Central Bureau Of Investigation vs . M/S. Vikram Enterprises. The Copies Of ... on 6 February, 2016

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Delhi District Court

Central Bureau Of Investigation vs . M/S. Vikram Enterprises. The Copies Of ... on 6 February, 2016

        IN THE COURT OF SURINDER KUMAR SHARMA
SPECIAL JUDGE, P.C. ACT (CBI)  09, CENTRAL DISTRICT 
                      TIS HAZARI : DELHI.


                          CC No.04/2011
                 R.C. No.4(A)/91/CBI/SIUX/ND
                Case I.D. No.02401R0824892005


Central Bureau of Investigation

                  Versus


1.    Sh. V.K. Bhutiani
      S/o Sh. Brij Lal Bhutiani
      R/o G604, Prince Apartments 
      54, Indraprastha Extn.
      Patparganj, Delhi.
      Former Sr. Manager
      New Bank of India, EBlock
      Connaught Circus, New Delhi.



2.    Sh. O.P. Rajwanshi  (Since Expired)
      S/o Late Sh. M.L. Rajwanshi
      R/o 176D, Abu Lane
      Meerut (UP).
      Prop. M/s. Vikram Enterprises
      31 Ring Road, Lajpat Nagar

CC No.04/2011                                   Page 1/217
       New Delhi.



3.    Sh. S. Mohd. Yusuf      (Since Expired)
      S/o Late Abdul Majid
      R/o 41, Subhash Bazar
      Husna Begum Lane
      Meerut, (UP).
      Prop. M/s. Haji Guddar S. Abdul Karim.

4.    Mrs. Rashmi Agarwal
      W/o Sh. Praveen Agarwal
      R/o 248, CA Apartments 
      A3, Paschim Vihar, New Delhi.
      Prop. M/s. Multiple Traders.


5.    Sh. Praveen Agarwal
      S/o Sh. Shiv Shankar Agarwal
      R/o 248, CA Apartments
      A3, Paschim Vihar, New Delhi.

6.    Sh. Neeraj Jain
      S/o Sh. U.C Jain
      R/o 31, Ring Road
      Lajpat Nagar, New Delhi.



Date of Institution          :  24.12.1993

CC No.04/2011                                   Page 2/217
 Date of Arguments                :  16.12.2015
Date of Judgment                 :  30.01.2016



JUDGMENT

1. The CBI has filed chargesheet for the offences punishable u/s 120B IPC r/w Sections 420, 467, 468 & 471 IPC and Section 13(2) r/w Sec. 13(1)(a) of The Prevention of Corruption Act,1988, against accused persons, namely, (1) V.K. Bhutiani, (2) O.P. Rajwanshi, (3) S. Mohd. Yusuf, (4) Ms. Rashmi Agarwal, (5) Praveen Agarwal and (6) Neeraj Jain. All the said accused persons have also been chargesheeted for the substantive offences punishable u/s 420, 468 & 471 IPC. Accused V.K. Bhutiani has further been chargesheeted for substantive offences punishable u/s 1 Section 13(2) r/w Sec. 13(1)(a) of The Prevention of Corruption Act, 1988. Accused Praveen Agarwal and O.P. Rajwanshi have further been chargesheeted for the offence punishable u/s 467 IPC. The FIR of this case was CC No.04/2011 Page 3/217 registered by the CBI on the basis of source information, on 30.12.1991.

Case of the Prosecution as mentioned in the ChargeSheet

2. In the year 1989, accused V.K. Bhutiani was working as Sr. Manager, New Bank of India, LBlock, Connaught Circle, New Delhi. During the period of November December,1989 accused V.K. Bhutiani in order to cheat New Bank of India, entered into a criminal conspiracy with accused persons, namely O.P. Rajwanshi, S. Mohd. Yusuf and Ms. Rashmi Agarwal.

3. Pursuant to the aforesaid criminal conspiracy, the accused O.P. Rajwanshi Prop. of M/s. Vikram Enterprises applied for advancement of loan to him and had submitted an application in the New Bank of India, L Block, Connaught Place, New Delhi, seeking the credit limit of Rs. 50 Lacs for the export finance against a Letter of Credit from Hongkong. On 24.11.1989 accused V.K. CC No.04/2011 Page 4/217 Bhutiani conducted presanction inspection of M/s. Vikram Enterprises and gave a false report in this regard. Thereafter, a Current Account No. 7748 of M/s. Vikram Enterprises was opened on 25.11.1989, by accused O.P. Rajwanshi, as its proprietor. Sh. S.K. Bhola was introducer of the said Current Account. Accused V.K. Bhutiani got the account of M/s. Vikram Enterprises introduced by Sh. S.K. Bhola. On the recommendations of accused V.K. Bhutiani, an export credit facility of Rs. 50 lacs for the said account, was sanctioned by Sh. D.K. Gupta Regional Manager of New Bank of India. The party availed the loan facility and out of the said limit, Rs. 17.2 Lacs were disbursed to the party on the basis of bogus proforma invoices and without supply of any goods. Thereby, a pecuniary loss of Rs. 17.20 Lacs was caused to the bank.

4. The loan application dated 20.11.1989 along with accompanying documents which were submitted to the CC No.04/2011 Page 5/217 bank were filled in by accused Praveen Agarwal. Accused O.P. Rajwanshi and Neeraj Jain were the guarantors of the said loan. Accused Neeraj Jain had offered security in the form of negative lien of his DDA flat at Jhilmil Colony, Delhi.

5. As per the information provided to the Bank by O.P. Rajwanshi, M/s. Safe Rich Industries Ltd. Suite 2107A, 21F, Tower1, China Hongkong City, was its overseas buyer and this firm was going to open Letter of Credit to enable M/s. Vikram Enterprises to export the goods. Accordingly, on the basis of a purchase order dated 05.11.1989 of M/s. Safe Rich Industries Ltd., O.P. Rajwanshi on behalf of M/s. Vikram Enterprises applied for Packing Credit Limit. O.P. Rajwanshi also submitted a copy of Agreement dated 30.11.1989 entered between O.P. Rajwanshi, Prop. Of M/s. Vikram Enterprises and S. Mohd. Yusuf Prop. of M/s. Haji Guddar S. Abdul Karim for supply of silk garments. Vide letter dated 25.12.1989, CC No.04/2011 Page 6/217 loan facilities were sanctioned to M/s. Vikram Enterprises by Sh. D.K. Gupta Regional Manager, on the basis of single transaction instead of regular basis, on the recommendation of accused V.K. Bhutiani. Thereafter, a Letter of Credit was opened by M/s. Safe Rich Industries Ltd. in favour of M/s. Vikram Enterprises and the goods as per this Letter of Credit were to be supplied by M/s. Vikram Enterprises by 31.03.1990. This Letter of Credit was submitted by M/s. Vikram Enterprises to New Bank of India, LBlock, Connaught Place, New Delhi Branch.

6. It is alleged that on 26.12.1989, O.P. Rajwanshi had made a request to the Manager, New Bank of India for releasing the Packing Credit Limit and also submitted LC No.H01G35730 along with it. On the same day, another request was made to the Manager for issuance of Pay Orders in favour of M/s. Multiple Traders for Rs. 2,30,000/ , M/s. Haji Guddar S. Abdul Karim for CC No.04/2011 Page 7/217 Rs. 12,75,000/ and M/s. Haji Guddar S. Abdul Karim for Rs. 2,25,000/.

7. It is further alleged that the Proforma Invoices of M/s. Haji Guddar S. Abdul Karim bearing Nos. 36 and 37 dated 17.12.1989 for Rs. 20,10,000/ and Rs. 2.25 Lacs, respectively, were submitted along with covering letters purported to have been written by Mohd. Yusuf for M/s. Haji Guddar S. Abdul Karim. But, in fact, the said covering letter was signed by O.P. Rajwanshi as Mohd. Yusuf. Thereafter a receipt of Rs. 4,35,000/ was submitted to the Bank, stated to have been issued on behalf of M/s. Haji Guddar S. Abdul Karim for having received the said amount from M/s. Vikram Enterprises on account of proforma invoice No. 36. Similarly, another invoice No. 3/89 of M/s. Multiple Traders dated 15.12.1989 drawn on M/s Vikram Enterprises for silk sarees for an amount of Rs. 2,30,000/ was submitted to the bank. Another receipt was given by M/s. Multiple CC No.04/2011 Page 8/217 Traders for having received Rs. One lac from M/s. Vikram Enterprises, against the above invoice No. 3/89. On the basis of theses proforma invoices the Packing Credit Limit account of M/s. Vikram Enterprises was debited and the amount was credited in the account No. 7748 of M/s. Vikram Enterprises.

8. As per prosecution, accused Rashmi Agarwal is the proprietor of M/s. Multiple Traders and accused O.P. Rajwanshi had issued two cheques dated 25.12.1989 and 26.12.1989 in favour of New Bank of India for issuing Pay Orders, one in favour of M/s. Multiple Traders for an amount of Rs. 2.3 Lacs and the other in favour of M/s. Haji Guddar S. Abdul Karim for an amount of Rs. 2.25 Lacs, respectively. The Bank issued the respective Pay Orders in favour of both the aforesaid firms on the same day and the said amount were credited, respectively, in the respective accounts of M/s. Multiple Traders and M/s. Haji Guddar S. Abdul Karim.

CC No.04/2011 Page 9/217

9. It is further alleged that the Current Account of M/s. Haji Guddar S. Abdul Karim was opened on 12.12.1989 in State Bank of Travancore, R.K. Puram on the introduction of accused O.P. Rajwanshi. The Pay Order of Rs. 2.25 Lacs issued by New Bank of India was credited to this account from where it was withdrawn on 30.12.1989 through cheque.

10.On 28.12.1989, Rs. 12.65 Lacs were debited from the FCL account of M/s. Vikram Enterprises and the said amount was credited to the current account No. 7748 of M/s. Vikram Enterprises. Thereafter, on the same day, after issuance of the cheque by accused O.P. Rajwanshi, Prop. Of M/s. Vikram Enterprises, the said amount of Rs. 12.65 Lacs was credited in the account of M/s. Haji Guddar S. Abdul Karim by the New Bank of India from the Current Account of M/s. Vikram Enterprises. CC No.04/2011 Page 10/217

11.As per the charge sheet, out of the total amount of Rs.14,90,000/, S. Mohd. Yusuf of M/s. Haji Guddar S. Abdul Karim had received Rs.16,000/ and the remaining amount of Rs.14,64,000/ came in the hands of Neeraj Jain. It is also alleged that the flat which was offered as security to the bank by Neeraj Jain was in fact purchased by Praveen Agarwal in July 1989 for consideration of Rs.62,000/. Later on, when the loan application was submitted by O.P. Rajwanshi, the said flat was got transferred in the name of Neeraj Jain. In order to adjust the payment of this flat with Neeraj Jain, Praveen Agarwal had prepared a bogus invoice dated 15.12.1989 in the name of M/s. Multiple Traders for having received Rs. One lac in cash against the said invoice. This receipt was signed by Sh. Praveen Agarwal as Ashwani Kumar.

12. Further, to meet the requirement of margin money of 25% a receipt of Rs.4.35 Lacs, was prepared on behalf of M/s. Haji Guddar S. Abdul Karim and was submitted to CC No.04/2011 Page 11/217 the New Bank of India along with a receipt of Rs. One lac given by M/s. Multiple Traders. The accounts of M/s. Multiple Traders did not reflect any receipt of Rs. One Lac as claimed. During the course of search conducted at the residence of O.P Rajwanshi certain documents were recovered which showed that accused Neeraj Jain had received Rs.14.64 Lacs from S. Mohd. Yusuf and also confirmed the payment of Rs.16,000/ to S. Mohd. Yusuf.

13. It is further alleged that accused V.K. Bhutiani allowed to avail the limits without obtaining the credit reports from existing bankers of M/s. Vikram Enterprises. The Credit Report of Allahabad bank was received in New Bank of India on 01.01.90, whereas the party had availed the major portions of the limit by 28.12.1989. Thus, all the accused persons in connivance with each other defrauded the New Bank of India, LBlock, Connaught Place, New Delhi by way of availing loan on the basis of forged and bogus documents.

CC No.04/2011 Page 12/217

14.On 27.09.2003, charges against the accused persons namely V.K. Bhutiani, O.P. Rajwanshi, Ms. Rashmi Agarwal, Praveen Agarwal, Neeraj Jain and Late S. Mohd. Yusuf, were framed for the offences punishable under Section 120B read with Sections 420/467/468/471 IPC and section 13(2) read with Section 13(1)(d) of The Prevention of Corruption Act, 1988. A charge was also framed against V.K. Bhutiani, O.P. Rajwanshi, Mrs. Rashmi Agarwal, Praveen Agarwal and Neeraj Jain for committing the offence punishable under section 420 IPC. Accused O.P. Rajwanshi was also charged for offences punishable under sections 467/468/471 IPC. Accused Praveen Agarwal was also charged for offences punishable under sections 467/468/471 IPC. Accused V.K. Bhutiani was also charged for committing the offence punishable under section 13(1)(d) of the P.C. Act. The accused persons pleaded not guilty to the charges and claimed trial.

CC No.04/2011 Page 13/217

15.After the framing of charge accused V.K. Bhutiani preferred a Criminal Revision Petition before the Hon'ble Delhi High Court challenging the order of charge. The Hon'ble Delhi High Court vide its order dated 20.04.2005 allowed the revision petition, whereby the accused V.K. Bhutiani was discharged. Thereafter the case was transferred to the Court of Ld. ACMM by the Ld. Sessions Judge as after the discharge of V.K. Bhutiani, the other offences were triable by the Court of Magistrate.

16.Vide order dated 15.11.2007, the Ld. Addl. Chief Metropolitan Magistrate framed the charge against the accused persons. Accused Rashmi Agarwal, Praveen Agarwal, Neeraj Jain, Late O.P. Rajwanshi and Late S. Mohd. Yusuf were charged for committing the offence punishable under section 120 B r/w sections 420/467/468/471 IPC. Separate charge for committing the offence punishable under section 420 IPC was framed CC No.04/2011 Page 14/217 against Rashmi Agarwal, Praveen Agarwal, Neeraj Jain, Late O.P. Rajwanshi and Late S. Mohd. Yusuf. Accused Praveen Agarwal was further separately charged for the offence punishable under sections 467/468/471 IPC.

17. Against the order of Hon'ble High Court dated 20.04.2005, CBI filed a Criminal Appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court vide its order dated 11.08.2009 set aside the order dated 20.04.2005 passed by Hon'ble High Court of Delhi, vide which accused V.K. Bhutaini was discharged. Thereafter the case was again received back in this Court.

18.To bring home the charges against the accused persons, the prosecution has examined 31 witnesses. The statements of accused persons were recorded under Section 313 Cr.P.C.

CC No.04/2011 Page 15/217 Prosecution of Evidence

19. PW1 is Sh. Satish Chand Gupta. He has deposed that from 1988 to 1993 he was posted at Central Bank of India, Naya Bazar Branch as Clerk. He has stated that vide Account Opening Form Ex. PW1/A, a proprietorship account was opened in the name of Hazi Guddar S. Abdul Karim on 30.12.1989 by S. Mohd. Yusuf. The opening of account was authorised by this witness on the instructions of Branch Manager Sh. A.R. Mittal. The account holder was commission agent and exporter. The account was introduced by the holder of account of Sanjay Kumar Ajay Kumar. He has identified the Specimen Signature Card Ex.PW1/B bearing signatures of S. Mohd. Yusuf. He has deposed that Ex. PW1/C i.e. the cheque dated 30.12.1989 for Rs. 12.5 Lacs was presented by S. Mohd. Yusuf. Ex. PW1/C was passed by this witness for payment and the payment of the said cheque was received by S. Mohd. Yusuf himself. CC No.04/2011 Page 16/217

20.PW2 is Sh. Nandu Mal Jain. He has deposed that in the year 1988 he was posted as Sub Accountant at Central Bank of India, Naya Bazar Branch and had remained posted there till 1993. He stated that vide Pay inslip Ex.PW2/A the Pay Order Ex. PW2/B of Rs. 12.65 Lacs was credited to the account of M/s. Hazi Guddar S. Abdul Karim. The Pay Order Ex.PW2/B was purchased on the orders of Branch Manager Sh. A.R Mittal and the amount was credited into the account of the party. Vide Debit Voucher Ex.PW2/C commission of Rs. 2287.40 was charged from the party. Ex. PW2/D is the cheque bearing No. 045682 dated 30.12.1989 for Rs.12,000/ which was received through clearing from State Bank of Travancore, R.K. Puram Branch.

21.PW3 is Sh. A.R Mittal. He has deposed that in February, 1989 he was working as Branch Manager with Central Bank of India, Naya Bazar Branch, Delhi. He has stated that he has verified the signatures of the introducer CC No.04/2011 Page 17/217 of the account opened vide Ex. PW1/A. He identified the signatures of introducer Sh. Mahesh Chand in this regard. He has further stated that he had allowed the purchase of Pay Order Ex. PW2/C. He had identified his signatures on Ex. PW2/A i.e. the Order vide which he purchased the Pay Order Ex. PW2/C on the request of S. Mohd. Yusuf, after confirming the genuineness of the Pay Order.

22.PW4 is Shri Mahesh Chand Bindal. He has deposed that he has introduced the account which was opened vide Account Opening Form Ex. PW1/A. This was so done by him on the request of Shri Manoj Kumar and he does not know S. Mohd. Yusuf, personally.

23. PW5 is Shri Prem Gandhi. He has deposed that in the year 1992 he was working as Accountant in LBlock, Connaught Place Branch, New Bank of India. He stated that vide voucher dated 28.12.1989 (Ex. PW5/A) V.K. Bhutiani Sr. Manager had permitted the debit of Rs. 12.65 CC No.04/2011 Page 18/217 Lacs from the PCL account of M/s. Vikram Enterprises. Ex. PW/5/B is the corresponding Credit Voucher for Rs. 12.65 Lacs vide which the said amount was credited in the current account No. 7748 of M/s. Vikram Enterprises. He further deposed that Sh. V.K. Bhutiani vide debit voucher Ex. PW5/C for Rs. 4.15 Lacs, had authorised the said debit. The corresponding credit voucher for Rs. 4.15 Lacs is Ex. PW5/D, vide which the said amount was credited in the current account No. 7748 of M/s. Vikram Enterprises.

24.PW6 is Shri Y.N. Verma. He has deposed that in 1989 he was posted as Accountant in L Block, Connaught Place Branch, New Bank of India. He stated that the payment of Pay Order Ex. PW2/B in favour of M/s. Haji Guddar S. Abdul Karim for Rs. 12.65 Lacs was allowed by Sh. N.K. Arora, Accountant. Ex. PW2/B bears his signature at point C and that of Sh. N.K. Arora at points A and B. CC No.04/2011 Page 19/217

25.PW7 is Shri Manoj Kumar Mittal. He has deposed that in the year 198889, he was running a business of imports and exports under the name and style of M/s. Maxwell India. He knew O.P. Rajwanshi and Neeraj Jain. Neeraj Jain is the son of Umesh Chand, through whom, he used to conduct import and export. Accused O.P. Rajwanshi has introduced him to S. Mohd. Yusuf as exporter. He has introduced the account of S. Mohd. Yusuf, Prop. of M/s Hazi Gudur S. Abdul Karim in Central Bank of India, Naya Bazar, vide Ex. PW1/A. He deposed that one Sh. Mahesh Chand has also introduced the said account.

26.PW8 is Shri B.B.Vij. He has deposed he was posted in the Credit Section of the Head Office of New Bank of India from 1976 to 1988 and from 1990 to 1998. He stated that Credit Section lays down Guidelines for Branches for sanctioning loans and for disbursement and supervision of advances. Packing Credit Limit is granted CC No.04/2011 Page 20/217 to exporters to purchase raw material to convert it into finished goods and to export the finished goods to foreign buyers. Letter of Credit or confirmed order has to be obtained from packing credit by the exporter and he has to submit prescribed Loan Application Form and financial statements for the last three years along with details of his assets and liabilities and Income Tax Returns. He further deposed that Loan Officer before submitting the proposal to the Branch Manager for its onward recommendation to the Sanctioning Authority, has to scrutinize the loan application and conduct physical inspection. Branch Manager has to give his recommendations wherever the same are required on the loan proposal. Branch Manager and Loan Officer may be the same or different persons. He has deposed regarding the procedure of advancement of loan.

27. PW9 is Shri Sanjeev Dutta. He has deposed that he was running his business under the name and style of CC No.04/2011 Page 21/217 'Dutta & Dutta Video Advertising and Ad Films Pvt. Ltd.', since 1986 as proprietorship concern. In the year 198889, he converted his proprietorship concern into a Pvt. Ltd. Company with the help of Aggarwal Jetley & Co. of Chartered Accountants. He knew Shri Praveen Agarwal who was a partner in Aggarwal and Jetley Co., being CA. He had borrowed some money from Shri Praveen Agarwal in the year 1980, which he had returned to him by a cheque. He has further stated that cheque Ex. PW9/A for a sum of Rs. 2 lacs given to him by Shri Praveen Agarwal was credited in his account in New Bank of India. Ex. PW9/B (Account Book) and Ex. PW9/C (Ledger Book) contain the entries related to the said cheque of Rs. 2 lacs.

28. PW10 is Shri Surender Kumar Bhutani. He has deposed that in 1989 he was running his firm in Delhi, under the name and style of M/s. Perfect Hydraulic Works India. He has an account with New Bank of India, CC No.04/2011 Page 22/217 Connaught Place, where V.K. Bhutiani was the Manager at the relevant time. The account of M/s. Vikram Enterprises was got introduced by him (PW10) at the asking of V.K. Bhutiani. He did not know Shri O.P. Rajwanshi, personally. The Account Opening Form is Ex. PW10/A pertaining to the account of O.P. Rajwanshi. He identified his signatures of V.K. Bhutiani on various documents.

29.PW11 is Sh. R.K. Hazrati. He deposed that he was posted as Manager (Vigilance), New Bank of India, Vigilance Department, Rajendra Bhawan, Rajendra Place, New Delhi. He had handed over various documents to CBI on various dates which were seized vide seizure memos Ex.PW11/1 and Ex. PW11/2. Ex. PW11/3 is the letter dated 15.01.1992 vide which documents were given to CBI.

30.PW12 is Sh. Kamal Kishan Jaitley. He has deposed CC No.04/2011 Page 23/217 that in the year 1989 he was the partner of firm M/s. Agarwal Jaitley, Chartered Accountants. Praveen Agarwal was the senior partner in the firm. This witness had introduced the account of M/s. Multiple Traders in State Bank of Travncore and had signed Ex. PW12/F the Account Opening Form in the capacity of Introducer. He also identified the cheque Ex. PW12/A for a sum of Rs. 8000/ signed by him issued in favour of Ms. Madhu Anand. He has also identified the cheque Ex. PW12/B for Rs. 10000/ signed by him issued in favour of Ms. Madhu Anand. He identified the cheques Ex. PW12/C and PW12/D for Rs. 12000/ each, signed by Sh. Shiv Shankar Agarwal and issued in favour of Ms. Madhu Anand. The balance sheet dated 26.12.1989 of M/s. Vikram Enterprises is Ex. PW12/E. He also identified the cheque Ex. PW12/G1 to G5 which have been signed by Rashmi Agarwal. He identified the loan application of M/s. Vikram Enterprises which is Ex. PW12/I and bears the signature of O.P. Rajwanshi. The Statement of CC No.04/2011 Page 24/217 Assets and Liabilities of M/s. Vikram Enterprises which was submitted in New Bank of India is Ex. PW12/J and it bears the signature of O.P. Rajwanshi. The Statement of Assets and Liabilities of Neeraj Jain is Ex. PW12/K. The balance sheet of M/s. Vikram Enterprises as on 31.03.1989 is Ex. PW12/L. The profit and loss account of M/s. Vikram Enterprises for the period from 22.01.1989 to 31.03.1989 is Ex. PW12/M and it bears the signature of O.P. Rajwanshi. The profit and loss account of M/s. Vikram Enterprises for the period from 01.04.1989 to 31.10.1989 is Ex. PW12/N and it bears the signature of O.P. Rajwanshi. The balance sheet of M/s. Vikram Enterprises as on 31.10.1989 is Ex. PW12/O. The Statement of Assets & Liabilities of O.P. Rajwanshi as on 31.10.1989 is Ex. PW12/P. The statement of assessable income of O.P. Rajwanshi for assessment year 198990 is Ex. PW12/Q and it bears the signature of O.P. Rajwanshi. He also identified the signature of O.P. Rajwanshi on Ex. PW7/A, Ex. PW12/R1, R2 and R3, Ex. PW12/S1 and S2. CC No.04/2011 Page 25/217 However, this witness could not identify the signature of O.P. Rajwanshi on certain documents.

31.PW13 is Sh. Arul Harris. He has deposed that in the year 1989 he was running a firm under the name and style of M/s A.V Workshop. M/s. Agarwal Jaitley and Co. was the chartered accountant of his firm. He stated that cheque Ex. PW12/G2 of Rs.20,000/ was given to him on behalf of M/s. Multiple Traders against the loan amount which he had given to M/s. Multiple Traders.

32.PW14 is Sh. Ashwani Kumar Mudgal. He has deposed that in the year 1989 he was working with M/s. Agarwal Jetley & Co. at its office in Hauz Khas. M/s. Multiple Traders was the firm of Mrs. Rashmi Agarwal wife of Sh. Praveen Agarwal. He stated that Bill Mark 11/Y6 for an amount of Rs. 2,30,000/ dated 15.12.1989 does not bear his signature. The receipt dated 15.12.1989 Mark 11/Y7 for an amount of Rs. 1,00,000/ also does not bear his CC No.04/2011 Page 26/217 signature. Both the said bill and receipt are not in his handwriting. The PayinSlip Ex. PW14/A for depositing an amount of Rs. 2.3 Lacs in State Bank of Travancore in Current Account No. 2043 is in his handwriting and bears his signature.

33.PW15 is Sh. Subhash Gupta. He has deposed that he was posted as Dy. Manager in State Bank of Travancore, Bhikaji Cama Place, New Delhi from 1989 to 1994. Vide seizure memos Ex. PW15/A and Ex. PW15/B, he had handed over the documents referred in it to CBI, during the course of investigation.

34.PW16 is Sh. K.K. Nayyar. He has deposed that he was working with Standard Chartered Bank from 1968 to 1994. He stated that vide Ex. PW16/A the Letter of Credit Ex. PW16/B issued by China State Bank Limited, Hongkong, to Standard Chartered Bank, New Delhi, was sent to M/s. Vikram Enterprises from his Branch. Letter of CC No.04/2011 Page 27/217 Credit Ex. PW16/B was delivered by hand to M/s. Vikram Enterprises.

35.PW17 is Sh. Abdul Wahid. He deposed that he knew Mohd. Yusuf, who was a resident of Meerut. The address 626869 Quresh Nagar, Sadar Bazar, Delhi - 6, was his address and there had never been any establishment at the said address by the name of M/s. Haji Guddar S. Abdul Karim. S. Mohd. Yusuf was introduced to him by his relatives and on their request, he had provided his address to S. Mohd. Yusuf. He deposed that he had provided the said address to S. Mohd. Yusuf for doing the business of fruits, but he(S.Mohd. Yusuf) never did any business from the said address.

36.PW18 is Sh. A.K. Singh. He has deposed that in the year 1992 he was posted as Inspector of Police, CBI, New Delhi. On 22.4.1992 he had conducted the search at the residence of O.P. Rajwanshi at 176/D, Abu Lane, CC No.04/2011 Page 28/217 Meerut, U.P., in the presence of independent witnesses Sh. B.D Wadhwa and Sh. Vinod Choudhary. During the search some documents were recovered from the residence of Sh. O.P. Rajwanshi, which were seized by him vide Seizure Memo Ex.PW18/A. He has also identified the documents Ex.PW18/B1 to Ex.PW18/B5 and Ex.PW7/E to Ex.PW7/G recovered by him during the said search.

37.PW19 is Sh. B.D Wadhwa Sr. Manager, Punjab National Bank at Head Office, Bhikajicama Place. He has deposed that on 22.04.1992 he had accompanied CBI team to Meerut in connection with search of the residence of O.P. Rajwanshi which was conducted in his presence by one Sh. Singh Inspector, CBI. One other bank employee was also present there at that time. He stated that Ex.PW18/B1 to B5 and Ex.PW7/E to7/G are the documents which were recovered during the said search and bears his signatures.

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38.PW20 is Sh. Vinod Choudhary. He has deposed that in the year 1992 he was posted as Manager in Inspection Department of Oriental Bank of Commerce, Head Office, New Delhi. On 22.04.1992, he had accompanied the CBI team to Meerut for a search to be conducted in the house of Mr. Rajwanshi at Abu Lane. During the said search conducted in his presence certain documents were seized and his signatures were taken on all the said seized documents. Ex. PW18/A is the Seizure Memo, bearing his signatures, vide which the documents were seized during the said search.

39. PW21 is Sh. Amarjeet Singh Suri. He has deposed that in the year 1989 he was working as an Officer in Allahabad Bank, Lajpat Nagar Branch, New Delhi. He stated that document Ex. PW12/S3 is related to the opening of account of M/s. Vikram Enterprises by its proprietor Sh. Om Prakash Rajwanshi. with the Lajpat CC No.04/2011 Page 30/217 Nagar Branch of Allahabad Bank in 1989. Ex. PW21/A is the copy of signature card of O.P. Rajwanshi pertaining to the opening of the account in the name of M/s. Vikram Enterprises. He stated that documents Ex. PW21/A to PW21/D were handed over to CBI by one Sh. Bakshi and the said documents were seized by CBI vide Seizure Memo Ex. PW21/E.

40. PW22 is Ms. Promita Chaudhry. She stated that in November, 1989 she was posted as Clerk in New Bank of India, LBlock, Connaught Place. She deposed that Ex. PW10/C was filled up by her on the instructions of her Chief Manager Sh. V.K. Bhutiani. She prepared Mark 11/Y15 which is copy of statement of account of M/s. Vikram Enterprises.

41. PW23 is Sh. Surender Kumar. He stated that in June 1993, he was posted as Officer in Nehru Place Branch of Oriental Bank of Commerce. He deposed that CC No.04/2011 Page 31/217 Ex.PW23/A (colly.) and Ex. PW23/B are the specimen handwritings/signatures of Sh. Praveen Agarwal and Ms. Rashmi Agarwal, respectively, taken in his presence by Inspector S. Dagar in the CBI office and both these documents bear his (PW23) signatures at point A.

42. PW24 is Sh. P.R. Bakshi. He has deposed that in December,1993, he was posted as Manager (Advances) at Lajpat Nagar Branch of Allahabad Bank. He has corroborated the testimony of PW21 regarding handing over of the documents by him to CBI.

43. PW25 is Sh. P.K. Das. He has deposed that in April 1992, he was posted at Head Office,Board Secretariat, Connaught Place, New Delhi. He has stated that on 24.04.1992 the specimen signatures of Sh. V.K. Bhutiani were taken in his presence in the office of CBI, which are Ex. PW25/A1 to PW25/A9. On 03.05.1993, in his presence, specimen signatures of O.P. Rajwanshi were CC No.04/2011 Page 32/217 taken in CBI office, the same are Ex.PW 25/B1 to B30.

44. PW26 is Sh. Anil Kumar. He has deposed that in May 1993, he was posted as Officer in Nizamuddin Branch of Punjab National Bank. He has stated that on 20.05.1993 the specimen signatures of Sh. S. Mohd. Yusuf were taken by CBI officials in his presence and the same are Ex. PW26/A1 to Ex. PW26/A10. He has further stated that on 30.11.1993, specimen handwriting of Sh. O.P. Rajwanshi was taken by CBI officials in his presence which is Ex. PW26/B1 to Ex. PW26/B18.

45. PW27 is Devi Singh Palia. He deposed that in July 1993, he was posted at Nizamuddin West Branch of Punjab National Bank as Officer. He stated that on 20.07.1993 in his presence CBI had taken specimen of 'Key Impressions' of the typewriter make Remington 2000. He identified his signatures on Ex. PW27/A1 to A8.

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46. PW28 is Sh. D.K. Gupta. He has deposed that in November 1989 that he was working as Regional Manager, New Bank of India, Rajendra Place, New Delhi. Letter Ex. PW28/A pertains to permitting the PC and FBP limits to M/s. Vikram Enterprises. The said letter bear his signatures at point A. He further stated that Ex. PW10/D is the letter of recommendation bearing signature of Sh. Bhutiani. Ex. PW 10/E is the loan proposal bearing signature of Sh. V.K. Bhutiani at point A. Ex. PW10/F, PW10G are the credit reports pertaining to M/s. Vikram Enterprises bearing signature of V.K. Bhutiani at point A. Ex. PW10/H is the credit report pertaining to Sh. Neeraj Jain and bears signature of Sh. V.K. Bhutiani at point A. He has also deposed regarding certain formalities and procedure of advancement of the loan.

47. PW29 is Sh. J.K. Semwal. He has Retired as Dy. Director from National Institute of Criminology and CC No.04/2011 Page 34/217 Forensic Science, Rohini, Delhi, in year 2006. He deposed that in year 1993, he was working as Dy. Govt. Examiner of questioned documents, Shimla. He has given his opinion on the questioned documents which were forwarded to him by the then SP, CBI, SPE, Delhi to GEQD vide letter Ex. PW29/A. The opinion given by him is Ex. PW29/B. The reasons noted by him to arrive at opinion Ex. PW29B is Ex. PW29/B1. The questioned documents were also independently examined by Sh. Santokh Singh who also arrived at the same conclusion.

48. PW30 is Sh. Satish Dagar. He is the Investigating Officer of this case. He had deposed that after the registration of the FIR Ex.PW30/1 by the then S.P, CBI, SIUX, New Delhi, the investigation of this case was entrusted to him. Vide seizure memo Ex. PW30/2, he had taken over the records from Sh. K.C. Malik Officer Central Bank of India, Naya Bazar, Delhi. Vide seizure memos Ex. PW15/A, Ex. PW15/B, Ex. PW30/4 and Ex. CC No.04/2011 Page 35/217 PW30/5 he had seized the documents from Sh. Subhash Gupta Officer, State Bank of Travancore, R.K. Puram, New Delhi. Ex. 11/3 is the letter through which the Chief (Vigilance), New Bank of India had sent documents to SP, CBI and the same reached to him for the investigation of the case. Vide seizure memos Ex. PW11/1 and Ex. PW11/2, he had taken over the documents from Sh. R.K. Hazrati, Manager (Vigilance), New Bank of India, New Delhi. Vide Ex. PW30/3, he had taken over the documents from Sh. Sanjeev Dutta, Director, M/s. Dutta & Dutta Video Advertising & Ad Films Pvt. Ltd., New Delhi. Vide seizure memo Ex. PW21/E, he seized documents from P.R. Bakshi Deputy Manager, Allahabad Bank, Lajpat Nagar, New Delhi.

49. During the course of investigation, he had examined the witnesses and recorded their statements u/s 161 Cr.P.C. He had also taken the specimen signatures and specimen handwritings of all the accused persons as well as the CC No.04/2011 Page 36/217 specimen typewriting of Typewriter found in the office of Praveen Agarwal in the presence of independent witnesses vide Ex.PW25/B1 to B23 & Ex.PW26/B1 to B18 Ex.PW26/A1 to A10, Ex.PW23/A (collectively), Ex.PW23/B (collectively), Ex.PW25/A1 to A10 and Ex.PW27/A1 to A8. The said specimen handwritings, documents etc. were sent for forensic examination vide letter Ex. PW30/6 written by Sh. Satish Chander the then SP CBI, SIUX, New Delhi, to GEQD, Shimla. Certain additional documents were also sent to GEQD, Shimla for forensic examination vide letter dated 04.12.1993 Ex. PW30/7, bearing signatures of Sh. Kirhsan Lal Bansal Incharge of the Branch on the relevant day. The opinion of Sh. N.C. Sood Deputy GEQD was received in the office of SP, CBI, SIUX vide forwarding letter dated 13.10.1993 i.e. Ex. PW30/8 and the same was marked to him. Further opinion of Sh. J.K. Semwal i.e. Ex. PW29/B from GEQD Shimla, was received in the office of SP, CBI, SIUX, New Delhi, vide letter Ex. CC No.04/2011 Page 37/217 PW30/9 and was also marked to him.

50.Ex.PW30/10 is a confidential report dated 28.12.1989 issued by State Bank of Travancore with regard to M/s Vikram Enterprises. Ex.PW7/E is a receipt issued by Neeraj Jain to Hazi Guddar S. Abdul Karim. This receipt is with respect to the fact that Neeraj Jain had cancelled the order placed on the firm for the supply of material with the direction to return the entire amount after deducting Rs. 16000/. Ex.PW18/B2 is a receipt signed by Sh. O.P Rajwanshi confirming the receipt of Rs.14,64,000/ after having paid Rs.16,000/ towards expenses to M/s. Hazi Guddar S. Abdul Karim for executing the said order.

51.He further stated that during the investigation it was revealed that the credit facility to M/s. Vikram Etnerprises was sanctioned on 25.11.1989, whereas, the Letter of Credit against which supply was to be made was received by Standard Chartered Bank on 22.12.1989 i.e. after the CC No.04/2011 Page 38/217 credit facility had already been sanctioned. As per his testimony neither any business activity was carried out by O.P. Rajwanshi at 31, Ring Road, Lajpat Nagar i.e. the address of M/s. Vikram Enterprises and he ( O.P. Rajwanshi) was the employee of the father of Neeraj Jain. Nor he found any material or document to substantiate that there was actually any material shipped against the said Letter of Credit.

52.During the investigation, O.P. Rajwanshi had stated that the amount, receipt of which was recovered from his house, was taken by Neeraj Jain and he was not doing any business activity for which the said credit limit was being availed in the name of M/s. Vikram Enterprises.

53.He stated that Ex. PW12/D5X1 was a false document and thus was not relied upon on the basis of the conclusion arrived at during the investigation, as the same was prepared to show only the supply of material. CC No.04/2011 Page 39/217 Nor any proof of despatch of material was produced by M/s. Vikram Enterprises neither its premises showed any such business activity.

54.He further deposed that S. Mohd. Yusuf had facilitated in the withdrawal of the proceeds without actually making any supplies as he prepared false invoices to show supply of material to M/s. Vikram Enterprises and obtained bank Pay Orders for Rs. 12.65 Lacs and Rs. 2.25 Lacs out of the Packing Credit Limits released to M/s. Vikram Enterprises.

55.He stated that he did not personally visit the premises where the firm M/s. Multiple Traders existed. However, he examined the owner of the said premises Sh. Surjeet Singh, who stated that no such firm ever existed at the said address.

56.PW31 is Sh. Naresh Chandra Sood. He has retired as CC No.04/2011 Page 40/217 GEQD, Shimla. In the year 1993, he was working as Deputy Government Examiner of Questioned Documents. Vide Ex. PW30/6/A, the documents of this case were marked to him for examination. Ex. PW31/9 is the conclusion at which he arrived, after examination of the documents. Ex. PW31/10 is the reasons submitted by him for his opinion.

57.Thereafter, the statements of the accused persons u/s 313 Cr.P.C. were recorded.

58.Accused V.K. Bhutiani in his statement u/s 313 Cr.P.C. has stated that he was not involved in any conspiracy and is wrongly chargesheeted. The loan was disbursed and sanctioned as per the Rules of the Bank. The Bank was not supposed to inquire about the supplier. He has stated that he is innocent and has been falsely implicated. The witnesses have not deposed correctly. Despite seizing all the documents, the CBI has relied upon few CC No.04/2011 Page 41/217 documents and has withheld the documents which were in favour of the accused. He has made sincere efforts to recover the loan amount The investigation of the case is not proper. However, this accused did not examine any witness in his defence.

59.Accused Praveen Agarwal in his statement u/s 313 Cr.P.c. has stated that IO has not carried out free and fair investigation. The prosecution witnesses are interested witnesses and have deposed at the instance of CBI. He has stated that he is innocent and has not committed any offence. The IO has not relied upon the documents which were taken from him during investigation. He has led defence evidence.

60.Accused Rashmi Agarwal in her statement u/s 313 Cr.P.C. has stated that she is innocent and has been falsely implicated in this case. The witnesses have deposed at the instance of CBI and are interested CC No.04/2011 Page 42/217 witnesses. IO has not done proper and fair investigation and has deliberately concealed the documents which were seized during investigation. She has stated that her firm has duly delivered 1000 old silk sarees to M/s. Vikram Enterprises. She has led defence evidence.

61.Accused Neeraj Jain in his statement recorded u/s 313 Cr.P.C. has stated that he is innocent and has been falsely involved in this case by CBI. A false chargesheet was filed against him. The witnesses have falsely deposed against him at the instance of CBI. He states that he only stood as a guarantor of M/s. Vikram Enterprises and has already paid the outstanding amount to the bank being the guarantor. He never met S. Mohd. Yusuf and therefore, he had no occasion to issue any letter to him. Letters Ex. PW7/E, F, G and Ex. PW18/B1 were recovered from him. He has examined one witness in his defence.

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62.In defence, five witnesses were examined by the accused persons.

Evidence led by the accused

63.Sh. Bhagat Singh Process Server with Debt Recovery TribunalII, New Delhi was examined as DW1. He has brought the summoned record pertaining to O.A. No. 873/95 and R.C. No. 51/02 titled as New Bank of India Vs. M/s. Vikram Enterprises. The copies of the said record are Ex. DW1/1 to DW1/7 and the file of M/s. PNB Vs. Vikram Enterprises. He has also brought the file of M/s. PNB Vs. M/s. Vikram Enterprises and the copies of the documents, pertaining to said file, i.e. affidavit dated 16.03.2009, notice dated 23.07.1990 and written statement are Ex. DW1/9 to DW1/10, respectively.

64.Sh. Kamal Nain Sharma was examined as DW2. He was working as Accountant with M/s. Agarwal Jaitley & Co., Chartered Accountants during the period of 1985 to CC No.04/2011 Page 44/217 1989. From year 1989 to 1991, he worked with M/s. Dutta & Dutta Video Advertising Pvt. Ltd. He deposed that vide entry Ex. DW2/A dated 22.03.1990 the amount of Rs. Two Lacs was debited to the account of M/s. Multiple Traders on account of the money adjusted from the account of Sh. Sanjiv Dutta, one of the Director of M/s. Dutta & Dutta Video Advertising Pvt. Ltd. The relevant entry in this regard in the Cash Book Folio is Ex. DW2/B.

65.Sh. Pradip Gupta was examined as DW3. He is the elder brother of accused Praveen Agarwal. During the period of 1989 to 1991, he was employed with BHEL as Sr. Engineer and was residing in a rental accommodation at J3/99, Rajouri Garden, New Delhi - 27. He has deposed that accused Rashmi Agarwal is his sisterin law i.e. wife of Sh. Praveen Agarwal and was doing her business under the name & style of M/s. Multiple Trading Co. Ms. Rashmi Agarwal has stayed with his family in his CC No.04/2011 Page 45/217 house for about 34 months as the treatment of her daughter at AIIMS was going on. She has also done some trading business related to sarees etc. from the said premises which was objected to by the landlady of the house.

66.Sh. Deepak Jain was examined as DW4. He is an Handwriting expert. This witness has compared the questioned signatures with the admitted signatures of accused Neeraj Jain and has given the conclusion that the questioned signatures were not written by the writer of the comparative signatures i.e. Neeraj Jain. His report in this regard is Ex. DW4/A.

67.Sh. Sudhir Gupta was examined as DW5. He is a Chartered Accounts by profession and knows Sh. Praveen Agarwal for the last sixteen years. He stated that Praveen Agarwal is a man of integrity. He is very honest and hard working. Praveen Agarwal is also running a CC No.04/2011 Page 46/217 NGO by the name of 'Suniye' for hearing impaired children.

68. I have heard the Ld. P.P. for CBI, Sh. Ashish Agarwal Ld. Counsel for accused V.K. Bhutiani. Sh. R.K. Dhawan and Sh. Sanchit Dhawan Ld. Counsels for accused Praveen Agarwal, Sh. Jayant Mehta Ld. Counsel for accused Smt. Rashmi Agarwal and Ms. Rebaca M. John and Sh. Bhavook Chauhan, Ld. Counsels for accused Neeraj Jain. I have also perused the file, written submissions filed on behalf of the accused persons and also the case law relied upon by the defence counsels. Arguments of the Ld. P.P. for CBI.

69. The Ld. P.P. for CBI submitted that in order to cheat and defraud the New Bank of India, a conspiracy was hatched by the accused persons, namely V.K. Bhutiani, O.P. Rajwanshi, S. Mohd. Yusuf, Praveen Agarwal, Ms. Rashmi Agarwal and Neeraj Jain, in the month of CC No.04/2011 Page 47/217 NovemberDecember 1989. Accused Neeraj Jain was the mastermind of the conspiracy. Accused Praveen Agarwal had worked for executing this conspiracy, accused O.P Rajwanshi was used as the instrument to achieve the objectives of the conspiracy, accused Smt. Rashmi Agarwal and accused Sh. Mohd. Yusuf had rendered their assistance for executing the plan hatched under conspiracy. Accused S. Mohd. Yusuf expired before the framing of the Charge and as such no Charge was framed against accused S. Mohd. Yusuf. Accused O.P. Rajwanshi expired during the trial of the case.

70. In pursuance of the aforesaid criminal conspiracy accused O.P. Rajwanshi formed a proprietorship concern under the name and style of M/s. Vikram Enterprises. The said firm was a fictitious one and the address of the said firm at 31, Ring Road, Lajpat NagarIV, New Delhi, was provided by the accused Neeraj Jain, which was his (Neeraj Jain) residential address. It was contended that CC No.04/2011 Page 48/217 M/s. Vikram Enterprises never operated from the said premises. It was further submitted that documents Ex.PW12/J and PW12/K show that the residential address of both accused Neeraj Jain and accused O.P Rajwanshi have been given to be 31, Ring Road, Lajpat NagarIV, New Delhi.

71. It was submitted that accused O.P. Rajwanshi was known to accused Neeraj Jain as O.P. Rajwanshi was the employee of Sh. U.C. Jain who was running a business of electrical goods. Sh. U.C. Jain is the father of accused Neeraj Jain. The accused Neeraj Jain provided his address for mentioning the same in the loan application and other related documents for obtaining the loan from the Bank.

72. In pursuance of the criminal conspiracy accused persons planned to obtain a loan from New Bank of India, LBlock Connaught Place Branch, New Delhi. Accordingly, CC No.04/2011 Page 49/217 accused O.P. Rajwanshi applied for Credit Limit of Rs. 50 Lacs, in the form of Packing Credit Limit of Rs. 20 Lacs and Foreign Bill Purchase Limit of Rs. 30 Lacs, from the said branch of New Bank of India. Accused Neeraj Jain stood guarantor of M/s. Vikram Enterprises and had nd offered his DDA Flat No. 148C, TypeII/A, LIG, 2 Floor, Jhilmil Colony,Delhi, as security to the bank, in the form of negative lien. At the relevant time, accused V.K. Bhutiani was posted as the Sr. Manager, LBlock, Connaught Place Branch, New Bank of India, New Delhi.

73. The loan was to be obtained for exporting silk sarees by M/s. Vikram Enterprises to its overseas buyer M/s. Safe Rich Industries Ltd. Suite 2107A, 21F, Tower1, China Hongkong City. The loan was applied against Letter of Credit from Hongkong Bank.

74. In pursuance of the said criminal conspiracy a Current Account No. 7748 of M/s. Vikram Enterprises was got CC No.04/2011 Page 50/217 opened by accused V.K. Bhutiani in LBlock, Connaught Place Branch of New Bank of India, New Delhi, on the introduction of Sh. S.K. Bhola. It was submitted that Sh. S.K. Bhola had introduced the account of M/s. Vikram Enterprises on the asking of accused V.K. Bhutiani. It was contended that accused V.K. Bhutiani gave a false inspection report Ex. PW10/C and recommended the loan proposal of M/s. Vikram Enterprises to the Regional Office of New Bank of India. Accused V.K. Bhutiani also discussed the loan proposal of M/s. Vikram Enterprises with the Regional Manager Sh. D.K. Gupta and got the limit sanctioned in favour of M/s. Vikram Enterprises. It was submitted that accused V.K. Bhutiani did not conduct the PreSanction Inspection of M/s. Vikram Enterprises as per Rules and has given a false report and thus, has misused his official position as a public servant for favouring M/s. Vikram Enterprises.

75. It was submitted that it was the duty of the V.K Bhutiani CC No.04/2011 Page 51/217 to have taken note of the following :

(i) He should have seen as to whether the party applying the loan had any license etc. to import/export chemicals; Whether the party had any insurance with regard to silk sarees or the exports to be made.

(ii) He should have verified the address and credential of M/s. Vikram Enterprises. It was his duty to ascertain that in which capacity M/s. Vikram Enterprises was in possession of 31, Ring Road, Lajpat NagarIV, New Delhi.

(iii)He should have checked if the said establishment was registered under Shop Establishment Act.

(iv)The name of the previous banker given in the loan application was State Bank of Travancore, R.K. Puram Branch, New Delhi. Before recommending the loan, the accused V.K. Bhutiani should have verified the financial status of M/s. Vikram Enterprises and its dealing with other bankers including State Bank of Travancore, R.K. Puram Branch, New Delhi.

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(v) The collateral security offered for the loan was just worth Rs. 1.5 lacs, whereas the loan which was being sanctioned was Rs. 20 lacs. In other words the Bank Manager completely ignored the fact that the security being offered was grossly inadequate.

(vi) As per the information supplied in the Information for Preshipment and Postshipment Export Finance Form, it was noted that the silk garments were to be exported to M/s. Safe Rich Industries Ltd., Hongkong, China, and the same were to be procured in India from M/s. Haji Guddar S. Abdul Karim, Sabzi Mandi, Sadar, Meerut. The pay order after the sanction of the loan with regard to the purchase of the sarees was also made in favour of M/s. Multiple Traders though its name does not find mention anywhere in the loan application.

(vii) The Statements of Assets and Liabilities (Ex.PW12/J) would show that Sh. O.P Rajwanshi had jewellery worth Rs.1.90 lacs, loan of Rs.50,000/ and also capital investment in M/s. Vikram Enterprises of Rs.1,51,669/. CC No.04/2011 Page 53/217 The accused V.K. Bhutiani, however, took no care to find out if M/s. Vikram Enterprises or accused O.P. Rajwanshi were having the said capital. Similarly, accused V.K. Bhutiani did not ask for the valuation of the jewellery of accused O.P. Rajwanshi and of accused Neeraj Jain.

(viii) Before recommending the loan proposal the accused V.K. Bhutiani, Sr. Manager was also required to ensure that a proper search report with regard to the collateral security of the flat being offered by the guarantor Sh. Neeraj Jain had to be obtained, but this was not so done in accordance with the Rules and procedure of the Bank.

(ix)The recommendation made by accused V.K. Bhutiani (Ex. PW10/E) shows that the Branch of the accused V.K. Bhutiani was not a Foreign Exchange Branch, but still the foreign bill was recommended to be purchased. The explanation given by accused V.K. Bhutiani that his Manager Sh. D.B. Madan and Accountant Sh. V.K. Bhandari were well experienced in this regard, shows that accused V.K. Bhutiani was inclined to favour M/s. V.K. CC No.04/2011 Page 54/217 Enterprises for getting the Limits sanctioned in its favour.

76. It was contended that the loan was sanctioned and released to M/s. Vikram Enterprises in violation of the Guidelines Ex. PW28/DX2. It was necessary for accused V.K. Bhutiani that he should have taken Balance Sheets for last three years, Income Tax Returns for last three years, and also Wealth Tax Assessment Orders for the last three years of M/s. Vikram Enterprises along with the Loan Application Form. It was also required that exporter is holding the Exporter's Code No. issued by Reserve Bank of India. If the account was a new one, then Credit Report cum No Dues - No Objection Certificate was to be taken from the previous bankers of the borrower. It was contended that the accused V.K. Bhutiani has ignored all the Rules and Guidelines as provided in Ex. PW28/DX2.

77. Under the criminal conspiracy the role assigned to CC No.04/2011 Page 55/217 accused S. Mohd. Yusuf was that he would be the proprietor of M/s. Haji Guddar S. Abdul Karim which would supply raw material to M/s. Vikram Enterprises. In this regard accused O.P. Rajwanshi, Proprietor of M/s. Vikram Enterprises made an agreement between himself and accused S. Mohd. Yusuf, Proprietor of M/s. Haji Guddar S. Abdul Karim with respect to supply of material/goods by M/s. Haji Guddar S. Abdul Karim to M/s. Vikram Enterprises. The said agreement is Mark 11/Y2 and is dated 30.11.1989. This agreement was also witnessed by accused Praveen Agarwal.

78.It was contended that accused S. Mohd. Yusuf was merely a vegetable vendor at Meerut and he was not carrying on any kind of business of supplying the silk garments etc. It was argued that PW17 Abdul Wahid has very clearly deposed that Mohd. Yusuf has not done any business at 62686269, Quresh Nagar, Sadar Bazar, Delhi6. This address is of this witness and this witness CC No.04/2011 Page 56/217 has provided this address to Mohd. Yusuf on the request of his relatives. The Investigating Officer has also corroborated the testimony of PW17 Abdul Wahid. It was contended that S. Mohd. Yusuf did not supply any silk garments to M/s. Vikram Enterprises.

79. It was submitted that the receipt Ex. PW31/1 executed by S. Mohd. Yusuf for having received Rs. 4.35 Lacs from M/s. Vikram Enterprises and the letter dated 17.12.1989 addressed by S. Mohd. Yusuf to M/s. Vikram Enterprises providing the proforma invoices Ex. PW31/3 and PW31/4 for Rs. 20,10,000/ and Rs. 2.25 Lacs, respectively, are all forged documents, whereupon, the signatures of S. Mohd. Yusuf have been forged by accused O.P. Rajwanshi.

80. It was further contended that documents i.e. Statements of Account Mark P11/Y15, Ex. PW2/B, Ex. PW11/4 and Ex. PW11/5 show that Rs. 16.80 Lacs were released on CC No.04/2011 Page 57/217 two dates i.e. on 26.12.1989 and 28.12.1989 (Rs. 4.15 Lacs + Rs. 12.65 Lacs). After the release of said Limits the Pay Orders of Rs. 12.65 Lacs and Rs. 2.25 Lacs were issued in favour of M/s. Haji Guddar S. Abdul Karim by the New Bank of India, LBlock Connaught Place Branch, New Delhi, and the said amount was credited in the account of M/s. Haji Guddar S. Abdul Karim. However, no material was ever supplied to M/s. Vikram Enterprises by M/s. Haji Guddar S. Abdul Karim.

81. It was submitted that the said amount of Rs. 14.64 Lacs was ultimately received by accused Neeraj Jain from accused S. Mohd. Yusuf. As a token of having received this amount from accused S. Mohd. Yusuf, accused Neeraj Jain has given receipts documents Ex. PW7/E, PW7/F, PW7/G and PW18/B1 to accused S. Mohd. Yusuf. The said receipts are signed by accused Neeraj Jain and the receipts have been duly proved by PW7 Manoj Kumar Mittal.

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82. The role assigned to accused Ms. Rashmi Agarwal was that she being the Proprietor of M/s. Multiple Traders would also supply the material/goods to M/s. Vikram Enterprises. Accused Ms. Rashmi Agarwal is the wife of accused Praveen Agarwal. It was contended that M/s. Multiple Traders is also a fictitious firm as it has no address from where it was operating nor any material was ever supplied by the said firm of accused Ms. Rashmi Agarwal to M/s. Vikram Enterprises. It was contended that the account of M/s. Multiple Traders was opened in State Bank of Travancore, R.K. Puram Branch, New Delhi, and in the said account Pay Order received from New Bank Of India, LBlock Connaught Place Branch, New Delhi, was deposited. The accused Rashmi Agarwal has failed to prove that she has supplied Silk Sarees to M/s. Vikram Enterprises or that she has purchased the said Silk Sarees for supplying the same to M/s. Vikram Enterprises. It was also contended that the account books CC No.04/2011 Page 59/217 of M/s. Multiple Traders do not reflect the alleged transactions with M/s. Vikram Enterprises.

83. It was submitted that vide Pay Order (Ex. PW12/R2) issued by New Bank of India, an amount of Rs. 2.30 Lacs was credited in the account of M/s. Multiple Traders. But, in the loan application it was nowhere mentioned that goods would be procured from M/s. Multiple Traders for export. This also shows that accused Rashmi Agarwal was also a conspirator.

84. It was submitted that the loan application and the accompanying documents were filled in by accused Praveen Agarwal. Accused Praveen Agarwal had forged the signatures of Ashwani Kumar on invoice no. 3/89 of M/s. Multiple Traders and also on the receipt of Rs. One Lac showing the receiving of said amount from M/s. Vikram Enterprises on account of the material purchased by M/s. Vikram Enterprises against invoice no. 3/89. CC No.04/2011 Page 60/217 PW31 Sh. Naresh Chandra Sood has proved that invoice no. 3/89 (Ex. PW31/7) does not bear the signature of Ashwani Kumar and the signatures of Ashwani Kumar has been forged by Praveen Agarwal. Similarly, he has deposed that receipt (Ex. PW31/8) of Rs. One Lac purportedly signed by Ashwani Kumar is also forged by Praveen Agarwal as he has signed the same as Ashwani Kumar. It was contended that from the testimony of PW31 Sh. Naresh Chandra Sood coupled with the statement of PW14 Ashwani Kumar who has deposed that Ex. PW31/7 and Ex. PW31/8 do not bear his signatures, it is proved that Ex. PW31/7 and Ex. PW31/8 have been forged by accused Praveen Agarwal.

85. It was also contended that a flat bearing No. 148C, 2 Floor, LIG, DDA, TypeII/A, Jhilmil Colony, Delhi, was purchased by accused Praveen Agarwal from Ms. Madhu Anand in July 1989 for a consideration of Rs. 62000/. But, the said flat was not transferred in his name and later CC No.04/2011 Page 61/217 on, at the time of making the loan application before New Bank of India, LBlock, Connaught Place Branch, New Delhi, the said flat was got transferred in the name of accused Neeraj Jain for offering the said flat as security to the Bank as accused Neeraj Jain stood guarantor of M/s. Vikram Enterprises. It was argued that in order to adjust the payment of said flat with accused Neeraj Jain, accused Praveen Agarwal had prepared the bogus invoice no. 3/89 for an amount of Rs. 2.30 Lacs and bogus receipt of Rs. One Lac.

86. Ld. P.P. for CBI has further submitted that the certificate given by Sh. Praveen Agarwal (Ex. PW12/E) at the end of the Balance Sheet as on 26.12.1989 also appears to have been issued only for the sake of satisfying the bank record for the release of the funds.

87. It was further contended that the accused Praveen Agarwal had tried to show that his involvement in the CC No.04/2011 Page 62/217 entire process was nothing more than his professional services which he had given to M/s. Vikram Enterprises. That does not seem to be so. He clearly knew from the very beginning to the end that as to why the documents were being prepared and what was the oblique purpose of submission of those documents i.e to get the loan from the bank in the name of exporting sarees without any intention of exporting any goods and utilized the said money.

88.It was contended that accused Neeraj Jain was the mastermind and also the main beneficiary of the criminal conspiracy.

89. It was submitted that from letter dated 2.7.1990 (Ex.PW12/D5X20) written to the Chief Vigilance Officer of New Bank of India by accused Praveen Agarwal shows that there was meeting of minds between the accused persons and it also shows that how the criminal CC No.04/2011 Page 63/217 conspiracy was hatched by the accused persons.

90. The Ld. P.P. for CBI has relied upon the judgment of Hon'ble Supreme Court delivered on 22.08.2003 in the case of Nazir Khan & Ors. Vs. State of Delhi in Appeal (Crl.) 734 of 2003, wherein, it was held that direct evidence to prove the conspiracy is seldom available and the offence of conspiracy can be proved by circumstantial evidence also. It was contended that the conspiracy has been proved by way of circumstantial evidence and the chain of circumstantial evidence is complete in the present case. Reliance was also placed upon the judgment reported as AIR 1994 SC 1637, wherein, it was held that it is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. The only requirement is that conspiracy is said to be hatched when two or more persons agreed to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is CC No.04/2011 Page 64/217 designated as criminal conspiracy. Reliance was also placed on the judgment reported as AIR 1980 SC 439, to support the contention that direct evidence of conspiracy is not always available as the conspiracy is always hatched in secrecy.

91. The Ld. P.P. for the CBI has also placed reliance upon the judgment of Hon'ble Supreme Court of India decided on 21.10.1997 in the case of Gulzar Alishri Raj Mohd. Vs. State of Himachal Pradesh in Criminal Appeal No. 658 of 1996, to support the contention that the handwriting expert examined by accused Neeraj Jain should not be given weightage as so called experts have tendency to depose in favour of the person who pays him. It was contended that PW 7 Sh. Manoj Kumar Mittal has duly proved the receipts Ex. PW7/E, PW7/F and PW7/G, as he has identified the signatures of Neeraj Jain, being acquainted with the signatures of accused Neeraj Jain. Reliance was placed upon the judgment CC No.04/2011 Page 65/217 reported as AIR 1965 Patna 332. The said receipts prove that accused Neeraj Jain has received a major portion of the amount taken by way of loan from the Bank and thus, accused Neeraj Jain is the main conspirator in the present case. The Ld. P.P. submitted that the Investigating Officer could not take specimen signatures of accused Neeraj Jain for comparison as Neeraj Jain was abroad and therefore, no adverse inference should be taken in this regard. To support his contention, reliance was placed upon the judgment reported as 1967 SCR (1) 595 by the Ld. P.P. for the CBI.

92.It was contended by the Ld. P.P. for CBI that from the circumstances explained above, it is proved beyond doubt that the accused persons have entered into a criminal conspiracy to cheat and defraud New Bank of India. It was contended that accused O.P. Rajwanshi formed a bogus firm namely M/s. Vikram Enterprises for obtaining the loan from the bank. Accused persons, namely, O.P. CC No.04/2011 Page 66/217 Rajwanshi, Neeraj Jain and Praveen Agarwal have forged certain documents for getting the loan from New Bank of India, LBlock, Connaught Place Branch, New Delhi. Accused V.K. Bhutiani Sr. Manager, LBlock, Connaught Place Branch, New Delhi, misused and abused his position as a public servant as he recommended the loan proposal of M/s. Vikram Enterprises to the Regional Officer and got the loan sanctioned in the favour of M/s. Vikram Enterprises. In pursuance of the said criminal conspiracy current accounts of fictitious firms i.e M/s. Haji Guddar S. Abdul Karim, Proprietor S.Mohd. Yusuf and M/s. Multiple Traders, Proprietor Rashmi Agarwal were got opened by accused persons. In order to cheat the New Bank of India, LBlock, Connaught Place Branch, New Delhi, accused O.P. Rajwanshi forged the receipt for Rs. 4.35 Lacs purportedly issued by M/s. Haji Guddar S. Abdul Karim in favour of M/s. Vikram Enterprises. Accused Praveen Agarwal also forged invoice no. 3/89 for Rs. 2.30 Lacs and a receipt for Rs. One Lac purported to CC No.04/2011 Page 67/217 have been issued by M/s. Multiple Traders in favour of M/s. Vikram Enterprises for cheating the New Bank of India, LBlock, Connuaght Place Branch. New Delhi. The accused Persons also got released loan amount of Rs. 16.80 Lacs in the name of M/s. Vikram Enterprises by way of Pay Orders issued in favour of M/s. Haji Guddar S. Abdul Karim and M/s. Multiple Traders, by New Bank of India, LBlock, Connaught Place Branch. It was contended by the Ld. P.P. for CBI that from the documents proved on record, the prosecution has been able to prove its case beyond doubt.

Arguments of accused V.K. Bhutiani

93.It was submitted on behalf of the accused V.K. Bhutiani that he was working as Senior Manager at the relevant time. It was submitted that the prosecution has alleged that Sh. V.K. Bhutiani conducted PreSanction Inspection of M/s. Vikram Enterprise on 24.11.1989 and submitted a false report. It was submitted that the PreSanction CC No.04/2011 Page 68/217 Inspection of M/s. Vikram Enterprises was conducted on 24.11.1989 vide document D31 (Ex. PW10/C). None of the witnesses of prosecution has alleged that Document Ex. PW10/C is false. Nothing has been put forward by the prosecution as to how the said report Ex. PW10/C is false and nothing has been put to the accused in this regard in the statement of accused under section 313 Cr.P.C. It was submitted that in order to show that the said Inspection Report is false, the Investigating Officer PW31 Satish Dagar has tried to cover up the same during his examination. It was submitted that the explanation given by the Investigating Officer in his deposition that Ex.PW10/C is a false document, is only an afterthought. The prosecution has not led any cogent evidence to prove that Ex. PW10/C is false.

94. It was contended that the allegation of the prosecution that M/s. Vikram Enterprises was a nonexisting or a bogus firm is without any base. No evidence has been CC No.04/2011 Page 69/217 led by the prosecution to prove this charge. Rather, the prosecution has produced certain documents, such as Account Opening Forms showing the address of M/s. Vikram Enterprises, as 31, Lajpat NagarIV, New Delhi. It was further submitted that PW30 Satish Dagar never visited 31, Lajpat NagarIV, New Delhi, at the address of M/s. Vikram Enterprises. Had he visited the said address, then he would have recorded the statements of some persons in this regard and must have cited them as witness. Further, the documents Ex. PW21/C which is a letter written by the Manager, Allahabad Bank, Lajpat Nagar, New Delhi to the Manager New Bank of India, L Block, Connaught Place Branch, New Delhi and Ex. PW12/S2 which is an Account Opening Form of State Bank of Travancore, R.K. Puram Branch, New Delhi, vide which the account of M/s. Vikram Enterprises was opened in the said Bank clearly show that the address of M/s. Vikram Enterprises is 31, Ring Road, Lajpat NagarIV, Delhi.

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95.It was further submitted that prosecution has further alleged that accused V.K. Bhutiani himself visited the Regional Office and discussed the proposal with the Regional Manager, Sh. D.K. Gupta and got the Limits sanctioned on the same day. It was argued that there was nothing wrong in visiting the Regional Office and discussing the proposal with the Regional Manager, Sh. D.K. Gupta. It was contended that the loan was sanctioned by Sh. D.K. Gupta after consideration of the recommendation given by V.K. Bhutiani, which was also processed and gone through by the staff of Regional Office before according sanction. It was contended that accused V.K. Bhutiani was not the sanctioning authority of the loan.

96. It was contended that the allegation against accused V.K. Bhutiani that the facilities were sanctioned on single transaction basis instead of regular basis as CC No.04/2011 Page 71/217 recommended by him, is also without any base. In this regard, it was submitted that the letter D74 (Ex. PW10/D) suggests that accused V.K. Bhutiani recommended the loan for one transaction only and it was also suggested and recommended that if the party was successful in completing the supply order of the foreign buyer, then it can avail the loan on regular basis.

97. It was further submitted that prosecution has alleged that the Limits were sanctioned for the purpose of exporting silk garments by M/s. Vikram Enterprises, Proprietor Sh. O.P. Rajwanshi to its foreign buyers. Sh. O.P. Rajwanshi submitted an agreement dated 30.11.1989 entered between him and Sh. S. Mohd. Yusuf Proprietor of M/s. Haji Guddar S. Abdul Karim for supply of silk garments. It was alleged that S. Mohd. Yusuf was in fact a vegetable vendor at Meerut and had not done any business of garments. It was submitted in this regard that there is no Rule and regulation of the Bank which requires that the CC No.04/2011 Page 72/217 antecedents of supplier of a borrower are required to be verified by a Branch Manager. Except oral evidence of Manoj Kumar Mittal, nothing has been proved on record that S. Mohd. Yusuf was a vegetable vendor in Meerut. Contrary to above, there is documentary evidence to the effect that Mr. Manoj Kumar Mittal introduced the account of S. Mohd. Yusuf in Central Bank of India mentioning S. Mohd. Yusuf as Commission Agent and Exporter.

98. It was further argued that accused V.K. Bhutiani has not forged any document. However, GEQD Report establishes that Sh. O.P. Rajwanshi has forged signatures of S. Mohd. Yusuf and Praveen Agarwal has forged the signatures of Ashwani Kumar. It was submitted that there is no evidence against the accused V.K. Bhutiani that he was a party to the conspiracy whereby, the documents were forged signatures on the documents were forged.

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99.It was further submitted that the prosecution has further alleged that accused V.K. Bhutiani allowed the party to avail the Limits without even obtaining the Credit Reports from the existing bankers of M/s. Vikram Enterprises. In this regard it was argued that the information in this regard was taken by accused V.K. Bhutiani from the Books of Account of borrower during PreSanction Inspection dated 24.11.1989. However, as a precautionary measure accused V.K. Bhutiani had also got this information confirmed over telephone from the existing bankers of M/s. Vikram Enterprises. He was informed by the said banks over the phone that there was nothing negative or against the borrower M/s. Vikram Enterprises.

100.It was contended that the accused V.K. Bhutiani was regularly pursuing the matter in respect of the loan advanced to M/s. Vikram Enterprises. In this regard V.K. Bhutiani wrote letter Ex. PW10/A to M/s. Vikram CC No.04/2011 Page 74/217 Enterprises for inspection of the stocks and bills. He also wrote letters Ex. PW10/K, PW10/O, PW10/P, PW10/P7, PW10/P8 and PW10/I to the Regional Manager apprising him of the facts and situation. He wrote letter Ex. PW10/N informing the Regional Manager regarding follow up with Dy. Secretary, Foreign Trade Zone, Ministry of Commerce, Government of India, New Delhi. Accused V.K. Bhutiani also wrote letter Ex. PW10/P2 and P3 to accused O.P. Rajwanshi, Proprietor of M/s. Vikram Enterprises. The accused also wrote various letters to the Foreign Trade Zone, Ministry of Commerce, Government of India. It was submitted that if accused V.K. Bhutiani had been a party to the alleged conspiracy / fraud, he would not have written the above mentioned letters. Nor he would have pursued the case of loan recovery. The accused also suggested to take legal action by the Bank including seizure of goods lying at 31, Ring Road, Lajpat NagarIV, New Delhi. Further, he would have released the entire amount of PCL and FBP CC No.04/2011 Page 75/217 Limit, but he had released only the part of the sanctioned Limits. This clearly shows that the accused V.K. Bhutiani was not party to the conspiracy, if any. It was further submitted that although sanction was given by Regional Manager on 25.11.1989, V.K. Bhutiani did not allow disbursement of the loan till the receiving of Letter of Credit from the buyer. If the accused was involved in the alleged conspiracy, then V.K. Bhutiani could have disbursed the loan on 25.11.1989 itself without waiting for Letter of Credit.

101.It was contended that the prosecution has advanced arguments beyond the Chargesheet. The allegation of the prosecution that there were irregularities in submitting the loan application, whereas the Chargesheet does not talk about any such irregularity. It was contended that assertion of the Ld. P.P. that O.P. Rajwanshi had no Export License is without any merit as it is not the case of the CBI that O.P. Rajwanshi was not having any such CC No.04/2011 Page 76/217 Export License. Moreover, the said documents were seized by the Investigating Officer vide Search Memo (D88) but, the Investigating Officer had not stated in respect of the said documents during his deposition in the Court. The arguments of Ld. P.P. that M/s. Vikram Enterprises was not existing at the given address is without any base and this argument is beyond the Chargesheet.

102. It was submitted that the allegation of the prosecution that there is overwriting in the date in the Loan Application Form, is also false and frivolous. It was contended that the letter of M/s. Vikram Enterprises dated 24.11.1989 (page 10 of D74) which refers to the application for PCL and FBP Limit, clearly shows that loan application had been moved prior to 24.11.1989. The letters Ex. PW28/A also shows that loan application was dated 20.11.1989. Therefore, the allegation of the prosecution in this regard is false.

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103.It was further submitted that the allegation of the prosecution that collateral security was inadequate is also without any merit for the reason that had it been so, the sanctioning authority would have declined the sanction of loan to M/s. Vikram Enterprises. Moreover, PW8 Sh. B.B. Vij has also stated that the collateral security is not essential for advancement of every type of loan. In the present case, in order to secure the loan amount, the accused V.K. Bhutaini had taken the security by way of negative lien on the DDA flat of the surety accused Neeraj Jain.

104.The allegation of the prosecution that name of M/s. Multiple Traders has not been mentioned as one of the supplier in Ex.PW10/B, wherein only the name of M/s. Haji Guddar S. Abdul Karim had been mentioned, is without any force. It was contended that this is not an irregularity or illegality because there is no Rule which CC No.04/2011 Page 78/217 says that the name of the supplier has to be disclosed by the borrower at the time of taking the loan. The prosecution has not led any evidence that name of the supplier has to be necessarily disclosed at the time of sanctioning of the loan.

105.The prosecution has led no evidence that the Statement of Assets and Liabilities of O.P. Rajwanshi as on 20.11.1989 (Ex. PW12/J) was false. Prosecution has not led any cogent evidence in order to prove that Ex. PW12/J is false or fabricated document and hence, the contention raised by Ld. P.P. during the course of argument is without any merit. Similarly, the prosecution has not led any cogent evidence that the Balancesheet of M/s. Vikram Enterprises as on 30.10.1989 (Ex. PW12/O) is false or fabricated. The allegation of the prosecution that accused V.K. Bhutiani did not get the Search Report of the property is also a frivolous one for the reason that the Legal Search Report (D93) Ex. CC No.04/2011 Page 79/217 PW30/DX1 of Sh. Desh Raj Thakar Advocate is there on record and has been relied upon by the prosecution.

106.The argument of Ld. P.P. for CBI that the address of O.P. Rajwanshi as mentioned by him i.e. 31, Ring Road, Lajpat NagarIV, New Delhi, is in fact the address of Neeraj Jain, is without any merit. The property 31, Ring Road, Lajpat NagarIV, New Delhi, is a big property. Neeraj Jain and O.P. Rajwanshi were known to each other and for this reason Neeraj Jain stood as guarantor of the loan for O.P. Rajwanshi and had also offered his flat as security. The prosecution has not led any evidence that Neeraj Jain and O.P. Rajwanshi had given their false addresses nor this is the case of CBI as mentioned in the Chargesheet.

107.The prosecution has alleged that Agreement dated 30.11.1989 was executed between O.P. Rajwanshi and Mohd. Yusuf (Mark 11/Y2), which was also signed by CC No.04/2011 Page 80/217 accused Praveen Agarwal. This shows his involvement. It was alleged by the prosecution that loan was sanctioned on 25.11.1989. This agreement was for supply of goods by S. Mohd. Yusuf to O.P. Rajwnashi. It was contended that this Agreement Mark 11/Y2 has not been proved in accordance with law as it is a photocopy. There is no evidence as to when this document was submitted in the Bank. It was contended that there is no requirement of any Rule nor the prosecution has proved that this document was required to be submitted prior to the sanction of loan and, therefore, the argument advanced by the Ld. P.P. that loan was illegally sanctioned prior to the execution of this document, is without any force.

108.The allegation of the prosecution that M/s. Vikram Enterprises is a fictitious firm and not in existence is also without any merit. It was contended that this allegation does not form the part of chargesheet. The allegation that accused V.K. Bhutiani did not verify the fact that M/s. CC No.04/2011 Page 81/217 Vikram Enterprises was paying any tax or not, is also false as this is not mentioned in the Chargesheet. The allegation of the prosecution that M/s. Vikram Enterprises was a new firm is also without any merit as there is no Guidelines of the Bank which says that loan cannot be advanced to a new exporter. The allegation of the prosecution that there was no order placed by M/s. Saferich Industries Ltd. is also groundless as the prosecution has not led any evidence in this regard. The party has submitted the confirmed order No. 1/89 of M/s. Saferich Industries Ltd. and the same was seized by the CBI vide memo D88.

109.The allegation of the CBI that accused V.K. Bhutiani had got introduced the account of M/s. Vikram Enterprises through PW10 S.K. Bhola, is not sufficient to establish that accused V.K. Bhutiani was involved in any conspiracy or fraud. It is not the case of the prosecution that PW10 S.K. Bhola was pressurized by V.K. Bhutiani CC No.04/2011 Page 82/217 for introducing the account of M/s. Vikram Enterprises. Nor it is the case of the prosecution that O.P. Rajwanshi, Proprietor of M/s. Vikram Enterprises was not in fact the same person or that V.K. Bhutiani got this account introduced through PW10 S.K. Bhola and, therefore, only this evidence is not sufficient to prove the case of the prosecution.

110.The prosecution has relied on documents contained in D74 to show the subsequent conduct of the accused V.K. Bhutiani. It was submitted that all the documents contained in the said file D74 cannot be looked into as the said documents were not relied upon by the CBI while filing the chargesheet. The documents Ex. PW10/J, PW10/K, PW10/L, PW10/M, PW10/N, PW28/DX3, PW28/DX1, PW10/O, PW10/P1 to PW10/P9 were not part of the chargesheet and the same were not relied upon and therefore, these documents have been placed on record without the permission and any order of the CC No.04/2011 Page 83/217 Court coupled with the fact that exhibition of the said documents was objected to by the accused at the time of recording the evidence. Hence, the said documents cannot be read in evidence. It was further submitted that on perusal of certain documents contained in file D74, it is clear and established that accused V.K. Bhutiani had taken action against the borrower for recovering the dues of the Bank and at the same time he continuously reported about it to his senior officers.

111.The prosecution has alleged that accused V.K. Bhutiani has not complied with the guidelines contained in Ex. PW28/DX2. In this regard it was submitted that Ex. PW28/DX2 has not been proved by CBI and the same was not put to the accused V.K. Bhutiani in his statement u/s 313 Cr.P.C. It was contended that the accused V.K. Bhutiani has complied with all the Guidelines provided in Ex. PW28/DX2. It was contended that the Ld. P.P. for the CBI has advanced arguments beyond the allegations CC No.04/2011 Page 84/217 leveled in the chargesheet. All the Guidelines and other conditions were complied with by the accused V.K. Bhutiani, otherwise the sanctioning authority i.e. PW28 Sh. D.K. Gupta would not have sanctioned the loan. The contention of the Ld. P.P. for the CBI that the Letter of Credit was not proper is baseless and in this regard no evidence has been led by the prosecution. The allegations of the CBI that the accused V.K. Bhutiani did not verify or check the record of the borrower in respect of his dealings with the other bankers is also without any base as no evidence has been led in this regard.

112. The allegation of the CBI that Pay Order was released in favour of M/s. Multiple Traders without any document showing that there was an agreement between M/s. Multiple Traders & M/s. Vikram Enterprises for supply of the material is also vague and baseless. It is not the requirement of law that there must be an agreement in writing for supplying the material. The material can be CC No.04/2011 Page 85/217 supplied on being ordered verbally by the buyer.

113. The prosecution has failed to prove that the borrower M/s. Vikram Enterprises was not having any margin money with it is also vague and baseless. The prosecution has failed to lead any cogent evidence that a particular amount of money was required as a margin money and it has also failed to prove that the borrower was not having the margin money as required by the Guidelines of the bank.

114. It was contended that the prosecution has argued that the accused V.K. Bhutiani was acting out of the way for favouring M/s. Vikram Enterprises and he himself had taken the loan application and loan proposal to the Regional office for doing favour to M/s. Vikram Enterprises. It was submitted that this allegation is without any base as there is nothing wrong or unusual in taking the loan application personally to the Regional CC No.04/2011 Page 86/217 Office. There is no Rule or Guideline of the Bank which prohibits the Branch Manager to take the loan proposal or loan application personally to the Regional Office.

115. It was contended that there is no substance in the allegation that loan application bears the date of 30.11.1989 and the loan was sanctioned prior to the date of loan application. The loan application (part of D26) clearly shows that it is dated 20.11.1989. All the prosecution evidence talks about the loan application dated 20.11.1989. Hence, this allegation is baseless.

116. The allegation of the CBI that the accused V.K. Bhutiani has ignored the fact that accused Neeraj Jain has not taken NOC for mortgaging his DDA flat with the Bank. The prosecution has not led any evidence to show that such requirement was necessary and therefore, this contention raised during the course of arguments is without any merit.

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117. It was contended that the accused V.K. Bhutiani had taken all the steps and precautions to safeguard the interest of the Bank. Ex. PW28/DX1, Ex. PW10/K, PW10/L, Page nos. 122, 123, 124 and 127 of D74 show that the accused V.K. Bhutiani did everything to safeguard the interests of the Bank. The prosecution has also not placed on record the sanction letter whereby, the loan was sanctioned to the borrower. This fact goes against the prosecution and adverse inference has to be drawn against the prosecution for not placing on record the sanction letter.

118. It was contended that the accused V.K. Bhutiani was not the sanctioning authority. He has simply forwarded or at the most recommended the loan application of M/s. Vikram Enterprises to the Regional Manager who was the sanctioning authority. The loan in this case was sanctioned by the Regional Manager Sh. D.K. Gupta who CC No.04/2011 Page 88/217 has been examined as a prosecution witness. It was the duty of Sh. D.K. Gupta to ensure and satisfy himself that all the formalities and other requirements have been made . It was the duty of the sanctioning authority to sanction the loan after satisfying himself that everything was in order. Therefore, the fault or mistake, if any, was on the part of PW28 Sh. D.K. Gupta who has been made a witness instead of making him one of the accused by the Investigating Officer of the case for the reasons best known to the Investigating Officer. It was contended that accused V.K. Bhutiani is innocent and the prosecution has failed to prove its case against him. It was contended that the role of accused V.K. Bhutiani was only to recommend and forward the loan proposal/application of the borrower. In the present case also the accused V.K. Bhutiani had recommended the loan proposal of M/s. Vikram Enterprises in accordance with the Rules and procedure of the Bank.

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119. It was further alleged by the prosecution that the borrower will contribute 25 % as margin money and balance amount will be contributed by the Bank. In this regard it was submitted that in this case Rs. Twenty lacs was the amount which was to be disbursed and the amount of receipts submitted with the bank was Rs. 4,35,000/ of M/s. Hazi Guddar S. Abudl Karim and Rs. 1,00,000/ of M/s. Multiple Traders and, therefore, the total contribution of borrower was Rs. 5,35,000/ which was more than 25% of the amount to be disbursed.

120. It was contended that no evidence has come on record that V.K. Bhutiani was involved in any conspiracy or that he has misused his official position in any manner. Prosecution has failed to lead any evidence to prove the charges against accused V.K. Bhutiani.

Arguments on behalf of accused Mrs. Rashmi Agarwal.

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121.It was argued that the prosecution case in the charge sheet is based on a series of nonexisting and imaginary facts and circumstances. It was contended that no complaint or FIR has been lodged by the Bank Authorities. The FIR in this case was registered on the basis of source information, after two years of the alleged incident. It was contended that as per the internal investigation of the Bank Authorities, it was found that no criminality was there nor any offence was committed. The matter was of civil nature regarding recovery of the loan amount advanced by the Bank to accused O.P. Rajwanshi. The Bank has filed a suit for recovery in Debt Recovery Tribunal. In the proceedings before the Debt Recovery Tribunal, the surety i.e. accused Neeraj Jain has made the payment to the Bank. There is no loss caused to the bank or cheating ever done with the bank. Nor any fraud has been committed with the bank i.e. why no complaint has been made by the bank in this case. Therefore, no criminal offence, as alleged by the CC No.04/2011 Page 91/217 prosecution is made out in this case and the matter is entirely of civil nature. Even the CVC came to the conclusion that there was no criminality involved in this case. The Investigating Officer has ignored all these facts and has investigated the case unfairly with the sole motive to falsely implicate the accused persons in this case. The investigation was not fair and same was biased.

122. Accused Ms. Rashmi Agarwal is the wife of accused Praveen Agarwal and she is the Proprietor of M/s. Multiple Traders. It was contended that prosecution has alleged that Current Account No. 2043 of M/s. Multiple Traders was opened on 07.11.1988 in State Bank of Travancore, R.K. Puram Branch, New Delhi, on the introduction of Sh. Kamal Kishan Jaitely, partner of Praveen Agarwal in M/s. Agarwal Jeitely & Co. As per the chargesheet the conspiracy was hatched by the accused persons during period of NovemberDecember 1989. CC No.04/2011 Page 92/217 Thus, it is clear that the bank account of M/s. Multiple Traders was opened in State Bank of Travancore R.K. Puram Branch, New Delhi, much prior to the alleged period of conspiracy. Therefore, the allegation of the prosecution that the bank account of M/s. Multiple Traders was opened in pursuance of the criminal conspiracy hatched by the accused persons is falsified.

123. It was submitted that the allegation of the prosecution that M/s. Multiple Trades is a fictitious firm, is without any base. It is not the case of the prosecution nor it has been mentioned in the chargesheet that M/s. Multiple Traders is a fictitious firm. Investigating Officer has not conducted any investigation in this regard. It was submitted that the account No. 2043 of M/s. Multiple Traders with State Bank of Travancore, R.K. Puram Branch, New Delhi, was opened on 07.11.1988 and as per statement of account there were several other credits and debits in its bank account apart from Rs. 2,30,000/. CC No.04/2011 Page 93/217 Investigating Officer has deliberately not visited J3/99, Rajouri Garden, New Delhi, i.e. the address of M/s. Multiple Traders, to find out the truth. The Investigating Officer has not assigned any reason as to why he had not visited the said premises. PW12 Sh. Kamal Kishan Jaitely has proved the Balance Sheet of M/s. Multiple Traders for the year 19891990 and the Profit & Loss Account of M/s Multiple Traders for the year ending 31.03.1990. PW12 has also proved Income and Expenses details of M/s. Multiple Traders for the year ending 31.03.1990. Even PW14 Sh. Ashwani Kumar also deposed that he also used to look after the work of M/s. Multiple Traders while he was working with M/s. Agarwal Jaitely & Co. PW14 Sh. Ashwani Kumar has also deposed that he used to look after the work of Accounting and Banking of M/s. Multiple Traders. It was contended that it is proved from the statements of the prosecution witnesses that M/s. Multiple Traders was not a bogus firm and it was a genuine and existing firm. CC No.04/2011 Page 94/217

124. It was further contended that prosecution has falsely alleged that no sarees were supplied by M/s. Multiple Traders to M/s. Vikram Enterprises. It was contended that during the course of arguments, the Ld. P.P. for the CBI has raised the plea that the accused Rashmi Agarwal has failed to prove that she had in fact purchased silk sarees and subsequently she had supplied the said sarees to M/s. Vikram Enterprises. It was contended that the onus was on the prosecution to prove that accused Rashmi Agarwal did not supply the silk sarees to M/s. Vikram Enterprises. It was not the duty of the accused Rashmi Agarwal to prove that she had purchased the silk sarees for the reason that prosecution has to prove its case by leading admissible evidence. It was also contended that if the Investigating Officer wanted any co operation or assistance from accused Rashmi Agarwal, he could have interrogated the accused Rashmi Agarwal for collecting evidence. Admittedly, the accused Rashmi CC No.04/2011 Page 95/217 Agarwal was available to join investigation. The Investigating Officer had the power to interrogate accused Rashmi Agarwal, but he deliberately did not interrogate the accused Rashmi Agarwal on the said aspect. It was for the prosecution to prove that the sarees were not delivered by accused Rashmi Agarwal to M/s. Vikram Enterprises, but the prosecution has not been able to prove either by way of independent witness or through any documentary proof that the sarees were not delivered. The accused has discharged her onus that she has supplied the silk sarees to M/s. Vikram Enterprises, but the prosecution has failed to prove that silk sarees were not supplied by accused Rashmi Agarwal to M/s. Vikram Enterprises. It was contended that the settled position of law is that onus of proving all the ingredients of an offence lies upon the prosecution and at no stage does it shift to the accused. In this regard, reliance was placed upon the judgment reported as S.L. Goswami Vs. State of M.P. AIR 1972 SC 716.

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125. It was contended that the Investigating Officer has not acted fairly and he has withheld the important and material evidence in order to falsely implicate the accused persons. The accused Rashmi Agarwal has delivered the silk sarees on behalf of M/s. Multiple Traders to M/s. Vikram Enterprises and in this regard a delivery receipt Ex. PW12/D5X1 was obtained from M/s. Vikram Enterprises. This receipt was seized by the Investigating Officer during investigation, but he did not rely upon the said receipt. The explanation given by the Investigating Officer that this receipt was bogus, is without any merit and base for the reason that Investigating Officer did not conduct any investigation in order to ascertain that whether this receipt was genuine or bogus. The Investigating Officer was biased and bent upon to falsely implicate the accused and therefore, he did not rely upon the said receipt Ex.PW12/D5X1.

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126. The allegation of the prosecution that M/s. Multiple Traders received payment from bank by way of Pay Order without making any supply of sarees to M/s. Vikram Enterprises is false and baseless. The reason is that firstly, the receipt Ex. PW12/D5X1, whereby, M/s. Vikram Enterprises has acknowledged the delivery of sarees by M/s. Multiple Traders and secondly, the transaction has been duly reflected in the Balance Sheet Ex. PW12/D5X2 ending 31.03.1990, Profit & Loss Account Ex. PW12/D5X3 ending 31.03.1990, Income Tax Return for the assessment year 198990 Ex. PW12/D5X5 and Income Tax Return for the assessment year 199091 Ex. PW12/D5X11 of M/s. Multiple Traders. It was contended that all the said documents are public documents and the same were seized by the Investigating Officer during investigation. The Investigating Officer did not rely upon the said documents nor mentioned about the said documents in the chargesheet. It was contended that as the Investigating Officer has not relied upon the said CC No.04/2011 Page 98/217 documents seized during investigation, therefore, adverse inference has to be taken against the prosecution. In this regard, reliance was placed upon the judgements reported as AIR 1968 SC 1413 and AIR 1987 SC 856. In his crossexamination, the Investigating Officer has given the explanation that the said documents were not relied upon as the same were forged. It was contended that all the said documents are public documents and they were filed by the accused Rashmi Agarwal in the Income Tax Department much prior to the registration of the FIR. Moreover, the Investigating Officer did not make any attempt to verify regarding the genuineness or authenticity of the said documents.

127. It was contended that the allegation of the prosecution that accused Rashmi Agarwal is also a beneficiary of the conspiracy and the fraud committed with the Bank, is false and without any proof. The Pay Order of Rs. 2,30,000/ was deposited in the current account of CC No.04/2011 Page 99/217 M/s. Multiple Traders and the amount was credited in the account of M/s. Multiple Traders on 28.12.1989. The amount of Rs. 2.30 Lacs was received by M/s. Multiple Traders on account of the supply of silk sarees by M/s. Multiple Traders to M/s. Vikram Enterprises. This fact is proved by PW12/D5X1. Therefore, it is clear that this amount was received by M/s. Multiple Traders for supply of sarees to M/s. Vikram Enterprises and not otherwise.

128. With regard to allegation that name of M/s. Multiple Traders was not mentioned in the loan application as a supplier of silk sarees to M/s. Vikram Enterprises and this fact shows that accused Rashmi Agarwal was also a conspirator, it was submitted that this allegation is without any merit and force. It is not necessary for borrower to mention the name of the supplier from whom he is going to take the delivery of the raw material for manufacturing of goods and supply thereof to the proposed buyer. It was contended that there is nothing wrong in not CC No.04/2011 Page 100/217 mentioning the name of M/s. Multiple Traders in the loan application. It is well known fact that every purchaser can purchase the raw material from the person of his choice. It was contended that this fact rather shows that the accused Rashmi Agarwal was not a conspirator and it proves the stand of the accused that she was not a conspirator.

129. It was contended that the allegation of prosecution that accused Rashmi Agarwal has conspired with other co accused to cheat and defraud the Bank is also without any base. It was contended that the prosecution has failed to prove that the accused persons hatched a conspiracy to cheat and defraud New Bank of India. The prosecution has failed to prove even a single act of accused Rashmi Agarwal to show that she was a conspirator. It was contended that there is no direct evidence of conspiracy in the present case. The prosecution has based its case on circumstantial CC No.04/2011 Page 101/217 evidence to prove the charge of conspiracy. The prosecution has failed to prove any circumstances against the accused Rashmi Agarwal to connect her with the alleged offence of conspiracy. The accused Rashmi Agarwal has no role in grant of loan to M/s. Vikram Enterprises. The prosecution has also failed to prove that the accused Rashmi Agarwal was a beneficiary of the loan taken by accused O.P. Rajwanshi. It was contended that the prosecution has failed to prove that there was ever meeting of minds between the accused persons and in the absence thereof, the charge of conspiracy cannot be sustained. Reliance was placed upon a judgment reported as Sherimon Vs. State of Kerala AIR 2012 SC 498, wherein, it was held that there must be meeting of minds resulting in an ultimate decision taken by the conspirators regarding commission of offence.

130. It was contended that in this case the prosecution has CC No.04/2011 Page 102/217 failed to prove that the New Bank of India was ever cheated by the accused persons. The relevant ingredients to prove the offence of cheating are missing in the present case. It was submitted that the Hon'ble Supreme Court of India in a judgment reported as 2009 (4) JCC 2753 has held that there should not only be cheating, but the accused should have dishonestly induced the person deceived to deliver any property to any person or to make, alter or destroy wholly or in part a valuable security. It was contended that in the present case the prosecution has failed to prove all the said ingredients of the said offence.

131. It was contended that the accused Rashmi Agarwal have been harassed in an unwarranted manner. Further, the investigation is not free from infirmities leading to a genuine grievance on the part of the accused. Investigation was unfair and carried out with ulterior motives. The Investigating Officer has resorted to mischief CC No.04/2011 Page 103/217 and harassed the accused Rashmi Agarwal . It was contended that the Investigating Officer has not been fair and possibility of fabrication of evidence by withholding several documents cannot be ruled out. Investigating Officer has withheld several documents seized during investigation, at the time of filing the charge sheet so as to make out a false case against the accused persons. Further, Investigating Officer has not deposited the said seized documents in Malkhana nor filed the same along with the chargesheet. There are contradictory statements made by the Investigating Officer during his cross examination. It was further argued that a charge sheet is the outcome of an investigation.

132. It was contended that the prosecution has failed to prove its case against the accused Rashmi Agarwal. It was contended that the prosecution has failed to prove the essential ingredients of the offences with which the accused was charged, therefore, the accused is entitled CC No.04/2011 Page 104/217 to the benefit, as per the judgment reported as AIR 1980 SC 499. Reliance was also placed upon the judgments reported as AIR 1979 SC 1506, 1997 (3) Crimes 128 (SC), 1983 Criminal Law Journal 691 (2) and IV (1996) CCR 239 (SC).

Arguments on behalf of accused Praveen Agarwal

133. It was submitted that during the relevant period accused Praveen Agarwal was working as Chartered Accountant and was also looking the accounting and finance of M/s. Multiple Traders. Accused Praveen Agarwal is the husband of accused Rashmi Agarwal.

134. It was submitted that the first allegation against Accused Praveen Agarwal is that the loan application and the accompanying documents submitted by accused O.P. Rajwanshi to the bank, were filled by accused Praveen Agarwal. It was contended that during trial, the prosecution has failed to produce any CC No.04/2011 Page 105/217 witness/document/material before the Court to prove the said allegation. It was contended that the prosecution has failed to prove this allegation against accused Praveen Agarwal. It was submitted that the Investigating Officer (PW30) in his crossexamination conducted on 16.03.2013 has admitted that the handwriting of accused Praveen Agarwal did not match the handwriting on the loan application, as per GEQD.

135. It was contended that the allegation of the prosecution that accused Praveen Agarwal had purchased a flat nd bearing no. 148C, 2 Floor, LIG, DDA Flat, Type - II/A, Jhilmil Colony, Delhi, from Ms. Madhu Anand in July 1989 for Rs. 62000/ is also baseless and wrong. As per prosecution, out of the said amount, an amount of Rs. 42000/ was paid through cheques and Rs. 20000/ was paid in cash. It was contended that the case of the prosecution that accused Praveen Agarwal did not get the said flat transferred in his name and later on when the CC No.04/2011 Page 106/217 loan application was made by accused O.P. Rajwanshi, in New Bank of India, LBlock, Connaught Place Branch, New Delhi, for obtaining the loan, the said flat was got transferred in the name of accused Neeraj Jain who offered the said flat as security to the Bank in the form of negative lien, is also false and without any base. It was contended that the prosecution has not led any evidence to prove its said assertion. Nor the prosecution has produced or examined Ms. Madhu Anand as a witness to show that the said flat was sold to accused Praveen Agarwal by her. It was submitted that as per Ex. PW30/DX1 (D93), the said DDA flat was sold by Ms. Madhu Jain to accused Neeraj Jain vide Agreement to Sell dated 05.08.1989. It was submitted that Ex. PW30/DX1 is the opinioncumsearch report given by the Advocate of the Bank and it is not the case of the prosecution that Ex. PW30/DX1 is a false report. It was contended that the Investigating Officer during investigation has not seized any Agreement to Sell etc. or CC No.04/2011 Page 107/217 any kind of document showing sale of the said flat by Ms. Madhu Anand to accused Praveen Agarwal.

136. With regard to the allegation that on behalf of accused Praveen Agarwal the payments through cheques Ex. PW12/A to PW12/D were made to Ms. Madhu Anand, it was contended that mere transfer of money from accused Praveen Agarwal to Ms. Madhu Anand is no proof of any transaction with respect to the purchasing of flat by accused Praveen Agarwal from Ms. Madhu Anand. It was submitted that PW12 Sh. Kamal Kishan Jaitely has stated that cheques Ex. PW12/A and Ex. PW12/B were issued by him to Ms. Madhu Anand towards refund of professional fee. The other cheques Ex. PW12/C and Ex. PW12/D were issued by Sh. S.S. Agarwal, father of accused Praveen Agarwal. It was contended that the best evidence available with the prosecution was the witness Ms. Madhu Anand , who has not been examined by the prosecution and the other evidence which was CC No.04/2011 Page 108/217 available to the prosecution was statement of Sh. S.S. Agarwal who has also not been examined by the prosecution as a witness. It was submitted that as the prosecution has withheld the best evidence, therefore, an adverse inference has to be drawn against the prosecution, coupled with the fact that no documentary evidence has been produced by the prosecution to prove the sale of the said flat by Ms. Madhu Anand to accused Praveen Agarwal, leads to the conclusion that prosecution has failed to prove that the said flat was purchased by accused Praveen Agarwal from Ms. Madhu Anand.

137. It was contended that the allegation of the prosecution that accused Praveen Agarwal had forged the invoice Ex. PW31/7 and the receipt Ex. PW31/8 of Rs. One Lac is also false and baseless. It was contended that prosecution has failed to lead any cogent evidence to prove the said allegation. The motive alleged by the CC No.04/2011 Page 109/217 prosecution for forging the said invoice and receipt is to adjust the payment of the said flat with accused Neeraj Jain. Accordingly, accused Praveen Agarwal had prepared a bogus invoice No. 3/89 Ex. PW31/7 for Rs. 2.30 Lacs and he also forged a receipt Ex. PW31/8 for Rs. One Lac. It was contended that the prosecution has failed to prove that the accused Praveen Agarwal had purchased the flat from Ms. Madhu Anand and later on sold the same to accused Neeraj Jain. Therefore, the accused Praveen Agarwal had no occasion to forge the receipt and invoice as alleged by the prosecution.

138. It was contended that the prosecution has created and projected a false story showing that M/s. Multiple Traders received the amount from M/s. Vikram Enterprises was actually on account of sale of the flat by accused Praveen Agarwal to accused Neeraj Jain and the consideration of the said flat was adjusted by way of aforesaid mechanism i.e. by forging the invoice and receipt by accused Praveen CC No.04/2011 Page 110/217 Agarwal.

139. It was contended that the Investigating Officer has deliberately not relied upon Goods Delivery Receipt Ex. PW12/D5X1 as it proves that 1000 silk sarees were supplied by M/s. Multiple Traders to M/s. Vikram Enterprises and the payment made by accused O.P. Rajwanshi to accused Rashmi Agarwal was towards the said supply of silk sarees.

140. The allegation of the prosecution that invoice No. 3/89 Ex. PW31/7 for Rs. 2.30 Lacs and a receipt Ex. PW31/8 for Rs. One Lac were forged by accused Praveen Agarwal in pursuance of the criminal conspiracy for the purpose of disbursement of the loan amount to accused O.P. Rajwanshi, is also baseless and contrary to the documents relied upon by the prosecution. It was contended that invoice No. 3/89 Ex. PW31/7 for Rs. 2.30 Lacs and a receipt Ex. PW31/8 for Rs. One Lac CC No.04/2011 Page 111/217 were not used for any purpose or for disbursement of the loan. Even the said documents were not before the Bank at the time of disbursement of the loan to accused O.P.Rajwanshi. It was contended that this fact is clear from letter dated 29.03.1990 (Ex. PW28/DX1), whereby, the bank had advised the borrower to submit original bills of purchase. The letter dated 10.02.1990 relied upon by the prosecution also shows that invoice No. 3/89 Ex. PW31/7 for Rs. 2.30 Lacs and a receipt Ex. PW31/8 for Rs. One Lac were not before the Bank at the time of disbursement of the loan to accused O.P. Rajwanshi.

141. It was contended that to prove the charge of forgery, the circumstances under which forgery was made have to be stated. To support this contention reliance was placed upon a judgment reported as AIR 1983 SC 352.

142. It was agitated that the case of the prosecution is that accused Praveen Agarwal had forged the invoice No. CC No.04/2011 Page 112/217 3/89 Ex. PW31/7 for Rs. 2.30 Lacs and a receipt Ex. PW31/8 for Rs. One Lac on behalf of M/s. Multiple Traders whose owner is accused Rashmi Agarwal. Accused Rashmi Agarwal has nowhere alleged that invoice No. 3/89 Ex. PW31/7 for Rs. 2.30 Lacs and a receipt Ex. PW31/8 for Rs. One Lac have been forged by someone on behalf of her firm M/s. Multiple Traders. Even otherwise, the delivery of the silk sarees by M/s. Multiple Traders to M/s. Vikram Enterprises has been proved by Ex. PW12/D5X1 and the payment for the said supply was made by the Bank by way of Pay Order and therefore, there was no occasion for the accused Praveen Agarwal to forge invoice No. 3/89 Ex. PW31/7 for Rs. 2.30 Lacs and a receipt Ex. PW31/8 for Rs. One Lac. The Income Tax Return and Balance Sheet of M/s. Multiple Traders also reflect having received the payment from M/s. Vikram Enterprises, therefore, the question of forging invoice No. 3/89 Ex. PW31/7 for Rs. 2.30 Lacs and a receipt Ex. PW31/8 for Rs. One Lac does not CC No.04/2011 Page 113/217 arise.

143. The prosecution has not placed on record the Loan Sanction Letter and in the absence of this letter, the terms and conditions under which the loan was advanced to M/s. Vikram Enterprises have not been proved and therefore, it cannot be said that whether any invoice or receipt was required by the Bank at the time of advancement of the loan to accused O.P. Rajwanshi.

144. It was contended that apart from the statement of handwriting expert, there is no other evidence to prove that invoice No. 3/89 Ex. PW31/7 for Rs. 2.30 Lacs and a receipt Ex. PW31/8 for Rs. One Lac were forged by accused Praveen Agarwal. It was contended that conviction cannot be based solely on the opinion of handwriting expert without any independent corroboration. To support this contention reliance was placed upon the judgements reported as 1985 Cr.LJ CC No.04/2011 Page 114/217 1401 (Orissa), AIR 1979 SC 1011 and (1996) 4 SCC

596.

145. It was further submitted that the evidence of the handwriting expert PW31 does not inspire confidence as Ex. PW31/9 has been jointly signed by two persons and the other expert who has signed Ex.PW31/9 has not been examined. The reason for opinion Ex. PW31/10 were obtained personally along with the file of the department, despite the fact that at the time of his deposition, PW31 Sh. Naresh Chand Sood was not in service and it is strange as to how the file of the department was brought by him. Therefore, tempering of the department file brought by him personally after his retirement, cannot be ruled out. To support his contention, reliance was placed upon the judgment reported as (2007 ) 147 PLR 122. The reason for opinion of the other expert who has signed the report have not been brought on record. This also creates a doubt. CC No.04/2011 Page 115/217

146. It was contended that invoice No. 3/89 Ex. PW31/7 for Rs. 2.30 Lacs and a receipt Ex. PW31/8 for Rs. One Lac have not been proved in accordance with law as the said documents have been exhibited only in the statement of PW31 Sh. Naresh Chandra Sood. Mere exhibition of documents does not prove the contents thereof. To support this contention, reliance was placed upon the judgements reported as AIR 1971 SC 1865 and (2003) 8 SCC 745.

147. It was contended that no evidence has been led by the prosecution to prove that the Bank has been cheated or defrauded. The Bank has not suffered any loss as the accused Neeraj Jain has made the payment to the Bank in Debt Recovery Tribunal. In this case the Bank has not filed any complaint or lodged any FIR. The FIR in this case was lodged after two years that too on the basis of source information, this also creates a doubt in the CC No.04/2011 Page 116/217 prosecution story.

148. It was contended that the prosecution has failed to prove that the accused persons hatched a criminal conspiracy or that the accused Praveen Agarwal was also a conspirator. It was contended that to prove the charge of conspiracy the prosecution has based its case on circumstantial evidence and there is no direct evidence of conspiracy in the present case. The prosecution has failed to prove the complete chain of events and circumstance against the accused Praveen Agarwal to connect him with the alleged offence of conspiracy. Reliance in this regard was placed upon a judgment reported as Sahadevan Vs. State of Tamil Nadu AIR 212 SC 2435, wherein it was held that in case of circumstantial evidence, the onus lies upon the prosecution to prove the complete chain of events which shall undoubtedly point towards the guilt of the accused. CC No.04/2011 Page 117/217

149. It was contended that the prosecution has also failed to prove that the accused Praveen Agarwal has cheated and defrauded the Bank or that accused Praveen Agarwal was a beneficiary of the loan taken by accused O.P. Rajwanshi. It was contended that the prosecution has failed to prove that there was ever meeting of minds between the accused persons and in the absence thereof, the charge of conspiracy cannot be sustained. Reliance was placed upon a judgment reported as Sherimon Vs. State of Kerala AIR 2012 SC 498, wherein, it was held that there must be meeting of minds resulting in an ultimate decision taken by the conspirators regarding commission of offence.

150. It was contended that the prosecution has failed to prove the essential ingredients of the offences with which the accused was charged, therefore, the accused is entitled to the benefit. Reliance in this regard was placed upon the judgements reported as AIR 1973 SC 2773, CC No.04/2011 Page 118/217 1992 Cr.LJ 3287 and 1981 Cr.LJ 325.

151. It was contended that in this case the prosecution has also failed to prove that the New Bank of India was ever cheated by the accused persons. It was contended that the investigation suffers from infirmities leading to a genuine grievance on the part of the accused. Investigation was unfair and carried out with ulterior motives. It was contended that at the time of filing the chargesheet, the Investigating Officer has withheld several documents seized during the investigation, to make out a false case against the accused persons. Arguments on behalf of accused Neeraj Jain

152.It was submitted on behalf of accused Neeraj Jain that as per the allegation of the prosecution accused Neeraj Jain was the main beneficiary of the fraud committed with the Bank. Accused Neeraj Jain had received Rs. 14,64,000/ out of the loan amount CC No.04/2011 Page 119/217 advanced by the Bank. To prove the alleged fact, the prosecution has relied upon the letters Ex. PW7/E, 7/F, Ex. 7/G and Ex. PW18/B1 (D75) dated 27.01.1990 allegedly issued by accused Neeraj Jain in favour of accused S. Mohd. Yusuf. As per prosecution case, vide the said letters Ex. PW7/E, 7/F, Ex. 7/G and Ex. PW18/B1, the accused Neeraj Jain has confirmed that he had received Rs. 14.64 Lacs from M/s. Haji Guddar S. Abdul Karim. The said letters were allegedly seized from the house of accused O.P. Rajwanshi on 22.04.1992, during investigation. It was submitted that the aforesaid allegations are false. It was contended that prosecution has failed to prove this allegation and Ex. PW7/E, 7/F, Ex. 7/G and Ex. PW18/B1 have not been proved in accordance with law.

153. It was further contended by the Ld. Counsel for accused Neeraj Jain that the investigation conducted by Investigating Officer is motivated and unfair. It was CC No.04/2011 Page 120/217 contended that the alleged letters Ex. PW7/E, 7/F, Ex. 7/G and Ex. PW18/B1 have not been proved in accordance with law. The account of S. Mohd. Yusuf was introduced by PW7 Manoj Kumar Mittal in the Central Bank of India which shows his proximity with accused S. Mohd. Yusuf. The said letters Ex. PW7/E, 7/F, Ex. 7/G and Ex. PW18/B1 were exhibited in the examination of PW7 Sh. Manoj Kumar Mittal who had no occasion to see accused Neeraj Jain writing and signing. PW7 Sh. Manoj Kumar Mittal has falsely identified the signatures of accused Neeraj Jain on the said letters. It was contended that the testimony of PW7 whereby, the prosecution wants to prove the said letters is of no use or help for the prosecution for the reason that PW7 Sh. Manoj Kumar Mittal has not even identified the accused Neeraj Jain in the Court. It was contended that PW7 Manoj Kumar Mittal is not a reliable witness as his testimony was shaken in his crossexamination as he has failed to show any document to show that he was the CC No.04/2011 Page 121/217 partner of Maxwell India or that he used to visit Sh. U.C. Jain for placing orders with him. PW7 Sh. Manoj Kumar Mittal failed to give the details of the documents whereupon he used to see accused Neeraj Jain putting his signatures. Even PW7 Sh. Manoj Kumar Mittal could not tell that whether Sh. U.C. Jain or the accused Neeraj Jain was owner of the company with whom he used to place orders for supply of the goods.

154. It was contended that the prosecution has failed to produce any material in the Court on which PW7 Sh. Manoj Kumar Mittal claims familiarity with the handwritings and signatures of accused Neeraj Jain. Therefore, the testimony of PW7 Sh. Manoj Kumar Mittal has to be disbelieved. Reliance in this regard was placed upon IV (2013) DLT Criminal 635.

155. It was further contended that even if for the sake of arguments, it is presumed that signatures of accused CC No.04/2011 Page 122/217 Neeraj Jain have been proved on Ex. PW7/E, 7/F, Ex. 7/G and Ex. PW18/B1, even then the prosecution has failed to prove its case against accused Neeraj Jain, that he has received Rs. 14.64 Lacs from S. Mohd. Yusuf, for the reason that proof of signature is not proof of document. Reliance in this regard was placed upon a judgment reported as AIR 1982 Bombay 387.

156. It has been further argued that PW30 Investigating Officer had sent various documents to GEQD for examination of the questioned handwriting along with the specimen handwriting/signatures of other accused persons. The Investigating Officer did not send the specimen signatures of accused Neeraj Jain for expert opinion for the reasons best known to the prosecution. The explanation given by the Investigating Officer is that specimen signatures of accused Neeraj Jain could not be send to GEQD as the accused Neeraj Jain was out of country and on this account his specimen signatures CC No.04/2011 Page 123/217 could not be obtained. This explanation given by the Investigating Officer is without any base and by giving this explanation, Investigating Officer has tried to cover up his mistake. It was contended that accused Neeraj Jain stood guarantor of accused O.P. Rajwanshi. It is also admitted fact that accused Neeraj Jain has signed the loan application of accused O.P. Rajwanshi as his guarantor. It was contended that specimen signatures/admitted signatures of accused Neeraj Jain were available with the Investigating Officer who has relied upon the loan application moved by the accused O.P. Rajwanshi. The prosecution has proved the loan application and other related documents during the trial. It was contended that the prosecution has also relied upon Ex. PW12/K which is statement of assets and liabilities of accused Neeraj Jain. This document has been proved by the prosecution and as per prosecution, signatures of Neeraj Jain are available on this document at point A on both the pages. It was contended that CC No.04/2011 Page 124/217 despite having the admitted signatures of accused Neeraj Jain with him, the Investigating Officer did not send the same to GEQD and therefore, adverse inference has to be taken against the prosecution.

157. It was contended that the prosecution has failed to prove the Ex. PW7/E, 7/F, Ex. 7/G and Ex. PW18/B1 in accordance with law and on the other hand, the accused Neeraj Jain has proved that the said letters do not bear his signatures. To prove his stand, accused Neeraj Jain has examined DW4 Sh. Deepak Jain, Handwriting Expert who has deposed that letters Ex. PW7/E, 7/F, Ex. 7/G and Ex. PW18/B1 do not bear the signatures of accused Neeraj Jain. It was urged that the testimony of DW4 Sh. Deepak Jain has to be believed as the settled law is that the testimony of the defence witness is at par with that of the prosecution witness. Reliance was placed upon AIR 1982 SC 911.

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158.It was further submitted that the CBI has alleged that the accused Neeraj Jain was also a conspirator. To prove the alleged conspiracy the prosecution has concocted a false story that the accused Praveen Agarwal had purchased a flat from Ms. Madhu Anand for Rs. 62,000/ in July, 1989. Subsequently the said flat was transferred in the name of accused Neeraj Jain in September, 1989 for offering the said flat as a Negative Lien, as under the conspiracy the accused Neeraj Jain was to stand guarantor for the loan to be taken by the accused O.P. Rajwanshi. The bill of Rs. 2.30 lacs and the invoice of Rs. One lac raised by M/s. Multiple Traders in favour of M/s. Vikram Enterprises were forged documents and were prepared to adjust the payments with accused Neeraj Jain. It was submitted that accused Neeraj Jain has only stood as a guarantor for M/s. Vikram Enterprises and also offered negative lien on his property i.e. Flat No. 148C, 2nd Floor, LIG, DDA Flat, TypeII/A, Jhilmil Colony, Delhi, and there is no criminality if a person stands as guarantor CC No.04/2011 Page 126/217 to a legal transaction. Ms. Madhu Anand was not examined as a witness in this case to prove the fact that accused Praveen Agarwal had purchased the flat from Ms. Madhu Anand. It was further submitted that mere transfer of money to Ms. Madhu Anand by accused Praveen Agarwal is no proof of any transaction with respect to the flat. It has been clarified by PW12 Kamal Kishan Jaitely that the cheques Ex. PW12/A to PW12/D were given to Ms. Madhu Anand towards refund of professional fee. PW12 Sh. Kamal Kishan Jaitely who was partner of accused Praveen Agarwal has also deposed that cheques Ex. PW12/A and Ex. PW12/B were issued to Ms. Madhu Anand under his signatures and cheques Ex. PW12/C and PW12/D were issued by Sh. S.S. Agarwal. Therefore, under these circumstances, the CBI has failed to prove that the accused Praveen Agarwal had purchased a flat from Ms. Madhu Anand and subsequently, he transferred the said flat in the name of accused Neeraj Jain.

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159.It was contended that as per the allegation of CBI the credit facilities to M/s. Vikram Enterprises had been sanctioned on 25.11.1989, whereas Letter of Credit against which the supply was to be made was received from Standard Chartered Bank on 22.12.1989 i.e. after the credit facilities had already been sanctioned. In this regard it was argued by Ld. Counsel for the accused that it is not the case of the prosecution that Letter of Credit offered as security to the bank was not of sufficient value to safeguard the interest of the bank. It was further submitted that it is an admitted case of the prosecution that the Letter of Credit received from the Standard Chartered Bank was submitted with the New Bank of India by accused Sh. O.P. Rajwanshi on 26.12.1989 and only thereafter the Limits were released to M/s. Vikram Enterprises. It was further submitted that the liability of accused Neeraj Jain was that of a guarantor. Being the guarantor of accused O.P. Rajwanshi, he has also offered CC No.04/2011 Page 128/217 his flat as a negative lien. As per Report Ex. PW30/DX1 given by Sh. Desh Raj Thakar, Advocate, the said flat of surety accused Neeraj Jain was having a good title. His liability was to pay the loan amount to the Bank. In case, the payment was not made by the borrower. In this case the surety i.e. accused Neeraj Jain has made the payment to the Bank and has satisfied the claim of the Bank by making the payment to the Bank during the proceedings of the case filed by the Bank in the Debt Recovery Tribunal.

160. It was submitted that as per prosecution the accused Neeraj Jain had introduced accused S. Mohd. Yusuf to PW7 Manoj Mittal. In this regard it was submitted that PW7 had stated in his evidence that accused O.P. Rajwanshi had introduced S. Mohd. Yusuf to PW7 Manoj Mittal as an exporter. The allegation of the prosecution that M/s. Vikram Enterprises was a bogus firm and accused O.P. Rajwanshi was an employee of father of CC No.04/2011 Page 129/217 accused Neeraj Jain, is also baseless and without any proof. In this respect, it was submitted that there is no cogent evidence to show that accused O.P. Rajwanshi was an employee of the father of accused Neeraj Jain. PW7 Manoj Kumar Mittal has failed to show that he had any business association with Sh. U.C. Jain who is father of accused Neeraj Jain. Even the prosecution witness i.e. PW12 Sh. Kamal Kishan Jaitely, partner of accused Praveen Agarwal has categorically stated that accused O.P. Rajvanshi was Proprietor of M/s. Vikram Enterprises.

161.It was further contended that prosecution has relied upon various documents to show that accused Neeraj Jain was the main beneficiary of the conspiracy and the fraud committed with the Bank. It was submitted that the said documents are mostly letters written by accused V.K. Bhutiani to the bank authorities or other authorities. The said letters written by accused V.K. Bhutiani were based on the information provided by the other accused persons CC No.04/2011 Page 130/217 or by some other persons and thus, the letters written by accused V.K. Bhutiani are at the most in the form of hearsay evidence which is not admissible. To support this contention reliance was placed upon the judgement reported as 2011(2) SCC 532. It was also contended that accused S. Mohd. Yusuf and accused O.P. Rajwanshi have expired and thus, there was no occasion for them to crossexamine any witness and therefore, the documents or the letters relied upon by the prosecution regarding the correspondence between accused V.K. Bhutiani, accused O.P. Rajwanshi and accused S. Mohd. Yusuf, have received no corroboration from accused O.P. Rajwanshi and S. Mohd. Yusuf and therefore, they have no evidentiary value. In this regard reliance was placed upon the judgment reported as 2004 (72) DRJ 693. It was also contended that the admission of coaccused cannot be used against another accused, until they are inculpatory. In this regard, reliance was placed upon the judgment reported as 1997 (8) SCC 32.

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162. It was further submitted that the allegation of conspiracy has also not been proved by the prosecution. It was submitted that prosecution has failed to lead any admissible and cogent evidence to prove that accused Neeraj Jain had at any stage entered into any criminal conspiracy with any of coaccused in order to cheat or defraud the New Bank of India. It was submitted that a few bits here and few bits there on which the prosecution relies is not sufficient for connecting the accused with the commission of the crime of criminal conspiracy. To support this contention, reliance was placed upon the judgment reported as 2000 (SCC) Criminal 1474. It was contended that the concurrence between the parties cannot be inferred by a group of irrelevant facts artfully arranged as to give an appearance of coherence. In this regard, reliance was placed upon the judgement reported as AIR 1988 SC 1883.

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163. It was submitted that as the accused Neeraj Jain was guarantor to the loan taken by accused O.P. Rajwanshi from the Bank and therefore, the liability of accused Neeraj Jain was only to pay the loan amount to the bank in the case of default committed by the borrower accused O.P. Rajwanshi regarding the repayment of the loan to the Bank. Hence, the liability of the accused Neeraj Jain was a civil one and he cannot be prosecuted for any criminal offence. Reliance in this regard was placed upon the judgment reported as 2009 (3) SCC 78. It was also submitted by the Ld. Counsel for accused Neeraj Jain that the accused Neeraj Jain has discharged his liability by making the payment of the loan amount to the Bank and therefore, the accused Neeraj Jain has no liability in this case.

164. It was contended by the Ld. Counsel for accused Neeraj Jain that the prosecution has failed to prove its case against the accused Neeraj Jain and also against CC No.04/2011 Page 133/217 any other accused. Therefore, the accused Neeraj Jain is entitled to be acquitted of the charges against him. Discussion

165. The case of the prosecution against the accused persons is that the accused persons had entered into a criminal conspiracy during the period of November and December 1989, for the purpose of cheating the New Bank of India. They also conspired to forge documents for getting the loan sanctioned in favour of accused O.P. Rajwanshi Proprietor of M/s. Vikram Enterprises. In pursuance of the said criminal conspiracy a loan of Rs. 16.80 Lacs was released in favour of M/s. Vikram Enterprises. Two pay orders dated 26.12.1989 and 28.12.1989 for Rs. 2.25 Lacs and Rs. 12.65 Lacs, respectively, were released in favour of M/s. Haji Guddar S. Abdul Karim of which accused S. Mohd. Yusuf is Proprietor. One Pay Order for Rs. 2.30 Lacs was released in favour of M/s. Multiple Traders of which CC No.04/2011 Page 134/217 accused Rashmi Agarwal is Proprietor. In pursuance of the aforementioned criminal conspiracy accused O.P. Rajwanshi forged one receipt of Rs. 4.35 Lacs purportedly issued by M/s. Haji Guddar S. Abdul Karim in favour of M/s. Vikram Enterprises and he also forged one letter dated 17.12.1989 purported to have been written by M/s. Haji Guddar S. Abdul Karim to M/s. Vikram Enterprises. This was so done by accused O.P. Rajwanshi in pursuance of the criminal conspiracy for cheating New Bank of India and for obtaining the loan from New Bank of India. The other allegation is that in pursuance of the said criminal conspiracy, accused Praveen Agarwal forged one invoice of Rs. 2.30 Lacs purported to have been issued by M/s. Multiple Traders proprietorship concern of accused Rashmi Agarwal. The said invoice was in the name of M/s. Vikram Enterprises. This invoice was also used for cheating New Bank of India for the purpose of disbursement of the loan amount to accused O.P. Rajwanshi. It is also alleged by the CC No.04/2011 Page 135/217 prosecution that in pursuance of the above stated criminal conspiracy accused Praveen Agarwal also forged one receipt of Rs. One Lac purportedly issued by M/s. Multiple Traders in favour of M/s. Vikram Enterprises. This forged receipt was also issued for cheating New Bank of India. It is also alleged that in furtherance of the above said criminal conspiracy accused V.K. Bhutiani abused his position as public servant while posted as Sr. Manager of New Bank of India, LBlock, Connaught Place Branch, New Delhi. As per prosecution, the mastermind of this criminal conspiracy was the accused Neeraj Jain and he is the main beneficiary of the amount disbursed by the Bank by way of loan to M/s. Vikram Enterprises.

166. Thus, as per the case of the CBI, all the accused persons have entered into conspiracy to cheat the New Bank of India and in pursuance of the said criminal conspiracy they have played different roles. The role played by every accused person and allegation against CC No.04/2011 Page 136/217 him/her and the evidence led by the prosecution to prove the same is being discussed separately hereunder : Allegations against accused V.K. Bhutiani

167. As per the prosecution case, accused V.K. Bhutiani was posted as Sr. Manager, LBlock, Connaught Place Branch, New Delhi, at the relevant time in the year 1989. The loan to M/s. Vikram Enterprises was sanctioned on the recommendations of accused V.K. Bhutiani. Account No. 7748 of M/s. Vikram Enterprises was opened on 25.11.1989 after being authorised by accused V.K. Bhutiani. It is alleged that this account was got introduced by Sh. S.K. Bhola on the asking of accused V.K. Bhutiani. Sh. S.K. Bhola did not know accused O.P. Rajwanshi Proprietor of M/s. Vikram Enterprises. As per prosecution case, accused V.K. Bhutiani conducted Pre Sanction Inspection of M/s. Vikram Enterprises on 24.11.1989 and gave a false report. Accused V.K. Bhutiani himself visited the Regional Office and discussed CC No.04/2011 Page 137/217 the loan proposal with the Regional Manager Sh. D.K. Gupta. Thus, the role, as per the prosecution case, of accused V.K. Bhutiani is regarding recommendation of the loan application submitted by accused O.P. Rajwanshi Proprietor of M/s. Vikram Enterprises.

168. PW8 Sh. B.B. Vij has deposed regarding the procedure of advancement of loan and he has also proved various documents. In the present case, the accused O.P. Rajwanshi Proprietor of M/s. Vikram Enterprises has applied for the sanction of Packing Credit Limit and Foreign Bill Purchase Limit. In this regard, he has submitted the loan application in New Bank of India, LBlock, Connaught Place, New Delhi. PW8 Sh. B.B. Vij has deposed that Packing Credit Limit is granted to the exporters to purchase raw material and to convert it into finished goods and thereafter the finished goods are exported to the foreign buyers. He stated that all the necessary requirements which are to be fulfilled are CC No.04/2011 Page 138/217 mentioned in the Loan Instructions Manual of the Bank which are as under: i. Letter of Credit or confirmed order has to be obtained from the borrower.

ii. The borrower has to submit the prescribed loan application.

iii. The borrower has to submit financial statements for the last three years along with details of his assets & liabilities and income tax returns.

iv. The Loan Officer has to scrutinize the loan application and conduct physical inspection/preinspection and then submit the proposal to the Branch Manager for onward recommendation to the sanctioning authority. v. Branch Manager has to give his recommendations wherever the same are required on the loan proposal. vi. Branch Manager and Loan Officer may be the same person and may be different persons.

vii. If the party is enjoying credit facility from any other bank, complete details thereof and a confidential report CC No.04/2011 Page 139/217 on the party is to be obtained from the bank. viii. Credit report of the borrower and guarantor is compiled while submitting loan proposal to the higher authority. It is to be compiled by the designated loan officer and is also to be signed by the Manager. ix. At the time of disbursement of the loan, the borrower is required to indicate the purpose for which the disbursement of money is required by producing relevant documents, e.g. Copy of proforma invoice etc.

169. PW8 Sh. B.B. Vij further deposed that collateral security is not must for all types of advances, but wherever Branch Manager or sanctioning authority feels that collateral security is essential, it must be insisted upon. In order to secure the interests of the bank, the bank can obtain hypothecation of stock, lodgment of LC or confirmed order.

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170. PW8 Sh. B.B. Vij has deposed that the loan application moved by M/s. Vikram Enterprises is Mark PW8/X1 (Ex. PW12/I). Accused V.K. Bhutiani has submitted the loan proposal to the Regional Office and the said loan proposal is Ex. PW10/E.

171. The perusal of the loan proposal Ex. PW10/E shows that there are various columns in the said loan proposal, submitted by accused V.K. Bhutiani.

172. Column 5 of the loan proposal is regarding the nature of business, wherein, the nature of business has been mentioned as "Exporters / Importers of garments, chemicals".

173. Column 7 of Ex. PW10/E is as under: "Number and amount of cheques dishonoured, if any, during the last six months:......................Cheques for Rs............." It has been left blank. Meaning thereby, the CC No.04/2011 Page 141/217 required information has not been supplied.

174. Column 8 of Ex. PW10/E is as under: "Particulars of limits applied for:

a) Nature of Limit PCL FBP Existing Rs. Nil. Nil.

         Present Outstanding             Nil.                   Nil.
         Required Rs.              Rs. 20 Lacs         Rs. 30 Lacs 
          Margin                         25%                    Nil.
          Interest/Commission            7.5%                   8.65%
          Security                     Hyp. of stock        Foreign  Bills 
          Offered (Main)                                drawn under LC

      b)        Any Collateral Security Offered : No.
      i)        If yes, details of collateral security, and its

value : Negative lien of flat in Delhi of M.V. Rs. 1.50 Lacs

c) Any Guarantee offered : Yes. Sh. Neeraj Jain

i) If yes, name(s), annual income and means of guarantors be indicated at 2(b) also.

ii) Amount for which guarantor(s) have already stood guarantees in other account(s) be indicated below : It has been left blank.

d) In case borrower wants collateral security /guarantee to be released reasons: NO CC No.04/2011 Page 142/217

e) Any other conditions governing sanction/ renewal enhancement / modification : NO."

175. Column 12 of Ex. PW10/E is as under: "Borrowing at our other Branches and / or from other Banks and Financial Institutions : NIL." No information has been supplied in this column.

176. Column 13 of Ex. PW10/E is as under: "Names of the Associate/Sister Concerns of the party and credit facilities : None"

177. Column 14 of Ex. PW10/E is as under : "Total Deposit of Party, Members of their family and Associates with the Bank" : No information has been supplied in this column.

178. Column 17 of Ex. PW10/E is as under : "a) Supplementary information for the last three years : N.A."

179. Column 20 of Ex. PW10/E is as under: CC No.04/2011 Page 143/217 "Manager's experience of Borrower's dealing and recommendations : Although our branch is not an foreign exchange branch but our manager Sh. D.B. Madan and Sh. V.K. Bhandari (Accounts) are well experienced and are handling the FBP and PCL limit of M/s. NILCO of Rs. One Crore approx. in a very well manner. Hence we recommend that PCL and FBP Limit for Rs. 50,000,00/ may be sanctioned to M/s. Vikram Enterprises as detailed in our forwarding letter.

S/d (V.K. Bhutiani) MANAGER"

180. Thus, the perusal of Ex. PW 10/E shows that this is a very important and vital document submitted by accused V.K. Bhutiani. The accused V.K. Bhutiani has not provided any information in certain important columns of this document. Column 20 of Ex. PW10/E deals with the information regarding Manager's experience of Borrower's dealing and recommendations. The perusal of the information supplied by accused V.K. Bhutiani in this column shows that the accused V.K. Bhutiani has CC No.04/2011 Page 144/217 supplied irrelevant information in this column and he has not supplied the required information.

181.The Credit Report of firms and companies in respect of borrower i.e. M/s. Vikram Enterprises is Ex. PW10/F. There are many columns in this report.

182. Column 8 of Ex. PW10/F is as under: "Brief report obtained on the party and their associates indicating sources : Market Papers submitted by the party."

183. Column 9 of Ex.PW10/F is as under: "Previous Bankers and information relating to accounts maintained with them" : It has been left blank and no information has been supplied.

184. Column D of PartII of Ex. PW10/F is as under: "Comments on credit facilities already being enjoyed by the party and its associates etc. from N.B.I. and other banks together with comments on past dealings with the Bank" : It has been left blank and no information has been supplied.

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185. Thus, the perusal of Ex. PW10/F shows that the accused V.K. Bhutiani has also not supplied certain important informations as required in Ex. PW10/F.

186.The borrower in this case was accused O.P. Rajwanshi who was the Proprietor of M/s. Vikram Enterprises. The Credit Report on Individuals/Proprietory Concerns is Ex. PW10/G.

187. Column 4 of Ex. PW10/G is as under: "Annual Income for the last financial year (19881989) : Rs. 31422/ Source". Herein, source has not been mentioned. Only the financial year and the amount has been mentioned by accused V.K.Bhutiani.

188. Column 5 of Ex. PW10/G is as under: "Experience in business & past dealing with the Bank :

New A/c". Regarding experience in business nothing has been mentioned and no information in this regard has been supplied.

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189. Column 7 of Ex. PW10/G is as under: "Brief report obtained on the party indicating sources from which obtained : Papers submitted by the party. Market". Herein, the report has not been mentioned, only the source is mentioned by accused V.K. Bhutiani and he has not supplied the information as required.

190. Column 8 of Ex. PW10/G is as under: "Previous Bankers and type of accounts maintained and present position" : It has been left blank and no information has been supplied.

191. Column 9 of Ex. PW10/G is as under: "Nature and extent of the credit facilities already being enjoyed by the party and allied concerns with different offices of the Bank and at other banks". It has been left blank and no information has been supplied.

192. Column 4 of Details of Assets of Ex. PW10/G is as under: "Life Insurance Policies" : It has been left blank and no information has been supplied.

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193. Column 5 of Details of Assets of Ex. PW10/G is regarding the Immovable Property which has also been left blank. The accused V.K. Bhutiani has not supplied the required information.

194. Column 6 of Details of Assets of Ex. PW10/G is regarding other Assets, wherein, only Jewelery is mentioned. But, the details of the said jewelery is not mentioned.

195. Thus, the perusal of Ex. PW10/G shows that the accused V.K. Bhutiani has also not supplied certain important informations as required in Ex. PW10/G.

196. The Credit Report on Individuals/Proprietory Concerns of Neeraj Jain is Ex. PW10/H.

197. Column 4 of Ex. PW10/H is as under: CC No.04/2011 Page 148/217 "Annual Income for the last financial year (19.....19....) Source" : Rs. 30,000/. In this column the annual income for the last financial year is only mentioned. Year and the Source has been left blank.

198. Column 5 of Ex. PW10/H is as under: "Experience in business & past dealing with the Bank" : It has been left blank and no information has been supplied.

199. Column 7 of Ex. PW10/H is as under: "Brief report obtained on the party indicating sources from which obtained" : Papers submitted by the party. Market". Herein, no report has been mentioned, only the source is mentioned by accused V.K. Bhutiani.

200. Column 8 of Ex. PW10/H is as under: "Previous Bankers and type of accounts maintained and present position" : It has been left blank and no information has been supplied.

201. Column 9 of Ex. PW10/H is as under: CC No.04/2011 Page 149/217 "Nature and extent of the credit facilities already being enjoyed by the party and allied concerns with different offices of the Bank and at other banks". It has been left blank and no information has been supplied.

202. The columns of details of liabilities of Ex. PW10/H are left blank. No information has been supplied in this regard.

203. Thus, the perusal of Ex. PW10/H shows that the accused V.K. Bhutiani has also not supplied certain important informations as required in Ex. PW10/H.

204. The letter forwarded by accused V.K. Bhutiani to the Regional Manager with respect to the loan proposal of M/s. Vikram Enterprises is Ex. PW10/D. The subject of this letter reads as under: "Reg. Loan proposal M/s. Vikram Enterprises The subject firm is a proprietorship concern with Sh. O.P. Rajvanshi as proprietor. The firm was started on 22189 CC No.04/2011 Page 150/217 to deal as exports/imports and commission agents. Up till now the firm has been doing job on commission basis. Now the party has procured an order of Rs. 30.00 Lacs approx for supply of garments to Hongkong under L/C. The party shall get the garments to be exported manufactured on job basis."

205. Thus, it is clear that accused V.K. Bhutiani has recommended the loan proposal of M/s. Vikram Enterprises on the basis of Letter of Credit. This proposal was made by accused V.K. Bhutiani on 25.11.1989, whereas, the Letter of Credit was received by Standard Chartered Bank on 23.12.1989 from China State Bank Ltd. Hongkong, by cable.

206. The prosecution has examined Sh. K.K. Nayyar as PW16. He has proved the forwarding letter Ex. PW16/A vide which the Letter of Credit issued by China State Bank Limited, Hongkong to Standard Chartered Bank, CC No.04/2011 Page 151/217 New Delhi, was forwarded to M/s. Vikram Enterprises. The Letter of Credit is Ex. PW16/B.

207.Perusal of Letter of Credit Ex. PW16/B shows that from China it was received through a telegram on 23.12.1989 at 08.32 minutes. However, perusal of Ex. PW16/A reveals that it is dated 22.12.1989. Meaning thereby, it has been forwarded on 22.12.1989. But, how can Ex. PW16/A be forwarded on 22.12.1989, if Letter of Credit Ex. PW16/B was received on 23.12.1989. More importantly, how can accused V.K. Bhutiani had sent the recommendations with respect to the loan proposal of M/s. Vikram Enterprises to the Regional Manager vide Ex. PW10/D on 25.11.1989, when at that time, Letter of Credit never existed. Therefore, it is very much clear that Letter of Credit was not in existence when accused V.K. Bhutiani made recommendation for loan on 25.11.1989.

208. It was further alleged that accused V.K. Bhutiani had CC No.04/2011 Page 152/217 allowed the party to avail the limits without obtaining the Credit Report from the existing bankers of M/s. Vikram Enterprises. The Credit Report of Allahabad Bank in respect of M/s. Vikram Enterprises was received in New Bank of India, LBlock, Connaught Place, New Delhi on 01.01.1990, whereas, the major portion of limits had been availed by the party by 28.12.1989. This is also done by accused V.K. Bhutiani in violation of the Rules and Instructions of the Bank.

209. The prosecution has also alleged that the PreSanction Inspection report given by accused V.K. Bhutiani is false. Before sending the loan proposal to the Regional Office, accused V.K. Bhutiani had conducted a PreSanction Inspection on 24.11.1989 and in this regard his Report is Ex. PW10/C. As per this report, he had visited the premises of M/s. Vikram Enterprises at 31, Ring Road, Lajpat Nagar, Delhi at 3.00 p.m. on 24.11.1989. His comments in the said report in Column 5 of Ex. PW10/C CC No.04/2011 Page 153/217 reads as under:

"Report on verification of physical aspects of the loan application Particulars of securities/ Observation/comments Assets inspected. of the Inspecting Officer(s).

Capital, Fixed Assets Satisfactory"

210. PW8 Sh. B.B. Vij has stated that during PreInspection all important aspects related to the proposal i.e. land, building, stock, machinery and collateral security have to be seen and verified while submitting PreInspection Report. But, the accused V.K. Bhutiani has not mentioned the same in his report Ex. PW10/C. Therefore, accused V.K. Bhutiani has not conducted the Presanction Inspection as per Rules or procedure.

211. PW8 Sh. B.B. Vij has deposed regarding the procedure of advancement of the loan, its disbursement and supervision of advances made by the Bank. But, in his crossexamination, the procedure so deposed by PW8 Sh. B.B. Vij has not been challenged. Meaning thereby, CC No.04/2011 Page 154/217 the procedure as deposed by PW8 Sh. B.B. Vij, is admitted to be correct by the accused V.K. Bhutiani. Reliance in this regard can be placed upon the judgment of Hon'ble Delhi High Court which is reported as State Vs. Mohd. Afzal & Ors. 2003VII AD(Delhi)1, wherein, it was held that when a witness is not cross examined on any relevant aspect, the correctness of the statement made by the witness cannot be disputed. The accused V.K. Bhutiani has also not put forward any other Rules and norms etc. on the basis of which he had made recommendation of the loan proposal of M/s. Vikram Enterprises.

212. Now, the question is that whether accused V.K. Bhutiani has followed the procedure for recommending the loan proposal of M/s. Vikram Enterprises.

213. From the above discussion it is proved that the accused V.K. Bhutiani has not followed the due procedure for CC No.04/2011 Page 155/217 recommending the loan proposal of M/s. Vikram Enterprises and he has also not supplied certain important informations which were required to be supplied while making recommendations of the loan proposal of M/s. Vikram Enterprises.

214. PW28 Sh. D.K. Gupta was Regional Manager of New Bank of India at the relevant time. He has proved Ex. PW28/DX2 which is the instructions regarding grant of Packing Credit or Preshipment Advance. These instructions were issued by the Foreign Exchange Department of Head Office of New Bank of India. The said instructions were issued and circulated to the all the Branches, Regional Offices, Area Offices, Training College & Departments at the Head Office.

215. The relevant part of instructions contained in Ex. PW28/DX2 are reproduced herein below: " EXPORT CREDIT - PRESHIPMENT ADVANCES CC No.04/2011 Page 156/217 In response to the need for consolidation of instructions regarding grant of Packing Credit or Preshipment Advances, we summarise below various aspects of packing credit advances and the requirements of Reserve Bank of India and Export Credit Guarantee Corporation of India Limited etc. in relation thereto. Sanction of Limits/Advances :

An application for sanction of a Packing Credit Limit should be obtained from the exporter on prescribed loan application form (L43) along with Annexure 'B'. The application should be accompanied by necessary papers viz. Balance Sheets for last three years; Incometax and wealth tax assessment order/certificates for last three years and the letters of credit/orders in hand. Projected balancesheet for the ensuing year may also be called for.

Securities :

i. ) Preshipment advances should be normally granted against the lodgment of confirmed orders/contracts or irrevocable letters of credit in original.

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ii. ) Guarantee of Export Credit Guarantee Corporation of India Ltd. (ECGC) is must for covering the advances for which our bank holds the Wholeturnover Packing Credit Guarantee of ECGC Ltd., covering all preshipment advances to single exporter upto a specified limit (at present Rs. 15 Lacs). When the limit is beyond this amount, specific prior approval should be obtained from the Corporation to keep the advances guaranteed by them.

Documents to be Obtained (A)

(b)

(c) Entries to be passed Period of Advance and Classification of Goods Precautions to be taken/procedure to be followed after sanction of Limit/Release of Advance :

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i)

ii) Before granting an advance branch should satisfy itself about the reputation and standing of the foreign banks which have opened the letters of credit.

iii) If exports are not covered by irrevocable letters of credit or when the advance is to be granted against preliminary information like cable, telex etc., the status report on buyer should be enquired without fail. (This condition may, however, be waived where the buyer's limit has been approved by ECGC). It should be ensured that the report is satisfactory.

iv)

v)

vi) It should be ensured that the loan sanctioned is not disbursed in lumpsum. The advance should be disbursed in a phased manner as per the genuine requirements of the party form time to time. As far as possible, submission of proforma invoice for the purchase of goods should be insisted upon and the price stated therein should be compared with the price in the local market.

vii)

viii)

ix)

x) It should be ensured that the relative rawmaterial, goods in process, finished goods etc., are fully insured against all risks with bank clause duly incorporated.

xi) Goods purchased with Bank's finance must remain CC No.04/2011 Page 159/217 charged to the bank either by way of hypothecation or pledge as per terms of sanction.

xi)

xii) A separate account should be opened for each and every Packing Credit as well as for advances at post shipment stage i.e. the finance should not be made available to the borrower on a running account basis except in cases where general/specific approval has been given by Reserve Bank of India.

xiii)

xiv) "

216. It is not disputed that the said Guidelines or Instructions were not in force at the time when M/s. Vikram Enterprises had applied for loan and at the time when the loan amount released to it after the sanction of the loan.

217. The perusal of the Guidelines contained in Ex. PW28/DX2 shows that it was mandatory that loan application should be accompanied by Letter of Credit/Order in hand. In the present case, the Letter of CC No.04/2011 Page 160/217 Credit was not in existence at the time when the loan application was submitted by the accused O.P. Rajwanshi Proprietor of M/s. Vikram Enterprises. This has been discussed above in detail. Neither the Letter of Credit nor any order in hand was submitted along with the loan application. Even then, the loan application was taken and recommended for sanction of the loan by ignoring the Guidelines and Instructions. Further, as per the Instructions contained in Ex. PW28/DX2, the pre shipment advances should be normally granted against the lodgment of confirmed order/contracts or irrevocable Letter of Credit in original. In this case the advances were released by accused V.K. Bhutiani without the lodgment of confirmed order/contracts and also in the absence of irrevocable Letters of Credit in original. It is important to mention here that the original Letter of Credit has not been produced, only the Letter of Credit (Ex. PW16/B) received by way of telex has been filed on record. At the time of disbursement of the loan, instruction CC No.04/2011 Page 161/217 II (Securities) of the Ex. PW28/DX2 has also been ignored.

218. The accused V.K. Bhutiani has also ignored the instruction contained in Ex. PW28/DX2 that before granting an advance, Branch should satisfy itself about the reputation and standing of the Foreign Banks which have opened the Letter of Credit. The accused V.K. Bhutiani has not done so and thus, has violated the instructions.

219. As per clause (iii) of Precautions to be taken/procedure to be followed after sanction of Limit/release of Advance as contained in Ex. PW28/DX2, the status report of buyer should be enquired without fail. But, in the present case status report of the foreign bank was not verified by accused V.K. Bhutiani. Thus, he has violated the instructions contained in Ex. PW28/DX2. CC No.04/2011 Page 162/217

220. Also, the proforma invoice for the goods to be purchased was not insisted upon by the accused V.K. Bhutiani at the time of disbursement of the loan amount. Nor he has verified the price of the goods in the local market. Thus, he has violated the instructions contained in clause (vi) of Precautions to be taken/procedure to be followed after sanction of Limit/release of Advance as contained in Ex. PW28/DX2.

221. The accused V.K. Bhutiani has also violated the instructions contained in clause (x) and (xii) of Precautions to be taken/procedure to be followed after sanction of Limit/release of Advance as contained in Ex. PW28/DX2.

222. Thus, from the above discussion, it is proved that accused V.K. Bhutiani has violated the important Rules while making recommendations of the loan proposal of M/s. Vikram Enterprises. He has also withheld the CC No.04/2011 Page 163/217 important informations which were required to be given at the time of making recommendation of the loan proposal. It is further proved that the accused V.K. Bhutiani has violated the important Guidelines and Instructions contained in Ex. PW28/DX2 at the time of disbursement of the loan amount to accused O.P. Rajwanshi Proprietor of M/s. Vikram Enterprises. It is also proved that accused V.K. Bhutiani asked Sh. S.K. Bhola to introduce the account of M/s. Vikram Enterprises despite the fact that Sh. S.K. Bhola did not know accused O.P. Rajwanshi Proprietor of M/s. Vikram Enterprises and Sh. S.K. Bhola has introduced the account of M/s. Vikram Enterprises only on the asking of accused V.K. Bhutiani.

223. From the evidence led by the prosecution, it is proved that everything was done by accused V.K. Bhutiani in a hurried manner and in violation of the Rules and procedures of the Bank. The loan application was moved on 20.11.1989, the presanction Inspection was CC No.04/2011 Page 164/217 conducted on 24.11.1989. On 25.11.1989, he himself went to the Regional Office and got the loan sanctioned in favour of M/s. Vikram Enterprises. It is proved that undue importance and weightage was given by accused V.K. Bhutiani in this case by ensuring that the loan was sanctioned and disbursed in violation of the Rules and instructions of the Bank. Everything was done hurriedly and in violation of the Rules and norms of the Bank. All the said facts and circumstances prove that accused V.K. Bhutiani has misused his power and he has abused his position as a public servant and obtained pecuniary advantage for accused O.P. Rajwanshi Prop. of M/s. Vikram Enterprises by disbursement of the loan in violation of the Rules of the Bank and this loan was not repaid by M/s. Vikram Enterprises to the Bank. Therefore, it is proved that the accused V.K. Bhutiani has committed the offence of criminal misconduct as defined in Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988. However, the prosecution has failed to lead any direct CC No.04/2011 Page 165/217 evidence against the accused V.K. Bhutiani in support of the charge of conspiracy against him.

224. The contention of the Ld. Counsel for accused V.K. Bhutiani that some documents and incriminating evidence have not been put to the accused in his statement u/s 313 Cr.P.C., is without any merit. The perusal of the statement u/s 313 Cr.P.C. of accused V.K. Bhutiani shows that every incriminating evidence and document has been put to him in his statement u/s 313 Cr.P.C. Allegations against accused O.P. Rajwanshi

225. In pursuance of criminal conspiracy, he formed proprietorship concern under the name and style of M/s. Vikram Enterprises. He being the Proprietor of M/s. Vikram Enterprises applied for loan for exporting garments. His case was that the raw material would be supplied by M/s. Haji Guddar S. Abdul Karim and M/s. Multiple Traders. The accused Neeraj Jain stood CC No.04/2011 Page 166/217 guarantor for M/s. Vikram Enterprises. The case against him is that he did not purchase any raw material from M/s. Haji Guddar S. Abdul Karim or M/s. Multiple Traders and availed the loan sanctioned by New Bank of India.

226. The Letter of Credit received from China was received by O.P. Rajwanshi. It was alleged that he got released the loan amount of Rs. 16.80 Lacs in the name of M/s. Vikram Enterprises by way of pay orders dated 28.12.1989 and 26.12.1989 for Rs. 12.65 Lacs and Rs. 2.25 Lacs, in favour of M/s. Haji Guddar S. Abdul Karim and one pay order dated 26.12.1989 for Rs. 2.30 Lacs in favour of M/s. Multiple Traders.

227. It is also the case of the prosecution that accused O.P. Rajwanshi forged one receipt for Rs. 4.35 Lacs in favour of M/s. Vikram Enterprises, purported to have been issued by M/s. Haji Guddar S. Abdul Karim. It is further alleged that accused O.P. Rajwanshi has also forged the CC No.04/2011 Page 167/217 covering letter dated 17.12.1989, by signing as Mohd. Yusuf. The said letter was purportedly written by Mohd. Yusuf Proprietor of M/s. Haji Guddar S. Abdul Karim to M/s. Vikram Enterprises.

228. The prosecution has failed to lead any direct evidence against the accused O.P. Rajwanshi in support of the charge of conspiracy against him.

229. However, accused O.P. Rajwanshi expired during the course of trial. The proceedings against accused O.P. Rajwanshi were dropped on 27.08.2007.

Allegations against accused S. Mohd. Yusuf

230. The case of the prosecution is that M/s. Haji Guddar S. Abdul Karim of which accused S. Mohd. Yusuf was the Proprietor, has never existed and was a fictitious firm. The account for M/s. Haji Guddar S. Abdul Karim was got opened in Central Bank of India, Naya Bazar, New Delhi CC No.04/2011 Page 168/217 Branch, under the criminal conspiracy hatched by the accused persons.

231. As per prosecution, agreement dated 30.11.1989 was entered into between accused O.P. Rajwanshi, Proprietor of M/s. Vikram Enterprises and S. Mohd. Yusuf, Proprietor of M/s. Haji Guddar S. Abdul Karim for supply of silk garments to M/s. Vikram Enterprises. This was a sham agreement and was never acted upon. This agreement was entered into only to cheat and defraud New Bank of India. M/s. Haji Guddar S. Abdul Karim was a bogus firm and S. Mohd. Yusuf Proprietor of said firm was not running any firm, but in fact, he was a vegetable vendor in Meerut.

232. It is the case of the prosecution that the amount of Rs. 12.65 Lacs and Rs. 2.25 Lacs received in the account of M/s. Haji Guddar S. Abdul Karim through pay orders issued by New Bank of India, was ultimately given to CC No.04/2011 Page 169/217 accused Neeraj Jain by accused S. Mohd. Yusuf.

233. Charge could not be framed against accused S. Mohd. Yusuf as he had expired before the framing of the Charge. The proceedings against him were dropped on 12.09.1994. However, the prosecution has failed to lead any direct evidence against the accused S. Mohd. Yusuf in support of the charge of conspiracy against him. Allegations against accused Rashmi Agarwal

234. Accused Rashmi Agarwal is the Proprietor of M/s. Multiple Traders and has allegedly supplied 1000 silk sarees to M/s. Vikram Enterprises for export.

235. As per prosecution case, under the criminal conspiracy hatched by the accused persons, accused Rashmi Agarwal got her account opened in the State Bank of Travancore, R.K. Puram Branch, New Delhi. The perusal of the documents reveals that the account of M/s. Multiple CC No.04/2011 Page 170/217 th Traders was opened on 7 November,1988 in the State Bank of Travancore, R.K. Puram Branch, New Delhi. The prosecution has alleged that the criminal conspiracy was hatched by the accused persons in NovemberDecember 1989, i.e. much after the opening of the account of M/s. Multiple Traders by accused Rashmi Agarwal. Therefore, it is clear that the accused Rashmi Agarwal has opened her bank account prior to the period in which the conspiracy was allegedly hatched. The prosecution has not led any evidence that at the time of opening the Bank Account, the accused Rashmi Agarwal had ever met the other accused persons, except accused Praveen Agarwal who is her husband. There is no evidence on record to prove that there was meeting of minds of the accused persons at the time of opening the Bank Account by accused Rashmi Agarwal.

236. As per prosecution, M/s. Multiple Traders does not exist and is a bogus firm and it has no address from CC No.04/2011 Page 171/217 where it was functioning. No evidence has been led by the prosecution in this regard to substantiate this allegation. Moreover, this is not the case of the prosecution as per chargesheet. The Investigating Officer has not collected any evidence regarding the non existence of M/s. Multiple Traders. This allegation has been raised only during the course of arguments by the Ld. P.P. for CBI. The Investigation Officer has admitted in his crossexamination that he has not visited the premises of M/s. Multiple Traders. Therefore, it is clear that Investigating Officer did not try to ascertain that M/s. Multiple Traders is functioning at the given address or not.

237. PW14 Sh. Ashwani Kumar Mudgal has deposed that he was employed with M/s. Agarwal Jaitley & Co. M/s. Multiple Traders was owned by the accused Rashmi Agarwal who is wife of Praveen Agarwal. This witness has deposed that while he was employed with M/s. Agarwal Jaitley & Co., he also used to look after the work CC No.04/2011 Page 172/217 of accounting and banking of M/s. Multiple Traders. Meaning thereby, the witness of prosecution has deposed that M/s. Multiple Traders was in existence. On this point, he was not reexamined by the Ld. P.P. for the CBI. Hence, from the testimony of PW14 M/s. Multiple Traders, it is proved that M/s. Multiple Traders was in existence and was not a bogus firm.

238. As per prosecution, M/s. Multiple Traders did not supply 1000 Silk Sarees to M/s. Vikram Enterprises. It was argued that there is no proof of delivery of silk sarees by M/s. Multiple Traders to M/s. Vikram Enterprises. Admittedly, during the investigation, a delivery receipt Ex. PW12/D5X1 showing supply of 1000 silk sarees by M/s. Multiple Traders to M/s. Vikram Enterprises was seized by the Investigating Officer. But, the Investigation Officer did not rely upon the said receipt, nor he conducted any investigation on this point. He did not try to ascertain whether this delivery receipt was genuine or bogus, for CC No.04/2011 Page 173/217 the reasons best known to him. As this delivery receipt was seized during investigation, so it was the duty of the Investigating Officer to conduct investigation regarding the genuineness of this receipt. Ex. PW12/D5X1 bears the signatures of accused O.P. Rajwanshi at point A. The Investigating Officer did not verify the signatures of accused O.P. Rajwanshi on Ex.PW12/D5X1 nor he sent the said document to GEQD. Investigating Officer has not conducted investigation on this point. Nor the Investigating Officer has filed the said delivery receipt along with the chargesheet. The explanation given by the Investigating Officer is that he did not rely upon this receipt as the same was not genuine. If, as per Investigating Officer Ex. PW12/D5X1 was a bogus receipt, he should have interrogated accused O.P. Rajwanshi and accused Rashmi Agarwal on this point. They were available during the period of investigation. Investigating Officer should have joined the accused O.P. Rajwanshi in investigation or recovery/seizure of silk CC No.04/2011 Page 174/217 sarees. Investigating Officer could have also joined accused Rashmi Agarwal in investigation to find out from where she had purchased the 1000 silk sarees for supplying the same to M/s. Vikram Enterprises. But, this was not done by the Investigating Officer. The Investigating Officer could not explain as to how he came to the conclusion that this receipt was not genuine. The Ld. Counsel for the accused has placed reliance upon a judgment of Hon'ble Supreme Court which is reported as AIR 1987 Supreme Court 856, wherein, it was held that where the defence is founded on a relevant and vital document seized from the custody of the accused and not deliberately produced, conviction cannot be sustained. It was also held that it was the duty of the prosecution to produce the said document. Reliance was also placed upon a judgment of Hon'ble Delhi High Court which is reported as 139 (2007) Delhi Law Times 178, wherein, it was held that it is not duty of the Investigating Officer to strengthen the case of prosecution by withholding CC No.04/2011 Page 175/217 evidence collected by him and accused can insist upon the Court to consider evidence collected by Investigating Officer, but not made part of the chargesheet. Therefore, in view of the law laid down by the Hon'ble Supreme Court and the Hon'ble Delhi High Court, the delivery receipt Ex. PW12/D5X1 has to be considered and relied upon.

239. Also, PW12 Sh. Kamal Kishan Jaitely has proved the delivery receipt Ex. PW12/D5X1 in his cross examination. He has stated that M/s. Multiple Traders was dealing in garments. He deposed that original of this document (Ex. PW12/D5X1) was seized by the CBI in his presence and the number "22" appearing at the document is in his handwriting. He had put this number on this document as he was asked by the CBI Officers to assist him for putting number on the said document. This witness was crossexamined by the Ld. P.P. for CBI after his crossexamination by the defence counsel. It is CC No.04/2011 Page 176/217 important to note that during his crossexamination by the Ld. P.P. for CBI, this witness was not crossexamined on the point of genuineness of receipt Ex. PW12/D5X1. Therefore, the testimony of this witness regarding the seizure of Ex. PW12/D5X1 remains uncontroverted and therefore, has to be believed in view of the law laid down by the Hon'ble Delhi High Court in the case of State Vs. Mohd. Afzal & Ors. 2003VII AD(Delhi)1 (Supra). Hence, it is proved that accused Rashmi Agarwal Proprietor of M/s. Multiple Traders has supplied 1000 silk sarees to M/s. Vikram Enterprises.

240. It was alleged that without supplying any material/goods to M/s. Vikram Enterprises, a pay order of Rs. 2.30 Lacs was issued in favour of M/s. Multiple Traders by New Bank of India. As discussed above, it is proved that accused Rashmi Agarwal Proprietor of M/s. Multiple Traders has supplied 1000 silk sarees to M/s. Vikram Enterprises vide delivery receipt Ex. PW12/D5X1. The CC No.04/2011 Page 177/217 pay order of Rs. 2.30 Lacs was issued in favour of M/s. Multiple Traders by the New Bank of India, LBlock Connaught Place Branch, New Delhi, on the request of accused O.P. Rajwanshi Proprietor of M/s. Vikram Enterprises. The accused Rashmi Agarwal did not approach or wrote to the New Bank of India, LBlock Connaught Place Branch, New Delhi, for making payment to her. The letter Ex. PW30/DX4 also confirms the supply of 1000 silk sarees from Multiple Traders.

241. PW12 Sh. Kamal Kishan Jaitley has also stated that Ex. PW12/D5X2 is the Balance Sheet of M/s. Multiple Traders ending on 31.03.1990. This document was seized by CBI from the office of PW12 Sh. Kamal Kishan Jaitley in his presence. PW12 Sh. Kamal Kishan Jaitley had put serial no. '3' on the right hand top of this document at point X1, on the asking of CBI Officers at the time of seizure of this document. This witness has proved the Profit & Loss Account of M/s. Multiple Traders for the CC No.04/2011 Page 178/217 year ending on 31.03.1990 which is Ex. PW12/D5X3. This document was also seized by CBI from the office of PW12 Sh. Kamal Kishan Jaitley in his presence. PW12 Sh. Kamal Kishan Jaitley had put serial no. '4' on the right hand top of this document at point X1, on the asking of CBI Officers at the time of seizure of this document. Document Ex. PW12/D5X4 is Income & Expenses Details of M/s. Multiple Traders for the year ending 31.03.1990. This document was also seized by CBI from the office of PW12 Sh. Kamal Kishan Jaitley in his presence and he had put serial no. '7' on the right hand top of this document at point X1, on the asking of CBI Officers at the time of seizure of this document. This document also shows the entry of Rs. One Lac at point X2 as Income. PW12 Sh. Kamal Kishan Jaitley has stated that this amount of Rs. One Lac was received by M/s. Multiple Traders from M/s. Vikram Enterprises. Ex. PW12/D5X5 to PW12/D5X18 are the Income Tax Returns, Statements of Assessable Income, Balance CC No.04/2011 Page 179/217 sheets and Profit and Loss Account Statements for the years 198990, 199091 and 199192, respectively, of M/s. Multiple Traders. The said documents were seized by the CBI and were not produced in the Court by the CBI. The said documents were proved by PW12 Sh. Kamal Kishan Jaitley as the said documents were seized from him and he was in custody of the said document being the Chartered Accountant of M/s. Multiple Traders. The said documents are to be considered and relied upon in view of the law laid down in AIR 1987 Supreme Court 856 and 139 (2007) Delhi Law Times 178 (Supra).

242. Therefore, in view of the above discussion, I am of the considered opinion that prosecution has failed to prove that M/s. Multiple Traders was a nonexisting firm. It has also failed to prove that M/s. Multiple Traders did not supply 1000 silk sarees to M/s. Vikram Enterprises. It has also failed to prove that the account of M/s. Multiple Traders was opened in State Bank of Travancore, R.K. CC No.04/2011 Page 180/217 Puram Branch, New Delhi, in pursuance of the criminal conspiracy allegedly hatched by the accused persons. The prosecution has failed to lead any direct evidence against the accused Rashmi Agarwal in support of the charge of conspiracy against her.

Allegations against accused Praveen Agarwal

243. It is alleged that the loan application submitted by accused O.P. Rajwanshi Proprietor of M/s. Vikram Enterprises in the Bank and the accompanying documents were filled in by accused Praveen Agarwal. The prosecution has failed to lead any evidence to substantiate this charge/allegation against accused Praveen Agarwal. The specimen handwriting of the accused Praveen Agarwal were sent to GEQD for comparison. However, the specimen handwriting of accused Praveen Agarwal did not match with his questioned handwriting. The Investigating Officer PW30 Sh. Satish Dagar in his crossexamination has admitted CC No.04/2011 Page 181/217 that handwriting of accused Praveen Agarwal did not match the handwriting on the loan application, as per the report of GEQD.

244. As per prosecution case, accused Praveen Agarwal has purchased a DDA Flat at Jhilmil Colony, Delhi, from Mrs. Madhu Anand in July 89 for a consideration of Rs. 62000/. But, the said flat was not transferred in the name of Praveen Agarwal. Later on, at the time of applying the loan in New Bank of India, the said flat was got transferred in the name of accused Neeraj Jain by accused Praveen Agarwal. Accused Neeraj Jain offered the said flat as security in the bank. It was alleged that in order to adjust the payment of the said flat, accused Praveen Agarwal prepared a bogus invoice No. 3/89 (Ex.PW31/7) dated 15.12.1989 in the name of M/s. Multiple Traders.

245. The prosecution has not led any evidence to prove that CC No.04/2011 Page 182/217 accused Praveen Agarwal had purchased a flat bearing No. 148C, 2nd Floor, LIG, DDA Flat, TypeII/A, Jhilmil Colony, Delhi, from Ms. Madhu Anand or that the said flat was transferred in the name of accused Neeraj Jain by accused Praveen Agarwal, at the time of obtaining the loan from New Bank of India, LBlock Connaught Place Branch, New Delhi. The prosecution has not filed any document such as agreement to sell, GPA, Will, Receipt etc. to prove the sale of the said flat by Ms. Madhu Anand to accused Praveen Agarwal, nor it has examined Ms. Madhu Anand who was the best witness to prove the said allegation. Hence, the prosecution has failed to prove this allegation against accused Praveen Agarwal.

246. As per prosecution, accused Praveen Agarwal also prepared bogus receipt Ex. PW31/8 on behalf of M/s. Multiple Traders for having received Rs. One Lac in cash against the supply of silk sarees to M/s. Vikram Enterprises. It was alleged that accused Praveen CC No.04/2011 Page 183/217 Agarwal forged the said invoice Ex. PW31/7 and receipt Ex. PW31/8 by signing the same as Ashwani Kumar. Prosecution has examined Ashwani Kumar Mudgal as PW14, who has deposed that bill of Rs. 2.30 Lacs (Ex. PW31/7) and receipt of Rs. One Lac (Ex. PW31/8) do not bear his signatures. Meaning thereby, signatures on invoice 3/89 (Ex. PW31/7) and on Ex. PW31/8 i.e. the receipt of Rs. One Lac were forged by accused Praveen Agarwal as Ashwani Kumar. The prosecution case is that on the basis of these forged documents i.e Ex. PW31/7 and Ex. PW31/8, an amount of Rs. 2.30 Lacs was released to M/s. Multiple Traders.

247. PW31 is Sh. Naresh Chandra Sood GEQD. He is a handwriting expert. He has examined the specimen signatures of accused Praveen Agarwal as signatures of Ashwani Kumar with the questioned signatures. He has stated that the signatures on Ex. PW31/7 and Ex. PW31/8 matched with the specimen signatures of CC No.04/2011 Page 184/217 accused Praveen Agarwal as Ashwani Kumar.

248. Also, PW14 Sh. Ashwani Kumar Mudgal has stated that Ex.PW31/7 and Ex. PW31/8 do not bear his signatures. The handwriting expert PW31 Sh. Naresh Chandra Sood has stated that the questioned signatures of accused Praveen Agarwal as Ashwani Kumar matched with the specimen signatures of accused Praveen Agarwal as Ashwani Kumar. The said forged signatures of Ashwani Kumar are on the letter heads of M/s. Multiple Traders. Accused Rashmi Agarwal is Proprietor of M/s. Multiple Traders. It is not the case of the accused Rashmi Agarwal that her letter heads were stolen or misused by someone. Admittedly, Ex. PW31/7 and Ex. PW31/8 were recovered from the Bank. Accused Rashmi Agarwal did not make any complaint in the Bank or in any other Forum to the effect that the letter heads upon which Ex. PW31/7 and Ex. PW31/8 were misused or fabricated by someone. The accused Praveen Agarwal has not given CC No.04/2011 Page 185/217 any explanation as to how he put his signatures on Ex. PW31/7 and Ex. PW31/8. In his statement u/s 313 Cr.P.C. the accused Praveen Agarwal has not given any explanation in this regard. He has simply denied the evidence in this regard by stating 'It is incorrect.' Neither the accused Praveen Agarwal examined himself as a witness to rebut the evidence led by the prosecution. Nor he examined any expert witness to discredit the testimony of PW31 Sh. Naresh Chandra Sood. Therefore, under these circumstances, it is proved that accused Praveen Agarwal has forged the signatures of Ashwani Kumar on Ex. PW31/7 and Ex. PW31/8.

249. The contention of the Ld. Counsel for the accused Praveen Agarwal was that the Ex. PW31/7 and Ex. PW31/8 were not available in the bank at the time of disbursement of the loan to M/s. Vikram Enterprises. Reliance in this regard was placed upon Ex. PW10/J which is a letter written by the Bank on 10.02.1990 to M/s. CC No.04/2011 Page 186/217 Vikram Enterprises. Vide this letter, the Bank has asked M/s. Vikram Enterprises to send the original bills in respect of purchases made. It was urged that as on 10.02.1990, the original bills were not with the Bank, so how the same could be used at the time of disbursement of the loan to M/s. Vikram Enterprises in the month of December, 1989. The letter Ex. PW10/J has been proved by the prosecution. The contents of this letter clearly show that vide this letter the Bank has requested M/s. Vikram Enterprises to submit the original bills in respect of the purchases made by it. Hence, it is clear that the original bills were not available in the Bank at the time of disbursement of the loan to M/s. Vikram Enterprises. Meaning thereby, Ex. PW31/7 and Ex. PW31/8 were not used at the time of disbursement of the loan.

250. The other contention raised by the Ld. Counsel for accused Praveen Agarwal is that Ex. PW31/7 and Ex. CC No.04/2011 Page 187/217 PW31/8 have not been proved in accordance with law. The issue raised by the Ld. Counsel was that the contents of the said documents have not been proved as the prosecution has failed to lead evidence as to who is the author of Ex. PW31/7 and Ex. PW31/8. The case of the prosecution is that both Ex. PW31/7 and Ex. PW31/8 have been forged by accused Praveen Agarwal. Ex. PW31/7 and Ex. PW31/8 are typewritten. It is well known fact that anything typed with typewriter cannot be compared or examined by any expert, nor any expert can tell who has typed a particular letter. It has been noted above that accused Praveen Agarwal has forged the signatures of Ashwani Kumar on Ex. PW31/7 and Ex. PW31/8. The accused Praveen Agarwal has not explained any circumstances under which he had signed these documents. The accused Praveen Agarwal is stated to be a Chartered Accountant by profession and therefore, he is not supposed to put his signature on a blank paper. Therefore, in my opinion, he must have CC No.04/2011 Page 188/217 signed Ex. PW31/7 and Ex. PW31/8 after the same were typed and prepared. In this regard, he has not given any explanation in his statement u/s 313 Cr.P.C.

251. It was also agitated by the Ld. Counsel for accused Praveen Agarwal that Ex. PW31/7 and Ex. PW31/8 do not fall in the category of false document and therefore no forgery has been committed by accused Praveen Agarwal.

252. The Hon'ble Supreme Court of India in a case reported as AIR 2011 SC 1713 has held as under:

18. "Similarly, the definition of "forgery" in Section 463, IPC is very wide. The basic elements of forgery are :

(i) the making of false document or part of it and;

(ii)such making should be with such intention as is specified in the Section viz.

(a) to cause damage or injury to (i) the public, or (ii) any person; or

(b) to support any claim or title; or

(c) to cause any person to part with property; or

(d) to cause any person to enter into an express or CC No.04/2011 Page 189/217 implied contract; or

(e) to commit fraud or that fraud may be committed.

253. Thus, to commit a forgery the first ingredient is making of a false document and it should be done with an intention to do any of the five ingredients mentioned from point (a) to (e) in the above para.

254. In the present case, accused Praveen Agarwal has forged Ex. PW31/7 and PW 31/8 with an intention to support the claim of accused O.P.Rajwanshi Proprietor of M/s.Vikram Enterprises that he has utilized the loan amount properly and for the purpose for which the loan was disbursed to M/s. Vikram Enterprises. This view is also supported by the judgment of Hon'ble Supreme Court which is reported as AIR 1962 SC 1821. Accused Praveen Agarwal has forged Ex. PW31/7 and PW 31/8 also with the intention to support the claim of accused V.K. Bhutiani that the loan was disbursed to M/s. Vikram CC No.04/2011 Page 190/217 Enterprises in accordance with the Rules and procedure. Therefore, it is proved that accused Praveen Agarwal has forged Ex. PW31/7 and PW31/8.

255.In a judgment reported as Chatru Malik Vs. Emperor 29 Cr. LJ 851, it was held that the word 'makes' does not mean anything more than makes, that is to say, creates or brings into existence. Therefore, in view of this judgment, the essential requirement of making a false document is that the document should have been brought into existence. In the present case, the accused Praveen Agarwal by signing as Ashwani Kumar on Ex. PW31/7 and Ex. PW31/8 has brought the said documents in existence and thus, as per this judgment the false document Ex. PW31/7 and PW31/8 were made by accused Praveen Agarwal.

256. The other contention of Ld. defence Counsel is that the documents Ex. PW31/7 and PW31/8 were not used at CC No.04/2011 Page 191/217 the time of disbursement of the loan and therefore, no offence was committed by accused Praveen Agarwal. In a judgment reported as AIR 1976 SC 1008, it was held that the offence of forgery is complete as soon as a false document has been made though no use of the document is, as a fact, ever made.

257. It is settled law that for committing forgery, a signature must be made by a person who knows that he has not got authority from the person whose signature he purports to make on the document. In the present case, the accused Praveen Agarwal has forged the signatures of Ashwani Kumar. Ashwani Kumar did not authorize the accused Praveen Agarwal to put his signatures as Ashwani Kumar. The signatures of Ashwani Kumar were forged on the letter heads of M/s. Multiple Traders of which accused Rashmi Agarwal is Proprietor. Accused Rashmi Agarwal has also not authorised the accused Praveen Agarwal to put signatures on Ex. PW31/7 and Ex. PW31/8. Hence, CC No.04/2011 Page 192/217 it is proved that accused Praveen Agarwal has signed Ex. PW31/7 and Ex. PW31/8 as Ashwani Kumar without any authority. Hence, the accused Praveen Agarwal has forged Ex. PW31/7 and PW31/8.

258. The charge has been framed for the offences punishable u/s 468/471 I.P.C. It has not been proved by the prosecution that the Ex. PW31/7 and PW 31/8 were used at the time of disbursement of the loan to M/s. Vikram Enterprises. Therefore, the charge of the offences punishable u/s 468/471 I.P.C. has not been proved against accused Praveen Agarwal. However, the offence of forgery which is punishable u/s 465 I.P.C. has been proved against accused Praveen Agarwal.

259. The prosecution has failed to lead any direct evidence of conspiracy against the accused Praveen Agarwal. The Ld. P.P. has placed reliance upon Ex. PW12/D5X20 to substantiate the charge of conspiracy. This a letter CC No.04/2011 Page 193/217 written by accused Praveen Agarwal to the Chief (Vigilance), New Bank of India, New Delhi. It was contended that the perusal of this letter shows that the accused persons were known to each other and this fact has been mentioned in this letter. It was also contended that it is admitted by accused Praveen Agarwal in this letter that accused O.P. Rajwanshi and accused Neeraj Jain had come to him for preparing a project profile for an export house. It is also stated in the letter that they have also met accused V.K. Bhutiani and in this regard proposal was discussed. In my view, this letter is not a proof of conspiracy as this letter also shows that accused Praveen Agarwal has also written in this letter that he rendered the services which any consultancy firm would have rendered. Hence, it is clear from the contents of this letter that the accused Praveen Agarwal has not talked about any involvement in the commission of offence. It talks about the prior meeting of the accused persons and discussion of the loan proposal, at the same CC No.04/2011 Page 194/217 time, it says that the accused Praveen Agarwal rendered the services being a consultancy firm. So far as the prior meeting of accused persons is concerned, it is an admitted case that accused Praveen Agarwal was known to accused Neeraj Jain and accused O.P. Rajwanshi, being a Chartered Accountant. Hence, in my view, this letter does not in any manner proves conspiracy between the accused persons. The prosecution has also failed to lead any evidence that accused Praveen Agarwal has obtained any monetary benefit out of the loan amount advanced by the Bank to M/s. Vikram Enterprises. Allegations against accused Neeraj Jain

260. The case of the prosecution is that accused Neeraj Jain was the main beneficiary of the criminal conspiracy hatched by the accused persons, as the major portion of the amount, which the accused persons received by defrauding New Bank of India, went into his hands. It is alleged that M/s. Haji Guddar S. Abdul Karim had CC No.04/2011 Page 195/217 received Rs. 14.90 Lacs by way of two Pay Orders issued by New Bank of India in its favour. Out of the amount of Rs. 14.90 Lacs, accused S. Mohd. Yusuf Proprietor of M/s. Haji Guddar S. Abdul Karim gave a sum of Rs. 14.64 Lacs to accused Neeraj Jain. Accused Neeraj Jain had sent some letters to M/s. Haji Guddar S. Abdul Karim (Prop. S. Mohd. Yusuf). The said letters are Ex. PW7/E, PW7/F, PW7/G and Ex. PW18/B1. These letters have been seized from the house of accused O.P. Rajwanshi at Meerut, during search. The said letters read as under : Ex. PW7/E : "HAJI GUDDAR S. ABDUL KARIM SUBZI MANDI MEERUT CANTT.

ATTENTION : MR. MOHD. YUSUF.

DEAR SIRS.

I HAVE BEEN VERY DISAPPOINTED WITH THE PROGRESS MADE BY YOU. DESPITE OUR REPEATED REQUESTS YOU HAVE NOT BEEN ABLE TO PROCURE THE EXACT MATERIAL WHICH WAS APPROVED WHEN PLACING CC No.04/2011 Page 196/217 ORDER.

AS A RESULT I AM CANCELLING THE ORDER PLACED UPON YOU WITH IMMEDIATE EFFECT.

AS PER OUR DISCUSSION IN THE MORNING YOU ARE REQUESTED TO HANDOVER THE ENTIRE AMOUNT BACK TO ME WHICH WAS GIVEN TO YOU AS ADVANCE AFTER DEDUCTING RS. 16000/ BY CASH/D.D. I HEREBY CONFIRMING HAVING RECEIVED RS. 14,64,000/ (RS. FOURTEEN LACS SIXTY FOUR THOUSAND AFTER DEDUCTING RS. 16000/ AS EXPENSES INCURED BY YOU IN CASH.

NEERAJ JAIN NEW DELHI DATED 2711990."

Ex. PW18/B1 : "HAJI GUDDAR S. ABDUL KARIM SUBZI MANDI MEERUT CANTT.

ATTENTION : MR. MOHD. YUSUF.

DEAR SIRS.

I HAVE BEEN VERY DISAPPOINTED WITH THE PROGRESS MADE BY YOU. DESPITE OUR REPEATED REQUESTS YOU HAVE NOT BEEN ABLE TO PROCURE THE EXACT MATERIAL WHICH WAS APPROVED WHEN PLACING ORDER.

CC No.04/2011 Page 197/217 AS A RESULT I AM CANCELLING THE ORDER PLACED UPON YOU WITH IMMEDIATE EFFECT.

AS PER OUR DISCUSSION IN THE MORNING YOU ARE REQUESTED TO HANDOVER THE ENTIRE AMOUNT BACK TO ME WHICH WAS GIVEN TO YOU AS ADVANCE AFTER DEDUCTING RS. 16000/ BY CASH/D.D. I HEREBY CONFIRMING HAVING RECEIVED RS. 14,64,000/ (RS. FOURTEEN LACS SIXTY FOUR THOUSAND AFTER DEDUCTING RS. 16000/ AS EXPENSES INCURED BY YOU IN CASH.

NEERAJ JAIN NEW DELHI DATED 2711990."

Ex. PW7/F : "HAJI GUDDAR S. ABDUL KARIM SUBZI MANDI MEERUT CANTT.

ATTENTION : MR. MOHD. YUSUF.

DEAR SIRS.

I HAVE BEEN VERY DISAPPOINTED WITH THE PROGRESS MADE BY YOU. DESPITE OUR REPEATED REQUESTS YOU HAVE NOT BEEN ABLE TO PROCURE THE EXACT MATERIAL WHICH WAS APPROVED WHEN PLACING ORDER.

CC No.04/2011 Page 198/217 AS A RESULT I AM CANCELLING THE ORDER PLACED UPON YOU WITH IMMEDIATE EFFECT.

NEERAJ JAIN NEW DELHI DATED 2711990.

Ex. PW7/G : "HAJI GUDDAR S. ABDUL KARIM SUBZI MANDI MEERUT CANTT.

ATTENTION : MR. MOHD. YUSUF.

DEAR SIRS.

I HAVE BEEN VERY DISAPPOINTED WITH THE PROGRESS MADE BY YOU. DESPITE OUR REPEATED REQUESTS YOU HAVE NOT BEEN ABLE TO PROCURE THE EXACT MATERIAL WHICH WAS APPROVED WHEN PLACING ORDER.

CC No.04/2011 Page 199/217 AS A RESULT I AM CANCELLING THE ORDER PLACED UPON YOU WITH IMMEDIATE EFFECT.

14,64,000/ (RS. FOURTEEN LACS SIXTY FOUR THOUSAND AFTER DEDUCTING RS. 16000/ AS EXPENSES INCURED BY YOU IN CASH.

sd/ NEERAJ JAIN NEW DELHI DATED 2711990."

261. The prosecution case is that Ex. PW7/E, PW7/F, PW7/G and Ex. PW18/B1 have been proved in accordance with law and therefore, it is proved that accused Neeraj Jain has received Rs. 14.64 Lacs from S. Mohd. Yusuf Proprietor of M/s. Haji Guddar S. Abdul Karim. It was the contention of the Ld. P.P. that it is proved that accused Neeraj Jain is the main beneficiary of the criminal conspiracy hatched by the accused persons as the major portion of the loan amount was CC No.04/2011 Page 200/217 received by accused Neeraj Jain.

262. Now, the question is that whether Ex. PW7/E, PW7/F, PW7/G and Ex. PW18/B1 have been proved in accordance with law. PW7 Sh. Manoj Kumar Mittal has identified the signatures of accused Neeraj Jain on Ex. PW7/E, PW7/F, PW7/G. PW7 Sh. Manoj Kumar Mittal has stated that he knows accused Neeraj Jain who is son of Sh. Umesh Chand Jain. He has stated Ex. PW7/E, PW7/F, PW7/G bears the signatures of accused Neeraj Jain. He also stated that he had seen the signatures of accused Neeraj Jain on various documents which were received by him. He has nowhere stated in his examination in chief that he has seen the accused Neeraj Jain writing and signing. In his crossexamination, he has stated that he had seen accused Neeraj Jain once or twice in India and had also seen him in Hongkong. Meaning thereby, he was not having much acquaintance with accused Neeraj Jain. He also admitted that Ex. CC No.04/2011 Page 201/217 PW7/E, PW7/F, PW7/G were not executed in his presence. Meaning thereby, he had not seen the accused Neeraj Jain signing Ex. PW7/E, PW7/F, PW7/G. In his crossexamination PW7 Sh. Manoj Kumar Mittal has stated that he had seen accused Neeraj Jain signing the documents across the table. It is a well known fact that when a person sees other person signing some papers across the table, it would not be possible for the person sitting across the table to see the signatures properly. Therefore, PW7 Sh. Manoj Kumar Mittal could not have seen properly accused Neeraj Jain signing some papers, while sitting the across the table.

263. Accused Neeraj Jain also stood as guarantor of the loan taken by the accused O.P. Rajwanshi Proprietor of M/s. Vikram Enterprises. Therefore, he had signed some papers and documents at the time of making the loan application by accused O.P. Rajwanshi. Admittedly, the signatures of Neeraj Jain were available in the Bank. The CC No.04/2011 Page 202/217 Investigating Officer has not sent the admitted signature of accused Neeraj Jain with his questioned signatures appearing on Ex. PW7/E, PW7/F, PW7/G and Ex. PW18/B1, to GEQD for comparison and expert opinion. No explanation has been given by the Investigating Officer why this was not so done by him. The Investigating Officer was a senior officer and such type of lapse or mistake on his part is not expected. I fail to understand why the admitted signatures of accused Neeraj Jain were not sent to GEQD for comparison with his questioned signatures. This was the best evidence which the Investigating Officer should have collected. But, he did not do so. Rather, he made an attempt to prove the questioned signatures of accused Neeraj Jain from a person who was neither much acquainted with accused Neeraj Jain nor with his handwriting and signatures. On the other hand, accused Neeraj Jain has examined DW4 Sh. Deepak Jain who is also a handwriting expert. He has deposed that the admitted signatures of accused CC No.04/2011 Page 203/217 Neeraj Jain do not match with his questioned signatures. The settled law is that the testimony of the defence witness is at par with that of the prosecution witness. The signatures of accused Neeraj Jain, on Ex. PW18/B1, have been not identified by PW7 Sh. Manoj Kumar Mittal and the signatures of accused Neeraj Jain on Ex. PW7/E, PW7/F, PW7/G have not been proved in accordance with law and to the satisfaction of this Court.

264. If for the sake of arguments, it is assumed that Ex. PW7/E, PW7/F, PW7/G and Ex. PW18/B1 have been proved in accordance with law, even then, it does not give any support to the prosecution case. The perusal of Ex. PW7/E, PW7/F, PW7/G and Ex. PW18/B1 shows that the said documents do not convey any sense as the contents thereof are self contradictory. In this regard, some important points which are to be noted are as under: i. It is written in these documents "I HAVE BEEN VERY CC No.04/2011 Page 204/217 DISAPPOINTED WITH THE PROGRESS MADE BY YOU. DESPITE OUR REPEATED REQUESTS YOU HAVE NOT BEEN ABLE TO PROCURE THE EXACT MATERIAL WHICH WAS APPROVED WHEN PLACING ORDER. AS A RESULT I AM CANCELLING THE ORDER PLACED UPON YOU WITH IMMEDIATE EFFECT." This means that as per these letters the order was placed for supply of garments by accused Neeraj Jain, whereas, the order in the present case was placed by accused O.P. Rajwanshi. This also shows that the accused Neeraj Jain has cancelled the order.

ii. It is further stated in the said letters "AS PER OUR DISCUSSION IN THE MORNING YOU ARE REQUESTED TO HANDOVER THE ENTIRE AMOUNT BACK TO ME WHICH WAS GIVEN TO YOU AS ADVANCE AFTER DEDUCTING RS. 16000/ BY CASH/D.D." This means that vide the said letters accused Neeraj Jain has requested accused S. Mohd. Yusuf to return the entire amount to him. iii. It is further written in these letters "I HEREBY CONFIRMING HAVING RECEIVED RS. 14,64,000/ (RS. CC No.04/2011 Page 205/217 FOURTEEN LACS SIXTY FOUR THOUSAND AFTER DEDUCTING RS. 16000/ AS EXPENSES INCURED BY YOU IN CASH." This means that accused Neeraj Jain has confirmed having received the payment of Rs. 14.64 Lacs from S. Mohd. Yusuf.

265. Thus, it is clear that vide these letters i.e. Ex. PW7/E, PW7/F, PW7/G and Ex. PW18/B1, the accused Neeraj Jain had requested S. Mohd. Yusuf to make payment to him (Neeraj Jain) and at the same time, in these letters, the accused Neeraj Jain had confirmed having received the payment of Rs. 14.64 Lacs from S. Mohd. Yusuf. This is not possible and therefore, the contents of these letters are vague and self contradictory. Hence, the said letters i.e. Ex. PW7/E, PW7/F, PW7/G and Ex. PW18/B1 do not convey any sense or meaning and hence, are not in any manner are beneficial to the prosecution case.

266. It is further important to be noted that Ex. PW7/E, CC No.04/2011 Page 206/217 PW7/F, PW7/G and Ex. PW18/B1 are allegedly written by accused Neeraj Jain to S. Mohd. Yusuf. All the said letters are original and written to same person. Meaning thereby, if the said letters are believed to be true, the accused Neeraj Jain had received Rs. 58.56 Lacs (Rs. 14.64 x 4). Therefore, these letters do not convey any sense and are meaningless.

267. The accused Neeraj Jain had stood surety for M/s. Vikram Enterprises and had offered his DDA Flat at Jhilmil Colony, Delhi, as security in the form of negative lien. Admittedly, the title of the said DDA flat of Neeraj Jain was clear. Being the guarantor of M/s. Vikram Enterprises, his duty was to pay the loan amount in case of default made by M/s. Vikram Enterprises. The bank has filed recovery suit before Debt Recovery Tribunal and accused Neeraj Jain had made the payment to the Bank before the Debt Recovery Tribunal and thus, has discharged his liability being the guarantor. Accused CC No.04/2011 Page 207/217 Neeraj Jain stood guarantor for loan obtained by accused O.P. Rajwanshi and to stand guarantor, itself is no offence.

268. During the course of arguments, it was argued by the Ld. P.P. for CBI that M/s. Vikram Enterprises never existed at 31, Ring Road, Lajpat Nagar, Delhi. It was argued that 31, Ring Road, Lajpat Nagar, Delhi, was the residential address of accused Neeraj Jain and he had allowed to use his residential address to be filled in the loan application, as the address of M/s. Vikram Enterprises. In this regard, the crossexamination of the Investigating Officer is important to be noted. The relevant part of his crossexamination is reproduced as under: "The address of M/s. Vikram Enterprises was located in PhaseIV of Lajpat Nagar. When I had visited there, I had found some servants present in the house and I had made inquiries CC No.04/2011 Page 208/217 from them. None of them, however, has been cited as a witness."

269. Thus, it is clear from the statement of Investigating Officer that address of M/s. Vikram Enterprises was located by him in Lajpat Nagar. He has also stated that he had made inquiries from servants. He has not disclosed about the inquiries made by him. In case M/s. Vikram Enterprises was not in existence, then he should have recorded the statement of the persons from whom he made inquiries and should have cited them as witnesses. But, the Investigating Officer has not done so. Therefore, the contention raised by the Ld. P.P. during the course of arguments is without any merit.

270. It is the case of the prosecution that the criminal conspiracy was hatched by the accused persons to cheat and defraud New Bank of India. To prove the charge of cheating the onus is on the prosecution.

CC No.04/2011 Page 209/217

271. In this case, the New Bank of India did not make any complaint that it was cheated by the accused persons. The FIR in this case was registered by the CBI on the basis of source information.

272. In a case reported as AIR 1928 Mad 224, it was held that to prove a charge under section 420 IPC the prosecution has to prove :

a) the accused cheated some person (i.e. the complainant)

b) he did so dishonestly; and

c) he thereby induced the person deceived (i.e. the complainant)

i) to deliver any property to any person, or to make, alter or destroy the whole, or any part of a valuable security or anything which was assigned or sealed and which was capable of being converted into a valuable security. CC No.04/2011 Page 210/217

273. In this case, the prosecution has not led any cogent evidence to prove this charge. No witness of New Bank of India has led any cogent evidence that it was cheated by the accused persons. Even the statement of account of the New Bank of India has not been proved by the prosecution.

274. To prove the charge of cheating, the prosecution has mainly relied upon the evidence that the New Bank of India has advanced loan to M/s. Vikram Enterprises and the said loan was not repaid by M/s. Vikram Enterprises. It was contended that thus, the cheating has been done with New Bank of India. In my view merely the advancement of a loan by the bank which has not been repaid by the borrower, does not amount to cheating. To support this view, reliance can be placed upon a judgment reported as State of Kerala Vs. Thiraviyam Panicker (1962) 1 Cr. LJ 654, wherein, it was held that merely parting with money will not amount to cheating. CC No.04/2011 Page 211/217

275. Therefore, in view of the above discussion, I am of the considered opinion that the prosecution has failed to prove the ingredients of the offence of cheating. Therefore, the charge of cheating has not been proved. Conclusion

276. The first charge against the accused persons is in respect of conspiracy. In this case, there is no direct evidence of conspiracy. The charge of conspiracy rests entirely upon the circumstantial evidence. The case of the accused persons is that the chain of circumstantial evidence regarding the conspiracy is not complete and thus, the charge of conspiracy remains unproved. The Hon'ble Supreme Court in the case of Kehar Singh & Ors. Vs. The State (Delhi Admn.) AIR 1988 Supreme Court 1883, has held that the conspiracy can be proved by circumstantial evidence and express agreement need not be proved. It was also held that neither actual CC No.04/2011 Page 212/217 meeting of two persons is necessary nor it is necessary to prove the actual words of communication. The settled law is that where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence and the prosecution has to prove the charge beyond reasonable doubt. This was so held in State of Kerala Vs. P. Sugathan & Another 2000 SCC (Cri) 1474. Court is required to take the care and caution in evaluating circumstances and the evidence relied upon by the prosecution.

277. Admittedly, in the present case, there is no direct evidence to prove the charge of conspiracy. The charge of conspiracy is sought to be proved by the prosecution on the basis of circumstantial evidence. The prosecution has relied upon a chain of circumstances to prove the charge of criminal conspiracy. In this case, as per CC No.04/2011 Page 213/217 prosecution the accused persons have played different role and committed different acts under the criminal conspiracy hatched by them. As discussed above, the prosecution has failed to prove the complete circumstances and the individual acts committed by the accused persons. Hence, the chain of circumstantial evidence stands broken and remains incomplete. Therefore, the charge of conspiracy cannot be sustained. Accordingly, all the accused persons are acquitted of the charge of conspiracy.

278. The second charge against the accused persons is in respect of cheating punishable u/s 420 I.P.C. It has been held above that the prosecution has failed to prove the charge of cheating. Accordingly, all the accused persons are acquitted of this charge.

279. The third charge is against accused O.P. Rajwanshi. He expired during the trial and the proceedings against him CC No.04/2011 Page 214/217 were abated on 27.08.2007.

280. The fourth charge is against accused Praveen Agarwal for the offences punishable u/s 467/468/471 I.P.C. It has been held above that prosecution has failed to prove the charge under these sections. It has been held above that the accused Praveen Agarwal has committed the offence punishable u/s 465 I.P.C.

281. The Hon'ble Supreme Court of India in a case reported as State of Himachal Pradesh Vs. Tara Dutta, AIR 2000 SC 297 has held that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of minor offence, if the facts established indicate that such minor offence has been committed. Therefore, in view of the law laid down by the Hon'ble Supreme Court in this judgment, the accused Praveen Agarwal is held guilty for the offence punishable u/s 465 I.P.C. and is convicted thereunder.

CC No.04/2011 Page 215/217

282. The next charge is against the accused V.K. Bhutiani for the offence punishable u/s 13 (1)(d) of Prevention of Corruption Act, 1988. It has been held above that the prosecution has proved that the accused V.K. Bhutiani has committed criminal misconduct. Therefore, he is held guilty for the offence punishable u/s 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 and is convicted thereunder.

283. Therefore, in view of the above discussion, accused V.K. Bhutiani is convicted for the offence punishable under section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act,1988. He is acquitted of the other charges. Accused Rashmi Agarwal is acquitted of all the charges. Accused Praveen Agarwal is convicted for the offence punishable u/s 465 I.P.C. and he is acquitted of the other charges. Accused Neeraj Jain is acquitted of all the charges.

CC No.04/2011 Page 216/217

284. The accused V.K. Bhutiani and accused Praveen Agarwal shall be heard separately on the point of sentence.

Announced in the Open Court on 30.01.2016 (Surinder Kumar Sharma) Special Judge, P.C. Act (CBI) 09, Central District, Tis Hazari, Delhi.

CC No.04/2011 Page 217/217 IN THE COURT OF SURINDER KUMAR SHARMA SPECIAL JUDGE, P.C. ACT (CBI) 09, CENTRAL DISTRICT TIS HAZARI : DELHI.

CC No.04/2011 R.C. No.4(A)/91/CBI/SIUX/ND Case I.D. No.02401R0824892005 Central Bureau of Investigation Versus

1. Sh. V.K. Bhutiani S/o Sh. Brij Lal Bhutiani R/o G604, Prince Apartments 54, Indraprastha Extn.

Patparganj, Delhi.

Former Sr. Manager New Bank of India, EBlock Connaught Circus, New Delhi.

2. Sh. Praveen Agarwal S/o Sh. Shiv Shankar Agarwal R/o 248, CA Apartments A3, Paschim Vihar, New Delhi.

06.02.2016 Present : Sh. A. K. Kushwaha Ld. P.P. for CBI.

Convict V.K. Bhutiani with Sh. O.P. Faizi and Sh. Ashish Agarwal Advocates.

CC No.04/2011 Page 218/217 Convict Praveen Agarwal with Sh. C.L. Dhawan Advocate.

Order on Sentence I have heard the Ld. P.P. for the CBI, Sh. O.P. Faizi and Sh. Ashsih Agarwal Ld. Counsels for the Convict V.K. Bhutiani and Sh. C.L. Dhawan Ld. Counsel for the Convict Praveen Agarwal, on the point of Sentence. I have also perused the file.

It was submitted by the Ld. P.P. for CBI that the Convicts do not deserve any leniency on the point of Sentence. It was submitted that both the Convicts have been convicted for committing the fraud with the Bank which has caused a loss to the State exchequer. It was submitted that maximum punishment should be awarded to both the Convicts.

The Ld. Counsels of the Convict V.K. Bhutiani has submitted that he is 75 years of age and is suffering from various ailments. The Convict is not in a condition to walk properly and without the support of stick. He also needs an attendant round the clock. The Convict is paralytic and a patient of tongue cancer. He has no source of income and is CC No.04/2011 Page 219/217 dependent on his son who is residing in Mumbai. It was submitted that the Convict has faced trial for a long period. It was contended that all the dues of the Bank have been paid. The Convict has also filed his affidavit in support of his contentions along with copies of medical documents. The Ld. Counsel for the Convict has placed reliance upon a judgment dated 21.01.2015 of Hon'ble Karnataka High Court in the case of State of Karnataka Vs. Raoteppa Criminal Appeal No. 3553 of 2010.

The Ld. Counsel for Convict Praveen Agarwal has submitted that Convict Praveen Agarwal has faced trial for a considerable long period and has been regularly appearing in the Court. The Convict is the only earning member in his family and has to support his wife who is not keeping good health and his son who is a student. The Convict has also to support his married daughter and Soninlaw who are dependent upon him as they are physically handicapped, with a baby girl. The Convict has also to maintain and support his old father. He is not a previous convict. It was submitted that the Convict be CC No.04/2011 Page 220/217 released on probation. It was stated that there is no legal bar in releasing the Convict on probation. In support of this contention, reliance has been placed upon the judgments reported as 1982 C.C. Cases 31 (SC), 2006 (2) JCC 1188, 2013 (2) JCC (1072) and 2008 (2) RCR Crl. 478. The Convict has also filed an affidavit to support his contentions.

I have considered the contentions of the Ld.P.P. for CBI and the Ld. Counsels for both the Convicts. The Convict V.K. Bhutiani has been convicted for an offence punishable under the Prevention of Corruption Act, 1988. The menace of corruption is a serious threat to the society and it causes loss to the State exchequer. The problem of corruption is like a disease of cancer to the society. The Convict V.K. Bhutiani is 75 years of age. He is paralytic, suffering from tongue cancer, he is unable to walk and unable to communicate properly. The offence was committed in the year 1989 and at that time the minimum sentence prescribed u/s 13 (2) of the Prevention of Corruption Act, 1989 was one year. Having regard to the totality of the circumstances and in view of the judgment of CC No.04/2011 Page 221/217 Hon'ble High Court of Karnataka reported as State of Karnataka Vs. Raoteppa (Supra) decided on 21.01.2015, the Convict V.K. Bhutiani is sentenced to undergo Imprisonment for a period of two years with the fine of Rs. 20000/ for the offence punishable under Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988, in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of three months. He is sentenced accordingly. The benefit u/s 428 Cr.P.C. be given to him.

The Ld. Counsel for the Convict Praveen Agarwal has very strongly argued for release of Convict Praveen Agarwal on the probation which was opposed by the Ld. P.P. for CBI. The Convict Praveen Agarwal has been convicted for the offence of forgery. He is stated to be a Chartered Accountant and an Advocate practising in Taxation. He is not a layman and he knows the consequences of committing forgery. Considering the nature of the offence and the circumstances under which it was committed, I do not see any justification to release the Convict Praveen Agarwal on probation. He is CC No.04/2011 Page 222/217 sentenced to undergo Rigorous Imprisonment for a period of one year with a fine of Rs. 20,000/ for the offence punishable u/s 465 I.P.C., in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of three months. He is sentenced accordingly. The benefit u/s 428 Cr.P.C., if any, be given to him.

The Convicts have moved applications u/s 389 (3) Cr.P.C. for suspension of Sentence and for grant of bail for the purpose of filing appeal.

Heard.

The Sentence of Convicts is suspended for 30 days for filing the appeal on furnishing personal bond of Rs. 50,000/ each with one surety of the like amount.

Copy of the Judgment and Order on Sentence be given immediately to the Convicts, free of cost.

File be consigned to Record Room.


Announced in the Open Court
on  06.02.2016                     (Surinder Kumar Sharma)  
                          Special Judge, P.C. Act/(CBI)  09 
                            Central District, Tis Hazari/Delhi.


CC No.04/2011                                            Page 223/217

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