Delhi District Court
Cbi vs (1)E. Krishnamoorthy on 12 October, 2011
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &
ADDL. SESSIONS JUDGE, I/C (EAST) cum SPECIAL JUDGE
(CBI), KARKARDOOMA COURTS, DELHI.
AC No.10/2005
Unique Case ID No.02402R0665782005
FIR No.RC 18(A)/2003
U/s 120B IPC r/w Sec. 420, 467, 468, 471
& Sec. 13(1)(d) r/w 13(2) of P.C. Act.
CBI Versus (1)E. Krishnamoorthy
S/o Late Sh. Lakshmirarayna
R/o C28, Arya Nagar Apartment,
Plot No.91, I.P. Extn., Delhi92.
(2)Shyam Singh
S/o Sh. Kali Ram
R/o Challera Village, Sadarpur Colony
Gali No.22, Sec45, Noida (UP)
(3)Dal Chand Garg
S/o Sh. Ram Narayan Garg
R/o 721, Sec18, Faridabad,
Haryana.
AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 1 of 51
(4)Narender Singh Gulia
S/o Sh. Amar Singh
R/o H.No.545, Sec16, Faridabad,
Haryana.
(Discharged vide order dated 30.1.2008)
(5)Jitender Gupta S/o Sh. K.C. Gupta
R/o 41, Ashirwad Apartment,
Plot No.74, I.P. Extn., Delhi92.
Date of Institution : 16.12.2005
Date of judgment reserved : 27.09.2011
Date of judgment : 07.10.2011
JUDGMENT
Five accused persons, namely, E. Krishnamoorthy, Shyam Singh, Dal Chand Garg, Narender Singh Gulia and Jitender Gupta have been sent to face trial by the Anti Corruption Branch of the CBI, for the offences punishable under Section 120B IPC r/w Sec. 420, 467, 468, 471 & Sec. 13(1)(d) r/w 13(2) of P.C. Act, 1988. 2 At the time of commission of the offence, accused E. Krishnamoorthy was posted as Branch Manager of Andhra Bank, Vishwas Nagar Branch, Delhi.
3 Briefly stating, the facts of the present case are that the FIR, Ex.PW24/A of the present case was registered against AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 2 of 51 accused persons on the basis of a written complaint dated 17.2.2003, Ex.PW11/A made by Shri A.V. Satyanarayana Murthy (PW11), the then Zonal Manager of Andhra Bank to the CBI to the effect that accused E. Krishnamoorthy during the period May 2000 to December 2000, sanctioned credit facility to accused Shyam Singh, Proprietor of M/s Radhey Manufacturing Company who cheated the Bank to the tune of Rs.17.92 lacs. It was alleged that accused E. Krishnamoorthy sanctioned and disbursed credit facility without making presanction verifications/inquiries and without verifying the collateral securities and thus caused wrongful loss to the bank and corresponding gain to themselves. It was also alleged that M/s Radhey Manufacturing Company was sanctioned a term loan of Rs.24.37 lacs on 5.10.2000 to purchase zip making machinery and generator set worth Rs.32.71 lacs, however bank released only Rs.20.28 lacs. The quotations for machinery were obtained from M/s Unimech Technocraft but no such company was in existence. It was also alleged that borrower offered a plot No.B178, Indra Park Colony, Najafgarh Road, Delhi in the name of Smt. Sharda Nijhawan valued for Rs.25.50 lacs but during verification, it was found that property was under dispute and on verification of records with SubRegistrar's office, mortgaged title AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 3 of 51 deeds were found fake. Party also offered another plot at 208 Block, situated at Village Sultanpur Majra, Sham Park, Delhi. Purchase value of said property was Rs.50,000/, however valuation was obtained for Rs.45 lacs.
4 On 3.10.2000, accused Shyam Singh, Proprietor of M/s Radhey Manufacturing Company moved application Ex.PW18/A for grant of credit facilities with Andhra Bank, Vishwas Nagar Branch where accused E. Krishnamoorthy was posted as Branch Manager. A current account No.2989 in the name of M/s Radhey Manufacturing Company was opened in the bank. He submitted bio data Ex.PW18/A1 along with the application form and particulars of machinery etc. Ex.PW18/A2. Accused Shyam Singh also submitted project report along with annexures Ex.PW18/A3. He also submitted property statement Ex.PW18/A4. The site of accused Shyam Singh was visited and the collateral property in the name of Smt. Sharda Nijhawan was valued at Rs.25 lacs vide presanction/disbursement report dated 25.9.2000, Ex.PW18/B. An office note dated 4.10.2000, Ex.PW18/C was prepared by Sh. Ripu Daman Mehta (PW18). He stated that the said note was prepared by accused E. Krishnamoorthy vide which he sanctioned term loan of Rs.24.37 lacs to accused AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 4 of 51 Shyam Singh. Thereafter, sanction letter dated 5.10.2000 Ex.PW18/D was issued by accused E. Krishnamoorthy. After sanction of loan, same was disbursed to accused Shyam Singh vide debit vouchers Ex.PW18/E1 and Ex.PW18/E2 for a sum of Rs. 7,50,000/ and Rs.12,78,000/ respectively. Thereafter, pay orders Ex.PW18/E3 and Ex.PW18/E4 amounting to Rs.12,78,000/ and Rs. 10,00,000/ respectively were issued in the name of M/s Unimach Technocrafts of which accused Dal Chand Garg was the proprietor. The said debit vouchers and pay orders Ex.PW18/E1 to Ex.PW18/E4 were taken into possession by Investigating Officer vide seizure memo Ex.PW18/J. A sum of Rs.2,50,000/ was debited to the current account no.2989 of accused Shyam Singh which is reflected in statement Ex.PW18/F. Vide receipt memo Ex.PW18/G, Sh. Ripu Daman Mehta (PW18) handed over sanction letter Ex.PW18/D, hypothecation agreement movable machinery Ex.PW18/G1, term loan agreement Ex.PW18/G2, agreement for security for advances & loans Ex.PW18/G3 and Bank's rights Ex.PW18/G4 to CBI. 5 Inspection of the firm of accused Shyam Singh was made on 22.11.2000 by accused E. Krishnamoorthy along with another official of the bank and Inspection Report Ex.PW18/H1 was AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 5 of 51 prepared. As per this report, the conduct of the account was not satisfactory, borrower i.e. accused Shyam Singh was not available, invoice/bills were not available, power was not sanctioned and machinery was not installed. The said inspection report was seized vide seizure memo Ex.PW18/H. Vide receipt memo Ex.PW18/A Investigating Officer seized the offer of security Ex.PW18/K1 for plot no.B178, Indra Park Colony, Najafgarh, Delhi, letter of deposit of its title deed Ex.PW18/K2, original title deed dated 16.8.1971 Ex.PW8/A, affidavit of Smt. Sharda Nijhawan Ex.PW18/K3, letter of offer of security by Sant Ram Ex.PW18/K4 for plot no.208, Khasra No.549, Village Sultanpur Majra, Shyam Park, Nangloi, letter of deposit of its title deed Ex.PW18/K5, sale deed dated 22.2.1972 Ex.PW8/C, affidavit of Sant Ram Ex.PW18/K6 and general form of guarantee Ex.PW18/K7. Debit vouchers Ex.PW18/L1 to L4 in the name of firm of accused Shyam Singh were seized vide seizure memo Ex.PW18/L. 6 Sh. Ripu Daman Mehta provided details of Sh.
Rakesh Mohan Singhal (PW3) and his specimen signature card Ex.PW18/M1 to the Investigating Officer vide letter Ex.PW18/M. Sh. Rakesh Mohan Singhal (PW3) has deposed that accused E. AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 6 of 51 Krishnamoorthy requested him to become introducer of accused Shyam Singh and he put his signatures as introducer on account opening form Ex.PW1/4 of M/s Radhe Manufacturing Company. He deposed that M/s Radhey Manufacturing Company submitted cash receipt dated 6.10.2000 for Rs.12,78,000/ Ex.PW18/N1 and cash receipt dated 3.10.2000 for Rs.4,26,000/ Ex.PW18/N2, issued by Unimach Tecnocrafts.
7 The firm of accused Shyam Singh was inspected by Sh. Madan Mohan Tyagi, Sr. Manager of Bank on 16.10.2001 and he found that the unit was lying abandoned and no machinery was installed there. He informed the bank vide letter dated 24.10.2001 Ex.PW1/1. This witness vide letter Ex.PW1/2 gave to Investigating Officer current account opening form no.2989 along with annexures Ex.PW1/4 to Ex.PW1/7 in the name of firm of accused Shyam Singh, specimen signature card Ex.PW1/3 and statement of account Ex.PW1/8 which were seized vide memo Ex.PW24/D. 8 Sh. A. Murlidhar, Zonal Manager of Bank wrote note dated 24.3.2001 Ex.PW2/1 for obtaining original title deeds of Smt. Sharda Nijhawan and its verification. He also wrote letter dated 24.4.2001 Ex.PW2/2 regarding direction of Audit Committee. Sh. AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 7 of 51 Rakesh Kumar Sinha, Sr. Manager (Law) of Bank vide letter Ex.PW5/A sent the dismissal order dated 11.9.2003 Ex.PW25/A of accused E. Krishnamoorthy passed by Sh. K.G. Srinivasa Rao (PW25), the then Deputy General Manager to the Investigating Officer. Sh. Rakesh Kumar Sinha wrote letter Ex.PW5/B for verification of documents of firm of accused Shyam Singh and sought legal opinion vide letter Ex.PW5/C. 9 Sh. Anil Srivastava (PW6) gave his titled search opinion Ex.PW6/A with regard to plot no.208, khasra no.549, Village Sultanpur Majra, Shyam Park, near Nangloi Railway Station. 10 During investigation, Investigating Officer (PW26) sent a notice Ex.PW26/A to Unimach Technocrafts, firm of accused Dal Chand Garg. The postman Sh.Surender Sharma (PW7) went to deliver the said notice and gave his report Ex.PW7/A that no such address was in existence. Investigating Officer (PW24) wrote letters Ex.PW24/B1 and Ex.PW24/B2 to the SubRegistrar with regard to genuineness of the sale deeds Ex.PW8/B and Ex.PW8/D of the properties of Najafgarh and Sultan Pur Majra. Sh. Anil Ghildiyal(PW8) the then SubRegistrar after comparing the attested copies of sale deeds Ex.PW8/B and Ex.PW8/D with their originals AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 8 of 51 Ex.PW8/A and Ex.PW8/C stated that there were discrepancies in the signatures of Executants/witnesses and SubRegistrar. Accused E. Krishnamurthy wrote letter Ex.PW9/A to Sh. A.N.Tiwari(PW9) seeking legal opinion of the property of Smt. Sharda Nijawan, who gave his opinion Ex.PW9/B which was forwarded vide forwarding letter Ex.PW9/C. He raised bill Ex.PW9/D and gave said documents to Investigating Officer which were seized vide memo Ex.PW9/E. 11 During investigation, CBI requested for valuation of plot No. B178, Khasra No. 168, Indira park Colony, Najafgarh Road, Masoodabad, New Delhi vide letter dated 16.06.2005 Ex.PW26/B which was valued by Sh. Uday Singh (PW12) vide valuation report Ex.PW12/A. He valued the said property at Rs.7,27,200/and sent his report to CBI vide covering letter Ex.PW12/B. 12 Sh. Suresh Chandra Gupta Assistant Manager of Central Bank of India, Nehru Place submitted specimen card Ex.PW13/A, Account Opening Form Ex.PW13/B and Statement of Accounts Ex.PW13/C of account No. 11778 in the name of firm of accused Dal Chand Garg to CBI vide letter Ex.PW14/E. During investigation, it was revealed that transactions were made through account of the said firm. Vide letters Ex.PW14/A to Ex.PW14/C, AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 9 of 51 cheques Ex.PW14/C1 to C9 and payin slips Ex.PW14/D1 and Ex.PW14/D2 were sent to Investigating Officer(PW24). Vide seizure memo Ex.PW17/A, the file of the firm of accused Shyam Singh was seized. Sh.R.C.Meena, Tehsildar, MCD has stated that he handed over attested copy of Sajra plan Ex.PW20/A and award Ex.PW20/B to Investigating Officer with regard to property bearing Khasra No. 549 village Sultan Pur Majra, Delhi which were seized Ex.PW20/C. 13 During investigation, a notice was issued in the name of Smt. Sharda Nijhawan which was taken to her residential address by Ct. Ashish(PW21) who submitted his report Ex.PW21/A that no such person was residing at the said address. Documents Ex.PW24/C1 with regard to property of Najafgarh were seized vide seizure memo Ex.PW24/C from Vijay Kumar(PW4).
14 The specimen signatures and writings of accused Shyam Singh and Dal Chand Garg were taken on sheets Ex.PW15/A and Ex.PW15/B respectively in the presence of witness Gulshan Lal Minocha(PW15) whereas specimen signatures and writing of accused Jitender Gupta on sheets Ex.PW16/A and P19/A1 to A11 were taken in the presence of witness S.P.Saraswat (PW16) and AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 10 of 51 Mukhram(PW19). During investigation, letters Ex.PW26/C and Ex.PW26/E were sent to GEQD, Shimla for obtaining opinion with regard to signatures/ writings and reports Ex.PW26/D and Ex.PW26/F were submitted.
15 Accused Jitender Gupta valued the property of Sultanpur Majra at Rs.25,50,000/ vide report Ex.PW26/H and submitted his bill Ex.PW26/E. Proforma for giving opinion for scrutiny of title is Ex.PW26/J. 16 After completion of the investigation, the challan was put up in the court where accused persons were supplied with the copies of the chargesheet and the documents of the CBI. 17 During the pendency of trial, accused Narender Singh Gulia was discharged by my Ld. Predecessor vide order dated 30.1.2008.
18 The charge under Section 120B r/w 420, 467, 468, 471 IPC and 13(1)(d) of P.C. Act was framed against accused E. Krishnamoorty, Shyam Singh, Dal Chand Garg and Jitendra Gupta. Separate charge under Section 13(2) read with 13(1)(d) of P.C. Act was framed against accused E. Krishnamoorty. Separate charge for offence punishable under Section 420/471 r/w Sec. 467/468 IPC was AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 11 of 51 also framed against accused Shyam Singh. Accused persons pleaded not guilty to the charges framed against them and claimed trial. 19 The prosecution has examined 26 witnesses in support of its case. Out of those witnesses, PW11 Sh. A.V. Satyanarayana Murthy is the complainant. PW1 Sh. Madan Mohan Tyagi, PW2 Sh. A. Murlidhar, PW5 Sh. Rakesh Kumar Sinha, PW17 Sh. Raj Kumar Khera, PW18 Sh. Ripu Daman Mehta and PW22 Sh. Vinay Mohan Kane are the witnesses of Andhra Bank in which accused E. Krishnamoorthy was posted. PW25 Sh. K.G. Srinivasa Rao passed the dismissal order of accused E. Krishnamoorthy. PW3 Sh. Rakesh Mohan Singh is the introducer of account opened in the name of firm of accused Shyam Singh. PW10 Sh. Chand Ram deposed that he purchased plot no.B178, Indira Park Colony, Najafgarh from Smt. Sharda Nijhawan and sold it to PW4 Vijay Kumar. PW4 deposed that he was owner of the said plot during the period 2000 to 2005. PW6 Sh. Anil Srivastava and PW9 Sh. A.N. Tiwari are the empaneled Advocates with Andhra Bank. PW13 Sh. Suresh Chand Gupta and PW14 Sh. S.N. Tiwari are the officers of Central Bank of India, Nehru Place where the account in the name of firm of accused Dal Chand Garg was maintained. PW7 Sh. Surender AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 12 of 51 Sharma was the postman who took notice in the name of firm of accused Dal Chand Garg. PW8 Sh. Anil Ghildiyal was the Sub Registrar whereas PW20 Sh. R.C. Meena was Tehsildar. PW15 Sh. Gulshan Lal Minocha, PW16 Sh. S.P. Saraswat and PW19 Sh. Mukh Ram are the independent witnesses in whose presence specimen signatures and writings of accused Shyam Singh, Dal Chand Garg and Jitender Gupta were taken. PW21 Ct. Ashish visited the residential address of Smt. Sharda Nijhawan and submitted his report. PW12 Sh. Udai Singh valued the property of Najafgarh. PW24 Sh. S. Balasubramony and PW26 Sh. A. Sathiamoorthy are the Investigating Officers of the case.
20 Statements of accused persons have been recorded under Section 313 Cr.PC. The accused persons have denied the entire case of prosecution and claimed that they are innocent and have falsely been implicated in the present case. Accused persons opted to lead evidence in their defence. Accused Jitender Gupta examined defence witness Sh. Deepak Jain (DW1) whereas accused Dal Chand Garg examined himself as DW2.
21 I have heard Shri S. Krishna Kumar, learned PP for the CBI as well as Ld. Counsels for accused persons. I have also AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 13 of 51 carefully gone through their submissions and the material available on record.
Criminal conspiracy 22 It is a settled law that conspiracies are hatched in the pitch dark secrecy and direct evidence of those are hardly available. In this respect, the Hon'ble Supreme Court has observed in the case titled K.R.Purushothaman vs. State of Kerala, AIR 2006 SC 35 that to constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by an illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every details of the conspiracy. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. The criminal conspiracy is an independent offence in Indian Penal Code. The unlawful agreement is sine qua non for constituting offence under Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two of more persons which may be express or implied or AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 14 of 51 partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of the agreement. 23 In another case titled Shivnarayan Laxminarayan Joshi Versus State of Maharashtra (reported in 1980 SCC (Cri.)493), the Hon'ble Supreme has observed that it is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same.
24 To prove the conspiracy between accused persons, prosecution has examined Sh. A.V. Satyanarayana Murthy (PW11) who deposed that during year 2003, he was working as Zonal Manager in Andhra Bank and he was Incharge of all banking activities of Delhi. In the present case, complaint was that accused E. Krishnamurthy sanctioned loan to some party but documents submitted as collateral security were not genuine. Verification of collateral security was to be done by accused E. Krishnamurthy. Since collateral security was in dispute and property documents were not genuine, bank could not recover the loan amount. During an inquiry, it was found that supplier of the machinery was not existing. At the time of disbursement of loan, accused E.Krishnamurthy ought AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 15 of 51 to have verified this aspect of the matter. He has clarified the procedure for sanction of loans by saying that whatever documents were submitted, same are legally scrutinized through Experts and then properties are to be physically verified. Accused E.Krishnamurthy had not followed the written guidelines issued by bank regarding disbursement of loan. He made complaint dated 17.02.2003 Ex.PW11/A to the CBI.
25 For applying credit facility, accused Shyam Singh moved application Ex.PW18/A for manufacture of zips. He also submitted project report Ex.PW18/A3. He mentioned that total cost of plant and machine was Rs.30,05,600/.
26 The current account no.2989 in the name of firm of accused Shyam Singh was opened vide application Ex.PW1/4. It is alleged against accused E. krishnamurthy that he entered into a conspiracy with accused Shyam Singh in getting said account opened. Perusal of account opening form Ex.PW1/4 shows that introducer of accused Shyam Singh was one Rakesh Mohan, proprietor of Shiva Electricals.
27 Witness Rakesh Mohan Singhal (PW3) deposed that in the year 2000, he was running an electrical shop at Viswas Nagar, AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 16 of 51 Delhi which was adjacent to Andhra Bank. He was supplying electricity through generator to Andhra Bank since 1986 and was getting payment in his account maintained with said branch. He further deposed that accused E.Krishnamurthy was Branch Manager during the year 2000. After going through account opening form Ex.PW1/4 in the name of accused Shyam Singh, this witness stated that he put his signatures along with seal of his firm at the request of accused E.Krishnamurthy as he had requested him to be the introducer. But he did not know the person whose photo was affixed on Ex.PW1/4. During crossexamination, he (PW3) stated that he was having account in the bank and when accused E. Krishnamurthy asked him to introduce the account holder, he did so. He further stated that Shyam Singh was not known to him and he had introduced him merely on the asking of accused (E. Krishnamurthy). 28 From the statement of witness Rakesh Mohan Singhal (PW3), it is clear that he introduced accused Shyam Singh to open account in the bank at the instance of accused E. Krishnamurthy where he was posted as Branch Manager. He has specifically stated that he did not know accused Shyam Singh, rather he introduced him to get opened bank account only on the asking of accused E. AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 17 of 51 Krishnamurthy. This shows that there was criminal conspiracy between accused E. Krishnamurthy and accused Shyam Singh. 29 Another important witness in the present case is Sh. Vinay Mohan Kane (PW22) who deposed that during the year 2000, he was posted as Assistant Manager in Vishwas Nagar Branch of Andhra Bank. He was incharge of opening of current account. He deposed that whenever an applicant approaches bank for opening current account, he fills up form, attaches all documents and signs in front of him. The introducer to the account also signs in front of him. Then the application form along with applicant used to be sent to Branch Manager for opening the account. The concerned clerk then opens the account and thereafter he used to authorizes to open the account by making entry in computer. He further deposed that he used to sign at two places in the column meant for 'Officer' before application used to be sent to Branch Manager. Account opening form Ex.PW1/4 and specimen card Ex.PW1/3 of current account no. 2989 in the name of firm of accused Shyam Singh were shown to this witness and after going through the same he stated that it did not bear his signature in the columns meant to be signed by the 'Officer'. He further deposed that the said account was not opened through him. AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 18 of 51 He categorically deposed that accused E. Krishnamoorthy directly permitted the opening of this account by putting his signatures in the column meant for Branch Manager. He further stated that nobody verified the signatures of applicant.
30 From the statement of witness (PW22), it is clear that the procedure prevalent in the bank for opening current account at that time was that firstly the applicant and the introducer have to approach him and to sign in his presence and then the form used to be sent to Branch Manager. He categorically stated that the form Ex.PW1/4 with regard to opening of current account in the name of firm of accused Shyam Singh does not bear his signature, meaning thereby the said account was not opened through him. The perusal of account opening form Ex.PW1/4 shows that the column of "Officer" is lying blank. There is no verification of the signature of the applicant and of the introducer as well. This form only bears the signature of accused E. Krishnamurthy as Branch Manager who authorized accused Shyam Singh to open current account. Witness (PW22) has also specifically stated that the said account was directly opened by accused E. Krishnamurthy. So, from the statement of PW22, it is evident that accused E. Krishnamurthy criminally AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 19 of 51 conspired with his coaccused Shyam Singh in getting opened current account in the name of his firm. Accused E. Krishnamurthy had gone to the extent of bypassing the procedure in the bank by himself allowing accused Shyam Singh to open current account in the bank and that is too, without verifying his signatures as well as signatures of introducer.
31 To establish the criminal conspiracy between accused Shyam Singh and accused Dal Chand Garg, it is pertinent to mention that at the time of submitting application Ex.PW18/A by accused Shyam Singh for grant of credit facility, he submitted project report Ex.PW18/A3. One of the annexures of said project report is letter dated 3.10.2000 written by accused Dal Chand Garg being proprietor of Unimach Technocrafts in which he had submitted his proposal to the firm of accused Shyam Singh for running zipper plant. Accused Shyam Singh made this proposal of accused Dal Chand Garg the basis of his project report submitted before the bank for availing credit facility. It is not in dispute that accused Dal Chand Garg is the proprietor of Unimach Technocrafts.
32 Unimach Technocrafts was having its current account No.11778 in Central Bank of India, Nehru Place which was opened AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 20 of 51 vide form Ex.PW13/B and specimen card is Ex.PW13/A. Statement of account Ex.PW13/C of the said current of accused Dal Chand Garg shows transaction between him and accused Shyam Singh. 33 It is a matter of record that a sum of Rs.12.78 lacs and Rs.7.50 lacs were deposited in the account of firm of accused Shyam Singh which is apparent from statement of account Ex.PW1/8. It is case of the prosecution that vide debit vouchers Ex.PW18/E1 and Ex.PW18/E2, aforesaid amounts were credited to the account of firm of accused Shyam Singh. Statement of account Ex.PW1/8 also shows that said amount was also paid to the firm of accused Dal Chand Garg from the account of accused Shyam Singh. Cash receipts Ex.PW18/N1 and N2 submitted by accused Shyam Singh to Andhra Bank for a sum of Rs.12,78,000/ and Rs.4,26,000/ respectively also show that firm of accused Dal Chand Garg received the said amount from the firm of accused Shyam Singh.
34 The statement of account Ex.PW13/C of the firm of accused Dal Chand Garg also shows that payments were received from said account by accused Shyam Singh. Cheques Ex.PW14/C1 to C3 and Ex.PW14/C5, C7 issued by accused Dal Chand Garg also show that either they were issued in favour of accused Shyam AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 21 of 51 Singh or he withdrew the money in cash as accused Dal Chand Garg had issued some of cheques in "self name".
35 The notice Ex.PW26/A issued to the firm of accused Dal Chand Garg was received back with the report Ex.PW7/A that no such address was existing. Inspection report Ex.PW18/H1 shows that the firm of accused Shyam Singh was inspected by official of the bank along with accused E.Krishnamurthy. In this report, it is mentioned that conduct of the account was not satisfactory, borrower was not available, invoices/bills were not available, power was not sanctioned and machinery was not installed at the site. It shows that no manufacture unit was functioning at the said site of accused Shyam Singh and despite nonexistence thereof, accused E. Krishnamurthy passed sanctioned order Ex.PW18/D. All this goes to prove that accused E. Krishnamurthy, Shyam Singh and Dal Chand Garg entered into criminal conspiracy with each other with a view to cheat the bank by submitting forged and fabricated documents. 36 It is a matter of record that while availing credit facility, accused Shyam Singh mortgaged two properties bearing plot No.208, Khasra No.549, Village Sultanpur Majra, Delhi and plot No.B178, Indira Park Colony, Najafgarh Road, Masoodabad, Delhi AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 22 of 51 with the bank. It is alleged against accused Jitender Gupta that he had not valued the said properties properly. His valuation reports Ex.PW26/H show that property of Sultanpur Majra was worth Rs. 10,74,000/ whereas property of Masoodabad was worth Rs. 25,50,000/.
37 However, witness Vijay Kumar (PW4) stated that during the period 2000 to 2005, he was owner of property of Masoodabad and he sold the same in the year 2005 meaning thereby that the said property was never in the name of Smt. Sharda Nijahwan which was mortgaged with the bank. The said property was valued by Sh. Udai Singh (PW12) Valuation Officer on the asking of CBI. He submitted his valuation report Ex.PW12/A vide which he opined that fair market value of the said property was Rs.7,27,2000/. Witness R.C. Meena (PW20), Tehsildar, Slum and JJ Department, MCD has deposed that Khasra No.549, Village Sultan Pur Majra, Delhi was transferred from DDA to MCD and the possession proceedings completed in the year 1982 vide documents Ex.PW20/A and Ex.PW20/B. 38 In view of statement of PW12 Udai Singh and PW20 R.C. Meena, it has been established that accused Jitender Gupta AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 23 of 51 deliberately overvalued the both the abovementioned properties vide his report Ex.PW26/H. Rather, it has been established that property of Sultanpur Majra had already been acquired by the Government in the year 1982 and that property of Masoodabad was worth Rs. 7,27,200/. It is apparent from the record that accused Jitender Gupta submitted his report to accused E. Krishnamurthy who made this report the basis for disbursement of credit facility to accused Shyam Singh. The opinion of the GEQD, Shimla vide reports Ex.PW26/D and Ex.PW26/F also establishes the case of prosecution that forgery in the documents was committed by accused persons. 39 It has been argued by Ld. Counsel for accused Jitender Gupta and Dal Chand Garg that prosecution has miserably failed to establish the conspiracy between accused persons. In support of his arguments, he has relied upon judgment in case titled K.R. Purushothaman vs. State of Kerala 2005(3) J.C.C. 1847 in which it has been held that mere knowledge, even discussion of a plan would not per se constitute conspiracy. There is no dispute so far as legal proposition propounded in this authority is concerned. However, the fact remains that there is cogent and convincing evidence of conspiracy among the accused persons and acts done by AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 24 of 51 them in pursuance thereto. Therefore, authority relied upon by Ld. Counsel for the accused persons is not attracted to the facts of the present case.
40 Keeping in view the above evidence, prosecution has successfully established that there was criminal conspiracy amongst all the accused persons and common object of which was to cheat the bank. It has been established that accused Jitender Gupta in pursuance to criminal conspiracy submitted valuation reports which were made basis for disbursement of credit facility to accused Shyam Singh. It has also been established that accused Shyam Singh criminally conspired with accused Dal Chand Garg and submitted false project report showing accused Dal Chand Garg as supplier of machinery whereas it has come on record that firm of accused Dal Chand Garg was not in existence at the given address. Accused Shyam Singh submitted false and fabricated documents in the form of fake sale deeds of properties mortgaged with bank and thus became successfully in availing loan/credit facility. It has also been proved that accused E. Krishnamurthy being Branch Manager was duty bound to verify the genuineness of collateral security but instead of doing so, he in conspiracy with his coaccused persons overlooked AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 25 of 51 the same and sanctioned/disbursed loan/credit facility to the firm of accused Shyam Singh. Therefore, I am of the considered opinion that all the accused persons criminally conspired with each other to avail credit facility by submitting forged and fabricated documents and using them as genuine and thus cheated the bank by causing pecuniary loss to the bank to the tune of Rs.24.37 lacs. 41 Consequently, accused E. Krishnamurthy, Shyam Singh, Dal Chand Garg and Jitender Gupta are hereby held guilty for commission of offences punishable under Section 120B IPC read with Sections 420/467/468/471 IPC and under Section 13(1)(d) of P.C. Act, 1988.
Forgery & Cheating 42 Accused Shyam Singh, proprietor of M/s Radhey Manufacturing Company has also been charged for committing forgery on the documents for obtaining loan/credit facility from the bank with a view to cheat the bank. Case of the prosecution is that accused Shyam Singh committed forgery by fabricating sale deeds which stood as collateral security with the bank and used the same as genuine to cheat the bank. It is also case of the prosecution that he submitted project report along with his application form mentioning AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 26 of 51 therein that he had to set up zip fastener plant at his premises and the supplier of machinery was shown to be Unimach Technocrafts. But during investigation, it revealed that no such firm in the name of Unimach Technocrafts existed at the given address and that no machinery was ever supplied to accused Shyam Singh. 43 It is alleged against accused Shyam Singh that he submitted two sale deeds in respect of properties viz. Plot No.B/178, Khasra No.168, Indira Park Colony, Najafgarh Road, Masoodabad, Delhi and Plot No.208, Khasra No.549, Village Sultanpur Majra, Shyam Park, near Nangloi Railway Station, Delhi. Original sale deed of the property of Masoodabad is Ex.PW8/A and that of property of Sultanpur Majra is Ex.PW8/C. To prove forgery of sale deeds submitted by accused Shyam Singh as collateral security for obtaining credit facility, prosecution has examined Sh. Anil Ghildiyal (PW8) the then Sub Registrar, Kashmere Gate, Delhi who deposed that CBI Inspector came to his office and showed him two sale deeds of aforesaid properties Ex.PW8/A and Ex.PW8/C along with their certified copies. Ex.PW8/B and Ex.PW8/D. After comparing both the sale deeds, he deposed that he found discrepancies in the signatures of executants, witnesses and of SubRegistrar in the original sale deeds. AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 27 of 51 44 It proves that in sale deeds Ex.PW8/A and Ex.PW8/C, forgery was committed by accused Shyam while submitting the same with the bank along with his application Ex.PW18/A. It is not in dispute by accused that he submitted both these sale deeds with the bank when he applied for the credit facility. 45 Perusal of sale deeds Ex.PW8/A dated 16.8.1971 and Ex.PW8/C dated 22.2.1972 shows that same were executed in favour of Smt. Sharda Nijhawan and Sh. Sant Ram. Verification of Smt. Sharda Nijhawan was got done by the Investigating Officer through Ct. Ashish (PW21) who submitted his report Ex.PW21/A. In this report, it is mentioned that he visited the residential address of Smt. Sharda Nijhawan i.e. G16/6A, Rajouri Garden, New Delhi. When PW21 visited the said address, he found one Smt. Smitha Kapoor residing therein who informed that she was living at the given address for the past 22 years and that no person in the name of Smt. Sharda Nijhawan ever resided there. So, it has been established that sale deed Ex.PW8/A submitted by accused Shyam Singh showing Smt. Sharda Nijhawan as owner of property of Masoodabad in the year 2000 when it was submitted with the bank, was found to be forged one as it has also been established that forgery in the said deed was AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 28 of 51 done as deposed by SubRegistrar (PW8).
46 Prosecution has also examined Vijay Kumar (PW4) who also deposed that in the year 2000, he along with his fatherin law purchased plot bearing No.B178, Indira Park Colony, Najafgarh Road from one Chand Ram and sold the same in the year 2005. During his cross examination, he stated that he purchased the property on GPA and agreement to sale etc. Sh. Chand Ram (PW10) has also deposed that in the year 2000, he purchased the said property from Sharda Nijhawan and sold the same to Vijay Kumar. After going through sale deed Ex.PW8/A, he deposed that it was a fabricated document as signatures thereon were forged. In his cross examination by Ld. PP for CBI, he admitted that he had not purchased the plot directly from Sharda Nijhawan.
47 From the testimony of Vijay Kumar (PW4) also, it has been established that in the year 2000 when sale deed Ex.PW8/A was submitted by accused Shyam Singh with the bank as collateral security, was also not in possession of Smt. Sharda Nijhawan as mentioned therein. From the testimony of Chand Ram (PW10) also, it is not clear that said property was not in possession of Sharda Nijhawan in the year 2000 and that forgery was committed on sale AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 29 of 51 deed Ex.PW8/A. Even otherwise, sale deed allegedly executed by Smt. Sharda Nijhawan in favour of Chand Ram has not been brought on record so that it could be inferred that she was actually the owner in respect of said property.
48 The second property which stood as collateral security with the bank was plot No.208, Khasra No.549, Village Sultanpur Majra, Shyam Park near Nangloi Railway Station. It is alleged against accused Shyam Singh that he also committed forgery in the sale deed Ex.PW8/C of the said property. After comparing original sale deed Ex.PW8/C with its certified copy Ex.PW8/D, Sub Registrar (PW8) has stated that there were discrepancies in the signatures of executants, witnesses and that of SubRegistrar. 49 Case of accused Shyam Singh was that the said property was in possession of one Sant Ram in the year 2000 when it was submitted to the bank. His case has been falsified by Sh. R.C. Meena, Tehsildar (PW20) who deposed that Khasra No.549, Village Sultanpur Majra, Delhi was transferred from DDA to Slum and JJ Department of MCD. The possession proceedings in favour MCD were completed in the year 1982 and he handed over Sajra Plan and possession proceedings Ex.PW20/A and Ex.PW20/B to the CBI. AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 30 of 51 After going through sale deed Ex.PW8/C, he stated that Shyam Park does not fall under Khasra No.549 Village Sultanpur Majra as whole Khasra No.549 vested with MCD in the year 1982 pursuant to award made in 1981. Ex.PW20/B, award dated 17.11.1981 also establishes the fact that Khasra No.549 of village Sultan Pur Majra was taken into possession by MCD. Therefore, the claim of the accused Shyam Singh that in the year 2000, said property was in possession of one Sant Ram is not borne out of record rather it has been established that forgery in sale deed Ex.PW8/C was committed by accused Shyam Singh.
50 It is also alleged against accused Shyam Singh that he submitted a false project report Ex.PW18/A3 along with his application form Ex.PW18/A. Perusal of application form Ex.PW18/A shows that he applied for credit facility with the bank for manufacture of zips. Along with this application form, he submitted project report Ex.PW18/A3 annexing quotations of machinery etc. to be supplied by the supplier Unimach Technocrafts. 51 Investigating Officer (PW26) sent a notice Ex.PW26/A to Unimach Technocrafts to ascertain genuineness and existence of said firm at the given address. Sh. Surender Sharma AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 31 of 51 (PW7) Postman took said notice to the given address and reported that no such address was in existence which also establishes the case of the prosecution that accused Shyam Singh submitted a false document with the bank with a view to cheat it by availing credit facility/loan.
52 From aforesaid discussion, it has been duly established that accused Shyam Singh committed forgery in sale deeds Ex.PW8/A and Ex.PW8/C and used the same as genuine knowing or having reasons to believe the same to be forged ones. It has also been established that accused Shyam Singh submitted those forged sale deeds along with false project report Ex.PW18/A3 along with his application form Ex.PW18/A with the bank for availing credit facility/loan and managed to obtain the same to the tune of Rs. 24.37 lacs and thus cheated the bank. Reports Ex.PW26/D and Ex.PW26/F also go to prove that forgery in the documents was committed by accused Shyam Singh.
53 Therefore, prosecution has been able to prove its case against accused Shyam Singh under Sections 420/467/468/471 IPC. Criminal misconduct 54 Accused E. Krishnamurthy has also been charged AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 32 of 51 under Section 13(2) read with section 13(1)(d) of P.C. Act. It is alleged against him that while working as Branch Manager of Andhra Bank, he sanctioned credit limit/term loan to his coaccused Shyam Singh without verification of the properties and his claim. 55 Sh. A.V. Satyanarayana Murthy (PW11), the then Zonal Manager of Andhra Bank has deposed about the procedure for sanctioning loan/credit facility. He deposed that for grant of such loans, Branch Manager is supposed to satisfy himself with the marketability of the product, viability of the project, bonafide of the collateral and suppliers of machinery. He deposed that whatever documents are submitted by the customer, same are legally scrutinized through Legal Expert and then physical verification of the properties is done. He deposed that accused E. Krishnamurthy had not followed the guidelines of bank while sanctioning loan/credit facility.
56 The current account in the name of firm of accused Shyam Singh was got opened at the instance of accused E. Krishnamurthy. Sh. Rakesh Mohan Singhal (PW3) has deposed that he became introducer for opening current account in the name of firm of accused Shyam Singh. He further deposed that on account AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 33 of 51 opening form Ex.PW1/4, he put his signatures along with seal of his firm on the request of accused E. Krishnamurthy. But he did not know the person whose photo was affixed on Ex.PW1/4. 57 Ex.PW1/4 is the account opening form of accused Shyam Singh in the name of his firm. It shows that it bears signatures of Rakesh Mohan (PW3) as introducer. PW3 has specifically stated that he put his signatures as introducer only on the asking of accused E. Krishnamurthy.
58 Sh. Vinay Mohan Kane (PW22), Assistant Manager, has deposed that he was Incharge of opening Current Account in the year 2000. He deposed that firstly applicant has to fill up the form, attaches all the documents and signs in front of him. Introducer also signs in front of him. Then application form is sent to the Branch Manager. Thereafter, concerned clerk opens the account and he authorizes the same by making entries in computer. He had to sign it at two places in column meant for "officer". After going through account opening form Ex.PW1/4, he stated that it did not bear his signatures as the same was not opened through him. He categorically stated that accused E. Krishnamurthy directly permitted the opening of said account and nobody verified the signatures of applicant. AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 34 of 51 59 From the testimony of PW3 Rakesh Singhal, it is established that accused being public servant and posted as Branch Manager misused his official position by facilitating his coaccused Shyam Singh in opening his current account. From the testimony of PW22, it has also been established that accused E. Krishnamurthy also bypassed the guidelines of bank by himself opening the current account of his coaccused Shyam Singh. He even did not care to get the applicant as well as introducer verified.
60 It is apparent from the record that while availing term loan/credit facility, accused Shyam Singh got properties at Masoodabad and Sultanpur Majra mortgaged with the bank. As per testimony of PW11, accused E.Krishnamurthy was required to physically verify the properties which he did not do in the present case.
61 Presanction/disbursement inspection report Ex.PW 18/B shows that it was prepared by accused E.Krishnamurthy in which it is mentioned that firm of accused Shyam Singh is manufacturing zippers and electricity connection was available at the site. Vide office note Ex.PW18/C, accused E. Krishnamurthy sanctioned the term loan of Rs.24.37 lacs in favour of firm of his co AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 35 of 51 accused Shyam Singh. Accused E. Krishnamurthy also issued sanction letter Ex.PW18/D sanctioning credit limit to the tune of Rs. 24.37 lacs. Debit vouchers Ex.PW18/E1 and Ex.PW18/E2 and pay orders Ex.PW18/E3 and E4 show that said amount was disbursed to the supplier Unimach Technocrafts. But as discussed above, no such firm was in existence on the given address as per report Ex.PW7/A. 62 Inspection report for the year 20002001 Ex.PW 18/H1 shows misconduct committed by accused E. Krishnamurthy. This report was with regard to inspection of firm of accused Shyam Singh. It is mentioned therein that conduct of account was not satisfactory. Accused E. Krishnamurthy along with another official of the bank visited the site of M/s Radhey Manufacturing Company and found that borrower was not available, invoices/bills were not available, power was not sanctioned and machineries were not installed. It establishes the case of the prosecution that no manufacturing activity was going on at the firm of accused Shyam Singh and it has been falsely mentioned by accused E. Krishnamurthy in presanction/disbursement inspection report Ex.PW18/B that manufacturing of zippers was being done there. Even as per report Ex.PW18/H1, no machinery was installed there. AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 36 of 51 63 Consequently, it has been duly established by the prosecution that accused E. Krishnamurthy being public servant and while posted as Branch Manager of Andhra Bank sanctioned a term loan/credit facility to the tune of Rs.24.37 lacs in favour of firm of his coaccused Shyam Singh without verifying his claim and properties mortgaged and thus he abused his official position by causing pecuniary loss to the bank and corresponding wrongful gain to his co accused Shyam Singh.
64 Therefore, accused E. Krishnamurthy is held guilty under Section 13(2) read with Section 13(1)(d) of the P.C.Act. Defence 65 Defence taken by accused Dal Chand Garg is that address was incorrect at which notice was sent to his firm Unimach Technocrafts. It has been submitted that discharged accused N.S. Gulia approached him and asked him to give a few cheques. He told him that he had no money in the account on which N.S. Gulia said that he would arrange money by getting deposited in his account and oblige some party from which he would earn commission out of which he promised to pay some money to him as well. Believing N.S. Gulia, he gave blank undated signed cheques which were AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 37 of 51 misused by him. Same facts have been deposed by accused Dal Chand Garg while entering into witness box as DW2. Apart from said facts, he deposed that quotations Ex.PW26/DA and Ex.PW26/DB are not on genuine letter heads of his company and the address mentioned thereon of Qutub Enclave is also not correct. His company never supplied quotations to firm of accused Shyam Singh. Signatures on the documents Ex.PW18/N1 and N2 i.e. cash receipts submitted by accused Shyam Singh with the bank were also claimed to be forged.
66 During cross examination, he admitted that cheques Ex.PW14/C1 to C9 are bearing his signatures and also office stamp of his firm. He admitted that at the time of signing those cheques, he was fully conscious and in sound mental state. He also admitted that current account was opened in the name of his firm in Central Bank of India, Nehru Place vide documents Ex.PW13/A and Ex.PW13/B. He also admitted that amount of pay orders was credited in his account.
67 The defence taken by accused Dal Chand Garg is that he gave cheques to N.S. Gulia (already discharged) and he misused the same. But he has not examined any witness or even N.S. Gulia to AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 38 of 51 establish his defence nor has he taken any action against N.S. Gulia for misusing his cheques. It is admitted case of accused Dal Chand Garg himself that cheques Ex.PW14/C1 to C9 have been issued by him bearing his signatures and stamp of his firm. When cheques were issued by accused Dal Chand Garg, he himself is responsible for its safer use. He can not take such a plea and that is too at such a belated stage that same were misused by N.S. Gulia. He has not brought any evidence or material to substantiate his defence. Rather, he has admitted that the pay orders issued by Andhra Bank in favour of his firm were credited in his account which establishes that he was in conspiracy with accused Shyam Singh for using the money which was sanctioned as term loan/credit facility to accused Shyam Singh. 68 Accused Jitender Gupta has taken the defence that he did not submit valuation report Ex.PW26/G and Ex.PW26/H. He claims that same were not in his handwriting and does not bear his signatures. He took a very weak plea that he might have left copy of his letter head in the office of E. Krishnamurthy on which reports have been fabricated.
69 He has examined handwriting Expert Deepak Jain as DW1 who stated that he examined disputed signatures and specimen AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 39 of 51 signatures of Jitender Gupta. After examination, he came to conclusion that disputed signatures were not of Jitender Gupta and did not match with his specimen signatures. He proved his report as Ex.DW1/A along with photographs, dia positive plates and compact disc Ex.DW1/B to D. 70 During his cross examination, he admitted that he was engaged by accused Jitender Gupta to give opinion. 71 Perusal of report Ex.PW26/D shows that disputed signatures marked Q81 to Q86 were written and signed by the person who wrote specimen signatures S45 to S54. These were the disputed and specimen signatures/writings of accused Jitender Gupta. It is a settled law that report of Government agency must prevail over the report of expert engaged by a party to the litigation. It is admitted case of accused Jitender Gupta engaged witness DW1 to give opinion. The possibility of obtaining favourable report in his favour can not be ruled out inasmuch as his services have been hired by the accused and payment therefor must have been made by him to the witness. No evidence or material has been brought on record by accused Jitender Gupta to show that his letter pads were misused by accused E. Krishnamurthy nor has he made any such complaint to any AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 40 of 51 authority regarding loss of his letter pad or misuser thereof. Therefore, in view of evidence adduced by the prosecution as discussed in earlier part of the judgment and particularly in view of reports GEQD, Shimla Ex.PW26/D, the opinion of DW1 does not render any assistance to accused Jitender Gupta and alone is not sufficient to probabilise his defence.
72 Ld. Counsel for accused persons has relied upon authorities reported as Keshav Dutt vs. State of Haryana (2010) 3 SCC (Cri) 1345 ; Sir Mohammed Yusuf and another vs. D and another AIR 1968 Bombay 112 ; Sudhir Engineering Company vs. Nitco Roadways Ltd. 1995 (34) DRJ 86 ; Narbada Devi Gupta vs. Birender Kumar Jaiswal and Anr. AIR 2004 SC 175 ; Umesh Bondre vs. Wilfred Fernades AIR 2007 Bombay 29 ; Kumaran Nair vs. Bhargavi and another 1988 Cri. L.J. 1000 and State (Delhi Admn.) vs. Pali Ram AIR 1979 SC 14. In all these authorities, it has been held that before relying upon report of handwriting expert, Trial Court ought to have examined handwriting expert and without doing so, report can not be relied upon. It has also been held that mere marking exhibit is not sufficient for proof of the document. 73 However, fact remains that reports of certain AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 41 of 51 Government scientific experts are admissible per se under Section 293 Cr.P.C. According to sub section (4) of section 293 Cr.P.C., report of any Government Scientific Expert is admissible without examining the author thereof. Even otherwise in Visakha Agro Chemicals (P) ltd. vs. Fertiliser Inspectorcum Assistant Director of Agriculture (Regular), (1997) 2 Crimes 648 (AP), it has been held that the court has to accept documents issued by any of the six officers who are mentioned in Section 293 as valid evidence without examining the author thereof. Therefore, report of GEQD, Shimla Ex.PW26/D can not be doubted merely on the ground that expert who prepared the report has not been examined. It is a valid piece of evidence and can be taken into consideration. Therefore, authorities relied upon by Ld. Counsel for accused persons do not help them. The accused persons have failed to probabilise their defence. Conclusion 74 It has duly been established by the prosecution that all the accused persons entered into a criminal conspiracy and common object of which was to cheat the bank by committing forgery and fabrication in the documents and using the same as genuine. 75 It has also been proved that accused Shyam Singh AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 42 of 51 committed forgery in the sale deeds Ex.PW8/A and Ex.PW8/C in the name of Smt. Sharda Nijhawan and Sant Ram respectively and also in project report Ex.PW18/A3. It has duly been established that Smt. Sharda Nijhawan was not residing at the given address and as per testimony of SubRegistrar (PW8), there was forgery in the said sale deeds. From the testimony of Tehsildar (PW20), it has also been proved that property of Sultanpur Majra was acquired by MCD in the year 1982. It has been proved that in the year 2000 when said sale deeds were submitted to the bank by accused Shyam Singh as collateral security were not in possession of Smt. Sharda Nijhawan and Sant Ram.
76 It has also been established that project report Ex.PW18/A3 submitted by accused Shyam Singh was false as it is mentioned therein that M/s Unimach Technocrafts would be the supplier of machinery. But as per report Ex.PW7/A, no such firm was found existing at the given address.
77 Accused Shyam Singh has been found to have committed cheating with the bank by submitting forged and fabricated documents and succeeded in availing term loan/credit facility of Rs.24.37 lacs by using them as genuine. AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 43 of 51 78 It has also been established that accused E. Krishnamurthy, being public servant while posted as Branch Manager of bank was duty bound to physically verify the mortgaged properties and the claim of his coaccused Shyam Singh. It has been proved that accused E. Krishnamurthy himself got opened the current account of his coaccused Shyam Singh by influencing PW3 Rakesh Mohan Singhal. He even went to the extent of bypassing the guidelines of bank by himself opening the current account of his coaccused Shyam Singh by not verifying his signatures as well as signatures of introducer. As per report Ex.PW18/H1, neither any power was there, nor any machinery was installed at the site of M/s Radhey Manufacturing Company, firm of accused Shyam Singh. Accused E. Krishnamurthy gave false report that manufacturing of zippers was being carried out at the given address. Thus, by abusing his official position as public servant, accused E. Krishnamurthy facilitated his coaccused Shyam Singh in obtaining term loan/credit facility to the tune of Rs.24.37 lacs and causing pecuniary loss to the bank. 79 Consequently, accused persons, namely, E. Krishnamurthy, Shyam Singh, Dal Chand Garg and Jitender Gupta are hereby held guilty under section 120B IPC read with Sections AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 44 of 51 420/467/468/471 IPC and 13(1)(d) of P.C.Act. Accused Shyam Singh is also held guilty under Sections 420/467/468/471 IPC. Accused E. Krishnamurthy is also held guilty under Section 13(2) read with Section 13(1)(d) of the P.C. Act. All the accused persons are convicted accordingly.
Announced in the open Court ( P.S. TEJI )
Dated: 07.10.2011 District Judge & ASJ, I/C (East)
Special Judge (CBI)
Karkardooma Courts : Delhi
AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 45 of 51
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &
ADDL. SESSIONS JUDGE, I/C (EAST) cum SPECIAL JUDGE (CBI), KARKARDOOMA COURTS, DELHI.
AC No.10/2005 Unique Case ID No.02402R0665782005 FIR No.RC 18(A)/2003 U/s 120B IPC r/w Sec. 420, 467, 468, 471 & Sec. 13(1)(d) r/w 13(2) of P.C. Act.
CBI Versus (1)E. Krishnamoorthy
S/o Late Sh. Lakshmirarayna
R/o C28, Arya Nagar Apartment,
Plot No.91, I.P. Extn., Delhi92.
(2)Shyam Singh
S/o Sh. Kali Ram
R/o Challera Village, Sadarpur Colony
Gali No.22, Sec45, Noida (UP)
(3)Dal Chand Garg
S/o Sh. Ram Narayan Garg
R/o 721, Sec18, Faridabad,
Haryana.
AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 46 of 51
(4)Narender Singh Gulia
S/o Sh. Amar Singh
R/o H.No.545, Sec16, Faridabad,
Haryana.
(Discharged vide order dated 30.1.2008)
(5)Jitender Gupta S/o Sh. K.C. Gupta
R/o 41, Ashirwad Apartment,
Plot No.74, I.P. Extn., Delhi92.
ORDER ON SENTENCE
I have heard Sh. Shashi Shankar, Ld. Counsel for convict E. Krishnamoorthy, Sh. A.C. David, Ld. Counsel for convict Shyam Singh, Sh. N.K. Sharma, Ld. Counsel for convicts Dal Chand Garg and Jitender Gupta as well as learned PP for the CBI on the quantum of sentence.
2 The learned PP for the CBI has submitted that the convicts have been held guilty for commission of criminal conspiracy. Convict E. Krishnamoorthy being public servant, by misusing his official position and caused pecuniary loss to the bank. It is further argued that convict Shyam Singh committed forgery in the documents and used the same as genuine with a view to cheat the AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 47 of 51 bank. He has further submitted that the convicts may be awarded maximum punishment prescribed under the law.
3 The learned counsel for convict E. Krishnamoorthy has submitted that he is suffering from high blood pressure and is a diabetic for the last six years. His wife is also a heart patient and her angiography has been done recently. Wife of the convict needs proper care and the convict is only member in the family to take care of her. It is further submitted that both convict as well as his wife are aged. Convict attended the court regularly and faced a protracted trial.
4 On behalf of convict Dal Chand Garg, it is submitted that he is having two children. Son is studying in 6 th standard whereas the daughter is matriculate and pursuing higher studies. He dared to examine himself under Section 315 Cr.P.C. It is further submitted that family of convict Dal Chand Garg resides at Mathura and entire family is dependent upon him.
5 On behalf of convict Jitender Gupta, it has been submitted that he is having two sons, one minor daughter and one married daughter. He is senior citizen of 62 years. On behalf of convict Shyam Singh, it is submitted that he is having three children. AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 48 of 51 Daughter is 14 years old whereas sons are 17 and 19 years old. He is the sole bread earner of the family and entire family is dependent upon him. He is having clean antecedents and attended the court regularly during trial. It has been prayed that lenient view may be taken while awarding sentence to the convicts.
6 Vide judgment dated 7.10.2011, convicts E. Krishnamoorthy, Shyam Singh, Dal Chand Garg and Jitender Gupta have been convicted for commission of offences punishable under Section 120B IPC read with Sections 420/467/468/471 IPC and 13(1)(d) of P.C. Act. Convict Shyam Singh has also been convicted for commission of offences punishable under Sections 420/467/ 468/471 IPC. Convict E. Krishnamoorthy has also been convicted under Section 13(2) read with Section 13(1)(d) of P.C. Act. 7 Considering the circumstances under which the offences were committed, convicts are sentenced as under :
(i)Convicts E. Krishnamoorthy, Shyam Singh, Dal Chand and Jitender Gupta are awarded sentence of five years rigorous imprisonment with fine of Rs.10,000/ each for the offence punishable under Section 120B IPC read with Sections 420/467/468/471 IPC and 13(1)(d) of P.C. Act. In default of payment of fine, convicts shall further undergo simple imprisonment for three months.
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(ii)Convict Shyam Singh is awarded sentence of seven years rigorous imprisonment with fine of Rs.10,000/ for the offence punishable under Section 420 IPC. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
(iii)Convict Shyam Singh is awarded sentence of seven years rigorous imprisonment with fine of Rs.10,000/ for the offence punishable under Section 467 IPC. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
(iv)Convict Shyam Singh is awarded sentence of seven years rigorous imprisonment with fine of Rs.10,000/ for the offence punishable under Section 468 IPC. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
(v)Convict Shyam Singh is awarded sentence of seven years rigorous imprisonment with fine of Rs.10,000/ for the offence punishable under Section 471 IPC. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
(vi)Convict E. Krishnamoorthy is awarded sentence of three years rigorous imprisonment with fine of Rs. 10,000/ for the offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. Act. In default of payment of fine, convict shall further undergo simple imprisonment for three months.
AC No.10/2005 CBI Vs. E. Krishnamoorthy etc. Page 50 of 51 8 Sentences of the convicts shall run concurrently. The convicts shall be entitled for the benefit of the provisions of Section 428 Cr.PC. Copies of the judgment and order on sentence be given free of cost to the convicts.
File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 12.10.2011 District Judge & ASJ, I/C (East)
Special Judge (CBI)
Karkardooma Courts : Delhi
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