Delhi District Court
K.T. Chandramohan vs State (Nct Of Delhi) on 16 August, 2018
IN THE COURT OF SHRI NARESH KUMAR MALHOTRA
ASJ/SPECIAL JUDGE, CBI02, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
Cr. Revision No. 256/2017
In the matter of:
K.T. Chandramohan,
S/o Late Sh. N.R. Narayanan
R/o. C22, Manas Vihar Apartments,
Mayur Vihar, PhaseI, Delhi110092
....Petitioner.
Versus
State (NCT of Delhi)
.....Respondent.
Date of Institution : 06.06.2017
Date of Arguments : 09.08.2018
Date of Decision : 16.08.2018
AND
Cr. Revision No. 233/17
In the matter of:
Shri Virender Singh
S/o Shri Vidya Ram,
R/o Village Sadopur, PO Dhoom, (Dadri),
District Gautam Budh Nagar,
U.P.
CR Nos. 233/17 & 256/17
1 of 15
07.01.2017
....Revisionist.
Versus
The State
.....Respondent.
Date of Institution : 23.05.2017
Date of Arguments : 09.08.2018
Date of Decision : 16.08.2018
JUDGMENT
1. Vide this common judgment, I shall decide revision petitions against the order 09.03.2017 passed by Ld. ACMM01, PHC, New Delhi in case FIR No. 284/95, PS Connaught Place (Crime Branch). Vide which Ld. ACMM01 has ordered to frame charge u/s 120 B IPC, Section 408 r/w Sec. 120 B IPC, Section 471/467 r/w Section 120B IPC and Section 477A r/w Section 120 B IPC against the petitioners. Both the revision petitions are being decided together as both the revision petitions are arising out of order dated 09.03.2017 passed by Ld. Trial Court.
2. Aggrieved by order dated 09.03.2017, the petitioner K.T. Chander Mohan has filed the revision petition bearing no. 256/17 on the grounds that impugned order is bad in law and against the settled law & facts on record and hence, is liable to be set aside. The impugned order is an CR Nos. 233/17 & 256/17 2 of 15 07.01.2017 example of nonapplication of mind and the Ld. Trial Court ignored the relevant considerations to be kept in mind while passing the impugned order. Ld. Trial Court has ordered to frame charge against the petitioner without application of mind and merely on certain assumptions, presumptions, surmises and conjectures. Ld. ACMM has also mentioned in the impugned order that there is no direct material to connect petitioner with the erasing of stamps of JMSSB from deposit forms, however, certain omissions on the part of the accused reflects his culpability.", makes it apparent that the charges have been framed against the petitioner merely on the basis of presumptions, surmises and conjectures. It is mentioned that Ld. Trial Court did not appreciate that alleged act was done by the employed staff at the instance and with the consent of the senior officials working with JMSSB. The petitioner was employed as the manager of JMSSB and he did not have any authority to take independent decisions and all of his alleged acts, if any, were under the directions of the senior officials of JMSSB. There is nothing on the record to connect the petitioner with the commission of offences u/s 471, 467, 477A, 408, 120B IPC. There is no evidence on the record to show that petitioner fraudulently or dishonestly used as genuine any document which he knows or has a reason to believe to be a forged. Ld. ACMM01 herself in the order observed that ingredients of cheating are not made out in the present case, then how the CR Nos. 233/17 & 256/17 3 of 15 07.01.2017 offence of forgery for the purpose of cheating can be made out against the petitioner. It was specifically agreed between JMSSB and WTC that the alleged transaction will be routed through WTC and will bear the stamp of WTC. However, the fact that some application forms received from Bombay office were all left blank in the brokers column makes it apparent that the officials of JMSSB, Mumbai were aware and made specific directions for the impugned transaction of mobilizing deposits by JMSSB for NSIC and were aware that the stamp of WTC is to be affixed at Delhi. The act of erasing the stamp of JMSSB and putting the stamp of WTC on the deposit forms was done by the staff employed at JMSSB on the directions issued by JMSSB, Mumbai. Ld. Trial Court did not appreciate that petitioner was not associated with the accounts department and could not have committed the alleged offences. Ld. ACMM did not appreciate that there is no material in the form of statement of any witness or otherwise, to show that the petitioner had altered or erased any document and as such the order of framing of charge under Section 477 A IPC is bad in law and cannot be sustained. There is no material on record to show that petitioner was involved in a conspiracy regarding the commission of the alleged acts. Therefore, the order of framing of charge under Section 120B IPC against the petitioner is bad in law. Ld. Trial Court did not appreciate that it was a transaction wherein only civil liability could have been fastened CR Nos. 233/17 & 256/17 4 of 15 07.01.2017 on WTC being a case of breach of contract and there was no dishonest or fraudulent intention to commit any criminal act amounting to an offence. It is prayed that order dated 09.03.2017 be set aside and revision petition be allowed.
3. Aggrieved by the order dated 09.03.2017, revisionist Virender Singh has filed the revision petition bearing no. 233/2017 on the grounds that the impugned order is totally against the facts, evidence on file and law applicable to them and the same is liable to be set aside. Ld. Trial Court did not appreciate that any act without intent is no crime and in the present case the criminal intention of the petitioner is not made out by perusing the entire complaint of the complainant. Ld. Trial Court did not appreciate that dealings with the complainant and accused persons were out come of the written agreement whereby the complainant M/s. JMSSB was under the liability to deposit of Rs. 56 crores from public or share broker to NSIC in order to achieve the Noida Branch Funds Target under its fixed deposit scheme. The letter of agreement dated 18.01.1994 was signed by the Finance Manager K.T. Chander Mohan on behalf of JMSSB and the second request letter of Wellcome Tea Company dated 22.01.1994 was sent to JMSSB and was duly received by C.S. Tiwari its account officer. The petitioner has not concealed anything from the complainant company. Ld. CR Nos. 233/17 & 256/17 5 of 15 07.01.2017 Trial Court overlooked the fact that it is an admitted and recorded fact that JMSSB, the complainant could only secure an amount of Rs. 2,74,67,000/ instead of 56 crores and for that reason, the same was not entitled to receive incentive @ 2.5% from Welcome Tea & Coffee India Limited, which clearly shows that the complaint of the complainant is baseless and the complainant was also responsible for mis managing its affairs. Ld. Trial Court also did not appreciate that as per letter of agreement dated 18.01.1994, JMSSB has failed to deposit the sum of Rs. 56 crores within the stipulated period of 45 days, as contemplated in the letter of intent. As the complainant company has failed to fulfill its promise, the complainant company was not entitled for receiving incentives. Ld. Trial Court also committed serious error in overlooking the fact that JMSSB demanded a sum of Rs. 6,86,675/ @ 2.5% on the amount of Rs. 2,74,67,000/ from Welcome Tea & Coffee India Ltd and Welcome Tea & Coffee India Ltd got only a sum of Rs. 4,00,000/ @ 1.5% from NSIC. The revisionist was willing to pay this amount but the complainant refused to accept and insisted on taking the entire amount claimed by it. Ld. Trial Court did not appreciate that the petitioner was benefited and has not caused any financial loss to any of the person or even to the JMSSB. So, the offence under Section 420 IPC cannot be made out as the basic ingredients of the offence are not made out either from the complaint or from the investigation carried CR Nos. 233/17 & 256/17 6 of 15 07.01.2017 out by the police. Ld. Trial Court also did not appreciate that there is no evidence in the entire challan filed by the investigating agency regarding the prior meeting of mind of both the accused persons in this case in order to show the commission of the crime under Section 120B IPC. It is also mentioned that both the revisionists were interrogated and during investigation police is not able to collect any evidence against the petitioner Virender Singh. It is prayed that order dated 09.03.2017 be set aside.
4. I have heard Ld. counsels for the petitioners, Ld. Addl. PP for the State and perused the written arguments filed by the petitioners in both the revision petitions and Trial Court Record very carefully.
5. Perusal of the Trial Court Record reveals that the present case was registered on the complaint dated 03.04.1995 given by J.M. Share & Stock Brokers Limited to the Commissioner of Police, Delhi mentioning that petitioner K.T. Chandramohan was working as a Manager with J M Share & Stock Brokers Ltd. at its New Delhi office since 1989. In the complaint, it is also mentioned that sometime from January, 1994 onwards stamp of JMSSB was erased from and/or not affixed on sveral deposit application forms for NSIC deposits received from JMSSB H.O. at Bombay and Delhi branch Subbrokers/ investors. This was done under express CR Nos. 233/17 & 256/17 7 of 15 07.01.2017 directions from Mr. K. T. Chandramohan. On such application forms Mr. K.T. Chandramohan had put the stamp "through the efforts of wellcome Tea and Coffee Company India Ltd", at his sole discretion. Total amount of deposits collected through such forms aggregated to Rs. 2,74,67,000/. Brokerage/Commission on said deposits amounted to Rs. 6,86,675/. In the complainant it is also mentioned that as the stamp of JMSSB was erased from/not put on concerned Deposit Application Forms, NSIC was not bound to pay brokerage/ commission to JMSSB. Mr. K.T. Chandramohan was fully aware of this situation. Still, he caused to release subbrokerage/ incentive commission both at H.O. and Delhi branch against aforesaid deposits which aggregated to Rs. 5,61,732.50. This was done by Mr. K.T. Chandramohan under an implied message that the concerned amount of brokerage was received by JMSSB, Delhi. It is also mentioned in the complaint that till date no money has been received nor an account of Welcome Tea & Coffee Company India Ltd. opened in the Books of Accounts of JMSSB, Delhi to reflect this debit. All such outstandings were debited to the account of NSIC which still remains. According to Mr. K.T. Chandramohan, the above dues of JMSSB would be paid to JMSSB to Welcome Tea & Coffee Company India Ltd. having their office situated at Thapar Plaza (Near Hindustan Lever Ltd.), G.T. Road, Ghaziabad, (U.P.). On our enquiring with NSIC, they have advised us that they have paid CR Nos. 233/17 & 256/17 8 of 15 07.01.2017 brokerage to Wellcome Tea & Coffee Company India Ltd at their prescribed rates as the concerned application forms had their rubber stamp. No payment has been made to JMSSB by Wellcome Tea & Coffee Company India Ltd till date and on account of which JMSSB has suffered a loss of Rs. 6,86,675/. In the complaint it is also mentioned that the above facts were unearthed by us during the scrutiny of business done for the Financial Year 199394 and thereafter. Further internal investigations were done in the matter from July, 1994. Mr. K.T. Chandramohan stopped attending office suddenly on and from 7th October, 1994 without any intimation or leave. Services of Mr. K.T. Chandramohan were terminated from 21.2.1995 vide letter dated 21.02.1995. A public notice to this effect was published in Economic Times and Navbharat Times, Delhi edition both dated 08.03.1995. They understand that Mr. K.T. Chandramohan has now joined Wellcome Tea & Coffee Company India Ltd as General Manager. A copy of the letter dated March 21,1995 signed by him for and on behalf of the said company is enclosed for ready reference. The fact that Mr. K.T. Chandramohan caused the loss to JMSSB by bringing the interface of Wellcome Tea & Coffee company India Limited and went on to join the same CR Nos. 233/17 & 256/17 9 of 15 07.01.2017 company very clearly points to an ulterior motive and conspiracy. In the complaint, it is also mentioned that it is apparent that Mr. K.T. Chandramohan has cheated JMSSB and has also misappropriated Rs. 6,86,675/ after entering into a conspiracy with Wellcome Tea & Coffee Company India Limited. It is therefore requested that criminal proceedings may be initiated against Mr. K.T. Chandramohan and Wellcome Tea & Coffee Company India Ltd in accordance with the provision of law.
On the basis of this complaint, FIR was registered and investigation was carried out and during investigation both the petitioners were arrested and Ld. Trial Court has ordered to frame charge vide impugned order.
6. The Ld. ACMM in the impugned order has observed that there is sufficient material on record to frame charge against accused K.T. Chander Mohan as well as against accused Virender Singh. Ld. Trial Court has also observed that documents placed on record by complainant company reflect that accused K.T. Chander Mohan was initially hired as accountant and later on promoted as Manager. The CR Nos. 233/17 & 256/17 10 of 15 07.01.2017 deposit forms send to NSIC were seized during investigation and were sent to FSL. All the said seized documents have been signed by accused Virender Singh. As per FSL report stamp of Wellcome Tea and Coffee Company India Ltd was put after erasing stamp of JMSSB. Money was received from the account of NSIC in the account of Wellcome Tea and Coffee Company India Ltd as is reflected from account statement seized. Accused Virender Singh was Incharge of the day to day affairs of Wellcome Tea and Coffee Company India Ltd. which is one of the beneficiary of the whole transaction. Ld. Trial Court has also observed that as per complaint, this accused (K.T. Chander Mohan) did not maintain account of Wellcome Tea and Coffee Company India Ltd showing debit in favour of complainant towards the amount of brokerage received from NSIC but the sub broker/investors were paid their commission from the account of complainant at the instance of accused K.T. Chander Mohan. It is also mentioned that element of conspiracy is also reflected from the conduct of accused K.T. Chander Mohan in joining Wellcome Tea and Coffee Company without having been relieved by the complainant.
CR Nos. 233/17 & 256/17 11 of 15 07.01.2017 It is also mentioned in the order that FSL report clearly shows that stamps of complainant company were erased from deposit forms which are valuable security within the meaning of Section 30 of IPC as this would have created legal right in favour of complainant company to claim brokerage from NSIC and thus there is material to suggest forgery of the valuable security. The forged deposit forms were used to obtain brokerage commission in the account of Wellcome Tea and Coffee Company Ltd. Accused K.T. Chander Mohan, being entrusted with the deposit forms in the capacity of an employee of complainant, converted/misappropriated the said forms to his own use in pursuance to the conspiracy. The Ld. Trial Court has ordered to frame charge for the offences punishable u/s 120B IPC, Section 408 r/w Section 120 B IPC, Section 471/467 r/w Section 120 B IPC and Section 477 A r/w Section 120 B IPC.
7. During arguments, it is contended by Ld. counsels for the petitioners that the original documents are not on the record which are seized during investigation and these documents have been misplaced by the FSL. It is also contended that original result of FSL is also not CR Nos. 233/17 & 256/17 12 of 15 07.01.2017 on record.
Ld. counsels for both the petitioners have drawn my attention towards letter dated 24.01.2007 of F&C, EOW, Cr. Branch, New Delhi wherein it is submitted the efforts were made to trace the original documents which were sent to FSL in the above noted case but the same are not traceable. Attested photocopies of the original documents along with duplicate result have been obtained from FSL. The details of the documents are as follows:
1. Attested copies of the result No. 95/D0782 dated 29.04.97 (12 pps)
2. Attested copies of the questioned, admitted and specimen signatures ( 14 pps) It is requested that the above mentioned documents may please be considered as a secondary evidence for trial purpose. Further, Ms. Deepa Verma, Sr. Scientific Officer (Documents), FSL, Govt. of NCT, Delhi may kindly be considered as a witness in the case.
Thus, Ld. Trial Court has given prima facie view on the basis of photocopies of the documents. Admittedly, there are no CR Nos. 233/17 & 256/17 13 of 15 07.01.2017 original documents which were seized and were sent to FSL.
8. At this stage, it is submitted by Ld. counsels for the petitioners that Ld. Trial Court has passed the order without observing that there are no original documents on record and there is no report of FSL.
At this stage, it is submitted by Ld. Addl. PP for the State that Ld. Trial Court has mentioned about the result of FSL and discussed the result of FSL in the impugned order.
9. It is an admitted fact that original documents and result of FSL are not on the record. It is also submitted by Ld. counsels for the petitioners that they have not raised this contention before Ld. Trial Court that original documents and result of FSL are not on the record. They prayed that matter be remanded back. Ld. PP for the State has submitted that he has no objection if the matter be remanded back to Ld. Trial court.
As these contentions were not raised by the Ld. counsels for the petitioners at the time of addressing arguments on charge CR Nos. 233/17 & 256/17 14 of 15 07.01.2017 before the Ld. Trial Court, I deem it appropriate to remand back the matter to the Ld. Trial Court with the direction to decide the matter afresh as it was no where contended by Ld. counsels for the petitioners before the Ld. Trial Court that original documents and result of FSL has been misplaced. Ld. Trial Court is directed to pass a detail order after hearing the matter afresh. What will be effect on the case of the prosecution as there are no original documents and result of FSL on the record is to be decided by the Ld. Trial Court. Ld. Trial Court is directed not to influence by the judgment passed by this court and to pass a reasoned order after discussing all the contentions raised by Ld. counsels for the petitioners. With this revision petitions bearing Nos. 233/17 & 256/2017 are disposed of. Both the petitioners are directed to appear before Ld. Trial Court on 24.08.2018.
Trial Court record be sent back along with copy of common judgment. Revision files be consigned to Record Room, after necessary compliance.
Announced in Open Court (N.K. Malhotra)
on 16.08.2018. Spl. Judge, CBI02,
New Delhi District, PHC.
Digitally signed
CR Nos. 233/17 & 256/17
by NARESH
KUMAR 15 of 15
NARESH
07.01.2017 MALHOTRA
KUMAR Date:
MALHOTRA 2018.08.16
16:03:05
+0530