Delhi District Court
Cbi vs . 1. Rajesh Kohli, on 7 December, 2012
1
CBI case . No.21/11
IN THE COURT OF SH. N. K. KAUSHIK
SPECIAL JUDGE, PC ACT, CBI,
DWARKA COURTS, NEW DELHI
CBI Case No. 21/11
Date of Institution: 27.01.2003
Date on which Judgment Pronounced : 20.11.2012
Decision: Conviction
CBI case no. 21/11
RC no. 1(E)/2001/EOWI/ New Delhi
In the matter of:
CBI versus. 1. Rajesh Kohli,
The then Divisional Manager,
National Insurance Ltd.,
DOX, New Delhi.
R/o 187, Pragati Apartment,
Club Road, Paschim Vihar,
New Delhi.
2. Devender Kumar Garg,
S/o Late Sh. R.S. Chananmal,
R/o 491, Model Town
(Urban Estate), Bhatinda,
Punjab.
3. Arvind Kumar Sharma,
S/o Late Sh. Shambhu Nath Sharma,
R/o GH2/122B,
Ankur Apartments,
Paschim Vihar, New Delhi63.
4. Kunwar Vijay Juneja,
S/o Late Sh. Veer Bhan,
R/o A26, Saraswati Garden,
New Delhi15.
CBI vs. Rajesh Kohli & Ors. 1 of 112 pages
2
CBI case . No.21/11
5. Vinod Kumar Bhutani,
The then Assistant
Administrative Officer,
in National Insurance Ltd.
DOX, New Delhi.
(Now posted as
Administrative Officer,
DOI in National Insurance
Ltd, Delhi.)
S/o Sh. Sukh Dayal Bhutani,
R/o AGI, Shiva Enclave,
Opp. Ordinance Depot,
Rohtak Road, Delhi.
.............Accused persons
JUDGMENT
1. This is a corruption case under Prevention of Corruption Act, 1988, registered by the CBI, relating to the fraudulent insurance claim wherein consignor, consignee and transporter were fake and nonexisting at the given address, the survey and recovery were bogus and fake, fabricated and forged documents were used, in pursuance to an organised, systematic and well formed criminal conspiracy by the accused persons, who all acted in unison, one after the other to cheat National Insurance Company Ltd. CBI vs. Rajesh Kohli & Ors. 2 of 112 pages 3 CBI case . No.21/11
2. The case set up by the prosecution, is that marine policy no. 21451866/97 for Rs. 7,00,000/, was issued, on 17.12.97 to the insured M/s Evershine Enterprises for transit of consignment of industrial chemical from Delhi to Dhuri. That the said policy was booked under the agency no. 2/10037.
3. It is further alleged that in this regard, one Tewari, an agent was contacted, who disclosed that he had nothing to do with the said insurance and also that he used to give his commission on insurances to accused, Rajesh Kohli, the then Divisional Manager.
4. It is further alleged that the insured, vide their letter, dt. 12.02.98, surrendered the original policy along with the claim form, which was received by accused Rajesh Kohli, the then Divisional Manager.
5. It is further alleged that the photographs, on the basis of which, the present claim was settled, were exactly similar to those found in the claim of Super Trader & CBI vs. Rajesh Kohli & Ors. 3 of 112 pages 4 CBI case . No.21/11 Balaji Trading Co. of Hauz Khas & Delhi D.O. XV, respectively, and also in the claim of Evershine Enterprises, Delhi.
6. It is further alleged that M/s Pooja International of accused A. K. Sharma was appointed as recovery agent, who deposited Rs.27,000/ as fake recovery, in this case.
7. It is further alleged that the aforesaid claim was recommended by accused V.K. Bhutani, the then Assistant Administrative Officer and which was finally approved by accused Rajesh Kohli for Rs.2,77,306/ .
8. It is further alleged that M/s K.C. Pipe Industries was found not existing at Dhuri and that M/s Allied Transport Co. also could not be traced as their address was not available.
9. It is further alleged that accused Devender Kumar Garg was found to be the owner of M/s Evershine CBI vs. Rajesh Kohli & Ors. 4 of 112 pages 5 CBI case . No.21/11 Enterprises, as per records of Oriental Bank of Commerce, Connaught Place. That the insured and the surveyor in this case, accused Devender Kumar Garg was the same person.
10. The case of the prosecution, in brief, is that during the year 19971998, at New Delhi and other places, all the accused persons were party to a criminal conspiracy by having agreed to do an illegal act i.e. to cheat National Insurance Company Ltd., Divisional OfficeX, New Delhi, by fraudulently inducing it to sanction claim insurance in the name of M/s Evershine Enterprises, 397, Ground Floor, Masjid Moth, South ExtensionII, New Delhi, a nonexisting firm, under the proprietorship of accused Devender Kumar Garg, to the extent of Rs.2,77,306/ on the basis of forged, bogus and false documents i.e. invoice, GR Survey Report, etc.
11. That the accused Devender Kumar Garg, in furtherance of the aforesaid criminal conspiracy, CBI vs. Rajesh Kohli & Ors. 5 of 112 pages 6 CBI case . No.21/11 obtained Marine Policy no. 21451866/97 for sending consignment of chemicals from M/s Evershine Enterprises, 397, Ground Floor, Masjid Moth, South ExtensionII, New Delhi to M/s K.C. Pipe Industries, Dhuri (Punjab) through good Receipt No. 62804 of M/s Allied Transport Co. and intimated NIC Ltd. Bhatinda about damage/loss of the consignment.
12. Further, in furtherance of the aforesaid criminal conspiracy, accused Devender Kumar Garg, who was appointed as surveyor, submitted bogus survey report and that accused V.K Bhutani processed the claim and that accused Rajesh Kohli approved the claim for Rs.2,77,306/, in favour of M/s Evershine Enterprises, on the basis of false, forged and bogus documents and that accused Devender Kumar Garg received the amount, vide cheque no.097003 and the proceeds of the cheque was credited in the account no.5066 of M/s Evershine Enterprises, and that accused Arvind Kumar Sharma of M/s Pooja International introduced the account of M/s Evershine Enterprises, a non CBI vs. Rajesh Kohli & Ors. 6 of 112 pages 7 CBI case . No.21/11 existing firm and was appointed as recovery agent in this case. That he deposited falsely recovery amount of Rs.27,000/ in NIC, Delhi, without recovering any amount. That the fake recovery amount was deposited and that accused Kunwar Vijay Juneja, being employee of M/s Pooja International received the documents for effecting the recovery and submitted fraudulently a bill for commission to NIC, Delhi. All the accused persons, thus, are alleged to have hatched a criminal conspiracy and committed offence, punishable under section 120(B) read with sections 420, 467, 468, 471 IPC and section 13(2) read with section 13(1) (d) of Prevention of Corruption Act, 1988.
13. Further, during the period 199798, at Delhi, and other places, accused Rajesh Kohli, being a public servant in the capacity of Divisional Manager, NIC Ltd., Divisional OfficeX, New Delhi by use of illegal means and abusing his official position, induced NIC, DOX and sanctioned claim amount of Rs. CBI vs. Rajesh Kohli & Ors. 7 of 112 pages 8 CBI case . No.21/11 2,77,306/, in favour of M/s Evershine Enterprises, on the basis of false, forged and bogus documents and thereby enabled accused Devender Kumar Garg, proprietor of M/s Evershine Enterprises to obtain pecuniary advantage to the tune of Rs.2,77,306/ and corresponding loss to the NIC Ltd., Divisional Office X, New Delhi. The said accused, thus, is alleged to have committed an offence, punishable under section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, also.
14. Further, during the aforesaid period, at Delhi, and other places, accused Vinod Kumar Bhutani, being a public servant in the capacity of AAO, NIC Ltd., Divisional OfficeX, New Delhi by use of illegal means and abusing his official position, induced and persuaded to forward and processed the claim proposal on the basis of false, forged and bogus documents for the grant of claim amount of Rs. 2,77,306/ in favour of M/s Evershine Enterprises and upon his recommendation, the claim amount was CBI vs. Rajesh Kohli & Ors. 8 of 112 pages 9 CBI case . No.21/11 sanctioned and that he thereby enabled the accused Devender Kumar Garg of M/s Evershine Enterprises, to obtain pecuniary advantage to the tune of Rs. 2,77,306/ and caused corresponding loss to the NIC Ltd., Divisional OfficeX, New Delhi. The said accused person, thus, is alleged to have committed an offence, punishable under section 13(2) read with section 13(1)(d) of Prevention of Corruption Act, 1988.
15. Further, during the aforesaid period, at Delhi, and other places, accused Devender Kumar Garg, dishonestly induced NIC, DOX to obtain insurance claim of Rs.2,77,306/, in favour of M/s Evershine Enterprises, on the basis of false, bogus and forged documents i.e. invoice, survey report, GR etc and received a cheque of claim amount, which he got duly credited in A/c no. 5066 of M/s Evershine Enterprises of which he was the proprietor. He, thus, is alleged to have committed an offence punishable under section 420 IPC.
CBI vs. Rajesh Kohli & Ors. 9 of 112 pages 10 CBI case . No.21/11
16. Further, during the aforesaid period, at Delhi, and other places, accused Devender Kumar Garg, fraudulently used false, forged and bogus documents i.e. invoice, GR survey report etc. as genuine for the purpose of cheating knowing fully well that these documents were forged, false and bogus. He, thus, is alleged to have committed offences punishable under section 471 read with 467 and 468 IPC.
17. Further, during the aforesaid period, at Delhi, and other places, accused Devender Kumar Garg was appointed as surveyor and submitted false survey report, without surveying the consignment. He, thus, is alleged to have committed offence punishable under section 468 IPC.
18. Further, during the aforesaid period, at Delhi, and other places, accused Arvind Kumar Sharma was appointed as a recovery agent, being a proprietor of M/s Pooja International and deposited recovery amount of Rs.27,000/, without recovering any CBI vs. Rajesh Kohli & Ors. 10 of 112 pages 11 CBI case . No.21/11 amount from the concerned party. He, thus, is alleged to have committed an offence punishable under section 468 IPC.
19. Further, during the aforesaid period, at Delhi, and other places, accused Kunwar Vijay Juneja had submitted false recovery report on behalf of M/s Pooja International and claimed recovery fee in the claim of M/s Evershine Enterprises and that he had received recovery fee, for which he was not entitled. He, thus, is alleged to have committed an offence punishable under section 468 IPC.
20. Primafacie, offences under section 120B read with sections 420, 467, 468, 471 IPC and section 13(2) read with section 13(1)(d) of Prevention of Corruption Act, 1988 against all the accused persons and substantive offences under section 13(2) read with section 13(1)
(d) Prevention of Corruption Act, 1988 against accused Rajesh Kumar Kohli & Vinod Kumar Bhutani, under sections 420 and 471 read with sections 467 & CBI vs. Rajesh Kohli & Ors. 11 of 112 pages 12 CBI case . No.21/11 468 IPC against accused Devender Kumar Garg, under section 468 IPC against accused persons namely, Devender Kumar Garg, Arvind Kumar Sharma and Kunwar Vijay Juneja were made out.
21. Charge, accordingly, was framed against the accused persons, to which, they pleaded not guilty and claimed trial.
22. The prosecution, in order to substantiate its claim and contentions, examined 23 witnesses, in all.
23. Thereafter, the accused persons were examined under section 313 Cr. P.C.
24. Defence has also produced three witnesses, in support of their contentions.
25. The prosecution, has contended that the case of the prosecution has been duly proved, in view of the material that has appeared on record. That the CBI vs. Rajesh Kohli & Ors. 12 of 112 pages 13 CBI case . No.21/11 prosecution witnesses have supported and proved the prosecution version beyond any reasonable doubt.
26. On behalf of the defence, on the other hand, it has been stated that the prosecution has failed to prove its case.
27. The defence has filed written argument also, which is a part of the record.
28. At the very outset, it is to be noted that there is no dispute over the propositions of law enunciated in the case law, cited in the written submissions of the defence. However, in view of the facts and circumstances obtaining on record, the case law cited and contentions raised by the defence do not help them at all.
29. I have carefully gone through the entire relevant material appearing on record and have given considered thought to the arguments that have been CBI vs. Rajesh Kohli & Ors. 13 of 112 pages 14 CBI case . No.21/11 advanced, at the bar. My findings are as under:
30. PW1, Sh. A. K. Seth was the then Vigilance Officer, who was posted in Vigilance Department of National Insurance Company during the period from January, 1992 to March, 2003.
31. PW1 has deposed that he had conducted enquiry in this case, on the basis of source information, which was collected, in respect of fraudulent marine claims in DOX. That he was assisted by Mr. A.L. Gambhir and Mr. Anil Kumar Tiwari during investigation. That after completing investigation, he along with said Mr. A.L. Gambhir and Mr. Anil Kumar Tiwari, had prepared the report and sent it to CVO, Head Office, Vigilance Department, Calcutta.
32. PW1 has proved the said investigation report, consisting of five pages, including the claim of M/s Evershine Enterprises, which is Ex.PW1/A, having his signatures at point A and that of Mr. A.K. Tiwari at pt. CBI vs. Rajesh Kohli & Ors. 14 of 112 pages 15 CBI case . No.21/11 B, which he duly identified.
33. PW1 has further deposed that he had examined the marine claim file no. 351000/2145/97/98/74R466, regarding M/s Evershine Enterprises, which has been proved as Ex.PW1/C, (consisting of 25 sheets along with four photographs and its negatives). This claim file has not been disputed nor disproved by the defence.
34. PW1 has further deposed that M/s Pooja International and M/s Honey International were among the approved recovery agents and that as per their record, accused K.V. Juneja was the owner of M/s Honey International. He has further deposed that all the divisional offices, which were in the jurisdiction of DRO I & II, were authorized to appoint any of the approved recovery agents and that these approved recovery agents were for DOX and DOIII.
35. PW2, Sh. Anil Kumar Tiwari, was posted as CBI vs. Rajesh Kohli & Ors. 15 of 112 pages 16 CBI case . No.21/11 Administrative Officer in Vigilance Department of National Insurance Company during the period from 1997 to 2000.
36. PW2 has reiterated the report, Ex.PW1/A, which was prepared by him along with PW1, Sh. A.K. Seth, relating to the claim of M/s Evershine Enterprises and others. He identified his signatures at point B and that of PW1, Sh. A.K. Seth, at pt. A, on the said report.
37. PW2 has further deposed that he had gone through the file, which is Ex.PW1/C, regarding claim of M/s Evershine Enterprises, consisting of 25 pages, along with four photographs and its negatives, while submitting the said report.
38. PW3, Sh. Krutivas Mahapatra was posted as Chief Vigilant Officer in National Insurance Company Ltd., Calcutta, from December, 1997 to March, 2002. He has deposed that he had received the report, dated 28.09.1999, which was prepared by PW1, Sh. A.K. Seth, CBI vs. Rajesh Kohli & Ors. 16 of 112 pages 17 CBI case . No.21/11 the then Vigilance Officer along with PW4, Sh. A.K. Tiwari and which was also signed by them.
39. PW3 has further deposed that he had found that six false marine claims,including the present one, amounting to Rs.15,93,568/ were settled in Division X. That after getting approval from Chairman cum Managing Director, he had referred the matter to the CBI, on 29.09.2000. He has further deposed that thereafter, he made a complaint to the CBI, copy of which has been proved as Ex.PW3/1.
40. PW3 has also reiterated, the report, Ex.PW1/A, which was submitted by PW1, Sh. A.K. Seth. He has further deposed that any party cannot be appointed as 'surveyor' in his own case, even though qualified for it.
41. PW4, Sh. Visveshwar Nath is an independent witness.
He has deposed that he came to Delhi in the year 1995 along with his brother in law, B.N. Tiwari, who was at that time, working in National Insurance Ltd. That the CBI vs. Rajesh Kohli & Ors. 17 of 112 pages 18 CBI case . No.21/11 said Sh. B.N. Tiwari introduced him to accused Rajesh Kohli and requested him to arrange a job for him. That he worked with accused Rajesh Kohli for about two and half years, in his office. That he used to go out for receipt and delivery of post, on behalf of accused Rajesh Kohli. That he used to be paid Rs.1,000/, per month, as wages.
42. PW4 has further deposed that in the year 1999, he became insurance agent for Division no. X of National Insurance Company Ltd and his agency number was 10080. That he obtained the said agency himself from Sh. C.M. Malhotra, the then Divisional Manager. That he subsequently, on the advise of accused Rajesh Kohli, opened a saving bank account in Asaf Ali Branch of Bank of Baroda, perhaps, by the end of the year 1995 or beginning of the year 1996.
43. PW4 has further deposed that he used to deposit and withdraw money out of the said account and the amount withdrawn, was handed over by him to CBI vs. Rajesh Kohli & Ors. 18 of 112 pages 19 CBI case . No.21/11 accused Rajesh Kohli. That generally, one cheque in a month was issued by accused Rajesh Kohli, which was deposited by him in the bank and that the amount withdrawn of the said cheque, was handed over by him to accused Rajesh Kohli.
44. PW4 has further deposed that accused Vinod Kumar Bhutani also used to give him cheques in his name, which were deposited by him in the aforesaid bank account. That he used to withdraw cheque amount from the bank and hand it over either to accused Rajesh Kohli or in his absence, to accused Vinod Kumar Bhutani, as was instructed by accused Rajesh Kohli.
45. PW4 has further deposed that on the instructions of accused Rajesh Kohli, he had opened another bank account in Jeevan Bharti Building Branch of Canara Bank. That subsequently, their office was shifted from Asaf Ali Road to 54 Hanuman Road in the beginning or probably by the end of 1996. That accused Rajesh CBI vs. Rajesh Kohli & Ors. 19 of 112 pages 20 CBI case . No.21/11 Kohli as well as accused V.K. Bhutani had asked him 23 times to issue a blank cheque but he had not obliged them. That thereafter, on the asking of accused Vinod Kumar Bhutani, he had closed his account in Canara Bank, in 1998. That subsequently, his agency was also closed.
46. PW4 has further deposed that in Bank of Baroda, Asaf Ali Branch, his saving bank account number was 30645 and in Canara bank, his account no. was 28415, which he did not recollect exactly. He has further deposed that he had withdrawn a sum of Rs. One Lakh and odd amount out of the aforesaid two accounts, which he handed over to accused Rajesh Kohli and accused Vinod Bhutani. He has further deposed that he was submitting income tax returns regularly, since 1999.
47. PW4 has further deposed that he had handed over form no. 16A, in respect of B.N. Tiwari, copy of which is Ex.PW4/1 to CBI, which was issued to him from his CBI vs. Rajesh Kohli & Ors. 20 of 112 pages 21 CBI case . No.21/11 office, bearing signatures of accused Rajesh Kohli at pt. A, which has been duly identified by him. He has further deposed that commission voucher, in respect of B.N. Tiwari, which is Ex.PW4/2, was filled by him, having his signatures and that when the same was filled, a cheque was issued in his favour.
48. PW5, Sh. Amiya Kumar has deposed that in the year 1981, he was Assistant Administrative Officer in the National Insurance Company. He has deposed in detail about the procedure, which ought to have been followed by the competent authority for passing the marine claim.
49. PW5 has further deposed that file in respect of M/s Evershine Enterprises, which is already Ex.PW1/C, did not contain claim intimation letter and that as per the note, contained in the said file, surveyor was appointed by Sangroor Office of National Insurance Company Ltd.
CBI vs. Rajesh Kohli & Ors. 21 of 112 pages 22 CBI case . No.21/11
50. PW5 has further deposed that surveyor is appointed, when a claim intimation is received by the company and not at the stage of recording claim note. He has further deposed that accused Devender Kumar Garg was appointed as Surveyor, in this case, as per record.
51. PW5 has further deposed that there was no substantive document with the claim note to show the compliance of section 64 VB of the Insurance Act.
52. PW6, Sh. Jagat Singh was posted as Senior Manager in the Indian Overseas Bank, on 01.05.2001. He has proved the letter, dated 16.05.2002, copy of which is Ex.PW6/A. The said letter was addressed to Sh. Alok Mittal, SP, CBI, bearing his signatures at pt. A, which have been duly identified by him. He has also identified the signatures of Sh. K.K. Soni, the then Chief Manager on the said letter, which contains the details of four cheques.
53. PW7, Sh. P.K. Aggarwal has deposed that in February, CBI vs. Rajesh Kohli & Ors. 22 of 112 pages 23 CBI case . No.21/11 2001, he was posted in the Vigilance Department of National Insurance Company Ltd., having its office at Jeevan Bharti Building, Parliament Street, New Delhi.
54. PW7 has further deposed that on 08.02.01, he had handed over six claim files to the Investigating Officer at its office at Lok Nayak Bhawan, New Delhi, vide seizure memo, copy of which is Ex.PW7/A(running into two pages). He has duly identified his signatures on the said seizure memo, at pt. A.
55. PW8, Smt. Hem Lata Ahuja was posted as Stenographer in DOX, National Insurance Company Ltd in October, 2001. She has deposed that she had typed the note, dated 30.03.98, contained at pages 6&7 in claim file, Ex.PW1/C, pertaining to claim no. 351000/2145/9798/74 of M/s Evershine Enterprises, which is Ex.PW3/D2. That she had taken the dictation of the said note from accused Rajesh Kumar Kohli, which bears her signatures at pt. A and that of accused persons namely, Rajesh Kumar Kohli and V.K. Bhutani CBI vs. Rajesh Kohli & Ors. 23 of 112 pages 24 CBI case . No.21/11 at pts. B & C, respectively. She has further deposed that she did not have any personal knowledge, in respect of any of the cases and that whatever, she had done, she had done it in the capacity of a stenographer.
56. PW9, Sh. Deepak Choudhary was Assistant Administrative Officer in DOX, in the year 2001. He has deposed that he had joined as Assistant Administrative Officer, on 15.04.98. That in the year 1998, accused Rajesh Kumar Kohli was the Incharge Divisional Manager and that he remained as Incharge there in that department, till August or September, 1998, and thereafter, resigned.
57. PW9 has further deposed that he was looking after the accounts department since his joining and his duties, included the issuance of receipts for premium recovered and to disburse the payments, approved by competent authority.
CBI vs. Rajesh Kohli & Ors. 24 of 112 pages 25 CBI case . No.21/11
58. PW9 has deposed that receipt no. 2661, dated 06.10.98, in respect of M/s Evershine Enterprises, which is also Ex.PW11/D, was prepared by their cashier, Sh. A.K. Tandon, who counter signed the same, on 07.10.98. The witness has further identified his own signatures as well as that of Sh. A.K. Tondan at pts. A & B, respectively, on the said receipt. He has further deposed that in the said receipt, recovery of Rs.27,000/ has been shown from M/s Akal Goods Carriers, by way of cheque.
59. PW9 has further deposed in detail about the procedure for issuance of receipt in their department.
60. PW9 has further deposed that in the claim note, which is Ex.PW3/D2 in the file, Ex.PW1/C, pertaining to M/s Evershine Enterprises, at para no. 24(ix), it has been mentioned that "damage or shortage certificate was issued by Akal Goods Carriers( Carriers Agent)".
61. PW9 has further proved the statement of commission, CBI vs. Rajesh Kohli & Ors. 25 of 112 pages 26 CBI case . No.21/11 copy of which is Ex.PW9/A, vide which, commission was paid to the agent on the premium of the insured. The said statement bears the signatures of Sh. Amiya Kumar at pt. A and his own initials at pt. B, which have been duly identified by the witness. He has further deposed that the name of the agent was Sh. B.N. Tiwari.
62. PW9 has further deposed that file, Ex.PW1/C, pertaining to M/s Evershine Enterprises, does not contain the copies of the documents, given to the tracer or recovery agent, for effecting the recovery, however, it contains an acknowledgment of M/s Pooja International at page no. 5 of the said file.
63. PW9 has further deposed that accused V.K. Bhutani was the Accounts Officer, prior to him. That the underwriting documents included proposal letter/proposal form, copy of premium receipt, copy of policy document, the correspondence, relating to accepting the insurance and pre dispatch inspection, CBI vs. Rajesh Kohli & Ors. 26 of 112 pages 27 CBI case . No.21/11 if any, and that the underwriter was the person, who had accepted and issued the policy.
64. PW9 has further deposed about the sum assured in respect of M/s Evershine Enterprises.
65. On being asked specifically, about Open Policy, PW9 has deposed that Open Policy is issued to a person on the basis of turnover and he is supposed to give the declaration for each & every transaction to the insurance company for insuring the same, under open policy and declarations are to be given compulsorily, within a particular period as stipulated, within the policy itself. He has further deposed that if the sum assured is exhausted, then no declaration is adjusted. He has further deposed that the underwriting means booking of insurance business and before booking to check the business and to see its viability. He has further deposed that the underwriting dockets were not available in the file of this case.
CBI vs. Rajesh Kohli & Ors. 27 of 112 pages 28 CBI case . No.21/11
66. PW10, Sh. A.N. Raina has deposed that he was working as Assistant Manager in M/s Guru Sons Communications Pvt. Ltd, at 109, South Extension, PartII, PlazaI, New Delhi, since 1997. He has further deposed that premises no. 397, Ground floor, Masjid Moth, South Extension, New Delhi, also belonged to their company. He has further deposed that M/s Evershine Enterprises never existed at premises no. 397, Ground floor, Masjid Moth, South Extension, New Delhi.
67. PW11, Sh. Brijesh Kumar has deposed that during the year 2002, he was working as Assistant Manager in the State Bank of Bikaner and Jaipur, Jawalaheri, Market Branch, Paschim Vihar, New Delhi.
68. PW11 has further deposed that vide seizure memo, dated 01.11.2002, he had handed over various documents, mentioned at serial no. 1 to 12, to the IO, Sh. R.P. Kaushal, the then Addl. SP, CBI. The copy of the same has been proved as Ex.PW11/A. CBI vs. Rajesh Kohli & Ors. 28 of 112 pages 29 CBI case . No.21/11
69. PW11 has further deposed that the letter, dated 20.07.02, was handed over to him by Sh. Jagan Nath Grover, who was the Manager (P), at the relevant time. He has proved the said letter as Ex.PW11/A1, bearing the signatures of said Sh. Jagan Nath Grover, at pt. A, which have been duly identified by the him, as he had worked with him in the official capacity.
70. PW11 has further deposed that the letter, dated 16.07.02, is in the handwriting of Sh. Jagan Nath Grover, the then Manager(P), which bears the signatures of Sh. R.S. Rangy, the then Chief Manager, at pt.A, which have been duly identified by the witness as he had worked with him and had seen him signing and writing. The said letter has been proved as Ex.PW11/A2.
71. PW11 has further deposed that the account no. 4577 was opened in the name of accused Arvind Kumar Sharma. The copy of said account opening formcum CBI vs. Rajesh Kohli & Ors. 29 of 112 pages 30 CBI case . No.21/11 specimen signature card, has been proved as PW11/A3, which has also been duly certified by Sh. Jagan Nath Gover, the then Manager(P), bearing his signatures at pt.A, which have been duly identified by the witness as he had seen him signing and writing in the official capacity.
72. PW11 has further proved the statement of account, pertaining to account no. 4577 (running into 21 pages), which was opened in the name of accused Arvind Kumar Sharma as Ex.PW11/A4. The said statement of account has also been duly certified by Sh. Jagan Nath Gover, the then Manager(P), bearing his signatures at pt.A, which have been duly identified by the witness as he had seen him signing and writing in the official capacity.
73. PW11 has further deposed that vide seizure memo, dt. 27.03.03, he had handed over documents, mentioned at serial no. 1 to 7, to Sh. R.P. Kaushal. The copy of the same has been proved as Ex.PW11/A5, CBI vs. Rajesh Kohli & Ors. 30 of 112 pages 31 CBI case . No.21/11 bearing his signatures at pt. A, which this witness has duly identified.
74. PW11 has further deposed that pay order no.
808424, dt. 30.09.98, for sum of Rs.27,000/, was issued in favour of National Insurance Co. Ltd., which was handed over to CBI, vide seizure memo, dated 27.03.03, which is Ex.PW11/A5. The said pay order has been proved as Ex.PW11/A6.
75. He has further deposed that the cheque no. 957346, dt. 20.09.98, for sum of Rs.27,041/, was issued from account no. 4577 of accused Arvind Kumar Sharma for issuance of pay order in favour of National Insurance Company Ltd., which has been proved as Ex.PW11/A7 and the pay in slip, dated 30.09.98, has been proved as Ex.PW11/A8. He has further deposed that the aforesaid instruments were handed over by him, vide seizure memo, Ex.PW11/A.
76. PW12, Sh. Pankaj Jain is an independent witness, CBI vs. Rajesh Kohli & Ors. 31 of 112 pages 32 CBI case . No.21/11 who was running a factory in the name and style of M/s H.C. Jain Plastic Industries at Dhuri, since 19951996. He has further deposed that he had never heard about existence of any firm by the name of M/s K.C. Pipe Industries at Dhuri, in the year 199798 and that no such firm existed, at Dhuri.
77. PW13, Sh. Gian Chand has deposed that he was running a factory in the name and style of M/s Sagar Plastic Industries, at Dhuri for the last 3233 years and that they were manufacturing plastic pipes. He has further deposed that he had never heard about any firm by the name of M/s K.C. Pipe Industries, at Dhuri, in the year 19971998. He has further deposed that no such firm ever existed.
78. PW14, Sh. B.S. Bisht has deposed that during the period w.e.f 2000 to December, 2004, he was posted in CBI, Economic Offences Wing, New Delhi. He has further deposed that during the course of investigation of this case, he had assisted Sh. R.P. CBI vs. Rajesh Kohli & Ors. 32 of 112 pages 33 CBI case . No.21/11 Kaushal, Addl. SP, IO of this case, and had recorded the statements of Sh. Mohan Mehto, Surinder Kumar, Sh. P.R. Rastogi and Sushant Rastogi. He has further deposed that the statements of the above said persons were correctly recorded by him.
79. PW14 has deposed that he had examined PW A.N. Raina, regarding the fact as to whether the firm, M/s Evershine Enterprises existed or not. He has further deposed that he had visited the address of the said firm, where he had examined PW A.N. Raina, who was the Assistant Manager and made statement that for the last 10 years, firm in the name & style of M/s Guru Sons Communications Pvt. Ltd., was functioning there. This indicates that the claimant firm did not exist at the given address.
80. PW15, Sh. Ranjit Singh was the Block Level Extension Officer. He turned hostile and did not support the version of the CBI.
CBI vs. Rajesh Kohli & Ors. 33 of 112 pages 34 CBI case . No.21/11
81. PW16, Sh. R.K. Kaul has deposed that on 03.03.03, he was posted as Assistant General Manager in National Insurance Company, Delhi, Regional OfficeI, Connaught Place, Jeevan Bharti Building, New Delhi.
82. PW16 has further deposed that vide order, dated 03.03.03, he had accorded sanction for prosecution, in respect of accused Vinod Kumar Bhutani, who was the then Assistant Administrative Officer in NIC, Divisional OfficeX, Delhi, for commission of offence, punishable under section 120B read with 420, 467, 468, 471 IPC and under section 13(2) read with section 13(i)(d) of Prevention of Corruption Act, 1998. The sanction has been proved by him as Ex.PW16/A (running into two pages). He has further deposed that he had gone through the investigation report of CBI and had perused the statements of witnesses and documents, mentioned in the evidence and was satisfied that accused Vinod Kumar Bhutani had committed the aforesaid offences and that being Assistant General Manager, he was the competent CBI vs. Rajesh Kohli & Ors. 34 of 112 pages 35 CBI case . No.21/11 authority to remove him. He has further identified his initials, on first page & signatures, on 2nd page, at pt. A, on the said order. Nothing appeared on record to show that there was non application of mind while the said sanction was accorded in this case.
83. PW17, Sh. Bhagirath Lal was sub Post Master in the Post Office, Dhuri, as on 01.05.02. He has deposed that as per his knowledge, there was no such company in the name of M/s K.C. Pipes Industries & M/s Allied Transport Company, at Dhuri, in 19971998.
84. PW18, Sh. N.K. Grover has deposed that during the period w.e.f 28.01.02 to 24.06.05, he was posted as an officer in Oriental Bank of Commerce, A Block, Connaught Place, New Delhi and was an Incharge of the Current Accounts.
85. PW18 has further deposed that account no. 5066, dated 11.07.97, was opened by one Mrs. Sushila, in the name of Evershine Enterprises, 66, Star CBI vs. Rajesh Kohli & Ors. 35 of 112 pages 36 CBI case . No.21/11 Apartment, Sector9, Rohini, Delhi, bearing signatures of the accused, Arvind Kumar, which were also verified by Mrs. Harvinder Kaur, officer of the bank. The said account opening form has been proved by the witness as Ex.PW18/A, bearing the signatures of said Mrs. Harvinder Kaur, whose signatures have also been duly identified by him, as he had seen her writing and signing in the official capacity. He has further deposed that the said account opening form also bears the photograph & specimen signatures of accused Devender Kumar, the proprietor of M/s Evershine Enterprises, at pts. A12 & A14.
86. PW18 has further deposed that cheque, which was issued by Indian Overseas Bank, was deposited in their branch, on 06.03.98, as per the stamp of Oriental Bank of Commerce at the back of the said cheque, which has been duly proved as Ex.PW18/B.
87. PW18 has further proved the statement of account in respect of M/s Evershine Enterprises, which is CBI vs. Rajesh Kohli & Ors. 36 of 112 pages 37 CBI case . No.21/11 Ex.PW18/C (consisting of two sheets). He has further deposed that the said statement has also been certified, under Bankers Book of Evidence Act, on which he has identified his signatures at pt. A, on each sheet. He has further deposed that the cheque, amounting to Rs.2,77,306/, which is already Ex.PW18/B, was credited in account no. 5066 of M/s Evershine Enterprises, on 06.04.98, through clearing, which has been shown at pt. B, on Ex.PW18/C.
88. PW18 has further deposed that vide letter, dated 25.02.02, he had handed over the original account opening form and account statement of M/s Evershine Enterprises to the SP,CBI, New Delhi, which has been proved as Ex.PW18/D. He has further deposed that the account no. 5066 of M/s Evershine Enterprises had been closed and the last balance, according to Ex.PW18/C, was zero.
89. PW19, Sh. Gurmail Singh was the President of Dhuri Truck Transport Union, in the year 2001 and was CBI vs. Rajesh Kohli & Ors. 37 of 112 pages 38 CBI case . No.21/11 running the said business of truck transport, for the last 2530 years at Dhuri, Punjab. He has deposed that there was no transport company, under the name and style of M/s Allied Transport Company at Dhuri, during the period, 19971998. He has further deposed that at the relevant time, there was no such company working at Dhuri.
90. PW20, Sh. Mehar Chand Goel has deposed that in the year 19971998, he was running a pipe factory, in the name of M/s Friends PVC Industries, at Dhuri. That during the aforesaid period, 1820 pipe factories were running at Dhuri. He has further deposed that as per his knowledge, there was no factory, running in the name of M/s K.C. Pipe Industries, at Dhuri. He has further deposed that his factory was established in the year 1974 and was still in existence and that he used to transport pipes to the buyers through transport companies. He has further deposed that as per his knowledge, there was no transport company in the name of M/s Alied Transport Company, at Dhuri, CBI vs. Rajesh Kohli & Ors. 38 of 112 pages 39 CBI case . No.21/11 during the period 19971998.
91. PW21, Sh. Jyoti Kumar, was one of the Investigating Officer of this case. He has deposed that investigation of this case was entrusted to him on 23.01.01. He has further deposed that at that time, Sh. Rajender Prasad was the Superintendent of Police, whose signatures have been identified by him, at pt. B, on the FIR, which is Ex.PW21/A. He identified signatures of Sh. Rajender Prasad since he had worked with him.
92. PW21 has further deposed that during the course of investigation, he had examined & recorded statements of some witnesses and had also seized documents. He has further deposed that the said case was subsequently, transferred to Sh. R.P. Kaushal, the then Additional Superintendent of Police, in the month of February, 2001, for further investigation.
93. Further, PW21 has reiterated, seizure memo, dated 08.02.01, which is already Ex.PW7/A, on which, he has CBI vs. Rajesh Kohli & Ors. 39 of 112 pages 40 CBI case . No.21/11 identified his signatures at pt. B. He has further deposed that he did not prepare any other document except the said seizure memo.
94. PW22, Sh. R.P. Kaushal is the Investigating Officer of this case. He has deposed that during the period from 2002 to 2006, he was posted as Additional, Superintendent of Police, CBI, EOWI, New Delhi. He has further deposed that the present case was handed over to him by PW21, Sh. Jyoti Kumar, the then Deputy Superintendent of Police, CBI, for further investigation.
95. PW22 has further deposed that during the course of investigation, he was also assisted by other IOs namely, B.S. Bisht, B.M. Pandit, S.L. Garg, who were all Inspectors along with Smt. Rekha Sangwan, the then SI and others.
96. PW22 has further deposed that during the course of investigation, he had recorded the statements of CBI vs. Rajesh Kohli & Ors. 40 of 112 pages 41 CBI case . No.21/11 witnesses and had also collected/seized documents from the concerned persons/authorities.
97. PW22 has further deposed that he had also collected specimen and admitted handwritings of the accused persons, which were sent to CFSL for comparison and for obtaining expert's opinion. That the said expert's opinion was received in the office of CBI, which had been filed alongwith the documents in the court. He has further deposed that while sending the above mentioned documents to CFSL, he had sent questioned documents, marked as Q1 to Q139, specimen writings / signatures, marked as S1 to S92 and admitted writings/signatures, marked as A1 to A75 through SP, CBI, EOW, vide letter, dated 09.12.2002, in a sealed cover, under the signatures of the then S. P. Shri Alok Mittal of CBI, EOW, Delhi. The copy of said expert opinion has been proved as Ex. PW 22/A. The experts opinion goes unchallenged on record.
CBI vs. Rajesh Kohli & Ors. 41 of 112 pages 42 CBI case . No.21/11
98. PW22 has further proved the expert's opinion, received in this case, which is Ex.PW22/B.
99. PW22 has further deposed that vide letter, dated 27.6.2002 of Shri S. Roy, he had received the enclosures as mentioned in the letter, dated 27.6.2002, copy of same has been proved as Ex. PW 22/C.
100. PW22 has further deposed that vide seizure memo, dated 17.9.2002, he had seized documents from Shri Deepak Chaudhary, the then AAO, NIC, DO10, New Delhi. The copy of said seizure memo has been proved as Ex. PW22/D, which bears his signatures at point A and that of Shri Deepak Chaudhary at point B, which have been duly identified by the witness.
101. PW22 has further deposed that he had also received the details regarding six policies, vide letter dated 19.09.2002, copy of same has been proved as Ex. PW22/DB.
CBI vs. Rajesh Kohli & Ors. 42 of 112 pages 43 CBI case . No.21/11
102. PW22 has deposed that he had also collected documents, vide seizure memo, dated 01.11.2002 from Shri Brijesh Kumar Sharma, the then Asstt. Manager of State Bank of Bikaner & Jaipur, Paschim Vihar, New Delhi, copy of the same has been proved as Ex.PW22/E.
103. PW22 has deposed that he had also collected documents, vide letter dated 03.12.2002 from Sh. S. Roy, the then Assistant Manager.
104. PW22 has deposed that he had also seized documents, vide seizure memo, dated 27.03.03, from Sh. Brijesh Kumar Sharma, the then Assistant Manager, which has been proved as Ex.PW11/A5, bearing the impressions of his signatures at pt. B, which have been identified by the witness.
105. PW22 has further deposed that vide seizure memo, Ex.PW11/A5, he had seized several documents, out of which, one cheque, which is Ex.PW11/A6, has CBI vs. Rajesh Kohli & Ors. 43 of 112 pages 44 CBI case . No.21/11 been cited in this case.
106. PW22 has deposed that he had also filed supplementary charge sheet against accused V.K. Bhutani on 30.04.03, against whom, he had obtained sanction for prosecution, which is Ex. PW16/A.
107. PW23 S. K. Gupta also reiterated about the documents, Ex.PW22/A, vide which the specimen signatures of accused Vinod Kumar Bhutani were obtained in his presence. He identified his signatures at point A on the same and that of IO, Shri R. P. Kaushal, at point B. He further deposed that accused Vinod Kumar Bhutani voluntarily gave the specimen signatures.
108. Nothing has appeared in the testimony of witnesses of the prosecution that discredits the version of the prosecution. On the other hand, the prosecution witnesses have proved the case of the State. CBI vs. Rajesh Kohli & Ors. 44 of 112 pages 45 CBI case . No.21/11
109. Now, I come to the Defence Evidence.
110. DW1 Shri B. K. Sachdeva proved on record the claim procedural manual of NIC, which is Ex. DW1/A. This document has not even been disputed by the prosecution. In crossexamination, he has admitted that the insured cannot be assigned the job of a surveyor. He has further admitted that 20 years job profile of accused Rajesh Kumar Kohli would have enabled him to distinguish between the bogus and genuine claims while processing the claim in question. He further admitted that it was the duty of the Divisional Manager to ensure that his subordinate functions as per the rules honestly.
111. DW2 Vinod Kumar Bhutani (accused) admitted the specimen signatures given by him on Ex.PW22/A. He has identified the signatures on the various documents available on record which have been proved by the prosecution.
CBI vs. Rajesh Kohli & Ors. 45 of 112 pages 46 CBI case . No.21/11
112. This witness has, therefore, not placed anything on record to discredit the version of the prosecution. On the other hand, he has corroborated the case of the prosecution by admitting his writing and signatures on the documents, proved on record by the prosecution.
113. DW3 is accused Rajesh Kumar Kohli. He has also admitted, in his deposition, his signatures on various documents placed and proved on record by the prosecution. His over all deposition is general in nature and do not place or prove anything on record to disprove the case of the prosecution or to show that he was innocent in the matter of allowing the false and bogus claim in the present case.
114. The deposition of the defence witnesses, therefore, do not bring anything on record to show that either the prosecution story is false or accused persons are innocent. On the contrary it corroborates and justify the prosecution version only.
CBI vs. Rajesh Kohli & Ors. 46 of 112 pages 47 CBI case . No.21/11
115. The marine insurance claim procedural manual duly proved as Ex.DW1/A by the defence itself and not disputed by the prosecution provides the following salient provisions, which were grossly flouted in this case:
"............the claim settling authority should use his discretion by recording his reasons, in detail.
1. Intimation of Claim (1.1) Intimation of claim is normally received from claimant by letter, telegram or even by phone, followed by a letter. Each intimation should be recorded in writing, confirming the message and date and time of its receipt.
(1.2) On receipt of a claim intimation, the dealing office should; (a) ascertain whether insurance policy is in existence and
(b) allot a claim number
(c) prepare a claim docket filling in all the details
(d) make an entry in claim intimation register in serial order.
2. OPEN DELIVERY FROM CARRIERS/THIRD PARTY (2.1) In order to establish that the goods have been lost or damaged whilst in the custody of carriers, claimants have an obligation to apply for open assessment delivery CBI vs. Rajesh Kohli & Ors. 47 of 112 pages 48 CBI case . No.21/11 from the carriers. Failure to do so would prejudice the insured's right of recovery under the policy.
(2.2) Where the written application for open/survey delivery is refused by the carriers and a survey is disallowed by them, the claimant shall be asked to take delivery under a written protest after survey by a surveyor deputed by the dealing office. (2.3) In case of nondelivery/short delivery, the claimant shall be asked to obtain and send to the dealing office either a nondelivery/short delivery certificate from the Port Authorities or the original Railway Receipt (RR), Lorry Way Bill (LWB) or Air Consignment Note duly endorsed by the carriers, confirming nondelivery/short delivery or a separate nondelivery/short delivery certificate, as the case may be.
3. APPOINTMENT OF SURVEYOR 3.1 It is necessary to decide whether a survey of goods reported lost or damaged is to be arranged. 3.2 Claim exceeding Rs.20,000/ should be surveyed by a duly licensed surveyor.
3.6 In marine insurance unlike other classes of insurance, survey fee is initially paid by the claimant. The survey fee will be reimbursed to the claimant along with the claim amount, if the claim is admissible under the policy. This should be brought to the notice of the claimant whilst advising him about appointment of CBI vs. Rajesh Kohli & Ors. 48 of 112 pages 49 CBI case . No.21/11 surveyor.
3.7 The dealing office shall also arrange for surveys 'without prejudice' on losses reported under policies issued by other policy issuing offices which are not under its jurisdiction. Thereafter, the dealing office shall process the entire claim upto final settlement keeping the policy issuing office informed of all developments. 3.10 Normally, the survey report should be finalized within three weeks. The surveyor shall be instructed to keep the dealing office informed of the progress of his work in case of delay. He shall alert dealing office immediately if it is known that a third party is responsible for the loss so that arrangements for a joint survey with the third party's representative can be made. 3.11 If the loss is a major one, the surveyor shall be asked to submit one or more interim reports. 3.12 The dealing office should keep in touch with the surveyors throughout.
4. DOCUMENTS REQUIRED FOR SETTLEMENT OF ALL CLAIMS.
4.1 Documents required for settlement of all claims are as under:
i. Original insurance policy/declaration under the open policy, duly endorsed by the insured/claimant. ii. Original or a signed copy of sales invoice along CBI vs. Rajesh Kohli & Ors. 49 of 112 pages 50 CBI case . No.21/11 with packing list.
iii. Copy of Bill of Lading (in case of sea voyage).
iv. Copy of Bill of Entry.
v. In case of General Average, Counter Guarantee or
original Cash Deposit Receipt with Letter of Transfer. vi. Letter of Subrogation duly stamped (only where recovery from carriers is possible). vii. Special Power of Attorney( wherever applicable). viii. Lost Over Board Certificate where loss has taken place during loading.
ix. In case of shortlanding/nondelivery of complete assignment:
Original contract of affreightment duly endorsed in our favour viz. Railway Receipt, Transport Receipt, full set of Bill of Lading, Air Consignment Note and Postal Receipt etc as applicable. The original contract of affreightment should be endorsed by the carrier confirming shortlanding/nondelivery of the entire consignment by them or with a separate shortlanding/non delivery certificate. x. In case of partial nondelivery/shortlanding:
Nondelivery and/or landed but missing certificate from the carriers or Port Trust. xi. In case of partial loss or damage:
a. Open assessment report by the carrier and/or b. Survey Report of independent survey.
c. Claim form (as per Annexure'A')
d. Claim bill (where necessary).
xii. Copies of correspondence exchanged with the
carriers along with registered AD cards (wherever CBI vs. Rajesh Kohli & Ors. 50 of 112 pages 51 CBI case . No.21/11 recovery from the carriers is possible). xiii. Banker's Certificate confirming non receipt of export proceeds in India in an approved manner (in case of claims under export policies settled in India).
6.CLAIM SETTLEMENT ON DESPATCHES BY INLAND TRANSIT (RAILWAYS OR ROAD CARRIERS OR OTHER MODES OF TRANSIT FOR DESPATCHES WITHIN INDIA).
6.1 Short and Non Delivery 6.1.1 When a claim for short delivery or non delivery of a consignment is reported, consignees should be advised to obtain signed certificate of the delivery authorities on the reverse of the Receipts certifying that the packages are not available for delivery or obtain a separate shortlanding or nondelivery certificate. The consignees should be requested to lodge a valued claim on the carriers by Registered Post Acknowledgment Due within a period as set out in 6.2.2 below. Tracing agents should also be engaged, whenever necessary.
9. GENERAL 9.9 All documents must be called for in one go and not in piecemeal.
11. DISCRETION TO BE USED BY DIVISIONAL OFFICE 11.1 The dealing office has to use its discretion judiciously after calling for necessary explanation from the claimant. Reasons for using discretions shall be duly recorded by the person concerned.
CBI vs. Rajesh Kohli & Ors. 51 of 112 pages 52 CBI case . No.21/11 11.2 Where the right of recovery from the carriers/third party is prejudiced the claim amount payable shall be restricted to not exceeding 75 % of the assessed loss other than in respect of excepted Articles as per Indian Railway Act or Carriers Act, where the amount payable shall be the assessed loss less the recovery amount prejudiced."
116. The Manual, Ex.DW1/A, admittedly contains the procedure in case of Marine Cargo Claims to be followed while processing the claims. This manual, as quoted above, provides clearly that wherever, discretion is exercised by the Settling Authority to dispense with the essential requirement the discretion should be judiciously used and reasons thereof in detail should be recorded. In the instant case, admittedly, no reasons were recorded by the settlement authority i.e. accused, Rajesh Kumar Kohli and Vinod Kumar Bhutani.
117. Further, para 12 of the Ma nual, Ex.DW1/1 provides that all the recovery claims should be properly followed up and if no settlement is received from the CBI vs. Rajesh Kohli & Ors. 52 of 112 pages 53 CBI case . No.21/11 Carriers within a reasonable period or if Carrier repudiate the liability the dealing official/legal advisor is required to be requested to give his opinion on the question of filing of a suit based on chances of success and cost involved compared to the claim amount. The decision regarding the legal action is to be taken by the official authorised to settle the claim. In the present case, no action seems to have been deliberately taken on filing of civil suit despite the fact that the claim amount was amounting to Rs. 4.5 lakhs in the year 1998, when it was not a small amount. The duty/responsibility, in this regard, was of accused Rajesh Kumar Kohli as he was the Head of the NIC, DOX and also headed the claim committee concerned.
118. As per the annexure to the procedural manual, marine cargo claim has also the conditions printed on the insurance policies, issued by the NIC, according to which it was necessary for the claimant to obtain and submit the original damage/shortage /nondelivery CBI vs. Rajesh Kohli & Ors. 53 of 112 pages 54 CBI case . No.21/11 certificate from the carrier if the goods were damaged in transit, or if short delivered or nondelivered at all.
119. As per the prescribed procedure, after receipt of the claim intimation and submission of the required documents, the same were required to be processed by the claim clerks or assistants and thereafter recommended to the passing authority i.e. accused Rajesh Kumar Kohli. That despite the claim clerk and assistant being available, the accused Rajesh Kumar Kohli himself dictated the claim note in three instances to the stenographer, Ms. Hem Lata Ahuja, who has been examined as a witness and has deposed to this effect. The said witness has categorically stated that she typed the note, Ex.PW3/D2, contained in page No. 6 & 7 of the claim file Ex. PW1/C relating to M/s Ever Shine Enterprises on dictation of accused Rajesh Kumar Kohli. The said PW Ms. Hem Lata Ahuja has specifically written below her signatures her capacity in the note as 'stenographer'. She, therefore, was merely a typist. CBI vs. Rajesh Kohli & Ors. 54 of 112 pages 55 CBI case . No.21/11 Even otherwise, in case, she had processed the claim accused Rajesh Kumar Kohli and V.K. Bhutani might have insisted her to mention her status as claims clerk, in the claim note. No cogent evidence has been placed on record by the defence to show that she was assigned the job of claims clerk or assistant. PW Hem Lata Ahuja has categorically stated in her deposition that during the relevant period there were 34 Sr. Assistants in the staff in Divisional Office - X. Accused Rajesh Kumar Kohli and accused V.K. Bhutani clearly violated all these norms as they dishonestly abused their position to allow false and fraudulent claim, in this case.
120. The allegations of the prosecution in this case are that in pursuance to the criminal conspiracy, false insurance claims have been obtained by the accused persons from NIC, DOX inasmuch as consignor, consignee and transporters were found nonexistent at their respective given addresses during the relevant period.
CBI vs. Rajesh Kohli & Ors. 55 of 112 pages 56 CBI case . No.21/11
121. From the material on record, it is clear that the aforesaid accused persons dishonestly flouted the procedural manual to cause illegal gain to the claimant herein.
122. It is well settled that criminal conspiracy is hatched in secrecy and no direct evidence may be possible. Circumstantial evidence can always prove it.
123. In the case law reported as State of M. P. V Sheetla Sahai, 2009, Cr. LJ 4436 SC, Hon'ble Supreme Court has held that :
"Often criminal conspiracy is hatched in secrecy and for proving the offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence."
124. In the case law reported as Chaman Lal Vs. State of Punjab, AIR 2009 SC 2972, Hon'ble Supreme Court has held that:
"Essence of conspiracy is unalwful combination and the CBI vs. Rajesh Kohli & Ors. 56 of 112 pages 57 CBI case . No.21/11 complicity of the accused has to be decided after considering all the circumstances proved, before, during and after occurence. Agreement between the conspirators may also be proved by necessary implication."
125. In the case law reported as R. K. Dalmia V The Delhi Administration, AIR 1962 SC 1821, Hon'ble Supreme Court has held that :
"It is not necessary that each member of a conspiracy must know all the details of the conspiracy."
126. In the case law reported as Tribhuvan Nath Vs. State of Maharashtra, AIR 1973 SC P 450, Hon'ble Supreme Court has held that :
"Evidence of one accused can be used against the other accused to prove the existence of conspiracy under section 10 of the Evidence Act."
127. In the case law reported as AIR 1974 SC P 898, Hon'ble Supreme Court has held that :
"Even admission of one accused under section 10 of the Evidence Act, can be used against other accused to CBI vs. Rajesh Kohli & Ors. 57 of 112 pages 58 CBI case . No.21/11 prove criminal conspiracy."
128. In the case law reported as Kehar Singh Vs. State AIR 1988 SC 1883, Hon'ble Supreme Court has held that :
"Action or statement made by one of the accused could be used as evidence against the other by Virtue of Section 10 of the Evidence Act."
129. It was held in the case law reported as AIR 2010 SC 3718 'Muriappan Vs. State of Tamil Nadu' that :
"Facts established should be consistent only with the hypothesis of guilt of the accused. It does not mean that each and every hypothesis suggested by accused must be excluded by proved facts."
130. It was further held that :
"False and inconsistent defences taken by the accused can be taken as additional circumstance against him strengthening the chain of circumstances."
131. In the case law reported as Hashim (K) 2005 Cri LJ 143 CBI vs. Rajesh Kohli & Ors. 58 of 112 pages 59 CBI case . No.21/11 (SC), the Hon'ble Supreme Court has held that "for an offence punishable under section 120B, the prosecution need not necessarily prove that the perpetrators expressly agree do to or cause to be done illegal act; the agreement may be proved by necessary implication".
132. In the case law reported as (2001) 4 Crimes 247 (SC), the Hon'ble Supreme Court has held that "to prove conspiracy, it is not necessary that there should be direct communication between each conspirer and every other but the criminal design alleged must be common to all".
133. It has been held in the case law reported as Firozuddin Basheeruddin (2001) 7 SCC 596 that "the rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interest of security, a person may carry out his part of a conspiracy without even being informed of the identity of his coconspirators. An agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of what lies in their minds".
CBI vs. Rajesh Kohli & Ors. 59 of 112 pages 60 CBI case . No.21/11
134. It was further observed in the aforesaid judgment that "Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions, any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Thus conspirators are liable on agency theory for statements of co conspirators, just as they are for the overt acts and crimes committed by their confrers".
135. Prosecution has established by leading overwhelming evidence on record, as discussed above, that in the instant case, the consignor, the consignee and the transporter were all bogus. The insured himself was appointed as the surveyor. The Survey Report was bogus. No tracer was appointed in this case. The recovery was not actually effected from the carrier. It was deposited by a bankers cheque, which was prepared from the account of the Recovery Agent, Accused Arvind Kumar Sharma and was not from CBI vs. Rajesh Kohli & Ors. 60 of 112 pages 61 CBI case . No.21/11 the transporter as the transporter was non existent.
136. Accused V. K. Bhutani, abusing his power and position as public servant, dishonestly processed the claim in question. It was dishonestly passed by the accused Rajesh Kumar Kohli overlooking the well established mandate prescribed in the Manual, Ex. DW1/A.
137. Accused K. V. Juneja, besides the other material placed and proved on record by the prosecution, had admitted in his statement under section 313 Cr. P.C. that he was employee of the M/s Pooja International and as such collected papers for effecting recovery against the transporters. That he filed bills for recovery and allegedly affected recovery from M/s Akal Goods Carrier, the nonexisting carrier, alleged to be the agent of the transporter and that he deposited the bogus recovery bill with the NIC. His complicity, in the alleged crime, is therefore crystal clear.
CBI vs. Rajesh Kohli & Ors. 61 of 112 pages 62 CBI case . No.21/11
138. Apart from all this, following striking and admittedly proved evidence, on record, clearly indicates that all the accused persons were acting hand in glove and the circumstance show that they entered into a criminal conspiracy in this case and a false and bogus claim was ultimately passed on dishonest considerations in pursuance to the said criminal conspiracy:
(i) As per claim note, Ex.PW3/DX2 (an admitted document) in item no. 9 it is indicated that loss was intimated on 13.2.1998. As per item 10 & 13, the survey was applied for and was arranged on 9.1.1998. How it was that survey was applied for and was arranged by NIC prior to the date, loss was intimated on 13.2.1998. It only speaks of the fraudulent act done in pursuance to the alleged conspiracy.
(ii) No document was available in the claim file to show that Sec. 64 VB was complied with. CBI vs. Rajesh Kohli & Ors. 62 of 112 pages 63 CBI case . No.21/11
(iii) The salvage value of Rs.1600 suggested by the surveyor in his report was not deducted from the claim as it finds no mention in the claim note, Ex.PW 3/DX21, admittedly.
(iv) Documents required as per clause 4.1 of the manual Ex.DW1/A were not obtained for settlement of the claim. No reason recorded either, of any dispensation, admittedly, in case there was an exercise of any discretion.
(v) Claim note Ex.PW3/DX2 admittedly was processed and passed by accused V. K. Bhutani & R. K. Kohli and their signatures on the same have been proved by the expert's opinion also.
(vi) The carbon copy of the voucher of Pooja International (of Red Colour) dated 30.9.1998 clearly shows that some of the particulars were filled in pen subsequent to the carbon copy taken out. This document, therefore, was forged/manipulated later CBI vs. Rajesh Kohli & Ors. 63 of 112 pages 64 CBI case . No.21/11 on and should have aroused a grave doubt, yet as a part of conspiracy, this voucher was accepted by accused Vinod Kumar Bhutani and Rajesh Kumar Kohli of NIC and payment amounting to Rs.3075/ made to alleged Recovery Agent, Pooja International (Commission in respect of the fake recovery shown in respect of the claim in question). The letter, Ex.DW2/DX9, in this regard, of NIC, available in claim file, Ex.PW1/C, also refers to.
(vii) The photographs allegedly taken by the surveyor were not attested and verified by the surveyor as was stated by the claimant in their letter dated 19.3.1998 available in claim file, Ex.PW1/C, bearing the stamp of receipt of NIC dated 23 March, 1998.
(viii) Cheque, Ex.PW18/B, for Rs.2,77,306/ stood credited in A/c No. 005066 of Evershine Enterprises on 6.4.1998 as per Ex.PW18/C. CBI vs. Rajesh Kohli & Ors. 64 of 112 pages 65 CBI case . No.21/11
(ix) Ex. PW18/A, Account Opening Form of Devender Kumar Garg having his signed photo and signatures which matched with the questioned and admitted signatures as per Expert's report.
(x) Vide Ex. PW 20/C, details of documents available in claim file and deficiencies of documents were pointed out by Assistant Manager, NIC, Ltd. but were later on ignored.
(xi) In all the six policies including present one, the agent was Shri B.N. Tiwari (PW in this case) to whom commission was paid by NIC. This is proved by document Ex.PW 9/A.
(xii) Ex.PW11/A7 is the bearer (i.e. self) cheque of Rs.27041 signed by accused Arvind Kumar Sharma, which was given for preparation of banker's cheque of Rs.27,000/ later on deposited as recovery from the Carrier falsely. It is shown to have been debited from account of accused Arvind CBI vs. Rajesh Kohli & Ors. 65 of 112 pages 66 CBI case . No.21/11 Kumar Sharma, as per Ex. PW 2/AA.
(xiii) Ex. PW11/A6 is the bankers' cheque for Rs.27000 in favour of NIC and was deposited as fake recovery amount (not being from the carrier).
(xiv) Accused Rajesh Kumar Kohli admittedly passed the claim. It was done as an abuse of his power as a public servant to make pecuniary gain to the claimant.
(xv) Accused Devender Kumar Garg was Proprietor of M/s Evershine Enterprises and he acted as a Surveyor also and submitted the bogus report dated 15.1.1998.
(xvi) The insured and surveyor are the same person in this case i. e. accused Devender Kumar Garg. His signatures on disputed and admitted documents on record were tallied by Expert as is evident from unassailed report of the expert. CBI vs. Rajesh Kohli & Ors. 66 of 112 pages 67 CBI case . No.21/11 (xvii) Arvind Kumar Sharma is the proprietor of M/s Pooja International. He was appointed recovery agent by accused Vinod Kumar Bhutani. All the recovery amount came from the A/c of this accused i.e. Arvind Kumar Sharma instead of from the transporter (who in fact was non existent), as admittedly he was having the Saving Bank A/c No. 4577 from out of which the banker's cheque in question was got prepared and was deposited with NIC.
(xviii) Ex. PW11/A8 is the application form vide which bankers cheque for Rs.27000/ was got issued by this accused and a self cheque, which has been proved as Ex.PW11/A7 from his account for Rs. 27,041/, which was duly debited to his Saving Bank Account, statement of which has been proved as PW2/4A, on 30.9.98 i.e. the same date on which the application for bankers cheque Ex.PW11/A8 was made and cheque Ex.PW11/A7 was issued. The said CBI vs. Rajesh Kohli & Ors. 67 of 112 pages 68 CBI case . No.21/11 saving bank A/c bear the same A/c number i.e. 4577 which is of accused Arvind Kumar Sharma. (xix) The ConsignorEvershine Enterprises, the consigneeK. C. Pipe Industries and Transporter
- M/s Allied Transport Company were found non existent.
Once the prosecution has shown that M/s Evershine Enterprises was non existent, the accused having specific knowledge and documents relating to the said enterprise, was required under section 106 of the Evidence Act to prove the same on record. But he has miserably failed to do so.
In the case law reported as Krishna Kumar Vs. UOI, AIR 1959 SC 1390, and in case Indore Municipal Corporation Vs. Caltex (India) Ltd, AIR 1991 SC 454, Hon'ble Supreme Court has held that :
"If the facts are within the knowledge of the accused, it is enough to establish facts which give rise to a suspicion and then by reason of Sec. 106 of the Evidence Act to throw the onus CBI vs. Rajesh Kohli & Ors. 68 of 112 pages 69 CBI case . No.21/11 on him to prove his innocence."
(xx) Ex.PW18/C is Statement of A/c of Evershine in OBC where the claim cheque issued by NIC in favour of accused D. K. Garg was deposited and encashed. This A/c shows the address of Evershine Enterprises as 66, Star Apartments, Sector 9, Rohini, which is different from the address, given by the claimant in the insurance policy. (xxi) Accused V.K. Bhutani in his statement, under section 313 Cr.P.C stated that claim bill, Ex.PW3/D8 was received in this case along with the survey report from Bhatinda Office. Sanction order, Ex.PW16/A is against him. As per proceedural manual, the claim was required to be processed by Bhatinda Office and not by Delhi Office. The proceedure was flouted obviously with dishonest intention.
(xxii) The expert opinion, which is Ex.PW22/B CBI vs. Rajesh Kohli & Ors. 69 of 112 pages 70 CBI case . No.21/11 shows that accused D.K. Garg was the proprietor of M/s Evershine and acted as the surveyor also as his signatures and writing on the questioned documents and admitted documents tally, as per expert's opinion. The expert's opinion in this case goes unchallenged.
In the case law reported as Murari Lal Vs. State of M. P., AIR 1980 SC 531, Hon'ble Supreme Court has held that :
"In cases where the reasons for the opinion are convincing and there is no reliable evidence through a doubt, the uncorroborated testimony of a handwriting expert may be accepted."
(xxiii) Accused K.V. Juneja admitted in his statement under section 313 Cr.P.C that he had prepared and forwarded the bill against the recovery effected and deposited with NIC, in this case. (xxiv) Accused Arvind Kumar Sharma admitted in his statement under section 313 Cr.P.C that CBI vs. Rajesh Kohli & Ors. 70 of 112 pages 71 CBI case . No.21/11 account no. 4577 belonged to him and cheque, Ex.PW2/AA for Rs.2741/ was debited from his account. Accused A.K. Sharma also admitted in his statement Ex.PW11/D, vide which amount of Rs. 27,000/ was recovered from M/s Akal Goods Carrier (which was in fact found nonexistent). (xxv) Accused D.K. Garg stated in his statement that he sold goods to M/s K.C. Pipe through an agent but he did not give the name of the agent. He stated at the same time that he had no occasion to visit the said client i.e. M/s K.C. Pipe. This supports the view that M/s K. C. Pipe in fact did not exist. (xxvi) The Survey Report, in this case, was not accompanied with the appointment letter of the surveyor, which might have been issued by the NIC Ltd., Sangrur, Punjab, to the surveyor. This supports the view that the survey report was bogus in this case. (xxvii) There is no mention of consignor/insured CBI vs. Rajesh Kohli & Ors. 71 of 112 pages 72 CBI case . No.21/11 having contacted the surveyor.
(xxviii) In para 12 of the Survey Report in respect of 'place of Survey', it is mentioned that "at the premises of transport company at Dhuri by D. K. Garg, Surveyor". However, at the address given on the GR dated 2.11.1998, there was no office or premises of this transporter at Dhuri. This indicates that Survey Report was bogus and was prepared without conducting any actual survey. (xxix) In para 22 of the Survey Report, the Salvage value is arbitrarily calculated as Rs.1600/ i.e. Rs.200 per drum without indicating how it was arrived at, what was the ground and on which cogent information this calculation of such a meager sum arbitrarily was arrived at. (xxx) The photographs attached with the report do not reflect any distinctive feature or date or place of the survey. Such photographs could be of CBI vs. Rajesh Kohli & Ors. 72 of 112 pages 73 CBI case . No.21/11 any drum of any consignment and do not reflect salient features of the alleged consignment. (xxxi) There is no intimation letter addressed to NIC, Sangrur, either from consignee or from consignor attached with the survey report, mentioned in the claim note. No such document is available in the claim file.
(xxxii) In case the damaged/short delivery was reported by representative /agent of M/s Evershine Enterprises to NIC, Sangrur, Punjab, on 9.1.1998, as per the provision contained in para 3.7 of the Ex.DW 1/A, the dealing office i.e. NIC Sangrur was to process the entire claim upto the final settlement of the claim keeping the policy issuing office i.e. NIC DOX, informed of all the developments. Accused Rajesh Kumar Kohli and accused Vinod Kumar Bhutani themselves entertained, processed and passed the claims in flagrant violation of the said provision. CBI vs. Rajesh Kohli & Ors. 73 of 112 pages 74 CBI case . No.21/11 (xxxiii) The claim dated 21.1.1998, in this case, was marked by accused Rajesh Kumar Kohli. The claim as well as the report dated 15.1.1998 do not bear any stamp or date of the receipts section indicating suspicion as to the mode as to how it reached accused Rajesh Kumar Kohli. Further, the first letter of the party, available in the claim file, is dated 12.1.1998, vide which duly discharged insurance policy is stated to have been sent to NIC. There is no mention as to how, when and to whom the claim was first intimated by the claimant, in case, if at all it was intimated to NIC Sangrur. On the contrary, in the claim note at para 9 against the collumn of "Loss Intimation on" the date 13.2.1998 is mentioned. It shows that on 13.2.1998, the letter was treated as claim intimation letter whereas it is not so actually.
(xxxiv) It is apparent that neither in the claim note, nor in the claim file, there is any material to show that NIC, Sangrur, ever informed NIC DOX, CBI vs. Rajesh Kohli & Ors. 74 of 112 pages 75 CBI case . No.21/11 about the claim intimation by M/s Evershine Enterprises to them. It is needless to mention that despite all this the accused Rajesh Kumar Kohli and Vinod Kumar Bhutani processed and passed the claim. The survey report does not bear any mark of forwarding or is not accompanied by any forwarding letter of NIC, Sangrur.
(xxxv) In the claim, in para 9, "Loss Intimation on" the date is given as 13.2.1998 whereas the survey is shown to have been applied on 9.1.1998, as per para 10 of the claim note.
(xxxvi) There is no mention in claim nor in any document in the claim file that any verification was carried out by NIC Sangrur and accused Devender Kumar Garg was appointed as Surveyor.Admittedly, NIC Sangrur, has not forwarded his report, available on record of the claim file, Ex. PW1/C. CBI vs. Rajesh Kohli & Ors. 75 of 112 pages 76 CBI case . No.21/11 (xxxvii) The original invoice and GR or carbon copy with endorsement of the consignee regarding taking of damaged or short delivery of consignment was not available. The same was not even verified as per claim note, Para 24, which was, in fact, mandatory. Para 24 (ix) of the claim note, mentions damaged / shortage certificates issued by M/s Akal Goods Carriers (Carrier Agent) but there is no mention whether Akal Good Carrier were verified to be the actual agent of the M/s Allied Transport Company.
(xxxviii) There was no document on record showing authority of Akal Goods Carrier to have issued damaged / short delivery certificate. As such, the alleged copy of the certificate could not be considered as the certificate issued by the Transporter. Besides this, on record, there is no copy of prescribed letter of subrogation and SPA conferring the right of recovery with NIC, on record. CBI vs. Rajesh Kohli & Ors. 76 of 112 pages 77 CBI case . No.21/11 (xxxix) No underwriting document is available with the claim file.
(xxxx) The compliance of the section 64 VB of the Insurance Act, 1938, is not appearing to be sufficiently mentioned.
(xxxxi) Accused Rajesh Kumar Kohli and Vinod Kumar Bhutani were not laymen. They were supposed to process and pass the claim in question after fully screening it with hawk's eye / a penetrated sharp professional eye to ensure that the money of public exchequer is not plundered by the bogus claim.
(xxxxii) No actual recovery was made from the transporter in this case. It was without any justification.
(xxxxiii) PW 8 Ms. Hemlata Ahuja clearly deposed that she typed the claim note at the dictation of the CBI vs. Rajesh Kohli & Ors. 77 of 112 pages 78 CBI case . No.21/11 accused Rajesh Kumar Kohli. This shows how enthusiastic was Rajesh Kumar Kohli to ensure passing the bogus claim in this case. (xxxxiv) PW4 Visheshwar Nath deposed that his Agency Code and name was used by accused Rajesh Kumar Kohli and Vinod Kumar Bhutani for getting the policy made and that he used to get the amount of commission credited in his account and then the accused persons took back from him in cash. (xxxxv) PW12, PW15, PW17, PW20 all have proved that consignee M/s K. C. Pipe Industries, Dhuri, did not exist.
(xxxxvi) PW17 and PW20 proved that M/s Allied Transporter did not exist at the given address. (xxxxvii) The recovery amount is merely 10% of the claim sanctioned. No reason was sought by or furnished to NIC as to why such a small amount CBI vs. Rajesh Kohli & Ors. 78 of 112 pages 79 CBI case . No.21/11 was settled as recovery.
(xxxxviii) Despite the fact that the required documents i.e. damaged / shortage certificate, copy of monetary claim letter and copy of RR were not available in the file, the claim was allowed in this case. In the instant case, the claim should has been settled on nonstandard basis.
139. It is, thus, amply clear that all the accused persons criminally conspired to cheat the NIC Ltd and ultimately NIC Ltd was cheated of the claim amount.
140. On cheating, the Hon'ble Apex Court has held that "when a person gets an order by playing fraud upon the competent authority, such order cannot be sustained in the eyes of law as fraud unravels everything. Fraud and justice never dwell together. Fraud is an anathema to all equitable principles and any affair tained with fraud cannot be perpetuated or saved by the application of any equitable doctrine". {Inderjeet Singh Grewal vs. State of Punjab, 2011(4) RCR (criminal) 1(SC)}. CBI vs. Rajesh Kohli & Ors. 79 of 112 pages 80 CBI case . No.21/11
141. In the case law reported as Devender Kumar Singla vs. Baldev Krishan Singla, 2004 Cri LJ 1774 (SC), the Hon'ble Supreme Court has observed the following points as essential ingredients to attract section 420 IPC:
1. Cheating;
2. Dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and
3. Mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under section 420."
142. In the case law reported as Kuldip Sharma, 2000, Cri LJ 1272(Del), it has been held by the Hon'ble High Court that "Where an accused obtained payments from the Government of India by sending bills containing number of bogus railway receipts representing that the contracted goods had been booked and despatched under the bogus railway receipts mentioned in the bills and the false representation made by the appellants induced the Government to part with the money to satisfy those claims put forward by the appellants, the conviction of the appellants for the offence under section 420 was CBI vs. Rajesh Kohli & Ors. 80 of 112 pages 81 CBI case . No.21/11 held sustainable'.
143. In the case law reported as Ram Prakash Singh, AIR 1998 SC 296, the Hon'ble Supreme Court has held that 'Where the accused, a Development Officer in LIC, introduced false and fake insurance proposals to LIC with a view to earn promotion on the basis of inflated business, he was convicted under sections 420/511, 420/120B, 468 & 477 A'.
144. In the case law reported as AIR 2004 SC 3229, the Hon'ble Supreme Court has held that "For an offence under section 471, one of the necessary ingredients is fraudulent and dishonest use of the document as genuine. The act need not be both dishonest and fraudulent. The use of document as contemplated by section 471 must be voluntary one. For sustaining conviction under section 471, it is necessary for the prosecution to prove that accused knew or had reason to believe the document in question to be forged and this has to be adjudicated on the basis of materials and the finding recorded in that regard is factual".
145. It has been asserted by the defence, during the course of arugments, that there are defects in the investigation. It is true that the present case has not CBI vs. Rajesh Kohli & Ors. 81 of 112 pages 82 CBI case . No.21/11 been very effectively investigated by the Investigating Officers. Had it been so investigated much more could have come on the surface and much larger rackets could have been unearthed, regarding the fraudulent claims that were being operating in NIC. However, so long as case of the prosecution on the basis of circumstances and documents, established and available on record are available, the defect, if any, in the investigation of this case, confers no benefit to the accused persons.
146. In the case law reported as 2007 Cri LJ 758(SC), it has been held by the Hon'ble Supreme Court that 'Defective investigation may discredit the prosecution, but prosecution evidence may not necessarily be discarded on the ground. If the evidence is otherwise reliable and trustworthy, the court may convict the accused. Reminiscence of investigating officer will not ipso facto weaken the case of the prosecution'.
147. In the case law reported as State vs. Santosh Kumar Singh, 2006(4) Crimes 782 (Del), the Hon'ble High Court has held that CBI vs. Rajesh Kohli & Ors. 82 of 112 pages 83 CBI case . No.21/11 'Courts should not be influenced by suspicious roles played by the investigation officer during investigation and criminal justice should not be made a casualty for wrongs committed by investigation officers.'
148. In the case law reported as Dhanraj Singh 2004 Cri LJ 1807 (SC), it has been held by the Hon'ble Supreme Court that 'In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to plying into the hands of the investigating officer if the investigation is designedly defectively. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. Then the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice'.
149. From the above discussion, it is abundantly clear that all the accused persons entered into criminal conspiracy to cheat the NIC by passing of the CBI vs. Rajesh Kohli & Ors. 83 of 112 pages 84 CBI case . No.21/11 fraudulent and bogus claim, based upon false, forged and fabricated documents, which were used by them, in this case.
150. Under the circumstances, I have no hasitation in holding all the accused persons herein guilty of the offence, punishable under section 120B read with section 420, 467, 468, 471 IPC.
151. Further, in view of the above position having emerged clearly on record, there cannot be a escape from concluding that the accused persons have committed the offences as are alleged against them, in this case.
152. Accused persons namely, Rajesh Kumar Kohli, Devender Kumar Garg, Arvind Kumar Sharma, Kunwar Vijay Juneja and Vinod Kumar Bhutani are, therefore, convicted of the offence punishable under section 120B read with section 420, 467, 468, 471 IPC.
CBI vs. Rajesh Kohli & Ors. 84 of 112 pages 85 CBI case . No.21/11
153. Regarding section 13(i)(d) of the Prevention of Corruption Act, 1988, the hon'ble Apex Court has observed that "to attract provisions of section 13(i)(d) of the Prevention of Corruption Act, 1988, public servant should obtain for himself or any other person any valuable thing or pecuniary advantage (i) by corrupt or illegal means or (ii) by abusing his position as a public servant or (iii) without any public interest.{R. Sai Bharathi vs. J. Jayalalitha (2004) 2 SCC 9}.
154. Both the accused persons namely, Rajesh Kumar Kohli and Vinod Kumar Bhutani by abusing their position as public servant caused pecuniary advantage, amounting to Rs.2,77,306/ to the claimaint, without any public interest.
155. Accused Rajesh Kumar Kohli and accused Vinod Kumar Bhutani are also, therefore, convicted of the offence punishable under section 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988, in addition.
156. Accused Devender Kumar Garg was the beneficiary CBI vs. Rajesh Kohli & Ors. 85 of 112 pages 86 CBI case . No.21/11 of false and bogus claim and cheated the NIC, after forging and having used forged and fabricated documents as genuine discussed herein above and is convicted of the offences punishable under section 420, 468 and 471 IPC, in addition.
157. Accused Arvind Kumar Sharma and K. V. Juneja who forged and fabricated fake recovery and the documents relating thereto are convicted of the offence punishable under section 468 read with section 471 IPC, in addition.
158. All the accused persons mentioned hereinabove are, accordingly, convicted.
159. Let the convicts be heard on the point of sentence, as prayed by them, on 30.11.2012.
Announced in the open court ( N. K. Kaushik ) on 20.11.2012 Special Judge, PC Act CBI Dwarka Courts, New Delhi.
CBI vs. Rajesh Kohli & Ors. 86 of 112 pages 87 CBI case . No.21/11 IN THE COURT OF SHRI N. K. KAUSHIK SPECIAL JUDGE (P C ACT) CBI, DWARKA COURTS, NEW DELHI CBI Case No. : 21/11 RC No. : 1(E)/2001/EOWI/New Delhi In the matter of : CBI Versus
1. Rajesh Kumar Kohli, The then Divisional Manager, National Insurance Company Ltd., DOX, New Delhi.
R/o 187, Pragati Apartment, Club Road, Paschim Vihar, New Delhi.
2. Devender Kumar Garg, S/o Late Sh. R.S. Chananmal, R/o : 491, Model Town (Urban Estate), Bhatinda, Punjab.
3. Arvind Kumar Sharma, S/o Late Sh. Shambhu Nath Sharma, R/o GH2/122B, Ankur Apartments, Paschim Vihar, New Delhi63.
4. Kunwar Vijay Juneja, S/o Late Veer Bhan, R/o A26, Saraswati Garden, New Delhi15.
CBI vs. Rajesh Kohli & Ors. 87 of 112 pages 88 CBI case . No.21/11
5. Vinod Kumar Bhutani, The then Assistant Administrative Officer, in National Insurance Company Ltd.
DOX, New Delhi.
(Now posted as Administrative Officer, DOI in National Insurance Company Ltd, Delhi.) S/o Sh. Sukh Dayal Bhutani, R/o AGI, Shiva Enclave, Opp. Ordinance Depot, Rohtak Road, Delhi.
...........Convicts Date of Institution : 27.01.2003 Date on which judgment pronounced : 20.11.2012 Date on which order on sentence announced :
7.12.2012 O R D E R O N S E N T E N C E
1. By this order, I shall dispose off the contentions, raised on behalf of the parties, on the point of sentence.
2. In the present case, all the convicts have been convicted for the offence punishable under CBI vs. Rajesh Kohli & Ors. 88 of 112 pages 89 CBI case . No.21/11 section 120B read with sections 420, 467, 468 and 471 IPC. Convicts Rajesh Kumar Kohli and Vinod Kumar Bhutani have been convicted, in addition, for the offence punishable under section 13(2) read with section 13 (1) (d) of the Prevention of Corruption Act, 1988. Convict Devender Kumar Garg has been convicted, in addition, for the offences punishable under sections 420, 468 and 471 IPC. Convicts Arvind Kumar Sharma and K. V. Juneja, both, have been convicted, in addition, for the offences punishable under section 468 read with section 471 IPC.
3. It has been strongly contended on behalf of the State by the Ld. Sr. PP for the CBI that this is a corruption case, in which, the convicts have been convicted, as they were operating as an organised racket and have caused illegal huge pecuniary loss to the National Insurance Company Ltd., CBI vs. Rajesh Kohli & Ors. 89 of 112 pages 90 CBI case . No.21/11 Govt. of India Undertaking. That they have cheated the said company to the tune of Rs.
2,77,306/. They have, therefore, caused loss to the public exchequer of the said amount. It has further been stated that the amount, to the extent to which the Government has been cheated, was not a small amount as the case pertains to the period much prior to the year 2000, when it was quite a sizable and fat amount.
4. The State has further contended that the maximum prescribed substantive punishment with fine be handed over to all the convicts, so that enough and clear message goes to one and all and especially to the potential offenders, who are in the waiting to commit such like frauds so that the punishment act as a deterrence and the intent of the legislature is fulfilled.
5. Convict Rajesh Kumar Kohli, has prayed that a CBI vs. Rajesh Kohli & Ors. 90 of 112 pages 91 CBI case . No.21/11 lenient view be taken on the ground that the present case dates back to the year 2000. That he has faced a trial for all these years. That he had been regularly attending the Court. That he has an old mother and wife to support. That he had, of late, taken to practice law for quite sometime and that no useful purpose will be served by keeping him away from the society, in incarceration. He has sought probation as well.
6. On behalf of the convict Devender Kumar Garg, it has been stated that he is 62 years of age and is suffering from some diseases also. That his son is likely to be married in December this year. He has prayed for a lenient view.
7. Convict Arvind Kumar Sharma has prayed for a lenient view on the grounds that he is the sole earning member in his family and there is no one else to look after them. That the convict has CBI vs. Rajesh Kohli & Ors. 91 of 112 pages 92 CBI case . No.21/11 faced the trial for a couple of years. That he has already stopped the business which had landed him in this case.
8. Convict K. V. Juneja too prayed for a lenient view stating that he is 62 years of age and he is afflicted with various ailments like diabetes and low blood pressure. That his role was limited, in the present case.
9. Convict V. K. Bhutani contended that till the date of conviction, he has been working in the same Department and that no departmental action was initiated against him for the offences committed in this case and that he is the only earning member in his family.
10. All the convicts have, thus, prayed for taking a lenient view. They all have further prayed for release on probation.
CBI vs. Rajesh Kohli & Ors. 92 of 112 pages 93 CBI case . No.21/11
11. The contentions, raised by the the convicts, have met stiff and very strong opposition on behalf of the State. It has been urged that convict Rajesh Kumar Kohli, the then public servant, is a convict before this Court, in as many as six different cases as he had illegally and dishonestly awarded false and fraudulent insurance claims exceeding Rs.15 lakhs that too in the year 19981999, when it was quite a big sum. It has, further, been stated on behalf of the State that being a public servant at the relevant time, convict Rajesh Kumar Kohli acted corruptly with full vigour, in false claims, one after the other. It has, therefore, been urged that this convict is a habitual offender and deserves maximum punishment.
12. Similarly, it is stated that convict Vinod Kumar Bhutani is held guilty in more than one case. He too acted in pursuance to the criminal conspiracy CBI vs. Rajesh Kohli & Ors. 93 of 112 pages 94 CBI case . No.21/11 and as a public servant, dishonestly processed and recommended false, forged and fabricated insurance claims in three cases and caused illegal pecuniary gains to the other convicts.
13. Regarding the convict Devender Kumar Garg, it is stated that he was the beneficiary of the fraudulent claim. That he pocketed the claim money, in this case, to which he was not legally entitled to. He has successfully cheated the National Insurance Company Ltd. alongwith other convicts. That he is not entitled to any mercy or compassion.
14. Regarding the convicts Arvind Kumar Sharma and K. V. Juneja, it is stated that in pursuance to the systematic and wellplanned conspiracy, they forged reports/documents and acted in connivance with other convicts in this case. CBI vs. Rajesh Kohli & Ors. 94 of 112 pages 95 CBI case . No.21/11
15. It is further urged on behalf of the State that most of the pleas taken by the convicts are routine and stock pleas and in any case, in the case under the Prevention of Corruption Act, these pleas taken are not considered as mitigating circumstances. It has, therefore, been prayed that exemplary punishment be awarded to the convicts herein.
16. On behalf of the CBI, following case law have been cited:
(i) State V A Parthiban, AIR 2007 Supreme Court 51,
(ii) State V Ratan Lal Arora, AIR 2004 Supreme Court 2364 &
(iii) Ram Narain Poply Vs. CBI, AIR 2003 Supreme Court 2748
(iv) State of J & K Vs. Vinay Nanda, AIR 2001 SC 611.
(v) State Vs. Rattan Lal Arora (2004) 4 SCC 590.
17. On behalf of the convicts, following case law have been cited:
(i) State of UP V Sanjay Kumar, (2012) 8 Supreme Court Cases 537,
(ii) Kamaldin & Ors V. CBI, Crl. M.C. 1401/2010,(High Court of Delhi) CBI vs. Rajesh Kohli & Ors. 95 of 112 pages 96 CBI case . No.21/11
(iii) State of J & K Vs. Vinay Nanda, Manu/SC/0028/2001
18. At the very outset, it is observed that there is no quarrel over the settled propositions of law discussed in the aforesaid case law, cited by the parties.
19. The Hon'ble Apex Court in the case of State of Rajasthan Vs. Vinod Kumar, decided on, 18th May, 2012 (Criminal Appeal No. 1887) reiterated the law laid down in State of J&K Vs. Vinay Nanda, AIR 2001 SC P 611, and observed that superannuation of the convict and the pendency of criminal trial for over a period of time cannot be treated a special reason to reduce the sentence.
20. In the same appeal quoting 'M B Joshi Vs. State of Maharashtra, AIR 2001 SC 147' the Hon'ble Apex Court observed that:
"It is the defect of the system that CBI vs. Rajesh Kohli & Ors. 96 of 112 pages 97 CBI case . No.21/11 longevity of the cases tried under the
Prevention of Corruption Act is too lengthy. If that is regarded as sufficient for reducing the sentence mandated by the Parliament legislative exercise would stand defeated."
21. It was observed by the Hon'ble Supreme Court in the case reported as State of J & K Vs. Vinay Nanda, AIR 2001 SC P 611, that :
"Corruption at any level, by any person, of any magnitude, is condemnable, which cannot be ignored by the Judicial Courts, when proved. No leniency is required to be shown in proved cases under the Prevention of Corruption Act which itself treats the offences under it of a special nature to be treated differently than the general penal offences. The convicts of the offences under the Act are to be dealt with heavy hand and deterrant rod. No populous or sympathetic approach is needed in such cases."
CBI vs. Rajesh Kohli & Ors. 97 of 112 pages 98 CBI case . No.21/11
22. It was further observed by the Hon'ble Supreme Court in the aforesaid case that :
"Accused facing trial since long; amount allegedly misappropriated already been deposited; undergone departmental punishment; only bread earner in family; wife and three children's dependence on him are the circumstance which do not constitute 'special reasons'."
23. It was observed by the Hon'ble High Court in the cases reported as Jai Bhagwan Vs. State (NCT of Delhi), 2008 150 DLT 46 (Delhi) and Ravinder Kumar Arora Vs. CBI Manu/DE/8816/2007 (Delhi) , that :
"It is a normal thing that 'trial' of the person is considered a period of 'agony' undergone by him. But we tend to forget the agony of the society and the complainant who dared lodge the complaint. The entire purpose of the legislature of CBI vs. Rajesh Kohli & Ors. 98 of 112 pages 99 CBI case . No.21/11 sentencing the offenders stands defeated and that is the one reason that wages of corruption are considered more attractive in this country. The person caught is not always a firsttimer corrupt. He may have been indulging into corrupt activities / practices for a long number of years. It is to his advantage that the trial is prolonged. He spends a fraction of amount, earned by corrupt practices on litigation and professionals to see that ultimately he makes Criminal Justice System a laughing stock. In this process, the entire legislative purpose of punishing a corrupt stands defeated.
24. It was held by the Hon'ble Supreme Court in the case reported as State of M. P. Vs. Shambhu Dayal Nagar, (2006) 8 SCC P 693, that :
"Corruption by public servant has become gigantic problem. It has spread everywhere. No facet of CBI vs. Rajesh Kohli & Ors. 99 of 112 pages 100 CBI case . No.21/11 public activity has been left unaffected by the stink of corruption. Large scale corruption retards the nation building activities and everyone has to suffer on that count."
25. It was observed by the Hon'ble High Court in the case reported as AIR 1961, Mysore P 49, that:
"Infliction of a lenient sentence will defeat the purpose of the P. C. Act."
26. It was observed by the Hon'ble Apex Court in the case reported as State of T. N Vs. Kaliaperumal, (2005) 12 SCC 473 and State Vs. Ratan Lal Arora, (2004) 4 SCC 590 that :
"Section 18 of the Probation of Offenders Act specifically bars the offence under PC Act from the purview of the Act."
27. The convicts, therefore, cannot be enlarged on probation in this case relating to serious CBI vs. Rajesh Kohli & Ors. 100 of 112 pages 101 CBI case . No.21/11 offences.
28. It was observed by the Hon'ble Supreme Court in the case reported as State of M. P. Vs. Ram Singh, AIR 2000 SC 870, that:
"Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to maliganise the polity of the country leading to disastrous consequences.
It is termed as plague which is not
only contagious but if not
controlled spreads like a fire in a
jungle. Its virus is compared with
HIV leading to AIDS being
incurable. The sociopolitical
system exposed to such a dreaded
communicable disease is likely to
crumble under its own weight.
Corruption is 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."
CBI vs. Rajesh Kohli & Ors. 101 of 112 pages 102 CBI case . No.21/11
29. Further, it was observed by the Hon'ble Supreme Court in the case law reported as Ankush Maruti Shinde Vs State of Maharashtra, AIR 2009 SC 2609 that:
" The social impact of the crime e.g. where it relates to offences against women, decoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest cannot be lost sight of and per se require exemplary treatment. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure CBI vs. Rajesh Kohli & Ors. 102 of 112 pages 103 CBI case . No.21/11 under such serious threats."
30. It was held by Hon'ble Supreme Court in the case reported as Mohd. A Hussain Vs. Asstt. Collector, Custom (Prevention) Ahmedabad, AIR 1998 SC 2143, that :
"If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different. Sentencing judge should try to ensure that the totality of the sentences is correct in the light of all the circumstances of the case."
"In arriving at an appropriate sentence, the court must consider, and some times reject, many factors. The court must 'recognise, CBI vs. Rajesh Kohli & Ors. 103 of 112 pages 104 CBI case . No.21/11 learn to control and exclude' many diverse data. It is a balancing act and tortuous process to ensure reasoned sentence."
31. It was further held by Hon'ble Supreme Court in the case reported as A. B. Bhaskara Rao vs. Inspector of Police, CBI, Vishakapatnam, 2011(4) RCR (Criminal) 290 (SC) that :
"in the case of corruption by public servant, long delay in disposal, quantum of amount of bribe and that the delinquent lost his job due to conviction etc., are not to be taken as mitigating circumstances for reduction of the sentence".
32. In the case of Siddarama and Ors. Vs. State of Karnataka, 2006 IV AD (Cri.) (SC) 78, it was held that:
"undue sympathy to impose inadequate sentence would do more harm to the justice system to CBI vs. Rajesh Kohli & Ors. 104 of 112 pages 105 CBI case . No.21/11 undermine the public confidence in the efficacy of law and society can no longer endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."
33. It was further held in the case law reported as Kishan Dayal vs. State, 1958 Raj LW 596 that:
" A corrupt official is a menace to the society and far from helping in the proper functioning of the Government and implementing of the laws, brings the Government and the society at large into disrepute. It is through the agency of the public servants that the policy of the Legislature as well as of the Government is implemented. It is through the public servants that crimes are detected and offenders are brought to book. It is through strictly honest and incorruptible CBI vs. Rajesh Kohli & Ors. 105 of 112 pages 106 CBI case . No.21/11 public servants that the welfare of the society can be ensured. If such public servants are open to corruption and coerce the public into paying them illegal gratification, the whole structure of the society would be upset and the policy of the Government and of the Legislature, howsoever, beneficial it may be, would gravely suffer. A public servant, therefore, once he is found to be guilty of accepting or obtaining illegal gratification, deserves no soft corner or indulgence from the Courts of Law."
34. It was held in the case reported as Madhukar Bhaskarrao Joshi vs. State of Maharashtra, 2001 Cr. LJ 175(SC): that:
"When corruption was sought to be eliminated from the polity all possible stringent measures are to be adopted within the bounds of law.
One such measure is to provide CBI vs. Rajesh Kohli & Ors. 106 of 112 pages 107 CBI case . No.21/11 condign punishment. Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was precisely the reason why the sentence was fixed as seven years and directed that even if the said period of imprisonment need not be given, the sentence shall not be less than the imprisonment for one year. Such a legislative insistence is reflection of Parliament's resolve to meet corruption cases with very strong hand to give signals of deterrence as the most pivotal feature of sentencing of corrupt public servants. All public servants have to face very serious consequences. If on the other hand any public servant is given the impression that if he succeeds in protracting the CBI vs. Rajesh Kohli & Ors. 107 of 112 pages 108 CBI case . No.21/11 proceedings that would help him to have the advantage of getting a very light sentence even if the case ends in conviction, its fallout would afford incentive to public servants who were susceptible to corruption to indulge in such nefarious practices with immunity. Increasing the fine after reducing the imprisonment to a nominal period can also defeat the purpose as the corrupt public servants could easily raise the fine amount through the same means."
35. I have thoroughly and carefully considered the rival contentions. I have also examined the asserted mitigating and aggravating circumstances, pointed out by the parties. I am of the considered opinion that considering all the aspects of the matter, the following sentence shall be appropriate to meet the ends of justice :
(i) All the five convicts herein are awarded CBI vs. Rajesh Kohli & Ors. 108 of 112 pages 109 CBI case . No.21/11 sentence of three years rigorous imprisonment and a fine of Rs.5000/, in default, one month simple imprisonment, each, for the offence punishable under section 120B IPC.
(ii) Convict Devender Kumar Garg, who fraudulently cheated the National Insurance Company Ltd., to the tune of Rs.2,77,306/, is sentenced to four years rigorous imprisonment besides a fine of Rs.3 lakhs, in default, nine months simple imprisonment for the offence punishable under Section 420 IPC. For the offence punishable under section 468 & 471 IPC, convict Devender Kumar Garg shall suffer sentence of rigorous imprisonment for three years and six months and a fine of Rs.10,000/, in default, two months simple imprisonment, for each offence.
(iii) Convicts Arvind Kumar Sharma and K. V. CBI vs. Rajesh Kohli & Ors. 109 of 112 pages 110 CBI case . No.21/11 Juneja are awarded sentence of rigorous imprisonment for three years and six months and a fine of Rs.10,000/, each, in default, two months simple imprisonment for the offence punishable under section 468 read with section 471 IPC.
(iv) Convicts Rajesh Kumar Kohli and Vinod Kumar Bhutani, who are convicts in several cases, are hereby awarded a sentence of four years rigorous imprisonment and a fine of Rs. 25,000/, in default, three month simple imprisonment, each, for the offence punishable under section 13 (2) read with section 13 (1) (d) of the the Prevention of Corruption Act, 1988.
36. From out of the fine imposed upon convict Devender Kumar Garg, if realised, a sum of Rs. Three Lakhs be paid to the complainant NIC Ltd as compensation.
CBI vs. Rajesh Kohli & Ors. 110 of 112 pages 111 CBI case . No.21/11
37. All the aforesaid sentences shall run concurrently.
38. Benefit of section 428 Cr.P.C. is extended to the convicts.
39. A copy of the judgment and order on sentence be given to all the convicts, free of cost, forthwith.
40. File be consigned to record room. Announced in the open court ( N. K. Kaushik ) on 7th December, 2012 Special Judge (PC Act) CBI Dwarka Courts CBI vs. Rajesh Kohli & Ors. 111 of 112 pages 112 CBI case . No.21/11 CBI vs. Rajesh Kohli & Ors. 112 of 112 pages