Delhi District Court
Cbi vs . 1. Rajesh Kohli, on 7 December, 2012
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CBI case . No.22/11
IN THE COURT OF SH. N. K. KAUSHIK
SPECIAL JUDGE, PC ACT, CBI,
DWARKA COURTS, NEW DELHI
CBI Case No. 22/11
Date of Institution: 27.01.2003
Date on which Judgment Pronounced: 20.11.2012
Decision: Conviction
CBI case no. 22/11
RC no. 1(E)/2001/EOWI/ New Delhi
In the matter of:
CBI versus. 1. Rajesh Kohli,
The then Divisional Manager,
National Insurance Ltd.,
DOX, New Delhi.
R/o 187, Pragati Apartment,
Club Road, Paschim Vihar,
New Delhi.
2. Devender Kumar Garg,
S/o Late Sh. R.S. Chananmal,
R/o 491, Model Town
(Urban Estate), Bhatinda,
Punjab.
3. Arvind Kumar Sharma,
S/o Late Sh. Shambhu
Nath Sharma,
R/o GH2/122B,
Ankur Apartments,
Paschim Vihar, New Delhi63.
4. Adarsh Agarwal,
Manager,
M/s Commercial Syndicate,
3846, Churiwalan, Delhi6.
.............Accused persons
CBI vs. Rajesh Kohli & Ors. 1 of 90 pages
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CBI case . No.22/11
JUDGMENT
1. This is a corruption case under Prevention of Corruption Act, 1988, registered by the CBI, relating to the fraudulent insurance claim wherein consignor, consignee and transporter were fake and nonexistence at the given address, the survey and recovery were bogus and fake, fabricated and forged documents were issued, by the accused persons, in pursuance to an organised, systematic and well knit criminal conspiracy by the accused persons, who all acted in unison.
2. The case set up by the prosecution is that marine policy no. 21441716/97 was issued on 28.08.97 for Rs.20 Lakh, for dispatch of consignment of edible oil and non edible oil from M/s Roshan Industries, Mansa Road, Bhatinda to the Insured Company i.e. M/s Super Traders, 66, Star Apartments, SectorIX, Rohini, Delhi82.
3. It is further stated that the consignment worth Rs.
4,56,000/ was allegedly dispatched, vide GR no. 1049, dated 18.09.97 of M/s Satguru Transport Co., Shop no. 2, CBI vs. Rajesh Kohli & Ors. 2 of 90 pages 3 CBI case . No.22/11 Gali no. 8, Op. DAV College, Bibiwala Road, Bhatinda.
4. That the insured in this case i.e. M/s Super Traders, vide their letter, dt. 19.09.97 informed the Divisional Office about the loss of the consignment.
5. It is further alleged that accused D.K. Garg was purportedly, appointed by Bhatinda Divisional Office to carry out the survey. That Bhatinda Divisional Office, vide their letter, dated 20.10.97, had forwarded the report of D.K. Garg, which was found to be fake.
6. It is further alleged that during investigation, M/s Roshan Industries, the consignor in this case, was found not existing at Bhatinda. That M/s Satguru Transport Co. was also found not in existence at Bhatinda.
7. It is further alleged that accused D.K. Garg was found to be the owner of M/s Super Trader. That the said fact was established from the records of Union Bank of India, Mangolpuri, Delhi. That, it is, therefore, clear that in this case, the Insured and the surveyor was one and the same person.
CBI vs. Rajesh Kohli & Ors. 3 of 90 pages 4 CBI case . No.22/11
8. It is further alleged that the claim note was recommended by Sh. G.C. Vij, the then Administrative Officer, which was passed by accused Rajesh Kohli, the then Divisional Manager, for Rs.2,93,157/.
9. It is further alleged that M/s Commercial Syndicate was appointed as a recovery agent, which deposited only Rs. 29,000/, as recovery.
10. It is further alleged that it was disclosed by accused Adarsh Agarwal of Commercial Syndicate that they had sent registered letter to M/s Satguru Transport Co. Bhatinda but the said letter returned back undelivered due to non existence of the addressee.
11. It is further alleged that the aforesaid fact was informed to accused, Rajesh Kohli, the then Divisional Manager, accordingly, who advised accused Adarsh Agarwal not to meet the Insured. That subsequently, accused Rajesh Kohli gave them two cheques of recovery, amounting to Rs.29,000/and informed that the transporter had changed their address and also that he had procured the recovery CBI vs. Rajesh Kohli & Ors. 4 of 90 pages 5 CBI case . No.22/11 from them. That he then asked accused Adarsh Agarwal of M/s Commercial Syndicate to prepare his bill for recovery and get the cheque deposited. That accused Adarsh Agarwal did follow the course and fell in line.
12. That it is, therefore, clear that the claim has been fabricated by accused Sh. D.K. Garg, in connivance with accused Rajesh Kohli, the then Divisional Manager.
13. The case of the prosecution, in brief, thus is that during the year 19971998, at New Delhi and other places, accused persons were party to a criminal conspiracy by having agreed to do an illegal act i.e. to cheat National Insurance Company Ltd., Divisional OfficeX, New Delhi, by fraudulently inducing it to sanction claim insurance in the name of M/s Super Traders, 66 Star Apartments, Sector IX, Rohini, Delhi, a nonexisting firm, under the proprietorship of accused Devender Kumar Garg, to the extent of Rs.2,93,157/ on the basis of forged, bogus & false documents i.e. invoice, GR Survey Report etc.
14. Further, accused Devender Kumar Garg, in furtherance of the aforesaid criminal conspiracy, obtained Marine Policy CBI vs. Rajesh Kohli & Ors. 5 of 90 pages 6 CBI case . No.22/11 no. 21441716/97 for sending a consignment of edible oil and non edible oil from M/s Roshan Industries to M/s Super Traders, Delhi through goods receipt no. 1044 of M/s Satguru Transport Company, Bhatinda.
15. Further, accused Devender Kumar Garg, proprietor of M/s Super Traders, in furtherance of the aforesaid criminal conspiracy, reported to NIC Ltd DOX, New Delhi, Bhatinda about the damage/loss of the consignment and that accused Rajesh Kumar Kohli had deputed accused Devender Kumar Garg as surveyor for the survey.
16. Further, accused Devender Kumar Garg had submitted bogus survey report, without conducting survey and that accused Rajesh Kohli provided documents for processing and approved the claim of Rs.2,93,157/ in favour of M/s Super Traders on the basis of false, forged and bogus documents and that the accused Devender Kumar Garg received the cheque number 896995 of claim amount & deposited in his account no. 28090 and that the co accused Adarsh Agarwal of M/s Commercial Syndicate was appointed as recovery agent, who deposited false recovery amount of Rs.29,000/ and received recovery fee, for which CBI vs. Rajesh Kohli & Ors. 6 of 90 pages 7 CBI case . No.22/11 he was not entitled to as no recovery was effected by him from the transporter and that accused Arvind Kumar Sharma had issued cheque to deposit the recovery amount. All accused persons, thus, are alleged to have committed offences punishable, under section 120(B) read with section 420, 467, 468, 471, IPC and section 13(2) read with section 13(1)(d) of Prevention of Corruption Act, 1988.
17. Further, in furtherance of the aforesaid criminal conspiracy, during the period 199798 at Delhi and other places, accused Rajesh Kumar Kohli, being a public servant in the capacity of Divisional Manager, NIC Ltd., Divisional OfficeX, New Delhi, by use of illegal means and abusing his official position, sanctioned claim amount of Rs.2,93,257/, in favour of M/s Super Traders, Delhi, on the basis of false, forged and bogus documents and thereby enabled the accused Devender Kumar Garg, proprietor of M/s Super Traders, Delhi to obtain pecuniary advantage to the tune of Rs.2,93,257/ and corresponding loss to the NIC Ltd., Divisional OfficeX, New Delhi. The accused, thus, is alleged to have committed an offence punishable under section 13(2) read with section 13(1)(d) of the CBI vs. Rajesh Kohli & Ors. 7 of 90 pages 8 CBI case . No.22/11 Prevention of Corruption Act, 1988.
18. Further, during the aforesaid period at Delhi and other places accused Devender Kumar Garg, dishonestly induced DOX to sanction insurance claim of Rs. 2,93,257/, in favour of M/s Super Traders, Delhi, on the basis of false, bogus and forged documents i.e. invoice, survey report, GR etc and received a cheque of claim amount, which was credited in A/c no. 28090 of M/s Super Traders, Delhi, of which he was the proprietor. He, thus, is alleged to have committed an offence, punishable under section 420 IPC.
19. Further, during the aforesaid period at Delhi and other places, accused Devender Kumar Garg, fraudulently used false, forged and bogus documents i.e. invoice, G. R. Survey Report, etc. as genuine for the purpose of cheating, knowing well that those documents were forged, false and bogus. Accused, thus, is alleged to have committed an offence, punishable under section 471 read with sections 467 and 468 IPC.
20. Further, during the aforesaid period at Delhi and other CBI vs. Rajesh Kohli & Ors. 8 of 90 pages 9 CBI case . No.22/11 places, accused Devender Kumar Garg was appointed as surveyor for survey but he did not carry out survey and submitted false survey report. Accused, thus, is alleged to have committed an offence punishable, under section 468 IPC.
21. Further, during the aforesaid period at Delhi and other places, accused Arvind Kumar Sharma had issued cheques for depositing the recovery amount and recovery fee from his account no. 4577 in connivance with accused D.K. Garg, Adarsh Aggarwal and other persons, which were deposited as recovery amount in the claim of M/s Super Traders, Delhi. Accused Arvind Kumar Sharma is thus, alleged to have committed an offence, punishable under section 420 IPC.
22. Further, during the aforesaid period at Delhi and other places, accused Adarsh Kumar Aggarwal was appointed as recovery agent, being proprietor of M/s Commercial Syndicate and he submitted false recovery report in claim of M/s Super Traders, Delhi and he received recovery fee, for which he was not entitled. Accused, thus, is alleged to have committed an offence, punishable under section 468 CBI vs. Rajesh Kohli & Ors. 9 of 90 pages 10 CBI case . No.22/11 IPC.
23. Primafacie, offences under section 120B read with sections 420, 467, 468, 471 IPC and section 13(2) read with section 13(1)(d) of Prevention of Corruption Act, 1988 against all the accused persons and substantive offences under section 13(2) read with section 13(1)(d) Prevention of Corruption Act, 1988 against accused Rajesh Kumar Kohli, under sections 420 and 471 read with sections 467 & 468 IPC against accused Devender Kumar Garg, under section 420 IPC against accused Arvind Kumar Sharma and under section 468 IPC against accused persons namely, Devender Kumar Garg & Adarsh Aggarwal were made out.
24. Charge, accordingly, was framed against the accused persons, to which, they pleaded not guilty and claimed trial.
25. The prosecution, in order to substantiate its claim and contentions, examined 25 witnesses, in all.
26. Thereafter, the accused persons were examined under CBI vs. Rajesh Kohli & Ors. 10 of 90 pages 11 CBI case . No.22/11 section 313 Cr. P.C.
27. Defence has also produced three witnesses, including accused persons Rajesh Kohli and Adarsh Agarwal, in support of their contentions.
28. The prosecution, has contended that the case of the prosecution has been duly proved, in view of the material that has appeared on record. That all the prosecution witnesses have supported and proved the prosecution version beyond any pale of doubt.
29. On behalf of the defence, on the other hand, it has been stated that it has not been proved.
30. The defence has also preferred to file written arguments, which are on record.
31. At the very outset, it is to be noted that there is no dispute over the propositions of law enunciated in the case law, mentioned in the written arguments of the defence. However, in view of the circumstances and documents, proved on record, the same do not help the defence, at all. CBI vs. Rajesh Kohli & Ors. 11 of 90 pages 12 CBI case . No.22/11
32. I have carefully gone through the entire relevant material appearing on record and have given considered thought to the arguments that have been advanced, at the bar. My findings are as under:
33. PW1, Sh. A.K. Seth was the Vigilance Officer, who was posted in Vigilance Department of National Insurance Company during the period from January, 1992 to March, 2003.
34. PW1 has deposed that he had conducted enquiry in this case, on the basis of source information, which was collected, in respect of fraudulent marine claims in DOX. That he was assisted by Mr. A.L. Gambhir and Mr. Anil Kumar Tiwari during investigation. That after completing investigation, he along with said Mr. A.L. Gambhir and Mr. Anil Kumar Tiwari, had prepared the report and sent it to CVO, Head Office, Vigilance Department, Calcutta.
35. PW1 has proved the said investigation report, consisting of five pages(which includes the claim of M/s Super Traders), which is Ex.PW1/A, having his signatures at CBI vs. Rajesh Kohli & Ors. 12 of 90 pages 13 CBI case . No.22/11 point A and that of Mr. A.K. Tiwari at pt. B, which he duly identified.
36. PW1 has further proved the letter, dated 05.09.2002, which is Ex.PW1/B and vide which, he sent the documents to SP, CBI, EOWI, New Delhi, bearing his signatures at pt. A.
37. PW1 has further deposed that he had examined the claim file no. 351000/2144/97/98/38R456, regarding M/s Super Traders, which has been proved as Ex.PW1/C (consisting of 43 sheets).
38. PW1 has further deposed that M/s Pooja International and M/s Honey International were among the approved recovery agents. He has further deposed that all the divisional offices, which were in the jurisdiction of DRO I & II, were authorized to appoint any of the approved recovery agents and that these approved recovery agents were for DOX and DOXIII.
39. PW2, Sh. Balwant Singh was the postman, who was posted in Head Post Office, Civil Lines, Bhatinda, for the last twenty years. He has further deposed that he had been CBI vs. Rajesh Kohli & Ors. 13 of 90 pages 14 CBI case . No.22/11 delivering dak in gali no. 8, opposite DAV College, Bibi Wala Road, Bhatinda, since 1982.
40. PW2 has further deposed that he had received 23 letters in the name of the company M/s Satguru Transport Company, Gali no. 8, opposite DAV College, Bibiwala Road, Bhatinda, during the year 199596 and that when he went to the deliver the same, the alleged owner of the said company, Sh. Ram Kishan refused to receive the same.
41. PW2 has further deposed that there was another firm in the name of M/s Lakhmi Transport Company, Gali no. 8, Shop no. 6, which also belonged to said Sh. Ram Kishan.
42. PW3, Sh. Anil Kumar Tiwari, was posted as Administrative Officer in Vigilance Department of National Insurance Company during the period from 1997 to 2000.
43. PW3 has reiterated the report, Ex.PW1/A, which was prepared by him along with PW1, Sh. A.K. Seth and Mr. A.L. Gambhir, which includes the claim of M/s Super Traders. He has identified his signatures at point B and that of PW1, Sh. A.K. Seth, at pt. A, on the said report. CBI vs. Rajesh Kohli & Ors. 14 of 90 pages 15 CBI case . No.22/11
44. PW3 has further deposed that he had gone through the file, which is Ex.PW1/C, regarding claim of M/s Super Traders, consisting of 43 pages, while submitting the said report. He has thus, corroborated the version of PW1.
45. PW4, Sh. Krutivas Mahapatra was posted as Chief Vigilant Officer in National Insurance Company Ltd., Calcutta, from December, 1997 to March, 2002. He has deposed that he had received the report, dated 28.09.1999, which was prepared by PW1, Sh. A.K. Seth, the then Vigilance Officer along with PW4, Sh. A.K. Tiwari and which was also signed by them.
46. PW4 has further deposed that he had found that six false marine claims, including the one in question, amounting to Rs.15,93,568/ were settled in DivisionX. That after getting approval from Chairman cum Managing Director, he had referred the matter to the CBI, on 29.09.2000. He has further deposed that thereafter, he made a complaint to the CBI, copy of the complaint has been proved as Ex.PW4/1.
CBI vs. Rajesh Kohli & Ors. 15 of 90 pages 16 CBI case . No.22/11
47. PW4 has also reiterated, the report, Ex.PW1/A, which was submitted by PW1, Sh. A.K. Seth. He has further deposed that any party cannot be appointed as 'surveyor' in his own case, even though qualified for it.
48. PW5, Sh. Visveshwar Nath is another independent witness. He has deposed that he came to Delhi in the year 1995 along with his brother in law, B.N. Tiwari, who was at that time, working in National Insurance Ltd. That the said Sh. B.N. Tiwari introduced him to accused Rajesh Kohli and requested him to arrange a job for him. That he worked with accused Rajesh Kohli for about two and half years, in his office. That he used to go out for receipt and delivery of post, on behalf of accused Rajesh Kohli. That he used to be paid Rs.1,000/, per month, as wages.
49. PW5 has further deposed that in the year 1999, he became insurance agent for Division no. X of National Insurance Company Ltd and his agency number was 10080. That he obtained the said agency himself from Sh. C.M. Malhotra, the then Divisional Manager. That he subsequently, on the advise of accused Rajesh Kohli, opened a saving bank account in Asaf Ali Branch of Bank of Baroda, perhaps by CBI vs. Rajesh Kohli & Ors. 16 of 90 pages 17 CBI case . No.22/11 the end of the year 1995 or in the beginning of the year 1996.
50. PW5 has further deposed that he used to deposit and withdraw money out of the said account and the amount withdrawn, was handed over by him to accused Rajesh Kohli. That generally, one cheque in a month was issued by accused Rajesh Kohli, which was deposited by him in the bank and that the amount withdrawn, was handed over by him to accused Rajesh Kohli.
51. PW5 has further deposed that accused Vinod Kumar Bhutani also used to give him cheques in his name, which were deposited by him in the aforesaid bank account. That he used to withdraw cheque amount from the bank and hand over it either to accused Rajesh Kohli or in his absence, to Vinod Bhutani, as was instructed by accused Rajesh Kohli.
52. PW5 has further deposed that on the instructions of accused Rajesh Kohli, he had opened another bank account in Jeevan Bharti Building Branch of Canara Bank. That subsequently, their office was shifted from Asaf Ali CBI vs. Rajesh Kohli & Ors. 17 of 90 pages 18 CBI case . No.22/11 Road to 54 Hanuman Road in the beginning or probably by the end of 1996. That accused Rajesh Kohli as well as V.K. Bhutani had asked him 23 times to issue a blank cheque but he had not obliged them. That thereafter, he had closed his account in Canara Bank, in 1998. That subsequently, his agency was also closed.
53. PW5 has further deposed that in Bank of Baroda, Asaf Ali Branch, his saving bank account number was 30645 and in Canara bank, his account no. was 28415. He has further deposed that he had withdrawn a sum of Rs. One Lakh and odd amount out of the aforesaid two accounts, which he handed over to accused Rajesh Kohli. He has further deposed that he was submitting income tax returns regularly, since the year 1999.
54. PW6, Sh. Amiya Kumar has deposed that in the year 1981, he was Assistant Administrative Officer in the National Insurance Company. He has deposed in detail about the procedure, which ought to have been followed by the competent authority for passing the marine claim.
55. PW6 has further deposed that the file in respect of M/s CBI vs. Rajesh Kohli & Ors. 18 of 90 pages 19 CBI case . No.22/11 Super Traders, which is Ex.PW1/C, does not contain confirmation of compliance of section 64 VB of Insurance Act.
56. PW7, Sh. Jagat Singh was posted as Senior Manager in the Indian Overseas Bank, on 01.05.2001. He has proved the letter, dated 16.05.2002, copy of which is Ex.PW7/A. The said letter was addressed to Sh. Alok Mittal, SP, CBI, bearing his signatures at pt. A, which have been duly identified by him. He has also identified the signatures of Sh. K.K. Soni, the then Chief Manager on the said letter, which contains the details of four cheques.
57. PW8, Sh. P.K. Aggarwal has deposed that in February, 2001, he was posted in the Vigilance Department of National Insurance Company Ltd., having its office at Jeevan Bharti Building, Parliament Street, New Delhi.
58. PW8 has further deposed that on 08.02.01, he had handed over six claim files to the Investigating Officer at its office at Lok Nayak Bhawan, New Delhi, which have been, collectively, exhibited as Ex.PW1/C, vide seizure memo, copy of which is Ex.PW8/A(running into two pages). He CBI vs. Rajesh Kohli & Ors. 19 of 90 pages 20 CBI case . No.22/11 has duly identified his signatures on the said seizure memo, at pt. A.
59. PW9, Smt. Hem Lata Ahuja was posted as Stenographer in DOX, National Insurance Company Ltd in October, 2001.
60. PW9 has further deposed that she did not have any personal knowledge, in respect of any of the case and that whatever, she had done, she had done it in the capacity of a stenographer on the dictation of accused Rajesh Kumar Kohli.
61. PW10, Sh. K.K. Soni has deposed that he was the Chief Manager in Parliament Street Branch in India Overseas Bank, in May, 2002. He reiterated letter, already Ex.PW7/A, which was written by him to Sh. Alok Mittal, the then SP, CBI, New Delhi. He has identified his signatures at pt. A, on the said letter.
62. PW11, Sh. Deepak Choudhary was Assistant Administrative Officer in DOX, in the year 2001. He has deposed that he had joined as Assistant Administrative CBI vs. Rajesh Kohli & Ors. 20 of 90 pages 21 CBI case . No.22/11 Officer, on 15.04.98. That in the year 1998, accused Rajesh Kumar Kohli was the Incharge Divisional Manager and he remained Incharge in the department till August or September, 1998, and he, thereafter, resigned.
63. PW11 has further deposed that he was looking after the accounts department since his joining and his duties included the issuance of receipts for premium recovered and to disburse the payments, approved by competent authority.
64. PW11 has further deposed in detail about the procedure for issuance of receipt in their department.
65. PW11 has further deposed after going through the bill of recovery agent, M/s Commercial Syndicate, dated 30.06.98 for sum of Rs.3300/ (which is at page no. 42 in file Ex.PW1/C, pertaining to M/s Super Traders) that the said amount was paid to Commercial Syndicate, vide cheque no. 103512, dated 06.07.1998, which has been reflected at pt. X, in red encircled portion.
66. PW11 has further proved the statement of commission, CBI vs. Rajesh Kohli & Ors. 21 of 90 pages 22 CBI case . No.22/11 copy of which is Ex.PW11/E, vide which, commission was paid to the agent on the premium of the insured. The said statement bears the signatures of Sh. Amiya Kumar at pt. A and his own initials at pt. B, which have been duly identified by the witness. He has further deposed that the name of the agent was Sh. B.N. Tiwari.
67. PW11 has further deposed that file, Ex.PW1/C, pertaining to M/s Super Traders contains the copies of documents, which were given to the tracer/recovery agent for effecting the recovery.
68. PW11 has further deposed that accused V.K. Bhutani was the Accounts Officer, prior to him. That the underwriting documents included proposal letter/proposal form, copy of premium receipt, copy of policy document, the correspondence, relating to accepting the insurance and pre dispatch inspection, if any, and that the underwriter was the person, who had accepted and issued the policy.
69. PW11 has further deposed about the sum assured in respect of the insured.
CBI vs. Rajesh Kohli & Ors. 22 of 90 pages 23 CBI case . No.22/11
70. PW11 has further deposed that file of M/s Super Traders, does not contain the copy of policy, however, on page 23 of claim note, Ex.PW3/D3, which is pertaining to M/s Super Traders, it has been mentioned that it was an Open Marine Declaration Policy and that the amount of the particular declaration as on 18.09.1997, was Rs.4,56,000/.
71. On being asked specifically, about Open Policy, PW11 has deposed that Open Policy is issued to a person on the basis of a turnover and he is supposed to give the declaration for each & every transaction to the insurance company for insuring the same, under open policy and declarations are to be given compulsorily, within a particular period as stipulated, within the policy itself. He has further deposed that if the sum assured is exhausted, then no declaration is adjusted. He has further deposed that the underwriting means booking of insurance business and before booking to check the business and to see its viability. He has further deposed that the underwriting dockets were not available in the file and as such, he could not confirm as to whether section 64 of VB Insurance Act, was duly complied with, in this case. CBI vs. Rajesh Kohli & Ors. 23 of 90 pages 24 CBI case . No.22/11
72. PW12, Sh. Surender Mohan Sehgal has deposed that he had been residing at flat no. 66, Star Apartment, Sector9, Delhi from 1994 to late 1997/early 1998 and that he had never let out the said flat, at any point of time.
73. PW13,Sh. Dhanu Mishra has deposed that he was working as security guard at Star Apartment, Sector9, Rohini, Delhi. He has further deposed that there was no company in the name of M/s Super Traders at the said address during 19961998. He has further deposed that he did not know the name of the person, who used to reside in the said flat, however, it was used as a residence. He has further deposed that from 1998, the said flat was being occupied by one Sh. Yogesh Arora.
74. PW14, Sh. Satish Kumar Duggal was posted as Branch Manager in Union Bank of India, Mangolpuri Branch, Delhi, during the year 2002.
75. PW14 has proved the statement of account no. 28090, pertaining to M/s Super Traders for the period w.e.f 16.12.97 to 15.01.01 as Ex.PW14/A. He has identified his signatures on the said statement of account, at pt. A, which CBI vs. Rajesh Kohli & Ors. 24 of 90 pages 25 CBI case . No.22/11 have been duly certified by him. He has further deposed that the said account was opened by accused Devender Kumar Garg, on 16.12.97.
76. PW14 has further deposed that he had submitted the original documents to the CBI, vide productioncum receipt memo, dated 04.08.99, copy of which is Mark PW14/1. He has further deposed that he had certified the copy of the said account opening form & the specimen signatures card, after comparing it with original, which are Ex.PW14/A1 & Ex.PW14/A2, respectively, bearing his signatures at pt. A, which he duly identified.
77. PW15, Sh. Brijesh Kumar has deposed that during the year 2002, he was working as Assistant Manager in the State Bank of Bikaner and Jaipur, Jawalaheri, Market Branch, Paschim Vihar, New Delhi.
78. PW15 has further deposed that vide seizure memo, dated 01.11.2002, he had handed over various documents, mentioned at serial no. 1 to 12, to the IO, Sh. R.P. Kaushal, the then Addl. SP, CBI. The copy of the same has been proved as Ex.PW15/A. CBI vs. Rajesh Kohli & Ors. 25 of 90 pages 26 CBI case . No.22/11
79. PW15 has further deposed that the letter, dated 20.07.02, was handed over to him by Sh. Jagan Nath Grover, who was the Manager (P), at the relevant time. He has proved the said letter as Ex.PW15/A1, bearing the signatures of said Sh. Jagan Nath Grover, at pt. A, which have been duly identified by the him, as he had worked with him.
80. PW15 has further deposed that the letter, dated 16.07.02, is in the handwriting of Sh. Jagan Nath Grover, the then Manager(P), which bears the signatures of Sh. R.S. Rangy, the then Chief Manager, at pt.A, which have been duly identified by the witness as he had worked with him and had seen him signing and writing. The said letter has been proved as Ex.PW15/A2.
81. PW15 has further deposed that the account no. 4577 was opened in the name of accused Arvind Kumar Sharma. The copy of said account opening formcumspecimen signature card, has been proved as PW15/A3, which has also been duly certified by Sh. Jagan Nath Gover, the then Manager(P), bearing his signatures at pt.A, which have been duly identified by the witness as he had seen him CBI vs. Rajesh Kohli & Ors. 26 of 90 pages 27 CBI case . No.22/11 signing and writing in official capacity.
82. PW15 has further proved the statement of account, pertaining to account no. 4577 (running into 21 pages), which was opened in the name of accused Arvind Kumar Sharma as Ex.PW15/A4. The said statement of account has also been duly certified by Sh. Jagan Nath Gover, the then Manager(P), bearing his signatures at pt.A, which have been duly identified by the witness as he had seen him signing and writing in official capacity.
83. PW15 has further deposed that vide seizure memo, dt.
27.03.03, he had handed over documents, mentioned at serial no. 1 to 7, to Sh. R.P. Kaushal. The copy of the same has been proved as Ex.PW15/A5, bearing his signatures at pt. A, which the witness duly identified.
84. PW15 has further deposed that pay order no. 790547, dt.
12.05.98, for sum of Rs.26,000/, was issued in favour of National Insurance Co. Ltd., which was handed over to CBI, vide seizure memo, dated 27.03.03, already Ex.PW15/A5. The said pay order has been proved as Ex.PW15/A6.
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85. PW15 has further deposed that the cheque no. 918220, dt.
14.05.98, for sum of Rs.3025/, was issued from account no. 4577 of accused Arvind Kumar Sharma for issuance of pay order in favour of National Insurance Company Ltd., which has been proved as Ex.PW15/A7 and the pay in slip, dated 30.09.98, has been proved as Ex.PW15/A8. He has further deposed that the aforesaid instruments were handed over by him, vide seizure memo, already Ex.PW15/A.
86. PW16, PW Sh. Bhushan Garg had been running a transport company in the name and style of M/s Shiva Roadlines, near Bibiwala Chowk, Barnala Road, Bhatinda, for last 2025 years. He has deposed that he had never heard about any transport company by the name of M/s Satguru Transport Company at Bibiwala Chowk, Bhatinda and that no such company had existed in the year 19971998.
87. PW17, Sh. B.S. Bisht has deposed that during the period w.e.f 2000 to December, 2004, he was posted in CBI, Economic Offences Wing, New Delhi. He has further CBI vs. Rajesh Kohli & Ors. 28 of 90 pages 29 CBI case . No.22/11 deposed that during the course of investigation of this case, he had assisted Sh. R.P. Kaushal, Addl. SP, IO of this case and had recorded the statements of Sh. Mohan Mehto, Surinder Kumar, Sh. P.R. Rastogi and Sushant Rastogi. He has further deposed that the statements of above said persons were correctly recorded by him.
88. PW17 has further deposed that during the course of part investigation of this case, he had examined PW Dhanu Mishra, who was security guard in Star Apartment, Sector9, Rohini, New Delhi, Sh. P.K. Tripathi, who was postman at post office, sector7, Rohini, Delhi and one Sh. Surender Mohan Sehgal from Rohini, regarding the existence or non existence of M/s Super Trader at 66, Star Apartment, sector9, Rohini, Delhi.
89. PW17 has further deposed that the aforesaid witnesses had stated that M/s Super Trader did not exist at the said address, whose statements have been recorded by him. He has further deposed that statement of Promod Kumar Tripathi, postman, was recorded on 12.09.02, which is Mark PW18/X. He has further deposed that the said witness had stated that there was no company or firm in CBI vs. Rajesh Kohli & Ors. 29 of 90 pages 30 CBI case . No.22/11 the name of M/s Super Trader at 66, Star Apartment, Sector9, Rohini, Delhi, for last seven years and that he had not delivered any daak in the name of said firm for the last seven years. He has further deposed that whatever the witness had stated, he had exactly recorded the same.
90. PW18, Sh. Promod Kumar Tripathi was the postman, who was posted in the Post Office of Sector7, Rohini, Delhi, on 12.09.02. He has deposed that he remained posted in Rohini from last 11 years.
91. PW18 has turned hostile to the version of the prosecution.
92. PW19, Sh. Naresh Aggarwal was a transporter, who had been running business in the name of M/s Bhagwati Transport Company at Bibiwala Chowk, Bhatinda, for last 15/16 years. He, however, was in the transport business for the last 25 years. He has deposed that there was no transport company in the name of M/s Satguru Transport Company, at Bibiwala Road, Bhatinda, during the year 19971998.
93. PW20, Sh. Ram Kesh has deposed that his statement was CBI vs. Rajesh Kohli & Ors. 30 of 90 pages 31 CBI case . No.22/11 recorded by CBI official on 01.05.02. That he was running a transport business in the name of M/s Laxmi Transport Company at Bibiwala Chowk, Bhatinda since last 810 years. That earlier, he was doing a job of Munshi in Transport Union, Bhatinda. He has further deposed that there was no transport company in the name of M/s Satguru Transport Company at Bibiwala Road, Bhatinda in the year 19971998.
94. PW21, Sh. Bhagwan Dass has deposed that he had been working as Way Bridge Clerk in M/s Roshan Lal Oil Mill Company at Mansa Road, Bhatinda, since 1973, which has been closed. He has further deposed that the owner of the said mill was Sadhu Ram Singla, who left Bhatinda in 1998 and his present whereabouts were not known.
95. PW21 has further deposed that he had not heard about M/s Satguru Transport Company, Bhatinda. That there was one firm namely, M/s Roshan Industries, Dubwali Road, Bhatinda, which was also closed.
96. PW22, Jora Singh was working as Mistri for repairing trucks in gali no. 8, Bibiwala Road, opposite DAV College, CBI vs. Rajesh Kohli & Ors. 31 of 90 pages 32 CBI case . No.22/11 Bhatinda. He has further deposed that he was operating from a room, built on a vacant plot of Zamindar, in gali no. 8, which was on the main road. He could not say that there could have existed a transport company in the name of M/s Satguru Transport Company at shop no. 2 in gali no. 8, opposite DAV College, Bibiwala Road, Bhatinda. He has further deposed that he did not know about any such transport company.
97. This witness was, however, declared hostile by Ld. PP for CBI since he was resiling form his previous statement, made to the IO.
98. PW23, Sh. Jyoti Kumar, is the initial Investigating Officer of this case, who was posted as Inspector, EOWI, during the period 1998February, 2002. He has deposed that investigation of this case was entrusted to him, vide FIR, which is PW23/A, bearing the signatures of the then SP, Sh. Rajender Prasad at pt.A, which have been duly identified by him.
99. PW23 has further deposed that during the course of investigation, he had seized various relevant documents CBI vs. Rajesh Kohli & Ors. 32 of 90 pages 33 CBI case . No.22/11 and recorded statements of some witnesses. He has further deposed that after his transfer, the present case was transferred to Sh. R.P. Kaushal, the then Additional Superintendent of Police.
100. Further, PW23 has reiterated, seizure memo, dated 08.02.01, which is Ex.PW8/A, on which, he has identified his signatures at pt. B. Vide the said seizure memo, he had seized six claim files.
101. PW24, Inspector S.L. Garg has deposed that in the year 2002, he was posted as Inspector in EOWII, CBI. He has further deposed that he had assisted the part IO in the investigation of this case.
102. PW24 has further deposed that during the course of investigation, on the instructions of the IO, he had recorded the statements of some of the witnesses including, Jora Singh, regarding Satguru Transport. He, however, did not remember the names of other witnesses.
103. After going through the statement of PW Jora Singh, which is Ex.PW22/XI, the witness has deposed that as per the CBI vs. Rajesh Kohli & Ors. 33 of 90 pages 34 CBI case . No.22/11 said statement, Satguru Transport Company was not in existence and PW Jora Singh was working as 'Mistri' for the last 20 years in the same street. He has further deposed that whatever the witnesses had stated regarding existence of Satguru Transport Company, was his conclusion.
104. PW25, Sh. R.P. Kaushal is the Investigating Officer of this case. He has deposed that during the period from 2002 to 2006, he was posted as Additional, Superintendent of Police, CBI, EOWI, New Delhi. He has further deposed that the present case was handed over to him by PW23, Sh. Jyoti Kumar, the then Deputy Superintendent of Police, CBI, for further investigation.
105. PW25 has further deposed that during the course of investigation, he was also assisted by other IOs namely, B.S. Bisht, B.M. Pandit, S.L. Garg, who were all Inspectors along with Smt. Rekha Sangwan, the then SI and others.
106. PW25 has further deposed that during the course of investigation, he had recorded the statements of witnesses and had also collected/seized documents from the concerned persons/authorities.
CBI vs. Rajesh Kohli & Ors. 34 of 90 pages 35 CBI case . No.22/11
107. PW25 has further deposed that he had collected specimen and admitted handwritings of the accused persons, which were sent to CFSL for comparison and for obtaining expert's opinion. That the said expert opinion, which is Ex.PW25/B, was received in the office of CBI, which had been filed alongwith the documents in the court He has further deposed that while sending the above mentioned documents to CFSL, he had sent questioned documents, marked as Q1 to Q139, specimen writings / signatures, marked as S1 to S92 and admitted writings/signatures, marked as A1 to A75 through SP, CBI, EOW, vide letter, dated 09.12.2002 in a sealed cover, under the signatures of the then S. P. Shri Alok Mittal of CBI, EOW, Delhi. The copy of the said letter is Ex. PW25/A. He has identified the signatures of Sh. Alok Mittal at pt. B, on the said letter, as he had seen him writing and signing during the course of official dealing.
108. PW25 has further deposed that vide letter, dated 27.06.2002 of Shri S. Roy, he had received the enclosures as mentioned in the letter, dated 27.06.2002, copy of same has been proved as Ex. PW 25/C. CBI vs. Rajesh Kohli & Ors. 35 of 90 pages 36 CBI case . No.22/11
109. PW25 has further deposed that vide seizure memo, dated 17.9.2002, he had seized documents from Shri Deepak Chaudhary, the then AAO, NIC, DO10, New Delhi. The copy of said seizure memo has been proved as Ex. PW25/D, which bears his signatures at point A and that of Shri Deepak Chaudhary at point B, which have been duly identified by the witness.
110. PW25 has further deposed that he had also received the details regarding six policies, vide letter, dated 19.9.2002, copy of same has been proved as Ex. PW25/E.
111. PW25 has further deposed that he had also collected documents, vide letter, dated 01.11.2002 from Shri Brijesh Kumar Sharma, the then Assistant Manager, State Bank of Bikaner & Jaipur, Paschim Vihar, New Delhi, which is already, Ex.PW12/A . He has identified his signatures at pt. A and that of Sh. Brijesh Kumar, at pt. B, on the said letter.
112. PW25 has further deposed that he had also collected documents, vide letter dated 03.12.2002 from Sh. S. Roy, the then Assistant Manager, copy of which is Ex.PW25/F. CBI vs. Rajesh Kohli & Ors. 36 of 90 pages 37 CBI case . No.22/11
113. PW25 has further deposed that vide seizure memo, already Ex.PW15/A5, he had seized documents from Sh. Brijesh Kumar Sharma, the then Assistant Manager, on 27.03.2003. He has also identified his signatures as well as that of Sh. Brijesh Kumar Sharma at pts. B and A, respectively, on the said seizure memo.
114. PW25 has further deposed that vide the aforesaid seizure memo, he had seized several documents i.e bankers cheque no. 790547 for Rs.26,000/, which is already Ex.PW15/A6, cheque no. 790563 for Rs.3,000/, which is Ex.PW25/G, cheque no. 918220 of account no. 4577 & pay in slip, dated 14.05.98, which are Ex.PW15/A8, application for banker's cheque, dated 12.05.98, which is Ex.PW25/H and cheque no. 918219 of Rs.26,030/, which is Ex.PW25/I.
115. PW25 has further deposed that he had also seized PUB Statement, dated 01.01.97 to 31.12.98, reflecting the relevant entry, dated 18.12.97, in respect of clearance of cheque no. 896995 for Rs.2,93,157/, which is Ex.PW25/J. He has further deposed that he had also seized PUB CBI vs. Rajesh Kohli & Ors. 37 of 90 pages 38 CBI case . No.22/11 statement w.e.f 01.01.97 to 31.12.98 of account no. 1523 of NIC from Indian Overseas Bank, Parliament Street, New Delhi, copy of which is Ex.PW25/K.
116. PW25 has further deposed that he had also collected details of six policies, copy of which are collectively, Ex.PW25/L. He has further deposed that vide letter, dated 25.07.01, he had collected two documents through SP, which is Ex.PW25/M. He has further deposed that information, in respect of two more documents, which were seized by Navneet Krishna, the then Inspector, CBI, was collected by him through, seizure memo, Ex.PW25/N.
117. PW25 has further deposed that vide seizure memo, already Ex.PW25/D, three documents were seized, which are Ex.PW25/O, Ex.PW25/P and Ex.PW25/Q. He has further deposed that CFSL expert's opinion, which is already Ex.PW25/B was received through a forwarding letter, dated 03.04.03, which is Ex.PW25/R.
118. The expert's opinion, in this case, goes unchallenged. The same, therefore, can be read in evidence as against the accused persons.
CBI vs. Rajesh Kohli & Ors. 38 of 90 pages 39 CBI case . No.22/11
119. In the case law reported as Murari Lal Vs. State of M. P., AIR 1980 SC 531, Hon'ble Supreme Court has held that :
"In cases where the reasons for the opinion are convincing and there is no reliable evidence through a doubt, the uncorroborated testimony of a handwriting expert may be accepted."
120. PW25 has further deposed that during the course of investigation, specimen signatures of accused Devender Kumar Garg, marked as S64 to S77, were obtained, which are Ex.PW25/S (running into 13 pages), in the presence of an independent witness, Sh. P.K. Aggarwal, the then Assistant Officer, NIC, New Delhi.
121. PW25 has further deposed that he had also collected details regarding commission paid to B.N.Tiwari, in respect of six policies, copy of which is Ex.PW11/E.
122. PW25 has further deposed that after completing the investigation, he had filed the charge sheet and supplementary charge sheet, in this case.
123. Now, I come to the version put forward by the defence witnesses.
CBI vs. Rajesh Kohli & Ors. 39 of 90 pages 40 CBI case . No.22/11
124. DW1 is the accused Adarsh Kumar Aggarwal. He has deposed that M/s Commercial Syndicate filed a writ petition in the High Court and for the same reason, he has falsely been implicated, in this case. He, however, could not substantiate as to what nexus that writ petition has got to do with the present case.
125. In cross examination, this witness has admitted the document, Ex.DW1/A, original of which is available in CC no. 24/11, pending before this court. He has also identified his signatures at point B, on the same. This letter, itself, on bare perusal shows his complicity, in the present case.
126. Admittedly, DW1 has claimed commission from NIC for recovery from the transporter. Evidence on record indicates that the transporter, in this case, was fake and no recovery could have, therefore, been effected.
127. Further, the recovery amount, deposited with NIC, was through banker's cheque which, it has been proved on record, was prepared from the account of accused Arvind CBI vs. Rajesh Kohli & Ors. 40 of 90 pages 41 CBI case . No.22/11 Kumar Sharma.
128. All this shows that M/s Commercial Syndicate through accused Adarsh Agarwal was hand in glove with the other accused persons and was acting in pursuance to the alleged criminal conspiracy.
129. In any case, deposition of this witness does not prove on record anything, which discredits the case of the prosecution. On the other hand, his deposition, lends support to the case of the prosecution by corroborating the prosecution evidence, already appearing on record.
130. DW2, Sh. B.K. Sachdeva has proved on record the Claim Procedural Manual of NIC as Ex.DW2/A. He has agreed that the claim in question, was processed by accused Rajesh Kumar Kohli, who had the experience and wisdom of more than 20 years. He has further agreed that he has no personal knowledge of this case.
131. DW2 has also admitted that the insured has to act and take precautions, as if he was uninsured. That in case, FIR had been lodged, then it was the duty of the claim presenting CBI vs. Rajesh Kohli & Ors. 41 of 90 pages 42 CBI case . No.22/11 authority to see the FIR.
132. DW2 has further agreed that recovery agent is entitled to deposit only in case of actual recovery and that in no case, the recovery agent can deposit the money from his own account, without actual recovery from the concerned party.
133. This witness also, therefore, only confirms the case of the prosecution, rather than to help the defence, in any manner, whatsoever.
134. DW3 is accused Rajesh Kumar Kohli. This witness has also confirmed his signatures and writings on the various documents, placed and proved on record by the prosecution. Except vague assertions, he has not brought out anything, which either contradicts the prosecution case or establish that he was innocent. On the contrary circumstances of this case indicate that he had passed bogus and false claim with an accelerated pace, ignoring altogether the mandatory provisions of the Procedural Manual.
CBI vs. Rajesh Kohli & Ors. 42 of 90 pages 43 CBI case . No.22/11
135. DW3 Rajesh Kumar Kohli was not a lay man and was certainly trained as a specialist to ensure that only genuine claims are passed and any falsehood in the claim was required to be certainly detected/probed by him. His conduct from the various documents and circumstances, placed and proved on record by the prosecution, prove it otherwise. Instead of having a hawk's eye, he had been perpetrating the sanction of bogus claims, one after the other.
136. The deposition of the defence witnesses, therefore, clearly do not bring anything on record to show that either the prosecution story is false or accused persons are innocent. On the contrary it corroborates and justify the prosecution version only.
137. The prosecution, therefore, has alleged in this case that :
(a) Insured Co. (consignee) was not found at the given address.
(b) Neither the consignor M/s Roshan Industries nor transporter M/s Satguru Transport Co. existed at the given address.
(c) D. K. Garg authorised signatory of the insured Co. & CBI vs. Rajesh Kohli & Ors. 43 of 90 pages 44 CBI case . No.22/11 proceeds of claim were credited in his account.
(d) M/s Commercial Syndicate prepared fake recovery bill and took charges towards recovery charges from NIC knowing that transporter did not exit and they did not effect any recovery from the transporter.
(e) Recovery amount was paid by cheque issued from the account of accused Arvind Kumar Sharma.
138. It is well settled that burden of proof lay upon the claimant to show that M/s Super Traders, the consignor and the transporter existed under section 106 of the Evidence Act, as he had the specific knowledge and documents with him. But he failed to discharge this burden.
139. In the case law reported as Krishna Kumar Vs. UOI, AIR 1959 SC 1390, and Indore Municipal Corporation Vs. Caltex (India) Ltd, AIR 1991 SC 454, the Hon'ble Supreme Court has held that :
"If the facts are within the knowledge of the accused, it is enough to establish facts which give rise to a suspicion and then by reason of Sec. 106 of the Evidence Act to throw the onus on him to prove his innocence."
CBI vs. Rajesh Kohli & Ors. 44 of 90 pages 45 CBI case . No.22/11
140. In pursuance to the criminal conspiracy, false insurance claims have been obtained by the accused persons from NIC, DOX. It is well settled that conspiracy can be proved by circumstantial evidence as well.
141. In the case law reported as State of M. P. V Sheetla Sahai, 2009, Cr. LJ 4436 SC, Hon'ble Supreme Court has held that :
"Often criminal conspiracy is hatched in secrecy and for proving the offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence."
142. In the case law reported as Chaman Lal Vs. State of Punjab, AIR 2009 SC 2972, Hon'ble Supreme Court has held that:
"Essence of conspiracy is unalwful combination and the complicity of the accused has to be decided after considering all the circumstances proved, before, during and after occurence. Agreement between the conspirators may also be proved by necessary implication."
143. In the case law reported as R. K. Dalmia V The Delhi Administration, AIR 1962 SC 1821, Hon'ble Supreme Court CBI vs. Rajesh Kohli & Ors. 45 of 90 pages 46 CBI case . No.22/11 has held that :
"It is not necessary that each member of a conspiracy must know all the details of the conspiracy."
144. In the case law reported as Tribhuvan Nath Vs. State of Maharashtra, AIR 1973 SC P 450, Hon'ble Supreme Court has held that :
"Evidence of one accused can be used against the other accused to prove the existence of conspiracy under section 10 of the Evidence Act."
145. In the case law reported as AIR 1974 SC P 898, Hon'ble Supreme Court has held that :
"Even admission of one accused under section 10 of the Evidence Act, can be used against other accused to prove criminal conspiracy."
146. In the case law reported as Kehar Singh Vs. State AIR 1988 SC 1883, Hon'ble Supreme Court has held that :
"Action or statement made by one of the accused could be used as evidence against the other by Virtue of Section 10 of the Evidence Act."
147. It was held in the case law reported as AIR 2010 SC 3718 'Muriappan Vs. State of Tamil Nadu' that :
"Facts established should be consistent only with the hypothesis of guilt of the accused. It does not mean CBI vs. Rajesh Kohli & Ors. 46 of 90 pages 47 CBI case . No.22/11 that each and every hypothesis suggested by accused must be excluded by proved facts."
148. It was further held that :
"False and inconsistent defences taken by the accused can be taken as additional circumstance against him strengthening the chain of circumstances."
149. In the case law reported as Hashim (K) 2005 Cri LJ 143 (SC), the Hon'ble Supreme Court has held that "for an offence punishable under section 120B, the prosecution need not necessarily prove that the perpetrators expressly agree do to or cause to be done illegal act; the agreement may be proved by necessary implication".
150. In the case law reported as (2001) 4 Crimes 247 (SC), the Hon'ble Supreme Court has held that "to prove conspiracy, it is not necessary that there should be direct communication between each conspirer and every other but the criminal design alleged must be common to all".
151. It has been held in the case law reported as Firozuddin Basheeruddin (2001) 7 SCC 596 that "the rationale of conspiracy is that the required objective manifestation of disposition to criminality CBI vs. Rajesh Kohli & Ors. 47 of 90 pages 48 CBI case . No.22/11 is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interest of security, a person may carry out his part of a conspiracy without even being informed of the identity of his coconspirators. An agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of what lies in their minds".
152. It was further observed in the aforesaid judgment that "Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions, any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Thus conspirators are liable on agency theory for statements of co conspirators, just as they are for the overt acts and crimes committed by their confrers".
153. Further, the circumstances indicate that either no goods were transported or the transportation of the goods, as alleged, was fake and manipulated.
154. The Manual, which has been placed on record by the defence and is Ex.DW2/A, admittedly contains the CBI vs. Rajesh Kohli & Ors. 48 of 90 pages 49 CBI case . No.22/11 procedure in case of Marine Cargo Claims to be followed while processing the claims. This manual provides clearly that wherever, discretion is exercised by the Settling Authority to dispense with the essential requirement the discretion should be judiciously used and reasons thereof in detail should be recorded. In the instant case, admittedly, no reasons were recorded by the settlement authority i.e. accused, Rajesh Kumar Kohli.
155. In case general procedure is to be deviated while processing and passing the claims, the reasons justifying the departure are required to be clearly set out, which is not the case here.
156. The procedural manual duly proved as Ex.DW2/A by the defence and not disputed by the prosecution provides the following relevant provisions:
"............the claim settling authority should use his discretion by recording his reasons, in detail.
1. Intimation of Claim (1.1) Intimation of claim is normally received from claimant by letter, telegram or even by phone, followed by a letter. Each intimation should be recorded in writing, confirming the message and date and time of its CBI vs. Rajesh Kohli & Ors. 49 of 90 pages 50 CBI case . No.22/11 receipt.
(1.2) On receipt of a claim intimation, the dealing office should; (a) ascertain whether insurance policy is in existence and
(b) allot a claim number
(c) prepare a claim docket filling in all the details
(d) make an entry in claim intimation register in serial order.
2. OPEN DELIVERY FROM CARRIERS/THIRD PARTY (2.1) In order to establish that the goods have been lost or damaged whilst in the custody of carriers, claimants have an obligation to apply for open assessment delivery from the carriers. Failure to do so would prejudice the insured's right of recovery under the policy.
(2.2) Where the written application for open/survey delivery is refused by the carriers and a survey is disallowed by them, the claimant shall be asked to take delivery under a written protest after survey by a surveyor deputed by the dealing office. (2.3) In case of nondelivery/short delivery, the claimant shall be asked to obtain and send to the dealing office either a nondelivery/short delivery certificate from the Port Authorities or the original Railway Receipt (RR), Lorry Way Bill (LWB) or Air Consignment Note duly endorsed by the carriers, confirming nondelivery/short delivery or a separate nondelivery/short delivery CBI vs. Rajesh Kohli & Ors. 50 of 90 pages 51 CBI case . No.22/11 certificate, as the case may be.
3. APPOINTMENT OF SURVEYOR 3.1 It is necessary to decide whether a survey of goods reported lost or damaged is to be arranged. 3.2 Claim exceeding Rs.20,000/ should be surveyed by a duly licensed surveyor.
3.6 In marine insurance unlike other classes of insurance, survey fee is initially paid by the claimant. The survey fee will be reimbursed to the claimant along with the claim amount, if the claim is admissible under the policy. This should be brought to the notice of the claimant whilst advising him about appointment of surveyor.
3.7 The dealing office shall also arrange for surveys 'without prejudice' on losses reported under policies issued by other policy issuing offices which are not under its jurisdiction. Thereafter, the dealing office shall process the entire claim upto final settlement keeping the policy issuing office informed of all developments. 3.10 Normally, the survey report should be finalized within three weeks. The surveyor shall be instructed to keep the dealing office informed of the progress of his work in case of delay. He shall alert dealing office immediately if it is known that a third party is responsible for the loss so that arrangements for a joint survey with the third party's representative can be made. CBI vs. Rajesh Kohli & Ors. 51 of 90 pages 52 CBI case . No.22/11 3.11 If the loss is a major one, the surveyor shall be asked to submit one or more interim reports.
3.12 The dealing office should keep in touch with the surveyors throughout.
4. DOCUMENTS REQUIRED FOR SETTLEMENT OF ALL CLAIMS.
4.1 Documents required for settlement of all claims are as under:
i. Original insurance policy/declaration under the open policy, duly endorsed by the insured/claimant. ii. Original or a signed copy of sales invoice along with packing list.
iii. Copy of Bill of Lading (in case of sea voyage).
iv. Copy of Bill of Entry.
v. In case of General Average, Counter Guarantee or
original Cash Deposit Receipt with Letter of Transfer. vi. Letter of Subrogation duly stamped (only where recovery from carriers is possible). vii. Special Power of Attorney( wherever applicable). viii. Lost Over Board Certificate where loss has taken place during loading.
ix. In case of shortlanding/nondelivery of complete assignment:
Original contract of affreightment duly endorsed in our favour viz. Railway Receipt, Transport Receipt, full set of Bill of Lading, Air Consignment Note and Postal Receipt etc as CBI vs. Rajesh Kohli & Ors. 52 of 90 pages 53 CBI case . No.22/11 applicable. The original contract of affreightment should be endorsed by the carrier confirming shortlanding/nondelivery of the entire consignment by them or with a separate shortlanding/non delivery certificate. x. In case of partial nondelivery/shortlanding:
Nondelivery and/or landed but missing certificate from the carriers or Port Trust. xi. In case of partial loss or damage:
a. Open assessment report by the carrier and/or b. Survey Report of independent survey.
c. Claim form (as per Annexure'A')
d. Claim bill (where necessary).
xii. Copies of correspondence exchanged with the
carriers along with registered AD cards (wherever recovery from the carriers is possible). xiii. Banker's Certificate confirming non receipt of export proceeds in India in an approved manner (in case of claims under export policies settled in India).
6.CLAIM SETTLEMENT ON DESPATCHES BY INLAND TRANSIT (RAILWAYS OR ROAD CARRIERS OR OTHER MODES OF TRANSIT FOR DESPATCHES WITHIN INDIA).
6.1 Short and Non Delivery 6.1.1 When a claim for short delivery or non delivery of a consignment is reported, consignees should be advised to obtain signed certificate of the delivery authorities on the reverse of the Receipts certifying that the packages are not available for delivery or obtain a separate shortlanding or nondelivery certificate. The CBI vs. Rajesh Kohli & Ors. 53 of 90 pages 54 CBI case . No.22/11 consignees should be requested to lodge a valued claim on the carriers by Registered Post Acknowledgment Due within a period as set out in 6.2.2 below. Tracing agents should also be engaged, whenever necessary.
9. GENERAL 9.9 All documents must be called for in one go and not in piecemeal.
11. DISCRETION TO BE USED BY DIVISIONAL OFFICE 11.1 The dealing office has to use its discretion judiciously after calling for necessary explanation from the claimant. Reasons for using discretions shall be duly recorded by the person concerned.
11.2 Where the right of recovery from the carriers/third party is prejudiced the claim amount payable shall be restricted to not exceeding 75 % of the assessed loss other than in respect of excepted Articles as per Indian Railway Act or Carriers Act, where the amount payable shall be the assessed loss less the recovery amount prejudiced."
157. The said manual further provides that intimation of claim is normally received from insured, consignor, consignee and or their agents by letter, telegram or even on phone followed by a letter. Each verbal or telephonic information is required to be recorded in writing confirming the CBI vs. Rajesh Kohli & Ors. 54 of 90 pages 55 CBI case . No.22/11 message, date and time of its receipt. This does not find compliance in the instant case.
158. Para 12 of the Manual further provides that all the recovery claims should be properly followed up and if no settlement is received from the Carriers within a reasonable period or if Carrier repudiate the liability the dealing official legal advisor is required to be requested to give his opinion on the question of filing of a suit based on chances of success and cost involved compared to the claim amount. The decision regarding the legal action is to be taken by the official authorised to settle the claim.
159. That as per the annexure to the procedural manual, marine cargo claim has also the conditions printed on the insurance policies, issued by the NIC, which was necessary for the claimants to obtain and submit the original damage/shortage /nondelivery certificate from the carrier if the goods were damaged in transit, or if short delivered or nondelivered at all.
160. Admittedly, accused Rajesh Kumar Kohli appointed D. K. Gargaccused as Surveyor and upholding his bogus report CBI vs. Rajesh Kohli & Ors. 55 of 90 pages 56 CBI case . No.22/11 sanctioned the claim of Rs.2,93,157 in favour of M/s Super Traders, accused D.K. Garg.
161. Accused Devender Kumar Garg was the insured party in Super Traders. He was Surveyor also. This was contrary to the settled norms.
162. Accused Adarsh Aggarwal was recovery agent in this case.
He deposited 2 bankers cheque amounting to Rs.26,000 and Rs.3,000, respectively, which were made from A/c No. 4577 of Arvind Kumar Sharma. Accused Arvind Kumar Sharma was neither a transporter nor a recovery agent. The recovery shown, in this case, was, therefore, fake and bogus.
163. It is clear from the material placed and proved on record by the prosecution that following striking facts and circumstances emerge:
(i) CST No. given in Satguru Transport GR no. 1049, dated 18.09.97 is different from what is mentioned in invoice of Roshan Industries as last digit is mentioned as Zero instead of eight.
CBI vs. Rajesh Kohli & Ors. 56 of 90 pages 57 CBI case . No.22/11
(ii) The address of consignee is not given in full (only M/s Super Traders, Dhl is mentioned).
(iii) The Survey report nowhere indicates as to where and how the tanker/the oil that remained in it was weighed.
(iv) The survey report indicates that it was done on two days i.e. 19.09.97 and 20.09.97. It, however, nowhere indicates what was done on 19.09.97 and what was done on 20.09.97.
(v) The survey report does not mention the name of the representative of the insured/consignee/carrier. Receipt copy of Ex.PW23/DZ1 is fabricated on the face of it as the figures mentioned therein do not appeal to logic and do not match to the real figure that ought to have been w.r.t to the total weight mentioned therein.
(vi) The Annexure B which is a statement of Sh. Rajinder Singh allegedly recorded by the surveyor on 19.09.97 contrary to the police report shows that the he along with the cleaner got minor injuries. In the police CBI vs. Rajesh Kohli & Ors. 57 of 90 pages 58 CBI case . No.22/11 report, he does not report any injury to any one.
(vii) There is nothing on record in the Survey Report or otherwise that the police ever went to the spot. It is quite unbelievable that the police blindly believed the version given in the report by the driver.
(viii) The claim note is Ex.PW3/D3, which nowhere questions the abnormality obtaining on record.
(ix) The time of accident is nowhere indicated in the documents.
(x) In the claim note Ex.PW3/D3 approved by accused Rajesh Kumar Kohlino documents are mentioned, indicating that while passing the claim, which documents were seen/considered by the accused Rajesh Kumar Kohli and which documents were dispensed with, much less assigning any reason.
(xi) The original documents demanded by NIC, vide their letter dated 10.11.97 do not appear on record. There is nothing to suggest that these documents were CBI vs. Rajesh Kohli & Ors. 58 of 90 pages 59 CBI case . No.22/11 ever supplied by the claimant to NIC.
(xii) There is nothing on record to show that claimant was allowed to skip the document required.
164. Regarding the offence of cheating, the Hon'ble Apex Court has observed that "when a person gets an order by playing fraud upon the competent authority, such order cannot be sustained in the eyes of law as fraud unravels everything. Fraud and justice never dwell together. Fraud is an anathema to all equitable principles and any affair tained with fraud cannot be perpetuated or saved by the application of any equitable doctrine". {Inderjeet Singh Grewal vs. State of Punjab, 2011(4) RCR (criminal) 1(SC)}.
165. In the case law reported as Devender Kumar Singla vs. Baldev Krishan Singla, 2004 Cri LJ 1774 (SC), the Hon'ble Supreme Court has observed the following points as essential ingredients to attract section 420 IPC:
1. Cheating;
2. Dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and CBI vs. Rajesh Kohli & Ors. 59 of 90 pages 60 CBI case . No.22/11
3. Mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under section
420."
166. In the case law reported as Kuldip Sharma, 2000, Cri LJ 1272(Del), it has been held by the Hon'ble High Court that 'Where an accused obtained payments from the Government of India by sending bills containing number of bogus railway receipts representing that the contracted goods had been booked and despatched under the bogus railway receipts mentioned in the bills and the false representation made by the appellants induced the Government to part with the money to satisfy those claims put forward by the appellants, the conviction of the appellants for the offence under section 420 was held sustainable'.
167. In the case law reported as Ram Prakash Singh, AIR 1998 SC 296, the Hon'ble Supreme Court has held that 'Where the accused, a Development Officer in LIC, introduced false and fake insurance proposals to LIC with a view to earn promotion on the basis of inflated business, he was convicted under sections 420/511, 420/120B, 468 & 477 A'.
CBI vs. Rajesh Kohli & Ors. 60 of 90 pages 61 CBI case . No.22/11
168. In the case law reported as AIR 2004 SC 3229, the Hon'ble Supreme Court has held that "For an offence under section 471, one of the necessary ingredients is fraudulent and dishonest use of the document as genuine. The act need not be both dishonest and fraudulent. The use of document as contemplated by section 471 must be voluntary one. For sustaining conviction under section 471, it is necessary for the prosecution to prove that accused knew or had reason to believe the document in question to be forged and this has to be adjudicated on the basis of materials and the finding recorded in that regard is factual".
169. It has been asserted by the defence during the course of arugments that there are defects in the investigation. It is true that the present case has not been very effectively investigated by the Investigating Officers. Had it been investigated much more could have come on the surface and much larger rackets could have been unearthed, regarding the fraudulent claims that were being operating in NIC. However, so long as case of the prosecution on the basis of circumstances and documents, established and available on record are available, the defect, if any, in the investigation of this case, confers no benefit to the accused persons.
CBI vs. Rajesh Kohli & Ors. 61 of 90 pages 62 CBI case . No.22/11
170. In the case law reported as 2007 Cri LJ 758(SC), it has been held by the Hon'ble Supreme Court that 'Defective investigation may discredit the prosecution, but prosecution evidence may not necessarily be discarded on the ground. If the evidence is otherwise reliable and trustworthy, the court may convict the accused. Reminiscence of investigating officer will not ipso facto weaken the case of the prosecution'.
171. In the case law reported as State vs. Santosh Kumar Singh, 2006(4) Crimes 782 (Del), the Hon'ble High Court has held that 'Courts should not be influenced by suspicious roles played by the investigation officer during investigation and criminal justice should not be made a casualty for wrongs committed by investigation officers.'
172. In the case law reported as Dhanraj Singh 2004 Cri LJ 1807 (SC), it has been held by the Hon'ble Supreme Court that 'In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would CBI vs. Rajesh Kohli & Ors. 62 of 90 pages 63 CBI case . No.22/11 tantamount to plying into the hands of the investigating officer if the investigation is designedly defectively. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. Then the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice'.
173. From the above discussion, it is abundantly clear that all the accused persons entered into criminal conspiracy to cheat the NIC by passing of the fraudulent and bogus claim, based upon false, forged and fabricated documents, which were used by them, in this case.
174. In view of the overwhelming evidence that has appeared on record, it cannot be said that any of the accused person is innocent. The guilt of the accused person as alleged by the prosecution is established on record beyond any pale of doubt.
175. It is well settled that the witnesses may tell lie but the circumstances and the documents, placed and proved on record will not. The documents and circumstances proved CBI vs. Rajesh Kohli & Ors. 63 of 90 pages 64 CBI case . No.22/11 and appearing on record, in this case clearly show the involvement of all the accused persons actively, in committing the allged overt acts to achieve their goals of getting false and frivolous insurance claims, passed in this case.
176. Under the circumstances, I have no hasitation in holding all the accused persons guilty of the offence, punishable under section 120B read with 420, 467, 468, 471 IPC and section 13(2) read with 13(i)(d) of the Prevention of Corruption Act, 1988.
177. To attract provisions of section 13(i)(d) of the Prevention of Corruption Act, 1988, public servant should obtain for himself or any other person any valuable thing or pecuniary advantage (i) by corrupt or illegal means or (ii) by abusing his position as a public servant or (iii) without any public interest.{R. Sai Bharathi vs. J. Jayalalitha (2004) 2 SCC 9}.
178. Accused Rajesh Kumar Kohli passed the false and bogus claim, in this case, while ignoring the established and required norms dishonestly and in pursuance to the CBI vs. Rajesh Kohli & Ors. 64 of 90 pages 65 CBI case . No.22/11 alleged conspiracy in order to make pecuniary gain to the claimant without any public interest. He is, therefore, held guilty of the offence punishable under section 13(2) read with section 13(i)(d) of the Prevention of Corruption Act, 1988.
179. Accused Devender Kumar Garg preferred false and frivolous claim, based upon false, fabricated and forged documents and used them as such to cheat the NIC Ltd. He was beneficiary, in as much as, he pocketed the claim amount, in this case. He is, therefore, held guilty of the offence punishable under section 420 & 471 read with section 468 IPC.
180. Accused Arvind Kumar Sharma joined other accused persons in the conspiracy and recovery cheque was from his account, and was deposited as recovery, without effecting any recovery from the carrier. A peltry sum, which is approximately equivalent to 10% of the claim award, in this case, was deposited, without making any recovery from the transporter. He, thus, cheated the NIC with forged and fabricated documents. He is guilty of the offence punishable under section 420 read with section CBI vs. Rajesh Kohli & Ors. 65 of 90 pages 66 CBI case . No.22/11 468 IPC.
181. Accused Adarsh Agarwal, admittedly, claimed recovery charges, knowing full well that the recovery shown, in this case, was fake. Everything was used as a coverup to justify as if everything has been complied with. He along with the other accused persons joined hands and committed the alleged offence under section 468 IPC in an organized and systematical manner to defraud and cheat NIC. He is, accordingly, held guilty of the offence punishable under section 468 read with section 420 IPC.
182. All the accused persons are, accordingly, convicted.
183. Let the convicts be heard on the point of sentence, as prayed by them, on 30.11.2012.
Announced in the open court ( N. K. Kaushik ) on 20.11.2012 Special Judge, PC Act CBI Dwarka Courts, New Delhi.
CBI vs. Rajesh Kohli & Ors. 66 of 90 pages 67 CBI case . No.22/11 IN THE COURT OF SHRI N. K. KAUSHIK SPECIAL JUDGE (P C ACT) CBI, DWARKA COURTS, NEW DELHI CBI Case No. : 22/11 RC No. : 1(E)/2001/EOWI/New Delhi In the matter of : CBI Versus
1. Rajesh Kumar Kohli, The then Divisional Manager, National Insurance Company Ltd., DOX, New Delhi.
R/o 187, Pragati Apartment, Club Road, Paschim Vihar, New Delhi.
2. Devender Kumar Garg, S/o Late Sh. R.S. Chananmal, R/o : 491, Model Town (Urban Estate), Bhatinda, Punjab.
3. Arvind Kumar Sharma, S/o Late Sh. Shambhu Nath Sharma, R/o GH2/122B, Ankur Apartments, Paschim Vihar, New Delhi63.
4. Adarsh Agarwal, Manager, M/s Commercial Syndicate, 3846, Churiwalan, Delhi6.
...........Convicts CBI vs. Rajesh Kohli & Ors. 67 of 90 pages 68 CBI case . No.22/11 Date of Institution : 27.01.2003 Date on which judgment pronounced : 20.11.2012 Date on which order on sentence announced :
7.12.2012 O R D E R O N S E N T E N C E
1. By this order, I shall dispose off the contentions, raised on behalf of the parties, on the point of sentence.
2. In the present case, all the convicts have been convicted for the offence punishable under sections 120B read with sections 420, 467, 468 and 471 IPC and section 13 (2) read with section 13 (1)
(d) of the Prevention of Corruption Act, 1988.
Convict Rajesh Kumar Kohli has been convicted, in addition, for the offence punishable under section 13(2) read with section 13(1) (d) of the Prevention of Corruption Act, 1988. Convict Devender Kumar Garg has been convicted, in CBI vs. Rajesh Kohli & Ors. 68 of 90 pages 69 CBI case . No.22/11 addition, for the offences punishable under sections 420 and 471 IPC read with section 468 IPC. Convict Arvind Kumar Sharma has been convicted, in addition, for the offence punishable under sections 420 read with section 468 IPC. Convict Adarsh Agarwal has been convicted, in addition, for the offence punishable under section 468 IPC read with section 420 IPC.
3. It has been strongly contended on behalf of the State by the Ld. Sr. PP for the CBI that this is a corruption case, in which, the convicts have been convicted, as they were operating as an organised racket and have caused illegal huge pecuniary loss to the National Insurance Company Ltd., Govt. of India Undertaking. That they have cheated the said company to the tune of Rs. 2,93,157/. They have, therefore, caused loss to the public exchequer of the said amount. It has further been stated that the amount, to the extent CBI vs. Rajesh Kohli & Ors. 69 of 90 pages 70 CBI case . No.22/11 to which the Government has been cheated, was not a small amount as the case pertains to the period much prior to the year 2000, when it was quite a sizable and fat amount.
4. The State has further contended that the maximum prescribed substantive punishment with fine be handed over to all the convicts, so that enough and clear message goes to one and all and especially to the potential offenders, who are in the waiting to commit such like frauds so that the punishment act as a deterrence and the intent of the legislature is fulfilled.
5. Convict Rajesh Kumar Kohli, has prayed that a lenient view be taken on the ground that the present case dates back to the year 2000. That he has faced a trial for all these years. That he had been regularly attending the Court. That he has an old mother and wife to support. That he had, CBI vs. Rajesh Kohli & Ors. 70 of 90 pages 71 CBI case . No.22/11 of late, taken to practice law for quite sometime and that no useful purpose will be served by keeping him away from the society, in incarceration. He has sought probation as well.
6. On behalf of the convict Devender Kumar Garg, it has been stated that he is 62 years of age and is suffering from some diseases also. That his son is likely to be married in December this year. He has prayed for a lenient view.
7. Convict Arvind Kumar Sharma has prayed for a lenient view on the grounds that he is the sole earning member in his family and there is no one else to look after them. That the convict has faced the trial for a couple of years. That he has already stopped the business which had landed him in this case.
8. Convict Adarsh Aggarwal has prayed for lenient CBI vs. Rajesh Kohli & Ors. 71 of 90 pages 72 CBI case . No.22/11 view and contended that he is the only earning member in his family. That he has 83 years old father and two children, who are school going.
9. All the convicts have, thus, prayed for taking a lenient view. They all have, further, prayed for release on probation.
10. The contentions, raised by the the convicts, have met stiff and very strong opposition on behalf of the State. It has been urged that convict Rajesh Kumar Kohli, the then public servant, is a convict before this Court, in as many as six different cases as he had illegally and dishonestly awarded false and fraudulent insurance claims exceeding Rs.15 lakhs that too in the year 19981999, when it was quite a big sum. It has, further, been stated on behalf of the State that being a public servant at the relevant time, convict Rajesh Kumar Kohli acted corruptly with full vigour, in false claims, CBI vs. Rajesh Kohli & Ors. 72 of 90 pages 73 CBI case . No.22/11 one after the other. It has, therefore, been urged that this convict is a habitual offender and deserves maximum punishment.
11. Regarding the convict Devender Kumar Garg, it is stated that he was the beneficiary of the fraudulent claim. That he pocketed the claim money, in this case, to which he was not legally entitled to. He has successfully cheated the National Insurance Company Ltd. alongwith other convicts. That he is not entitled to any mercy or compassion.
12. Regarding the convicts Arvind Kumar Sharma and Adarsh Agarwal, it is stated that in pursuance to the systematic and wellplanned conspiracy, they forged reports/documents and acted in connivance with other convicts in this case.
13. It is further urged on behalf of the State that most CBI vs. Rajesh Kohli & Ors. 73 of 90 pages 74 CBI case . No.22/11 of the pleas taken by the convicts are routine and stock pleas and in any case, in the case under the Prevention of Corruption Act, these pleas taken are not considered as mitigating circumstances. It has, therefore, been prayed that exemplary punishment be awarded to the convicts herein.
14. On behalf of the CBI, following case law have been cited:
(i) State V A Parthiban, AIR 2007 Supreme Court 51,
(ii) State V Ratan Lal Arora, AIR 2004 Supreme Court 2364 &
(iii) Ram Narain Poply Vs. CBI, AIR 2003 Supreme Court 2748
(iv) State of J & K Vs. Vinay Nanda, AIR 2001 SC 611.
(v) State Vs. Rattan Lal Arora (2004) 4 SCC 590.
15. On behalf of the convicts, following case law have been cited:
(i) State of UP V Sanjay Kumar, (2012) 8 Supreme Court Cases 537,
(ii) Kamaldin & Ors V. CBI, Crl. M.C. 1401/2010,(High Court of Delhi)
(iii) State of J & K Vs. Vinay Nanda, Manu/SC/0028/2001 CBI vs. Rajesh Kohli & Ors. 74 of 90 pages 75 CBI case . No.22/11
16. At the very outset, it is observed that there is no quarrel over the settled propositions of law discussed in the aforesaid case law, cited by the parties.
17. The Hon'ble Apex Court in the case of State of Rajasthan Vs. Vinod Kumar, decided on, 18th May, 2012 (Criminal Appeal No. 1887) reiterated the law laid down in State of J&K Vs. Vinay Nanda, AIR 2001 SC P 611, and observed that superannuation of the convict and the pendency of criminal trial for over a period of time cannot be treated a special reason to reduce the sentence.
18. In the same appeal quoting 'M B Joshi Vs. State of Maharashtra, AIR 2001 SC 147' the Hon'ble Apex Court observed that:
"It is the defect of the system that
longevity of the cases tried under the
Prevention of Corruption Act is too
CBI vs. Rajesh Kohli & Ors. 75 of 90 pages
76
CBI case . No.22/11
lengthy. If that is regarded as sufficient for reducing the sentence mandated by the Parliament legislative exercise would stand defeated."
19. It was observed by the Hon'ble Supreme Court in the case reported as State of J & K Vs. Vinay Nanda, AIR 2001 SC P 611, that :
"Corruption at any level, by any person, of any magnitude, is condemnable, which cannot be ignored by the Judicial Courts, when proved. No leniency is required to be shown in proved cases under the Prevention of Corruption Act which itself treats the offences under it of a special nature to be treated differently than the general penal offences. The convicts of the offences under the Act are to be dealt with heavy hand and deterrant rod. No populous or sympathetic approach is needed in such cases."
20. It was further observed by the Hon'ble Supreme CBI vs. Rajesh Kohli & Ors. 76 of 90 pages 77 CBI case . No.22/11 Court in the aforesaid case that :
"Accused facing trial since long;
amount allegedly misappropriated already been deposited; undergone departmental punishment; only bread earner in family; wife and three children's dependence on him are the circumstance which do not constitute 'special reasons'."
21. It was observed by the Hon'ble High Court in the cases reported as Jai Bhagwan Vs. State (NCT of Delhi), 2008 150 DLT 46 (Delhi) and Ravinder Kumar Arora Vs. CBI Manu/DE/8816/2007 (Delhi) , that :
"It is a normal thing that 'trial' of the person is considered a period of 'agony' undergone by him. But we tend to forget the agony of the society and the complainant who dared lodge the complaint. The entire purpose of the legislature of sentencing the offenders stands defeated and that is the one reason CBI vs. Rajesh Kohli & Ors. 77 of 90 pages 78 CBI case . No.22/11 that wages of corruption are considered more attractive in this country. The person caught is not always a firsttimer corrupt. He may have been indulging into corrupt activities / practices for a long number of years. It is to his advantage that the trial is prolonged. He spends a fraction of amount, earned by corrupt practices on litigation and professionals to see that ultimately he makes Criminal Justice System a laughing stock. In this process, the entire legislative purpose of punishing a corrupt stands defeated.
22. It was held by the Hon'ble Supreme Court in the case reported as State of M. P. Vs. Shambhu Dayal Nagar, (2006) 8 SCC P 693, that :
"Corruption by public servant has become gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of CBI vs. Rajesh Kohli & Ors. 78 of 90 pages 79 CBI case . No.22/11 corruption. Large scale corruption retards the nation building activities and everyone has to suffer on that count."
23. It was observed by the Hon'ble High Court in the case reported as AIR 1961, Mysore P 49, that:
"Infliction of a lenient sentence will defeat the purpose of the P. C. Act."
24. It was observed by the Hon'ble Apex Court in the case reported as State of T. N Vs. Kaliaperumal, (2005) 12 SCC 473 and State Vs. Ratan Lal Arora, (2004) 4 SCC 590 that :
"Section 18 of the Probation of Offenders Act specifically bars the offence under PC Act from the purview of the Act."
25. The convicts, therefore, cannot be enlarged on probation in this case relating to serious offences.
26. It was observed by the Hon'ble Supreme CBI vs. Rajesh Kohli & Ors. 79 of 90 pages 80 CBI case . No.22/11 Court in the case reported as State of M. P. Vs. Ram Singh, AIR 2000 SC 870, that:
"Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to maliganise the polity of the country leading to disastrous consequences.
It is termed as plague which is not
only contagious but if not
controlled spreads like a fire in a
jungle. Its virus is compared with
HIV leading to AIDS being
incurable. The sociopolitical
system exposed to such a dreaded
communicable disease is likely to
crumble under its own weight.
Corruption is opposed to democracy
and social order, being not only
anti people, but aimed and targeted
against them. It affects the economy
and destroys the cultural heritage."
27. Further, it was observed by the Hon'ble Supreme Court in the case law reported as CBI vs. Rajesh Kohli & Ors. 80 of 90 pages 81 CBI case . No.22/11 Ankush Maruti Shinde Vs State of Maharashtra, AIR 2009 SC 2609 that:
" The social impact of the crime e.g.
where it relates to offences against
women, decoity, kidnapping,
misappropriation of public money,
treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest cannot be lost sight of and per se require exemplary treatment. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats."
28. It was held by Hon'ble Supreme Court in the case reported as Mohd. A Hussain Vs. Asstt. CBI vs. Rajesh Kohli & Ors. 81 of 90 pages 82 CBI case . No.22/11 Collector, Custom (Prevention) Ahmedabad, AIR 1998 SC 2143, that :
"If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different. Sentencing judge should try to ensure that the totality of the sentences is correct in the light of all the circumstances of the case."
"In arriving at an appropriate sentence, the court must consider, and some times reject, many factors. The court must 'recognise, learn to control and exclude' many diverse data. It is a balancing act and tortuous process to ensure reasoned sentence."
29. It was further held by Hon'ble Supreme Court in CBI vs. Rajesh Kohli & Ors. 82 of 90 pages 83 CBI case . No.22/11 the case reported as A. B. Bhaskara Rao vs. Inspector of Police, CBI, Vishakapatnam, 2011(4) RCR (Criminal) 290 (SC) that :
"in the case of corruption by public servant, long delay in disposal, quantum of amount of bribe and that the delinquent lost his job due to conviction etc., are not to be taken as mitigating circumstances for reduction of the sentence".
30. In the case of Siddarama and Ors. Vs. State of Karnataka, 2006 IV AD (Cri.) (SC) 78, it was held that:
"undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society can no longer endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it CBI vs. Rajesh Kohli & Ors. 83 of 90 pages 84 CBI case . No.22/11 was executed or committed etc."
31. It was further held in the case law reported as Kishan Dayal vs. State, 1958 Raj LW 596 that:
" A corrupt official is a menace to the society and far from helping in the proper functioning of the Government and implementing of the laws, brings the Government and the society at large into disrepute. It is through the agency of the public servants that the policy of the Legislature as well as of the Government is implemented. It is through the public servants that crimes are detected and offenders are brought to book. It is through strictly honest and incorruptible public servants that the welfare of the society can be ensured. If such public servants are open to corruption and coerce the public into paying them illegal gratification, the whole structure of the society would be upset and the CBI vs. Rajesh Kohli & Ors. 84 of 90 pages 85 CBI case . No.22/11 policy of the Government and of the Legislature, howsoever, beneficial it may be, would gravely suffer. A public servant, therefore, once he is found to be guilty of accepting or obtaining illegal gratification, deserves no soft corner or indulgence from the Courts of Law."
32. It was held in the case reported as Madhukar Bhaskarrao Joshi vs. State of Maharashtra, 2001 Cr. LJ 175(SC): that:
"When corruption was sought to be eliminated from the polity all possible stringent measures are to be adopted within the bounds of law.
One such measure is to provide condign punishment. Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was precisely the reason CBI vs. Rajesh Kohli & Ors. 85 of 90 pages 86 CBI case . No.22/11 why the sentence was fixed as seven years and directed that even if the said period of imprisonment need not be given, the sentence shall not be less than the imprisonment for one year. Such a legislative insistence is reflection of Parliament's resolve to meet corruption cases with very strong hand to give signals of deterrence as the most pivotal feature of sentencing of corrupt public servants. All public servants have to face very serious consequences. If on the other hand any public servant is given the impression that if he succeeds in protracting the proceedings that would help him to have the advantage of getting a very light sentence even if the case ends in conviction, its fallout would afford incentive to public servants who were susceptible to corruption to indulge in such nefarious practices with immunity. Increasing the fine after reducing the CBI vs. Rajesh Kohli & Ors. 86 of 90 pages 87 CBI case . No.22/11 imprisonment to a nominal period can also defeat the purpose as the corrupt public servants could easily raise the fine amount through the same means."
33. I have thoroughly and carefully considered the rival contentions. I have also examined the asserted mitigating and aggravating circumstances, pointed out by the parties. I am of the considered opinion that considering all the aspects of the matter, the following sentence shall be appropriate to meet the ends of justice and as such is awarded:
(i) All the four convicts herein are awarded sentence of three years rigorous imprisonment and a fine of Rs.5000/, in default, one month simple imprisonment, each, for the offence punishable under section 120B IPC.
(ii) Convict Devender Kumar Garg, who CBI vs. Rajesh Kohli & Ors. 87 of 90 pages 88 CBI case . No.22/11 fraudulently cheated the National Insurance Company Ltd., to the tune of Rs.2,93,157/, is sentenced to four years rigorous imprisonment besides a fine of Rs.3 lakhs, in default, nine months simple imprisonment for the offence punishable under section 420 IPC. For the offence punishable under section 471 read with section 468 IPC, convict Devender Kumar Garg shall suffer sentence of rigorous imprisonment for three years and six months and a fine of Rs.
10,000/, in default, two months simple imprisonment.
(iii) Convict Arvind Kumar Sharma is awarded sentence of rigorous imprisonment for three years and six months and a fine of Rs.10,000/, in default, two months simple imprisonment for the offence punishable under section 420 read with section 468 IPC.
CBI vs. Rajesh Kohli & Ors. 88 of 90 pages 89 CBI case . No.22/11
(iv) Convict Adarsh Agarwal is awarded sentence of rigorous imprisonment for three years and six months and a fine of Rs.10,000/ each, in default, two months simple imprisonment for the offence punishable under section 468 read with section 420 IPC.
(v) Convict Rajesh Kumar Kohli, who is convict in several cases, is hereby awarded a sentence of four years rigorous imprisonment and a fine of Rs.25,000/, in default, three months simple imprisonment, for the offence punishable under section 13 (2) read with section 13 (1) (d) of the Prevention of Corruption Act, 1988.
34. From out of the fine imposed upon convict Devender Kumar Garg, if realised a sum of Rs. Three Lakhs be paid to NIC Ltd, the complainant, CBI vs. Rajesh Kohli & Ors. 89 of 90 pages 90 CBI case . No.22/11 as compensation.
35. All the aforesaid sentences shall run concurrently.
36. Benefit of section 428 Cr.P.C. is extended to the convicts.
37. A copy of the judgment and order on sentence be given to all the convicts, free of cost, forthwith.
38. File be consigned to record room.
Announced in the open court ( N. K. Kaushik ) on 7th December, 2012 Special Judge (PC Act) CBI Dwarka Courts CBI vs. Rajesh Kohli & Ors. 90 of 90 pages