Delhi District Court
Sh. Homi Rajvansh vs Cbi on 2 April, 2019
Criminal Revision No.231/2018
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE AS WELL AS SPECIAL JUDGE
(PC ACT) CBI: EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Revision No. : 231/2018
Under Section : 120-B r/w 409/420/467/468/471 IPC
and 409/420/467/468/471 IPC.
Branch : CBI/BS&FC/DELHI
RC No. : BD1/2006/E/0009
CNR No. : DLET01-008036-2018
In the matter of :-
SH. HOMI RAJVANSH
S/o. Late Sh. R.K. Rajvansh,
R/o. C-93, 2nd Floor, Greater Kailash-I, New Delhi.
............PETITIONER
VERSUS
CBI .........RESPONDENT
Date of Institution : 13.11.2018
Date of reserving order : 11.03.2019
Date of pronouncement : 02.04.2019
Decision : Petition is dismissed.
ORDER
1. This is revision petition directed against order dated 08.08.2018 passed by ACMM (East) in a case titled as CBI v. M/s. Earthtech Enterprises Ltd. & Ors., bearing New Case No.46/2016, RC No.BD1/2006/E/0009, Branch: CBI/BS&FC/DELHI. Vide impugned order dated 08.08.2018, trial court passed order to frame charges for offences punishable under Section 420/409 read with Section 120-B IPC and the substantive offence of 120-B IPC, against Sh. Homi Rajvansh (petitioner herein).
Page 1 of 24 (Pulastya Pramachala)Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 BRIEF FACTS OF THIS CASE :-
2. Briefly stated, this case was registered by CBI on the basis of a complaint lodged by Sh. Alok Ranjan, the then MD, NAFED. In brief, the allegations were made that NAFED had entered into several contracts with M/s. EEL for carrying out business under merchanting trade regulations. Some non-agricultural products were imported and thereafter, some products were exported under these transactions. NAFED used to open LCs for import leg of transaction. In respect of export transaction, LC was received at the behest of purchaser. 18 LCs were opened through Union Bank of India against export of commodities, which remained unpaid. The corresponding LCs were opened at the instance of M/s. EEL for total value of Rs.55660218.03 USD by NAFED. Thereafter, it was revealed that though the LCs were opened at the instance of M/s. EEL, but there was no physical delivery of any goods and co-accused Sh. O.P. Agarwal, M/s. EEL, Sh. Pankaj Aggarwal etc. were acting out of criminal conspiracy to defraud NAFED. NAFED had to make payment of 18 import LCs opened by it through Union Bank of India.
3. In the charge sheet, CBI alleged that petitioner/accused Homi Rajvansh was posted as AMD and he was delegated powers for operation of bank account of NAFED by MD. Though, there was no reference to MTT transaction in MOU executed between NAFED and M/s. EEL on 16.10.2003 as well as in the addendum MOU dated 12.02.2004, still petitioner indulged into MTT transaction along with M/s. EEL. For this purpose, petitioner over ruled the objections Page 2 of 24 (Pulastya Pramachala) Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 raised by Sh. D. Masih, AM (Finance) and Sh. S.K. Maggu (Dy. Manager) so as to go ahead with opening of LC for import leg of transaction. Petitioner, on persuasion of M/s. EEL further allowed amendments in the requirement of various documents for the purpose of opening LC and he also persuaded Union Bank of India to open the LCs on the basis of relaxed norms of furnishing photocopies/FAX/non-negotiable copies of the bill of lading. Thus, he dispensed with the requirement of furnishing original bills, thereby loosing control over the ownership over the articles being exported. When such kind of transaction was being done through Punjab National Bank, then this bank had refused to accept the documents for export leg of transaction pointing out that importer and exporter in MTT should be one and same party, though in this case, the importer was NAFED, but exporter was shown to be M/s. EEL. Instead of taking the corrective measures, petitioner insisted for acting upon the same documents and the petitioner thus, acted at the instance of M/s. EEL without caring for exposure and risk factor involved for NAFED. Thereafter, petitioner approached Union Bank of India. Though, the matter was also referred to RBI for clarification by UBI and RBI later on, informed that the documents could be taken by the bank by its own end after ensuring compliance of all the merchanting trade guidelines. As per RBI, master circular dated 01.07.2004, under MTT guidelines, the authorized dealer (bank) was to ensure that liability of import leg was extinguished by proceeds of export leg and the entire MTT was completed within a period of 180 days. For this purpose, a corresponding export leg LC Page 3 of 24 (Pulastya Pramachala) Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 in favour of NAFED was required from a reputed International Bank. However, such condition was not complied, rather LC of a little- known offshore Bank namely Renfrew Bank was forwarded. This bank did not figure in the list of banks recognized as prime bank's circular of Union Bank of India, Head Quarter and one official of Union Bank of India had also called for credit report of this bank and it was informed to them that such bank could not be located by the concerned agency. But Union Bank officials did not further seek investigation with regard to the status and standing of Renfrew Bank. In the capacity of exporter, M/s. EEL was to be beneficiary of sale proceeds, whereas NAFED had to bear a brunt of import liabilities, because NAFED used to obtain the import LCs. The official of Union Bank of India had raised certain queries for clarification of amendment in the requirements for issuance of LCs. But petitioner, simply responded back that "amendments as requested by NAFED please be made in the LC urgently" and thus, the clause requiring presentation of original seeking documents was deleted from the LC. This practice became a regular feature of all subsequent LCs opened by NAFED including the 18 LCs, which became cause of loss to NAFED. The export leg documents were tendered directly by petitioner and M/s. EEL without involving the tie up officials namely Sh. S.K. Maggu, Sh. D. Masih, Sh. S.C. Shah into that process. In some export leg MTT transactions, payments were received, but by that time substantial diversion of funds had already taken place. In some cases, M/s. EEL had not even paid its dues to NAFED like LC charges, service charges, still petitioner Page 4 of 24 (Pulastya Pramachala) Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 continued with further MTTs and the process of opening LCs for import leg, without caring for the safeguards to be taken against any loss likely to occur, on account of failure to receive payment of export leg.
4. The 18 LCs opened by UBI on recommendations of petitioner, were opened from March to July 2005, as per following descriptions: -
4.1. LC Nos. 88/05, 89/05, 90/05, 91/05, 92/05 and 94/05 opened on 22.03.2005 and 24.03.2005.
4.2. LC Nos. 135/05 and 136/05 opened on 11.04.2005. 4.3. LC Nos. 217/05, 218/05, 219/05 and 220/05 opened on 04.06.2005.
4.4. LC Nos. 320/05, 321/05, 322/05, 323/05, 324/05 and 325/05 opened on 29.07.2005.
5. In all these LCs clauses were mollified at the instance of petitioner.
In four LCs, even the clause relating to application of RBI master circular was got deleted by petitioner at the instance of M/s. EEL and approval for these four LCs Nos. 217/05 to 220/05 was given by petitioner on back date, because on 01.06.2005 the MD had issued orders that no further LCs were to be opened without his specific approval. Petitioner had given his approval for these four LCs on 29/31.05.05. In respect of six LCs opened on 29.07.2005, petitioner sought approval of MD. MD formed a committee comprising of petitioner, Sh. R.P. Keshari and Sh. B.P. Singh for giving their recommendation. In the meeting of this committee held on 11.07.2005, petitioner informed other members that NAFED had Page 5 of 24 (Pulastya Pramachala) Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 already entered into contracts for sale as well as for purchase and to honor the contracts opening of LCs was required. However, he concealed the fact that export leg payment in earlier transactions was overdue. The committee members agreed to open the LCs on condition to show the contracts to them. However, even later on, the contracts were not shown to them. Subsequently, bank official noted that original shipping documents were not being called for and the Renfrew Bank was also small time non-prime bank. He referred the matter to head office of UBI and at this stage, NAFED withdrew its request for opening of fresh LCs. However, on 26.07.2005 petitioner unilaterally and without seeking approval from NAFED board/MD and also without consulting his subordinate official, issued letter dated 26.07.2005 to UBI. In this letter, he acknowledged that Renfrew bank was a small time non-prime bank, but he still requested UBI to open LCs. He also assumed responsibility/liability of NAFED for making payments in the event of default of LCs opened by Renfrew Bank. On this assurance, UBI allowed opening of last 6 LCs nos. 321/5 to 326/5.
6. The investigation further revealed that in the series of diversion of funds by co-accused Pankaj Aggarwal, an amount of USD 1 lac was transferred by him to the account of Dubai Metal Corporation maintained with ABN Amro Bank, Dubai on 07.11.05. This amount was remitted for petitioner, as reflected from the advice sent by ABM Bank to co-accused Pankaj Aggarwal. An employee of Pankaj Aggarwal also confirmed aforesaid payment on account of petitioner.
Page 6 of 24 (Pulastya Pramachala)Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 Thus, petitioner had been acting at the behest of co-accused persons and taking decisions on behalf of NAFED, without caring for interest of NAFED, so as to extend undue benefits to co-accused persons as well as to himself at the cost of fund of NAFED.
7. Vide order dated 08.08.2018, trial court passed order on charge against all accused persons including petitioner herein. Vide this order, trial court ordered to frame charges for offences punishable under Section 420/409 read with Section 120-B IPC and substantive offences of Section 120-B IPC against petitioner herein. GROUNDS :-
8. Being aggrieved of the impugned order, petitioner has filed this revision petition mainly on the following relevant grounds :-
8.1. That trial court did not appreciate the facts of the case. Trial court has drawn per-conceived and predetermined conclusion, while giving direction to frame charges against petitioner vide impugned order. The manner, in which the order on charge was pronounced, is patently illegal.
8.2. That since joining NAFED, petitioner was working under overall control of Managing Director and management of NAFED, which was constituted by the Board of Directors, Chairman and MD of NAFED. The investigating agency had ignored that petitioner was never delegated any authority or powers by Alok Ranjan for undertaking tie-up business. All actions were taken after taking prior approval of the management/MD. Petitioner never took any decision or advise beyond the instructions, as alleged by the investigating Page 7 of 24 (Pulastya Pramachala) Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 agency.
8.3. That trial court as well as investigating agency paid no heed to the fact that in NAFED, M.D. was responsible for day to day operations of NAFED. All subordinates officials including petitioner worked under M.D. and carried out their functions under his supervision. 8.4. That trial court did not appreciate that Board of Directors and other committees such as Business Committee, Executive Committee, Finance and Accounts Committees were meeting periodically and all tie-up transactions of NAFED, including M/s. EEL were put to the scrutiny. Besides this, internal audit was also conducted on regular basis, however, none of the Committees or Auditor pointed out any irregularity in the acts performed by the petitioner. Petitioner was not member of any of the Committees and audit was also a separate division under Sh. B.S. Premi, Additional Managing Director, NAFED.
8.5. That trial court did not appreciate that petitioner was only subordinate officer and carried out the instructions of the Chairman and M.D. in NAFED. Petitioner was only a lower level functionary in NAFED and did not have any decision making powers. Petitioner was reporting to Alok Ranjan as well as Chairman on daily basis and was diligently carrying out the directions of the management and did not violate any guidelines. All transactions entered into were duly recorded in the books of account and balance sheet drawn for the financial year 2003-04 and 2004-05, which clearly reflect that the decisions taken were institutional decisions.Page 8 of 24 (Pulastya Pramachala)
Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 8.6. That trial court ignored para 45 of the judgment of High Court of Delhi in the matter titled as Homi Rajvansh v. State (through CBI), bearing Crl.M.C. No.3325 of 2012.
8.7. Trial court did not appreciate the fact that there were no meetings of mind. Trial court did not appreciate the settled law that prosecution can discharge its onus by relying upon the circumstances to establish existence of conspiracy. However, the circumstances relied upon by the prosecution have to be of a definite character, which unerringly point towards guilt of the accused. However, a charge of conspiracy may prejudice the accused, because it forces him into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that the accused had knowledge of object of conspiracy, but also of the agreement. In the charge of conspiracy, court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, prosecution tries to implicate the accused not only in the conspiracy itself, but also in the substantive crime of the alleged conspirators.
8.8. That trial court committed grave illegality, while formulating a prima facie opinion that approval in respect of L.C 217, 218, 219 and 220 were ante dated by the petitioner. The request received from M/s. EEL for opening of fresh L.Cs was duly recommended by subordinate officials and approval of petitioner was obtained on Page 9 of 24 (Pulastya Pramachala) Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 30.05.2005 itself. After approval of petitioner, none of the processing/communication in respect of the aforesaid L.Cs had been done by the petitioner. There is no justification for imputing the petitioner for ante dated approval in respect of said four L.Cs. In fact, officials who are responsible for correspondence with the bank for opening the aforesaid four L.Cs, have been arrayed as witnesses to sustain a frivolous claim of the investigating agency of anti dated approval.
8.9. That trial court committed error in over emphasizing the change of Bank from Punjab National Bank to Union Bank in order to treat it as a circumstance pointing towards complicity of the petitioner in the alleged crime. The objection raised by Punjab National Bank was not in due adherence with the guidelines framed by the Reserve Bank of India and another nationalized bank i.e. Uinon Bank of India was ready to carry out the same transaction, without change in the name of the account holder. Since, L.Cs were opened on MTT basis and the payments were not supposed to be made without the exports leg outstanding received by the banker, NAFED did not find any objection in shifting the bankers. The transaction objected by Punjab National Bank was successfully completed by Union Bank of India and no loss had accrued to the NAFED owing to the change of Banker. Merely concurring with the request of NAFED for change of the Banker could not be used as a circumstance for raising grave suspicion qua the applicant for his complicity for commission of any offence.
8.10. That trial court erred in relying upon the statements of Sh. S.K. Page 10 of 24 (Pulastya Pramachala) Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 Maggu, Deputy Manager tie-up, NAFED and of Sh. S.P. Singh, an official of Punjab National Bank, to question transfer of banker, which run contrary to the documentary evidence placed on record. All transactions, subject matter of the present case were formulating part and parcel of the official record, which was subjected to scrutiny not only to the Executive Committee, Business Committee, but also to the internal as well as Statutory audit. No objections were raised at any end either from NAFED or from the Nationalized Banker (Union Bank of India) to assail the mode of transaction. To raise questions about bona fide of a person at a later stage, merely because the payment has been defaulted, is neither appreciable not sustainable in the eyes of law.
8.11. That trial court erred in relying upon statements under Section 161 Cr.P.C, wherein the employees of NAFED have pleaded ignorance regarding the communication dated 26.07.2005. It is not the case of prosecution that petitioner was custodian of the files. All the proceedings for opening of the fresh L.Cs subsequent to the communication dated 26.07.2005 had rooted to the said witnesses only.
8.12. That trial court committed grave illegality by arriving at a conclusion that approval of opening of fresh L.Cs worth USD 20 million was obtained by petitioner without showing the contract files. The approval note of the managing director dated 14.07.2005 made it amply clear that files were duly seen by him, while approving the recommendations of the committee made of 12.07.2005.
Page 11 of 24 (Pulastya Pramachala)Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 8.13. That trial court committed grave illegality in ignoring the fact that communication regarding the Renfrew bank not being a prime bank, was received by NAFED for the first time in July 2005 only, when Managing Director and the committee had already approved the opening of L.Cs. In fact, the record shows that subsequently, when M/s. EEL requested NAFED for opening up of fresh L.Cs, the request was accepted by petitioner, subject to the same being rooted through the prime bank only. Had the petitioner been in league with M/s. EEL, petitioner would not have raised any such pre-condition. NAFED did not have any issue regarding transaction being rooted through M/s. Renfrew bank as all the transactions rooted through said bank, were duly honoured and there were not even a single history of default.
8.14. That trial court committed error in ignoring the fact that the investigating agency imputed petitioner to be one of the conspirators in two cases i.e. RC/EOU-I/2007/E-0002 and RC-BD1/2006/E/0009, whereas conclusion of investigating agency regarding petitioner being conspirator with M/s. EEL and O.P. Aggarwal, had been negated by Delhi High Court in Cr.M.C. No.3325 of 2012. Said finding of High Court of Delhi has already attained finality and by taking a diverse view, trial court tried to over reach judicial hierarchy. 8.15. That trial court did not appreciate the fact that the actual wrong loss to NAFED has accrued, when the then Managing Director approved the release of payment to UBI, which in defiance of circular of RBI released the payments against the import leg LCs, Page 12 of 24 (Pulastya Pramachala) Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 without obtaining the payment against export leg LCs. APPRECIATION OF ARGUMENTS, FINDINGS AS WELL AS DECISION :-
9. Ld. counsel for petitioner argued on the lines of grounds taken in the petitioner. He referred to several documents on the record to justify the action and decision taken by the petitioner. He further referred to legal principles in respect of offence of conspiracy as well as offence u/s 409 & 420 IPC to submit that no such offences are made out against the petitioner.
10.Ld. PP for CBI along with ld. counsel for complainant/NAFED argued on the basis of statement given by several witnesses that petitioner had been acting in the interest of EEL deliberately, because he was a part of the conspiracy to defraud NAFED. They also referred to testimonies of witnesses as well as several documents to support their contentions.
11.Before I look into the record of this case and appreciate the rival contentions, it is appropriate to refer to the legal principles for determining the scope of assessment at this stage of charge. In a case titled as Sushil Ansal Vs. State, 2002 Cr.L.J. 1639, Delhi High Court held that :-
"only in those cases, where a judge is almost certain that there is no prospect of the case ending in a conviction and is of the view that the time of the Court need not be wasted by holding the trial, an order of discharge may be passed. However, in case there is a strong suspicious finding upon some material available on record, which leads the Court to form presumptive opinion as to the commission of the offence by an accused, the framing of the charge would be warranted.Page 13 of 24 (Pulastya Pramachala)
Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 No detailed or elaborated inquiry is required to be undertaken at this stage by delving deep into various aspects of the matter to find out as to whether an accused can be held guilty or not."
12.In P. Vijayan Vs. State of Kerala AIR 2010 SC 663, the Supreme Court observed that :-
"The judge has to exercise his judicial mind to fact of case in order to determine whether a case for trial has been made out by prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities, which is really the function of the Court, after the trial starts."
13.Petitioner took plea before this court that he was reporting to MD and carried out directions of the management only. Ld. counsel also referred to bylaws of NAFED to submit that there had been different committees namely executive committee/business committee etc. for the purpose of taking policy decisions and for reviewing the operations of NAFED on quarterly basis. It was further argued that entire business activities were subjected to internal audit, besides annual statutory audit till repatriation of petitioner to his parent department in July 2006, no allegations were made against him by any committee. It was only on failure of M/s EEL to liquidate its outstanding dues regarding third country transactions that formal complaint was filed in November, 2006 resulting into present FIR. Reference was also made to the decision given by Delhi High Court in another FIR registered against petitioner and others, wherein the said FIR bearing RC no. RC EOU-I/2007-E-002 was quashed, while Page 14 of 24 (Pulastya Pramachala) Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 rejecting the allegations of existence of conspiracy preceding execution of agreement dated 16.10.2003 and addendum dated 12.02.2004.
14.In my opinion the present case has to be assessed independently of aforesaid factors. Even if it is assumed that different committees of NAFED did not raise any objection prior to complaint being made in this case, that cannot be a ground to exonerate the petitioner. Similarly, quashing of another FIR could not be a ground to discharge the petitioner in this case because, both the cases are based on different allegations and probably for such reasons only, petitioner did not seek quashing of present FIR as well alongwith aforesaid FIR.
15.The allegations against the petitioner were demarcated by ld. counsel, so as to justify those actions. The demarcated allegations had been as follows:-
15.1. Petitioner permitted the amendment requiring acceptance of only photocopies/fax copies of the bill of lading. 15.2. Petitioner overlooked the objection of PNB regarding omission of name of NAFED as exporter and the export leg LC being issued in the account of M/s EEL A/c NAFED.
15.3. Petitioner accorded antedated approval for four LCs opened on 04.06.05.
15.4. Petitioner misled the committee constituted by MD for obtaining approval for opening six LCs.
15.5. Petitioner issued letter dated 26.07.05 for opening of six import leg Page 15 of 24 (Pulastya Pramachala) Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 LCs, despite knowing the fact that M/s Renfrew Bank was not a prime bank. Rather, the said letter was concealed by the petitioner.
Petitioner also unilaterally assured UBI to indemnify the losses in case export leg proceeds were not received by UBI.
16.In respect of first allegation, petitioner took plea that amendments were approved at the level of advisor and it was so done on the basis of request sent by M/s EEL and the recommendations made by subordinate staff. Since, none of subordinate staff or advisor raised any objection, hence amendments were approved.
17.In respect of second allegation, petitioner took plea that the 18 LCs which are subject matter of present case, were opened as NAFED A/c M/s EEL being beneficiary of the same. He further took plea that as per investigation not a single penny was received in the account of M/s EEL and hence, there was no loss to NAFED because of failure of EEL to remit the amount received out of the transactions.
18.In respect of third allegation, petitioner took plea that the relevant note sheet would show that the 4 LCs were proposed to be opened on 30.05.05 and petitioner signed the same on 31.05.05. The request of LC was sent to bank by subordinates of the petitioner and hence, there was no question of antedated approval being given by petitioner.
19.In respect of fourth allegation, petitioner took plea that as per his note, he had clearly brought on record that there was an outstanding of Rs. 80 crores against the party and that audit of the working of the party revealed that there was nothing wrong with the third country Page 16 of 24 (Pulastya Pramachala) Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 export already carried out by the party. The first default in respect of entity transaction occurred only on 18.08.2005, though the date of seeking approval from MD was 14.07.05. On the date of seeking such approval, there was no default. Each individual file related to 6 LCs contained notings mentioning that the contracts entered into were available on record and all these files were put up to MD with the minutes of meeting of the committee. MD recorded that he had seen the files and the recommendations and accorded approval accordingly. Thereafter, subordinate officials put up the note on 14.07.05, seeking approval for opening of 6 LCs in each separate LC file.
20.In respect of fifth allegation, petitioner took plea that MD had approved opening of 6 LCs on 14.07.05 and around that time, a letter dated 13.07.05 was received from UBI, thereby intimating NAFED about non-receipt of payments with respect of export leg LCs, in connection with import leg LCs, which were due to be paid on 22.07.15. Petitioner thereafter, directed UBI to return the application forms for opening 6 fresh LCs and at the same time, a letter was also sent to M/s EEL, seeking their reply to aforesaid intimation. M/s EEL replied that the payment of one LC had already been made and the payments of export leg would be received in time to make payments of import leg LCs due on 22.07.05. Thereafter, UBI for the first time intimated NAFED that Renfrew Bank was not a prime bank. As the MD had already accorded his approval to open fresh LCs and no discrepancy had been detected by the Page 17 of 24 (Pulastya Pramachala) Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 audit carried out by independent consultant as well as in view of there being no default till July 2005, petitioner requested UBI to open 6 fresh LCs. Though, subsequently petitioner asked M/s EEL to clear outstanding dues and to furnish LC of prime bank only. Thus, till July 2005, NAFED had received all the payments from Renfrew Bank on due dates and no default had taken place. LCs of Renfrew Bank had been acceptable to UBI, which chose to undertake the business with them. In fact, even UCO Bank as well as PNB had accepted LCs of Renfrew Bank without objection in the past. As the advising bank of NAFED, acceptance of LCs by aforesaid banks was enough safeguard for NAFED, because LC was a bank to bank transaction. The allegation that the letter dated 26.07.05 was withheld by petitioner till January 2006, is fallacious because petitioner was not the custodian of the file. It is reflected from the documents that Manager and Dy. Manager of Tie-up Section had intimated to the branches about opening of the LCs, against which bank charges were encashed by presenting the cheques issued by M/s EEL. If aforesaid letter would have been withheld then such communication could not have been issued to the branch. Moreover, the documents returned by the bank vide letter dated 16.07.05, were in custody of Sh. S.K. Maggu. Hence, the LCs could not have been opened without those documents being re-tendered by him with UBI. As far as undertaking given to make good the payment in case of default is concerned, it was a routine practice for requesting opening of any LC. Similar undertakings were being given by different officials in the past as well, as per the format of undertaking received from Union Page 18 of 24 (Pulastya Pramachala) Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 Bank. However, as per MTT guidelines of RBI, NAFED had clarified to the bank that the liability of the import leg LC was to be met with the export leg LC proceeds and in fact, UBI unilaterally took decision of making payments of import leg without having proceeds from export leg. Even in defiance of MTT guidelines, NAFED decided to pay UBI under guidance of Sh. R.P. Kesari.
21.Per contra, counsel for complainant took plea that there was no logic of dispensing with requirement of presentation of original bills of lading. He further submitted that all such acts were done by petitioner in connivance with co-accused persons, so that NAFED could not have any control over the goods. He referred to testimony of PW4 and PW14 to demonstrate the detrimental effects of the amendments requested by the petitioner with UBI. He further submitted that petitioner insisted for such amendments despite warnings given by UBI vide letter dated 08.01.05. Subsequently, he further allowed relaxation of the terms and conditions in LC no. 88/5 dated 18.03.05 and subsequent LCs, thereby deleting the requirement of applicability of master circular of RBI to MTT transactions. He further submitted that petitioner being AMD and head of the tie-up business of NAFED did not ensure that export leg LC was obtained from a prime bank in favour of NAFED. He submitted that it was a well thought plan hatched by all accused persons, to first of all win the confidence by honouring some of LCs and thereafter, to syphon off the money out of 18 LCs. He further submitted that petitioner was not authorised on behalf of NAFED to Page 19 of 24 (Pulastya Pramachala) Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 give undertaking to indemnify UBI and all the acts were done only to loose control of NAFED over the transactions.
22.While going through the chargesheet, I could find some additional allegation against petitioner as well, which was not specifically dealt with by ld. ACMM in the impugned order. This allegation is based on the testimony of PW60 and a piece of document i.e. advice of remittance of amount issued by ABN Amro Bank, Dubai. PW60 was working for co-accused Pankaj Aggarwal at Dubai and had been taking care of banking transactions on behalf of Pankaj Aggarwal. According to PW60, at the instance of co-accused Pankaj Aggarwal amount of USD 1 lac was transferred to the account of M/s AMC DMCC maintained with ABN Amro Bank, Dubai. She sent the remittance instructions to bank on behalf of M/s Roseberry Global FZE Sharjah (company of Pankaj Aggarwal) for the said transfer and while doing so, she mentioned that the payment was on account of Sh. Homi Rajvansh (petitioner). She had written so because it was so told to her by Pankaj Aggarwal and hence, she had written the words "on account of Mr. Homi Rajvansh" on the remittance instruction. Later on, even bank sent a remittance advice intimating that the amount had been transferred and in the remittance advice sent by the bank also, the words "on account of Mr. Homi Rajvansh"
appeared. Co-accused Pankaj Aggarwal as well as O.P. Aggarwal had become angry later on, when they saw such remittance advice, because they did not want name of petitioner to appear in the official bank documents. CBI has relied upon the remittance advice issued Page 20 of 24 (Pulastya Pramachala) Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 by ABN Amro Bank Dubai as well as statement of PW60 also, to support the allegations that petitioner had been much favourable to M/s EEL, out of a conspiracy to defraud NAFED.
23.If I look into the allegations mentioned herein above alongwith the aforesaid allegations of remitting so much of amount by co-accused for the purposes of the petitioner, then I find that the conduct of petitioner would show that everything was done out of a pre-plan. Petitioner has given several justifications for all the approvals and decisions taken by him, on the basis of request letters received from M/s EEL. However, at this stage of charge, this court cannot return a final finding to declare that the conduct of petitioner had been totally free of doubt and to say that there cannot be any inference raised against the petitioner to show that he was part of conspiracy.
24.As per case of CBI, investigation revealed that no transaction of delivery of any goods had taken place during import leg and similarly, there was no transaction of receipt of any goods during export leg of transaction. All these transactions were being shown on documents only. Even M/s Renfrew Bank did not exist and the LCs which were shown to be honoured by this bank, were actually honoured out of the fund received from encashment of import leg LC. Petitioner had been readily accepting all kind of requests made by M/s EEL i.e. to seek amendment in the terms conditions of opening LCs or to further mollify the terms and conditions and thereafter, giving undertaking on behalf of NAFED to UBI to deposit equivalent amount in case of any default.
Page 21 of 24 (Pulastya Pramachala)Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018
25.PWs who worked under and alongwith petitioner have stated that they were totally unaware of letter dated 26.07.05, which was sent by petitioner to UBI for opening fresh 6 LCs against his assurance to indemnify the bank in case of any default. It is one thing to say that the subordinate officials were aware of LCs being opened and it is different thing to say that they had access to aforesaid letter. It is worth to mention that prior to 26.07.05, on the basis of certain reservations shown by UBI vide letter dated 13.07.05, the applications for 6 LCs were taken back by Sh. S.K. Maggu from NAFED. In the letter dated 13.07.05 sent to petitioner by AGM UBI, it was informed that 4 import bills were due for payment, but export leg proceeds against those LCs were not realized so far. It was also communicated that in the month of July, 2005 more LCs were due for payment. Petitioner had taken plea that one of those 4 export LCs were paid by M/s EEL and M/s EEL had assured for encashment of other export leg LCs. Again on 22.07.05, Chief Manager of UBI sent letter to petitioner to inform that only one payment was received and as per LC terms, they had to make payment to the foreign bank on due date. Still merely after 4 days, petitioner referred to credit limit of NAFED with the bank to the extent of Rs. 450 crores (though allegedly it was only 400 crores) and insisted for issuing 6 LCs for this time. He acknowledged that the said bank (M/s Renfrew Bank) was not a prime bank and he stated that since they had been entertaining export leg LCs from this bank, hence, the fresh LCs could be issued for this time. He further assured that LCs from a prime bank would be arranged in future. He added his undertaking to Page 22 of 24 (Pulastya Pramachala) Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 deposit equivalent amount to the extent of default, if any. I do not find such assurance, given in letter dated 26.07.05 to be simplicitor a case of format of undertaking. The other letters referred by ld. defence counsel during arguments i.e. letter dated 28.03.05 and 11.02.05 had altogether different language used therein and those letters were not sent in such circumstances as prevailed this time. The hurry and urgency to seek opening of fresh LCs, require to be assessed during trial.
26.Moreover, a document issued by a private bank way back on 07.11.05, in the form of remittance advice, cannot be assumed to be fabricated document, that too without holding a trial in that respect. In that situation, in the column of details of payment, the words mentioned by bank as "on account of Mr. Homi Rajvansh" is a very significant circumstance. The bank could not have known the petitioner on its own, nor there could be any reason for the bank to add aforesaid remarks on its own. Even for PW60, mentioning such fact in the request for remittance, could not be without such instructions given to her. Such instruction being given by co-accused Mr. Pankaj Aggarwal, in the background of all the favours shown by petitioner to accept every request of M/s EEL, assumes much significance.
27.In my opinion, the allegations made against the petitioner in the present case cannot be shrugged off at this stage, on the basis of justifications offered by the petitioner. It would be a matter of trial to appreciate what witnesses have to state against the petitioner Page 23 of 24 (Pulastya Pramachala) Additional Sessions Judge, East District Karkardooma Courts, Delhi Criminal Revision No.231/2018 regarding his conduct. It would be also a matter of trial to appreciate the credibility of such contentions of witnesses as well as the credibility of defence taken by the petitioner in the form of justifications offered by him. In my opinion, the case presented by CBI does raise grave suspicion against petitioner regarding his involvement in the conspiracy to defraud the NAFED. The case laws cited on behalf of both the parties regarding conspiracy cannot be disputed. However, their applicability to facts and evidence of this case would be decided only after holding the trial. At present the allegations do make out the prima facie case of raising inference against the petitioner that he was a part of this conspiracy. Similarly, the charge for offence u/s 420/409 IPC should be treated as charge in alternative to each other and I do not find any need to make any modification in the same.
28.In view of my foregoing discussions, observations and findings, revision petition is dismissed.
29.TCR be sent back along with copy of this order to trial court. Revision file be consigned to record room, as per rules.
Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court No.3,
PRAMACHALA Karkardooma Courts,
Delhi
Date: 2019.04.02
17:46:44 +0530
Announced in the open court (PULASTYA PRAMACHALA)
today on 02.04.2019 Additional Sessions Judge, East
(This order contains 24 pages) Karkardooma Courts, Delhi
Page 24 of 24 (Pulastya Pramachala)
Additional Sessions Judge, East District
Karkardooma Courts, Delhi