Meghalaya High Court
Shri Dhiresh Kr. Chakraborty vs The Central Bureau Of Investigation on 10 December, 2013
RESERVED
THE HIGH COURT OF MEGHALAYA
Crl Appeal No. 5 of 2012
Shri Dhiresh Kr. Chakraborty, son of Shri Dhirendra Kr
Chakraborty, resident of Delhi, 3/B 118 NE, Old Rajendar Nagar,
PS Rajendar Nagar, New Delhi.
....... Appellant
-Versus-
The Central Bureau of Investigation, Oakland, Shillong-1, East
Khasi Hills Meghalaya
....... Respondent
AND Crl Appeal No. 6 of 2012 Shri Joharlal Das, s/o (L) ML Das, r/o Lachit Nagar Main Road, Gauhati, District Kamrup, Assam ....... Appellant
-Versus-
The Central Bureau of Investigation, Oakland, Shillong-1, East Khasi Hills Meghalaya ....... Respondent Smti S Bhattacharjee, Advocate, present for the appellant (in Crl. Appeal No. 5 of 2012) Smti PDB Baruah, Advocate, present for the appellant (in Crl Appeal No. 6 of 2012) Shri VK Jindal, Sr. Advocate, assisted by Ms QB Lamare, Advocate, present for the CBI.
Date of hearing 3rd Dec and 4th Dec, 2013 Date of Judgment and Order 10th December, 2013 2 JUDGMENT AND ORDER ORAL: HON'BLE PRAFULLA C. PANT, CHIEF JUSTICE Heard.
2. Both these appeals are directed against judgment and order dated 20.09.2012/25.09.2012, passed by Special Judge (CBI), Shillong in CBI Case No. 2 of 1994, whereby said Court has convicted the accused/appellant Dhiresh Kr. Chakraborty under Section 120(B) and 420 IPC, and the accused/appellant Joharlal Das under
Section 120(B), 420 and 468 IPC. The Trial Court (Special Judge, CBI, Shillong) has sentenced the accused/appellant Dhiresh Kr. Chakraborty to a simple imprisonment for a period of three years and directed to pay fine of Rs. 50,000/- under Section 420 IPC, and simple imprisonment for a period of six months under Section 120(B) IPC. Said Court has sentenced the accused/appellant Joharlal Das to simple imprisonment for a period of three years and directed to pay fine of Rs.
50,000/- under Section 420 IPC, and simple imprisonment for a period of two years and directed to pay Rs. 50,000/- under Section 468 IPC, and simple 3 imprisonment for a period of six months under Section 120(B) IPC.
3. Heard learned counsel for the parties and perused the lower Court record.
4. Briefly stated prosecution story is that co-accused Manohar Lal Kalra (since died), was posted as Deputy General Manager with New Bank of India, New Delhi, in the year 1988-89, who entered into a criminal conspiracy with M/s Tricon Wood Products Pvt. Ltd., Shillong (of which accused DK Chakraborty was one of the Directors) along other accused, and fraudulently obtained total loan of Rs. 35.42 lakhs by committing forgery and thereby cheated the Bank. It is alleged that the loan was got sanctioned by the Bank Officers ML Kalra (since died) and Raj Gopalchari Narayan (since died) in connivance with the other accused without verifying the veracity of the project proposed by the debtors. The Central Bureau of Investigation (for short CBI) registered Crime No. RC.19(A)/92-SHG on 30.06.1992 in respect of offences punishable under Section 120(B), 420, 468 and 471 IPC and Section 13(2) read with Section 13(1)(d) of Prevention 4 of Corruption Act, 1988. After investigation, the Investigating Officer found that the loan application of M/s Tricon Wood Products Pvt. Ltd., Shillong was processed in a hurried manner without verification of veracity of the facts mentioned in the project report/loan proposal. The co-accused ML Kalra sanctioned the loan beyond his power. It was also found that in furtherance with criminal conspiracy with the Directors of M/s Tricon Wood Products Pvt. Ltd., Shillong, the loan was disbursed flouting all norms of the Bank. Investigation also revealed that a firm in the name and style of M/s Sun Engineering Enterprises (which was a non existent firm) and whose account was operated by accused Johar Das, was shown to have supplied the goods to the debtor company on the basis of which loan of Rs. 15 lakhs (part of the loan) was deposited in its fictitious Account, on 25/26.08.1988. The accused/appellant Joharlal Das/Johar Das withdrew the amount on the same date with the help of other co- accused Santosh Kr. Agarwal (absconder) and Rakesh Mittal (since died) who got said amount transferred by opening new Account No. 1786 and Account No. 1788 with Indian Overseas Bank, Ballyganj Branch, Kolkata. The Investigating Officer further found that actually the 5 accused/appellant Joharlal Das was senior Accountant with Accountant General Officer, Shillong, and part of the sum (Rs. 57,000/-) for alleged supply of building materials to debtor company was transferred to his Account in State Bank of India, Branch Shillong. On conclusion of investigation, the charge-sheet was filed against the accused ML Kalra (since died) Raj Gopalachari Narayan (since died) DK Chakraborty (accused/appellant) Santosh Kr Agarwal (absconder) and Joharlal Das @ Johar Das (accused/appellant).
5. After giving necessary copies under Section 207 CrPC, the trial court framed charge on 11.10.1996 against the accused/appellant DK Chakraborty and RK Mittal in respect of offences punishable under Section 120(B) IPC and under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, 420 IPC and 471 IPC. As against the accused/appellant Joharlal Das charge of offences punishable under Section 120(B) and 468 IPC was framed. Both the accused pleaded not guilty and claimed to be tried.
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6. On this, prosecution got examined PW1- Shri Syamlal Dey (Section Officer of Accountant General Office, Shillong), PW 2- Rupak Ranjan Roy Choudhury (Office Superintendent of Office of Registrar of Companies, NE Region, Shillong), PW 3- Sitangshu R Dey (Supervisor in the Office of Accountant General, Shillong), PW 4- S Chakravarty (Postman) who found debtor company's Office closed, PW 5- EJ Syngkon (who was temporarily appointed as General Manager of debtor company), PW 6- Santano Das (Officer of State Bank of India, Shillong, wherein accused Joharlal Das had his one Account), PW 7- Subir Kumar Das (Deputy Manager of Indian Overseas Bank, Calcutta), PW 8- Sopan Kumar Mukherjee (Senior manager of Indian Overseas Bank, Shillong), PW 9- Anthony Hansdak (Accountant of State Bank of India, Shillong), PW 10- CCM Mihsil (the then Executive Officer of Municipal Board, Shillong), PW 11- DK Chakraborty (not present accused/appellant who proved that Account No. 1787 was opened in the name of Sun Engineering Enterprises operated by Johar Das), PW 12 - Pankaj Kr Bose (another Postman, who found the address of Sun Engineering Enterprises as fake one), PW 13 - Chandranath Samant (yet another Postman on the 7 abovementioned fact), PW 14 - Rashid Jilani (Chairman and Managing Director of Punjab National Bank who accorded the sanction for prosecution for ML Kalra), PW 15 - Bhim Bahadur Chetri (Postman), PW 16 - Sunil Deb Biswas (Establishment Officer of Accountant General Office, Shillong), PW 17 - Asim Kumar Bose (Manager of Indian Overseas Bank, Shillong), PW 18 - BM Mittal (General Manager of Punjab National Bank, New Delhi, who gave sanction for prosecution for R Narayanan), PW 19 - Denabrata Das (Deputy Manager of State Bank of India, Shillong), PW 20 - R Rajasekaran (Manager of New Bank of India, New Delhi), PW 21 - Biswambar Purkayastha (another Officer of New Bank of India, Guwahati), PW 22 - Stanley Rynjah (Secretary Executive Committee of Khasi Hills Autonomous District Council), PW 23 - APS Sareen (a clerk of New Bank of India, New Delhi), PW 24 - L Jyrwa (Law Secretary to the Govt. of Meghalaya), PW 25 - V Balasubramanian (another employee of New Bank of India, New Delhi), PW 26 - Ravi Kumar Sabharwal (Manager Scale-II of New Bank of India, New Delhi, who was initially one of the named accused in FIR), PW 27 - Inder Paul Mahendru (the then Assistant General Manager of New Bank of India, New Delhi, who 8 was also initially one of the named accused in FIR), PW 28 - UK Murarka (Manager New India Bank, Canaught Place, New Delhi), PW 29 - RT Bhutia (Senior Manager Punjab National Bank, Guwahati, who seized one of the demand drafts), PW 30 - Debendranath Pegu (Registrar of Companies, Shillong), PW 31 - Ramesh Chandra Gandhi (Manager of Punjab National Bank, New Delhi), PW 32 - Sushil Kumar Sarkar (employee of Indian Overseas Bank, Kolkata), PW 33 - Bounty M Shylla (Govt. employee MIDC Ltd, Shillong), PW 34 - KF Rangad (Retd. Govt. servant), PW 35 - JK Pangasa (Stenographer of Overseas Branch of New Bank of India, New Delhi), PW 36 - PK Sharma (Manager of New Bank of India, Overseas Branch, New Delhi), PW 37 - Ramesh Kumar Gupta (Deputy Chief of Development Banking Department, Rajendra Nagar, New Delhi, who proved the print of typewriter seized by the CBI), PW 38 - RK Hazrati (Manager of Vigilance Department, New Bank of India, New Delhi, who proved seizure memo dated 22.1.1993), PW 39 - SC Gupta (Govt. Handwriting Expert), PW 40 - Vijay Kumar Manchanda (Officer of Vigilance Department, New Bank of India, New Delhi), PW 41 - Prem Kumar Mehta (Manager, Punjab National Bank, New Delhi), PW 42 - RK Sharma 9 (Manager, Vigilance Department, New Bank of India, New Delhi, in whose presence CBI took specimen signature of the accused), PW 43 - I. Rasul (Valuer of Plant and Machinery), PW 44 - Anil Kumar Jain (AGM Punjab National Bank), PW 45 - Himangshu Bhoshon Karmakar (Retd. Central Govt. employee), PW 46 - AK Jain, s/o AC Jain (retd. From Punjab National Bank), PW 47 - R Nambirajan, PW 48 - NS Kharayat (Inspector CBI) and PW 49 - GK Bora (retd. Bank employee).
7. Oral and documentary evidence was put to the accused persons on 14.10.2009 under Section 313 CrPC. No evidence in defence was adduced. Learned Special Judge, CBI, after hearing the parties found the accused DK Chakraborty guilty of charge of offences punishable under Section 120(B) and 420 IPC, and the accused Joharlal Das was found guilty of charge punishable under Section 120(B), 420 and 468 IPC under Section 468 IPC. After hearing on the sentence DK Chakraborty was sentenced to a simple imprisonment for a period of three years and directed to pay fine of Rs. 50,000/- under Section 420 IPC and simple imprisonment for a period of six months under Section 120(B) IPC, and accused 10 Joharlal Das was sentenced by said Court to simple imprisonment for a period of six months under Section 120(B) IPC, simple imprisonment for a period of three years and directed to pay fine of Rs. 50,000/- under Section 420 IPC, and simple imprisonment for a period of two years and directed to pay Rs. 50,000/- under Section 468 IPC and in default of fine, defaulter convict was directed to undergo further simple imprisonment for a period of one year. Aggrieved by the said impugned judgment and orders dated 20.09.2012/25.09.2012, these two appeals were filed separately by the two convicts. Other accused who are charge-sheeted, reported to have either died or absconded.
8. PW 1 - Shyamlal Kr. Dey, who was an employee of Office of the Accountant General, Shillong, has proved signature of the accused Joharlal Das on the leave applications Ext. 1, 2, 3 and 4 which were considered for comparison of his signatures by the Handwriting Expert. PW - 3 Sitangshu R Dey was Supervisor in the Office of the Accountant General, Shillong (for short AG), this witness has corroborated evidence adduced by PW 1- Shyamlal Dey.
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9. PW 2 - Rupak Ranjan Roy Choudhury, the then official of Office of Registrar Companies, North Eastern Region, Shillong, has proved Ext. 13 (Form No. 32) relating to M/s Tricon Wood Products Supply Ltd., Shillong, showing the appointment of Santosh Kumar Agarwal (absconder) and accused Dinesh Kumar Chakraborty as Directors of said Company. PW 5 - EJ Syngkon has stated that in 1989 he was appointed for a brief period of two months as General Manager of M/s Tricon Woods Product Ltd.
10. PW 6 - Santano Das, who was the Deputy Manager of State Bank of India, Shillong, has proved the statement of Account No. 2335 (Ext. 22) in the name of accused Joharlal Das. He has further told that an amount of Rs. 56,000/- were withdrawn by the Account holder on 03.08.1989 from his Account. PW 7 - Subir Kumar Das, who was posted with Indian Overseas Bank, Shillong has proved the seizure Memo dated 18.03.1993 (Ext. 23) relating to Current Account No. 542 of accused DK Chakraborty and SK Agarwal (absconder). PW 9 - Anthony Hansdak, was an Accountant of State Bank of 12 India who has stated that through Bank Draft No. 086399 (Ext. 32) Rs. 57,000/- were deposited in the Account of accused Johar Das. This witness has clarified in the cross-examination that Account holder Joharlal Das accused certified in connection with the draft that he and Johar Das, in whose name Bank Draft was prepared and are one and the same person.
11. PW 10 - CCM Mihsil, the then Chief Executive Officer, Shillong Municipal Board has stated that after verification from the Licensing Officer, it was found that Company, namely, M/s Sun Engineering Enterprises and M/s Tricoon Wood Products Pvt. Ltd. were found not in existence. PW 11 - DK Chakraborty (son of PC Chakraborty), not accused, has stated that a Current Account No. 1787 was opened in the name of M/s Sun Engineering Enterprises by Johar Das in Kolkata. He has proved the signatures in the form by which the Account was opened. The witness has further stated that the accused DK Chakraborty introduced and identified him in opening the Account. This witness has further stated that one Account (Ext. 38) was opened in the name of M/s Tricoon Wood Products under the signature of SK 13 Agarwal (absconder) and DK Chakraborty (accused). Number of said Account was 1788. He has also proved the amount of Rs. 2,18,000/- (part of loan) was deposited in said Account through Demand Draft No. 1/88 issued by the New Bank of India, Cannaught Place, New Delhi. He has also proved the statement of Account No. 1786 which was also in the name of M/s Tricon Wood Products Pvt. Ltd.
12. PW 12 - Pankaj Kr. Bose, a postman has stated that when he took a Registered letter in the name of M/s Sun Engineering Enterprises he found that there was no such company on the given address. PW 13 - Chandranath Samant, who was a postman has also given similar evidence in respect of another Registered letter regarding non existence of M/s Sun Engineering Enterprises 16/3 Ulta Danga Main Road, Calcutta.
13. PW 17 - Ashim Kumar Bose, who was a Manager of Indian Overseas Bank, Shillong, has stated that the Account No. 562 was opened in the name of M/s Sun Engineering Enterprises and in the said Account an amount of Rs. 2,29,000/- and Rs. 1,00,000/- were 14 deposited and withdrawn. He has also proved that Account No. 6016 was opened under the signature of Rakesh Mittal (since died) and accused DK Chakraborty who introduced him. He further stated that on 18.07.1989 an amount of Rs. 2,56,157.40 was deposited in his Account.
14. PW 20 - R Rajasekaran, the then Manager of New Bank of India, has stated that by violating the norms, loan in question granted to M/s Tricon Wood Products by ML Kalra (accused since died). PW 22- Stanley Rynjah, who was Secretary, Executive Committee, Khasi Hills Autonomous District Council, Shillong, has stated that in tribal areas non-tribals were not allowed to establish business without permission from the Khasi Hills Autonomous District Council which the M/s Tricon Wood products Pvt. Ltd. had not obtained.
15. PW 23 - APS Sareen, was an employee of New Bank of India has also stated that how various instalments of the loan were released in favour of M/s Tricon Wood Products Pvt. Ltd. of which accused DK Chakraborty was one of the Directors. He has also proved the signature of 15 DK Chakraborty in the loan transaction papers (Ext. 88, 89, 90, 91 and 92).
16. PW 25 - V Balasubramanian, was an employee of New Bank of India. He has proved the signatures of the Bank officials in Ext. 85 in connection with the loan transaction given to M/s Tricon Wood Products, and pointed out the irregularities committed in said transaction.
17. PW 26 - Ravi Kumar Sabharwal, was in-charge Chief Manager at the relevant point of time when the loan in question was sanctioned. This witness was named as accused in the FIR but after investigation no offence was said to have been made out against him and he was made witness. He has proved payment of Rs. 15,00,000/- in favour of M/s Sun Engineering Enterprises, Calcutta. But according to the witness, the same was done by the Bank under instructions from co-accused ML Kalra (since died).
18. PW 27 - Inder Paul Mahendru is one of those who was also made accused in the FIR but after investigation, 16 nothing was found to have been proved against him and he was made a witness. This witness was the Assistant General Manager of Regional Office of New Bank of India.
He stated that he knew DK Chakraborty (accused/appellant) Director of M/s Tricon Wood
Products Pvt. Ltd and recommended the loan application on the basis of the proposal, as DK Chakraborty (accused/appellant) owned a residential house in 266-A Rash Bihari Avenue, Kolkata valued at Rs. 40,00,000/-. He further stated that while making recommendation for the loan, he categorically mentioned conditions in Ext. 85, on which the loan could be sanctioned. But Condition No. 10 which was in his handwriting regarding an additional requirement of mortgage of the abovementioned property was scored off by someone at the latter stage. PW 28 - UK Murarka has also proved that many of the conditions for granting loan were not complied with. This witness who was a Manager of New Bank of India, Canaught Place, New Delhi proved signature of accused DK Chakraborty in Ext. 127 i.e. Account Opening Form relating to Account No. 5242 of M/s Tricon Wood Products. PW 29 - RT Bhutia, Senior 17 Manager of Punjab National Bank has only proved the seizure memo Ext. 139 and signature thereon.
19. PW 30 - Debendranath Pegu, Registrar of Companies, Shillong has proved the seizure memo dated 21.12.1992 (Ext. 140) by which the CBI seized the zerox copies of certificate incorporation of M/s Tricoon Wood Products and other related papers. PWs 31, 32, 33 and 34 are formal witnesses who have affirmed their evidence given by them in the connected Special Case No. 3/94. PW 35 - JK Pangasa, Steno/Typist of New Bank of India, Overseas Branch, Canaught Place, New Delhi has proved the specimen impression of typewriting machine in Exts. 144, 145, 146, 147, 148 and 149. PW 36- PK Sharma, Manager New Bank of India, Overseas Branch, Canaught Place, New Delhi has also corroborated the specimen Typewriting Machine No. H388714 and proved Ext. 150.
PW 37 - Ramesh Kumar Gupta, Deputy Chief Development Banking Department, New Delhi has proved seizure memo dated 01.02.1993 (Ext. 151) regarding seizure of the Remington Typewriting Machine No. 456377 and R-490304. PW 38 - RK Hazrati, Manager 18 Vigilance Department, New Delhi has proved seizure memo dated 22.1.1993 (Ext. 152).
20. PW 39 - SC Gupta, Retd. Govt. Examiner of Question and Account (an expert) has proved letter dated 29.03.1993 (Ext. 153) received from CBI and after examining the questioned documents and specimen, he submitted his opinion (Ext. 187). He also proved reasonings (Ext. 189) given by him in support of his opinion regarding signatures of accused DK Chakraborty and Joharlal Das.
21. PWs 40, 41 and 42 all are the witnesses and formal in nature. PW 43 - I Rasul is a Govt. Valuer of the property who assessed the actual market value of the machineries of M/s Tricon Wood Products Pvt. Ltd. situated in Village Mawit (near Shillong). PWs 44, 45, 46, 47, 48 and 49 have adduced formal evidence in this case.
22. Having gone through the entire record of the case as discussed above, I concur with the view taken by the Trial Court that the prosecution has successfully proved the charge of offence of conspiracy between the accused DK 19 Chakraborty and the accused Joharlal Das with some other accused to cheat New Bank of India by fraudulently obtaining the loan. This Court further concurs with the Trial Court that additional charge of forgery is proved against the accused Joharlal Das.
23. Learned counsel for the accused/appellant Joharlal Das argued that Johar Das who opened account for depositing Rs. 15 lakhs is not the person (Joharlal Das) who is an employee in the Office of the Accountant General, Shillong, who is facing the trial. On going through the evidence on record, this Court finds that the signature of Joharlal Das in the casual leave application and signature of Johar Das who opened the account, as per the Govt. Expert are of one and the same person. In this connection, placing a reliance in the case of Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964 SC 529, it is contended on behalf of the appellant that the evidence of the Expert is weak kind of evidence. Perusal of the said judgment shows that it was given the Testamentary Case where Private Expert was examined. In the present case, apart from the evidence of the Govt. Expert there is an important endorsement on the Bank 20 Draft No. 086399 (Ext. 32) in the name of Johar Das which was deposited in the Account of Joharlal Das in Account No. 2335 with the State Bank of India, Shillong Branch that Johar Das and Joharlal Das are one and the same person. PW 9 - Anthony Hansdak has proved that the said amount was deposited in the name of Joharlal Das after Joharlal Das certified that Johar Das and Joharlal Das were one and the same person. Said endorsement is made by the accused in his Account No. 2335 with the State Bank of India, Shillong Brnach on the back of the aforesaid Bank Draft as such Trial Court has committed no error of law in reading the evidence against the accused.
24. Mrs PDB Baruah, learned counsel for the accused Joharlal Das referring to the case of VK Sasikala vs State, (2012) 9 SCC 771, argued that abovementioned evidence relating to endorsement was not put specifically to the accused Johar Das under Section 313 CrPC as such it cannot be read against him. But the view taken by the Apex Court in VK Sasikala (supra) relates to inspection of a document applied by the accused. In the present case, not only the document was on record but the accused had an opportunity to cross-examine the 21 witness (PW 9) Anthony Hansdak and in the cross- examination said witness told that after verifying from the accused that Johar Das and Joharlal Das are is the same person, the amount was credited in his Account. In the case State (Delhi Administration) vs Dharampal, (2001) 10 SCC 372, it has been held by the Apex Court that merely for the reason that some material was not directed to be explained by the accused under Section 313 CrPC, by itself does not vitiate the proceedings of trial unless prejudice is caused to the accused. Apart from this in State of Punjab vs. Swaran Singh, (2005) 6 SCC 101, the Apex Court has observed as under :
" 10. The questioning of the accused is done to enable him to give an opportunity to explain any circumstances which have come out in the evidence against him. It may be noticed that the entire evidence is recorded in his presence and he is given full opportunity to cross-examine each and every witness examined on the prosecution side. He is given copies of all documents which are sought to be relied on by the prosecution. Apart from all these, as part of fair trial the accused is given opportunity to give his explanation regarding the evidence adduced by the prosecution. However, it is not necessary that the entire prosecution evidence need be put to him and answers elicited from the accused. If there were circumstances in the evidence which are adverse to the accused and his explanation would help 22 the court in evaluating the evidence properly, the court should bring the same to the notice of the accused to enable him to give any explanation or answers for such adverse circumstance in the evidence."
In view of the above, this Court is unable to accept arguments advanced on behalf of the accused Joharlal Das.
25. Third argument advanced on behalf of the accused Joharlal Das is that not charge in respect of offence punishable under Section 420 IPC was framed against him but he is convicted on that count also. In support of the argument, learned counsel for the said appellant cited the case of Sohan Lal vs. State of Punjab, (2003) 11 SCC 534. In reply to this, learned senior counsel for the CBI submitted that since the present accused/appellant Joharlal Das has not been misled, as such his conviction under Section 420 IPC cannot be set aside. On perusal of the charge, this court finds that all the ingredients of offence of cheating are mentioned in the charge framed against the accused by the trial court. The first charge is in respect of the offence punishable under Section 120(B) and all the details of cheating are also given in it as such the accused is not misled by non-framing of separate 23 charge in respect of offence punishable under Section 420 IPC against him (Joharlal Das). Therefore, in view of Section 464 of Code of Criminal Procedure 1973, the conviction recorded by the trial court cannot be interfered with.
26. On behalf of the accused DK Chakraborty, Mrs S Bhattacharjee submitted that the accused/appellant DK Chakraborty was a film Director and he had property worth Rs. 40 lakhs in Kolkata as such it cannot be said that he had any motive to cheat the Bank. In this connection, attention of this Court is also drawn to the fact that PW 27 Inder Paul Mahendru has admitted that the accused DK Chakraborty had a residential house in 266-A Rash Bihari Avenue, Kolkata valued at Rs. 40 lakhs. However, there is nothing on record to suggest that the said property was actually mortgaged in securing loan. As such merely for the reason that the accused DK Chakraborty had some property in Kolkata does not create reasonable doubt that he was not involved in fraudulently securing the loan from the Bank. Rather what has come on the record is that on 25.08.88 as many as three Accounts were opened in Kolkata one Account 24 No. 1787 in the name of M/s Sun Engineering Enterprises which was operated by the accused Johar Das @ Joharlal Das who was introduced by the accused DK Chakraborty, Second Account No. 1788 was opened in the name of M/s Tricon Wood Products in the name of the accused DK Chakraborty and one SK Agarwal (absconder), and third Account No. 1789 was opened in the name of M/s Twenty first Century by the accused DK Chakraborty and SK Agarwal (Absconder). The amount of loan which was released and on several installments was siphoned off by opening the above Accounts by the accused persons.
27. It is further submitted on behalf of the accused DK Chakraborty that it was the accused SK Agarwal (absconder) who was the main culprit and beneficiary of the transaction. However, there is no such evidence on record to suggest that DK Chakraborty had no connivance with SK Agarwal (absconder) rather the same is apparent from the evidence discussed above.
28. Lastly, attention of this Court is drawn to Section 306 CrPC on behalf of the accused/appellant DK 25 Chakraborty and it is contended that before making PW 26 - Ravi Kumar Sabharwal and PW 27 - Inder Paul Mahendru as accomplice/witnesses, procedure laid down in Section 306 CrPC should have been complied with. I have gone through Section 306 CrPC and perused the record. Though aforesaid two witnesses were initially named as accused, but since it appears that there was no evidence against them regarding their involvement in the crime as such they were not charge-sheeted as accused. That being so, their examination as witnesses suffers from no illegality. Otherwise also even without reading the evidence of above two witnesses, charge against the accused/appellants for which they are convicted, is sufficiently proved on the record.
29. For the reasons as discussed above, this Court finds no force in the two appeals which are liable to be dismissed. Accordingly, both the appeals are dismissed. Let the lower court record be sent back along with copy of this judgment.
(PRAFULLA C PANT) CHIEF JUSTICE 10th December, 2013 dev