Delhi District Court
4. Sanction For Prosecution Was Granted ... vs V. Dea Rajan (Crl.). A. 288 Of 2001 (20070 ... on 7 June, 2012
IN THE COURT OF SHRI SANJEEV JAIN: SPECIAL JUDGE (PC ACT), CBI2 NEW DELHI DISTRICT, PATIALA HOUSE COURT, NEW DELHI CC No. 22/2009 RC No. 1A/2009/ACUIVCBI/New Delhi u/s. 420, 468,471 of IPC & u/s 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 Central Bureau of Investigation Versus Bhudev Singh Date of FIR : 23.04.2008 Date of filing of Chargesheet : 02.07.2009 Arguments heard on : 29.05.2012 Date of Judgment : 07.06.2012 Appearance: For prosecution : Shri A.K. Gaba, Sr. PP and Ms. Geeta Singh, PP For accused : Sh. Hameed Ahmed, Advocate J U D G M E N T
1. In brief, this case was registered on 23.04.08 PS, SP, CBI, ACB New Delhi u/s. 420.468,471 IPC and 13(2) r/w 13(1)(d) PC Act, 1988 on the basis of source information against accused Bhudev Singh who was working as Private Secretary to the Superintendent of Police (SP) CBI, ACB, New Delhi.
As per allegations, accused availed following three personal loans:
(i) Personal loan of Rs. 1,25,000/ from Vijaya Bank, Defence Colony, New Delhi on 21.05.2004.
(ii) Personal loan of Rs. 1,00,000/ from Syndicate Bank, Sarojini Nagar Branch, on 15.12.2004.
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(iii) Personal loan of Rs. 1,00,000 from Dena Bank, Scope Complex, New Delhi on 13.05.2005.
1.2. It is alleged in the chargesheet that accused Bhudev Singh while working as public servant being the private secretary to SP, CBI abused his official position as such public servant by corrupt or illegal means and availed the above mentioned three personal loans by dishonesty inducing the bank authorities by submitting forged/ false documents (i.e. undertakings purportedly signed by SP, CBI Sh. S. C. Tiwari in favour of the banks to deduct the installments of respective loans from the salary of accused) and forged the said undertakings for purpose of cheating and used the said forged undertakings as genuine, knowingly or having reason to believe the same to be forged documents.
1.3. It is alleged against accused that the undertakings furnished by him to avail above mentioned three personal loans from the banks bears his handwritings and impressions of forged official seals of the SP, CBI. 1.4. Sanction for prosecution was granted u/s. 19 of Prevention of Corruption Act, 1988 by the competent authority .
2. After completion of investigation and receipt of sanction for prosecution, chargesheet was filed u/s. 420, 468, 471 IPC and u/s. 13(2) r/w13(1)(d) of Prevention of Corruption Act, 1988.
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3. After filing of chargesheet, cognizance was taken. Copies were supplied to accused. After hearing arguments, charge was framed on 16.01.2010 u/s. 468,471/420 IPC and u/s. 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. Accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined as many as 24 witnesses whereas sanctioning authority Sh. Ashwani Kumar, Retired Director CBI, was examined as CW1.
4.1. PW4 Sh. S. Shashidhar Hegde, Asst. General Manager, Vijaya Bank, Defence Colony, New Delhi deposed that he had processed and sanctioned the personal loan to accused Bhudev Singh of CBI during his posting in Defence Colony Branch, New Delhi. He recognized accused Bhudev Singh present in the court. He stated that accused came in the bank alognwith guarantor Sh. Vinod Kumar. He deposed that a loan was sanctioned to accused Bhudev Singh. He proved loan application Ex. PW4/A and photograph of accused Bhudev Singh and gurantor Sh. Vinod Kumar at point A and B on the said application and identified the signatures of Bhudev Singh and Sh. Vindod Kumar at point D and E respectively. He stated that alongwith his loan application accused furnished self attested copies of his identity card Ex.PW4/B, salary certificate Ex.PW4/B2 and notification in resepct of accused Bhudev Singh Ex.PW4/B4. PW4 also deposed that accused Bhudev Singh furnished the certificate of his posting Ex.PW4/B4 and undertaking by employer for remitting the installments Ex.PW4/B5. He further deposed that loan become irregular and was classified as NPA (Non Performing 3 Assets), and the branch had filed recovery suit against accused Bhudev Singh. In his cross examination PW4 admitted that accused Bhudev Singh had repaid the loan after a settlement with the bank and proved no due certificate issued by Vijaya Bank Ex. PW4/DA. PW4 also stated that loan was sanctioned under the personal loan scheme of salaried employees and scheme covered the salaried employees, businessmen and professionals.
4.2. PW14 Sh. Naburun Bhattachaerjee appeared in the witness box and deposed that memo Ex.PW14/A dated 04.09.2008 bears his signatures and the documents mentioned in the said memos were seized by Inspector S. S. Yadav of CBI which are already Ex.PW4/B1 to Ex.PW4/B5. He stated that documents were collected by him from the concerned court of Ld. Civil Judge, Tis Hazari Courts, Delhi and were handed over to CBI.
4.3. PW18 Sh. Vinod Kumar deposed that he was working as Cashier in CBI, ACB, New Delhi. Accused Bhudev Singh was known to him as he was posted as private secretary to SP CBI. He stated that he stood as guarantor for accused in respect of his personal loans with 34 banks. He also stated that he stood as guarantor for accused for his personal loan in Vijaya Bank and proved his signatures and photograph on the loan application Ex.PW4/A, guarantee agreement Ex PW3/K6, general agreement Ex.PW3/K1, photocopies of his identity card Ex.PW18/1 and salary slip Ex.PW3/H. In his cross examination, he further stated that he 4 got a chance to see the signatures of Sh. Ajay Kumar who was posted as Dy. SP in CBI, ACB Branch. He stated that as suggested, on Ex.PW1/6 at point A it may be the signatures of Sh. Ajay Kumar. PW18 also stated that whenever a bank required undertaking from CBI in respect of sanction of any loan to an employee, their office usually gave undertakings in writing to deduct the salary of applicant/person. He also deposed that it was normal practice in CBI that in the absence of SP concerned, certain unimportant routine documents were signed by Dy. SP attached to SP concerned.
4.4. In respect of personal loan taken by accused Bhudev Singh on 15.12.2004 from Syndicate Bank, prosecution has examined PW3 Sh. G. P. S. Angroola, Asst. General Manager, Syndicate Bank, who stated that accused Bhudev Singh (present in the court) came with one Sh. Vinod Kumar to get a personal loan of Rs. 1,00,000/ and loan was sanctioned by him after completion of formalities. He proved loan application Ex.PW3/A, signatures of accused Bhudev Singh at point A and B and that of guarantor Sh. Vinod Kumar at point C. PW3 proved his sanction at point D on the application Ex. PW3/A and identify his handwritings and signatures. He stated that alongwith loan application, accused also furnished self attested copies of undertaking letter dated 03.12.2004 Ex.PW3/B, employment certificate Ex.PW3/C, photocopy of identity card Ex.PW3/D, election voter card Ex. PW3/E, copy of form 16 for the year 200405 Ex.PW3/F, residence proof ex.PW3/G, pay slip of guarantor Sh. Vinod Kumar Ex. PW3/H and high school certificate for age proof 5 Ex.PW3/J. PW3 also proved general agreement signed by accused Bhudev Singh Ex.PW3/K1, request letter undertaking by accused Ex.PW3/K2, authorization letter Ex.PW3/K3, consent letter signed by accused Ex.PW3/K4, receipt of receiving loan Ex.PW3/K5, guarantee agreement signed by guarantor Sh. Vinod Kumar Ex.PW3/K6, undertaking letter signed by Sh. Vinod Kumar Ex.PW3/K8, consent letter signed by Vinod Kumar Ex.PW3/K9. PW3 further deposed that before sanctioning the loan, he made a telephonic call to SP, CBI, New Delhi to confirm the authenticity of undertaking Ex.PW3/B. The receiver of the phone on the other side (after inquiry about his identity) told on phone that he was SP Sh. S. C. Tiwari and confirm issuing of undertaking Ex.PW3/B. He stated that after few months, the payments were not made by accused. The matter was took up with competent authority to deduct the installments from the salary of accused. But, the competent authority in CBI denied of having issued undertaking Ex.PW3/B. He also proved his letter dated 23.06.2005 written to SP CBI for recovery of loan as Ex.PW3/L and letter dated 20.06.2005 written by him to guarantor Sh. Vinod Kumar for repayment of loan as Ex.PW3/L1. PW3 proved letter Ex.PW3/L3 dated 19.09.2005 from Sh. S. C. Tiwari intimating that no undertaking (Ex. PW3/B) was issued by him. In cross examination, PW3 stated that the loan was sanctioned under personal loan scheme and this type of loan can be sanctioned to any person whether private or government servant. He also stated that total loan amount had already been repaid by accused and account had been closed.
6 4.5. PW6 Puran Chand, Manager Syndicate Bank was also examined to prove the facts pertaining to the loan by accused from Syndicate bank. PW6 also supported the prosecution case on the document exhibited by PW3. PW6 stated that loan had already been repaid and account has since been closed on 16.02.2008. He deposed that it was personal loan which could be availed by private person also.
4.6. To prove the fact that accused availed personal loan from Dena Bank, PW1 Sh. Charan Singh, DGM, Dena Bank, was examined. PW1 stated that he was posted as Chief Manager in Scope Complex Branch of Dena bank form 20.10.2003 to 10.11.2007. He also stated accused came with a lady namely Ms. Anu and requested for personal loan of Rs. 1,00,000/ for the marriage of his sister. PW1 proved loan application Ex.PW1/A, self attested photocopies of High School Certificate Ex.PW1/B, form 16 for the year 200304 and 200405 Ex. PW1/C and Ex.PW1/D, original form Ex. PW1/E, account opening form Ex. PW1/F. PW also stated that accused submitted election card Ex.PW1/G, copy of DL Ex.PW1/H, copy of ID card Ex. PW1/J , salary slips Ex.PW1/K and Ex. PW1/L . He stated that employer's deduction certificate Ex. PW1/M was submitted by accused alongwith letter Ex.PW1/N whereby he intimated his employer and requested to grant deduction certificate. He stated that after processing the loan application, loan was granted. PW1 also proved General Lien Ex. PW1/P , undertaking by accused Ex.PW1/Q, letter of guarantee signed by Ms. Anu Ex.PW1/R, letter of lien by guarantor Ex.PW1/S, sanction letter signed by him and accepted by 7 accused Bhudev Singh Ex. PW1/, photocopy of form 16 of Ms. Anu Puri Ex.PW1/U, pay slip of Ms. Anu Ex.PW1/V, residence proof of accused Ex.PW1/W, declaration submitted by accused Ex.PW1/X, declaration submitted by guarantor Ms. Anu Ex.PW1/Y, application containing purpose of loan Ex.PW1/A1, computer generated copy of statement Ex.PW1/Z and computer generated statement of saving bank account of accused Ex.PW1/Z1. PW1 also proved letter dated 17.06.2005 submitted by accused issued by SP, CBI, ACB, New Delhi Ex.PW1/Z2 and photocopy of forwarding letter Ex.PW1/Z3.
In cross examination PW1 stated that letter dated 26.11.2009 has been issued by Sh. Anil, Manager of the bank and according to the letter, the entire loan had been repaid.
4.7. In order to prove loan transaction from Dena Bank, PW9 Ct. Anu Kumari was examined who stated that she stood as guarantor for accused for a personal loan taken by accused from Dena Bank. She proved the relevant documents. PW9 was cross examined by Ld. Sr. PP for CBI and then by Ld. defence counsel. In cross examination, she sated that every SP had Private Secretary and whenever a document is handed over to staff by an officer, no signatures were obtained.
4.8. To prove the loan transaction of accused from Dena Bank, PW13 Dr. Manorama Mishra, Asst. General Manager, Dena Bank was examined. He stated that vide letter Ex.PW13/A written by him to Inspector of Police, he sent original documents from bank records which are already 8 Ex.PW1/A toEx.PW1Z2.
4.9. PW19 Sh. Vishwanathan Kakkara, office Superintendent in CBI/ACB/Bangalore appeared in the witness box to prove sanction granted by Sh. Ashwani Kumar the then Director of CBI. PW Sh. Ashwani Kumar was summoned u/s. 311Cr. P. C and was examined as CW1. Sh. Ashwani Kumar deposed that accused was working as Private Secretary in CBI. CW1 deposed that being the Director of CBI he was appointing as well as disciplinary authority in the case of accused and was competent to grant sanction for prosecution against him u/. 19 of PC Act, 1988. He stated that file pertaining to grant for sanction of accused was put up before him alongwith documents, statement of witnesses u/s. 161 Cr. P. C, report of SP and other material. He stated that after considering entire material sent to him, he granted sanction for prosecution Ex.PW19/A. During cross examination, CW1 stated that he discussed the matter with the various officers concerned with the case. The draft of sanction order was put up before him, as per his instructions and thereafter, after making suitable alternations and corrections he finalized the same. He also admitted that draft sanction order was vetted by their law officers. 4.10. In order to prove questioned handwritings, handwriting expert PW16 Sh. Abhimanyu Kumar from GEQD, CFSL, Chandigarh was examined and he proved his report Ex.PW16/A. PW22 Sh. N. K. Aggarwal (Retired) PSO, CFSL, CBI was also examined as handwriting expert who proved his report Ex.PW22/A. 9 4.11. In order to prove the material allegations and circumstance of the case other witnesses were also examined by prosecution.
PW2 Binod Kumar, Establishment clerk, CBI stated that accused was posted as Private Secretary in ACB, CBI, New Delhi and he worked with him in the same branch. After going through the personal file of accused he proved the personal file collectively as Ex.PW2/A. He stated that there is no intimation from the accused to the department regarding taking loan from any bank. PW2 also proved letters Ex.PW2/B, Ex.PW2/C, Ex.PW2/D, Ex. PW2/E,Ex. PW2/F, Ex.PW2/G, Ex.PW2/H, Ex.PW2/J and Ex.PW2/K which are letters from different banks about taking loan by accused Bhudev Singh and non payment there of. PW2 also proved memos Ex.PW2/L1 to Ex.PW2/L10 which were issued to accused about loans taken by him from various banks.
PW2 stated that one reply dated 19.03.2007 was submitted by accused to SP, CBI regarding loans taken by him from various banks which was proved as Ex.PW2/M. 4.12. PW5 Lady Ct. Navneet Kaur was posted in ACB/CBI,New Delhi. She stated that accused (present in the court) was known to her who was working as private secretary. She stated that on her joining, she was attached to accused and was to sit in his room. On 12.05.2005, accused asked her in presence of Sh. Heera Singh and Ct. Ms. Annu for her signatures on a document Ex.PW1/M and she signed the same on the asking of accused Ct. Annu and Heera Singh. During cross examination, she stated that Ex.PW1/N is a request letter signed by accused and 10 addressed to department requesting that he has taken a loan and his loan installments may be remitted to the bank from his salary. She was not aware whether the letter Ex.PW1/N was submitted by accused to the department.
4.13. PW7 Sh. Trilok chand Meena, LDC,ACB, CBI, New Delhi stated that he was performing duty of dak dispatcher at that time. Accused was known to him. He stated that dispatch register Ex.PW7/A from the period from 18.10.2004 to 31.12.2004 has been seen by him. He also stated that letter Ex.PW3/B, was not dispatched by him. The dispatch no. mentioned at points Y and Y1 on the said letter bears seal impressions of the seal being used in their office. PW7 was cross examined by Ld. Sr. PP on certain points and then by Ld. Defence Counsel. During cross examination, he stated that in some cases, in the absence of SP, the documents could be signed by Dy. SP also. He also stated that every SP had his dispatch register apart from the dispatch register maintained in the branch. He also stated that concerned SP may dispatch letters in its own dispatch register and in such cases the dispatch of the letter may not be recorded in the dispatch register of the branch. He sated that Sh. Ajay Kumar was posted as DSP in the branch. The specimen signatures of DSPs are not maintained in the record. All three SPs used to maintain their separate seals by name as well as by designation. PW7 also deposed that there was no register to maintain specimen impressions of seals.
11 4.14. PW10 Sh. Ajay Kumar, DSP, CBI, EOW, stated that he was posted as DSP in CBI, ACB, New Delhi during April 2004 to August 2005 and in that period Sh. S. C. Tiwari was his SP. He stated that accused Bhudev Singh was Private Secretary to SP Sh. S. C. Tiwari. PW10 also stated that he can identify the signatures of Sh. S. C. Tiwari as he had worked under him and had seen him while signing and writing. He deposed that undertakings Ex.PW3/B, Ex.PW1/M and Ex.PW4/B5 neither bears the signatures of Sh. S. C. Tiwari nor his signatures. In cross examination, PW10 stated that some correspondence from ACB could be signed by DSP in the absence of SP or the additional SP. He also stated that no record of specimen signatures/initials of DSP's was maintained during relevant time until and unless he was working as DDO. He stated that signatures at point A on Ex.PW3/B, Ex.PW1/M and Ex.PW4/B5 were illegible and English letters were not readable in the signatures. PW10 denied the suggestion that he deliberately and knowingly did not give his specimen signatures in the manner, the questioned signatures were written in the said undertakings.
4.15. PW18 Sh. S. C. Tiwari, stated that from 29.12.2003 to 31.12.2005, he was posted as SP, ACB, CBI, New Delhi and accused was working as Private Secretary. He stated that he had never issued any undertaking in favour of accused to Syndicate Bank or Dena Bank or Vijaya Bank and the said undertakings does not bear his signatures. PW17 stated that his general stamp as SP was being kept by his steno whereas the stamp with his name was being kept by him. He personally did not keep specimens 12 of seals. During cross examination, he admitted that Sh. Ajay Kumar used to sign "in his own name" on behalf of him on certain correspondence, but without his authorization. He deposed that at one instance, Sh. Ajay Kumar had signed in his absence on behalf of him and he instructed Sh. Ajay Kumar not to sign in such fashion though no formal memo was issued to him.
4.16. PW11Ms. Suchitra Sangar was posted in CBI, ACB, New Delhi on deputation. She stated that seizure memo Ex. PW11/A bears her signatures and by the said seizure memo, Inspector Surender Singh Yadav seized two rubber stamps of Superintendent of Police. She proved the rubber stamps of Superintendent of Police as Ex.P1 and P2. During cross examination, she stated that rubber stamps Ex.P1 and Ex.P2 (used by the PA Room of SP, and SP himself) were handed over to Inspector Surender Singh Yadav in July 2008. She was not aware whether there was any record in the office about the use of rubber stamps. She stated that she cannot say how new rubber stamps were got prepared in the cases of lost rubber stamps.
4.17. PW12 Sh. Satdev Singh was posted as Head Constable in ACB, CBI, New Delhi . He proved seizure memo dated 21.08.2008 Ex. PW12/A by which the rubber stamp was seized by Inspector S. S. Yadav. In cross examination, he stated that he was was looking after the maintenance of building as Caretaker he was custodian of rubber stamps. He deposed that only one rubber stamp bearing impression of "Superintendent of 13 Police CBI ACB, New Delhi" was in his custody which he used to put on official bills. He stated that every SP was supported with his own official Private Secretary and stenographers. Private Secretaries and Stenographers were keeping the custody of official seals of respective SPs.
4.18. PW15 Smt. Vimla Devi was posted as LDC in CBI, ACB, New Delhi in Diary Section. She proved seizure memo Ex.PW15/A and stated that a rubber stamp Ex. P3 (A28) was seized from her by Inspector S. S. Yadav. She stated that seal was used in dairy section. During cross examination, she stated that private secretaries and stenographers of SPs used to come in diary section and put the above mentioned seal on their correspondence.
4.19. Sh. Rohit Dhingra was wroking as Sr. Finance Officer in Housing and Urban Development Corporation, Lodhi Road, New Delhi. He stated that in June 2008, he was called in CBI office and specimen writings/ Signatures of accused were taken in his presence by Inspector S. S. Yadav which bears his signatures at point B on all the pages and are Ex.PW16/B6 to Ex.PW16/B23.
4.20. Sh. Barham Dev Kanwar was working as Executive HUDCO, Lodhi Road, New Delhi. He stated in June 2008, he went to CBI office, New Delhi and specimen signatures of accused Ex.PW16/B24 to B38 were taken in his presence.
14 4.21. PW23A Sh. Anil Nijhawan was posted as Sr. Accountant in Lok Nayak Bhawan, New Dlehi. He stated that in the year 2008, he was called in the office of CBI where he was told that the person present was Bhudev Singh. Some papers were prepared and he was asked to sign the same. He stated that all the 38 pages Ex.PW23A/A (D38) bears his signatures and were prepared in his presence. Accused gave his handwriting as per dictation/instructions of CBI officers.
4.22. PW23 Inspector Surender Singh Yadav was IO of the case who supported the prosecution case on material points and proved the relevant documents. During cross examination, PW23 admitted that he did not investigate the aspect whether DSP Sh. Ajay Kumar used to sign some unimportant correspondence in the absence of SP concerned of CBI, New Delhi. He admitted that specimen signatures S1 and S2 given by DSP Sh. Ajay Kumar are not in the manner as is the questioned signatures Q3. Other signatures and handwritings are also not in the same fashion as are questioned signatures/handwritings. IO PW23 also admitted that specimen signatures of accused appears to be in the same manner as are the questioned signatures. PW23 stated that vide letter dated 27.10.2008 expert from GEQD requested for "fresh admittedly genuine as well as specimen writings of Sh. Ajay Kumar containing similar letters and their combinations as occurring in Q1, Q2 and Q5 for further examination". He also admitted that further handwriting/signatures of Sh. Ajay Kumar were neither taken by him nor were sent to GEQD in terms of letter dated 27.10.08. He voluntarily stated that fresh admitted signatures 15 of Sh. Ajay Kumar and specimen signatures of accused were sent to CFSL, New Delhi. In reply to court question it was clarified that he talked to the officials of GEQD Chandigarh and it was reported that opinion would take some time whereas opinion could be given on fresh admitted signatures/handwritings in shorter time by CFSL, Delhi. Therefore, in instead of GEQD, Chandigarh, he sent the admitted and questioned handwritings of Sh. Ajay Kumar and accused Bhudev Singh to GEQD, New Delhi. IO PW23 also deposed that at relevant time, official seals of SPs bearing similar impressions were used by SP(I), SP(II) and SP(III) and were kept in common administrative office of 3 SPs. He also admitted that generally, specimen seal impressions are kept in the office record with specific dates between which the seals had been in use. He stated it was found that no such record was being maintained in ACB, Branch of CBI, New Delhi about specimen seal impressions. 4.23. IO PW23 admitted that he seized the official seals in the year 2008 whereas alleged offence was committed in or around year 200405. IO stated that he tried to ascertain, whether the seals used by SP Sh. S. C. Tiwari in or around 200405 were continuously in use till the year 2008 or same were changed or reissued, but this fact could not be clearly ascertained from the records. He stated that he was not aware whether specimen signatures of the officers of the rank of SP or below were being maintained in records and he did not investigate the said aspect.
5. Incriminating evidence was put to the accused in his statement u/s. 16 313 Cr. P. C. Accused admitted that he was a public servant and working as private secretary attached to Sh. S. C. Tiwari, SP, ACB, CBI. He also admitted that he availed three personal loans i.e. from Vijaya Bank, Syndicate Bank and Dena Bank and furnished guarantors. In his statement he did not dispute that alongwith his loan applications for personal loans to above mentioned three banks, he furnished the documents proved by the witnesses. He also admitted that undertakings from the department were furnished to avail the above mentioned three loans from the banks. In defence, he stated that rubber seals of the SP, CBI was being kept separately by the SP concerned or their private secretaries. Apart from the dispatch register of the office, separate dispatch registers were being maintained in the office of each SP. Accused denied the incriminating evidence pertaining to forgery of three undertakings for the purpose of cheating. Accused stated that undertakings were signed by Dy. SP, Sh. Ajay Kumar in the name of SP Sh. S. C. Tiwari as the Dy. SP were used to sign unimportant correspondence in the absence of SP. Accused also denied the incriminating evidence pertaining to the abuse of official position as public servant by illegal means or otherwise and the allegations of dishonest and fraudulent intention. Accused stated that he is innocent and has been falsely implicated by the Senior officers of CBI.
6. No witness was examined by accused in his defence.
7. I have heard the Ld. Sr. PP for the CBI and Sh. Hameed Ahmed, 17 Adv. for accused Bhudev Singh. I have carefully gone through the charge sheet, testimony of witnesses, documents proved on record and throughly considered the respective submissions of Ld. Sr. PP and Ld. defence counsel.
8. Sanction for prosecution It has been deposed by more than one PWs that accused was working as private secretary attached to SP Sh. S. C. Tiwari, SP, CBI and was a public servant. This aspect has not been disputed by accused and has been admitted in his statement u/s. 313 Cr. P. C.. The sanction for prosecution was granted by CW1 Sh. Ashwani Kumar, the then Director of CBI. Sanction order Ex.PW19/A has been duly proved by CW1 which reflects that the report of SP, statement of witnesses u/s. 161 Cr.P. C., the documents and other material was placed before him for considering the sanction for prosecution against accused. He consulted officers concerned and law officer. After considering the material, CW1 granted sanction Ex.PW19/A. Ld. Defence counsel submitted that sanction was granted without application of mind because the draft of the sanction order was vetted by law officer.
In support of contention Ld. Defence counsel cited State Vs. V. Dea Rajan (Crl.). A. 288 of 2001 (20070 RDTN 1683 (27.04.2007). This case was decided by Hon'ble High Court of Madras. In cross examination, it was admitted by the sanctioning authority that he was satisfied on basis of the report of the legal advisor and therefore, 18 granted the sanction for prosecution. In these circumstances, it was held that sanction for prosecution was granted mechanically on the opinion given by legal advisor.
8.1 In my opinion this case is not applicable in the facts and circumstances of the present case. CW1 was the Director of CBI at that time. He clearly stated that he consulted the officers concerned. Though draft sanction order was vetted by the legal officer but he finalized the same after making necessary corrections. CW1 has also stated that documents, statement of witnesses and report of SP was placed before him and he granted sanction after going through the material on record. Sanction order Ex.PW19/A itself reflects that entire material was considered by CW1 before granting sanction for prosecution of accused.
9. From the testimony of prosecution witnesses it has been convincingly proved that accused availed personal loans from Vijaya Bank , Dena Bank and Syndicate Bank and furnished loan applications and other supporting documents. It has also been established that applicant produced guarantors before the banks to avail above mentioned three loans and guarantors also furnished documents. Loan applications and documents furnished by accused and guarantors has been duly proved on record. This fact has also not been disputed by accused during cross examination of PWs and even in his statement u/s 313 Cr. P. C.
10. The main dispute is pertaining to undertakings Ex.PW3/B, 19 Ex.PW1/M and Ex. PW4/B5. It is alleged by prosecution that these three undertakings were submitted by accused before respective banks to avail personal loans by forging the signatures and official seal impressions of SP Sh. S. C. Tiwari. Accused stated that Sh. Ajay Kumar Dy. SP attached to SP Sh. S. C. Tiwari used to sign the unimportant correspondence in absence of Sh. S. C. Tiwari and three undertakings were signed by him in ordinary course of official working.
11. Ld. Sr. PP submitted that PW17 Sh. S. C. Tiwari and PW10 Sh. Ajay Kumar have clearly stated that three undertakings had not been signed by them. The report of handwriting experts proved that format of undertakings including date, dispatch no. , particulars of the banks have been found similar to the specimen and admitted handwritings of the accused. Ld. Sr. PP further submitted that as per report of two handwriting experts PW16 and PW22 it has been proved that the official seals used on the undertakings did not tally with the specimen seals which proves that seal impressions were forged by the accused. Ld. Sr. PP further explained that relevant entry of the undertakings were not found in the dispatch register and this fact has been clearly proved by PW7. If the undertakings would have been issued genuinely, entries would have been found in the dispatch register. It was also submitted by Ld. Sr. PP that PW2 has clearly established that as per personal file Ex. PW2/A, no intimation of loan was given by accused to the department. Ld. Sr. PP submitted that the testimony of witnesses, circumstances of the case, reports of the handwritings experts clearly proves that accused had 20 forged the three undertakings to avail the loans from the three banks.
12. Ld. Defence counsel controverted the submissions. It was submitted that prosecution has failed to prove its case against accused beyond reasonable doubt due to following reasons:
12.1. Though accused has reported the IO during investigation that three undertakings were signed by DSP Sh. Ajay Kumar for SP Sh. S. C. Tiwari, proper investigation was not carried out to determine, whether three undertakings bears the signatures of DSP Sh. Ajay Kumar or accused or somebody else. Handwriting expert has not given any opinion in respect of the disputed of signatures of Sh. S. C. Tiwari. Despite request of handwriting expert, the handwritings and signatures of Sh. Ajay Kumar were not sent in the same manner and pattern as were the questioned signatures of Sh. S. C. Tiwari. From the report of handwriting experts PW16 and PW22 neither the authorship of the questioned signatures of Sh.S. C. Tiwari on undertakings has been established nor the possibility of signatures in the handwriting of Sh. Ajay Kumar could be eliminated. 12.2. Ld. Defence counsel submitted that DSP Sh. Ajay Kumar has denied his signatures on the undertakings whereas accused had stated that the undertakings were signed by him on behalf of Sh. S. C. Tiwari.
There are two versions on this material fact. The benefit of doubt should go to the accused. Ld. Defence counsel submitted that as per testimony of PW3, IO Inspector Surender Singh Yadav seized the disputed questioned 21 seals of SP in the year 2008 whereas alleged offence was committed in or about year 2004. From the testimony of PW23 it could not be established, whether official seals (sealed by IO and sent for examination to the expert) were the same seals which were being used at relevant time in or around year 2004. Therefore, it cannot be said that the forged seals impressions were used on the three undertakings.
13. I have carefully considered the three undertakings Ex.Pw3/B, Ex.PW1/M and Ex.PW3/B5. Careful perusal of these undertakings reflects that one portion of the said undertakings is in the form of application/request on behalf of employee/borrower to his department. Other part in the form is for the department to the bank to deduct the installments of the loan from the salary of the employee. Ld. Sr. P P submitted that except questioned signatures of Sh. S. C. Tiwari on the undertakings, all other handwritings are proved in the handwritings of the accused. Explanation of the accused is that format of application/undertaking is required to be filled in the handwriting of the employee and therefore, the same was filled by him. The facts of the case are that accused was working as private secretary to the SP Sh. S.C. Tiwari. As per the testimony of witnesses, there is ample evidence on record that separate seals of the SPs were being kept in the office of SPs by their stenographers and private secretaries. In these circumstances of the case, the handwriting of accused (in different columns of the undertakings) does not conclusively prove that he had forged the undertakings. At the maximum, his handwritings are in respect of the 22 date, particulars of the bank, account no. etc. which in the circumstances of the case could have been filled by the accused being the applicant as well the private secretary of the same SP concerned. The undertakings Ex.PW3/B, Ex.PW1/M and Ex.PW3/B5 can be proved as forged in two situations. First, if it is proved that the undertakings has been signed by accused or somebody else at his instance. Second, by eliminating every possibility of bearing signature in the handwritings of either by SP Sh. S.C. Tiwari or Sh. Ajay Kumar. From the reports of the handwriting experts, the handwritings of accused has not been established in respect of the questioned signature of Sh S. C. Tiwari on the undertakings. As the specimen and admitted handwritings DSP Sh. Ajay Kumar was not in the same manner and pattern as were the questioned signatures of Sh. S. C. Tiwari, no opinion could be given by handwriting experts. Despite request from the handwriting expert of Chandigarh, fresh specimen and admitted handwritings of Sh. Ajay Kumar was not sent to Chandigarh or to the CFSL expert of New Delhi. As no opinion has been given whether the questioned signatures of Sh. S. C. Tiwari on the undertakings is in the handwriting of Sh. Ajay Kumar or not, the possibility of questioned signatures in the handwriting of Sh Ajay Kumar could not be convincingly eliminated.
14. There are two versions one by Sh. Ajay Kumar and other by accused and none of the version finds any corroboration from the reports of the handwriting experts or any other source. In my view, in respect of the questioned signatures on the undertakings, two equally plausible 23 views are possible that the questioned signatures may be in the handwritings of accused or in the handwritings of Sh. Ajay Kumar or someone else.
15. It was stated by IO PW23 that questioned official seals of SP, ACB, CBI were seized by him in the year 2008 from his office whereas the alleged offence was committed in or around year 200405. PW23 stated that it could not be ascertained during investigation whether after the year 200405, the seals were replaced or reissued. In view of the testimony of IO, it cannot be concluded that official seals of SP seized by IO in the year 2008 were the same seals as were used at the relevant time in the year 200405. Therefore, the reports of the handwriting expert (on the seals impressions that it does not tally with the questioned seal impressions of the undertakings) does not prove anything relevent.
16. It was admitted by PW7 that one dispatch register was maintained in the branch by him and separate dispatch registers were also being maintained in the office of each SP. As per the testimony of PW23, dispatch registers maintained in the office of SP Sh. S. C. Tiwari at relevant time in or around year 200405 were neither seized nor investigated. The plea of the accused was that entries pertaining to undertakings were made in the dispatch register maintained in the office of Sh. S. C. Tiwari. As the registers maintained in the office of SP could not be seized, convincingly, it cannot be said that disputed undertakings were sent to the bank without any entry in the dispatch register. In the 24 facts and circumstances of the case, the version of the accused may be possible that entries might have been made in the dispatch register maintained in the office of SP Sh.S. C. Tiwari. Therefore, dispatch register maintained by the branch does not find any mention about the entries of the disputed undertakings.
17. In my opinion, it cannot be concluded beyond reasonable doubt that three undertakings Ex.PW3/B, Ex.PW1/M and Ex.PW3/B5 had been forged by accused himself or through some other person.
18. The other aspect of the case is, whether dishonest and fraudulent intention is proved against accused?
19. The main witnesses from the three respective banks have clearly stated that these were personal loans which could he granted to a private person subject to furnishing the guarantors. There is ample evidence on record that for all the three loans, guarantors were produced by accused. The witnesses from all the three respective banks had clearly stated that all the three loans had already been repaid by the accused. There is evidence on record that on the request of employees such undertakings were being furnished by the branches of the CBI for remitting installments of the loans from the salaries of employees. When a personal loan is taken by government servant from a bank, he makes himself liable to repay the loan and for the legal action in case of default of payment of loan. Accused was not going to receive anything extra or any concession. 25 Therefore, in the circumstance of the case, it cannot be said, that accused had any dishonest and fraudulent intention while taking loans.
20. Whether accused had misused his official position being public servant?
There is no allegation that accused demanded for any favour or concession in respect of rate of interest or any other term and condition of the personal loans. There is nothing to accept that accused has assured any of the bank or its officials to give any favour or concession in his official capacity. In the circumstances of the case, it cannot be accepted that accused had any dishonest and fraudulent intention or he had abused his official position as such public servant by taking personal loans from private sector banks.
21. In view of the testimony of PWs from three respective banks, personal loans could have been sanctioned to a private person. Therefore, loans could have been sanctioned to accused even without undertaking from the department. Otherwise also, by issuing the undertaking, department was not going to lose anything. Ultimately, the installments of the loans were to be deducted from the salary of the accused. If such undertakings were usually filed by the department in case of employees, probably there could have been no motive for the accused to forge the signatures and official seals of his own SP, CBI to whom he was subordinate.
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22. "Obtaining for himself or for any other person any valuable thing or pecuniary advantage" is one of the essential ingredient of offence u/s. 13(1)(d) sub clause (1)(2) and (3). In the scheme of the Prevention of Corruption Act, the object of the legislation is to prevent the corruption. Therefore, the meaning of "valuable thing or pecuniary advantage" should be taken in the context of Corruption. Taking a loan from a public sector bank and making himself liable to repay the same does not itself prove that the borrower/public servant has taken "valuable thing or peculiar advantage" within the meaning of section 13(1)(d) of PC, Act unless it is proved that loan has been taken by corrupt or illegal means or by abusing official position as such public servant. In the circumstance of the case, it could not be proved that accused has obtained any valuable thing or peculiar advantage for himself or any other person either by corrupt or illegal means or by abusing official position as such public servant.
23. In view of the above findings, in my opinion, prosecution has failed to prove its case against the accused Bhudev Singh for the offence u/s. 420, 468, 471 of IPC & u/s 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. Therefore, accused is acquitted. His personal bond and surety bond furnished during the trial stands cancelled. In accordance with Section 437(A) in Cr. PC, he is directed to furnish fresh bail bond in an amount of Rs. 50,000/ with one surety of the like amount with an undertaking to appear before the higher Court in respect of any appeal 27 petition filed against the judgment of this Court.
Announced in the open court SANJEEV JAIN
th
on this 7 June, 2012 Spl. Judge(PC Act),
CBI02
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