Delhi District Court
Cbi vs (1) Dr. Pankaj Kumar Prasad on 6 October, 2012
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &
ADDL. SESSIONS JUDGE, I/C (EAST) cum SPECIAL JUDGE
(CBI), KARKARDOOMA COURTS, DELHI.
AC No.03/2009
Unique Case ID No.02402R032452009
FIR No.RC DAI 2006 A 0045
U/s 120B read with Section 420/468/471 IPC
and under Section 13(2) r/w Sec. 13(1)(d) of PC Act, 1988.
CBI Versus (1) Dr. Pankaj Kumar Prasad
S/o Sh. Ganga Nand Prasad
Prop. of Chaturbhuj Hospital,
A5, Deepak Vihar Colony, Khora,
Sector62, Noida.
(2) P.S. Kudwa
S/o Late Sh. S.A. Kudwa
R/o A8, Awadh Apartment,
Vipul KhandI, Gomati Nagar,
Lucknow (UP)
Date of Institution : 30.01.2009
Date of judgment reserved : 20.09.2012
Date of judgment : 04.10.2012
AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 1 of 41
JUDGMENT
Two accused persons, namely, Dr.Pankaj Kumar Prasad and P.S.Kudwa have been sent to face trial by the Anti Corruption Branch of the CBI, for the offences punishable under sections 120B read with Section 420/468/471 IPC and under Section 13(2) r/w Sec. 13(1)(d) of PC Act, 1988.
2 At the time of commission of the offence, accused P.S.Kudwa was posted as Sr.Manager of Corporation Bank, Vasundhra Enclave Branch, New Delhi, whereas accused Dr. Pankaj Kumar Prasad was the proprietor of Chaturbhuj Hospital. 3 Briefly stating, the facts of the present case are that a written complaint dated 31.10.2006 Ex.PW1/B was made by Sh. K.V. Raghav Kamath, DGM, Corporation Bank to the CBI to the effect that during the period 2.4.2004 to 29.09.2004, accused P.S.Kudwa was working as Branch Manager, Corporation Bank, Vasundhra Enclave Branch who sanctioned and disbursed 13 Home loans amounting to Rs. 86.58 lacs and one loan under Corp. Meditech Scheme for Rs. 15 lacs for purchasing medical equipments. It was alleged that the said loans were disbursed by accused P.S.Kudwa by violating banking laws without proper verification of properties. Apart from other AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 2 of 41 home loans, it was alleged that Corp. Meditech Loan No.01/2004 was sanctioned to accused Pankaj Kumar Prasad to purchase medical equipments. It was alleged that the loanee submitted quotations purportedly issued by one M/s Pranay Surgicals and also submitted title deed of the properties located at plot No.5, BlockB, Deepak Vihar Colony, Village Khora, Noida to be mortgaged as collateral security to the said loan. It was further alleged that accused P.S. Kudwa sanctioned the loan without verifying the authenticity of documents and disbursed a sum of Rs. 15 lacs without conducting post sanction verification. It was also alleged that no firm in the name of M/s Pranay Surgical existed and the titles held by the bank were forged and fabricated.
4 On the basis of complaint Ex.PW1/B, FIR Ex.PW7/A was registered and its investigation was entrusted to Inspector Sushil Kumar (PW7). During the course of investigation, he seized various documents including loan file Ex.PW1/D of the present case vide seizure memo Ex.PW1/C. A letter dated 20.03.2008 Ex.PW1/E was sent by Corporation Bank to the CBI annexing therewith documents i.e. A/C Opening Form in respect of Current Account No. 708 and other documents Ex.PW1/E1 and its statements of account AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 3 of 41 Ex.PW1/E2. The said account was in the name of Chaturbhuj Hospital and its proprietor was accused Pankaj Kumar Prasad. On 27.07.2007, IO seized the original credit voucher dated 24.06.2004 of Rs.4,50,000/ Ex.PW1/G, debit voucher of Rs.4,50,000/ Ex.PW1/H, Cheque of Rs. 4,50,000/ Ex.PW1/J and debit voucher of Rs. 5 lacs Ex.PW1/K vide seizure memo Ex.PW1/F. On 30.03.2007, IO issued a letter Ex.PW7/B to M/s Pranay Surgicals near Girls School, Bhangel PhaseII, Noida enclosing therewith certain documents Ex.PW7/B1. The said letter was sent vide envelope Ex.PW2/A. Sh. Hari Om Tyagi(PW2), Postman, has stated that he made efforts to deliver said letter at the given address but there was no such addressee and he gave his report at portion X2 on the letter Ex.PW2/A. 5 Sh. Rakesh Kapoor, the then Manager, Punjab National Bank, Sector1, Noida Branch has stated that current account No. 3664 was in the name of Pranay Surgicals which was opened on 22.06.2004. The account holder Kavita Nain and introducer Dr. Pankaj Kumar appeared before him and account was opened vide account opening form Ex.PW3/A. He also proved the documents Ex.PW3/A1 to Ex.PW3/A3 which were submitted along with AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 4 of 41 account opening form. He proved the statement of said account as Ex.PW3/B. The documents Ex.PW3/A, Ex.PW3/A1 to A3 and Ex.PW3/B were sent to CBI vide letter Ex.PW7/C. 6 During investigation,Sh. Rajiv Kumar Sharma(PW8), Director Front Line Electro Medical Ltd. Vide letter dated 2.5.2007 Ex.PW7/D forwarded statement of account Ex.PW7/D1 and Debit Note Ex.PW7/D2 and demand draft Ex.PW1/L. It revealed that documents were with regard to supply of Laproscopy set to accused Pankaj Kumar Prasad for which a debit note of Rs.6.05 lacs was raised against which payments in 3 installments in the sum of Rs. 5 lac, Rs. 1 lac and Rs. 6,000/ were received. During investigation, it also revealed that payment to M/s Pranay Surgicals was made directly by the bank through banker's cheque and credited the loan amount directly in the current account of accused Pankaj Kumar Prasad as per statement of account.
7 During investigation, IO obtained specimen signatures of accused Pankaj Kumar Prasad on specimen sheets Ex.PW7/E1 to E9. Original documents as well as specimen signatures of accused Pankaj Kumar Prasad were sent to GEQD, CFSL, Chandigarh vide letters Ex.PW5/A and Ex.PW5/B. In GEQD, AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 5 of 41 Chandigarh, documents were examined by Sh. Abhimanyu Kumar (PW5), AGEQD who gave his opinion Ex.PW5/C and detailed reasons Ex.PW5/D. After examination, report along with reasons and documents were forwarded to CBI vide letter Ex.PW5/E. During investigation, IO seized guidelines Ex.PW1/A regarding Corp Meditech Scheme for sanctioning of medical loans by bank. No sanction for prosecution of accused P.S.Kudwa was obtained as he was already dismissed from service.
8 After completion of the investigation, the challan was put up in the court where accused persons were supplied with the copies of the chargesheet and the documents of the CBI. 9 The charge under sections 120B r/w 420, 468, 471 IPC and 13(2) read with 13(1)(d) of P.C. Act was framed against both the accused. Separate charges under section 420 IPC and under Section 13(2) read with 13(1)(d) of P.C. Act were framed against accused P.S.Kudwa. Separate charge for offence punishable under Section 420/468/471 IPC was also framed against accused Pankaj Kumar Prasad. Accused persons pleaded not guilty to the charges framed against them and claimed trial.
10 The prosecution has examined 8 witnesses in support AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 6 of 41 of its case. Out of those witnesses, PW1 Sh. Shrinath Kamath was the then Chief Manager of Corporation Bank, whereas PW6 Sh. V.S.V. Nagesh was the then Manager/Sr.Manager,Vigilance cell, Delhi of the Corporation Bank. PW2 Sh. Hari Om Tyagi was the Postman who went to deliver letter in the name of M/s Pranay Surgical. PW3 Sh. Rakesh Kapoor was the then Manager, PNB, Sector 1, Noida Branch in which current account in the name of Pranay Surgical was opened. PW4 Sh. Shyam Lal Gupta, Chartered Accountant, assisted accused Pankaj Kumar Prasad in opening current account with Corporation Bank, Vasundhara Enclave Branch. PW8 Sh. Rajiv Kumar Sharma was the Director of Front Line Electro Medical Ltd. PW5 Sh. Abhimanyu Kumar examined the documents and specimen signatures of accused Pankaj Kumar Prasad in CFSL. PW7 Inspector Sushil Kumar is the IO of the case.
11 Statements of accused persons have been recorded under Section 313 Cr.PC. The accused Pankaj Kumar Prasad has stated that he furnished all documents to the bank to show his repayment capacity as well as he gave title deeds of his properties as a collateral security. He further stated that he availed housing loan on the collateral security after sanctioning of present loan which had AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 7 of 41 already been repaid. The another property was in existence as the hospital was being run on the same. He admitted that he applied for a loan of Rs. 15 lacs which was correctly sanctioned by adopting due procedure and norms by P.S.Kudwa.
12 In his statement under section 313 Cr.P.C., accused P.S. Kudwa has stated that he was Sr. Branch Manager of Vasundhra Enclave Branch. He conducted presanction and postsanction site verification and after satisfaction sanctioned the loan. During post sanction verification, he found that accused Pankaj Kumar Prasad invested loan amount. He further stated that there was a separate officer in the bank to process the loan application and after processing, he had to sanction the loan. He further stated that he followed all the norms and rules of the bank and he had already taken the collateral security by depositing the title deeds by accused Pankaj Kumar and the same was equitable mortgage.
13 Both the accused opted to lead evidence in their defence. Accused Pankaj Kumar Prasad examined DW1 Sh. Sudama Singh. No further evidence in defence was led by both the accused and defence evidence was closed.
14 I have heard Shri S. Krishna Kumar, learned PP for AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 8 of 41 the CBI as well as Ld. Counsels for accused persons. I have also carefully gone through their submissions and the material available on record.
Criminal conspiracy 15 It is a settled law that conspiracies are hatched in the pitch dark secrecy and direct evidence of those are hardly available. In this respect, the Hon'ble Supreme Court has observed in the case titled K.R. Purushothaman vs. State of Kerala, AIR 2006 SC 35 that to constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by an illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every details of the conspiracy. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. The criminal conspiracy is an independent offence in Indian Penal Code. The unlawful agreement is sine qua non for constituting offence under Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 9 of 41 between two of more persons which may be express or implied or partly express and partly implied. The offence of conspiracy shall continue till the termination of the agreement. 16 In another case titled Shivnarayan Laxminarayan Joshi Versus State of Maharashtra (reported in 1980 SCC (Cri.)
493), the Hon'ble Supreme has observed that it is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same.
17 To prove the conspiracy between accused persons, prosecution has examined Sh. Shrinath Kamath (PW1) who deposed that he was Chief Manager, Corporation Bank, Vasundhra Enclave Branch from 20062009, whereas accused P.S.Kudwa was the Chief Manager of said branch during 2002 2004. Corp Meditech Scheme was meant for registered Medical Practioners/Doctors/Surgeons to upgrade their clinic/hospital by purchasing machines. During the tenure of accused P.S.Kudwa, maximum amount which could have been sanctioned by the branch Manager was Rs. 15 lacs. Before grant of loan, Bank had to establish credential of doctors, made inquiries from other doctors in the area, income criteria of the doctor to have repayment capacity and quotations/invoices for purchase of AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 10 of 41 equipments. The Branch Manager would personally interview the application and satisfy himself that by purchasing the equipments, Doctor could improve his business. An officer from the bank would visit the clinic/hospital and ascertained from the supplier about the equipments to be ordered. An application would be required from the Doctor for loan and security was also required. Bank could insist for guarantor or collateral security. He proved Manual on Corp Schemes as Ex.PW1/A. He further deposed that loan of the present case pertains to period prior to his posting. During inspection, several omissions and commissions in the sanction of loan by accused P.S.Kudwa were found and matter was referred to Vigilance Division. Mr. Nagesh from Vigilance Division conducted further investigation who reported that equipments purchased were of substandard quality/second hand and mortgaged property obtained as collateral security could not be identified. Mr. Nagesh submitted report and the case was handed over to CBI. He proved the complaint as Ex.PW1/B. He proved the loan file as Ex.PW1/B. He also proved the account opening form along with its annexures as Ex.PW1/E1 with regard to current account No. 708 in the name of Chaturbhuj Hospital. After going through loan file Ex.PW1/D, witness stated that AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 11 of 41 loan application was processed by accused P.S.Kudwa and a loan amount of Rs. 15 lacs was sanctioned by him on 17.06.2004. There were two properties which were taken as collateral securities; one was a flat and second was sale deed of another plot. Witness stated that as on 17.6.2004, a home loan was outstanding with regard to flat and the plot mortgaged property was not available. He further stated that in support of purchase of medical equipments from M/s Pranay Surgical, borrower filed documents including receipts which were questionable as no tax paid invoice had been submitted. The payment against supply of medical equipments was made by the borrower himself without waiting for disbursement of loan. He stated that loan transactions were mostly routed through current No. 708 and its statement of account was Ex.PW1/E2. He stated that the said loan was classified as Non Performing Asset(NPA) as the party failed to repay the installments regularly.
18 Witness (PW6) Sh. V.S.V. Nagesh has stated that he was posted as Manager/ Sr. Manager in Vigilance Cell and conducted internal investigation. He stated that accused Pankaj Kumar Prasad submitted application for loan of Rs. 6.89 lacs, whereas accused P.S. Kudwa sanctioned Rs.15 lacs. Accused P.S.Kudwa had taken AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 12 of 41 equitable mortgage of Nursing Home Property by obtaining legal opinion from empanelled Advocate. Advocate suggested to obtain originals of documents but the same were not obtained by accused P.S. Kudwa. During investigation, he found that sale deed in favour of accused Pankaj Kumar Prasad was having alterations on the reverse side each stamp paper. He obtained certified copy of sale deed and it was disclosed that the sale deed held with the bank differed from sale deed actually registered before SubRegistrar. He verified the address of M/s Pranay Surgical and visited its site but no such concern was existing. He also visited Chaturbhuj Hospital to verify the purchase of laproscope but the same was not available there. He also found that accused Pankaj Kumar Prasad also availed Housing Loan Facility which became NPA which was later on taken over by transferring the property to Nixon Medhi. He further stated that accused P.S.Kudwa sanctioned Corp Meditech to accused Pankaj Kumar Prasad which was earlier NPA.
19 Perusal of loan file Ex.PW1/D shows that application (page 2) was moved by accused Pankaj Kumar Prasad for taking loan under Corp Meditech Scheme for purchase of Laproscopic set. It is mentioned in the said application that loan was applied for purchase AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 13 of 41 of equipments worth Rs. 6,89,000/. Along with the said application, accused Pankaj Kumar Prasad submitted agreement for term loan and mortgaged the Hospital property and equipments as security. He also annexed the invoice of Rs. 5 lacs issued by Frontline Electromedical Ltd. for laproscopic set as well as invoice of Rs. 1,89,000/ towards other allied equipment/accessories of laproscopic set. He had also annexed the quotations of Rs.5,25,737/ issued by Pranay Surgical towards several equipments.
20 Perusal of loan application at page 2 of Ex.PW1/D clearly shows that Corp Meditech Loan was applied by accused Pankaj Kumar Prasad for a sum of Rs. 6,89,000/ but the disbursement order dated 16.06.2004 shows that accused P.S.Kudwa sanctioned a sum of Rs.15 lacs to his coaccused. The purpose for taking loan was to purchase equipments for the hospital by accused Pankaj Kumar Prasad. But the documents annexed in the loan file Ex.PW1/D shows that some renovation was also done by the accused Pankaj Kumar Prasad out of the loan amount. The loan in the present case was sanctioned only for a specific purpose of purchasing new medical equipments, but the same were used by accused Pankaj Kumar Prasad for other purposes also.
AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 14 of 41 21 It is also matter of record that a plot bearing no.5, BlockB, Deepak Vihar Colony, Village Khora, Ghaziabad was mortgaged by accused Pankaj Kumar Prasad towards security of the loan advanced to him. Page 78 of loan file Ex.PW1/D shows that legal opinion with regard to said plot was obtained from the empanelled Advocate of the bank. In his opinion, Advocate of the bank opined that the original copy of the chain of sale deeds be submitted to the bank. But the perusal of loan file Ex.PW1/D shows that accused P.S. Kudwa obtained only a photocopy of the sale deeds of the said plot (page 99 to 127). Sale deed (page 121 to 127) is in the name of accused Pankaj Kumar Prasad and as per the statement of PW6 Sh. V.S.V. Nagesh when he compared the photocopy of said sale deed with the attested copy obtained from the office of Sub Registrar, he found alterations on each page. Therefore, accused P.S. Kudwa had not obtained the original sale deed from his coaccused Pankaj Kumar Prasad as opined by empanelled Advocate of the bank before sanction and disbursal of loan.
22 It has also come in evidence that accused P.S. Kudwa sanctioned the loan amount of Rs.15 lacs to his coaccused, but as per his loan application, he applied for a loan of Rs.6.89 lacs only. The AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 15 of 41 purpose for applying loan was to purchase equipments for hospital, but the loan was sanctioned by accused P.S. Kudwa for renovation of hospital also. In this manner, accused P.S. Kudwa criminally conspired with his coaccused Pankaj Kumar Prasad to cheat the bank while sanctioning and disbursing loan amount of Rs.15 lacs for the purpose other than applied by accused Pankaj Kumar Prasad. As per statement of PW6 Sh. V.S.V. Nagesh, forgery on the documents was also done by accused Pankaj Kumar Prasad while applying for loan in the sale deed by making alterations in the sale deed. Accused P.S. Kudwa by not obtaining original sale deed of the mortgaged plot, facilitated his coaccused in obtaining loan and thus criminally conspired with him in committing forgery in the documents and using the same as genuine in obtaining loan.
23 It has also come in evidence that M/s Pranay Surgical from whom the equipments were alleged purchased by accused Pankaj Kumar Prasad was not found existing. This fact has also been established from the statement of Postman Sh. Hari Om Tyagi (PW2) who specifically stated that no such addressee was found at the given address and he gave his report on the envelope Ex.PW2/A. It also shows that the invoices raised by the accused Pankaj Kumar Prasad of AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 16 of 41 M/s Pranay Surgical were also forged and fabricated and the same were used as genuine with a view to cheat the bank. No verification had been done by accused P.S. Kudwa to ascertain this fact also, which also shows that both the accused criminally conspired with each other in cheating the bank. It has also come in the evidence of PW6 that the equipments purchased by accused Pankaj Kumar Prasad were found to be second hand and not new equipments. But as per loan application, loan was applied for purchasing new equipments. 24 The report Ex.PW5/C and Ex.PW5/D of Sh.
Abhimanyu Kumar (PW5), handwriting expert also establishes that forgery in the documents was committed by accused Pankaj Kumar Prasad. Testimony of PW5 corroborates the testimony of other witnesses that forgery in the photocopies of sale deeds were committed by accused Pankaj Kumar Prasad which were submitted at the time of availing loan facility.
25 It has been argued by Ld. Counsel for accused that prosecution has miserably failed to establish the conspiracy between accused persons. In support of his arguments, he has relied upon judgment in case of Y.K. Gupta Vs. State of U.P. 2001 Cri.L.J. 339 in which accused was Asstt. Manager in Financial Corporation who AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 17 of 41 allegedly provided loan to an entrepreneur for purchase of new machinery. The machinery purchased was found to be old one and it was observed that no part of mortgage deed suggested that loanee was required to purchase new machinery.
26 Ld. Defence counsel has also relied upon authority in case of State of Rajasthan Vs. Govind Ram Bagdiya and others 2003 Cri.L.J. 1169 in which accused allegedly entered into conspiracy with some private persons for getting land alloted to them. The Hon'ble High Court observed that the evidence showed that allotment was as per law and there was nothing that any personal gain was obtained by accused or there was any wrongful loss to Municipal Board. 27 He has further relied upon authority in case of M. Gopala Krishnaiah and etc. Vs. The State 1988 Cri.L.J. 651 in which it was alleged against the accused that he decreased rate of interest and increased number of installments for repayment of loan. It was observed that exercising discretion within limits in the case of old customer, per se does not amount to cheating or causing loss to the bank.
28 There is no dispute so far as legal proposition propounded in this authority is concerned. However, the fact remains AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 18 of 41 that there is cogent and convincing evidence of conspiracy among the accused persons and acts done by them in pursuance thereto. In the present case, there is sufficient evidence on record that the loan applied by accused Pankaj Kumar Prasad was for a sum of Rs.6.89 lacs, whereas accused P.S. Kudwa sanctioned a sum of Rs.15 lacs, much more than the loan amount applied. It has also come in evidence that loan was applied for purchasing of new equipments but the loan was sanctioned not only for purchasing equipments but also for renovation of hospital. It has also come in evidence that the equipments purchased by accused Pankaj Kumar Prasad from the advanced loan, were second hand and not the new, as applied for by him. Therefore, authorities relied upon by Ld. Counsel for the accused persons are not attracted to the facts of the present case as the same are distinguishable from the facts of the present case. 29 Keeping in view the above evidence, prosecution has successfully established that there was criminal conspiracy between both the accused persons and common object of which was to cheat the bank. It has been established that accused P.S. Kudwa sanctioned the loan amount of Rs.15 lacs, whereas the loan was applied only for a sum of Rs.6.89 lacs by accused Pankaj Kumar Prasad. It has also AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 19 of 41 been established that accused Pankaj Kumar Prasad in pursuance to criminal conspiracy submitted photocopies of sale deeds with the banks which were found to be forge It has also been established that and used the same as genuine for obtaining loan. It has also been proved that accused P.S. Kudwa being Sr. Manager of the bank was duty bound to verify the genuineness of collateral security but instead of doing so, he in conspiracy with his coaccused did not obtain the original documents and sanctioned/disbursed loan/credit facility to the his coaccused. Therefore, I am of the considered opinion that both the accused persons criminally conspired with each other to avail credit facility by submitting forged and fabricated documents and using them as genuine and thus cheated the bank by causing pecuniary loss to the bank to the tune of Rs.15 lacs. It has already come in evidence that the loan advanced was treated as Non Performing Asset (NPA).
30 Consequently, both the accused Pankaj Kumar Prasad and P.S. Kudwa are hereby held guilty for commission of offences punishable under Section 120B IPC read with Sections 420/468/471 IPC and under Section 13(2) read with 13(1)(d) of P.C. Act, 1988. AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 20 of 41 Forgery & Cheating 31 Accused Pankaj Kumar Prasad, proprietor of Chaturbhuj Hospital has been charged for committing forgery on the documents for obtaining loan from the bank and using the same as genuine with a view to cheat the bank. Case of the prosecution is that accused Pankaj Kumar Prasad committed forgery in the copies of sale deeds furnished by him towards securing loan. It is also case of the CBI that he submitted invoices of the firm namely M/s Pranay Surgical which was never in existence. It is alleged that these forged documents were used as genuine by accused Pankaj Kumar Prasad with a view to cheat the bank. It is also case of the prosecution that accused P.S. Kudwa cheated the bank by sanctioning a sum of Rs.15 lacs as loan to his coaccused with fraudulent and dishonest intention and without verifying the documents submitted by his coaccused Pankaj Kumar Prasad. It is also alleged that accused P.S. Kudwa sanctioned the loan amount to his coaccused for the purpose other than applied by his coaccused.
32 To prove its case, prosecution has examined PW6 Sh. V.S.V.Nagesh who conducted internal investigation in the present case on the directions of Chief Vigilance Officer of Corporation AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 21 of 41 Bank. He deposed that loan was applied by accused Pankaj Kumar Prasad for a sum of Rs. 6.89 lacs towards purchase of medical equipments. He further deposed that though loan was applied for Rs. 6.89 lacs, accused P.S.Kudwa sanctioned Rs. 15 lacs on 16.6.2004 mentioning the purpose as cost of medical equipments and improvement of Nursing Home. He had also taken equitable mortgage of plot No.5, Block B Deepak Vihar Colony, Khoda,Ghaziabad. He further deposed that the prescribed guidelines did not envisage sanction of Corp Meditech loan for improvement of Nursing Home. He further deposed that suggestion of empanelled Advocate to obtain original documents of the property was not adhered to by accused P.S.Kudwa. During investigation, he found alterations on reverse side of each page of sale deed and date of obtaining stamp papers was also altered. The amount of Rs. 5.5 lacs was allowed to be withdrawn by accused P.S.Kudwa towards construction work of the hospital which was contradictory to the purpose of loan. A sum of Rs.4.5 lacs was disbursed for purchasing equipments from M/s Pranay Surgical but during verification, it was found that no such concern was existing. He visited Chaturbhuj hospital but did not find available laproscope which was allegedly AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 22 of 41 purchased by accused Pankaj Kumar Prasad out of loan amount. He further deposed that earlier home loan facility was availed by Dr. Pankaj Kumar Prasad which became NPA but despite this accused P.S.Kudwa sanctioned Corp Meditech Loan to his coaccused Pankaj Kumar Prasad. He further deposed that accused P.S.Kudwa had not shown due diligence and also did not conduct postsanction visit and verification of title deeds.
33 PW1 Sh. Shrinath Kamath, Chief Manager, Corporation Bank, Vasundhara Enclave Branch, deposed that Mr. Nagesh conducted investigation into the matter who reported that equipments purchased were of substandard quality/second hand and mortgaged property obtained as collateral security could not be identified.
34 Perusal of loan file Ex.PW1/D shows that application at page 2 & 3 was submitted by accused Pankaj Kumar Prasad for availing loan under Corp Meditech Scheme. Perusal of application shows that loan for a sum of Rs. 6.89 lacs was applied by him for purchase of medical equipments i.e. Laproscopic set. Accused P.S.Kudwa on the back side of page 3 of loan application made his appraisal report on 16.6.2004 to the effect that loan of Rs. 15 lacs was AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 23 of 41 sanctioned towards purchase of medical equipments and towards cost of improvement of Nursing Home.
35 The manual for grant of loan under Corp Meditech Scheme is Ex.PW1/A. The purpose for grant of loan under the said scheme was under :
(i) To finance brand new electro medical and other sophisticated equipments including OT equipments, Air Conditioner, Generators, refrigerator, personal computer and accessories with related software and UPS.
(ii)In the case of setting up of clinics, purchase of furnitures and fixtures, furnishing airconditioning, electrification may also be financed.
(iii)However, financing towards payment of advance rent and good will is not permitted under the scheme.
36 As per Manual Ex.PW1/A, loan under Corp Meditech Scheme could be availed by any medical practitioner for purchase of medical equipments, airconditioner, generators, refrigerator, personal computer, accessories, softwares, UPS, furnitures, fixtures, furnishing, airconditioning and electrification only. As per Manual, loan could not have been granted for AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 24 of 41 improvement of Nursing Home as same is not stipulated in the Manual. But as per appraisal report (on the back side of page 3 of the loan application in loan file Ex.PW1/D) made by accused P.S.Kudwa, he sanctioned a sum of Rs.15 lacs towards purchase of medical equipments and improvement of Nursing Home. It is apparent from the loan application also that loan for a sum of Rs. 6.89 lacs only was applied by accused Pankaj Kumar Prasad but accused P.S.Kudwa not only sanctioned the amount of loan much more than the loan applied but also granted loan for the purpose not envisaged in the Manual Ex.PW1/A. In this way, accused P.S.Kudwa with fraudulent and dishonest intention deceived the bank by sanctioning the loan of Rs. 15 lacs against loan of Rs. 6.89 applied for by his coaccused Pankaj Kumar Prasad and that is too by changing the very purpose of the loan.
37 In the present case, legal opinion with regard to mortgaged property i.e. Plot No.5, Block B, Deepak Vihar Colony, Khoda, Ghaziabad was obtained from the empanelled Advocate of the Bank, namely, Sh.Narendra Kamboj. Legal opinion of Sh. Narendra Kamboj is at page 78 to 81 of the loan file Ex.PW1/D. He opined that original of the documents i.e. sale deeds, GPAs etc. of the mortgaged AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 25 of 41 property be submitted to the bank. But in the present case, accused P.S.Kudwa had not obtained the original documents, rather taken only photocopies. As per testimony of PW6 Sh. V.S.V.Nagesh, when he compared the photocopies of documents with its attested photocopies obtained from the Office of SubRegistrar, he found several alterations on each page of sale deed also alterations in the date of obtaining stamp papers. Nonobtaining of original documents of the mortgaged property by accused P.S.Kudwa also establishes that he sanctioned the loan amount without due diligence and without verifying the title deeds. It has come in evidence that payment of loan amount was directly made to accused Pankaj Kumar Prasad instead of making payment to suppliers of medical equipments. It also proves the case of prosecution that accused P.S.Kudwa with fraudulent and dishonest intention had not obtained the original documents of the property which was mortgaged as equitable mortgage towards securing the loan amount in favour of his co accused and thus caused financial loss to the bank inasmuch as the loan granted was treated as Non Performing Asset(NPA). 38 As per loan file Ex.PW1/D, accused Pankaj Kumar Prasad submitted copies of sale deeds, GPAs etc. of the property AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 26 of 41 which was held as equitable mortgage. As per testimony of PW6 Sh. V.S.V. Nagesh, there were alterations on each page of stamp paper and also alterations in the date of obtaining stamp papers. The specimen signatures of accused Pankaj Kumar Prasad were obtained vide specimen sheets Ex.PW7/E9. The signatures of accused Pankaj Kumar Prasad on the questioned documents with his specimen signatures were compared in laboratory by PW5 Sh. Abhimanyu Kumar, AGEQD. As per his opinion Ex.PW5/C and Ex.PW5/D, signatures of accused Pankaj Kumar Prasad matched with his specimen signatures and he specifically mentioned that signatures on questioned documents and on specimen sheets were of same person. It is not in dispute that copies of sale deeds were filed by accused Pankaj Kumar Prasad along with his loan application. A combined reading of testimony of PW6 and opinion of handwriting expert Ex.PW5/C and Ex.PW5/D proves the case of the prosecution that accused Pankaj Kumar Prasad committed forgery in the copies of sale deeds submitted with the bank with the purpose of cheating and used the same as genuine for obtaining loan facility and thus cheated the bank.
39 It has also come in evidence that accused Pankaj AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 27 of 41 Kumar Prasad submitted receipts and quotations(page 58 to 61 of loan file Ex.PW1/D) for supply of medical equipments from M/s Pranay Surgical. As per testimony of PW6 Sh.V.S.V.Nagesh, he personally verified the address of said concern and visited Bhangel, Phase II, Noida and found that no such concern was existing on the said address. IO PW7 also sent a letter Ex.PW7/B to M/s Pranay Surgical seeking information of equipments supplied to Chaturbhuj Hospital. Said letter was sent to M/s Pranay Surgical vide envelope Ex.PW2/A. PW2 Sh. Hari Om Tyagi, postman, went to deliver the said letter to M/s Pranay Surgical and reported that no such concern was found available at the given address. In his testimony, PW2 deposed that at the relevant time, he used to distribute dak in the areas of Bhangel and sector 82 Noida. He further deposed that he made full efforts to deliver letter Ex.PW2/A at the given address, but there was no such addressee. He proved his report at point X2 on envelope Ex.PW2/A. 40 A combined reading of testimony of PW6 Sh. V.S.V. Nagesh, PW2 Hari Om Tyagi and report at point X2 on envelope Ex.PW2/A establishes that no such firm in the name of M/s Pranay Surgical was existing under whose name receipts and quotations were AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 28 of 41 filed by accused Pankaj Kumar Prasad showing supply of medical equipments to Chaturbhuj Hospital.
41 PW3 Sh. Rakesh Kapoor, the then Manager, Punjab National Bank, has deposed that current account No. 3664 in the name of Pranay Surgical was opened by account holder Kavita Nain being its proprietor and her introducer was accused Pankaj Kumar. He proved the account opening form as Ex.PW3/A, accompanying documents as Ex.PW3/A1 to A3 and statement of account as Ex.PW3/B. It is matter of record that out of the disbursed loan amount, a sum of Rs.4.5 lacs was deposited in the above account of Pranay Surgical. When it has come in evidence that no such concern in the name and style of Pranay Surgical was existing, a reasonable presumption is raised against accused Pankaj Kumar Prasad to the effect that he submitted forged bills of M/s Pranay Surgical. 42 Accused Pankaj Kumar Prasad has examined one witness Sh. Sudama Singh(DW1) in his defence to show that Smt. Kavita Nain was the proprietor of M/s Pranay Surgical who was running his shop from Bhangel, Noida Phase II, UP. DW1 deposed that Smt. Kavita Nain was her tenant in a shop from 2004 to 2006 and she used to sell surgical equipments from the tenanted shop. During AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 29 of 41 cross examination, he admitted that he had no documentary evidence to show said tenancy.
43 Accused Pankaj Kumar Prasad has not produced any convincing evidence to show that any firm in the name and style of Pranay Surgical was ever existing. It has come in evidence that he became introducer of Smt. Kavita Nain in opening account in PNB. If for the sake of argument, it is presumed that Pranay Surgical was existing, it was for accused Pankaj Kumar Prasad to establish its existence. He has not produced or examined Smt. Kavita Nain to show that she was the proprietor of M/s Pranay Surgical and that medical equipments were supplied by the said firm. He has even not produced any certificate of registration of M/s Pranay Surgical to show its existence. In the absence of same, I am of the considered opinion that prosecution has successfully established that no such firm was existing and the invoices/ quotations submitted by accused Pankaj Kumar Prasad in the name of Pranay Surgical were forged and fabricated and same were used by him as genuine and by obtaining loan, he has cheated the bank. So, the testimony of DW1 is of no help to accused.
AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 30 of 41 44 From aforesaid discussion, it has been duly established that accused P.S.Kudwa with fraudulent and dishonest intention, sanctioned a sum of Rs. 15 lacs to his coaccused Pankaj Kumar Prasad while he applied loan of Rs. 6.89 lacs only and also for the purposes other than under the Corp Meditech Scheme and thus committed cheating with the bank and he had also not verified title deeds and obtained only photocopies of sale deeds of the property which stood as collateral security. Accused Pankaj Kumar Prasad committed forgery in the copies of sale deeds submitted by him with the bank as collateral security and used the same as genuine in obtaining loan. He had also committed forgery in the invoices of M/s Pranay Surgical submitted for obtaining loan.
45 Therefore, prosecution has been able to prove its case against accused Pankaj Kumar Prasad under Sections 420/468/471 IPC and also against accused P.S.Kudwa under section 420 IPC. Criminal misconduct 46 Accused P.S.Kudwa has also been charged under Section 13(2) read with section 13(1)(d) of P.C. Act. It is alleged against him that while working as Sr. Manager of Corporation Bank, Vasundhra Enclave Branch he sanctioned loan under Corp Meditech AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 31 of 41 Scheme to his coaccused Pankaj Kumar Prasad without verification of the documents and for the purpose other than the said scheme. 47 It has come in evidence that accused Pankaj Kumar Prasad applied for a loan under Corp Meditech Scheme for a sum of Rs. 6.89 lacs for purchasing medical equipments. Appraisal report dated 16.6.2004 appearing on the back side of page 3 of loan file Ex.PW1/D made by accused P.S.Kudwa shows that he misused his official position and facilitated his coaccused Pankaj Kumar Prasad inasmuch as accused P.S.Kudwa sanctioned a sum of Rs. 15 lacs which was over and above the loan amount applied for. As per Manual Ex.PW1/A, loan under Corp Meditech Scheme could be availed only for purchasing medical equipments etc. but accused P.S.Kudwa by abusing his official position granted loan also for improvement of Nursing Home which was clearly in violation of the purposes mentioned in Manual Ex.PW1/A. 48 It has come in evidence that accused P.S.Kudwa was required to obtain original documents of mortgaged property and to verify their genuineness. As per legal opinion of empanelled Advocate appearing at page 78 to 81 of loan file Ex.PW1/D, original documents of sale deed etc. of the mortgaged property was required AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 32 of 41 to be submitted with the bank. But in the present case, accused P.S.Kudwa did not obtain original documents, rather took photocopies of the sale deeds etc. and even did not verify their genuineness and thus caused financial gain to his coaccused Pankaj Kumar Prasad and corresponding financial loss to the bank by sanctioning loan to his coaccused which was declared as Non Performing Asset.
49 Consequently, it has been duly established by the prosecution that accused P.S.Kudwa being public servant and while posted as Sr. Manager of Corporation Bank sanctioned a loan to the tune of Rs.15 lacs under Corp Meditech Scheme in favour of his co accused Pankaj Kumar Prasad over and above the amount of loan so applied and also for the purpose other than scheme and also without verifying the documents of the properties mortgaged and thus he abused his official position by causing wrongful loss to the bank and corresponding wrongful gain to his coaccused Pankaj Kumar Prasad. 50 Therefore, accused P.S.Kudwa is held guilty under Section 13(2) read with Section 13(1)(d) of the P.C.Act. Conclusion 51 It has duly been established by the prosecution that AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 33 of 41 both the accused persons entered into a criminal conspiracy and common object of which was to cheat the bank by committing forgery and fabrication in the documents and using the same as genuine. 52 It has also been proved that accused Pankaj Kumar Prasad committed forgery in the GPAs/Sale Deeds submitted by him towards collateral security in securing the loan amount. It has further been proved that accused Pankaj Kumar Prasad committed forgery in the invoices/quotations filed in the name of M/s Pranay Surgical which were submitted by him showing the supply of medical equipments from the said firm. The said forged documents were used as genuine by accused Pankaj Kumar Prasad with the purpose to cheat the bank for obtaining loan amount.
53 It has further been established that accused P.S. Kudwa sanctioned the loan of Rs.15 lacs to his coaccused while the loan applied by his coaccused was only for a sum of Rs.6.89 lacs. Accused P.S. Kudwa sanctioned the amount of loan over and above the amount of loan actually applied for by his coaccused. Accused P.S. Kudwa also sanctioned the loan for improvement of nursing home, whereas as per manual Ex.PW1/A for Corp Meditech Scheme, no loan for improvement or construction of nursing home could be AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 34 of 41 provided. The only purpose for availing loan under Corp Meditech Scheme was for purchase of medical equipments. Accused P.S. Kudwa has also not obtained the original documents of property which stood as collateral security. Thus, it has been established that accused P.S. Kudwa with dishonest and fraudulent intention sanctioned and disbursed loan amount of Rs.15 lacs over and above the loan applied for, for the purposes other than envisgaged in manual Ex.PW1/A and also without obtaining the original documents and also without verifying the same and committed cheating. It has also been established that accused P.S. Kudwa being public servant while posted as Senior Manager of Corporation Bank, Vasundhara Enclave Branch was duty bound to verify the mortgaged properties and the claim of his coaccused but he had not done so. He even went to the extent of bypassing the guidelines of bank by sanctioning the loan amount over and above the loan applied for and also for the purpose which was not meant for the same. Thus, by abusing his official position as public servant, accused P.S. Kudwa facilitated his co accused Pankaj Kumar Prasad in obtaining loan under Corp Meditech Scheme to the tune of Rs.15 lacs and causing wrongful loss to the bank.
AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 35 of 41 54 Consequently, both the accused persons, namely, Pankaj Kumar Prasad and P.S. Kudwa are hereby held guilty under Section 120B IPC read with Sections 420/468/471 IPC and 13(2) read with Section 13(1)(d) of P.C. Act. Accused Pankaj Kumar Prasad is also held guilty under Sections 420/468/471 IPC. Accused P.S. Kudwa is also held guilty under Section 420 IPC and under Section 13(2) read with Section 13(1)(d) of the P.C. Act. Both the accused persons are convicted accordingly.
Announced in the open Court ( P.S. TEJI )
Dated: 04.10.2012 District Judge & ASJ, I/C (East)
Special Judge (CBI)
Karkardooma Courts : Delhi
AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 36 of 41
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &
ADDL. SESSIONS JUDGE, I/C (EAST) cum SPECIAL JUDGE (CBI), KARKARDOOMA COURTS, DELHI.
AC No.03/2009 Unique Case ID No.02402R032452009 FIR No.RC DAI 2006 A 0045 U/s 120B read with Section 420/468/471 IPC and under Section 13(2) r/w Sec. 13(1)(d) of PC Act, 1988.
CBI Versus (1) Dr. Pankaj Kumar Prasad
S/o Sh. Ganga Nand Prasad
Prop. of Chaturbhuj Hospital,
A5, Deepak Vihar Colony, Khora,
Sector62, Noida.
(2) P.S. Kudwa
S/o Late Sh. S.A. Kudwa
R/o A8, Awadh Apartment,
Vipul KhandI, Gomati Nagar,
Lucknow (UP)
ORDER ON SENTENCE
I have heard Sh. S.A.Khan, Ld. Counsel for both the AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 37 of 41 convicts as well as learned PP for the CBI on the quantum of sentence.
2 The learned PP for the CBI has submitted that the convicts have been held guilty for commission of criminal conspiracy. Convict P.S.Kudwa being public servant, by misusing his official position and caused pecuniary loss to the bank. It is further argued that convict Pankaj Kumar Prasad committed forgery in the documents and used the same as genuine with a view to cheat the bank. He has further submitted that the convicts may be awarded maximum punishment prescribed under the law.
3 The learned counsel for convict P.S.Kudwa has submitted that he is the only earning member of the family and that entire family is dependent upon him. It is further submitted that there is no other member in his family to look after his wife and children. It is also submitted that he has a daughter of marriageable age. It is further submitted that he is not a previous convict. It is further submitted that convict has attended the court regularly and faced a protracted trial, therefore, a lenient view may be taken while awarding sentence to him.
4 On behalf of convict Pankaj Kumar Prasad, it is AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 38 of 41 submitted that he is having three children and all of them are studying. He is also submitted that he is the only bread earner of his family, therefore, keeping in view his familial conditions, a lenient view may be taken while awarding sentence to him. 5 Vide judgment dated 4.10.2012, convicts Dr. Pankaj Kumar Prasad and P.S.Kudwa have been convicted for commission of offences punishable under Section 120B IPC read with Sections 420/468/471 IPC and 13(2) read with section 13(1)(d) of P.C. Act. Convict Pankaj Kumar Prasad has also been convicted for commission of offences punishable under Sections 420/468/471 IPC. Convict P.S.Kudwa has also been convicted under Section 420 IPC and under section 13(2) read with Section 13(1)(d) of P.C. Act. 6 Considering the circumstances under which the offences were committed, convicts are sentenced as under :
(i)Convicts Pankaj Kumar Prasad and P.S.Kudwa are awarded sentence of three years rigorous imprisonment with fine of Rs.15,000/ each for the offence punishable under Section 120B IPC read with Sections 420/468/471 IPC and 13(1)(d) of P.C. Act. In default of payment of fine, convicts shall further undergo simple imprisonment for six months.
(ii)Convict Pankaj Kumar Prasad is awarded sentence of AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 39 of 41 three years rigorous imprisonment with fine of Rs. 15,000/ for the offence punishable under Section 420 IPC. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
(iii)Convict Pankaj Kumar Prasad is awarded sentence of three years rigorous imprisonment with fine of Rs. 15,000/ for the offence punishable under Section 468 IPC. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
(iv)Convict Pankaj Kumar Prasad is awarded sentence of three years rigorous imprisonment with fine of Rs. 15,000/ for the offence punishable under Section 471 IPC. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
(v) Convict P.S.Kudwa is awarded sentence of three years rigorous imprisonment with fine of Rs.15,000/ for the offence punishable under Section 420 IPC. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
(vi)Convict P.S.Kudwa is awarded sentence of three years rigorous imprisonment with fine of Rs.15,000/ for the offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. Act. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
8 Sentences of the convicts shall run concurrently. The AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 40 of 41 convicts shall be entitled for the benefit of the provisions of Section 428 Cr.PC. Copies of the judgment and order on sentence be given free of cost to the convicts.
File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 06.10.2012 District Judge & ASJ, I/C (East)
Special Judge (CBI)
Karkardooma Courts : Delhi
AC No.03/2009 CBI Vs. Dr. Pankaj Kumar Prasad etc. Page 41 of 41