Delhi District Court
Cbi vs . 1. Rajesh Kohli, on 7 December, 2012
1
CBI case . No.23/11
IN THE COURT OF SH. N. K. KAUSHIK
SPECIAL JUDGE, PC ACT, CBI,
DWARKA COURTS, NEW DELHI
CBI Case No. 23/11
Date of Institution: 27.01.2003
Date on which Judgment Pronounced: 20.11.2012
Decision: Conviction
CBI case no. 23/11
RC no. 1(E)/2001/EOWI/ New Delhi
In the matter of:
CBI versus. 1. Rajesh Kohli,
The then Divisional Manager,
National Insurance Ltd.,
DOX, New Delhi.
R/o 187, Pragati Apartment,
Club Road, Paschim Vihar,
New Delhi.
2. Ajay Sharma,
S/o Sh. N.C. Sharma,
R/o 602, Bhagirath Jangdid
Complex, Mira Road, Thane,
Mumbai.
3. Arvind Kumar Sharma,
S/o Late Sh. Shambhu
Nath Sharma,
R/o GH2/122B,
Ankur Apartments,
Paschim Vihar, New Delhi63.
4. Deepak Jain,
S/o Late Sh. Bhagat Singh,
R/o 91, Nagin Lake
Apartment, Outer Ringroad,
New Delhi.
CBI vs. Rajesh Kohli & Ors. 1 of 118 pages
2
CBI case . No.23/11
5. Vinod Kumar Bhutani,
The then Assistant
Administrative Officer,
in National Insurance Ltd.
DOX, New Delhi.
(Now posted as
Administrative Officer DOI in
National Insurance Ltd, Delhi.)
S/o Sh. Sukh Dayal Bhutani,
R/o AGI, Shiva Enclave,
Opp. Ordinance Depot,
Rohtak Road, Delhi.
.............Accused persons
JUDGMENT
1. This is a corruption case under Prevention of Corruption Act, 1988, registered by the CBI, as against the accused persons and is relating to the fraudulent insurance claim wherein consignor and transporter were nonexistent at the given address and which was preferred, processed and passed by the accused persons, in pursuance to a well knit criminal conspiracy.
2. The case set up by the prosecution is that, marine policy no. 21451915/97 for Rs.4,23,000/, was issued on 22.01.98. As per this policy, one box containing floppy and CD drives was dispatched from Calcutta CBI vs. Rajesh Kohli & Ors. 2 of 118 pages 3 CBI case . No.23/11 to Delhi, vide GR no. 02110, dt. 27.01.98. That the said premium was issued under the agency code 10037.
3. It is further alleged that in this regard, Tewari, an agent was contacted, who disclosed that he had nothing to do with the said insurance and also that he used to give his commission on insurances to accused, Rajesh Kohli, the then Divisional Manager.
4. That the insured, vide their letter, dt. 09.02.98, intimated the loss to Divisional Office, which was received by accused Rajesh Kohli, the then Divisional Manager, who appointed accused Deepak Jain for survey and accordingly, intimated the surveyor, vide his letter dt. 09.02.98.
5. It is further alleged that accused Rajesh Kohli, the then Divisional Manager, also wrote a letter to the Insured, M/s G.S. Financial and Computer Consultancy, asking for the documents, in respect of the claim. That the goods were purportedly sent CBI vs. Rajesh Kohli & Ors. 3 of 118 pages 4 CBI case . No.23/11 by M/s Galaxy Traders, Calcutta.
6. That in this regard, letter was sent to Vigilance Officer at Calcutta Regional Office, who informed that no such firm existed at the given address. That the goods were purportedly sent through Delhi CalcuttaBombay Road Carrier. That the address of the carrier was visited but no carrier by this name could be found. That, however, there was one new Pawan Gaddi Transport Co, who expressed their ignorance about any such transporter i.e. Delhi CalcuttaBombay Road Carrier.
7. It is further alleged that in this regard, Insured i.e. M/s G.S. Financial and Computer Consultancy was also contacted. That accused Ajay Sharma, Proprietor of the said firm, disclosed that they were doing only consultancy job during those days and that he could not tell anything about the said transaction. That he was having bank account with Bank of India, Parliament Street, New Delhi.
8. It is further alleged that accused Deepak Jain, CBI vs. Rajesh Kohli & Ors. 4 of 118 pages 5 CBI case . No.23/11 Surveyor disclosed that he had inspected the damaged material at the premises of the Insured.
9. It is further alleged that the claim was recommended by Sh. Vinod Lal, Sr. Assistant and accused V.K. Bhutani, the then Assistant Administrative Officer, which was approved by accused Rajesh Kumar Kohli, the then Divisional Manager, for Rs.1,73,439/.
10. It is further alleged that M/s Pooja International was appointed as recovery agent, who deposited Rs. 17,000/, as recovery, on 17.09.98. That the above claim has been fabricated by the Insured, in connivance with accused Rajesh Kohli, Arvind Kumar Sharma of M/s Pooja International and others. Hence, Rajesh Kohli, the then Divisional Manager had approved the fake claim.
11. After the matter was investigated, the case of the prosecution, in brief, is that during the year 19971998, at New Delhi and other places, accused persons were party to a criminal conspiracy by CBI vs. Rajesh Kohli & Ors. 5 of 118 pages 6 CBI case . No.23/11 having agreed to do an illegal act i.e. to cheat National Insurance Company Ltd., Divisional OfficeX, New Delhi, by fraudulently inducing it to sanction claim insurance in the name of M/s G. S. Financial and Computer Consultancy, A22, Krishna Nagar, Delhi, a nonexisting firm, under the proprietorship of Ajay Sharma, the accused, to the extent of Rs.1,73,439/ on the basis of forged/bogus/false documents i.e. invoice, GR, Survey Report etc.
12. Further, accused Ajay Sharma, Proprietor of M/s G. S. Financial and Computer Consultancy, in furtherance of the aforesaid criminal conspiracy, obtained Marine Policy No.21451915/97 for sending a consignment of Computer and CD Floppies and Computer Consultancy through GR No. 02110 of M/s Delhi Calcutta Bombay Road Carriers, Delhi and accused, Ajay Sharma, Proprietor of M/s G. S. Financial and Computer Consultancy, intimated the NIC DOX, New Delhi, about the loss of the consignment and that accused Rajesh Kohli, deputed accused Deepak Jain of M/s CBI vs. Rajesh Kohli & Ors. 6 of 118 pages 7 CBI case . No.23/11 Deepak Jain and Associates, as Surveyor for survey and that accused Deepak Jain submitted the bogus and forged report without surveying the consignments, accused Arvind Kumar Sharma deposited fake recovery and accused V. K. Bhutani, the then Assistant Administrative Officer, processed the claim proposal of M/s G.S. Financial & Computer Consultancy and accused Rajesh Kumar Kohli, sanctioned the claim of Rs.1,73,439/ in favour of M/s G. S. Financial and Computer Consultancy and the accused Ajay Sharma deposited the claim amount in A/c No.: 11600 of M/s G. S. Financial and Computer Consultancy. All accused persons, thus, are alleged to have committed offences punishable, under section 120(B) read with 420, 467, 468, 471, IPC and under section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988.
13. Further, during the aforesaid period at Delhi and other places accused Rajesh Kohli, being a public servant in the capacity of Divisional Manager, NIC Ltd., Divisional OfficeX, New Delhi, by use of CBI vs. Rajesh Kohli & Ors. 7 of 118 pages 8 CBI case . No.23/11 illegal means and abusing his official position, induced NIC, DOX and sanctioned claim amount of Rs.1,73,439/ in favour of M/s G.S. Financial and Computer Consultancy, on the basis of false, forged and bogus documents and thereby enabled the accused Ajay Sharma, Proprietor of M/s G.S. Financial and Computer Consultancy to obtain pecuniary advantage to the tune of Rs.1,73,439/ and corresponding loss to the NIC Ltd., Divisional OfficeX, New Delhi. Accused Rajesh Kohli, thus, is also alleged to have committed an offence, punishable under section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988.
14. Further, during the aforesaid period at Delhi and other places, accused V.K. Bhutani, being a public servant in the capacity of Assistant Administrative Officer, NIC Ltd., Divisional OfficeX, New Delhi, by use of illegal means and abusing his official position, induced and persuaded to forward and processed the claim proposal on the basis of false, forged and bogus documents for grant of claim amount of Rs.1,73,439/ in favour of M/s G.S. CBI vs. Rajesh Kohli & Ors. 8 of 118 pages 9 CBI case . No.23/11 Financial and Computer Consultancy, Delhi, and upon his recommendation, the claim was sanctioned and thereby enabled the accused Ajay Sharma, Proprietor of M/s G.S. Financial and Computer Consultancy to obtain pecuniary advantage to the tune of Rs.1,73,439/ and corresponding loss to the NIC Ltd., Divisional OfficeX, New Delhi. Accused V.K. Bhutani, thus, is also alleged to have committed an offence, punishable under section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988.
15. Further, during the aforesaid period at Delhi and other places, accused Deepak Jain was appointed as Surveyor being the proprietor of M/s Deepak Jain and Associates and submitted a false and forged report before NIC DOX, New Delhi, without carrying out the survey regarding the claim of M/s G. S. Financial and Computer Consultancy, Delhi. Accused Deepak Jain, thus, is alleged to have committed an offence punishable under section 468 IPC.
CBI vs. Rajesh Kohli & Ors. 9 of 118 pages 10 CBI case . No.23/11
16. Further, during the aforesaid period at Delhi and other places, accused Ajay Sharma, dishonestly induced DOX in the sanction of insurance claim of Rs.1,73,439/ in favour of M/s G. S. Financial and Computer Consultancy, Delhi, on the basis of false, bogus & forged documents i.e. invoice, survey report, G. R. etc. and received a cheque of claim amount, which was credited in A/C No. 11600 of M/s G. S. Financial and Computer Consultancy, Delhi, of which he was Proprietor. Accused Ajay Sharma, thus, is also alleged to have committed an offence punishable, under section 420 IPC.
17. Further, during the aforesaid period at Delhi and other places, accused Ajay Sharma fraudulently used false, forged & bogus documents i.e. invoice, G. R. Survey Report, etc. as genuine for the purpose of cheating knowing fully well that those documents were forged, false & bogus. Accused, thus, is also alleged to have committed an offence, punishable under section 471 read with 467 & 468 IPC.
CBI vs. Rajesh Kohli & Ors. 10 of 118 pages 11 CBI case . No.23/11
18. Further, during the aforesaid period at Delhi and other places, accused Arvind Kumar Sharma, was appointed as Recovery Agent, being the proprietor M/s Pooja International Ltd. and submitted false and forged recovery report to NIC Ltd. DOX, New Delhi in the claim of M/s G.S. Financial & Computer Consultancy, Delhi, without recovering any amount. Accused, thus, is alleged to have committed an offence, punishable under section 468 IPC.
19. Primafacie, offences under section 120B read with sections 420, 467, 468, 471 IPC and section 13(2) read with section 13(1)(d) of Prevention of Corruption Act, 1988 against all the accused persons and substantive offences under section 13(2) read with section 13(1)(d) Prevention of Corruption Act, 1988 against accused Rajesh Kumar Kohli & Vinod Kumar Bhutani, under sections 420 and 471 read with sections 467 & 468 IPC against accused Ajay Kumar Sharma, under section 468 IPC against accused persons namely, Arvind Kumar Sharma and Deepak Jain were made out. CBI vs. Rajesh Kohli & Ors. 11 of 118 pages 12 CBI case . No.23/11
20. Charge, accordingly, was framed against the accused persons, to which, they pleaded not guilty and claimed trial.
21. The prosecution, in order to substantiate its claim and contentions, examined 23 witnesses, in all.
22. Thereafter, the accused persons were examined under section 313 Cr. P.C.
23. Defence has also produced three witnesses, including accused persons Rajesh Kohli and V.K. Bhutani, in support of their contentions.
24. The prosecution, has contended that the case of the prosecution has been duly proved, in view of the material that has appeared on record. That all the prosecution witnesses have supported and proved the prosecution version beyond any pale of doubt.
25. On behalf of the defence, on the other hand, it has been stated that the prosecution has failed to prove CBI vs. Rajesh Kohli & Ors. 12 of 118 pages 13 CBI case . No.23/11 its case.
26. The defence, on the other hand preferred to file written submissions.
27. At the very outset, it is to be noted that there is no dispute over the propositions of law enunciated in the case law, cited by the defence in their submissions. However, in view of the material proved and obtaining on record, the same do not help the defence at all.
28. I have carefully gone through the entire relevant material appearing on record and have given considered thought to the same as well as to the arguments that have been advanced, at the bar. My findings are as under:
29. PW1, Sh. A.K. Seth was the Vigilance Officer, who was posted in Vigilance Department of National Insurance Company during the period from January, 1992 to March, 2003.
CBI vs. Rajesh Kohli & Ors. 13 of 118 pages 14 CBI case . No.23/11
30. PW1 has deposed that he had conducted enquiry in this case, on the basis of source information, which was collected, in respect of fraudulent marine claims being passed in DOX. That he was assisted by Mr. A.L. Gambhir and Mr. Anil Kumar Tiwari during investigation. That after completing investigation, he along with said Mr. A.L. Gambhir and Mr. Anil Kumar Tiwari, had prepared the report and sent it to CVO, Head Office, Vigilance Department, Calcutta.
31. PW1 has proved that the said investigation report, consisting of five pages, including the claim of M/s G.S. Financial and Computer Consultancy as Ex.PW1/A, having his signatures at point A and that of Mr. A.K. Tiwari at pt. B, which he duly identified.
32. PW1 has further proved the letter, dated 05.09.2002, which is Ex.PW1/B and vide which, he sent the documents to SP, CBI, EOWI, New Delhi. The said letter bears his signatures at pt. A, which he has proved.
CBI vs. Rajesh Kohli & Ors. 14 of 118 pages 15 CBI case . No.23/11
33. PW1 has further deposed that he had examined the claim file no. 351000/2145/97/98/69/R463, regarding M/s G.S. Financial & Computer Consultancy, which has been proved as Ex.PW1/C (consisting of 33 sheets).
34. PW1 has further deposed that M/s Pooja International and M/s Honey International were among the approved recovery agents and that as per their record, accused K.V. Juneja was the owner of M/s Honey International. He has further deposed that all the divisional offices, which were in the jurisdiction of DRO I & II, were authorized to appoint any of the approved recovery agents and that these approved recovery agents were for DOX and DOXIII.
35. PW2, Sh. Anil Kumar Tiwari was posted as Administrative Officer in Vigilance Department of National Insurance Company during the period from 1997 to 2000.
36. PW2 has reiterated the report, Ex.PW1/A, which CBI vs. Rajesh Kohli & Ors. 15 of 118 pages 16 CBI case . No.23/11 was prepared by him along with PW1, Sh. A.K. Seth and Mr. A.L. Gambhir, regarding claims of M/s Santoshi Chemicals, M/s Supreme Trading Corporation, M/s Evershine Enterprises, M/s Super Traders, M/s Vinayak Polymers and M/s G.S. Financial & Computer Consultancy. He has identified his signatures at point B and that of PW1, Sh. A.K. Seth, at pt. A, on the said report.
37. PW2 has further deposed that he had gone through the file, which is Ex.PW1/C, regarding claim of M/s G.S. Financial and Computer Consultancy, consisting of 33 pages, while submitting the said report. PW2 has, thus, corroborated the version of PW1, in as much as, the report, Ex.PW1/A and file, Ex.PW1/C, are concerned.
38. PW3, Sh. Krutivas Mahapatra was posted as Chief Vigilance Officer in National Insurance Company Ltd., Calcutta, from December, 1997 to March, 2002. He has deposed that he had received the report, dated 28.09.1999, which was prepared by CBI vs. Rajesh Kohli & Ors. 16 of 118 pages 17 CBI case . No.23/11 PW1, Sh. A.K. Seth, the then Vigilance Officer along with PW2, Sh. A.K. Tiwari and which was also signed by them.
39. PW3 has further deposed that he had found that six false marine claims, amounting to Rs.15,93,568/ were settled in DivisionX. That after getting approval from Chairman cum Managing Director, he had referred the matter to the CBI, on 29.09.2000. He has further deposed that he made a complaint to the CBI. The copy of complaint has been proved as Ex.PW3/1.
40. PW3 has also reiterated, the report, Ex.PW1/A, which was submitted by PW1, Sh. A.K. Seth. He has further deposed that no party can be appointed as 'surveyor' in his own case, though qualified to be appointed as 'surveyor'.
41. PW4, Sh. Visveshwar Nath is an independent witness. He has deposed that he came to Delhi in the year 1995 along with his brother in law, B.N. Tiwari, who was at that time, working in National CBI vs. Rajesh Kohli & Ors. 17 of 118 pages 18 CBI case . No.23/11 Insurance Ltd. That the said Sh. B.N. Tiwari introduced him to accused Rajesh Kohli and requested him to arrange a job for him. That he worked with accused Rajesh Kohli for about two and half years, in his office. That he used to go out for receipt and delivery of post, on behalf of accused Rajesh Kohli. That he used to be paid Rs. 1,000/, per month, as wages.
42. PW4 has further deposed that in the year 1999, he became insurance agent for Division no. X of National Insurance Company Ltd and his agency number was 10080. That he obtained the said agency himself from Sh. C.M. Malhotra, the then Divisional Manager. That he subsequently, on the advise of accused Rajesh Kohli, opened a saving bank account in Asaf Ali Branch of Bank of Baroda, perhaps by the end of the year 1995 or in the beginning of the year 1996.
43. PW4 has further deposed that he used to deposit and withdraw money out of the said account and the amount withdrawn from the aforesaid bank CBI vs. Rajesh Kohli & Ors. 18 of 118 pages 19 CBI case . No.23/11 account was handed over by him to the accused Rajesh Kohli. That generally, one cheque in a month was used to be issued by accused Rajesh Kohli, which was deposited by him in the bank and that the amount withdrawn, was handed over by him to accused Rajesh Kohli.
44. PW4 has further deposed that accused Vinod Kumar Bhutani also used to give him cheques in his name, which were deposited by him in the aforesaid bank account. That he used to withdraw cheque amount from the bank and hand over the same either to accused Rajesh Kohli or in his absence, to accused Vinod Bhutani, as was instructed by accused Rajesh Kohli.
45. PW4 has further deposed that on the instructions of accused Rajesh Kohli, he had opened another bank account in Jeevan Bharti Building Branch of Canara Bank. That subsequently, their office was shifted from Asaf Ali Road to 54 Hanuman Road in the beginning or probably by the end of 1996. That accused Rajesh Kohli as well as accused V.K. CBI vs. Rajesh Kohli & Ors. 19 of 118 pages 20 CBI case . No.23/11 Bhutani had asked him 23 times to issue a blank cheque but he had not obliged them. That thereafter, on the asking of accused Vinod Kumar Bhutani, he had closed his account in Canara Bank, in 1998. That subsequently, his agency was also closed.
46. PW4 has further deposed that in the Bank of Baroda, Asaf Ali Branch, his saving bank account number was 30645 and in Canara bank, his account no. was 28415. He has further deposed that he had withdrawn a sum of Rs. One Lakh and odd amount out of the aforesaid two accounts, which he handed over to accused Rajesh Kohli and accused Vinod Bhutani. He has further deposed that he was submitting income tax returns regularly, since the year 1999.
47. PW4 has further deposed that he had handed over form no. 16A, in respect of B.N. Tiwari, copy of which is Ex.PW4/1 to CBI, which was issued to him from his office, bearing signatures of accused Rajesh Kohli, at pt. A, which have been duly CBI vs. Rajesh Kohli & Ors. 20 of 118 pages 21 CBI case . No.23/11 identified by him. He has further deposed that commission voucher, in respect of B.N. Tiwari, which is Ex.PW4/2, was filled by him, having his signatures and that when the same was filled, a cheque was issued in his favour.
48. PW5, Sh. Amiya Kumar has deposed that in the year 1981, he was Assistant Administrative Officer in the National Insurance Company. He has deposed, in detail, about the procedure, which ought to have been followed by the competent authority for passing the marine claim.
49. PW5 has further deposed that file in respect of M/s G.S. Financial & Computer Consultancy, which is Ex.PW1/C, does not contain the confirmation of compliance of section 64VB of Insurance Act.
50. PW5 has further deposed that the survey report, contained in the aforesaid file shows that the goods arrived at the destination on 08.02.98, delivery of which was taken on 10.02.98 and the said goods reached the consignee's godown on 10.02.98. He CBI vs. Rajesh Kohli & Ors. 21 of 118 pages 22 CBI case . No.23/11 has further deposed that accused Deepak Jain was appointed as 'surveyor' on 09.02.98 by Division no.
10. He has further deposed that an intimation was received that the goods were received by the claimant partly in damaged condition and partly in short delivery, on 09.02.1998.
51. PW6, Sh. Jagat Singh was posted as Senior Manager in the Indian Overseas Bank, on 01.05.2001. He has proved the letter, dated 16.05.2002, copy of which is Ex.PW6/A. The said letter is addressed to Sh. Alok Mittal, SP, CBI, bearing his signatures at pt. A, which have been duly identified by the witness. He has also identified the signatures of Sh. K.K. Soni, the then Chief Manager, on the said letter, which contains the details of four cheques.
52. PW6 has further deposed that vide letter, dated 28.10.02, details of three cheques were given to the IO, Sh. R.P. Kaushal, the then Additional Superintendent of Police, CBI. The said letter has been proved as Ex.PW6/B, which bears his initials CBI vs. Rajesh Kohli & Ors. 22 of 118 pages 23 CBI case . No.23/11 at pt. A and signatures of Sh. K.K. Soni, the then Chief Manager of Indian Overseas Bank, which have been duly identified by the witness.
53. PW6 has further proved the letter, dated 25.07.01, which was sent to Superintendent of Police, CBI, along with cheque no. 096970, dated 27.03.98 for Rs.1,73,439/, which was issued by NIC & certified copy of statement of current account no. 1523 of NIC. The said letter is Ex.PW6/C, which bears his initials and signatures of Sh. S. Chander Shekhar, the then Chief Manager of the bank, which have been duly identified by this witness.
54. PW7, Sh. P.K. Aggarwal has deposed that in February, 2001, he was posted in the Vigilance Department of National Insurance Company Ltd., having its office at Jeevan Bharti Building, Parliament Street, New Delhi.
55. PW7 has deposed that on 08.02.01, he had handed over six claim files to the Investigating Officer at its office at Lok Nayak Bhawan, New Delhi, which CBI vs. Rajesh Kohli & Ors. 23 of 118 pages 24 CBI case . No.23/11 were seized collectively as Ex.PW1/C, vide seizure memo, copy of which is Ex.PW7/A(running into two pages). He has duly identified his signatures on the said seizure memo, at pt. A.
56. PW8, Smt. Hem Lata Ahuja was posted as Stenographer in DOX, National Insurance Company Ltd during the relevant period. She has deposed that note, Ex.PW3/D4, which is in the claim file, Ex.PW1/C, no. 351000/2145/9798/69 of M/s G.S. Financial & Computer Consultancy, at page 9 & 10, was taken by her on the dictation of accused Rajesh Kumar Kohli and that she had typed the said note, bearing her signatures at pt. A, at page no. 9, which have been duly identified by her. She has further deposed that the said note also bears the signatures of Vinod Kumar at pt. B and that of accused persons namely, Vinod Kumar Bhutani, the then Assistant Administrative Officer and Rajesh Kumar Kohli, at pts. C & D, respectively, which are also encircled as red & marked as Q134 and Q133, respectively.
CBI vs. Rajesh Kohli & Ors. 24 of 118 pages 25 CBI case . No.23/11
57. PW9, Sh. Deepak Choudhary was Assistant Administrative Officer in DOX, in the year 2001. He has deposed that he had joined as Assistant Administrative Officer, on 15.04.98. That in the year 1998, accused Rajesh Kumar Kohli was the Incharge Divisional Manager and he remained the Incharge there in the department till August or September, 1998, and then, thereafter, he resigned.
58. PW9 has further deposed that he was looking after the accounts department since his joining and his duties included the issuance of receipts for premium recovered and to disburse the payments, approved by competent authority.
59. PW9 has further deposed in detail about the procedure for issuance of receipt in their department.
60. PW9 has further deposed that the noting on the cover of the file, Ex.PW1/C, pertaining to M/s G.S. Financial & Computer Consultancy, which is encircled in red ink, is mark X1. He has further CBI vs. Rajesh Kohli & Ors. 25 of 118 pages 26 CBI case . No.23/11 deposed that in the said noting it has been mentioned that Rs.17,000/ was received as recovery amount, vide cheque no. 808345, dated 17.09.98. The witness has, however, deposed that the said file does not contain the receipt. He has further deposed that an amount of Rs.2250/ was paid as recovery fee to M/s Pooja International, vide cheque no. 94079, dated 30.09.98.
61. After going through the page nos. 6 to 11, which is a tracing report and 18A, which is a bill, of the said file, the witness has further deposed that M/s Pooja International was appointed as 'tracer' to whom tracing fee was paid, vide cheque no. 103415, dated 26.06.1998. He has further deposed that there is an entry in this regard, which is at red encircled portion.
62. PW9 has further proved the statement of commission, copy of which is Ex.PW9/A, vide which, commission was paid to the agent on the premium of the insured. The said statement bears the signatures of Sh. Amiya Kumar at pt. A and his CBI vs. Rajesh Kohli & Ors. 26 of 118 pages 27 CBI case . No.23/11 own initials at pt. B, which have been duly identified by the witness. He has further deposed that the name of the agent was Sh. B.N. Tiwari.
63. PW9 has further deposed that there is an acknowledgment of M/s Pooja International at page no. 5 of the said file and that all the documents were received by them.
64. PW9 has further deposed that file, Ex.PW1/C, pertaining to M/s G.S. Financial & Computer Consultancy, contains the copies of the documents, except the power of attorney, which was given to the tracer or recovery agent for effecting the recovery.
65. PW9 has further deposed that accused V.K. Bhutani was the Accounts Officer, prior to him. That the underwriting documents included proposal letter/proposal form, copy of premium receipt, copy of policy document, the correspondence, relating to accepting the insurance and pre dispatch inspection, if any, and that the CBI vs. Rajesh Kohli & Ors. 27 of 118 pages 28 CBI case . No.23/11 underwriter was the person, who had accepted and issued the policy.
66. PW9 has deposed that the sum assured in respect of M/s G.S. Financial and Computer Consultancy was Rs.4,23,000/.
67. On being asked specifically, about Open Policy, PW9 has deposed that Open Policy is issued to a person on the basis of a turnover and he is supposed to give the declaration for each & every transaction to the insurance company for insuring the same, under open policy and declarations are to be given compulsorily, within a particular period as stipulated, within the policy itself. He has further deposed that if the sum assured is exhausted, then no declaration is adjusted. He has further deposed that the underwriting means booking of insurance business and before booking to check the business and to see its viability.
68. PW10, Sh. Anoop Kumar Tandon was working as Cashier in National Insurance Corporation, CBI vs. Rajesh Kohli & Ors. 28 of 118 pages 29 CBI case . No.23/11 Division OfficeX, New Delhi, in the year 1998. He has deposed that he used to prepare the cheques of claims, on the basis of duly approved voucher, received from various claim departments.
69. PW10 has deposed that the contents of cheque, dated 27.03.1998 for sum of Rs1,73,439/, which is Ex.PW10/A, have been filled by him. He has identified the signatures of accused V.K. Bhutani, the then Accounts Officer and Mrs. Maya Bariya, the then AAO, at points A & B, respectively, on the said cheque.
70. PW10 has further deposed that he had prepared the aforesaid cheque, Ex.PW10/A, on the basis of voucher for sum of Rs.1,73,439/. The said voucher contains an entry, regarding cheque number and date of issuance of said cheque in his hand. The carbon copy of said cheque has been proved as Ex.PW10/B, which bears the signatures of accused Rajesh Kumar Kohli, the then Divisional Manager, at pt. B, which have been duly identified by the witness as he used to deal with the vouchers, signed CBI vs. Rajesh Kohli & Ors. 29 of 118 pages 30 CBI case . No.23/11 by the said accused, in due course of business.
71. PW11, Sh. Deepak Bhalla was the proprietor of M/s D.B. Trading, which was started by him in the year 1998 at property no. 6516, Qutub Road, Delhi. He has further deposed that the said property was a custodian property, which was in the possession of his grandfather along with him.
72. PW11 has further deposed that he had no knowledge about M/s DelhiCalcuttaBombay Road Carrier, which never operated from premises no. 6516, Qutub Road, Delhi 6, at any time as the said property was with their family, since beginning. He has further deposed that he did not know about the owner of the said transport company.
73. PW12, Sh. Brijesh Kumar has deposed that during the year 2002, he was working as Assistant Manager in the State Bank of Bikaner and Jaipur, Jawalaheri, Market Branch, Paschim Vihar, New Delhi. CBI vs. Rajesh Kohli & Ors. 30 of 118 pages 31 CBI case . No.23/11
74. PW12 has deposed that vide seizure memo, dated 01.11.2002, he had handed over various documents, mentioned at serial no. 1 to 12, to the IO, Sh. R.P. Kaushal, the then Addl. SP, CBI. The copy of the same has been proved as Ex.PW12/A.
75. PW12 has further deposed that the account no.
4577 was opened in the name of accused Arvind Kumar Sharma. The copy of said account opening formcumspecimen signature card, has been proved as PW12/A1, which has also been duly certified by Sh. Jagan Nath Gover, the then Manager(P), bearing his signatures at pt.A, which have been duly identified by the witness as he had seen him signing and writing in official capacity.
76. PW12 has further proved the statement of account, pertaining to account no. 4577 (running into 21 pages), which was opened in the name of accused Arvind Kumar Sharma as Ex.PW12/A2. The said statement of account has also been duly certified by Sh. Jagan Nath Gover, the then Manager(P), bearing his signatures at pt.A, on each page, which CBI vs. Rajesh Kohli & Ors. 31 of 118 pages 32 CBI case . No.23/11 have been duly identified by the witness as he had seen him signing and writing in the official capacity. He has further deposed that the last page of the said statement bears the certificate, as per Banker's Book of Evidence Act and that it bears his signatures at pt. C, which have been duly identified by him.
77. PW12 has further deposed that vide seizure memo, dt. 27.03.03, he had handed over documents, mentioned at serial no. 1 to 7, to Sh. R.P. Kaushal, the IO of the case. The copy of the same has been proved as Ex.PW12/A3, bearing his signatures at pt. A, which this witness has duly identified.
78. PW12 has deposed that pay order no. 808345, dt.
10.09.98, for sum of Rs.17,000/, was issued in favour of National Insurance Co. Ltd., which was handed over to CBI, vide seizure memo, dated 27.03.03, already exhibited as Ex.PW12/A3. The said pay order has been proved as Ex.PW12/A4.
79. PW12 has further deposed that the cheque no. CBI vs. Rajesh Kohli & Ors. 32 of 118 pages 33 CBI case . No.23/11 957343, dt. 10.09.98, for sum of Rs.17,030/, was issued from account no. 4577 of accused Arvind Kumar Sharma for issuance of pay order in favour of National Insurance Company Ltd., which has been proved as Ex.PW12/A5 and the pay in slip, dated 10.09.98, has been proved as Ex.PW12/A6. He has further deposed that the aforesaid instruments along with document, Ex. PW12/A7, were handed over by him, vide seizure memo, Ex.PW12/A.
80. PW13, Sh. B.S. Bisht has deposed that during the period w.e.f 2000 to December, 2004, he was posted in CBI, Economic Offences Wing, New Delhi. He has further deposed that during the course of investigation of this case, he had assisted Sh. R.P. Kaushal, Addl. SP, IO of this case, and had recorded the statements of Sh. Mohan Mehto, Surinder Kumar, Sh. P.R. Rastogi and Sushant Rastogi. He has further deposed that the statements of the above said persons were correctly recorded by him.
81. PW14, Sh. Rajesh Khanna has deposed that he had CBI vs. Rajesh Kohli & Ors. 33 of 118 pages 34 CBI case . No.23/11 been doing business of sewing machines, in the name and style of Khanna Trading Co. at 132, Mahatma Gandhi Road, Calcutta, for the last 1012 years. He has further deposed that no company in the name of M/s Galaxy Electronics was in existence at the above said address and that he had not heard about any such company.
82. PW15, Sh. Giriraj Kumar Pandey was Manager in the Bank of India, MMII Scale, Parliament Street Branch, New Delhi, on 28.10.02. He remained posted in the said branch w.e.f June, 2002 to May, 2003.
83. PW15 has proved the letter, dated 18.07.2002, which is Ex.PW15/A and vide which documents mentioned at serial no. 1 to 4 have been handed over to CBI, with reference to their request letter, dated 16.07.02. The witness has identified the signatures of accused, D.K. Sharma, the then Assistant General Manager, at pt. A, on the said cheque, as he had worked with him and had seen him writing and signing.
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84. PW15 has proved the original account opening form, in respect of current account no. 11733 of M/s G.S. Financial and Computer Consultancy, maintained in Bank of India, Parliament Street Branch, copy of which is Ex.PW15/B. The witness has further deposed that the said account was opened on 17.03.99 and that Sh. Sanjay Sharma, Proprietor of the firm was the authorized signatory of the firm. That the said account was introduced by M/s G.S. Financial Computer & Consultancy, who were having another current account no. 11600 in the same branch.
85. PW15 has further proved the Statement of Account, No.11600 of M/s G. S. Financial and Computer Consultancy Limited (running into three pages) for the period 01.10.1996 to 27.09.1996, copy of which is Ex.PW15/C. The witness has further deposed that the said statement has been duly certified as per Banker's Book of Evidence Act, which bears his signatures, at point A, on each page, which he duly identified.
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86. Similarly, PW15 has proved the Statement of Account, No.11600 of M/s G. S. Financial and Computer Consultancy Limited (running into three pages) for the period 07.04.1998 to 17.03.1999, copy of which is Ex.PW15/D. The witness has further deposed that the said statement has also been duly certified as per Banker's Book of Evidence Act, which bears his signatures, at point A, on each page, which he duly identified.
87. PW15 has further proved the clearing Statement, duly certified under the Banker's Book of Evidence Act, certified copy of which is Ex. PW15/E. He has identified his initials and signatures at points A & B, and that of Chief Manager, Mr. Jha, at point C, whose name he did not remember. He has further deposed that the 2nd page of the said document also bears his signatures at pt. A. He has further proved the letter dated 06.11.02, vide which, aforesaid statement was handed over to CBI, which is Ex.PW15/F. He has identified the signatures of Sh. S.C. Jha, at pt. A, on the said letter. He has further CBI vs. Rajesh Kohli & Ors. 36 of 118 pages 37 CBI case . No.23/11 reiterated, Ex.PW10/A, regarding which an entry has been made at serial no. 178, at point E.
88. PW16, Sh. R.K. Kaul has deposed that on 03.03.03, he was posted as Assistant General Manager in National Insurance Company, Delhi, Regional OfficeI, Connaught Place, Jeevan Bharti Building, New Delhi.
89. PW16 has further deposed that vide order, dated 03.03.03, he had accorded sanction for prosecution, in respect of accused Vinod Kumar Bhutani, who was the then Assistant Administrative Officer in NIC, Divisional OfficeX, Delhi, for commission of offence, punishable under section 120B read with 420, 467, 468, 471 IPC and section 13(2) read with section 13(i)(d) of Prevention of Corruption Act, 1998, which has been proved by him as Ex.PW16/A (running into two pages). He has further deposed that he had gone through the investigation report of CBI and had perused the statements of witnesses and documents, mentioned in evidence and was satisfied that accused Vinod Kumar Bhutani had CBI vs. Rajesh Kohli & Ors. 37 of 118 pages 38 CBI case . No.23/11 committed the aforesaid offences and that being Assistant General Manager, he was competent authority to remove him. He has further identified his initials, on first page & signatures, on 2nd page, at pt. A, on the said sanction order. Nothing has appeared on record to show that sanction in this case was accorded without application of mind. The sanction, Ex.PW16/A is, therefore, in order and is acceptable.
90. PW17, Sh. Dalip Kumar Dass was working as postman in the Bara Bazar Post Office, Calcutta, since 1995. He has deposed that he was delivering ordinary daak as well as registered letters at different part of beat no. 25, which was earlier known as beat no. 28.
91. PW17 has deposed that alleged M/s Galaxy Electronics at 132, MG Road, Calcutta, was falling under his jurisdiction. He, however, further deposed that no company in the name of M/s Galaxy Electronics was functioning. He was further asked by the court to clarify as to whether M/s CBI vs. Rajesh Kohli & Ors. 38 of 118 pages 39 CBI case . No.23/11 Galaxy Electronics was at all working from 132, MG Road, to which he replied that no such firm was working at 132, MG Road, Calcutta.
92. PW17 has further deposed that during entire tenure of his posting, he had never delivered any daak, addressed to M/s Galaxy Electronics.
93. PW17 has further identified the endorsement on the envelope, in the name of M/s Galaxy Electronics, 132, Mahatma Gandhi Road, Calcutta700007, which was sent by Vigilance Department of NIC Ltd, at points A &B. The said envelope is Mark PW17/X. He has further deposed that the said endorsement was probably made by his colleague, Sh. Narayan Chander Dass, Postman, who retired in January, 2011. He has further deposed that the abbreviation 'N/F' means 'not found' and 'Not Kn' means 'Not Known', which have been mentioned at pts.A & B, respectively, on mark PW17/X. This witness, thus, corroborates the version of the prosecution that M/s Galaxy Electronics was nonexistent.
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94. The accused Ajay Sharma was required to prove under section 106 of Evidence Act that M/s Galaxy Electronics existed as he was having special knowledge and documents to prove it. But he failed to do so.
95. In the case law reported as Krishna Kumar Vs. UOI, AIR 1959 SC 1390, and Indore Municipal Corporation Vs. Caltex (India) Ltd, AIR 1991 SC 454, Hon'ble Supreme Court has held that :
"If the facts are within the knowledge of the accused, it is enough to establish facts which give rise to a suspicion and then by reason of Sec. 106 of the Evidence Act to throw the onus on him to prove his innocence."
96. PW18, Sh. Narayan Chander Dass was the postman in Bara Bazar Post Office, Calcutta, in 1993, who retired in January, 2011.
97. PW18 has deposed that address of M/s Galaxy Electronics, 132 Mahatama Gandhi Road, Calcutta was falling within his beat. He has further deposed CBI vs. Rajesh Kohli & Ors. 40 of 118 pages 41 CBI case . No.23/11 that he had gone to deliver the envelope of registered letter, addressed to M/s Galaxy Electronics at 132, Mahatama Gandhi Road, Calcutta, which was issued by NIC, 3, Middleton Street, Calcutta. That at the said address, M/s Galaxy Electronics was not found existing and as such, he made endorsement on the backside of envelope 'N/F', denoting 'not found' on 07.05.99. He has proved the said endorsement at pt. A on registered letter, which is Ex.PW18/A. He too has corroborated the case of the prosecution.
98. PW18 has further deposed that he had again visited the aforesaid address on 08.05.99, where he enquired from the neighbourhood about the existence of M/s Galaxy Electronics but was told that no such firm existed at the given address and as such, he again made an endorsement at pt. B on 08.05.99, 'NotKn', denoting 'not known' on the back side of envelope, Ex.PW18/A. He has identified his signatures under both the endorsements at points A & B on the back side of Ex.PW18/A. He has further deposed that he had CBI vs. Rajesh Kohli & Ors. 41 of 118 pages 42 CBI case . No.23/11 never delivered any letter in the name of M/s Galaxy Electronics at 132, Mahatma Gandhi Road, during his entire tenure at the said post office.
99. PW19, Sh. A.K. Saha was the Assistant Administrative Officer in Vigilance Department of NIC, Calcutta, RegionII, on 13.08.1999.
100. PW19 has further deposed that the letter dated 13.08.1999, which is Ex.PW19/A, was sent by him to the Vigilance Officer, Delhi Region, OfficeI, on which he identified his signatures at pt. A. That vide the said letter, he had informed that the M/s Galaxy Electronics was not existing at 132, Mahatma Gandhi Road, Calcutta. He deposed that Ex.PW19/B was issued by his department as it contains the seal of their department.
101. PW20, Sh. Jyoti Kumar, was the initial Investigating Officer of this case.
102. PW20 has further deposed that vide FIR, which has been proved as Ex.PW20/A, the investigation of this CBI vs. Rajesh Kohli & Ors. 42 of 118 pages 43 CBI case . No.23/11 case was entrusted to him, on 23.01.01. He has identified the signatures of Sh. Rajender Prasad, the then SP, at pt. A, on the said FIR.
103. PW20 has further deposed that during the course of investigation, he had seized various relevant documents and recorded statements of some witnesses. That the further investigation of this case was transferred to Sh. R.P. Kaushal, the then Additional SP.
104. PW20 has further deposed that vide seizure memo, dated 08.02.01, which is already Ex.PW7/A, six claim files were seized from Sh. P.K. Aggarwal, the then Administrative Officer, Vigilance Department, NIC, Connaught Circus, New Delhi. He has identified signatures of Sh. P.K. Aggarwal as well as his own signatures at points A and B, respectively.
105. PW20 has further reiterated letter, dated 25.07.01, which is already Ex.PW6/C. He has deposed that the said letter was received by him through his SP from Indian Overseas Bank, New Delhi, which CBI vs. Rajesh Kohli & Ors. 43 of 118 pages 44 CBI case . No.23/11 bears his initials at pt. B, which he duly identified.
106. PW20 has further deposed that during the course of investigation, he had obtained specimen writings and signatures of accused K.V. Juneja, in the presence of an independent witness, Sh. Prabhat Kumar Aggarwal, the then Administrative Officer, National Insurance Company, which are collectively proved as Ex.PW20/B(running into 20 pages). He has further identified the signatures of accused K.V. Juneja and Prabhat Kumar, at points A & B, respectively, on each page of aforesaid document.
107. Similarly, PW20 had obtained specimen signatures and initials of accused Ajay Sharma, in presence of an independent witness, Sh. Ajay Kumar Srivastava, the then Manager of Allahabad Bank, which are collectively proved as Ex.PW20/C (consisting of seven sheets). He has further identified the signatures of accused Ajay Sharma as well as that of witness, Sh. Ajay Kumar Srivastava, at points A & B, on each page of Ex.PW20/C. CBI vs. Rajesh Kohli & Ors. 44 of 118 pages 45 CBI case . No.23/11
108. PW21, Sh. S.L. Garg has deposed that in the year 2002, he was posted as Inspector in CBI. He had assisted the part IO in the investigation of this case and had recorded the statements of some of the witnesses namely, Ashok Kumar Sharma, Deepak Bhalla and Rajender.
109. PW22, Sh. S.K. Gupta has deposed that on 22.11.02, he was posted as Special Assistant in Syndicate Bank in Khan Market Branch, New Delhi. He has further deposed that specimen signatures of accused V.K. Bhutani were obtained by the IO of this case, Sh. R.P. Kaushal, in his presence, which have been collectively proved as Ex.PW22/A(running into 11 pages), which bears his signatures at pt. A and that of Sh. R.P. Kaushal at pt. B, which have been duly identified by the witness. He has further deposed that the said signatures have been voluntarily given by accused V.K. Bhutani.
110. PW23, Sh. R.P. Kaushal is the Investigating Officer CBI vs. Rajesh Kohli & Ors. 45 of 118 pages 46 CBI case . No.23/11 of this case. He has deposed that during the period from 2002 to 2006, he was posted as Additional, Superintendent of Police, CBI, EOWI, New Delhi. He has further deposed that the present case was handed over to him by Sh. Jyoti Kumar, the then Deputy Superintendent of Police, CBI, for further investigation.
111. PW23 has deposed that during the course of investigation, he was also assisted by other IOs namely, B.S. Bisht, B.M. Pandit, S.L. Garg, who were all Inspectors along with Smt. Rekha Sangwan, the then SI and others.
112. PW23 has further deposed that during the course of investigation, he had recorded the statements of witnesses and had also collected/seized documents from the concerned persons/authorities.
113. PW23 has further deposed that he had collected specimen and admitted handwritings of the accused persons, which were sent to CFSL for comparison and for obtaining expert opinion, CBI vs. Rajesh Kohli & Ors. 46 of 118 pages 47 CBI case . No.23/11 which had been filed alongwith the documents in the court. He has further deposed that while sending the above mentioned documents to CFSL, he had sent questioned documents, marked as Q1 to Q139, specimen writings / signatures, marked as S1 to S92 and admitted writings/signatures, marked as A1 to A75 through SP, CBI, EOW, vide letter, dated 09.12.2002 in a sealed cover, under the signatures of the then S. P. Shri Alok Mittal of CBI, EOW, Delhi. The copy of said letter has been proved as Ex. PW23/A. The witness has also identified the signatures of Sh. Alok Mittal on the said letter, at pt. B, as he had seen him writing and signing, during the course of official dealing.
114. PW23 has further proved the expert opinion, received in this case, copy of which is Ex.PW23/B, which was received through a forwarding letter, dated 03.04.03. Copy of said letter has been proved as Ex.PW23/K. The expert's opinion proved on record goes unchallenged in this case and can be accepted as against the accused persons. CBI vs. Rajesh Kohli & Ors. 47 of 118 pages 48 CBI case . No.23/11
115. In the case law reported as Murari Lal Vs. State of M. P., AIR 1980 SC 531, Hon'ble Supreme Court has held that :
"In cases where the reasons for the opinion are convincing and there is no reliable evidence through a doubt, the uncorroborated testimony of a handwriting expert may be accepted."
116. PW23 has further deposed that vide letter, dated 27.06.2002 of Shri S. Roy, he had received the enclosures as mentioned in the letter, copy of same has been proved as Ex. PW 23/C.
117. PW23 has further deposed that vide seizure memo, dated 17.9.2002, he had seized documents from Shri Deepak Chaudhary, the then AAO, NIC, DO10, New Delhi. The copy of said seizure memo has been proved as Ex. PW23/D, which bears his signatures at point A and that of Shri Deepak Chaudhary at point B, which have been duly identified by the witness.
118. PW23 has further deposed that he had also received CBI vs. Rajesh Kohli & Ors. 48 of 118 pages 49 CBI case . No.23/11 the details regarding six policies, vide letter, dated 19.9.2002, copy of same has been proved as Ex. PW23/E.
119. PW23 has further deposed that he had also collected documents, vide letter, dated 01.11.2002 from Shri Brijesh Kumar Sharma, the then Asstt. Manager, State Bank of Bikaner & Jaipur, Paschim Vihar Branch, New Delhi, which is already proved as Ex.PW12/A.
120. PW23 has deposed that he had also collected documents, vide letter, dated 03.12.2002 from Shri S. Roy, Asstt. Manager, copy of same has been proved as Ex.PW23/F .
121. PW23 has further deposed that he had also seized documents, vide seizure memo, dated 27.03.03, from Sh. Brijesh Kumar Sharma, the then Assistant Manager, copy of which has been proved as Ex.PW12/A3. The witness has identified the impressions of his signatures at pt. B and the signatures of Sh. Brijesh Kumar Sharma, at pt. C, CBI vs. Rajesh Kohli & Ors. 49 of 118 pages 50 CBI case . No.23/11 on the said document.
122. PW23 has further deposed that vide seizure memo, already proved as Ex.PW12/A3, he had seized several documents, consisting of bankers cheque no. 808345, dated 10.09.98, for sum of Rs.17,000/, which is already proved as Ex.PW12/A4, cheque no. 957343, dated 10.09.98 for sum of Rs.17,030/, which is already Ex.PW12/A5 and draft/mail transfer/bankers cheque application form, dated 10.09.98 for sum of Rs.17,030/.
123. PW23 has further deposed that he had also seized CD PUB Statement, w.e.f 01.01.97 to 31.12.98, showing relevant entry, dated 28.03.98, in respect of clearance of cheque no. 96970 for sum of Rs. 1,73,439/, which has been proved as Ex.PW23/G.
124. PW23 had also procured CD PUB Statement w.e.f 01.01.97 to 31.12.98 of account no. 1523 of National Insurance Company from Indian Overseas Bank, Parliament Street, New Delhi, which has been proved as Ex. PW23/H and documents from AGM, CBI vs. Rajesh Kohli & Ors. 50 of 118 pages 51 CBI case . No.23/11 Bank of India, Parliament Street, vide letter, dated 06.11.02, which is already proved as Ex.PW15/F.
125. PW23 has further deposed that he had also seized document, Ex.PW23/I, commission voucher, already proved as Ex.PW4/2 and statement of Sh. B.N. Tiwari (consisting of two pages), which is Ex.PW23/J through seizure memo, already proved as Ex.PW23/D.
126. PW23 has further deposed that during the course of investigation, he had also obtained specimen signatures of accused V.K. Bhutani, which are already proved as Ex.PW22/A, colly, specimen signatures of accused Deepak Jain (S26 to S36), which are Ex.PW23/L, in the presence of an independent witness, Amia Kumar, the then Senior Divisional Manager, National Insurance Company, DOX, New Delhi.
127. PW23 has further deposed that he had also collected details of policies numbers from National Insurance Company, Delhi, DOX, which are CBI vs. Rajesh Kohli & Ors. 51 of 118 pages 52 CBI case . No.23/11 collectively Ex.PW23/M.
128. PW23 has further deposed that after completing the investigation, he had filed the charge sheet and supplementary charge sheet. He has deposed that he had also obtained sanction for prosecution, copy of which has been proved as Ex.PW23/N.
129. Now, I come to the version put forward by the defence witnesses.
130. DW1, Sh. B.K. Sachdeva has proved on record the Claim Procedural Manual of NIC as Ex.DW1/A. He has agreed that the claim in question, was processed by accused Rajesh Kumar Kohli, who had the experience and wisdom of more than 20 years. He has further agreed that he has no personal knowledge of this case.
131. DW1 has also admitted that the insured has to act and take precautions, as if he was uninsured. That in case, FIR had been lodged, then it was the duty of the claim presenting authority to see the FIR. CBI vs. Rajesh Kohli & Ors. 52 of 118 pages 53 CBI case . No.23/11
132. DW1 has further agreed that recovery agent is entitled to deposit only in case of actual recovery and that in no case, the recovery agent can deposit the money from his own account, without actual recovery from the concerned party.
133. This witness also, therefore, only confirms the case of the prosecution, rather than to help the defence, in any manner, whatsoever.
134. Accused Vinod Kumar Bhutani was examined as DW2.
135. In cross examination, DW2 has identified the signatures of co accused Rajesh Kumar Kohli, at pt A, on the letter, Ex. PW2/DX.
136. DW2 has identified the portion encircled at pt. A on the certificate, Ex.PW2/DX1, vide which the same was marked to him by co accused Rajesh Kumar Kohli. He has further identified his signatures at pt. B on the policy, Ex.DW2/DX2. CBI vs. Rajesh Kohli & Ors. 53 of 118 pages 54 CBI case . No.23/11
137. DW2 has further identified the writing of accused Rajesh Kumar Kohli at encircled portion A on letter, dated 27.02.1998, Ex.DW2/DX3, vide which he marked the same to Mr. Vinod Lal, the then Senior Assistant.
138. DW2 has further identified his signatures at pt C on claim note, Ex.PW3/D4. He has admitted that he had signed the said claim note, in token of having recommended the same for passing. He has further admitted that at serial no. 24, there is a list of documents, some of which are tick marked and that the tick mark is done, in token of verification of the documents concerned. He has further admitted that the documents mentioned at serial no. 24(i) and (iii) are not tick marked and that he did not verify these documents before recommending. He could not explain about absence of claim bill. He also could not say anything as to how claim on carrier document at page 13 of file, Ex.PW1/C was received in their office.
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139. DW2 has further admitted that vide letter, Ex.DW2/DX, claim bill in duplicate was also asked for by co accused Rajesh Kumar Kohli. He has further admitted that a copy of FIR was also called for, vide the said letter and that he had recommended for passing the claim, vide his recommendations, Ex.PW3/D4.
140. DW2 has further agreed that the disbursement voucher, carbon copy of which is Ex.PW10/B, was prepared by Ms. Hem Lata and was passed by co accused Rajesh Kumar Kohli. He has also identified the signatures of co accused Rajesh Kumar Kohli, at point B, on the same. He has further identified the signatures of co accused Rajesh Kumar Kohli at pt. A on the surveyor appointment letter, Ex.DW2/DX4.
141. DW2 has denied the suggestion that he had recommended the claim despite deficiency in the required documents, in pursuance of criminal conspiracy and to help the other accused persons, in order to commit the offences.
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142. The material appearing on record, however, clearly suggest that he had recommended the claims in this case despite deficiencies/manipulations/fabrications in the required documents, in pursuance of the criminal conspiracy and to help the other accused persons in order to commit the offences alleged, in this case.
143. DW3 is accused Rajesh Kumar Kohli. This witness has also confirmed his signatures and writings on the various documents, placed and proved on record by the prosecution. Except vague assertions, he has not brought out anything, which either contradicts the prosecution case or establish that he was innocent. On the contrary circumstances of this case indicate that he had passed bogus and false claim with an accelerated pace, ignoring altogether the mandatory provisions of the Procedural Manual.
144. DW3 Rajesh Kumar Kohli was not a lay man and CBI vs. Rajesh Kohli & Ors. 56 of 118 pages 57 CBI case . No.23/11 was certainly trained as a specialist to ensure that only genuine claims are passed and any falsehood in the claim was required to be certainly detected/probed by him. His conduct from the various documents and circumstances, placed and proved on record by the prosecution, prove it otherwise. Instead of having a hawk's eye, he had been perpetrating the sanction of bogus claims, one after the other.
145. It is thus clear that the deposition of the defence witnesses do not bring anything on record to show that either the prosecution story is false or accused persons are innocent. On the contrary it corroborates and justify the prosecution version only.
146. The prosecution among other things has established, in this case, that :
(a) Neither consignor, M/s Galaxy Electronics nor the transporter M/s Delhi Calcutta Bombay Road Carriers existed at the address given.
(b) The survey report was false, forged and fabricated.
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(c) The recovery from the transporter shown was false, fabricated and bogus as transporter and consignee did not exist.
(d) The claim in question was falsely and dishonestly processed and passed.
(e) The claimant presented false, fabricated and bogus claim.
(f) The NIC Ltd was cheated by accused persons to the tune of Rs.1,73,439/
147. That in pursuance to the criminal conspiracy, false insurance claims have been obtained by the accused persons from NIC DO X.
148. Further, the circumstances indicate that either no goods were transported or the transportation of the goods, as alleged, was false, fake and manipulated.
149. The Manual, which has been placed on record by the defence and is Ex.DW1/A, admittedly contains the procedure in case of Marine Cargo Claims to be followed while processing the claims. This manual CBI vs. Rajesh Kohli & Ors. 58 of 118 pages 59 CBI case . No.23/11 provides clearly that wherever, discretion is exercised by the Settling Authority to dispense with the essential requirement the discretion should be judiciously used and reasons thereof in detail should be recorded. In the instant case, admittedly, no reasons were recorded by the settlement authority i.e. accused, Rajesh Kumar Kohli and V. K. Bhutani.
150. That in case general procedure is to be deviated while processing and passing the claims, the reasons justifying the departure are required to be clearly set out, which is not the case here.
151. The procedural manual duly proved as Ex.DW1/A by the defence and not disputed by the prosecution provides the following relevant provisions:
".....the claim settling authority should use his discretion by recording his reasons, in detail.
1. Intimation of Claim (1.1) Intimation of claim is normally received from claimant by letter, telegram or even by phone, followed by a letter. Each intimation should be CBI vs. Rajesh Kohli & Ors. 59 of 118 pages 60 CBI case . No.23/11 recorded in writing, confirming the message and date and time of its receipt.
(1.2) On receipt of a claim intimation, the dealing office should; (a) ascertain whether insurance policy is in existence and
(b) allot a claim number
(c) prepare a claim docket filling in all the details
(d) make an entry in claim intimation register in serial order.
2. OPEN DELIVERY FROM CARRIERS/THIRD PARTY (2.1) In order to establish that the goods have been lost or damaged whilst in the custody of carriers, claimants have an obligation to apply for open assessment delivery from the carriers. Failure to do so would prejudice the insured's right of recovery under the policy.
(2.2) Where the written application for open/survey delivery is refused by the carriers and a survey is disallowed by them, the claimant shall be asked to take delivery under a written protest after survey by a surveyor deputed by the dealing office. (2.3) In case of nondelivery/short delivery, the claimant shall be asked to obtain and send to the dealing office either a nondelivery/short delivery certificate from the Port Authorities or the original Railway Receipt (RR), Lorry Way Bill (LWB) or Air CBI vs. Rajesh Kohli & Ors. 60 of 118 pages 61 CBI case . No.23/11 Consignment Note duly endorsed by the carriers, confirming nondelivery/short delivery or a separate nondelivery/short delivery certificate, as the case may be.
3. APPOINTMENT OF SURVEYOR 3.1 It is necessary to decide whether a survey of goods reported lost or damaged is to be arranged. 3.2 Claim exceeding Rs.20,000/ should be surveyed by a duly licensed surveyor. 3.6 In marine insurance unlike other classes of insurance, survey fee is initially paid by the claimant. The survey fee will be reimbursed to the claimant along with the claim amount, if the claim is admissible under the policy. This should be brought to the notice of the claimant whilst advising him about appointment of surveyor. 3.7 The dealing office shall also arrange for surveys 'without prejudice' on losses reported under policies issued by other policy issuing offices which are not under its jurisdiction. Thereafter, the dealing office shall process the entire claim upto final settlement keeping the policy issuing office informed of all developments.
3.10 Normally, the survey report should be finalized within three weeks. The surveyor shall be instructed to keep the dealing office informed of the progress of CBI vs. Rajesh Kohli & Ors. 61 of 118 pages 62 CBI case . No.23/11 his work in case of delay. He shall alert dealing office immediately if it is known that a third party is responsible for the loss so that arrangements for a joint survey with the third party's representative can be made.
3.11 If the loss is a major one, the surveyor shall be asked to submit one or more interim reports. 3.12 The dealing office should keep in touch with the surveyors throughout.
4. DOCUMENTS REQUIRED FOR SETTLEMENT OF ALL CLAIMS.
4.1 Documents required for settlement of all claims are as under:
i. Original insurance policy/declaration under the open policy, duly endorsed by the insured/claimant.
ii. Original or a signed copy of sales invoice along with packing list.
iii. Copy of Bill of Lading (in case of sea voyage).
iv. Copy of Bill of Entry.
v. In case of General Average, Counter
Guarantee or original Cash Deposit Receipt with Letter of Transfer.
vi. Letter of Subrogation duly stamped (only where recovery from carriers is possible). vii. Special Power of Attorney( wherever applicable).
CBI vs. Rajesh Kohli & Ors. 62 of 118 pages 63 CBI case . No.23/11 viii. Lost Over Board Certificate where loss has taken place during loading.
ix. In case of shortlanding/nondelivery of
complete assignment:
Original contract of affreightment duly endorsed in our favour viz. Railway Receipt, Transport Receipt, full set of Bill of Lading, Air Consignment Note and Postal Receipt etc as applicable. The original contract of affreightment should be endorsed by the carrier confirming shortlanding/nondelivery of the entire consignment by them or with a separate shortlanding/non delivery certificate.
x. In case of partial non delivery/shortlanding: Nondelivery and/or landed but missing certificate from the carriers or Port Trust.
xi. In case of partial loss or damage:
a. Open assessment report by the carrier and/or b. Survey Report of independent survey. c. Claim form (as per Annexure'A') d. Claim bill (where necessary).
xii. Copies of correspondence exchanged with the carriers along with registered AD cards (wherever recovery from the carriers is possible).
xiii. Banker's Certificate confirming non CBI vs. Rajesh Kohli & Ors. 63 of 118 pages 64 CBI case . No.23/11 receipt of export proceeds in India in an approved manner (in case of claims under export policies settled in India).
6. CLAIM SETTLEMENT ON DESPATCHES BY INLAND TRANSIT (RAILWAYS OR ROAD CARRIERS OR OTHER MODES OF TRANSIT FOR DESPATCHES WITHIN INDIA).
6.1 Short and Non Delivery 6.1.1 When a claim for short delivery or non delivery of a consignment is reported, consignees should be advised to obtain signed certificate of the delivery authorities on the reverse of the Receipts certifying that the packages are not available for delivery or obtain a separate shortlanding or non delivery certificate. The consignees should be requested to lodge a valued claim on the carriers by Registered Post Acknowledgment Due within a period as set out in 6.2.2 below.
Tracing agents should also be engaged, whenever necessary.
9. GENERAL 9.9 All documents must be called for in one go and not in piecemeal.
11. DISCRETION TO BE USED BY DIVISIONAL OFFICE CBI vs. Rajesh Kohli & Ors. 64 of 118 pages 65 CBI case . No.23/11 11.1 The dealing office has to use its discretion judiciously after calling for necessary explanation from the claimant. Reasons for using discretions shall be duly recorded by the person concerned. 11.2 Where the right of recovery from the carriers/third party is prejudiced the claim amount payable shall be restricted to not exceeding 75 % of the assessed loss other than in respect of excepted Articles as per Indian Railway Act or Carriers Act, where the amount payable shall be the assessed loss less the recovery amount prejudiced."
152. The said manual further provides that intimation of claim is normally received from insured, consignor, consignee and or their agents by letter, telegram or even on phone followed by a letter. Each verbal or telephonic information is required to be recorded in writing confirming the message, date and time of its receipt. This does not find compliance in the instant case.
153. Para 12 of the Manual further provides that all the recovery claims should be properly followed up and CBI vs. Rajesh Kohli & Ors. 65 of 118 pages 66 CBI case . No.23/11 if no settlement is received from the Carriers within a reasonable period or if Carrier repudiate the liability the dealing official legal advisor is required to be requested to give his opinion on the question of filing of a suit based on chances of success and cost involved compared to the claim amount. The decision regarding the legal action is to be taken by the official authorised to settle the claim. The duty/responsibility, in this regard, was of accused Rajesh Kumar Kohli as he was the Head of the NIC DOX and also headed the claim committee concerned.
154. That as per the annexure to the procedural manual, marine cargo claim has also the conditions printed on the insurance policies, issued by the NIC, which was necessary for the claimants to obtain and submit the original damage/shortage/nondelivery certificate from the carrier if the goods were damaged in transit, or if short delivered or nondelivered at all.
155. That as per the procedure, after receipt of the CBI vs. Rajesh Kohli & Ors. 66 of 118 pages 67 CBI case . No.23/11 claim intimation and submission of the required documents, the same were required to be processed by the claim clerks or assistants and thereafter recommended to the passing authority i.e. accused Rajesh Kumar Kohli. That despite the claim clerk and assistant being available, the accused Rajesh Kumar Kohli himself dictated the claim note to PW Hem Lata Ahuja, a stenographer, who has been examined as a witness and has deposed to this effect. The said witness has categorically stated that she typed the note, Ex. PW3/D4, in file, Ex. PW 1/C, relating to the M/s G. S. Financial and computer Consultancy, on dictation of accused Rajesh Kumar Kohli. The said PW Ms. Hem Lata Ahuja has specifically written below her signatures her capacity in the note as stenographer. She therefore, was merely a typist. Even otherwise, in case, she had processed the claim accused Rajesh Kumar Kohli and V. K. Bhutani might have insisted her to mention her status as claims clerk in the claim note. No cogent evidence has been placed on record by the defence to show that she was assigned the job of claim clerk CBI vs. Rajesh Kohli & Ors. 67 of 118 pages 68 CBI case . No.23/11 or assistant. PW Hem Lata Ahuja has categorically stated in her deposition that during the relevant period there were 34 Sr. Assistants in the staff in Divisional Office - X.
156. In the present, accused Rajesh Kumar Kohli appointed Deepak Jainaccused as Surveyor and approved the claim for Rs.1,73,439 and passed the claim despite nonavailability of essential original documents. Besides, he over looked the deficiencies and discrepancies in the documents submitted on behalf of the insured and Surveyor.
157. Accused Arvind Kumar Sharma is the proprietor of M/s Pooja International and Recovery Agent in the present case. He filed forged, false and fake recovery from the transporter (who in fact was non existent) in this case.
158. Accused V. K. Bhutani was AAO in NIC, DO X. He processed the present claim and recommended the same. He deliberately did not point out the deficiencies and discrepancies in the documents CBI vs. Rajesh Kohli & Ors. 68 of 118 pages 69 CBI case . No.23/11 submitted by the claimant.
159. Accused Ajay Sharma is proprietor/partner of M/s G. S. Financial and computer Consultancy i.e. the insured party. He opened the account No. CA 11733 (D7) on 17.3.1999 and pocketed the claim amount sanctioned in this case.
160. Accused Deepak Jain is Surveyor in the present case. He submitted false, bogus and fabricated certificate and survey report.
161. It is clear from the circumstances and material placed and proved on record by the prosecution that
(i) The copy of RR, copy of invoice and Insured's Claim bill were not available in the claim file, Ex.PW1/C. But in the absence of these documents, the claim was dishonestly processed and passed by the accused persons V.K. Bhutani and Rajesh Kumar Kohli.
CBI vs. Rajesh Kohli & Ors. 69 of 118 pages 70 CBI case . No.23/11
(ii) Ex.PW12/A6 (D32), vide which draft making application for recovery amount of Rs. 17,000/ was prepared, was from the account of accused Arvind Sharma.
(iii) There is no reference number and date in the survey report. Paragraph 6 to 11 are blank in the survey report. Para 3(a) and (c) contain the contents of evasive nature. No invoice or its copy is available either with the survey report or otherwise in the claim file, Ex.PW1/C, then how accused Deepak Jain mentioned the same in the survey report and still accused Rajesh Kumar Kohli and Vinod Kumar Bhutani processed and passed the claim, is not understandable. , (iv) In para 5(a) of the survey report, address of the carrier is given of Calcutta whereas page no. 7 and 17 of Ex.PW1/C mention only the Delhi address of the transporter. Copy of the GR is not available in the file.
CBI vs. Rajesh Kohli & Ors. 70 of 118 pages 71 CBI case . No.23/11 ( (v) Para 5(e) of the survey report shows that GR with written remarks thereon, was not before the surveyor.
( (vi) The column for weight, as per GR/RR, is lying blank in the survey report.
( (vii) The date of arrival of goods at consignee's godown is 10.02.1998 and in the claim form at page 18 of the claim file, Ex.PW1/C, date of opening of the consignment is also mentioned as same. Reading both the documents would show that damaged consignment GS1 & GS2 were opened on 10.02.98 at the godown of consignee and not at the place of transporter. This paradox was deliberately ignored by the accused persons. ( As such, the claim of the claimant and the report of the surveyor contradict each other. Despite this, the claim was dishonestly passed and processed by accused Rajesh Kumar Kohli and Vinod Kumar Bhutani.
( CBI vs. Rajesh Kohli & Ors. 71 of 118 pages 72 CBI case . No.23/11 , (viii) The photographs of damaged CDs were not taken and were not enclosed with the survey report.
, (ix) The survey report on the face of it makes it doubtful as to how actual damage was assessed or verified by the surveyor.
, , (x) The surveyor was appointed on 09.02.98 but the report submitted by them appears to have been filed on 02.03.98 (as the surveyor has attached the copy of the damage/shortage certificate, dated 02.03.98), which was filed beyond the prescribed time for the reasons that it was falsely fabricated at a later date.
, (xi) In the claim file, there are two different copies of the damage certificate, dated 02.03.98, having different contents, showing the fraud, in this case. These copies are available at page (7) and (17) of the claim file, Ex.PW1/C. , CBI vs. Rajesh Kohli & Ors. 72 of 118 pages 73 CBI case . No.23/11 ‹ (xii) In the claim note, in para 11, it is mentioned that survey was arranged on 09.02.98 as the letter to the consignee was written on 10.02.98, asking them to contact surveyor. The delivery, however, was taken on 10.02.98, which makes the whole thing doubtful being improbable. ‹ ‹ (xiii) No details are mentioned in the claim note to show whether section 64 VB of the Insurance Act was verified to have been complied with. ‹ (xiv) Original invoice in terms of the procedural manual was not insisted upon.
‹ (xv) Copy of the invoice is not available in the claim file.
‹ (xvi) Original damage certificate, original claim bill or its copy, receipted copy of claim of carrier, AD card, Power of Attorney in favour of NIC from the insured party and the original GR with endorsement of the carrier are not available on CBI vs. Rajesh Kohli & Ors. 73 of 118 pages 74 CBI case . No.23/11 the claim file.
(xvii) The claim form available on record is unsigned. There is no stamp of the receipt and receipt number of NIC. It is, thus, highly doubtful as to how and when the claim was received. (xviii) The claim form filed by the claimant does not bear the date. How undated claim form was acted upon by accused V.K. Bhutani and Rajesh Kohli is an unknown mystery.
(xix) Ex.DW2/DX, an admitted document, contains the tick marked items,which do not find mention as documents received, while passing the claim. It shows that some of the documents were ignored with dishonest intention, by accused Rajesh Kumar Kohli and Vinod Kumar Bhutani, while processing and passing the claim. (xx) In the claim form, the consignment has not been specified. It also contains that inspection was CBI vs. Rajesh Kohli & Ors. 74 of 118 pages 75 CBI case . No.23/11 conducted on 08.02.98 and later, which contradicts the survey report, available on record. ‹ ‹ (xxi) In one of the copy of the letter, dated 02.03.98, allegedly of the carrier at page 17 of the file, Ex.PW1/C, there is an overwriting, in as much as, date of 27.02.98 appears to have been changed to 27.01.98. This was dishonestly accepted, blindly.
‹ ‹ (xxii) Insured's reference number is also missing in the survey report.
‹ From the survey report, it is not clear as to how the surveyor came to know that CDs in question were programmed CDs.
‹ The survey report nowhere, indicates as to in whose presence, the survey was conducted and as to who was the representative of consignor,consignee or carrier, present at that time. All this appears to be because there was none CBI vs. Rajesh Kohli & Ors. 75 of 118 pages 76 CBI case . No.23/11 and the survey report was forged and fabricated. The details of inspection are not indicated. (xxiii) Regarding the salvage value determination, no market expert was consulted.
When the report does not show as to when the survey was conducted then how the claim note imported dates of survey as 10.02.98 & 11.02.98, is shocking.
(xxiv) In the claim note, the consignment GS1 & GS2 stated to have been found pressed due to pressure of several boxes put on these boxes, does not find mention in the survey report. Out of the documents received, as are mentioned in the column no. 24 of the claim note, claim bill, AD Card, have not been ticked, showing that these were not filed. No reason has been recorded as to why then these documents were dispensed with CBI vs. Rajesh Kohli & Ors. 76 of 118 pages 77 CBI case . No.23/11 and were not insisted upon.
Ł Letter of subrogation does not bear date. Ł In the letter of subrogation, references, the address, cause of loss and other particulars are lying blank.
Ł (xxv) The claim amount was subjected to filing of complete and proper letter of subrogation. It is not understood as to why then the claim amount was released on blank letter of subrogation.
162. The aforesaid overwhelming and striking documentary evidences available on record only speak of complicity of the accused persons, relating to the fraud committed, in this case. It is a trite law that persons may speak a lie but the documents and circumstances do not.
163. Regarding criminal conspiracy, it is well settled that it is hatched in secrecy and can be proved by CBI vs. Rajesh Kohli & Ors. 77 of 118 pages 78 CBI case . No.23/11 circumstancial evidence.
164. In the case law reported as State of M. P. V Sheetla Sahai, 2009, Cr. LJ 4436 SC, Hon'ble Supreme Court has held that :
"Often criminal conspiracy is hatched in secrecy and for proving the offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence."
165. In the case law reported as Chaman Lal Vs. State of Punjab, AIR 2009 SC 2972, Hon'ble Supreme Court has held that:
"Essence of conspiracy is unalwful combination and the complicity of the accused has to be decided after considering all the circumstances proved, before, during and after occurence. Agreement between the conspirators may also be proved by necessary implication."
166. In the case law reported as R. K. Dalmia V The Delhi Administration, AIR 1962 SC 1821, Hon'ble Supreme Court has held that :
CBI vs. Rajesh Kohli & Ors. 78 of 118 pages 79 CBI case . No.23/11 "It is not necessary that each member of a conspiracy must know all the details of the conspiracy."
167. In the case law reported as Tribhuvan Nath Vs. State of Maharashtra, AIR 1973 SC P 450, Hon'ble Supreme Court has held that :
"Evidence of one accused can be used against the other accused to prove the existence of conspiracy under section 10 of the Evidence Act."
168. In the case law reported as AIR 1974 SC P 898, Hon'ble Supreme Court has held that :
"Even admission of one accused under section 10 of the Evidence Act, can be used against other accused to prove criminal conspiracy."
169. In the case law reported as Kehar Singh Vs. State AIR 1988 SC 1883, Hon'ble Supreme Court has held that :
"Action or statement made by one of the accused could be used as evidence against the other by Virtue of Section 10 of the Evidence Act."
CBI vs. Rajesh Kohli & Ors. 79 of 118 pages 80 CBI case . No.23/11
170. It was held in the case law reported as AIR 2010 SC 3718 'Muriappan Vs. State of Tamil Nadu' that :
"Facts established should be consistent only with the hypothesis of guilt of the accused. It does not mean that each and every hypothesis suggested by accused must be excluded by proved facts."
171. It was further held that :
"False and inconsistent defences taken by the accused can be taken as additional circumstance against him strengthening the chain of circumstances."
172. In the case law reported as Hashim (K) 2005 Cri LJ 143 (SC), the Hon'ble Supreme Court has held that "for an offence punishable under section 120B, the prosecution need not necessarily prove that the perpetrators expressly agree do to or cause to be done illegal act; the agreement may be proved by necessary implication".
173. In the case law reported as (2001) 4 Crimes 247 (SC), the Hon'ble Supreme Court has held that "to prove conspiracy, it is not necessary that CBI vs. Rajesh Kohli & Ors. 80 of 118 pages 81 CBI case . No.23/11 there should be direct communication between each conspirer and every other but the criminal design alleged must be common to all".
174. It has been held in the case law reported as Firozuddin Basheeruddin (2001) 7 SCC 596 that "the rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interest of security, a person may carry out his part of a conspiracy without even being informed of the identity of his coconspirators. An agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of what lies in their minds".
175. It was further observed in the aforesaid judgment that "Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions, any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each coconspirator. Despite the unreliability of hearsay evidence, CBI vs. Rajesh Kohli & Ors. 81 of 118 pages 82 CBI case . No.23/11 it is admissible in conspiracy prosecutions. Thus conspirators are liable on agency theory for statements of coconspirators, just as they are for the overt acts and crimes committed by their confrers".
176. It has been asserted by the defence during the course of arugments that there are defects in the investigation. It is true that the present case has not been very effectively investigated by the Investigating Officers. Had it been investigated much more could have come on the surface and larger rackets could have been unearthed, regarding the fraudulent claims that were being operating in NIC. However, so long as case of the prosecution on the basis of circumstances and documents, established and available on record are available, the defect, if any, in the investigation of this case, confers no benefit upon the accused persons.
177. In the case law reported as 2007 Cri LJ 758(SC), it has been held by the Hon'ble Supreme Court that 'Defective investigation may discredit the prosecution, but prosecution evidence may CBI vs. Rajesh Kohli & Ors. 82 of 118 pages 83 CBI case . No.23/11 not necessarily be discarded on the ground. If the evidence is otherwise reliable and trustworthy, the court may convict the accused. Reminiscence of investigating officer will not ipso facto weaken the case of the prosecution'.
178. In the case law reported as State vs. Santosh Kumar Singh, 2006(4) Crimes 782 (Del), the Hon'ble High Court has held that 'Courts should not be influenced by suspicious roles played by the investigation officer during investigation and criminal justice should not be made a casualty for wrongs committed by investigation officers.'
179. In the case law reported as Dhanraj Singh 2004 Cri LJ 1807 (SC), it has been held by the Hon'ble Supreme Court that 'In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to plying into the hands of the investigating officer if the investigation is designedly defectively. The contaminated conduct of officials should not stand on the CBI vs. Rajesh Kohli & Ors. 83 of 118 pages 84 CBI case . No.23/11 way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. Then the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice'.
180. There was fraud and cheating committed by the accused persons in pursuance to systematic and organised criminal conspiracy.
181. Regarding the offence of cheating, the Hon'ble Apex Court has observed that "when a person gets an order by playing fraud upon the competent authority, such order cannot be sustained in the eyes of law as fraud unravels everything. Fraud and justice never dwell together. Fraud is an anathema to all equitable principles and any affair tained with fraud cannot be perpetuated or saved by the application of any equitable doctrine". {Inderjeet Singh Grewal vs. State of Punjab, 2011(4) RCR (criminal) 1(SC)}.
182. In the case law reported as Devender Kumar Singla vs. Baldev Krishan Singla, 2004 Cri LJ 1774 (SC), CBI vs. Rajesh Kohli & Ors. 84 of 118 pages 85 CBI case . No.23/11 the Hon'ble Supreme Court has observed the following points as essential ingredients to attract section 420 IPC:
1. Cheating;
2. Dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and
3. Mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under section 420."
183. In the judgment reported as Kuldip Sharma, 2000 Cri LJ 1272 (Del), it has been held by the Hon'ble High Court that 'Where the accused obtained payments from the Government of India by sending the bills containing number of bogus railway receipts representing that the contracted goods had been booked and despatched under the bogus railway receipts mentioned in the bills, such false representation amounts to cheating and conviction of the accused under section 420 was held proper'.
184. In the case law reported as Ram Prakash Singh, AIR 1998 SC 296, the Hon'ble Supreme Court has CBI vs. Rajesh Kohli & Ors. 85 of 118 pages 86 CBI case . No.23/11 held that 'Where the accused, a Development Officer in LIC, introduced false and fake insurance proposals to LIC with a view to earn promotion on the basis of inflated business, he was convicted under sections 420/511, 420/120B, 468 & 477 A'.
185. In the case law reported as AIR 2004 SC 3229, the Hon'ble Supreme Court has held that "For an offence under section 471, one of the necessary ingredients is fraudulent and dishonest use of the document as genuine. The act need not be both dishonest and fraudulent".
186. From the above discussion, it is abundantly clear that all the accused persons entered into criminal conspiracy to cheat the NIC by passing of the fraudulent and bogus claim, based upon false, forged and fabricated documents, which were used by them, in this case.
187. All the accused persons, therefore, were hand in glove to commit the alleged offences. CBI vs. Rajesh Kohli & Ors. 86 of 118 pages 87 CBI case . No.23/11
188. All the accused persons are, therefore, guilty of the commission of offence punishable under section 120B IPC read with section 420, 468, 471 IPC and section 13(2) read with 13(i)(d) of the Prevention of Corruption Act, 1988.
189. To attract provisions of section 13(i)(d) of the Prevention of Corruption Act, 1988, public servant should obtain for himself or any other person any valuable thing or pecuniary advantage (i) by corrupt or illegal means or (ii) by abusing his position as a public servant or (iii) without any public interest. {R. Sai Bharathi vs. J. Jayalalitha (2004) 2 SCC 9}.
190. Accused Rajesh Kumar Kohli and Vinod Kumar Bhutani had processed and passed dishonestly the false and bogus claim, in this case, while ignoring the mandatory norms and relying upon forged and fabricated documents dishonestly and in pursuance to the alleged conspiracy to obtain pecuniary advantage to the claimant without any public interest. Both these accused persons are guilty of the offence punishable under section CBI vs. Rajesh Kohli & Ors. 87 of 118 pages 88 CBI case . No.23/11 13(2) read with 13(i)(d) of the Prevention of Corruption Act, 1988.
191. Accused Ajay Sharma was the beneficiary of the false and fabricated claim. He has cheated the NIC Ltd of the claim amount by using false, forged and fabricated documents as genuine. He, therefore, has also committed the offences punishable under section 420 & 471 IPC read with section 468 IPC.
192. It was from the account of accused Arvind Kumar Sharma that fake and small amount of recovery was paid falsely, justifying as if the recovery was made from the transporter. There is no actual recovery from the transporter as the transporter shown was non existent. This accused based upon forged and fabricated recovery deposited with the NIC committed an offence punishable under section 468 IPC also.
193. Accused Deepak Jain furnished false and fabricated survey reports. He also committed an offence punishable under section 468 IPC. CBI vs. Rajesh Kohli & Ors. 88 of 118 pages 89 CBI case . No.23/11
194. Under the circumstances, therefore, I have no hesitation in recording conviction as against all the accused persons, as stated above.
195. All the accused persons are, accordingly, convicted.
196. Let the convicts be heard on the point of sentence, as prayed by them, on 30.11.2012.
Announced in the open court ( N. K. Kaushik ) on 20.11.2012 Special Judge, PC Act CBI Dwarka Courts, New Delhi.
CBI vs. Rajesh Kohli & Ors. 89 of 118 pages 90 CBI case . No.23/11 IN THE COURT OF SHRI N. K. KAUSHIK SPECIAL JUDGE (P C ACT) CBI, DWARKA COURTS, NEW DELHI CBI Case No. : 23/11 RC No. : 1(E)/2001/EOWI/New Delhi In the matter of : CBI Versus
1. Rajesh Kumar Kohli, The then Divisional Manager, National Insurance Company Ltd., DOX, New Delhi.
R/o 187, Pragati Apartment, Club Road, Paschim Vihar, New Delhi.
2. Ajay Sharma, S/o Sh. N.C. Sharma, R/o 602, Bhagirath Jangdid Complex, Mira Road, Thane, Mumbai.
3. Arvind Kumar Sharma, S/o Late Sh. Shambhu Nath Sharma, R/o GH2/122B, Ankur Apartments, Paschim Vihar, New Delhi63.
4. Deepak Jain, S/o Late Sh. Bhagat Singh, R/o 91, Nagin Lake Apartment, Outer Ringroad, New Delhi.
CBI vs. Rajesh Kohli & Ors. 90 of 118 pages 91 CBI case . No.23/11
5. Vinod Kumar Bhutani, The then Assistant Administrative Officer, in National Insurance Company Ltd. DOX, New Delhi.
(Now posted as Administrative Officer, DOI in National Insurance Company Ltd, Delhi.) S/o Sh. Sukh Dayal Bhutani, R/o AGI, Shiva Enclave, Opp. Ordinance Depot, Rohtak Road, Delhi.
...........Convicts Date of Institution : 27.01.2003 Date on which judgment pronounced :
20.11.2012 Date on which order on sentence announced :
7.12.2012 O R D E R O N S E N T E N C E
1. By this order, I shall dispose off the contentions, raised on behalf of the parties, on the point of sentence.
2. In the present case, all the convicts have CBI vs. Rajesh Kohli & Ors. 91 of 118 pages 92 CBI case . No.23/11 been convicted for the offence punishable under sections 120B read with sections 420, 468 and 471 IPC and section 13 (2) read with section 13 (1) (d) of the Prevention of Corruption Act, 1988. Convicts Rajesh Kumar Kohli and Vinod Kumar Bhutani have been convicted, in addition, for the offence punishable under section 13(2) read with section 13 (1) (d) of the Prevention of Corruption Act, 1988. Convict Ajay Sharma has been convicted, in addition, for the offences punishable under sections 420 and 471 IPC read with section 468 IPC.
Convicts Arvind Kumar Sharma and Deepak Jain, both, have been convicted, in addition, for the offence punishable under section 468 IPC.
3. It has been strongly contended on behalf of CBI vs. Rajesh Kohli & Ors. 92 of 118 pages 93 CBI case . No.23/11 the State by the Ld. Sr. PP for the CBI that this is a corruption case, in which, the convicts have been convicted, as they were operating as an organised racket and have caused illegal huge pecuniary loss to the National Insurance Company Ltd., Govt. of India Undertaking. That they have cheated the said company to the tune of Rs.
1,73,439/. They have, therefore, caused loss to the public exchequer of the said amount. It has further been stated that the amount, to the extent to which the Government has been cheated, was not a small amount as the case pertains to the period much prior to the year 2000, when it was quite a sizable and fat amount.
4. The State has further contended that the maximum prescribed substantive punishment with fine be handed over to all CBI vs. Rajesh Kohli & Ors. 93 of 118 pages 94 CBI case . No.23/11 the convicts, so that enough and clear message goes to one and all and especially to the potential offenders, who are in the waiting to commit such like frauds so that the punishment act as a deterrence and the intent of the legislature is fulfilled.
5. Convict Rajesh Kumar Kohli, has prayed that a lenient view be taken on the ground that the present case dates back to the year 2000. That he has faced a trial for all these years. That he had been regularly attending the Court. That he has an old mother and wife to support. That he had, of late, taken to practice law for quite sometime and that no useful purpose will be served by keeping him away from the society, in incarceration. He has sought probation as well.
CBI vs. Rajesh Kohli & Ors. 94 of 118 pages 95 CBI case . No.23/11
6. On behalf of the convict Ajay Sharma, it has been contended that he was 23 years of age at the time of commission of offence in this case. That he has a daughter of 13 years of age. That his wife, although, is gainfully employed and at times she has to travel in connection with her job and that no one is there to look after during that period his daughter. That his role was limited as he was only the partner of the claimant company and that his partner might have committed misdeeds as his firm was a partnership firm. It is pertinent to mention that whatever regarding partnership firm has been urged on behalf of this convict, was never substantiated as he led no evidence in this regard.
7. Convict Arvind Kumar Sharma has prayed for a lenient view on the grounds that he is CBI vs. Rajesh Kohli & Ors. 95 of 118 pages 96 CBI case . No.23/11 the sole earning member in his family and there is no one else to look after them. That the convict has faced the trial for a couple of years. That he has already stopped the business which had landed him in this case.
8. Convict Deepak Jain contended that he is the only male and earning member in his family. That he has 10 years old son. That he has already shut down the business of surveyor about 12 years back. He, therefore, prayed for the lenient view.
9. Convict V. K. Bhutani contended that till the date of conviction, he has been working in the same Department and that no departmental action was initiated against him for the offences committed in this case and that he is the only earning member in his family.
CBI vs. Rajesh Kohli & Ors. 96 of 118 pages 97 CBI case . No.23/11
10. All the convicts have, thus, prayed for taking a lenient view. They all have further prayed for release on probation.
11. The contentions, raised by the the convicts, have met stiff and very strong opposition on behalf of the State. It has been urged that convict Rajesh Kumar Kohli, the then public servant, is a convict before this Court, in as many as six different cases as he had illegally and dishonestly awarded false and fraudulent insurance claims exceeding Rs.15 lakhs that too in the year 19981999, when it was quite a big sum. It has, further, been stated on behalf of the State that being a public servant at the relevant time, convict Rajesh Kumar Kohli acted corruptly with full vigour, in false claims, one after the other. It has, therefore, been urged CBI vs. Rajesh Kohli & Ors. 97 of 118 pages 98 CBI case . No.23/11 that this convict is a habitual offender and deserves maximum punishment.
12. Similarly, it is stated that convict Vinod Kumar Bhutani is held guilty in more than one case. He too acted in pursuance to the criminal conspiracy and as a public servant, dishonestly processed and recommended false, forged and fabricated insurance claims in three cases and caused illegal pecuniary gains to the other convicts.
13. Regarding the convict Ajay Sharma, it is stated that he was the beneficiary of the fraudulent claim. That he pocketed the claim money, in this case, to which he was not legally entitled to. He has successfully cheated the National Insurance Company Ltd. alongwith other convicts. That he is not entitled to any mercy or compassion. CBI vs. Rajesh Kohli & Ors. 98 of 118 pages 99 CBI case . No.23/11
14. Regarding the convicts Arvind Kumar Sharma and Deepak Jain, it is stated that in pursuance to the systematic and well planned conspiracy, they forged reports/documents and acted in connivance with other convicts in this case.
15. It is further urged on behalf of the State that most of the pleas taken by the convicts are routine and stock pleas and in any case, in the case under the Prevention of Corruption Act, these pleas taken are not considered as mitigating circumstances. It has, therefore, been prayed that exemplary punishment be awarded to the convicts herein.
16. On behalf of the CBI, following case law have been cited:
(i) State V A Parthiban, AIR 2007 Supreme Court 51,
(ii) State V Ratan Lal Arora, AIR 2004 Supreme Court 2364 & CBI vs. Rajesh Kohli & Ors. 99 of 118 pages 100 CBI case . No.23/11
(iii) Ram Narain Poply Vs. CBI, AIR 2003 Supreme Court 2748
(iv) State of J & K Vs. Vinay Nanda, AIR 2001 SC 611.
(v) State Vs. Rattan Lal Arora (2004) 4 SCC 590.
17. On behalf of the convicts, following case law have been cited:
(i) State of UP V Sanjay Kumar, (2012) 8 Supreme Court Cases 537,
(ii) Kamaldin & Ors V. CBI, Crl. M.C. 1401/2010, (High Court of Delhi)
(iii) State of J & K Vs. Vinay Nanda, Manu/SC/0028/2001
18. At the very outset, it is observed that there is no quarrel over the settled propositions of law discussed in the aforesaid case law, cited by the parties.
19. The Hon'ble Apex Court in the case of State of Rajasthan Vs. Vinod Kumar, decided on, 18th May, 2012 (Criminal Appeal No. 1887) reiterated the law laid down in State of CBI vs. Rajesh Kohli & Ors. 100 of 118 pages 101 CBI case . No.23/11 J&K Vs. Vinay Nanda, AIR 2001 SC P 611, and observed that superannuation of the convict and the pendency of criminal trial for over a period of time cannot be treated a special reason to reduce the sentence.
20. In the same appeal quoting 'M B Joshi Vs. State of Maharashtra, AIR 2001 SC 147' the Hon'ble Apex Court observed that:
"It is the defect of the system that longevity of the cases tried under the Prevention of Corruption Act is too lengthy. If that is regarded as sufficient for reducing the sentence mandated by the Parliament legislative exercise would stand defeated."
21. It was observed by the Hon'ble Supreme Court in the case reported as State of J & K Vs. Vinay Nanda, AIR 2001 SC P 611, that :
"Corruption at any level, by CBI vs. Rajesh Kohli & Ors. 101 of 118 pages 102 CBI case . No.23/11 any person, of any magnitude, is condemnable, which cannot be ignored by the Judicial Courts, when proved. No leniency is required to be shown in proved cases under the Prevention of Corruption Act which itself treats the offences under it of a special nature to be treated differently than the general penal offences. The convicts of the offences under the Act are to be dealt with heavy hand and deterrant rod. No populous or sympathetic approach is needed in such cases."
22. It was further observed by the Hon'ble Supreme Court in the aforesaid case that :
"Accused facing trial since long; amount allegedly misappropriated already been CBI vs. Rajesh Kohli & Ors. 102 of 118 pages 103 CBI case . No.23/11 deposited; undergone departmental punishment; only bread earner in family;
wife and three children's dependence on him are the circumstance which do not constitute 'special reasons'."
23. It was observed by the Hon'ble High Court in the cases reported as Jai Bhagwan Vs. State (NCT of Delhi), 2008 150 DLT 46 (Delhi) and Ravinder Kumar Arora Vs. CBI Manu/DE/8816/2007 (Delhi) , that :
"It is a normal thing that 'trial' of the person is considered a period of 'agony' undergone by him. But we tend to forget the agony of the society and the complainant who dared lodge the complaint. The entire purpose of the legislature of sentencing the offenders stands defeated and that is the one reason CBI vs. Rajesh Kohli & Ors. 103 of 118 pages 104 CBI case . No.23/11 that wages of corruption are considered more attractive in this country. The person caught is not always a first timer corrupt. He may have been indulging into corrupt activities / practices for a long number of years. It is to his advantage that the trial is prolonged. He spends a fraction of amount, earned by corrupt practices on litigation and professionals to see that ultimately he makes Criminal Justice System a laughing stock. In this process, the entire legislative purpose of punishing a corrupt stands defeated.
24. It was held by the Hon'ble Supreme Court in the case reported as State of M. P. Vs. Shambhu Dayal Nagar, (2006) 8 SCC P 693, that :
"Corruption by public servant has become gigantic problem.
CBI vs. Rajesh Kohli & Ors. 104 of 118 pages 105 CBI case . No.23/11 It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. Large scale corruption retards the nation building activities and everyone has to suffer on that count."
25. It was observed by the Hon'ble High Court in the case reported as AIR 1961, Mysore P 49, that:
"Infliction of a lenient sentence will defeat the purpose of the P. C. Act."
26. It was observed by the Hon'ble Apex Court in the case reported as State of T. N Vs. Kaliaperumal, (2005) 12 SCC 473 and State Vs. Ratan Lal Arora, (2004) 4 SCC 590 that :
"Section 18 of the Probation of Offenders Act specifically bars the offence under PC Act from the purview of the Act."
CBI vs. Rajesh Kohli & Ors. 105 of 118 pages 106 CBI case . No.23/11
27. The convicts, therefore, cannot be enlarged on probation in this case relating to serious offences.
28. It was observed by the Hon'ble Supreme Court in the case reported as State of M. P. Vs. Ram Singh, AIR 2000 SC 870, that:
"Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to maliganise the polity of the country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS being incurable. The sociopolitical system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is CBI vs. Rajesh Kohli & Ors. 106 of 118 pages 107 CBI case . No.23/11 opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage."
29. Further, it was observed by the Hon'ble Supreme Court in the case law reported as Ankush Maruti Shinde Vs State of Maharashtra, AIR 2009 SC 2609 that:
" The social impact of the crime e.g. where it relates to offences against women, decoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest CBI vs. Rajesh Kohli & Ors. 107 of 118 pages 108 CBI case . No.23/11 cannot be lost sight of and per se require exemplary treatment.
Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats."
30. It was held by Hon'ble Supreme Court in the case reported as Mohd. A Hussain Vs. Asstt. Collector, Custom (Prevention) Ahmedabad, AIR 1998 SC 2143, that :
"If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. But this rule has no application if the transaction relating to CBI vs. Rajesh Kohli & Ors. 108 of 118 pages 109 CBI case . No.23/11 offences is not the same or the facts constituting the two offences are quite different.
Sentencing judge should try
to ensure that the totality of
the sentences is correct in the
light of all the circumstances
of the case."
"In arriving at an
appropriate sentence, the
court must consider, and
some times reject, many
factors. The court must
'recognise, learn to control
and exclude' many diverse
data. It is a balancing act
and tortuous process to
ensure reasoned sentence."
31. It was further held by Hon'ble Supreme Court in the case reported as A. B. Bhaskara Rao vs. Inspector of Police, CBI, Vishakapatnam, 2011(4) RCR (Criminal) 290 (SC) that :
CBI vs. Rajesh Kohli & Ors. 109 of 118 pages 110 CBI case . No.23/11 "in the case of corruption by public servant, long delay in disposal, quantum of amount of bribe and that the delinquent lost his job due to conviction etc., are not to be taken as mitigating circumstances for reduction of the sentence".
32. In the case of Siddarama and Ors. Vs. State of Karnataka, 2006 IV AD (Cri.) (SC) 78, it was held that:
"undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society can no longer endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in CBI vs. Rajesh Kohli & Ors. 110 of 118 pages 111 CBI case . No.23/11 which it was executed or committed etc."
33. It was further held in the case law reported as Kishan Dayal vs. State, 1958 Raj LW 596 that:
" A corrupt official is a menace to the society and far from helping in the proper functioning of the Government and implementing of the laws, brings the Government and the society at large into disrepute. It is through the agency of the public servants that the policy of the Legislature as well as of the Government is implemented.
It is through the public servants that crimes are detected and offenders are brought to book. It is through strictly honest and incorruptible public servants CBI vs. Rajesh Kohli & Ors. 111 of 118 pages 112 CBI case . No.23/11 that the welfare of the society can be ensured. If such public servants are open to corruption and coerce the public into paying them illegal gratification, the whole structure of the society would be upset and the policy of the Government and of the Legislature, howsoever, beneficial it may be, would gravely suffer. A public servant, therefore, once he is found to be guilty of accepting or obtaining illegal gratification, deserves no soft corner or indulgence from the Courts of Law."
34. It was held in the case reported as Madhukar Bhaskarrao Joshi vs. State of Maharashtra, 2001 Cr. LJ 175(SC): that:
"When corruption was sought to be eliminated from the polity all possible stringent CBI vs. Rajesh Kohli & Ors. 112 of 118 pages 113 CBI case . No.23/11 measures are to be adopted within the bounds of law. One such measure is to provide condign punishment.
Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was precisely the reason why the sentence was fixed as seven years and directed that even if the said period of imprisonment need not be given, the sentence shall not be less than the imprisonment for one year. Such a legislative insistence is reflection of Parliament's resolve to meet corruption cases with very strong hand to give signals of deterrence as the most pivotal CBI vs. Rajesh Kohli & Ors. 113 of 118 pages 114 CBI case . No.23/11 feature of sentencing of corrupt public servants. All public servants have to face very serious consequences. If on the other hand any public servant is given the impression that if he succeeds in protracting the proceedings that would help him to have the advantage of getting a very light sentence even if the case ends in conviction, its fallout would afford incentive to public servants who were susceptible to corruption to indulge in such nefarious practices with immunity. Increasing the fine after reducing the imprisonment to a nominal period can also defeat the purpose as the corrupt public servants could easily raise the fine amount through the same means."
35. I have thoroughly and carefully considered CBI vs. Rajesh Kohli & Ors. 114 of 118 pages 115 CBI case . No.23/11 the rival contentions. I have also examined the asserted mitigating and aggravating circumstances, pointed out by the parties. I am of the considered opinion that considering all the aspects of the matter, the following sentence shall be appropriate to meet the ends of justice and as such is awarded:
(i) All the five convicts herein are awarded sentence of three years rigorous imprisonment and a fine of Rs.5000/, in default, one month simple imprisonment, each, for the offence punishable under section 120B IPC.
(ii) Convict Ajay Sharma, who
fraudulently cheated the National
Insurance Company Ltd., to the tune of Rs.
1,73,439/, is sentenced to four years rigorous imprisonment besides a fine of CBI vs. Rajesh Kohli & Ors. 115 of 118 pages 116 CBI case . No.23/11 Rs.2 lakhs, in default, six months simple imprisonment for the offence punishable under Section 420 IPC. For the offence punishable under section 471 IPC read with section 468 IPC, convict Ajay Sharma shall suffer sentence of rigorous imprisonment for three years and six months and a fine of Rs.10,000/, in default, two months simple imprisonment.
(iii) Convicts Arvind Kumar Sharma and Deepak Jain are awarded sentence of rigorous imprisonment for three years and six months and a fine of Rs.10,000/ each, in default, two months simple imprisonment for the offence punishable under sections 468 IPC.
(iv) Convicts Rajesh Kumar Kohli and CBI vs. Rajesh Kohli & Ors. 116 of 118 pages 117 CBI case . No.23/11 Vinod Kumar Bhutani, who are convicts in several cases, are hereby awarded a sentence of four years rigorous imprisonment and a fine of Rs.25,000/, in default, three month simple imprisonment, each, for the offence punishable under section 13 (2) read with section 13 (1) (d) of the Prevention of Corruption Act, 1988.
36. From out of the fine imposed upon convict Ajay Sharma, if realised, a sum of Rs. Two Lakhs be paid to the complainant, NIC Ltd, as compensation.
37. All the aforesaid sentences shall run concurrently.
38. Benefit of section 428 Cr.P.C. is extended to the convicts.
CBI vs. Rajesh Kohli & Ors. 117 of 118 pages 118 CBI case . No.23/11
39. A copy of the judgment and order on sentence be given to all the convicts, free of cost, forthwith.
40. File be consigned to record room. Announced in the open court ( N. K. Kaushik ) on 7th December, 2012 Special Judge (PC Act) CBI Dwarka Courts CBI vs. Rajesh Kohli & Ors. 118 of 118 pages