Delhi District Court
Cbi vs 1. Sh. Manoj Gambhir, on 31 January, 2011
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IN THE COURT OF SH. V.K. MAHEWARI
SPECIAL JUDGE:DELHI
Complaint Case No.37/2001
CBI Vs 1. Sh. Manoj Gambhir,
S/O Sh. Shiv Dayal,
H.No. 170, Teliwara, Shahdara,
Delhi, Asst. Oriental Insurance Company,
Antriksh Bhawan, 12th Floor, New Delhi.
2. Sh. Desh Deepak,
S/O Sh. Hans Raj,
Assistant Oriental Insurance Co.
Antriksh Bhawan, 12th Floor,
New Delhi.
237D, Pocket A, PhaseII, Mayur Vihar,
Delhi42.
Permanent: Parjapati Mohalla,
Devli Gaon, Ambedkar Nagar Depot,
New Delhi.
3. Sh. Bharat Kumar,
S/O Late Sh. Kamal Chananna,
Present164, Teliwar Shahdara.
4. Sh. Jagdish Chander Updhayay
R/O Village: Khount,
P.O. Dhamas, DisttAlmora,
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Uttar Pradesh
5. Sh. Ramesh Updhayay,
S/O Late Sh. P.C. Uphayaya,
Present: 767, SectorV,
Pushp Vihar, Delhi &
Machali Bazaar Bhure Cycle Store,
Naziababad, ( Proclaimed offender )
Permanent: Vill. Khayadi, Distt. Almora,
Uttar Pradesh.
6. Sh. Devender Updhayaya,
S/O Late Sh. P.C. Updhayaya,
Village Khatiyadi, Distt.Almora,
Uttar Pradesh.
7. Sh. Mohan Gambhir,
S/O Sh. Shiv Dayal,
H.No. 170, Teliwara Shahdara.
R. C No. 55(A)/99/CBI/ACB/ New Delhi.
Under Section 120B, 420, 467, 471, 477 IPC and Section 12(2)
r/w 13(1)(d) of P.C. Act, 1988
Date of Institution of case: 4.6.2001
Arguments concluded on: 28.1.2011
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Date of Order: 31.01.2011.
Judgment
1 According to prosecution this case was registered on the basis
of written complaint of Sh. D.C. Gupta, Manager Vigilance of Oriental
Insurance Company alleging therein that during the routine check and
reconciliation of pending claims of BHEL & BEL by the Divisional Office
No.16 of Oriental Insurance Company Ltd. at K G Marg, Antriksh Bhavan,
12th Floor, New Delhi, some of the claims of public sector undertaking which
were passed by the Oriental Insurance Company has not been actually
received by them although in the company's account there were duly debited.
The matter was referred to Vigilance Cell for further enquiry and Vigilance
Enquiry revealed that Sh. Manoj Gambhir, Assistant (T) who was dealing
with Marine and Fire Claim of public sector clients had prepared the false
claims scrutiny sheets and claim vouchers and got 7 cheques total for Rs.
9,18,210/ with the connivance of other Assistant Sh. Desh Deepak. Sh.
Manoj Gambhir used to make double payments on claims filed. Normally
the second payment was made after a gap of one or two months by removing
earlier scrutiny sheet and voucher copy and preparing fresh scrutiny sheet
and vouchers. After getting the cheque signed he used to alter the name of
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payee on the cheque. Further enquiries revealed that the aforesaid claims
cheques were encashed by opening fictitious accounts with different banks.
Sh. Manoj Gambhir and Sh. Desh Deepak opened and operated account at
PNB, Khanpur, Delhi for M/s Bharat Electronics, Vijaya Bank, Chandni
Chowk for M/s Bharat Electronics Pvt. Ltd. and State Bank of Patiala,
Daryaganj, Delhi for M/s Bhela Chand & Associates. Sh. Manoj Gambhir
has also made a confessional statement during the course of vigilance
enquiry and has also repaid he whole amount to the company. This fraud has
been committed in connivance with some private persons, bank officials as
well as some unknown officials of the company.
2 Oriental Insurance Company Ltd. at K G Marg, Antriksh
Bhavan, 12th Floor, New Delhi generally deals with Insurance of Govt.
undertakings and damages/ claims pertaining to Marine, fire, motor theft etc.
The above referred fraud worth Rs. 9,18,210/ in Division Office16 was
committed during 1996 in the Marine Claims department. During the
relevant period one Sh. Manoj Gambhir was working as Assistant in Marine
Claims department. Marine Insurance is a type of insurance by which
company claims the insurance in case of theft/ breakage of the material
during the transportation. The claim procedure is very simple. First the
insured company has to inform and send bilty/voucher vide which the
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material is transported and other concerned documents alongwith the claim
letter. Such claim applications are registered and a file is opened in the
marine section of the Oriental Insurance Company. The registered surveyor
are deputed to assess the loss/theft. on the report of surveyor, marine claim
scrutiny form is prepared. If the amount is between Rs. one lac to Rs. three
lac, it has to be passed by two officers. Accordingly payment voucher is
prepared and passed by the concerned officers. Thereafter the payment
voucher is sent to the Account Section for preparation of cheque, further it is
given to the Dealing Assistant for onward delivery to the concerned party.
3 During the period 1994 M/s Bharat Electronics Pvt. Ltd. filed
one marine claim (loss/damage caused during transportation ) worth of Rs.
83,054/. The loss was intimated to Oriental Insurance Company. D.O.16
on 31.1.94. Same was processed in the Divisional Office and passed in
August 1995. Later the claimant co. withdrew its claim. At this stage Sh.
Manoj Gambhir, the dealing Assistant of Marine Claims department was
struck with an idea and decided to encash this claim himself. He opened
another file after removing all the claim documents from the original claim
file and initiated another Marine Claims scrutiny note for approval. He
deducted 25% of the total claim of Rs.83,054/ and prepared voucherfor Rs.
62,291/ and got it passed. Sh. Manoj Gambhir made Ms. Swati Agroha, a
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trainee, to write the payment voucher. After putting his initials got it
approved by the then ADM Sh. Prakash Wadhwa, now retired and sent the
same to accounts section for preparation of cheque. After obtaining the
cheque, the scrutiny note of the second claim seems to have been destroyed
by Sh. Manoj Gambhir as it could not be traced in the file. The scrutiny note
for Rs.83,054/ was found in the IInd file.
4 Sh. Desh Deepak, a colleague and good friend of Manoj Gambhir
working in the Accounts Section, in pursuance of criminal conspiracy with
Sh. Manoj Gambhir prepared the cheque in favour of Bharat Electronics
instead of Bharat Electronics Ltd. After it was signed by Sh. Partha Kanji
Lal, A.D.M, it was handed over to Sh. Manoj Gambhir. To encash the said
cheque Manoj and Desh Deepak contacted one Ramesh Chander Upadhyay
whose brother Devender Prashad Upadhyay was having a current A/C No.
1924 in PNB Khanpur maintained in the name of Manya Finisher.
5 Investigation confirms that the account in the name of the
fictitious firm M/s Bharat Electronics at Punjab National Bank, Khanpur,
Delhi was opened by Jagdish Chander Upadhyay, a private person. The
Cheque No. 521685 for Rs. 62,291/ dt. 13.02.96 originally issued in favour
of M/s Bharat Electronics was deposited in the said account of M/s Bharat
Electronics at PNB, Khanpur. The deposit slip was filed by Jagdish Chander
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Upadhyay. Subsequently out of the said account, Rs. 62,000/ was
withdrawn by self cheque in March, 1996.
6 On the second instance, BHEL vide No. 96/5019 filed a claim on
2.3.95. The same was processed and a sum of Rs. 1,00,575/ was sanctioned
as claim. Cheque for the said claim was delivered to the concerned party.
After some time, Manoj Gambhir took out this processed claim file, removed
the earlier marine claim scrutiny form and prepared another marine claim
Scrutiny form on 04.09.96 and got it finally passed on 11.09.96 for Rs.
1,01,325/. After getting it passed from Account Section, Manoj Gambhir
prepared the cheque in favour of M/s BHEL and got it signed by the
concerned officer. With malafide intentions of encashing the said cheque,
Manoj Gambhir altered the name of the payee as M/s BHELA CHAND &
ASSOCIATES. To encash the said cheque, they floated a fictitious firm by
name M/s BHELA CHAND & ASSOCIATES with office address at 11B,
Saket, New Delhi . One Bharat Kumar, domestic helper of Manoj Gambhir,
opened the current account on 04.10.96 at State Bank of Patiala, Darya Ganj
as sole proprietor of the said firm. The application for opening this account
and specimen signature card was written by Manoj Gambhir and signed by
Bharat Kumar. One Mahesh, neighbour of Manoj Gambhir, working in the
same branch introduced the account under the impression that Manoj
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Gambhir was starting some business. The above mentioned Cheque for Rs.
1,01,325/ originally issued to M/s BHEL Ltd. was altered into the name of
M/s BHELA CHAND ASSOCIATES and deposited in account No. 7208 of
State Bank of Patiala, Darya Ganj on 7.10.96. On 14.10.96 Rs. 50,000/
was transferred from the said A/C vide cheque No. 651151 to the Account
No. 666 of M.M. Company Ltd. Here M.M. stands for Mamta Mishra and
Mohan Gambhir. Mamta Mishra is wife of the elder brother of Sh. Bhagesh
Mishra and Mohan Gambhir is the elder brother of Manoj Gambhir. This
firm was actually operated by Bhagesh Mishra and Manoj Gambhir.
Bhagesh Mishra is also an Assistant and batchmate of Manoj Gambhir
working at Divisional office 25, Connaught Place Branch of Oriental
Insurance Company. Bhagesh and Manoj being government employee
cannot undertake any other business, they started the firm in the name of
their relatives, Mamta Mishra and Mohan Gambhir, respectively. The
investigation revealed that during the relevant period Mohan Gambhir was
unemployed and Mamta Mishra was a house wife without any independent
source of income. Recovery of many blank signed cheques of account No.
666 from the possession of Manoj Gambhir clearly shows that M.M.
Investment was actually operated by Bhagesh and Manoj Gambhir.
7 At the third instance, Manoj Gambhir obtained another old file of
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Bharat Electronics Ltd. of 1996 which was already passed in June, 1996 and
removed the original marine Claim Scrutiny form and prepared a fresh
marine claim scrutiny form, got it passed for Rs. 1,78,987/ on 27.07.96 by
the senior officer. This scrutiny form could not be traced during
investigation. Old scrutiny photocopy claim form was again placed in the
file. The cheque was to be prepared in favour of Bharat Electronics Ltd. but
Desh Deepak in connivance with Manoj Ghambir wrote the name of the
prayee on the cheque in such a way that some space was left between the
words M/s Bharat Electronics and Ltd., and got it signed by their officer.
Desh Deepak very cleverly inserted word 'Jee' after M/s Bharat and 'Pvt.' in
between Electronics and Ltd. After interpolation it read as ''M/s BharatJee
Electronics Pvt. Ltd.''
8 To encash this cheque Sh. Manoj Gambhir again managed to
open another current account in the name of M/s Bharatjee Electronics Pvt.
Ltd. at Vijaya Bank Chandni Chowk, C/A No. 7032 in the Joint name of
Bharat Chananna actually Bharat Kumar and Mohan Gambhir, brother of
Manoj Gambhir, introduced by C/A No. 3381, Veekay Electronics on
27.3.97 with the initial deposit of Rs. 5000/. The application for this C/A
No. 3381 was filed by Manoj Gambhir. The altered cheque of Rs.
1,78,987/ was deposited on 4.4.97 in deposit of cheque was only due to the
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time taken in opening the account in the name of Bharatjee Electronic Pvt.
Ltd. Manoj Ghambir got a Memorandum & Article of Association prepared
through a Chartered Accountant at Krishna Nagar.
9 The amount deposited in A/C No. 7032 was later withdrawn
through self cheque signed by Bharat Chanana on 9.4.97 for Rs. 75,000/ on
11.04.97 for Rs. 30,000/ on 20.4.97 for Rs. 15,000/ on 28.4.97 for Rs.
40,000/ and subsequent withdrawals thereafter. The withdrawal cheques
were written by either Manoj Ghambir or Bharat Kumar.
10 At the fourth instance, Sh. Manoj Ghambir on 16.05.97 took out
another settled claim file of Bharat Electronic Ltd vide claim No. 95/5/95
dated 28.11.94, for Rs. 72,131/ removed the original Marine claim Scrutiny
form and prepared fresh marine claim scrutiny form and got it pased for Rs.
54,098/ after deducting 25% of the projected claim of 72,131/, in favour of
Bharat Electronics Ltd. Following the procedure adopted earlier, they
altered the cheque and deposited in the A/C of M/s Bharatjee Electronics
Pvt. Ltd. at Vijaya Bank, Chandni Chowk, Delhi. On 27.09.97 Rs. 25,000/
was transferred to account no. 7208 of Bhela Chand & Associates at State
Bank of Patiala Darya Ganj, Delhi, actually operated by Jagdish Chander
Upadhyay in connivance with Desh Deepak and Manoj Gambhir.
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11 Similarly, at the fifth instance, Manoj Gambhir took out another
old processed file and prepared a fresh marine claim and got it passed for Rs,
2,79,678/ on 27.01.98 and prepared the cheque in favour of Bharat
Electronic Ltd. adopting the earlier method, they changed the name of payee
and the cheque was deposited in the account no. 7032 of M/s Bharatjee
Electronics Pvt. Ltd. on 12.03.98. The deposit slip was returned by Bharat
Kumar and he later withdrew the amount through self cheque. The cheques
were either returned by Manoj Gambhir or Bharat Kumar.
12 At the sixth instance, the marine claim scrutiny form was not
available hence it is not clear who actually got it passed in file. But the
payment voucher was prepared by Desh Deepak in favour of Bharat
Electronics Ltd. and got it approved by one of his officer Smt. Manmeet
Kaur . This cheque for Rs. 1,66,292/ was prepared by Desh Deepak in the
name of Bharat Electronics instead of Bharat Electronics Ltd. and deposited
by Manoj Gambhir on 30/12/98 in account no. 2110 at PNB Khanpur. The
deposit slip was also written by Manoj Gambhir. Out of this account , Rs.
1,65,000/ was transferred to MM Investment Co. account no. 666 at Vijay
Bank, Vigyan Vihar Branch,Delhi on 5.1.1999 and at last by adopting same
proceedure Manoj Gambhir also got one more claim passed in favour of
M/s. BHEL for Rs. 75,539/.The cheque was prepared in the name of M/s.
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BHEL by Desh Deepak and got it signed by the concerned officer . He
himself changed M/s BHEL to M/s BHELA CHAND & ASSOCIATES and
handed over the cheque to Manoj Gambhir. This cheque was deposited in
account no.7208 at PNB, Khanpur on 26.03.1999. The amount was
withdrawn from this account through cheques . The file relating to the claim
could not be traced during the investigation.
13 Copies required U/s 207 CrPC supplied to all the accused. My
Ld. Predecessor Sh. Dinesh Dayal, the then Special judge vide his order
dated 27/01/2005 directed to frame charges against accused Manoj Gambir,
Desh Deepak, Bharat Kumar and Mohan Gambhir. Accordingly charges
were framed against all these accused on 08/02/2005. A Charge for the
offence punishable U/S 120B r/w Section 420, 468, 471 and 477A of IPC
and U/S 13 (2) r/w Section 13 (1) (d) of P C Act 1988 has been framed
against all these four accused and charges for the substantive offence
punishable U/S 420, 468, 471 and 477A of IPC and U/S 13 (2) r/w Section
13 (1) (d) of P C Act 1988 has been framed against accused Manoj
Ghambir and Desh Deepak on 8.2.2005. Accused Jagdish Chander
Upadhaya, Ramesh Upadhaya and Devender Upadhaya were declared
proclaimed offender at that time. Later on accused Jagdish Chander
Upadhaya and Devender Upadhaya were apprehended. My Ld. Predecessor
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Sh. B.S. Mathur, the then Special Judge on 23/05/2006 framed charges
against both these accused U/S 120B r/w Sec 420, 467, 471 477A IPC r/w
Sec 13(2) r/w 13 (1) (d) of P C Act 1988. Accused Devender Upadhaya has
challenged the order of framing of charge against him. Hon'ble High Court
vide order dated 17/10/2006 remanded the matter to the Special Judge for re
hearing arguments on the point of framing of charge and for passing of
appropriate order in accordance with law. Accordingly, my Ld. Predecessor,
the then Special Judge Sh. G.P. Mittal vide his order dated 30/10/2007
directed to frame charges against accused Devender Upadhaya and framed
charge against him on 30/10/2007 itself U/S 120B r/w Sec 420, 467, 471
477A IPC r/w Sec 13(2) r/w 13 (1) (d) of P C Act 1988. All the accused
pleaded not guilty to the charges framed against them and claimed trial,
hence this trail
14 In order to prove its case Prosecution has examined following
witnesses. :
PW1 Sh. Mahesh Chand Assistant Manager, State Bank of Patiala
, he has proved account opening form in respect of Bhela Chand &
Associates, Ex PW1/A , specimen signature card Ex PW1/B and affidavit of
Bharat Kumar Ex PW1/C.
PW2 Sh. Nain Singh has proved production cum seizure memo
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Ex. PW2/A.
PW3 Sh. Chaman Lal, Branch Manager PNB, Gurgaon has
proved production cum seizure memo Ex. PW3/A.
PW4 Sh. D. C. Gupta, has proved letter dated 15/18.11.99, Ex.
PW4/A. He has proved confessional statement of accused Manoj Gambhir
Ex. PW4/B. He has also proved production cum seizure memo dated
30.12.99 Ex. PW4/C vide which he handed over files Ex. PW6/D, PW6/E,
PW6/F, Ex. PW6/H, Ex. PW9/J, Ex. PW6/L and Ex. PW6/M.
PW5 Sh. P.S.Bhasin has proved sanction order Ex. PW5/A and
PW5/B for prosecution against accused Manoj Gambhir and Desh Deepak.
PW6 Sh. Ram Pal has proved official note on file Ex. PW6/A to
Ex. PW6/O.
PW7 Ms. Mita Bhattacharjee has proved vouchers and cheques
Ex. PW7/A1, PW7/A2, PW7/B1, PW7/B2, PW7/C1, PW7/C2, PW7/D1,
PW7/D2, PW7/E1 and PW7/F1.
PW8 Sh. Vijay Kumar has proved seizure memo Ex. PW8/A and
documents mark as PW8/A1 to PW8/A38.
PW9 Sh. Shyam Sunder has proved seizure memo in respect of
cheques Mark Ex.PW9/A1 to PW9/A7 vide memo Ex. PW9/A.
PW10 Sh. Gulshan Khera has also proved claim files Ex.
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PW10/A to PW10/A17.
PW11 Dr. Sayeed Ahmed, GEQD, Simla has proved opinion
given by Hari Mohan Saxena and Amar Singh, Ex. PW11/A.
PW12 Inspector A K Malik, IO of this case has proved FIR Ex
PW12/A, specimen writing of accused Manoj Gambhir running in 39 sheets
collectively exhibited PW12/B, 35 sheets of specimen writings and
signatures of accused Desh Deepak collectively exhibited as PW12/C, 15
sheets of specimen writings and signatures of accused Bharat Kumar
collectively exhibited as PW12/D, 05 sheets of specimen writings and
signatures of Mahesh Chandra collectively exhibited as PW12/E, 07 sheets
of specimen writings and signatures of Mohan Gambhir collectively
exhibited as PW12/F. Statement of current account no. 7208 of M/s. Bhela
Chand & Associates Ex. PW 12/G, seizure memo dated 10/07/2000 Ex. PW
12/H, Statement of current account no. 666 in the name of M/s. M.M.
Investment running in 6 sheets collectively exhibited as Ex. PW 12/J,
Memorandum of articles of association relating to Bharat jee Electronics Pvt.
Ltd. Ex. PW 12/K (Collectively ), Statement of current account no. 731 in
the name of Bharajeet Electronics Pvt. Ltd. running in 06 sheets collectively
exhibited as Ex. PW 12/L, Chargesheet running in 04 pages collectively
exhibited as Ex. PW 12/BG. He has given the details of investigation carried
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out by him.
DEFENCE OF ACCUSED AND DEFENCE EVIDENCE.
15 Statement of all the six accused recorded u/s 313 Cr.PC. All the
accused denied the evidence produced by prosecution against them on the
judicial file. They have stated that they are innocent. There is no evidence
against them. They have been falsely implicated in this case. They may be
acquitted.
16 None of the accused has produced any evidence in his defence.
ARGUMENTS OF PROSECUTION.
17 It is argued by Ld. SPP, Sh. Brajesh Shukla that in this case
Manoj Gambhir used to make double payments on claim files, second
payment was normally made after a gap of one or two months by removing
earlier security seats & voucher copy and thereafter prepared fresh security
seat. Accused persons used to alter the name of payee after getting the
cheque signed by authorised signatory. Thereafter, those signed cheques
were fraudulently incashed by dishonestly opening fictitious account with
the different banks. Manoj Gambhir and Desh Deepak opened fictitious
bank account in the name of M/s Bharat Electronic, M/s. Bharatjee
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Electronics and M/s. Bhela Chand & Associates at different banks situated at
Khanpur, Chandini Chowk and Darya Ganj in connivance of their co
accused They also operated the account and withdrawn the money
illegally.
18 During vigilance enquiry Manoj Gambhir made a confessional
statement and re paid the whole amount, which implies the sense that illegal
act fraudulently and dishonestly committed by him with active connivance
of Desh Deepak who prepared the fake cheques. Jagdish Chander Upapadya
had opened fictitious account at PNB, Khanpur and deposited / withdrawn
Rs. 62,291/ by issuing self cheque. Ramesh Upadhaya whose brother
Devender Upadhaya was having current account in the name of Manya
Finisher was contacted by Manoj Gambhir for defrauding the money
obtained through trickery method. Likewise Bharat Kumar, the domestic
helper, of Manoj Gambhir also opened fictitious current account, Mahesh
neighbor of Manoj Gambhir, introduced the fake account of M/s. Bhela
Chand and Associates from which subsequently cheque of Rs. 50,000/ was
transferred to MM company Ltd. They may be convicted.
DEFENCE ARGUMENTS OF ACCUSED MANOJ GAMBHIR.
19 It is argued by ld. Defence counsel that accused Manoj Gambhir
was working as Assistant in OIC. His job was to prepare the documents with
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regard to Marine Insurance claim and to forward the same to his senior
officers. Documents prepared by him were to be checked by his senior
officers prior to passing of claim and preparing of cheques. Preparation of
cheques of the claims was not the part of his duty. Hand writing expert has
not appeared in the witness box. PW 11 could not prove the fact that both
the hand writing experts who had examined the questioned hand writing and
compared the same with the specimen hand writing are unable to give
evidence. His confession was forcibly extorted by his seniors, hence, the
same is inadmissible in evidence against him. He was forced to deposit the
amount, therefore, no adverse inference can be drawn against him. He is
innocent. He may be acquitted.
DEFENCE ARGUMENTS OF ACCUSED DESH DEEPAK.
20 It is argued on behalf of accused Desh Deepak that there are lot
of contradictions in the deposition of the witnesses examined by the
Prosecution. Most of the witnesses has not deposed anything against the
accused . Prosecution has failed to examine the main witness namely Ms.
Manmeet Kaur who was material witness in the present case as per the case
of the prosecution, however, in absence of her deposition, the prosecution
has failed to prove the guilt against the present accused beyond reasonable
doubt.
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21 It is argued that the prosecution has not exhibited the necessary
documents to prove its case against the present accused Desh Deepak. In the
examination of PW6, he has stated that he had just examined the accused
Desh Deepak, however, the substance of the alleged examination of accused
Desh Deepak conducted by the witness has not been explained or written or
exhibited anywhere or proved by the Prosecution, PW6 was not sure
whether he recorded the statement of the present accused or not. The alleged
forwarding letter to the witness giving him authority for inquiring into the
matter has neither been exhibited nor been filed on record, which clearly
indicates the falsity of the Prosecution case. As per the deposition of the
PW6, the case was referred to CBI on the directions/instructions of one Mr.
Chawla, who was the Chief Vigilance Officer, but the prosecution has failed
to even cite Mr. Chawla as a witness, therefore the referring of the case to
CBI is not proved. PW5 has given the sanction order against the accused
Desh Deepak for his prosecution . The sanction was neither proper nor legal
as the sanctioning authority did not give the grounds of satisfaction.
Statement U/S. 161 & report U/S. 173 Cr.PC were not put before the
sanctioning authority and the sanctioning authority had not scrutinized the
same nor did he apply his mind before granting of sanction hence sanction
is bad in law. Departmental proceedings not incorporated in the sanctioning
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order. At the time of granting sanction accused was not given an opportunity
of being heard. PW5 has stated that it was stated that format of sanction
order Ex.PW5/A was prepared by the Personal and Legal Department and
he had suggested modifications in that order. Thus order was not prepared by
the witness, but it was prepared by personal and legal department of the
company. It is stated by the witness that the powers to remove an Assistant
has been delegated to a Manager, but no such authority letter pertaining the
delegation of power has been filed on record or exhibited by the Prosecution,
which clearly shows that the sanction order is bad in law. PW7, has stated
that the documents must have been altered subsequently after signing by her
and Mr. Sethi. This fact could have only been proved by Mr. Seth, had
prosecution cited him as a witness. Prosecution has not given any reason for
not citing Mr. Sethi as witness. In absence of any reasons for the same,
deposition of PW7 cannot be relied upon. Benefit of doubt always goes in
favour of the accused. PW10, has stated that he identifies the initials of
accused Desh Deepak. However, on the other hand, he has stated that he has
no expertise in identifying the handwriting. PW10 has stated that accused
Desh Deepak used to put his signatures on the document prepared by him,
hence, the question of putting initials does not arise. Deposition of PW11
cannot be read as he has not been deputed by the head of the concerned
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department to depose in the Court. No documentary evidence has been
produced as to why PW Amar Singh and Hari Mohan Saxena have not
appeared in the witness box. It is simply stated that the witness Mr. Amar
Singh is suffering from brain hemorrhage and witness Mr. Hari Mohan
Saxena is suffering from mental sickness but no medical documents of the
said persons have been filed on record, hence, the deposition of PW11
cannot be relied upon. No permission from the court was obtained for taking
the specimen writing of the accused persons by the PW12. When the
specimen writing of the accused persons were taken they were in the custody
of PW12/Investigating Officer. PW12 has also not placed the statements
U/S. 161 Cr.PC and other documents before the appropriate authority for
obtaining sanction against accused Desh Deepak. FIR has not been
exhibited by the concerned person, but it has been exhibited by the IO, who
is not the writer of the document.
ARGUMENTS ON BEHALF OF BHARAT KUMAR .
22 It is argued on behalf of accused Bharat Kumar that he is a poor
fellow . His specimen hand writing was taken while he was in police custody
without permission of the Court . Handwriting experts who has compared the
specimen hand writing with the questioned hand writing has not appeared in
the witness box. He has not received any money. He has been made a scrap
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goat being a poor person. There is no legally admissible evidence against
him. He is innocent , he may be acquitted.
DEFENCE ARGUMENTS ON BEHALF OF ACCUSED JAGDISH
CHANDER UPADHAYA AND DEVENDER UPADHAYA.
23 It is argued by Ld. Defence counsel that charge has been framed
against accused Jagdish Chander Upadhaya without hearing him, therefore
charge and all the subsequent proceedings against him are illegal. It is
argued that as per section 239 of Cr.PC opportunity of hearing is mandatory
before framing of charge.
24 It is argued on behalf of both the accused that no specimen hand
writing of both these accused was taken. There is no opinion of their hand
writing on any of the documents. None of the witnesses produced by the
prosecution has named any of the accused about their involvement in the
alleged fraud. There is no legally admissible evidence against them. They are
innocent. They may be acquitted. It is alleged against accused Devender
Upadhaya that he had only introduced the account of Bharat Electronics,
opened by its proprietor Bharat Chandra Joshi, as Proprietor of of M/s.
Manya Finishers. Mere introduction of an account is no offence. Ld. Defence
counsel in support of his arguments placed reliance on "Manoranjan Das Vs.
State of Jharkand "
CC No.37/01 22/66
23
DEFENCE ARGUMENTS ON BEHALF OF ACCUSED MOHAN
GAMBHIR.
25 It is argued on behalf of accused Mohan Gambhir that he had
opened CC account in the name of Bharatjeet Electronics Pvt. Ltd. bearing
no. 7032 alongwith Bharat Chandana in Vijaya Bank, Chandini Chowk.
There is no evidence against him as none of the documents are exhibited by
PW8. All the documents have been marked which are Mark PW8/A1 to
PW8/A33. His alleged specimen hand writing was not taken in presence of
any independent witness. Prosecution has not produced any evidence to
show that he has withdrawn/received even a single Rupee from the above
referred account. It is argued that mere opening of the account in a bank is
no offence. There is no legally evidence against him, hence he may be
acquitted.
26 I have carefully consider all the arguments of both the parties and
have gone through the record.
27 Accused Manoj Ghambir and Desh Deepak the then working as
Assistant in Marine Claim Department of Oriental Insurance Company Ltd
( hereinafter called OIC ) . This fact has not been disputed on behalf of both
these accused . Even this fact has not been disputed during the trial and at the
CC No.37/01 23/66
24
time of addressing of final arguments by their Ld Defence counsels . Thus it
is not in dispute that they are public servant
28 PW5 Sh B S Bhasin stated that in the month of March 2001 he
was working as Manager in OIC . He had accorded sanction for the
prosecution of Manoj Ghambir who was working as Assistant, sanction order
bears his signatures on each page, which is Ex PW5/A. He has also stated
that he had accorded sanction for the prosecution of accused Desh Deepak,
the then working as Assistant in OIC which bears his signatures on each page
which is Ex PW5/B. Manager OIC is competent to remove assistant level
official being the disciplinary authority in respect of them hence he was
competent to remove both the accused from their service. In this cross
examination he has denied the suggestion that he had granted the sanction for
the prosecution of accused in mechanical manner without going through the
documents .
29 It is argued on behalf of both the accused that PW5 Sh B S
Bhasin was not the appointing authority of an Assistant hence he is not
competent to accord sanction for the prosecution of accused who were
working as Assistant. In his cross examination PW5 had admitted that
sanction was not drafted by him but a draft sanction order was brought to
him by his legal department. He had accorded sanction without application
CC No.37/01 24/66
25
of his mind, in a mechanical manner without going through the documents
therefore sanction for the prosecution of both accused Ex PW5/A and PW5/B
are bad. He has admitted in his cross examination that power to remove an
assistant has been delegated to the Manager but he has not produced any
proof of such powers delegated to him.
30 In his cross examination PW 5 has stated that format of sanction
order was prepared by personal and legal department . He had signed the
same after going through it and making necessary modification which proves
that he has granted the sanction for the prosecution of both the accused in
question after due application of his mind. Relevant portion of his statement
in this regard is as under:
" Format of Sanction Order Ex PW5/A was prepared by our
Personal and Legal Department. I had, after suggesting modification and
going through the format, signed the same."
31 PW5 specifically deposed on oath that powers to remove an
Assistant has been delegated to a Manager while the appointing powers were
with the top management. This witness has been cross examined on behalf of
both the accused in length. Not even a suggestion has been given to this
witness that powers to remove an assistant has not been delegated to him
thus there is no reason to disbelieve his statement that powers to remove an
CC No.37/01 25/66
26
Assistant were not delegated to him. According to Section 19( c) of P C Act
1988 authority competent to remove a person from his post is competent to
grant sanction for his prosecution. Therefore PW5 was competent to accord
sanction for the prosecution of both these accused.
32 Our Hon'ble Supreme Court in this regard in State of Tamil Nadu
Vs. Damodaran, 1993 Supreme Court Cases (Crl) 272 has held as follows:
"Prevention of Corruption Act, 147 - Ss. 5 (1) (e) and 5 (2) read
with S. 161, IPC - Non application of mind and grant of sanction
mechanically by sanctioning authority - Basis of acquittal by High Court -
High Court deeply influenced in its decision by the fact that a model
sanction order was enclosed with the record sent to the sanctioning
authority - Held, acquittal not justified - There was no infirmity in the
order granting sanction - Criminal Procedure Code, 1973 S. 197".
33 Hon'ble Supreme Court in Indu Bhushan Chatterjee vs. State of
West Bengal, AIR 1958 SC page 148 has held as follows :
" In his evidence in Court the Sanctioning Authority stated
that the sanction was prepared by the police and put before him by the
personnel branch of his office and that before according sanction we
went through all the relevant papers put before him. The sanction
CC No.37/01 26/66
27
granted U/S 6 was perfectly valid. The statement of the sanctioning
authority did not prove that he merely put his signatures on the readymade
sanction presented by the police without applying his mind to the facts of the
case. It was not for him to judge the truth of the allegations made against the
accused by calling for the record of the connected claim cases or other
records in connection with the matter from his office . The paper which were
placed before him apparently gave him the necessary material upon which he
decided that it was necessary in the hands of justice to accord his sanction."
34 Hon'ble Supreme Court has held that where the sanction order
itself is a speaking order in such circumstances it is not necessary to prove it
by leading evidence that sanctioning authority has applied his due mind.
Reliance is placed on C S Krishnamurthy Vs. State of Karnataka 2005 IV
AD (S.C.) 141 wherein in para No.9 it is observed as follows:
"Therefore, the ratio is sanction order should speak for itself and
in case the facts do not so appear, it should be proved by leading evidence
that all the particulars were placed before the sanctioning authority for due
application of mind. In case the sanction speaks for itself then the satisfaction
of the sanctioning authority is apparent by reading the order. In the present
case, the sanction order speaks for itself that the incumbent has to account
CC No.37/01 27/66
28
for the assets disproportionate to his known source of income. That is
contained in the sanction order itself. More so, as pointed out, the
sanctioning authority has come in the witness box as witness No.40 and has
deposed about his application of mind and after going through the reports of
the Superintendent of Police, CBI and after discussing the matter with his
legal department, he accorded sanction. It is not a case that the sanction is
lacking in the present case. The view taken by the Additional Sessions Judge
is not correct and the view taken by learned Single Judge of the High Court
is justified."
35 In this regard, Hon'ble Supreme Court in Superintendent of police
(CBI) Vs. Deepak Chaudhary - 1995 SCC (Crl.) 1095 has held as follows:
''We find force in the contention. The grant of sanction is only an
administrative function, though it is true that the accused may be saddled
with the liability to be prosecuted in a court of law. What is material at that
time is that the necessary facts collected during investigation constituting the
offence have to be placed before the sanctioning authority and it has to
consider the material. Primafacie, the authority is required to reach the
satisfaction that the relevant facts would constitute the offence and then
either grant or refused to grant sanction. The grant of sanction, therefore,
CC No.37/01 28/66
29
being administrative act the need to prove an opportunity of hearing to the
accused before according sanction does not arise. The High Court, therefore,
was clearly in error in holding that the order of sanction is vitiated by
violation of the principles of natural justice.''
36 There is no provision of law for providing hearing to the accused
by the competent authority before according sanction for his prosecution. I
have carefully gone through the sanction order Ex PW5/A and B each
running in six sheets each, these are detailed order having all the material
particulars of this case. A bare perusal of these orders reflects that
sanctioning authority has passed these order after due application of his
mind. In view of above discussion, this Court is of opinion that prosecution
has proved valid sanctions for the prosecution of both these accused in this
case.
37 Questioned writing was compared with the specimen writing of
accused by GEQD Hari Mohan Saxena and Amar Singh. They have not
appeared in the witness box. PW 11 Dr Sayeed Ahmed GEQD has appeared
in the witness box and stated that Mr Hari Mohan Saxena after his retirement
is suffering from mental sickness and Mr Amar Singh after his retirement is
suffering from brain hammerage . They are not in a position to come in the
CC No.37/01 29/66
30
Court and to depose in this case. He has stated that both the officers were
well known to him since 1990 . Both were having good reputation about
their work . He has proved the hand writing report which is Ex PW11/A by
identifying their signatures and hand writings as he has seen them writing
and signing . In his cross examination he has stated that he is not in
possession of any medical record with regard to suffering of brain
hammerage by Mr Amar Singh, however he has produced a letter Ex
PW11/D1 signed by Dr B A Vaid, GEQD in this regard . This letter was
taken on record on the request of ld Defence counsel in the cross
examination of PW1 on behalf of accused. I have gone through this letter
wherein both these facts have been mentioned. There is no reason to
disbelieve this official letter dated 25.5.2009 addressed to SP CBI, ACB, N
Delhi . In these circumstances, this Court is of opinion that prosecution has
proved this fact on record that both these GEQD who had compared the
questioned handwriting and signatures of accused with their specimen hand
writing and signatures are unable to deposed in the Court on account of
medical reasons.
38 It is argued on behalf of accused that the specimen hand writing
was taken by the IO during the investigation when they were in custody
forcibly without taking permission from any court, hence the same cannot be
CC No.37/01 30/66
31
relied upon. Inspector Anil Malik IO of this case has appeared in the witness
box as PW 12. He has specifically stated in his examination in chief that all
the accused have given their specimen hand writing and signatures
voluntarily. He has specifically denied that specimen hand writing of
accused was taken while they were in custody. Relevant portion of his
statement is as under:
"Specimen signature/hand writing of accused were not taken
while they were is custody".
39 However, he has admitted that he had taken specimen signatures
and hand writing of accused without permission of any court. A constitution
Bench of Eleven Judges of Hon'bel Supreme Court in case titled "State of
Bombay Vs. kathi Kalu Oghad & Ors" 1961 Supreme Court Reporters held
as follows:
"Testimonial compulsion - obtaining specimen writing and
thumb impression from accusedStatement of accused in police custody
used in evidence if contravene Constitutional guarantee Under article
20(2).
Held, that there was no infringement of article 20(3) of the
Constitutional in compelling of accused person to give his specimen
hand writing or signatures or impression of his thumb finger, palm or
CC No.37/01 31/66
32
foot to the investigating officer or under order of a Court for the
purpose of comparison."
40 In view of above discussion there is no merit in this argument of
Ld. Defence counsel.
41 Sh. D.C. Gupta, complainant has appeared in the witness box as
PW4. He had conducted departmental enquiry of this case and investigated
the matter on the instruction of Regional Office. Relevant portion of his
statement is as under:
"Regional office had referred the matter to the vigilance
department i.e. of my department. I referred the matter to my head office
about this incident. Head office had authorised me to investigate the matter
and to submit the report to the head office. The matter was investigated by
me in the basis of documents including claim file and vouchers. During the
course of investigation it had come to my notice that after getting the cheque
signed from concerned officers the name on the cheque were altered in such
a matter that the original name was also there and it was modified to another
name like if the original cheque was in the prepared in the name of BHEL
leaving the further space blank and after getting it signed the cheque was
again modified in the same ink as Bhela Chand and Associates. Thereafter
the cheque was deposited in the account of Bhela Chand and Associates and
CC No.37/01 32/66
33
amount was withdrawn by the propreitor of the alleged concerned. There
were two such modified cheques pertaining to BHEL and five pertaining to
BEL as detailed in my complaint Ex.PW4/A. The total amount involved was
Rs. 9,18,210/. During the investigation Mr. Manoj Gambhir had made a
confessional statement in writing and he had repaid the entire amount to the
company. The entire amount was deposited with the company on 11/10/99 as
per Divisional Office 16th Receipt No. 1577 dt. 11/10/99. Photo copy of
which is mark X. As the matter was involving banks where the accounts
were opened, hence, investigation with regard to the bank was beyond my
jurisdiction, hence the matter was referred to the Head Office by me and on
their advice and authorisation I made this complaint Ex.PW4/A to CBI so
that entire episode can be investigated. I also examined Manoj Gambhir and
Desh Deepak accused. Both are present in court today and I identify them
(Witness has correctly identified both the accused). Confession of accused
Manoj Gambhir (D94) who had written and signed it before me
voluntarily is Ex. PW4/B. I can identify his handwriting and signatures
as he had written and signed before me."
42 PW6 has also proved the handwriting and signatures of Accused
Manoj Gambhir on various documents prepared by him. Relevant portion of
his statement is as under:
CC No.37/01 33/66
34
" I can identify the signatures of Manoj at point A1 in note Ex
PW 6/A. Same signatures are of Manoj Gambhir accused. I had seen him
signing in the office. I also identify signatures of accused Manoj Gambhir
at point A2 and A3 on notes ExPW6/B and Ex PW6/C. I identify file No.
96/5017. It is the file of Divisional office No.16 and the same is used to be
kept by me. It contains page 1 to 11. The file is ExPW6/D. File No.
21/95/5195 is also file of DO 16 and used to be kept in the record room. The
same contains page 1 to 82. The same is ExPW6/E. File No. 95/5196, page
1 to 7 is also file of D O No. 16. The same is Ex PW6/F. I identify
signatures of accused Manoj Gambhir at point A4 on the note Ex PW6/G.
File No. 21/97/5132 containing page 1 to 58 is file of D O No.16 which I
identify. The same is Ex PW6/H. I identify signatures of accused Manoj
Gambhir at point A 5 on the note Ex PW6/I. File no.21/96/5050 containing
page 1 to 29 is also file of D O No. 16 which I identify. The same is Ex
PW6/J. I identify signatures of accused Manoj Gambhir at point A 6 on the
note Ex PW6/K. File No. M/96/5226 containing pages 1 to 50 is file of D
O No.16 which I identify. The same is Ex PW6/L.
43 Similarly, File No.94/5267 containing pages 1 to 34 is file of D
O No.16 which I identify. The same is Ex PW6/M. I identify signatures of
accused Manoj Gambhir at point A 7 on Ex PW6/N and at point A 8 on the
CC No.37/01 34/66
35
note Ex PW6/O. I cannot identify who has made the body writing on
cheques D80 to D86 on encircled portions Q12 to Q18."
44 PW7 Meeta Bhatacharya has also deposed with regard to
preparation of documents on the basis of which claims were passed and
cheques prepared . She has identified hand writing of accused Manoj
Ghambir and Desh Deepak on various documents. Relevant portion of
her statement is as under:
"I have seen voucher no. 504 relating to BHEL. It is prepared
and initialed by accused Manoj Gambhir. I identify his writing at encircled
portion Q1 and his initials at point A as I have seen him writing and signing
as he has worked under me for several years.. I also identify my signatures
at point B. This voucher is now exhibited as Ex PW 7/A1. I also identify
writing of accused Manoj Gambhir at encircled portion Q18 on cheque Ex
PW7/A2. This cheque was signed by me at point A and at point B Mr.
Partha Kanjilal, Asstt. Divisional Manager at that time. Similarly, voucher
No. 1221 mark M5 has been prepared by Manoj Gambhir. I identify his
writings at encircled portion Q4 and his initials at point A and my own
signatures at point B. The same is Ex PW7/B1 and cheque No. 508778 is
prepared by accused Desh Deepak. I identify his writings at encircled
portion Q16. I have seen him writing and signing as he has worked under
CC No.37/01 35/66
36
me for several years. I also identify my signatures at point A and that of Sh.
P K Sethi, Asstt. Divisional Manager at point B on this cheque Ex PW7/B2
(D 84). At the time of signing the cheque, the voucher particulars are
checked. I had checked the corresponding vouchers before signing cheque
Ex PW7/A2 and Ex PW7/B2 which were made out to Public Sector
Companies BHEL and Bharat Electronics Ltd. Cheque Ex PW7/B2 must
have been altered subsequently after signing of the cheque by me and Mr.
Sethi. The cheque Ex PW7/B2 was prepared on the basis of voucher and
voucher is in the name of Bharat Electronics Ltd. Similarly, cheque
ExPW7/A1 also was changed subsequently after signing by me and Mr.
Parha Kanjilal as the corresponding voucher is in the name of BHEL. File
Ex PW6/D is file of Division Office no.16. Scrutiny sheet at page No.9 mark
Q138 is in the handwriting of accused Manoj Gambhir which I identify. The
same is Ex PW7/C1. Similarly, writings at encircled portion Q139 on the
back side of the sheet is also that of Manoj Gambhir. The same is Ex
PW6/A. I have also seen scrutiny sheet at page No.4 and the handwriting at
encircled portion Q140 is that of accused Manoj Gambhir which is Ex PW
7/C2 and at encircled portion 141 Ex PW6/B is also that of accused Manoj
Gambhir. Writing at encircled portion Q142 Ex PW6/C is also that of
accused Manoj Gambhir.
CC No.37/01 36/66
37
45 I have seen file Ex PW6/J of Division office No.16 at page
28,writing at encircled portion Q129 on the scrutiny sheet is that of accused
Manoj Gambhir which I identify and writing at encircled portion Q130 Ex
PW6/K is also that of accused Manoj Gambhir.
46 Similarly file Ex PW6/H of DO No.16 contains Scrutiny form
relating Bharat Eelctronics Ltd.. It is prepared by Manoj Gambhir. I
identify his handwriting at encircled portion Q131. The same is Ex PW7/D1
and I also identify his handwriting at encircled portion Q132, ExPW6/I."
47 PW10 Sh Gulshan Khera also identified various documents
prepared by accused Manoj Ghambir and Desh Deepak used in this fraud.
48 On 09/07/1999 accused Manoj Kumar made on extra judicial
confession in his own hand writing, prior to the registration of this case i e
on 19/11/1999, admitting his guilt and his involvement in this case and
pleaded that he be allowed to refund the amount to the company which was
withdrawn by him due to his fraudulent acts. The extra judicial confessional
statement of accused is as under:
" 1.I have been dealing with nonmotor claims i.e., Marine, Fire
and Engg. of Public Sector Clients which accounts for 99% of the claims.
CC No.37/01 37/66
38
The public sector clients are BHEL, BEL, DESU, MTNL, CCICI & CTS etc.
1.I used to prepare the claims scrutiny sheets and claims voucher & the same used to be passed by ADM & SDM. The cheques were prepared by the Accounts dept. in most of the cases the cheques are prepared by Mr. Desh Deepak Asstt (T) and after preparing the cheque he used to get the cheque signed from the officers and after that the cheques were delivered back to me. I used to handover the cheques to the representative of BHEL & BEL whenever they visited our office. The cheques are not sent by post.
2. In January 96 there was a Marine claim of approximately Rs. 60,000/ of BEL. The scrutiny was prepared & the claim voucher was also passed. Due to some technical reasons the claim was withdrawn by BEL. From here it struck to my mind that the claim is already approved and voucher passed for payment why should I not utilise the money for our own purpose.
I talked to my friend Mr. Desh Deepak who was working as Asstt. in accounts and used to prepare cheques and told him to take advantage of the opportunity and then we will share the money. Mr. Deepak then prepared the cheque in the name of Bharat Electronics. Mr. Deepak resides in Sake and he knew some friend who was having account with PNB Khanpur. I still don't know the name and the identity of the person. CC No.37/01 38/66 39 The account was opened in the name of M/s. Bhaat Electronics as a sole proprietary firm with the opening amount of Rs. 5,000/ cash. The cheque was takne by Sh. Deepak and the aranged to deposit the same in this account. After a gap of few days the amount was withdrawn by this friend of Deepak and it was shared equally by three persons namely myself, Deepak and his friend. I was paid Rs. 20,000/ cash by Mr. Deepak at his residence.
3. Thereafter, I alongwith Sh. Desh Deepak used to come out with new ideas and stared changing the names on the cheque of BEL and BHEL. The total amount misappropriated by us is as under: 13/02/1996 BEL 62,291/ 13/09/1996 BHEL 1,01,325/ 13/02/1997 BEL 1,78,987/ 23/02/1998 BEL 2,79,678/ 22/09/1997 BEL 54,098/ 18/03/1999 BEL 1,66,000/ (approx.) BHEL 75,539/ 9,17,9918/ CC No.37/01 39/66 40 The cheque were deposited by me alongwith Mr. Deepak in various Bank account as under: PNB Khanpur account open in the name of M/s. Bharat Electronics and cheques also prepared in the name of M/s. Bharat Electronic.
Rs. 62,291/ Claims of BEL
Rs. 1,66,000/
Vijaya Bank Chandini Chowk account opened in the name of Bharatjee Electronics Pvt. Ltd. and the following cheques were deposited: Rs. 1,78,987/ Claims of BEL Rs. 2,79,678/ Rs. 54,098/ State Bank of India Darya Ganj current account was opened in the name of M/s. Bhels Chand & Association and the following cheques were deposited: Rs. 1,01,325/ Claim of BHEl Rs. 75,539/
5. The method used for preparing the cheque is as under
(I) M/S. BHARAT ELECTRONIC (the cheque was prepared in the above style) CC No.37/01 40/66 41 (II)M/S. BHARAT ELECTRONIC LTD.
It was changed as under
M/S. BHARAT JEE ELECTRONICS PVT. LTD.
This was changed after getting the cheque signed.
(III)M/S. BHEL It was changed as under
M/S. BHELA CHAND & ASSOCIATION.
6. The current account was opened wih Vijaya Bank, Chandni Chowk in the name of M/s. Bharatjee Electronics Pvt Ltd. and my neighbour Mr. Bharat Kumar who is my friend also he has withdrawn th money from the bank. The money was again shared by us i.e., Deepak, Bharat and myself. I have some friend in Vijaya Bank who arranged introduction for opening this account from some outside party which I remember was Manish Electronics.
7. The current account with State Bank of Patiala, Darya Ganj was opened in the name of BHELA CHAND & Association as a sole proprietary firm and the name of the Bharat Kumar was mentioned as sole proprietor. The account was introduced by my friend in State Bank of Patiala. The money withdrawn by Mr. Bharat Kumar used to the shared equally by Mr. Bharat CC No.37/01 41/66 42 Kumar, Deepak and myself.
8. In all these cases except item no. 1 double payments were made by making fresh scrutiny sheet and claim voucher and new claim number. Cheques were for different amount slightly higher and paid after the gap of one month or two month and thus the amount were paid to the parties i.e., BHEL and BEL. The old scrutiny and vouchers were removed from the files.
9. I confirm that I alongwith Deepak have not made any other mistake in the financial transactions of the company except for 7 cheques as stated above. I have not made any other irregularity in the records of the company.
With this confession I would like to state that I may be allowed to refund the amount to the company and hope that the company will be kind enough to me.
49 This extra judicial confession was made by accused Manoj Ghambir before PW 4 Sh D C Gupta who has appeared in the witness box . He has been cross examined at length on behalf of all the accused including Manoj Ghambir . Not even a single suggestion has been given to this witness to the effect that accused Manoj Ghambir had not voluntarily made the confession. In furtherance of this confession accused Manoj Kumar has CC No.37/01 42/66 43 deposited the amount in question with the OIC. This confession was made by accused prior to registration of FIR of this case. Accused has not moved any application retracting his above confession during the trial till date in this Court. All these circumstances, proves beyond reasonable doubt that accused had made his confession Ex PW4/B voluntarily without any force, coercion or duress. In these circumstances, this Court is satisfied that confession made by Manoj Ghambir is true and correct . It well settled legal proposition that conviction can be based on an extra judicial confession if found true and voluntarily made .
50 Hon'ble Supreme Court in State of UP Vs A K Anthony AIR 1985 SC48 with regard to extra judicial confession has stated as follows:
''There is neither any rule of law nor of prudence that evidence furnished by extra judicial confession cannot be relied upon unless corroborated by some other credible evidence the Courts have considered the evidence of extra judicial confession a weak piece of evidence. If the evidence about extra judicial confession comes from the mouth of witness / witnesses who appear to unbiased, not even remotely enemical to the accused, and in respect of whom nothing is brought out which may tent to CC No.37/01 43/66 44 indicate that he may have motive for attributed and untruthful statement of the accused; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is a perpetrator of the crime and nothing is omitted by the witness which may militate against it, after subjecting the evidence of the witness to a rigorous test on the touch stone of the credibility if it passes the test the extra judicial confession can be accepted and can be the basis of conviction. In such a situation to go in search of corroboration itself tents to cast a shadow of doubt or the evidence. If the evidence of extra judicial confession is reliable trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon."
51 Similar view has been taken by our Hon'ble Supreme Court in Baldev Raj Vs State of Haryana AIR 1991 SC37 wherein it held as follows:
" An extra judicial confession, if voluntary, can be relied upon by the Court alongwith other evidence in convicting the accused. The value of the evidence as to the confession depends upon the veracity of the witnesses CC No.37/01 44/66 45 to whom it is made. It is true that the Court requires the witness to give the actual words used by the accused as nearly as possible but it is not an invariable rule that the Court should not accept the evidence, if not the actual words bu the substance were given. It is for the Court having regard to the credibility of the witness to accepts the evidence or not. When the Court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, conviction can be founded on such evidence. In the instant case, the confession has been properly accepted and acted upon by the lower Courts and there is no scope for any doubt regarding the complicity of the appellant in the crime, The confession of the accused appellant was voluntary. The testimony of witness being responsible persons could not be doubted in the absence of any material to show that they had been motivated to falsely implicate the appellant. There was no infirmity in the confession which had been accepted and relied upon by the Courts and hence has to be maintained."
52 PW1 Mahesh Chandra had identified accused Bharat in State bank of Patiala on 04/10/96 wherein he has opened a current account no. 7208 in the name of Bhela Chand & Associates. Before this witness, Bharat Kumar has stated that he was opening this account as he will start a joint business of financial adviser alongwith accused Manoj Gambir. This witness CC No.37/01 45/66 46 has again confirmed this fact in his cross examination. Relevant portion of his statement in this regard is as under:
" In June, 2000 I was working as Clerk cum typist in State Bank of Patiala, Janpath Branch, New Delhi. I have seen Account Opening Form (D16) pertaining to current account no. 7208 of State Bank of Patiala opened on 4.10.96 in the name of M/s Bhela Chand & Associates. This account was introduced by me and I identify my signatures at point A1 and A2 which I had made as token of introduction. The Form is Ex P| W1/A. I also identify the photographs of Sh. Bharat Kumar on the account opening form Ex PW1/A. Sh. Bharat Kumar lived in my neighbour and I knew him so I had introduced his account. I have seen the corresponding Specimen Signatures card of this account. It is signed by Bharat Kumar at points B1 to B5 which I identify as he had signed on these points in my presence. The specimen signatures card is Ex. P|w1/B. I have also seen affidavit attached with Ex PW1/A and B. The same is signed by Bharat Kumar at points B6, B7 and B8 which I identify.
53 The affidavit is Ex PW1/C. At the time of opening of this account only Bharat Kumar had come to the bank. I can identify accused Bharat Kumar present in the court (correctly identifies). Accused Manoj Gambhir was also living in my neighbourhood. Accused Bharat Kumar CC No.37/01 46/66 47 had told me at the time of opening of this account that he alongwith Manoj Gambhir will start a joint business of Financial Advisor and for the same purpose they wanted to open this account. I also identify accused Manoj Gambhir present in the court (correctly identifies) XXX by Sh. K K Patra counsel for accused Manoj Gambhir It is correct that accused Bharat Kumar came in the court alone to open the account and at that time he told me that he will start a business alongwith Manoj Gambhir and for that purpose he wanted to open this account.
54 Prosecution has produced statement of CC account No.7208 in the name of M/S Bhela Chand and Associates opened by Bharat Kumar which is Ex PW12/G, Certified under Bankers Book of Evidence Act . From this statement of account it is clear that a cheque No.182659 of Rs 75539/ pertaining one of the above referred claims, was deposited in this account on 26.3.99 and an amount of Rs.60,000/ was withdrawn by Bharat Kumar on 31.3.99 from this account which proves that this account was used by accused Bharat Kumar in furtherance of criminal conspiracy with his co accused Manoj Ghambir and Desh Deepak for withdrawing the defrauded amount.
CC No.37/01 47/66 48 55 From the above discussion it is clear that a criminal conspiracy was going on among the accused to defraud the OIC. The then continuing criminal conspiracy among the accused is also proved from the evidence of handwriting expert who has proved handwriting of accused Desh Deepak and Manoj Gambhir on various documents cheques, vouchers, account opening forms etc. 56 A s per opinion of Handwriting Expert Ex.PW11/A the following documents are in the Handwriting of Accused Manoj Gambhir. Q1 Oriental Insurance Co. Ltd. Bhugtan, Dava Ex.PW7/A1, D4 Bhugtan/Samayojan Voucher No.00504 dt.13.09.1996 for Rs.1,01,325/. In fvaour of M/s BHEL, being full and final payment of the claim.
Q2 Oriental Insurance Co. Ltd. Bhugtan, Dava Ex.PW10/A, A, D4 Bhugtan/Samayojan Voucher No.00979 dt.13.02.1997 for Rs.1,78,987/. In fvaour of M/s Bharat Electronics Ltd., being full and final payment of the claim. Q3 Oriental Insurance Co. Ltd. Bhugtan, Dava Ex.PW10/A1,A, Bhugtan/Samayojan Voucher No.00620 dt.22.09.1997 D4 for Rs.54,098/. In fvaour of M/s Bharat Electronics Ltd., being full and final payment of the claim. Q4 Oriental Insurance Co. Ltd. Bhugtan, Dava Ex.PW7/B1,A,B Bhugtan/Samayojan Voucher No.01221 dt.23.02.1998 D4 for Rs.2,79,678/. In fvaour of M/s Bharat Electronics Ltd., being full and final payment of the claim. CC No.37/01 48/66 49 Q7 Oriental Insurance Co. Ltd. Bhugtan, Dava Ex.PW10/A2, D4 Bhugtan/Samayojan Voucher No.01005 dt.21.03.1996 for Rs.1,78,987/. In fvaour of M/s Bharat Electronics Ltd., being full and final payment of the claim No. 94/5281, G.R. No.97/824787 dt.16.02.1994.
Q8 Oriental Insurance Co. Ltd. Bhugtan, Dava Ex.PW10/A3,A, Bhugtan/Samayojan Voucher No.00242 dt.20.06.1996 D4 for Rs.1,78,987/. In fvaour of M/s Bharat Electronics Ltd., being full and final payment of the claim approved by DCC.
Q9 Oriental Insurance Co. Ltd. Bhugtan, Dava Ex.PW10/A4,A, Bhugtan/Samayojan Voucher No.00814 dt.27.12.1996 D4 for Rs.1,78,987/. In fvaour of M/s Bharat Electronics Ltd., being credit to account II for state cheque No. 863949 dt.20.06.1996.
Q10 Oriental Insurance Co. Ltd. Bhugtan, Dava Ex.PW10/A5,A, Bhugtan/Samayojan Voucher No.1209 dt.20.02.1998 D4 for Rs.72,131/. In fvaour of M/s Bharat Electronics Ltd., being full and final settlement of claim Q20 PNB, Cheque Deposit Slip dt.30.12.1998, in respect of A/c No.2110 for Rs.1,66,292/, for depositing of Cheque No.750524 of Indian Overseas Bank, Tolstoy Marg in favor of Bharat Electronics.
Q22 Account opening form of State Bank of Patiala in Ex.PW1/A, D16 respect of M/s Bhela Chand & Associates, 164 Teliwara, Shahdra, Delhi32. Name of the partner Shri Bharat Kumar, r/o 164 Teliwara, Shahdra, Delhi32. Introducer Shri Mahesh Chand.
Q26 State Bank of Patiala, Cash Credit Pay In Slip dt. D17 04.10.1996, in respect of A/c No.7208 for Rs.5000/, for credit of M/s Bhela Chand & Associates.
CC No.37/01 49/66 50 Q28 Q29A & State Bank of Patiala, Cash Credit Pay In Slip dt. D18 Q31 11.10.1996, in respect of A/c No.7208 for Rs.
1,01,325/, for credit of M/s Bhela Chand & Associates.
Q32 State Bank of Patiala, Cheque No.651151 dt. Ex.PW2/B21, D23 12.10.1996 of A/c No.7208 for Rs.50,000/ favoring M.M. Investment.
Q34 State Bank of Patiala, Cheque No.651152 dt. B2, D24 15.10.1996 of A/c No.7208 for Rs.25,000/ favoring self .
Q40A State Bank of Patiala, Cheque No.651155 dt. B5, D27 28.11.1996 of A/c No.7208 for Rs.5200/ favoring DFS Fixed Deposit Scheme.
Q47 State Bank of Patiala, Cheque No.651159 dt. B9, D31 31.03.1997 of A/c No.7208 for Rs.2,350/ favoring M/s Bharatjee Electronics P. Ltd.
Q65 Vijaya Bank Cheque No.258557 DT.07.06.1997 of Mark PW8/A10, A/c No.7032 for Rs.25,000/ favoring Self. D55 Q68 Vijaya Bank Cheque No.258554 DT.26.04.1997 of Mark PW8/A11, A/c No.7032 for Rs.15,000/ favoring Self. D56 Q71 Vijaya Bank Cheque No.258555 DT.28.04.1997 of Mark PW8/A12, A/c No.7032 for Rs.40,000/ favoring Self. D57 Q74 Vijaya Bank Cheque No.258562 DT.01.10.1997 of Mark PW8/A13, A/c No.7032 for Rs.35,000/ favoring Self. D58 Q77 Vijaya Bank Cheque No.258565 DT.20.03.1998 of Mark PW8/A14, A/c No.7032 for Rs.80,000/ favoring Self. D59 Q94 Vijaya Bank Cheque No.258552 DT.09.04.1997 of Mark PW8/A22, A/c No.7032 for Rs.75,000/ favoring Self. D67 CC No.37/01 50/66 51 Q101 & Vijaya Bank, Chandani Chowk branch Current Mark PW8/A25, Q102 Account Pay in Slip dt.29.09.1997, in respect of D70 Current Account No.7032 for Rs.54,098/ for credit of M/s Bharatjee Electronics Pvt. Ltd. On the reverse of the slip details of cheque number 897833 for Rs. 54,098/ of Indian Overseas Bank, Tolstoy Marg, New Delhi is mentioned.
Q105 & Vijaya Bank, Chandani Chowk branch Current Mark PW8/A28, Q106 Account Pay in Slip dt.29.09.1997, in respect of D73 Current Account No.7032 for Rs.1,78,987/ for credit of M/s Bharatjee Electronics Pvt. Ltd. On the reverse of the slip details of cheque number 882591 dt. 13.02.1997 for Rs.1,78,987/of Indian Overseas Bank, Tolstoy Marg, New Delhi is mentioned.
Q107 & Vijaya Bank, Chandani Chowk branch Current Mark PW8/A29, Q108 Account Pay in Slip dt.03.04.1997, in respect of D74 Current Account No.7032 for Rs.2000/ for credit of M/s Bharatjee Electronics Pvt. Ltd. On the reverse of the slip details of cheque number 722380 dt. Nil for Rs.2000/of Vijaya Bank, Vigyan Vihar, New Delhi is mentioned.
Q109 & Vijaya Bank, Chandani Chowk branch Current Mark PW8/A30, Q110 Account Pay in Slip dt.03.04.1997, in respect of D75 Current Account No.7032 for Rs.2350/ for credit of M/s Bharatjee Electronics Pvt. Ltd. On the reverse of the slip details of cheque number 651159 dt.
31.03.1997 for Rs.2350/of State Bank of Patiala, Darya Ganj, New Delhi, New Delhi is mentioned. CC No.37/01 51/66 52 Q112 Vijaya Bank, Chandani Chowk branch Current Mark PW8/A32, Account Pay in Slip dt.27.03.1997, in respect of D77 Current Account No.7032 for Rs.5000/ for credit of M/s Bharatjee Electronics Pvt. Ltd.
Q114 Vijaya Bank Account Opening Form dt.26.03.1997 in Mark PW8/A1, respect of CA 7037 of M/s Bharatjee Electronics Ltd. D46 Introducer was Properitor of V.K. Electricals having A/c No.3381.
Q123 & Partners liability letter dt.27.03.1997 submitted with Mark PW8/A5, Q124 Branch Manager Vijaya Bank, Chandani Chowk, D50 Delhi by Shri Bharat Channana and Mohan Gambhir, Directors Bharatjee Electronics Pvt. Ltd.
Q127 The Oriental Insurance Co. Ltd. Marine Claim Ex.PW7/F1 Q128 Scrutiny form in respect of claim No.95/5195, Policy Ex.PW6/6, A4, D7 No.95/50134 in respect of M/s Bharat Electronics Ltd. for claim amount of Rs.72,131/ . Bill of lading No.AWB22023182784 dt.28.11.1994. The claim was settled for Rs.72,131/.
Q129 & The Oriental Insurance Co. Ltd. Marine Claim Ex.PW6/K, A6, Q130 Scrutiny form in respect of claim No.96/5050, Policy D9 No.94/50016 in respect of M/s BHEL Suratgarh for claim amount of Rs.1,35,600/. Bill of lading No. 97065 & 97066 dt.02.03.1995. The claim was settled for Rs.1,34,100/.
Q131 & The Oriental Insurance Co. Ltd. Marine Claim Ex.PW7/D1 Q132 Scrutiny form in respect of claim No.97/5132, Policy Ex.PW6/1, A5, D8 No.97/50274 in respect of M/s Bharat Electronics Ltd. for claim amount of Rs.2,79,678/. Bill of lading No.AWB09872653350 dt.06.03.1997. The claim was settled for Rs.2,79,678/.
CC No.37/01 52/66 53 Q133 Letter No.8503/678041/CLM2110 dt.28.05.1997 of Ex.PW7/D2, D8 M/s Bharat Electronics Ltd., Bharat Nagar, Ghaziabad, UP, forwarding thereby documents such as Claim Bill No. CLM/2110, Supplier Invoice No. 1164803, copy of AWB No. etc. for settlement of claim.
Q134 Handwritten note mentioning therein that telephonic D5 message received from Shri Tejpal of Bharat Electronics Ltd., Ghaziabad that they have received 41 Nos. transistors short under AWB No. 09872653350, HAWB No.29938016, PO No.678041. It has been further mentioned that the estimated amount of loss is Rs.2,78,000/. We may depute some surveyor.
Q135 Proforma for compliance of section 64 VB of the Ex.PW6/N A7, insurance act 1938. Policy No.94/50004, Claim No. D11 94/5267.
Q136 & The Oriental Insurance Co. Ltd. Marine Claim Ex.PW6/N E1 Q137 Scrutiny form in respect of claim No.94/5267, Policy Ex.PW6/0, A8, No.94/50004 in respect of M/s Bharat Electronics Ltd. D11 for claim amount of Rs.83,054/. Bill of lading No.G.R. No.319417 dt.30.12.1993. The claim was suggested to be settled for Rs.83,054/ subject to the submission of Carbon Copy of GR, Salvage position, reply of carrier.
Q138 & The Oriental Insurance Co. Ltd. Marine Claim Ex.PW7/01 Q139 Scrutiny form in respect of claim No.95/5195, Policy Ex.PW6/A, A1, No.95/50134 in respect of M/s Bharat Electronics Ltd. D5 for claim amount of Rs.72,131/ . Bill of lading No.AWB22023182784 dt.28.11.1994. The claim was settled for Rs.54,098/.
CC No.37/01 53/66 54 Q140 & The Oriental Insurance Co. Ltd. Marine Claim Ex.PW7/C2 Q141 Scrutiny form in respect of claim No.95/5017, Policy Ex.PW6/B, A2, No.94/50016 in respect of M/s BHEL Suratgarh for D5 claim amount of Rs.1,35,600/. Bill of lading No. 97065 & 97066 dt.21.03.1995. The claim was settled for Rs.1,01,325/.
Q142 This is note in respect of claim No.95/5017 and Ex.PW6/C, A3, 96/5050 of M/s BHEL Suratgarh. It has been D5 suggested in the note that these two claims have been wrongly registered against damages to consignment under G.R. No.97065 and 97065 dt.02.03.1995. It has been further suggested to close the file No.96/5050 and merge it into 96/5017.
57 As per opinion of Handwriting Expert Ex.PW11/A the following documents are in the Handwriting of Accused Desh Deepak. Q5 Oriental Insurance Co. Ltd. Bhugtan, Dava Ex.PW10/A7, A, Bhugtan/Samayojan Voucher No.01082 dt. D4 18.12.1998 for Rs.1,66,292/. In fvaour of M/s Bharat Electronics Ltd., being full and final payment of the claim.
Q6 Oriental Insurance Co. Ltd. Bhugtan, Dava Ex.PW10/A8, D4 Bhugtan/Samayojan Voucher No.01532 dt.
18.03.1997 for Rs.75,539/. In fvaour of M/s BHEL, being full and final payment of the claim.
Q11 Oriental Insurance Co. Ltd. Bhugtan, Dava Ex.PW10/A9,A, Bhugtan/Samayojan Voucher No.01138 dt. D4 04.01.1999 for Rs.1,66,292/. In fvaour of M/s Bharat Electronics Ltd., full and final settlement of the claim.
CC No.37/01 54/66 55 Q12 Indian Overseas Bank Cheque No.521684 A/c Ex.PW9/A1, D80 No. 4085, dt.13.02.1996 for Rs.62,291/ favouring M/s Bharat Electronics.
Q13 Indian Overseas Bank Cheque No.750524 A/c Mark Ex.PW9/A2, No. 4085, dt.18.12.1998 for Rs.1,66,292/ D81 favouring M/s Bharat Electronics.
Q14 Indian Overseas Bank Cheque No.882591 A/c Mark Ex.PW9/A3, No. 4085, dt.13.02.1997 for Rs.1,78,987/ D82 favouring M/s Bharatjee Electricals P.Ltd.
Q15 Indian Overseas Bank Cheque No.897833 A/c Mark Ex.PW9/A4, No. 4085, dt.23.09.1997 for Rs.54,098/ D83 favouring M/s Bharatjee Electricals P. Ltd.
Q16 Indian Overseas Bank Cheque No.508778 A/c Mark Ex.PW9/A5, No. 4085, dt.23.02.1998 for Rs.2,79,678/ D84 favouring M/s Bharatjee Electricals P. Ltd. Ex.PW7/B2 Q17 Indian Overseas Bank Cheque No.182659 A/c Mark Ex.PW9/A7, No. 4085, dt.18.03.1999 for Rs.75,539/ D86 favouring M/s Bhela Chand & Associates.
Q18 Indian Overseas Bank Cheque No.882175 A/c Mark Ex.PW9/A6, No. 4085, dt.13.09.1996 for Rs.1,01,325/ Ex.PW7/A2 D85 favouring M/s Bhela Chand & Associates.
Q19 PNB Account opening form of Bharat Ex.PW3/DA, D12 Electronics Prop. Shri Bharat Chandra Joshi, r/o 91/3, Sector1, Saket, New Delhi17. Introducer was Shri Jagdish Prasad Upadhyay of Manya Furnishers 58 U/s 30 voluntarily made confession of co accused implicating himself and his co accused, can be used as corroborating evidence against his CC No.37/01 55/66 56 co accused jointly facing trial with him. A bench of Four Judges of Hon'ble Supreme Court in Balbir Singh Vs State of Punjab AIR 1957 SC 216 in this regard has held as follows:
" So far as the confessional statement of one accused is concerned, it may be taken into consideration against the other accused if it fulfils the condition laid down in S.30 of the Evidence Act . One of the condition is that the confession must implicate the maker substantially to the same extent as the other, accused person against whom it is sought to be taken into consideration."
59 Accused Jagdish Chander Upadhaya has opened CC account No. 2110 under the name and style of Bharat Electronics under the fake name impersonating as Bharat Chandera Joshi, Proprietor of the firm Bharat Electronics. Account opening form of the same Ex PW3/DA bears his ( Jagdish Chandra ) photograph. Accused Jagdish Chander was identified as Bharat Chander Joshi for opening the above said account in the bank by accused Devender Upadhaya as a Proprietor of Manya Furnisher CC A/C No. 1924. Bank has opened this account in the name of "Bharat Electronics" through its Proprietor Bharat Chandra Joshi ( under fake name ) On the identification of accused Devender Upadhaya . Specimen signatures card alongwith this account opening form also bears photograph of accused CC No.37/01 56/66 57 Jagdish Chandra. As the accused Jagdish Chander is appearing in this Court hence this Court can also take judicial notice of the fact that photograph affixed on the account opening form Ex PW3/DA, which is opened in the fake name of Bharat Chandra Joshi, is of accused Jagdish Chander . Both these photographs affixed on account opening form and specimen card bears cross seal of the bank on the same. Prosecution has also proved statement of CC account No. 2110 which is Ex PW3/DB in the name of Bharat Electronics, which is also certified under Bankers Book and Evidence Act. In this account cheques of amount of Rs.62,291/ and 1,66,292/ of the claims in question was deposited through clearing and subsequently Rs. 62,000/ were withdrawn by a self cheque and an amount of Rs.1,65,000/ was transferred to account of MM by clearing. This is how this account is used for defrauding the OIC.
60 The then ongoing criminal conspiracy among the accused is also proved from the fact that account opening form Ex PW3/DA of Bharat Electronics which is opened by accused Jagdish Chander in the fictitious name impersonating as Bharat Chandra Joshi has been filled in by accused Desh Deepak. According to GEQD report Ex PW11/A hand writing at point Q19 on Ex PW3/DA is of accused Desh Deepak . This account was opened on the introduction of accused Devender CC No.37/01 57/66 58 Upadhaya, thus it proves that all these accused were acting in furtherance of a common criminal conspiracy hetched by them. 61 Conspiracy consists in a combination or agreement between two or more person to do an unlawful act or to do a lawful act by unlawful means. A conspiracy is an inference drawn from the circumstances. There cannot always be much direct evidence about it. Conspiracy can be inferred even from the circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. Since Conspiracy is often hatched up in utmost secrecy, it is most impossible to prove conspiracy by direct evidence. It has to be inferred from the acts, statements and conduct of parties to the conspiracy. Thus, if it is proved that the accused pursued, by their acts, the same object often by the same means, one performing one part of the act and the other another part of the same act so as to complete it with a view to attainment of the object which they were pursuing, the court is at liberty to draw the inference that they conspired together to effect that object. Conspiracy has to be treated as a continuing offence and whosoever is a party to the conspiracy, during the period for which he is charged, is liable under this section.
CC No.37/01 58/66 59 62 It is not an ingredient of the offence under this section that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. The entire agreement must be viewed as a whole and it has to be ascertain as to what in fact the conspirators intended to do or the object they want to achieve. It is not necessary that each member of conspiracy must know each other or all the details of the conspiracy. It is also not necessary that every conspirator must have taken place in each and every act done in pursuance of a conspiracy.
63 Though to establish the charge of conspiracy there must be agreement, there need not be proof of direct meeting or combination , nor need the parties be brought into each other's presence; the agreement may be inferred from the circumstances raising presumption of a common concerted plan to carry out the unlawful design. Conspiracy need not be established by proof which actually brings the party together; but may be shown like any other fact, by circumstantial evidence. So again it is not necessary that all should have joined in the scheme from the first point; those who come in at a later stage are equally guilty.
64 Conspiracy hatched in secrecy and executed in darkness. In a case of conspiracy, it is not expected from the prosecution that it will produce evidence to show that conspirators executed agreement to commit crime before the witnesses to prove the existence of conspiracy. Conspirators take CC No.37/01 59/66 60 all precautions to keep their plan secret hence prosecution cannot produce direct evidence to prove agreement to commit conspiracy. 65 In Kher Singh Vs State AIR 1988 SC 1883 it is observed as follows:
" Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on th evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon the circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must require whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the later does. It is however, essential that the offence of conspiracy required some kind of physical manifestation or agreement the express agreement however need not be proved. Nor mutual meetings of the two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Conspiracy can be proved by circumstances and other material."
66 In a case of criminal conspiracy any evidence available against CC No.37/01 60/66 61 any of the accused is admissible against all the accused. Once a conspiracy is proved among the accused, act of one conspirator become act of all other conspirators also. In this regard Ld. SPP placed reliance on Shiv Narain Laxmi Narain Joshi Vs State of Maharashtra, (1980 ) 2 Supreme Court Cases 465 has held as follows:
" Penal Code, 1860 Section 120B - Since it is impossible to adduce direct evidence of conspiracy, the offence can only be proved largely from the inference drawn from acts or illegal omissions committed by the conspirators in pursuance of a common design Once such a conspiracy is proved, act of one conspirator becomes act of the other A coconspirator, who joins subsequently and commits overt acts in furtherance of the conspiracy, held is also liable Evidence Act, 1987 Section 10."
67 Hon'ble Supreme Court in Firozuddin Basheeruddin & Ors. Vs. State of Kerala, (2001) 7 Supreme Court Cases 596 has held as follows:
"Conspiracy is not only a substantive crime but on the basis of it a conspirator can also be held liable for the crimes committed by conspirators in furtherance of the objectives of the conspiracy Conspiracy can be established on the basis circumstances evidence As regards CC No.37/01 61/66 62 admissibility of evidence strict standards are not necessary inasmuch as any declaration made by a conspirator in furtherance of and during pendency of a conspiracy though hearsay, is admissible against each co conspirator On facts held, Supreme Court's interference with concurrent finding that criminal conspiracy proved and on the basis offence of murder also made out not called for."
68 Hon'ble Supreme Court in Ram Naryan Popli Vs. CBI AIR 2003, SC 2748 has held as follows:
"The essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120B read with the proviso to sub Section (2) of Section 120A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120B and the proof of any overt act by the accused or by any one of them would not be CC No.37/01 62/66 63 necessary."
69 Hon'ble Supreme Court in P K Narayan Vs. State of Kerala, All India Criminal Law Reporter 1994 (3) 785, has held as follows:
"Penal Code, 1860, Section 120B Evidence Act, 1872, Section 3 - Criminal Conspiracy Essence of Criminal conspiracy - It is an agreement to do an illegal act - Agreement can be proved either by direct evidence or by circumstantial evidence or by both - Complicity of the accused - Circumstances proved before, during and after the occurrence required to be considered to decide about the complicity of the accused But if the circumstances are compatible with the innocence of the accused persons then it could not be held that the prosecution had successfully established its case."
70 It is correct that mere opening or introducing an account in bank is no offence, but opening an account in the bank in fake name and introducing a person in the bank for opening an account in fake name is certainly a criminal offence, and using the fake account for defrauding the money makes it much graver offence.
71 My Ld Predecessor Sh B S Mathur the then Special Judge has framed charges against accused Jagdish Chander Upadhaya and Devender Upadhaya on 23.5.2006. I have also perused corresponding order sheet CC No.37/01 63/66 64 dated 23.5.2006 of my Ld Predecessor which is as under:
" Present: Sh C P Panday, Sr PP for CBI All six accused are on bail Sh R J Tarun, Adv is present.
Charge against accused Jagdish Chander Upadhaya and Devendeer Upadhaya have been framed. They have pleaded not guilty and claimed to be tried."
72 It is correct that my Ld Predecessor has not passed a detailed order of framing charge against both these accused. There is no legal necessity of passing a detailed order for framing of charge if the Court is satisfied that a prima facie case is made out against accused for framing of charge. However my Ld Predecessor has framed detailed charge elaborating all the aspects against both these accused. From the above order sheet it is also clear that charge was framed against both these accused in presence of his counsel Sh R J Tarun whose attendance is marked by name by my Ld Predecessor. No objection was raised on behalf of accused at that time. Accused Jagdish Chander has not challenged the framing of charge against him till date. After framing of the above said charge 23.5.2006 this trial has proceeded till date . First time this objection that charge has been framed against accused Jagdish Chander raised by Ld Defence counsel during the CC No.37/01 64/66 65 course of final argument. Even during the course of final arguments Ld Defence counsel could not point out as to what prejudice has been caused to him by framing of charge against Jagdish Chander on 23.5.2006. In view of above discussion, I am of the opinion that there is no merit in this argument. 73 CC Account No. 7032 in the name of Bhartjee Electronics Pvt Ltd was opened jointly by Bharat Chanana and Manoj Ghambir in Vijaya Bank Chandni Chowk . PW 8 Vijay Kumar appeared in the witness box and has proved seizure memo Ex PW8/A vide which he had given various documents marked PW 8/A1 to A33 but IO has not cited any witness who had executed these documents. These documents have only been marked but not proved and exhibited as per law., hence these documents cannot be relied upon against any of the accused Bharat Kumar and Manoj Ghambir. Prosecution has produced various cheque which are marked PW 8/A8 to PW8/A24. None of these cheques issued or received under the signatures of accused Manoj Ghambir. All these cheques issued by Bharat Chanana who has also received payments of these cheques as all these cheques are self cheques. Thus prosecution has also failed to prove that accused Mohan Ghambir received any amount out of the defrauded amount. There is no evidence on the file that any of the cheque of claims in question was CC No.37/01 65/66 66 deposited by accused Mohan Ghambir in this account. Mere opening a joint account does not constitute and offence unless some dishonest intention of the person concerned is proved to commit a crime. Thus this Court is of opinion that prosecution has failed to prove its case against accused Mohan Ghambir beyond reasonable doubts, therefore he is entitled for benefit of doubt.
74 In view of above discussion this court is of opinion that prosecution has proved its case beyond reasonable doubts against accused Manoj Ghambir, Desh Deepak, Bharat Kumar, Jagdish Chander Upadhaya and Devender Upadhaya for the commission of offence U/s 120B, 420, 467, 471 477A IPC r/w Section 13 (1) (d) r/w Sec. 13 (2) of P C Act, 1988. Prosecution has also proved its case beyond reasonable doubts against accused Manoj Ghambir and Desh Deepak for the substantive offence punishable U/s 420, 467, 471 IPC r/w Section 13 (1) (d) r/w Sec. 13 (2) of P C Act, 1988.
75 In view of above discussion accused Mohan Ghambir is entitled for benefit of doubt, hence acquitted.
76 Ordered accordingly.
Announced: (V K MAHESHWARI ) Dt. 31.1.2011 SPECIAL JUDGE: DELHI CC No.37/01 66/66 67 IN THE COURT OF SH. V K MAHESHWARI :SPECIAL JUDGE; TIS HAZARI: DELHI Complaint Case No.37/2001 CBI Vs Manoj Ghambir & Ors. ORDER ON SENTENCE:
Vide my detailed judgment dated 31.1.2011. I hold guilty Manoj Ghambir, Desh Deepak, Bharat Kumar, Jagdish Chander Upadhaya and Devender Upadhaya for the commission of offence U/s 120B, 420, 467, 471 477A IPC r/w Section 13 (1) (d) r/w Sec. 13 (2) of P C Act, 1988. Manoj Ghambir and Desh Deepak were also convicted for the substantive offence punishable U/s 420, 467, 471 IPC Section 13 (1) (d) r/w Sec. 13 (2) of P C Act, 1988.
Arguments on sentence heard. It is argued on behalf of conivct Manoj Kumar that he was dismissed from the services of Insurance CC No.37/01 67/66 68 company . He is the only earning member of his family consisting of his old aged ailing parents, his wife and one school going girl of 10 years old. He has paid entire money to Oriental Insurance Company, hence lenient view may be taken against him.
It is argued on behalf of convict Desh Deepak that he is facing this trial for the last 10 years . He is only earning members of his family, consisting of his wife, two school going children . He has to look after his old aged mother and his younger brother. He is not a previous convict, hence a lenient view may be taken against him.
It is argued on behalf of convict Devender Prasad Upadhyaya that due to long trial of six year, he has suffered a lot . He is only earning members of his family, consisting of his wife, two school going children . He has to look after his old aged mother who is patient of blood pressure . He is not a previous convict, hence a lenient view may be taken against him.
It is argued on behalf of convict Jagdish Chand CC No.37/01 68/66 69 Upadhyaya that he has suffered a lot due to long trial of six years . He is only earning members of his family, consisting of his wife, two minor children . He has to look after his old aged, ailing parents . He is not a previous convict, hence a lenient view may be taken against him.
It is argued on behalf of convict Bharat Chanana that due to long trial of six years he has suffered a lot . He is only earning members of his family, consisting of his wife, one minor daughter . He is not a previous convict, hence a lenient view may be taken against him.
It is argued by Ld Senior PP for CBI that no leniency be shown to convicts in awarding the sentence as it will be
undesirable and will also be against public interest. Accused Manoj Ghambir and Desh Deepak are public servant. He has argued that convicts are involved in a serious economic offence. They should be awarded severe punishment and heavy fine may also be imposed on them. It is argued that convict Manoj Ghambir is habitual in indulging such type of offences . He is CC No.37/01 69/66 70 involved in another such case which is pending in this Court titled CBI Vs Anju Dhanda & Ors RC: 64(A)/99 ACB.
It is further submitted by Ld Senior PP that in criminal appeal No. 299 of 1997, titled State Rajasthan Vs Dhool Singh, Hon'ble Supreme Court, on December 18th , 2003 has held that "the Courts should bear in mind that there is a requirement in law that every conviction should be followed by an appropriate sentence within the period stipulated in law. Discretion in this regard is no absolute or whimsical. It is controlled by law and to some extent by judicial discretion applicable to the facts of the case. Therefore, there is need for the Courts to apply its mind, while imposing sentence , as to why it should be less then maximum sentence prescribed under law."
Convicts be awarded consecutive sentence.
Corruption is a scourge that not only severally affects progress and development in the society but also poses a grave challenge to governance itself. The United Nations Global Reports on Crime and Justice quotes public opinion surveys in a number of countries, to point out that citizenry in those countries ranks corruption as one among the five most important problems facing their society. More importantly, the public in such CC No.37/01 70/66 71 countries seriously questions the ability of the Criminal Justice Administration to provide any bulwark against corruption. The consequence of such perceptions is a growing public cynicism and distrust in almost all the Government institutions, which is a matter of serious concern. Unfortunately, India ranks prominently high in the list of countries plagued by corruption. Anti Corruption measures in India are perceived by the people to be weak and ineffective. More than corruption itself , it is the widespread public perception that corruption is not or would not be punished, that is detrimental to the society.
I have carefully considered all the arguments raised before me and have gone through the record. After considering all the facts and circumstances of this case, and arguments raised in the Court and the fact that entire amount has been paid and all the Convicts are not the previous convict , I considered it proper to award One year RI along with a fine of 10,000/ ( Ten Thousand) each I D three months S I U/s 120B, 420, 467, 471 477A IPC r/w Section 13 (1) (d) r/w Sec. 13 (2) of P C Act, 1988 to all the convicts.
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Convict Manoj Ghambir and Desh Deepak each are sentenced to undergo Three years RI along with fine of Rs. 10,000/ ( Ten Thousand) I D three months S I for the substantive offence punishable U/s 420 IPC.
They are also sentenced to undergo Three years RI each along with fine of Rs. 10,000/ ( Ten Thousand) I D three months S I for the substantive offence punishable U/s 467/ 471 IPC They are further sentenced to undergo Three years RI each along with fine of Rs. 10,000/ (Ten Thousand) I D three months S I for the substantive offence punishable U/s Section 13 (1) (d) r/w Sec. 13 (2) of P C Act, 1988 .
All the sentences will run concurrently. A copy of judgment and this order on sentence be given to both the accused free of costs. Benefit of Section 428 Cr P C is given to both the accused. Ordered accordingly. File be consigned to RR.
ANNOUNCED IN OPEN COURT (V K MAHESHWARI) TODAY ON 7.2.2011 SPECIAL JUDGE: DELHI CC No.37/01 72/66 73 CC No.37/01 73/66