Delhi District Court
Cbi vs (1) Prabhat Sitaram Kudwa on 8 October, 2012
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &
ADDL. SESSIONS JUDGE, I/C (EAST) cum SPECIAL JUDGE
(CBI), KARKARDOOMA COURTS, DELHI.
AC No.07/2009
Unique Case ID No.02402R0088412009
FIR No.RC DAI 2006 A 0045
U/s 120B read with Section 420/468/471 IPC
and under Section 13(2) r/w Sec. 13(1)(d) of PC Act, 1988.
CBI Versus (1) Prabhat Sitaram Kudwa
S/o Late Sh. S.A. Kudwa
R/o A8, Awadh Apartment,
Vipul KhandI, Gomati Nagar,
Lucknow (UP)
(2) Prashant Laxman Mahale
S/o Late Sh. Laxman Mahale
R/o Flat No.B6, Mahalasa Niwas,
II Floor, Devashree Enclave,
Sangolda, Porvorim, Goa.
(3) Meerajuddin
S/o Sh. Bashiruddin
R/o T539, Gali No.14,
Gautamipuri, Delhi.
(4) Kashimuddin
S/o Sh. Bashiruddin
AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 1 of 41
R/o T539, Gali No.14,
Gautamipuri, Delhi.
(5) Jagdeep Singh Gill
S/o Sh. Gurcharan Singh
R/o 616617, Sector6, Vaishali,
Ghaziabad (UP)
Date of Institution : 20.03.2009
Date of judgment reserved : 24.09.2012
Date of judgment : 05.10.2012
JUDGMENT
Five accused persons, namely, Prabhat Sitaram Kudwa, Prashant Laxman Mahale, Meerajuddin, Kashimuddin and Jagdeep Singh Gill have been sent to face trial by the Anti Corruption Branch of the CBI, for the offences punishable under sections 120B read with Section 420/468/471 IPC and under Section 13(2) r/w Sec. 13(1)(d) of PC Act, 1988.
2 At the time of commission of the offence, accused Prabhat Sitaram Kudwa was posted as Sr. Manager, whereas accused Prashant Laxman Mahale was posted as Officer of Corporation Bank, Vasundhra Enclave Branch, New Delhi. Accused Meerajuddin, Kashimuddin and Jagdeep Singh Gill are the private persons. AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 2 of 41 3 Briefly stating, the facts of the present case are that a written complaint dated 31.10.2006 Ex.PW5/A was made by Sh. K.V. Raghav Kamath, DGM, Corporation Bank to the CBI to the effect that during the period 2.4.2004 to 29.09.2004, accused Prabhat Sitaram Kudwa was working as Branch Manager, Corporation Bank, Vasundhra Enclave Branch who sanctioned and disbursed 13 Home loans amounting to Rs.86.58 lacs and one loan under Corp. Meditech Scheme for Rs.15 lacs for purchasing medical equipments. It was alleged that the said loans were disbursed by accused Prabhat Sitaram Kudwa by violating banking laws without proper verification of properties. Apart from other loans, it was alleged that Corp Home Loan No.166/2004 for Rs.6 lacs was sanctioned to accused Meerajuddin and Kashimuddin towards purchase of flat no.G1, Stilt Floor, Plot No.6/221, Sector6, Vaishali, Ghaziabad. It was alleged that during verification it was revealed that no such flat existed and thus the agreement to sell and other documents furnished by the loanee were false and fabricated. It was also alleged that accused Prabhat Sitaram Kudwa sanctioned and disbursed the loan without presanction verification. It was also revealed that accused Prabhat Sitaram Kudwa disbursed an amount of Rs.2.10 lacs on the pretext of AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 3 of 41 furnishing the flat which was not existing and thus he facilitated the borrowers to avail the excess amount to which the borrowers were not otherwise entitled.
4 On the basis of complaint Ex.PW5/A, FIR Ex.PW7/A was registered and its investigation was entrusted to Inspector Sushil Kumar (PW7). During the course of investigation, he seized various documents including copy of extracts of Manual on Home Loan Ex.PW5/B vide seizure memo Ex.PW6/A. He seized loan file Ex.PW5/C vide seizure memo Ex.PW6/B. Vide letter dated 25.4.2008 Ex.PW6/C, IO received Account Opening form along with related documents Ex.PW3/A in respect of SB Account No. 4954 in the name of accused Kashimuddin with Corporation Bank, Vasundhra Enclave. He also received statement of account Ex.PW5/D of the said account.
5 On 27.07.2008, Sh. Shrinath Kamath (PW6) handed over vouchers including original pay order dated 21.08.2004 Ex.PW6/E in the sum of Rs. 4,40,000/ in the name of accused Merajuddin and Kashimuddin to the IO which was seized vide seizure memo Ex.PW6/D. 6 On 23.10.2008, a team was constituted by the IO AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 4 of 41 (PW7) including Sh. D.K. Sharma (PW2), Junior Engineer,PWD and the then Branch Manager. They all went to accused Jagdeep Singh Gill who took the team to flat in question. During inspection, it revealed that no such flat was in existence and instead it was a covered garage and a physical inspection memo Ex.PW2/A in this regard was prepared. Vide letter dated 26.02.2008 Ex.PW1/B, IO received certified copy of sale deed Ex.PW1/A of flat in question from the office of SubRegistrar IV, Ghaziabad. 7 On 4.7.2008, specimen signatures of accused Jagdeep Singh Gill on sheets Ex.PW7/B1 to B5 were obtained. On 11.8.2008, specimen signatures of accused Meerajuddin and Kashimuddin on sheets Ex.PW7/C1 to C4 and Ex.PW7/D1 to D4 respectively were obtained. Original documents as well as specimen signatures of accused Jagdeep Singh Gill, Meerajuddin and Kashimuddin were sent to GEQD, CFSL, Chandigarh vide letter Ex.PW4/A. In GEQD, Chandigarh, documents were examined by Sh. Abhimanyu Kumar (PW4), AGEQD who gave his opinion Ex.PW4/B and detailed reasons Ex.PW4/C. After examination, report along with reasons and documents were forwarded to CBI vide letter Ex.PW4/D. 8 Sanction for prosecution of accused Prashant Laxman AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 5 of 41 Mahale was accorded by Sh. Thomas George (PW1), the then Assistant General Manager, Personnel Administration Division, Corporation Bank, Head Office, Manglore vide sanction order Ex.PW1/A. No sanction for prosecution of accused Prabhat Sitaram Kudwa was obtained as he was already dismissed from service. 9 After completion of the investigation, the challan was put up in the court where accused persons were supplied with the copies of the chargesheet and the documents of the CBI. 10 The charge under sections 120B r/w 420, 468, 471 IPC and 13(2) read with 13(1)(d) of P.C. Act was framed against all the accused persons. Separate charges under Section 420 IPC and under Section 13(2) read with 13(1)(d) of P.C. Act were framed against accused Prabhat Sitaram Kudwa. Separate charge under Sections 420, 468, 471 IPC and under Section 13(2) read with 13(1)
(d) of the P.C. Act was framed against accused Prashant Laxman Mahale. Separate charge for offence punishable under Section 420/468/471 IPC was also framed against accused Meerajuddin, Kashimuddin and Jagdeep Singh Gill. Accused persons pleaded not guilty to the charges framed against them and claimed trial. 11 The prosecution has examined 8 witnesses in support AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 6 of 41 of its case. Out of those witnesses, PW1 Thomas George was the sanction authority who accorded sanction for prosecution of accused Prashant Laxman Mahale. PW Sh. Mustafa Khan was the Registration Clerk, Office of SubRegistrarIV, Ghaziabad who proved the sale deed of property no.G1, 6/221, Sector6, Vaishali. PW2 Sh. D.K. Sharma being Junior Engineer of PWD, conducted inspection of the property in question. PW3 Sh. Mohd. Ali introduced accused Kashimuddin in opening account. PW4 Sh. Abhimanyu Kumar examined the documents and specimen signatures of accused persons in CFSL. PW5 Sh. V.S.V. Nagesh was the then Manager/Sr. Manager, Vigilance cell, Delhi of the Corporation Bank, whereas PW6 Sh. Shrinath Kamath was the then Chief Manager of Corporation Bank. PW7 Inspector Sushil Kumar is the IO of the case. 12 Statements of accused persons have been recorded under Section 313 Cr.P.C. Accused Prashant Laxman Mahale has stated that while preparing verification report on file Ex.PW5/C, he relied upon on his officers and other persons and he prepared his report to be correct as per his knowledge. He has also stated that during departmental inquiry, he was found to have committed no crime. Accused Prabhat Sitaram Kudwa in his statement has stated AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 7 of 41 that he had not done anything wrong, he is innocent and has been falsely implicated. Accused Meerajuddin and Kashimuddin have stated in their statement that settlement with the bank has already been arrived at and a sum of Rs.5.5 lacs has been deposited with the bank and no dues certificate was issued by the bank. Accused Jagdeep Singh Gill in his statement stated that there was a flat on the address and same is still in existence. There was no transaction between him and the bank. He had not entered into any agreement to sell with coaccused with regard to flat in question. He sold the flat and executed sale deed in favour of coaccused. Pay order in question for Rs.4.4 lacs was handed over to him by coaccused at the time of execution of sale deed.
13 All the accused except accused Prashant Laxman Mahale opted to lead evidence in their defence. However, no defence evidence was led by accused persons.
14 I have heard Shri S. Krishna Kumar, learned PP for the CBI as well as Ld. Counsels for accused persons. I have also carefully gone through their submissions and the material available on record.
AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 8 of 41 Criminal conspiracy 15 To prove the conspiracy between accused persons, prosecution has examined Sh. V.S.V. Nagesh (PW6) who stated that he was posted as Manager/Sr. Manager in Vigilance Cell and conducted internal investigation. He stated that accused Prabhat Sitaram Kudwa was working as Branch Head in Vasundhra Enclave Branch of Corporation Bank. He proved the Manual of Instructions on Housing Loans as Ex.PW5/B. He also proved the loan file of the present case as Ex.PW5/C along with the approved construction plan. He further stated that accused Mirajuddin and Kashimuddin applied loan for purchase of flat G1, located at plot No.221, Sector 6, Vaishali. Accused Prabhat Sitaram Kudwa submitted due diligence report as per which he contacted Sujauddin and D.Malik for confirmation of identity of applicant. Loan was sanctioned on the basis of agreement for sale and finishing agreement dated 20.07.2004. No document evidencing margin money was obtained and accused Prabhat Sitaram Kudwa relied on the declared amount. Accused Prabhat Sitaram Kudwa obtained photocopies of Income Tax Returns of accused Mirajuddin and Kashimuddin but did not verify the same with originals. Witness stated that during verification, copies of IT AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 9 of 41 Return placed at page 73 of loan file Ex.PW5/C was found fabricated. He further deposed that accused Prashant Mahale submitted verification report dated 20.08.2004 to the effect that he had visited the flat in question which was found ready to occupy. Thereafter, accused Prabhat Sitaram Kudwa sanctioned Housing Loan of Rs. 6 lacs. Before sanctioning appraisal was not conducted to ascertain how the repayment capacity was arrived at. The appraisal dated 28.08.2004 at page 58 to 64 of loan file Ex.PW5/C was not signed by any officer which indicated that the loan was sanctioned by accused Prabhat Sitaram Kudwa without proper appraisal. 16 He further deposed that he visited plot No.221, Sector 6, Vaishali where no flat bearing No.G1 as mentioned in the sale deed was found. He conducted inspection along with accused Prashant Laxman Mahale and Jagdeep Singh Gill but both of them failed to point out any flat bearing No.G1 which indicated that accused Prashant Laxman Mahale did not conduct presanctioning visit while submitting his report. He further deposed that loan amount was disbursed by accused Prabhat Sitaram Kudwa without conducting postsanction visit.
17 Perusal of loan file Ex.PW5/C shows that application AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 10 of 41 at page 7172 was moved by accused Mirajuddin and Kashimuddin for taking home loan under Corp Home Scheme for purchase of a flat bearing No.G1, Plot No.221, Sector 6, Vaishali, Ghaziabad. Name of the seller of the said flat was mentioned as M/s Ideal Home. Vide this application, loan of Rs.6 lacs was sought.
18 As per Manual of Instructions on Housing loans Ex.PW5/B, before sanction of loan, Branch Managers were required to carry out verification. The genuineness of income proof of the applicants had to be strictly verified. The repayment capacity of the applicant was also to be determined. It was also required that original documents should be called for verification at the time of appraisal of the loan. For purchase of flat, property mortgaged was required to be inspected and identified. It was also required that margin for purchase of flat was brought by the applicant from his own sources. Repayment capacity of applicants was also required to be arrived at. 19 In the present case, it has come in evidence that accused Mirajuddin and Kashimuddin applied for Home loan for purchase of flat No.G1, Plot No.6/221, Vaishali, Ghaziabad from Corporation Bank where accused Prabhat Sitaram Kudwa was posted as Branch Head being Sr. Manager and accused Prashant Laxman AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 11 of 41 Mahale was posted as an officer. The said flat was alleged to be purchased from M/s Ideal Home whose proprietor was accused Jagdeep Singh Gill.
20 As per testimony of PW5 Sh. V.S.V. Nagesh, when he physically inspected the site of flat in question along with accused Prashant Laxman Mahale and Jagdeep Singh Gill, they failed to point out the said flat. So, as per version of PW5, no such flat was in existence, rather it was a covered garage. Testimony of PW5 has been corroborated by PW2 Sh. D.K. Sharma, Junior Engineer, PWD who also deposed that he inspected plot No.6/221, Sector 6, Ghaziabad and did not find any flat No.G1, rather it was like a garage. He also stated that the inspection was done in the presence of accused Jagdeep Singh Gill and IO Inspector Sushil Kumar. Inspector Sushil Kumar (PW7) also corroborated the testimony of PW5 and PW2 that no such flat was in existence and it was a covered garage. The testimony of witnesses has also been substantiated by a physical inspection memo Ex.PW2/A which shows that PW2 D.K. Sharma and PW7 Inspector Sushil Kumar conducted physical inspection of plot No.6/221, Sector 6, Vaishali, Ghaziabad where accused Jagdeep Singh Gill pointed out flat No. G1 on the ground AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 12 of 41 floor. During inspection, it was found that said flat was a garage. 21 So, as per testimony of PW5 Sh. V.S.V. Nagesh, there was no flat bearing No. G1 was existing at plot No. 6/221, sector 6, Vaishali, Ghaziabad for which loan was applied by accused Mirajuddin and Kashimuddin allegedly purchased from accused Jagdeep Singh Gill.
22 In the present case, it is alleged that no presanction verification of the property in question was got conducted by accused Prabhat Sitaram Kudwa. As per Manual Ex.PW5/B, Branch Head of the Bank was required to verify the property proposed to be purchased prior to sanction of home loan. In the present case, accused Prashant Laxman Mahale gave verification report dated 20.08.2004 appearing at page 69 of loan file Ex.PW5/C. In this report, accused Prashant Laxman Mahale mentioned that he verified the existence of property with the builder and made his remarks "visited the flat at Ideal Homes, Sector 6, Vaishali. Flat ready to live in". As per report of accused Prashant Laxman Mahale, the flat was in existence. But as per testimony of PW5 Sh. V.S.V.Nagesh which has duly been corroborated by PW2 D.K. Sharma, PW7 Inspector Sushil Kumar and verification memo Ex.PW2/A, no such AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 13 of 41 flat was in existence to live in. So, this presanction report was prepared by accused Prashant Laxman Mahale without visiting the site. Even, it was the duty of accused Prabhat Sitaram Kudwa to verify the property before sanctioning of loan amount, but he had not done so individually. All this shows that accused Prabhat Sitaram Kudwa and Prashant Laxman Mahale hatched a criminal conspiracy with his coaccused persons while sanctioning the loan amount for the flat which was never in existence.
23 It has also come in evidence that the sale deed Ex.PW1/DA submitted by accused Meerajuddin and Kashimuddin with the bank as collateral security was found to be forged one as there were several alterations in the same. Witness Mustafa Khan, official from SubRegistrarIV, Ghaziabad, U.P. has proved the copy of sale deed registered with the SubRegistrar as Ex.PW1/A. He has deposed that in the sale deed Ex.PW1/DA there were several several cuttings and corrections and the said sale deed was not the same which was got registered with the office of SubRegistrar. 24 Accused Meerajudin and Kashimuddin also submitted forged income tax return along with their loan application, which is apparent from the testimony of PW5 Sh. V.S.V. Nagesh. As AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 14 of 41 per manual Ex.PW5/B, accused Prabhat Sitaram Kudwa was required to verify the photocopies of documents with their originals, but the perusal of loan file Ex.PW5/C shows that there is no attestation by accused Prabhat Sitaram Kudwa to the effect that he verified the copies of documents submitted along with loan application with their originals. Even accused Prabhat Sitaram Kudwa also did not verify whether the margin money was paid by accused Meerajudin and Kashimuddin towards purchase of flat before sanction of the loan amount. He also did not ascertain the repayment capacity of both these accused persons.
25 All the above acts by accused persons clearly proves that accused Meerajuddin and Kashimuddin obtained home loan from Corporation Bank for purchase of flat from accused Jagdeep Singh Gill and all of them submitted forged and fabricated documents and used the same as genuine in securing loan amount. It has also been duly established that accused Prashant Laxman Mahale gave false presanction report in favour of accused persons that the flat was existing, however it has been established otherwise that no such flat was in existence. It has further been established that accused Prabhat Sitaram Kudwa had not acted diligently while sanctioning loan AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 15 of 41 amount. It has been proved that accused Prabhat Sitaram Kudwa and Prashant Laxman Mahale, being public servants criminally conspired with their other coaccused persons in forging documents and using them as genuine in securing loan from the bank with a view to cheat the bank.
26 Defence taken by accused Prashant Laxman Mahale that he was not found guilty in the departmental enquiry on the same allegations, is of no consequence inasmuch it is a settled law that the findings of Court are not bound by the departmental proceedings. 27 It is a settled law that conspiracies are hatched in the pitch dark secrecy and direct evidence of those are hardly available. In this respect, the Hon'ble Supreme Court has observed in the case titled K.R. Purushothaman vs. State of Kerala, AIR 2006 SC 35 that to constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by an illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every details of the conspiracy. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy and its objects are usually deduced from AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 16 of 41 the circumstances of the case and the conduct of the accused involved in the conspiracy. The criminal conspiracy is an independent offence in Indian Penal Code. The unlawful agreement is sine qua non for constituting offence under Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two of more persons which may be express or implied or partly express and partly implied. The offence of conspiracy shall continue till the termination of the agreement. 28 In another case titled Shivnarayan Laxminarayan Joshi Versus State of Maharashtra (reported in 1980 SCC (Cri.)
493), the Hon'ble Supreme has observed that it is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same.
29 Keeping in view the above clear and cogent evidence, prosecution has successfully established that there was criminal conspiracy between the accused persons and common object of which was to cheat the bank. Therefore, I am of the considered opinion that all the accused persons criminally conspired with each other to avail loan facility by submitting forged and fabricated documents and using them as genuine and thus cheated the bank by causing financial loss AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 17 of 41 to the bank to the tune of Rs.6 lacs.
30 Consequently, all the accused persons are hereby held guilty for commission of offences punishable under Section 120 B IPC read with Sections 420/468/471 IPC and under Section 13(2) read with 13(1)(d) of P.C. Act, 1988.
Forgery & Cheating 31 It is alleged against accused Meerajuddin, Kashimuddin and Jagdeep Singh Gill that they committed forgery in the documents with regard to flat No.G1, 6/221, Sector 6, Vaishali, Ghaziabad and used the same as genuine and on the basis of same, managed to obtain loan from the bank and thus cheated the bank. 32 It is alleged against accused Prabhat Sitaram Kudwa that he fraudulently and dishonestly sanctioned and disbursed loan of Rs. 6 lacs in favour of his coaccused persons without verifying the documents and thus cheated the bank. It is also alleged against Prashant Laxman Mahale that he prepared a false and fabricated verification report with regard to existence of flat which was not in existence knowing well that same was forged, it was used as genuine for grant of loan in favour of coaccused persons and thus committed cheating.
AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 18 of 41 33 To prove the forgery committed by accused Meerajuddin, Kashimuddin and Jagdeep Singh Gill, PW5 Sh. V.S.V. Nagesh has deposed that as per loan file Ex.PW5/C, loan application was moved by accused Meerajuddin and Kashimuddin on 12.08.2004. The loan was sanctioned on the basis of agreement for sale dated 20.07.2004 and finishing agreement. The loan amount was disbursed through SB A/C No.4954 opened in the name of accused Kashimuddin. As per statement of account Ex.PW5/D, an amount of Rs.1.6 lacs was disbursed on 26.08.2004 through the accused of accused Kashimuddin. Remaining amount of Rs.4.4 lacs was disbursed to M/s Ideal Home of which accused Jagdeep Singh Gill was proprietor through Pay Order. He further deposed that he visited plot No.221, Sector 6, Vaishali but no flat bearing No. G1 as mentioned in the sale deed was found. He conducted inspection along with accused Prashant Laxman Mahale and Jagdeep Singh Gill but they failed to point out any flat bearing No. G1. Witness was cross examined at length but the defence has failed to put any dent on his testimony.
34 Loan application form submitted by accused Meerajuddin and Kashimuddin is at page 71 and 72 of loan file AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 19 of 41 Ex.PW5/C. Perusal of application form shows that loan of Rs.6 lac was applied for by accused persons for purchase of flat No.G1, plot No.221, Sector 6, Vaishali, Ghaziabad from M/s Ideal Home, proprietor of which accused Jagdeep Singh Gill. Along with loan application form sale deed dated 23.08.2004 Ex.PW1/DA was annexed. Perusal of this sale deed shows that flat to be purchased was of the area admeasuring 62 sq.meters.
35 PW1 Sh. Mustafa Khan, registration clerk, office of SubRegistrarIV, Ghaziabad, produced the original sale deed dated 23.08.2004 of the said flat registered with the office of SubRegistrar and proved the copy of same as Ex.PW1/A. During cross examination, he stated that sale deed Ex.PW1/DA was a tampered version of sale deed Ex.PW1/A registered with his office. He also stated that the seller had not executed any sale deed with respect to area of 62 sq. yards in favour of purchaser and as per their record, the area was approximately 32 sq. meters. He also stated that there was no signatures of the seller on any cutting as there was no correction on the original sale deed with their record. He further stated that measurement of site plan annexed with sale deed Ex.PW1/DA was different with the site plan filed with the sale deed in their record. AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 20 of 41 36 Perusal of sale deed Ex.PW1/DA shows that accused Meerajuddin, Kashimuddin and Jagdeep Singh Gill mentioned the area therein as 62 sq. meters of the flat in question at page 1 and 6. But the perusal of sale deed Ex.PW1/A proved by Registration Clerk of the office of SubRegistrar shows that area mentioned therein was 32 sq. meters. In the sale deed Ex.PW1/DA, there are signatures of these accused persons on the corrections but in the sale deed Ex.PW1/A, no such corrections or signatures are found. The site plan annexed with sale deed Ex.PW1/DA is also different from the site plan annexed with sale deed Ex.PW1/A, which clearly goes to prove that accused Meerajuddin, Kashimuddin and Jagdeep Singh Gill committed forgery in the documents submitted for grant of loan. 37 As per testimony of PW5 Sh. V.S.V.Nagesh, when he inspected the site, he did not flat any flat bearing No.G1 at the given address which was proposed to be purchased by accused Meerajuddin and Kashimuddin from accused Jagdeep Singh Gill. Testimony of PW5 has duly been corroborated by PW2 Sh. D.K.Sharma, Junior Engineer of PWD and also by PW7 Inspector Sushil Kumar. Both these witnesses have also stated that they physically verified the site and did not find any flat bearing No.G1, rather it was a covered AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 21 of 41 garage. Verification memoEx.PW2/A also corroborates the testimony of these witnesses to the effect that no such flat bearing No. G1 was in existence for which loan was applied and loan amount of Rs. 6 lacs was sanctioned and disbursed.
38 Forgery in the documents by accused Meerajuddin, Kashimuddin and Jagdeep Singh has also been established from the opinion of Expert PW4 Sh. Abhimanyu Kumar. His opinion Ex.PW4/B and Ex.PW4/C shows that original sale deed Marked Q59 to Q110 executed between them was sent to the Government Examiner of Questioned Documents along with specimen signatures of accused Jagdeep Singh Gill marked S37 to S41, of accused Meerajuddin marked S47 to S50 and of accused Kashimuddin marked S55 to S58. As per opinions Ex.PW4/B and Ex.PW4/C, signatures of accused Jagdeep Singh Gill, Meerajuddin and Kashimuddin on the sale deed matched with their specimen signatures. So, the opinion of expert also establishes that forgery in the documents was committed by these accused persons.
39 It has also come in evidence that accused persons managed to get the loan in two installments i.e. of Rs. 1.6 lacs and Rs. 4.4 lacs. Statement of account Ex.PW5/D in respect of account No. AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 22 of 41 4954 in the name of accused Kashimuddin shows that a sum of Rs. 1.6 lacs was disbursed on 26.08.2004, whereas sum of Rs. 4.4 lacs was disbursed on 21.08.2004 through Pay Order issued in favour of M/s Ideal Home. So, the prosecution has successfully established that accused Meerajuddin, Kashimuddin and Jagdeep Singh Gill committed forgery in the documents and used the same as genuine and on the basis of forged documents, managed to get housing loan of Rs. 6 lacs from the bank and thus cheated the bank. 40 So far as preparation of false and fabricated report by accused Prashant Laxman Mahale is concerned, PW5 Sh. V.S.V. Nagesh has deposed that accused Prashant Laxman Mahale submitted verification report dated 20.08.2004 to the effect that he had visited the flat located at Ideal Home, Sector6/221, Vaishali and that the flat was ready to occupy. He stated that the said report is at page 69 of file Ex.PW5/C. Witness also stated that he conducted inspection of the said property along with accused Prashant Laxman Mahale and Jagdeep Singh Gill who failed to point out any flat no.G1 at the said address which indicated that accused Prashant Laxman Mahale did not conduct presanction visit while submitting his report. 41 As per testimony of PW5 who himself went to AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 23 of 41 physically verify the flat no.G1, no such flat was in existence for which loan amount was disbursed. Testimony of PW5 has been corroborated by PW2 and PW7 also who deposed that when they conducted inspection at the site, no flat bearing no.G1 was found in existence rather it was a covered garage. Inspection memo Ex.PW2/A also establishes that no flat no.G1 was in existence for which loan was applied and disbursed. So, the prosecution has successfully established that the verification report given by accused Prashant Laxman Mahale appearing at page 69 of loan file Ex.PW5/C to the effect that flat no.G1 was in existence, was false and fabricated and same has been given by him without visiting the site. It has been duly proved that this verification report was prepared by accused Prashant Laxman Mahale knowingly well that the said flat was not in existence and the same was used as genuine, on the basis of which loan of Rs.6 lacs was sanctioned to coaccused Meerajuddin and Kashimuddin and thus accused Prashant Laxman Mahale cheated the bank.
42 So far as accused Prabhat Sitaram Kudwa is concerned, it is alleged against him that the fraudulently and dishonestly sanctioned and disbursed loan amount of Rs.6 lacs in AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 24 of 41 favour of accused Meerajuddin and Kashimuddin without verification of documents and thus cheated the bank.
43 It has already come in evidence that at the relevant period, accused Prabhat Sitaram Kudwa was posted as Senior Manager of the Bank. He was duty bound to verify the documents submitted along with loan application forms. As per manual Ex.PW5/B under the Corp Home Scheme, the branch head of the bank was required to verify the documents submitted along with application form from their originals. It was also required by the branch head to conduct presanction and postsanction verification of the property to be purchased. As per manual Ex.PW5/B, it was also required that the purchaser of property must show the payment of margin money before sanctioning of loan amount and the bank was required to ascertain the repayment capacity of the borrowers. 44 In the present case, it has come in the testimony of PW5 Sh. V.S.V. Nagesh that no presanction or postsanction verification of the property bearing flat no.G1, Plot No.221, Sector6, Vaishali, Ghazibad was conducted by accused Prabhat Sitaram Kudwa either before sanction of loan or thereafter. It has already been established that presanction verification of flat in AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 25 of 41 question was not conducted by accused Prashant Laxman Mahale who gave his report that the flat was existing and ready for occupation. The said report of accused Prashant Laxman Mahale has been established to be false and fabricated. So far as postsanction verification of the property to be purchased is concerned, there is no document or note on record that accused Prabhat Sitaram Kudwa conducted any postsanction verification of the property for the purchase of which loan was sanctioned.
45 It has already been established from the testimony of PW5 Sh. V.S.V. Nagesh that no such flat bearing no.G1 was in existence. Testimony of PW5 has duly been corroborated by PW2 and PW7 as well as by memo Ex.PW2/A to the effect that no flat bearing no.G1 was in existence for which loan was applied for, rather it was a covered garage. It has also been established that accused Prabhat Sitaram Kudwa did not verify the income tax return of accused Meerajuddin and Kashimuddin from their originals. No document has been obtained by the accused Prabhat Sitaram Kudwa nor any noting was made by him to ascertain whether the margin money was paid by accused Meerajuddin and Kashimuddin to the seller of the flat before sanctioning of loan amount. He had also not AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 26 of 41 ascertained the loan repayment capacity of accused persons. In this way, accused Prabhat Sitaram Kudwa violated the guidelines envisaged in the banking manual Ex.PW5/B meant for grant of home loans. So, the prosecution has duly established that accused Prabhat Sitaram Kudwa did not verify the documents submitted by accused Meerajuddin and Kashimuddin before fraudulently and dishonestly sanctioning and disbursing loan amount of Rs.6 lacs to them and thus committed cheating with the bank. It has already been established that loan amount of Rs.6 lacs was disbursed to accused persons through their bank account.
46 From aforesaid discussion, prosecution has been able to prove its case against accused Meerajuddin, Kashimuddin, Jagdeep Singh Gill and Prashant Laxman Mahale under Section 420, 468 & 471 IPC. Prosecution has also been able to prove its case against accused Prabhat Sitaram Kudwa under Section 420 IPC. Criminal misconduct 47 Accused Prabhat Sitaram Kudwa and Prashant Laxman Mahale have also been charged for commission of offences punishable under Section 13(2) read with section 13(1)(d) of P.C. Act. It is alleged against accused Prabhat Sitaram Kudwa that while AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 27 of 41 working as Sr. Manager of Corporation Bank, Vasundhra Enclave Branch he sanctioned loan under Corp Home Scheme to his co accused Meerajudding and Kashimuddin without duly verifying documents and without conducting presanction and postsanction verification of the flat in question.
48 It has come in evidence that accused Meerajuddin and Kashimuddin applied for a loan for purchase of a flat bearing no.G1, Plot No.6/221, Sector6, Vaishali, Ghaziaband under Corp Home Scheme for a sum of Rs.6 lacs. Appraisal report dated appearing on the back side of page 72 of loan file Ex.PW5/C made by accused Prabhat Sitaram Kudwa shows that he misused his official position and facilitated his coaccused persons inasmuch as accused Prabhat Sitaram Kudwa sanctioned a sum of Rs.6 lacs without verifying the property to be financed. As per Manual Ex.PW5/B, loan under Corp Home Scheme could be granted after due verification of property to be purchased, after due diligence, after comparing the copies of documents submitted with their originals, after ascertaining repayment capacity of borrowers, payment of margin money by borrowers from their own funds etc. But accused Prabhat Sitaram Kudwa by abusing his official position sanctioned and disbursed loan AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 28 of 41 to his coaccused persons on the basis of report of his coaccused Prashant Laxman Mahale to the effect that the flat was habitable. The said report of accused Prashant Laxman Mahale was found to be incorrect at the time of physical inspection. During inspection by IO (PW7), PW5 and PW2, it was found that no such flat was in existence rather it was a covered garage.
49 It has also come in evidence that accused Prabhat Sitaram Kudwa had not compared the documents submitted by his co accused persons with their originals. Appraisal note at page 58 to 64 in the loan file Ex.PW5/C also shows nondiligence by accused Prabhat Sitaram Kudwa as the same has not been signed by him being branch head of the bank. It has also come in evidence that accused Prabhat Sitaram Kudwa had not ascertained whether the borrowers i.e. coaccused persons were having repayment capacity to pay the loan amount or not. As per manual Ex.PW5/B, accused Prabhat Sitaram Kudwa was required to having documents in support of margin money paid by accused Meerajuddin and Kashimuddin prior to disbursal of loan amount. But accused Prabhat Sitaram Kudwa had not verified whether the margin money was paid by his coaccused persons out of their funds or not.
AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 29 of 41 50 Accused Prabhat Sitaram Kudwa had also not conducted any postsanction verification of the property to be purchased. Without verifying the flat in question, accused Prabhat Sitaram Kudwa while abusing his official position, violated the guidelines envisaged in manual Ex.PW5/B and thus facilitated his co accused persons in disbursing loan amount to them. 51 So far as accused Prashant Laxman Mahale is concerned, it has come in evidence that he prepared a false and fabricated report appearing at page 69 of loan file Ex.PW5/C. This report was prepared by accused Prashant Laxman Mahale to the effect that he personally visited the flat no.G1 and found that the same was in habitable condition. But, during investigation and also during the course of evidence, it has been established that no such flat was in existence, rather it was a covered garage. As per statement of PW5 Sh. V.S.V. Nagesh, no such flat was in existence at the given address. His testimony has duly been corroborated by PW2 Sh. D.K. Sharma, PW7 Inspector Sushil Kumar and Inspection memo Ex.PW2/A. 52 Since it has been established that no flat bearing no.G1 was in existence for which loan was applied for, the report given by accused Prashant Laxman Mahale was false and fabricated AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 30 of 41 as the same was given by him without visiting the property to be purchased. It has duly been established that accused Prashant Laxman Mahale has prepared false and fabricated report knowingly well that the property was not in existence and the same was used as genuine on the basis of which loan was sanctioned to accused Meerajudding and Kashimuddin.
53 Consequently, it has been duly established by the prosecution that accused Prabhat Sitaram Kudwa and Prashant Laxman Mahale being public servants and while posted as Sr. Manager and Officer of Corporation Bank abused their official positions by causing wrongful loss to the bank and corresponding wrongful gain to their coaccused persons.
54 So far as sanction for prosecution of accused Prashant Laxman Mahale is concerned, PW1 Sh. Thomas George has proved the sanction order dated 26.02.2009 issued by him as Ex.PW1/A. He deposed that he granted sanction after going through the statement of witnesses and documents which were put up before him through the disciplinary department. This witness was cross examined on behalf of accused Prashant Laxman Mahale, but he failed to put any dent to his testimony. So, the prosecution has duly AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 31 of 41 established that PW1 was competent to accord sanction for prosecution of accused Prashant Laxman Mahale and defence has failed to show that the same was accorded without application of mind.
55 Therefore, accused Prabhat Sitaram Kudwa and Prashant Laxman Mahale are held guilty under Section 13(2) read with Section 13(1)(d) of the P.C.Act.
Conclusion 56 It has been established by the prosecution that all the accused persons entered into a criminal conspiracy and common object of which was to cheat the bank by committing forgery and fabrication in the documents and using the same as genuine. Accused Prashant Laxman Mahale prepared false and fabricated report to the effect that flat purchased by accused Meerajuddin and Kashimuddin from accused Jagdeep Singh Gill was existing, but during evidence it has been established that no such flat was in existence. Accused Prabhat Sitaram Kudwa had not conducted any verification of the documents and the property to be mortgaged and facilitated co accused persons. Prosecution has convincingly proved the nexus between accused persons to the effect that on the basis of forged and AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 32 of 41 fabricated documents, loan was sanctioned and disbursed causing financial loss to the bank and corresponding gain to accused persons. 57 It has also been proved that accused Meerajuddin and Kashimuddin committed forgery in the Sale Deed submitted by them towards collateral security in securing the loan amount. It has also been proved that the documents annexed with the loan application were forged and fabricated as no flat in question was ever in existence. Accused Jaideep Singh Gill posed as seller of flat no.G1, plot no.6/221, Sector6, Vaishali, Ghaziabad but during evidence it has been established that no such flat was in existence and thus he managed to get the loan amount in his favour through his coaccused Meerajuddin and Kashimuddin. The said forged documents were used as genuine by these accused persons with the purpose to cheat the bank for obtaining loan amount.
58 It has further been established that accused Prashant Laxman Mahale prepared forged and fabricated report to the effect that he visited the site and found flat in habitable condition knowing well that the same was forged and farbicated on the basis of which co accused Meerajuddin and Kashimuddin managed to get the loan amount sanctioned and disbursed and thus cheating has been AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 33 of 41 committed with the bank. Accused Prabhat Sitaram Kudwa sanctioned the loan of Rs.6 lacs to his coaccused persons Meerajuddin and Kashimuddin without conducting presanction and postsanction verification of the property to be purchased. Accused Prabhat Sitaram Kudwa had also not compared the copies of documents submitted by his coaccused persons with their originals to verify the same. He had also not ascertained the repayment capacity of coaccused persons and also did not verify whether the margin money was paid by them out of their own sources. Thus, it has been established that accused Prabhat Sitaram Kudwa and Prashant Laxman Mahale abused their official positions being public servants while posted as Senior Manager and Officer respectively of Corporation Bank, Vasundhara Enclave Branch and bypassed the guidelines of bank by sanctioning and disbursing the loan amount. Thus, by abusing his official position as public servants, accused Prabhat Sitaram Kudwa and Prashant Laxman Mahale facilitated co accused Meerajuddin, Kashimuddin and Jagdeep Singh Gill in obtaining loan under Corp Home Scheme to the tune of Rs.6 lacs and causing wrongful loss to the bank.
59 Consequently, all the accused persons, namely, AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 34 of 41 Prabhat Sitaram Kudwa, Prashant Laxman Mahale, Meerajuddin, Kashimuddin and Jagdeep Singh Gill are hereby held guilty under Section 120B IPC read with Sections 420/468/471 IPC and 13(2) read with Section 13(1)(d) of P.C. Act. Accused Prashant Laxman Mahale, Meerajuddin, Kashimuddin and Jagdeep Singh are also held guilty under Sections 420, 468 & 471 IPC. Accused Prabhat Sitaram Kudwa is also held guilty under Section 420 IPC and under Section 13(2) read with Section 13(1)(d) of the P.C. Act. Accused Prashant Laxman Mahale is also held guilty under Section 13(2) read with Section 13(1)(d) of the P.C. Act. All the accused persons are convicted accordingly.
Announced in the open Court ( P.S. TEJI )
Dated: 05.10.2012 District Judge & ASJ, I/C (East)
Special Judge (CBI)
Karkardooma Courts : Delhi
AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 35 of 41
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &
ADDL. SESSIONS JUDGE, I/C (EAST) cum SPECIAL JUDGE (CBI), KARKARDOOMA COURTS, DELHI.
AC No.07/2009 Unique Case ID No.02402R0088412009 FIR No.RC DAI 2006 A 0045 U/s 120B read with Section 420/468/471 IPC and under Section 13(2) r/w Sec. 13(1)(d) of PC Act, 1988.
CBI Versus (1) Prabhat Sitaram Kudwa
S/o Late Sh. S.A. Kudwa
R/o A8, Awadh Apartment,
Vipul KhandI, Gomati Nagar,
Lucknow (UP)
(2) Prashant Laxman Mahale
S/o Late Sh. Laxman Mahale
R/o Flat No.B6, Mahalasa Niwas,
II Floor, Devashree Enclave,
Sangolda, Porvorim, Goa.
(3) Meerajuddin
S/o Sh. Bashiruddin
R/o T539, Gali No.14,
Gautamipuri, Delhi.
AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 36 of 41
(4) Kashimuddin
S/o Sh. Bashiruddin
R/o T539, Gali No.14,
Gautamipuri, Delhi.
(5) Jagdeep Singh Gill
S/o Sh. Gurcharan Singh
R/o 616617, Sector6, Vaishali,
Ghaziabad (UP)
ORDER ON SENTENCE
I have heard Ld. Counsels for the convicts as well as learned PP for the CBI on the quantum of sentence. 2 The learned PP for the CBI has submitted that the convicts have been held guilty for commission of criminal conspiracy. Convicts Prabhat Sitaram Kudwa and Prashant Laxman Mahale, being public servants, by misusing their official position caused pecuniary loss to the bank. It is further argued that convicts Meerajuddin, Kashimuddin, Jagdeep Singh Gill and Prashant Laxman Mahale committed forgery in the documents and used the same as genuine with a view to cheat the bank. He has further argued that accused Prabhat Sitaram Kudwa has been held guilty for committed cheating with the bank. He has further submitted that the convicts AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 37 of 41 may be awarded maximum punishment prescribed under the law. 3 The learned counsel for convict Prabhat Sitaram Kudwa has submitted that he is 58 years old and is the only earning member of the family and that entire family is dependent upon him. It is further submitted that there is no other member in his family to look after his wife and children. It is also submitted that he has two daughters of marriageable age. On behalf of convict, Prashant Laxman Mahale, it has been submitted that he is 40 years of age, having two minor children of 5 and 3 years. He has been working with the bank for the last about 16 years. On behalf of convict Meerajuddin, it has been submitted that he is having 5 children out of whom one daughter is of marriageable age. It is further submitted that his entire family is dependent upon him and he is the sole bread earner of the family. On behalf of convict Kashimuddin, it is submitted that he is sole bread earner of the family. His family consists of 3 children and all of them are minor. On behalf of convict Jagdeep Singh Gill, it has been submitted that he is having 3 children of 14, 18 and 19 years of age. He is also having old parents in his family to be looked after. It is further submitted that convicts have attended the court regularly and faced a protracted trial, therefore, a AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 38 of 41 lenient view may be taken while awarding sentence to them. 4 Vide judgment dated 5.10.2012, all convicts have been convicted under Section 120B IPC read with Sections 420/468/471 IPC and 13(2) read with Section 13(1)(d) of P.C. Act. Convicts Prashant Laxman Mahale, Meerajuddin, Kashimuddin and Jagdeep Singh have also been convicted under Sections 420, 468 & 471 IPC. Convict Prabhat Sitaram Kudwa has also been convicted under Section 420 IPC and under Section 13(2) read with Section 13(1)(d) of the P.C. Act. Convict Prashant Laxman Mahale has also been convicted under Section 13(2) read with Section 13(1)(d) of the P.C. Act.
5 Considering the circumstances under which the offences were committed, convicts are sentenced as under :
(i)All the convicts, namely, Prabhat Sitaram Kudwa, Prashant Laxman Mahale, Meerajuddin, Kashimuddin and Jagdeep Singh Gill are awarded sentence of three years rigorous imprisonment with fine of Rs.15,000/ each for the offence punishable under Section 120B IPC read with Sections 420/468/471 IPC and section 13(2) read with 13(1)(d) of P.C. Act. In default of payment of fine, convicts shall further undergo simple imprisonment for six months.
AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 39 of 41
(ii)Convicts Prabhat Sitaram Kudwa, Prashant Laxman Mahale, Meerajuddin, Kashimuddin and Jagdeep Singh Gill are awarded sentence of three years rigorous imprisonment with fine of Rs.15,000/ each for the offence punishable under Section 420 IPC. In default of payment of fine, convicts shall further undergo simple imprisonment for six months.
(iii)Convicts Prashant Laxman Mahale, Meerajuddin, Kashimuddin and Jagdeep Singh Gill are awarded sentence of three years rigorous imprisonment with fine of Rs.15,000/ each for the offence punishable under Section 468 IPC. In default of payment of fine, convicts shall further undergo simple imprisonment for six months.
(iv)Convict Prashant Laxman Mahale, Meerajuddin, Kashimuddin and Jagdeep Singh Gill are awarded sentence of three years rigorous imprisonment with fine of Rs.15,000/ each for the offence punishable under Section 471 IPC. In default of payment of fine, convicts shall further undergo simple imprisonment for six months.
(v)Convicts Prabhat Sitaram Kudwa and Prashant Laxman Mahale are awarded sentence of three years rigorous imprisonment with fine of Rs.15,000/ each for the offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. Act. In default of payment of fine, convicts shall further undergo simple imprisonment for six months.
AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 40 of 41 6 All the sentences of the convicts shall run concurrently. The convicts shall be entitled for the benefit of the provisions of Section 428 Cr.PC. Copies of the judgment and order on sentence be given free of cost to the convicts.
File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 08.10.2012 District Judge & ASJ, I/C (East)
Special Judge (CBI)
Karkardooma Courts : Delhi
AC No.07/2009 CBI Vs. Prabhat Sitaram Kudwa etc. Page 41 of 41