Delhi District Court
Cbi vs Mukesh Jain Etc(10) on 25 November, 2023
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IN THE COURT OF MOHD. FARRUKH, SPECIAL JUDGE
(PC ACT), CBI-11, ROUSE AVENUE COURT COMPLEX,
NEW DELHI
CC No. 131/2019
RC 0712009(E)0003
under Section : 120-B, 420, 467 & 468 IPC and Section 13(2) read
with 13 (1)(d) of PC Act, 1988.
CNR No.: DLCT11-000578-2019
CENTRAL BUREAU OF INVESTIGATION
VERSUS
1. MUKESH JAIN
S/o Sh. Parveen Chand Jain
Director, M/s Bahubali Marketing Pvt. Ltd.
R/o E-314, Ist Floor, GK-II, New Delhi
2. NIPUN BANSAL
S/o Late Sh. Prem Prakash Bansal
Proprietor of M/s Bansal Trading Co.
R/o 1584, Nai Basti, Novelty
Delhi-110006
3. MOHAMMAD NAUMAN (since deceased)
S/o Mohd. Suleman
852, 3rd Floor, Chandni Mahal
Darya Ganj, Delhi
4. AMIT AGGARWAL
S/o Late Sh. Ravish Chandra Agarwal
R/o 18/236, Indira Nagar, Lucknow, UP
CC No. 131/2019
CBI Vs. Mukesh Kumar Jain & Others. Page No. 1 of 263
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5. GANESH LAL
S/o Late Kapileshwar Lal
R/o 17/298, Indira Nagar, Lucknow, UP
6. CHANDRA BHAN SINGH
S/o Lalta Prashad Singh
R/o 29/51, Raja Oeal House, 1, Rana Pratap Marg
Lucknow, UP
7. S.K. BHARGAVA
R/o 2nd Floor, Geeta Mandir Marg, New Rajinder Nagar
New Delhi
8. SMT. BEENU JAIN
W/o Mukesh Jain
Director, M/s Bahubali Marketing Pvt. Ltd.
R/o E-314, Ist Floor, GK-II, New Delhi - 110048
9. JAMIR AHMAD
S/o Late Abdul Razak
R/o Vijay Nagar, Gali No. 1, Govindpuri
Modi Nagar, District - Ghaziabad, UP
10. RAJE @ RAJEEV (since deceased)
S/o Sher Singh
R/o Bishokar, Tehsil Modi Nagar
District Ghaziabad, UP
Date of FIR : 06.04.2009
Date of filing of charge-sheet : 01.07.2009
Arguments concluded on : 13.10.2023 &
08.11.2023
Date of Judgment : 25.11.2023
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Appearances:
For Prosecution : Sh. Avanish Kumar Chand, Ld. PP for the CBI.
For accused persons : Sh. Deepak Bhadana, Counsel for A-1 Mukesh Jain
and A-8 Smt. A-8 Benu Jain.
Sh. R.P. Shukla, Counsel for A-2 Nipun Bansal.
Sh. Yudhishtar Kahol and Sh. Kunal Kahol, Counsel for
A-4 Amit Aggarwal.
Sh. Abhey N. Das, Counsel for A-5 Ganesh Lal.
Md. Qamar Ali, Ld. Counsel for A-6 Chandra Bhan and
A-7 S.K. Bhargava.
Sh. Ashok Gahalot and Sh. Kapil Gahalot, Counsel for
A-9 A-9 Jamir Ahmad.
JUDGMENT
25.11.2023
1. Accused A-1 Mukesh Jain, A-2 Nipun Bansal, A-3 Mohd. Nauman, A-4 Amit Aggarwal, A-5 Ganesh Lal, A-6 Chandra Bhan, A-7 S.K. Bhargava, A-8 A-8 Benu Jain (A-8), A-9 A-9 Jamir Ahmad and A-10 Raje @ Rajeev were sent up by Central Bureau of Investigation (hereinafter referred to as 'CBI') to face trial for commission of offences punishable under Sections 120B/420/467/468/471/511 of Indian Penal Code (hereinafter referred to as 'IPC') and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 (hereinafter referred to as 'PC Act') and substantive offences thereof.
2. During the course of trial, Mohd. Nauman (A-3) and Rajeev @ Raje (A-10) had expired and proceedings against them were CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 3 of 263 :: 4 ::
abated vide orders dated 08.02.2021 and 21.08.2020 respectively.
FACTUAL MATRIX OF THE PROSECUTION CASE IN BRIEF
3. Sh. Ram Niwas Malik, Chief Manager, Punjab National Bank (hereinafter referred to as 'PNB'), Branch Office, 2nd Floor, ECE House, K.G. Marg, New Delhi-110001, submitted a complaint dated 06.04.2009 with the Superintendent of Police, CBI, alleging that Rs.1,46,71,000/- (One Crore Forty Six Lakhs Seventy One Thousand Only) have been withdrawn from Bank Accounts maintained with PNB, Lal Bagh Branch, Lucknow, UP of its two account holders namely, Sahara India Financial Corporation Ltd. (hereinafter referred to as 'SIFCL') and M/s Bajpai Construction Company (hereinafter referred to as 'M/s BCC') by presenting fraudulent cheques through Cheque Truncation System (hereinafter referred to as 'CTS'). It was further alleged that attempts for withdrawing Rs.2,72,38,000/- (Two Crores Seventy Two Lakhs Thirty Eight Thousand Only) from the Bank Accounts of M/s SIFCL, M/s BCC and Uttar Pradesh Road Transport Corporation Ltd. (hereinafter referred to as 'UPSRTC') adopting the same modus operandi were made. On the basis of the aforesaid complaint, an FIR bearing RC-07 12009(E)0003/2009, dated 06.04.2009, under Section 120B/420/467/468 IPC and Section 13(2) read with 13 (1)
(d) of PC Act, 1988 was registered by the CBI against unknown CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 4 of 263 :: 5 ::
persons.
4. During the course of investigation, it was revealed that a conspiracy was hatched initially between A-4 Amit Aggarwal, A-3 Mohd. Numan of Daryaganj, Delhi and A-9 A-9 Jamir Ahmad at different Hotels, namely, Nancy Hotel, Pallai Palace and Hotel Klick International where they agreed amongst themselves that A-4 Amit Aggarwal would secure blank cheques from Banks and, thereafter, those cheques would be forged showing to have been issued from the different Bank Accounts having substantial credit balance. A-3 Mohd. Numan and A-9 A-9 Jamir Ahmad were to arrange Bank Accounts in Delhi for credit of such fraudulent cheques and thereafter share the money so credited between them. In pursuance to the said conspiracy, A-4 Amit Aggarwal contacted one A-6 Chandra Bhan Singh, who was working as Clerk-cum-Cashier in PNB, Lal Bagh Branch, Lucknow and obtained blank cheques of Cheque Book containing Nos. TSP 793201 to 793300 from him. A-6 Chandra Bhan Singh also made available photocopies of specimen signatures of authorised persons of SIFCL, M/s BCC and other account holders from the Bank record so that their matching signatures be practiced and appended on cheques. Thereafter, the aforesaid Cheque Book was passed on to A-5 Ganesh Lal so that he could forge and fabricate the cheques to be deposited. Accordingly, he changed the cheque number on a leaf of the said Cheque Book by CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 5 of 263 :: 6 ::
erasing the original six digit numbers of the cheque suitably and incorporating in its place the required number 'TSP 786698' so that the cheque would appear to have been issued from the Bank Account of M/s BCC maintained with PNB, Lal Bagh Branch, Lucknow. A-4 Amit Agarwal and A-3 Mohd Nauman got fabricated stamps of M/s BCC and M/s SIFCL from a shop owner by Sh. Pritpal Singh in cycle market, Jhandewalan, Delhi.
5. In furtherance of the said conspiracy, A-3 Mohd. Nauman conspired with A-2 Nipun Bansal who provided the details of the Bank account of M/s Abdul Habib & Sons (hereinafter referred to as 'M/s AH&S') with PNB, Rani Bagh Branch, Delhi. The said Bank Account showing Mohd. Yusuf as Proprietor of M/s AH&S was opened by Ashok Kumar Gupta, employer of the said Mohd Yusuf for rotation of funds for Income Tax purpose on commission basis at the instance of Sh. Ravi Kumar Singh who worked with HDFC Bank. The said Ravi Kumar Singh was a friend of A-2 Nipun Bansal and the said Ravi Kumar Singh got the said Account opened at the instance of A-3 Mohd. Nauman and A-2 Nipun Bansal.
6. During further investigation, it is revealed that in pursuance to the said conspiracy, cheque No. TSP 786698 dated 16.01.2009 for Rs.65 lakhs purportedly issued from the said account of M/s BCC favouring M/s AHS, was forged for Rs.65 lakhs and was, thereafter, CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 6 of 263 :: 7 ::
presented for clearance on 16.01.2009, by A-2 Nipun Bansal being Proprietor of M/s Bansal Trading Company (hereinafter referred to as 'M/s BTC') in PNB, Rani Bagh Branch, Delhi. Mohd. Yusuf (account holder), Sh. Ravi Kumar Singh, Sh. Ashok Kumar Gupta accompanied A-2 Nipun Bansal, A-3 Mohd. Nauman and A-4 Amit Aggarwal to Bank's Branch in Rani Bagh where A-2 Nipun Bansal filled up the pay-in slip and submitted the forged cheque for payment in clearing in the account of M/s AHS. However, the Bank returned the same with the remarks that the signature did not tally and thus, the attempt of the conspirators/accused persons failed at this juncture. Another attempt was made on 19.01.2009 to encash the said cheque for Rs.65 lakhs through PNB, Gujrawala Town. A-4 Amit Aggarwal, accused Mohd. Numan and A-2 Nipun Bansal had gone to the said Bank where A-2 Nipun Bansal presented the cheque for clearance and the said cheque was passed for payment by the Manager but within a minute, transaction was reversed and cheque was returned to A-2 Nipun Bansal as signatures did not tally and, hence, the said attempt also failed.
7. Investigation further revealed that in furtherance of the conspiracy A-4 Amit Aggarwal with A-3 Mohd. Nauman, arranged preparation of another cheque through A-5 Ganesh Lal. The said cheque No. TSP 786680 dated 23.02.2009 for Rs.40 lakhs CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 7 of 263 :: 8 ::
purportedly issued from the account of M/s. BCC was forged showing to have been issued favouring M/s. BTC using forged stamp of M/s BCC. The said cheque along with deposit slips in the handwriting of A-6 Chandra Bhan Singh was dropped at HDFC Bank, Hazratganj, Lucknow and the same was presented by HDFC Bank, Lucknow to PNB, Services Branch, Lucknow under high value clearing. The said cheque was cleared on 26.02.2009 and Bank Account of M/s BTC maintained with HDFC Bank, Kashmere Gate Branch, Delhi was credited with Rs.40 lakhs. Investigation further revealed that A-2 Nipun Bansal being the Proprietor of M/s BTC, transferred Rs.40 lakhs so credited from the Bank Account of M/s. BTC to different Bank accounts by means of cheques, the details of which are as follows :
Sl. No. Amount Cheque Date Cheque Issued Favouring
1. Rs. 5,00,000/- 27.02.2009 Mohandas Shankar Lal
2. Rs. 4,57,592/- 27.02.2009 ICICI Bank Ltd.
3. Rs. 29,30,000/- 03.03.2009 Shree Radha Enterprises
8. It was further revealed in the investigation that out of the amount of Rs.29.30 lakhs transferred on 03.03.2009 to M/s Shree Radha Enterprises, the amounts were rotated through the accounts of M/s Rahul Kumar Rohit Kumar and M/s Pankaj Kumar Suresh Kumar with HDFC, Kashmere Gate and same was transferred on 03.03.2009 to the Bank account of M/s BTC maintained with CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 8 of 263 :: 9 ::
Oriental Bank of Commerce, Naya Bazar (OBC) Delhi.
9. As per the investigation, since A-2 Nipun Bansal did not share the proceeds of the crime with other co-conspirators/co-
accused persons, A-3 Mohd. Nauman prevailed upon A-2 Nipun Bansal for providing other accounts for encashment of similarly forged cheques. A-2 Nipun Bansal through his contacts provided the Bank account of M/s Bahubali Marketing Pvt. Ltd. (hereinafter referred to as 'M/s BMPL'). A-3 Mohd. Nauman contacted one Deepak Sharma, proprietor of M/s Shree Ganesh Couriers (hereinafter referred to as 'SGC') who was maintaining a Bank account with PNB, Daryaganj Branch, Delhi. The said Bank Account was dormant and without sufficient balance and, therefore, A-3 Mohd. Nauman had given Rs.6,000/- to Deepak Sharma for reviving the said Bank Account to obtain a Cheque Book. Accordingly, the said Bank Account was revived and blank Multicity Cheque Book of Bank Account containing cheques No. TTT 512751 to 512800 was obtained by Deepak Sharma, and he handed over the said Cheque Book to A-3 Mohd. Nauman, on his request. The said Cheque Book issued from PNB, Daryaganj was a Multicity Cheque Book bearing only the Bank Code without Branch name or its code. In pursuance to the aforesaid criminal conspiracy, name of Lal Bagh Branch and its Branch code, were got printed on the cheque leaves by the accused persons.
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10. Investigation further revealed that in furtherance of the conspiracy two cheques No. TTT 793699 dated 02.03.2009 for Rs.4.50 lakhs and cheque No. TTT 793697 dated 04.03.2009 for Rs.3.65 lakhs were forged and purportedly issued from the Bank account of M/s BCC maintained with PNB, Lal Bagh Branch, Lucknow favouring Shahid, whose Bank Account was opened by A- 10 Raje @ Rajeev in the name of Shahid in PNB Morta Branch, Ghaziabad, UP at the instance of A-9 Jamir Ahmad. Subsequently, the said two cheques were presented for clearance at PNB, Rithani Branch, Meerut, however, the cheques were not cleared as the Manager of the Rithani Branch doubted the genuineness of the cheques and got the same verified from Lal Bagh Branch which confirmed that such cheques were never issued by it. During investigation, it was further revealed that fraud was averted as the aforesaid series of the cheques were found not entered in the computer system of the Bank. In this case also, there was an attempt to get the cheques encashed.
11. Enquiries made from Sh. Satyendra Nath Bajpai, Proprietor of M/s BCC, Lucknow revealed that his firm had no dealings with M/s BTC, M/s AH&S and Shahid. He denied his signatures on the four cheques purportedly issued from the Bank account of the M/s BCC in favour of the said persons. He produced the original unused cheque No. TSP 786680 which was issued by PNB, Lal Bagh CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 10 of 263 :: 11 ::
Branch in the account of M/s BCC.
12. Investigation further revealed that in furtherance of conspiracy, one cheque bearing No. TTT 512776 dated 17.03.2009 for Rs.1,58,70,000/- was forged from Cheque Book obtained by A-3 Mohd. Nauman from Deepak Sharma, showing to have been purportedly issued from the Bank Account of M/s UPSRTC in favour of M/s Lee Pakashi Overseas (hereinafter referred to as 'M/s LPO). The said cheque was dropped at Bank of Baroda (hereinafter referred to as 'BoB'), Sansad Marg, New Delhi for crediting the amount mentioned in the cheque, in the Bank account of M/s LOP which was being maintained in BoB, Dilshad Garden Branch. It was further revealed in the investigation that the cheque was presented by back office of BoB to PNB through RBI in CTS clearance and account of M/s LOP was credited on 21.03.2009. Since the RBI sent rejection statement in this regard, the credit entry was reversed on 23.03.2009 itself and the attempt to get the said cheque encashed, failed.
13. The Paharganj Back office telephonically gathered information from Lal Bagh Branch that the said cheque in question had not been issued by UPSRTC. Investigation with Sh. Sudhir Chandra Joshi, General Manager and Sh Jaya Prakash Singh, Assistant Manager (Finance) UPSRTC, Lucknow revealed that they CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 11 of 263 :: 12 ::
were the authorized signatories of the Corporation and M/s UPSRTC had neither any business dealing with M/s LPO nor had they issued the cheque in question and the signatures thereon were forged.
14. Investigation further revealed that in furtherance of the conspiracy one more cheque No. TTT 512796 dated 18.03.2009 obtained by A-3 Mohd. Nauman from Deepak Sharma from the Cheque Book, purportedly issued from the account of M/S SIFCL with PNB, Lal Bagh Branch, Lucknow favouring M/s EMMAR Creation (hereinafter referred to as 'M/s EC') was forged for Rs.40.53 lakhs and presented by J&K Bank Ltd., Vasant Vihar to PNB through RBI in CTS clearing for payment but the same was not cleared as signatures did not tally and, thus, this attempt also resulted in failure.
15. During investigation, it is further revealed that two cheques out of the abovesaid series of cheques were utilized for preparation of the forged cheques No. TTT 512780 dated 18.03.2009 for Rs.51.65 lakhs and TTT 512799 dated 19.03.2009 for Rs.55.06 lakhs. The signatures of Sh. Jayendra Singh and Sh S. Banerjee authorised signatories of M/s SIFCL were forged on the these two cheques. The two cheques were purportedly issued from the Bank account of M/S SIFCL maintained with PNB, Lal Bagh Branch, CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 12 of 263 :: 13 ::
Lucknow in favour of M/s BMPL. The cheque No. TTT 512799 for Rs.55.06 lakhs dated 19.03.2009 was dropped in the drop box for clearing in Bank of Baroda (hereinafter referred to as 'BoB'), Daryaganj Branch on 20.03.2009 and it was sent for clearing through BoB office at Asaf Ali Road. The other cheque No. TTT 512780 for Rs.51.65 lakhs dated 18.03.2009, was dropped in drop box for clearing in BoB, Connaught Place on 20.03.2009 and it was sent for clearing through BoB, Back office in Parliament Street. Investigation further revealed that both the cheques were presented by RBI for clearing through 'CTS' and were cleared by PNB and a total amount of Rs.1,06,71,000/- was credited in the Bank account of M/s BMPL with BoB, Hauz Khaus Branch, New Delhi. The Bank account of M/s BMPL was being operated by A-1 Mukesh Jain and his wife Smt. A-8 Benu Jain as Directors of the said Company. A-1 Mukesh Jain in furtherance of the conspiracy had agreed for withdrawal of the aforesaid amount as mediated by A-7 S.K. Bhargava. Investigation further revealed that out of Rs.1,06,71,000/- so fraudulently credited, Rs.38 lakhs was withdrawn in cash by A-1 Mukesh Jain and Smt. A-8 Benu Jain on four different occasions i.e. Rs.9 lakhs twice on 23.03.2009; Rs.15 lakhs on 30.03.2009 and Rs.5 lakhs on 31.03.2009. An amount of Rs.25.25 lakhs was transferred to the account of M/s Analytical Impex Pvt. Ltd. (hereinafter referred to as 'M/s AIPL') on 27.03.2009 through Real Time Gross CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 13 of 263 :: 14 ::
Settlement (hereinafter referred to as 'RTGS'). On 30.03.2009, an amount of Rs.25.30 lakhs and Rs.10.06 lakhs was transferred from the Bank account of M/s BMPL through RTGS of BoB, Parliament Street to the Bank account of M/s AIPL and an amount of Rs.7.88 lakhs lying in the account of M/s BMPL was freezed during investigation.
16. Investigation further revealed that Sh. Pramod Kumar Pandey was the authorized signatory of the Bank account of M/s AIPL with HDFC Bank Ltd., GK-I and HSBC Bank, GK-I and he was convinced by A-1 Mukesh Jain that the funds were required to be rotated through the Bank account of his firm for Income Tax purpose for which he would be paid commission and at the same time it would boost turn-over of his company for securing higher credit limits from the Banks. Out of the amount of Rs.60.61 lakhs transferred to the Account of M/s AIPL, amount of Rs.25.25 lakhs, Rs.25.30 lakhs and Rs.10.06 lakhs were transferred to the firm's Account with HDFC Bank, GK-I Investigation further revealed that an amount of Rs.25 lakhs each had been withdrawn from the Accounts of M/s AIPL with HDFC Bank and HSBC Bank on 30.03.2009 respectively, in cash by Sh. Pramod Kumar Pandey and handed over to A-1 Mukesh Jain with whom A-7 S.K. Bhargava was available and A-7 S.K. Bhargava had taken Rs.50 lakhs with him. Investigation further revealed that an amount of Rs.10 lakhs from CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 14 of 263 :: 15 ::
the amount of Rs.10.06 lakhs was transferred through RTGS to the Account of M/s Saint Grandeur having Account with HSBC Bank, Barakhamba Road Branch at the instance of A-1 Mukesh Jain and the said amount of Rs.10 lakhs was still lying in the Account of M/s Saint Grandeur of which Sh. Adhiraj Kumar, a relative of A-1 Mukesh Jain is the Proprietor. The amount of Rs.10 lakhs in the said account was freezed during investigation.
17. Investigation further revealed that M/s SIFCL had no business dealing with M/s BMPL or M/s EC and its authorized signatories, namely, Sh. Jayendra Singh and Sh. S. Banerjee had denied of having signed the cheques in question and stated that their signatures have been forged.
18. During the course of investigation, incriminating documents like missing Cheque Book from PNB, Lal Bagh Branch, photocopy of cheques containing signatures of authorised signatories as specimens for copying signatures, cheques with altered numbers, cheques with practiced signatures of Proprietor of M/s BCC, seals of M/s BCC, M/S SIFCL etc. were seized from the residence-cum-
office of A-5 Ganesh Lal showing the complicity of A-5 Ganesh Lal, A-4 Amit Agarwal and A-6 Chandra Bhan Singh in the whole conspiracy.
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19. Incriminating documents like copies of the self cheques of M/s AIPL, details of account of M/s BMPL etc. were also seized from the office of A-2 Nipun Bansal showing his complicity in providing details of the account to A-3 Mohd. Nauman.
20. In the charge-sheet, it has been concluded by the CBI that during October 2008 to March, 2009, the aforesaid accused persons, namely, (A-1) Mukesh Jain, (A-2) Nipun Bansal, (A-3) Mohd.
Nauman, (A-4) Amit Agarwal, (A-5) Ganesh Lal, (A-6) Chandra Bhan Singh {public servant}, (A-7) S.K. Bhargava, (A-8) Smt. A-8 Benu Jain, (A-9) A-9 Jamir Ahmad and (A-10) Raje @ Rajeev conspired among themselves for forging and fabricating eight cheques causing wrongful loss to PNB and its account-holders, out of which, three cheques were encashed/ cleared and amount of Rs.1,46,71,000/- was credited to different accounts and they also attempted to encash/ clear other five forged and fabricated cheques to the tune of Rs.2,72,38,000/-.
21. On these premise, the aforesaid accused persons were sent up by CBI to face trial for commission of offences punishable under Sections 120B/420/467/468/471/511 IPC and Section 13(2) read with Section 13(1)(d) of PC Act and substantive offences thereof.
22. Upon perusal of the charge-sheet and after taking cognizance CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 16 of 263 :: 17 ::
of the offences mentioned therein, all the accused were summoned vide Order dated 04.07.2009. Thereafter, upon their appearance, copies of the charge-sheet were supplied to them in compliance of Section 207 Cr.P.C.
CHARGE
23. A detailed Order dated 14.07.2010 on charge was passed by Ld. Predecessor of this Court observing that prima facie case is made out against the accused persons and charge for offence under Section 120B read with Section 420/467/468/471 IPC read with Section 13(2) read with Section 13(1)(d) of PC Act, 1988 was framed against all accused persons; substantive charge for offence punishable under Sections 468/471 and 471/511 IPC was framed against A-4 Amit Aggarwal; substantive charge for offence punishable under Section 420/471 and 420/471/511 IPC was framed against A-2 Nipun Bansal; substantive charge for offence punishable under Sections 420/471 IPC was framed against A-1 Mukesh Jain and A-8 A-8 Benu Jain; substantive charge for offence punishable under Sections 420/471/511 IPC was framed against A-3 Mohd. Nauman and A-9 Jamir Ahmad and substantive charge for offence punishable under Section 13(2) read with Section 13(1)(d) of PC Act was against A-6 Chandra Bhan Singh. No substantive charge was framed against A-5 Ganesh Lal. Accused persons pleaded not guilty and claimed trial.
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PROSECUTION EVIDENCE
24. To connect the arraigned accused persons with the offences charged, the CBI in total has examined 61 (sixty one) witnesses.
25. PW-1 Ram Niwas Malik, Chief Manager, PNB deposed that in April 2009, he was working as Chief Manager in Back Office/ Service Branch, ECE House, Connaught Place, New Delhi. He elaborated the procedure with regard to the receiving and clearance of the cheques through CTS. He further testified that the cheque TTT 512799 dated 19.03.2009 for an amount of Rs.55.06 lakhs and cheque bearing No. TTT 512780 dated 18.03.2009 for an amount of Rs.51.65 lakhs were debited in the Bank account of M/s BMPL. Subsequently, a telephonic call was received from Lal Bagh Branch of PNB intimating that the aforesaid two cheques were not issued by M/s BCC. He further deposed that the superior authorities of PNB appointed Chief Internal Auditor of the Bank as Inspector who found that the aforesaid cheques were not issued by the party shown to have issued the same. PW-1 received report of the said Inspector and on the basis of the said report, he filed the complaint (Ex.PW1/A) dated 06.04.2009 with the Superintendent of Police. During his cross-examination by A-1 Mukesh Jain and A-8 A-8 Benu Jain, he deposed that he did not pass the aforesaid cheques and could not say who had deposited the said cheques for encashment. He was not cross-examined by remaining accused persons.
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26. PW-2 Sandeep Begril who was posted as Customer Care Officer from 2006 to May 2010 in Gujranwala Town Branch of PNB, Delhi deposed in respect of two vouchers dated 19.01.2009 i.e. debit voucher (Ex.PW2/A) for debit from Account No. 2408002100007070 of M/s BCC and credit voucher (Ex.PW2/B) for credit in Account No. 3072002100082111 of M/s AH&S on 19.01.2009 for the value of Rs.65 lakhs and vice versa for debit voucher (Ex.PW2/C) and credit voucher (Ex.PW2/D). After seeing A-2 Nipun Bansal, he identified him as the person who had come to get the amount of cheque transferred in the account of M/s AH&S. He deposed that he had only small normal conversation with A-2 Nipun Bansal, during which he told him that it might take some time as Sh. Jain, Officer was busy. He was not cross-examined by the accused persons.
27. PW-3 Ved Prakash Tyagi, Manager in Punjab National Bank, Printing and Stationary Department, C-13, Sector-1, Noida deposed that he was B. Sc. with diploma in Printing Technology and joined PNB in 1979 as Printing Technologist. He further deposed that on seeing a cheque, he could find out, if the cheque is genuine or fake. After seeing cheque (Ex.PW3/C) dated 02.03.2009 for an amount of Rs.4.50 lakhs; cheque (Ex.PW3/D) dated 04.03.2009 for an amount of Rs.3.65 lakhs favouring Shahid; cheque (Ex.PW3/B) dated 18.03.2009 for an amount of Rs.51,65,000/- favouring M/s CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 19 of 263 :: 20 ::
BMPL; cheque (Ex.PW3/A) dated 19.03.2009 for Rs.55.06 lakhs and cheque (Ex.PW3/E) dated 17.03.2009 for amount of Rs.1,58,70,000/- favouring M/s LPO, PW-3 deposed that he could say that the aforesaid cheques were genuine but alterations were made with regard to the cheque number, branch name and branch code. In his cross-examination, he deposed that all the aforesaid five cheques pertained to TTT series and branch name and code were not originally printed and it used to be filled up by the Branch officials. He denied the suggestion that alterations in the cheques are due to the branch name and code having been filled by the Branch officials, to whom the cheques were sent. He denied the suggestion that there is no alteration or addition in the aforesaid cheques.
28. PW-4 Pritpal Singh was examined firstly on 15.09.2010 and subsequently on 22.03.2012. In his testimony recorded on 15.09.2010 after seeing cheque No. 786680 dated 23.02.2009 (Ex.PW4/A), he deposed that impression of rubber stamp of M/s BCC is of rubber stamp which was prepared from his shop. He was cross-examined by Ld. Counsel for A-1 Mukesh Jain and A-8 Benu Jain and testified that rubber stamp which was prepared by him, was not shown to him and no mark of identification was put in the rubber stamp prepared from his shop. In his examination on 22.03.2012, PW-4 deposed that on 24.04.2009, CBI officials came to his shop, along with two persons, whose names were disclosed as CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 20 of 263 :: 21 ::
A-3 Mohd. Nauman and A-4 Amit Aggarwal by him during his identification in the Court. He deposed that the aforesaid two persons were brought to his shop by CBI and they were the persons who got prepared the stamp from his shop. Upon seeing five rubber stamps (Ex.P1 to Ex.P5) which were taken out from an unsealed plastic envelope, he deposed that these five stamps were prepared from his shop by A-3 Mohd. Nauman and A-4 Amit Aggarwal.
29. PW-4 was cross-examined by Ld. Amicus Curiae for A-3 Mohd. Nauman and deposed that he had come to the Court earlier about six months back when his statement was recorded. He further deposed that his statement was also recorded by the CBI, however, he had neither stated about the physical description of two accused in his statement to the CBI nor participated in TIP for identification of the aforesaid persons and those persons were shown to him second time in the office of CBI. He admitted that there was no distinguishable marks on the rubber stamps (Ex.P1 to Ex.P5) and same could also be prepared and bought from other markets. He denied the suggestion that accused persons did not get prepare rubber stamps from his shop or he had wrongly identified the accused persons. In his cross-examination by A-4 Amit Aggarwal, PW 4 admitted that he had seen both A-3 Mohd. Nauman and A-4 Amit Aggarwal last time when he had come to the Court.CC No. 131/2019
CBI Vs. Mukesh Kumar Jain & Others. Page No. 21 of 263 :: 22 ::
30. PW-5 Sadhna Srivastav, deposed that from 02.02.2006 to 19.01.2010, she was posted in PNB, Lal Bagh Branch, Lucknow and her duty used to be on 'May I Help You Counter'. She further deposed that Mr. Deepak Dave was the Manager and the Cheque Books used to be in the custody of two persons i.e. herself and Mr. Dave and they used to have one key each and they used to have passwords. She deposed that as per the Page G81 of Cheque Book Issue Register (Ex.PW5/A) for the period 03.04.2007 to 02.04.2009 giving the details of the series of the Cheque Book, Cheque book containing cheques No. 793201 to 793300 was destroyed on 30.01.2009. She further deposed that one lot containing 10 Cheque books of 100 leaves used to be taken out at one point of time from the joint custody of her and the Manager and used to be issued to the customers as per request. She further deposed that the Cheque Books not used, were destroyed by the Bank so that same were not used by anyone. She further deposed that even in case of missing Cheque Books, same were shown as destroyed in the record so that these Cheque Books were not misused. In case missing Cheque Book was found, same used to be been entered into the system.
31. During cross-examination conducted by A-6 Chandra Bhan Singh, PW-5 deposed that she used to issue the cheque book and in her absence whosoever would sit on the counter, used to issue the Cheque Book. She deposed that A-6 Chandra Bhan Singh was CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 22 of 263 :: 23 ::
employed in that Branch at the relevant time and he had no authority to issue the Cheque Book and the double locking system was not accessible to him. She further deposed that the Cheque Books were not given to the custody of A-6 Chandra Bhan Singh after they were taken out from the custody. She admitted that the cheque book containing cheque No. 793201 to 793300 which were destroyed, could not have been used as system would have not (sic) accepted it.
32. PW-6 Parveen Kumar Khurana deposed that in 2004, he was working at PNB Modi Nagar as Computer Tellor Operator. He knew accused A-9 Jamir Ahmad as he was resident of Modi Nagar and he came in contact with A-9 Jamir Ahmad as he wanted a credit card of HDFC Bank for which accused A-9 Jamir Ahmad took his Pan Card and Voter Card. PW-6 further deposed that he also knew A-4 Amit Aggarwal who was introduced by accused A-9 Jamir Ahmad for arranging a credit card. PW-6 further deposed that he also knew Mr. Rathi. PW-6 further deposed that accused A-9 Jamir Ahmad took him to a Hotel and told him about opening of a fake Bank Account.
He asked him to furnish information from PNB, Modi Nagar where he was working. A-4 Amit Aggarwal told PW-6 that he had made forged NSC etc. and he asked him for loan on those forged NSC's. PW-6 deposed that he did not commit anything to him and left the Hotel just to get rid of them. They tried to contact him again but he did not meet them. During cross-examination conducted by A-6 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 23 of 263 :: 24 ::
Chandra Bhan Singh, he admitted that PNB Modi Nagar is CBS Branch and in CBS Branch of Bank, account numbers of all the persons along with their specimen signatures and the details of the amount are available. He denied that while sitting in his Branch, he could have access to all the account numbers and specimen signatures of account holder. He deposed that no criminal case is pending against him but he was suspended once by his Bank in connection with some other complaint but later on, his suspension was withdrawn. He further deposed that he was suspected simply on the basis of doubt in some fraud case.
33. During cross-examination conducted by A-4 Amit Aggarwal, PW-6 deposed that A-4 Amit Aggarwal never telephoned him, however, once he visited his branch along with Mr. Rathi. He did not remember the name of the Hotel in which A-9 Jamir Ahmad and Amit Aggarwal took him. He denied that he never met A-4 Amit Aggarwal. He denied that accused A-9 Jamir Ahmad never introduced him to A-4 Amit Aggarwal. He further deposed that he did not know what A-4 Amit Aggarwal was doing at that time.
During cross-examination conducted by accused A-9 Jamir Ahmad, PW-6 deposed that he told CBI that he gave his PAN card and Voter card to accused A-9 Jamir Ahmad. He told CBI about A-4 Amit Aggarwal telling him about forged NSC's. He deposed that he told the CBI about taking loan on forged NSC's. However, the aforesaid CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 24 of 263 :: 25 ::
versions are not found mention in his statement (Ex.PW6/D1) made to CBI.
34. Sh. Parmod Kumar Pandey was examined on two dates and was numbered as PW-7 & PW-8. He deposed that he was Director of M/s AIPL and was having Bank Accounts in HDFC Bank and HSBC Bank in G.K. - I Branch and came in contact with A-1 Mukesh Jain through his CA Akhilesh Chand Shukla. He further deposed that he did not know whose Company is M/s Saint Grandeur, however, self cheque of Rs.10 lakhs taken by A-1 Mukesh Jain from him, was deposited in the name of that Company.
He identified A-1 Mukesh Jain in the Court and deposed that he telephonically informed him that he would transfer money into his Account by RTGS and asked him to issue self cheques to him (Mukesh Jain) for which, he would get commission of one and half percent. He deposed that he received Rs.25.30 lakhs and Rs.35.25 lakhs, respectively from A-1 Mukesh Jain through RTGS in Bank Account of M/s AIPL. He further deposed that in lieu of the aforesaid transferred amount, he issued three self cheques (Ex.PW8/J3 to Ex.PW8/J5) two for Rs.25 lakhs each to A-1 Mukesh Jain and one for Rs.10 lakhs in favour of M/s Saint Grandeur at the instance of Mukesh Jain who withdrew a sum of Rs.50 lakhs in respect of two cheques of Rs.25 lakhs each issued by him from HDFC Bank and HSBC Bank. He further deposed that A-
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1 Mukesh Jain filled up the name of the payee as "Saint Granduer"
on the cheque in his presence and the amount was transferred in the account of Saint Grandeur. He was cross-examined by A-1 Mukesh Jain and A-8 Benu Jain and denied the suggestion accused was not present at the time of withdrawal of money from the Bank. He further denied that he had received commission of 1.5%. He denied the suggestion that in order to adjust that commission of 1.5%, the cheque was issued on his request to M/s Saint Grandeur. He testified that he was a cloth merchant, however, he had not issued any purchase order in favour of M/s Saint Grandeur. He denied the suggestion that circulation of Rs.60 lakhs had nothing to do with the A-1 Mukesh Jain.
35. PW-9 Deepak Kumar deposed that he was doing a courier business in the name and style of M/s SGC from its office at Darya Ganj, New Delhi and was having a current Bank account in the name of the aforesaid firm at PNB at Darya Ganj, Delhi. He further deposed that he became acquainted with Mohd. Numan during the course of his business and he correctly identified him in the Court. A-3 Mohd. Numan told him that he was in export business and used to get couriers/parcels in the ordinary course of his business. He identified the Account Opening form (Ex.PW9/A) bearing his photograph, his handwriting and signatures. He deposed that the said Account was opened by him on 22.09.2007. He deposed that Le CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 26 of 263 :: 27 ::
Pay in slip dated 06.02.2009 (Ex.PW9/B) for Rs.6,000/- was also filled up and signed by him. He further deposed that on 07.02.2009, a new cheque book was issued to him for his firm containing 50 leaves and the cheque issue slip (Ex.PW9/C) bore his signatures on both sides and the signatures of the witness on both sides. He further deposed that he had handed over the said new cheque book to A-3 Mohd. Nauman but he did not disclose him the purpose of having the cheque book as such. Later, when he asked for its return, A-3 Mohd. Numan did not return the same and later in last week of March 2009, he came to know that the cheque book had been misused by A-3 Mohd. Numan and when he confronted him, he told him that the said cheque book had been misused by somebody else and he could not help him in the matter. PW-9 was cross-examined by accused A-3 Mohd. Naumn. He denied the suggestion given to him that no Cheque Book was taken by Mohd. Nauman from him.
36. PW-10 Sobir Singh Rathi deposed that he was a native of Village Saidpur, District Ghaziabad since by birth and he was having 375 square yards of Abadi Land in Vijay Nagar located in Modi Nagar near Railway Line which was purchased by him from wife of A-9 Jamir Ahmad, namely, Mst. Shamshida. He deposed that he was having friendly relationship with A-9 Jamir Ahmad for the last about 10/ 15 years. He further deposed that he was in the service of PAC and he was also deputed for escort duties and Court duties at CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 27 of 263 :: 28 ::
District Court Ghaziabad when he came into contact with A-4 Amit Aggarwal who met him about 3-4 times in District Court Ghaziabad. He deposed that A-4 Amit Aggarwal never met him at Pahar Ganj, Delhi at any point of time.
37. Ld. PP for CBI sought permission to cross-examine PW-10 on the ground that the witness was resiling from his previous statement given to CBI. Upon the permission being granted in his cross- examination conducted by Ld. PP for CBI, he deposed that he was not having deep friendly relationship with A-4 Amit Aggarwal but used to talk whenever he met on occasions. He denied that he prevailed upon accused A-9 Jamir Ahmad to stand surety for A-4 Amit Aggarwal in pending case at Ghaziabad though he admitted that he had met A-4 Amit Aggarwal in one Hotel located near Railway Line, Ghaziabad. He denied that he never met him at Hotel Klick International at Pahar Ganj, Delhi. He denied that in November 2008, he visited Hotel Klick International and met A-9 Jamir Ahmed, A-4 Amit Aggarwal and third person having burnt marks on his body. He denied that he made statement to IO in the present case that he had met to the aforesaid accused along with third one having burnt marks in Hotel Klick International. When the statement under Section 161 Cr. P.C. (Ex.PW10/A) was read over to him, he denied making the said statement. He further denied the suggestion given to him that during the said meeting with the said CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 28 of 263 :: 29 ::
persons, they discussed about forgery of cheques to withdraw some money from the Banks.
38. PW-11 Raj Kumar Jain deposed that in 2009, he was posted as Hall Incharge, PNB, Gujranwala Town, Delhi and on 11.04.2009, he handed over certain documents i.e. vouchers (Ex.PW2/A to Ex.PW2/D) to the CBI officers to the CBI vide seizure memo (Ex.PW11/A). He further deposed that the cheque for Rs.65 lakhs had been returned to the parties concerned with the remarks "since the signatures were not tallied/ differed". The cheque in question was displayed on his computer system which came to him for deletion but inadvertently instead of pressing 'D' on the key board, he pressed 'P' which resulted in transaction being complete and money getting transferred into the account of the payee. He immediately realized his mistake and made a reverse entry so as to recall the transfer / credit amount from the account of the payee. He further deposed that the cheque was handed over to A-2 Nipun Bansal. During his cross-examination conducted by A-2 Nipun Bansal, PW-11 admitted that the amount of the cheque in question was supposed to be credited in the account of M/s AH&S in their Bank vide Ex.PW2/A on transfer from the account of M/s BCC, Lucknow. During cross-examination conducted by A-2 Nipun Bansal, he deposed that he had seen A-2 Nipun Bansal in the office of CBI, however, he denied the suggestion that A-2 Nipun Bansal CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 29 of 263 :: 30 ::
did not visit his Bank on 19.01.2019 or that cheque was not handed over to Nipun Bansal by him.
39. PW-12 Deepak Dave deposed that he had been posted as Senior Manager in PNB at Lal Bagh, Lucknow, UP since May 2008. He deposed that Cheque Book Issue Register [Ex.PW12/A (colly.) for pages 1 to 100] of PNB, Lal Bagh, Lucknow, UP was maintained at the Bank in the ordinary course of its business Ex.PW12/A (colly for pages 1 to 100). According to page-81 regarding the Cheque Book TSP series, it has been found that cheque bearing No. TSP 793201 to 793300 has been shown as 'destroyed' in the system so as to prevent its misuse by anyone. The entry (Ex.PW12/B) in this regard has been reflected at page No. 81 on 30.01.2009, made by Sh. R. K. Tandon, the then CTO (Computer Terminal Operator). The Cheque Book mentioned as above was missing and not accounted by the Branch and intimation in this regard was given to the higher official and as per the instructions, the above said Cheque Book was reflected in the system as destroyed. He had identified the aforesaid Cheque Book from the judicial record and stated that it was the same Cheque Book which was lost / missing and shown to be destroyed in the system vide entry (Ex.PW12/B). PW-12 was not cross-examined by any of the accused persons.
40. PW-13 Harish Gupta, Assistant Vice President / Branch CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 30 of 263 :: 31 ::
Manager in HDFC Bank Ltd. Lucknow, deposed that vide (D-54) Sh. Virender Singh Inspector CBI has seized deposit slip (Ex.PW13/B) receipt dated 26.02.2009 from the Branch and vide this slip cheque (Ex.PW4/A) was deposited in the branch. The cheque (Ex.PW4/A) was processed by Sh. Chaudhary Mohd. Suja, Dy. Manager, HDFC and was cleared for encashment. He was not cross-examined by any of the accused persons.
41. PW-14 Jayendra Singh, Assistant Manager, SIFCL, Lucknow, UP deposed that SIFCL had been maintaining a Current Account with PNB, Lal Bagh Branch, Lucknow, UP bearing A/C No. 2408002190025885 and three persons namely, himself, Mr. H. C. Gupta, Regional Manager and Mr. Sudhershan Banerje, Cashier were authorized to operate the said account during 2009. He further deposed that SIFCL had no business transaction with M/s BMPL, Delhi and M/s EC, Delhi during 2008 and 2009. He further deposed that as per the RBI Guidelines, the financial institutions were supposed to convert the balance in their Current Account into fixed deposits at the end of every financial year on annual basis and in this regard, he along with Mr. Banerjee visited the PNB Branch, Lal Bagh, Lucknow, UP on 31.03.2009 to convert the cash of Rs.37 lakhs lying in their Current Account into fixed deposits but the Bank officials disclosed that only balance of about Rs.11 lakhs were in the account. He further deposed that they were alarmed and checked the CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 31 of 263 :: 32 ::
ledgers and other Books of Accounts of the Bank. The matter was reported to Mr. H. C. Gupta, Regional Manager. They checked the transactions in their Account and found certain unauthorized withdrawals. He deposed that the cheques (Ex.PW3/A & Ex.PW3/B) for Rs.55.06 lakhs and Rs.51.65 lakhs and cheque bearing No. 512796 (Ex.PW14/A) dated 25.03.2009 for Rs.40.53 lakhs appear to be bearing his signatures and that of Mr. S. Banerjee but those were never issued by SIFCL and same do not bear his genuine signatures and that of S. Banerjee and their signatures had been forged. He further deposed that the aforesaid two cheques for Rs.55.06 lakhs and Rs.51.65 lakhs were encashed. He was not cross-examined by any of the accused persons.
42. PW-14 was again examined on 28.11.2014 and he deposed that letter dated 21.05.2009 (Ex.PW14/B) with enclosures was provided by him to IO of CBI since three cheques detailed in the said letter, were never issued to the stated firm / Company by him as the serial numbers of the aforesaid cheques, were never issued by PNB to them. During his cross-examination conducted by A-3 Mohd. Nauman, A-5 Ganesh Lal and A-10 Raje @ Rajeev, he deposed that he was one of the signatories besides Sh. S.C. Gupta, Regional Manager and Sh. Sudarshan Banerjee, Cashier. He further deposed that even Sh. Sudarshan Banerjee did not tell him about signing on the aforesaid cheques. He further deposed that signatures CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 32 of 263 :: 33 ::
of Sh. S.C. Gupta were not on the cheques.
43. PW-15 Jay Prakash Singh, Staff Officer, Managing Director, UPSRTC, Lucknow, UP deposed that he was posted as Assistant Manager Finance in Head Office of UPSRTC w.e.f. March 2006 to April 2010 and was one of the authorized signatories of Bank Accounts on behalf of UPSRTC along with Mr. S. C. Joshi, the then General Manager. He deposed that the UPSRTC was maintaining account at PNB, Lal Bagh Branch, Lucknow, UP exclusively for the office transaction. After seeing a cheque (Ex.PW3/E) for Rs.1,58,70,000/- dated 17.03.2009 in favour of M/s LPO, he deposed that UPSRTC had no business transaction during the said period from the firm M/s LPO and the said cheque neither bore his signature as Assistant Manager nor of Sh. S. C. Joshi, DDO. He further deposed that the said cheque did not bear account number for the said cheque. He deposed that the said series of TTT was not issued to UPSRTC, HO, Lucknow, UP for Bank transaction etc. He deposed that Sh. Tripathi, Branch Manager of PNB, Lal Bagh Branch asked him about the said cheque and he replied that no such cheque had ever been issued by them in favour of M/S LPO. He was not cross-examined by any of the accused persons.
44. PW-16 Satender Nath Vajpaiye deposed that he had been engaged in construction work like road, building construction since CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 33 of 263 :: 34 ::
1985 and name of his firm was M/s Bajpayee Construction. He deposed that he was having Bank Account at PNB, Lal Bagh Branch, Lucknow, UP. and he was the sole authorized signatory of the Bank Account. After seeing three cheques (Ex.PW4/A, Ex.PW3/C & Ex.PW3/D) showing to have been issued from his abovesaid account, he deposed that the same neither bore his signature as authorized signatory nor seal of his firm M/s BCC. He deposed that vide seizure memo 11.03.2011 & 18.05.2009 (Ex.PW16/A), one blank cheque (Ex.P1) of TSP serious bearing No. 786680 of his account No. 2100007073 was taken by Sh. C. S. Prakash Narayan, the then Inspector CBI at his house, Lucknow, UP. He deposed that he handed over the said cheque to IO because by one cheque bearing the same number and same series was used for withdrawal of Rs.40 lakhs from his said account. He further deposed that the amount as mentioned in cheque Ex.PW4/A was encashed and remaining two cheques could not be cleared and the Bank had intimated him about all three cheques as well as clearance of Rs.40 lakhs. He deposed that he had no business relationship with the firms namely M/s BTC and M/s AHC. He deposed that he had never been issued a cheque book bearing TTT series for his abovesaid account No. 2100007073. He was not cross-examined by any of the accused persons.
45. PW-17 Ajay Prashad Mehra, deposed that he was posted in CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 34 of 263 :: 35 ::
Darya Ganj Branch of PNB as an Officer in 2006. He deposed that vide D-3 i.e. seizure memo (Ex.PW17/A), Account Opening Form of the Banks Customer i.e. M/s Shree Ganesh Courier, a proprietorship concern of Deepak Sharma (Ex.PW9/A) and requisition slip for issuance of Cheque Book (Ex.PW9/C) were seized. He further deposed that vide Ex.PW9/C, he had verified the signatures of account holder and after that he issued the Cheque Book to the account holder and entry in this regard was made in the Cheque Book Register i.e. D-7 at Page No. 190 dated 07.02.2009, in his handwriting (Ex.PW17/B).
46. During cross-examination conducted by A-3 Mohd. Nauman, he admitted that during the relevant time it was mandatory to fill up the Bank Code, City Code and the Account number on each leaf of the Cheque Book. He admitted that in this case the Cheque Book was issued without filling up such requirements. He volunteered to state that it could have happened due to rush of work and also for the fact that the customer was known to the Bank and thus, it was issued in good faith.
47. PW-18 Darpan Kumar Chhibber, deposed that in September, 2008, he was posted in the CT Back Office at Parliament Street, New Delhi and he was in-charge of CTS (Cheque Truncation System) outward clearing. He had explained the entire process CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 35 of 263 :: 36 ::
regarding the clearance of outstation cheques. The CTS was a system of data entry based on verification of the cheques that used to be presented for clearing. The cheque on its receipt used to be scanned and its image used to be taken by the software so as to upload the data on the system for the purposes of onward clearance by the Bank concerned through server of the RBI. He deposed that Mr. S. Nagpal, the Officer of the Bank scanned the cheque (Ex.PW3/E) dated 17.03.2009 drawn on PNB, Lal Bagh Branch, Lucknow for Rs.1,58,70,000/- by UPSRTC in favour of M/s. LPO and transmitted to Data Entry Operator, who fed the data in regard to the amount of the cheque in the account of the payer. He further deposed that thereafter, the data so fed would be sent to the Officer of the drawee Bank for verification. The cheque Ex.PW3/E was sent to him for the purposes of verification and he verified computerised data in regard to the cheque number, MICR Code, amount of the cheque and transaction code. On perusal of the cheque Ex.PW3/E, PW-18 deposed that that cheque was presented in the drop box of Bank of Baroda, Parliament Street by using the pay in slip (R-1) of Bank of Baroda, Corporate Banking, New Delhi bearing serial No. 1043 dated 20.03.2009. He further deposed that on 04.06.2009 vide seizure memo (Ex.PW18/B), pay-in-slip (R-1) was taken from his possession by Inspector CBI. He further deposed that Mr. O. P. Jaitely was also posted and functioning as AGM in their Branch CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 36 of 263 :: 37 ::
during the relevant time. He further deposed that on 06.04.2009, cheque (Ex.PW3/E) was taken from his possession, vide seizure memo (D-117) (Ex.PW18/B). He deposed that Statement of Account of M/s LPO bearing Account No. 31680200000032 indicates that cheque for Rs.1,58,70,000/- was credited on 21.03.2009 and on 23.03.2009 there was a debit entry for reversing the credit. He was not cross-examined by accused persons.
48. PW-19 Namita Devgon, an Officer posted at Hauz Khas Branch, Delhi from January 2004 and till November 2007, deposed that Current A/c No. 17360 was opened jointly in the name of M/s BMPL vide Account Opening Form (D-21) (Ex.PW19/A) and three persons namely Mukesh Jain, Beenu Jain and Radhika Mehra were authorised persons for Banking business but the Account could be operated by any of two. He deposed that the aforesaid three persons put their respective signatures on specimen card (Ex.PW19/B) in his presence and, thereafter, he had put his signatures. He deposed that copy of Resolution (Ex.PW19/C) of M/s BMPL in this regard, was also placed on record. He further deposed that after having CBS branches, the entire A/c number was changed. He deposed that the said A/c was opened on introduction of Sh. Dinesh Sharda having A/c No. 16925. During cross-examination conducted by accused Mukesh Jain and A-8 Benu Jain, it was deposed that she could not make out the exact date from Ex.PW19/A and Ex.PW19/B, from CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 37 of 263 :: 38 ::
which Account was opened. She volunteered to state that it was sometimes in June-July, 2005. He was not cross-examined by remaining persons.
49. PW-20 Rajeshwar Rangari, deposed that he was posted In Hauz Khas Branch of Bank of Baroda from 2007 to 2009. He deposed that two self cheques for sum of Rs.9 lakhs each, one self cheque for sum of Rs.15 lakhs and one self cheque for sum of Rs.5 lakhs (Ex.PW20/A1 to Ex.PW20/A4) were presented for payments on the dates that are born on the cheques for clearance in respect of C.A. No. 22750200000. He deposed that these cheques were self cheques which were presented for encashment in person on behalf of the authorised signatories, namely, Beenu Jain and Mukesh Jain of M/s BMPL. He deposed that the amounts mentioned in the said cheques were debited in the said account and all the four cheques were passed through him for clearance. He deposed that certified copies of Statement of Account (Ex.PW20/B) in respect of C.A. No. 22750200000 indicates debit of the said cheques at Mark X1 to X4. He deposed that document (Ex.PW20/C) is a gist of the Statement prepared by the Bank with regard to the said four cheques. He deposed that vide document (Ex.PW20/D) dated 06.04.2009 written by him and signed by Shri BC Gupta, the then Manager, Bank of Baroda, Hauz Khas, Delhi, details of the four cheques besides the Statement of Account and the gist were supplied to the CBI. He CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 38 of 263 :: 39 ::
deposed that the cheques Ex.PW3/A and Ex.PW3/B were deposited on 20.03.2009 and 23.09.2009, respectively for crediting these amounts in the aforesaid C.A. No. 22750200000 and the credit entries (MarkX5 and MarkX6) of the said cheques were entered in the aforesaid Account on 21.03.2009 and 23.03.2009 respectively. He deposed that from this Account of A-1 Mukesh Jain, Rs.25.25 lakhs were transferred twice through RTGS. After that the Bank had frozen the amount lying in the account. During the cross- examination conducted by A-1 Mukesh Jain and A-8 Benu Jain, he deposed that the cheque (Ex.PW20/A1) was jointly signed by A-1 Mukesh Jain and A-8 Benu Jain while other three cheques (Ex.PW20/A2 to Ex.PW20/A4) were signed by only A-1 Mukesh Jain.
50. PW-21 Pramod Jain, deposed that he was posted as Joint Manager from July 2008 till 14th November 2011, deposed that Ex.PW21/A was written with reference to Account of M/s LPO. He deposed that Account of M/s LPO was opened vide Account Opening Form (Ex.PW21/B) which was permitted by him to open. He identified Statement of Account (Ex.PW21/C) of the said Account. He was not cross-examined by accused persons.
51. PW-22 Ahmad Khursheed, Assistant Manager at HDFC Bank deposed that he had joined Greater Kailash-I Branch of HDFC in the CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 39 of 263 :: 40 ::
month of April, 2008. He deposed that vide cheque Ex.PW8/J1 bearing No. 180007 for Rs.25 lakhs issued in favour of M/s AIPL dated 28.03.2009 was withdrawn by Sh. Pramod Kumar Pandey. There is nothing to discredit his version during the cross- examination conducted by A-1 Mukesh Jain and A-8 Benu Jain as PW-22 deposed on the basis of record. He was not cross-examined by remaining accused persons.
52. PW-23 Ramphal Veerawal, was posted at Bank of Baroda, Hauz Khas Branch since 2008. He deposed that D-22 to D-25 i.e. two cheques each for Rs.9 lakhs, one cheque for Rs.15 lakhs and one cheque for Rs.5 lakhs were self cheques (Ex.PW20/A1 to Ex.PW20/A4) issued by M/s BMPL. He further deposed that after passing of the cheques by the concerned officers, he had debited the amount of the cheques in the concerned accounts of M/s BMPL and in token of debiting of amounts, he had mentioned the transaction number on all the cheques. During cross-examination conducted by A-1 Mukesh Jain and A-8 Benu Jain, he deposed that he did not know if there was any complaint or not in regard to operation of Accounts by M/s BMPL. He further deposed that he did not tally the signature on the cheques nor disbursed the cash against each cheques. He was not cross-examined by remaining accused persons.
53. PW-24 Nidhi Aggarwal, posted as a teller, teller authorizer CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 40 of 263 :: 41 ::
and PB Authorizer i.e. approving authority for opening of new accounts in HDFC Bank at Kashmere Gate Branch, during the period March, 2005 to April, 2010, deposed regarding Account Opening Form (Ex.PW24/A) of M/s BTC, permitted to be opened by Shri Rahul Sahai, the then PB Authorizer and Shri O.S. Rajiv, the then Personal Banker. She further deposed that cheque (Ex.PW4/A) dated 23.02.2009 for a sum of Rs.40 lakhs was not dealt within their branch. She also deposed regarding cheque (Ex.PW24/B) bearing No. 332447 dated 27.02.2009 for a sum of Rs.4,27,592/- and against that cheque, a pay order in favour of ICICI Bank Limited, payable at Delhi was prepared on the pay order application form (Ex.PW24/C). She also deposed regarding computer generated Statement of Account of M/s BTC of CA No. 03302560001578 (PX). She also deposed regarding a letter dated 11.04.2009 (Ex.PW24/D) sent by Sh. Jasvinder Singh the then Branch Manager HDFC, Kashmere Gate Branch to Sh. C. S. Prakash Narayan Inspector, CBI, Delhi. She also deposed regarding Statement of Account of M/s Radha Enterprises (Ex.PW24/E). She deposed that as per the aforesaid Statement of Account, on 03.03.2009, a fund of Rs.29.50 lakhs was credited through fund transfer entry and a cheque of Rs.1,79,192/- was deposited through local clearing and an amount of Rs.27 lakhs was debited through fund transfer. She also deposed Statement of Account No. 03302560004776 (Ex.PW24/8F) CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 41 of 263 :: 42 ::
of M/s Rahul Kumar Rohit Kumar for the period 12.02.2009 to 11.03.2009. She also deposed regarding a cheque bearing No. 495635 (Ex.PW24/G) for sum of Rs.27 lakhs dated 03.03.2009 in the name of Rahul Kumar Rohit Kumar which was deposited through pay-in-slip on 03.03.2009. She also deposed regarding passing of the cheques bearing Nos. 527932, 527933 & 527934 for sum of Rs.10.80 lakhs, Rs.7 lakhs and Rs.9 lakhs, respectively (Ex.PW24/H, Ex.PW24/I and Ex.PW24/J, respectively) and against all the said three cheques, three pay orders of the respective amounts were issued in favour of M/s BTC on the applications (Ex.PW24/K, Ex.PW24/L and Ex.PW24/M, respectively). During cross-examination by A-2 Nipun Bansal, she deposed that she could not say as to who had deposited the cheque (Ex.PW4/A) for clearance as the same was done through centralized clearance.
54. PW-25 Rajat Magoo who was Deputy Manager in HDFC Bank Saket Branch in 2008 deposed that his duties included cash handling, clearing and fund transfer. He deposed cheque (Ex.PW8/J9) bearing No. 180008 dated 31.03.2009 for a sum of Rs.10 lakhs was put in system for RTGS vide RTGS Form (Ex.PW8/J8) which was submitted by M/s AIPL for transferring the amount to the Bank account of said firm at HSBC Bank Limited, GK-I, New Delhi. PW-25 was not cross-examined by accused persons.CC No. 131/2019
CBI Vs. Mukesh Kumar Jain & Others. Page No. 42 of 263 :: 43 ::
55. PW-26 Sarika Khare, posted as Computer Terminal Operator in PNB in 2009 deposed that his duties were to put the cheques on the system in order to maintain the data that used to be received from Clearing House of the Bank. He deposed regarding cheque (Ex.PW4/A), identifying initials of Sh. K.K. Malik, Sr. Manager, in PNB Back Office, Lucknow on the aforesaid cheque. He was not cross-examined by accused persons.
56. PW-27 Manmohan Mehta posted as Senior Manager at Darya Ganj Branch, New Delhi in 2009 deposed regarding handing over documents to CBI Inspector by Shri MK Chaudhary vide seizure memo dated 06.04.2009 (Ex.PW27/A). He further deposed regarding Outward Clearing List dated 20.03.2009 (Ex.PW27/A1) which was used to be maintained as per the procedure and rules of the Bank in order to show those cheques which were sent for clearance pertaining to the other Banks. He deposed regarding the entry (Ex.PW27/A2) of the cheque (Ex.PW3/A) for sum of Rs.55.06 lakhs in the name of M/s BMPL. He deposed that the clearing list used to be sent through forwarding letter to the service branch/clearing house. During cross-examination conducted by A-1 Mukesh Jain, PW-27 deposed that cheque (Ex.PW3/A) was put in the Box meant for clearing by the payee as per the practice prevalent in 2009 and the same practice was continuing till date and, therefore, there was no counter- foil along with the cheque to CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 43 of 263 :: 44 ::
indicate the name of the depositor.
57. PW-28 Ashok Kumar Gupta, Senior Internal Auditor, Inspection & Audult Division, PNB, Rajindra Place, Rajindra Bhawan New Delhi who was working as Senior Internal Inspector in May, 2009 deposed about the procedure to be followed in respect to Multi City Cheque Book after introduction of 'CBS'. He also deposed regarding printing and supply of cheques to the Branches of the Bank. During cross-examination conducted by A-9 Jamir Ahmad, nothing is elicited to discredit his version. He was not cross-examined by remaining accused persons.
58. PW-29 Rajesh Sarin, deposed that he was posted as Senior Manager in PNB at Regional Clearing Centre, Parliament Street, New Delhi in 2009 and remained posted in 'CTS' since its start in December, 2007. He deposed that in present days after the advent of CBS, in any cheque there could be found four types of codes ; first the cheque number, second MICR Code which is a 9 digit code, third is a base number and the fourth is the trans code. He further deposed that after the advent of CTS, the Bank where the cheques are presented for payment to get the cheques scanned with all the relevant particulars on the system and all the cheques which are so scanned are put on a flat file i.e. sent electronically to the Clearing House run by the RBI at Delhi. He further deposed that the RBI CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 44 of 263 :: 45 ::
maintains the inter Bank accounts in regard to clearing of cheques and drafts in CTS system. During cross-examination by A-1 Mukesh Jain, PW-29 deposed that when the transaction is involved as between two Branches of the same Bank, the platform of the RBI is not used and it is only when the transaction as between the two branches of different Banks that the Hub created by the RBI is used. He admitted that RBI is merely a conduit or a facilitator that provides its servers for online clearing of the cheques / drafts.
59. During cross-examination by A-6 Chandra Bhan Singh, he deposed that in passing of the cheque, the alpha code is not relevant but it is the cheque number that is relevant. He further deposed that the alpha code is relevant only to recognise in the CBS System for the purpose of clearance.
60. PW-30 Virender Kumar Garg, deposed that till the date of his deposition in the Court he was posted as Head Cashier, in Bank of Baroda, Hauz Khas since 2005. He deposed regarding the cheques (Ex.PW20/A1 to Ex.PW20/A4). He deposed that Rs.9 lakhs vide cheque Ex.PW22/A1 was paid to accused A-8 Benu Jain on behalf of M/s BMPL and the amounts mentioned in remaining three cheques, were paid to A-1 Mukesh Jain as all cheques were self cheques. He further deposed that in token of payment, he had put the amount along with his initials in the respective cheques and CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 45 of 263 :: 46 ::
accused A-8 Benu Jain and A-1 Mukesh Jain had put their respective signatures in his presence at the time of payment. He identified their signatures at points P1 to P4. During cross-examination conducted by A-1 Mukesh Jain, he deposed that he was not supposed to know each and every customer personally who comes for encashment for cheque but unofficially he might know a few one who frequently visit the Bank. He further deposed that at the time of making payment, he was not supposed to tally the signatures on the cheque with the specimen signatures card of the customer card. He volunteered to state that the customer was supposed to sign on the back of the cheque in his presence in token of receipt of the amount and whenever there was a doubt about the identity of the person who was present with the token, it was within his power to verify his identity.
61. PW-31 Ramesh Chander was posted as Chief Manager, PNB Lal Bagh Branch, BM Road, Lucknow, UP till 30.09.2009. He deposed regarding debit of Rs.40 lakhs and Rs.1 crore unauthorisedly from the Current Account of M/s BCC and M/s SIFCL respectively as reported by Mr. Bajpai, Proprietor of M/s BCC and representative of SIFCL respectively. He deposed that it was informed by M/s BCC and M/s SIFCL that no such cheques were issued by them for encashment of the said amounts. M/s BCC and M/s SIFCL filed their respective complaints [Ex.PW31/C CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 46 of 263 :: 47 ::
(colly.)] with the Bank. He further deposed that during his tenure, Sh. Deepak Dave was Hall Incharge in the Bank and in that capacity, he used to supervise the entire Banking transactions of routine nature in the Bank and during the relevant time, he was informed by Sh. Deepak Dave that one Cheque Book containing 100 leaves meant for Current Account was missing from the Bank. He further deposed that Sh. Dave was actually the custodian of the Cheque Books as well and data in regard to such misplaced Cheque Book was put in the system in order to get it cancelled. He further deposed that once such data had been entered into the system cancelling the Cheque Book, there could be no clearing of such cheques by the system. He identified A-6 Chander Bhan Singh as he was working as Clerk-cum-Cashier in the Bank and he used to be deputed on various duties on different counters in the Bank as per the exigencies of the work. He deposed that vide seizure memo dated 15.05.2009 (Ex.PW31/A), he had handed over some documents to the Inspector of CBI at Lucknow. He deposed that he also handed over the complaint lodged by Mr. Bajpai on behalf of M/s BCC with legal notice sent on behalf of M/s BCC to Inspector, CBI vide his forwarding letter dated 15.05.2009 (Ex.PW31/B). He deposed that the said complaints were forwarded to the Higher-Up authorities for further action at their end. During cross-examination conducted by A-1 Mukesh Jain, he deposed that the complaint of CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 47 of 263 :: 48 ::
M/s BCC and M/s SIFCL are dated 20.03.2009 & 31.03.2009 respectively. He deposed that he could not tell the exact date on which the missing Cheque Book containing 100 leaves came to his notice, however, as far as he recollected, it was prior to the complaint dated 20.03.2009 and might have been known a month or two earlier. He deposed that during the relevant time, a manual record used to be prepared incorporating the fact of cancellation of the Cheque Book but now entire thing is done on the system itself. He deposed that he did not make any data entry in regard to cancellation of missing cheque. He did not remember on which date, data entry was made by Mr. Deepak Dave. PW-31 further deposed that during the relevant time, 'CBS' had become operational in their Branch and the Cheque Book which was misplaced was containing MICR numbers but not the Account Number. He volunteered to state that same was not personalised and it was not having the name of the customer.
62. PW-32 Pradeep Arora, posted as Computer Terminal Operator in the Back Office ECE House at K.G. Marg, New Delhi of PNB during 2009 deposed regarding his joining the investigation conducted by the CBI team in this case in the month of April, 2009 onwards along with his Bank colleague Sh. H.O. Vohra. He deposed that he went to two Hotels and one Guest House in Paharganj in order to examine the guests registers at such places. He deposed that CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 48 of 263 :: 49 ::
during such visits to the Hotels and the Guest House, the CBI officer prepared memos (Ex.PW32/A1 to Ex.PW32/A3). He was not cross-examined by accused persons.
63. PW-33 Ramesh Chander, deposed that he was posted as Manager in the RCC i.e. Regional Clearing Centre of PNB at Parliament Street, New Delhi in 2009. He further deposed that the Regional Clearing Centre is a Hub created by the Bank for inter and intra Bank clearance of cheques/drafts. He further deposed that during the relevant time, clearance of any cheque/ draft beyond Rs.1 lakh used to be considered as high value clearance and as per the Banking norms, such cheques used to be cleared for payment within a day, if so, demanded by the concerned Bank on behalf of the customer. He deposed that the details of cheque No. 512796 (Ex.PW14/A) drawn on PNB as mentioned in Annexure II (record of the inward clearing of the cheques maintained in the system maintained at the RCC), indicates that all the cheques mentioned therein were rejected and not cleared for payment for some reason or the other. He further deposed that cheque Ex.PW14/A was received from J&K Bank, Vasant Vihar Branch, New Delhi and the same was put in the system on 31.03.2009 and on the same day the clearance of the cheque was declined by the Bank due to "insufficient funds" in the accounts of the drawer. During cross-
examination by A-1 Mukesh Jain, he deposed that he did not find CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 49 of 263 :: 50 ::
anything in the record shown to him that the cheques were not cleared on account of cheque leaves having been cancelled for some reason or the other. He further deposed that Alpha code on the cheques carry 'not consideration for clearance of a cheque'.
64. PW-34 Kamaljeet Singh, deposed that he was posted and functioning as Senior Manager at PNB, Dariya Ganj Branch in 2005. He proved Account Opening Form (Ex.PW9/A) in the name of Ganesh Courier. During his cross-examination by A-1 Mukesh Jain and A-8 Benu Jain, he deposed that he did not issue any Cheque Book as he was not dealing with the Current Account seat operations at the time of opening of Account. He further deposed that Account Holder makes a request for issuance of Cheque Book and same is issued by the concerned official.
65. PW-35 Ved Prakash Jhamb deposed that in 2009, he was posted and functioning as Accountant in Hauz Khas Branch of BoB.
He explained RTGS procedure and deposed regarding two RTGS Application Forms (Ex.PW35/C and Ex.PW35/D) dated 27.03.2009, submitted on behalf of M/s BMPL, bearing Current Account No. 22750200000259 mentioning therein the cheque Nos. 323499 and 323498 (Ex.PW35/A and Ex.PW35/B) for sum of Rs.25.25 lakhs each, issued by the authorised signatory for M/s BMPL. He deposed that the aforesaid Application Forms were dealt CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 50 of 263 :: 51 ::
by him and passed. He further deposed that the aforesaid two cheques were sent in the name of M/s AIPL and receiving Bank was HDFC GK-1, New Delhi through C.A. No. 009220000092 and in another current Account with HSBC, M-Block, GK-I, New Delhi. He proved certificate under Section 2A of the Bankers Book of Evidence Act 1891 (Ex.PW35/E) in regard to the correctness of electronic system through which the RTGS system was administered. He proved Statement of Account (Ex.PW20/B) dated 27.03.2009 of Account No. 2275000000259 showing debit entry of Rs.25.25 lakhs with reference to cheque No. 323499 which was paid to M/s AIPL by crediting his Account with the said amount in HDFC Bank. He further deposed regarding debit of another cheque for Rs.25,25,000/- towards payment to M/s AIPL in its Account with HSBC Bank but there no actual transfer of money took place as the Account number of the beneficiary had not been indicated/ mentioned in the prescribed proforma/ application and, therefore, the said amount of Rs.25.25 lakhs was credited again on 28.03.2009.
66. During cross-examination conducted by A-1 Mukesh Jain and A-8 Benu Jain, he deposed that A-1 Mukesh Jain was the signatory on the application for request of RTGS transfer as per Ex.PW19/B i.e. Account Opening Form-cum-Specimen Card. He further deposed that prior to the issuance of the two cheques Ex.PW35/A and Ex.PW35/B, there was a credit balance of Rs.88,50,727/- in the CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 51 of 263 :: 52 ::
Account of M/s BMPL in the Statement of Account (Ex.PW20/B).
67. PW-36 Keshar Lal Bairwa, deposed that he remained posted in CTS Section in PNB, Connaught Place Branch w.e.f. July 2007 to October, 2009 and he had been looking after the duties of reconciling the transfers under the imprest accounts that dealt with the transactions that routed through the RBI. He deposed regarding 'CTS' and two cheques bearing Nos. 512799 for Rs.55.06 lakhs (Ex.PW3/A) and cheque No. 512780 for Rs.51.65 lakhs (Ex.PW3/B) issued on behalf of M/s SIFCL on 19.02.2009 and 18.03.2009 in favour of M/s BMPL. He deposed regarding letter dated 17.06.2009 (Ex.PW36/A) issued under the signatures of Sh.
K.P. Malik, the then Chief Manager, PNB, Back Office, ECE House, New Delhi along with a certificate (Ex.PW36/B) under the relevant provision of Bankers Books of Evidence Act. He further deposed that the first annexure as mentioned in Ex.PW36/A is the Block List (Ex.PW36/C) which contains the details in regard to the screen shots/images of the cheques that were checked by the concerned computer operator in a block of hundred giving the details in regard to the time and date of log in besides cheque number, drawee Bank, amount, Bank code and settlement date. He deposed regarding the certified copies of the screen shot (in three pages) [Ex.PW36/D (colly)] of the cheque Ex.PW3/A. He deposed regarding another block list (Ex.PW36/E) indicating the processing of cheque CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 52 of 263 :: 53 ::
Ex.PW3/B and the certified copies [Ex.PW36/D (colly)] of the screen shots along with scanned copies of the specimen signatures (in six pages) of the cheque Ex.PW3/B. He further deposed regarding the data entries and verification reports (Ex.PW36/G1 and Ex.PW36/G2) in respect of the said two cheques respectively. During cross-examination conducted by A-1 Mukesh Jain and A-8 Benu Jain, he deposed that the CTS system neither examines the number or the series of cheque so as to give a report whether or not the cheque is genuine or forged in regard to such series or number. On Court Question, PW 36 deposed that no Data Bank is maintained in regard to the number or series of the Cheque Books issued by various Branches scattered all over India. He further deposed that no confirmation is sought from the drawer of the cheque at our level before making the clearance as it is not required.
68. PW-37 Rahul Jain deposed that he was posted and functioning as Assistant Manager (Operations), HSBC, Ashoka Estate, Barakhamba Road, New Delhi since 16.06.2008. He deposed that vide Production cum Seizure Memo (Ex.PW37/A), he had handed over some documents to the Inspector C.S. Prakash Narain, CBI. He deposed regarding cheque (Ex.PW8/J2) dated 28.03.2009 for sum of Rs.25 lakhs issued by M/s AIPL, pay in slip (Ex.PW37/A1) dated 02.04.2009, and cheque (Ex.PW8/J-10) dated 02.04.2009 for sum of Rs.10 lakhs issued by M/s AIPL and RTGS CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 53 of 263 :: 54 ::
message from Bank of Baroda to HSBC Bank on 27.03.2009 regarding receipt of credit of Rs.25.25 lakhs from the account of M/s BMPL to M/s AIPL in its Account No. 094-283629-001, maintained at Greater Kailash Branch, New Delhi of HSBC supported by certificate under Section 65B to 65B(2) of Indian Evidence Act (Ex.PW37/A2). He further deposed that Mr. Arun Oberoi was the Vice President (Operations) during April, 2009 and deposed that vide forwarding letter (Ex.PW37/B), some documents were sent to CBI. He deposed regarding Account Opening Form in the name of M/s Saint Grandeur (Ex.PW37/B1), Statement of Account {Ex.PW37/B2 (colly)}. He deposed regarding a letter dated 29.04.2009 (Ex.PW37/C), vide this letter, Mr. Oberoi had handed over documents i.e. (1) certified copy of Account Opening Form of M/s AIPL (Ex.PW8/A) and (ii) the computer generated Statement of Account of the aforesaid firm (Ex.PW37/C1) to Inspector, CBI. During his cross-examination conducted by A-1 Mukesh Jain and A- 8 Benu Jain, he deposed that as per the Statement of Account (Ex.PW37/C1) there was a credit balance of Rs.40.72p as on 12.03.2009. He further deposed that as per (Ex.PW8/A) Sh. Parmod Kumar Pandey and Ms. Anita Pandey, both Directors of M/s AIPL, were the authorised signatories to operate the account. After going through the Statement of Account Ex.PW37/C, he deposed that on 30.03.2009, Rs.9000/- had been withdrawn from the said account CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 54 of 263 :: 55 ::
through ATM and on the same date Rs.25 lakhs was withdrawn/encashed by Pramod Kumar Pandey vide cheque Ex.PW8/J2 which is a self cheque. He further deposed that cheque for sum of Rs.10 lakhs (Ex.PW8/J10) appears to had been signed by the account holder of M/s AIPL, namely, Pramod Kumar Pandey.
69. PW-38 Ikramuddin deposed that he knew accused A-9 Jamir Ahmad, being his neighbour, residing in Vijay Nagar, Modi Nagar, Ghaziabad for the last several years. He further deposed that one Raje residing at Visokar area near Modi Nagar, was his close friend for about 5-6 years residing in his neighbourhood. He deposed that he could not tell if A-9 Jamir Ahmad was acquainted with Raje. He did not know accused Mohd. Nuaman. He arranged the marriage of his friend Raje with a known family. He deposed that A-9 Jamir Ahmed had never introduced him to A-3 Mohd. Nauman.
70. PW-38 was declared hostile and he was cross-examined by Ld. Sr. PP for CBI, he denied to have visited PNB Branch at Morta for the purpose of opening an account along with A-10 Raje @ Rajeev and A-9 Jamir Ahmad. He was not cross-examined by any of the accused persons.
71. PW-39 Naval Kishore Mishra, deposed that he was employed and functioning as Manager, Hotel Nancy, Pahar Ganj, Delhi since CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 55 of 263 :: 56 ::
October 1992. He deposed that as per four pages i.e. xerox copy of register of Hotel Nancy (Ex.PW39/A), A-4 Amit Aggarwal stayed at his Hotel vide entry at serial No. 4396 & 4613 which were made by A-4 Amit Aggarwal in his handwriting. He further deposed that A-4 Amit Agarwal was the regular visitor of his Hotel and he correctly identified him. He further deposed that A-4 Amit Aggarwal hailed from Lucknow and used to stay at their Hotel and probably stayed more than 15 to 20 times. He further deposed that on 18.04.2009, CBI officials had brought one person to their Hotel having burn marks on his face and he disclosed to the CBI officials that A-4 Amit Aggarwal used to stay in their hotel. He correctly identified the said person as A-3 Mohd. Nauman in the Court. During cross- examination conducted by Ld. Counsel for A-4 Amit Aggarwal, PW- 39 deposed that whenever any guest stays at their Hotel, they require an ID proof to be taken by way of its photocopy. He deposed that there was no photocopy of ID proof along with the copy of the guest register Ex.PW39/A. He denied that A-4 Amit Aggarwal never stayed in their hotel. During cross-examination conducted by A-3 Mohd. Nauman, PW-39 denied that he identified A-3 Mohd.
Nauman on asking of Naib Court. PW-39 was not cross-examined by remaining accused persons.
72. PW-40 Deepak Kumar-Receptionist, Hotel Pallai Palace, CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 56 of 263 :: 57 ::
Pahar Ganj, Delhi deposed that he had been working in the aforesaid hotel for the last 17-18 years and knew A-4 Amit Aggarwal and PW- 40 correctly identified A-4 Amit Aggarwal. On Court question, he deposed that A-4 Amit Aggarwal had stayed in their hotel only once.
He deposed that on 18.04.2009, CBI officials had brought one person aged about 35 years, who was having some burnt marks on his face and on being asked, the witness had pointed out towards A- 3 Mohd. Nauman as the said person. The said person, i.e., A-3 Mohd. Nauman was interrogated in their presence and he made some statement against A-4 Amit Aggarwal. He further deposed that on the instructions of the CBI, he had supplied an extract by way of photocopy of the guest register (Ex.PW40/A) bearing his signatures on both pages and at serial No. 789 in respect of entry of A-4 Amit Aggarwal. He further deposed that photocopy of the identity proof (Ex.PW40/B) was taken at the time of allowing the guest to stay in the Hotel. He deposed that disclosure statement (Ex.PW40/C) made by A-3 Mohd. Nauman was recorded in his presence. During cross- examination conducted A-4 Amit Aggarwal and A-3 Mohd. Nauman, nothing could come out to demonstrate the version of PW-
40. He was not cross-examined by remaining accused persons.
73. PW-41 Tikka Ram, deposed that in April, 2009, he was posted and functioning as Cashier in Punjab National Bank, Khan Market, New Delhi and on 22.04.2009, the disclosure statement CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 57 of 263 :: 58 ::
(Ex.PW41/A) of A-3 Mohd. Nauman was recorded in his presence and presence of his colleague Sukhbir Singh. During cross- examination conducted by A-3 Mohd. Nauman, he denied to have identified A-3 Mohd. Nauman on asking of Naib Court. He was not cross-examined by remaining accused persons.
74. PW-42 Hari Om Vohra deposed that in April, 2009, he was posted and functioning as an Officer in PNB, Back Office, ECE House, Connaught Place, New Delhi. On 08.04.2009, he was called to the office of CBI and joined as a witness in a raiding team. He deposed that premises of A-2 Nipun Bansal behind Novelty Cinema were searched by the members of the CBI team in his presence and certain documents were seized by the CBI from the premises of M/s BTC vide seizure memo (Ex.PW42/A) and at that time, owner/proprietor of the firm i.e. Nipun Bansal was also present. He further deposed that thereafter on 18.04.2009, CBI officials and one person having burn marks, visited some Hotels in Delhi and in this regard, documents Ex.PW39/B and Ex.PW40/C were prepared. He further deposed that they also visited the shop of M/s Swarn Stamp Works and a memo (Ex.PW4/B) was prepared at the shop. He deposed disclosure memo dated 23.04.2009 (Ex.PW42/B) of A-3 Mohd. Nauman and disclosure memo dated 23.04.2009 (Ex.PW42/C) of A-4 Amit Aggarwal, were prepared in the CBI CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 58 of 263 :: 59 ::
office in his presence. He identified A-4 Amit Aggarwal in the Court. He also deposed that specimen handwriting and signatures of A-4 Amit Aggarwal (Ex.PW42/D) from page no. 1 to 6 and that of accused Chander Bhan Singh (Ex.PW42/E) from page 1 to 9 were taken in his presence.
75. During cross-examination conducted by A-3 Mohd. Nauman, he deposed that A-3 Mohd. Nauman had pointed out towards the Hotel as well as the premises of M/s Swarn Stamps Works during the raids/ visits. During cross-examination by A-2 Nipun Bansal, he deposed that the documents were seized from the drawers and almirahs of the office, which was a small one but he could not pin point which document was recovered from which place exactly. He denied that none of the documents that are listed in the seizure memo was seized from the spot. He denied that no raid or seizure was conducted at the premises of M/s BTC on 08.04.2009 in his presence.
76. PW-43 Sudhir Kumar, deposed that in April 2009, he was posted and functioning as Senior Manager in PNB, Rani Bagh Branch, New Delhi and regarding production cum seizure memo (Ex.PW43/A), certain documents were handed over to CBI. He proved cash receipt voucher (Ex.PW43/B1) for a sum of Rs.10,000/- in respect of a new account that was opened in the name CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 59 of 263 :: 60 ::
of M/s AH&S on 15.01.2009. He further deposed that letter of thanks (Ex.PW43/B2) was sent to the new account holder by the Bank for under certification in an envelope (Ex.PW43/B3) by courier receipt (Ex.PW43/B4) which was received back unserved with the remarks "person shifted"; another letter of thanks (Ex.PW43/B5) sent in an envelope (Ex.PW43/B6) by courier receipt (Ex.PW43/B7) which was received back unserved with the remarks "address wrong". He deposed regarding handing over the Account Opening form (Ex.PW43/B8); Customer Master Form (Ex.PW43/B9) containing the photograph of the Account holder to the CBI; photocopy of rent agreement as well as copy of DL and PAN Card (Ex. PW43/B10 to Ex.PW43/B12) submitted by the Account holder; nomination form (Ex.PW43/B13); service report (Ex.PW43/B14) for not providing CCTV footage of 15.01.2009 on which the account was opened but the same could not be provided due to some technical problem with the hard disk. He was not cross- examined by the accused persons.
77. PW-44 Pramod Kumar Gupta, posted as Deputy Manager in PNB, Zonal Office, Ashok Marg, Lucknow, UP in April, 2009 deposed that he joined the investigation along with his colleague Sh. Y.P. Singh with the CBI team for conducting search at the premises of A-5 Ganesh Lal. He further deposed that certain material as CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 60 of 263 :: 61 ::
reflected in search list (Ex.PW44/A) was seized from the premises of Ganesh Lal in his presence. He deposed that during the search operation, A-5 Ganesh Lal who used to run the printing business, was present. He deposed that blank Cheque Book (Ex.PW12/C) of PNB containing 53 cheques; several blank cheuqes in respect of cheques in respect of Account No. 240800, twenty three in numbers (Ex.PW44/C1 to Ex.PW44/C23) with TSP series; scanned cheque dated 23.01.2009 TSP Series payable to Krishan Kumar Tewari in the sum of Rs.1 lakh (Ex. PW44/D); another bunch of 15 blank cheques (Ex.PW44/E1 to Ex.PW44/E15) of PNB TSP series; two envelopes of AD Wings Advertising and Marketing with two stamp impressions of M/s BCC and visiting card of Amit Aggarwal (Ex.PW44/F1 to Ex.PW44/F3); scanned of Multi City Cheque of TSP Series dated 31.12.2008 issued in favour of Anoop Kumar by PNB, Lal Bagh, Lucknow and photocopy of Multi City Cheque for Rs.5,94,386/- dated 31.12.2008 issued in favour of PNB Lal Bagh, Lucknow by DDO, UPSRTC (Ex.PW44/G); used rubber stamps (Ex.P1 to Ex.P5) without wooden handle and specimen impression of the seals taken vide memo (Ex.PW44/H1 and Ex.PW44/H2); cabinet of CPU of the computer besides HP lazerjet Printer and another HP Deskjet Printer [Ex.P-X1 (colly)] were recovered. He deposed that the entire materials were sealed at the spot by the CBI by putting its seal (Ex.PX2) which was given to him. During cross-CC No. 131/2019
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examination conducted by Ld. Amicus Curiae for A-5 Ganesh Lal and A-3 Mohd. Nauman, he deposed that he did not remember from where the documents reflected in the seizure memo were recovered by the CBI officials and same were recovered from one place or from different things in the same building. He denied that no blank cheques and rubber stamps were recovered.
78. PW-45 Kamal Kant Gupta, deposed that he was posted in J&K Bank, Vasant Vihar Branch, New Delhi in April 2009 and vide production cum seizure memo (Ex.PW45/A), certain documents were handed over by him to the CBI. He deposed that as per the Account Opening form (Ex.PW45/B1), the Bank Account of M/s EC was opened on 18.10.2006 and rent deed, photocopy of PAN card (Ex.PW45/B2 to Ex.PW45/B4) were attached. He proved attested copy of the Statement of Account (Ex.PW45/B5); clearing report in respect of cheque No. 512796 for sum of Rs.40.53 lakhs (Ex.PW14/A); cheque returning memo (Ex.PW45/B6); clearing report bearing his initials in proof of attestation (Ex.PW45/B7) and original pay-in-slip in respect of cheque (Ex.PW45/B8) for Rs.40.53 lakhs. He was not cross-examined by accused persons.
79. PW-46 Inspector Anupam Mathur, CBI, New Delhi deposed that during investigation of the present case, respectively, he along CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 62 of 263 :: 63 ::
with CBI team and independent witness, namely, namely, Sukhbir Singh and Tikka Ram had visited the shop of stamp vendor at Jhandewalan, New Delhi, along with A-3 Mohd. Nauman on 23.04.2009 and A-4 Amit Aggarwal on 24.04.2009, who led the CBI team to M/s. Swaran Stamps Works, E-4/5, near PNB Jhandewalan, Delhi and pointed towards the said shop. A-3 Mohd. Nauman and A- 4 Amit Aggarwal disclosed vide their respective disclosure statements (Ex.PW42/B) and (Ex.PW42/DX) that they had come to that shop in the last week of December, 2008 and first week of January 2009 and got prepared rubber stamps of M/s BCC and M/s.
SIFCL from the said shop. A-3 Mohd. Nauman further disclosed that at the time of preparation of stamps, owner Mr. Bhagat Singh was present at that time and he stated that he had not maintained any record of the specimen of the stamps provided by him to the customers. During cross-examination conducted by A-4 Amit Aggarwal, PW-46 disclosed about the proceedings conducted there. He was not cross-examined by remaining accused persons.
80. PW-47 P.V. Vijaya Shankar, Deputy GEQD (MHA), CF II, Hyderabad, AP, deposed that the documents of this case were received in the laboratory from S.P., CBI/EOU-II/ND vide his forwarding letter dated 23.07.2009 along with annexures 1 to 5, which was marked as Ex.PW47/A. The endorsement of Shri CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 63 of 263 :: 64 ::
Mahender Singh, GEQD is marked at point-A in regard to checking of the documents and after checking, case was allotted to me for examination of documents and opinion. After careful and thorough scientific examination and analysis of the documents Mark Q-1 to Q-48, Q-8A and Q-14-A, as well as specimen writings Mark S-1 to S-24; S-25 to S-87, S-64A, S-88 S-148, S105A; S149 to S-157; S- 158 to S-178; S-179 to S-198 of A-2 Nipun Bansal, A-3 Mohd.
Nauman, A-4 Amit Aggarwal, A-1 Mukesh Jain, A-6 Chandra Bhan Singh and A-5 Ganesh Lal, respectively, PW-47 came to the opinion dated 30.09.2009 (Ex.PW47/B) that the person who wrote the blue enclosed writings stamped and marked S-158 to S-163 and S-171 to S-173 of A-6 Chandra Bhan Singh also wrote the red enclosed writings similarly stamped and marked Q-22 and Q-23 on (Ex.PW13/10). He further deposed that the person who wrote the blue enclosed writings stamped and marked S-96 to S-101 of A-4 Amit Aggarwal also wrote the red enclosed writings similarly stamped and marked Q-42 and Q-43 on (Ex.PW3/E). He deposed that the documents so examined by him were also examined independently by Sh. Y. Surya Prasad, the Deputy GEQD and he also reached at the same conclusion that were arrived at by him and in his opinion. He has given specific view regarding the person concerned. He identified the signatures of Sh. Y. Surya Prasad on Ex.PW47/B as he had worked with him and was well conversant CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 64 of 263 :: 65 ::
with the handwriting and signatures of Sh. Y. Surya Prasad. He deposed that he had also expressed his detailed reasoning [Ex.PW47/C] (running into three pages) in support of opinion Ex.PW47/B. He deposed that the opinion was forwarded along with documents, opinion and reasoning to SP, CBI, EOU-II, ND vide letter dated 21.10.2009 (Ex.PW47/D) signed by Sh. Y. Surya Prasad. PW 47 was not cross-examined by accused persons.
81. PW-48 Ajay Kumar Gupta deposed that he had been working as Commission Agent at Naya Bazar, Delhi for last 20-22 years in the name of M/s Kumar Traders. He deposed that Mohd. Yusuf worked with him as Driver for about two years and left services three years ago. He deposed that for opening a Current A/c in his name in PNB, Rani Bagh, Mohd. Yusuf had taken Rs.10,000/- in cash from him about three years ago. He identified photograph of Mohd. Yusuf on Account Opening Form (Ex.PW43/B9). He deposed that he knew Ravikant Singh, employee of HDFC Bank, Kashmiri Gate, Delhi as he was having Account in the said Bank and he used to visit there. He deposed that Ravikant Singh told him that he would give him cheque for tax purpose and he was to give him bill and in lieu of that, he would get 1% commission. He deposed that after cheque was to be cleared, he had to withdraw the cash to the tune of cheque amount and to give to Ravikant Singh. He CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 65 of 263 :: 66 ::
deposed that Ravikant Singh deposited a cheque of Rs.65 lakhs in the Bank Account of Mohd. Yusuf in his presence and Nipun Bansal was also with Ravikant Singh at that time. PW-48 identified A-2 Nipun Bansal in the Court. He deposed that after the cheque was deposited, the Manager told them that the signatures on the cheque of Rs.65 Lakhs did not tally and they would not clear the cheque. He further deposed that thereafter, arguments between him, Ravikant Singh and Nipun Bansal ensued and he told both Ravikant Singh and A-2 Nipun Bansal not to come again to him and he went back to his office.
82. During cross-examination conducted by A-2 Nipun Bansal, he denied that he was part and parcel of the conspiracy for commission of fraud of Rs.65 lakhs by Ravikant Singh or was in the knowledge of all the facts before giving him the bill. He further deposed that Ravikant Singh had not given him the cheque of Rs.65 lakhs and that Ravikant Singh along with A-2 Nipun Bansal had gone to PNB, Rani Bagh where cheque of Rs.65 lakhs was deposited in the account of Md. Yusuf in his presence. He further deposed that initially Ravikant Singh had asked him for getting the cheque of Rs.65 lakhs cleared and later, he accompanied him and A-2 Nipun Bansal for deposit of said cheque in Bank. He admitted that he told Ravikant Singh that a current account in the name of his driver Md.
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Yusuf was in PNB Rani Bagh. He further deposed that since Ravikant Singh had brought the cheque of Rs.65 lakhs drawn in favour of M/s AH&S, so it was deposited in the account of said firm, opened by Md. Yusuf and it could not be got deposited in his account as it was not drawn in his favour. He denied that he had hatched a conspiracy with Ravikant Singh and Md. Yusuf and pursuant thereto, had got deposited cheque of Rs.65 lakhs in favour of M/s AH&S in the account in name of said firm opened by Md. Yusuf. He denied that there was no person, namely, Md. Yusuf or else, he would have taken his identity proof, residence proof, driving license to establish his identity or that he had opened the current account in the name of M/s AH&S through a fictitious person Md. Yusuf. He deposed that Ravikant Singh and Md. Yusuf both were together in the Bank and he did not know who amongst them deposited the cheque of Rs.65 lakhs in the Bank. He denied that hehad falsely named Nipun Bansal in his statement or that he himself had hatched the conspiracy for committing the fraud. PW-48 was not cross-examined by remaining accused persons.
83. PW-49 Inspector Bodhraj Hans deposed that on 24.04.2009, he was posted at EOW-1 and Investigating Officer Sh. C.S. Prakash Narayan authorised him under Section 165 Cr.P.C. to conduct search in residential as well as office premises of A-5 Ganesh Lal in Indira Nagar, Lucknow. PW-49 arranged two independent witnesses. He CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 67 of 263 :: 68 ::
identified A-5 Ganesh Lal in the Court. He deposed that after observing all the legal formalities, he searched the residence at ground floor as well as office premises of A-5 Ganesh Lal at first floor. He deposed that from the office of the A-5 Ganesh Lal, they had seized cheques (Ex.PW44/C1 to Ex.PW44/C23, Ex.PW44/E1 to Ex.PW44/E15) issued vide Cheque Book {Ex.PW12/L (colly)}, rubber stamps (Ex.P1 to Ex.P5), computer, printer/scanner etc. along with other documents (Ex. PW44/F1, Ex.PW44/F2, Ex.PW44/F3, Ex.PW44/G1, Ex.PW44/G2, Ex.PW44/H1, Ex.PW44/H2) and for that a detailed search list {Ex.PW49/A (colly)} was prepared on his dictation by SI J. B. Lakra. He further deposed that on 06.04.09, he went to Bank of Baroda, Hauz Khas Branch and received letter {D19 & Ex.PW20/D} and the documents mentioned therein, from Branch Manager addressed to him. He also deposed that vide seizure memo dated 08.04.2009 (Ex.PW49/B), he seized two cheques and two pay-in-slips described in para 5 therein.
During his cross-examination conducted on behalf of A-3 Mohd. Nauman and A-4 Amit Aggarwal, he stated that they had gone to search the premises of A-5 Ganesh Lal on date 24th in 2009 but he did not remember the exact month, from where they seized Seals, Cheque Book and the cheques lying in the drawer in office of Ganesh Lal. He was not cross-examined by other accused persons.
84. PW-50 Inspector S.L. Garg deposed that on 08.04.2009. IO CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 68 of 263 :: 69 ::
gave him search warrants under Section 164 Cr.P.C. and he along with Inspector Virender Singh, CBI Staff and independent witness went to shop of A-2 Nipun Bansal and recovered the documents as mentioned in list i.e. (Ex.PW42/A) and same were handed over to IO. He identified A-2 Nipun Bansal in the Court. During cross- examination conducted by A-2 Nipun Bansal, PW-50 denied that during the search period, he had sent A-2 Nipun Bansal outside four times for 5 to 10 minutes each deliberately so as to plant the papers not pertaining to A-2 Nipun Bansal to falsely implicate him. It was denied that photocopies of documents of HSBC Bank were planted upon A-2 Nipun Bansal and his signatures were taken fraudulently to falsely implicate him. He was not cross-examined by remaining accused.
85. PW-51 Arun Oberoi Vice President of HSBC, Service Delivery, North India identified a letter dated 06.04.2009 addressed to IO having signature of Mr. N.K. Joshi. He proved regarding Statement of Account of M/s AIPL of Account No. 094-283629-001 (Mark P-51/1) for the period from 01.02.09 onwards. He also proved letter dated 29.04.2009 (Ex.PW37/A) and the documents detailed sent to CBI. He also proved documents (Ex.PW8/A, Ex.PW37/C1) sent to CBI. He also proved letter dated 17.04.09 (Ex.PW37/B) and the documents detailed sent to CBI and the documents sent (Ex.PW37/B1 and Ex.PW37/B2). He was not CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 69 of 263 :: 70 ::
cross-examined by accused persons.
86. PW-52 Sourav Baruah - who is son-in-law of A-7 S.K. Bhargava, deposed that his father-in-law S.K. Bhargava used to travel in 3-4 cars and he was using one car at a time and the same was driven by his driver since he was not knowing driving. He further deposed that at the time of his marriage in 2001, his father- in-law was using vehicle Fiat perhaps make Uno, thereafter, he started using another make of Fiat car. Perhaps it might be Sieana and, thereafter, his father-in-law started using Ford Ikon car. He further deposed that thereafter, his father-in-law started using Honda City car and he was not using vehicle Skoda car. He further deposed that whatever cars was being used by his father-in-law, were in his name and were purchased by him from the company showroom as new cars. He further deposed that when the case of CBI was registered, his father-in-law was using Brown color car. PW-52 was declared hostile as he resiled from his previous statement and he was cross-examined by Ld. PP for CBI. During cross-examination conducted by Ld. PP for CBI, he deposed that he could not admit or deny whether his father-in-law S.K. Bhargava was having Skoda car of white color having registration number RJ14-C-7007 or he was using it for about 12-14 months prior to registration of CBI case and he had not told the said fact to IO of CBI in his statement.
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87. During cross-examination conducted by A-1 Mukesh Jain, PW-52 deposed that his father-in-law was Chartered Accountant but not actively practicing it since his marriage. He was not cross- examined by remaining accused.
88. PW-53 Shiv Dutt Tyagi deposed that he is a landlord who let out front portion of his building to PNB since 2008. He identified application form for opening of saving account (Ex.PW53/A) in PNB, Morta Branch and identified photograph of A-10 Rajeev @ Raje affixed on the said form who came to him when PW-53 was standing outside PNB, Morta Branch and requested him to become introducer for account opening. He further deposed that after seeing Voter Identity Card of the said person, he appended his signatures as introducer because the said person i.e. Shahid who told him that he was native of Village Dhuhai situated at one kilometer away from his place. He further deposed that he had not gone inside the Bank with A-10 Rajeev @ Raje. During cross-examination by A-1Mukesh Jain he deposed that he had seen original Voter Identity Card of the said person who had come to him. During cross-examination conducted by A-10 Raje @ Rajeev, he deposed that when he had signed the form as introducer, the form was filled and only the number of Account was filled later. He denied that since number of his Account was previously written on the form, so he had signed it. He deposed that before apprehension of A-10 Raje @ Rajeev, he had CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 71 of 263 :: 72 ::
signed as introducer for opening of several persons in the Bank in his tenanted premises but since the day of apprehension of accused, he stopped introducing even known persons for opening account in the Bank. He denied that he was not knowing him earlier and he had identified the A-10 Raje @ Rajeev in the Court, simply after having seen his photograph on the Account Opening form.
89. PW-54 Beg Chand, Deputy Manager at Morta Branch of PNB at Ghaziabad, identified signature of Sh. P.K. Vij, the then Manager on letter dated 08.04.2009 (Ex.PW54/A) through which account opening form (Ex.PW53/A) of Shahid, Statement of Account of said account and original letter of request for issuing a Cheque Book were submitted to CBI. He identified attestation of their Bank containing stamp of their Bank on Election Identity Card (Ex.PW54/B) of Shahid; Form 61 (Ex.PW54/C) signed by Shahid in his presence; Statement of Account No. 4788000100009481 (Ex.PW54/D); application for issuance of Cheque Book (Ex.PW54/E) bearing signature of Shahid. Accused Rajeev @ Raje was identified by PW 54 in the Court as Shahid. He deposed that he did not have any knowledge that original name of Shahid was A-10 Rajeev @ Raje at the time of opening of account. During cross- examination by accused A-10 Raje @ Rajeev wherein he deposed that Morta Branch was computerized and CCTV was installed in their Branch. He deposed that on 03.03.2009, Shahid came to me CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 72 of 263 :: 73 ::
alone with signature of introduce on the Account Opening form and since introducer was our landlord sitting outside, they got the factum of verifying the said form later on. He further deposed that no transaction opening of the account was done in the said account of Shahid. He volunteered to state that account was opened with Rs.1,000/- which was the sole transaction in the said account.
90. PW-55 Daya Swaroop who deposed that his father as well as he remained as Numbardaar of Village Duhai and he used to meet villagers frequently. After seeing (Ex.PW53/A) i.e. Account Opening Form of A-10 Rajeev @ Raje, deposed that the person whose photograph was affixed on Ex.PW53/A was neither a native of Village Duhai. He deposed that there was no house with No. 436 in their Village as well as no person namely, Shahid Ali or in name of his father, namely, Rashid Ali was resident of their Village. After seeing the accused persons present in the Court, he deposed that none of them was native of their Village. PW 55 was cross- examined by accused except A-10 Rajeev @ Raje wherein he deposed that the population of their Village is in between 7000 to 8000 and there are only 14/15 houses of Muslims in their Village. He knew most of his co-villagers and houses of Muslims residing nearby his house.
91. PW-56 Satish Chandra Shukla, SDM Bighapur, District CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 73 of 263 :: 74 ::
Unnao, UP after seeing document D-133 deposed that it was a letter dated 29.06.2010 (Ex.PW56/A) vide which he had provided the information contained therein in respect of Election Identity Card in terms of their office records in Tehsil Sadar, Ghaziabad, District Ghaziabad, UP. He deposed that as per office records, Voter Identity Card No. UWT6050355 in name of Shahid S/o Sh. Rashid Ali of village Duhai, was not issued from their Office. He further deposed that even in District Ghaziabad, series (UWT6050355) of Identity Card as mentioned in Ex.PW54/B i.e. series of UWT was never used and rather it is NDN continued with the number thereafter. During cross-examination conducted by accused Raje @ Rajeev, he deposed that he had stated about series of UWT not used in Ghaziabad on basis of his memory and he had not brought any document to show that. He deposed that when matter was inquired from him by the CBI, he had also checked the entire voter list of Duhai village but he did not find name of Shahid in that voter list.
92. PW-57 Pradeep Kapil, deposed that for last 8-9 years, he was doing the work of Tax Consultant at 942, 1st Floor, Nehru Road, Arjun Nagar, Kotla Mubarakpur, New Delhi-110003. He deposed that in June 2006, A-7 S.K. Bhargava came to his office for getting filled up Income Tax Return of himself and his family. Initially, A-7 S.K. Bhargava told him that he was Chartered Accountant, doing share trading and property consultant having office at 1st Floor CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 74 of 263 :: 75 ::
above Bikanerwala, Chowk, namely, Gurdwara Chowk in Karol Bagh, New Delhi. PW-57 further deposed that after six-seven months, A-7 S.K. Bhargava told him that he intended to shift his office as he was facing difficulty in commuting to Karol Bagh as he was residing somewhere in Jaipur. PW-57 further deposed that on request of accused A-7 S.K. Bhargava, he agreed to give table space and his address for said purposes to him, which was used by him from May/ June, 2007 till February 2009. PW*57 further deposed that on his address, A-7 S.K. Bhargava opened the company in the name of M/s Emmthree Financial Services Private Limited and also got printed his visiting cards and had done business of share trading. After February 2009, A-7 S.K. Bhargava suddenly discontinued coming to the office at his place and disappeared and even his telephone calls stopped coming. PW-57 further deposed that once, he had gone to main road to give some papers to accused A-7 S.K. Bhargava, which he kept in a Silver Grey colored big car, whose make and number he did not remember and he had a driver Rahul for him. PW-57 further deposed that CBI Officials had come to his office, inquired from him about accused A-7 S.K. Bhargava; searched his premises and also took various documents from there from the drawer of the table of accused A-7 S.K. Bhargava which were seized vide a memo (Mark P-57/1) which he produced during his examination. His statement was recorded by CBI in its office CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 75 of 263 :: 76 ::
later on where he was shown the documents i.e. (1) Account Statement of account no. 54505040517; (2) two Credit Card statement of Standard Chartered Bank in name of accused Shiv Kumar, retrieved by the CBI officials from the table of the accused A-7 S.K. Bhargava, which were attested by him in the office of CBI. During the examination of PW-57, accused A-7 S.K. Bhargava was absent and his identity was not disputed.
93. PW-57 was cross-examined by A-1 wherein, he deposed that he was not Chartered Accountant. He used to take guidance from A- 7 S.K. Bhargava since he was more qualified him. He deposed that during his conversation with A-7 S.K. Bhargava, he came to know that A-7 S.K. Bhargava was dealing in property and share trading. During cross-examination conducted by A-7 A-7 S.K. Bhargava, PW-57 deposed that A-7 S.K. Bhargava had only consulted him but he had not filed his ITRs. He had friendly relation with A-7 S.K. Bhargava. He deposed that after CBI Officials visited his premises, he had not met with A-7 S.K. Bhargava.
94. PW-58 Adhiraj Kumar, deposed that A-1 Mukesh Jain is his distant cousin and grandson of brother of his grandfather. He deposed that in 2009, he tried to establish garment business under the name and style of M/s Saint Grandeur with the help of A-1 Mukesh Jain under his guidance but could not do so. He also opened CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 76 of 263 :: 77 ::
Current Account in the name of M/s Saint Grandeur in HSBC Bank, Barakhamba Road Branch, New Delhi vide Account Opening Form i.e. D-42 (Ex.PW37/B1). He deposed that in between January, 2009 to August, 2009, he used to obtain garments in lots from various sources and used to sell them in Meerut in small shops. PW 58 deposed that in between January, 2009 to August, 2009, A-1 Mukesh Jain told him that he had received a big order of garments and he could get him a sub-contract to the tune of Rs.12 lakhs from the contractor, namely, Pramod, with whom he was placing the order but PW-58 showed his inability to complete the order due to financial crunch. However, A-1 Mukesh Jain got PW-58 a cheque of Rs.10 lakhs from Pramod. Pramod had given cheque of Rs.10 lakhs dated 02.04.2009 (Ex.PW8/J10) of HSBC Branch, G.K. Branch, in his presence to A-1 Mukesh Jain who in turn had given to PW-58.
95. PW-59 Shashi Kant Mishra was posted as Chief Manager, Zonal Office, PNB, Ashok Marg, Lucknow, U.P. in 2009. He deposed that he was the Administrative Officer of Lucknow Circle of PNB and he was also the disciplinary authority of clerical cadre of employees of Lucknow Circle of PNB. He deposed that the Chief Manager Lal Bagh Branch of PNB, Lucknow, namely, Shri Tripathi reported to his office about fraud in one of the accounts at Lal Bagh and Mr. Tripathi had placed before his the documents including entire narrative of the incident, fraud reportedly happened at his CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 77 of 263 :: 78 ::
Branch. He also deposed that request of CBI was also received in his office for according sanction of prosecution of A-6 Chandra Bhan Singh, Clerk- cum-Cashier in PNB Lal Bagh Branch, Lucknow. He deposed that based on the material and documents produced before him ; request of the CBI and as per the guidelines of the Bank, he applied his mind and accorded the sanction (Ex.PW59/A) to prosecute A-6 Chandra Bhan Singh. During cross- examination by A-6 Chandra Bhan Singh, he deposed that role of A- 6 Chandra Bhan Singh about the stated cheque of Rs.65 lakhs is mentioned in his sanction order. He admitted that Cheque Books in the Bank were kept in the joint custody of atleast two Officers and overnight custody of Cheque Books could not be with any official of rank of Clerk but during day time Cheque Books could be in custody of official of rank of Clerk also. He admitted that the maintenance of records of vouchers is jointly with Daftari and Manager, as per rules.
96. PW-60 C.S. Prakash Narayanan, Enforcement Officer, Enforcement Directorate, deposed that he had been working as Inspector in CBI, Economic Offences Unit (EOU), New Delhi on deputation w.e.f. October 2004 to November 2009. On 06.04.2009, he was assigned the FIR (Ex.PW60/A) bearing RC No. 071 2009 (E) 0003 signed by then SP Shri Ravi Kant, for investigation. He CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 78 of 263 :: 79 ::
deposed that during the course of investigation of the allegations in FIR, he had collected various documents from different Banks and authorities vide different seizure memos with the assistance of Inspector S.L. Garg, Inspector Bodh Raj Hans, Inspector Ajit Singh, Inspector Satender Singh, Inspector Virender Singh and Inspector B.M. Pandit. He deposed that vide (Ex.PW17/A) and (Ex.PW60/B) i.e. seizure Memos dated 09.04.2009, certain documents relating to account of M/s SGC from PNB, Daryaganj Branch and Karol Bagh Branch, New Delhi were seized. He further deposed that vide above seizure memo, (cheque MarkP-60/1) and (related credit voucher MarkP-60/2) respectively, were received. He further deposed that vide i.e. seizure Memo dated 08.06.2009 (Ex.PW30/F), certain documents, relating to the account of M/s. BMPL from BoB, Hauz Khas Branch, New Delhi were received. He deposed that vide seizure memo dated 01.06.2009 (Ex.PW60/C), certain documents, relating to the account of M/s. AIPL from HDFC Bank Ltd. G.K.-1 Branch, New Delhi were received. He deposed that vide i.e. Seizure Memo dated 29.05.2009 (Ex.PW37/A), certain documents, relating to the account of M/s. Saint Granduer and cheque of M/s AIPL from HSBC, Barakhamba Road Branch, New Delhi were received. He further deposed that vide i.e. seizure Memo dated 29.04.2009 (Ex.PW60/D), certain documents {Ex.PW5/A (Ex.PW12/A)} relating to the account of M/s SIFCL from PNB, Lal Bagh Branch, CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 79 of 263 :: 80 ::
Lucknow, U.P. were received. He further deposed that vide D-56 i.e. Seizure Memo dated 18.05.2009 (Ex.PW16/A), original blank cheque, relating to the account of M/s BCC were received. He deposed that vide production-cum-seizure memo dated 01.06.2009 (Ex. PW 60/E), certain documents (Ex.PW24/A, Ex.PW24/B, Ex.PW24/C, Ex.PW24/G, Ex.PW24/I and Ex.PW24/L, Ex.PW24/J and Ex.PW24/K, Ex.PW24/H), respectively relating to the accounts of M/s BTC, M/s. Shree Radha Enterprises, M/s. Rahul Kumar Rohit Kumar and M/s. Mohan Lal Shankar Lal from HDFC Bank Ltd., Kashmere Gate Branch, Delhi were received. He deposed that vide production-cum-seizure memo dated 13.04.2009 (Ex.PW60/F), cheque and pay-in-slip relating to the account of M/s BCC were received from PNB, Gokhle Market Branch, Delhi. He further deposed that vide seizure memo dated 09.04.2009 (Ex.PW43/A), certain documents, relating to the account of M/s AH&S were received from PNB, Rani Bagh Branch. He further deposed that vide production-cum-seizure memo dated 11.04.2009 (Ex.PW11/A), debit credit vouchers and system generated debit credit for transaction and CTS Scanning report relating to the account of M/s AH&S and M/s BCC were received from PNB, Gujrawala Town Branch, Delhi. He further deposed that vide production-cum-seizure memo dated 15.05.2009 (Ex.PW31/A), original cheques of M/s SIFCL, M/s UPSRTC and M/s P.K. CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 80 of 263 :: 81 ::
Enterprises were received from PNB, Lal Bagh Branch, Lucknow, U.P. He further deposed that vide Production-cum-seizure memo dated 09.04.2009 (Ex.PW45/A), certain documents relating to the account of M/s. EC were received from J&K Bank, Vasant Vihar, New Delhi. He further deposed that vide production-cum-seizure memo dated 04.06.2009 (Ex.PW18/A), pay-in-slip relating to the account of M/s LPO was received from BoB, City Back office, Parliament Street, New Delhi. He further deposed that vide production-cum-seizure memo dated 24.06.2009, original letter dated 30.03.2009 given by M/s AIPL to HDFC Bank, was received from HDFC Bank, GK-I Branch, New Delhi. He further deposed that during investigation, he had also received documents through various letters i.e. dated 17.04.2009 (Ex.PW37/B) dated 06.04.2009; (Ex.PW22/A) dated 23.04.2009; (Ex.PW22/C) dated 08.06.2009 ; (MarkP-60/3); letter dated 17.06.2009 (Ex.PW36/A);
letter dated 21.05.2009 (MarkP-60/4); letter dated 22.06.2009 (MarkP-60/5) ; letter dated 11.04.2009 (Ex. PW 24/D); letter dated 13.04.2009 (MarkP-60/6); letter dated 09.04.2009 (Ex.PW21/A); letter dated 29.04.2009 (Ex.PW37/C); letter dated 06.04.2009 (MarkP-51/1); letter dated 15.05.2009 (Ex.PW31/B); letter dated 22.06.2009 (MarkP-60/7); letter dated 22.06.2009 (MarkP-60/8).
97. PW-60 further deposed that he recorded disclosure statement CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 81 of 263 :: 82 ::
of A-3 Mohd. Nauman on 22.04.2009 (Ex.PW41/A) in the presence of two independent witnesses, namely, Sukhbir Singh and Tikka Ram and that on 23.04.2009, he recorded the disclosure statement of A-4 Amit Aggarwal (Ex.PW42/C) and pursuant to the aforesaid disclosure statements (Ex.PW41/A) of A-3 Mohd. Nauman and (Ex.PW42/C), no recovery was effected as recoveries were effected prior to recording of these disclosure statements. He further deposed that after filing of charge-sheet, he had sent the specimen signatures of the accused persons to GEQD Hyderabad for getting expert opinion on some of the documents seized from the Bank along with covering letter dated 23.07.2009 with annexures (Ex.PW47/A). He further deposed that he had also taken the specimen signatures / handwriting of A-4 Amit Aggarwal Ex.PW42/D in April, 2009 voluntarily in the course of his Police custody, in presence of independent witness Mr. Vohra. He further deposed that he had also taken specimen signatures/handwriting Ex.PW42/E of A-6 Chandra Bhan Singh in April 2009, voluntarily in the course of his police custody, in presence of independent witness Mr. Vohra. He further deposed that based upon the investigation, he had filed the charge- sheet along with sanction order in respect of public servant A-6 Chander Bhan Singh. After filing the charge-sheet he had conducted further investigation in this matter. Since, he was repatriated to his parent department of Enforcement Directorate in November 2009 on CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 82 of 263 :: 83 ::
completion of his tenure in CBI, he could not complete the further investigation of this case was handed over to Inspector Sh. Srirup Sarkar.
98. PW-60 was cross-examined at length. During cross- examination conducted by A-1 Mukesh Jain & Beenu Jain, he deposed that house as well as office of A-1 Mukesh Jain were searched and search and seizure memos were prepared but since nothing incriminating was recovered therefrom, hence, search and seizure memos were neither relied upon nor filed with charge-sheet. He further deposed that during investigation, he had procured the Call Detail Records (CDRs) of mobile phone numbers of A-4 Amit Aggarwal, A-6 Chandra Bhan Singh, A-7 S.K. Bhargava, A-3 Mohd. Nauman and since, he could not find any incriminating material in CDRs of mobile phone numbers of the said accused persons, he did not file these CDRs with the charge-sheet. PW 60 further deposed that he verified from A-1 Mukesh Jain and it was revealed to him that turnover of M/s BMPL for 2007-2008 was around Rs.5 Crores and Balance Sheet of M/s BMPL was given to him by A-1 Mukesh Jain.
99. During cross-examination conducted by A-3 Mohd. Nauman, A-5 Ganesh Lal and A-10 Raje @ Rajeev, PW-60 deposed that when CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 83 of 263 :: 84 ::
he received investigation, he did not receive names of suspects. He further deposed that before registration of this case, account holders of the Bank accounts in question from where cheques were attempted to be encashed, had not lodged any complaint. He did not freeze the Bank accounts of M/s BMPL, M/s AIPL, M/s Saint Grandeur and firm of A-2 Nipun Bansal. He deposed that as per investigation conducted by him, A-5 Ganesh Lal was maker of forged cheque. PW-60 admitted that on feeding the number of cheque in CTS of Bank, name and other particulars of account holder appear on the computer screen matching series of cheque book issued to such account holder. He deposed that it could not be unearthed in investigation, how the ill-gotten money obtained by used of forged cheques, was distributed amongst accused.
100. During cross-examination conducted by A-2 Nipun Bansal, he deposed that CDRs of mobile phone number used by A-2 Nipun Bansal but did not place the same with charge-sheet as relied document as it contained no incriminating facts regarding present case. He admitted that it was ascertained in the course of investigation that there were some transactions between M/s BCC and M/s BTC prior to lodging of the complaint in question by the Manager, PNB with CBI.
101. During cross-examination conducted by A-4 Amit Aggarwal, CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 84 of 263 :: 85 ::
he deposed that from house as well as office of A-4 Amit Aggarwal. Nothing incriminating was recovered therefrom. He further deposed that Bank accounts of A-4 Amit Aggarwal were not seized and money related to offences in question was recovered from or at instance of A-4 Amit Aggarwal from any of his places or Bank accounts. He deposed that no CCTV footage of PNB, Gujrawala Town was obtained in investigation. After checking the record, he deposed that he did not record statement of any official of PNB regarding presence of A-4 Amit Aggarwal at PNB Gujrawala Town on 16.01.2009 & 19.01.2009. He deposed that he had not conducted any inquiry in respect of PW Sobir Singh Rathi having met A-4 Amit Aggarwal in a Hotel at Railway Road, Ghaziabad and no document was collected with regard to aforesaid. PW-60 was specifically questioned showing any documents or evidence on record to substantiate allegations that 'Amit Aggarwal (A-4) was to secure blank cheques of Banks and arrange preparation of forged cheques purportedly issued in the different accounts having substantial credit balance', to which, he deposed that based on disclosure statements/admissions during his custodial interrogation, role of accused Chandra Bhan and A-5 Ganesh Lal came to be known and further during search at their premises, Cheque Book that went missing from PNB, Lucknow was seized along with other documents from A-5 Ganesh Lal showing attempted forgery on CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 85 of 263 :: 86 ::
cheques (D-53) and other specimen documents of signature (D-82) of account holders. He further deposed that based on admission of Amit Aggarwal (A-4), his presence in Hotel Nancy was established as detailed in Register (D-85). Similarly, presence of Amit Aggarwal (A-4) was established as detailed in Register (D-86) as entry/serial No. 9326 dated 17.11.2008 wherein the conspiracy was hatched along with versions of relevant witnesses.
102. During cross-examination conducted by A-9 Jamir Ahmad, PW-60 deposed that from house of A-9 Jamir Ahmad, nothing incriminating was recovered therefrom. He did not record any statement of accused A-9 Jamir Ahmad.
103. During cross-examination conducted by A-6 Chander Bhan Singh, he deposed that at relevant time, accused Chander Bhan Singh was working as Clerk-cum-Cashier in PNB, Lal Bagh Branch,Lucknow and at that time, he was posted at counter of 'May I Help You' in said Bank. He further deposed that concerned officers, namely, Sh. Deepak Dave, Hall Manager and Smt. Sadhana Srivastava, Officer of Lal Bagh Branch of PNB at Lucknow were having authority to hold the Cheque Books in their possession in the said Bank during the relevant period. He further deposed that the particular date when the Cheque Book went missing, was not ascertained during investigation but witnesses Smt. Sadhana CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 86 of 263 :: 87 ::
Srivastava and Sh. Deepak Dave had told about the period when it went missing and same was reported by them to their Manager Sh. R.C. Tripathi on 30.01.2009. However, he did not collect copy of such report. He deposed that neither from custody of accused Chandra Bhan nor at his instance, any incriminating document / article/ material was recovered or seized. He admitted that in pay-in- slip (Ex.PW13/B), the depositors signatures legible as "Ramesh" in Hindi were not marked nor were sought to be examined by handwriting expert for obtaining opinion about its author. He did not collect any record from the Bank as to from which time upto which time, A-6 Chandra Bhan Singh was on duty on 26.02.2009 or that he did not record statement of any Bank Official as to when A-6 Chandra Bhan Singh left his seat i.e place of duty on 26.02.2009. PW 60 admitted that the official deputed at counter of 'May I Help You', did neither have with him custody of any document nor he was custodian of any document of Bank. He deposed that he had not obtained any permission from any Court for obtaining writing or signatures of A-6 Chandra Bhan Singh.
104. PW-61 Virender Singh, Inspector of NIA deposed that on 24.04.2009, on directions of IO Sh. C.S.P. Narayanan, he had seized the documents from Service Branch of PNB at Lucknow, UP vide seizure memo (Ex.PW61/A). He deposed that vide Ex.PW61/A, he seized cheque of Rs.40 Lakhs (Ex.PW4/A). He further deposed that CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 87 of 263 :: 88 ::
on 24.04.2009, he had also seized original deposit slip (pay-in-slip) of HDFC Bank of 26.02.2009 of Rs.40 lakhs (Ex.PW13/B). PW 61 was cross-examined by A-1 Mukesh Jain, Mohd. Nauman, Ganesh Lal & A-8 Benu Jain, he denied that he did not go to Lucknow for seizure of the aforesaid documents and he had signed on the seizure memos on asking of IO. He was not cross-examined by remaining accused persons.
105. PW-62 Ajeet Singh deposed that under directions of his SP Sh. Bhupinder Kumar, he assisted the main Investigating Officer Inspector C.S. Prakash Narayanan in investigation in this case. On 06.04.2009, he seized some cheque and documents from BoB, Connaught Place, New Delhi vide production-cum-seizure memo (Ex.PW62/A). He deposed that cheque (Ex.PW3/B) and pay-in-slip and clearing schedule dated 21.03.2009 in two sheets were collected by him from the BoB as aforesaid. He further deposed that on 18.04.2009, he had taken A-3 Mohd. Nauman, in police custody, to Paharganj area where A-3 Mohd. Nauman took us to Hotel Nancy, Hotel Pallavi and Hotel Klick International in said area from where PW 2 had seized the documents. He deposed that (Ex.PW39/B);
(Ex.PW40/C) and (Ex.PW62/B) are the disclosure memos prepared by him at the aforesaid Hotels in token of the proceedings conducted there and seizure of the documents therefrom. He further deposed that on 23.04.2009, A-3 Mohd. Nauman in police custody, guided CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 88 of 263 :: 89 ::
him to Jhandewalan and M/s Swaran Stamp Works from where they made efforts to search the records of preparation of rubber stamps at the instance of A-3 Mohd. Nauman but they could not locate any record from there and the proceedings conducted there were recorded in disclosure memo (Ex.PW42/B). He further deposed that an independent witness called in the office by his SP, had accompanied him to said place and signatories to the aforesaid disclosures had signed on those documents in his presence at the time of their preparation at their respective places of proceeding and seizure. Signatures of A-3 Mohd. Nauman were also obtained on these documents. He identified A-3 Mohd. Nauman present in Court. PW-62 was not cross-examined by A-1 Mukesh Jain, A-2 Nipun Bansal, A-6 Chandra Bhan Singh, A-7 S.K. Bhargava, A-8 Smt. Benu Jain and A-9 Jamir Ahmad. During cross-examination conducted by A-3 Mohd. Nauman, A-4 Amit Aggarwal, A-5 Ganesh Lal and A-10 Raje @ Rajeev, PW-60 deposed that they went as a team to the Hotels at Paharganj, however, he did not remember name of other team members. He further deposed that no written direction was given by his SP and it was oral. He did not record disclosure statement of A-3 Mohd. Nauman; statement of any owner/ employee of M/s Swaran Stamp Works or of any Hotel or any employee of BoB.
106. PW-63 Sh. Kutubddin Ahmed Khan deposed that in 2006, he CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 89 of 263 :: 90 ::
was working as Driver with Sh. M.S. Saba, Director in M/s Limra Apparels India Limited having office at D-157, Hauzri Complex, Phase-II, Noida, UP. He further deposed that there was a concern namely, M/s M.R. Creation of Rizwan Khan, who used to work with M.S. Saba. He further deposed that about 4 or 5 years ago, the said M.S. Saba at around 10/ 11 am told him that near Delhi Gate one person namely, perhaps, Salim would meet him and would give him a cheque to be handed over to M.S. Saba. PW-63 reached Delhi Gate in Maruti 800 Car of Company along with one Javed Akhtar, System Manager of the computer of the company. He further deposed that near Delhi Gate, said person namely, perhaps Salim met them. PW-63 kept sitting in the car. Javed Akhtar alighted from the car and went near Salim waiting while standing there and obtained one cheque from him. Said cheque was in favour of M/s EC but PW-63 did not remember the amount of the cheque, the date of the cheque or who had issued the cheque. He further deposed that said Salim had either face burnt or had spots on face of burning or otherwise. PW-63 identified A-3 Mohd. Nauman in judicial custody in the Court and stated that the said person was the aforesaid Salim, from whom cheque was collected by Javed Akhtar as aforesaid. PW- 63 identified cheque D-107 bearing number 512796 dated
25.03.2009 of Rs. 40,53,000/- in favour of M/s EC drawn on PNB, Lal Bagh Lucknow bearing questioned writings Q-25, Q-27 and Q-
CC No. 131/2019CBI Vs. Mukesh Kumar Jain & Others. Page No. 90 of 263 :: 91 ::
28 as well (Ex.PW14/A). He identified D-103 i.e. original account opening form of CD account number 414 of M/s EC in J&K Bank Limited (Ex.PW45/B) and deposed that the photograph pasted there at portion encircled X is of aforesaid Md. Rizwan of M/s EC, which he identified as he had seen said Rizwan on numerous occasions. He further deposed that he accompanied Javed Akhtar to J&K Bank, Vasant Vihar after collecting the aforesaid cheque (Ex.PW14/A) from near Delhi Gate as aforesaid, on the same day. He further deposed that in the Bank, Javed Akhtar filled the form and deposited the said cheque there and from the Bank, they returned to their office at D-157, Hauzri Complex, Phase-II, Noida, UP.
107. During cross-examination conducted by A-1 Mukesh Jain and A-8 Smt. Benu Jain, there is nothing to suggest that he deposed falsely. PW-63 was not cross-examined by A-2 Nipun Bansal, A-4 Amit Aggarwal, A-6 Chandra Bhan Singh, A-7 S.K. Bhargava and A-9 Jamir Ahmad. During cross-examination conducted by A-3 Mohd. Nauman, A-5 Ganesh Lal and A-10 Raje @ Rajeev, PW-63 deposed that on the day when he went along with Javed Akhtar to collect cheque, M.S. Saba was not in Delhi and instructions were given on telephone by M.S. Saba to Javed Akhtar who told him about such instructions given by M.S. Saba. He admitted that M.S. Saba did not tell him personally or on phone anything about said Salim. PW-63 further deposed that while Javed Akhtar filled up the CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 91 of 263 :: 92 ::
form in the Bank, he was near by him in the Bank.
108. PW-64 Sh. Rizwanullah Khan deposed that in 2008 or 2007, he started doing work as Supervisor in Limra Limited in Noida and M.S. Saba was its owner, who got opened an account in J&K Bank, Vasant Vihar Branch in the name of M/s EC in his name and he was shown as Proprietor of M/s EC but said account was operated by said M.S. Saba and same was opened perhaps in 2007. He further deposed that at the end of 2008, he left the employment of M.S. Saba and went to Bihar at his native place and in 2009, he received a call on his mobile phone number from Manager of Vasant Vihar Branch of J&K Bank, who told him that a cheque was presented for deposit in the account of M/s EC. PW 64 told the said Manager of the Bank that he was having no knowledge of it and since M.S. Saba was operating said account, he must be knowing about it. He further deposed that two days later, he received call on his mobile phone number and M.S. Saba told him that he (M.S. Saba) had presented a cheque in J&K Bank, Vasant Vihar Branch which was not honored and a case was registered in the CBI and he had to come to the office of CBI. He further deposed that three or four days later to receiving of call from M.S. Saba, he came to Delhi and along with M.S. Saba went to CBI office where he was inquired. He told the CBI officials that account was opened in his name but it was operated by M.S. Saba. He identified original account opening form CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 92 of 263 :: 93 ::
of CD account No. 414 of M/s EC (Ex.PW45/B) and deposed that the photograph at portion encircled at X is of him and the signatures at portion encircled Y are of him as Proprietor / authorized signatory for EC and it was the same form by which the said account was opened in the said Bank. He deposed that he had no knowledge about original pay-in-slip dated 31.03.2009 in sum of Rs.40.53 lakhs (Ex.PW45/B8) and writing therein, is not of him and it was shown to him in CBI Office for first time. He deposed that he had not gone to J&K Bank, neither filled nor deposited the said pay slip there. He deposed that on 31.03.2009, he was in Bihar and not in Delhi. PW 64 was not cross-examined by A-1 Mukesh Jain, A-2 Nipun Bansal, A-4 Amit Aggarwal, A-5 Ganesh Lal, A-7 S.K. Bhargava, A-8 Benu Jain and A-9 Jamir Ahmad.
109. During cross-examination conducted by A-3 Mohd. Nauman, Chandra Bhan and Raje @ Rajeev, PW-64 deposed that he was paid Rs.6,000/- as monthly salary by M.S. Saba. Since the day when he left services of M.S. Saba, he had not talked with him regarding M/s EC opened in his name as Proprietor. After opening the Bank account aforesaid in the name of M/s EC in J&K Bank, he continued serving M.S. Saba for approximately four years before leaving employment there. He further deposed that before leaving service there, he had signed on few cheques of M/s EC and had given it to M.S. Saba. He further deposed that one or two filled up cheques CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 93 of 263 :: 94 ::
were signed by him and the remaining cheques signed by him were blank. He further deposed that in all, he might have signed three or four cheques, exactly he did not remember. He further deposed that he was not given any money in lieu of signing of those cheques. After leaving the employment of M.S. Saba, he was not having any service elsewhere in Delhi but went to his native place at Bihar.
110. PW-65 Srirup Sarkar, Inspector in CBI deposed that on 31.07.2009, he received further investigation of this case as per orders of his SP CBI. After receiving the part investigation, he had received GEQD opinion from Calcutta and from Hyderabad and submitted both the reports in the Court. He examined and recorded statements of PWs Sh Pramod Kumar Pandey; Sh Beg Chand, Deputy Manager, PNB, Mota Branch; Sh Shiv Dutt Tyagi; Sh Saurabh Baruah; Sh Pradeep Kapil; Sh Satish Chandra Shukla; Sh Daya Swaroop Tyagi and Sh Yashpal Singh. He deposed that he received document D-133 i.e., letter dated 29.06.2010 of Sh. Satish Chandra Shukla, Tehsildar, Ghaziabad during investigation. He further deposed that he had moved application (Ex.PW65/A) on 07.05.2010 for placing on record GEQD report etc. He had also filed his report on 03.07.2010 on conclusion of further investigation conducted by him. He was not cross-examined by accused persons.
111. PW-66 Sh. M. Krishna, Assistant Government Examiner in CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 94 of 263 :: 95 ::
CFSL Hyderabad having office at Ramanthapur, Hyderabad deposed that their laboratory received one laptop, two CPUs, two mobile phones, one copier cum printer and one printer on 18.08.2009 with letter of SP CBI, EOU II and III, New Delhi. He further deposed that besides the aforesaid articles received, one CPU and one printer were in sealed condition, while other articles were not sealed but their parcels had brown colour tape covered around them. He further deposed that he as well as Sh. Krishna Sastry Pendyala, AGEQD had examined the received exhibits separately and he was the main examiner. He further deposed that he along with Sh. Krishna Sastry Pendyala, AGEQD had jointly submitted their report dated 11.03.2010 with Annexures [Ex.PW66/A (colly)] to the SP CBI concerned. He was not cross-examined by accused persons.
112. After examining the aforesaid witnesses, on the statement of Ld. Public Prosecutor for the CBI, the prosecution evidence was closed.
STATEMENTS OF ACCUSED PERSONS
113. In his statement under Section 313 Cr. P.C., A-1 Mukesh Jain denied to have committed any offence but admitted that he was one of the Directors of M/s BMPL along with his wife A-8 Benu Jain and Ms. Radhika Mehra. He further admitted that amounts of Rs.55.06 lakhs and Rs.51.65 lakhs were credited in the Bank CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 95 of 263 :: 96 ::
account of M/s BMPL vide cheque Nos. TTT512799 dated 19.03.2009 and TTT512780 dated 18.03.2009 on 21.03.2009 & 23.03.2009 respectively. He stated that the aforesaid payments were received in pursuance to Purchase Order/ contract given by S.K. Bhargava being authorised representative of SIFCL, but the said Purchase Order/contract between M/s BMPL and SIFCL was got cancelled as informed by S.K. Bhargava and the said payment was returned. He further stated that the said contract was handed over to IO but same was not seized by him. He denied rest of evidence put to him and stated that this was a false case.
114. In her statement under Section 313 Cr.P.C., A-8 Benu Jain stated that she was innocent and she was falsely implicated in this case. She further stated she being a housewife, was only sleeping Director in M/s BMPL and was not looking after the day to day affairs of the said Company. She further stated that A-1 Mukesh Jain and Radhika Mehra were active Directors and they were looking after the day to day affairs of the Company. She stated that she told this fact to the CBI despite that they made her accused in this case for the reasons best known to them. She stated that CBI had not conducted fair and complete investigation in this case specially with regard to M/s BMPL and had not arrested the real culprits.
115. In his statement under Section 313 Cr. P.C., A-2 Nipun Bansal CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 96 of 263 :: 97 ::
stated he that he was innocent and had not committed any offence. He further stated that he was falsely implicated in this case by IO to save Ajay Kumar Gupta and Ravi Kant Singh. He admitted that he was Proprietor of M/s BTC and deposit slip (Ex.PW13/B in respect of cheque No. 786680 dated 23.02.2009 for amount of Rs.40 lakhs was processed on 26.02.2009 for crediting in the account of M/s BTC (Ex.PW4/A). He denied to have visited any Bank on behalf of M/s AHS for getting the amount transferred or related to this case. He stated that PW-2 had identified him on the instance of CBI to save one Mr. Ajay Kumar Gupta. He had stated that PW-11 Raj Kumar Jain, Hall Incharge of PNB, Gujrawala Town Branch, Delhi had not given him any cheque of Rs.65 lakhs. He denied the version of PW-16 Sh. Satender Nath Bajpayee that his firm M/s BCC was not having business dealings with M/s BTC. He denied rest of evidence put to him.
116. In his statement under Section 313 Cr.P.C., A-3 Mohd.
Nauman stated that he was innocent and was a victim of circumstances. He denied that on 24.04.2009, PW-4 Preet Pal Singh had identified him. He denied that PW-9 Deepak Sharma, Proprietor of M/s SGC had handed over Cheque Book to him. He stated that no raid was conducted by CBI in Hotels at Paharganj as stated by PW- 32 and memos in this regard, were prepared at CBI Office.
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117. In his statement under Section 313 Cr.P.C., A-4 Amit Aggarwal stated that he was innocent and he was falsely implicated in the present case by CBI for the reasons best known to them. He admitted that he visited Delhi in relation to his advertising business and during his stay in Hotel Nancy as well as Hotel Pallai Palace at Delhi. He stated that he might have signed the Guest Register during his stay in the said Hotels. He simply denied GEQD report (Ex.PW47/A) given by PW-47 P.V. Vijaya Shankar, Deputy GEQD showing matching of his specimen handwriting with handwriting on the cheque (Ex.PW3/E) dated 17.03.2009 for sum of Rs.1,58,70,000/- favouring M/s LPO,
118. In his statement under Section 313 Cr.P.C., A-5 Ganesh Lal stated that he was innocent and was falsely implicated to mislead the investigation so that the main culprit could be saved. He further stated that no one deposed against him and if at all, somebody had deposed against him, he did not know the motive for having deposed falsely against him. He admitted that his premises was searched by CBI on 24.04.2009 and he had nothing to say with regard to seized material and seizure memo. With regard to seizure of blank Cheque Book (Ex.PW12/C) of PNB containing 53 cheques and seizure of several blank cheques (Ex.PW44/C1 to Ex.PW44/C23) i.e. 23 in numbers with TSP series, in respect of Account No. 240800, he stated that he was not aware of the contents CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 98 of 263 :: 99 ::
of the envelope which was seized. With regard to bunch of 15 blank cheques (Ex.PW44/E1 to Ex.PW44/E15) with TSP series of PNB bearing his signatures / initials ; with regard to Ex.PW44/G i.e. item No. 9, a scanned of Multi City Cheque of TSP series dated 31.12.2008 issued in favour of Anoop Kumar by PNB, Lal Bagh, Lucknow and item No. 10, photocopy of Multi City Cheque for Rs.5,94,386/- dated 31.12.2008 issued in favour of PNB Lal Bagh, Lucknow by DDO, UPSRTC, he stated that he had nothing to say.
He admitted that during search, CBI seized a cabinet of CPU of computer besides HP Lazerjet Printer, scanner and HP Deskjet Printer. With regard to remaining incriminating evidence, he stated either he did not know or had nothing to say or denied the contents.
119. In his statement under Section 313 Cr. P.C., A-6 Chander Bhan Singh stated that it was a false and fabricated case as he was innocent and was falsely implicated in this case in connivance with officials of PNB, Lal Bagh Branch, Lucknow. He admitted that while working as Clerk-cum-Cashier in the Bank, he used to be deputed on various duties on different counters in the Bank as per the exigencies of the work. He admitted that his specimen handwriting and signatures (Ex.PW42/E) were taken but stated that same were forcibly taken on blank papers. With regard to GEQD report (Ex.PW47/A) given by PW-47 P.V. Vijaya Shankar, Deputy GEQD showing matching of his specimen handwriting with CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 99 of 263 :: 100 ::
handwriting on the deposit slip (Ex.PW13/B) for depositing the cheque of Rs.40 lakhs in favour of M/s BTC, he stated that he did not know.
120. In his statement under Section 313 Cr.P.C., A-7 S.K. Bhargava stated that he was innocent and was falsely implicated in this case. He stated that he was owing and using only one car of white colour. He admitted that on address of PW-57, he opened the Company in the name of M/s Emmthree Financial Services Pvt. Ltd. He admitted that he used to visit the office of PW-57 once in a month or two months and whatever papers for him, used to receive at the office of PW-57, same used to be put in a drawer of the table to be given to him. He admitted that he used to park his car on main road outside the office of PW-57 as there was space crunch and once PW 57 had come to main road to give him some papers which he kept in his car, however, car was of white colour and he was having a driver, namely, Rahul. He admitted that he was called by the CBI for recording his statement where he was shown the documents [Ex.PW57/A (colly)] i.e. (1) Account Statement of Account no. 54505040517 and (2) two Credit Card statement of Standard Chartered Bank in name of accused Shiv Kumar, retrieved by the CBI officials from the table of the accused A-7 S.K. Bhargava, retrieved by the CBI officials from his table, however, he stated that seizure was not done in his presence. With regard to remaining CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 100 of 263 :: 101 ::
incriminating evidence, he stated that he does not know.
121. In his statement under Section 313 Cr.P.C., A-9 Jamir Ahmad stated that he was innocent and was falsely implicated in this case. He further stated that there was no evidence against him to connect with the present case. He admitted that PW-10 Sobir Singh Rathi purchased the property from his wife Ms. Samsheeda in Vijay Nagar, Ghaziabad. With regard to remaining incriminating evidence, he stated either he does not know or evidence are false or denied rest of the contents.
122. In his statement under Section 313 Cr. P.C., A-10 Raje @ Rajeev stated that it was a false case and he was innocent and was falsely implicated in this case. He denied that he knew accused A-9 Jamir Ahmad, however, he admitted that PW-38 Sh. Ikramuddin had arranged his marriage. He denied that he knew Shiv Dutt Tyagi and even went to him, requesting him to be an introducer for opening any Bank Account. He denied that he knew any Beg Chand and requested any such person to sign Bank Account opening form. He stated that he did not know why did Beg Chand recognize him as Shahid. He stated that somebody appeared to have malafide motive to implicate him in this case, however, he did not know why somebody should harbor any evil motive towards him.
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DEFENCE EVIDENCE
123. A-1 Mukesh Jain, A-2 Nipun Bansal, A-3 Mohd. Nauman, A- 4 Amit Agarwal, A-6 Chandra Bhan Singh opted to lead evidence in their defence. A-1 Mukesh Jain himself as DW-7, DW-1 Sunil Luthra, DW-2 Sunil Dutta on his behalf. A-2 Nipun Bansal examined DW-3, Shyam Sunder Khurana, DW-4 Pankaj Sinhmar, on his behalf while A-3 Mohd Nauman examined DW-5, ASI Ali Jaan on his behalf. After examining these witnesses, defence evidence was closed.
124. DW-1 Sunil Luthra deposed that he worked in M/s BMPL for about 8-9 months till 10.04.2009 and knew Mukesh Jain. He further deposed that he used to meet Sh. Pramod Pandey on behalf of the Company to show him samples of T-shirts. He further deposed that on 30.03.2009, when he went to the Bank, he found that Pramod Pandey was busy in withdrawal of money to the tune of about Rs.25 lakhs. He further deposed that he was then instructed to come to HSBC Bank, G.K-I and he went there on his bike and Pramod Pandey went in the car of A-7 S.K Bhargav along with A-7 A-7 S.K. Bhargava. The amount of Rs.25 lakhs withdrawn from HDFC Bank was given to A-7 S.K. Bhargava by Pramod Pandey. On coming to HSBC Bank, Pramod Pandey again withdrew Rs.25 lakhs and handed over the same to A-7 S.K. Bhargava. Thereafter, he had shown his samples to Pramod Pandey and after this, he came back to CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 102 of 263 :: 103 ::
his office and Pramod Pandey and A-7 S.K. Bhargava left together from the Bank. During cross-examination conducted by Ld. Senior PP for CBI, DW-1 deposed that he did not have any document to show his employment with M/s BMPL. He further testified that he neither made any statement before any authority nor gave any information about the facts disclosed in his examination-in-chief. He deposed that M/s BMPL was doing the business of garments. He further deposed that he did not see Pramod Pandey filling up any Bank slip for withdrawal of money. He did not see any cheque in the hands of Pramod Pandey or A-7 S.K. Bhargava. He deposed that no writing work was done in his presence for withdrawal of money at both the Bank Branches, mentioned above. He did not know as to whether the money was loan amount or anything else.
125. DW-2 Sunil Dutta deposed that he knew A-1 Mukesh Jain as he was the Director of M/s BMPL in which he (DW2) worked as Assistant Accountant from 2005 to 2009. He knew A-7 S.K. Bhargava since he used to visit their Company from time to time to meet A-1 Mukesh Jain. He further deposed that in March 2009, A-7 S.K. Bhargava came to their Company with an Order of Sahara India, Lucknow to the tune of Rs.1 Crore and he handed over some samples. He further deposed that after five-six days of the aforesaid Order, A-7 S.K. Bhargava again came to their Company and handed over photocopies of two cheques and deposed that cheques had been CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 103 of 263 :: 104 ::
deposited in the account of the said Company. He further deposed that in order to complete the said order, A-1 Mukesh Jain further handed over the order for completion to M/s AIL and paid an amount of Rs.60.61 lakhs through RTGS. He further deposed that A- 1 Mukesh Jain instructed Pramod Pandey of M/s AIL to further get the work of embroidery done from the Company Sand Grandeur. He further deposed that after about one week, A-7 S.K. Bhargava cancelled the said order of Sahara India and after cancellation, Pramod Pandey returned the money for sum of Rs.25 lakhs each on 30.03.2009 after withdrawing from HSBC and HDFC Bank and handed over same to A-7 S.K. Bhargava. He further deposed that he had counted the money himself before it was handed over to A-7 S.K. Bhargava. He further deposed that A-1 Mukesh Jain had returned money of Rs.15 lakhs after withdrawing it from BoB, Hauz Khas Branch and handed over the same to A-7 S.K. Bhargava on the same day. He further deposed that on 31.03.2009, A-1 Mukesh Jain withdrew Rs.5 lakhs from BoB, Hauz Khas Branch and handed the said amount to A-7 S.K. Bhargava. He further deposed that A-1 Mukesh Jain was arrested in this case and, thereafter, the Company was closed.
126. During cross-examination conducted by Ld. Senior PP for CBI, DW-2 deposed that he never dealt with any Company for sale of garments of M/s BMPL. He had never dealt with any Company CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 104 of 263 :: 105 ::
either for sale of garments of M/s BMPL or in respect of Sahara India. He further deposed that A-1 Mukesh Jain never used to talk to him regarding the order of any Company for sale of garments at first instance. He deposed that he had never seen any document of Sahara India in respect of order brought by A-7 S.K. Bhargava. He identified photograph of A-1 Mukesh Jain on Account Opening Form.
127. DW-3 Shyam Sunder Khurana, Officer Scale-I, PNB, Rani Bagh Branch, New Delhi produced the account statement of M/s AHS from 15.01.2009 (date of opening) to 10.05.2014 having Account No. 3072002100082111 which was opened vide Account Opening Form (Ex.PW43/B8) at their Branch. He also produced certificate under Banker's Book of Evidence. According to the record maintained at the Bank, the introducer is Ritika Agencies, Surender Mohan Talwar Account No. 3072008700001563. The aforesaid documents brought by the said witness were exhibited as Ex.DW3/A (colly). DW 3 was not cross-examined by the Prosecution.
128. DW-4 Pankaj Sinhmar, Senior Manager in Oriental Bank of Commerce, Naya Bazar, Delhi-110006 deposed that for the purpose of opening Current Account, photocopy of residence proof, copy of PAN number and address of the firm are required. He produced the CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 105 of 263 :: 106 ::
photocopy of Account Opening Form of M/s BTC along with necessary documents [Ex.PW4/A (colly)]. He deposed that statement of aforesaid Company for the period from 30.11.2008 to 06.04.2009, was issued by their Chief Manager along with certificate under Banker's Book Evidence and the same are collectively Ex.DW4/B (colly). He further deposed that as per Account Statement vide entry 06.03.2009, amount of Rs.25 lakhs had been transferred to Bajpai. After seeing the cheque dated 05.03.2009 of Rs.25 lakhs issued by Proprietor Nipun Bansal for BTC along with pay-in-slip [Ex.DW4/C (colly)] for depositing the amount in PNB. The amount of said cheque had been transferred to M/s BCC as the cheque number is given in the account statement.
He also produced computerized Account Statement of Account No. 0081131000923 (Ex.PW4/D) in the name of M/s BTC. During cross-examination conducted by the Prosecution, after seeing D-81 i.e. three deposit slips of their Bank through which amount mentioned therein had been transferred to M/s BTC vide clearing cheques [Ex.DW4/P1 (colly)].
129. DW-5 ASI Ali Jaan, VB Incharge, P.S. Chandani Mahal, Delhi produced Rojnamcha for 2009, containing entries dated 06.04.2009 and 07.04.2009 of P.S Chandani Mahal. He deposed that there was entry of CBI team dated 07.04.2009 vide entries No. 37 dated 07.04.2009, 41, 42 dated 07.04.2009 Photocopies of the same CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 106 of 263 :: 107 ::
are Ex.DW5/A (colly) (OSR). There was no other entry apart from the aforesaid entries in the register on 06.04.2009 and 07.04.2009. He was cross-examined by Ld. PP for CBI wherein, he deposed that he has no personal knowledge about the aforesaid entries.
130. DW-6 Keshav Pathak, Joint Manager, BoB, Hauz Khas, Delhi produced certified copy of Current Account Statement (Ex.DW6/A) of M/s BMPL for the period w.e.f. 13.04.2009 to 15.04.2009 available in the Bank system which had been certified by the Chief Manager Sh. Manoj Kumar. The original account opening form etc. and Account Statement for the period w.e.f. 02.09.2006 to 31.03.2009 was already supplied to CBI by their Bank. He deposed that neither he knew the subject matter of this case nor he could comment on the previous entries in the said account. He was not cross-examined by the Prosecution.
131. DW-7/ A-1 Mukesh Jain deposed that he had formed a company in 2001 under the name and style of M/s BMPL and in 2005, he started manufacturing unit for manufacturing garments at F-1, Jawahar Park, Khan Pur, Devli, New Delhi and had installed 100 Juki machines for the same. He used to receive orders from Sandy Stalk Mam from USA on regular basis and he used to manufacture and supply readymade garments to him. He also used to do the work of Nash Garments, USA and also local market job CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 107 of 263 :: 108 ::
works like Vikas Exports, Noida etc. He used to do the job of foreign exporters as detailed above, on Letter of Credit (LC) basis. He further deposed that he knew S.K. Bhargava (A-7) Chartered Accountant since October 2008 and he came into contact with A-7 S.K. Bhargava through his known Chartered Accountant. He deposed that S.K. Bhargava offered him that he could arrange some more orders of garments. DW-7 further deposed that in February 2009, A-7 S.K. Bhargava came to him and told him that he had an order from SIFCL and he had to supply embroidered shirts to SIFCL for coming election. On 10.03.2009, A-7 S.K. Bhargava came with the purchase order for embroidered shirts to be supplied to SIFCL to the tune of Rs.1.07 crores approximately and it was to be supplied within 45 days from the payment. DW-7 further deposed that payment was the condition precedent for supply of the garments and A-7 S.K. Bhargava, took his Bank details for the same to send the amount of Rs.1.07 crores approximately in his Bank account through RTGS. On 23.03.2009, A-7 S.K. Bhargava came to his factory and informed him that amount of Rs.51 lakhs approximately and Rs.55 lakhs approximately had been credited in his account. He also told him that the aforesaid amount was deposited through cheques. He also handed over photocopy of the cheques to him for his record purpose. He confirmed the same from his Bank, who in turn informed him that the amount of Rs.51 lakhs approximately and CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 108 of 263 :: 109 ::
Rs.55 lakhs approximately had been credited in his account. He then told him and pressurized him that now DW-7 had to complete the job work/supply of garments as per the purchase order dated 10.03.2009 within 45 days.
132. DW-7 further deposed that for the purpose of complying with the purchase order, he withdrew total amount of Rs.18 lakhs in cash from the Bank between 24 to 27th March, 2009 in the sum of Rs.9 lakhs each and in order to execute the purchase order, on 24.03.2009, he called Pramod Pandey, Director, AIPL and asked him to supply him embroidered fabric for a sum of Rs.65 lakhs approximately. DW-7/ A-1 Mukesh Jain came in contact with Pramod Pandey through Sh. Akhilesh Shukla, his known Chartered Accountant who had assured him that he could rely upon Pramod Pandey on the amount advanced to him. Thereafter, A-1 Mukesh Jain issued the purchase order of Rs.65 lakhs for supply of embroidered fabric in favour of M/s AIPL between 27.03.2009 to 30.03.2009, Mukesh Jain (A-1) had paid a sum of Rs.60 lakhs approximately through RTGS in three parts to M/s AIPL. DW*7 further deposed that on 30.03.2009, A-7 S.K. Bhargava came to him and told him that he did not have to execute the purchase order dated 10.03.2009 as the same had been cancelled by SIFCL. On hearing the same, he contacted Pramod Pandey and asked him that he needed to meet him urgently and went to his office along with A-CC No. 131/2019
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7 S.K. Bhargava then A-1 Mukesh Jain along with A-7 S.K. Bhargava went to the office of M/s AIPL in Skoda car of S.K. Bhargava where Mukesh Jain (A-1) told him that the order had been cancelled by SIFCL through A-7 S.K. Bhargava and requested Pramod Pandey to return the money advanced to him. After the discussion, it was agreed that after deducting some nominal amount, A-1 Mukesh Jain and Pramod Pandey would return the entire money received by him and from him to Pramod Pandey through RTGS in the account of SIFCL. However, A-7 S.K. Bhargava told that either the entire money should be paid through RTGS on that day itself or cash amount be given to him on behalf of SIFCL as he is the authorized representative of SIFCL. On the same day, in the same afternoon M/s AIPL withdrew Rs.50 lakhs cash (Rs.25 lakhs each from two Banks) and handed over the same to A-7 S.K. Bhargava in the presence of A-1 Mukesh Jain and his Assistant Accountant Sunil Dutta and Pramod Pandey and remaining Rs.10 lakhs was transferred by M/s AIPL to sub-contractor, namely, M/s Sand Grandeurs. He further deposed that thereafter, he along with A-7 S.K. Bhargava and his Accountant Sunil Dutta went to his Bank at BoB, Hauz Khas, Delhi where he withdrew Rs.15 lakhs in cash and handed over to A-7 S.K. Bhargava.
133. A-1 Mukesh Jain in his defence further deposed that on CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 110 of 263 :: 111 ::
31.03.2009, he withdrew Rs.5 lakhs in cash from his Bank and Rs.18 lakhs in cash which were earlier withdrawn by him, were given by him to A-7 S.K. Bhargava in the presence of his Accountant in his factory. He requested A-7 S.K. Bhargava 10 days time to pay the remaining amount to which he agreed. He further deposed that on 03.04.2009, he went out of station and came back on 08.04.2009 at 10 p.m. and when he reached home, CBI officials were present at his house and were conducting search of his house.
They made enquiries from him and he disclosed to them what he had disclosed in his evidence. He deposed that he had handed over the purchase order dated 10.03.2009 and other papers to the CBI officials. Thereafter, he was arrested by the CBI at 3 a.m. on 09.04.2009 and took him to their office at Khan Market.
134. DW-7 was cross-examined by Ld. Senior Public Prosecutor for the CBI. He deposed that he did not know about the deposit slip dated 20.03.2009 (MarkDW7/DA) or who deposited the cheque (Ex.PW3/A) in his account. He further deposed that he did not know about the deposit slip dated 20.03.2009 (Ex.PW67/DA) or who deposited the cheque (Ex.PW3/B) in his account. he did not find out who deposited the above two cheques in his account nor he made any enquiries in this regard from any person.
135. On a specific question put to him, DW-7 deposed that his CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 111 of 263 :: 112 ::
Accountant had issued the receipt of acknowledgement to S.K. Bhargava who was the authorized representative of SIFCL. He deposed that he did not know any person in SIFCL other than S.K. Bhargava.
136. In his further cross-examination conducted by Ld. PP for CBI, DW-7 deposed that he had not disclosed, what he had deposed before the Court in his deposition under Section 315 Cr.P.C., at the time of recording of his statement under Section 313 Cr.P.C. He denied that his deposition under Section 315 Cr.P.C. is afterthought due to which he had not disclosed in his statement recorded under Section 313 Cr.P.C. He deposed that A-7 S.K. Bhargava (A-7) did not offer him any order prior to March, 2009. He denied that A-7 never placed any order to him on behalf of SIFCL or that he was not the authorized representative of SIFCL.
137. During cross-examination of DW-7, a specific question was put to him, asking that could he produce the contract which was executed between his company M/s BMPL and SIFCL as stated by him in his statement under Section 313 Cr. P.C. DW-7 answered to the said question that the said contract between was in his briefcase and the CBI at the time of search, had seized all the documents from the briefcase including the said contract. He deposed that he did not remember, if any seizure memo with respect to the same was CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 112 of 263 :: 113 ::
prepared by the CBI at that time or not. He had not received the said contract along with his charge-sheet. He had not demanded the said contract at any point of time from the IO or during the proceedings of this case. He denied that no contract agreement was ever seized by the CBI from his briefcase as stated by him in his statement under Section 313 Cr.P.C. and that is why the same was not demanded by him. He denied that because there was no purchase order by SIFCL therefore, there was no question of cancellation of the same. To a specific question, he deposed that he did not inquire from anybody else from the office of SIFCL, Lucknow about the cancellation of order dated 10.03.2009 as A-7 S.K. Bhargava was the authorized representative of SIFCL. He denied that he had not contacted any of the person from the office of SIFCL as he was aware that there was no contract dated 10.03.2009 ever entered between hi and SIFCL. He volunteered to stated that he had a talk with A-7 S.K. Bhargawa so there was no need to contact any other person from SIFCL.
138. A specific question was put to DW-7 that the amount of Rs.1.07 crores which was credited in his account through two cheques of Rs.51 lakhs and Rs.55 lakhs approximately, was not towards any contract as stated by him but the amount was credited on the basis of forged cheques which he prepared along with other co-conspirators including A-7 S.K. Bhargava. He answered to CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 113 of 263 :: 114 ::
aforesaid question that the amount of Rs.1.07 crores credited to his account, was in pursuance to the contract dated 10.03.2009 between him and SIFCL. He further deposed that as regards the second part of the question relating to the forged cheques, he did not know anything about the same as he was not connected with the same. He denied that he was actively involved in the forging of the cheques if any and also instrumental in getting the amount credited in his account with the aid of his other conspirators including A-7 S.K. Bhargava.
ARGUMENTS
139. Ld. PP for CBI as well as Ld. Counsel for accused led their respective arguments on multiple dates and written submissions were also filed on behalf of A-1 Mukesh Jain and A-8 Smt. Benu Jain. Prosecution opened the arguments by highlighting the roles played by each of the accused persons in defrauding PNB, Lal Bagh Branch, Lucknow to the tune of Rs.1,46,71,000/- and attempting to cheat the Bank to the tune of Rs.2,72,38,000/- in pursuance to conspiracy hatched by the accused persons
140. It is argued by Ld. PP for CBI that prosecution has succeeded in proving beyond reasonable doubt that during 2008-09, A-1 Mukesh Jain, A-2 Nipun Bansal, A-3 Mohd. Nauman, A-4 Amit Aggarwal, A-5 Ganesh Lal, A-6 Chandra Bhan Singh, A-7 S.K. CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 114 of 263 :: 115 ::
Bhargava, A-8 Benu Jain, A-9 Jamir Ahmad and A-10 Raja @ Raje hatched criminal conspiracy amongst themselves at Delhi, Ghaziabad and Lucknow to cheat PNB by forging cheques arranged by A-6 Chandra Bhan Singh by stealing cheque book from PNB, Lal Bagh Branch, Lucknow. It is argued that the prosecution has proved on the basis of testimonies of PW-32, PW-39 and PW-40 that A-4 Amit Aggarwal stayed at Hotels, Nancy, Pallai Palace and Click on different dates where he hatched conspiracy with A-3 Mohd. Nauman and A-9 Jamir Ahmad to defraud the PNB in the presence of PW-10 Sobir Singh Rathi on one occasion.
141. It is argued that prosecution has proved that A-6 Chandra Bhan Singh and A-4 Amit Aggarwal were residents of Lucknow and they were in contact with each other as reflected from the phone book retrieved from the mobile phone of A-4 Amit Aggarwal as the same found containing mobile number and land line number of the residence of A-6 Chandra Bhan Singh. It is argued that said mobile was duly seized from A-4 Amit Aggarwal and, thereafter, sent to CFSL which confirmed by its report about the authenticity of the phone book which disclosed that A-4 Amit Aggarwal was having phone numbers of A-6 Chandra Bhan Singh. It is further argued by Ld. PP for CBI that it has been proved by the prosecution that PW-5 Ms. Sadhna Srivastava, Dy. Manager, PNB, Lal Bagh Branch has deposed that cheque book containing cheques No. 793201 to CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 115 of 263 :: 116 ::
793300 is reflected as 'destroyed' on 30.01.2009 in the Bank record and PW-12 Deepak Dave, Sr. Manager, PNB, Lal Bagh in his testimony stated that report of the aforesaid missing cheque book was given to higher officials of the Bank and, thereafter, the same were entered as 'destroyed' in the computer system. It is argued that the said witness identified the aforesaid cheque book and proved the same as Ex.PW12/C from the judicial record. It is submitted that prosecution has also proved that thereafter, A-4 Amit Aggarwal along with A-3 Mohd. Nauman visited the shop of PW-4 Sh. Preet Pal Singh, who was engaged in the business of making stamps/seals. It is argued that the said witness deposed that A-9 Mohd. Nauman and A-4 Amit Aggarwal approached him and at their instances, he prepared stamps/seals Ex.P1 to Ex.P5. It was further argued that the said cheque book along with copies of specimen signatures of authorised persons of SFICL and BCC and rubber stamps were handed over by A-4 Amit Aggarwal to A-5 Ganesh Lal for fabricating the cheques. It is argued that A-5 Ganesh Lal forged a cheque (Ex.PW4/A) after erasing the original cheque number and typing fresh number and putting the date '23.02.2009'. It is argued that the said cheque was deposited with HDFC Bank by way of deposit slip (Ex. PW13/10) dated 26.02.2009. The said deposit slip was identified by PW-13 Sh. Harish Gupta, Branch Manager, HDFC Bank, Lucknow. It is argued that the deposit slip was filled up by A-CC No. 131/2019
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6 Chandra Bhan Singh for Rs.40 lakhs and the same was proved by GEQD, which was tendered in evidence by PW-47, who was not even cross-examined by the Counsel for A-6 Chandra Bhan Singh.
142. It is argued that the prosecution has succeeded in proving that aforesaid act was done by A-6 Chandra Bhan Singh to obtain pecuniary gains for himself or for other co-accused by corrupt or illegal means or by using his position has public servant and thus, committed an offence under Section 120B read with Sections 420/467/468/471 IPC read with Section 13(2) read with Section 13(1)(d) PC Act.
143. It is argued by Ld. PP for CBI that it is proved that A-3 Mohd. Nauman and A-4 Amit Aggarwal contacted A-2 Nipun Bansal, who was the proprietor of M/s BTC and the aforesaid cheque of Rs.40 lakhs was forged and fabricated in favour of M/s BTC and shown to have been issued by BCC. It is argued that an amount of Rs.40 lakhs was credited in the Bank account of M/s BTC and the said amount was diverted to different accounts through cheque on different dates. It is further argued that prosecution has succeeded in proving that the Bank account was got opened by A-2 Nipun Bansal in conspiracy with A-3 Mohd. Nauman showing Mohd. Yusuf as proprietor of M/s ASH through Ashok Kumar Gupta for rotation of funds for income tax purpose on commission basis and, thereafter, CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 117 of 263 :: 118 ::
in furtherance of the conspiracy, a cheque of Rs.65 lakhs was presented for encashment by A-2 Nipun Bansal in PNB, Rani Bagh on 16.01.2009, which was filled up by A-2 Nipun Bansal himself. However, the said cheque was returned as the signature did not tally. It is further argued that it has been proved that subsequently, as A-3 Mohd. Nauman could not get anything from the proceeds of the crime of Rs.40 lakhs, he prevailed upon A-2 Nipun Bansal for providing other Bank account for encashment of the similarly forged cheques and accordingly, A-2 Nipun Bansal through his contact provided the Bank account of M/s BMPL to him. It is argued that A- 3 Mohd. Nauman forged cheques on his own after obtaining blank multiple cheque book of Bank account of M/s SCG through its proprietor Deepak Sharma. Thereafter, name of Lal Bagh Branch and its branch code got printed on the cheque leaves by A-3 Mohd.
Nauman.
144. It is argued that the prosecution has further succeeded in proving that two cheques out of the aforesaid series of cheques from the cheque book of M/s SCG were utilised for forging cheques dated 18.03.2009 for Rs.51.65 lakhs and another dated 19.03.2009 for Rs.55.06 lakhs after fabricating signatures of Jayendra Singh and S. Banerjee, authorised signatories of M/s SIFCL favouring M/s BMPL. It is argued that aforesaid two cheques were presented for encashment by the accused persons in Bank of Baroda at its two CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 118 of 263 :: 119 ::
branches, situated at Darya Ganj and Connaught Place. The said cheques were honoured and total amount of Rs.1,06,71,000/- was credited in the account of M/s BMPL maintained at Bank of Baroda, Hauz Khas. It is argued that the aforesaid account of M/s BMPL was being operated by A-1 Mukesh Jain and his wife/A-8 A-8 Benu Jain being Directors of the said company and they entered into criminal conspiracy with A-7 S.K. Bhargava and three of them utilised the aforesaid amount of Rs.1,06,71,000/-. It is argued that prosecution has also succeeded in proving that A-10 Raje @ Rajeev got opened a Bank account in the name of Shahid in PNB, Morta, Ghaziabad at the instance of A-9 Jamir Ahmad and two forged and fabricated cheques for an amount of Rs.3.65 lakhs and Rs.4.50 lakhs showing to have been issued from the account of M/s BCC favouring Shahid were presented for encashment at PNB, Rithani, Meerut. However, the said cheques were not honoured as the Manager of the said Branch got suspicious of the authenticity of the said two cheques and verified the same from Lal Bagh Branch.
145. On the strength of the aforesaid submissions, it is argued that prosecution has succeeded in proving beyond reasonable doubt that the aforesaid accused hatched a conspiracy to defraud the Bank and defrauded the Bank for an amount of Rs.1,46,71,000/- and made an attempt for Rs.2,72,38,000/- and thus, they are liable to be convicted for the offence for which charges have been framed against them.
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ARGUMENTS ON BEHALF OF A-4 AMIT AGGARWAL
146. Per contra, Ld. Counsel for A-4 Amit Aggarwal argued that prosecution has miserably failed to prove the charges of hatching conspiracy and commission of offence as no incriminating evidence has been adduced by the prosecution to substantiate the charges agaimst him. It is argued that the prosecution, at the most, has only succeeded to prove A-4 Amit Aggarwal's stay at hotels, namely, Nancy, and Pallai Palace, however, it failed to prove that A-3 Mohd. Nauman and A-9 Jamir Ahmad visited the said hotels and met A-4 Amit Aggarwal at any point of time. Even PW-10 Sobit Singh Rathi, whose testimony was relied by prosecution to prove that conspiracy was hatched between A-4 Amit Aggarwal, A-3 Mohd. Nauman and A-9 Jamir Ahmad in his presence, turned hostile and did not support the case of the prosecution.
147. It is argued that A-4 Amit Aggarwal used to stay at hotels in connection with his business and mere fact of staying, does not prove the factum of any conspiracy when A-3 Mohd. Nauman and A-9 Jamir Ahmad were not found visiting him as the prosecution has also failed to prove the Visitors' Register of the said hotels on record.
148. It is further argued that prosecution has also failed to prove that A-4 Amit Aggarwal was ever in contact with A-6 Chandra Bhan CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 120 of 263 :: 121 ::
Singh as no evidence, documentary or oral have been adduced by prosecution in this regard. It is argued that the contact list allegedly retrieved from the mobile phone of A-4 Amit Aggarwal showing name of A-6 Chandra Bhan Singh in his contact list, does not prove that both of them were ever in touch with each other. It is argued that prosecution has failed to prove that the said numbers were issued in the name of A-6 Chandra Bhan Singh or he was using the same. It is argued that no CDR has been placed by the investigation agency showing any conversation between A-4 Amit Aggarwal and A-6 Chandra Bhan Singh.
149. It is further argued that testimony of PW-3 relied upon by prosecution to prove the factum of alleged fabrication and forging of the cheques Ex.PW3/A, Ex.PW3/B, Ex.PW3/C, Ex.PW3/D, Ex.PW3/E and Ex.PW3/F is not trustworthy as the said witness is neither an expert to prove the said fact nor he ever examined the forgery of cheque in any other case. It is argued that the said witness was only having a Diploma in Printing Technology and that itself does not confer upon him any expertise to gauge the authenticity and genuineness of any cheque. It is argued that in his cross- examination, PW-3 deposed that he never operated a printing machine and only had experience of supervising the printing work and he himself admitted that PNB had its own printing department, but printing used to be done from outside as the said department had CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 121 of 263 :: 122 ::
no printing machinery.
150. It is further argued that at the relevant time, name of the branches were used to be already printed on the cheques and thus, there cannot be any alteration in the cheque in question with regard to branch names. However, the said witness deposed about alteration of the branch names on the cheque in question and that itself renders the testimony of PW-3 not worthy of giving any credence.
151. It is further argued that prosecution has also failed to prove that A-4 Amit Aggarwal got prepared the rubber stamps, which were shown to be seized by investigation agency from the premises of A- 5 Ganesh Lal. It is submitted that reliance of the prosecution on the disclosure statement of A-4 Amit Aggarwal is misplaced as the same is not admissible in evidence having been recorded while in the custody of the police. Furthermore, A-4 Amit Aggarwal was identified by one Bhagat Singh at his shop, but he was not examined by the prosecution. It is further argued that when PW-4 was examined on 15.09.2010, he had only identified the rubber stamps on the cheque dated 23.02.2009 favouring M/s BTC and the prosecution did not get A-4 Amit Aggarwal identified from the said witness in the court. However, PW-4 was again examined by the prosecution on 22.03.2012 despite his evidence having been closed CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 122 of 263 :: 123 ::
on the previous date i.e. 15.09.2010. The summon was issued in favour of Bhagat Singh, but he did not appear and PW-4 was re- examined by the prosecution without seeking any leave from the court and thus, testimony without the leave of the court cannot be relied upon by prosecution.
152. It is argued that even testimony of Pritpal Singh is not reliable as he had not prepared the alleged stamps as he deposed in his testimony recorded on 22.03.2012 that stamps were not prepared 'by them' and he did not depose that he himself prepared the said stamps. Furthermore, no receipts in respect of preparation of the stamp was produced by the said witness or any other witness of the prosecution. Furthermore, it is argued that case of the prosecution that signature on the cheque dated 17.03.2009 for Rs.1,58,70,000/-
purported to be issued by UPSRTC in favour of Lepakshi Overseas was found matching with signature of A-4 Amit Aggarwal, is not believable as the exper has not given any reason for his opinion. Furthermore, it is argued that expert has not produced any graph or rough worksheet in respect of his opinion. It is further argued that prosecution has not given any explanation as to why signatures of authorise persons of Bajpai Construction Comapany and SFICL were not sent for examination by GEQD, which raises serious doubts on the case of the prosecution.
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153. It is further argued that in his testimony, PW-4 stated that the said stamps were computer generated. However, the prosecution has failed to bring on record the said evidence and thus, even on this score, the evidence of the prosecution w.r.t. recovery of the stamps is inadmissible in view of Section 65B of Indian Evidence Act. It is further argued that the PW-4 has himself admitted that there was no distinguished marks on the rubber stamps (Ex.P1 to Ex.P5) and such rubber stamps could also be prepared and bought from market.
Thus, the prosecution has failed to prove that the aforesaid stamps are the very stamps which were used to forge the cheques in question.
154. It is further argued that testimony of PW-6 Sh. Pravin Khurana is liable to be discarded as the said witness testified about the forging of NSCs etc. by A-4 Amit Aggarwal allegedly told by him and further asked for a loan on those forged NSCs, has no bearing in this case as the A-4 Amit Aggarwal is not being prosecuted for forging any NSC. Furthermore, the said witness for the first time stated about the aforesaid alleged forgery of NSC before the court and no such statement was made to the IO by PW-6. Thus, his testimony cannot be relied upon by the prosecution for showing the conduct of A-4 Amit Aggarwal. It is further argued that prosecution has to prove the charges against A-4 Amit Aggarwal on the basis of the evidence beyond reasonable doubt and his alleged CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 124 of 263 :: 125 ::
conduct in forging NSCs etc. will not advance the case of the prosecution. It is finally argued that prosecution has miserably failed to prove that A-4 Amit Aggarwal hatched any conspiracy or that he had committed any offence for which he has been charged and, therefore, he is entitled to be acquitted.
ARGUMENTS ON BEHALF OF A-2 NIPUN BANSAL
155. It is argued by Ld. Counsel for A-2 Nipun Bansal that prosecution has not adduced any evidence showing any element of conspiracy by the accused with any other accused, as no time, place and the nature of conspiracy have come in evidence. There is no material or evidence showing that A-2 Nipun Bansal had ever been in touch with other accused persons. It is argued that prosecution adduced any evidence substantiating the allegations against A-2 Nipun Bansal that he had ever forged or used forged cheque bearing no. 786680 (Ex.PW4/A) for an amount of Rs.40 lakhs or that he committed any offence of cheating against any person. It is argued that the amount of Rs.40 lakhs was credited to the Bank account of M/s BTC and subsequently, the amount of Rs.20 lakhs was returned to the account of M/s BCC on 15.03.2009. Thereafter, in pursuance to bail order dated 14.09.2010 passed by Hon'ble High Court of Delhi, Rs.15 lakhs were again returned to the account of M/s BCC. Thus, the entire amount of Rs.40 lakhs was returned by A-2 Nipun Bansal.
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156. It is further submitted that A-2 Nipun Bansal never made an attempt to encash cheque of Rs.65 lakhs as alleged by prosecution an no evidence was led by the prosecution in this regard. It is submitted that testimony of PW-4 Ajay Kumar Gupta to the effect that Ravikant Singh deposited the cheque of Rs.65 lakhs in the Bank account of Mohd. Yusuf in the presence of A-2 Nipun Bansal, is unbelievable as the same only a hear-say evidence. The primary witness in the present case on the aforesaid aspect was Ravi Kant Singh. However, the said witness was neither cited by the prosecution nor examined for the reason best known to them. It is submitted that A-2 Nipun Bansal has been falsely implicated by IO to save Ajay Kumar Gupta and Ravikant Singh, who were in conspiracy with each other and got opened Bank account in the name of Mohd. Yusuf in order to credit the amount of Rs.65 lakhs in the said Bank account. It is argued that prosecution has failed to produce evidence establishing any link of A-2 Nipun Bansal with M/s AHS.
157. The prosecution has failed to prove as to why PW-48 Ajay Kumar Gupta in whose employment Mohd. Yusuf, Proprietor of M/s AHS, was working as driver, did not obtain any residence identity proof or driving licence from him. The prosecution has also failed to trace the persons, who introduced Mohd. Yusuf to PNB for opening of Bank account. Though, PW-48 stated that he had accompanied CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 126 of 263 :: 127 ::
Mohd. Yusuf to PNB, Rani Bagh for opening of his Bank account in the name of Mohd. Yusuf. However, he showed his ignorance with regard to other persons, who accompanied them to the Bank. It is argued that A-2 Nipun Bansal was not going to be benefited with the credit of Rs.65 lakhs through the alleged forged and fabricated cheque, as the prosecution had failed to establish any nexus between him and Mohd. Yusuf in whose account the cheques would have credited.
158. It is argued that there was no person by the name 'Mohd. Yusuf' and the Bank account was opened by PW-48 Ajay Kumar Gupta in the fictitious name to gain illegally and he hatched conspiracy with Ravi Kant Singh for committing the said fraud. Furthermore, it is argued that even the identification of A-2 Nipun Bansal by PW-11 Raj Kumar in the court is not admissible in evidence, as the witness himself admitted in his cross-examination that he had seen A-2 Nipun Bansal in the office of CBI thus, raising doubt that A-2 Nipun Bansal was identified by the witness at the instance of CBI. It is argued that identification of A-2 Nipun Bansal by PW-2 Sandeep in the court at the instance of CBI, as the testimony of the said witness is not of sterling quality and he is not a creditworthy witness.
159. Furthermore, the investigation agency did not send the CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 127 of 263 :: 128 ::
handwriting and signature on the cheque and deposit slips for its examination by GEQD deliberately as it would have confirmed the rile of other accused persons. It is submitted that prosecution has failed to prove the presence of A-2 Nipun Bansal at PNB, Gujranwala Branch, New Delhi at the time of alleged deposit of cheque of Rs.65 lakhs. Thus, A-2 Nipun Bansal is entitled to be acquitted of all the charges.
ARGUMENTS ON BEHALF OF A-5 GANESH LAL
160. Ld. Counsel for A-5 Ganesh argued that PW-49 Inspector Bodh Raj, who conducted search at the premises of A-5 Ganesh Lal failed to produce any authorisation letter to conduct earch at the said premises. He further argued that though, the articles, such as stamps and cheque books were recovered from the drawer of his office, but there is no evidence that A-5 Ganesh Lal was having knowledge of presence of the said articles. It is further argued that except PW-49, no other witness was examined by prosecution with respect to search conducted at the premises of A-5 Ganesh Lal. It is also argued that there is no evidence on record suggesting that the stamps recovered from the premises of A-5 Ganesh Lal were the same stamps which were affixed on the cheques in question. It is further argued that prosecution has failed to bring any material to substantiate allegations that A-5 Ganesh Lal had forged and fabricated the cheques and the signatures of the authorised persons.
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On the basis of the aforesaid arguments, it is claimed that A-5 Ganesh Lal is entitled to be acquitted.
ARGUMENTS ON BEHALF OF A-6 Chandra Bhan Singh
161. It is argued by Ld. Counsel for A-6 Chandra Bhan Singh that prosecution has failed to prove any evidence to show that he had ever been in touch with A-4 Amit Aggarwal or any other accused in the present case so as to bring him within the ambit of the alleged conspiracy. It is submitted that only material produced by the prosecution against A-6 Chandra Bhan Singh to substantiate that he was in touch with A-4 Amit Aggarwal, is alleged contact numbers of A-6 in the contact list of A-4 Amit Aggarwal. It is argued that there is no seizure memo on record to show that the said mobile was seized during the course of investigation from the possession of A-4 Amit Aggarwal. It is further argued that the prosecution has not brought anything on record to show that the said mobile phone was owned and/or owned by A-4 Amit Aggarwal at any point of time and, therefore, the reliance placed by the prosecution on the evidence of PW-66, who tendered in his evidence the phone book of the mobile in question cannot be believed. Furthermore, it is aruged that even if it presumed for the sake of arguments that the mobile was owned by A-4 Amit Aggarwal and it was validly seized during the investigation, the prosecution has failed to prove that the alleged contact number stored in the mobile phone of A-4 Amit Aggarwal CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 129 of 263 :: 130 ::
pertained to A-6 Chandra Bhan Singh. It is argued that neither CAF was brought on record by the prosecution to show that A-6 Chandra Bhan Singh was using those alleged phone numbers nor any CDR record was tendered in evidence and thus, the prosecution has miserably failed to prove that A-6 Chandra Bhan Singh was in conspiracy wth A-4 Amit Aggarwal or any other accused.
162. It is further argued that the charge against A-6 Chandra Bhan Singh that he removed the cheque book in question from the Bank and, thereafter, handed over the same to A-4 Amit Aggarwal and A- 5 Ganesh Lal, was not proved. In fact, PW-5 deposed that the cheque book never remained in exclusive custody of A-6 Chandra Bhan Singh. It is argued that PW-5 has testified that cheque books used to remain in her custody and in the custody of Deepak Dave, Manager. PW-5 further testified that she and Deepak Dave used to have one key each and one lot containing 10 cheque books of 100 leaves, used to be taken out at one point of time from their joint custody. It is further argued that even during the cross-examination of PW-5, she deposed that there was double locking system and the same was not accessible to A-6 Chandra Bhan Singh. It is argued that has also deposed that the cheque books even after being taken out from the safe custody by PW-5, were never given to A-6 Chandra Bhan Singh. It is also argued that prosecution has failed to prove that the aforesaid two persons were on leave and A-6 Chandra CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 130 of 263 :: 131 ::
Bhan Singh was performing duties in their place making cheque books accessible to him.
163. With reference to allegations of the prosecution that A-6 Chandra Bhan Singh had also made available the specimen signatures of the authorised persons of M/s BCC and M/s SIFCL, it is submitted that the prosecution failed to bring any material on record to substantiate the said allegations. Furthermore, the testimony of PW-6 was relied by Ld. Counsel for A-6 Chandra Bhan Singh submitting that the said witness deposed that in CBS Branch of Bank, the account number of all the account holders along with their specimen signatures and details of the amount were available and he further admitted tht PNB, Modi Nagar is CBS Branch and, therefore, the possibility of forging of the signatures of the authorised persons from the CBS Branch, Modi Nagar could not be ruled out. On the strength of the aforesaid, it is argued that prosecution has failed to bring that A-6 Chandra Bhan Singh was in the exclusive control and possession of the cheque books and the specimen signatures of authorised persons.
164. It is argued that A-6 Chandra Bhan Singh never filled up the deposit slip and the report of the handwriting expert (Ex.PW47/A) is not believable as no handwriting expert can opine with certainty about the handwriting of any person as has been in the present CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 131 of 263 :: 132 ::
report. Furthermore, it is argued that even if it is presumed for the sake of argument that handwriting is of A-6 Chandra Bhan Singh on the deposit slip, it might be possible that since A-6 Chandra Bhan Singh was working on the 'Help Desk' at the relevant time, he might have filled up the deposit slip on the asking of some one. Furthermore, it is argued that the said deposit slip was signed by one Ramesh and the prosecution failed to verify the identity of the said Ramesh, as the signature in the name of Ramesh were not found to be in the handwriting of A-6 Chandra Bhan Singh as per the report (Ex.PW47/A). It is further argued that the cheque in question was never sent to CFSL for verification of signature on behalf of M/s BCC. Finally, it is argued that prosecution has failed to prove the allegation of conspiracy and A-6 Chandra Bhan Singh's alleged role in the same and, therefore, he is entitled to be acquitted of all the charges.
ARGUMENTS ON BEHALF OF A-1 MUKESH JAIN AND A-8 A-8 BENU JAIN
165. It is argued by Ld. Counsel for aforesaid accused persons that prosecution has failed to bring any material/ document/ evidence to show that any conspiracy was hatched between A-1 Mukesh Jain, A- 8 Benu Jain and other accused. It is submitted that there is no iota of evidence suggesting that A-1 Mukesh Jain and A-8 Benu Jain had ever in pursuance/ furtherance to conspiracy, attempted for CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 132 of 263 :: 133 ::
encashment of cheque in the Bank account of M/s BMPL, in which they were the directors. It is argued that prosecution has nowhere alleged in the charge-sheet that A-8 Benu Jain had entered into any conspiracy with any accused persons and only evidence against her is that she signed on some of the cheques jointly with her husband, i.e., A-1 Mukesh Jain. However, there is no evidence to show that she was an active participant in any alleged conspiracy. It is submitted that prosecution has failed to bring any role of A-1 Mukesh Jain and A-8 Benu Jain that the alleged cheques (Ex.PW3/A and Ex.PW3/B) were credited in the account of Bahubali with their active or passive role. It is argued that only witness against them is PW-7 Pramod Kumar Pandey, Director of AIPL. However, he did not state that A-1 Mukesh Jain and/ or A-8 Benu Jain conspired tht any other accused or person for crediting the amount of the cheque in the Bank account of Bahubali.
166. It is argued that prosecution has not brought evidence demonstrating that either A-1 Mukesh Jain or A-8 Benu Jain used any forged cheque for crediting Rs.1,06,71,000/- to the aforesaid Bank account of M/s BMPL. It is submitted that accused had succeeded in proving by way of A-1 deposing before this court under Section 315 Cr. P.C. and leading defence evidence that in fact, there was a contract between SIFCL and M/s BMPL through the agent/ A-7 S.K. Bhargava to supply embroided shirts to SIFCL and CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 133 of 263 :: 134 ::
in pursuance to the said contract, SIFCL got credited the aforesaid amount to the Bank account of M/s BMPL. It is submitted that the said contract was seized by CBI on the day of the raid from the briefcase of A-1 Mukesh Jain from his house along with one agreement between M/s BMPL and M/s AIPL and thus, accused persons did not induce M/s SIFCL to part with the aforesaid money and did not commit any offence of cheating. It is submitted that upon the aforesaid amount having been credited to the Bank account of M/s BMPL, Rs.50 lakhs was withdrawn and handed over to A-7 S.K. Bhargava and Rs.25.25 lakhs were transferred to the Bank account of M/s AIPL through RTGS.
ARGUMENTS ON BEHALF OF A-7 S.K. BHARGAVA
167. It is submitted that prosecution has failed to prove that A-7 S.K. Bhargava was part of any alleged conspiracy and no document/ material has been produced to connect the accused with other accused persons. It is submitted that there is no evidence against A- 7 S.K. Bhargav showing his presence at any point of time with A-1 Mukesh Jain or any other accused to prove that he was handed over any money as alleged by the prosecution. Even PW-7 on whose testimony the prosecution is relying upon to implicate A-7 S.K. Bhargava, has not uttered anything against him. It is argued that even the prosecution failed to get A-7 S.K. Bhargava identified by PW-7 Pramod Kumar Pandey to prove the allegations that A-1 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 134 of 263 :: 135 ::
Mukesh Jain identified any amount to A-7 S.K. Bhargava at any point of time. The prosecution has failed to prove that A-7 S.K. Bhargava was owning any Skoda car. It is argued that reliance place by the prosecution on the testimony of A-1, DW-1 and DW-2, cannot be taken into consideration as no foundation was laid by prosecution against A-7 S.K. Bhargava to implicate him in any offence and the prosecution cannot be permitted to rely upon the evidence of co-accused or his witnesses to prove the charges against A-7 S.K. Bhargava, as prosecution has to stand on its own feet to substantiate the charges against A-7 S.K. Bhargava.
168. It is argued that even if the testimony of A-1 Mukesh Jain and DW-2 Sunil Dutta are taken into consideration, the prosecution has not proved any incriminating material to substantiate the charge against him. It is argued that as per Para-22 of the charge-sheet, the case of the prosecution is that an amount of Rs.50 lakhs in cash was handed over to A-1 Mukesh Jain by PW-7 Pramod Kumar Pandey after withdrawing from Bank account of AIPL in the presence of A- 7 S.K. Bhargava and he had taken the said amount. DW-1 Sunil Luthra and DW-2 Sunil Dutta in their respective testimonies stated that the aforesaid amount of Rs.50 lakhs was handed over to A-7 S.K. Bhargava by PW-7 Pramod Kumar Pandey. It is argued that nether neither DW-1 nor DW-2 identified A-7 S.K. Bhargava in the court stating that A-7 S.K. Bhargava was the person to whom CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 135 of 263 :: 136 ::
amount of Rs.50 lakhs was handed over to him. It is argued that both the witnesses stated that the amount was handed over to A-7 S.K. Bhargava by PW-7 Pramod Kumar Pandey or in his presence. However, PW-7 Pramod Kumar Pandey neither named A-7 S.K. Bhargava nor identified him in the court. Thus, there is no material or evidence against A-7 S.K. Bhargava. Thus, he is liable to be acquitted of the charges.
ANALYSIS AND APPRECIATION OF EVIDENCE AND FINDINGS
169. In the present case as noted above, A-6 Chandra Bhan Signh is a Public Servant against whom the allegation is that he made available cheque book and specimen signatures of authorised signatories of Bank account holders to A-4 Amit Agarwal to be used for withdrawing the amount unauthorisedly by the accused from the Bank accounts of the customers having large balance in their accounts. The contention of Ld Counsel for A-6 Chandra Bhan Singh is that there is no averment or allegation in the entire charge sheet of extension of any illegal gratification on the part of private accused persons, to the accused public servant and the prosecution has failed to prove that A-6 Chandra Bhan Singh obtained any pecuniary advantage from any person and therefore by no stretch of imagination, the provisions of Section 13(1)(d) of Prevention of Corruption Act, could have been invoked. It is contended that on CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 136 of 263 :: 137 ::
this ground itself, the case cannot proceed and A-6 Chandra Bhan Singh should be acquitted. In view of aforesaid submissions, before adverting to appreciate the prosecution and defence evidence which has come up on record vis-a-vis the charges against the accused persons, it is deemed appropriate to deal with that contention which has been raised by Ld. Defence Counsel, on purely legal aspects, in their quest to demolish the prosecution case at its threshold.
170. In order to deal with this contention of Ld. Defence Counsel, it is pertinent to make a mention of the relevant provisions of Section 13(1)(d) of PC Act which reads as under :-
"Section 13 : Criminal misconduct by a public servant: - (1) A public servant is said to commit the offence of criminal misconduct, -
(a) . . .
(b) . . .
(c) . . .
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or
(ii)by abusing his positioning as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or
(iii)while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest ; or
(e) . . ."
171. The essential ingredients of Section 13(1)(d) of the PC Act CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 137 of 263 :: 138 ::
are (i) the person should be a public servant; (ii) he should have used corrupt or illegal means or otherwise abused his position as such public servant and obtained valuable thing(s) or pecuniary advantage for himself or for any other person or (iii) he should have obtained valuable thing(s) or pecuniary advantage for himself or for any other person without any public interest. In Runu Ghosh vs. CBI1, it was held that:-
"66. ........ A new offence (or sub-species, of the existing offence) has been carved out, in Section 13(1)(d)(iii) which criminalizes, as "criminal misconduct" the act of a public servant, holding office, which results in someone else ( "any person ") benefiting by getting a valuable thing or pecuniary advantage, "without any public interest " There is no doubt that Parliament created this new offence of criminal misconduct, where abuse of office, or use of corrupt or illegal means by a public officer, is inessential to prove the crime. What the prosecution has to establish, in accordance with law, is that the public officer, obtained for someone else - not necessarily by abusing his office, or using corrupt or illegal means - pecuniary advantage or a valuable thing - without public interest."
(emphasis supplied)
172. The phrases namely "corrupt , illegal means" and "by abusing his position as public servants" are different categories of corrupt practices, which are conjuncted by the words "or" and not by the conjunction "and". This in itself indicates that these three different categories are alternate misconduct on the part of public servant and
1. MANU/DE/6909/2011 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 138 of 263 :: 139 ::
either of these three practices, if done by public servant then the same can constitute an offence under this Section.
173. The phraseology "By abusing his official position as Public Servant" covers the acts done by the public servant otherwise than by corrupt or illegal means. The gist of the offence under this clause is, that a public officer abusing his position as "public servant"
obtains for himself or for other person, any valuable thing. The word "abuse" used by the Legislature means "misuse", ie. using his position for something which is not intended. That abuse of the position may be by corrupt or illegal means or otherwise than those means". In view thereof, the Legislature never intended that there has to be an express evidence of illegal gratification before invocation of this section. In case, there are instances and allegations that a person has abused his position as a public servant, in order to cause advantage to anyone, that in itself is sufficient for invocation of this Section. The contention raised by Ld. Defence Counsels that the provisions of Prevention of Corruption Act cannot be invoked in the absence of any allegations by the prosecution on the part of public servant of demand and acceptance of illegal gratification for showing any favor to a private individual is far- fetched and devoid of merits. As there are allegation of abuse of official position by the public servant A-6 Chandra Bhan Singh in CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 139 of 263 :: 140 ::
order to cause pecuniary advantage to their co-accused, this clause of P.C.Act very much comes into play.
174. In view thereof, the contention advanced by Ld. Defence Counsel that in the present case there are no allegations on record that A-6 Chandra Bhan Singh, the public servant, adopted any corrupt or illegal means or obtained any pecuniary advantage for himself, thus Section 13(1)(d) of P.C. Act cannot be invoked, is rejected. Needless to mention that the prosecution has to establish necessary ingredients of the offences with which A-6 Chandra Bhan Singh has been charged, on the basis of the evidence adduced before this court.
175. Having dealt with the contentions urged by Ld. Defence Counsel on behalf of the A-6 Chandra Bhan Singh on purely legal grounds, this Court shall now delve upon to consider prosecution evidence which has come up on record, vis-a-vis each of the accused persons facing trial for the charges. The case of the prosecution, as noted above, is that all the accused persons conspired amongst themselves to present eight forged and fabricated cheques, out of which three cheques were honoured and attempts to encash other five cheques failed. Eight transactions relating to eight cheques are in question, the details whereof in tabular form are as under:CC No. 131/2019
CBI Vs. Mukesh Kumar Jain & Others. Page No. 140 of 263 :: 141 ::
Sl. Date of Cheque Amount Purported In favour of Remarks
No. cheque Number to be
issued by
1 16.01.2009 TSP 786698 65,00,000 M/s BCC M/s Abdul Not passed
Habib and by the
Sons Clearing
authority
2 23.02.2009 TSP 786680 40,00,000 M/s BCC M/s BTC, Passed by
HDFC Bank, Clearing
Kashmere authority
Gate, Delhi
3 02.03.2009 TTT 793699 4,50,000/- M/s BCC Shahid Not passed
by the
Clearing
authority
4 04.03.2009 TTT 793697 3,65,000/- M/s BCC Shahid Not passed
by the
Clearing
authority
5 17.03.2009 TTT 512776 1,58,70,000/- M/s M/s Lee Not passed
UPSRTC Pakshi
by the
Overseas
Clearing
authority
6 18.03.2009 TTT 512796 40,53,000/- M/s M/s Emmar Returned
SIFCL Construction with
Ltd. remarked
'Refer to
Drawer'
7 18.03.2009 TTT 512780 51,65,000/- M/s M/s BMPL Passed by
SIFCL the
Clearing
authority
8 19.03.2009 TTT 512799 55,06,000/- M/s M/s BMPL Passed by
SIFCL the
Clearing
authority
176. As per the charge-sheet, it was found during investigation that the abovesaid accused persons had defrauded PNB, Lalbagh Branch, Lucknow to the tune of Rs.1,46,71,000/- (Rs.40 lakhs + Rs.55.65 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 141 of 263 :: 142 ::
lakhs + Rs.51.06 lakhs) during February - March, 2009 and attempted to defraud the Bank to the tune of Rs.2,72,38,000/- (Rs.65 lakhs + Rs.1,58,70,000/- + Rs.40.53 lakhs + Rs.3.65 lakhs + Rs.4.50 lakhs) during January 2009 March 2009.
177. All the aforementioned cheques are Multicity Cheques, the process of the encashment of which was elaborately testified by PW-29 and PW-28 who were posted as Senior Internal Auditor and Senior Manager in PNB respectively. As per their respective testimonies, Multicity Cheques were introduced after advent of Core Banking System (CBS) which enables a customer / account holder to present the cheques for encashement in any of the Branches of the Bank concerned while earlier to the CBS, a customer could present the cheque only at the Bank where Account was maintained.
The CBS system was introduced in 2004 and became fully operational by 2010. Initially, one could avail Multicity Cheque Book from any of the Branch of the Bank concerned but now same has been done away and customer could only avail such Cheque Book from the parent account maintaining Brnach of the Bank concerned. The Multicity Cheques used to have details of the Branches covered by CBS on its back, but thereafter, the said system was discarded after CBS became fully functional.
178. The Cheque Books which used to be varied in respect to CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 142 of 263 :: 143 ::
different kinds of Bank Accounts, had now become identical in size. Furthermore, the transaction became accounted under different account heads by the system on the basis of special code assigned and given in account number itself. For instance in saving account, code is 10 and in case of current account, code could be 20 or whatever within the account number. Presently, in cheque, there are four types of codes, cheque number, 9-digits MICR code, base number and trans code. MICR is a Magnetic Ink Character Recognition having 9 digits number on the cheque wherein first three digits indicate the Station, other three digits indicate the Bank and remaining three digits indicate the Branch. Trans code indicates whether the cheque is Multicity Cheque or not. PW-29 deposed about two cheques i.e. Ex.PW3/A and Ex.PW3/B purported to have been issued by M/s BMPL stating that first six digits on cheque denote number, other nine digits denote MICR code and other two digits denote trans code of the Multicity Cheques indicating that account in question was a current account.
179. In 2007,Cheque Truncation System (CTS) was started in Bank. Prior to CTS, the cheque presented for payment used to be sent to the parent Branch concerned physically for clearance, however, after advent of CTS, the Bank where the cheques are presented for payment/clearance to get the cheques scanned with all the relevant particulars on the system and put on a flat file i.e. sent CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 143 of 263 :: 144 ::
electronically to the Clearing House run by the RBI at Delhi. There are two mechanisms involved in CTS i.e. inward and outward clearing system. The cheques required to be paid by the Bank is called inward clearing system while the payments to be collected from the other Banks for clearance of the cheques, is called outward clearing system. In the said process, RBI plays a major role in the clearing system as a Hub has been created where all the Banks are present and the entire inward and outward exchange is done there, that is to say, RBI maintains inter Bank accounts in regard to clearing of cheques in CTS system.
180. When the transaction is involved as between two Branches of the same Bank, the platform of the RBI is not used and it is only when the transaction as between the two branches of different Banks that the Hub created by the RBI is used. RBI is merely a conduit or a facilitator that provides its servers for online clearing of the cheques, however, it is duty of the individual Bank i.e. the Bank which has received the inward clearing and all the cheques are deemed to be cleared unless notified by the RBI or otherwise within the prescribed time limit. In the aforementioned backdrop of process of encashment of multi-city cheques, the transactions involved herein are to be analysed.
181. The accused are charged for entering into a criminal CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 144 of 263 :: 145 ::
conspiracy in the matter of commission of several offences relating to transactions of aforesaid eight cheques. As per the case of prosecution, all the accused persons entered into a criminal conspiracy with one another, the object of which was to cheat PNB and its customers. Thus conspiracy is the most pivotal part of the prosecution case, which is the primary charge against the accused persons, being axis around which revolves the other charges. Section 120A IPC defines "criminal conspiracy". Accordingly, to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal, by illegal means such an agreement is designated as "criminal conspiracy". In view of this definition, the gist of the offence is "an agreement to break the law". The basic ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means.
182. Condition precedents for holding the accused persons to be guilty of a charge of criminal conspiracy must be considered on the anvil of the facts which must be established by the prosecution, viz., meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. The courts, however, while drawing an inference from the materials brought on record to CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 145 of 263 :: 146 ::
arrive at a finding as to whether the charges of the criminal conspiracy have been proved or not, must always bear in mind that a conspiracy is hatched in secrecy and it is difficult, if not impossible, to obtain direct evidence to establish the same. The manner and circumstances in which the offences have been committed and the accused persons took part are relevant. For the said purpose, it is necessary to prove that the propounders had expressly agreed to it or caused it to be done, and it may also be proved by adduction of circumstantial evidence and/ or by necessary implication. [See Mohammad Usman Mohammad Hussain Maniyar and Ors. v. State of Maharashtra2. In Mohmed Amin @ Amin Choteli Rahim Miyan Shaikh and Anr. v. C.B.I. through its Director 3 after taking recourse to law governing the field, the Hon'ble Supreme Court noted thus:
"55. The principles which can be deduced from the above noted Judgments are that for proving a charge of conspiracy, it is not necessary that all the conspirators know each and every details of the conspiracy so long as they are co-participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy."
(Emphasis Supplied)
183. The Hon'ble Apex Court in Esher Singh Vs. State of A.P.4
2. (1981) 2 SCC 443]
3. 2008 (14) SCALE 240
4. 2004 (11) SCC 585 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 146 of 263 :: 147 ::
has held as under :
"A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused".
184. Ld. Counsels for the accused vociferously contended that prosecution has failed to adduce any direct evidence to substantiate that there was any meeting of mind between the public servant and the other accused and even amongst private accused. It is further submitted that in the absence of any direct evidence, the conspiracy could only be established by the prosecution on the basis of such circumstantial evidence as to form a chain of events, leading to an irresistible conclusion about guilt of the accused but the prosecution has failed to adduce any such circumstantial evidence.
185. This Court has considered the submissions advanced by Ld PP for CBI and Ld Defence Counsels and has perused the law laid down by Hon'ble Apex Court in the precedents relied upon by Ld. Defence Counsels. There is no denying the fact that Hon'ble Apex Court while holding that the offence of conspiracy is committed in secrecy and can be proved only by circumstantial evidence, has held that the circumstances should be proved, beyond reasonable doubt, leading to the guilt of the accused. For the purposes of considering the conduct of the accused so as to deduce about their complicity CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 147 of 263 :: 148 ::
with the conspiracy, a "rule of caution" has been laid down by Privy Counsel in case reported as AIR 1954 PC 140 as under: -
"In a joint trial care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against others".
186. These words of caution were reiterated by Hon'ble Apex Court in State vs Nalini5. The relevant portion is reproduced hereunder:-
"There is a need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that "there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy".
187. Being aware of the fact that for the purposes of appreciating the evidence on record with respect to the allegations of conspiracy, the circumstances in which the accused acted, their actions and mannerism are required to be considered, which this court shall look into, mindful of the words of caution laid down by Hon'ble Apex Court in above referred precedents.
188. Ld. Public Prosecutor made an endeavour to invoke Section 5 1999 (5) SCC 253 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 148 of 263 :: 149 ::
10 of Indian Evidence Act contending that all the conspirators should be made constructively liable for the substantive offences committed, pursuant to the conspiracy on the basis of the "Principle of Agency". He contended that the public servant had entered into a conspiracy with the private persons, therefore the acts done by the private persons, pursuant to the conspiracy, in contemplation of law, should be treated as committed by each one of them, therefore all of them should be held responsible and liable for the same.
189. I have considered the submissions advanced by Ld. Public Prosecutor. In order to appreciate the same, it is pertinent to make mention of Section 10 of Indian Evidence Act, which reads as under:
"SECTION 10 - THINGS SAID OR DONE BY CONSPIRATOR IN REFERENCE TO COMMON DESIGN -
Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it".
190. Bare perusal of this Section makes it evident that there is no such deeming provision in it, as has been contended by Ld. CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 149 of 263 :: 150 ::
Prosecutor. No doubt, Section 10 rests on the 'Principle of Agency', but it lays down only a rule of relevancy. As per the provisions of this Section, anything done or said by one of the conspirators in reference to the common intention becomes "relevant fact" as against each of the conspirators, to prove two things : -
(i) Existence of the conspiracy ; and
(ii) That, they were party to this conspiracy.
191. This has been held so by Privy Counsel in case titled Mirza Akbar vs. King Emperor6. This interpretation has been followed by Hon'ble Apex Court in catena of decisions. Hon'ble Mr. Justice Jagannath Shetty had analyzed this Section in case titled Kehar Singh & Ors. (supra), as under: -
"From an analysis of the section, it will be seen that Section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his co-conspirator. Once such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it."
(emphasis supplied)
192. In view thereof, distinction was made between the conspiracy 6 AIR 1940 PC 176 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 150 of 263 :: 151 ::
and the offence(s) committed, pursuant to the conspiracy. It is only in order to prove the existence of conspiracy and parties to the conspiracy, that this rule of evidence, can be put in service. It is settled law that conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy.
193. Accordingly, this court does not find any merits in the contentions advanced by Ld. Public Prosecutor as the "Theory of Agency" cannot be extended thus far, that is to say, to hold all the conspirators guilty of actual offence(s) committed in execution of common design, if such offence(s) were committed by one of them, without participation of others. Whether or not, conspirators will be liable for substantive offence other than the conspiracy and if so, to what extent, has to be proved on record by the prosecution on the basis of evidence which shall be adverted to hereinafter. However, before going that far, this Court would hasten to add that prosecution has first to establish that all the accused persons facing trial, were in fact party to the alleged conspiracy with which they have been charged.
194. As noted above, the case of the prosecution is that all the CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 151 of 263 :: 152 ::
accused persons conspired amongst themselves to defraud the Bank by way of forging cheque and initially only three accused, namely, A-3 Mohd. Nauman, A-4 Amit Aggarwal and A-9 Jamir Ahmad hatched conspiracy at three different hotels in Delhi. To substantiate the aforesaid allegations, prosecution has relied upon testimony of PW-39 showing that A-4 Amit Aggarwal stayed at Hotel Nancy, Paharganj. The said witness as Manager of the aforesaid Hotel produced extract of four pages of Guest Register of the aforesaid hotel showing the entries of A-4 Amit Aggarwal at serial nos. 4396 and 4613, which were entered by A-4 Amit Aggarwal himself. As per the said entries, arrival date and time has been recorded as '01.10.2008 at 08:00 am' and '26.11.2008 at 08:50 am'. PW-39 identified A-4 Amit Aggarwal in the court stating that A-4 probably stayed in the said hotel more than 15 - 20 times. PW-39 further deposed that on 18.04.2009, CBI official had brought one person to the hotel, who disclosed that A-4 Amit Aggarwal stayed in the hotel.
195. During the cross-examination by Ld. Counsel for A-4, PW-39 stated that whenever any guest used to stay at the hotel, photocopy of ID proof would be taken. However, there was no photocopy of ID proof along with the extract of Guest Register (Ex. PW39/A). It is contended by Ld. Counsel for A-4 Amit Aggarwal that since no identity proof of accused persons required to be taken by the hotel, was produced by the witness, the prosecution has failed to prove CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 152 of 263 :: 153 ::
that A-4 Amit Aggarwal stayed in the said hotel on the aforesaid two occasions. The contention of the Ld. Counsel for A-4 Amit Aggarwal is without any merit, as the testimony of the aforesaid witness is supported by the contemporaneous document showing entries in the name of A-4 Amit Aggarwal at the said hotel in his handwriting as stated by the witness and the said fact was not disputed by A-4 Amit Aggarwal. No suggestion was given to the witness that the said entries were not in his handwriting. Thus, the prosecution has succeeded in proving that A-4 Amit Aggarwal stayed at the aforesaid hotel on 01.10.2008 and 26.11.2008.
196. Now coming to another hotel, i.e., Hotel Pallai Palace, where A-4 Amit Aggarwal stayed as per the case of prosecution, PW-40 Deepak Kumar deposed that A-4 Amit Aggarwal had stayed in the aforesaid hotel only once and he identified him in the court. He has proved on record extract of Guest Register (Ex.PW40/A), bearing his signatures at serial number 789 showing the entry of A-4 Amit Aggarwal. As per the said entry, A-4 Amit Aggarwal stayed at the hotel on 19.01.2009. The witness has further proved on record the photocopy of identity proof (Ex.PW40/B), which was taken at the time of stay of A-4 Amit Aggarwal in the said hotel. In the cross-
examination, nothing has come on record to discredit the testimony supported by the contemporaneous document of non-stay of A-4 Amit Aggarwal in the said hotel and thus, the prosecution has CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 153 of 263 :: 154 ::
succeded in proving the stay of A-4 Amit Aggarwal at the aforesaid hotel on 19.01.2009.
197. Further, case of the prosecution with regard to stay of A-4 Amit Aggarwal is that he also stayed at Hotel Click International, Paharganj and during his stay at the said hotel, one Sobir Singh Rathi met him along with A-3 Mohd. Nauman and A-9 Jamir Ahmad. The prosecution failed to prove any documentary evidence showing stay of A-4 Amit Aggarwal at the aforesaid hotel. Sobir Singh Rathi, who was examined as PW-10 did not support the case of prosecution and testified that he never met A-4 Amit Aggarwal at Paharganj at any point of time and he stated that he met him anyone.
When the aforesaid witness was confronted with his statement recorded under Section 161 Cr.P.C., he denied that he had ever stated to IO that he had met two accused along with third one having burn scar at Hotel Click International. He has also denied suggestion that the aforesaid accused persons discussed amongst themselves in his presence about forgery of cheques to withdraw money from the Banks. PW-60 had also deposed that he had not conducted any inquiry in respect of PW-10 Sobir Singh Rathi having met with A-4 Amit Aggarwal in a Hotel at Railway Road, Ghaziabad and there is no document showing that Sobir Singh Rathi had met A-4 Amit Aggarwal in a Hotel at Railway Road, Ghaziabad. IO/ PW-60 admitted that PW-10 Sobir Singh Rathi was a Constable of Delhi CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 154 of 263 :: 155 ::
Police, however, he showed his ignorance as to whether he had ever been on deputation in CBI. He denied the suggestion that Sobir Singh Rathi and Praveen Kumar Khurana were accused but he cited them as Prosecution's witnesses deliberately for ulterior motive. In the absence of any positive evidence, documentary or oral, it can safely be concluded that prosecution has failed to establish that A-4 Amit Aggarwal stayed at Hotel Click International.
198. In view of the aforesaid, though the prosecution has succeeded in proving that A-4 Amit Aggarwal stayed at two different hotels i.e. Hotel Nancy and Hotel Pallavi, yet the prosecution has failed to prove that A-3 Mohd. Nauman and A-9 Jamir Ahmad had ever met him in the aforesaid hotels, as no evidence, oral or documentary, was adduced by the prosecution to prove the presence of A-3 Mohd. Nauman and A-9 Jamir Ahmad at the aforesaid hotels during the stay of A-4 Amit Aggarwal in the said hotels.
199. Further case of the prosecution is that in pursuance to the said conspiracy, A-4 Amit Aggarwal obtained a blank Cheque Book after having further conspired with A-6 Chandra Bhan Singh, who was working as Clerk-cum-Cashier in Lal Bagh Branch of PNB. A-6 Chandra Bhan Singh had allegedly also made available photocopies of cheques issued from the Bank account of M/s SIFCL and M/s CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 155 of 263 :: 156 ::
BCC bearing the signatures of respective authorised signatories for practicing their signatures in order to forge the cheque in their names. IO was asked specific question as to whether he had placed any document or evidence on record to substantiate that A-4 Amit Aggarwal was to secure blank cheques of Bank, printing and preparation of forged cheques issued from different Bank Accounts having substantial credit balance and in his reply to the said question, he deposed that during interrogation of A-4 Amit Aggarwal, role of A-6 Chandra Bhan Singh and Ganesh Lal surfaced and based upon the said information furnished by A-4 Amit Aggarwal, searches were conducted in the premises of A-6 Chandra Bhan Singh and Ganesh Lal and Cheque Book which was missing from PNB Lal Bagh Branch, Lucknow was seized along with other documents having specimen signatures of different account holders from the possession of A-5 Ganesh Lal. He further deposed that on the basis of disclosure statement of A-4 Amit Aggarwal, maker of stamp Sh. Prit Pal Singh (PW-4) was identified and stamps of account holders were recovered from the premises of A-5 Ganesh Lal during search.
200. In order to substantiate the allegations that A-4 Amit Aggarwal was in touch with or knew A-6 Chandra Bhan Singh, the prosecution has placed heavy reliance on contact details retrieved from the mobile phone of A-4 Amit Aggarwal wherein, phone CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 156 of 263 :: 157 ::
numbers allegedly being used by A-6 Chandra Bhan Singh were found. PW-66 Sh. M. Krishna who was the Government Examiner of the electronic evidence, tendered report [Ex.PW66/A] in his testimony showing that he examined mobile phones [MarkQA6 and MarkQA7] and as per the said report, one mobile number and one landline number, were found in the contact list of one of the mobile phones. The said mobile phone has been attributed to A-4 Amit Aggarwal as argued by Ld. PP for CBI. However, the prosecution has failed to prove that said mobile or any mobile phone was ever seized during investigation and the said mobile phone was owned by A-4 Amit Aggarwal. Furthermore, the prosecution failed to bring any evidence or material to establish that the said contact numbers attributed to A-6 Chandra Bhan Singh in the said mobile phone were being used by him. Neither CAF nor CDR was obtained or produced by IO in this regard. Thus, the prosecution has failed to prove that A-4 Amit Aggarwal and A-6 Chandra Bhan Singh were in contact with each other at any point of time. The prosecution has not produced any material or evidence to establish any nexus between A-4 Amit Aggarwal and A-6 Chandra Bhan Singh.
201. Prosecution has also failed to prove by way of any direct evidence that the accused were in contact with one another during period of forgery and presentation of cheques in question. IO of the CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 157 of 263 :: 158 ::
case, Sh. C.S. Prakash Narayan (PW-60) testified that he had ascertained CDRs from Mobile Phones of A-4 Amit Aggarwal, A-6 Chandra Bhan Singh, A-7 S.K. Bhargava, A-3 Mohd. Nauman, A-1 Mukesh Jain and A-2 Nipun Bansal but could not find any incriminating material in CDRs of Mobile Phones of the aforesaid accused and, therefore, did not file the said CDRs with the charge- sheet.
202. As per case of the Prosecution, the aforementioned eight cheques were taken from two Cheque Books and counterfeit stamps of three customers of PNB Lal Bagh Branch, Lucknow were used.
The cheque No. TSP 786698 dated 16.01.2009 for sum of Rs.65 lakhs favouring M/s AHS; cheque No. TSP 786680 dated 23.02.2009 for sum of Rs.40 lakhs favouring M/s. BTC; two cheques No. TTT 793699 dated 02.03.2009 for sum of Rs.4,50,000/- and cheque No. TTT 793697 dated 04.03.2009 for sum of Rs.3.65 lakhs purportedly issued from the Bank account of M/s BCC; are having seal impression of M/s BCC. The cheque bearing No. TTT 512776 dated 17.03.2009 for sum of Rs.1,58,70,000/- purportedly issued from the Bank Account of M/s UPSRTC favouring M/s LPO, is having seal impression of UPSRTC. The cheques bearing No. TTT 512799 dated 19.03.2009, TTT 512780 dated 18.03.2009 and TTT 512796 dated 18.03.2009 for sum of Rs.55.06 lakhs and Rs.51.65 lakhs, respectively were purportedly issued from the Bank CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 158 of 263 :: 159 ::
Account of M/s SIFCL favouring M/s BMPL and are having seal impressions of M/s SIFCL. This Court will first examine source of two Cheque Books and stamps.
203. Two cheques were forged from the cheque book (Ex.PW12/C) bearing 'TSP' series and five cheques from the cheque book having 'TTT' series. One cheque for an amount of Rs. 65 lakh was not recovered. So far as the cheque book having 'TSP' series is concerned, the case of the prosecution is that the said cheque book along with photocopies of the cheques reflecting the signatures of authorised signatories of SFICL and BCC were stolen by A-6 Chandra Bhan Singh from PNB Lal Bagh Branch and handed over to A-4 Amit Aggarwal. In order to prove the said fact, the prosecution has examined PW-5 Ms. Sadhna Srivastava to establish that A-6 Chandra Bhan Singh was having access to the aforesaid cheque book and the photocopies of cheques. However, PW-5 in her deposition testified that cheque book in the Bank used to be in the exclusive control and custody of herself and Sh. Dave and they used to have one key each with them along with the password. She further depposed that one lot of ten cheque books used to be taken out at one point of time from their joint custody.
She further testified that A-6 Chandra Bhan Singh who was employed in that Branch was having no authority to issue cheque book as the aforesaid double locking system was not accessible to CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 159 of 263 :: 160 ::
him. She had further testified that cheque books taken out from the joint possession of herself and Sh. Dave would not be delivered to the custody of A-6 Chandra Bhan Singh. The Prosecution has also examined Deepak Dave as PW 12, who in his testimony deposed that the cheques bearing No. TSP 793201 to 793300 have been shown as 'destroyed' in the computer system and entry (Ex.PW12/B) in this regard was made by Sh. R. K. Tandon, the then CTO (Computer Terminal Operator). He identified the Cheque Book of the aforesaid series from the judicial record. Even this witness did not state that A-6 Chandra Bhan Singh was having any access to the cheque books in the Bank affording him opportunity to steal or remove the same from Bank. IO/ PW-60 has deposed that A-6 Chandra Bhan Singh was working on 'May I Help' counter and an official deputed at the said counter neither remained in custody of any document nor he was custodian of any document of Bank. IO/ PW-60 in his testimony admitted that no particular date of missing of the Cheque Book was ascertained during investigation. He deposed that during the course of investigation no incriminating document/article/material was recovered or seized from the custody of A-6 Chandra Bhan Singh or at his instance. He further deposed that he did not collect any record from which time upto which time, A-6 Chandra Bhan Singh was on duty on 26.02.2009 nor recorded any statements of Bank officials.CC No. 131/2019
CBI Vs. Mukesh Kumar Jain & Others. Page No. 160 of 263 :: 161 ::
204. In view of the aforesaid testimony of PW-5 and PW-12, it cannot be established that the cheque book in question was stolen/ procured by A-6 Chandra Bhan Singh and handed over to A-4 Amit Aggarwal as prosecution has failed to establish that A-4 Amit Aggarwal and Chandra Bhan Singh were ever in contact with each other or that A-6 Chandra Bhan Singh made him available the Cheque Book.
205. So far as another cheque book is concerned, as per the case of the prosecution, the said cheque book was obtained by A-3 Mohd.
Nauman from PW-9 Sh. Deepak Sharma, who testified that he was having current account in the name of his proprietorship firm, Ganesh Courier at PNB, Darya Ganj and during the course of his courier business, he became familiar with A-3 Mohd. Nauman who used to get courier parcelled in the ordinary course of his export business. PW-9 Deepak Sharma opened the aforesaid current account on 22.09.2007 and he got issued a new cheque book in the name of his firm on 07.02.2009, and, thereafter, handed it over to A-3 Mohd. Nauman as he wanted to look into each of the cheque numbers. The said witness further deposed that A-3 Mohd. Nauman did not disclose him the purpose of having the cheque book and subsequently when he asked for the return of the cheque book, A-3 Mohd. Nauman kept on ensuring him to return. However, he did not return the same. He further deposed that in the last week of March, CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 161 of 263 :: 162 ::
2009, he came to know that the cheque book had been misused by A-3 Mohd. Nauman and when he confronted him, he told him that it had been used by somebody else.
206. The testimony of this witness PW-9 Deepak Sharma does not inspire confidence as the prosecution has failed to establish that PW- 9 Deepak Sharma was having acquaintance with A-3 Mohd.
Nauman for considerable period as he himself in his cross- examination stated that A-3 Mohd. Nauman had booked one courier only and that too was not seized by CBI officials to establish any link between A-3 Mohd. Nauman and the said witness. He further expressed his inability to produce the said register showing booking of courier by him. IO/ PW-60 deposed that Deepak Sharma had told him that A-3 Mohd. Nauman was residing in the area of Chandni Mahal, Old Delhi, however, complete particulars were not given by him and subsequently, on the basis of information given by A-2 Nipun Bansal, through other sources and through PS concerned, he was able to locate the residence of A-3 Mohd. Nauman. He admitted that no disclosure statement of A-3 Mohd. Nauman was recorded. In the aforesaid facts and circumstances, testimony of the witness is not credit worthy as it is naive to think that PW-9 Deepak Sharma dealing in the courier business, had simply handed over the cheque book to A-3 Mohd. Nauman whose address he was not aware of and who had not given him any explanation for taking it from him. Thus CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 162 of 263 :: 163 ::
the prosecution has failed to prove by way of any direct or circumstantial evidence that the cheque book was obtained by A-4 Amit Aggarwal from A-6 Chandra Bhan Singh and other cheque book by A-3 Mohd. Nauman from PW-9 Sh. Deepak Sharma.
207. Further case of the Prosecution as noted above is that to get these cheques forged, stamps of SIFCL, BCC and UPSRTC were used on different cheques and the said stamps were recovered from the premises of A-5 Ganesh Lal along with cheque book, photocopies of the cheque bearing signatures of authorised signatories of SIFCL, BCC and UPSRTC. The Prosecution has relied upon the testimony of PW-49 Inspector Bodhraj Hans who deposed that on 24.04.2009, after having been authorised by Investigating Officer Inspector C.S. Prakash Narayan, he visited office premises of A-5 Ganesh Lal in Indira Nagar, Lucknow along with two independent witnesses and seized cheques, rubber stamps (Ex.P1 to Ex.P5), computer, printer/scanner from the office of A-5 Ganesh Lal situated at first floor, Indra Nagar. The independent witness PW-44 Pramod Kumar Gupta was also examined who corroborated his testimony and deposed that the cheque book (Ex.PW12/C) containing 53 cheques and other items as mentioned in search list (Ex.PW44/A) were recovered in his presence. In his cross-examination conducted by A-3 Mohd. Nauman and Ganesh Lal, PW-49 deposed that the aforesaid material was seized from the CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 163 of 263 :: 164 ::
computer drawer of the office table from the office of accused and the said drawer was not locked and accused was found sitting on the chair behind the table. He denied the suggestion that Cheque Book, seals, visiting card cover containing name and address of AD Advertising were in envelope in the drawer of A-5 Ganesh Lal. He further deposed that A-5 Ganesh Lal did not co-operate during the search and he did not disclose himself that material was in the said drawer and they had to waste three hours in search of premises. He denied that he was having prior information about the location of the aforesaid material containing in envelope. However, in his cross- examination conducted by A-5 Ganesh Lal, PW-44 showed his ignorance as to the location from where the aforesaid documents mentioned in the seizure memo were recovered by CBI Officials. He expressed his ignorance whether the said documents were recovered from one place or from different places in the same place, however, he identified A-5 Ganesh Lal in the Court. He admitted the suggestion given to him that A-5 Ganesh Lal co-operated during the search, however, he denied the suggestion that CBI Officials did not recover any blank cheque nor any rubber stamp. He further denied the suggestion given to him that the aforesaid items were not recovered from the said premises of A-5 Ganesh Lal and same were planted upon him.
208. Cheque book bearing series TSP793201 to 793300 recovered CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 164 of 263 :: 165 ::
from the premises of A-5 Ganesh Lal was shown to PW-12 Sh. Deepak Dave, Manager, PNB, Lal Bagh, Lucknow and he confirmed that the cheque book in question (Ex.PW12/C) was the same cheque book, which was shown as 'lost & missing' and shown to be 'destroyed' in the system vide entry (Ex.PW12/B). In addition to aforesaid cheque book, rubber stamps of M/s BCC, SIFCL and UPSRTC were also recovered from the premises of A-5 Ganesh Lal and the impressions from the said stamps were proved to be affixed on the cheques in questions.
209. Though the independent witnesses were suggested in cross-
examination that the said items were not recovered from the premises of A-5 Ganesh Lal and the same were planted upon him yet, no such suggestion was given to PW-49. Rather, it was suggested that the said items were kept in an envelope in his drawer. When the aforesaid recovery articles were put to A-5 Ganesh Lal in his statement under Section 313 Cr. P.C., he admitted that the search was conducted at his premises on 24.04.2009 by PW-49 in the presence of PW-44 Sh. Pramod Kumar Gupta and Sh. Y.P. Singh and on being put to him that during the said search, items reflected in Ex.PW44/A i.e. the search list running into six pages were recovered from his premises, his answer was, "I have nothing to say". In answer to question no. 210, A-5 Ganesh Lal stated that he was in no way aware of the contents of the envelope, which was CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 165 of 263 :: 166 ::
seized from his drawer. He further stated that the said drawer remained unlocked all times, open to all being reception drawer. The accused was put each items recovered from his premises in his statement under Section 313 Cr. P.C. and his answers in respect of the aforesaid items was that he had nothing to say. Finally, he has simply stated that he was innocent and was falsely implicated in this case. However he failed to disclose the motive of his false implication.
210. Having analysed the testimonies of PW-44 and PW-49 and answers of A-5 Ganesh Lal to questions put to him in his statement under Section 313 Cr. P.C. this court has no hesitation to conclude that the incriminating articles/items mentioned in search list (Ex.PW44/A) were recovered from the premises of A-5 Ganesh Lal and there is no reason to doubt that he was not conscious of such possession as sought to be suggested by him.
211. Further case of the prosecution is that A-3 Mohd. Nauman and A-4 Amit Aggarwal got arranged the aforementioned counterfeit seals of M/s BCC, SIFCL and UPSRTC from the shop under the name and style of Swarn Stamps Works situated at Jhandewalan.
PW-4 Sh. Pritpal Singh was examined on 15.09.2010 and in his testimony, he deposed cheque No. 786680 in favour of M/s BTC for Rs.40 lakhs bears the rubber stamp of M/s BCC which was got CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 166 of 263 :: 167 ::
prepared from his shop. In his cross-examined by Ld. Counsel for A-1 Mukesh Jain and A-8 Benu Jain, he deposed that he had not been shown the rubber stamp prepared by him and no mark of identification was put on the rubber stamp. Thereafter, the court record reveals that he was recalled for further examination on 22.03.2012 and this time in his examination-in-chief, PW-4 deposed that on 24.04.2009, CBI had come to his shop along with two persons, one having burnt face and, thereafter, he identified A-3 Mohd. Nauman and A-4 Amit Aggarwal stating that they were same persons, who were brought to his shop by CBI. He further deposed that those persons had got prepared stamps/ seals from his shop and, thereafter, he identified five stamps stating that those were prepared by him for A-3 Mohd. Nauman and A-4 Amit Aggarwal. In his cross-examination conducted on behalf of A-3 Mohd. Nauman, he testified that six months back also, his statement was recorded in the Court. He further deposed that his statement was recorded by CBI as well. Further, in the said statement, he had not described the physical description of the said two persons who were brought to his shop by CBI. He deposed that he had not participated in TIP for identification of two persons and accused persons were shown to him second time in the office of CBI.
212. In the facts and circumstances and upon analysis of the testimony of PW-4, the identification of A-4 Amit Aggarwal and A-3 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 167 of 263 :: 168 ::
Mohd. Nauman by him do not inspire confidence of this Court. Both the aforesaid accused persons were taken to Jhandewalan on two different dates to identify the shop where from stamps were allegedly got prepared by them. A-3 Mohd. Nauman was taken to the said shop on 22.04.2009 while A-4 Amit Aggarwal on 23.04.2009 in pursuance to their respective disclosure statements. It would have been appropriate for the investigation agency to get identified at least A-4 Amit Aggarwal by PW-4 in Test Identification Parade after A-3 Mohd. Nauman had already identified the shop.
Moreover, the accused persons were again shown to the witness in CBI office and, thereafter, in the court when he was examined on 15.09.2010. However, on the said day for the reasons best known to the prosecution, the accused persons were not confronted with the witness for identification.
213. Aforesaid facts and circumstances raises serious doubts with regard to the identification of the aforesaid accused persons by PW-
4. The prosecution has not given any explanation as to why and under what circumstances PW-4 was re-examined on 22.03.2012 without seeking leave of the court. It is settled law that under ordinary circumstances, it is not necessary or permissible to allow the witness once examined and discharged to be recalled at the instance of a party, for it is expected that the party will interrogated the witness of all material points touching his case. Prosecution has CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 168 of 263 :: 169 ::
failed to explain any exceptional circumstances to recall PW-4 rendering identification of accused persons namely, A-4 Amit Agarwal and A-3 Mohd. Nauman by PW-4 a very weak piece of evidence. The Hon'ble Supreme Court in "Malkhan Singh & Ors. Vs. State of M.P.7" while considering evidentiary value of the identification of the accused by the witness in the court without holding the Test Identification Parade in the course of identification has held under :-
"7. ........The evidence of mere identification of the Accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe Rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the Accused who are strangers to them, in the form of earlier identification proceedings. This Rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the Accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.
7. (2003) 5 SCC CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 169 of 263 :: 170 ::
xxxxxxxxxxx It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the persons concerned, if the identification is made for the first time in Court".
(Emphasis Supplied)
214. In "Kannan & Ors Vs. State of Kerala8" the Hon'ble Supreme Court held :-
"...It is well settled that where a witness identifies an Accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observations. The Idea of holding T.I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an Accused for the first time in Court. ..."
(Emphasis supplied).
215. In view of the aforesaid settled law applying to the facts and circumstances under which A-4 Amit Aggarwal and Mohd. Nauman were identified by PW-4, their identification by PW-4 is highly doubtful and cannot be said to be sufficient to prove that these two accused persons got prepared the stamp P-1 to P-5 from PW-4.
216. Now, coming to the identification of rubber stamps (Ex.P1 to
8. AIR 1973 SC 1127 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 170 of 263 :: 171 ::
Ex.P5), A-3 Mohd. Nauman in his disclosure statement (Ex.PW42/B) recorded on 23.04.2009 stated that either in the last week of December, 2008 or in the first week of January, 2009, he along with A-4 Amit Aggarwal had got made rubber stamps of M/s BCC and M/s SIFCL from the Swarn Stamp Works at Jhandewalan and had also identified son of Bhagat Singh, Proprietor of the said shop. He further stated that when Pritpal Singh S/o Bhagat Singh was asked about aforesaid, he stated that he did not maintain the record of the specimen of stamps provided by the customers and the receipt of the same was issued by him on visiting card of the shop. Pritpal Singh further informed that for all the stamps made by him, he had proof in the computer and he checked his record and informed that he had prepared those stemps.
217. Disclosure statement of A-4 Amit Aggarwal was also recorded on 23.04.2009 (Ex.PW42/C) who inter alia stated that A-3 Mohd. Nauman had taken him to Jhandwalan Extension to the shop of stamp maker, whose name and address, he did not recollect.
However, he would identify the shop of the aforesaid stamp vendor from whom stamps of three companies were made if, he was taken to the said area. Thereafter, his disclosure statement was further recorded on 24.04.2009 wherein, A-4 Amit Aggarwal identified aforesaid shop and disclosed on the similar lines as A-3 Mohd. Nauman with regard to making of the aforesaid stamps from the CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 171 of 263 :: 172 ::
shop of Swarn Stamps Work. As per the said statement, Pritpal Singh again maintained that he did not have any record of the specimen and stamps provided by the customers and further stated that for all the stamps made through computer, he had proof of the same in the computer and, thereafter, verified the same from computer and informed that he had prepared the said stamps. However, besides the aforesaid disclosure statement, there is nothing to prove that aforesaid stamps were prepared by Pritpal Singh at the instance of A-3 Mohd. Nauman and A-4 Amit Aggarwal. Prosecution has not given any explanation as to why IO failed to collect the record from the computer from which Pritpal Singh verified that those stamps were in fact, manufactured by him. In his testimony, PW-60/ IO has stated that neither any computer nor any equipment was seized from Pritpal Singh from where the stamps were made. He had neither obtained soft copy of those stamps nor any explanation was given by him as to why soft copies from the said shop were not seized by him. The entire case of the prosecution with regard to allegation that stamps in question were got made by A-3 Mohd. Nauman and A-4 Amit Aggarwal from the shop of Swarn Stamps Work through Pritpal Singh reflects complete lack of further efforts of IO to investigate and find concrete evidence on the basis of the said statements. The proceedings at the aforesaid shop were conducted by PW-62 Sh. Ajit Singh, Insp. of CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 172 of 263 :: 173 ::
Police, who deposed that on 23.04.2009, A-3 Mohd. Nauman in police custody guided him to Jhandewalan to M/s Swarn Stamps Work, but despite their efforts to search the record w.r.t. preparation of rubber stamps in question, no record could be located from the said place. The witness has further stated that an independent witness called in the office his S.P. had accompanied him to the said place. The said independent witness was examined as PW-42. However, he did not depose that A-3 Mohd. Nauman or A-4 Amit Aggarwal had taken them to M/s Swarn Stamps Work though, he admitted that a memo was prepared at the shop. The said witness had also testified that he was not handed over any disclosure statement of A-3 Mohd. Nauman in respect of him leading to the said shop. He further deposed that he did not record any statement of owner/ employee of M/s Swarn Stamps Work.
218. PW-4 in his testimony deposed that there was no distinguishable marks on the said rubber stamp shown to him on the said day and admitted that such rubber stamps could also be prepared and bought from the other market. Furthermore, the witness has failed to produce any receipt showing the preparation of the said stamps by the accused persons from his shop. Though, he stated that stamps are computer generated however, no record has been produced either by the witness or by prosecution showing that the impression of stamps were available in the computer of PW-4 in CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 173 of 263 :: 174 ::
the soft form. In the absence of having any distinguishable marks on the rubber stamps admitted by PW-4, it unsafe to rely upon his testimony to the effect that rubber stamps were got prepared either from his shop or by the accused persons. The prosecution has failed to prove beyond reasonable doubt that A-3 Mohd. Nauman and A-4 Amit Aggarwal got prepared stamps from the aforesaid shop, namely, Swarn Stamps Works.
219. However, the fact remains that the stamps in question were recovered from the possession of A-5 Ganesh Lal and thus it has to be examined whether A-5 Ganesh Lal had forged and fabricated the cheques in question, used and presented the same in conspiracy with other accused persons. To properly appreciate the prosecution's case, this court must deal with all the eight transactions of the aforesaid cheques one by one in some details.
Cheque bearing No. TSP 786698 dated 16.01.2009 for an amount of Rs. 65 lakhs favouring M/s AHS.
220. The cheque in question is not on record as the same has not been recovered, however transfer vouchers (Ex.PW2/A to Ex.PW2/D) in respect of the aforesaid cheque of Rs.65 lakhs, were seized by IO vide seizure memo (Ex.PW11/A). In respect to the CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 174 of 263 :: 175 ::
aforementioned cheque, the allegations of the prosecution are that the said cheque was taken out from the cheque book stolen by A-6 Chandra Bhan Singh in connivance with A-4 Amit Aggarwal and thereafter furnished to A-5 Ganesh Lal who forged and fabricated it showing to have been issued from the Bank account of M/s BCC in favour of M/s ASH. The said cheque book was recovered from the residence of A-5 Ganesh Lal. The said cheque book was identified and proved by PW-12 Deepak Dave, Sr. Manager, PNB, who deposed that as per the Cheque Book Issue Register (Ex.PW12/A), cheque bearing number TSP 793201-793300 was shown as 'destroyed' in the computer system of the Bank. Further case of the prosecution is that the aforesaid cheque in question was made available to A-2 Nipun Bansal by A-3 Mohd. Nauman and A-4 Amit Aggarwal and A-2 Nipun Bansal provided them the details of the Bank account of AHS maintained with PNB, Rani Bagh Branch and, thereafter, the said cheque was presented by A-2 Nipun Bansal accompanied by A-3 Mohd. Nauman, A-4 Amit Aggarwal, Ravi Kumar Singh and Ashok Kumar Gupta in PNB, Rani Bagh on 16.01.2009. The said Bank account in the name of M/s AHS was opened by Mohd. Yusuf as its proprietor with the assistance of his employer, Ashok Kumar Gupta for rotation of funds for income tax purpose with on commission basis at the instance of Ravi Kumar Singh, who was working HDFC Bank and was friend of A-2 Nipun CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 175 of 263 :: 176 ::
Bansal. The said cheque was first presented at Rani Bagh Branch of PNB after A-2 Nipun Bansal filled up the pay-in-slip. However, the Bank returned the same with remarks 'signatures did not tally'. Further, case of the prosecution is that another attempt was made on 19.01.2009 by A-2 Nipun Bansal to encash the cheque by depositing it in PNB, Gujranwala Town when A-3 Mohd. Nauman and A-4 Amit Aggarwal accompanied him and presented the cheque for clearing. Initially, the said cheque was passed however, within a minute, the transaction was reversed and the cheque was returned to A-2 Nipun Bansal on the ground that the signatures did not tally.
Thus the case of the prosecution is that A-2 Nipun Bansal, A-3 Mohd. Nauman, A-4 Amit Aggarwal, A-5 Ganesh Lal and A-6 Chandra Bhan Singh were in conspiracy with one another to encash the said cheque.
221. Since the cheque in question has not been recovered from A- 2 Nipun Bansal to whom cheque was stated to have been returned by Bank official, the prosecution is relying upon the testimonies of witnesses and material such as debit & credit vouchers to prove the aforesaid allegations in respect to cheque in question. As per the charge-sheet, the said cheque of Rs.65 lakhs was first deposited in PNB Rani Bagh Branch, Delhi by A-2 Nipun Bansal after filling up pay-in-slip for crediting the said amount in the Bank account of M/s AHS and at that time, he was accompanied by Mohd. Yusuf CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 176 of 263 :: 177 ::
(account holder), Ravi Kumar Singh, Ashok Kumar Gupta, A-3 Mohd. Nauman and A-4 Amit Aggarwal however, the Bank returned the said cheque with remarks that signature did not tally. Prosecution has relied upon the testimony of PW 48 Ajay Kumar Gupta to prove aforementioned allegations. In the charge-sheet, name of Ajay Kumar Gupta is not cited anywhere with regard to presentation of cheque in question, however, one Ashok Kumar Gupta has been mentioned being one of the persons accompanying A-2 Nipun Bansal. The Prosecution has nowhere clarified that Ajay Kumar Gupta and Ashok Kumar Gupta are the same and one person, however, his testimony is being appreciated, in the facts and circumstances of the aforesaid alleged transaction of presentation of the cheque of Rs.65 lakhs in his presence. Ajay Kumar Gupta deposed that the said cheque was deposited by one Ravi Kant Singh in the Bank Account of Mohd. Yusuf in his presence. In the charge- sheet, no person with the name of Ravikant Singh is cited being the person who was present during the time of transaction of the aforesaid cheque, however, name of Ravi Kumar Singh is there. Prosecution has not clarified that 'Ravi Kumar Singh' and 'Ravikant Singh' are the same and one person. Moreover, in the charge-sheet, the cheque is stated to have been deposited by A-2 Nipun Bansal while the said witness Ajay Kumar Gupta deposed that the cheque was deposited by Ravikant Singh. More further, it is not clear from CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 177 of 263 :: 178 ::
his testimony as to in which Branch, the cheque was attempted to be encashed in his presence. Ld. PP for CBI did not ask any explanatory question from the witness in this regard. Thus there is no oral testimony of any witness to prove that the cheque in question was presented by A-2 Nipun Bansal in Rani Bagh Branch of PNB.
222. Now it is to be examined if there is any other material before this Court to prove the said fact. The Court can take judicial notice of the process in the Bank with regard to presentation and encashment of the cheque. As per the Banking practice, if the cheque presented in the Bank is a 'Self Cheque', the cheque is encahsed in favour of bearer and cash is handed over to him, however, in case the cheque is an 'A/c Payee Cheque', it is deposited in the Bank through a pay-in-slip and after verification, amount mentioned in the cheque is transferred in the Bank Account of payee. If there is any discrepancy in a cheque with regard to signature, amount, figures etc, the cheque is returned along with memo with relevant remarks/reasons for returning the same and pay-in-slip is retained with the Bank. In the present case, as per the case of the Prosecution, the cheque in question was an 'A/c Payee Cheque' issued in favour of M/s AHS and as such if the signature of the drawer was not found matching with signature available with his Bank, same would have been returned with relevant remarks to the CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 178 of 263 :: 179 ::
account payee and pay-in-slip would have been retained by the Bank. The Prosecution has failed to produce any pay-in-slip for deposit of cheque of Rs.65 lakhs in Rani Bagh Branch of PNB. There is no evidence oral or documentary on record to show that any attempt was made by A-2 Nipun Bansal to present the cheque in the said Branch.
223. Further case of Prosecution is that the aforesaid cheque was presented again on 19.01.2009 in Gujrawalan Branch of PNB. The Prosecution has alleged that A-4 Amit Aggarwal, A-2 Nipun Bansal A-3 and Mohd. Nauman had gone to present the cheque in Bank and the cheque was returned as signature did not tally. In order to substantiate the aforesaid allegations, the Prosecution has examined PW-2 Sandeep Begril who was a Customer Care Officer in the aforesaid Branch of PNB. In his testimony, he deposed that on presentation of cheque by A-2 Nipun Bansal (identified in court) as per the debit and credit vouchers (Ex.PW2/A to Ex.PW2/D), Rs.65 lakhs was first debited from the A/c No. 2408002100007070 of M/s BCC and immediately thereafter, the said amount was credited in A/c No. 3072002100082111 of M/s AHS on 19.10.2009. He deposed that credit entry in the account of M/s AHS was made on cheque No. 786698 dated 16.01.2009, however, subsequently, the aforesaid amount of Rs.65 lakhs was credited to the account of M/s BCC from the account of M/s AHS on the same day. The said CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 179 of 263 :: 180 ::
witness has also deposed that he had seen the person who had come to get the cheque transferred in the account of M/s AHS and identified A-2 Nipun Bansal. PW-11 Raj Kumar Jain who was posted as Hall Incharge in the aforesaid Branch of PNB deposed that the cheque for sum of Rs.65 lakhs on 19.01.2009 was displayed on his system for its deletion as the signatures were not tallied but inadvertently, instead of pressing key 'D' on keyboard, he pressed key 'P' resulting transaction being completed and money getting transferred into the account of payee i.e. M/s AHS. He further deposed that he immediately realised his mistake and made reverse entry to recall the said transfer/ credit amount from the account of payee.
224. As per the charge-sheet, the cheque in question was 'A/c Payee Cheque' in the name of M/s AHS, however no pay-in-slip/ deposit slip which would have been retained by the Gujranwala Branch of PNB, was produced by the Prosecution. If pay-in-slip had been retrieved, the Prosecution would have got the same examined in respect to handwriting and signature on the same from GEQD to prove the factum of depositing the cheque by A-2 Nipun Bansal as is the case of the Prosecution. Investigating Officer (PW-60) had admitted that no CCTV footage of PNB Gujrawalan Town was obtained during investigation. Now the only evidence against the A- 2 Nipun Bansal is testimony of the aforesaid two witnesses i.e. PW-CC No. 131/2019
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2 and PW-11 who identified A-2 Nipun Bansal in the Court stating that he was the person who deposited the cheque in question and received the same when signature of the drawer did not match.
Though the said witnesses were not cross-examined by A-2 Nipun Bansal on his identification, however, identification of A-2 Nipun Bansal by the said witnesses raises suspicion as Bank employees communicate with so many persons during the course of their duties and therefore to recollect faces of the persons after two or three years becomes very difficult unless anything unusual happens on the said day. In the present case, Ld. PP for CBI submitted that since the cheque was initially passed and subsequently reversed, this was unusual for the witness to remember the face of A-2 Nipun Bansal. The said argument is far-fetched as this kind of incident usually happens in Banks. Had it been the case of prosecution that upon the signature having not been matched, the Police was called and a scene was created rendering it unusual making identification of A-2 Nipun Bansal possible. In his statement under Section 313 Cr.P.C. when the aforesaid incriminating evidence regarding his identification by the aforesaid two witnesses, were put to A-2 Nipun Bansal, he stated that he had never gone to any Bank on behalf of M/s AHS for getting the amount transferred and PW-2 had identified him at the instance of CBI to save Ajay Kumar Gupta. Even PW-11 admitted in his cross-examination that he had seen A-2 Nipun CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 181 of 263 :: 182 ::
Bansal in the office of CBI. Investigating agency has also not got conducted any test identification parade of A-2 Nipun Bansal. Much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the persons concerned, if the identification is made for the first time in Court [(Re-Malkhan Singh & Ors (Supra)}. Thus, in the facts and circumstances of the present case applying the law cited above while appreciating testimony of PW-4 with regard to identification of A-3 Mohd Nauman and A-4 Amit Aggarwal, testimony of these two witnesses with regard to identification of A-2 Nipun Bansal becomes suspicious failing to inspire confidence of this Court.
225. Now it is also to be examined whether A-2 Nipun Bansal and any other accused in the present case was having any link with Mohd. Yusuf who was the Proprietor of M/s AHS in favour of whom, the cheque in question was drawn. This is necessary to show that in case the cheque had been encashed in Bank Account of M/s AHS, accused would have been benefitted by sharing the amount between them demonstrating that Mohd. Yusuf was the part of the alleged conspiracy. Ld. Counsel for A-2 Nipun Bansal has contended that he was not going to be benefited by crediting the aforesaid amount in the account of M/s AHS as the Prosecution has CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 182 of 263 :: 183 ::
failed to show any link of A-2 Nipun Bansal with the aforesaid account. Per contra, Ld. PP for CBI submits that the Prosecution has adduced evidence showing that the said account was opened at the instance of A-2 Nipun Bansal.
226. Prosecution proved that the Bank account in the name of M/s AHS was opened by Md. Yusuf on 15.01.2009 as reflected from Account Opening Form (Ex.PW43/BA) with an amount of Rs.10,000/- as per the cash receipt voucher (Ex.PW43/B1). The said Mohd. Yusuf was working as the driver with PW-48 Ajay Kumar Gupta as deposed by him. Ajay Kumar Gupta deposed that Mohd.
Yusuf took Rs.10,000/- from him to open a Current Account in his name in PNB Rani Bagh Branch, Delhi. He identified his photograph on the Account Opening Form. As per his testimony, he was having Bank Account in HDFC Bank, Kashmiri Gate, Delhi and got acquainted with Ravikant Singh, employee of the said Bank. He testified that Ravikant Singh told him that for the income tax purpose, he would give him a cheque to deposit in his Bank account and after clearance of the cheque, he had to withdraw the cash to the tune of cheque amount and to give it to him (Ravikant Singh) and in lieu of that, he would get 1% commission. He showed his ignorance as to whether Mohd. Yusuf was doing any such business besides working with him as driver despite the fact that the said current account was opened by him in the name of M/s AHS after CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 183 of 263 :: 184 ::
taking the amount of Rs.10,000/- from him and he had also accompanied him to PNB Rani Bagh branch for opening the account. In his cross-examination, he deposed that the said cheque of Rs.65 lakhs was brought by Ravikant Singh in favour of M/s AHS though he visited the Bank for opening current account of Mohd. Yusuf but it is strange that he was not aware of the introducer of the said Account. The said Mohd. Yusuf was not traced by the investigating agency as his address mentioned in the Bank Account was found fake. Mohd. Yusuf had been working as driver with PW- 48 Ajay Kumar Gupta for three years as deposed by him in his cross-examination but he did not bother to obtain his residential, identity proofs and driving license.
227. The testimony of PW-48 Ajay Kumar Gupta does not inspire confidence in view of his role in getting opened the aforesaid current account in the name of a person who was stated to be his driver for three years but was found having no address of the said person. The role of the said witness along with the said Ravikant Singh is also dubious as Ravikant Singh was not examined by the Prosecution despite his statement under Section 161 Cr.P.C. having been recorded. The testimony of the aforesaid witness is not worthy of any credence.
228. IO/ PW-60 had not conducted any investigation with regard CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 184 of 263 :: 185 ::
to any Current Account in the name of PW-48 Ajay Kumar Gupta or whether he had any Car or engaged or arranged any driver to drive it. He did not examine any employee of PW-48 to verify whether any driver in the name of Mohd. Yusuf was employed by PW-48 Ajay Kumar Gupta. He did not ask Ajay Kumar Gupta to give any identity proof of Mohd. Yusuf. He did not inquire as to why Ajay Kumar Gupta helped Mohd. Yusuf in opening Current Account in the name of M/s AHS in PNB Rani Bagh Branch, Delhi. IO did not ascertain any fact as to who was operating the Bank Account of M/s AHS. He deposed that he could not locate Mohd. Yusuf despite his efforts, however, he did not make any effort to obtain any address of Mohd. Yusuf from PW-48 Ajay Kumar Gupta or his employees. The Prosecution has miserably failed to prove any link of A-2 Nipun Bansal in particular and other accused in general with Bank Account of M/s AHS.
229. Furthermore, as noted above, the case of the Prosecution is that the cheque in question was forged and fabricated by accused persons and used by them however, fact remains that the said cheque is not on record. In the absence of the cheque in question, it cannot be proved by the Prosecution that the cheque not produced, was forged and fabricated by any of the accused persons as the condition precedent for offences under Sections 467 & 477 IPC is 'forgery' i.e. making false documents, by a person dishonestly or CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 185 of 263 :: 186 ::
fraudulently. To attract offence of 'forgery', the conditions as defined under Section 464 IPC are necessary. However, in the present case, as noted above, the alleged forged cheque is not on record.
230. The Hon'ble Delhi High Court in case of Shashi Lata Khanna vs. State of NCT of Delhi and Ors. 9, where a rent note which is stated to have been forged by the accused persons, was never produced in original in the Court, it was held by the Hon'ble Delhi High Court that 'for an offence of forgery of document, it is necessary that original document should have been produced in the Court'. In the said case, accused claimed that 'original rent note was handed over to the Investigating Officer at the time of investigation and it was not deliberately produced by the Prosecution while case of the Prosecution is that the said rent note was never tendered to the investigating agency', the Court observed that 'the fact remained was that the original alleged forged document was never produced before the Court and burden to prove that the said note was forged, was on the Prosecution and is quite heavy'. The Hon'ble Delhi High Court while holding so relied upon the case of K.V.R. Iyyanger vs. State of Andhra Pradesh10 wherein, it was held that 'in order to establish an offence of forgery under Section 463 IPC punishable under Section 465 IPC, the presence of the original document before the Court concerned is necessary. Copy or photostat copy is not
9. 2005 DLT 522
10. 1988 (2) CRIMES VIII 882 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 186 of 263 :: 187 ::
sufficient in order to establish offence of forgery'.
231. In the present case, as noted above, alleged forged cheque of Rs.65 lakhs has not been produced by the Prosecution and, therefore, in absence of the cheque, it cannot be ascertained whether the cheque in question was forged and fabricated and / or the same was forged by any of the accused persons in conspiracy with one another.
Cheque dated 23.02.2009 for an amount of Rs.40 lakhs (Ex.PW4/A) favouring M/s BTC.
232. Case of the prosecution in respect of the aforesaid cheque is that A-4 Amit Aggarwal got forged the aforesaid cheque in connivance with A-5 Ganesh Lal and A-3 Mohd. Nauman showing to have been issued on bahalf of M/s BCC in favour of M/s BTC, the proprietor of which is A-2 Nipun Bansal. PW-24 Ms. Nidhi Aggarwal, Manager, HDFC, Darya Ganj Branch in her testimony tendered account opening form of M/s BTC (Ex.PW24/A) which proves that A-2 Nipun Bansal was having the aforesaid Bank account in the name of his proprietorship firm. It is further case of prosecution that the said cheque was dropped at HDFC, Hazrat Ganj, Lucknow by A-6 Chandra Bhan Singh at the instance of A-4 Amit Aggarwal and, thereafter, the said cheque was presented by HDFC, Lucknow to PNB Service Branch, Lucknow which CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 187 of 263 :: 188 ::
cleared/passed the said cheque on 26.02.2009 by crediting Rs.40 lakhs in the Bank account of M/s BTC. In order to substantiate the aforesaid allegations, the prosecution examined PW-31 Sh. Ramesh Chander, Manager (Retd.), PNB who deposed that the fraud was detected w.r.t. the account of M/s BCC upon complaint made by the Proprietor of the aforesaid firm to the effect that the some money had been withdrawn from his current acount and upon examining, it was found that Rs.40 lakhs had been debited from the current account of the said firm. PW-61, Inspector Virender Singh deposed that on 24.04.2009, he visited the Service Branch of PNB at Lucknow and seized the cheque in question (Ex.PW4/A) along with pay-in-slip (Ex.PW13/B) vide seizure memo (Ex.PW13/A). The said cheque (Ex.PW4/A) bears signature and stamp of Proprietor of M/s BCC. PW-13 Harish Gupta, Asst. Vice President, HDFC in his testimony confirmed the seizure of the aforesaid cheque and pay-in- slip. He identified his signature on the seizure memo (Ex.PW13/A) and further deposed that the pay-in-slip (Ex.PW13/B) was processed by Chaudhary Mohd. Suja, Dy. Manager, HDFC and identified his signature on the same and further deposed that the said cheque was cleared for encashment. He was not cross-examined by any accused and his testimony remained remained unchallenged. Thus, the encashment of the cheque in the account of M/s BTC stood proved.CC No. 131/2019
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233. Now, next the question would be whether the said cheque is forged and fabricated and if so, who forged the same. The said cheque as noted above reflects to have been issued by the authorised signatory of M/s BCC. The prosecution has examined PW-16 Satender Nath Bajpai and he deposed that he had been engaged in construction work through his firm M/s BCC and having a Bank account at PNB, Lal Bagh Branch, Lucknow. He further deposed that he was the sole authorised signatory of his Bank account and upon seeing the cheque in question (Ex.PW4/A), he disowned the signature and seal on the cheque. He further deposed that he had no business relations with M/s BTC. He confirmed that cheque (Ex.PW4/A) was encashed and an amount of Rs.40 lakhs was debited from the Bank account of his firm M/s BCC. The prosecution is further relying upon the testimony of PW-4 Pritpal Singh who deposed that the rubber stamp impression appearing on the cheque in question is of the rubber stamp prepared from his shop in the name and style of Swarn Stamp Works.
234. In order to prove the allegations against the A-6 Chandra Bhan Singh that he dropped the cheque in question at HDFC Bank at Hazratganj Branch, Lucknow, UP, the Prosecution has not brought on record any material to show that A-6 Chandra Bhan Singh himself dropped the said cheque at HDFC Bank as neither CCTV footage of the HDFC Bank was taken, nor evidence has been CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 189 of 263 :: 190 ::
come on record to show that A-6 Chandra Bhan Singh was not present in his Branch of PNB Lal Bagh, Lucknow, UP when the cheque was deposited in the HDFC Bank. However, the Prosecution is heavily relying upon the opinion (Ex.PW47/B) of the handwriting expert to arraign A-6 Chandra Bhan Singh in conspiracy with other accused persons. It is submitted that specimen handwriting of A-6 Chandra Bhan Singh were taken by the IO and the same along with the deposit slip (Ex.PW13/B) were sent to the FSL and the report of handwriting expert confirms that the handwriting on the said deposit slip matches with the specimen handwriting of A-6 Chandra Bhan Singh. On the strength of the above, Ld. PP for CBI submitted that it stands proved that A-6 Chandra Bhan Singh had entered into conspiracy with A-4 Amit Aggarwal, A-3 Mohd. Nauman and other accused persons to defraud the Bank.
235. Per contra, Ld. Counsel for A-6 Chandra Bhan Singh has contended that the report of hand writing expert is inadmissible in evidence. It is submitted that in the light of Section 311A Cr. P.C., the Investigating Officer could not have straightway taken the specimen handwriting of A-6 Chandra Bhan Singh without getting necessary order from the jurisdictional Magistrate and the act of the Investigating Officer in taking the specimen handwriting of A-6 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 190 of 263 :: 191 ::
Chandra Bhan Singh is hit by Section 162 Cr.P.C. and also amounted to testimonial compulsion violating Article 20(3) of the Consitution of India. The contention raised by Ld. Counsel for A-6 Chandra Bhan Singh is not tenable in law as the matter is no longer res integra in view of the decision of the Hon'ble Supreme Court of India in case of State of Bombay vs. Kathi Kalu Oghad 11 wherein it has been held that 'by giving the finger impressions or specimen handwriting, accused person does not furnish evidence against himself'. In Om Prakash and Ors. vs. Central Bureau of Investigation12, while dealing with the plea of accused that since his specimen/admitted handwriting were not taken pursuant to the directions of the Magistrate, the opinion rendered on the said handwriting cannot be read in evidence, the Hon'ble Delhi High Court has held as under:-
"6.4. The issue whether the evidence of the opinion of the handwriting expert based on the specimen handwriting/ signatures obtained from a person accused of having committed an offence during the course of investigation of a crime by the investigating officer without permission of the Court came up for consideration before the three Judge Bench of this Court in the decision reported as Sapan Haldar & Anr. v. State : 191 (2012) DLT 225 (FB). The three Judge Bench of this Court held that an investigating officer during investigation cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence after June 23, 2006 when Act No. 25 of 2005 was notified and Section 311A inserted in the Code of Criminal Procedure, 1973. Prior to June 23, 2006 even a Magistrate
11. AIR 1961 SC 1808
12. MANU/DE/2619/2017 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 191 of 263 :: 192 ::
could not direct a person accused to give specimen signatures or handwriting samples. Even if the Magistrate directed, the said evidence was held to be inadmissible as per the decision of the Supreme Court in State of U.P. v. Ram Babu Mishra : AIR 1980 SC 791. The full Bench however carved out a distinction and held that Section 4 of the Identification of Prisoners Act, 1920 would not be applicable where the person is accused of an offence punishable with death or imprisonment for life because the said provision specifies a prerequisite i.e. that the person concerned is accused of having committed an offence which is punishable with the sentence to undergo rigorous imprisonment for a term of one year or upwards.
6.5. In the present case the appellants were charged and tried for offence punishable under Section 409 IPC vide order dated 29th April, 2008 by the learned Special Judge which provides for sentence of imprisonment of life as well. Hence in view of the exception laid down by the full Bench in Sapan Haldar (supra) the objection of learned counsels for the appellants that the specimen handwriting/signatures of the appellant having been taken without the prior permission of the Court concerned, the opinion of the handwriting expert thereon is inadmissible in evidence is liable to be rejected."
236. In the present case all the accused including A-6 Chandra Bhan Singh are facing trial for commission of offences providing more than one year of imprisonment and thus the contention of A-6 Chandra Bhan Singh is without any merit. In addition to above, the Hon'ble Supreme Court of India in Santosh Vs. State of GNCT of Delhi13 where the High Court held 'the FSL report is inadmissible for being based on comparison of specimens forcibly obtained during investigation by the investigating agency', it was held as
13. MANU SC 0499 2023 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 192 of 263 :: 193 ::
under :
"57. A conspectus of the decisions above would indicate that since specimen signatures and handwriting samples are not incriminating by themselves as they are to be used for the purpose of identification of the handwriting on a material with which the investigators are already acquainted with, compulsorily obtaining such specimens would not infringe the rule against self-incrimination enshrined in Article 20(3) of the Constitution of India".
(Emphasis Supplied)
237. In view of the aforesaid settled law, the plea urged by Ld. Counsel for A-6 Chandra Bhan Singh to discard the said report on the ground of his specimen handwriting having been taken without permission of the Court, is without any merit. Further more, the specimen handwriting and signatures of A-6 Chandra Bhan Singh were taken by IO in the presence of independent witness PW-42 Hari Om Vohra who deposed that the said handwriting and signatures (Ex.PW42/E) were given by the accused voluntarily. No cross-examination of the said witness was conducted on behalf of A- 6 Chandra Bhan Singh disputing the voluntariness in giving handwriting and signatures by him and thus when he himself gave handwriting and signatures without any coercion, Section 311A Cr. P.C is of no avail to him.
238. It is, however, contended by Ld. Counsel for A-6 Chandra Bhan Singh that A-6 Chandra Bhan Singh cannot be condemned CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 193 of 263 :: 194 ::
only on the basis of report/ opinion of handwriting expert without there being any other evidence corroborating the same. It is further contended that the Investigating Officer did not seek any opinion with regard to signature of the depositor on the deposit slip which raises suspicion on the investigation by him. Ld. PP for CBI has vehemently objected to submission of Ld. Counsel for A-6 Chandra Bhan Singh submitting that report / opinion of the handwriting expert is supported by reasons which have not been challenged by the A-6 Chandra Bhan Singh and thus, the report is duly proved and no corroboration is required.
239. Perusal of pay-in-slip reveals that handwritings such as Account Number, Date and Name of M/s BTC, Name of the Bank, City, Drawer, Cheque Number and the Amount in figures were sent to CFSL for the expert opinion but signature of the depositor on the said deposit slip was not sent. No reason has been cited by Investigating Officer as to why the signature on the deposit slip was not sent for expert opinion. Furthermore, the Investigating Officer has failed to take opinion on the handwriting and signature on the cheque in question. As per opinion (Ex.PW47/B), the handwriting on deposit slip was found tallied with specimen handwriting of A-6 Chandra Bhan Singh. The handwriting expert was examined by the Prosecution and he was not cross-examined by A-6 Chandra Bhan Singh and, therefore, his testimony has remained un-rebutted and CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 194 of 263 :: 195 ::
un-challenged.
240. The aforesaid report of the hand-writing expert is required to be considered keeping in view the law settled by the Hon'ble Superior Courts. Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' 'in questions as to identity of handwriting' is expressly made a relevant fact. Now coming to the contention raised by learned Counsel for A-6 Chandra Bhan Singh that no conviction can be recorded on the basis of uncorroborated report of Hand-writing Expert; to support his contention, Ld. Counsel strongly placed reliance on the Judgment in Syed Samsudeen vs. State Represented by the Sub-Inspector of Police, City Crime Branch, Coimbatore14 wherein it was held that 'it is not desirable to impose conviction solely on the evidence of expert without corroborative evidence either direct or circumstantial'.
241. Perusal of the above judgment reveals that th same is based on the Judgment of Apex Court namely S. Gopal Ready vs. State of AP15 and Magan Behari Lal vs. State of Pune 16. The Judgment of Magan Behari (supra) and other Judgements of various Hon'ble
14. 2012 SCC OnLine Mad 3516 15 . AIR 1996 SC 2184 16 . AIR 1977 SC 1091 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 195 of 263 :: 196 ::
High Courts and Hon'ble Apex Court were dealt with in detail by the Hon'ble Apex Court in Murari Lal vs. State of MP 17 in order to ascertain whether conviction can be recorded on the basis of uncorroborated report of handwriting expert or not. The relevant portions of the Judgment are reproduced as under :-
"2. The two vital circumstances against Murari Lal were: (1) the recovery of a wrist-watch which belonged to the deceased Sonawala and (2) the writing in Hindi at page 6 of Ex. P-9 which was found to be in his handwriting indicating his presence in the house of the deceased on the night of the murder and his participation in the commission of the offences. ...........
3. We will first consider the argument, a stale argument often heard, particularly in criminal courts, that the opinion-evidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with the 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........
4. From the earliest times, courts have received the opinion of experts. As long ago as 1553 it was said in Buckley v. Rice Thomas (1554) 1 Plowden 118:
If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. This is a commendable thing in our law. For thereby it appears that we do not dismiss all other sciences but our own, but we approve of them and encourage them as things worthy of commendation.
5. Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person
17. AIR 1980 SC 531 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 196 of 263 :: 197 ::
'specially skilled' 'in questions as to identity of handwriting' is expressly made a relevant fact.
There is nothing in the Evidence Act, as for example like Illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (Section 3) tells us that 'a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we act on artificial standard of proof not warranted by the provisions of the Act Further, Under Section 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that Section 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinion of experts, when such opinions are relevant So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.
6. ...........
7. .....
8. In Fakhruddin v. State of Madhya Pradesh : AIR 1967 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 197 of 263 :: 198 ::
SC 1326 : 1967 Cri LJ 1197, Hidayatullah, J. said: Both Under Section 45 and Section 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become an handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court, must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness. These observations lend no support to any requirement as to corroboration of expert testimony. On the other hand, the facts show that the Court ultimately did act upon the uncorroborated testimony of the expert though the judges took the precaution of comparing the writing themselves,
9. Finally, we come to Magan Bihari Lal v. State of Punjab AIR 1977 SC 1091 upon which Sri R.C. Kohli, learned Counsel, placed great reliance. It was said by this Court:
...but we think it would be extremely hazardous to condemn the Appellant merely on the strength 'of opinion evidence of a handwriting expert. It is now 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. There is a profusion of precedential authority which holds that CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 198 of 263 :: 199 ::
it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U.P. : AIR 1957 SC 381 that 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. This Court again pointed out in Ishwari Prasad v. Md. Isa : AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar v. Subodh Kumar : AIR 1964 SC 529 where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P. : AIR 1967 SC 1326 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to sea whether it is corroborated by other evidence, direct or circumstantial. The above extracted passage, undoubtedly, contains some sweeping general observations. But we do not think that the observations were meant to be observations of general application or as laying down any legal principle. It was plainly intended to be a rule of caution and not a rule of law as is clear from the statement 'it has almost become a rule of law'. 'Almost', we presume, means 'not quite'. It was said by the Court there was a 'profusion of precedential authority' which insisted upon corroboration and reference was made to Ram Chandra v. State of U.P., Ishwari Prasad v. Mohammed Isa, Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of M.P. We have already discussed these cases and observed that none of them supports, the proposition that corroboration must invariably be sought before opinion evidence can be accepted. There appears to be some mistake in the last sentence of the above extracted CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 199 of 263 :: 200 ::
passage because we are unable to find in Fakhruddin v: State of Madhya Pradesh any statement such as the one attributed. In fact, in that case, the learned Judges acted upon the sole testimony of the expert after satisfying themselves about the correctness of the opinion by comparing the writings themselves. We do think that the observations in Magan Bihari Lal v. State of Punjab must be understood as referring to the facts of the particular case.
10. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated.
But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In 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.
11. The argument that the Court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which Judge and litigant must expose themselves whenever it becomes necessary.
There may be cases where both sides call experts and the voices of science are heard. There may be cases where CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 200 of 263 :: 201 ::
neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh were cases where the Court itself compared the writings.
12. Reverting to the facts of the case before us, Sri Kohli had not a word of criticism to offer against the reasons given by the expert P.W. 15, for his opinion. We have perused the reasons given by the expert as well as his cross- examination. Nothing has been elicited to throw the least doubt on the correctness of the opinion. Both the Sessions Court and the High Court compared the disputed writing at page 6 in Ex. P-9 with the admitted writings and found, in conjunction with the opinion of the expert, that the author was the same person. We are unable to find any ground for disagreeing with the findings."
(emphasis supplied)
242. The above view was approved by the Hon'ble Apex Court in Alamgir vs. State (NCT) Delhi18. Recently, the Hon'ble Supreme Court of India in Santosh Kumar (supra), where the Trial Court considered the report of the handwriting expert admissible and based its findings solely thereupon, the Hon'ble Supreme Court of India after going through the observations of the Trial Court held as under :
18 . Criminal Appeal No. 202 of 2001 decided on 12.11.2002 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 201 of 263 :: 202 ::
"65. The underlying principle deducible from the observations extracted above is that though it is not impermissible to base a finding with regard to authorship of a document solely on the opinion of a handwriting expert but, as a rule of prudence, because of imperfect nature of the science of identification of handwriting and its accepted fallibility, such opinion has to be relied with caution and may be accepted if, on its own assessment, the Court is satisfied that the internal and external evidence relating to the document in question supports the opinion of the expert and it is safe to accept his opinion.
66. In the instant case, with regard to authorship of the suicide letter, the Trial Court though returned a finding in favour of the prosecution by relying solely on the expert report but did not record its satisfaction having regard to its own observations with respect to the admitted and disputed writings. It also did not examine whether in the proven facts and circumstances of the case it would be safe to rely on the expert report. It be noted that Section 73 of the IEA, 1872 enables a Court to compare the words or figures written by a person present in Court with any words or figures alleged to have been written by such person. The Trial Court therefore could have undertaken such an exercise. But, in the instant case, there appears no such exercise undertaken by the Trial Court.........."
243. The law laid down in the aforesaid cited judgments, does not stop the Court to rely upon the opinion of the hand-writing expert without any corroboration but caution has been provided so that reasons for the opinion must be carefully probed keeping into consideration by other relevant evidence. It has been held as noted in the case where reasons for the opinion are convincing and there is no evidence throwing doubt upon the testimony of handwriting expert, her testimony may be accepted. In view of the law laid down CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 202 of 263 :: 203 ::
by the Hon'ble Supreme Court, this court is of the considered opinion that the conviction can be recorded on the sole uncorroborated report of handwriting expert provided the report is convincing and there is no reliable evidence throwing any doubt over the report. Accordingly, the court does not find any substance in the contention of learned counsel that no conviction can be recorded on the basis of uncorroborated GEQD report.
244. Reverting to the facts and circumstances of the present case; A-6 Chandra Bhan Singh, as noted above, failed to cross-examine handwriting expert and opinion along with reasons given by expert remained un-assailed and unchallenged. This Court has also perused reasons (Ex.PW47/C) given by the handwriting expert, namely, Sh. P. Vijya Shankar (PW-47) in support of his opinion and found nothing to throw any doubt on correctness of his opinion. Thus, in the absence of any such evidence, this Court is of the considered opinion that there is no reason to disbelieve the report of GEQD. Furthermore, when incriminating piece of evidence i.e. report of the handwriting expert was put to him, in his statement under Section 313 Cr.P.C., he has no explanation to offer and had simply showed his ignorance about the said report.
245. The Court has also, as per Section 73 of the Indian Evidence Act, compared handwriting on the deposit slip (Ex.PW3/10) and CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 203 of 263 :: 204 ::
specimen handwriting of A-6 Chandra Bhan Singh (Ex.PW47/E) and found that the words or figures written on Ex.PW13/10 found matched with the specimen handwriting of A-6 Chandra Bhan Singh.
246. From report of the GEQD, it can be safely culled out that sufficient data was provided to GEQD in the form of questions and specimen handwriting and thus, he was having sufficient data to examine the documents. There is no evidence to disbelieve report (Ex.PW47/B) of the GEQD and in view of the law laid down in Murari Lal (supra), this Court is of the considered opinion that in the present case, the said report of GEQD can be relied upon as incriminating evidence against A-6 Chandra Bhan Singh, keeping in view the chain of circumstances i.e. the Cheque book of the Bank Accounts of M/s BCC from which cheque of Rs.40 lakhs was forged, has been proved to have been removed from PNB Lal Bagh Branch, Lucknow where accused was employed.
247. Ld. Counsel for A-6 Chandra Bhan Singh in his arguments submitted that since A-6 Chandra Bhan Singh had been working on 'May I Help Desk', he might have filled up the said slip in question during the course of his duty. During the course of his cross- examination, IO PW-60 admitted the suggestion given to him that at the relevant time, A-6 Chandra Bhan Singh was posted at 'May I CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 204 of 263 :: 205 ::
Help' counter in PNB Lal Bagh Branch, Lucknow, however, he did not collect any details about working profile of A-6 Chandra Bhan Singh from Manager of the said Branch or any other superior Officer of the said Bank.
248. The defence taken by A-6 Chandra Bhan Singh that he might have filled up the deposit slip during his course of duty while he was working at 'May I Help You Desk' is an afterthought as no such suggestion was given to PW-5 Ms. Sadhna Srivastava, PW-12 Sh. Deepak Dave, PW-59 Sh. Shashi Kant Mishra (Sanction Witness) and PW-60 IO. Even in his statement under Section 313 Cr. P.C, A-6 Chandra Bhan Singh did not state about the fact that he might have filled up the deposit slip while performing duties at 'May I Help You Desk' in PNB. Even otherwise, it is strange that the person who was to drop the cheque in question along with deposit slip in HDFC, would come to PNB Lal Bagh Branch to get the deposit slip filled up. Furthermore, A-6 Chandra Bhan Singh while working on 'May I Help You Desk' was not under obligation to fill up the deposit slip pertaining to HDFC Bank and he might have referred the said person to get it filled up in HDFC at its counter.
249. In addition to the aforesaid evidence of the handwriting of A- 6 Chandra Bhan Singh found on the deposit slip vide which the cheque in question was deposited, there are other evidence to show CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 205 of 263 :: 206 ::
that the Cheque Book (Ex.PW44/C1 to Ex.PW44/C23) of TSP Series was found 'destroyed' from the Bank where A-6 Chandra Bhan Singh was working and photocopies of the cheques of M/s BCC, M/s SIFCL and M/s UPSRTC bearing signatures of authorised signatories who were customers of the aforesaid Branch of PNB, were also found in possession of A-5 Ganesh Lal showing removal of the said cheque book and photocopies from the Branch where the A-6 Chandra Bhan Singh was working. Furthermore, though PW-5 and PW-12 deposed that the Cheque Book never remained in the custody of A-6 Chandra Bhan Singh, PW-59 Shashi Kant Mishra who accorded sanction to prosecute the A-6 Chandra Bhan Singh testified in his cross-examination conducted by Ld. Counsel for A-6 Chandra Bhan Singh that 'overnight custody of the Cheque book cannot be with any official of rank of Clerk but during day time, the Cheque Book could be in the custody of official of rank of Clerk also'. The said witness was not given any suggestion contradicting his aforesaid statement which suggests that A-6 Chandra Bhan Singh being a Clerk could have the opportunity to access the Cheque Book during day time. The aforesaid circumstances coupled with handwriting of accused on the deposit slip are indicative of the circumstances to draw inference that he was in conspiracy with other A-5 Ganesh Lal from whose possession, the incriminating material such as Cheque Book and the aforesaid photocopies of the CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 206 of 263 :: 207 ::
cheques were recovered. However, the Prosecution has failed to establish that A-6 Chandra Bhan Singh has committed any misconduct as defined under Section 13(1)(d) of PC Act by using his position as a Public Servant as he merely filled up the deposit slip in respect of the cheque in question, which act of A-6 Chandra Bhan Singh fell short of any criminal misconduct. Nonetheless, the said act of A-6 Chandra Bhan Singh is sufficient to establish conspiracy between him and A-5 Ganesh Lal whose role has already been discussed and found that he was having custody and possession of Cheque Book of TSP Series wherefrom the cheque in question was obtained and fabricated by putting the stamp of M/s BCC and forged signatures of its authorised signatories.
250. Upon analysis of the aforesaid evidence with regard to the cheque dated 23.02.2009 for sum of Rs.40 lakhs, the Prosecution has succeeded in proving that the aforesaid cheque was forged and fabricated after having been taken from the Cheque Book found in possession of A-5 Ganesh Lal, however, the Prosecution has failed to prove as to who amongst the accused persons forged the cheque in question. The Prosecution has also established that the deposit slip (Ex.PW13/B) vide which cheque in question was presented with Bank, was filled up by A-6 Chandra Bhan Singh and thus it is proved that he was instrumental in presenting the said cheque at HDFC Bank. The Prosecution has succeeded in proving that the said CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 207 of 263 :: 208 ::
forged cheque was used and encashed into Bank Account of M/s BTC of Nipun Bansal who failed to give any explanation as to under what circumstances, the said cheque was credited into his Bank Account from the Bank Account of M/s BCC. He did not take any steps to inform the Bank that the said amount was credited wrongly into his Bank Account and only got transferred Rs.25 lakhs on 06.03.2009, when he probably became aware that the investigation with regard to the aforesaid cheque had commenced. Subsequently, he deposited Rs.15 lakhs on the strength of the bail Order.
251. In view of the aforesaid evidence, the Prosecution has succeeded in proving that there was criminal conspiracy amongst A- 6 Chandra Bhan Singh, A-5 Ganesh Lal and A-2 Nipun Bansal to induce the Bank and its customer to deliver the amount of Rs.40 lakhs by forging the cheque and presenting the same for encashment and in pursuance to the said conspiracy caused a wrongful loss to the PNB, Lal Bagh Branch Lucknow and its Customer M/s BCC to the tune of Rs 40 Lakhs.
Cheque No. TTT793697 Dated 02.03.2009 for an amount of Rs.4.50 lakhs (Ex.PW3/C) and Cheque No. TTT793699 Dated 04.03.2009 for an amount of Rs. 3.65 lakhs (Ex.PW3/D) favouring Shahid.
252. The case of the prosecution in respect of the aforesaid CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 208 of 263 :: 209 ::
cheques are that A-3 Mohd. Nauman forged the aforesaid cheques after obtaining blank multicity cheque book containing cheques no. TTT512751 to TTT 512800 from Deepak Sharma, Proprietor of Shir Ganesh Courier who had a Bank account with PNB, Darya Ganj Branch. It is the further case of the prosecution that the said account was lying dormant without sufficient balance and Rs.6000/- was given by A-3 Mohd. Nauman to Deepak Sharma for depositing the said amount in the account for issuance of the cheque book. As per the case of prosecution, cheques in the said cheque book were multicity cheques, bearing only Bank code without branch name or its code, which were got printed on the cheques No. TTT793697 and TTT793699 by the accused persons. The aforesaid two cheques were forged for Rs.4.50 lakhs and Rs.3.65 lakhs, respectively showing to have been issued from the Bank account of M/s BCC favouring 'Shahid' and were deposited in PNB Morta Branch on 05.03.2009 through undated pay-in-slips.
253. As per the case of prosecution, A-10 Raje @ Rajiv opened the said account in the name of 'Shahid' in PNB, Morta Branch, Ghaziabad at the instance of A-9 Jamir Ahmad. In order to prove the factum of opening of Bank account by A-10 Raje @ Rajiv, in the fictitious name of 'Shahid', the prosecution is relying upon the testimony of PW-4 Sh. Tek Chand, Manager, PNB, Chanderpuri, CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 209 of 263 :: 210 ::
Ghaziabad. He deposed that account was opened on the request of Shahid vide account opening form (Ex.PW53/A) and the photographs of Shahid were pasted on the said form. He further deposed that said Shahid approached him for opening savings Bank account along with account opening form duly filled and annexed with the photocopy of his election I-card bearing attestation and seal of the Bank. He deposed that said Shahid signed in his presence on the said application form. He further deposed that at the time of opening of account, he had also handed over Form-16 to him and he signed on the same. The said witness identified him after having gone to dock pointing towards A-10 Raje @ Rajiv saying that he was the aforesaid Shahid whose Bank account was opened by him. He further deposed that said Bank account was introduced by Shiv Dutt, who was the landlord of Morta Branch of PNB as well as account holder in the said Branch. He deposed that the said account was opened on 03.03.2009 and no verification of the address as given in the application for opening of account was done by the Bank prior to the opening of account. He stated that he did not have the knowledge that the original name of Shahid was A-10 Raje @ Rajiv at the time of opening of account. The witness further deposed that on the application made by said Shahid on 04.03.2009 for issuance of cheque book, one cheque book was issued to him. The said witness was cross-examined by A-10 Raje @ Rajiv and in his CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 210 of 263 :: 211 ::
cross-examination, he stated that his statement was not recorded by CBI. He was also read over his entire statement recorded by CBI (Ex.PW54/DA) and stated that he had not given any such statement to CBI. He volunteered to state that when CBI visited the Bank, he was not there as he had gone for training. He further deposed that the Morta Branch of PNB was computerised and also having CCTV installed. He further deposed that at the time of opening of account on 03.03.2009, Shahid was alone when he came to meet him and he was not accompanied by introducer as he was his landlord who was sitting outside the Bank. He denied the suggestion that when the application form was put up before him, it was not having any photograph and the photograph was affixed later on. The prosecution has further examined PW-53 Shiv Dutt Tyagi, who claimed himself to be the introducer of the said Bank account in the name of Shahid @ Raje @ Rajiv and deposed that the person whose photograph is affixed on the application form (Ex.PW53/A) came to him with the request to become his introducer for account opening stating that he was native of the village Duhai at a distance of one km from his place. He stated that upon seeing voter I-card of the said person as address proof, he appended his signature as introducer. He had gone towards the dock and pointed out towards A-10 Raje @ Rajiv amongst the accused to be the aforesaid person for whom he had became introducer. In his cross-examination, he CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 211 of 263 :: 212 ::
deposed that when he signed the form as introducer, the form was already filled up and only the number of account was filled later. He denied the suggestion that he was not knowing A-10 Raje @ Rajiv earlier and had simply identified him in the court after having seen his photograph on the account opening form. He denied the suggestion that he had abused Accused Raje when he was brought to the Bank by Insp. Bodh Ram, CBI and volunteered to state that he had told the police officer that the said person was fraud.
254. The testimonies of the aforesaid two witnesses are consistent and corroboratory to each other to prove the fact that the said Bank account in the name of Shahid was opened by A-10 Raje @ Rajiv. No suggestion was given by accused to the witness that photographs of A-10 Raje @ Rajiv were obtained surreptitiously to falsely implicate him. Witness had also not been suggested that the account opening form did not bear the signature of A-10 Raje @ Rajiv misrepresenting himself as Shahid. Even in his statement under Section 313 Cr. P.C., he stated that he did not know why PW-54 identified him.
255. The prosecution has also proved that A-10 Raje @ Rajiv was never the native and/or resident of Village Duhai. PW-55 Sh. Daya Sahu, aged about 64 years deposed that he had been the Numberdar of the said village for about 5 years and upon seeing the photograph CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 212 of 263 :: 213 ::
on Ex.PW53/A, stated that the person in the photograph was not native of Village Dulai. He further deposed that there was no house with number '436', which is shown in the Election I-card (Ex.PW45/B) of Shahid stating that no numbers were given to the houses in his village and no person in the name of Shahid S/o Rashid Ali was/ is native of his village. The said witness after having seen all the accused persons standing in the dock stated that none of them was native of his village. In addition to above, PW-56 Satish Chandra Shukla posted as Tehsildar, Sadar, Ghaziabad deposed that the Election I-card (Ex.PW54/B) was not issued from his office and the said fact was stated by him to CBI during investigation. Both the witnesses were cross-examined. However, nothing has been elicited in their cross-examination to dent their testimonies. The prosecution established that no person in the name of Shahid existed and the said account was opened by A-10 Raje @ Rajiv in the name of Shahid.
256. Case of prosecution in respect to the aforementioned two cheques is that these two cheques were forged and thereafter presented by accused for clearing at PNB, Rithani Branch, Meerut but the said cheques were not cleared as the Manager of Rithani Branch doubted the genuineness of the cheques and after verification from Lal Bagh Branch, it was revealed that no such cheques had been issued and thus, attempts to encash the cheques CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 213 of 263 :: 214 ::
failed. The said cheques were seized by PW-49 Inspector Bodhraj Hans from PNB Morta Branch vide seizure memo (Ex.PW49/B). The said cheques bear the signature and stamp of Proprietor of M/s BCC. In order to prove is case that these two cheques were forged and fabricated, prosecution has relied upon testimony of PW-3 Ved Prakash Tyagi, Manager, PNB (Printing & Stationery Department), who deposed that he was having Diploma in Printing Technology and joined PNB in 1979 as Printing Technologist. He further stated that Printing & Stationery Department of PNB used to get the cheques printed from an approved panel of printers as per the requisition of various branches of the Bank. He further deposed that out of the cheque books received from printing, sample cheques of some cheque book is carried out to ensure their accuracy by him along with his colleagues in Printing Department of PNB. He further deposed that on seeing the cheque, he could find out if, the cheque is genuine or fake and upon having been shown the aforesaid cheques, he deposed that the said cheques are genuine, but there are alterations in Bank account number, Branch name & Code and Cheque Numbers at points A, B and C, respectively.
257. In his cross-examination conducted on behalf of accused persons, he deposed that in the period to which said cheques pertain, Branch Code and Branch Name were not used to be printed on the cheques. He admitted the suggestion given to him that in the CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 214 of 263 :: 215 ::
aforesaid cheques, PNB' Branch Code and Name were not originally printed and the same was printed later on. He admitted that the Branch Code & Name is filled up by the Branch officials. PW-3 denied the suggestion that he was not expert in printing field or that there is no alteration or addition in the said cheques or that addition or alteration had been done by the Bank officials.
258. Looking into the testimony of the aforesaid witness who had been working as Printing Technologist in the Printing Department of PNB since 1979 and his testimony w.r.t. alteration of the cheque number, branch code and branch name in conjunction with the testimony of other witnesses who deposed that the said two cheques were not found to have been issued by the Bank or signed by the authorised signatory, Satender Nath Bajpai, Proprietor of M/s BCC who was examined as PW-16 and deposed that these two cheques were never issued by him and those do not bear his signature and seal of the firm, it is proved by the prosecution that the aforesaid cheques are forged and fabricated.
259. However, the question remains to be answered as to who forged the said cheques and presented the same for encashment. The prosecution has not produced any evidence to show that cheque was forged and fabricated by any particular accused. The cheques in question were sent to GEQD for examination of the handwriting but CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 215 of 263 :: 216 ::
no opinion was given on the said two cheques. There is no material to connect any of the accused persons with forgery of the said cheques. Further case of the prosecution as per para-28 of the charge-sheet is that the said two cheques were presented for clearance by A-9 Jamir Ahmad at PNB, Rithani Branch, Meerut however no evidence either oral or documentary were brought to substantiate the allegations that the aforesaid two cheques were presented by A-9 Jamir Ahmad at the aforesaid Branch. No CCTV footage was obtained from the said Branch by IO to confirm the presence of A-9 Jamir Ahmad at the Branch and, therefore, the prosecution has failed to prove that the aforesaid cheques were presented by A-9 Jamir Ahmad.
260. The prosecution has also examined PW-38 Sh. Ikramuddin, who deposed that he was acquainted with A-9 Jamir Ahmad being his neighbour residing in Vijay Nagar, Modi Nagar, Ghaziabad. He further deposed that A-10 Raje @ Rajiv was his close friend for about 5 - 6 years. However, he could not tell if, A-9 Jamir Ahmad was also acquainted with A-10 Raje @ Rajiv. He also failed to identify A-3 Mohd. Nauman in the court stating that A-9 Jamir Ahmad had never introduced him to A-3 Mohd. Nauman. In his cross-examination by Ld. PP for CBI, the witness had admitted that his statement was recorded by IO, but he disowned the said statement stating that he did not state to IO that A-9 Jamir Ahmad CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 216 of 263 :: 217 ::
told him that he had arranged for certain cheques, which he requested to get deposited in the account of A-10 Raje @ Rajiv or that the said amount mentioned in the cheque was to be withdrawn by A-10 Raje @ Rajiv. He denied to have told IO that the cheques could not be encashed due to getting the same dishonoured for the reasons 'signatures not tallying'. The said witness has completely disowned the statement recorded by IO on being confronted with it. However, the IO, who recorded the said statement was not confronted with the statement of this witness during recording of his testimony and, therefore, the testimony of this witness cannot be relied upon w.r.t. confrontation made with the witness by Ld. PP for CBI. Testimony of this witness is of no assistance to the case of the prosecution to prove that A-3 Mohd. Nauman, A-9 Jamir Ahmad and A-10 Raje @ Rajiv were acquainted with each other or that they entered into conspiracy to defraud the Bank or presented forged and fabricated cheques for encashment.
261. Another aspect with regard to these two cheques in question is that these two cheques along with two deposit slips were seized by PW-49 Insp. Bodh Raj Hans vide seizure memo (Ex.PW49/B), however, the prosecution has failed to disclose as to how they came to know that these two cheques were attempted to be encashed at PNB, Rithani, Meerut. Furthermore, as per the seizure memo, the aforesaid cheques and deposit slips were handed over by Sh. R.S. CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 217 of 263 :: 218 ::
Verma, Sr. Manager, PNB, Rithani, Meerut, U.P. However, he has neither been cited nor examined as witness in the present case. No independent witness was joined while seizing the said cheques and pay-in-slip from the Bank. Thus the prosecution has failed to prove that these two cheques were, in fact, presented for encashment in the aforesaid fictitious Bank account of Shahid opened by A-10 Raje @ Rajiv. No primary evidence from Bank in which check were allegedly presented were adduced by prosecution.
262. The Prosecution though has succeeded in proving that the Bank Account in the name of Shahid with PNB Morta Branch, Ghaziabad, UP was opened by one Raje @ Rajeev fraudulently but he is not facing trial for opening the said fictitious Account but for entering into criminal conspiracy with other accused persons to forge the cheques in question and attempt to encash in his fictitious Bank Account. Although the Prosecution has succeeded in proving that the said two cheques were forged and fabricated, yet it has failed to prove any criminal conspiracy amongst the accused persons to fabricate the said cheques and present them to get those credited into the aforesaid fictitious Bank Account opened by A-10 Raje @ Rajiv.
Cheque No. TTT 512776 Dated 17.03.2009 for an amount of Rs.1,58,70,000/- (Ex.PW3/E) favouring M/s Leepakashi CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 218 of 263 :: 219 ::
Overseas
263. The said cheque was seized by Inspector of CBI from the possession of PW-18 Darpan Kumar Chhibber, Chief Manager, BoB vide seizure memo (Ex.PW18/B) and the same reflects bearing signature/ stamp of Assistant Manager and Drawing and Disbursement Officer of UPSRTC, Lucknow having Bank Account in PNB Lal, Bagh, Lucknow, UP. The cheque in question was presented for payment in the Bank Account of M/s LPO in BoB on 20.03.2009.
264. As per the case of prosecution, the aforesaid cheque was forged by the accused persons in furtherance of conspiracy and A-3 Mohd. Nauman misused the said cheque from the cheque book received by him from Deepak Sharma and, thereafter fabricated for the aforesaid amount showing to have been purportedly issued from the Bank account of UPSRTC in favour of Leepakshi Overseas. The said cheque was dropped at Bank of Baroda, Sansad Marg, New Delhi for crediting in the Bank account of Leepakshi Overseas maintained with Bank of Baroda, Dilshad Garden Branch. As per the case of prosecution, the said cheque was presented by Back Office of Bank of Baroda through RBI in CTS clearing and the Bank account of Leepakshi Overseas was credited on 21.03.2009 for the aforesaid amount. However, subsequently, when RBI sent CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 219 of 263 :: 220 ::
rejection statement, the credit entry was reversed on 23.03.2009 and thus, an attempt to get the aforesaid cheque encashed by the accused persons resulted in failure.
265. In order to prove the aforesaid allegations, the prosecution is relying upon testimony of PW-3 Ved Prakash, who being Manager (Printing & Stationery Department), PNB deposed that the aforesaid cheque though, is genuine, yet there are alterations at points A and B and there was no account number of the customer in the said cheque. Further, reliance by the prosecution is being placed on the testimony of PW-9 Deepak Sharma from whose cheque book, the cheque in question was obtained and forged. The testimony of the said witness has already been dealt with and it was found that the testimony of PW-9 with regard to. handing over of cheque book by him to A-3 Mohd. Nauman is not creditworthy. However, PW-15 Jaiprakash Singh, Staff Officer/ Managing Director, UPSRTC, Lucknow deposed after having seen the cheque in question that UPSRTC had no business transaction during the aforesaid period with Leepakshi Overseas and the signature on the said cheque is not of Asst. Manager and/ or of S.C. Joshi who was/were authorised signatory(ies) to operate Bank account of UPSRTC. He also deposed that cheques of series 'TTT'were never issued to UPSRTC for Bank transaction.
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266. Perusal of the cheque in question reveals that alterations have been made at points A & B on the said cheque and signatures of authorised signatories of UPSRTC along with its stamp are forged and specimen impression of the stamp was taken in presence of PW-
44. The said stamp (Ex.P3) was recovered from possession of A-5 Ganesh Lal which specimen impression was seized vide memo (Ex.PW44/H1) and the said seal of UPSRTC on the said memo is the same seal which is affixed on the cheque in question (Ex.PW3/E). In view of the aforesaid testimony of the witness and the material on record, the prosecution has succeeded in proving that the aforesaid cheque is forged and fabricated having not been issued by UPSRTC in favour of M/s LPO.
267. However, in addition to it, the prosecution has to prove that the said cheque was forged and fabricated by accused persons in conspiracy with one another. Investigation Agency had sent the cheque to GEQD for opinion on handwriting thereon along with specimen signatures of accused persons. GEQD in its report (Ex.PW47/D) opined that handwritings on the cheque pertaining to points Q-42 [Lee Pakshi Overseas] and Q-43 [1,58,70,000/-] was found matching with the specimen handwriting of A-4 Amit Aggarwal. The prosecution has examined PW-47, who tendered in his testimony the opinion supported by the reasons regarding handwriting sent to GEQD. He was not cross-examined by Ld. CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 221 of 263 :: 222 ::
Counsel for A-4 Amit Aggarwal and thus, his testimony remained unassailed and unchallenged. However, Ld. Counsel for A-4 Amit Aggarwal has argued that the specimen handwriting and signatures of A-4 Amit Aggarwal were taken in violation of Section 311A Cr. P.C., as no permission from the Magistrate concerned was obtained prior to taking the specimen handwriting and signature of A-4 Amit Aggarwal. The said contention has already been dealt with while appreciating evidence with regard to handwriting of A-6 Chandra Bhan Singh on the deposit slip of cheque (Ex.PW4/A) and rejected. The specimen signatures and handwriting of A-4 Amit Aggarwal was taken voluntarily during his Police custody in April, 2009 in presence of independent witness Sh. Hari Om Vohara as deposed by Sh. C.S. Prakash Narayan (PW-60), IO of the case and the said fact was not assailed or challenged by the accused during the cross- examination of the said witness. Thus, the Prosecution has established that no coercion was used in taking specimen signatures / handwriting (Ex.PW42/D) of A-4 Amit Aggarwal and same were given voluntarily by the A-4 Amit Aggarwal. There is no contravention of any provision of law in taking specimen handwriting and signature of A-4 Amit Aggarwal.
268. Ld. Counsel for A-4 Amit Aggarwal has further argued that A- 4 Amit Aggarwal cannot be convicted only on the basis of opinion of handwriting expert without any corroboration. The said CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 222 of 263 :: 223 ::
contention had also already been dealt with by this court and rejected while dealing with the similar contention raised by A-6 Chandra Bhan Singh on the strength of the judgments of Hon'ble Superior Courts observing that uncorroborated opinion of the hand- writing expert is admissible to bring home the guilt of accused. In addition to the aforesaid incriminating evidence of handwriting of A-4 Amit Aggarwal found on the cheque in question, there are other circumstances such as stamp of M/s UPSRTC on the said cheque was affixed from the stamp found in possession of A-5 Ganesh Lal who was also found to have possessed the visiting card (Ex.PW44/F3) of A-4 Amit Aggarwal. A-4 Amit Aggarwal did not deny that he was not running any Advertising Agency under the name and style of AD Wings Advertising as reflected from the visiting card or that the said Card did not pertain to him. Even in his statement under Section 313 Cr. P.C., he admitted that he was running Advertising business and has failed to explain possession of his visiting card by A-5 Ganesh Lal. In view of the aforesaid cumulative circumstances, it is established that A-4 Amit Aggarwal and A-5 Ganesh Lal were in conspiracy with each other to present the aforesaid forged and fabricated cheque to defraud the Bank. Though it has been proved that details with regard to date, amount and name of payee were filled up by A-4 Amit Aggarwal, yet, the cheque in question cannot be transformed into a document / CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 223 of 263 :: 224 ::
valuable security as per Sections 464 and 467 IPC without signature on the same. Since the prosecution has failed to prove that the signature on the said cheque was forged and fabricated by A-4 Amit Aggarwal, he cannot be saddled with liability to forge the cheque.
269. Since the cheque in question was to be credited in the account of Leepakshi Overseas, it is to be examined whether prosecution has established any link of the accused persons with Leepakshi Overseas so that the amount if, credited could be shared between them. PW- 21 Pramod Jain, Joint Manager, Bank of Baroda, Dilshad Colony proved the account opening form of M/s LPO (Ex.PW21/B). He testified that aforesaid Bank Account was permitted to be opened by him. He was not cross-examined by any of the accused persons. In view of the aforesaid documentary evidence, the Prosecution has succeeded in proving that M/s LPO was maintaining its Bank Account with BoB Dilshad Garden Branch, Delhi, however, prosecution has failed to prove as who was operating the said Bank account.
270. Now it is to be examined whether the cheque in question was attempted to be encashed in the aforesaid Bank account. PW-18 Sh.
Darpan Kumar Chhibar, Chief Manager, Bank of Baroda deposed that the cheque in question as per the record of the Bank was dropped in the drop box of Bank of Baroda, Parliament Street CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 224 of 263 :: 225 ::
Branch along with the pay-in-slip (R1). Sh. S. Nagpal, one of the Officers of the Bank scanned the said cheque and transmitted to Data Entry Operator (DEO), who fed the data in regard to the amount of cheque in the account of payee. He further deposed that thereafter, the data so fed, was sent to the Officer of the drawee Bank for verification and cheque in question was sent by him for the purposes of verification. He further deposed that computerised data in regard to the cheque number, MICR code and the amount of cheque and transaction code were verified by him and, thereafter, the report of verification is sent online to RBI in a bunch of 250 such reports. He further deposed that no credit or debit voucher is maintained w.r.t. such procedure as the same are maintained in the computer network system. After seeing the statement of Bank account of Leepakshi Ovserses, he deposed that the amount of Rs.1,58,70,000/- was credited on 21.03.2009 through cheque in question, however, on 23.03.2009, a debit entry reversing the said credit is reflected in the said statement of account (R2). Now it further to be seen whether Statement of Account of M/s LPO (Ex.PW21/C) showing deposit of Rs.1,58,70,000/- through cheque No. 512776 and thereafter, reversal of the said amount on 23.03.2009 was proved as per law or not. PW-21 deposed that the said Statement of Account of M/s LPO (Ex.PW21/C) was signed by Sh. R.D. Bhardwaj. This statement of account is computer generated CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 225 of 263 :: 226 ::
however, it has not been supported by any certificate either under Section 2A of Bankers' Book of Evidence Act or under Section 65B of Indian Evidence Act. Though, the said statement of account has been exhibited and no objection has been raised by Ld. Counsel for accused persons pertaining to its exhibition yet, it is well settled law that that if the document is otherwise inadmissible for want of a certificate or any other requirement of law, its exhibition in the course of trial does not make the document admissible in law. Though an objection as to the mode of proof can be waived off and should be taken at the first instance, however the objection as to the admissibility of a document which goes to the root of the matter can be taken at any stage. If the document is per-se inadmissible, then even if marked as an exhibit the same cannot be read in evidence. The Hon'ble Delhi High Court in Om Prakash and Ors. vs. Central Bureau of Investigation19 has held as under:-
"5.18. A conjoint reading of Section 34 of the Indian Evidence Act, Sections 2(8), 2A and 4 of the Banker's Book Evidence Act and the various pronouncements of the Supreme Court lead to the conclusion that firstly, the prosecution is required to lead admissible evidence to prove the entries in the books of accounts and after having led admissible evidence link the same with other evidence on record to prove the guilt of the accused beyond reasonable doubt. Thus, in case the statements of accounts exhibited on record are accompanied by certificate as envisaged under Section 2A of the Bankers' Books Evidence Act, the statements of accounts would be admissible in evidence. An objection as to the person exhibiting the said statements of account i.e. an
19. MANU/DE/2619/2017 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 226 of 263 :: 227 ::
objection to the mode of proof and not admissibility, has to be taken at the time of exhibition of the documents. Therefore if certified copies of the statements of accounts have been exhibited as per the requirement of Section 2A of the Act, the statement of account would be admissible and in case no objection to the witness proving the same is taken at the time when the document is exhibited, the document would be validly read in evidence. However, if the statements of accounts have been exhibited without the necessary certificate as contemplated under Section 2A of the Act, the same being inadmissible in evidence, even in the absence of an objection taken as to the mode of proof during trial, this Court cannot read the same in evidence even though marked as an exhibit."
(Emphasis Supplied)
271. In view of the aforesaid settled law in the absence of any certificate under Section 2A of Bankers' Books of Evidence Act and Section 65B of Indian Evidence Act, the aforesaid statement of account (Ex.PW21/C) is inadmissible in evidence and the same cannot be taken into consideration. However, it has been proved by the prosecution that the cheque in question was forged and fabricated and the same was presented in Bank of Baroda, Dilshad Garden Branch as the cheque has been seized and produced by the official of the said Bank after the same was dropped in the drop box.
Thus, independent of the statement of account, it is proved that an attempt to encash the said cheque was made.
272. From the conspectus of the aforesaid facts, circumstances and evidence, it is proved that a conspiracy was hatched between A-4 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 227 of 263 :: 228 ::
Amit Aggarwal and A-5 Ganesh Lal and in pursuance to said conspiracy the cheque in question was forged and fabricated with assistance of A-4 Amit Aggarwal by filling up the same in his handwriting and impression of the stamp (Ex.P3) recovered from the possession of A-5 Ganesh Lal and thus, both of them conspired with each other to cheat PNB, Lal Bagh Branch, Lucknow and its customer M/s UPSRTC and attempted to encash the same by presentation.
Cheque (Ex.PW3/A) No. TTT512799 dated 19.03.2009 for an amount of for Rs.55.06 lakhs and Cheque (Ex.PW3/B) No. TTT512780 dated 18.03.2009 Rs.51.65 lakhs favouring M/s BMPL
273. The aforesaid two cheques were credited to the Bank Account of M/s BMPL operated by A-1 Mukesh Jain and his wife accused A- 8 Benu Jain as Directors of M/s BMPL. As per case of the Prosecution, the said two cheques were secured by A-3 Mohd. Nauman from Deepak Sharma, Proprietor of M/s Ganesh Couiers and shown to have been purportedly issued from the Account of SIFCL having Bank Account in PNB Lal Bagh Branch, Lucknow, UP. Further case of the Prosecution is that the aforesaid amounts so credited in the Bank Account of M/s BMPL were utilised by A-1 Mukesh Jain, A-8 Benu Jain and A-7 S.K. Bhargava.
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274. In order to prove that accused persons were in conspiracy with one another to forge and fabricate the aforesaid cheques to defraud PNB, Lal Bagh Branch, Lucknow, UP and its customer SIFCL, the Prosecution is relying upon the testimonies of various witnesses. PW-1 Ram Niwas Malik, Chief Manager of PNB deposed that he was working as Chief Manager in back office Service Branch, ECE Office, Connaught Place, New Delhi where image of the cheques through CTS were received from all over India for clearance of the cheques which are deposited in Delhi and NCR. He has elaborated the term 'CTS' stating that after introduction of CTS, only image of the cheque is received on screen while earlier cheques were used to be received in physical form for clearance by the payee Bankers. He deposed that now the cheques in original are retained by the collecting Branch i.e. the Bank in which the cheque is deposited for clearance and image of the cheque contains the details of the Account number, signatures as well as the amount and further details. If there is balance in the account, the cheque is passed by the Passing Officer and with the introduction of the Centralized Banking Solution system, now details of the Bank account on the screen can be seen.
275. PW-1 identified his complaint (Ex.PW1/A) dated 06.04.2009 made by him to the Superintendent of Police. He deposed that in the Back office/ ECE Office, two cheques (ExPW3/A) No. TTT512799 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 229 of 263 :: 230 ::
dated 19.03.2009 for an amount of Rs.55.06 lakhs and Cheque (Ex.PW3/B) No. TTT512780 dated 18.03.2009 for an amount of Rs.51.65 lakhs favouring M/s BMPL were deposited and passed on 23.03.2009 & 21.03.2009, respectively. He further deposed that after the said cheques were passed, a telephonic call from PNB Lal Bagh Branch, Lucknow, UP informing that the said cheques were not issued by the party showing to have issued the same, was received. He further deposed that for conducting internal enquiry, the superior authority of PNB appointed the Internal Auditor as Inspector who confirmed that the cheques were not issued by the party, shown to have been issued. In his cross-examination conducted by A-1 Mukesh Jain and A-8 Benu Jain, he showed his ignorance as to who deposited the said two cheques for encashment, stating that only officials of the Collecting Branch could confirm the same.
276. PW-3 Ved Prakash Tyagi, Manager, working in Printing and Stationary Department of PNB deposed that the aforesaid cheques are genuine but alteration had been made at points A and B in the aforesaid two cheque with regard to initial six digits of Bank Account No., Branch Address, TTT series and IFS Code. The Prosecution has examined Deepak Sharma, Proprietor of M/s Ganesh Couriers who proved that the said Cheque Book was issued to him by PNB Darya Ganj Branch, Delhi, however, his testimony CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 230 of 263 :: 231 ::
with regard to handing over the said Cheque Book to A-3 Mohd. Nauman was not found credible. PW-14 Jayendra Singh, Assistant Manager in SIFCL deposed that SIFCL had no business transaction with M/s BMPL, Delhi during 2008-2009. He further deposed that only he, Sh. S.C. Gupta, Regional Manager and Sh. Sudershan Banerjee were authorised to operate the said Bank Account during 2009. He deposed that the cheque in question apeared to bear his signature and that of Sudershan Banerjee, however, the aforesaid signatures are not genuine but forged on both the cheques as neither he nor Sudershan Banerjee signed the same. The aforesaid testimonies of the witnesses and cheques in question proved that the said two cheques are forged and fabricated having not been issued by the drawer, however, it is further to be seen as to who forged the same and, thereafter, presented the said cheques for encashment.
277. As per the chargesheet, the said two cheques were fraudulently prepared but there is no allegation against any accused persons who prepared and forged the same. The Prosecution has not adduced any evidence to establish that the said two cheque were forged and fabricated by any of the accused persons and further who presented the same for encashment. The said two cheques were seized by PW-49 Inspector Bodhraj Hans vide seizure memo dated 06.04.2009 (Ex.PW27/A) & seizure memo dated 06.04.2009 (Ex.PW62/A). The cheque Ex.PW3/A was handed over to CBI by CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 231 of 263 :: 232 ::
Sh. M.K. Chaudhary. The said cheque was deposited in BoB vide pay-in-slip slips dated 20.03.2009. The aforesaid cheque bears signatures and stamps of S. Banerjee and Jayendra Singh, authorised signatories of M/s SIFCL. The cheque Ex.PW3/B was seized by PW-62 Ajeet Singh, Inspector of CBI vide seizure memo (Ex.PW62/A) from BoB, Connaught Place, New Delhi The said cheque was deposited in BoB vide pay-in-slip slip dated 18.03.2009 (Ex.PW67/A). The said cheque also bears the stamp of SIFCL and signatures of Sh. S. Banerjee and Sh. Janendra Singh.
278. PW-19 Namita Devgon, Officer of BoB proved that Current Account No. 17360 was opened jointly in the name of M/s BMPL vide Account Opening Form (Ex.PW19/A) through Mukesh Jain, Beenu Jain and Radhika Mehra were authorised persons for Banking business.
279. PW-27 Manmohan Mehta Senior Manager of BoB deposed that the cheque (Ex.PW3/A) for sum of Rs.55.06 lakhs dated 19.03.2009 bearing No. TTT512799, issued in the name of M/s BMPL reflects at serial number 4 in the outward clearing list (Ex.PW27/A2). In his cross-examination, he deposed that the aforesaid cheque (Ex.PW3/A) was put in the Box meant for clearing by the payee as per the practice prevalent in 2009 and, therefore, there is no counter-foil filed along with the cheque to indicate the CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 232 of 263 :: 233 ::
name of the depositor.
280. PW-62 Ajeet Singh deposed that under directions of his SP Sh. Bhupinder Kumar, he assisted the main Investigating Officer Inspector C.S. Prakash Narayanan in investigation in this case and on 06.04.2009, he seized cheque No. TTT512780 for sum of Rs.51.65 lakhs from BoB, Connaught Place, New Delhi dated 18.03.2009, vide production-cum-seizure memo (Ex.PW62/A).
281. PW-20 Rajeshwar Rangari, Officer of BoB deposed that the cheques Ex.PW3/A and Ex.PW3/B were deposited on 20.03.2009 and 23.09.2009 respectively for crediting these amounts in the aforesaid C.A. No. 22750200000 and the credit entries (Mark X-5 and Mark X-6) of the said cheques were entered in the aforesaid Account on 21.03.2009 and 23.03.2009 respectively. Ld. Counsel for A-1 Mukesh Jain and A-8 Smt. Benu Jain did not dispute the factum of credit of the aforesaid amounts in the aforesaid Current Account of M/s BMPL.
282. The aforementioned two cheques in question were sent to GEQD for the opinion of handwriting expert on the handwriting and signature of A-1 Mukesh Jain, A-2 Nipun Bansal, A-3 Mohd.
Nauman, A-4 Amit Aggarwal, A-5 Ganesh Lal and A-6 Chandra Bhan Singh. However, no opinion was given by PW-47, CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 233 of 263 :: 234 ::
Handwriting Expert on the aforesaid two cheques. As such, there is no evidence on record establishing the forgery committed by any of the accused with regard to the aforesaid two cheques in question. However, the fact that the said two cheques were forged and fabricated, has stood established from the evidence adduced by the prosecution. It is also proved that the amount of Rs.1,06,71,000/- stood credited to the Bank Account of M/s BMPL and the said amount was utilised by A-1 Mukesh Jain and A-8 Benu Jain being Directors of M/s BMPL. The prosecution has further succeeded in proving that out of the the aforesaid amount of Rs.1,06,71,000/- credited to the Bank account of M/s BMPL vide the aforesaid two forged and fabricated cheques, A-1 Mukesh Jain withdrew Rs.38 lakhs in cash on four different occasions through self cheques, out of which one cheque was joinly signed by A-1 Mukesh Jain and A-8 Benu Jain and remaining three cheques were signed by A-1 Mukesh Jain himself. PW-30 Sh. Virender Kumar Garg deposed that Rs.9 lakhs was paid to A-8 Benu Jain on behalf of M/s BMPL vide Ex.PW22/A1 and the remaining three cheques as per the respective amounts were paid to A-1 Mukesh Jain and in token of the receipt of the aforesaid amount, A-1 Mukesh Jain and A-8 Benu Jain had put their respective signatures on the cheques showing receipt of the payment. Further, amount of Rs.25.25 lakhs was transferred to the account of M/s AIPL on 27.03.2009 through RTGS and further an CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 234 of 263 :: 235 ::
amount of Rs.25.30 lakhs and Rs.10.06 lakhs were transferred from the account of M/s BMPL through further RTGS to the account of M/s AIPL. PW-20 Sh. Rajeshwar Rangari, Officer, Bank of Baroda proved the aforesaid transactions.
283. PW-35 Sh. Ved Prakash Jhamb, Manager, Bank of Baroda proved the aforesaid transaction in favour of M/s AIPL. PW-37 Sh.
Rahul Jain, Asst. Manager (Operations), HSBC in his testimony proved that cheque dated 28.03.2009 of Rs.25 lakhs (Ex.PW8/J2) was issued by M/s AIPL and further a cheque dated 02.04.2009 for Rs.10 lakhs (Ex.PW8/J10) was also issued by M/s AIPL.
284. The aforesaid evidence adduced by the prosecution proved that the aforesaid two cheques in question were encashed in the Bank account of M/s BMPL from the Bank account of M/s SIFCL and Rs.1,06,71,000/- were credited in the aforesaid Bank account of M/s BMPL. The prosecution has also succeeded in proving that out of the aforesaid amount so credited through the said two cheques in question, an amount of Rs.98.83 lakhs was utilised by A-1 Mukesh Jain and A-8 A-8 Benu Jain and only an amount of Rs.7.88 lakhs was found lying in the aforesaid Bank account of the accused and the same was frozen by IO. Now A-1 Mukesh Jain and A-8 A-8 Benu Jain is required to explain the circumstances of the credit of the aforesaid amount to their Bank account from the account of M/s CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 235 of 263 :: 236 ::
SIFCL under Section 106 Indian Evidence Act.
285. Defence of the A-1 Mukesh Jain culled out from the suggestions given to prosecution witnesses and examination of witnesses in defence including A-1 Mukesh Jain himself under Section 315 Cr. P.C. revealed that accused claimed that M/s BMPL, was dealing in business of garments since 2004 and in 2009, A-1 Mukesh Jain stated to have received an order of aforesaid amount from M/s SIFCL through its agent/ A-7 S.K. Bhargava for supply of embroidered shirt to M/s SIFCL for the coming elections. It is submitted by Ld. Counsel for accused persons that A-7 S.K. Bhargava in the capacity of an agent of M/s SIFCL had taken the account details of M/s BMPL and credited the aforesaid amount through two cheques in question in the Bank account of M/s BMPL under the aforesaid contract. It is further submitted that A-1 Mukesh Jain gave a sub-contract for Rs.65,000/- to Pramod Pandey, Director of M/s AIPL for the supply of embroided fabric and paid a sum of Rs.60 lakhs through RTGS to M/s AIPL. Further defence of A-1 Mukesh Jain is that M/s AIPL had also given a sub-contract to Sh. Adhiraj Kumar, Proprietor of M/s Sand Grandeur who was paid an amount of Rs.10 lakhs through Pramod Pandey. However, thereafter, on 30.03.2009, A-7 S.K. Bhargava cancelled the aforesaid order and asked for return of money and after deducting some nominal amount, Rs.88 lakhs were returned to M/s SIFCL through A-7 S.K. CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 236 of 263 :: 237 ::
Bhargava. It is submitted on behalf of A-1 Mukesh Jain and A-8 Benu Jain that aforesaid was purely a business transaction and they had not done any unlawful act and committed no offence. In order to substantiate the aforesaid defence, accused are relying upon testimony of PW-58 Adhiraj Kumar, DW-1 Sunil Luthra, DW-2 Sunil Dutta and DW-7/ A-1 Mukesh Jain himself.
286. This Court shall now examine whether the aforesaid defence pleaded by accused has been probabilised by them on the basis of preponderance of probability. A-1 Mukesh Jain has failed to bring any document or material to show that any contract was entered into between his company, i.e. M/s BMPL and M/s SIFCL through A-7 S.K. Bhargava with regard to manufacturing of any garments as is pleaded by him. His submission that said written agreement/ contract was seized by IO during the search of his premises is not believable as he has not made any complaint to any authority or even to this court that such agreement was recovered/ seized by the IO and he illegally withheld the said agreement/ contract. A specific question was put by Ld. PP for CBI to A-1 Mukesh Jain in his testimony under Section 315 Cr.P.C. as to whether he made any enquiry from the office of M/s SIFCL, Lucknow upon order regarding manufacturing of garments having been cancelled and he replied that since A-7 S.K. Bhargava was authorised representative of M/s SIFCL, he did not make any enquiry. A-1 Mukesh Jain CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 237 of 263 :: 238 ::
deposed that he had not seen any letter issued by M/s SIFCL showing A-7 S.K. Bhargav, as the authorised representative of M/s SIFCL. Defence put forth by the accused of any agreement/ contract and its cancellation between those two entities is make-believe and an afterthought.
287. Furthermore, defence of A-1 Mukesh Jain that A-7 S.K. Bhargava had taken certain amount from him after getting it withdrawn from the Bank in the presence of PW-7 P.K. Pandy has also not been proved as PW-7 in his testimony deposed that on 30.03.2009, after withdrawal of Rs.25 lakhs each from HDFC and HSBC Banks by A-1 Mukesh Jai, he left on his motorcycle. In his cross-examination, PW-7 deposed that A-1 Mukesh Jain came in chauffer driven Skoda car and one person was also sitting in the car. PW-7 did not testify that amount of Rs.50 lakhs withdrawn by A-1 Mukesh Jain was handed over to A-7 S.K. Bhargava or that he identified A-7. In his testimony under Section 315 Cr.P.C., A-1 deposed that he handed over Rs.50 lakhs to A-7 S.K. Bhargava in the presence of PW-7 P.K. Pandey and his Assistant Accountant Sunil Dutta. However, no such suggestion was given to PW-7. He had also denied that he had ever entered into any contract with M/s BMPL or Sand Grandeur. He deposed that he was the Director of M/s AIPL and came in contact with A-1 Mukesh Jain through Akhilesh Chand Shukla, CA. He testified that A-1 Mukesh Jain CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 238 of 263 :: 239 ::
informed him that he would transfer some money in his account through RTGS and he had to issue self cheque in favour of A-1 Mukesh Jain and for that, he would get commission of one and a half per cent. He nowhere stated that A-1 Mukesh Jain entered into any agreement/ contract with him regarding some order in respect of garments and no such suggestion was even given to him. Though, the case of the accused is that he handed over Rs.50 lakhs to A-7 S.K. Bhargava, but no suggestion was given to PW-7 P.K. Pandey. Furthermore, PW-60/IO of the case was given a suggestion that Rs. 88 lakhs were handed over to A-7 S.K. Bhargava while in his statement under Section 313 Cr.P.C. he did not whisper a single word in this regard. In his testimony under Section 315 Cr.P.C., A-1 Mukesh Jain deposed that on 30.03.2009 itself, he withdrew an amount of Rs.50 lakhs in cash and handed over to A-7 S.K. Bhargava and, thereafter, Rs.5 lakhs and Rs.18 lakhs on 31.03.2009 and asked for 10 days' time to pay the remaining amount.
288. DW-1 Sunil Luthra has given a different story in his testimony stating that an amount of Rs.25 lakhs was withdrawn from HDFC Bank on 30.03.2009 by PW-7 P.K. Pandey and, thereafter, he was instructed to proceed to HSBC Bank by PW-7 P.K. Pandey. He further deposed that he went to HSBC Bank, G.K.-I on his bike while PW-7 P.K. Pandey went in the car along with A-7 S.K. Bhargava and, thereafter, Rs.25 lakhs withdrawn from HDFC CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 239 of 263 :: 240 ::
Bank was given to A-7 S.K. Bhargava by PW-7 P.K. Pandey. He further deposed that again PW-7 P.K. Pandey came to HSBC Bank and withdrew Rs.25 lakhs and handed over the same to A-7 S.K. Bhargava. From the story put forth by this witness, thus, an amount of Rs.75 lakhs was withdrawn on 30.03.2009 and A-7 S.K. Bhargava and PW-7 P.K. Pandey were acquainted with each other and travelling in the same car. However, PW-7 P.K. Pandey in his testimony did not depose his acquaintance with A-7 S.K. Bhargava or travelling with him. No such suggestion was even put by Ld. Counsel for A-1 Mukesh Jain to the said witness. The testimony of this witness is not credit worthy as he failed to show any material or document to show his employment with A-1 Mukesh Jain, as he was claiming.
289. DW-2 was examined by A-1, who deposed that he was working as assistant accountant in M/s BMPL and had seen A-7 S.K. Bhargava visiting the said company. He further deposd that A-7 S.K. Bhargava brought an order of Rs. 1 crore to M/s SIFCL, Lucknow and after 5-6 days informed M/s BMPL handing over photocopies of two cheques stating that amount mentioned in the said two cheques were credited in the account of M/s BMPL. He further deposed that A-1 Mukesh Jain handed over an order for completion of the aforesaid order to M/s AIPL and paid an amount of Rs.60.61 lakhs through RTGS. However, one week thereafter, A-CC No. 131/2019
CBI Vs. Mukesh Kumar Jain & Others. Page No. 240 of 263 :: 241 ::
7 S.K. Bhargava cancelled the order of M/s SIFCL. He further deposed that after withdrawing the amount from two Banks, he counted the money himself prior to handing over the same to A-7 S.K. Bhargava. He further deposed that on the same day, A-1 Mukesh Jain had withdrawn Rs.15 lakhs on 31.03.2009. The aforesaid testimony of the witness is contrary to the testimony of other witnesses including A-1 Mukesh Jain, who deposed that he handed over Rs.23 lakhs on 31.03.2009 while this witness testified to handover Rs.5 lakhs. Upon analysis of the testimony of PW-7 and other defence witnesses, the defence put by the accused is completely demolished as the story put forth by him is not believable.
290. PW-60/ IO denied the suggestion given to him that A-1 Mukesh Jain handed over written agreement to him wherein A-7 S.K. Bhargava portrayed himself as agent of M/s SIFCL or that A-1 Mukesh Jain informed him that vide said Agreement, M/s SIFCL had made an offer through A-7 S.K. Bhargava to M/s BMPL regarding supply of garments. A-1 Mukesh Jain has failed to prove on the basis of preponderance of the probability that A-7 S.K. Bhargava had ever been agent of M/s SIFCL or that any Agreement between M/s SIFCL and M/s BMPL regarding supply of garments had been executed showing M/s SIFCL being represented by A-7 S.K. Bhargava. Assuming that the amount of Rs.1,06,71,000/- was CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 241 of 263 :: 242 ::
given to the A-1 Mukesh Jain, as advance, for supply of fabric and the order was later on cancelled by A-7 S.K. Bhargav, in that case, the money would be refunded by way of cheque in the name of M/s SIFCL and would not be paid in cash to A-7 S.K. Bhargava.
291. During the course of cross-examination conducted by A-1 Mukesh Jain and A-8 Benu Jain, even PW-60/ IO of the case has denied the suggestion given to him that A-1 Mukesh Jain refunded the amount of Rs.38 lakhs in cash to A-7 S.K. Bhargava and Rs.50 lakhs through RTGS from the Bank Account of M/s AIPL. He further denied the suggestion that A-7 S.K. Bhargava withdrew amount of Rs.50 lakhs in cash from M/s AIPL in the presence of A-1 Mukesh Jain.
292. Having considered the evidence adduced by the Prosecution, it is proved that two cheques in question were forged and fabricated, however, the Prosecution has failed to prove as to who amongst the accused forged the said two cheques. Prosecution has also proved that the two aforesaid cheques were presented and encashed into the Bank Account of M/s BMPL. As per the case of prosecution, the said amount was utilised by A1 Mukesh Jain and A8 Smt. A8 Benu Jain being the directors of the said Company. However, it is contended on behalf of A8 Benu Jain that she was only a sleeping director and was not having any role to play in daytoday affairs of CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 242 of 263 :: 243 ::
M/s BMPL. Per contra, Ld. PP for CBI has contended that A8 Benu Jain had signed on cheque of Rs.9 lakhs (Ex.PW20/A1) and the said amount was withdrawn by her and, therefore, she was actively involved in the affairs of the company. The aforesaid rival contentions are being considered keeping in view the evidence having come on record. A4 Mukesh Jain, who examined himself as DW7 deposed that he had formed the said Company in 2001 and in 2005, he started manufacturing unit of garments and started manufacturing and supply of readymade garments. He did not specify any role to A8 Benu Jain in the daytoday affairs of the company. Even in his version about the transaction of the aforesaid two cheques in question, he did not assign any role to A8 Benu Jain. Furthermore, prosecution has also neither attributed any role to A8 Benu Jain in daytoday affairs of the Company nor in alleged transaction between A4 Mukesh Jain and A7 S.K. Bhargava. In order to arrive at the guilt of A8 Benu Jain, it was incumbent upon prosecution to prove that A8 Benu Jain was also incharge and responsible along with A4 Mukesh Jain for the conduct of the business of M/s BMPL at the relevant time when the offence was committed and not on the basis of merely holding a designation or office of director in M/s BMPL. No such evidence has come on record except signing of cheque of Rs.9 lakhs by A8 Benu Jain CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 243 of 263 :: 244 ::
along with her husband Mukesh Jain. It has come on record that M/s BMPL was a functioning Company as deposed by IO/ PW60 who testified that on verification it was revealed that turnover of M/s BMPL for the year 200708 was around Rs.5 crores and balance sheet of the aforesaid Financial Year was also given to him by A1 Mukesh Jain. Thus, it can be inferred that A8 Benu Jain might have signed on the said cheque of only Rs.9 lakhs in her capacity of one of the authorised signatories as she might have signed in the past. It is settled law that an individual either as a Director or Managing Director or Chairman of the Company can be made an accused only if, there is sufficient material to prove his/ her active role coupled with the criminal intent to commit offence. As reflected from the evidence, A8 Benu Jain was only a nonexecutive director and was neither involved in daytoday affairs of running of M/s BMPL nor she was incharge and responsible for the conduct of its business and, therefore, she cannot be held liable for the transaction in respect of two cheques in question. It is proved that A-1 Mukesh Jain was handling day-today affairs of Company and it he who is the ultimate beneficiary of aforesaid fraudulent transaction of cheques in question. The plea/ defence taken by him with regard to the Contract/ Agreement with M/s SIFCL is an after-thought as he failed to prove the same. Prosecution has miserably failed to prove that any amount out the proceeds of two cheques in question was CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 244 of 263 :: 245 ::
handed over by A-1 Mukesh Jain to A-7 S.K. Bhargava or that A-7 S.K. Bhargava was involved in any conspiracy with any of the accused persons. The said two cheques bore the seal impressions of M/s SIFCL which was recovered from the possession of A-5 Ganesh Lal. Thus, prosecution has succeeded in proving beyond reasonable doubt that A-1 Mukesh Jain and A-5 Ganesh Lal hatched conspiracy amongst themselves to forge the aforesaid two cheques and thereafter presented the same for encashment. The Prosecution has succeeded in proving that A-1 Mukesh Jain, A-8 Beenu Jain and A- 5 Ganesh Lal have entered into conspiracy with one another and encashed the aforesaid two cheques in question after forging it.
Cheque No. 512796 Dated 25.03.2009 for an amount of Rs.40.53 lakhs (Ex.PW14/A)
293. Aforesaid cheque (Ex.PW14/A) was seized by IO vide memo (Ex.PW45/A) on its production by Sh. K.K. Gupta (PW-45). As per the case of prosecution, the aforesaid cheque of Rs.40.53 lakhs (Ex.PW14/A) allegedly obtained by A-3 Mohd. Nauman from Deepak Sharma (PW-9) was forged for the aforesaid amount purportedly shown to have been issued from the Bank account of M/s SIFCL maintained with PNB, Lal Bagh Branch, Lucknow favouring Emmar Creations and subsequently, deposited in Jammu & Kashmir Bank, Vasant Vihar, which Bank presented it to PNB CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 245 of 263 :: 246 ::
through RBI in CTS clearance and the same was not cleared as the signature did not tally and thus, attempt made by accused persons to get the same encashed, failed. The said cheque was deposited in J&K Bank, Vasant Vihar, Delhi on 31.03.2009 vide pay-in-slip (Ex.PW45/B8). The aforesaid cheque and pay-in-slip were seized by IO vide seizure memo (Ex.PW45/A). The cheque bears signatures of S. Banerjee and Jayendra Singh, authorised signatories of M/s SIFCL and also bears stamp of M/s SIFCL.
294. Prosecution is relying upon the testimony of PW-9 Deepak Sharma to prove that the cheque book was handed over by him to A- 3 Mohd. Nauman from which the said cheque was forged. However, while appreciating and analysing the evidence of the aforesaid witness, this court has already concluded that PW-9's testimony with regard to handing over the cheque book has no credence however it is proved that cheque in question from the said cheque book was used. Prosecution has succeeded in proving that the aforesaid cheque was forged and fabricated as PW-14 Jayendra Singh, Assistant Manager, SIFCL confirmed tht the aforesaid cheque shown to have been issued by SIFCL, was in fact never issued as SIFCL had no business transaction with Emmar Creations at any point of time and the said cheque neither bore his signature nor of Sh. S. Banerjee and the same might have been forged by the payee.
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295. Prosecution has not brought any evidence to substantiate that the aforesaid cheque was forged by any of the accused persons or it was presented by any of them. No CCTV footage was taken by the IO from the Bank concerned, i.e., Jammu & Kashmir Bank Ltd., Vasant Vihar, where the cheque was deposited. The said cheque was sent to GEQD for the opinion on the handwriting on the cheque but no opinion was sent by GEQD. However, the evidence adduced by the prosecution amply demonstrate that the said cheque was presented in the aforesaid Bank as deposed by PW-33 Sh. Ramesh Chand, Manager, PNB confirming that the cheque in question was received from Jammu & Kashmir Bank Ltd., Vasant Vihar and was put in the system on 31.03.2009. However, the same was not cleared due to 'insufficient funds' in the Bank account of payee. After seeing annexures-I & II (Ex.PW33/A), the witness has further deposed that as per the record (Annexure-II), the aforesaid cheque was not cleared for payment and the said entry was made by Ms. Anjana Sardana working as Computer Terminal Operator.
296. In the entire charge-sheet, there is nothing to suggest as to under what circumstances and who deposited the cheque in question, however, from testimonies of PW-63 Kutubddin Ahmed Khan and PW-64 Rizwanullah Khan, it is suggested that cheque in question was collected by PW-63 Kutubddin Ahmed Khan along with Javed Akhtar from Salim at the instance of M.S. Saba who CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 247 of 263 :: 248 ::
used to work with Rizwanullah Khan, stated to be the owner of M/s EC. PW-63 deposed that M.S. Saba told him that one person, namely, Salim would meet him near Delhi Gate and would give him a cheque to be handed over to M.S. Saba. He further deposed that he went to Delhi Gate in Maruti 800 Car along with Javed Akhtar, System Manager of the computer of the Company. He further deposed that after reaching at Delhi Gate, he kept sitting in the car and Javed Akhtar reached Salim and obtained one cheque from him in favour of M/s EC. PW-63 identified the cheque in question (Ex.PW14/A), deposing that it was the same cheque which was given by Salim (identified A-3 Mohd. Nauman as as Salim) to Javed Akhtar. He further deposed that the said cheque was deposited on the same date in J&K Bank, Vasant Vihar Branch, New Delhi and Javed Akhtar filled up the form and deposited the cheque in question there.
297. During cross-examination conducted on behalf of A-3, A-5, A-8 and A-10, he admitted the suggestion given to him that M.S. Saba did not tell him personally on phone anything about Salim and stated that M.S. Saba gave instructions on telephone to Javed Akhtar who told him about such instructions given by him. The said testimony of PW 63 is contrary to deposition in examination in chief wherein he deposed that M.S. Saba told him that one person namely Salim, would meet him near Delhi Gate and would give him a CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 248 of 263 :: 249 ::
cheque to be handed over to M.S. Saba. In addition to it, the said witness deposed that he and Salim were at distance of 30 feet at the time of handing over cheque in question by Salim to Javed Akhtar.
298. The best person to identify Salim (A-3 Mohd. Nauman) was Javed Akhtar who had allegedly taken the cheque in question from him but he was dropped by the Prosecution for the reasons best known to them. No Test Identification Parade was conducted in the present case as admitted by IO in his cross-examination. No site plan of the place from where cheque in question was collected was prepared. In view of the aforesaid circumstances, identification of Mohd. Nauman by PW-63 Kutubddin Ahmed Khan for the first time in court, having seen A-3 Mohd. Nauman from a distance of 30 feet after about four years ago, is very weak piece of evidence being doubtful and does not inspire confidence of this Court in veiw of settled law cited above.
299. PW-64 Rizwanullah Khan in his deposition, testified in 2007-
08, he started working as Supervisor in Limca Limited in Noida and M.S. Saba was its owner. He further deposed that M.S. Saba got opened an account in J&K Bank, Vasant Vihar Branch in the name of M/s EC in his name and he was shown as Proprietor of M/s EC but said account was being operated by M.S. Saba. He further deposed that at the end of 2008, he left the employment of M.S. CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 249 of 263 :: 250 ::
Saba and went to Bihar at his native place. In 2009, he received a call on his mobile phone from the Manager of Vasant Vihar Branch of J&K Bank, who told him that a cheque was presented for deposit in the account of M/s EC. PW-64 explained to the Manager of the Bank that he was having no knowledge of it and the said Account was being operated by M.S. Saba.
300. IO in his cross-examination deposed that he made inquiries from M.S. Saba and came to know that Kutubddin Ahmed Khan had gone to collect the forged cheque from Salim (A-3 Mohd. Nauman).
IO had further deposed that he examined M.S. Saba but did not record his statement. As per case of the Prosecution, the cheque in question was collected and deposited at the instance of Ms. Saba from whom inquiries were made and her statement was also recorded but she was cited as a witness for the reasons best known to the Prosecution. The Prosecution has failed to establish any link of any accused with M.S. Saba, however, it has been established that the cheque in question is forged and fabricated and same was attempted to be encashed by presenting it with J&K Bank, Vasant Vihar Branch, New Delhi. The seal impression of stamp of M/s SIFCL was found present on the said cheque (Ex.PW14/A) and the said stamp does not belong to M/s SIFCL which suggests that the cheque in question was forged with assistance of A-5 Ganesh Lal from whose possession, the stamp in question was recovered.
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Attempt to encash the said forged and fabricated cheque was made by presenting the same with the Bank, however, the Prosecution has failed to establish that there was any conspiracy in respect of the aforesaid cheque in question between A-5 Ganesh Lal and any other accused, as no role of any other accused except A-5 Ganesh Lal has surfaced in the evidence adduced by the Prosecution with regard to the aforesaid cheque in question. No substantive charge has been framed against A-5 Ganesh Lal for commission of any offence.
CONCLUSION
301. As noted above, all the accused persons are facing trial for commission of hatching conspiracy amongst them to defraud Bank besides commission of other substantive offenes. The evidence so far discussed revealed that there was a larger conspiracy to cheat the PNB and its customers and under the said umbrella of larger conspiracy, number of conspiracies in respect of each cheque in question was hatched between different set of accused persons. It is settled law that the gist of the offence of conspiracy is an agreement to break the law and the parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done, has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the IPC, an act would be illegal if it is an offence or if it is prohibited by law. Under CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 251 of 263 :: 252 ::
the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable. (Re-Major E.G. Barsay Vs. State of Bombay20. In the present case, the accused are also facing trial for commission of offences under Sections 120-B, 420, 467 & 468 IPC and Section 13(2) read with 13 (1)(d) of PC Act, 1988.
302. Section 420 IPC reads as under:
"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."
303. Section 415 IPC defines cheating in the following manner:
"Section 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
20. (1962) 2 SCR 195) CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 252 of 263 :: 253 ::
likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
304. In S.W. Palanitkar Vs. State of Bihar 21, it has been laid down that:
"10. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by,
(ii) (b) the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
21. ...In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating."
305. The expression 'defraud' has been explained in Dr. Vimla Vs. Delhi Administration22 and it has been held that 'defraud' involves two elements namely, deceit and injury to the person deceived. Injury has been explained to mean something other than economic loss, that it, deprivation of property, whether movable and immovable, or of money and it will include any harm whatever
21. 2002 (1) SCC 241
22. AIR 1963 SC 1572 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 253 of 263 :: 254 ::
caused to any person in body, mind, reputation or such others. A benefit or advantage to the deceiver will almost cause loss or detriment to the deceived. In the instant case, the deceived is the Bank and its customers and there is corresponding loss to them. The case of the prosecution under Section 420 of IPC is that the accused persons in criminal conspiracy deceived and dishonestly induced or attempted to deceive and to dishonestly induce the Banker to encash the forged cheques. In the present case, Prosecution has established beyond reasonable doubt that the Banker was dishonestly induced by the accused persons, namely, A-1 Mukesh Jain, A-2 Nipun Bansal, A-4 Amit Aggarwal, A-5 Ganesh Lal and A-6 Chandra Bhan Singh to honour and encash the impugned cheques and such inducements have been established by the the Bank officials who processed/produced the impugned cheques and there is material on record to show that Bank was fraudulently induced to encash the impugned cheques and hence, case under Section 420 IPC read with Section 120B IPC is made out against the accused persons.
306. The definition of forgery as provided under Section 463 of IPC is as under:
"463. Forgery. Whoever makes any false documents 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 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 254 of 263 :: 255 ::
or that fraud may be committed, commits forgery."
307. Forgery pertains to making of a false document which is defined in Section 464 of IPC. Section 464 of IPC read as under:
"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 document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature with the intention of causing it to be believed that such document, or a part of document, electronic record or digital 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 - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly - who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alteration."
Section 467 of IPC criminalizes making of forged documents. Section 467 provides that whoever forges a document which purports to be a valuable security (such CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 255 of 263 :: 256 ::
as a cheque) shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 468 of IPC criminalizes commission of forgery for the purpose of cheating. Accused persons can be punished under Section 467 and Section 468 of IPC, if they fall within the definition of the meaning of "whoever makes". The essential ingredients for commission of the offence under Section 467 of IPC are listed. Under Section 468 of IPC, in addition to the above factors, it is also to be established that the forgery was committed for the purpose of cheating. The essential ingredients for an offence under Section 467 IPC are:
a) the document in question is forged;
b) the accused forged it; and
c) the document is a valuable security.
308. In Shiela Sebastian vs. R. Jawaharaj and another 23, it was held that:
"Keeping in view the strict interpretation of penal statute i.e. referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery".
Therefore, in view of the above case laws, it is crystal clear that it is the duty of the prosecution to establish as to who had forged the signatures of authorised signatories on the impugned cheques. Therefore, whilst it is established
23. (2018) 7 SCC 581 CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 256 of 263 :: 257 ::
that the impugned cheques were forged, the prosecution in order to bring home the charge under Section 467 of IPC also has to establish that it was forged by any of the accused persons. However in the present case as noted above, prosecution has failed to establish that they have been forged by any of the accused persons The signatures of the accused persons ought to have been compared with the signatures on the impugned cheques, however the same has not been done. Consequentially, on the basis of the aforesaid reasons, the charge for commission of forgery punishable under Section 467 and Section 468 of IPC in pursuance of criminal conspiracy by the accused persons is not made out.
309. Section 471 of the IPC is reproduced below:
"471. Using as genuine a forged document or electronic record. - Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record."
310. The key ingredient of offence under Section 471 of IPC is using a forged document as genuine knowing that the same is forged. Therefore, knowledge that the document being used is forged, is imperative to bring home the verdict of guilty against the accused person. In the present case, it has been established by the prosecution by adduction of evidence that the impugned cheques were forged. The next issue to be determined is whether the accused persons used the impugned cheques dishonestly or fraudulently knowing them or having a reason to believe that they were forged.
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Prosecution has succeeded in proving by way of circumstantial evidence that the accused persons, namely, A-1 Mukesh Jain, A-2 Nipun Bansal, A-4 Amit Aggarwal, A-5 Ganesh Lal and A-6 Chandra Bhan Singh had knowledge that the cheques were forged and, therefore, they are liable to be convicted under Section 471 of IPC.
311. Applying the aforesaid settled law to the facts and circumstances of the present case and on the basis of the evidence discussed above, the Prosecution has succeeded in proving by way of circumstantial evidence that there were several conspiracies hatched between different accused persons at different points of time to cheat the Bank and its customers by forging and encashing and attempting to encash different cheques. Prosecution has succeeded in proving that a conspiracy was hatched between the A-6 Chandra Bhan Singh, A-5 Ganesh Lal and A-2 Nipun Bansal to cheat Bank and in pursuance of said conspiracy, cheque No. TSP 786680 dated 23.02.2009 (Ex.PW4/A) for sum of Rs.40 lakhs was forged showing it to have been issued from the Bank Account of M/s. BCC and thereafter deposited with the HDFC Bank vide deposit slip (Ex.PW13/B) filled up in the handwriting of A-6 Chandra Bhan Singh. The said cheque is from the Cheque Book shown as 'destroyed' in PNB Lal Bagh Branch where A-6 Chandra CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 258 of 263 :: 259 ::
Bhan Singh was employed. It is also proved that A-5 Ganesh Lal was also part of the said conspiracy as the cheque book of TSP series from which leaf of cheque in question was taken and photocopy of the cheque having specimen signatures of authorised signatories of M/s BCC along with its counterfeit seal were found in his possession. It is also proved that beneficiary of the said forged cheque was A-2 Nipun Bansal who failed to give any explanation much less the plausible explanation as to under what circumstances, he received the said amount. Thus, all the three accused persons, namely, A-6 Chandra Bhan Singh, A-5 Ganesh Lal and A-2 Nipun Bansal are liable to convicted under Section 420, 471 IPC read with Section 120B IPC. The Prosecution has also succeeded in proving the substantive offences against A-2 Nipun Bansal as he induced PNB for releasing an amount of Rs.40 lakhs by using forged and fabricated cheque and thus, he has committed offences under Sections 420/ 471 IPC. However, the Prosecution has failed to prove substantive charge against A-6 Chandra Bhan Singh for commission of offence under Section 13(1)(d) of PC Act, as it is not proved that A-6 Chandra Bhan Singh by corrupt or illegal means misused his position as Public Servant under the circumstanced enumerated in Section 13(1)(d) of PC Act. No substantive charge has been framed against A-5 Ganesh Lal.
312. The Prosecution has further succeeded in proving that the CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 259 of 263 :: 260 ::
cheques (Ex.PW3/A and Ex.PW3/B) for Rs.55.06 lakhs and Rs.51.65 lakhs, respectively issued in favour of M/s BMPL were forged and fabricated and a conspiracy was hatched amongst A-1 Mukesh Jain and A-5 Ganesh Lal as the aforesaid amounts were credited in the Bank Account of M/s BMPL by way of encashment of the aforesaid cheques having signatures of authorised signatories of M/s SIFCL and its seal impressions, which photocopies of cheques showing signatures of authorised signatories of M/s SIFCL and its seal were found in possessions of A-5 Ganesh Lal and the said amounts were utilized by A-1 Mukesh Jain. Thus, A-1 Mukesh Jain and A-5 Ganesh Lal are convicted under Sections 420/ 471 read with Section 120B IPC. A-1 Mukesh Jain is also convicted for substantive offences under Sections 420/ 471 IPC as he induced PNB to release the aforesaid amounts by using forged and fabricated the cheques. No substantive charge was framed against A-5 Ganesh Lal in this regard. However, prosecution has failed to prove beyond reasonable doubt that A-8 Benu Jain was part of the aforesaid conspiracy or that she committed any substantive offence and thus she is acquitted of the aforesaid charges.
313. The Prosecution has further succeeded in proving that the cheque bearing No. TTT 512776 dated 17.03.2009 for Rs.1,58,70,000/- was forged showing to have been issued from the Bank Account of M/s UPSRTC in favour of M/s LPO in pursuance CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 260 of 263 :: 261 ::
to hatching of a conspiracy between A-4 Amit Aggarwal and A-5 Ganesh Lal to defraud PNB by presenting the aforesaid cheque under the forged signatures of authorised signatories of M/s UPSRTC and its counterfeit seal impression, which were found in possessions of A-5 Ganesh Lal and handwriting of A-4 Amit Aggarwal was found on the said cheque. The said cheques could not be encashed as forgery was detected and thus, A-4 Amit Aggarwal and A-5 Ganesh Lal are convicted under Section 420, 471 read with Section 120B IPC and Section 511 IPC. The Prosecution has failed to prove that the said cheque was forged and fabricated by A-4 Amit Aggarwal as signature was not found on the same and thus, he is liable to be acquitted of substantive offences under Sections 467/ 468 IPC read with Section 511 IPC. No substantive charge has been framed against A-5 Ganesh Lal.
314. So far as the allegations in respect of attempt of withdrawing of Rs.65 lakhs by forging and fabricating the cheque by the accused persons, are concerned, the Prosecution has failed to prove that the cheque for sum of Rs.65 lakhs was ever forged and fabricated as no such cheque was produced by the Prosecution.
315. In respect of cheque (Ex.PW3/C) dated 02.03.2009 for an amount of Rs.4.50 lakhs and cheque (Ex.PW3/D) dated 04.03.2009 for an amount of Rs.3.65 lakhs favouring Shahid, Prosecution has CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 261 of 263 :: 262 ::
failed to prove that any conspiracy was hatched amongst accused persons to forge and fabricate the said cheques and to present the same for encashment, however, it is proved that the said cheque was forged and fabricated by putting seal of M/s BCC which was found in possession of A-5 Ganesh Lal. No substantive charge has been framed against A-5 Ganesh Lal and, therefore, he is not liable to be convicted for any offence in respect to the said cheques.
316. So far as the allegations in respect of Cheque No. 512796 for sum of Rs.40.53 lakhs (Ex.PW14/A) purportedly issued from the Bank Account of M/s SIFCL favouring M/s EC are concerned, Prosecution has failed to prove that any conspiracy was hatched amongst accused persons to forge and fabricate the said cheque and presented the same for encashment, however, it is proved that the said cheque was forged and fabricated by putting seal of M/s SIFCL which was found in possession of A-5 Ganesh Lal. No substantive charge has been framed against A-5 Ganesh Lal and, therefore, he is not liable to be convicted for any offence in respect to the said cheque.
317. In view of the aforesaid discussion, A1 Mukesh Jain, A-2 Nipun Bansal, A-5 Ganesh Lal and A-6 Chandra Bhan Singh are convicted for offence punishable under Sections 420/471 IPC read with Section 120B IPC. A-1 Mukesh Jain and A-2 Nipun Bansal CC No. 131/2019 CBI Vs. Mukesh Kumar Jain & Others. Page No. 262 of 263 :: 263 ::
also stand convicted for substantive offence punishable under Section 420/471 IPC. A-4 Amit Aggarwal and A-5 Ganesh Lal are convicted for offence punishable under Sections 420/ 471 read with Section 120B IPC and Section 511 IPC.
318. A-7 S.K. Bhargava, A-9 Jamir Ahmad and A-8 Benu Jain are acquitted of the charges framed against them. Accused persons namely, A-3 Mohd. Nauman and A-10 Raje @ Rajeev have already expired and proceedings against them have already been abated.
319. In compliance of the provisions of Section 437A Cr. P.C. and on the direction of this Court, all the accused persons have submitted their respective personal bonds and surety bonds which have been accepted.
320. Put up for arguments on quantum of sentence on behalf of A-1 Mukesh Jain, A-2 Nipun Bansal, A-4 Amit Aggarwal, A-5 Ganesh Lal and A-6 Chandra Bhan Singh on 29.11.2023.
Announced in the open Court MOHD
Digitally signed by
MOHD FARRUKH
on this 25th day of November, 2023 FARRUKH Date: 2023.11.25
16:34:41 +0530
(Mohd. Farrukh)
Special Judge, (PC Act)/ CBI11,
Rouse Avenue Courts, Delhi
25.11.2023
CC No. 131/2019
CBI Vs. Mukesh Kumar Jain & Others. Page No. 263 of 263