Delhi District Court
25 vs Chetan Sharma & Others. Page No.: 25 Of ... on 19 November, 2015
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CBI Case No.40/11
IN THE COURT OF SHRI HARISH DUDANI
SPECIAL JUDGE, (PC ACT) (CBI)1
DISTRICT COURTS(SW), DWARKA, NEW DELHI.
In the matter of :
CBI Case No. : 40/11
RC No. : 071/2009(E)/0001/CBI/EOUIII/New Delhi.
Central Bureau of Investigation,
EOUIII, New Delhi.
Versus
1. Chetan Sharma S/o Lt. Sh. Om Prakash,
R/o : B23, IInd Floor, Panchsheel Garden, Shahdara, Delhi.
2. Vipin Sharma S/o Lt. Sh. Om Prakash
R/o : C10/88, Yamuna Vihar, Delhi.
3. Pawan Kumar Aggarwal S/o Lt. Sh. Fakir Chand Aggarwal
R/o : II B/93, Alaknanda Appt, Vaishali, Ghaziabad.
4. M. C. Aggarwal S/o Lt. Sh. C. R. Aggarwal
R/o : F1U/15, Pitampura, Delhi.
Date of Institution: 29.07.2010
Date on which Judgment Reserved: 28.10.2015
Date on which Judgment Pronounced: 03.11.2015
JUDGMENT
1. In addition to aforesaid accused persons, accused CBI Vs. Chetan Sharma & others. Page No.: 1 of 173 :2: CBI Case No.40/11 Mazher Alam and Harbans Kaur were also sent for trial however, accused Harbans Kaur could not be arrested and was declared PO vide order dated 20.01.2012 and during pendancy of proceedings accused Mazher Alam expired and proceedings against him were abated vide order dated 16.3.2012.
2. A complaint was lodged by Shri P. K. Singh, the then Chief Manager, Union Bank of India, Sadar Bazar against accused Chetan Sharma for cheating the bank on the basis of forged & fabricated documents and on that complaint, present case was registered on 22.1.2009 by CBI against the above accused persons under sections 120B r/w 419, 420, 467, 468, 471 of Indian Penal Code and under section 13(2) read with section 13 (1)(d) of Prevention of Corruption Act, 1988. The investigation of the case was entrusted to Shri Ajeet Singh, Inspector, CBI/EOUII, who after investigation filed the chargesheet.
3. The case of the prosecution against the accused persons is that on 5.6.2007 accused Chetan Sharma, representing as Sole Proprietor of M/s Royal Sales Corporation, 1/342, Gali No.1, Friends Colony, Industrial Area, Shahdara New Delhi95, opened a current account No. 307501010133597 in the name of M/s Royal Sales Corporation with Union Bank of India, Sadar Bazar, Delhi. The said account was shown to be introduced by Shri Prem Nath Khanna, Proprietor of Sonata Impex and was authorised by accused M. C. CBI Vs. Chetan Sharma & others. Page No.: 2 of 173 :3: CBI Case No.40/11 Aggarwal, the then Branch Manager of the said Bank.
4. Vide his application dated 15.6.2007, accused Chetan Sharma applied for grant of Cash Credit(C.C.) Limit of Rs. One Crore for carrying out business of copper wires against the Hypothecation of stocks, debtors and collateral security of property in the name of Raman Devi @ Rama Devi at 37/575, Onkar Nagar, Tri Nagar, Delhi (also known as H. No.99, Onkar Nagar, Tri Nagar, Delhi) and submitted various supporting documents as required viz Audit Report for the year 200506; balance Sheet for the year 2005 06; provisional balance sheet for the year 2007; IT Return for the year 200506 and Registration Certificate of M/s Royal Sales Corporation with the office of Commissioner of Industries.
5. It is also alleged by the CBI that the above said financial status was projected on the basis of forged and fabricated documents and on false inputs. That neither the auditor mentioned was found in existence, nor the factory premises of M/s Royal Sales Corporation was in existence. That the registration certificate of M/s Royal Sales Corporation was not issued by the office of Commissioner of Industries.
6. It is alleged that accused M.C. Aggarwal, the then Branch Manager, Union Bank of India submitted a false inspection report dated 26.05.07 in respect of factory premises of M/s Royal Sales Corporation at 1/342, Gali no. 1, Friends Colony, Industrial CBI Vs. Chetan Sharma & others. Page No.: 3 of 173 :4: CBI Case No.40/11 Area, Shahdara, Delhi in order to favour the accused Chetan Sharma wherein he had reported that 32 employees were found working in the premises of M/s Royal Sales Corporation at the time of inspection. However, investigation made by CBI revealed that the said factory at that time was in the name of M/s Raj Kamal Wire Industries under the proprietorship of one Rajender Sharma. The land of the said factory premises was in the name of Shri G.K. Mishra, brother in law of Rajender Sharma and Royal Sales Corporation was never in existence there.
7. Accused M. C. Aggarwal is also stated to have submitted a false inspection report dated 12.6.2007 in respect of the property 37/575, Onkar Nagar, Tri Nagar, Delhi intended to be mortgaged with Union Bank of India as collateral security. According to his report, the property was under the possession of Smt. Raman Devi S/o Sh. Ram Kishan. However, it was revealed later that Smt. Raman Devi had already expired on 24.09.07 i.e, prior to the date of inspection.
8. It is alleged that the proposal/memorandum for approval of the competent authority for sanction of the CC limit was prepared under the guidance of the accused M.C. Aggarwal and on receiving its approval, Shri M.C. Aggarwal sanctioned the CC limit of Rs. 75 lacs in favour of M/s Royal Sales Corporation. He is, however, stated to have ignored the advice of the Grid (Regional Office) to CBI Vs. Chetan Sharma & others. Page No.: 4 of 173 :5: CBI Case No.40/11 conduct a due diligence inquiry before according the sanction.
9. It is further alleged that for the execution of the documents relating to the property No. 37/575, Onkar Nagar, which was offered as collateral security, a lady namely, Smt. Harbans Kaur w/o late Amar Singh, impersonated as Smt. Raman Devi at the instance of accused Chetan Sharma before the Union Bank of India, Sadar Bazar. The said lady executed various documents including, a declaration and two affidavits in the name of Raman Devi and submitted a sale deed in respect of the property in favour of Smt. Raman Devi which were accepted by the bank. Chetan Sharma who went along with her also executed documents like a demand promissory note, a letter of continuity, hypothecation agreement of goods and debts, letter of undertaking not to alienate the hypothecated goods, letter of guarantee etc. However, the title deed of property No.37/575, Onkar Nagar, offered as collateral security was found forged and fake and that equitable mortgage of the property was created on the said fabricated and forged title deeds. Thus, on the basis of forged documents, CC Limit of Rs.75 Lakhs was sanctioned to the accused Chetan Sharma by the accused M. C. Aggarwal.
10. It is further alleged that vide an application dated 10.10.2007, Chetan Sharma applied for enhancement of CC Limit from Rs.75 lakhs to 175 lakhs and that the CC limit was enhanced to CBI Vs. Chetan Sharma & others. Page No.: 5 of 173 :6: CBI Case No.40/11 Rs.150/ lakhs on the basis of projected false sales turn over and additional collateral security of property at 21/15, Shakti Nagar, Delhi, in the name of Smt.Pushpa Gupta. Once again, a lady who remained unidentified during investigation impersonated as Smt. Pushpa Gupta and along with the accused Chetan Sharma, executed the required documents in the bank. Harbans Kaur also accompanied Chetan Sharma and the lady impersonating Pushpa Gupta. It was later revealed that Smt. Pushpa Gupta, who was the owner of 21/15, Shakti Nagar, Delhi never executed the documents in question for creation of equitable mortgage in respect of her property and that the forged title deed of the said property was submitted by Shri Chetan Sharma for availing the enhancement of C.C. limit.
11. The property No.21/15, Shakti Nagar, Delhi is also stated to have been inspected by the accused M. C. Aggarwal, who, this time also, filed a false inspection report dated 27.10.2007, in conspiracy with the other accused persons and accused Chetan Sharma.
12. It is further alleged that accused Mazher Alam entered into conspiracy with other accused persons including accused Chetan Sharma in perpetration of fraud with Union Bank of India, Sadar Bazar, as he arranged Smt. Harbajan Kaur for impersonation as Smt. Rama Devi @ Smt. Raman Devi and also allegedly took her to the bank for signing and gave her some money. That accused Mazher Alam (since dead) took his share of Rs.4 lakhs through cheque No. CBI Vs. Chetan Sharma & others. Page No.: 6 of 173 :7: CBI Case No.40/11 30491 issued from CA No.647 of M/s Power Line Industries at The Delhi State Cooperative Bank, Nand Nagri Branch, Delhi93.
13. It is further alleged that the accused Chetan Sharma in pursuance of the criminal conspiracy alongwith other accused persons, namely, Vipin Sharma and Pawan Kumar Aggarwal, opened different current accounts in the names of different firms and both these accused persons allowed their accounts to be used for siphoning off the C.C. Limit sanctioned to M/s Royal Sales Corporation of Chetan Sharma though there was no business dealings between these firms. It is thus alleged by the CBI that the accused Chetan Sharma in criminal conspiracy with accused M. C. Aggarwal, the then Chief Manager of the bank; Vipin Sharma, Pawan Kumar Aggarwal; Mazher Alam and Smt. Harbans Kaur; obtained CC Limit of Rs.75 lakhs and got it further enhanced to Rs.150 lakhs, on the basis of forged and fake documents. That this caused wrongful gain to the accused persons and corresponding wrongful loss to the Union Bank of India (a public sector bank), Sadar Bazar, Delhi.
14. It is, thus, urged by the prosecution that the accused persons have committed the offences punishable under sections 120 B r/w 419, 420, 467, 468, 471 of Indian Penal Code and accused M.C. Aggarwal, in addition, also committed offence under section 13 (2) read with section 13 (1) (d) of Prevention of Corruption Act, 1988.
CBI Vs. Chetan Sharma & others. Page No.: 7 of 173 :8: CBI Case No.40/11
15. After hearing both, the prosecution & the defence, my ld. predecessor, finding a primafacie case against them, framed charges against the accused persons. All the four accused persons were charged under Section 120B IPC and Section 420 IPC r/w 120B IPC. Accused Chetan Sharma was additionally charged under sections 467,468 and 471 IPC r/w Section 120B IPC and also under Section 419 IPC r/w sections 120B & 420 IPC. Accused M.C. Aggarwal has also been additionally charged under Section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988 r/w sections 120B IPC and section 471 IPC r/w sections 120B and 420 IPC. They all pleaded not guilty and claimed trial.
16. To prove its case against the accused persons, the prosecution has in all examined 33 witnesses.
17. Sh. Uday Balkrishan Rairikar, who was the Sanctioning Authority and was posted as General Manager(P), Union Bank of India, Mumbai at the relevant time, has been examined as PW1. He accorded the sanction for prosecution of accused M.C. Aggarwal after going through relevant documents, report of CBI and after applying his mind. He proved the Sanction Order as PW1/A.
18. PW2 is Sh. R.L. Gupta, the then registered valuer and CBI Vs. Chetan Sharma & others. Page No.: 8 of 173 :9: CBI Case No.40/11 he was on the panel of the bank during the relevant time. He deposed that on 20/10/2007 he had visited the property no. 21/15, Shakti Nagar, Delhi for inspection/valuation but he was not allowed to do so by the occupant of that premises. He further deposed that on 01/11/2007, he received a telephone from accused M.C. Aggarwal to be present at the abovesaid premises for valuation on same day and when he reached the premises, accused M.C. Aggarwal introduced him to the occupant of the premises and he was allowed to do the inspection/valuation work. He proved his valuation report as Ex.PW2/A1 and the bill/receipt raised by him as charges of valuation as Ex.PW2/A2.
19. Sh. Brij Kishore Sharma has been examined as PW3.
He was working as banking assistant in Delhi State Cooperative Bank, Nand Nagri Branch, New Delhi during the relevant time. He has proved production cum seizure memo as Ex. PW3/A1 vide which he has handed over to CBI certain documents/cheques which have been proved as Ex. PW3/B1 to B62.
20. PW4, Sh. Bachan Singh, the then record keeper, Canara Bank, Yamuna Vihar branch, Delhi deposed that he had handed over to CBI certain cheques Ex.PW4/A1to PW4/A7 vide Sseizure Memo(D75) which has been proved as Ex.PW4/A.
21. Sh. R. S. Madan, the then Sub Register, Kashmere Gate, CBI Vs. Chetan Sharma & others. Page No.: 9 of 173 :10: CBI Case No.40/11 Delhi, has been examined as PW5. PW5 deposed that he had written letter dated 18/07/2009 Ex.PW5/A to inspector CBI in response to request regarding certified copies of two sale deeds. He proved the certified copy of one sale deed as Ex.PW5/B which he provided to CBI vide his above letter Ex. PW5/A. He further deposed that record relating to other sale deed, being for the period prior to 1980 was not with him and he sent an endorsement/letter to archive department in this regard.
22. PW6 Sh. P.K. Singh, the then Chief Manager, who was the second successor of accused M.C. Aggarwal, was posted in Sadar Bazar Branch of Union bank of India from June2008 to October 2010. He deposed that when he joined the above said branch he found that operation in the account of M/s Royal Sales corporation was much less than the required turn over and also found one letter written by accused Chetan Sharma regarding change of address of his above said Factory. The said letter has been proved as Ex. PW6/A1(in the file Ex. PW6/A). He further deposed that when he found that no inspection had been carried out, he alongwith Mr. A.R. Goel, the then Manager(Advance) jointly inspected the new premises and prepared a report which has been proved as Ex. PW6/A2. He also issued notice to Royal Sales Corporation and to his guarantors namely Ms. Pushpa Gupta and Ms. Rama Devi to explain the discrepancies. He proved the office copy of the said notice as Mark PW6/A3 and postal receipt vide which notice was sent to M/s Royal CBI Vs. Chetan Sharma & others. Page No.: 10 of 173 :11: CBI Case No.40/11 Sales Corporation, as Ex. PW6/A10. He deposed that notice sent to Ms. Rama Devi was received back as undelivered in envelope Ex.PW6/A4. However, a letter Ex.PW6/A7 was received from the advocate of Ms. Rama Devi in envelope Ex.PW6/A8. A reply Ex. PW 6/A5, was also received from Ms. Pushpa Gupta through registered letter in envelope Ex.PW6/A6. He further deposed that he reported the matter to the higher officer vide his letter, proved as Ex.PW6/A9 and matter was referred for inquiry to the vigilance of the bank and after finding of the inquiry, on direction, he filed the complaint Ex. PW6/A11 to the SP, CBI.
23. PW7, Sh. Nikhil Arora who was having business of garments in the name of M/s Monison marketing private ltd, deposed that Sh. Shashi Budhiraja has deposited an amount of Rs.8,00,000/ in the account of his company i.e M/s Clear Trade International vide a deposit slip dated 17/07/2007 of ABN Amro Bank, which has been proved as Ex. PW7/A. He further deposed that he returned the said amount to Mr. Shashi Budhiraja through two cheques of Rs. 4,65,000/ & Rs.1,29,000/ and Rs. 2,05,000/ in cash which were reflected in the said bank account. He also deposed that neither he knew any Chetan Sharma nor any M/s Royal Sales Corporation, Delhi nor he had any business dealing with them.
24. PW8 is Sh. Shyam Sunder Budhiraja, who was the empaneled advocate of the Bank during the year 2007. He deposed CBI Vs. Chetan Sharma & others. Page No.: 11 of 173 :12: CBI Case No.40/11 that he had visited the office of SubRegistrar, Kashmere Gate and Pitampura and inspected the relevant index after depositing the charges vide receipts Ex.PW8/B and Ex. PW8/C. He further deposed that accused M.C. Aggarwal had sent one Mr. Alam with accused Chetan Sharma to the SubRegistrar office to assist PW8 in inspecting the Urdu record as some of the record was in English and some in Urdu language because PW8 did not know Urdu. He also proved the opinion Ex.PW8/A(colly) and the opinion alongwith bill given by PW8 as Ex.PW8/D(colly). He further deposed that he did not notice any discrepancies in the records of the said properties.
25. Mrs. Pushpa Gupta, who was the owner of property no.
21/15, Shakti Nagar, has been examined as PW9. She deposed that in the year 1984, the said property was purchased by her husband Sh. Prem Nath Gupta in her name from Mr. Chabil Dass vide Sale Deed Ex.PW5/A. She also deposed that the documents, namely Sale Deed Ex.PW8/DX3, declaration Ex.PW9/A(D16), Affidavit Ex. PW9/B(D17) do not bear her signatures/thumb impression though her name has been written on declaration/affidavit. She further deposed that no persons by the name of R.L. Gupta, M.C. Aggarwal ever visited her property and that she neither knows the persons by the name of Sh. R.L. Gupta, M.C. Aggarwal, Chetan Sharma nor she had any transactions with M/s Royal Sales Corporation nor she visited Union Bank of India, Sadar Bazar to mortgage her property nor she executed any documents in this regard and only from IO of CBI Vs. Chetan Sharma & others. Page No.: 12 of 173 :13: CBI Case No.40/11 the case, she came to know that someone had forged the property papers and thereafter she made police complaint and filed a civil suit. She also deposed that in the year of 2001 she had taken a loan from G.S. Lamba, the financier by keeping title deed of her property and she has already repaid that loan.
26. PW10 Shri J. S. Nirala, the then junior clerk, Delhi Nagrik Sehkari Bank, Yamuna Vihar deposed that the IO of the case had seized from his bank some cheques (D73) (1 to 49), proved as Ex.PW10/B (colly) pertaining to current account no. 3360 of M/s P. K. Enterprises and cheques mentioned as D74(164) Ex.PW10/C pertaining to current account no. 2796 of M/s Excellent Enterprises vide a ProductioncumSeizure Memo, which has been proved as Ex. PW10/A.
27. PW11 Shri Ram Kishan Sharma, husband of Mrs. Rama Devi, deposed that the house no. 37/575, Tri Nagar, Delhi was in name of his wife, Mrs. Rama Devi, who has expired on 29.4.2007 and he has been living in the said house since 1962. He deposed that the said property was never valued as no valuer or official visited the said property for valuation and he did not know any person by the name of K. G. Saini or M. C. Aggarwal or Chetan Sharma. He also proved copies of death certificate of his wife as Mark PW11/A, Ration Card as Mark PW11/B, passbook of joint saving account of CBI Vs. Chetan Sharma & others. Page No.: 13 of 173 :14: CBI Case No.40/11 his & his wife as Mark PW11/C and copy of PAN Card of his wife Rama Devi as Mark PW11/D. He further deposed that the two declarations, dated 4.7.2007(D8) & dated 6.7.2007 (D9) and affidavit dated 9.7.2007(D10), which were purported to be signed and executed by Smt. Rama Devi, have not been executed by his wife Rama Devi and the signatures Ex. PW11/E to Ex. PW11/O, appearing on certain points on the aforesaid documents were not, in fact, made by his wife, as his wife had expired prior to date of execution of aforesaid documents. He also stated that the signatures appearing at point A and original photograph on the Election card No. DL /04/05/91/125632(D11), Mark PW11/P, are not the photo & signatures of his wife.
28. PW12 Mohd. Asif, who was the coowner of the property no. 519, 1/9, Sansar Compound, Dilshad Garden, Industries Area, Shahdara, Delhi, deposed that the said property was given on rent to accused Chetan Sharma & Pawan Aggarwal on a monthly rent of Rs.20,000/ vide registered Lease Deed dated 24.8.2007, which has been proved as Ex. PW 12/B.
29. PW13 Shri Rajender Sharma was a businessman and deposed that he was running business of manufacturing of copper wires in the name of Raj Kamal Wire Industries at 1/342 1E, Gali No.1, Friends Colony, Industrial Area, Shahdara, Delhi. PW13 further stated that he is running the said business at the said premises CBI Vs. Chetan Sharma & others. Page No.: 14 of 173 :15: CBI Case No.40/11 which was built by him since the year 2007. He proved the Central Excise Registration Certificate of his firm as Ex. PW 13/A; Form D VAT 06 as Ex.PW13/B and Central Sale Tax Registration & Turn Over Form as Ex. PW13/C. He deposed that his factory was never pledged or hypothecated to any bank and he neither had any business dealing with accused Chetan Sharma, who is his friend & relative nor he did know what was the business of accused Chetan Sharma but his factory was situated at a distance of about 200300 meters away from his factory.
30. Shri Subhash Garg Advocate, who was on the panel of Union Bank of India at the relevant time, appeared as PW14. He has inspected/verified the photocopies of the sale deeds of two properties with the record of Sub Registrar. He deposed that he had examined the photocopy of the sale deed no. 707 dated 22.01.63 provided by the Union Bank of India, Sadar Bazar branch with the certified copy obtained from the Sub Registrar pertaining to the property No.9 Onkar Nagar Extension, Mubarkabad, Delhi and found various discrepancies in both the copies. He proved his report as Ex. PW 14/A; Receipt against inspection duly issued by Sub Registrar Office as Ex. PW14/B. He further deposed that he had also examined the photocopy of the sale deed no. 3955 dated 24.05.71& 22.5.1984 of property No.21/15, Shakti Nagar and on scrutiny, found various discrepancies in both the copies. He proved his report in this regard CBI Vs. Chetan Sharma & others. Page No.: 15 of 173 :16: CBI Case No.40/11 as Ex. PW14/C and Receipt against inspection duly issued by Sub Registrar Office as Ex. PW14/D (collectively). He has also proved the bill, given by him to the bank with regard to said inspection report, as Ex. PW14/E (collectively) and the certified copies of the properties obtained from the concerned Sub Registrar Office as Ex. PW14/F(colly), Ex. PW 14/G(colly) & Ex. PW14/H (colly).
31. Shri B. S. Bhartwal, the then Accountant, Union Bank of India, Sadar Bazar, stepped in the witness box as PW15. He has verified the signatures and particulars of introducer, Shri Prem Nath Khanna, Proprietor of Sonata Impax, on the Account Opening Form Ex. PW15/A of current account No. 307501010133597 in the name of Royal Sales Corporation, 1/342, Friends Colony, Industrial Area, Sadh Nagar. He has deposed that opening of said account was authorised by the accused, Mr. M. C. Aggarwal, the then Chief Manager.
32. Shri Gurmeet Singh Lamba, who has been examined as PW16, has purchased the property No. 21/25 Shakti Nagar, Delhi from Smt. Pushpa Gupta, vide requisite documents and has supplied the copies of documents (Mark PW16/B) of the said property to the CBI vide letter Ex. PW16/A. He deposed that he paid the consideration amount of Rs.3 lakh through cheque no. 177935 dated 12.01.2001 drawn on City Bank and he had neither come across CBI Vs. Chetan Sharma & others. Page No.: 16 of 173 :17: CBI Case No.40/11 accused Chetan Sharma, Mazhar Alam or Royal Sales Corporation nor mortgaged for pledged the above said property to any bank or financial institution.
33. Shri Ram Dev Yadav, Officer of the Delhi State Co operative Bank, Nand Nagri Branch was examined as PW 17. He has opened the account of accused Pawan Kumar after verifying the signatures and particulars of introducer, Shri Sanjeev Kumar vide Account Opening Form, Ex.PW17/A. He has also deposed that alongwith the A/c Opening Form accused Pawan Kumar also submitted various documents like copy of PAN Card, Form 60, Ration Card & affidavit, Ex. PW17/B(colly). He also proved the Statement of Account No. 647 as Ex. PW 17/C and individual statement of account from 1.6.2007 to 4.3.2009 of A/c no. 647 as Ex. PW17/D and 15 cheques slips as Ex.PW 17/E(Colly).
34. PW18 Shri Sanjeev Kumar has introduced to the account of accused Pawan Kumar in Delhi State Cooperative Bank, Nand Nagri Branch and has proved his signature and photograph of accused Pawan Kumar on Ex. PW17/A.
35. Shri Gautam Kampani, the then officer of UBI Service Branch, Sadar Bazar, was examined as PW19. He has passed/cleared the cheques of the said branch after verifying the signatures of the CBI Vs. Chetan Sharma & others. Page No.: 17 of 173 :18: CBI Case No.40/11 account holders. He deposed that cheques (1 to 50), Ex.PW19/A collectively(D27) were handed over to CBI and proved the signatures of accused Chetan Sharma of Royal Sales Corporation and his signatures on the cheques mentioned in the list Ex. PW19/B. He deposed that the said cheques were passed and corresponding amount of the same was debited in the current account of the party.
36. Shri Krishan Gopal Saini, who was the empaneled approved valuer and architect of the Union Bank of India, entered into witness box as PW20 and deposed that at the asking of the then Branch Manager, Mr. Aggarwal, he had visited and evaluated the property i.e. plot no. 9 Gali No. 37, Onkar Nagar, Delhi 35, where he met one Sharma and one lady stated to be his wife. He inspected the property at the instance of Mr. Sharma and prepared his report, Ex. PW 20/A.
37. PW 21 Devender Nath Sharma, the then official of the UBI Sadar Banzar Branch, Delhi, proved various documents relating to the file of Royal Sales Corporation, maintained at the branch during the relevant time. He proved the application dated 15.6.2007 (at page 155 of the said file Ex.PW6/A) addressed to Chief Manager, UBI, for sanction of CC Limit of Rs.1 crore as Ex. PW 21/A; inspection report (at page 153154 of the said file Ex. PW 6/A) in the handwriting of accused M. C. Aggarwal, the then Chief Manager, CBI Vs. Chetan Sharma & others. Page No.: 18 of 173 :19: CBI Case No.40/11 UBI as Ex. PW 21/B; the valuation report dated 17.6.2007 (at page 148152 of the file Ex. PW 6/A) of K. G. Saini in respect of property No.9, Onkar Nagar, Gali No. 37, Delhi 35, duly inspected by accused M. C. Aggarwal as Ex. PW 21/C; Memorandum of Approval of funds, which was sanctioned for CC Limits of Rs.75 lakhs by the accused M. C. Aggarwal as Ex.PW21/D(colly), Credit Approval from the Grid Regional Office as Ex.PW 21/E, Site Visit Report as Ex.PW21/F, Site Visit report of Tri Nagar Property (D19) which is in the handwriting of accused M. C. Aggarwal and bears his signatures at point A as Ex.PW21/G and the letter dated 18.7.2008 written to Chief Manager, UBI Sadar Bazar as Ex. PW 21/H(D20).
38. PW 22 Shri Vinod Kumar Gupta was also an official of UBI, Sadar Bazar, Delhi during the relevant time. He deposed that accused Chetan Sharma preferred application for loan to Advance Incharge. The said application alongwith supporting documents has been proved as Ex.PW22/A. Thereafter, the property was valued and searched vide Valuation Report (Ex.PW21/C) and a proposal (Ex.PW21/D) was prepared by him and Mr. Handa and a limit of Rs.75 lakhs was sanctioned by accused M. C. Aggarwal vide his endorsement. He further deposed that subsequently sanction advice was communicated to accused Chetan Sharma vide Ex.PW6/Dx and inspection dated 1.7.2007 Ex. PW 22/C regarding the securities, was prepared by accused M. C. Aggarwal and Sanction Advice Ex.PW22/B was prepared by Mr. J.B. Handa. He CBI Vs. Chetan Sharma & others. Page No.: 19 of 173 :20: CBI Case No.40/11 further deposed that subsequently an application for enhancement of the limit, which has been proved as Ex.PW 22/D, under the signatures of accused Chetan Sharma was received in the bank and a sanction advice Ex.PW22/E was prepared by Shri J. B. Handa vide which accused M. C. Aggarwal enhanced the CC limit to Rs.150 lakhs. He further deposed that a Credit Process Audit dated 4.7.2007 Ex.PW22/F was signed by accused M. C. Aggarwal, vide which equitable mortgage Ex.PW22/G was created on which an endorsement Ex.PW22/H was made by the accused M. C. Aggarwal. PW 22 also deposed that he has also inspected the property No.21/15, Shakti Nagar alongwith PW21 Shri D. N. Sharma and during his inspection, Smt. Pushpa Gupta was not found present. PW22 has also identified the signatures of accused Chetan Sharma at points A on the document(D22, page 131) relating to CC Limit of Rs.75 lakhs and on the document(D23 page 147) relating to CC limit of Rs.150 lakhs. He deposed that the aforesaid loans were not paid and the loan was declared Non Productive Assets(NPA).
39. Shri Jang Bahadur Handa, who was Manager(Advances), Union Bank of India, Sadar Bazar, Delhi during the relevant time, has been examined as PW 23. He deposed that accused M. C. Aggarwal, who was Chief Manager and Head of the said Branch, used to assign the duties of all the bank officials. He deposed that whenever any proposal/application for loan is submitted in the bank, usually it is first received by the Chief CBI Vs. Chetan Sharma & others. Page No.: 20 of 173 :21: CBI Case No.40/11 Manager who used to check the validity of the proposal and financial data and in this case, accused M.C. Aggarwal has given the application/proposal for loan Ex.PW21/A to Mr. V. K. Gupta, the then Processing Officer and before handing over the aforesaid loan application, accused M. C. Aggarwal conducted inspection and a report thereof was prepared and Valuation Report of the said property was also got prepared by the accused M. C. Aggarwal from the approved valuer Shri K. G. Saini and accused M. C. Aggarwal also made an endorsement at point C on Valuation Report that he had visited the property and was satisfied with the reasonable value of the property. He further deposed that under the guidance of accused M. C. Aggarwal, Shri V. K. Gupta typed the Proposal Ex. PW21/D and thereafter, the accused M. C. Aggarwal after verification sent the said proposal to the Grid Regional Office, New Delhi and after getting approval from Grid, limit of Rs.75 lakhs was sanctioned on 4.7.2007 by accused M. C. Aggarwal being Chief Manager. He further deposed that sanction advise about sanctioning of the loan was communicated to M/s Royal Sales Corporation vide letter Ex. PW23/A on which PW23 identified the signatures of accused M. C. Aggarwal at point A and thereafter, on calling the party for documents & equitable mortgage of property, accused Chetan Sharma & Mrs. Rama Devi owner of the property, visited the Chief Manager, who sent them to PW23 for completion of documentation. He further deposed that DP Note dated 04.07.2007 (D22, page 1 to
30) Ex.PW23/B of Rs.75 lakhs was signed by accused Chetan CBI Vs. Chetan Sharma & others. Page No.: 21 of 173 :22: CBI Case No.40/11 Sharma and property owner Rama Devi at point A and Smt. Rama Devi also submitted a Sale Deed in her name Ex. PW8/DX1. He further deposed that besides other documents, photocopies of No Dues Certificate from MCD, copy of ration card, house tax(D11, page 18), Ex. PW23/C (colly) were signed and submitted before PW23 J. B. Handa by Smt. Rama Devi(Raman Devi) alongwith accused Chetan Sharma, who was also present there. He further deposed that since there was difference of name of property owner, second advice was called from other approved bank advocate, Smt. Rashmi Srivastava, who after verification, submitted her report Ex. PW23/D and a notice in this regard was also published in daily newspaper 'Statesmen' and he proved receipt of publication as Ex.PW23/E and said newspaper publication as Ex. PW23/F. PW23 identified the public notice dated 09.07.2007 Ex.PW23/G, given by Budhi Raja and election I Card of accused Chetan Sharma as Ex. PW23/H, ration Card and electricity bill in the name of Rama Devi and House Tax (No dues certificate) as Ex. PW23/I. PW23 Shri J. B. Handa deposed that Credit Process Audit dated 11.07.2007 was sent to Shri H. K. Gogia, Officer of the Bank and the reply dated 18.7.07 Ex. PW23/J was received by Shri H. K. Gogia, whose signatures have been duly identified PW23. He further deposed that he filed and signed the Compliance Certificate dated 11.7.2007 Ex.PW23/K at point A and signed by accused M. C. Aggarwal at point B. PW23 stated that application dated 10.10.2007 CBI Vs. Chetan Sharma & others. Page No.: 22 of 173 :23: CBI Case No.40/11 Ex.PW22/D(colly) was received from accused Chetan Sharma for enhancement of CC Limit & Chetan Sharma had mentioned to offer additional property as mortgage. The property was inspected for the purpose of assessing valuation & report Ex.PW2/A2 was submitted by Shri R. L. Gupta and Shri M. C. Aggarwal had also visited the property and attested the valuation. He further stated that sanction of CC Limit was enhanced vide Ex.PW22/E(colly). He further stated that thereafter and Chetan Sharma came with one lady Smt. Pushpa Gupta and submitted Sale Deed Ex.DX2(D12) & Smt. Pushpa Gupta signed declaration Ex.PW9/A & application Ex.PW9/B. He deposed that alongwith other documents, Building Plan, Ex.PW23/L(D21), of the property No.21/15, Shakti Nagar, Delhi was also filed and D P notes, Ex. PW23/M(colly) & Ex. PW 23/N (colly) are related to demand proceedings of Rs.150 lakhs and Rs.75 lakhs. He further deposed that Shri V. K. Gupta, the then Assistant Manager, UBI, Delhi handed over the various documents to CBI vide Seizure Memo Ex.PW23/O and he also identified the signatures of accused Chetan Sharma at point A and his photoprint at point B on the documents Ex.PW23/P and Ex.PW23/Q. He has further identified the signatures of accused Chetan Sharma at point A on three cheques(D47) Ex.PW23/R, Ex.PW23/S & Ex.PW23/T and at point A on documents relating to statement of Stock position with regard to M/s Royal Sales Corporation at point A, contained in the file, Ex. PW23/U. He has further deposed that on 4.7.2007 he made CBI Vs. Chetan Sharma & others. Page No.: 23 of 173 :24: CBI Case No.40/11 the entries of the details of the property deeds mortgaged by Raman Devi(Rama Devi) relating to the plot No.9, Onkar Nagar Extension, Tri Nagar, Delhi at page 22 Ex.PW23/V(true copy) of the register maintained at the bank for keeping the entries relating to title deeds submitted by borrowers and on 06.11.2007 also, he made entries at page 38 Ex.PW23/XA of the aforesaid register relating to documents of mortgaged properties submitted by Smt. Pushpa Gupta and original memorandums of deposit of title deeds are Ex.PW23/W & Ex.PW23/XB duly filled by V. K. Gupta was pasted on the same page of the said register.
40. PW 24 Shri Mukesh Goel deposed that in the year 2008 accused Chetan Sharma was having shares account with him and he introduced accused Chetan Sharma at the time of opening of his account with Canara Bank, Yamuna Vihar Branch and he identified his signatures at point A with rubber stamp and the photograph of accused Chetan Sharma at point B affixed on the Account Opening Form Ex. PW24/A(D37). He further deposed that he received the cheque Ex.PW24/B[D73(47)] from accused Chetan Sharma, which he deposited in his account of 'Share Systems. He also deposed that probably one more cheque of Rs.Five lakh was also received by him from accused Chetan Sharma, which was also encashed in the said account. He also deposed that both the aforesaid cheques were given to him by accused Chetan Sharma for trading in the shares and there CBI Vs. Chetan Sharma & others. Page No.: 24 of 173 :25: CBI Case No.40/11 was no other transaction besides that with the accused Chetan Sharma.
41. Shri Ashok Kumar Mittal, who was Sr. Manager(Loan & Advance) in Regional Office, Shalimar Bagh, Union Bank of India(UBI) during the 20072010, appeared in the witness box as PW25 and during his testimony, he deposed that he had handed over to CBI a Circular No.7349 dated 01.04.2006 Ex.PW25/A(colly), containing rules, guidelines, etc. relating to loan policy for the year 20062007, which was circulated to all branches/offices of UBI by Head Office. He further deposed about the procedure to be followed for sanction of Cash Credit Limit(Loan) is that for the purpose of sanction of Cash Credit Limit(Loan), the party is required to submit an application alongwith the business profile, borrower's profile and operations of business, besides sources of procurement of raw material and marking arrangements and on having been satisfied, the Chief Manager makes market inquiry about the applicant/party independently and if the report is 'OK', he can ask for the security to be offered by the party and thereafter he verifies the security offered by the party by way of his personal visit and inspection of the property and thereafter, valuation & search report are obtained from advocate of the bank panel and after making assessment, he can sanction the CC Limit and in case CC Limit is above Rs.50 lakhs, approval from the Grid is essential. He deposed that prior to the application, inspection could not be made by the Chief Manager or by CBI Vs. Chetan Sharma & others. Page No.: 25 of 173 :26: CBI Case No.40/11 any other person of the bank. After going through all the documents Ex.PW6/A(D25), Ex.PW20/A, Ex.PW21/A, Ex.PW21/D, Ex.PW20/B, he further deposed that according to Bank Norms and Rules, within such a short period, the sanction of enhancement is not correct. He further deposed that if the inspection is not done by the technical person, Chief Manager is required to carry out that inspection.
42. PW26 Shri Raj Pal was working as cheque passing authority in The Delhi State Cooperative Bank, Nand Nagri Branch, Delhi during the year 2007. He has identified the photograph of accused Pawan Kumar at point A on the Account Opening Form(D33) Ex. PW17/A in respect of the firm, M/s Powerline Industry, under the Proprietorship of accused Pawan Kumar. He deposed that the cheques Ex. PW3/B1 to PW3/B62(D71) were issued by accused Pawan Kumar under his signatures at point B on each cheque and PW26 passed all the aforesaid cheques(except Ex. PW3/B1), which were encashed as per endorsement i.e. 'self' or in favour of firm indicated therein & cheque Ex. PW3/B1 was passed by Shri Man Mohan.
43. PW27 Ms. Shalni Gupta is daughter of Smt. Pushpa Gupta. She deposed that two persons, Shri R. L. Gupta, Valuer and Shri M. C. Gupta, the Chief Manager of UBI never visited her house in the year 2007. She further deposed that the photos as shown in CBI Vs. Chetan Sharma & others. Page No.: 26 of 173 :27: CBI Case No.40/11 the documents (Ex. PW27/A) viz Election Voter Card(D20), one on the photocopy of Election Card & other photo of an old lady on which in Hindi "Pushpa Gupta" is written, are not the photographs of her mother Smt. Pushpa Gupta. She further deposed that her mother was/is the owner of the property No. 21/15, Shakti Nagar, Delhi, where she was still residing and she did not have any concern, connection and even knowledge about the lady whose photographs were shown in the documents.
44. Ms. Manju Khanna, who is daughter of Harbans Kaur, has been examined by CBI as PW28. She deposed that her mother Smt. Harbans Kaur used to reside at Lal Quarter but she did not have any permanent residence and she had an elder sister, namely Anju, who has expired. She identified the photo of her mother Smt. Harbans Kaur at point A and that of her sister Anju at point B on the photograph Ex.PW28/A. She also identified the photo of her sister Anju at point B on the photograph Ex.PW28/B. She also deposed that her mother is missing for the last 1012 years and her whereabouts are not known.
45. PW29 Shri S. N. Ashraf of M/s Shalimar Enterprises, which is a partnership concern and is located at Patna ByePass Road, Anishabad, Patna2, deposed that journal voucher dated 21.6.2008 Ex.PW29/A was prepared and signed by Mohd. Mujahid, Accountant of the firm at point A, which is authenticated by PW29 CBI Vs. Chetan Sharma & others. Page No.: 27 of 173 :28: CBI Case No.40/11 at point B. He also identified the signatures of his son Syed Minhaz at point A on certified copy of ledger, journal, Ex.PW29/B and signature of Mohd. Mujahid at point A on journal voucher dated 21.1.2008 Ex.PW29/C; on the documents(Ex.PW29/D) vizcertified copy of journal voucher, certified copy of journal book, statement of account, certified copy of journal voucher, certified copy of journal book and also on original journal voucher dated 16.1.2008, Ex.PW29/E. He also deposed that his son, Minhaz Ashraf handed over various documents to CBI vide seizure memo Ex.29/F(D77) as well as vide letter dated 9.6.2010(D81), Ex.PW29/G(D81). He further deposed that Mohd. Kammrudin, the authorized signatory of his firm, signed the cheque dated 12.7.2008 Ex.PW29/H for Rs.3,75,000/, in favour of Jai Maa Trading company of accused Mazhar Alam. PW29 further deposed that deposit voucher dated 2.7.2008 of PNB is in writing of Shri Minhaz Ashraf & signed by him and the said voucher is Ex.PW29/I and three cheques No.751611 to 751613 Ex.PW29/J1 to Ex. PW29/J3 dated 10.1.2008 amounting to Rs.3,40,000/ Rs.3,30,000/ & Rs.3,30,000 were deposited by accused Mazher Alam through Union Bank of India, Sadar Bazar, Delhi in the account of M/s Shalimar Enterprises.
46. PW30 Shri Santosh Kumar Singh, who was posted as ASI in EOUII branch, CBI, Delhi during March, 2010, deposed that under the direction of his SP, he conducted the enquiry about CBI Vs. Chetan Sharma & others. Page No.: 28 of 173 :29: CBI Case No.40/11 whereabouts of Smt. Harbans Kaur, by visiting the residence of Smt. Harbans Kaur and prepared his report Ex. PW30/A and handed over the same to the IO.
47. PW31 Shri Prem Nath deposed that he did not know any person namely, Chetan Sharma or Mazhar Alam or the firm M/s Royal Sales Corporation and he never had any account in Union Bank of India, Sadar Bazar, Delhi. He also deposed that the documents, Ex.PW31/1 to Ex.PW31/7 neither bear his signatures at point A nor his photograph at point B and during the course of investigation he had given copy of his election I card and PAN Card which are Ex. PW31/8. He further deposed that the signatures in Hindi in the column of introducer in the account opening form Ex.PW15/A(D54) relating to M/s Royal Sales Corporation, are not his signatures.
48. PW32 Shri Ramesh Prasad, who was Officer, Canara Bank, Gyandeep Vidyabhawan, Yamuna Vihar, Delhi during 2007 2008, deposed that alongwith the account opening form Ex.PW24/A customer Chetan Sharma filed copies of certain documents Ex.PW32/A(colly)(D37) and he has certified the Statement of Account(D38) Ex. PW32/B. He further deposed that he has passed 19 cheques Ex.PW4/A1 to Ex.PW4/A19(D76).
49. PW33 Shri Ajeet Singh, who is the IO of the case, CBI Vs. Chetan Sharma & others. Page No.: 29 of 173 :30: CBI Case No.40/11 deposed that FIR(D2), Ex. PW33/A, bears the signatures of his SP at point A and he was entrusted the investigation of this case. He further deposed that during investigation vide Memo, Ex.PW33/B 1(D24), he seized several documents including Statement of Account(D26) Ex.PW33/B2(colly) from Vinod Kumar Gupta, Asstt. Manager, Union Bank of India. He further deposed that vide Memo Ex.PW33/B3(D48), he seized some documents including document(D49) Ex.PW33/B4(colly), Statement of Account(D50) Ex.PW33/B5(colly) from Sher Singh, Bank of India. He stated that vide seizure memo Ex.PW33/B6(D55) he seized documents i.e. Account Opening Form Ex.PW33/B7(colly) & Statement of Account Ex.PW33/B8(colly) and vide seizure memo Ex.PW33/B 9(D55) he seized various cheques and credit vouchers(D59) which are Ex.PW33/B10(colly) from Ramesh Prasad, Manager Canara Bank and vide Seizure Memo Ex.PW33/B11 he seized credit slips Ex.PW33/B12(colly) from Raj Pal, Delhi State Cooperative Bank. PW33 sent a notice(D86) Ex.PW33/B13 to M/s Singhal & Company Chartered Accountants to verify the fact that under whose signatures the balance sheets for M/s Royal Sales Corporation was submitted by accused Chetan Sharma to Union Bank of India, Sadar Bazar and he received a report Ex.PW33/B14 on the back of Ex.PW33/B13 to the effect that there was no such firm at the said address. PW33 also received the letter dated 31.3.2015(D88) Ex.PW33/B15 from the office of Commissioner of Industries.
CBI Vs. Chetan Sharma & others. Page No.: 30 of 173 :31: CBI Case No.40/11
50. PW33 further deposed that he received the letter alongwith several documents Ex.PW33/B16(D89) and another letter alongwith its enclosures Ex.PW33/B18(D93) from Union Bank of India and a letter alongwith its enclosures(D90) Ex.PW33/B17 (colly) from Canara Bank, Yamuna Vihar. PW33 further deposed that he seized certain documents Ex.PW33/B19 vide seizure memo dated 17.3.2009(D28) from DSCB, Ghaunda Branch, Delhi; documents Ex.PW33/B20 vide seizure memo dated 17.3.2009(D32) from DSCB, Nand Nagri Branch, Delhi; the documents Ex.PW33/B 21 vide seizure memo dated 17.3.2009(D36) from Canara Bank, Yamuna Vihar Branch, Delhi; the documents Ex.PW33/B22 vide seizure memo dated 18.3.2009(D40) from DNSB Ltd. Yamuna Vihar, Delhi; the documents Ex.PW33/B23 vide seizure memo dated 27.3.2009(D46) from DSCB, Ghaunda Branch, Delhi. He also seized the documents Ex.PW33/B24, Ex.PW33/B25 & Ex.PW33/B26 vide seizure memos dated 21.8.2009(D51), 17.2.2010(D53) & 24.4.2010(D62) from UBI, Sadar Bazar Branch, Delhi. PW33 further deposed that he also seized certain documents Ex.PW33/B27 & Ex.PW33/B28 vide seizure memos dated 26.4.2010(D64) & 27.4.2010(D67) from DNSB, Yamuna Vihar, Delhi and from DSCB, Ghaunda Branch. PW33 further deposed that he received certain documents vide letter dated 2.3.2009 Ex. PW33/B29(D82) from ABN Amro Bank and also seized the attested CBI Vs. Chetan Sharma & others. Page No.: 31 of 173 :32: CBI Case No.40/11 true copy of Statement of Account of M/s Rajshree Corporation, Yamuna Vihar(D30) Ex.PW33/B30 and payment voucher dated 9.4.2008 for Rs.3 lakhs Ex.PW33/B31 and certain documents vide seizure memo dated 29.3.2010(D78) Ex.PW33/B32 from J & K Bank, Patna and vide seizure memo dated 30.3.2010(D79) Ex.PW33/B33 from PNB, Patna. PW33 further received a letter from J & K Bank alongwith enclosures(D80) Ex.PW33/B34 and seized 9 cheques[D63(19)] Ex.PW33/B35, two credit vouchers [D65(1) &(2)] Ex.PW33/B36, 7 cheques{D66(1)(7)}Ex. PW33/B 37, credit vouchers{(D68)(1)(5)} Ex.PW33/B38. He further deposed that he seized cheques{D69(110)} Ex.PW33/B39 from Delhi State Cooperative Bank Ltd.
51. After closure of prosecution evidence, statements of accused persons under section 313 Cr.PC were recorded in which accused persons denied allegations against them.
52. In support of their defence evidence, the accused persons have in all examined 2 witnesses.
53. The accused Chetan Sharma in order to disprove the case of prosecution and in support of his defence, examined Shri Avtar Singh, LDC from the office of Sub RegistrarIV, Seelampur, DC Office, Nand Nagri as DW1, who has brought the Register of Sale CBI Vs. Chetan Sharma & others. Page No.: 32 of 173 :33: CBI Case No.40/11 Deed Containing the Sale Deed documents registered vide Registration No.3851, Book No.1 Vol.No.3547 at pages 138 to 141 registered in the office of Sub RegistrarIV, Seelampur, Delhi and photocopy of the said Sale Deed has been proved as Ex.DW1/A.
54. Accused M. C. Aggarwal in his defence has examined Shri Ram Singh, Chief Manager, Union Bank of India, Sadar Bazar, Delhi as DW2, who has brought the record in respect of opening of current account of M/s Royal Sales Corporation and the certified copy of the same has been proved as Ex.DW2/A. He has also proved the certified copies of pages of 13.1 to 13.38 of Book of Instructions, Volume III, Annexures, AnnexureI of Union Bank of India as Ex.DW2/B and attested copies of print out of Instruction Circular No.7567 dated 02.01.2007 taken from the website of Union Bank of India as Ex.DW2/C and certificate/affidavit for compliance with the conditions laid down in Section 65(A) & 65 (B) of the Evidence Act as Ex.DW2/D.
55. I have heard Ld. Counsels for accused persons and Ld. PP for CBI and carefully perused the record.
56. The present case was registered on the basis of complaint dated 16.01.2009 of Shri P. K. Singh, Chief Manager, Union Bank of India Sadar Bazar Branch, Delhi, who appeared in witness box as CBI Vs. Chetan Sharma & others. Page No.: 33 of 173 :34: CBI Case No.40/11 PW6 and proved complaint dated 16.01.2009 as Ex. PW6/A11 [wrongly mentioned as Ex. PW6/A12 on the complaint dated 16.01.2009 (D1)].
57. As per allegations of the prosecution, the sequence of events started with opening of Current Account No. 307501010133597 on 05.06.2007 in Union Bank of India, Sadar Bazar, New Delhi, in the name of M/s Royal Sales Corporation, 1/342 Gali No.1, Friends Colony, Industrial Area, Shahdara, New Delhi95 by accused No.1 Chetan Sharma as Proprietor of the same which was shown to be introduced by Shri Prem Nath Khanna, Proprietor of M/s Sonata Impex having account No.307501010133577 and opening of the said account was authorised by accused M.C. Aggarwal(A4). The allegations of the prosecution are that Shri Prem Nath Khanna had not introduced Shri Chetan Sharma, Proprietor of M/s Royal Sales Corporation for opening of account in Union Bank of India, Sadar Bazar Branch and opening of the said current account was wrongly authorized by accused M. C. Aggarwal(A4).
58. The prosecution examined Shri B. S. Bartwal, who was posted as Accountant in Union Bank of India, Sadar Bazar during the period 2005 to 2009, as PW15. PW15 stated in his examinationin chief that the Account Opening Form of Current Account No.307501010133597 in the name of M/s Royal Sales Corporation is CBI Vs. Chetan Sharma & others. Page No.: 34 of 173 :35: CBI Case No.40/11 Ex. PW15/A(D54) and the said account was introduced by Shri Prem Nath Khanna, Proprietor of M/s Sonata Impex having account No.307501010133577 and he verified the signature and particulars of the introducer and affixed his signatures at point A on the said Account Opening Form Ex. PW15/A and opening of the account was authorized by Shri M. C. Aggarwal, the then Chief Manager and PW15 identified signatures of Shri M. C. Aggarwal on Account Opening Form Ex. PW15/A, at point B.
59. In the statement recorded under section 313 Cr.PC, accused Chetan Sharma admitted opening of current account No. 307501010133597 by him in the name of M/s Royal Sales Corporation but stated that he does not know any person by the name of Prem Nath Khanna of Sonata Impex having account No.307501010133577. In his statement under section 313 Cr. PC, accused Chetan Sharma further stated that the account opening form, Ex. PW15/A was got signed from him by the official, namely, Shri J. B. Handa of Union Bank of India, Sadar Bazar, Delhi on the ground that they will process the form as per their procedure and further proceedings for opening of account were conducted by them.
60. Accused M. C. Aggarwal stated in the statement under section 313 Cr.PC that he had no role in the opening of account no. 307501010133597 in the name of M/s Royal Sales Corporation as per Book of Instruction, Volume III, Annexures. Accused M. C. CBI Vs. Chetan Sharma & others. Page No.: 35 of 173 :36: CBI Case No.40/11 Aggarwal further stated in the statement under section 313 Cr.PC that this was the duty of the Officer Incharge, Current Account Department and Accountant of the Sadar Bazar Branch was the Incharge of Current Account Department. Accused M. C. Aggarwal was put question in the statement under section 313 Cr.PC regarding deposition of PW15 Shri B. S. Bartwal, wherein he had stated about authorization by him(M. C. Aggarwal) of opening of Account No. 307501010133597 to which M. C. Aggarwal answered by stating that it is a matter of record and further stated that a party intending to open a current account approaches Accountant with all necessary documents and Account Opening Form and the Accountant after verifying all the documents and signatures of introducer, instructs Current Account Officer to open the account in Computer and Accountant thereafter, verifies the account details entered in the computer by the officer. Accused M. C. Aggarwal further stated in the statement under section 313 Cr.PC that after verification of genuineness of the person/firm and their requisite documents by the accountant and Current Account Officer, the Branch Manager puts his signatures on the Account Opening Form and authorises the opening of the account and being Branch Manager, he (M. C. Aggarwal) authorized opening of account as per norms and procedure of the bank.
61. The contention of Ld. PP, CBI is that the signatures of Shri Prem Nath Khanna as introducer on the Account Opening Form CBI Vs. Chetan Sharma & others. Page No.: 36 of 173 :37: CBI Case No.40/11 Ex. PW15/A, were forged by accused M. C. Aggarwal in connivance with accused Chetan Sharma in order to facilitate opening of current account in the name of M/s Royal Sales Corporation as it is the accused M. C. Aggarwal who as Chief Manager of the Bank, was in possession of the details of all the customers of the bank and their Specimen Signature Cards and PW15 has stated in his cross examination that accused M. C. Aggarwal himself came with authorization to open the account and accused M. C. Aggarwal was the superior officer hence, the subordinate officials in the bank were bound to follow the instructions of accused M. C. Aggarwal.
62. The plea as raised by accused Chetan Sharma is that the signatures of Sh. Prem Nath Khanna as introducer on his account opening form were arranged by bank officials. On the other hand accused M. C. Aggarwal has pleaded that he followed the norms of the bank in opening the account of M/s Royal Sales Corporation.
63. As per evidence on record, it has been proved that accused Chetan Sharma representing as Proprietor of M/s Royal Sales Corporation, opened current account no. 307501010133597 on 05.06.2007 in Union Bank of India, Sadar Bazar, Delhi and the said account was authorized to be opened by accused M. C. Aggarwal, the then Chief Manager of the said bank. However, regarding the introducer Shri Prem Nath Khanna, Proprietor of M/s Sonata Impex having account No.307501010133577, accused Chetan Sharma has CBI Vs. Chetan Sharma & others. Page No.: 37 of 173 :38: CBI Case No.40/11 pleaded that the said introducer was not taken by him and the bank officials of their own have inserted the said introducer.
64. Shri Prem Nath Khanna, appeared in the witness box as PW31 and he stated in his examination in chief that he is owner of house no.142, Bhera Enclave, Pashchim Vihar, New Delhi and he does not know any person by the name of Chetan Sharma and he also does not know anything about M/s Royal Sales Corporation and he never had any account in Union Bank of India, Sadar Bazar, Delhi and the Account Opening Form Ex.PW15/A(D54) is not signed by him in the column meant for introducer. PW31 Shri Prem Nath Khanna was shown account opening form dated 05.05.2007 of account no.307501010133577, Union Bank of India, Sadar Bazar, Delhi in the name of M/s Sonata Impex, 142, Bhera Enclave, Pashchim Vihar, Delhi and documents appended alongwith the said Account Opening Form i.e. copy of PAN Card and Copy of election Identity Card and PW31 stated in the crossexamination that said account opening form of account no.307501010133577 of M/s Sonata Impex Ex. PW31/1 to Ex. PW31/7 (Part of D89) does not bear his signatures at the place of signature of applicant on the said Account Opening Form and the photograph as appearing on the Account Opening Form of account No.307501010133577 at point B is also not his photograph. PW 31 further stated in his cross examination and that copies of the PAN Card & Election Identity card appended alongwith the account opening form of account No. CBI Vs. Chetan Sharma & others. Page No.: 38 of 173 :39: CBI Case No.40/11 307501010133577 of M/s Sonata Impex do not bear his signatures and the photographs appearing on the same are also not his photographs. It is to be noted that Account No. 307501010133577 in the name of M/s Sonata Impex has been opened in a fictitious name on the basis of forged documents and the said account has been used as the introducer to facilitate opening of account No.307501010133597 in the name of M/s Royal Sales Corporation. All the accused persons did not prefer to put any question to PW31 in the cross examination and the testimony of the PW31 has remained unrebutted.
65. PW15 Shri B. S. Bartwal stated in cross examination that he was not responsible for opening of account no. 307501010133597 of M/s Royal Sales Corporation as the same was authorized to be opened by Branch Head accused M. C. Aggarwal and accused M. C. Aggarwal himself came with authorization to open the account and he did not pay much attention. Accused M. C. Aggarwal has pleaded that it is the Accountant who after verification of the documents instructs Current Account Officer to open the account in the computer and after verification of the person/firm and requisite documents by the Accountant and the Current Account Officer, the Branch Manager puts his signatures on account opening form thereby authorizing opening of account. Perusal of Account Opening Form of account No.307501010133597 of M/s Royal Sales Corporation Ex.PW15/A(D54) shows that the column pertaining to name & CBI Vs. Chetan Sharma & others. Page No.: 39 of 173 :40: CBI Case No.40/11 signatures of the officer by whom the account is opened is left blank and the column bearing the name and signatures of officer authorizing opening of the account is signed by accused M. C. Aggarwal, which clearly shows that the process of opening account as pleaded by accused M. C. Aggarwal, was not followed in opening Account No.307501010133597 and accused M.C. Aggarwal in conspiracy with accused Chetan Sharma, authorized opening of account of M/s Royal Sales Corporation by forging signatures of Sh. Prem Nath Khanna as introducer and without following due process and thereby facilitated accused Chetan Sharma in having access to Union Bank of India, Sadar Bazar, Delhi as an account holder. At this stage, when account opening form of Account No.307501010133597 of M/s Royal Sales Corporation, Ex. PW15/A was being scrutinized it was noted that Account Opening Form of Account No.307501010133577 of M/s Sonata Impex Ex. PW31/1 to Ex. PW31/7 bears the signatures of same officer in the columns meant for name and signatures of officer opening the account and the officer authorizing opening of the account and the said signatures are similar to the signatures of accused M. C. Aggarwal as appearing at point B (as Officer authorizing opening of account) on Account Opening Form of Account No.307501010133597 of M/s Royal Sales Corporation Ex. PW15/A.
66. PW33/IO stated in his cross examination that he had examined Prem Nath Khanna whose name appears in the Account CBI Vs. Chetan Sharma & others. Page No.: 40 of 173 :41: CBI Case No.40/11 Opening Form and the documents Ex. PW31/1 to Ex. PW31/7 and the said person was found to be 70 years old and he did not resemble with the photograph as affixed on the said form and further efforts were made to trace the introducer of account of M/s Sonata Impex with a view to ascertain the actual identity of the person, who had opened account in the assumed name of Prem Nath Khanna as Proprietor M/s Sonanta Impex but the said introducer could not be traced. PW33 further stated in cross examination that the identity of the account holder of M/s Sonata Impex could not established during investigation and Tarun Verma who had signed the Account Opening Form of M/s Sonata Impex as introducer also could not be traced during investigation. The evidence as adduced by prosecution regarding opening of Current Account No.307501010133597 of M/s Royal Sales Corporation has proved that the same was opened on the basis of introduction by Prem Nath Khanna purporting to be Proprietor of M/s Sonata Impex which account had been opened in the assumed name of Prem Nath Khanna and is a fictitious account.
67. The allegations of the prosecution are that the accused Chetan Sharma and M.C. Aggarwal had conspired and in pursuance of the same account No.307501010133597 of M/s Royal Sales Corporation was authorized to be opened by accused M. C. Aggarwal on the basis of introduction of Account holder of account No.307501010133577 which was fictitious account in order to avail C C Limits from Union Bank of India on the basis of forged and CBI Vs. Chetan Sharma & others. Page No.: 41 of 173 :42: CBI Case No.40/11 fabricated documents in order to cause wrongful loss to the Union Bank of India and wrongful gain to the accused persons. It is contended by Ld. PP for CBI that the accused Chetan Sharma in conspiracy with coaccused persons submitted forged & fabricated documents in order to avail CC Limit.
68. The contention of Ld. Counsel for the accused Chetan Sharma is that accused Chetan Sharma had not submitted any forged documents with the application for sanction of CC Limit and no collateral security of any property was submitted by accused Chetan Sharma for sanction of Cash Credit(CC) Limit.
69. After opening of account No.307501010133597 in the name of M/s Royal Sales Corporation on 05.06.2007, the accused Chetan Sharma applied for Cash Credit Limit facility of Rs.One Crore against Hypothecation of Stock and Debtors to Union Bank of India Sadar Bazar, vide the application dated 15.6.2007 Ex. PW21/A [copy of the same alongwith documents is Ex. PW22/A(Colly) (Part of file D25). The allegations of prosecution are that for availing of CC Limit of Rs.one crore, accused Chetan Sharma had submitted documents concerning M/s Royal Sales Corporation i.e. Audit Report for the year 200506, Balance Sheet for the year 200506, Provisional Balance Sheet for the year 2007, IT Return for the year 200506 and Registration Certificate of M/s Royal Sales Corporation with the Office of Commissioner of Industries and the papers so submitted for CBI Vs. Chetan Sharma & others. Page No.: 42 of 173 :43: CBI Case No.40/11 availing the CC Limit of Rs.One Crore were found to be forged and fabricated.
70. The contention of accused Chetan Sharma is that he had applied for Cash Credit Limit of Rs.One Crore vide his application dated 15.6.2007 against Hypothecation of Stock and Debtors to Union Bank of India, Sadar Bazar Branch but no forged or fabricated documents were submitted by him to Union Bank of India.
71. The application dated 15.06.2007 of M/s Royal Sales Corporation submitted and signed by accused Chetan Sharma for providing Cash Credit Limit of Rs.One Crore, addressed to Chief Manager, Union Bank of India, Sadar Bazar is Ex. PW21/A (D25) and copy of this application alongwith enclosures (pages 1 to 76) is Ex. PW22/A (colly)(D25). As per Ex. PW22/A (colly)(D25) for availing cash credit limit of Rs.one crore, accused Chetan Sharma had submitted various documents i.e Audit Report of M/s Royal Sales Corporation for the Assessment Year 20052006 dated 28.07.2005 under section 44 AB of the Income Tax Act 1961 and Balance Sheet for the Assessment Year 200506, Provisional Balance Sheet for the year 2007 issued by M/s Singhal & Company, Chartered Accountants, 105 Master Complex, 8 Veer Savarkar Block, Shakarpur, Delhi92 and copy of Income Tax Return for the Assessment Year 200506.
CBI Vs. Chetan Sharma & others. Page No.: 43 of 173 :44: CBI Case No.40/11
72. In his statement recorded under section 313 Cr.PC, accused Chetan Sharma admitted that vide application dated 15.06.2007 Ex.PW22/A(D25) he applied for Cash Credit Limit of Rs.One Crore and copy of this application alongwith enclosures (pages 1 to 76) is Ex.PW22/A(D25). But in the statement under section 313 Cr.PC, accused Chetan Sharma has also stated that the documents issued by M/s Singhal & Company were not submitted by him. Hence, in the statement under section 313 Cr.PC, accused Chetan Sharma on one hand has admitted his application Ex. PW22/A alongwith enclosures but on the other hand has denied the submission of reports as prepared by M/s Singhal & Company. Accused M. C. Aggarwal in the statement under section 313 Cr.PC stated that it is matter of record that accused Chetan Sharma applied for cash credit limit of Rs.One Crore vide his application dated 15.06.2007 Ex.PW21/A(D25) and copy of this application alongwith the enclosures(Pages 176) is Ex. PW22/A (D25).
73. PW33 Shri Ajit Singh stated in his examination in chief that notice under section 160 Cr.PC, Ex. PW33/B13(D86) was issued to M/s Singhal & Company, Chartered Accountants, 105 Masters Complex, 8 Veer Savarkar Marg, Shakarpur, Delhi 92 through Head Ct. Jagbir Singh, asking them to join investigation to answer questions regarding the documents submitted by accused Chetan Sharma purported to have been issued by M/s Singhal & Company for grant of Cash Credit Limit of Rs. One Crore and said CBI Vs. Chetan Sharma & others. Page No.: 44 of 173 :45: CBI Case No.40/11 report of Head Ct. Jagbir is Ex. PW33/B14 which is on the back of said notice Ex.PW33/B13 and as per said report no such firm of Chartered Accountant exists at the address given.
74. The plea of accused Chetan Sharma is that the IO has not verified from the Institute of Chartered Accountants that whether any such Chartered Accountant by the name of M/s Singhal & Company is registered with the said institute and incomplete investigation has been conducted by the IO on this aspect. Ld. PP CBI has contended that the investigation conducted by the IO has proved that no organization by the name of M/s Singhal & Company, Chartered Accountants existed at the address given and the report of Head Ct. Jagbir Ex. PW33/B14 has clearly established same and thereafter no further investigation was required to be conducted on this aspect and the prosecution has discharged the onus of proving the same in terms of Section 106 of the Evidence Act and if accused Chetan Sharma asserts otherwise then it was open for him to have examined any witness from M/s Singhal & Company to prove the same.
75. Section 106 of the Indian Evidence Act, 1872 reads as under:
"106. Burden of proving fact especially within knowledge.-When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
76. In the cross examination, IO/PW 33 stated that he had CBI Vs. Chetan Sharma & others. Page No.: 45 of 173 :46: CBI Case No.40/11 sent notice under section 160 Cr.PC, Ex. PW33/B13 to M/s Singhal & Company through Head Ct. Jagbir who submitted his report Ex. PW33/B14 and Head Ct. had not collected any documents and had not recorded statement of any neighbours and he had not collected documents from the Institute of Chartered Accountants. It is to be noted that in the statement under section 313 Cr.PC, accused Chetan Sharma has not denied submitting documents to Union Bank of India alongwith his application Ex. PW22/A (Colly) which also include documents purportedly issued by M/s Singhal & Company, for availing cash credit limit of Rs.one crore. On one hand accused Chetan Sharma has pleaded that he had not submitted documents prepared by M/s Singhal & Company alongwith his application and on the other hand accused Chetan Sharma has pleaded that IO has conducted incomplete investigation by only relying on the report of Head Ct. Jagbir Ex.PW33/B14. Head Ct. Jagbir in his report, Ex. PW33/B14 has mentioned that there is no office of M/s Singhal & Company Chartered Accountants at the address given as one organisation by the name of Classic Interiors and Decorators is functioning at the said address. If the contention of accused Chetan Sharma is that Head Ct. had submitted incorrect report and M/s Singhal & Company, Chartered Accountants are in existence, in that case it was open for accused Chetan Sharma to have examined any witness from the office of M/s Singhal & Company, Chartered Accountants in order to prove that the said organization is in existence and the documents i.e. Audit Report of M/s Royal Sales CBI Vs. Chetan Sharma & others. Page No.: 46 of 173 :47: CBI Case No.40/11 Corporation for the Assessment Year 20052006 dated 28.07.2005 under section 44 AB of the Income Tax Act 1961, Balance Sheet for the Assessment Year 200506 and Provisional Balance Sheet for the year 2007 submitted alongwith the application dated 15.06.2007 for grant of Cash Credit Limit of Rs.One Crore, were issued by M/s Singhal & Company, Chartered Accountants. Although accused Chetan Sharma has pleaded that IO has conducted incomplete investigation on the aspect of existence of M/s Singhal & Company, Chartered Accountants but accused Chetan Sharma has not examined any witness from M/s Singhal & Company, Chartered Accountants in order to prove his contention regarding the genuineness of the documents purportedly prepared by M/s Singhal & Company, Chartered Accountants, which were submitted alongwith the application dated 15.06.2007 for grant of Cash Credit Limit of Rs.One crore. In order to sustain his plea of nonsubmission of documents prepared by M/s Singhal & Company alongwith his application Ex. PW22/A (Colly) accused Chetan Sharma has not given suggestion to any prosecution witness that documents prepared by M/s Singhal & Company and forming part of enclosure of Ex. PW22/A (Colly) were not submitted by him. The plea of accused Chetan Sharma regarding nonsubmission of documents prepared by M/s Singhal & Company, alongwith his application Ex. PW22/A (Colly) is after thought and has been taken by him to avoid consequences of submission of forged documents.
77. The prosecution has succeeded in proving that the Audit CBI Vs. Chetan Sharma & others. Page No.: 47 of 173 :48: CBI Case No.40/11 Report for the year 200506, the Balance Sheet for the year 200506 and the Provisional Balance Sheet for the year 2007 purported to be prepared by M/s Singhal & Company, Chartered Accountants, were submitted by accused Chetan Sharma alongwith the application dated 15.06.2007 for grant of Cash Credit Limit and the same are forged and fabricated documents.
78. Another allegation of prosecution is that alongwith the application for grant of Cash Credit Limit of Rs.One Crore Ex. PW22/A(colly), accused Chetan Sharma had submitted one forged Registration Certificate dated 21.05.2001 purportedly issued by the Office of the Commissioner of Industries, Delhi Administration, CPO Building, Kashmere Gate, Delhi issued in the name of M/s Royal Sales Corporation, Proprietor Chetan Sharma in order to prove before the Union Bank of India that M/s Royal Sales Corporation is registered with the Office of Commissioner of Industries.
79. The contention of Ld. PP, CBI is that in order to verify the authenticity of certificate dated 21.05.2001 purportedly issued by office of Commissioner of Industries, IO/PW33 sent letter to the Office of Commissioner of Industries and reply was received from the office of Commissioner of Industries to the effect that M/s Royal Sales Corporation is not registered under the SSI Registration Scheme. IO/ PW33 Shri Ajit Singh stated in examinationinchief that he received letter dated 31.03.2010, Ex.PW33/B15(D88) from the Office of Commissioner of Industries. The contention of Ld. Counsel for accused Chetan Sharma is that the IO/PW33 has not CBI Vs. Chetan Sharma & others. Page No.: 48 of 173 :49: CBI Case No.40/11 conducted any further investigation from the office of Commissioner of Industries with regard to Registration Certificate dated 21.05.2001 to arrive at the conclusion that the same is a forged document and the IO/PW33 stated in cross examination that he had obtained letter dated 31.3.2010 from the Office of Commissioner of Industries, Ex. PW33/B15 however, he had not checked the records of SSI and had not recorded the statement of any official of Office of Commissioner of Industries. Ld. PP, CBI has contended that in the letter dated 31.03.2010 Ex. PW 33/B15 the office of Commissioner of Industries has specifically stated that as per the data available with the said office, M/s Royal Sales Corporation is not registered with the said office. Ld. PP, CBI has further contended that if the registration certificate dated 21.05.2001 purportedly issued by Office of Commissioner of Industries which was submitted by accused Chetan Sharma was a genuine document in that case the accused Chetan Sharma could have summoned records from the office of Commissioner of Industries in his defence in order to prove his contention. Ld. PP, CBI has contended that the prosecution has discharged the onus cast upon it to prove that the Registration Certificate dated 21.05.2001 is a forged document by proving the reply dated 31.03.2010 of office of Commissioner of Industries, Ex.PW33/B15 and in terms of Section 106 of the Evidence Act, 1872 the onus of proving the genuineness of said certificate had shifted on accused Chetan Sharma.
80. IO/PW 33 stated in cross examination that he had CBI Vs. Chetan Sharma & others. Page No.: 49 of 173 :50: CBI Case No.40/11 obtained the letter dated 31.03.2010 Ex. PW33/B10(D88) from the Assistant Commissioner of Industries. PW33 further stated in the cross examination that he did not record the statement of any official of the Office of Commissioner of Industries. In the cross examination of PW33 a suggestion has been given by accused Chetan Sharma to the effect that SSI Registration Certificate provided by accused Chetan Sharma is a genuine document and was duly issued in the year 2001 which was denied by PW33. In his statement under section 313 Cr. PC accused Chetan Sharma has admitted submitting application dated 15.06.2007 for grant of cash credit limit of Rs.one crore alongwith documents, Ex. PW22/A (colly) (D25) and accused M. C. Aggarwal stated in the statement under section 313 Cr. PC that submission of application dated 15.06.2007 alongwith the documents for grant of cash credit limit of Rs.one crore by accused Chetan Sharma Ex.PW22/A (colly) (D25) is a matter of record. Hence, the accused Chetan Sharma has not denied submission of the Registration Certificate dated 21.05.2001 purportedly issued by the Office of Commissioner of Industries by accused Chetan Sharma alongwith the application dated 15.06.2007 for grant of Cash Credit Limit of Rs.One crore. In order to prove its allegation that the said Registration Certificate dated 21.05.2001 is a forged document, the prosecution has relied upon the reply dated 31.03.2010, Ex.PW33/B15(D88) from the office of Commissioner of Industries. The fact of issuance of Registration Certificate dated 21.05.2001 by the office of Commissioner of Industries is especially CBI Vs. Chetan Sharma & others. Page No.: 50 of 173 :51: CBI Case No.40/11 within knowledge of accused Chetan Sharma and it was open for him to have proved the same by leading cogent evidence. But accused Chetan Sharma apart from taking plea about incomplete investigation by IO regarding genuineness of the registration certificate dated 21.05.2001, has not adduced any evidence in order to corroborate his contention regarding genuineness of the registration certificate dated 21.05.2001. The prosecution has succeeded in proving that the accused Chetan Sharma has submitted to Union Bank of India a forged and fabricated Registration Certificate dated 21.05.2001 purportedly issued by the Office of Commissioner of Industries alongwith his application dated 15.06.2007 Ex.PW22/A (colly)(D25) for grant of Cash Credit Limit of Rs.One Crore.
SUBMISSION OF COLLATERAL SECURITIES
81. Another allegation of prosecution is that in furtherance of their conspiracy to commit fraud on Union Bank of India in order to cause wrongful loss to Union Bank of India and wrongful gain to themselves, for availing cash credit limit of Rs. One crore, accused Chetan Sharma had submitted collateral security of property No. 37/575 Onkar Nagar, Tri Nagar Delhi in the name of Ms. Raman Devi @ Rama Devi and physical inspection report dated 12.06.2007 of the said property was submitted by accused M. C. Aggarwal according to which the property was found under the possession of Smt. Raman Devi wife of Ram Kishan but as per investigation the said Smt. Raman Devi had already expired on 29.04.2007. It is CBI Vs. Chetan Sharma & others. Page No.: 51 of 173 :52: CBI Case No.40/11 further alleged that as per valuation report of the said property No.37/575, Onkar nagar, Tri Nagar, Delhi submitted by Shri K. G. Saini, the Government Valuer the valuation was reported as Rs.89.57 lacs and the Legal Search Report of this property was submitted by S. S. Budhiraja Advocate on the panel of the Bank and according to his report the property was free from encumbrances and was found to be valid and marketable.
82. It is further alleged that accused M. C. Aggarwal, the then Branch Manager, had prepared inspection report dated 26.05.2007 of having visited the factory premises of M/s Royal Sales Corporation at 1/342, Gali No.1, Friends Colony, Industrial Area, Shahdara, Delhi 95 and according to said inspection report, 32 employees were found working in the premises M/s Royal Sales Corporation at the time of inspection and the investigation has revealed that accused M. C. Aggarwal had submitted a false inspection report dated 26.05.2007 dishonestly and by abusing his official position to favour the accused Chetan Sharma.
83. Ld. PP, CBI has contended that M/s Royal Sales Corporation did not exist at the address 1/342, Friends Colony, Industrial Area, Shahdara, Delhi and prosecution has adduced evidence to this effect and the said inspection report dated 26.05.2007 is even prior to applying by accused Chetan Sharma for grant of Cash Credit Limit, which was applied on 15.06.2007. Ld. PP, CBI has further contended that the accused persons had already conspired and CBI Vs. Chetan Sharma & others. Page No.: 52 of 173 :53: CBI Case No.40/11 in furtherance of their conspiracy they had started creating documents which would have facilitated grant of cash credit limit in favour of M/s Royal Sales Corporation of which accused Chetan Sharma was Proprietor. Ld. PP CBI has further contended that the collateral security of property no.37/575, Onkar Nagar, Tri Nagar, Delhi was offered for grant of CC Limit of Rs.One Crore which was applied on 15.06.2007 but accused M. C. Aggarwal in his inspection report dated 26.05.2007 has mentioned about the offering of the collateral security of the property at Tri Nagar in the name of Smt. Raman Devi. Ld. PP, CBI further contended that the nefarious designs of accused persons are further exhibited from the fact that inspection of the property at Tri Nagar of Smt. Raman Devi @ Rama Devi was conducted on 12.06.2007 i.e. even before submission of the application for grant of Cash Credit Limit dated 15.06.2007.
84. The contention of accused M. C. Aggarwal is that the inspection report dated 26.05.2007 is correct and has been prepared after visiting the premises of M/s Royal Sales Corporation i.e. 1/342, Friends Colony, Industrial Area, Shahdara, Delhi. The accused M. C. Aggarwal has further contended that inspection report of the property of Smt. Raman Devi at Tri Nagar is also correct and the inspection report has been prepared in due discharge of his duties and there is no mala fide in preparing the said reports.
85. Accused Chetan Sharma has also contended that inspection report dated 26.05.2007 of accused M. C. Aggarwal regarding inspection of M/s Royal Sales Corporation, 1/342, Friends CBI Vs. Chetan Sharma & others. Page No.: 53 of 173 :54: CBI Case No.40/11 Colony, Industrial Area, Shahdara,Delhi is correct. However, accused Chetan Sharma has contended that he had not furnished any collateral security of the property at Tri Nagar of Smt. Raman Devi @ Rama Devi. Accused Chetan Sharma has further contended that his application for grant of CC Limit of Rs.One Crore would reveal that he had not offered collateral security of any property for grant of cash credit limit.
86. The allegation of the prosecution is that accused M. C. Aggarwal had prepared a false inspection report dated 26.05.2007 of M/s Royal Sales Corporation, 1/342, Friends Colony, Industrial Area, Shahdara, Delhi. In his statement under section 313 Cr. PC accused M.C. Aggarwal was put question to the effect that he filed inspection report of the premises i.e. 1/342, Friends Colony, Industrial Area, Shahdara Delhi which is Ex. PW21/B(wrongly written as Ex. PW21/A) pursuant to his visit to the above said premises on 26.05.2007 to which accused M.C Aggarwal replied by stating that it is a matter of record and he had inspected the factory as per norms and procedure of the bank. Accused Chetan Sharma was also put question in the statement under Section 313 Cr.PC in respect of inspection report dated 26.05.2007 Ex.PW21/B prepared by accused M. C. Aggarwal regarding premises No.1/342, Friends Colony, Industrial Area, Shahdara, Delhi to which accused Chetan Sharma answered by stating that his factory was duly inspected where he was running his business of manufacturing of copper wires. Although, in his statement under section 313 Cr. PC, accused Chetan Sharma has CBI Vs. Chetan Sharma & others. Page No.: 54 of 173 :55: CBI Case No.40/11 stated that his factory was duly inspected however, during the course of arguments, accused Chetan Sharma has raised contention that in the inspection report dated 26.05.2007 EX.PW21/B of Shri M. C. Aggarwal, the name of proprietor is mentioned as C. P. Vashisht or C. K. Vashisht and does not bear the signature of accused Chetan Sharma and no reliance can be placed on the alleged inspection report. It is to be noted that accused M.C. Aggarwal and Chetan Sharma have taken pleas in their statements under section 313 Cr.PC that the inspection report dated 26.5.2007 Ex.PW21/B was prepared after due inspection of the premises no.1/342, Gali No.1, Friends Colony, Industrial Area, Shahdara, Delhi. However, by raising the plea that the name of the Proprietor in the report dated 26.05.2007 is mentioned as either C. P Vashisht or C. K. Vashisht and no reliance can be placed on the said report dated 26.05.2007, accused Chetan Sharma has himself raised doubts on the correctness of the said inspection report.
87. The inspection report dated 26.05.2007 Ex.PW21/B(wrongly written as PW21/A)(D25) prepared by accused M. C. Aggarwal is as under :
"Inspection Report Date of visit : 260507.
Place: 1/342, Gali No. 1, Friends Colony
(Factory Industrial Area, Shahadra
& Office) Delhi - 110095
Activity : mfg of copper wires of thinner gauges =(2mm upto 36) from
(Process thicker gauges (16) purchased from Jhilmil,
of mfg) Vishwas Nagar Industrial Areas.
The wire is drawn through machine called
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wire Drawing machines.
The wire is thereafter passed through anneling machine to give strength to the wire.
Thereafter it is put through bunching process and the drawn wire is put in reals and sold to.
a) cable manufactures in Vishwas Nagar, Jhilmil Indl Area & Wazirpur Indl Area
b) traders in Bhagirath Palace, Basti Harphool Singh, Sadar Bazar and Bahadurgarh Trading areas.
Workforce : 26 Skilled labour on job work basis
4 staff members [one supervisor Mr. Bunty]
2 Guards
32
Machines a) Wire Drawing Machines - 8 |
(High Speed) | list of machines
b) Annelling machines - 3 | enclosed.
c) Bunching machines - 2 |
Party has recently put up a new
Anneling machine costing around Rs 28 Lacs.
Power : 63Kv.
Load
Power : NIL.
Backup There is regular power supply of BSES and
no power cuts being industrial area. Hence
the unit has not felt any need of
putting up a generator.
It is informed by the Prop. Sh. C P Vashisht
that there is no effect on the process of mfg.
even if the power goes off.
Capacity : 31/2 tons per day.
Utilization : 100%
Factory is run in three shifts (24 hrs a day)
Water Availability : Regular supply 24 hrs by M.C.D., Delhi Jal Board.
Factory : a) Located on Four Floors.
CBI Vs. Chetan Sharma & others. Page No.: 56 of 173
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CBI Case No.40/11
G.F. Bunching and stocks.
F F Enalling
S. F. Drawing
T. F. Miscellaneous.
b) Factory is in name of Late Sh. K. C.
Sharma, Uncle of Proprietor. Mr. K. C. Sharma
has no heirs except her wife who lives
with the proprietor. Hence factory is
with the proprietor for all practical purposes.
c)Running since Year 2002.
History : Mr Vashisht was in trading of wires Since 1989. After study of the line and experience, he shifted to mfg in the Year 2002.
The trend of sales of unit is growing It is a consistently in profits.
Competitors : Shahadara, Jhilmil, Vishwas Ngr Industrial Area are main markets of copper wire and form area's biggest market There are many units in the same line in above industrial Area.
There is good demand of product because of its use in Cable Industry where demand is ever rising.
Avg Stock : 15 tons to 20 tons. Rate per ton . 400,000/
level
Valued Rs 60 to Rs 80 Lacs.
Period of : 15 to 20 day
Credit
Available
Period of : 40 days to 60 days to industries
Credit offered 30 days to traders
Party's Request for W. C. limit of Rs. 2.00 crores.
Funds (a) W.C. funds requirement arising because requirement of one additional anneling machine put up. The new capacity added by CBI Vs. Chetan Sharma & others. Page No.: 57 of 173 :58: CBI Case No.40/11 putting up this machine is 1.5 ton daily.
The capacity of this machine 'Gautam' is much higher than existing anneling machines The funds requirement for 1.5 ton copper is Rs 6 Lacs Raw material Daily on cycle of one with (gap between prod'n & realisation) party needs funds of Rs 1.80 crores
b) The requirement of funds has also increased in last 6 months because of increase in copper prices by Rs 60000/ per ton.
Property no. (Residential) Collaterals: 99 Onkar Nagar, Tri nagar, Delhi in name of Smt. Raman Devi, cousin of Shri C. K. Vashisht.
Area 200 sq yds Built up Three Floors Sd/ 26.5.07 (M. C. Aggarwal) Chief Manager"
88. The allegation of prosecution is that inspection report dated 26.05.2007 Ex.PW21/B is a fabricated report prepared by accused M. C. Aggarwal as no factory of M/s Royal Sales Corporation was in existence at 1/342, Gali No. 1, Friends Colony, Industrial Area, Shahdara, Delhi. Ld. PP CBI has contended that at the said address Sh. Rajendra Sharma, S/o Late Sh. K. C. Sharma was running his factory under the name of M/s Raj Kamal Wire Industries and accused M. C. Aggarwal in conspiracy with accused Chetan Sharma has prepared a false Inspection Report dated 26.05.2007 thereby stating that in the said premises business activity of manufacture of copper wires is being carried by accused Chetan CBI Vs. Chetan Sharma & others. Page No.: 58 of 173 :59: CBI Case No.40/11 Sharma and PW13 Sh. Rajender Sharma has falsified the said report. The contention of accused Chetan Sharma is that he is the owner of the said premises and PW13 Rajender Sharma is relative of accused Chetan Sharma and on that account PW13 Rajender Sharma was allowed to run his business from the said premises by accused Chetan Sharma. Accused M. C. Aggarwal has contended that the inspection of the factory situated at 1/342, Gali No. 1, Friends Colony, Industrial Area, Shahdara, Delhi was correctly conducted by him and IO has not conducted investigation properly and has not examined supervisor Bunty who was found at the given address by him.
89. PW13 Sh. Rajender Sharma stated that he is running business of manufacture of copper wires in the name and style of M/s Raj Kamal Wire Industries at 1/342, 1E, Gali No. 1, Friends Colony, Industrial Area, Shahdara, Delhi since the year 2007 and he has registered his firm with Central Excise Department, Delhi vide Registration No. AASPS 98339 XM001 and his firm is also registered with Department of Value Added Tax, Government of NCT of Delhi vide Registration No. 07720325511 and the said industrial Plot is owned by his brotherinlaw Sh. Gopal Krishan Mishra. PW13 proved the Central Excise Registration Certificate issued in the name of M/s Raj Kamal Wire Industries owned by Rajender Kumar Sharma Hindu Undivided Family Ex.PW13/A, Form DVAT 06 issued by Department of Value Added Tax, Government of NCT of Delhi in the name of M/s Raj Kamal Wire CBI Vs. Chetan Sharma & others. Page No.: 59 of 173 :60: CBI Case No.40/11 Industries Ex.PW13/B and Certificate of Registration issued under the Central Sales Tax (Registration and Turnover) Rules 1957 in the name of M/s Raj Kamal Wire Industries as Ex. PW13/C. PW13 further stated in his examinationinchief that he has never pledged or hypothecated his factory to any bank or financial institution and Sh. Chetan Sharma is his friend for more than twenty years and is also his relative i.e. Fatherinlaw of his brotherinlaw. PW13 further stated that he has no business relation with Sh. Chetan Sharma and he does not know the business activity of M/s Royal Sales Corporation.
90. In the crossexamination of PW13 Sh. Rajender Sharma, accused Chetan Sharma has given suggestion to the effect that the factory at 1/342, Gali No. 1, Friends Colony, Industrial Area, Shahdara, Delhi actually belongs to Sh. Dharam Bir Gupta from whom accused Chetan Sharma purchased on 10.12.2003 and since then accused Chetan Sharma is running his business at the said premises, which was denied by PW13. In the cross examination of PW13 another suggestion has been given by accused Chetan Sharma that PW13 came into his factory premises after August, 2007 when Chetan Sharma left his factory, which was denied by PW13. As per Form DVAT 06 Ex.PW13/B proved by PW13, the liability of M/s Raj Kamal Wire Industries for the purposes of DVAT has commenced from 28.02.2007. As per Certificate of Registration issued under the Central Sales Tax (Registration and Turnover) Rules 1957 Ex.PW13/C, the said certificate in the name of M/s Raj Kamal CBI Vs. Chetan Sharma & others. Page No.: 60 of 173 :61: CBI Case No.40/11 Wire Industries is also valid from 28.02.2007. In the cross examination of PW13 accused Chetan Sharma has given suggestion to the effect that PW13 came into this factory premises after August 2007 when Chetan Sharma left this factory which was denied by PW13. PW13 stated in crossexamination that he had started working in the said factory in February 2007 and not in August 2007. At this stage, it is also worth noting that in file Ex.PW6/A(D25) there is one copy of electricity bill for the billing month July 2007, bill date 03.06.2007 issued by BSES Yamuna Power Limited in the name of Sh. Rajender Kumar, 1/342 - 1E, Friends Colony, Industrial Area, Shahadara, Delhi as per which electricity meter vide Reference No./K No. 1210/5000/2584 was installed at the said premises in the name of Sh. Rajender Kumar.
91. In the crossexamination PW13 Sh. Rajender Kumar, accused Chetan Sharma has given suggestion to the effect that the property 1/342, Gali No. 1, Friends Colony, Industrial Area, Shahdara, Delhi was purchased by accused Chetan Sharma from Sh. Dharam Bir Gupta on 10.12.2003 and since then accused Chetan Sharma is running his business at the said premises. In order to substantiate his plea of purchasing the property No. 1/342, Gali No. 1, Friends Colony, Industrial Area, Shahdara, Delhi, accused Chetan Sharma examined Sh. Avtar Singh, LDC from the office of Sub Registrar - IV, Seelam Pur, Nand Nagri, Delhi as DW1 who stated that he has brought the register containing the sale deed documents CBI Vs. Chetan Sharma & others. Page No.: 61 of 173 :62: CBI Case No.40/11 registered vide registration No. 3851, Book No. I, Vol, No. 3547 at pages 138141 registered in the office of Sub Registrar - IV, Seelam Pur, Delhi on 22.12.2003 and the photocopy of the sale deed is Ex.DW1/A. As per Sale Deed Ex.DW1/A, the said sale deed was executed on 12.12.2003 by Sh. C. P. Sharma S/o Sh. O. P. Sharma, R/o D1, S.F. II part, Ram Prastha, Ghaziabad, U. P. in favour of Sh. C. P. Sharma S/o Sh. O. P. Sharma, R/o D1, S.F. II part, Ram Prastha, Ghaziabad, U.P. in respect of property bearing No. 1/342/E1, built on portion of Plot No. 1/342, area measuring 360 Sq. Yards, out of Khasra No. 1185/20/2 with whole of its structure, situated in the Abadi of Gali No.1, known as Friends Colony, G. T. Road, in the area of Jhilmil Tahirpur, Illaqa: Shahdara, Delhi.
92. Contention of Ld. PP CBI is that PW13 specifically stated in his cross examination that Shri G. K. Mishra had purchased the said land in auction from Canara Bank Chandni Chowk Branch and in the year 2006 and PW13 erected factory on the said land and since then PW13 has been carrying on his business at the said address under the name of Raj Kamal Wire Industries and accused Chetan Sharma has not proved any document to the effect that he constructed factory at the said address or purchased machinery or has been carrying on the business at the said address since the year 2003.
93. Accused Chetan Sharma has relied on the sale deed dated 12.12.2003 Ex. DW1/A in order to prove acquisition of the CBI Vs. Chetan Sharma & others. Page No.: 62 of 173 :63: CBI Case No.40/11 property No.1/342, Gali No. 1, Friends Colony, Industrial Area, Shahdara, Delhi. In the crossexamination PW13 stated that the said property was purchased by Shri G. K. Mishra in auction from Canara Bank, Chandni Chowk Branch and PW13 further stated that he constructed the factory on the said land in the year 2006. PW13 stated that the factory which has been erected measures 186 Sq. Yards. As per Sale Deed Ex. DW1/A, C. P. Sharma had purchased the an area measuring 360 Sq. Yards bearing property No.1/342/E1 built on portion of plot no.1/342 out of Khasra No.1185/20/2. It is to be noted that as per Ex.PW13/B and Ex.PW13/C M/s Raj Kamal Wire Industries was in existence in February, 2007. In the cross examination of PW13, accused Chetan Sharma has given suggestion to the effect that PW13 came into the factory premises after August 2007, when accused Chetan Sharma left the factory premises. By giving this suggestion to PW13 in the cross examination accused Chetan Sharma has pleaded that he left the premises No.1/342, Gali No1, Friends Colony, Industrial Area, Shahdara, Delhi in August, 2007 but in the letter, Ex. PW6/A1(D25) addressed to Chief Manager, Union of India, accused Chetan Sharma has stated that he has shifted his factory premises from December, 2007. In the absence of any other evidence to support the contention of accused Chetan Sharma that he has been carrying his business in property No.1/342, Gali No.1, Friends Colony, Industrial Area, Shahdara, Delhi since the year 2003, the sale deed Ex.DW1/A is of no help to the accused Chetan Sharma.
CBI Vs. Chetan Sharma & others. Page No.: 63 of 173 :64: CBI Case No.40/11
94. It is to be noted that accused persons have pleaded that the IO has not conducted investigation properly regarding existence of factory of M/s Royal Sales Corporation at Premises No. 1/342, Gali No. 1, Friends Colony, Industrial Area, Shahdara, Delhi by not examining Sh. Guddu, by not collecting details of the owner of the said property, by not preparing the site plan and by not taking photographs of the said property. Even if IO had not conducted the investigation properly as alleged by accused persons, in that case it was open for accused persons to have proved the attendance record, bonus record, ESI details etc. of the employees during the relevant period in order to prove that number of employees as mentioned in the inspection report dated 26.05.2007 were employed at the time of inspection. The accused persons could have also proved the electricity bills as of the date of inspection in order to corroborate the sanctioned load and electricity consumption as mentioned in the inspection report dated 26.05.2007 and accuseds also could have proved the stock register and accounts books in order to lend corroboration to the inspection report dated 26.05.2007. However, instead of proving the records in their possession, the accused persons have raised plea of deficiencies in investigation.
95. At this stage it may also be mentioned that accused Chetan Sharma has pleaded that IO had seized his records. IO/PW33 stated in the crossexamination that he conducted a search at the house of accused Chetan Sharma and during search certain CBI Vs. Chetan Sharma & others. Page No.: 64 of 173 :65: CBI Case No.40/11 documents were recovered which were seized vide search list, copy of which was also given to accused Chetan Sharma. Accused Chetan Sharma has not given suggestion to IO/PW33 in the cross examination that copy of search list was not supplied to him. In case accused Chetan Sharma was of the view that certain documents seized by IO are necessary for his defence, in that case it was open for him to have filed appropriate application under Section 91 Cr.PC for production of the said documents. But accused Chetan Sharma has not adopted this course which proves that the documents which were seized by IO during search of his house were not relevant for his defence. Moreover, the merits of the allegations of the prosecution are to be adjudicated on the basis of evidence collected by the prosecution and not on the basis of what has not been collected by prosecution.
96. Regarding the Inspection Report dated 26.05.2007, the plea of accused M. C. Aggarwal is that he had inspected the property at the instance of the owner. In the cross examination of PW13 Shri Rajender Kumar, accused M. C. Aggarwal has put questions to him to the effect that accused Chetan Sharma used to visit the said factory in the absence of Rajender Kumar and all employees of Rajender Kumar were aware that accused Chetan Sharma was his relative and people used to visit accused Chetan Sharma in his factory. By putting these questions to the PW13, accused M. C. Aggarwal has tried to plead that accused Chetan Sharma might have taken accused M. C. CBI Vs. Chetan Sharma & others. Page No.: 65 of 173 :66: CBI Case No.40/11 Aggarwal for inspection to the factory in the absence of Shri Rajender Kumar and would have thereby misled M. C. Aggarwal in believing that the said factory is in fact, owned by accused Chetan Sharma. Ld. PP, CBI has contended that accused M.C. Aggarwal is an educated person and was holding high position of Chief Manager in the Bank and it was expected that he will make appropriate enquiries for arriving at his conclusions and this plea is not open for accused M. C. Aggarwal that he inspected the factory which was shown to him by accused Chetan Sharma claiming himself to be the owner of the same.
97. In the Inspection Report dated 26.05.2007 Ex.
21/B(D25), accused M. C. Aggarwal has mentioned the details of various activities of the said factory including details regarding capacity, human resources finances, etc. Once an officer of the rank of Chief Manager is inspecting some factory then it cannot be said that he will be merely preparing his report on the dictation of the proprietor of the said factory without verifying the claims as made by the proprietor from the documents available in the said factory. It is highly improbable that accused M. C. Aggarwal was shown factory at premises No.1/342, Gali No.1, Friends Colony, Industrial Area, Shahdara, Delhi by accused Chetan Sharma in a clandestine manner and accused M. C. Aggarwal believed the entire version of the proprietor and reproduced the same in his report dated 26.05.2007 without verification from any independent source. The evidence on record has proved that the inspection report dated 26.05.2007 has CBI Vs. Chetan Sharma & others. Page No.: 66 of 173 :67: CBI Case No.40/11 been fabricated by accused M. C. Aggarwal in criminal conspiracy with other accused persons.
98. As per aforesaid inspection report dated 26.05.2007 Ex.
PW21/B the accused M. C. Aggarwal, Chief Manager of Union Bank of India, Sadar Bazar had inspected the premises no.1/342, Gali No.1, Friends Colony, Industrial Area, Shahdara, Delhi and had made his observation regarding the manufacturing activity in the said premises, number of persons working, the type of machinery installed, capacity of the factory, the proprietorship of the said factory premises, period of credit, history, competitors, etc. and in the said report Shri M. C. Aggarwal has also stated that he had also met Proprietor Shri C. P. Vashisht and had also mentioned about the collateral security of residential property No.99, Onkar Nagar, Trinagar, Delhi in the name of Smt. Raman Devi cousin of Shri C. K. Vashisht, area 200 sq.yard built up three floors. It is to be noted that accused M. C. Aggarwal has prepared Inspection Report on 26.05.2007 but Current Account No. 307501010133597 in the name of M/s Royal Sales Corporation was opened on 05.06.2007 in Union Bank of India, Sadar Bazar, New Delhi. Accused M.C. Aggarwal has not explained as to how he inspected the premises No. 1/342, Gali No.1, Friends Colony, Industrial Area, Shahdara, Delhi even when M/s Royal Sales Corporation had not opened any account in the Union Bank of India, Sadar Bazar Branch. As per letter Ex.PW21/A (D25) the cash credit limit of Rs. 1crore was applied by accused Chetan Sharma on 15.06.2007 i.e. subsequent to the opening of Current Account No. CBI Vs. Chetan Sharma & others. Page No.: 67 of 173 :68: CBI Case No.40/11 307501010133597 in the name of M/s Royal Sales Corporation on 05.06.2007. The inspection report dated 26.05.2007 Ex.PW21/B of accused M. C. Aggarwal shows that the accused persons had entered into conspiracy and in furtherance of the same even prior to opening of account by accused Chetan Sharma in the name of M/s Royal Sales Corporation and submission of application for grant of Cash Credit Limit, accused M. C. Aggarwal had prepared the inspection report Ex.PW21/B in order to facilitate disbursal of Cash Credit Limit to accused Chetan Sharma proprietor of M/s Royal Sales Corporation.
99. The prosecution has further alleged that accused Chetan Sharma, in conspiracy with accused M. C. Aggarwal, had submitted forged and fabricated documents of property i.e. House N.99, Onkar Nagar, Tri Nagar, Delhi also mentioned as 37/575, Plot No.9, Gali No.37, Onkar Nagar, Tri Nagar, Delhi belonging to Smt. Raman Devi @ Rama Devi as collateral security for grant of Cash Credit Limit of Rs.One Crore.
100. Regarding submission of documents of property No. House N.99, Onkar Nagar, Tri Nagar, Delhi also mentioned as 37/575, Plot No.9, Gali No.37, Onkar Nagar, Tri Nagar, Delhi as collateral security for grant of Cash Credit Limit of Rs.One Crore, accused Chetan Sharma and accused M. C. Aggarwal have taken contrary pleas. Accused Chetan Sharma has pleaded that he had not offered the collateral security of property No. House N.99, Onkar Nagar, Tri Nagar, Delhi also mentioned as 37/575, Plot No.9, Gali CBI Vs. Chetan Sharma & others. Page No.: 68 of 173 :69: CBI Case No.40/11 No.37, Onkar Nagar, Tri Nagar, Delhi. But accused M. C. Aggarwal has pleaded that accused Chetan Sharma had offered the collateral security of property No. House N.99, Onkar Nagar, Tri Nagar, Delhi also mentioned as 37/575, Plot No.9, Gali No.37, Onkar Nagar, Tri Nagar, Delhi in the name of Raman Devi @ Rama Devi for grant of Cash Credit Limit of Rs.One Crore.
101. Accused Chetan Sharma has contended that perusal of his application dated 15.06.2007 for grant of Cash Credit Limit of Rs.One Crore will show that he had applied for Cash Credit Limit of Rs.One crore against hypothecation of stocks and debtors and had not offered collateral security of property No. House N.99, Onkar Nagar, Tri Nagar, Delhi also mentioned as 37/575, Plot No.9, Gali No.37, Onkar Nagar, Tri Nagar, Delhi belonging to Smt. Raman Devi @ Rama Devi. In the statement under section 313 Cr. PC, accused Chetan Sharma stated that neither any collateral security was asked from him nor he offered any collateral security and he further stated that vide his application for Cash Credit Limit, he has not offered any collateral security. Accused M. C. Aggarwal was put question in the statement under section 313 Cr.PC regarding offering collateral security by accused Chetan Sharma in the form of equitable mortgage of property No.37/575, Plot No.9, Gali No.37, Onkar Nagar, Tri Nagar, Delhi owned by Smt. Rama Devi/Raman Devi to which he answered by stating that it is a matter of record and further stated that accused Chetan Sharma had signed the Sanction Advice in token of acceptance of collateral security of Smt. Rama Devi against limit of CBI Vs. Chetan Sharma & others. Page No.: 69 of 173 :70: CBI Case No.40/11 Rs.75 lacs sanctioned by Union Bank of India, Sadar Bazar.
102. Another question which arises on account of contradictory pleas being taken by accused Chetan Sharma and accused M. C. Aggarwal regarding offering of collateral security of property No.37/575, Plot No.9, Gali No.37, Onkar Nagar, Tri Nagar, Delhi owned by Smt. Rama Devi/Raman Devi, is that if accused Chetan Sharma had not offered the collateral security of the aforesaid property then how the bank officials processed the request of accused Chetan Sharma for grant of cash credit limit on the basis of collateral security of the said property for grant of cash credit limit and further as to why the bank officials of their own should arrange for collateral security for grant of cash credit limit to accused Chetan Sharma.
103. The prosecution examined Sh. Jang Bahadur Handa, the then Manager (Advances) Union Bank of India, Sadar Bazar, Delhi as PW23 who stated that whenever any proposal/application for loan is submitted in the bank, usually it is received first by the Chief Manager who checks the validity of the proposal and financial data and then used to send the same to them for appraisal and in this case the application/proposal of loan was given to Sh. V. K. Gupta, the then processing Officer by Sh. M. C. Aggarwal, Chief Manager and the proposal application is Ex.PW21/A (D25) and is signed by Chetan Prakash, Proprietor of M/s Royal Sales Corporation at point A. PW23 further stated in his examinationinchief that before handing over the aforesaid loan application alongwith its enclosures, Sh. M. C. Aggarwal conducted inspection and a report was prepared CBI Vs. Chetan Sharma & others. Page No.: 70 of 173 :71: CBI Case No.40/11 under his handwriting and signature which is Ex.PW21/B(wrongly written as Ex.PW21/A) and valuation Report was also got prepared by Sh. M. C. Aggarwal which is Ex.PW21/C and is signed by K. G. Saini, the then Approved Valuer of the property at point B on each page and the said report is signed by M. C. Aggarwal at point A. PW23 further stated that this report was handed over to them alongwith the loan application and at the end of the valuation report there is endorsement by M. C. Aggarwal to the effect that he had visited the property and is satisfied with the reasonable value of the property and the said endorsement is at point C on the valuation report Ex.PW21/C. PW23 further stated that the proposal was handed over to Sh. V. K. Gupta who typed the proposal under the guidance of M. C. Aggarwal and the said proposal is Ex.PW21/D (Colly) and on the last page of the said proposal PW23 identified his signatures at point B and signatures of Sh. V. K. Gupta at point A and signatures of M. C. Aggarwal at point C. Sh. V. K. Gupta appeared in witness box as PW22. In the crossexamination of PW22 accused Chetan Sharma has given suggestion to the effect that preprinted form in file (D23 and D22) Ex,PW22/I and Ex.PW22/J were got signed from accused Chetan Sharma and the same were subsequently filled and while seeking enhancement of CC limit the accused Chetan Sharma offered the book debts, creditors and stock. PW22 voluntarily stated in crossexamination that property was also offered.
104. Sh. Jang Bahadur Handa PW23 stated in examinationin CBI Vs. Chetan Sharma & others. Page No.: 71 of 173 :72: CBI Case No.40/11 chief that after sanction of the loan, sanction advise Ex.PW23/A (D
25) was communicated to M/s Royal Sales Corporation and thereafter party was called for documentation and equitable mortgage of property and Sh. Chetan Sharma and Smt. Rama Devi, property owner visited the Chief Manager who sent them to him for completion of documentation and the file containing documents is Ex.PW21/I (Colly) (D22) and the letter of guarantee signed by Smt. Rama Devi is Ex.PW23/B which is signed by her on each page and the accused Chetan Sharma also signed a DP note, letter of continuity, letter of guarantee (SD01) and hypothecation agreements of goods and debts. PW23 further stated that Smt. Rama Devi had also submitted a sale deed in her name which is Ex.PW8/Dx1 alongwith her ID card and Smt. Rama Devi submitted declaration Ex.PW11/E to Ex.PW11/M (Colly) (D8 to D10) and photocopy of her election ID card Ex.PW11/P which bears her signatures at point A and her photograph and she also submitted photocopies of no dues certificate from MCD, copy of ration card, house tax(D11) and the same are Ex.PW23/C (Colly). PW 23 specifically stated in his examinationinchief that these documents were submitted by Smt. Rama Devi before him alongwith accused Chetan Sharma who was present there and Smt. Rama Devi had signed before him on these documents. PW23 further stated that since there was a difference of name of the property owner i.e. Smt. Raman Devi and Smt. Rama Devi/Bhagwan Das, he asked the property owner regarding the said difference and he (PW23) was informed by Chetan Sharma and CBI Vs. Chetan Sharma & others. Page No.: 72 of 173 :73: CBI Case No.40/11 Rama Devi that Bhagwan Das is the name of her father and thereafter he referred this matter orally to Sh. M. C. Aggarwal who sought the second advise of Smt. Rashmi Srivastava, Panel Advocate and she advised them to take another declaration from Smt. Rama Devi, which was obtained. PW23 stated that the report of Smt. Rashmi Srivastava, Advocate is Ex.PW23/D (D7) and declaration of Smt. Rama Devi is Ex.PW11/E to Ex.PW11/O and this was also published in daily newspaper "The Statesman" which is Ex.PW23/F. PW23 stated that he was instructed to release the sanctioned amount to the party and he asked for written instruction from M. C. Aggarwal to create equitable mortgage vide his note Ex.PW22/G (D11) and Sh.
M. C. Aggarwal gave written instructions for creating equitable mortgage vide his note dated 11.07.2007 Ex.PW22/H (D11). PW 23 specifically stated that as per instructions of Sh. M. C. Aggarwal, the documents of the property submitted by Chetan Sharma and Smt. Rama Devi were mortgaged. In the crossexamination of PW23 accused Chetan Sharma has given suggestion to the effect that the application submitted by accused Chetan Sharma Ex.PW22/A (Colly) (D25) does not contain averment of offering collateral security of any property. PW 23 voluntarily stated in his crossexamination that accused Chetan Sharma had offered property of his cousin Smt. Rama Devi. PW 23 further stated in the crossexamination that in his Inspection Report Sh. M. C. Aggarwal has also mentioned about the offering of collateral security. PW 23 stated in the crossexamination that relation between Rama Devi and accused Chetan Sharma was CBI Vs. Chetan Sharma & others. Page No.: 73 of 173 :74: CBI Case No.40/11 stated to be of cousin by accused Chetan Sharma and the same was also mentioned in the inspection report prepared by Chief Manager M. C. Aggarwal.
105. Sh. Sham Sunder Budhiraja, Advocate who had given legal opinion/ search report in respect of property No.37/575, Plot No.9, Gali No.37, Onkar Nagar, Tri Nagar, Delhi owned by Smt. Rama Devi/Raman Devi appeared in witness box as PW8 and he also stated that Sh. M. C. Aggarwal had sent one Sh. Alam alongwith accused Chetan Sharma to assist him regarding Urdu record at the office of SubRegistrar and accused Chetan Sharma had introduced himself as grandson of owner of property and Chetan Sharma had also produced the original sale deed in respect of the said property. PW8 stated in his crossexamination that he compared the endorsement on the documents shown to him by accused Chetan Sharma and the one available on the index in the SubRegistrar office. No such discrepancies have appeared in the cross examination of prosecution witnesses which would discredit their testimonies regarding offering of collateral security by accused Chetan Sharma of property No.37/575, Plot No.9, Gali No.37, Onkar Nagar, Tri Nagar, Delhi owned by Smt. Rama Devi/Raman Devi.
106. Another allegation of prosecution is that accused Chetan Sharma had applied for enhancement of cash credit limit of Rs. 75 lac to Rs. 1.5 crore by offering collateral security of property No. 21/15, Shakti Nagar, Delhi owned by Smt. Pushpa Gupta on the basis of forged and fabricated documents of the said property. Regarding CBI Vs. Chetan Sharma & others. Page No.: 74 of 173 :75: CBI Case No.40/11 offering of this property also as collateral security accused Chetan Sharma has stated in his statement under Section 313 Cr.P.C. that he never accompanied any lady by the name of Pushpa Gupta nor he offered the alleged collateral security at the time of enhancement of cash credit limit. In his statement under Section 313 Cr.P.C. accused M. C. Aggarwal stated that sending a communication letter/ sanction advise dated 05.11.2007 Ex.PW23/A (D25) by which M/s Royal Sales Corporation was communicated the sanction advice for CC limit from 75 lac to 150 lac is a matter of record. In his statement under Section 313 Cr.P.C. accused M. C. Aggarwal further stated that accused Chetan Sharma signed the sanction advise in token of acceptance of terms and conditions of sanction of enhanced CC limit of Rs. 150 lac and one of the condition of sanction was that the limit is sanctioned against collateral security of property of Smt. Pushpa Gupta and already existing property of Smt. Rama Devi.
107. Hence, regarding offering of collateral security of property No. 21/15, Shakti Nagar, Delhi owned by Smt. Pushpa Gupta also, accused Chetan Sharma and accused M. C. Aggarwal have taken contradictory pleas.
108. PW23 Jang Bahadur Handa stated in his examinationin chief that in the month of October, 2007 accused Chetan Sharma moved an application for enhancement of limit of loan and the said application of accused Chetan Sharma dated 10.10.2007 is Ex.PW22/D (Colly) (D25) and in this application accused Chetan Sharma had mentioned to offer additional property as mortgage and CBI Vs. Chetan Sharma & others. Page No.: 75 of 173 :76: CBI Case No.40/11 the said property as mentioned in the said application was inspected for the purpose of assessing valuation and a report to that effect Ex.PW2/A2 was submitted by Sh. R. L. Gupta, Registered Valuer and the said report is also signed by Sh. M. C. Aggarwal at point B and C and M.C.Aggarwal also visited said property and had attested the said valuation vide his endorsement at point D on the last page of the valuation report dated 01.11.2007 Ex.PW2/A2(D14). PW23 further stated that joint note Ex.PW22/E (Colly)(D25) was prepared by him and by Sh. V. K. Gupta for enhancement of cash credit limit from 75 lacs to 150 lacs and the same was sanctioned by accused M. C. Aggarwal by writing and signing at point A on the said note Ex.PW22/E (Colly). PW23 stated that thereafter Chetan Sharma came with one lady Pushpa Gupta and submitted a sale deed dated 24.05.71 Ex.DX2 (D12). PW23 further stated that Smt. Pushpa Gupta signed declaration Ex.PW9/A (D16) in presence of him, V. K. Gupta, Chetan Sharma and M. C. Aggarwal and PW23 identified signatures of Pushpa Gupta which were made by her in his presence on Ex.PW9/A at point A on each page of the said declaration. PW23 stated that the alleged Pushpa Gupta and Rama Devi were not known to him previously and they were introduced for the first time in the bank by accused Chetan Sharma in the presence of accused M. C. Aggarwal and it was on their representation he took them as Pushpa Gupta and Rama Devi.
109. The contention of accused Chetan Sharma is that in his CBI Vs. Chetan Sharma & others. Page No.: 76 of 173 :77: CBI Case No.40/11 application for enhancement of cash credit limit he had not mentioned regarding offering of collateral security of any property and PW23 has admitted in his crossexamination that there are certain additions by hand in the application dated 10.10.2007 of accused Chetan Sharma for enhancement of cash credit limit from 75 lacs to 150 lacs.
110. In the crossexamination PW23 stated that it is correct that Ex.PW22/D is the typed application of accused Chetan Sharma and the words "additional, Shakti Nagar, Delhi in the name of Pushpa Devi" are written in hand and the said handwriting is not initialled.
111. The application of M/s Royal Sales Corporation dated 10.10.2007 for enhancement of cash credit limit is Ex.PW22/D (Colly)(D25) and the part of the said application is as under:
"I am ready to provide additional collateral security worth of Rs. 2.00 crore (appx.) as on date in the form of a residential house at Shakti Nagar Delhi in the name of Pushpa Rani."
112. The contents of the application dated 10.10.2007 Ex.PW22/D(Colly) are type written but the words "additional" and "at Shakti Nagar, Delhi in the name of Pushpa Rani" in the aforesaid part of the said application Ex.PW22/D (Colly) are written by hand. The prosecution has not proved any opinion of handwriting expert to the effect that the handwritten contents in the application dated 10.10.2007 Ex.PW22/D(Colly) are in the handwriting of accused Chetan Sharma. Although prosecution has not proved that the words CBI Vs. Chetan Sharma & others. Page No.: 77 of 173 :78: CBI Case No.40/11 words "additional" and "at Shakti Nagar, Delhi in the name of Pushpa Rani" in the aforesaid part of the said application Ex.PW22/D (Colly) are written by accused Chetan Sharma but even if the aforesaid handwritten words are deleted from the application dated 10.10.2007 Ex.PW22/D(Colly) still the said application will convey meaning that accused Chetan Sharma had offered to provide collateral security worth Rs. 2 crores approximately in the form of creating equitable mortgage of residential property. Hence, there is no merit in the contention of accused Chetan Sharma that vide his application dated 10.10.2007 Ex.PW22/D (Colly) he had not offered collateral security of any property.
113. Sh. Vinod Kumar Gupta PW22 stated that accused Chetan Sharma applied for enhancement of limit vide his application PW22/D (Colly) and vide sanction Ex.PW22/E (Colly) accused M. C. Aggarwal enhanced the limit to Rs. 150 lacs. In the cross examination of PW22 accused Chetan Sharma has given suggestion to the effect that while seeking enhancement of CC limit, the accused Chetan Sharma had offered book debts, creditiors and stocks but PW22 voluntarily stated that property was also offered. PW23 Jang Bahadur Handa stated that after enhancement of CC limit from 75 lacs to 150 lacs the sanction advise Ex.PW23/A (D25) was communicated to M/s Royal Sales Corporation which bears signatures of accused M.C. Aggarwal at point A. In the cross examination of PW23 accused Chetan Sharma has given suggestion to the effect that Ex.PW23/A has been filled by the bank but PW23 CBI Vs. Chetan Sharma & others. Page No.: 78 of 173 :79: CBI Case No.40/11 voluntarily stated that it was signed by party in token of acceptance of the contents. PW23 denied suggestion of accused Chetan Sharma in the examination that the documents including Ex.PW23/A were filled subsequently and it was got signed from accused Chetan Sharma in good faith.
114. Ex.PW23/A is the sanction advise dated 05.11.2007 issued by Union Bank of India, Sadar Bazar Branch, to M/s Royal Sales Corporation thereby informing about acceptance of its request for enhancement of cash credit limt and it was informed that the same has been increased from 75 lacs to 150 lacs. The paragraphs 5 and 6 of Ex.PW23/A are as under:
5. The terms and conditions governing the Credit Facilities as mentioned above are detailed in Annexure 'A'.
The firm should also comply with all the Government/RBI guidelines as applicable from time to time.
6. The duplicate of this letter may please be returned to us duly signed by an authorised signatory of the firm in token of having accepted the terms and conditions as detailed in Annexure.
115. The letter Ex.PW23/A has been signed by Chetan Sharma as proprietor of M/s Royal Sales Corporation at point B which contains stipulation "Accepted the above on the terms and conditions mentioned in Annexure A". The Annexure A of Ex.PW23/A contains full description of collateral securities as :
House No. 99, Onkar Nagar, Tri Nagar, Delhi, in the name of Rama Devi. Value : Rs. 89.57 lacs.
21/15, Shakti Nagar, Delhi in the name of Ms. Pushpa Gupta. Value: Rs. 102.52 lacs CBI Vs. Chetan Sharma & others. Page No.: 79 of 173 :80: CBI Case No.40/11
116. Annexure A to Ex.PW23/A contains details of guarantors as:
Name of the Address Means
guarantor/s
Mrs. Rama House No. 99,
Devi Onkar Nagar, Tri
Nagar, Delhi
Mrs. Pushpa 21/5, Shakti Nagar,
Gupta Delhi
117. Annexure A of Ex.PW23/A is signed by Chetan Sharma as proprietor of M/s Royal Sales Corporation as having accepted all the terms and conditions. Smt. Pushpa Gupta has also signed annexure A of Ex.PW23/A below the signatures of Chetan Sharma.
118. PW23 also stated in his examinationinchief a register was being maintained in the bank in its official course of business for maintaining entries related to title deeds of the properties mortgaged by the guarantors/loanees and the details of the documents in respect of Plot No. 9, Onkar Nagar, Tri Nagar, Delhi owned by Smt. Raman Devi @ Rama Devi were mentioned in the said register by him on 04.07.2007 and the entry in the said register is Ex.PW23/V. PW23 further stated that on the said page of register a memorandum of deposit of title deeds is pasted and the same was filled in by him relating to the mortgage of documents in the name of Smt. Rama Devi and the same is Ex.PW23/W and the same is signed by him at point A and it is signed by M. C. Aggarwal at point B. As per CBI Vs. Chetan Sharma & others. Page No.: 80 of 173 :81: CBI Case No.40/11 Ex.PW23/V and Ex.PW23/W the documents which were received by the bank were original sale deed dated 05.01.63, Reg. No. 707 in favour of Smt. Raman Devi (Rama Devi), affidavit of Smt. Rama Devi regarding clarification of her name, house tax receipt, ration card, declaration, affidavit, legal search report of Budhiraja and Associates, valuation report by K. G. Saini, affidavit dated 09.07.2007 of Smt. Rama Devi affidavit attested by Subdivisional Magistrate and copy of publication in the newspaper "The Statesman" dated 11.07.2007.
119. PW23 Sh. Jang Bahadur Handa further stated that on 06.11.2007 on page 38 of the same register i.e. the register maintained for keeping entries relating to title deeds submitted by guarantors/loanees, he made entries of the documents of mortgaged property submitted by Smt. Pushpa Gupta and the copy of the relevant page of the register is Ex.PW23/XA and on the same page of the register, there is memorandum of deposit of title deeds pasted there in original and the same was filled by Sh. V. K. Gupta and he(PW23) signed the same at point A and it is signed by M. C. Aggarwal at point B and true copy of the same is Ex.PW23/XB. As per Ex.PW23/XA and Ex.PW23/XB, the documents which were received by the bank are sale deed dated 24.05.71, original sale deed dated 22.05.84 in favour of Pushpa Gupta, House Tax receipt, declaration, affidavit, inspection report, legal opinion from Budhiraja and Associates and Valuation report of Sh. R. L. Gupta.
120. The contention of accused Chetan Sharma is that CBI Vs. Chetan Sharma & others. Page No.: 81 of 173 :82: CBI Case No.40/11 Ex.PW23/V, Ex.PW23/W, Ex.PW23/XA and Ex.PW23/XB are not signed by him and the same do not prove that the documents of equitable mortgage were submitted in his presence. In the cross examination PW23 stated that in the Mortgage Register signatures of accused Chetan Sharma are not required. It is to be noted that PW23 also stated in his crossexamination that the initial loan application Ex.PW21/A came up before him and in the said application, accused Chetan Sharma had not mentioned about collateral security but it was very much mentioned in the Inspection Report dated 26.05.2007 of M. C. Aggarwal Ex.PW21/B(wrongly written as Ex.PW21/A) that collateral security was offered. PW23 has specifically stated in his crossexamination that Smt. Rama Devi appeared before him twice and the relation between Rama Devi and Chetan Sharma was stated to be cousin sister by accused Chetan Sharma and same thing was mentioned in the report dated 26.05.2007 prepared by M. C. Aggarwal. PW23 has also stated in his crossexamination that at the time of enhancement of credit facility both the guarantors namely Rama Devi and Pushpa Devi appeared before him and at that time M. C. Aggarwal and V. K. Gupta were also present and the relation of Pushpa Gupta with Chetan Sharma was told by M. C. Aggarwal as wife of his friend, as M. C. Aggarwal had visited the property. In view of evidence on record, there is no force in the contention of accused Chetan Sharma that he had not offered Property No. 37/575 Onkar Nagar, Tri Nagar Delhi in the name of Ms. Raman Devi @ Rama Devi and Property No. 21/15, Shakti Nagar, Delhi owned by CBI Vs. Chetan Sharma & others. Page No.: 82 of 173 :83: CBI Case No.40/11 Smt. Pushpa Gupta as collateral securities for availing cash credit limit of Rs. 75 lacs and for enhancement of cash credit limit to Rs. 150 lacs.
121. The allegation of prosecution is that accused Chetan Sharma in conspiracy with the other accused persons had submitted forged and fabricated documents of Property No. 37/575 Onkar Nagar, Tri Nagar Delhi in the name of Ms. Raman Devi @ Rama Devi and Property No. 21/15, Shakti Nagar, Delhi owned by Smt. Pushpa Gupta as collateral securities for availing cash credit limit of Rs. 75 lacs and for enhancement of cash credit limit to Rs. 150 lacs and in furtherance of the same Smt. Harbans Kaur (PO) was impersonated as Smt. Rama Devi and another lady (not arrested) as Pushpa Gupta. In order to prove the allegations, the prosecution examined Sh. Ram Kishan Sharma as PW11 who stated that he is living in Property No. 37/575, Tri Nagar, Delhi since the year 1962 and the said property was in the name of his wife Smt. Rama Devi. PW11 further stated that neither he nor his wife mortgaged the said property with any bank and his wife Smt. Rama Devi expired on 29.04.2007. PW11 stated that the signatures as appearing at point A on the declaration dated 04.07.2007 Ex.PW11/E and Ex.PW11/F(D8) are not the signatures of his wife Smt. Rama Devi. PW11 further stated that the signatures as appearing at point A on the declaration dated 04.07.2007 Ex.PW11/G, Ex.PW11/H, Ex.PW11/I and Ex.PW11/J (D9) are not the signatures of his wife Smt. Rama Devi. PW11 stated that the signatures as appearing at Point A and B on the CBI Vs. Chetan Sharma & others. Page No.: 83 of 173 :84: CBI Case No.40/11 affidavit purported to be executed on 22.06.2007 Ex.PW11/L and Ex.PW11/M (D10) are not the signatures of his wife Smt. Rama Devi. PW11 further stated that the signatures as appearing at Point A and B on the affidavit dated 09.07.2007 Ex.PW11/N and Ex.PW11/O (D10) are not the signatures of his wife Smt. Rama Devi.
122. As per testimony of PW11 his wife Smt. Rama Devi had expired on 29.04.2007 and accused Chetan Sharma had applied for cash credit limit on 15.06.2007 vide his application Ex.PW21/A copy of which is Ex.PW22/A (Colly) and the property No. 37/575, Onkar Nagar, Tri Nagar, Delhi was visited by Sh. K. G. Saini, Valuer and accused M. C. Aggarwal on 12.06.2007 and in pursuance of the same valuation report dated 17.06.2007 Ex.PW21/C was submitted in the bank. The Legal Search Report dated 19.06.2007 Ex.PW8/A (D6) in respect of Property No. Plot No. 9, Onkar Nagar, Tri Nagar, Delhi, owned by Smt. Raman Devi @ Rama Devi was submitted to bank by Sh. S. S. Budhiraja advocate alongwith receipt dated 14.06.2007 of the office of Div. Commissioner Delhi Ex.PW8/C (D6) and receipt dated 19.06.2007 of the office of SubRegistrar, Sub Distt. N/W, Delhi Ex.PW8/B (D6). As per testimony of PW23, he had noted discrepancy in the name of Smt. Rama Devi and the matter was referred to M.C. Aggarwal who sought second advice of other bank approved advocate, Smt. Rashmi Srivastava who advised to take another declaration from Smt. Rama Devi consequent to which declaration of Smt Rama Devi Ex.PW11/E to Ex.PW11/O were CBI Vs. Chetan Sharma & others. Page No.: 84 of 173 :85: CBI Case No.40/11 obtained and the same was also published in the daily newspaper "The Statesman" dated 11.07.2007 and the said newspaper publication is Ex.PW23/F. The note dated 11.07.2007 of Sh. J. B. Handa mentioning the discrepancy in the name of Smt. Rama Devi is Ex.PW22/G (D11) and the note dated 11.07.2007 of M. C. Aggarwal thereby stating that they have obtained affidavit signed by the party and further stating the party issued notice in the newspaper dated 10.07.2007 in the newspaper "The Statesman" and thereby ordering for creation of equitable mortgage of the property is Ex.PW22/H (D
11). PW11 who is husband of Smt. Rama Devi has categorically stated in his testimony that Ex.PW11/E to Ex.PW11/O are not signed by his wife Smt. Rama Devi and also stated that copy of the election identity card bearing No. DL/04/059/125632 Ex.PW33/DX4 (Page 9 of D11) in the name of Smt. Rama Devi, is not signed by his wife at point A and one original photograph at point B on the same is also not of his wife. As per testimony of PW11 his wife Smt. Rama Devi had expired on 29.04.2007 and the documents of property No.. 37/575 Onkar Nagar, Tri Nagar Delhi in the name of Ms. Raman Devi @ Rama Devi were submitted in the Union Bank of India, Sadar Bazar Branch on 04.07.2007 and the lady impersonating had also signed the documents in the Union Bank of India i.e. letter of guarantee Ex.PW23/B (D22) on 04.07.2007 and letter of guarantee in file Ex.PW22/J (Colly) (D23) also exhibited as Ex.PW23/M (Colly) on 06.11.2007. The factum of death of Smt. Rama Devi on 29.04.2007 itself shows that the documents executed on 04.07.2007 CBI Vs. Chetan Sharma & others. Page No.: 85 of 173 :86: CBI Case No.40/11 i.e. letter of guarantee Ex.PW23/B and on 06.11.2007 i.e. letter of guarantee in file Ex.PW22/J (Colly) (D23) also exhibited as Ex.PW23/M (Colly) on 06.11.2007 have been executed by a person who has impersonated as Smt. Rama Devi.
123. Prosecution examined Smt. Pushpa Gupta as PW9 who stated that the property No. 21/15, Shakti Nagar, Delhi was purchased by her husband in her name from Sh. Chabil Das vide sale deed Ex.PW5/B (D84) and she does not know any persons by the name of R. L. Gupta and M. C. Aggarwal and they never visited the above said property. PW9 further stated that the declaration Ex.PW9/A (D16) is not signed by her at points A although it bears her name at points A. PW9 stated that the affidavit Ex.PW9/B (D
17) also bears her name at point A but the same is not signed by her. PW9 further stated that she does not know any person by the name of Chetan Sharma neither she knows any firm by the name of M/s Royal Sales Corporation and she had no transactions with M/s Royal Sales Corporation and she neither visited Union Bank of India, Sadar Bazar to mortgage her property nor she has executed any document.
124. PW27 Ms. Shalini Gupta, who is the daughter of Smt. Pushpa Gupta, owner of property No.37/575, Onkar Nagar, Tri Nagar, Delhi was declared hostile and was crossexamined by Ld. PP, CBI. The contention of Ld. PP, CBI is that the entire testimony of PW27 cannot be discredited and part of her testimony which supports the case of prosecution can be relied upon.
CBI Vs. Chetan Sharma & others. Page No.: 86 of 173 :87: CBI Case No.40/11
125. In Koli Lakhmanbhai Chanabhai Vs. State of Gujrat, 1999 (4) Crimes 256, it was held that evidence of hostile witness can also be relied upon to the extent to which it supports the prosecution version and the evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence.
126. In Anil Rai Vs. State of Bihar 2001 Crl. L.J. 3969 Hon'ble Supreme Court was pleased to hold:
'37. .......... The mere fact that the Court gave the permission to the Public Prosecutor to crossexamine his own witness by declaring him hostile does not completely efface the evidence of such witness. The evidence remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence'.
127. In Gura Singh Vs. State of Rajasthan, AIR 2001 Supreme Court 330 (1) it was held :
'12. ......... From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is crossexamined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such crossexamination and contradiction, the witness stand thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of CBI Vs. Chetan Sharma & others. Page No.: 87 of 173 :88: CBI Case No.40/11 the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.'
128. In the crossexamination by Ld. PP, CBI, PW27 Ms. Shalini Gupta was shown one copy of the election Identity Card bearing name of Smt. Pushpa Gupta (D20) and PW27 stated that the said election identity card Ex.PW27/A does not bear photograph of her mother at point B and the one original photograph at point A bearing name Pushpa Gupta is also not of her mother. PW27 further stated that his mother was/is owner of Property No. 21/15, Shakti Nagar, Delhi. PW27 further stated that in the year 200708, or before or after 200708, no bank official has ever visited their premises. PW27 denied suggestion of accused M. C. Aggarwal in the cross examination that R. L. Gupta and M. C, Aggarwal had visited their property on 05.11.2007. No suggestions has been given to PW9 to the effect that she had gone to Union Bank of India, Sadar Bazar Branch and had deposited the title deeds of her property No. 21/15, Shakti Nagar, Delhi for creating equitable mortgage of the said property in favour of Union Bank of India for standing as guarantor for M/s Royal Sales Corporation of which accused Chetan Sharma is the proprietor. From the testimony of PW9, it is evident that PW9 had not visited the Union Bank of India, Sadar Bazar Branch and had not signed any document for creating equitable mortgage of property No. 21/15, Shakti Nagar, Delhi and the documents Ex.PW9/A(D16), CBI Vs. Chetan Sharma & others. Page No.: 88 of 173 :89: CBI Case No.40/11 Ex.PW9/B (D17), letter of guarantee in file Ex.PW22/J (Colly) (D
23) also exhibited as Ex.PW23/M (Colly), on 06.11.2007 and the said documents has been signed by the person impersonating as Smt. Pushpa Gupta.
129. PW11 Shri Ram Kishan Sharma, who is husband of Smt. Rama Devi, owner of property No.37/575, Onkar Nagar, Tri Nagar, Delhi specifically stated that neither he nor his wife mortgaged the said property with the bank. The contention of accused M. C. Aggarwal is that Shri S. S. Budhiraja submitted false report regarding the documents of the said property. PW8 Shri S. S. Budhiraja stated that legal opinion/search report dated 19.06.2007 Ex. PW 8/A(colly) (D6) was given on the request of the branch manager of the said bank and further stated that prior to giving the opinion he visited the office of sub registrar and inspected the relevant index and had deposited the relevant charges vide receipts Ex.PW8/B & Ex.PW8/C. PW 8 stated in cross examination by accused M. C. Aggarwal that he is not sure but it appears that Ex.PW8/DX1(D4) was shown to him by Chetan Sharma as original document at the time of his visit stated above. Although accused M. C. Aggarwal has pleaded that Shri S. S. Budhiraja had given incorrect report but PW8 S. S. Budhiraja has specifically stated that he had submitted his report on the basis of inspection of the Index of the concerned property in the office of sub registrar concerned. Accused M. C. Aggarwal has not proved that any letter was issued by the bank to S. S. Budhiraja whereby he was CBI Vs. Chetan Sharma & others. Page No.: 89 of 173 :90: CBI Case No.40/11 directed to verify the authenticity/genuineness of the documents submitted with the bank by comparing the same with the records available in the office of SubRegistrar concerned. Accused M. C. Aggarwal has also not proved that any note was put up before him by any junior official in the usual course of business of the bank thereby, requesting for obtaining the report regarding the genuineness of the documents pertaining to the property No.37/575, Onkar Nagar, Tri Nagar, Delhi submitted with the bank for the purpose of creation of equitable mortgage. PW14 Shri Subhash Garg advocate stated that he had submitted his report dated 20.11.2008 Ex.PW14/A regarding property forming part of land bearing No.9, area 200 sq yards out of Khasra No.206, Onkar Nagar Extension, at the request of Union Bank of India, Sadar Bazar branch. PW14 stated that he had examined the photocopy of the sale deed No.707 dated 22.01.1963 pertaining to the said property which was provided to him by the branch and on close scrutiny of the photocopy supplied by the bank and the certified copy thereof obtained from the Office of Sub Registrar concerned, he found that there are various discrepancies in both the copies. In the cross examination of PW14, no suggestions have been given to the effect that his report Ex. PW14/A regarding the scrutiny of documents of property forming part of land bearing No.9, area 200 sq yards out of Khasra No.206, Onkar Nagar Extension, is incorrect.
130. The PW9 Smt. Pushpa Gupta stated that the Property No. CBI Vs. Chetan Sharma & others. Page No.: 90 of 173 :91: CBI Case No.40/11 21/15, Shakti Nagar was purchased by her vide sale deed Ex.PW5/B (D84) and the sale deed Ex.PW8/DX3 (D13) does not bear her signature and thumb impression. PW8 Sh. S. S. Budhiraja Advocate stated that M. C. Aggarwal had sent one Sh. Alam alongwith Chetan Sharma to assist him regarding Urdu record at the office of Sub Registrar and Chetan Sharma had also produced the original sale deed in respect of the said property and he had asked for the original sale deed because the copy supplied to him by the bank was not legible. In the crossexamination PW8 was confronted with sale deeds Ex.PW8/DX2 (D12) and Ex.PW8/DX3 (D13) and PW8 stated that he is not sure but it appears that Ex.PW8/DX2 and Ex.PW8/DX3 were shown to him by accused Chetan Sharma as the original documents at the time of his visit. Sh. Subhash Garg, Advocate/PW14 stated that he had examined the photocopy of the sale deed No. 3955 dated 24.05.71 and the sale deed No. 1791 dated 22.05.84 pertaining to property No. 21/15, Shakti Nagar, Delhi which were provided to him by the Union Bank of India with the record of SubRegistrar and scrutiny of the photocopy of the said documents supplied by the bank with the certified copy of the same obtained from office of SubRegistrar concerned, he found that there were various discrepancies in both the copies and his report is Ex.PW14/C (D25). In the report Ex.PW14/C Sh. Subhash Garg, Advocate has stated that the original of the sale deed which is lying with the bank also creates doubts on the genuineness of the document and Sh. Subhash Garg, Advocate has given opinion that the questioned sale CBI Vs. Chetan Sharma & others. Page No.: 91 of 173 :92: CBI Case No.40/11 deed is not the original of the document registered with the sub Registrar Office. In the crossexamination by accused M. C. Aggarwal, PW14 stated that he is not aware that Mr. Budhiraja had given any report to the bank. Accused M. C. Aggarwal has pleaded that Sh. S. S. Buddhiraja had given a false report on the documents of the properties to the bank. It is to be noted that Sh. S. S. Buddhiraja/PW8 has stated that he had submitted his opinion on the basis of inspection of relevant index of the property in the office of concerned subregistrar. The testimony of witnesses and the documents on record has proved that forged and fabricated document purporting to be the sale deeds of Property No. 37/575 Onkar Nagar, Tri Nagar Delhi and Property No. 21/15, Shakti Nagar, Delhi were furnished to the Union Bank of India, Sadar Bazar Branch, Delhi for creating equitable mortgage of the said properties in favour of Union Bank of India, Sadar Bazar Branch, Delhi.
131. Another allegation of prosecution is that accused M. C. Aggarwal in furtherance of criminal conspiracy criminally misconducted himself by abusing his official position by not only preparing false inspection report dated 26.05.2007 of factory of M/s Royal Sales Corporation but by also preparing false site visit/verification reports of the properties.
132. The contention of Ld. PP, CBI is that the accused M. C. Aggarwal prepared false inspection report of property No. 37/575 CBI Vs. Chetan Sharma & others. Page No.: 92 of 173 :93: CBI Case No.40/11 Onkar Nagar, Tri Nagar Delhi. The Site Visit Report and Inspection Report of the property no. 37/575 Onkar Nagar, Tri Nagar, Delhi owned by Smt. Rama Devi is Ex. PW21/G (D19) as per which accused M. C. Aggarwal had visited the said property on 12.06.2007 and Valuation Report of the said property prepared by Shri K. G. Saini is Ex. PW20/A(colly) (D5). The Site Visit Report and Inspection Report, Ex. PW21/G is prepared by accused M. C. Aggarwal and bears his signatures at point A and the Valuation Report, Ex.PW20/A(colly) is also signed by accused M. C. Aggarwal at point B. In his statement under section 313 Cr. PC, accused M. C. Aggarwal stated that valuation of property No. 37/575 Onkar Nagar, Tri Nagar, Delhi by Shri K. G. Saini and submission of Valuation Report Ex.PW20/A(colly) by him and acceptance of the said report by him(M. C. Aggarwal) on the basis of his own inspection of site as per his report dated 12.06.2015, Ex.PW21/G(D19) is a matter of record. Shri Ram Kishan Sharma, husband of Smt. Rama Devi appeared in witness box as PW11 and stated that the property No. 37/575 Onkar Nagar, Tri Nagar, Delhi, which was in the name of his wife, was never valued and no valuer ever visited the said property. PW11 further stated in his examination in chief that no official or valuer ever came to the said property and he does not know any person by the name of K. G. Saini or M. C. Aggarwal. The contention of accused M.C. Aggarwal is that PW11 is in the business of earning money by mortgaging the said property to different banks in connivance with parties seeking loan. PW11 stated in the CBI Vs. Chetan Sharma & others. Page No.: 93 of 173 :94: CBI Case No.40/11 examination in chief that he had given the sale deed of the said property, Ex.PW8/DX1 to Syndicate Bank, Tilak Nagar Branch for grant of loan for the factory in January 2005. PW11 stated in cross examination that officials from Syndicate Bank visited his property when he had taken the loan. PW11 stated in cross examination by accused M. C. Aggarwal that loan of Syndicate Bank was settled in the year 2010. PW11 denied the suggestion of accused M. C. Aggarwal in the cross examination to the effect that it is his business to earn money by mortgaging his property with different banks in connivance with the parties seeking loan. Although in the cross examination of PW11, accused M. C. Aggarwal has given the suggestion to the effect that he is in the business of earning money by mortgaging his property with different banks but no suggestion has been given to PW11 in the cross examination by accused M. C. Aggarwal that the property bearing No. 37/575 Onkar Nagar, Tri Nagar, Delhi, was mortgaged by him, his wife or any member of his family with Union Bank of India as collateral security for the loan advanced to accused Chetan Sharma. Apart from giving a suggestion to PW11 in the cross examination that he is in the business of mortgaging of his property with different banks to earn money, accused M. C. Aggarwal has not adduced any evidence to prove his contention. PW11 further denied the suggestion of accused M. C. Aggarwal in the cross examination that M. C. Aggarwal and K. G. Saini had visited the property in his presence and prepared a Valuation Report.
CBI Vs. Chetan Sharma & others. Page No.: 94 of 173 :95: CBI Case No.40/11
133. Contention of Ld. PP, CBI is that accused M. C. Aggarwal, was the Chief Manager of the bank at the relevant time and apart from stating in his statement under section 313 Cr. PC that valuation report, Ex.PW20/A (colly) and his inspection of the site report, Ex. PW21/G are matter of record, accused M. C. Aggarwal has not stated that any other official of the bank had also visited the property alongwith him and any letter was issued from the bank by which Shri K. G. Saini was authorized to visit the property and to submit his report and report, Ex. PW20/A (colly) has been prepared by Shri K. G. Saini at the instance of accused M. C. Aggarwal without visiting the property and accused M. C. Aggarwal has also prepared his own false and fabricated site inspection report, Ex. PW21/G.
134. Shri K. G. Saini, who prepared the Valuation Report in respect of property No.37/575 Onkar Nagar, Tri Nagar, Delhi appeared in witness box as PW20 and stated that the valuation report Ex.PW20/A (colly) was prepared by him. PW 20 further stated that he was asked by Mr. Aggarwal, the then Branch Manager of Union Bank of India, Sadar Bazar Branch to evaluate the said property and he was provided with the ownership document i.e. Sale Deed available with the bank. PW20 stated in his examination in chief that he met one Sharma and one lady who was stated to be wife of Mr. Sharma, who was owner of property as mentioned in the property document shown to him by the bank and he inspected the property at CBI Vs. Chetan Sharma & others. Page No.: 95 of 173 :96: CBI Case No.40/11 the instance of Mr. Sharma. In the crossexamination by accused M. C. Aggarwal, PW 20 stated that he did not obtain signatures of said Mr. Sharma and he prepared his report after thorough examination and without being influenced by anyone. As per site visit report and inspection report of accused M. C. Aggarwal, Ex. PW21/G(D19) the property no. 37/575 Onkar Nagar, Tri Nagar, Delhi was also visited by accused M. C. Aggarwal on 12.06.2007. As per Valuation report of Shri K. G. Saini, Ex. PW20/A(colly)(D5), he had also visited the said property on 12.06.2007. In the Valuation Report, Ex. PW20/A(colly)(D5) accused M. C. Aggarwal has signed the certificate at point B thereby stating that he has inspected the property detailed in the said valuation report. In the cross examination of PW20, accused M. C. Aggarwal has not given any suggestion to the effect that accused M. C. Aggarwal had also visited the said property. It is surprising to note that accused M. C.Aggarwal had visited the property No. 37/575 Onkar Nagar, Tri Nagar, Delhi on 12.06.2007 and he also authorized Shri K. G. Saini to conduct the valuation of the said property in pursuance of which Shri K. G. Saini also visited the said property on 12.06.2007 while the application for grant of cash credit limit, Ex. PW21/A was submitted by accused Chetan Sharma on 15.06.2007. Accused M.C. Aggarwal has also not pleaded that Shri K. G. Saini was authorized to conduct the valuation of the property by the bank in its usual course of business and request for valuation of the property was made to him by the sub ordinate officials of the bank which was acceded by him. Shri K.G. CBI Vs. Chetan Sharma & others. Page No.: 96 of 173 :97: CBI Case No.40/11 Saini/PW20 has specifically stated in his examination in chief that he was asked by Mr. Aggarwal, Branch Manager, UBI, Sadar Bazar to evaluate the said property and no suggestion has been given to PW20 in the cross examination by accused M. C. Aggarwal that he was asked by UBI, Sadar Bazar Branch to evaluate the said property in its regular course of business. The evidence on record proves that accused M. C. Aggarwal had prepared fake site visit report and inspection report Ex. PW21/G(D19).
135. The contention of Ld. PP, CBI is that accused M. C. Aggarwal had also prepared false site visit report of property No.21/15, Shakti Nagar, Delhi in pursuance of criminal conspiracy with other accused persons. The site visit report and inspection report of property No. 21/15 Shakti Nagar, Delhi prepared by accused M. C.Aggarwal is Ex. PW21/F(D18) and the valuation report of the said property prepared by PW 2 Shri R. L. Gupta is Ex.PW2/A 1(D14). In his statement under section 313 Cr. PC, accused M. C. Aggarwal was put question to the effect that he gave site visit report and inspection report of mortgaged property dated 1.11.2007 Ex. PW21/F(D18) in respect of property No. 21/15 Shakti Nagar, Delhi to which accused M.C. Aggarwal stated that it is a matter of record. Accused M. C. Aggarwal was also put question in his statement under section 313 Cr. PC that Shri R. L. Gupta had given his valuation report dated 5.11.2007 Ex. PW 2/A1(D14) and the said inspection was done on his asking and in his presence on 1.11.2007 CBI Vs. Chetan Sharma & others. Page No.: 97 of 173 :98: CBI Case No.40/11 and he(M.C. Aggarwal) had introduced Shri R. L. Gupta to the family members/occupants of the said premises and he (M. C. Aggarwal) signed the said report at point B & C and endorsed the same at point B to which accused M. C. Aggarwal replied by stating that it is a matter of record. Accused M. C. Aggarwal further stated in his statement under section 313 Cr. PC that he entered property of Smt. Pushpa Gupta alongwith Shri R. L. Gupta, Valuer of the bank and there were two girls and one lady present in the house and he enquired about Smt. Pushpa Gupta and PW27 Ms. Shalini Gupta introduced herself as daughter of Smt. Pushpa Gupta and Ms. Shalini Gupta introduced him to the lady whose photograph is on bank record present in the house as Smt. Pushpa Gupta. Accused M. C. Aggarwal further stated that in his statement under section 313 Cr. PC that he introduced R. L. Gupta to the family members as Bank's Valuer and who has come to do the valuation of property of Smt. Pushpa Gupta and all the ladies consented for valuation of their property and thereafter Shri R. L. Gupta conducted measurements of the property. Accused M. C. Aggarwal further stated in his statement under section 313 Cr. PC that he gave endorsement at point B on the Valuation Report Ex.PW2/A1 as per procedure of the bank.
136. Smt. Pushpa Gupta, owner of property No.21/15 Shakti Nagar, Delhi appeared in witness box as PW9 and stated that she is residing in property No. 21/15 Shakti Nagar, Delhi which was purchased by her from one Shri Chabil Das vide Ex. PW5/A. PW9 CBI Vs. Chetan Sharma & others. Page No.: 98 of 173 :99: CBI Case No.40/11 further stated that she does not know any person by the name of R. L. Gupta and MC Aggarwal and they never visited her aforesaid property. PW9 stated in her examination in chief that she does not know any person by the name of Chetan Sharma or any firm by the name of M/s Royal Sales Corporation and she has not visited Union Bank of India, Sadar Bazar Branch to mortgage the Sale Deed of her property. PW9 denied the suggestion of accused M.C.Aggarwal in the cross examination that M. C. Aggarwal and R. L. Gupta visited her property on 5.11.2007.
137. Ms. Shalini Gupta, who is daughter of Smt. Pushpa Gupta, appeared in witness box as PW27. PW27 stated in the cross examination by Ld. PP CBI that her mother Smt. Pushpa Gupta was/is owner of property No.21/15, Shakti Nagar, Delhi and she had told the CBI officers that Shri R. L. Gupta and M.C. Aggarwal had never visited their house in the year 2007. PW27 was shown copy of the Election Identity Card Ex. PW27/A(D20) in the name of Smt. Pushpa Gupta on which original photograph of one lady is also pasted at point A and PW27 stated that the photograph as appearing at point A and photograph appearing at point B in copy of Election Identity Card are not photographs of her mother Smt. Pushpa Gupta. In the cross examination by accused M. C. Aggarwal, PW27 stated that in the year 200708 or before or after no bank official has ever visited premises no.21/15, Shakti Nagar, Delhi. In the cross examination of PW27, accused M. C. Aggarwal has given suggestion to the effect that it is also correct that no one even on behalf of any of CBI Vs. Chetan Sharma & others. Page No.: 99 of 173 :100: CBI Case No.40/11 the bank has visited the property No.21/15, Shakti Nagar, Delhi. On one hand, suggestions have been given in the cross examination by accused M. C. Aggarwal to PW27 that M. C. Aggarwal and R. L. Gupta had visited their property on 5.11.2007 and on other hand, another suggestion has been given to the effect that it is also correct that no one even on behalf of any of the bank has visited the property No.21/15, Shakti Nagar, Delhi. As per site visit and inspection report of accused M.C. Aggarwal Ex. PW21/F(D18) he had visited the property on 01.11.2007 and as per valuation report of Shri R. L. Gupta Ex. PW2/A1(D14) the dates of inspection are 20.10.2007 and 01.11.2007 and on the said valuation report accused M. C. Aggarwal has given certificate at point D stating that the property was inspected on 01.11.2007 but in the cross examination of PW 27 suggestion has been given to the effect that the property was inspected by M.C. Aggarwal and Shri R. L. Gupta on 05.11.2007.
138. It is to be noted that in the statement under section 313 Cr. PC accused M. C. Aggarwal has pleaded that at the time of visit of property No.21/15 Shakti Nagar, Delhi by him alongwith Shri R. L. Gupta, Ms. Shalini Gupta was found present who introduced him to the lady whose photograph is on the bank record as Smt. Pushpa Gupta. But in the cross examination of PW27, Ms. Shalini Gupta, no suggestions have been given to the effect that she had introduced M. C. Aggarwal to Smt. Pushpa Gupta as the person, who is owner of the property No.21/15 Shakti Nagar, Delhi at the time of visit of accused M. C. Aggarwal alongwith Shri R. L. Gupta. Neither accused M. C. CBI Vs. Chetan Sharma & others. Page No.: 100 of 173 :101: CBI Case No.40/11 Aggarwal confronted PW27 with any photograph which was on the bank records of the lady who was allegedly identified by PW27 as Smt. Pushpa Gupta as pleaded by him in his statement under section 313 Cr. PC. On one hand, accused M. C. Aggarwal has pleaded in his statement under section 313 Cr. PC that Ms. Shalini Gupta was present at the time of inspection of property No.21/15 Shakti Nagar, Delhi but on being denied the same by PW27, accused M. C. Aggarwal has given suggestion to PW27 in the cross examination that it is correct that sometimes she used to go out of the house also. By giving this suggestion to PW27 in the cross examination, accused M. C. Aggarwal has tried to take plea that PW27 might have gone out of the house at the time of site visit of the property by him.
139. Shri R. L. Gupta/PW2 who is claimed by accused M. C. Aggarwal to have visited the property No.21/15 Shakti Nagar, Delhi alongwith him, was not given any suggestion in the cross examination by the accused M.C. Aggarwal that Ms. Shalini Gupta was found present in the property at the time of their visit, who identified Smt. Pushpa Gupta owner of the property and the lady present in the property consented for valuation of the property. The prosecution has succeeded in proving that accused M.C. Aggarwal had prepared a fake and false site visit report of property No.21/15 Shakti Nagar, Delhi.
140. The contention of accused M. C. Aggarwal is that he has not committed any criminal misconduct and the prosecution has not proved that he has accepted any gratification or has obtained any CBI Vs. Chetan Sharma & others. Page No.: 101 of 173 :102: CBI Case No.40/11 pecuniary advantage. It is further contended by accused M. C. Aggarwal that he has followed the procedure of the bank in relation to grant of cash credit limit and enhancement of cash credit limit to M/s Royal Sales Corporation.
141. Accused M. C. Aggarwal has contended that he was Chief Manager of Scale - IV, Branch and it was not his duty to process the proposal and to check the validity/ financial data and other documents submitted with the application for loan/ limit and this duty is assigned by the bank to officers of Advances and Cash Credit Department in a Scale - IV Branch which has an independent Advances Department.
142. Ld. PP for CBI has contended that none of the procedures relating to opening of the account, documentation, site inspections and norms relating to sanction of cash credit limit were followed in this case by accused M. C. Aggarwal and he abused his official position to procure pecuniary advantage to the accused persons and caused loss to the public sector bank i.e. Union Bank of India, Sadar Bazar Branch, New Delhi. Ld. PP for CBI has further contended that the evidence on record has proved that the account of M/s Royal Sales Corporation was authorized to be opened by accused M. C. Aggarwal on the basis of introduction by Sh. Prem Nath Khanna of M/s Sonata Impex which was a fictitious account in the same bank and accused M. C. Aggarwal had prepared false inspection report dated 26.05.2007 of visit of M/s Royal Sales Corporation although account of M/s Royal Sales Corporation was CBI Vs. Chetan Sharma & others. Page No.: 102 of 173 :103: CBI Case No.40/11 opened on 05.06.2007 and the application for grant of CC limit was submitted by accused Chetan Sharma as proprietor of M/s Royal Sales Corporation on 15.06.2007 and despite directions of the grid to follow due diligence in relation to account of M/s Royal Sales Corporation, accused M. C. Aggarwal enhanced the CC limit to Rs. 1.5 crores on the basis of documents which were known to him were the forged and fabricated documents and he himself actively participated in the entire process by preparing false site visit reports. Ld. PP for CBI has contended that accused M. C. Aggarwal did not follow the procedure as prescribed by the bank and the acts of accused M. C. Aggarwal clearly prove that the accused persons had entered into criminal conspiracy and in pursuance of the same accused M.C. Aggarwal had started creating documents i.e. Inspection Report dated 26.05.2007 of his alleged visit to the factory of M/s Royal Sales Corporation although on that date neither M/s Royal Sales Corporation had any account in Union Bank of India, Sadar Bazar Branch, New Delhi nor M/s Royal Sales Corporation had applied for any CC limit to the said bank.
143. Accused M. C. Aggarwal has raised contention that he has followed the procedure of the bank in relation to account of M/s Royal Sales Corporation and that it was the duty of the Advances and Cash Credit Department to verify the document and he has acted on the basis of scrutiny of the documents and reports obtained by the Advance Department and approval from the grid was also obtained before sanctioning the cash credit limit to M/s Royal Sales CBI Vs. Chetan Sharma & others. Page No.: 103 of 173 :104: CBI Case No.40/11 Corporation and he has not committed any illegality
144. The accused M. C. Aggarwal has pleaded that before sanctioning cash credit limit of Rs. 75 lacs to M/s Royal Sales Corporation, he had obtained approval of the Grid(Regional Office) and has not committed any illegality. The prosecution examined Sh. Vinod Kumar Gupta, the then Special Assistant in Union Bank of India, Sadar Bazar Branch as PW22 who stated in the cross examination by accused M. C. Aggarwal that the power of grant of cash credit limit upto Rs. 50 lacs was that of Chief Manager and beyond the said limit it was power of Regional Office and since in this case the loan limit exceeded Rs. 50 lacs, it was necessary to obtain approval of Regional Office. PW22 further stated in cross examination that accused M. C. Aggarwal informed the Regional Office which in turn approved the same. Accused M. C. Aggarwal has taken the plea that the cash credit limit of Rs. 75 lacs was sanctioned to M/s Royal Sales Corporation on the basis of approval granted by the Regional Office, Credit Approval Grid. The Credit Approval from the grid is Ex.PW21/E(D25). While according the approval for CC limit of Rs.75 lacs, the Credit Approval Grid(Regional Office) has relied upon the report as submitted by the Union Bank of India, Sadar Bazar Branch and has observed regarding collateral securities as:
Collateral Security E/M of residential house No. 99, Onkar Nagar, Tri Nagar, Delhi in the name of Smt. Raman Devi cousin of the Proprietor Shri Chetan Sharma valued CBI Vs. Chetan Sharma & others. Page No.: 104 of 173 :105: CBI Case No.40/11 Rs. 89.57 lacs as per valuation report dated 17.06.07 of K. G. Saini. The firm is having their current account with Delhi State Co-op Bank Ltd. but not enjoying any facility. This Bank is not able to cater the needs of the party and therefore they have approached us for the facility. The unit has been inspected by the Chief Manager on 26.05.2007 and the same was found in working order and the firm has adequate infrastructure to enable productions of copper wires.
The limit of Rs. 75 lacs proposed by the Branch is within 20% of the sales turnover already been done by the Branch during the last two years. Credit Rating : Credit rating is CR - 4 as per audited balance Sheet as on 31.03.06.
In view of the above, we may give principal approval for financing the above referred proposal.
(N. Gopalakrishnan) MANAGER OBSERVATION OF THE GRID The Grid discussed the proposal. In view of growing trend of business and collateral security available is valued Rs. 89.57 lacs against the limit of Rs. 75 lacs sought to be sanctioned by the Branch under BMDP, the Grid endorsed the recommendations of the Branch for according in-principle sanction of the limit.
The Grid desired due diligence enquiry of the party as it is a new connection, and monitor the account effectively.
(N. Gopalakrishnan) (V. P. Bathla)
MEMBER SECRETARY CHIEF MANAGER(C)
Sanctioned
(N. N. CHUAHAN)
ASSTT. GENERAL MANAGER
145. The aforesaid contents of Credit Approval of Grid Ex.PW21/E(D25) show that the grid approved the proposal of the bank for grant of CC limit of Rs.75 lacs to M/s Royal Sales CBI Vs. Chetan Sharma & others. Page No.: 105 of 173 :106: CBI Case No.40/11 Corporation on the basis of report submitted by Union Bank of India, Sadar Bazar Branch regarding creation of equitable Mortgage of Residential House No. 99, Onkar Nagar, Tri Nagar, Delhi in the name of Smt. Raman Devi cousin of the proprietor Sh. Chetan Sharma valued at Rs. 89.57 lacs and that the unit has also been inspected by Chief Manager on 26.05.2007. PW22 was put court question in the crossexamination to the effect that whether Chief Manager in this case acted as merely a rubber stamp after the proposal was put to him by Incharge Advance or he played any role in this case to which PW22 answered by stating that Chief Manager did not act as merely a rubber stamp in this case and it was only after his inspection of the property in question that the proposal was initiated in this case. PW23/Sh. Jang Bahadur Handa, the then Manager (Advances) stated in the crossexamination by accused M. C. Aggarwal that he never visited the property in question physically and it was done by accused M. C. Aggarwal. PW23 further stated in his crossexamination that credit investigation report, based on credit information and unit inspection, carried out by M. C. Aggarwal was written by him as per instructions of M. C. Aggarwal. PW23 also stated in his crossexamination that before the proposal was received in the bank accused M. C. Aggarwal had already visited the unit M/s Royal Sales Corporation which is contrary to practice. PW25 also stated that no inspection could be made prior to the application by the Chief Manager or by any other person of the bank. It is also to be noted that in his statement under Section 313 Cr.P.C. accused M. C. CBI Vs. Chetan Sharma & others. Page No.: 106 of 173 :107: CBI Case No.40/11 Aggarwal has stated that as per bank's guidelines it was duty of Advances Department to ensure proper documentation and as such he did not have any role in the process. But the observations of the Credit Approval Grid(Regional Office) as contained in the Ex.PW21/E(D25) clearly reveal that the Credit Approval Grid(Regional Office) has arrived at the decision of inprinciple sanction of the limit to M/s Royal Sales Corporation on the basis of Inspection Report dated 26.05.2007 of accused M. C. Aggarwal, the then Chief Manager and also on account of equitable mortgage of residential house No.99, Onkar Nagar, Tri Nagar, Delhi in the name of Smt. Raman Devi, who was reported by the Sadar Bazar Branch to the Credit Approval Grid(Regional Office) as cousin of proprietor Mr. Chetan Sharma and on submission of valuation of the said property as Rs.89.57 lakhs. In column 33.1 pertaining to recommendations, in Memorandum of the Competent Autuority for Approval dated 26.05.2007 Ex. PW21/D(colly) (D25) which is signed by accused M. C. Aggarwal at points C & E also, it is stated that the unit was visited by accused M. C. Aggarwal on 26.05.2007 and unit was found working satisfactorily and has adequate staff and office to operate its business and collateral security by the party is a residential property valued Rs.89.57 lacs in the name of Mrs. Raman Devi cousin Mr. Chetan Sharma, Proprietor. However, in the aforesaid discussions, conclusion has been arrived that accused M. C. Aggarwal prepared a fake inspection site report dated 26.05.2007 Ex. PW21/B and conspired in furnishing of forged documents of property CBI Vs. Chetan Sharma & others. Page No.: 107 of 173 :108: CBI Case No.40/11 No.99, Onkar Nagar, Tri Nagar, Delhi for creating equitable mortgage and one female was produced by accused persons, who impersonated as Smt. Rama Devi owner of the said property. PW22 was put court question to the effect that whether the loan in this case would have been approved by the Regional Office if the proposal after scrutiny would have been withheld by the accused M. C. Aggarwal to which PW22 answered by stating 'No'. The aforesaid facts clearly establish that Credit Approval Grid(Regional Office) was made to sanction the CC Limit of Rs.75 Lacs in favour of M/s Royal Sales Corporation on the basis of forged and fabricated documents prepared by accused persons in pursuance of their criminal conspiracy and fake inspection report and site visit report prepared by accused M. C. Aggarwal who abused his official position as Chief Manager of the bank in misleading the grid for obtaining the sanction of Cash Credit Limit in favour of M/s Royal Sales Corporation.
146. Section 13 of the Prevention of Corruption Act, 1988 deals with criminal misconduct by a public servant. Section 13(1) (d) of the Prevention of Corruption Act, 1988 provides:
"13. Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct, ..........
..........
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary CBI Vs. Chetan Sharma & others. Page No.: 108 of 173 :109: CBI Case No.40/11 advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;"
147. In State of Madhya Pradesh Vs. Sheetla Sahai and Ors.
MANU/SC/1425/2009, Hon'ble Supreme Court has been pleased to hold:
53. *.........................................
.........................................* In Inspector Prem Chand v. Govt. of N.C.T. Of Delhi and Ors. 2007 AIR SCW 2532, this Court observed:
In State of Punjab and Ors. v. Ram Singh Ex. Constable MANU/SC/0426/1992 : 1992 (4) SCC 54, it was stated:
Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999, thus:
'A transgression of some established and definite rule of ac tion, a forbidden act, a dereliction from duty, unlawful behav iour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehavior, delin quency, impropriety, mismanagement, offense, but not negli gence or carelessness.' Misconduct in office has been defined as:
Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the officer holder had no right to perform, acts per formed improperly, and failure to act in the face of an affir mative duty to act.
In P. Ramanatha Aiyar's Law Lexicon, 3rd edition, at page 3027, the term 'misconduct' has been defined as under: The term 'misconduot' implies, a wrongful intention, and not a mere error of judgment.
Misconduct is not necessarily the same thing as conduct in volving moral turpitude.
CBI Vs. Chetan Sharma & others. Page No.: 109 of 173 :110: CBI Case No.40/11 The word 'misconduct' is a relative term, and has to be con strued with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statue which is being construed. Misconduct literally means wrong conduct or improper conduct.
148. In Runu Ghosh Vs. C.B.I. CRL.A. 482/2002, CRL.A. 509/2002, CRL. M.A. 1839/2002 & CRL.A. 536/2002, Hon'ble Delhi High Court has been pleased to hold:
"68. Before embarking on a discussion of the case law cited, and the submissions regarding the interpretation of Section 13 (1) (d), it would be essential, at this stage to notice the Statement of Objects and Reasons for the 1988 Act. They are extracted below:
The Bill is intended to make the existing anticorruption laws more effective by widening their coverage and by strengthening the provisions.
2. The Prevention of Corruption Act, 1947, was amended in 1964 based on the recommendations of the Santhanam Com mittee. There are provisions in Chapter IX of the Indian Penal Code to deal with public servants and those who abet them by way of criminal misconduct. There are also provisions in the Criminal Law Amendment Ordinance, 1944, to enable attach ment of illgotton wealth obtained through corrupt means, in cluding from transferees of such wealth. The Bill seeks to in corporate all these provisions with modifications so as to make the provisions more effective in combating corruption among public servants.
3. The Bill, inter alia, envisages widening the scope of the definition of the expression public servant, incorporation of of fences under Section 161 to 165 A of the Indian Penal Code, enhancement of penalties provided for these offences and in corporation of a provision that the order of the trial court up holding the grant of sanction for prosecution would be final if it has not already been challenged and the trial has com menced. In order to expedite the proceedings, provisions for daytoday trial of cases and prohibitory provisions with re CBI Vs. Chetan Sharma & others. Page No.: 110 of 173 :111: CBI Case No.40/11 gard to grant of stay and exercise of powers of revision on in terlocutory orders have also been included.
4. Since the provisions of Section 161 to 165A are incor porated in the proposed legislation with an enhanced punish ment, it is not necessary to retain those sections in the Indian Penal Code. Consequently, it is proposed to delete those sec tions with the necessary saving provision.
5. The notes on clauses explain in detail the provisions of the Bill.
*..................................* *...................................*
130. Now, the expression "abuse" of office by an accused is not new; it has been in the lexicon in the context of corruption laws, for over six and a half decades. The best exposition of what action would be "abuse" is to be found in Narayana Nambiar (supra):
The juxtaposition of the work otherwise' with the words corrupt or illegal means', and the dishonest implicit in the word abuse' indicate the necessity for a dishonest intention on his part to bring him within the meaning of the clause. Whether he abused his position or not depends upon the facts of each case."
149. The case of the prosecution is that firstly accused M.C. Aggarwal sanctioned the CC Limit of Rs.75 Lacs to M/s Royal Sales Corporation on the basis of forged and fabricated documents and thereafter, accused M. C. Aggarwal enhanced the CC Limit to Rs.150 lacs within a short span of time over looking the advice of the Grid(Regional Office) which required him to exercise due diligence, on the basis of forged and fabricated documents and accused M. C. Aggarwal thereby caused further loss to the Public Sector Bank i.e. Union Bank of India.
CBI Vs. Chetan Sharma & others. Page No.: 111 of 173 :112: CBI Case No.40/11
150. After sanctioning of CC Limit of Rs.75 lacs on 04.07.2007 vide letter Ex.PW6/DX(D25), the accused Chetan Sharma as Proprietor of M/s Royal Sales submitted application dated 10.10.2007 Ex.PW22/D(colly) (D25) for enhancement of CC Limit from Rs.75 lacs to 175 lacs in which M/s Royal Sales Corporation has stated that till the month of September, 2007 they have achieved Sales to the tune of Rs.6.03 crores and alongwith the application they also filed schedule of sundry debtors as on 30.09.2007 mentioning therein the debtors as M/s Rajeev Metel, M/s Chetak Cable Company, M/s Power Tech, M/s Excellent Enterprises, M/s Pooja Wire Ltd., M/s Rama Elec. & M/s Gupta Metel and the CC Limit of M/s Royal Sales Corporation was enhanced to Rs.150 lacs vide letter dated 5.11.2007 Ex. PW23/A (D25). The allegation of the prosecution is that the advice of the Grid(Regional Office) in exercising due diligence regarding account of M/s Royal Sales Corporation was not followed and CC limit was enhanced by accused M. C. Aggarwal on the basis of forged and fabricated documents.
151. Accused M. C. Aggarwal has stated in his statement under Section 313 Cr.P.C. that the limit was enhanced on the recommendation of Shri J. B. Handa, Manager and Shri V. K. Gupta, Asstt. Manager of Advances Department. PW22 Shri V. K. Gupta stated in his examination in chief that application for enhancement of the limit Ex. PW22/D (Colly)(D25) under the signatures of accused Chetan Sharma was received and sanction advice, Ex. PW22/E(colly) CBI Vs. Chetan Sharma & others. Page No.: 112 of 173 :113: CBI Case No.40/11 (D25) was prepared by Shri J. B. Handa and is signed by Shri J. B. Handa at point B and is signed by him(PW22) at point C and through the same M. C. Aggarwal enhanced the limit to Rs.150 lacs. PW 23 Shri J. B. Handa stated in examination in chief that the property as per details mentioned in the Ex.PW22/D (Colly) (D25) was inspected for the purpose of assessing valuation and a report Ex.PW2/A2(D14) to that effect was submitted by Shri R. L. Gupta and the same is signed by Shri M. C. Aggarwal at point C and M.C. Aggarwal had also visited the property and had attested the said valuation vide endorsement at point D and legal search report Ex.PW8/D (colly) (D15) was obtained from Shri S. S. Budhiraja advocate and joint note Ex. PW 22/E (colly) (D25) was prepared and thereafter accused Chetan Sharma came with a lady Smt. Pushpa Gupta and submitted a sale deed dated 24.05.71 Ex. DX2(D12). In the cross examination by accused M. C. Aggarwal, PW23 stated that he was bank Manager and looking after Advances Department and other routine work. PW23 denied the suggestion of accused M. C. Aggarwal that he was doing work relating to lending, grant of advances and credit investigation. PW23 further stated in cross examination that in his branch credit investigation was normally done by Chief Manager himself. This part of testimony of PW23 is proved by the fact that all the inspection reports i.e. report dated 26.05.2007 regarding visit to the factory of M/s Royal Sales Corporation Ex.PW21/B (D25), site visit and inspection report of property No. 37/575, Onkar Nagar, Tri Nagar, Delhi Ex.PW21/G (D19) and site CBI Vs. Chetan Sharma & others. Page No.: 113 of 173 :114: CBI Case No.40/11 visit and inspection report of Property No. 21/15, Shakti Nagar, Delhi Ex.PW21/F (D18) were prepared by accused M. C. Aggarwal. PW 23 stated in cross examination that Sh. V. K. Gupta had prepared and typed the proposal of M/s Royal Sales Corporation under the guidance of M. C. Aggarwal and he had never visited the property in question physically and it was visited by accused M. C. Aggarwal. Accused M. C. Aggarwal has raised plea that on the proposal of Sh. J. B. Handa and Sh. V. K. Gupta, he had sanctioned enhancement of limit. It is to be noted that the recommendations Ex.PW23/E (Colly) are based on the the additional security of property No. 21/15, Shakti Nagar, Delhi in the name of Smt. Pushpa Gupta and the visit report of the said property was prepared by accused M. C. Aggarwal and the valuation report of the said property Ex.PW2/A1(D14) has been authenticated and certified by accused M. C. Aggarwal. Note can also be taken of the fact that in order to shift responsibility on Sh. J. B. Handa and Sh. V. K. Gupta, accused M. C. Aggarwal is relying on the recommendations dated 05.11.2007 Ex.PW22/E (Colly) but no explanation has been submitted by accused M. C. Aggarwal that if processing of loan was the job of Advances Department then why he firstly preferred to personally visit the property offered as collateral security rather than getting the same inspected by any official of the Advances Department. Accused M. C. Aggarwal has also authenticated and certified the valuation report Ex.PW2/A1(D14). Accused M. C. Aggarwal was the Chief Manager at the relevant time and was having personal knowledge regarding the status of the CBI Vs. Chetan Sharma & others. Page No.: 114 of 173 :115: CBI Case No.40/11 property which was offered as collateral security for enhancement of CC limit and being senior to Sh. J. B. Handa and Sh. V. K. Gupta he was in a dominant position and once the inspection report of property offered as collateral security was furnished by senior officer i.e. M. C. Aggarwal and also the valuation report of the said property Ex.PW2/A2 certified by accused M. C. Aggarwal was submitted in the Advances Department, in the circumstances, the junior officers cannot question the report submitted by the senior officer and are bound to follow the same, taking the same to be correct. In the circumstances it is not open for accused M. C. Aggarwal to plead that he simply concurred with the proposal of Sh. J. B. Handa and Sh. V. K. Gupta. The aforesaid acts of accused M. C. Aggarwal prove that he abused his official position and thereby facilitated commission of offence.
Siphoning off money
152. The allegations of the prosecutions are that for siphoning off the amount of cash credit limit sanctioned by Union Bank of India, Sadar Bazar Branch, accused Chetan Sharma conspired with accused Vipin Sharma and accused P.K. Aggarwal and transferred part of the amounts in the Current Account No.249 in Delhi State Co operative Bank, Gondha Branch, Delhi53 in the name of M/s Raj Shree Corporation of which accused Chetan Sharma was proprietor, accused Chetan Sharma also transferred the part of the amount of CC Limit from Union Bank of India in the current account No.411 in Canara Bank, Yamuna Vihar, Delhi in the name of M/s Power Tech CBI Vs. Chetan Sharma & others. Page No.: 115 of 173 :116: CBI Case No.40/11 (India) of which also accused Chetan Sharma was the Proprietor. It is further alleged that accused Chetan Sharma also transferred the part of the amount of CC Limit in Current Account No.647 in Delhi State Co operative Bank, Nand Nagri, Delhi in the name of M/s Power Line Industries and also in the Current Account No.3306 in Delhi Nagrik Sehkari Bank Ltd. Yamuna Vihar, Delhi in the name of M/s P. K. Enterprises of which accused P. K. Aggarwal was Proprietor. It is also alleged that accused Chetan Sharma also transferred the part of the amount of CC Limit in Current Account No.2796 in Delhi Nagrik Sehkari Bank Ltd, Yamuna Vihar in the name of M/s Excellent Enterprises of which accused Vipin Sharma was Proprietor. It is further alleged that some funds from aforesaid accounts were rotated by issuing cheques in the name of M/s Royal Sales Corporation while the rest of the funds were siphoned through cheques drawn on self. It is alleged that accused Chetan Sharma also diverted a sum of Rs.10 lacs and invested the same in trading of equity through M/s Share Systems.
153. The contention of Ld. Counsel for accused No.1 to 3 is that there were legitimate business transactions between M/s Royal Sales Corporation and M/s Raj Shree Corporation, M/s Power Tech (India), M/s Power Line Industries, M/s P. K. Enterprises and M/s Excellent Enterprises and there was no siphoning of funds as alleged.
154. PW33 Inspector Ajit Singh stated that he seized certain documents from Mr. Chander Shekhar, clerk of Delhi State Co CBI Vs. Chetan Sharma & others. Page No.: 116 of 173 :117: CBI Case No.40/11 opearative Bank, Gondha, Delhi vide seizure memo Ex. PW33/B19 (Colly) (D28). The account opening form of current account No.249, Delhi State Co operative Bank Ltd. in the name of M/s Raj Shree Corporation is Ex.PW23/P(D29). As per Account Opening Form Ex. PW23/P(D29), the said account was opened on 8.01.2008 by accused Chetan Sharma as proprietor of M/s Raj Shree Corporation. In the statement under section 313 Cr. PC accused Chetan Sharma stated that opening of current account No. 249 on 8.01.2008 by him as Proprietor of M/s Raj Shree Corporation is a matter of record. The Statement of Account of account No.249 of M/s Raj Shree Corporation in Delhi State Cooperative Bank Ltd, for the period from 01.01.2008 to 16.03.2009 is Ex. PW33/B30(D30). The payinslip by which cheque no.773360 for Rs.3 lacs issued from the account of M/s Royal Sales Corporation, Union Bank of India, Sadar Bazar Branch was deposited on 09.04.2008 in the current account No. 249 of M/s Raj Shree Corporation, Delhi State Cooperative Bank Ltd. is Ex. PW33/B31(D31). The Statement of Current Account of M/s Royal Sales Corporation in Union Bank of India alongwith certificate under Section 2A of Banker's Book of Evidence Act, 1891 is Ex.PW33/B2(colly)(D26). As per Statement of Account, Ex. PW33/B2 (colly) the cheque no.773360 for Rs.Three lacs was debited in the account of M/s Royal Sales Corporation, Union Bank of India on 10.04.2008 and as per Statement of Account of account No. 249 of M/s Raj Shree Corporation in Delhi State Co operative Bank Ltd., Ex. PW33/B30 CBI Vs. Chetan Sharma & others. Page No.: 117 of 173 :118: CBI Case No.40/11 the said amount of Rs.three lacs was credited in the said account on 10.4.2008. Ex.PW33/B39 (Colly) are the cheques issued by accused Chetan Sharma as proprietor of M/s Raj Shree Corporation and as per the said cheques which are all drawn on The Delhi State Cooperative Bank Limited, the cheque Nos. 710276 dated 17.01.2008 for Rs. 2,00,000/, 710277 dated 23.01.2008 for Rs. 2,00,000/, 710278 dated 11.02.2008 for Rs. 2,50,000/ are issued in favour of 'self' and the cheque Nos. 710280 dated 29.03.2008 for Rs. 84,350/, 710281 dated 29.03.2008 for Rs.70,650/, 710282 dated 05.04.2008 for Rs. 1,35,400/, 710283 dated 05.04.2008 for Rs. 1,60,500/, 710288 dated 22.06.2008 for Rs. 1,05,670/, 710289 dated 26.06.2008 for Rs. 1,10,540/ and 710290 dated 23.06.2008 for Rs. 83,700/ are issued in favour of M/s Royal Sales Corporation.
155. IO/PW33 Shri Ajeet Singh stated that vide seizure memo Ex.PW33/B26(D62), he seized nine cheques from Union Bank of India which were issued from the account of M/s Royal Sales Corporation and the said nine cheques are Ex.PW33/B35 (colly) (D63). As per Ex. PW33/B35 (colly) (D63) cheque No.773302 dated 11.07.2007 for Rs.40,000/, 773301 dated 11.07.2007 for Rs.1,60,000/, 216417 dated 03.11.2007 for Rs.25,000/, 773350 dated 07.11.2007 for Rs.3,00,000/ were drawn in favour of self by accused Chetan Sharma as Proprietor of M/s Royal Sales Corporation and Cheque Nos. 773327 dated 10.08.2007 for Rs.8,15,100/ was issued in favour of M/s Excellent Enterprises and cheque No. 773328 dated 13.08.2007 for Rs.6,95,400/ was issued in favour of M/s CBI Vs. Chetan Sharma & others. Page No.: 118 of 173 :119: CBI Case No.40/11 Power Line Industries by accused Chetan Sharma as Proprietor of M/s Royal Sales Corporation.
156. PW24 Shri Mukesh Goel stated that he introduced Chetan Sharma in opening of account with Yamuna Vihar Branch and the Account Opening Form of account no.411 in the name of M/s Power Tech (India) in Canara Bank, Yamuna Vihar, Delhi Ex. PW24/A(D37), is signed by him at point A and it bears the photograph of accused Chetan Sharma at point B. PW32 Shri Ramesh Prasad stated that account opening form Ex. PW24/A is signed by him at point C. As per Account Opening form of Account No. 411 in the name of M/s Power Tech (India) in Canara Bank, Yamuna Vihar, Delhi Ex. PW24/A(D37), the same was opened by accused Chetan Sharma as Proprietor of M/s Power Tech (India) on 20.07.2007.
157. PW33 Inspector Ajeet Singh stated that vide production-
cum Seizure Memo Ex.PW33/B9(D58) credit vouchers were seized through which cheque Nos.773361 for Rs.7,40,500/ & 751624 for Rs.50,000/ both drawn on Union Bank of India, Sadar Bazar Branch favouring Power Tech(India) and cheque Nos.839315 for Rs.5,00,000/, 839316 for Rs.5,00,000/, 832377 for Rs.9,13,440/, 839318 for Rs.5,40,000/, 839314 for Rs.3,00,000/ all drawn on Delhi Nagrik Sehkari Bank Ltd., were deposited in CA No.2947201000411 of M/s Power Tech (India) in Canara Bank, Yamuna Vihar, Delhi. The Credit Vouchers/ Current Account CBI Vs. Chetan Sharma & others. Page No.: 119 of 173 :120: CBI Case No.40/11 PayinginSlip by which aforesaid cheques were deposited are Ex. PW33/B10 (colly). The statement of Account of M/s Power Tech (India) in Canara Bank, Yamuna Vihar is Ex. PW32/B(D38) which reflects that the cheques as deposited by payinginslips, Ex.PW 33/B10(colly) were credited in the account of M/s Power Tech (India). PW32 stated that the cheques Ex. PW4/A1 to Ex. PW4/A 19 (D76) are signed by him and all the said cheques were cleared. The details of the cheques Ex. PW4/A1 to Ex. PW4/A19(D76) which were issued by accused Chetan Sharma as proprietor of M/s PowerTech (India) and as seized vide productioncumSeizure Memo, Ex. PW4/A(D75) are as under :
SI. No. Date Cheque No. Amount Favouring
1. 01.09.07 381651 5,00,000 Self
2. 14.09.07 381652 5,00,000 Self
3. 19.09.07 381653 1,50,000 Self
4. 10.10.07 381655 1,00,000 Self
5. 23.01.08 381656 2,00,000 Self
6. 11.02.08 381657 3,00,000 Self
7. 18.02.08 381658 2,50,000 Self
8. 26.02.08 381659 2,00,000 Self
9. 29.02.08 381661 2,00,000 Self
10. 01.03.08 381662 2,00,000 Self
11. 26.02.08 381660 1,00,000 Royal Sales
12. 11.03.08 381663 1,30,500 Do
13. 12.03.08 381664 1,65,650 Do
14. 17.03.08 381665 2,85,000 Self
15. 17.03.08 381668 1,05,000 Royal Sales
16. 18.03.08 381667 1,00,000 Do
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17. 18.03.08 381666 95,000 Do
18. 26.03.08 381669 3,00,000 Self
19. 02.07.08 381673 2,23,650 Royal Sales
158. In the statement under section 313 Cr. PC accused Chetan Sharma was put question to the effect that vide Seizure Memo Ex. PW4/A, IO /PW33 had seized various withdrawal cheques by which money was withdrawn from current account No.411 of M/s Power Tech (India) to which accused Chetan Sharma answered by stating that the withdrawals were for legitimate business purposes.
159. The cheques Ex. PW4/A1 to Ex. PW4/A19(D76) show that the amount from the account of M/s Power Tech (India) which was opened by accused Chetan Sharma was either withdrawn by him through 'self drawn' cheques or the same was transferred to M/s Royal Sales Corporation of which also he was proprietor.
160. The Account Opening Form of the Delhi State Co operative Bank, Nand Nagri Branch, Delhi by which M/s Power Line Industries had opened Current Account Number 647 is Ex.PW17/A (D33). PW17 Sh. Ram Dev Yadav stated that Account Opening Form Ex.PW17/A bears his signatures at point A and the same is signed by Sh. Sanjeev Kumar at points B, C and D, who had introduced the said account. Sh. Sanjeev Kumar introducer of the Account Number 647 of M/s Power Line Industries appeared in CBI Vs. Chetan Sharma & others. Page No.: 121 of 173 :122: CBI Case No.40/11 witness box as PW18 and identified his signatures as appearing at points B, C and D on Account Opening Form Ex.PW17/A. Sh. Raj Pal who was working as Clerk in Delhi State Cooperative Bank, Nand Nagri Branch in the year 2007 appeared in witness box as PW26 and stated that the said form bears photograph of Sh. Pawan Kumar at point A. As per Account Opening Form Ex.PW17/A (D
33), the Current Account No. 647 was opened by accused Pawan Kumar as proprietor of M/s Power Line Industries.
161. PW26 Sh. Raj Pal stated that Cheques Ex.PW3/B1 to Ex.PW3/B62 [D71(162)] were issued by accused Pawan Kumar under his signatures and he passed all the cheques Ex.PW3/B2 to Ex.PW3/B62 and the same bear his initials at point C and the cheque Ex.PW3/B1 was passed by Sh. Man Mohan. The accused persons did not prefer to put any question to PW26 in the crossexamination and his testimony has remained unrebutted.
162. As per cheques Ex.PW3/B1, Ex.PW3/B4, Ex.PW3/B7, Ex.PW3/B8, Ex.PW3/B9, Ex.PW3/B13, Ex.PW3/B29, Ex.PW3/B36, Ex.PW3/B41, Ex.PW3/B54, Ex.PW3/B55 and Ex.PW3/B61 the same were issued by accused Pawan Kumar as proprietor of M/s Power Line Industries in favour of 'Self'. The Cheques Ex.PW3/B2, Ex.PW3/B3, Ex.PW3/B5, Ex.PW3/B6, Ex.PW3/B10, Ex.PW3/B11, Ex.PW3/B12, Ex.PW3/B14 to Ex.PW3/B28, Ex.PW3/B30 to Ex.PW3/B35, Ex.PW3/B38 to Ex.PW3/B40, Ex.PW3/B42 to CBI Vs. Chetan Sharma & others. Page No.: 122 of 173 :123: CBI Case No.40/11 Ex.PW3/B53 and Ex.PW3/B56 to Ex.PW3/B60 the same were issued by accused Pawan Kumar as proprietor of M/s Power Line Industries in favour of M/s Royal Sales Corporation.
163. The cheque bearing No. 030464 dated 15.11.2007 for Rs. 5,00,000/ Ex.PW3/B37 was issued in favour of M/s Share Systems by accused Pawan Kumar as proprietor of M/s Power Line Industries. The cheque Nos. 773304, 773309, 773313, 773317, 773319, 773321, 773323, 773330, 773336, 773339, 773346, 773349, 773352, 773355 and 773356 all drawn on Union Bank of India, Sadar Bazar Branch and issued by accused Chetan Sharma as proprietor of M/s Royal Sales Corporation in favour of M/s Power Line Industries are Ex.PW19/A(Colly) and the payinslips by which the said cheques were deposited in Current Account No. 647 of M/s Power Line Industries in The Delhi State Cooperative Bank Ltd. are Ex.PW17/E (Colly). The statement of accounts for the period 01.06.2007 to 04.03.2009 of Current Account No. 647 of M/s Power Line Industries is Ex.PW17/D and the certificate under Section 2A of the Banker's Books of Evidence Act, 1891 is Ex.PW17/C. In the statement under section 313 Cr. PC, accused Pawan Kumar Aggarwal was put question to the effect that during the period from 12.07.2007 to 17.12.2007 amounts of 15 cheques of Union Bank of India, Sadar Bazar, Delhi (Ex. PW19/A colly) issued by M/s Royal Sales Corporation, were credited in the current account No.647 of M/s Power Line Industries belonging to him vide credit slips/credit CBI Vs. Chetan Sharma & others. Page No.: 123 of 173 :124: CBI Case No.40/11 vouchers Ex. PW17/E (colly) to which accused Pawan Kumar Aggarwal answered by stating that it is a matter of record as the transactions were legitimate business transactions. Accused Chetan Sharma was also put question under section 313 Cr. PC to the effect that during the period 12.07.2007 to 17.12.2007 amounts of 15 cheques of Union Bank of India, Sadar Bazar, Ex. PW19/A (colly) issued by M/s Royal Sales Corporation were credited in the Current Account No.647 of M/s Power Line Industries belonging to co accused Pawan Kumar vide credit slips/credit vouchers Ex.PW17/E (colly) to which accused Chetan Sharma answered by stating that it is a matter of record and the same are legitimate business transactions. Hence both the accused i.e. Pawan Kumar and Chetan Sharma have admitted the transfer of amounts vide cheques Ex. PW19/A(Colly) from the account of M/s Royal Sales Corporation to M/s Power Line Industries.
164. PW33 Sh. Ajeet Singh stated that he seized account opening form of current Account No. 3306 in the name of M/s P. K. Enterprises alongwith specimen signature card, Form 60, copy of ration card and PAN card of Sh. Pawan Kumar, affidavit of Sh. Pawan Kumar Aggarwal and other documents from J. S. Nirala, Junior Clerk, Delhi Nagrik Sehkari Bank Limited, Yamuna Vihar, Delhi vide Memo Ex.PW33/B22 (D40). Sh. J. S. Nirala appeared in witness box as PW10. As per Account Opening Form of Current Account No. 3306, the same was opened by accused Pawan Kumar Agarwal on 17.07.2007 as proprietor of M/s P. K. Enterprises.
CBI Vs. Chetan Sharma & others. Page No.: 124 of 173 :125: CBI Case No.40/11 Accused Pawan Kumar Aggarwal was put question in his statement under Section 313 Cr.P.C. regarding seizure of Account Opening Form of Current Account No. 3306 of M/s P. K. Enterprises with Statement of Account, Credit Voucher etc. by IO/PW33 from J. S. Nirala, Junior Clerk of Delhi Nagrik Sehkari Bank Limited, Yamuna Vihar, Delhi vide Memo Ex.PW33/B22 (D40) to which accused Pawan Kumar Aggarwal answered by stating that he does not know. Accused Pawan Kumar Aggarwal was also put question in the statement under Section 313 Cr.P.C. regarding issuance of various cheques by M/s Royal Sales Corporation from its Current Account in Union Bank of India in favour of various firms namely, M/s Power Line Industries, M/s P. K. Enterprises, M/s Excellent Enterprises, M/s Jai Durge Trading and M/s PowerTech (India) to which accused Pawan Kumar Aggarwal answered by stating that so far as transactions between M/s Royal Sales Corporation and M/s Power Line Industries, M/s P. K. Enterprises are concerned, the same are legitimate business transactions. Accused Pawan Kumar Aggarwal has not rebutted the opening of Current Account No.3306 by him as proprietor of M/s P. K. Enterprises in Delhi Nagrik Sehkari Bank Limited, Yamuna Vihar Branch, Delhi.
165. PW10 Shri J. S. Nirala stated that during the course of investigation, IO had taken some cheques through which money was withdrawn from current account No.3306 of M/s P. K. Enterprises, from his branch in his presence vide ProductioncumSeizure Memo CBI Vs. Chetan Sharma & others. Page No.: 125 of 173 :126: CBI Case No.40/11 Ex.PW10/A(D72) and the said cheques issued from the current account No.3306 of M/s P. K. Enterprises are Ex. PW10/B (colly). Accused Pawan Kumar Aggarwal did not prefer to put any question to PW10 in the crossexamination. In the statement under section 313 Cr. PC, accused Pawan Kumar Aggarwal was put question that on 29.09.2009 PW33 IO Ajeet Singh seized various withdrawal cheque Ex. PW10/B as detailed in the memo from PW10 Shri J. S. Nirala, Jr. Clerk, Delhi Nagrik Sehkari Bank Ltd. vide Seizure Memo Ex.PW10/A, to which accused Pawan Kumar Aggarwal answered by stating that he does not know. Accused Pawan Kumar Aggarwal has not specifically denied the issuance of cheques Ex. PW10/B (colly) by him as Proprietor of M/s P. K. Enterprises.
166. As per cheques Ex. PW10/B(colly), the cheque Nos.
832376 for Rs.2,00,000/, 832384 for Rs.3,00,000/, 832390 for Rs.2,00,000/, 832400 for Rs.3,00,000/, 839176 for Rs.1,00,000/, 839193 for Rs.1,50,000/, 839194 for Rs.1,50,000/,839195 for Rs.1,00,000/, 845126 for Rs.5,00,000/ and 845127 for Rs.5,00,000/ were issued in favour of 'Self' by accused Pawan Kumar as Proprietor of M/s P. K. Enterprises. As per Ex.PW10/B (colly), the Cheques Nos. 832378 for Rs.1,70,900/ , 832380 for Rs.1,36,750/, 832383 for Rs.2,00,000/, 832382 for Rs.1,91,880/, 832386 for Rs.2,33,600/, 832381 for Rs.2,65,640/, 832379 for Rs.2,10,500/, 832387 for Rs.2,30,900/, 832388 for Rs.2,55,310/, 832389 for Rs.2,44,440/, 832391 for Rs.3,31,700/, 832392 for CBI Vs. Chetan Sharma & others. Page No.: 126 of 173 :127: CBI Case No.40/11 Rs.2,30,810/, 832393 for Rs.2,96,140/, 832394 for Rs.2,44,550/, 832395 for Rs.3,09,620/, 832398 for Rs.3,10,200/, 832399 for Rs.3,27,300/, 839177 for Rs.3,10,500/, 839178 for Rs.5,91,000/, 839181 for Rs.3,30,290/, 839179 for Rs.2,18,590/, 839180 for Rs.2,47,120/, 839183 for Rs.2,09,710/, 839184 for Rs.1,81,640/, 839182 for Rs.2,23,450/, 839188 for Rs.3,13,200/, 839190 for Rs.2,05,000/, 839187 for Rs.2,67,100/, 839186 for Rs.2,37,450/, 839192 for Rs.3,96,100/, 839189 for Rs.2,09,000/, 839191 for Rs.3,80,600/, 839198 for Rs.1,30,000/, 839196 for Rs.2,10,500/, 839197 for Rs.1,90,140/ were issued by accused Pawan Kumar as proprietor of M/s P. K. Enterprises in favour of M/s Royal Sales Corporation. As per Ex.PW10/B (colly) Cheque No. 832377 for Rs.9,13,440/ was issued in favour of M/s Power Tech (India), Cheque No. 832396 for Rs.5,00,000/ was issued in favour of M/s Excellent Enterprises and cheque No.839199 for Rs.5,00,000/ Ex. PW24/B was issued in favour of M/s Share Systems by accused Pawan Kumar Aggarwal as Proprietor of M/s P. K. Enterprises. As per Ex. PW33/B37, cheque No.845129 dated 11.01.2008 for Rs.7,11,000/ drawn on Delhi Nagrik Sehkari Bank Ltd. was issued in favour of M/s Raj Shree Corporation by accused Pawan Kumar Aggarwal as Proprietor of M/s P. K. Enterprises.
167. It is to be noted that in his statement under section 313 Cr. PC, accused Pawan Kumar Aggarwal has pleaded that transactions between M/s Royal Sales Corporation and Power Line CBI Vs. Chetan Sharma & others. Page No.: 127 of 173 :128: CBI Case No.40/11 Industries and P. K. Enterprises were legitimate business transactions but in the cross examination of IO/PW33, accused Pawan Kumar Aggarwal has given suggestion to the effect that it is correct that during investigation it came to be known that accused Pawan Kumar Aggarwal was employed with accused Chetan Sharma. By giving this suggestion to PW33 in the crossexamination, accused Pawan Kumar Aggarwal has taken the plea that he was an employee of accused Chetan Sharma. In cross examination of PW33/IO, another suggestion was given by accused Pawan Kumar Aggarwal to the effect that accused Chetan Sharma used to obtain signatures from accused Pawan Kumar Aggarwal on blank cheques and it was accused Chetan Sharma who used to fillup the remaining parts of the cheques and then withdraw the money. Another suggestion has been given by accused Pawan Kumar Aggarwal to the IO/PW33 in the cross examination that accused Chetan Sharma taking the advantage of accused Pawan Kumar Aggarwal falsely entrapped him in this case. By giving aforesaid suggestions to PW33/IO, accused Pawan Kumar Aggarwal has taken defence that he was merely an employee of accused Chetan Sharma and was acting at his behest and accused Chetan Sharma used to fill up the cheques and withdraw money of the said cheques and accused Chetan Sharma has taken advantage of his dominant position being employer of accused Pawan Kumar Aggarwal. The cross examination of IO/PW 33 by accused Pawan Kumar Aggarwal reveals that there was no business transactions between M/s Royal Sales Corporation and P. K. Enterprises and M/s CBI Vs. Chetan Sharma & others. Page No.: 128 of 173 :129: CBI Case No.40/11 Power Line Industries and the amounts which have been transferred between these entities were for the purposes of siphoning off the amount of CC Limit obtained in the account of M/s Royal Sales Corporation in Union Bank of India, Sadar Bazar Branch.
168. Shri Ajeet Singh/PW33 stated that he seized the account opening form of current account No.2796 in the name of M/s Excellent Enterprises from Shri J. S. Nirala, Jr. Clerk, Delhi Nagrik Sehkari Bank Ltd., Yamuna Vihar, Delhi vide Seizure Memo Ex.PW33/B22 (D40). Accused Vipin Sharma was put question in the statement under section 313 Cr. PC to the effect that PW33/IO had seized the documents i.e. Account Opening Form of Current Account No.2796 of his (accused Vipin Sharma) company namely M/s Excellent Enterprises to which accused Vipin Sharma answered by stating that M/s Excellent Enterprise was his firm wherein he was dealing in ferrous and nonferrous metals. Hence, by stating so in the statement under section 313 Cr.PC, accused Vipin Sharma has admitted that he was the Proprietor and Inchage of the business transactions of M/s Excellent enterprises. As per the Account Opening Form of CA No.2796, Delhi Nagrik Sehkari Bank Ltd., Yamuna Vihar, Delhi as seized vide Seizure Memo Ex.PW33/B22, the said account was opened by accused Vipin Sharma as Proprietor of M/s Excellent Enterprises.
169. PW10 Shri J. S. Nirala stated that IO had taken cheques Ex. PW10/C(colly) (D74) pertaining to Account No.2796 in CBI Vs. Chetan Sharma & others. Page No.: 129 of 173 :130: CBI Case No.40/11 the name of M/s Excellent Enterprises from him vide Production cumseizure Memo Ex.PW10/A(D72). In the statement under section 313 Cr. PC, accused Vipin Sharma was put question to the effect that cheques Ex. PW10/C (colly) were seized by IO from Shri J. S. Nirala vide Memo Ex.PW10/A and through these cheques money was withdrawn from Current Account No. 2796 of M/s Excellent Enterprises, which is owned by him(accused Vipin Sharma), to which accused Vipin Sharma answered by stating that regarding seizure he does not know, however, the transactions in question were legitimate business transactions. Hence, the plea which has been taken by the accused Vipin Sharma is that the cheques Ex.PW10/C(colly) (D74) were issued by him as Proprietor of M/s Excellent Enterprises for legitimate business transactions.
170. As per cheques Ex.PW10/C(colly) since 16.07.2007, the cheque Nos. 761172 for Rs.1,50,000/, 761181 for Rs.2,00,000/, 761198 for Rs.3,00,000/, 839302 for Rs.1,00,000/, 839306 for Rs.75,000/, 839308 for Rs.2,50,000/ were issued in favour of 'Self' by accused Vipin Sharma as Proprietor of M/s Excellent Enterprises and the Cheque Nos.761171 for Rs.1,40,100/, 761170 for Rs.2,10,650/, 761173 for Rs.1,85,900/, 761174 for Rs.1,77,850/, 761180 for Rs.2,10,700/, 761179 for Rs.1,47,130/, 761182 for Rs.2,60,000/, 761183 for Rs.2,10,700/, 761184 for Rs.1,93,640/, 761185 for Rs.1,30,140/, 761188 for Rs.2,00,900/, 761186 for Rs.1,43,290/, 761189 for Rs.2,19,100/, 761187 for Rs.2,36,710/, 761190 for Rs.5,72,800/, 761192 for Rs.2,76,370/, CBI Vs. Chetan Sharma & others. Page No.: 130 of 173 :131: CBI Case No.40/11 761193 for Rs.8,41,600/, 761194 for Rs.3,00,000/, 761195 for Rs.2,05,655/, 761196 for Rs.2,10,670/, 761197 for Rs.2,88,150/, 761199 for Rs.2,35,160/, 839301 for Rs.2,76,300/, 839305 for Rs.1,36,400/, 839303 for Rs.1,74,280/, 839304 for Rs.2,10,700/, 839310 for Rs.80,575/, 839309 for Rs.1,21,500/, 839313 for Rs.1,21,130/, 839312 for Rs.1,54,550/ and 839311 for Rs.1,30,400/ were issued by accused Vipin Sharma as Proprietor of M/s Excellent Enterprises in favour of M/s Royal Sales Corporation.
171. As per Ex.PW10/C (colly) Cheque No. 761178 dated 23.07.2007 for Rs.4,72,000/ was issued in favour of M/s Power Tech(India), Cheque Nos. 761191 dated 29.08.2007 for Rs.5,00,000/, 761200 dated 24.09.2007 for Rs.8,00,000/ & cheque 839307 dated 10.10.2007 for Rs.4,53,000/, were issued in favour of M/s P. K. Enterprises by accused Vipin Sharma as Proprietor of M/s Excellent Enterprises.
172. Shri Ajeet Singh PW33 stated that vide Productioncum Seizure Memo Ex.PW33/B27(D64), he had seized from Shri J. S. Nirala, Jr. Clerk, Delhi Nagrik Sehkari Bank Ltd. credit vouchers/ payinslips through which cheques were deposited in Current Account No.2796 and also cheques issued from the said Current Account No.2796. PW33 further stated that two Credit Vouchers seized vide memo Ex. PW33/B27 are Ex.PW33/B36(colly)(D65) and the seven cheques seized vide memo Ex.PW33/B27 are Ex.
CBI Vs. Chetan Sharma & others. Page No.: 131 of 173 :132: CBI Case No.40/11 PW33/B37. Accused Vipin Sharma was put question in the statement under section 313 Cr.PC to the effect that vide Seizure Memo Ex.PW33/B27, PW33 had seized credit voucher/payinslips and withdrawal cheques from Shri J. S. Nirala, Jr. Clerk, Delhi Nagrik Sehkari Bank Ltd. to which accused Vipin Sharma answered by stating that he does not know. Accused Vipin Sharma was also put question in statement under section 313 Cr PC to the effect that PW33/IO Ajeet Singh had seized two credit vouchers Ex. PW33/B36 (colly) and seven cheques Ex.PW33/B37 from Delhi Nagrik Sehkari Bank Ltd., Yamuna Vihar, Delhi to which accused Vipin Sharma answered by stating that he does not know. Accused Vipin Sharma has not specifically denied the seizure of the credit vouchers/payin slips Ex.PW33/B36(colly) and cheques Ex.PW33/B37 vide memo Ex.PW33/B27 and accused Vipin Sharma has also not denied that cheques, as mentioned in payinslips/ credit vouchers Ex. Pw33/B36 (colly) were deposited in the Current Account No. 2796 of M/s Excellent Enterprises and cheques Ex. PW33/B37 were issued by him as Proprietor of M/s Excellent Enterprises from the Current Account No.2796 in Delhi Nagrik Sehkari Bank Ltd. As per payin slip/credit voucher Ex.PW33/B36 (colly), cheques bearing nos.773327 for a sum of Rs.8,15,000/ & No.773332 for Rs.11,70,200/ both drawn on Union Bank of India, Sadar Bazar, Delhi were deposited on 11.08.2007 and 05.09.2007 respectively in the current account No.2796 of M/s Excellent Enterprises.
CBI Vs. Chetan Sharma & others. Page No.: 132 of 173 :133: CBI Case No.40/11
173. As per cheque Ex.PW33/B37, cheque Nos.839314 dated 17.01.2008 for Rs.3,00,000/, 839315 dated 23.01.2008 for Rs.5,00,000/, 839316 dated 05.01.2008 for Rs.5,00,000/ and 839318 dated 18.02.2008 for Rs.5,40,000/ were issued in favour of M/s Power Tech(India) by accused Vipin Sharma as Proprietor of M/s Excellent Enterprises and cheque no. 839317 dated 18.02.2008 for Rs.2,50,000/ was issued in favour of 'Self' by accused Vipin Sharma as Proprietor of M/s Excellent Enterprises. As per Ex. PW33/B37(colly), Cheque no.845128 dated 22.12.2007 for Rs.19,60,000/ drawn on Delhi Nagrik Sehkari Bank Ltd was issued by Pawan Kumar Aggarwal as Proprietor of M/s P. K. Enterprises in favour of M/s Excellent Enterprises. This transfer of money from M/s P. K. Enterprises to M/s Excellent Enterprises is to be seen in the light of crossexamination of PW33/IO conducted by accused Pawan Kumar Aggarwal wherein accused Pawan Kumar Aggarwal has taken defence that he was merely an employee of accused Chetan Sharma and was acting at his behest and accused Chetan Sharma used to fill up the cheques and withdraw money of the said cheques. This plea of accused Pawan Kumar Aggarwal also proves that M/s Power Line Industries and M/s P. K. Enterprises were not doing any business and were merely created in conspiracy with accused Chetan Sharma to siphon off the amount of CC limit received from Union Bank of India, Sadar Bazar Branch.
174. It is to be noted that in the statement under section 313 CBI Vs. Chetan Sharma & others. Page No.: 133 of 173 :134: CBI Case No.40/11 Cr.PC, accused Vipin Sharma has pleaded that he was running legitimate business in ferrous and nonferrous metals and transactions between his firm and that of accused Chetan Sharma were legitimate business transactions. But as per evidence, as discussed above, there was exchange of money between M/s Excellent Enterprises and M/s P. K. Enterprises & M/s Power Tech (India) also apart from exchange of money with M/s Royal Sales Corporation. The evidence on record has also proved that entire exchange of money between M/s Excellent Enterprises, M/s Royal Sales Corporation, M/s Power Tech (India) and M/s P. K Enterprises has taken place during the period when cash credit limit was sanctioned to M/s Royal Sales Corporation by Union Bank of India, Sadar Bazar Branch. Accused Vipin Sharma has not substantiated his plea of legitimate business transactions between M/s Excellent Enterprises and M/s Royal Sales Corporation by any cogent evidence. Accused Vipin Sharma has also not adduced evidence to prove his defence of innocence or legitimate business transactions in the exchange of money which took place between M/s Excellent Enterprises and M/s Power Tech(India) and M/s P. K. Enterprises. The transactions of exchange of money which took place between M/s Excellent Enterprises, M/s Royal Sales Corporation, M/s P. K. Enterprises and M/s Power Tech(India) clearly prove that same were not for purpose of any legitimate business but for the purpose of siphoning off of the amount of CC Limit obtained in the account of M/s Royal Sales Corporation from Union Bank of India, Sadar Bazar Branch, Delhi.
CBI Vs. Chetan Sharma & others. Page No.: 134 of 173 :135: CBI Case No.40/11
175. Another allegation of the prosecution is that accused Chetan Sharma had diverted the part of the amount of cash credit limit received in the account of M/s Royal Sales Corporation, Union Bank of India, Sadar Bazar, Delhi for purposes other than the purpose for which said CC Limit was availed by investing in shares.
176. Shri Mukesh Goel/PW24 stated that accused Chetan Sharma had shares account with him and he had introduced accused Chetan Sharma while opening the account in Canara Bank, Yamuna Vihar, Delhi and the Account Opening Form Ex. PW24/A is signed by him at point A. PW24 further stated that cheque Ex. PW24/B {D73 (47)} was received by him from accused Chetan Sharma and said cheque was deposited by him in his account 'Share Systems'. PW24 further stated that perhaps one more cheque probably for Rs.5 lacs was also received from accused Chetan Sharma which was encashed by him in his account and the aforesaid cheques were given to him for trading in shares. The cheque Ex. PW24/B bearing No.839199 dated 14.11.2007 for Rs.5 lacs drawn on Delhi Nagrik Sehkari Bank Ltd. is issued from the Current Account no.3306 by accused P. K. Aggarwal as Proprietor of M/s P. K. Enterprises. PW24 specifically stated in his examination chief that cheque Ex. PW24/B was given to him by accused Chetan Sharma for trading in shares and he does not know M/s P. K. Enterprises. In the cross examination, PW24 stated that he was not dealing in copper at the relevant time CBI Vs. Chetan Sharma & others. Page No.: 135 of 173 :136: CBI Case No.40/11 and he never had any business with accused Chetan Sharma. PW24 further stated in cross examination that accused Chetan Sharma never traded in shares of copper, thereafter he voluntarily stated that accused Chetan Sharma never asked for the shares relating to copper industry. In the cross examination of PW24, accused Chetan Sharma has given suggestion to the effect that PW24 was dealing in copper business and had taken the cheques from accused Chetan Sharma for the purpose of copper business only. In the statement under section 313 Cr.PC, accused Chetan Sharma was put question to the effect that he had given cheque Ex. PW24/B for a sum of Rs.5 lacs to PW24 Shri Mukesh Goel for trading in shares and the said cheque was deposited by Shri Mukesh Goel in the account of his company 'Share Systems' to which accused Chetan Sharma answered by stating that it is a matter or record and the cheque was given for legitimate business transactions. By giving suggestion to PW24 in the cross examination to the effect that cheque Ex.PW24/B was given for purpose of copper business by accused Chetan Sharma to PW24 Shri Mukesh Goel, accused Chetan Sharma has admitted that the cheque Ex.PW24/B, which is issued from current account no.3306 of M/s P. K. Enterprises of which accused Pawan Kumar Aggarwal is the Proprietor, was given by him to PW24. This suggestion of accused Chetan Sharma to PW24 also fortifies the allegation of prosecution that current account No.3306 in the name of M/s P. K. Enterprises has been opened by accused Pawan Kumar Aggarwal in conspiracy with accused Chetan Sharma in order to siphon off the amount of CC CBI Vs. Chetan Sharma & others. Page No.: 136 of 173 :137: CBI Case No.40/11 Limit received in the account of M/s Royal Sales Corporation.
177. The allegation of prosecution that accused Chetan Sharma was siphoning off the part of the amount of CC limit obtained from Union Bank of India by investing in share gets proved also from the evidence on record i.e. cheque No. 030464, dated 15.11.2007, for Rs. 5,00,000/ Ex. PW3/B37 [D71 (37)] which was also issued in favour of M/s Share Systems by accused Pawan Kumar Aggarwal as proprietor of M/s Power Line Industries and accused Pawan Kumar Aggarwal has not pleaded that he was independently trading in shares but has rather pleaded that he was merely an employee of accused Chetan Sharma and was acting at his behest and accused Chetan Sharma used to fill up the cheques and withdraw the money of the said cheques, by giving such suggestions to PW33/IO.
178. Prosecution has also alleged that a sum of Rs.8 lacs was siphoned off through the account of M/s Clear Trade International by the accused Chetan Sharma. Prosecution examined PW7 Nikhil Arora who is stated to have opened account in the name of M/s Clear Trade International in ABN Amro Bank. PW7 stated that vide deposit slip dated 17.7.2007 Ex.PW7/A, a sum of Rs.8 lacs was deposited in the account of Clear Trade International by one Shashi Budhiraja and thereafter, he gave him cash of Rs.2,05,000/ and Cheques of Rs.4,65,000/ and Rs.1,29,00 in lieu of aforesaid cheque. In the statement under section 313 Cr. PC, accused Chetan Sharma CBI Vs. Chetan Sharma & others. Page No.: 137 of 173 :138: CBI Case No.40/11 was put question to the effect that vide deposit slip of ABN Amro Bank dated 17.07.2007 Ex. PW7/A(D82), an amount of Rs.8 lacs was deposited by Shashi Budhiraja in the account No.1152729 of M/s Clear Trade International belonging to PW7 Shri Nikhil Arora and the said amount was given back to Shashi Budhiraja to which accused Chetan Sharma answered by stating that he does not know any person by the name of Shashi Budhiraja, however, the cheque was given to third party for legitimate business purpose as endorsement cheque. It is contended by accused persons that neither Shashi Budhiraja, who is alleged to have deposited the sum of Rs.8 lacs in the account of Clear Trade International, has been examined nor prosecution has proved the receipt of Rs.2,05,000/ and cheques of Rs.4,05,000/ and Rs.1,29,000/ by Shashi Budhiraja from Nikhil Arora. Prosecution has not examined said Shashi Budhiraja, who had allegedly deposited cheque of Rs.8 lacs in the account of Clear Trade International in order to prove the relation of Shashi Budhiraja with M/s Royal Sales Corporation and how Shashi Budhiraja came in possession of the cheque for the sum of Rs.8 lacs from M/s Royal Sales Corporation and whether it was on account of his business dealing with M/s Royal Sales Corporation or the said amount was received for the purpose of siphoning off. Shashi Budhiraja has also not been examined to prove that he had received the cash amount of Rs. Rs.2,05,000/ and two cheques of Rs.4,65,000/ & Rs.1,29,000/ from PW7 Nikhil Arora in lieu of the cheque of Rs.8 lacs deposited in the account of M/s Clear Trade CBI Vs. Chetan Sharma & others. Page No.: 138 of 173 :139: CBI Case No.40/11 International. The prosecution has failed to substantiate its allegation of siphoning off of a sum of Rs.8 lacs from the account of M/s Royal Sales Corporation through M/s Clear Trade International.
179. The contention has been raised on behalf of accused M. C. Aggarwal that the Sanctioning Authority has committed error while granting sanction of his prosecution as the acts alleged against accused M. C. Aggarwal did not constitute any offence and the Sanctioning Authority did not apply mind to the facts of the case and granted sanction in a mechanical manner.
180. Section 19 of the Prevention of Corruption Act, 1988 provides necessity of previous sanction for prosecution of a public servant.
181. A public servant occupies office which renders him a public servant and occupying the office carries with it the powers conferred on the office. Power generally is not conferred on an individual person. In a society governed by rule of law power is conferred on office or acquired by statutory status and the individual occupying the office or on whom status is conferred enjoys the power of office or power flowing from the status. The holder of the office alone would have opportunity to abuse or misuse the office. It is holding of the office which gives an opportunity to use it for corrupt motives. Therefore, the corrupt conduct is directly attributable and flows from the power conferred from the office. This interrelation CBI Vs. Chetan Sharma & others. Page No.: 139 of 173 :140: CBI Case No.40/11 and interdependence between individual and the office he holds is substantial and not severable.
182. In Prakash Singh Badal and another V. State of Punjab and others, (2007) 1 Supreme Court Cases 1, Hon'ble Supreme Court has been pleased to hold :
"20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.
21. In other words, where the act performed under the colour of office is for the benefit of the officer or for his own pleasure Section 19(1) will come in. Therefore, Section 19(1) is time and offence related.
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47. The sanctioning authority is not required to separately specify each of the offences against the accused public servant. This is required to be done at the stage of framing of charge. Law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalised guidelines in that regard."
183. The Sanctioning Authority Shri Uday Balkrishan Rairikar appeared in witness box as PW1 and stated that before CBI Vs. Chetan Sharma & others. Page No.: 140 of 173 :141: CBI Case No.40/11 according sanction, he had gone through the statements of witnesses and documents and also a report of CBI and he also applied his mind and accorded sanction for prosecution vide Sanction Order Ex. PW1/A. In the statement under section 313 Cr. PC, accused M. C. Aggarwal has pleaded that PW1 did not apply his mind while granting sanction and has wrongly referred to terms of Circular No.310 of 2007(D87) as the said circular is for take over of accounts and not for new accounts.
184. In the crossexamination by accused M. C. Aggarwal, PW1 stated that he was the competent authority to remove the accused M. C. Aggarwal and he was competent to grant sanction and further stated that in this particular matter, the initiative was done at the branch level by accused M. C. Aggarwal and the officers who were in the Credit Department. PW1 further stated in cross examination that he has mentioned in the Sanction Order that it is the duty of the Branch Manager to process the application. Accused M. C. Aggarwal has pleaded that PW1 has wrongly referred to Circular No.310 of 2007 of Union Bank of India(D87). It is to be noted that in the crossexamination, PW1 was confronted by accused M. C. Aggarwal with the Circular No.310 of 2007 Ex. PW1/D1 and PW1 stated that language from portion A to A in the said circular means what has been stated by him in the Sanction Order. The portion A to A of Circular No.310 of 2007 Ex. PW1/D1 (D87) reads as:
"Therefore, it is incumbent upon the Branch Head to CBI Vs. Chetan Sharma & others. Page No.: 141 of 173 :142: CBI Case No.40/11 make thorough market enquiries about such promoters before submitting a proposal to the competent authority for sanction/take over."
185. It is to be noted that accused M. C. Aggarwal had himself confronted PW1 with the Circular Ex. PW1/D1 in the cross examination and after going through the contents of the same he has stated that the language of the said circular from portion A to A as noted above, conveys the same meaning as mentioned by him in the Sanction Order Ex. PW1/A.
186. In the crossexamination PW1 was put question by accused M. C. Aggarwal as to what corrupt or illegal means, accused M. C. Aggarwal adopted, to which PW1 answered by stating that in this particular case, right from initiation - establishment of unit till sanction and release of funds, the cautions were thrown to winds, never thought of complied with due diligence and thereby exposing the bank to loss, were the corrupt and illegal means adopted by accused M. C. Aggarwal.
187. Accused M. C. Aggarwal has relied upon the Book of Instructions, Volume III, Annexures, Annexure I of the Union Bank of India Ex. DW2/B (colly), which provides roles and duties of Managers of different levels. Ex.DW2/B (colly) provides that the Manager of an exceptionally large branch shall be totally responsible for the management of the branch and further provides that he will CBI Vs. Chetan Sharma & others. Page No.: 142 of 173 :143: CBI Case No.40/11 examine important books of accounts at least once in a quarter and he will also conduct regular examinations of books/registers relating to advances and satisfy himself that the operations in the accounts of borrowers(especially large borrowers) are satisfactory. Ex.DW2/B (colly) further provides that the Manager shall analyse the fresh borrowal proposal received by the branch and this analysis will extend to all financial statements (including balance sheet) record of business (if a running concern) and prevailing market conditions.
188. It is contended by Ld. PP, CBI that as per Circular Ex.
DW2/B (colly) also, it was the duty of the accused M. C. Aggarwal to have analysed the proposal of CC Limit of M/s Royal Sales Corporation and to have conducted thorough enquiry of the documents submitted alongwith the said proposal but accused M. C. Aggarwal did not conduct any enquiry on the documents submitted alongwith the proposal and the said documents have been found to be forged and fabricated.
189. As per Ex.PW22/A (colly) accused Chetan Sharma had submitted documents alongwith his application for grant of CC Limit which included Audit Report for the year 200506, Balance Sheet for the year 200506, provisional Balance Sheet for the year 2007, IT Return for the year 200506 and registration certificate of M/s Royal Sales Corporation with the Office of Commissioner of Industries. In the statement under section 313 Cr. PC, accused M. C. Aggarwal CBI Vs. Chetan Sharma & others. Page No.: 143 of 173 :144: CBI Case No.40/11 stated that submission of application Ex. PW 22/A alongwith enclosures (Pages 1 76) by accused Chetan Sharma is a matter of record. Accused M. C. Aggarwal has not stated that he made any effort to verify the documents or the claims made in the said documents, which were submitted by accused Chetan Sharma alongwith application Ex. PW22/A by making any independent enquiry in terms of his responsibility as mentioned in Ex.DW2/B (colly). It is to be noted that the accused M. C. Aggarwal could have ascertained from the Chartered Accountants, the documents prepared by whom were submitted by accused Chetan Sharma regarding authenticity of the said documents and veracity of the claims made in the said documents but accused M. C. Aggarwal has not pleaded that he made any efforts to verify the claims as made in the said documents. Alongwith the application Ex. PW22/A, accused Chetan Sharma had submitted Income Tax Returns(Saral Forms) for the Assessment Year 200506 and 200607 which reflected income of accused Chetan Sharma from the business and profession as Rs.2,01,312/ per annum and Rs.3,39,271/ per annum respectively. It has not been explained as to how the proposal for grant of CC Limit of Rs.One Crore was processed on the basis of IT Returns which exhibited income of Rs.2,01,312/per annum and Rs.3,39,271/ per annum respectively. Accused M. C. Aggarwal has not proved that due diligence was exercised while processing the proposal for grant of CC Limit in pursuance of application Ex. PW22/A. It is also to be noted that Grid while giving in principle approval for grant CBI Vs. Chetan Sharma & others. Page No.: 144 of 173 :145: CBI Case No.40/11 of CC Limit to M/s Royal Sales Corporation had advised to conduct due diligence enquiry vide Ex.PW21/E but thereafter, within a short period of time another proposal dated 10.10.2007 of M/s Royal Sales Corporation for enhancement of CC Limit was received which is Ex.PW22/D (colly) in which the claim was made by M/s Royal Sales Corporation that till the month of September, 2007 they had achieved sales to the tune of Rs.6.03 crores and alongwith the said proposal a list of sundry debtors was also filed. It has not been proved that any efforts were made by accused M. C. Aggarwal as Branch Head to verify the claims as made in the proposal dated 10.10.2007 or the documents appended to the said proposal Ex.PW22/D (colly), which shows that the advice of the Grid for observing due diligence regarding account of M/s Royal Sales Corporation was not followed by accused M. C. Aggarwal with dishonest intention. The recommendation for sanction of enhancement of CC Limit Ex. PW 22/E shows that the same has been processed only on the basis of additional security of property No.21/15, Shakti Nagar, Delhi, which also shows that with dishonest intention no efforts were made to verify the claims as made in the proposal dated 10.10.2007 Ex.PW22/D and due diligence as advised by the Grid vide Ex.PW21/E was not observed. In view of the aforesaid discussion, I find that the Sanctioning Authority had accorded the sanction to prosecute the accused M. C. Aggarwal with due application of mind and on correct appreciation of the facts and material placed before it and there is no illegality or malafide in the grant of sanction for CBI Vs. Chetan Sharma & others. Page No.: 145 of 173 :146: CBI Case No.40/11 prosecution of accused M. C. Aggarwal.
190. All accused persons have been charged for the offence under section 120B IPC for entering into criminal conspiracy for the purpose of causing wrongful loss to Union Bank of India and wrongful gain to themselves and in pursuance of the same forged and fabricated documents of the property no.37/575, Onkar Nagar, Tri Nagar, Delhi and 21/15, Shakti Nagar, Delhi were submitted by them to Union Bank of India, Sadar Bazar for grant of CC Limit of Rs.75 lacs and for further enhancement of said CC Limit to Rs.150 lacs in favour of M/s Royal Sales Corporation and Union Bank of India was thereby dishonestly and fraudulently induced to sanction CC Limit of Rs.75 lacs and to further enhance the CC Limit to Rs.150 lacs.
191. In State of Madhya Pradesh Vs. Sheetla Sahai and Ors.
MANU/SC/1425/2009, Hon'ble Supreme Court has been pleased to hold:
49.Criminal conspiracy has been defined in Section 120A of the Indian Penal Code, 1860 to mean:
When two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit CBI Vs. Chetan Sharma & others. Page No.: 146 of 173 :147: CBI Case No.40/11 an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation. It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
Section 120B of the Indian Penal Code provides for punishment for criminal conspiracy.
50. Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused.
51. A criminal conspiracy must be put to action inasmuch as so long a crime is generated in the mind of an accused, it does not become punishable. What is necessary is not thoughts, which may even be criminal in character, often involuntary, but offence would be said to have been committed thereunder only when that take concrete shape of an agreement to do or cause to be done an illegal act or an act which although not illegal by illegal means and then if nothing further is done the agreement would give rise to a criminal conspiracy.
Its ingredients are CBI Vs. Chetan Sharma & others. Page No.: 147 of 173 :148: CBI Case No.40/11
(i) an agreement between two or more persons;
(ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means.
What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means.
52. While saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence.
In Kehar Singh and Ors. v. State (Delhi Administration) MANU/SC/0241/1988 : 1988 (3) SCC 609 at 731, this Court has quoted the following passage from Russell on Crimes (12th Edn. Vol 1):
The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere Knowledge, or even discussion, of the plan is not, per se enough.
In State (NCT) of Delhi v. Naviot Sandhu @ Afsan Guru MANU/SC/0465/2005 : (2005) 11 SCC 600, this Court stated the law, thus:
101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in CBI Vs. Chetan Sharma & others. Page No.: 148 of 173 :149: CBI Case No.40/11 determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution."
192. Accused M.C. Aggarwal has contended that it has not been proved that he obtained any pecuniary advantage and his case can be considered as an error of judgment and he is entitled to benefit of doubt and has relied upon decisions in Rajeev Kumar Goyal @ Raj Kumar Goyal V. State through CBI, 2014(7) AD(Delhi) 667 and John Pandian V. State, MANU/SC/1025/2010.
193. The perusal of the judgments of Rajeev Kumar Goyal @ Raj Kumar Goyal V. State through CBI(supra) and John Pandian V. State(supra) as relied by the accused M. C. Aggarwal shows that the decisions of same are of no help to him as in the present case the abuse of the official position by accused M. C. Aggarwal in criminal conspiracy with other accused persons, right from the initiation of the transactions commencing from inspection report dated 26.05.2007 CBI Vs. Chetan Sharma & others. Page No.: 149 of 173 :150: CBI Case No.40/11 Ex.PW21/B, opening of account of M/s Royal Sales Corporation by introduction of fictitious account of M/s Sonata Impex, submission of collateral securities on the basis of fake, forged & fabricated documents, preparation of false site visit reports by accused M. C. Aggarwal, sanction of CC Limit to M/s Royal Sales Corporation, enhancement of CC Limit, has been clearly proved.
194. The evidence on record has proved that all the accused persons had entered into criminal conspiracy in order to cause wrongful loss to Union Bank of India and wrongful gain to themselves and prior meeting of mind itself gets proved from the fact that even before opening of account by accused Chetan Sharma in Union Bank of India on 5.06.2007 and making application for grant of CC Limit on 15.06.2007, accused M. C. Aggarwal had prepared the inspection report on 26.05.2007 of the alleged factory premises of M/s Royal Sales Corporation at 1/342, Gali No.1, Friends Colony, Industrial Area, Shahdara, Delhi. The prosecution has proved beyond reasonable doubts the criminal conspiracy hatched by the accused persons. Consequently, all accused persons are liable to be convicted for the offence punishable under section 120B IPC.
195. Accused Chetan Sharma was also charged for the offences under section 467 & 468 IPC. Section 467 IPC provides punishment for person who forges the documents which purports to be a valuable security or a will, or an authority to adopt a son, or CBI Vs. Chetan Sharma & others. Page No.: 150 of 173 :151: CBI Case No.40/11 which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereupon, or to receive or to deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or any acquittance or receipt for the delivery of any movable property or valuable security.
196. Section 468 IPC provides that whoever commits forgery, intending that the documents or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
197. During the course of arguments, Ld. PP, CBI has conceded that offences under sections 467 & 468 IPC are not proved against the accused Chetan Sharma as prosecution has not been able to prove that the documents in question were forged by him.
198. Accused Chetan Sharma was also charged for offence under section 471 IPC for using as genuine the forged, false and fabricated documents i.e. hypothecation agreements of goods & debts, letter of guarantee, affidavit and sale deeds of property described as 37/575, Onkar Nagar Extension and also forged and fabricated documents of the property No.21/15, Shakti Nagar, Delhi.
CBI Vs. Chetan Sharma & others. Page No.: 151 of 173 :152: CBI Case No.40/11 The prosecution has succeeded in proving that the accused Chetan Sharma has used the forged, false and fabricated documents i.e. Audit Report of M/s Royal Sales Corporation for the Assessment year 200506 dated 28.07.2005 under section 44 AB of the Income Tax Act 1961 and the Balance Sheet for the assessment year 200506, Provisional Balance Sheet for the year 2007 purportedly issued by M/s Singhal & Company, Chartered Accountants, copy of certificate dated 21.05.2001 purportedly issued by Office of Commissioner of Industries in favour of M/s Royal Sales Corporation and by furnishing false, forged & fabricated Sale Deed of property No.37/575, Onkar Nagar, Tri Nagar, Delhi in the name of Ms. Raman Devi @ Rama Devi and by furnishing false, forged & fabricated Sale Deed of property No.21/15, Shakti Nagar, Delhi in the name of Smt. Pushpa Gupta for the purpose of creating equitable mortgage in favour of Union Bank of India and thereby committed the offence punishable under section 471 IPC.
199. Accused Chetan Sharma has also been charged for the offence under section 419 IPC for cheating Union Bank of India by impersonating one lady as Smt. Raman Devi @ Rama Devi, owner of property no. 37/575, Onkar Nagar, Tri Nagar, Delhi and another lady (not arrested) as Smt. Pushpa Gupta, Owner of property No. 21/15, Shakti Nagar, Delhi.
200. Section 419 IPC reads as:
CBI Vs. Chetan Sharma & others. Page No.: 152 of 173 :153: CBI Case No.40/11 "419. Punishment for cheating by personation. Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
201. Section 416 IPC reads as:
"416. Cheating by personation. A person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is.
Explanation. The offence is committed whether the individual personated is a real or imaginary person."
202. The evidence on record has proved that Smt. Rama Devi owner of property No.37/575, Onkar Nagar, Tri Nagar, Delhi had expired on 29.04.2007 and some other lady was knowingly substituted by accused Chetan Sharma for Smt. Raman Devi @ Smt. Rama Devi for creating equitable mortgage of property no.37/575, Onkar Nagar, Tri Nagar, Delhi in July, 2007 and accused Chetan Sharma committed the offence of cheating by personation. The evidence on record has also proved that Smt. Pushpa Gupta, owner of property No.21/15, Shakti Nagar, Delhi had not gone to Union Bank of India, Sadar Bazar, Delhi for creating equitable mortgage of property No. No.21/15, Shakti Nagar, Delhi and some other lady was knowingly substituted by accused Chetan Sharma for Smt. Pushpa Gupta in November, 2007 for creating equitable mortgage of property no.21/15, Shakti Nagar, Delhi and accused Chetan Sharma committed the offence of cheating by personation. Accordingly, CBI Vs. Chetan Sharma & others. Page No.: 153 of 173 :154: CBI Case No.40/11 accused Chetan Sharma is liable to be convicted for offence under section 419 IPC.
203. All the accused persons have been charged for offence under section 420 IPC for commission of acts of cheating which resulted in wrongful loss to Union Bank of India and wrongful gain to the accused persons.
204. Section 415 IPC reads as :
"415. Cheating. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation. A dishonest concealment of facts is a deception within the meaning of this section.
205. Section 420 IPC reads as :
"420. Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
206. The evidence adduced by the prosecution has proved that in pursuance of their conspiracy the accused persons submitted fake, CBI Vs. Chetan Sharma & others. Page No.: 154 of 173 :155: CBI Case No.40/11 forged and fabricated documents and produced two females who impersonated as Smt. Raman Devi @ Rama Devi and Smt. Pushpa Gupta and thereby dishonestly induced the Union Bank of India, Sadar Bazar Branch to grant the CC Limit of Rs.75 lacs to M/s Royal Sales Corporation and further dishonestly induced the Union Bank of India to enhance the said CC Limit to Rs.150 lacs and the said amounts were converted by the accused persons to their own use and the accused persons thereby caused wrongful loss to Union Bank of India and wrongful gain to themselves. Consequently, all accused persons, namely, Chetan Sharma, Vipin Sharma, Pawan Kumar Aggarwal & M. C. Aggarwal are liable to be convicted for offence punishable under section 420 IPC.
207. Accused M. C. Aggarwal, who was a public servant, was also charged for offences under section 471 IPC and section 13(2) read with section 13 (1) (d) of the Prevention of Corruption Act, 1988 for criminally misconducting himself being a public servant and by abusing his position as a public servant obtained pecuniary advantage for coaccused persons and thereby, caused huge loss to public sector bank i.e. Union Bank of India, Sadar Bazar Branch, Delhi and dishonestly and fraudulently prepared false site visit / verification reports and used them and got the same be used and also used or got to be used the forged and fabricated title deeds of property No.37/575, Onkar Nagar, Tri Nagar, Delhi and property No.21/15, Shakti Nagar, Delhi to facilitate granting the CC Limit of Rs.75 lacs CBI Vs. Chetan Sharma & others. Page No.: 155 of 173 :156: CBI Case No.40/11 to M/s Royal Sales Corporation and subsequently, enhancing the said CC Limit to Rs.150 lacs.
208. The evidence on record has proved that accused M. C. Aggarwal being a public servant i.e. Chief Manager, Union Bank of India, Sadar Bazar Branch, Delhi prepared false site visit reports of property No.1/342, Gali No.1, Friends Colony, Industrial Area, Shahdara, Delhi purported to be factory of M/s Royal Sales Corporation and site visit & Inspection reports of property No.37/575, Onkar Nagar, Tri Nagar, Delhi and property No. 21/15, Shakti Nagar, Delhi and and by abusing his official position as a public servant i.e. Chief Manager, Union Bank of India, Sadar Bazar Branch, Delhi granted CC Limit of Rs.75 lacs in favour of M/s Royal Sales Corporation which was subsequently enhanced to Rs. 150 lacs by him by abusing his official position. Consequently, accused M. C. Aggarwal is liable to be convicted for offences punishable under section 471 IPC and under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988.
209. Accordingly, accused Chetan Sharma is convicted for the offences punishable under sections 419, 420, 471 and 120B IPC.
210. Accused Vipin Sharma is convicted for the offences punishable under sections 420 & 120B IPC.
211. Accused Pawan Kumar Aggarwal is convicted for the offences punishable under sections 420 & 120B IPC.
CBI Vs. Chetan Sharma & others. Page No.: 156 of 173 :157: CBI Case No.40/11
212. Accused M. C. Aggarwal is convicted for the offences punishable under sections 420, 471 & 120B IPC and also for the offence punishable under section 13 (2) read with 13(1) (d) of the Prevention of Corruption Act, 1988.
Announced in the open court (HARISH DUDANI)
rd
today on 3 November, 2015. Special Judge (PC Act) CBI1, District Courts(SW), Dwarka New Delhi.
CBI Vs. Chetan Sharma & others. Page No.: 157 of 173 :158: CBI Case No.40/11 IN THE COURT OF SHRI HARISH DUDANI SPECIAL JUDGE, (PC ACT) (CBI)1 DISTRICT COURTS(SW), DWARKA, NEW DELHI.
In the matter of : CBI Case No. : 40/11 RC No. : 071/2009(E)/0001/CBI/EOUIII/New Delhi.
Central Bureau of Investigation EOUIII, New Delhi.
Versus
1. Chetan Sharma S/o Late Sh. Om Prakash R/o B23, IInd Floor, Panchsheel Garden, Shahdara, Delhi.
2. Vipin Sharma S/o Late Sh. Om Prakash R/o C10/88, Yamuna Vihar, Delhi.
3. Pawan Kumar Aggarwal S/o Late Sh. Fakir Chand Aggarwal R/o II B/93, Alaknanda Appt, Vaishali, Ghaziabad.
4. M.C. Aggarwal S/o Late Sh. C.R. Aggarwal R/o F1U/15, Pitampura, Delhi.
.............Convicts Date of Institution: 29.07.2010 Date on which Judgment Reserved: 28.10.2015 Date on which Judgment Pronounced: 03.11.2015 Date on which Order on Sentence announced : 19.11.2015 O R D E R O N S E N T E N C E CBI Vs. Chetan Sharma & others. Page No.: 158 of 173 :159: CBI Case No.40/11
1. By this order, I shall dispose off the contentions, raised on behalf of the parties, on the point of sentence.
2. In the present case, convicts, namely, Chetan Sharma, Vipin Sharma, Pawan Kumar Aggarwal and M. C. Aggarwal, have been convicted for the offences punishable under sections 120B & 420 IPC. Convict Chetan Sharma has also been convicted for the offence punishable sections 419 & 471 IPC and convict M. C. Aggarwal has also been convicted for the offence punishable sections 471 IPC and also for the offence under section 13(1)(d) punishable under section 13(2) of the Prevention of Corruption Act, 1988.
3. It has been strongly contended by the Ld. PP for the CBI that all the convicts had entered into a wellplanned conspiracy, in pursuance of which, convict M.C. Aggarwal abused his official as Chief Manager of Union Bank of India, Sadar Bazar, Delhi by sanctioning the CC Limit of Rs.75 lacs which was subsequently enhanced to Rs.150 lacs in favour of M/s M/s Royal Sales Corporation of convict Chetan Sharma on the basis of forged & fabricated documents, by fabricating the false reports and as a result of conspiracy of the convicts, wrongful loss was caused to the Public Sector Bank i.e. Union Bank of India. Sadar Bazar, Delhi and wrongful gain was caused to all the convicts and such cases have to CBI Vs. Chetan Sharma & others. Page No.: 159 of 173 :160: CBI Case No.40/11 be dealt with sternly as all the convicts have caused loss to public exchequer.
4. It has been further contended by the Ld. PP for CBI that maximum punishment prescribed for the offences be handed over to all the convicts in order to send a clear message to the society that such cases are being taken seriously and are dealt with sternly.
5. Convict Chetan Sharma has prayed that a lenient view be taken on the ground that he is afflicted with certain ailments like- Blood Pressure, etc. and is getting treatment from IHBAS and has already undergone two operations. He has further contended that he has one daughter who is 32 years of age and is married and is facing matrimonial disputes and his presence is required for resolution of disputes. It is further contended by convict Chetan Sharma that he has two sons and elder son is 32 years old and is married and younger son is 20 years old and is doing B. Tech. That all the family members are dependent upon him and he is the only earning member to look after his family. That he has faced long trial and has already remained in JC for about 90 days.
6. Convict Vipin Sharma has submitted that he is 52 years of age and has one daughter, who is 24 years old and is unmarried and has completed MA & one son 22 years of age, who is in class XII. That he is the sole bread earner in the family and there is CBI Vs. Chetan Sharma & others. Page No.: 160 of 173 :161: CBI Case No.40/11 nobody else to look after his family and prays for a lenient view.
7. Convict Pawan Kumar Aggarwal has also prayed for a lenient view. He has submitted that he is 55 years old and is suffering from various diseases and was admitted in ICU due to Liver disease and he has recently undergone cataract surgery. It is further contended by convict Pawan Kumar Aggarwal that he is having one son, who is 31 years old and is married and twin daughters of 28 years of age and both are married and the entire family is dependent on him. It is further contended that benefit of Probation of Offenders Act, 1958 be extended to the convict Pawan Kumar Aggarwal.
8. On behalf of convict, M. C. Aggarwal, it is submitted that he is 63 years of age and is patient of asthma and his wife is also suffering from various ailments. It is contended that he has two married daughters, who are living separately and he has lost his job and he is giving tuitions & coaching to earn his livelihood and he is the sole bread earner in the family and there is nobody else to look after his wife. It is further contended by convict M. C. Aggarwal that he has always appeared before the court and he is not a previous convict. He has prayed that a lenient view be taken.
9. The above said convicts have, thus, prayed for taking a lenient view.
CBI Vs. Chetan Sharma & others. Page No.: 161 of 173 :162: CBI Case No.40/11
10. The contentions, raised by the convicts, have met stiff and very strong opposition on behalf of the State.
11. It is contended by Ld. PP for CBI that from the very beginning, convict M. C. Aggarwal, the then Chief Manager in conspiracy of other convicts, prepared the false site visit/inspection reports and used them or got the same be used and also used or got used forged and fabricated title deeds of properties as collateral securities and convict M. C. Aggarwal, being public servant had illegally and dishonestly by abusing his official position approved/sanctioned CC Limit of Rs.75 lacs and subsequently, enhanced the said CC Limit to Rs.150 lacs in favour of M/s Royal Sales Corporation on the basis of fake, forged and fabricated documents without following the advice of Grid. It is, therefore, urged that this convict deserves maximum punishment.
12. Regarding the convict, Vipin Sharma, it is contended by CBI that he joined the criminal conspiracy with other convicts and facilitated in siphoning off the amount of CC Limit obtained from Union Bank of India through the account of his firm, namely, M/s Excellent Enterprises by showing the transactions as legitimate business transactions and he is not entitled to any mercy or compassion.
13. Regarding the convict, Pawan Kumar Aggarwal it is CBI Vs. Chetan Sharma & others. Page No.: 162 of 173 :163: CBI Case No.40/11 stated by CBI that he was also involved in the conspiracy with other convicts and he also facilitated in siphoning off the amount of CC Limit obtained from said Union Bank of India through the accounts of his firms, namely, M/s P. K. Enterprises and M/s Power Line Industries by showing the transactions as legitimate business transactions and he is not entitled to any mercy or compassion.
14. It is contended by Ld. PP for CBI that convict Chetan Sharma has played the key role in hatching the criminal conspiracy and getting sanctioned the CC Limit from Union Bank of India, Sadar Bazar on the basis of forged and fabricated documents. It is stated that convict Chetan Sharma submitted the forged and fabricated documents to Union Bank of India alongwith his application and he also submitted fake, forged and fabricated title deeds of properties as collateral securities and also substituted two ladies who impersonated as Smt. Raman Devi @ Rama Devi and Pushpa Gupta and obtained the CC Limit of Rs.75 lacs and later on, got enhanced the same to Rs.150 lacs from Union Bank of India.
15. It is further urged on behalf of the State that most of the pleas taken by the convicts are routine and stock pleas and in any case, in the case under the Prevention of Corruption Act, these pleas cannot be considered as mitigating circumstances. It is further contended that benefit of provisions of Probation of Offenders Act, 1958 cannot be extended in a case under the Prevention of Corruption CBI Vs. Chetan Sharma & others. Page No.: 163 of 173 :164: CBI Case No.40/11 Act, 1988 and contention of convict Pawan Kumar Aggarwal to this effect has no force. It is, therefore, prayed that exemplary punishment be awarded to the convicts herein.
16. In Subramanian Swamy v. Manmohan Singh and another, (2012) 3 Supreme Court Cases 64, the Hon'ble Supreme Court has been pleased to observe:
68. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of the Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our Preambular vision. Therefore, the duty of the court is that any anticorruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. ..............
................................................................................
69. Time and again this Court has expressed its dismay and shock at the evergrowing tentacles of CBI Vs. Chetan Sharma & others. Page No.: 164 of 173 :165: CBI Case No.40/11 corruption in our society but even then situations have not improved much.
17. In Narendra Champaklal Trivedi v. State of Gujarat, (2012) 7 Supreme Court Cases 80, the Hon'ble Supreme Court has been pleased to observe:
30. ...............................................................................
.................. It should be paramountly borne in mind that corruption at any level does not deserve either sympathy or leniency. In fact, reduction of the sentence would be adding a premium. The law does not so countenance and, rightly so, because corruption corrodes the spine of a nation and in the ultimate eventuality makes the economy sterile.
18. The Hon'ble Apex Court, in State of Madhya Pradesh v. Sheikh Shahid, Criminal Appeal No. 660 of 2004, has been pleased to observe:
14. 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, e.g. 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 CBI Vs. Chetan Sharma & others. Page No.: 165 of 173 :166: CBI Case No.40/11 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 a view merely on account of lapse of time in respect of such offences will be resultwise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
19. It was observed by the Hon'ble High Court of Delhi in Jai Bhagwan v. State (NCT of Delhi), (2008) 150 DLT 46 (Delhi):
8. ................................................................................
.............. A corrupt man is not complained against because the giver of bribe and taker of bribe both gain advantage. It is only in rare cases where the taker of bribe becomes so bold that he starts demanding bribe without giving any unlawful advantage, even for lawful works that the giver of bribe approaches the law machinery. The person caught is not always a firsttimer corrupt. He may have been indulging into corrupt activities for a long number of years. It is to his advantage that the trial is prolonged, hearing of appeals is prolonged. He spends a fraction of the amount, earned by corrupt CBI Vs. Chetan Sharma & others. Page No.: 166 of 173 :167: CBI Case No.40/11 practices on, litigations and professionals to see that ultimately he makes criminal justice system as a laughing stock. In this process, the entire legislative purpose of punishing a corrupt, stands defeated.
20. In State of J and K v. Vinay Nanda, AIR 2001 Supreme Court 611, the Hon'ble Supreme Court has been pleased to observe:
2. Corruption at any level, by any person, of any magnitude is condemnable which cannot be ignored by the judicial Courts, when proved. No leniency is required to be shown in proved cases under the Prevention of Corruption Act which itself treats the offences under it of a special nature to be treated differently than the general penal offences. The convicts of the offences under the Act are to be dealt with heavy hand and deterrent rod. No populous or sympathetic approach is needed in such cases.
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14. ...................... The fact that the convict had reached his superannuation is not a special reason. Similarly pendency of criminal case for over a period of time can also not be treated as a special reason. Prolonged litigation in the country is CBI Vs. Chetan Sharma & others. Page No.: 167 of 173 :168: CBI Case No.40/11 admittedly a general reason in criminal cases.
21. In State of M. P. and others v. Ram Singh, AIR 2000 Supreme Court 870, the Hon'ble Supreme Court has been pleased to observe:
7. Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to maliganise the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The sociopolitical system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage.
22. In A. B. Bhaskara Rao v. Inspector of Police, CBI, Visakhapatnam, Criminal Appeal No.650 of 2008, the Hon'ble Supreme Court has been pleased to observe:
"19. ............................................................................. .......................................................................................
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b) Long delay in disposal of appeal or any other factor may not be a ground for reduction of sentence, particularly, when the statute prescribes minimum sentence. ..................................
c) In a case of corruption by public servant, quantum of amount is immaterial. Ultimately it depends upon the conduct of the delinquent and the proof regarding demand and acceptance established by the prosecution.
d) Merely because the delinquent lost his job due to conviction under the Act may not be a mitigating circumstance for reduction of sentence, particularly, when the Statute prescribes minimum sentence."
23. I have thoroughly and carefully considered the contentions of the parties. I have also examined the asserted mitigating and aggravating circumstances, pointed out by the parties. All the convicts had conspired in pursuance of which wrongful loss was caused to the public exchequer. Although, all the convicts have pleaded for lenient view citing various reasons but sight cannot be lost of the fact that convicts had made wrongful gain from the public sector bank which was hardearned money of public, of which convict M. C. Aggarwal was the custodian. Convict M. C. Aggarwal instead of performing his duty as a guardian of public money, CBI Vs. Chetan Sharma & others. Page No.: 169 of 173 :170: CBI Case No.40/11 plundered the said public exchequer in conspiracy with all other convicts and all convicts have been benefited from the money which belonged to citizens of the country. A clear message is to be sent to the society that plunder of public exchequer cannot be permitted at any cost as the said money belongs to people of the country and is meant for the development of the nation and any attempt to cause wrongful loss to public exchequer has to be dealt with sternly. Atthough, convict Pawan Kumar Aggarwal has pleaded that the benefit of provisions of the Probation of Offenders Act, 1958 be extended to him but the allegations, as proved against him, are that he was the part of criminal conspiracy in pursuance of which convict M. C. Aggarwal criminally misconducted and abused his official position as public servant in obtaining the pecuniary advantage to convicts. In the circumstances, convict Pawan Kumar Aggarwal is not entitled to the benefit of the provisions of the Probation of Offenders Act, 1958.
24. Considering all the aspects of the matter, I am of the considered opinion that the following sentences shall be appropriate to meet the ends of justice:
(i) The convict, namely, Chetan Sharma, is awarded sentence of six months rigorous imprisonment and a fine of Rs.10,000/ (Rupees ten thousand only), in default, 15 days simple imprisonment for the offence punishable under section 120B IPC read with section 420 IPC and section 13(2) read with section 13 (1) CBI Vs. Chetan Sharma & others. Page No.: 170 of 173 :171: CBI Case No.40/11
(d) of the Prevention of Corruption Act, 1988. For the offence punishable under section 420 IPC, he is awarded sentence of four years rigorous imprisonment and a fine of Rs.50,000/ (Rupees Fifty thousand only), in default, two months simple imprisonment and for the offence punishable under section 419 IPC, he is awarded sentence of two years rigorous imprisonment and a fine of Rs.20,000/ (Rupees twenty thousand only), in default, one month simple imprisonment. He is further awarded sentence of two years rigorous imprisonment and a fine of Rs.20,000/ (Rupees twenty thousand only), in default, one month simple imprisonment for the offence punishable under section 471 IPC.
(ii) The convict, namely, Vipin Sharma is awarded sentence of six months rigorous imprisonment and a fine of Rs.10,000/ (Rupees ten thousand only), in default, 15 days simple imprisonment for the offence punishable under section 120B IPC read with section 420 IPC and section 13(2) read with section 13 (1)
(d) of the Prevention of Corruption Act, 1988. For the offence punishable under section 420 IPC, he is awarded sentence of two years rigorous imprisonment and a fine of Rs.25,000/ (Rupees Twenty Five thousand only), in default, one month simple imprisonment.
(iii) The convict, namely, Pawan Kumar Aggarwal, is awarded sentence of six months rigorous imprisonment and a fine CBI Vs. Chetan Sharma & others. Page No.: 171 of 173 :172: CBI Case No.40/11 of Rs.10,000/ (Rupees ten thousand only), in default, 15 days simple imprisonment for the offence punishable under section 120B IPC read with section 420 IPC and section 13(2) read with section 13 (1) (d) of the Prevention of Corruption Act, 1988. For the offence punishable under section 420 IPC, he is awarded sentence of two years rigorous imprisonment and a fine of Rs.25,000/ (Rupees Twenty Five thousand only), in default, one month simple imprisonment.
(iv) The convict, namely, M. C. Aggarwal is awarded sentence of six months rigorous imprisonment and a fine of Rs.10,000/ (Rupees ten thousand only), in default, 15 days simple imprisonment for the offence punishable under section 120B IPC read with section 420 IPC and section 13(2) read with section 13 (1)
(d) of the Prevention of Corruption Act, 1988. For the offence punishable under section 420 IPC, he is awarded sentence of four years rigorous imprisonment and a fine of Rs.50,000/ (Rupees Fifty thousand only), in default, two months simple imprisonment. He is further awarded sentence of two years rigorous imprisonment and a fine of Rs.20,000/ (Rupees twenty thousand only), in default, one month simple imprisonment for the offence punishable under section 471 IPC. For the offence punishable under section 13(2) read with section 13 (1) (d) of the Prevention of Corruption Act, 1988, he is awarded sentence of four years CBI Vs. Chetan Sharma & others. Page No.: 172 of 173 :173: CBI Case No.40/11 rigorous imprisonment and a fine of Rs.50,000/ (Rupees Fifty thousand only), in default, two months simple imprisonment.
25. All the aforesaid sentences shall run concurrently.
26. As per report received from the Office of Superintendent, District Jail Rohini, Delhi, convict Chetan Sharma has remained in J. C. in this case from 13.03.2010 to 08.06.2010(wrongly mentioned as 13.03.2015 to 08.06.2015) and as per report of Ahlmad also, convict Chetan Sharma has remained in J. C. in this case from 13.03.2010 to 08.06.2010. Benefit of section 428 Cr.P.C. is extended to the convicts.
27. A copy of the judgment and order on sentence be given to all the convicts, free of cost, forthwith.
28. File be consigned to Record Room.
Announced in the open court (HARISH DUDANI) today on 19th November, 2015. Special Judge (PC Act) CBI1, District Courts(SW), Dwarka New Delhi.
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