Delhi District Court
Cbi vs . 1. Rajesh Kohli, on 7 December, 2012
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CBI case . No.20/11
IN THE COURT OF SH. N. K. KAUSHIK
SPECIAL JUDGE, PC ACT, CBI,
DWARKA COURTS, NEW DELHI
CBI Case No. 20/11
Date of Institution: 27.01.2003
Date on which Judgment Pronounced: 20.11.2012
Decision: Conviction
CBI case no. 20/11
RC no. 1(E)/2001/EOWI/ New Delhi
In the matter of:
CBI versus. 1. Rajesh Kohli,
The then Divisional Manager,
National Insurance Ltd.,
DOX, New Delhi.
R/o 187, Pragati Apartment,
Club Road, Paschim Vihar,
New Delhi.
2. Ashok Kumar,
S/o Sh. Madan Lal,
R/o F1/34, Budh Vihar,
Delhi41.
3. Pramod Kumar Gupta,
S/o Shri Prakash Gupta,
R/o AS16, Shiva Enclave,
A4, Paschim Vihar,
New Delhi63.
4. Rakesh Modgil,
S/o Sh. Rameshwar,
R/o B6/A2,
IIT Campus, POHauzkhas,
New Delhi.
.............Accused persons
CBI vs. Rajesh Kohli & Ors. 1 of 87 pages
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CBI case . No.20/11
JUDGMENT
1. This is a corruption case, which was registered under Prevention of Corruption Act, 1988 and is relating to preparing, processing and passing of the forged, fabricated, false and bogus insurance claim wherein neither the consignor nor the consignee nor the transporter existed at the given address and the survey report and recovery shown was fake.
2. The case of the prosecution, is that, policy no.
21431743/97 for Rs.4,13,000/, was issued by Delhi Division OfficeX, for transit of 150 gunny bags of Adipic Acid from Mumbai to Delhi. That the said consignment was sent by M/s Leo Dye Chem, B/126, Ghatkopar Industrial Estate, LBS Marg, Ghatkopar (West), Mumbai86 to the Insured i.e. M/s Santoshi Chemicals, 304, Kanchan House, Karampura Commercial Complex, New Delhi, vide GR no. 3295 of M/s Shree Durga Carrier, A105/A, Adhyapak Nagar, Nangloi, Delhi. That the said cover note was signed by V.K. Bhutani, the then Administrative Officer and that the policy was booked under agency no. 10037.
CBI vs. Rajesh Kohli & Ors. 2 of 87 pages 3 CBI case . No.20/11
3. It is further alleged that the insured M/s Santoshi Chemicals had intimated, vide their letter, dated 29.09.97, the loss to Divisional Office. That the said letter was received by accused Rajesh Kumar Kohli, the then Divisional Manager, who appointed M/s P. Gupta & Company as surveyor and marked the letter to Sh. Atish Pathak, the then Administrative Officer.
4. It is further alleged that as per directions of the accused Rajesh Kumar Kohli, the then Divisional Manager, Sh. Atish Pathak wrote a letter to accused Pramod Kumar Gupta, intimating his appointment as surveyor in the case. That the said Sh. Pramod Kumar Gupta submitted his forged, fabricated and bogus report, dated 07.10.97, which was received by accused, Rajesh Kumar Kohli, the then Divisional Manager, who marked the same to Sh. Atish Pathak, the then Administrative Officer.
5. It is further alleged that the given address of M/s Santoshi Chemicals was visited, where it did not exist. The address at E3/7, Shiv Ram Park, Nangloi, Delhi, was, thereafter, visited, where one Ashok Kumar was found, who was CBI vs. Rajesh Kohli & Ors. 3 of 87 pages 4 CBI case . No.20/11 allegedly the owner of M/s Santoshi Chemicals. That the said Ashok Kumar could not give any satisfactory reply nor produce any document, in respect of the claim in question.
6. It is further alleged that in Mumbai, M/s Leo Dye Chem, who was the alleged consignor in this case, was also contacted and who categorically, denied having sent any consignment to M/s Santoshi Chemicals.
7. It is further alleged that M/s Shree Durga Carrier, the alleged transporter in this case, was contacted but was not found at the given address and it was found that the said premises was owned by Sh. Praveen Kumar, brother of Sh. Ashok Kumar and it was let out. That it was further revealed that M/s Santoshi Chemicals as per records of Punjab National Bank, Tri Nagar, was owned by Sh. Ashok Kumar Kochar.
8. It is further alleged that the typed claim note was signed and approved by the accused Rajesh Kumar Kohli, the then Divisional Manager for Rs.1,61,500/. CBI vs. Rajesh Kohli & Ors. 4 of 87 pages 5 CBI case . No.20/11
9. It is further alleged that the documents relating to the aforesaid claim were handed over to the recovery agent, M/s Recovery India International for recovery (owned by its proprietor accused Rakesh Modgil), who deposited a meager sum Rs.9,558/as recovery, on 25.09.98. That in this regard, accused Rakesh Modgil of Recovery India International, was also enquired, who disclosed that in spite of his efforts, he could not find M/s Shree Durga Carriers at the given address and that the recovery cheque was given to him by accused Rajesh Kohli, the then Divisional Manager and that he had not made any recovery, in this case, himself. That Sh. Pramod Kumar Gupta informed that he had surveyed the loss at the consignee's godown and that he was given all the papers by them only. The prosecution alleges that the consignee did not exist.
10. It is further alleged that the insured and the transporter was one and the same person and that the claim has been fabricated with the connivance of accused, Rajesh Kumar Kohli, the then Divisional Manager and other accused persons.
CBI vs. Rajesh Kohli & Ors. 5 of 87 pages 6 CBI case . No.20/11
11. It is further alleged that Sh. Atish Pathak was given papers by accused Rajesh Kohli and that he had prepared the claim note on the basis of the papers given to him by the said accused.
12. It is further alleged that the aforesaid claim was investigated and was found to be fabricated, false, forged and bogus.
13. The case of the prosecution, in brief, is that during the year 19971998, at New Delhi and other places, accused persons entered into a criminal conspiracy by having agreed to do an illegal act i.e. to cheat National Insurance Company Ltd., Divisional OfficeX, New Delhi, by fraudulently inducing it to sanction insurance claim in the name of M/s Santoshi Chemicals, 304, Karampura Commercial Complex, New Delhi, a nonexisting firm, under the proprietorship of accused Ashok Kumar, to the extent of Rs.1,61,500/, on the basis of fabricated, forged, bogus and false documents i.e. invoice, GR, Survey Report etc.
14. Further, accused Ashok Kumar, Proprietor of M/s CBI vs. Rajesh Kohli & Ors. 6 of 87 pages 7 CBI case . No.20/11 Santoshi Chemicals, in furtherance of the aforesaid criminal conspiracy, obtained Marine Policy No. 21341743/97 for sending a consignment of 150 gunny bags, containing Adipic acid from M/s Santoshi Chemicals, Delhi, vide receipt No. 3295 of M/s Shree Durga Carriers and reported to NIC DOX, New Delhi, about the damage of the consignment and that accused Rajesh Kumar Kohli, deputed accused Pramod Kumar Gupta of M/s P. Gupta and Co. for survey and that accused Pramod Kumar Gupta submitted bogus report, without carrying out survey and that accused Rajesh Kumar Kohli provided documents to Atish Pathak, ADM for processing and that accused Rajesh Kumar Kohli approved the claim of Rs.1,61,500/ in favour of M/s Santoshi Chemicals on the basis of false, forged & bogus documents. The proprietor of M/s Santoshi Chemical was accused Ashok Kumar.
15. That the accused Ashok Kumar, received the claim amount through cheque No.78755 and the amount was deposited in the account No.4995 and that accused Rakesh Modgil, proprietor of M/s Recovery India International, who was appointed as Recovery Agent deposited the paltry recovery CBI vs. Rajesh Kohli & Ors. 7 of 87 pages 8 CBI case . No.20/11 amount of Rs.9558/ through banker's cheque, which was got issued by accused, Ashok Kumar, without actually recovering the money from the alleged carrier.
16. That the accused Ashok Kumar, submitted the false documents and raised claim bill before NIC Ltd., DOX, New Delhi.
17. All the accused persons, thus, are alleged to have committed offences punishable, under section 120(B) read with sections 420, 467, 468, 471, IPC and section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988.
18. Further, during the period 19971998, at Delhi, and other places, accused Rajesh Kohli, being a public servant in the capacity of Divisional Manager, NIC Ltd., Divisional OfficeX, New Delhi, by use of illegal means and abusing his official position, induced NIC, DOX and sanctioned claim amount of Rs.1,61,500/, in favour of M/s Santoshi Chemicals on the basis of false, forged and bogus documents and thereby enabled accused Ashok Kumar, Proprietor of M/s Santoshi Chemicals to obtain pecuniary CBI vs. Rajesh Kohli & Ors. 8 of 87 pages 9 CBI case . No.20/11 advantage to the tune of Rs.1,61,500/ and corresponding loss to the National Insurance Corporation Ltd (NIC Ltd.), Divisional OfficeX, New Delhi. The accused, thus, is alleged to have committed an offence punishable under section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988.
19. Further, during the aforesaid period, at Delhi, and other places accused Ashok Kumar, dishonestly induced DOX to sanction insurance claim of Rs.1,61,500/ in favour of M/s Santoshi Chemicals on the basis of false, bogus & forged documents i.e. invoice, survey report, G. R. etc. and received a cheque of claim amount, which was credited in A/C No. 4995 of M/s Santoshi Chemicals of which he was the Proprietor. He, thus, is alleged to have committed an offence, punishable under section 420 IPC.
20. Further, during the aforesaid period at Delhi and other places, accused Ashok Kumar, fraudulently used false, forged and bogus documents i.e. invoice, G. R. Survey Report, etc. as genuine for the purpose of cheating, knowing fully well that those documents were forged, false and bogus. Accused, Ashok Kumar, thus, is alleged to CBI vs. Rajesh Kohli & Ors. 9 of 87 pages 10 CBI case . No.20/11 have committed an offence, punishable under section 471 read with 467 and 468 IPC.
21. Further, during the aforesaid period at Delhi and other places, accused Rakesh Modgil was appointed as Recovery Agent being the proprietor of M/s Recovery India International Ltd. and that he submitted false and bogus recovery amount of Rs.9,558/, without actually effecting any recovery from the carrier. The said accused, thus, is alleged to have committed an offence punishable, under section 468 IPC.
22. Further, during the aforesaid period at Delhi and other places, accused Pramod Kumar Gupta was appointed as surveyor being proprietor of M/s P. Gupta and Company and he submitted false, forged, fabricated and bogus survey report, without carrying out the survey relating to the alleged claim of M/s Santoshi Chemical, Delhi. Accused Pramod Kumar Gupta, thus, is alleged to have committed an offence, punishable under section 468 IPC.
23. Primafacie, offence under section 120B read with sections 420, 467, 468, 471 IPC and section 13(2) read with section CBI vs. Rajesh Kohli & Ors. 10 of 87 pages 11 CBI case . No.20/11 13(1)(d) of Prevention of Corruption Act, 1988, was made out, against all the accused persons herein and substantive offences under section 13(2) read with section 13(1)(d) Prevention of Corruption Act, 1988, in addition, against accused Rajesh Kumar Kohli, under sections 420 and 471 read with sections 467 & 468 IPC against accused Ashok Kumar, under section 468 IPC against accused persons namely, Pramod Kumar Gupta and Rakesh Modgil were made out.
24. Charge, accordingly, was framed against the accused persons, to which, they pleaded not guilty and claimed trial.
25. The prosecution, in order to substantiate its claim and contentions, examined as many as 20 witnesses, in all.
26. Thereafter, the accused persons were examined under section 313 Cr. P.C.
27. Defence has also preferred to examine two witnesses, including accused Rajesh Kumar Kohli, in support of their contentions.
CBI vs. Rajesh Kohli & Ors. 11 of 87 pages 12 CBI case . No.20/11
28. The prosecution, has contended that the case of the prosecution has been squarely proved, in view of the documents, circumstances and other material that has appeared on record. That the prosecution evidence has supported and proved the prosecution version beyond any pale of doubt.
29. On behalf of the defence, on the other hand, it has been stated that the prosecution has failed to prove its case.
30. On behalf of the defence, some written arguments have also been filed, which have been placed on the record.
31. At the very outset, it is to be noted that there is no dispute over the propositions of law enunciated in the case law, mentioned in the written submissions. However, none of the contentions and law help or support the accused persons, in any manner, whatsoever.
32. I have carefully gone through the entire relevant material appearing on record and have given considered thought to the same. I have also considered the rival arguments that CBI vs. Rajesh Kohli & Ors. 12 of 87 pages 13 CBI case . No.20/11 have been advanced, at the bar. My findings are as under:
33. PW1, Shri A. K. Seth is retired Vigilance Officer in National Insurance Company Ltd., who deposed that he conducted enquiry in six claim cases in respect of the fraudulent marine claims in Divisional OfficeX and sent his Investigation Report to CVO at Head Office, Vigilance Department, Calcutta. He identified his signatures at point A on his report and proved the same as Ex.PW1/A. He further deposed that he had examined the Marin Claim file No. 351000/2143/97/98/29-R452 of M/s Santoshi Chemicals, which has been proved as Ex. PW1/B.
34. PW2, Shri Anil Kumar Tiwari, was Administrative Officer in Vigilance Department in NIC at that time, who assisted the PW1Shri A. K. Seth in the investigation of the marine claims and also identified his signatures at point B on the report, which has been proved as Ex. PW 1/A.
35. PW Shri Krutivas Mahapatra, Chief Vigilance Officer, NIC was examined as PW3. He deposed that he examined the Investigation Report dated 28.9.1999 submitted by PW1A. K. Seth and found that six false marine claims amounting CBI vs. Rajesh Kohli & Ors. 13 of 87 pages 14 CBI case . No.20/11 to Rs.15,93,568/ were settled in the Division X (Division X at the relevant time was headed by accused Rajesh Kumar Kohli). He further deposed that after getting approval, he made complaint to the CBI, which has been proved as Ex. PW 3/1.
36. PW4, Sh. Visheshwar Nath, who is a public witness, deposed that he worked under the employment of the accused Rajesh Kumar Kohli and he used to bring tea and refreshment, etc. for the visitor of the accused Rajesh Kumar Kohli. That he also used to go out for receipt and delivery of post on behalf of the accused Rajesh Kumar Kohli. During his testimony, he identified the accused Rajesh Kumar Kohli correctly. He further deposed that in the year 1999, he became Insurance Agent for Division No. 10 of National Insurance Company Ltd., having Agency No.10080 and a Saving Bank Account was opened in Asaf Ali Branch, Bank of Baroda. He further deposed that an initial amount of Rs.500/ for opening that Saving Account was paid by the accused Rajesh Kumar Kohli. That he used to deposit and withdraw the money from the said Saving Account and after withdrawal of money, the same was handed over by him to the accused.
CBI vs. Rajesh Kohli & Ors. 14 of 87 pages 15 CBI case . No.20/11
37. PW4 has further deposed that he used to withdraw cheque amount from the bank and hand over it either to accused Rajesh Kohli or in his absence, to Vinod Bhutani as was instructed by accused Rajesh Kohli.
38. PW4 has further deposed that on the instructions of accused Rajesh Kohli, he had opened another bank account in Jeevan Bharti Building Branch of Canara Bank. That subsequently, their office was shifted from Asaf Ali Road to 54 Hanuman Road, in the beginning or probably by the end of year 1996. That the cheques which were issued in his name were of amount of Rs.15,000/, Rs. 18,000/ and 20,000/ and some were of lesser amounts. That accused Rajesh Kohli had asked him 23 times to issue a blank cheque but he had not obliged them.
39. PW4 has further deposed that in Bank of Baroda, Asaf Ali Branch, his saving bank account number was 30645 and in Canara bank, his account no. was 28415. He has further deposed that he had withdrawn a sum of Rs. One Lakh and odd amount out of the aforesaid two accounts, which he handed over to accused Rajesh Kohli. He has further CBI vs. Rajesh Kohli & Ors. 15 of 87 pages 16 CBI case . No.20/11 deposed that he was submitting income tax returns regularly, since 1999.
40. PW4 has further deposed that he had handed over form no. 16A, in respect of B.N. Tiwari, copy of which is Ex.PW4/1 to CBI, which was issued to him from his office, bearing signatures of accused Rajesh Kohli at pt. A, which has been duly identified by the witness. He has further deposed that commission voucher, in respect of B.N. Tiwari, which is Ex.PW4/2, was filled by him, having his signatures and that when the same was filled, a cheque was issued in his favour.
41. PW5, Sh. Amiya Kumar, has deposed that in the year 1981, he was Assistant Administrative Officer in the National Insurance Company. He has deposed in detail about the procedure, which ought to have been followed by the competent authority for passing the marine claim.
42. PW6, Sh. Jagat Singh was posted as Senior Manager in the Indian Overseas Bank on 01.05.2001. He has proved the letter, dated 16.05.2002, copy of which is proved as Ex.PW6/A. The said letter was addressed to Sh. Alok Mittal, CBI vs. Rajesh Kohli & Ors. 16 of 87 pages 17 CBI case . No.20/11 SP, CBI, bearing his signatures at pt. A, which have been duly identified by the witness. He has also identified the signatures of Sh. K.K. Soni, the then Chief Manager on the said letter, which contained the details of four cheques.
43. PW7, Sh. P. K. Aggarwal deposed that in February, 2001, he was posted in the Vigilance Department of National Insurance Company Ltd., having its office at Jeevan Bharti Building, Parliament Street, New Delhi. He has deposed that on 08.02.01, he had handed over six claim files to the Investigating Officer at its office at Lok Nayak Bhawan, New Delhi, which have been proved as Ex.PW1/C,collectively, vide seizure memo, on which he has duly identified his signatures at pt. A, copy of which has been proved as Ex.PW7/A (running into two pages).
44. PW8, Sh. Deepak Choudhary was Assistant Administrative Officer in DOX, in the year 2001. He has deposed that he had joined as Assistant Administrative Officer on 15.04.98. That in the year 1998, accused Rajesh Kumar Kohli was the Incharge Divisional Manager and he remained Incharge in the department till August or September, 1998 and thereafter, resigned.
CBI vs. Rajesh Kohli & Ors. 17 of 87 pages 18 CBI case . No.20/11
45. PW8 has further deposed that he was looking after the accounts department since his joining and his duties included the issuance of receipts for premium recovered and to disburse the payments, approved by competent authority. That he used to sign the cheques of the company as authorized representative and he used to counter sign the receipts, issued by the cashier, who made payment of premium wise to the company. That he also used to finalize the accounts of the company with the help of other departments.
46. He has further deposed that receipt no. 2594, dated 25.09.98, contained in file of M/s Santoshi Chemicals, which is Ex.PW11/A, was prepared by Sh. A. K. Tandon, cashier. The witness has identified his own signatures as well as that of Sh. A.K. Tondan at pts. A & B, respectively, on the said receipt. He has further deposed that amount of Rs.9558/ was received as recovery, in this case from the carrier by M/s Recovery India International (owned by accused Rakesh Modgil).
47. PW8 has further deposed in detail about the procedure for CBI vs. Rajesh Kohli & Ors. 18 of 87 pages 19 CBI case . No.20/11 issuance of receipt in their department.
48. PW8 has further proved the statement of commission, copy of which is Ex.PW8/A, vide which, commission was paid to the agent on the premium of the insured. The said statement bears the signatures of Sh. Amiya Kumar at pt. A and initial of the PW8 at pt. B, which have been duly identified by the witness. He has further deposed that the name of the agent was Sh. B.N. Tiwari.
49. PW8 has further deposed that file, Ex.PW1/C, pertaining to M/s Santoshi Chemicals contained the copies of the documents except the power of attorney, which was given to the tracer or recovery agent for effecting the recovery.
50. PW8 has further deposed that V.K. Bhutani was the Accounts Officer, prior to him. That the underwriting documents included proposal letter/proposal form, copy of premium receipt, copy of policy document, the correspondence, relating to accepting the insurance and pre dispatch inspection, if any, and that the underwriter was the person, who had accepted and issued the policy. CBI vs. Rajesh Kohli & Ors. 19 of 87 pages 20 CBI case . No.20/11
51. PW8 has further deposed about the sum assured in respect of M/s Santoshi Chemicals.
52. On being asked specifically, about Open Policy, PW8 has deposed that Open Policy is issued to a person on the basis of a turnover and he is supposed to give the declaration for each & every transaction to the insurance company for insuring the same, under open policy and declarations are to be given compulsorily, within a particular period as stipulated, within the policy itself. He has further deposed that if the sum assured is exhausted, then no declaration is adjusted. He has further deposed that the underwriting means booking of insurance business and before booking to check the business and to see its viability. He has further deposed that the underwriting dockets are not available in each of the six files. Therefore, it is evident that section 64 VB of Insurance Act was not duly complied with.
53. PW9, Shri P. R. Rastogi is an independent witness, who deposed that he was doing the business of property dealing for the last 20 years in the name and style of M/s Shilpi Properties at Shop No.1 DDA Mini Market, New CBI vs. Rajesh Kohli & Ors. 20 of 87 pages 21 CBI case . No.20/11 Moti Nagar, New Delhi. He further deposed that in the year 1995, one flat No. 304, Kanchan House Karampura Commercial complex having an area of around 300 Sq. feet., was given to M/s Wellcrop, which left the said office/flat in the year 199697. He also deposed that thereafter, the said property was purchased by one Shri Abhinav Priyadarshni Chauhan and he has not seen any Sign Board or any office of M/s Santoshi Chemicals running in the said premises from the year 1996 to 1999. According to this witness, therefore, M/s Santoshi Chemicals did not exist at the given address.
54. PW10, Shri Surender Kumar was the Official Surveyor (Motor) for National Insurance Co., Oriental Insurance Co. and New India Insurance Company. He deposed that he had purchased the Flat No. 304, Kanchan House, Karampura Commercial Complex, New Delhi in the year 1991 and sold the same in the year 1997. He further deposed that he had let out the said flat to one M/s Well Crop Pesticides. He further deposed that he had not let out the said premises to M/s Santoshi Chemicals till he owned the said flat. His version also, thus, corroborates the version of the prosecution, regarding non existence of CBI vs. Rajesh Kohli & Ors. 21 of 87 pages 22 CBI case . No.20/11 M/s Santoshi Chemicals at the given address.
55. PW11, Shri Mohan Mehto is a postman, who was posted at Nangloi Post Office. He deposed that Adhyapak Nagar was under his jurisdiction and he has not seen any Transport Company by the name of Shri Durga Carrier at 105A, Adhyapak Nagar, Nangloi, Delhi and also never heard about the same. This indicates that Shree Durga Carrier, transport company, did not exist at the given address.
56. PW12 B. S. Bisht is from the CBI, Economic Wing, New Delhi, who remained posted there from 2000 to 2004. He deposed that he had assisted IO, Shri R.P. Kaushal, Additional SP and had recorded the statement of Shri Mohan Mehto and Surinder Kumar, P. R. Rastogi and Sushant Rastogi correctly. He also deposed that he investigated the existence or nonexistence of Santoshi Chemicals Ltd. and he concluded that the said firm did not exist at the address, given in the papers.
57. PW, Shri Satish Kumar Mukhi was examined as PW 13.
He was posted as Special Assistant in the Punjab National CBI vs. Rajesh Kohli & Ors. 22 of 87 pages 23 CBI case . No.20/11 Bank, Tri Nagar. During his testimony, he identified the signatures of Shri R. K. Jain, the then Manager of Tri Nagar Branch of PNB, at point A, which has been proved as Ex. PW13/A and deposed that vide this letter, Ex.PW13/A, certified copy of the statement of account No. 4995, Ex. PW 13/B, of Santoshi Chemicals were forwarded to Inspector, Jyoti Kumar, Inspector, CBI.
58. PW13 further identified the signatures and seal of Shri R. K. Jain, at point A and B on the Statement of Account of Current Account No.4995, which is proved as Ex. PW 13/C and the said account was closed by making cash payment of Rs.4,971/ to the account holder.
59. PW, Shri Rohtash Lal, Special Assistant Incharge of S. B. Accounts, Bank of Baroda, Asaf Ali Road, was examined as PW 14, who deposed that PW Shri Bisheshwar Nath Tiwari was having a Saving Bank Account in his branch. He further deposed that he had handed over the documents concerning SB Account No. 30645 of Shri Bisheshwar Nath Tiwari, such as Specimen Signatures Card and Statement of Account, to the CBI.
CBI vs. Rajesh Kohli & Ors. 23 of 87 pages 24 CBI case . No.20/11
60. PW15, Shri Shiv Charan is a public witness, who is resident of A96, Adhyapak Nagar, Najafgarh Road, Nangloi, Delhi. He deposed that there was no Transport Company in the name of Sri Durga Carriers at 105, Adhyapak Nagar, Nangloi, Delhi. After PW 15 was declared hostile by the prosecution, he was cross examined by Ld. Sr. PP for the CBI. In crossexamination, this witness clearly accepted and admitted that one Parveen Kochar was the owner of A105, Adhyapak Nagar, Nangloi, Delhi.
61. PW16, Shri Gian Chand Gupta is another public witness, who is resident of premises No.3/11, Shiv Ram Park, Nangloi, Delhi. He deposed that at the premises No. 3/7, Shiv Ram Park, earlier one Praveen Kochhar was running a STD shop and he had taken that shop and used to sit there. He further deposed that there was no firm in the name of M/s Baba Nanak Associates or Santoshi Chemicals which used to work from 3/7 Shiv Ram Park, Nangloi, Delhi during the year 199798 or at present (when he was examined).
62. PW17, Shri S. K. Angural is a formal witness. He was CBI vs. Rajesh Kohli & Ors. 24 of 87 pages 25 CBI case . No.20/11 posted as Assistant Manager, Union Bank of India, B 43, South Extn. Part1, New Delhi, during the period July, 2001 to August, 2004. He deposed that he had handed over certain documents to the CBI vide letter dated 18.11.12 of his bank, on which he identified the signatures of Shri R. C. Dhawan, the then Branch Manager at point A, which has been proved as Ex. PW17/A. Vide the said letter, he handed over the documents, such as, Account Opening Form, Ex. PW17/B, Specimen Signatures Card of current account no. 28059 of M/s Recovery India International, Ex. PW17/C and certified copy of Statement of current A/c, Ex. PW17/D, to the CBI. He deposed that the said account was not operated after 12.11.2002.
63. PW18, Sh. R. P. Kaushal is the Investigating Officer of this case. He has deposed that during the period from 2002 to 2006, he was posted as Additional, Superintendent of Police, CBI, EOWI, New Delhi. He has further deposed that the present case was handed over to him by Sh. Jyoti Kumar, the then Deputy Superintendent of Police, CBI, for further investigation.
64. PW18 has further deposed that during the course of CBI vs. Rajesh Kohli & Ors. 25 of 87 pages 26 CBI case . No.20/11 investigation, he had collected relevant documents, examined witnesses and took the specimen handwriting of the accused persons and sent them to CFSL for expert's opinion. He further deposed that during investigation, SI Smt. Rekha Sangwan, Inspector B. S. Bisht, Inspector B. M. Pandit had also assisted him. He further deposed that after completion of the investigation, he had filed the charge sheet in this case on 27.1.2003.
65. PW18 further deposed that he had obtained the specimen writing of Ashok Kumar, marked as S1 to S8 in the presence of Independent witness, Prabhat Kumar Aggarwal,AO, NIC, which have been proved as Ex. PW 18/1 to Ex. PW 18/8 and Ex. PW18/9 to Ex. PW 18/19. He deposed that he had also received list of claims of the party with details of the surveyor, survey fee, etc, and details of 6 marine claims files, from NIC, which have been proved as Ex. PW 18/21 & Ex. PW18/20 respectively.
66. He further deposed that vide seizure memo dated 17.9.2002, which he proved as Ex.PW18/22, he received claim disbursement voucher Ex. PW 18/23, Commission Voucher Ex. PW 4/2, Statement of Accounts - Ex. PW CBI vs. Rajesh Kohli & Ors. 26 of 87 pages 27 CBI case . No.20/11 18/24, Form 16 A of Shri B. N. Tiwari - Ex. PW 4/1, letter dated 19.12.2002 with details of 6 insured claims from NIC. He deposed that he had also sent the documents marked Q1 to A139, S1 to S92 and A1 to A75 for comparison and expert's opinion to Director CFSL, New Delhi, vide letter dated 9.12.2002 through Shri Alok Mittal, SP, EOWI, which has been proved as Ex. PW18/27, during his testimony.
67. PW18 also proved the seizure memo dated 11.9.2002 vide which, he seized the documents from Inder Prakash Girdhar, Sr. Manager, PNB, Dev Nagar, New Delhi. During his testimony, he duly identified his signatures at point A and that of Mr. I P Girdhar at point B on the said seizure memo and proved the same as PW 18/28. He further deposed that through the said seizure memo, Ex. PW 18/28, Payinslip was also seized and the same has been proved as Ex. PW 18/29.
68. PW18 has further deposed that Expert's Opinion was received through a forwarding letter dated 03.04.03, which has been proved as Ex. PW 18/30. On the said Expert's Opinion, he identified the signatures of Shri N. K. CBI vs. Rajesh Kohli & Ors. 27 of 87 pages 28 CBI case . No.20/11 Aggarwal, Sr. Scientific Officer at point A and proved the same as Ex.PW18/31.
69. He further deposed that vide seizure memo, already Ex.
PW 18/28, pay in slip dated 24.7.1998 and Pay Order for Rs. 8050/ were seized and the same have been proved as Ex. PW 18/32 and Ex. PW 18/33.
70. PW18 has further deposed that he had received the letter dated 3.12.2002 of Shri S. Roy, Astt. Manager, NIC in respect of submission of original papers by him. The said letter has been proved as Ex. PW 18/34.
71. PW 19 Shri Hitesh C. Mehta is another public witness. He deposed that in the year 199698, he was doing the chemical business in the name of Leo Chem Plast Pvt. in Mumbai and he never had business relation with Santoshi Chemicals, New Delhi. He further deposed that the goods mentioned in the documents, Mark 19/A & Mark 19/B, were never supplied by him to Santoshi Chemicals, 304, Kanchan House, New Delhi 15. He further deposed that the said documents neither bear his signatures nor that of any of his official. His testimony indicates clearly that the CBI vs. Rajesh Kohli & Ors. 28 of 87 pages 29 CBI case . No.20/11 claimant used forged and fabricated documents, stated above, along with his claim.
72. PW20, Sh. Jyoti Kumar, retired Deputy SP, was the first Investigating Officer of this case. He deposed that the investigation of the present case was entrusted to him on 23.1.2001 vide FIR, on which he identified the signature of the then SP, Shri Rajender Prasad at point A and proved the same as Ex. PW 20/A.
73. He has further deposed that during the course of investigation, he seized various relevant documents and recorded the statements of few witnesses. He further deposed that he seized the six claim files pertaining to six various firms, vide seizure memo dated 8.2.2001, which has already been proved as Ex. PW7/1, on which he duly identified his signatures at point B and that of Shri P. K. Aggarwal, from whom the documents were seized by him, at point A. He deposed that Statements of Account of Santoshi Chemicals, CA A/c No. : 4995 was sent to him from Punjab National Bank vide letter, Ex.PW13/A and that the investigation of the present case was transferred to Shri R. P. Kaushal, the then SP, as he was transferred to CBI vs. Rajesh Kohli & Ors. 29 of 87 pages 30 CBI case . No.20/11 ACB, CBI, Delhi.
74. Now, I come to the version put forward by the defence witnesses.
75. DW1, Sh. B.K. Sachdeva was posted as Regional Manager in NIC. He has proved the Claim Procedural Manual of NIC as Ex.DW1/A, consisting of 119 pages. He has deposed that the said rule book was mandatory for processing and settling the claims like of which was in question.
76. In cross examination, DW1 has admitted that the competent authority, who was empowered to approve the claim, had to see the recommendations of the officers and other staff members and in case of variations, had to use his wisdom, before approving the claim and that if it was found to be noncomplied with the requirements, he could have deputed a investigator for further investigation. CBI vs. Rajesh Kohli & Ors. 30 of 87 pages 31 CBI case . No.20/11
77. DW1 has agreed to the suggestion that it was the primary duty of the authority, passing the claim to ensure that no bogus or false claim was passed and that to achieve this end, he was required to scrutinize all the documents and reports, submitted by the subordinates, carefully and meticulously.
78. DW1 has further deposed that at the relevant time, he and accused Rajesh Kumar Kohli were the officers at the same level at Regional Office. That he was posted in Vigilance Department whereas accused Rajesh Kumar Kohli was posted in the Marine Department.
79. DW1 has admitted that 20 years of job profile experience of accused Rajesh Kumar Kohli could have enabled him to distinguish between bogus and genuine claim, while processing the claims in question and that the said experience was sufficient to equip him to find out whether his subordinates were discharging the duties diligently, while processing the claims in question.
CBI vs. Rajesh Kohli & Ors. 31 of 87 pages 32 CBI case . No.20/11
80. DW1 has further admitted that it was duty of the Divisional Manager to ensure that his subordinates function as per rules and honestly, while processing the claims.
81. DW1 has further admitted that an insured could not be assigned the job of a surveyor, tracer or recovery agent, in a given claim.
82. DW1 has further admitted that if FIR had been lodged then it was the duty of the claim processing and passing authority to see the FIR and not the investigation report. That he had no personal knowledge of this case.
83. DW1 has further admitted that the recovery agent was entitled to deposit the amount with NIC only in the case of actual recovery and not in the case of no recovery. He has further admitted that in no case, the recovery agent could deposit the money from his own CBI vs. Rajesh Kohli & Ors. 32 of 87 pages 33 CBI case . No.20/11 account, without recovering it actually from the concerned party.
84. DW1 has further deposed that there were other circulars also, governing the marine insurance, which were applicable at that time. He, however, did not produce them for the reasons best known to him.
85. In any case, his testimony does not help the defence, in any manner, whatsoever. On the contrary, it supports and corroborates the version of the prosecution.
86. Accused Rajesh Kumar Kohli has examined himself as DW2. He has deposed that he had resigned from the company and was discharged from the service on 30.09.1998, vide discharge letter, Ex.DW3/1.
87. DW2 has further deposed that he never met co accused, Ashok Kumar, however, he had interactions with co accused Pramod Kumar Gupta as he was CBI vs. Rajesh Kohli & Ors. 33 of 87 pages 34 CBI case . No.20/11 empaneled service provider of the company and had dealings with Division X, in the past.
88. DW2 has further deposed that PW B.N. Tiwari, was recruited in their company as an agent somewhere in the year 1995 on the recommendations of his Jija, who was also an employee of Stationery Department of NIC. That the said PW, B. N. Tiwari procured business for them and in return, was paid commission for the premium, procured by him. The deposition of PW B.N. Tiwari as against the accused persons, therefore, has been strengthened as natural and truthful.
89. DW2 has proved the proposal form of the NIC, which has been exhibited as Ex.DW2/2.
90. DW2 has admitted that survey in the present case was conducted by accused P.K. Gupta, who was licensed surveyor from IRDA and was legally competent to conduct the survey, in question. That he was on the CBI vs. Rajesh Kohli & Ors. 34 of 87 pages 35 CBI case . No.20/11 panel of DivisionX, which was finalized by Regional office.
91. DW2 has further admitted that PW B.N. Tiwari was appointed by him as agent of the company. He has deposed that out of the six claims (passed by him in which he is facing trial before this court), five had been booked under his agency. The deposition of PW B.N. Tiwari, therefore, is natural, as against the accused persons.
92. DW2 has further admitted that the documents, Ex.PW19/A and Ex.PW19/B (both photocopies of claim bill, available at pages no. 22 & 24 of file, Ex.PW1/C) and Ex.PW11/DA, were received by him directly and were handed over to Sh. Atish Pathak, the then Assistant DM, for processing. He also admitted that except Ex.PW11/DA, rest of the four documents, were photocopies.
93. DW2 has admitted in his cross examination that no CBI vs. Rajesh Kohli & Ors. 35 of 87 pages 36 CBI case . No.20/11 documents have been tick marked on the copy of the letter at page 30 in file, Ex.PW1/C. This shows that there was not even a casual scrutiny at his end, which in turn, suggest that approval of claim was pre decided as a part of criminal conspiracy, alleged in this case.
94. DW2 has further admitted that as per record, M/s Recovery India International was deputed/appointed as recovery agent, in this case. Admittedly, it is the version of the defence that co accused Rakesh Modgil of Recovery India International, could not locate/trace the transporter.
95. Further, admittedly, a cheque/bankers cheque in question was deposited in NIC, as recovery amount.
96. DW2 has further admitted that he had marked the letter at page no. 2 of file, Ex.PW1/C to Atish Pathak.
97. DW2 has admitted that letter dated 30.06.98 at page CBI vs. Rajesh Kohli & Ors. 36 of 87 pages 37 CBI case . No.20/11 39 of the file, Ex.PW1/C, did not contain receipt stamp of office. He has further admitted that letter at page 17 of file, Ex.PW1/C in CC no. 24/11, was marked by him to Mr. Atish Pathak. He has further admitted that the document at page 19 of the aforesaid file, Ex.PW1/C, was considered at the time of passing of the claim, which did not bear the stamp & date of receipt section nor it indicated, who received the said letter in DOX.
98. Both the defence witnesses have rather reinforced the version given by the prosecution. They have not brought out any thing that either contradict the prosecution's case or establish the innocence of the accused persons.
99. The prosecution has, therefore, established in this case that :
(a) M/s Leo Dye Chem had never sent any consignment to the insured. That the documents used in this regard are thus, false, forged and fabricated. The consignor shown was false and bogus.
CBI vs. Rajesh Kohli & Ors. 37 of 87 pages 38 CBI case . No.20/11
(b) Transporter M/s Shree Durga Carriers was not found at the given address and was non existent. In fact, insured had shown false transporter at his own address.
(c) Accused Ashok Kumar was found to be the owner of the premises, the address of which was given as that of the transporter, Shree Durga Carriers. The claimant and transporter were same.
(d) The insured company is owned by one Ashok Kumar Kochar, having bank account with Punjab National Bank, Tri Nagar, showing different address. The claimant, thus, had all fraudulent mind from the very beginning.
(e) Mr. Ashok Kumar could not produce any document in support of his claim, during investigation.
(f) Rakesh Modgil could not locate the address of the Transporter. Still, he deposited/caused to be deposited recovery with NIC Ltd through a banker's cheque.
(g) The pay order for recovery was handed over to accused Rakesh Modgil by accused Rajesh Kumar Kohli and then he deposited the same in the office. That the said cheque, admittedly, was got issued by accused Ashok Kumar from the bank. That the recovery amount, which was a paltry sum (being only around 5 per cent of the claim amount CBI vs. Rajesh Kohli & Ors. 38 of 87 pages 39 CBI case . No.20/11 sanctioned) was falsely deposited as a cover up of the whole misdeed.
(h) The provisions of Claim Procedural Manual, Ex.DW1/A were grossly flouted by accused Rajesh Kumar Kohli as he neither insisted for all the documents nor assigned any reason in writing for dispensing any of the document to be filed by the claimant.
100. Further the record available show that:
1.The Claim Form is not available in the claim File H Ex. PW 1/C. H 2. The damage Certificate is not available in claim file Ex. PW 1/C.
101. The marine insurance claim procedural manual duly proved as Ex.DW1/A by the defence itself and not disputed by the prosecution provides the following salient provisions, which were grossly flouted in this case:
"............the claim settling authority should use his discretion by recording his reasons, in detail.
CBI vs. Rajesh Kohli & Ors. 39 of 87 pages 40 CBI case . No.20/11
1. Intimation of Claim (1.1) Intimation of claim is normally received from claimant by letter, telegram or even by phone, followed by a letter. Each intimation should be recorded in writing, confirming the message and date and time of its receipt.
(1.2) On receipt of a claim intimation, the dealing office should; (a) ascertain whether insurance policy is in existence and
(b) allot a claim number
(c) prepare a claim docket filling in all the details
(d) make an entry in claim intimation register in serial order.
2. OPEN DELIVERY FROM CARRIERS/THIRD PARTY (2.1) In order to establish that the goods have been lost or damaged whilst in the custody of carriers, claimants have an obligation to apply for open assessment delivery from the carriers. Failure to do so would prejudice the insured's right of recovery under the policy.
(2.2) Where the written application for open/survey delivery is refused by the carriers and a survey is disallowed by them, the claimant shall be asked to take delivery under a written protest after survey by a surveyor deputed by the dealing office. (2.3) In case of nondelivery/short delivery, the claimant shall be asked to obtain and send to the dealing office CBI vs. Rajesh Kohli & Ors. 40 of 87 pages 41 CBI case . No.20/11 either a nondelivery/short delivery certificate from the Port Authorities or the original Railway Receipt (RR), Lorry Way Bill (LWB) or Air Consignment Note duly endorsed by the carriers, confirming nondelivery/short delivery or a separate nondelivery/short delivery certificate, as the case may be.
3. APPOINTMENT OF SURVEYOR 3.1 It is necessary to decide whether a survey of goods reported lost or damaged is to be arranged. 3.2 Claim exceeding Rs.20,000/ should be surveyed by a duly licensed surveyor.
3.6 In marine insurance unlike other classes of insurance, survey fee is initially paid by the claimant. The survey fee will be reimbursed to the claimant along with the claim amount, if the claim is admissible under the policy. This should be brought to the notice of the claimant whilst advising him about appointment of surveyor.
3.7 The dealing office shall also arrange for surveys 'without prejudice' on losses reported under policies issued by other policy issuing offices which are not under its jurisdiction. Thereafter, the dealing office shall process the entire claim upto final settlement keeping the policy issuing office informed of all developments. 3.10 Normally, the survey report should be finalized within three weeks. The surveyor shall be instructed to CBI vs. Rajesh Kohli & Ors. 41 of 87 pages 42 CBI case . No.20/11 keep the dealing office informed of the progress of his work in case of delay. He shall alert dealing office immediately if it is known that a third party is responsible for the loss so that arrangements for a joint survey with the third party's representative can be made. 3.11 If the loss is a major one, the surveyor shall be asked to submit one or more interim reports. 3.12 The dealing office should keep in touch with the surveyors throughout.
4. DOCUMENTS REQUIRED FOR SETTLEMENT OF ALL CLAIMS.
4.1 Documents required for settlement of all claims are as under:
i. Original insurance policy/declaration under the open policy, duly endorsed by the insured/claimant. ii. Original or a signed copy of sales invoice along with packing list.
iii. Copy of Bill of Lading (in case of sea voyage).
iv. Copy of Bill of Entry.
v. In case of General Average, Counter Guarantee or
original Cash Deposit Receipt with Letter of Transfer. vi. Letter of Subrogation duly stamped (only where recovery from carriers is possible). vii. Special Power of Attorney( wherever applicable). viii. Lost Over Board Certificate where loss has taken place during loading.
ix. In case of shortlanding/nondelivery of complete CBI vs. Rajesh Kohli & Ors. 42 of 87 pages 43 CBI case . No.20/11 assignment:
Original contract of affreightment duly endorsed in our favour viz. Railway Receipt, Transport Receipt, full set of Bill of Lading, Air Consignment Note and Postal Receipt etc as applicable. The original contract of affreightment should be endorsed by the carrier confirming shortlanding/nondelivery of the entire consignment by them or with a separate shortlanding/non delivery certificate. x. In case of partial nondelivery/shortlanding:
Nondelivery and/or landed but missing certificate from the carriers or Port Trust. xi. In case of partial loss or damage:
a. Open assessment report by the carrier and/or b. Survey Report of independent survey.
c. Claim form (as per Annexure'A')
d. Claim bill (where necessary).
xii. Copies of correspondence exchanged with the
carriers along with registered AD cards (wherever recovery from the carriers is possible). xiii. Banker's Certificate confirming non receipt of export proceeds in India in an approved manner (in case of claims under export policies settled in India).
6.CLAIM SETTLEMENT ON DESPATCHES BY INLAND TRANSIT (RAILWAYS OR ROAD CARRIERS OR OTHER MODES OF TRANSIT FOR DESPATCHES WITHIN INDIA).
6.1 Short and Non Delivery 6.1.1 When a claim for short delivery or non delivery of a consignment is reported, consignees CBI vs. Rajesh Kohli & Ors. 43 of 87 pages 44 CBI case . No.20/11 should be advised to obtain signed certificate of the delivery authorities on the reverse of the Receipts certifying that the packages are not available for delivery or obtain a separate shortlanding or nondelivery certificate. The consignees should be requested to lodge a valued claim on the carriers by Registered Post Acknowledgment Due within a period as set out in 6.2.2 below. Tracing agents should also be engaged, whenever necessary.
9. GENERAL 9.9 All documents must be called for in one go and not in piecemeal.
11. DISCRETION TO BE USED BY DIVISIONAL OFFICE 11.1 The dealing office has to use its discretion judiciously after calling for necessary explanation from the claimant. Reasons for using discretions shall be duly recorded by the person concerned.
11.2 Where the right of recovery from the carriers/third party is prejudiced the claim amount payable shall be restricted to not exceeding 75 % of the assessed loss other than in respect of excepted Articles as per Indian Railway Act or Carriers Act, where the amount payable shall be the assessed loss less the recovery amount prejudiced.
102. It is well settled that criminal conspiracy is hatched in CBI vs. Rajesh Kohli & Ors. 44 of 87 pages 45 CBI case . No.20/11 secrecy and no direct evidence may be possible.
Circumstantial evidence can always prove it.
103. In the case law reported as State of M. P. V Sheetla Sahai, 2009, Cr. LJ 4436 SC, Hon'ble Supreme Court has held that :
"Often criminal conspiracy is hatched in secrecy and for poving the offence substantiat direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence."
104. In the case law reported as Chaman Lal Vs. State of Punjab, AIR 2009 SC 2972, Hon'ble Supreme Court has held that:
"Essence of conspiracy is unalwful combination and the complicity of the accused has to be decided after considering all the circumstances proved, before, during and after occurence. Agreement between the conspirators may also be proved by necessary implication."
105. In the case law reported as R. K. Dalmia V The Delhi Administration, AIR 1962 SC 1821, Hon'ble Supreme Court has held that :
CBI vs. Rajesh Kohli & Ors. 45 of 87 pages 46 CBI case . No.20/11 "It is not necessary that each member of a conspiracy must know all the details of the conspiracy."
106. In the case law reported as Tribhuvan Nath Vs. State of Maharashtra, AIR 1973 SC P 450, Hon'ble Supreme Court has held that :
"Evidence of one accused can be used against the other accused to prove the existence of conspiracy under section 10 of the Evidence Act."
107. In the case law reported as AIR 1974 SC P 898, Hon'ble Supreme Court has held that :
"Even admission of one accused under section 10 of the Evidence Act, can be used against other accused to prove criminal conspiracy."
108. In the case law reported as Kehar Singh Vs. State AIR 1988 SC 1883, Hon'ble Supreme Court has held that :
"Action or statement made by one of the accused could be used as evidence against the other by Virtue of Section 10 of the Evidence Act."
109. It was held in the case law reported as AIR 2010 SC 3718 'Muriappan Vs. State of Tamil Nadu' that :
"Facts established should be consistent only with CBI vs. Rajesh Kohli & Ors. 46 of 87 pages 47 CBI case . No.20/11 the hypothesis of guilt of the accused. It does not mean that each and every hypothesis suggested by accused must be excluded by proved facts."
110. It was further held that :
"False and inconsistent defences taken by the accused can be taken as additional circumstance against him strengthening the chain of circumstances."
111. In the case law reported as Hashim (K) 2005 Cri LJ 143 (SC), the Hon'ble Supreme Court has held that "for an offence punishable under section 120B, the prosecution need not necessarily prove that the perpetrators expressly agree do to or cause to be done illegal act; the agreement may be proved by necessary implication".
112. In the case law reported as (2001) 4 Crimes 247 (SC), the Hon'ble Supreme Court has held that "to prove conspiracy, it is not necessary that there should be direct communication between each conspirer and every other but the criminal design alleged must be common to all".
113. It has been held in the case law reported as Firozuddin Basheeruddin (2001) 7 SCC 596 that CBI vs. Rajesh Kohli & Ors. 47 of 87 pages 48 CBI case . No.20/11 "the rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interest of security, a person may carry out his part of a conspiracy without even being informed of the identity of his coconspirators. An agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of what lies in their minds".
114. It was further observed in the aforesaid judgment that "Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions, any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each coconspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Thus conspirators are liable on agency theory for statements of co conspirators, just as they are for the overt acts and crimes committed by their confrers".
115. The survey Report dated 7.10.2007 on the face of it appears to be highly doubtful and manipulated. For example in schedule appended to the report, it is not known as to where from the invoice particulars have been imported as CBI vs. Rajesh Kohli & Ors. 48 of 87 pages 49 CBI case . No.20/11 the same are not as per Ex. PW19/A inasmuch as the surveyor has described bags 150 No. of 25 Kg each and 'High density of polythene Bags' on his own. In the invoice, Ex.PW19/A, total weight has been indicated and there is no mention of 'High density polythene Bags'. Further, somewhere partially wet bags have been shown as 70 bags and at other place as 50 bags. Still further, while assessing the value, the uniform discounted/salvage value at the rate of 40% for partially damaged as well as fully damaged bags has been taken. It does not appeal to logic or common sense, as no cogent basis appear in the survey report.
116. Further, the Survey Report does not contain the name of the representative of the insured before whom alleged survey was conducted nor it spells out as to from whom and from which Market and when and by what mode the enquires were made.
117. Further, the place at which goods were dispatched as per the survey report and where the survey was conducted has been shown as 11/23 Budh Vihar, Delhi. The place where the goods were to be delivered by the Carrier as per CBI vs. Rajesh Kohli & Ors. 49 of 87 pages 50 CBI case . No.20/11 GR, copy of which is Ex.PW19/B is 'Santoshi Chemicals New Delhi 15'. This address does not correspond to the aforesaid address given in the Survey Report on record in the claim file, Ex.PW1/C.
118. Further, the address given in copy of GR, Ex. PW 19/B, is 'Santoshi Chemicals, New Delhi 15' where delivery of goods was to be made by the Carrier, who was transporting goods from Mumbai. It is not understood how the carrier reached the place shown where goods were actually allegedly delivered,as per survey report.
119. The survey report is signed by Surveyor, accused Pramod Kumar Gupta, admittedly.
120. The consignment was dispatched, admittedly, in the last week of September, 1997 and was delivered in the last week of September,1997. It is common knowledge that it is not a rainy season. There is no whisper anywhere as to where and at what place, the bags got wet. All this shows that the projected story of the insured/surveyor was highly improbable and, therefore, false and concocted. The survey report which on the face of it is bogus ought to have CBI vs. Rajesh Kohli & Ors. 50 of 87 pages 51 CBI case . No.20/11 been thrown out while examining the claim.
121. Further, survey report shows that survey was held on 29.9.1997 whereas the claim note, Ex.PW3/D6, in para 18 shows that the date of appointment of surveyor was 03.10.1997. It clearly demonstrates the fraud. In case surveyor was appointed on 3.10.1997, how he could conduct survey prior to 3.10.1997 i.e. on 29.9.1997. It only speaks of the manipulation and fraud/cheating in pursuance to the alleged criminal conspiracy.
122. Further, Ex.PW3/D6 in item No. 20, gives estimated loss as Rs. two lakhs. It is not understood where from this figure was imported in the claim note, which, admittedly, was approved by the accused Rajesh Kumar Kohli, the then Divisional Manager.
123. The last premium as per Ex.PW3/D6 was received on 22.9.1997 whereas the loss is stated to have occurred on 27.9.1997 i.e. within a very short period. Manipulation planed, therefore, can be gravely raised.
124. The special features mentioned in Annexure - I attached CBI vs. Rajesh Kohli & Ors. 51 of 87 pages 52 CBI case . No.20/11 to the claim note Ex.PW3/D6 and admittedly signed by A1 shows contradictory & false statement. At some places 70 bags have been stated as totally wet and declared as total loss, whereas at other place the figure of 70 bags have been shown as partially wet. This is self contradictory. The fact that such a forged and fabricated survey report was presented and was accepted blindly itself shows criminal intention of the accused persons.
125. In file Ex. PW 1/C, at page 10, there is a copy of letter dated 23.9.1997 written by Santoshi Chemicals to Manager, NIC, Div. No. X, that they have dispatched Adipic Acid packed in 25 Kg Gunny bags, total 150 bags from Bombay to Delhi vide GR No. 3295 dated 23.9.1997 whereas the copy of the GR no. 3295 dated 23.9.1997 (i.e. Ex. PW 19/B at P 25 shows the senders name as Leo Dye Chem, B/176 Ghat Kopar, Industrial Estate, Mumbai.) The insured, therefore, was projecting falsehood from the beginning.
126. The insurance policy dated 22.9.1997 issued in this case and which is available at page 9 of the claim File Ex. PW 1/C shows particulars of GR No.3295 dated 23.8.1997, whereas GR No. 3295 is dated 23.9.1997. In any case how it CBI vs. Rajesh Kohli & Ors. 52 of 87 pages 53 CBI case . No.20/11 is that its particulars appear in the policy issued on 22.9.1997 that is before the date of issue of the GR on 23.9.1997.
127. The photographs without negatives appear on record of the claim file. Why negatives were not insisted for and how such unreliable photographs were readily relied upon?
128. The survey report does not mention that photographs were taken and were enclosed with the survey report. That being so, it is not short of a wonder as to how the photographs reached the claim file.
129. Ex. PW 6/DC is the cheque amount of claim of Rs.
1,61,500/ duly credited in PNB, Tri Nagar branch as is proved vide Ex. PW13/B. The address of 'Santoshi Chemicals' is shown as E3/7, Shiv Ram Park, Nangloi, New Delhi, which is different from which is given in the insurance policy and the GR. This speaks of the criminal mind of the claimant/insured, who is an accused Ashok Kumar, in this case.
130. Ex. PW 18/20 shows Recovery Agent, Recovery amount, CBI vs. Rajesh Kohli & Ors. 53 of 87 pages 54 CBI case . No.20/11 Surveyor & Recovery fee paid by NIC, etc. Recovery amount shown in this case is Rs.9558 by M/s Recovery India International vide cheque of PNB dated 24.7.1998.
131. Ex. PW 18/21 is the letter from NIC enclosing documents found missing in the six claims including the claim in the present case, in which, claim form & damage/shortage certificate was missing. How then the claim was passed, is not known.
132. Ex. PW 18/26 is the letter of Leo Dye Chem Ltd. April 5, 1999, stating that invoice No. 5499 dated 23.9.97 & 5547 dated 27.2.1998 in the name of Santoshi Chemicals through Shree Durga Carriers GR. No. 3295 & 2265 do not belong to them showing that the same were forged & fabricated & used by the accused persons.
133. Ex. PW 18/29 shows that draft of Rs.9558 on PNB was got issued by accused Ashok Kumar. This paltry sum was deposited as recovery amount in NIC Ltd. The recovery agent was accused Rakesh Modgil. The recovery agent, admittedly, neither filed a 'no recovery report' nor he returned the documents received in this case from the CBI vs. Rajesh Kohli & Ors. 54 of 87 pages 55 CBI case . No.20/11 NIC. The accused persons were all, therefore, acting in unison in pursuance to the alleged conspiracy.
134. In the report of Expert, Ex. PW 18/31signatures & handwriting of accused Rajesh Kumar Kohli & Pramod Kumar Gupta on admitted and disputed documents have been confirmed as same. The expert's report goes unchallenged on record.
135. In the case law reported as Murari Lal Vs. State of M. P., AIR 1980 SC 531, Hon'ble Supreme Court has held that :
"In cases where the reasons for the opinion are convincing and there is no reliable evidence through a doubt, the uncorroborated testimony of a handwriting expert may be accepted."
136. In the instant case, it is established by the prosecution that the consignor, Leo Dye Chem, Mumbai, actually did not send any consignment and the documents, preferred by the claimant, were forged and fabricated.
137. The consignee M/s Santoshi Chemicals, allegedly CBI vs. Rajesh Kohli & Ors. 55 of 87 pages 56 CBI case . No.20/11 having proprietor, accused Ashok Kumar, also did not exist at the given premises. The transporter, M/s Shree Durga Carrier also did not exist. Once it was shown by the prosecution that the above did not exist under section 106 Evidence Act, the burden was on the accused Ashok Kumar to show that it all existed as he had special knowledge and documents to show their existence. But he has miserably failed to show all this.
138. In the case law reported as Krishna Kumar Vs. UOI, AIR 1959 SC 1390, and in case Indore Municipal Corporation Vs. Caltex (India) Ltd, AIR 1991 SC 454, Hon'ble Supreme Court has held that :
"If the facts are within the knowledge of the accused, it is enough to establish facts which give rise to a suspicion and then by reason of Sec. 106 of the Evidence Act to throw the onus on him to prove his innocence."
139. The surveyor, accused no. 3, Pramod Kumar Gupta gave a false, forged and fabricated survey report. Admittedly, no tracer was appointed, in this case. CBI vs. Rajesh Kohli & Ors. 56 of 87 pages 57 CBI case . No.20/11
140. Recovery agent, accused no. 4, Rakesh Modgil deposited Rs.9,558/, as is evident from the receipt, issued to M/s Recovery India International by NIC, vide slip, Ex.PW18/29. The aforesaid cheque/pay order for Rs.9,558/ was prepared and signed by one, Ashok Kumar of M/s Shree Durga Carrier, E3/7, Shiv Ram Park, New Delhi, which shows that when Shree Durga Carrier was not in existence, the recovery agent was acting in pursuance to the criminal conspiracy. The amount of Rs.9,558/ does not constitute even 10 per cent of the claim amount i.e. of Rs.1,61,500/, which was paid to accused, Ashok Kumar by the NIC. Admittedly, the recovery agent, accused Rakesh Modgil did not file any report, stating that no recovery was effected, in this case. He neither returned the documents, given to him to effect the recovery, in this case. He has further not taken any action, admittedly, against any one, till the filing of this case and subsequently, to show that someone else deposited the recovery amount to NIC to falsely implicate him. CBI vs. Rajesh Kohli & Ors. 57 of 87 pages 58 CBI case . No.20/11 All this shows that he was actively involved in the crime.
141. Everything seems to have been manipulated, under the circumstances, to justify that the things were going on in a normal manner, whereas the gang of all the four accused persons combined and was operating to perpetrate the alleged offences of cheating, use of forged and fabricated documents etc, as alleged, in this case.
142. Regarding the offence of cheating, the Hon'ble Supreme Court has observed that "when a person gets an order by playing fraud upon the competent authority, such order cannot be sustained in the eyes of law as fraud unravels everything. Fraud and justice never dwell together. Fraud is an anathema to all equitable principles and any affair tained with fraud cannot be perpetuated or saved by the application of any equitable doctrine". {Inderjeet Singh Grewal vs. State of Punjab, 2011(4) RCR (criminal) 1(SC)}.
143. In the case law reported as Devender Kumar Singla vs. CBI vs. Rajesh Kohli & Ors. 58 of 87 pages 59 CBI case . No.20/11 Baldev Krishan Singla, 2004 Cri LJ 1774 (SC), the Hon'ble Supreme Court has observed the following points as essential ingredients to attract section 420 IPC:
1. Cheating;
2. Dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and
3. Mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under section
420."
144. In the case law reported as Kuldip Sharma, 2000, Cri LJ 1272(Del), it has been held by the Hon'ble High Court that 'Where an accused obtained payments from the Government of India by sending bills containing number of bogus railway receipts representing that the contracted goods had been booked and despatched under the bogus railway receipts mentioned in the bills and the false representation made by the appellants induced the Government to part with the money to satisfy those claims put forward by the appellants, the conviction of the appellants for the offence under section 420 was held sustainable'.
CBI vs. Rajesh Kohli & Ors. 59 of 87 pages 60 CBI case . No.20/11
145. In the case law reported as Ram Prakash Singh, AIR 1998 SC 296, the Hon'ble Supreme Court has held that 'Where the accused, a Development Officer in LIC, introduced false and fake insurance proposals to LIC with a view to earn promotion on the basis of inflated business, he was convicted under sections 420/511, 420/120B, 468 & 477 A'.
146. In the case law reported as AIR 2004 SC 3229, the Hon'ble Supreme Court has held that "For an offence under section 471, one of the necessary ingredients is fraudulent and dishonest use of the document as genuine. The act need not be both dishonest and fraudulent. The use of document as contemplated by section 471 must be voluntary one. For sustaining conviction under section 471, it is necessary for the prosecution to prove that accused knew or had reason to believe the document in question to be forged and this has to be adjudicated on the basis of materials and the finding recorded in that regard is factual".
147. From the above discussion, it is abundantly clear that all the accused persons entered into criminal conspiracy to cheat the NIC by making fraudulent and bogus claim, based upon false, forged and fabricated documents, which later were used by them, in this case.
CBI vs. Rajesh Kohli & Ors. 60 of 87 pages 61 CBI case . No.20/11
148. The defence has asserted that there were defects in the investigation. This contention too will not help them.
149. In the case law reported as 2007 Cri LJ 758(SC), it has been held by the Hon'ble Supreme Court that 'Defective investigation may discredit the prosecution, but prosecution evidence may not necessarily be discarded on the ground. If the evidence is otherwise reliable and trustworthy, the court may convict the accused. Reminiscence of investigating officer will not ipso facto weaken the case of the prosecution'.
150. In the case law reported as State vs. Santosh Kumar Singh, 2006(4) Crimes 782 (Del), the Hon'ble High Court has held that 'Courts should not be influenced by suspicious roles played by the investigation officer during investigation and criminal justice should not be made a casualty for wrongs committed by investigation officers.'
151. In the case law reported as Dhanraj Singh 2004 Cri LJ 1807 (SC), it has been held by the Hon'ble Supreme Court that CBI vs. Rajesh Kohli & Ors. 61 of 87 pages 62 CBI case . No.20/11 'In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to plying into the hands of the investigating officer if the investigation is designedly defectively. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. Then the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice'.
152. Under the circumstances, I have no hasitation in holding all the accused persons herein guilty of the offence, punishable under section 120B read with section 420, 467, 468, 471 IPC and section 13(2) read with 13(i)(d) of the Prevention of Corruption Act, 1988.
153. To attract provisions of section 13(i)(d) of the Prevention of Corruption Act, 1988, public servant should obtain for himself or any other person any valuable thing or pecuniary advantage (i) by corrupt or illegal means or (ii) CBI vs. Rajesh Kohli & Ors. 62 of 87 pages 63 CBI case . No.20/11 by abusing his position as a public servant or (iii) without any public interest.{R. Sai Bharathi vs. J. Jayalalitha (2004) 2 SCC 9}.
154. Accused Rajesh Kumar Kohli, admittedly was public servant, at the relevant time. He had while passing the fraudulent claim, in this case, has caused pecuniary benefit, without any public interest, to accused Ashok Kumar, to the extent of amount of claim Rs.1,61,500/, in this case, and corresponding loss to the NIC. He has, thus, criminally misconducted himself and is, therefore, held guilty of the offence, punishable under section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988.
155. Accused Rakesh Modgil committed the alleged guilt, by depositing or causing it to be deposited a sum of Rs. 9,558/, as fake recovery on forged and fabricated documents, in this case, especially, when the alleged transporter was non existent and he neither filed 'no recovery report' nor returned the documents to NIC. He is, therefore, also held guilty of the offence, punishable under section 468 IPC.
CBI vs. Rajesh Kohli & Ors. 63 of 87 pages 64 CBI case . No.20/11
156. Accused Pramod Kumar Gupta prepared and presented false, forged and fabricated survey report , in pursuance to the aforesaid criminal conspiracy. His report, on the face of it, is false, forged and fabricated and does not appeal to any reason or logic. He is, therefore, also held guilty of the alleged offence, punishable under section 468 IPC.
157. Accused Ashok Kumar, who preferred false claim using false, forged and fabricated documents as genuine and cheated the NIC Ltd of Rs.1,61,500/, is held guilty of the offences punishable under section 420 & 471 IPC, in addition.
158. All the accused persons are, accordingly, convicted.
159. Let the convicts be heard on the point of sentence, as prayed by them, on 30.11.2012.
Announced in the open court ( N. K. Kaushik ) on 20.11.2012 Special Judge, PC Act CBI Dwarka Courts, New Delhi.
CBI vs. Rajesh Kohli & Ors. 64 of 87 pages 65 CBI case . No.20/11 IN THE COURT OF SHRI N. K. KAUSHIK SPECIAL JUDGE (P C ACT) CBI, DWARKA COURTS, NEW DELHI CBI Case No. : 20/11 RC No. : 1(E)/2001/EOWI/New Delhi In the matter of : CBI Versus
1. Rajesh Kumar Kohli, The then Divisional Manager, National Insurance Company Ltd., DOX, New Delhi.
R/o 187, Pragati Apartment, Club Road, Paschim Vihar, New Delhi.
2. Ashok Kumar, S/o Sh. Madan Lal, R/o F1/34, Budh Vihar, Delhi41.
3. Pramod Kumar Gupta, S/o Shri Prakash Gupta, R/o AS16, Shiva Enclave, A4, Paschim Vihar, New Delhi63.
4. Rakesh Modgil, S/o Sh. Rameshwar, R/o : B6/A2, IIT Campus, POHauz khas, New Delhi.
...........Convicts CBI vs. Rajesh Kohli & Ors. 65 of 87 pages 66 CBI case . No.20/11 Date of Institution : 27.01.2003 Date on which judgment pronounced : 20.11.2012 Date on which order on sentence announced :
7.12.2012 O R D E R O N S E N T E N C E
1. By this order, I shall dispose off the contentions, raised on behalf of the parties, on the point of sentence.
2. In the present case, all the convicts have been convicted for the offence punishable under sections 120B read with sections 420, 467, 468 and 471 IPC and section 13 (2) read with section 13 (1)
(d) of the Prevention of Corruption Act, 1988.
Convict Rajesh Kumar Kohli has been convicted, in addition, for the offence punishable under section 13(2) read with section 13(1) (d) of the Prevention of Corruption Act, 1988. Convict Ashok Kumar has been convicted, in addition, for CBI vs. Rajesh Kohli & Ors. 66 of 87 pages 67 CBI case . No.20/11 the offences punishable under sections 420 and 471 IPC. Convicts Pramod Kumar Gupta and Rakesh Modgil, both, have been convicted, in addition, for the offence punishable under section 468 IPC.
3. It has been strongly contended on behalf of the State by the Ld. Sr. PP for the CBI that this is a corruption case, in which, the convicts have been convicted, as they were operating as an organised racket and have caused illegal huge pecuniary loss to the National Insurance Company Ltd., Govt. of India Undertaking. That they have cheated the said company to the tune of Rs. 1,61,500/. They have, therefore, caused loss to the public exchequer of the said amount. It has further been stated that the amount, to the extent to which the Government has been cheated, was not a small amount as the case pertains to the period much prior to the year 2000, when it was CBI vs. Rajesh Kohli & Ors. 67 of 87 pages 68 CBI case . No.20/11 quite a sizable and fat amount.
4. The State has further contended that the maximum prescribed substantive punishment with fine be handed over to all the convicts, so that enough and clear message goes to one and all and especially to the potential offenders, who are in the waiting to commit such like frauds so that the punishment act as a deterrence and the intent of the legislature is fulfilled.
5. Convict Rajesh Kumar Kohli, has prayed that a lenient view be taken on the ground that the present case dates back to the year 2000. That he has faced a trial for all these years. That he had been regularly attending the Court. That he has an old mother and wife to support. That he had, of late, taken to practice law for quite sometime and that no useful purpose will be served by keeping him away from the society, in CBI vs. Rajesh Kohli & Ors. 68 of 87 pages 69 CBI case . No.20/11 incarceration. He has sought probation as well.
6. Convict Ashok Kumar has prayed for a lenient view on the ground that he is the sole earning member in his family. That he has an old father of 90 years of age and that no one is there in the family to look after him.
7. On behalf of the convict Pramod Kumar Gupta, it has been prayed that a lenient view be taken on the ground that he is the only earning member in his family and that he had undergone some operation in the past.
8. Convict Rakesh Modgil contended that he is the sole earning member in his family and has two children. That he is living in a rented accommodation and that no one is there to look after his family. He, therefore, prayed for a lenient view.
CBI vs. Rajesh Kohli & Ors. 69 of 87 pages 70 CBI case . No.20/11
9. All the convicts have, thus, prayed for taking a lenient view. They all have, further, prayed for release on probation.
10. The contentions, raised by the the convicts, have met stiff and very strong opposition on behalf of the State. It has been urged that convict Rajesh Kumar Kohli, the then public servant, is a convict before this Court, in as many as six different cases as he had illegally and dishonestly awarded false and fraudulent insurance claims exceeding Rs.15 lakhs that too in the year 19981999, when it was quite a big sum. It has, further, been stated on behalf of the State that being a public servant at the relevant time, convict Rajesh Kumar Kohli acted corruptly with full vigour, in false claims, one after the other. It has, therefore, been urged that this convict is a habitual offender and deserves maximum punishment.
CBI vs. Rajesh Kohli & Ors. 70 of 87 pages 71 CBI case . No.20/11
11. Regarding the convict Ashok Kumar, it is stated that he was the beneficiary of the fraudulent claim. That he pocketed the claim money, in this case, to which he was not legally entitled to. He has successfully cheated the National Insurance Company Ltd. alongwith other convicts. That he is not entitled to any mercy or compassion.
12. Regarding the convicts Pramod Kumar Gupta and Rakesh Modgil, it is stated that in pursuance to the systematic and wellplanned conspiracy, they forged reports/documents and acted in connivance with other convicts in this case.
13. It is further urged on behalf of the State that most of the pleas taken by the convicts are routine and stock pleas and in any case, in the case under the Prevention of Corruption Act, these pleas taken are not considered as mitigating circumstances. CBI vs. Rajesh Kohli & Ors. 71 of 87 pages 72 CBI case . No.20/11 It has, therefore, been prayed that exemplary punishment be awarded to the convicts herein.
14. On behalf of the CBI, following case law have been cited:
(i) State V A Parthiban, AIR 2007 Supreme Court 51,
(ii) State V Ratan Lal Arora, AIR 2004 Supreme Court 2364 &
(iii) Ram Narain Poply Vs. CBI, AIR 2003 Supreme Court 2748
(iv) State of J & K Vs. Vinay Nanda, AIR 2001 SC 611.
(v) State Vs. Rattan Lal Arora (2004) 4 SCC 590.
15. On behalf of the convicts, following case law have been cited:
(i) State of UP V Sanjay Kumar, (2012) 8 Supreme Court Cases 537,
(ii) Kamaldin & Ors V. CBI, Crl. M.C. 1401/2010,(High Court of Delhi)
(iii) State of J & K Vs. Vinay Nanda, Manu/SC/0028/2001
16. At the very outset, it is observed that there is no quarrel over the settled propositions of law discussed in the aforesaid case law, cited by the parties.
CBI vs. Rajesh Kohli & Ors. 72 of 87 pages 73 CBI case . No.20/11
17. The Hon'ble Apex Court in the case of State of Rajasthan Vs. Vinod Kumar, decided on, 18th May, 2012 (Criminal Appeal No. 1887) reiterated the law laid down in State of J&K Vs. Vinay Nanda, AIR 2001 SC P 611, and observed that superannuation of the convict and the pendency of criminal trial for over a period of time cannot be treated a special reason to reduce the sentence.
18. In the same appeal quoting 'M B Joshi Vs. State of Maharashtra, AIR 2001 SC 147' the Hon'ble Apex Court observed that:
"It is the defect of the system that
longevity of the cases tried under the
Prevention of Corruption Act is too
lengthy. If that is regarded as sufficient for reducing the sentence mandated by the Parliament legislative exercise would stand defeated."
CBI vs. Rajesh Kohli & Ors. 73 of 87 pages 74 CBI case . No.20/11
19. It was observed by the Hon'ble Supreme Court in the case reported as State of J & K Vs. Vinay Nanda, AIR 2001 SC P 611, that :
"Corruption at any level, by any person, of any magnitude, is condemnable, which cannot be ignored by the Judicial Courts, when proved. No leniency is required to be shown in proved cases under the Prevention of Corruption Act which itself treats the offences under it of a special nature to be treated differently than the general penal offences. The convicts of the offences under the Act are to be dealt with heavy hand and deterrant rod. No populous or sympathetic approach is needed in such cases."
20. It was further observed by the Hon'ble Supreme Court in the aforesaid case that :
"Accused facing trial since long;
amount allegedly misappropriated already been deposited; undergone CBI vs. Rajesh Kohli & Ors. 74 of 87 pages 75 CBI case . No.20/11 departmental punishment; only bread earner in family; wife and three children's dependence on him are the circumstance which do not constitute 'special reasons'."
21. It was observed by the Hon'ble High Court in the cases reported as Jai Bhagwan Vs. State (NCT of Delhi), 2008 150 DLT 46 (Delhi) and Ravinder Kumar Arora Vs. CBI Manu/DE/8816/2007 (Delhi) , that :
"It is a normal thing that 'trial' of the person is considered a period of 'agony' undergone by him. But we tend to forget the agony of the society and the complainant who dared lodge the complaint. The entire purpose of the legislature of sentencing the offenders stands defeated and that is the one reason that wages of corruption are considered more attractive in this country. The person caught is not always a firsttimer corrupt. He CBI vs. Rajesh Kohli & Ors. 75 of 87 pages 76 CBI case . No.20/11 may have been indulging into corrupt activities / practices for a long number of years. It is to his advantage that the trial is prolonged. He spends a fraction of amount, earned by corrupt practices on litigation and professionals to see that ultimately he makes Criminal Justice System a laughing stock. In this process, the entire legislative purpose of punishing a corrupt stands defeated.
22. It was held by the Hon'ble Supreme Court in the case reported as State of M. P. Vs. Shambhu Dayal Nagar, (2006) 8 SCC P 693, that :
"Corruption by public servant has become gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. Large scale corruption retards the nation building activities and everyone has to suffer on that count."
CBI vs. Rajesh Kohli & Ors. 76 of 87 pages 77 CBI case . No.20/11
23. It was observed by the Hon'ble High Court in the case reported as AIR 1961, Mysore P 49, that:
"Infliction of a lenient sentence will defeat the purpose of the P. C. Act."
24. It was observed by the Hon'ble Apex Court in the case reported as State of T. N Vs. Kaliaperumal, (2005) 12 SCC 473 and State Vs. Ratan Lal Arora, (2004) 4 SCC 590 that :
"Section 18 of the Probation of Offenders Act specifically bars the offence under PC Act from the purview of the Act."
25. The convicts, therefore, cannot be enlarged on probation in this case relating to serious offences.
26. It was observed by the Hon'ble Supreme Court in the case reported as State of M. P. Vs. Ram Singh, AIR 2000 SC 870, that:
"Corruption in a civilised society is CBI vs. Rajesh Kohli & Ors. 77 of 87 pages 78 CBI case . No.20/11 a disease like cancer, which if not detected in time is sure to maliganise the polity of the country leading to disastrous consequences.
It is termed as plague which is not
only contagious but if not
controlled spreads like a fire in a
jungle. Its virus is compared with
HIV leading to AIDS being
incurable. The sociopolitical
system exposed to such a dreaded
communicable disease is likely to
crumble under its own weight.
Corruption is opposed to democracy
and social order, being not only
anti people, but aimed and targeted
against them. It affects the economy and destroys the cultural heritage."
27. Further, it was observed by the Hon'ble Supreme Court in the case law reported as Ankush Maruti Shinde Vs State of Maharashtra, AIR 2009 SC 2609 that:
" The social impact of the crime e.g. CBI vs. Rajesh Kohli & Ors. 78 of 87 pages 79 CBI case . No.20/11 where it relates to offences against women, decoity, kidnapping, misappropriation of public money,
treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest cannot be lost sight of and per se require exemplary treatment. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats."
28. It was held by Hon'ble Supreme Court in the case reported as Mohd. A Hussain Vs. Asstt. Collector, Custom (Prevention) Ahmedabad, AIR 1998 SC 2143, that :
"If a given transaction constitutes CBI vs. Rajesh Kohli & Ors. 79 of 87 pages 80 CBI case . No.20/11 two offences under two enactments generally, it is wrong to have consecutive sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different. Sentencing judge should try to ensure that the totality of the sentences is correct in the light of all the circumstances of the case."
"In arriving at an appropriate
sentence, the court must consider,
and some times reject, many
factors. The court must 'recognise, learn to control and exclude' many diverse data. It is a balancing act and tortuous process to ensure reasoned sentence."
29. It was further held by Hon'ble Supreme Court in the case reported as A. B. Bhaskara Rao vs. Inspector of Police, CBI, Vishakapatnam, 2011(4) RCR (Criminal) 290 (SC) that :
CBI vs. Rajesh Kohli & Ors. 80 of 87 pages 81 CBI case . No.20/11 "in the case of corruption by public servant, long delay in disposal, quantum of amount of bribe and that the delinquent lost his job due to conviction etc., are not to be taken as mitigating circumstances for reduction of the sentence".
30. In the case of Siddarama and Ors. Vs. State of Karnataka, 2006 IV AD (Cri.) (SC) 78, it was held that:
"undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society can no longer endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."
31. It was further held in the case law reported as Kishan Dayal vs. State, 1958 Raj LW 596 that:
CBI vs. Rajesh Kohli & Ors. 81 of 87 pages 82 CBI case . No.20/11 " A corrupt official is a menace to the society and far from helping in the proper functioning of the Government and implementing of the laws, brings the Government and the society at large into disrepute. It is through the agency of the public servants that the policy of the Legislature as well as of the Government is implemented. It is through the public servants that crimes are detected and offenders are brought to book. It is through strictly honest and incorruptible public servants that the welfare of the society can be ensured. If such public servants are open to corruption and coerce the public into paying them illegal gratification, the whole structure of the society would be upset and the policy of the Government and of the Legislature, howsoever, beneficial it may be, would gravely suffer. A public servant, therefore, once he is found to be guilty of accepting or CBI vs. Rajesh Kohli & Ors. 82 of 87 pages 83 CBI case . No.20/11 obtaining illegal gratification, deserves no soft corner or indulgence from the Courts of Law."
32. It was held in the case reported as Madhukar Bhaskarrao Joshi vs. State of Maharashtra, 2001 Cr. LJ 175(SC): that:
"When corruption was sought to be eliminated from the polity all possible stringent measures are to be adopted within the bounds of law.
One such measure is to provide condign punishment. Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was precisely the reason why the sentence was fixed as seven years and directed that even if the said period of imprisonment need not be given, the sentence shall not be less than the imprisonment for CBI vs. Rajesh Kohli & Ors. 83 of 87 pages 84 CBI case . No.20/11 one year. Such a legislative insistence is reflection of Parliament's resolve to meet corruption cases with very strong hand to give signals of deterrence as the most pivotal feature of sentencing of corrupt public servants. All public servants have to face very serious consequences. If on the other hand any public servant is given the impression that if he succeeds in protracting the proceedings that would help him to have the advantage of getting a very light sentence even if the case ends in conviction, its fallout would afford incentive to public servants who were susceptible to corruption to indulge in such nefarious practices with immunity. Increasing the fine after reducing the imprisonment to a nominal period can also defeat the purpose as the corrupt public servants could easily raise the fine amount through the same means."
CBI vs. Rajesh Kohli & Ors. 84 of 87 pages 85 CBI case . No.20/11
33. I have thoroughly and carefully considered the rival contentions. I have also examined the asserted mitigating and aggravating circumstances, pointed out by the parties. I am of the considered opinion that considering all the aspects of the matter, the following sentence shall be appropriate to meet the ends of justice and as such is awarded:
(i) All the four convicts herein are awarded sentence of three years rigorous imprisonment and a fine of Rs.5000/, in default, one month simple imprisonment, each, for the offence punishable under section 120B IPC.
(ii) Convict Ashok Kumar, who fraudulently cheated the National Insurance Company Ltd., to the tune of Rs.1,61,500/, is sentenced to four years rigorous imprisonment besides a fine of Rs.
2 lakh, in default, six months simple CBI vs. Rajesh Kohli & Ors. 85 of 87 pages 86 CBI case . No.20/11 imprisonment for the offence punishable under section 420 IPC. For the offence punishable under section 471 IPC, convict Ashok Kumar shall suffer sentence of rigorous imprisonment for three years and six months and a fine of Rs. 10,000/, in default, two months simple imprisonment.
(iii) Convicts Pramod Kumar Gupta and Rakesh Modgil are awarded sentence of rigorous imprisonment for three years and six months and a fine of Rs.10,000/ each, in default, two months simple imprisonment for the offence punishable under sections 468 IPC.
(iv) Convict Rajesh Kumar Kohli, who is convict in several cases, is hereby awarded a sentence of four years rigorous imprisonment and a fine of Rs.25,000/, in default, three months simple imprisonment, for the offence punishable under section 13 (2) read with section 13 (1) (d) of the CBI vs. Rajesh Kohli & Ors. 86 of 87 pages 87 CBI case . No.20/11 the Prevention of Corruption Act, 1988.
34. From out of the fine imposed upon convict Ashok Kumar, if realised, a sum of Rs. Two Lakhs be paid to the complainant, NIC Ltd as compensation.
35. All the aforesaid sentences shall run concurrently.
36. Benefit of section 428 Cr.P.C. is extended to the convicts.
37. A copy of the judgment and order on sentence be given to all the convicts, free of cost, forthwith.
38. File be consigned to record room.
Announced in the open court ( N. K. Kaushik ) on 7th December, 2012 Special Judge (PC Act) CBI Dwarka Courts CBI vs. Rajesh Kohli & Ors. 87 of 87 pages