Delhi District Court
Cbi vs Vipul Sharma Etc. on 10 September, 2013
CBI vs Vipul Sharma etc.
IN THE COURT OF SH. GURVINDER PAL SINGH,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC No. 35 /12 (Old CC No. 06/11)
RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI
U/S 120B/420 IPC and 13(2)
read with Section 13 (1)(d) of PC Act
CBI vs. Vipul Sharma etc.
Unique ID No.: 02403R0028752011
Central Bureau of Investigation
vs.
(1) Vipul Sharma S/o Late Sh P.R Sharma,
R/o A204/205, Hari Nagar, Clock Tower, New Delhi64
(2) Rajni Sharma W/o ShVipul Sharma,
R/o A204/205, Hari Nagar, Clock Tower, New Delhi64
(3) Rajesh Kumar Singh S/o Sh Baidhya Nath Singh,
R/o H. No. 113, Sector40, Noida (U.P)
Permanent Address: Village Jhikty, P.OKerma,
P.S Kudni, District Mujaffarpur, Bihar
(4) H.G Pai S/o Late Sh H.V Pai,
R/oFlat No. 201, Vishal Apartments,
21 Model House Street, Basvanagudi, Bangalore560004
Date of FIR : 23/11/2009
Date of filing of Chargesheet : 30/03/2011
Case received by transfer on : 09/07/2012
RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 1/89
CBI vs Vipul Sharma etc.
Arguments concluded on : 24/08/2013
Date of Judgment : 10/09/2013
Appearances
For prosecution : Sh Anil Tanwar, Ld. Public Prosecutor for CBI.
For accused : Sh Nagender Deswal and Sh Sanjiv Verma, Ld.
Counsels for A1 and A2.
Sh Rohit Shanker, Ld. Counsel for A3.
Sh K. Madhavan, Ld. Counsel for A4.
JUDGMENT
FACTS GERMANE TO REGISTRATION OF CASE AND CONCLUSION OF INVESTIGATION This case was registered by CBI on the basis of written complaint of Chief Vigilance Officer, Vijaya Bank u/s. 120B r/w 420 of IPC against Vipul Sharma (A1) (Proprietor of M/s Jeevan Fashions, New Delhi); Smt. Rajni Sharma (A2) w/o Vipul Sharma (Proprietor of M/s Elegant Fashions & M/s R.S. Enterprises, New Delhi); Rajesh Kumar Singh (A3) (Proprietor of M/s R.K. Finishing, Gurgaon).
2. As per chargesheet, accused persons in pursuance to criminal conspiracy amongst themselves cheated Delhi Cantt. Branch of Vijaya Bank to the tune of Rs.263.67 lacs in the matters of availing financial assistance from the bank. The details of the financial assistance availed by the firms of the accused persons are as under: RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 2/89 CBI vs Vipul Sharma etc. Sl. Name of the Borrower Name of Date of Sanction Balance No. Party/Account A/c Sr. No. the Sanction limit outstanding Account (Rs.in lakh) 1 M/s. Jeevan 600606011 CCM 29.12.07 110.00 130.05 Fashions (Prop. 000011 LMV 22.03.07 1.38 0.77 Vipul Sharma) 600608411 LMV 10.12.07 5.90 0.18 000054 600608411 000081 2 Smt. Rajni 600608361 ML 08.03.06 20.00 5.76 Sharma wife of 000002 SL 07.02.07 4.53 2.42 Vipul Sharma 600609041 000018 3 Elegant 600606011 CCM 04.01.08 40.00 43.33 Fashions (Prop. 000036 Smt. Rajni Sharma) 4 R S Enterprises 600606011 CCM 31.12.07 40.00 40.36 (Prop. Smt. 000033 Rajni Sharma) 5 R K Finishing 600606011 CCM 11.01.08 40.00 41.00 (Prop. Rajesh 000066 Kumar Singh) Total 263.87
3. During investigation it has been revealed that a CC limit of Rs. 50 lacs was availed on 07.12.05 by M/s Jeevan Fashion which was enhanced to Rs. 60 lacs on 08.02.07. Further ad hoc limit of Rs. 25 lacs and Rs. 50 lacs was permitted on 05.05.07 and 23.06.07 respectively. As on 29.12.07 there was a net exposure of Rs. 135 lacs in the account of M/s Jeevan Fashion whereas the initial CC limit was Rs. 60 lacs which RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 3/89 CBI vs Vipul Sharma etc. was enhanced to Rs. 110 lacs. These sanctions were allowed by the bank on the strength of security against Equitable Mortgage by Deposit of Title Deed (EMDTD) of factory shed no. 83D, Sector37, Udyog Vihar, Gurgaon. It is revealed during investigation that title deed of the said plot was not deposited with the bank by A1 till the end. As per statement of account, A1 of M/s Jeevan Fashion withdrew huge cash amount and did not regularize the loan account, as a result account became Non Performing Assets (NPA)
4. During investigation it was revealed that A1 entered into a criminal conspiracy with his wife coaccused A2, A3 and bank officials. In pursuance to criminal conspiracy, A1 and A2 intentionally deposited the title deed of Industrial Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon with Syndicate Bank, International Branch, Connaught Place, New Delhi which was already pledged with Vijaya Bank in respect of loan availed by A2 from Vijaya Bank. A1 further availed different credit facilities in the account of M/s R.S. Enterprises (Proprietor A2) concealing the fact that said property documents were to be deposited with Vijaya Bank.
5. In respect of role of A2, it is revealed in chargesheet that she availed different credit facilities for her two firms namely Elegant Fashions and R.S. Enterprises against continuous security of Industrial Shed No. 26D, Udyog Vihar, Gurgaon. A2 in conspiracy with her RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 4/89 CBI vs Vipul Sharma etc. husband A1 and coaccused A3 cheated the complainant bank. Instead of depositing the title deeds with Vijaya Bank, A2 availed credit facilities against the same property from Syndicate Bank by creating equitable mortgage by depositing the original sale deed. A2 also stood guarantor for different CCM limits availed by her husband A1.
6. Pertaining to the role of A3, Proprietor of M/s R.K. Finishing it is alleged in chargesheet that he availed CCM limit of Rs. 40 lacs against the against EMDTD against his Industrial Shed No. 83D. A3 withdrew huge cash amount and did not regularize the loan account, as a result the account became NPA. A3 executed agreement dated 07.12.05 to mortgage Industrial Shed no. 83D in favour of Vijaya Bank in respect of CCM limits availed by A1 and also executed memorandum for continuing security of EMDTD of Shed No. 83D in respect of CCM limits availed by A2 but did not deposit the title deed with Vijaya Bank till the end. A3 also stood guarantor for A1, Proprietor of M/s Jeevan Fashion.
7. As per chargesheet, A3 entered into the criminal conspiracy with A1, his wife A2 and bank officials. In pursuance to the criminal conspiracy, title deed of Industrial Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon was intentionally deposited with Syndicate Bank which was already pledged with complainant bank in respect of loans availed by A2 from Vijaya Bank. So, A3 in connivance with co RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 5/89 CBI vs Vipul Sharma etc. accused A1 and A2 helped them in availing different credit facilities in the account of M/s R.S. Enterprises in Syndicate Bank by concealing the facts that such property was already pledged with Vijaya Bank. It is also alleged against A3 that he stood guarantor for the said loan vide guarantee agreement dated 16.06.08.
8. In respect of the role of accused H.G Pai (A4), it is revealed during investigation that he was working as AGM in Vijaya Bank, New Delhi. Allegations against A4 are that neither the title deed of Industrial Shed No. 83D, PhaseVI, Udyog Vihar, Gurgaon in the name of A3 nor of Industrial Shed No. 26D, PhaseVI in the name of A2 were taken while granting different credit facilities in favour of the accused persons. If title deeds of above mentioned properties would have been taken, charge over the said properties could have been created by Vijaya Bank. According to the chargesheet, different credit facilities were sanctioned by A4 being the AGM without collateral security and in violation of terms and conditions of the loan. The credit facilities were granted even by ignoring the opinion of advocates. As per prosecution case, A4, AGM, Vijaya Bank entered into a criminal conspiracy with other three accused persons as well as other bank officials (not prosecuted for want of sanction) and by abusing his official position caused wrongful loss to the bank and corresponding wrongful gain to the coaccused.
9. As per chargesheet, matter for grant of sanction for RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 6/89 CBI vs Vipul Sharma etc. prosecution u/s 19 of Prevention of Corruption Act, 1988 had been taken up with the bank in respect of Shri K. Rajeev Shetty, the then Chief Manager; Shri D.R. Kamath, the then Sr. Branch Manager; Shri Raj Kumar Jain, the then Asstt. Manager; Shri A.K. Aggarwal, the then Asstt. Manager of Vijaya Bank, but the competent authority declined the sanction for prosecution. Matter had been agitated by CBI before the CVC but to no avail. Accordingly, above mentioned four officials of Vijaya Bank had not been prosecuted. Sanction for prosecution against A4 was not required as he had already retired from the service.
10. On completion of the investigation, chargesheet was filed by the investigating agency on 30/03/2011. The cognizance was taken by my Ld. Predecessor on 23/04/2011 and accused persons were summoned. On appearance accused were enlarged on bail.
11. Requirements under Section 207 Cr.P.C were complied with.
CHARGES
12. In terms of order of charge dated 18/02/2012 of my Ld. Predecessor, charge for offences (1) under Section 120B of IPC read with Section 420 of IPC and under Section 13 (2) read with Section 13 (1)(d) of Prevention of Corruption Act,1988 was framed against all accused; (2) RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 7/89 CBI vs Vipul Sharma etc. under Section 420 of IPC was framed against A1, A2 and A3; (3) under Section 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act,1988 (PC Act) was framed against A4 to which all accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
13. To connect the accused with the offences charged, prosecution has examined in all 27 witnesses namely Sh Suresh A.S (PW1); Sh Parmod Gaur (PW2); Sh Archana Gaur (PW3); Sh R. Raja Ballal (PW4); Sh Satyavir Yadav (PW5); Sh Anupam Goel (PW6); Sh Sandeep Kumar Singh Chauhan (PW7); Sh. Ramesh C. Pandey (PW8); Sh Vinod Sharma (PW9); Sh Bishan Chand (PW10); Sh Mahesh Kumar Chauhan (PW11); Sh Sahab Khan (PW12); Sh Raj Mohan Shetty (PW13); Sh Dharamvir Khatri Advocate (PW14); Sh C.R Chandra Mouli (PW15); Sh Udaya Kumar (PW16); Sh Parvin Gupta (PW17); Sh Narender Singh (PW18); Sh Danial Soy (PW19); Sh Jagdish Prasad (PW20); Sh M. Keshav Rao (PW21); Sh Suresh Chand Jain (PW22); Sh Parveen Kumar Kakkar (PW23); Sh Indersain Baluja (PW24); Sh Ramesh Rajani Advocate (PW25); Inspector J.B Lakra (PW26) and Inspector Ashok Kumar (PW27).
STATEMENT OF ACCUSED
14. Thereafter accused persons were examined under Section RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 8/89 CBI vs Vipul Sharma etc. 313 Cr.P.C. All incriminating material in evidence was put to the accused persons. Accused persons pleaded innocence and false implication. A1 stated that he wanted to lead defence evidence. Other accused persons denied to lead defence evidence.
15. A1 and A2 stated that the bank officials of Vijaya Bank in connivance with Mr. Vinod Sharma and Jagdish Prasad had implicated them in the present case to grab their properties because both Jagdish Prasad and Vinod Sharma were still working in connivance with each other; Mr. Vinod Sharma had given his flat at Dwarka to Mr. Jagdish Prasad and the same was transferred in the name of daughter of Jagdish Prasad; to pressurize them for the payment, instead of filing civil proceedings, the bank had filed the present false and fabricated case against them; all the bank officials of Vijaya Bank in connivance with Mr. Vinod Sharma implicated them in the present case; said Mr. Vinod Sharma was working as agent of the bank and forcing the people in distress to sell their properties at lower rates.
16. A3 stated that he had been made a scape goat in this case because he became guarantor in good faith; the CBI officials without proper investigation implicated him despite knowing the facts that his D83 property of value more than one crore was sold by Vijaya Bank to make him suffer more; he had been at a loss and had not gained anything monetarily; he has been falsely implicated as he had deposited RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 9/89 CBI vs Vipul Sharma etc. all the documents as guarantor and made a scape goat in this case; he became guarantor on account of friendly relationship with A1 and deposited his original documents in Vijaya Bank; Conveyance Deed was not deposited because it was not executed; the bank has auctioned his property which was of more than Rs 1 crore, so infact he had been cheated by A1/unknown persons but he had not taken any legal action nor filed any complaint for his such grievance.
17. A4 stated that as per the policy of the bank and many other banks, the banks can sanction loan against the security of allotment letters of land, building, etc. issued by public sector undertaking such as HSIIDC, DDA, etc; very often prospective borrowers approached against the security of letter of allotment for the purpose of purchasing that very property to which the allotment letter relates; thousands of such loans were given by bank on such allotment letters and in those cases title deed is demanded as security, not a single prospective borrower can offer that security as he can buy only after he gets the loan, on the basis of the letter of allotment; if this were not the practice, the whole set up of bank lending to people to buy property and even machineries etc for the factory can never be done; therefore, there is no validity in anyone saying that the original title deed only can be taken as security. A4 further stated that he had done all acts in an absolutely honest manner; assessing the value of property as security was his duty as AGM; as spoken through by many witnesses and even mentioned in RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 10/89 CBI vs Vipul Sharma etc. the documents of Vijaya Bank already produced as evidence, assessing the sufficiency of the security of immovable property was his job whereas actually getting the documents and getting the loan documents signed by the borrowers was the job of the Senior Manager and below.
DEFENCE EVIDENCE
18. Accused Vipul Sharma entered into his defence and examined Sh Ujjwal Mishra, Assistant Manager in Vijaya Bank, Bhikaji Cama Place Branch, New Delhi as DW1.
19. DW1 deposed that as per attendance record, copies Ex DW1/B (colly), Sh Jagdish Prasad (PW20), Clerk had joined on 28/07/2007 in Bhikaji Cama Place Branch of Vijaya Bank and on 29/12/2007 said Sh Jagdish Prasad (PW20) was on duty in said Bhikaji Cama Place Branch but since DW1 himself joined said branch of Vijaya Bank on 19/06/2012, he (DW1) was not aware what all duties were performed by said Sh Jagdish Prasad (PW20) that day as he (DW1) was not there, where the working hours those days were from 10 am to 5 pm. ARGUMENTS
20. I have heard the arguments of Sh Anil Tanwar, Ld. Public Prosecutor for CBI, Sh Sh Nagender Deswal, Ld. Counsel for A1 and A 2; Sh Rohit Shanker, Ld. Counsel for A3 and Sh K. Madhavan, Ld. Counsel for A4, the accused persons and have perused the record RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 11/89 CBI vs Vipul Sharma etc. including the evidence led and given my thoughts to the rival contentions put forth.
21. Ld. PP for CBI argued in terms of the conclusion of the investigating agency and prayed for conviction of the accused persons for the offences charged since by the evidence led, documents proved on record, the prosecution has been able to prove that A4, the then AGM, Vijaya Bank entered into criminal conspiracy with other three accused persons and by abusing his (A4) official position caused wrongful loss to Vijaya Bank to the extent of Rs. 263.67 lacs and corresponding wrongful gain to the coaccused as a result of which Vijaya Bank was cheated. It was also argued that the manner in which the proposals were processed by A4 for sanction of loans/limits to other coaccused persons ignoring the recommendation of the Panel Advocates of Vijaya Bank; A4 and other bank officials (not prosecuted for want of sanction) permitted huge over drawings to the borrowers beyond permissible limits, without any justification; subsequent enhancement/sanction of loans done to cover up the over drawings in the accounts; just before sanctioning/enhancement of adhoc limits, over drawn accounts were brought in order within the sanction limit of existing loan amount by manipulations to justify the enhancement limit; no concerned bank official (including those not summoned for want of sanction) including A4 bothered to take into possession the title deeds of (1) Industrial Shed no. 26D, Udyog Vihar, Ph. VI, Gurgaon, Haryana and (2) Factory Shed RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 12/89 CBI vs Vipul Sharma etc. no. 83D, Sector37, Udyog Vihar, Gurgaon; cumulatively prove complicity of A4 in the offences charged. It was also argued that A1 and A3 stood as guarantors for A2 in Syndicate Bank, Connaught Place, New Delhi where A2 availed loan facilities by pledging title deed of Industrial Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon, which property was previously pledged with Vijaya Bank in respect of loan availed by A2 from Vijaya Bank; which proved the complicity of A1 to A3 for the offences charged. Also was argued that by entering into the criminal conspiracy and availing of the loan facilities, credit facilities, the accused persons A1 and A2 withdrew huge sums of money in cash from their such accounts in Vijaya Bank, Delhi Cantt. branch within span of few days of sanction of such loans/facilities/limits per contra to the purposes for which loans/limits were sanctioned and wrongfully gained putting Vijaya Bank to corresponding wrongful loss and such acts of A 1 and A2 proved of their complicity in cheating Vijaya Bank.
22. Ld. Counsel for A1 and A2 argued that neither A1 nor A 2 had done any criminal act including criminal conspiracy to cheat nor made any false submission to Vijaya Bank nor gave any inducement to any officials of Vijaya Bank and the led prosecution evidence lack substance of any inducement given by A1 or A2 to any bank official nor it is the case of prosecution that any gratification was obtained by any bank official from A1 or A2; nor A1 or A2 had given any such gratification to any bank official. Also has been argued that all the RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 13/89 CBI vs Vipul Sharma etc. documents of Vijaya Bank placed on record by the investigating agency bear the writings of PW20 and it was PW20 Jagdish Prasad who manipulated the documents and changed the sheets of the documents of Vijaya Bank as per the convenience of the bank officials. It was also argued that in the documents viz. Agreement to Mortgage Ex PW15/DA (D47) and Affidavit Ex PW15/DB (D48) do not bear any description of the mortgaged property and there was no occasion or reason to infer the said documents to be pertaining to property Industrial Shed no. 26D, Udyog Vihar, Ph. VI, Gurgaon, Haryana while Ex PW15/DA was not bearing any signatures of the competent person on behalf of Vijaya Bank, so said document was not a validly executed agreement. It was also argued that that the bank officials of Vijaya Bank in connivance with Mr. Vinod Sharma and Jagdish Prasad had implicated A1 and A2 in the present case to grab their properties because both Jagdish Prasad and Vinod Sharma were still working in connivance with each other; Mr. Vinod Sharma had given his flat at Dwarka to Mr. Jagdish Prasad and the same was transferred in the name of daughter of Jagdish Prasad; to pressurize A1 and A2 for the payment, instead of filing civil proceedings, the bank had filed the present false and fabricated case against A1 and A2; all the bank officials of Vijaya Bank in connivance with Mr. Vinod Sharma implicated A1 and A2 in the present case; said Mr. Vinod Sharma was working as agent of the bank and forcing the people in distress to sell their properties at lower rates.
RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 14/89 CBI vs Vipul Sharma etc.
23. Ld. Counsel for A3 argued that A3 did not avail any loan/facility from Syndicate Bank nor deposited any documents of his property there. Also was argued that A3 stood guarantor for A1 and A 2 in good faith and hypothicated his property, of value more than Rs 1 Crores, i.e., factory shed no. 83D, Sector37, Udyog Vihar, Gurgaon with Vijaya Bank which was used by A1 and A2 as collateral security and A3 deposited original documents of his said property with Vijaya Bank. It was also argued that had A3 nursed any guilty intention, there was no occasion for A3 to pledge his property and per contra it was infact A3 who lost his said property i.e., factory shed no. 83D, Sector 37, Udyog Vihar, Gurgaon of value more than Rs 1 Crore and did not gain anything. Also was argued that A3 did not conspire with co accused; had no meeting of mind with coaccused to do any illegal act. Also was argued that the act of A3 by pledging his factory shed no. 83 D, Sector37, Udyog Vihar, Gurgaon as well as plant and machinery with Vijaya Bank infact showed bonafides of A3 but it was infact A3 who was cheated instead.
24. Ld. Counsel for A4 argued that A4 retired on 30/08/2008 as Deputy General Manager. Other officers of Vijaya Bank of concerned period did not face prosecution for want of sanction by competent authority while A4 was unfortunate as on the day of filing of charge sheet, he was since retired and so there was no need for obtaining sanction of his prosecution. It was argued that A4 had sanctioned only RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 15/89 CBI vs Vipul Sharma etc. two regular limits i.e., (i) of Jeevan Fashions CCM of Rs 60 (50+10) lacs only; (ii) of Rajni Sharma (A2) Mortgage Loan (ML) of Rs 20 lacs while the successors of A4 in Vijaya Bank repeatedly enhanced the limit of CCM at (i) after A4 left Delhi Cantt. Branch of Vijaya Bank leading to increase in debit balance in said account. It was also argued that as per PW13, for renewal of CCM limit, Chief Manager or AGM of Vijaya Bank has to adopt same procedure as is applicable for new applications of CCM Limit and accordingly Sh Rajiv Shetty, Chief Manager and Sh D.R Kamath, Senior Branch Manager were bound to follow same procedure for enhancement/renewal of CCM Limits but they did not follow such procedure and were even not prosecuted. It was also argued that the borrower deposited much more than Rs 60 lacs i.e., sanction limit in the CCM account of Jeevan Fashions while the projected total dues/loss of bank estimated at Rs 263.87 lacs was due to accumulation of various other loans given to the party by other officers of Vijaya Bank after transfer of A4 from Delhi Cantt. Branch of Vijaya Bank as AGM. It was also argued that A2 returned Rs 14.24 lacs out of mortgage loan of Rs 20 lacs and the balance was only Rs 5.7 lacs. It was also argued that prime security i.e., factory shed no. 83D, Sector37, Udyog Vihar, Gurgaon which was owned by A3, was accepted by A4 for loan sanctioned to Jeevan Fashions. Said property factory shed no. 83D, Sector37, Udyog Vihar, Gurgaon was sold by bank and Rs 85 lacs were recovered. A4 was instrumental in getting said sum of Rs 85 lacs to bank and infact A4 caused gain to bank even for part of loans not RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 16/89 CBI vs Vipul Sharma etc. sanctioned by him. Also was argued that as per actual banking practice, it was usual for parties to marginally borrow more than the sanctioned limit and later regularize said borrowing within a reasonable time. Such discretionary power of allowing withdrawal to extent of 20% is vested in all AGMs and they frequently excercise such powers. Also was argued that verification of presanction documents is the duty of Credit Department of branch and the Branch Credit Committee (BCC). It was also argued it is not the case of prosecution that A4 defrauded Vijaya Bank by not submitting the title deed of pledged property to Vijaya Bank, in collusion with any bank official in general or A4 in particular. It was also argued that the submission of title deed of Industrial Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon with Syndicate Bank, International Branch, Connaught Place, New Delhi and not to Vijaya Bank, Delhi Cantt. Branch took place about one year after A4 left the Delhi Cantt. Branch. Also was argued that the process note Ex PW17/M (D26) revealed sanction was accorded by Sh D.R Kamath, Senior Manager and not by A4 and A4 only wrote, 'perused' and had signed there. Also was argued that adhoc limits are sanctioned to borrowers for the specific purposes on the security already obtained for originally sanctioned loan; proposal for loan Ex PW17/O (D28) finds mention of it. Also was argued that both properties i.e., (1) Industrial Shed No. 26 D, PhaseVI, Udyog Vihar, Gurgaon and (2) factory shed no. 83D, Sector37, Udyog Vihar, Gurgaon; given as securities to bank were inspected on 24/12/2007 and they were seen and signed by Sh D.R RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 17/89 CBI vs Vipul Sharma etc. Kamath, Senior Manager and Sh Rajiv Shetty, Chief Manager while no prescribed procedure of bank was bye passed to favour the party. Also was argued that A4 left the Delhi Cantt. Branch on 05/05/2007 on transfer and the events mentioned from last portion of page 17 of chargesheet to page 20 of chargesheet are later to that. It was also argued that AGM in Vijaya Bank had to consider only the adequacy of security; it was for the Senior Manager and Branch Credit Committee (BCC) to complete all formalities for presanction requirements, which has also been explained by PW13 while A4 and all officers of above rank were heavily dependent on BCC to point out the positive and negative aspects of the proposal; AGM alone cannot go into such details by himself; so BCC procedure is followed in the bank; large part of working of a branch of Vijaya Bank rested upon AGM. Also was argued that A4 left the Delhi Cantt Branch of Vijaya Bank on transfer on 05/05/2007 much before PW20 Jagdish Prasad was relieved. Also was argued that A2 infact purchased property as she represented to Vijaya Bank for which purpose said bank had given mortage loan of Rs 20 lacs to her; after A4 left Delhi Cantt. Branch of Vijaya Bank, A2 got Sale Deed from HSIIDC and mortaged it to Syndicate Bank contrary to her undertaking to deposit title deed with Vijaya Bank, so A4 cannot be held responsible for cheating committed by A2 on bank after one year of A4 leaving Delhi Cantt. Branch of Vijaya Bank. Also was argued that PWs 4,13,14 and 16 stated that loans are sanctioned to borrowers on letters of allotment and without the Conveyance Deed being executed.
RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 18/89 CBI vs Vipul Sharma etc. Also was argued that as per Ex PW13/DA, Circular dated 22/04/93 of Head Office of Vijaya Bank, it was task of Senior Manager not of AGM (A4) to obtain original Title Deeds from the borrowers. It was also argued that in case of factory shed no. 83D, Sector37, Udyog Vihar, Gurgaon, obtained as security, it was so obtained on allotment letter alone (without title deed), by A4 and said property was successfully auctioned on letter of allotment alone by bank and Rs 85 lacs were recovered.
25. Ld. Counsels for accused persons have prayed for acquittal of the accused persons for the offences charged stating that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt.
APPRECIATION OF EVIDENCE
26. PW15 Sh. C.R. Chandra Mouli deposed that while posted as Chief Vigilance Officer at Vijaya Bank head office Banglore, he had made a complaint dated 03/06/2009 Ex. PW15/A (D1) to CBI, which was based on the investigation report of Field Vigilance Officer and after having satisfied himself that a fraud has been committed on the bank prima facie, and on the instructions of chairman and executive director who also agreed with his (PW15) conclusion.
27. PW13 Sh. Raj Mohan Shetty, Retired AGM of Vijaya RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 19/89 CBI vs Vipul Sharma etc. Bank deposed that for availing cash credit miscellaneous (CCM) facility from Vijaya Bank, one should have existing current account for at least 36 months old and for grant of said facility bank first of all see the satisfactorily operation of the account, balance sheet of earlier years, profit and loss account, projection of business in future, sales tax and income tax return and market enquiries are also done to see the financial credibility of applicant before grant of said CCM facility. As per PW13, the relevant documents as proof of aforesaid financial position are also to be attached with the application for the CCM facility; such facilities are granted for the need of working capital requirement of the business of the applicant and for the such facilities bank accept immovable properties, term deposits, LIC policies, having substantial surrender value, stock in trade, other marketable securities like NSC etc. as security. As per PW13, guarantor is also required for the said facility and the bank also asked about the financial position of guarantors, trade license and also see the ITR of at least three years of the applicant and the guarantor, besides asking from the applicant, whether he is having any other account in other bank and in case of any other account in other bank, bank also asked for confidential opinion from other bank regarding the financial status of such applicant. PW13 also deposed that based on financial statements, loan processing officer process the loan papers and placed to the senior manager for further scrutiny of all papers to analyze; it is also analyzed whether the security and guarantee proposed by the borrower/applicant is acceptable to the bank for sanction of the credit RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 20/89 CBI vs Vipul Sharma etc. facility like CCM facility, which includes analyzing and security of guarantee by verification of the security and subsequently by obtaining valuation report from the approved valuer, legal opinion in respect of proposed security; subsequently after obtaining loan processing officer and senior manager, papers along with application are placed before branch credit committee, consisting of 34 officers, in case the sanctioning authority of limit of proposed loan is chief manager or above. As per PW13, all the members of said committee sign the minutes of the committee after reaching a conclusion about the proposal; thereafter, the proposal/recommendation of the committee is placed before competent sanctioning authority and the competent authority after going through the process note of the proposal and recommendation of the committee and acceptability of the security proposed and the guarantor, sanctioned or refuse the sanction loan after satisfying himself. As per PW13, if the competent authority for sanction of loan proposal of credit facility including CCM is senior branch manager, then tenure of such facility will be for a period of 18 months and for renewal of such CCM facility, senior branch manager has to adopt the same procedure as is applicable for new applicant of CCM limit. As per PW13, if the competent authority for sanction of loan proposal of credit facility including CCM is chief manager/AGM, then tenure of such facility will be for a period of 12 months and for renewal of such CCM facility, chief manager/AGM has to adopt the same procedure as is applicable for new applicant of CCM limit. PW13 deposed that CCM facility is sanctioned RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 21/89 CBI vs Vipul Sharma etc. on need basis and in case of renewal of said facility it has to be seen whether the party concerned had fulfilled the bank requirement and guidelines in the tenure of previous given CCM facilities. As per PW13, immovable properties are mortgaged by way of equitable mortgage by depositing of original title deed of immovable properties and in some cases allotment letters, agreement to mortgage, possession letter, handing over certificates, undertaking to mortgage the property after the registration, the NOC, from concerned authorities, who have allotted the properties or have charge over the properties, from the borrower/applicant and after grant/sanction of CCM facilities, branch has to obtain the original documents as per bank guidelines and also the original of the securities offered, before release of the amount from such accounts. PW13 deposed that in order to ensure that CCM facilities sanctioned were utilized for the purpose for which it were sanctioned is to be supervised by way of post sanction follow up action by the loan department and if any abnormalities are noticed, then these abnormalities are to be brought into the knowledge of sanctioning authority of the branch for necessary action.
28. PW13 deposed that concurrent audit is done by External Auditors allotted by Regional office, on monthly basis in respect of all accounts including accounts availing CCM facilities as per bank guidelines, besides this branch inspector is also to do the inspection once in a year and the report of concurrent auditor is brought and handed over RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 22/89 CBI vs Vipul Sharma etc. to the branch head i.e. chief manager or Asst. General Manager, as the case may be and whenever any abnormality is brought into the knowledge of Chief Manager or AGM of the branch, then he will discuss it with the loan department and direct them to take corrective measures which include obtaining of deficient documents and in case the transactions are observed to have not been properly in the concerned account enjoying CCM and other facilities then, the terms and conditions which were not fulfilled were/are got to be made fulfilled or otherwise the granted facility including CCM is recalled.
29. PW13 also deposed that mortgage loan account (ML account) is given against the mortgage of immovable property, the said loan is either given for acquiring property or business purpose and for grant of sanction of ML account all procedure of sanction of CCM facilities is adopted and the quantum of loan amount in respect of aforesaid ML account is decided on the basis of annual income of applicant and in case the said loan account is for acquiring immovable property then title deed of the said immovable property are secured as prime security and such loan is a term loan payable in installments for a specific period.
30. PW13 also deposed that over drawing facility to a borrower for a small scale industry may be allowed upto 20 per cent of the existing limit on the request of the borrower for the business requirements; such RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 23/89 CBI vs Vipul Sharma etc. request of the borrowers are always in writing; for an overdraft of more than 20% of the existing limit, approval of the competent authority is required to be obtained before sanction; for that from the concerned branch OD report is required to be submitted to the competent authority at Regional Office.
31. From the bank record, PW13 inter alia gave document D 164 to IO which included the document MR1141/10, part of Ex PW13/E (colly) and it was the process note for proposal of CCM Limit of Rs 50 lacs sanctioned by A4 to M/s Jeevan Fashions, proprietor A1 on 06/12/2005 against security of (a) EMDTD of property/factory shed no. 83D, Udyog Vihar, Phase VI, Gurgaon, (b) assignment of three LICs Policy sums and (c) Hypothication of Plant and Machinery valued at Rs 18.18 lacs. Intimation of sanction of said CCM Limit of Rs 50 lacs was conveyed to A1 vide letter Ex PW17/A (D89) dated 07/12/2005 by Branch Manager of Vijaya Bank and signatures of A1 as proprietor of M/s Jeevan Fashions are at point B with stamp impression of M/s Jeevan Fashions. Ex PW17/A also find mention of A3 as guarantor and EMDTD of shed no. 83D, Udyog Vihar, PhaseVI, Gurgaon, Haryana. Promissory Note Ex PW17/B (D90), Memorandum of Agreement Ex PW20/D (colly) (D92), Hypothecation Agreement Ex PW20/E (colly) (D93), Consent Letter for disclosure of information to CIBIL Ex PW20/T (D95) were inter alia executed by A1 on 07/12/2005 to avail the said facility of CCM Limit of Rs 50 lacs. Letter of Guarantee Ex RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 24/89 CBI vs Vipul Sharma etc. PW20/F (colly) (D94), Consent Letter for disclosure of information to CIBIL (D96), Agreement to Mortgage property/shed no. 83D, Udyog Vihar, PhaseVI, Gurgaon, Haryana Ex PW20/U1 (D97), Undertaking Ex PW20/U2 (D98), Affidavit Ex PW20/U3 (D99) and Memorandum Ex PW20/U4 (D100) having in its schedule mortgaged property description as shed no. 83D, Udyog Vihar, PhaseVI, Gurgaon, Haryana, were inter alia executed on 07/12/2005 by A3 as guarantor to aforesaid CCM Limit of Rs 50 lacs availed by A1, proprietor of M/s Jeevan Fashions.
32. In terms of loan application form Ex PW17/C (D4), A1 as proprietor of M/s Jeevan Fashions applied for CCM Limit of Rs 60 lacs for one year with the mention of EMDTD of factory shed no. 83D, Udyog Vihar, Gurgaon as primary security and hypothication of book debts as collateral security and A3 as guarantor. Vide Process Note Ex PW17/D (D5), the CCM Limit of M/s Jeevan Fashions, proprietor A1 previously accorded as Rs 50 lacs vide sanction, part of Ex PW13/E (colly), was enhanced to Rs 60 lacs by A4 as AGM of Vijaya Bank on 08/02/2007. Intimation of enhancement of CCM Limit of Rs 60 lacs was communicated vide letter Ex PW17/E (D6) dated 08/02/2007 to A1 being proprietor of M/s Jeevan Fashions. Promissory Note dated 08/02/2007 Ex PW20/U5 (D101), Letter of Repayment dated 08/02/2007 Ex PW20/U6 (D102), Memorandum of Agreement dated 08/02/2007 (D103), Hypothecation Agreement dated 08/02/2007 Ex RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 25/89 CBI vs Vipul Sharma etc. PW20/U8 (D104) were inter alia executed by A1 as proprietor of M/s Jeevan Fashions to avail enhanced CCM Limit of Rs 60 lacs. Letter of Guarantee dated 08/02/2007 Ex PW20/U9 (D105) were executed by A 2 and A3 who stood guarantors for such CCM Limit of Rs 60 lacs availed by A1 as proprietor of M/s Jeevan Fashions.
33. Vide Process Note Ex PW17/J (D11) previously sanctioned Limit of CCM in account 600606011000011 was enhanced from Rs 60 lacs to Rs 110 lacs on 29/12/2007 by Sh K. Rajeev Shetty, the then Chief Manager (not prosecuted for want of sanction). To avail said enhancement of CCM Limit to Rs 110 lacs, A1 as proprietor of M/s Jeevan Fashions inter alia executed Promissory Note dated 29/12/2007 Ex PW20/V (D106), Consideration Receipt dated 29/12/2007 Ex PW20/W (D107), Letter of Proprietorship dated 29/12/2007 Ex PW20/X (D108), Letter of repayment dated 29/12/2007 Ex PW20/Y (D109), Memorandum of Agreement dated 29/12/2007 Ex PW20/Z (D100), Hypothecation Agreement dated 29/12/2007 Ex PW20/AA (D111), Notices of Assignment of LIC Policy dated 29/12/2007 Ex PW20/CC (colly) (D113), Letters of Lien dated 29/12/2007 Ex PW20/EE (colly) (D115). Letter of Guarantee dated 29/12/2007 Ex PW20/BB (D112), Letters of Authority dated 29/12/2007 to pay premium of Life Insurance Policy Ex PW20/DD (D114), part of Ex PW20/EE (colly), Memorandum dated 29/12/2007 Ex PW20/FF (colly) (D119) were inter alia executed by A2 as guarantor for aforesaid enhanced CCM Limit of RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 26/89 CBI vs Vipul Sharma etc. Rs 110 lacs to M/s Jeevan Fashions proprietor A1. Ex PW20/BB (D
112), the Letter of Guarantee dated 29/12/2007 was also executed by A 1, A3 and Sh Vinod Sharma as guarantors.
34. As per PW19 Daniel Soy, Assitant Manager Vijaya Bank, vide loan application form Ex PW19/K (colly) (D42), A2 had applied for loan. Vide Process Note Ex PW16/A (D43), Mortgage Loan (ML) of Rs 20 lacs was sanctioned by A4 on 08/03/2006 in favour of A2, so as to purchase the property Industrial Shed no. 26D, Udyog Vihar, Phase VI, Gurgaon, Haryana. The sanction intimation letter of said loan of Rs 20 lacs Ex PW16/B (D44) signed by A4 at point A was delivered to A 2 and signatures of A2 on Ex PW16/B are at point B. Ex PW16/B finds mention of the security towards the said mortgage loan to be 'EMDTD of property Shed No. 26D, Udyog Vihar, PhaseVI, Gurgaon, Haryana valued Rs 48.23 lacs' as well as A1 to be the guarantor. To avail said mortgage loan A2 executed Demand Promissory Note dated 08/03/2006, Letter of Repayment dated 08/03/2006, Agreement dated 08/03/2006, all collectively Ex PW19/O (colly) (D132). A1 as guarantor also executed letter of guarantee [part of Ex PW19/O (colly)] for said mortgage loan in favour of A2. Vide sanction intimation letter dated 07/02/2007, part of Ex PW19/P (colly) (D133) loan amount of Rs 4.53 lacs was sanctioned in favour of A2 as proprietor of M/s R.S Enterprises by hypothecation of industrial machine. To avail said loan of Rs 4.53 lacs, A2 executed Promissory Note dated 07/02/2007, Letter of Repayment dated RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 27/89 CBI vs Vipul Sharma etc. 07/02/2007, Agreement dated 07/02/2007, Hypothecation Agreement dated 07/02/2007, consent letter for disclosure of information to CIBIL dated 07/02/2007, all part of Ex PW19/P (colly). A1 stood guarantor for A2 in respect of said loan, vide letter of guarantee dated 07/02/2007 and as well executed consent letter for disclosure of information to CIBIL dated 07/02/2007, both said documents being part of Ex PW19/P (colly).
35. As per PW19 Sh Daniel Soy, Assistant Manager of Vijaya Bank, Delhi Cantt. Branch, loan application form Ex PW19/E (D25) dated 01/03/2007 was bearing signatures of A2 as proprietor M/s Elegant Fashion for availing CCM Limit of Rs 25 lacs and the name of A1 as guarantor. As per PW17 Parveen Gupta, the then Assistant Manager in Vijaya Bank, Delhi Cantt. Branch, process note Ex PW17/M (D26) was in respect of the CCM Limit of Rs 25 lacs sanctioned for period of one year by Sh D.R Kamath, Senior Branch Manager, for M/s Elegant Fashion, proprietor A2. Ex PW17/M bears signatures of A4 with date 20/03/2007 at point A below writing as, 'Perused'. To avail said CCM facility of Rs 25 lacs, Demand Promissory Note dated 20/03/2007, Letter of Repayment dated 20/03/2007, Memorandum of Agreement dated 20/03/2007, Agreement dated 20/03/2007 and consent letter for disclosure of information to CIBIL dated 20/03/2007, all part of PW20/JJ (colly) (D129) were executed by A2 as proprietor of M/s Elegant Fashion. Also, A1 as guartantor for A2 executed Letter of Guarantee dated 20/03/2007and consent letter for disclosure of RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 28/89 CBI vs Vipul Sharma etc. information to CIBIL dated 20/03/2007, both documents being part of Ex PW20/JJ (colly). The sanction intimation letter dated 20/03/2007 of said CCM Limit of Rs 25 lacs Ex PW17/N (D27) signed by Sh D.R Kamath at point A was delivered to A2 and signatures of A2 on Ex PW17/N are at point B. Ex PW17/N finds mention in column 3 of security as, 'continuing security of Factory Building 26D, Udyog Vihar, PhaseVI, Gurgaon, Haryana'.
36. As per PW17, process note Ex PW17/O (D28) was in respect of the sanction of adhoc limit of Rs 20 lacs for 45 days from 05/05/2007 by A4 as AGM in favour of M/s Elegant Fashion, proprietor A2.
37. As per PW19, Letter Ex PW19/F dated 07/05/2007 (part of D29) of A2 was on record finding mention of the request for sanction of adhoc limit of Rs 25 lacs and that she was enjoying the limit of Rs 25 lacs and her CCM Account 600606011000033 being already in said bank. As per PW17 and PW19, vide Process Note Ex PW17/P, Adhoc Limit of Rs 25 lacs for 90 days with effect from 20/06/2007 was sanctioned by Chief Manager Sh Rajeev Shetty (not prosecuted for want of sanction) in favour of M/s Elegant Fashion, proprietor A2. Ex PW17/P finds mention of the, 'continuing security of Factory Building 26D Udyog Vihar valued Rs 100 lacs' in the column of details of securities and value facility vise.
RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 29/89 CBI vs Vipul Sharma etc.
38. As per PW17, vide Memorandum Ex PW17/Q (D30) dated 04/01/2008, the existing CCM Facility of M/s Elegant Fashion, proprietor A2 having account no. CCM600606011000036 of Rs 25 lacs was enhanced to Rs 40 lacs by the then Chief Manager Rajeev Shetty (not prosecuted for want of sanction) on the recommendations of Sh D.R Kamath, the Senior Branch Manager. The sanction intimation letter Ex PW17/R (D31) dated 04/01/2008 of said renewal with enhancement of CCM Limit to Rs 40 lacs signed by Sh D.R Kamath at point A was delivered to A2 and signatures of A2 on Ex PW17/R are at point B as proprietor M/s Elegant Fashion and signatures of A1 at point C. A1 and A3 are mentioned as guarantors in Ex PW17/R. In the column of security in Ex PW17/R, it is mentioned inter alia of Continuing Security of EMDTD of landed property valued Rs 115.25 lacs already mortgaged in CCM Limit M/s Jeevan Fasions and the Continuing Security of EMDTD of landed property valued Rs 102.83 lacs already mortgaged in account 8361000002 of Rs 20 lacs with o/s Bal 15.79 lac. Promissory Demand Note dated 04/01/2008, Letter of Repayment dated 04/01/2008, Memorandum of Agreement dated 04/01/2008, Hypothecation Agreement dated 04/01/2008, Consideration Receipt dated 04/01/2008, Letter of Proprietorship dated 04/01/2008, Memorandum dated 04/01/2008, all part of Ex PW20/JJ (Colly) (D129) were executed by A2 as proprietor of M/s Elegant Fashion to avail said facility for renewal and enhancement of CCM Limit. Letter of Guarantee dated RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 30/89 CBI vs Vipul Sharma etc. 04/01/2008, part of Ex PW20/JJ (colly) (D129) was executed by A1 and A3 who stood guarantors for said facility availed by A2 as proprietor of M/s Elegant Fashion.
39. As per PW16 Sh Udai Kumar, the then Assistant Manager in Vijaya Bank, Delhi Cantt. Branch, vide process note Ex PW16/C (D37) dated 07/12/2006, Sanction of CCM Limit of Rs 25 lacs was accorded to R.S Enterprises, proprietor A2 and A1 and A3 stood guarantors thereof. For said limit, the primary security column in Ex PW16/C finds mention of continuing security of EMDTD of (a) Industrial Shed No. 83D, Sector37, Udyog Vihar, Gurgaon in the name of guarantor A3,
(b) continuing security of Factory Building at Jhadsa, HSIDC Shed in name of A2, (3) continuing security of LIC policies and (d) continuing security of Plant and Machinery. The sanction intimation letter dated 07/12/2006 of CCM Facility of Rs 25 lacs Ex PW16/D (D38) signed by Sh D.R Kamath at point A was delivered to A2 and signatures of A2 on Ex PW16/D are at point B. Ex PW16/D finds mention of 'EMDTD of handed property at Gurgaon already mortgage to CCM Limit', in the column 3 of security there. Demand Promissory Note dated 07/12/2006 Ex PW18/B (D131); Letter of Repayment dated 07/12/2006, Memorandum of Agreement dated 07/12/2006, Hypothecation Agreement dated 07/12/2006, Consent Letter for disclosure of information to CIBIL dated 07/12/2006, Memorandum dated 07/12/2006, all part of Ex PW18/C (colly) were executed by A2 as RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 31/89 CBI vs Vipul Sharma etc. proprietor of M/s R.S Enterprises to avail said CCM Facility of Rs 25 lacs. Letter of Guarantee dated 07/12/2006 and Consent Letter for disclosure of information to CIBIL dated 07/12/2006, part of Ex PW18/C (colly) were executed by A1 as guarantor for A2 for said CCM Facility of Rs 25 lacs.
40. As per PW19, loan application form for working capital limit Ex PW19/J (D41) was bearing signatures of A2 as proprietor R.S Enterprises and A1 and A3 as guarantors for availing CCM Limit of Rs 25 lacs for one year. Ex PW19/J finds mention of 'EMDTD of Factory Shed at D26, Udyog Vihar, Gurgaon' as primary security besides hypothecation of book debts as collateral security. As per PW16, in terms of Process Note Ex PW16/E (D39), Chief Manager K. Rajeev Shetty accorded sanction on 31/12/2007 for enhancement of existing CCM Limit of Rs 25 lacs to Rs 40 lacs for period of 12 months to M/s R.S Enterprises, proprietor A2 on the recommendation of Sh D.R Kamath, Senior Branch Manager. The sanction intimation letter of renewal with enhancement of CCM Facility of Rs 40 lacs Ex PW16/F (D40) in CCM Account no. 600606011000033 signed by Sh D.R Kamath at point A was delivered to A2 and signatures of A2 on Ex PW16/F are at point B as proprietor of M/s R.S Enterprises and signatures of A1 at point C as guarantor. For said limit, the security column in Ex PW16/F finds mention of continuing security of EMDTD of (1) Industrial Shed No. 83D, Sector37, Udyog Vihar, Gurgaon RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 32/89 CBI vs Vipul Sharma etc. valued Rs 115.25 lacs and (2) Factory Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon valued Rs 102.83 lacs and A1 and A3 as guarantors thereof. Demand Promissory Note dated 31/12/2007, Letter of Repayment dated 31/12/2007, Memorandum of Agreement dated 31/12/2007, Hypothecation Agreement dated 31/12/2007, Consideration Receipt dated 31/12/2007, Letter of Proprietorship dated 31/12/2007, all part of Ex PW19/M (colly) (part of D131) were executed by A2 as proprietor of R.S Enterprises to avail said Enhanced CCM Limit in account no. 600606011000033. Letter of Guarantee, part of Ex PW19/M (colly) (part of D131), was executed by A2 and A3 as guarantors for R.S Enterprises for availing said CCM Limit of Rs 40 lacs. Memorandum dated 31/12/2007, part of Ex PW19/M (colly) (part of D
131) was executed by A3 as guarantor confirming the title deeds deposited to secure debts by him (A3) owing to bank by M/s Jeevan Fashions would continue to secure debts also for M/s R.S Enterprises. Inspection Report Ex PW18/E of Sh D.R Kamath dated 26/12/2007 prepared on inspection of property Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon is also part of D131. As per PW19, Small Scale Industries Application Form for credit facilities of over Rs 15 lacs and upto Rs 1 Crores, Ex PW19/N (colly) (part of D131) dated 07/12/2006 was bearing signatures of A2 as proprietor of M/s R.S Enterprises for availing loan for working capital of Rs 25 lacs. As per Ex PW19/N (colly), A1 had stood guarantor in respect of securities therein mentioned of (1) continuing security of Factory Building and (2) RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 33/89 CBI vs Vipul Sharma etc. continuing security of Factory Building at Jhadsa valued Rs 100 lacs.
41. As per PW17, Process Note Ex PW17/T (D34) dated 09/01/2008 was bearing signatures of Sh D.R Kamath at point A on page
9. As per Ex PW17/T, CCM facility of Rs 40 lacs for 12 months to M/s R. K Finishing, proprietor A3 and the account number as 600606011000066, was recommended by Sh D.R Kamath, Senior Branch Manager and accorded on 10/01/2008 by Sh K. Rajeev Shetty, Chief Manager (not prosecuted for want of sanction). The sanction intimation letter of CCM Facility of Rs 40 lacs Ex PW17/U (D35) dated 11/01/2008 was delivered to A3 and signatures of A3 on Ex PW17/U are there as proprietor of M/s R.K Finishing and signatures of A1 and A2 are also there at points A and B respectively. As per PW20 Sh Jagdish Prasad, Demand Promissory Note dated 11/01/2008 of Rs 40 lacs, Memorandum of Agreement dated 11/01/2008, Hypothecation Agreement dated 11/01/2008, Letter of Proprietorship dated 11/01/2008, Consideration Receipt dated 11/01/2008, all part of Ex PW20/KK (colly) (D130) were executed by A3 for availing said CCM Limit of Rs 40 lacs. Letter of Guarantee, part of Ex PW20/KK (colly) (part of D130) was executed by A1 and A2 for standing guarantee in said CCM Facility of Rs 40 lacs availed by A3 as proprietor of M/s R.K Finishing.
42. As per PW17, Process Note Ex PW17/F (D7) dated 05/05/2007 was bearing signatures of A4 at point A and signatures of RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 34/89 CBI vs Vipul Sharma etc. Sh D.R Kamath at point B. As per Ex PW17/F, the adhoc CCM limit of Rs 25 lacs for a period of 45 days i.e., from 05/05/2007 to 20/06/2007 was sanctioned by A4 in favour of M/s Jeevan Fashions, proprietor A1.
43. As per PW17, Process Note Ex PW17/G (D8) dated 23/06/2007 was bearing signatures of Sh D.R Kamath at point A. As per PW19, Ex PW17/G, was bearing signatures of Chief Manager K. Rajeev Shetty at point B. As per Ex PW17/G, the adhoc CCM limit of Rs 50 lacs for three months was sanctioned by Chief Manager K. Rajeev Shetty in favour of M/s Jeevan Fashions, proprietor A1.
44. As per PW20, Jagdish Prasad, the document Ex PW20/A (D
21), the application for bank finance under 'Vijaya Wheels' was filled up by PW20 and was bearing signatures of Sh D.R Kamath, Senior Manger at point A as sanctioning authority. As per PW20/A, sum of Rs 1,38,000/ as motor vehicle loan was sanctioned by Sh D.R Kamath, Senior Manager on 22/03/2007 in favour of M/s Jeevan Fashions, proprietor A1. Sanction intimation letter Ex PW20/B (D22) dated 22/03/2007 signed by Sh D.R Kamath, Senior Manager was communicated to A1 as proprietor M/s Jeevan Fashions in token of which A1 signed there at point B. In terms thereof, Demand Promissory Note dated 22/03/2007, Letter of Repayment dated 22/03/2007, Hypothecation Agreement dated 22/03/2007, Agreement dated 22/03/2007, two Forms 29, two Forms 30, two Forms 34, two Forms 35, RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 35/89 CBI vs Vipul Sharma etc. Consideration Receipt dated 22/03/2007, Consent Letter for disclosure of information to CIBIL dated 22/03/2007 were executed by A1 as proprietor of M/s Jeevan Fashions which are part of Ex PW20/GG (colly) (D127). Dilbagh Singh Rathi executed Letter of Guarantee part of Ex PW20/GG (colly) (D127) as guarantor for said Motor Vehicle Loan in favour of A1 as proprietor M/s Jeevan Fashions.
45. As per PW9, Sh Vinod Sharma, document Ex PW9/B (D
23), the application for bank finance under 'Vijaya Wheels' was bearing his signatures as guarantor for the Motor Vehicle Loan of Rs 5,90,000/ sanctioned in favour of M/s Jeevan Fashions, proprietor A1 on 10/12/2007. As per PW19, signatures of Sh K. Rajeev Shetty, Chief Manager are at point B on Ex PW9/B. Accordingly, as per Ex PW9/B the said Motor Vehicle Loan of Rs 5.9 lacs was sanctioned by Sh K. Rajeev Shetty, Chief Manager. As per PW19, Sanction intimation letter D24 was signed by Sh K. Rajeev Shetty, Chief manager at point A there. As per D24, the intimation of sanction of Motor Vehicle Loan of Rs 5.9 lacs was communicated to A1 as proprietor M/s Jeevan Fashions in token of which A1 signed there at point C. In terms thereof, Demand Promissory Note dated 10/12/2007, Letter of Repayment dated 10/12/2007, Hypothecation Agreement dated 10/12/2007, Agreement dated 10/12/2007, Consideration Receipt dated 10/12/2007 were executed by A1 as proprietor of M/s Jeevan Fashions which are part of Ex PW20/HH (colly) (D128). Vinod Sharma excecuted Letter of RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 36/89 CBI vs Vipul Sharma etc. Guarantee dated 10/12/2007, Ex PW9/A and also part of Ex PW20/HH (colly) (D128) as guarantor for said Motor Vehicle Loan in favour of A1 as proprietor M/s Jeevan Fashions.
46. As per PW13, he had given documents (D149 {1 to 39}) i.e. original cheques in respect of account of M/s R.K Finishing (M 1095/10 to M1098/10), of M/s Jeevan Fashions, (M1060/10 to M 1071/10), of M/s R.S Enterprises, (M1072/10 to M1094/10) along with forwarding letter dated 29/05/2010, which are collectively Ex. PW13/M (colly) to CBI.
47. As per PW18 Sh Narender Singh, document D131 Ex. PW 18/B, which is the DP note dated 7/12/2006, for Rs. 25 lakhs and cheques D149(25) Ex. PW18/F6; D149(26) to (30) and D149(32) to (35), which are Ex. PW18/F7 to F11 and Ex. PW18/F12 to F15, respectively; D149(1),(3),(4),(5), (9), (12), (15 to 17) (19 to 21), which are Ex. PW18/F16 to F27 and D149(10) and (11) which are Ex. PW 18/F1 and F2; bear the stamp of bank of PW18 and PW20 Jagdish Prasad deposed that aforesaid cheques Ex. PW18/F16 to F21, Ex. PW 18/F1, F2, PW17/V1 to V4 (all part of D149), bear the signature of A 1 and other cheques out of D149 i.e. Ex. PW17/V5, V6, Ex. PW18/F 22 to F27, Ex. PW18/F3 to F15, bear the signature of A2.
RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 37/89 CBI vs Vipul Sharma etc.
48. A2 in her statement under Section 313 Cr.P.C stated that cheques Ex. PW17/V6, Ex. PW17(18)/F22, Ex. PW17(18)/F23, Ex. PW17(18)/F24, Ex. PW17(18)/F25, Ex. PW17(18)/F26, Ex. PW17(18)/F27, Ex. PW17(18)/F6, Ex. PW17(18)/F9, Ex. PW17(18)/F10 to Ex. PW17(18)/F15 did not bear her signatures, while the cheques Ex. PW18/F3, Ex. PW18/F4, Ex. PW18/F7 and Ex. PW18/F8 were bearing her signatures. A1 also stated so in his statement under Section 313 Cr.P.C. Cheques Ex PW17/V6, Ex. PW18/F22, Ex. PW18/F23, Ex. PW18/F24 and Ex. PW18/F25 bear signatures of A2 as proprietor of M/s R.S Enterprises overleaf which two signatures of A1 are there in token of receipt of the cash sums of Rs 11,58,000/; Rs 10,00,000/; Rs 20,00,000/; Rs 25,00,000/; Rs 16,00,000/ respectively on presentation of these bearer cheques dated 10/04/2007; 08/06/2007; 30/06/2007; 28/12/2007 and 11/06/2008 respectively. Cheques Ex. PW18/F26; Ex. PW18/F27; Ex. PW18/F6; Ex. PW18/F9; Ex. PW18/F10 to Ex. PW18/F15 bear signatures of A 2 as proprietor of M/s Elegant Fashions overleaf which two signatures of A1 are there in token of receipt of the cash sums of Rs 15,00,000/; Rs 5,00,000/; Rs 7,00,000/; Rs 7,00,000/; Rs 1,12,000/; Rs 1,40,000/; Rs 1,85,000/; Rs 5,00,000/; Rs 2,00,000/; Rs 16,00,000/ respectively on presentation of these bearer cheques dated 07/05/2007; 10/05/2007; 13/12/2007; 08/01/2008; 09/01/2008; 10/01/2008; 09/02/2008; 13/02/2008; 12/03/2008 and 13/03/2008 respectively.
RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 38/89 CBI vs Vipul Sharma etc.
49. As per PW19 Sh Daniel Soy, cheques D165 (i to iv), Ex. PW19/T1 to T4 were issued by A2 as proprietor of M/s R.S Enterprises and bear her signatures at point A and also two signatures of A1 at the back of these cheques at point B, in token of having received the amounts of Rs 16,00,000/; Rs 4,00,000/; Rs 21,00,000/ and Rs 9,00,000/ respectively against these bearer cheques on 07/12/2006; 12/07/2007; 25/10/2007; 13/12/2007 respectively.
50. PW17 and PW18 Narender Singh deposed that cheques D 149(2),(6),(7)(8)(13)(14), Ex. PW17/V1 to PW17/V6, were passed by the order of A4. Bearer cheques D149(2),(6),(7)(8), Ex. PW17/V1 to Ex PW17/V4 were of dated 09/01/2006; 07/03/2006; 10/03/2006; 12/03/2007 respectively are of sums Rs 9,00,000/; Rs 13,00,000/; Rs 13,00,000/; Rs 15,00,000/ respectively bearing signatures of A1 as proprietor M/s Jeevan Fashions overleaf which there are two signatures of A1 in token of having received the aforesaid sums of the cheques. Bearer cheques D149(13),(14), Ex. PW17/V5 and Ex PW17/V6 were of dated 08/02/2007 and 10/04/2007 respectively of sums of Rs 22,00,000/; Rs 11,58,000/ respectively bearing signatures of A2 as proprietor M/s R.S Enterprises overleaf which there are two signatures of A1 in token of having received the aforesaid sums of the cheques.
51. As per PW18, D149(10) and (11) Ex. PW18/F1 and F2, bear the stamp of his bank and PW20 Jagdish Prasad deposed that RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 39/89 CBI vs Vipul Sharma etc. aforesaid cheques Ex. PW18/F1, F2, bear the signature of A1. Bearer cheques D149(10) and(11), Ex. PW18/F1 and Ex PW18/F2 were of dated 08/06/2007 and 03/01/2008 respectively of sums of Rs 10,00,000/ each and bearing signatures of A1 as proprietor M/s Jeevan Fashion overleaf which there are two signatures of A1 in token of having received the aforesaid sums of the cheques.
52. As per PW18, cheques D149(22) Ex. PW18/F3; D 149(23) Ex. PW18/F4 were passed by Rajiv Shetty and D.R Kamath and whose signatures are point 'A'. Bearer cheques D149(22) and (23), Ex. PW18/F3 and Ex PW18/F4 were of dated 04/06/2007 and 13/06/2007 respectively of sums of Rs 8,50,000/; Rs 6,00,000/ respectively bearing signatures of A2 as proprietor M/s Elegant Fashions overleaf which there are two signatures of A1 in token of having received the aforesaid sums of the cheques.
53. Bearer cheque D149(38), part of Ex. PW13/M (colly) was of date 17/03/2008 of sum Rs 5,20,000/ bearing signatures of A3 as proprietor M/s R.K Finishing overleaf which there are two signatures of A1 in token of having received the aforesaid sum of the cheque.
54. As per Ex PW13/L (colly), (1) the statement of account no. 600606011000011 of CCM Account in the name of M/s Jeevan Fashions, proprietor A1 the balance outstanding as on 21/03/2009 was RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 40/89 CBI vs Vipul Sharma etc. Rs 1,30,05,199/; (2) the statement of account no. 600608411000054 of LMV Account in the name of M/s Jeevan Fashions, proprietor A1 the balance outstanding as on 22/12/2008 was Rs 77,100/; (3) the statement of account no. 600608411000081 of LMV Account in the name of M/s Jeevan Fashions, proprietor A1 the balance outstanding as on 19/03/2009 was Rs 17,672; (4) the statement of account no. 600608361000002 of ML Account in the name of A2 the balance outstanding as on 07/02/2009 was Rs 5,75,944/; (5) the statement of account no. 600609041000018 of SL Account in the name of A2 the balance outstanding as on 07/01/2009 was Rs 2,42,063/; (6) the statement of account no. 600606011000036 of CCM Account in the name of M/s Elegant Fashions, proprietor A2 the balance outstanding as on 31/01/2009 was Rs 43,32,889/; (7) the statement of account no. 600606011000033 of CCM Account in the name of M/s R.S Enterprises, proprietor A2 the balance outstanding as on 02/02/2009 was Rs 40,36,041/ and (8) the statement of account no. 600606011000066 of CCM Account in the name of M/s R.K Finishing, proprietor A3, the balance outstanding as on 31/01/2009 was Rs 41,00,545/. The total outstanding sum of aforesaid accounts was accordingly Rs 2,63,87,453/.
55. PW2 Pramod Gaur deposed that he was introduced to A1 and A2 by A3 at the time of deal of shed no D26, Udyog Vihar, Phase VI, Gurgaon between PW3 and A2. In consideration of purchase of plot no. D26 Udyog Vihar, Phase-VI, Gurgaon, Haryana, PW3 Archana RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 41/89 CBI vs Vipul Sharma etc. Gaur issued three cheques Ex. PW3/A to Ex PW3/C in favour of Satyavir Yadav. PW6 Sh Anupam Goel, Officer, ABN Amro Bank had handed over cheques Ex PW3/A, Ex PW3/B and Ex PW3/C from bank record to CBI officials on 13/04/2010 which were seized vide production cum seizure memo Ex PW6/A (D80) by PW26 SI J.B Lakra. PW7 Sandeep Kumar Singh Chauhan, Assistant Manager, The Federal Bank Ltd handed over to PW26 SI J.B Lakra the original payinslips (1) of Rs. 5 lakhs dated 06/03/2003 Ex PW7/B (D85); (2) of Rs. 3 lakh dated 25/04/2003 Ex PW7/C (D86) and (3) of Rs. 6 lakh, dated 22/4/2003 Ex PW7/D (D87) which were seized by PW26 vide production cum seizure memo Ex. PW7/A (D84). PW3 deposed that she had received Rs. 25 lacs from A2 and executed agreement to sell Ex. PW3/D (D46) dated 07/02/2006 in favour of A2 and after selling of the shed, the same was transferred directly in the name of A2 by HSIIDC. PW3 also deposed that her husband PW2 acted as her power of attorney during the deals with PW5 Sh Satyaveer Yadav. Ex PW3/D bears the signatures of PW3 and A2 as parties to the agreement and signatures of A3 and A1 as witnesses. PW5 Satyavir Yadav deposed that he had sold the plot/shed bearing no. D26 Udyog Vihar, Phase-VI, Gurgaon, Haryana measuring 315.86 Sq. mt. to PW3 Archana Gaur vide agreement to sell Ex. PW 2/B dated 06.03.2003 and also made endorsement Ex. PW5/A in respect of receipt of full and final payment against said agreement to sell Ex. PW2/B. PW5 also deposed that the letter of intent Ex. PW5/B was issued in his favour by HSIIDC. PW5 further deposed that for execution RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 42/89 CBI vs Vipul Sharma etc. of sale deed of aforesaid shed, permissions were required from HSIIDC but PW3 did not get the permission therefore sale deed in her favour could not be executed by him and on request of PW3, PW5 directly executed the sale deed, Ex. PW5/D (D64) in favour of A2. PW5 also deposed that before execution of sale deed in favour of A2, as per requirement of HSIIDC PW5 got executed a conveyance deed Ex. PW 5/C (D63) in respect of aforesaid shed in his favour from HSIIDC. PW5 also deposed that the possession letter, Ex. PW5/E (D59) was also given by him to A2 on day of execution of sale deed in her favour that is on 25/01/2008. PW5 also deposed that he got executed conveyance deed in respect of aforesaid shed from HSIIDC only after payments of all the installments which were completed in 4/5 years. PW10 Sh Bishan Chand and PW11 Sh Mahesh Kumar Chauhan deposed that they were witnesses of Conveyance Deed Ex PW5/C (D63) and Sale Deed Ex. 5/D (D64) and both the documents bear their signature as witnesses and PW12, Sahab Khan had signed these documents on behalf of HSIIDC, which were prepared by him and executed by Estate Officer Sh. Dilbagh Singh Dahiya on behalf of HSIIDC.
56. As per PW 12 Sh Sahab Khan, Manager Accounts of HSIIDC, in case the allottee wants / requests for subsequent NOC with regard to the plot / shed on which he had already taken the NOC from Haryana State Industrial and Infrastructure Development Corporation (HSIIDC), the allottee / applicant has to produce clearance from the RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 43/89 CBI vs Vipul Sharma etc. earlier bank with which the said plot / shed is already mortgaged and it is only thereafter receiving of clearance from the previous / earlier bank, the Haryana State Industrial and Infrastructure Development Corporation (HSIIDC) can issue subsequent NOC for taking loan from other bank against the said plot / shed.
57. PW24 Sh Indersain Baluja, Senior Manager, Syndicate Bank, I.B Branch, F40, Connaught Place deposed that the documents D 51 to D87 are the documents pertaining to the grant of credit facility to M/s R.S Enterprises and Elegant Fashion, whose proprietor was A2 and A1 and A3 stood guarantors for the said facilities. PW24 also deposed that said documents D52 to D61, part of Ex PW8/A (colly); D65 Ex PW20/K and also part of PW8/A (colly); D69 Ex PW20/N; D73 Ex PW20/P; D74 Ex PW20/Q bears the signature of A2. PW24 also deposed that documents D66 Ex PW20/L and also part of Ex PW8/A (colly) at point A; D68 Ex PW20/M at point B; D71 Ex PW20/O at point A; D73 Ex PW20/P at point B; D74 Ex PW20/Q at point B; D75 Ex PW20/R at point A and D76 Ex PW20/S at point A bear the signature of A1. PW24 also deposed that documents D66 Ex PW20/L at point B; D70 Ex PW23/A at point A; D74 Ex PW20/Q at point D and D76 Ex PW20/S at point B bear the signature of A3. PW24 also deposed that D72 Ex PW23/B was filled up by him with his signature at point A and D77 Ex PW23/C also bears his (PW24) endorsement and signature at point B. PW24 also deposed that A1, A2 and A3 had RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 44/89 CBI vs Vipul Sharma etc. signed on the bank documents in his (PW24) presence.
58. PW22 Sh Suresh Chand Jain, Panel Valuer of Syndicate Bank deposed that he visited the site of Industrial Shed 26D, PhaseVI, Udyog Vihar, Gurgaon on 04/02/2008 for inspection and valuation and has proved his valuation report with photographs dated 06/02/2008, part of Ex PW8/A (D54).
59. PW8 Sh Ramesh C. Pandey, Senior Branch Manager, Syndicate Bank deposed that he handed over the documents Ex. PW8/A (colly), vide seizure memo dated 20/02/2010 (D51), from the bank record of Syndicate Bank, International Business Branch, at F40, Connaught Place, New Delhi1. As per said memo D51, documents D 52 to D66 were seized.
60. PW1 Sh Suresh A.S, Manager in Syndicate Bank, International Branch deposed that as per the instructions of PW26 Inspector J.B Lakra, he (PW1) had visited CBI office, New Delhi on 25/02/2010 and handed over the documents D68 to D77 mentioned in seizure memo Ex PW1/A (D67) to PW26 .
61. PW25, Sh Ramesh Rajani, Legal Advisor on the panel of Syndicate bank, New Delhi deposed that he inspected the documents by visiting the office of S.R. Gurgaon and scrutinized the original RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 45/89 CBI vs Vipul Sharma etc. documents and thereafter had given a legal opinion dated 06/05/2008, part of D53, part of Ex. PW8/A (colly), in respect of industrial shed no. 26D, Udyog Vihar, Phase VI, Gurgaon. PW25 in his opinion mentioned that it would be possible for the bank to take the property industrial shed no. 26D, Udyog Vihar, Phase VI, Gurgaon as security by way of the equitable mortgage by deposit of the original Sale Deed in favour of A 2, original Conveyance Deed executed by HSIIDC in favour of Satyaveer Yadav, Letter of reallotment dated 28/04/2008 issued by HSIIDC in favour of A2, on obtaining prior written consent from HSIIDC for mortgage of said property in favour of Syndicate Bank, on obtaining affidavit from A2 detailed therein with the mention of the said property to be free from charge, encumbrances and litigation.
62. PW23 Sh. Parveen Kakkar, Manager Syndicate Bank deposed that he had worked in Syndicate Bank, International Business Branch, F40, Connaught Place, New Delhi, from February 2007 till October 2009 and that loan application form Ex PW20/M (D68) dated 01/12/2007 in the name of M/s R.S. Enterprises, proprietor A2 for advance was filled in the said bank by A2, whose signature was taken by PW23 at point A and the said application was processed by PW23 during discharge of his duty and PW23 had also taken the signatures of A1 and A3 on the said form as guarantors at point B and C respectively. PW23 also deposed that document Ex. PW20/N (D69) pertaining to assets and liabilities of A2 proprietor of M/s R.S RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 46/89 CBI vs Vipul Sharma etc. Enterprises and Elegant Fashion, which is annexure to Ex. PW20/M, was filled in aforesaid Syndicate Bank by A2 and signatures of A2 were at point A and the said Ex. PW20/N, also bears the signature of PW23 at point B. PW23 further deposed that document Ex. PW23/A (D
70) pertaining to assets and liabilities statement of A3, guarantor and proprietor of M/s S.K Apparels and R.K Finishing, which is annexure to Ex. PW20/M, was filled in aforesaid Syndicate Bank by A3 and signatures of A3 were at point A there and the said Ex. PW23/A also bears the signature of PW23 at point B. PW23 also deposed that document Ex. PW20/O (D71) pertaining to assets and liabilities statement of A1, proprietor of M/s Jeevan Fashion, which is Annexure to Ex. PW20/M was filled in aforesaid Syndicate Bank by A1 and signatures of A1 are at point A and the said Ex. PW20/O also bears the signature of PW23 at point B. PW23 further deposed that document Ex. PW23/B (D72) pertaining to internal processing note of Syndicate Bank dated 10/12/2007 in respect of advance facility in favour of R.S Enterprises, proprietor A2 was in the handwriting of Sh I.S Baluja, the then Senior Manager, Syndicate Bank, IB Branch, New Delhi and on this application Sh. T. Prakash Shetty, AGM had sanctioned a limit of Rs. 25 lacs, whose signature is at point C. PW23 deposed that Ex. PW20/P (D
73) for advance in the name of M/s Elegant Fashion was filled in aforesaid Syndicate Bank by A2 and signatures of A2 are at point A and A1 and it also bears signature of A1 and A3 at point B and C respectively, who signed in the presence of PW23. PW23 also deposed RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 47/89 CBI vs Vipul Sharma etc. that document Ex. PW20/Q (D74) pertaining to assets and liability statement of A2, proprietor of M/s Elegant Fashion and R.S Enterprises, which is annexure to Ex. PW20/P, was filled in aforesaid Syndicate Bank by A2, signatures of A2 are at point 'A' there and signature of A1 and A3 in the capacity of guarantors are there at point B and D respectively. Ex PW20/Q also bears signatures of PW23 and T. Parkash Shetty, the then AGM at point C and E respectively. Ex PW20/Q finds mention of the property Industrial Shed 26D, PhaseVI, Udyog Vihar, Gurgaon of market value of Rs 1.26 Crores as well. PW23 also deposed that document Ex. PW20/R (D75) pertaining to assets and liability statement of A1, proprietor of M/s Jeevan Fashion, as guarantor, which is annexure to Ex. PW20/P was filled in aforesaid Syndicate Bank by A 1 and signatures of A1 are at point A and the said Ex. PW20/R, also bears the signatures of PW23 at point B and signatures of T. Parkash Shetty at point C. PW23 also deposed that document Ex. PW20/S (D
76) pertaining to assets and liability statement of A3, proprietor of M/s R.K Finishing and JMD Enterprises, as guarantor, which is annexure to Ex. PW20/P, was filled in aforesaid Syndicate Bank by A3 and signatures of A3 are at point B and signatures of A1 are at point A, which was struck off lateron. The said Ex. PW20/S, also bears the signature of PW23 at point C and signature of Sh. Parkash Shetty at point D. PW23 also deposed that document Ex. PW23/C (D77) was pertaining to internal processing note of Syndicate Bank dated 21/5/2008 in respect of advance facility in favour of M/s Elegant Fashion of which RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 48/89 CBI vs Vipul Sharma etc. A2 was proprietor. Ex PW23/C bears the signature of PW23; Sh. Baluja, the then Senior Manager, Syndicate Bank, IB Branch and of Sh T. Parkash Shetty, who had sanctioned the limit of Rs. 50 lakhs, on terms and conditions mentioned in the process note, at point A to C respectively. In Ex PW23/C, there is clear mention of collateral security as UREM of Industrial Shed 26D, PhaseVI, Udyog Vihar, Gurgaon of value of Rs 126 lacs as per valuation report dated 06/02/2008 of Sh Suresh Chand Jain, Panel Valuer. PW23 further deposed that letter handing over title deed of property Ex. PW20/G (D60) dated 06/05/2008, also part of Ex. PW8/A (colly) pertaining to internal documents of the Branch for handing over of title deed of the property was prepared at the time of handing over of the title deed of property Industrial Shed no. 26D, Udyog Vihar, Phase VI, Gurgaon, Haryana, and document D60 also bears signature of A2 at point A and vide document Ex. PW20/H (D61), the aforesaid property was mortgaged by deposit of Title Deeds with Syndicate Bank on 16/06/2008 at 4 pm, whereas Ex PW20/H also bears signatures of A2 at point A. Ex PW20/G (D60) finds mention of the declaration of A2 that property Industrial Shed no. 26D, Udyog Vihar, Phase VI, Gurgaon, Haryana was free from charge, alienation or encumbrance of any kind. Ex. PW20/J (D62) dated 16/06/2008 is confirmation of creation of second/subsequent mortgage of property Industrial Shed no. 26D, Udyog Vihar, Phase VI, Gurgaon, Haryana bearing signatures of A2 as proprietor of M/s Elegant Fashion and M/s R.S Enterprises at point A for grant of RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 49/89 CBI vs Vipul Sharma etc. additional credit facility of Rs 25 lacs. PW23 also deposed that documents Conveyance Deed Ex PW5/C (D63) of Industrial Shed no. 26D, Udyog Vihar, Phase VI, Gurgaon, Haryana executed by HSIIDC in favour of PW5; Sale Deed Ex PW5/D (D64) dated 25/01/2008 executed by PW5 in favour of A2 in respect of Industrial Shed no. 26D, Udyog Vihar, Phase VI, Gurgaon, Haryana were submitted in aforesaid Syndicate Bank by A2 while grant and processing of the facilities of loan. As per PW23, Hypothecation Deed Ex. PW20/K (D65) dated 16/06/2008 inter alia in respect of Property no. 26D, Udyog Vihar, Phase VI, Gurgaon, Haryana was got executed by aforesaid bank from A2, whose signatures are at point A as proprietor of M/s Elegant Fashion. As per PW23, guarantee agreement Ex. PW20/L (D66) dated 16/06/2008 was got executed by his bank from A1 and A3, in the capacity of guarantors and A1 and A3 signed Ex PW20/L at points A and B respectively. Photograph of A1 is also stapled on Ex. PW20/L at point X. As per PW23, sanction letter dated 22/05/2008, D52, part of Ex. PW8/A (colly) was in favour of M/s Elegant Fashion, proprietor A2 bearing the signature of T. Parkash Shetty, the then AGM of the Syndicate Bank and signature of A2 as proprietor of M/s Elegant Fashion at points A and B respectively. To avail the credit facilities aforesaid from Syndicate Bank, Connaught Place neither A2 as borrower nor A1 and A3 as guarantors for A2 disclosed/revealed either in any of the documents executed by them or to any of the officials of Syndicate Bank, Connaught Place that the property i.e., Industrial RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 50/89 CBI vs Vipul Sharma etc. Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon proposed, tendered and pledged as security with Syndicate Bank, Connaught Place was previously tendered as security with Vijaya Bank Delhi Cantt. branch for the credit facilities and loans availed by the accused from there or as to they being required to deposit the title deeds of the said immovable property tendered as security for completing the EMDTD. Even A3 did not reveal in any of the documents executed by him or to any official of Syndicate Bank, Connaught Place that property i.e., factory shed no. 83 D, Sector37, Udyog Vihar, Gurgaon was tendered as security with Vijaya Bank Delhi Cantt. branch for the credit facilities and loans availed from there by arraigned accused.
63. PW21, Sh M. Kesav Rao, Chief Manager Syndicate Bank, Regional Office deposed that as per record the overdraft account of M/s Elegant Fashion of Rs. 50 lakh, became non performing asset (NPA) on 31/03/2009, due to nonservicing of interest and continuous exceeding in the account.
64. PW9 Sh Vinod Sharma, a Government Contractor was holder of various accounts in Vijaya Bank, Delhi Cantt. branch including the overdraft account in the name of M/s Lakshmi Builders, saving accounts of himself, his wife, a current account of MVD Infotech where he was Director. As per PW9, though he had no business terms or relations with A1 to A3, but at the asking of the branch head of Vijaya RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 51/89 CBI vs Vipul Sharma etc. Bank, Delhi Cantt. branch, he issued cheques in favour of M/s Jeevan Fashions and M/s R.S Enterprises so as to bring the accounts of these concerns within the sanctioned limits at the times when these concerns were not having money. As per PW9, he had affixed his photographs on several applications given in bank for various purposes including loans, overdrafts, account opening, etc. which may have been removed and used for loan application form of M/s Jeevan Fashions Ex PW17/C (D
4). As per PW9, his name and signatures were not in Ex PW17/C (D4). PW9 deposed that for car loan of Rs 5.9 lacs obtained by A1 from Vijaya Bank, Delhi Cantt. branch, he (PW9) had stood guarantor vide letter of guarantee Ex PW9/A on asking of PW20 Sh Jagdish Prasad, the Clerk of the said bank who at the time of the execution of the said document was posted in other bank branch. PW9 deposed that since the loan in the aforesaid vehicle loan account was not being repaid as per schedule, A1 told him of the vehicle under hypothecation had met with an accident and A1 was not having money even to make payment to the workshop where the vehicle was for repairs and there upon PW9 made payment of repairs of the said vehicle to workshop from own pocket, got arrangements made for the sale of car purchased by the loan availed and the sale proceeds were deposited with Vijaya Bank, Delhi Cantt. branch while the balance remaining was left to be adjusted from the other account of A1. As per PW9, he stood guarantor for M/s Jeevan Fashions, proprietor A1 in terms of loan application Ex PW9/B (D23) dated 10/12/2007. PW9 also deposed that he issued cheque Ex PW9/C RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 52/89 CBI vs Vipul Sharma etc. (MR 13/11) dated 28/12/2007 of Rs 40 lacs drawn on Vijaya Bank, Delhi Cantt. branch in favour of M/s R.S Enterprises in his capacity of proprietor of M/s Lakshmi Builders on the request of Sh Rajeev Shetty, Branch Head of Vijaya Bank as there was some problem in the account of A1 for which he (A1) stated that there was some excess drawn in the limit in his account and Sh Rajeev Shetty told PW9 that A1 will be returning the money of PW9 within 2/3 days after the closing date, which closing date comes in every quarter in the bank. As per PW9, later after few days his aforesaid money was returned in his account. PW9 further deposed that he had already taken the overdraft facility to the limits sanctioned and told it to said Sh Rajeev Shetty that he (PW9) was not having any further limit of overdraft facility to get aforesaid cheque of Rs. 40 lacs cleared but yet the said cheque of Rs 40 lacs was cleared from account of M/s Lakshmi Builders beyond the overdraft limits and for it overdraft limits were exceeded. PW9 also stated that as Director of MVD Infotech Private Limited, he issued cheque Ex PW9/D (MR 15/11) dated 29/03/2008 of Rs 16 lacs drawn on Vijaya Bank, Delhi Cantt. branch in favour of M/s R.S Enterprises on the request of Sh Rajeev Shetty, Branch Head of Vijaya Bank, as there was some problem in the account of A1 for which he (A1) stated that there was some excess drawn in limit in his account and Sh Rajeev Shetty told him (PW9) that money of PW9 will be returned within 2/3 days after the closing date and later after few days, said money was returned in the account of PW9. As per PW9, whatever money aforesaid he had given for RS Enterprises and RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 53/89 CBI vs Vipul Sharma etc. Jeevan Fashions and Elegant Fashions, to A1, he had so given on the asking of the branch head of Vijaya Bank, Delhi Cantt as his accounts were very old and whenever there were problems in the accounts of A1 so he used to help them for few days so as to keep the records of the said accounts satisfactory, so as to bring those accounts within limits during quarterly closing periods, etc. RELEVANT LAW
65. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express or partly implied. Even Section 10 of the Evidence Act RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 54/89 CBI vs Vipul Sharma etc. introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act done by one is admissible against the co conspirators.
66. In "Shivanarayan v. State of Maharashtra", AIR 1980 Supreme Court 439, it was held that "It is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design."
67. While speaking for the Bench it is held by Hon'ble Mr. Justice P.Venkatarama Reddi in State (NCT of Delhi) vs. Navjot Sandhu, AIR 2005 SUPREME COURT 3820 as follows:
"We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle."
RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 55/89 CBI vs Vipul Sharma etc.
68. In the case of State of Maharashtra and Others vs Som Nath Thapa and Others, (1996) 4 SCC 659, it was held that "To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."
69. Section 420 of Indian Penal Code deals with cheating and dishonestly inducing delivery of property. The offence of cheating is made of two ingredients. Deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property.
70. It had been held in the case of "Ram Narain Poply Vs. CBI", AIR 2003 SC 2748 that deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property, need not be by express words, but it may be by conduct or implied in the nature of the transactions itself.
71. The word, "dishonestly" as defined in Section 24 of IPC RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 56/89 CBI vs Vipul Sharma etc. implies a deliberate intention to cause wrongful gain, or wrongful loss and when this is coupled with cheating and delivery of property, the offence is punishable under Section 420 of IPC. In the case of "Tulsi Ram Vs. State of UP", AIR 1963 SC 666, it was held that there are two facets of the definition, "dishonestly", namely the intention of causing wrongful gain to one person or wrongful loss to another, and it is enough to establish the existence of one of them; the law does not require that both should be established.
72. The essential ingredients of Section 13 (1) (d) of the PC Act are (i) the person should be a public servant; (ii) he should have used corrupt or illegal means or otherwise abused his position as such public servant and obtained valuable thing(s) or pecuniary advantage for himself or for any other person or (iii) he should have obtained valuable thing(s) or pecuniary advantage for himself or for any other person without any public interest.
73. In Section 13(1)(d) of the P.C Act, the word used is 'obtained'. The Apex Court in the case of "C.K. Damodaran Nair v Govt. of India" [(1997) 9 SCC 477] had the occasion to consider the word 'obtained' used in Section 5 of PC Act, 1947, which is now Section 13(1)(d) of the Act of 1988. It was held in para 12 thus:
"12. The position will, however, be different so far as an offence under Section 5 (1)(d) read with Section 5(2) of the Act is concerned. For RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 57/89 CBI vs Vipul Sharma etc. such an offence prosecution has to prove that the accused `obtained' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b) and not under Section 5(1)(c), (d) or (e) of the Act. `Obtain' means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1) (d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be,established by proof of either `acceptance' or `obtainment'"
74. In Criminal Appeal Nos. 482/02, 509/02 & 536/02 titled Runu Ghosh vs C.B.I.; P. Rama Rao vs C.B.I; Sukh Ram vs C.B.I, it was held by HON'BLE MR. JUSTICE S. RAVINDRA BHAT and HON'BLE MR. JUSTICE G.P. MITTAL on 21/12/2011 that "A new offence (or subspecies, of the existing offence) has been carved out, in Section 13 (1) (d) (iii) which criminalizes, as "criminal misconduct" the act of a public servant, holding office, which results in someone else ("any person") benefitting by getting a valuable thing or pecuniary advantage, ―"without any public interest." There is no doubt that Parliament created this new offence of criminal misconduct, where abuse of office, or use of corrupt or illegal means by a public officer, is inessential to prove the crime. What the prosecution has to establish, in accordance with law, is that the public officer, obtained for someone else - not necessarily by abusing his office, or using corrupt or illegal means - pecuniary advantage or a valuable thing - without public interest."
Also was held that "161. This Appeal was received upon a reference to the Division Bench, as regards the true interpretation of Section 13 (1) (d) (iii). We have indicated the test applicable, i.e. when the decision or an act of a public servant, (which results in another obtaining pecuniary advantage RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 58/89 CBI vs Vipul Sharma etc. or valuable thing) be without public interest, namely, if that action of the public servant is the consequence of her or his manifest failure to observe those reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his or her duty to have adopted."
The test applicable was indicated as "However, the test always in such cases is whether the decision was such as someone acting reasonably, on the basis of the materials available, would have taken. The test of public interest is paramount; if it appears that the decision is taken without public interest in mind, and unreasonably or manifest disregard to the consequence that such act would be severe undermining of public interest, and that such decision would result in a third party obtaining pecuniary advantage, without public interest, the decision maker has to take responsibility for the consequences."
75. The core question that needs to be seen is as to whether there is sufficient legal evidence on record for the prosecution to prove the case against the arraigned accused within the ambit of Sections 120 B of IPC; 420 of IPC and Section 13 (1) (d) read with Section 13(2) of the Prevention of Corruption Act 1988.
76. For availing the CCM Limits, Mortgage Loan by A1, A2 and A3 from Vijaya Bank Delhi Cantt. branch, as detailed in the earlier part of this judgment, the documents detailed previously were executed by A1, A2 and A3 as borrowers and A1, A2 and A3 also as guarantors. The properties (1) Industrial Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon and (2) factory shed no. 83D, Sector37, Udyog RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 59/89 CBI vs Vipul Sharma etc. Vihar, Gurgaon were proposed, tendered as securities with Vijaya Bank Delhi Cantt Branch as detailed previously by A1, A2 and A3 for the credit facilities and loans availed by them from there, as detailed previously and A1, A2 and A3 were required to deposit the title deeds of these two immovable properties tendered as securities for completing the EMDTD. Not only A1, A2 and A3 together executed the documents detailed previously for credit facilities and loans availed by them from Vijaya Bank Delhi Cantt Branch but they also together executed the documents detailed previously for credit facilities and loans availed by A2 from Syndicate Bank Connaught Place Branch while to avail such credit facilities and loans at both these banks, A1, A2 and A 3 tendered as security the property Industrial Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon and it was concealed by them in Syndicate Bank, Connaught Place branch that factory shed no. 83D, Sector37, Udyog Vihar, Gurgaon was tendered as security by A3 with Vijaya Bank Delhi Cantt. branch to avail credit facilities and loans herein before said.
77. Of course, for creating a legal equitable mortgage of an immovable property by deposit of title deeds to avail the mortgage loan for purchase of the same immovable property, such title deed of the said immovable property can only be deposited later to its execution and not before. A2 had availed mortgage loan for purchase of Industrial Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon and A2 had to deposit the title deed of the said property after getting it executed in her favour. As RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 60/89 CBI vs Vipul Sharma etc. per PW12 Sh Sahab Khan, Manager Accounts of Haryana State Industrial & Infrastructure Development Corporation (HSIIDC), A2 never applied before HSIIDC at any point of time for any permission for pledging Industrial Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon with Vijaya Bank Delhi Cantt. branch as security to avail any loan. A2 had not taken any steps at any point of time for deposit of title deed of Industrial Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon after execution of its sale deed in her favour with Vijaya Bank, Delhi Cantt. branch. Per contra, sale deed of Industrial Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon was deposited by A2 in Syndicate Bank Connaught Place Branch as security to avail the credit facility as aforesaid there from, concealing the fact of having tendered Industrial Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon as security to Vijaya Bank Delhi Cantt. branch to avail mortgage loan and credit facility herein before said there from.
78. As has been detailed above, it is impossible to adduce direct evidence of offence of conspiracy. The offence of conspiracy can only be proved largely from the inferences drawn from acts or illegal ommissions committed by the conspirators in pursuance of a common design. Agreement amongst conspirators can be inferred by necessary implication. A1, A2 and A3 had gone together to Vijaya Bank Delhi Cantt. Branch as well as to Syndicate Bank Connaught Place Branch at different points of time on different dates in different years detailed RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 61/89 CBI vs Vipul Sharma etc. herein before and executed the documents detailed herein before to avail CCM Facilities, Credit Facilities, Loans including Mortgage Loans and in both these banks tendered as securities the same property i.e., Industrial Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon while these accused persons concealed at Syndicate Bank, Connaught Place branch that said property Industrial Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon was previously pledged with Vijaya Bank Delhi Cantt. branch and also that property factory shed no. 83D, Sector37, Udyog Vihar, Gurgaon was previously tendered as security by A3 with Vijaya Bank Delhi Cantt. branch to avail credit facilities and loans as herein before said. In Vijaya Bank, Delhi Cantt. branch accused persons A1, A2 and A3 were the principal borrowers for herein before said credit facilities and loans wherein they stood guarantors to each other as well. In Syndicate Bank, Connaught Place branch A2 was principal borrower while A1 as well as A3 stood guarantors for A2 to avail the credit facilities herein before said from there. Circumstances of the case, elicited conduct of accused persons, acts of the accused persons A1, A2 and A3, elicited herein above impel me to draw the inference by necessary implication in respect of their sharing common design to avail the CCM Facilities, Credit Facilities, Loan Facilities including Mortgage Loan from Vijaya Bank Delhi Cantt. Branch with intent to not to deposit the title deeds of the properties (1) Industrial Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon and (2) factory shed no. 83D, Sector37, Udyog Vihar, Gurgaon tendered as securities there by them and instead RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 62/89 CBI vs Vipul Sharma etc. depositing the sale deed of Industrial Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon with Syndicate Bank Connaught Place Branch to avail Credit Facilities, Loan Facilities including Mortgage Loan from there, which all acts were with the apparent intent to not to pay back the availed loan facilities in entirety and to cause wrongful and avoidable loss to Vijaya Bank Delhi Cantt. branch for the wrongful gain of the accused persons. It was fortunate for Vijaya Bank, Delhi Cantt. branch to recover some of the outstanding dues later on by sale of pledged security, factory shed no. 83D of A3. But said fact in itself cannot absolve A3 of his culpability in the criminal conspiracy nor is a pointer to his being not a part of criminal conspiracy, as argued for him.
79. PW14 Sh Dharamvir Khatri Advocate deposed that he was on the panel of Vijaya Bank and had submitted the legal scrutiny report dated 26/11/2005 Ex PW14/A (colly) (D121) in respect of industrial shed/plot bearing no. 83 Type D, Industrial Area Phase VI, Udyog Vihar, Gurgaon, Haryana along with documents to the Vijaya Bank. Ex PW14/A (colly) finds mention that for mortgage of said property with the bank, permission from HSIIDC for mortgage was required because conveyance deed had not been got executed and had to be got registered in the name of party namely A3. Also was mentioned in the report Ex PW14/A (colly) that the equitable mortgage by deposit of original title deed was possible, which was also to be executed and registered in favour of A3, which document should be deposited by the party A3 RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 63/89 CBI vs Vipul Sharma etc. with the bank for the creation of equitable mortgage of the said property in favour of the bank.
80. PW4 Sh R. Raja Ballal Advocate deposed that as per request of Vijaya Bank, Delhi Branch he submitted a legal scrutiny report dated 06/03/2006, Ex. PW4/A (D159) pertaining to property bearing no. D26 Udyog Vihar, Phase-VI, Gurgaon, Haryana measuring 315.86 Sq. mt. which was purported to be purchased by A2 from the then owner PW5 Sh Satyavir Yadav through attorney PW3. As per Ex PW4/A, A2 would get clear and valid title of property bearing no. D26 Udyog Vihar, Phase-VI, Gurgaon, Haryana after execution and registration of conveyance deed in her favour by HSIIDC and the equitable mortgage can be created by A2 by deposit of the said conveyance deed and also that if the documents detailed therein including conveyance deed in favour of A2 by HSIIDC is deposited and equitable mortgage was created in the manner, required by law it will satisfy the requirements of creation of equitable mortgage. In his report Ex PW4/A, PW4 also specified in unequivocal terms that the property bearing no. D26 Udyog Vihar, Phase-VI, Gurgaon, Haryana was subject to the payment to the vendor namely Smt Archana Gaur (PW3) and for creating the equitable mortgage of property bearing no. D26 Udyog Vihar, Phase-VI, Gurgaon, Haryana, the deposit of the said conveyance deed in favour of A2 after its execution, was required. Also was specified in Ex PW4/A that No - Due Certificate, permission to RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 64/89 CBI vs Vipul Sharma etc. mortgage and permission for to Transfer from HSIIDC was to be taken on the record.
81. A4 as AGM allowed (1) Cheque no. 013137 [D149 (6)] Ex PW17/V2 of sum of Rs 13,00,000/ dated 07/03/2006; (2) Cheque no. 013140 [D149 (7)] Ex PW17/V3 of sum of Rs 13,00,000/ dated 10/03/2006 and (3) Cheque no. 021601 [D149 (8)] Ex PW17/V4 of sum of Rs 15,00,000/ dated 12/03/2007; all of CCM Account No. 600606011000011 of M/s Jeevan Fashions, proprietor A1; to be passed beyond the permissible over draft limit and even beyond the stated 20% of the existing permissible over draft limit of the CCM Account. Signatures of A1 for passing of such cheques are on the face of the aforesaid cheques. Ld. Counsel for A4 argued that Circular No. 178/2006 dated 25/09/2006 of Vijaya Bank, part of D162, Ex PW13/C (colly) in para 18 at page 26 inter alia finds mention that in case of the excess drawing/temporary over drawing made beyond delegated powers in any case of exigencies/business compulsions for the genuine trade requirements of a constituent, a Report (TOD/BP Report) as per prescribed format with all columns filled up should be submitted by the branch to the Regional Office on the very same day of transaction for getting approval from the immediate next higher authority and in terms thereof it was the duty of the the Senior Manager of the branch to send the such report to the Regional Office as per the AnnexureI of the Chairman's Special Circular No. 5/93 dated 22/04/93 of Vijaya Bank, RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 65/89 CBI vs Vipul Sharma etc. copy Ex PW13/DA. It was also argued that A4 as an AGM of Vijaya Bank had the powers to sanction the limits till four crores and at no point of time he had exceeded his limits of sanction. As per above referred Circular Ex PW13/DA, the Assistant General Manager rank official i.e., A4 was the senior most official of the Vijaya Bank in the exceptionally large branch of Delhi Cantt. and was senior to the Senior Manager there. Accordingly, in terms of the referred Circular No. 178/2006 dated 25/09/2006 part of Ex PW 13/C(colly) such emergency powers for sanction of adhoc limits and permitting excess drawing/temporary over drawing are to be used very sparingly and only after recording reasons and even are subject to report to the controlling authority immediately on sanction (see also para 14 of the Circular under consideration). Being the head of the branch, A4 was under bounden duty to have seen to it that requisite record as referred above for the excess drawing/temporary over drawing had been sent from the branch to the Regional Office on the very same day of transaction of the cheques Ex PW17/V2, Ex PW17/V3 and Ex PW17/V4 but there is no material on record nor even put on record in defence by A4 and proved that he had performed his such bounden duty aforesaid. Even while allowing cheque Ex PW17/V3 to be passed being beyond 20% of the permissible over draft limit, on 10/03/2006 no act was done by A4 to have taken care to see even the previous requisite record having been sent to the Regional Office in respect of passing of cheque Ex PW17/V2 beyond 20% of the permissible over draft limit despite the fact that cheque Ex RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 66/89 CBI vs Vipul Sharma etc. PW17/V3 was passed only three days later to cheque Ex PW17/V2. A 4 cannot be permitted to shift the burden of his duty upon the Senior Manager nor can take shelter behind the plea that sending of the such requisite record to Regional Office was the job of Senior Manager, since A4 happened to be the head of the exceptionally large Delhi Cantt Branch of Vijaya Bank and had himself allowed these cheques Ex PW17/V2 to Ex PW17/V4 to be passed beyond 20% of the stated permissible over draft limit.
82. In the cross examination by Ld. Counsel for A4, (1) PW13 elicited that as per banking guidelines, Branch Credit Committee (BCC) meeting was mandatory before sanction of CCM Facility by the AGM in the case where the sanctioning authority was Chief Manager or AGM and the BCC is required to scrutinize all documents put before it before opining and all deficiencies need to be pointed out by them in their Minutes and (2) PW20 deposed that AGM was not member of BCC. Process notes (1) D164 dated 06/12/2005, part of Ex PW13/E (colly) for sanction of CCM Limit of Rs 50 lacs to M/s Jeevan Fashions, proprietor A1, as aforesaid; (2) D5 dated 08/02/2007 Ex PW17/D for enhancement of CCM Limit of Rs 50 lacs to Rs 60 lacs to M/s Jeevan Fashions, proprietor A1, as aforesaid and (3) D7 dated 05/05/2007 Ex PW17/F for sanction of adhoc CCM Limit of Rs 25 lacs to M/s Jeevan Fashions, proprietor A1; (4) D43 dated 08/03/2006 Ex PW16/A for Mortgage Loan of Rs 20 lacs to Smt Rajni Sharma, proprietor of M/s RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 67/89 CBI vs Vipul Sharma etc. Elegant Fashions and M/s R.S Enterprises for the purchase of factory shed no. 26D, PhaseVI, Udyog Vihar, Gurgaon and (5) D28 dated 05/05/2007 Ex PW17/O for sanction of CCM Limit of Rs 20 lacs in favour of M/s Elegant Fashion, proprietor A2 do not find mention of any meeting of BCC or Minutes or opinion of BCC or any deficiencies pointed out by BCC in respect of the sanctions so accorded by A4 vide said Process Notes. No fact is borne out of evidence of prosecution nor any evidence has been led in defence by A4 that in his tenure as AGM in Delhi Cantt. branch of Vijaya Bank, before according the sanctions aforesaid vide the Process Notes aforesaid, he had perused the Minutes of BCC, its opinion and/or any deficiencies pointed out by BCC before according these sanctions. Even in D164 dated 06/12/2005, part of Ex PW13/E (colly) for sanction of CCM Limit of Rs 50 lacs to M/s Jeevan Fashions, proprietor A1, as aforesaid, there is clear and specific mention that the CCM Limit of Rs 50 lacs is being sanctioned subject to terms and conditions inter alia of, "Party should deal with us exclusively and account with Syndicate Bank to be closed forthwith and no due certificate to be obtained". Despite afore elicited terms and conditions laid in said sanction D164 dated 06/12/2005, part of Ex PW13/E (colly) yet for enhancing the same CCM Limit from Rs 50 lacs to Rs 60 lacs and according sanction vide D5 dated 08/02/2007 Ex PW17/D to M/s Jeevan Fashions, proprietor A1, no heed was paid by A4 to verify as to whether the afore elicited terms and conditions "Party should deal with us exclusively and account with Syndicate Bank to be closed forthwith RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 68/89 CBI vs Vipul Sharma etc. and no due certificate to be obtained" were fulfilled by the said party and requisite no due certificate was obtained and filed. It is apparent on the face of the record that due diligence, as was required of A4, at the time of according of the sanction vide D5 dated 08/02/2007 Ex PW17/D to M/s Jeevan Fashions, proprietor A1 was not observed by A4.
83. Process notes D164 dated 06/12/2005, part of Ex PW13/E (colly) for sanction of CCM Limit of Rs 50 lacs to M/s Jeevan Fashions, proprietor A1, as aforesaid; D5 dated 08/02/2007 Ex PW17/D for enhancement of CCM Limit of Rs 50 lacs to Rs 60 lacs to M/s Jeevan Fashions, proprietor A1, as aforesaid and D7 dated 05/05/2007 Ex PW17/F for sanction of adhoc CCM Limit of Rs 25 lacs to M/s Jeevan Fashions, proprietor A1, as aforesaid find clear mention of primary security inter alia to be EMDTD of property/factory shed no. 83D, Type D316, Phase VI, Udyog Vihar, Gurgaon in the name of A3 and sanctions to these CCM Limits were accorded by A4 as AGM of Vijaya Bank. On Process Note D43 dated 08/03/2006 Ex PW16/A for Mortgage Loan of Rs 20 lacs to Smt Rajni Sharma, proprietor of M/s Elegant Fashions and M/s R.S Enterprises for the purchase of factory shed no. 26D, PhaseVI, Udyog Vihar, Gurgaon as aforesaid, sanction of said loan was accorded by A4 as AGM. Intimation of sanction of said mortgage loan of Rs 20 lacs, Ex PW16/B (D44) addressed to A2 signed by A4 at portion A finds clear mention of the security as EMDTD of shed no. 26, Type D, Udyog Vihar, PhaseVI, Gurgaon valued Rs RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 69/89 CBI vs Vipul Sharma etc. 48.23 lacs and Ex PW16/B finds signatures of A2 at portion B in token of receipt of the said intimation and acceptance thereof. Process note Ex PW17/O (D28) dated 05/05/2007 for sanction of CCM Limit of Rs 20 lacs in favour of M/s Elegant Fashion, proprietor A2 finds clear mention of security as, "continuing security of factory building at 26 D, Udyog Vihar, Gurgaon standing in the name of A2 as proprietor of the firm, valued at Rs 100 lacs already mortgaged to Mortgage Loan account of the party for Rs 20 lacs". Said process note Ex PW17/O (D28) was sanctioned by A4 on 05/05/2007 for 45 days thereof. Before sanction of said CCM Limit of Rs 20 lacs vide Ex PW17/O, aforesaid, it was the bounden duty of A4 to verify and ascertain about the deposit of the title deeds in the Vijaya Bank which were in the favour of A2 for EMDTD of shed no. 26, Type D, Udyog Vihar, PhaseVI, Gurgaon in the mortgage loan account since there was mention of the said security of shed No. 26D, Udyog Vihar, PhaseVI, Gurgaon to be continuing security for the sought adhoc CCM Limit of Rs 20 lacs. A4 did not observe his bounden duty aforesaid and without confirming the deposit of the title deeds of shed no. 26 D, Udyog Vihar, PhaseVI, Gurgaon with Vijaya Bank, accorded the sanction dated 05/05/2007 for said adhoc limit of Rs 20 lacs vide Ex PW17/O (D28). At no point of time in the course of his duties as AGM of Vijaya Bank, A4 ever ascertained deposits of the title deeds of the properties (1) factory shed no. 83D, Type D, Phase VI, Udyog Vihar, Gurgaon and (2) shed no. 26, Type D, Udyog Vihar, PhaseVI, Gurgaon; with Vijaya Bank despite the fact that RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 70/89 CBI vs Vipul Sharma etc. A4 had accorded the sanctions vide Process Notes (i) D164 dated 06/12/2005, part of Ex PW13/E (colly); (ii) D5 dated 08/02/2007 Ex PW17/D; (iii) D7 dated 05/05/2007 Ex PW17/F; (iv) D43 dated 08/03/2006 Ex PW16/A and (v) D28 dated 05/05/2007 PW17/O and in these granted CCM facilities/loans the securities were specified as properties (1) factory shed no. 83D, Type D, Phase VI, Udyog Vihar, Gurgaon and (2) shed no. 26, Type D, Udyog Vihar, PhaseVI, Gurgaon respectively and conveyed to the borrowers vide the sanction intimation letters herein before said, which were accepted by them. It was in the backdrop of the herein before elicited opinions of Panel Advocates of bank namely PW4 and PW14, as per which for completing the EMDTD of aforesaid two immovable properties, deposits of their title deeds were mandatory. A4 cannot be permitted to take shelter behind the plea that it was the sole duty of Senior Manager concerned of Vijaya Bank to obtain the title deeds of the properties tendered as securities as to create equitable mortgage by deposit of title deeds since it was A4 as AGM at the outset who had initially accorded the sanction of CCM Limit in favour of Jeevan Fashion, proprietor A1 and later on enhanced the limit of CCM in favour of Jeevan Fashion, proprietor A1 without verification of the fact of deposit of the title deeds of the factory shed no. 83D, Type D, Phase VI, Udyog Vihar, Gurgaon and it was A4 as AGM at the outset who had accorded the sanction for mortgage loan of Rs 20 lacs vide Ex PW16/A on 08/03/2006 in favour of A2 as proprietor M/s Elegant Fashion and M/s R.S Enterprises and had conveyed the intimation of RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 71/89 CBI vs Vipul Sharma etc. such sanction of mortgage loan to A2 vide Ex PW16/B and even thereafter later had accorded the sanction dated 05/05/2007 for aforesaid adhoc limit of Rs 20 lacs vide Ex PW17/O (D28) to M/s Elegant Fashion, proprietor A2 without ascertaining the deposit of the title deeds of Shed no. 26, Type D, Udyog Vihar, PhaseVI, Gurgaon in favour of A2 with Vijaya Bank. Even as per Ex PW13/DA, the Circular no. 5/93 dated 22/04/93 since A4 was Assistant General Manager (AGM) and the Head of the exceptionally large branch i.e., Delhi Cantt. Branch of Vijaya Bank, it was the duty of A4 over all to ascertain and verify at all stages and in the course of his duties about the deposits of the title deeds of the properties (1) Industrial Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon and (2) factory shed no. 83D, Sector37, Udyog Vihar, Gurgaon kept as securities by borrowers to create equitable mortgages by deposit of title deeds. For carrying out such duties, it was within powers of A4 to direct or otherwise take assistance of his Senior Manager/Manager. No defence evidence has been led by A4 of having done any act in performance of such duties, to make secure the loans and CCM Limits aforesaid sanctioned by him to the borrowers, for avoidable losses to his employer bank. Also before any further sanction of any credit facility as was accorded vide Ex PW17/O (D28) dated 05/05/2007, A4 was required to confirm the deposit of the title deed of the property i.e., Industrial Shed No. 26D, PhaseVI, Udyog Vihar, Gurgaon in favour of A2. It was A4 who intitially vide D164 dated 06/12/2005, part of Ex PW13/A had sanctioned CCM Limit to M/s RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 72/89 CBI vs Vipul Sharma etc. Jeevan Fashions, proprietor A1. Elicited acts of A4 also clearly lead to the inference by necessary implication in respect of his acting in pursuance to a common design to put A1, A2 and A3 to wrongful gain and his employer bank to corresponding wrongful loss and being part and parcel of the hatched conspiracy by A1, A2 and A3 for their wrongful gain. By entering into the criminal conspiracy and availing of the loan facilities, credit facilities, on being permitted by A4 the then AGM Vijaya Bank Delhi Cantt. branch, the accused persons A1 and A2 withdrew huge sums of money in cash, as elicited previously in this judgment, from their such accounts in Vijaya Bank Delhi Cantt. branch within span of few days of sanction of such loans/facilities/limits per contra to the purposes for which loans/limits were sanctioned and wrongfully gained putting Vijaya Bank to corresponding wrongful loss and such acts of A1, A2 and A4 proved of their complicity in cheating Vijaya Bank. Complicity of A3 with arraigned coaccused in cheating Vijaya Bank has been made vivid herein before in this judgment. A4 and other bank officials (not prosecuted for want of sanction) permitted huge over drawings to the borrowers beyond permissible limits, without any justification; subsequent enhancement/sanction of loans done to cover up the over drawings in the accounts; just before sanctioning/enhancement of adhoc limits, over drawn accounts were brought in order within the sanction limit of existing loan amount by manipulations to justify the enhancement limit, as is apparent on the face of record from the statements of account Ex PW13/L (colly) herein RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 73/89 CBI vs Vipul Sharma etc. before described. Non prosecution of Shri K. Rajeev Shetty, the then Chief Manager; Shri D.R. Kamath, the then Sr. Branch Manager; Shri Raj Kumar Jain, the then Asstt. Manager; Shri A.K. Aggarwal, the then Asstt. Manager of Vijaya Bank due to decline of sanction for their prosecution by competent authority cannot in any way come to the aid of A4 for getting absolved of his culpability in the criminal conspiracy proved by his elicited act and conduct, nor can be made a ground for acquittal of A4 as argued for him, considering his elicited complicity in the offences charged. In this fact of the matter, elicited acts of A4 were without any public interest as well as the consequence of his manifest failure to observe reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his duty to have adopted, as someone acting reasonably, on the basis of material available, would have taken and his elicited decisions of sanctions of the credit facilities resulted in the borrowers A1, A2 and A3 obtaining pecuniary advantage, without depositing requisite title deeds of immovable properties pledged for completing their EMDTD, without public interest, thereby A4 was also responsible for the consequences. Contentions put forth in defence do not hold water for acquittal of any or all accused. It is proved on record that by the elicited criminal acts of arraigned accused and acts of other bank officials aforesaid not summoned/prosecuted for want of sanction, Vijaya Bank, Delhi Cantt. branch suffered avoidable wrongful losses to the tune of Rs 2.63 crores, as previously detailed in this judgment.
RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 74/89 CBI vs Vipul Sharma etc.
84. In this fact of the matter, in view of the foregoing discussions, I have reached the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt against [1] all the accused persons for offence under Section 120B of IPC read with Section 420 of IPC and under Section 13 (2) read with Section 13 (1)(d) of Prevention of Corruption Act,1988; [2] A1, A2 and A3 for offence under Section 420 of IPC; [3] A4 for offence under Section 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act,1988 (PC Act); for which offences the stated accused are accordingly held guilty and convicted. Let they be heard on sentence.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act) (CBI)6, today i.e., 10/09/2013. Patiala House Court, New Delhi.
Deepika RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 75/89 CBI vs Vipul Sharma etc. IN THE COURT OF SH. GURVINDER PAL SINGH, SPECIAL JUDGE (PC ACT) (CBI)6, PATIALA HOUSE COURT, NEW DELHI CC No. 35 /12 (Old CC No. 06/11) RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI U/S 120B/420 IPC and 13(2) read with Section 13 (1)(d) of PC Act CBI vs. Vipul Sharma etc. Unique ID No.: 02403R0028752011 Central Bureau of Investigation vs. (1) Vipul Sharma S/o Late Sh P.R Sharma, R/o A204/205, Hari Nagar, Clock Tower, New Delhi64 (2) Rajni Sharma W/o ShVipul Sharma, R/o A204/205, Hari Nagar, Clock Tower, New Delhi64 (3) Rajesh Kumar Singh S/o Sh Baidhya Nath Singh, R/o H. No. 113, Sector40, Noida (U.P) Permanent Address: Village Jhikty, P.OKerma, P.S Kudni, District Mujaffarpur, Bihar (4) H.G Pai S/o Late Sh H.V Pai, R/oFlat No. 201, Vishal Apartments, 21 Model House Street, Basvanagudi, Bangalore560004 ORDER ON SENTENCE:
Having convicted [1] all the accused persons for offence RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 76/89 CBI vs Vipul Sharma etc. under Section 120B of IPC read with Section 420 of IPC and under Section 13 (2) read with Section 13 (1)(d) of Prevention of Corruption Act,1988; [2] accused Vipul Sharma (A1), accused Rajni Sharma (A2) and accused Rajesh Kumar Singh (A3) for offence under Section 420 of IPC; [3] accused H.G Pai (A4) for offence under Section 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act,1988; I have heard the Ld. PP for CBI, the Ld. Defence Counsels and the convicts and have perused the record.
2. Sh. Anil Tanwar, Ld. Public Prosecutor for CBI has submitted that repeated instances of A4 of abuse of his position as AGM of Delhi Cantt. branch of Vijaya Bank for putting A1, A2 and A 3 to wrongful gain and his employer bank to corresponding wrongful loss have been proved on record. Ld. PP for CBI has prayed for maximum prison term for the convicts for the offences for which they have been convicted on the premise that corruption has reached phenomenal level and deterrent sentence would meet the ends of justice as is required in the interest of the society.
3. Sh Sanjiv Verma, Ld. Counsel for A1 and A2 in his submissions has prayed for lenient view for the convicts. A1 is submitted to be of age of about 52 years, 12 th class pass, also having done one year course in Cutting and Tailoring; previously done private job as a Cutting Master in different concerns for the period about more than 20 RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 77/89 CBI vs Vipul Sharma etc. years and since around year 2000 started his own business in the name of M/s Jeevan Fashions. A2, the wife of A1, is stated to be of age 45 years, 9th class pass and presently housewife. It is also submitted that A1 and A2 have three children i.e., son of age 23 years who left studies after doing IInd year of BBA and twin daughters of age 19 years having mind of a 12 years old person. A1 also submitted that his father expired four years ago and his mother had expired 12/13 years ago while his elder brother and two sisters are all married and living separately. A1 also submitted that his elder brother permitted him to reside with family at second floor portion of property belonging to him (elder brother of A
1) at Hari Nagar. A1 also submitted that the real culprits of the offences have not been booked by the CBI for prosecution. The convicts A1 and A2 have also prayed for leniency submitting they are not previous convicts. No document has been shown nor filed nor time was sought to file any document concerning the elicited mental capacity of the twin daughters of A1 and A2.
4. Sh Rohit Shanker, Ld. Counsel for A3 in his submissions has prayed for lenient view for the convict submitting that A3 did not avail any loan/facility from Syndicate Bank nor deposited any documents of his property there. Also was argued that A3 stood guarantor for A1 and A2 in good faith and hypothicated his property, of value more than Rs 1 Crores, i.e., factory shed no. 83D, Sector37, Udyog Vihar, Gurgaon with Vijaya Bank which was used by A1 and A RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 78/89 CBI vs Vipul Sharma etc. 2 as collateral security. It was argued that it was infact A3 who lost his said property of value more than Rs 1 Crore and A3 was cheated instead. It was also submitted that A3 is of age 44 years, 10 th class pass, presently doing job as Laundry Incharge in Jagdamba Enterprise on monthly salary of Rs 25,000/. It was also submitted that A3 was sole bread earner in his family consisting of (1) old aged mother of 67 years; (2) wife, who was housewife; (3) two minor children i.e., daughter of age 16 years, student of 12th class and a son of age 13 years, student of 9 th class in a public school in Gurgaon. It has also been submitted that by pledging own property as security, A3 helped A1 and A2 in availing loan facilities. The convict A3 has also prayed for leniency submitting he is not previous convict.
5. Sh K. Madhavan, Ld. Counsel for A4 in his submissions has prayed for lenient view for the convict submitting that since competent authority of Vijaya Bank declined to accord sanction for prosecution of other bank officials, bank officials other than retired A4 were not prosecuted by CBI and had A4 been in service, sanction would have also been refused by competent authority for prosecution of A4. It was also argued that for the act and conduct of the Senior Manager of Vijaya Bank in not procuring original title deeds of the pledged immovable properties for completing EMDTD in the availed loan facilities by the borrowers A1, A2 and A3 landed A4 in trouble though A4 did not violate any rule. It was prayed that A4 be released RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 79/89 CBI vs Vipul Sharma etc. on probation on good conduct since he had the long career of service without blemish. The convict A4 submitted his age to be 65 years; having done B.Sc (Hons) and M.Sc; having in his family wife besides which his two daughters were married and settled in their respective matrimonial homes at Mumbai and Bangalore. A4 also submitted that he retired as Deputy General Manager from Merchant Banking Division of the head office of Vijaya Bank at Bangalore and no administrative action was taken against him, finding no act of his to be contrary to the rules and procedures of his employer bank. The convict A4 has also prayed for leniency submitting he is suffering from age related problems like hypertension, diabetes etc. and that he is not previous convict.
6. In State of U.P. Vs. Shri Kishan, AIR 2005 SC 1250, Apex Court has emphasised that just and proper sentence should be imposed. It was held:
"......Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'."
(Emphasis added) RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 80/89 CBI vs Vipul Sharma etc.
7. In State of Punjab Vs. Bira Singh & Ors., (1995) Supp. 3 SCC 708, Apex Court has held that at the time of awarding the sentence, the court should not be confused with the principle of adopting the most lenient view and an accused may not be awarded lesser punishment so that there would be deterrence for committing the crime again and such a view may adversely affect not only the accused but the society as a whole.
8. In Sadhupati Nageswara Rao Vs. State of Andhra Pradesh, AIR 2012 SC 3242, Apex Court observed that the courts cannot take lenient view in awarding sentence on the ground of sympathy or delay as the same cannot furnish any ground for reduction of sentence.
9. In Alister Anthony Pareira Vs. State of Maharashtra, AIR 2012 SC 3802, Apex Court held as under:
"Sentencing is an important task in the matters of crime. One of the prime objectives of the the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.
RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 81/89 CBI vs Vipul Sharma etc. The principle of proportionality in sentencing a crimedoer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crimedoer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence."
(Emphasis added)
10. In Dhananjoy Chatterjee @ Dhanna Vs. State of West Bengal, (1994) 2 SCC 220, Apex Court observed :
"...The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering the imposition of appropriate punishment."
11. In State of M.P vs Babu Lal and others, 2013 IX AD (SC) 8, it was held on 12/08/2013 by Hon'ble Dr. Justice B.S Chauhan that "One of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. The most relevant determinative factor of sentencing is proportionality between crime and punishment keeping in mind the social interest and consciousness of the society. It is a mockery of the criminal justice system to take a lenient view showing misplaced sympathy to the accused on any consideration whatsoever including the delay in conclusion of criminal proceedings. The Punishment should not be so lenient that it shocks the conscious of the society being abhorrent to the basic principles of sentencing. Thus, it is the solemn duty of the court to strike a proper balance while awarding sentence as awarding a lesser sentence encourages a criminal and as a result of the same society suffers."
12. In the case of "A.Wati A.O. vs. State of Manipur," 1996 RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 82/89 CBI vs Vipul Sharma etc. Cri. L. J. 403 (SC), it was held that "The fact that the appellant is a senior IAS Officer really requires a serious view of the matter to be taken, instead of soft dealing. The fact that he has a number of dependents and is going to lose his job are irrelevant considerations in as much as in almost every case a person found guilty would have dependents and if he be a public servant, he would lose his job. The present being the first offence is also an irrelevant consideration. Though the delay has some relevance, but as in cases of the present nature, investigation itself takes time and then the trial is prolonged, because of the type of evidence to be adduced and number of the witnesses to be examined, we do not think that the fact of delay of about five years could have been a ground to award the sentence of imprisonment till rising of the Court, which really makes a mockery of the whole exercise."
13. In view of the law laid in the case of A. Wati A.O. (Supra), in the cases of corruption the age, family, responsibilities, previous records of convict and the loss of job cannot be considered as mitigating circumstances in sentencing of the convict.
14. Today India is faced with a different kind of challenge. It is not 'petty Bakshish' anymore but scams to the tune of thousands of crores that highlight a political, bureaucratic, industry nexus which if not checked could have a far reaching impact. Corruption is considered to be one of the major roadblocks in India's journey from a developing to a developed economy. There is an urgent need to have a comprehensive framework that would help curtail corruption. Rigid bureaucracy, complex laws and long drawn processes of the legal system deters people from taking legal recourse against corrupt public servants.
RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 83/89 CBI vs Vipul Sharma etc.
15. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. In the fact of the matter the economic offences were committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. Also, disregard for the interests of the Community was manifest in the acts of convicts, who were also unmindful of the damage done to the society and nation.
16. In the fact of the matter, acts of A4, the then AGM of Vijaya Bank, Delhi Cantt. branch, elicited in detail in the judgment, were without any public interest as well as the consequence of his manifest failure to observe reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his duty to have adopted, as someone acting reasonably, on the basis of material available, would have taken. The elicited decisions of A4 regarding sanctions of the credit facilities, in furtherance of criminal conspiracy hatched by arraigned accused, now convicts were such criminal acts done by A4 by abuse of his position as a public servant i.e., AGM of Delhi Cantt. branch of Vijaya Bank and had resulted in the borrowers A1, A2 and A3 obtaining pecuniary advantage, without depositing requisite title deeds of immovable properties pledged for completing their EMDTD, without public interest. By entering into the RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 84/89 CBI vs Vipul Sharma etc. criminal conspiracy and availing of the loan facilities, credit facilities, on being permitted by A4 the then AGM Vijaya Bank Delhi Cantt. branch, the convicts A1 and A2 withdrew huge sums of money in cash, as elicited previously in the judgment, from their such accounts in Vijaya Bank Delhi Cantt. branch within span of few days of sanction of such loans/facilities/limits per contra to the purposes for which loans/limits were sanctioned and wrongfully gained putting Vijaya Bank to corresponding wrongful loss. A4 and other bank officials (not prosecuted for want of sanction) permitted huge over drawings to the borrowers beyond permissible limits, without any justification; subsequent enhancement/sanction of loans were done to cover up the over drawings in the accounts; just before sanctioning/enhancement of adhoc limits, over drawn accounts were brought in order within the sanction limit of existing loan amount by manipulations to justify the enhancement limit, as elicited in the judgment. Due to the criminal acts of arraigned accused/convicts pursuant to their conspiracy and acts of other bank officials, not summoned/prosecuted for want of sanction, Vijaya Bank, Delhi Cantt. branch suffered avoidable wrongful losses to the tune of Rs 2.63 crores, as elicited in the judgment.
17. Keeping in mind the gamut of facts and circumstances, I do not find any reason to grant benefit of probation to any of the convicts. Granting of probation to convicts would be like granting licence to such offenders for according sanction/obtaining loans from the banks with RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 85/89 CBI vs Vipul Sharma etc. intent to put the bank concerned to wrongful losses for their wrongful gains by not remitting back the loans availed, contrary to law and rules and for concerned officials to conveniently ignore them for own personal benefits in detriment to public interest. Cry of society is that such convicts are to be suitably sentenced.
18. Be that as it may, I cannot be oblivious of the fact that the convicts have no bad antecedents and have already undergone agony of trial for about little less than two and half years as well. Keeping in mind overall facts and circumstances of the case, the convicts are sentenced as under:
Vipul Sharma (A1) is sentenced to:
(i) Rigorous Imprisonment for one year for offence under Section 120B IPC read with Section 420 of IPC and under Section 13 (2) read with Section 13 (1)(d) of Prevention of Corruption Act 1988 and fine of Rs. 25,000/ in default thereof he would undergo Simple Imprisonment for a further period of six months;
(ii) Rigorous Imprisonment for four years for offence under Section 420 IPC and fine of Rs.50,000/ in default thereof he would undergo Simple Imprisonment for a further period of one year.
RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 86/89 CBI vs Vipul Sharma etc. Rajni Sharma (A2) is sentenced to:
(i) Rigorous Imprisonment for one year for offence under Section 120B IPC read with Section 420 of IPC and under Section 13 (2) read with Section 13 (1)(d) of Prevention of Corruption Act 1988 and fine of Rs. 25,000/ in default thereof she would undergo Simple Imprisonment for a further period of six months;
(ii) Rigorous Imprisonment for four years for offence under Section 420 IPC and fine of Rs. 50,000/ in default thereof she would undergo Simple Imprisonment for a further period of one year.
Rajesh Kumar Singh (A3) is sentenced to:
(i) Rigorous Imprisonment for one year for offence under Section 120B IPC read with Section 420 of IPC and under Section 13 (2) read with Section 13 (1)(d) of Prevention of Corruption Act 1988 and fine of Rs. 25,000/ in default thereof he would undergo Simple Imprisonment for a further period of six months;
(ii) Rigorous Imprisonment for four years for offence under Section 420 IPC and fine of Rs.50,000/ in default thereof he RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 87/89 CBI vs Vipul Sharma etc. would undergo Simple Imprisonment for a further period of one year.
H.G Pai (A4) is sentenced to:
(i) Rigorous Imprisonment for one year for offence under Section 120B IPC read with Section 420 of IPC and under Section 13 (2) read with Section 13 (1)(d) of Prevention of Corruption Act 1988 and fine of Rs. 25,000/ in default thereof he would undergo Simple Imprisonment for a further period of six months;
(ii) Rigorous Imprisonment for four years for offence under under Section 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act,1988 and fine of Rs. 50,000/ in default thereof he would undergo Simple Imprisonment for a further period of one year.
19. For all convicts, their respective sentences of Rigorous Imprisonment shall run concurrently while their respective sentences of Simple Imprisonment in default of payment of fine shall run consecutively.
20. The convicts were on bail since filing of the case and during RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 88/89 CBI vs Vipul Sharma etc. trial. The convicts have been sent to jail on 10/09/2013 after the judgment of conviction in this case. Needless to say, all the convicts would be entitled to benefit of Section 428 Cr.P.C.
21. A copy of judgment and order on sentence be given to all the convicts free of cost.
22. Let the convicts be sent to jail under appropriate warrants for which the Reader is directed to do needful.
23. All the convicts have also been made aware about the fact that they have right to file appeal.
24. Ahlmad is directed to page and bookmark the file as per the latest circular so as to enable digitization of the entire record.
File be consigned to record Room.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e., 12/09/2013. Patiala House Court, New Delhi. Deepika RC No. 072/2009/E0008/EOUIII/DLI/NEW DELHI CC No. 35/12 89/89