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Delhi District Court

State vs . Ravi Bansal & 2 Ors. Cnr No. ... on 27 September, 2019

  In the court of Special Judge (PC Act) CBI­17, Room no.402, Forth
           Floor, Rouse Avenue Court Complex, New Delhi

State Vs. Ravi Bansal & 2 Ors.        CNR No. :DLCT11­000367­2019
I.D. No. 86/2019                      C.C. No. : 24/12
FIR No. : RC­8(E)/2003/EOW­I­DLI date of institution      :28.02.2005
Branch : CBI/EOW­I/New Delhi          decision reserved on:20.09.2019
U/ss : Sec,120B r/w sec. 420,467 date of decision         :27.09.2019
       468,471 IPC and sec.13(2) r/w
       sec,13(1)(d) of the Prevention
       of Corruption Act, 1988

In the matter of ­

State                                                        ... State
(through/Investigated by Central Bureau
of Investigation, New Delhi)
                              Versus
A1. Ravi Bansal,
     Prop. M/s Varun Finance Corporation,
     r/o 1449/13, Gali No.8, Durga Puri,
     Shahadara, Delhi.

A2. Kuldeep Kumar Agarwal,
    [Proprietors of ­ M/s H.R. Industries &
    M/s Dwarka Photo Colour Laboratory &
    M/s Dwarka Watch Company,
    F­2 & F­3, Manish Royal Plaza Central Market,
    Sec.10, Dwarka New Delhi­110045],
    r/o 204, Som Apartments, Sector 06,
    Dwarka New Delhi.

A3. Gopal Prasad
    son of Sh. Faguni Prasad,
    [the then Sr. Manager/Branch Manager,
    Canara Bank, Paharganj Branch, New Delhi],
    R/o 2/156, Vishwash Khand Gomti Nagar,
    Lucknow, Uttar Pradesh.                               ...Accused

[C.C. No.24/12           State Vs. Ravi Bansal & 2 Ors.     Page 1 of 129]
                            JUDGMENT

1.1 (Introduction/matrix of the case as set out in the charge­ sheet) - The charge­sheet had been filed against the accused persons­ Ravi Bansal, Kuldeep Kumar Agarwal and Gopal Prasad. The allegations against all the three accused are under section 120­B IPC, 120­B r/w section 420, 467,468,461,471 IPC and section 13(2) r/w section 13(1)(d) of the Prevention of Corruption Act, 1988. In addition, there are allegations of substantive offences u/ss 420,467,468 and 471 IPC against accused Ravi Bansal, of sections 420 and 471 IPC against accused Kuldeep Kumar Agarwal and u/s 13(2) r/w section 13(1)(d) of the Prevention of Corruption Act and u/ss 467,468, 471 IPC against accused Gopal Prasad, a public servant. The charge­sheet narrates briefly certain detail discovered during investigation and accordingly those sections were invoked.

1.2 At the outset accused Gopal Prasad was Branch Manager, Canara Bank, Paharganj Branch, New Delhi during the years 2002­ 2003. Accused Ravi Bansal (Proprietor M/s Varun Finance Corporation Delhi) and accused Kuldeep Kumar Agarwal (Proprietor M/s H.R. Industries Delhi) are account holders in the Canara Bank, Paharganj. Gopal Prasad was a public servant being Branch Manager in the Canara Bank and other two are private persons.

1.3 What happened, on 26.2.2002 a current account no. 7408 in the name of M/s H.R. Industries, Plot no. 13, Pocket­11, Sector ­7, Rohini, Delhi­85 was opened by accused Kuldeep Kumar Agarwal being its [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 2 of 129] proprietor, on the introduction of R.P Singh, for which Kuldeep Kumar Agarwal had furnished application form (now Ex. PW­2/A­1) & his specimens (now Ex. PW­2/A­2), when accused Gopal Prasad was Senior Manager in the Canara Bank, Paharganj Branch, New Delhi.

M/s H.R. Industries had opened the current account no. 7408 on 26.2.2002 and accused Kuldeep Kumar Agarwal (K.K.Agarwal) was shown its Proprietor/authorized signatory. He requested for overdraft facility on 29.8.2002 for expanding his business of shellac (lakhdana) and hardware, which was against stocks, book debts and personal guarantee of Ravi Bansal and collateral security by way of three sale deeds of three properties in Rohini. Accused Kuleep Kumar Agarwal executed loan documents on 13.9.2002 and also by his guarantor on 29.8.2002, the OD account no. 58126 was opened on 13.9.2002 vis a vis overdraft facility of Rs.24 lakhs was sanctioned against request of Rs.30 lakhs. The loan amount was for the expansion of business of shellac and hardware, whereas the amount was withdrawn by issuing cheques in favour of M/s Shree Durga Roadline (a proprietorship of Ravi Bansal, having account in Canara Bank) of Rs.5 lakhs and Rs.2.85 lakhs, another Rs.5 lakh was also siphoned by Devender Kumar (discovered to be an employee of K.K. Agarwal) and similarly six more bearer cheques were issued in the names of different persons and the amount was siphoned off. In this way from 14.9.2002 to 26.9.2002 being period of 12 days, accused K.K. Agarwal had siphoned amount of Rs.22.45 lakhs. The account was within the limits till 31.12.2002 but over­drawings were allowed by Gopal Prasad and it increased to Rs.38.96 lakhs on 15.2.2003, which was beyond the delegated powers [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 3 of 129] for loans and advances (being governed by circular no. 126/2 dated 4.6.2002), particularly the maximum power per party for secured fund base limit was Rs.30 lakhs to Senior Manager in case of extra large branch and the Branch Manager was authorised to allow over­ withdrawing in an account upto 10% of sanctioned limit. Thus, accused Gopal Prasad not only acted beyond delegated power but also he did not ensure proper end use of funds and allowed unauthorised over­ drawings in the account, no genuine trade transactions took place, the said account was declared NPA on 10.6.2003 and total outstanding amount was Rs.41, 54,508.53/­.

1.4 On 26.2.2002 the said Kuldeep Kumar Agarwal had also applied for Canmobile Loan for Rs.5.22 lakhs (vide account no. 1/02 now Ex. PW­2/A­3) for buying a vehicle/Qualis and he furnished the proforma invoice, the loan was sanctioned by accused Gopal Prasad (being Bank Manager); later copy of particulars of vehicle registration no. HR 38 GT 6145 (now Mark­A4) was furnished in the Bank .

It is also discovered that Canmobile Loan of Rs.5.22 lakhs was sanctioned by accused Gopal Prasad on 26.2.2002, for purchase for Toyota Qualis from M/s Capital Vehicles Sales Pvt. Ltd/MGF Toyota Ltd. Gurgaon, the said Gopal Prasad had calculated the loan amount of Rs.5.73 lakhs in his own handwriting on the application of K.K. Agarwal, who had later submitted a forged/fake Registration Certificate (RC now Mark­A4) purported to have been issued by DTO Faridabad in respect of Qualis bearing HR 38 GT 6145, reflecting that Toyota Qualis was in his name and vehicle is under hypothecation of Canara Bank, the [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 4 of 129] photocopy of RC was endorsed "original verified" by Gopal Prasad, Senior Manager of the Bank. Whereas the Qualis HR 38 GT 6145 was found registered in the name of Kuldeep Kumar and hypothecated to M/s Novelty Finance Ltd. Patram, Patiala Punjab and no hypothecation of Canara Bank was ever since was created. Accused K.K. Agarwal had also concealed the fact that he had already taken the delivery of the said vehicle on 19.10.2001 from MGF Toyota Gurgaon, he took further loan of Rs.2.65 lakhs from M/s Novelty Finance Ltd. by concealing this fact and got the vehicle financed from Canara Bank under Canmobile Loan, which was declared NPA on 10.6.2003, when outstanding amount was Rs.4.78 lakhs.

1.5 Accused Kuldeep Kumar Agarwal was also sanctioned another loan of Rs.7.20 lakhs (vide account no. 6/02 on 6.9.2002) under Heavy Vehicle Small Road Transport Operator LHV (SRTO) on his application dated 5.9.02 (now Ex. PW­2/A­36) for buying second hand vehicle/DL 1GB 2423 (Tata Truck) from M/s Jai Ambey Roadline and he had executed relevant documents, accused Ravi Bansal was guarantor/co­ obligant. It was also sanctioned by accused Gopal Prasad.

With regard to this second hand Tata Truck DL 1 GB 2423 from M/s Jai Ambey Roadline, accused K.K. Agarwal's application dated 5.9.02 was endorsed "pre­sanction, vehicle in good condition, Mr. Kuldeep Agarwal is existing customer, C. A/c HR Industries, CM­2/02, repayment @ Rs.10,600/­ P.M. + Rs.20,000/­ = Rs.30,600/­ P.M." besides other remarks and then he wrote "hence sanctioned LHV (SRTO) Rs.7.20 lakh @ Rs.20,000/­ p.m. X 36". A loan of Rs.7.20 lakhs [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 5 of 129] with margin of 25% was sanctioned by accused Gopal Prasad on 6.9.2002. A bogus/fake agreement to sell dated 4.9.2002, purported to be between Satish Kumar Agarwal, Proprietor M/s Jai Ambey Roadline, C­1 New Subzi Mandi, Azadpur, Delhi and K.K. Agarwal, was furnished to the Bank besides copy of RC in the name of M/s Jai Ambey Roadline issued by RTO Rajpura Road, Delhi, showing registration of 26.6.2000 and the photocopy of RC was endorsed "original verified" by Gopal Prasad. Whereas, the truck bearing registration no. DL 1GB 2423 was firstly registered in the name of Risal Singh on 13.11.1996, with MLO Rajpura Road, Delhi, then it was transferred on 19.10.2000 in the name of Ghanshyam Dass Verma and then in the name of Rajinder on 13.11.2003, who is still its owner. The RC submitted by K.K. Agarwal was bogus, the vehicle was not in the name of Jai Ambey Roadline, which never existed but the loan was disbursed through draft no. 941868 dated 6.9.2002 for Rs.8.20 lakhs favouring M/s Jai Ambey Roadline and this draft was credited in account no. 242 (i.e.of M/s Jai Ambey Roadline, of Ravi Bansal) in OBC Ranibagh Branch, Delhi. This account no. 242 was opened on 6.9.2002 by Ravi Bansal on the introduction of K.K. Agarwal, Proprietor M/s Shree Bajrang Stores. An amount of Rs. 1.4 lakh was withdrawn on 7.9.2002, another bearer cheque of Rs.3.20 lakhs was issued on 6.9.2002 in favour of Ramesh but actually it was Kuldeep (KK Agarwal) who encashed the cheque as token was given to him. This account became NPA on 10.6.2003, when an amount of Rs.6,99,101/­ was outstanding.

1.6 Devender Kumar, an employee of Kuldeep Kumar Agarwal, also applied for loan (by loan account no. 7/04 dated 9.9.02) for Rs.4.2 lakhs [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 6 of 129] for vehicle to be bought from M/s Skyline Automobiles. It was also sanctioned by accused Gopal Prasad (being Bank Manager of Canara Bank, Paharganj Branch) and the registration number of the vehicle was DL 1VA 2769.

It is discovered that on 6.9.2002 application for loan for purchase of Mahindra (CNG Mini Bus, RTV, from M/s Skyline Automobiles) was applied by Devender Kumar (employee of K.K. Agarwal) and accused Gopal Prasad processed the application and sanctioned loan of Rs.4.20 lakhs to Devender Kumar, other accused Ravi Bansal stood guarantor, he executed loan documents on 9.9.2009; pay order of Rs.4,95,070/­ (sanctioned amount of Rs.4.2 lakhs + margin money of Rs.75,070/­) was issued by Canara Bank in favour of M/s Skyline Automobiles. The said Devender Kumar obtained the loan but it was actually accused K.K. Agarwal, who had vehicle under his control. The said Devender Kumar had executed loan documents for vehicle at the instance and instructions of K.K. Agarwal and accused Gopal Prasad. In addition, Gopal Prasad's son Vijay Kumar was having a firm under the name and style M/s Dwarka Tour and Travels, Sector­10, Dwarka, it was operating the vehicle. This account became NPA on 17.7.2003 and total outstanding amount was Rs.4,04,861/­.

1.7 Accused Gopal Prasad's sons namely Vijay Kumar and Manoj Kumar were doing business in the name of M/s Dwarka Photo and Colour laboratory and M/s Dwarka Watch Co. in two rented shops of K.K. Agarwal in Central Market, Sector­10, Dwarka, Delhi, certain papers of transactions were discovered in the writing of Gopal Prasad [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 7 of 129] besides unsigned partnership deed between Kuldeep Agarwal and said Manoj Kumar besides photographs of Gopal Prasad. On 7.12.2002 Gopal Prasad alongwith K.K. Agarwal had visited Sh. Gurmeet Singh, proprietor M/s Satguru Enterprise, Karol Bagh, Delhi for buying Titan watches and Gopal Prasad had requested to deliver watches worth of Rs.9 to Rs.10 lakhs at their showroom at Dwarka for which an advance cheque of Rs.5 lakhs was issued by K.K. Agarwal (from his saving bank account no. 21639 with Canara Bank) and in order to ensure its payment, accused Gopal Prasad endorsed in red ink on the cheque "good for payment", accordingly the said Gurmeet Singh supplied watches worth of Rs.8.65 lakhs on 11.12.2002 against two challans, which were signed by Vijay Kumar, whereas on 7.12.2002 the balance amount in the account was just Rs.15/­ only. Similarly, accused Gopal Prasad had visited Andhara Bank in September/October, 2002 accompanying K.K. Agarwal for financial assistance in the business of K.K. Agarwal and Gopal Prasad's son Vijay Kumar had also opened a SB account no. 1281 in Andhra Bank on 5.10.2002, where Vijay had created Kamdhenu deposit receipt and then KTD was also created in the name of his other son Manoj Kumar and he abused his official position to facilitate K.K. Agarwal.

1.8 All these activities had been carried by the accused persons pursuant to their conspiracy, there was fraudulent creation and use of forged/bogus documents as well as abuse of official position by one of the accused persons, since Gopal Prasad was a public servant, that is why sanction was obtained u/s 19(1) of the Prevention of Corruption Act 1988 from the Competent Authority.

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 8 of 129]

2. (Charge) - Both the sides made their submission on the point of charge and by order dated 2.6.2006, the Ld. Predecessor disposed off the contentions and formal charge was framed on 5.7.2006.

3.1 All three accused namely A1 Ravi Bansal, A2 Kuldeep Kumar Agarwal and A3 Gopal Prasad have been charged u/s 120B IPC for allegations that they all during the year 2002­2003 at New Delhi and other places were party to a criminal conspiracy by having agreed to do an illegal act i.e. to cheat the Canara Bank, Paharganj Branch, New Delhi by fraudulently inducing it to disburse/sanction overdraft facility in the name of M/s H.R. Industries, Delhi, Proprietor concern of Kuldeep Kumar Agarwal to the extent of Rs.24 lakhs, further got disbursed/sanctioned loans under Can Mobile Loan Scheme of the Bank vide loan A/c No. 1/02 dt. 26.02.2002 for Rs.5.22 lakhs, under heavy vehicle small road transport operator, LHV(SRTO) loan A/C No. 6/02 dt. 06.09.2002 for Rs.7.20 lakhs to Kuldeep Kumar Agarwal and loan A/c No. 7/02 dt. 09.09.2002 for Rs.4.20 lakhs to Devender Kumar, an employee of Kuldeep Kumar Agarwal, on the basis of fake/fabricated documents and also by facilitating M/s H.R. Industries, Delhi beyond the delegation of powers.

They have been further charged u/s 120B IPC r/w sections 420,467,468, 471 IPC and u/s 13(2) r/w 13(1)(d) of the Prevention of Corruption Act that in furtherance of his criminal conspiracy accused Kuldeep Kumar Agarwal got sanctioned open cash credit (briefly OCC) limit of Rs.24 lakhs from Gopal Prasad, the then Sr. Manager on 29.8.2002 and he overdrew the loan amount upto Rs.38.96 lakhs in [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 9 of 129] connivance with Gopal Prasad the then Sr. Manager, which was beyond his delegation of powers. Accused Kuldeep Kumar Agarwal issued two cheques dated 14.9.2002 and 25.09.2002 for Rs.5 lakhs and Rs.2.85 lakhs in favour of M/s Shri Durga Roadline, a proprietorship concern of Ravi Bansal. The said cheques were purchased by Gopal Prasad dishonestly and over­drawings were beyond the delegated powers. Accused Kuldeep Kumar Agarwal further got sanctioned a vehicle loan under the Canmobile loan scheme for Rs.5.22 lakhs from Gopal Prasad, the then Sr. Manager on 26.02.2002 for purchase of Toyota Qualis against the bogus registration certificate showing hypothecation of vehicle in the name of Canara Bank, whereas said vehicle was not hypothecated to the Bank and accused Gopal Prasad wrote 'original verified'. He further in connivance with Gopal Prasad dishonestly got granted a loan Rs.7.20 lakhs to purchase a second hand truck from M/s Jai Ambey Roadline, whereas the said vehicle was never registered in the name of M/s Jai Ambey Roadline. The loan amount was credited in the account of M/s Jai Ambey Roadline, whose account was being operated by Ravi Bansal. He further got sanctioned a loan of Rs.4.20 lakhs in the name of his employee Davinder Kumar to purchase a Mahindra vehicle. However, he obtained the actual delivery of this vehicle. Further, he alongwith Gopal Prasad visited M/s Satguru Enterprises, Karol Bagh, New Delhi for purchase of Titan watches and Gopal Prasad had made an endorsement in his own handwriting on a cheque for Rs.5 lakhs issued by Kuldeep Kumar Agarwal as 'good for payment'.

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 10 of 129] 3.2 Accused no. A­1 Ravi Bansal was also charged u/s 420 IPC for the allegations that he fraudulently induced, during the above­said period, in furtherance of his criminal conspiracy with Kuldeep Kumar Agarwal, got issued two cheques dt. 14.09.2002 and 25.09.2002 for Rs.5 lakhs and Rs.2.85 lakhs in favour of M/s Shree Durga Roadline, his proprietorship concern. The said cheques were purchased by Gopal Prasad dishonestly and over­drawings were beyond the delegated powers. He further induced the Canara Bank, Paharganj Branch, New Delhi in getting sanctioned a loan of Rs.7.20 lakhs in the name of Kuldeep Kumar Agarwal by selling a second hand truck of his proprietorship concern from M/s Jai Ambey Roadline, whereas the said vehicle was never registered in the name of M/s Jai Ambey Roadline. The loan amount was credited in the account of M/s Jai Ambey Roadline, whose account was being operated by him.

Further, accused Ravi Bansal was charged under section 467 & 468 IPC for the allegations that during the aforesaid period and place used, he prepared or got prepared forged/fake registration certificate purportedly issued by RTO, Rajpura Road, Delhi in respect of vehicle having registration No. DL­1GB­2423, which was never registered in the name of M/s Jai Ambey Roadline, which enabled the Kuldeep Kumar Agarwal to obtain a loan for Rs.7.20 lakhs for purchase of the said vehicle. The loan amount was subsequently credited in his account and he withdrew the same.

Accused Ravi Bansal was also charged u/s 471 IPC for the allegations that during the aforesaid period and place he used the [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 11 of 129] forged/fake registration certificate as genuine knowing fully well that the said documents are forged/false.

3.3 Accused no. A­2 Kuldeep Kumar Agarwal was also charged u/s 420 IPC for the allegations that he fraudulently induced Canara Bank, Paharganj Branch, New Delhi to disburse/sanction overdraft facility in the name of M/s H.R. Industries, Delhi, Proprietor concern of Kuldeep Kumar Agarwal to the extent of Rs.24 lakhs, further got disbursed/sanctioned loans under Can Mobile Loan Scheme of the bank vide loan A/C No. 1/02 dt. 26.02.2202 for Rs.5.22 lakhs, under heavy vehicle small road transport operator, LHV(SRTO) loan A/C No. 6/02 dt. 06.09.2002 for Rs.7.20 lakhs to Kuldeep Kumar Agarwal and Devender Kumar and employee of Kuldeep Kumar Agarwal on the basis of fake/fabricated documents and the loan amount was credited in the loan account of M/s H.R. Industries, Delhi and other accounts which was subsequently withdrawn by him and Ravi Bansal.

Accused no. A­2 Kuldeep Kumar Agarwal was further charged u/s 471 IPC of the allegations that during the aforesaid period and place he used the forged/fake registration certificate as genuine knowing fully well that the said documents are forged/false.

4. Accused no. A­3 Gopal Prasad was further charged under sections 13(2) r/w 13(1) (d) of P.C. Act,1988, 467/468 r/w section 471 IPC for the allegations that he during the period 2002­2003 at New Delhi being a public servant in the capacity of Sr. Manager, Canara Bank, Paharganj Branch, New Delhi by use of illegal means and abusing his official position fraudulently disbursed/sanctioned overdraft [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 12 of 129] facility in the name of M/s H.R. Industries, Delhi, Proprietorship concern of Kuldeep Kumar Agarwal to the extent of Rs.24 lakhs, he further disbursed/sanctioned loans under Can Mobile Loan Scheme of the bank vide loan A/C No. 1/02 dt. 26.02.2002 for Rs.5.22 lakhs, under heavy vehicle small road transport operator, LHV(SRTO) loan A/C No. 6/02 dated 06.09.2002 for Rs.7.20 lakhs to Kuldeep Kumar Agarwal and loan A/c No. 7/02 dated 09.09.2002 for Rs.4.20 lakhs to Devender Kumar, an employee of Kuldeep Kumar Agarwal, on the basis of fake/fabricated documents. He, further, alongwith accused Kuldeep Kumar Agarwal visited M/s Satguru Enterprises, Karol Bagh, New Delhi for purchase of Titan watches and he made an endorsement in his own handwriting on a cheque for Rs.5 lakhs issued by Kuldeep Kumar Agarwal as 'good for payment' which facilitated M/s H.R. Industries and M/s Jai Ambey Roadline to obtain pecuniary wrongful gain to the tune of Rs.57,36,470.53/­ and corresponding loss to the Canara Bank, Paharganj, New Delhi fraudulently made an endorsement 'original verified' on the bogus registration certificate showing hypothecation of vehicle a Toyota Qualis in respect of Canmobile Loan Scheme of the bank for Rs.5.22 lakhs in respect of vehicle No. HR­38­GT/6145 in his own handwriting, whereas the said vehicle was never hypothecated.

5.1 (Prosecution Evidence) - In order to prove the charges, the prosecution got examined 28 witnesses (PW­1 to PW­8, PW­10 to PW­ 29 but PW­9 was partly examined in chief, he was dropped from the array of witnesses on 15.11.2010 by State). The names of witnesses and the purposes of their examination with relevancy are classified as follows:­ [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 13 of 129]

(i) PW­2 Sh. B.V. Nayak, Senior Manager, Canara Bank­ PW­2, being one of the star witnesses, has been examined that at relevant period from 28.6.2000 to 26.7.2003 he was second line Sr. Manager in Canara Bank, Paharganj Branch, when accused Gopal Prasad was Branch In­charge. Further to prove that on 26.2.2002 M/s H.R. Industries opened current account no. 7408 by application and under specimen of accused K.K. Agarwal (Ex. PW­2/A­1 and Ex. PW­2/A­2) in Canara Bank, Paharganj Branch, on the introduction of R.P. Singh, when Sh. Gopal Prasad was Branch Manager. On 26.2.2002, accused Kuldeep Kumar Agarwal applied (by application Ex. PW­2/A­3) vehicle loan for Qualis under Canmobile Loan Scheme, which was endorsed of pre­sanction dated 24.2.2002 (at point X on Ex. PW­2/A­3) by accused Gopal Prasad and consequently formal loan application on prescribed form (Ex.PW­2/A­4) was executed by the accused K.K. Agarwal and his wife Ms. Anu Bansal stood guarantor/co­obligant (Ex. PW­13/X­5), besides executing other documents (agreement Ex.PW­3/A­2, hypothecation of vehicle Ex. PW­11/A­5, guarantee agreement Ex. PW­ 3/A­3 and also letter for execution of document Ex. PW­13/X­6 and Ex. PW­13/X­7). Further to prove the vehicle Qualis was to be purchased from M/s Capital Vehicle, its proforma invoice dated 25.2.2002 (Mark­ A1=Ex. PW­23/A) was furnished by Kuldeep Kumar Agarwal to Canara Bank and after furnishing of proof of deposit of Rs.1,49,000/­ with M/s Capital Vehicles Sales Pvt Ltd/MGF Toyota (being Mark­A3=ExPW23/B on letter head), then sanctioned loan amount of Rs.5.22 lakh vide DD no. 941519 (Ex.PW­2/A­6) was issued in favour of M/s Capital Vehicles Sales Pvt Ltd, which was also acknowledged by MGF Toyota (vide formal receipt Ex. PW­23/D = Mark A­2). Then photocopy of 'particulars of the vehicle' of Qualis bearing registration no. HR 38GT 6145 (Mark A­4) was furnished to Bank, which was initialed by Gopal Prasad at point­A thereon.

In the same way, when Gopal Prasad was Branch Manager of Canara Bank, accused Kuldeep Kumar Agarwal, proprietor M/s H.R. Industries applied for sanction limit of Rs.30 lakh on 28.8.2002 by a written request (Ex. PW­2/A­7), he also furnished formal application form (Ex. PW­2/A­8, wherein Mr. Ravi Bansal, Transporter M/s Shree Durga Roadline stood guarantor/co­obligant and Ravi Bansal also executed his request of co­obligant (Ex.PW­2/A­8), the other documents were also executed and accused Gopal Prasad had also endorsed all of [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 14 of 129] them under his signature vis a vis PW­2 had also signed them as an officer. Further, loan of Rs.24 lakh limit was sanctioned by accused Gopal Prasad against request of Rs.30 lakh but on 13.9.2002 M/s H.R. Industries, proprietorship firm of Kuldeep Kumar Agarwal requested for opening of OCC/OD account, consequently OCC/OD account no. 58126 was opened (in place of erstwhile current account no. 7408) and he had executed application form dated 13.9.2002 (Ex.PW­2/A­12), his specimens with photograph (Ex.PW­2/A­13), agreement dated 13.9.2002 (Ex. PW­2/A­16), guarantee by Ravi Bansal (Ex. PW­2/A­17) and promissory note (Ex. PW­2/A­15). The OD facility was against stock of shellac, nails and hardware. The accused utilized the overdraft facility by way of transferring Rs.5 lakh to M/s Shree Durga Roadline, amount was also transferred to the account of Vivek Bansal and amounts were also withdrawn through different cheques by Raj Kumar, Ram Kishore, Mahender and Devender, despite the loan was sanctioned for improvements of business vis a vis in a short span the amount was withdrawn and the limit of Rs.24 lakh granted to M/s H.R. Industries exceeded upto Rs.33.32 lakhs till 15.1.2003, the same was approved by Branch Manager, Gopal Prasad, contrary to his delegated powers upto Rs.30 lakhs + emergency power of Rs.7.5 lakhs, the delegations of power for loan and advances were described in circular/chart­3 (in Ex. PW­2/A­31). The account of M/s H.R. Industries remained valid in emergency power upto 14.2.2003 and thereafter it became NPA and over­drawings were extended upto Rs.41.45 lakhs till 10.6.2003, which happened during the tenure of accused Gopal Prasad as Branch Manager.

Further, to establish that on 5.9.2002 accused Kuldeep Kumar Agarwal requested by written application for loan of Rs.9,65,000/­ for purchase of second hand Tata Truck bearing registration no. DL 1 GB 2423 (Ex.PW­2/A­36) from M/s Jai Ambey Roadline by furnishing agreement (Ex. PW­2/A­47 between seller Satish Agarwal, Proprietor M/s Jai Ambey Roadline, New Subzi Mandi, Azadpur Delhi and the buyer Kuldeep Agarwal vis a vis a sum of Rs.1,45,000/­ had been paid by buyer on 4.9.2002 out of total amount of Rs.9,65,000/­, against separate receipt Ex.PW­2/A­48) and this application was processed and considered by Gopal Prasad on the basis of pre­sanction vis a vis schedule for payment was carved out by him and loan of Rs.7.20 lakh was sanctioned, the accused Kuldeep Agarwal also executed formal [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 15 of 129] application (Ex.PW­2/A­37), accused Ravi Bansal also gave personal security and executed it (Ex. PW­2/A­38) besides other documents of letter of undertaking (PW­2/A­39), agreement (Ex. PW­2/A­40), guarantee letter (Ex. PW­2/A­42) and guarantee agreement (Ex. PW­ 2/A­43), all of dated 6.9.2002. Xerox copy of registration certificate of vehicle no. DL 1GB 2423 (Ex.PW­2/A­44) was furnished, showing vehicle in the name of Kuldeep Agarwal that the vehicle was hypotecated with Canara Bank, New Delhi and Sh. Gopal Prasad had endorsed it that 'original is verified' by him, its certificate of fitness (Ex.PW­2/A­46) furnished was also verified by Sh. Gopal Prasad under his signature. Consequently, the loan of Rs.8.20 lakhs was disbursed by way of DD no. 941868 dated 6.9.2002 (Ex.PW­2/A­49) in favour of M/s Jai Ambey Roadline, having account with Oriental Bank of Commerce, Rani Bagh Branch and the margin money of vehicle was transferred from the current account no. 7408 of M/s H.R. Industries (shown in statement of account Ex. PW­2/A­50).

Further, to establish about the loan given to Shri Devender Kumar that he had applied for buying new brand Mahindra (CNG Mini Bus) on 6.9.2002 for Rs.4.20 lakhs (vide application Ex. PW­2/A­51 and proforma invoice Ex. PW­2/A­54 issued by M/s Skyline Automobiles) on which Sh. Gopal Prasad, Branch Manager endorsed of pre­sanction visit and also endorsed certain instructions on 8.9.2002, consequently the formal loan application (Ex. PW­2/A­52) was processed, sanctioned memorandum (Ex. PW­2/A­53) was endorsed that hypothecation of vehicle is valued Rs.5,15,000/­, the said Ravi Kumar Bansal stood guarantor/co­obligant in the loan documents. Devender Kumar had furnished the copy of registration certificate of vehicle no. DL IVA 2769 (Ex. PW­2/A­55) which was endorsed by Gopal Prasad in his writing that the original is verified; the said Devender Kumar had opened current account no. 7503 on 7.12.2002 in Canara Bank, Paharganj, which he had opened by his application (Ex. PW­2/A­56) on the introduction of Kuldeep Agarwal, already having account no. 58126 although the loan application of Devender Kumar was processed under his saving bank account no. 21624. The amount sanctioned loan was released by way of DD No. 941873 (Ex.PW­2/A­57) of Rs.4,95,000/­ in favour of M/s Skyline Automobiles, which was encashed through Bank of Baroda, Sansad Marg Branch, New Delhi. Lastly, for proving that accused Gopal Prasad had endorsed "good for payment" on cheque at [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 16 of 129] point A (Ex.PW­2/A­58) in respect of cheque related to the account of K.K. Agarwal issued in favour of M/s Satguru Enterprise.

(ii) PW­3 Sh. M.V. Ramana Rao, Branch Manager, Canara Bank­ PW­3 deposed on the lines of PW­2 since in majority of documents, which were initialed by PW­2 were also processed by this witness PW­

3. Moreover, PW­3 also deposed to prove statement of account of M/s H.R. Industries from period 26.2.2002 to 24.9.2002 (Ex. PW­3/A­1, its another part is Ex. PW­2/A­50). Further, to prove the documents executed by accused Kuldeep Agarwal and surety Anu Bansal in respect of Qualis vehicle (Ex.PW­3/A­2, Guarantee Agreement Ex. PW­ 3/A­3, photocopy of insurance of Qualis HR 38 GT 6145 Ex. PW­3/A­4) as well as that proforma invoice dated 25.2.2002 (Mark A1=ExPW23/A), acknowledgment of payment regarding earnest money on 25.2.2002 (Mark A3=ExPW23/B), photocopy of RC of vehicle no. HR 38GT 6145 (Mark A4=ExPW23/D), sale invoice dated 26.2.2002 (Mark­X), Form­34 (Mark X­3= Ex. PW­5/A) in respect of the said vehicle that it was shown hire purchase in the name of M/s Novelty Finance Ltd., form of intimation confirming about the vehicle was under hire purchase by Novelty Finance Ltd. (Mark X­4). Further, to establish that on 12.9.2002 Kuldeep Agarwal had opened account no. 21639 (Ex. PW­3/A­5) which was got converted into joint account on 1.1.2003 bearing no. 21639 by adding the name of Ms. Anu Bansal. To prove that there was agreement to sell furnished by Kuldeep Kumar Agarwal for buying the second hand vehicle bearing registration no. DL 1 GB 2423, the photocopy of its RC (Ex.PW­3/A­7) was furnished, that it is in the name of Jai Ambey Roadline, the same was endorsed verified from original by Gopal Prasad vis a vis the loan was sanctioned.

(iii) PW­13 Sh. Narender Kumar, Officer Canara Bank, Paharganj­ In order to establish that PW­13 was also working as an Officer from February 2001 to July 2003 in Canara Bank, Paharganj Branch, where accused Gopal Prasad was posted as Branch Manager and PW­2 & PW were also working as Officers, both under Gopal Prasad. Further to establish that while working as Officer in Paharganj Branch, the cheques, accounts and other documents [pertaining to M/s H.R. Industries, Varun Finance Corporation and M/s Laxmi Carrying Corporation with regard to accounts of Ravi Bansal and Kuldeep Kumar] were dealt and to prove signatures and initials of Gopal Prasad [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 17 of 129] on various record (Ex. PW­13/A to Ex. PW­13/G) besides entries in the emergency advance register as well as the overdrawn or passing of cheque in the account of aforementioned firm, was on the instruction of Branch Manager Gopal Prasad.

(iv) PW­20 Sh. Ajit Nair, Manager in Canara Bank, Nehru Place, New Delhi­ to establish that he was working as Manager in Canara Bank at Circle Office, Nehru Place, New Delhi in the year 2003 and Gopal Prasad was in Paharganj Branch (the large branch) from 2001 to 2003. To prove that inquiry was entrusted to him to inquire and report about irregularities in discounting of cheques and sanction of certain loan by Gopal Prasad. Further, to establish that Gopal Prasad had indiscriminately discounted cheques by exceeding his delegated powers in various accounts despite knowing that earlier cheques were being returned unpaid and he had sanctioned some loans for purchase of second hand vehicle. After conducting detailed inquiry alongwith another officer, he furnished his report (Ex. PW­6/A), which he had sent it to Assistant General Manager with letter dated 29.10.204 (Ex. PW­ 20/A). PW­20 has also deposed about the facts and record, which were also deposed by PW­2. In addition, he deposed about 'manual of instruction on bills purchased (Ex. PW­20/B)' that discounting of cheques should only be for business purposes, copy of letter dated 26.2.2002 written by Gopal Prasad to M/s Capital Vehicles Sales Pvt. Ltd. to hypotecate the vehicle in the name of Canara Bank and M/sCapital Vehicles Sales Pvt. Ltd./Toyota Qualis confirmed by letter (Mark PW­20/1) that the vehicle was sold to Kuldeep Agarwal. PW­20 also deposed that photocopy of RC (Mark A­4) was also endorsed by Gopal Prasad that original has been verified. Further to establish that statement of account no. 7408 is of M/s H.R. Industries from period 26.2.2002 to 24.9.2002 (Ex. PW­20/D = Ex. PW­3/A­1), besides to prove that letter dated 15.4.2002 (Ex. PW­20/E) was written by Vivek Bansal to Sr. Manager Canara Bank, Paharganj Branch for loan besides the loan documents (Ex. PW­20/F, of Devender Kumar). Lastly, to prove the visiting cards as well as photographs of inaugural ceremony of the shops in Dwarka.

(v) PW­6 Sh. Y.L. Madan, DGM Canara Bank­ to establish that in the year 2003 when he was working as Dy. General Manager, Canara Bank, Delhi Circle Office, the Branch of Canara Bank at Paharganj was [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 18 of 129] under his Circle/jurisdiction and then information of commission of fraud was reported, he got the matter investigated through Officers Sh. Nayar Ajit Krishnan (PW­20) and Sh. V.S. Harihar Sud, who furnished report dated 7.4.03 (Ex. PW­6/A). Thence, matter was reported to Chief Vigilance Officer followed by complaint DCLF598 1424 dated 28.6.2003 to CBI (Ex. PW­1/D­3).

(vi) PW­1 Sh. K. Suresh Rao, General Manager Canara Bank­ to establish that in February, 2005 he was working as General Manager, Canara Bank, Headquarter, Banglore, where he had received communications (through Vigilance Department) as well as report from CBI seeking sanction to prosecute Mr. Gopal Prasad, Sr. Manager, Canara Bank, Paharganj Branch, New Delhi and on the basis of material produced before him and assessed by him, he gave sanction dated 24.2.2005 (Ex. PW­1/A) to prosecute Gopal Prasad vis a vis PW­ 1 was Disciplinary Authority in respect of portfolio of Sr. Manager in scale­III and scale­I being competent to remove them from the services of bank.

(vii) PW­15 Sh. R. Raja Bhallal, Panel Advocate Canara Bank­ to prove that he was a practicing Advocate from year 2001 and prior to it he was working as Sr. Branch Manager in Vijaya Bank. Further to establish that he was asked by Candra Bank to verify the record and property, which he did; to establish about legal scrutiny reports viz. report dated 31.8.02 (Ex.PW­15/A, in respect of property at ground floor of no. 69, measuring 25.69 sq. meter, pocket­21, block­G, Sector­7, Rohini in the name of Kuldeep Agarwal s/o S.L. Agarwal); report dated 31.8.02 (Ex.PW­15/B, in respect of property at first floor with roof rights of DDA Flat no. 30, measuring 25.69 sq. meter, Pocket­11, Block­D, Sector­7, Rohini in the name of Kuldeep Agarwal s/o S.L. Agarwal) and report dated 31.8.02 (Ex.PW­15/A, in respect of property at ground floor consisting of two rooms out of three rooms without roof rights in DDA built up residential flat no. 30, measuring 25.69 sq. meter, pocket­11, block­D, Sector­7, Rohini in the name of Kuldeep Agarwal s/o S.L. Agarwal, which he gave after scrutinizing the title deeds and link documents relating to the property by verifying the record maintained in the Office of Sub Registrar besides verification of physical possession of the properties. Lastly, to prove that non­encumbrance certificates (Ex. PW­15/D and Ex. PW­15/F) were issued by him vis a vis the office [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 19 of 129] of Sub­Registrar also issued the receipts (Ex.PW­15/E and Ex.PW­ 15/G) besides the bills raised by him.

(viii) PW­18 Sh. S.S.K. Bhagat, Valuer­ to establish that he had retired as Chief Engineer from NDMC in the year 1991 and then he started doing valuation job under the name and style S.S.K. Bhagat, Approved Valuer and he is on the panel of banks inclusive of Canara Bank. The Sr. Manager, Canara Bank had requested him the valuation of shops at ground floor of property no. G­21/69, Sector­7, Rohini, Delhi belonging to Kuldeep Agarwal, which he valued by furnishing his report dated 17.8.2002 under his signature (Ex. PW­18/B). Similarly, he valued the property at first floor and terrace at property no. 30,Pocket­11, Block­D, Sector­7, Rohini in the name of Kuldeep Agarwal and also of property of two shops at ground floor of property no.30, Pocket­11, Block­D, Sector­7, Rohini belonging to Kuldeep Agarwal and furnished his report (Ex. PW­18/D colly.)'; he applied the standard valuation method for carrying the valuation. He had carried the valuation on verbal instruction of Senior Manager of Bank . .........

(ix) PW­23 Sh. Dinesh Panwar, Sales Manager in MGF Toyota/Capital Vehicles Sales Pvt. Ltd., Gurgaon­ to prove that he was Sale Manager in MGF Toyota, Gurgaon and proforma invoice dated 25.2.2002 (Mark­A = Ex. PW­23/A) was issued by MGF Toyota Gurgaon to Kuldeep Kumar Agarwal and a sum of Rs.1,49,000/­ was received from Kuldeep Agarwal as advance payment mentioned as stated in letter (Ex. PW­23/B). The carbon copy of sale invoice dated 26.2.2002 (Ex. PW­23/C=Mark­X) was issued by the said company and formal receipt dated 26.2.2002 (Ex.PW­23/D=Mark­A2) of balance amount and the sale of said vehicle was confirmed to Sr. Manager, Canara Bank, Paharganj by letter (Ex.PW­23/E= Mark PW­20/1). Further, the vehicle was delivered to Kuldeep Agarwal on 19.10.01 on the basis of verbal approval from Standard Chartered Bank and it was delivered by employee Mr. Deepak of MGF Toyota. Lastly, the loan was rejected by Standard Chartered Bank and proposal to City Bank, ICICI Bank etc. for loan was also rejected. However, the balance payment of Rs.5,22,289.52p was received on 26.2.2002 from Canara Bank (Ex.PW­2/A­6) and invoice dated 26.2.2002 (Ex. PW­23/C) was issued on the request of Kuldeep Agarwal despite vehicle was already delivered him on 19.10.2001 [against invoice no. A20010000711 dated [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 20 of 129] 19.10.2001 Mark­B and sale certificate Mark­C issued by MGF Toyota being part of ExPW26/A (colly.)].

(x) PW­26 Sh. Raj Kumar Chopra, General Manager, M/s Capital Vehicle Sales Ltd.­ to establish the documentary record of vehicle Qualis that proforma invoice dated 25.2.2002 of Qualis 2.4 D FS­EB6 (Ex.PW­23/A= Mark­A1) was issued by M/s Capital Vehicle Sales Ltd. in the name of Kuldeep Kumar Agarwal and copy of sale invoice dated 26.2.2002 (Ex. PW­23/C) was in the name of Kuldeep Kumar Agarwal issued by M/s Capital Vehicles Sales Ltd.. The vehicle was delivered him to Kuldeep Kumar Agarwal on 19.10.2001 against invoice no. A20010000711 dated 19.10.2001 Mark­B and sale certificate Mark­C issued by MGF Toyota being part of seizure memo ExPW26/A (colly)

(xi) PW­5 Sh. Raj Kumar, Director in Novelty Finance Ltd. ­ to establish that he was one of the Directors of M/s Novelty Finance Ltd. since the year 2000 and a vehicle bearing registration no. DL 38 GT 6165 was financed for Rs.2,65,000/­ by them to Kuldeep Agarwal and Form No. 34 (Ex. PW­5/A, lying in the record/file of District Transport Office, Faridabad) was issued by them, Mr. Balbir stood guarantor for Kuldeep Agarwal. Kuldeep Agarwal repaid the entire amount by October, 2003

(xii) PW­10 Sh. Ram Chand, Assistant Secretary, District Transport Office, Faridabad­ for establishing that from December, 2000 to July, 2005 he was posted as Assistant Secretary in the office of District Transport Office, Faridabad and certificate of registration no. HR 28 GT 6145 (Ex. PW­10/B=Mark­ X2) bears name of Kuldeep Kumar s/o Shyam Lal, issued under the signatures of Dharam Pal at point­A and the vehicle was hypotecated to M/s Novelty Finance Ltd.. A photocopy of particulars of registration (Mark­A4, in judicial file) in respect of vehicle HR 38 GT 6145 Toyota is showing name of Kuldeep Kumar Agarwal s/o S.L. Agarwal and photo impression of stamp of District Transport Officer, Faridabad but it is forged signature/initial appearing at point­X on Mark­A4, which does not belong to any one in the office. The Form No. 34 (Ex. PW­5/A) bears signature of PW­10 at point­C that hypotecation was in favour of M/s Novelty Finance Ltd., Patiala. He was also examined to establish that the said Qualis vehicle was not hypotecated to Canara Bank as appearing in Xerox copy of RC (it is [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 21 of 129] Mark­A4, which was furnished to Canara Bank Branch by Kuldeep Kumar Agarwal).

(xiii) PW­22 Sh. Dharam Pal, Registration Clerk in the office of District Transport Authority, Faridabad­ to prove that he worked as Registration Clerk in the Office of District Transport Office, Faridabad from November, 1999 to April, 2005, the registration certificate of 17.9.2003 is in respect of vehicle HR 38 GT 6145 issued under the signature of PW­22 (Ex. PW­10/B). Particulars of registration (Mark­A4 part of Ex.PW­20/DK) does not bear signature of PW­22 or anyone of staff member of DTO, Faridabad. Further, to establish that PW­22 is acquainted with the writing of PW­10/Assistant Secretary and Sushil Kumar, Clerk in the office of DTO, Faridabad and PW­22 confirms signature of PW­10 on Ex. PW­5/A at point C as well his own signature at point A on Ex. PW­10/B. He was examined to establish that the said Qualis vehicle was not hypotecated to Canara Bank as appearing in Mark­A4/particulars of vehicle. ` ..........

(xiv) PW­17 Sh. Vinod Kumar Sharma, UDC in MLO, Headquarter, Transport Department, Govt. of NCT of Delhi­ to establish that in the year 2004, he was posted as Upper Divisional Clerk in MLO Headquarter, Transport Department, Govt. of NCT of Delhi pertaining to the seizure memo of record of files (Ex. PW­17/B, Ex. PW­17/C and Ex. PW­17/A) of vehicle bearing registration no. DL 1 GB 2423 (TATA truck) and vehicle bearing registration no. DL 1VA 2769 CNG (Mahindra mini bus). Further, to prove that the vehicle bearing no. DL 1GB 2423 was initially registered in the name of Risal Singh (as per record Ex. PW­ 17/B) and its present/current owner is Rajender Bhardwaj, who had purchased this vehicle from Ghanshyam Dass Verma vis a vis the vehicle bearing registration no. DL 1GB 2423(TATA truck) was never registered in the name of M/s Jai Ambey Roadline or Kuldeep Kumar Agarwal and copy of RC Ex. PW­2/A­44 (showing the name of Kuldeep Agarwal as registered owner and hypothecated with Canara Bank, New Delhi) and another copy of RC Ex. PW­3/A­7 (showing the name of M/s Jai Ambey Roadline as registered owner) are not from the official record of registration of vehicle DL 1GB 2423 (Ex. PW­17/B and Ex. PW­17/C).

Further, to prove the record (Ex. PW­17/C) pertaining to vehicle bearing registration no. DL 1VA 2769 [of CNG Mahindra mini bus], [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 22 of 129] which is also comprising Form No.20 (application for registration of vehcile) under the signature of PW 17 & of MLO Mr. John, identified by PW17.

(xv) PW­8 Sh. Rajender Bhardwaj, Transporter­ to prove that he was in the business of transporter for the last about 15­16 years (he was examined on 15.4.2010 in the court) and he was having trucks inclusive of vehicle bearing registration no. DL 1GB 2423 make 1996, which he had purchased in November­December, 2003 from Ghanshyam Dass Verma and the Form Nos. 30 (Ex. PW­8/A and Ex. PW­8/B) are in his favour, the vehicle was under finance/HP of M/s R.S Rohini Finance & Investment Pvt. Ltd., the payment was tendered and Hypothecation was got canceled and then it was transferred in his name vis a vis PW­8 has no concern with M/s Jai Ambey Roadline or he doesn't known Kuldeep Agarwal.

(xvi) PW­16 Sh. Vipin Kapoor, the then of Officer Oriental Bank of Commerce, Rani Bagh Branch­ to prove that from year 2001 to 2004, he was posted in Oriental Bank of Commerce, Rani Bagh Branch, Delhi and in the phase of investigation, he had handed over certain documents per seizure memo (Ex. PW­16/A) to CBI. Further, to prove that on 6.9.2002 accused Ravi Bansal had opened current account no. 242 in the name of M/s Jai Ambey Roadline (vide his application Ex. PW­11/A­37, specimen Ex. PW­A/36, the applicant had filed rent agreement and his other proofs Ex. PW­11/A­38) on the introduction of another account holder M/s Bajrang Stores of proprietor Kuldeep Kumar Agarwal; the account was operated by M/s Jai Ambey Roadline, wherein pay order of Rs.8,20,000/­ (Ex. PW­2/A­49) was discounted for Rs.5 lakh, after deducting banker's commission, a sum of Rs.4,98,500/­ was credited in that account, having an entry at point­X (in statement of account Ex. PW­16/C) and further three cheques viz. a cheque of Rs.3 lakh and another cheque of Rs.55,000/­ both of of 6.9.2002 (Ex. PW­ 16/D and Ex. PW­16/E) and third cheque of 7.9.2002 of Rs.1,45,000/­ (Ex. PW­16/F) were self drawn for Jai Ambey Roadline; the first two cheques were encashed by Mr. Ravi whom the token was issued and third cheque was encashed by Mr. Devender whom the token was issued. Out of the pay order (Ex.PW­2/A­49) the balance amount of Rs.3,20,000/­ was credited in the account of Jai Ambey on 10.9.2002 (shown at point­Y in Ex. PW­16/C), it was encahsed and payment was [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 23 of 129] received by Kuldeep, although the cheque was in favour of Ramesh or bearer (shown at point at Y­1 in Ex. PW­16/C). The account of M/s Bajrang Stores (Ex. PW­16/B) of Kuldeep Kumar Agarwal was introduced by another account holder M/s Gulshan Electronic, proprietor Gulshan Kumar. The record of statement of account of Bajrang Stores of period 2.7.2001 to 29.7.2004 (Ex. PW­16/J) was also handed over to the police.

(xvii) PW­7 Sh. Kailash Kaushik, Surveyor and Loss Assessor­ to establish that in the year around 2002, he was working as Surveyor and Loss Assessor, after his retirement from Hindustan Motors in 1995­ 1996. Further, that on the request of accused Ravi Bansal (on introduction of Mr. Balbir working in Talco), he carried the valuation of vehicle bearing registration no. DL 1 GB 2423 and gave valuation report dated 4.9.2002 (Ex. PW­2/A­45) under his signatures and handed it over to accused Ravi Bansal.

(xviii) PW­25 Sh. Raj Kumar, Transporter­ to prove that he was operating his office of Dashmesh Golden Transport Co. at C­1 New Subzi Mandi, Azadpur, Delhi since 1981 and that there is no company by name M/s Jai Ambey Roadline at his address nor any other company except office of Association of Fruit Merchants at first floor of C­1, New Subzi Mandi, Azadpur vis a vis there are two floors (i.e. the ground floor and the first floor) in C­1, New Subzi Mandi, Azadpur, Delhi. Moreover, PW­25 is not knowing any Satish Agarwal ...........

(xix) PW­4 Sh. Rajeev Gupta, Manager Skyline Automobiles­ to prove that he was working as Manager in M/s Skyline Automobiles since 1990 being dealers of M/s Mahindra and Mahindra Ltd. in automobile products of Jeeps, CNG mini buses. A Proforma invoice dated 4.9.2002 (Ex. PW­2/A­54) was issued by M/s Skyline Automobiles in favour of intending buyer Devender Kumar and later a demand draft no. 941873 dated 9.9.202 of Rs.4,97,070/­ in favour of M/s Skyline Automobiles issued by Canara Bank (Ex. PW­2/A­57) - A/c Devender Kumar was received from Canara Bank alongwith its letter dated 9.9.2002 (Ex. PW­20/D­H). The receipt no. 33482 dated 9.9.2002 (Ex. PW­4/A), receipt no. 3483 dated 9.9.202 (Ex. PW­4/B) and invoice no. 15257 dated 9.9.2002 (Ex.PW­4/C) were issued by M/s Skyline [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 24 of 129] Automobiles in favour of Devender Kumar and vehicle was delivered to the customer as per acknowledgment appearing on the invoice. It was in respect of Omni bus and invoice in favour of Devender Kumar son of Lal Chand.

(xx) PW­11 Dr. Ravindra Sharma, Assistant G.E.Q.D, CFIS Complex Sector­36A, Chandigarh­ to establish that he is handwriting expert, he was given signatures and writing comprising admitted signatures/writing, specimens of Gopal Prasad (S­1 to S­10), of Ravi Bansal (S­11 to S­25) and of Kuldeep Kumar Agarwal (S­31 to S­35) besides questioned signature/writing, which he had compared, out of which the questioned documents/writings, Q­276 to Q­300, Q­303 to Q­ 314, Q­316 to Q­321, were found in the writing of person having specimen S­1 to S­10; the questioned signature/writing Q­17,Q­18, Q­ 76­Q105, Q­109, Q113­Q133, Q­133A, Q­134 to Q­206, Q­206A, Q­207 to Q­239, Q­273A, the same were found in the writing of the person (whose admitted signatures were A­2(i), A­3 to A­17) of S­11 to S­25 that were of Ravi Bansal. Similarly, the questioned signatures Q­1 to Q­ 16, Q­19 to Q­45, Q­47, Q­49, Q­51, Q­53 to Q­70, Q­73 to Q­75, the same were found in the writing of the person (whose admitted signatures were A­1) of S­31 to S­35 that were of Kuldeep Kumar Agarwal; PW­11 has tendered his detailed report (Ex. PW­11/A­40) alongwith reasons/analysis (Ex. PW­11/A­41) for arriving conclusions in report.

(xxi) PW­12 Sh. Javed Iqbal Khan, Branch Manager, Andhra Bank, Dwarka Branch­ to establish that he was posted as Branch Manager in Andhra Bank, BO­Dwarka, Sector­10, where Mr. Vijay Kumar Prashad opened fixed deposit receipt on 7.1.2003 for Rs.35,524/­ and another receipt dated 4.12.2002 of Rs.25,000/­ (vide FDRs Ex.PW­12/A and Ex. PW­12/B). Similarly, Mr. Manoj Kumar Prashad had also opened FDR for Rs.25,000/­ on 5.10.2012 (Ex. PW­12/C) ; vis a vis to prove the record of account opening form and saving bank account of Vijay Kumar Prasad and of transactions (Ex.PW­12/D to PW­12/G) besides statement of saving bank account no. 1281 (Ex. PW­12/H) of Vijay Kumar. Accused Gopal Prasad had accompanied Vijay Kumar while visiting the Andhra Bank branch and Gopal Prasad had recommended that Vijay Kumar is a good customer and he may be granted loan, [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 25 of 129] however, PW­12 advised to open the bank account and to assess its operation.

(xxii) PW­14 Sh. Gurmeet Singh Chawla, Proprietor M/s Satguru Enterprises­ to prove that he is proprietor of M/s Satguru Enterprises and he was distributor of Titan watches from the year 1992 to 2010 and in the year 2002 Kuldeep Agarwal visited him 4­5 times for seeking/taking dealership of Titan at Dwarka. In December 2002 Kuldeep Kumar Agarwal alongwith another person visited him to buy watches for about 8 to 10 lakhs and to make the payment by way of cheque, he was given cheque of Rs.5 lakh (Ex. PW­2/58) which was endorsed "good for payment" by the said person ,who was introduced as Manager in Bank and PW­14 was also handed over visiting card of Gopal Prasad (Ex. PW­14/A). The said cheque of Rs.5 lakhs in favour of Satguru Enterprise was deposited. In order to establish that watches were also supplied through challans on 10.12.2002 to M/s Dwarka Watch Co. of Kuldeep Agarwal (vide challans Ex. PW­14/B and Ex. PW­ 14/C) and PW­14 also visited the said shop, later its name was changed to M/s Shree Dwarka Watch Co. but the payments used to be made through cheque from the account of M/s Dwarka Watch Co.. Lastly, to establish the identity of shop and of Kuldeep Agarwal through the photographs (Mark­PW­22/2 and Mark­24/5).

(xxiii) PW­28 Sh. R.K. Chopra, co­owner of shops bearing no. F­2 and F­3, Manish Plaza, Phase­I, Sector­10, Dwarka, New Delhi­ to establish that two shops bearing no. F­2 and F­3 at Manish Plaza, Phase­1, Sector­10, Dwarka, New Delhi were purchased in the joint names of PW­28, his daughter Mrs. Manju Chadha and his son­in­law Sanjiv Chadha in the year 2002, both the shops were let out to Kuldeep Kumar Agarwal on rent against rent agreement (Mark PW­24/1 bearing photographs and signatures of each of them) for operating colour laboratoryoratory. [PW­28 was cross examined on behalf of State for establishing that he had seen Manoj Kumar in the said shops while operating under the name and style M/s Dwarka Watch Co./Colour laboratory or the same was being run by Manoj Kumar and Vijay Kumar sons of Gopal Prasad but PW­20 had not supported that plea/suggestion of the State].

(xxiv) PW­19 Sh. Shyam Sunder Sood, owner/landlord of a shop­ to prove that he has a shop at G­5, Building no. 22, Sector­10, Dwarka, [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 26 of 129] New Delhi which he had let out in the year 2002 by registered lease agreement (Mark PW­19/1) to Ms. Anu Bansal, which is bearing photographs of PW­19 (at point C and C­1) and of Ms. Anu Bansal (at point D and D­1) which was witnessed by Ashok Garg (at point E besides his photograph at point F) and also witnessed by Kuldeep Agarwal (at point G and his photograph at point H), it was let out to Ms. Anu Bansal for operating showroom of watches. [PW­19 was also cross examined on behalf of State to establish that the said shop was being operated under partnership of Kuldeep with Gopal Prasad and latter's two sons under the name and style Dwarka laboratory Colour and Dwarka Watch Co. in the shop of Mr. Chopra and of PW­19, however, PW­19 has not supported except that Gopal Prasad's son Manoj Kumar was seen by PW­19 who used to sit in the shop of M/s Dwarka Watch Co./Colour in that shop.] (xxv) PW­21 Sh. Rakesh Sharma, Assistant Assessor and Collector in Assessment and Collection Department, MCD, Rohini Zone­ for establishing and proving the receipts G­8 no. 681083 dated 3.11.1989 (Ex. PW­21/A) was issued in the name of Kuldeep Bansal in respect of property no. B­11/13, Sector­7, Rohini on account of payment of property tax of Rs.3,600/­ and also proving the receipts G­8 no. 987065 dated 22.3.2002 (Ex. PW­21/B) was issued in the name of Kuldeep Bansal in respect of property no. G­21/69, Sector­7, Rohini on account of payment of property tax of Rs.2,500/­ against cheques, when PW­21 was Assistant Assessor and Collector, MCD Rohini Zone from August, 1999 to September,2001 and from June,2003 to August,2006, however the property tax tendered through cheques but both of the cheques were returned back unpaid and properties were not transferred/mutated in the property tax record due to non payment of property tax.

(xxvi) PW­24 Sh. Ashok Garg, Real Estate Agent, Proprietor of Garg Properties­ to prove that he was property dealer and operating his establishment under the name M/s Garg Properties at ground floor of plot no. 16, Sector­10, Dwarka. Accused Kuldeep Agarwal had approached him to have space on rent in Dwarka and he was shown space at plot no. 18 of Sector­10 and then meeting was organised between Kuldeep Kumar Agarwal and Mr. Chopra/PW­28 which result into materialization of transaction and registered lease deed dated 5.9.2002 (Mark PW­24/1) in respect of shops no. F­2 and F­3, First [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 27 of 129] Floor, at Manish Royal Plaza­1, Plot no. 19, MLU Dwarka was prepared between Raj Kumar Chopra (PW­28) & Ors. and accused Kuldeep Agarwal.

Further, Kuldeep Agarwal also met the PW­24 that he was in need of some more space at ground floor and even Gopal Prasad also visited him once or twice that the space required is at ground floor for operating business of watches, consequently after some efforts, the meeting took place with Shyam Sunder Sood owner of a shop at ground floor, Plot no.22, Sector­10, Dwarka and lease agreement dated 26.11.00 (Mark PW­19/I) was entered between landlord Shyam Sunder Sood and Smt. Anu Bansal in respect of space known as G­5 at Ground Floor, the lease agreement bears signature of all of them besides their photograph. Further, to establish from photographs (Mark­24/3, Mark­ 24/4 and Mark­24/5) they are showing photographs of Gopal Prasad in all the three photographs and of Kuldeep Agarwal in two photographs. Lastly, a young man used to sit in the shop and Kuldeep Agarwal used to remain very rarely present in the shop.

(xxvii) PW­27 Sh. Vijay Kumar Saxena, employee in Dwarka Colour laboratory­ to establish that in October,2002 he was working in Dwarka Colour laboratory, Sector­10 of accused Kuldeep Kumar Agarwal located at first floor and there was another shop of Kuldeep Agarwal at ground floor which was a watch shop (he was cross examined on behalf of State for establishing that one Mr. Manoj Kumar is shown in the photographs Mark PW­24/4, PW­24/5 besides accused Kuldeep Kumar present in the shop or Gopal Prasad was partner in Dwarka Colour laboratory or his sons Vijay Kumar and Manoj Kumar have to manage the shop, however, PW­27 failed to support this version put to him by the State).

(xxviii) PW­29 Inspector P.K. Khanna, CBI, New Delhi­to establish that he was Investigating Officer of this case from inception after registration of FIR (Ex PW29/A) till the conclusion of investigation and during that phase not only he recorded the statement of witnesses but also collected voluminous record, either from the public offices like Canara Bank or Regional Transport Authority or from private establishments with regard to the relevant documentary record involved in the case vis a vis the material was analyzed and expert opinion on writings/signatures was also applied and obtained, appropriate search [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 28 of 129] and seizure was also carried and finally after collection of all these material, the charge­sheet was filed against all the accused. Moreover, one of the accused Gopal Prasad was Bank Manager, he being a public servant and in order to prosecute him, he applied for appropriate sanction to prosecute him, for which he had sent appropriate record/report alongwith covering letter and ultimately sanction was also granted to prosecute the said Gopal Prasad. As appearing, PW­29 is an Anchor of the case from its inception till the filing of the police report.

5.2 Majority of the witnesses have been cross examined on behalf of the accused persons, to challenge their veracity and to establish the accused are innocence as well as no wrong was committed by them that accused A­3 Gopal Prasad had exercised his duties within the parameters and the same were performed within the norms and neither there was any conspiracy nor any wrong was committed by him as the duties and functions were performed within banking practice vis a vis the Paharganj Branch of Canara Bank was under going losses but after joining of accused Gopal Prasad as Branch Manager, the financial conditions of the branch was ameliorated to a large branch from small branch because of increase of business, profits, attraction of customers, increase of clientèle, increase in lending, earning of more interest and commissions which is one of the main criteria of profitability. The sanction is not only invalid but without following the process of law. The other accused namely A1 Ravi Bansal and A2 Kuldeep Kumar Agarwal had also cross examined the witnesses to challenge their veracity as well as no offence was committed by them and the prosecution witnesses are not inspiring confidence, rather their statement are establishing that the records/documents of accused are as per law, the [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 29 of 129] collateral securities were utilised by selling immovable properties instead of stock­in­trade etc., amount collected was more than due.

6.1 (Statement of accused persons & defence evidence) - After closure of prosecution evidence, all the three accused have been examined without oath individually under section 313 r/w section 281 Cr.P.C. by putting them the circumstances appearing against them in oral evidence and documentary records, they have responded in different expressions about some facts are not known to them or the allegations are incorrect and some of them were denied by them, inclusive of denial of expert opinion of handwriting expert.

6.2 Accused A1 Ravi Bansal explained his stand that he is illiterate, his brother A2 Kuldeep Kumar Agarwal used to obtain his signatures and of his wife on blank papers, blank forms, blank cheques which they used to sign under good faith, he never run any firm or conducted any business. Later he came to known that various firms were opened in his name and in the name of his wife and misused the signatures and papers, otherwise the investigation was also biased. He opted to lead defence evidence.

6.3 Similarly, accused A2 Kuldeep Kumar Agarwal has also responded the questions by different expressions either many facts are matter of record but he had admitted that he is proprietor of M/s H.R. Industries, he applied and opened bank account/current account/OCC and took the loan from Canara Bank for improvements of business and executed certain documents besides loan for buying vehicles, however he denied the other allegations of siphoning of the money or withdrawal [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 30 of 129] of the amount alleged against him. He also expressed his ignorance about certain facts and denied many other facts with regard to operation of shops in Dwarka. He put his defence that loan was obtained by pledging the valuable immovable properties and the properties were sold by the bank, its proceeds have been appropriated, which are more than Rs.65 lakhs realized from the sale of the properties, he bought the vehicles against consideration and the vehicles bought were utilized by him, he never took loan/finance for Qualis vehicle from anyone else other than loan from Canara Bank and no money was received from Standard Chartered Bank or Novelty Finance Ltd.. He also opted for defence evidence.

6.4 Accused A3 Gopal Prasad in his response to the questions, explained that the documentary record or his functioning as a Branch Manager are matter of record, he had discharged his duties within the parameter. However, he denies the allegations of collusion or conspiracy or abuse of emergency power for grant of additional 25% amount or while processing the application either for OCC/OD or for applications for processing the loan vis a vis the material/record was also considered by other officers working in the bank and the same were also verified, even on the day when he was on leave. He denied the allegations with regard to his photographs in respect of Dwarka Colour laboratory or rent agreement between Raj Kumar Chopra and Kuldeep Agarwal or about the watch shop besides that Vijay Kumar and Manoj Kumar used to sit in that shop. He expressed his ignorance about many facts either pertaining to other accused or the opinion of handwriting expert by suggesting his defence that it is a false and [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 31 of 129] fabricated case because of conspiracy at higher official levels from the Bank with CBI. He also supplemented that he was issued charge­sheet by the department for same set of allegations, he was removed from services but it was converted into compulsory retirement by appellate authority and the same was also challenged in writ before Hon'ble High Court of Delhi, the order of compulsory retirement of disciplinary authority was quashed and he was given all terminal benefits including pension etc. There exists no liability of Bank against other accused since the recoveries have been effected by sale of secured properties in favour of the Bank. He also opted for the defence evidence.

6.5 At the stage of defence evidence accused A1 Ravi Bansal and accused A3 Gopal Prasad gave their respective statements on 23.1.2017 and 10.1.2017 that they do not want to lead defence evidence. Their defence evidence was closed.

6.6 However, accused A1 Kuldeep Kumar Agarwal got examined Sh. Jitender Singh Ahuja, Sr. Manager Canara Bank as DW­1 for establishing that there was account no. 58126 of M/s H.R. Industries, with Canara Bank, Paharganj Branch and an amount of Rs.41.55 lakhs was shown in NPA, however, the three properties mortgaged were sold and an amount of Rs.67.44 lakhs was recovered pursuant to DRT proceedings. Then he closed the defence evidence.

7.1 (Final hearing) - At this stage Sh. Raj Kamal, Ld. Public Prosecutor for State opened the final submissions followed by submission on behalf of accused persons. Shri Amit Khanna, ld. Counsel for accused Kuldeep Kumar Agarwal, Shri Hari Pillai, Ld [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 32 of 129] Counsel for accused Gopal Prasad and Shri J.S. Misra, Ld Counsel (Legal Aid counsel) for accused Ravi Bansal presented their respective submissions.

7.2 It is relevant to mention that Shri Hari Pillai, Advocate and Shri J.S. Misra, Advocate came into picture at the stage of final hearing, certified record was obtained by one of them before beginning the submission vis a vis the legal aid Counsel was also cooperated by the other counsels in making available of record for effective submission, it is voluminous/multi­folders record. The Court had also allowed legal interviews to last two counsel if and when requested, since two accused are in judicial custody on the eve of their under­going sentence in other case.

7.3.1 At this juncture Sh. Raj Kamal, Public Prosecutor opened the final submissions and the contents of charge­sheet, the formal charge framed were kept on one side and evidence recorded was kept parallel to it by reading them together that what was charge­sheet and formal charge framed has been proved on the basis of evidence produced on behalf of prosecution. There are oral statement of witnesses as well as documentary record either from the point of view of opening of the account by Kuldeep Kumar Agarwal with Canara Bank, Paharganj Branch and then availing the overdraft facility, which was up to Rs.24 lakhs but the Branch Manager exceeded his jurisdiction and facility was extended much more beyond of Rs.30 lakhs, it was not utilizsed for expansion of business of lakhdana for which it was sanctioned, the end use was also not supervised by accused Gopal Prasad. Accused [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 33 of 129] Kuldeep Kumar Agarwal obtained vehicle loan for buying Qualis vehicle bearing registration no. HR 38GT 6145 by procuring the documents as well as furnishing false record of registration certificate etc. Then in the same style another second hand vehicle bearing registration DL 1GB 2423 (Tata Truck) was purchased, by manipulating the record by accused Kuldeep Kumar Agarwal and Ravi Bansal, that too in connivance of Gopal Prasad. The children of Gopal Prasad were also doing business of tour and travel as well as colour laboratory and a vehicle bearing registration no. DL 1VA 2769 (Mahindra Bus) was also bought in the name of Devender Kumar (since deceased), it was actually being used other accused & by children of Gopal Prasad and this vehicle was also financed by Canara Bank, Paharganj Branch by sanctioning the loan by accused Gopal Prasad in the capacity of its Branch Manager. This Devender Kumar was employee of Kuldeep Kumar Agarwal. Therefore, all the accused are doing all these activities under their confidence and conspiracy, which do not leave any other scope except to held all of them guilty. There cannot be direct evidence of conspiracy but the circumstances emerging are exposing their connivance and conspiracy.

7.3.2 Sh. Hari Pillai, Advocate for Gopal Prasad has made the submissions, which for the purposes of discussion can be split into two parts viz. on the point of validity of sanction to prosecute public servant either u/s 19 of the Prevention of Corruption Act 1988 or u/s 197 of the Code of Criminal Procedure 1973 and the contentions are based that it is not a valid sanction nor the sanctioning authority was provided with complete record nor it was able to apply its independent mind to form [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 34 of 129] an opinion on the point of sanction and a ready made draft sanction was given by the CBI, which was mechanically acted upon by the sanctioning authority. The other limb of submission is that by reading the entire material together alongwith the documentary record, it will not make out any mala­fide or mens­rea to constitute any offence of criminal misconduct against him, it is too far to conceive of conspiracy or offences of IPC. In fact the material on record proves that he was performing his duties in the best way, as per admitted fact by star witnesses (Senior Officers of Canara Bank) a loss running branch of Canara Bank, Paharganj was ameliorated to a profit earning branch after joining of Gopal Prasad as its Manager, which could not be possible without hardworking, sincerity, devotion. Moreover, in the departmental inquiry it is found to be case of irregularities or negligence, which cannot be given colour of criminal intend or offence. The prosecution failed to establish the case against Gopal Prasad.

7.3.3 Sh. Amit Khanna, Advocate for accused Kuldeep Kumar Agarwal contends that the case of prosecution is that all the accused made a conspiracy and then bank accounts were opened followed by sanctioning of loan either for overdraft facility to Kuldeep Kumar Agarwal or for vehicles' loan (for Qualis and Tata Truck) and another loan to Devender Kumar, out of that conspiracy. Whereas the accused Kuldeep Kumar Agarwal was sanctioned loan, after opening of the account for overdraft facility against security of stocks and book debts as the prime security as well as collateral security of three immovable properties which were processed by Bank Officers/star witnesses PW2 and PW3, there is no iota of evidence that any of the documents was [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 35 of 129] forged or the Bank was cheated of any amount. In case there was non­ payment of any amount, it may be breach of agreement or the dispute will be of civil nature and for that purposes the immovable properties of collateral security have already been disposed off and much more amount had been realized by the Bank. As a matter of record, even the godown of Kuldeep Kumar Agarwal was sealed by the Bank, causing losses to the Kuldeep Kumar Agarwal as there was huge stock of goods inclusive of perishable nature and accused suffered losses at the hands of Bank. Similarly, the vehicles were bought against invoices, agreement was also executed, amount was directly issued in favour of vendor of vehicle and the relevant record produced on behalf of prosecution or documentary record collected do not make out any offence against the accused. He deserves acquittal.

7.3.4. Sh. J.C. Mishra, Advocate (Legal Aid Counsel) for accused Ravi Bansal submits that entire evidence is to be viewed together and by reading one by one, a simple conclusion will be drawn that Ravi Bansal is not directly or indirectly in the picture at all, what to talk of so called allegations of conspiracy, no irregularity or discrepancy was found with regard to guarantee of Ravi Bansal for Kuldeep Kumar Agarwal furnished with Canara Bank, Pahaganj Branch, New Delhi. Otherwise, to stand surety is no offence at all. There is no proof that cheques issued for M/s Durga Roadline were not in trade transaction via vis Bank officers/witnesses have also deposed that they have no knowledge about transactions of those cheques, it cannot be assumed that there were no commercial transactions, the prosecution is assuming the facts. Whereas prosecution was required to establish the [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 36 of 129] facts beyond doubt. Accused Ravi Bansal has also no role at all in the Qualis vehicle nor any proof of conspiracy nor the prosecution could prove that Ravi Bansal was involved in the transaction of second hand truck, particularly it was duty of Bank to inspect the vehicle, verify its registered owner, the valuer/PW7 was also to follow the norms strictly and then Bank had to release the amount vis a vis it is a transaction between Bank and Kuldeep Kumar Agarwal. Nowadays, it is not difficult to procure photographs, the accused Ravi Bansal is also a victim of this aspect at the hands of his brother co­accused Kuldeep Kumar Agarwal, which is emerging from the record, otherwise there is no proof of operation of current account no.242 by Ravi Bansal or receipt of amount or withdrawal from the account. The prosecution failed to prove case against Ravi Bansal.

7.3.5 Ld. Defence counsel Shri Amit Khanna, Advocate has also reservation to the plea of accused Ravi Bansal against Kuldeep Kumar Agarwal, firstly the plea of accused Ravi Bansal cannot be read as of Prosecutor against Kuldeep Kumar Agarwal nor there is such proof.

7.3.6 The aforementioned submissions & counter submissions on behalf of State and also on behalf of defence are just the outlines to reflect the contentions of each side, the analytical assessment will be carried point­wise appropriately when the findings are to be given.

8.1 (Findings with reasoning) - The contentions of both the sides are considered keeping in view the material on record, which are documentary in nature, the oral statements of witnesses, opinion of the expert besides the plea of accused persons vis a vis provisions of law [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 37 of 129] and the precedents. Since there are rival contention, its outline has been given in paragraph 7.3 above, thus the same will be discussed point by point appropriately.

8.2 However, while considering them and assessing the evidence, there are many documents which are not disputed either in evidence or otherwise become unchallenged, these undisputed documents or facts are enumerated in the forthcoming sub­paragraph 8.3A to 8.3F with nature of record­ 8.3A [Regarding ­ Bank account opened by accused Kuldeep Kumar Agarwal/M/s H.R. Industries] ­ (A1)­ Account opening form dated 26.2.2002 of account no. 7408 of M/s H.R. Industries (Ex. PW­2/A­1).

(A2)­ Specimen signature card of Kuldeep Kumar Agarwal, Proprietor M/s H.R. Industries (Ex. PW­2/A­2).

(A3) Written application dated 28.8.2002 on letter head of H.R. Industries by M/s H.R. Industries for sanctioning limit of Rs.30 lakh to improve business (Ex. PW­2/A­7).

(A4) Formal application dated 28.8.2002 for OD facilities by H.R. Industries through proprietor Kuldeep Kumar Agarwal for loan, wherein Ravi Bansal, businessman (Transporter) M/s Shree Durga Roadline stood guarantor (Ex. PW­2/A­8).

(A5) Process noting dated 28.8.2002 on the application carrying processing noting by PW­3 M.V. Raman Rao (Ex. PW­2/A­9) besides the remarks of accused Gopal Prasad alongwith guarantee of Ravi Bansal.

(A6) Appraisal memorandum dated 29.8.2002 of M/s H.R. Industries (Ex. PW­2/A­10).

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 38 of 129] (A7) Opening of OCC/OD account no. 58126/fresh account opening form dated 13.9.2002 (Ex. PW­2/A­12) by M/s H.R. Industries, Proprietor Kuldeep Kumar Agarwal consequent to current account no. 7408 .

(A8) Specimen signature of M/s H.R. Industries, proprietor Kuldeep Kumar Agarwal and of co­obligant Ravi Bansal (Ex. PW­2/A­13).

(A9) Request dated 13.9.2002 for overdraft (OCC/OD) facility of Rs.30 lakhs by M/s H.R. Industries through proprietor Kuldeep Kumar Agarwal (Ex. PW­2/A­14), on which limit of Rs.24 lakhs was sanctioned.

(A10) Promissory note dated 13.9.2002 by M/s H.R. Industries through proprietor Kuldeep Kumar Agarwal for Rs.24 lakhs (Ex. PW­2/A­15) in respect of limit sanctioned of OCC/OD.

(A11) Agreement dated 13.9.2002 by Kuldeep Kumar Agarwal, Proprietor M/s H.R. Industries (Ex. PW­2/A­16), guarantee agreement by both principal debtor Kuldeep Agarwal, proprietor M/s H.R. Industries and guarantor Ravi Bansal of 1449/13, Gali no. 8, Darya Ganj, Shahdara (Ex.PW­2/A17= Ex. PW­11/4).

(A12) Delegation of powers for loans and advances of Canara Bank (Ex. PW­2/A­31).

(A13) Retail leading schemes of Canara Bank (Ex. PW­2/A­32).

(A14) Cheques issued and withdrawn from the OCC/OD account either by individuals or by account payee (Ex. PW­2/20, Ex. PW­2/26,Ex. PW­ 2/27, Ex. PW­2/28, Ex. PW­2/29, Ex. PW­2/30).

(A15) Emergency Advance Register (Ex. PW­2/30/I = PW­29/I) containing entries (Ex. PW­13/A to PW­13/G) under the initials of Gopal Prasad.

(A16) Statement of account no. 7408 of M/s H.R. Industries from 15.9.2002 to 21.12.2009 ( Ex. PW­2/A­12).

8.3B [Regarding ­ Canmobile loan/vehicle Qualis bearing registration no. HR38 GT 6145]­ (B1) Plain Handwritten application dated 26.2.2002 by Kuldeep Agarwal, proprietor M/s H.R. Industries for loan under Canmobile [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 39 of 129] scheme for buying Qualis for Rs.6,37,499.50p of 90% amount (Ex. PW­ 2/A­3) and it is bearing pre­sanction remarks by Gopal Prasad at point­ X. (B2) Proforma invoice dated 25.2.2002 (Ex. PW­23/A= Mark­A1) by MGF Toyota/M/s Capital Vehicles Sales Pvt. Ltd. issued in the name of Kuldeep Kumar Agarwal .

(B3) Formal application dated 26.2.2002 (Ex. PW­2/A­4) by Kuldeep Agarwal and co­obligant/guarantor Dr. Anu Bansal.

(B4) Guarantee dated 26.2.2002 (Ex. PW­13/X­5) by Dr. Anu Bansal, carrying approval/remarks by Gopal Prasad.

(B5) Agreement dated 26.2.2002/deed of hypotecation of vehicle (Ex. PW­3/A­2= Ex. PW­11/5) by Kuldeep Kumar Agarwal; agreement of guarantee dated 26.2.2002 (Ex. PW­3/A­3) by Kuldeep Kumar Agarwal and Dr. Anu Bansal alongwith documents of Canmobile loan (Ex. PW­ 13/X­6, Ex. PW­13/X­7 and Ex. PW­11/6).

(B6) Letter/certificate dated 25.2.2002 (Ex PW23/B) written by M/s Capital Vehicles Sales Pvt. Ltd. to Sr. Manager Canara Bank confirming that a sum of Rs.1,49,000/­ was received as advance payment from Mr. Kuldeep Kumar for Toyota Qualis Model B­6 (Met).

(B7) Letter dated 26.2.2002 (Ex. PW­20/C) written by Canara Bank to M/s Capital Vehicles Sales Ltd. by enclosing cheque no. 941519 for Rs.5,22,289.52p and requesting M/s Capital Vehicles Sales Pvt. Ltd. that the Qualis vehicle is to be hypothecated in favour of Canara Bank.

(B8) Receipt no. 3551 dated 26.2.2012 (Ex. PW­23/D = Mark A2) by M/s Capital Vehicles Sales Pvt. Ltd about receipt of account payee cheque no. 941519 for Rs.5,22,289.52p (Ex PW2/A6) issued by Canara Bank on account of Kuldeep Kumar Agarwal for Toyota Qualis.

(B9) Sale Invoice dated 26.2.2002 (Ex. PW­23/C = Mark­X) by MGF Toyota/M/s Capital Vehicles Sales Pvt. Ltd in favour/name of Kuldeep Kumar Agarwal for sale of Qualis vehicle by mentioning hypothecated to Canara Bank, Paharganj, New Delhi .

8.3C [Regarding­ Second hand TATA Truck bearing registration no. DL 1GB 2423] [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 40 of 129] (C1) Statement of account no. 7408 of H.R. Industries from 26.2.2002 to 24.9.2002 (Ex. PW­3/A­1= Ex. PW­20/D).

(C2) Statement of account no. 7408 of H.R. Industries from 15.9.2002 to 21.12.2009 ( already Ex. PW­2/A­12).

(C3) Hand written application dated 5.9.2002 of Kuldeep Agarwal (Ex. PW­2/A­36) to Sr. Manager, Canara Bank for purchase of second hand Tata truck open body for Rs.9,65,000/­ to be purchased from M/s Jai Ambey Roadline, by furnishing copy of Registration Certificate (Ex. PW­ 2/A­37), permit and fitness copy (Ex. PW­2/A­46), valuation certificate (Ex. PW­2/A­45), sale agreement with the seller on non­judicial stamp paper(Ex. PW­2/A­47) and receipt (Ex. PW­2/A­48) of advance amount of Rs.1,45,000/­ tendered to seller by applicant Kuldeep Kumar Agarwal.

(C4) Remarks including pre­sanction noting in the writing of Sh. Gopal Prasad with calculation of EMI at point­A (on Ex. PW­2/A­36).

(C5) Sale agreement dated 4.9.2002 (Ex. PW­2/A­47). between seller/Satish Agarwal, proprietor M/s Jai Ambey Roadline, C­1 New Subzi Mandi, Azadpur, Delhi and buyer Kuldeep Agarwal in respect of said truck for a total consideration of Rs.9,65,000/­ out of which Rs.1,45,000/­ was paid by Kuldeep Agarwal on 4.9.2002 (C6) Receipt dated 4.9.2002 (Ex. PW­2/A­48, filed with loan application) of Rs.1,45,000/­ issued by seller in respect of sale of Tata truck bearing registration no. DL 1 GB 2423 to Kuldeep Agarwal as per the terms of agreement dated 4.9.2002.

(C7) Valuation report dated 4.9.2002 (Ex. PW­2/A­45) by Sh. Kailash Kaushik, Surveyor and Loss Assessor in respect of valuation of truck Tata­2516/Model 2000 registration no. DL 1 GB 2423 of registered owner Jai Ambey Roadline by valuing it as Rs.9,65,000/­.

(C8) Application cum appraisal form dated 6.9.2002 (Ex. PW­2/A­37) executed by Kuldeep Kumar Agarwal to buy Tata truck from Jai Ambey Roadline, C­1 New Subzi Mandi, Azadpur Delhi against hypotecation and personal guarantee of Ravi Bansal/guarantor (Ex. Pw­2/A­38), Ravi Bansal became co­obligant for the same.

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 41 of 129] (C9) Letter of undertaking regarding loans/advances dated 6.9.2002 by Kuldeep Agarwal to buy the vehicle from Jai Ambey Roadline (Ex. PW­ 2/A­39).

(C10) Agreement/deed of hypotecation dated 6.9.2002 of said vehicle (Ex. PW­2/A­40).

(C11) Agreement of Guarantee dated 6.9.2002 (Ex. PW­2/A­43= Ex. PW­11/8) executed by applicant Kuldeep Agarwal and Ravi Bansal for liability of Rs.7,20,000/­.

(C12) The letter of execution of documents (Ex. PW­2/A­41) and covering letter (Ex. PW­2/A­42) both of dated 6.9.2002 and that at that time Gopal Prasad was Branch Manager of Canara Bank.

(C13) Demand Draft dated 6.9.2002 (Ex PW2/49) issued by Candra Bank in favour of seller of vehicle/ Jai Ambey Roadline.

8.3D [Regarding­ Accounts of Ravi Bansal and of Kuldeep Kumar Agarwal in Oriental Bank of Commerce, Rani Bagh Branch] (D1) Application form for opening of current account no. 214 dated 18.7.2002 (Ex. PW­16/B) by Kuldeep Agarwal as proprietor of M/s Shree Bajrang Stores accompanying rent agreement dated 16.7.2002 (Ex. PW­16/J colly.) for address/rented Shop no. 10, Krishna Plaza, Sector­8, Rohini.

(D2) Specimen seal & signature and photograph of Kuldeep Agarwal for opening the account (Ex. PW­16/H) in the name of Shree Bajrang Store.

(D3) Application form, the introduced by M/s Shree Bajrang Store of Kuldeep Agarwal, for opening of current account no. 242 dated 6.9.2002 (Ex. PW­11/A­37) by Ravi Bansal as proprietor of Jai Ambey Roadline at Godown no. 2, Chugh Ware House Compound, Old Semapuri Road, U.P. Border, Delhi.

(D4) Specimen of signature & seal and photograph of Ravi Bansal for opening the account (Ex. PW­11/A­36) in the name of Jai Ambey Roadline furnished with application form (Ex PW11/A37) being unchallenged record during statement of PW16.

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 42 of 129] (D5) Operation of account by Ravi Bansal through DD/cheques ­ (i) Demand Draft dated 6.9.2002 (Ex PW2/49) issued by Candra Bank in favour of seller of vehicle/ Jai Ambey Roadline, (ii) withdrawals through bearer or self cheque Ex PW16/D to Ex PW16/G (iii) Statement of account were disputed by oral explanation of denial at the stage of statement u/s 313 CrPC and final hearing, however, no contrary evidence is lead to prove the stand taken in last phase nor PW16 was cross­examined on these score, thus record is unchallenged.

8.3E [Regarding ­ vehicle bearing registration no. DL 1VA 2769 CNG Mahindra Mini Bus & loan account no.7/02]­ (E1) Ex. PW­2/A­56, application for opening bank current account (no. 7503) with Canara Bank, Paharganj Branch, New Delhi by Devender Kumar s/o Sh. Lal Chand, Proprietor M/s Durga Trading Company, the application is accompanied with Form No.­60 and copy of ration card, it was introduced by accused Kuldeep Kumar Agarwal, Proprietor M/s H.R. Industries.

(E2) Ex. PW­2/A­51 application dated 6.9.2002 for for loan for purchase of a new brand Mahindra CNG Mini Bus, bearing pre­sanction noting dated 8.9.2002 by accused Gopal Prasad at Point­A. (E3) Ex. PW­2/A­52 about appraisal form dated 9.9.2002 by Canara Bank for loan of Rs.4.20 lakhs for said vehicle.

(E4) Ex. PW­2/A­53 dated 9.9.2002 of sanction memorandum by Canara Bank for amount of Rs.4.20 lakhs in the name of Devender Kumar.

(E5) Ex. PW­2/A­54 proforma invoice dated 4.9.2002 for Rs.5,14,620/­ in the name of Devender Kumar for Mahindra CNG Bus issued by M/s Skyline Automobiles, Jhandewalan Extension, Delhi.

(E6) Confirming letter Ex. PW­11/9 dated 9.9.2002 r/w Ex. PW­11/10 of deed executed by Devender Kumar as a principal borrower and accused Ravi Bansal as a guarantor for buying the vehicle alongwith letter of undertaking and deed of hypothecation by Devender Kumar .

(E7) Ex. PW­2/A­57 demand draft no. 941873 dated 9.9.2002 of R.4,95,070/­ issued by Canara Bank in favour of M/s Skyline Automobiles for the said vehicle on account of Devender Kumar.

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 43 of 129] (E8) Ex. PW­20/DH dated 9.9.2002 written by Canara Bank to M/s Skyline Automobiles in respect of tender of demand draft of Rs.4,95,070/­, aforementioned, that the vehicle may be delivered to borrower/buyer Devender Kumar and the bill/invoice of vehicle should reflect name of Canara Bank being hypothecation clause.

(E9) Ex. PW­4/A receipt dated 9.9.2002 of Rs. 4,95,070/­ in respect of receipt of amount by way of demand draft dated 9.9.2002 on account of buyer Devender Kumar issued by M/s Skyline Automobiles, Jhandewalan Extension, Delhi, by endorsing that vehicle is hypothecated to Canara Bank, Pahar Ganj Branch, New Delhi.

(E10) Ex. PW­4/B another receipt dated 9.9.2002 of Rs,1,500/­ of cash deposited by Devender Kumar and issued by M/s Skyline Automobiles.

(E11) Ex. PW­11/11 of delivery of vehicle receipt dated 9.9.2002 whereby the said vehicle was delivered by M/s Skyline Automobiles to invoice/buyer Devender Kumar, the actual recipient of vehicle had signed at Q­33, (which is signature of Kuldeep Kumar Agarwal as per report Ex. PW­11/40).

(E12) Ex. PW­17/C of 10.9.2002 containing Form No. 20 for registration of motor vehicle alongwith Form No. 34 by applicant Devender Kumar and registration no. DL 1V.A 2769 was allotted by RTO.

(E13) Ex. PW­2/A­55 Certificate of Registration of vehicle DL 1VA 2769 in the name of Devender Kumar showing HP/ lease agreement with Canara Bank in respect of mini bus Mahendra.

8.3F - Accused Ravi Bansal's counsel had cross­examined PW2 & PW3 (of Canara Bank, Paharganj Branch, New Delhi) with regard to documents for standing surety for his brother Kuldeep Kumar Agarwal, he specifically suggested, as case of A1 Ravi Bansal, that there was no irregularity or flaw in the record, while executing those documents. But later­on accused Ravi Bansal took contrary plea as if his signatures were obtained on many papers by his brother Kuldeep Kumar Agarwal and it were misused by him too. PW16 (of Oriental Bank of Commerce, Rani Bagh Branch) came into witness box much after statements of PW2 and PW3, even PW16 was not cross­examined to challeng those documents of opening of the account no.242 or its operation by person other than Ravi Bansal. Accused Ravi Bansal had also replied so in [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 44 of 129] his statement u/s 313 CrPC vis a vis report of handwriting expert (Ex PW11/A40) is not valid or not to be believed. However, it just remained hollow plea for want of proof of that pleas by evidence and also in view of facts that specimens (S11 to S25, which are Ex PW11/A11 to Ex PW11/A25) of Ravi Bansal were taken besides his admitted signature (A2i), A3 to A17) for expert opinion on questioned signature/writings Q­ 17­Q­18, Q­76­Q105, Q109, Q113­Q133, Q­133A, Q­134 to Q­206, Q­ 206A, Q­207 to Q­239, Q­273A, which has been opined in report (ExPW11/A40 with analysis/reasons ExPW11/41) that the questioned signatures/ writings were of the same person, who wrote specimen and admitted signature. The analysis of writing in ExPW11/A41 could not be assailed by the accused by other evidence nor any contrary view could be culled out from cross examination of PW11. Accordingly, these aspects will be considered while appreciating the evidence and contentions of both sides.

8.4 It is abundantly clear that the case of prosecution rests upon four kind of major transactions, firstly in respect of opening of account by accused Kuldeep Kumar Agarwal and availing OCC/OD facility which was upto Rs.24 lakhs from Canara Bank, Pahar Ganj Branch, New Delhi and in those facility various transactions took place, secondly in respect of application for and sanction of loan to accused Kuldeep Kumar Agarwal for buying Qualis vehicle bearing registration no. HR 38 GT 6145 from M/s Toyota MGF/M/s Capital Vehicles Sales Pvt. Ltd., Mrs. Anu Bansal stood surety for Kuldeep Kumar Agarwal in this regard, thirdly applying and having loan for buying of second hand Tata Truck bearing registration no. DL1GB 2423 from M/s Jai Ambey Roadline by accused Kuldeep Kumar Agarwal and lastly buying of another new vehicle bearing registration no. DL1VA 2769 (CNG Mahindra Bus) by Devender Kumar from M/s Skyline Automobiles. There are also allegation against Gopal Prasad that he has exceeded his jurisdiction in favour of other accused while granting OCC facility or sanctioning the [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 45 of 129] loan in violation of banking norms and also to settle his children by/through Kuldeep Kumar Agarwal as a consideration by opening colour laboratory as well as business of tour and travels. There was conspiracy from the inception among the accused persons and such deeds were pursuant to that plan. The fifth point is raised on behalf of accused Gopal Prasad on the point of validity of sanction to prosecute. Therefore, in order to maintain clarity of transactions and for sake of brevity for appropriate discussion & findings, it will be developed from these points.

9. (Ingredients of relevant sections of law) ­ Before proceeding further, it is also appropriate stage to mention necessary ingredients of the relevant provisions of law, which will also be test for facts in issue.

Essential Ingredients­ Sec 13(1)(d) of Prevention of Corruption Act 1988­ Criminal misconduct by a public servant­ Section 13(1)(d)(i) if Public Servant by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage;

or Section 13(1)(d)(ii) if Public Servant by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;

or Section 13(1)(d)(iii) if Public Servant while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage, without any public interest. [N.B (1) All the three clauses are independent and distinctive to constitute ingredients of offence u/s 13(1)(d), [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 46 of 129] (2)the acts (I) or (ii) above need not be in discharge of his duties.] Section 120A IPC [criminal conspiracy] ­ (1) there should be an agreement between the persons (who are alleged to conspire), and (2) the agreement should be­

(a) for doing of an illegal act, or

(b) for doing by illegal means an act which may not itself be illegal.

(3) some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

For the proof of criminal conspirancy­ The essence of criminal conspiracy is an agreement to do an illegal act such an agreement can be proved by direct evidence or by circumstantial evidence or by both. The direct evidence to prove conspiracy is rarely available. Therefore, circumstances proved before, during and after the occurrence have to be considered to decide on the complicity of accused.

Section 415 IPC (definition of cheating)­ (1) deception caused by accused to generate inducement in the mind of complainant/a person (2) (a) fraudulently or dishonestly inducing complainant/ that person­

(i) to deliver any property to any person or

(ii) to consent that any person shall retain property. Or

(b) intentionally inducing complainant/that person to do or omit to do anything which he would not do or omit if he were so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 47 of 129] Section 420 IPC (cheating and dishonestly inducing delivery of property)­ (1) the person deceived delivered to some one or consented that some person shall retain certain property, (2) the person deceived by induced by the accused to do, as above, (3) such person acted upon such inducement in consequence of his been deceived by the accused.

(4) that accused acted fraudulently or dishonestly when so inducing that person.

(5) the accused acted fraudulently or dishonestly when so inducing that person OR (1) the person deceived by induced by the accused to do, (2) such person acted upon such inducement in consequence of his been deceived by the accused.

(3) the accused so induced that person intentionally (4) that person dishonestly induces the person deceived to deliver any property to any person or to make, alter or destroy the whole or any part of valuable security, or anything which is signed or sealed, and which is capable of being converted into valuable security.

Section 463 (defining forgery) r/w Section 464 IPC ( making of false document) (1) the making of a false document or false electronic record or part of it and (2) the making should be with intend to­

(a) cause damage or injury to (i) the public, or (ii) any person or

(b) support any claim or title

(c) cause any person to part with property

(d) enter into any express or implied contract

(e) commit fraud or that fraud may be committed.

Section 467 IPC (forgery of valuable security, will etc.) [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 48 of 129] (1) that the accused commit forgery (2) that the forgery is (one of)­ i.e. a document purports to be a valuable security or a will, or an authority to adopt a son or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security or any document purporting to be an acquaintance or receipt for the delivery of any movable property or valuable security.

Section 30 IPC ­"Valuable security"­ The words "valuable security"

denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right.

Section 468 IPC(forgery for purposes of cheating)­

(i) that the document is a forgery,

(ii) the accused forged the document

(iii) he did, as above, intending that the forged document would be used for the purposes cheating.

Section 471 IPC (using as genuine a forged document or electronic record)

(i) fraudulent or dishonest use of a document or electronic record as genuine.

(ii) knowledge or reasonable belief on the part of the person using the document or electronic record that it is a forged one.

or

(i) that the document or electronic record was a forged document.

(ii) the accused used such document.

(iii) he used it as a genuine.

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 49 of 129]

(iv) that he knew or had reason to believe, that it was a forged.

10.1 (Issue of Sanction to prosecute) ­Since, a legal issue has been raised on the point of (validity of) sanction order to prosecute public servant Gopal Prasad, it is a material question, therefore, it needs to be decided firstly.

Initially, Ld. Public Prosecutor gave a reference of statement of PW­1 that he/PW1 has proved the sanction order (Ex.PW­1/A), which is a detailed order in itself, that he had taken cognizance of all the circumstances and then sanction was granted to prosecute public servant Gopal Prasad.

10.2 Whereas Sh. Hari Pillai, Advocate for Gopal Prasad has reservations, on the same set of circumstances that the sanction order (Ex.PW­1/A), as appearing on its face, is a detailed order but it is an invalid order, which is emerging from the record itself. The sanctioning authority shall be provided with complete record by the IO so that it may apply its mind and whatever record is considered by the sanctioning authority, it should have been reflected in the sanction order besides that an independent application of mind, while making its decision. The available record, which is in favour the accused should also be placed before the Sanctioning Authority, for making fair and unbiased decision on the point of sanction, whereas IO with­held that available record (Mark­PW20/DB/colly.), consisting documentary record of reply, correspondence, notices to debtor, timely information to Regional Office, to seal the godown, to initiate legal action for recovery of loan etc.), which is entirely tilting words the accused Gopal Prasad. In the [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 50 of 129] departmental inquiry, nothing resulted to infer criminal misconduct but case of irregularities and ultimately he was allowed all terminal benefits in his writ petition (Mark PW20/D­C) while holding of punishment of lower grade (from MMG Scale­III to MMG Scale­II, which was initial recommendation dated 28.10.2004 by Disciplinary Authority).

Whereas, in the present case the contents of sanction order are contrary to the actual position. The sanctioning authority writes in sanction order that it had seen and examined carefully the material and documents, statement of witnesses recorded by Investigating Officer, which were produced before the sanctioning authority/PW­1 Sh. K. Suresh Rao, General Manager and he considered the circumstances of case against Gopal Prasad and then sanction was given. PW­1 was examined in detail before the court and he was also cross examined on material aspect, the factual position emerged is that record produced before PW­1 was S.P.'s Report (Ex. PW­1/D­4, 27 sheets/pages 1­53), draft sanction alongwith calendar of names of witnesses & documents (Ex. PW­1/D­5, 11 sheets/pages 1­21) and covering letter dated 18.2.2005 (Ex.PW­1/D­6, one sheet/pages 1­2), which are just 39 sheets and sanction was granted on 24.2.2005. It is very much clear by reading the statement of PW­1 that neither statement u/s 161 Cr.P.C of the witnesses nor the documentary record collected was produced before PW­1 for consideration and to apply his independent mind judiciously vis a vis the record produced was S.P.'s Report named as calendar of names of documents and names of witnesses, they cannot be construed either the statement of witnesses or the documents for taking an independent decision. Actually, there is voluminous record of [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 51 of 129] documents and statement of witnesses, it needs time to go through. but the circumstances are speaking themselves that just those 39 sheets sent on 18.2.2005 may have been read and sanction was accorded on 24.2.2005, there is no application of mind or independent mind vis a vis the record of Gopal Prasad (Mark­20/DB) was not produced nor considered by PW1. Moreover, draft sanction (Ex.PW­1/D­5) is replica of sanction order (Ex.PW­1/A) except one paragraph of draft. In the draft sanction, it is also mentioned that the sanctioning authority has applied its mind. No documentary record or statement of witnesses were forwarded for assessment. It also constraints, in the letter, for the sanctioning authority that the calendar forwarded shall be kept confidential and it shall not be conveyed to anyone else vis a vis if any changes are to be carried, then IO will be consulted. Therefore, the requirement of law with regard to sanction laid down in codified law or interpreted in judicial pronouncements have not been fulfilled, it is an invalid sanction, it cannot be acted upon and in fact the sanctioning authority has not taken any independent opinion nor it applied its judicious mind nor it was possible for want of relevant material before it to be assessed by it. Ld. Counsel fortifies his contentions by deriving reasons from the following precedent­

(i) Central Bureau of Investigation Vs. Ashok Kumar Agarwal (2014) 14 SCC 295, dod 22.11.2013)(relevant paragraph 16, 20, 22, 23, 28, 44 and 59)­in this case charge­sheet was filed by CBI, the Special Judge took cognizance of offence, however, the respondent filed application to challenge the validity of sanction u/s 19 of the Act 1988. The Special Judge, New Delhi that it was not appropriate stage to decide the whether he sanction is in valid.

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 52 of 129] However, the respondent filed revision petition before Hon'ble High Court of Delhi to decide the question of failure of justice in according sanction and to examine the sanctioning authority, as a pre­charge stage, if it deems fit. Then CBI filed the appeal against that order. It was held (in para 59) that the stage of examining the validity of sanction is during the trial and we do not propose to say that the validity should be examined during the stage of inquiry or at pre­trial stage. In addition, the procedure for sanction was also laid.

16 The legal propositions can be summarised as under:

16.1 The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge­sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.

16.2 The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.

16.3 The power to grant sanction is to be exercised strictly keeping mind the public interest and the protection available to the accused against whom the sanction is sought.

16.4 The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material. 16.5 In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 53 of 129] had applied its mind on the same and that the sanction had been granted in accordance with law.

20. Be that as it may, in State of T.N. V. M.M. Rajendran this Court dealt with a case under the provisions of the 1988 Act, wherein the prosecuting agency had submitted a very detailed report before the sanctioning authority and on consideration of the same, the competent authority had accorded the sanction. This Court found that though the report was detailed one, however, such report could not be held to be the complete records required to be considered for sanction on application of mind to the relevant material on record and thereby quashed the sanction.

22. Para 22.16 of the CBI Manual reads as under:

"22.16 On completion of investigation in a case covered in Items 22.15.1 and 22.15.2, even CBI shall send its report to the administrative authority along with relevant statement of witnesses recorded during investigation and the documents. The judgment of the Supreme Court in State of T.N. V. M.M. Rajedran and Circular No. 21/33/98­PD dated 6­5­1999 issued by the Policy Division are also referred to in this regard."

23. A three­Judge Bench of this Court in Vineet Narain Vs. Union of India to prevent the erosion of the rule of law, issued a large number of directions to various authorities. Relevant part of the directions issued to CBI reads:(SCCp. 270, para 58) "58.(I)(12) The CBI Manual based on statutory provisions of Cr.P.C provides essential guidelines for the CBI's functioning. It is imperative that CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned."

28. The High Court in the impugned judgment and order has taken a prima facie view that:

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 54 of 129] 28.1. CBI had not sent the complete record to the sanctioning authority.

28.2. The order dated 11­7­2007 passed by the Special Judge made it evident that the learned counsel appearing on behalf of CBI had conceded before the court that only SP's report alongwith list of evidence (oral) and list of evidence (documentary) were sent to the sanctioning authority for the purpose of according sanction. 28.3 The statement of witnesses and other relevant documents were not sent to the sanctioning authority as per the own case of CBI.

28.4 The observation in the sanction order dated 26­11­2002 that "the case diaries and documents collected by the investigating officers during the course of investigation, statements of witnesses under Section 161 Cr.P.C and under Section 164 Cr.P.C were considered by the sanctioning authority" is factually incorrect. 28.5. The aforesaid facts make it clear that the sanctioning authority had not considered the entire material available with the investigating agency.

44. The covering letter of the draft sanction dated 24­5­2007 does not make it clear as to what had been sent to the sanctioning authority. It reveals that along with the draft sanction order, a list of witnesses and list of documents had been sent. The relevant part thereof reads as under:

"The SP's report sent herewith may please be treated as a secret document and no reference to it may be made in the sanction order when issued. In case the Ministry/Department, due to some reasons wants to depart from the material placed on record for issuing sanction, the matter may please be discussed with the undersigned so that the sanction for prosecution so accorded is not found wanting legally.

Since the relied upon documents are very large in quantity, they are not being enclosed. The investigating officer of this case Sh.

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 55 of 129] V.K. Pandey, will show the documents and also explain the evidence as and when required. Further list of witnesses and list of documents, will be provided, if necessary."

Thus, it is evident that even on the date the draft sanction was sent, the investigation was not complete.

59. Undoubtedly, the stage of examining the validity of sanction is during the trial and we do not propose to say that the validity should be examined during the stage of inquiry or at pre­trial stage.

(ii) Ashok Kumar Agarwal Vs. CBI & Ors. 2016 (154) DRJ 489 dod 13.1.2016 (relevant paragraphs 68, 69, 70, 71,73,74) ­The petitioner filed writ petition and revision petitions, wherein he assailed orders of sanction of competent authority, orders on point of charge of Special Judge in the charge­sheet filed by CBI. The Hon'ble High Court of Delhi discussed the issues on point of valid sanction with precedent, including paragraph 16 of case of Central Bureau of Investigation Vs. Ashok Kumar Agarwal (2014) 14 SCC 295, in paragraph no.62 of the judgment.

68. In the case of State of Maharashtra Vs Mahesh G. Jain, reported (2013) 8 SCC 119, the Supreme Court relied on the decision of Mohd. Iqbal Ahmed (Supra) and held as follows :

14.1 It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.

14.2 The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution..."

69. Considering the conspectus of decisions above­referred the following propositions can be culled out:

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 56 of 129]

a) Grant of sanction is a sacrosanct act and is intended to provide safeguard to a public servant against frivolous and vexatious litigation.

b) The sanctioning authority after being apprised of all the facts, must be of an opinion that prima­facie a case is made out against the public servant.

c) Thus, for a valid sanction the sanctioning authority must be apprised of all the relevant material and relevant facts in relation to the commission of the offence.

d) This application of mind by the sanctioning authority is a sine qua non for a valid sanction.

e) The ratio of the sanction order must speak for itself and should enunciate that the sanctioning authority has gone through the entire record of the investigation. Thus, the sanction order must expressly show that the sanctioning authority has perused the material placed before it, and after considering the circumstances in the case against the public servant, has granted sanction.

f) If the application of mind by sanctioning authority is not apparent from the sanction order itself then the burden of proving that the entire relevant record was placed before the sanctioning authority rests on the prosecution. The prosecution must establish and satisfy the court by leading evidence that the entire record of investigation was placed before the sanctioning authority.

70. In the present case, the respondents have despairingly failed to discharge the onus of proving that the sanction order dated 21.06.2002 is valid and that all the relevant documents were sent to the sanctioning authority for its perusal. None of the documents that go to demonstrate the innocence of the petitioner viz. the reply to the LR dated 27.06.2001 and the relevant Fax dated 13.01.1998 were shown to have been available to the sanctioning authority. These documents clearly and unequivocally establish that the Fax in question was in fact sent by the Swiss Bank Corporation, however, it is purported to have reached Mr. Barjatya by mistake. Resultantly, the Fax in question was a genuine one, and was not forged or fabricated as alleged by the prosecution.

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 57 of 129]

71. The sanction order dated 21.06.2002 is a verbatim copy of the draft sanction order sent along with the SP's report on 30.10.2001 and illustrates non­application of mind by the sanctioning authority. I have gone through and compared the draft sanction order and the sanction order dated 21.06.2002 and it clearly appears that the sanctioning authority has given its imprimatur to the draft sanction order without applying its mind to the relevant material. The sanction order dated 21.06.2002 as well as the SP's report dated 30.10.2001 do not allude to the reply to LR dated 27.06.2001, or the relevant Fax dated 13.01.1998 sent by the Swiss Bank Corporation to Mr. Barjatya. Thus, the sanction order itself does not reflect that the afore­stated relevant documents were examined by the sanctioning authority before granting sanction for prosecution. The sanctioning authority who, purportedly went through the above­mentioned documents, as per the noting of the then Hon'ble Finance Minister, is not even the sanctioning authority that signed the sanction order dated 21.06.2002.

73. Therefore, in view of the foregoing discussion, Issue No. (ii) raised in Writ Petition (Criminal) No. 1401/2002, is answered in the affirmative and it is held that the sanction order dated 21.06.2002 is invalid.

74. The only issue raised is Criminal Revision Petition No. 338/2014 is whether the sanction order dated 26.11.2002 is invalid on account of the circumstance of failure to place the relevant documents on record as well as on account of non­application of mind by the sanctioning authority while granting the subject sanction.

(iii) State of T.N. Vs. M.M. Rajendran 1998 9 SCC 186 dod 5,2,1997­ The respondent was held guilty u/ss 7 & 13(2) of the Act, 1988 by IIIrd Additional Sessions Judge, Madras, he filed an appeal before High Court, he had raised issue of valid sanction before proceeding in the matter, it was also dismissed. Held, that the High Court has also come to the finding that although the [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 58 of 129] Personal Assistant to the City Commissioner of Police, Madras has deposed in the case to substantiate that proper sanction was accorded by the City Commissioner of Police, the witness has also stated that the report even though a detailed one was placed before the Commissioner by him on consideration of which the Commissioner of Police had accorded the sanction, it appears to us that from such deposition, it cannot be held conclusively that all the relevant materials including the statements recorded by the Investigating Officer had been placed before the Commissioner of Police. It appears that the Commissioner of Police had occasion to consider a report of the Vigilance Department. Even if such report is a detailed one, such report cannot be held to be the complete records required to be considered for sanction on application of mind to the relevant materials on records. Therefore, it cannot be held that the view taken by the High Court that there was no proper sanction in the instant case is without any basis. It, however, appears to us that if the sanction had not been accorded for which the criminal case could have been initiated against the respondent, there was no occasion either for the trial court or for the appeal could to consider the prosecution case on merits. Therefore, the High Court need not to have made the findings on merits about the prosecution case. We make it clear that findings made by the courts on merit of case will stand expunged and will not be taken into consideration in future.

(iv) Nanjappa Vs State of Karnataka 2015 (14) SCC 186 dod 24.7.2015 (relevant paragraphs 19, 20, 21 and 24)­ The charge­ sheet was filed against appellant of allegation of bribe, he was acquitted by the trial court by holding that prosecution failed to prove the charge, however, in appeal by State, the High Court converted the acquittal into conviction u/s 7 & 13 r/w 13(2) of the Act 1988, by holding that issue of valid sanction was not raised at appropriate stage, he was also awarded sentence and fine. The appellant came in appeal against his conviction, he also raised issue of sanction. Held­ [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 59 of 129]

19. The legal position was reiterated once more by this court in State of Karnataka v. C. Nagarajswamy, wherein this Court summed up the law in the following words:

"25. In view of the aforementioned authoritative pronouncements, it is not possible to agree with the decision of the High Court that the trial court was bound to record either a judgment of conviction or acquittal, even after holding that the sanction was not valid. We have noticed hereinbefore that even if a judgment of conviction or acquittal was recorded, the same would not make any distinction for the purpose of invoking the provisions of Section 300 CrPC, 1973 as, even then, it would be held to have been rendered illegally and without jurisdiction."

20. What is important is that, not only was the grant of valid sanction held to be essential for taking cognizance by the court, but the question about the validity of any such order, according to this Court, could be raised at the stage of final arguments after the trial or even at the appellate stage. This Court observed : (C. Nagarajaswamy case, SCC p. 375, paras 14­16) ­ "14. Ordinarily, the question as to whether a proper sanction has been accorded for prosecution of the accused persons or not is a matter which should be dealt with at the stage of taking cognizance. But in a case of this nature where a question is raised as to whether the authority granting the sanction was competent therefor or not, at the stage of final arguments after trial, the same may have to be considered having regard to the terms and conditions of service of the accused for the purpose of determination as to who could remove him from service.

15. Grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. It is desirable that the question as regard sanction may be determined at an early stage..

16. But, even if a cognizance of the offence is taken erroneously and the same comes to the court's notice at a later stage a finding [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 60 of 129] to that effect is permissible. Even such a plea can be taken for the first time before an appellate court."

21. In B. Saha v. M.S. Kochar [1979 4 SCC 177] this Court was dealing with the need for a sanction under Section 197 CrPC and the stage at which the question regarding its validity could be raised. This Court held that the question of validity of an order of sanction under Section 197 CrPC could be raised and considered at any stage of proceedings. Reference may also be made to the decision of this Court in K. Kalimuthu V. State where Pasayat, J. speaking for the Court, held that the question touching the need for a valid sanction under Section 197 CrPC need not be raised as soon as the complaint is lodged but can be agitated at any stage of the proceedings. The following observation in this connection is apposite: (SCC p. 521, para 15) "15. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any state of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. Further, in cases where offences under the Act are concerned, the effect of Section 197, dealing with the question of prejudice has also to be noted."

24. In the case at hand, the Special Court not only entertained the contention urged on behalf of the accused about the invalidity of the order of sanction but found that the authority issuing the said order was incompetent to grant sanction. The trial court held that the authority who had issued the sanction was not competent to do so, a fact which has not been disputed before the High Court or before us. The only error which the trial court, in our opinion, committed was that, having held the sanction to be invalid, it should have discharged the accused rather than recording an order of acquittal on the merit of the case. As observed by this Court in Baij Nath Prasad Tripathi case [AIR 1957 SC 494], the absence of a sanction order implied that the court was not competent to take cognizance or try the accused. Resultantly, the [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 61 of 129] trial by an incompetent court was bound to be invalid and non est in law.

(v) Mansukhlal Vithaldas Chauhan Vs. State of Gujarat 1997(7) SCC 622 dod 3.9.1997 (relevant paragraphs 17, 18 and 19)­ The appellant was Divisional Accountant, he was prosecuted for offence u/s 5(2) of the Prevention of Corruption Act 1947 & u/s 161 IPC, he was held guilty by the trial court and he was awarded substantial punishment and fine. The conviction was upheld by the High Court. He came in appeal and issue of valid sanction was raised. It was discussed & held­

17. Sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions. (See Mohd. Iqbal Ahmed V. State of A.P. AIR 1979 SC 677) Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty.

18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that the relevant facts were considered by the sanctioning authority. (See also Jaswant Singh v. State of Punjab AIR 1956 SC 124 and State of Bihar v. P.P. Sharma 1991 CrLJ 1438 )

19. Since the validity of "sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 62 of 129] sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reasons whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.

(vi) State of Karnataka Vs. Ameerjan 2007 (11) SCC 273 dod 18.9.2007 (relevant paragraphs 9 and 19)­ The respondent was working as Second Division Assistant in the office of Registrar of Firms and Cooperative Societies, he had demanded Rs.300/­ as bribe for issuing the certificate, he was charge­sheet. There was order of sanction by Commissioner of Stamps based on report of Inspector General of Police (IG). Sanctioning Authority was examined before the trial court, however, that report of IG was neither brought on record nor produced. The trial court considering the material produced held the appellant guilty but in appeal the High Court reversed the findings of trial court that conviction does not sustain. State came in appeal. Issue of valid sanction is there, it was discussed/held it is sanctioning authority to form an opinion by application of mind on point of sanction­

9. We agree that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not.

19. In this case, the High Court called for the original records. It had gone there­into. It was found that except the report, no other record was made available before the sanctioning authority. The [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 63 of 129] order of sanction also stated so. PW­8 also did not have the occasion to consider the records except the purported report.

(vii) V. Venkata Subbarao Vs. State 2006(13) SCC 305 dod 12.12.2006 (relevant paragraph 23)­ It was held that for application of mind by Sanctioning Authority to consider for sanction, there should be entire material before it.

23. It is also accepted that before the sanctioning authority, the vital documents showing involvement of the MRO had not been produced. The sanctioning authority, therefore, did not have any occasion to apply their mind to the entire material on record and in that view of the matter, the sanction is, therefore, vitiated in law. Conduct of the officers of the respondent who had taken recourse to suppressio veri deserves serious condemnation.

It is concluded that for want of compliance of law, precedents and clear provisions of CBI manual, also referred in precedent, the sanction is invalid and accused Gopal Prasad deserves acquittal on this sole legal issue. There is also no sanction u/s 197 Cr.P.C.

10.3 Now Ld. Public Prosecutor requests that contentions on behalf of Gopal Prasad are not tenable, since he was an accused in another case CC No. 23/2012 CBI Vs. Ravi Bansal & others, the issue of sanction was also considered and Ld. Predecessor by judgment dated 28.1.19 has held that sanctioning authority/PW1­ K.Suresh Rao, General Manager, Canara Bank had perused the material put up before him, which was considered as well as the other circumstances and then sanction was given vis a vis [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 64 of 129] sanction order dated 24.2.2005 running into five pages was held a valid sanction to prosecute. In addition, it was also held, on the basis of law laid down in CS Krishnamurthy Vs. State of Karnataka 2004(4) SCC 81 that in case a draft sanction order is sent to the sanctioning authority, then also if there is material on record to show that sanctioning authority had applied its mind to the material sent to it then, the sanction order is valid. The present court may also take judicial notice of it. Since that contention was decided and consequently there is no scope left on behalf of accused Gopal Prasad to re­agitate the same in the present case nor there is any exception to it.

10.4 Ld. Counsel Sh. Hari Pillai, Advocate makes counter submission that first of all the ratio of case of CS Krishnamurthy (supra) was on the point of draft sanction that it may be sent to the sanctioning authority, however, the situation in the present case is not just confining to sending of draft sanction but there are other more circumstances of want of sending of statement of witnesses and documents for consideration of sanctioning authority, besides want of sending record Mark PW­20/DB (Colly.), which was the reply of Gopal Prasad, which he had given explanation of all the circumstances with record, timely information & approvals or actions against defaulters, that record goes in favour of accused, it was also required to be put up before the sanctioning authority so that a fair decision could be taken by considering all the record.

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 65 of 129] The Investigating Officer was admittedly in possession of this record even at the time of bail application was being heard or at initial stage and there was no reason for the IO to withheld the same. Lastly, an appeal has been filed against the judgment dated 28.1.2019 [of CC No. 23/12 CBI Vs Ravi Bansal & 3 others] and it is pending adjudication before Hon'ble High Court of Delhi, there is no bar to raise all these legal issue on the point of invalid sanction and in fact in case no. 23/12, (which is, in the record of that judgment itself) that accused had taken the plea of sanction order Ex. PW­1/A is invalid, which is common for the three cases, out of them two have been decided by Ld. Predecessor and in another case Gopal Prasad was acquitted [ on 7.12.2018 of CC No. 25/12 CBI Vs Ravi Bansal & Gopal Prasad]. Since appeal is pending (in CC no.23/12), therefore, there is no finality on the point of sanction order (ExPW1/A), the prosecution has to establish validity of sanction order in each case and findings of ld Predecessor cannot be construed as binding on the present court, particularly in view of law declared in the precedents, which is binding as law. The concept like res­judicata (in civil law) does not apply on legal issues in criminal law, otherwise there is no finality to the issue as yet. The sanction order stand proved as invalid sanction order.

11.1 (Findings with reasons on point of 'sanction to prosecute accused A3 Gopal Prasad')­ In view of rival contentions referred [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 66 of 129] above, now it is not left just plain question on point of sanction to prosecute since Ld. Public Prosecutor for State has raised a counter issue that because Ld. Predecessor has determined this issue in other case and it cannot be agitated by the accused in this case. The answer to this counter question is to be decided first, then it will determine, whether or not point of sanction is to be considered by this court.

It is not disputed that an appeal is pending before Hon'ble High Court of Delhi in respect of other case decided by ld. Predecessor, therefore, the issue on point of sanction has not attained its finality. Secondly, in civil law, appeal is treated as continuation of suit (reliance is placed on Lakshmi Narain Guin Vs Niranjan Madhok AIR 1985 SC 111 & Hasmat Rai Vs Raghunath Prasad AIR 1981 SC 1711) and in appeal the appellate court also appraisal the evidence, same analogy can be applied for situation in hand being criminal trial case. Thirdly, question of the validity of sanction was also raised in other case, it is pending in appeal, thus there is no finality as yet. Fourthly, the issue of sanction has also been raised in this case vis a vis Prosecution has also produced and got examined PW1 in this case for proof of sanction. Therefore, this court in the present case has to consider the material/evidence in this file. Accordingly, the present court can decide the issue on point of sanction in this case, irrespective of fact that Ld. Predecessor had dealt issue of sanction in other [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 67 of 129] cases [paragraphs 178­197 of case CC no.23/1 CBI Vs Ravi Bansal & others and paragraphs 112­131 CC no.25/1 CBI Vs Ravi Bansal & Gopal Prasad]. Gopal Prasad's appeal (in CC no. 23/12) is still pending before Hon'ble High Court of Delhi. Thus, with this preliminary findings, merits of sanction order to prosecute (ExPW1/A) is to be considered.

11.2 This court has material/record/evidence available on judicial file to decide this issue. The record is (i) statement of PW1 Shri K. Suresh Rao, sanctioning/disciplinary authority, (ii) covering letter dated 18.2.2005 ExPW1/D6 written by DIG A K Malhotra on behalf of PW29/IO Sh. P.K. Khanna, (iii) SP's report with its annexes of calendar of list of names of witnesses & names of documents to be proved (iv) draft sanction order. It is appropriate and feasible also to reproduce the text of covering letter Ex PW1/D6 for appreciation of contentions of both the side­ text of letter Ex. PW­1/D6 "[8 floor, Lok Nayak Bhawan, th Khan Market, New Delhi, Dated: 18­2­05 To Shri Anil D. Prabhu, GM & C.V.O, Vigilance Deptt., Spencer Towers, 86 M.G. Road, Bangalore­1.

Sub: CBI Case No. RC­8(E)/2003/EOW­I/DLI dtd 30.06­2003 against Sh. Ravi Bansal Prop. M/s Varun Finance Corpn & Others.

Sir, Please find enclosed herewith SP's Report duly signed by Supdt. of Police, EOW­I, New Delhi containing facts of the case and the result of investigation.

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 68 of 129]

2. This case was registered on the basis of a written complaint from Sh. Y.L. Madan, the then Deputy General Manager, Canara Bank, Circle Office, New Delhi vide letter No. DCL/F­598/1424/2003 dtd 28.6.2003 alleging that a fraud has been committed in Canara Bank, Paharganj Branch, New Delhi by Ravi Bansal Prop M/s Varun Finance Corporation, New Delhi & others causing loss to the extent of Rs.156.56 lakhs to the bank during 2002­2003.

3. The SP's Report will show that there is sufficient material available to prosecute S/Sh. Ravi Bansal (A1), Smt. Vijay Laxmi Bansal (A2), Kuldeep Kumar Agarwal(A3), Smt Anu Bansaln (A­7) (private persons) and Gopal Prasad(A4) (Public Servant) U/s 120­B r/w Sec.420, 467, 468, 471 IPC and Sec. 13(2) r/w Sec. 13(1)(d) of PC Act 1988 and substantive offences thereof.

4. Since Gopal Prasad (A4) is a Public Servant and still in service, sanction order to prosecute him is required U/s 19 of PC Act 1988. Draft sanction order in respect of Gopal Prasad (A4) is enclosed. Copies of his statement and statements of other accused persons, calendar of evidence (Oral & Documentary) are also enclosed for taking necessary action at your end.

5.(.....this is illegible , that is why it could not be reproduced)

6. The SP's Report also shows that there are certain lapses/negligence/misconduct on the part of Sh. M.V. Ramna Rao (A­5) and Sh. B.V. Naik (A­6) which are incorporated in the SP's Report for initiating Suitable Action against them.

7. The SP's Report may please be treated as a confidential document and no reference of it may please be made in any type of communication/correspondence addressed to the accused persons or outside agency.

8. The services of the IO Sh. P.K. Khanna, DSP, CBI, EOW­I, New Delhi will be available for any assistance.

This matter may be accorded Top Priority.

                                                                        Yours faithfully
Encl: SP's Report alongwith
        enclosures i.e. Calendar of
        Evidence (oral & Documentary),                             sd/­ (A.K. Malhotra)
        Draft sanction order and                                DIG/EOW/Delhi Region
      statement of accused persons                                  New Delhi.

Endst. No. 8/(E)/2003/EOW­I/DLI/                   Dated:
Copy forwarded to:­
1.     The Secretary, Central Vigilance Commission, INA, Satarkata                 Bhawan,
New Delhi for favour of information.

2. JD/EOW­III, CBI, New Delhi for favour of kind information.

(A.K. Malhotra) DIG/EOW/Delhi Region, New Delhi"

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 69 of 129] 11.3.1 The test of law for sanction is u/s 19 of the Prevention of Corruption Act 1988, u/s 197 of the Code of Criminal Procedure 1973, detailed instructions & guidelines laid down in precedent State of Tamil Nadu Vs MM Rajendran (supra), CBI Vs Ashok Kumar Agarwal 2014 14 SCC 295 (its paragraph 16, particularly), other precedents & case law. By apply them to the facts & evidence on this case, it is held that sanction order dated 24.2.2005 (Ex.PW1/A) to prosecute Gopal Prasad is invalid as it does not qualify the requirements of law, for the following reasons:­ (A1) PW1 mentions in sanction order dated 24.2.2005 that after carefully examining the material and on perusal of documents and statement of witnesses recorded by IO and placed before him in regard to the allegations and circumstances of the case, he accorded sanction (ExPW1/A). He also narrates in his examination in chief about such record, however, during cross examination, he was confronted with record of SP's Report (Ex PW1/D4), draft sanction (ExPW1/D5) and Calendar/list of names of witnesses & of documents, covering letter (Ex PW1/D6) and PW1 confirmed only that record was received and examined by him to accord the sanction.

(A2) The record of SP report, calendar of witnesses & documents, draft sanction is the only record sent with covering letter. It is 39 pages only. There is no proof of other record sent or proposed to be sent to sanctioning authority.

(A3) In view of above, as per examination in chief of PW1, he said he had seen statement of those witnesses, which IO records u/s 161 CrPC and documents before accord of sanction but during cross examination it stand established that actual record received [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 70 of 129] was not containing the statement of witnesses u/s 161 CrPC & documents or single statement of any witness or a document but it was just calendar of names of witnesses and list of files of documents, which were enclosure to covering letter. The calendar is not substitute of actual statement of witnesses and documents.

(B1) It stand proved that investigating agency had not provided to Sanctioning Authority the record of statement of witnesses or documents collected during investigation, recovery memos, disclosure statement of accused, draft charge­sheet for scrutiny by Sanctioning Authority. PW1 affirms receipt of annextures to SP Report , which are just the calendar of names of witnesses, it was construed as statement of witnesses by the sanctioning authority.

(B2) The calendar mentions names of 45 witnesses and 37 names of files/documents with opinion of SP what a witness will explain in the court or what could be established through those documents named in the calendar. There is narration by SP in third form for a person/witness (use of pronoun 'he') against the name of each witness, as to what will be explained by him in court and similarly about the documents to prove facts. This, itself is speaking volume that no actual record of statement of witnesses or documents collected was forwarded for perusal of sanctioning authority.

In addition, in the charge­sheet dated 28.2.2005 was filed within the same month, there is list of 41 files (as compared to 37 files mentioned in calendar) and number of witness cited are 29 (as compare to 45 mentioned in calendar). Moreover, in the SP report, there is also narration of statement/explanation of accused persons, it also names MV Ramana Rao (at page number 29, 40 & 51 as accused no. 5, not named in FIR and not arrested ) and BV Nayak (at page number 31, 41 & 51 as accused no. 6, not named in FIR and not arrested). Whereas, both are cited as prosecution witnesses in the list of witnesses in charge­sheet, they were also examined as witnesses in the court.

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 71 of 129] (B3) In fact the calendar is containing opinion/conclusions drawn by SP/IO in respect of witnesses or documents named therein and Sanctioning Authority was forwarded that calendar. Sanctioning Authority had only considered calendar record of that opinion/conclusions to make out its own decision for sanction; thus sanction order (ExPW1/A) [based on draft sanction (Ex PW1/D5) & calendar] is not emerging from original record of statement of witnesses & documents but from view containing in calendar. The sanctioning authority has considered only that record and none else.

(B4) The accused Gopal Prasad had given his reply/ representation with record Mark PW­20/DB(Colly.) to Disciplinary Authority, it was also available with IO/PW29, however, it was not presented to Sanctioning Authority nor it was perused by Sanctioning Authority of its own before approval of draft sanction.

(C1) When the actual/original record was not made available to Sanctioning Authority, how it could be able to apply its own mind? It was not possible.

(C2) The sanctioning authority was also to satisfy itself that there was existence of actual material (of documentary record & statement of witnesses recorded) and that material record was to be considered for coming to the conclusion, whether or not sanction is to be granted, whereas as per evidence including statement of PW1, the relevant record of statement of witnesses, documentary record collected/seized during investigation was not produced for its conscious analysis, thus sanction order (ExPW1/A) is not based on scrutiny of documents or actual statement of witnesses nor on independent decision/opinion.

(C3) PW1 admits, with surprise expressions, that SP report seeking sanction to prosecute A3 Gopal Prasad was received, a single sanction was accorded but in court he came to know that A3 was prosecuted in three cases. However, SP report was reflecting [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 72 of 129] names of MV Ramana Rao and BV Nayak in the category of accused persons out of 7 persons, however, PW1 could not explain in cross examination as well as 'such action' mentioned in the SP report, except that sanction was in respect of A3 Gopal Prasad.

(C4) It is also apparent from the statements of star witnesses, particularly PW1 that record other than Calendar & draft sanction was not before the sanctioning authority. It cannot be treated an omission since the letter sent and draft sanction were prepared as per allegations/facts of the case; by mentioning of statement of witnesses & documents in the draft shows that they were aware of requirement, however, in covering letter such documents were with­held instead calendar was sent. Thus, actual record was not sent knowingly.

Otherwise, there is no evidence of sending such record (of statements u/s 161 CrPC or of documentary record) or showing record to Sanctioning Authority nor PW1 says so, the statement of PW29/IO that he had sent entire record is not getting any support either from its own record or from statement of PW1 or other convincing material as to when and in what manner or whose instance the production of record was done, particularly when he himself had not written covering letter to Sanctioning Authority. (D1) The draft sanction (Ex.PW1/D5) is u/s 19 of the Prevention of Corruption Act, and sanctioned order (Ex PW1/A) is also u/s 19 of the Act 1988 and there is no sanction order u/s 197 of the Code, 1973, although in body of draft sanction various sections of IPC were mentioned alike in order (ExPW1/A). The case of prosecution also rests on allegations that accused A3 Gopal Prasad exceeded his powers/authority during discharge of official duties, obviously sanction u/s 197 CrPC was contemplated as offences of IPC are mentioned in the body of draft sanction (ExPW1/D5) as well as in sanction order (Ex PW1/A) but no sanction was requested u/s 197 CrPC (covering letter ExPW 1/D6) nor so obtained nor granted.

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 73 of 129] (D2) The draft sanction and sanction order are replica except one paragraph in respect of loan to Devender Kumar, which is not mentioned in draft sanction. However, it would not change the circumstances of non­compliance of or decencies of other requirements.

(D3) The precedents CBI Vs, Ashok Kumar Agarwal case (supra), State of Tamil Nadu Vs MM Rajendran (supra), Ashok Kumar Agzarwal Vs CBI case (supra) and other cases presented on behalf of accused Gopal Prasad applies to the situation in present case and there is no other precedent or case law presented on behalf of State to held the sanction order dated 24.2.2005 (ExPW1/A) as valid sanction.

Accordingly, the contention on this issue stand disposed off by holding that Sanction order dated 24.2.2005 (ExPW1/A) is invalid order.

11.3.2 Since, the sanction is held invalid and in terms of law laid down in precedent Najappa Vs State of Karnataka (supra), when sanction it not valid, the accused is to be discharged since it is related to core/stage of cognizance, accordingly the accused A3 Gopal Prasad is discharged in this case and no further findings are required be given on merits of case in respect of A3 Gopal Prasad. Moreover, this finding on sanction will not be construed any opinion on merits of other case(s) sub­judice in appeal. 11.4 Now question arises, what are consequences of discharge of Gopal Prasad, whether the decision should be with­ held in respect of other accused A1 Ravi Bansal and A2 Kuldeep [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 74 of 129] Kumar Agarwal?. The answer is in negative, since evidence for accused Kuldeep Kumar Agarwal and for Ravi Bansal will remain the same. However, in view of discharge of A3 Gopal Prasad, the appraisal of evidence is to be carried in such a manner without keeping in view the role of A3 Gopal Prasad in picture, since that evidence on record cannot be read for him (either against or in favour of A3 Gopal Prasad, since it is like non­est for him). Further, it is clarified that charges of u/s 120B IPC, u/s 120B r/w 420,467,468 IPC r/w sec 13(2) r/w 13(1)(d) of the Act 1988 cannot be opined by reading name of A3 Gopal Prasad in evidence but otherwise it is be seen what has or has not been proved against Accused A1 Ravi Bansal and A2 Kuldeep Kumar Agarwal. With this initial observation, the charges against A1 Ravi Bansal and A2 Kuldeep Kumar Agarwal are taken.

12.1 In view of the above, now allegation/charge pertaining to buying of Quails vehicle bearing registration no. HR 38GT 6145 by accused Kuldeep Kumar Agarwal from M/s Capital Vehicles Sales Ltd/MGF Toyota against loan by him from Canara Bank, Paharganj Branch, New Delhi and on guarantee of Dr. Anu Bansal.

12.2 Sh. Raj Kamal, Ld. Public Prosecutor for State submits that in a very calculated way accused Kuldeep Kumar Agarwal applied for loan of Rs.5.22 lakhs under Canmobile Loan Scheme with regard to the vehicle Qualis HR 38GT 6145 and to cheat the Bank for such a huge amount, for that purposes statement of witnesses [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 75 of 129] PW­23, PW­22, PW­5 are material besides the statement of PW­2 and PW­3. The Canara Bank, Paharganj Branch sanctioned the loan on the application of Kuldeep Kumar Agarwal but subsequently it was revealed that Kuldeep Kumar Agarwal's request for loan to other bank was already rejected as well as he had obtained loan from M/s Novelty Finance Ltd. for same vehicle, it was not permissible to obtain loan again when the said vehicle was already against the loan or under hypothecation. Witness PW5 Raj Kumar, Director of M/s Novelty Finance Ltd. deposed that a sum of Rs.2,65,000/­ was financed to Kuldeep Kumar Agarwal for Qualis, whereas accused Kuldeep Kumar Agarwal applied and took loan against hypotecation of said vehicle to Canara Bank. Moreover, the copy of registration certificate of Qualis HR 38GT 6145 (Mark­A4) furnished was discovered a forged certificate by forging 'as HPA to Canara Bank', the document was forged and this forged document was utilized by accused Kuldeep Kumar Agarwal to show that the vehicle was against hypothecation with the Canara Bank but when witnesses from Transport Authority (PW­22 Sh. Dharampal, Registration Clerk and PW­10 Ram Chand, Assistant Secretary RTO, Faridabad) were examined, the copy of registration certificate (Mark­A4) as furnished (that vehicle is under HPA to Canara Bank) is not in the official record of Regional Transport Office of said vehicle vis a vis PW­5 of M/s Novelty Finance Ltd also explained [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 76 of 129] that the Qualis vehicle HR 38 GT 6145 was financed by it to Kuldeep Kumar Agarwal and as per witness PW­10 Ram Chand there was no such official record that said vehicle was hypothecated in the name of Canara Bank as shown at Point­X on RC/Mark­ A4. It is submitted that under these circumstances not only the Bank has been cheated but also there was forgery and use of forged document/RC (Mark­A4) by accused Kuldeep Kumar Agarwal.

12.3 Ld. Counsel Sh. Amit Khanna, Advocate for Kuldeep Kumar Agarwal has reservations on the submission of State that material on record speaks otherwise and by analyzing the evidence, it will be abundantly clear that it is a case of bona­fide purchaser of Qualis vehicle by the accused Kuldeep Kumar Agarwal. First of all, the accused Kuldeep Kumar Agarwal applied for loan, as he had deposited amount of Rs.1,49,000/­, for which letter dated 25.2.2002 (Ex. PW­23/B) was issued and thereafter loan was sanctioned and the demand draft issued was not in favour of accused Kuldeep Kumar Agarwal but directly in favour of M/s Capital Vehicles Sales Pvt. Ltd./MGF Toyota, that demand draft was deposited with M/s Capital Vehicles Sales Pvt. Ltd. against receipt dated 26.2.2012 (Ex. PW­23/D) followed by sales invoice dated 26.2.2002 (Ex. PW­23/C) and in this way a transparent transaction was materialized. Where is cheating or manipulation? Otherwise, the application of accused Kuldeep Kumar Agarwal [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 77 of 129] was processed by Bank Officers and proforma invoice was considered, the advance/margin money paid was also confirmed to the Canara Bank and then only loan was sanctioned. It is a clear case of bona­fide purchaser and nothing more.

Where is the evidence that photocopy of Mark­A4 was forged by the accused Kuldeep Kumar Agarwal, he has not forged any document and there is no expert opinion applied and obtained by the Investigating Officer about the writing, if any, appearing on said Mark­A4. The allegations are bald. Accused Kuldeep Kumar Agarwal cannot be fastened with the criminal liability of forgery of document, which was not proved and vicarious liability is unknown phenomenon so far criminal law is concerned. It is an introduced document to falsely strength case against accused. So far, M/s Novelty Finance Ltd. is concerned, neither there is any complaint/grievances by them nor any kind of cheating is alleged by them against accused Kuldeep Kumar Agarwal nor any losses were suffered or caused to them, rather PW­5 confirms that the amount financed was returned by October 2003.

Although, another fact with regard to invoice of 19.10.2001 is appearing in the statement of a witness, however, the accused Kuldeep Kumar Agarwal's application for loan by other bank was not considered and he went to the Canara Bank, Paharganj Branch, since he was already maintaining account there; it cannot be construed cheating or forgery of record. PW26/General [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 78 of 129] Manager of M/s Capital Vehicles Sales Limited also confirms that he does not know what had actually happened qua transaction of sale of vehicle to Kuldeep Kumar Agarwal. Therefore, when there is no concrete evidence of any forgery or of preparing forged document nor there is any forged document proved and accused Kuldeep Kumar Agarwal obtained the loan on valid applications and documents, it does not prove any of the charges of conspiracy or cheating or forgery or use of forged document against him. The prosecution was required to prove such facts beyond reasonable doubt, but it failed.

12.4.1 (Findings with reasoning on transaction of Qualis/vehicle HR 38GT 6145)­ The rival contentions are considered and record is also assessed. The relevant witnesses, pertaining to this transaction, are PW­2, PW­3, PW­23, PW­26, PW­5, PW­10 and PW­22 and material documents are proforma invoice dated 25.2.2002 (Ex.PW­23/A) by M/s Capital Vehicles Sales Ltd.; certificate on letter head dated 25.2.2002 (Ex.PW­23/B) confirming advance receipt of Rs.1,49,000/­ issued by MGF Toyota/M/s Capital Vehicles Sales Pvt. Ltd.; letter dated 26.2.2002 by Canara Bank to M/s Capital Vehicle Sales Pvt. Ltd. (Ex.PW­20/C, while tendering demand draft in its favour and to hypotecate the vehicle in favour of Canara Bank), Sales Invoice dated 26.2.2002 (Ex. PW­23/C), formal receipt no. 3551 dated 26.2.2002 by M/s MGF [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 79 of 129] Toyota/ M/s Capital Vehicles Sale Pvt. Ltd. (PW­23/D, after receipt of amount by demand draft), photocopy of manually written 'Particulars of Registration (Mark­A4, bearing endorsement hire purchase agreement to Canara Bank, New Delhi), Kuldeep Kumar Agarwal's letter dated15.4.2002(Mark­20/D51 furnishing insurance cover to Canara Bank) besides other record (under seizure memo Ex. PW­26/A colly of documents seized from MGF Toyota/M/s Capital Vehicles Sales Ltd) consisting of proforma invoice dated 19.10.2001 (Mark­B, issued by M/s MGF Toyota/M/s Capital Vehicles Sale Pvt. Ltd., in respect of one Qualis with endorsement leased/hypothecated to Canara Bank), Sale Certificate/Invoice dated 19.10.2001 (Mark­C, issued by M/s MGF Toyota/M/s Capital Vehicles Sale Pvt. Ltd. in respect of vehicle/CBG Bus by reciting chassis number no. LF50­1043126 and engine no. DL 9711492, which are also mentioned in subsequent Sales Invoice dated 26.2.2002 Ex. PW­23/C).

12.4.2 In order to adjudicate this issue/allegations of this charge, it is to be split into three phases for effective appreciation of rival contention, the first phase is prior to 25.2.2002 (ie prior to date of proforma invoice Ex. PW­23/A was issued), second phase is of the period from 25.2.2002 till registration of vehicle under no. HR 38 GT 6145 (as in between not only the loan application was considered & sanctioned and disbursed but also the registration of [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 80 of 129] vehicle HR 38GT 6145 was carried) and third phase of period is subsequent thereto (inclusive of the period date of insurance of 11.3.2002 and 15.4.2002 when Kuldeep Kumar Agarwal had furnished copy of insurance of vehicle to Branch Manager, Canara Bank, Pahar Ganj Branch, Delhi).

In the second phase from 25.2.2002 onward, witnesses PW­ 2 and PW­3/ Bank officers of the Canara Bank dealt with the application for loan and after processing the same, other loan documents were got executed, which have already been detailed in paragraph no. 8.3B above. PW­23 Sh. Dinesh Panwar, Sales Manager confirms that proforma invoice dated 25.2.2002 (Ex.PW­ 23/A) was issued by an employee Shri Deepak Dutta, Executive; letter/certificate dated 25.2.2002 (Ex.PW­23/B) was issued by Deepak Kapila, Sales Manager but Sales Invoice dated 26.2.2002 (Ex.PW­23/C) was issued by PW­23 himself. The receipt of demand draft was acknowledged vide receipt no. 3551 dated 26.2.2002 (Ex.PW­23/D, under allotment no. KK 1210) by one of the cashiers of M/s MGF Toyota, Gurgaon. Witness PW­23 was not cross examined on any those counts. PW­26 is General Manager, M/s Capital Vehicles Sales Pvt. Ltd. and he also deposed about the documents tendered by witness PW­23, however, he/PW26 was not aware of certain procedure to be followed with regard to documentation being the subject dealt by concerned dealing Assistant vis a vis he was not remembering as [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 81 of 129] to what happened in the case of Kuldeep Kumar Agarwal in respect of vehicle bearing registration no. HR 38 GT 6145. PW­ 5/Raj Kumar is one of the Director of M/s Novelty Finance Ltd., he proved Form No.­34 (Ex.PW­5/A) by confirming that vehicle bearing no. HR GT 6145 was financed by M/s Novelty Finance Ltd. for a sum of Rs.2,65,000/­ to Kuldeep Kumar Agarwal on the guarantee of Mr. Balbir, however, Kuldeep Kumar Agarwal made entire payment by October, 2003. The other two star witnesses are PW­10 and PW­22. PW­10 Shri Ram Chand appeared to prove record of certificate of registration ExPW10/B, [which was seized by memo dated 17.9.2003 Ex. PW­10/A] that as per their record vehicle HR 38GT 6145 was registered as a tourist taxi and there was hire purchase agreement with M/s Novelty Finance Ltd. entered on 23.1.2003. The certificate of registration proved is Ex. PW­10/B by confirming that it bears signature of Registration Clerk PW22 Dharampal at Point­A,. Moreover, PW­10 was confronted with 'copy of particulars of registration Mark­A4', (which was furnished to Canara Bank, Paharganj Brach and document Mark­ A4 was given this number during the statement of official witnesses/Bank officers) and PW­10 confirms that photocopy Mark­A4 is not as per their official record produced nor it is bearing signature of officials/officers of Transport Authority. PW­22 is Dharampal, Registration Clerk and he deposed on the line of PW­ 10 with regard to record of certificate of registration of vehicle [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 82 of 129] bearing registration no. HR 38 GT 6145 as well as about another copy of particulars of registration Mark­A4 by opining that since Mark­A4 is not carrying particulars as per official record of vehicle HR 38 GT 6145, consequently the 'copy of particulars of registration Mark­A4' is forged document. Accused Kuldeep Kumar Agarwal explained in his statement u/s 313 CrPC that he had taken loan form Canara Bank and never from M/s Novelty Finance Limited or Standard Chartered Bank, however, he could not establish his such plea given in his statement. The record proved is contrary to this plea of accused.

12.4.3 With regard to application for loan by Kuldeep Kumar Agarwal, the proforma invoice, assessment of the same by Canara Bank and then disbursement of loan by way of bank draft for Rs.5,22,289.52 (sent by Canara Bank Branch to M/s Capital Vehicles Sales Pvt. Ltd. with covering letter Ex. PW­20/C (copy), its original is also part of seizure memo Ex.PW­26/A) followed by sales invoice by the M/s Capital Vehicles Sales Pvt. Ltd. is neither disputed nor it is making out any incriminating evidence against Kuldeep Kumar Agarwal; this documentation and process has happened in the middle phase/period from 25.2.2002. 12.4.4 In the other phases, which is prior to 25.2.2002 as well as after registration of vehicle bearing no. HR 38 GT 6145 needs discussion. First of all, the third phase/period is taken. The vehicle was registered in the registering authority and what happened [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 83 of 129] thereafter, the circumstances are speaking from the documents on record. On 15.4.2002 accused Kuldeep Kumar Agarwal wrote a letter (Mark­PW­20/D­51) to Canara Bank, Paharganj, Branch, that he could not get the vehicle insured immediately after taking its delivery, it could be got insured on 11.3.2002 by him, thus the letter was annexed with copy of cover note/ certificate­cum­policy (Ex.PW­20/D­50, which reflects insurance period from 11.3.2002 to 10.3.2003) vis a vis there is another an undated letter (Ex. PW­ 23/E) of M/s Capital Vehicles Sales Pvt. Ltd. informing Sr. Manager Canara Bank, which is bearing acknowledged seal of Canara Bank of its receipt on 22.3.2002 that all papers were sent by them to RTO, Faridabad.

Now the crucial question pertains to photocopy particulars of registration of HR 38 GT 6145 (Mark­A4, bearing under hire purchase agreement with Canara Bank, New Delhi), since there are rival contentions of the State and of the defence. A simple quest is there, who is supposed to be in possession of registration certification/particulars of registration? Its simple answer is only Kuldeep Kumar Agarwal. The vehicle was with Kuldeep Kumar. He got it insured. R/C was collected by him. There is also consistent narration by the star witnesses that copy of 'particular of registration/RC/Mark­A4' was furnished by accused Kuldeep Kumar Agarwal, its original was also produced which was seen by PW­3/Bank Officer also and there is no other contrary evidence [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 84 of 129] that Mark­A4 was furnished by someone else other than accused Kuldeep Kumar Agarwal. Moreover, it is Kuldeep Kumar Agarwal, who is a registered owner of vehicle HR 38 GT 6145 and he will always be in possession of original registration certificate, what prevented him to produce the registration certificate/particulars of registration before the Investigating Officer or before the Court during inquiry or trial to refute plea of Prosecution. Therefore, by taking consolidated stock of evidence and record, it stand established that copy of 'particulars of registration of HR 38 GT 6145/ Mark­A4' was furnished by accused Kuldeep Kumar Agarwal with the Canara Bank, Paharganj Branch, New Delhi vis a vis the official record of registration of vehicle HR 38 GT 6145 is not showing any such record that this vehicle was under hire purchase agreement with Canara Bank and the official record of certificate of registration Ex. PW­10/B reflects that 'hire purchase agreement was with M/s Novelty Finance Ltd.' which was created on 23.1.2003. Ld. Defence Counsel Sh. Amit Khanna, Advocate has contented, also on the basis of statement of PW­5, that there is no complaint by M/s Novelty Finance Ltd. as well as no opinion that Mark­A4 was prepared by accused Kuldeep Kumar Agarwal. However, it may be so that no complaint was filed by M/s Novelty Finance Limited for want of grievances, but the accused Kuldeep Kumar Agarwal furnished copy of particulars of registration Mark­ A4 to the Canara Bank by using said Mark­A4, being a forged [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 85 of 129] document, to authenticate that the said vehicle is under hire purchase agreement with Canara Bank, New Delhi, which he had purchased from auto­loan sanctioned. There is proof of allegations of use of forged document (Mark­A4) as genuine knowingly that the document produced is forged or not genuine. It will not extend any benefit to accused Kuldeep Kumar Agarwal that Mark­A4 is photocopy and the primary document is not produced as per section 62 of the Indian Evidence Act, 1872, since the original was with accused and Mark­A4 copy was produced by the accused Kuldeep Kumar Agarwal himself, which stand proved.

Now, the stage has come to discuss the phase/period prior to 25.2.2002. In the statements of PW­26 Raj Kumar Chopra, General Manager and PW­23 Dinesh Panwar, Sales Manager, both of M/s MGF Toyota, it has surfaced that accused Kuldeep Kumar Agarwal was issued proforma invoice dated 19.10.2001 (Mark­B, also reflects that the vehicle is to be hypothecated to Canara Bank) and sale certificate on Form­21 dated 19.10.2001 (Mark­C) for buying Qualis vehicle ( and at the cost of repetition it is bearing the same chassis number and engine number as mentioned in sales invoice of 26.2.2002 Ex.PW­23/C). PW­23 also deposed that the said vehicle, subject matter of proforma invoice and sale certificate (Mark­B and Mark­C) was delivered to Kuldeep Kumar Agarwal on 19.10.2001 itself on the basis of verbal approval from Standard Chartered Bank, later it had rejected the [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 86 of 129] request for loan of Kuldeep Kumar Agarwa. It is also deposed that the vehicle was not got registered after 19.10.2001 and that is why on the request of Kuldeep Kumar Agarwal proforma invoice dated 25.2.2002 (Ex. PW­23/A) was issued on request of Kuldeep Kumar Agarwal and he had also furnished a copy of registration certificate to M/s MGF Toyota, Gurgaon. There is no cross examination of PW23 on such vital aspects. Further, when the M/s MGF Toyota had received draft of Rs.5,22,289/­, it issued a formal receipt no. 3551 (Ex. PW­23/D, under allotment no. KK 1210 ). It is very much clear that there is practice of issuing formal receipts against payments by MGF Toyota/M/s Capital Vehicles Sales Ltd. However, M/s MGF Toyota/M/s Capital Vehicles Sales Pvt. Ltd had issued a certificate on letter­head dated 25.2.2002 (Ex. PW­ 23/B, during second phase) confirming receipt of Rs.1,49,000/­ from Kuldeep Agarwal, out of which a sum of Rs.1,15,210/­ is towards cost of vehicle and balance will be for "Reg./No. Plate/Insurance"; this certificate is not on a formal receipt as per practice. Its reason is also appearing from the record of seizure memo (Ex. PW­26/A Colly.) wherein a copy of formal receipt no. 2443 dated 12.10.2001 (under allotment no. KK 1210) for a sum of Rs.1,49,000/­ is there and knowing it very well that Kuldeep Kumar Agarwal had on earlier occasion deposited a sum of Rs.1,49,000/­, the said certificate of 25.2.2002 (Ex. PW­23/B) was issued on letter head but without disclosing/mentioning as to when a sum of [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 87 of 129] Rs.1,49,000/­ was actually received from Kuldeep Kumar Agarwal by M/s Capital Vehicles Sales Pvt. Ltd.. Now by arranging sequence of these events, which was also a dim submission on behalf accused Kuldeep Kumar Agarwal, that his previous application for loan was not considered by Standard Chartered Bank and he was left with no option but to approach other bank and he did so in order to protect his money on the one side, the vehicle may be deteriorated on the other side, it was to be bought and under these circumstances the loan was applied to Canara Bank. Despite this plea of accused Kuldeep Kumar Agarwal, it is to be seen whether accused Kuldeep Kumar Agarwal had disclosed these aspects in his application to Canara Bank, Paharganj Branch, New Delhi. The application is of 26.2.2002 (Ex. PW­2/A­3) addressed to Sr. Manager, Canara Bank, Paharganj, New Delhi that he applied for a vehicle loan (Qualis) in reference to Canmobile Scheme, as he is running business under the name and style M/s H.R. Industries and he requests to consider his application for grant of loan. On plain reading of this substance of application, nowhere he had disclosed about delivery of Qualis vehicle to him as per delivery note dated 19.10.2001 r/w sale certificate dated 19.10.2001 (Mark­C; part of seizure memo Ex. PW­26/A Colly.). Was it because of innocence or otherwise to mention these facts in the application dated 26.2.2002? It needs to look into the evidence again.

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 88 of 129] In the record of seizure memo [Ex. PW­23/C (Colly.)], it contains one request letter dated 27.2.2002 by accused Kuldeep Kumar Agarwal addressed to Manager M/s MGF Toyota that he had bought a Toyota Qualis on 19.10.2001, the Standard Chartered Bank had rejected his request for auto loan but he got the auto loan from Canara Bank, Paharganj Branch and he had requested to issue him refund cheque of Rs.28,557/­ at the earliest and subsequently a cheque no. 22900 dated 5.3.2002 for refund of Rs.28,557/­ was issued by M/s Capital Vehicles Sales Pvt. Ltd. in favour of Kuldeep Kumar Agarwal. It was refunded in lieu of deposit of money and there is also copy of one more formal receipt no. 2749 dated 17.11.2001 for Rs.30,000/­ deposited by accused Kuldeep Kumar Agarwal in his name (account KK­1210/782) and this refund of Rs.28,557/­ is from that amount of Rs.30,000/­. Since there are total three formal receipts (part of file Ex. PW­ 26/A) and the last receipt is of 26.2.2002 for Rs.5,22,289/­ vide no. 3551. This receipt no. 3551 is of the same reference allotment no. KK­1210. This discussion brings out that accused Kuldeep Kumar Agarwal was very much conscious and knowing that he had deposited Rs.1,49,000/­ on 12.10.2001 and another amount of Rs.30,000/­ with M/s MGF Toyota, out of which he got adjusted Rs.1,49,000/­ by getting letter/ certificate dated 25.2.2002 Ex. PW­ 23/B and with regard to another amount he got refund of Rs.28,557/­ on 5.3.2002 pursuant to his request dated 27.2.2002 [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 89 of 129] that too after his loan application and disbursement of loan on 26.2.2002 by Canara Bank. He has intentionally not disclosed in his loan application dated 26.2.2002 (Ex. PW­2/A­3) about facts of 19.10.2001 and induced the Bank to sanction loan, he succeeded to have loan from Canara Bank. Had it been disclosed to Canara Bank, Paharganj Branch about the status of his rejection of loan application by Standard Chartered Bank or other institution, the Canara Bank would be in a position to assess it or would not have allowed his application because financial factors were involved. It also implies that accused Kuldeep Kumar Agarwal was knowing that his loan application would be rejected, if he discloses factor of delivery of vehicle to him on 19.10.2001 and rejection of applications by other banks. The proforma invoice of 19.10.2001 is also reflecting 'hypothecation to Canara Bank. In this way, the accused Kuldeep Kumar Agarwal withheld vital information of financial aspect from Canara Bank and induced the Canara Bank, Paharganj Branch to sanction & disburse him loan for buying the vehicle, he also succeeded. After registration he used forged 'copy of particulars of vehicle (Mark­A4) that vehicle is under hire purchase agreement to Canara Bank. This proves charge of cheating u/s. 420 IPC and of section 471 r/w sec. 468 IPC for use of forged document (Mark­A4) as a genuine document in terms of section 471 r/w sec, 468 IPC, their essentials have already been detailed in paragraph 9 above.

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 90 of 129] The accused Kuldeep Kumar Agarwal's stand that his money was already with MGF Toyota or vehicle was deteriorating or it was to be bought, may be his own reasons to save it but why he concealed the important facts having roots of financial implications and induced the Bank to give him loan and then furnishing of forged copy of particulars of registration (Mark­A4); his reasons will not dilute the proved charges.

12.4.5 The findings on this issue will remain incomplete, if other relevant aspects are left to mention. M/s MGF Toyota/M/s Capital Vehicles Sales Pvt. Ltd had issued a certificate on letter­ head dated 25.2.2002 (Ex. PW­23/B) of receipt of sum of Rs.1,49,000/­ from Kuldeep Kumar Agarwal, on account of cost of vehicle and other allied expenses of insurance etc., then why it had not got insurance policy for the vehicle? The vehicle was got insured by accused Kuldeep Kumar Agarwal himself on 11.3.2002 (after sale invoice of 26.2.2002), he furnished the copy of insurance with request letter to Canara Bank of delay happened. Secondly, why M/s MGF Toyota/M/s Capital Vehicles Sales Pvt. Ltd issued certificate on letter head, without disclosing the fact of delivery of vehicle on 19.10.2001 to Kuldeep Kumar Agarwal and receipt number of amount received on 19.10.2001? What were circumstances the Invoice of 19.10.2001 was carrying endorsement 'lease/hypothecation to Canara Bank' and what were actual reasons of M/s MGF/M/s Capital Vehicles Sales Pvt Ltd for [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 91 of 129] issuing fresh/new invoice of 25.2.2002, when there was already sale certificate & invoice of 25.2.2002?. The entire investigation is silent in this regard, in fact no investigation was forwarded on these issues, although papers are in the file collected. Moreover, it will not give any benefit to accused Kuldeep Kumar Agarwal because the charges proved against him are beyond reasonable doubt and these aspect will not dilute in his favour.

13.1 Now charge of other transaction of buying of second hand TATA truck bearing registration no. DL­IGB 2423 by A2 Kuldeep Kumar Agarwal (against loan from Canara Bank, Paharganj Branch, New Delhi) from M/s Jai Ambey Roadline, Prop Satish Kumar is being considered and accused A1 Ravi Bansal stood guarantor. It pertains to accused Kuldeep Kumar Agarwal and accused Ravi Bansal. This will be in view of observation given in para 11.4 above.

13.2 Ld. Public Prosecutor contends, as detailed in the outlines, that as per plan accused Kuldeep Kumar Agarwal had opened current account with the Canara Bank, Paharganj Branch and then availed overdraft facility, followed by one more application for buying second hand Tata truck bearing registration no. DL 1GB 2423 from M/s Jai Ambey Roadline, Proprietor Satish Kumar and induced the Canara Bank to give him loan, however, the record of registration certificate furnished was found forged and fabricated vis a vis a forged registration certificate was also furnished subsequently, this all was carried as a conspiracy of the accused [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 92 of 129] persons, which is proving from the record and circumstances. The statement of PW­2, PW­3, PW­7, PW­8, PW­17, are not only make it crystal clear but also establish that this exercise of obtaining loan for buying second hand Tata Truck was by way of a camouflage and the amount was siphoned since there was no M/s Jai Ambey Roadline of Proprietor Satish Kumar. Ravi Bansal, who had also received the amount, in this transaction of truck. There is proof of conspiracy to cheat, of cheating, forgery of document and its use by them.

13.3.1 Sh. Amit Khanna, Advocate for accused Kuldeep Kumar Agarwal has juxtaposition plea that on the face of submission on behalf of State, it is being projected as if there is conspiracy, cheating or forgery or use of forged document but on the floor test of evidence, the said submissions are liable to be discarded. There was a loan application, it was processed by the officers of Bank, the Tata Truck bearing registration no. HR 1 GB 2423 was also inspected by the Bank and then loan was sanctioned, the Bank had also the valuation/inspection report (dated 4.9.2002 Ex. PW­ 2/A­45) given by PW­7 Sh. Kailash Kaushik, Surveyor and Loss Assessor and thereafter considering all record of vehicle as well as inspection of truck the loan was disbursed. There is no proof of any offence against Kuldeep Kumar Agarwal. The prosecution got examined PW­17 Sh. Vinod Kumar Sharma from the office of [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 93 of 129] MLO, Transport Department, he was also cross examined in detail, however, he could not give any convincing evidence with regard to alleged forgery of copy of registration certificate dated 12.8.2002 (Ex. PW­3/A­7) or of copy of registration certificate dated 16.9.2002 (Ex. PW­2/44). In addition, one more witness namely PW­25 Sh. Raj Kumar was got examined with regard to address C­1, New Subzi Mandi, Azadpur, Delhi of address of M/s Jai Ambey Roadline, by simply reading his complete testimony, his statement is not convincing because of contradictory reply with regard to substantive questions put to him, as on the one side he claims that there are only two floors (viz the ground floor and the first floor) in C­1, New Subzi Mandi, Azadpur, Delhi out of them ground floor is under the tenancy of PW­25 and he claims the first floor is with office of Association of Fruit Merchants but during his cross examination, he also deposed that there is also basement in the said building and back portion of ground floor is with Mr. Deepak Jain. PW­25 has given contradictory statement and his testimony cannot be believed. Since PW­2 and PW­3 are the Bank officers, who had also dealt the processing of loan application, they have not inferred any incriminating thing, consequently no charge has been proved against Kuldeep Kumar Agarwal. Lastly, PW­20 Sh. Ajit Nair, Manager in Canara Bank had carried the inquiry (Ex. PW­6/A), it cannot be construed an evidence and PW­ 20 claims as if investigation was carried by him, it is not an [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 94 of 129] investigation; that report cannot be read as an evidence, particularly allegations were required to be established before the court of law which prosecution failed to prove it. There are many hands involved either in the bank or RTO or other, but no where accused was found involved. The concept of vicarious liability is being invoked against the accused, it is alien in criminal law. Lastly, the Tata Truck was not seized by police. It ought to be seized and produced before the court. The accused Kuldeep Kumar Agarwal is to be exonerated from the charge of this transaction as prosecution failed to establish it. 13.3.2 Sh. JC Mishra, Advocate for Ravi Bansal, submits on the line of Sh. Amit Khanna, Advocate and he also supplements that there was no flaw or irregularity found in the documents furnished to Canara Bank, Pahargaj Branch while standing surety/guarantee for Kuldeep Kumar Agarwal. The role of accused Ravi Bansal is also to that extent and nothing more. Accused Ravi Bansal is no where in picture either at the time of applying for loan for truck by accused Kuldeep Kumar Agarwal or its disbursement. Otherwise, it was duty of the Bank of verify the documents from concerned authority before disbursement of loan, to physically inspect the vehicle, particularly its chassis number and engine number, when there is loan for second hand vehicle but it failed. Witness PW7/surveyor had also not inspected the vehicle before [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 95 of 129] giving valuation report (ExPW2/A45). How accused Ravi Bansal can be faulted or brought under criminal law.

So far opening of account in the name of M/s Jai Ambey Roadline is concerned, the accused Ravi Bansal has no role at all nor any concern. Nowadays, it is not difficult to have photograph and other materials secured by way of technology or otherwise. Accused Ravi Bansal is brother of accused Kuldeep Kumar Agarwal and Ravi Bansal has not opened the bank account with Oriental Bank of Commerce, Rani Bagh Branch, Delhi. Moreover, PW16/Branch Manager of Oriental Bank of Commerce, Rani Bagh Branch, Delhi failed to establish that accused Ravi Bansal physically came to Bank or he opened the account no.242 or he operated it. PW16 explains that he has no personal knowledge of those transaction of withdrawal of amount by cheques (Ex.PW16/D, Ex.PW16/E, Ex.PW16/F and Ex.PW16/G). Ravi Bansal is an illiterate person, he never issued those cheques. There is no proof that A1 Ravi Bansal had opened or operated that account but there is misuse of photographs and record by other co­accused.

13.3.4 Shri Amit Khanna, Advocate for accused A­2 Kuldeep Kumar Agarwal has counter submission to the stand of accused A1 Ravi Bansal. It cannot be accepted as bald allegations that there is misuse of photographs and other record, since evidence is to be assessed. When Bank officers/witnesses of Canara Bank [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 96 of 129] were cross examined on behalf of accused Ravi Bansal, they were suggested that there was no flaw or irregularities in the documents of Ravi Bansal. Similarly, when PW16/Vipin Kapoor Manager Oriental Bank of Commerce, Rani Bagh Branch, appeared in witness box, he was not cross examined on the issues being raised in final submissions on behalf of Ravi Bansal. There was no cross examination that Ravi Bansal had not come for opening of account or he had not furnished photos or application forms for opening the account and later on an attempt was made to ask so from IO, whereas the best witness was PW16 to be confronted with these questions, who dealt the application. 13.3.5 Ld. Public Prosecutor also supplements that accused Ravi Bansal had disclosed him 'graduate' to Bank as well as he signed his statement u/s 313 CrPC in fluent English. There no challenge to the testimony of PW16 in respect of opening or operation of account no.242.

Whereas ld. defence counsel further requests that Ravi Bansal can make his signature in English but none else.

13.4 (Findings with reasoning on transaction of TATA truck)­ The rival submissions are considered, compared and assessed, in the light of undisputed documents already detailed in paragraph no. 83C and 8.3D as well as the test of law enumerated in paragraph [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 97 of 129] no. 9 above. However, they are also subject to constraint of paragraph no.11.4 above.

Generally under the criminal law a person is liable for his own acts and not for others. But there are some exception to it viz. Sections 34/35 IPC (when acts are done by several person in furtherance of common intention), sections 107­117 (abetment), sections 120A/120B IPC (criminal conspiracy) and 149 IPC (commission of offence committed in prosecution of common object).

In order to appreciate the rival contentions, the relevant witnesses for this issue are PW­2 Sh. B.V Nayak & PW­3 Sh. M.V. Ramanarao (both Bank officers), PW­17 Sh. Vinod Kumar Sharma (UDC MLO, Headquarter), PW­8 Sh. Rajender Bhardwaj (relating to ownership/purchase of Tata truck HR 1 GB 2423), PW­16 Sh. Vipin Kapoor (Manager Oriental Bank of Commerce, Rani Bagh Branch, in respect of transaction in account no.242 of M/s Jai Ambey Roadline of Ravi Bansal), PW­7 Sh. Kailash Kaushik (Valuer of Tata truck), PW­11 Dr. Ravindra Sharma, (Assistant GEQD/Handwriting Expert) and PW­25 Sh. Raj Kumar (of Dashmesh Golden Transport Company at C­1, New Subzi Mandi, Azadpur, New Delhi). Similarly, the relevant documents (mostly enumerated in paragraph 8.3C and 8.3D above) with regard to transaction of Tata Truck DL 1GB 2423 are namely application dated 5.9.2002 for loan (Ex. PW­2/36) accompanying photocopy of [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 98 of 129] registration certificate dated 12.8.2002 (of DL 1GB 2423 Ex. PW­ 3/A7 of registered owner M/s Jai Ambey Roadline), copy of its fitness certificate dated 27.6.2002 (Ex. PW­2/A­46), sale agreement dated 4.9.2002 (Ex. PW­2/A­47, between buyer Kuldeep Kumar Agarwal and seller M/s Jai Ambey Roadline, Proprietor Satish Kumar of Tata Truck DL 1GB 2423), advance receipt dated 4.9.2002 of Rs.1,45,000/­ (Ex. PW­2/A­48, issued by M/s Jai Ambey Roadline, Proprietor Satish Kumar). In addition, copy of new registration certificate is of 16.9.2002 (PW­2/A44 of Tata Truck DL 1GB 2423) after said transaction. Opening of current account no. 242 with Oriental Bank of Commerce by Ravi Bansal (Ex. PW­11/A­37), account opening form (Ex. PW­16/B), statement of account no. 242 (Ex.PW­16/C) and expert opinion report (Ex. PW­11/40). By reading the oral statement of aforementioned witnesses alongwith the record referred vis a vis its analysis, the following conclusions are drawn:­

(a) There is no dispute so far Kuldeep Kumar Agarwal had opened his account with the Canara Bank, Paharganj Branch as well as the documents subscribed by him for opening the account.

(b) There is also no dispute that Kuldeep Kumar Agarwal, Proprietor M/s Shree Bajrang Store opened his account no. 214 with Oriental Bank of Commerce on 18.7.2002 (vide application Ex. PW­16/B, specimens Ex. PW­16/H, by furnishing rent agreement dated 16.7.2002 of showing his address 32 Western Colony, Sonepat, with identity proof Ex. PW­16/J).

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 99 of 129]

(c) There is also no dispute (by accused Kuldeep Kumar Agarwal) of introduction by M/s Shree Bajrang Store, Proprietor Kuldeep Kumar Agarwal in respect of opening of account no. 242 by M/s Jai Ambey Roadline, Proprietorship firm of Ravi Bansal with Oriental Bank of Commerce Rani Bagh Branch, Delhi as well as application dated 6.9.2002 (Ex. PW­11A/37) and the specimen card (Ex. PW­11/A­36) carrying signature and seal of 'For JAI AMBEY ROADLINE Prop). Accused Kuldeep Kumar Agarwal also confirms it in his reply to question no.144 (during statement u/s 313 CrPC) that opening of account, specimen are matter of record.

(d) Accused Ravi Bansal took stand in his statement u/s 313 CrPC (reply to question no.Q144) by denying opening of account no. 242 by M/s Jai Ambey Roadline, with Oriental Bank of Commerce or his application dated 6.9.2002 (Ex. PW­11A/37, the specimen card is Ex. PW­11/A­36 carrying signatures and seal of 'For JAI AMBEY ROADLINE Prop) and this plea was reiterated during final submission, whereas stand being taken in his statement or final submission was not confronted to PW16 (who is same Bank Manager at the time of opening of account no.242 on 6.9.2002 as well as when appeared in the witness box). To say, PW16 has established that account no.242 was opened as per practice and rules by way of application dated 6.9.2002 (Ex. PW­11A/37, the specimen card is Ex. PW­11/A­36 carrying signature and seal of 'For JAI AMBEY ROADLINE Prop) and this aspect was not disputed during the statement of PW16. Otherwise, there is no contrary evidence to dispute it except oral suggestions.

The signatures in official record of Bank were taken as admitted signatures (A3 to A10, A11 and A12) by investigating agency for the purposes of expert opinion.

(e) Application dated 5.9.2002 to Canara Bank for loan of buying second hand Tata Truck open body by Kuldeep Kumar Agarwal (Ex. PW­2/A­36) is not disputed. Application was narrating and enclosing copy of RC dated 12.8.2002 (Ex. PW­3/A­7) of vehicle DL1GB 2423/Tata 2516; copy of fitness certificate dated 27.6.2002 [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 100 of 129] (Ex. PW­A/46); valuation report dated 4.9.2002 (Ex. PW­2/A­45); sale agreement dated 4.9.2002 between M/s Jai Ambey Roadline, Proprietor Satish Kumar & and Kuldeep Kumar Agarwal (Ex. PW­ 2/A­47); advance receipt dated 4.9.2002 (Ex. PW­2/A­48 of Rs.1,45,000/­ out of Rs.9,65,000/­). Accused Kuldeep Kumar Agarwal also confirms in statement u/s 313 CrPC (reply to question 148) about buying of Tata truck from M/s Jai Ambey Roadline as well as disbursement of amount.

(f) PW­7 Kailash Kaushik had given Valuation Report Ex. PW­2/A­ 45 and PW­7 affirmed it in his statement with further explanation that the report was given on the basis of looking at registration certificate in the name of M/s Jai Ambey Roadline, age of vehicle and the report was given on the request of accused Ravi Bansal, who had shown registration certificate too. There was no physical verification of vehicle by him.

(g) As per statement of PW­17 Sh. Vinod Kumar Sharma, (UDC, Transport Department NCT of Delhi) the present owner of the vehicle bearing registration no. DL 1GB 2423 is PW­8 Rajender Bhardwaj, he had purchased it from Ghanshyam Dass Verma and at the time vehicle was transferred in the name of Rajender Bhardwaj, there was no hypothecation clause in the record (Ex. PW­17/B (colly.) vis a vis originally the vehicle was registered in the name of Rishal Singh, the original RC of Rishal Singh is part of record/file/Ex. PW­17/B(Colly.). When the vehicle was transferred in the name of Ghanshyam Dass Verma, MLO Mr. John had initialed the Form No. 30 at Point­A1.

As per the version of PW­17 the vehicle DL 1GB 2423 was never registered in the name of M/s Jai Ambey Roadline or Kuldeep Kumar Agarwal and he also compared the photocopy of registration certificate dated 12.8.2002 (Ex. PW­3/A­7, it was furnished by accused Kuldeep Kumar Agarwal with application for loan), which is not as per the official record Ex. PW­17/B, whereas copy of registration certificate Ex. PW­3/A­7 shows the owner's name and address as Jai Ambey Roadline C­1 Azadpur, Delhi.

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 101 of 129]

(h) PW­17 also compared the official record of DL 1GB 2423 with the copy of registration certificate dated 16.9.2002 [Ex. PW­2/44, this copy was also furnished by accused Kuldeep Kumar Agarwal to Canara Bank that vehicle stood transferred in his name after loan from Canara Bank Branch, Paharganj, Delhi] and PW17 deposed that vehicle DL 1GB 2423 is not in the name of Kuldeep Agarwal as per official record as being appearing in copy Ex. PW­ 2/A­44.

(i) PW­8 Sh. Rajender Bhardwaj deposed that he had bought this vehicle from Ghanshyam Dass Verma and two Form No. 30 (Ex. PW­8/A and Ex. PW­8/B of Nov/Dec.2003, being part of file Ex. PW­17/B(Colly.) were executed in his favour by Ghanshyam Dass Verma and the statement of PW­8 is reconciling with the record brought by PW­17 as well as statement of PW17. PW 8 Rajender Bhardwaj is present registered owner of said TATA Truck DL 1GB 2423 and he also deposed that he is in possession of the vehicle. There is no cross examination on this count on behalf of accused.

(j) By reading the statements of PW17 and PW8 with record together, initially registered owner of DL 1GB 2423 was Rishal Singh vide Original RC no.13.11.1996; he transferred it to Ghanshyam Dass Verma on 19.10.2000, its original R/C deposited with RTO is part of record and next owner is PW8 Rajender Bhardwaj from Nov/Dec.2003, the entire record is Ex PW17/B (Colly) of this vehicle. Neither M/s Jai Ambey Roadline nor Satish Kumar remained its owner any point of time.

(k) PW­16 Sh. Vipin Kapoor, Officer Oriental Bank of Commerce, Rani Bagh Branch has proved that Ravi Bansal had opened current account no. 242 in the name of M/s Jai Ambey Roadline (Ex. PW­11/A­37), the photograph of Ravi Bansal has also been proved (Ex. PW­11/A­36) and account was introduced by another account holder M/s Shree Bajrang Store being Proprietorship firm of accused Kuldeep Kumar Agarwal. The Canara Bank issued Pay [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 102 of 129] Order no. 941868 for Rs.8,20,000/­ in favour of M/s Jai Ambey Roadline drawn on Canara Bank, Paharganj Branch, which was discounted for Rs.5 lakh after deducting Bank's commission, a sum of Rs.4,98,500/­ was credited in the account no. 242 of Jai Ambey Roadline of Ravi Bansal on 6.9.2002 and also Rs.3,20,000/­ was credited on 10.9.2002 in said account no.242, the respective entries are shown in the statement of account of account no.242 (Ex. PW­16/C ) at Point­X and Y respectively. To say, the amount of Rs. 8,20,000/­ sanctioned for auto loan for Tata Truck DL 1G 2423 was on the basis of agreement to sell & advance receipt filed with the application of Kuldeep Kumar Agarwal, the Pay Order was accordingly prepared in the name of M/s Jai Ambey Roadline, it was deposited in the account no.242 of M/s Jai Ambey Roadline of accused Ravi Bansal being maintained with Oriental Bank of Commerce, Rani Bagh Branch.

(l) From the conclusion drawn in paragraph (a) to (k) above, it is apparent that accused Kuldeep Kumar Agarwal applied for auto loan for buying second hand Tata Truck DL 1GB 2423 and he had furnished documents that the vehicle is in the name of M/s Jai Ambey Roadline, he had bought it for Rs.9,65,000/­ out of which he had paid advance of Rs.1,45,000/­ to the seller M/s Jai Ambey Roadline, a proprietorship firm of Satish Kumar and after sanctioning of the loan, a bank draft of Rs. 8,20,000/­ was issued, which was deposited in the account no. 242 of M/s Jai Ambey Roaline of accused Ravi Bansal maintained with the Oriental Bank of Commerce, Rani Bagh Branch, New Delhi. These facts are crystal clear by reading the statements of witnesses PW­16, PW­7, PW­2 and PW­3 and record.

In addition as per statement of PW­17 the vehicle bearing registration no. DL 1GB 2423 was never in the name of M/s Jai Ambey Roadline or in the name of Kuldeep Kumar Agarwal at any point of time but initially it was in the name of Sh. Rishal Singh, from whom the vehicle was bought by Ghanshayam Dass Verma and its present registered owner is PW­8 Rajender Bhardwaj and PW­8 Rajender Bhardwaj also confirms so. It is also crystal clear [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 103 of 129] that the Bank loan was obtained by Kuldeep Kumar Agarwal on the basis of sale agreement Ex. PW­2/A­47 and advance receipt Ex. PW­2/A­48 (both of 4.9.2002) when the same were filed with the application form (Ex. PW­2/A­36 of 5.9.2002) by projecting that the seller is M/s Jai Ambey Roadline of Satish Kumar. If the seller of vehicle was Satish Kumar of M/s Jai Ambey Roadline or advance amount of Rs.1,45,000/­ was also given to said Satish Kumar, then why pay order of Rs,.8,20,000/­ was deposited in the account no.242 of M/s Jai Ambey Roadline of accused Ravi Bansal? From this discussion many more aspects are emerging, which nullifies the contentions raised on behalf of the accused persons, they are enumerated here­under from point (m) to (u):­

(m) It needs to visit advance receipt Ex PW2/A­48 & sale agreement dated 4.9.2002 Ex. PW­2/A­47 [which is between seller Satish Agarwal, Proprietor M/s Jai Ambey Roadline and the buyer Kuldeep Kumar Agarwal] AND Rent agreement dated 6.9.2002 [Ex. PW­11/A­38, between first party/landlord Kanti Bhai Patel and tenant/Ravi Bansal, Proprietor M/s Jai Ambey Roadline, C­32 Dishad Garden, Shahdara, filed by Ravi Bansal alongwith his application form dated 6.9.2002 (Ex. PW­11/A­37) while opening the bank account no. 242 with Oriental Bank of Commerce, Rani Bagh, Delhi]. By keeping these documents side by side, many facts are emerging & speaking themselves.

(n) To say, the agreement to sell (Ex. PW­2/A­47) is bearing signature of Kuldeep Kumar Agarwal at Point­Q30 and Q­31 being second party therein (his signatures Q30 & Q31 were confirmed with his specimens S­31 to S­35 in handwriting expert report Ex. PW­11/40) and signature of Satish Kumar, Proprietor M/s Jai Ambey Roadline is with his seal, which reads "For JAI AMBEY ROADLINE Prop". This non­judicial stamp paper was purchased on 4.9.2002 and this agreement was witnessed by Ram Chander, 96­A, Pitampura, Delhi. The advance receipt has also been executed under the same seal and signature of Satish Kumar, it bears the same rubber stamp "For JAI AMBEY ROADLINE Prop", [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 104 of 129] which is also in agreement to sell. The other document Rent Agreement (Ex. PW­11/A­38) is between Kanti Bhai Patel and accused Ravi Bansal, Proprietor Jai Ambey Roadline, there are admitted signatures (at Point A­11 and A­12) of Ravi Bansal, this agreement is also witnessed by Ram Chand, 96­A Pitampura, Delhi. This Ravi Bansal had signed at Point­A11 and A12 alongwith rubber stamp "For JAI AMBEY ROADLINE Prop". The rubber stamp impression "For JAI AMBEY ROADLINE Prop" on agreement to sell, advance receipt and rent agreement is the same (by size of letters (font size), shape, style and ink impressions), by looking by bare eyes, also by putting one paper on the other corresponding stamp impression and it also confirms by looking from magnifying glass as well as by measuring it with scale. To say, the stamp paper for agreement to sell was bought on 4.9.2002 and stamp paper for rent agreement was bought on 6.9.2002 from the same stamp vendor as well as the manner in which both were executed (including a witness to them), it cannot be termed a coincident since all of them are bearing same rubber stamp "For JAI AMBEY ROADLINE Prop" in agreement to sell, which is also repeat in rent agreement. This similar stamp for "For JAI AMBEY ROADLINE Prop" is also in the application form and specimen for opening the bank account no. 242 (Ex.PW­11/A­37 and Ex.PW­11/A­36) . Thus, what conclusion can be drawn that the rubber stamp used with the name of Satish Kumar as Proprietor Jai Ambey Roadline on 4.9.2002 in the agreement to sell, it is the same rubber stamp used for opening the bank account by Ravi Bansal on 6.9.2002 and also in the rent agreement. In the agreement to sell signatures of Kuldeep Kumar Agarwal are points at Q­30 and Q­31, this also shows that both Kuldeep Kumar Agarwal and Ravi Bansal were performing these acts and deeds with the confidence and planning of each other, without it the existence of these documents could not happened.

The elements of conspiracy between accused A2 Kuldeep Kumar Agarwal and accused A1 Ravi Bansal was also existing and it stands proved. However, accused will not derive any benefit that charge u/s 120B IPC was for three accused & not exclusively [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 105 of 129] for these these two accused persons (A1 & A2), because­ firstly, the findings being returned are not in respect of A3 Gopal Prasad, secondly in terms of spirit of sec. 221(2) CrPC (when one of offence is proved in series of acts but offence was not charged) there is no bar to give such findings in respect two accused persons on the basis of evidence on record, particularly formal charge u/s 120B IPC was framed against both the accused too.

(o) Had the accused Kuldeep Kumar Agarwal bought the TATA truck DL IGB 2423, he would have been in possession of original Registration Certificate and produced it during investigation or in inquiry or trial to discard the plea of prosecution, he did not do so. Similarly, had he been in possession vehicle/TATA truck, he can produce in the court instead of taking plea of that truck was not seized during investigation, otherwise what was need to seize the Tata truck to make it case property by investigating agency? Moreover, PW8 Rajender Bhardwaj deposed his ownership in possession of said truck, his possession of vehicle was not challenged during his cross examination, that proved fact could not be disproved by the accused persons. These contentions would not dilute the charge or to help accused persons in any manner.

(p) When accused Kuldeep Kumar Agarwal applied for loan, he filed an application with copies of record, including copy of registration certificate bearing transfer date 12.8.2002 (Ex PW­ 3/A7) showing owner's name Jai Ambey Roadline of C­1 Azad Pur, Delhi. Firstly it is photocopy of computer/printed matter & secondly it stand proved the vehicle DL 1GB 2423 was never in the name of Jai Ambey Roadline, C1 Azadpur, Delhi, therefore, statement of PW25 would not help the accused persons in case PW25 has explained certain facts about existence of basement as well as Mr. Deepak Jain is in back portion of ground floor of C­1, Azadpur, Delhi.

The accused Ravi Bansal had forged registration certificate in computer/printed form (Ex PW3/A7) to show vehicle is in the name of M/s Jai Ambey Roadline C­1 Azadpur, Delhi, because he [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 106 of 129] had bank account in the name of M/s Jai Ambey Roadline, the valuation report was got prepared by him on the basis of registration certificate from PW7 and accused Kuldeep Kumar Agarwal furnished it by using it to make it believed by Canara Bank to disburse him loan, he succeeded so. Accused Kuldeep Kumar Agarwal also re­affirms in his statement u/s 313 CrPC that he had bought the vehicle from M/s Jai Ambey Roadline. Moreover, accused Kuldeep Kumar Agarwal has also created a document of agreement to sell and advance payment receipt in his favour showing to be from under seal and signature M/s Jai Ambedy Roadline of Satish Kumar, however, that seal/stamp is of Ravi Bansal, Prop M/s Jai Ambey Roadline, in whose account that amount of loan of Rs.8,20,000/­ was credited & discounted. By projecting of name of M/s Jai Ambey Roadline (as if of Satish Kumar) in the application, pay order of Rs.8,20,000/­ of the loan amount (in favoaur of M/s Jai Ambedy Roadline) was got issued and then deposited in the account no.242 of M/s Jai Ambey Roadline of Ravi Bansal and received the amount by accused Ravi Bansal in that account. The said amount of Rs.8,20,000/­ was withdrawn from 6.9.2002 to 10.9.2002, vide cheque of Rs. 3 lakhs Ex.PW­16/D & cheque of Rs.55,000/­ of 6.9.2002 Ex. PW­16/E by accused Ravi Bansal himself and another cheque of Rs.1,45,000/­ dated 7.9.2002 Ex. PW­16/F in favour of self but withdrawn by token holder Devender; and a cheque of Rs.3,20,000/­ of 10.9.2002 Ex. PW­16/G was in favour of Ramesh but actually it was accused Kuldeep who took the token of cash and received the amount; all the cheques were issued under the seal and signature of M/s Jai Ambey Roadline, Proprietor Ravi Bansal. In this way from 6.9.2002 to 7.9.2002 there were withdrawals of amount by cheques of Rs.5 lakh and upto 10.9.2002 it was another cheque of Rs.3,20,000/­ vis a vis as per statement Ex. PW­16/C out of Rs.8,20,000/­ an amount of Rs. 5 lakh was received in account on 6.9.2002 (bank commission was deducted therefrom) and another amount of Rs.3,20,000/­ was received in bank account too. The entire amount was withdrawn by accused Ravi Bansal and accused Kuldeep Kumar Agarwal besides another self­bearer [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 107 of 129] cheque of Rs.1,45,000/­ but withdrawn by Devender. Later­on, another photocopy of printed/computer generated registration certificate of 16.9.2002 (Ex.PW2/A44) was also furnished to the Canara Bank to project that the vehicle was got registered in the name of Kuldeep Kumar Agarwal, Registeration certificate (ExPW2/A44) is also a forged document alike RC dated 12.8.2002 (Ex PW3/A7), which could be possible by meeting of their heads and hands.

(r) Both accused A2 Kuldeep Kumar Agarwal and A1 Ravi Bansal were asked [in question nos.111, 148­151 during their statements u/s 313 CrPC] about sale and purchase of Tata truck, draft amount & the cheques pertaining to account no.242 M/s Jai Ambedy Roadline. Accused A­2 Kuleep Kumar Agarwal reiterated that he had bought the Tata Truck from M/s Jai Ambedy Roadline (of Satish Agarwal) and it was firm of A1 Ravi Bansal but Ravi Bansal told him/A2 that he/A1, had sold the firm to Satish Agarwal. The demand draft as well as cheques for withdrawal are matter of record, he/A2 had not withdrawn any cheque amount from account of M/s Jai Ambey Roadlines. But accused A­1 Ravi Bansal says that he does not know about amount of demand draft credited into account no.242 nor about cheques ExPW16/D, ExPW16/E, ExPW16/F and Ex PW16/G or withdrawal of amount.

However, evidence on record speaks some other facts as compare to explanation of accused in their statements. The sale agreement of TATA truck is of 4.9.2002 Ex PW2/A47 (between Satish of M/s Jai Ambey Roadlines and Kuldeep Kumar Agarwal, signed by both of them). Account no.242 was opened on 6.9.2002 in the name of M/s Jai Ambey Roadline by A1 Ravi Bansal and it was introduced by accused A2 Kuldeep Kumar Agarwal, the application form ExPW11/A37 was accompanied with rent agreement of 6.9.2002 (of landlord Kanti Bhai and tenant Ravi Bansal, of M/s Jai Ambey Roadline). Had the firm Jai Ambey Roadline was already sold to Satish Agarwal on or before 4.9.2002, then what was reason for accused A2 Kuldeep Kumar Agarwal to make introduction for opening of account no.242 on [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 108 of 129] 6.9.2002 by M/s Jai Ambey Roadline of A1 Ravi Bansal vis a vis what was the need for opening account in the name of M/s Jai Ambey Roadline if it was already sold to Satish Kumar and deposit of draft of Rs.8.20 lakhs in that account no.242. The statement of account ExPW16/C is upto 2004, it is showing operation of account by many transactions subsequent to 10.9.2002 too. Thus, their showing of ignorance or plea in statements u/s 313 CrPC do not dilute the allegations against them. In fact, in this way an attempt is being made to show that they had no meeting of mind but foot­prints of record is exposing that this was also a strategy of their minds.

(s) There is same chassis no.396005CZZ202405 and engine no.00B62139253 mentioned in Valuation Report (Ex.PW2/A45, when valuing the Tata truck for Rs.9.65 lakhs), in copy of Registration Certificate (Ex.PW3/A7 in the name of M/s Jai Ambed Roadline, when loan application was filed) and in R/C (Ex.PW2/A44 in the name of Kuldeep Kumar Agarwal, after loan was disbursed).

(t) It is acclaimed by Ravi Bansal is illiterate except to write in English, that is why there was no reason for him to open or operate account no.242 or affairs connected thereto.

It is to be assessed from the record itself and then its result. There is no dispute that accused A1 Ravi Bansal has an account no.58115 opened on 31.7.2002 with Canara Bank, he signed application/specimen (Ex PW2/A22) as Prop. of Durga Roadline and account was in operation by him, he had received payments by cheques (ExPW2/A19 & Ex.PW2/A20 respectively of 14.9.2002 and 25.9.2002). It is also not disputed accused A2 Kuldeep Kumar Agarwal had account no.58126 in the name of M/s H R Industries, the said A1 Ravi Bansal stood surety/guarantor vide guarantee agreement (ExPW2/A17=ExPW11/4) bearing his signature Q­77 to Q­80. He also gave his guarantee also vide agreement ExPW2/A8, which is also not disputed. However, the account no.242 opened with Oriental Bank of Commerce, Rani Bagh Branch is being [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 109 of 129] challenged on ground of illiteracy, but it is without substance for want of any challenge to the testimony of PW16 or to confront him that it was not opened by account Ravi Bansal or by other contrary evidence. Moreover, on the one side there are inter­se transactions of cheques between M/s HR Industries & M/s Durga Roadline of Cheques ExPW2/A19 & ExPW2/A20 vis a vis accused Kuldeep Kumar Agarwal introduced for opening account no.242 on 6.9.2002. There is no material to belive that there was misuse of signatures of Ravi Bansal.

(u) The specimen of Ravi Bansal are S­11 to S­25, his admitted signatures are A3 to A12 on specimen sheet of bank, application form Ex PW11/A37 and rent agreement ExPW11/A38, which were analysed with many questioned signatures inclusive of Q­77 to Q80 (on guarantee agreement), the report Ex PW11/40 confirms those signatures Q77 to Q 80 with specimen S11 to S25 & A3 to A12. Thus, general plea of accused A1 Ravi Bansal in his defence that his signatures were obtained on many papers or the same were misused, it is also not proved by him.

Accused A1 Ravi Bansal says that his specimen were manipulated (in reply to question no.248 on the point of opinion of handwriting expert) but he could not prove, how or in what manner it were manipulated, whereas other accused A2 Kuldeep Kumar says he does not know about his specimen, it will also not help him.

13.5 Hence, in view of above conclusions, it is held that in the transaction of Tata Truck DL 1G 2423, charges (i) u/ss 120­B (2) r/w 420, 468, 471 r/w section 468 IPC & u/s 120B(1) r/w sec.467 IPC (ii) charge of substantial offences u/ss 420, 467, 468, 471 r/w 468 IPC against A1 Ravi Bansal and (iii) u/ss 120­B (2) r/w 420, 468, 471 r/w section 468 IPC & u/s 120B(1) r/w sec.467 IPC (iv) charge of substantial offences u/ss 420, 468, 471 r/w 468 IPC [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 110 of 129] against accused A2 Kuldeep Kumar Agarwal have been proved. There was no formal charge of substantive offence u/s 468 IPC against accused A2 Kuldeep Kumar Agarwal, however, on proof of forged agreement to sell, bearing signature of accused Kuldeep Kumar Agarwal (at points Q30 & Q31) and in terms of section 221(2) of CrPC (when one of offence is proved in series of acts but offence was not charged), there is no bar to held proof of such charge of offence u/s 468 IPC against A2 Kuldeep Kumar Agarwal, particularly charge u/s 120B r/w sec. 468 IPC was already framed against accused Kuldeep Kumar Agarwal. In K Prema S Rao Vs Yadla Srinivasa Rao & others (AIR 2007 SC 11), by invoking the provisions of section 221(2) CrPC the accused was held guilty u/s 306 IPC despite there was acquittal u/s 304B IPC but conviction u/s 498A IPC.

14.1 Now charge, taken is, in respect of transaction of buying New CNG Mohindra Bus bearing registration number DL 1VA 2769 by Devender Kumar (against loan of Rs.4.20 lakhs from Canara Bank, Paharganj Branch, New Delhi­ A/c no.7/02) from M/s Skylines Automobiles and accused Ravi Bansal stood guarantor. It is also being considered, keeping in view the conclusion in paragraph 11.4 above.

14.2 Sh. Raj Kamal, Ld. Public Prosecutor for State contends that the series of circumstances are speaking a lot that one after another episode of applying for loan and after securing the loan, there is tendency to siphon off the amount or to divert the funds, [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 111 of 129] but as a result the public amount is being cheated, which is their prime intention. Accused Kuldeep Kumar Agarwal now introduced another aspect by bringing his employee Devender Kumar into the picture, the loan for Rs.4.20 lakhs was applied through Devender Kumar by getting opened an another current account under the garb of proprietorship of M/s Durga Trading Company and during investigation it also surfaced that actual control & user of the vehicle/CNG Mohindra Bus was accused Kuldeep Kumar Agarwal vis a vis it is the same Devender Kumar, who withdrew/encashed certain cheque amounts from the OCC/OD accounts maintained of Kuldeep Kumar Agarwal. This was done under the conspiracy to cheat the bank by one way or the other and to share the amounts. 14.3.1 Whereas Ld. Counsel Sh. Amit Khanna, Advocate for Kuldeep Kumar Agarwal requests that the submissions on behalf of State on this count are not only out of context but also contrary to the record. The said Devender Kumar opened the current account with valid documents as appearing from record, the Bank was satisfied, then account number was allotted. Devender Kumar has shown him businessman. The said Devender Kumar had applied for loan, even as per own documents of prosecution and it was dealt by the Bank of its own, the other witnesses PW­2 and PW­3 are the officers, they were processing the application, there was no fault or incriminating is appearing with regard to processing of that application. After the satisfaction of Bank, the loan was [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 112 of 129] sanctioned and demand draft was directly issued in the name of M/s Skyline Automobiles, which was discounted by the said vendor vis a vis the vehicle was delivered to the buyer and as per statement of PW4, the vehicle could be delivered to the authorised representative of the buyer and this is not offence. Lastly, there is no evidence that Devender Kumar was employee of accused Kuldeep Kumar Agarwal, even the star witnesses of Bank also say that they came to know from CBI that Devender Kumar is employee of Kuldeep Kumar Agarwal, it is just hearsay having no evidence value. The said Devender Kumar was cited a prosecution witness in the list of witness, he expired before his appearance in the court and had he been in the witness box, the plea of State would have been dispelled that he was employee of Kuldeep Kumar Agarwal. On the basis of evidence and documentary record in respect of CNG Bus DL1VA 2769, the said Devender Kumar was a bona­fide purchaser and for want of any incriminating evidence, it does not prove any charge against Kuldeep Kumar Agarwal.

14.3.2 Sh. J.C. Mishra, Advocate for accused Ravi Bansal requests that accused Ravi Bansal stood guarantor for Devender Kumar but merely standing guarantor, it does not make out any offence against him. By reading entire evidence, no where any incriminating evidence is emerging against accused A1 Ravi Kumar either for substantial offences or for conspiracy. In fact, [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 113 of 129] PW29/IO during his cross­examination on behalf of accused Ravi Bansal, IO/PW29 confirms the fact of Devember Kumar was employee of accused Kuldeep Kumar Agarwal in the charge­sheet as well as in the statement u/s 164 CrPC of Devender Kumar. Where is scope for conspiracy against accused Ravi Bansal, he is being dragged unnecessarily. The transaction was between Bank/lender and applicant Devender Kumar/borrower.

14.3.3 Now, Ld Public Prosecutor contends that PW29/IO was cross examined on behalf of accused Ravi Bansal and it was put to IO, that Devender Kumar was employee of Kuldeep Kumar on monthly salary of Rs.2000/­, IO confirms these facts. By reading entire statement (viz. examination in chief and cross examination) together as one narration, the facts stand established that Devender Kumar was employee of accused A­2 Kuldeep Kumar Agarwal. There was no objection raised on behalf of accused Kuldeep Kumar Agarwal, when IO was being asked on these facts on behalf of accused A­1 Ravi Bansal.

14.3.4. However, Ld defence counsel Shri Amit Khanna, Advocate has reservations to this plea, firstly it has not been proved by positive evidence by prosecution, secondly bald suggestion that too on behalf of other accused Ravi Bansal cannot be read or treated prosecution evidence against accused Kuldeep Kumar Agrwal, thirdly statement u/s 164 CrPC has not been [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 114 of 129] proved, fourthly there is no corroboration about employment, nature of duties. Fifthly, it would not matter if objection was or was not raised, since when suggestion was put to witness, the party putting the question put its case and no such case/suggestion was put by accused A­2 Kuldeep Kumar Agarwal to IO and the suggestion given on behalf of accused A­1 Ravi Bansal cannot be read against accused Kuldeep Kumar Agarwal vis a vis IO has also not gathered any such evidence, which is coming out in what context such other questions were asked, that PW29 replies in his cross examination­ "to the suggestion that at that time Shri Devender Kumar was an employee of accused Kuldeep Kumar Agarwal, I state that Shri Devender Kumar was associate with accused Kuldeep Agarwal. To the suggestion that I am deposing falsely in this regard or that it is mentioned in the charge­sheet Shri Devender Kumar was an employee of accused Kuldeep Agarwal, I state that I had mentioned Shri Devender Kumar to be employee of Kuldeep Kumar, since he was associated with accused Kuldeep Agarwal and he had gone to the Bank for having loan alongwith accused Kuldeep Agarwal".

There is neither any evidence nor corroboration nor it can be presumed that Devender Kumar was employee of Kuldeep Kumar Agarwal.

14.4 (Findings with reasoning on transaction of CNG Mohindra Bus)­ The rival submissions are considered. The relevant witnesses are PW­17 Sh. Vinod Kumar Sharma, UDC, MLO, Headquarter, Transport Department, Govt. of NCT Delhi, PW­4 [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 115 of 129] Rajeev Gupta, Manager M/s Skyline Automobiles, PW­2 B.V Nayak, Sr. Manager, Canara Bank and PW­3 Sh. M.V. Ramana Rao, Officer Canara Bank and PW­11 Dr. Ravindera Sharma, Handwriting Expert vis a vis the corresponding relevant documents are proforma invoice (Ex.PW­2/A­54), original demand draft (Ex. PW­2/A­57), covering letter dated 9.9.2002 (Ex. PW­20/DH, from Canara Bank to M/s Skyline Automobiles accompanying bank draft of Rs.4,95,070/­), formal receipt no. 3382 dated 9.9.2002 by M/s Skyline Automobiles in respect of receipt of demand draft (Ex. PW­ 4/A), another formal receipt no. 33483 dated 9.9.2002 for Rs.1,500/­ (Ex. PW­4/B), delivery of vehicle receipt dated 9.9.2002 (Ex. PW­11/11), sale certificate dated 9.9.2002 issued by M/s Skyline Automobiles and consequent thereto the vehicle was registered under registration no. DL 1VA 2769 registration certificate (Ex. PW­4/C, in respect of registration of CNG Bus/vehicle DL 1VA 2769 with endorsement HP/lease agreement with Canara Bank) and Form­20 being application for registration of motor vehicle alongwith original Form No.­21,.

When Devender Kumar (since deceased, his name was in the list of prosecution witnesses and he died prior to his appearance in the witness box) applied for loan from Canara Bank and executed the documents (as detailed in paragraph no. 8.3E), nothing has surfaced during the investigation as well as in the expert opinion (Ex. PW­11/40) about any manipulation or forgery [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 116 of 129] or cheating. The registration of vehicle no. DL 1VA 2769 was carried in the sequence of usual events inclusive of correspondence between Canara Bank Paharganj Branch, M/s Skyline Automobiles and Regional Transport Office. It is a fact that accused Ravi Bansal stood surety for borrower Devender Kumar but it does not cull out any incriminating evidence against any of them with regard to transaction of buying the Mahindra CNG bus. It is also appearing from statement of PW­17 that he was not factually dealing with the record of registration of vehicle DL 1VA 2769 but there is nothing wrong with the registration of vehicle being part of record Ex. PW­17/C. Witness PW­4 while dealing with the sale of vehicle/CNG Mahindra bus (of registration no. DL 1VA 2769) did not find any inducement or manipulation with regard to the record. Therefore, because of Ravi Bansal is surety for Devender Kumar would not suggest that there is inducement to Canara Bank or cheating on this count. It is also matter of record of CNG Bus delivery receipt (Ex. PW­11/11) was prepared when CNG bus was to be delivered to Devender Kumar, name of Devender Kumar & address is written in the delivery receipt but it was actually received by Kuldeep Kumar Agarwal, his questioned signature Q­33 is appearing in the delivery receipt (it is confirmed in the expert report Ex.PW­11/40 that Q­33 is signature of Kuldeep Kumar Agarwal) and as per statement of PW­4 Rajeev Gupta, the delivery of vehicle can be to the authorized representative. By [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 117 of 129] reconciling this fact, it does not make out offence of cheating against Kuldeep Kumar Agarwal just because he had received the physical delivery of Mahindra Bus on behalf of Devender Kumar. Lastly, the statement of star witnesses particularly of Bank officers, they were never knowing the status of Devender Kumar but heard from CBI (after registration of the case) that Devender Kumar is employee of Kuldeep Kumar Agarwal, it is hearsay fact during investigation after registration of case. However, there is no proof of this fact by any evidence to the effect that Devender Kumar was actually employee of Kuldeep Kumar Agarwal nor other convincing evidence of status Devender Kumar was having as an employee or his nature of duties or he was not doing business of M/s Durga Trading Company. Even IO/PW29 explains facts mentioned by him in the charge­sheet as well as in evidence that Devender Kumar was associate of Kuldeep Kumar (its relevant text referred by ld defence counsel is already reproduced in last paragraph), he does not conclude that Devender Kumar was actually employee of accused A­2 Kuldeep Kumar Agarwal. So far suggestions given to PW29/IO on behalf of accused A­1 Ravi Bansal is concerned, it could be the case of that accused but that suggestion cannot be treated/deemed to treated as put by accused A­2 Kuldeep Kumar Agarwal, particularly by reading sections 137 & 138 (Examination­in­chief, cross­examination and re­ examination) of the Indian Evidence Act 1872, that cross­ [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 118 of 129] examination will be by adverse party. The onus to prove was on prosecution that Devender Kumar was employee of accused A­1 Kuldeep Kumar Agarwal, that could be by examining the witness and it cannot be inferred as proved from the cross­examination of IO by accused Ravi Kumar. The case put up by accused Ravi Kumar for him to IO cannot be construed for accused Kuldeep Kumar Agarwal, even if it was not objected. Therefore, it is held that charge with regard to cheating or conspiracy of transaction of buying of Mahindra CNG Mini Bus by Devender Kumar could not have been proved against accused A2 Kuldeep Kumar Agarwal and accused A1 Ravi Bansal.

15.1 Now charge of other transactions OCC/OD facilities to Kuldeep Kumar Agarwal (against secured loan from Canara Bank, Paharganj Branch, New Delhi) against stocks, book debt and collateral securities of immovable properties & Guarantee of Ravi Bansal of M/s Shree Durga Road Lines is being considered. In the light of paragraph no.11.4 above­ 15.2 Sh. Raj Kamal, Ld. Public Prosecutor submits that accused Kuldeep Kumar Agarwal opened bank account and took the OCC/OD facility, he had applied for facility of Rs. 30 lakh but it was sanctioned upto Rs.24 lakhs for expansion of business, since accused Kuldeep Kumar Agarwal was doing business of shellac and hardware. The other accused Ravi Bansal stood guarantor as a proprietor of M/s Shree Durga Roadline. In fact, from the very inception, it had been in the mind of accused persons to open the [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 119 of 129] account but the loan will not be used for expansion of business, the actual intent of accused persons was to siphon of the money and to cheat the public Bank, holding public funds and accused also succeeded in their in design. It was an huge amount and for the purposes the facility was given, its end use (for expansion of business) was not applied but the amount was withdrawn by accused Kuldeep Kumar Agarwal, his employee Devender Kumar, accused Ravi Bansal and others, that too in very short span of period of 12 days. Since the loan/facility was applied and obtained under the pretext of expansion of business but actually the amount was withdrawn within a very short span not only upto the sanctioned limit of Rs. 24 lakhs but much beyond the same, funds were not utilized for business purposes. It was done under a design and planning, which is emerging not from the transactions pertaining to account but also against rules, those funds were also siphoned by the accused persons in conspiracy and connivance of each other. The prosecution has able to establish the case against the accused persons.

15.3.1 Whereas Sh. Amit Khanna, Advocate for A­2 Kuldeep Kumar Agarwal submits that the prosecution has miserably failed to prove the charge, there is no evidence against the accused as well as the circumstances appearing are also not suggesting so. The evidence of bank officers/witnesses (particularly PW­2, PW­3, [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 120 of 129] PW­6 and PW­20) is abundantly clear that bank account was opened and OCC/OD was extended, the verification of documents as well as business premises/godown was inspected and guarantor's status was also verified. The loan facility was against stock and book debt as well as collateral security of three immovable properties, those properties were also got verified and also valued by the assessor and valuer at the instance of the Bank. There is verification of record as well as other material by PW­2 and PW­3, no fault was found from any corner; appraisal of stock was also carried by them, there was no fault; even there is internal and statutory audit of the Bank, nothing was discovered to be construed that anything was contrary to the procedure or law or banking practice. The accused cannot be fastened with any liability. On perusal of statements the star witnesses/officers of Bank, it will also be discovered that even processing of record or cheques etc. was handled by them as per banking practice. There is also a banking practice to have appraisal of stock etc. of the borrower and that verification was also carried by the Bank, no incriminating evidence has surfaced against the accused. The investigating agency or the evidence recorded during trial is not proving or making any inference that the amount sanctioned was used for other than for business purposes. The business transactions are carried with the known persons or acquaintances in the market and in the commercial world, however, the [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 121 of 129] permissible payment/withdrawal by cash or cheques etc. made are being construed by the investigating agency or by the State as if the same were not pertaining to trade and commerce. There is no base at all to make such inferences, in fact it was required to prove beyond doubt. In case, the cheque drawn or presented were beyond the sanctioned limit, the Bank could have declined to honour it, it is admitted case of prosecution witnesses/Bank Officers (PW2, PW3) that they could stop payment/decline payment of excess limit. Why it was not done by them? The accused is being made escape­goat.

Otherwise, just for the sake of the arguments, if the amount is not utilized by a borrower for the purposes it was lent, at the most it will be breach of terms and condition of agreement, it cannot be presumed a criminal act nor it amounts to cheating, forgery or forgery for the purposes of cheating nor it falls in the category of conspiracy. If at all, in case of breach of terms of agreement, it could be the best case of dispute of civil nature and nothing beyond but the prosecuting agency during investigation and also the State is projecting as if there is commission of offences, that too without proof of means rea or necessary requirement of for proof of charges.

As a matter of fact accused Kuldeep Kumar Agarwal is a victim customer at the hand of the Bank and also accused made by the investigating agency, despite knowing that no offence has [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 122 of 129] been committed by him; even his godown with stock­in­trade was seized/sealed, that stock was perishable in nature and he was not allowed to access it, he suffered losses at the hands of the Bank. He had filed writ petition, it was directed rule­nisi. The accused Kuldeep Kumar Agarwal a few days prior to the sealing of the godown had requested the Bank for some time to make payment of the installment due at that time, without bothering it the premises was sealed, he was put to financial losses besides his social repute and root in the society. In addition, the immovable properties, which were in collateral security, have been sold and more than the amount accrued was realized by selling all these three properties and entire amounts stand cleared, some excess amount was also there which is with the Bank, this is apparent from the statement of DW­1 Sh. Jatinder Singh Ahuja, Sr. Manager Canara Bank, who had occasioned to deal with the accounts of M/s H.R. Industries. The statement of bank have also been received (from Connaught Place Office and Paharganj Branch) and the total realized amount was Rs.67.44 lakhs. The accused had not caused any losses to the Bank or any losses to the public exchequer. The prosecution or the investigating agency is projecting as if the accused persons and other were sitting together, they made out a strategy and then it was implemented, there is no proof of any such facts, there is no iota of evidence and it is all imaginary. There were encashment of six cheques, which [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 123 of 129] have been alleged cheating under conspiracy with A3 Gopal Prasad by prosecution, however, those cheques were encashed by Bank staff Ms UK Kumari and PW3 in their routine banking as A3 Gopal Prasad on leave on 27.1.2003 and 14.2.2003 as per evidence surfaced before the court. Devender Kumar was not employee of accused Kuldeep Kumar Agarwal. Since the charges have not been proved, he deserves acquittal of these charges.

15.3.2 Sh. J.C Mishra, Advocate, for accused Ravi Bansal, (while having consensus to majority of reasons in the submissions on behalf of accused Kuldeep Kumar Agarwal), supplements that what has been discussed on behalf of accused Kuldeep Kumar Agarwal, the case of Ravi Bansal is on much better footing. There is no proof of conspiracy. The accused Ravi Bansal/ M/s Shree Durga Roadline stood guarantor for accused Kuldeep Kumar Agarwal/M/s H.R. Industries, he has not done any illegality particularly the record has been verified by the Bank and its officers/PWs, they were satisfied from the record of accused Kuldeep Kumar Agarwal vis a vis inspection or verification of premises, godown or other allied affairs of the business. There is nothing appearing on record that anything was observed against accused Ravi Bansal in the documentation, internal audit or other audits of the Bank. Since the accused Ravi Bansal is doing his own business, in case he has transactions with various persons or [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 124 of 129] establishment during the day to day functioning, it is not a crime. It is also admitted case of prosecution witnesses/bank officers that they not know the nature of transaction of two cheques (Ex.PW2/A19 and ExPW2/A20), in favour of M/s Durga Roadline, could it presumed that it were not of commercial transaction. It cannot be presumed, when the same were pertaining to trade and not of saving bank account. No evidence of conspiracy or cheating or forgery can be traced against accused Ravi Bansal in the entire record, since it does not exist.

15.4 (Findings with reasoning such transactions)­ The rival submissions on behalf of the State on the one side and accused Kuldeep Kumar Agarwal & Ravi Bansal on the other side are considered, keeping in view the ingredients of relevant offences enumerated in paragraph no. 9 above as well as evidence on record. Taking the stock of all these material, no offence has been proved against accused Kuldeep Kumar Agarwal and accused Ravi Bansal in respect of operation of this account OCC/transactions for the following reasons:­

(i) Accused Kuldeep Kumar Agarwal had opened an account no. 7408 on 26.2.2002 with the Canara Bank, Paharganj Branch and during the currency of that account, he opted for OCC/OD facility on his application on 28.8.2002. It is an undisputed fact.

(ii) M/s H.R. Industries/accused Kuldeep Kumar Agarwal had executed certain document for those formalities and when OCC/OD facility was availed on 13.9.2012, a fresh account no.

[C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 125 of 129] 58126 was opened and accused M/s Shree Durga Roadline/Ravi Bansal stood co­obligant/guarantor for accused Kuldeep Kumar Agarwal.

(iii) When the accounts (i) and (ii) referred above were opened, certain documents were executed by them, the same are undisputed, which are already referred in paragraph no. 8.3A. For those documents, accused Ravi Bansal has no stand of illiteracy but he took the stand at later part of trial.

(iv) The OCC/OD facility was of Rs.24 lakh sanctioned on 12.9.2002 and immediately, accused Kuldeep Kumar/Proprietor M/s H.R. Industries issued cheque of Rs. 5 lakhs on 14.9.2002 in favour of M/s Shree Durga Roadline (Ex. PW­2/A­19); another cheque dated 25.9.2002 of Rs.2,85,000/­ (Ex. PW­2/A­20) was also issued in favour of M/s Shree Durga Roadline. There are six more cheques viz. Ex. PW­2/A­23 for Rs.2,75,000/­ in favour of Vivek Kumar Bansal, cheque dated 19.9.2002 for Rs. 2,14,000/­ Ex. PW­2/A­26 in favour of Raj Kumar Bagla, cheque dated 19.9.2002 for Rs.2,62,000/­ Ex. PW­2/A­27 in favour of Ram Kishore, cheque dated 19.9.2002 for Rs.2,50,000/­ in favour of Mahinder Saroha Ex. PW­2/A­35, cheque dated 19.9.2002 for Rs. 2 lakh in favour of Devender Kumar Ex. PW­2/A­29 and cheque dated 21.9.2002 for Rs.2,58,000/­ Ex. PW­2/A­30 in favour of Devender. There is no proof that those cheques were not for any business transaction. It is already held in paragraph 14.4 that there is no proof of fact that Devender Kumar was employee of Kuldeep Kumar Agarwal, thus issue of cheque in favour cannot be presumed that Kuldeep Kumar Agarwal had issued/encashed it as employer of Devender Kumar or accused had applied his dominance over Devender Kumar for withdrawal of amount through him.

(v) As appearing that the Bank had issued demand notices to the accused Kuldeep Kumar Agarwal in respect of outstanding amount [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 126 of 129] as well as legal notices in respect of non­payment of the amount from time to time.

(vi) The premises/godown of the accused Kuldeep Kumar Agarwal was also sealed after notice to him, it remained in possession of the Bank after its seal by the Bank officers.

(vii) The OCC/OD facility was against the trade­in­stock, books debtors and accused Kuldeep Kumar Agarwal was doing the business of shellac and hardware, although a Bank officer/witness had stated that he was not aware of about the material/stock lying in the godown but by reading the totality of circumstances of statement of Bank witnesses, the stock in trade in godown was sealed because there were goods/stock­in­trade in the godown otherwise there was no reason to seal the godown.

(viii) There were proceedings before Debt Recovery Tribunal Delhi and during the pending of this case, on 7.12.2012 Sh. N. Balachandran, Branch Manager, Canara Bank, Paharganj Branch, New Delhi appeared pursuant to application of 18.5.2012 for release of original title deeds in respect of property no. 6 Pocket­ 21, Block­G, Sector­7, Rohini, property bearing no. 30, Pocket­II, Sector­7, First Floor and 30, Pocket­II, Sector­7, Ground Floor, all belonging to accused Kuldeep Kumar Agarwal because the same were mortgaged by him in connection with the loan to M/s H.R. Industries vis a vis the same were sold in auction by DRT, Delhi to Sh. Om Prakash Arora after complete payment and the sale confirmation was given by DRT. Statement of Sh. N. Balachandran was recorded by Ld. Predecessor on 7.12.2012 (as CW­1). The Bank was left with no claim against properties and the documents were to be released to the buyer Om Prakash Arora.

On 21.2.2013 statement of Kuldeep Kumar Agarwal and of Gopal Prasad (without oath) were recorded that they have no objection to release the document, its certified copies (Ex. P­1 to Ex. P­21), were retained in lieu of originals seized by memo dated 2.8.2003. A similar statement of accused Ravi Bansal was [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 127 of 129] recorded on 22.3.2013. Consequently, by order dated 11.4.2013, Ld. Predecessor allowed the application of 18.5.2012 of Canara Bank alongwith application dated 24.11.2012 of buyer Om Prakash, while releasing the original documents and by taking their certified copies on record in lieu of the originals.

(ix) On the one side accused A2 Kuldeep Kumar Agarwal issued many cheques in favour of many payees or withdrawal too during short period, however, the prosecution/bank witness deposed that there is no such bar to make withdrawal by way of cash or otherwise nor there was stop of payment of any cheque, when it had exceeded the limit, the cheque was dealt even bank witnesses and other officer Ms. U K Kumari.

(x) There was no flaw or incriminating evidence was found in respect of documents furnished by accused Kuldeep Kumar Agarwal and accused Ravi Bansal nor other material collected to infer the transactions were of cheating or forgery.

(xi) It is also appearing that accused Kuldeep Kumar Agarwal had issued cheque beyond limit of sanction vis a vis it was also discounted by Bank. It has not been proved funds were not used for end purposes of expansion of business,. Otherwise, it appears to be case of grievances of use of funds for purposes other than for which it was sanctioned, it could be subject to verification before clearance or appraisal of stocks within the domain of such sanctions, nonetheless it becomes case of breach of terms and conditions of agreements executed. Simultaneously the bank witnesses also say that they do not know the nature of transactions in respect of cheque issues, then how end use of funds can be disputed.

16. Therefore, in terms of findings in paragraph no.11 accused A3 Gopal Prasad is discharged. As per findings on other transactions, [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 128 of 129] particularly as concluded in paragraphs 12.4 and 13.5 accused A2 Kuldeep Kumar Agarwal and accused A1 Ravi Bansal are held guilty for proof of charges viz. (i) u/ss 120­B (2) r/w 420, 468, 471 r/w section 468 IPC & 120B(1) r/w sec.467 IPC (ii) charge of substantial offences u/ss 420, 467, 468, 471 r/w 468 IPC against Ravi Bansal and (iii) u/ss 120­B (2) r/w 420, 468, 471 r/w section 468 IPC & 120B(1) r/w sec.467 IPC (iv) charge of substantial offences u/ss 420, 468, 471 r/w 468 IPC against accused Kuldeep Kumar Agarwal stand proved. Both are held guilty accordingly.

17. The judgment concludes. Digitally signed INDERJEET by INDERJEET SINGH SINGH Date: 2019.09.27 Announced in open court today (Inder Jeet Singh) 16:27:52 +0530 Friday, Asvina 5 Saka 1941 Special Judge (PC Act) / CBI­17, Delhi/ 27.9.2019 [C.C. No.24/12 State Vs. Ravi Bansal & 2 Ors. Page 129 of 129]