Delhi District Court
Cbi..... vs .....S.K.Arora And Others. on 18 January, 2007
1 IN THE COURT OF SHRI GP MITTAL : SPECIAL JUDGE: DELHI. CBI.....VS.....S.K.ARORA AND OTHERS. Order on charge. 1.
I have heard Shri S.Islam, Learned. Public Prosecutor on behalf of CBI., Shri R.D.Sawhney, advocate for accused S.K.Arora, and Shri D.C.Mathur, Senior Advocate, assisted by Shri Mohit Mathur, Advocate on behalf of accused Ashok Mehra and Padam Kumar.
2. Briefly put the case of the prosecution is that in the year 1991 accused SK Arora was working as Manager , Oriental Bank of commerce, Basant Lok Branch, New Delhi. On 19.4.91, he allowed a current account no.936 to be opened in the name of M/s. Oxford Travels (P) Ltd. with Shri Roopak Bajaj and Deepak Bajaj as its Directors. This account was being operated only by Late Roopak Bajaj (Roopak Bajaj has expired during the course of investigation and therefore, his name has been shown in Column No.2 of the Charge Sheet). Accused SK Arora sanctioned over draft facilities in this account upto Rs.1,68,750/-, which were ultimately increased to the tune of Rs.13,62,253.45p as on 30.9.93. To adjust the said over draft facility, accused SK Arora sanctioned demand loan DL 21 on 10.10.93 for Rs.7,01,000/- in the name of Roopak Bajaj. Except for document D.3, which is the ledger sheet of this account, the other papers are not available in the branch.. Accused SK Arora then opened account nos. DL 49 and DL 50 in the name of Oxford Travels and Roopak Bajaj for Rs.3,88,926/- and 2 Rs.3,32,000/- to adjust the outstanding of the loan account DL 21. The prosecution has placed on record document D.19, which is the ledger sheet of account no. DL 49 and document D.4 which is the ledger sheet of a/c no DL .50. Again the other loan documents and vouchers are not available on the record of the bank. According to the case of the prosecution, accused SK Arora went on opening various accounts to adjust the accounts which were being opened in connivance with accused Roopak Bajaj, so that the illegality in grant of various loan facilities may not come to the notice of any person. Account no.DL 79 was sanctioned in the name of Oxford Travels on 3.4.94 for Rs.4,02,527/- to adjust outstanding in Account no.DL 49. Similarly account no. DL 78 was sanctioned in the name of Roopak Bajaj on 3.4.94 for Rs.3,43,610/- to adjust the outstanding of account no. DL 50. Ledger sheets, Document D5 and D6 , refers to account nos. DL no.78 and DL 79 respectively. During investigation, it was also revealed that accused SK Arora had signed as Moti Ram on Form No. LD5 relating to account no. DL no.79. The amount outstanding in account no. DL78 was carried over to account R.78 which was opened in the name of Roopak Bajaj on 12.1.95. Another account R.79 was opened in the name of Oxford Travels and the outstanding lying in DL 79 was carried over to account no. R.79 on 12.1.95. The outstanding in account R.78 as on 8.5.95 was Rs.400317/- whereas in account no. R.79 was Rs.4,80,349/-. Accused SK Arora then opened accounts DL 104 and DL 105 in the name of Roopak Bajaj and Madhu Bajaj and Madhu Bajaj and Roopak Bajaj respectively for Rs.9,38,806/- and Rs.8 lacs respectively and the outstanding in account nos. R.79 and R.78 3 was adjusted.
3. Investigation revealed that an account no.1153 was also opened on 11.6.92 in the name of M/s. House of Travels with Madhu Bajaja as its proprietor by accused SK Arora as manager of Basant Lok Branch of Oriental Bank of Commerce (OBC). Accused Roopak Bajaj since deceased was authorized signatory in this account . Accused SK Arora sanctioned over draft facility for Rs.9.7 lacs in this account and as on 7.10.93 the account was showing over draft of Rs.8,18,442.50p .To adjust outstanding in account no.1153 accused SK Arora opened account DL .22 in the name of Madhu Kumar. Outstanding of A/c. no.DL22 was transferred to A/c.no. DL 52 and thereafter outstanding amount in A/c.no.DL52 was carried over to new ledger sheet R.52 in the name of Madhu Kumar on 12.1.95 with outstanding of Rs.8,30,287/-. Outstanding in this account as on 8.5.95 was Rs.8.58,140/- . The amount from account nos. DL 104 and DL 105 as stated above was also used to clear the amount outstanding in R.52 in the name of Madhu Kumar.
4. It is the case of the prosecution that account no.10742 was opened on 12.4.96 at Basant Lok Branch by accused SK Arora in the fictitious name of Kamal Kumar Ramesh Chand by transfer of an amount of Rs.85 lacs from certain FDRs. According to the case of the prosecution, this amount of Rs.85 lacs standing in the FDRs was the black money belonging to accused Ashok Mehra , which had been given by him to accused SK Arora. The outstanding amount in A/c. nos. DL 104 and DL 105 to the tune of 4 Rs.10,59,295/- and Rs.9,27,645/- respectively as on 13.4.96 was adjusted from account no.10742 in the name of Kamal Kumar Ramesh Chand.
5. Accused SK Arora was then transferred to Mahipalpur Branch of OBC where he joined his duties on 15.4.96. An account no.12367 was opened in the fictitious name of Kamal Kumar Ramesh Chand on 17.4.96 at Mahipalpur Branch with signatures of accused Padam Kumar, who was the employee of accused Ashok Mehra. It is alleged that accused SK Arora has verified the signatures of Padam Kumar for opening the account in the name of Kamal Kumar Ramesh Chand. An amount of Rs.28,44,974 was transferred from account no.12367 in the name of Kamal Kumar Ramesh Chand in Basant Lok vide TPO No.936756/178/96.
6. It is the case of the prosecution that accused SK Arora opened DL 867 for Rs.19,86,940/- on 24.4.96 in the name of M.Bajaj on the strength of a fake FDR of Rs.20 lacs (D.542) and on the same day he transferred the said amount to account no.12367 of Kamal Kumar Ramesh Chand . The outstanding inA/c no. DL 867 with interest product came to Rs.2065450/- as on 31.3.97. Accused Ashok Mehra got issued cheque books from account no.12367 and withdrew an amount of Rs.22,00,000/- through cheques D.547, D.551, D.552 and D.557. According to the prosecution GEQD has confirmed the signatures of Ashok Mehra signing as Kamal Kumar on the said cheques.
7. A current account no.1549 in the name of House of Travels was opened on 17.3.96 at Mahipalpur Branch and Over Draft (OD) of 5 Rs.20 lacs was sanctioned in this account against security of fake FDRs . On 17.4.96 a TPO for Rs.17,11277.17p was issued to adjust the O.D. in the C.A.1153 of House of Travels at Basant Lok Branch. According to the prosecution, there was an outstanding of Rs.20,65,450/- in A/c.no. DL 867 and an amount of Rs.29,94,260/- in Current Account (CA) 1549 of M/s. House of Travels as on 31.3.97. It is alleged that accused SK Arora , deceased Roopak Bajaj, accused Padam Kumar and accused Ashok Mehra entered into a conspiracy to cheat the bank and for that purpose had forged signatures on various documents and had used false documents as genuine. Total outstanding in A/c.DL 867 was Rs.2065450/- and in Current Account no.1549 of M/s. House of Travels was Rs.2994260/- . Thus, the bank was cheated for an amount of Rs.5059710/- .
8. It has been urged by the learned Public Prosecutor that sufficient evidence did not come to the notice of investigating agency against Madhu Bajaj whose name has been kept in Column no.2. Learned. Public Prosecutor has submitted that the signatures of Madhu Bajaj except on the account opening form did not tally with his standard signatures, as per report of GEQD. The Learned.P P also referred to the statements U/s. 161 Cr.P.C. of Sanjiv Sawhney dt. 15.10.99, KK Dogra witness no.6 dated 15.10.99 and the statement of Mrs. Madhu Bajaj herself to show that accused Madhu Bajaj had never visited the bank and her signatures on the cheques have not been found to be genuine.
69. Shri RD Sawhney, advocate has preferred not to address any arguments except that if accused Padam Kumar and Ashok Mehra are to be discharged, then the only accused who remains is accused SK Arora . Since accused Roopak Bajaj is already dead, there cannot be any conspiracy and accused SK Arora is entitled to be discharged in that event.
10.On the other hand, it has been urged by Shri Dinesh Mathur, Learned Senior advocate that it is the case of the prosecution that accused Ashok Mehra had given his black money amounting to Rs.85 lacs to accused SK Arora. It was accused SK Arora, who had used part of the said money of his own to open certain accounts and to adjust various D.L accounts opened by him. Shri Dinesh Mathur has taken me through page 9 of the report U/s. 173 Cr.P.C. where it is stated that accused Ashok Mehra was running firms in the name and style of M/s. Mehra Constructions and M/s. Mehra Builders engaged in construction business and was maintaining bank accounts in OBC Basant Lok Branch. It is also mentioned in the report U/s. 173 Cr.P.C. that accused Ashok Mehra declared his black money amounting Rs.1.50 crores during Voluntary Disclosure Scheme (VDS) in 1997-98 and had also paid requisite tax. Shri Dinesh Mathur further read out the report U/s. 173 Cr.P.C. wherein it is written that in April 1996 when accused Ashok Mehra contacted accused SK Arora to get his money back he was informed that entire money has been fraudulently transferred to benami account of Kamal Kumar Ramesh Chand. It has been urged that till April 1996 accused Ashok Mehra was not in conspiracy with the accused persons and it was only on 17.4.96 7 that account no.12367 was opened in the name of Kamal Kumar Ramesh Chand. It has been submitted that even if the case of prosecution is accepted as it is, neither accused Padam Kumar nor accused Ashok Mehra has committed any offence in withdrawing the amount of Rs.15 lacs on 17.4.96.It has been argued that even if accused Ashok Mehra had opened an account in assumed name of Kamal Kumar Ramesh Chand with signatures of his employee Padam Kumar as is alleged by the prosecution , even then there was no intention to cause wrongful loss to the bank or wrongful gain to accused Padam Kumar and Ashok Mehra and thus accused Ashok Mehra and Padam Kumar cannot be said to have committed any offence. The learned defence counsel has referred to Dr. Vimla.vs.Delhi Admn. AIR 1963 SC 1572 , on the proposition that when there is no injury to the person deceived the accused cannot be held guilty U/s. 467 and 468 IPC. He has also referred to Kartongen Kemi Och. Forvalttning AB.VS.State (through CBI), 2004 (I) JCC 218 and has urged that since main accused Roopak Bajaj is dead the evidence of conspiracy cannot be led. It has been urged that the bank has already returned 95 percent of the amount paid by accused Ashok Mehra . The accused Padam Kumar and Ashok Mehra are therefore entitled to be discharged.
11.It is very well settled law that at the stage of framing of the charge the truth, veracity and effect of the evidence, which the prosecutor proposes to adduce are not to be meticulously judged . A very strong suspicion founded upon materials before the Magistrates which leads him to form presumptive opinion as to the existence 8 of factual ingredients constituting the offence alleged may justify the framing of the charge against the accused in respect of the commission of the offence .(See Supdt. And Remembrancer of Legal Affairs W.B..vs. Anil Kumar Bhunja, AIR 1980 SC 52 and State of Bihar.vs.Ramesh Singh, AIR 1977 SC 2018). At the same time the court has got the powers to sift and weigh evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
12.As far as accused SK Arora is concerned , there is sufficient material against him for presuming that he had entered into conspiracy with Roopak Bajaj (since deceased) . Both of them were in conspiracy with each other, had opened various D.L. Accounts i.e. DL 21, DL 22, DL 49, DL 50, DL 52, DL 78, DL 79 , R,.78, R,79, DL 104 and DL 105 apart from some genuine accounts. Even if Roopak Bajaj is dead, there is no bar to lead evidence of conspiracy between Roopak Bajaj (now deceased) and accused SK Arora. It may be a different case where there are several accused persons charged with the offence of conspiracy and all except one are acquitted by the court. Obviously, in such a case the charge of conspiracy cannot be sustained against a single person because it always needs atleast two to have a conspiracy. In Narain Lal Nirala.vs.State of Rajasthan, 1993 Cri.LJ 3911, accused Narain Lal Nirala had died during pendency of appeal, but the other appellant was convicted in respect of the charge of conspiracy with Narain Lal Nirala deceased. There are grounds for presuming that accused SK Arora has committed offence punishable U/s. 120-B IPC read with 13(2) read with 13(1)(d) of PC Act, 420, 467, 9 471 IPC and substantive offence U/s. 13(2) r/w 13(1)(d) of PC Act , and Section 420 , 467 and 471 of IPC .The charges be framed accordingly.
13.As far as accused Padam Kumar and Ashok Mehra are concerned, they had enjoyed the fruits of account no.DL 867 to which the money had been fraudulently put by accused S.K.Arora. Account 12367 was opened in a fictitious name with the signatures of accused Padam Kumar and the cheques D.547, D.551, D.552 and D.557 were signed by accused Ashok Mehra in the name of Kamal Kumar and amount of Rs.22,00,000/- was withdrawn from account no.12367. This is true that association of accused with one of the main accused or even his knowledge about conspiracy would not make him a conspirator, but at the same time a person can join the conspiracy at any stage. This is true that right from 1991 till 17.4.96 no agreement of conspiracy can be imputed to accused Ashok Mehra and Padam Kumar, inspite of the fact that an account no.17042 in the name of Kamal Kumar Ramesh Chand had been opened even in Basant Lok Branch on 12.4.96, but no document is available to show that either accused Padam Kumar or accused Ashok Mehra were responsible for opening that account.
14.Dr. Vimla's case (AIR 1963 SC 1572 ) relied upon by Ld. defence counsel is not applicable to the facts of the present case. In the said case, it had been found that accused had purchased a motor car with her own money in the name of her minor daughter Nalini, had the insurance policy transferred in the name of said 10 Nalini and received compensation for the claims with regard to two accidents to the car. The claims were true claims and she received the money by signing in the claim forms and also in the receipts as Nalini. In the said case, it was also found that Nalini was either a benamidar for the accused or her name was used for luck or other sentimental considerations. On the facts found, neither the accused got any advantage either pecuniary or otherwise by signing the name of Nalini in any of the said documents nor the Insurance Company incurred any loss, penuniary or otherwise, by dealing with the accused in the name of Nalini. The Insurance Company would not have acted differently even if the car had stood in the name of the accused and she had made the claims and received the amounts from the insurance company.
15.In the instant case, fictitious account no.12367 has been opened in the name of Kamal Kumar Ramesh Chand and accused Padam Kumar has signed as Kamal Kumar and accused Ashok Mehra has withdrawn Rs.22 lacs, whereas more than Rs.19 lacs have been transferred to that account from account no. DL 867 . Thus, there was pecuniary loss to the bank. From the evidence collected by the investigating agency, it can be said at this stage that accused Ashok Mehra and Padam Kumar had joined the conspiracy on 17.4.96 and had subsequently withdrawn the amount from this account , which had been transferred from DL Account 867 in the name of M.Bajaj. The case referred to "Kartongen Kemi Octt. Forvalttning AB(Bofors Case)(2004 (I) JCC 218 , relied upon by ld. defence counsel is also not applicable to the facts of the present 11 case as here the evidence is not to be led against Roopak Bajaj, who is already dead, but evidence of conspiracy between a deceased person and several alive persons can always be led by the prosecution.
16.Thus, there are grounds for presuming that accused Padam Kumar has committed offence punishable U/s. 120-B IPC read with Sections 13(2) r/w 13(1)(d) of PC Act and Sections 420,467,468 and 471 IPC and substantive offence U/s. 467 and 471 IPC.
17.Similarly, there are sufficient grounds for presuming that accused Ashok Mehra has committed an offence punishable U/s. 120-B IPC read with Sections 13(2) r/w 13(1)(d) of PC Act and sections 420, 467, 468 and 471 IPC substantive offences U/s. 420, 467, 468 and 471 IPC.
Charges against the accused persons be framed accordingly.
Announced in open court. ( G.P.Mittal )
dt.18.1.2007 Special Judge: Delhi
12