Delhi District Court
Has Relied Upon A Subair vs . State Of Kerala, Jt 2009 (8) Sc 415 To ... on 5 November, 2014
IN THE COURT OF SH. RAKESH SYAL, SPECIAL JUDGE, (PC ACT) & (CBI)-03,
SOUTH WEST DISTRICT, DWARKA, NEW DELHI
CBI Case No. 26/12
RC No. 7(E)/2004/EOW-I/DLI
In re:
Central Bureau of Investigation
Vs.
1. S. Swarn Singh,
S/o Late S. Sant Singh,
R/o EC-188, Maya Enclave,
Hari Nagar, New Delhi.
2. Late Sh. Jitender Singh Bedi,
S/o Sh. Mulk Raj Singh Bedi,
R/o 188/1, Sector - 45 A,
Chandigarh.
(Proceedings abated)
3. Yashpal Arora,
S/o Late Sh. Ram Swaroop Arora,
R/o 57/9, Ratan Garden,
Gurgaon, Haryana.
4. Smt. Saroj Arora,
W/o Sh. Yashpal Arora,
R/o 57/9, Ratan Garden,
Gurgaon, Haryana.
5. Deepak Arora,
S/o Sh. Ram Swaroop Arora,
R/o A/71, Ramesh Nagar,
New Delhi.
(Proclaimed offender)
Date of Institution of Case : 28-04-2005
Date on which Judgment reserved : 28-10-2014
Date on which Judgment delivered : 05-11-2014
C.C. No. 26/12 05-11-2014 1 of 128
JUDGMENT
Facts 1.1 This case was registered on 31-03-2004 on a source information alleging that accused No. 2, Late Sh. Jitender Singh Bedi, Sr. Manager, Punjab and Sind Bank (hereinafter referred to as P & S B), Zonal Inspectorate, Sector 17-B, Chandigarh, R/o 188/1, Sector-45-A, Chandigarh, during the year 2001-2002, while posted as Branch Manager, P & S B, Rajouri Garden Branch, New Delhi entered into a criminal conspiracy with accused No. 1, Swarn Singh, General Manager, P & S B, Zonal Office, New Delhi, accused No. 3, Yashpal Arora and accused No. 4, Smt. Saroj Arora, Directors of M/s Z.Z. Zippers (P) Ltd., B-198, Mansarowar Garden, New Delhi and others. In pursuance of the said criminal conspiracy, they fraudulently and dishonestly cheated P & S B, Rajouri Garden Branch, New Delhi by obtaining various credit facilities of Rs. 33 lacs (approx.) on the basis of a forged conveyance deed of property No. 107, Roz-Ka-Meo, Industrial Area, Sohna, District Gurgaon and other documents and concealment of certain material informations.
1.2 Investigation revealed that on 03-11-2001, a Current A/c No. 4149 was opened at Rajouri Garden branch of the bank, in the name of M/s Z.Z. Zippers (P) Ltd., B-198, Mansarowar Garden, New Delhi-15, with factory at 107, Roz-Ka-Meo, Industrial Area, Sohna, District Gurgaon (Haryana). The account was authorised to be operated by Yashpal Arora and Smt. Saroj Arora, Directors of M/s Z.Z. Zippers (P) Ltd. It was introduced by Sh. Rajendra Sabbarwal, Prop. of M/s Shubh Times, which was maintaining Current Account No. 4106 in the said Bank. Apart from other documents, the party submitted an affidavit signed by Yashpal Arora stating that he was a Director of M/s Z.Z. Zippers (P) Ltd. and C.C. No. 26/12 05-11-2014 2 of 128 that the company was not enjoying any credit facility with any other bank or any other branch of P & S B. 1.3 On 17-10-2001, M/s Z.Z. Zippers (P) Ltd. requested for term loan facility of Rs. 13.22 lacs and bank guarantee facility for Rs. 35 lacs. The request letter was signed by accused No. 3, Yashpal Arora. It was also mentioned in the letter that company had not taken any facility from any other bank or financial institution. Accused No. 2, J.S. Bedi, Branch Manager recommended and forwarded the complete loan proposal to Zonal Office, New Delhi vide his letter dated 25-10-2001 without conducting any verification regarding the genuineness of the information/financial data submitted by the party. The party, along with their request, inter-alia, submitted a copy of the conveyance deed in respect of property at 107, Roz-Ka-Meo, Industrial Area, Sohna, Legal Opinion and title verification report dated 23-10-2001, in respect of the above property, by Sh. Arun Duggal, Advocate, Valuation Report, dated 20-10-2001 of the above property by Sh. V.P. Aneja Chartered Engineer, Quotation dated 07-01-2001 of M/s Prince Generators for the generator to be purchased out of the loan applied for, Audited Balance sheets of the company for the years ending 31-03-1999, 31-03-2000 and 31-03-2001, Attestation dated 22-10-2001of signatures of both the Directors by Branch Manager, Central Bank of India, Gurgaon, and Loan application on Form No. 30 (revised) of the bank.
1.4 The Zonal Office, vide its letter dated 31-10-2001, raised some queries and sought more documents. The branch, vide letter dated 05-11-2001, inter-alia, sent permission letter dated 30-10-2001 from HUDA Gurgaon for mortgage of property at 107, Roz-Ka-Meo, Industrial Area, Gurgaon and C.C. No. 26/12 05-11-2014 3 of 128 assets and liabilities statements of Sh. Sanjay Verma, Guarantor in the case.
1.5 Further, on the request of the party, the Branch Manager vide letter dated 15-11-2001, recommended the sanction of cash Credit Limit of Rs. 35 lacs in place of Bank Guarantee Limit and sent certain documents.
1.6 In Zonal Office, on 22-11-2001, an appraisal note was prepared by Sh. Shailender Chawla, Manager and put up to Sh. Sukhwant Singh, DGM, through Sh. J.B.S. Bedi, AGM. Sh. Sukhwant Singh, DGM sanctioned the same. The sanction order, incorporating all the terms and conditions, was signed by Sh. J.B.S. Bedi, AGM on 01-12-2001.
1.7 Investigation further revealed that Sh. J.S. Bedi had telephonically informed Sh. Shailendra Chawla regarding the involvement of brother and sister in law of Yashpal Arora in another matter in P & S B, H-Block, Connaught Place Branch. Sh. Shailendra Chawala, Manager (Credit) put up a note dated 19-12-2001 stating the above fact and informing that the Branch Manager has been advised on phone not to release the loan and title deeds of property handed over by M/s Z.Z. Zippers (P) Ltd. and that they may write accordingly to the Branch Manager. This note was seen and signed by accused No. 1, Swarn Singh, G.M. on 26-12-2001. The decision was communicated to the Branch Manager vide letter dated 26-12-2001.
1.8 On 27-12-2001, the Branch Manager wrote to the Zonal Office while referring to a letter by the company undertaking to provide another collateral security worth Rs. 17 lacs within 3 months and a request to amend the sanction C.C. No. 26/12 05-11-2014 4 of 128 accordingly. On 31-12-2001, the Branch Manager again wrote to the Zonal Office that accused No. 3, Yashpal Arora, had assured him of liquidating the account of M/s Pinki Zips and of arranging meeting of accused No. 5, Deepak Arora with the Branch Manager. He recommended that the Branch be allowed to release the limits to the party as per the terms of the sanction so that the quota may not expire.
1.9 Accused No. 2, Sh. J.S. Bedi, Branch Manager in furtherance of criminal conspiracy dishonestly and fraudulently released the limits on 03-01-2002. He sent a letter dated 03-01-2002, addressed to accused No. 1, Swarn Singh, G.M. stating that he had disbursed the limits as per his (GM's) approval. He also sent a letter on 03-01-2002 to Zonal Manager informing about his having allowed credit facility to the party and seeking confirmation of his action. This letter however was received in the Zonal Office on 18-05-2002. Various loan documents were executed on 03-01-2002 by accused No. 3, Yashpal Arora and accused No. 4, Smt. Saroj Arora.
1.10 It is further alleged that a Loan Committee meeting was held on 16-01-2002 in the Chamber of General Manager (Zonal Office, Delhi) which was attended by accused No. 1, Swarn Singh, GM, Sh. Sukhwant Singh, DGM, Sh. Subhash Aggarwal, Sr. Manager, Sh. R.S. Saini, Sh. Shailendra Chawla, Sh. Inderjit Chawla, Sh. Rajesh Malhotra, Managers (Credit) and Sh. C.S. Sobti, Officer (Credit). The committee, vide its agenda item No. 24, confirmed the action of the Branch Manager, regarding release of the limits sanctioned. Accused No. 1, Swarn Singh, G.M. did not sign the minutes of the Loan Committee though he had presided the meeting. Accused No. 1, Swarn Singh, C.C. No. 26/12 05-11-2014 5 of 128 dishonestly and fraudulently got confirmed the action of the Branch Manager, Sh. J.S. Bedi from the Loan Committee Meeting held on 16-01-2002, knowing fully well that credit facility earlier sanctioned to M/s Z.Z. Zippers (P) Ltd. had already been cancelled.
1.11 A search Report dated 29-01-2004 of ROC submitted by Sh. Jagjit Singh, CA of P & S B confirmed that accused No. 3, Yashpal Arora had availed certain credit facilities from certain other banks including Oriental Bank of Commerce (OBC) and had mortgaged the title deed of property No. 107, Roz- Ka-Meo, Industrial Area, Sohna, Gurgaon, the same property as in this case, in the other bank also.
1.12 Accused No. 3, Yashpal Arora had submitted original conveyance deed of property No. 107, Roz-Ka-Meo, Industrial Area, Sohna, Gurgaon as a security with OBC, Sohna for obtaining various credit facilities. As he had not repaid the loan, OBC, Sohna had filed a suit in DRT, Chandigarh and procured a decree for the auction of property No. 107, Roz-Ka-Meo, Industrial Area, Sohna, District Gurgaon, in favour of OBC, Sohna. The conveyance deed submitted by accused No. 3, Yashpal Arora is thus a forged conveyance deed.
1.13 Accused No. 3, Yashpal Arora had, inter-alia, given an affidavit stating that there was no lien, no dispute, no mortgage, no gift and no litigation on the said factory premises. He submitted another affidavit informing that the company was not enjoying any credit facility with any other Bank or any other Branch of Punjab and Sind Bank. Both these affidavits were incorrect.
C.C. No. 26/12 05-11-2014 6 of 128 1.14 Sh. Sanjay Verma, the guarantor as per the loan agreement of M/s
Z.Z. Zippers (P) Ltd., had given an affidavit that he would stand guarantee for M/s Z.Z. Zippers (P) Ltd. However, photograph of one Sh. Vinod Sabbarwal S/o Late Sai Dass R/o BG-6/212-B, Paschim Vihar, New Delhi was affixed as Sanjay Verma on the Assets and Liability form dated 23-10-2001.
1.15 Accused No. 3, Yashpal Arora had submitted a letter purportedly attested/signed by the Branch Manager, Central Bank of India, Gurgaon on 22-10-2001 attesting the signatures of accused No. 3, Yashpal Arora and accused No. 4, Smt. Saroj Arora, Directors of M/s Z.Z. Zippers (P) Ltd. and also stating that they (M/s Z.Z. Zippers (P) Ltd.) were not having any liability in the said Bank and account No. 2027 was satisfactory. Though they had an account in the said Branch, no such attestation/certificate was issued by the then Branch Manager of Central Bank of India, Gurgaon.
1.16 Further, accused No. 3, Yashpal Arora and accused No. 4, Smt. Saroj Arora had submitted Auditors Reports and Balance Sheets of the Company for the last three years purportedly signed by Sh. N.K. Kapoor of M/s Kapoor Banga and Company, Chartered Accountants. Though, there is a Chartered Accountant firm by the name of M/s Kapoor Banga and Company but it never had a partner by the name of N.K. Kapoor. Thus, the audited balance sheets submitted by accused No. 3, Yashpal Arora were fake/forged.
1.17 Accused No. 3, Yashpal Arora had made a request to P & S B, Rajouri Garden Branch, New Delhi to change the Bank Guarantee limit to CC Limit on the ground that they would be saving 2% commission on the Bank C.C. No. 26/12 05-11-2014 7 of 128 Guarantee in case the CC Limit is sanctioned for procurement of the raw material against cash instead of Bank Guarantee to National Small Industries Corporation (NSIC). However, most of the cheques of advances sanctioned to accused No. 3, Yashpal Arora by P & S B were deposited through cheques in the account of New Scientific Industrial Chemicals (NSIC), Gurgaon.
1.18 Investigation further revealed that National Small Scale Industries Corporation, Govt. of India undertaking does not have any Bank account in Gurgaon and it had no business relations with M/s Z.Z. Zippers Pvt. Ltd. On the other hand accused No. 3, Yashpal Arora had opened an account No. 573 in the name of New Scientific Industrial Chemicals in The Federal Bank Ltd., Gurgaon as sole proprietor. The cheques favouring NSIC, Gurgaon were credited in the said account. The entire amount was withdrawn from the said account of NSIC in The Federal Bank Ltd. by 15 cheques, favouring self by accused No. 3, Yashpal Arora.
1.19 Investigation further revealed that a quotation and a proforma invoice both dated 07-01-2002 of M/s Prince Generators were submitted by accused No. 3, Yashpal Arora to the Bank. The address of M/s Prince Generators mentioned in the quotation and proforma invoice i.e. M/s Prince Generators, MS-11-12, Hari Nagar, Main Mayapuri Road, Phase-II, New Delhi was found to be wrong. The correct address of M/s Prince Generators is D-5, Mayapuri, Industrial Area, Phase-II, New Delhi-64 and its owner is Sh. Baldev Singh S/o Sh. Balvinder Singh. There is also a company by the name of New Price Generators at MS-11-12, Hari Nagar, Main Mayapuri Road, Phase-II, New Delhi whose owner is Sh. Jagmohan Singh. Sh. Baldev Singh is nephew of Sh.
C.C. No. 26/12 05-11-2014 8 of 128 Jagmohan Singh. 1.20 Quotation and proforma invoice submitted on the letterhead of M/s
Prince Generators is signed by one Sh. Amit Kumar as Prop. Both the above persons stated that no person by the name of Sh. Amit Kumar was working in their firms. Though both of them knew accused No. 3, Yashpal Arora because he had purchased one generator each from them earlier, but they stated that they had never issued the said quotation and proforma invoice for generator either to M/s Z.Z. Zippers Pvt. Ltd. or to accused No. 3, Yashpal Arora.
1.21 Further, accused No. 3, Yashpal Arora, in connivance with the Branch Manager, J.S. Bedi personally received a Manager's Cheque/Pay Order No. 997627 dated 21-01-2002 for Rs. 4,56,500/-, issued in favour of M/s Prince Generator by P & S B, Rajouri Garden, New Delhi.
1.22 Accused No. 3, Yashpal Arora, in furtherance of criminal conspiracy, opened Current Account No. 0912000010226 in the name of M/s Prince Generators in HDFC Bank, West Punjabi Bagh, New Delhi on 22-01-2002 as the sole proprietor and deposited the above Manager's Cheque in that account. This account was introduced by accused No. 5, Deepak Arora who was having his account No. 0911000126891 in the said Bank. Later, accused Yashpal Arora withdrew the above amount through self cheques.
1.23 Sh. Vinod Sabharwal whose photograph was affixed as a guarantor in the loan documents has categorically stated that accused Yashpal Arora and Deepak Arora took him to Rajouri Garden in their car and he was shown to one C.C. No. 26/12 05-11-2014 9 of 128 person for their identification before him.
1.24 It is thus alleged that the above named accused persons have committed offences u/s 120-B r/w sections 420, 467, 468, 471 IPC r/w section 13 (2) r/w section 13 (1) (d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act) and various substantive offences as above. On completion of investigation, chargesheet was filed in the court.
1.25 It is pertinent to mention that accused No. 5, Deepak Arora had absconded during investigation. He was declared proclaimed offender vide order dated 05-07-2006.
2.1 Copies in terms of Section 207 Cr.P.C. were supplied to the remaining accused persons.
Charges 3.1 Initially, vide order dated 17-11-2006, charges were ordered to be framed against all the accused persons. Same were framed accordingly on 01-12-2006 as under:-
a) against all the accused persons, u/s 120-B IPC, and u/s 120-B read with sections 420, 467, 468 & 471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act,
b) against accused No. 1, S. Swarn Singh u/s 13 (2) r/w section 13 (1) (d) of the PC Act,
c) against accused No. 2, Jitender Singh Bedi u/s 13 (2) r/w section 13 (1) (d) of the PC Act, C.C. No. 26/12 05-11-2014 10 of 128
d) against accused No. 3, Yashpal Arora under Sections 420, 467, 468 & 471 IPC,
e) against accused No. 4, Smt. Saroj Arora under Sections 420, 467, 468 & 471 IPC The accused persons pleaded not guilty to the charges and claimed trial.
3.2 Order dated 17-11-2006 was challenged by accused No. 1, Swarn Singh in the Hon'ble High Court. Vide order dated 23-02-2007, the Hon'ble High Court directed to consider the question of charges so far as accused No. 1, Swarn Singh was concerned and issue appropriate order in accordance with law after granting hearing to him. Fresh arguments were heard and vide order dated 28-03-2007, charges were again ordered to be framed. Charges as at serial No.
(a) and (b) above were again framed on 04-04-2007, to which accused persons pleaded not guilty and claimed trial.
3.3 During the trial, accused No. 2, Jitender Singh Bedi expired and proceedings against him abated on 13-08-2009.
Prosecution Evidence 4.1 In order to prove its case, prosecution has examined 46 witnesses. PW 18 Sh. Gurnam Singh, Officer, PW 25 Sh. Jasminder Pal Singh, Officer and PW 24 Sh. Kapil Dev Sharma, Manager were posted at P & S B, Rajouri Garden Branch, New Delhi. PW 30 Sh. Pradeep Singh Sikka was posted as Sr. Manager/Branch Incharge of P & S B, Rajouri Garden from November 2003 onwards. PW 22 Sh. Shailendra Chawla, Manager (Loans), PW 45 Sh.
Sukhwant Singh, Deputy General Manager, PW 20 Sh. Inderjeet Chawla, C.C. No. 26/12 05-11-2014 11 of 128
Manager, PW 15 Sh. Rajesh Malhotra, Manager, PW 41 Sh. Randhir Singh Saini, Manager, PW 42 Sh. Subhash Aggarwal, Sr. Manager and PW 31 Sh. Charan Pal Singh Sobti, Officer were posted in Zonal Office, P & S B, New Delhi. PW 37 Sh. Gurinder Singh Sethi was posted as Sr. Manager in CMD Secretariat, Head Office, P & S B, New Delhi. PW 32 Sh. Kulwinder Singh was posted as Manager (Vigilance), P & S B, Zonal Office. The above witnesses have deposed about the submission of loan proposal, its processing, sanction and various communications between the Branch and the Zonal Office.
4.2 PW 1 Sh. Sushil Kumar has introduced the account of New Scientific Industrial Chemicals at Federal Bank, Gurgaon. PW 2 Sh. Baldev Singh is owner of M/s Prince Generators, D-5, Mayapuri Industrial Area, Phase- II, Delhi and PW 4 Sh. Jagmohan Singh is the owner of New Prince Generators at MS-11-12, Hari Nagar, Main Mayapuri Road, Phase-II, New Delhi. PW 6 Sh. Sanjay Verma is doing business of jewellery at Subji Mandi. PW 8 Sh. Om Prakash Saluja, Chartered Accountant is Proprietor of Kapoor Banga & Company. PW 13 Sh. Rahul Arora is the son of accused No. 3, Yashpal Arora and accused No. 4, Smt. Saroj Arora. PW 14 Sh. Raj Kumar is brother of accused No. 4, Smt. Saroj Arora. PW 16 Sh. Rajender Sabbarwal has introduced the account of M/s Z.Z. Zippers Pvt. Ltd. at P & S B, Rajouri Garden, New Delhi. PW 28 Sh. Bhagwant Singh is a partner of M/s Modern Oil Expeller & Filter Press Industries, Patel Marg, Ghaziabad. PW 33 Sh. Vinod Sabbarwal was the neighbour of accused No. 3, Yashpal Arora. PW 44 Sh. Dinesh Jain was dealing in Pathological Diagnostics Business in the name of Health Post.
4.3 PW 7 Sh. Prakash Chand Indora is the Manager, Central Bank of C.C. No. 26/12 05-11-2014 12 of 128
India, Gurgaon. PW 39 Sh. Munna Lal Singh was Sr. Manager, Central Bank of India, Gurgaon. PW 43 Sh. S.K. Bhasin was posted as Sr. Manager, Central Bank of India, Gurgaon. PW 19 Sh. K.S. Rohilla was posted in Oriental Bank of Commerce, Sohna, Gurgaon. PW 23 Sh. Ishwar Chand Vij was Officer in Federal Bank, Gurgaon and PW 40 Sh. Rakesh Verma was posted as Special Assistant in Federal Bank, Civil Lines, Gurgaon. PW 35 Sh. Ritesh Bhatnagar was working as Sr. Officer in ICICI Bank, Sector - 14, Gurgaon. PW 29 Sh. A.K. Mittal was functioning as Chief Vigilance Officer, National Small Industries Corporation.
4.4 PW 3 Sh. Virender Singh was Assistant in Haryana Urban Development Authority, Gurgaon. PW 5 Sh. Sanjay Joon was Estate Officer, HUDA, Gurgaon. PW 10 Sh. Satish Kumar was Clerk in Estate Office, HUDA, Gurgaon. PW 36 Sh. Charan Singh was Assistant, SE, HUDA Circle, Gurgaon. PW 9 Sh. Mohd. Ishaq was posted as Naib Tehsildar, Nuh, Gurgaon. PW 34 Sh. Dharamveer Singh was Reader to Tehsildar, Nuh.
4.5 PW 11 Sh. Jagjeet Singh is a Chartered Accountant practicing in the name of Jagjeet Singh & Company. PW 12 Sh. Prithi Pal Singh Madan had been working as Chartered Engineer and Valuer under the name and style of M/s PPS Madan. PW 17 Sh. Anuj Kumar Beotra was working with Sh. V.P. Aneja, Govt. Approved Valuer. PW 21 Sh. Arun Duggal, Advocate and PW 26 Sh. Sanjeev Kumar Gupta, Advocate were on the panel of P & S B. 4.6 Sh. T. Joshi is the Assistant GEQD and PW 46 Sh. R.P. Kaushal is the IO.
C.C. No. 26/12 05-11-2014 13 of 128 Statement of Accused Persons 5.1 Statements of all the accused persons were recorded u/s 313
Cr.P.C., wherein they generally denied the incriminating evidence and stated that they had been falsely implicated in this case.
5.2 Accused No. 1, S. Swarn Singh further stated that he was neither the sanctioning authority nor he sanctioned any loan / limit to M/s Z.Z. Zippers. He never participated at any stage of sanction of the loan as it was within the power of DGM. Neither bank's rules permit oral permission for release of loan / limit nor he permitted the same. No letter in this respect was put up to him. He was shifted to Head Office, Advances Department w.e.f. 03-01-2002. He was not aware how and when this loan was disbursed. The documents are one sided and had not been dispatched from one office to another office as no dispatch number was given on the said letters. The bank witnesses were prejudiced as they had appraised/ sanctioned the loan. The minutes had been changed. The investigation was not conducted properly, thoroughly and fairly.
5.3 Accused No. 3, Yashpal Arora further stated that Sh. Deepak Arora, Sh. Ashok Chaudhary and Sh. B.P. Baranwal were handling the affairs of the company. He does not know about the dealings of the aforesaid persons with the bank. Sh. Deepak Arora had also taken his and his wife's photographs. Sh. Deepak Arora used to cheat the family members as well as relatives. He was involved in number of cases like the present case. The Investigating Officer has not conducted the investigation in a fair manner and has filed a false report/challan. He further stated that he had never visited any office/bank or C.C. No. 26/12 05-11-2014 14 of 128 dealt with the day to day affairs of M/s Z.Z. Zippers Pvt. Ltd. His signatures were obtained on blank papers, letterhead of the company, stamp papers, blank cheques and blank forms by his brother Sh. Deepak Arora, Sh. B.P. Baranwal and Sh. Ashok Chaudhary. He is a victim of circumstances as his brother Sh. Deepak Arora used to cheat relatives like him, his wife, his father in law, mother in law, brother in law and sister in law as well as his 'Samdhi/Samdhan'. Court cases are pending against the above persons because of Sh. Deepak Arora. Various FIRs have been registered against Sh. Deepak Arora during the period 1996 to 2006.
5.4 Accused No. 4, Saroj Arora further stated that she is a housewife. She had never visited any office/bank or dealt with the day to day affairs of the company at all. Her signatures were obtained on blank papers, letterheads as well as cheques by her brother in law Sh. Deepak Arora. She is a victim of circumstances as her brother in law Sh. Deepak Arora used to cheat relatives like her, his brother, his father in law, mother in law, brother in law and sister in law as well as his 'Samdhi' and 'Samdhan'. Various court cases are pending against the above persons because of Deepak Arora.
Defence evidence 6.1 Accused No. 1, S. Swarn Singh has examined one witness in his defence namely DW 1 Sh. Mahender Singh from P & S B. Accused No. 3, Yash Pal Arora himself appeared as a witness as DW 2 under Section 315 Cr.P.C. read with Section 21 of the P.C. Act, on his behalf as well as on behalf of accused No. 4, Saroj Arora. He mainly stated that his signatures and signatures of his wife on various documents were obtained by his brother, Deepak Arora.
C.C. No. 26/12 05-11-2014 15 of 128 Arguments on behalf of CBI. 7.1 Sh. Manoj Shukla, Ld. P.P. has argued that various officers of P & S
B, viz. PW15, Sh. Rajesh Malhotra, PW 18 Sh. Gurnam Singh, PW 20 Sh. Inderjeet Chawla, PW 22 Sh. Shailender Chawla, PW 24 Sh. Kapil Dev Sharma, PW 25 Sh. Jasminder Pal Singh, PW 30 Sh. Pardeep Singh Sikka, PW 31 Sh. Charan Pal Singh Sobti, PW 37 Sh. Gurinder Singh Sethi, PW 41 Sh. Randhir Singh Saini, PW 42 Sh. Subhash Aggarwal and PW 45 Sh. Sukhwant Singh have proved the application for loan by M/s Z.Z. Zippers Pvt. Ltd., of which, accused No. 3, Yashpal Arora and accused No. 4, Saroj Aroa were the Directors, to Punjab & Sind Bank, Rajouri Garden Branch, New Delhi, submission of forged documents i.e. forged conveyance deed, of property No. 107, Roz-Ka-Meo Industrial Area, Sohna, District Gurgaon, forged quotation of M/s Prince Generators, forged audited balance sheet of the company for the period ending 31-01-1999, 31-03-2000 and 31-03-2001, forged attestation dated 22-10-2001 of signatures of both Directors by the Branch Manager, Central Bank of India, Gurgaon, forged letter dated 30-10-2001 in respect of forged conveyance deed issued by HUDA, Gurgaon and forged assets and liability statement of guarantor Sanjay Verma, sanction of the credit facilities to the tune of Rs. 13,00,000/- as term loan and CC Limit of Rs. 35,00,000/-, and accused No. 1, S. Swarn Singh allowing accused No. 2, Jitender Singh Bedi to disburse the credit facilities to M/s Z.Z. Zippers Pvt. Ltd.
7.2 PW 2, Sh. Baldev Singh and PW 4, Sh. Jagmohan Singh have proved that proforma invoice dated 07-01-2002, Ex. PW 2/1 and letter dated 07-01-2002, Ex. PW2/2 of Prince Generators in favour of M/s Z.Z. Zippers Pvt.
C.C. No. 26/12 05-11-2014 16 of 128 Ltd. were forged. PW 6, Sh. Sanjay Verma and PW 33 Sh. Vinod Sabharwal have proved that the assets & liability form, Ex.PW27/A-124 was forged. PW 8, Sh. Om Parkash Saluja has proved that the firm Kapoor Banga & Co. has never done any professional work for M/s Z.Z. Zippers Pvt. Ltd. and that they had not prepared auditor's report for M/s Z.Z. Zippers Pvt. Ltd. PW 16 Sh. Rajinder Sabbarwal has introduced current account No. 4149 of M/s Z.Z. Zippers Pvt. Ltd.
7.3 It is also argued that PW 7, Sh. Prakash Chand Indora, Manager, Central Bank of India, Gurgaon, PW 39 Sh. Munna Lal Singh, Branch Manager, and PW 43 Sh. S.K. Bhasin, Sr. Manager have proved that letters dated 18-10-2001 and 19-08-2001, Ex.PW7/1 and Ex. PW7/2 respectively of M/s Z.Z. Zippers Pvt. Ltd. bear forged endorsements. PW 19 Sh. K.S. Rohilla, Oriental Bank of Commerce, Sohna, Gurgaon has proved the CC Account of M/s Z.Z. Zippers Pvt. Ltd., wherein conveyance deed, Ex.PW19/B and receipt Ex.PW19/C were taken as security for the loan, and the seizure memo, dated 27-09-2004, Ex.PW19/A vide which he has handed over conveyance deed, EXPW19/B of M/s Z.Z. Zippers Pvt. Ltd. to CBI. PW 23 Sh. Ishwar Chander Vij, Officer, Federal Bank, Gurgaon, PW 40 Sh. Rakesh Verma, Special Assistant, Federal Bank, Gurgaon and PW 1 Sh. Sushil Kumar have proved current account No. 573, vide Account Opening Form, Ex. PW1/1 in the name of New Scientific Industrial Chemicals, under sole proprietorship of accused No. 3, Yashpal Arora and sending the documents pertaining to the said account to the CBI vide letter dated 20-01-2005, Ex.PW23/A. PW 35 Sh. Ritesh Bhatnagar, Sr. Officer, in ICICI Bank, Sector-14, Gurgaon has proved account No. 01/3797 in the name of Sh. Raj Kumar in their bank, transactions made in the said account and letters dated 06-01-2005, Ex.PW35/A and dated 17-03-2005, Ex.PW35/B, C.C. No. 26/12 05-11-2014 17 of 128 written to the CBI. Ld. P.P. further submits that PW 29 Sh. A.K. Mittal, Chief Vigilance Officer, National Small Industries Corporation Ltd. has proved that during the period 31-12-2001 to 12-02-2002, M/s Z.Z. Zippers Pvt. Ltd. did not have any transaction with NSIC Ltd.
7.4 Ld. P.P. also contends that PW 3 Sh. Virender Singh from the office of Estate Officer, HUDA, Gurgaon has proved that the letter dated 30-10-2001, signed on 31-10-2001 was forged and that letter dated 22-04-1998 issued in favour of M/s Z.Z. Zippers Pvt. Ltd. was issued from their office. PW 5 Sh. Sanjay Joon, Estate Officer, HUDA, Gurgaon, PW 10 Sh. Satish Kumar, Clerk, PW 36 Sh. Charan Singh, Assistant, PW 9 Sh. Mohd. Ishaq, Naib Tehsildar, Nuh and PW 34 Sh. Dharamveer, Reader to Tehsildar have proved that conveyance deed, dated 05-03-1998, Ex.PW5/1 was genuine and that conveyance deed, dated 05-03-1998, Ex.PW5/2 (also Ex.PW27/A-43 to Ex.PW27/A-48) was forged.
7.5 Ld. P.P. also argued that PW 27 Sh. T. Joshi, Assistant GEQD, CFSL, Chandigarh has proved his report, dated 14-03-2005, Ex.PW27/F (colly) and the Reasons, dated 24-03-2005, Ex.PW27/G and PW 46 Sh. R.P. Kaushal has proved the investigation conducted by him regarding seizure of documents, examination of witnesses etc. Ld. P.P. thus argues that prosecution has been able to prove its case against the accused persons beyond a reasonable doubt.
Arguments on behalf of Accused No. 1, Swarn Singh 8.1 Sh. Bhavook Chauhan, Ld. counsel for accused No. 1, Swarn Singh has argued that it is not the case of prosecution that accused No. 1, Swarn C.C. No. 26/12 05-11-2014 18 of 128 Singh had obtained any valuable thing or pecuniary advantage for himself. He has relied upon A Subair vs. State of Kerala, JT 2009 (8) SC 415 to argue that primary requisite of an offence u/s 13 1 (d) of the PC Act is proof of a demand for a valuable thing or pecuniary advantage from the public servant. Further, there is no evidence to show that accused No. 1, Swarn Singh had entered into any criminal conspiracy with any other accused. It is also not the case of prosecution that when term loan and credit facilities were sanctioned by the Zonal Office on 29-11-2001, the alleged illegalities committed by accused No. 3 Yashpal Arora and accused No. 4, Saroj Arora were in the knowledge of accused No. 1, Swarn Singh. There is also nothing on record to show that accused No.1, Swarn Singh had orally allowed accused No. 2, Jitender Singh Bedi to disburse the loan amount to M/s Z.Z. Zippers Pvt. Ltd.
8.2 Ld. counsel has further argued that as per minutes of the meeting, dated 16-01-2002 of the Loan Committee, Ex.PW15/A, the decision to confirm the branch manager's action was a collective decision of all the members of the Loan Committee. It is not the case of the prosecution that the decision taken on 16-01-2002 by the Loan Committee was an independent view of accused No. 1, Swarn Singh or that any member of the committee disagreed with the decision. The prosecution has proceeded against accused No. 1, Swarn Singh in a pick and choose manner. He has relied upon State of M.P. vs. Sheetla Sahai, (2009) 8 SCC 617 to argue that for a collective decision taken in the exigency of the situation, one person cannot be held liable even though there is an error of judgment in such decision.
8.3 Ld. counsel has also argued that accused No. 1, Swarn Singh had C.C. No. 26/12 05-11-2014 19 of 128
no role in sanctioning the credit facilities. The sanction, cancellation and re- sanction of the loan was within the powers of Sh. Sukhwant Singh, DGM and accused No. 1, Swarn Singh sanctioned only those loans which were beyond the powers of DGM. He also argued that statements of PW 45 Sh. Sukhwant Singh and PW 22 Sh. Shailender Chawla to the effect that sanction could be given only after approval of the Loan Committee, are false as the minutes of meeting dated 16-11-2001 have not been placed on record to show that accused No. 1, Swarn Singh attended the same. There is no evidence that accused No. 1, Swarn Singh participated in the meeting dated 16-11-2001. The notings dated 22-11-2001 and 29-11-2001 of PW 22 Sh. Shailender Chawla were never put up before accused No. 1 Swarn Singh.
8.4 Ld. counsel further argues that the loan was cancelled by PW 45 Sh. Sukhwant Singh, DGM vide letter dated 26-12-2001, Ex.PW30/H. However, there is no evidence to show that the said letter was dispatched from the Zonal Office or that it reached the Branch Office. The same is clear from the testimonies of PW 32 Sh. Kulwinder Singh, PW 24 Sh. Kapil Dev Sharma, PW 42 Sh Subahsh Aggarwal and PW 45 Sh. Sukhwant Singh as also from the reply dated 13-02-2012, Ex. DW1/D (Colly) received from CPIO under the RTI Act, 2005. On the contrary, the Branch Manager kept on writing letters to the Zonal Office for modification of the loan sanctioned but he never requested for restoration of the original sanction of loan. In fact, Sh. H.S. Duggal, General Manager, Head Office, P & S Bank, had asked the branch manager, telephonically to disburse the loan even though, he had no authority with regard to sanction, disbursal or cancellation of the loan. Sh. H.S. Duggal also faced prosecution in the criminal case against M/s Pinki Zips.
C.C. No. 26/12 05-11-2014 20 of 128 8.5 Sh. Bhavook Chauhan Ld. counsel has also argued that there was
no occasion for accused No. 2, Late Sh. J.S. Bedi to seek permission for disbursement of loan amount from accused No. 1, Swarn Singh since the letter dated 26-12-2001, Ex.PW30/H for cancellation of sanction was never received at the Branch Office. Further, accused No. 1, Swarn Singh had been posted at Head Office, Advances Department, w.e.f. 03-01-2002 and Sh. Sukhwant Singh, DGM was Incharge of the Zonal Office. Accused No. 1, Swarn Singh did not attend the meeting of Loan Committee on 16-01-2002. The same is clear from his joining letter, dated 03-01-2002, Ex.DW1/G, attested copy of TA report, Ex.DW1/E which shows that he was travelling to Chandigarh from 14-01-2002 to 16-01-2002 and to Mumbai from 17-01-2002 to 19-01-2002. It is further argued that the minutes of the Loan Committee meeting dated 16-01-2002, Ex.PW15/A is a false document as the complete original minutes have not been produced before the court but only the changed pages No. 1, 11, 12 & 13, Ex.PW15/A have been produced. The said minutes are not even signed by accused No. 1, Swarn Singh which shows that he had not attended the meeting. Had he attended the meeting, he would have signed on the minutes. The Loan Committee meeting can be held even without the presence of General Manager and some instances of the same have been given by PW 31 Sh. C.P. Sobti.
8.6 Ld. counsel further argued that the prosecution has not even shown as to who had prepared the minutes, Ex.PW15/A and the versions of PW 15 Sh. Rajesh Malhotra, PW 20 Sh. Inderjeet Chawla, PW 22 Sh. Shailender Chawla, PW 31 Sh. C.P. Sobti and PW 45 Sh. Sukhwant Singh in this regard are contradictory. It is also argued that on 16-01-2002, the letter dated 03-01-2002 C.C. No. 26/12 05-11-2014 21 of 128 was not available in the Zonal Office. The letter Ex.PW30/DX was received in the Zonal Office on 18-05-2002 whereas the original of letter dated 03-01-2002, Ex.PW30/K is not traceable. There is no cogent explanation by the prosecution as to how the letter dated 03-01-2002 bears the stamp, " dak received" dated 18-05-2002. As per the RTI reply dated 13-02-2012, Ex.DW1/D, the record does not show that either of the two letters dated 03-01-2002, Ex.PW30/DX and Ex.PW30/K had ever been dispatched from the Branch Office. Thus, there was no question of discussion of either of the two letters in the meeting, dated 16-01-2002.
8.7 Ld. counsel has also argued that for grant of loan there has to be a written sanction and it cannot be done by an oral sanction. He has referred to circular No. 45/99, dated 15-11-1999, Ex.DW1/A which stipulates that no authority shall seek or give telelphonic/verbal sanction.
8.8 It has also been argued that the roles of PW 45 Sh. Sukhwant Singh, Sh. JBS Bedi and PW 22 Sh. Shailender Chawla in sanctioning credit facilities to M/s Z.Z. Zippers Pvt. Ltd. have not been examined. CBI has failed to examine Sh. J.B.S. Bedi, the then AGM as a witness though he was signatory to the sanction letter, Ex.PW30/F as well as appraisal and sanction note, Ex.PW22/A-5. He has further argued that CBI had investigated the case in a prejudiced manner. Ld. counsel has also relied upon General Officer Commanding, Rashtriya Rifles vs. CBI, (2012) 6 SCC 228, State Through CBI vs. Ravinder Singh, 1995 (32) DRJ, Ram Suresh vs. Prabhat Singh @ Chhotu Singh & Anr. (2009) 6 SCC 681, Ravi Kant Sharma vs. State, (2011) 183 DLT 248 (DB), Arun Kumar Sharma vs. State of Bihar, (2010) 1 SCC 108, C.C. No. 26/12 05-11-2014 22 of 128 Binay Kumar Singh vs. State of Bihar, (1997) 1 SCC 283, Dudh Nath Pandey vs. State of Uttar Pradesh, (1981) 2 SCC 166, Jaharlal Das vs. State of Orissa, (1991) 3 SCC 27, Kalyan Kumar Gogoi vs. Ashutosh Agnihotri, (2011) 2 SCC 532 and Kali Ram vs. State of Himachal Pradesh, (1973) 2 SCC 808.
Arguments on behalf of Accused No. 3, Yashpal Arora and accused No. 4, Smt. Saroj Arora 8.9 Sh. Brijesh Sharma, Ld. Counsel for Accused No. 3, Yashpal Arora and accused No. 4, Smt. Saroj Arora has mainly argued that it was accused No. 5, Deepak Arora, brother of accused No. 3, Yashpal Arora, who was responsible for playing fraud, if any, with the bank. However, he was not arrested by the CBI. It is argued that accused No. 3, Yashpal Arora had given Rs. 12 lacs to accused No. 5, Deepak Arora. When he demanded the money back, accused No. 5, Deepak Arora executed an agreement dated 12-03-2006 with accused No. 3, Yashpal Arora, as per which the said money was used in setting up factory at Roz ka Meo, Sohna. Accused No. 3, Yashpal Arora and accused No. 4, Smt. Saroj Arora were to sign all loan documents required by the bank/Govt. offices. As per the agreement, accused No. 5, Deepak Arora used to get various documents i.e. bank forms, cheque books, company's letter heads, plain bank papers etc. signed from accused No. 3, Yashpal Arora and accused No. 4, Smt. Saroj Arora. Though the above agreement was in the possession of the IO, he had not investigated into the same.
8.10 It is further contended that the alleged forged conveyance deed of property No. 107, Roz ka Meo, has not been signed by accused No. 3, Yashpal C.C. No. 26/12 05-11-2014 23 of 128 Arora or accused No. 4, Smt. Saroj Arora. These documents were prepared and submitted in the bank by Sh. B. P. Baranwal, as per the MOU dated 7-9-01. However neither Sh. B. P. Baranwal nor any of his associate has been made an accused. Further, Sh. A. K. Chaudhary, as per another MOU dated 07-09-2001 had stated that the loan will be arranged from P&S B, Rajouri Garden Branch, which shows that he and Sh. B. P. Baranwal were having inside connection with the said bank. It is also argued that PW 46 Sh. R.P. Kaushal stated that he had not obtained specimen signatures of Sh. B. P. Baranwal or Sh. A. K. Chaudhary. However, specimen signatures of Sh. A. K. Chaudhary were sent to GEQD but no report came and there is positive report with regard to specimen signatures of Sh. B. P. Baranwal.
8.11 It is also contended that the proforma invoice and quotation of Prince Generators, Ex. PW 2/1 and Ex. PW 2/2 are dated 07-01-2002 whereas the loan was sanctioned on 24-11-2001. How the loan was sanctioned prior to the receipt of quotation has not been explained. Further, IO has not taken specimen signatures of PW 2 Sh. Baldev Singh or PW 4 Sh. Jagmohan Singh for comparison with those on the quotation and proforma invoice, Ex.PW2/1 and Ex.PW2/2. There are no signatures of accused No. 4, Saroj Arora on the audited balance sheets of the company. The IO has not even examined the owner of Kapoor Banga & Company i.e. Kamal Kapoor, who is the real uncle of wife of accused No. 5, Deepak Arora and Subhash Banga as well as Sh. Karan Kamal Kapoor and Kavita Kapoor, who are Managing Director/Director of Z.Z. Zippers Pvt. Ltd.
8.12 It is also argued that the account of M/s Z.Z. Zippers Pvt. Ltd. was C.C. No. 26/12 05-11-2014 24 of 128
opened on 03-11-2001 whereas the request for loan facility was made on 17-10-2001. The bank could not have recommended loan on 25-10-2001 on the letter dated 17-10-2001, when the account was not opened. The account opening form does not bear signatures of accused No. 4, Saroj Arora. IO had not investigated as to who had signed on the letter, Ex.PW7/1.
8.13 It is further argued that the alleged forged letter, dated 30-10-2001 Ex.PW30/D was not sent to GEQD. As per PW 3 Sh. Virender Singh, the author of the document was Sh. Pradeep Dagar. However, the said Sh. Pradeep Dagar has not been examined and his specimen signatures were also not obtained by the IO. It is also argued that the alleged forged assets and liability statement, Ex.PW27/A-124 of Sh. Sanjay Verma is dated 23-10-2001 whereas the account was opened on 03-11-2001. The IO had taken specimen signatures of PW6 Sanjay Verma and PW 33 Vinod Sabharwal who signed as Sanjay Verma and the same were sent to GEQD but no opinion was given on the same. PW 33 Sh. Vinod Sabharwal has stated that he was 30 years old in 1986 and after 1986, he never met accused No. 3, Yashpal Arora or accused No. 5, Deepak Arora which means that the photograph on Ex.PW27/A-124 is prior to 1986 whereas the photograph is not of a 30 years old person but of a person who is 45 years old. It shows that the said witness is telling a lie since he is a friend of accused No. 5, Deepak Arora.
8.14 It is also argued that the account opening form of Federal Bank is having handwriting of accused No. 5, Deepak Arora. This document was not sent to GEQD for ascertaining as to who has filled up this form. It is contended that accused No. 5, Deepak Arora got this account opened without any C.C. No. 26/12 05-11-2014 25 of 128 introducer and he had filled up the account opening form, Ex.PW27/B-3. The pay order for Rs.4,56,500/- was never deposited in the said account. The seized pay in slip, Ex.PW27/A-119 is not of Rs.4,56,500/- but is of Rs.4,76,500/- and in the deposit slip, Ex.PW27/A-119, the drawer is India Cement Capital, Kasturba Gandhi Marg, New Delhi and it bears writing of accused No. 5, Deepak Arora.
8.15 It is also argued that as per PW18 Sh. Gurnam Singh, Mr. Yashpal and Mrs. Saroj Arora filled in and signed account opening form and other documents in his presence but the GEQD report says that the signatures of Saroj Arora are not genuine.
8.16 It is further contended that the investigation is tainted as ASI Prahlad Singh executed warrant u/s 83 Cr.P.C. on 28-03-06 and 05-05-06 at A/82, Ramesh Nagar instead of 2A/71, Ramesh Nagar. IO obtained specimen signatures of 13 persons but the report received from GEQD is with regard to 8 persons. Report with regard to 5 persons who are directly related to accused No. 5, Deepak Arora was important to prove the genuineness of the documents. It is further argued that though, as per IO, Specimen signatures S-1 to S-33 were taken in presence of PW 18 Sh. Gurnam Singh on 08-01-05 but PW 18 Sh. Gurnam Singh has not mentioned anything regarding his being a witness to specimen signatures of accused No. 3. Further, on specimen signatures of accused No. 3, Yashpal Arora, Mark S-23 to S-32, the witness shown is Kapil Dev Sharma and the date is 11-01-2005. PW 24 Sh. Kapil Dev Sharma had stated that he was called by CBI in the year 2004 and not in 2005. He has also not stated anything about being a witness to the specimen signatures which the C.C. No. 26/12 05-11-2014 26 of 128 IO says, are of accused No. 3, Yashpal Arora.
8.17 It is also argued that though IO had allegedly seized documents from A.K. Sood, Chief Vigilance Officer, P & S B, Sh. Mukul Bhasin, Sr. Sales Officer, HDFC Bank, Sh. Nand Kumar V. of Federal Bank and Sh. Rishi Jha, Branch Manager, ICICI Bank but they were not made witnesses. PW 27 Sh. T. Joshi had filed report on certain documents containing Q-259 to Q-273, Q-327, Q-328, Q-330 to Q-332 and S-42 to S-55 which are not traceable. It shows that he has filed report on the instructions of IO. IO has not conducted investigation with regard to involvement of Sh. H.S. Duggal in this case. Further the IO had deliberately concealed the documents mentioned in the seizure memo dated 06-01-05, Ex.PW46/D-1. The said documents were taken by IO from accused No. 5, Deepak Arora. IO has not investigated the fact that accused No. 5, Deepak Arora was involved in similar cases.
8.18 It is further argued that on Ex.PW37/1, there is a noting, p ' arty is a valuable client'. This actually refers to accused No. 5, Deepak Arora as the appraisal note, Ex.PW22/A-5 reveal that prior to the present loan, only accused No. 5, Deepak Arora has relation with the bank officials. Further, Sh. J.B.S. Bedi, AGM who had signed on the appraisal note on 22-11-2001 and on the sanction letter, dated 01-12-2001 was not made a witness. IO had also not investigated with respect to Sh. Karan Kamal Kapoor and Ms. Kavita Kapoor, who were Managing Director/Director of Z.Z. Zippers Pvt. Ltd. It is also argued that the IO had facilitated Sh. B.P. Baranwal, Sh. Ashok Chaudhary, Sh. Dinesh Jain, Sh. Vinod Sabharwal, Sh. Subhash Banga (Ex partner of Kapoor Banga & Co.), Sh. Kamal Kapoor (Ex partner of Kapoor Banga & Co.), Sh. Karan Kamal C.C. No. 26/12 05-11-2014 27 of 128 Kapoor and Ms. Kavita Kapoor because these persons are related to accused No. 5, Deepak Arora. Ld. counsel has relied upon Runu Ghosh vs. CBI (Crl. Appeal No. 482/02 decided by Hon'ble Delhi High Court on 21-122011), Ram Narain Popli vs. CBI, 2003 AIR (SC) 2748, Parminder Kaur vs. State of U.P. and Anr., (2010) 1 SCC 322, State Inspector of Police Vishakhapatnam vs. Surya Sankaram Karri, (2006) 7 SCC 172, Yogesh vs. State of Maharashtra, (2008) 10 SCC 394, Subhash Chand Chauhan & Ors. vs. CBI, 2005 III AD (Delhi) 41, R. Balakrishna Pillai vs. State of Kerala, (2003) 9 SCC 700, Mir Nagvi Askari vs. CBI, AIR 2010 SCC 528, C.K. Jaffer Sharief vs. State (through CBI), (2013) 1 SCC 205, Datar Singh vs. The State of Punjab, 1975 SCC (Cri) 530, C.M. Girish Babu vs. CBI, (2009) 3 SCC 779, Nand Kumar Singh vs. State of Bihar, 1992 Supp 2 SCC 111, Ganapathi Sanya Naik vs. State of Karnatka, 2007 (4) JCC 2715, Abdulla Mohammed Pagarkar vs. State (U.T. of Goa, Daman and Diu), (1980) 3 SCC 110, S.V.L. Murthy vs. State, (2009) 6 SCC 77, S.P. Bhatnagar vs. State of Maharashtra, (1979) 1 SCC 535, Shreya Jha vs. CBI, 2007 (3) JCC 2318, Gulam Sarbar vs. State of Bihar, 2013 (4) Crimes 364 (SC), Kalyan Kumar Gogoi vs. Ashutosh Agnihotri and Anr., (2011) 2 SCC 532, Arun Kumar Sharma vs. State of Bihar, 2009 (13) SCALE, A Subair vs. State of Kerala, 2009 VII AD (SC) 117, Jaharlal Das vs. State of Orissa, (1991) 3 SCC 27, and Ms. Ibrahim & Ors. vs. State of Bihar & Anr. 2009 (12) SCALE.
8.19 I have heard Sh. Manoj Shukla, Ld. P.P. for CBI, Sh. Bhavook Chauhan, Ld. counsel for accused No. 1, Swarn Singh and Sh. Brijesh Sharma, Ld. counsel for accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora. I have also perused the record.
C.C. No. 26/12 05-11-2014 28 of 128 Points for Determination. 9.1 Charges appears to have been, inter-alia, inadvertently framed
against all the accused persons twice for the offence of criminal conspiracy under section 120 B IPC i.e. firstly only " under section 120 B IPC" and secondly " under section 120 B IPC r/w section 420, 467, 468, 471 IPC & section 13 (2) r/w section 13 (1) (d) of the PC Act" . Particulars of both the charges reveal that these relate to the same conspiracy. Thus, only one charge under section 120 B IPC r/w sections 420, 467, 468, 471 IPC & section 13 (2) r/w section 13 (1) (d) of the PC Act is being considered, the other charge u/s 120 B IPC being superfluous.
9.2 In the instant case as per the charges framed, the following points are required to be determined:-
A. Charge u/s 120-B r/w Sections 420, 467, 468, 471 IPC & Section 13 (2) r/w Section 13 (1) (d) of the PC Act against all the accused persons namely accused No. 1, S. Swarn Singh, accused No. 3, Yashpal Arora and accused No. 4, Smt. Saroj Arora
(i) Whether during the year 2001-02, at New Delhi and other places, all the accused persons namely accused No. 1, S. Swarn Singh, accused No. 3, Yashpal Arora and accused No. 4, Smt. Saroj Arora along with their co-accused Jitender Singh Bedi (since expired) entered into an agreement?
(ii) If so, whether they had agreed to do an illegal act i.e. to cheat P & S B, Rajouri Garden Branch, New Delhi by fraudulently inducing it to sanction/disburse credit facilities in the name of M/s Z.Z. Zippers Pvt. Ltd., C.C. No. 26/12 05-11-2014 29 of 128 B-198, Mansarovar Garden, New Delhi, a company under the Directorship of accused No. 3, Yashpal Aroa and accused No. 4, Smt. Saroj Arora to the extent of Rs. 13,00,000/- as term loan and C.C. Limit of Rs. 35,00,000/- on the basis of fake/fabricated documents i.e. forged conveyance deed of property No. 107, Roz-Ka-Meo, Industrial Area, Sohna, District Gurgaon, Haryana?
(iii) If so, whether in pursuance of the said agreement, accused No. 1, S. Swarn Singh by abusing his official position, fraudulently sanctioned the credit facilities to the tune of Rs. 13,00,000/- as term loan and C.C. limit of Rs.
35,00,000/- on 03-01-2002 and also allowed accused No. 2, Jitender Singh Bedi (since expired), the then Branch Manager to disburse the credit facilities to M/s Z.Z. Zippers Pvt. Ltd. knowing fully well that credit facilities to the said company were withheld on 26-12-2001 and the action of Branch Manager was confirmed vide Zonal Office Meeting dated 16-01-2002 held under his Chairmanship, and accused No. 3, Yashpal Arora and accused No. 4, Smt. Saroj Arora, both Directors of M/s Z.Z. Zippers Pvt. Ltd. submitted a loan proposal dated 17-10-2001 for Rs. 13,00,000/- as term loan and C.C. limit of Rs. 35,00,000/- on the basis of false/fabricated documents viz. Conveyance deed of property No. 107, Roz-Ka-Meo, Industrial Area, Sohna, District Gurgaon, Haryana, forged quotation of M/s Prince Generators, forged audited balance sheet of the company for the years ending 31-01-1999, 31-03-2000 and 31-03-2001, forged letter dated 22-10-2001 of attestation of signatures of both Directors by the Branch Manager, Central bank of India, Gurgaon, forged letter dated 30-10-2001 in respect of forged conveyance deed issued by HUDA, Gorgaon and forged Assets and Liability Statement of Guarantor Sanjay Verma?
C.C. No. 26/12 05-11-2014 30 of 128 B. Charge under Section 13 (2) read with Section 13 (1) (d) of PC Act against accused No. 1, S. Swarn Singh
(i) Whether during the period 2001-02 at New Delhi, accused No. 1, S. Swarn Singh was a public servant i.e. General Manager, P & S B, New Delhi?
(ii) If so, whether during the above period at New Delhi, accused No. 1, S. Swarn Singh obtained pecuniary advantage to the tune of Rs. 48,00,000/- for accused No. 3, Yashpal Arora and accused No. 4, Smt. Saroj Arora by fraudulently sanctioning the credit facilities to the tune of Rs. 13,00,000/- as term loan and C.C. Limit of Rs. 35,00,000/- on 03-01-2002 and allowing Sh. Jitender Singh Bedi (since expired), the then Branch Manager to disburse the credit facilities to M/s Z.Z. Zippers Pvt. Ltd. knowing fully well that credit facilities to the said company were withheld on 26-12-2001 and the action of Branch Manager was confirmed vide Zonal Office Meeting dated 16-01-2002 held under his Chairmanship on the basis of false/fabricated documents and thus, he caused corresponding loss to P & S B, Rajouri Garden, New Delhi?
(iii) If so, whether accused No. 1, S. Swarn Singh did as above by use of illegal means and/or abuse of his official position?
C. Charge under Section 420 IPC against accused No. 3, Yashpal Arora.
(i) Whether during the period 2001-02 at New Delhi, accused No. 3, Yashpal Arora along with his wife, accused No. 4, Smt. Saroj Arora, both Directors of M/s Z.Z. Zippers Pvt. Ltd., deceived P & S B, Rajouri Garden Branch, New Delhi?
(ii) If so, whether accused No. 3, Yashpal Arora, along with accused No. 4, Saroj Arora induced P & S B, Rajouri Garden Branch, New Delhi to grant credit facilities i.e. Rs. 13,00,000/- as term loan and C.C. limit of Rs. 35,00,000/- on the C.C. No. 26/12 05-11-2014 31 of 128 basis of fake/fabricated documents viz. forged conveyance deed of property No. 107, Roz-Ka-Meo, Industrial Area, Sohna, District Gurgaon, Haryana, forged quotation of M/s Prince Generators, forged audited balance sheet of the company for the years ending 31-01-1999, 31-03-2000 and 31-03-2001, forged letter dated 22-10-2001 of attestation of signatures of both Directors by the Branch Manager, Central bank of India, Gurgaon, forged letter dated 30-10-2001 in respect of forged conveyance deed issued by HUDA, Gurgaon and forged Assets and Liability Statement of guarantor Sanjay Verma?
(iii) If so, whether accused No. 3, Yashpal Arora along with accused No. 4, Smt. Saroj Arora had induced P & S B, Rajouri Garden Branch, New Delhi as above dishonestly?
(iv) If so, whether accused No. 3, Yashpal Arora along with accused No. 4, Saroj Arora obtained the above credit facilities in the name of M/s Z.Z. Zippers Pvt. Ltd.?
D. Charge under Section 467 IPC against accused No. 3, Yashpal Arora.
(i) Whether during the period 2001-02 at New Delhi, accused No. 3, Yashpal Arora, Director of M/s Z.Z. Zippers Pvt. Ltd., fraudulently forged documents viz. Conveyance deed of property No. 107, Roz-Ka-Meo, Industrial Area, Sohna, District Gurgaon, Haryana, quotation of M/s Prince Generators, audited balance sheet of the company for the years ending 31-01-1999, 31-03-2000 and 31-03-2001, letter dated 22-10-2001 of attestation of signatures of both Directors by the Branch Manager, Central bank of India, Gurgaon, letter dated 30-10-2001 in respect of forged conveyance deed issued by HUDA, Gurgaon and Assets and Liability Statement of Guarantor Sanjay Verma?
C.C. No. 26/12 05-11-2014 32 of 128 E. Charge under Section 468 IPC against accused No. 3, Yashpal Arora.
(i) Whether during the period 2001-02 at New Delhi, accused No. 3, Yashpal Arora, Director of M/s Z.Z. Zippers Pvt. Ltd., fraudulently forged documents viz. Conveyance deed of property No. 107, Roz-Ka-Meo, Industrial Area, Sohna, District Gurgaon, Haryana, quotation of M/s Prince Generators, audited balance sheet of the company for the years ending 31-01-1999, 31-03-2000 and 31-03-2001, letter dated 22-10-2001 of attestation of signatures of both Directors by the Branch Manager, Central bank of India, Gurgaon, letter dated 30-10-2001 in respect of forged conveyance deed issued by HUDA, Gurgaon and Assets and Liability Statement of Guarantor Sanjay Verma?
(ii) If so, whether accused No. 3, Yashpal Arora intended that the aforesaid documents shall be used for the purpose of cheating P & S B, Rajouri Garden, New Delhi?
F. Charge under Section 471 IPC against accused No. 3, Yashpal Arora.
(i) Whether during the period 2001-02 at New Delhi, accused No. 3, Yashpal Arora, being Director of M/s Z.Z. Zippers Pvt. Ltd., used forged documents i.e. Conveyance deed of property No. 107, Roz-Ka-Meo, Industrial Area, Sohna, District Gurgaon, Haryana, forged quotation of M/s Prince Generators, forged audited balance sheet of the company for the years ending 31-01-1999, 31-03-2000 and 31-03-2001, forged letter dated 22-10-2001 of attestation of signatures of both Directors of M/s Z.Z. Zippers Pvt Ltd. by the Branch Manager, Central bank of India, Gurgaon, forged letter dated 30-10-2001 in respect of forged conveyance deed issued by HUDA, Gurgaon and forged C.C. No. 26/12 05-11-2014 33 of 128 Assets and Liability Statement of Guarantor Sanjay Verma, as genuine for inducing P & S B to sanction/disburse a term loan of Rs. 13,00,000/- and C.C. limit of Rs. 35,00,000/- in favour of M/s Z.Z. Zippers Pvt. Ltd.?
(ii) If so, whether he used the aforesaid documents as genuine knowing or having reason to believe the same to be forged?
(iii) if so, whether he did so fraudulently or dishonestly?
G. Charge under Section 420 IPC against accused No. 4, Saroj Arora
(i) Whether during the period 2001-02 at New Delhi, accused No. 4, Saroj Arora along with her husband, accused No. 3, Yashpal Arora, both Directors of M/s Z.Z. Zippers Pvt. Ltd., deceived P & S B, Rajouri Garden Branch, New Delhi?
(ii) If so, whether accused No. 4, Saroj Arora induced P & S B, Rajouri Garden Branch, New Delhi to grant credit facilities i.e. Rs. 13,00,000/- as term loan and C.C. limit of Rs. 35,00,000/- on the basis of fake/fabricated documents viz. forged conveyance deed of property No. 107, Roz-Ka-Meo, Industrial Area, Sohna, District Gurgaon, Haryana, forged quotation of M/s Prince Generators, forged audited balance sheet of the company for the years ending 31-01-1999, 31-03-2000 and 31-03-2001, forged letter dated 22-10-2001 of attestation of signatures of both Directors by the Branch Manager, Central bank of India, Gurgaon, forged letter dated 30-10-2001 in respect of forged conveyance deed issued by HUDA, Gurgaon and forged Assets and Liability Statement of guarantor Sanjay Verma?
(iii) If so, whether accused No. 4, Saroj Arora along with her husband, accused No. 3, Yashpal Arora had induced P & S B, Rajouri Garden Branch, C.C. No. 26/12 05-11-2014 34 of 128 New Delhi as above dishonestly?
(iv) If so, whether accused No. 4, Saroj Arora obtained the above credit facilities in the name of M/s Z.Z. Zippers Pvt. Ltd.?
H. Charge under Section 467 IPC against accused No. 4, Saroj Arora.
(i) Whether during the period 2001-02 at New Delhi, accused No. 4, Smt. Saroj Arora, Director of M/s Z.Z. Zippers Pvt. Ltd., fraudulently forged documents viz. Conveyance deed of property No. 107, Roz-Ka-Meo, Industrial Area, Sohna, District Gurgaon, Haryana, quotation of M/s Prince Generators, audited balance sheet of the company for the years ending 31-01-1999, 31-03-2000 and 31-03-2001, letter dated 22-10-2001 of attestation of signatures of both Directors by the Branch Manager, Central bank of India, Gurgaon, letter dated 30-10-2001 in respect of forged conveyance deed issued by HUDA, Gurgaon and Assets and Liability Statement of Guarantor Sanjay Verma?
I. Charge under Section 468 IPC against accused No. 4, Saroj Arora.
(i) Whether during the period 2001-02 at New Delhi, accused No. 4, Smt. Saroj Arora, Director of M/s Z.Z. Zippers Pvt. Ltd., fraudulently forged documents viz. Conveyance deed of property No. 107, Roz-Ka-Meo, Industrial Area, Sohna, District Gurgaon, Haryana, quotation of M/s Prince Generators, audited balance sheet of the company for the years ending 31-01-1999, 31-03-2000 and 31-03-2001, letter dated 22-10-2001 of attestation of signatures of both Directors by the Branch Manager, Central bank of India, Gurgaon, letter dated 30-10-2001 in respect of forged conveyance deed issued by HUDA, Gurgaon and Assets and Liability Statement of Guarantor Sanjay Verma?
C.C. No. 26/12 05-11-2014 35 of 128 (ii) If so, whether accused No. 4, Smt. Saroj Arora intended that the
aforesaid documents shall be used for the purpose of cheating P & S B, Rajouri Garden, New Delhi?
J. Charge under Section 471 IPC against accused No. 4, Saroj Arora.
(i) Whether during the period 2001-02 at New Delhi, accused No. 4, Smt. Saroj Arora, Director of M/s Z.Z. Zippers Pvt. Ltd., used forged documents i.e. Conveyance deed of property No. 107, Roz-Ka-Meo, Industrial Area, Sohna, District Gurgaon, Haryana, forged quotation of M/s Prince Generators, forged audited balance sheet of the company for the years ending 31-01-1999, 31-03-2000 and 31-03-2001, forged letter dated 22-10-2001 of attestation of signatures of both Directors of M/s Z.Z. Zippers Pvt. Ltd. by the Branch Manager, Central bank of India, Gurgaon, forged letter dated 30-10-2001 in respect of forged conveyance deed issued by HUDA, Gurgaon and forged Assets and Liability Statement of Guarantor Sanjay Verma, as genuine for inducing P & S B to sanction/disburse a term loan of Rs. 13,00,000/- and C.C. limit of Rs. 35,00,000/- in favour of M/s Z.Z. Zippers Pvt. Ltd.?
(ii) If so, whether she used the aforesaid documents as genuine knowing or having reason to believe the same to be forged?
(iii) if so, whether she did so fraudulently or dishonestly?
10.1 It is pertinent to refer to Sec. 3 of the Indian Evidence Act, 1872 (hereinafter called as 'IEA') which defines the term 'proved' and d ' isproved' as under :-
" ' Proved'- A fact is said to be proved when, after considering the matters before C.C. No. 26/12 05-11-2014 36 of 128 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"
" ' Disproved'- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non- existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist."
10.2 It is well settled that the word 'proof' means anything which serves, either immediately or mediately to convince the mind of the truth or falsehood of a fact or proposition; and the proofs of matters of fact in general are our senses, the testimony of witnesses, documents and the like. " Proof" does not mean proof to rigid mathematical demonstration, because that is impossible; it means such evidence as would induce a reasonable man to come to the conclusion [vide Emperor vs. Shafi Ahmed, (1925) 31 Bom. LR 515]. Further, Sec. 134 of IEA stipulates that no particular number of witnesses shall in any case be required for the proof of any fact.
10.3 In human affairs, everything cannot be proved with mathematical certainty and the law does not require it. Legal proof is something different from moral certainty about the guilt of an accused person. Suspicion, however, great, cannot take the place of legal proof. A moral conviction, however strong or genuine, cannot amount to a legal conviction supportable in law. The well known rule of criminal justice is that " fouler the crim e, higher the proof." [ vide Sharad Birdhichand vs. State of Maharashtra, AIR 1984 SC 1622].
10.4 In criminal matters, the prosecution is required to prove its case C.C. No. 26/12 05-11-2014 37 of 128
beyond a reasonable doubt. A benefit of doubt is the condition of the mind which exists where the judges cannot say that they feel an abiding condition, a moral certainty of the truth of the charge. It must not be a mere doubt of a vacillating mind that has not the moral courage to decide upon a difficult and complicated question and therefore, takes shelter in an idle scepticism (vide 1977 CrLJ 59).
10.5 It is well settled that the burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. However, the rule in section 106 of the Act would apply when the facts are 'especially within the knowledge of the accused' and it would be impossible or at any rate disproportionately difficult for the prosecution to establish such facts which are 'especially within the knowledge of the accused'. The prosecution is not required to eliminate all possible defences or circumstances which may exonerate him. If certain facts are in the knowledge of the accused then he has to prove them. Of course the prosecution has to prove prima facie case in the first instance. In this regard reference can be made to Murlidhar vs. State of Rajasthan, AIR 2005 SC 2345, State of Punjab vs. Karnail Singh, (2003) 11 SCC 271, Trimukh Maroti Kirkan vs. State of Maharashtra, 2007 Cr LJ 20 (SC), Santosh Kumar Singh vs. State, (2010) 9 SCC 747 and Ram Singh vs. State, 2011 Cr LJ 618 (Raj.), AIR 1959 SC 1390, AIR 1937 Rang 83, 1968 Cri LJ 848, AIR 1967 Mys 79 and 1964 (1) Cri LJ 688.
10. 6 It is also well settled that criminal conspiracy is often hatched in secrecy and for proving the offence substantial direct evidence may not be C.C. No. 26/12 05-11-2014 38 of 128 possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence. However, it cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence. Where the prosecution case rests merely on circumstantial evidence, the facts established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. However, on the basis of evidence led by prosecution, if two views are possible, one pointing to the guilt of the accused and other to his innocence, the one in favour of the accused must be accepted. In this regard, reference can be made to Saju vs. State of Kerala, (2001) 1 SCC 378, Sherimon vs. State of Kerala, (2011) 10 SCC 768, P.K. Narayanan vs. State of Kerala, (1995) 1 SCC 142, State of M.P. vs. Sheetla Sahai, 2009 Cr. LJ 4436, Shivaji Saheb Rao Bobde vs. State of Maharashtra, AIR 1973 SC 2622, Harendra Narain Singh vs. State of Bihar, AIR 1991 SC 1842, Baboo Ram, vs. State, 1996 Cri LJ 483 and N. Rajendra Prasad Bhat vs. State, 1996 Cri LJ 258.
10.7 The essence of conspiracy is unlawful combination and the complicity of the accused has to be decided after considering all the circumstances proved, before, during and after occurrence. Agreement between the conspirators may also be proved by necessary implication. It is not necessary that each member of a conspiracy must know all the details of the conspiracy. Facts established should be consistent only with the hypothesis of guilt of the accused. It does not mean that each and every hypothesis suggested by accused must be excluded by proved facts. In this regard reference can be made to Chaman Lal vs. State of Punjab, AIR 2009 SC 2972, R.K. Dalmia vs. C.C. No. 26/12 05-11-2014 39 of 128 The Delhi Administration, AIR 1962 SC 1821, Muriappan vs. State of Tamil Nadu, AIR 2010 SC 3718 and Firozuddin Basheeruddin vs. State of Kerala, (2001) 7 SCC 596.
10.8 Since, the prosecution has relied upon the opinion of the handwriting expert, it is pertinent to refer to section 45 of the Indian Evidence Act, 1872, which provides as under:-
" 45. Opinions of experts.- When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts."
10.9 The weight that ought to be attached to the opinion of an expert is a different matter from its relevancy. The Act only provides about the relevancy of expert opinion but gives no guidance as per its value. It is well-settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. It is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. In this regard, reference can be made to Magan Bihari Lal vs. State of Punjab, AIR 1977 SC 1091, Ram Chandra vs. State of Uttar Pradesh, AIR 1957 SC 381 and S. Gopal Reddy vs. State of Andhra Pradesh, AIR 1996 SC 2184. No doubt, the science with regard to the identification of handwriting and signatures, is not conclusive like the science of identification of thumb impressions, yet when due corroboration to the opinion of a handwriting expert through ocular C.C. No. 26/12 05-11-2014 40 of 128 and circumstantial evidence is provided, then certainly such an opinion, could be relied upon. (Vide Lall Chand vs. State of Punjab, 2010 Cr LJ 699).
10.10 In Murari Lal vs. State of Madhya Pradesh, 1980 AIR 531, the Hon'ble Supreme Court held, " ..... . We begin with observation that the expert is no accomplice. There is no justification for condemning his opinion-evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses-the quality of credibility or incredibility being one which an expert shares with all other witnesses-, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence."
The Hon'ble Apex court also held, " We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystalized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having C.C. No. 26/12 05-11-2014 41 of 128 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. 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."
10.11 It is also pertinent to refer to section 415 IPC which defines cheating as:-
" 415.Cheating.-- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to"
cheat".
Explanation.- A dishonest concealment of facts is a deception within the meaning of this section."
Further, section 420 IPC provides, " 420. Cheating and dishonestly inducing delivery of property.-- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
10.12 It is also pertinent to refer to section 24 IPC which defines the term 'dishonestly' as under :-
C.C. No. 26/12 05-11-2014 42 of 128 " 24. " Dishonestly" .- Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing " dishonestly" ."
The terms 'wrongful gain' and 'wrongful loss' have been defined in sections 23 IPC, as under :-
" 23. " Wrongful gain" . - " Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled.
" Wrongful loss" . - " Wrongful Loss" is the loss by unlawful means of property to which the person losing it is legally entitled.
Gaining wrongfully, losing wrongfully.- A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property."
Further, section 25 IPC defines the term 'fraudulently' as under :-
" 25. " Fraudulently" . - A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise."
10.13 To bring home an offence of cheating, the prosecution is required to prove the following ingredients:-
1. Deception of any person,
2. (a) Fraudulently or dishonestly inducing that person -
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) Intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
C.C. No. 26/12 05-11-2014 43 of 128 10.14 It may also be noted that sections 467 & 468 are aggravated forms
of the offence of forgery. Section 463 IPC defines 'forgery' as "463. Forgery. - Whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
Further Section 464 IPC defines 'false document' as "464. Making a false document. - A person is said to make a false document or false electronic record -
First - Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a documents or part of the document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly - xxxxxx Thirdly - xxxxxx" (emphasis supplied).
10.15 In Riasat Ali @ Babu Viya Vs. Unknown, (1881) 7 Cal, 352 Hon'ble Chief Justice Garth held, " I consider the making of a document, or part of a document, does not mean 'writing' or 'printing' it, but signing or otherwise executing it; as in legal phrase we speak of 'making an indenture' or 'making a promissory note'; by which is not meant the writing out of the form of the instrument but the sealing or signing it as a deed or note. The fact that the word 'makes' is used in the section in conjunction with the words 'signs', 'seals' or 'excutes' or 'makes any mark denoting the execution', etc. seems to me very clearly to denote that this is its true meaning. What constitutes a false document, or part of a document, is not C.C. No. 26/12 05-11-2014 44 of 128 the writing of any number of words which in themselves are innocent, but affixing the seal or signature of some person to the document, or part of a document knowing that the seal or signature is not his, and that he gave no authority to affix it. In other words, the falsity consists in the document, or part of a document, being signed or sealed with the name or seal of a person who did not infact sign or seal it."
10.16 A person can be said to have made a 'false document' if (i) he made or executed a document claiming to be someone else or authorized by someone else or (ii) he altered or tampered a document; or (iii) he obtained a document practicing deception, or from a person not in control of his senses. (Vide Md. Ibrahim & Ors. vs. State of Bihar and Anr. 2010 Cri LJ 2223). There is a difference between execution or making of a document itself being false and the contents of a document being false. Whereas the former is covered u/s 464 IPC, the latter would not amount to f' alse document' as defined in section 464 of IPC.
10.17 It is in the light of the above position of law that evidence is to be appreciated.
Appreciation of Evidence 11.1 A doubt was sought to be raised by Ld. Counsel for accused No. 3, Yashpal Arora that the said accused is not a Director of M/s Z.Z. Zippers Pvt. Ltd. He has referred to the Memorandum and Article of Association, Ex.PW 37/1 of M/s Z.Z. Zippers Pvt. Ltd., according to which Sh. Karan Kamal Kappor, Ms. Kavita Kapoor and accused No. 4, Saroj Arora are the Directors of the said company. It is pertinent to note that the certificate of incorporation contained in Ex.PW37/1 is of 19-08-1988. It shows that at the time of incorporation of the company, the aforesaid three persons were the Directors of M/s Z.Z. Zippers C.C. No. 26/12 05-11-2014 45 of 128 Pvt. Ltd. However, in the account opening form, Ex.PW16/A, Extracts of Board Meeting dated 31-07-2007, Ex.PW27/A-3, Details of Status of the borrower, Ex.PW27/A-6, submitted along with loan application, Ex.PW27/A-2 and various other documents submitted with the application for loan as well as loan documents executed by both accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora, the said accused persons have themselves stated that both of them were Directors of M/s Z.Z. Zippers Pvt. Ltd. As discussed in subsequent paras, these documents bear signatures of accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora. Further, as per copy of form No. 32, available in the bank record, on 28-02-1996, Sh. Karan Kamal Kapoor and Ms. Kavita Kapoor retired from directorship of M/s Z.Z. Zippers Pvt. Ltd. and accused No. 3, Yashpal Arora was appointed as a Director. Thus, accused No. 3, Yashpal Arora cannot take a plea that he was not a Director of M/s Z.Z. Zippers Pvt. Ltd.
12.1 This case is based mainly on documentary evidence. Accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora have admitted their signatures/ handwriting on some documents and disputed their signatures on certain other documents. They also claim that accused No. 5, Deepak Arora and his associates have obtained their signatures on various blank papers/printed forms. Prosecution has heavily relied upon the opinion of handwriting expert to prove its case against the accused persons and some of the documents are sought to be proved only on the basis of GEQD's report. Thus, the report of the GEQD on such documents is relevant to appreciate the evidence led by prosecution. Therefore, it would be relevant and convenient to first refer to the evidence regarding documents collected during investigation and GEQD's report on the relevant documents.
C.C. No. 26/12 05-11-2014 46 of 128 12.2 In this regard, PW 30 Sh. Pardeep Singh Sikka deposed about
seizure memo, Ex. PW30/A bearing his signatures at points A-1 to and A-4, vide which he had handed over the documents, Ex.PW27/A-49 to Ex.PW27/A-100. It can be seen that these are the loan documents executed by accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora. He further stated that vide the seizure memo, dated 10-08-2004, Ex. PW30/B bearing his signatures at points A-1 and A-2, he had handed over the documents, Ex.PW24/A to Ex.PW24/E and Ex.PW27/A-102 to Ex.PW27/A-115. The above documents are various debit vouchers/credit vouchers/ cheques etc. in respect of M/s Z.Z. Zippers Pvt. Ltd. He also deposed that vide seizure memo, Ex.PW30/B, he had also handed over a request letter, Ex. PW30/C of M/s Z.Z. Zippers for issuance of draft and letter dt. 30-10-2001, Ex. PW30/D written to Z.Z. Zippers by HUDA. During his cross-examination, PW 30 Sh. Pardeep Singh Sikka stated that all the documents which are mentioned in the seizure memos, Ex.PW30/A and 30/B were taken by him to the office of CBI. He had taken only those documents which were asked for by the CBI.
12.3 PW 19 Sh. K.S. Rohilla, who was posted in Sohna, Branch of Oriental Bank of Commerce w.e.f August 2003 to August 2007, deposed that through seizure memo dated 27-09-2004, Ex.PW19/A, which bears his signature at point A, he had handed over to CBI the Conveyance Deed, Ex.PW19/B of M/s Z.Z. Zippers Pvt. Ltd. through its Directors Mrs. Saroj Arora, B-198, Man Sarovar Garden, New Delhi, alongwith receipt No. 10975/11 dated 09-03-1998, Ex.PW19/C for Rs. 6,190/- issued from the office of Sub Registrar, which were submitted in Oriental Bank of Commerce, Sohna, Gurgaon, Branch. At the time C.C. No. 26/12 05-11-2014 47 of 128 of handing over the conveyance deed and receipt, he had signed alongwith date on the back side of each sheet at point A in token of handing over the same to the CBI. He also testified that M/s Z. Z. Zippers was having its CC account in Oriental Bank of Commerce, Sohna Branch and Yash Pal Arora and Saroj Arora were its Directors. The account became NPA (Non Performing Assets). The documents Ex. PW 19/B and Ex. PW 19/C were taken as security for the loan. During his cross examination, nothing affecting the above testimony could be elicited.
12.4 PW 23 Sh. Ishwar Chander Vij, Officer, Federal Bank, Gurgaon deposed that through letter dated 20-01-2005, Ex.PW23/A, addressed to CBI, he forwarded the documents i.e. Account Opening Form of Current Account No. 573 in the name of New Scientific Chemicals, under the sole proprietorship of Yashpal Arora, Ex. PW 1/1, Ex. PW 23/A1 (Annexure of Ex. PW 1/1) and credit vouchers Ex. PW 23/B1 to Ex. PW 23/B 6 and Ex. PW1/2 and cheques/debit vouchers Ex. PW23/C1 to Ex. PW23/C17. During his cross examination also nothing adverse to the above testimony could be elicited.
12.5 PW 35 Sh. Ritesh Bhatnagar, Sr. Officer in the ICICI Bank, Sector- 14, Gurgaon, in the year 2005, deposed that letter dt. 06-01-2005, Ex. PW35/A addressed to Addl. Superintendent of Police CBI (D-12) is signed by Shri Rishi Jha, the then Branch Manager of Sector 14 Branch, in the year 2005 at point A. He can identify his signature as he has worked under him and has seen him signing documents. He further deposed that letter dt. 17-03-2005, Ex. PW35/B addressed to Addl. Superintendent of Police CBI (D-38) is also signed by Shri Rishi Jha. His testimony to the above effect has gone by and large C.C. No. 26/12 05-11-2014 48 of 128 unimpeached. It can be seen that vide Ex.PW35/A and Ex.PW35/B, documents pertaining to Saving Bank Account No. 002101003797 of PW 14 Sh. Raj Kumar were sent.
12.6 PW29 Sh. A.K. Mittal who was Chief Vigilance Officer of National Small Industries Corporation on 25-01-2004 has proved letter dt. 25-01-2004, Ex.PW29/A written by him to the CBI. This witness was not cross examined by any accused and thus his testimony has gone unrebutted.
12.7 PW 46 Sh. R.P. Kaushal, IO has also testified about seizure/collection of various documents pertaining to the loan account of M/s Z.Z. Zippers Pvt. Ltd. vide the following memos/letters :-
(a) Seizure memo dated 10-08-2004, Ex. PW 30/A, vide which he has seized from PW 30 Sh. Pardeep Singh Sikka, Sr. Branch Manager, P & S B, Rajouri Garden Branch, the documents executed on behalf of M/s Z.Z. Zippers Pvt. Ltd. to avail cash credit limit and term loan viz. Ex. PW 27/A-49 to Ex.PW27/A-100,
(b) Seizure memo dated 10-08-2004, Ex.PW 30/B vide which he had seized from PW 30 Sh. Pardeep Singh Sikka, various debit vouchers/credit vouchers/cheques and other documents in respect of M/s Z.Z. Zippers Pvt. Ltd.
i.e. Ex. PW 24/A to Ex. PW 24/E, Ex. PW 24/A-102 to Ex. PW 24/A-115, Ex. PW 30/C, Ex. PW 30/D and Credit Voucher dt.4-2-2002 for Rs. 3 lakhs, Ex. PW 46/B,
c) Letter dated 15-07-2004, Ex. PW 46/E of Chief Vigilance Officer, P & S B vide which 2 original files i.e. one file, Ex. PW 46/F (Colly) of Branch Office, Rajouri Garden and one file, Ex. PW 22/A (Colly) of Zonal Office in respect of M/s Z.Z. Zippers Pvt. Ltd. were sent, C.C. No. 26/12 05-11-2014 49 of 128
d) Letter dated 11-05-2004, Ex. PW 46/G of Sh. A.K. Sood, Chief Vigilance Officer, P & S B, vide which various documents mentioned therein, including original account opening form and specimen signature card of M/s Z.Z. Zippers Pvt. Ltd., were sent to CBI,
e) Letter dated 17-05-2004, Ex. PW 46/H of Sh. A.K. Sood, Chief Vigilance Officer, P & S B, vide which 5 documents mentioned therein, including copy of loan documents of M/s Z.Z. Zippers Pvt. Ltd. and copy of conveyance deed of the property bearing Industrial Plot No. 107, Roz Ka Meo, Sohna, Gurgaon were sent.
12.8 During his cross-examination on behalf of accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora, PW 46 Sh. R.P. Kaushal stated that as per seizure memo, Ex.PW30/A, 46 documents were seized, however, he had stated about 51 exhibits, seized vide the said seizure memo. It could be because under one head/serial number more than one document could have been mentioned in the seizure memo, but the documents might have been exhibited separately. No other question has been put to PW 46 Sh. R.P. Kaushal with regard to seizure/collection of the above documents by him.
12.9 PW 46 Sh. R.P. Kaushal further deposed about :-
a) Seizure Memo dated 27-09-2004, Ex. PW 19/A vide which conveyance deed, Ex.PW19/B in respect of plot at Roz Ka Meo Industrial Area was seized from Sh. K.S. Rohilla, Sr. Manager, OBC, Gurgaon,
b) Seizure Memo, dated 07-10-2004, Ex.PW46/C vide which documents pertaining to account of Prince Generators, in HDFC Bank, West Punjabi Bagh, New Delhi i.e. Ex.PW27/A-121 to Ex.PW27/A-123, documents C.C. No. 26/12 05-11-2014 50 of 128 checklist of account opening, Ex.PW46/C-1, and statement of account of Prince Generators, Ex.PW 46/C-2 were seized from Sh. Mukul Bhasin, Sr. Sales Officer, HDFC Bank, West Punjabi Bagh, New Delhi,
c) Seizure Memo dated 17-11-2004, Ex.PW46/D vide which documents i.e. cheques/deposit slips, Ex.PW27/A-116 to Ex.PW27/A-120 in respect of above account were seized from Sh. Mukul Bhasin,
d) Seizure Memo dated 08-02-2005, Ex.PW46/I, vide which, inter-alia, Ex.PW27/B-4 and Ex.PW46/J were seized from Sh. Mukul Bhasin,
e) Letter dated 20-01-2005, Ex.PW23/A of Sh. Nandakumar V, Sr. Manager, Federal Bank, Civil Lines, Gurgaon vide which Ex. PW23/A- 1, Ex.
PW23/B-1 to Ex. PW23/B-6, Ex. PW23/C-1 to Ex. PW23/C-17 and Ex.PW1/2 were sent to CBI,
f) Letter dated 06-01-2005, Ex.PW35/A of ICICI Bank vide which documents pertaining to account of PW 14 Sh. Raj Kumar in ICICI Bank i.e. Ex.PW27/A-125 to Ex.PW27/A-127 were sent to CBI,
g) Letter dated 17-03-2005, Ex.PW35/B of Sh. Rishi Jha, Branch Manager, ICICI Bank, Sector-14, Gurgaon vide which Statement of Account and Certificate under Bankers Books Evidence Act, 1891, Ex.PW35/C and Ex.PW35/D respectively pertaining to the above account were sent to him,
h) Letter dated 22-03-2005, Ex.PW46/K of Sh. Rishi Jha vide which pay-in-slip, Ex.PW46/K-1 in respect of above account was sent,
i) Letter dated 25-01-2004, Ex.PW 29/A of Sh. A.K. Mittal, CVO, NSIC, New Delhi.
12.10 The testimonies of all the above witnesses with respect to the aforesaid documents has gone unimpeached. In view of the above evidence, C.C. No. 26/12 05-11-2014 51 of 128 there appears to be no dispute regarding the maintenance of the above documents/record in the ordinary course of business in the bank /offices and their seizure/collection, vide the aforesaid seizure memos/letters, from proper official custody.
13.1 PW 46 Sh. R.P. Kaushal has further testified that on 08-01-2005, he has obtained specimen signatures of accused No. 3, Yashpal Arora on 33 sheets, mark S-1 to S-32 and S-1/1, Ex.PW27/C-1 (Colly) in the presence of PW 18 Sh. Gurnam Singh. On 11-01-2005, he had obtained specimen signatures of accused No. 4, Saroj Arora on 9 sheets, mark S-33 to S-41, Ex.PW 27/C-2 (colly), in the presence of PW 24 Sh. Kapil Dev Sharma. He also stated about sending the questioned documents along with specimen writing/signature and admitted documents to GEQD, Chandigarh for expert opinion, vide letter dated 15-02-2005, Ex. PW27/D (Colly) and letter dated 01-03-2005, Ex.PW27/E of Sh. Piyush Anand, S.P., CBI. He also deposed that vide letter dated 24-03-2005, Ex. PW 27/F-1, GEQD, Chandigarh had sent the expert report, Ex.PW27/F (Colly) to SP, CBI. Further, vide letter dated 06-04-2005, Ex.PW27/H, GEQD, Chandigarh had sent reasons, Ex.PW27/G for the opinion, to SP, CBI. During his cross-examination, no question has been asked to PW 46 Sh. R.P. Kaushal on the above facts. Therefore, his above testimony has gone unrebutted. Moreover, accused No. 3, Yashpal Arora during his cross- examination as DW 2 has admitted that the specimen signatures Ex.PW27/C-1 (Colly) were his specimen signatures. When the evidence of PW 46 Sh. R.P. Kaushal regarding his obtaining specimen signatures, Ex.PW27/C-2 (colly) was put to accused No. 4, Saroj Arora, she only stated that the IO had obtained her signatures on blank papers at her residence and at that time, nobody was present there except her C.C. No. 26/12 05-11-2014 52 of 128 family members. Thus, she has also not denied her said specimen signatures. In view of the above evidence and admission, the argument of Ld. Defence counsel that PW 18 Sh. Gurnam Singh and PW24 Sh. Kapil Dev Sharma have not stated about taking of speciment signatures of accused persons in their presence is of no consequence.
13.2 PW 27 Sh. T. Joshi, who is Assistant GEQD, CFSL, Chandigarh has testified about the questioned documents, standard (admitted) documents and specimen handwriting and signature being received in their laboratory, vide SP, CBI letter dated 15-02-2005, Ex.PW27/D (Colly) and letter dated 01-03-2005, Ex.PW27/E of SP, CBI, on the following documents :-
a) Questioned documents Ex.PW27/A-1 to Ex.PW27/A-130, Ex.PW1/1, Ex.PW5/2, Ex.PW7/1, Ex.PW16/A, Ex.PW16/B, Ex.PW18/A to Ex.PW18/F, Ex.PW23/A1, Ex.PW23/B1 to Ex.PW23/B-6, Ex.PW23/C-1 to Ex.PW23/C-16 and Ex.PW24/A to Ex.PW24/E.
b) Admitted/Standard documents Ex.PW27/B-1 to Ex.PW27/B-14, Ex.PW5/1 and Ex.PW19/B
c) Specimen Handwriting & Signature Ex.PW27/C1 to Ex.PW27/C-5, Ex.PW5/3 to Ex.PW5/15 and Ex.PW6/1 to Ex.PW6/5 13.3 He further testified that after careful and thorough examination of the documents, he came to the conclusion which is recorded in his opinion dated 14-03-2005, Ex.PW27/F (Colly) and that the opinion/report was sent to SP, CBI vide their letter dated 24-03-2005, Ex.PW27/F-1. He has also deposed C.C. No. 26/12 05-11-2014 53 of 128 about sending reasons, Ex.PW27/G for opinion vide letter dated 06-04-2005, Ex.PW27/H. The positive opinion with respect to writings/signatures of accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora has been given in paras 2 and 5 of the Report, Ex. PW27/F (colly) as under:-
" 2. The person who wrote the blue enclosed writings and signatures stamped and marked S1, S1/1, S2 to S32, A1, A2, A4, A11 and A23 also wrote the red enclosed writings and signatures similarly stamped and marked Q1 to Q4, Q7 to Q11, Q13, Q14, Q15, Q17 to Q19, Q22, Q23, Q26, Q28, Q30, Q32, Q34, Q36, Q38, Q40, Q40A, Q42, Q42A, Q44, Q46, Q47, Q49, Q52, Q54, Q55, Q57, Q60, Q61, Q64, Q88, Q90, Q92 to Q96, Q103 to Q105, Q108 to Q118, Q120A, Q123, Q128, Q130, Q131, Q133, Q136, Q138, Q139, Q141, Q143, Q145, Q147, Q150, Q152, Q153, Q155, Q157, Q160, Q162, Q163, Q167, Q169, Q173, Q175, Q177, Q179, Q181, Q195 to Q205, Q208, Q210, Q211, Q213 to Q254, Q258, Q260, Q262, Q264, Q265, Q269, Q271, Q272, Q276, Q278 to Q280, Q282, Q285 to Q295 and Q297 to Q326."
" 5. The person who wrote the blue enclosed signatures and stamped and marked S33 to S41, A3, A5, A7, A9, A13, A15, A17, A19, A21 and A24 also wrote the red enclosed signatures similarly stamped and marked Q20, Q21, Q24, Q25, Q27, Q29, Q31, Q33, Q35, Q37, Q39, Q41, Q41A, Q43, Q43A, Q45, Q48, Q50, Q51, Q53, Q56, Q58, Q59, Q62, Q63, Q97, Q98, Q137, Q138A, Q140, Q142, Q144, Q146, Q148, Q149, Q151, Q154, Q156, Q158, Q159, Q161, Q164, Q166, Q168, Q170, Q178, Q182, Q183, Q184, Q186, Q187, Q188, Q190, Q191, Q192 and Q193."
13.4 During his cross- examination on behalf of accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora, he stated that the documents referred in his deposition were received by his office in sealed cover and all the documents were returned by his office to CBI in a sealed cover. He further stated that the names of instruments used for examination of the documents are not mentioned in his report. However, it is mentioned that various instruments were used for examination of the documents. He further stated that the documents were C.C. No. 26/12 05-11-2014 54 of 128 examined in various instruments, in original without the help of any positive or negative. In his report, he had not mentioned the documents which were photographed. However, they have a record of the same. He further testified that he had enlarged the disputed signatures and writing while examining the documents. While examining the documents in Video Spectrum Comparator, the lineage, mode, pen pressure, curvature are not seen. These are seen by hand magnifiers. He further stated that in his report, he had not mentioned about the age of the documents since it cannot be determined. When a document is examined in Video Spectrum Comparator under Ultra Violet, light, if there are any chemical erasers, the erased portion is illuminated and can be read by virtue of photo chemical reaction. He also stated that each and every document about which he had reported, was examined by him. He denied that he had given a piecemeal report and not a comprehensive report.
13.5 It can be thus seen that during cross- examination, no dent could be made in the testimony of PW 27 Sh. T. Joshi. Detailed reasons have been given by PW 27 Sh. T. Joshi for conclusions arrived at by him. As discussed in subsequent paragraphs, the opinion of PW27 Sh. T. Joshi is corroborated by other evidence with respect to the fact that both accused No. 3, Yashpal Arora and accused no. 4, Saroj Arora, who are the Directors of M/s Z.Z. Zippers Pvt. Ltd. M/s Z.Z. Zippers Pvt. Ltd., had obtained/got disbursed term loan and CC limit from P & SB, Rajouri Garden Branch, New Delhi and that the said loan amount had been withdrawn/utilized by accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora. The fact that accused No. 3, Yashpal Arora has admitted his signatures on many documents proved by PW 27 Sh. T. Joshi to have been signed by him (accused No. 3, Yashpal Arora), also lends credence C.C. No. 26/12 05-11-2014 55 of 128 to his report. His report, Ex.PW27/F (colly) can thus be safely relied upon.
14.1 PW 18 Sh. Gurnam Singh, who was posted in Rajouri Garden Branch, P & S B, has testified that Current Account No. 4149 in the name of M/s Z.Z. Zippers Pvt. Ltd. was got opened by accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora. Sh. Yashpal Arora and Saroj Arora filled in the Account Opening form in the bank in his presence and they also filled in Form No. 60 for both of them and provided one Affidavit sworn by accused No. 3, Yashpal Arora, photocopy of ration card and photocopy of Election ID of both of them. Photocopy of ration card and Election ID were signed by both of them in his presence. He further stated that the Account Opening Form, Ex. PW16/A bears his signature at point B and signatures of the Branch Manager Sh. J.S Bedi at point C. Application Form was signed by accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora at points E (Q-7) and F (Q-8) respectively in his presence. Form 60, Affidavit, photocopy of ration card and Election IDs are Ex. PW18/A to Ex. PW18/E respectively. Further, accused No. 3 and accused No. 4 had signed specimen signature card, Ex. PW16/B in his presence at points Q-1 to Q-4 as Directors. The account was authorized for opening by accused No. 2, J. S. Bedi. This account was converted into Cash Credit limit account No. 50087 at the request of the customers after receiving the sanction from the Zonal Office. During his cross- examination, he stated that all the documents were signed by the accused persons in his presence. Accused persons had only come for the opening of the account. He had verified the documents placed by the accused persons from the originals brought by them.
14.2 PW 24 Sh. Kapil Dev Sharma and PW25 Sh. Jasminder Pal Singh C.C. No. 26/12 05-11-2014 56 of 128
have also deposed about signature of Sh. J.S. Bedi on Ex. PW16/A and signature of PW18 Sh. Gurnam Singh on Ex. PW16/B. 14.3 PW 16 Sh. Rajendra Sabbarwal has testified that he has introduced Current Account No. 4149 of M/s Z.Z. Zippers Pvt. Ltd. in the name of accused Yashpal Arora and Saroj Arora. He has identified his signatures and handwriting at portion A on Ex. PW16/A. He further stated that he had introduced this account at the instance of Branch Manager and one Sh. Gurnam Singh, another officer of the Bank. The photograph of the person whom he introduced was affixed on the Account Opening Form. No lady was present near Sh. Gurnam Singh and Sh. B.S Bedi at that time. The photograph of the male is on the Form, Ex. PW16/B. The specimen signature card, Ex. PW16/B also bears his photograph and the photograph of accused No. 4, Saroj Arora. During cross examination, he admitted that no photograph was affixed on the Account Opening Form. He denied the suggestion that accused No. 3, Yashpal Arora was not present on that day along with Sh G.S. Bedi and Sh. Gurnam Singh when he introduced his account and volunteered to state that he was very much present. The statement of PW 16 Sh. Rajendra Sabharwal to the above effect has gone unrebutted.
14.4 Accused No. 3, Yashpal Arora has during his cross- examination as DW 2 admitted the signatures on the Account Opening Form at points Q-7 and Q-10 to be his signatures. In her statement under section 313 Cr. P.C, when the statement of PW 16 Sh. Rajendra Sabharwal, with regard to Account Opening Form, Ex. PW16/A was put to her, accused No. 4, Saroj Arora stated that it was a matter of record. However, she has denied the evidence of PW 18 Sh.
C.C. No. 26/12 05-11-2014 57 of 128 Gurnam Singh with regard to her signing the Account Opening Form in the Bank.
14.5 It is observed that the specimen signature card, Ex. PW16/B bears photograph of accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora. Further, Account Opening Form, Ex. PW16/A and the specimen signature card, Ex. PW16/B bear purported signatures of accused No. 4, Saroj Arora at points Q-8 and Q-9 and at points Q-3 and Q-4 respectively. However, as per the GEQD Report, Ex. PW27/F (colly), the signatures at points Q-8, Q-9, Q-3 and Q-4 have been written by accused No. 3, Yashpal Arora and not by accused No. 4, Saroj Arora.
14.6 From the evidence of PW 16 Sh. Rajinder Sabarwal and Report, Ex.PW27/F (colly), it is clear that the Current Account No. 4149 in the name of M/s Z.Z. Zippers Pvt. Ltd. was got opened by accused No 3, Yashpal Arora and he had also signed as 'Saroj Arora' on the account Opening Form as well as specimen signature card. However, in view of the above, the evidence of PW 18 Sh. Gurnam Singh to the effect that accused No. 4, Saroj Arora also signed Ex.PW16/A and Ex.PW16/B in his presence does not inspire confidence.
15.1 PW 18 Sh. Gurnam Singh further testified that request dated 17-10-2001, Ex.PW18/F of Z.Z. Zippers Pvt. Ltd., through its Director Yashpal Arora for term loan of Rs.13,22,000/- and bank guarantee facility of Rs.35 Lacs bears endorsement at point Q277 in the handwriting and signature of the then Branch Manager Shri J.S. Bedi. After receiving the request, documentation was got done by the bank from the customers and forwarded to Zonal Office for C.C. No. 26/12 05-11-2014 58 of 128 sanction. He also stated that through proceedings, Ex.PW15/A, running into four pages of the Loan Committee Meeting held on 16-01-2002 at Zonal Office, sanction was communicated to the Branch in respect of Z.Z. Zippers. During his cross - examination, nothing affecting the above statement was brought out. He denied that he is deposing falsely at the instance of senior officers.
15.2 PW 24 Sh. Kapil Dev Sharma, who was posted as Manager in Rajouri Garden Branch of Punjab and Sind Bank had not stated anything about loan application of M/s Z.Z. Zippers Pvt. Ltd. However, during his cross - examination, he stated that he had not seen any letter received in the Branch Office from Zonal Office, regarding cancellation of the loan.
15.3 PW 30 Sh. Pardeep Singh Sikka, who on 04-08-2004, was Senior Manager, Branch Incharge of Punjab and Sind Bank, Rajouri Garden Branch, New Delhi deposed that vide request letter, Ex. PW 18/F, M/s Z.Z. Zippers had requested the Bank for grant of term loan of Rs. 13.22 lacs and bank guarantee facility for Rs. 35 lacs. Vide Ex. PW 27/A-1, M/s Z.Z. Zippers had again requested the Bank, stating their urgent need of funds, for early disbursement of loan. Alongwith this request letter, the party had submitted (a) a loan application form, (b) a letter from party addressed by them to Central Bank of India, requesting them to close their account and for issuance of a no-dues certificate and other supporting documents. He further testified that request received from the party was forwarded by the Branch Office to Zonal Office, vide letter dt. 25-10-2001, Ex. PW 22/A-1. Alongwith this forwarding letter, a loan appraisal form No. 241, Ex. PW30/E was also forwarded to Zonal Office, which bears signatures of Shri J.S. Bedi at point A. Branch Office in continuation of its C.C. No. 26/12 05-11-2014 59 of 128 earlier letter, had given certain additional information to Zonal Office, vide their letter Ex. PW 22/A-3.
15.4 He further stated that Zonal Office had raised certain queries vide letter dt. 31-10-2001, Ex. PW 22/A-2. Vide letter dt. 15-11-2001, M/s Z.Z. Zippers had requested the Bank for grant of Cash Credit Limit to them instead of the Bank Guarantee. This request of the party was forwarded by the Branch to Zonal Office, vide letter, Ex. PW 22/A-4. He also testified that vide letter dt. 01-12-2001, Ex. PW30/F of the Zonal Office addressed to Branch Office, Term Loan and Cash Credit Limit was sanctioned in favour of M/s Z.Z. Zippers.
15.5 He also deposed that vide letter dt. 26-12-2001, Ex. PW30/H, Zonal Office had cancelled the loan. Letter dt. 31-12-2001, Ex. PW30/I, written by Shri J.S. Bedi, Branch Manager, to Zonal Office, requesting them to recall the cancellation of loan bears signatures of J.S. Bedi at point A. He also testified that thereafter, Zonal Office vide their letter, dt. 10-05-2002, Ex. PW30/J asked the Branch Office to furnish certain information regarding M/s Z.Z. Zippers. Vide letter, copy of which is Ex.PW30/K, written by Shri J.S. Bedi to Swarn Singh, General Manager, Zonal Office, it was intimated that Branch Office had permitted the party to avail the limit.
15.6 He further deposed about receiving information in the year 2004, regarding auction of property of M/s Z.Z. Zippers at Gurgaon, his going alongwith his Loan Officer Mr. S.B. Vyas, to the said property in Gurgaon, finding that the said property was being auctioned by auctioneer from Chandigarh, DRT, his learning that M/s Z.Z. Zippers had already mortgaged this C.C. No. 26/12 05-11-2014 60 of 128 property with Oriental Bank of Commerce, filing " Objection Petition" with DRT Chandigarh, obtaining search report in respect of the said property from M/s Jagjeet Singh & Company, Chartered Accountants, informing Zonal Manager vide his letter dt. 27-01-2004, Ex. PW30/P, an officer deputed by the Head Office inspecting the said account and submitting his report, Ex. PW 30/Q, Zonal Office reporting the matter to its Vigilance Branch and an officer from Vigilance Branch of Zonal Office, inspecting the records and giving his report dt. 12-16th February 2004, Ex. PW 32/A. 15.7 During his cross- examination, he admitted that this loan was neither sanctioned nor disbursed during his tenure with Rajouri Garden and that this loan was sanctioned by DGM. He further admitted that as this loan was sanctioned by DGM, it could have been cancelled only by him. He further stated that to his knowledge, there is no letter received from the Zonal Office to the Branch Office intimating them about resanctioning of the loan or revocation of the cancellation of loan vide letter dated 26-12-2001. He further stated that since letter, Ex.PW30/K is tagged with the Zonal Office file, therefore, it must have been received by Zonal Office. It is not necessary that every letter sent by Branch Office to Zonal Office should bear a dispatch number. He denied that Ex.PW30/K is a manipulated document, photocopy of which was subsequently placed in the zonal file. He admitted that generally no loan is sanctioned or disbursed on oral sanctions.
15.8 PW 22 Sh. Shailender Chawla, Manager Loans in Zonal Office, P & SB, Ashram Chowk, Siddhartha Enclave, New Delhi from 10-11-1998 to 30-06-2002 has deposed that he was looking-after the processing of loan C.C. No. 26/12 05-11-2014 61 of 128 proposals of around 15-20 Branches located in Delhi, out of which one was Rajouri Garden Branch. File, Ex.PW22/A (Colly) is of Zonal Office and pertains to the loan proposal of Z.Z. Zippers Pvt. Ltd. pending in Rajouri Garden Branch. He has dealt with this file. At that time, Mr. J.S. Bedi, Senior Manager was the Branch Incharge of Rajouri Garden Branch. Accused No. 1, Sardar Swarn Singh, General Manager was the Zonal Manager, Sardar Sukhwant Singh was the Deputy General Manager, Mr. J.B.S. Bedi was Asstt. General Manager and Mr. Subhash Aggarwal was Sr. Manager, Loans in Zonal Office. He can identify the handwriting and signatures of the aforesaid officers as he has worked with them and has seen them writing and signing. He can also identify the signature of Shri J.S. Bedi, Branch Incharge of Rajouri Garden Branch as he had received official communication from him in his official course of duty.
15.9 He further stated that Loan proposal of Z.Z. Zippers was received in the Zonal Office on 30-10-2001 vide Branch letter dated 25-10-2001, Ex.PW22/A1, alongwith relevant documents. The proposal was scrutinized and processed by him and certain queries were raised by him. He wrote a letter dated 31-10-2001, Ex.PW22/A-2 to the Branch Manager, Rajouri Garden. Reply from the Branch was received vide letters dated 05-11-2001 and 15-11-2001, Ex. PW22/A3 and Ex.PW22/A4. Thereafter matter was placed in the Loan Committee meeting dated 16-11-2001. Accordingly, a note, Ex.PW22/A5 for sanction of the loan/limits was prepared by him on 22-11-2001 and was put up for approval. It bears signatures of AGM, Mr. J.B.S. Bedi at point B and that of Deputy General Manager, Mr. Sukhwant Singh, at point C. In Ex. PW 22/A5, there is reference of Loan Committee meeting at encircled portion X. He also stated that the Loan Committee meeting at Zonal Office, is attended by Zonal C.C. No. 26/12 05-11-2014 62 of 128 Manager, DGM, AGM, Sr. Manager, Subhash Aggarwal and Manager Loan (i.e he) and others namely Mr. R.S. Saini, Mr. C.S. Sobti, Mr. Inderjeet Chawla & others of the same Zonal Office, processing the loan proposals of branches allocated to them.
15.10 PW 22 Sh. Shailender Chawla also testified that sanction note Ex.PW22/A5 was approved by DGM at point C with remark, " dealing hand to visit the unit" , at encircled portion Y. He was the dealing hand. Accordingly, he visited the unit on 27-11-2001 and prepared a note on 28-11-2001, Ex.PW22/A-6. Thereafter, on 29-11-2001, a note at portion Z was written by him on Ex. PW 22/A5. This note bears signature of AGM and the then DGM at point B1 & C1. After discussion with GM, the limit was to be sanctioned in full but to be released in stages as per the note at point Z. 15.11 He further stated that he had put up note dated 19-12-2001, Ex. PW 42/B, in file, Ex. PW 22/A (colly.) to his senior Shri Subhash Aggarwal, reporting therein that the brother and sister in law of the Directors of Z.Z. Zippers Pvt. Ltd. were partners of M/s Pinki Zips and that a criminal case is pending at DRT. He further reported that the Branch Manager had been advised on phone not to release the loan and title deeds of properties and he had confirmed that loan had not been released. Ex. PW 42/B bears signatures of Shri Subhash Aggarwal at point B, signatures of Shri Sukhwant Singh, Deputy General Manager at point C and Shri Swarn Singh, General Manager at point D. Thereafter, a letter, dated 26-12-2001, Ex.PW30/H was written to the Branch Manager. The Branch Manager was advised to treat the sanction as cancelled and to submit as to when and how he had come to know about the above facts.
C.C. No. 26/12 05-11-2014 63 of 128 15.12 He also testified that vide letter dated 31-12-2001, Ex.PW30/1
addressed to the Zonal Manager, P & SB, the Branch Manager had requested to release the limit since he had pursued the party to liquidate the account of Pinki Zips. On the said letter, he made an endorsement at point B recommending that the matter be discussed in the Loan Committee meeting. Four pages of the proceedings of the Loan Committee meeting held on 16-01-2002 in the chamber of General Manager, Ex. PW 15/A, are the first page and page No.s 11, 12 and
13. It bears his signatures at point C on page 13 and his initials at page 12 at point mark H. Photocopy of the proceedings of the Loan Committee meeting held on 16-01-2002 running into 13 pages, is Ex.PW31/A. It bears his signatures at point B on page 13 and his initials are at point B1 on page 12. Page No.s 1, 11, 12 and 13 of Ex. PW 31/A are the copies of Ex. PW 15/A. Ex. PW 31/A is copy of the original proceedings. He also deposed that in the meeting held on 16-01-2002, it was decided to confirm the action of the Branch Manager since the Branch Manager had already released the loan to M/s Z.Z. Zippers Pvt. Ltd. He also stated that the Branch Manager of Rajouri Garden Branch, Mr. J.S. Bedi had telephonically informed that he had already released loan to M/s Z.Z. Zippers Pvt. Ltd. and he had also written a letter in this regard and spoken to the General Manager. Pursuant thereto, the meeting was held.
15.13 PW22 Sh. Shailender Chawla further testified that in letter dated 03-01-2002, Ex.PW30/DX of the Branch Manager, Rajouri Garden addressed to the Zonal Manager, Punjab & Sind Bank, while referring to his earlier letter dated 31-12-2001 and his discussion with the Zonal Manager, the Branch Manager has informed that he has allowed the party to avail Rs. 15,00,000/- C.C. Limit and C.C. No. 26/12 05-11-2014 64 of 128 Term Loan of Rs.13,00,000/- after having permission from the Zonal Manager and sought confirmation of his action. The said letter bears the " Dak Received"
stamp of the Zonal Office dated 18-05-2002. He further stated that during those days, he was sent to Chawri Bazar Branch to help the Branch Manager in the Branch matters. He used to be called by the Zonal Office whenever they required and particularly whenever Loan Committee meeting was held. In his absence, the " Dak Received" must have been lying unattended. When he used to come to the Zonal Office, he used to attend to the important Dak. He does not know as to how the letter dated 03-01-2002 bears the stamp of " Dak Received" dated 18-05-2002.
15.14 During his cross- examination, when asked as to whether he had sent minutes of the Loan Committee meeting held on 16-11-2001, along with the appraisal note, PW Sh. Shailender Chawla stated that there was no such practice in the Zonal Office. He denied the suggestion that letter dated 26-12-2001, Ex.PW30/H was not dispatched from the Zonal Office. He admitted that in the minutes, Ex.PW15/A, he had referred to letter, dt. 27-12-2001 of Rajouri Garden Branch for amendment of the sanction. He could not say as to how Ex. PW 30/K was placed in the file of Zonal Office. He also stated that the minutes of the meeting held on 16-01-2012 were compiled by Sh. Subhash Aggarwal, Sr. Manager. DGM was required to put up the said minutes before accused Swarn Singh. As far as he remembers, accused Swarn Singh had not missed any meeting of the Loan Committee. At times, he used to come late and would ask whether the proposal had been discussed. After sanction of the loan, GM is not supposed to see each and every note and thus, all the notes are not put up to GM. He further stated that although, the banking guidelines requires C.C. No. 26/12 05-11-2014 65 of 128 all loans to be sanctioned in writing, in practice, majority of the loans are approved telephonically and the action of the Branch Manager is also confirmed verbally and later on, such sanctions/approvals are reduced into writing. Approval of the competent authority is taken in all the cases in writing whether before the loan is released or it is ex-post facto sanction. He also deposed that accused No. 3, Yashpal Arora, accompanied him to the site. The branch manager was telephonically instructed to arrange for the site visit along with the concerned party. This is the normal procedure in the bank. As far as he remembers, when he visited the site, the factory was closed. He had inquired from accused No. 3, Yashpal Arora regarding the attendance register etc. He had gone inside the factory. It was not functional since there was no power and some old stock was lying there.
15.15 PW 42 Sh. Subhash Aggarwal, posted as Sr. Manager, Zonal Office, P & SB in the year 2001-2002, deposed that vide letter dt. 25 th Oct. 2001, Ex. PW22/A-1, Branch Office, Rajouri Garden had sent loan proposals of M/s Z.Z. Zippers Pvt. Ltd. The Zonal Office vide letter dated 31/10/2001, Ex. PW 22/A-2 had sought certain clarifications from the Branch Office. Branch Office vide letter dt. 05-11-2001 Ex. PW 22/A-3 replied to the queries. In continuation of the above letter, the Branch Office again wrote a letter dated 15-11-2001, Ex. PW 22/A-4, vide which the Branch Office requested that instead of bank guarantee limit, cash credit limit may be sanctioned. On 22-11-2001, Zonal Office processed the loan proposal and put up the case to the Dy. General Manager, who was the competent authority. The appraisal note dated 22-11-2001, Ex. PW 22/A-5 bears signatures of the Manager, Shri Shailender Chawla at points 'A' and 'A-1', Shri J.B.S. Bedi, Asst. General Manger at points C.C. No. 26/12 05-11-2014 66 of 128 'B' and 'B-1' and Shri Sukhwant Singh, Dy. General Manager at point 'C' and 'C-1'. He further testified that on 24-11-2001, Shri J.B.S Bedi, AGM, had vide letter dated 24-11-2001, office copy of which is Ex. PW42/A, directed Shri Shailender Chawla, Manager to visit the unit of M/s Z.Z. Zippers Pvt. Ltd. On 28-11-2001, Shri Shailender Chawla submitted his report, Ex. PW22/A-6 regarding visit to the unit.
15.16 He also testified that on 19-12-2001, Shri Shailender Chawla reported that brother and sister in law of the Directors of M/s Z.Z. Zippers Pvt. Ltd., were partner of M/s Pinki Zips , against whom the bank has filed a criminal case which was pending in DRT, the Branch Manager, Rajouri Garden had been telephonically advised not to release the loan and the Branch Manager had also confirmed that the loan had not been released. The said note was put up to him and he recommended to the G.M. to stop or cancel the sanction and to ask the Branch Manager to submit his report on the case as to why the above facts did not come to his notice. The noting sheet pertaining to above two notes is Ex. PW 42/B which bears signatures of Shri Shailender Chawla at point 'A', his signatures at point 'B' and the signatures of D.G.M. are at point 'C'. The D.G.M had marked the note to G.M. accused No. 1, S. Swarn Singh, who signed at point 'D'.
15.17 He further deposed that Branch Office Rajouri Garden sent a letter dt. 27-12-2001, Ex. PW42/C, enclosing therewith letter dt. 27-12-2001 of M/s Z.Z. Zippers Pvt. Ltd., wherein it was stated that they would arrange additional security of Rs.17 lakhs to the Bank's satisfaction. The Branch Manager recommended to amend the sanction accordingly and sought permission for C.C. No. 26/12 05-11-2014 67 of 128 further action. The said letter was received in the Zonal Office on 28-12-2001. Branch Office again wrote a letter dated 31-12-2001, Ex. PW42/D, enclosing therewith another letter dated 31-12-2001 of M/s Z.Z. Zippers Pvt. Ltd. and sought guidance. The said letter was received in the Zonal Office on 31-12-2001. On 01-12-2001, the Zonal Office had released the sanction in respect of M/s Z.Z. Zippers Pvt. Ltd., signed by A.G.M to the Branch Office Rajouri Garden for a sum of Rs. 48 lakhs. The same is Ex. PW 30/F. 15.18 He also stated that on 31-12-2001, the Branch Manager wrote letter, Ex. PW 30/I to the Zonal Office stating that Shri Deepak Arora, Director of M/s Pinki Zips had assured to liquidate the account and requested that sanction in respect of M/s Z.Z. Zippers Pvt. Ltd. be released. On this letter, Shri Shailender Chawla had given a noting that the matter be discussed in a Loan Committee meeting. His endorsement on the said letter is at point 'B'. Vide letter dated 03-01-2002, Ex. PW 30/D-X, the Branch Manager sought confirmation of his action of having allowed the party to avail Rs.28 lakhs after having Zonal Manager's permission. The said letter was received in the Zonal Office on 18-05-2002 as per the receipt stamp.
15.19 He further testified that on 16-01-2002, Loan Committee meeting was held in the Zonal Office in which about 24 loan proposals were discussed. He had attended the meeting. The minutes of the committee meeting, Ex. PW 31/A bears his signatures at point 'F'. As per practice, the Dealing Managers had signed against their loan proposals on Ex. PW 31/A. In case of M/s Z.Z. Zippers Pvt. Ltd., Shri Shailender Chawla, the Dealing Manager has signed the minutes. At that time, in the Zonal Office, there was two tire system, wherein, C.C. No. 26/12 05-11-2014 68 of 128 both the General Manager and Dy. General Manager were the sanctioning authorities upto different amounts. He also stated that letter dt. 03-01-2002 received from the Branch was discussed in the Loan Committee meeting dt. 16-01-2002. Although, it bears stamp dt. 18-05-2002, it must have been received earlier.
15.20 During his cross- examination, PW 42 Sh. Subhash Aggarwal testified that after the loan was cancelled, the sanction letter was not called back to the Zonal Office but it remained with the branch manager. The Branch Manager did not intimate them that he had noted the cancellation of the loan. However, he continued to request the Zonal Office for release of the loan amount. The branch manager only asked for modification of the loan sanctioned but he never requested for restoration of the original sanction of the loan. Ex.PW30/H bears dispatch No. 1536. He further stated that after the decision to cancel the sanction to M/s Z.Z. Zippers was taken on 19-12-2001, there was no communication from the Zonal Office to the Branch Office for grant of sanction. He further stated that as per record, no note for the action confirmation based on letter dated 03-01-2002 was put to the competent authority. Accordingly, no letter of confirmation was written by the Zonal Office to the Branch Office. The branch manager never reminded the Zonal Office to confirm his action as earlier requested vide his letter dated 03-01-2002. He also stated that in the entire record pertaining to M/s Z.Z. Zippers Pvt. Ltd., signatures of accused No. 1, Swarn Singh appears only at point D on Ex.PW42/B. He admitted that the noting of PW 22 Sh. Sahilender Chawla dated 31-12-2001 on the Branch Office letter dated 31-12-2001, Ex.PW30/I was neither put up to him nor to any senior officer of the Zonal Office. Letter dated 03-01-2002, Ex.PW30/DX does not bear C.C. No. 26/12 05-11-2014 69 of 128 any noting of the Zonal Office. Ex.PW30/K is a photocopy of the office copy of letter dated 03-01-2002 of Branch Office, Rajouri Garden, addressed to accused No. 1, Swarn Singh. The original letter addressed to accused No. 1, is not in the file. He cannot say whether the said letter was received in the Zonal Office or not. They had not received any reply to letter dated 26-12-2001, Ex.PW30/H from Rajouri Garden Branch. The Zonal Office had never reminded Rajouri Garden Branch to reply to the Zonal Office letter dated 26-12-2001 Ex.PW30/H. He further stated that if sanction for loan is cancelled before disbursement, the loan cannot be disbursed on oral permission or on the basis of any discussion.
15.21 PW 45 Sh. Sukhwant Singh, Deputy General Manager, Punjab & Sind Bank, Zonal Office, New Delhi at the relevant time, deposed that he was second Incharge of the Zonal Office. Accused No. 1, Swarn Singh, was the Zonal Head i.e. General Manager. In August 2004, He had dealt with the account of M/s Z.Z. Zippers Pvt. Ltd. during his posting as Deputy General Manager, Zonal Office, New Delhi. He further deposed that he has seen the Zonal Office file of M/s Z.Z. Zippers Pvt. Ltd., Ex.PW22/A, (colly). Ex.PW30/E in this file is the loan application form of M/s Z.Z. Zippers Pvt. Ltd. submitted to Rajouri Garden Branch. Ex.PW22/A-5, which is the process note of Zonal Office, was initiated by Sh. Shailender Chawla and put up to Sh. J.B.S. Bedi, Assistant General Manager. Then it was put up to him. Ex.PW22/A-5 bears signatures of Sh. Shailender Chawla at points A & A1, signatures of Shri J.B.S. Bedi at points B & B1 and his signatures at points C & C1. Vide this proposal, term loan of Rs.13,00,000/- and hypothecation CC limit of Rs.35,00,000/- was approved by him. He further stated that while sanctioning the above loan, he had directed the dealing hand to visit the Unit. His endorsement in this regard is C.C. No. 26/12 05-11-2014 70 of 128 at point Y on Ex.PW22/A-5. The Unit was accordingly visited. Thereafter, Sh. Shailender Chawla has again put up a note on Ex.PW22/A-5 referring to the advice/suggestion given by the General Manager regarding release of limit in stages.
15.22 He also stated that later it was learnt that brother and sister in law of the directors of M/s Z.Z. Zippers Pvt. Ltd. were also partners in M/s Pinki Zips who were defaulter and their account had become NPA. Accordingly, a note was again put up by Sh. Shailender Chawla, which is Ex.PW42/B which was put up to Sh. Aggarwal. Vide this note, it was proposed that the sanction in case of M/s Z.Z. Zippers Pvt. Ltd. be stopped/cancelled and to ask the Branch Manager to submit report as to why this fact did not come to his notice. Ex.PW42/B bears signatures of Sh. Shailender Chawla at point A, signatures of Sh. Aggarwal at point B, his signatures at point C and signatures of accused Swarn Singh at point D. Letter, dated 26-12-2001, Ex.PW30/H written by him to the Senior Manager, Rajouri Garden Branch, advising him to treat the sanction in respect of M/s Z.Z. Zippers Pvt. Ltd. as cancelled and to submit report on the case as to when and how he came to know the aforesaid facts, bears his initials at point A, the initials of Sh. Shailender Chawla at point B and the initials of Sh. Aggarwal at point C. Letter, dated 24-01-2002/09-02-2002, Ex. PW45/A written to the Senior Manager, Rajouri Garden branch, seeking his comments in respect of a complaint received from M/s Z.Z. Zippers Pvt. Ltd., bears his initials at point A. The complaint had been sent to the Head Office, General Manager, Zonal Office and to the Branch. He also stated that after he had written the letter, Ex.PW30/H asking the Branch Manager to treat the sanction as cancelled, the Branch had still released the loan/limit.
C.C. No. 26/12 05-11-2014 71 of 128 15.23 He further deposed that the Branch Manager sent a letter, dated
03-01-2002, Ex.PW30/D-X, addressed to the Zonal Manager, giving a reference of his discussion with the Zonal Manager and mentioning that he had allowed the party to avail Rs.15,00,000/- as CC Limit and term loan of Rs.13,00,000/- after having permission of the zonal manager. He also sought confirmation of his action. He also stated that Ex.PW30/K, is a photocopy of letter, dated 03-01-2002 addressed to accused Swarn Singh, by name, by the Branch Manager, Rajouri Garden, giving a reference of his discussion and mentioning that he had allowed the party to avail the limit as per sanction. He further testified that Ex.PW31/A is proceedings of the Loan Committee meeting held on 16-01-2002 in the chamber of accused Swarn Singh. In this meeting, accused Swarn Singh, he, Sh. Subhash Aggarwal, Sh. R.S. Saini, Loan Manager, Sh. Shailender Chawla, Loan Manager and other Loan Managers as mentioned in the proceedings of the Loan Committee meeting were present. In this meeting, 24 cases were put up, including that of M/s Z.Z. Zippers Pvt. Ltd. He further deposed that the proposal with regard to the loan account of M/s Z.Z. Zippers Pvt. Ltd. was to confirm the action of the Branch Manager wherein he had disbursed the loan with the permission of the Zonal Manager. The committee accordingly confirmed the action of the Branch Manager. However, the said confirmation was subject to compliance of indispensable requirements of bank. The confirmation was done since the Zonal Head had allowed the Branch Manager to disburse the loan. He could not have reviewed his decision to cancel the loan. He had himself telephonically advised the Branch Manager not to release the loan on 22-12-2001. He also stated that the stamp dt. 18-05-2002 might have been put on letter dt. 03-01-2002, Ex. PW30/D-X as an after thought, C.C. No. 26/12 05-11-2014 72 of 128 after he had relinquished the office and there is no surety that it was actually received on 18-05-2002.
15.24 During his cross-examination, PW 45 SH. Sukhwant Singh stated that in the Zonal Office, Zonal Head i.e. the General Manager as well as the Deputy General Manager could sanction loans up to their respective powers. He voluntarily stated that, sanction could be given only after the approval of the Loan Committee. To the question as to whether accused Swarn Singh was also given additional work of advances in the Head Office, he stated that he used to go to the Head Office. He further testified that when the appraisal note, dated 22-11-2001, Ex.PW22/A-5 was put up to him, the proceedings of the Loan Committee meeting were also put up. The appraisal note, Ex.PW22/A-5 was put up after meeting of the Loan Committee on 16-11-2001. He also stated that from the record, it appears that appraisal note, Ex.PW22/A-5 and the second noting, Mark Z thereon was not put up to accused Swarn Singh. After sending the letter dated 26-12-2001 vide which he had cancelled the sanction, he had not asked the Branch Manager to return the said sanction letter. As per his knowledge, there was no such procedure. He volunteered to state that based on the said sanction letter, the party has made complaints. In Ex.PW22/A (colly), there is no reply from the Zonal Office to the letter, dated 27-12-2001, Ex. PW42/C of the Branch Office, Rajouri Garden. He denied that the letter, dated 26-12-2001, Ex.PW30/H was subsequently planted in the record of Branch Office or that it was never dispatched to the Branch. He also testified that he does not know as to how letter, dated 03-01-2002, Ex.PW30/D-X came to bear receipt stamp, dated 18-05-2002 of the Zonal Office. The stamp, dated 18-05-2002 might have been put as an afterthought after he had relinquished C.C. No. 26/12 05-11-2014 73 of 128 the office and there is no surety that it was actually received on 18-05-2002. He further deposed that the convener of the Loan Committee meeting would have drafted the minutes of the meeting dated 16-01-2002 as per the past practice. For that meeting, Sh. Subhash Aggarwal was the convener. The convener of the meeting is supposed to get the same signed from all the members. The concerned Manager can also get the minutes signed. He denied that neither accused Swarn Singh nor Sh. Shailender Chawla were present during the meeting of Loan Committee held on 16-01-2002 or that the case of M/s Z.Z. Zippers Pvt. Ltd. was not discussed in the said meeting or that the same was added later on. He further stated that as far as he remembers, no note was put up either to him or to accused Swarn Singh pursuant to decision taken in the meeting dated 16-01-2002.
15.25 PW15 Sh. Rajesh Malhotara, posted as Manager in Zonal Office of Punjab and Sind Bank, Siddarth Enclave, New Delhi from 1998 to 2002 has also testified about the meeting of the Loan Committee meeting held on 16-01-2002.
15.26 PW31 Sh. Charan Pal Singh, posted in Punjab & Sind Bank at Zonal Office, New Delhi from 1993 to 2004 as an Officer, also deposed about his attending the meeting dt. 16-01-2002 and the proceedings, Ex. PW15/A bearing his signature at point E. During his cross - examination, he, inter-alia, stated that it was duty of Mr. Shailender Chawla to prepare the minutes of the meeting of the Loan Committee held on 16-01-2002 and to get the minutes signed from the members of the committee. He admitted that General Manager did not hold the meetings of the Loan Committee of the Zonal Office on 20-05-2002 and 27-06-2002, Ex. PW31/D-A and Ex. PW31/D-B. He also C.C. No. 26/12 05-11-2014 74 of 128 admitted that minutes of the Loan Committee meeting do not amount to sanction of the loan and that the minutes are not sent to the Branch Office. The dealing hand writes letter to the Branch Manager about the confirmation of the action on the basis of the minutes after the same is approved by the competent authority. He admitted that on Ex. PW15/A, his name is not typed.
15.27 PW41 Sh. Randhir Singh Saini, Manager, P & SB, Zonal Office, New Delhi also deposed about his attending the meeting dated 16-01-2002 and signing the minutes, Ex. PW 13/A (sic PW31/A) at four places, marked, A-1 to A-4. During his cross- examination, he deposed that Loan Committee can only recommend the sanction of loan. It has no power to sanction the loan. Zonal Manager was empowered to sanction loans. He denied that the action confirmation requests were not discussed in the Loan Committee. While putting up the appraisal notes, he had not put up the minutes of the meetings in which the loan proposals were recommended. However, in the appraisal notes it is mentioned that the loan proposals had been recommended by the Loan Committee. In the instant case, he had prepared minutes of the first four cases mentioned in Ex. PW 13/A (sic Ex. PW31/A) and the consolidated minutes i.e. Ex. PW 13/A (sic Ex. PW31/A) were prepared by Shailender Chawla.
15.28 PW20 Sh. Inderjeet Chawla, posted as Manager in Zonal Office of P & S B w.e.f. 23-10-1998 upto May 2003 has also testified about the meeting dated 16-01-2002 and his signing the minutes at point D. During his cross examination, nothing significant was elicited.
15.29 PW 32 Sh. Kulwinder Singh, posted as Manager Vigilance in Zonal C.C. No. 26/12 05-11-2014 75 of 128
Office, P & S B from December 2003 to May 2008 has deposed about his enquiry report dt. 12/16-02-2004, Ex. PW32/A. During his cross examination, he deposed that he did not see letter of cancellation of sanction loan in the Branch Office when he visited the Branch.
15.30 PW37 Sh. Gurinder Singh Sethi, posted as a Senior Manager in CMD Secretariat, Head Office, Punjab & Sind Bank, New Delhi from Feb 2001 to November 2003, deposed, inter-alia, that he had never met any Director of the company M/s Z.Z. Zippers Pvt. Ltd. He had never rung up any Branch Manager concerning loan to M/s Z.Z. Zippers Pvt. Ltd.
16.1 Accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora had taken defence that accused No. 5, Deepak Arora had obtained their signatures on various papers but they had neither applied nor obtained any loan from the bank. It can be seen that vide letter dated 17-10-2001, Ex. PW18/F of M/s Z.Z. Zippers Pvt. Ltd, addressed to Chief Manager, P & S B, Rajouri Garden, New Delhi, accused No. 3, Yashpal Arora had requested for a term loan of Rs. 13.22 lacs and bank gaurantee facility. During his testimony as DW2, accused No. 3 Yashpal Arora has admitted his signature at points Q-278 on the letter, Ex. PW18/F. There is also no dispute that loan application dated 17-10-2001, Ex. PW27/A-2 for fund based amount of Rs. 13.22 lacs and non fund based amount of Rs. 35 lacs, in respect of M/s Z.Z. Zippers Pvt. Ltd. is signed by accused No. 3, Yashpal Arora. In his testimony as DW2, accused No. 3, Yashpal Arora has also admitted his signatures at point Q-276 on Ex. PW27/A-2. Further, M/s Z.Z. Zippers Pvt. Ltd. has also written a letter dated 23-10-2001, Ex.PW27/A-1 signed by accused No. 3, Yashpal Arora to Chief Manager, P & S B, Rajouri Garden C.C. No. 26/12 05-11-2014 76 of 128 with regard to his request for term loan of Rs.13.22 lacs and bank guarantee facility for Rs. 35 lacs. Admittedly, Ex. PW27/A-1 bears signatures of accused No.3, Yashpal Arora at point Q-279. It is also proved by GEQD Report, Ex. PW27/F (colly). Thus, there appears to be no doubt that it was accused No. 3, Yashpal Arora who had applied for loan on behalf of M/s Z.Z. Zippers Pvt. Ltd. and had submitted various documents along with the same.
17.1 It is pertinent to note that vide letter dated 02-01-2002, Ex.PW27/A-128 of M/s Z.Z. Zippers Pvt. Ltd, placed in file, Ex. PW46/F (colly), signed by accused No. 3, Yashpal Arora, inter-alia, original conveyance deed dated 09-03-1998, Ex. PW5/2 (also Ex. PW27/A-43 to Ex. PW27/A-48) was sent to the bank. As per the report, Ex.PW27/F (colly) of the GEQD, the said letter has been signed by accused No. 3, at point Q-258. In the particulars, Ex. PW 27/A-4, signed by accused No. 3, Yashpal Arora at point Q-286, submitted along with loan application form, dated 17-10-2001, Ex. PW27/A-2, there is a mention of a copy of ownership of property at 107, Roz Ka Meo Industrial Area, Gurgaon. During his cross examination as DW2, accused No.3, Yashpal Arora has admitted his signatures at point Q-286. The same is also proved by the GEQD report, Ex. PW27/F (colly).
17.2 Further, in one of the annexure, Ex. PW 27/A-11 to the loan, application Ex.PW 27/A-2, it is mentioned that the collateral security was equitable mortgage of factory land and building at 107, Roz Ka Meo, Industrial Area, Sohna, Gurgaon having area of 100 sq. mtrs. The same is signed by accused No. 3, Yashpal Arora at point Q-293. During his cross-examination, accused No. 3, Yashpal Arora, while deposing as DW 2, has admitted the said C.C. No. 26/12 05-11-2014 77 of 128 signatures and it is also proved by PW 27 Sh. T. Joshi vide his report Ex.PW27/A (Colly). There is also a reference of the said property in various other annexures to the loan application, Ex.PW27/A-2.
17.3 In letter dated 25-10-2001, Ex.PW22/A-1 of Rajouri Garden Branch vide which the loan proposal of M/s Z.Z. Zippers Pvt. Ltd. was sent to the Zonal Office, there is a reference of the party offering property of industrial unit. In the sanction note, Ex.PW22/A-5 also there is a mention of equitable mortgage of land and building of industrial shed at 107, Roz Ka Meo, Sohna in the name of the company.
17.4 PW 17 Sh. Anuj Kumar Beotra, who was working with Sh. V.P. Aneja, Govt. Approved Valuer has proved the reports, Ex.PW17/A and Ex.PW17/B. He has testified that the report was prepared by him in consultation with Mr. V.P. Aneja, after inspecting plot No. 107, Roz Ka Meo Industrial Area, Sohna Road, Tehsil and District Gurgaon and that he was taken to the site by accused No. 3, Yashpal Arora, who had also shown the relevant documents of the property. The testimony of this witness has gone unimpeached as he was not cross-examined by any accused.
17.5 Further, PW 21 Sh. Arun Duggal, who was working as panel advocate for P & S B, has given legal opinion dated 23-10-2001, Ex.PW21/A in respect of property No. 107, Roz Ka Meo, Industrial Area, Sohna, Gurgaon owned by M/s Z.Z. Zippers Pvt. Ltd. He testified that he had inspected the property at the above address and documents of the same in the Registrar Office at New Gurgaon. To both the places, accused No. 3, Yashpal Arora had C.C. No. 26/12 05-11-2014 78 of 128 accompanied him. He had filed the report with the bank. His testimony had also gone unrebutted as he was not cross-examined by any accused.
17.6 Further form No. 84-A dated 04-01-2002, Ex.PW27/A-71 of P & S B admittedly signed by accused No. 3, Yashpal Arora at point Q-92, also mentions about deposit with the bank of the documents of title of property at 107, Roz Ka Meo, Sohna. Signatures of accused No.3, Yashpal Arora at point Q-92 have also been proved by PW27 Sh. T. Joshi vide his report, Ex. PW27/F (colly). In the sanction order dated 01-12-2001 Ex.PW30/F, also there is a mention of equitable mortgage of 1000 meters industrial shed, land and building No. 107, Roz Ka Meo, Sohna. From the aforesaid evidence, it is amply clear that it was accused No. 3, Yashpal Arora who had submitted the conveyance deed, Ex. PW5/2 (also Ex.PW27/A-43 to Ex.PW27/A-48) with the Rajouri Garden Branch of P & S B. He has not only signed the aforesaid document but also accompanied PW 17 Sh. Anuj Kumar Beotra and PW 21 Sh. Arun Duggal during inspection of the property. The argument of Ld. counsel for accused No. 3, Yashpal Arora that the said document was submitted with the bank by Sh. B.P. Baranwal is thus not tenable.
17.7 It is pertinent to mention that during his cross- examination, as DW 2, accused No. 3, Yashpal Arora has admitted that letter dated 10-01-2002, Ex.DW2/PB of M/s Z.Z. Zippers Pvt. Ltd. written to the Sr. Manager, P & S B, Rajouri Garden bears his signature at point A. In the said letter, it is, inter-alia, mentioned that for purchase of DG Set, quotation of Prince Generators was earlier submitted. In Annexure i.e. Particulars, Ex.PW27/A-4 to the loan application, Ex.PW27/A-2, admittedly signed by accused No. 3, Yashpal Arora at C.C. No. 26/12 05-11-2014 79 of 128 point Q-286 also, there is a mention of Quotations for machinery etc. As per record, the proforma invoice and quotation both dated 07-01-2002 of M/s Prince Generators are Ex.PW2/1 and Ex.PW2/2 respectively. Thus, it is clear that the above documents were submitted by accused No. 3, Yashpal Arora with the bank.
17.8 It is observed that a) auditor's report, balance sheet, manufacturing trading and profit and loss account, schedule of fixed assets, list of sundary creditors and sundary debtors and schedule I to V s on 31-03-2001, Ex.PW27/A-19 to Ex. PW27/A-25, b) auditor's report, balance sheet, manufacturing trading and profit and loss account, schedule of fixed assets, and schedule I to IV, as on 31-03-2000, Ex.PW27/A-28 to Ex.PW27/A-32, and c) auditor's report, balance sheet, manufacturing trading and profit and loss account, schedule of fixed assets and schedule I to IV as on 31-03-1999, Ex.PW27/A-36 to Ex.PW27/A-40 in respect of M/s Z.Z. Zippers Pvt. Ltd. bear signatures of accused No. 3, Yashpal Arora at points Q-301 to Q-307, Q-310 to Q-314 and Q-318 to Q-322 respectively. During his cross- examination as DW 2, accused No. 3, Yashpal Aora has admitted his signatures at points Q-301 to Q-307 and Q-310 to Q-314. But he has denied signatures at points Q-318 to Q-322 to be his signatures. However, as per the GEQD report, Ex.PW27/F, all the aforesaid signatures are of accused No. 3, Yashpal Arora. Further, as per the particulars, Ex. PW 27/A-4, signed by accused No. 3, Yashpal Arora at point Q-286, he had submitted copies of audited accounts for the financial years 2000-01, 1999-2000 and 1998-1999. Therefore, it is established that the above documents were submitted to the bank by accused No. 3, Yashpal Arora.
C.C. No. 26/12 05-11-2014 80 of 128 17.9 It is pertinent to note that in the loan application, Ex.PW27/A-2, at
para 13, the name of previous banker has been mentioned as Central Bank of India, Gurgaon Branch. Accused No. 3, Yashpal Arora is also stated to have submitted letter dated 18-10-2001 of M/s Z.Z. Zippers Pvt. Ltd., Ex.PW7/1 on which Branch Manager, Central Bank of India, Gurgaon had allegedly attested signatures of accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora. In the purported endorsement of Branch Manager, Central Bank of India, it is also stated that Current account No. 2027 of M/s Z.Z. Zippers Pvt. Ltd. in the said bank stood closed, they were not having any liability in their bank and that the account operation was satisfactory. During his cross - examination as DW 2, accused No. 3, Yashpal Arora has admitted his signatures at points Q-280 and Q-282 on the said letter though he has denied the signatures of his wife on the said letter. The same is also corroborated by the report, Ex. PW 27/F of the GEQD. PW 30 Sh. Pradeep Singh Sikka also deposed that vide Ex. PW27/A-1, M/s Z.Z. Zippers had again requested the bank stating their urgent need of funds for early disbursement of loan. Along with this letter, the party had submitted, inter-alia, a letter from party addressed by them to Central Bank of India requesting them to close their account and for issuance of no dues certificate and other supporting documents. It can also be seen that letter dated 23-10-2001, Ex. PW27/A-1 admittedly bears signature of accused No. 3, Yashpal Arora at point Q-279. In this letter, it is stated, " Presently we closed the bank account with Central Bank of India, Gurgaon Branch. (A copy of closure and satisfactory operation duly given by the banker is enclosed for reference.)"
From the aforesaid, there appears to be no doubt that accused No. 3, Yashpal Arora had submitted Ex.PW7/1 to Rajouri Garden Branch of P & S B. C.C. No. 26/12 05-11-2014 81 of 128 17.10 As per letter dated 05-11-2001, Ex.PW22/A-3 of P & S B, Rajouri Garden Branch addressed to the Zonal Manager, P & S B with regard to loan application of M/z Z.Z. Zippers Pvt. Ltd., it is, inter-alia, stated that permission from HUDA to mortgage the property was enclosed. The said permission is letter dated 30-10-2001, Ex. PW 30/D. 17.11 It is also alleged that accused No. 3, Yashpal Arora, had submitted assets and liabilities statement dated 23-10-2001, Ex.PW27/A-124 and affidavit, Ex.PW27/A-81 of guarantor Sh. Sanjay Verma. In the letter dated 25-10-2001, Ex. PW22/A-1 of P & S B, Rajouri Garden Branch, New Delhi, it is stated that the party has also offered one guarantor Sh. Sanjay Verma. The affidavit, Ex.PW27/A-81 purportedly signed by Sh. Sanjay Verma is also signed by accused No. 3, Yashpal Arora at point Q-120 A. The same is admitted by accused No. 3, Yashpal Arora, during his cross- examination as DW 2, and also proved by the GEQD vide his report, Ex.PW27/F. From the above, it is clear that the assets and liabilities statement dated 23-10-2001, Ex.PW27/A-124 and affidavit, Ex. PW22/A-3 purportedly of Sh. Sanjay Verma were submitted to the Bank by accused No. 3, Yashpal Arora.
18.1 PW 5 Sh. Sanjay Joon has testified that he remained as Estate Officer, HUDA Gurgaon, Haryana till May 1998 and then from August 1998 to Sept. 1999. The conveyance deed dated 05-03-1998, Ex.PW5/1 in seven sheets, in respect of property i.e. industrial plot No. 107, Roz Ka Meo Area, Gurgaon was signed by him as an Estate Officer, HUDA, Gurgaon. It bears his signatures on each page at point A and also bears signatures of Shri Charan Singh, Asstt. of Estate Office, Gurgaon, at point B. He identifies the same since C.C. No. 26/12 05-11-2014 82 of 128 he had worked under him. Ex. PW 5/1 (also Ex.PW19/B) also bears signatures of Sh. Satish Kumar, Clerk of Estate Office, at point C and he also identifies the same. He further deposed that another copy of conveyance deed, dated 05-03-1998, Ex.PW5/2 (also Ex.PW27/A-43 to Ex. PW 27/A-48) on which his signatures have been shown as an Estate Officer does not bear his signatures. The signatures appearing on the conveyance deed at point A are not his. Somebody might have forged his signatures. Similarly, the signatures of Charan Singh, Assistant of Estate Office and Satish Kumar, Clerk of Estate Office at points B & C do not belong to them. He also stated that specimen signatures, Ex. PW5/3 to Ex.PW5/15 were obtained by the IO on 13 sheets. During his cross- examination on behalf of accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora, he stated that he was not qualified technically as an handwriting expert. However, no question has been put to him that conveyance deed, Ex.PW5/2 was executed by the Estate Officer, HUDA or that it was a genuine document. The testimony of this witness has gone unimpleached as nothing in favour of the accused persons could be elicited during his cross examination.
18.2 PW 10 Sh. Satish Kumar deposed that during 1998, he was posted as Clerk in Estate Office HUDA, Gurgaon. Ex. PW 5/1 bears his signature at point C. Ex.PW5/1 also bears the handwriting of Sh. Charan Singh, Assistant whose handwriting he identifies at point F on page 1 and also on the last page at point F. He identifies the same since he had worked with him and had seen him writing. He also identifies the signature of Sh. Charan Singh at point B and signature of Sh. Sanjay Joon, Estate Officer, at point A. Ex. PW 5/2 does not bear his signature at point C. During his cross- examination, he stated that he does not know where Ex.PW5/1 was typed. He had signed Ex.PW5/1 on C.C. No. 26/12 05-11-2014 83 of 128 05-03-1998. He does not know when Ex.PW5/1 was presented before the Sub Registrar. He did not personally go to the office of Sub Registrar at the time of registration of Ex.PW5/1. He denied the suggestion that he had made a false deposition. No question has been put to him that conveyance deed, Ex.PW5/2 was executed by the Estate Officer, HUDA or that it was a genuine conveyance deed. His testimony has also gone unrebutted.
18.3 PW 36 Sh. Charan Singh, posted as Assistant in Estate Office, HUDA, Gurgaon, deposed that Conveyance deed dated 05.03.1998, Ex. PW-19/B (also Ex. PW5/1) executed by Estate Officer, HUDA, Gurgaon in favour of M/s Z.Z. Zippers Pvt. Ltd. comprising of seven sheets, has been initialed by him on each page and signed by the Estate Officer, Shri Sanjay Joon with his official stamp on each page. On the last page of Ex. PW-19/B (also Ex. PW5/1), the execution of the deed had been witnessed by him and Shri Satish Kumar, Clerk. The particulars i.e. date, name and address of the transferee on the first page and the particulars of the witnesses on behalf of HUDA on the last page of conveyance deed, Ex. PW-19/B (also Ex. PW5/1) has been filled up in his hand by him. He further stated that Ex. PW-27/A-43 to Ex. PW-27/A-48 and Ex. PW-5/2, which is purported to be a conveyance deed allegedly executed by Estate Officer, HUDA, Gurgaon in favour of M/s Z.Z. Zippers Pvt. Ltd. neither bears his initials nor the signatures of Estate Officer, HUDA nor the signatures of Shri Satish Kumar, Clerk. It also does not bear his handwriting at any page, thereof. He has worked under Shri Sanjay Joon, Estate Officer, HUDA for about 8-10 years and have seen him writing and signing. Thus, he can say that the above document is not signed by him. He also testified that the conveyance deed Ex. PW-19/B (also Ex. PW5/1) had been registered in the office of Joint C.C. No. 26/12 05-11-2014 84 of 128 Sub Registrar, Nuh, Gurgaon since the property falls in Roz-Ka-Meo in Nuh District. The stamp paper used in Ex. PW-19/B (also Ex. PW5/1) had been purchased on 20.02.1998. Ex. PW-27/A-43 to Ex. PW-27/A-48 and Ex. PW-5/2, had not been executed by the Estate Officer, HUDA, Gurgaon. During his cross- examination, he stated that neither he nor Sh. Satish Kumar who had signed as witnesses on Ex.PW19/B had gone to the office of Joint Registrar at the time of registration of Ex.PW19/B. He does not remember as to whom Ex.PW19/B was handed over after signatures of the Estate Officer. No question has been put to him that conveyance deed, Ex.PW5/2 was executed by the Estate Officer, HUDA or that it was a genuine conveyance deed. His testimony has also gone unimpeached.
18.4 PW 9 Sh. Mohd. Ishaq deposed that in the year 1998, he was posted as Naib Tehsildar, Nuh. He remained there for a period of one year. He was transferred to Sohna in May 1999, where he worked as Joint Sub Registrar also. He also stated that Conveyance Deed, Ex.PW5/1 was registered by him on 09-03-1998. His signature appears at points D on reverse of first page on three places and on reverse of the last page at one place. He has also identified purchaser of Ex.PW5/1, whose photo is affixed on obverse of page 1 at point E as accused Saroj Arora. He further testified that Conveyance Deed, Ex.PW5/2 was not registered by him. It does not bear his signatures in any capacity. Signature of Joint Sub Registrar at point D on reverse of first page are not his. On 09-03-1998, he was Joint Registrar, Nuh. Photograph affixed at point E on obverse of front page of the purchaser on Ex. PW 5/2 is of the same person as was affixed on Conveyance Deed, Ex. PW 5/1, however, with different pose and dress. Ex.PW5/2 is not a genuine registered document. During his cross-
C.C. No. 26/12 05-11-2014 85 of 128 examination, he stated that Estate Officer, HUDA appeared on behalf of the seller when Ex. PW5/1 was registered. No question has been put to him that conveyance deed, Ex.PW5/2 was registered by him or that it was a genuine conveyance deed. His testimony has also gone unimpeached.
18.5 From the aforesaid evidence, it is amply clear that the conveyance deed, dated 05-03-1998, Ex. PW 5/2 (also Ex.PW27/A-43 to Ex. PW 27/A-48) submitted to P & S B, Rajouri Garden Branch at the time of taking loan by M/s Z.Z. Zippers Pvt. Ltd. is a forged document. The same is purported to be a valuable security.
18.6 The Conveyance Deed, Ex.PW5/2 bears purported signatures of accused No. 4, Saroj Arora at points Q-65, Q-67, Q-69, Q-73, Q-75, Q-77, Q-79, Q-81 and Q-84. It also bears purported signatures of accused No. 3, Yashpal Arora at points Q-71 and Q-83, purported signatures of Estate Officer, HUDA, Gurgaon at points Q-66, Q-74, 76, 78, 80, 82 and 85, purported signatures of the Sub Registrar, Nuh, Gurgaon at points Q-68, Q-70, 72 and Q-86, purported signatures of Sh. Rahul Arora at point Q-329 and purported signatures of Sh. Charan Singh and Sh. Satish Kumar at point Q-333. As per the GEQD report, Ex.PW27/F (colly), accused No. 4, Saroj Arora did not write the signatures at points Q-65, Q-67, Q-69, Q-73, Q-75, Q-77, Q-79, Q-81 and Q-84 and accused No. 3, Yashpal Arora did not write the signatures at points Q-71 and Q-83. It is also not the case of the prosecution that accused No. 3, Yashpal Arora or accused No. 4, Saroj Arora had written any other signature on Ex.PW5/2. Thus, there is no evidence that the conveyance deed, Ex.PW 5/2 was forged by either accused No. 3, Yashpal Arora or accused No. 4, Saroj Arora.
C.C. No. 26/12 05-11-2014 86 of 128 18.7 It is pertinent to note that proforma invoice dated 07-01-2002, Ex.
PW2/1 and Quotation dated 07-01-2002, Ex. PW2/2 of Prince Generators bear its address as " MS-11-12, Hari Nagar, Main Mayapuri Road, Phase-II, New Delhi-110064." The same have been signed purportedly by one Amit Kumar as proprietor for Prince Generators.
18.8 PW 2 Sh. Baldev Singh deposed that he is doing business in the name and style of M/s Prince Generator at D-5, Mayapuri Industrial Area, Phase-II, Delhi for the last 7/8 years. His uncle Sh. Jagmohan Singh is running business of Generators in the name and style of M/s New Prince Generators at M/S 11/12, Hari Nagar, Maya Puri Main Road, Delhi which was situated about half km away from his business premises. He further stated that proforma invoice dated 07-01-2002, Ex.PW2/A of Prince Generators in favour of M/s Z.Z. Zippers Pvt. Ltd. 107, Roz Ka Meon Industrial area, Sohna, Gurgaon for Generator set of 125 KVA under the signature of Amit Kumar was not issued by them because neither he nor his uncle was having any employee by the name of Amit Kumar. He also testified that the address mentioned in the proforma invoice, Ex.PW2/A, " M/S 11/12, Hari Nagar, Main Road, Maya Puri, Phase-II, Delhi" belongs to his uncle Jagmohan Singh. Similarly, another letter dated 07-01-2002, Ex. PW 2/2 issued on the letter head of Prince Generators bearing the address of his uncle, was not issued by them. He also deposed that he is having his account in the name of Prince Generators in ICICI Bank, Vikaspuri, Delhi. They never received any cheque for Rs.4,56,500/-, dated 21-01-2002 issued by Punjab and Sind Bank, Rajouri Garden, Delhi in favour of Prince Generators. They do not have any account in HDFC Bank, Punjabi Bagh in the C.C. No. 26/12 05-11-2014 87 of 128 name of Prince Generators. The photograph affixed on the Account Opening Form of Account No. 091200/10226 of Prince Generators is of Yashpal Arora whom he identifies. He knows him because he had once purchased an engine long back from them. No Generator for an amount of Rs.4,56,500/- was given by them to Yashpal Arora or to M/s Z.Z. Zippers. During his cross- examination, he stated that the correct address of the works of his uncle Jagmohan Singh is M/S 11/12, Hari Nagar, Main Maya Puri Road. He admitted that the address on the letters dated 07-01-02, Ex.PW2/1 and Ex.PW2/2 is mentioned as 11-12 and not 11/12, Hari Nagar, Main Maya Puri Road. He also stated that Prince Generators is not a registered firm. He is operating the accounts of Prince Generators which is his proprietorship concern. He has complete business control over the firm. No question has been put to him that Ex.PW2/1 or Ex.PW2/2 were issued by his firm or that the same were genuine. No dent could be made in his testimony during his cross-examination.
18.9 PW 4 Sh. Jagmohan Singh deposed that he is doing the business of Generators for the last 14-15 years. Earlier he was doing business in the name of M/s Prince Generators with his elder brother Sh. Balwinder Singh at D-5, Main Road, Maya Puri, New Delhi. Later on, he separated his work about 10 years back and started business in the name of M/s New Prince Generators at M/S, 11/12, Hari Nagar, Main Road, New Delhi. He also deposed that he knows Yashpal Arora as he had purchased a Generator 7-8 years back for some Gurus of Ambala. He received the payment after few hurdles. He further stated that Ex. PW 2/1 and Ex.PW 2/2 were never issued by them as no person by the name of Amit Kumar was working with them. No firm in the name of M/s Prince Generators is or was existing at MS-11/12, Hari Nagar, Main Maya Puri Road, C.C. No. 26/12 05-11-2014 88 of 128 Phase-II, New Delhi. He was not maintaining (sic account) in HDFC Bank, West Punjabi Bagh. During his cross- examination, he admitted that his business address is 11/12 and not 11-12. He further stated that the firm M/s New Prince Generators is not a registered firm. No question has been put to him that Ex.PW2/1 or Ex.PW2/2 were issued by his firm or that the same were genuine. Thus, his testimony has gone unimpeached.
18.10 In view of the above evidence, it is clear that Ex.PW2/1 and Ex.PW2/2 were not issued either by M/s Prince Generators or M/s New Prince Generators. The argument on behalf of accused no. 3, Yashpal Arora and accused No. 4, Saroj Arora that IO has not taken specimen signatures of PW2 Sh. Baldev Singh and PW4 Sh. Jagmohan Singh to check the authenticity of Ex. PW2/1 and Ex. PW2/2 is of no help as there is direct evidence of PW2 Sh. Baldev Singh and PW4 Sh. Jagmohan Singh to the effect that they have not issued the said quotation/proforma invoice. Further, the argument as to how the bank has sanctioned loan on 01-12-2001 when the above documents are dated 07-01-2002 is counter productive. It is rather for the accused persons to explain such irregularity. The said two documents are signed by one Amit Kumar as Proprietor for Prince Generators. The accused persons have not specified who was the said Amit Kumar or who has issued the said documents. Thus, it is clear that the proforma invoice Ex.PW2/1 and the quotation Ex.PW2/2 are forged documents. However, prosecution has not led any evidence to show who has forged the said documents or signed the same as Amit Kumar.
18.11 PW8 Sh. Om Prakash Saluja deposed that he is practicing as a Chartered Accountant since 1989 and he is Proprietor of the firm Kapur Banga C.C. No. 26/12 05-11-2014 89 of 128 & Co. since August 1990. The present address is 101, Balrama House, Karampura, New Delhi. Before this, it was at 2169, Main Patel Road, West Patel Nagar. When the said concern was a partnership concern, it was being run by Sh. Kamal Kapur and Subhash Banga. After that he took over as Proprietor since August 1990. There has been no person with the name N.K. Kapur in this firm. He further stated that the firm Kapur Banga & Co. never did any professional work for M/s Z.Z. Zippers Pvt. Ltd. Accused No. 3, Yashpal Arora met him once for project report, the business was never materialized and hence, no contact after that. He further stated that Auditor's report prepared on the letter head of Kapur Banga & Co. for M/s Z.Z. Zippers Pvt. Ltd. was never prepared by Kapur Banga & Co. since it is not a partnership concern and no N.K. Kapoor was ever there with the firm. Auditor's Report dated 11-09-2000 and balance sheet dated 31-03-2001, manufacturing trading and profit and loss account for the year ending 31-03-2001, schedule of fixed assets as on 31-03-2001, list of sundry creditors and sundry debtors as on 31-03-2001, schedule 1 opening stock, schedule 2 purchase and schedule 3 closing stock, which are Mark A to Mark F (also Ex. PW27/A-19 to Ex. PW27/A-25) respectively were never prepared by Kapur Banga and Co. He also deposed that similarly, Auditor's Report dated 05-09-2000, balance sheet as on 31-03-2000, manufacturing trading and profit and loss account for the year ending 31-03-2000, schedule of fixed assets as on 31-03-2000, schedule 1 opening stock, schedule 2 purchase and schedule 3 closing stock, which are Mark G to Mark K (also Ex. PW27/A-28 to Ex. PW27/A-32) respectively were never prepared by Kapur Banga & Co. Similarly, Auditor's report dated 30-06-1999 and balance sheet dated 31-03-1999, manufacturing trading and profit and loss account for the year ending 31-03-1999, schedule of fixed Assets C.C. No. 26/12 05-11-2014 90 of 128 as on 31-03-1999 schedule 1 opening stock, schedule 2 purchase and schedule 3 closing stock which are Mark L to Mark P (also Ex. PW27/A-36 to Ex. PW27/A-40) respectively were never prepared by Kapur Banga & Co. Seal affixed on all the aforesaid documents does not pertain to Kapur Banga & Co.
18.12 During his cross examination, PW 8 Sh. Om Prakash Saluja deposed that Mr. Kamal Kapoor had also led the firm before his taking over. He has been meeting Mr. Kapoor even upto the year 2005. Mr. Kapoor and Mr. Banga both are still alive and residing at Delhi. He has no knowledge about the clients of M/s Kapoor Banga and Co. He denied the suggestion that he had not owned M/s Kapoor Banga and Co., that is why, he had failed to submit any paper/document with regard to taking over of M/s Kapoor Banga and Co. No suggestion has been given to him that Ex. PW 27/A-19 to Ex.PW 27/A-25, Ex.PW27/A-28 to Ex.PW 27/A-32 or Ex.PW 27/A-36 to A-40 were signed by any N.K. Kapoor of Kapoor Banga and Co. The testimony of PW8 has gone by and large unimpeached. Accused No. 3, Yashpal Arora and accused No. 4,Saroj Arora have not been able to specify as to who was Sh. N.K. Kapoor who had purportedly signed on the aforesaid documents. The argument of the accused persons that IO has not examined Sh. Kamal Kapoor is not tenable since PW8 Sh. Om Prakash Saluja has categorically stated that he took over as proprietor of Kapoor Banga and Co. since August 1990 and the Auditors Report and Balance Sheets in question pertain to the year ending 31-03-1999, 31-03-2000 and 31-03-2001. It is, therefore, proved that the aforesaid documents are forged documents. However, there is no evidence led by prosecution as to who has signed as N.K. Kapoor or who forged the originals of the aforesaid documents.
C.C. No. 26/12 05-11-2014 91 of 128 18.13 PW 7 Sh. Prakash Chand Indora, who was posted as Manager in
Jail Road Branch of Central Bank of India, Gurgaon during the period May 1999 to May 2002 has testified that letter dated 18-10-2001, Ex.PW7/1 of M/s Z.Z. Zipper Pvt. Ltd. was never received in their Bank. The signatures appearing on the said letter does not belong to any of their officer and these are not of him. It does not bear his signatures at point A nor the stamp of their Bank at point B. The stamps used in their office are basically bilingual. He also stated that the letter dated 19-08-2001, Ex.PW7/2 does not bear his signatures at point A, and the stamp at point B appended on the said letter of Central Bank of India does not belong to their Bank since bilingual stamp was being used for official purpose. During cross- examination, he admitted that if fresh account is to be opened, the attested signatures can be used as a substitute for the introducer. He further stated that he does not have any knowledge if the bank had single language stamp in the year 2001. His testimony has gone unimpeached.
18.14 PW39 Sh. Munna Lal Singh, Sr. Manager, Central Bank of India, Gurgaon Branch from 07-08-2001 to May, 2003, testified that letter dated 18-10-2001, Ex.PW7/1 purportedly written by Z.Z. Zippers Pvt. Ltd. to the Branch Manager, Central Bank of India, Gurgaon was not received by the Gurgaon Branch of Central Bank of India. It does not bear either his signatures or signatures of the Manager of their Branch at point A. On 8-10-2001, Shri P.C. Indora was the Manager, Central Bank of India, Gurgaon Branch and he was the Senior Manager cum Branch Manager of the said Branch. The said document also does not bear seal of their bank at point B. At that time, only Hindi seals of the bank were being used. He further stated that the document, Ex. PW 7/2, which is a letter purportedly written by Z.Z. Zippers Pvt. Ltd. to the Branch C.C. No. 26/12 05-11-2014 92 of 128 Manager, Central Bank of India, Gurgaon was not received by the Gurgaon Branch of Central Bank of India. It does not bear either his signatures or signatures of the Manager of their Branch at point A. The said document also does not bear seal of their bank at point B. On 19-08-2001, only Hindi seals of the bank were being used. He also testified that they were taught about handwriting comparison in the training and he has also got experience in this field. During his tenure as Branch Manager at Gurgaon, he had never seen any file of Z.Z. Zippers Pvt. Ltd. At that time there were many stamps in the Bank, however, all were in Hindi. During his cross-examination, nothing in favour of the accused persons could be elicited. No suggestion was given to him that attestation/ endorsement on Ex.PW7/1 was genuine. His testimony has thus gone unrebutted.
18.15 PW43 Sh. S.K. Bhasin, who was posted as Sr. Manager, Central Bank of India, Gurgaon Branch in October 2003 has generally supported the testimonies of PW 7 PW 7 Sh. Prakash Chand Indora and PW 39 Sh. Munna Lal Singh that during 2001, the rubber stamps of the bank were bilingual.
18.16 Accused persons have not specified/identified the persons who has signed at points 'A' on Ex. PW7/1 or Ex. PW7/2. From the aforesaid evidence, it is clear that attestations/ endorsements on Ex.PW7/1 and Ex. PW 7/2 are forged. It is these endorsements/signatures which make the documents forged. However, no evidence has been led by the prosecution to show as to who had made endorsement and signed purportedly on behalf of Central Bank of India, Gurgaon on the said documents.
C.C. No. 26/12 05-11-2014 93 of 128 18.17 PW3 Sh. Virender Singh, Assistant in the office of Estate Officer,
HUDA, Gurgaon has testified that letter dated 30-10-2001 purportedly signed on 31-10-2001, Mark A (also Ex. PW30/D) was not issued from HUDA Office, Gurgaon due to the reason that it does not bear the signatures of Sh. Pradeep Dagar who was posted as Estate Officer during the said period. He further stated that letter dated 22-04-1998, Ex.PW3/1 issued in favour of M/s Z.Z. Zippars was issued from their office and he handed over an attested copy of the same. He recognized the signatures of Sh. Girdhar who was working as Superintendent in his office at point A. During his cross- examination, PW 3 Sh. Virender Singh deposed that Sh. Pradeep Dagar is still in the employment of Haryana Govt. He cannot say whether IO had investigated about the whereabouts of Sh. Pradeep Dagar from the concerned officers/department in his presence. He also cannot say whether IO collected any sample of the writing and signatures of Sh. Pradeep Dagar from the department concerned. He admitted that as a matter of procedure, the letters submitted with the bank are to be verified from the office of HUDA but in this case, as per record, no verification was done by the bank.
18.18 The testimony of PW 3 Sh. Virender Singh has gone unimpeached. The argument that prosecution has not examined the author of Ex. PW30/D Sh. Pradeep Dagar is not of much help to the accused persons since PW3 Sh. Virender Singh, who was acquainted with the handwriting and signature of Sh. Pradeep Dagar, had deposed that said document does not bear the signature of Sh. Pradeep Dagar. In this regard, a reference can also be made to section 47 of the Indian Evidence Act, 1872 according to which opinion of any person acquainted with the handwriting of the person by whom it is supposed to be C.C. No. 26/12 05-11-2014 94 of 128 written or signed or that it was or was not written or signed by that person is a relevant fact. Further, the fact that conveyance deed, Ex.PW5/2 submitted by accused No. 3, Yashpal Arora in respect of property No. 107, Roz-ka-Meo, Sohna was forged also leads to the inference that letter dated 31-10-2001, Ex.PW30/D, vide which permission was purportedly given to mortgage the said property is also forged. Thus, there appears to be no doubt that letter dated 31-10-2001, Ex.PW30/D is a forged document. Again, no evidence has been led by the prosecution to show as to who has signed Ex. PW30/D as Estate Officer or forged the said document.
18.19 It is pertinent to note that in the assets and liabilities form, dated 23-10-2001, Ex.PW27/A-124 of the purported guarantor Sh. Sanjay Verma, S/o Sh. Rajender Prasad Verma, his business address has been given as 3478/80, Gali Kartar Singh, Aryapura, Subzi Mandi, New Delhi and his residential address has been given as BG - 6/212 B, Paschim Vihar, New Delhi. PW6 Sh. Sanjay Verma S/o Sh. Rajender Prasad Verma, R/o 3478/C/80/Gali Kartar Singh, Aryapuram, Subzi Mandi, Delhi deposed that he is doing the business of jewellery at Sabzi Mandi for the last 12-13 years. He does not know anybody with the name of Yashpal Arora and Saroj Arora. He never signed any guarantee documents in Punjab National Bank. Address mentioned as BG-6/212-B, Paschim Vihar, New Delhi does not belong to him. Signatures appearing on the guarantee papers, Mark A and Mark B as Sanjay Verma do not belong to him. Signatures as Sanjay Verma at point A are not his. His signatures were obtained by the CBI. The same are Ex. PW 6/1 to Ex. PW 6/5. During his cross- examination, nothing in favour of the accused persons could be elicited. No suggestion has been given to him that he stood as a guarantor for the loan of C.C. No. 26/12 05-11-2014 95 of 128 M/s Z.Z. Zippers Pvt. Ltd.
18.20 PW33 Sh. Vinod Sabharwal deposed that he was living with his father at 43B Single Storey Houses, Ramesh Nagar, New Delhi and from there they had shifted to B-169, Mansarovar Garden in the year 1979. He knows accused No. 3, Yashpal Arora and accused No. 5, Deepak Arora, who were real brothers. They were their neighbours at Mansarovar Garden. They were having business in chemicals in the name of Shanti Chemicals. Around the year 1986, they had shifted from Mansarovar Garden to Malviya Nagar alongwith his father. He further stated that on assets and liabilities form dt. 23-10-2001, Ex. PW27/A-124 of Punjab & Sind Bank, his photo is affixed at point X. He had not given this assets and liabilities form in Punjab and Sind Bank or anywhere else. The signatures at point A are not that his. He cannot identify or tell whose signatures are these. While he was living at Mansarovar Garden he had given his three photographs to Mr. Yashpal Arora for the purpose of getting his driving licence prepared, but he did not get his licence prepared and did not return his photographs. The photograph affixed at point X must be one of those photographs, which the accused had misused without his authority. The assets and liabilities mentioned in Ex. PW 27/A124 have no connection with him at all. He also stated that he had not stood as a guarantor for accused No. 3, Yashpal Arora in any case. He had never gone with him to Punjab & Sind Bank, Rajouri Garden. He had not signed any document as a guarantor with respect to accused Yashpal Arora. He had not given any affidavit with respect to accused Yashpal Arora. He does not know any Sanjay Verma. He also stated that the assets and liability form, Ex. PW 27/A-124 does not bear his hand writing or signature. He has no connection whatsoever with the said form. During his C.C. No. 26/12 05-11-2014 96 of 128 cross- examination, he denied that signatures on the form Ex.PW27/A-124 were his signatures. He also denied that he had given guarantee or affixed his photograph on the said form. He also denied that he had not given his photograph to accused No. 3, Yashpal Arora. He also stated that in the year 1986, he was 30 years old.
18.21 In view of the above evidence, there appears to be no dispute about the identity of PW 33 Sh. Vinod Sabharwal or the fact that his photograph is affixed on Ex.PW27/A-124, which is a purported statement of assets and liabilities of Sh. Sanjay Verma as a guarantor. It is thus, amply clear that the said document is a forged document. The said document has been signed as Sanjay Verma at points Q-274 and Q-275. However, there is no evidence led by the prosecution as to who has signed as Sanjay Verma on the said document or who has forged the said document.
18.22 Similarly Ex. PW27/A-81, which is a purported affidavit of Sh. Sanjay Verma has been signed as Sanjay Verma at points Q-119 and Q-120. It is also signed by accused No. 3, Yashpal Arora at point Q-120-A. During his cross examination as DW2, accused No.3, Yashpal Arora has admitted his signatures at point Q-120-A. The same has also been proved by PW27 Sh. T.Joshi vide his report, Ex. PW27/F (colly). However, prosecution has not been able to prove as to who has signed at points Q-119 and Q-120 as Sanjay Verma.
19.1 PW27 Sh. T.Joshi has vide his report, Ex. PW27/F (colly) proved that the following loan documents, which were handed over by PW30 Sh. Pradeep Singh Sikka to PW46 Sh. R.P.Kaushal, were executed by accused No. C.C. No. 26/12 05-11-2014 97 of 128 3, Yashpal Arora and accused No. 4, Saroj Arora :-
i) Form No. 14, Ex. PW27/A-49, signed by accused No. 3, Yashpal Arora at point Q-19 and by accused No. 4, Saroj Arora at point Q-20,
ii) Form No. 412, Ex. PW27/A-50, signed by accused No. 3, Yashpal Arora at point Q-22 and by accused No. 4, Saroj Arora at point Q-21,
iii) Form No. 103, Ex. PW27/A-51, signed by accused No. 3, Yashpal Arora at point Q-23 and by accused No. 4, Saroj Arora at point Q-24,
iv) Form No. 106, Ex. PW27/A-52, signed by accused No. 3, Yashpal Arora at point Q-26 and by accused No. 4, Saroj Arora at point Q-25,
v) Form No. 122, Ex. PW27/A-53, signed by accused No. 3, Yashpal Arora at point Q-28 and by accused No. 4, Saroj Arora at point Q-27,
vi) Form No. 216, Ex. PW27/A-54, signed by accused No. 3, Yashpal Arora at point Q-30 and by accused No. 4, Saroj Arora at point Q-29,
vii) Form No. 126, Ex. PW27/A-55, signed by accused No. 3, Yashpal Arora at point Q-34 and by accused No. 4, Saroj Arora at point Q-33, Viii) Form No. 291, Ex. PW27/A-56, signed by accused No. 3, Yashpal Arora at point Q-36 and by accused No. 4, Saroj Arora at point Q-35,
ix) Form No. 192 i.e. Agreement of Hypothecation of goods to secure a Demand Cash Credit, Ex. PW27/A-57, signed by accused No. 3, Yashpal Arora at points Q-38, Q-40, Q-42, Q-40A, Q-42A & Q-44 and by accused No. 4, Saroj Arora at point Q-37, Q-39, Q-41, Q-43, Q-41A & Q-43A,
x) Stamp paper of Rs. 50/-, Ex. PW 27/A-58, signed by accused No. 3, Yashpal Arora at point Q-46 and by accused No. 4, Saroj Arora at point Q-45,
xi) Form No. 193 i.e. Agreement for Hypothecation of Book Debts, Ex.
PW27/A-59, signed by accused No. 3, Yashpal Arora at point Q-47 and by accused No. 4, Saroj Arora at point Q-48, C.C. No. 26/12 05-11-2014 98 of 128
xii) Stamp paper of Rs. 50/-, Ex. PW27/A-60, signed by accused No. 3, Yashpal Arora at point Q-49 and by accused No. 4, Saroj Arora at point Q-50,
xiii) Form No. 159 i.e. letter of continuity, Ex. PW27/A-61, signed by accused No. 3, Yashpal Arora at point Q-52 and by accused No. 4, Saroj Arora at point Q-51,
xiv) Stamp paper of Rs. 50/-, Ex. PW27/A-62, signed by accused No. 3, Yashpal Arora at point Q-54 and by accused No. 4, Saroj Arora at point Q-53,
xv) Form No. 255 i.e. Guarantee form, Ex. PW27/A-64, signed by accused No. 3, Yashpal Arora at point Q-55 and by accused No. 4, Saroj Arora at point Q-56, xvi) Stamp paper of Rs. 100/-, Ex. PW27/A-65, signed by accused No. 3, Yashpal Arora at point Q-57 and by accused No. 4, Saroj Arora at point Q-58, xvii) Form No. 255 i.e. Guarantee Form, Ex. PW27/A-66, signed by accused No. 3, Yashpal Arora at point Q-60 and by accused No. 4, Saroj Arora at point Q-59, xviii) Stamp paper of Rs. 100/-, Ex. PW27/A-67, signed by accused No. 3, Yashpal Arora at point Q-64 and by accused No. 4, Saroj Arora at point Q-63, xix) Board Resolution dated 01-01-2002, Ex. PW27/A-68, signed by accused No. 4, Saroj Arora at point Q-87, xx) Board Resolution dated 22-10-2001, Ex. PW27/A-69, signed by accused No. 3, Yashpal Arora at point Q-88 and by accused No. 4, Saroj Arora at point Q-89, xxi) Board Resolution dated 01-01-2002, Ex. PW27/A-70, signed by accused No. 3, Yashpal Arora at point Q-90, xxii) Form No. 84A to mortgage property, Ex. PW27/A-71, signed by accused No. 3, Yashpal Arora at point Q-92 and by accused No. 4, Saroj Arora at point C.C. No. 26/12 05-11-2014 99 of 128 Q-91, xxiii) Affidavit dated 11-03-2002 of accused No. 3, Yashpal Arora, Ex. PW27/A-72, signed by accused No. 3, Yashpal Arora at points Q-93 & Q-94, xxiv) Affidavit dated 04-12-2001 of accused No. 3,Yashpal Arora, Ex. PW27/A-73, signed by accused No. 3, Yashpal Arora at points Q-95 & Q-96, xxv) Affidavit dated 04-12-2001 of accused No. 4, Saroj Arora, Ex. PW27/A-75, signed by accused No. 4, Saroj Arora at points Q-97 & Q-98, xxvi) Affidavit dated 11-03-2002 of accused No. 4, Saroj Arora, Ex. PW27/A-77, signed by accused No. 4, Saroj Arora at points Q-103 & Q-104, xxvii) Stamp paper of Rs. 10/-, Ex. PW27/A-78, signed by accused No. 4, Saroj Arora at point Q-105, xxviii) Undertaking dated 31-01-2002 for creation of negative lien, Ex. PW27/A-80 signed by accused No. 3, Yashpal Arora at points Q-108 to Q-118 as 'Saroj Arora', xxix) Page No. 3, of GPA dated 17-09-1991, Ex. PW27/A-84, executed by accused No. 5, Deepak Arora in favour of accused No. 3, Yashpal Arora signed by accused No. 3, Yashpal Arora at point Q-123 as 'Saroj Arora', xxx) Page No. 2, of Agreement to Sell dated 17-09-1991, Ex. PW27/A-87, between accused No. 5, Deepak Arora and accused No. 4, Saroj Arora signed by accused No. 3, Yashpal Arora at point Q-128, and also at point Q-130 as 'Saroj Arora', xxxi) Will dated 17-09-1991, Ex. PW27/A-87, signed by accused No. 3, Yashpal Arora at point Q-131, xxxii) Receipt dated 17-09-1991 of accused No. 5, Deepak Arora, Ex. PW27/A-89, signed by accused No. 3, Yashpal Arora at point Q-133, xxxiii) Form No. 14, Ex. PW27/A-91, signed by accused No. 3, Yashpal Arora at C.C. No. 26/12 05-11-2014 100 of 128 point Q-136 and by accused No. 4, Saroj Arora at point Q-137, xxxiv) Form No. 412, Ex. PW27/A-92, signed by accused No. 3, Yashpal Arora at point Q-138 and by accused No. 4, Saroj Arora at point Q-138-A, xxxv) Form No. 103, Ex. PW27/A-93, signed by accused No. 3, Yashpal Arora at point Q-139 and by accused No. 4, Saroj Arora at point Q-140, xxxvi) Form No. 106, Ex. PW27/A-94, signed by accused No. 3, Yashpal Arora at point Q-141 and by accused No. 4, Saroj Arora at point Q-142, xxxvii) Form No. 122, Ex. PW27/A-95, signed by accused No. 3, Yashpal Arora at point Q-143 and by accused No. 4, Saroj Arora at point Q-144, xxviii) Form No. 126, Ex. PW27/A-96, signed by accused No. 3, Yashpal Arora at point Q-145 and by accused No. 4, Saroj Arora at point Q-146, xxxix) Form No. 216, Ex. PW27/A-97, signed by accused No. 3, Yashpal Arora at points Q-147 & Q-150 and by accused No. 4, Saroj Arora at points Q-148 & Q-149, xl) Form No. 291, Ex. PW27/A-98, signed by accused No. 3, Yashpal Arora at point Q-152 and by accused No. 4, Saroj Arora at point Q-151, xli) Form No. 192 i.e. Agreement of Hypothecation of goods to secure a Demand Cash Credit, Ex. PW27/A-99, signed by accused No. 3, Yashpal Arora at points Q-153, Q-155, Q-157 & Q-160 and by accused No. 4, Saroj Arora at points Q-154, Q-156, Q-158 & Q-159, xlii) Form No. 255 i.e. Guarantee Form, Ex. PW27/A-100, signed by accused No. 3, Yashpal Arora at point Q-162 and by accused No. 4, Saroj Arora at point Q-161, and xliii)Stamp paper of Rs. 100/-, Ex. PW27/A-101, signed by accused No. 3, Yashpal Arora at point Q-163 and by accused No. 4, Saroj Arora at point Q-164.
C.C. No. 26/12 05-11-2014 101 of 128 20.1 PW 18 Sh. Gurnam Singh deposed that as per the Statement of
Account, Ex.PW18/H, pertaining to Z.Z Zippers, w.e.f 03-01-2002 to 31-07-2004 of Account No. 50089 of Rajouri Garden Branch, on 21-01-2002, an amount of Rs.2,08,100/- has been debited through transfer. The said statement of account has been attested by Sr. Manager of P & S B, Rajouri Garden Branch. During his cross- examination, he admitted that entry dated 21-01-2002 does not reflect the name of the person in whose favour the amount has been transferred/credited. PW 24 Sh. Kapil Dev Sharma also testified that as per Statement of Account pertaining to Z.Z. Zippers from the period 03-01-2002 to 05-08-2004, Ex.PW18/H, on 21-01-2002, an amount of Rs. 2,08,100/- has been debited from this account. He further deposed that statement of account, Ex.PW/24/F of loan account No. 52-291 of M/s ZZ Zippers from 21-01-2002 to 23-03-2002 bears attesting signature of the then Senior Manager Shri Pradeep Sikka at point A. Statement of Account, Ex.PW24/G (D-35) of loan account no. 352-291 of M/s ZZ Zippers from 30-07-2002 to 30-07-2004 (account No. was changed from 52-291 to 352-291 due to change in programme in computer) bears attesting signature of the then Senior Manager Shri Pradeep Sikka at point A on both the pages. Statement of Account, Ex.PW24/H of Current Account of M/s Z.Z. Zippers from 03-11-2001 to 09-04-2002 bears attesting signature of the then Senior Manager Shri Pradeep Sikka at point A. It can be seen that all the aforesaid statements of accounts are not certified as per the Bankers Books Evidence Act, 1891 and thus cannot be relied upon.
20.2 However, PW24 Sh. Kapil Dev Sharma further stated that through debit voucher dated 21-01-2002, Ex.PW24/A, an amount of Rs. 6,22,800/- (Rs. 3,42,000/-+2,80,800/-) was sanctioned to M/s Z.Z. Zippers as Term Loan. Debit C.C. No. 26/12 05-11-2014 102 of 128 Voucher bear signature of Shri H.S. Bedi at point Q-165. Vide another debit voucher dated 21-01-2002, Ex.PW24/B, an amount of Rs.2,08,100/- was debited to account of ZZ Zippers as margin money. Total of debit vouchers Ex.PW24/A and Ex. PW 24/B, reflected in credit voucher dated 21-01-2001, amounting to Rs. 8,30,900/-, was kept in sundry credit account. Credit voucher Ex. PW 24/C bears signature of Shri J.S. Bedi at point Q-171. He further deposed that through another debit voucher dated 21-01-2002, Ex.PW24/D, for an amount of Rs. 8,30,900/- (Rs. 4,56,500+3,74,400), which bears signature of Shri J.S. Bedi at point Q172, sundry credit account was debited for Rs. 8,30,900/-. Vide credit voucher dated 21-01-2002, Ex.PW24/E for an amount of Rs. 8,30,900/-, one Manager's cheque for Rs. 4,56,500/- in favour of Prince Generators and one Manager's cheque for Rs.3,74,400/- in favour of Modern Oil Expellers and Filter Press Industries were issued by the Branch. Credit voucher bears signature of Shri J.S. Bedi at point Q-174. One of the Manager's cheque issued against Credit Voucher, Ex. PW 24/E is Ex. PW 18/G. 20.3 It can be observed that debit vouchers/credit vouchers Ex.PW24/A, Ex.PW24/B, Ex.PW24/D & Ex.PW24//E bear signatures on the back side at points Q-167, Q-169, Q-173 and Q-175, which according to the GEQD Report, Ex.PW27/F (Colly) are of accused No. 3, Yashpal Arora. Further, Ex.PW24/A and Ex.PW24/B bear signatures on the back side at points Q-166, Q-168 and Q-170 which according to the above GEQD's Report, are of accused No. 4, Saroj Arora.
The aforesaid documents show the disbursal of the sanctioned loan amount in favour of M/s Z.Z. Zippers Pvt. Ltd.
C.C. No. 26/12 05-11-2014 103 of 128 20.4 PW 46 Sh. R.P. Kaushal has deposed about seizure of documents
pertaining to account of Prince Generators in HDFC Bank, West Punjabi Bagh, New Delhi i.e. Ex.PW27/A-121 to Ex.PW27/A-123 and Ex.PW46/C-1 and Ex.PW46/C-2 vide seizure memo, Ex.PW46/C. Ex.PW27/A-123 is the account opening form of account No. 0911000126891 at HDFC Bank, Punjabi Bagh in which the name of proprietor has been mentioned as Yashpal Arora. The form is signed by the proprietor of Prince Generators at point Q-213. As per the GEQD's Report, Ex. PW 27/F (Colly), the said signatures are of accused No. 3, Yashpal Arora. Further, the payment facility form, Ex.PW27/A-122 bears photograph of accused No. 3 at point X. It also bears signatures of proprietor for prince Generators at point Q-210 which, according to the above GEQD's Report, is of accused No. 3, Yashpal Arora. Further, the photocopy of voter I-card, Ex.PW27/A-121 of accused No. 3, Yashpal Arora also bears signatures of the proprietor of Prince Generators at point Q-211, which as per GEQD's Report is of accused No. 3, Yashpal Arora. Though, no witness has been examined by the prosecution from HDFC Bank to prove the aforesaid account of accused No. 3, Yashpal Arora, the signatures of accused No. 3, Yashpal Arora on Ex.PW27/A-121 to Ex.PW27/A-123 indicate that the said accused had opened the above account as Proprietor of M/s Prince Generators at HDFC Bank, West Punjabi Bagh. Ld. P.P. has also relied upon the statement of account of M/s Prince Generators Ex. PW46/C-2 at HDFC Bank. However, the said statement is not certified as the Banker's Books Evidence Act, 1891 and thus cannot be relied upon.
20.5 PW18 Sh. Gurnam Singh has deposed that Pay Order No. 997627 C.C. No. 26/12 05-11-2014 104 of 128
dated 21-01-2002, Ex.PW18/G issued from Punjab and Sind Bank, Rajouri Garden Branch (D-19) favouring Prince Generators, was jointly issued by him and officer of the Bank Shri Balbir Singh. Pay order bears his signature at point A and that of Shri Balbir Singh at point B. Pay order also bears signature of Sh. Jitender Singh Bedi, the then Branch Manager at point C. During his cross examination, he stated that he has not received any application for the preparation of Pay Order in the name of Prince Generators. He had signed on the Pay Order as the same had come to him in the routine banking business.
20.6 PW 24 Sh. Kapil Dev Sharma has also deposed that Manager's cheque (Pay order) No. 997627 dt. 21-01-2002, Ex. PW 18/G in favour of M/s Prince Generators for Rs. 4,56,500/- bear signature of Shri Gurnam Singh at point A. He also stated that through letter, Mark PW24/X, (also Ex. PW27/A-129) of Punjab and Sind Bank addressed to M/s Prince Generators MS-11-12, Hari Nagar, New Delhi (D-20), Manager's Cheque Ex. PW 18/G was delivered to M/s Prince Generators. He also stated that debit voucher dated 21-01-2002, Ex.PW24/D, for an amount of Rs. 8,30,900/- (Rs. 4,56,500+3,74,400), which bears signature of Shri J.S. Bedi at point Q172, sundry credit account was debited for Rs. 8,30,900/-. He further stated that vide credit voucher dated 21-01-2002, Ex.PW24/E for an amount of Rs. 8,30,900/-, one Manager's cheque for Rs. 4,56,500/- in favour of Prince Generators and one Manager's cheque for Rs.3,74,400/- in favour of Modern Oil Expellers and Filter Press Industries were issued by the Branch. Credit voucher bears signature of Shri J.S. Bedi at point Q-174. One of the Manager's cheque issued against Credit Voucher, Ex. PW 24/E is Ex. PW 18/G. During his cross examination, he admitted that Manager's Cheque can be issued in the name of a person who does not hold an account C.C. No. 26/12 05-11-2014 105 of 128 with the bank. In such a case, the limit of this cheque is Rs.50,000/- and the same can be paid through cash. He further admitted that such a person can get Manager's cheque in favour of anyone. He also stated that in the year 2001-2002, situation regarding issuance of manager's cheque was exactly the same and in case, anyone wanted to have a manager's cheque issued for more than Rs.50,000/-, the same could be issued only through the account and it was mandatory for such a person to have account with the bank. PW 25 Sh. Jasminder Pal Singh has also deposed about manager's cheque Ex.PW18/G. It is not the case of accused persons that the Pay Order, Ex. PW 18/G was handed over to any other Prince Generators or deposited in some other account.
20.7 From the aforesaid evidence and circumstances it appears that accused No. 3, Yashpal Arora obtained pay order Ex.PW18/G for Rs. 4,56,000/- from Rajouri Garden Branch of P & S B, against the cost of generator set purportedly sold by M/s Prince Generators to M/s Z.Z. Zippers vide letter dated 14-01-2002, Ex.PW27/A-129 (also Mark PW24/X) of P & S B, Rajouri Garden Branch addressed to M/s Prince Generators. The letter bears signature dated 21-01-2002 of the person who has received the same at point Q-326. As per the GEQD Report, Ex.PW27/F (Colly), the said signature is of accused No. 3, Yashpal Arora. Thus, accused No. 3, Yashpal Arora had deceived P & S B to believe that he was purchasing generator set from some M/s Prince Generators and received pay order of Rs.4,56,500/-.
20.8 It can be noted that in the letter dated 17-10-2001, Ex. PW18/F written by accused No. 3, Yashpal Arora to Chief Manager, P & SB, Rajouri Garden, New Delhi, while requesting for bank gaurantee, he has stated as C.C. No. 26/12 05-11-2014 106 of 128 under:-
" We have made an arrangement with the National Small Industries Corporation Ltd. (NSIC) for procurement of raw materials, in raw material assistance scheme. NSIC take 2 % service charges per annum and give 90 days credit facility. The quantity and quality of raw materials is better than other suppliers. Therefor bank guarantee is needed to avail the above facility from the NSIC."
20.9 From the above, it is clear that accused No. 3, had sought loan for procuring raw material under the raw material assistance scheme of National Small Industries Corporation Ltd.
20.10 It is further observed that as per Form 412, Ex. PW27/A-50, executed by them, accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora noted that since the loan is sanctioned essentially for the purpose of Rs. 15,00,000/- as Credit Cash Limit, they were prohibited from using the loan amount or any part thereof for purpose otherwise than as specified by them. Similarly, as per Form No. 412, Ex. PW27/A-92, executed by them, accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora, noted that since the loan is sanctioned essentially for the purpose of " Raw Material for ............ (illegible)"
they were prohibited from using the loan amount or any part thereof for purpose otherwise than as specified by them. However, accused No. 3, Yashpal Arora and accused No.4, Saroj Arora issued various cheques from account No. 4149 (later CC Account No. 50089) at P & S B for purposes other than those specified by them as under :-
a) Cheque No. 631731 dated 31-12-2001, Ex.PW27/A-104 for Rs. 6,50,000/-
in favour of NSIC, Gurgaon signed by accused No. 3, Yashpal Arora at point Q-181 and by accused No. 4, Saroj Arora at point Q-182,
b) Cheque No. 632001 dated 07-01-2002, Ex.PW27/A-105 for Rs.
C.C. No. 26/12 05-11-2014 107 of 128 6,00,000/- in favour of NSIC, Gurgaon signed by accused No. 4, Saroj Arora at point Q-183,
c) Cheque No. 632003 dated 07-01-2002, Ex.PW27/A-106 for Rs. 3,000/- in favour of Sh. V.P. Aneja signed by accused No. 4, Saroj Arora at point Q-184,
d) Cheque No. 632004 dated 15-01-2002, Ex.PW27/A-107 for Rs. 5,50,000/- in favour of NSIC (Gurgaon) signed by accused No. 4, Saroj Arora at point Q-186,
e) Cheque No. 632005 dated 16-01-2002, Ex.PW27/A-108 for Rs. 1,25,000/- in favour of NSIC, Gurgaon signed by accused No. 4, Saroj Arora at point Q-187,
f) Cheque No. 632002 dated 01-01-2002, Ex.PW27/A-109 for Rs. 1,500/- in favour of Sh. P.P.S. Madan signed by accused No. 4, Saroj Arora at point Q-188,
g) Cheque No. 632007 dated 24-01-2002, Ex.PW27/A-110 for Rs. 6,00,000/- in favour of NSIC (Gurgaon) signed by accused No. 4, Saroj Arora at point Q-190,
h) Cheque No. 632010 dated 15-02-2002, Ex.PW27/A-111 for Rs. 2,00,000/- in favour of NSIC (Gurgaon) signed by accused No. 4, Saroj Arora at point Q-191,
i) Cheque No. 632009 dated 12-02-2002, Ex.PW27/A-112 for Rs. 2,00,000/- in favour of NSIC (Gurgaon) signed by accused No. 4, Saroj Arora at point Q-192,
j) Cheque No. 632008 dated 01-02-2002, Ex.PW27/A-113 for Rs. 3,00,000/- in favour of Sh. Raj Kumar, (brother of accused No. 4, Saroj Arora) signed by accused No. 4, Saroj Arora at point Q-193, C.C. No. 26/12 05-11-2014 108 of 128
k) Cheque No. 632016 dated 30-05-2002, Ex.PW27/A-114 for Rs. 20,000/- in favour of Sh. Rahul Arora (son of accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora) signed by accused No. 3, Yashpal Arora at points Q-195 and Q-196, and
l) Cheque No. 631726 dated 10-12-2001, Ex.PW27/A-103 for Rs. 2,000/- in favour of Sh. Arun Duggal signed by accused No. 3, Yashpal Arora at point Q-179.
The signatures of accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora on the above cheques have been proved by PW 27 Sh. T. Joshi vide his report, Ex.PW27/F (Colly). During his cross-examination as DW 2, accused No. 3, Yashpal Arora has also admitted his signatures at points Q-179, Q-181, Q-195 and Q-196.
20.11 The cheques issued in favour of NSIC (Gurgaon) were deposited in Current Account No. 573 of New Scientific Industrial Chemical (NSIC) and not the account of National Small Industries Corporation (NSIC). In this regard, PW 29 testified that on 25-01-2004 he was functioning as Chief Vigilance Officer of NSIC. Vide letter dt. 25-01-2004, Ex.PW29/A, signed by him at point A, he has informed CBI that during the period 31-12-2001 to 12-02-2002, M/s Z.Z. Zippers Pvt. Ltd. did not have any transaction with NSIC Limited. He had further informed that NSIC, Delhi is having accounts with various Banks all over India and the cheques in the name of NSIC and NSIC Ltd. are being accepted by the offices of this corporation all over country. However, during the aforesaid period, no cheques of M/s Z.Z. Zippers Pvt. Ltd. were presented to Federal Bank Ltd. Gurgaon, by NSIC. This witness was not cross examined by any accused and thus, his testimony has gone unimpeached.
C.C. No. 26/12 05-11-2014 109 of 128 20.12 PW 23 Sh. Ishwar Chand Vij, who was working as an Officer in
Federal Bank, Gurgaon Branch in the year 2002, testified that current account No. 573 in the name of New Scientific Industrial Chemicals (NSIC) under sole proprietorship of Yashpal (Ex. PW 1/1) was opened in the Federal Bank, Gurgaon on the introduction of another account holder of the branch i.e. M/s SS Pharmaceuticals, CA No. 59. In this Current Account (CA573), registered address of New Scientific Industrial Chemicals (NSIC) and address of introducer SS Pharmaceuticals are same i.e. 338/10, Bhim Nagar Market, New Railway Road, Gurgaon. On the back of Ex.PW 1/1, Shri Yashpal had signed for sole proprietorship account declaration at point C. Shri Nand Kumar V. was the Senior Manager at Gurgaon Branch during his posting. He can identify his signature as he has worked with him. During his cross-examination, nothing significant came out. His testimony has thus, gone unimpeached. He also stated about the Statement of Account No. CA-573, Ex.PW23/B of New Scientific Industrial Chemicals (NSIC) w.e.f 02-01-2002 to 31-03-2006. However, the said statement is not certified as per the Banker's Books Evidence Act, 1891 and thus cannot be relied upon.
20.13 PW 1 Sh Sushil Kumar deposed that he is dealing in medicines business. He is maintaining his Bank Account at Federal Bank, Jail Road, Gurgaon. Account No. 573 was opened in Federal Bank Ltd. and the same was introduced by him. The Account Opening Form, Ex. PW 1/1 bears his signatures at point A and the signatures of Yashpal Arora, at point B. He recognized the photograph of Sh. Yashpal Arora at point C. He further stated that the account was opened by Sh. Yashpal Arora in the name of New C.C. No. 26/12 05-11-2014 110 of 128 Scientific Industrial Chemicals (NSIC). Voucher dt. 07-01-2002, Ex. PW1/2 of Federal Bank Ltd. for depositing Rs. Six Lacs in the aforesaid account bears his signatures at point A. During his cross-examination, nothing in favour of the accused came out. No suggestion was given to him that the aforesaid account was not opened by accused No. 3, Yashpal Arora. His testimony has also gone unrebutted.
20.14 It is observed that the account opening form Ex.PW1/1 bears photograph of accused No. 3, Yashpal Arora. It also bears signatures of accused No. 3, Yashpal Arora at points Q-214 and Q-215 which he has admitted during his cross-examination as DW 2. The same has also been proved by PW 27 Sh. T. Joshi vide his report Ex.PW27/F (Colly). The contention of accused No. 3, Yashpal Arora that the aforesaid account opening form is in the handwriting of accused No. 5, Deepak Arora, is thus of no consequence so far as the role of accused No. 3, Yashpal Arora is concerned. Further, form 60, Ex.PW23/A-1 also bears signatures of accused No. 3, Yashpal Arora at point Q-217 which has been proved by PW 27 Sh. T. Joshi vide his report, Ex.PW27/F (colly). It is also observed that accused No. 3, Yashpal Arora has deposited Rs. 6,50,000/-, Rs. 5,50,000/-, Rs. 6,00,000/-, Rs. 2,00,000/- and Rs. 2,00,000/- through cheques of P & S B, Rajouri Garden Branch vide pay in slips, Ex.PW23/B-2 to Ex.PW23/B-6 in the aforesaid account. As per the GEQD's Report, Ex.PW27/F (Colly), the said pay in slips bear his signatures at points Q-219 to Q-223. Further, accused No. 3, Yashpal Arora has withdrawn various amounts from the aforesaid account vide cheques Ex.PW23/C-1 to Ex.PW23/C-16. All the said cheques are self cheques. As per the GEQD's Report, Ex.PW27/F (Colly), the said cheques bear signatures of accused No. 3, C.C. No. 26/12 05-11-2014 111 of 128 Yashpal Arora at points Q-224 to Q-254.
20.15 From the aforesaid evidence, it is proved that accused No. 3, Yashpal Arora had dishonestly and fraudulently opened Current Account No. 573 in Federal Bank, Gurgaon in the name of New Scientific Industrial Chemicals (NSIC), acronym of which is same as of National Small Industries Corporation (NSIC). Further accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora issued cheques from CC Account No. 50089 which were deposited in CA No. 573 in the name of New Scientific Industrial Chemicals at Federal Bank, Gurgaon. Accused No. 3, Yashpal Arora also withdrew the amount from the said account vide cheques, Ex. PW23/C-1 to Ex. PW23/C-16.
21.1 It is also observed that in the affidavit Ex. PW27/A-72 dated 11-03-2002 which is signed by accused No. 3, Yashpal Arora at points Q-93 and Q-94, it is stated that they are in actual possession of their factory premises at 107, Roz Ka Meo Industrial Area, Sohna, Gurgaon and that there was no lien, dispute, mortgage, gift or litigation of the said factory premises. During his cross examination as DW2, accused No. 3, Yashpal Arora has admitted his signatures at points Q-93 and Q-94 and the same also been proved by PW27 Sh. T. Joshi vide his report Ex. PW27/F (colly). However, the said property was already mortgaged with Oriental Bank of Commerce. In this regard, PW19 had testified that M/s Z.Z. Zippers Pvt. Ltd was having its CC account in Oriental Bank of Commerce, Sohna Branch and Yashpal Arora and Saroj Arora were its Directors. The account became 'Non Performing Assets'. The documents Ex. PW19/B i.e. conveyance deed and receipt for Rs. 6190/-, Ex. PW19/C were taken as security for the loan. The matter was pending in DRT, Chandigarh. The C.C. No. 26/12 05-11-2014 112 of 128 case was decreed in favour of the bank and the plot of 1000 sq meters situated at Roz Ka Meo Industrial Area, Sohna was put for auction. Ex. PW19/B is the original conveyance deed. PW 11 Sh. Jagjit Singh, Chartered Accountant has proved the search report dated 29-01-2004, Ex.PW11/A, in respect of M/s Z.Z. Zippers Pvt. Ltd. as on 29-01-2004. From the aforesaid, it is clear that in his affidavit Ex. PW27/A-72, accused No. 3, Yashpal Arora has misrepresented to P & SB that there was no lien, dispute, mortgage, gift or litigation of the said factory premises.
22.1 It can also be seen that accused No. 4, Saroj Arora has signed an affidavit dated 04-12-2001, Ex. PW27/A-74, which was submitted to the bank. The said affidavit bears signatures of accused No. 4, Saroj Arora at points Q-97 and Q-98. She has also signed debit voucher, Ex. PW24/A for Rs. 6,22,800/- at point Q-166 and debit voucher, Ex. PW24/B for Rs. 2,08,100/- at points Q-168 and Q-170 of P & SB. The above signatures have been proved to be of accused No. 4, Saroj Arora by PW27 Sh. T. Joshi vide his report, Ex. PW 27/A (colly).
23.1 Ld. Counsel for accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora has relied upon copy of an agreement dated 12-03-1996 between accused No. 3, Yashpal Arora and accused No. 5, Deepak Arora, two Memorandums of Understanding (MOUs) dated 07-09-2001; the first one executed between accused No. 3, Yashpal Arora and Sh. Ashok Chaudhary, and the second one executed between accused No. 3, Yashpal Arora and Sh. B.P. Baranwal, which are part of Ex. PW46/D-2 (colly), to argue that it was accused No. 5, Deepak Arora, Sh. Ashok Chaudhary and Sh. B.P. Baranwal who were responsible for obtaining loan from the bank. Further, accused No. 5, C.C. No. 26/12 05-11-2014 113 of 128 Deepak Arora was looking after the business of M/s Z.Z. Zippers Pvt. Ltd., and thus he was responsible for all the business transactions and they had no role in the same. It is observed that agreement dated 12-03-1996, part of Ex.PW46/D-2 (colly) is only a photocopy. In the agreement, it is stipulated that accused No. 3, Yashpal Arora had invested Rs. 12 lacs in purchase of land and construction of factory at 107, Roz Ka Meo, Sohna, and that machines were going to be installed there by taking loan, accused No. 3, Yashpal Arora and his wife were to be owners thereof only on papers and that the real owner was to be Deepak Arora. It is further stipulated that whenever required by bank/Govt. Offices, accused No. 3, Yashpal Arora and his wife were to sign loan documents. Further, in the MOU dated 07-09-2001 executed between accused No. 3, Yashpal Arora and Sh. Ashok Chaudhary, it is stipulated that accused No. 3, Yashpal Arora wishes to raise a loan of Rs. 70,00,000/- through bank and Sh. Ashok Chaudhary had agreed to arrange the loan amounts from bank repayable as per rules of bank i.e. P & SB, Rajouri Garden and accused No. 3, Yashpal Arora has confirmed to complete the formalities for the principles of the second party. Accused No. 3, Yashpal Arora had also agreed to pay service charges/commission at the rate of 3 % at the time of sanction of loan. Similar is the MOU dated 07-09-2001 between accused No. 3, Yashpal Arora and Sh. B.P. Baranwal. It is considered that any such agreement cannot exonerate the accused persons from their criminal acts. The aforesaid MOUs are bipartite agreements between accused No. 3, Yashpal Arora and Deepak Arora/Sh. Ashok Chaudhary/Sh. B.P. Baranwal to which P & SB is not a party. Therefore, the said MOUs would not have any bearing on the transactions between M/s Z.Z. Zippers Pvt. Ltd./ its Directors and the bank. Any agreement by the accused persons with a third party can neither bind the bank nor shift the criminal liability C.C. No. 26/12 05-11-2014 114 of 128 of the accused persons. Though, accused No. 5, Deepak Arora, who is PO, is also alleged to have conspired with accused No. 3, Yashpal Arora and accused No. 4 Saroj Arora in cheating P & SB, his actions cannot exonerate accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora from their culpable acts.
23.2 It has also been argued on behalf of accused No.3, Yashpal Arora and accused No. 4, Saroj Arora that the investigation is tainted as ASI Prahlad Singh executed warrant u/s 83 Cr. P.C. at A/82, Ramesh Nagar instead of 2A/71, Ramesh Nagar, IO obtained signatures of 13 persons but the report received from GEQD is with regard to 8 persons, Sh. A.K. Sood of P & SB, Sh. Mukul Bhasin of HDFC bank, and Sh. Nand Kumar V. of Federal bank and Sh. Rishi Jha of ICICI Bank from whom documents were seized/collected have not been made witnesses, IO has not conducted investigation with regard to Sh. H.S. Duggal and Sh. J.B.S. Bedi, AGM, who has signed on the appraisal note on 22-11-2001 and on the sanction letter dated 01-12-2001 was not made witness and that IO had facilitated Sh. B.P. Baranwal, Sh. Ashok Chaudhary, Sh. Dinesh Jain, Sh Vinod Sabharwal, Sh. Subhash Banga, Sh. Kamal Kapoor, Sh. Karan Kamal Kapoor and Ms. Kavita Kapoor because these persons were related to accused No. 5, Deepak Arora. Ld. P.P has contended that the aforesaid facts do not dilute the case against the present accused persons. It is considered that there might be some lapses in the investigation but these are not such lapses as to prejudice the present accused persons or vitiate the trial. There is overwhelming direct and circumstantial incriminating evidence against accused No.3, Yashpal Arora and accused No. 4, Saroj Arora. The above arguments on behalf of accused No. 3, Yashpal Arora and accused No.4, Saroj Arora are thus of no help to them.
C.C. No. 26/12 05-11-2014 115 of 128 24.1 In view of the aforesaid, it is considered that prosecution has been
able to prove that accused No. 3, Yashpal Arora in conspiracy with his wife, accused No. 4, Saroj Arora cheated P & S B, Rajouri Garden Branch, New Delhi by deceiving and dishonestly and fraudulently inducing the said bank to sanction and release/disburse credit facility i.e. term loan of Rs.13,00,000/- and CC Limit of Rs. 35,00,000/- on the basis of misrepresentation and by using fake/fabricated documents viz. forged conveyance deed, Ex. PW5/2 of property No. 107, Roz-Ka-Meo, Industrial Area, Sohna, District Gurgaon, Haryana, forged quotation/proforma invoice of M/s Prince Generators, Ex. PW2/1 and Ex. PW2/2, forged audited balance sheets of the company for the years ending 31-01-1999, 31-03-2000 and 31-03-2001, Ex. PW27/A-19 to Ex. PW27/A-25, Ex. PW27/A-28 to Ex. PW27/A-32 and Ex. PW27/A-36 to Ex. PW27/A-40 respectively, forged attestation dated 22-10-2001, on letter, Ex. PW7/1, of signatures of both Directors by the Branch Manager, Central Bank of India, Gurgaon, forged letter dated 30-10-2001, Ex. PW30/D in respect of forged conveyance deed issued by HUDA, Gurgaon and forged Assets and Liability Statement, Ex. PW27/A-124 of guarantor Sanjay Verma. It has also been proved that the loan amount was dishonestly and fraudulently deposited in account No. 573 of New Scientific Industrial Chemicals in Federal Bank, Gurgaon, opened by accused No. 3, Yashpal Arora and withdrawn by him from the said account.
25.1 It is also considered that prosecution has been able to prove that accused No. 4, Saroj Arora, Director of M/s Z.Z. Zippers Pvt. Ltd., conspired with accused No. 3, Yashpal Arora to cheat P & S B. She has executed affidavit, C.C. No. 26/12 05-11-2014 116 of 128 Ex.PW27/A-74, various loan documents i.e. Ex.PW27/A-49 to Ex.PW27/A-62, Ex. PW27/A-64 to Ex. PW27/A-67 and Ex.PW27/A-91 to Ex.PW27/A-101. She has also issued various cheques i.e. Ex. PW27/A-104 to Ex. PW27/A-113 from account No. 4149 (also CC account No. 50089) of M/s Z.Z. Zippers Pvt. Ltd. in favour of NSIC (Gurgaon), Sh. V.P. Aneja, Sh. P.P.S. Madan and Sh. Raj Kumar. It is also clear that though loan was taken from P & SB, inter-alia, for obtaining raw material assistance from National Small Industries Corporation Ltd., accused No. 4, Saroj Arora had issued cheque Ex. PW27/A-104, Ex. PW27/A-105, Ex. PW27/A-110 to Ex. PW27/A-112 in favour of NSIC (Gurgaon), which were deposited in Current Account No. 573 of New Scientific Industrial Chemicals under sole proprietorship of her husband accused No. 3, Yashpal Arora. Accused No. 4, Saroj Arora has thus fraudulently and dishonestly induced P & SB to release the amount of the said cheques issued in favour of NSIC (Gurgaon), causing the bank to believe that it was issued in favour of National Small Industries Corporation. Being director of M/s Z.Z. Zippers Pvt. Ltd., she was also beneficiary of the loan amount sanctioned and disbursed by P & S B. The circumstances brought on record reveal that she had conspired with accused No. 3, Yashpal Arora to cheat P & SB and she had cheated P & SB. However, there is no evidence to show that she had forged any document or used any forged document. Thus, she cannot be held liable for commission of the offences of forging documents or using forged documents.
26.1 The allegations against accused No. 1, Swarn Singh are two fold; firstly, that on 01-01-2002, during his meeting with Branch Manager, he allowed the Branch Manager, to release the limit and secondly, that in the meeting dated 16-01-2002 of the Loan Committee, which he presided, the action of Branch C.C. No. 26/12 05-11-2014 117 of 128 Manager of releasing the limit was confirmed.
26.2 There is no dispute that in the present case, PW 45 Sh. Sukhwant Singh, Deputy General Manager was the competent authority to sanction the loan and he had sanctioned the loan on the recommendation of the Branch Manager. The only signature of accused No. 1, Swarn Singh on the record of the bank with regard to loan of M/s Z.Z. Zippers Pvt. Ltd. is on the note, Ex.PW42/B, wherein it was proposed to stop/cancel the sanction of loan and ask the Branch Manager to submit his comprehensive report on the case. Accused No. 1, Swarn Singh has approved the said proposal.
26.3 According to the prosecution, vide letter dated 26-12-2001, Ex.PW30/H, written by PW 45 Sh. Sukhwant Singh, DGM, Zonal Office to the Sr. Manager, Rajouri Garden Branch, the Branch was advised to treat the sanction as cancelled and to submit complete report on the case as to when and how they have come to know that brother and sister in law of the director are enjoying limits from their bank and case is pending at DRT. Further, the Branch Manager is stated to have written the following two letters to the zonal manager:-
" a) Letter dated 03-01-2002, Ex. PW 30/K, which is a photocopy, purportedly written by Branch Manager, Rajouri Garden Branch to accused No. 1, Swarn Singh by name wherein it is written, " This is with reference to our letter dated 31.12.2001. The undersigned visited your office on 01.01.2002 and discussed the above a/c with respect to your sanction dated 03.12.2001. With your kind permission, today we allowed the party to avail the limit as per sanction."
b) Letter dated 03-01-2002, Ex. PW 30/DX, purportedly written by C.C. No. 26/12 05-11-2014 118 of 128 Branch Manager, Rajouri Garden Branch to the Zonal Manager, P & S B, Zonal Office, New Delhi wherein it is written, " This is with reference to our letter dated 31.12.2001 and discussion with yourgoodself today. We have allowed the party to avail Rs. 15 lac CC Limit and term loan of Rs. 13 lacs after having your permission. Kindly confirm our action and progress will be informed you accordingly."
This letter bears a dak received stamp of Zonal Office which is 18-05-2002. It is considered that these two letters are only record of the purported conversation between accused No. 1, Swarn Singh and accused No. 2, J.S. Bedi. The said fact could have been appropriately proved either by any party/person in whose presence such conversation took place or admission, express or implied, by accused No. 1, Swarn Singh of such conversation by acknowledgement of the said letters etc. No such evidence has been led by the prosecution.
26.4 During his cross- examination, PW 24 Sh. Kapil Dev Sharma stated that he was not aware whether the loan was cancelled by the Zonal Office or not on 26-12-2001. He had not seen any letter received in the Branch Office from Zonal Office regarding cancellation of the loan. PW 22 Sh. Shailender Chawla during his cross - examination stated that he does not know as to when the letter, Ex.PW30/H was dispatched from the Zonal Office. He was not required to ensure that the said letter had reached the branch as there was no such practice.
26.5 There is no reference, in the two letters dated 03-01-2002, Ex.PW30/K and Ex.PW30/DX, of the letter dated 26-12-2001, Ex.PW30/H of the Zonal Office. No evidence has been led on record to show that these two letters C.C. No. 26/12 05-11-2014 119 of 128 were seen or acknowledged by accused No. 1, Swarn Singh at Zonal Office. There is also no cogent explanation as to how letter dated 03-01-2002, Ex.PW30/DX came to bear the stamp of 18-05-2002. It is also not clear as to why on the same subject the Branch Manager has written two letters to the Zonal Manager on the same day. It is also pertinent to note that on the letter dated 31-12-2001, Ex. PW30/I of the Branch Manager written to the Zonal Office, PW22 Sh. Shailender Chawla made an endorsement for discussing the same in the Loan Committee meeting. However, there is no such endorsement on either of the letter dated 03-01-2002, Ex. PW 30/K or Ex. PW30/DX. There are also different versions as to who has prepared the minutes.
26.6 DW 1 Sh. Mahender Singh from P & S B, has produced a copy of letter dated 14-02-2012, Ex. DW 1/D (colly) of P & S B, Head Office, addressed to accused No. 1, Swarn Singh. The said letter is certified by Sh. Harvinder Singh Gujral, CPIO, P & S B to have been issued from their office. Vide this letter, they had enclosed copy of letter dated 13-02-2012 of P & S B , Zonal Office, New Delhi sent to the Chief Manager, P & S B, RTI Cell, Head Office. Letter dated 13-02-2012 of the Zonal Office is apparently in response to an RTI query by accused No. 1, Swarn Singh. As per letter dated 13-02-2012, letter dated 03-01-2002 of Branch Office, Rajouri Garden, New Delhi to accused No. 1, Swarn Singh, the then GM was not dispatched from the Branch and as per record available at Branch Office, Rajouri Garden New Delhi the then Zonal Office letter dated 26-12-2001 was not received at the Branch. During his cross- examination, DW 1 Sh. Mahender Singh deposed that he was not the CPIO in P & S B. He had not verified the information given vide Ex.DW1/D. He admitted that the overall responsibility for maintenance of all the registers in the Branch is C.C. No. 26/12 05-11-2014 120 of 128 that of the Branch Manager. He also admitted that to ascertain whether any letter has been received or dispatched, the authentic document is receipt and dispatch register. It is well settled that the burden of proof on the accused is not as strict as that on the prosecution. Accused can discharge his burden by raising a probable defence. It is also well settled that defence witnesses stand on the same footing as the prosecution witnesses. In view of the aforesaid, it is considered that the records produced by DW 1 Sh. Mahender Singh raises a doubt regarding the receipt/dispatch of the aforesaid letters.
26.7 Further, even if letters Ex. PW30/K or Ex. PW30/DX were received at the Zonal Office, it by itself does not prove anything against accused No. 1, Swarn Singh. There is no evidence to show that these letters were seen by accused No. 1, Swarn Singh or that he acknowledged the facts stated therein. There is also no other evidence to the effect that accused No. 2, J.S. Bedi visited the office of accused No. 1, Swarn Singh on 01-01-2002 or that accused No. 1, Swarn Singh permitted accused No. 2, J.S. Bedi to release the limits earlier sanctioned. Even if the prosecution version in this regard is believed to be true, the oral permission allegedly given by accused No. 1, Swarn Singh was not final since Branch Manager had allegedly sought confirmation of his action.
26.8 The prosecution is also relying upon the minutes of the meeting dated 16-01-2002, Ex.PW15/1 and Ex. PW31/A wherein the action of the Branch Manager in releasing the limits to the party was confirmed. It is pertinent to note in that in the said minutes it is , inter-alia, recorded, " on 03-01-2002, Branch Manager allowed the party to avail the limit, as informed by him vide his letter dated 03-01-2002 addressed to G.M. (Z.O.) stating having discussed the matter and allowed the limits to avail the limits sanctioned and C.C. No. 26/12 05-11-2014 121 of 128 sought confirmation of his action. The matter was discussed in Loan Committee meeting referring assurance given by Mr. Yashpal Arora & repeated recommendation of Branch Manager and discussion held at HO level and it was also noted that limits have been allowed by Branch Manager, accordingly it was decided to confirm Branch Manager's action."
In the said minutes, it is not recorded that in the meeting, accused No. 1, Swarn Singh confirmed having verbally allowed the Branch Manager to release the limits. Minutes Ex.PW31/A is only a photocopy. The minutes, Ex.PW15/1, comprises of only four pages i.e. page No. 1, 11, 12 and 13 of the minutes whereas pages 2 to 10 are missing. Thus, the minutes are not complete. There is no explanation by the prosecution about the missing pages. The above minutes are also not signed by accused No. 1, Swarn Singh. The natural inference is that accused No.1, Swarn Singh did not attend the said meeting or was not a party to the decision taken therein. There is no record produced by prosecution that accused No.1, Swarn Singh was ever asked after 16-01-2002 to sign the minutes or that the decision taken in the said meeting was ever communicated to the Branch.
26.9 The fact that accused No. 1, Swarn Singh has not signed the minutes could be, as argued by Ld. P.P., because he wanted to avoid liability. It could also be, as argued on behalf of the said accused, because of the fact that he did not attend the meetings and was not a party to the said decision.
26.10 PW 15 Sh. Rajesh Malhotra, PW20 Sh Inderjeet Chawla, PW22 Sh. Shailender Chawla, PW31 Sh. Charan Singh Sobti, PW41 Sh. Randhir Singh Saini PW42 Sh. Subhash Aggarwal and PW 45 Sh. Sukhwant Singh have deposed that accused No. 1, Swaran Singh had attended the meeting on C.C. No. 26/12 05-11-2014 122 of 128 16-01-2002 and the decision to confirm the Branch Manager's action was taken. Ld. P.P has argued that the aforesaid witnesses had signed the minutes since accused No. 1, Swarn Singh had earlier allowed the Branch Manager to release the limits. On the other hand, it is argued on behalf of accused No. 1, Swarn Singh that he could not have influenced 7 senior officers of the bank including one of the rank of DGM. The meeting was attended by PW45 Sh. Sukhwant Singh, Deputy General Manager, who was just one rank junior to accused No. 1, Swarn Singh. It is considered that it is unlikely that an officer of his rank or other officers who attended the meeting would be influenced by the oral instructions of a General Manager, if they were opposed to such decision, without recording a dissenting note.
26.11 Further, even if accused No.1, Swarn Singh presided the meeting dated 16-01-2002, he cannot be selectively held liable for the decision of the committee since it was a collective decision. It is well settled that if a decision taken was a collective decision then no single individual can be selectively held responsible for the same. In this regard reference can be made to State of M.P. Vs. Sheetla Sahai (supra). In this case as per prosecution, besides accused No.1, Swarn Singh, PW 15 Sh. Rajesh Malhotra, PW20 Sh Inderjeet Chawla, PW22 Sh Shailender Chawla, PW31 Sh. Charan Singh Sobti, PW41 Sh. Randhir Singh Saini PW42 Sh. Subhash Aggarwal and PW 45 Sh. Sukhwant Singh have also attended the meeting dated 16-01-2002 and were party to the decision taken by the said Loan Committee. If accused No.1, Swarn Singh, who has not even signed the minutes, Ex. PW15/A, is to be held liable for the decision taken by the committee, all the aforesaid witnesses are equally liable with regard to the said decision. Prosecution cannot pick and choose any one person for a C.C. No. 26/12 05-11-2014 123 of 128 collective decision taken by all the committee members. In view of the aforesaid, it is considered that it would not be safe to fasten liability upon accused No. 1, Swarn Singh on the basis of minutes dated 16-01-2002, Ex.PW15/A, which are not even signed by him.
26.12 There is also no evidence on record that accused No. 1, Swarn Singh had obtained any valuable thing or pecuniary advantage for himself or that he ever met accused No. 3, Yashpal Arora or accused No.4, Saroj Aroa. It is also pertinent to note that as per PW 45 Sh. Sukhwant Singh, when the appraisal note dated 22-11-2001, Ex. PW22/A-5 was put up to him, the proceedings of the Loan Committee meeting was also put up and that the appraisal note, Ex. PW22/A-5 was put up after meeting of the Loan Committee on 16-11-2001. Thus, the minutes of the said meeting was a material document in this case. However, the said minutes have not been produced by the prosecution.
26.13 DW1 Sh. Mahender Singh has also produced a certified copy of the letter dated 03-01-2002 of accused No.1, Swarn Singh written to CMD, P & SB vide which he has joined on that day at Head Office to look after the Advances Department in addition to Z.O., New Delhi. He has also produced attested copy of TA report, Ex. DW1/E to show that accused No. 1, Swarn Singh was travelling to Chandigarh from 14-01-2002 to 16-01-2002. These facts also create a doubt regarding the presence of accused No. 1, Swarn Singh in the meeting dated 16-01-2002.
26.14 In view of the aforesaid, it is considered that two views are possible C.C. No. 26/12 05-11-2014 124 of 128
regarding the role attributed to accused No. 1, Swarn Singh. It is well settled, as discussed in para 10.6 above, that if on the basis of evidence led by prosecution, two views are possible, one pointing to the guilt of the accused and other to his innocence, the one in favour of the accused must be accepted. Thus, there is a reasonable doubt regarding the involvement of accused No.1, Swarn Singh in the conspiracy and commission of criminal misconduct by him.
Conclusions.
27.1 In view of the aforesaid discussion, it is considered that the prosecution has been able to prove beyond a reasonable doubt that,
(a) Both accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora entered into an agreement to cheat P & SB, Rajouri Garden Branch by deceiving and dishonestly and fraudulently inducing it to sanction term loan of Rs. 13 lacs and CC limit of Rs. 35 lacs and to release/disburse the same in the name of M/s Z.Z. Zippers Pvt Ltd., of which they were the Directors, by misrepresentation and using as genuine, forged documents.
(b) Accused No. 3, Yashpal Arora also deceived and dishonestly and fraudulently induced P & SB , Rajouri Garden Branch to sanction term loan of Rs. 13 lacs and CC limit of Rs. 35 lacs and release/disburse the same in the name of M/s Z.Z. Zippers Pvt Ltd. of which he was a Director, by misrepresentation and using as genuine forged documents, viz. forged conveyance deed, Ex.PW5/2 (also Ex.PW27/A-43 to Ex.PW27/A-48) of property No. 107, Roz-Ka-Meo, Industrial Area, Sohna, District Gurgaon, Haryana, forged quotation of M/s Prince Generators, Ex.PW2/2, forged audited balance sheet of the company for the years ending 31-01-1999, 31-03-2000 and 31-03-2001, C.C. No. 26/12 05-11-2014 125 of 128 Ex.PW27/A-36 to Ex.PW27/A-40, Ex.PW27/A-28 to Ex.PW27/A-32 and Ex.PW27/A-19 to Ex.PW27/A-25 respectively, forged attestation dated 22-10-2001 on letter, Ex.PW7/1 of signatures of both Directors by the Branch Manager, Central bank of India, Gurgaon, forged letter dated 30-10-2001, Ex.PW30/D in respect of forged conveyance deed issued by HUDA, Gurgaon and forged Assets and Liability Statement of guarantor Sanjay Verma, Ex.PW27/A-124, knowing or having reason to believe the same to be forged.
(c) Accused No. 4, Saroj Arora deceived and dishonestly and fraudulently induced P & SB, Rajouri Garden Branch, inter-alia, to release payment by issuing various cheques in CC Account No. 50089 of M/s Z.Z. Zippers Pvt. Ltd. in favour of NSIC (Gurgaon), causing the bank to believe that the same were issued in favour of National Small Industries Corporation (NSIC) but which were deposited in account No. 573 of New Scientific Industrial Chemicals (NSIC) of which accused No. 3, Yashpal Arora was the sole proprietor.
27.2 However, the prosecution has not been able to prove beyond a reasonable doubt that,
a) accused No. 1, Swarn Singh entered into any conspiracy with accused No. 3, Yashpal Arora or accused No. 4, Saroj Arora or that he committed any criminal misconduct as defined in section 13 (1) (d) of the PC Act, or
b) accused No. 3, Yashpal Arora or accused No. 4, Saroj Arora committed any forgery, or
c) accused No. 4, Saroj Arora used any forged document.
C.C. No. 26/12 05-11-2014 126 of 128 27.3 The points at para 9 are decided accordingly.
27.4 In view of the aforesaid, it is held that :-
(a) Accused No. 1 Swarn Singh is acquitted of the charges; (i) under section 120B r/w sections 420/467/468/471 IPC and section 13 (2) r/w section13 (1) (d) of the PC Act, 1988, and (ii) under section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988.
(b) Accused No. 3, Yashpal Arora and accused No. 4, Saroj Arora are guilty for commission of offence punishable u/s 120B read with sections 420/471 IPC and they are convicted accordingly.
(c) Accused No. 3, Yashpal Arora is also guilty for commission of offences punishable (I) u/s 420 IPC, and (ii) u/s 471 IPC read with sections 467 and 468 IPC and he is convicted accordingly.
(d) Accused No. 3, Yashpal Arora is acquitted of the charges (i) under section 467 IPC, and (ii) under section 468 IPC.
(e) Accused No. 4, Saroj Arora is also guilty for commission of offence punishable u/s 420 IPC and she is convicted accordingly.
(f) Accused No. 4, Saroj Arora is acquitted of the charges (i) under section 467 IPC, (ii) under section 468 IPC, and (iii) under section 471 IPC.
27.5 Sh. Swarn Singh is directed to furnish personal bond in the sum of Rs.1,00,000/- with one surety in the like amount, in terms of section 437A Cr.
P.C.
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27.6 Let the convicts be heard on the point of sentence on 07-11-2014.
Announced in the Open Court
today on 5th Day of November, 2014.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi
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