand, Ld. P.P. for CBI relied upon the CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 32 of 59 testimony of witnesses recorded during trial as well as the fact that accused Ajay Kumar Gupta (A-6), Satish Kumar Gupta (A-7), V. K. Khanna (A-10), Mukesh Gulati (A-11), Mahinder Singh (A-12) and Arun Kumar Gupta (A-13) were convicted on their pleading guilty vide judgement dated 05.03.2002.
9. I have heard counsel for accused, ld. PP for CBI and perused the record carefully. To appreciate the contentions raised on behalf of accused, scope of Section 13 PC Act, 1988, Section 120B IPC and Section 10 of the Evidence Act may be noticed.
Section 13 of the Prevention of Corruption Act, 1988 provides for criminal misconduct by public servant. The offence of criminal misconduct by a public servant can be said to have been committed in terms of Section 13(1)(d) (ii&iii) if the public servant abuses his position and obtains for himself or any other person any valuable thing or pecuniary advantage; or while holding office as public servant obtains for any person any valuable thing or pecuniary advantage without any public interest. Sub-Section 2 of Section 13 of the Act provides that any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine.
10. Criminal conspiracy has been defined in Section 120A of the Indian Penal Code and Section 120B provides punishment for the same. A conspiracy must be put to action, in as much as, so long a crime is generated in the mind of the CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 33 of 59 accused, it does not become punishable. The offence is said to have been committed only when the thoughts take concrete shape of an agreement to do or cause to be done an illegal act or an act although not illegal by illegal means. The gist of the offence of the conspiracy lies in agreement being the essential element and mere knowledge of the plan is not per se enough. It also needs to be taken into account that the acts or the conduct of the parties must be cautious and clear enough to infer their concurrence as to common design and its execution. Also the incriminating circumstances must form a chain of events from which conclusion about the guilt of the accused could be drawn.
It is also well settled that Conspiracy is hatched in private and in secrecy for which direct evidence would rarely be available. It is not necessary that each member to a conspiracy must know all the details of the conspiracy. It has thus to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew leading to the commission of a crime by one or more persons to the agreement, of that offence.
In the aforesaid context, observations of the Hon'ble Apex Court in Saju v. State of Kerala, (SC) 2000(4) R.C.R.(Criminal) 747 : 2001 AIR (SC) 175 : 2001 CriLJ 102 may also be adverted to at this stage.
"To prove the charge of criminal conspiracy the prosecution is required to establish that two or more persons had agreed to do or caused to be done, an illegal act or an act which is not illegal, by illegal means. It is immaterial whether the illegal act is the ultimate object of such crime or is merely incidental to that object. To attract the applicability of Section 120-B it has to be proved that all the accused had the intention and they had agreed to commit the crime. There is no doubt that conspiracy is hatched in private and in secrecy for which direct evidence would CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 34 of 59 rarely be available. It is also not necessary that each member to a conspiracy must know all the details of the conspiracy. This Court in Yash Pal Mittal v. State of Punjab, AIR 1977 SC 2433 held :
"The offence of criminal conspiracy under Section 120-A is a distinct offence introduced for the first time in 1913 in Chapter V-A of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co- conspirators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes mis-fire or over-shooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. The significance of criminal conspiracy under Section 120-A is brought out pithily by this Court in EG Barsay v. The State of Bombay, 1962(2) SCR 195 at p. 229 thus : "The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may be liable".
The scope of Section 10 of the Evidence Act may also be referred to at this stage as it has been contended on behalf of accused that the evidence against the co-accused cannot be considered against the accused facing trial in the present case. The observations made by Hon'ble Apex Court in para 7 of Saju v. State of Kerala, (SC)(Supra) may be further briefly referred.
"In a criminal case the onus lies on the prosecution to prove affirmatively that the accused was directly and personally connected with the acts or omissions attributable to the crime committed by him. It is settled position of law that act or action of one of the accused cannot be used as evidence against other. However, an exception has been carved out under Section 10 of the Evidence Act in the case CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 35 of 59 of conspiracy. To attract the applicability of Section 10 of the Evidence Act, the Court must have reasonable ground to believe that two or more persons had conspired together for committing an offence. It is only then that the evidence of action or statement made by one of the accused could be used as evidence against the other. This Court in Kehar Singh and others v. The State (Delhi Admn.), AIR 1988 SC 1883 has held :
"Section 120-A provides for the definition of criminal conspiracy and it speaks of that when two or more persons agree to do or cause to be done an act which is an illegal act and Section 120-B provides for the punishment for a criminal conspiracy and it is interesting to note that in order to prove a conspiracy it has always been felt that it was note easy to get direct evidence. It appears that considering this experience about the proof of conspiracy that Section 10 of the Indian Evidence Act was enacted. Section 10 reads : "Things said or done by conspiration in reference to common design
- when there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, 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 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."
This Section mainly could be divided into two : the first part talks of where there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, and it is only when this condition precedent is satisfied that the subsequent part of the Section comes into operation and it is material to note that this part of the Section talks of reasonable grounds to believe that two or more persons have conspired together and this evidently has reference to Section 120-A where it is provided "When two or more persons agree to do, or cause to be done". This further has been safeguard by providing a proviso that no agreement except an agreement to commit an offence shall amount to criminal conspiracy. It will be therefore necessary that a prima facie case of conspiracy has to be established for application of Section 10. The second part of Section talks of anything said, done or written by any one of such persons in reference to the common intention after the time when such intention was first entertained by any one of them is relevant fact against each of the persons believed to be so conspiring as well for the purpose for proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. It is clear that this second part permits the use of evidence which otherwise could not be used against the accused person. It is well settled that act or action of one of the accused could not be used as evidence against the other. But an exception has been carved out in Section 10 in cases of conspiracy. The second part operates only when the first part of the Section is clearly established i.e. there must be reasonable ground to believe that two or more persons have conspired together in the light of the language of Section 120-A. It is only then the evidence of action or statements made by one of the accused, could be used as evidence against the other"......
9. It has thus to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew leading to the commission of a crime by one or more persons to the agreement, of that offence. Besides the fact of agreement the necessary mens rea of the crime is also required to be established."
CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 36 of 5911. In the aforesaid background, reverting to the facts of the present case, it may be noticed that A-1 Jagdish Kumar Jain (Deputy Chief Officer, Central Bank of India) and A-5 Jaydev Tyagi (Sub-Accountant, Central Bank of India) have already expired. Out of the three public servants, the only surviving accused facing the trial is Pawan Sain Jain (A-4) who was posted as Clerk during the aforesaid period.
It needs to be observed that account no. 3024 in the name of M/s Modern Engineers & Fabricators was opened through proprietor described as Raj Kumar on introduction by one Shri Y. P. Tara (A-3), an ex-employee of the bank and proprietor of M/s Sears Leasing Industries Ltd. Shri Y. P. Tara absconded during the course of proceedings. In specific, no role has been ascribed to accused Pawan Sain Jain in the evidence, so far as opening of this account is concerned.
It is further the case of the prosecution that another account no. 17036 was opened in the name of one Satish Kumar Joshi. The prosecution alleges that owner of account no. 17036 was fictitious and non existing person and account opening form and specimen signatures were made by A-4 Pawan Sain Jain impersonating as Satish Kumar Joshi while A-2 Satish Kumar Jain (Railway Ticket Collector, Northern Railways) had filled up credit vouchers. Accused Satish Kumar Jain also expired during trial. The IO during the course of arguments was specifically directed to point out in case any document, as referred to above, bearing signatures of Pawan Sain Jain impersonating as Satish Kumar Joshi exists on record which was forwarded for opinion of CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 37 of 59 handwriting expert to consider if the signatures had been fabricated by Pawan Sain Jain impersonating as Satish Kumar Joshi. However, it was admitted by ld. P.P. assisted by IO that the account opening form pertaining to account no. 17036 i.e. D-138 does not appear to have been forwarded for opinion of handwriting expert and no other specimen signature card appears to be separately filed.
In view of above, so far as the opening of the fictitious account no. 17036 is concerned, no evidence has been pointed out to link accused Pawan Sain Jain (A-4) to the opening of account. It is not the case of the prosecution that accused Pawan Sain Jain was responsible as part of his duties for the opening of the said accounts and as such it may be difficult to assume that he was in league with the other co-accused (public servants) in the opening of said accounts.
12. To further assess the case of prosecution against accused, the factual position with respect to the drafts issued from the said accounts in favour of the co-accused (beneficiaries) may be noticed.
It may be observed that certain deposits came to be made in the said two account nos. 17036 and 3024 and thereafter seven bank drafts were issued against account no. 3024 and five bank drafts were issued by way of debit against account no. 17036. Same may be detailed as under :
Account No. 17036 i. Draft dated 26.11.91 for Rs.1,50,000/- in favor of Mukesh Gulati (A-11).
ii. Draft dated 12.10.91 for Rs.2,08,500/- in favour of Ankur Gupta (minor child of CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 38 of 59 A-13 Arun Kumar Gupta).
iii. Draft dated 15.11.91 for Rs.1,50,000/- in favour of S. P. Goel (A-8).
iv. Draft dated 26.11.91 for Rs.1,50,000/- in favour of Beena Goel (A-9).
v. Draft dated 25.11.91 for Rs.50,000/- in favour of Sonal Goel (minor daughter of A-8 S. P. Goel).
Similarly, seven drafts issued against account no. 3024 are as under :-
i.34/1571 dated 14.10.1991 of Rs.3,90,750/- for Akanksha Gupta.
ii.34/1684 dated 01.11.1991 of Rs.3,90,000/- for Satish Kumar Gupta.
iii.34/1700 dated 02.11.1991 of Rs. 1,48,200/- for Mandeep Singh.
iv.34/1528 dated 10.10.1991 for Rs.2,60,000/- for Nidhi Gupta.
v.34/1529 dated 10.10.1991 of Rs.2,50,000/- for Ativ Gupta.
vi.34/1670 dated 30.10.1991 of Rs.3,40,000/- for V. K. Khanna.
vii.34/1675 dated 31.10.1991 of Rs.2,39,200/- for Kamla Devi Baid.
It may also be noticed that on the basis of aforesaid drafts, 11 bank certificates purportedly under the aforesaid scheme were issued, as detailed under :-
i. Certificate dated 01.11.91 in favor of Satish Kumar Gupta (A-7).
ii. Certificate dated 02.11.91 in favour of minor Mandip Singh (Son of A-12 Mahinder Singh).
iii. Certificate dated 10.10.91 in favour of Ativ Gupta (minor son of A-6 Ajay Kumar Gupta).
iv. Certificate dated 12.10.91 in favour of Ankur Gupta (minor son of A-13 Arun Kumar Gupta).
v. Certificate dated 10.10.91 in favour of Nidhi Gupta (Minor daughter of A-13 Arun Kumar Gupta).
vi. Certificate dated 25.11.91 in favour of Sonal Goel (minor daughter of A-8 S. P. Goel).
vii. Certificate dated 25.11.91 in favor of Mukesh Gulati (A-11).
viii. Certificate dated 25.11.91 in favour of S. P. Goel (A-8).
CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 39 of 59ix. Certificate dated 15.11.91 in favour of Sonal Goel (minor daughter of A-8 S. P. Goel).
x. Certificate dated 26.11.91 in favour of Beena Goel (A-9).
xi. Certificate dated 30.10.91 in favour of V. K. Khanna (A-10).
It needs to be appreciated that the drafts were issued on the same dates on which the amounts were deposited in the two accounts which were not NRE accounts and the remittances were not made on foreign exchange. The 11 certificates which had been issued, on face of record were false and issued fraudulently and dishonestly to enable the respective claimants to seek exemption under the scheme. The said certificates were issued under the signatures of accused J. K. Jain (since deceased) as opined by the handwriting expert. So far as accused Pawan Sain Jain is concerned, he has been linked to the conspiracy by the prosecution allegedly on the ground that he had filled debit voucher dated 25.11.91 (Ex.PW3/E) favouring Sonal Goel amounting to Rs.50,000/- in his handwriting. The accused is also stated to have made endorsement on the declaration form under the Remittances in Foreign Exchange (Immunities) Scheme, 1991 filled in the name of Sonal Goel to the effect "issued under the Foreign Exchange Immunities Scheme, 1991" though it was stamped and signed by the Branch Manager J. K. Jain and the Accountant.
Counsel for the accused has contended that mere filling of DD voucher dated 25.11.91 in name of Sonal Goel by accused Pawan Sain Jain is not sufficient to conclusively hold that accused was in conspiracy with the co-accused.
CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 40 of 59Perusal of Ex.PW3/E i.e. DD voucher in favour of Sonal Goel reveals that the aforesaid document Ex.PW3/E was forwarded for examination of handwriting expert and the handwritten portion was marked as Q-38. As per the opinion (Ex.PW26/B), the marked Q-38 appears to be in the handwriting of Satish Kumar Jain whose specimen handwriting is marked as S-1 to S-43 by the prosecution. As such, the filling up of the said form has not been proved by accused Pawan Sain Jain on record.
The only other piece of evidence which is left out against the accused is the endorsement at Q-96 referred to above on the declaration form in name of Sonal Goel Ex.PW2/N. Perusal of record shows that the declarations which have been issued and placed on record bear the stamp and signatures of the Accountant and Manager. There is no endorsement over the stamp on declaration form Ex.PW22/A2 in favour of Beena Goel and on Ex.PW22/A1 in favour of S. P. Goel. However, declaration form in favour of Mandip Singh Ex.PW2/M bears an endorsement alongwith stamp and signatures of Branch Manager and Accountant. An endorsement similarly exists on the declaration form Ex.PW20/A in favour of Sonal Goel. As such, it appears that though the stamping alongwith signatures was made on all the declaration forms by the Branch Manager and the Accountant but the endorsement issued under the Remittances in Foreign Exchange Immunity Scheme, 1991 was made on some of the forms. There does not appear to be a consistent requirement that the endorsement was required to be made for availing the benefit under the Scheme as a separate certificate was also required to CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 41 of 59 be issued and a declaration itself specified boldly on the form that it was a declaration under the Remittances in Foreign Exchange (Immunities) Scheme, 1991. It is only on one declaration form wherein the endorsement Q-96 is stated to be in the handwriting of accused Pawan Sain Jain though the stamp bears the signatures of Branch Manager and the Accountant. There is no evidence linking the accused Pawan Sain Jain to the issuance of the 'certificates' based on the declaration in specific in any manner. The accused has further not been ascribed with any other role in the transactions made by the beneficiaries except as pointed out above. The defence of the accused that the same may have been made at the asking of the officer concerned on the account of work load or in official exigencies cannot be ruled out. It may not be safe to pin down the accused merely on the basis of a solitary endorsement referred to above which is otherwise explainable in absence of any other circumstance linking the accused to the conspiracy. In the facts and circumstances, the prosecution has failed to prove beyond reasonable doubt in case the accused Pawan Sain Jain was a party to the conspiracy with the co-accused.
13. The counsel for accused Pawan Sain Jain has also challenged the sanction granted by the sanctioning authority and has further relied upon 1999 III AD (Delhi) 177 Bhisham Kumar vs. State and 1985 Crl.L.J. 1971 Md. Tafazul Rahman vs. State of Orissa to contend that the sanction is vitiated since the sanctioning authority signed the draft sanction order given by CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 42 of 59 Vigilance Department.
Perusal of record reveals that PW-1 Shri Ram Achal Tripathi, General Manager deposed that he had accorded sanction for prosecution Ex.PW1/A after going through the documents and statements of witnesses besides police report furnished to him by the CBI office and after going through the same. During cross- examination, he admitted that the draft sanction order was placed before him but he clarified that the same was examined by him before signing the same alongwith statements. I am of the considered view that merely because the draft sanction order was placed by the Vigilance Department, it cannot be held that the same was mechanically signed as the sanctioning authority specifically stated during the short cross-examination that the documents were gone through prior to grant of sanction. There is nothing on record to suggest that the sanctioning authority failed to take into consideration the entire material placed before it. The Authorities cited by the counsel for accused are distinguishable on facts as therein on the basis of the evidence on record the Court was of the opinion that the sanctioning authority had also not taken into consideration the entire material placed for consideration for grant of sanction. The said contention has been referred since the submissions were made before this Court though on merits it has been already been observed that the prosecution has failed to bring home the charge against accused Pawan Sain Jain beyond reasonable doubt. Accused Pawan Sain Jain is accordingly acquitted.
CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 43 of 5914. It is pertinent to observe that accused Ajay Kumar Gupta (A-6), Satish Kumar Gupta (A-7), V. K. Khanna (A-10), Mukesh Gulati (A-11), Mahinder Singh (A-12) and Arun Kumar Gupta (A-13) stand convicted for conspiracy u/s 120B r/w Section 420, 467, 468, 471 IPC and u/s 13(1)(d) r/w 13(2) of PC Act, 1988 as well as u/s 474 IPC on their pleading guilty at the stage of charge. The said accused had also obtained certificates under the Scheme as by the present accused Beena Goel and S. P. Goel who are related as husband and wife. The same also reflects that it was admitted by the convicted co-accused that the accounts from which the amount was remitted by bank drafts were neither NRE accounts, nor any remittance in the same were by way of foreign exchange and further the certificates under the Scheme had been wrongly obtained.
Apart from above, the evidence on record proves beyond reasonable doubt that the account no. 3024 and 17036 were not NRE accounts and as such no certificate under the Remittance of Foreign Exchange (Immunities) Scheme, 1991 could be issued with respect to any amount remitted from the said accounts. The modus operandi adopted in connivance with the public servants (bank officials) was to show the deposit of amount by the beneficiary accused in the said accounts and thereafter draft was issued from the said account in favour of the beneficiary accused on the same date or immediately thereafter. Further, a certificate was issued on behalf of the bank officials certifying issuing of the demand draft in favour of beneficiary from NRE account and further certifying that the amount was collected through foreign CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 44 of 59 remittance.
It is pertinent to note that the accused S. P. Goel and Beena Goel are residents of Bareilly. The amount used for depositing at Darya Ganj, Delhi would not have been without their knowledge. The amount was accordingly deposited in the Branch and the draft was prepared for showing it as Remittance in Foreign Exchange (Immunities) Scheme, 1991. The amount was further credited in the respective accounts of the accused at Bareilley and for the aforesaid purpose the prosecution has also filed the relevant ledger sheets showing the debiting of the amount. Even the drafts also reflect the fact of crediting of the same in the concerned accounts. The fact that the 'declaration forms' alongwith 'certificates' issued under Remittance in Foreign Exchange (Immunities) Scheme, 1991 were recovered and seized from the premises of the accused leads to the only inference that the accused were duly aware that the said amount remitted by bank draft was for seeking the benefit under the Scheme. The offence stood completed the moment, the drafts were got issued and were further got credited by the accused in their respective accounts. The circumstances point out to only inference that the entire transactions would not have been possible without the actual complicity and knowledge of accused S. P. Goel and Beena Goel. It is immaterial whether for purpose of claiming the benefit the declaration forms were finally filled up in their hand or were got filled on their behalf by someone else. Such huge amount in the year 1992 would not have been handed over by the accused for being deposited without being aware of the purpose for which the CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 45 of 59 same was being deposited and the drafts obtained. The circumstance and evidence on record clearly point out that the accused were in league with the co-accused/public servants. The contention on behalf of the accused that the prosecution case fails as there is no direct evidence of passage of gratification to the public servants cannot be accepted. It is explicit from the facts and circumstances that the public servants had misconducted themselves in order to ensure that the beneficiary accused are able to gain by illegally showing the income as Remittance under the Foreign Exchange (Immunities) Scheme, 1991.
15. It may also be appropriate to refer to other contentions made on behalf of accused S. P. Goel and Beena Goel. It has been contended by counsel for accused that expert evidence is a weak type of evidence and the Courts do not consider it as conclusive and, therefore, it is not safe to rely upon it without seeking independent and reliable corroboration. Reference in this regard has been made to 1996 Crl.L.J. 3237 S. Gopal Reddy vs. State of Andhra Pradesh. There is no dispute to the aforesaid extent as to the proposition of law. However, counsel for accused has further contended that since permission was not obtained by the IO prior to obtaining the specimen handwriting of the accused, the opinion of the handwriting expert has to be excluded. For the aforesaid purpose reliance is placed upon the judgement passed by the Hon'ble High Court of Delhi decided on 05.04.2010 in Crl. Appeal 537/2006 Md. Yunus vs. State, judgement passed by the Hon'ble High Court of Delhi in Crl. Appeal 682/2008 Santosh CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 46 of 59 @ Bhure vs. State decided on 05.03.2009, judgement passed by the Hon'ble High Court of Delhi in Crl. Appeal 513/2001 Avdesh vs. State decided on 14.05.2009 alongwith Sukhwinder Singh & Ors. vs. State of Punjab 1994(3) SCR 1061.
I am of the considered view that the law on the aforesaid point has been further authoritatively clarified in Bhupinder Singh vs. State in the judgement passed by the three Judges Bench of the Hon'ble High Court of Delhi in Crl. Appeal No. 1005/2008 decided on 30.11.2011. In the aforesaid case, expressing doubt to the correctness of decisions in Harpal Singh v. State (Criminal Appeal No. 362/2008 decided on 25th May, 2010) and Satyawan v. State (Criminal Appeal No. 34/2011 decided on 9th July, 2009) wherein the two division benches had ignored the part of the report of the handwriting expert on the ground that the investigating officer had taken the specimen handwriting in violation of the provisions of the the Identification of Prisoners Act, 1920, the following question was referred for adjudication by a larger Bench "Whether the sample finger prints given by the accused during investigation under Section 4 of the Identification of Prisoners Act, 1920 without prior permission of the Magistrate under Section 5 of the Act will be admissible or not?"
The Hon'ble Full Bench was of the considered view that the view expressed in Harpal Singh (Supra) and Satyawan (supra) is not a correct view and was overruled. It was further observed that the view expressed in the case of Sunil Kumar @ Sonu vs. State of NCT of Delhi Crl. Appeal No. CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 47 of 59 446/2005 decided on 25.03.2010 lays down the law in correct perspective. The observations in Sunil Kumar @ Sonu may be beneficially reproduced as under :
"26. It is true that the specimen finger print impressions of the appellants were taken by the IO directly and not through the Magistrate as provided in Section 5 of Identification of Prisoners Act. But, that, to my mind was not necessary because Section 4 of Identification of Prisoners Act specifically provides that any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurement to be taken in the prescribed manner. In view of the independent powers conferred upon a police officer under Section 4 of the Act, it was not obligatory for him to approach the Magistrate under Section 5 of the Act. He would have approached the Magistrate, had the appellants refused to give Specimen Finger Print Impressions to him.
Therefore, no illegality attaches to the specimen finger print impressions taken by the Investigating Officer. The court needs to appreciate that the very nature and characteristic of material such as finger prints renders it intrinsically and inherently impossible for anyone to fabricate them. If there is an attempt to fabricate finger prints, that can certainly be exposed by the accused by offering to allow his finger prints to be taken so that the same could be compared through the process of the court. Crl. A. No. 1005/2008 Page 6 of 15 None of the appellants has come forward to the court with a request to take his finger print impressions in the court and get them compared with the chance finger prints lifted by PW-1 from Car No. DL 2CA 4116 on 21st December, 2000."
In view of the authoritative pronouncement in Bhupinder Singh vs. State (Supra) and other authorities referred therein, I am CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 48 of 59 of the considered view that opinion of the handwriting expert cannot be excluded merely on the ground that the specimen handwriting of the accused were obtained during investigation for comparison without seeking the permission of the Magistrate. Apart from above, even otherwise, the evidence on record is sufficient to link the accused S.P. Goel and Beena Goel to conspiracy.
In the aforesaid context, counsel for accused has also contended that the specimen handwritings of the accused were initially obtained and thereafter the name of the accused was subsequently typed during investigation, as revealed in cross- examination of IO. It is further submitted on behalf of the accused that the specimen writings which were obtained pertain to accused other than whose name is subsequently typed and reflected in the heading of the sheet containing the specimen handwriting. The said contention appears to be meritless as the suggestion given to this extent was denied by the IO and there is no other material on record to assume that the specimen handwriting is of a person other than whose name has been reflected/typed on the concerned sheet containing the specimen handwriting.
16. The counsel for the accused has further assailed the case of the prosecution on the ground that the IO Rajesh Kumar has not been examined. The said contention has been refuted on behalf of prosecution on the ground that the substantial investigation had been carried by Deputy SP Rajiv Chaddha who has been duly examined and merely the charge-sheet was filed by the other IO CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 49 of 59 on transfer of Rajiv Chaddha (PW-25).
I am of the considered view that the accused cannot be said to be prejudiced on account of non-examination of Inspector Rajesh Kumar IO who had merely filed the charge-sheet as the substantial investigation had been carried out by Deputy SP Rajiv Chaddha.
17.It also needs to be mentioned that the charge has been framed against the accused S. P. Goel and Beena Goel with reference to remittances/certificates as detailed in the facts. Further reference has been made in the charge to the draft dated 25.11.91 for Rs. 1,50,000/- in favour of S. P. Goel, draft dated 26.11.91 for Rs. 1,50,000/- in favour of Beena Goel, draft dated 25.11.91 for Rs. 50,000/- in favour of minor Sonal Goel (minor daughter of S. P. Goel).
Accused during the course of arguments have contended that the draft related to Sonal Goel cannot be considered against the accused since there is no specific charge referring to the fact that the same had been applied by them on behalf of minor Sonal Goel. I am of the considered view that irrespective of the aforesaid contention, the fact that the drafts in the name of Sonal Goel in sum of Rs. 50,000/- referred to above and another draft for Rs.81,000/- in favour of Sonal Goel had been wrongly credited as Remittances under the Foreign Exchange (Immunities) Scheme, 1991 can be considered as a part of the series of the facts of the entire transaction and the proceedings cannot be said to be vitiated merely on this account. Since Sonal Goel was a minor her CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 50 of 59 account was operative through parents / guardian. In the facts and circumstances, even if the drafts in favour of Sonal Goel are excluded, the charge still stands proved against the accused on the basis of remittances and drafts in their own favour.
18. Counsel for accused also contended that accused Beena Goel being a housewife was unaware as to the transactions carried on her behalf by her husband and was not associated with the business activity in any manner. Reference in this regard has also been made to testimony of Beena Goel who examined herself in defence.
It may be observed that during the course of arguments, no reference has been made on behalf of the accused to the defence taken on their behalf in specific that the accused were misled by their accountant Shri Shiv Kumar Aggarwal (their employee) who had introduced a person by name of Sarvesh Aggarwal for purpose of investment and the applicant had only shown interest for investing in National Housing Immunity Scheme and not the present scheme from which the drafts were issued to Sarvesh Kumar Aggarwal by misrepresentation. The accused did not in any manner stick to the aforesaid defence which was taken in the written application dated 21.02.2002 filed on record on their behalf and neither any such evidence was led in defence evidence or witnesses suggested on aforesaid lines. Neither any criminal prosecution or complaint was lodged by S. P. Goel and Beena Goel against Sarvesh Aggarwal if any such misrepresentation was CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 51 of 59 made by him. The amount was duly credited in the account of Beena Goel who is a educated lady and it cannot be believed that the entire transaction had taken place without her knowledge or concurrence. Even after the filing of FIR the aforesaid amount has been disclosed to the IT Department only somewhere in the year 1998 as per evidence led on record. In the facts and circumstances, accused Beena Goel is also duly liable for the offences proved against her.
19. The counsel for accused S.P. Goel and Beena Goel has next contended that the accused could have been prosecuted only under the Income Tax Act, 1961 and not under Section 420 IPC for dishonestly omitting to declare the income and evade the income tax on the basis of aforesaid forged certificate. It is further submitted that offence of cheating u/s 420 IPC has not been established on record.
The fact that income represented by the certificates under the Foreign Exchange (Immunities) Scheme, 1991 came to be declared for the first time in January/ February, 1998 by way of voluntary disclosure has come on record. No evidence has been pointed out on behalf of accused in case the income corresponding to the amount represented under the Foreign Remittances was declared in the regular returns for the corresponding years pertaining to 1992-1993. This definitely reflects and leads to only inference that at least there was an attempt to conceal the income for filing of return during the relevant years though the same may have been subsequently CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 52 of 59 disclosed by way of voluntary disclosure. The burden lay on the prosecution to affirmatively prove, if the said certificates obtained under the remittances in Foreign Exchange (Immunities) Scheme, 1991 had been used by the accused before Income Tax Authority. However, no specific evidence as been brought to my notice whereby the said certificates were produced before the Income Tax Deptt. In the facts and circumstances, the non-disclosure in the relevant years leads to only inference that an attempt had been made to cheat the Income Tax Deptt and the same was disclosed by voluntary scheme only after the FIR had been registered and charge sheet had in fact been filed in the court. The accused S.P. Goel and Beena Goel are as such convicted u/s 420/511 IPC.
The certificates under Foreign Exchange (Immunities) Scheme, 1991 purportedly create right to claim exemption from levy of income tax and also immunities from any enquiry into the remittances represented and as such are documents in the nature of valuable securities within the meaning of section 30 IPC. The said certificates were forged for purpose of cheating by the bank officials and the knowledge of the fact that they were forged is also imputed to the accused. The certificates were obtained by accused by depositing the corresponding amount and the demand drafts representing foreign remittances were also deposited by accused in their respective accounts. The same clearly demonstrates that the certificates were intended to be used dishonestly by the accused as genuine, as the income corresponding to the amount reflected in the certificates was not CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 53 of 59 disclosed for the relevant assessment years and was only disclosed by voluntary disclosure in the year 1998. In view of above, both the accused S. P. Goel and Beena Goel are also liable to be convicted u/s 474 IPC.
20. In the facts and circumstance, prosecution has brought home charge against accused S. P. Goel and Beena Goel beyond reasonable doubt. Both the accused are accordingly convicted u/s 120B r/w Section 420, 471/474 IPC & u/s 13(1)(d) r/w Section 13(2) of PC Act, 1988. Both the accused are also convicted u/s 420/511 and 474 IPC. Accused Pawan Sain Jain is acquitted as already observed in the preceding paragraphs.
Announced in the (Anoop Kumar Mendiratta) open Court on Special Judge(PC Act) 18th February, 2012 CBI-08, Central District, Tis Hazari Courts, Delhi. CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 54 of 59 IN THE COURT OF ANOOP KUMAR MENDIRATTA,
SPECIAL JUDGE (PC ACT), CBI-08, CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
RC No. : 15(A)/92
CC No. : 103/2011 (Old No.51/95)
PS : CBI/ACB/ND
CBI
Versus
JAGDISH KUMAR JAIN AND OTHERS
Date of FIR : 31.03.1992
Date of Institution : 09.11.1995
Date of Judgement : 18.02.2012
CASE MORE THAN 10 YEARS OLD.
ORDER ON SENTENCE
1. Accused S. P. Goel and Beena Goel who are related as husband and wife have been convicted vide judgment dated 18.02.2012 u/s 120B r/w (Section 420, 471/474 IPC & Section 13(1)
(d) r/w Section 13(2) of PC Act, 1988). Both the accused are also convicted u/s 420 r/w 511 and 474 IPC.
The accused entered into a criminal conspiracy alongwith bank CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 55 of 59 officials of Daryaganj Branch of Central Bank of India whereby Indian currency was deposited in two fake/fictitious accounts and subsequently certificates procured under the "Remittance under the Foreign Exchange (Immunities) Scheme, 1991" to falsely reflect that the same were proceeds of foreign exchange for claiming Income Tax exemptions. As such, an attempt was made to convert black money into white.
2. It may be pointed out that the case investigated on the basis of FIR registered on 31.03.1992, resulted in 13 accused being charge-sheeted as reflected in the memo of parties in the judgement. Accused Ajay Kumar Gupta (A-6), Satish Kumar Gupta (A-7), V. K. Khanna (A-10), Mukesh Gulati (A-11), Mahender Singh (A-12) and Arun Kumar Gupta (A-13) were charged u/s 120B IPC r/w Section 420, 467, 468, 471 IPC & Section 13(1)(d) r/w 13(2) of PC Act, 1988 as well as u/s 474 IPC. Accused V. K. Khanna (A-10) and Mukesh Gulati (A-11) were also charged u/s 420 r/w 511 IPC. The aforesaid six accused pleaded guilty at the stage of charge and were convicted and sentenced vide order dated 05.03.2002 by the then Special Judge, Delhi. Further, considering the fact that the accused who had pleaded guilty could not derive any pecuniary advantage and the protracted proceedings, accused were sentenced to TRC and fine of Rs.50,000/- on each count.
The trial, as such proceeded against the remaining accused. Out of the same, A-1 Jagdish Kumar Jain (public servant), A-2 Satish Kumar Jain and A-5 Jaydev Tyagi (public servant) expired during the course of trial and as such the CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 56 of 59 proceedings against them stand abated. A-3 Y. P. Tara absconded during the course of proceedings.
The effective trial, as such has remained against the remaining three accused A-4 Pawan Sain Jain (public servant), A-8 S. P. Goel and A-9 Beena Goel. A-4 Pawan Sain Jain who was posted as Clerk in the Central Bank of India, Daryaganj Branch was acquitted vide judgement dated 18.02.2012 while A-8 S. P. Goel and A-9 Beena Goel stand convicted under various Sections as reflected in preceding paragraph.
3. I have heard ld. PP for CBI & accused on point of sentence. Counsel for accused contended that lenient view be taken since accused Beena Goel is a lady and has been undertaking treatment for cancer. It is also urged that accused Beena Goel being a housewife was not actively participating in the business carried by her husband and the transactions carried on her behalf were not to her knowledge. Similarly, it is contended on behalf of accused S. P. Goel that the accused is above 60 years and has faced protracted trial for about two decades since the FIR was registered far back in 1992. It is further contended that the amount remitted under the Foreign Exchange (Immunities) Scheme, 1991 has already been declared under the voluntary disclosure scheme and as such no benefit has accrued to accused. In view of above, it is prayed that a lenient view be taken against both the accused and they be released on probation. In the alternative, it is contended that the case of S. P. Goel and Beena Goel is analogous with other convicts Ajay Kumar Gupta (A-6), Satish Kumar Gupta (A-7), V. K. Khanna (A-10), Mukesh Gulati (A-11), Mahender Singh (A-12) and Arun Kumar CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 57 of 59 Gupta (A-13) who were sentenced to TRC and fine at the stage of charge on their pleading guilty by the then ld. Predecessor and as such the accused be sentenced to fine.
On the other hand, ld. PP for CBI contends that a deterrent sentence be passed.
4. The case should be an eye opener to those who stash unaccounted money and make a futile effort to seek tax exemptions under the delusion that law is unlikely to catch up. The case bringing unholy nexus to an end, is only a tip of the iceberg, as the same was detected on source information by CBI while many such instances may be unchecked and need to be appropriately probed. The case also brings to light the gaps exploited by those responsible for execution of the Remittances under the Foreign Exchange (Immunities) Scheme, 1991.
I am of the considered view that those who indulge or seek unlawful benefit under the scheme by fraudulent means, do not deserve the benefit of probation as the evasion to pay the due taxes prevents the nation to undertake many tasks that are in public interest. The punishment has to be commensurate to prevent similar frauds in future. It also needs to be noticed that if the machinery for execution of such schemes is weak or motivated to look the other way, the State would never be able to generate the revenue. As such, the RBI needs to ensure that Banks entrusted to implement said schemes, place necessary check and plug the gap holes and also monitor the implementation of the schemes in the right earnest. Also there CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 58 of 59 is a need to formulate appropriate guidelines by the Governor, RBI to be followed by all the Banks executing the said scheme which may work as bench mark to check the commission of similar frauds. A copy of judgment and order be accordingly forwarded to the Governor, RBI and CEO/Managing Director, Central Bank of India for compliance.
5. The case of the accused S. P. Goel and Beena Goel is at parity and analogous to the other convicts who were sentenced to TRC and fine by the then ld. Predecessor on their pleading guilty. Considering the fact that the convicts have faced protracted proceedings for about two decades and had finally disclosed the income, it would be proper and befitting to impose the sentence of TRC with fine of Rs.50,000/- on each count on both the accused. In default of payment of fine, the accused shall undergo SI for three months on each count. The total fine amount which each accused is required to pay on different counts is Rs.1,50,000/- each. Copy of judgement alongwith order on sentence be provided to convicts, free of cost. Bail bonds of the convicts are forfeited.
Announced in the (Anoop Kumar Mendiratta) open Court on Special Judge(PC Act) 23rd February, 2012 CBI-08, Central District, Tis Hazari Courts, Delhi. CC No. 103/11CBI Vs. Jagdish Kumar Jain & Ors. Page 59 of 59