Delhi District Court
Savelife Foundation vs Bhupendra Singh Tomar And Others on 23 October, 2024
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IN THE COURT OF MS. NAVITA KUMARI BAGHA, DJ-02 (SOUTH-
EAST), SAKET COURTS, NEW DELHI
CS No.430/2020
CNR No. DLSE01-003215-2020
Savelife foundation
(Through its Managing Trustee Piyush Tewari)
D-10, First Floor, Nizamuddin East,
New Delhi-110013
............. Plaintiff
Versus
1. Bhupendra Singh Tomar
S/o Late Balwant Singh
R/o House No.19/224, DDA Flats,
New Seelampur, Garhi Mendu,
Delhi-110053
2. Ms. Neetu Tomar
W/o Sh. Bhupendra Singh Tomar
R/o House No.19/224, DDA Flats,
New Seelampur, Garhi Mendu,
Delhi-110053
3. Ms. Asha Agarwal
W/o Sh. Rajesh Kumar
R/o 1/5806, Gali no.11, Balbir Nagar,
Shahdara, Delhi
4. Sh. Tarun Kumar Aggarwal
S/o Sh. Rajesh Kumar Aggarwal
R/o 1/5806, Gali no.11, Balbir Nagar,
Shahdara, Delhi
CS DJ No.430/2020 Digitally
signed by
Savelife Foundation
Vs.
navita navita
kumari
Bhupendra Singh Tomar & Ors. kumari bagha
Date:
bagha 2024.10.23
18:02:35
+0530
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5. Sh. Ravindra Kumar Kashyap
S/o Sh. Jang Bahadur
R/o 1/35, Lalita Park,
Laxmi Nagar, Delhi
............ Defendants
Date of Institution : 25.09.2020
Date of pronouncement of judgment : 23.10.2024
SUIT FOR RECOVERY
JUDGMENT
1. The present suit was filed by plaintiff against defendants on 25.09.2020 for recovery of Rs.43,30,933/- along with interest and for rendition of accounts. The brief facts of the suit as narrated in the Plaint are as follows:
1.1 That the Plaintiff is a Non-Governmental Organization (NGO) registered under Indian Trust Act, 1882 having its registered office at D-10, First Floor, Nizamuddin East, New Delhi - 110013 and is committed to improving road safety and access to emergency medical care across India. The present Plaint is signed, verified and instituted through Mr. Piyush Tewari, who is 'Managing Digitally signed by navita navita kumari kumari bagha Date:
bagha 2024.10.23
CS DJ No.430/2020 18:02:48
+0530
Savelife Foundation
Vs.
Bhupendra Singh Tomar & Ors.
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Trustee' of plaintiff and is authorized to sign, verify and file the present suit on behalf of the plaintiff. 1.2. That the defendant no.1, Bhupender Singh Tomar, was the Accounts and Finance Manager of Plaintiff from 28.10.2013 to 28.03.2018. The defendant no.2 (Neetu Tomar) is wife of defendant No.1. The defendant no.3 (Asha Agarwal) is defendant no.1's sister-in-law (i.e. his cousin's wife) and the defendant no.4 (Tarun Aggarwal) is son of defendant no.3. The defendant no.5 (Ravindra Kumar Kashyap) is defendant no.1's brother-in-law (i.e. brother of defendant no.2).
1.3 That the defendant no.1, with the aid and assistance of defendant no.2 to 5, has embezzled money from the account of plaintiff and therefore, they are jointly and severally liable to make payment of said amount to plaintiff.
1.4 That the Plaintiff had three bank accounts at the relevant time, out of which two bank accounts were with the State Bank of India (SBI) and one with ICICI Bank. The defendant no.1 was authorized to be one of the signatories to plaintiff's cheques in all three bank Digitally signed by navita navita kumari kumari bagha CS DJ No.430/2020 bagha Date:
2024.10.23 Savelife Foundation 18:03:05 +0530 Vs. Bhupendra Singh Tomar & Ors.Page 4 of 58
accounts. Being the sole Accounts and Finance Manager of the plaintiff, the defendant no.1 was handling all financial transactions of plaintiff on day-to-day basis, which included dealing in cash as well as cheques. He was the sole custodian of the books of accounts of plaintiff. Additionally, he was solely responsible for handling cash transactions and preparation and finalizing of expense vouchers.
1.5 That under the terms of his employment, the defendant no.1 was entitled to the following compensation:
Time Period Salary per month (INR)
28.10.2013 - 28.02.2015 35,000/-
01.03.2015 - 31.10.2016 55,000/-
01.11.2016 - 31.01.2018 62,000/-
01.02.2018 - 31.03.2018 70,000/-
1.6 That apart from the aforesaid monthly compensation, the
defendant no.1 was not entitled to any other payment, except the reimbursement for expenses. All the requests for reimbursement towards expenses incurred by employees were required to be duly navita kumari bagha CS DJ No.430/2020 Digitally signed by Savelife Foundation navita kumari bagha Date: 2024.10.23 Vs. 18:03:14 +0530 Bhupendra Singh Tomar & Ors.Page 5 of 58
supported by invoices and vouchers.
1.7 That on and around 26.03.2018, during a routine due diligence by Mr. Piyush Tewari (Managing Trustee) into the affairs of the plaintiff foundation, certain discrepancies in relation to cheque counterfoils maintained by defendant no.1 were found. Alarmed by the unexpected discrepancies and irregularities, a forensic audit by an independent auditor namely "MNV & Co., Chartered Accountants" was commissioned to determine whether cash withdrawals from the bank account of plaintiff were in accordance with the actual expenses incurred and further to review the books of accounts and documents of the plaintiff to ensure that the same were in order.
1.8 That a team from "MNV & Co., Chartered Accountants" made a surprise visit to the office premises of the plaintiff on 27.03.2018 and 28.03.2018 and conducted the detailed enquiry in the presence of defendant no.1 and it was observed that an amount of more than Rs.41 Lakhs was embezzled/misappropriated by defendant navita no.1. kumari bagha Digitally signed by navita kumari bagha Date: 2024.10.23 18:03:22 +0530 CS DJ No.430/2020 Savelife Foundation Vs. Bhupendra Singh Tomar & Ors.
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1.9 That on 28.03.2018, during the course of forensic audit, the defendant no.1 was given an opportunity to explain the various discrepancies in the books of accounts in the presence of the external auditor and various other members of the plaintiff including Mr. Praveen Aggarwal (an Advisor to plaintiff). Having no plausible explanation for his actions, the defendant no.1 broke down and admitted to his nefarious activities in collusion with defendant no.2 to 5 and requested that no legal action be initiated against him as he was the sole bread earner of his family consisting of two children and his wife (defendant no.2). Thereafter, the defendant no.1 unequivocally guaranteed that he would return the entire siphoned off money in due course of time. As an admission of his liability and in order to convince the plaintiff that he would return the embezzled amount, he offered to call his wife to the office of plaintiff to handover the papers of his property so that the same could be kept in the custody of plaintiff until he would return the money and keeping in view the fact that defendant no.1 had two children, Mr. Saji Cherian (Director, Operations of plaintiff) and Mr. Ashwani Kumar Sharma (Manager, navita kumari bagha Digitally signed by CS DJ No.430/2020 navita kumari bagha Date: 2024.10.23 Savelife Foundation 18:03:34 +0530 Vs. Bhupendra Singh Tomar & Ors.
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Administration of plaintiff) volunteered to go to a place convenient to defendant no.1 & 2 i.e. Hotel Leela Ambience, Karkardooma in the night of 28.03.2018 to collect the papers of the property, but there they were intimidated by defendant no.2, her family and other unknown persons accompanying them and a complaint U/Sec.406,420,464,468,470,477A IPC was made by plaintiff through its Managing Trustee on 28.03.2018 itself with P.S. Hazarat Nizamuddin and on the basis of said complaint FIR No.96/2018 U/Sec.420 IPC was registered against defendant no.1. 1.10 That On 12.04.2018 the final forensic audit report by MNV & Co.
was submitted to the plaintiff, as per which the defendant no.1 had misappropriated an amount Rs.43,30,933/- from the plaintiff for his personal use. The defendants had adopted the following modus operandi to embezzle the funds of the plaintiff:
a. Ordinarily, as a part of the functioning of the plaintiff, cash was withdrawn from the Bank account of the plaintiff and disbursed against work-related expenses incurred by various employees.
navita
kumari
bagha
Digitally signed by
navita kumari bagha
CS DJ No.430/2020 Date: 2024.10.23
Savelife Foundation 18:03:46 +0530
Vs.
Bhupendra Singh Tomar & Ors.
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b. Since defendant no.1 was authorized for approving
expenses, he created and approved bogus expenses and vouchers and then co-signed various cheques addressed "Self" in order to withdraw money from the Bank accounts of the plaintiff. Against the said withdrawal, the Plaintiff made an entry of advance given to employees. c. All the employees, against whose names advance was shown to have been given, were questioned and they confirmed that they had never claimed nor received any such advances or reimbursements.
d. Thus, it was found that no such advance was made to any employee, and the amounts withdrawn by defendant no.1 were in fact deposited by the defendant no.1 in his personal bank account as well as other bank accounts, subsequently discovered to be of the other defendants. e. There was no acknowledgment or signatures acknowledging receipt of payment against the vouchers generated against such withdrawals by defendant no.1.
Digitally
signed by
navita
CS DJ No.430/2020 navita kumari
kumari bagha
Savelife Foundation bagha Date:
2024.10.23
Vs. 18:03:55
+0530
Bhupendra Singh Tomar & Ors.
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1.11 That the final forensic audit report dated 12.04.2018 revealed that
the defendant no.1 had transferred an amount of Rs.22,07,961/- to his personal account through cheque transactions, whereas his salary as per Salary-Sheet was only Rs.13,58,961/-. Thus, the defendant no.1 had transferred to his account Rs.8,49,000/- (through cheque transactions) over and above his salary. Out of the said amount of Rs.8,49,000/-, an amount of Rs.8,24,000/- was transferred from the Plaintiff's SBI account to the account of defendant no.1 bearing no.32539595963 and balance amount of Rs.35,000/- was transferred from the Plaintiff's ICICI Bank Account (No.181901000056) to the other account of defendant no.1. 1.12 That the forensic report also revealed that a total amount of Rs.40,27,700/- was withdrawn from the bank accounts of the Plaintiff (i.e. ICICI Bank Account No.181901000056 and SBI Bank Accounts Nos.31193490071 & 30444965857) through "self cheques" w.e.f. 01.04.2016 to 28.03.2018, but out of the same, legitimate vouchers and supporting documents were available only for expenses amounting to Rs.5,45,767/-. Thus, an amount of Rs.34,81,933/- was embezzled by defendant no.1 through cash Digitally signed by navita navita kumari CS DJ No.430/2020 kumari bagha Savelife Foundation bagha Date:
2024.10.23 18:04:07 Vs. +0530 Bhupendra Singh Tomar & Ors.Page 10 of 58
transactions.
1.13 That the contemporaneous deposits of Rs.27,26,000/- were made by defendant no.1 in the joint bank account of defendant no.1 & 2 either on the same day of withdrawal of amount from the accounts of the Plaintiff or within a week thereafter. 1.14 That on 09.10.2018, Charge-sheet was filed in FIR No.96/2018 against defendant no.1 U/Sec.420/408 IPC in the Court of Ld. Metropolitan Magistrate, South-East District, Saket Court which revealed that the defendant no.1 had deposited Rs.3,55,915/- in the bank account of his sister-in-law (i.e. defendant no.3), Rs.2,79,209/-
in the bank account of his nephew (i.e. defendant no.4) and Rs.4,55,000/- in the bank account of his brother-in-law (i.e. defendant no.5).
1.15 Therefore, the present suit was filed by plaintiff for passing decree of recovery of Rs.43,30,933/- in favour of the plaintiff and against the defendants jointly and severally along with pendente-lite and future interest @18% per annum; and also for passing order of full rendition of accounts of defendants for the amounts illegally navita kumari bagha CS DJ No.430/2020 Digitally signed Savelife Foundation by navita kumari bagha Vs. Date: 2024.10.23 18:04:15 +0530 Bhupendra Singh Tomar & Ors.
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earned by them.
2. Summons of the suit were issued to defendant no.1, 2, 3, 4 & 5 and after service of summons, defendant no.1, 2 & 5 filed their joint Written Statement on 25.04.2022. But the defendant no.3 & 4 did not appear despite service of summons and therefore, they were proceeded against ex-parte vide order dated 15.02.2022. In the joint Written Statement, the defendant no.1, 2 & 5 denied the contents of the plaint and made the following submissions:
2.1 That the defendant no.1 was appointed as Accounts & Finance Manager by plaintiff on 28.10.2013 and he was also appointed as authorized signatory alongwith two other existing signatories to plaintiff's bank accounts and during the course of his employment he looked-after all the financial matters of plaintiff and also managed all petty/office expenditures as well as staff salary, etc. 2.2 That one of the authorized signatories namely Saji Cheriyan (Director) had given some cheques from plaintiff's account in the name of defendant no.1 for encashment and after getting the same encashed, the said cash of Rs.8 Lakhs approximately was Digitally signed by navita navita kumari CS DJ No.430/2020 kumari bagha bagha Date:
Savelife Foundation 2024.10.23 18:04:23 +0530 Vs. Bhupendra Singh Tomar & Ors.Page 12 of 58
collected by CEO Piyush Tiwari within a span of two years. His accountant advised him not to take any further cheque from the plaintiff, otherwise he might had to pay extra income-tax penalty and therefore he (defendant no.1) on 28.03.2018 refused for encashment of cheque, as a result of which Saji Cheriyan got annoyed and called Managing Trustee Piyush Tiwari, who came there alongwith 3-4 persons and they overpowered and manhandled him and took him to Hotel Leela Ambience, Karkardooma where they threatened to send him to jail and took signatures of defendant no.1 and his wife (defendant no.2) forcibly on blank promissory note, regarding which a complaint was made by his wife in P.S. Anand Vihar on 05.04.2018 vide DD no.55B. 2.3 That the defendant no.1 had never misused his designation and power and always performed his work in favour of plaintiff and never tried to harm the image and dignity of plaintiff in any manner.
3. The Replication to joint Written Statement was filed by plaintiff on 06.09.2022 wherein the plaintiff denied almost all the averments navita kumari bagha Digitally signed by navita kumari bagha CS DJ No.430/2020 Date: 2024.10.23 18:05:07 +0530 Savelife Foundation Vs. Bhupendra Singh Tomar & Ors.Page 13 of 58
made by the defendants and reiterated the submissions made in the plaint.
4. During admission/denial of documents conducted on 06.09.2022, the plaintiff admitted the following documents filed by defendant:
(i) Ex.D-1 - Termination letter of the defendant.
5. The affidavit of admission/denial of documents was filed by defendant no.1 on 22.09.2022 vide which he admitted the following documents filed by plaintiff:
(i) Copy of advertisement for the post of Accounts and Finance Manager.
(ii) Copy of email dated 17.08.2013.
(iii) Copy of email dated 25.09.2013 of plaintiff making offer to defendant.
(iv) Copy of appointment letter of defendant dated 28.10.2013
(v) Copy of non-disclosure agreement dated 28.10.2013.
Digitally signed by navita navita kumari kumari bagha bagha Date:
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(vi) Copy of salary slips of 2016-17 and 2017-18.
(vii) Copy of the extract of minutes of meeting dated 22.04.2016.
(viii) Certified copy of Charge-sheet admitted but contents denied.
(ix) Supplementary Charge-sheet admitted but contents denied.
6. On the basis of pleadings of the parties, the following issues were framed by Ld. Predecessor Court on 06.09.2022:
1. Whether the plaintiff is entitled to decree for a sum of Rs.43,30,933/- as prayed? OPP
2. Whether Plaintiff is entitled to interest, if yes, at what rate and for what period? OPP
3. Whether the Plaintiff is entitled to decree of rendition of account as prayed in clause-B? OPP
4. Relief.
7. In plaintiff's evidence, the plaintiff has examined three witnesses i.e. Piyush Tiwari (Managing Trustee of plaintiff) as PW-1, Parveen navita kumari CS DJ No.430/2020 bagha Savelife Foundation Digitally signed by navita kumari Vs. bagha Date: 2024.10.23 Bhupendra Singh Tomar & Ors. 18:05:20 +0530 Page 15 of 58 Kaushik (Chartered Accountant) as PW-2 and Manish Kumar Goel as PW-3.
8. During defendants' evidence the defendant no.1, 2 & 5 examined three witnesses i.e. Bhupender Singh Tomar (defendant no.1) as DW- 1, Ms. Neetu Tomar (defendant no.2) as DW-2 and Ravinder Kumar Kashyap (defendant no.5) as DW-3.
9. PW-1 Piyush Tiwari in his affidavit of evidence i.e. Ex.PW-1/20 has reiterated and reaffirmed the facts mentioned in the plaint. In order to prove the case of the plaintiff, the PW-1 has exhibited the following documents:
(i) Ex.PW-1/1 - Board resolution dated 24.01.2020 vide which PW-1 was authorized to file the present suit.
(ii) Ex.PW-1/2 - Minutes of Board Meeting held on 04.03.2008 vide which PW-1 was appointed as President and Managing Trustee of plaintiff.
(iii) Ex.PW-1/3 - Trust Deed of plaintiff dated 29.02.2008.
navita kumari bagha Digitally signed by navita kumari bagha CS DJ No.430/2020 Date: 2024.10.23 18:05:26 +0530 Savelife Foundation Vs. Bhupendra Singh Tomar & Ors.
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(iv) Ex.PW-1/4 - Supplementary Trust Deed of plaintiff dated 12.05.2011.
(v) Ex.PW-1/5 - Advertisement, issued by plaintiff for the post of Accounts & Finance Officer.
(vi) Ex.PW-1/6 - Email dated 17.08.2013 of defendant no.1.
(vii) Ex.PW-1/7- Email dated 25.09.2013, sent on behalf of plaintiff.
(viii) Ex.PW-1/8 - Reply dated 25.09.2013, received from defendant no.1.
(ix) Ex.PW-1/9 - Letter of Appointment dated 28.10.2013 issued to defendant no.1.
(x) Ex.PW-1/10 - Non-Disclosure Agreement dated 28.10.2013 executed between plaintiff and defendant no.1.
(xi) Ex.PW-1/11 - Salary details of the defendant no.1 for the year 2016-17 and 2017-18.
(xii) Ex.PW-1/12 - Salary Slips of defendant no.1 for the year 2016-
navita
kumari
bagha
Digitally signed by
CS DJ No.430/2020 navita kumari
bagha
Savelife Foundation Date: 2024.10.23
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17.
(xiii) Ex.PW-1/13 - Salary Slips of defendant no.1 for the year 2017- 18.
(xiv) Ex.PW-1/14 - Minutes of Meeting of Governing Board of plaintiff held on 22.04.2016 vide which defendant no.1 was authorized to sign cheques, bills of exchange and promissory notes on behalf of plaintiff.
(xv) Ex.PW-1/15 - Letter dated 03.06.2016, sent to ICIC Bank. (xvi) Ex.PW-1/16 - Letter dated 03.06.2016, sent to State Bank of India for adding name of defendant no.1 as signatory. (xvii) Ex.PW-1/17 - Forensic Audit Report dated 12.04.2018. (xviii) Ex.PW-1/18 - Copy of certified copy of Chargesheet dated 09.10.2018, filed in the case titled as "State Vs. Bhupendra Singh Tomar" in Criminal Case No.6937/2018. (xix) Ex.PW-1/19 - Copy of certified copy of Supplementary Chargesheet dated 03.10.2019, filed in the case titled as "State navita kumari CS DJ No.430/2020 bagha Savelife Foundation Digitally signed by navita kumari bagha Vs. Date: 2024.10.23 18:05:42 +0530 Bhupendra Singh Tomar & Ors.
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Vs. Bhupendra Singh Tomar" in Criminal Case No.6937/2018. (xx) Ex.PW-1/20 - Affidavit of evidence of PW-1 dated 22.10.2022.
10. During his cross-examination by the counsel for defendant no.1, 2 & 5, the PW-1 deposed that in the year 2016-2017 and 2017-2018, there were three authorized signatories for operating all the three bank accounts of the plaintiff namely Bhupendra Singh Tomar (i.e. defendant no.1), Saji Cherian and Piyush Tiwari (PW-1) and each cheque was required to be signed by at least two of the authorized signatories. He further deposed that the Forensic Audit Report revealed defalcation of monies in excess of Rs.41 Lakhs. He further deposed that prior to the year 2016, only statutory audits were conducted annually and that no forensic audit of accounts of the plaintiff was conducted prior to 2016. He further deposed that the forensic audit was commissioned by him in his capacity of Managing Trustee of the plaintiff after suspicion of wrong doing by defendant no.1 during the routine diligence of the Accounts Department of the plaintiff. He denied the suggestion that he impleaded defendant no.1 in embezzlement in order to save himself. He deposed that the navita kumari bagha CS DJ No.430/2020 Digitally signed by navita Savelife Foundation kumari bagha Date:
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vouchers associated with cheques were also required to be signed by two of the signatories. He deposed that the said vouchers were not annexed with the Plaint. However, he voluntarily stated that he would produce the said vouchers. And on 05.11.2022, he filed the said vouchers on record which are Ex.PW-1/DW-1(colly.). He deposed that the said vouchers were issued in support of cheques issued from SBI Account No.31193490071 of plaintiff and ICICI Bank Account No.181901000056 of plaintiff. He further deposed that the embezzled amount was deposited by defendant no.1 into his bank account held jointly with defendant no.2 and he had learnt from the Charge-sheet filed by the police in criminal case no.6937/2018 that the defendant no.1 had also deposited some of the money in the bank accounts of defendant no.3, defendant no.4 and defendant no.5. He denied the suggestion that he was aware of all the embezzlement. He further denied the suggestion that he intentionally did not issue written Show-cause/Legal Demand Notice to defendant no.1 because he was aware of the embezzlement or that the other Trustees were not informed about the embezzlement due to his own involvement.
11. PW-2 Praveen Kaushik deposed in his affidavit of evidence i.e. navita kumari bagha CS DJ No.430/2020 Digitally signed by Savelife Foundation navita kumari bagha Date: 2024.10.23 Vs. 18:05:54 +0530 Bhupendra Singh Tomar & Ors.
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Ex.PW-2/1 that he was a Chartered Accountant by profession and enrolled as Chartered Accountant since the year 2006 and in the year 2018, he was working as a Partner at Chartered Accountant Firm namely MNV & Co. and on 25.03.2018, Piyush Tiwari (Managing Trustee of plaintiff) contacted MNV & Co. for conducting forensic audit/investigation for the accounts of plaintiff and on 26.03.2018, an Appointment Letter i.e. Mark A was issued by plaintiff to MNV & Co. to conduct the forensic audit of plaintiff for the period starting from 01.04.2016 to 28.03.2018 and Manish Kumar Goel alongwith other Team Members, semi-qualified C.A. working in his team, carried out the detailed process of forensic audit and collated information and prepared a Forensic Audit Report dated 12.04.2018 i.e. Ex.PW-1/17 and after verifying the information provided in the documents and the contents of the Audit Report, he (PW-2) put his signatures on the said report. He further deposed that as per the Forensic Audit Report, Rs.8,49,000/- over and above the salary of defendant no.1 were transferred to him from the account of plaintiff and out of the said amount, sum of Rs.8,14,000/- was deposited by him in his SBI Account No.32539595963 and apart from that the defendant no.1 navita kumari bagha Digitally signed by navita kumari bagha CS DJ No.430/2020 Date: 2024.10.23 18:06:01 +0530 Savelife Foundation Vs. Bhupendra Singh Tomar & Ors.
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had withdrawn cash amounting to Rs.27 Lakhs on various dates from the account of plaintiff and deposited the same into his account on the same day or within seven days of withdrawal. He further deposed that the defendant no.1 had deposited the cash, withdrawn from the account of plaintiff, into his SBI Account 56 times.
12. During his cross-examination by the counsel for defendant no.1, 2 & 5, the PW-2 deposed that Rs.8,19,350/- were transferred in the account of defendant no.1 from the ICICI Bank of plaintiff and Rs.13,88,611/- were transferred to his account from the SBI Account of plaintiff. He further deposed that out of the total sum of Rs.8,49,000/- over and above the salary of defendant no.1 transferred to his bank account, a sum of Rs.8,14,000/- was deposited in the bank account no.32539595963 of defendant no.1 with SBI and the balance amount of Rs.35,000/- was deposited in different bank account. He further deposed that the withdrawals made through Self/Bearers Cheques were shown as advances given/to be given to the employees in the Books of Accounts and the said cheques were written and signed by defendant no.1 and Director (Operations) to withdraw cash from the bank. He further deposed that Digitally signed by navita navita kumari CS DJ No.430/2020 kumari bagha bagha Date:
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the entire withdrawal amount of Rs.40,27,700/- (as mentioned in Forensic Aduit Report) was not given as advance salary to the employees. He deposed that against the said amount, vouchers and supporting documents amounting to Rs.5,45,767/- were available for cash given and used for legitimate expenses, but the cash amounting to Rs.34,81,933/- did not have any supporting document.
13. He further deposed that during his interview, the defendant no.1 confirmed that the primary control of accounting software (Tally) was with him and all the bank transactions and cash management, salary preparation and employees' payouts were managed primarily by him with the assistance of Accounts Officer. He further deposed that the bogus transactions as mentioned in Para 10 of Ex.PW-1/17 were created by him which led to the inference that the embezzlement was done by him. He further deposed that though the cheque numbers of 56 bank transactions of cash deposits in Appendix 6 of Ex.PW-1/17 were not mentioned, but the amounts alongwith dates of 56 instances were highlighted in the said Appendix. He denied the suggestion that he had concocted the whole story, whereas no discrepancy was navita kumari found. bagha Digitally signed by navita kumari bagha Date: 2024.10.23 CS DJ No.430/2020 18:06:14 +0530 Savelife Foundation Vs. Bhupendra Singh Tomar & Ors.
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14. PW-3 Manish Kumar Goyal deposed that he was a semi-qualified Chartered Accountant by profession and enrolled with ICAI and having Master's Degree in Commerce possessing more than 10 years of distinguished experience in the field of audit and assurance services and has been working with MNV & Co. since the year 2017. He further deposed that on 26.03.2018, Piyush Tiwari, Founder & Managing Director of plaintiff, came to the office of MNV & Co. to engage them to conduct forensic audit to determine whether cash withdrawals from plaintiff's bank accounts were in accordance with the actual expenditure incurred and whether proper documentation was being maintained by Accounts & Finance Department for day-to- day operations and on 27.03.2018, team from MNV & Co. visited the office of plaintiff and reviewed the documents/records of plaintiff and also interviewed the Accounts Officer Ms. Jyoti Gupta, Accounts & Finance Manager i.e. defendant no.1, Admin. Manager Ashwani Kumar and Director of Operations Saji Cherian and the defendant no.1 stated that all bank transactions, cash management, salary preparation and employee payouts were managed primarily by him with assistance of Accounts Officer Ms. Jyoti Gupta who had to act navita kumari bagha CS DJ No.430/2020 Digitally signed by navita kumari bagha Savelife Foundation Date: 2024.10.23 Vs. 18:06:22 +0530 Bhupendra Singh Tomar & Ors.
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under his instructions and he further stated that the primary control of Tally accounting software was with him (defendant no.1) with separate access given to Ms. Jyoti Gupta and the same was confirmed by Ms. Jyoti Gupta also. He further deposed that after receiving the data and information, the team conducted detailed working on the data and prepared its final Audit Report dated 12.04.2018 i.e. Ex.PW-1/17. He further deposed that the team was informed that there were following types of expenditure processed by plaintiff for grants received: (i) direct payment to vendors, (ii) expenses reimbursed to employees and (iii) payment of salary to employees. He further deposed that for the purpose of reimbursement to employees, after an expenditure was incurred by an employee, a detailed expense-sheet was used to be prepared by the employee for reimbursement and submitted with the Finance Department and voucher was used to be prepared by Accounts Officer and submitted to Accounts & Finance Manager who after verification used to sign voucher and cheque and then submit to Director (Operations) for review and thereafter, cheque or cash was used to be handed over to the employee who used to provide navita kumari bagha Digitally signed by CS DJ No.430/2020 navita kumari bagha Savelife Foundation Date: 2024.10.23 18:06:29 +0530 Vs. Bhupendra Singh Tomar & Ors.
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receiver's signature on photocopy of the cheque and/or voucher. He further deposed that all cash payments were made by the Accounts & Finance Manager i.e. defendant no.1 as all cash was handled by him. He further deposed that on the basis of forensic audit and investigation, it was observed as follows:
(i) Several expenses were booked by defendant no.1 under plaintiff's savings (funds unrelated to ongoing projects) for which supporting documentation was unavailable.
(ii) It was discovered that a disproportionately high and frequent number of transfers of funds were made through cheques to a single Bank Account No.32539595963 of defendant no.1 maintained with SBI.
(iii) It was discovered that an amount of Rs.8,49,000/- over and above his salary was transferred to defendant no.1. Out of the aforesaid amount, Rs.8,14,000/- was deposited by defendant no.1 in his Bank Account No.32539595963 maintained with SBI and the remaining amount of Rs.35,000/- was deposited in another bank account of defendant no.1. Digitally signed by navita navita kumari kumari bagha Date:
bagha 2024.10.23 18:06:35 +0530 CS DJ No.430/2020 Savelife Foundation Vs. Bhupendra Singh Tomar & Ors.Page 26 of 58
(iv) It was discovered that a disproportionately high amount of cash was withdrawn from plaintiff's bank account, but there was no supporting documentation for expenses booked against such withdrawal. Though such withdrawals were made through "Self" cheques, but in the Books of Accounts, they were shown to be advances given to employees, whereas no such advances were received in actual by any such employees and therefore, there were no receiver signatures on the vouchers against such expenses.
(v) It was discovered that cash amounting to Rs.34,81,933/- was unaccounted for and missing.
15. He further deposed that the aforesaid funds were embezzled by defendant no.1 by using the following modus operandi:
(i) "Self" and/or "bearer" cheques were written and signed by Accounts & Finance Manager (i.e. defendant no.1) and Director (Operations) to withdraw cash from the bank and a contra entry was passed in Tally accounting software by debiting cash and crediting bank for the said cash withdrawal Digitally signed by navita navita kumari CS DJ No.430/2020 kumari bagha bagha Date:
Savelife Foundation 2024.10.23
18:06:43
Vs.
+0530
Bhupendra Singh Tomar & Ors.
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and the voucher was signed by Accounts & Finance Manager (i.e. defendant no.1) and Director (Operations), but later on the said entry was changed/altered by the defendant no.1 to show the cash withdrawal as advance given to employees by debiting employees and crediting bank;
(ii) Thereafter the advances so recorded were adjusted/settled against bogus expenses for which no supporting document/voucher was filed by defendant no.1;
(iii) In one particular case, a settlement amount received by cheque from an employee who left the organization without serving notice, was never shown by defendant no.1 and the same was siphoned off by him;
(iv) All bogus entries were made in accounting software Tally from the ID "Bank" which was operated by defendant no.1, which led to the inference that the entire embezzlement was done by him.
16. He further deposed that a total amount of Rs.43,30,933/- was navita kumari bagha Digitally signed by CS DJ No.430/2020 navita kumari bagha Date: 2024.10.23 Savelife Foundation 18:06:50 +0530 Vs. Bhupendra Singh Tomar & Ors.
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embezzled by defendant no.1 through bank and cash; plaintiff's funds to the tune of Rs.8,49,000/-, in excess of entitled salary, were deposited by defendant no.1 into his SBI Account using cheques; cash deposits amounting to the tune of Rs.27,26,000/- were made to the bank account of defendant no.1 with most deposits made on the same day or within seven days of withdrawal of cash from the plaintiff's bank account.
17. During his cross-examination by the counsel for defendant no.1, 2 & 5, the PW-3 deposed that the plaintiff had engaged MNV & Co. for forensic audit and the said company had delegated him the said work. He deposed that as per his knowledge any member of ICAI (Institute of Chartered Accountant of India), who is in practice, can do forensic audit and earlier there was no specific course defined by ICAI for forensic audit prior to 2019. He further deposed that the defendant no.1 had embezzled Rs.43 Lakhs approximately, out of which Rs.8,49,000/- were through bank transactions, whereas Rs.34,81,933/- were through cash transactions. He further deposed that amount of Rs.22,07,061/- was transferred to defendant no.1's bank account, out of which amount of Rs.13,58,961/- was towards his navita kumari bagha CS DJ No.430/2020 Digitally signed by Savelife Foundation navita kumari bagha Vs. Date: 2024.10.23 18:06:58 +0530 Bhupendra Singh Tomar & Ors.
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salary. He further deposed that the total amount of Rs.27 Lakhs as mentioned in Appendix 6 of Audit Report Ex.PW-1/17, withdrawn from plaintiff's account, was deposited in the account of defendant no.1, which was mostly deposited either on the same day or within seven days of withdrawal of cash from plaintiff's bank accounts. He further deposed that the defendant no.1 was the only person responsible for the embezzlement amount as per Forensic Audit Report Ex.PW-1/17.
18. DW-1 Bhupendra Singh Tomar (defendant no.1) in his affidavit of evidence i.e. Ex.DW-1/1 reiterated and reaffirmed the facts mentioned in the Written Statement and exhibited/marked the following documents:
(i) Mark A - Copy of Request Letter of defendant no.1 dated 09.04.2018.
(ii) Ex.DW-1/B - Copy of Termination Letter dated 11.04.2018.
(iii) Mark B - Copy of reply of plaintiff dated 17.04.2018 to letter dated 09.04.2018. navita kumari bagha Digitally signed by navita kumari bagha Date: 2024.10.23 18:07:05 +0530 CS DJ No.430/2020 Savelife Foundation Vs. Bhupendra Singh Tomar & Ors.
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(iv) Mark C - Copy of Police Complaint dated 06.04.2018 made by defendant no.2.
(v) Mark D - Copy of Police Complaint dated 06.04.2024 made by defendant no.1.
(vi) Mark E - Copy of documents related to defendant no.1's motor bike.
(vii) Mark F - Copy of bank statements of defendant no.1&2.
(viii) Mark G - Copy of bank statements of defendant no.5.
19. During his cross-examination by counsel for plaintiff, the DW-1 (defendant no.1) deposed that as an Accounts & Finance Manager of plaintiff, his job was to finalize the Books of Accounts of the plaintiff including compliance with various organizations including FCRA compliance and he and Ms. Jyoti Gupta (who was working under his supervision) were responsible for maintaining bank accounts and reconciliation of bank accounts of the plaintiff. He further deposed that the vouchers were used to be prepared by Jyoti Gupta and thereafter, he used to verify the same and thereafter Mr. Saji Cherian Digitally signed by navita navita kumari CS DJ No.430/2020 kumari bagha bagha Date:
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used to finalize the vouchers. He further deposed that he and Jyoti Gupta used to prepare the salary-sheets of employees and thereafter, the same were used to be approved either by Mr. Saji Cherian or by Mr. Piyush Tiwari. Regarding the reimbursement of expenses made out of the pocket, the DW-1 deposed that the person who used to incur the expenses had to furnish the supporting bills to Ms. Jyoti Gupta of Accounts & Finance Department, who after checking all the calculations and supporting bills, used to prepare the vouchers accordingly and after getting the same verified from him and later on approved from Mr. Saji Cherian, the said amount was used to be reimbursed.
20. He admitted it as correct that the Tally software was used to maintain the Books of Accounts and he and Jyoti Gupta had access to tally software. He further deposed that the cheque book of the plaintiff was in the possession of Accounts & Finance Department and the said department was responsible for issuing/preparation of cheques of the expenses.
21. He admitted it as correct that besides the salary, an additional Digitally signed by navita navita kumari kumari bagha bagha Date:
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amount of Rs.8 Lakhs approximately was deposited in his bank account. He admitted it as correct that no FIR was registered on the basis of complaint made by him in P.S. Anand Vihar and further that his application U/Sec.156(3) Cr.P.C. was dismissed and the Revision Petition, preferred by him against the dismissal order, was also dismissed. He admitted it as correct that he had not mentioned the name of Ms. Jyoti Gupta in his affidavit of evidence i.e. Ex.DW-1/1, but denied the suggestion that he had deliberately introduced her name in the cross-examination just to shift the blame on her. He admitted it as correct that FIR No.96/2018 P.S. Nizamuddin was registered against him and he had remained in prison for approximately 60 days.
22. In Para 5 of his affidavit of evidence, DW-1 had deposed that Mr. Saji Cherian had given some cheques from the account of plaintiff in his name for encashment and cash for the said cheques was collected thereafter by C.E.O. Mr. Piyush Tiwari. When during his cross- examination, question was put to him as to whether he was remembering any particular instance wherein Mr. Piyush Tiwari had collected cash from him, he replied that he was not remembering any navita kumari bagha CS DJ No.430/2020 Digitally signed by navita kumari bagha Savelife Foundation Date: 2024.10.23 18:07:22 +0530 Vs. Bhupendra Singh Tomar & Ors.
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particular date of such incident. He also deposed that he was not remembering the exact date when he had withdrawn the cash against the cheques.
23. He admitted it as correct that the vouchers were maintained for all expenses. He deposed that during his employment with the plaintiff, he was also teaching accounts to the students, but he was not having any proof of the same. He further deposed that he was not remembering as to how many students he was teaching. He deposed that apart from the same, he was not having any other source of income. He further deposed that he had not declared the income from tuitions.
24. When he was asked about the entries of Rs.1,11,200/- and Rs.1,90,500/- in Mark F (copy of his bank statements), he replied that the said cash deposits were received by him from his relatives/committees. However, he deposed that he was not having any proof of taking loan from his relatives or cash deposits received from any such committees.
25. DW-2 Ms. Neetu Tomar (defendant no.2) also reiterated the facts, Digitally signed by navita navita kumari CS DJ No.430/2020 kumari bagha bagha Date:
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mentioned in the Written Statement, in the affidavit of evidence filed by her i.e. Ex.DW-2/A. During her cross-examination by the counsel for plaintiff, she deposed that she was having joint bank account with her husband (DW-1) but she never operated the said joint bank account and was unaware of any banking transaction in the said joint bank account. She deposed that she had never withdrawn cash from the said joint bank account. She further deposed that she had deposed in her affidavit i.e. Ex.DW-2/A as per what she had heard from her husband and she herself was not having any personal knowledge of the same. He deposed that on 28.03.2018, she had called her father and brother to Leela Hotel, but she had not made any complaint to the hotel staff on 28.03.2018 upon receiving threats from the plaintiff's official. She further deposed that she did not make any PCR call also on 28.03.2018. She admitted it as correct that on 28.03.2018, no written complaint was made anywhere. She deposed that he had made complaint on 05.04.2018 at P.S. Anand Vihar. She admitted it as correct that no FIR was lodged on the basis of her complaint and that her application U/Sec.156(3) Cr.P.C. was dismissed by the Court and even the Revision Petition, preferred Digitally signed by navita navita kumari kumari bagha bagha Date:
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against the dismissal order, was also dismissed. She admitted it as correct that her husband i.e. DW-1 was not employed anywhere during the subsistence of his employment with the plaintiff and further that the salary received from the plaintiff was the only source of income at that time.
26. DW-3 Ravindra Kumar Kashyap (defendant no.5) deposed in his affidavit of evidence i.e. Ex.DW-3/A that in the month of September, 2016, he had taken VRS from his company and received total sum of Rs.23 Lakhs against his VRS and thereafter, the defendant no.1 borrowed a sum of Rs.7,50,000/- from him in November, 2016, which he paid to him in cash after withdrawing from his savings account and thereafter, the defendant no.1 transferred a sum of Rs.4,50,000/- in installments to him from his personal account in 13/14 installments and also paid cash to him against the receipt of said amount of Rs.7,50,000/-.
27. During his cross-examination by the counsel for plaintiff, DW-1 deposed that neither he has filed any evidence of taking VRS nor annexed any proof of receipt of Rs.23 Lakhs in lieu of VRS. He navita kumari bagha Digitally signed by CS DJ No.430/2020 navita kumari bagha Date: 2024.10.23 Savelife Foundation 18:07:45 +0530 Vs. Bhupendra Singh Tomar & Ors.
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admitted it as correct that he had not stated the facts mentioned in Para No.7 & 10 of his affidavit of evidence (regarding VRS, amount received after VRS, lending money to defendant no.1 and payment made by defendant no.1 towards the said borrowed amount) in the Written Statement. He also admitted it as correct that no formal loan agreement was entered into between him and defendant no.1.
28. I have heard the final arguments from Counsels Ms. Niyati Kohli, Ms. Suruchi Jaiswal and Ms. Ayushi S. Khazanchi for plaintiff and from counsel Sh. M. Shakeel Saifi for defendant no.1, 2 & 5. I have perused the record also.
29. Though the defendants had not taken any objection in their Written Statement regarding the maintainability of suit, but during the final arguments, their counsel raised objection, while placing reliance upon case-law titled as V. Chandrasekaran Vs. Venkatanaicker Trust, 2017(1) CTC 56, that the suit filed by one of the co-trustees even on authorization by resolution passed by other co-trustees is not maintainable. He contended that the board resolution was not sufficient to authorize one of the trustees to file suit as the suit could navita kumari bagha Digitally signed by CS DJ No.430/2020 navita kumari bagha Date: 2024.10.23 Savelife Foundation 18:07:52 +0530 Vs. Bhupendra Singh Tomar & Ors.
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have been filed by him only if there was Power of Attorney executed in his favour by all the trustees.
30. But the counsel for plaintiff, while placing reliance upon case-law titled as K. Dhananjayan & Ors. Vs. Love and Concern & Ors., MANU/TN/2951/2023 argued that the suit can be filed by a representative of the Trust in terms of Trust Deed for and on behalf of the Trust. She further argued that since in the present case, the Managing Trustee was authorized as per Clause 7(c) of the Trust Deed dated 29.02.2008 to perform all functions, discharge such duties as or specially entrusted to him in writing by the Board of Trustees, so, Piyush Tewari being the Managing Trustee, authorized vide board resolution dated 24.01.2020, was duly authorized to file the present suit. I find merit in her contention. Even as per the case-law relied upon by the Counsel for defendants, the Hon'ble High Court has held that the suit should be filed either by all the trustees or by one of the trustees on behalf of all, if there is stipulation to that effect in the trust deed. In the present case, the PW-1 has duly proved the Trust Deed of plaintiff which is Ex.PW-1/3. The Clause 7(c) of said Trust Deed reads as follows:
Digitally signed by navita navita kumari kumari bagha bagha Date:
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"The Managing Trustee shall perform all functions, discharge such duties as or specifically entrusted to him/her in writing by the Board of Trustees."
31. As per board resolution dated 24.01.2020 i.e. Ex.PW-1/1, Board of Trustees of the plaintiff had authorized its CEO & Managing Trustee Mr. Piyush Tewari to file civil suit against ex-Finance Manager Sh. Bhupendra Singh Tomar (i.e. defendant no.1) and others for affecting recovery of Trust Funds embezzled by him and his associates. Thus, it is clear that in view of Clause 7(c) of Trust Deed Ex.PW-1/3 and Resolution of Board of Trustees i.e. Ex.PW-1/1, Piyush Tewari, CEO & Managing Trustee of plaintiff is duly authorized to file the present suit. Hence, the contention of the counsel for defendants that the suit is not instituted properly and thus not legally maintainable, is rejected.
32. My findings on the aforesaid issues are as under:
ISSUE NO.1 Whether the plaintiff is entitled to decree for a sum of Rs.43,30,933/- as prayed? navita kumari bagha Digitally signed by navita kumari bagha Date: 2024.10.23 18:08:04 +0530 CS DJ No.430/2020 Savelife Foundation Vs. Bhupendra Singh Tomar & Ors.Page 39 of 58
33. The onus to prove this issue was on the plaintiff. The Plaintiff has filed the present suit for recovery of Rs.43,30,933/- alongwith interest by stating that the defendant no.1, who was Accounts and Finance Manager of plaintiff, had siphoned off the said amount of plaintiff in conspiracy with defendant no.2, 3, 4 & 5.
34. The defendant no.1, 2 & 5 have categorically admitted in para 12 (of preliminary objections) and para 1 (of reply on merits) of their Written Statement that the defendant no.1 was working with the Plaintiff as Accounts and Finance Manager with effect from 28.10.2013 to 28.03.2018. They have also categorically admitted in para 13 (of preliminary objections) and para 9 & 13 (of reply on merits) of the Written Statement that the Defendant no.1 was one of the signatories of plaintiff's cheques in all the three bank accounts of plaintiff i.e. FCRA Account No.31193490071 at SBI, Non-FCRA Account No.30444965857 at SBI and Non-FCRA Account No. 81901000056 at ICICI and he was handling all financial transactions of the Plaintiff on day-to-day basis including the dealing in cash and cheques and further that he was solely responsible for handling cash transactions and preparation and finalization of expense vouchers.
navita kumari bagha CS DJ No.430/2020 Digitally signed by Savelife Foundation navita kumari bagha Date: 2024.10.23 Vs. 18:08:10 +0530 Bhupendra Singh Tomar & Ors.
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35. The case of the plaintiff is that the modus operandi used by defendant no.1 to siphon off the funds of plaintiff was that he used to create and approve bogus expenses and vouchers, co-sign various "self" cheques to withdraw money from the bank account of plaintiff, make false entries of advances given to employees and create several entries in the accounting software "Tally" by user ID "bank" for which no proper narration or supporting invoices were provided. In para 32 of the plaint, the plaintiff had elaborated the aforesaid modus operandi of defendant no.1 for embezzling the funds of plaintiff, but while replying to said paragraph in the Written Statement, no specific denial of said modus operandi was made by defendant no.1. The Hon'ble Supreme Court has held in Gian Chand & Brothers Vs. Rattan Lal @ Rattan Singh, 2013(2) SCC 606 that evasive denial would amount to admission. It has been held by Hon'ble Supreme Court in Gian Chand's case (supra) as follows:
"Rules 3, 4 and 5 of Order 8 form an integral code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. It is navita kumari bagha CS DJ No.430/2020 Digitally signed by Savelife Foundation navita kumari bagha Date: 2024.10.23 Vs. 18:08:19 +0530 Bhupendra Singh Tomar & Ors.Page 41 of 58
obligatory on the part of the Defendant to specifically deal with each allegation in the plaint and when the Defendant denies any such fact, he must not do so evasively but answer the point of substance. It is clearly postulated therein that it shall not be sufficient for a Defendant to deny generally the grounds alleged by the Plaintiffs but he must be specific with each allegation of fact (see Badat and Co., Bombay v. East India Trading Co., AIR 1964 Supreme Court 538).
Rule 4 stipulates that a Defendant must not evasively answer the point of substance. It is alleged that if he receives a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received, and that if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
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Rule 5 deals with specific denial and clearly lays down that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the Defendant, shall be taken to be admitted against him."
(underlining added)
36. Since in the present case, the defendant no.1 has not specifically denied his modus operandi of embezzling the funds of the plaintiff, as mentioned in the plaint, therefore, in view of the aforesaid case-law, it is taken to be admitted by him.
37. Though the PW-2 categorically deposed during his cross-examination that the defendant no.1, during his interview, had confirmed that the primary control of accounting software (Tally) was with him and all the bank transactions and cash management, salary preparation and employees' payouts were managed primarily by him with the assistance of Accounts Officer and further that the bogus transactions as mentioned in Para 10 of Ex.PW-1/17 were created by Digitally signed by navita navita kumari kumari bagha CS DJ No.430/2020 bagha Date:
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him, but neither any question was put to him nor any suggestion was given to him to deny the said facts. Even the PW-1 and PW-3 had also categorically deposed about the aforesaid facts in detail in para 21 and paras 11-13 respectively of their affidavits of evidence, but no question or suggestion was put to them also to deny the same. It is settled law that if the opposite party fails to cross-examine a witness on a certain point, then the said party is deemed to have accepted the same as true. It is held by Hon'ble Supreme Court in Sarwan Singh Vs. State of Punjab, AIR 2002 SC 3652, "It is a rule of essential justice that whenever opponent has declined to avail himself of the opportunity to put his case in cross-examination, it must follow that evidence tendered on that issue ought to be accepted."
38. It is also held by Hon'ble High Court of Delhi in Satyendra Kumar Sharma Vs. Jitender Kudsia, 2005 DLT 498 that if a witness is not cross-examined on a particular point, then the opposite party must be deemed to have accepted truth of the statement. Since in the present case neither any question was put to PW-1, PW-2 or PW-3 nor any navita kumari bagha Digitally signed by navita kumari bagha CS DJ No.430/2020 Date: 2024.10.23 18:08:35 +0530 Savelife Foundation Vs. Bhupendra Singh Tomar & Ors.
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suggestion was given to them regarding the admissions made by defendant no.1 during his interview before the Audit Team regarding his having primary control of accounting software (Tally), having management of all the bank transactions and cash management, salary preparation and employees' payouts by him with the assistance of Accounts Officer and having created bogus transactions as mentioned in Para 10 of Ex.PW-1/17 by him, therefore, the said facts are deemed to be admitted by him.
39. The case of the plaintiff is that out of the total siphoned off amount of Rs.43,30,933/-, the amount of Rs.8,49,000/- was transferred by defendant no.1 from the bank accounts of plaintiff to his personal bank account through cheques which was over and above his salary. The PW-1, PW-2 and PW-3 have categorically deposed that the defendant no.1 had transferred an amount of Rs.22,07,061/- to his personal bank account through cheques, whereas his total salary for the period he worked with the plaintiff was Rs.13,58,961/- and thus the defendant had transferred Rs.8,49,000/- over and above his salary in his bank account through cheques issued from the account navita kumari of plaintiff. bagha Digitally signed by navita kumari bagha Date: 2024.10.23 18:08:41 +0530 CS DJ No.430/2020 Savelife Foundation Vs. Bhupendra Singh Tomar & Ors.
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40. The defendants have specifically admitted in their Written Statement, while replying to para 18 of the plaint, the salary structure of defendant no.1 as provided in para 18 of plaint. It is not disputed that the total salary drawn by defendant no.1 during the subsistence of his employment with plaintiff was Rs.13,58,961/-. Thus, it is established fact that there was excess amount of Rs,8,49,000/- in the bank account of defendant no.1 over and above his salary. Even the defendant no.1 (i.e. DW-1) has also admitted during his cross- examination dated 10.05.2023 that besides his salary, an additional amount of Rs.8 Lakhs approximately was deposited in his bank account. His wife i.e. DW-2 (defendant no.2) has categorically stated in her cross-examination that the defendant no.1 was not employed anywhere else during the subsistence of his employment with plaintiff and the salary received by him from plaintiff was the only source of income at that time. However, the defendant no.1/DW-1, during his cross-examination, stated that he had been giving tuitions to some students. But he deposed that neither he was having any proof of the same nor he had declared the alleged income from tuitions. It is also pertinent to mention here that nothing in this regard was stated by Digitally signed by navita navita kumari kumari bagha CS DJ No.430/2020 bagha Date:
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him in his Written Statement and thus the same is beyond pleadings. It is a settled law that the evidence, which is beyond pleadings, cannot be taken into consideration by the Court. The Hon'ble High Court of Delhi has held in Prakash Rattan Lal Vs. Mankey Ram, 2010(21) R.C.R.(Civil) 304 as follows:
"4. The sole purpose of pleadings is to bind the parties to a stand. When the plaintiff makes certain allegations, the defendant is supposed to disclose his defence to each and every allegation specifically and state true facts to the court and once the facts are stated by both the parties, the court has to frame issues and ask the parties to lead evidence. It is settled law that the parties can lead evidence limited to their pleadings and parties while leading evidence cannot travel beyond pleadings. If the parties are allowed to lead evidence beyond pleadings, then the sacrosanctity of pleadings comes to an end and the entire purpose of filing pleadings also stand defeated. The other purpose behind this is that no party can be navita kumari bagha CS DJ No.430/2020 Savelife Foundation Digitally signed by navita kumari bagha Vs. Date: 2024.10.23 18:08:50 +0530 Bhupendra Singh Tomar & Ors.Page 47 of 58
taken by surprise and new facts cannot be brought through evidence which have not been stated by the defendant in the written statement. The law provides a procedure for amendment of the pleadings and if there are any new facts which the party wanted to bring on record, the party can amend pleadings, but without amendment of pleadings, a party cannot be allowed to lead evidence beyond pleadings.
5. I am supported in this view by judgments of Supreme Court in AIR 1975 1 SCC 212; Harihar Prasad Singh & Ors. Vs. Balmiki Prasad Singh wherein the Supreme Court has held that evidence adduced cannot travel beyond the pleadings. In AIR 1987 2 SCC 555; Ram Sarup Gupta by LRs Vs. Bishun Narain Inter College & Ors., the Supreme Court again reiterated that the evidence cannot travel beyond the pleadings."
41. The Hon'ble Supreme Court of India has held in Ram Sarup Gupta by LRs v. Bishun Narain Inter College & Ors., AIR 1987 2 SCC Digitally signed by navita navita kumari kumari bagha CS DJ No.430/2020 bagha Date:
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555 as follows:
"It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise."
42. Thus, it is settled law that the evidence cannot travel beyond the pleadings and that in the absence of pleadings, evidence, if any, produced by the parties cannot be considered. Since in the present case, the defendant no.1 has not pleaded in his Written Statement regarding his having any income from tuitions, therefore, his evidence on this point, in the absence of pleadings, cannot be taken Digitally signed by navita navita kumari kumari bagha bagha Date:
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into consideration. Moreover, he himself has stated that he does not have any proof of the same. Hence, the said plea is not going to benefit him in any manner.
43. Apart from the amount of Rs.8,49,000/- transferred through cheques in the bank account of defendant no.1 over and above his salary, the further case of the plaintiff is that the defendant no.1 had deposited cash amount of Rs.34,81,933/- in his bank account after withdrawing the said amount from the account of plaintiff through "self" cheques, for which he has not filed any vouchers or supporting documents. Despite plaintiff's categorical and detailed averment in this respect in para 36 of plaint, no specific denial was made by defendants in their Written Statement while replying to said paragraph. It is also pertinent to mention here that neither the defendant no.1 has pleaded nor proved that he had furnished any voucher(s) for the said withdrawals.
44. Regarding the aforesaid cash deposits, the defendant no.1 (DW-1) deposed during his cross-examination that the said cash deposits as reflected in his bank account were received by him from his relatives/committees. But it is pertinent to mention here that not even Digitally signed by navita navita kumari kumari bagha bagha Date:
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an iota of anything in this regard was mentioned by him in the Written Statement and it was for the first time that he raised this plea during his cross-examination. Thus, the same is beyond pleadings and cannot be relied upon. Moreover, he has also admitted during his cross-examination that he has no proof of his taking any loan from his relatives in cash or from any committee. Thus, the defendant no.1 has utterly failed to prove that apart from the salary received by him from plaintiff, he had any other source of income or that he had received any cash deposits from his relatives or committees. Thus, the defendant no.1 has failed to account for the amount of Rs.8,49,000/- (received over and above his salary) and cash deposits to the tune of Rs.34,81,933/- in his bank account.
45. The PW-3 has categorically deposed in his affidavit of evidence as well as during his cross-examination that the defendant no.1 had embezzled Rs.43 Lakhs approximately, out of which Rs.8,49,000/- were through bank transactions, whereas Rs.34,81,933/- were through cash transactions and the total amount of Rs.27 Lakhs as mentioned in Appendix 6 of Audit Report Ex.PW-1/17, withdrawn from plaintiff's accounts, was deposited by defendant no.1 in his bank Digitally signed by navita navita CS DJ No.430/2020 kumari kumari bagha Savelife Foundation bagha Date:
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account, which was mostly deposited either on the same day or within seven days of withdrawal of cash from plaintiff's bank accounts. But no suggestion was given to him in this regard to deny the said facts. So, in the absence of any question/suggestion in cross-examination to deny the aforesaid facts, the same are deemed to be admitted by the defendant no.1.
46. In para 34, 35, 36 and 37 of the plaint, the plaintiff had given the details of the transactions made by defendant no.1 vide which he siphoned off the funds of the plaintiff, but while replying to said paragraphs in the Written Statement, no specific denial of said transactions was made by him. The reply to said paragraphs as given in Written Statement is as follows: "That the contents of para No.34 to 37 of the plaint are false, wrong and denied in toto." This is nothing but an evasive denial and as stated above, the evasive denial is equivalent to admission.
47. During the final arguments, the counsel for defendant no.1, 2 & 5 argued that the Forensic Audit Report i.e. Ex.PW-1/17 is not reliable as the PW-3 was not possessing required qualification to conduct forensic audit and further that as per PW-3 the academic course of navita kumari bagha CS DJ No.430/2020 Digitally signed by navita kumari bagha Savelife Foundation Date: 2024.10.23 18:09:35 +0530 Vs. Bhupendra Singh Tomar & Ors.
Page 52 of 58
forensic audit was not available with ICAI prior to the year 2019, so, forensic audit was not permissible prior to 2019 whereas the forensic audit was conducted in the present case in the year 2018. But I do not find any merit in his contention as the PW-3 has categorically stated that any member of ICAI who is in practice can do forensic audit and no question/suggestion was given to him to deny the same and moreover, non-availability of academic course of forensic audit with ICAI does not mean that the forensic audit was not legally permissible. The counsel for plaintiff has argued that the forensic audit was recognized and permissible under the law much prior to 2019 as evident from Companies Act, 2013 more particularly Sec.221 of Companies Act, 2013. I find force in her contention. It is also pertinent to mention here though the counsel for defendants has raised objection during final arguments regarding the authority of PW- 3 to conduct forensic audit, but at no stage the bank entries or cash transactions, which form part of forensic audit report, have been denied by the defendants, meaning thereby that the said entries have been admitted by them. From the said entries, it has been duly established that a sum of Rs.22,07,961/- was transferred by Digitally signed by navita navita kumari kumari bagha bagha Date:
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defendant no.1 in his personal bank account from the bank accounts of plaintiff through "self" cheques, whereas his total salary for the period he worked with the plaintiff was Rs.13,58,961/-, meaning thereby that there was unaccounted amount to the tune of Rs.8,49,000/- over and above his salary in his bank account. His wife (DW-2) has categorically admitted that apart from the salary, he was not having any other source of income. He did not state in Written Statement anything about any other source of income, but for the first time he stated in his cross-examination that he used to give tuitions. But he failed to prove the same. Apart from the aforesaid bank transactions, there are numerous entries in his bank statement pertaining to cash deposits for which he could not furnish any explanation. As per the statement of account of plaintiff, the defendant no.1 had withdrawn a total amount of Rs.40,27,700/- from the bank accounts of plaintiff and out of said amount, the legitimate vouchers and supporting documents were available only for Rs.5,45,767/-, meaning thereby that the defendant no.1 could not account for the withdrawal of remaining amount of Rs.34,81,933/-. The statement of account of joint bank account of defendant no.1 & 2 reflects entries of navita kumari bagha Digitally signed by navita kumari bagha CS DJ No.430/2020 Date: 2024.10.23 18:09:51 +0530 Savelife Foundation Vs. Bhupendra Singh Tomar & Ors.Page 54 of 58
cash deposits corresponding to withdrawals made by defendant no.1 from the bank accounts of plaintiff and the said entries also reflect that the amount was deposited either on the same day or within a period of a week of withdrawal from plaintiff's accounts. Though, nothing was stated by defendants in Written Statement about taking loan by defendant no.1 from his relatives/committees, but during his cross-examination, he (DW-1) stated for the first time that he had taken loan/cash from his relatives/committees regarding which cash deposits were reflected in his statement of account. But as held above the same is beyond pleading and further that the defendant no.1/DW- 1 has admitted that he does not have any proof of the same. Even the DW-3 (i.e. defendant no.5) has admitted in his cross-examination that neither he had filed any proof of VRS or amount received in lieu of VRS nor entered into any loan agreement with defendant no.1. He also admitted it as correct that his testimony regarding extending loan to defendant no.1 was beyond pleadings. Thus, the said plea appears to be nothing but a result of afterthought. Hence, it is clear that the defendant no.1 has failed to account for the withdrawal of Rs.34,81,933/- from the accounts of plaintiff, out of which Digitally signed by navita navita kumari kumari bagha bagha Date:
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Rs.27,26,000/- have been deposited in his bank account. Hence, it stands proved that the defendant no.1 has siphoned off Rs.43,30,933/- (Rs.8,49,000/- + Rs.34,81,933/-) belonging to plaintiff and therefore, he is liable to repay the said amount to plaintiff.
48. The plaintiff has filed present case for making all the five defendants jointly and severally liable for the embezzled amount. But the case of the plaintiff is that the defendant no.1 had siphoned off the money of plaintiff. Even the plaintiff's own witness i.e. PW-3 has also categorically deposed during his cross-examination that as per the forensic audit report Ex.PW-1/17, the defendant no.1 was the only person responsible for the embezzled amount. Since, the defendant no.1 has committed the embezzlement, therefore, only he would be liable for the same. The other defendants could not be made jointly and severally liable to refund the embezzled amount simply because some of the said amount was deposited by defendant no.1 in their accounts.
Hence, the present suit is liable to be decreed in favour of the plaintiff and against the defendant no.1 with respect to the embezzled amount of Rs.43,30,933/-. This issue is decided accordingly in favour of the plaintiff and against the defendant no.1. Digitally signed by navita navita bagha kumari kumari Date:
bagha 18:10:04 2024.10.23 CS DJ No.430/2020 +0530 Savelife Foundation Vs. Bhupendra Singh Tomar & Ors.Page 56 of 58
ISSUE NO.2 Whether Plaintiff is entitled to interest, if yes, at what rate and for what period?
49. The plaintiff has claimed interest (pendent-lite and future) @18% per annum. The facts narrated hereinabove clearly show the defendant no.1 has siphoned off the money belonging to plaintiff and has driven the plaintiff to series of litigations and therefore, it is the duty of the Court to see that the party, who has been wrongly denied the use of its own money, is appropriately compensated in terms of interest. But at the same time, this Court is conscious of the fact that the claimed rate of interest in quite exorbitant. This Court is of considered opinion that the ends of justice would sufficiently meet if the plaintiff is granted pendent-lite interest @ 12% per annum i.e. from 25.09.2020 (date of filing of present suit) till the date of this order and future interest @ 6% per annum till realization. Hence, this issue is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NO.3 Digitally
signed by
navita
navita kumari
kumari bagha
Date:
bagha 2024.10.23
18:10:18
+0530
CS DJ No.430/2020
Savelife Foundation
Vs.
Bhupendra Singh Tomar & Ors.
Page 57 of 58
Whether the Plaintiff is entitled to decree of rendition of account as prayed in clause-B?
50. Though the plaintiff had sought the relief of rendition of accounts apart from the decree of recovery of money, but during the final arguments, the counsel for plaintiff submitted that the plaintiff is not pressing for the relief of rendition of accounts as it has not led any evidence on this point. Even in the written submissions filed on behalf of plaintiff on 14.10.2024, it has been specifically mentioned that the plaintiff is not pressing for the third issue pertaining to the decree of rendition of account. Hence, no decree of rendition of accounts is passed.
RELIEF:
51. In view of the aforesaid analysis and discussion, the present suit is decreed in favour of the plaintiff and against the defendant no.1 for a sum of Rs.43,30,933/- (Rupees Forty-Three Lakhs Thirty Thousand Nine Hundred and Thirty-Three only) alongwith pendent-lite interest @ 12% per annum i.e. from 25.09.2020 (date of filing of present suit) till the date of this order and future interest @ 6% per annum till Digitally signed by navita navita kumari CS DJ No.430/2020 kumari bagha Savelife Foundation bagha Date:
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realization. Cost of the suit is also awarded in favour of the plaintiff.
52. Decree-sheet be prepared accordingly. File be consigned to Record Room after necessary compliance. Digitally signed by navita navita kumari bagha kumari Date:
(Announced in open bagha 2024.10.23 18:10:59 Court on 23.10.2024) +0530 (Navita Kumari Bagha) DJ-02, South-East District, Saket Courts, New Delhi CS DJ No.430/2020 Savelife Foundation Vs. Bhupendra Singh Tomar & Ors.