Delhi District Court
Uti Technologies Services Ltd vs Rajesh Kumar Tiwari & Ors on 5 September, 2018
IN THE COURT OF MS. VANDANA JAIN, LD. ADDITIONAL DISTRICT
JUDGE07, SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI
MORE THAN NINE YEARS OLD
CS no. 9705/16
UTI Technologies Services Ltd Vs Rajesh Kumar Tiwari & Ors
In the matter of :
UTI Technology Services Ltd
174175, Rajendra Place DDA Market,
Rajendra Nagar, New Delhi
................plaintiff
Versus
1. Sh. Rajesh Tiwari
S/o Sh. Shyam Narayan Tiwari
House no. 3230, Gali no. 72, Molar Band Extension,
Badarpur, New Delhi
Also at
Village Surangapur, P.O. Kori
Thana Sandesh, District Bhojpur
Arra, Bihar
2. Sh. Raj Kumar
Part of Khasra no. 215,
Village Tejpur Abadi G Block
Molar Band Extension
POBadarpur, New Delhi
3. Sh. Shyam Narayan Tiwari
Village Surangapur, P.O. Kori
Thana Sandesh, DistrictBhojpur
Arra, Bihar
4. Sh. Akhilesh Tiwari
Village Surangapur, P.O. Kori
UTI Technologies Services Ltd Vs Rajesh Kumar Tiwari & Ors 1/17
Thana Sandesh, DistrictBhojpur
Arra, Bihar
5. Smt. Babita Tiwari
Village Surangapur, P.O. Kori
Thana Sandesh, DistrictBhojpur
Arra, Bihar
6. Sh. Vijay Kumar Tiwari
Village Surangapur, P.O. Kori
Thana Sandesh, DistrictBhojpur
Arra, Bihar
7. AOK in House BPO Services Ltd
3, Community Centre, Naraina Industries Area
PhaseI, Near PVR Cinema, New Delhi
Through its Directors
8. Post office,
Sandesh, Thana, PSSandesh,
DistrictBhojpur, Bihar
9. Union Bank of India
Sandesh Branch, DistrictBhojpur, Bihar
10. Sahar India Financial Corporation
India Ltd. Sahara Indian Bhagwan1,
Kapurthala Complex, Lucknow.
11. Axis Bank Ltd
Ashoka Estate, Barakhamba Road
New Delhi110001
12. HDFC Bank Ltd
Village Charmwood, Faridabad
13. State Bank of India
Patel Nagar Branch
UTI Technologies Services Ltd Vs Rajesh Kumar Tiwari & Ors 2/17
New Delhi.
14. ICICI Bank Ltd
East Patel Nagar, Delhi
(defendants no. 8 to 14 are performa parties)
.............Defendants
Date of institution: 27.07.2009
Date of pronouncement of order : 05.09.2018
JUDGMENT
SUIT FOR RECOVERY
1. The brief facts of the present case as averred in the plaint that plaintiff company had been acting as a Registrar and Transfer Agent (RTA) on behalf of Unit Trust of India & other Mutual Funds and its job included transactions, processing, rendering after sales services, revalidation of cheque received from investors, correction in name and account number appearing on the cheques, processing repurchase and maturity application etc.
2. It is averred that the plaintiff was entrusted to verify the documents received from the Investors and to verify the same from the master file of the scheme which were maintained in "Fox Pro" Based Data Base. After verification, a DBF file was prepared for all such requests for which the cheques were to be generated.
UTI Technologies Services Ltd Vs Rajesh Kumar Tiwari & Ors 3/17
3. These dbf file was sent to Central Processing Centre at Navi Mumbai where the cheques were printed and were sent to concerned offices and branches to be ultimately handed over/dispatched to the Investors.
4. Defendant no. 1 was a contractual employee of the plaintiff through defendant no.7 and had joined the plaintiffs company as temporary Assistant in February 2004 and worked till 01.10.02005, when his services were terminated due to his misbehaviour with other employees.
5. Defendant no. 1 had entered into an agreement with the plaintiff that it would supply the manpower to the plaintiff and in terms of the said agreement, it had undertaken to indemnify the plaintiff. On 24.01.2006, one of the Auditor of the company while checking a dbf file noticed that two cheques of Rs. 25000/ and Rs. 15,600/ in two different names were issued for a single unit certificate no. 40095158000038332 under the monthly income scheme Plan94 (III). The name of first person was Rajesh Kumar Tiwari and second was Pawan Kumar Aggarwal of Aroria (Bihar). On further investigation/verification, it was noticed that on 20.07.2005 a request dated 16.07.2005 was received from Pawan Kumar Aggarwal for knowing the procedure for obtaining the maturity payment in respect of the aforesaid certificate which was replied by Rajesh Kumar Tiwari (defendant no. 1) UTI Technologies Services Ltd Vs Rajesh Kumar Tiwari & Ors 4/17 attached to Sales Section, responsible for processing such requests. The case was further verified and statement from UTI bank bearing the amount in dbf file was called and it came to light that the said account is a salary account of defendant no. 1 only and letter dated 23.07.2005 was generated from his account and therefore , he had generated the dbf file. It was suspected that defendant no.1 had maniplulated and tampered the data in the dbf file by inserting his name against certificate after the verification was done by the Section Officer without the knowledge of the later. The dbf file under matured schemes were also investigated and the work station of the defendant was checked and following documents were found (i) Counter foil of two cheques, one cheque in the name of Rajesh Kumar and a copy of demand draft of Rs. 48000/ in the name of Shyam Narayan Tiwari (2) copy of ID issued by Election Commission Broker in the name of Gopal Pandey (3) copy of electricity bill of one Banshi Ram of Naraina (4) Copy of ration card of Jagdish Chandra Gupta etc. The counter foils found were to of one D.C.Nangia and Har Devi under MIGS scheme for Rs. 50,000/ each.
6. It was also noticed that the aforesaid cheques were genereated in the name of Rajesh Kumar with the same account of SBI. It is averred that these dbf files were generated by defendant no. 1. It was also found that cheques to the tune of Rs. 75 lacs were generated in different names. It was revealed that UTI Technologies Services Ltd Vs Rajesh Kumar Tiwari & Ors 5/17 defendant no. 1 had opened the salary account with UTI bank in which cheque worth of Rs. 1.54 lacs were credited and he had opened current account with UTI and it was noticed that defendant no. 1 had done transactions to the tune of Rs. 20 lacs. Defendant no. 1 was found to have opened account with G.K.Part II in which transaction amounting to Rs. 15.5 lacs were done. Plaintiff was found to be running a factory in the name of Ganpati Packers, Okhla Indurstrial Area, PartI. It was found by him that he had misappropriated the amount and had invested it for his business purposes and for purchasing the immovable properties. Defendant no. 1 gave the written statement in presence of one Ganesh Kumar, the security guard in the office and admitted the fraud committed by him. He got issued few cheques amounting to Rs. 3,68,550/, out of which one of the cheque of Rs. 93,500/was dishonoured. He also handed over his property documents pertaining to property at Gblock, Molarband, Badarpurt. It was revealed that 86 certificates pertaining to many investors were manipulated and 121 cheques amounting to rs. 76.21 lacs were generated in the name of Rajesh Kumar Tiwari (defendant no. 1) and Umesh Kumar and Gopal Pandey.
7. It was also unfolded that the plaintiff company's address was given in the account of Gopal Pandey maintained by HDFC Bank, G.K., Part II. UTI Technologies Services Ltd Vs Rajesh Kumar Tiwari & Ors 6/17
8. FIR bearing no. 53/2006 u/s 420/468/471/34 IPC was registered with PSPrasad Nagar, Delhi wherein he admitted that he had established colour dying machines, purchased one generator set and some plots out of this money. He was also having one factory of making cartons at Okhla and a 100 sq yds plot at Molarband. It was also revealed that he had deposited some of the amounts in the account of his brother Akhilesh Tiwari (defendant no. 4) and his father Shyam Narayan Tiwari (defendant no. 3). Defendant no 1 had also transferred the large sum to post office Sandesh in the name of defendant n/o. 4 Akhilesh Tiwari which was having a balance of Rs. 3 lacs and to Union Bank of India, Sandesh Branch in the name of Shyam Narayan Tiwari (defendant no.
3) having a balance of 18,919/ and they admitted that the money is of defendant no. 1. Defendant no. 1 admitted of having a FD of Rs. 2 lacs of Sahara India Financial Corpn Ltd at Patna and 20 certificates of FD's of Sahara India Pariwar in the name of Vijay Kumar Tiwari (defendant no. 6), Akhilesh Tiwari (defendant no. 4) and B. K.Tiwari.
9. It was also found that defendant no. 1 had taken a PAN in the name of Umesh Kumar and pasted his own photograph on the application form. Similarly, he opened the account in the name of Gopal Pandey at HDFC Bank, Chamwood village, Faridabad and G.k.II, Delhi having his photos in the account opening form. He also got cheque deposited in these accounts and UTI Technologies Services Ltd Vs Rajesh Kumar Tiwari & Ors 7/17 withdrawal the entire amount from there. He also opened account in the name of Ganpati Packers at HDFC Chamwood Village and got Rs. 3,13,332/. He also opened the account with HDFC Bank , Patel Nagar and pasted his own photograph and got Rs. 31,02,369/. He opened several other accounts with UTI bank , G.k.II, SBI East Patel Nagar , ICICI bank Patel Nagar, got the cheque from UTI, TA Cell in his name and withdrawn the amount from the account of Gopal Pandey and Umesh Kumar. A systematic fraud was played upon the plaintiff company and it was put to loss to the tune of Rs. 76.21 lacs. Hence, this suit.
10. Written statement was filed by the defendant No. 1 who admitted being one of the contractual employee of the plaintiff through defendant No. 7 joining the plaintiff company in February, 2004. He admitted that he worked upto 01.10.2005, however, he denied having been terminated due to his misbehaviour with the employees and the investors.
11. He admitted that Pawan Kumar Aggarwal made a request on 16.07.2005 for obtaining the maturity payment and the same was received by him. He also admitted that a reply to the said letter was sent by him on 23.07.2005, however he denied making of any excess payment of Rs. 25,000/ in different name. UTI Technologies Services Ltd Vs Rajesh Kumar Tiwari & Ors 8/17
12. He also admitted having a saving bank account No. 12801010008138 with UTI Bank, Lajpat Nagar and a current account No. 268010100006392 with UTI Bank, G. K. PartII, New Delhi. It is stated that he was doing business in partnership with Arun Kumar Tiwari, his cousin and they both started business together in the year 2002 at Meetha Pur related to colour dying machine. It is stated that since Arun Kumar Tiwari was living in Delhi since 1997, the profits of the business used to go in his account and the defendant No. 1 opened bank accounts in the year 2004 and 2005 only. Rest of the averments have been denied. It is also stated that after he was terminated, he started running a factory in the name of Ganpati Packers at Okhla.
13. It is denied that the property at Molarband Extn. was purchased out of the fraud amount. He denied having transferred a large sum to Post Office Sandesh in the name of defendant No. 4 which was having a balance of Rs. 3 lacs and to Union Bank of India, Sandesh Branch in the name of defendant No. 3 having a balance of Rs. 18,998/. All the allegations made in the plaint against him were specifically denied.
14. All other defendants No. 2 to 6 denied the averments made in the plaint.
15. Defendant No. 7 also denied the averments and stated that it is not UTI Technologies Services Ltd Vs Rajesh Kumar Tiwari & Ors 9/17 connected with the plaintiff in any manner whatsoever and no averment has been made in the entire plaint against it. The only factum of agreeing to supply the workmen to UTI Investor Services Limited in terms of agreement dated 01.12.2003 between defendant No. 7 and UTI Investor Services Ltd. is admitted.
16. Replication to the written statement of defendants No. 1 to 7 was never filed.
17. Following issues were framed on 23.11.2011:
1. Whether the suit is barred by time? OPD
2. Whether the suit is without any cause of action qua defendant No. 7?
OPD7
3. Whether the plaintiff is entitled to recover the suit amount? OPP
4. Whether the plaintiff is entitled to interest, if so, at what rate and for which period? OPP
5. Relief
18. Matter was listed for plaintiff's evidence. Plaintiff examined Sh. Pradeep Shenoy, Deputy Vice President, UTI, ITSL as PW1. He was not cross UTI Technologies Services Ltd Vs Rajesh Kumar Tiwari & Ors 10/17 examined by defendants No. 1 to 6. He was only crossexamined by counsel for defendant No. 7.
19. Thereafter, PE was closed. Defendant No. 1 to 7 did not lead any evidence. Written submissions were filed by the plaintiff and it was requested to consider them as their oral arguments. None has appeared on behalf of the defendants to address final arguments despite opportunity being granted.
20. I have perused the written submissions given by the Ld. counsel for the plaintiff and have perused the record carefully.
21. The written submissions are the verbatim copy of the plaint and therefore are not repeated herein again for the sake of brevity. I shall take up issues one by one:
Issue No. 1: Whether the suit is barred by time? OPD
22. The onus to prove this issue was put on the defendant, however, this should have been on the plaintiff. As per the averments made in the plaint, the plaintiff company came to know about the alleged fraud on 24.01.2006 when one of the auditors of the company while checking a dbf file noticed that in respect of a transaction pertaining to one unit certificate, two cheques in the UTI Technologies Services Ltd Vs Rajesh Kumar Tiwari & Ors 11/17 name of two different persons were issued amounting to Rs. 25,000/ and Rs. 15,600/ whereas the maturity amount was only Rs. 15,600/ as per the master data. The investigations were done within the plaintiff company and outside that and it was revealed that defendant No.1 had allegedly committed a fraud/embezzled funds to the tune of Rs. 76.21 lacs and an FIR No. 43/2006, PS Prasad Nagar dated 09.02.2006 was got registered in respect of said fraud. The plaintiff company became aware of the fraud on 24.01.2006 but at the most, the period of limitation should have started from the date of registration of FIR, i.e. 09.02.2006. The period of limitation ran up till 08.02.2009 i.e. 3 years from the date it started. However, the present suit has been filed on 21.07.2009 which is beyond the period of limitation of three years. Therefore, the present suit is not within the period of limitation. This issue is decided in favour of the defendants and against the plaintiff.
Issue No. 2: Whether the suit is without any cause of action qua defendant No. 7? OPD7
23. The onus to prove this issue was upon the defendant No. 7. PW1 Pradeep Shenoy was extensively crossexamined by the counsel for defendant No. 7 in which PW1 stated that defendant No. 7 has been made a party only on the basis of a criminal complaint which is Ex. PW1/1 on which the FIR UTI Technologies Services Ltd Vs Rajesh Kumar Tiwari & Ors 12/17 No. 43/2006, PS Prasad Nagar has been registered. It is relevant to note here that the contents of the complaint and the present plaint are identical. No specific allegation with respect to involvement of defendant No. 7 in the said alleged fraud has been made in the entire plaint. Even during the evidence of the plaintiff, the role of defendant No. 7 in the alleged fraud has not been defined.
24. Cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. Mayar (H. K.) Ltd. vs. Owners & Parties, Vesel M. V. Fortune Express, AIR 2006 SC 1828.
25. The entire plaint does not disclose any cause of action against the defendant No. 7. Hence this issue is decided in favour of the defendant No. 7 and against the plaintiff.
Issue No. 3: Whether the plaintiff is entitled to recover the suit amount? OPP UTI Technologies Services Ltd Vs Rajesh Kumar Tiwari & Ors 13/17
26. The onus to prove this issues was upon the plaintiff. Though the plaintiff's witness has not been crossexamined by the defendant No. 1 to 6. However, the plaintiff was bound to discharge its initial burden to prove its case in order to get a relief in its favour as per Section 101 of The Indian Evidence Act, 1872.
27. The plaintiff has based its case on the basis of certain documents which have been exhibited in the examination in chief of PW1 Deepak Shenoy. Ex. PW1/1 is the criminal complaint dated 08.02.2006 given to SHO PS Prasad Nagar. Ex. PW1/2 is the FIR No. 43/2006 PS Prasad Nagar registered on the basis of complaint Ex. PW1/1. Ex. PW1/3 is the certified copy of charge sheet in the aforesaid FIR. Ex. PW1/4 are the certified list of cheques allegedly encashed by the defendant. Ex. PW1/5 is the statement of accounts of the defendant No. 1 for the period 09.09.2005 till 31.01.2006 for account No. 268010001410 and another account No. 268010100006392 and also 128010100081388 alongwith account opening forms. Ex.PW1/6 is the certified copy of property documents of property No. 3230 admeasuring 50 sq. yards Plot No. 14, Gali No. 17, Block E2, Molarband Extn., Badarpur, New Delhi allegedly purchased by the defendant No. 1 out of the fraud amount. Ex. PW1/7 are the certified copies of the statements recorded by the UTI Technologies Services Ltd Vs Rajesh Kumar Tiwari & Ors 14/17 Investigating Officer in the aforesaid FIR alongwith seizure memo and disclosure statements. Ex. PW1/8 is a certified copy of statement from the bank given to IO in the aforesaid FIR. Ex. PW1/9 are the copies of mails sent by defendant No. 1. Ex. PW1/10 is the copy of seizure memo of property documents of the defendant No. 1. Ex. PW1/11 is the certified statements of seizure memo of receipt of cheque by defendant No. 1. Ex. PW1/12 is authorization in favour of PW1 Pradeep Shenoy.
28. Before discussing anything, it is relevant to mention here that in order to prove the present case, the plaintiff has relied upon the documents annexed alongwith charge sheet of FIR No. 43/2006 PS Prasad Nagar by its Investigating Officer. The charge sheet is only a statement of conclusion arrived at by the Investigating Officer, investigating a particular case supported by documents and the witnesses. All these witnesses mentioned in the charge sheet have to come to the court to prove their statements. All the documents placed on record alongwith the chargesheet have to be proved in accordance with law. Each document and the statement of the witness has to be connected with the crime in order to prove the guilt of the accused/suspect.
29. On the contrary to the utter dismay, the plaintiff had only relied upon the chargesheet and the documents collected by the Investigating Officer to prove UTI Technologies Services Ltd Vs Rajesh Kumar Tiwari & Ors 15/17 the present case of recovery. Though, the list of cheques allegedly encashed by the defendant No. 1 has been given, however it is not proved that these cheques belonged to the plaintiff company and were to be disbursed to a particular investor against a specific unit certificate. The role of other defendants is not specifically proved. Merely admitting the case of the plaintiff on the basis of the documents filed on record without proving the same in accordance with law either here in this case or without undergoing trial in that case, would amount to accepting the theory of the Investigating Officer given by him in the chargesheet. None of these documents have been proved. No one has come forward to connect any of the cheques with any transaction. It is not clarified as to how the fraud occurred in respect of each transaction. The filing of bundles of documents together would itself not prove the case of the plaintiff. The auditor who had noticed the fraud for the first time has not been examined in this case. No evidence has been led on the unit certificate No. 100 95158000038332 under Monthly Income Plan 94 (III) in which two cheques were allegedly issued in two different names. Even the cheque numbers have not been given. It is not proved by any expert as to how the data of dbf file was tampered. The gaurd in which presence plaintiff admitted his guilt has not come in the witness box. The plaintiff had to prove its case on the scales of preponderance of probabilities, however, it has miserably failed to do so. This issue is decided against the plaintiff.
UTI Technologies Services Ltd Vs Rajesh Kumar Tiwari & Ors 16/17 Issue No. 4:Whether the plaintiff is entitled to interest, if so, at what rate and for which period? OPP
30. In view of findings given in Issue No. 3, this issue is decided against the plaintiff.
31. Relief:
32. Suit of the plaintiff is dismissed.
33. Decreesheet be prepared. No Order as to costs.
34. File be consigned to Record Room.
Digitally
signed by
VANDANA
VANDANA JAIN
JAIN Date:
Announced in the open court 2018.09.05
15:41:40
on 05.09.2018 +0500
(VANDANA JAIN)
ADDITIONAL DISTRICT JUDGE07/
SOUTH EAST DISTRICT/SAKET COURTS/
NEW DELHI/05.09.2018
UTI Technologies Services Ltd Vs Rajesh Kumar Tiwari & Ors 17/17