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Delhi District Court

Cbi vs . 1 Dr Baij Nath Mittal, on 16 August, 2012

                                         1

  IN THE COURT OF SH. V.K MAHESHWARI, SPECIAL 
                          JUDGE (CBI) DELHI.

                                CC No. 57/99

CBI            Vs.               1     Dr Baij Nath Mittal,
                                       S/O Late Sh Bhagwant Ram Mittal
                                       Ex Dy Director General,
                                       ( Leprosy),M/O Health & Family
                                       Welfare Govt of India, Nirman 
                                       Bhawan, New Delhi.
                                       R/O B­195, Chitranjan Park,
                                       New Delhi

                                  2    Shri Mukesh Kumar Gupta,
                                       S/O Sh Ram Gopal Gupta,
                                       Statistical Assistant, DGHS,
                                       M/O Health & Family
                                       Welfare Govt of India, Nirman 
                                       Bhawan, New Delhi.
                                       R/O GI­931 Sarojini Nagar
                                       New Delhi.

                                         3         Krishan Chand Gupta 
                                                   S/O Sh Tek Chand Gupta,
                                                   Head Cashier, State Bank of 
                                                   Mysore, Paschim Enclave Branch,
                                                   New Delhi.
                                                   R/O D­221, Chattarpur Pahari, 


C C  No.57/99                                                                1/192
                                           2

                                     Behind Chattarpur Mandir,
                                     Delhi.

RC No.                               :        3(A)/96­CBI/ACU­IX

U/S                                  :        U/S 120­B, 409,419,467,
                                              471 IPC and Section 13(2)
                                              r/w Section 13(1) ( c ) & (d)
                                              of P C Act 1988.

Date of institution of case          :        25.11.99

Arguments concluded on               :        31.7.2012

Date of Order                        :        9.8.2012

JUDGMENT

BRIEF FACTS OF THE CASE :

1 Brief facts of the case according to prosecution are that Dr B.N Mittal while functioning as Deputy Director General ( Leprosy) (DDG) (L), Ministry of Health & Family Welfare, Govt of India, New Delhi , Sh M K Gupta Statistical Assistant, Directorate General of Health Services and Sh K C Gupta Head Cashier State Bank of Mysore , Connaught Place Branch , New Delhi during the period 1991 to 1993, entered in a criminal conspiracy with each other and in furtherance of the criminal C C No.57/99 2/192 3 conspiracy have misappropriated a sum of Rs.1,46,23,041/­ out of the funds given by World Health Organization ( WHO) and UNICEF for work relating to eradication of Leprosy in India. 2 WHO and UNICEF had provided a total sum of Rs.

4,42,30,456/­ to Dr B N Mittal, the then DDG (L) during the period May 1991 to May 1993 for eradication of leprosy in India, which were deposited in account No.01­CEP 1046800 with ANZ Grindlays Bank , Connaught Place Branch, which was opened by Dr B N Mittal in his official capacity as DDG(L) and he had dominion over this fund. The details of the cheques/payment instructions given by WHO and UNICEF are as follows:

(A) Cheques/ payment instruction issued by WHO.

1 Payment instruction No.93/344 dated 13.4.93 for Rs. 28,86,750.

2 Payment instruction No.WR/P1/62/93 dated 14.5.93 for Rs.13,44,755/­ 3 Payment instruction No.93/224 dated 15.3.93 for Rs. 61,19,750/­ 4 Payment instruction No.93/1228 dated 15.12.92 for Rs. C C No.57/99 3/192 4 90,93,200/­ 5 Payment instruction No.93/033 dated 12.01.93 for Rs. 86,59,800/­ 6 Cheque No.175736 dated 29.01.92 for Rs.73,800/­ 7 Cheque No.276542 dated 17.8.92 for Rs.7,11,800/­ 8 Cheque No.290135 dated 7.9.92 for Rs.3,65,200/­ 9 Cheque No.290136 dated 7.9.92 for Rs.9,01,400/­ 10 Cheque No.339979 dated 7.1.93 for Rs.6,24,000/­ Total Rs.3,07,80,455/­ (B) Cheques issued by UNICEF 1 Cheque No.855751 dated 29.5.91 for Rs.70,00,000/­ 2 Cheque No.985970 dated 2.12.92 for Rs.7,50,000/­ 3 Cheque No.856996 dated 7.8.91for Rs.57,00,000/­ Total Rs.1,34,50,000/­ A+B=Rs.4,42,30,455/­ 3 Dr B N Mittal opened Account No.SI­B/9/1640 with State Bank of Mysore, Connaught Place, New Delhi in the name of a fictitious firm M/S Kanak Ads on 3.8.91 with address GI­931, Sarojini Nagar, New Delhi which was the residence of accused M C C No.57/99 4/192 5 K Gupta. This account was introduced by accused K C Gupta . In this account, the cheques bearing Nos 436264 for Rs.7 Lacs; 436268 for Rs.10,18,260/­ and 436266 for Rs.15,25,500/­ were deposited and a total sum of Rs, 32,43,760/­ was transferred in this account and misappropriated by accused B N Mittal, out of the funds meant for the work relating to leprosy eradication. 4 Accused M K Gupta had also opened an account No.SIB/9/1639 on 1.9.91 with State Bank of Mysore, Connaught Place, N Delhi impersonating himself as Sat Parkash, Proprietor of a bogus firm M/S Novex Traders, B­6/72 Safdarjung Enclave, New Delhi and forged the signatures of Sat Parkash. This account was got introduced by accused K C Gupta through one customer of the bank Mr V K Goyal. In this account , the two cheques bearing nos 43621 dated 10.8.91 for Rs.18,29,31/­ and 436274 dated 31.10.91 for Rs.4.50 lacs issued by Dr B N Mittal were deposited and were withdrawn by accused M K Gupta and thus misappropriated a sum of Rs.22,79,31/­ out of the leprosy eradication funds.

5 From Account No.SIB/9/1639 in the name of M/S C C No.57/99 5/192 6 Novex Traders Rs.17,65,000/­ were withdrawn by accused M K Gupta, out of the amounts credited vide cheque No.436261 dated 10.8.91. Against credit of Cheque No.436274 for Rs.4.50 lacs, two debits one for Rs.88,375/­ a transfer entry for getting a pay order No.379122 for Rs.88,375/­ in favour of DLF Universal Limited which had been used for making payment for Apartment No. 103/12 in DLF Qutab Enclave Complex, Gurgaon, Haryana and five withdrawals of Rs.30,000/­ on 14.8.91, Rs.16,000/­ on 9.9.91 , Rs.15000/­ on 3.10.91, Rs.5000/­ on 4.1.91 and Rs.391/­ on 26.1.92 were made from this account . This account was closed on 26.1.1992.

6 Accused M K Gupta again opened another account No. SIB/10/1696 on 3.3.92 with State Bank of Mysore, Connaught Place Branch, New Delhi in the name of a bogus firm M/S Apex Enterprises with address 156 Ring Road Market, Sarojini Market, New Delhi and this account was also introduced by accused K C Gupta. The three cheques bearing Nos. 550323 dated 25.12.92 for Rs.17,52,320/­ ; 550327 dated 20.1.93 for Rs.21,35,650/­ and 550343 dated 15.4.93 for Rs.4,77,000/­ were credited and the total C C No.57/99 6/192 7 proceeds of these cheques amounting to Rs.43,64,970/­ were again misappropriated by accused B N Mittal in conspiracy with accused M K Gupta and K C Gupta.

7 From A/C No.SIB/9/1640 in the name of fictitious firm M/S Kanak Ads a sum of Rs.7 lacs had been withdrawn in cash by two cheques bearing Nos 156026 dated 17.8.91 for Rs.6 lacs and No.156029 dated 19.8.91 for Rs. 1 lac, by accused B N Mittal for his own purpose. Against credit of cheque No.436266 dated 17.8.91 for Rs.15,25,500/­ , three debits through cheque No 156028 dated 20.8.91 for Rs.3.50 lacs in favour of Shri O P Dawar; (ii) a transfer of Rs.8 lacs to account No.SIB/9/1641 in the name of M/S Vinita exports, which was operated by Smt Vinita Mittal , daughter in law of accused B N Mittal and cash withdrawal of Rs.3.75 lacs vide cheque no 156031 dated 29.8.91 were raised. Against credit of cheque No.436268 dated 5.9.91 for Rs.10,18,260/­ , six debits (i) cash withdrawal of Rs.75000/­ vide cheque no.156032 dated 12.9.91 in favour of accused M K Gupta;

(ii) Rs.2 lacs vide cheque no.156033 dated 13.9.91 in favour of Mr Amit Mittal son of accused B N Mittal; (iii) for Rs.1 lac vide C C No.57/99 7/192 8 cheque No.156034 dated 13.9.92 in favour of Deepak Mittal, son of accused B N Mittal; (iv) cash withdrawal of Rs.5.60 lacs vide cheque No.156035 dated 14.9.91 in favour of accused Mukesh Kumar Gupta; (v) Cheque No.156037 dated 20.9.91 for Rs. 40,000/­ in favour of Deepak Mittal were raised by accused B N Mittal.

9 Against credit of Rs.17,52,320/­ vide cheque no. 550323 in Account No.SIB/9/1696 in the name of fictitious firm M/S Apex Enterprises , four debits in the sum of Rs.10,20,000/­ vide cheque No.150452 dated 29.12.92 favouring ' self ' cash withdrawal of Rs.7 lacs vide cheque no 150451 dated 30.12.92 favouring 'self', cash withdrawal of Rs.5000/­ vide cheque no. 150453 dated 4.1.93 favouring 'self' and cash withdrawal of Rs. 25,000/­ vide cheque no 150454 dated 14.1.93 favouring ' VK Goyal' were raised by accused M K Gupta.

10 Against cheque No.550327 dated 20.1.93 for Rs. 21,35,650/­ deposited in the account No SIB/9/1696 of M/S Apex Enterprises, 8 debits of (i) Rs.10,55,000/­ vide cheque No.150455 dated 22.1.93 favouring self (ii) cheque no.150456 dated 23.1.93 C C No.57/99 8/192 9 for Rs.2,00,050/­ , (iii) cash withdrawal of Rs.8.30 lacs vide cheque No.150457 dated 25.1.93 favouring self, (iv) cash withdrawal of Rs.25000/­ vide cheque No.150458 dated 28.1.93 favouring self (v) cash withdrawal of Rs.17000/­ vide cheque No. 150459 dated 4.2.93 favouring self (vi) cash withdrawal of Rs. 2000/­ vide cheque No.150460 (vii) cash withdrawal of Rs.2000/­ vide cheque No.150461 and (viii) cash withdrawal of Rs.6000/­ vide cheque No.150462 were raised by accused B N Mittal. 11 Against credit of Rs.4,77,000/­ vide cheque No. 550343 in the account No. SIB/9/1696 of M/S Apex Enterprises, two debits, one for Rs.7000/­ and other for Rs.4,69,157/­ were raised by accused B N Mittal and second debit of Rs.4,69,157/­ has been used for making pay order No.36792 for Rs.4,69,132/­ for making final payment towards the cost of Silver Oaks Apartment no.103/12 in DLF Qutab Enclave Complex, Gurgaon of accused B N Mittal.

12 Accused B N Mittal had issued 5 demand drafts from account No.CEP 1046800 which are as follows:

DD No. Dated Amount Favoring Payable C C No.57/99 9/192 10 663192 10.9.92 2.05 lacs Dr B N Mittal Madras.

6633801      23.12.92     18.70 lacs Dr J O Simon           ­do­

664190       13.1.93      3.00 lacs     Dr J O Simon        ­do­

664264       29.1.93      18.50 lacs Dr J O Simon           ­do­

665209       15.5.93      5.10 lacs     Dr B N Mittal  Hyderabad.



13           Accused   B   N   Mittal   opened   Saving   Bank   Account 

No.587 in his own name with The Vysya Bank Ltd ., Bowenpally Branch, Secunderabad and got credit of the proceeds of demand draft No.665209 dated 15.5.93 for Rs.5.10 lacs in the following manner.

1 Rs.10,000/­ was credited in SB A/C No.587 on 20.5.93 2 Akshay Deposit No.20/93 for Rs.2 lacs. 3 Akshay Deposit No.21/93 for Rs.1 lacs. 4 Akshay Deposit No.22/93 for Rs.1 lacs. 5 Akshay Deposit No.23/93 for Rs.1 lacs. 14 These deposits were made for a period of one year, but accused Dr Mittal had prematurely encashed the said fixed C C No.57/99 10/192 11 deposit on 12.2.94 and the proceeds were taken to New Delhi and were misappropriated. Against the payment of Akshay deposit No.20/93, Rs. 2,14,955/­ was credited in Account No.500150 of ABN AMRO Bank on 16.3.94. A payment of Rs.1,50,000/­ had been made to Shri Rajesh Chopra towards the cost of property at 41, Gautam Nagar , New Delhi purchased in the name of Dr. ( Mrs.) Krishna Mittal wife of Dr B N Mittal . 15 Accused B N Mittal opened account No.1810 with SBI Teyanmpet Branch, Madras with the introduction of Dr. J O Simon , District Leprosy Officer, Madras and deposited an amount of Rs.2.05 lacs through DD No.663192 on 14.9.92. On 15.9.92 accused B N Mittal had made a payment of Rs.2 lacs to M/s Adharshila Holding & Credit ( P) Ltd; a company owned and managed by his son Shri Deepak Mittal through cheque No. 543988 dated 15.9.92.

16 Dr J O Simon was maintaining A/C No.P­71021 with SBI, Teynampet Branch Madras . He deposited DD No.663801 dated 23.12.92 for Rs.18.70 lacs in this account on 30.12.92 on the directions of Dr Mittal. Dr Simon withdrew the money through C C No.57/99 11/192 12 cash as well as through demand drafts favouring S/Sh Udai Ram Dhyani, O P Dabar and Avinash Kumar and handed over to Dr Mittal . Dr Mittal gave the demand drafts to Shri O P Dabar and got the equivalent amount in cash from him, thus Dr B N Mittal misappropriated Rs.18.70 lacs out of the funds meant for leprosy eradication in India. In another account No.SB 620 with Indian Overseas bank,Teyanmpet Branch, on the directions of Dr B N Mittal. Dr J O Simon deposited DD No.664190 dated 13.01.93 for Rs.3 lacs on 23.01.93 and DD No.664264 dated 29.01.93 for 18.50 lacs on 10.2.93 and withdraw the proceeds of the drafts through cash as well as through demand drafts favouring Sh Gautam Parkash Sahani and Sh Hardeep Sahani which were issued out of the funds meant for leprosy eradication in India for purchase of two plots no.A245 and A246 Shivalik in the name of Shri Deepak Mittal and Shri Amit Mittal, both sons of accused Dr B N Mittal and as such accused Dr Mittal misappropriated Rs.21.20 lacs. 17 In order to prove its case prosecution has examined, PW­1 Shri Lalit Kumar Berry who has proved letters dated 2.4.97, 3.7.97 and 8.7.97 vide Ex PW1/A to PW1/C. C C No.57/99 12/192 13 PW­2 Sh. Jitender Arora , has deposed that he is doing his tent business at 156 Ring Road, New Delhi PW­3 Vijender Kumar Goyal has deposed orally.

PW4 Sh Ashish Kumar has deposed orally and has not proved any document.

PW5 Sh P K Ghai has proved account opening form Ex PW5/A signed by accused Dr B N Mittal , cheques Ex PW5/B1 to B8, account opening form Ex PW5/C, specimen signatures card Ex PW5/C­1 and letter Ex PW5/C­2 signed by Dr B N Mittal.

PW6 Sh M P Gupta , Assistant Manager Grindlays Bank has deposed orally.

PW7 Subhash Gupta has proved certified copy of bank account No. 01CEP 1046800 operated by Dr B N Mittal .

PW8 Sh Pawan Kumar has deposed that no such firm by the name of Gandharava Associate and Apex Enterprises was running from shop No. 156 Ring Road Market Delhi.

PW9 Sh Rajan Kochhar has deposed orally.

PW10 Sh Joginder Pal Singh has deposed orally. PW11 Dr N S Dharma Shatru has deposed orally. C C No.57/99 13/192 14

              PW   12   Sh   N   K   Jetley   has   proved   5     drafts   Ex 

PW12/A­1 to PW12/A­5.

PW13 Sh Y N Sabharwal has also proved cheques Ex PW5/B­1 to B­8. He has also proved cheques Ex PW13/A to PW13/F and statement of account Ex PW7/A. PW14 Sh Satish Kumar has proved copy of ledger sheet of M/S Kanak Ads ExPW14/A and proved the entries made therein Ex PW14/A. He has also proved 12 cheques issued by M/s Kanak Ads Ex PW5/B­1 to B­8 and Ex PW14/C­1 to C­4.

PW15 Sh Sanjeev Vasudeva has proved ledger sheet of account No. SIB/11/1786 and A/C No.SIB/11/1696 of M/S Gandharava Associate and A/C No..SIB/9/1696 Apex Enterprises Ex PW15/A and Ex PW15/B. PW16 Sh G S Jai Kumar Branch Manager , State Bank of Mysore, Connaught Place Brnach has proved account opening form of accused B N Mittal, Gandhrava Associate, Vinita Exports ,Kanak Ads, Apex Enterprises Ex PW16/A , PW16/B, Ex PW16/C and Ex PW15/A. He has proved cheques Ex PW16/E, Ex PW16/F, PW16/G, Ex PW16/H, Ex PW16/I, PW16/J, and C C No.57/99 14/192 15 PW16/K1 to Ex PW16/K­4.

PW17 Smt Jasbir Kaur , has proved ledger sheet of account in the name of Vinita Exports Ex PW17/A. PW18 Sh Manmohan Singh, has proved seizure memos Ex PW18/A, Ex PW18/B . He has also proved original ledger sheet of account of Novex Traders Ex PW18/C. PW19 Sh R K Mohan has proved cheques issued by WHO in favour of DDGL Leprosy DGHS Ex PW19/A to PW19/D. He has proved payment instructions issued by WHO Ex PW19/E to PW19/J. PW20 Sh Rameshwar Dayal, has proved admission entries in Govt Boys Senior Secondary School, Moti Bagh Ex PW20/A to PW 20/C. PW21 Shri Avtar Krishan Kaul has proved the cheques issued by UNICEF in favour of Deputy Director General ( Leprosy) Ex PW21/A and Ex PW21/B. He has also proved receipt of documents Ex PW21/C. PW22 Sh K K Davis proved account opening form of M/S Novex Traders Ex PW22/A, specimen signatures cards Ex C C No.57/99 15/192 16 PW22/B , PW22/C, PW22/D. PW23 Smt Urmila Rani Gupta has proved a cheque issued by WHO in favour of Dr B N Mittal, DDG ( Leprosy ) Ex PW23/A. PW24 Sh Vinod Handa has proved draft applications Ex PW24/A, PW24/B, PW24/C. He has also proved cheques Ex PW 24/D and PW24/E. PW25 Sh Om Parkash Dawar has proved cheque Ex PW14/C­1 .

PW26 Harbans Singh has proved photocopy of certificate of incorporation of Adharsheela Holdings & Credit Pvt Ltd Mark A. PW27 Sh K. Saikumar has produced documents to CBI vide letters Ex PW27/A and PW27/B .

PW27A Sh Raj Kumar has proved deposit slip Ex PW27/A. He has proved pay in slips Ex PW27/B and Ex PW27/C .

PW28 Sh Nepal Singh has proved his letter Ex PW28/A .

C C No.57/99 16/192 17

PW28­ A Manjeet Singh Kohli has proved agreement to sale and GPA Ex PW28/A and PW28/B. PW29 Kawarpal Singh Kochar has also proved GPA Ex PW28/A and marked ExPW38/B. PW30 Sh Daljit Singh has also proved GPA Ex PW28/A and ExPW28/B. PW31 Sh Rajesh Chopra has executed GPA and receipt in favour of Krishna Mittal.

PW32 Sh Jyant Kumar has proved ledger sheet of account No.5583 Ex PW32/A, application for opening of account Ex PW32/B , specimen signatures card Ex PW32/C, handing over memo Ex PW32/D, control sheet of account of Gandharav Associates Ex PW32/E. He has also proved credit vouchers, cash receipt vouchers , pay order vouchers, draft voucher , current account cheques , control sheet , specimen signatures cards , current account challan, application form for pay order , transfer debit voucher Ex PW32/D­1 to PE32/D­3, Ex PW32/E, Ex PW32/F, Ex PW32/G­1 to Ex PW32/G­12, ExPW32/H­1 to Ex PW32/H­32, PW32/J­1 to PW32/J­1 to PW32/J­4 and Ex C C No.57/99 17/192 18 PW32/K­1 to Ex PW32/K­26.

PW33 Sh Vijay Kumar Sharma has passed cheque Ex PW33/A­1 to A­4.

PW34 Sh Surinder Verma has identified carbon copy of purchase orders Mark PX­1 to PX­6.

PW35 Ramesh Karmakar had signed on DDs Ex PW12/A­1 to A­5.

PW36 Sh Abhishake Mathur has deposed orally. PW37 Major Suneal Malik has signed as witness on the GPA Ex PW37/A .

PW38 Poonam Sahni has proved GPA and receipts Ex PW38/A, Ex PW38/B and Ex PW38/C. PW39 Sh Hardeep Sahni has handed over 14 documents to CBI vide seizure memo Ex PW39/A. PW40 Sh Anup Malik has also proved GPA Ex PW37/A. PW41 Dr J O Simon has proved account opening form of accused B N Mittal Ex PW41/A. He has proved his statement of Current account No.SB­620 Ex PW41/B , deposit C C No.57/99 18/192 19 slips Ex PW41/C, PW41/D, draft application forms Ex PW41/E and Ex PW41/F. He has proved the drafts Ex PW41/G PW41/H, PW41/J and PW41/K, Cheque Ex PW41/L, Ex PW41/M , receipt of draft Ex PW41/N, printed draft application Ex PW41/N­1 , cheques Ex PW41/N­2 and N­3.

PW42 C Durai Samy has proved current account paying slip ExPW42/A, cheques Ex PW42/B, draft/mail transfer/Banker's Cheque application forms Ex PW42/C, PW42/D, statements of account Ex PW42/E and ExPW42/F, pay in slip dt 14.2.92 Ex PW42/G and cheque Ex PW42/H. PW43 Sh T Joshi , Asstt GEQD, has prove his report Ex PW43/J , detail reason of his report Ex PW43/K and supplementary opinion report Ex PW43/L , PW43/M. PW44 Sh Ashif Iqbal , Commissioner Central Excise has proved sanction for prosecution of accused Mukesh Kumar Ex PW44/A. PW45 Sh D R Srodhara has proved sanction for prosecution of accused Kishan Chand Gupta Ex PW45/A. PW46 Sh Kamal Kant Hingorani has prove account C C No.57/99 19/192 20 opening of accused B N Mittal ExPW46/A , specimen signatures card Ex PW46/B, account closure form Ex PW46/C, Annexure VII of bank Ex PW46/D, statement of account Ex PW46/E, Deposit Slip Ex PW46/F and Ex PW46/F­1, cheque dt 3.2.93 Ex PW46/G , computer generated statement of account No.500150 Ex PW46/H .

PW47 Sh O P Arora has proved loan agreement Ex PW47/A , receipt dated 22.8.91 Ex PW47/B and seizure memo Ex PW47/C. PW48 Sh B Shankernarayan Sharma has also proved account opening form of Savita Gupta Ex PW16/B , signatures card Ex PW33/G­6, application to open saving bank account of accused B N Mittal Ex PW32/B, specimen signatures card Ex PW32/C and statement of account No.5583 of accused B N Mittal Ex PW32/A. PW49 Sh Ratan Singh has deposed orally.

PW50 Sh Majety Venkatesawra Rao has proved statement of accounts of account No.587 of accused B N Mittal Ex PW50/A and PW50/B and four pay in slips Ex PW50/C to C C No.57/99 20/192 21 PW50/F. PW51 Sh Naveen Chander Jha has proved copy of FIR Ex PW51/A . He has also proved Ex PW51/B a letter dt 17.2.98 vide which documents were received by him .

PW52 Sh Satish Dhar has verified his signatures on payment instructions in favour of Deputy Director General (Leprosy) Ex PW19/F to ExPW19/J. PW53 Ms Kiran Gupta has deposed orally.

PW 54 Ms Kancha Sharma has also deposed orally. PW55 Sh N K Lakhanpal , has proved letter dated 19.2.97 Ex PW55/A. PW56 Sh N R Thakur has assisted IO Sh S K Singh and recorded statement of some of the witnesses.

PW57 Inspector A S Tariyal was entrusted the investigation of this case . He has proved letters dated 2.4.97 , 19th/20th February 1997 Ex PW57/A and PW57/B. He has proved seizure memos Ex PW57/D, PW57/E, letter dated 29.8.96, dt 12.9.96, dt 16.9.96 Ex PW57/F and PW57/G, PW57/H, seizure memo Ex PW57/ and search lists Ex PW57/K and Ex PW57/L. C C No.57/99 21/192 22 PW58 Sh Sanjay Kumar Singh , Inspector CBI has proved letters Ex PW58/A, PW58/B , receipt dated 19.3.99 Ex PW58/C, two files relating to DLF EX PW58/E and PW58/F .

PW59 Sh Shiv Kumar Varma has proved contractual service agreement PW59/A and various other correspondence made by Mr Jafri J Kobza Ex PW58/B and PW59/C. DEFENCE OF ACCUSED AND DEFENCE EVIDENCE.

18 Statement of all the accused recorded u/s 313 Cr.PC.

Accused B N Mittal denied the evidence produced by prosecution against him on the judicial file. He has stated that this is a false case .All the funds were used as per the instructions and guidelines of WHO. The allegations made against him are false and fabricated. There is no evidence on record to support the allegations that he had misappropriated funds allocated by WHO and UNICEF. On the contrary it has come in evidence that the WHO and UNICEF never made any complaint against him C C No.57/99 22/192 23 regarding any mis­appropriation in relation to the funds allocated by them towards leprosy eradication programme. All the funds were duly accounted for and he in his capacity as Dy Director General used to regularly submit accounting details to the WHO in connection with the usage of funds towards leprosy programme. The WHO/ UNICEF never raised any objection with regard to expenditure of fund or achieving project objectives. The funds in question were never a subject matter of the budgetary control or audit control of the Govt of India. The funds issued by WHO /UNICEF were extra budgetary and the same were utilized in accordance with the instructions / objectives of the WHO/UNICEF. The present case has been foisted upon him by the investigating agency who have deliberately not taken into account the above mentioned aspects. IO deliberately withheld documents which were seized during the course of investigation but not placed on record because the same would have proved his innocence beyond any doubt. The internal inquiry report of the Joint Secretary and CVO of the Ministry of Health and family welfare clearly revealed that no case was made out against him C C No.57/99 23/192 24 for misuse of funds. IO in order to frame him in this case has intentionally left out all these issues as it would have made the prosecution case against him completely unsustainable. 19 Accused Mukesh Kumar Gupta has stated that he is innocent and falsely implicated in this case. 20 Accused Krishan Chand Gupta has stated that he is innocent.

21 Accused B N Mittal in his defence has produced following witness.

DW1 Sh Deepak Mittal, who has proved information received from Swedish International Development Authority (SIDA) Ex DW1/A , final report of April 1994 Ex DW1/B & DW1/C. DW2 Sh Om Parkash Arya who has proved his application moved under RTI Act to the Central public Information Officer, CBI Ex DW2/A. He has received information from CPIO mark D­2 and copy of fax dt 17.3.99, copy of five cheques and papers marked as No.8 and 9 and copy of report on C C No.57/99 24/192 25 the utilization of various funds provided in externally aided projects , their accounting procedure and possible loop holes which are running from page No.19 to 32.

22 Arguments Heard. file perused.

PROSECUTION ARGUMENT 23 Ld Sr Prosecutor Sh Brajesh Shukla referring the statement of all the witnesses and the documents proved and produced by the prosecution argued at length that all the three accused being the public servant, at the time of commission of this offence in connivance and in collusion of each other, in furtherance of their criminal conspiracy hatched by them, mis using their public authority mis appropriated an amount of Rs. 1,46,23041/­. It is argued that prosecution has proved its case beyond reasonable doubt hence they may be convicted. DEFENCE ARGUMENTS ON BEHLAF OF ACCUSED B N C C No.57/99 25/192 26 MITTAL 24 Ld Defence counsel Ms Rabecca John for accused B N Mittal argued in detail that money in question does not pertains to Govt of India . It was an extra budgetary fund granted by WHO and UNICEF Prosecution has failed to prove any legal agreement/ guidelines with regard to entrustment of the money and use of the same to Dr B N Mittal. It is argued that prosecution has not been able to prove that funds transferred were the subject matter of GOI/CAG/Pay & Account Audit. On the contrary, what has been established, through the evidence of PW4 and others is that the funding was through an external agency, the spending thereof was a matter between the programme Officer and the WHO representative. There was never any audit on behalf of Government of India of these funds as the expenditure was a matter between the Programme Officer and the WHO representatives who were satisfied with the end utilization of funds. Money allocated by the WHO was an extra budgetary fund and the account opened was not a Government of India account. Ld Defence counsel co­relating the statement of PW1 with Ex C C No.57/99 26/192 27 DW2/DZ­2 argued that Govt of India had no control, dominion over the said funds . It is argued referring page No.3 of Ex DW2/DZ­2 " Report on utilization of funds" that as long as the expenditure is made by UNICEF, the procedure for incurring expenditure and counting for it is that of UNICEF. Neither WHO nor UNICEF had made any complaint with regard to mis appropriation of funds . According to PW4 leprosy programme was a Flagship programme rated highly in the country. 25 Ld Defence counsel argued that prosecution has utterly failed to prove any mis appropriation of money by accused B N Mittal . In absence of any criminal mis appropriation by accused B N Mittal no offence U/S 13 (1) ( C ) or 13 (1) ( d) of P C Act are made out. Prosecution has also failed to prove any criminal conspiracy between accused B N Mittal and his co­ accused. It is argued that prosecution has not obtained sanction for the prosecution of accused as required U/S 197 Cr P C because at the time of commission of the alleged offence he was a public servant though he may retired at the time of filing of charge sheet C C No.57/99 27/192 28 in this Court.

26 Detailed written submissions has been filed on behalf of accused B N Mittal which are on the judicial file, hence on account of brevity I am not incorporating arguments of Ld Defence counsel in detaile in this judgment. However I will deal the arguments at the appropriate stage in this judgment. 27 In support of arguments Ld Defence counsel placed reliance on the following authorities:

R. Sai Bharathi V. J. Jayalalitha & Ors JT 2003 (9) SC 343.

State of Karnataka Vs Arun Kumar Agarwal AIR 2000 Supreme Court 411.

Common Cause , A Registered Society Vs Union of India & Ors.

Mr Ripen Kumar Vs Department of Customs 2001(1) JCC ( Delhi) 47.

Madhusudan Singh Vs State of Bihar AIR 1995 C C No.57/99 28/192 29 Supreme Court 1437.

Velji Raghavji Patel Vs The State of Maharashtra , AIR 1965 Supreme Court 1433.

DEFENCE ARGUMENTS ON BEHALF OF ACCUSED M K GUPTA.

28 Ld Defence Counsel Sh Vishal Gosain for accused M K Gupta argued in detailed and also filed his written submissions . In nutshell his arguments are that the evidence sought to be used against accused M K Gupta is contrary to the charge NO.1 and 3 framed against him The charge is defective Parse. Accused has been charged conspiring with Dr B N Mittal to siphon the funds belonging to WHO and UNICEF , but none of the charge has been proved during the trial by any credible evidence. 29 Ld Defence counsel referred the statement of PW 4, PW57, PW58 and Ex PW58/DA. According to the statement of J J Koebze, no loss was caused either to WHO or UNICEF, therefore the basic allegations that accused N K Gupta had conspired with B N Mittal to siphon the funds belonging to WHO C C No.57/99 29/192 30 and UNICEF fails.

30 It is argued that prosecution has not proved any entrustment of money made to accused M K Gupta either by WHO or UNICFEF , therefore no offence U/S 120 ­B read with 409 IPC made out against accused. Ld Defence counsel placing reliance of Veli Raghavji Patel Vs State of Maharashtra, 1965 SCR ­429 . Neither WHO nor the UNICEF has entrusted any property to accused M K Gupta which could have been misappropriated by him alongwith the co­accused. None of the witnesses have alleged that he funds belonging to WHO/UNICEF had been misappropriated . Both the organization have not filed any complaint regarding mis­utilization of funds by anyone . 31 Referring the statement of PW 44, it is argued that money involved in this case was not of Govt of India but that of WHO and other international agencies. WHO or any other International agency had not directly entrusted the money to accused M K Gupta. It is argued that in the absence of entrustment of money no offence u/s 120­B read with Section 409 IPC made out.

C C No.57/99 30/192 31 32 Placing reliance on Subash Parbat Sonvane reported in 2002 (2) JCC 881 argued that accused M K Gupta is not beneficiary of the funds in question WHO/UNICEF have not made any allegation of any loss having been caused to them. Merely because the Applicant allegedly opened/ facilitated some bank accounts of fictitious firms, the same could hardly be a ground for invocation of Section 13(1) (d) of the Act, particularly in view of the fact that the pre condition of having a demand or request is absent in the present case. Even the bank in question i e State Bank of Mysore has not been caused any pecuniary loss. Hence the charge under Section 13(1) (d) of P C Act has not been proved against accused M K Gupta.

33 It is argued that no charge either impersonation or forgery has been framed against accused hence he cannot be convicted for any such offence . Report of hand writing expert is not a substantive piece of evidence. It cannot be relied upon without corroboration from some independence and circumstantial evidence to convict the accused. In support of his argument Ld C C No.57/99 31/192 32 Defence counsel place reliance on MAGAN.

34 Referring the statement of PW 22 it is argued that prosecution has failed to prove that M K Gupta impersonated as Sat Parkash because PW 22 has deposed that he did not remember that anybody named Sat Parkash singed in front of him . NO TIP of accused Sat Parkash has been conducted according to the IO. Prosecution has failed to prove its case against accused beyond reasonable doubt hence accused is entitled for benefit of doubts. It is argued that prosecution has not obtained sanction for the prosecution of accused as required U/S 197 Cr P C . DEFENCE ARGUMENTS ON BEHALF OF ACCUSED K C GUPTA.

35 It is argued by Ld Defence counsel Sh M K Gupta on behalf of accused K C Gupta that according to prosecution K C Gupta had introduced five accounts namely account of Sh Baij Nath Mittal, Proprietor of M/S Kanak Ads, Ex PW5/A ( D­95), S.B. account of Sh Baij Nath Mittal Ex PW16/A ( D­92), account of Sh Mukesh Kumar Gupta , Proprietor of M/S Apex Enterprises , Ex PW16/D ( D­90, account of Smt Vineeta Mittal , Proprietor C C No.57/99 32/192 33 of M/S Vineeta Exports Ex PW16/C ( D­94) and account of Smt Savita Gupta , Proprietor of M/S Gandharv Associates Ex PW16/B ( D­93).

36 It is also alleged by prosecution that account of Sat Parkash proprietor of M/S Novex Traders Ex PW22/A ( D­91) introduced by PW 3 V K Goel impersonating himself as Rajat Goel introducing Mukesh Kumar Gupta as Sat Parkash at the instance of accused K.C Gupta, who has been impleaded as an accused in this case only because of this account. Prosecution has produced Vijender Kumar Goel as PW 3 who has not supported the case of prosecution at all. He has deposed that he had not introduced any account in State Bank of Mysore CP Branch and no friend of his is working in State Bank of Mysore C P Branch. In his cross examination he has again denied introducing of this account. PW3 is the only witness cited by the Investigating agency with regard to introducing of Novex Traders by M K Gupta impersonating as Sat Parkash thus when PW3 has not supported the case of the prosecution at all there is no incriminating evidence against accused K C Gupta. C C No.57/99 33/192 34 37 In respect of five accounts introduced by K C Gupta there is no allegations that he has falsely introduced any one of them. Even from the statement of PW20 Rameshwar Dayal produced by prosecution it is proved that Mukesh Kr Gupta was well known to K C Gupta since childhood.

38 PW41 J O Simon had introduced the account opened by accused B N Mittal . He had also withdrawn huge sum of money from time to time and handed over the amount to B N Mittal. PW41 had withdrawn the money from the official account and used it for his personal purpose and later on refunded the same to B N Mittal as per his own admission but he has not been cited as an accused in this case. There is no allegations against accused K C Gupta with regard to mis appropriating any amount or obtaining any financial benefit.

39 Ld Defence counsel referring the statement of PW 57 Sh A S Tariyar and PW 58 Sh Sanjay Kumar Singh both the IO,s C C No.57/99 34/192 35 of this case argued that they have not stated anything incriminating against him. It is argued that there is not an iota of incriminating against accused K C Gupta, he may be acquitted. WHETHER REPORT OF HAND WRITING EXPERT AND HIS EVIDENCE CAN BE RELIED UPON.

40 Ld. Defence Counsel further argued that report of Handwriting Expert is mere an opinion hence no reliance can be placed on the report of Handwriting Expert without any corroboration from independent evidence. It is just like an hearsay evidence. In support of this argument they have placed reliance on following authorities:

Magan Bihari Lal Vs. The state of Punjab (1977) 2 Supreme Court Cases 210, and Shashi Kumar Banerjee & Ors Vs Subodh Kumar Banerjee, AIR 1964 Supreme Court 529 .

41 PW43 Sh Trilochan Joshi, GEQD has deposed that he had joined GEQD in 1998 prior thereto he was in the Forensic Laboratory UP , at Agra he had more than 19 years experience in C C No.57/99 35/192 36 the profession of forensic document examination . He has examined hundred of cases and appeared as independent expert witness in various courts through out the country. He has received Best Presentation Award in Forensic Science Conference. He has specifically deposed that he had carefully and throughly examined the question writings and signatures with the supplied specimen writings and signatures and submitted his report ex PW43/J and supplementary opinion Ex PW43/L. He has further deposed that late Sh R K Jain, Dy Govt Examiner of Question Documents had also independently examined all the documents and reached to the same conclusion . Sh R K Jain has now expired. He has also identified signature of R K Jain on Ex PW43/J. 42 This witness has been cross examined at length on behalf of accused . His entire cross examination is as under:

" My qualification is post graduate in Mathematics and I have not obtained any other degree or diploma from any university. It is correct that handwriting analysis was not a subject in my post graduation in mathematics.

Q Is it correct that the writing characteristics which was mentioned in C C No.57/99 36/192 37 your report Ex.PW43/J, Ex.PW43/K and Ex.PW43/L are not exhaustive and there are other important handwriting characteristics also which are subject of handwriting analysis?

Ans. It is wrong to suggest that the handwriting characteristics as I mentioned in my report and reasons are not complete. The handwriting characteristics which I have mentioned in my reasons are general writing characteristics and individual writing characteristics.

I was not asked to opined about the age of documents, hence I have not mentioned the same. Whether age of document is relevant or not depends upon the facts to facts of each case. It is wrong to suggest that I have not mentioned in my report about the particular characteristics of the individual handwriting as observed by me. It is wrong to suggest that I am not competent and trained and I do not have expertise and skill in handwriting science. It is wrong to suggest that the examination conducted by me was wrong and the reports prepared Ex.PW43/J, Ex.PW43/K and Ex.PW43/L are incorrect and prepared at behest of CBI. It is wrong to suggest that late Sh.R.K.Jain ever independently examined the questioned documents and came to same conclusion as mine in the report Ex.PW43/J, Ex.PW43/K and Ex.PW43/L."

43 From the entire cross examination of this witness on behalf of accused it is clear that nothing such has come out to C C No.57/99 37/192 38 disbelieve his evidence or to infer that his report is incorrect or biased in favour of CBI.

44 Hon'ble Supreme Court in Murari Lal Vs. State of Madhya Pradesh (1980) 1 Supreme Court Cases 704 with regard to evidenciary value of Handwriting Expert Report and its corroboration by other evidence has held as follows:

"Evidence Act, 1872 - Sections 45, 46, 73 and 3 - Evidence of handwriting expert - Held, need not be invariably corrborated - It is for the Court to decide whether to accept such an uncorroborated evidence or not - Court should approach the question cautiously and after examining the reasonings behind the expert opinion and considering all other evidence should reach its conclusion - Even where there is no expert court has power to compare the writings itself and decide the matter - On facts, courts below on such comparison concurring with the exper's view and the defence raising no doubts against the reasons given by the expert for his opinion - Held, opinion evidence acceptable without any corroboration."

C C No.57/99 38/192 39

45 Similar view has been taken Hon'ble Supreme Court in Ram Narain Vs. Uttar Pradesh AIR 1973 SC 2200 wherein it is held as follows:

"Both under Section 45 and Section 47 the evidence is an opinion in the former by a scientific comparison, and in the latter on the basis of familiarity resulting from frequent observatrions and experience. in either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become a handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characterstics in the admitted or proved writings and the finding of the same characterstics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness."

C C No.57/99 39/192 40

46 PW 43 T Joshi, GEQD has deposed that he has received specialized training in scientific examination of documents including handwriting identification and forgery detection. He has examined large number of documents and has appeared as an expert witness in various courts. 47 From a careful perusal of ratio of law laid down in Murari Lal Vs. State of MP it is clear that opinion of Handwriting Expert can be accepted without any corroboration, if found reliable and undoubtful. In view of above discussion this court is of opinion that nothing has appeared on the record to raise any doubt with regard to the opinion of Handwriting Expert, therefore, his report is authentic and can be relied upon in this case even without corroboration.

48 I have carefully gone through the authorities relied upon by Ld. Defence Counsel with regard to the evidenciary value of the report of Handwriting Expert. There is no dispute C C No.57/99 40/192 41 with the preposition of law laid down in these authorities, however every case has its own facts and circumstances. Ratio of law laid down according to the peculiar facts and circumstances of that particular case and is to be applied in the cases having similar facts and circumstances. As discussed above facts and circumstances of case in hand are entirely different because there is nothing at all on the judicial record to disbelieve the evidence of PW43 T Joshi, GEQD and his opinion and reasons for his opinion, therefore, his report in such facts and circumstances becomes reliable and trustworthy even without any corroboration from independent evidence.

ROLE OF EACH ACCUSED AND EVIDENCE AGAINST THEM.

Account no.01­CEP 1046800 in the name of B.N.Mittal, Dy.Director General, Leprosy, DGHS, with ANZ Grindlays Bank, Connaught Place, New Delhi. 49 According to prosecution accused B.N.Mittal had opened current account no.01­CEP 1046800 in the name of C C No.57/99 41/192 42 Dy.Director General (Leprosy) with ANZ Grindlays Bank, Connaught Place, New Delhi on 01.06.1991 vide account opening form Ex.PW5/C (D62) under his signatures at point Q 450 under the name and style "B.N.Mittal, Dy.Director General, Leprosy, DGHS, NewDelhi". In this account various grants received from World Health Organisation (WHO) and UNICEF were credited for various leprosy eradication programmes in India. 50 Vide Resolution Ex.PW5/C2 dt.01.06.91(D­61), it was communicated to the ANZ Grindlays Bank by Dr.B.N.Mittal, himself that he, as DDG Leprosy was authorized to operate solely on this account. He was also authorized to place the funds with the bank in the present and/or future schemes. In this way accused B.N.Mittal has admitted his domain over the funds received under leprosy eradication schemes as Dy.D.G (Leprosy) DGHS.

51 Prosecution has proved that Rs.28,86,750/­, Rs. 13,44,755/­, 61,19,750/­, 90,93,200/­ and Rs.86,59,800/­ were deposited in the account of Dy.Director General Leprosy,DGHS, C C No.57/99 42/192 43 No. 01SBC 8232300 in Grindlays Bank, Connaught Place branch vide payment instruction Ex.PW19/F, Ex.PW19/E, Ex.PW19/G, Ex.PW19/H and Ex.PW19/J (D46 to D50) issued by WHO. 52 Prosecution has also proved that Rs.73,800/­ vide cheque no.175736 dt.29.1.92 Ex.PW23/A (D­38), Rs.7,11,800/­ vide cheque no.276542 dt.17.8.92 Ex.PW33/A1 (D­39), Rs. 3,65,200 vide cheque no.290135 dt.07.09.92 Ex.PW33/A2 (D­40), Rs.9,01,400/­ vide cheque no.290136 dt.07.09.92 Ex.PW33/A3 (D­41) and Rs.6,24,000/­ vide cheque no.339979 dt.07.01.93 Ex.PW19/A (D­42) issued by WHO were deposited in the above said account.

53 In this way prosecution has proved that WHO had granted a total amount of Rs.3,07,80,455.00 which was deposited in the above referred account.

54 Prosecution has also proved that UNICEF had sent Rs.70,00,000/­ vide cheque no.855751 dt.29.5.91 Ex.PW21/A (D­43), Rs.7,50,000/­ vide cheque no.985970 dt.02.12.92 Ex.PW33/A (D­44) and Rs.57,00,000/­ vide cheque no.856496 dt. C C No.57/99 43/192 44 07.08.91 Ex.PW21/B (D­45) thus a total amount of Rs. 1,34,50,000/­ was deposited in the above said account. 55 Prosecution has also proved statement of account no. 01 CEP 1046800 as Ex.PW7/A. Thus a total amount of Rs. 4,42,30,455.00 was duly credited in the account of Dy.Director General (Leprosy) in Grindlays Bank, Connaught Place. This amount was granted by WHO and UNICEF for the various Leprosy eradication programmes.

56 Specific questions No.3 and No.10 were put to accused B N Mittal in his statement recorded U/S 313 Cr P C that he had opened account No.01­CEP 1046800 in the name Dy Director General Leprosy in Grindlays Bank, CP Branch N Delhi to which he has replied as follows:

" Ans. The account with Grindlays Bank was a private account . Even the account opening form would show that it was opened in my personal name."

57 But from the above discussion it is proved beyond reasonable doubt that this account No.01­CEP 1046800 in the name of Dy Director General Leprosy in Grindlays Bank, CP C C No.57/99 44/192 45 Branch N Delhi was not the personal account of accused B N Mittal it was opened by him in his official capacity. 58 PW59 Sh Shiv Kumar Verma who was working as Administrative Office in the year 1991in the office of WHO and was dealing with the work of issue of cheques as Second Signatory alongwith Dr Olavi Elo the First Representative of WHO in India has categorically deposed in his examination in chief that WHO used to provide funds for leprosy eradication programme which is to be utilized for the same purpose. Relevant portion of his examination in chief in this regard is as under:

" I know Mr Jafri J Kobza as he was Budget and Finance Officer, WHO, South East Regional Office and I had occasioned to deal with him during my tenure in WHO . I have seen his signatures on various correspondence in official course of business. His signatures is at point A on Ex PW59/B ( Objected to ) and Ex PW59/C. WHO used to provide funds to various programmes including in leprosy in India for proper utilisation of funds for the purpose the same was advanced.

In his cross examination he has stated as follows : C C No.57/99 45/192 46

" Whether Mr Kobza had made any complaint against B N Mittal is not in my knowledge . No complaint was made to me either by WHO or Mr Kobza that Dr B N Mittal had mis­ appropriated the funds. I have seen the photocopy of contractual service agreement dated 16.11.92 which was entered into between Dr B N Mittal and Dr Olavi ELO, WHO Representative. The same is mark DD Books ­1. It bears signatures of Dr Olavi ELO at point A . As per mark XD1 actually agreement was between WHO and Dr B N Mittal DDG Leprosy. I have no knowledge whether 46 such like agreements were executed between WHO and Dr B N Mittal. It may be or may not be. I have no knowledge whether SIDA used to support WHO for 19 Districts in India."

59 From the above quoted entire cross examination of PW 59 it clear that not even a suggestion has been given to this witness that funds were not provided by the WHO for utilization and eradication of Leprosy .

60 Ld Defence counsel has relied upon the statement of J J Kobze recorded U/S 161 Cr P C Ex PW58/DA during her defence arguments. Even Mr Kobze in Ex PW58/DA has C C No.57/99 46/192 47 specifically stated that all these cheques issued by WHO were for the purpose of leprosy eradication programme only. Relevant portion of his statement in this regard is as under :

" You were showing me cheques issued by WHO to Dr B N Mittal DDG Leprosy from the account of WHO maintained with ANZ Grindlays bank, Parliament Street. I state that all these cheques have been issued by WHO for the purpose of leprosy eradication programme only."

61 PW41 J O Simon in his cross examination has also deposed that funds received from various agencies were to be utilized for leprosy eradication. Relevant portion of his cross examination in this regard is as under :

" I was also Secretary of Distt Leprosy society Madras. Funds used to come to me through Dy Directorate General Leprosy for purposes of treatment of Leprosy patients in Madras Distt. Vol Dy Director General in turn used to received funds from Foreign Sponsor and the funds used to be redirected to us. It is correct that the funds received by us used to be utilized for leprosy eradication programme." C C No.57/99 47/192 48

62 PW4 in this regard has deposed as follows:

" During 1992 to 1996, Dr B N Mittal was working as Deputy Director in Leprosy Division. There was a social Leprosy Programme of the Govt of India. There were external grant for this programme from WHO. Govt. of India was the main funding agency for this programme. Aid has also come from WHO a Denish Organization. Dr B N Mittal as Dy Director General(DGM) was incharge for running this programme. There was a national committee under the Chairmanship of Secretary ( Health) of Govt of India for running the WHO Programme."

63 In his cross examination this witness has deposed as follows:

" As the funding was from external agencies, the vouchers for expenditure were not required to be put up before the Committee. The spending of money was between the programme officer and the WHO representative . There was no audit of those funds. The programme officer would report to the committee C C No.57/99 48/192 49 about the expenditure incurred and give a brief account of various items of which expenditure have been incurred by him. There was no necessity of looking into the expenditure because it was between programme officer and SR to manage the fund. The committee used to look into the technical aspect of the programme and over all availability of fund for different programmes."

64 PW11 Sh M S Dharamshatru who was the then working as Dy Assistant Director General, Leprosy alongwith accused B N Mittal, has deposed that Leprosy Eradication programme was funded by Govt of India and other agencies. WHO was giving a nominal amount as non budgetary support for implementation of programme. Relevant portion of his deposition is as under:

" Dr B N Mittal was the Deputy Director General. Mr B N Mittal is present in the Court today. During that period Govt of India launched a national leprosy eradication programme. The H.Qs under DGHS there was leprosy section and MDT cell at the state level under State Health Deptt state C C No.57/99 49/192 50 Leprosy office and at the district level, District Leprosy Office. His duty was to plan the activities of programme and get it approved from Ministry of Health for implementation by the states and Union Territory. The programme was funded by Govt of India and World Bank Fund. The programme was supported by some other agencies. The Ministry and DGHS were the authorities to release funds to the State. The States used to give audited statements of accounts for the funds given to them. The external funding used to come to the Govt budgets and then it was released for district programme. WHO gave a nominal amount as non budgetary support , which was utilized in implementation of the programme as per the directions of the Govt. The WHO used to release the money in favour of the identified officer, with intimation to the ministry. After receipt of the fund, it is the duty of the officer to complete the activity and on completion of activity, he will submit the details of accounts. WHO had their systems of audit. If they were satisfied about the activities, they would not question the vouchers C C No.57/99 50/192 51 submitted for explanation."

65 In his cross examination this witness has deposed as follows:

" Till my tenure, it is not within my knowledge, that if any complaint was made by any external agency about misappropriation or misuse of the funds. It is correct that during the respective period, for NLEP Programme, there were no more than one programme officer. There used to be one programme officer in H.Q, one in State and one in District."

66 From the above discussions it is proved beyond reasonable doubts that Govt of India was running the leprosy Eradication programme and was the main funding agency while WHO and other agencies were giving a nominal amount as non budgetary support for implementation of the programme . Such funds were entrusted / place under the domain of accused B N Mittal as DDG Leprosy for utilizing the same for implementation of leprosy Eradication programme and not for his personal use.

ACCOUNT NO.1639 IN THE NAME OF M/S NOVEX C C No.57/99 51/192 52 TRADERS IN STATE BANK OF MYSORE C.P. NEW DELHI 67 According to prosecution accused Mukesh Gupta had opened account no.SIB/9/1639 on 01.08.1991 in the name of Novex Traders, B­6/72, Safdarjung Enclave, New Delhi vide Account Opening form Ex.PW22/A (D­91) in State Bank of Mysore, Connaught Place Branch, impersonating himself as Sat Prakash, as its proprietor, which was introduced by one Rajat Goel at the instance of Kishan Chand Gupta who was the then working as Cashier in State Bank of Mysore, CP Branch. 68 According to GEQD report Ex.PW43/J (D­3) of PW43 T.Joshi, body writing on the account opening form at point Q2, Q4 is in the handwriting of accused Mukesh Gupta. Signatures "Sat Prakash" at point Q5 is also in the handwriting of accused Mukesh Kumar Gupta on account opening form Ex.PW22/A . Similarly, according to GEQD report Ex.PW43/J signature/handwriting on specimen signature card Ex.PW22/B (D­91) at point Q6 are in the handwriting of accused Mukesh Gupta v which he had given at the time of opening of above said C C No.57/99 52/192 53 account in the name of M/s.Novex Traders impersonating as Sat Prakash.

69 PW­3 Virender Kumar Goel has deposed that he had not introduced any account in State Bank of Mysore, CP Branch. No friend of his is working in State Bank of Mysore, CP Branch. This witness was declared hostile on the request of Ld.Prosecutor. He has denied the suggestion given to him by Ld.PP in his cross examination that he had opened an account in the name of his son Rajat Goel in SBI Mysore, CP Branch. He has also denied that he had introduced any account of M/s.Novex Traders opened by Sat Prakash. He has also denied the suggestion that he knew K.C.Gupta and introduced alleged Sat Prakash at the instance of K.C.Gupta at the time of opening account in the name of Novex Traders by signing as Rajat Goel.

70 Prosecution has proved that accused Mukesh Gupta had issued cheque No. 150454 Ex PW16/H (D­97) dated 14.01.93 in sum of Rs.25,000/­ from the account of M/s. Apex Enterprises under his own signature at point Q­50 as Proprietor of the Apex Enterprises. Amount of this cheque was received in cash by C C No.57/99 53/192 54 V.K.Goel whose signature is attested by accused Kishan Chand vide his signature on the back of this cheque at point Q 51. According to GEQD report Ex.43/J signature at point Q­50 is in the handwriting of accused Mukesh Gupta and signature at point Q51 are in the handwriting of Kishan Chand. Accused Kishan Chand was working as Head Cashier, attestation of signatures of V.K.Goel by him proves that V.K.Goel was well known to him. V.K.Goel has appeared in the witness box as PW­3 and has not supported the version of prosecution, therefore, he was declared hostile on the request of ld.PP on the ground that he was suppressing the truth. In his cross examination he has deposed that he does not know K.C.Gupta and Mukesh Gupta. The very fact of issuing above referred cheque by Mukesh Gupta to V.K.Goel and attestation of his signatures by accused K.C.Gupta proves beyond reasonable doubts that he was well known to both these accused but he has intentionally and voluntarily suppressed this fact, thereby proving the version of prosecution. 71 Hon'ble Supreme Court in a latest authority Bhagwan Dass Vs State ( NCT) of Delhi , AIR 2011 SC­1863, in such C C No.57/99 54/192 55 circumstances where a witness has turned hostile, has held that his statement given to police can be taken into consideration. Observation of Hon'ble Supreme Court in this regard is as under:

" Criminal P.C (2 of 1974), S. 162(1), Proviso­ Evidence Act ( 1 of 1872), S.3­ Statement of Police - Hostile witness­ Mother of accused stated before police that her son ( the accused ) had told her that he had killed deceased­ But, when she was confronted with this statement in Court she resiled from her earlier statement and was declared hostile­ Her subsequent denial in Court is not believable because she obviously had afterthoughts and wanted to save her son ( the accused ) from punishment Statement to police can be taken into consideration in view of proviso to S.162(1) Cr P C ­It is duty of Court to separate grain from chaff­ Maxim "falsus in uno falsus in C C No.57/99 55/192 56 omnibus" has no application in India."

72 As discussed above, in case in hand there is documentary evidence to prove that PW 3 V K Goel was well known to accused K C Gupta and also knowing accused M K Gupta . It is proved that accused M K Gupta had issued a cheque of Rs.25,000/­ in favour of V K Goel and he had received the payment of cheque and accused Kishan Chand had attested the signatures of V K Goel on the back of this cheque. Thus this Court is of opinion that stand taken by PW 3 V K Goel is after thought and he intentionally resiled from his statement made before police . In these circumstances, in view of law laid down in Hon'ble Supreme Court in above referred authority , statement made by V K Goel before the police with regard to introduction of this account by him which was opened by Mr Gupta can be safely relied upon.

73 It is argued by Ld.Defence counsel that on account opening form Ex.PW22/A of M/s.Novex Traders by Sat Prakash, head cashier in bracket in the manner like "(Head Cashier)" has been added afterward under the pressure of CBI to falsely C C No.57/99 56/192 57 implicate accused Kishan Chand Gupta in this case, who was incidentally, then working as Head Cashier. 74 Sh.K.K.Davis, who was working as Manager (Account) in State Bank of Mysore, CP Branch at the time when this account was opened and authorized the opening of this account has specifically deposed that he had allowed opening of account no.1639 in the name of M/s.Novex Traders on 1.8.93 which was introduced by Rajat Goel. He has categorically deposed that the account opening form of this account was brought to him by K.C.Gupta, Head Cashier. K.C.Gupta told him that he knew Sat Prakash i.e.why he had written "Head Cashier" below the signature of introducer. Relevant portion of his statement in this regard is as under:

"I have been working in State Bank of Mysore from 1962 to 1999. During 1989 to 1992 I was posted as Manager (Account) State Bank of Mysore Connaught Place Branch, NewDelhi. I have seen D­91 Current Account Opening Form dated 1.8.91 for openingaccountNo.1639 of M/s.Novex Traders. C C No.57/99 57/192 58 Mr.Rajat Goyal has introduced this account. I authorized the opening of this account. Account opening form is Ex.PW22/A. It bears my signatures at point A1. This form was brought to me by Sh.K.C.Gupta Head Cashier of the Branch, Mr.K.C.Gupta told methat he knew Sat Parkash as such I put "Head Casher" below the introduced signatures in portion encircled as 'X'. I do not remember whether Mr. Sat Parkash signed on this form before me. I have seen (D­91) specimen signatures card of account no.1639, which is Ex.PW22/B it bear my signatures at point A"

75 This witness in his cross examination has deposed as follows:

"Account No.1639 of Novex Traders was introduced by Rajat Goel. It does not bears the signatures of Kishan Chand Gupta. Though this account was introduced by Rajat Goyal but Kishan Chand Gupta had taken initiative in this account opening as I have mentioned in braket "Head Casher". It is incorrect to suggest that Kishan Chand Gupta had no role in C C No.57/99 58/192 59 opening of this account. It is wrong to suggest that later on at the instance of CBI I had written the word Head Cashier. It is correct that name of Kishan Chand Gupta is not mentioned on the account opening form Ex.PW22/A. It is incorrect to suggest that I am deposing falsely".

76 PW­22 was a colleague of accused K.C.Gupta, there is no reason why he will depose falsely against K.C.Gupta. Not even a suggestion has been given to this witness that he was having some enmity or motive to falsely name K.C.Gupta . In these circumstances there is no reason to believe this deposition in this regard which has also been duly corroborated by the report of GEQD, as quoted above, who had opined that signatures of alleged Sat Prakash on the account opening form and on the specimen card are in the handwriting of accused Mukesh Gupta. 77 From the above quoted deposition of PW22 K.K.Divas, it is proved that accused K.C.Gupta had brought account opening form of this account by alleged Sat Prakash and he had allowed opening of this account by the alleged Sat Prakash in the name of Novex Traders at the instance of K.C.Gupta. C C No.57/99 59/192 60 78 While opening this account alleged Sat Prakash had given address B­6/72, Safdarjung Enclave, New Delhi. House no.B­6/72 Safdarjung Enclave belongs to Ranjan Kochher. According to him he does not know any person name Sat Prakash and Mukesh Gupta or M/s.Novex Traders and this premises was never used by Novex Traders. Prosecution has produced him as PW­9. His entire deposition is as under:

"I am residing in House no. B­6/72, Safdarjang Enclave, New Delhi since 1987. It was purchased by my brother. We are living in joint family. We had demolished the house in 1991 and had re­built it. Apart from my family, family of my brother and father and mother are also living in this house. We have never let out our premises or any part of it on rent. I do not know any person by the name of Sat Prakash or Mukesh Kumar Gupta. I do not know NovexTraders. This premises had never been used by Novex Traders since the date of our purchase of this house. I or my brother had never used Novex Traders to use our address for conducting their business/correspondence.

XXXX On behalf of Mukesh Gupta,Accused.

C C No.57/99 60/192 61 I have never met Mukesh Gupta till today.

XXXX On behalf of accused Dr.B.N.Mittal, and K.C.Gupta. Nil. Opportunity given".

79 Nothing such has come out in cross examination of this witness to disbelieve the version given by him in his deposition. Thus, it is proved that even the address of Novex Traders, B­6/72, Safdarjang Enclave, New Delhi while opening the account is falsely given and this firm had never existed on this address.

80 Accused Kishan Chand Gupta and Mukesh were well known to each other since their student life. They were class fellow in the school. This fact has been proved by PW20 Rameshwar Dayal. Relevant portion of his statement in this regard is as under:

"Today I have brought the original admission register of the school for the period 1970 to 1972. Admission No.2353 dt. 12.5.70 and admission No.2362 dt.12.5.70 are in respect of Kishan Chand son of Sh.Tek Chand Gupta and Mukesh Kumar Gupta son of Sh.Ram Gopal Gupta. This register was maintained in our C C No.57/99 61/192 62 school in official course of business. Both the entires are Ex.PW20/A and Ex.PW20/B respectively. I have seen the photocopies of these entries attested by our the then Principal Sh.V.B.Bhatnagar whose signature I identified. (Photocopies are retained in the file. Original seen and returned). Forwarding letter issued by the then Principal is Ex.PW20/C and bears his signature at point A".

81 Accused Mukesh Kumar used to accompany accused B.N.Mittal to the bank for withdrawing the amount. PW­7 Subhash Gupta, who was the then working in Grindlays Bank, CP has proved this fact. Relevant portion of his deposition in this regard is as under:

"In 1998 I was working in Grindlays Bank, 10­E, Connaught Place, New Delhi. I worked in this bank from 1988 to 1992 and then from 1995 to till I retired in 2002. I know Dr.B.N.Mittal accused present in this court today. He had A/C. as Dy.Director General, Leprosy. Dr.Mittal used to come to operate this account. I do not remember the account number. Dr.Mittal used to withdrawing the cash amounts C C No.57/99 62/192 63 from this account. Mr.M.K.Gupta also used to accompany him who is present in the court today as an accused.

As Marketing Manager I used to look after high network customers and used to proved them facilities like withdrawal of cash, deposits of cheque and any other banking transaction to be done, on priority basis. Generally Mr.Gupta used to go to cash counter for collecting money. Sometimes he might also gone to cash counter to receive cash.

XXXXXX Cross examination on behalf of Dr.B.N.Mittal.

Whenever Dr.B.N.Mittal used to come to our bank, he used to sit in front of my table and I used to offer him tea or coffee. At times I used to go with him in order to facilitate his work with the bank at the concerned counter. All the activities conducted during my tenure were normal banking activities".

82 From the above discussion it is proved beyond reasonable doubts that accused B.N.Mittal and M.K.Gupta were thick and thin with each other. Similarly, accused K.C.Gupta was thick and thin with accused M.K.Gupta. It is also proved that C C No.57/99 63/192 64 accused M.K.Gupta had opened account no.1639 in the name of Novex Traders as Sat Prakash.

83 Prosecution has proved that accused B.N.Mittal had issued cheque no.436261 Ex.PW13/A (D­72) dt.10.8.91in sum of Rs.18,29,311 in the name of Novex Traders under his signatures at point Q­268 from the account no.01 CEP 1046800 in the name of Dy.Director General (Leprosy) which has been duly credited in the account of M/s.Novex Traders as per statement of account Ex.PW18/C. 84 Prosecution has also proved that accused B.N.Mittal had issued cheque no.436274 Ex.PW13/D (D­75) dt.31.10.91in sum of Rs.4,50,000.00 in the name of Novex Traders under his signatures at point Q­289 from the account no.01 CEP 1046800 in the name of Dy.Director General (Leprosy) which has been duly credited in the account of M/s.Novex Traders as per statement of account Ex.PW18/C. 85 In this way prosecution has proved that accused B.N.Mittal vide above referred two cheques had transferred a total amount of Rs.22,79,311.00 in the account of M/s.Novex Traders. C C No.57/99 64/192 65 86 Prosecution has proved that accused M K Gupta had withdrawn an amount of Rs.17,65,000/­ in cash vide self cheque No 156001 as mentioned in Statement of Account of M/S Novex Trader Ex PW18/C. 87 A self cheque No.156007 Ex PW14/D dated 1.11.91 was issued from account of Novex Traders No.1639 purportedly under the signatures of Sat Parkash as point Q­26 as Proprietor of the firm. Amount of this self cheque was also received in cash by alleged Sat Parkash under his singatures at point Q­27 on the back of this cheque and accused Kishan Chand had attested signatures of alleged Sat Parkash on the back of this cheque vide his signatures at point Q­28. Entire body of this cheque was also filled in at point Q­25.

88 According to GEQD report Ex PW43/J entire body writing of this cheque at Point Q­25, signatures of Sat Parkash at point Q­26 beneath " For Novex Traders" and over " Proprietor"

and signature of Sat Parkash at point Q­27 on the back of this cheque are in the hand writing of accused Mukesh Kumar Gupta. Thus it is proved that actually accused Mukesh Kr Gupta had C C No.57/99 65/192 66 filled in this cheque and signed as Sat Parkash at Point Q­26 and Q­27 and received the payment of this cheque in cash himself by signing at point Q­28 on the back of this cheque.

89 According to GEQD report Ex PW43/J signatures on the back of this cheque under the words " Signature attested is of accused Kishan Chand which proves that accused Kishan Chand had willingly identified accused Mukesh Kr Gupta as Sat Parkash as he was working as Head Cashier in the State Bank of Mysore, and attested his signatures at the time of making payment of this cheque.

90 From the above discussion it is proved by the prosecution that amount of this cheque of Rs.3,56,500/­ was actually received by accused Mukesh Kumar Gupta. 91 Prosecution has proved that cheque No.156006 Ex PW32/G­11 D­105/2 dated 1.11.91 favouring Yourself, was issued from account of Novex Traders No.1639 purportedly under the signatures of Sat Parkash at point Q­24 as Proprietor of the firm for issuing a draft in favour DLF Universal Limited for an amount of Rs.88,350/­. Prosecution has also proved the C C No.57/99 66/192 67 application for issuing DD Ex PW32/G­12 (D­106/1) in favour of DLF Universal Ltd in sum of Rs.88,350/­ which was submitted on behalf of Novex Traders purportedly under the signatures of Sat Parkash at point Q­21 as Proprietor of the firm . Alleged Sat Parkash had also signed on the back of this application Ex PW32/G­12 at point Q­22.

92 According to GEQD report Ex PW43/J signatures at point Q­21 and Q­22 are in the hand writing of accused Mukesh Kumar Gupta. Thus prosecution has proved that accused Mukesh Kr Gupta has submitted this application for issuing DD in a sum of Rs.88,350/­ in favour of DLF Universal Ltd . 93 Prosecution from Statement of account of Novex Traders Ex PW18/C has also proved that this amount of Rs. 88,375/­ including an amount of Rs.25/­ as exchange money for issuing DD had been debited from that account. 94 Prosecution has proved that self cheque No.156002 Ex PW14/D­2 (D­105) dated 19.8.91 in sum of Rs.30,000/­ was issued from account of Novex Traders No.1639 purportedly under the signatures of Sat Parkash as point Q­10 as Proprietor of the C C No.57/99 67/192 68 firm. Amount of this self cheque was also received in cash by alleged Sat Parkash under his signatures at point Q­11 on the back of this cheque. Accused Kishan Chand had also signed at point Q­12 in token of attestation of signatures of alleged Sat Parkash on the back of this cheque at the time of making payment in cash as he was working as Head Cashier. Entire body of this cheque was also filled in at point Q­9.

95 According to GEQD report Ex PW43/J entire body writing of this cheque at Point Q­9, signatures of alleged Sat Parkash at point Q­10 beneath " For Novex Traders" and over "

Proprietor" and signature of Sat Parkash at point Q­11 on the back of this cheque are in the hand writing of accused Mukesh Kumar Gupta. Thus it is proved that actually accused Mukesh Kr Gupta had filled in this cheque and signed as Sat Parkash at Point Q­9 and Q­10 and received the payment of this cheque in cash himself signing as Sat Parkash at point Q­11.

96 According to GEQD report Ex PW43/J signatures at the back of this cheque at point Q­12 is of accused Kishan Chand which proves that accused Kishan Chand had willingly identified C C No.57/99 68/192 69 accused Mukesh Kr Gupta as Sat Parkash as he was working as Head Cashier in the State Bank of Mysore as token of attestation of his signatures at the time of making payment. 97 Prosecution has proved that self cheque No.156003 Ex PW14/D­1 (D­105) dated 9.9.91 in sum of Rs.16,000/­ was issued from the account of Novex Traders No.1639 purportedly under the signatures of alleged Sat Parkash at point Q­14 as Proprietor of the firm. Amount of this self cheque was also received in cash by alleged Sat Parkash under his signatures at point Q­15 on the back of this cheque and accused Kishan Chand had also signed at point Q­16 in token of attestation of signatures of alleged Sat Parkash on the back of this cheque at the time of making payment in cash as he was working as Head Cashier. Entire body of this cheque was also filled in at point Q­13.

98 According to GEQD report Ex PW43/J entire body writing of this cheque at Point Q­13, signatures of alleged Sat Parkash at point Q­14 beneath " For Novex Traders" and over " C C No.57/99 69/192 70

Proprietor" and signature of Sat Parkash at point Q­15 on the back of this cheque are in the hand writing of accused Mukesh Kumar Gupta. Thus it is proved that actually accused Mukesh Kr Gupta had filled in this cheque and signed as Sat Parkash at Point Q­13 and Q­14 and received the payment of this cheque in cash himself signing as Sat Parkash at point Q­15..

99 According to GEQD report Ex PW43/J signatures at the back of this cheque at point Q­16 is of accused Kishan Chand which proves that accused Kishan Chand had willingly identified accused Mukesh Kr Gupta at the time of making payment as Sat Parkash as he was working as Head Cashier in the State Bank of Mysore as token of attestation of his signatures. 100 Prosecution has also proved that self cheque no. 156008 in sum of Rs.5,000/­ and another self cheque no.156009 in sum of Rs.3911/­ was also debited in this account. Amount of which was received in cash by the alleged Sat Prakash from statement of account of M/s.Novex Traders Ex.PW18/C. After the withdrawal of Rs.3911/­ this account was closed. 101 Prosecution has proved that this account was C C No.57/99 70/192 71 opened on 1.8.91 vide account opening form Ex.PW22/A and finally closed on 06.01.92. Except the above referred transactions, this account was closed without any other transaction. Thus, circumstances of opening and closing of this account also proves that this account was purposely opened in the name of dummy firm Novex Traders through the alleged Sat Prakash, who was none else but accused Mukesh.

ACCOUNT NO 1640 OPENED BY ACCUSED B M MITTAL IN THE NAME OF KANAK ADS AS ITS PROPRIETOR IN STATE BANK OF MYSORE.

102 Prosecution has proved that accused B.N.Mittal had opened current account no.1640 in the name of Kanak Ads. G­1 931, Sarojini Nagar, New Delhi vide account opening form Ex.PW5/A under his signatures at point Q140 as its proprietor. Accused Kishan Chand had introduced opening of this account under his signature at point Q141. Address G­1/931 Sarojini Nagar, N Delhi is the residence of accused M K Gupta. Thus it is C C No.57/99 71/192 72 clear that accused B N Mittal had dishonestly opened this account . Had his intention being genuine while opening this account he would given his own residential address. 103 Prosecution has proved that accused B.N.Mittal had issued cheque no.436266 Ex.PW13/B (D­73) dt.17.8.91in sum of Rs.15,25,500/­ in the name of M/s.Kanak Ads. under his signatures at point Q­270 from the account no.01 CEP 1046800 in the name of Dy.Director General (Leprosy) which has been duly credited in the account of M/s.Kanak Ads, as per statement of account Ex.PW32/K3. Prosecution has also proved credit voucher Ex.PW32/J1 (D­104) vide which this cheque was credited in the account of M/s.Kanak Ads. body writing of this credit voucher at point Q88 is in the handwriting of accused Mukesh Gupta as per GEQD report Ex.PW43/J. 104 Prosecution has proved that accused B.N.Mittal had issued cheque no.436268 Ex.PW13/C (D­74) dt.05.09.91in sum of Rs.10,18,260/­ in the name of M/s.Kanak Ads, under his signatures at point Q­272 from the account no.01 CEP 1046800 in the name of Dy.Director General (Leprosy) which has been duly C C No.57/99 72/192 73 credited in the account of M/s.Kanak Ads. as per statement of account Ex.PW32/K3. Prosecution has also proved credit voucher Ex.PW32/J2 (D­104/2) vide which this cheque was credited in the account of M/s.Kanak Ads., body writing of this credit voucher at point Q 87 is in the handwriting of accused Kishan Chand Gupta as per GEQD report Ex.PW43/J. 105 Prosecution has proved that accused B.N.Mittal had issued cheque no.436264 Ex.PW13/F (D­77) dt.13.08.91in sum of Rs.7,00,000/­ in the name of M/s.Kanak Ads. under his signatures at point Q­605 from the account no.01 CEP 1046800 in the name of Dy.Director General (Leprosy) which has been duly credited in the account of M/s.Kanak Ads. as per statement of account Ex.PW32/K3.

106 Prosecution has proved that accused B.N.Mittal had issued a self cheque No.156026 Ex PW32/J3 (D­103) dated 17.8.91 in sum of Rs.6,00,000/­ from account of Kanak Ads No. 1640 under his own signatures at point Q­41 as Proprietor of the Kanak Ads. Amount of this self cheque was paid in cash which was received by accused Mukesh Kumar Gupta under his C C No.57/99 73/192 74 signature on th back of this cheque at point Q 41C. This cheque also bears signatures of accused B.N.Mittal on the back at point Q41A and signatures of accused Kishan Chand at point Q41B. It was a bearer cheque, payment of which was received by accused Mukesh Gupta on behalf of accused B.N.Mittal. According to GEQD report Ex.41/J signature at point Q­41 and 41A are in the handwriting of accused B.N.Mittal and signature at point Q41 C is in the handwriting of Mukesh Gupta and signature at point Q­41B is in the handwriting of accused Kishan Chand Gupta. 107 Prosecution has proved that accused B.N.Mittal had issued a self cheque No.156029 Ex PW32/J4 (D­103) dated 19.8.91 in sum of Rs.1,00,000/­ from account of Kanak Ads No. 1640 under his own signatures at point Q­147 as Proprietor of the Kanak Ads. Amount of this self cheque was paid in cash which was received by alleged Sat Prakash under his signature at point Q 149 on behalf of accused B.N.Mittal, who had also signed this cheque on its back at point Q 148. This cheque also bears signatures of accused B.N.Mittal at point Q147. According to GEQD report Ex.41/J signature at point Q­147 and 148 are in the C C No.57/99 74/192 75 handwriting of accused B.N.Mittal and signatures at point Q149 of alleged "Sat Prakash" is in the handwriting of accused Mukesh Gupta. It proves that actually accused Mukesh Gupta had received the amount of this cheque in cash signing as Sat Prakash. 108 Prosecution has proved that a self cheque no. 156031 Ex.PW5/B7 (D­103) dated 29.8.91 in sum of Rs. 3,75,000/­ from account of Kanak Ads No.1640 issued by accused B N Mittal under his signatures at point Q­153A as Proprietor of the Kanak Ads. Bodywriting of this cheque at point Q­153 is in the handwriting of accused Kishan Chand as per GEQD report Ex.PW43/J. Amount of this self cheque was paid in cash which was received by alleged Sat Prakash under his signature at point Q 154 on behalf of accused B.N.Mittal, who had also signed this cheque on its back . According to GEQD report Ex.41/J signature at point Q­153A is in the handwriting of accused B.N.Mittal and signatures at point Q154 of alleged "Sat Prakash" is in the handwriting of accused Mukesh Gupta. It proves that actually accused C C No.57/99 75/192 76 Mukesh Gupta had received the amount of this cheque in cash signing as Sat Prakash. It proves that all the three accused were acting in connivance and conspiracy with each other hatched by them.

109 Prosecution has proved that accused B.N.Mittal had issued cheque No.156030 Ex PW5/B­6 (D­103) dated 22.8.91 in sum of Rs.8,00,000/­ , in favour of Vinita Exports from the account of Kanak Ads No.1640 under his own signatures at point Q­152 as Proprietor of the Kanak Ads. This cheque was deposited in the account of Vinita Export vide credit slip Ex PW32/K­4 (D­102) . Body writing of this credit slip at point Q­165 is in the hand writing of accused K C Gupta according to GEQD report Ex PW43/J which also proves that accused K C Gupta was in connivance and conspiracy of accused B N Mittal and actively assisting him in siphoning of the amount . Amount of this cheque was duly credited in the account of Vinita Export which is proved from the statement of account Ex PW17/A of Vinita Export.

C C No.57/99 76/192 77 110 Current account No.1641 in the name of Vinita Export was opened on 3.8.91 by Vinita Mittal 938 MS Flats Vikas Kunj Vikas Puri, New Delhi on 3.8.91 as its Proprietor vide account opening form Ex PW16/C. This account was introduced by accused Kishan Chand under his signatures at point Q­138. Writing at point Q­135 on Ex PW16/C is in the hand writing of accused B N Mittal as per the report of GEQD Ex PW43/J. Vinita Mittal is the daughter in law of accused B N Mittal. 111 Prosecution has proved cheque no.156032 Ex.PW5/B6 (D­103) dated 12.9.91 in sum of Rs.75,000/­ in favour of Mukesh Gupta was issued from account of Kanak Ads No.1640 under the signatures of accused B.N.Mittal at point Q­155 as Proprietor of the Kanak Ads. Body writing of this cheque at point Q­155 is in the handwriting of accused B N Mittal as per GEQD report Ex.PW43/J. Amount of this cheque was paid in cash which was received by accused Kishan Chand under his signature at point Q 157 on the back of this cheque. According to GEQD report Ex.43/J signature at point Q­157 is C C No.57/99 77/192 78 in the handwriting of accused Kishan Chand . It also bears signature of accused B N Mittal at point Q­156. Interestingly enough it does not bears signatures of accused Mukesh Gupta in whose name this cheque was issued. It again proves that all the three accused were acting in connivance and conspiracy with each other.

112 Prosecution has proved that cheque no.156035 Ex.PW5/B5 (D­103) dated 14.9.91 in sum of Rs.5,60,000/­ in favour of Mukesh Gupta was issued from account of Kanak Ads No.1640 under the signatures of accused B.N.Mittal at point Q­158 as Proprietor of the Kanak Ads. Body writing of this cheque at point Q­158 is in the handwriting of accused B N Mittal as per GEQD report Ex.PW43/J. On the back of this cheque under the signature of accused B N Mittal it is written as follows:

" Signature of Mukesh Kumar Gupta identify"

Under this endorsement it bears signature of accused Kishan Chand at point Q­159 . According to GEQD C C No.57/99 78/192 79 report Ex PW43/J writing at point Q­159 is in the hand writing of accused Kishan Chand. This cheque does not bear the signature of accused Mukesh Gupta on it back and front. It is surprising that how Kishan Chand had attested signature of Mukesh Kr Gupta when this cheque actually does not bears his signature anywhere. It proves a running criminal conspiracy between all the three accused.

113 Prosecution has proved that cheque no.156033 Ex.PW32/K­1 (D­103) dated 13.9.91 in sum of Rs.2,00,000/­ and cheque No.156037 Ex.PW5/B1 (D­103) in sum of Rs.40,000/­ in favour of Amit Mittal S/O B N Mittal were issued from account of Kanak Ads No.1640 under the signatures of accused B.N.Mittal at point Q­89 and Q161 as Proprietor of the Kanak Ads. Both these cheques were credited in the account of Amit Mittal son of B.N.Mittal through clearing in ANZ Grindlays Bank, Connaught Place Branch, New Delhi.

114 Prosecution has proved that cheque no.156034 Ex.PW5/B3/Ex.PW32/K2 (D­103) dated 13.9.91 in sum of Rs. C C No.57/99 79/192 80 1,00,000/­ and cheque No.156038 Ex.PW5/B3 (D­103) in sum of Rs.40,000/­ in favour of Deepak Mittal S/O B N Mittal were issued from account of Kanak Ads No.1640 under the signatures of accused B.N.Mittal at point Q­90 and Q160 as Proprietor of the Kanak Ads. Both these cheques were credited in the account of Deepak Mittal son of B.N.Mittal through clearing in the HSBC Bank, New Delhi.

115 Prosecution has proved that cheque no.156028 Ex.PW14/C1 (D­103) dated 20.08.91 in sum of Rs.3,50,000/­ in favour of Mr.O.P.Dawar was issued from account of Kanak Ads No.1640 under the signatures of accused B.N.Mittal at point Q­150 as Proprietor of the Kanak Ads. Payment of this cheque was made in cash to O.P.Dawar. Signatures of O.P.Dawar were verified by accused Kishan Chand on the back of this cheque vide his signatures at point Q­151. According to GEQD report Ex. 43/J signature at point Q­151 is in the handwriting of accused Kishan Chand.

116 Accused B.N.Mittal was purchasing property through O.P.Dawar, also having friendly terms with him and advancing C C No.57/99 80/192 81 him loan. Prosecution has produced O.P.Dawar in the witness box as PW25. Relevant portion of the statement of PW­25 in this regard is as under:

"Since 1989 I am doing property business. Earlier my office was at 5/74 Malviya Nagar. I know Dr.B.N.Mittal whom I can identify (Identity not disputed). He came to my office in 1993 had made property business for Dr.B.N.Mittal. Mr.Deepak Mittal s/o Dr.B.N.Mittal and Amit Mittal s/o Dr.B.N.Mittal had purchased one plot each through me. The same plots were constructed by me for them. Both the sons were dealing with me themselves for these plots. Dr.B.N.Mittal had become friend of mine thereafter. Whenever I required finance Dr.B.N.Mittal used to finance me. About 6 to 8 lacs per plot was given by cheque. Some amount was also paid in cash but the amount paid in cash I do not remember. Amit Mittal and Deepak Mittal had paid the amount for construction from stage to stage. I got opened accounts of Dr.B.N.Mittal in Oriental Bank of Commerce, Sarvpriya Vihar Branch. I introduced him. Today I have seen D­103 (9) cheque no.156028 for Rs.3,50,000/­ issued C C No.57/99 81/192 82 by B.N.Mittal in favour of mine. I identify this signatures on it. It is a bearer cheque which is Ex.PW14/C­1. It was issued for a cash loan from him."

117 From the above discussion, It is proved that accused B.N.Mittal had transferred a total amount of Rs.32,43,760/­ from account no.01 CEP 1046800 in the name of Dy.Director General (Leprosy) with ANZ Grindlays Bank, Connaught Place, New Delhi to the current account no.1640 in the name of Kanak Ads. opened by him as its proprietor and had transferred/withdrawn in cash himself a total amount of Rs.32,40,000/­. 118 According to CCS Conduct Rule 15 no government employee shall except with the previous sanction of the Government can engage directly or indirectly himself in any trade or business. From the above discussion it is proved beyond reasonable doubts that accused B.N.Mittal being a public servant without any previous sanction from the Government had involved himself in business under the name and style of M/s.Kanak Ads and opened current account no. C C No.57/99 82/192 83 1640 as its proprietor under his signatures. It is also proved from the above discussion beyond reasonable doubt that he had transferred a total amount of Rs.32,43,760/­ in his above referred account, himself from account no.01CEP 1046800 in the name of Dy.Director General (Leprosy), wherein the amount received from WHO and UNICEF as grant, for running Leprosy eradication programmes was deposited. This very act of his transferring the official amount from account no.01CEP 1046800 in the name of Dy.Director General (Leprosy) in his firms account amounts to abuse of his official position as Dy.Director General (Leprosy) i.e. a public servant.

ACCOUNT NO.1696 IN THE NAME OF APEX ENTERPRISES OPENED BY MUKESH KUMAR GUPTA AS ITS PROPRIETOR.

119 Prosecution has proved that CC Account no.1696 was was opened on 3.3.92 in State Bank of Mysore, CP Branch, New Delhi in the name of Apex Enterprises, 156, Ring Road, Market C C No.57/99 83/192 84 Sarojini Nagar, New Delhi for running business gift items, novalties and stationary as mentioned while opening this account vide account opening form Ex.PW16/D (D­96) by accused Mukesh Kumar Gupta as its proprietor under his signatures at point Q145 at the time of opening of this account. This account was introduced by accused Kishan Chand vide his signatures at point Q­146. According to GEQD report Ex.PW43/J body writing on the account opening form Ex.PW16/D at point Q143,144 and 145 is in the handwriting of accused Mukesh Kumar and writing at point Q146 on it is in the handwriting of accused Kishan Chand. 120 Prosecution has proved that no such firm has ever existed or run from 156, Ring Road, Market Sarojini Nagar, New Delhi, which is the address given by Mukesh Gupta while opening the above account. PW2 Sh.Jitender Arora has deposed that he was and is running his business from the premises 156 Ring Road, Market Sarojini Nagar, New Delhi and has not allowed accused M.K.Gupta to run taxi service from the said address. In this regard his entire deposition is as under:

C C No.57/99 84/192 85

"I am in tent house business at 156 Ring Road, New Delhi. I know Mr.M.K.Gupta, accused present in court. Since when I am sitting at my business shop, I had not allowed any person to run taxi service from 156 Ring Road. I had not allowed accused M.K.Gupt to run taxi services from the said address. I had also not allowed M.K.Gupta to receive any correspondence at the said address.

XXXXXX by Sh.R.S.Jamuar, Adv.for M.K.Gupta.

Premises 156 Ring Road is 8' x 10' in measurement. There is no other shop in the said premises. It is a single storey building. I am sitting in the said address for the last 7­8 years. 156 Ring Road stands in the name of my father. I do not remember if I shown any title deed of this plot to CBI or not. I do not remember if they had seized any document from me. Again said I had not handed over any document to CBI.

XXXXXX on behalf of another accused.

Nil opportunity given".

121 Prosecution has also produced Pawan Kumar, PW8 to prove this fact that firms Apex Enterprises never existed at shop C C No.57/99 85/192 86 no.156, Ring Road Market, Sarojini Nagar, New Delhi. Entire deposition of PW­8 Pawan Kumar is as under:

"I am running a tent house and STD booth at shop no. 156 Ring Road Market, Delhi (Sarojini Nagar). The shop was allotted to my grand father in 1965­65 and thereafter my father was running the business on this shop. It was allotted to my grandfather before my birth. I had not allowed anyone to use the address of my shop for any purpose. I do not know any Gandharva Associates and Apex Enterprises. No such firm is running their business from my shop's address. I know Mr.Mukesh Kumar Gupta. He is not running any firm from my shop's address. I do not know Mr.Krishan Chand Gupta.

XXXXX on behalf of accused M.K.Gupta I am sitting on the shop for the last 10 years. My elder brother is also sitting with me. I have no knowledge how my grandfather or my father was running this business. I or my brother had not given any document relating to the shop to the CBI. I do not remember when my shop was numbered.

XXXXXX on behalf of other accused.

C C No.57/99 86/192 87

nil. Opportunity given".

123 From the above discussion it is proved beyond reasonable doubts that Apex Enterprises had never existed/run from 156, Ring Road Market, Sarojini Nagar, New Delhi. Actually it was a dummy firm floated by accused Mukesh Kumar Gupta in connivance and consipiracy with his co­accused with the object to facilitate the siphoning of the amount illegally. 124 Prosecution has proved that accused B.N.Mittal had issued three cheques no.550343 Ex.PW32/H7 (D­76) dt.15.04.93 in sum of Rs.4,77,000/­, cheque no.550323 Ex.PW24/D (D­78) dt. 25.12.92 in sum of Rs.17,52,320/­ and cheque no.550327 Ex.PW24/C (D­79) dt.20.01.93 in the sum of Rs.21,35,650/­, in the name of M/s.Apex Enterprises under his signatures at point Q­409, 607 and 609 from the account no.01 CEP 1046800 in the name of Dy. Director General (Leprosy) which had been duly credited in the account of M/s.Apex Enterprises as per statement of account Ex.PW32/H31. Prosecution has also proved three credit vouchers Ex.PW32/H6A, Ex.PW32/H5 and Ex.PW32/H1 vide which these cheques were deposited in the account of M/s.Apex C C No.57/99 87/192 88 Enterprises, body writing on these credit vouchers at point Q 108, 109 and 97 is in the handwriting of accused Mukesh Kumar Gupta as per GEQD report Ex.PW43/J. 125 Prosecution has proved that accused Mukesh Gupta had issued a self cheque No.150452 Ex PW32/H2 (D­97) dated 29.12.92 in sum of Rs.10,20,000/­ from the account of M/s.Apex Enterprises under his own signature at point Q­95 as Proprietor of the Apex Enterprises. Amount of this self cheque was received in cash by accused M K Gupta vide his signature on the back of this cheque at point Q 96. According to GEQD report Ex.43/J signature at point Q­95 and 96 are in the handwriting of accused Mukesh Gupta.

126 Prosecution has proved that accused Mukesh Gupta had issued a self cheque No. 150451 Ex PW32/H3 (D­97) dated 30.12.92 in sum of Rs.7.00,000/­ from the account of M/s.Apex Enterprises under his own signature at point Q­45 as Proprietor of the Apex Enterprises. Amount of this self cheque was received in cash by accused M K Gupta vide his signature on the back of this cheque at point Q 46. According to GEQD report Ex.43/J C C No.57/99 88/192 89 signature at point Q­45 and 46 are in the handwriting of accused Mukesh Gupta.

127 Prosecution has proved that accused Mukesh Gupta had issued a self cheque No. 150453 Ex PW32/H4 (D­97) dated 04.01.93 in sum of Rs.5,000/­ from the account of M/s.Apex Enterprises under his own signature at point Q­48 as Proprietor of the Apex Enterprises. Amount of this self cheque was received in cash by accused M K Gupta vide his signature on the back of this cheque at point Q 49. According to GEQD report Ex.43/J signature at point Q­48 and 49 are in the handwriting of accused Mukesh Gupta.

128 Prosecution has proved that accused Mukesh Gupta had issued a self cheque No. 150455 Ex PW32/H8 (D­97) dated 22.01.93 in sum of Rs.10,55,000/­ from the account of M/s.Apex Enterprises under his own signature at point Q­110 as Proprietor of the Apex Enterprises. Amount of this self cheque was received in cash by accused M K Gupta vide his signature on the back of this cheque at point Q 111. According to GEQD report Ex.43/J signature at point Q­110 and 111 are in the C C No.57/99 89/192 90 handwriting of accused Mukesh Gupta.

129 Prosecution has proved that accused Mukesh Gupta had issued a self cheque No. 150457 Ex PW32/H12 (D­97) dated 25.01.93 in sum of Rs.8,30,000/­ from the account of M/s.Apex Enterprises under his own signature at point Q­91 as Proprietor of the Apex Enterprises. Amount of this self cheque was received in cash by accused M K Gupta vide his signature on the back of this cheque at point Q 92. According to GEQD report Ex.43/J signature at point Q­91 and 92 are in the handwriting of accused Mukesh Gupta.

130 Prosecution has proved that accused Mukesh Gupta had issued a self cheque No. 150458 Ex PW32/H13 (D­97) dated 20.01.93 in sum of Rs.25,000/­ from the account of M/s.Apex Enterprises under his own signature at point Q­52 as Proprietor of the Apex Enterprises. Amount of this self cheque was received in cash by accused M K Gupta vide his signature on the back of this cheque at point Q 53. According to GEQD report Ex.43/J signature at point Q­52 and 53 are in the handwriting of accused Mukesh Gupta.

C C No.57/99 90/192 91 131 Prosecution has proved that accused Mukesh Gupta had issued a self cheque No. 150459 Ex PW32/H21 (D­97) dated 04.02.93 in sum of Rs.17,000/­ from the account of M/s.Apex Enterprises under his own signature at point Q­54 as Proprietor of the Apex Enterprises. Amount of this self cheque was received in cash by accused M K Gupta vide his signature on the back of this cheque at point Q 55. According to GEQD report Ex.43/J signature at point Q­54 and 55 are in the handwriting of accused Mukesh Gupta.

132 Prosecution has proved that accused Mukesh Gupta had issued a self cheque No. 150462 Ex PW32/H20 (D­97) dated 27.02.93 in sum of Rs.6,000/­ from the account of M/s.Apex Enterprises under his own signature at point Q­56 as Proprietor of the Apex Enterprises. Amount of this self cheque was received in cash by accused M K Gupta vide his signature on the back of this cheque at point Q 57. According to GEQD report Ex.43/J signature at point Q­56 and 57 are in the handwriting of accused Mukesh Gupta.

133 Prosecution has proved that accused Mukesh Gupta C C No.57/99 91/192 92 had withdrawn the amount of three cheques No. 150460, 150461, 150464 for an amount of Rs.2000/­, Rs.2000/­ and Rs. 7000/­ on 08.02.93, 15.2.93 and 19.4.93 respectively as per statement of account Ex PW32/H31 of Apex Enterprises. 134 In this way, prosecution has proved that accused M.K.Gupta had withdrawn a total amount of Rs.36,69,000/­ in cash by issuing self cheques from the above said account of Apex Enterprises.

135 Prosecution has proved that accused Mukesh Gupta had issued cheque No. 150454 Ex PW16/H (D­97) dated 14.01.93 in sum of Rs.25,000/­ from the account of M/s.Apex Enterprises under his own signature at point Q­50 as Proprietor of the Apex Enterprises. Amount of this cheque was received in paid in cash to V.K.Goel, signature of whom are attested by accused Kishan Chand vide his signature on the back of this cheque at point Q

51. According to GEQD report Ex.43/J signature at point Q­50 is in the handwriting of accused Mukesh Gupta and signature at point Q51 are in the handwriting of Kishan Chand. Accused Kishan Chand was working as Head Cashier, attestation of C C No.57/99 92/192 93 signatures of V.K.Goel by him proves that V.K.Goel was well known to him. V.K.Goel has appeared in the witness box as PW­3 and has not supported the version of prosecution, therefore, he was declared hostile on the request of ld.PP on the ground that he was suppressing the truth. In his cross examination he has deposed that he does not know K.C.Gupta and Mukesh Gupta. The very fact of issuing above referred cheque by Mukesh Gupta to V.K.Goel and attestation of his signatures by accused K.C.Gupta proves beyond reasonable doubts that he was well known to both these accused but he has intentionally and voluntarily suppressed this fact, thereby proving the version of prosecution.

136 Prosecution has proved that accused Mukesh Gupta had issued cheque No. 150456 Ex PW32/H9 (D­97) in the name of yourself for the purpose of issuing two demand drafts in the name of B.N.Mittal for an amount of Rs.1,00,000/­ each dated 23.1.93 in sum of Rs.2,00,050/­ from the account of M/s.Apex Enterprises under his own signature at point Q­102 as Proprietor of the Apex Enterprises. Accused Mukesh Gupta had C C No.57/99 93/192 94 also submitted two applications for issuing the above referred DDs in the name of B.N.Mittal Ex.PW32/H10 and PW32/H11 under his signatures at point Q98 and Q100. He had also received both the DDs issued qua the above referred applications under his signatures at point Q99 and Q101 on the back of both these applications. According to GEQD report Ex.43/J signature at point Q­98 to Q102 are in the handwriting of accused Mukesh Gupta.

137 Prosecution has proved that accused Mukesh Gupta had issued cheque No. 150465 Ex PW32/H17 (D­97) in the name of yourself for the purpose of issuing demand draft in the name of DLF Universal Ltd. for an amount of Rs.4,69,157/­ dated 19.4.93 from the account of M/s.Apex Enterprises under his own signature at point Q­107 as Proprietor of the Apex Enterprises. Accused Mukesh Gupta had also submitted an application for issuing the DD in the name of DLF Universal Ltd Ex.PW32/H18 under his signatures at point Q106. According to GEQD report Ex. 43/J signature at point Q­106 and Q107 are in the handwriting of accused Mukesh Gupta.

C C No.57/99 94/192 95 138 Prosecution has also proved vide Ex PW58/E ( collectively ) that accused B N Mittal had purchased a Flat No. 103/12, in Silver oak Apartment, DLF Qutub Enclave Complex at Gurgaon . From ExPW58/E ( collectively ) it is also proved that accused B N Mittal had deposited above referred draft towards the final payment of the costs of apartment. 139 According to CCS Conduct Rule 15 no government employee shall except with the previous sanction of the Government can engage directly or indirectly himself in any trade or business. From the above discussion it is proved beyond reasonable doubts that accused Mukesh Kumar Gupta inspite of being a public servant without any previous sanction from the Government had involved himself in the business under the name and style of M/s. Apex Enterprises and opened current account no.1696 as its proprietor under his signatures. It is also proved from the above discussion beyond reasonable doubt that he had received a total amount of Rs.43,64,970/­ in his above referred account, from account C C No.57/99 95/192 96 no.01CEP 1046800 in the name of Dy. Director General (Leprosy), vide three cheques referred above , issued by accused B N Mittal under his signatures as Dy Director Leprosy wherein the amount received from WHO and UNICEF as grant, for running Leprosy eradication programmes was deposited. Out of the total amount of Rs. 43,64,970/­ he had withdrawn a total amount of Rs. 36,69,000/­ in cash by issuing self cheques and had got issued two DDs of one lac each in the name of accused B N Mittal and also purchased a DD in sum of Rs.4,69,157/­ in the name of DLF Universal Ltd through which accused B N Mittal had made final payment towards the costs of Silver Oaks Apartment No. 103/12, DLF Gurgaon and had also issued a cheque in the name of V K Goel in a sum of Rs.25,000/­ This very act of his receiving the above referred amount from the account no.01CEP 1046800 in the name of Dy. Director General (Leprosy) in his firms account amounts to abuse of his official position as a public servant.

C C No.57/99 96/192 97 ACCOUNT NO 1810 OPENED BY B N MITTAL IN SBI TEYNAMPET MADRAS.

140 Prosecution has proved D D No. 663192 dt. 10.9.92 Ex PW 12/A­1 in sum of Rs.2,05,000/­ in the name of accused B N Mittal issued from account No.01CEP 1046800 in the name of Dy. Director General (Leprosy), A N Z Grindlays Bank,CP Branch payable at Madras. As per statement of account Ex PW 7/A­10 of account No.01CEP 1046800 in the name of Dy. Director General (Leprosy) accused B N Mittal got issued DD No. 663192 on 10.9.92.

141 Prosecution has also proved that accused B N Mittal had opened a saving bank account no.1810 in SBI, Teynampet Branch, Madras, furnishing the address of 511 First Wed Street Kamraj Nagar, Thiruvanmiyur, Madras­41. PW41 Dr. J O Siman had introduced opening of this account by accused B N Mittal. Accused B N Mittal has also given the address of J O Siman while opening this account. Relevant portion of PW41 J O Siman in this regard is as under:

" I have seen Ex PW 41/A relating to account No. C­8/1810 C C No.57/99 97/192 98 opened in the name of Dr. Baij Nath Mittal, on being introduced by me. It contains my address 511 First Wed Street Kamraj Nagar, Thiruvanruiyur, Madras­41 as such in Madras Dr. Baij Nath Mittal had used my residential address for opening this account."

142 Accused B N Mittal had deposited the above referred DD in sum of Rs.2,05,000/­ Ex PW 12/A­1 in account no.1810 opened by him in SBI, Teynampet Branch, Madras, vide credit voucher Ex PW 42/F. Prosecution has proved this fact through statement of account Ex PW 42/F vide entry dt. 14.9.92. 143 Prosecution has proved that accused B N Mittal had issued cheque No. Ex PW42/H (D­30) dt. 13.9.92 in sum of Rs.2 lac in favour of Adharshila Holdings and Credits Pvt. Ltd. , under his signatures at point Q256. According to GEQD report Ex PW 43/J signatures at point Q256 are in the handwriting of accused B N Mittal.

144 Adharshila Holdings and Credits Pvt. Ltd. is a Pvt. Ltd. Company floated by Amit Mittal s/o B N Mittal, Deepak Mittal s/o B N Mittal and Vinita Mittal w/o Deepak Mittal. C C No.57/99 98/192 99 Prosecution has proved Form No.32 of this company issued by ROC Ex PW 26/B. Thus, prosecution has proved that accused B N Mittal ultimately transferred the above referred amount of Rs.2 lac to company of his sons and daughter in law through his account No.1810, SBI, Teynampet Branch, Madras. 145 In this regard a specific question No.9 has been put to accused B N Mittal in his statement recorded U/S 313 Cr P C to which he has replied as follows:.

" Ans. It is a matter of record. The money was utilized for leprosy project in Madras ."

146 But from the above discussion it is proved beyond reasonable doubt that above referred DD of Rs.2,0,5000/­ was utilized by accused B N Mittal for the use of his son's company and not utilized for leprosy project at Madras. 147 Prosecution has proved D D No. 665209 dt. 15.5.93 Ex PW 12/A­5 (D­60) in sum of Rs.5,10,000/­ in the name of accused B N Mittal issued from account No.01CEP 1046800 in the name of Dy. Director General (Leprosy), A N Z Grindlays Bank,CP Branch payable at Madras. As per statement of account C C No.57/99 99/192 100 Ex PW 7/A­14 of account No.01CEP 1046800 in the name of Dy. Director General (Leprosy) accused B N Mittal got issued DD No. 665209 dt. 15.5.93.

ACCOUNT   NO   587   OPENED   BY   SH   B   N   MITTAL   IN 

VYASA                BANK                LTD              BOWENPALLY 

BRANCH ,SECUNDRABAD .

148              Accused   B   N   Mittal   had   opened     a   saving   bank 

account   no.587   in     Vaisya   Bank   Ltd.   Bowenpally   Branch, 

Secundrabad.    In   this  regard  PW 50  Majety  Venkatesawra  Rao 

has deposed  as under:

" I was working as Branch Manager in Vysya Bank Ltd situated at Bowenpally Secundrabad during the period from January 1998 to August 2001. Bowenpally is an extension counter for Vysya Bank General Bazar Branch Secundrabad. I have seen D­31 i e account opening form duly filled up by Dr B N Mittal in prescribed format of our bank. Sh B Rama Rao, incharge Manager of the Branch on 18.3.93 allowed the opening of this account under his signatures at point A which I identify as I had occasion to see his signatures in our bank record, the same is already Ex C C No.57/99 100/192 101 PW43/D . I have seen D­31 i e statement of account No.587 maintained in our bank in the name of Dr B N Mittal, certified by me under my signature at point A on both sheets after affixing the bank official seal the same is Ex PW50/A. ( Two Sheets). 149 Out of the above amount of Rs.5,10,000/­ accused B N Mittal had deposited Rs.10,000/­ in the above referred account no.587. Prosecution has proved this fact through statement of account Ex PW 50/A vide entry dt. 20.5.93.

150 Prosecution has proved that accused B N Mittal has got issued four numbers of fixed deposits on 20.5.93 which are as follows:

1) Rs.1,00,000/­, Akshay Deposit Certificate No. 23/93

2) Rs.1,00,000/­, Akshay Deposit Certificate No. 22/93

3) Rs.1,00,000/­, Akshay Deposit Certificate No. 21/93

4) Rs.2,00,000/­, Akshay Deposit Certificate No. 20/93

151 In this regard prosecution has proved four credit voucher Ex PW50/C to Ex PW50/F , three of which are in sum of Rs. One lac each and Ex PW50/C is in sum of Rs.2 lac. In this way prosecution has proved that accused B N Mittal had utilised the C C No.57/99 101/192 102 entire amount of Rs.5,10,000/­ of D D No. 665209 dt. 15.5.93 Ex PW 12/A­5 (D­60) issued from account No.01CEP 1046800 in the name of Dy. Director General (Leprosy), A N Z Grindlays Bank,CP Branch.

152 Accused B N Mittal got above referred four Akshaya Deposit Certificates prematurely encashed by obtaining four DDS in his own name, D D No. 149722 Ex PW 50/1 dt. 12.2.94 in sum of Rs.2,14,955/­ and three DDs No. 149723 to 149725 Ex PW 50/2 to Ex. PW50/4 dt. 12.2.94 in sum of Rs.1,07,477/­ each, all payable at Delhi.

153 PW50 Majety Venkatesawra Rao has deposed as under:

" I have seen D­32 in four sheets i e pay in slip relating to ledger folio No.20/1, 23/1, 22/1 and 21/1 through which Rs.2,00,000/­ Rs.1,00,000/­ Rs.1,00,000/­ and 1,00,000/­ were deposited by Dr B N Mittal under Akshaya Deposit Certificate in Vysya Bank . At point A a bank stamp is affixed on the face of these pay in slips which are Ex PW50/C to PW50/F. Today I have seen additional documents 8 to 11 already Ex PW C C No.57/99 102/192 103 43/E to Ex PW 43/H. All are fixed deposit receipts in the name of Dr. B N Mittal which bears the signature of B Rama Rao, the then Branch Manager at points A on each FDR. All these FDRs were prematurely got encashed by Dr. B N Mittal vide endorsements to the above effect on each FDR at points B. On the back of all these FDRs bears the signatures of B N Mittal at points C. All the payments of these FDRs were made at Bowenpally branch, Secundrabad vide demand drafts qua the each FDR. I have seen the demand drafts issued qua these FDRs which also bears the signatures of Rama Rao, the then Branch Manager at point A. The same are Ex PW 50/1 to Ex PW 50/4 (D­14to D­17). Today I have seen Account Opening Form of Dr. B N Mittal (D31) already Ex PW 43/D. The same is introduced by B Rama Rao, the the Branch Manager at point A, specimen signature card is already Ex PW 43/C. The same bears the signatures of B Rama Rao, the the Branch Manager at point A."

154 In his cross examination he has deposed as follows:

" I was posted as Branch Manager with Bowenpally Branch, Secundrabad from 2001 to 2004. Documents that I have identified C C No.57/99 103/192 104 today pertain to the year 1993. I had not dealt with all these transactions myself. B Rama Rao, the then Branch Manager was not examined by CBI in my presence. B N Mittal had never executed any document in my presence. It is wrong to suggest that identification done by me is wrong and done under the instructions of CBI. I am not aware who had deposited the amount of FDRs referred by me in my examination in chief. The encashment of FDRs prematurely was not done during my tenure. The amount was transferred to the saving bank account of Dr. B N Mittal as per record. No cash payment can be made of any amount of FDR above Rs. 50,000/­. My statement was recorded by CBI. It is correct that in my statement recorded U/s 161 Cr PC I had not referred that I can identify the signature of B Rama Rao or Dr. B N Mittal. I have seen Ex PW50/C to Ex PW 50/F. None of these documents which is application form for Akshay Fixed Deposit Receipt , bears the signatures of the person who deposited the amount and made a request for preparation of FDR. It is wrong to suggest that I am deposing falsely at the instance of IO. It is wrong to suggest that I am an incompetent witness as I C C No.57/99 104/192 105 am not aware about the facts of the case"

ACCOUNT   NO   500150     OPENED   BY   ACCUSED   B   N 

MITTAL IN ABN AMRO BANK , NEW DELHI.

155           Prosecution has proved that accused B N Mittal had 

opened a saving bank account no.500150 in ABN Amro Bank, New Delhi Ex PW46/A (D­86) in his own name on 26.10.91. Prosecution has also proved statement of account of this account Ex PW46/H. Accused B N Mittal had deposited above referred DD for Rs.2,14,955/­ Ex PW 50/1 issued from Vaisya Bank Ltd. Sikanderabad in this account on 22.2.94.

156 In this regard PW46 Sh. Kamal Kant Hindorani has deposed as follows:

"I had been working in ABN Amro Bank, New Delhi in various capacity from 1992 to 2000. I had worked with V R Setu Raman who was Manager, Operation in our Bank.

I have seen D­86 i.e. account opening form of Baij Nath Mittal. This account opening was approved by Sh. V R Setu Raman under his signatures at point A. It also bears stamp of bank with authorised signatory at point B. The same is Ex PW C C No.57/99 105/192 106 46/A. Specimen Signature Card having the stamp alongwith initial of authorised signatory at point B is also enclosed with it. The same is Ex PW 46/B. Alongwith Ex.PW 46/A photo copy of passport of B N Mittal as annexure III(D86) I Card annexure IV (D86) of B N Mittal having bank seal alongwith initial of authorised signatory at point B on each page are the part and parcel of Ex.PW 46/A. Annexure V also bears bank official seal alongwith authorised signatory at point A is Ex.PW 46/B. Account Closure Form, annexure VI having the bank official seal alongwith authorised signatory at point A is Ex.PW 46/C, annexure VII having the bank official seal alongwith authorised signatory at point A is Ex.PW 46/D, computer generated statement of account No. 500150 relating to B N Mittal having bank official seal alongwith initial of authorised signatory at point A & B is Ex.PW 46/E. Deposit slip dt. 25.1.93 through which Rs.

one lac was deposited in account no. 500150 having bank official seal alongwith initial of authorised signatory at point A is Ex.PW 46/F and Ex.PW 46/F1. Cheque dt. 3.2.93 through Rs. 69,301/­ was issued by account holder to DLF Universal Ltd. C C No.57/99 106/192 107 It also bears bank official seal alongwith initial of authorised signatory at point A. The same is Ex.PW 46/G." 157 Accused B N Mittal had issued a cheque No. 58016in the sum of Rs.1,50,000/­ in favour of Rajesh Chopra towards the payment of ground floor of property No.41, Gautam Nagar, New Delhi­49 which he had purchased in the name of his wife Dr. Krishna Mittal. Entry of this cheque is reflected in Ex PW 46/H which is statement of account of account No.500150 in the name of accused B N Mittal of ABN Amro Bank.

158 Prosecution has produced Rajesh Chopra as PW 31 who has deposed that he had sold ground floor of 41 Gautam Nagar New Delhi to Smt Krishna Mittal wife of B N Mittal in consideration of Rs.1,50,000/­ and received the amount vide cheque No.058016 thus it is proved that accused B N Mittal had purchased ground floor of 41 Gautam Nagar in the name of his wife Krishna Mittal and paid the consideration amount of Rs. C C No.57/99 107/192 108 1,50,000/­ from the above referred money. The deposition of PW 31 of Sh Rajesh Chopra is as under:

"During the year 1992­93 and since then till date I was and I am engaged in construction of buildings. I am also running Swadesh Leasing & Finance Pvt. Ltd situated at 47 Gautam Nagar New Delhi. During the year 1993 I made collaboration with some of the plot owner like Amrit Singh S/o Late Kabul Singh and Smt. Sukhwinder Kaur W/o Late Balwant Singh on plot No. 41 at Gautam Nagar. I constructed basement, ground floor and first to fourth floor.

In terms of collaboration agreement I got the ownership of basement, ground and third floor. I had invested around five lacs on the construction. During the construction of building one property dealer Sh. O.P. Dawar approached me for the purchase of ground floor of said building. He also told one of his party is interesting in purchasing ground floor and for this he paid Rs. 1,80,000/­. Furnishing of said house was done by him.

I have seen D­11, i.e. photocopy of GPA in favour C C No.57/99 108/192 109 of Krishna Mittal W/o Sh. B.N. Mittal. It was executed by me and I have signed on each page of GPA as executant. I cannot identify the signatures on GPA mark A, however, I can tell the name after reading the same. Now I do not remember who h ad signed this document along with me when it was executed as it is 15 years old matter. The signatures at point X appears like that of mine. I have seen photocopy of D­118, i.e. receipt marked B vide I had received an amount of Rs.1,50,000/­ from Dr. Mrs. Krishna Mittal W/o B. N. Mittal as full and final consideration of my entire ground floor with using rights terrace of property.

XXXXX on behalf of accused B.N. Mittal.

I was paid the amount by cheque but I do not remember who had paid that cheque. Now I do not remember the amount of cheque but the total payment of mine was Rs. 1,80,000/­ XXXXX on behalf of other accused.

Nil Opp given".

C C No.57/99 109/192 110

159 From the above deposition of PW 31 Rajesh Chopra it is proved beyond reasonable doubt that ground floor 41, Gautam Nagar was purchased in the name of Krishna Mittal W/o B. N. Mittal through Sh. O.P. Dawar and consideration amount of which was paid by B.N. Mittal through the above referred cheque of Rs. 1,50,000/­ . 160 Prosecution has also proved that accused B N Mittal had issued cheque No.000512 dt. 3.2.93 Ex PW 46/G (D­88) in the name of DLF Universal Ltd. for an amount of Rs.69,301/­ under his own signatures towards the part payment of price of apartment purchased by him from DLF Universal Ltd. Entry of this cheque is reflected in Ex PW 46/E (D­86) which is statement of account of account No.500150 in the name of accused B N Mittal of ABN Amro Bank.

161 Prosecution vide Ex. PW­50/4 (D­17) DD No. 149725 dated 12.02.94 in sum of Rs.1,07,477/­ in the name of Dr. B.N. Mittal issued from the Vaisya Bank Ltd. payable at Delhi has proved that accused B.N. Mittal on the back of this draft had made C C No.57/99 110/192 111 endorsement directing the State Bank of Massore, CP Branch, New Delhi to make payment of this DD to Gandharva Associate. His endorsement is as under: " Please pay to Gandharva Associates SIB/11/1786".

162 Gandharva Associates had also accepted the payment vide endorsement made on the said DD which is as under: "

Payees Endorsement Confirmed". Accordingly amount of this draft was credited in the current account No. 1786 in the name of Gandharva Associates on 21.02.94 which is clear from statement of account of A/c No. 1786 Ex. PW­32/E .

ACCOUNT NO. 5583 OPENED BY ACCUSED B N MITTAL IN HIS OWN NAME IN STATE BANKOF MYSORE, C P BRANCH NEW DELHI

163 Prosecution has also proved that accused B.N. Mittal had deposited two drafts of Rs. 1,07,477 each dated 12.02.94 Ex. PW­50/2 and 50/3 (D15 & 16) in his own name in State Bank of Mysore, CP Branch, New Delhi in his A/c No. 5583. Amount of both these drafts was credited in the A/c No. 5583 in the name of C C No.57/99 111/192 112 B.N Mittal on 23.02.94 which is reflected in statement of account Ex. PW32/A. AMOUNT TRANSFERRED BY B N MITTAL IN ACCOUN NO. 71021 IN SBI, TENYAMPET BRANCH, MADRAS IN THE NAME OF J O SIMON.

164 Prosecution has proved that DD No. 663801 dt. 23.12.92 Ex PW 12/A­2 in sum of Rs.18,70,000/­ in the name of J O Siman got issued by accused B N Mittal from account No. 01CEP 1046800 in the name of Dy. Director General (Leprosy), A N Z Grindlays Bank,CP Branch payable at Madras. As per statement of account Ex PW 7/A­11 of account No.01CEP 1046800 in the name of Dy. Director General (Leprosy) accused B N Mittal got issued DD No. 663801 dt. 23.12.92. 165 Prosecution vide statement of account Ex PW 42/E has proved that J O Siman was having saving bank account No. 71021 in SBI, Tenyampet Branch, Madras. J O Siman had deposited above referred draft in this account on 30.12.92, vide credit voucher Ex PW 42/A (D­18) under his own signatures C C No.57/99 112/192 113 which is clear from the statement of account. 166 Sh. J O Siman had withdrawn in cash himself Rs. 40,000/­ vide self cheque Ex PW 41/L dt. 30.12.92 and received the payment under his signatures on the back of this cheque. 167 Prosecution has proved that J O Siman had issued a cheque of Rs.6,03,000/­ Ex PW41/M (D­20) dt. 4.1.93 in the name of "Yourself" for the purpose of issuing two Demand Drafts in the name of Udai Ram Dhyani in sum of Rs.3 lac each. Prosecution has also proved two D D Applications Ex PW41/N and Ex PW41/N­1 (D­21 and D­22) submitted by J O Siman for obtaining above referred two DDS of Rs.3 lac each. 168 In this regard PW 71 J O Simon has deposed as follows:

" I have seen D­19 i e cheque dt 13.12.92 favouring self and through this cheque an amount of Rs.40,000/­ was withdrawn by me, it bears my signatures at point A as cheque issuing person and also at point B on its reverse side for receiving the amount. After receiving 40,000/­ through this cheque Ex C C No.57/99 113/192 114 PW41/L, I handed over the amount received by me to Sh B N Mittal I have seen D­20 i e cheque dt 4.1.93 favouring yourself through this cheque an amount of Rs.6,03000/­ was transfer in the bank for the preparation of draft. It bears my signatures at point A as cheque issuing person. The same is Ex PW41/M. After the preparation of Draft either I handed over the draft to Dr B N Mittal or sent on his given address.

I have seen D­21 i e duly printed Draft application form dated 4.1,93 through which a draft of Rs.3,00000/­ excluding 1500/­ as exchange money was submitted by me under my signatures at point A, D D of Rs.3,00,000/­ was to be prepared in favour of Mr Uday Ram Dhyani. I have also signed it at about B as a recipient of draft, the same is Ex PW41/N. I have seen D­22 i e duly printed Draft application form dated 4.1.93­ through which a draft of Rs.3,00000/­ excluding 1500/­ as exchange money was submitted by me under my signatures at point A, D D of Rs.3,00,000/­ was to be prepared C C No.57/99 114/192 115 in favour of Mr Uday Ram Dhyani. I have also signed it at about B as a recipient of draft, the same is Ex PW41/N­1"

169 Prosecution has proved that J O Siman had issued a cheque of Rs.12,03,000/­ Ex PW42/B (D­23) dt. 21.1.93 in the name of "Yourself" for the purpose of issuing two Demand Drafts in the name of O P Dabar and Avinash Kumar in sum of Rs.6 lac each. Prosecution has also proved two D D Applications Ex PW42/C and Ex PW41/D (D­24 and D­25) submitted by J O Siman for obtaining above referred two DDS of Rs.6 lac each. 170 In this regard PW 25 O P Dawar in his examination in chief has deposed as follows:

"I had received another draft of Rs.6 lacs in favour of Avinash Kumar, from Dr. B.N.Mittal. I had paid cash of Rs.6 lacs to Dr.B.N.Mittal for the draft in the name of Avinash Kumar. Avinash Kumar was my nephew and working with me. Avinash Kumar deposit this draft in his account. He withdrew this amount and spent on my instruction. It is correct that this amount was paid by me to Mr. Ashok Pruthi C C No.57/99 115/192 116 towards a loan taken from him pledging three plots at Dwarka. Thus I had received drafts of Rs.18 lacs in total."

171 Both these entries of Rs.6,03,000/­ and Rs.12,03,000/­ are reflected in the statement of account Ex PW42/E of account no. 71021 in the name of J O Siman, State Bank of India, Tenyampet Branch, Madras . In this regard PW 41 J O Simon has stated as follows:

" Ex PW42/B, D­23 , a cheque dated 21.1.93 was issued to Bank favouring yourself for preparing a Demand Draft of Rs.12,03000/­ . This cheque Ex PW42/B bears my signatures at point A. Ex PW42/C, D­24 , a DD application form dated 21.1.93 for issuing a Demand Draft of Rs.6,00,000/­ favouring Mr O P Dabar . This Ex PW42/C bears my signatures at point C and D. Ex PW42/D, D­25 , a DD application form dated 21.1.93 for issuing a Demand Draft of Rs.6,00,000/­ favouring Avinash Kumar . This Ex PW42/D bears my signatures at point C and D. All the aforesaid amounts either received through cheques or the C C No.57/99 116/192 117 DD prepared and received by me were handed over to Dr Mittal or sent on his address given by him."

172 Prosecution has proved that DD No. 664190 dt. 13.1.93 Ex PW 12/A­3 (D­58) in sum of Rs.3,00,000/­ in the name of J O Siman got issued by accused B N Mittal from account No. 01CEP 1046800 in the name of Dy. Director General (Leprosy), A N Z Grindlays Bank,CP Branch payable at Madras. As per statement of account Ex PW 7/A­12 of account No.01CEP 1046800 in the name of Dy. Director General (Leprosy) accused B N Mittal got issued DD No. 664190 dt. 13.1.93. 173 Prosecution has proved that DD No. 664264 dt. 29.1.93 Ex PW 12/A­4 (D­59) in sum of Rs18,50,000/­ in the name of J O Siman got issued by accused B N Mittal from account No.01CEP 1046800 in the name of Dy. Director General (Leprosy), A N Z Grindlays Bank,CP Branch payable at Madras. As per statement of account Ex PW 7/A­12 of account No.01CEP 1046800 in the name of Dy. Director General (Leprosy) accused B N Mittal got issued DD No. 664264 dt. 29.1.93. C C No.57/99 117/192 118 174 Prosecution vide statement of account Ex PW 41/B has proved that J O Siman was having saving bank account No. 620 in Indian Overseas Bank, Tenyampet Branch, Madras. J O Siman had deposited above referred drafts in this account. Draft of Rs.18,50,000/­was deposited on 08.02.93 vide credit voucher Ex PW 41/C (D­9) and draft of Rs.3,00,000/­ was deposited on 21.1.93 vide credit voucher Ex.PW41/D (D­8) under his signatures on both the credit vouchers. Amount of both these drafts was credited in the above said account of J.O.Simon on 23.1.93 and 10.02.93 as reflected in the statement of account Ex.PW41/B. 175 Prosecution has proved that J O Siman had issued two cheques in sum of Rs.6,26,500/­ each bearing no.842801 and 923440 Ex PW41/J and PW41/K dt.12.2.93 and 13.2.93 (D­12 and 13) in the name of "Yourself" for the purpose of issuing two Demand Drafts in the name of Gautam Prakash Sahni and Hardeep Sahni in sum of Rs.6,25,000/­ lac each. Prosecution has also produced two D D Applications Ex PW41/E (D­10 and D­11) submitted by J O Siman for obtaining above referred two C C No.57/99 118/192 119 DDS of Rs.6,25,000/­ each in favour of Gautam Prakash Sahni and Hardeep Sahni. J.O.Simon had also received both these DDs after signing on the back of both the applications submitted by him for receiving DDs. In this regard PW 41 J O Simon has stated as follows:

"I have seen D­11 i e draft application from through which I got prepared the draft of Rs.6,26,500/­ from my account No.620 on the instruction of Dr Mittal in favour of Gautam Parkash Shani it bears my signatures at point A and it back page I have also signed at point B in token of having received the same draft. Thereafter I handed over the draft to Dr Mittal, the same is Ex PW41/E. I have seen D­11 i e draft application from through which I got prepared the draft of Rs.6,26,500/­ from my account No.620 on the instruction of Dr Mittal in favour of Hardeep Shani it bears my signatures at point A and it back page I have also signed at point B in token of having received the same draft. Thereafter I handed over the draft to Dr Mittal, the same is Ex PW41/F. I have seen D ­59/1 and 59/2 these are the above said C C No.57/99 119/192 120 two drafts that I had received after getting prepared the same and handed over to Dr Mittal, both are Ex PW41/G and PW41/H. I have seen D­12 i e a cheque dt 13.2.93 for Rs. 6,26,500/­ in favour of yourself for preparing the draft under the instruction of Dr Mittal . It bears my signatures at point A the same is Ex PW41/J. I have seen D­13 i e a cheque dt 13.2.93 for Rs. 6,26,500/­ in favour of yourself for preparing the draft under the instructions of Dr Mittal . It bears my signatures at point A the same is Ex PW41/K."

176 Prosecution has also produced Hardeep Shani as PW 39 , who has stated that he had received DD of Rs. 6,50,000/­ from Amit Mittal and Deepak Mittal as sale consideration of the plot . Relevant portion of this statement is as under:

"I have seen D­111 i.e. General Power of Attorney Ex.PW 37/A, through which my wife Mrs. Poonam C C No.57/99 120/192 121 Sahni had given Power of attorney to Sh. Deepak Mittal s/o Sh. B N Mittal. This General Power of Attorney is in four sheets, duly signed by my wife at points C on each four sheets which was registered. passport size photograph of my wife is also tagged with pin at point D on the face of Ex PW37/A. I have seen D­112 i.e. Agreement to sale and purchase dt. 16.2.1993 between myself and Sh. Deepak Mittal s/o Sh. B N Mittal, already Ex PW25/B in four sheets duly attested by Notary, Delhi on 23.2.93, bears my signature at point A on all the four sheets and signature of my wife is at point B on all the four sheets. , which I identify as I have seen her signing.

I have seen D­115 i,.e. Receipt of Rs.6,50,000/­ from Sh.Amit Mittal. It is a photo copy of receipt but it bears my signature at point A in original. Same is Ex PW38/B (objected to)"

177 Prosecution has also produced Poonam Sahni wife of Hardeep Sahni as PW 38 she has proved agreement to sale C C No.57/99 121/192 122 dt 16.2.93 between Gautam Parkash Sahni and Amit Sahni . She has also produced agreement to sale and other documents witth regards to sale of plot between Hardeep Sahni and Deepak Mittal . She has proved the receipt of 6,50,000/­ each received from Amit Mittal and Deepak Mittal. Her deposition in this regard is as under:

"Since last 10­12 years I am running a Beauty Parlour at A2/115 Ground Floor Rajouri Garden, New Delhi. I have seen D109 i.e. agreement to sale and purchase dt. 16.2.1993 between sh. Gautam Prakash Sahni s/o Late Kishori Lal Sahni. and Mrs. Sheela Kumari Sahni w/o Sh. Gautam Prakash Sahni, acting for and on behalf of Sh. R. K.Puri s/o Late N R Puri as attorney, already Ex PW25/A,in four sheets duly attested by Notary, Delhi on 23.2.93, bears the signature of my father in law Gautam Prakash Sahni at point A on all the three sheets which I identify as I had seen him signing. Signature of my mother in law is at point B on all the four sheets which too I identify as I have seen her signing. Photograph of my father in law Gautam Prakash Sahni is tagged with pin on this agreement to sale and purchase i.e. Ex C C No.57/99 122/192 123 PW25/A at point C. I have seen D110 i.e. General Power of Attorney given by my mother in law, Mrs. Sheela Kumari Sahni, to Sh. Amit Mittal s/o Sh. B N Mittal. This General Power of Attorney is in four sheets, duly signed by Sheela Kumari Sahni at point A on each four sheets which I identify, which was notarised on 23.2.93. Same is Ex PW38/A. I have seen D­111 i.e. General Power of Attorney Ex.PW 37/A, through which I had given Power of attorney to Sh. Deepak Mittal s/o Sh. B N Mittal. This General Power of Attorney is in four sheets, duly signed by me at points C on each four sheets which was registered. My passport size photograph is also tagged with pin at point D on the face of Ex PW37/A. I have seen D­112 i.e. Agreement to sale and purchase dt. 16.2.1993 between sh. Hardeep Sahni s/o Gautam Prakash Sahni and Sh. Deepak Mittal s/o Sh. B N Mittal, already Ex PW25/B in four sheets duly attested by Notary, Delhi on 23.2.93, bears the signature of my husband at point A on all the four sheets which I identify as I have seen him signing and my signature is at point B C C No.57/99 123/192 124 on all the four sheets.

I have seen D­115 i,.e. Receipt of Rs.6,50,000/­ from Sh.Amit Mittal. It is a photo copy of receipt but it bears the signature of my husband at point A in original. Same is Ex PW38/B (objected to).

I have seen D­116 i,.e. photo cop[y of Receipt of Rs. 6,50,000/­ from Sh. Deepak Mittal it bears the signature of my husband at point A in original. Same is Ex PW38/C (objected to).

178 Prosecution has proved that Sh. J O Siman had withdrawn in cash himself Rs.5,50,000/­ vide self cheque Ex PW 41/N2 dt. 15.2.93 (D­36) and received the payment under his signatures on the back of this cheque.

179 Prosecution has proved that Sh. J O Siman had issued a cheque Ex.PW41/N3 dt. 16.2.93 (D­37) in sum of Rs.2,00,000/­ in favour of one Vijay Kumar from this account. Payment of which was received by Vijay Kumar under his signature on the back of this cheque.

180 From the above discussion, it is clear that prosecution has established that J.O.Simon out of the total C C No.57/99 124/192 125 amount of Rs.21,50,000/­ of above two referred drafts had used an amount of Rs.20,03,000/­.

181 Dr.J.O.Simon has appeared in the witness box as PW44. He has specifically deposed that he got prepared demand drafts in favour of Udey Ram Dhani, O.P.Dawar, Avinash Kumar, Gautam Prakash Sahni and Hardeep Sahni on the instructions of accused B.N.Mittal and handed over the same to him. Relevant portion of his statement in this regard is as under:

" I have never met the individual or heard in whose name I got prepared the D.Ds. I had entered the name and transaction in the statement of account which I used to prepared under the instruction of Dr Mittal. Again said I had not maintained any such statement of account with regard to DDs. CBI had recorded my statement during investigation."

182 In his cross examination he has denied the suggestion that he had not handed over the money to accused B N Mittal or had not got prepared DDs on the instructions of accused B N Mittal. Relevant portion of his cross examination in this regard is as under:

C C No.57/99 125/192 126

" It is incorrect to suggest that I am deposing falsely against the accused under pressure of CBI. It is further incorrect to suggest that I after withdrawing the cash amount never handed over the money to turn to the accused. It is incorrect to suggest that no instructions were ever issued to me from the accused for getting the D.Ds prepared in the name of individuals. It is incorrect to suggest that D.D made in the name of individual were pursuant to my instructions."

183 In his cross examination PW J O Simon has further deposed as follows:

" I had never received any acknowledgment from Mr B N Mittal with regard to payment made to him in cash by me after withdrawing the amount through various self cheques etc as I had withdrawn the amount under my signatures. I had never given in writing the amount in cash and to pay the same to him. Now I do not remember whether anybody was present when I had handed over the above referred cash amount to Dr Mittal or not. It is incorrect to suggest that each of the instance the cash amount as referred above was withdrawn by me was utilized by me only I C C No.57/99 126/192 127 had not made any statement of account of cash amount paid by me to Dr Mittal after withdrawing the same from the bank, referred above. The cash amount was handed over to Mr Mittal always in Madras. I cannot tell the dates of the payment of such amount to Mr Mittal."

ACCOUNT NO.SIB/11/1786 OPENED IN THE NAME OF GANDHARVA ASSOCIATES OPENED IN THE ASSUME NAME SAVITA GUPTA.

184 Current A/c No. SIB/11/1786 was opened in the name of Gandharva Associates by one Savita Gupta, 156, Ring Road, Sarojini Nagar on 15.07.96 vide A/c opening form Ex. PW­16/B ( D93) in State Bank of Mysoore, CP Branch. This account was introduced by accused Kishan Chand vide his signatures at point Q­130. Alleged Savita Gupta had signed this account opening form Ex. PW­16/B at point Q­131 and filled this account opening form at point Q­129. Alleged Savita Gupta had also given her specimen signatures at point Q­132 on Ex. PW­32/G­6 ( D­93) 185 According to the report of GEQD, Ex. PW­43/J writing at point Q­129, Q­131on Ex. PW­16/B and at point Q­132 C C No.57/99 127/192 128 on Ex. PW­32/G­6 is in the handwriting of accused Mukesh Gupta. Meaning thereby this account was actually opened by accused Mukesh Gupta impersonating as Savita Gupta. 186 According to the report of GEQD, Ex. PW­43/J writing at point Q­129 on A/c Opening Form Ex.PW­16/B is in the handwriting of accused Kishan Chand, thus, accused Kishan Chand who was working as Head Cashier at State Bank of Myssore, CP Branch had introduced Mukesh Gupta as Savita Gupta while opening the above referred account in the name of Gandharva Associates.

187 From the statement of PW­2 Jitender Kumar Arora and PW­8 Pawan Kumar, it is proved that shop No. 156, Ring Road Market, Sarojini Nagar, Delhi belongs to them and they had not allowed any other firm like Gandharva Associates or Apex Enterprises to run from that premises, thus, it is also proved that address 156,Ring Road Market, Sarojini Nagar, New Delhi given in the bank while opening the above referred account has also wrongly mentioned.

188 Prosecution vide Ex. PW­50/4 (D­17) DD No. C C No.57/99 128/192 129 149725 dated 12.02.94 in sum of Rs.1,07,477/­ in the name of Dr. B.N. Mittal issued from the Vaisya Bank Ltd. payable at Delhi has proved that accused B.N. Mittal on the back of this draft had made endorsement directing the State Bank of Mysore, CP Branch, New Delhi to make payment of this DD to Gandharva Associate. His endorsement is as under: " Please pay to Gandharva Associates SIB/11/1786".

189 Gandharva Associates had also accepted the payment vide endorsement made on the said DD which is as under: "

Payees Endorsement Confirmed". Accordingly amount of this draft was credited in the current account No. 1786 in the name of Gandharva Associates on 21.02.94 which is clear from statement of account of A/c No. 1786 Ex. PW­32/E.

190 Prosecution has also proved the statement of account of M/s Gandharva Associates Ex. PW­32/E( D­81) in which an amount of Rs.3,20,000/­ was deposited on 04.08.93 vide credit voucher Ex. PW­32/F, an amount of Rs. 1,69,230/­ was deposited on 22.11.93 vide credit voucher Ex. PW­32/G, an amount of Rs. 2,00,000/­ was deposited on 23.12.93 vide credit voucher Ex. C C No.57/99 129/192 130 PW­32/G­3, an amount of Rs. 10,000/­ was deposited on 27.04.94, an amount of Rs. 4,82,000/­ on 04.08.1991.

191 Prosecution has proved that alleged Savita Gupta on behalf of Gandharva Associates as its proprietor had issued two cheques in sum of Rs. 1000025/­ each No. 156528 and 156529 Ex PW16/K1 & K232/H17 (D­99) in the name of yourself for the purpose of issuing demand draft in the name of M.D. Estates for an amount of Rs.1 lac each dated 23.12.93 from the account No. 1786 of Gandharva Associates and signed at point Q­78, Q­78A, Q­79 & Q­79A. Alleged Savita Gupta had also submitted two applications for issuing two DDs in the name of M.D. Estates which are Ex.PW32/G­4 & G­5( D100) under her signatures at point Q­80 & Q­81. She had also filled both these DD applications at point Q­80 & Q­81. According to GEQD report Ex.43/J signatures and writings at point Q­78, Q­78A, Q­79, Q­79A on both the above referred cheques and at point Q­80 and Q­81 on both the DD applications are in the handwriting of accused Mukesh Gupta, thus, it is proved that actually accused Mukesh Gupta had issued both these cheques for obtaining two DDs and C C No.57/99 130/192 131 also moved both these applications for obtaining two DDs and signed as Savita Gupta.

192 PW28­A Manjit Singh Kohli has deposed that he was doing work of construction under the name and style M/S M D Estate Pvt Ltd. It has purchased Plot No.40/47 EPDP Colony Chitranjan Park and constructed three storied building. First floor was sold to Dr B N Mittal vide agreement to sale Ex PW28/A. In this regard he has deposed as follows:

" In the year 1990 I was doing the work of construction work in the name of M/S M D Estate Pvt Ltd. M/S M D Estate purchased plot No.40/47 EDPD Colony, Chitranjan Park, N Delhi and the three storey building was constructed on the said plot. On the first floor constructed on the said plot was sold to Dr B N Mittal . I have seen D114 which is agreement to sale whereby first floor was sold to Dr B N Mittal. I identify the signatures of Sh Daljeet Singh at point A on page 10 and my signatures at point B and the signatures of Sh Kanwal Pal Kochhar at point C. I also identify the signatures of Sh B N Mittal, who signed in my presence , at point B. Same is Ex PW28/A."

C C No.57/99 131/192 132

193 In this regard PW 29 Kanwar Pal Singh has deposed as follows:

" In the year 1992 M D Estates purchase a plot No. 40/47 EDPD Colony Chitranjan Park New Delhi from Mr Gurcharan Singh who was proprietor of M/S Richa Construction in consideration of Rupees about 4,50,000/­ Mrs Meeta Singh wife of Sh Gurcharan Singh executed a GPA in my favour. Sh Maljit Singh Kohli constructed three floor and a basement on the said plot in the year 1992­93 . It was got constructed through contractor whose name I do not remember . First floor of 40/47 EPDP Colony was sold to Mr B N Mittal for Rs.4,50,000/­ out of which 50,000/­ paid in advance and four pay orders of Rs.one lac each which was paid to M D Estates."

194 In this regard a specific question No.24 was put to accused B N Mittal that first floor of 40/47 EPDP Colony was sold to him to which he has replied that it is a matter of record. This amount does not relate to the funds of leprosy elimination project C C No.57/99 132/192 133 but from the above discussion it is proved thats both the above referred were purchased from the amount transferred to Gandharava Associate by B N Mittal out of the amount granted for leprosy eradication programme.

195 In agreement to sale Ex PW28/A it is specifically mentioned that payment was made vide two drafts No. 389390 and 389391 of Rs. One lac each dated 23.12.93. Thus it is proved beyond reasonable doubt that above referred two DDs of Rs.One lac each were used by accused B N Mittal for making the payment of first floor of EPDP Colony, C R Park, N Delhi. 196 Prosecution has proved that alleged Savita Gupta as proprietor of Gandharav Associate had issued cheque in sum of Rs. 3,20,025/­No. 156526 Ex PW16/K­3 (D­99) in the name of yourself for the purpose of issuing demand draft in the name of Jindal Photo Films Ltd for an amount of Rs.3,30,000/­ dated 4.8.93 from the account No. 1786 of Gandharva Associates and signed at point Q­39. One cheques of Rs.1,69,227/­ ( including total commission amount of Rs.50/­ for two DDs i e Rs.25/­ for each DD ) the bank No. 156527 Ex PW16/K­4 (D­99) in the name C C No.57/99 133/192 134 of yourself for the purpose of issuing two demand drafts in sum of Rs.1,14,177/­ and Rs.55,000/­ in the name of Jindal Photo Films Ltd dated 22.11.93 from the account No. 1786 of Gandharva Associates and signed at point Q­68 and Q­68A. Alleged Savita Gupta had also submitted three applications for issuing three DDs in the name of Jindal Photo Films Ltd which are Ex.PW27/A PW27/B and PW27/C ( D100) . According to GEQD report Ex.43/J signatures and writings at point Q­68 and Q­39 on both the above referred cheques are in the handwriting of accused Mukesh Gupta, thus, it is proved that actually accused Mukesh Gupta had issued both these cheques for obtaining three DDs and signed as Savita Gupta.

197 Prosecution has proved cheque Ex PW16/G (D­99) dated 6.4.94 issued in favour of K C Gupta by alleged Savita Gupta as proprietor of Gandharav Associate in sum of Rs. 10,000/­ from the account No. 1786 of Gandharva Associates and signed at point Q­71A . According to GEQD report Ex PW43/J signatures at pointd Q­71A is in the hand writing of accused Mukesh Gupta. Body writing of this cheque at point Q­71 C C No.57/99 134/192 135 according to the report of GEQD Ex PW43/J is in the hand writing of Kishan Chand Gupta . Accused Kishan Chand Gupta had received the amount of this cheque in cash under his signatures at point Q­72 (which is also in the hand writing of accused Kishan Chand Gupta as per GEQD report Ex PW43/J) 198 Prosecution has proved cheque Ex PW16/F (D­99) dated 21.2.94 issued in favour of K C Gupta by alleged Savita Gupta as proprietor of Gandharav Associate in sum of Rs. 87,000/­ from the account No. 1786 of Gandharva Associates and signed at point Q­69A . According to GEQD report Ex PW43/J signatures at point Q­69A is in the hand writing of accused Mukesh Gupta. Body writing of this cheque at point Q­69 according to the report of GEQD Ex PW43/J is in the hand writing of Kishan Chand Gupta . Accused Kishan Chand Gupta had received the amount of this cheque in cash under his signatures at point Q­70(which is also in the hand writing of accused Kishan Chand Gupta as per GEQD report Ex C C No.57/99 135/192 136 PW43/J) 199 Prosecution has proved cheque Ex PW16/E (D­99) dated 18.2.94 issued in favour of self by alleged Savita Gupta as proprietor of Gandharav Associate in sum of Rs. 20,000/­ from the account No. 1786 of Gandharva Associates and signed at point Q­30 . According to GEQD report Ex PW43/J signatures at point Q­30 is in the hand writing of accused Mukesh Gupta. Body writing of this cheque at point Q­29 according to the report of GEQD Ex PW43/J is in the hand writing of Kishan Chand Gupta . Accused Kishan Chand Gupta had received the amount of this cheque in cash under his signatures at point Q­31(which is also in the hand writing of accused Kishan Chand Gupta as per GEQD report Ex PW43/J).

WHETHER THERE EXISTS CRIMINAL CONSPIRACY AMONG THE ACCUSED.

200 Conspiracy consists in a combination or agreement between two or more person to do an unlawful act or to do a lawful act by unlawful means. Conspiracy is an inference drawn from the circumstances. There cannot always be much direct C C No.57/99 136/192 137 evidence about it. Conspiracy can be inferred even from the circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. Since Conspiracy is often hatched in utmost secrecy, it is impossible to prove conspiracy by direct evidence. It has to be inferred from the acts, statements and conduct of parties to the conspiracy. Thus, if it is proved that the accused pursued, by their acts, the same object often by the same means, one performing one part of the act and the other another part of the same act so as to complete it with a view to attainment of the object which they were pursuing, the court is at liberty to draw the inference that they conspired together to effect that object. Conspiracy has to be treated as a continuing offence and whosoever is a party to the conspiracy, during the period for which he is charged, is liable under this section. 201 It is not an ingredient of the offence under this section that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. The C C No.57/99 137/192 138 entire agreement must be viewed as a whole and it has to be ascertain as to what in fact the conspirators intended to do or the object they want to achieve. It is not necessary that each member of conspiracy must know each other or all the details of the conspiracy. It is also not necessary that every conspirator must have taken place in each and every act done in pursuance of a conspiracy.

202 Though to establish the charge of conspiracy there must be agreement, there need not be proof of direct meeting or combination , nor need the parties be brought into each other's presence; the agreement may be inferred from the circumstances raising presumption of a common concerted plan to carry out the unlawful design. Conspiracy need not be established by proof which actually brings the party together; but may be shown like any other fact, by circumstantial evidence. So again it is not necessary that all should have joined in the scheme from the first point; those who come in at a later stage are equally guilty.

C C No.57/99 138/192 139 203 Conspiracy hatched in secrecy and executed in darkness. In a case of conspiracy, it is not expected from the prosecution that it will produce evidence to show that conspirators executed agreement to commit crime before the witnesses to prove the existence of conspiracy. Conspirators take all precautions to keep their plan secret hence prosecution cannot produce direct evidence to prove agreement to commit conspiracy. 204 In Kher Singh Vs State AIR 1988 SC 1883 it is observed as follows:

" Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on th evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon the circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must require whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the later does. It is however, essential that the offence of conspiracy required some kind of physical manifestation or agreement the C C No.57/99 139/192 140 express agreement however need not be proved. Nor mutual meetings of the two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Conspiracy can be proved by circumstances and other material."

205 In a case of criminal conspiracy any evidence available against any of the accused is admissible against all the accused. Once a conspiracy is proved among the accused, act of one conspirator become act of all other conspirators also. In this regard Ld. SPP placed reliance on Shiv Narain Laxmi Narain Joshi Vs State of Maharashtra, (1980 ) 2 Supreme Court Cases 465 has held as follows:

" Penal Code, 1860­ Section 120­B - Since it is impossible to adduce direct evidence of conspiracy, the offence can only be proved largely from the inference drawn from acts or illegal omissions committed by the conspirators in pursuance of a common design­ Once such a conspiracy is proved, act of one conspirator becomes act of the other­ A co­conspirator, who joins subsequently and commits overt acts in furtherance of the conspiracy, held is also liable­ Evidence Act, 1987­ Section 10."

C C No.57/99 140/192 141

206 Hon'ble Supreme Court in Firozuddin Basheeruddin & Ors. Vs. State of Kerala, (2001) 7 Supreme Court Cases 596 has held as follows:

"Conspiracy is not only a substantive crime but on the basis of it a conspirator can also be held liable for the crimes committed by conspirators in furtherance of the objectives of the conspiracy­ Conspiracy can be established on the basis circumstances evidence­ As regards admissibility of evidence strict standards are not necessary inasmuch as any declaration made by a conspirator in furtherance of and during pendency of a conspiracy though hearsay, is admissible against each co­conspirator­ On facts held, Supreme Court's interference with concurrent finding that criminal conspiracy proved and on the basis offence of murder also made out not called for."

207 Hon'ble Supreme Court in Ram Naryan Popli Vs. CBI AIR 2003, SC 2748 has held as follows:

"The essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to C C No.57/99 141/192 142 be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120­B read with the proviso to sub Section (2) of Section 120­A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120­B and the proof of any overt act by the accused or by any one of them would not be necessary."

208 Hon'ble Supreme Court in P K Narayan Vs. State of Kerala, All India Criminal Law Reporter 1994 (3) 785, has held as follows:

"Penal Code, 1860, Section 120­B ­Evidence Act, 1872, Section ­3 - Criminal Conspiracy ­Essence of Criminal conspiracy - It is an agreement to do an illegal act - Agreement can be proved either by direct evidence or by circumstantial evidence or by both - Complicity of the accused - Circumstances proved before, during and after the occurrence required to be considered to decide about the complicity of the accused ­But if the circumstances are compatible with the innocence of the accused persons then it could not be held that the prosecution had successfully established its case."

209 Hon'ble Supreme Court in S. Swamirathnam, Appellant Vs. State of Madras, Respondent, (s) AIR 1957 S.C. 340 C C No.57/99 142/192 143 in this regard has held as follows:

"If a specific instance of cheating was proved beyond doubt against any of the accused that would furnish the best corroboration of the offence of conspiracy because conspiracy was the root and the specific instances were the fruit."

210 Prosecution has proved that accused K C Gupta had introduced five accounts namely account of Sh Baij Nath Mittal, Proprietor of M/S Kanak Ads, Ex PW5/A ( D­95), S.B. account of Sh Baij Nath Mittal Ex PW16/A ( D­92), account of Sh Mukesh Kumar Gupta , Proprietor of M/S Apex Enterprises , Ex PW16/D ( D­90, account of Smt Vineeta Mittal , Proprietor of M/S Vineeta Exports Ex PW16/C ( D­94) and account of Smt Savita Gupta , Proprietor of M/S Gandharv Associates Ex PW16/B ( D­93) opened by his co­accused B N Mittal and M K Gupta either in their own name or opened as Proprietor of the dummy firms flouted by them. Prosecution has also proved that accused K C Gupta had introduced account of M/S Novex Traders opened by accused Mukesh Gupta in the assume name as Sat Parkash giving C C No.57/99 143/192 144 false and fictitious address. It is also proved that Sat Parkash opened account of Gandharv Associate in the assumed name of Savita Gupta which was introduced by accused K C Gupta. 211 From the foregoing discussion in this judgment it is also proved that accused K C Gupta had attested the signatures of accused Mukesh Gupta , B N Mittal and had also received payments of some cheques in the name of both the accused. Prosecution has also proved that K C Gupta had attested the signatures of accused Mukesh Gupta as Sat Parkash at the time of receiving the amount of Cheque Ex PW14/D and PW14/D­2 ( D­105) . It is also proved that accused B N Mittal had issued cheque Ex PW5/B­6 (D­103) in the name of accused M K Gupta amount of which was received by accused K C Gupta . Prosecution has proved that accused K C Gupta had identified signatures of accused Mukesh Gupta on the back of cheque Ex PW5/B­5 of Rs.56,000/­ dated 14.9.91 issued in the name of Mukesh Kumar Gupta on behalf of Kanak Ads under the signatures of accused B N Mittal, even when signatures of M K Gupta does not appear anywhere on the reverse side of the cheque. C C No.57/99 144/192 145 Kishan Chand by writing "signatures of Mukesh Gupta identified" is apparent at the back portion of cheque however signatures of Mukesh Gupta is not there . It bears the signatures of B N Mittal only on the back side of cheque.

212 Prosecution has proved that accused K C Gupta has identified the signatures of O P Dawar on the back of cheque Ex PW14/C­1 ( D­103) issued by accused B N Mittal on behalf of Kanak Ads.

213 Prosecution has proved cheque Ex PW16/F (D­99) dated 21.2.94 issued in favour of K C Gupta by alleged Savita Gupta as proprietor of Gandharav Associate in sum of Rs. 87,000/­ from the account No. 1786 of Gandharva Associates and signed at point Q­69A . According to GEQD report Ex PW43/J signatures at point Q­69A is in the hand writing of accused Mukesh Gupta. Body writing of this cheque at point Q­69 according to the report of GEQD Ex PW43/J is in the hand writing of Kishan Chand Gupta . Accused Kishan Chand Gupta had received the amount of this cheque in cash C C No.57/99 145/192 146 under his signatures at point Q­70(which is also in the hand writing of accused Kishan Chand Gupta as per GEQD report Ex PW43/J).

214 Prosecution has proved on the judicial file that accused Mukesh Gupta in the assumed name as Sat Parkash Proprietor of M/S Novex Traders had withdrawn a total amount of Rs.21,91,411/­ in cash from account No.1639, State Bank of Mysore , CP Branch and had got issued one DD vide cheque Ex32/G­11 and DD application Ex PW32/G­12 in sum of Rs. 88,350/­ in favour of DLF Universal Ltd which was paid by accused B N Mittal to DLF Universal Ltd for purchasing Silver oak Apartment No.103/12, Phase­I DLF Gurgaon. It again proves that alleged Sat Parkash was none else but accused Mukesh Gupta that is why he has purchased the above mentioned DD in the name of DLF Universal Ltd which was utilized by accused B N Mittal to DLF Universal for purchasing Flat No.103/12 Silver oak Apartment, Phase­I DLF Gurgaon.

215 In this way accused Mukesh Kumar Gupta impersonating himself as Sat Parkash Proprietor of M/S Novex C C No.57/99 146/192 147 Traders utilized a total amount of Rs.22,75,850/­ for his personal use and that of accused B N Mittal out of the total amount of Rs. 22,79,311/­ transferred by accused B N Mittal in the account of M/S Novex Traders from account No. 01­CEP 1046800 in name of Dy Director General ( Leprosy) 216 Prosecution has proved on the judicial file that accused Mukesh Gupta as Proprietor of M/S Apex Enterprises had withdrawn a total amount of Rs.36,69,000/­ in cash from account No.1696, State Bank of Mysore , CP Branch by issuing self cheques of Rs.10,20,000/­ 7,00,000/­, 5,000/­, 10,55,000/­, 8,30,000/­ 25,000/­, 17,000/­, 6,000/­, 2,000/­, 2,000/­, and 7,000/­ and had got issued one DD vide cheque Ex PW32/H­17 and DD application Ex PW32/H­18 in sum of Rs.4,69,132/­ in favour of DLF Universal Ltd which was paid by accused B N Mittal to DLF Universal Ltd for purchasing Silver oak Apartment No.103/12, Phase­I DLF Gurgaon. He had got issued two DDs in the name of BN Mittal of Rs.1,00,000/­ each vide two cheques Ex PW32/H­26 and H­27 and DD applications Ex PW32/H­10 and H­11.

C C No.57/99 147/192 148 217 In this way accused Mukesh Kumar Gupta utilized an amount of Rs.43,63,157/­ for his personal use and that of accused B N Mittal out of the total amount of Rs.43,64,970/­ transferred by accused B N Mittal in the account of M/S Apex Enterprises from account No. 01­CEP 1046800 in name of Dy Director General ( Leprosy) . It proves active connivance of accused Mukesh Gupta with accused B N Mittal and their involvement of running conspiracy to siphon the amount illegally granted for the leprosy eradication programme by WHO/UNICEF. 218 Prosecution has also proved that accused B N Mittal as a Proprietor of M/S Kanak Ads had withdrawn a total amount of Rs.10,75,000­ in cash by issuing self cheque from account No. 1640 State Bank of Mysore , CP Branch. He had issued two cheques in the name of Mukesh Gupta for a total amount of Rs. 6,35,000/­ 75,000/­ and 5,60,000/­) which Mukesh Gupta had received in cash . He had also issued one cheque for amounts of Rs.3,50,000/­ in the name of OP Dawar which was also withdrawn in cash by Mr Dawar . He had issued a cheque of Rs.8,00,000/­ in C C No.57/99 148/192 149 the name of M/S Vanita Export which is a firm of his daughter in law, he had also issued two cheques of total amounting to Rs. 2,40,000/­ ( 2,00,000/­ and 40,000/­ ) in favour of his son Amit Mittal which were paid to Deepak Mittal through clearing. He had issued two cheques of total amounting to Rs.1,40,000/­ ( 1,00,000/­ and 40,000/­ ) in favour of his son Deepak Mittal which were paid to Deepak Mittal through clearing. In this way accused B N Mittal utilized an amount of Rs.32,40,000/­ for his personal use and for the use of his family members out of the total amount of Rs.32,43,760/­ transferred by him in the account of M/S Kanak Ad from account No. 01­CEP 1046800 in name of Dy Director General ( Leprosy).

219 Prosecution has also proved that accused B N Mittal had transferred a total amount of Rs. 42,25,000/­ by way of five DDs to Sh J O Simon and got issued DDs in the name of OP Dawar, Uday Ram Dhyani, Avinash Kumar, Gautam Parkash Sahni, Hardeep Sahni and Rajesh Chopra and utilized these drafts for purchasing immovable property in Delhi in his name, in the name of his wife and in the of his sons Amit Mittal and Deepak C C No.57/99 149/192 150 Mittal.

220 Prosecution has also proved that accused B N Mittal had transferred a total amount of Rs. 5,10,000/­ in Vyasa Bank, Sicunderabad and purchased Four Akshay Deposit Certificate one in a sum of Rs.2,00,000/­ and three in a sum of Rs.1,00,000/­ which were later on encased prematurely and one DD was deposited in the account of Gandharav Associates, another DD of Rs.2,14,955/­ was deposited in ABN Amro Bank in the account opened by accused B N Mittal in his own name out of which a DD of Rs.1,50,000/­ in favour of Rajesh Chopra was got issued utilized by B N Mittal for purchasing immovable in the name of his wife . Remaining two DDs of Rs.1,07,477/­ each were deposited in State Bank of Mysore, CP Branch Saving A/C No. 5583 in the name of B N Mittal opened by him furnishing the residential address of co­accused Mukesh Gupta. 221 From the above discussion conspiracy between accused B N Mittal, Mukesh Gupta and K C Gupta proved beyond reasonable doubts.

SANCTION & PUBLIC SERVANT C C No.57/99 150/192 151 222 Accused Dr B N Mittal was the then functioning as Deputy Director General ( Leprosy) (DDG) (L), Ministry of Health & Family Welfare, Govt of India, New Delhi at the time of commission of this offence . However according to the prosecution at the time of filing of this charge sheet on 25.11.99 before the Predecessor of this Court he had been retired therefore ceased to be a public servant hence, no sanction for his prosecution is required as per Section 19 of P C Act 1988 therefore no sanction for his prosecution was sought by the IO. 223 It has been held by the Hon'ble Supreme Court in various pronouncements that once a public servant accused of an offence under P C Act has ceased to hold public office, no sanction for his prosecution is required.

224 In the case of Kali Charan Vs. State of Orissa, (1998) 6 SCC 411, it was hold that a public servant who committed an offence mentioned in the P C Act while he was a public servant can be prosecuted with the sanction contemplated in section 19 of the P C Act, 1988 (corresponding to Section 6 of the P C Act 1947) if he continues to be a public servant when the court take C C No.57/99 151/192 152 cognizance of the offence. But, if he ceases to be a public servant by that time, the court can take cognizance of the offence without any sanction.

225 In the matter of State of Kerala vs. Padmanabhan 1999 (6) ad (SC) 363, it was held that an accused facing prosecution for offence under P C Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date on which the Court took cognizance of offence."

226 As Accused B N Mittal was retired from his post and not in service on the date of filing of this charge sheet before my Ld Predecessor on 25.11.99 and on 15.2.2000 when my Ld Predecessor had taken cognizance of offences against him therefore no sanction is required for his prosecution in this case. 227 Ld Defence counsel Ms Rebecca John for accused B N Mittal argued that though accused has been retired from the service but still sanction for his prosecution as required U/S 197 Cr P C is must as he was a public servant at the time of commission of alleged offence. Ld Defence counsel in support of C C No.57/99 152/192 153 her arguments place reliance on the following authorities:

Rakesh Kumar Mishra Vs The State of Bihar 2006(1) Crimes 88 ( SC) Rabindra Mahto & Anr Vs State of Jharkhand 2006(1) Crimes 97 ( SC) N Bhargavan Pillai (Dead) by Lrs & Ars. Vs State of Kerala 2004 (2) JCC 969.

Abdul Wahid Vs State of Rajasthan 2004(2) JCC 974. R Balakrishna Pillai Vs State of Kerala AIR 1996 SC­901.

Ashok Sahu Vs Gokul Saikia 1990 SCC ( Cri) 611. Anjani Kumar Vs State of Bihar & Ors 2008 (2)JCC ( 1337.

Paul Varghese Vs State of Kerala and Anr, 2007 Suppl. 1 AD ( SC) 343.

228 From the foregoing discussion in this judgment it is proved beyond reasonable doubt that accused B N Mittal in connivance and conspiracy with his co­accused in furtherance of criminal conspiracy hatched by them have misappropriated about C C No.57/99 153/192 154 1,46,00,000/­. It is well settled legal proposition to hatched criminal conspiracy and to mis­appropriate the public fund are not the part of the duty of public servant or in the scope and range of his official duty .

229 Hon'ble Supreme Court in State of Maharastra Vs Devahari Devasingh Pawar 2008 III AD (SC) 326 has held as follows:

" Facts are entirely different and we see no application of the decisioin in the case of Abdul Ansari­ We fail to see how tampering with the entries made in official register, tearing of pages form different official register and stowing them away in one's house can be related to the discharge of official duty - we do not have the slightest doubt that the allegations made against the accused related to acts that had no nexus or connection to the discharge of their official duties and, therefore, their prosecution on those allegation had no need of any sanction U/S 197 of the Code."

230 Hon'ble Supreme Court in Rakesh Kumar C C No.57/99 154/192 155 Mishra Vs State of Bihar (2006) 1 SCC 557 has held as follows:

" Criminal Procedure Code, 1973­ S. 197 ­Applicability - Expression " any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty­ Words "official duty " how to construed­ Held, " official duty" implies that the act or omission must have been done by the public servant in the course of his service and that it should fall within the scope and range of his official duty - Test is whether omission or neglect to do that act would have brought on the charge of dereliction of his official duty­ S. 197 to be construed strictly while determining its applicability to any act or omission in the course of service­ Hence protection does not extend to cirminal activities - But, where act or omission performed by a public servant had reasonable connection with discharge of his duty, it must be held to be official­ Words and phrases­ " C C No.57/99 155/192 156

Official duty"

231 Hon'ble Supreme Court in State of Himachal Pradesh Vs M P Gupta AIR 2004 SC­730 has held as follows:

" Criminal P C ( 2 of 1974) S. 197­ Penal Code ( 45 of 1860) Ss 467, 468,471, 420, 120B - Sanction to prosecute public servant­ For offence of forgery of valuable security, conspiracy and cheating­ No part of duty of public servant while discharging his official duties to commit forgery and indulge into consiracy­ Want to sanction is no bar to prosecute public servant for said offences."

232 In P K Pradhan Vs State of Sikkam represented by the CBI III (2001) CCR 95 ( SC) our Hon'ble Supreme Court has observed as follows:

" Sanction for prosecution: Criminal Conspiracy in Getting Works Awarded in Favour of Contractor at LowRates Causing Pecuniary Advantage C C No.57/99 156/192 157 and Corresponding Loss to State : Claim that act was done in Course of Performance of duty was Reasonable and not Pretendedor Fanciful, can be Examined during Course of Trial: Question of sanction to be decided in main Judgment delivered upon conclusion of Trial."

233 Hon'ble Supreme Court in Choudhary Parveen Sultana Vs State of West Bengal & Ors (2009) 2 SCC ( Crl) 122 has held as follows:

" A Criminal Procedure Code, 1973­ section 197­ applicability - Deeds and acts attributed to public servant not being part of his official duties - Disentitlement to protection of S. 197 - Held , for applying bar of section 197, each case has to be considered its own facts situation in order to arrive at a finding as to whether protection of Section 197 could be given to the public serant - Herein , offences C C No.57/99 157/192 158 complained of cannot be said to be part of duties of respondent investigating officer while investigating an offence allegedly committed - it was no part of his duties to threatened the appellant complainant or her husband to withdraw the complaint­ Fact situation in the complaint herein was not such to bring the case within ambit of Section 197."

234 Accused Mukesh Kr Gutpa was the then working as Statistical Assistant, DGHS, New Delhi. PW44 Sh Ashif Iqbal has deposed that on 14.10.99 he was working as Director, Administration and Vigilance, in the office of Directorate General of Health Services, as such he was authority competent to remove Mukesh Kumar Gupta from his post . He had received a request from CBI for according sanction for the prosecution of Mukesh Kumar Gupta alongwith the relevant material. After perusing and carefully examining the statement of witnesses and documents, he had accorded sanction Ex PW44/A for the prosecution of Mukesh Kumar Gupta in this case.

C C No.57/99 158/192 159 235 Ld Defence counsel Sh Vishal Gosain for accused Mukesh Gupta argued that previous sanction of appropriate authority/ Govt is necessary when a public servant not removable from his office save by or with the sanction of the Government is to prosuecuted for an offence alleged dto have been committed by him while acting or purporting to act in discharge of his official duties.

236 It is correct that accused in this case is a public servant however from the foregoing discussion in this judgment it is proved that he in connivance and conspiracy with his co­ accused in furtherance of criminal conspiracy hetched by them mis­appropriated huge sum of public money. 237 Hon'ble Supreme Court in K C Prasad Vs Smt Vanalatha Devi AIR 1987 Supreme Court 722 in para No.6 has held as follows:

" It is very clear from this provision that this section is attracted only in case where the public servant is such who is not removable from his office save by or with the sanction of the C C No.57/99 159/192 160 Government. It is not disputed that appellant is not holding a post where he could not be removed from service except by or with the sanction of the Government. In this view of the matter even if it is held that appellant is a public servant still the provision of Section 197 are not attracted at all."

238 Hon'ble Supreme Court in Ramesh Lal Jain Vs Naginder Singh Rana & Ors AIR 2006 SC ­336 has held as follows:

" Criminal P C (2 of 1974), S.197 Prevention of Corruption Act (49 of 1988) S. 19 Sanction for prosecution - Respondent - Sub Inspector of Police alleged to have misappropriated 24 cylinders and accepted bribe of Rs.20,000/­ from complainant for avoiding maltreatment - Sanction for prosecution in terms of Section 197 not necessary as Respondent could be removed from service by Dy Inspector General of Police and not by or with sanction of Government ." C C No.57/99 160/192 161

239 Similar view has been taken in following authorities:

"Harihar Prashad Vs. State of Bihar 1972 (3) SCC 89 and Kalicharan Mahapatra Vs. State of Orissa 1998 V AD S.C. 561 = AIR 1998 SC 2595, State of UP Vs. M.P. Gupta , 2003 AIR SCW 6887, " Shreekantiah Ramayya Mannipalli Vs. State of Bombay AIR 1955 SC 287" and also " Amrik Singh Vs State of Pepsu, AIR 1955 SC 309".

240 In this case sanction for the prosecution of applicant has been taken U/S 19 of P C Act 1988 which is on the file. It is now well settled legal proposition that once the sanction U/S 19 of P C Act has been obtained there is no need to obtained separate sanction U/S 197 Cr P C for prosecuting that accused for the offence U/S 120­B IPC.

241 Hon'ble Supreme Court in Ramesh Lal Jain Vs Naginder Singh Rana & Ors AIR 2006 SC ­336 has held as follows:

" Held, no order of sanction to prosecute C C No.57/99 161/192 162 repsdondeant U/S 197 Cr P C was necessary to be obtained from the State and that it was not a case where there was no valid order of sanction for prosecution of respondent under the 1988 Act . Hence, order of High Court quashing FIR for want of sanction would not be proper particularly in view of the fact that valid order of sanction was granted in relation of the offences committed by the respondent under 1988 Act."

242 Similar view has been taken by Our Hon'ble High Court in Dharambir Khattar & Ors Vs CBI 2009 IV AD ( Delhi) 657 and Kaushal Kumar Vs CBI & Ors 2009 I AD ( Delhi ) 599. 243 Recently similar view has been taken by a Full Bench of Hon'ble High Court of Allahabad in case of Neera Yadav Vs CBI in Ciminal Revisions No.1859, 1892, 2161 etc. It is held as follows:

i) For prosecution under Prevention of Corruption Act 1988 once sanction U/S 19 of the said Act is granted, there is no necessity for obtaining further sanction U/S 197 of Cr P C C C No.57/99 162/192 163 .

ii) Where a public servant is sought to be prosecuted under the provision of Prevention of Corruption Act 1988 read with section 120­B IPC , and sanction U/S 19 of Act of 1988 has been granted, it is not at all required to obtained sanction U/S 197 Cr P C from the State Government or any other authority merely because the public servant is also charged u/s.120B of IOPC.

244 The offence under PC Act 1988 as well as charge of criminal conspiracy , cannot set to constitute(Acts) in discharged of official duty.

245 In view of above discussion there is no merit in the arguments that sanction U/S 197 Cr P C is required for the prosecution of accused Mukesh Kr Gupta.

246 I have also gone through the sanction order Ex PW44/A which is a detail order running in five sheet having all C C No.57/99 163/192 164 the material particulars showing that sanctioning authority, being competent, had applied its mind to the facts and circumstances of this case, statement of witnesses as well as documents. 247 Accused K C Gupta was the then working as Head Cashier, in State Bank of Mysore, Connught Place Branch PW45 Sh D R Srodhara has deposed that on 2.9.99 he was working as Regional Manager, Region II, Central Zone at Banglore . Being Regional Manager was authority competent to remove Sh Krishan Chand Gupta, from his post . He has further deposed that after perusing the statement of witnesses and examining the record he found it a fit case for according the sanction for the prosecution of Kishan Chand Gupta, therefore he had accorded the sanction Ex PW45/A under his signatures for his prosecution. 248 I have also gone through the sanction order Ex PW45/A which is a detailed order running in five sheet having all the material particulars showing that sanctioning authority, being competent, had applied its mind to the facts and circumstances of this case, statement of witnesses as well as documents. C C No.57/99 164/192 165 249 Hon'ble Supreme Court has held that where the sanction order itself is a speaking order in such circumstances it is not necessary to prove it by leading evidence that sanctioning authority has applied his due mind. Reliance is placed on C S Krishnamurthy Vs. State of Karnataka 2005 IV AD (S.C.) 141 wherein in para No.9 it is observed as follows:

"Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income. That is contained in the sanction order itself. More so, as pointed out, the sanctioning authority has come in the witness box as witness No.40 and has deposed about his application of mind and after going through the reports of the Superintendent of Police, CBI and after discussing the matter with his legal department, he accorded sanction. It is not a case that the sanction is lacking in the present case. The view taken by the Additional Sessions Judge is not correct and the view taken by learned Single Judge of the High Court is justified."

250 In this regard, Hon'ble Supreme Court in Superintendent of police (CBI) Vs. Deepak Chaudhary - 1995 C C No.57/99 165/192 166 SCC (Crl.) 1095 has held as follows:

''We find force in the contention. The grant of sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima­facie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refused to grant sanction. The grant of sanction, therefore, being administrative act the need to prove an opportunity of hearing to the accused before according sanction does not arise. The High Court, therefore, was clearly in error in holding that the order of sanction is vitiated by violation of the principles of natural justice.''

251 Hon'ble Supreme Court in Kottha Perumal Vs. State Tr. Inspector of Police, Vigilance and Anti Corruption, AIR 2011 Supreme Court 356 has held as follows:

"Prevention of Corruption Act (49 of 1988) - Sanction to prosecute - Legality ­Examination of material facts by sanctioning authority - Sanction order specifically stating that statement of witnesses have been duly examined - Other materials such as copy of FIR as well as other official documents such as different mahazars were carefully examined ­Upon examination of statements of witnesses as also material on record, sanctioning authority has duly recorded its satisfaction that appellant should be C C No.57/99 166/192 167 prosecuted - Sanction order is legal."

252 In view of above discussion this Court is opinion that prosecution has proved valid sanctions for the prosecution of accused Mukesh Kr Gupta and Kishan Chand Gupta , in this case, accorded by authority competent to remove them from their posts. FACTUAL AND LEGAL ANALYSIS OF DEFENCE ARGUMENTS 253 All the Ld Defence counsels forcefully argued that neither WHO nor UNICEF had made any complaint with regard to criminal mis­appropriation of funds. It is well settled legal proposition that anybody can set criminal law in motion. There is no legal requirement that only the victim or sufferer can lodge the complaint. Anybody can blow the whistle .In these circumstances, there is no merit in this arguments.

C C  No.57/99                                                           167/192
                                     168

      254           It   is   argued   that   prosecution   has   not 

      proved   any   legal     agreement     with   regard   to 

entrustment of money between WHO/ UNICEF and Dr B N Mittal. Ld Defence counsel placing reliance on Velji Raghavji Patel Vs The State of Maharashtra , AIR 1965 Supreme Court 1433 argued that mere dominion over the property is not enough . It must be shown that his dominion was with the result of entustment. Prosecution has failed to prove any agreement with regard to entrusment of any money to Dr B N Mittal. It is argued that without entrustment of money to accused he cannot be liable for criminal misappropriation.

255 I have carefully gone through this authority. In this case there was a partnership firm. Every partner has domain over the partnership property by the operation of law as according to partnership Act every partner is a deemed agent of partnership firm. Thus every partner inter­se having a C C No.57/99 168/192 169 kind of dominion over the property of partnership firm . Considering the facts and circumstances of this case Hon'ble Supreme Court in this case has held that dominion of this kind does not satisfy the requirement of Section 405 IPC hence requires some agreement with regard to entrustment of property.

256 In view of above discussion, it is proved beyond reasonable doubt that facts and circumstances of case in hand are entirely different from the facts and circumstances of this authority as under

Partnership Act partners act under implied authority having the domain over the partnership firm.

257 In our case PW 4 Ashish Kumar Mukherjee, PW11 Dr M S Dharamshatru, PW59 Shiv Kumar Verma and PW 41 Dr J O Simon have specifically deposed that money was granted by WHO and UNICEF for leprosy eradication programme and deposited in account No.01­CEP 1046800 with ANZ Grindlays Bank , Connaught C C No.57/99 169/192 170 Place Branch, which was opened by Dr B N Mittal in his official capacity as DDG(Leprosy) . As such requirement of Section 405 IPC in the case in hand is established ipso facto.

258 A full bench of Hon'ble Supreme Court in Somnath Puri Vs State of Rajasthan AIR 1972 SC­1490 in this regard has held has follows:

"Section 405 IPC does not provide that entrustment of property should be by someone or the amount received must be the property of the person on whose behalf it is received. As long as the accused is given possession of the property for a specific purpose or to deal with in a particular manner . The ownership being in some person other than the accused, he can be said to entrusted with the property to applied in accordance with the terms of entrustment and for the benefit of owner. The expression ' entrusted ' in Section 409 C C No.57/99 170/192 171 is used in wide sence and includes all cases in which property is voluntaily handed over for a specific purpose and is dishonestly disposed of contrary to the terms on which possession has been handed over. A person authorised to collect monies on behalf of another is entrusted with the property when the amounts are paid to him."

259 Situation of this case absolutely meets all the elements detailed in above said authority , accordingly there remains no doubt in respect of entrustment of fund to accused B N Mittal by WHO/UNICEF , however by writing a letter Ex PW5/C­2 accused B N Mittal had also admitted the domain over the fund.

260 Hon'ble Supreme Court in the case of Mustafi Khan Vs. State of Maharashtra ( 2007) ­1 Supreme Court cases 623 has very categorically held as follows:

" Penal Code, 1860­ S. 409 - Conviction C C No.57/99 171/192 172 under­ Facts which are required to be proved for­ Burden of proof in respect thereof - Held, onus lies on prosecution to prove charge against accused and it has to prove that the accused, a public servant was entrusted with property of which he was duty­ bound to account for, and (b) the accused had misappropriated the property­ But, where entrustment is admitted by accused, it is for him to discharge the burden that the entrustment has been carried out as accepted and the obligation has been discharged­ Proof as to actual mode and manner of misappropriation would be difficult in case where entrustment is proved or admitted and in such a case the prosecution would have to rely largely on the truth or falsity of the explanation given by the accused."

261 In the case of State of H P Vs Karanvir AIR 2006 Supreme Court 2211 , Hon'ble Supreme Court has held as under:

C C No.57/99 172/192 173

" The actual manner of misappropriation, it is well settled, is not required to be proved by prosecution. Once entrustment is proved, it is for the accused to prove as to how the property entrusted to him was dealt within view of Section 405 of the IPC"

262 Accordingly, in view of the above authorities, there is no need of strength under the garb of 'trust' to be proved indispensably by prosecution, while the purpose of fund itself is under a pious programme of leprosy eradication, universally recognized by civilized nations giving dejure scope to WHO and UNICEF .

263 In the case of Krishan Kumar Vs UOI, AIR 1959 SC­1390 , Hon'ble Supreme Court on the issue of criminal mis­conduct by a public servant by way of fraudulently/ dishonestly misappropriating the property, has held as under:

" The offence U/S 5 (1) ( c ) of P C Act is the same as embezzlement, which in English law is C C No.57/99 173/192 174 constituted when the property has been received by the accused for or in the name or on account of master or employer of the accused and it is complete when the servant fraudulently misappropriate that property."

264 In nutshell, the offence of misappropriation stands established when the prosecution has successfully proved that the public servant received the property / fund, which he was under a implied duty to account to his employer and he has not done so. In the case in hand the accused public servant Dr B N Mittal undisputedly received huge fund from WHO/UNICEF under the authority of Govt of India as Dy Director General (Leprosy ) . As such accused B N Mittal was under duty to account to Govt of India, his employer as DDG (L) .

265 It is argued by Ld Defence counsel that prosecution has not proved any guideline for utilization of funds by the DDG ( L) .PW 4 Ashish C C No.57/99 174/192 175 Kumar Mukherjee, PW11 Dr M S Dharamshatru, PW59 Shiv Kumar Verma and PW 41 Dr J O Simon have specifically deposed that money was granted by WHO and UNICEF for leprosy eradication programme, thus it is clear that funds are to be utilized for the leprosy eradication schemes . These funds were not granted at all for the personal use of the accused B N Mittal or M K Gupta or K C Gupta. 266 Ld Defence counsel for accused B N Mittal referring the Statement of PW 4 Ashish Kumar Mukherjee, PW11 Dr M S Dharamshatru, PW55 N K Lakhanpal , PW57 A S Taliyal , PW58 Sanjay Kumar and PW 59 Shiv Kumar that money was provided by WHO/UNICEF . It was extra budgetary grant . It cannot be audited by the Govt of India or by CAG regarding utilization. It is to be scrutinized at four levels­ a) by the committee, b) by WHO , c) independent expert and d) International doner agencies. None of these authorities had made any C C No.57/99 175/192 176 complaint with regard to misappropriation of the fund by any of the accused. Rather the leprosy eradication programme was considered as flagship programme rated highly in the country. In this regard it is notice­ worthy that Ld Defence counsel could not show anything which may establish the fact that any of the authority, out of four mentioned above, ever scrutinized the utilization of funds or not. Moreover, provision of scrutiny under no circumstances can impair the right of investigating agency in any way howsoever the programme may be considered as flagship and even may be rated highly in the country. 267 Ld Defence counsel in this regard also referred the statement of J J Kobze recorded U/S 161 Cr PC proved in defence evidence Ex PW58/DA and argued that he has specifically stated that no deviation in funds was noticed. I have gone through Ex PW58/DA carefully . Relevant portion of his statement is as under:

C C No.57/99 176/192 177

" We do have a technical cell whose basic function is to proved technical assistance for effectively running various health related programmes . The Technical cell also review the programme from time to time with a view to assess the success of the programme. In case of leprosy eradication programme. I do feel that the technical cell must have reviewed the programme but for such a vast programme spreading across such a big country. It is practically very difficult to review / verify each and every activities carried out from WHO funds. We have to rely upon the certification by the Govt official. We have not notice any deviation from the proper utilization of funds even to Dr B N Mittal Ex DDG Leprosy for leprosy eradication work in India."

268 From the above quoted statement of Mr Kobza it is clear that he has not given a clean chit to C C No.57/99 177/192 178 Dr B N Mittal with regard to proper utilization of fund by him, rather he has expressed his inability to verify/review because of vast programme running in across a country like India to confirm the proper utilization of funds. In nutshell he has specified that no mis ­utilization of funds came to his notice . 269 According to Mr Kobza with regard to verification / proper utilization of funds certification of Govt official was acceptable. Relevant portion of his statement in this regard is as under:

" Regarding verification of voucher etc I state that the certification by the Govt officials on the proper utilization of funds for the purpopse they were advance is acceptable. However the payment are always subject to WHO audit."

270 It is admitted case of both the parties that no audit was got conduced by WHO/UNICEF . Thus it was the certificate given by the officer for proper C C No.57/99 178/192 179 utilization of the funds, which was acceptable . Accused B N Mittal who himself was indulged in large scale siphoning / misappropriating the funds bound to give certificate of proper utilization of funds himself to cover his misdeed because of which misappropriation of fund could not detected at that juncture.

271 Ld Defence counsel relying upon Ex DW2/DZ­2 argued that it also proves that there was no misappropriation of funds by accused B N Mittal. Relevant portion of the same is as under:

" In case of non material expenditure these should not be routed through such agencies as these expenditure cannot not reflected in the budget . In all such cash advances to various bodies like District Societies or Consultants or the designated coordinators in the Ministry of Health there is a only statement of expenditure alongwith copies of vouchers if any submitted to WHO. There is at no C C No.57/99 179/192 180 stage auditing ever done of such accounts. In the absence of auditing it is not possible to find out whether the expenses have been incurred according to the norms of the Govt and where they have been accounted for in a proper way."

272 From the above quoted portion it is proved that because of the absence of auditing misappropriation of fund could not detected in this case.

273 Ld Defence counsel argued that accused cannot be prosecuted for committed offence U/S 13 (1) ( c ) and 13 (1) (d) of P C Act . From the above discussions it is proved beyond reasonable doubt that amount was entrusted to accused B N Mittal / put under his domain by WHO and UNICEF for utilizing the same for the eradication of leprosy but he had used the amount for purchasing properties in his own name and in the name of his family thus committed the criminal breach of trust with active connivance of C C No.57/99 180/192 181 his co­accused M K Gupta and K C Gupta by abusing his official position as public servant. It is also proved on the judicial file that accused B N Mittal being a public servant without prior permission of competent authority had started his personal business by flouting a dummy firm under the name and style Kanak Ads and opened its account in State Bank of Mysore CP Branch under his signatures, thus he has violated CCS Conduct Rule 15 and thereby abuse his official position. In these circumstances, there is no merit in the argument of Ld Defence counsel that accused B N Mittal has not committed offence U/S 13 (1) ( c ) and ( d ) of P C Act 1988.

274 It is argued on behalf of accused Mukesh Gupta that no amount was entrusted to him by WHO /UNICEF hence he cannot be prosecuted for committing any criminal breach of trust. It is proved on the judicial file he was working as Statistical Assistant under Dr B N Mittal . He had opened C C No.57/99 181/192 182 account of M/S Apex Enterprises in his own name . Accused B N Mittal had transferred a total amount of Rs. 43,64,970/­ from the official A/C No.01­CEP 1046800 with ANZ Grindlays Bank , Connaught Place Branch, which was opened by Dr B N Mittal in his official capacity as DDG(L) , which was received from WHO/UNICEF for leprosy eradication programme . It is also proved on the file that accused M K Gupta was working under accused B N Mittal in this very project of leprosy eradication programme thus he was well aware that this amount was entrusted to B N Mittal for official purpose. In spite of knowing it he had withdrawn the above referred amount in cash and also obtained one DD in the name of DLF Universal Ltd and handed over the same to Dr B N Mittal which he has utilized for making payment to DLF qua the apartment purchased by him. Thus his act of withdrawing the money and handing over the DD in the name of DLF signifies even his admitted C C No.57/99 182/192 183 domain over the funds received from WHO and UNICEF. Moreover accused M K Gupta has been charged U/S 120­B read with Section 40­9 IPC , Section 13 (2) r/w Section 13 (1) (d) & ( c ) of P C Act 1988 .

275 Accused Mukesh Gupta in his statement recorded U/S 313 Cr P C has not denied encashing of cheques from the account of Apex Enterprises in cash . He has simply stated that it is a matter of record. Accused M K Gupta has not given any explanation as to how he had utilized such amount for the purpose of leprosy eradication programme. It again proves that he had misappropriated the amount in connivance and conspiracy of his co­accused B N Mittal and K C Gupta.

276 Ld Defence counsel for accused M K Gupta argued that there is no evidence to prove that accused M K Gupta had opened the account in the name of Novex Traders as Sat Parkash because PW C C No.57/99 183/192 184 22 K K Davis has stated that he did not know who had signed as Sat Parkash. There is no other evidence except the report of hand writing expert against accused M K Gupta in this regard. Report of hand writing expert cannot be relied upon without corroborating evidence.

277 From the foregoing discussion in this judgment it is clear that there is lot of documentary evidence with regard to transferring of money by way of cheques and DDs from the official account of Dr B N Mittal to the above referred account opened by M K Gupta is substantiated by intact circumstantial evidence corroborated with opinion of GEQD. Even otherwise, as discussed in this judgment this Court is of opinion that report of hand writing expert is reliable and trustworthy and can be relied upon without any corroboration in view of law laid down by Hon'ble Supreme Court in Murari Lal Vs State of MP and Ram Narain Vs State of Uttar Pradesh.

C C No.57/99 184/192 185 278 It is also proved on the judicial file that accused M K Gupta being a public servant without prior permission of competent authority had started his personal business by flouting a dummy firm under the name and style Apex Enterprises and opened its account in State Bank of Mysore CP Branch under his signatures, thus he has violated CCS Conduct Rule 15 and thereby abused his official position.

279 It is also proved on the judicial file that accused M K Gupta being a public servant without prior permission of competent authority had opened an account in the assumed name as Sat Parkash by flouting a dummy firm under the name and style Novex Traders in State Bank of Mysore CP Branch under his signatures as Sat Parkash, thus he has violated CCS Conduct Rule 15 and thereby abuse his official position.

280 In these circumstances, there is no merit C C No.57/99 185/192 186 in the argument of Ld Defence counsel that accused Mukesh Gupta has not committed offence U/S 120­ B r/w Section 409 IPC r/w Section 13 (2) r/w 13 (1) ( c ) and ( d ) of P C Act 1988.

      281                    It   is   argued   by   Ld   Counsel   for 

      accused   K   C   Gupta   that   Dr     J   O   Simon   had   also 

introduced the account of accused B N Mittal and withdrawn huge amount from his account which was transferred by B N Mittal in his account but J O Simon has been cited as a witness while K C Gupta has been implicated as an accused. Thus investigation has not been carried out fairly in this case.

282 It is also proved on the file that accused B N Mittal had purchased immovable property/ transferred money in the name of Amit Mittal and Deepak Mittal both sons of B N Mittal, Krishna Mittal wife of Dr B N Mittal and Vinita Mittal out of C C No.57/99 186/192 187 the funds granted by WHO/UNICEF for leprosy eradication. but they have not been implicated as an accused in this case.

283 It is argued that investigation in this case is not conducted properly hence the same is bad. Defence cannot take advantage of bad investigation where there is evidence available on the record against the accused. In this regard Hon'ble Supreme Court in a latest judgment titled Zindar Ali Vs. State of West Bengal & Anr., 2009 III AD (S C ) 7 held as follows:

"Indian Penal Code, 1860 ­Secs. 376 and 417 - Immediate disclosure of rape by the prosecutrix - Version of prosecutrix unchallenged - Admission by the accused in village panchayat - Medical evidence also another proof - Accused behind bar for five years - SC held - Defence cannot take advantage of bad investigation where there is clinching evidence available to the Prosecution."

284 Hon'ble Supreme Court in Rohtash Vs. State of Rajasthan (2007) 2 SCC (Crl.) 382 has held that that defective C C No.57/99 187/192 188 investigation would not lead to total rejection of prosecution case. 285 Hon'ble Supreme Court in State of MP Vs Man Singh ( 2007) 2 SCC 390 in this regard has held as follows:

"Criminal Trial­ Investigation­ Deficiencies in investigation­ Effect­ Held, cannot be a ground to discard the prosecution version which is authentic, credible and cogent­ Criminal Procedure Code, 1973­ S.157."

286 In Karnail Singh Vs. State of MP 1995 SCC 977it has been held by Hon'ble Supreme Court that in case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring Investigating Officer.

287 Considering the case from all the angles there is no merit in these argument of Ld. Defence counsel. 288 Ld Defence counsel for accused K C Gupta argued that prosecution has not produced any evidence to prove that he had obtained any pecuniary advantage. From the foregoing C C No.57/99 188/192 189 discussion in this judgment it is also proved that accused K C Gupta had obtained pecuniary advantage by receiving the payments of cheque in his own name and by receiving the payment in cash of the cheques issued in the name of M K Gupta and B N Mittal.

289 Prosecution has proved beyond reasonable doubt accused B N Mittal had purchased first floor of property No.40/47 EPDP Colony, C.R. Park, New Delhi and flat No.103/12 Silveroak Apartments, DLF Phase­1, Qutub Enclave Complex Gurgaonin his own name, property No.41, Gautam Nagar N Delhi in the name of his wife Smt Krishna Mittal, two plots bearing No.A­245 and A­246 in Shivalik, New Delhi in the name of his sons Amit Mittal and Deepak Mittal out of the funds misappropriated from the amount granted by WHO/UNICEF for leprosy eradication programmes and made the payments by DDs / Cheques. I hold that above said properties purchased by Dr B N Mittal and in the name of his family members are outcome of misappropriated amount from WHO/UNICEF which he had illegally converted for his own use instead of utilizing the same C C No.57/99 189/192 190 for leprosy eradication programme.

290 Where two constructions are eminently reasonable the Court has to accept the one that seeks to eradicate corruption to one which seeks to perpetuate it. Hon'ble Supreme Court in a latest authority Dr. Subramanium Swami Vs. Dr. Manmohan Singh, JT 2012 a(2) SC 203, in this regard, in para no.45 has held as follows:

"Today, corruption in our court not only posses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian Democracy and the Rule of Law. The Magnitude of corruption in our public life is incompatible with the concept of socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes developments and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the court is that any anti corruption law has to be interpreted and worked out in such a fasion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable the Court has to accept the one that seeks to eradicate corruption to one which seeks to perpetuate it.

C C No.57/99 190/192 191

291 Hon'ble Supreme Court in State of Punjab Vs. Pohla Singh, 2003 (3) CCC 75 has held as follows:

"Appreciation of evidence - The prosecution is not supposed to meet every hypothetical question raised by the defence ­If crime is to be punished in a glosseme way niceties must yield to realistic appraisal."

292 In view of above discussion this court is of opinion that prosecution has proved its case beyond reasonable doubts against accused B N Mittal, Mukesh Kumar Gupta and K C Gupta for the commission of offence U/s 120­B, r/w 409 IPC and Section 13(2) r/w 13(1) (c ) & (d) of P C Act, 1988. 293 Prosecution has also proved its case beyond reasonable doubts against accused B N Mittal for commission of substantive offence punishable U/s 409 IPC and Section 13 (2) r/w 13(1) (c ) and Section 13 (2) r/w 13(1) (d ) of P C Act 1988 294 Prosecution has also proved its case beyond reasonable doubts against accused Mukesh Kumar Gupta for the C C No.57/99 191/192 192 commission of substantive offence punishable Section 13 (2) r/w 13(1) (d ) of P C Act 1988 295 Prosecution has also proved its case beyond reasonable doubts against accused K C Gupta for the commission of substantive offence punishable Section 13 (2) r/w 13(1) (d ) of P C Act 1988 296 All the accused namely B N Mittal, Mukesh Kumar and Kishan Chand Gupta are held guilty for the aforesaid offences accordingly.

Announced in open court                       ( V. K. Maheshwari) 
On 9.8. 2012                               SPECIAL JUDGE: (P C Act)­03 
                                                  CBI: DELHI




C C  No.57/99                                                         192/192
                                        193

                IN THE COURT OF V .K .MAHESHWARI 
       SPECIAL JUDGE: (P C Act)­03  CBI DELHI

                                CC No. 57/99


CBI            Vs.               1     Dr Baij Nath Mittal,
                                       S/O Late Sh Bhagwant Ram Mittal
                                       Ex Dy Director General,
                                       ( Leprosy),M/O Health & Family
                                       Welfare Govt of India, Nirman 
                                       Bhawan, New Delhi.
                                       R/O B­195, Chitranjan Park,
                                       New Delhi

                                  2    Shri Mukesh Kumar Gupta,
                                       S/O Sh Ram Gopal Gupta,
                                       Statistical Assistant, DGHS,
                                       M/O Health & Family
                                       Welfare Govt of India, Nirman 
                                       Bhawan, New Delhi.
                                       R/O GI­931 Sarojini Nagar
                                       New Delhi.

                                         3         Krishan Chand Gupta 
                                                   S/O Sh Tek Chand Gupta,
                                                   Head Cashier, State Bank of 
                                                   Mysore, Paschim Enclave Branch,
                                                   New Delhi.

C C  No.57/99                                                             193/192
                                       194

                                     R/O D­221, Chattarpur Pahari, 
                                     Behind Chattarpur Mandir,
                                     Delhi.

RC No.                               : 3(A)/96­CBI/ACU­IX

 


ORDER ON SENTENCE:

1              Vide my separate detailed judgment dated 9.8.2012  B 

N Mittal, Mukesh Kumar Gupta and K C Gupta were held guilty for the commission of offence U/s 120­B, r/w 409 IPC and Section 13(2) r/w 13(1) (c ) & (d) of P C Act, 1988. 2 Accused B N Mittal was also convicted for the substantive offence punishable U/s 409 IPC and Section 13 (2) r/w 13(1) (c ) and Section 13 (2) r/w 13(1) (d ) of P C Act 1988. 3 Accused Mukesh Kumar Gupta was held guilty for the commission of substantive offence punishable Under Section 13 (2) r/w 13(1) (d ) of P C Act 1988 .

C C No.57/99 194/192 195 4 Accused K C Gupta was also held guilty for the commission of substantive offence punishable Under Section 13 (2) r/w 13(1) (d ) of P C Act 1988 .

5 Arguments on sentence heard.

6 It is argued on behalf of convict B N Mittal that he is not a previous convict . He is a senior citizen aged about 73 years . He has deep roots in the society, his family comprising of his wife and two sons. He is suffering from cardiac disease and undergoing treatment for the same. He was on bail throughout the trial and has never misused the concession of bail hence lenient view may be taken against him.

7 It is argued on behalf of convict M K Gupta that he is the sole bread earner for his family comprising of his wife and two children. His wife is suffering from severe arthritis. He is not a previous convict . He was on bail throughout the trial and has never misused the concession of bail therefore lenient view may be taken against him.

C C No.57/99 195/192 196 8 It is argued on behalf of convict K C Gupta that he is facing this trial since 2000. He is 55 years of age and suffering from high blood pressure as well as diabetes and has to take injection of Insulin. His wife is suffering from Thyroid and Rhemuatic pains. His father is of 85 years of age therefore suffering from old age infirmities and illness. His services has been terminated from the bank in the year 2006 because of this case . He is leading a very hard life and earning his livelihood by giving tuitions . He had not misappropriated any money or obtained any pecuniary gain.

9 Ld Sr PP Sh Brajesh Shukla argued that leprosy has officially eradicated in India in the year 2005, but according to a survey 1,30,000 Indians are reportedly diagnosed with leprosy every year. Amongst several other factors of leprosy reoccurring, the role of dishonest corrupt public servant like convicts has ignited it more vulnerable curse by swallowing the system itself. Such public servants have pushed lepers to survive on the mercy C C No.57/99 196/192 197 of humanity despite of scientists endeavor to declare this hatred disease curable. Therefore, huge assets acquired by the convicts on the corps of lepers, purchased from the fund of leprosy eradication, may be forfeited and they be dealt stringently according to deterrent theory of punishment by imposing consecutive maximum sentence with heavy fine . 10 It is further submitted by Ld SPP that in criminal appeal No. 299 of 1997, titled State Rajasthan Vs Dhool Singh, Hon'ble Supreme Court, on December 18th , 2003 has held that "the Courts should bear in mind that there is a requirement in law that every conviction should be followed by an appropriate sentence within the period stipulated in law. Discretion in this regard is no absolute or whimsical. It is controlled by law and to some extent by judicial discretion applicable to the facts of the case. Therefore, there is need for the Courts to apply its mind, while imposing sentence , as to why it should be less then maximum sentence prescribed C C No.57/99 197/192 198 under law."

11 It is proved on the judicial file beyond reasonable doubts that account No.01­CEP 1046800 with ANZ Grindlays Bank , Connaught Place Branch, was opened by convict Dr B N Mittal in his official capacity as DDG(L) in which a total amount of Rs.4,42,30,456/­ received from WHO/UNICEF for leprosy eradication programme, was deposited, from which convict B N Mittal had transferred a total amount of Rs.22,79,311/­ by cheques in the account of Novex Traders which was opened by M K Gupta under the assume name of Sat Parkash bearing A/C No. 1639 in State Bank of Mysore , C.P Branch, N Delhi out of which a total amount of Rs. 21,91,411/­ was withdrawn by convict M K Gupta himself under the assume name of Sat Parkash by issuing self cheques as discussed in detail in the judgment. He had also obtained a DD in a sum of Rs.88,350/­ in the name of DLF Universal Ltd which was utilized by convict B N Mittal for purchasing Flat No.103/12 Silveroak Apartment, DLF­I, Qutub Enclave, Gurgaon.

C C No.57/99 198/192 199 12 It is proved on the judicial file beyond reasonable doubts that convict B N Mittal had flouted a dummy firm M/S Kanak Ads and opened Current Account No.1640 in State Bank of Mysore , C.P Branch, N Delhi as its Proprietor furnishing residential address of convict M K Gupta. Convict B N Mittal had transferred a total amount of Rs.32,43,760/­ by cheques from account No.01­CEP 1046800 in the name of DDG (L). It is also proved beyond reasonable doubts that convict B N Mittal had misappropriated a sum of Rs.32,40,000/­ from this account by issuing various self cheques and cheques in the name of O P Dawar, Mukesh Kumar Gupta, Amit Mittal, Deepak Mittal and in favour of Vinita Export, which is a firm flouted by his daughter in law .

13 Prosecution has successfully established that convict M K Gupta had opened Account No.1696 in State Bank of Mysore , C.P Branch, N Delhi in the name Apex Enterprises as its Proprietor furnishing a fictitious address and convict B N Mittal C C No.57/99 199/192 200 had transferred a total amount of Rs.43,64,970/­ by issuing three cheques from the above referred account No.01­CEP 1046800 in the name of DDG (L). Convict M K Gupta had withdrawn a total sum of Rs.36,69,000/­ from this account himself by issuing self cheques as discussed in detail in the judgment and issued a cheque for a sum of Rs.2,00,050/­ in favour of 'yourself' i e the bank for purchasing two DDs, for an amount of Rs. One lac each in the name of convict B N Mittal . From this account convict M K Gupta purchased a DD in a sum of Rs.4,69,157/­ in the name of DLF Universal Ltd which was utilized by convict B N Mittal for making final payment of Flat No.103/12 Silveroak Apartment, DLF­I, Qutub Enclave, Gurgaon purchased by him. 14 Prosecution has successfully established that convict B N Mittal had issued a DD in sum of Rs.18,70,000/­ in the name of J O Simon from the account No.01CEP 1046800 in the name of Dy. Director General (Leprosy) which Mr Simon had deposited in his account No.71021 SBI Madras. Mr J O Simon got prepared two DDs of Rs.3,00,000/­ each in the name of Uday Ram Dhyani C C No.57/99 200/192 201 by issuing a cheque of Rs.6,03,000/­ in the name of " yourself" i e bank on the directions of convict B N Mittal and given the same to him which were utilized by Mr Mittal. Mr J O Simon got prepared two DDs of Rs.6,00,000/­each in the name of O P Dawar and Avinash Kumar by issuing a cheque of Rs.12,3,000/­ in the name of " yourself" i e bank on the directions of convict B N Mittal and given the same to him . Convict B N Mittal had given both these drafts to Mr O P Dawar and Avinash Kumar respectively for his personal purposes.

15 Prosecution has successfully established that convict B N Mittal had issued two DDs in sum of Rs.3,00,000/­ and 18,50,000/­ in the name of J O Simon from the account No.01CEP 1046800 in the name of Dy. Director General (Leprosy) which Mr Simon had deposited in his account No.0620 Indian Overseas Bank , Madras . Mr J O Simon got prepared two DDs of Rs. 6,25,000/­ each in the name of Gautam Parkash Sahni and Hardeep Sahni by issuing two cheques of Rs.6,26,500/­ each in the name of " yourself" i e bank, on the directions of convict B N C C No.57/99 201/192 202 Mittal and given the same to him . Convict B N Mittal had utilized both these drafts for purchasing two plots i e A­245 and A­246, Shivalik N Delhi in the name of his sons Amit and Deepak Mittal. 16 Thus prosecution has successfully established that convict B N Mittal had purhcased Flat No 103/12 Silveroak Apartment DLF­I,Qutub Enclave Complex, Gurgaon payment of which was made by one DD of Rs.88,350/­ which was got prepared by Mukesh Kumar Gupta under the assume name of Sat Parkash from the account of Novex Traders and other DD of Rs. 4,69,132/­ which was also got prepared by Mukesh Kr Gupta from the account of Apex enterprises .

17 Prosecution has also successfully established that convict B N Mittal had issued a cheque No.58016 in the sum of Rs.1,50,000/­ in favour of Rajesh Chopra towards the payment of ground floor of property No.41, Gautam Nagar, New Delhi­49 which he had purchased in the name of his wife Dr. Krishna Mittal. Entry of this cheque is reflected in Ex PW 46/H which is C C No.57/99 202/192 203 statement of account of account No.500150 in the name of accused B N Mittal in ABN Amro Bank in which the amount was deposited by convict B N Mittal from pre maturally encashed Akshay Deposit certificates purchased out of the amount transferred from the account No 01CEP 1046800 in the name of Dy. Director General (Leprosy) to Dr J O Simon. 18 Prosecution has successfully established that convict B N Mittal had purchased Flat No.40/47, EPDP Colony C.R Park in a sum of Rs.4,50,000/­ payment of which was made through four DDs of one lac each in favour of M D Estates from the amount misappropriated by convict B N Mittal, as discussed in detail in the judgment.

19 Prosecution has also successfully established that convict B N Mittal had purchased Plot No.A­245 Shivalik N Delhi in the name of his son Amit Mittal, payment of which was made through DD of Rs.6,25,000/­ which was got prepared by him from Dr J O Simon in favour of Hardeep Sahni out of the C C No.57/99 203/192 204 amount of DDG ( Leprosy ) as discussed in detail in the judgment. 20 Prosecution has also successfully established that convict B N Mittal had purchased Plot No.A­246 Shivalik N Delhi in the name of his son Deepak Mittal, payment of which was made through DD of Rs.6,25,000/­ which was got prepared by him from Dr J O Simon in favour of Gautam Parkash Sahni out of the amount of DDG ( Leprosy ) as discussed in detail in the judgment.

21 Prosecution has also successfully established that convict B N Mittal had transferred a total amount of Rs. 43,64,970/­ from the account of DDG ( Leprosy) to the account opened in the name of Apex Enterprises opened by accused Mukesh Gupta as its proprietor out of which accused Mukesh Gupta had withdrawn a total amount of Rs.36,69,000/­ in cash by issuing various self cheques as discussed in detailed in the judgment.

22 Prosecution has also successfully established that convict B N Mittal had transferred a total amount of Rs. C C No.57/99 204/192 205 22,79,311/­ from the account of DDG ( Leprosy) to the account opened in the name of Novex Traders by accused Mukesh Gupta under the assume name of Sat Parkash as its proprietor out of which accused Mukesh Gupta had withdrawn a total amount of Rs.21,91,411/­ in cash by issuing various self cheques as discussed in detailed in the judgment.

23 Thus prosecution has proved that convict Mukesh Gupta had withdrawn a sum of Rs.58,60,411/­ in cash by issuing various self cheques. In this way convict B N Mittal in connivance and conspiracy of his co­accused had misappropriated a total amount of Rs.1,46,23,041/­ 24 Prosecution has also successfully established that convict B N Mittal and Mukesh Gupta had illegally flouted dummy firms being the Proprietors of the same inspite of being public servant without having permission from the competent authority required under CCS Rules and convict B N Mittal illegally abusing his official position transferred huge amount from the official account No.01CEO 1046800 in the name of C C No.57/99 205/192 206 DDG(L) in the account of these dummy firms and later on themselves withdrawan the amount from the account of such firms.

25 Leprosy is a curse. It is a chronic infectious diseases caused by mycobectrium leprae. It is primarily disease of the poor because they are living in unhygienic condition hence opened to the infection of bectria . Leprosy is causing permanent disability to the infected person. Lepers due to the disfiguring affects, caused by the disease become stigmatize, isolated and shunned. Though this disease is now readily treatable with multi drug therapy, unfortunately, individual with leprosy is still shunned, isolated and stigmatize thus the fear of leprosy is worst then the disease itself. Even today life of lepers is full of plight and merciful.

26 Leprosy Eradication programme was the beginning to regaining the lost rights and dignity of the lepers. Leprosy eradication work is not merely medical relief, it is transforming C C No.57/99 206/192 207 frustration of life into joy of dedication, personal ambitions into self less service. People who have faced stigma of Leprosy or the person closely associated with them like Doctors / nurses/ attendants have the best understanding of their situation in society and needs.

27 Convict Dr B N Mittal, is a highly qualified senior Doctor who was the then assigned the job of Dy Director General ( Leprosy) under the scheme of leprosy eradication programmes by Govt of India which was also aided by WHO / UNICEF and other foreign agencies. Being a Senior Doctor he must be well aware of all the consequences and evil affects caused by leprosy to the human beings. As a Doctor , he must have looked into the anxious faces of lepers having a desire to survive and lead a life of dignity, who used to consider the Doctor as next to God for them but Mr Mittal, inspite of all this, willingly and dishonestly misappropriated the money of their shares thereby shattered their hopes to survive in this world with dignity after recovering from the disease.

C C No.57/99 207/192 208 28 It is strongly argued on behalf of Mr B N Mittal that a lenient view may be taken against him as he is a heart patient and already suffered two mild heart attacks. Is it not an irony that Doctor B N Mittal who had misappropriated Rs.1,46,23,041/­ that too in the year 1991­92 granted for the eradication of leprosy and purchased properties in his own name and in the name of his family members, now seeking leniency under the garb of his illness. Mr B N Mittal by his misdeeds not only committed this crime but also earned bad name for noble medical profession. Money was also granted by foreign agency for leprosy eradication programme in India, therefore he has also shaken the confidence of such foreign agency to donate their funds for such noble causes like eradication of various diseases in India in future. This act of convict has tarnished image of India in the International Community.

29 Hon'ble Supreme Court in Balkrishna Chhaganlal Soni Vs State of West Bengal (1974) 3 SSC 567 has observed that C C No.57/99 208/192 209 social and ecnomic offences stood on a graver footing in respect of punishment and if judicial institutions were not to be cynically viewed by the community, the Courts must help the process of conviction."

30 In Sewaka Perumal Vs State of T N AIR 1991 SC 1463 Hon'ble Supreme Court has held as follows:

" 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. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."

31 Hon'ble Supreme Court with regard to delay of 28 years in disposal of the case has held that it is not a sufficient ground to take a lenient view. In Sunil Kumar Vs State of UP, (2010) 2 SCC 5 has held as follows:

" Defence contention before Supreme Court that since C C No.57/99 209/192 210 incident took place about 28 years back, sentence of four years RI was harsh punishment­ tenability - Held, in fact, punishment was on lenient sight merely because appeal remained pending and merely because incident took place long back would not by itself justify and interference with punishment, particularly,when punishment itself is a lenient one."

32 Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime i.e. where it relates to offences against women, dacoity, 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, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise counterproductive in the long run and against social interest which needs to be cared for and strengthened by string of deterrence C C No.57/99 210/192 211 inbuilt in the sentencing system.

33 It is proved on the judicial file by the prosecution beyond reasonable doubts that convict B N Mittal from the misappropriated amount had purchased Flat 103/12 Silveroak Apartments DLF­I Qutub Enclave Complex, Gurgaon and Flat No. 40/47 EPDP Colony, C R Park, N Delhi, in his own name, ground floor of property No.41 Gautam Nagar, New Delhi ­49 in the name of his wife Dr Krishna Mittal and Plot No. A­245 and A­246, Shivalik N Delhi in the name of his sons Amit and Deepak Mittal. One of the most effective measure to check the corruption is that corrupt public servants should not be allowed to reap the benefit of the crop of corruption sowed by them using the corrupt means therefore all these properties are forfeited to State. ( Mirza Iqbal Hussain Vs State of UP AIR 1983 SC­60 and K Ponnuswamy Vs State of T.N AIR 2001 Supreme Court 2464). As these properties were purchased by accused B N Mittal misappropriating the funds received for leprosy eradication programmes hence these properties be used for running C C No.57/99 211/192 212 asylum for lepers. Convict B N Mittal, his wife Dr Krishna Mittal and his sons Amit Mittal and Deepak Mittal are directed not to sale, alienate, transfer, mortgage or dispose of such properties in their name. CBI is also directed to get a notice serve in this regard to Dr Krishna Mittal , Amit Mittal and Deepak Mittal. 34 It is proved on file by prosecution beyond reasonable doubts that convict Mukesh Kumar Gupta had illegally withdrawn a total sum of Rs.58,60,411/­ in cash from the accounts opened in the name of M/S Apex Enterprises and Novex Traders in connivance and conspiracy with his co­accused Dr B N Mittal, therefore assets available in the name of Mukesh Kumar Gupta worth equivalent to Rs. 58,60,411/­ are forfeited to State . Convict Mukesh Kumar Gupta is directed not to sale, alienate, transfer, mortgage or to dispose off all his movable / immovable assets. He is also directed not to withdraw any amount from his bank accounts in his own name or in the joint name with anybody else. 35 After considering all the arguments raised in the C C No.57/99 212/192 213 Court and in view of the above discussion, convict B N Mittal is sentenced to undergo Five years RI along with a fine of 1,00,000/­ ( Rs. One lac only) I D six months S I U/s 120­B, r/w 409 IPC and Section 13(2) r/w 13(1) (c ) & (d) of P C Act, 1988. 36 Convict B N Mittal is also sentenced to undergo Seven years RI along with a fine of Rs.3,00,000/­ ( Rs Three Lacs only ) I D one year S I for the substantive offence punishable U/s 409 IPC 37 Convict B N Mittal is also sentenced to undergo Five years RI along with a fine of 1,00,000/­ ( Rs. One lac only) I D six months S I for the substantive offence punishable Under Section 13(2) r/w 13(1) (c ) of P C Act, 1988.

38 Convict B N Mittal is also sentenced to undergo Five years RI along with a fine of 1,00,000/­ ( Rs. One lac only) I D six months S I for the substantive offence punishable Under Section 13(2) r/w 13(1) (d ) of P C Act, 1988.

C C No.57/99 213/192 214 39 Convict Mukesh Kumar Gupta is sentenced to undergo Five years RI along with a fine of 1,00,000/­ ( Rs. One lac only) I D six months S I U/s 120­B, r/w 409 IPC and Section 13(2) r/w 13(1) (c ) & (d) of P C Act, 1988.

40 Convict Mukesh Kumar Gupta is also sentenced to undergo Five years RI along with a fine of 2,00,000/­ ( Rs. Two lacs only) I D one year S I for the substantive offence punishable Under Section 13(2) r/w 13(1) (d ) of P C Act, 1988. 41 Convict Kishan Chand Gupta is sentenced to undergo three years RI along with a fine of 25,000/­( Rs. Twenty Five Thousand only) I D six months S I U/s 120­B, r/w 409 IPC and Section 13(2) r/w 13(1) (c ) & (d) of P C Act, 1988. 42 Convict Kishan Chand Gupta is also sentenced to undergo three years RI along with a fine of 25,000/­ ( Rs. Twenty Five Thousand only) I D six months S I for the substantive C C No.57/99 214/192 215 offence punishable Under Section 13(2) r/w 13(1) (d ) of P C Act, 1988.

43 All the sentences will run concurrently. A copy of judgment and this order on sentence be given to all the accused free of costs. Benefit of Section 428 Cr P C is given to all the accused.

Ordered accordingly.

ANNOUNCED IN OPEN COURT       (V K MAHESHWARI)
TODAY ON  16.8.2012                                  SPECIAL   JUDGE: 
DELHI




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