Delhi District Court
Cbi vs . (1) Suresh Kumar Arora @ S.K.Arora on 3 January, 2017
1
IN THE COURT OF SH. SANJEEV AGGARWAL:
SPECIAL JUDGE: CBI03 (PC ACT): DELHI
CC No.71/2000 RC : 4(E)/1998
PS : CBI/SIUX/ND
U/s : 120B r/w Sec.420, 409,477A IPC and
13(2) r/w Sec.13(1)(d) of PC Act, 1988.
CBI Vs. (1) Suresh Kumar Arora @ S.K.Arora
S/o Late Sh.P.L.Arora
R/o 179C, PocketB,
Mayur Vihar, PhaseII, Delhi
the then Br.Manager, OBC, Mahipal Pur Br.,
New Delhi. (Since deceased)
(2) Ashok Mehra
S/o Sh.Mohinder Chand Mehra
R/o J1371, Palam Vihar, Gurgaon
Prop. M/s Mehra Constructions,
63, Ashoka Crescent Marg,
DLF, PhaseI, Gurgaon.
(3) Padam Kumar
S/o Sh.R.K.Sharma
RC NO.4(E)/1998
CBI Vs S.K.Arora & Ors. 1 of 158
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R/o D5/14, Vashist Park, New Delhi46
Presently working as Accountant of
M/s Mehra Constructions, 63
Ashoka Crescent Marg,
DLF, PhaseI, Gurgaon.
Date of Institution : 28.09.2000
Judgment Reserved : 14.12.2016
Judgment Delivered : 03.01.2017
J U D G M E N T
1.This case RC. SIA 1998 E0004 SIU(X), New Delhi was registered on 29.10.98 on the basis of written complaint received from Sh. S.K.Singh, Chief Vigilance Officer, Oriental Bank of Commerce, New Delhi against Sh. S.K.Arora, Sh. Rupak Bajaj and Mrs. M. Bajaj for cheating the Oriental Bank of Commerce to the tune of Rs. 50,59,710/. It has been alleged that during the period 1991 to 1996, Sh. S.K.Arora while functioning as Branch Manager, OBC, Basant Lok Branch and Mahipalpur Branch, New Delhi entered into criminal conspiracy with Mrs. M.Bajaj, Prop. M/s House of Travels and her husband Rupak Bajaj of M/s Oxford Travels Pvt . Ltd., to cheat OBC. It is further alleged that Sh. Rupak RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 2 of 158 3 is a close relative of Sh. S.K.Arora.
2. It has also been alleged that in pursuance of the criminal conspiracy Mrs. M.Bajaj opened a current account in the name of her firm M/s House of Travels at OBC, Basant Lok, New Delhi. Sh. S.K.Arora sanctioned clean Over Drafts during 10.10.93 to 13.04.96 in different names and ultimately these accounts were shown as adjusted by debiting a benami SB account opened in the name of Kamal Kumar Ramesh Chander. Similarly Sh. S.K.Arora allowed demand loans in fictitious accounts opened in the name of Rupak Kumar and Smt. Madhu Kumari and later on proceeds of these loans were transferred to the account of M/s Oxford Travels(India) Pvt. Ltd., of A3 and M/s House of Travels of A2. The names of account holders in different accounts have been shown in different names. As on April 96 Sh. S.K.Arora was transferred to Mahipalpur Branch of OBC, when the outstanding in OBC, Basant Lok Branch were adjusted by debiting the said benami account opened in the name of Kamal Kumar Ramesh Chander. It has been further alleged that from the loans so sanctioned a total amount of Rs. 39,600/ have been transferred to the accounts of Sh. Gaurav Arora and Mrs. Komal Aror son and wife of Sh. S.K.Arora. There is a total loss of Rs. 50,59,710/ RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 3 of 158 4 caused to OBC.
3. Investigations have revealed that Sh. S.K.Arora was appointed as ClerkcumCashier on 08.05.74. He was promoted as an Officer on 11.06.81. He was transferred to Basant Lok Br. New Delhi on 27.11.90 to take charge from R.N.Rattan. Sh. S.K.Arora was promoted to scaleII on 02.05.91 and to MMGS III on 08.06.95. Sh. S.K.Arora was transferred to Mahipalpur Br., on 03.04.96 as Br. Manager where he joined on 15.04.96. He was suspended from Bank Service on 05.03.97 and subsequently removed from service on 06.08.97.
4. Investigations have further revealed that current account No. 936 was opened on 19.04.91 in the name of M/s Oxford Travels Pvt. Ltd., with Sh. Bajaj and Deepak Bajaj as its Directors. The account was to be operated by Sh. Rupak Bajaj. Overdraft facility upto Rs. 1,68,750/ was sanctioned by Sh. S.K.Arora on 29.01.92 which was enhanced to 6 lacs on 08.05.92. The overdraft in this account was to the tune of Rs. 10,38,306.15 as on 31.12.92 which increased to 13,62,253.45 as on 30.09.93. To adjust the said overdraft a demand loan No. 21 for Rs. 7,01,000/ was dishonestly sanctioned on 10.10. 93 in the name of Rupak Kumar by Sh. S.K.Arora and the said amount was credited in the current RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 4 of 158 5 account No. 936 thereby reducing the overdraft to Rs. 1,27,869.45. The loan documents and the vouchers are not on record but the ledger sheet of the demand loan has been prepared by Sh. S.K.Arora who has also made the first entry in the said ledger sheet. The overdraft was adjusted on 23.02.96 by credit of proceeds of CDR/FDR and as on 25.02.99 the account was showing a credit balance of Rs. 755/.
5. Investigations have further disclosed that current A/c No. 1153 was opened on 11.06.92 in the name of M/s House of Travels with Mrs. Madhu Bajaj as its Prop. The account was introduced by Sh. Rupak Bajaj and allowed by Sh. S.K.Arora. The account was showing occasional overdrafts with subsequent credits till 02.12.92. From Jan. 1993 onwards the overdraft in the account in the account had been increasing continuously due to various withdrawals. As on 07.10.93 the account was showing overdraft of Rs. 8,18,442.50. On the same day an OD limit of Rs. 9,75,000/ was sanctioned by Sh. S.K.Arora in the said account.
6. It was further revealed that on 10.10.93 a demand loan DL22 for Rs. 7,30,000/ was dishonestly sanctioned in the name of Madhu Kumar by Sh. S.K.Arora and the said amount was credited in said current a/c No. 1153 thereby reducing the overdraft RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 5 of 158 6 to Rs. 1,13,442.50. The loan documents and the vouchers are not available on record. The demand loan ledger sheet has been prepared by Sh. S.K.Arora who has also made the first entry. As on 20.04.96 the overdraft in this account was Rs. 1723440.17 which was adjusted by credit of an amount of Rs. 1711277.17 vide TPO No. 167469/274/96 dtd., 17/4/96 issued by OBC, Mahipalpur Branch, New Delhi by debiting current account NO. 1549 of M/s House of Travel and credit of DD of Rs. 19,500/. The said account is showing a credit balance of Rs. 15,020/ as on 25.02.99. All the cheques upto 30.06.95 bear signatures as M.Bajaj as Prop. of House of Travels and majority of the said cheques also bear the signatures of Sh. Rupak Bajaj on the back of the cheques for having received the payments(as per Annexure A & B enclosed with chargesheet). The signatures of Mrs. M. Bajaj appearing on the cheques do not tally with those on the AOF. GEQD has opined that the said signatures are not of Mrs. Madhu Bajaj. The Officers who have passed the said cheques have stated that they had passed the same on the verbal instructions of Sh. S.K.Arora, the then Br. Manager. From 01.07.95 all the cheques have been issued by Sh. Rupak Bajaj who has also signed on the back of the cheques.
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7. To adjust the above mentioned demand loan DL21, two fresh demand loan a/c no. 49 in the name of Oxford Travels for Rs. 3,88,926/ and DL No. 50 in the name of Rupak Bajaj for Rs. 3,32,000/ were dishonestly allowed by Sh. S.K.Arora on 22.01.94 and the proceeds of both amounting to Rs. 7,20,926/ was utilized to adjust the outstanding of demand loan no. 21 of Rupak Kumar after application of interest. Both the ledger sheet of DL49 & 50 has been fraudulently prepared by Sh. S.K.Arora who had also made the first entry dtd. 22.01.94 under his initials in both the accounts. He has also made the credit entry in DL21 of Rupak Kumar and also mentioned "A/c adjusted". Loan documents of the said DL a/cs are not available.
8. On 03.04.94 the outstanding of demand loan a/c 49 amounting to Rs. 4,02,527/, after application of interest, was dishonestly and fraudulently transferred to a new demand loan a/c no. 79 in the name of Oxford Travels showing as fresh advance while the demand loan a/c 49 was fraudulently shown as adjusted by marking "A/c Closed" by Sh. S.K.Arora. The loan documents for demand loan No. 79 for Rs. 4,02,527/ in the name of Oxford travels are available on record which includes LD4(promissory note) and LD5(ApplicationCumAuthority Letter for Financial RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 7 of 158 8 Assistance Against the Security of Bank's Deposits). Both the documents dtd. 03.04.94 for Rs. 4,02,527/ had been filled by Sh. S.K.Arora and signed by M. Bajaj on behalf of Oxford Travels. On page 3 & 4 of LD5 Sh. S.K.Arora has dishonestly and fraudulently signed as Moti Ram in Hindi intending that the documents forged shall be used for the purpose of cheating. On the same day i.e 03.04.94 the outstanding of demand loan a/c 50 showing an outstanding of Rs. 3,43,610/ after application of interest was dishonestly and fraudulently transferred to another new demand loan a/c no. 78 in the name of Rupak Bajaj showing as a fresh advance while the demand loan a/c no. 50 was fraudulently shown as adjusted by mentioning "A/c closed" by Sh. S.K.Arora. The ledger sheets of both the new demand loan a/c nos. 78 & 79 had been prepared by Sh. S.S.Arora under his signature, who had also made the first debit entries in both the a/cs under his initials. He had deliberately made the credit entries for adjusting the demand loan a/c no. 49 & 50. The outstanding of demand loan a/c no. 78 for Rs. 3,83,229/ was fraudulently carried over to a new ledger sheet R78 of Rupak Bajaj while the outstanding of demand loan no. 79 for Rs. 4,49,194/ was fraudulently carried over to a new ledger sheet no. R79 in the name of Oxford Travels. The RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 8 of 158 9 outstanding of demand loan a/c R78 of Rupak Bajaj rose to Rs. 4,00,317) as on 08.05.95 after application of interest, while the outstanding of demand loan a/c R79 in the name of Oxford Travels rose to Rs. 4,80,349/ as on 08.05.95 after application of interest.
9. The investigations had further revealed that the demand loan a/c no. 22 of Madhu Kumar was fraudulently shown as adjusted by marking "a/c adjusted" by Sh. S.K.Arora under his initials while the outstanding of this demand loan a/c for Rs. 7,50,750/ was dishonestly and fraudulently transferred to a new demand loan a/c no. 52 in the name of Madhu Kumar for Rs. 7,50,750/ showing as fresh advance on 24.01.94. The loan documents for the demand loan no. 52 namely LD4(DP Note) and LD5( ApplicationCum Authority Letter for Financial Assistance Against The Security of Bank's Deposits) dtd. 24.01.94 for Rs. 7,50,750/ had been filled by Sh. S.K.Arora and shown to be executed by Madhu Kumar who had signed in Hindi. Infact, Madhu Kumar is a fictitious person. The outstanding amount of Rs. 8,30,237/ of demand loan no. 52, after application of interest was carried over to new ledger sheet R52 in the name of Madhu Kumar. The outstanding of this loan a/c no. R52 as on 08.05.95 RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 9 of 158 10 was Rs. 8,58,140/.
10. Investigations had further revealed that on 08.05.98 Sh. S.K.Arora dishonestly allowed two demand loans as demand loan no. 104 in the name of Rupak Bajaj & Madhu Bajaj for Rs. 938806/ and demand loan no. 105 in the name of Madhu Bajaj and Rupak Bajaj for Rs. 8 lacs respectively. The combined proceeds of Rs. 17,38,806/(938806 + 800000) were utilized to adjust demand loan a/c no. R79 for Rs. 480349/, DL R78 for Rs. 400317/ and DL R52 for Rs. 858140/. All the 3 demand loan a/cs R79, R78 & R52 were fraudulently shown as adjusted by marking "A/c Closed" by Sh. S.K.Arora who had also made the credit entries of Rs. 480349/, 400317/ & Rs. 858140/ for adjusting the 3 demand loan a/cs. The ledger sheet of demand loan a/c no. 104 and 105 had been prepared by Sh. S.K.Arora who has also made the first debit entries udner his initials. The loan documents on record namely LD4(DP note) and LD5(Application CumAuthority Letter for Financial Assistance Against the Security of Bank's Deposit) dtd. 08.05.95 for Rs. 9,38,000/ which regard to DL A/c No 104 had been prepared by Sh. S.K.Arora and executed by Sh. Rupak Bajaj.
11. It was also revealed during investigation that the RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 10 of 158 11 outstandings in both the demand loan a/cs no. 104 in the name of Rupak Bajaj and Madhu Bajaj and demand loan no. 105 in the name of Madhu Bajaj and Rupak Bajaj were Rs. 1059295/ and Rs. 927645/ as on 13.04.96 after application of interest. Both the a/cs were fraudulently adjusted on 13.04.96 by debiting SB A/c No. 10742 of Kamal Kumar Ramesh Chander of OBC, Basant Lok alongwith two other demand loan a/cs Rajender Kumar and Moti Lal Aggarwal. The debit credit voucher in this regard had been prepared and passed by Sh. S.K.Arora.
12. Investigations had also revealed that Sh. Rupak Bajaj was running both the said firms viz. M/s House of Travels and M/s Oxford Travels Pvt. Ltd. He was also operating bank a/cs of both the firms and was authorized signatory to operate bank accounts of M/s House of Travels. Sh. Rupak Bajaj had expired on 08.08.99 due to heart attack.
13. Investigations further revealed that SB account No. 10742 was fraudulently opened on 12.04.96 by Sh. S.K.Arora in the fictitious name of Kamal Kumar Ramesh Chander by transfer of an amount of Rs. 85 lacs from various FDRs as detailed below: RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 11 of 158 12 S.No Date Folio/FDRs No. Favouring Amount(Rs) 1 27.03.96 4608/224/96 RameshChander 5,00,000/
2. 23.03.96 4604/216/96 Jagdish Kaur 7,50,000/
3. 23.03.96 4605/217/96 Jagdish Kaur 7,50,000/
4. 23.03.96 4603/215/96 Rajesh Kaur 5,00,000/
5. 23.03.96 4602/214/96 Rajesh Kaur 5,00,000/
6. 22.03.96 4601/212/96 RameshChander 90,000/
7. 22.03.96 4600/211/96 RameshChander 900,000/
8. 21.03.96 4596/206/96 RameshChander 7,00,000/
9. 21.03.96 4595/205/96 Sunil Kumar 5,00,000/
10. 21.03.96 4590/200/96 Ramesh Kumar 15,00000/
11. 16.03.96 4574/178/96 Jagdish Kumar 10,00,000/ Total 85,00,000/
14. All the above mentioned FDRs except at serial no. 4 & 5 were issued against cash while those at serial no. 4 & 5 were fraudulently issued by debiting the amount to demand loan A/c were adjusted from the SB A/c of Kamal Kumar Ramesh Chander of Mahipalpur Br. All the credit vouchers regarding issuance of the above mentioned FDRs had been prepared by Sh. S.K.Arora. And the credit vouchers against which FDRs at serial no. 4 & 5 had been issued by debiting the demand loan A/c had also been RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 12 of 158 13 signed by Sh. S.K.Arora. Payment of all the said FDRs was made prematurely on 12.04.96 and on the same day the total proceeds amounting to Rs. 85 lacs were fraudulently and dishonestly credited into a newly opened SB A/c NO. 10742 in the name of Kamal Kumar Ramesh Chander. The credit voucher dt. 12.04.96 regarding credit of the said amount of Rs. 85 lacs in the SB A/c of Kamal Kumar Ramesh Chander had been passed by Sh. Azad Singh and Sh. S.K.Arora.
15. Investigations have further revealed that on 13.04.96 an amount of Rs. 41,55,026/ was transferred unauthorizedly from the said SB A/c No. 10742 to four different demand loan A/cs as mentioned below:
1. R.K.Bajaj(DL 104) Rs. 10,59,295/
2. Madhu Bajaj(DL 105) Rs. 9,27,645/
3. Rajinder Kumar Rs. 11,11,144/
4. Moti Lal Aggarwal Rs. 10,56,942/ The consolidated debit voucher dt. 13.04.96 for Rs. 41,55,026/ regarding the above had been prepared and signed by Sh. S.K.Arora. The four credit vouchers showing credit to above mentioned four A/cs had also been prepared and signed by Sh. S.K.Arora. After crediting the said amounts the said D/L A/cs were RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 13 of 158 14 fraudulently got adjusted. The remaining amount of Rs. 43,44,974/ from the said SB A/c 10742 was debited on 17.04.96 out of which an amount of Rs. 28,44,974/ was deliberately transferred to Mahipalpur Branch through TPO No. 936756/178/96 dt. 17.04.96 for credit to SB A/c of Kamal Kumar Ramesh Chander while amount of Rs 15 lacs was transferred to D/L A/c of Kamal Kumar Ramesh Chander. On the transfer voucher dt. 13.04.96 pertaining to SB A/c No. 10742 it has wrongly been mentioned by Sh. S.K.Arora that the amount 41,55,026/ has been transferred to C/A whereas the said amount was transferred to Demand Loan A/c as discussed above.
16. Investigations have further revealed that SB A/c No. 12367 was opened in the fictitious name of Kamal Kumar Ramesh Chander on 17.04.96 at OBC Mahipalpur branch by Padam Kumar(A3) an employee of A2. The account was allowed to be opened by Sh. S.K.Arora who had also verified the specimen signatures of Sh. Kamal Kumar Ramesh Chander SB A/c No. 12367 was opened on 17.04.96 by transfer of Rs. 28,44,974/ from Basant Lok Branch vide TPO(Transfer Payment Order) No. 936756/178/96 on 17.04.96. The credit voucher showing deposit of said amount in the said A/c 12367 on 17.04.96 had been RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 14 of 158 15 prepared and signed by Sh. S.K.Arora. On 24.04.96 an amount of Rs. 19,86,940/ was transferred from DL A/c NO. 867 of M. Bajaj to this account. The debit credit voucher to this effect had been prepared and signed by Sh. S.K.Arora. On 17.04.96 Rs. 15 lacs had been withdrawn from this account vide self cheque no. 117051 dt. 17.04.96. The said cheque was deliberately passed for payment by Sh. S.K.Arora. On 24.04.96 a pay order No. 746583/1305/96 for Rs. 10 lacs had been issued in favour of Kamal Kumar by debiting Rs. 10 lacs to SB A/c No. 12367 of Kamal Kumar Ramesh Chander. The said pay order was collected by Basant Lok Branch through clearing on 24.04.96. The debit credit vouchers pertaining to SB A/c No. 12367 for Rs. 10 lacs are in the handwriting of Sh. S.K.Arora which also bears his signatures. The said pay order 1305/96 collected by OBC, Basant Lok was used to adjust a DL of Rs. 10 lacs in the name of Jagdish Chander allowed by Sh. Arora on 23.03.96 at Basant Lok Br. The DL of Rs. 10 lacs allowed in the name of Jagdish Chander was used to issue two FDRs of Rs. 5 lacs each in the name of Rajesh Kaur and was paid on 12.04.96 to the credit of SB a/c 10742 of Kamal Kumar Ramesh Chander at OBC, Basant Lok. Hence the DL amount of Rs. 10 lacs which was given in fictitious DL A/c RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 15 of 158 16 Kamal Kumar Ramesh Chander was fraudulentl y adjusted by amount debited from SB A/c Kamal Kumar Ramesh Chander.
17. Investigations have further revealed that on 06.05.96 an amount of Rs. 21.68 lacs had been transferred from the demand loan account of Rajinder Aggarwal and on the same day Rs. 10 lacs have been transferred from C/A No. 1571 of M/s Shree Associates to this account i.e S.B A/c No. 12367. Both the credit debit vouchers had been prepared and signed by Sh. S.K.Arora. The amount of Rs. 21.68 lacs is the clubbed amount of Rs. 11,11,144/ and Rs. 10,56,942/ which was illegally debited by Sh. Arora on 13.04.96 at OBC, Basant Lok Branch in SB A/c 10742 of Kamal Kumar Ramesh Chander to adjust two demand loans of Rajinder Kumar and Moti Lal Aggarwal at Basant Lok Br., alongwith DL No. 104 of R.K.Bajaj and DL 105 of Madhu Bajaj. Thus the total amount of Rs. 41,55,026/ was illegally debited to SB A/c 10742 of Kamal Kumar Ramesh Chander at OBC, Basant Lok was credited back to SB A/c 12367 of Kamal Kumar Ramesh Chander at OBC, Mahipalpur by debiting DL A/c 867 of M.Bajaj and DL A/c 877 of Rajinder Aggarwal.
18. Investigations have further revealed that Sh. Ashok Mehra(A2) is running firms in the name of M/s Mehra RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 16 of 158 17 Constructions and M/s Mehra Builders engaged in construction business and was maintaining the bank a/cs at OBC, Basant Lok Br. In addition to routine banking, he used to deposit his black money with Sh. S.K.Arora, the then Br. Manager OBC, Basant Lok who used to invest the same in FDRs in benami names. Sh. Ashok Mehra had declared his black money amounting to Rs. 1.50 crores during the voluntary disclosure scheme(VDS) in 199798 and had also paid the requisite tax. Investigation had also revealed that during January to March, 1995, Sh. Ashok Mehra had given an amount between Rs. 70 lacs and Rs. 90 lacs to Sh. S.K.Arora for investing the same at Basant Lok Branch. In April, 1996 when he contacted Mr. S.K.Arora to get his money back, he was informed that his entire money had been fraudulently transferred to benami account in the name of Kamal Kumar Ramesh Chander.
19. In criminal conspiracy with Sh. S.K.Arora(A1) and Sh. Ashok Mehra(A2) with the object to cheat the bank, Sh. Padam Kumar(A3) Accountant of Sh. Mehra knowingly and fraudulently signed as Kamal Kumar Ramesh Chander on the account opening cum specimen signature card of SB A/c 12367. A cheque book was also got issued by Sh. Ashok Mehra in the said account by RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 17 of 158 18 signing as Kamal Kumar and subsequently the money was fraudulently and dishonestly withdrawn from the said account by Sh. Ashok Mehra by signing in the name of fictitious person as Kamal Kumar.
20. Investigation had also revealed that on 10.06.96 an FDR No. 4370 favouring Sh. Kamal Kumar for Rs. 125000/ was issued by debiting SB A/c 12367. The debit/credit vouchers in this regard have been prepared and passed by Sh. Subhash Aghi and illegally authorized by Sh. S.K.Arora. This FDR was paid on 15.03.97 and a pay order No. 802143/943/97 dated 15.03.97 for Rs. 1,31,005/ (inclusive of the interest of the FDR) was issued. On 08.08.96 an FDR No. 4599/1585/96 for Rs. 2.50 lacs in the name of R.C.Jain was issued by debiting SB A/c 12367. The debit/credit voucher in this regard had been prepared and passed by Sh. S.K.Arora. This FDR was renewed on 03.10.96 alongwith interest as CDR No. 7392 favouring Sh. Bhagwat Sharma, CDR No. 7393 favouring Sh. Mayank Sharma for Rs. 60,000/ each, CDR No. 7394 favouring Sh. Paryank Sharma for Rs. 72,835/ and CDR No. 7391 favouring Sh. Rajesh Sharma for Rs. 60,000/. CDR Nos 7392, 7393 and 7394 were paid on 27.02.97 for credit in Demand Loan 1030 of U.C.Jain CDR No. 7391 was paid on 15.03.97 for RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 18 of 158 19 issuance of pay order No. 802141/941/97 favouring Sh. Rajesh Sharma for Rs. 62,130/ dated 15.03.97. Further on 02.09.96, three CDRs NO. 7205 for Rs. 1,90,000/, 7207 for Rs. 1,90,000/ and 7211 for Rs. 1,84,449/ all favouring Sh. Rajiv Kumar dated 02.09.96 were issued by debiting SB A/c 12367. The debit/credit voucher in this regard have been illegally prepared and passed by Sh. S.K.Arora. All the three CDRs were paid on 08.03.97 and three pay orders Nos. 802018/818 for Rs. 1,99,614/, pay order No. 802019/819 for Rs. 1,99,614/ and pay order No. 802015/815 for Rs. 1,90,372/ all dated 08.03.97 favouring Sh. Rajiv Kumar were issued.
21. All the said pay order No. 802018 for Rs. 199614, pay order No. 802019 for Rs. 199614, pay order No. 802015 for Rs. 193782 all dtd.08.03.97, pay order No. 802143 for Rs. 131005 dtd. 15.03.97 and pay order No. 802141 for Rs. 62130/ dated 15.03.97 issued by OBC, Mahipalpur Branch as payment of the FDRs/CDRs made from SB A/c 12367 of Kamal Kumar Ramesh Chander were collected by OBC, New Railway Road Branch, Gurgaon. Pay order Nos . 802018, 802019 and 802015 were collected and credited in SB A/c 16634 of Sh. Rajiv Kumar opened on 13.03.97, pay order No. 802143 was collected and credit in SB RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 19 of 158 20 A/c 16709 of Kamal Kumar opened on 22.03.97 while pay order No. 802141 was collected and credited in SB A/c 16708 of Rajesh Sharma opened on 22.03.97 at OBC, New Railway Branch, Gurgaon.
22. Investigation had also disclosed that SB A/c 16708, 16709 and 16634 in the names of S/Sh. Rajesh Sharma, Kamal Kumar and Rajiv Kumar were opened on 22.03.97, 22.03.97 and 13.03.97 respectively at OBC, Railway Road Gurgaon Branch, Gurgaon which were introduced by Sh. Sunil Jain on the request of Sh. Ashok Mehra(A2). All the said three accounts were closed on 12.08.97 after withdrawing all the amounts from the said account through self cheques by the account holders. During investigation the said three persons were not found to have resided at their given addresses.
23. Investigations has further revealed that on 24.04.96 Demand Loan of Rs. 19,86,940/ was illegally sanctioned in the name of M.Bajaj in DL A/c 867 by Sh. S.K.Arora against the pledge of a fake FDR No. 276/96 for Rs. 20 lacs and on the same day i.e on 24.04.96 the said amount was fraudulently transferred to SB A/c No. 12367. Debit and Credit Voucher to this effect are prepared by Sh. S.K.Arora himself and also bears his signatures.
RC NO.4(E)/1998
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The form h as been filled by Sh. S.K.Arora. Applicationcum authority letter for financial assistance against security of banks deposit (LD5) dt. 24.04.96 for Rs. 19,86,940/ is purported to have been signed by Mrs. Madhu Bajaj in Hindi. But Mrs. Madhu Bajaj has disowned the said signatures. The form had been filled in by Sh. S.K.Arora. The said fake FDR dt. 31.03.95 which is purported to be valuable security and had been shown to be issued in the joint names of Kulwant Singh and M.Bajaj for Rs. 20 lacs was fraudulently prepared and issued by Sh. S.K.Arora who has also mentioned "lien of B/o, Mahipalpur w.e.f 17.04.96" on the face of the instrument. Investigation had also revealed that the said FDR for Rs. 20 lacs in the same names is a fake FDR and no such FDR was ever issued from OBC, Basant Lok Branch. The total outstanding in DL867 was Rs. 2065450/ as on 31.03.97 including interest.
24. Investigations had further revealed that a CA No. 1549 in the name of House of Travels was opened on 12.04.96 at OBC, Mahipalpur Branch which was allowed by Sh. S.K.Arora. On 17.04.96 TPO No. 167469/274/96 for Rs. 17,11,277.17 was issued in favour of account of M/s House of Travel at OBC, Basant Lok Branch, New Delhi by which the overdraft in current account RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 21 of 158 22 1153 of M/s House of Travels at Basant Lok Branch was illegally adjusted. As on 24.05.96 this account was showing overdraft of Rs. 19,44,434.17 which increased to 2994260 as on 31.03.97 with application of interest.
25. Investigations had further revealed that an overdraft of Rs. 20 lacs was sanctioned on 17.04.96 in CA 1549 of M/s House of Travels by Sh. S.K.Arora at OBC, Malhipalpur. In loan document LD5 security has been mentioned as FDR No. 265/95 dated 30.03.95 for Rs. 24 lacs in the name of House of Travels. But the security i.e the said instrument(FDR/CDR) is not available on record and in its place one handwritten receipt under the signature of Sh. S.K.Arora is available, mentioning therein 'CDR for Rs. 24 lacs handed over to Sh. S.K.Arora CDR issued by B/o, Basant Lok'. The proceeds of the said OD A/c 1549 of M/s House of Travels were illegally used to adjust the overdraft a/c 1153 of House of Travels at Basant Lok Br. The said FDR No. 265/95 dated 30.03.95 for Rs. 24 lacs in the name of House of Travels is also a fake FDR, no such FDR was ever issued in the name of M/s House of Travels.
26. Investigations had further revealed that Sh. Arora took the physical possession of the said FDR on 13.02.97 alongwith two RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 22 of 158 23 other fake FDRs from Mahipalpur Br. He issued handwritten receipt in lieu of the same FDRs.
27. It was also revealed during investigation that all the above said accounts viz., current a/c 936 of M/s Oxford Travels, current a/c 1153 of M/s House of Travels at OBC, Basant Lok, New Delhi and current a/c 1549 of M/s House of Travels at OBC, Mahipalpur, New Delhi were being operated by Sh. Rupak Bajaj. Sh. Rupak Bajaj had since expired on 09.08.99. Mrs. Madhu Bajaj had disowned her signatures on the cheques vide which money was withdrawn from current a/c 153. The total wrongful loss caused to the bank amounts to Rs. 50,59,710/.
28. Investigations had also disclosed that a total payment of Rs. 24,600/ was made to Sh. Gaurav Arora, S/o Sh. S.K.Arora. The said payments were made by way of 7 cheques of which 5 were issued from current account 936 and two cheques from current account 1549. It was further revealed that a total payment of Rs. 15,000/ was also made to Mrs. Komal Arora by way of 6 cheques for Rs. 2500/ each, out of which 4 were issued from current account 1153 and two from current account 1549. The said 6 cheques were deposited by Mrs. Komal Arora in her SB a/c No. 50264 at Canara Bank, Mayur Vihar, Delhi. While Sh. Gaurav RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 23 of 158 24 Arora deposited the said 7 cheques in his RD account no. 1268 at Canara Bank, Mayur Vihar, Delhi. It was also revealed that Sh. Rupak Bajaj was a distant cousin of Sh. S.K.Arora and also that Sh. Gaurav Arora had come for training to Mr. Rupak Bajaj for some days during 199495.
29. That there was sufficient material, oral as well as documentary evidence to show that the aforesaid accused persons conspired criminal with one another and cheated the bank to the tune of Rs. 50,59,710/, the amount of which is still outstanding.
30. The questioned documents were sent to Govt. Examiner of Questioned Document, Shimla for opinion. The handwriting expert had given positive opinion on the writing/signatures of S/Sh. S.K.Arora, Late Rupak Bajaj, Ashok Mehra and Padam Kumar. The aforesaid facts disclose the commission of offences U/s 120B IPC, r/w Sec. 420 IPC & Sec. 13(2) r/w Sec 13(1)(d) of Prevention of Corruption Act 1988 on the part of Sh. S.K.Arora and Rupak Bajaj. And u/s 120B, r/w 420, 467, 468 IPC against S/Sh. S.K.Arora, Ashok Mehra and Padam Kumar and for the substantive offences thereof.
RC NO.4(E)/1998
CBI Vs S.K.Arora & Ors. 24 of 158
25
31. Further during the course of investigations, Sh. Rupak Bajaj had been reported to have expired hence his name was put in column no. 2. Therefore, appropriate order was sought qua Late Rupak Bajaj. It also stated that sufficient evidence had not come forth to substantiate the allegations against Smt. Madhu Bajaj, hence her name was put in column 2.
Since Sh. S.K.Arora(A1) had been dismissed from the service of bank, hence no previous sanction for prosecution of Sh. S.K.Arora was required.
32. Vide order dated 28.09.2000 chargesheet was filed in the Court. Thereafter, vide order dated 25.11.2000, cognizance was taken and the accused persons were summoned for the offence(s) u/S 120B IPC r/w Sec.420 IPC and Sec.13(2) r/w Sec.13(1)(d) of PC Act, 1988 as well as substantive offence(s) thereof. After supply of documents and other formalities, vide detailed order dated 18.01.2007, it was ordered that a charge u/S 120B IPC r/w Sec.13(2) r/w Sec.13(1)(d) of the PC Act, Sec.420/467/468 and 471 IPC and substantive offence(s) u/S 13(2) r/w Sec.13(1)(d) of the PC Act and Sec.420/467/468 and 471 IPC were made out against accused S.K.Arora (A1), whereas a charge u/S 120B IPC r/w Sec.13(2) r/w Sec.13(1)(d) of PC Act and Sec.420/467/468 RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 25 of 158 26 and 471 IPC and substantive offence u/S 467 and 471 IPC was made out against accused Padam Kumar (A3), vide same order a charge u/S 120B IPC r/w Sec.13(2) r/w Sec.13(1)(d) of PC Act and Sec.420/467/468 and 471 IPC and substantive offence u/S 420/467/468/471 IPC was made out against the accused Ashok Mehra (A2), formal charges were framed on 01.02.07 to which all the above accused persons pleaded not guilty and claimed trial.
33. During trial, the main accused S.K.Arora (A1) died and the proceedings against him stood abated vide order dated 16.05.15.
34. The prosecution in the present case has examined 43 witnesses.
35. PW1 is Sh.S.K.Singh, who was working as Chief Vigilance Officer with the Oriental Bank of Commerce (OBC) at its Head office at Connaught Place, New Delhi. He has proved the complaint dated 22.10.1998 (D2) (running into 5 pages) as Ex.PW1/A.
36. PW2 is Sh.C.M.Khurana, who was working as Chief Manager (Credit) with the Regional Office of OBC, Karol Bagh, Delhi. He has proved certain documents which are Ex.PW2/1 to Ex.PW2/4 and Ex.PW2/A to Ex.PW2/D. RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 26 of 158 27
37. PW3 is Sh.S.K.Kakkar, who was working as Asst. Regional Manager (Staff) at Regional Office of OBC, New Delhi. He had handed over personal files of accused S.K.Arora and one more person to the IO. He has proved the relevant documents as Ex.PW3/A to Ex.PW3/G.
38. PW4 is Sh.O.P.Sharma, who was posted as Chief Manager (Inspection & Control Dept.), OBC Head Office, New Delhi. He has deposed that he alongwith other members of the bank carried out special investigation at Mahipal Pur Branch of OBC and he has proved the Special Investigation Report as Ex.PW17/A (colly.).
39. PW5 is Sh.Ravi Mehra, who was posted as Manager in Mahipal Pur Branch of OBC from February 1993 to February 1995. He had also worked with the main accused S.K.Arora for some time. He has proved certain relevant documents pertaining to the present case including account opening form and statement of accounts, same are Ex.PW5/A to Ex.PW5/G, Ex.PW5/H1 to Ex.PW5/H8, Ex.PW5/J, Ex.PW5/K1 to Ex.PW5/K91.
40. PW6 is Sh.S.M.Lamba, who was posted in the New Railway Road, Gurgaon Branch of OBC. He has proved the account opening form in the name of Rajeev Kumar in the said RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 27 of 158 28 branch and specimen signature card and also the account opening form in the name of Kamal Kumar, Rajesh Sharma and their specimen signatures card and certain cheques transacted by them. The same are Ex.PW6/A to Ex.PW6/G, Ex.PW6/X1 to Ex.PW6/X3.
41. PW7 is Sh.M.K.Sharma, who was also posted in the Railway Road, Gurgaon Branch of OBC as Chief Manager. He has also proved certain documents pertaining to Mahipal Pur branch and seizure memos vide which certain documents were handed over by him to the CBI. The documents are Ex.PW7/A to Ex.PW7/H.
42. PW8 is Sh.J.S.Sachdeva, who was posted as Chief Manager, OBC, Regional Office Karol Bagh. He has deposed that he was deputed by the Regional Head, Karol Bagh at that time to go to Mahipal Pur Branch, since there were complaints of revenue leakage in the said branch and to assist Sh.P.K.Malhan, AGM of the bank, who was already making inspection there and scrutinizing the documents. He has proved a document Ex.PW8/A, which is a receipt of cumulative deposit receipt bearing signatures of A1.
43. PW9 is Ms.Neelam Ohri, she was also working in the RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 28 of 158 29 Mahipal Pur branch of OBC as Hall Incharge and Loans Officer. She has proved certain credit vouchers pertaining to the account of House of Travels. The said documents are Ex.PW9/A, Ex.PW9/A1, Ex.PW9/B, Ex.PW9/B1, Ex.PW9/C, Ex.PW9/D, Ex.PW9/E, Ex.PW9/E1, Ex.PW9/F, Ex.PW9/F1, Ex.PW9/G, Ex.PWG1, Ex.PW9/H, Ex.PW9/J, Ex.PW9/J1, Ex.PW9/K, Ex.PW9/K1, Ex.PW9/L, Ex.PW9/L1, Ex.PW9/M, Ex.PW9/N, Ex.PW9/N1, Ex.PW9/P to Ex.PW9/T.
44. PW10 is Sh.K.K.Dogra, who was posted as Officer at Basant Lok Branch of OBC from 1987 to 1993, from there he was transferred to Mahipal Pur Branch where he remained posted for two years. He had also worked with main accused S.K.Arora (A1). He has proved the account opening form and certain cheques issued by the House of Travels which are already Ex.PW5/A, Ex.PW5/K3, Ex.PW5/K5, Ex.PW10/A, Ex.PW5/K87, Ex.PW5/K88, Ex.PW10/B to Ex.PW10/H.
45. PW11 is Ms.Lily Aggarwal, she has deposed that she was posted at Basant Lok branch of OBC in 1991 as Officer and she was posted there till 1997 and A1 was the Branch Incharge of Basant Lok Branch. She has proved certain cheques issued by M.Bajaj pertaining to House of Travels which are Ex.PW11/A1 to RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 29 of 158 30 Ex.PW11/A78.
46. PW12 is Sh.Gulshan Kumar, who was working at Railway Road Branch, Gurgaon of OBC where he remained posted till year 2000. He has proved the account opening form in the name of Rajesh Sharma already Ex.PW6/C and that of Kamal Kumar already Ex.PW6/B and that of Rajiv Kumar already Ex.PW6/A and certain pay orders issued from the said account which are Ex.PW12/A to Ex.PW12/E.
47. PW13 is Sh.Sanjeev Sahani, who has deposed that he was working in the office of OBC and was posted in Basant Lok Branch, OBC in the year 1991 and was posted there till May 1997. He knew (A1) S.K.Arora, as he was posted as Branch Manager of OBC during the said period and he was posted there from 1991 till 1996. He could identify the handwriting and signatures of (A1) S.K.Arora, as he had worked with him. He has proved certain documents including the account opening form in the name of House of Travels opened by Ms.Madhu Bajaj as Ex.PW13/A, also bearing signatures of accused S.K.Arora (A1). He after seeing credit voucher dated 24.04.1996(D550) for the amount of Rs. 19,86,940/ stated that it was prepared in the handwriting of (A1) S.K.Arora and same is ExPW13/B vide RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 30 of 158 31 which amount of Rs. 1986940/ was credited into S.B.Account of Kamal Kumar Ramesh Chander.
He after seeing cheque no. 117051 dated 17.04.1996(D
547) for Rs. 15,00,000/ drawn by Kamal Kumar, identified the signatures of accused S.K.Arora vide which he passed the aforesaid cheque and same is already Ex PW26/14. He after seeing cheque no. 117053 dated 04.05.1996(D
552) for Rs. 4 lacs stated that same bears his signatures, vide which he had passed the aforesaid cheque and amount was paid to (A1) S.K.Arora in his cabin, as customer was known to him and sitting with him. He further deposed that he had never met Sh. Kamal Kumar and payment towards cheques drawn by Kamal Kumar used to be given to accused S.K.Arora on his instructions and the cheque ExPW13/C was filled in the handwriting of accused S.K.Arora.
He has proved FDR No. 1337/96 dated 10.06.1996 for Rs. 1.25 lacs(D524) favouring Kamal Kumar as ExPW13/D and he has also proved the credit voucher dated 15.03.1997 for Rs. 131005/(D525) vide which pay order was prepared on authorization of Sh. Updesh Sharma and same is ExPW13/E. After seeing the FDR voucher dated 02.09.1996(D569) RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 31 of 158 32 favouring Sh. Rajiv Kumar he stated that it was filled in the handwriting of accused S.K.Arora and amount is overwritten in blue as well as black ink, which is ExPW13/F. After seeing FDR voucher dated 02.09.1996(D571) favouring Sh. Rajiv Kumar he stated that it was filled in the handwriting of accused S.K.Arora and amount is overwritten in blue as well as black ink, which is ExPW13/G. He has proved the credit transfer voucher(D380) dated 17.04.1996 amounting to Rs. 28,44,974/, vide which TPO was prepared favouring Kamal Kumar Ramesh Chander and same is ExPW13/H. After seeing the debit transfer voucher dated 17.04.1996(D381) for Rs. 43,44,974/ stated that it was debited in account no. 10742 maintained in the name of Kamal Kumar Ramesh Chander and he identified the signatures of Sh. Vinay Sagar Gupta at point A, who passed the debit voucher. Same is ExPW13/J. After seeing cheque no. 453573 dated 09.06.93 for Rs. 15000/(D278) already ExPW11/A1 stated that it was passed by him and bears his signatures at point A. He after seeing cheque no. 453574 dated 10.06.1993 for RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 32 of 158 33 Rs. 35000/(D108), stated that the aforesaid cheque was passed by him. He identified his signatures at point A and also identified signatures of S.K.Arora at point B vide which he allowed to pay and the same is ExPW13/K. After seeing cheque no. 507638 dated 23.07.1993 for amount of Rs. 20,000/(D280) favouring self he identified his signatures at point A for passing the cheque and the same was allowed by Sh. Rajiv Luthra under his signatures at point B,which he identified as he had worked with him and cheque is now Ex PW13/L. Similarly, after seeing cheque no. 507642 dated 04.08.1993 for amount Rs. 20,000/(D281) favouring self he identified his signatures at point A for passing the cheque and the same was allowed by Sh. Rajiv Luthra under his signatures at point B, which he identified as he had worked with him and cheque is now ExPW13/M. Similarly, after seeing cheque no. 507644 dated 13.08.1993 for amount Rs. 30,000/(D282) favouring self he identified his signatures at point A for passing the cheque and the same was allowed by Sh.S.K.Arora under his signatures at point B, which he identified, as he had worked with him and cheque is RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 33 of 158 34 now ExPW13/N. Similarly, after seeing cheque no. 507645 dated 16.08.1993 for amount Rs. 25,000/(D283) favouring self he identified his signature at point A for passing the cheque and the same was allowed by Sh.Rajiv Luthra under his signatures at point B, which he identified as he had worked with him and cheque is now ExPW13/O. Similarly, after seeing cheque no. 507648 dated 30.08.1993 for amount Rs. 20,000/(D284) favouring self he identified his signature at point A for passing the cheque and the same was allowed by Sh.S.K.Arora under his signatures at point B, which he identified, as he had worked with him and cheque is now ExPW13/P. Similarly, after seeing cheque no. 046201 dated 04.09.1993 for amount Rs. 20,000/(D285) favouring self he identified his signature at point A for passing the cheque and the same was allowed by Sh.S.K.Arora under his signatures at point B, which he identified as he had worked with him and cheque is now ExPW13/Q. Similarly, after seeing cheque no. 046228 dated 06.12.1993 for amount Rs. 30,000/(D289) favouring self he identified his signatures at point A for passing the cheque and RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 34 of 158 35 the same was allowed by Sh.S.K.Arora under his signatures at point B, which he identified, as he had worked with him and cheque is now ExPW13/R. Similarly, after seeing cheque no. 046230 dated 11.12.1993 for amount Rs. 50,000/(D290) favouring self he identified his signatures at point A for passing the cheque and the same was allowed by Sh.S.K.Arora under his signatures at point B, which he identified, as he had worked with him and cheque is now ExPW13/S. Similarly, after seeing cheque no. 046234 dated 30.12.1993 for amount Rs. 25,000/(D291) favouring self he identified his signatures at point A for passing the cheque and the same was allowed by Sh.Rajiv Luthra under his signatures at point B, which he identified, as he had worked with him and cheque is now ExPW13/T. Similarly, after seeing cheque no. 046227 dated 03.12.1993 for amount Rs. 70,000/(D292) favouring self he identified his signature at point A for passing the cheque and the same was allowed by Sh.S.K.Arora under his signatures at point B, which he identified as he had worked with him and cheque is now ExPW13/U. Similarly, after seeing cheque no. 046235 dated 07.01.1994 for amount Rs. 40,000/(D293) favouring self RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 35 of 158 36 he identified his signature at point A for passing the cheque and the same was allowed by Sh.S.K.Arora under his signatures at point B, which he identified as he had worked with him and cheque is now ExPW13/V. Similarly, after seeing cheque no. 090119 dated 11.01.1994 for amount Rs. 12,500/(D294) favouring self he identified the signatures at point A of Sh.S.K.Arora, and cheque is now ExPW13/W. Similarly, after seeing cheque no. 046248 dated 27.01.1994 for amount Rs. 30,000/(D294) favouring self he identified his signatures at point A for passing the cheque and the same was allowed by Sh.S.K.Arora under his signatures at point B, which he identified as he had worked with him and cheque is now ExPW13/X. Similarly, after seeing cheque no. 056503 dated 19.02.1994 for amount Rs. 15,000/(D297) favouring self he identified his signature at point A for passing the cheque and the same was allowed by Sh.S.K.Arora under his signatures at point B, which he identified, as he had worked with him and cheque is now ExPW13/Y. Similarly, after seeing cheque no. 056504 dated 23.02.1994 for amount Rs. 35,000/(D298) favouring self he RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 36 of 158 37 identified his signatures at point A for passing the cheque and the same was allowed by Sh.S.K.Arora under his signatures at point B, which he identified as he had worked with him and cheque is now ExPW13/Z. Similarly, after seeing cheque no. 056506 dated 28.02.1994 for amount Rs. 40,000/(D299) favouring self on which he identified his signatures at point A for passing the cheque and the same was allowed by Sh.S.K.Arora under his signatures at point B, which he identified as he had worked with him and cheque is now ExPW13/AA. Similarly, after seeing cheque no. 056508 dated 04.03.1994 for amount Rs. 20,000/(D
300) favouring self he identified his signatures at point A for passing the cheque and the same was allowed by Sh.S.K.Arora under his signatures at point B, and cheque is now ExPW13/AB. Similarly, after seeing cheque no. 056509 dated 10.03.1994 for amount Rs. 30,000/(D301) favouring self he identified his signatures at point A for passing the cheque and the same was allowed by Sh.S.K.Arora under his signatures at point B, which he identified as he had worked with him and cheque is now ExPW13/AC.
Similarly, after seeing cheque no. 056515 dated 16.03.1994 for amount Rs. 30,000/(D302) favouring self he RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 37 of 158 38 identified his signature at point A for passing the cheque and the token of the said cheque was given to Sh. S.K.Arora and is Ex PW13/AD.
Similarly, after seeing cheque no. 056519 dated 06.04.1994 for amount Rs. 35,000/(D304) favouring self he identified his signatures at point A for passing the cheque and the same was allowed by Sh.S.K.Arora under his signatures at point B, and cheque is now ExPW13/AE.
Similarly, after seeomg cheque no. 056521 dated 13.04.1994 for amount Rs. 55,000/(D305) favouring self he identified his signatures at point A for passing the cheque and the same was allowed by Sh.S.K.Arora under his signatures at point B, and cheque is now ExPW13/AF.
Similarly, after seeing cheque no. 056522 dated 18.04.1994 for amount Rs. 40,000/(D306) favouring self he identified his signature at point A for passing the cheque and cheque is now ExPW13/AG.
Similarly, after seeing cheque no. 056520 dated 22.04.1994 for amount Rs. 60,000/(D307) favouring self he identified his signature at point A for passing the cheque and the same was allowed by Sh.Rajiv Luthra under his signatures at RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 38 of 158 39 point B, and cheque is ExPW13/AH.
Similarly, after seeing cheque no. 056525 dated 30.04.1994 for amount Rs. 30,000/(D308) favouring self he identified signature of Sh. Updesh Sharma at point A for passing the cheque and the same was allowed by Sh.S.K.Arora under his signatures at point B, and cheque is ExPW13/AJ. Similarly, after seeing cheque no. 056537 dated 26.05.1994 for amount Rs. 25,000/(D315) favouring self he identified his signature at point A for passing the cheque and the same was allowed by Sh.Rajiv Luthra under his signatures at point B, and cheque is ExPW13/AK.
Similarly, after seeing cheque no. 507646 dated 21.08.1993 for amount Rs. 25,000/(D324) favouring self he identified his signature at point A for passing the cheque and the same was allowed by Sh.Rajiv Luthra under his signatures at point B, and cheque is ExPW13/AL.
On a question put by the prosecution, the witness gave answer that he had checked the signature of Madhu Bajaj from the bank record while passing the cheques. On being further asked a question by the prosecution, the witness gave answer that normally Sh. Rupak Bajaj, husband of Madhu Bajaj RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 39 of 158 40 presented the cheque in the bank. Sometimes Mr. Arora also used to present the cheque.
After seeing the pages number 191 to 200 of cheque book issue register which are in loose sheets for the period 03.04.1996 to 18.06.1996(D639), he identified the entry dated 17.04.1996 for the account no. 12367 maintained in the name of Kamal Kumar for issuance of cheque book bearing cheque no. 117051 to 117060 and stated that the said entry was in his handwriting. Same is encircled at point A and is exhibited as ExPW13/AM. Vide aforesaid entry he gave the cheque book to Sh. S.K.Arora through Peon. The said account was in the name of Kamal Kumar.
48. PW14 is Sh.B.K.Jain, who was posted as Branch Manager, Mahipal Pur Branch, OBC, New Delhi. He remained posted there from Feb.1997 till October 2002. He has proved certain seizure memos Ex.PW14/A and Ex.PW14/B.
49. PW15 is Mr.B.R.Tangri. He has also deposed that he was posted as Chief Manager, Basant Lok Branch, OBC from May 1998 to 2000 and in the year 1999 he had provided certain documents which were seized by CBI vide seizure memos Ex.PW15/A and Ex.PW15/B. RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 40 of 158 41
50. PW16 is Mr.J.N.Ahuja, who has deposed that in the year 1997 he was posted as Astt. General Manager in Inspection & Control Dept. of OBC, Janpat, Delhi and on 12/13.02.97 Mr.O.P.Mahajan, Genl.Manager came to know about certain bunglings at OBC, Mahipal Pur Branch, where it was alleged that the payments of the fixed deposits were placed in loan accounts. Mr.Mahajan instructed him to inspect Mahipal Pur Branch alongwith Mr. M.K.Sharma, Sr.Manager for inspection and on 13.02.97 they inspected the branch and on 14.02.97 they gave the report to Mr.Mahajan. The relevant report has been proved by him as Ex.PW17/A, Ex.PW17/A1 and Ex.PW17/B and Ex.PW17/B1.
51. PW17 is Sh.Harsh Kumar, Jr.Judicial Assistant, from the court of Spl.Judge, Karkardooma. He has proved the certified copies of the documents summoned by the prosecution Ex.PW17/A and Ex.PW17/B.
52. PW18 is Sh.Ashok Verma, who was posted as Chief Manager, Inspection & Control Dept. Head Office OBC, Jhandewalan, he remained posted there till Oct.1997. He stated that on 17.02.97 Mr.O.P.Mahajan directed him to have regular inspection of Basant Lok Branch. Mr.R.K.Tanwar, Dy.Chief Manager assisted him and Mr.J.N.Ahuja was to supervise and RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 41 of 158 42 they started the inspection of Basant Lok Branch on 18.02.97 and submitted their report on 15.05.97 to Mr.Mahajan, wherein they noticed serious irregularities of fraudulent nature. He has also proved the relevant portion of the said report Ex.PW17/B and Ex.PW17/B1 and vide seizure memo Ex.PW18/A he had handed over certain documents to the CBI.
53. PW19 is Sh.N.C.Khanna, who was posted as Manager in Basant Lok Branch, New Delhi, where he remained posted from 1997 to 2002. He had handed over certain documents sought by the CBI to the IO which were seized vide seizure memo Ex.PW19/A to Ex.PW19/G.
54. PW20 is Sh.B.B.Malhotra., who was posted either in the Personnel Dept. or Vigilance Dept. of OBC, Head Office, Cannaught place in the year 1999. He had handed over certain documents called by the CBI, which were seized vide seizure memo Ex.PW20/A.
55. PW21 is Sh.A.C.Mishra, who was posted as Dy.Chief Manager in either Personnel or Vigilance Dept. in the Head office of OBC. He has proved the seizure memo dated 19.04.99 Ex.PW21/A. RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 42 of 158 43
56. PW22 is Sh.R.C.Sharma, Chief Manager, Hyderabad, OBC, who at the relevant time was posted as an officer in OBC Mahipal Pur Branch. He has proved the seizure memo dated 25.09.2000 Ex.PW22/A and also another seizure memo dated 22.09.2000 Ex.PW22/B.
57. PW23 is Sh.S.V.Taneja, who was posted as Dy.Chief Manager in Vigilance Dept., Head office of OBC, New Delhi. He has proved guidelines as per which a Bank Manager is required to intimate to his higher authorities about his relationship with the applicant in case of near relative. The said guidelines are already Ex.PW2/A.
58. PW24 is Sh.Rajiv Kumar, who was posted as Probationary Officer at Basant Lok branch and his duties were to attend work on all the seats by rotation including loans, savings, current, misc. etc. He stated that he knew S.K.Arora, Manager of Basant Lok branch and he proved various documents including the account opening form in the name of House of Travels and various vouchers and cheques bearing the signatures of S.K.Arora which are Ex.PW24/A to Ex.PW24/Y, Ex.PW24/Y1, Ex.PW24/Z to Ex.PW24/Z29.
59. PW25 is Sh.Azad Singh, who has deposed that he was RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 43 of 158 44 working in OBC, Basant Lok branch at the relevant time. He has proved the statement of account no.10742 Ex.PW25/A in the name of Kamal Kumar and Ramesh Chander at OBC, Basant Lok Branch authenticated by S.K.Arora. He has also proved the debit voucher dated 12.04.96 Ex.PW25/B (D358) for Rs.5 lakhs. vide which Rs. 5 lacs were debited from FDR A/c No. 4608, in the name of Ramesh Chander and debit voucher Ex. PW25/B, was passed by him, bearing his signatures at point A. He after seeing FDR Folio No. 4608 dated 27.03.1996 Ex. PW25/C(D357) in the name of Ramesh Chander for a sum of Rs. 5 lacs, stated that it bears his signatures at point A and the amount was debited by him vide Debit Voucher Ex. PW25/B. He after seeing the Debit Voucher dated 12.04.1996 Ex. PW25/D(D362) for Rs.7,50,000, vide which Rs.7.5 lacs were debited from FDR A/c No. 4604, in the name of Jagdish Kaur and debit voucher Ex. PW25/D was passed by him and bears his signatures at point A. He after seeing the FDR Folio No. 4604 dated 23.03.1996 Ex. PW25/E(D359) in the name of Jagdish Kumar for a sum of Rs. 7.5 lacs, stated that it bears his signatures at point A and the amount was debited by him vide Debit Voucher Ex. PW RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 44 of 158 45 25/E. He after seeing the Debit Voucher dated 12.04.1996 Ex. PW25/F(D360) for Rs.7. 5 lacs, stated that vide the said debit voucher Rs. 7.5 lacs were debited from FDR A/c No. 4605, in the name of Jagdish Kaur and debit voucher Ex. PW25/F was passed by him and bears his signatures at point A. He after seeing the FDR Folio No. 4605 dated 23.03.1996 Ex. PW25/G(D361) in the name of Jagdish Kaur for a sum of Rs. 7.5 lacs, stated that it bears his signatures at point A and the amount was debited by him vide Debit Voucher Ex. PW25/G. He after seeing the Debit Voucher dated 12.04.1996 Ex. PW25/H(D363) for Rs. 5 lacs, stated that vide it Rs. 5 lacs were debited from FDR A/c No. 4603, in the name of Rajesh Kaur and debit voucher Ex. PW25/H was passed by him and bears his signatures at point A. He after seeing the FDR Folio No. 4603 dated 23.03.1996 Ex. PW25/I(D364) in the name of Rajesh Kaur for a sum of Rs. 5 lacs, stated that it bears his signatures at point A and the amount was debited by him vide Debit Voucher Ex. PW25/I. He after seeing the Debit Voucher dated 12.04.1996 Ex.
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PW25/J(D366) for Rs. 5 lacs, stated that vide said voucher Rs. 5 lacs were debited from FDR A/c No. 4602, in the name of Rajesh Kaur and debit voucher Ex. PW25/J was passed by him and bears his signatures at point A. He after seeing the FDR Folio No. 4602 dated 23.03.1996 Ex. PW25/K(D365) in the name of Rajesh Kaur for a sum of Rs. 5 lacs, stated that it bears his signatures at point A and the amount was debited by him vide Debit Voucher Ex. PW 25/K. He after seeing the Debit Voucher dated 12.04.1996 Ex. PW25/L(D368) for Rs. 9 lacs, stated that Rs. 9 lacs were debited from FDR A/c No. 4601, in the name of Ramesh Chander and debit voucher Ex. PW25/L was passed by him and bears his signatures at point A. He after seeing the FDR Folio No. 4601 dated 22.03.1996 Ex. PW25/M(D367) in the name of Ramesh Chander for a sum of Rs. 9 lacs, stated that it bears his signatures at point A and the amount was debited by him vide Debit Voucher Ex. PW25/M. He after seeing the Debit Voucher dated 12.04.1996 Ex. PW25/N(D369) for Rs. 9 lacs, he stated that Rs. 9 lacs were RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 46 of 158 47 debited from FDR A/c No. 4600, in the name of Ramesh Chander and debit voucher Ex. PW25/N, was passed by him and bears his signatures at point A. He after seeing the FDR Folio No. 4600 dated 22.03.1996 Ex. PW25/O(D370) in the name of Ramesh Chander for a sum of Rs. 9 lacs, stated that it bears his signatures at point A and the amount was debited by him vide Debit Voucher Ex. PW25/O. He after seeing the Debit Voucher dated 12.04.1996 Ex. PW25/P(D372) for Rs. 7 lacs, stated that Rs. 7 lacs were debited from FDR A/c No. 4596, in the name of Ramesh Kumar and debit voucher Ex. PW25/P was passed by him and bears his signatures at point A. He after seeing the FDR Folio No. 4596 dated 21.03.1996 Ex. PW25/Q(D371) in the name of Ramesh Kumar for a sum of Rs. 7 lacs, stated that it bears his signatures at point A and the amount was debited by him vide Debit Voucher Ex. PW25/Q. After seeing the Debit Voucher dated 12.04.1996 Ex. PW 25/R(D374) for Rs. 5 lacs, stated that Rs. 5 lacs were debited RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 47 of 158 48 from FDR A/c No. 4595, in the name of Sunil Kumar and debit voucher Ex. PW25/R was passed by him and bears his signatures at point A. He after seeing the FDR Folio No. 4595 dated 21.03.1996 Ex. PW25/S(D373) in the name of Sunil Kumar for a sum of Rs. 5 lacs, stated that it bears his signatures at point A and the amount was debited by him vide Debit Voucher Ex. PW25/S. He after seeing the Debit Voucher dated 12.04.1996 Ex. PW25/T(D376) for Rs. 15 lacs, stated that Rs. 15 lacs were debited from FDR A/c No. 4590, in the name of Ramesh Kumar and debit voucher Ex. PW25/T was passed by him and bears his signatures at point A. He after seeing the FDR Folio No. 4590 dated 21.03.1996 Ex. PW25/U(D375) in the name of Ramesh Kumar for a sum of Rs. 15 lacs, stated that it bears his signatures at point A and the amount was debited by him vide Debit Voucher Ex. PW 25/U. He after seeing the Debit Voucher dated 12.04.1996 Ex. PW25/V(D378) for Rs. 10 lacs, stated that Rs. 10 lacs were debited from FDR A/c No. 4574, in the name of Jagdish Kumar RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 48 of 158 49 and debit voucher Ex. PW25/V, was passed by him and bears his signatures at point A. He after seeing the FDR Folio No. 4574 dated 16.03.1996 Ex. PW25/W(D377) in the name of Jagdish Kumar for a sum of Rs. 10 lacs, stated that it bears his signatures at point A and the amount was debited by him vide Debit Voucher Ex. PW25/W. He after seeing the Credit Voucher dated 12.04.1996 Ex. PW25/X (D379) totalling for a sum of Rs. 85 lacs stated that sum of Rs. 85 lacs was credited by him in the account of Kamal Kumar, Ramesh Chander, being Saving A/c No. 10742, as per the instructions of Mr. S.K. Arora, being the amount covered under FDRs/Debit Vouchers Ex. PW25/A to Ex. PW25/W. Ex. PW 25/X bears his signatures at point A and that of Mr. S.K. Arora at point B. The instructions in that regard are on the reverse side of Ex. PW25/W by Mr. S.K.Arora in his own handwriting in encircled portion X. He after seeing the Debit Voucher Ex. PW25/1 dated 13.04.1996 (D382) stated that a sum of Rs.41,55,0,26, was debited to the saving account no.10742 of Kamal Kumar, Ramesh Chander, which is in the handwriting of accused S.K. Arora, which RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 49 of 158 50 he identify. Ex. PW25/1 has also been signed by S.K. Arora at point A. He after seeing the Credit Voucher dated 15.04.1996 Ex. PW25/2 (D383) totalling for a sum of Rs. 10,59,295/ stated that sum of Rs. 10,59,295/ was credited in the demand loan account of R.K.Bajaj, by Mr. S.K. Arora, which is in his own handwriting. He identified signatures of S.K.Arora on Ex.PW25/2 at point A. He after seeing the Credit Voucher dated 13.04.1996 Ex. PW25/3 (D384) totalling for a sum of Rs. 9,27,645/ stated that a sum of Rs. 9,27,645/ was credited in the demand loan account of Madhu Bajaj, by Mr. S.K. Arora, which is in his own handwriting. He identified signatures of S.K.Arora on Ex.PW25/3 at point A. He after seeing the Credit Voucher dated 13.04.1996 Ex. PW25/4 (D385) totalling for a sum of Rs. 11,11,144/ stated that sum of Rs. 11,11,144/ was credited in the demand loan account of Rajender Kumar, by Mr. S.K. Arora, which is in his own handwriting. He identified signatures of S.K.Arora on Ex.PW25/2 at point A. He after seeing the Credit Voucher dated 13.04.1996 Ex. PW25/5 (D386) totalling for a sum of Rs. 10,56,942/ vide RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 50 of 158 51 which the sum of Rs. 10,56,942/ was credited in the demand loan account of Moti Lal Aggarwal, by Mr. S.K. Arora, which is in his own handwriting. He identified signatures of S.K.Arora on Ex.PW25/2 at point A. He after seeing the Credit Voucher dated 17.04.1996 Ex.PW25/6 (D545) for a sum of Rs.28,44,974/ credited to the account of Kamal Kumar Ramesh Chander, passed by S.K.Arora. He identified signatures of S.K.Arora on Ex.PW25/6 at point A. He has further deposed after seeing the transfer payment order (TPO) dated 17.04.96 (D546) already Ex.PW9/S that an amount of Rs.28,44,974/ was transferred to the Mahipal Pur Branch of OBC which was credited into the account of Kamal Kumar Ramesh Chander. He further deposed after seeing the Transfer Debit Voucher dated 13.04.1996 already Ex. PW25/1(D
382), for Rs. 41,55,0,26/ were transferred, to Demand Loan A/c of R.K. Bajaj, Rs.10,59,295/ dated 13.04.1996, vide Ex. PW25/2(D
383), Rs.9,27,645/ to Demand Loan A/c of Madhu Bajaj on 13.04.96 vide Ex. PW25/3(D384), Rs.11,11,144/ dated 13.04.1996 to Demand Loan A/c of Rajender Kaur vide Ex. PW 25/4(D385), Rs10,56,942/ dated 13.04.1996 to Demand Loan A/c of Moti Lal Aggarwal vide Ex. PW25/5(D386).
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He after seeing the Ledger Sheet Ex. PW25/A(D356), stated that a single entry of Rs.10,59,295/ corresponding to entry in Ex. PW25/1(D382), has been shown, as having been transferred to the current A/c.
He after seeing the Seizure Memo dated 13.05.1999 Ex. PW25/7, stated that vide this memo he had handed over the documents mentioned therein, to CBI, and Ex. PW25/7 bears his signatures at point A. He after seeing the Seizure Memo dated 14.05.1999 Ex. PW25/8, stated that vide this memo he had handed over the documents mentioned therein, to CBI, and Ex. PW25/8 bears his signatures at point A. He has proved the Seizure Memo dated 22.07.1999 Ex. PW25/9, vide which he handed over the documents mentioned therein, to CBI, and Ex. PW25/9 bears his signatures at point A on page no.1 and at points A and B on page no.2. He has also proved an FDR Ex.PW25/10 (D252).
PW26 is Sh.Updesh Sharma, who was working in the Basant Lok branch, OBC as an officer. He stated that he knew S.K.Arora and had worked under him and was acquainted with his handwriting RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 52 of 158 53 and signatures. He after seeing the account opening form no.936D32/2 in the name of Oxford Travels India Pvt.Ltd. stated that the same was having his signatures which is Ex.PW26/1. He has also proved the other documents pertaining to the said account as Ex.PW26/2 to Ex.PW26/12. He after seeing the specimen signature card (D544) pertaining to saving account no.12367 in the name of Kamal Kumar Ramesh Chander, identified the signatures of S.K.Arora at Q60A, vide which he authenticated the specimen signatures of Kamal Kumar and of Ramesh Chander on the said document for opening the account. The specimen signature card (D544) has been proved as Ex.PW26/13, he had also been shown transfer payment order dated 17.04.96 (D546) already Ex.PW9/S, whereupon he identified the signatures of then Manager Sh.Vinay Sagar Gupta. On being shown cheque no.117051 for amount of Rs.15 Lacs favouring self (D547) Ex.PW26/14, he identified the signature of S.K.Arora in the encircled portion Q63, which was passed by him.
On being shown debit voucher dated 25.5.96 (D548) Ex.PW26/15 for an amount of Rs.10 Lacs, vide which Rs.10 Lacs were debited in account no.12367 maintained in the name of Kamal Kumar Ramesh Chander, the witness states that it bears RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 53 of 158 54 handwriting and signature of S.K.Arora at point A except account no.12367 and writing Ramesh Chander in red ink encircled in blue ink C. On being shown credit voucher dated 25.5.96 (D549) Ex.PW26/16 for Rs.10 Lacs vide which pay order favouring Kamal Kumar was issued, the witness states that it bears signature of S.K.Arora at point A. On being shown cheque no.117052 for amount of Rs.8 Lacs favouring self (D551) Ex.PW26/17, he identified the signature of S.K.Arora in the encircled portion as Q60, which was prepared in his handwriting vide which cash payment was made against the said cheque to the drawer of the cheque of account no.12367.
On being shown cheque no.117056 for amount of Rs.5 Lacs favouring self (D554) Ex.PW26/18, he identified the initials of Rajiv Luthra (since dead) at point A and also identified the handwriting of S.K.Arora at point Q67 in quote written as 'Kamal Kumar Ramesh Chander', which was passed by Rajiv Luthra. He also identified the endorsement in the handwriting of Rajiv Luthra on the reverse of cheque to the effect 'please debit in S/B 12367 RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 54 of 158 55 instead of S/B 12366' at point B. On being shown cheque no.117057 dated 06.05.96 for amount of Rs.9 Lacs favouring self (D555) Ex.PW26/19, he identified the initials of Rajiv Luthra (since dead) at point A and also identified the handwriting of S.K.Arora at point Q68 in quote written as 'Kamal Kumar Ramesh Chander', which was passed by Rajiv Luthra. He also identified the endorsement in the handwriting of Rajiv Luthra on the reverse of cheque to the effect 'please debit in S/B 12367 instead of S/B 12366' at point B. On being shown cheque no.117058 dated 06.05.96 for amount of Rs.9 Lacs favouring self (D556) Ex.PW26/20, he identified the initials of Rajiv Luthra (since dead) at point A and also identified the handwriting of S.K.Arora at point Q68 in quote written as 'Kamal Kumar Ramesh Chander', which was passed by Rajiv Luthra. He also identified the endorsement in the handwriting of Rajiv Luthra on the reverse of cheque to the effect 'please debit in S/B 12367 instead of S/B 12366' at point B. On being shown cheque no.117059 dated 24.05.96 for amount of Rs.5 Lacs favouring self (D557) Ex.PW26/21, he identified the initials of Rajiv Luthra (since dead) at point A, which RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 55 of 158 56 was passed by Rajiv Luthra and payment was made to the drawer of the cheque.
On being shown cheque no.117060 dated 05.06.96 for amount of Rs.5 Lacs favouring self (D558) Ex.PW26/22, the said cheque was prepared and passed by S.K.Arora for which S.K.Arora signed at Q71, which he identified. The cash payment was made to a person whose signature was appearing on the reverse of the cheque.
On being shown FDR vide folio no.4599 dated 08.08.96 (D500) Ex.PW26/23 in the name of R.C.Jain for a sum of Rs.2,50,000/, the said FDR bears his signature at point A. The FDR bears endorsement of bank lien against demand loan 970.
On being shown FDR 272731 dated 02.09.96 having folio no.7205 (D515) Ex.PW26/24 in the name of Rajiv Kumar for a sum of Rs.1,90,000/, the said FDR was prepared and signed by him. His signatures appear at point A. Signatures of S.K.Arora appear at point B. The FDR bears endorsement of lifting bank lien against O/D 1579 and bears the signature of Subhash Aghi at point C. On being shown FDR 272733 dated 02.09.96 having RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 56 of 158 57 folio no.7207 (D518) Ex.PW26/25 in the name of Rajiv Kumar for a sum of Rs.1,90,000/, the witness states that the said FDR was prepared and signed by him. His signatures appear at point A. Signature of S.K.Arora appears at point B. The FDR bears endorsement of lifting bank lien against O/D 1579 and bears the signature of Subhash Aghi at point C. On being shown FDR 272737 dated 02.09.96 having folio no.7211 (D521) Ex.PW26/26 in the name of Rajiv Kumar for a sum of Rs.1,84,449/, the witness states that the said FDR was prepared and signed by him. His signatures appear at point A. Signatures of S.K.Arora appears at point B. The FDR bears endorsement of lifting bank lien against O/D 1579 and bears the signature of Subhash Aghi at point C. On being shown Debit Transfer Voucher dated 18.11.96 (D632) for the amount of Rs. 20,000/ Ex.PW26/27, the witness identified the handwriting and signature of S.K.Arora on Ex.PW26/27 and it bears his signature at point A, except account no.1549 in blue ink, vide which S.K.Arora allowed the debit voucher to debit into account no.1549.
On being shown Credit Transfer Voucher dated 18.11.96(D633) for the amount of Rs. 20,000/ Ex.PW26/28, the RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 57 of 158 58 witness identified the handwriting and signature of S.K.Arora on Ex.PW26/28. It bears his signature at point A, except account no.DL867 in red ink, vide which S.K.Arora allowed the credit voucher to credit into account no.DL867 (in the name of Madhu Bajaj).
On being shown Cash Credit slip dated 26.11.96 (D
624) Ex.PW26/29 for the amount of Rs.50,000/, the witness identified the handwriting of S.K.Arora on Ex.PW26/29 except account no.DL867.
On being shown Cash Credit slip dated 27.11.96 (D
625) Ex.PW26/30 for the amount of Rs.50,000/, the witness identified the handwriting of S.K.Arora on Ex.PW26/30 except account no.DL867.
On being shown Cash Credit slip dated 13.12.96 (D
626) Ex.PW26/31 for the amount of Rs.3000/, the witness identified the handwriting of S.K.Arora on Ex.PW26/31 except account no.DL867.
On being shown Cash Credit slip dated 14.12.96 (D
627) Ex.PW26/32 for the amount of Rs.25,000/, the witness identified the handwriting of S.K.Arora on Ex.PW26/32 except RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 58 of 158 59 account no.DL867.
On being shown Debit Transfer Voucher dated 23.12.96 (D628) for the amount of Rs. 20,000/ Ex.PW26/33, the witness identified the handwriting and signature of S.K.Arora on Ex.PW26/33 and it bears his signature at point A, vide which S.K.Arora allowed the debit voucher to debit in current account of House of Travels.
On being shown Credit Transfer Voucher dated 23.12.96(D629) for the amount of Rs. 20,000/ Ex.PW26/34, the witness identified the handwriting and signature of S.K.Arora on Ex.PW26/34. It bears his signature at point A, except account no.DL867 in red ink, vide which S.K.Arora allowed the credit voucher to credit into account no.DL867 (in the name of Madhu Bajaj).
On being shown Debit Transfer Voucher dated 03.12.96 (D630) for the amount of Rs. 11,000/ Ex.PW26/35, I identify the handwriting and signature of Rajiv Luthra (since dead) on Ex.PW26/35 and it bears his signature at point A, vide which Rajiv Luthra allowed the debit voucher to debit in current account of House of Travels. (objected to the mode of proof as the witness is neither author of the said document nor he produced the said RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 59 of 158 60 document).
On being shown Credit Transfer Voucher dated 03.12.96(D631) for the amount of Rs. 11,000/ Ex.PW26/36, the witness identified the handwriting and signature of Rajiv Luthra on Ex.PW26/36. It bears his signature at point A, except account no.DL867 in red ink, vide which Rajiv Luthra allowed the credit voucher to credit into account no.DL867 (in the name of Madhu Bajaj).
On being shown cheque no.352310 dated 04.05.96(D
428) Ex.PW26/37 for an amount of Rs.50,400/ favouring self, which was allowed by S.K.Arora whose signatures are at point A and thereafter, necessary entry was made by Rajiv Luthra, whose signature is at point B. On being shown cheque no.352315 dated 09.05.96(D
436) Ex.PW26/38 for an amount of Rs.25,025/ favouring yourself, which was allowed by Rajiv Luthra (since dead) whose signature is at point A and his signature is at point B for necessary action.
On being shown Debit Transfer Voucher dated 24.04.96 (D538) for the amount of Rs. 19,86,940/ Ex.PW26/39, the witness identified the handwriting and signature of S.K.Arora RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 60 of 158 61 on Ex.PW26/39 and it bears his signature at point A, vide which S.K.Arora allowed the debit voucher to debit into account no. DL 867 (account of Ms. Madhu Bajaj). The account no.DL867 in red ink is in the handwriting of some other person on Ex.PW26/39.
On being shown Credit Transfer Voucher (D539) for amount of Rs. 19,86,940/ Ex.PW26/40, the witness identified the handwriting and signature of S.K.Arora on Ex.PW26/40. It bears his signature at point A, vide which S.K.Arora allowed the credit voucher to credit into account of Kamal Kumar.
PW26 further deposed that Long book is a book containing all the daily transactions of the bank including the entries of FDR and CDR. Daily transactions are recorded in the Long book on day to day basis.
Folio no. of the FDR denotes the ledger sheet number. There can be one folio number for two FDRs.
On being shown page no.1 to 8 of D648 already marked as S77 to S84, the witness identified his signature and handwriting in encircled portion A on each sheet and the same are exhibited as Ex.PW26/41 (colly.). The specimen signatures were taken in my presence, which were encircled in blue pencil on each RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 61 of 158 62 page. He has proved the seizure memo dated 23.04.99 Ex.PW26/42 (D600/1 and 600/2, running into two pages), vide which he handed over certain documents to CBI which bears his signature at point A on page no.1 and at points A and A1 on page no.2.
He after seeing the seizure memo dated 22.04.99 Ex.PW26/43 (D601/1 and 601/2, running into two pages), stated that vide the seizure memo, he handed over certain documents to CBI which bears his signature at point A on page no.1 and at points A and A1 on page no.2.
After seeing the seizure memo dated 26.04.99 Ex.PW26/44 (D602/1, 602/2 and 602/3, running into three pages), the witness stated that vide the said seizure memo, he had handed over certain documents to CBI which bears his signature at point A on page no.1 and 2 and at points A and A1 on page no.3.
After seeing the seizure memo dated 04.08.2000 Ex.PW26/45 (D640), the witness stated that vide the said seizure memo, he had handed over certain documents to CBI which bears his signature at points A and A1.
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60. PW27 is Sh.S.B.Mathur, who had stated that he was working as Officer in OBC at the relevant time. On being shown pages no.20 to 34 of D645, the witness identified his signatures and handwriting in encircled portion at A on each page, same have been collectively exhibited as Ex.PW27/A and the witness also on being shown pages no.1 to 8 of D649, identified his handwriting and signatures in encircled portion A and said pages are collectively Ex.PW27/B.
61. PW28 is Sh.J.K.Saxena, he is also witness of specimen handwriting. He has proved the specimen signatures Marked as S45 to S67, which are collectively Ex.PW28/A, vide which specimen signatures of M.Bajaj were taken.
62. PW29 is Sh.Sandeep Chatterjee, who was posted as Manager in SBI, Saurashtra at Lodhi Road Branch. He stated that he was called by the IO of this case and he had taken the specimen signatures in his presence on documents D645/8 (S8) to D645/19 (S19), the said sheets are collectively Ex.PW29/A.
63. PW30 is Sh.D.P.Dhingra, who is the witness of similar nature. He was working as Sr.Manager, OBC, GK PartII branch. He was called by the IO and the specimen signatures of S.K.Arora(one of the accused, since deceased ) were taken in his RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 63 of 158 64 presence. The relevant sheets are Ex.PW30/A.
64. PW31 is Sh.V.K.Gupta, he has deposed that at the relevant time he was posted at Head Office, OBC, Cannaught Place, at that time he was Incharge of Personnel Department. CBI had called for different circulars of Personnel department with regard to category and posting of branches as well as discretionary powers of Branch Heads which he handed over to them. He stated that he had handed over the personal file of S.K.Arora (D615) Ex.PW31/A and other documents pertaining to his promotion and postings Ex.PW3/E to Ex.PW3/G. He has deposed regarding six circulars issued by OBC from time to time.
65. PW32 is Sh.Pradeep Kumar, Astt.Genl.Manager. He stated that he could not trace the circular No.PER/51/33/94/32 dated 21.05.94. However, he had brought the photocopies of five other circulars which were collectively exhibited as Ex.PW32/A.
66. PW33 is Sh.Vinay Sagar Gupta, who was posted in the Basant Lok Branch, OBC from the year 1995. He stated that he was Hall Incharge, but he was deputed for balancing of books, as Hall Incharge his duties were to oversee the working of the branch on daily basis, when he joined the said branch S.K.Arora was the Branch Manager of the said branch. He has proved the specimen RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 64 of 158 65 signatures of M.Bajaj Ex.PW33/A and that of Rupak Bajaj Ex.PW33/B. He after seeing the specimen handwriting and signatures of Ashok Mehra marked as S85 to S91 stated that the same bears his signatures on each sheet at point A, the same are collectively Ex.PW33/C and the specimen signatures of Ashok Mehra were taken in his presence. He has also proved the specimen signatures of one Kuldeep Tanwar Ex.PW33/D. He has also proved certain credit/transfer vouchers/pay in slip which are Ex.PW33/E to Ex.PW33/O.
67. PW34 is Sh.S.Kalyanaraman. He has deposed that he was posted in Canara Bank, Mayur Vihar Branch, PhaseII. He has proved certain seizure memos Ex.PW34/A to Ex.PW33/E bearing his signatures vide which he handed over certain documents to the IO.
68. PW35 is Sh.D.K.Khanna. He has deposed that he was working as an officer in Canara Bank, Mayur Vihar PhaseII Branch. He has proved the account opening form in the name of Krishna Arora and Komal Arora and account opening form in the same branch in the name of Gaurav Arora, same are Ex.PW35/A to Ex.PW35/D.
69. PW36 is Smt.Madhu Bajaj, PW37 is Smt.Komal Arora, RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 65 of 158 66 wife of one of the accused S.K.Arora (deceased), PW38 is Sh.Gaurav Arora, son of accused S.K.Arora (deceased).
70. PW39 is Sh.N.Kannan, he was working in the Canara Bank, Mayur Vihar PhaseII Branch. He has deposed regarding the account opening form of Krishna Arora which are already proved as Ex.PW35/A to Ex.PW35/C.
71. PW40 is Sh.Mohinder Singh, the GEQD Expert, who had compared and examined the questioned documents with the specimen handwritings and signatures and had given reports alongwith detailed reasons of his opinion as Ex.PW40/C1 and Ex.PW40/C2 and Ex.PW40/C4 and Ex.PW40/C5. Both the opinions alongwith reasons and documents were returned to CBI vide GEQD Shimla letter dated 10.04.2000 and 30.08.2000 Ex.PW40/C3 and Ex.PW40/C6.
72. PW41 is Sh.Kuldeep Singh Tanwar, partner of one of the accused Ashok Mehra (A2).
73. PW42 is IO of this case Sh.Satish Dandriyal. He has deposed regarding the investigations carried out by him in this case.
74. PW43 is Sh.P.K.Malhan. He has deposed regarding RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 66 of 158 67 the irregularities being detected at the Mahipal Pur Branch of OBC in 1997 for which he was deputed for inspection.
75. PW44 is Sh.Ravikesh Sharma, who was the driver of Rupak Bajaj. He has identified the signatures of Rupak Bajaj on different documents in his deposition.
76. Thereafter, separate statement of accused Ashok Mehra (A2) was recorded u/S 313 Cr.P.C in which the entire incriminating evidence appearing against him was put to him including the specimen signatures/writings as well as the opinion of the handwriting expert PW40 in which he has stated that the present chargesheet is false and he was innocent, he had been falsely implicated in this case due to some ulterior motives by the bank officials. Similarly, in the statement of accused u/S 313 Cr.P.C of (A3) Padam Kumar Sharma, the entire incriminating evidence appearing against him was put to him, which he also denied including that of handwriting expert PW40 and his specimen signatures. He also submitted that he had been falsely implicated in this case by the bank officials due to certain ulterior motives. Both of them in their statements had stated that they wanted to lead defence evidence, but vide separate statements of RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 67 of 158 68 Ld.counsel for accused persons dated 13.05.16, no defence evidence was lead.
77. I have heard Sh.Naveen K.Giri, Ld.PP for CBI and Sh.P.S.Singhal, Ld. Counsel for (A2) Ashok Mehra and (A3) Padam Kumar and perused the record.
78. Ld. Counsel for the accused persons A2 and A3 has relied upon following judgment(s) in support of his contention: (1) AIR 67 SC 1326 (2) AIR 73 SC 2200 (3) Sapan Haldar & Anr Vs State 2012 VIII AD (Delhi) 533 (4) Mukesh Kumar Vs State, Crl.Appeal No.777/2001 and Ram Ashish Vs State, Crl.Appeal No.980/2001 (5) Zafar Umar Khan @ Jafar Umar Vs State (Govt. of NCT) 2013 (1) JCC 765 (6) Bharat Aneja Vs State of NCT of Delhi, 219 (2015) DLT 131 RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 68 of 158 69 (7) Sandeep Dixit Vs State, 190 (2012) DLT 600 (8) Ramesh Chandra Agrawal Vs Regency Hospital Ltd.
& Ors. JT 2009 (12) SC 377 (9) Tomaso Bruno Vs State of UP, 2015 (2) JCC 884 (SC) (10) Prakash Chand Vs State, Crl.A. 342/1999, decided by Delhi High Court on 18.03.2014.
79. On the other hand, Ld. PP for the CBI has relied upon following judgment(s) in support of his contention(s): (1) Rabindra Kumar Pal @ Dara Singh Vs Republic of India JT (2011) 1 SC 350: (2011) 1 Scale 615: (2011) 100 AIC 231 (SC) (2) Raksha Jindal Vs Central Bureau of Investigation Crl.A.124/2013 decided by Hon'ble High Court on 05.03.2015.
80. The Ld.counsel for A2 and A3 has argued that RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 69 of 158 70 admittedly as per the prosecution case, the account no.10742 was opened on 12.04.96 at Basant Lok Branch by accused S.K.Arora (since deceased, proceedings abated) in the name of Kamal Kumar Ramesh Chander by transferring an amount of Rs.85 Lakhs from certain benami FDRs. It is further the case of prosecution that none of the accused persons were connected with the same or with the operation of the same. The only role alleged by the prosecution against the present accused persons is that A3 opened account no.12367 in the fictitious name of Kamal Kumar Ramesh Chander with Mahipal Pur Branch and against accused Ashok Mehra (A2) that cheques ; Ex.PW26/14, Ex.PW26/17, Ex.PW13/C and Ex.PW26/21 were signed by him in the name of Kamal Kumar and an amount of Rs.22 Lakhs was withdrawn from the said account no.12367 and that cheque book register was also signed by him in the name of Kamal Kumar. He has further argued that out of the 44 witnesses examined by the prosecution, only 6 are relevant for the transaction in which the present accused persons are concerned or connected as per the prosecution story i.e. PW13 Sh.Sanjeev Sahani, PW26 Sh.Updesh Sharma, PW33 Sh.Vinay Sagar Gupta, PW27 Sh.S.B.Mathur, PW42 Sh.Satish Dandriyal (IO) and PW40 RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 70 of 158 71 Sh.Mohinder Singh (handwriting expert). He has argued that the testimony of all these witnesses is highly unreliable and cannot be relied upon. He has further argued that the samples / specimen writings of the accused persons could not have been taken in view of the settled law. For this, he has relied upon Sapan Haldhar (supra), Zafar Uman Khan (supra), Bharat Aneja (supra), Mukesh Kumar (supra) and Sukh Ram (supra). He has argued that the very taking of specimen writing/signatures by the IO during the investigation is per se illegal in view of the aforesaid judgments and Section 311(A) Cr.P.C was only incorporated in the year 2005 and even under the said Section, only the Magistrate of First Class has the power to direct the IO to take the specimen signatures or handwriting and not otherwise.
81. He has further argued that even otherwise the samples taken on the record by the prosecution does not belong to the accused persons, as the prosecution witnesses in this regard i.e. PW26, PW27, PW33 and PW42 are highly unreliable, as they had only stated that the specimen sheets contain their signatures without identifying the accused persons as the persons to whom the said specimen signatures belonged. Therefore, he has argued RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 71 of 158 72 that identity of those persons to whom the said specimen signatures belonged has not been established, nor the prosecution has proved when and where the said specimen signatures were taken. He has lastly assailed the testimony of PW40 handwriting expert on the ground that the reasoning given by him is most unsatisfactory and evasive in nature and in any case, on reading of his testimony as a whole it appears that he is not a reliable witness. He has further argued that in any case it is settled law that the science of handwriting comparison is not an exact science as in the case of fingerprint comparison and the expert's evidence as to the handwriting is only an opinion evidence and it cannot take the place of substantive evidence, and therefore it is not safe to convict solely on the said opinion evidence without any corroboration for which he has relied upon AIR 1973 SC 2200 and AIR 1967 SC 1326. Lastly, he has argued that even otherwise there is nothing on record to connect the present accused with the accused S.K.Arora, who had died with regard to any conspiracy evidence. Therefore he has argued that both the accused persons are liable to be acquitted.
82. On the other hand, Ld.PP for CBI has strongly refuted RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 72 of 158 73 the above arguments and has argued that all the material prosecution witnesses are reliable in nature, which is evident from reading of their testimonies as a whole. He has further argued that the specimen signatures of the accused had been validly taken by the IO in view of the judgment of Rabindra Kumar Pal @ Dara Singh (Supra) as well as the judgment of Raksha Jindal Vs CBI (supra), Hon'ble Supreme Court in the judgment of Rabindra Kumar Pal @ Dara Singh (supra) has also relied upon its previous judgment Kathi Kalu Oghad AIR 1961 SC 1808. He has argued that the specimen signatures had been validly taken by the IO and the contrary arguments of the Ld. Defence counsel are not tenable.
83. He has further argued that it has been clearly established from the testimonies of relevant witnesses including the IO PW42 that the specimen signatures belonged to A2 and A3 and their identity had been clearly established in this regard. He has further argued that from the testimony of PW40 handwriting expert, it has been established that the questioned signatures on the relevant documents were belonging to A2 and A3 and the said witness was an independent witness from CFSL, Shimla, whose opinion had also been corroborated by another RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 73 of 158 74 expert, as both of them had given a joint report and despite cross examination nothing has come out in his cross examination to shake his credibility. He has further argued that in view of the judgment of Hon'ble Apex Court in Murari Lal s/o Ram Singh Vs State of Madhya Pradesh AIR 1980 SC 531, as also State of Maharashtra Vs Sukhdev Singh @ Sukha AIR 1992 SC 2100, the accused persons can be convicted on the opinion of the handwriting expert, if the same is reliable and no corroboration is required in this regard. He has also argued that the conspiracy between the accused persons and the main accused S.K.Arora (since deceased) is apparent from the testimony of prosecution witnesses examined on record which shows that this entire transactions were fake in nature, which were in the nature of money laundering exercise taken to rotate the money in a manner so as to paint a picture that they were normal banking transactions. Therefore, he has argued that both the accused persons i.e. A2 and A3 are liable to be convicted.
84. I have gone through the rival contentions. As per the allegations in the chargesheet, wherein it was alleged that during the period 1991 to 1996 S.K.Arora, while functioning as Branch Manager, OBC Basant Lok branch and Mahipal Pur Branch RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 74 of 158 75 entered into criminal conspiracy with Mrs.M.Bajaj, Proprietor of M/s House of Travels and her husband Rupak Bajaj of Oxford Travels Pvt. Ltd. to cheat Oriental Bank of Commerce (OBC). It is the admitted case of the prosecution that the present accused persons who are facing trial are not in any way connected with the transactions which took place at Basant Lok Branch done by S.K.Arora (A1) in criminal conspiracy with M.Bajaj and Rupak Bajaj. Since S.K.Arora is now dead, proceedings against him have abated and Rupak Bajaj had already died at the time of filing of chargesheet and another accused Madhu Bajaj was shown in column no.2 and was never summoned and in fact she was examined as PW36, therefore no purpose would be served now to discuss the transactions pertaining to said period of Basant Lok Branch of OBC.
85. However, for better understanding of the transaction in nature, it would be relevant to go a little bit into the history of account SB10742, which was opened in the Basant Lok branch in the name of Kamal Kumar Ramesh Chander which was opened on 12.04.1996 with an amount of Rs.85 Lakhs. The following illustrated diagram would be necessary to explain the transactions in a better way.
RC NO.4(E)/1998
CBI Vs S.K.Arora & Ors. 75 of 158
76
D/L 104 (C)
TRANSACTION CHART/ FUNDS FLOW CHART
Rupak Bajaj
& Madhu
Bajaj
Basant Lok
adjusted Rs.
Basant Lok (B)
ted 1059295/-
(A) 295 adjus
1059
11 FDR's amounting to Rs. 6 Rs.
SBAK 10742 Kamal On 13.04.1 D/L 105
8.85 lacs all prepared by
Kumar Ramesh Madhu Bajaj
way of cash deposit (D)
Chand Amount Rs. On 13.04.16 Rs.927645/- adjusted & Rupak Bajaj except 2 FDRs of Rs. 5 85 lacs O/s as on lacs each amounting to 111 O Rs. 10 lacs made by from 11 n 13.04.96 Rs.
44 13
vide sh Chand
Ram
D/L ad .04 927645/-
jus .16
ted
TP O
e Rs
on . 4
13 155
No. 1 .04 02
On 1 8/96 on 1
Rs
.96 6/
Rs
(E)
.10
7.04. . D/L Rajinder
7
36
Kumar or
94
96 R 7.04.96 -
2/-
opened23.08.95
a
s. 4 3
dju
for Rs. 1025000
ste
4497 -kamal K
O/s as on
d
on
13.04.96 Rs.
4 trf.
13
.04
1111144/-
Rs. 2 mar
.96
Mahipal Pur
(J)
u
8449
D/L Moti Lal
74
Self Cheques dated
Mahipal Pur
Aggarwal dt. (F)
17.04.96m 24.04.98, Opened
04.05.96, 24.04.96 for Rs.
(H)
SB A/c 12367 23.08.95 for
15 lacs, 8 lacs, 4 lacs and Rs. 32 lacs withdrawn by self cheque
Kamal Kumar Rs. 975000/-
5 lacs totalling 32 lacs Ramesh Chand O/s as on
allegedly withdrawn by A-2 opened on 13.04.96 Rs.
while singing Kamal Kumar 17/4/96 amount 1056942/-
Rs 2844974/- Rs. 15 lacs D/L of Kamal Kumar
(G)
from PRQ 178/96 Ramesh Chand
(K) (L)
Mahipal Pur
D/L867 M. Bajaj dtd
24.04.96 for Rs. D/L 877 Rajender
1986940/-(total of DL Aggarwal dtd 06.05.96 for
104 & Dl 105 of Basant Rs. 268000(total of DL
Lok adjusted on 13.04.96) Rajinder Kumar & D/L Moti
Loan document dated Lal Aggarwal of Basant Lok
24.04.96 against fake FDR adjusted on 13.04.96
276/95
Still outstanding as on 31.03.95 Rs. 19.82 Adjusted on 31.03.97 from proceeds of
lacs CORS of Rajinder Aggarwal, Subhash
Aggarwal of Rs. 16 lacs issued form D/L of RC NO.4(E)/1998 Motiram of RCS/98 CBI Vs S.K.Arora & Ors. 76 of 158 77
86. Starting with the BoxA of the above diagram, an FDR of Rs.5 Lakhs was prepared on 27.03.96 in the name of Ramesh Chander which is Ex.PW25/C (D357), similarly an FDR of Rs.7.5 Lakhs Ex.PW25/E dated 23.03.96 (D359) was prepared in the name of Jagdish Kaur, similarly another FDR of Rs.7.5 Lakhs Ex.PW25/G dated 23.03.96 (D361) was prepared in the name of Jagdish Kaur, similarly another FDR of Rs.5 Lakhs Ex.PW25/I dated 23.03.96 (D364) was prepared in the name of Rajesh Kaur, similarly another FDR of Rs.5 Lakhs Ex.PW25/K dated 23.03.96 (D365) was prepared in the name of Rajesh Kaur, similarly another FDR of Rs.9 Lakhs Ex.PW25/M dated 22.03.96 (D367) was prepared in the name of Ramesh Chander, similarly another FDR of Rs.9 Lakhs Ex.PW25/O dated 22.03.96 (D370) was prepared in the name of Ramesh Chander, similarly another FDR of Rs.7 Lakhs Ex.PW25/Q dated 21.03.96 (D371) was prepared in the name of Ramesh Kumar, similarly another FDR of Rs.5 Lakhs Ex.PW25/S dated 21.03.96 (D373) was prepared in the name of Sunil Kumar, similarly another FDR of Rs.15 Lakhs Ex.PW25/U dated 21.03.96 (D375) was prepared in the name of Ramesh Kumar, similarly another FDR of Rs.10 Lakhs Ex.PW25/W dated 16.03.96 (D377) was prepared in the name of RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 77 of 158 78 Jagdish Kumar. The total aggregate amount of the above FDRs comes to Rs.85 Lakhs.
87. Vide transfer voucher Ex.PW25/X on 12.04.96 the said amount of Rs.85 lakhs was transferred into the account no.10742 in the name of Kamal Kumar Ramesh Chander, whereby the money was channeled into the BoxB. As per the testimony of PW25 Sh.Azad Singh, all the said FDRs had been prepared by him bearing his signatures and the credit voucher Ex.PW25/X dated 12.04.96 totalling for a sum of Rs.85 Lakhs was credited by him in the account of Kamal Kumar Ramesh Chander, being saving account no.10742 as per the instructions of S.K.Arora, being the amount covered under the FDRs / Debit Vouchers Ex.PW25/A to Ex.PW25/W and the Ex.PW25/X bears his signatures at point A and that of S.K.Arora at point B and instructions in this regard were on the reverse side of Ex.PW25/W by S.K.Arora in his own handwriting. Nothing has come out in the cross examination of PW25 which could show that the testimony of PW25 was not reliable. In any case, his oral testimony is backed by the above vouchers / FDRs. Therefore, there is corroboration to his oral testimony in this regard.
RC NO.4(E)/1998
CBI Vs S.K.Arora & Ors. 78 of 158
79
88. Now coming to BoxB, after the transfer of Rs.85 Lakhs from BoxA into the account of Kamal Kumar Ramesh Chander which was opened on 12.04.96 with amount of Rs.85 Lakhs, the same was channelized into Boxes C,D,E and F as illustrated in the DiagramTransaction Chart/Funds flow chart.
89. Now adverting to BoxC, an amount of Rs.10,59,295/ was transferred vide credit voucher Ex.PW25/2 dated 13.04.96 (D
383). PW25 has deposed that vide transfer debit voucher dated 13.04.96 an amount of Rs.10,59,295/ was transferred to the demand loan account of R.K.Bajaj by S.K.Arora (A1). He has also identified the handwriting of S.K.Arora at point A.
90. Now adverting to BoxD, vide credit voucher (D384) dated 13.04.96 Ex.PW25/3 an amount of Rs.9,27,645/ was credited in the demand loan account of Madhu Bajaj by S.K.Arora. PW25 has also identified the handwriting of S.K.Arora on the said credit voucher.
91. Now adverting to BoxE, Vide credit voucher (D385) RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 79 of 158 80 dated 13.04.96 Ex.PW25/4 an amount of Rs.11,11,144/ was credited into the demand loan account of Rajender Kumar by S.K.Arora. PW25 has also identified the handwriting of S.K.Arora at point A on the said credit voucher.
92. Now adverting to BoxF, Vide credit voucher (D386) dated 13.04.96 Ex.PW25/5 an amount of Rs.10,56,942/ was credited into the demand loan account of Moti Lal Aggarwal by S.K.Arora. PW25 has also identified the handwriting of S.K.Arora at point A on the said credit voucher.
93. Regarding the BoxG, though vide credit voucher (D
387) an amount of Rs.15 Lakhs was credited into the demand loan account of Kamal Kumar Ramesh Chander from SB Account No.10742, but the said document has not been proved. But from the statement of account of said Basant Lok Branch Ex.PW25/A (D356), the entire consolidated amount of Rs.41,55,026/ pertaining to the boxes C,D,E and F has been shown in consolidated manner, whereas the remaining amount of Rs.43,44,974/ has been shown to be transferred to Mahipal Pur branch vide Ex.PW13/J. The signatures of Sh.Vinay Sagar Gupta RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 80 of 158 81 on the said voucher was identified by PW13 Sh.Sanjiv Sahani, but it appears that out of that Rs.15 Lakhs was transferred into the demand loan account of Kamal Kumar Ramesh Chander as shown in BoxG and actual amount transferred was Rs.28,44,974/ vide transfer voucher Ex.PW13/H, which has also been proved by PW13 as bearing the signatures of Sh.Vinay Sagar Gupta, vide which the said amount was transferred to the account of Kamal Kumar Ramesh Chander, Mahipal Pur branch and the account of Kamal Kumar Ramesh Chander at Basant Lok branch was closed on the same day.
94. Regarding the BoxH, as per prosecution story the role of the present accused persons starts from this box. As it is alleged by the prosecution that the accused Padam Kumar(A3) had opened the fake account bearing SB No.12367 in the fictitious name of Kamal Kumar Ramesh Chander, which was opened on 17.04.96. In this regard, PW26 has proved one applicationcum specimen card Ex.PW26/13 (D544) by virtue of which the said account in the name of Kamal Kumar Ramesh Chander was opened at Mahipal Pur Branch. The said witness has also identified the signatures of S.K.Arora (since deceased) at Q60A, RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 81 of 158 82 who had authenticated the signatures of Kamal Kumar and Ramesh Chander. He has also proved the transfer payment order dated 17.04.96 (D546) already Ex.PW9/S, wherein he has identified the signatures of Sh.Vinay Sagar Gupta with whom he had worked, by virtue of which an amount of Rs.28,44,974/ was transferred to the above account Kamal Kumar Ramesh Chander which was opened on 17.04.96 at Mahipal Pur Branch of OBC. Similarly, PW25 has also proved the credit voucher dated 17.04.96 Ex.PW25/6 (D545) for a sum of Rs.28,44,974/ credited into the account of Kamal Kumar Ramesh Chander, passed by accused S.K.Arora, whose signatures he has identified on the same at point A. The same witness has also proved Ex.PW9/S, vide which the amount of Rs.28,44,974/ was transferred to Mahipal Pur Branch of OBC which was credited into the saving account of Kamal Kumar Ramesh Chander.
95. It is further the case of prosecution that a cheque book was also issued for the said account, which was received by (A2) Ashok Mehra while signing at point Q322. In this regard prosecution has examined PW13 Sh.Sanjiv Sahani, who has stated that he had seen the pages no.191 to 200 of cheque book RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 82 of 158 83 issue register which are loose sheets for the period 03.04.96 to 18.06.96. He has identified the entry dated 17.04.96 for the account No.12367 maintained in the name of Kamal Kumar for issuance of cheque book bearing no.117051 to 117060. He stated that the said entry is in his handwriting and same is Ex.PW13/AM vide which he gave cheque book to accused (A1)S.K.Arora through Peon.
96. Regarding BoxJ, it is further the prosecution case that out of the above cheque book, four leaves were used by the accused Ashok Mehra (A2) to write self cheques, namely one self cheque dated 17.04.96 (D547) for Rs.15 Lakhs Ex.PW26/4, which was signed by A2 in the fictitious name of Kamal Kumar at point Q62 and Q64 and the same also bears signatures of A1 at point A (Q63). Similarly, it is the case of prosecution that another self cheque dated 04.05.96 (D552) for Rs.4 Lakhs Ex.PW13/C was drawn by A2 in the fictitious name of Kamal Kumar by which an amount of Rs.4 Lakhs was withdrawn from the account of Kamal Kumar Ramesh Chander bearing signatures of A2 at point Q65 and Q66. Similarly, another self cheque dated 24.04.96 (D
551) for Rs.8 Lakhs Ex.PW26/17 was written by A2 bearing his RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 83 of 158 84 signatures at point Q59A and Q61 by virtue of which Rs.8 Lakhs was withdrawn from the said account. Lastly vide self cheque dated 24.05.96 (D557) Ex.PW26/21 for Rs.5 Lakhs, the said amount was withdrawn by A2 by signing as Kamal Kumar at point Q70 and Q70A.
97. Regarding BoxK, it is the case of prosecution that vide credit voucher dated 24.4.96 (D550) an amount of Rs.19,86,940/ was prepared in the handwriting of A1. His handwriting was identified by PW13, bearing signatures of A1 at point A, same is Ex.PW13/B vide which the said amount was credited into the saving account of Kamal Kumar Ramesh Chander.
98. Regarding BoxL, it is the case of prosecution that vide credit transfer voucher dated 06.05.96 (D498) a sum of Rs.21,68,000/ Ex.PW33/F, which was prepared in the handwriting of S.K.Arora (A1) bearing his signatures at point A, the said amount was credited into the SB account No.12367 of Kamal Kumar Ramesh Chander.
99. Now, the Ld.defence counsel has assailed the RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 84 of 158 85 testimony of PW13 stating that he is a false witness and is not reliable at all, as he has deposed in his examination in chief that he remained posted at Basant Lok Branch from year 1991 till May 1997 and he has deposed that he knew A1, as he was posted as Branch Manager of OBC during the said period, when he was posted there from 1991 till 1996, when he was transferred from the said branch. Relying upon this part of testimony of PW13 he has deposed that the issuance of cheque book vide cheque book register Ex.PW13/AM, the same was issued by PW13 as per his own testimony, which is not possible as he was posted in Basant Lok Branch and not at Mahipal Pur Branch to which the said transaction pertains and therefore, the said witness is a false witness.
100. From the testimony of PW13, it appears that this fact appears to have been deposed by him that he was working in Basant Lok Branch, though the above transaction of cheque book issuance in the name of Kamal Kumar Ramesh Chander pertains to Mahipal Pur Branch and this fact could have been explained by him during his reexamination by the prosecution, but the same was not done for some reason. Be that as it may. Even if, the said witness under some confusion due to the nomenclatures of RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 85 of 158 86 branches i.e. Basant Lok as well as Mahipal Pur, stated that he worked in Basant Lok Branch, in both of which A1 had worked, even then it does not make much difference, as this witness would definitely know the handwriting and signatures of A1,under whom he was working, A1 being Branch Manager, as he would have seen him writing and signing day in and day out, therefore he would have been acquainted with his handwriting and signatures. PW13 in his cross examination by the prosecution stated that the said account pertained to Ashok Mehra (A2) and he was told about the same by S.K.Arora (A1) the said part of his statement is not admissible being hearsay, and he has further stated that he had stated to the CBI that S.K.Arora had obtained the signatures of account holder on the cheque book in his cabin which account he had brought in their branch from Basant Lok branch, this part of his testimony also clears the doubt that probably under some confusion during his deposition he had stated that he had worked in Basant Lok Branch from 1991 to 1997 and not in Mahipal Pur branch, which shows that he was not a false witness.
He further stated that he had stated to the CBI in his statement that A2 had came to collect the cheque Ex.PW13/C which he had stated on the basis of presumption, therefore it is RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 86 of 158 87 apparent from the testimony of PW13 that he could not identify the person to whom the said cheque book was issued vide entry Ex.PW13/AM specially as that being A2.
101. From the above discussion, i.e. with regard to the transactions shown in boxes A to L, the same have been duly proved by the prosecution, as they are not mere statements of witnesses who had seen any particular occurrence, which therefore suffers from errors of perception, recollection and later on narration in the Court, as some important facts may in the first place may not have been perceived by the witness and those perceived, gets glossed over due to time lag between deposition in the Court, as some facts get lost due to recollection, as some thoughts gets intermingled with other irrelevant thoughts, whereby leading to errors and further errors takes place during the loss of perceived data at the time of narration in the Court, as one tends to further loose certain important vital aspects during the actual deposition / narration in the Court. Since, all these witnesses are bank witnesses, who are well versed in banking transactions and it is not that they were deposing merely on their perception, but those depositions had been backed by tangible documents prepared during the course of official banking business i.e. in the RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 87 of 158 88 nature of credit / transfer voucher cheques/ statement of accounts and other banking documents which corroborates their testimonies to rule out any errors which may occur in perception of a witness observing a fact, at a particular, time, place continuum.
102. The main contentions of Ld.counsel for A2 and A3 are that, firstly the specimen handwriting / signatures cannot be taken by the Investigating Officer during the investigation, as the same is barred in view of the settled law decided in the case of Sapan Haldhar (Supra), State of UP Vs Ram Babu Mishra AIR1980 SC 791, Bharat Aneja (supra), Zafar Umar Khan, Mukesh Kumar (supra) and the judgment of Sukh Ram Vs State of HP (supra) decided by Hon'ble SC on 25.07.16. He has further argued that this is the reason why Section 311(A) was incorporated in the Cr.P.C in the year 2005, which gives power to the Magistrate to direct the accused to give his specimen signatures /writing during the investigation, but no such power even then, is available with the IO, bereft of the above provisions. He has, therefore argued that the sample specimen signatures/handwritings of A2 and A3 taken by the IO are per se illegal.
Secondly, he has argued that the samples does not belong to A2 and A3, as prosecution has failed to prove through RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 88 of 158 89 the testimonies of relevant prosecution witnesses PW26, PW33, PW27, PW42 IO that the samples belonged to A2 or A3, as none of the witnesses had identified the accused persons, as the persons of whom the samples were taken before them and none of them also say that samples of A2 and A3 were taken in their presence. Therefore, he has argued that there was no valid samples/material(s) available with the handwriting expert to come to the conclusion which he had reached, which even otherwise is perverse.
Thirdly, he has argued that the handwriting expert report of PW40 is not reliable, as his report is sketchy and perfunct and his version that the report was given by him as well as Sh.M.L.Sharma is false and even otherwise number of material contradictions have come out in his cross examination which shows that his testimony is not reliable, as he had not even asked for admitted writings of A2 and A3 for comparison with the disputed writings / signatures. He has further argued that the science of handwriting comparison is even otherwise an imperfect science in which there can be grave errors and it is not an exact science like in the case of comparison of thumb impressions or DNA fingerprinting in which chances of error are almost next to RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 89 of 158 90 impossible. He has even otherwise argued that it is settled law that the expert's evidence as to the handwriting is only an opinion evidence and before acting on such evidence, it is crucial to see that it is corroborated either by direct or circumstantial evidence for which he has relied upon judgment(s) AIR 1967 SC 1326 and AIR 1973 2200 (supra).
103. On the other hand Ld.PP for CBI has strongly refuted the said arguments relying upon the judgment Rabindra Kumar Pal @ Dara Singh Vs Republic of India (supra) as well as the judgment of Rekha Sharma Vs CBI delivered by Hon'ble Delhi High Court on 05.03.2015 in Crl.A 124/13 in support of his contention that in view of the said judgment it is clear that the specimen signatures/handwriting can be taken by Investigating Officer and there is no bar in doing so. He has further argued that the specimen signatures had been validly taken, as all the witnesses have clearly stated that specimen signatures were taken before them and even otherwise IO PW42 has clearly identified the accused persons as the persons, of whom the specimen signatures were taken before him and the IO would not have been under any misconception with regard to the identity of the accused persons having seen them all throughout the RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 90 of 158 91 investigation.
104. Now, in these circumstances the first point, whether the IO was competent or had the power to take specimen handwriting /signatures of A2 and A3 for examination/comparison by the expert during the investigation, is being dealt herein under In this regard Ld.counsel for A2 and A3 has relied upon following judgment(s), which are being reproduced in seriatum (1) It has been held in the judgment AIR 1980 SC 791 titled as State of UP Vs. Ram Babu Misra, the relevant para of the same is reproduced as under:
4. The second paragraph of Sec 73 enables the court to direct any person present in Court to give specimen writings 'for the purpose of enabling the Court to compare' such writings alleged to have been written by such person. The clear implication of the words 'for the purpose of enabling the Court to compare' is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of 'enabling the Court to compare' and not for the purpose of enabling the investigating or other RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 91 of 158 92 agency 'to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of S. 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. Further, S 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court. Would it be open to a person to seek the assistance of the Civil Court for a direction to some other person to give sample writing under S 73 of the Evidence Act on the plea that it would help him to decide whether to institute a Civil suit in which the question would be whether certain alleged writings are those of the other persons or not ?
Obviously not. If not, why should it make any difference if the investigating agency seeks the assistance of the Court under S. 73 of the Evidence Act on the plea that a case might be instituted before the Court where it would be necessary to compare the writings?
(2) It has been held in the Judgment 2012 VIII AD(Delhi) 533 titled as Sapan Haldar & Anr Vs. State, the relevant para(s) of the same are reproduced as under:
30. We answer the following reference as follows:
(i) Handwriting and signature are not measurements RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 92 of 158 93 as defined under clause(a) of Section 2 of The Identification of Prisoners Act, 1920. Therefore, Section 4 and Section 5 of the Identification of Prisoners Act, 1920 will not apply to a handwriting sample or a sample signature. Thus, an investigating officer, during investigation, cannot obtain handwriting sample or a signature sample from a person accused of having committed an offence.
(ii) Prior to June 23, 2006, when Act No. 25 of 2005 was notified, interalia, inserting Section 311A in the Code of Criminal Procedure, 1973, even a Magistrate could not direct a person accused to give specimen signatures or handwriting samples. In cases where Magistrates have directed so, the evidence was held to be inadmissible as per the decision of the Supreme Court in Ram Babu Mishra's case(Supra). According to Section 73 of the Indian Evidence Act, 1872, only the Court concerned can direct a person appearing before it to submit samples of his handwriting and/or signature for purposes of comparison.
31. Though not falling for consideration in this reference, with respect to finger prints, which are included in 'measurements', the weight of the authorities is that if by way of Rules or Executive instructions the manner is prescribed to take the measurements, alone then can an Investigating Officer, under Section 4 obtain the measurements but strictly as per manner prescribed; but it would be eminently desirable, as per the decision in Mohd. Arman's case(supra) to follow the procedure ordained under Section 5 of The Identification of RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 93 of 158 94 Prisoners Act, 1920. Relevant would it be to further note that in relation to offences punishable with death or imprisonment for life, Section 4 of The Identification for life, Section 4 of the Identification of Prisoners Act, 1920 would not be applicable because the said provision specifies a prerequisite:
that the person concerned is accused of having committed an offence which is punishable with a sentence to undergo rigorous imprisonment for a term of one year or upwards i.e the sentence must relate to imprisonment for a term and would thus exclude such offences where either capital punishment or imprisonment for life is the sentence contemplated.
Further, he has relied upon judgment AIR 1980 SC 531 titled as Murari Lal Vs. State of M.P, the relevant para(s) of the said judgment are reproduced as under:
11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In case where the reasons for the opinion RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 94 of 158 95 are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.
It was also held in the latest judgment of Hon'ble Apex court AIR 1992 SC 2100 titled as State of Maharashtra Vs. Sukhdev Singh Sikka, also discussed previous judgment , wherein it was held as under:
29. It is well settled that evidence regarding the identity of the author of any document can be tendered(i) by examining the person who is conversant and familiar with the handwriting of such person, or (ii) through the testimony of an expert who is qualified and competent to make a comparison of the disputed writing and the admitted writing on a scientific basis, and (111) by the Court comparing the disputed document with the admitted one. In the present case the prosecution has resorted to the second mode by relying on the opinion evidence of handwriting expert P.W 120. But since the science of identification of handwriting by comparison is not an infallible one, prudence demands that before acting on such opinion the Court should be fully satisfied about the authorship RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 95 of 158 96 of the admitted writings which is made the sole basis for comparison and the Court should also be fully satisfied about the competence and credibility of the handwriting expert. It is indeed true that by nature and habit, over a period of time, each individual develops certain traits which give a distinct character to his writings making it possible to identify the author but it must at the same time be realised that since handwritings experts are generally engaged by one of the contesting parties they, consciously or unconsciously, tend to lean in favour of an opinion which is helpful to the party engaging him. That is why we come across cases of conflicting opinions given by two handwriting experts engaged by opposite parties. It is, therefore, necessary to exercise extra care and caution in evaluating their opinion before accepting the same.
So Courts have as a rule of prudence refused t o place implicit faith on the opinion evidence of a handwriting expert. Normally Courts have considered it dangerous to base a conviction solely on the testimony of a handwriting expert because such evidence is not regarded as conclusive. Since such opinion evidence cannot take the place of evidence. True it is, there is no rule of law that the evidence of a handwriting expert cannot be acted upon unless substantially corroborated but Courts have been slow in placing implicit reliance on such opinion evidence, without more, because of the imperfect nature of prudence which has ripened into a rule of law that in no case can the Court base its RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 96 of 158 97 findings solely on the opinion of a handwriting expert but the imperfect and frail nature of science of identification of the author by comparison of his admitted handwriting with the disputed ones has placed a heavy responsibility on the Courts to exercise" extra care and caution before acting on such opinion. Before a Court can place reliance on the opinion of an expert, it must be shown that he has not betrayed any bias and the reasons on which he has based his opinion are convincing and satisfactory. It is for this reason that the Courts are wary to act solely on the evidence of a handwriting expert; that however, does not mean that even if there exist numerous striking peculiarities and mannerisms which stand out to identify the writer, the Court will not act on the expert's advice. In the end it all depends on the character of evidence of the expert and the facts and circumstances of each case.
30. In Ram Narain Case Vs. State of UP (1973) 2 SCC 86; (AIR 1973 SC 2200) this Court was called upon to consider whether a conviction based on uncorroborated testimony of the handwriting expert could be sustained. This Court held(para 4 of AIR) "It is no doubt true that the opinion of handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution. But this opinion evidence, which is relevant, may be worthy of acceptance if there is internal or external evidence relating to the RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 97 of 158 98 document in question supporting the view expressed by the expert"
A similar view was expressed in the case of Bhagwan Kaur Vs. Maharaj Krishan Sharma,(1973) 4 SCC 46:(AIR 1973 SC 1346) in the following words(para 27 of AIR):
"The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The courts should, therefore, by wary to give too much weight to the evidence of a handwriting expert,"
In Murari Lal Vs State of M.P.,(1980) 1704:(AIR 1980 SC 531) this Court was once again called upon to examine whether the opinion evidence of a handwriting expert needs to be substantially corroborated before it can be acted upon to base a conviction. Dealing with this oft repeated submission this Court pointed out(para 6 of AIR):
"Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identify of handwriting, the opinion of a person 'specially skilled' in questions as to identify of handwriting' is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated.
RC NO.4(E)/1998
CBI Vs S.K.Arora & Ors. 98 of 158
99
The Evidence Act itself(section 3) tells us that a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we set an artificial standard of proof not warranted by the provisions of the Act. Further, under Section 114 of Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that Section 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before being acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 99 of 158 100 for the opinion, consider all other relevant evidence and decide finally to accept or reject it"
After examining the case law in this Court proceeded to add(para 11 of AIR):
"We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinionevidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule, on a matter which, in the ultimate analysis, is no more than a question of testimonial weight"
What emerges from the case law referred to above is that a handwriting expert is a competent witness whose opinion evidence is recognised a relevant under the provisions of the Evidence Act and has not been equated to the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 100 of 158 101 would depend on the soundness of the reasons on which it is founded. But the court cannot afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as compared to the science of identification of finger prints; courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for corroboration but that is not to say that it is a rule of prudence of general application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the Court has to decide in each case on its own merits what weight it should attach to the opinion of the expert.
105. He has mainly relied upon judgment Sapan Haldar (supra) in support of his contention that an investigating officer, during investigation(s), cannot obtain handwriting sample or a signature sample from a person accused of having committed an offence except without Magistrate's direction, if he did so, it is not admissible in evidence and will not be of any use.
106. On the other hand, Ld. PP for CBI has refuted the said argument of Ld. Counsel for accused persons by relying upon the judgment Raksha Jindal Vs CBI (supra) and Dara Singh (supra) in which it has been held as under : (1) In Crl.A 124/13 Raksha Jindal Vs CBI, it was decided RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 101 of 158 102 by Hon'ble Delhi High Court on 05.03.2015 as under:
444. Strong resistance has come on behalf of appellants with regard to admissibility of the report of the handwriting expert. It was argued that the handwriting and signature specimens were obtained in blatant disregard of all prescribed procedure and the same has to be eschewed from consideration. Reliance is placed primarily on the Full Bench judgment of this Court in Sapan Haldar (supra).
445. Learned trial judge has taken note of the Supreme Court decision in Rabindra Kumar Pal alias Dara Singh v. Republic of India, (2011) 2 SCC 490, wherein the argument on admissibility of report of handwriting expert was urged and the Court observed that the same would be admissible despite having obtained the specimen handwriting and signature without permission of Court.
446. I have meticulously gone through the case laws cited at the Bar. The decision of the Supreme Court in Navjot Sandhu (supra) and reiterated in Dara Singh (supra) is quite clear. Expert evidence in the form of report on handwriting and signature specimens is not barred from consideration on the ground that they were obtained without permission of Court. The law on obtaining handwriting specimen is now specifically incorporated under Section 311A Cr.P.C. which came in to effect on 23.06.2006. The specimens were taken prior to this date and, therefore, the procedure prescribed by the section could not be adhered to. The decision in Ram Babu Mishra (supra) was based on the question whether the Magistrate is empowered to direct an accused to give his specimen writing and signature under Section 73 of the Evidence Act for the purpose of RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 102 of 158 103 enabling the Court to ―compare" such writings with writings alleged to have been written by such person. The Court in Ram Babu Mishra interpreted the purport of Section 73 and held that the words "for the purpose of enabling the Court to compare" assume continuance of some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of 'enabling the Court to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. It was observed that the language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. The ratio of this case was, therefore, limited to observing that Section 73 Indian Evidence Act is not an enabling provision for the Magistrate to give any such direction to an accused in a matter that is pending investigation. However, it cannot be said that as a necessary corollary to this principle, the specimen handwriting and signature is not obtainable at all during investigation. The investigating officer in a criminal case is empowered under Section 2(h) Cr.P.C to collect evidence and undertake various steps in that endeavor. The Supreme Court in Selvi v. State of Karnataka, (2010) 7 SCC 263 has endorsed this view and held that the term ―investigation? includes steps which are not exhaustively and expressly enumerated. Even otherwise, experience suggests that every crime requires its own tailor made investigation which may be peculiar to the circumstances of the case. It would not be prudent and neither possible to RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 103 of 158 104 exhaustively catalogue such steps taken during investigation in a code like Cr.P.C. Thus absence of a specific provision enabling a particular step under investigation does not imply that the investigation agency is disabled from taking that step under its power/duty (power coupled with duty) to conduct investigation. For e.g. the police during investigation of a murder case prepares the site plan, collects/seizes the blood stained earth, seizes various articles lying on the spot, seizes the weapon used during commission of crime, seizes the clothes of the victim and the accused etc. However, there is no such express provision in the Cr.P.C. or other statute to enable the police to undertake such acts for collection of evidence during investigation.
447. In this context I am reminded of the observations of Lord Halsbury in Quinn v. Leathem, (1901) A.C. 495 at p. 506, quoted with approval by a Constitution Bench of this Court in State of Orissa v. Sudhansu Sekhar Misra; (1970) ILLJ 662 SC and again in Orient Paper and Industries Ltd. and Anr. v. State of Orissa and Ors.; [1991] Supp. 1 SCC 81, at page 96:
―Now, before discussing the case of Allen v. Flood and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 104 of 158 105 a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.
448. The decision in Sapan Haldar (supra) again has considered the question whether handwriting and signature specimens are obtainable under Section 4 and 5 of the Identification of Prisioners Act, 1920 and the Court observed that since both handwriting and signature of a person are not a mark of identification, the same cannot be ―measurement as defined under Section 2(a) of the Identification of Prisoners Act. However, the very next line which declares that an investigating officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence is in teeth with the view adopted by the Supreme Court in Navjot Sandhu (supra) and Dara Singh (supra).
449. In view of the aforesaid discussion, I am of the opinion that the report of the expert and analysis of handwriting and signature specimens of the accused persons cannot be rendered inadmissible on the ground that it was obtained in violation of prescribed procedure.
(2) In (2011) 1 Supreme Court Cases (Cri) 706 Rabindra Kumar Pal @ Dara Singh Vs Republic of India, it was decided by the Hon'ble Supreme Court as under:
75. Another question which we have to consider is whether the police (CBI) had the power under CrPC to take specimen RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 105 of 158 106 signature and writing of A3 for examination by the expert. It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen signature on the asking of the police and only after the amendment of CrPC in 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signature for the purpose of investigation. Hence, it was pointed out that taking of his signature/writings being per se illegal, the report of the expert cannot be used as evidence against him.
76. To meet the above claim, the learned Additional Solicitor General heavily relied on a elevenJudge Bench decision of this Court in State of Bombay Vs Kathi Kalu Oghad. This larger Bench was constituted in order to reexamine some of the proposition of law laid down by this Court in M.P.Sharma Vs Satish Chandra.
77. After adverting to various factual aspects, the large Bench formulated the following questions for consideration:
(Kathi Kalu Oghad case, AIR pp.1810 & 1812, paras 2 & 4) "2. ... On these facts, the only questions of constitutional importance that this Bench has to determine are; (1) whether by the RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 106 of 158 107 production of the specimen handwritings, Exts. 27,28 and 29, the accused could be said to have been 'a witness against himself' within the meaning of Article 20(3) of the Constitution; and (2) whether the mere fact that when those specimen handwritings had been given, the accused person was in police custody could, by itself, amount to compulsion, apart from any other circumstances which could be urged as vitiating the consent of the accused in giving those specimen handwritings. ...
4. ... The main question which arises for determination in this appeal is whether a direction given by a court to an accused person present in court to give his specimen writing and signature for the purpose of comparison under the provisions of Section 73 of the Evidence Act infringes the fundamental right enshrined in Article 20(3) of the Constitution."
The following conclusion/ansers are relevant: (AIR pp. 181417, paras 1012 &
16) "10. ... 'Furnishing evidence' in the latter sense could not have been RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 107 of 158 108 within the contemplation of the Constitutionmakers for the simple reason thatthough they may have intended to protect an accused person from the hazards of self incrimination, in the light of the English law on the subjectthey could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to prtect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. ...
11. ... When an accused person is called upon by the courtor any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of a 'personal testimony' must depend upon his volition. He can make any kind of RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 108 of 158 109 statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness'.
12. ... A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony'.
16. In view of these considerations, we have come to the following conclusions RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 109 of 158 110 (1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.
(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.
(3) 'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 110 of 158 111 trial to dertermine the guilt or innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness'.
(5) 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in court or otherwise.
(6) 'To be a witness' in its ordinary grammatical sense means giving oral testimony in court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in court or out of court by a person accused of an offence, orally or in writing.
(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 111 of 158 112 made."
78. In view of the above principles, the procedure adopted by the investigating agency, analysed and approved by the trial court and confirmed by the High Court, cannot be faulted with. In view of the oral report of Rolia Soren, PW 4 which was reduced into writing, the evidence of PW 23, two letters dated 122002 and 22 2002 addressed by Mahendra Hembram (A3) to the trial Judge facing (sic confessing) his guilt coupled with the other materials, we are unable to accept the argument of Mr. Ratnakar Dash, learned Senior Counsel for Mahendra Hembram (A3) and we confirm the conclusion arrived at by the High Court.
107. In Para no.75 of the judgment Rabindra Kumar Pal @ Dara Singh, the Hon'ble Supreme Court had specifically considered this question, whether the police (CBI) had power under Cr.P.C to take specimen signatures and handwriting of one of the accused for examination by one of the expert, as it was pointed out that during the investigations, even the Magistrate cannot direct the accused to give his specimen handwriting / signature on the asking of police and only after the amendment of Cr.P.C in 2005, power had been given to the Magistrate to direct RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 112 of 158 113 any person including the accused to give his specimen signature(s) for the purpose of investigation. Hence, it was argued that taking of signature / writings being per se illegal, therefore the report of the expert cannot be used as evidence against the accused.
In answering the above question, the Hon'ble Supreme Court relied upon its own judgment of State of Bombay Vs Kathi Kalu Oghad AIR 1961 SC 1808, ultimately it was held in Para 78 that the procedure adopted by the investigating agency, analyzed and approved by the Trial Court and confirmed by the Hon'ble High Court, cannot be faulted with. The Hon'ble Supreme Court answered this question in affirmative that the Investigating Officer had the power under Cr.P.C to take specimen signature / handwriting of the accused for comparison by the expert. The contrary argument by Ld. Counsel for accused persons in this regard was discarded. This view was also taken by our own Hon'ble High Court in Raksha Jindal (supra) as reproduced above in Para 444 to 449, in which Hon'ble High Court of Delhi had also considered its own judgment of Sapan Haldar (supra) and after considering the said judgment, Hon'ble HighCourt held that in view of the judgment of Hon'ble Supreme Court in Navjot RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 113 of 158 114 Sandhu and Dara Singh (supra) and by virtue of Section 2(h) of the Cr.P.C, the Investigating Officer in a criminal case is empowered to collect such evidence and undertake various steps in that endeavor and in this regard, it also relied upon judgment Selvi Vs State of Karnataka (2010) 7SCC 363, after considering the judgment of Ram Babu Mishra (supra) and held that the ratio of the said case was limited to observation that Section 73 of the Evidence Act is not an enabling provision for the Magistrate to give any direction to an accused in a matter that is pending investigation and ultimately in Para no.449, the Hon'ble High Court after discussing the aforesaid judgments held as under:
449. In view of the aforesaid discussion, I am of the opinion that the report of the expert and analysis of handwriting and signature specimens of the accused persons cannot be rendered inadmissible on the ground that it was obtained in violation of prescribed procedure.
108. In view of the law laid down by Hon'ble Supreme Court in Dara Singh (supra) and Navjot Singh Sandhu (supra) and in view of the judgment of Hon'ble High Court of Delhi in Raksha Jindal (supra), wherein it had discussed and distinguished the judgment of our own Hon'ble High Court in Sapan Haldar Full RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 114 of 158 115 Bench, in my respectful view, the judgment(s) of Sapan Haldar, Ram Babu Mishra and Sukh Ram (supra) are not applicable to the peculiar facts and circumstances of the present case. Therefore, the IO of this case was competent to take the specimen handwriting as well as signature samples of A1, A2 and A3 during the investigation(s) and the said procedure adopted by him cannot be faulted.
109. Now, regarding the specimen signature part, it is the argument of Ld. Counsel for A2 and A3 that prosecution has failed to prove that the specimen signature of A2 and A3 were indeed theirs and belonged to them. In this regard, prosecution has examined PW26 Sh.Updesh Sharma and PW33 Sh.Vinay Sagar Gupta pertaining to the specimen signature of A2, which are S77 to S84. The witness PW26 Sh.Updesh Sharma, on being shown (D648) pages no.1 to 8 of the same with regard to the specimen signature S77 to S84, identified his signatures and writings in encircled portion A on each sheet and the said sheets were collectively exhibited as Ex.PW26/41 (colly.). He also stated that the specimen signatures were taken in his presence which were encircled in blue pencil on each page. However, he did not identify the person, as to whose specimen signatures were taken RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 115 of 158 116 in his examinationinchief i.e. to say that he did not identify A2, as the person to whom the said specimen signatures pertained.
110. The next witness in whose presence the specimen signatures of A2 were also allegedly taken is PW33 Sh.Vinay Sagar Gupta. He has deposed after seeing specimen signatures and writings of A2 that those marked as S85 to S91 are of Ashok Mehra (A2) and he was called by the CBI and he signed on sheets of paper marked as S85 to S91 on each sheet at point A and said sheets are collectively exhibited as Ex.PW33/C (colly.) and he also stated that specimen signatures and handwritings of Ashok Mehra were taken in his presence by the IO in the encircled portion in blue pencil. Though, there was some incongruency in his cross examination, as he stated that on 15.04.99 specimen signatures of three persons were taken, but he do not remember the names of those persons and he also do not remember how many sheets were signed by those three persons and he also attended the CBI office on twothree occasions, but on those dates his statements were recorded, but no specimen were taken.
111. Relying upon this part of statement of PW33, Ld.counsel for A2 and A3 argued that it shows that specimen signatures were taken on blank sheets and signatures of PW33 RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 116 of 158 117 were taken later on. This argument is without any substance, as PW33 in his cross examination stated that specimen signatures were not taken after 15.04.99, but at the same time he has stated in his examination in chief that specimen signatures appearing on Ex.PW33/C pertained to Ashok Mehra (A2) and they were taken in his presence and all of them bears his signatures and they were encircled in blue colour by the IO. In any case, any doubt with regard to the same has been cleared during the testimony of PW 42 IO Sh.S.C.Dandriyal, as he has deposed that the specimen handwritings /signatures of A2 (D648) Ex.PW26/14 (colly.) bears his signatures at point B on each page. Therefore, in view of the testimony of IO, who would have known the identity of A2 and other accused persons, as he would have dealt with him all through out the investigation, the dispute with regard to the identity of the person to whom the said specimen signatures belonged, has been cleared by the testimony of the IO, as the specimen signatures were not only taken in the presence of IO, but also in the presence of independent witnesses PW26 and PW33 separately. Both PW26 and PW33 were responsible officers of OBC and they were not police officers or witnesses of doubtful nature that they would have acceded to the request of the IO or RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 117 of 158 118 would have connived with or have helped the IO in taking the specimen signatures /handwritings on blank documents.
112. Similarly, prosecution has relied upon the testimony of PW27 Sh.S.B.Mathur, who after being shown pages no.1 to 8 of D649, which allegedly contained the specimen signatures of Padam Kumar (A3), identified his handwriting and signatures in encircled portion A on each page, which are collectively exhibited as Ex.PW27/B (colly.). He stated that the handwriting written in black ink "in my presence' was written by him on each page. Though, this witness did not identify A3, as the person to whom the said specimen signatures pertained, however as discussed above, any doubt in this regard had been clarified by the IO, who had dealt with the accused persons all through out the investigation and there would not have been any doubt left with regard to the identity of the person giving the specimen signature(s), as PW42 in his examinationinchief has stated after seeing the specimen signatures and handwriting (D649) Ex.PW27/B (colly.) that the same bears his signatures at point B on each page. Therefore, the identity of this accused having given the said sample has been duly established. Even otherwise, PW 27 was the witness of Officer of Bank and was not a witness of RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 118 of 158 119 doubtful character that he would have collaborated with the IO in obtaining the specimen signatures either on blank sheets or would nod his head in taking the specimen signatures of some other person and present the Court saying that they belonged to the accused persons. In fact, during the cross examination certain suggestions were given by ld. Counsel for A2 and A3 in this regard to the IO, but he emphatically denied that the specimen signatures / writings were intermingled and were not of the person shown by him i.e. the accused persons. He also denied the suggestion that the persons giving specimen signatures / writings were asked to copy the questioned signatures / writings, thereby denying the claim of the accused persons.
113. Regarding the specimen signatures of A1 S.K.Arora (deceased), the same have been proved by PW27, who stated on being shown pages nos.20 to 34 of D645 that his signatures and handwritings were in encircled portion A on each page and pages nos.20 to 34 (S8 to S23)are collectively exhibited as Ex.PW27/A (colly.) and handwriting written in black ink "in my presence" is written by him on each sheet. The IO had also stated so in his examinationinchief that the specimen signatures of A1 were taken in his presence on D645 (S155 to S196) which are RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 119 of 158 120 Ex.PW30/A (colly.). In any case, as discussed above, both PW27 and PW42 IO would not have had any doubt regarding the identity of A1, as PW27 was the bank officer, who would have worked with him in discharge of his official duties and IO would have dealt with him during his investigations.
114. Dealing with the next contention, it has been argued by Ld. Counsel for A2 and A3 that in view of judgment(s) AIR 1973 SC 2200 and AIR 1967 SC 1326 the experts evidence as to handwriting is only an opinion evidence and it can rarely take the place of substantive evidence. Before acting upon such evidence it has to be seen whether such evidence was corroborated by substantive evidence. Relying upon aforesaid judgment(s), he has argued that in the present case nobody had seen A2 and A3 visiting the bank, as no prosecution witness had come forward who states that they had seen A2 and A3 visiting the bank and dealing with the account of Kamlesh Kumar Ramesh Chander in the said bank. In this regard, the only evidence relied upon by the prosecution is the testimony of PW40 Sh.Mohinder Singh in support of its contention that the signatures appearing on the questioned document matches with the specimen signatures and RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 120 of 158 121 handwritings of A2 and A3. He has further argued that even otherwise, the science of handwriting is an inexact science, it is not an exact science like in the case of comparison of thumb impressions or DNA fingerprinting, which is scientifically proved, consequently opinion of handwriting expert is prone to errors and it is only an opinion of a person and it is not a factual science and even in the cross examination of PW40, number of discrepancies have been pointed out or have been shown, which shows that the opinion given by him is not a reliable one and cannot be acted upon.
115. In this regard, he has relied upon judgment of Hon'ble Supreme Court, Tomaso Bruno Vs State of U.P 2015(2) JCC 884 (SC), relevant para is reproduced as under:
40. The Courts, normally would look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory and unsustainable. We agree that the purpose of an expert opinion is primarily to assist the court in arriving at ta final conclusion but such report is not a conclusive one. This court is expected to analyse the report read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not. As discussed earlier, serious doubts arise about the cause of death stated in the postmortem reports.
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He has also relied upon one more judgment on this point of Hon'ble Supreme Court in Ramesh Chander Agrawal Vs Regency Hospital Ltd. & Ors. JT 2009 (12) SC 377, relevant para is reproduced as under:
13. The importance of the provision has been explained in the case of State of H.P. Vs Jail Lal and Ors. MANU/SC/0557/1999:(1999) 7 SCC 280. It is held, that, Section 45 of the Evidence Act which makes opinion of experts admissible lays down, that, when the Court has to form an opinion upon a point of foreign law, or of science, or art, or in questions as to identify of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.
14. It is not the province of the expert to act as Judge or Jury. It is stated in Titli Vs. Jones AIR 1934 ALL 237 that the real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials.
15. An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 122 of 158 123 criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration alongwith other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the date and material furnished which form the basis of his conclusions(See Malay Kumar Mukherjee and Ors.) Criminal Appeal Nos. 11911194 of 2005 alongwith Civil Appeal No. 1727 of 2007, decided on 07.08.2009
16. In the case of State of Maharashtra Vs. Damu S/o Gopinath Shinde and Ors. MANU/SC/0299/2000:" AIR 2000 SC 1691 at page 1700, it has been laid down that without examining the expert as a witness in Court, no reliance can be placed on an opinion alone. In this regard, it has been observed in The State(Delhi Administration) v. Pali Ram MANU/SC/0189/1978: AIR 1979 SC 14 that "no expert would claim today that he could be absolutely sure that his opinion was correct, expert depends to a great extent upon the materials put before him and the nature of question put to him"
17. In the Article " Relevancy of Expert's Opinion" it has been opined that the value of expert opinion rest on the facts on which it is based and his competency for forming a reliable opinion. The evidentiary value of the opinion of expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. Thus the idea that is proposed in its crux means that the importance of an opinion is decided on the basis of credibility of the expert and the relevant facts supporting the opinion so that its accuracy can be cross checked. Therefore, the emphasis has been on the data on basis of which opinion is formed. The same is clear from following inference: Mere RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 123 of 158 124 assertion without mentioning the data or basis is not evidence, even if it comes form expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value.
116. On the other hand Ld.Public Prosecutor for CBI has relied upon following judgment(s) (1) AIR 1980 SC 531 titled as Murari Lal Vs. State of M.P, the relevant para of the said judgment is reproduced as under:
11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In case where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.
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(2) It was also held in the judgment of Hon'ble Apex court AIR
1992 SC 2100 titled as State of Maharashtra Vs. Sukhdev Singh Sikka, wherein above judgment was also discussed, therein it was held as under:
29. It is well settled that evidence regarding the identity of the author of any document can be tendered(i) by examining the person who is conversant and familiar with the handwriting of such person, or (ii) through the testimony of an expert who is qualified and competent to make a comparison of the disputed writing and the admitted writing on a scientific basis, and (111) by the Court comparing the disputed document with the admitted one. In the present case the prosecution has resorted to the second mode by relying on the opinion evidence of handwriting expert P.W 120. But since the science of identification of handwriting by comparison is not an infallible one, prudence demands that before acting on such opinion the Court should be fully satisfied about the authorship of the admitted writings which is made the sole basis for comparison and the Court should also be fully satisfied about the competence and credibility of the handwriting expert. It is indeed true that by nature and habit, over a period of time, each individual develops certain traits which give a distinct character to his writings making it possible to identify the author but it must at the same time be realised that since handwritings experts are generally engaged by one of the contesting parties they, consciously or unconsciously, tend to lean in favour of an opinion which is helpful to the party engaging him.
RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 125 of 158 126 That is why we come across cases of conflicting opinions given by two handwriting experts engaged by opposite parties. It is, therefore, necessary to exercise extra care and caution in evaluating their opinion before accepting the same. So Courts have as a rule of prudence refused t o place implicit faith on the opinion evidence of a handwriting expert. Normally Courts have considered it dangerous to base a conviction solely on the testimony of a handwriting expert because such evidence is not regarded as conclusive. Since such opinion evidence cannot take the place of evidence. True it is, there is no rule of law that the evidence of a handwriting expert cannot be acted upon unless substantially corroborated but Courts have been slow in placing implicit reliance on such opinion evidence, without more, because of the imperfect nature of prudence which has ripened into a rule of law that in no case can the Court base its findings solely on the opinion of a handwriting expert but the imperfect and frail nature of science of identification of the author by comparison of his admitted handwriting with the disputed ones has placed a heavy responsibility on the Courts to exercise" extra care and caution before acting on such opinion. Before a Court can place reliance on the opinion of an expert, it must be shown that he has not betrayed any bias and the reasons on which he has based his opinion are convincing and satisfactory. It is for this reason that the Courts are wary to act solely on the evidence of a handwriting expert; that however, does not mean that even if there exist numerous striking peculiarities and mannerisms which stand out to identify the writer, the Court will not act on the expert's advice. In the end it all depends on the character of evidence of the expert and the facts and circumstances of each case.
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117. On the combined reading of all the above judgment(s), it is held that there is no rule of law nor any rule of prudence, which has crystallized into a rule of law that opinion evidence of a handwriting expert can never be acted upon unless substantially corroborated, as an expert is not an accomplice, therefore there is no justification for condemning his evidence to the same class of evidence as that of an accomplice and insist upon corroboration, but having due regard to the imperfect nature of science of identification of handwriting, the approach should be one of caution. The reasons for the opinion must be carefully probed and examined and it was also held, in the cases, where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of handwriting expert may be accepted. There cannot be any inflexible rule in this regard and in the ultimate analysis, it is no more than a question of testimonial weight to be given to the testimony of the said witness when taken as a whole, like it is done for any item of prosecution or defence evidence during the process of evaluation of evidence. The quality of his opinion would depend upon the soundness of evidence on which it was founded. In this light, it has to be seen whether PW40 the handwriting expert, has given a RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 127 of 158 128 reliable opinion after comparing the questioned documents with the admitted specimen handwriting / signatures of A1, A2 and A 3.
118. Firstly with regard to the specimen card/account opening form pertaining to BoxH, which was opened on 17.04.16 vide (D544) Ex.PW26/13. PW40 the handwriting expert vide his report Ex.PW40/C4 has opined that the questioned writing at Q 60A (which is appearing on the application/specimen card) after comparison with the specimen signatures/writings S1 to S29, S 114 to S142, S142A, S142B and S155 to S196 have been written by one and the same person. He has also given detailed reasons for arriving at the said conclusion based on individual writing habits and other criteria. In any case, the writing on the said point Q60A is also corroborated by the testimony of PW26, as he in his testimony has identified the signatures appearing at point Q60A as that of A1 and nothing has come out in his cross examination which could show that he was not a reliable witness. In these circumstances, the specimen signatures of A1 appearing on (D544) Ex.PW26/13 at point Q60A have been proved to be in the handwriting of A1.
119. Regarding (D547) Ex.PW26/14 which is a self cheque RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 128 of 158 129 of Rs.15 Lakhs by which the said amount was withdrawn from the said saving bank account No.12367 of Kamlesh Kumar Ramesh Chander. The signatures at point Q63 has also been opined by vide opinion no.2 in Ex.PW40/C4 as that of A1 and same is also corroborated by the testimony of PW13, who also identified the signatures of A1 on the same. Therefore, the testimony of PW13 converges with the testimony of PW40 on the said point.
120. Regarding another cheque (D551) Ex.PW26/17 for Rs.8 Lakhs, the said expert PW40 again in his report Ex.PW40/C 4 has opined that the signatures appearing at Q60 after comparing with the admitted signatures of A1 are of A1. The same is also corroborated by the testimony of PW26 and therefore the testimony of PW40 and PW26 converges with each other and it boosts the testimonial weight of the said item of evidence.
121. Regarding a cheque Ex.PW13/C (D552) for Rs.4 Lakhs, PW13 has stated that the same was filled up in the handwriting of A1. All these witnesses PW13 and PW26 are the bank officials, who had worked with A1 during the course of their banking duties, so they had seen him day in and day out and therefore they can be said to be highly conversant with his RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 129 of 158 130 handwriting and signatures and there could not have been any doubt with regard to the same in their mind.
122. Regarding cheque dated 24.05.96 (D557) Ex.PW26/21 for Rs.5 Lakhs, the said cheque was prepared by some other banking official, therefore it is not relevant for discussion qua these accused persons.
123. Now, adverting to the opinion of PW40 with regard to the alleged signatures of A2 on the four self cheques. D547 Ex.PW26/14, which is a self cheque for Rs.15 Lakhs dated 17.04.96. The handwriting expert in his report Ex.PW40/C1 and Ex.PW40/C3 vide opinion no.6 has opined that the signatures appearing at points Q62 and Q64 on the said instrument/cheque have been written by the same person, who wrote the specimen handwriting / signatures S77 to S91, which pertained to (A2) Ashok Mehra. He has also given detailed reasons in support of his findings depending upon individual writings habits and other characteristics.
124. Regarding the other self cheque bearing no.117053 (D552) Ex.PW13/C, the same handwriting expert in his report Ex.PW40/C3 and Ex.PW40/C1 vide opinion no.6 has opined that the signatures at point Q65 and Q66 have been written by (A2) RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 130 of 158 131 Ashok Mehra on the instrument/cheque Ex.PW13/C.
125. Now, the same expert has given opinion vide opinion no.6 in his report Ex.PW40/C3 and Ex.PW40/C1 with regard to cheque/instrument (D551) Ex.PW26/17, which is a self cheque of Rs.8 Lakhs dated 24.04.96 that the handwriting / signatures at points Q59A and Q61 are that of (A2) Ashok Mehra.
126. Regarding (D557), which is a self cheque of Rs.5 Lakhs Ex.PW26/21 dated 24.05.96, the expert has again gave opinion vide opinion no.6 in his report Ex.PW40C3 and Ex.PW40/C1 that the signatures/handwritings at points Q70 and Q70A on the said said instrument/cheque have been made by (A2).
127. Vide aforesaid four self cheques an amount totalling Rs.32 Lakhs was withdrawn by A2, while signing as Kamal Kumar from the saving bank account no.12367 opened in the fictitious name of Kamal Kumar Ramesh Chander.
128. Regarding the signatures appearing on specimen signature card dated 17.04.96 Ex.PW26/13 at points Q56, Q 58 and Q59, as per the opinion no.7 of report Ex.PW40C3 and Ex.PW40/C1, it has been opined that the same has been written by the person who has given specimen signatures / handwritings RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 131 of 158 132 at S92 to S99, which pertained to (A3) Padam Kumar. The detailed reasons have also been given to arrive at the said opinion based upon independent writing habits and other peculiarities attached with the same.
It would be pertinent to reproduce herein below following excerpt from Albert Sherman Osborn, who is considered the father of the science of questioned document examination in North America Handwriting is a visible effect of bodily movement;
and this bodily movement is the almost conscious expression of fixed mascular habits, reacting from fixed mental expressions of certain ideas associated with script forms environment education, and occupation effects individuals so variously in the formation of these mascular habits, that finally the act of writing becomes an automatic succession of acts stimulated by these habits.
'Thus a persons style of writing in most details becomes as fixed as habit, and serves as a continuous inseparate mark of that person' 'Moreover the imitation of the style of writing by another person becomes difficult because the other RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 132 of 158 133 person cannot be mere will power reproduce in himself all the muscular combinations, which form the habits of the first writer' Thus the data of graphic science makes it possible to assert almost the universality of the proposition:
No two persons handwriting are normally the same, nor they be made precisely the same by will power except from Albert. S. Osborn "Questioned documents"
(Albany, 2nd Ed. 1929) This can be elaborated as under: P= x wrote this document in his own normal style C=X's possession of an habitual handwriting style, consisting of items p.q.t etc. same as habitual style of writing in Document D. P = x wrote document D C = C1 + C2 + C3 + C4 + C5 + C6 C1 = items p.q.t are found in documents D C2= items p.q.t etc., constitute habitual style in document D C3 = a person habitually writing in that style must RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 133 of 158 134 have written said document C4 = items p.q.t are found in X'C document C5 = items p.q.t constitute the habitual style of X C6 = No other person could write in that style
129. Now, what are the rules of caution, which the Court should take into consideration while evaluating the testimony of a person, who is stated to be an expert. Since in the case of A1, there was corroboration of his handwriting and signatures by other bank officials, so it made the testimony of PW40, who gave a positive report even stronger by the rule of corroboration, thereby boosting the testimonial weight of the opinion of PW40 on that aspect. The difficulty is, with regard to the fact, there is no corroboration with regard to the handwriting and signatures of A2 and A3, as there was no direct evidence lead by the prosecution on this aspect i.e. to say that nobody had seen them writing or signing those instruments or seen them visiting the bank and opening/operating the said account in the name of Kamal Kumar Ramesh Chander. The only person who could have done so was A1, who was made an accused in this case, who is now dead. In these circumstances, it has to be seen that, firstly whether PW40 RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 134 of 158 135 can be termed as an expert i.e. he can be said to be highly skillful in his work as an handwriting expert, thereby ruling out any errors in his report. Secondly, how credible or trustworthy he is, which can be judged from his past record i.e. to say that if he has been reprimanded or prosecuted for perjury, then it can be said that his testimony is not much reliable. In this regard, the Court has to see that the opinion evidence must be offered by a competent witness, possessing knowledge of the facts and impression about which he is testifying and the said evidence must be reliable. Accordingly, the testimony of PW40 is being assessed on these criteria(s).
130. PW40 at the very outset has stated that he had retired from GEQD CFSL Hyderabad on 31.07.12. He was M.Sc in Chemistry and has received his specialized training in scientific examination of documents including handwriting identification and forgery detection for about 3 years from Government of India Laboratory at Hyderabad and he was in this profession for the last about 39 years and had independently examined thousands of documents expressing his opinion on them and he has also appeared as an expert witness in various Courts of Law. Prior to his promotion and posting at GEQD Hyderabad, he remained posted as AGEQD and Dy.GEQD in the office of GEQD Shimla.
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These credentials spoken to by PW40 in his examinationinchief have not been assailed at all during his cross examination and this man who has been in this profession for the last 39 years and has independently examined thousands of documents expressing his opinion on them after receiving 3 years specialized training from Government of India Laboratory, can be termed as an expert and well versed in his field. So, he can be said to be an expert, capable of possessing requisite knowledge for testifying in the Court pertaining to science of handwriting comparison. He has given detailed reasons for arriving at said conclusions. He has stated in his cross examination that he found approximately 37 similarities between the questioned and standard writings pertaining to S.K.Arora (A1) and he found approximately 8 similarities between the questioned and standard writings pertaining to Ashok Mehra (A2) and he he had also found approximately 13 similarities between the questioned and standard writings pertaining to Padam Kumar (A3). Therefore, while arriving at said conclusion, said expert had not relied upon one or two similarities in the writings of A2 and A3, but he had found as much as 8 to 13 similarities between questioned and standard writings of A2 and A3. More the similarities less the RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 136 of 158 137 chances of errors.
131. Though he did not ask for the admitted writings of A2 and A3 from the CBI, but that to my mind does not effect his credibility or his sample size for comparison, as he had sufficient sample size available with him in the form of specimen writings and signatures of A2 and A3 for comparison with the questioned writings to arrive at the said conclusion. The cross examination of said witness has been carried out at length, but it in no way helped the case of the accused persons, as some sort of attempt has been made to impact his credibility or lower the probative force of his testimonial deposition, but the cross examination carried out in this regard is not of such character, so as to bring down the probative force of his testimonial deposition to unreliable levels i.e. to say generally before any witness embarks upon his testimony i.e. before he embarks for his examinationinchief, then probative force of his deposition remains 100% and usually during examinationinchief it remains so. It is only during the cross examination of said witness the probative force of the testimonial deposition of any witness is brought down, when it is tested during the cross examination on the point of veracity, observational sensitivity and objectivity and the probative force of the testimonial RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 137 of 158 138 deposition of the witness say falls to 3040% from his initial level of 100%, then the person is said to be highly unreliable, but if the probative force of his testimonial deposition remains in the zone of 7080% even after cross examination, then it can be said to be reliable in nature.
132. In the present case, despite lengthy cross examination of this witness, nothing material has come forth, which could show that he is not a reliable witness or was biased towards the prosecution and against the accused persons. In any case, PW 40 was working as AGEQD Shimla under Government of India Laboratory on which the prosecution had no control. Therefore, there could not have been any bias against or in favour of the accused persons. It is not that he had blindly given the positive report on all the items submitted before him for comparison. In some cases, he has stated that he is not able to express any definite opinion on items on the basis of material supplied, thereby showing his impartiality.
133. In any case, it is not an individual report written by him alone, but the same has been written under the guidance of his senior Sh.M.L.Sharma, who has also signed on the said report as Dy.GEQD. Both have opined and reached the same conclusion.
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If there was any error in the report of PW40, then his senior would not have signed agreeing with him, concurring with his opinion. They after independently examining the said questioned signatures/writings with the specimen signatures/writings supplied to them, independently reached to the same conclusion. In any case, the purpose of corroboration is to rule out the errors which may occur in the testimony of a single witness due to the errors of objectivity, observational sensitivity and veracity. If the two persons are agreeing to the same thing, then any possible error in the testimony of single witness is thereby ruled out by the Principle of Confirmation of facts, as single person may be prone to errors, but two persons examining the same document including the one who is senior to the one who is testifying in the Court, having much more experience also agreeing with him and stating so, rules out the errors in the testimony of the said single witness. From the opinion of the handwriting expert discussed above, it is apparent that certain writing habits which were peculiar to the writing style of the authors i.e. A2 and A3 were found in the documents in question which leads to an inference that a person habitually writing in that style must have written the documents in question and nobody else would have written those RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 139 of 158 140 documents, thereby ruling out an errors in the report of the handwriting expert. Therefore, the testimony of handwriting expert is of such a nature / standard that the conviction of A2 and A3 can be solely based upon the said testimony, as he had no axe to grind against any of the accused persons.
REGARDING CONSPIRACY
134. Now it is to be seen, whether the acts of A1, A2 and A3 also attracts criminal liability of conspiracy under the provisions of IPC and PC Act. In this regard, it is to be pointed out that besides A1 (since deceased), A3 has been charged for the offence punishable u/S u/S 120B IPC r/w Sec.13(2) r/w Sec.13(1)
(d) of PC Act and Sections 420/467/468 and 471 IPC and substantive offence u/S 467 and 471 IPC. Besides that A2 has been charged for the offence punishable u/S 120B IPC r/w Sec.13(2) r/w Sec.13(1)(d) of PC Act and Section 420/467/468 and 471 IPC and substantive offence(s) u/S 420/467/468/471 IPC. It is to be seen whether any conspiracy is made out or inference of conspiracy can be drawn from the evidence and documents available on the record.
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135. Regarding conspiracy part, relevant law was discussed by Hon'ble Supreme Court in the case titled K.R.Purushothaman Vs State of Kerala (2005) 12 Supreme Court Cases 631, relevant extract is reproduced as under:
11. Section 120A IPC defines "criminal conspiracy". According to this Section when two or more persons agree to do, or cause to be done
(i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. In Major E.G.Barsay V. State of Bombay Subba Rao J., speaking for the Court has said :(SCR p.228)
12. "The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts."
13. In State V. Nalini it was observed by S.S.M. Quadri, J. at JT para 677: (SCC pp.56869, para
662) "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 141 of 158 142 sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus with the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences."
14. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators take active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 142 of 158 143 can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the wellknown rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.
15. Suspicion cannot take the place of legal proof and prosecution would be required to prove each RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 143 of 158 144 and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. Mohd. Yusuf Momin V. State of Maharashtra, that: (SCC pp.699700, para 7)
16. "[I]n most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."
17. It is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Of course, each one of the circumstances should be proved beyond reasonable doubt. The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. While speaking for the Bench it is held by P. Venkatarama Reddi, J. in State (NCT of Delhi) V. Navjot Sandhu (p.63) as follows: (SCC pp.69192, para 103) "103. We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 144 of 158 145 even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the nonparticipant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle.
136. It has been further held in a case 1999 Cri.L.J.3124 State of Tamil Nadu through Superintendent of Police CBI/SIT Vs Nalini and others WITH T.Suthenthiraraja alias Santhan and others Vs State by DSP, CBI, SIT, Chennai WITh P.Ravichandran and others Vs State by DSP, CBI, SIT, Chennai WITH Robert Payas and others Vs State by DSP, CBI, SIT, Chennai WITH S.Shanmugavadivelu and others Vs State RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 145 of 158 146 by DSP, CBI, SIT, Chennai WITH S.Nalini and others Vs State by DSP, CBI, SIT, Chennai, as under: "110. The first condition which is almost the opening lock of that provisions is the existence of "reasonable ground to believe" that the conspirators have conspired together. This condition will be satisfied even when there is some prima facie evidence to show that there was such a criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by one of the conspirators becomes substantive evidence against the other, provided that should have been a statement "In reference to their common intention". Under the corresponding provision in the English Law the expression used is "in furtherance of the common object". No doubt, the words "in reference to their common intention" are wider than the words used in English Law, (vide Sardar Sardul Singh Caveeshar v. State of Maharashtra, (1964) 2 SCR 378: 1965 (1) Cri.L.J.608: (AIR 1965 SC 682).
137. Regarding A1 and A2, there was definitely conspiracy between them, as A1 was instrumental in opening a fictitious account in his Mahipal Pur branch, OBC in the name of Kamlesh Kumar Ramesh Chander vide (D544) Ex.PW26/13, which as per the discussions made above was having signatures of A1. Now the history of this fictitious account can be traced back from the RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 146 of 158 147 Basant Lok Branch where also this account was opened by A1 in fictitious non existent name of the firm Kamal Kumar Ramesh Chand for money laundering exercise and to rotate the money in an illegal manner amongst different accounts of the bank. A2 in conspiracy with A1 had signed on four different instruments/cheques i.e. D547 Ex.PW26/14 as Kamal Kumar which signatures as per discussion made above, as per the testimony of the handwriting expert was positively found to be belonging to him. Similarly, he drew another self drawn cheque of Rs.4 Lakhs (D552) Ex.PW13/C, wherein he has also put his signatures as Kamal Kumar. As also (D551) Ex.PW26/17 where also he put his signatures as Kamal Kumar knowing full well that he was not the person and actually no such person exists by any such name and lastly, he also put signatures on the self cheque Ex.PW26/21 (D557) as Kamal Kumar knowing full well that he was not Kamal Kumar and there was no firm by the name of Kamal Kumar Ramesh Chander of which he was the partner yet, an amount of Rs.32 Lakhs was withdrawn through the above four self drawn cheques from the said fictitious account of Kamal Kumar Ramesh Chander, though knowing full well that there was no such firm in existence and A2 was also having complete RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 147 of 158 148 knowledge that he was not the Kamal Kumar of the said fictitious firm. Therefore, the conspiracy between A1 and A2 is clearly discernible or can be clearly inferred from these facts and circumstances and that all these instruments were withdrawn by A2 in conspiracy with A1 towards the common objective of the conspiracy, which they had hatched for defrauding the bank and for laundering their tainted money.
138. Regarding the conspiracy between A1 and A3, the same is also discernible from the specimen signature card/application form/account opening form in the name of Kamal Kumar Ramesh Chander Ex.PW26/13 on which the signatures of A3 were found to be positive as per the detailed discussion, as held in the report of the expert and as that of A1, whose signatures were also identified by other bank officials. Therefore, A3 (who was the employee of A2), was knowing full well that there was no firm by the name of Kamal Kumar Ramesh Chander nor he was the Ramesh Chander of the said firm, yet he represented himself to be Ramesh Chander to the bank with the intention to defraud the bank by dishonestly inducing them to open the account in the name of Kamlesh Kumar Ramesh Chander bearing SB A/c No.12367.
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139. Now, the question which further arises for consideration is that the conspiracy/agreement between A1, A2 and A3 was with regard to which offence(s). As already discussed above, there was an illegal agreement between A1, A2 and A3 to open a fake/fictitious account in the name of Kamal Kumar Ramesh Chander in the Mahipal Pur Branch, whereby A1 embarked upon rotating the money belonging to A2 of whom A3 was the employee and in this regard, A1 had indulged into financial jugglery by opening another account in the name of said fictitious firm Kamal Kumar Ramesh Chander in Basant Lok Branch, which account was opened on 12.04.96 with an amount of Rs.85 Lakhs generated through cash / FDRs in the name of fake persons, which was thereafter rotated into different accounts of Basant Lok Branch, wherefrom an amount of Rs.28,44,974/ was transferred to this account from the Basant Lok Branch by the same name vide transfer credit voucher dated 17.04.96, on which date itself, the said account was opened afresh at the Mahipal Pur Branch. Therefore, all of them were involved in deceiving or inducing or falsely representing the bank (which is also a person) for opening a fictitious account in the name of Kamal Kumar Ramesh Chander knowing full well that there was no firm in the said name which RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 149 of 158 150 belonged to A2 and A3, yet A1, who was the Bank Manager of both the branches Basant Lok and Mahipal Pur, whose duty was to protect the interest of the bank, in furtherance of his common objective with regard to the conspiracy got opened the said account under his signatures and verification. Therefore, he had the intention to cheat the bank. Section 420 IPC is clearly, made out in these circumstances. Since, A1 and A2 collaborated with each other and A3 signed on the said specimen card / account opening form as Ramesh Chander knowing full well that he was not such person or he was not the partner of any such firm in the name of Kamal Kumar Ramesh Chander, signed as such with the intention of causing it to be believed that the specimen signatures affixed thereon by him as Ramesh Chander had been affixed by him under the authority of such Ramesh Chander, which he knew was false.
140. Therefore, this act of A3 in conspiracy with A1, who verified those signatures and allowed to open the account amounted to making of false document(s) as defined u/S 464 IPC and A2 had thereafter in furtherance of the common object of conspiracy had signed four self cheques, whereby he withdrew Rs.32 Lakhs from the said account to which the money was also RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 150 of 158 151 channeled from two other accounts in the Mahipal Pur Branch and he on those self drawn cheques signed as Kamal Kumar knowing full well that he was not Kamal Kumar, yet he by signing so intentionally and dishonestly as well as fraudulently made the bank to believe that he was Kamal Kumar of Kamal Kumar Ramesh Chander firm to whom the SB A/c No.12367 belonged, thereby A2 had also the intention to cheat the bank as well as he had made false document(s) as defined u/S 464 IPC and cheques / instruments can be said to be valuable security, as on the basis of said valuable security, the bank was able to pay Rs.32 Lakhs to A 3, which would not have otherwise been paid, as the said cheques / instruments created rights and liabilities in favour of drawer of cheques and other persons.
Therefore, the said cheques/instruments are definitely valuable securities for the purposes of Section 467 IPC. The said cheques were also used for the purpose of cheating the bank, therefore the said forgery committed by A2 by signing as Kamal Kumar on the said four self cheques with the intention of causing it to believe that he was Kamal Kumar of the firm Kamal Kumar Ramesh Chander made the bank to believe that he was so, though knowing full well that he was not the Kamal Kumar nor he RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 151 of 158 152 had the authority to sign as Kamal Kumar. Therefore, Section 468 IPC is also made out, as the said forgery was committed for the purpose of cheating the bank. Since the said instruments/cheques were also used by A1, A2 and A3 during the banking transactions, as due to the forged signatures appearing on the specimen card, the four other instruments / cheques were also cleared based on the signatures appearing on the specimen card and the said four cheques were used to withdraw the money to the tune of Rs.32 Lakhs from the fictitious / fake account of Kamal Kumar Ramesh Chander, therefore the said instruments as well as specimen card was also used fraudulently and dishonestly by A1, A2 and A3 as a genuine documents / instruments, which all knew that they were forged, hence Section 471 IPC is also made out.
141. Regarding offence u/S 13(1)(d) PC Act, the prosecution has also been able to establish the same in view of the judgment of Hon'ble High Court of Delhi in Runu Ghosh Vs CBI Crl.A.482/2002, P.Rama Rao Vs CBI Crl.A.509/2002 and Sukh Ram Vs CBI Crl.A.536/2002 decided on 21.12.2011 that the misconduct of A1, who was a public servant holding public post resulted in A2 and A3 benefiting by getting a valuable thing or pecuniary advantage without any public interest and it is only RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 152 of 158 153 those acts done with complete and manifest disregard to the norms and manifestly injurious to public interest which is avoidable, but for the public servants overlooking or disregarding precautions and not heeding the safeguards he or she was expected to, which resulted in pecuniary advantage to another is prosecutable u/S 13(1)(d)(iii) PC Act.
142. In the present case, as already discussed above A1 flouted all established banking norms by opening fictitious bank account in the name of Kamal Kumar Ramesh Chander knowing full well that A2 and A3 were not partners of said firm nor they were Kamal Kumar or Ramesh Chander, yet he indulged in financial jugglery for laundering the funds of A3 by all sorts of banking transactions, thereby opening fake account under his supervision and channelizing funds into different accounts and thereafter allowed A2 and A3 to withdraw Rs.32 Lakhs from the said fictitious account, thereby aiding A2 and A3 in laundering their tainted money into the banking system to make it legitimate money. Therefore, in these circumstances, the prosecution has been able to establish offence u/S 13(1)(d)(iii) PC Act.
143. The net result of the aforesaid discussion is that prosecution has been able to make out offence u/S 120B IPC r/w RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 153 of 158 154 Sec.13(2) r/w Sec.13(1)(d) of PC Act and Section Sec.420/467/468 and 471 IPC against A2 and A3 (A1 since being dead cannot be convicted and sentenced). In these circumstances, A2 and A3 are held guilty for the offence(s) punishable u/S 120B IPC r/w Sec.13(2) r/w Sec.13(1)(d)(iii) of PC Act and Section Sec.420/467/468 and 471 IPC.
144. Regarding the substantive offence(s) u/S 420/467/468/471 IPC qua A2, as already discussed above A2 had got opened the said account in the name of Kamal Kumar Ramesh Chander bearing SB A/c no.12367 in the Mahipal Pur branch of OBC by deceiving or inducing or falsely representing the bank that he was one of the partner of Kamal Kumar Ramesh Chander, thereby making A3 to sign on the said specimen card / account opening form, as Ramesh Chander, therefore the intention to cheat the bank is clearly made out. Therefore, as a consequence offence U/S 420 IPC is clearly made out.
145. Regarding Section 467 IPC, as already discussed above, A2 had signed on four self cheques by which Rs.32 Lakhs were withdrawn knowing full well that he was not the Kamal Kumar, yet he signed on those cheques/instruments as Kamal Kumar thereby with the intention of causing the bank to believe RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 154 of 158 155 that such cheques were signed by Kamal Kumar or the authority of said Kamal Kumar, whom he knew never existed or was a fictitious person, yet he made those instruments in the name of Kamal Kumar and signed as such therefore the same clearly falls within the definition of Section 464 IPC and all the cheques / instruments are valuable securities as they create rights in favour of the person drawing the said instruments and also corresponding rights in the name of the person whom the said instrument is handed over. Therefore, it is valuable security as defined u/S 467 IPC and thereby committed forgery of the valuable security. As a consequence Sec.467 IPC is also made out. Since said forgery was committed for the purpose of cheating the bank, therefore Section 468 IPC is also made out and since the said cheques / instruments were used fraudulently or dishonestly as genuine by signing in the name of fictitious person, which A3 had the reason to believe that such person never existed. Therefore, the said instruments were forged, yet it was used to take out money of Rs.32 Lakhs from the bank. As a consequence offence u/S 471 IPC is also made out.
146. Regarding the substantive offence(s) u/S 467/471 IPC qua A3, similarly since A3 has signed on the specimen RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 155 of 158 156 card/account opening form as Ramesh Chander knowing full well that he was not Ramesh Chander with the intention of causing it to believe that such account opening form was made or signed by said Ramesh Chander knowing full well that he was having no authority to sign as such in the name of Ramesh Chander, yet made the bank to believe that he was Ramesh Chander of Kamal Kumar Ramesh Chander, thereby his act also falls under the definition of making of a false document U/S 464 IPC and though on the basis of this specimen card all the cheques were passed, as specimen card is the basic document which is resorted to by the bank every time, when a cheque is presented to them for comparing the signatures and only after comparing the signatures from the specimen card, the cheques are passed. But the same i.e. specimen card itself is not a valuable security as the same does not create or extinguish rights in favour of any person per se. Hence, offence u/S 467 IPC is not made out against A3.
147. However, minor offence u/S 468 IPC is clearly made out against A3, as in view of the above discussions, A3 prepared a false document as defined u/S 464 IPC with the intention of deceiving the bank, with the intention of causing the bank to believe that such account opening form was signed by Ramesh RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 156 of 158 157 Chander of firm Kamal Kumar Ramesh Chander knowing full well same was a non existent, fictitious firm, thereby said forgery was committed by A3 for cheating the bank. Even though only a substantive charge u/S 467 IPC has been framed against A3, yet even if an accused is charged of a major offence, but is not found guilty thereunder he can always be convicted of minor offence, if the facts established indicates that such minor offence has been committed, in view of Section 222 Cr.P.C and as held in judgment State of Himachal Pradesh Vs Tara Datta AIR 2000 SC 297. Since Section 468 IPC can be said to be minor offence of Section 467 IPC for which substantive charge was framed against A3, therefore he can always be convicted u/S 468 IPC.
148. Since said specimen card was used during the bank transactions for clearing the four cheques/ instruments by virtue of which A2 withdrew Rs.32 Lakhs from the fictitious account of Kamal Kumar Ramesh Chander bearing account no.12367 at Mahipal Pur Branch, OBC and A3 knew that he was not Ramesh Chander, yet he fraudulently or dishonestly allowed the said specimen card to be used as genuine, thereby signing thereon as Ramesh Chander knowing full well that the same was forged and he was not Ramesh Chander of any firm Kamlesh Kumar Ramesh RC NO.4(E)/1998 CBI Vs S.K.Arora & Ors. 157 of 158 158 Chander and he was only an employee of A2, knowing the said instrument was forged. As a consequence offence u/S 471 IPC is made out against A3.
149. In view of the above discussions, Ashok Mehra (A2) and Padam Kumar (A3) are held guilty for the offence(s) punishable u/S 120B IPC r/w Sec.13(2) r/w Sec.13(1)(d)(iii) of PC Act and Sec.420/467/468 and 471 IPC. A2 is also held guilty for the substantive offence(s) punishable u/S 420/467/468/471 IPC. A3 is also held guilty for the substantive offence(s) punishable u/S 468/471 IPC.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 03.01.2017 Special Judge,
CBI03 (PC Act)
Delhi/03.01.2017
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