Delhi District Court
Cbi vs . E. Krishnamurthy Etc. on 27 May, 2014
CBI Vs. E. Krishnamurthy Etc.
RC No.16A/03
AC No.31/11/05
1
Date:-27.05.2014
IN THE COURT OF RAJIV MEHRA
SPECIAL JUDGE CBI (PC ACT)
KARKARDOOMA COURTS : EAST DISTRICT
DELHI
Unique ID No.02402R0284762005
RC No.16A/03
AC No.31/11/05
C.B.I.
VERSUS
1. E. Krishnamurthy
S/o Late Sh. Laxmi Narayanan,
R/o 343, Sector 16, Faridabad,
Haryana
2. Rajinder Goel ( Since deceased )
S/o Sh. Ram Kumar
R/o 26/46, Shakti Nagar,
Delhi
3. Jitender Gupta
S/o Sh. K.C. Gupta
R/o 41, Ashirwad Apartment,
74 I.P. Extension,
Delhi-92
4. Deepak Goel
S/o Late Sh. Rajinder Goel
R/o H.No. 65, Sector- I,
Vasundhara, Ghaziabad,
U.P.
5. Dheeraj Kumar Mehra
S/o Sh. Shankar Lal
R/o B-37, Avantika,
Sector-I, Rohini, Delhi
CBI Vs. E. Krishnamurthy Etc.
RC No.16A/03
AC No.31/11/05
2
Date:-27.05.2014
JUDGMENT
1. This case has been registered on 10.03.2003 on the complaint of A.V.S.N. Murthy, DGM, Andhra Bank. As per the allegation in FIR a written complaint dated 17.02.2003 from Sh. AVSN Murthy addressed to SP, CBI has been made against Rajender Goel, proprietor of M/s Jyoti Impex and Sh. E. Krishnamurthy, the then Branch Manager, Vishwas Nagar Branch, Andhra Bank for cheating the bank to the tune of Rs.30.24 lacs.
2. As per the allegations in the FIR, E. Krishnamurthy functioning as Branch Manager Vishwas Nagar Branch, Andhra Bank during the period between May 2000 to December 2000 allowed credit facility to Sh. Rajender Goel, proprietor of M/s Jyoti Impex, 421, First Floor, Kucha Brijnath Chandni Chowk, Delhi-6 without making pre sanction verification/enquiries and without verifying the authenticity of collateral security offered by borrower and thereby caused wrongful loss to the bank and corresponding wrongful gain for themselves/others.
3. Accordingly a case u/s 120-B IPC r/w 420/467/468/471 IPC and Section 13(2) r/w 13(1)(d) of P.C. Act, 1988 was registered. After investigation the charge sheet has been CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 3 Date:-27.05.2014 accordingly filed in the court.
4. The prosecution case is that Rajender Goel, proprietor of M/s Jyoti Impext had submitted an application for opening of a current account on 04.08.2000 at Andhra Bank, Vishwas Nagar. This account was introduced by Nikhil Trading Company with a/c no. 2932 and M/s Rishikesh Bombay Road Lines with account no. 2115.
5. As per charge sheet M/s Nikhil Trading Company is an accused firm in a CBI case no. RC DAI-2003-A-0017 dated 10.03.2003 and as per the charge sheet, the proprietor Ashok Singhal is not traceable.
6. It has been alleged in the charge sheet that M/s Bombay Roadlines with account no. 2115 have closed their bank account and account holder was not traceable.
7. As per the allegation in the charge sheet A2 Rajender Goel had opened an account in Andhra Bank, Vishwas Nagar and thereafter he applied for OCC facility of Rs.25 Lacs initially and subsequently vide letter dated 29.09.2000 applied of OCC facility of Rs.30.24 Lacs against stocks of fabrics, electronics, cosmetics and collateral security of a property at plot no. 9, MB 80, CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 4 Date:-27.05.2014 Shakarpur Khas, area 200 sq. meters. It is alleged in the charge sheet that as per photocopy of the sale deed dated 06.04.1965 submitted in the bank alongwith application for OCC Limit by A2 Rajender Goel, the address of the property was plot no. 9, area 200 sq. yards out of Khasra no. 293/294/190, Village Shakarpur Khas, Ilaqa Shahdara, Delhi. This property was in the name of Sh. Prakash Chand Jain r/o 995/178/D Jain Mohalla, Kailash Nagar, Shahdara, Delhi.
8. It is alleged in the charge sheet that during investigation the above address was not found in existence and Prakash Chand Jain was also not traceable.
9. It is alleged in the charge sheet that as per the revenue records plot no. 9 was not in existence in khasra no. 293/294/190, village Shakarpur Khas Ilaqa Shahdara. As per charge sheet in this khasra hundreds of houses were found in existence and plot/house no. starts from S-1065 onwards.
10. As per charge sheet alongwith application for OCC Limit A2 Rajinder Goel also submitted property statement with photograph of Prakash Chand Jain. As per the photocopy of the sale deed the property was sold to Prakash Chand Jain by Sh. Jawahar Lal s/o Narsing Dass on 06.04.1965.
CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 5 Date:-27.05.2014
11. It is alleged in the charge sheet the photograph in the property statement was shown to Jawahar Lal and on having seen the photograph Jawahar Lal said that person in photograph is not the one to whom the property was sold by him in 1965.
12. The prosecution case is that A2 Rajender Goel produced different person to impersonate Prakash Chand Jain and A1 E. Krishnamurthy who was working as Manager of Andhra Bank, Vishwas Nagar Branch, in conspiracy with him accepted the property statement without the mandatory pre-sanction verification/enquiry of the authenticity of the person offering collateral security.
13. The further case of the prosecution in the charge sheet is that plot no. 9, Municipal Block No. 18 mentioned in the application by A2 Rajender Goel (borrower) exists in khasra no. 479 and not in the khasra no. 293/294/190. It has been alleged in the charge sheet that the khasra no. 479 is owned by one Tek Chand Sharma.
14. It has been alleged in the charge sheet that A2 Rajender Goel submitted a balance sheet for 31.03.1999 and 31.03.2000 and projected balance sheet for 31.03.2001. It has CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 6 Date:-27.05.2014 been alleged in the charge sheet that seal affixed in the balance sheet was also found fake during investigation.. It has been alleged that the A2 Rajender Goel (borrower) has also produced MCD's letter of mutation dated 26.05.1996 and tax receipt dated 22.08.1999 in respect of property no. 80 MB, Shakarpur, Laxmi Nagar, Delhi and as per investigation both these documents were forged.
15. It has been alleged in the charge sheet that bank obtained legal opinion from M/s Vats Gupta and Co., Advocates and Solicitors and the advocate has given a legal opinion regarding genuineness of the sale deed. It was suggested in the opinion that actual physical possession of the property is required to be verified by the bank.
16. It has been alleged in the charge sheet that report of valuation of property was submitted by A3 Jitender Gupta vide report no. Cat-I-264 of 1994 dated 01.10.2000 to the bank. It has been alleged that the address of property mentioned in the valuation report was plot no. 9, M.No. 80, MB Shakarpur, Laxmi Nagar, Khasra no. 293/294/190 Village Shakarpur Khas, Ilaqa Shahdara, Delhi-32. As per this report given by accused no. 3 is the property under valuation is a triple storey building and it is in the possession of the owner and hence they adopt land and CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 7 Date:-27.05.2014 building method for arriving at the Fair Market Value of the property specifications of the building are moderate. As per the investigation it has been alleged in the charge sheet that the property at MB 80, Shakarpur is pertaining to Khasra no. 479 in the ownership of Sh. Tek Chand Sharma who has purchased this property in the year 1970 from Sh. Balwant Singh S/o Sh. Sahib Dayal and the property is in the occupation of Sh. Satvir Sharma S/o Sh. Tek Chand Sharma and the further prosecution case is that during investigation the owner of the property had stated that A3 Jitender Gupta never visited his residence. It has been alleged that the site inspection by the technical officer from CBI and other witnesses including the accused A1 E. Krishnamurthy at MB 80, Shakarpur has revealed that the total plinth area of the said property as well as the number of floors were different from details mentioned in the report submitted by A3 Jitender Gupta. It is alleged that during the site inspection Jitender Gupta was asked to join but he declined to join.
17. It has been alleged in the charge sheet that A3 Jitender Gupta submitted false valuation report in respect of the abovesaid property and he moved one application for anticipatory bail and in the course of hearing his bail application the court on two occasions on 26.04.2004 and 30.04.2004 directed Jitender Gupta to get the property identified and on both the occasions the CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 8 Date:-27.05.2014 accused Jitender Gupta showed the property which was different from the property used as collateral security.
18. The prosecution case in the charge sheet is that on accepting the forged documents submitted by A2 Rajender Goel and the fictitious valuation report submitted by A3 Jitender Gupta, A1 E. Krishnamurthy in conspiracy with them sanctioned the OCC Limit of Rs.30.24 lacs.
19. The further case of the prosecution is that in order to defraud the funds of Andhra Bank, Vishwas Nagar Branch, accused Rajender Goel has conspired with his employee A5 Dhiraj Kumar Mehra and his son A4 Deepak Goel and in pursuance of the criminal conspiracy one current account was opened in Andhra Bank, Chandni Chowk Branch with account no. 2617 in the name of Krishna Textiles, 425/24, Kucha Brijnath, Chandni Chowk, Delhi- 6 and Dhiraj Kumar as its proprietor. It has been alleged in the charge sheet that towards the proof of address of Krishna Textiles 425/24 Kucha Brijnath a rent agreement was submitted to the bank which was between Rajender Goel and Dhiraj Kumar. The prosecution case is that owner of the said premises no. 425/24 was Rajender Goel and Dhiraj Kumar was his employee. It has been alleged in the charge sheet that Krishna Textiles never functioned at the given address.
CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 9 Date:-27.05.2014
20. The prosecution case is that the accused Rajender Goel after obtaining sanctioned limit of Rs.30.24 Lacs issued five cheques on different dates favouring M/s Krishna Textiles from his OCC at Andhra Bank, Vishwas Nagar branch and they were deposited by Dhiraj Kumar in the current account and subsequently the amount was withdrawn. and total amount of the cheques was Rs.6,44,466/- and all the details of the same are given at page 6 of the charge sheet.
21. The further prosecution case is that Dhiraj Kumar also floated another firm in the name of M/s Vinayak Enterprises with same address that of Krishna Textiles and opened a current account fraudulently in Tamil Nad Mercantile Bank Ltd. with account no. 353231.
22. The prosecution case is that the account was introduced by M/s Jasmine Fab Pvt. Ltd. on the request of Trilok Chand a broker. Sh. Trilok Chand had arranged introducer for opening of said account on the request of accused Rajender Goel. Sh. Jatinder Kumar Prop. of M/s Jasmine Fab Pvt. Ltd. had stated that when he signed the account opening form the firm's name was mentioned as Sidhi Vinayak Enterprises which was known to him but only now he has come to know that the word Sidhi has CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 10 Date:-27.05.2014 been deleted clandestinely after obtaining the signatures.
23. The further case of the prosecution is that Rajender Goel issued five cheques from his OCC account in Andhra Bank, Vishwas Nagar favouring M/s Vinayak Enterprises and they were deposited by Dhiraj Kumar so called Proprietor M/s Vinayak Enterprises in the account of Vinayak Enterprises and withdrew the amount subsequently and the total amount so deposited in his account was Rs.7,99,750/- as detailed in page 7 of charge sheet.
24. The further case of the prosecution case is that in the similar manner in order to defraud the OCC facility, Deepak Goel floated a fictitious firm in the name and style of Balaji Textiles at the same address as that of accused Rajender Goel at 421, Kucha Brijnath, Chandni Chowk. This account was opened at PNB, Chandni Chowk with account no. 731686. As per the investigation M/s Balaji Textiles never functioned at the given address.
25. The case of the prosecution is that Rajender Goel issued 11 cheques amounting to Rs.12,77,036/- favouring Balaji Textiles and this amount was withdrawn by Deepak Goel from the account of Balaji Textiles as detailed at page 8 of the charge sheet.
CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 11 Date:-27.05.2014
26. The prosecution case is that A2 Rajender Goel in conspiracy with A1 E. Krishnamurthy, Branch Manager and other accused A3 Jitender Gupta valuer availed the OCC facility of Rs.30.24 Lacs from Andhra Bank, Vishwas Nagar Branch and thereafter he misused the said facility in conspiracy with A5 Dhiraj Kumar and son Deepak Goel A4 defrauded the bank to the tune of Rs.30.24 lacs thereby causing loss to the bank and resulting gain to themselves.
27. The case of the prosecution is that during the investigation the documents were referred to GEQD, Shimla for opinion on the writings/signatures/rubber stamp impression and the GEQD opinion has proved the forgery of documents and also identified the signatures of accused Rajender Goel.
28. Accused E. Krishnamurthy has been dismissed from the services on 11.09.2013
29. Vide order dated 11.04.2007 substantive charge u/s 420/471 IPC was directed to be framed against accused Rajender Goel, a substantive charge for the offence u/s 13(2) r/w 13(1)(d) PC Act was directed to be framed against A1, charge of criminal conspiracy was directed to be framed against all the five accused CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 12 Date:-27.05.2014 r/w 420/471 and 13(2) r/w13 (1)(d) P.C. Act. Annexure A alongwith the charge is detail of all the cheques which were transferred in the three bank accounts from OCC of Rs.30.24 lacs. All accused denied the charge and claimed trial.
30. In support of its case prosecution in all has examined 56 witnesses.
31. A2 Rajinder Goel has expired during trial and proceedings against him were abated. This judgment is against A1, A3, A4 and A5.
32. In their statement recorded under Section 313 Cr.P.C all accused have pleaded their false implication.
33. It has been asserted by A1 in his statement that this cash credit limit of Rs. 30.24 lac was sanctioned within his discretionary power as General Manager. As per him the title deeds submitted by borrower as collateral security were verified by bank's approved Advocate and valued by bank's approved valuer. According to A1 the loan was sanctioned based on the recommendations of PW-4 R.D. Mehta Loan Processing Officer who did not point out any adverse features in the document. According to A1 the Head Office has neither called any CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 13 Date:-27.05.2014 explanation nor issued any charge sheet for alleged violation of bank prescribed norms and practice. According to A1 the property offered as collateral security was existing and it was inspected by him, the approved valuer and the insurance company executive who has ensure the property.
34. A1 also examined one DW Shree Niwas Rao Sr. Manager Andhra Bank.
35. In his statement under Section 313 Cr.P.C it has been asserted by A3 that he was on the panel of approved property valuers of Vishwas Nagar Delhi branch of Andhra Bank. According to him he did not conduct any valuation in this case and valuation report Ex.PW4/M was not sent by him to the bank nor it is signed by him. It is submitted that inspection allegedly conducted by IO on 27.4.2014 and 30.4.2014 were not conducted in his presence. According to him the valuation report Ex.PW4/M contain his forged signatures.
36. As per A4 Deepak Goel he has been falsely implicated being son of A2 Rajinder Goel (since deceased). As per him he was running his business in the name of Balaji Textiles at 421, first floor, Kucha Brij Nath, Chandni Chowk Delhi and his father Sh. Rajinder Goel since deceased (A2) had paid money as and when CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 14 Date:-27.05.2014 required by him for the business purpose which was credited in the account of his company Balaji Textiles.
37. A5 Dhiraj Kumar Mehra in his statement under Section 313 Cr.P.C has pleaded innocence and has denied his involvement in this case. It has been asserted by him that he is an employee of A2 Sh. Rajinder Goel (since deceased) at a salary of Rs. 4200/- per month. It has been asserted that he joined service with A2 Rajinder Goel (since deceased) at 425, Kucha Brij Nath, Chandni Chowk on 15.11.2000. He denied that he has any concern with loan amount. He also asserted that he never used any money for his own use out of this amount of OCC limit. He has asserted that Rajinder Goel has opened bank account in his name and also obtained his signatures on bank cheques.
38. This Court has heard the Ld. PP for the CBI and also the Ld. Counsels at length.
39. As may be seen the charge of criminal conspiracy under Section 120-B read with Section 420/471 IPC read with Section 13 (2) and 13 (1) (d) PC Act 1988 is common against all the accused facing trial. This is to be discussed first against each of the accused.
CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 15 Date:-27.05.2014
40. The offence of criminal conspiracy has been defined under Section 120-A IPC. As per this Section if two or more persons agreed to do, or caused to be done
(i) An illegal act, or
(ii) An act which is not illegal by illegal means, such an agreement is designated as criminal conspiracy.
41. The main ingredients of the offence of criminal conspiracy is an agreement between two or more persons. The conspiracy may be proved either by direct evidence or by circumstantial evidence. The direct evidence of a criminal conspiracy as we all know is seldom available and as such it may be proved by circumstantial evidence in a particular case. In Vigyan @ Rajan Vs. State of Kerala 1999 (1) GCC (SC) 173 Para 11 Page 182 it was held that to prove the charge of criminal conspiracy there must be some material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done pursuant to the said conspiracy.
42. In order to show the involvement of A1 E. Krishnamurthy, in the conspiracy prosecution has been relying upon the statement of PW1 who has filed his complaint Ex.PW1/A. CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 16 Date:-27.05.2014
43. The prosecution is also relying upon the statement of PW-2 S. Mohan Rao Chief Manager, Andhra Bank. He has detailed the procedure followed by all branches of Andhra Bank in the year 2000 in the matter of grant of OCC limit. PW-2 has deposed that before release of the credit limit the Manager or the Advance Officer will visit the place of business and also visit the property which is offered as collateral security. As per PW-2 the borrower and the person who had offered the security will identify the property and they will accompany with panel valuer at the time of the valuation.
44. PW-2 has deposed that the party availing the limit may use the funds by issuing cheques in favour of the party with whom he is dealing in business. As per PW-2 self cheques are also permitted depending on the needs of the business which include payment for labour, daily wages, cash purchase etc.
45. The prosecution in order to show the involvement of A1 has also been relying upon PW-3 who has proved the account opening form no. 2958 in the name of Jyoti Impex (D-1) proved by him as Ex.PW3/A whereupon he identified the signatures of A1 and A2.
CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 17 Date:-27.05.2014
46. Prosecution in order to show the involvement of A1 E. Krishnamurthy is also relying upon the statement of PW-4 Ripu Daman Mehta. He was working as an appraisal officer in Andhra Bank during the relevant period. This witness has deposed about the procedure in respect of OCC Limit. He has also deposed that documents Ex.PW4/A to PW4/S1 to S-31 were executed concerning the loan transaction and executed or produced either by borrower A2 Rajinder Goel or were dealt with by A1 E. Krishnamurthy while sanctioning the credit limit of Rs. 30.24 lac to A2 and also includes legal opinion report Ex.PW4/L obtained by the bank from the panel Advocate and valuation report submitted by A3 Jitender Gupta which is Ex.PW4/M.
47. According to PW-4 it was necessary for the Manager (i.e. A1) to physically verify the possession of the property being offered as collateral security before granting the OCC limit. According to PW-4 his job was confined to assess the OCC limit in this matter as per the direction of A1 whereas all remaining formalities were done by A1 himself.
48. In order to show that A1 E. Krishnamurthy has violated the norms of the bank the prosecution is also relying upon the statement of PW-21 Ram Gopal Gupta AGM, Andhra Bank. He CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 18 Date:-27.05.2014 has deposed that A1 has violated the norms of the bank at the time of submitting of the loan as he has not secure the presence of the owner of the property at the time of valuation. It has been deposed by PW-21 that no proof of having verified the identity of the person claim to be the owner of immovable property mandatory income tax returns of the borrower were obtained and no bank official was present at the time of verifying the physical possession of the property.
49. The statement of PW-26 M.M. Tyagi DGM, Andhra Bank corroborate the statement of PW-4 to show the involvement of PW-1. This witness PW-26 has identified the signatures of A1 on D-13 which is already Ex.PW4/K which is disbursement inspection report signed by A1 and he also identify his signatures on Ex.PW26/A which is sanction and cash credit limit by Andhra Bank D-15 besides identification of signatures of A1 on other documents Ex.PW4/J (D-16) which is sanction for credit limit and also Ex.PW4/B which is valuation report signed by A1 (D-23).
50. On the aspect of procedure applicable in the bank the prosecution has also been placing reliance upon the statement of defence witness examined by A1. He is D1W1. His name is Sriniwas Rao. He is a Sr. Branch Manager, Andhra Bank CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 19 Date:-27.05.2014 working in the bank since 1988. In cross examination by the PP he has made a statement that before sanctioning the loan the address particulars of the firm carrying business and collateral property are required to be visited. As per him it is correct that loan cannot be sanctioned without physical verification of the collateral security.
51. It is submitted by the Ld. PP that at the time of sanction of the OCC limit of Rs. 30.24 lac to A2 Rajinder Goel by A1 E. Krishnamurthy, the address of collateral security furnished in loan document was plot no.9, 200 square yards, Khasra No.293/294/190 with new number as 80 MB, Shakarpur Khas. It is submitted by the Ld. PP that this address as reflected in the loan application of A2 furnished in the bank is in fact the address of two different properties. According to Ld. PP there is no plot no.9 in Khasra No.293/294/190 owned by PC Jain and similarly as claimed in loan document furnished by A2 in the bank property no.80 MB, Shakarpur Khas a per investigation was the property of one Tek Chand father of PW-8 Satbir Sharma. It is submitted by the Ld. PP that had any visit would have been made by A1 E. Krishnamurthy as deposed by PW-2 above and also confirmed by PW-4, PW-21 and defence own witness D1W1 Sriniwas Rao, he could have immediately came to know about this position.
CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 20 Date:-27.05.2014
52. In order to show that plot no.9, 200 square yards was not a part of khasra no. 293/294/190 and this address was wrongly given in the loan application and other documents by A2 the prosecution has been relying upon the statement of PW-7 Praduman Singh, Patwari who has proved the relevant revenue record D-75 pertaining to khasra no. 293/190 and 294/190 Ex.PW7/A (D-75). As per PW-7 this khasra no.293/190 and 294/190 was owned by Tuttee and Chote. As per PW-7 the plot no.9 as mentioned in sale deed Mark A (D-8) produced by A2 in the bank are not given in the record produced by him i.e. PW-7 and according to the witness he went with CBI officers to the site to find plot no.9 but he failed to find that plot.
53. PW-9 M.H. Zaidi corroborates the statement of PW-7. He is a retired Kanoongo and at the relevant time was working in the office of SDM Preet Vihar and has re-confirmed that there is no plot no.9 in Khasra No. 293/294/190.
54. The other address of collateral security given alongwith the loan application by A2 in the bank was MB 80 Shakarpur Khas. The prosecution case is that MB 80 Shakarpur Khas was not owned by Parkash Chand Jain as claimed in the loan documents submitted by A2 to the bank. The prosecution to prove this fact CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 21 Date:-27.05.2014 has examined PW-8 Satbir Sharma S/o Tek Chand Sharma. As per PW-8 he has been residing at MB 80, Shakarpur, Delhi since 1970. According to PW-8 this property is in the name of his father Sh. Tek Chand Sharma and was purchased by him from Sh. Balwant Singh in 1970.
55. The prosecution case is that alongwith the loan application A2 had also furnished a letter dated 26.5.1996 from MCD which is Ex.PW8/A and receipt no.87353 Mark Ex.PW8/9 which shows that this property 80 MB, Shakarpur has been applied for mutation in the name of P.C. Jain. As per prosecution case both these documents Mark PW8/8 and receipt Mark Ex.PW8/9 are forged documents. Since these two documents are related to property no. 80 MB, Shakarpur PW-8 Satbir Sharma son of owner of this property has deposed that he has never applied for mutation as shown in letter Mark PW8/8 and property still belongs to his father who has since expired and after him is owned by him and his brother. According to PW-8 they never applied for MCD for issuing of said letter or receipt. PW-8 has also proved the copy of the sale deed of property no. MB 80 Shakarpur as Ex.PW8/A.
56. It is submitted by the Ld. PP for the CBI that in fact no collateral security was found located address of which was given CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 22 Date:-27.05.2014 by A2 Rajinder Goel in the bank in the name of P.C. Jain. It is submitted that Ex.PW8/8 copy of mutation letter dated 26.5.96 issued in the name P.C. Jain and Ex.PW8/9 receipt of property tax issued in the name of P.C. Jain dated 22.8.99 are forged documents. It is submitted that these two documents Ex.PW8/8 and Ex.PW8/9 alongwith the other relevant correspondence were collected by the IO in the course of the investigation and proved by him as Ex.PW55/5 D- 146.
57. To prove that these two documents are forged documents the prosecution has examined the witnesses namely PW-28 Ramesh Lal retired superintendent and also PW-56 Sh. Ramesh Lal Pruthi retired Asst. Commissioner MCD. Although PW-28 is not supportive to the prosecution case on the point of forgery of these documents but PW-56 Ramesh Lal has confirmed the report of PW-28 submitted by him whereby it was informed that two documents Ex.PW8/8 and Ex.PW8/9 were not available in the records of MCD and it was informed accordingly to CBI that these two documents were not issued by MCD.
58. The other relevant witness to prove that property no 80MB, Shakapur was not a part of Khasra No. 293/294/190, the prosecution has examined PW-14 D.C. Vashisht, Patwari DDA CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 23 Date:-27.05.2014 who has deposed that this property is falling in Khasra No.479, Village Mandawali as per land record of DDA w.e.f. 6.3.1973. To supplement the statement of PW-14 the prosecution has also examined PW-44 S. Sarvananan Reader Sub Registrar who had handed over the copy of the sale deed pertaining to Khasra No. 479 registered with them in the office vide S.No. 9032, Book No.1, Volume 252 and production cum receipt memo in this regard has been proved by him as Ex. PW-44/A (D-82) and according to PW- 44 photocopy of this document is already Ex.PW8/A.
59. PW-48 Rakesh Kumar Sinha AGM Andhra Bank has proved the dismissal order of A1 as Ex.PW48/1 (D-149).
60. On the other hand it is submitted by Ld. Defence counsel that it has been admitted by PW-21 in cross examination that there were codified guidelines which according to PW-21 were not collected by the IO PW-55 N.V.N. Krishnan in this case. It is submitted that in view of this position the verbal deposition of witness PW-2, PW-4, PW-21, PW-26 and also of D1W1 will not be of any help to the prosecution case. It is submitted that oral evidence of these prosecution witnesses is barred in view of Section 91, 92 of the Indian Evidence Act in he presence of codified guidelines.
CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 24 Date:-27.05.2014 61 Section 91 and 92 Indian Evidence Act exclude the verbal testimony in specified cases as laid therein.
62. As per Section 91 Evidence Act when the terms of a contract, or of a grant, or of any other disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced in the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible.
63. Similarly Section 92 provides that when the terms of any such contract, grant of other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or substracting from, its terms.
64. Both Section 91 and 92 Indian Evidence Act are based on exclusion of oral evidence in the presence of the CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 25 Date:-27.05.2014 documentary evidence in specified cases. In the present case the codified guidelines are not covered under any of these specified categories as mentioned in Section 91 and 92 Indian Evidence Act. The shield of the provisions as sought by the defence counsel on these legal parameters is thus to be rejected to the defence.
65. It is submitted by the defence counsel that before the sanction of the loan the same is required to be filtered through legal search report which has been submitted in this case by PW- 41 Shiv Lal Gupta Panel Advocate of the bank and also by Valuation Report which is Ex.PW4/M obtained by A1 from valuer of the bank Jitender Gupta and also the documents are subjected to the scrutiny of Appraisal Officer PW-4 R.D. Mehta, who did not find any infirmity in the documents submitted for his consideration before the OCC limit was sanctioned in favour of A2 in this case. This according to the Ld. Counsel would show that A1 has taken all the precautions as required on his part in discharge of his official duty. It is submitted that it was not his individual decision in the grant of the OCC Limit of Rs. 30.24 lac but the decision was taken only when it was finally confirmed by Panel Advocate PW41 Shiv Lal Gupta by approved valuer of the bank Jitender Gupta and also by PW-4 R.D. Mehta, Appraisal Officer of the bank. It is submitted that no malafide can be attributed to A1 E. CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 26 Date:-27.05.2014 Krishnamurthy in the grant of OCC Limit in this case.
66. It is submitted that A1 has complied with all the requirements and all the documents were got collected by him as required for sanction of loan. It is submitted that A1 himself visited the property and submitted a valuation report which is Ex.PW4/B (D-23) and also his report Ex.PW4/K (D-13) which is disbursement/inspection report certifying his visit to the collateral property. It is submitted by the defence counsel thus there is no lapse on the part of A1 in complying with rules and regulations of the bank in grant of OCC Limit.
67. None of the arguments of the defence will find any favour with this Court. The documents furnished and proved by PW-4 R.D. Mehta executed concerning loan in this case as Ex.PW4/A to Ex.PW4/ S-1 to S-31 are only paper formalities done by A1 before grant of loan in this case. It is claimed by A1 that he visited the property 80 MB and met one P.C. Jain there. This plea is a false plea. Property 80 MB is the property of Tek Chand Sharma as confirmed by PW-8 Satbir Sharma and also by PW-44 the reader of the office of Sub Registrar. In his deposition PW-8 has deposed that no person by the name of Parkash Chand Jain was living in the property. There is no cross examination of PW- 8 on this point by defence counsel. As deposed by PW-8 CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 27 Date:-27.05.2014 property has been purchased by his father in 1970. As per PW-8 after the death of his father he is in possession of this property. In view of this position report Ex.PW4/B and Ex.PW4/K of his claim of visiting the site and meeting P.C. Jain there is only to be rejected being false. This plea in fact has been raised by A1 to save his skin and to show that he has complied with all the norms and regulations. The statement of PW-8 Satbir Sharma however disproves this plea of A1.
68. In the loan document furnished by A2 in the bank the name and address of the owner of collateral property has been given as P.C. Jain R/o 995/178/3-D, Jain Mohalla, Kailash Nagar, Delhi. The prosecution case is there is no P.C. Jain in existence at the time of giving of this loan and more particularly at the address so given in the loan documents. In support of this plea the Prosecution has examined PW-10 and PW-11 Kewal Krishan and Naveen Kumar. They are the postman of the area of Kailash Nagar and Jain Mohalla, Gandhi Nagar. In loan document the address of P.C. Jain has been given as that of 995/178/3-D, Jain Mohalla, Kailash Nagar, Delhi. As per PW-10 he is postman in the area of Kailash Nagar from last 15 years. According to him Kailash Nagar and Jain Mohalla are two separate areas and he was distributing Dak only in Kailash Nagar and not in Jain Mohalla. According to him the house in Kailash CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 28 Date:-27.05.2014 Nagar starts from 1701 and ends at 2035. He is categorical in saying that during his tenure of 15 years in Kailash Nagar as a postman this house no.995/178/3D, Jain Mohalla never existed. This witness has not been cross examined by counsel for A1.
69. Similarly the deposition of PW-11 Naveen Kumar is that he was working as a postman in the area of Jain Mohalla and as per him there was no house bearing address of 995/175/3D in the name of Parkash Chand in Jain Mohalla. He was the postman in the area from last 2-3 years. As per him in Jain Mohalla the number of residents starts from four digits. This witness too has not been cross examined by counsel for A1.
70. In support of his case that no P.C. Jain is residing in the area the prosecution has also examined PW-25 Adeshwar Lal Jain S/o Shikhar Chand Jain aged about 48 years R/o IX/2192, Gali No.10, Kailash Nagar. According to the witness he is residing at this address since his birth and he is conversant with the area of Kailash Nagar and has deposed that there is no address of H.No.995/178/3D, Jain Mohalla, Kailash Nagar as shown in sale deed dated 6.4.65 Mark A (D-8). He too has not been cross examined by counsel for A1. Though in cross examination by other counsel for A2, A4 and A5 he has admitted that he does not know all the residents of the area but this would not dilute his CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 29 Date:-27.05.2014 statement regarding residence proof of P.C. Jain given as H.No.995/178/3D Jain Mohalla which according to him does not exist in the area.
71. So the statement of PW-10, PW-11 and PW-25 would show that no person by the name of P.C. Jain is to the knowledge of these witnesses residing at the address of 995/178/3D, Jain Mohalla. As per all these three witnesses this address of P.C. Jain furnished to the bank in fact does not exist either in the area of Kailash Nagar or Jain Mohalla which are two different areas.
72. Since they have been cross examined by the counsel for A1 their testimony qua him remains unrebutted. The statement of these witnesses support the plea of the prosecution that no P.C. Jain was in fact residing at the given address of 995/178/3D, Jain Mohalla.
73. As far as valuation report Ex.PW4/M is concerned, it has been furnished by A3 Jitender Gupta. As per prosecution case this report is a fictitious report and A3 himself is one of the co- accused in the instant case.
74. It is submitted by the defence counsel that in legal search report Ex.PW4/L it has been confirmed by PW-41 Shiv Lal CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 30 Date:-27.05.2014 Gupta Panel Advocate that the property with address no. 995/178/3D Jain Mohalla exist in the name of P.C. Jain and as per this report the record of this property is available in the office of Sub Registrar and this supports the claim of the defence that property was in existence in the name of P.C. Jain.
75. No doubt that report Ex.PW4/L as furnished by PW-41 Shiv Lal apparently supports the defence plea on this point but correctness of this report is highly doubtful. As may be noted even in this very report it has been suggested to verify the existence of the property by physical verification which has not been done in this case. Even otherwise this report is only one piece of evidence and prosecution otherwise has collected sufficient evidence to show that A1 has his involvement in the alleged conspiracy.
76. The prosecution with the help of the evidence of PW-2, PW-4, PW-21, PW-26 and D1W1 has brought sufficient evidence on record to prove the case against A1 E. Krishnamurthy that he has flouted the norms of the bank. He has not visited the property offered as collateral security in the matter of grant of OCC Limit. None of the witnesses have been cross examined on the line that deposition as made by them against A1 about the requirement which he has flouted is not correct. None of them have been given suggestion that codified guidelines even if they were in CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 31 Date:-27.05.2014 existence were different from the procedure prescribed by PW-2 who is a senior officer of the bank and corroborated by PW-4, PW-21 and D1W1.
77. The report submitted by A1 of his visit to the collateral property proved as Ex.PW4/B and PW4/K are false reports submitted by him to the bank. The claim of A1 of his visit to property no. 80 MB and meeting with one P.C. Jain there in his report Ex.PW4/B is a false claim and stands disprove by the prosecution by the testimony of PW-8 Satbir Sharma.
78. The prosecution by evidence of PW-7 and 9 have brought on record sufficient evidence to prove that there is no plot no.9 of 200 square yards in khasra no. 293/295/190.
79. The prosecution has proved on record that property no. 80 MB is in the name of Tek Chand Sharma as deposed by PW-8 Satbir Sharma and the same was a part of Khasra No. 479 as deposed by PW-14 V.L. Vashisht since 1973 as per the record produced by him. This goes on to prove that plot no.293/294/190 and 80 MB is not the address of one and the same property. They are two different properties and Khasra No.293/294/190 is in he name of Tutte and Chotey as proved by PW-7 whereas property no. 80MB is the property of Tek Chand Sharma presently occupied CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 32 Date:-27.05.2014 by his son PW-8 Satbir Shar.a
80. There is no reason to disbelieve the prosecution case that no P.C. Jain is in fact residing at the given address of 995/178/3D Jain Mohalla, Kailash Nagar as deposed by PW-10 and PW-11 who are the two postman in the respective area and as per them the address only starts with four digits in both the areas which also find support from the statement of PW-25 Adeshwar Lal Jain.
81. The prosecution has brought sufficient evidence on record to connect A1 with the conspiracy in the present case and charge of criminal conspiracy under Section is taken as proved against him.
82. So far as role of A3 Jitender Gupta in criminal conspiracy for which he is facing trial herein, is concerned, the prosecution case against A3 is that he was a Panel Valuer of Andhra Bank and has furnished his report Ex.PW4/M (D-12) regarding valuation of the collateral security which according to the prosecution is a fictitious report.
83. As per prosecution case A3 never visited the collateral property and description of the property submitted by him in his CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 33 Date:-27.05.2014 report Ex.PW4/M does not match the address of collateral property given in his report Ex.PW4/M. It is submitted by the Ld. PP that property of PW-20 Dinesh Kumar and also of the property of mother of PW-23 Ashok Gupta were identified by A3 when he was taken as per the Court order in proceedings in his application for anticipatory bail (D-132/10) on 27.4.2004 and again on 30.4.2004.
84. It is submitted by the defence counsel that report Ex.PW4/M attributed to him is not his report. It is not signed by him. His specimen signatures were collected by CBI during investigation and the report of GEQD does not confirm that this report Ex.PW4/M is signed by him.
85. It is submitted that the prosecution has no other evidence to connect A3 with the case except this report. It is submitted that the signatures of A3 have been identified on the report by PW-4 R.D. Mehta but no credence can be given of his identification as he is not a person who satisfy the requirement of Section 47 Indian Evidence Act to accept his opinion evidence on this point regarding his identifying the signatures of A3 on the Valuation Report Ex.PW4/M. It is submitted that in absence of any other evidence being on record against him the accused should be acquitted of the charge of conspiracy.
CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 34 Date:-27.05.2014
86. The other argument is that under Section 157 Cr.P.C the prosecution is duty bound to supply the copy of the FIR immediately without delay to the Court of Magistrate or to the Special Judge concerned. It is submitted that in the present case prosecution has not adduced any evidence showing compliance of Section 157 Cr.P.C. This will only raise a presumption of adverse inference against prosecution.
87. The first question herein while considering the role of A3 in the alleged criminal conspiracy is whether valuation report Ex. PW4/M (D-12) is signed by A3?
88. Every document produced in a Court of Law is required to be proved in accordance with Section 67 Indian Evidence Act which requires that if document is signed by some person then his signatures is to be proved in accordance with law.
89. In Indian Evidence Act, 1872 there are three sections dealing with this area to prove the handwriting and signatures of a person. The first is Section 73 when the Court itself compares and confirm about he correctness of handwriting or signatures of a person concerned. This is not a situation herein. The second is under Section 45 Evidence Act of expert opinion. In this case the CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 35 Date:-27.05.2014 prosecution during investigation collected specimen signatures of A3 and they were submitted to GEQD for comparison that signatures appearing on valuation report Ex.PW4/M (D-12) which as per the prosecution were attributed to A3. The specimen signatures are S-39 to S-46. The GEQD expert Mohinder Singh examined as PW-53 in his report Ex.PW53/A13 has stated that it is not possible to express any opinion on the basis of material supplied so this Section also goes. The third Section dealing with the situation is Section 47 Evidence Act which is also falling in the category of opinion evidence. It requires that when a Court has to form an opinion as to the person by whom any document was written or signed the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed is relevant.
90. Section 47 Indian Evidence Act prescribes as to when a person is said to be acquainted with the handwriting and signatures. It has explanation wherein it lays down the following three conditions.
(1) when he has seen such person writing ; or (2) when he has received documents in response alleged to be written by that person in answer to document written by him or under his authority and addressed to that person; or (3) when in the ordinary course of business documents purported to be written by that person had been habitually CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 36 Date:-27.05.2014 submitted to that person.
91. In this case PW-4 R.D. Mehta was the assessing officer of the bank during the relevant time. He has identified the signatures of A3 on his report Ex.PW4/M. In his examination in chief he has deposed that he is familiar with the signatures of A3 as he was receiving and issuing documents/reports signed by him.
92. As may be seen this is not the prosecution case through the testimony of PW-4 R.D. Mehta that he has seen A3 signing the report Ex.PW4/M nor it is the prosecution case through PW-4 against A3 that he received Ex.PW4/M in response to some document written by PW-4 to him or under his authority or addressed to A3. This position accordingly take out the prosecution case from out of the condition no.1 and 2 of explanation of Section 47 Evidence Act.
93. It is submitted by the Ld. PP that this report Ex.PW4/M was received by PW-4 in the ordinary course of his discharge of official duties. It is submitted that even earlier also PW-4 was receiving the reports from A3 on 5-6 occasions as admitted by him in his cross examination. It is submitted that as such the statement of PW-4 identifying signature of A3 on the report Ex.PW4/M is sufficient to satisfy condition no.3 of explanation to Section 47 Evidence Act.
CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 37 Date:-27.05.2014
94. It is submitted by the defence counsel that in cross examination PW-4 has admitted that he was not directly receiving the documents signed by Jitender Gupta. According to the counsel as such it proves that he was not habitually receiving reports signed by A3. It is submitted by the defence counsel that prosecution has not brought on record the documents if any got submitted to A3 for submitting the report Ex.PW4/M. It is submitted that except the report Ex.PW4/M the prosecution does not have any other material at all to connect him. It is submitted that PW-55 IO N.V.N. Krishnan has admitted in cross examination made on 29.8.2013 by the defence counsel that he has not collected any written communication by Andhra Bank asking A3 to conduct valuation of property. It is submitted that IO has not collected any document to show what fees if any charged by A3 for conducting valuation of the property. In view of this position Ld. Defence counsel submits that report Ex.PW4/M cannot be taken as duly proved against him.
95. As may be seen PW-4 has worked in the bank during the relevant period for about four years. He was receiving the reports in discharge of his official duty and similarly report Ex.PW4/M was also received by him on which he identified the signatures of A3. Then moreover in cross examination PW-4 has CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 38 Date:-27.05.2014 stated that even before that 5-6 time he had received the report from A3. There is no cross examination to rebut this part of the statement made by him that the same is not a correct statement. The argument of defence that no reliance can be placed on this part of statement of PW-4 in absence of any detail of these earlier reports is only to be rejected as the question has been put to him in cross examination only when he replied that reports from A3 were received by him on 5-6 earlier occasions also.
96. Even otherwise as may be seen report Ex.PW4/M is on the letterhead of A3. It would be too far fetched to think that someone else will use letterhead of him, prepare the report and submit the same to the bank.
97. The prosecution has proved the report of the site inspection dated 27.4.2004 Ex.PW55/2 (D-80) which as per the Ld. PP was made in compliance of the direction of the Court vide order dated 26.4.2004 passed in application for anticipatory bail of A3. As per this report A3 led the inspecting party to property no. 27/C, Gali no.8, Vishwas Nagar which is the property of Smt. Shanti Devi mother of PW-23 Ashok Gupta. This report has been signed by all the other members to the site inspection which include Ram Mohan Rao Branch Manager, E. Krishnamurthy A1, CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 39 Date:-27.05.2014 Rakesh Dutt JE CBI and also IO. As per this report A3 also accompanied them and identified the wrong property and he refused to sign the report as remarked in the last of the report at point X1 to X1.
98. Similarly A3 was also taken for site inspection second time on 30.4.2004 when as per the CBI he identified the property number 80A which is the property of PW-20 Dinesh Kumar and his wife Shobha. PW-45 Girdhari Lal brother of PW-20 Dinesh was also present at the time of site inspection and report of the site inspection has been proved by him and is also confirmed by PW- 47 Rakesh Dutt JE CBI.
99. As per PW-47 Rakesh Dutt the structure on property no. 80A, Village Shakarpur was found in occupation of Girdhari Lal. It was a small temporary structure having iron sheet roofing and size of the plot was 15 x 68 meter and 8 x 65 meter which amount to an area of 1459.38 square meter and according to PW- 47 N.V.N. Krishnan and Asst. Manager from Andhra Bank were the other members and property was identified by A3 Jitender Gupta. There is no cross examination of PW-47 by accused Jitender Gupta except one question to which he replied that he measured property bearing no. 80A.
CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 40 Date:-27.05.2014
100. The plea of the Ld. Defence counsel that neither on 27.4.2004 nor on 30.4.2004, A3 was present at the site and both these reports are false report and should be disbelieved is only to be rejected. The site inspection report dated 30.4.2004 has been confirmed by PW-45 Girdhari Lal and also by PW-47 Rakesh Dutt JE. Similarly there is no reason to disbelieve the report of site inspection made on 27.4.2004 proved as Ex.PW55/2. IO N.V.N. Krishnan examined as PW55 is a senior officer of CBI and there is no reason to disbelieve his statement proving this fact.
101. There is no reason to disbelieve the statement of PW-4 when he proves the signatures of A3 on report Ex.PW4/M. Similarly the prosecution case against A3 does not rest with this signature theory alone. The report Ex.PW4/M as proved by them is on the letterhead of A3 and and prosecution has also in support of his case brought the material by way of two site inspection report Ex.PW55/2 and Ex.PW45/A which in no terms proves the involvement of A3 in the present case alongwith other co-accused.
102. The other plea of the defence counsel of drawing adverse inference because of non submitting the copy of FIR to concerned MM or concerned CBI judge is only to be rejected. Nothing has been pointed out by him what prejudice if any has occurred to A3 because of non compliance of Section 157 Cr.P.C.
CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 41 Date:-27.05.2014 The charge against A3 is of criminal conspiracy . It runs through a chain of events. The entire role of all the accused is not supposed to be discussed in FIR itself. The FIR is only the copy of any information first in point of time. It is not supposed to contain each and every detail of a case. In the instant case the defence has not shown that there was any likelihood of change of FIR or RC as a result the case against A3 has been adversely affected. The plea of defence is thus meritless and is only to be dismissed.
103. The prosecution has brought on record sufficient evidence to connect A3 with the charge of Criminal Conspiracy. He is held guilty and convicted for such charges.
104. The charge against A4 is of criminal conspiracy. The prosecution case put up against him in the charge sheet is that he is the son of A2 Rajinder Goel (since deceased). The prosecution case is that in order to defraud the OCC facility granted by the bank to A2, A2 in conspiracy with A4 floated a fictitious firm in the name of Balaji Textile at the address of 421, Kucha Brij Nath, Chandni Chowk, Delhi. The prosecution case against A4 is that in pursuance of the criminal conspiracy a bank account was opened at PNB, Chandni Chowk bearing no. 731686 and to misuse the funds in OCC amount to the extent of Rs. 12,77,036/- as mentioned at page 8 of the charge sheet vide eleven cheques of CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 42 Date:-27.05.2014 different dates was transferred from the OCC limit account of Jyoti Impex of A2 to the bank account of Balaji Textile of A4 and was subsequently withdrawn and thus caused loss to the bank and gain to themselves.
105. To prove the case against A4 that firm M/s Balaji Textiles is a fictitious firm the prosecution has examined PW-13 R.K. Kapoor Manager PNB who has deposed about the account opening form of M/s Balaji Textile which is Ex.PW15/A and also identified photograph and signatures of A4 upon that. PW-15 Ramesh Kumar is the introducer of this account. PW-31 B.R. Gupta is an officer of PNB Chandni Chowk who has deposed that cheques were deposited in the account of A4 M/s Balaji Textile with A/c No. 731686 with PNB Chandni Chowk. He further deposed that vide 12 cheques Ex.PW31/B1 to B12 account holder withdrew the amount from the account and he also identified the signatures of account holder. PW-31 also handed over various documents to CBI vide seizure memo Ex.PW31/C.
106. In support of his case against A4 the prosecution has also examined PW-19 Trilok Chand a Commission Agent working for A2 Rajinder Goel. According to this witness there is no firm in the name of Balaji Textiles to his knowledge.
CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 43 Date:-27.05.2014
107. PW-37 Sukhvinder Singh is an income tax officer. As per this witness neither Balaji Textiles nor other two firms Krishna Textile and Vinayak Enterprise (which as per the prosecution case are the fictitious firms of A5) have filed any income tax return for the assessment year 1998-1999, 1999-2000 and 2000-2001.
108. Prosecution has also examined PW-39 Y.S. Negi who at the relevant time was posted in Sales Tax Department in Ward No.16. In his deposition before the Court PW-39 deposed that he does not remember whether Ward No.16 cover Kucha Brij Nath or not. He was cross examined by the Ld. PP for CBI and he made a statement that he does not remember if he told to CBI that M/s Vinayak Enterprise, M/s Krishna Textile and M/s Balaji Textile 421, Kucha Brij Nath were never registered with Sales Tax Department and as such these firms never filed any sale tax returns. This witness has admitted as correct that as a matter of practice only the firm registered with sales tax department file sale tax return.
109. The prosecution has also examined PW-40 Purshottam Postman of the area of Chandni Chowk from the period 1984 to 2004. This witness has not supported the prosecution case and according to him there were firm in the name of Krishna Textile, Vinayak Enterprise both having address of 425/24, Kucha Brij Nath, Chandni Chowk and M/s Balaji Textiles 421 Kucha Brij Nath.
CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 44 Date:-27.05.2014 According to him he told CBI he used to distribute the dak earlier to these firms but they subsequently left the address and thereafter he returned the dak to senders. He has been cross examined by the Ld. PP.
110. PW-49 S.Q. Ali is a member of raiding party who conducted search in 421, Kucha Brij Nath of which he proved memo Ex.PW49/1 by which the CBI team seized certain documents from the premises. PW-50 M.N. Raina is a witness to the specimen signatures of A4 collected as S-59 to S-65, S-86 to S-89.
111. It is submitted by the Ld. PP that all the witnesses examined by prosecution including IO N.V.N. Krishnan PW-55 supports the prosecution case and prove that there is no existence of the firm M/s Balaji Textile which was only a fictitious firm opened to defraud Andhra Bank. It is submitted that A4 was not involved in any business transaction at all and firm was formed only in conspiracy with A2 and other co-accused to defraud the bank.
112. On the other hand it is submitted by the Ld. Defence counsel that there is no evidence to show that A4 is part of a criminal conspiracy. It is submitted that prosecution own CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 45 Date:-27.05.2014 witnesses does not support that firm M/s Balaji Textile is a fictitious firm. It is submitted that A4 was filing his own income tax return during the relevant period in his personal capacity which are Ex. PW55/D4/A from the address of his residence. It is submitted that A4 was running his own business firm in the name of Balaji Textile and transactions between him and A2 were only business transaction and nothing illegal was involved in it.
113. The appreciation of the testimony of prosecution witnesses would show that PW-13 R.K. Kapoor has made a statement in examination in chief that there is no illegality in the opening of the bank account and according to him no forged or fabricated documents were submitted for opening the account.
114. So far as witness PW-19 Trilok Chand is concerned he is a commission agent for A2 only. He is not a commission agent for A4 nor he has worked for A4 and thus his statement which prosecution find solace to support his case that he has not heard any firm in the name of Balaji Textile will not be of much help to the CBI case at this point. It is not necessary for this witness to have knowledge of the firm of M/s Balaji Textile. The prosecution cannot derive much support from the statement of PW-19.
115. So far as the witness PW-37 is concerned his CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 46 Date:-27.05.2014 statement is proving the fact that Balaji textile is not an income tax payee nothing more can be read into it against A4 for this reason. It is submitted by the counsel that during the relevant time the firm M/s Balaji Textile was a new firm and was not having much income and has not filed income tax return. Nothing has been brought on record to prove that filing of income tax return was mandatory during that time. Even significance of the statement of PW-37 gets diluted in view of the fact of filing of income tax return by A4 in his personal capacity.
116. Similarly prosecution cannot derive any benefit of the statement of PW-39 who is a witness from sales tax department. The witness in the first instance is not supportive to the prosecution case. Even otherwise nothing has been brought on record to show that as soon as a firm starts its business, it is required to be registered with sales tax department in each and every case. Therefore, the statement of PW-39 is not of any support to the prosecution case.
117. So is the position with the evidence of PW-40 Purshottam is concerned his evidence strengthen the case of defence more than prosecution saying that he was delivering dak to the firm including M/s Balaji Textile during the relevant period.
CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 47 Date:-27.05.2014
118. The prosecution fails to prove from the statement of PW-49 S.Q. Ali an officer of CBI or from the seizure memo Ex.PW49/A that anything incriminating was found qua accused A4 Deepak Goel or his firm Balaji Textile.
119. This is the entire evidence adduced by the prosecution to prove the charge against A4 of his being involved in conspiracy in this case alongwith other co-accused. From the entire gamut of the evidence collected against A4 the prosecution at the best has proved that A4 was proprietor of M/s Balaji Textile which has its bank account with PNB bearing no.731686 and amount of Rs. 12,77,036/- has been transferred in this account from the bank account of OCC limit of A2 Rajinder Goel. The evidence adduced by prosecution from no where suggest that Balaji Textile was a fictitious firm as sought to be propounded by the prosecution. The transfer of the amount of Rs. 12,77,036/- from the bank account of A2 Rajinder Goel to the bank account of A4 Deepak Goel will not by itself add to any culpability or criminal intent. This by itself is not sufficient to prove that firm of A4 Deepak Goel is a fictitious firm. The other evidence on record adduced by the prosecution to prove this fact is either deficient or otherwise not supportive.
120. In a criminal trial it is always the duty of the prosecution to prove his case against accused beyond all reasonable doubt CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 48 Date:-27.05.2014 and this burden cannot be shift upon the accused. It is submitted by the Ld. PP that business address of Balaji Textile is 421, Kucha Brij Nath which is also the business address of A2 Rajinder Goel and Balaji Textiles has not produced anything to show that firm was involved in any business transaction would support the prosecution that it was only a fictitious firm.
121. This argument is only to be rejected as there is nothing to show that two firms cannot share the same business address for their business. Even if the address of the two firm is the same this would not lead to draw any adverse inference against A4 for this reason.
122. The prosecution case that Balaji Textile was a fictitious firm opened only to facilitate A2 to siphon the funds of Andhra Bank to the tune of Rs. 12,77,036/- from the OCC limit account of Jyoti Impex of A2 Rajinder Goel does not find favour from their own witness and is thus to be rejected.
123. The prosecution witness proves that M/s Balaji Textiles of A4 was in existence during the relevant time and no one has said of any forgery or cheating in opening of the bank account by the firm. In this case so far as the prosecution case against A4 is concerned their own witnesses do not support the charge against CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 49 Date:-27.05.2014 him.
124. Considering to the overall evidence as coming on record A4 is given benefit of doubt of his involvement in criminal conspiracy alongwith other co-accused in this case.
125. As per prosecution case A5 Dhiraj Kumar Mehra was an employee of A2 Rajinder Goel (since deceased). The charge against A5 is of criminal conspiracy under Section 120-B read with Section 420/471 and Section 13 (2) and 13 (1) (d) PC Act. The prosecution case against him is that in order to defraud the Andhra Bank, Vishwas Nagar accused Rajinder Goel conspired with A5 Dhiraj Kumar Mehra and in pursuance of criminal conspiracy one current account was opened in Andhra Bank, Chandni Chowk in the name of Krishna Textile with address of 425/24, Kucha Brij Nath, Chandni Chowk. A5 is proprietor of it and the prosecution case is that Krishna Textile never functioned from the given address. As per prosecution it was the address of A2 himself. As per prosecution case A2 himself after obtaining sanction limit of Rs. 30.24 lac in this case issued five cheques of different dates as detailed in para 6 of the charge sheet of the total amount of Rs. 6,44,466/- favouring M/s Krishna Textile from his OCC account Andhra Bank, Vishwas Nagar Branch. These cheques according to the prosecution were deposited in the account of Krishna CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 50 Date:-27.05.2014 textiles and subsequently amount was withdrawn by A5 Dhiraj Kumar Mehra.
126. Similarly A5 floated another firm in the name of M/s Vinayak Enterprises with same address of 425/24, Kucha Brij Nath and opened a current account fraudulently in Tamilnad Mercantile Bank Ltd with account no. 353221. As per the prosecution case A2 Rajinder Goel (since deceased) issued five cheques of different dates of the amount of Rs. 7,99,750/- as detailed in page 7 of the charge sheet from his OCC account in Andhra Bank, Vishwas Nagar favouring Vinayak Enterprises and amount was withdrawn against the same from the account of Vinayak Enterprises subsequently.
127. A5 does not dispute the prosecution case to the extent of opening of the bank account in the name of Krishna Textile with Andhra Bank and also in the name of Vinayak Enterprises in Tamilnad Bank and transfer of the amount as alleged in the charge sheet and withdrawing of the same. His defence is that he is an employee of A2 on a monthly salary of Rs. 4200/- since 13.11.2000.
128. According to the Ld. Defence counsel no money has been used by A5 for his personal use. According to the Ld. CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 51 Date:-27.05.2014 Counsel two bank accounts were opened in the name of Krishna Textile and Vinayak Enterprise as pre-condition of giving employment by A2 to A5 and nothing was disclosed by A2 to A5 about the same. It is submitted by the defence counsel that A2 has also obtained signatures of A5 on blank cheques which were kept by A2 with him only. It is submitted that A5 learnt about the case against him only when CBI called him in his office during investigation.
129. The prosecution in this case has not collected any evidence to show since when A5 was in employment with A2. There is nothing to dispute the claim of A5 that he was employed by A2 on 13.11.2000. The two bank accounts in the name of Krishna Textile and Vinayak Enterprises were opened on 14.11.2000 and 12.12.2000 respectively.
130. The prosecution has not brought any evidence to show that A5 is a beneficiary out of these transactions in any manner. The defence put forward by A5 cannot be called as totally improbable. He is given benefit of doubt of his involvement in the present case.
CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 52 Date:-27.05.2014 Charge under Section 13 (2) read with 13 (1) (d) PC Act,1988 against A1 E. Krishnamurthy
131. The other charges against A1 is under Section 13 (2) read with 13 (1) (d) PC Act that being a public servant i.e. Managar of Andhra Bank he has abused his office and have caused pecuniary loss of Rs. 30.24 lac to the bank and corresponding gain to A2.
132. The prosecution by way of evidence of PW-2, PW-4, PW-21, PW-26 and also by D1W1 has proved the fact that A1 has flouted the norms of the bank in the grant of OCC limit of Rs. 30.24 lac to A2 Rajinder Goel since deceased.
133. It is submitted by the defence counsel that prosecution has not adduced any evidence to show that there was any dishonest intention on the part of A1 in grant of OCC limit and the evidence of PW-2, PW-4, PW-21, PW-26 and D1W1 at the best prove that norms of the bank were not observed by A1 at that point of time but that does not prove that they were so done by A1 with some dishonest intention. In support A1 has been relying upon C.K. Zakir Sharif Vs. State (2013) 1 SCC 205, S.K. Kale Vs. State of Maharashtra 1977 (2) SCC 395. It was a case under Section 5 (1) (d) and Section 5 (2) PC Act 1947 (which is CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 53 Date:-27.05.2014 corresponding to Section 13 (2) read with 13 (1) (d) of the present Act) where it was held that it is for the prosecution to prove the ingredient of Section 5 (1) (d) affirmatively that the appellant by corrupt or illegal means and by abusing his position has obtained any pecuniary advantage for some other person. It was held in this case that prosecution case is merely of abuse of position by the appellant, a public servant. Such an abuse of position must necessarily be discussed so that it may be proved that the appellant deliberately caused wrongful loss to the army by obtaining pecuniary benefit for the present supplier. Similar is the view taken by the Hon'ble Apex Court in S.P. Bhatnagar Vs. State of Maharashtra (1979) (1) SCC 536 where it was held that failure of prosecution to examine some material witness is fatal to the case and it is for the prosecution to prove affirmatively that accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person.
134. On consideration of the case law and applying the same to the facts of the present case for A1, it may be seen that the facts in the present case are quite at contrast. A1 as proved by PW-1, PW-4, PW-21 and by D1W1 has not only violated the norms by not visiting the address of collateral security himself but has also submitted his reports Ex.PW4/B and Ex.PW4/K certifying his visit to the property bearing no. MB 80 which are false reports.
CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 54 Date:-27.05.2014 So this case does not remain confine only to the aspect of non observing the norms of the bank by A1. There is evidence to show that there was a deliberate action on his part by way of submitting these two reports Ex.PW4/B and Ex.PW4/K which bring the element of dishonest intention on his part. This proves the offence under Section 13 (2) read with 13 (1) (d) PC Act against him beyond doubt.
135. The prosecution in this case has successfully proved both charge under Section 120-B read with Section 420/471 IPC read with Section 13 (2) read with 13 (1) (d) PC Act 1988 against A1 and also substantive charge under Section 13 (2) read with Section 13 (1) (d) PC Act 1988 against A1 E. Krishnamurthy.
136. A2 Rajinder Goel (since deceased) no judgment is being passed against him.
137. A3 is held guilty and convicted for the charge under Section 120-B read with Section 420/471 IPC read with Section 13 (2) read with 13 (1) (d) PC Act 1988.
138. A4 Deepak Goel and A5 Dhiraj Kumar Mehra are given benefit of doubt for the charge under Section 120-B read with CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 55 Date:-27.05.2014 Section 420/471 IPC read with Section 13 (2) read with 13 (1) (d) PC Act 1988 and are acquitted of the charge.
Dictated and announced in the open Court on 27.5.2014.
( RAJIV MEHRA ) SPECIAL JUDGE CBI (PC ACT) EAST DISTRICT KKD COURTS: DELHI CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 56 Date:-27.05.2014 IN THE COURT OF RAJIV MEHRA SPECIAL JUDGE CBI (PC ACT) KARKARDOOMA COURTS : EAST DISTRICT DELHI AC NO.31/11/05 RC No.16A/03 C.B.I. VERSUS
1. E. Krishnamurthy S/o Late Sh. Laxmi Narayanan, R/o 343, Sector 16, Faridabad, Haryana
2. Rajinder Goel ( Since deceased ) S/o Sh. Ram Kumar R/o 26/46, Shakti Nagar, Delhi
3. Jitender Gupta S/o Sh. K.C. Gupta R/o 41, Ashirwad Apartment, 74 I.P. Extension, Delhi-92
4. Deepak Goel S/o Late Sh. Rajinder Goel R/o H.No. 65, Sector- I, Vasundhara, Ghaziabad, U.P.
5. Dheeraj Kumar Mehra S/o Sh. Shankar Lal R/o B-37, Avantika, Sector-I, Rohini, Delhi CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 57 Date:-27.05.2014 ORDER ON SENTENCE
1. It is submitted by the Ld. PP that it is a social and economic offence. He has been relying upon A.B. Bhaskara Rao Vs. Inspector of Police CBI Vishakapatnam AIR 2011 SC 3845 .
2. He has also been relying upon State of Gujrat Vs. Hon'ble Mr. Justice R.A. Mehta (Retd.) and Ors. 2013 AD (S.C.)
325. The Hon'ble Court in Para 64 found support from the judgment in Special Court's Bill AIR 1979 SC 478 where it was held that corruption and repression hijack development process and in the long run lagging national progress means ebbing people's confidence in constitutional means to social justice.
3. Ld. PP prays for maximum sentence.
4. Ld. Counsel for A1 E. Krishnamurthy submits that convict is a retired bank official. He has an unmarried daughter who is pursuing studies and convict himself has undergone recent heart surgery in March, 2014 and he is still under recovery. He request for a lineant view.
5. It has been submitted by Ld. Counsel for A3 Jitender CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 58 Date:-27.05.2014 Gupta that he is 63 years of age. He has undergone hip surgery and there was a fracture of neck femur left operation of which was held in April 2009. It is submitted that he is still limping and cannot sit and walk properly. He has unmarried daughter of about 30 years of age. Ld. Counsel request for a lineant view.
6. In Narender Champak Lal Trivedi Vs. State of Gujrat AIR 2012 SCC 2263 it has been held by the Apex Court that corruption at any level did not deserve any sympathy or linenacy.
7. The present is a case in which public funds were misused by A2 Rajinder Goel (since deceased) in criminal conspiracy with A1 E. Krishnamurthy who is the only public servant in this case who at the relevant time was working as Manager, Andhra Bank, Vishwas Nagar and also by A3 Jitender Gupta who submitted a false valuation report. A1 was holding a public office.
8. Section 13 (2) PC Act 1988 stipulates that a public servant who committed criminal misconduct shall be punishable with imprisonment for a term which shall not be less then 1 year but it may be extended to 7 years and shall also be liable to pay a fine.
CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 59 Date:-27.05.2014
9. The regard being had to the facts and circumstances of the present case, the age of the two accused and also taking into account all the other circumstances, A1 E. Krishnamurthy is sentenced to imprisonment for the offence under Section 13 (2) read with 13 (1) (d) of PC Act 1988 for a period of 3 years and is also imposed with a fine of Rs.50,000/- . In default of payment of fine he shall undergo SI for six months.
10. A1 and A3 have been held guilty of the charge of criminal conspiracy under Section 120-B read with Section 420/471 IPC and also 13 (2) read with Section 13 (1) (d) PC Act 1988.
11. Section 120-B (1) IPC postulates that whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or RI for a term of 2 years or upwards shall where no express provision is made in this code for the punishment of such a conspiracy be punished in such a manner as if he has abetted such offence.
12. Section 109 IPC deals with punishment of abetment and provides that whoever abets any offence where there is no CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 60 Date:-27.05.2014 specific provision in the code for punishment of such abetment, be punished with the punishment provided for the offence.
13. The maximum sentence for the offence under Section 420/471 IPC and under Section 13 (2) PC Act is upto 7 years.
14. Keeping in view the overall facts and circumstances Both A1 and A3 are sentenced to imprisonment for 2 years each and they are also imposed with a fine of Rs.50,000/- each for the offence of criminal conspiracy. In default of payment of fine each of them shall undergo SI for 6 months each.
15. The sentence of imprisonment in the case of A1 E. Krishnamurthy for the offence under Section 13 (2) read with section 13 (1) (d) PC Act 1988 and under Section 120-B read with Section 420/471 IPC and 13 (2) read with Section 13 (1) (d) shall run concurrently.
16. Both convicts be given benefit of Section 428 Cr.P.C.
17. Copy of the Judgment and Order on Sentence is supplied free of cost to convict.
CBI Vs. E. Krishnamurthy Etc. RC No.16A/03 AC No.31/11/05 61 Date:-27.05.2014
18. ORDER IS MADE ACCORDINGLY. File be consigned to record room.
Dictated and announced in the open Court on 29.05.2014.
( RAJIV MEHRA ) SPECIAL JUDGE CBI (PC ACT) EAST DISTRICT KKD COURTS: DELHI