Delhi District Court
Hussain @ Ibrahim Ahmed Bhatti vs . Assistant Collector Of on 10 October, 2018
IN THE COURT OF KOVAI VENUGOPAL, SPECIAL JUDGE,
P.C. ACT (CBI)-09, CENTRAL DISTRICT, TIS HAZARI : DELHI
CC No. 11/15 (532351/16)
RC No. 5(E)/07/EOU-III/DLI
CENTRAL BUREAU OF INVESTIGATION
VERSUS
K. N. AITHAL & ORS.
IN THE MATTER OF :
Central Bureau of Investigation
versus
1. Ashok Jain (A-5)
S/o Late Sh. Premchand Jain,
R/o C-7/298, Keshav Puram,
Delhi-110035
2. Arvind Chawde (A-6)
S/o Late Sh. Balubhai,
R/o 002/B, Beaubelle Apartment Queens Park,
Bhayandar (East), District Thane,
Maharashtra-401107
3. Devender Kumar Chalke (A-10)
S/o Late Sh. W.S. Chalke,
R/o 701/C20, First Floor, Sankalp Siddi Society,
Sector-7, Charkop, Kandivali (West),
Mumbai, Maharashtra-400067
Date of Institution : 01.07.2009
Date of Final Hearing : 20.09.2018
Date of Judgment : 20.09.2018
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JUDGMENT
BRIEF FACTS OF THE CASE
1. RC No. 5(E)/07/EOU-III/DLI was registered based on the complaint dated 28.12.2007 by Sh. D. Murli Dhar Rao, DGM, Canara Bank, Disciplinary Action Cell, New Delhi alleging that during 2005-06, six firms were sanctioned OCC limits as mentioned against each by K. N. Aithal, the then Chief Manager, Canara Bank, Chandni Chowk Branch, Delhi on the basis of inflated valuation reports in respect of properties mortgaged with the Bank as collateral securities, which resulted in a wrongful loss of Rs. 447.26 lacs as the accounts have become NPAs.
2. Names of the six companies/firms, loan/credit limits advanced to them and values of properties mortgaged are as follows:-
S. NAME OF THE FIRM OD/CC LIMIT PROPERTY ACTUAL No VALUED VALUE OF FOR PROPERTY
1. M/S. ANURAG FABRICS RS.75 LACS RS.121.5 RS.17.36 LACS LACS
2. M/S. DEV TRADERS RS.75 LACS RS.76.47 RS.5.0 LACS LACS
3. M/S. GANAPATI PAPER MART RS.75 LACS RS.84.24 RS.6.5 LACS LACS
4. M/S. IMPEX GOLD RS.75 LACS RS.103.79 RS.9.5 LACS LACS
5. M/S. K.M.ENTERPRISES RS.75 LACS RS. 24 LACS RS.10.0 LACS CC No. 11/15 (532351/16) 2 of 18
6. M/S. BITTOO TRADING CO. RS.60 LACS RS.77.50 RS.17.0 LACS LACS
3. It has been alleged that these loan/credit limits were sanctioned by K. N. Aithal, the then Chief Manager and recommended by Ravi Malhotra, the then Credit Manager of the Bank against the norms / guidelines laid down by the Bank. The audited balance sheets submitted by the firms are false and forged. The Chartered Accountants, who prepared the said Audited Balance Sheets have categorically denied to have conducted the audit of these firms. The two aforesaid bank officials, who had conducted the pre-sanction inspection, failed to point out the irregularities like, over valuation of the properties, quality of business, fabricated financial documents etc. and proceeded to sanction the loans to these firms. The stocks were not available with the firms and the collateral securities were not sufficient to recoup the losses.
4. It has been further alleged that the investigation disclosed that the accounts of the firms, namely, M/s Anurag Fabrics, M/s Dev Traders and M/s K.M. Enterprises were opened by the borrowers, namely, Dharmesh Kiri Thakar (A-9), Devendra Kumar Chalke (A-8) and Arvind Chawde (A-6) respectively, in assumed names at the instance of accused Ashok Jain. For this purpose, the borrowers along with CC No. 11/15 (532351/16) 3 of 18 accused Ashok Jain approached the Branch Head K. N. Aithal. They submitted fake / forged documents like Voter Identity Card, PAN Card etc. in support of their identity in assumed names and K. N. Aithal and Ashok Jain arranged introduction to the accounts. Thereafter, their account opening applications were sent to H. S. Sodhi, Officer (Advances) in the branch, who verified signatures of the introducers.
5. It has been further revealed in the investigation that the different introducers have taken the plea that they signed blank account opening forms at the instance of accused Ashok Jain, without any knowledge of the person, who opened the account or his business. As such the introducer's certificate on the account opening form regarding his having known the person, who opened the account is based on misrepresentation of facts. Thereafter, the accounts were allowed/approved to be opened by Sh. N. K. Abbi, Senior Manager in whose presence the borrowers signed the Specimen Signature Cards and different documents in support of the identity of borrowers like PAN Card, Voter Identity Card and copies of the Sale Deeds in respect of the premises from where the firms were projected to be carrying out their businesses. In case of all the accounts operated by impersonation, from where the firm was projected to be carrying out CC No. 11/15 (532351/16) 4 of 18 its business, an unsigned copy of sale deed which is in favour of the borrower was placed on record.
6. As per charge sheet, it has been alleged that site visits of the firms were carried out by K.N. Aithal or Ravi Malhotra. The funds sanctioned in the different accounts were disbursed within a month or so without carrying out any stock verification, which was essential for determining the drawing power and in turn disbursement of the funds. As such, apparently, the accounts were opened and applications for sanction of financial assistance were processed in a designed manner to ensure fraudulent disbursement of funds. This is besides the fact that prior to disbursement of funds, after sanction of the limits, the borrowers in the respective accounts executed different loan and security documents which were verified and witnessed by bank officials Ravi Malhotra and Jai Narain Saggu. The verifications are based on misrepresentation of facts as they projected that the concerned borrower was carrying out his business from the said premises for a few years, which was not possible in the aforesaid background.
7. It is further alleged that as regards accounts of M/s Anurag Fabrics, M/s Dev Traders and M/s K.M. Enterprises, the said firms were not in CC No. 11/15 (532351/16) 5 of 18 existence. It is further alleged that the pre-sanction visit of A-1 K.N. Aithal is based on misrepresentation of the facts and same is the case of appraisal carried out by A-2 Ravi Malhotra who recommended the limits. Stock verification was willfully not carried out so that funds are withdrawn at the earliest without monitoring drawing powers in pursuance of criminal conspiracy. Same is the case of accounts of M/s Ganpati Paper Mart, M/s Impex Gold and M/s Bittoo Trading Co. where the funds were allowed to be withdrawn in cash by impersonation, by the officer concerned i.e. accused H.S. Sodhi who was well aware of identity of the persons drawing cash as it was he who allowed opening of the accounts of the individual persons in their assumed names. Accused K.N Aithal, Ravi Malhotra and Jai Narain Saggu received valuable kickbacks from accused Ashok Jain in consideration of their having abused their official position in pursuance of the criminal conspiracy. It is further alleged that criminal conspiracy to defraud the bank is clearly revealed in the process and how the bank officials abused their official position. It is further alleged that the above mentioned facts as stated in chargesheet, constitute offences punishable U/s 120B r/w Section 419, 420, 467, 468, 471 IPC and Section 13(2) r/w Section 13(1)(d) CC No. 11/15 (532351/16) 6 of 18 of Prevention of Corruption Act, 1988 and substantive offences thereof against accused K.N. Aithal (Public servant), Ravi Malhotra (Public servant), M.S. Juneja, D.C. Bhagat, Ashok Jain, Arvind Balubhai Chawde as Krishan Mittal, Romi Malhotra, Devender W. Chalke as Devender Kumar, Dharmesh Kiri Thakkar as Rajesh Soni, Surender Kumar, Pawan Mittal, Mohit Aggarwal, Jai Narain Saggu (Public servant), Deepak Kumar, Sandeep Jain, Rajiv Goyal, Khem Raj Aggarwal, Harjit Singh Sodhi (Public servant), Vijay Grover, Ashutosh Aggarwal, Sarfraz Ali, Ashim Narang and Sanjay Kumar.
8. The proceedings against accused M.S. Juneja (A-3) and Deepak Kumar (A-14) were abated vide orders dated 07.01.2010 and 17.09.2012 respectively. Accused Surender Kumar (A-10) and accused Mohit Aggarwal (A-12) were declared as POs vide order dated 31.03.2011.
9. Accused K.N. Aithal (A-1), Ravi Malhotra (A-2), D.C. Bhagat (A-4), Ashok Jain (A-5), Arvind Chawde (A-6), Romi Malhotra (A-7), Devender Kumar Chalke (A-8), Dharmesh Kiri Takkar (A-9), Pawan Mittal (A-11), Jai Narain Saggu (A-13), Sandeep Jain (A-15), Rajiv Goyal (A-16), Khemraj Aggarwal (A-17), Harjit Singh Sodhi (A-18), Vijay Grover (A-19), Ashutosh Aggarwal (A-20) and Sanjay Kumar (A-
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23) appeared before the Court.
CHARGE
10. After going through the contents of chargesheet, documents filed along with it and after hearing the accused at length, this Court passed an order on charge on 31.05.2018. Vide said order dated 31.05.2018, accused Harjit Singh Sodhi (A-18), Sarfraz Ali (A-21) and Ashim Narang (A-22) are discharged U/s 239 Cr.P.C. and it is found that there is sufficient material to frame the charges against the remaining accused. Accordingly, charges U/s 240 Cr.P.C. were framed vide order dated 09.08.2018 and 27.08.2018 against the following accused as below :-
1. Accused K.N. Aithal (A-1) for the offences U/s 120-B r/w Section 420, 467, 468 and 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act and substantive charge under Section 13(2) r/w Section 13(1)
(d) of PC Act.
2. Accused Ravi Malhotra (A-2) for the offences U/s 120-B r/w Section 420, 467, 468 and 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act and substantive charge under Section 13(2) r/w Section 13(1)(d) of PC Act.
3. Accused D.C. Bhagat (A-4) expired on 04.07.2018 i.e. before CC No. 11/15 (532351/16) 8 of 18 framing of charges.
4. Accused Ashok Jain (A-5) for offences U/s 120-B r/w Section 420, 467, 468 and 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act and substantive charges U/s 420, 467, 468 and 471 of IPC.
5. Accused Arvind Chawde (A-6) for the offences U/s 120-B r/w Section 420, 467, 468 and 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act and substantive charges U/s 419, 420 and 471 of IPC.
6. Accused Romi Malhotra (A-7) for the offences U/s 120-B r/w Section 420, 467, 468 and 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act and substantive charges U/s 419, 420 and 467 of IPC.
7. Accused Devender Kumar Chalke (A-8) for the offences U/s 120-B r/w Section 420, 467, 468 and 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act and substantive charges U/s 419, 420 and 471 of IPC.
8. Accused Dharmesh Kiri Thakar (A-9) for the offences U/s 120-B r/w Section 420, 467, 468 and 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act and substantive charges U/s 419, 420 and 471 of IPC.
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9. Accused Pawan Mittal (A-11) for the offences U/s 120-B r/w Section 420, 467, 468 and 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act and substantive charges U/s 420 and 471 of IPC.
10. Accused Jai Narain Saggu (A-13) for the offences U/s 120-B r/w Section 420, 467, 468 and 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act and substantive charge U/s 13(2) r/w Section 13(1)(d) of PC Act.
11. Accused Sandeep Jain (A-15) for the offences U/s 120-B r/w Section 420, 467, 468 and 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act and substantive charges U/s 419, 420 and 467 of IPC.
12. Accused Rajiv Goyal (A-16) for the offences U/s 120-B r/w Section 420, 467, 468 and 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act and substantive charges U/s 419, 420 and 467 of IPC.
13. Accused Khemraj Aggarwal (A-17) for the offences U/s 120-B r/w Section 420, 467, 468 and 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act.
14. Accused Vijay Grover (A-19) for the offences U/s 120-B r/w Section 420, 467, 468 and 471 IPC r/w Section 13(2) r/w Section CC No. 11/15 (532351/16) 10 of 18 13(1)(d) of PC Act and substantive charge U/s 420 IPC.
15. Accused Ashutosh Aggarwal (A-20) for the offences U/s 120-B r/w Section 420, 467, 468 and 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act.
16. Accused Sanjay Kumar (A-23) for the offences U/s 120-B read with 420, 467, 468, 471 IPC r/w Section 13(2) r/w Section 13(1)(d) of PC Act and substantive charge U/s 420 of IPC.
PLEA OF ACCUSED
11. On 09.08.2018 and 27.08.2018, charges were read over and explained to the above accused and they were asked whether they plead guilty of the offences charged or claim to be tried. Accused K.N. Aithal (A-1), Ravi Malhotra (A-2), Romi Malhotra (A-7), Pawan Mittal (A-11), Jai Narain Saggu (A-13), Sandeep Jain (A-15), Rajiv Goyal (A-16), Khemraj Aggarwal (A-17), Vijay Grover (A-19) and Ashutosh Aggarwal (A-20) have pleaded not guilty and claimed trial.
12. Accused Ashok Jain (A-5), Arvind Chawde (A-6), Devender Kumar Chalke (A-8) and Dharmesh Kiri Thakar (A-9) have pleaded guilty of the offences charged against them.
13. Accused Ashok Jain has pleaded guilty of the offences CC No. 11/15 (532351/16) 11 of 18 punishable U/s 120-B read with Section 420, 467, 468 and 471 of IPC read with Section 13(2) read with Section 13(1)(d) of PC Act and further substantive offences U/s 420, 467 and 471 of IPC.
14. Accused Arvind Chawde has pleaded guilty of the offences punishable U/s 120-B read with Section 420, 467, 468 and 471 of IPC read with Section 13(2) read with Section 13(1)(d) of PC Act and further substantive offences U/s 419, 420 and 471 of IPC.
15. Accused Devender Kumar Chalke has pleaded guilty of the offences punishable U/s 120-B read with Section 420, 467, 468 and 471 of IPC read with Section 13(2) read with Section 13(1)(d) of PC Act and further substantive offences U/s 419, 420 and 471 of IPC.
16. Accused Dharmesh Kiri Thakar not present today and application seeking exemption from personal appearance filed by his Counsel is allowed and hearing on his plea of guilty is deferred for next date of hearing.
DISCUSSION
17. Heard. Since, accused Ashok Jain (A-5), Arvind Chawde (A-6) and Devender Kumar Chalke (A-8) have pleaded guilty of the offences charged against them, I find it necessary to briefly mention CC No. 11/15 (532351/16) 12 of 18 the role played by them in commission of the alleged offences and material available on record against them.
18. Role of accused Ashok Jain (A-5) : Ashok Jain conspired with the other accused including Bank officials to cheat the Bank by opening current accounts in the names of six Companies, firms namely, (1) M/s Anurag Fabrics (2) M/s Dev Traders (3) M/s Ganapati Paper Mart (4) M/s Impex Gold (5) M/s K.M. Enterprises and (6) M/s Bittoo Trading Co. For this purpose, he brought some people i.e. accused, namely, Dharmesh Kiri Thakar, Devender Kumar Chalke and from Mumbai with the help of Kishan Mittal @ Arvind Chawde. Six current accounts were opened in the assumed names of borrowers and bogus firms by using forged documents like PAN Cards, Voter Identity Cards, Balance Sheets and Stock Statements. The IO has examined witnesses, namely, Ashwani Bajaj (LW-24) and Deepak Bareja (LW-22) who are the Chartered Accountants who categorically denied that they have signed the Balance Sheets of the firms in question. As per the prosecution, accused Ashok Jain used to fill in the cheques which are already signed by drawers and used to withdraw the amount impersonating himself to be some unknown person and further used to sign on the backside of the cheques in CC No. 11/15 (532351/16) 13 of 18 those assumed names.
19. The prosecution has filed several cheques in the accounts of various firms in question which are filled in by accused Ashok Jain allegedly to withdraw the amount with an intention to cheat the Bank. The said cheques are filed as part of documents i.e. D-31, D-43 and D-49 which pertain to M/s Anurag Fabrics, M/s K.M. Enterprises and M/s Ganapati Paper Mart respectively. GEQD opinion is also filed as D-75 to support the case of prosecution.
20. LW-26 Sachin, LW-53 Himanshu and LW-54 Arun Jain in their statements identified the handwriting and signatures of accused Ashok Jain on cheques, deposit slips and on the documents like Balance Sheet, Stock Statements allegedly forged by Ashok Jain for the purpose of cheating the Bank. LW-40 Manoj Rana in his statement mentions that he signed the blank account opening form of M/s Ganpati Paper Mart at the instance of accused Ashok Jain. LW-9 Jai Kishan, LW-19 Chander Sekhar and LW-41 Ramesh Kumar Gupta stated in their statements U/s 161 Cr.P.C. that the properties were actually purchased by accused Ashok Jain by paying the sale consideration to them and the same properties were used as collateral security with inflated valuations prepared by A-4, A-17 and CC No. 11/15 (532351/16) 14 of 18 A-20 for the purpose of obtaining huge amounts as credit limit.
21. Role of Arvind Chawde (A-6) : Accused Arvind Chawde impersonated as Kishan Mittal for opening the account of M/s K.M. Enterprises and submitted forged documents pertaining to his identity to the bank and certified the same in the assumed name. He projected that he was proprietor of M/s K.M. Enterprises which as a matter of fact was a non-existent firm. He shared the proceeds of the crime as well as allowed accused Ashok Jain and others to utilize the funds for purposes other than those for which it was sanctioned, by way of making available to them the blank cheques duly signed by him in the assumed name. According to prosecution, he was also instrumental in payment of kick backs/illegal gratification of Rs. 4 lacs from another account of M/s K.M. Enterprises with Indian Overseas Bank, Darya Ganj Branch, Delhi to accused K.N. Aithal, which was credited by way of demand drafts in the account of his wife (Smt. Bhagya N. Aithal) at Canara Bank, Chandni Chowk Branch, Delhi and Corporation Bank, Shalimar Bagh, Delhi.
22. Prosecution has filed along with chargesheet documents pertaining to M/s K.M. Enterprises as D-43, D-71, D-72 and statement of account i.e. D-95 which are seized from Bank. The CC No. 11/15 (532351/16) 15 of 18 cheques issued in the account of M/s K.M. Enterprises signed by the accused Arvind Chawde which are used for withdrawal of the amount by accused Ashok Jain and others along with credit and debit vouchers are filed as document D-43.
23. Role of Accused No. 8 Devender Kumar Chalke :- According to prosecution, he impersonated as Devender Kumar for the purpose of opening and operation of the account in the name of M/s Dev Traders as its proprietor. He authenticated the different documents pertaining to his fake/forged identity and presented the same to the bank as genuine by certifying these forged and fake documents. He received part of the proceeds of the crime and was instrumental in utilization of the remaining proceeds by other accused persons for the purposes other than for which it was sanctioned, by way of making available blank cheques in the assumed name as Devender Kumar. He was aware that valuation of the property at 2125/2126, First Floor, Bhagirath Palace, Chandni Chowk, Delhi-110006 mortgaged with the bank was highly inflated as the same was purchased for a nominal amount only a few days prior to its valuation.
24. Prosecution has filed along with chargesheet documents pertaining to M/s Dev Traders as D-32 (loan file), D-36 (documents CC No. 11/15 (532351/16) 16 of 18 pertaining to Bank Account) and D-37 (cheques and vouchers) which are seized from Bank and D-97 (statement of account of M/s Dev Traders). The cheques issued in the account of M/s Dev Traders signed by the accused Devender Kumar Chalke which are allegedly used for withdrawal of the amount by accused Ashok Jain and others along with credit and debit vouchers are filed as document D-37. GEQD opinion is also filed to support the case of prosecution to prove the signatures of accused Devender Kumar Chalke. CONCLUSION
25. I am satisfied that on 09.08.2018, accused have pleaded guilty of the offences charged voluntarily without any pressure after understanding the charges against them and consequences thereupon. The abovesaid accused have reiterated their stand on their plea of guilty today also. Accordingly, the above accused are convicted U/s 241 Cr.P.C. as follows :
(i) Accused Ashok Jain, is convicted for the offences punishable U/s 120-B read with Section 420, 467, 468 and 471 of IPC read with Section 13(2) read with Section 13(1)(d) of PC Act and further substantive offences U/s 420, 467 and 471 of IPC ;
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(ii) Accused Arvind Chawde is convicted for the offences punishable U/s 120-B read with Section 420, 467, 468 and 471 of IPC read with Section 13(2) read with Section 13(1)(d) of PC Act and further substantive offences U/s 419, 420 and 471 of IPC and ;
(iii) Accused Devender Kumar Chalke is convicted for the offences punishable U/s 120-B read with Section 420, 467, 468 and 471 of IPC read with Section 13(2) read with Section 13(1)(d) of PC Act and further substantive offences U/s 419, 420 and 471 of IPC.
26. Convicts Ashok Jain, Arvind Chawde and Devender Kumar Chalke shall be heard on the question of sentence. Digitally signed by KOVAI
KOVAI VENUGOPAL
Announced in open Court VENUGOPAL Date: 2018.10.12
17:06:22 +0530
today i.e. on 20.09.2018
(KOVAI VENUGOPAL)
Special Judge, PC Act (CBI-09)
Central, Tis Hazari Courts, Delhi
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IN THE COURT OF KOVAI VENUGOPAL, SPECIAL JUDGE, P.C. ACT (CBI)-09, CENTRAL DISTRICT, TIS HAZARI: DELHI CC No. 11/2015 (532351/2016) R.C. No. 5(E)/07/CBI/EOU-III/ND CENTRAL BUREAU OF INVESTIGATION VERSUS K. N. AITHAL & ORS.
IN THE MATTER OF :
Central Bureau of Investigation VERSUS
1. Ashok Jain (A-5) S/o Late Sh. Premchand Jain R/o C-7/298, Keshav Puram Delhi-35
2. Arvind Chawde (A-6) S/o Late Sh. Balubhai, R/o 002/B, Beaubelle Apartment Queens Park, Bhayandar (East), District Thane, Maharashtra-401107
3. Devender Kumar Chalke (A-10) S/o Late Sh. W.S. Chalke, R/o 701/C20, First Floor, Sankalp Siddi Society, Sector-7, Charkop, Kandivali(West), Mumbai, Maharashtra-400067
4. Dharmesh Kiri Thaker (A-9) S/o Late Sh. Kirit H. Thaker, R/o 101, Sai Mauli Apartment opposite Post Office, Near Sai Baba Mandir, CC No. 11/15 (532351/16) 20 of 18 Bhayender(west), District Thane, Maharashtra-400067 Date of Institution : 01.07.2009 Date of Judgment : 20.09.2018 Date of Sentence : 10.10.2018 ORDER ON SENTENCE
1. I have heard the Ld. P.P. for the CBI, Convict Ashok Jain and Ld. Defence Counsel for Convicts Arvind Chawde and Devender Kumar Chalke on the question of Sentence. I have also perused the file.
2. It is submitted by the Ld. P.P. for CBI that the Convicts do not deserve any leniency while awarding the sentence. It is submitted that the Convicts have been guilty of the offences of serious nature which resulted in huge loss to Public Institution i.e. Canara Bank to the tune of Rs. 4,47,26,000. It is also submitted that maximum punishment should be awarded to the Convicts. Ld. PP for CBI submits that no leniency can be shown particularly in case of Convict Ashok Jain who was the master mind of entire fraud. It is also submitted that Convict Ashok Jain was an active participant at every stage of the offence right from hatching conspiracy to withdrawal of hefty amounts from the Bank. It is also submitted that Convict Ashok Jain is involved in number of cases and facing trial before several Courts. It is further submitted that Ashok Jain is convicted in one such case and sentenced to two years imprisonment.
3. Ld. PP for CBI also submits that the punishment should be in proportion to the gravity of the offence and leniency cannot be shown merely on the ground that accused has pleaded guilty. Ld. PP for CBI relied on the Judgment of Hon'ble Apex Court in Mohd. Akhtar CC No. 11/15 (532351/16) 21 of 18 Hussain @ Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs (Prevention) Ahmedabad and Ors. wherein it is held that "generally, it is both proper and customery for courts to give credit to an accused for pleading guilty to the Charge. But no credit need be given if the plea of guilty in the circumstance is inevitable or the accused has no alternative but to plead guilty. The accused being caught red handed is one such instance."
4. Convict Ashok Jain has submitted that he is 57 years of age and is suffering from health problems. It is also submitted that he has a wife, two daughters and two sons. It is also submitted that prior to 2007 he was not involved in any case and was leading peaceful life by doing his own business. It is further submitted that he got trapped by some other persons like Romi Malhotra and since then he is facing cases. It is also submitted that he sold out his house and two flats to repay the bank and not owning any property at present.
5. It is further submitted that the properties which are kept as collateral securities with the bank are genuine properties and bank can always recover due amount from selling those properties. Infact, one such property is sold out for more than the defaulted amount. He further submits that he has already spent around 21 months in Judicial Custody in the present case and feeling repentant for the mistakes committed by him and prays for lenient view.
6. Ld. Counsel of the Convict Arvind Chawde has submitted that the Convict is resident of Mumbai innocently trapped in the offence. He is 51 years of age having mother, wife, two daughters and one son. He is earning his livelihood by working as a Supervisor under a private CC No. 11/15 (532351/16) 22 of 18 builder and he is the sole earning member in the family. It is also submitted that his mother is about 81 years old and is suffering from various ailments. It is also submitted that the Convict has always cooperated with the investigation and appeared before the Court for last 10 years by travelling from Mumbai on each and every date of hearing despite so many financial constraints. It is further submitted that Convict is feeling remorse as this is the only mistake committed by him in his entire life. It is also submitted that convict has pleaded guilty and prays for lenient view to be taken.
7. Ld. Counsel of the Convict Devender Kumar Chalke has submitted that the Convict is resident of Mumbai innocently trapped in the offence. He is 51 years of age having wife and two daughters studying in School. He is earning his livelihood by working as a Supervisor under a private builder and he is the sole earning member in the family. It is also submitted that his wife is suffering from various ailments and some medical documents are also shown to the Court.
It is also submitted that the Convict has always cooperated with the investigation and appeared before the Court for last 10 years by travelling from Mumbai on each and every date of hearing despite so many financial constraints. It is further submitted that Convict is feeling remorse as this is the only mistake committed by him in his entire life and not involved in any other case. It is also submitted that convict has pleaded guilty and prays for lenient view to be taken.
8. Ld. Counsel of the Convict Dharmesh Kiri Thakar has submitted that the Convict is resident of Mumbai innocently trapped in the offence. He is 39 years of age having wife, one daughter and CC No. 11/15 (532351/16) 23 of 18 grandmother. He is earning his livelihood by working as a Supervisor under a private builder and he is the sole earning member in the family. It is also submitted that his wife and grandmother are suffering from various ailments. It is also submitted that the Convict has always cooperated with the investigation and appeared before the Court for last 10 years by travelling from Mumbai on each and every date of hearing despite so many financial constraints. It is further submitted that Convict is feeling remorse as this is the only mistake committed by him in his entire life. It is also submitted that convict has pleaded guilty and prays for lenient view to be taken.
9. Heard.
10. Ashok Jain is convicted for the offences punishable U/s 120-B read with Section 420, 467, 468 and 471 IPC read with Section 13(2) read with Section 13(1)(d) of PC Act and substantive offences u/s 420, 467 and 471 IPC.
11. Arvind Chawde is convicted for the offences punishable U/s 120-B read with Section 420, 467, 468 and 471 of IPC read with Section 13(2) read with Section 13(1)(d) of PC Act and further substantive offences U/s 419, 420 and 471 of IPC.
12. Devender Kumar Chalke is convicted for the offences punishable U/s 120-B read with Section 420, 467, 468 and 471 of IPC read with Section 13(2) read with Section 13(1)(d) of PC Act and further substantive offences U/s 419, 420 and 471 of IPC.
13. Dharmesh Kiri Thakar is convicted for the offences punishable U/s 120-B read with Section 420, 467, 468 and 471 of IPC read with Section 13(2) read with Section 13(1)(d) of PC Act and further CC No. 11/15 (532351/16) 24 of 18 substantive offences U/s 419, 420 and 471 of IPC.
14. This is a case in which a Public Sector Bank has been cheated for huge amount in a very methodical, pre-planned manner. It is made out from the case of the prosecution that convict Ashok Jain was the mastermind and he conspired to cheat the Bank with other co- accused and his role can be seen right from the beginning of the fraud till end.
15. In R. Venkatakrishnan vs. CBI VI (2009) SLT 375, Hon'ble Apex Court has held as under :-
"190. A sentence of punishment in our opinion poses a complex problem which requires a balancing act between the competing views based on the reformative, the deterrent as well as the retributive theories of punishment. Accordingly a just and proper sentence should neither be too harsh nor too lenient. In judging the adequacy of a sentence, the nature of the offence, the circumstances of its commission, the age and character of the offender, injury to individual or the society, effect of punishment on offender, are some amongst many other facts which should be ordinarily taken into consideration by the Courts."
16. In the present case, there are also certain mitigating factors which need to be considered. All the convicts have pleaded guilty and expressed remorse for committing the offences. They have been facing the Law for more than a decade. It is not disputed that the properties which were kept with the bank as collateral securities are genuine properties and the bank has already initiated the proceedings to recover its dues by selling the properties.
17. Convicts Arvind Chawde, Devender Kumar Chalke and Dharmesh Kiri Thakar appear to be from poor families doing private jobs for CC No. 11/15 (532351/16) 25 of 18 their livelihood and sole bread earners of their families. All of them have dependent wife and children living in Mumbai. It is not disputed that they are not involved in any other offence. They have come forward honestly before the Court and pleaded guilty as they are repentant of what they have done. It also appears that they have not made any significant financial benefit out of the fraud committed on the Bank as they were only used as pawns. In my opinion, they deserve leniency in sentence.
18. As far as the Convict Ashok Jain is concerned, he is the master mind and his active participation is seen throughout the fraud. He is one of the accused who enriched himself by the money which he got from cheating the Bank. It appears he is also involved in similar other cases also.
19. Considering the overall facts and circumstances, the Convicts are sentenced as under :
(i) Convict Ashok Jain is sentenced to undergo Rigorous Imprisonment for a period of three years and ordered to pay a fine of Rs. 10,000/- for the offence punishable U/s 120-B read with Section 420, 467, 468 and 471 IPC read with Section 13(2) read with Section 13(1)(d) of PC Act, in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of three months.
Ashok Jain is also sentenced to undergo Rigorous Imprisonment for a period of three years and ordered to pay a fine of Rs. 10,000/- for the offence u/s 420 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of three months.
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Ashok Jain is also sentenced to undergo Rigorous
Imprisonment for a period of two years and ordered to pay a fine of Rs. 5,000/- for the offence u/s 467 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of one month.
Ashok Jain is also sentenced to undergo Rigorous Imprisonment for a period of one year and ordered to pay a fine of Rs. Rs. 5,000/- for the offences u/s 471 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of one month. The benefit U/s 428 Cr.P.C., if any, be given to him. All the sentences shall run concurrently.
(ii) Convict Arvind Chawde is sentenced to undergo Rigorous Imprisonment for a period of one year and ordered to pay a fine of Rs. 1,000/- for the offence punishable U/s 120-B read with Section 420, 467, 468 and 471 IPC read with Section 13(2) read with Section 13(1)(d) of PC Act, in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of one month.
Arvind Chawde is also sentenced to undergo Rigorous Imprisonment for a period of six months and ordered to pay a fine of Rs. 1,000/- for the offences u/s 419 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of 15 days.
Arvind Chawde is also sentenced to undergo Rigorous Imprisonment for a period of one year and ordered to pay a fine of Rs. 1,000/- for the offences u/s 420 of IPC in default of payment of CC No. 11/15 (532351/16) 27 of 18 fine, the Convict shall undergo Simple Imprisonment for a period of one month.
Arvind Chawde is also sentenced to undergo Rigorous Imprisonment for a period of six months and ordered to pay a fine of Rs. 1,000/- for the offences u/s 471 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of 15 days. The benefit U/s 428 Cr.P.C., if any, be given to him. All the sentences shall run concurrently.
(iii) Convict Devender Kumar Chalke is sentenced to undergo Rigorous Imprisonment for a period of one year and ordered to pay a fine of Rs. 1,000/- for the offence punishable U/s 120-B read with Section 420, 467, 468 and 471 IPC read with Section 13(2) read with Section 13(1)(d) of PC Act, in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of one month.
Devender Kumar Chalke is also sentenced to undergo Rigorous Imprisonment for a period of six months and ordered to pay a fine of Rs. 1,000/- for the offences u/s 419 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of 15 days.
Devender Kumar Chalke is also sentenced to undergo Rigorous Imprisonment for a period of one year and ordered to pay a fine of Rs. 1,000/- for the offences u/s 420 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of one month.
Devender Kumar Chalke is also sentenced to undergo CC No. 11/15 (532351/16) 28 of 18 Rigorous Imprisonment for a period of six months and ordered to pay a fine of Rs. 1,000/- for the offences u/s 471 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of 15 days. The benefit U/s 428 Cr.P.C., if any, be given to him. All the sentences shall run concurrently.
(iv) Convict Dharmesh Kiri Thakar is sentenced to undergo Rigorous Imprisonment for a period of one year and ordered to pay a fine of Rs. 1,000/- for the offence punishable U/s 120-B read with Section 420, 467, 468 and 471 IPC read with Section 13(2) read with Section 13(1)(d) of PC Act, in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of one month.
Dharmesh Kiri Thakar is also sentenced to undergo Rigorous Imprisonment for a period of six months and ordered to pay a fine of Rs. 1,000/- for the offences u/s 419 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of 15 days.
Dharmesh Kiri Thakar is also sentenced to undergo Rigorous Imprisonment for a period of one year and ordered to pay a fine of Rs. 1,000/- for the offences u/s 420 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of one month.
Dharmesh Kiri Thakar is also sentenced to undergo Rigorous Imprisonment for a period of six months and ordered to pay a fine of Rs. 1,000/- for the offences u/s 471 of IPC in default of payment of fine, the Convict shall undergo Simple Imprisonment for a period of CC No. 11/15 (532351/16) 29 of 18 15 days. The benefit U/s 428 Cr.P.C., if any, be given to him. All the sentences shall run concurrently.
20. Copy of Judgment as well as order on sentence be given immediately to the Convicts, free of cost.
Digitally signedby KOVAI VENUGOPAL
Announced in the open Court KOVAI
VENUGOPAL Date:
2018.10.12
today i.e. on 10.10.2018 17:05:34
+0530
(KOVAI VENUGOPAL)
SPECIAL JUDGE, PC ACT, (CBI)-09
CENTRAL, DELHI
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