Delhi District Court
Cbi vs . Vivek Sood & Ors. on 17 December, 2014
IN THE COURT OF SH. RAKESH SYAL, SPECIAL JUDGE, (PC ACT)
& (CBI)-03, SOUTH WEST DISTRICT, DWARKA, NEW DELHI
CBI Case No. 21/12
RC No. SI 8 2000 E 0006
In re:
Central Bureau of Investigation
Vs.
1. Vivek Sood,
S/o Late Sh. Lalit Krishan Sood,
R/o Flat No. 269, Sector - A,
Pocket -C, Vasant Kunj,
New Delhi - 110070.
2. Nandita Bakshi,
W/o Sh. Rajeev Bakshi,
R/o C-349, Defence Colony,
New Delhi - 110024.
3. Shafique-Ur-Rehman,
S/o Late Sh. Fazlur Rehman Khan,
R/o Flat No. 7, Block No. F,
Nizamuddin West,
New Delhi - 110013.
4. Kirpal Singh,
S/o Late Sh. Sadhu Singh,
R/o Village Chauhan Pur,
Main Road Karawal Nagar,
Delhi - 110094.
5. Niranjan Vasishtha,
CBI Case No. 21/12 17-12-2014 1 of 81
CBI Vs. Vivek Sood & Ors.
S/o Sh. Pitamber Dev Vasishtha,
R/o B-60, Gali No. 4,
Bhajanpura,
Delhi - 110053.
6. Ramwati,
W/o Late Sh. Latori,
R/o B-2/310,
Nand Nagari,
Shahdara,
Delhi - 110093.
7. Ram Gopal Pareek,
S/o Late Sh. Gauri Shanker Pareek,
R/o C-1/52, Mangal Apartments,
Vasundhara Enclave,
Delhi - 110096.
8. Inderjeet Rai Joshi,
S/o Sh. Har Bhagwan Das Joshi,
R/o House No. 992, Sector - 16,
Faridabad, Haryana.
(Proclaimed offender)
Date of Institution of Case : 18-12-2001
Date on which Judgment was reserved : 13-12-2014
Date on which Judgment was delivered : 17-12-2014
JUDGMENT
Facts 1.1 This case was registered on a source information alleging that during the year 1998-99, accused No. 1, Sh. Vivek Sood, Proprietor of M/s CBI Case No. 21/12 17-12-2014 2 of 81 CBI Vs. Vivek Sood & Ors.
Chanda Exports entered into a criminal conspiracy with other accused persons to cheat Dena Bank, Chhatarpur Branch, New Delhi. In pursuance of the said criminal conspiracy, accused No. 1, Vivek Sood fraudulently and dishonestly obtained various credit facilities i.e. Export Packing Credit (herein after referred to as EPC) of Rs. 10 lacs, Foreign Bill Purchase (herein after referred to as FBP)/Foreign Bill Discounting (herein after referred to as FBD) of Rs. 10 lacs and Inland Letter of Credit (herein after referred to as LC) of Rs. 5 lacs i.e. a total of Rs. 25 lacs on the basis of false/forged documents.
1.2 Investigation revealed that accused No. 1, Vivek Sood opened Current Account No. 903 in Chhatarpur Branch of Dena Bank on 25.7.98. During the said period, accused No. 7, R.G. Pareek was Sr. Manager of the Branch. Immediately after opening of the account, Vivek Sood (A-1) submitted an application for grant of following credit facilities :-
a. PC
(Hypothecation) Rs. 10 lacs.
b. FBP Rs. 10 lacs.
c. LC Rs. 5 lacs.
The proposal for above Credit Facilities was recommended by accused No. 8, Inderjeet Rai Joshi, Accountant in Dena Bank and sanction was accorded by accused No. 7, R.G. Pareek on 27-08-1998.
1.3 While submitting the loan proposal, accused No. 1, Vivek Sood CBI Case No. 21/12 17-12-2014 3 of 81 CBI Vs. Vivek Sood & Ors.
dishonestly and fraudulently submitted the following documents :-
(i) Balance Sheet/Financial statement of the firm for the last 3 years purportedly audited and certified by M/s Goel & Jolly, Chartered Accountants, 4695, Dev Nagar, Karol Bagh, New Delhi.
(ii) Credit Report issued by IDBI Bank, New Delhi in favour of M/s Chanda Exports.
1.4 Investigation revealed that the balance sheets were forged and fabricated as no Chartered Accountants firm in the name of M/s Goel and Jolly, Chartered Accountants at 4695, Dev Nagar, Karol Bagh, New Delhi - 110005 was found in existence at the given address. The Institute of Chartered Accountants, New Delhi furnished the actual address of M/s Goel & Jolly as 501, Ambadeep Building, K.G. Marg, New Delhi. Sh. Vinay Goel, Prop. of M/s Goel and Jolly, having office at the said address, confirmed that M/s Goel & Jolly, Chartered Accountants had no business relations with M/s Chanda Exports and that they had never audited the Books of Accounts of the said concern. The credit report of IDBI submitted by Sh. Vivek Sood was in fact, not a credit information report but an ordinary certificate confirming that M/s Chanda Exports was having an account in the said Bank.
1.5 It was further revealed that accused No. 1, Vivek Sood deliberately did not disclose any information regarding his associate firms/companies and their borrowing arrangements with other Banks. Accused No. 7, R.G. Pareek and accused No. 8, Inderjeet Rai Joshi were CBI Case No. 21/12 17-12-2014 4 of 81 CBI Vs. Vivek Sood & Ors.
required to call for such information so as to be satisfied with credit worthiness of the borrower. During the same period, accused No. 1, Vivek Sood was the Promoter/Director of Swati Fine Jewellery Pvt. Ltd. which had already availed credit facilities to the tune of Rs. 125 lakhs from State Bank of Bikaner and Jaipur, Nehru Place Branch, New Delhi.
1.6 Further, accused No. 1, Vivek Sood dishonestly submitted Perpetual Lease Deed of property at B-4/122, Safdarjung Enclave, New Delhi, in the name of one Smt. Vimal Jyotsana which was a forged document. During investigation, Smt. Vimal Jyotsana, w/o late Col. S.C. Mittal, the real owner of the said property stated that the said property was acquired by her from DDA in the year 1968 for a sum of Rs. 39,000/- under an auction conducted by DDA. The perpetual Lease Deed in respect of the said property was registered in her name in the office of Sub-Registrar-III, Asaf Ali Road, Delhi. Since then, the said property has remained in her ownership. In August, 2000, in pursuance of an agreement for construction of multi-story flats on the aforesaid land, she handed over the possession of the said property to one M/s Nishtha Builders at M-6, Saket, New Delhi.
1.7 Investigation further revealed that the forged perpetual lease deed of aforesaid property and forged NOC from DDA for creation of equitable mortgage were dishonestly and fraudulently arranged by accused No. 3, Shafique-Ur-Rehman through accused No. 4, Kirpal Singh. They also arranged accused No. 6, Smt. Ramwati to impersonate as Mrs. Vimal Jyotsana. Accused No. 3, Shafique-Ur-Rehman dishonestly arranged a CBI Case No. 21/12 17-12-2014 5 of 81 CBI Vs. Vivek Sood & Ors.
photocopy of the lease deed in respect of property No. B-4/122, Safdarjung Enclave, New Delhi through his associate accused No. 5, Niranjan Vashisth. The aforesaid forged lease deed was dishonestly prepared by accused No. 5, Niranjan Vashisth who also forged the signatures of DDA Authorities. The signatures of Smt. Vimal Jyotsana, in Hindi, were forged by accused No. 6, Smt. Ramwati on the said forged lease deed. She also executed and signed bank documents as Vimal Jyotsana. GEQD's opinion also confirmed the writing/signature of the aforesaid accused persons on the forged Perpetual Lease Deed in respect of property No. B-4/122, Safdurjung Development Residential Scheme, New Delhi. The original and genuine lease deed contained signature of the owner in English. Accused No. 6, Smt. Ramwati had forged signature of the owner in Hindi.
1.8 It was also revealed that accused No. 7, R.G. Pareek and accused No. 8, Inderjeet Rai Joshi dishonestly accepted the fake and forged financial statement and credit worthiness of the purported guarantor Smt. Ramvati, without verifying the real worth and credentials of the guarantor. They also, in violation of bank norms, handed over letter dated 22-08-1998 to accused No. 1, Vivek Sood for arranging NOC from DDA for creation of equitable mortgage of the said property. Accused No. 1, Vivek Sood submitted a forged NOC of DDA within two days i.e. on 24-08-1998. In November, 1998, Dena Bank wrote a letter to DDA for noting Bank's lien on the said property in the record of DDA. In response to this letter, the officials of DDA submitted their reply in Feb. 99 in which they questioned the genuineness of NOC dated 24-08-1998. In spite of this, accused No. 7, R.G. CBI Case No. 21/12 17-12-2014 6 of 81 CBI Vs. Vivek Sood & Ors.
Pareek and accused No. 8, I R Joshi failed to take any action for realisation of the loan amount from M/s Chanda Exports.
1.9 Further, before release of the loan amount, accused No. 7, R.G. Pareek and accused No. 8, I R Joshi were required to take on record a " Search Report" of property through a panel Lawyer of Dena Bank. They dishonestly accepted the Search Report of Sh. Arvind Sinha, Advocate in spite of the fact that they had never written to the said Advocate to give such Report. Sh. Arvind Sinha was approached by one unconnected person namely Shri Ravinder Malik who had shown him the original lease deed of property No. B-4/122 Safdarjung Enclave, New Delhi which looked like a genuine lease deed. The said Sh. Ravinder Malik gave him an impression that only encumbrance part of property was required to be verified. Sh. Arvind Sinha accordingly gave his search report on the basis of the aforesaid lease deed produced by Ravinder Malik without verifying the original records available with the office of Sub-Registrar. Sh. Ravinder Malik also paid him Rs. 2,200/- as professional charges.
1.10 During the course of internal Bank Enquiry, Sh. Randhir Kalia, the then Manager of Dena Bank requested Sh. Manjeet Singh Saluja, a panel lawyer of Dena Bank to give a Search Report in respect of the aforesaid property. Sh. Manjeet Singh Saluja vide his report dated 03-05-2000 confirmed that in the original record of Sub-Registrar, the said lease deed was registered vide document No. 5088, Vol No. 2028 on 17-08-1968. However, in the search report dated 19-08-1998 of Sh. Arvind Sinha, it was mentioned that CBI Case No. 21/12 17-12-2014 7 of 81 CBI Vs. Vivek Sood & Ors.
the said document was registered vide document No. 5888, Vol. No. 202 dated 17-08-1968. Thus, the search report of Sh. Arvind Sinha, Advocate was incorrect.
1.11 Investigation also revealed that accused No. 7, R.G. Pareek and accused No. 8, Inderjeet Rai Joshi failed to obtain proper Valuation Report of the aforesaid property. Property Valuation was got done through the borrower against the Bank's norms. The valuation report of property was given by Sh. V.P. Aneja, Govt. Approved Valuer who had valued the property at Rs. 93 lakh. In this case also Ravinder Malik had handed over a copy of the perpetual lease deed to Sh. V.P. Aneja on behalf of the borrower for carrying out the valuation. Accused No. 7, R.G. Pareek and accused No. 8, Inderjeet Rai Joshi, by abusing their official position as Public Servants, dishonestly accepted the Valuation Report fully knowing that the matter was not referred to the said valuer by the Bank. Accused No. 7, R.G. Pareek and accused No. 8, Inderjeet Rai Joshi did not adhere to the established norms of the bank and thereby accepted a forged financial statement/balance sheet and irrelevant credit report from IDBI Bank, to give pecuniary advantage to other accused persons. They sanctioned and released the limits to M/s Chanda Exports without conducting pre-sanction and post-sanction inspection of the account and they also failed to obtain stock statement from the borrower.
1.12 Accused No. 7, R.G. Pareek and accused No. 8, Inderjeet Rai Joshi kept on releasing the loan amount in spite of various defaults committed by M/s Chanda Exports, with the result that the Bank failed to realise the CBI Case No. 21/12 17-12-2014 8 of 81 CBI Vs. Vivek Sood & Ors.
following amounts from M/s Chanda Exports :-
a) Rs. 9.17 lakh under PC as against sanctioned limit of Rs. 10 lakh.
b) Rs. 9.37 lakh under FBD limit as against sanctioned limit of Rs. 10 lakh, vide two bills drawn on M/s Itinerant Jewellery Pvt. Ltd., Singapore which remains unpaid.
c) Rs. 21,000/- as Temporary overdraft. 1.13 On 16-07-1999, an amount of Rs. 4,20,000/- was unlawfully
transferred from account of M/s Chanda Exports to a fictitious Account of S.K.V. Exports and Trading Pvt. Ltd. at UCO Bank, Defence Colony branch, New Delhi, which was immediately withdrawn in cash by accused No. 2, Nandita Bakshi, a near relation of accused No. 1, Vivek Sood and Director in the fictitious company S.K.V. Exports and Trading Pvt. Ltd. Part of the loan amount was siphoned off through the account of this company. S.K.V. Exports and Trading Pvt. Ltd. was not existing at the given address and was not carrying genuine trade transactions. The address of the said company was shown as F-13/203, Laxmi Nagar, Delhi-92. However, no such company ever existed on the said address. The pay order for an amount of Rs. 4,20,000/-
was deposited in account No. 4369 of SKV Exports and Trading Pvt. Ltd. which was opened on 12-08-1998 in UCO bank, Defence Colony, New Delhi and immediately withdrawn in cash by accused No. 2, Nandita Bakshi.
1.14 Accused No. 3, Shafique-Ur-Rehman was dealing in property business at F-17, Nizamuddin West, New Delhi. He procured a fake guarantor in respect of property No. B-4/122, Safdarjung Development Residential CBI Case No. 21/12 17-12-2014 9 of 81 CBI Vs. Vivek Sood & Ors.
Scheme, New Delhi. He received payment of Rs. 3,13,897/- through cheque No. 297455 of Citi Bank Delhi from the account of accused No. 2, Nandita Bakshi and another payment of Rs. 1,74,000/- from the account of M/s Kamayani Fine Jewellery of accused No. 2, Nandita Bakshi. Accused No. 4, Kirpal Singh was working for accused No. 3, Shafique-Ur-Rehman for obtaining photocopies of land documents for committing forgeries. He was instrumental in arranging accused No. 6, Ramwati to impersonate and sign as Vimal Jyotsana, on Bank documents.
1.15 Accused No. 1, Vivek Sood carried out all operations pertaining to the above account. Accused No. 2, Nandita Bakshi has been instrumental in liasioning with accused No. 3, Shafique-Ur-Rehman for procurement of the forged documents and the impersonator accused No. 6, Ramwati. For this, she paid Rs. 4,87,897/- to him. She was also instrumental in siphoning off the loan amount through fictitious account of SKV Exports and Trading Pvt. Ltd. She is also one of the Directors of M/s Itinerant Jewellers of Singapore which was the ultimate beneficiary of the exported jewelleries and failed to repatriate the proceeds of the export bills.
1.16 The sanction for prosecution of accused No. 7, R.G. Pareek U/s 19 of the Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act) was obtained. On conclusion of investigation, a charge sheet U/s 120 B r/w sections 419, 420, 467, 468 & 471 of IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act and substantive offences thereunder, was filed against the above named accused persons.
CBI Case No. 21/12 17-12-2014 10 of 81 CBI Vs. Vivek Sood & Ors. 2.1 Cognizance was taken and accused persons were summoned.
On their appearance, copies in terms of Section 207 Cr.P.C. were supplied to the accused persons.
Charges 3.1 On 16-08-2003, my Ld. Predecessor framed charges against the accused persons as under :-
a) against all the accused persons, u/s 120-B r/w sections 419, 420, 467 and 471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act,
b) against accused No. 7, R.G. Pareek and accused No. 8, Inderjeet Rai Joshi u/s 13 (2) r/w section 13 (1) (d) of the PC Act,
c) against accused No. 1, Vivek Sood under sections 420 and 471 IPC,
d) against accused No. 6, Ramwati under sections 419, 467, 471 and 420 IPC.
The accused persons pleaded not guilty to the charges and claimed trial.
3.2 It is pertinent to mention that accused No. 8, Inderjeet Rai Joshi absconded during trial. Thus, he was declared proclaimed offender vide order dated 05-07-2008.
Prosecution Evidence 4.1 Prosecution has examined 27 witnesses. Six witnesses are from Dena Bank namely PW 6 Sh. Ajit Prashad Jain, Clerk, Dena Bank Chhatarpur CBI Case No. 21/12 17-12-2014 11 of 81 CBI Vs. Vivek Sood & Ors.
Branch, New Delhi, PW 12 Sh. Rajesh Saigal, Officer, Dena Bank, Chhatarpur Branch, New Delhi, PW 15, Sh. Janak Kochhar, Officer, Dena Bank, Chhatarpur Branch, New Delhi, PW 17 Sh. K.N. Shenoy, Deputy General Manager (Personnel & Human Resources), Dena Bank, Mumbai, PW 24 Sh. R. Sridharan, Reginal Manager, Dena Bank, Delhi Region and PW 27 Sh. Harish Kumar Bhalla, Manager, Dena Bank, Chhatarpur Branch, New Delhi.
4.2 Six witnesses are from Government Offices/other banks namely PW 3 Sh. L.K. Bansal, Manager, Punjab National Bank, Nizamuddin Branch, New Delhi, PW 10 Sh. K.N. Mishra Gopal, Chief Manager, State Bank of Bikaner & Jaipur, Nehru Place, New Delhi, PW 22 Sh. J.P. Arora Chief Manager, UCO Bank, Defence Colony Branch, New Delhi, PW 8 Sh. Gyan Chand Chopra, Clerk, Office of Sub Registrar, Asaf Ali Road, New Delhi, PW 11 Sh. Shiv Charan Gupta, Assistant, Lease Administration Branch, DDA and PW 23 Sh. R.L. Madan, Deputy Director, Lease Administration Branch, DDA.
4.3 PW 1 Sh. Sanjay Malik and PW 2 Sh. Vinay Goel are Chartered Accountants, PW 4 Sh. Anuj Kumar Beotra and PW 5 Sh. V.P. Aneja, are Valuers, PW 9 Sh. Arvind Sinha is an Advocate and PW 13 Sh. Manjeet Singh is Panel Lawyer of Dena Bank.
4.4 Other six witnesses are PW 7 Sh. Joginder Malik, Manager, M/s Nishtha Builders, PW 16 Sh. Madan Lal Khanna of Banarsi Das & Sons, PW 19 Mrs. Vimal Jyotsana, PW 20 Sh. Gyanender Mishra, PW 21 Sh. Arvind Mishra and PW 26 Sh. Babu Lal.
CBI Case No. 21/12 17-12-2014 12 of 81 CBI Vs. Vivek Sood & Ors. 4.5 PW 14 Insp. S.P. Singh was involved in the investigation, PW 18
Dr. Ravinder Sharma is GEQD and PW 25 Sh. A.K. Singh is the IO.
Statement of Accused Persons 5.1 Statements of all the accused persons were recorded u/s 313 Cr.P.C., wherein they generally denied the incriminating evidence and stated that they had been falsely implicated in this case.
5.2 Accused No. 1, Vivek Sood, inter-alia, stated that a false case has been registered against him. He obtained the loan facilities as per the banking procedure and repaid the entire loan to the bank. It is purely a civil transaction. He obtained the loan to do the business as mentioned in his loan application and the bank made more money in the form of interest and cross currency fluctuation of the dollar. The Investigating Officer conducted this investigation with utter bias and vindictiveness.
5.3 Accused No. 2, Nandita Bakshi stated that a false case has been registered. The investigation is baseless and bereft of any knowledge of banking rules, business practices and financial statutes. CBI has a knack of converting simple businesses into sinister conspiracies and fabricate evidence which it finds difficult to prove during the course of the trial. She further stated that the loan stood repaid way back in 2006 and she has already been discharged as a guarantor.
CBI Case No. 21/12 17-12-2014 13 of 81 CBI Vs. Vivek Sood & Ors. 5.4 Accused No. 3, Shafique-Ur-Rehman, inter-alia, stated that on
21-08-2001, he has moved an application before the Ld. CMM, Tis Hazari Courts, Delhi against CBI Officers namely Sh. S.S. Yadav and Sh. Devender Singh as they were harassing him and his family members at odd hours and abusing them. They were pressurizing him to become a State witness but he refused. On the directions of the Court, they appeared before the Court. The application was disposed off with certain directions. The CBI Officers threatened to falsely implicate him in one case after every two months. Dy. SP, Sh. Devender Singh said that he was the first person in the history of CBI who had dared to file an application against CBI Officers. Due to this reason, he has been falsely implicated in this case. He further stated that he is innocent.
5.5 Accused No. 4, Kirpal Singh further stated that he has been falsely implicated by the CBI in this case. He has nothing to do with this case.
5.6 Accused No. 5, Niranjan Vasishtha, inter-alia, stated that he was arrested in the case of M/s Swati Fine Jewellery. However, no evidence was found against him and, therefore, he was not named in the chargesheet but he has been made an accused in this false case. He remained in judicial custody in the said case for more than three months. Thereafter, he was released on bail u/s 167 (2) Cr.P.C., as CBI failed to file chargesheet within 90 days. CBI filed chargesheet in the said case after a period of one year. But, he was not made an accused in the said chargesheet. However, in the present case, CBI Case No. 21/12 17-12-2014 14 of 81 CBI Vs. Vivek Sood & Ors.
where he was not even named in the FIR, and was also not arrested, he was made an accused in the chargesheet. CBI has investigated the case in a biased manner and has not followed the due procedure.
5.7 Accused No. 6, Ramwati, inter-alia, stated that she has been falsely implicated. She has no concern with this case.
5.8 Accused No. 7, Ram Gopal Pareek, inter-alia, stated that a false case was registered against him. He has been an honest bank Officer all through his career and has always adhered to the established bank norms and regulations. He has been falsely and improperly implicated in this case and the chargesheet was filed against him in order to strengthen the prosecution case against the other accused. He has sincerely adhered to the norms/guidelines/ instructions in the present case and in every other case of the bank. The investigating agency did not investigate the case properly and without cross-checking the rules and regulations of Dena Bank's Manual of Instructions and the Guidelines issued by RBI in its Export Financing Scheme, filed the chargesheet. He is innocent and has done no crime.
Defence evidence 6.1 None of the accused has led any evidence in his/her defence.
Arguments on behalf of CBI CBI Case No. 21/12 17-12-2014 15 of 81 CBI Vs. Vivek Sood & Ors. 7.1 Sh. U.S. Prasad, Ld. Special P.P. has argued that prosecution
has been able to prove its case beyond a reasonable doubt. It is not in dispute that M/s Chanda Exports, whose proprietor is accused No. 1, Vivek Sood has opened Current Account No. 903 in Dena Bank Chhattarpur Branch and has obtained credit facilities i.e. PC (Hyp) of Rs. 10 lacs, FBP of Rs. 10 lacs and local LC of Rs. 5 lacs, inter-alia, on the basis of Lease Deed, Ex.PW6/12, Certificate Mark PW2/A of Goel & Jolly, NOC dated 24-08-1998, Mark PW 11/B of DDA and other documents executed by the purported guarantor Mrs. Vimal Jyotsana. He further contends that from the evidence of PW 19 Mrs. Vimal Jyotsana, PW 11, Sh. Shiv Charan Gupta, PW 8 Sh. Gyan Chand Chopra, PW 7 Sh. Joginder Malik and PW 13 Sh. Manjeet Singh, it is proved that the lease deed, Ex.PW6/12 and various other documents executed on behalf of guarantor Mrs. Vimal Jyotsana are forged. He also contends that PW 2 Sh. Vinay Kumar Goel has proved that the balance sheets, Mark PW 2/A purportedly certified by Goel & Jolly are forged. Similarly, PW 11 Sh. Shiv Charan Gupta, PW 23 Sh. R.L. Madan, PW 24 Sh. R. Sridharan and PW 25 Sh. Ajeet Kumar Singh have proved that the NOC dated 24-08-1998, Mark PW 11/B is forged.
7.2 Ld. Special P.P. also contends that the opinion, Ex. PW18/Q of PW 18 Dr. Ravinder Sharma regarding signature/ handwriting of accused No. 5, Niranjan Visishtha and accused No. 6, Ramwati prove that the said accused persons were party to conspiracy. He also contends that accused No. 7, Ram Gopal Pareek has sanctioned the credit facilities without any verification regarding creditworthiness of the borrower. He has also verified CBI Case No. 21/12 17-12-2014 16 of 81 CBI Vs. Vivek Sood & Ors.
assets and liabilities, Ex.PW6/8 of purported guarantor Mrs. Vimal Jyotsana which shows that he was a party to the conspiracy. He also obtained valuation report of the property, which was got done by the party himself, without the matter being referred to the valuer by the bank. The loan was sanctioned by accused No. 7, Ram Gopal Pareek in a hurried manner on the same day on which the application for loan was submitted by accused No. 1, Vivek Sood. Ld. Special P.P. also argued that accused No. 2, Nandita Bakshi has opened account in the name of SKV Exports to siphon off the money. He finally submits that besides direct evidence, the circumstancial evidence brought on record, prove that all the accused persons have conspired to cheat Dena Bank, Chhattarpur Branch, New Delhi and have caused wrongful loss to the said bank. Ld. Special P.P. has relied upon Ajay Aggarwal Vs. Union of India, 1993 (3) SCC 609, State of Maharashtra Vs. Som Nath Thapa, 1996 (4) SCC 659, E.K. Chadrasenan Vs. State of Kerala, 1995 (2) SCC 99, Firozuddin Bashirudin and Others Vs. State of Kerala, 2001 (7) SCC 576, CBI Vs. Ravi Shankar Prasad, 2009 Cri. L.J. SC 3437, Sushil Suri Vs. CBI, 2011 (5) SCC 708, State of U.P. Vs. Krishna Master and others, AIR 2010 SC 3071, Kesho Ram Bora Vs. State of Assam, AIR 1978 SC 1096, Bank of India Vs. Yeturi Marandi Shankar Rao, AIR 1987 SC 821, Kirender Sarkar Vs. State of Assam, AIR 2009 SC 2513, Siddharth Vashisth @ Manu Sharma Vs. State of NCT of Delhi, 2010 (2) AD Crl. (SC) 645 and Jaipal Vs. State, 2011, Cr.LJ 4444 Delhi.
Arguments on behalf of Accused No. 1, Vivek Sood and accused No. 2, Nandita Bakshi CBI Case No. 21/12 17-12-2014 17 of 81 CBI Vs. Vivek Sood & Ors.
8.1 Sh. P.B.A. Srinivasan, Ld. Counsel for accused No. 1, Vivek Sood and accused No. 2, Nandita Bakshi has argued that Ms. S. Sundari Nanda, author of FIR, Ex.PW 25/A has not been examined and no opportunity was given to the accused persons to cross- examine the said witness. Thus, the FIR cannot be said to have been proved. It is also contended that as per prosecution, the lease deed, Ex. PW 6/12 is forged. However, the prosecution has not produced the actual original lease deed of the property in question. According to PW 19, Mrs. Vimal Jyotsana, she has handed over the original lease deed to the builder. However, according to PW 7, Sh. Joginder Malik, the original documents were not given to them. Certified copy of registered sale deed is a public document but the original sale deed is not a public document. The prosecution was required to prove that the entire document i.e. Ex.PW6/12 was forged. However, they have failed to do so. Ld. counsel also argued that the evidence of PW 2 Sh. Vinay Kumar Goel is not reliable since as per him, the firm M/s Goel & Jolly was dissolved but he is still using the letterhead of Goel & Jolly. During his cross- examination, PW 2 Sh. Vinay Kumar Goel has also stated that in one or two matters, his partner Mr. Jolly might have taken work of banking loans.
8.2 He further submitted that there is a confusion regarding file No. from which, permission to mortgage the property in question was issued and thus, it cannot be said that the letter, Mark PW 11/B (also marked Ex.PW11/DA) is forged. It is also argued that Sh. Ravinder Malik who approached Sh. Arvind Sinha, Advocate and showed the original lease deed CBI Case No. 21/12 17-12-2014 18 of 81 CBI Vs. Vivek Sood & Ors.
has neither been made an accused nor a prosecution witness which shows that there was nothing wrong in the lease deed submitted at the time of taking loan. It is also contented that as per PW 11 Sh. Shiv Charan Gupta, Mark PW 11/B is signed by Sh. M.L. Madan. However, no person named Sh. M.L. Madan has been examined by the prosecution.
8.3 Ld. Counsel further argued that the valuation report, Ex.PW4/2 has been sent to Branch Manager, Dena Bank vide letter, Ex.PW4/1 and is stated to have been given at the owner's request and the account mentioned is M/s Chanda Exports. Thus, the said valuation is not a general valuation. Once, a proper valuation has been done, accused No. 1, Vivek Sood cannot be blamed for anything wrong which is discovered later on with respect to the title deed of the property in question. Since, valuation report and search report have been obtained before sanction of loan, there was no intention to cheat. Ld. counsel further argued that PW 6 Sh. Ajit Prashad Jain had not identified accused No. 6, Ramwati as the person who executed documents of guarantor Mrs. Vimal Jyotsana. With regard to accused No. 2, Nandita Bakshi, Sh. P.B.A. Srinivasan submitted that there are two Directors of SKV Exports and Trading Pvt. Ltd. namely accused No. 2, Nandita Bakshi and Sh. Vijay Jha. He contends that if the only incriminating evidence against accused No. 2, Nandita Bakshi is her being Director in the said company, then Sh. Vijay Jha should also have been an accused in this case. Further, the report of PW 14 Insp. S.P. Singh is not reliable since he has gone to verify the existence of SKV Exports in the year 2001 whereas, the incident pertains to the year 1998. Thus, it cannot be said that SKV Exports did not exist at its CBI Case No. 21/12 17-12-2014 19 of 81 CBI Vs. Vivek Sood & Ors.
given address in the year 1998. He further submits that the entire outstanding amount has been paid by accused No. 1, Vivek Sood as per the compromise arrived at in DRT. There is no evidence of cheating or conspiracy and thus, the accused persons are entitled to acquittal.
8.4 Ld. counsel has also relied upon Cogent Ventures (India) Ltd Vs. Raj Karan (through Lrs), (ARB.P.335/2006 & A.A. Nos. 7818, 11180/2006, 3692-3693, 6512/2009,7301 & 16738/2011, decided on 08-02-2012), Syed Samsudeen Vs. State (Crl.R.C. No. 1130 of 2009 decided on 13-09-2012), Basrur Venkata Row Vs. Unknown, 14 Ind Cas 418, Smt. Rekha Rana and Ors. Vs. Smt Ratnashree Jain, AIR 2006 MP 107, Dr. Vimla Vs. Delhi Administration, 1963 AIR 1572, Ishwari Prasad Mishra Vs. Mohhammad Isa, AIR 1963 SC 1728, Bhonu Lal Chaoudhary Vs. Mr. W.A. Vincent and Ors, 65 Ind Cas 882, Madhavlal Manishanker Trivedi Vs. State of Madhya Pradesh, AIR 1960 MP 269, Peary Lal and Ors. Vs. Emperor, 75 Ind Cas 148, Haider Ali Pradhania and Anr. Vs. Emperor, 18 Ind Cas 881, Roman Catholic Mission Vs. State of Madras, AIR 1966 SC 1457, Sri Lakni Baruan and Ors. Vs. Sri Padma Kalita & Ors, AIR 1253 JT 1996 (3) 268, Abdul Kareem Madar Sahab Vs. State of Mysore, AIR 1979 SC 1506, Manilal Vs. State of Kerala, 1998 Cri.L.J. 3785, Rabindra Kumar Dev Vs. State of Orissa, 1977 AIR 170, Suresh Vs. State of Maharashtra, 2003 (4) Mhlj 898, Ishari Singh Vs. State of Rajasthan and Anr., 1997 Cri LJ 2222 and National Insurance Company Limited Vs. K. Yadamma and Ors., 2005 (3) ALD 643.
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Arguments on behalf of Accused No. 3, Shafique-Ur-Rehman 8.5 Sh. Islam Khan, Ld. counsel for accused No. 3, Shafique-Ur- Rehman argued that the only charge against accused No. 3, Shafique-Ur- Rehman is of conspiracy. There is no substantive charge against him. He contends that there is no oral or documentary evidence against accused No. 3, Shafique-Ur-Rehman. The FIR has not been proved as its author Ms. S. Sundari Nanda was not examined and PW 25 Sh. A.K. Singh did not state that he has seen Ms. S. Sundari Nanda signing or writing. Further PW 4, Sh. Anuj Kumar Beotra and PW 5 Sh. V.P. Aneja have deposed that they had done valuation of the property in question at the request of one Sh. Ravinder Malik. He further argues that accused No. 3, Shafique-Ur-Rehman has received money from Kamayani Jewellery and Balaji Exports in November 1997, whereas, the account in this case was opened on 25-07-1998. Thus, conspiracy if any, started in July 1998 and he cannot be held to be a part of the said conspiracy. Ld. counsel thus, argues that chargesheet has been filed against accused No. 3, Shafique-Ur-Rehman without any material or basis. He has also relied upon T.T. Anthony Vs. State of Kerala & Others, (2001) 6SCC 181 to argue that two FIRs on the same facts cannot be registered. However, in the present case, four FIRs were registered on the same facts.
Arguments on behalf of Accused No. 4, Kirpal Singh 8.6 Sh. Mayank Sharma, Ld. counsel from DLSA for accused No. 4, Kirpal Singh has argued that the only witness cited against accused No. 4, CBI Case No. 21/12 17-12-2014 21 of 81 CBI Vs. Vivek Sood & Ors.
Kirpal Singh is PW 26 Sh. Babu Lal who has turned hostile. He has denied all the suggestions given by Ld. Special P.P. to incriminate accused No. 4, Kirpal Singh. Thus, there is no incriminating evidence whatsoever, against accused No. 4, Kirpal Singh and he is entitled to acquittal.
Arguments on behalf of Accused No. 5, Niranjan Vasishtha 8.7 Sh. B.S. Biloria, Ld. counsel for accused No. 5, Niranjan Vasishtha has argued that accused No. 5, Niranjan Vasishtha was arrested in FIR bearing RC No. 3/2000. However, no evidence was found against him in the said case and thus, he was not chargesheeted. In the present case, he was neither named in the FIR nor he was arrested. He was also not taken on remand. Thus, the purported specimen signatures of accused No. 5, Niranjan Vasishtha are not admissible in evidence and opinion of PW 18 Dr. Ravinder Sharma cannot be relied upon. He also argued that even PW 6 Sh. Babu lal has not identified accused No. 5, Niranjan Vasishtha. Therefore, there is no incriminating material against him. Ld. counsel also argued that in the present case, on the same facts, four FIRs were registered, which is not permissible as per laid down in T.T. Anthony Vs. State of Kerala & Others (supra). He thus, prays that accused No. 5, Niranjan Vasishtha be acquitted. Ld. counsel has also relied upon Keshav Dutt Vs. State of Haryana, (Crl. Appeal No. 1560 of 2010 in SLP (Crl) No. 2742 of 2010 decided on 19-08-2010 by Hon'ble Supreme Court), Rishi Dev Vs. State (Delhi Admn.), (Crl. A. NO. 757 of 2000 & Crl. M (B) A. No. 799/2007 decided on 01-05-2008 by Hon'ble High Court of Delhi), Sapan Haldar & Anr. Vs. State, 191 (2012), CBI Case No. 21/12 17-12-2014 22 of 81 CBI Vs. Vivek Sood & Ors.
DLT 225 (FB), N. Mani Vs. State of Deputy Supeprintendent of Police, [(Crl. R.C. No. 530 of 2005) decided by Hon'ble Madras High Court on 26-07-2011] and Sh. Navendra Kumar Vs. Union of India & Another, [W.P. (C) No. 6877 of 2005, decided by Hon'ble High Court of Guwahati on 06-11-2013].
Arguments on behalf of Accused No. 6, Ramwati 8.8 Ms. Kirandeep kaur, Ld. counsel for accused No. 6, Ramwati has argued that there is no evidence against the said accused. PW 26 Sh. Babu Lal only stated that he knew accused No. 6, Ramwati. Further, the evidence of PW 18 Dr. Ravinder Sharma, GEQD regarding the guarantee documents bearing signatures of accused No. 6, Ramwati cannot be relied upon since evidence of handwriting expert is a weak evidence and conviction cannot be based upon the same in the absence of any corroboration. She contends that accused No. 6, Ramwati has been falsely implicated.
Arguments on behalf of Accused No. 7, Ram Gopal Pareek 8.9 Ms. Manisha Bhandari, Ld. counsel for accused No. 7, Ram Gopal Pareek has argued that accused No. 7, Ram Gopal Pareek has followed all the prescribed norms of the bank in sanctioning the loan amount on the recommendation of accused No. 8, Inderjeet Rai Joshi. As per the Banking Manual, collateral security was not needed in the instant case.
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Further, valuation report is to be obtained from an approved valuer and it is not prescribed that bank should write to the valuer. She also argued that as per PW 6 Sh. Ajit Prashad Jain, stocks and the books were primary security whereas collateral security was secondary and sufficient stocks were there at the time of sanction of loan. It is further argued that no person apart from the borrower visited the bank. Complete paper work was done but complete documents are not available in the record. It is also argued that it was not mandatory for the bank to write to the Advocate. As per the bank guidelines, the loan had to be sanctioned within 45 days of the submission of application for loan. The vigilance of accused No. 7, Ram Gopal Pareek is revealed from the fact that he had written to DDA on 16-11-1998 vide letter, Ex.PW24/DA. However, the reply, dated 17-02-1999, Ex.PW11/B was received after transfer of accused No. 7, Ram Gopal Pareek on 07-01-1999. Accused No. 7, Ram Gopal Pareek has adhered to all the guidelines concerning Packing Credit Advances. It is also argued that there is no evidence of accused No. 7, Ram Gopal Pareek having entered into any conspiracy. He has not derived any benefit from the transaction. During the tenure of accused No. 7, Ram Gopal Pareek, payments were received regularly by the bank. No bank officer stated about violation of any banking norms. Finally, it is argued that there is no doubt regarding the search report given by the Advocate and valuation report given by the valuer otherwise, they would have been an accused. Therefore, no criminal liability can be fastened upon accused No. 7, Ram Gopal Pareek and he is entitled to acquittal.
8.10 The general propositions of law laid down in the judgments cited CBI Case No. 21/12 17-12-2014 24 of 81 CBI Vs. Vivek Sood & Ors. by the parties have not been disputed. Points for Determination 9.1 I have heard all the parties and have also perused the record. In
the instant case, the following points are required to be determined:-
A. Charge u/s 120-B r/w sections 419, 420, 467 and 471 IPC & section 13 (2) r/w section 13 (1) (d) of the PC Act against all the accused persons namely accused No. 1, Vivek Sood, accused No. 2, Nandita Bakshi, accused No. 3, Shafique-Ur-Rehman, accused No. 4, Kirpal Singh, accused No. 5, Niranjan Vasishtha, accused No. 6, Ramwati and accused No. 7, Ram Gopal Pareek.
(i) Whether during the period May 1998 to November 1998, at New Delhi, all the accused persons namely accused No. 1, Vivek Sood, accused No. 2, Nandita Bakshi, accused No. 3, Shafique-Ur-Rehman, accused No. 4, Kirpal Singh, accused No. 5, Niranjan Vasishtha, accused No. 6, Ramwati and accused No. 7, Ram Gopal Pareek entered into an agreement?
(ii) If so, whether they had agreed to cheat Dena Bank, Chhatarpur Branch, New Delhi by deceiving and dishonestly/ fraudulently inducing it to sanction various credit facilities i.e. PC (Hyp) of Rs. 10 lacs, FBP of Rs. 10 lacs and local LC of Rs. 5 lacs in favour of M/s Chanda Exports, a Proprietorship concern of accused No. 1, Vivek Sood on the basis of misrepresentation, forged/bogus/false documents, including valuable security, and by using as genuine such documents and by commission of criminal misconduct by public servant i.e. accused No. 7, Ram Gopal Pareek.
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(iii) If so, whether in pursuance of the said agreement, accused No.1, Vivek Sood obtained various credit facilities i.e. PC (Hyp) of Rs. 10 lacs, FBP of Rs.
10 lacs and local LC of Rs. 5 lacs in favour of M/s Chanda Exports, a Proprietorship concern of accused No. 1, Vivek Sood on the basis of forged/false documents including valuable security i.e. Lease deed, Ex.PW6/12 of property No. B-4/122, Safdurjang Enclave, New Delhi, various documents signed by accused No. 6, Ramwati as Mrs. Vimal Jyotsana, owner of property No. B-4/122, Safdarjung Enclave, New Delhi, NOC dated 24-08-1998, Mark PW11/B of DDA in respect of the above property, copy of Form 3CB and Form 3CD, Mark PW2/A of Goel & Jolly, Chartered Accountants and using the aforesaid documents as genuine, knowing or having reason to believe the same to be forged documents and accused No. 6, Ramwati impersonating as Smt. Vimal Jyotsana, and accused No. 7, Ram Gopal Pareek being a public servant abusing his position as a public servant to obtain pecuniary advantage for accused No. 1, Vivek Sood, Proprietor of M/s Chanda Exports.
B. Charge u/s 13 (2) r/w section 13 (1) (d) of the PC Act against accused No. 7, Ram Gopal Pareek.
(i) Whether during the period May 1998 to November 1998 at New Delhi, accused No. 7, Ram Gopal Pareek was a public servant i.e. Senior Manager of Dena Bank, Chhatarpur Branch, New Delhi?
(ii) If so, whether during the above period at New Delhi, accused No. 7, Ram Gopal Pareek obtained various credit facilities i.e. PC (Hyp) of Rs. 10 lacs, CBI Case No. 21/12 17-12-2014 26 of 81 CBI Vs. Vivek Sood & Ors.
FBP of Rs. 10 lacs and local LC of Rs. 5 lacs in favour of M/s Chanda Exports, a Proprietorship concern of accused No. 1, Vivek Sood and caused loss of Rs. 18,75,000/- to Dena Bank, Chhatarpur Branch, New Delhi by sanctioning the loan proposal on the basis of false/forged/bogus documents and misrepresentation ?
(iii) If so, whether accused No. 7, Ram Gopal Pareek did as above by use of illegal means and/or abuse of his official position?
C. Charge u/s 420 IPC against accused No. 1, Vivek Sood.
(i) Whether during the period May 1998 to November 1998, at New Delhi, accused No. 1, Vivek Sood deceived Dena Bank, Chhatarpur Branch, New Delhi?
(ii) If so, whether the aforesaid accused had induced Dena Bank, Chhatarpur Branch, New Delhi to sanction various credit facilities i.e. PC (Hyp) of Rs. 10 lacs, FBP of Rs. 10 lacs and local LC of Rs. 5 lacs in favour of M/s Chanda Exports, a Proprietorship concern of accused No. 1, Vivek Sood, on the basis of false/bogus/forged documents and by misrepresenting that accused No. 6, Ramwati was Mrs. Vimal Jyotsana, owner of property No. B-4/122, Safdurjang Enclave, New Delhi?
(iii) If so, whether the abovenamed accused had induced Dena Bank, Chhatarpur Branch, New Delhi as above dishonestly/Fraudulently?
(iv) If so, whether the aforesaid amount was credited in account of M/s Chanda Exports?
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D. Charge u/s 471 IPC against accused No. 1, Vivek Sood.
(i) Whether during the period May 1998 to November 1998, at New Delhi, accused No. 1, Vivek Sood used false/forged/bogus documents i.e. lease deed, Ex.PW 6/12, in respect of property No. B-4/122, Safdurjang Enclave, New Delhi, NOC dated 24-08-1998, Mark PW 11/B of DDA, in respect of the above property, various loan documents executed by accused No. 6, Ramwati as Smt. Vimal Jyotsana, owner of the above property and Form 3 CB and 3 CD, Mark PW 2/A purportedly of M/s Goel & Jolly, Chartered Accountants, in respect of M/s Chanda Exports, as genuine for inducing Dena Bank, Chhatarpur Branch, New Delhi to sanction various credit facilities i.e. PC (Hyp) of Rs. 10 lacs, FBP of Rs. 10 lacs and local LC of Rs. 5 lacs in favour of M/s Chanda Exports, a Proprietorship concern of accused No. 1, Vivek Sood?
(ii) If so, whether the above named accused used the aforesaid documents as genuine knowing or having reason to believe the same to be forged?
(iii) If so, whether the above named accused did so fraudulently or dishonestly?
E. Charge u/s 419 IPC against accused No. 6, Ramwati.
(i) Whether during the period May 1998 to November 1998, at New Delhi, accused No. 6, Ramwati impersonated as Smt. Vimal Jyotsana, owner of property No. B-4/122, Safdurjang Enclave, New Delhi before Dena Bank, Chhatarpur Branch, New Delhi?
(ii) If so, whether by such impersonation, she cheated Dena Bank, Chhatarpur CBI Case No. 21/12 17-12-2014 28 of 81 CBI Vs. Vivek Sood & Ors.
Branch, New Delhi?
F. Charge u/s 467 IPC against accused No. 6, Ramwati.
(i) Whether during the period May 1998 to November 1998, at New Delhi, accused No. 6, Ramwati forged various documents i.e. lease deed, Ex. PW6/12 in respect of property No. B-4/122, Safdarjung Enclave, New Delhi and other guarantee documents, as aforesaid, submitted to Dena Bank by executing the same as Smt. Vimal Jyotsana, owner of property No. B-4/122, Safdurjang Enclave, New Delhi?
(ii) If so, whether any such document was a valuable security?
G. Charge u/s 471 IPC against accused No. 6, Ramwati.
(i) Whether during the period May 1998 to November 1998, at New Delhi, accused No. 6, Ramwati used the aforesaid forged documents / valuable securities by submitting them to Dena Bank, Chhatarpur Branch, New Delhi for inducing the said bank to sanction various credit facilities i.e. PC (Hyp) of Rs. 10 lacs, FBP of Rs. 10 lacs and local LC of Rs. 5 lacs in favour of M/s Chanda Exports, a Proprietorship concern of accused No. 1, Vivek Sood?
(ii) If so, whether she used the aforesaid documents as genuine knowing or having reason to believe the same to be forged?
(iii) If so, whether she did so fraudulently or dishonestly?
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H. Charge u/s 420 IPC against accused No. 6, Ramwati.
(i) Whether during the period May 1998 to November 1998 at New Delhi, accused No. 6, Ramwati deceived Dena Bank, Chhatarpur Branch, New Delhi?
(ii) If so, whether the aforesaid accused had induced Dena Bank, Chhatarpur Branch, New Delhi to sanction various credit facilities i.e. PC (Hyp) of Rs. 10 lacs, FBP of Rs. 10 lacs and local LC of Rs. 5 lacs in favour of M/s Chanda Exports, a Proprietorship concern of accused No. 1, Vivek Sood on the basis of aforesaid forged documents and by misrepresenting that she (accused No. 6, Ramwati) was Mrs. Vimal Jyotsana, owner of property No. B-4/122, Safdurjang Enclave, New Delhi?
(iii) If so, whether the above named accused had induced Dena Bank, Chhatarpur Branch, New Delhi as above dishonestly/fraudulently?
(iv) If so, whether the aforesaid amount was credited in account of M/s Chanda Exports?
10.1 It is pertinent to refer to Sec. 3 of the Indian Evidence Act, 1872 (hereinafter referred to as 'IEA') which define the terms 'proved', d ' isproved' and 'not proved' as under :-
" ' Proved'- A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists"
" ' Disproved'- A fact is said to be disproved when, after considering the CBI Case No. 21/12 17-12-2014 30 of 81 CBI Vs. Vivek Sood & Ors.
matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist."
"'Not proved'-A fact is said not to be proved when it is neither proved nor disproved."
10.2 It is well settled that the word 'proof' means anything which serves, either immediately or mediately to convince the mind of the truth or falsehood of a fact or proposition; and the proofs of matters of fact in general are our senses, the testimony of witnesses, documents and the like. " Proof"
does not mean proof to rigid mathematical demonstration, because that is impossible; it means such evidence as would induce a reasonable man to come to the conclusion [vide Emperor vs. Shafi Ahmed, (1925) 31 Bom. LR 515]. Further, Sec. 134 of IEA stipulates that no particular number of witnesses shall in any case be required for the proof of any fact.
10.3 In human affairs, everything cannot be proved with mathematical certainty and the law does not require it. Legal proof is something different from moral certainty about the guilt of an accused person. Suspicion, however, great, cannot take the place of legal proof. A moral conviction, however strong or genuine, cannot amount to a legal conviction supportable in law. The well known rule of criminal justice is that " fouler the crim e, higher the proof." [ vide Sharad Birdhichand vs. State of Maharashtra, AIR 1984 SC CBI Case No. 21/12 17-12-2014 31 of 81 CBI Vs. Vivek Sood & Ors.
1622].
10.4 In criminal matters, the prosecution is required to prove its case beyond a reasonable doubt. A benefit of doubt is the condition of the mind which exists where the judges cannot say that they feel an abiding condition, a moral certainty of the truth of the charge. It must not be a mere doubt of a vacillating mind that has not the moral courage to decide upon a difficult and complicated question and therefore, takes shelter in an idle scepticism (vide 1977 CrLJ 59).
10.5 It is well settled that the burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. However, the rule in section 106 of the Act would apply when the facts are 'especially within the knowledge of the accused' and it would be impossible or at any rate disproportionately difficult for the prosecution to establish such facts which are 'especially within the knowledge of the accused'. The prosecution is not required to eliminate all possible defences or circumstances which may exonerate him. If certain facts are in the knowledge of the accused then he has to prove them. Of course the prosecution has to prove prima facie case in the first instance. In this regard reference can be made to Murlidhar vs. State of Rajasthan, AIR 2005 SC 2345, State of Punjab vs. Karnail Singh, (2003) 11 SCC 271, Trimukh Maroti Kirkan vs. State of Maharashtra, 2007 Cr LJ 20 (SC), Santosh Kumar Singh vs. State, (2010) 9 SCC 747 and Ram CBI Case No. 21/12 17-12-2014 32 of 81 CBI Vs. Vivek Sood & Ors.
Singh vs. State, 2011 Cr LJ 618 (Raj.), AIR 1959 SC 1390, AIR 1937 Rang 83, 1968 Cri LJ 848, AIR 1967 Mys 79 and 1964 (1) Cri LJ 688.
10.6 It is also pertinent to refer to Sec 313 (4) of the Cr.P.C. which stipulates that the answers given by the accused, in his statement under this section, may be taken into consideration in such enquiry or trial, and put in evidence for or against him in any other enquiry into, or trial for, any other offence which such answers may tend to show he has committed. It is well settled that admission or confession of the accused in the statement under section 313, Cr PC in the course of trial can be acted upon and the court can rely on these confessions to proceed to convict him. In this regard reference can be made to Dharnidhar v. State of Uttar Pradesh, (2010) 7 SCC 759 and State of Maharashtra v. Sukhdev Singh, AIR 1992 SC 2100.
10.7 Further, the evidence of one accused or admission or action or statement made by one of the accused can be used as evidence against the other by virtue of Section 10 of the Indian Evidence Act. In this regard reference can be made to Tribhuvan Nath Vs. State of Maharashtra, AIR 1973 SC 450 and Kehar Singh v State, AIR 1988 SC 1883 10.8 It is also well settled that criminal conspiracy is often hatched in secrecy and for proving the offence, substantial direct evidence may not be available. An offence of criminal conspiracy can also be proved by circumstantial evidence. However, it cannot be deemed to have been CBI Case No. 21/12 17-12-2014 33 of 81 CBI Vs. Vivek Sood & Ors.
established on mere suspicion and surmises or inferences which are not supported by cogent evidence. Where the prosecution case rests merely on circumstantial evidence, the facts established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. However, on the basis of evidence led by prosecution, if two views are possible, one pointing to the guilt of the accused and other to his innocence, the one in favour of the accused must be accepted. In this regard, reference can be made to Saju vs. State of Kerala, (2001) 1 SCC 378, Sherimon vs. State of Kerala, (2011) 10 SCC 768, P.K. Narayanan vs. State of Kerala, (1995) 1 SCC 142, State of M.P. vs. Sheetla Sahai, 2009 Cr. LJ 4436, Shivaji Saheb Rao Bobde vs. State of Maharashtra, AIR 1973 SC 2622, Harendra Narain Singh vs. State of Bihar, AIR 1991 SC 1842, Baboo Ram, vs. State, 1996 Cri LJ 483 and N. Rajendra Prasad Bhat vs. State, 1996 Cri LJ 258.
10.9 The essence of conspiracy is unlawful combination and the complicity of the accused has to be decided after considering all the circumstances proved, before, during and after occurrence. Agreement between the conspirators may also be proved by necessary implication. It is not necessary that each member of a conspiracy must know all the details of the conspiracy. Facts established should be consistent only with the hypothesis of guilt of the accused. It does not mean that each and every hypothesis suggested by accused must be excluded by proved facts. In this regard, reference can be made to Chaman Lal vs. State of Punjab, AIR CBI Case No. 21/12 17-12-2014 34 of 81 CBI Vs. Vivek Sood & Ors.
2009 SC 2972, R.K. Dalmia vs. The Delhi Administration, AIR 1962 SC 1821, Muriappan vs. State of Tamil Nadu, AIR 2010 SC 3718 and Firozuddin Basheeruddin vs. State of Kerala, (2001) 7 SCC 596.
10.10 It is also pertinent to refer to section 45 of the IEA which provides as under:-
" 45. Opinions of experts.- When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts."
10.11 The weight that ought to be attached to the opinion of an expert is a different matter from its relevancy. The Act only provides about the relevancy of expert opinion but gives no guidance as regards its value. In Murari Lal vs. State of Madhya Pradesh, 1980 AIR 531, the Hon'ble Supreme Court held, " We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystalized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the CBI Case No. 21/12 17-12-2014 35 of 81 CBI Vs. Vivek Sood & Ors.
opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted."
10.12 It is in the light of the above position of law that evidence is to be appreciated.
Appreciation of Evidence 11.1 From the evidence of PW 6 Sh. Ajit Prashad Jain, PW 12 Sh. Rajesh Saigal, PW 15 Sh. Janak Kochhar, PW 17 Sh. K.N. Shenoy, PW 4, Sh. Anuj Kumar Beotra, PW 5 Sh. V.P. Aneja and PW 9 Sh. Arvind Sinha, the following facts have emerged :-
i) During the period May 1998 to November 1998, accused No. 7, R.G. Pareek was a public servant i.e. Senior Manager, Dena Bank, Chattarpur Branch, New Delhi.
(ii) Accused No. 1, Vivek Sood was Proprietor of Chanda Exports, 253, Shahpur Jat, Opp. Panchsheel Shopping Complex, New Delhi.
(iii) Chanda Exports opened Current Account No. 903, as per Account Opening Form, Ex. PW6/1, and Specimen Signature Card, Ex.PW6/2.
(iv) Chanda Exports submitted an application, Ex.PW6/3, signed by accused No. 1, Vivek Sood, to Dena Bank, Chhatarpur Branch, New Delhi for CBI Case No. 21/12 17-12-2014 36 of 81 CBI Vs. Vivek Sood & Ors.
grant of credit facilities.
(v) Chanda Exports vide its letter, Ex.PW6/5 signed by accused No. 1, Vivek Sood, requested Dena Bank, Chhatarpur Branch, New Delhi for PC, FBP and LC Limits.
(vi) Valuation report, dated 11-08-1998, Ex.PW4/2 in respect of property No. B-4/122, Safdurjang Development Residential Scheme, now known as Safdurjang Enclave, New Delhi was given by Sh. V.P. Aneja to Branch Manager, Dena Bank, Chhatarpur Branch, New Delhi vide letter dated 11-08-1998, Ex.PW4/1.
vii) Search report dated 19-08-1998, Ex.PW9/1 was given by Sh. Arvind Sinha, Advocate in respect of property No. B-4/122, Safdurjang Enclave, New Delhi.
(viii) Vide Proposal/Memorandum for Credit Limits, Ex.PW6/6, the aforesaid request was processed, recommended, and sanctioned by accused No. 7, Ram Gopal Pareek, on 27-08-1998.
(ix) Amongst others, the following documents were submitted/executed by the borrower and the guarantor with Dena Bank, Chhatarpur Branch, New Delhi with regard to the above credit facilities :-
(a) Perpetual Lease Deed dated 17-08-1968, Ex.PW6/12, purportedly executed by Addl. Secretary, Lease Administration, DDA in favour of Smt. Vimal Jyotsana in respect of Plot No. 122, Block No. B-4, Safdurjang Development Residential Scheme (now called Safdurjang Enclave),
b) Copy of Form 3CB and Form 3 CD, Mark PW 2/A purportedly of Goel & Jolly, Chartered Accountants, 4695, Dev Nagar, Karol Bagh, New Delhi,
c) Statement of Assets and Liabilities of purported Guarantor, Smt. Vimal CBI Case No. 21/12 17-12-2014 37 of 81 CBI Vs. Vivek Sood & Ors.
Jyotsana, certified photocopy of which is Ex.PW6/8,
d) Certificate, signed by purported Guarantor, Smt. Vimal Jyotsana, certified photocopy of which is Ex.PW6/9,
e) Letter of guarantee, signed by purported Guarantor, Smt. Vimal Jyotsana, certified photocopy of which is Ex.PW6/10,
f) General letter of lien and set off for borrowing arrangements, dated 29-09-1998, purportedly signed by Smt. Vimal Jyotsana, certified photocopy of which is Ex.PW6/11, and
g) NOC dated 24-08-1998, Ex.PW11/DA, purportedly given by DDA in respect of property No. B-4/122, Safdurjang Enclave, New Delhi.
viii) Statement of account of Current Account No. 903 of Chanda Exports for the period 01-01-1997 to 08-09-2000 is Ex.PW25/C.
x) Prosecution sanction dated 07-12-2001, Ex.PW17/A for prosecution of accused No. 7, Ram Gopal Pareek was granted by PW 17 Sh. K.N. Shenoy, Dy. General Manager (Personnel & Human Resources), Dena Bank.
From the evidence of PW6 Sh. Ajit Prashad Jain, PW 12 Sh. Rajesh Saigal, PW 15 Sh. Janak Kochhar, PW 17 Sh. K.N. Shenoy, PW 4 Sh. Anuj Kumar Beotra, PW 5 Sh. V.P. Aneja and PW 9 Sh. Arvind Sinha, statements of accused persons u/s 313 Cr.P.C. and the arguments advanced on behalf of the accused persons, it is clear that the above facts have not been disputed by the accused persons.
12.1 PW 10 Sh. K.N. Mishra Gopal, Chief Manager, State Bank of CBI Case No. 21/12 17-12-2014 38 of 81 CBI Vs. Vivek Sood & Ors.
Bikaner & Jaipur, Nehru Place, New Delhi Branch has testified about letter dated 31-01-2001, Ex.PW10/A vide which he has informed the IO about Current Account No. 734 of M/s Swati Fine Jewellery. PW 22 Sh. J.P. Arora, Chief Manager, UCO Bank, Defence Colony Branch has deposed about handing over documents vide letter dated 16-01-2001 Ex.PW22/A (colly) and letter dated 20-02-2001, Ex.PW22/B (colly). PW 27 Sh. Harish Kumar Bhalla, Manager, Dena Bank, Chhattarpur Branch has deposed about photocopy of the seizure memo, dated 08-09-2000, Ex.PW27/A. 12.2 PW 16 Sh. Madan Lal Khanna, Karta of Banarsi Das & Son, HUF, who was dealing in bullions has deposed about accused No. 1, Vivek Sood, who used to represent M/s Kamayani Jewellery, taking gold from his firm. PW 21 Sh. Arvind Mishra has deposed about SKV Exports and Trading Pvt. Ltd.
13.1 It can be observed that the lease deed, dated 17-08-1968, Ex.PW6/12, executed on behalf of Delhi Administration (Land & Housing Department) in favour of Mrs. Vimal Jyotsana in respect of residential plot No. 122, Block No. B-4, Safdarjang Development Residential Scheme, (Safdarjang Enclave), New Delhi has been purportedly signed by Mrs. Vimal Jyotsana in Hindi at points Q-46 to Q- 55. Similarly, statement showing personal assets and liabilities of the guarantor, photocopy of which is Ex.PW6/8, has been purportedly signed by Mrs. Vimal Jyotsana in Hindi at point Q-34. Certificate, photocopy of which is Ex.PW6/9, has also been purportedly signed by Mrs. Vimal Jyotsana in Hindi at point Q-35. Letter of CBI Case No. 21/12 17-12-2014 39 of 81 CBI Vs. Vivek Sood & Ors.
guarantee dated 29-08-98, photocopy of which is Ex.PW6/10, is purportedly signed by guarantor Mrs. Vimal Jyotsana in Hindi at points Q-36 to Q-44. The general letter of lien and set off for borrowing arrangements, photocopy of which is Ex.PW6/11, has also been purportedly signed by Mrs. Vimal Jyotsana in Hindi at point Q-45.
13.2 In this regard, PW 19 Mrs. Vimal Jyotsana, owner of the aforesaid property has testified that she is a graduate. In the year 1968, she had purchased property No. B-4/122, Safdarjang Development Residential Scheme from DDA in auction under perpetual lease. The land was purchased for Rs. 37,300/-. After constructing the said land, she had let out the same. She had given this property to M/s Nishtha Builders in collaboration in the year 2000. It was agreed between her and M/s Nishtha Builders that she had to take the ground floor which was to be rebuilt by the said builder and remaining floors were to be given to builder. Besides the ground floor, she was also paid Rs. 12 lacs by the said builder. She further stated that she never mortgaged this property to any bank or financial institution. She does not know any person by the name of Vivek Sood. She has not heard the name of M/s Chanda Exports. She mostly signed the documents in English. She also stated that Ex. PW 8/1 (photocopy) is perpetual lease deed in her favour and she identifies her signatures at point C on all the pages of Ex. PW 8/1. She further testified that Ex. PW 11/A (sic Mark PW 11/A) is also a copy of same perpetual lease deed. It also bears her signature at point A on each page. She also stated that her name which is written in Hindi on Ex.PW6/12 at point A on all the 9 pages, purported to be her signature are not in her CBI Case No. 21/12 17-12-2014 40 of 81 CBI Vs. Vivek Sood & Ors.
handwriting and are not her signatures. She does not sign in Hindi. She also stated that signature in her name appearing in Hindi at point A on each page of Ex.PW6/10, comprising 7 pages, are not her signatures. She further testified that signature in her name appearing in Hindi at point A on Ex.PW6/11 is not her signature. She also deposed that signature in her name appearing in Hindi at point X on Ex.PW6/8 is not her signature. She further testified that similarly signature in her name appearing in Hindi at point Y on Ex.PW6/9 is not her signature. She had never prepared any document of this kind. Signature at point Z on Ex.PW7/2 is her signature. This was the power of attorney given by her to M/s Nishtha Builders. The document also bears her photograph and photograph of proprietor of M/s Nishtha Builders.
13.3 During her cross- examination, PW 19 Mrs. Vimal Jyotsana admitted that signatures Mark A on Ex. PW11/A and Mark C on Ex.PW8/1 are her. She has only one Perpetual Lease Deed. Same is with her. She has given only one copy of Perpetual Lease Deed to CBI. She does not remember which copy i.e. either Ex.PW11/A or Ex.PW8/1 was given to CBI. She never writes in Hindi. She admitted that the original lease deed is not with her and the same was given to the builder. She stated that she has executed certain documents with the builder. Ex.PW7/2 (Special Power of Attorney) contains her photo as well as her signatures at Mark Z. Ex.PW7/3 (General Power of Attorney) contains her photograph and also her signatures marked A1, B1, C1, D1 and E1. She admitted that the signatures on Ex.PW7/2 and Ex. PW 7/3 contain underline whereas the signatures on the perpetual lease deed does not have such underline. The signature on the CBI Case No. 21/12 17-12-2014 41 of 81 CBI Vs. Vivek Sood & Ors.
perpetual lease deed is straight and signatures on Ex.PW7/2 and PW 7/3 are inclined. She further stated that Ex.PW7/5 is the collaboration agreement executed by her with the builder and the same contain her signatures marked F1, G1, H1, I-1, J1 and K1. Ex.PW7/6 is the possession letter executed by her and the same contains her signatures at L1. She knows how to write Hindi but she never signs in Hindi. CBI never asked her to write anything in Hindi.
The testimony of PW 19 Mrs. Vimal Jyotsana has gone unimpeached as nothing affecting her testimony could be elicited during her cross- examination.
13.4 PW 7 Sh. Joginder Malik has generally corroborated the version of PW 19 Smt. Vimal Jyotsana regarding her handing over of the property in question to M/s Nishtha Builders. He testified that during the year 1999 to 2001, he was working as Manager in M/s Nishtha Builders, M-6, Saket, New Delhi. Shri Sanjay Chaudhary was the Proprietor of the firm. He further stated that letter, Ex.PW7/1 of M/s Nishtha Builders sent to Shri A.K. Singh, Inspector, CBI, New Delhi bears the signatures of Shri Sanjay Chaudhary at point A. Through Ex. PW 7/1, photocopies of special power of attorney dt. 31-08-2000, Ex. PW 7/2, general power of attorney dt. 31-08-2000, Ex. PW 7/3, copy of will dated 31-08-2000, Ex. PW 7/4, true copy of collaboration agreement dated 30-08-2000, Ex. PW 7/5 and true copy of possession letter, Ex. PW 7/6 were handed over to Shri A.K. Singh, Inspector, CBI. He also testified that document No. 17, i.e. Letter, Ex.PW7/7 of Shri Sanjay Chaudhary, proprietor of M/s Nishtha Builders sent to Insp. A.K. Singh, CBI, CBI Case No. 21/12 17-12-2014 42 of 81 CBI Vs. Vivek Sood & Ors.
bears signatures of Shri Sanjay Chaudhary at point A. Vide Ex. PW 7/7, a true copy of perpetual lease deed, Mark PW 7/A of the property i.e. Plot No. 122, Block No. B-4, situated at Safdarjung Development Residential Scheme was also handed over to Shri A.K. Singh. As per the agreement, he confirmed that the landlady Vimal Jyotsana had handed over the vacant possession of the above said property to them in the year 2000 and thereafter the old construction was demolished by them and new building was constructed.
13.5 During his cross- examination, PW 7 Sh. Joginder Malik stated that as a builder, they verify the documents of the property before they demolish the old structure and/or reconstruct the new structure. In this case, before entering into the agreement, they have seen the original document of the property from the landlady. He also stated that when they executed the collaboration agreement with the land lady, the original documents were not given to them. The above testimony of PW 7 has also gone unimpeached.
13.6 PW 8 Sh. Gian Chand Chopra has testified that during the year 2000-01, he was posted as UDC and Record keeper in the office of Sub Registrar III, 4/7, Ausaf Ali Road, New Delhi. Being a Record Keeper, he was the custodian of all the records of lease deed, sale deed, Will etc. which have been registered in the office of Sub-Registrar. He also stated that the certified copy of perpetual lease deed, Ex. PW 8/1 pertaining to the property owned by Smt. Vimal Jyotsana W/o Shri S.C. Mittal, E-83, South Extension, Part-I, New Delhi bears his signature at point A and also bears signature of Shri S.K. Tyagi Sub-Registrar at point B. He has compared the photocopy of lease CBI Case No. 21/12 17-12-2014 43 of 81 CBI Vs. Vivek Sood & Ors.
deed with the original lease deed available in the office record and thereafter, he put his signature at point A. Ex.PW8/1 was handed over to Sh. A.K. Singh, Insp. of Police in response to letter, Ex.PW8/2. Ex. PW 8/2 also bears his signature at point A. He further testified that the lease deed, Ex. PW 8/1 was registered in the office of Sub-Registrar on 17-08-1968 vide registration No. 5088, Book No. 1, Volume No. 2028, at pages 154-159. The document i.e Ex. PW 8/1 registered in their office bears the signature of property owner in English on page at point C. He also stated that the document, Ex. PW 6/12 bears the signature of property owner on each page in Hindi at point A. As per their office record, the document, Ex. PW 6/12 was not registered in the office of Sub Registrar III. Ex. PW 6/12 bears registration No. as 5888, book No. 202 at point B which registration No. is also incorrect. The correct registration No. of the property as per lease deed, Ex. PW 8/1 is 5088.
13.7 During his cross-examination, PW8 Sh. Gian Chand Chopra admitted that Ex.PW6/12 is not registered with their office. He cannot identify the signature of the Registrar appearing on the document Ex.PW6/12 which is mark C because he was not posted in the office of Sub Registrar at that time.
The testimony of PW 8 Sh. Gian Chand Chopra has also gone unimpeached as nothing affecting his credibility came out during his cross- examination.
13.8 PW 11 Sh. Shiv Charan Gupta, has testified that in the year 2001, he was working as an Assistant in the Lease Administration Branch of DDA. They used to deal with the execution of lease deeds and its record. On CBI Case No. 21/12 17-12-2014 44 of 81 CBI Vs. Vivek Sood & Ors.
15-05-2001, at the request of the CBI, they had given photocopy of the perpetual lease deed, Mark PW11/A of property No. B-4/122, Safdarjung Development Area. The lease was made in favour of Smt. Vimal Jyotsana w/o Shri S.C. Mittal and the said lease was executed on 7-8-1968. The photocopy is attested by one Mr. Jain, Asstt. Director, Lease Administration. He can identify the signatures of Mr. Jain as he has worked with him. The letter dt. 15-05-2001 written on behalf of the DDA to the CBI, is Ex. PW 11/A. The true photocopy of the perpetual lease deed, Mark PW 11/A bears signature of Mr. Jain at point A. During his cross-examination, nothing material came out.
13.9 It can be seen that there is direct evidence of PW 19 Mrs. Vimal Jyotsana that the Lease Deed, Ex.PW6/12 and other loan documents viz. Ex.PW6/8, Ex.PW6/9, Ex.PW6/10 and Ex.PW6/11 do not bear her signatures and that she has never mortgaged her above property to any bank or financial institution. Further, on the copies of lease deed, Mark PW 7/A, Ex. PW8/1 and Mark PW 11/A, executed by Mrs. Vimal Jyotsana, she had signed in English whereas on the lease deed, Ex.PW6/12, the signatures as 'Vimal Jyotsana' are in Hindi.
13.10 Thus, it is clear that PW 19 Mrs. Vimal Jyotsana never stood as a guarantor for the borrower accused No. 1, Vivek Sood and she had not submitted/executed the documents i.e. the lease deed, Ex.PW6/12, statement showing personal assets and liabilities of guarantor, Ex.PW6/8, letter of guarantor showing that title of proerty was clear and free from all CBI Case No. 21/12 17-12-2014 45 of 81 CBI Vs. Vivek Sood & Ors.
encumberances, Ex.PW6/9, letter of guarantee, Ex.PW6/10 and general letter of lien and set off for borrowing arrangements, Ex.PW6/11. The said documents are, thus, forged documents.
14.1 There is no dispute that for the purpose of taking loan, accused No. 1, Vivek Sood has submitted balance sheet (Form 3CB and Form 3CD) of Chanda Exports, Mark PW 2/A purportedly audited by Goel & Jolly, Chartered Accountants. The said balance sheet bears signature of one Sh. Ashok Goel as partner of Goel & Jolly, Chartered Accountants. It also bears address of Goel & Jolly as "4695, Dev Nagar, Karol Bagh, New Delhi - 110005".
14.2 In this regard, PW 2 Sh. Vinay Kumar Goel has testified that he is a Chartered Accountant and has been doing work as such under his firm named M/s Goel & Jolly since 1984, having office at 4/1 D.B. Gupta Road, Paharganj, Delhi up to 1996 and thereafter at 501, Ambadi Building, 14, K.G. Marg, New Delhi-1. Mr. Naresh Jolly was a partner with him in this firm. His CA membership No. is 81815. The CA membership number of Mr. Naresh Jolly is 83103. He further deposed that Mr. Anil Singhal, Mr. G.P. Aggarwal and Mr. Rakesh Goel had been partners in this firm for small period of 2-3 years only. He also stated that photocopy of audit report, Mark PW 2/A and photocopy of the attached annexures (24 pages) of the report were not issued by their firm and these do not contain signature of any of their partners. Signatory Ashok Goel had never been partner in their firm till date and the address given on the letter head also does not relate to them. Their firm CBI Case No. 21/12 17-12-2014 46 of 81 CBI Vs. Vivek Sood & Ors.
never examined and audited any documents/accounts of Chanda Exports.
14.3 During his cross-examination, PW 2 Sh. Vinay Kumar Goel stated that in the year 1998, he was either alone looking after the firm work or Mr. Jolly might also have been in the firm with him. There was no third partner in the firm in 1998. He further stated that Mark PW 2/A is not on their letterhead because its style is totally different from the letterheads which he got printed for his firm, and the address in this letterhead had never been the address of his CA Firm. They do not take up the work of Banking Loans, may be in one or two matters, his partner Mr. Jolly might have done such case.
14.4 The testimony of PW 2 Sh. Vinay Kumar Goel has gone unimpeached and unrebutted. The prosecution has discharged its burden by examining PW 2 Sh. Vinay Kumar Goel, who is working in the name & style of Goel & Jolly to prove that his firm had not audited the balance sheet, Mark PW2/A. If there was any other firm Goel & Jolly or Sh. Ashok Goel who had audited the balance sheet, Mark PW2/A, the same was especially within the knowledge of accused No. 1, Vivek Sood and the burden was upon him to prove the said fact. He has neither led any evidence nor offered any clarification in this regard. Ergo, it can be safely held that Mark PW 2/A is a forged document.
15.1 Evidence led on record reveals that letter No. 09/ (311)/68/LSBK/04/5 dated 24-08-1998, Mark PW 11/B (also Ex.PW11/DA) purportedly written by DDA to Smt. Vimal Jyotsana vide which permission to CBI Case No. 21/12 17-12-2014 47 of 81 CBI Vs. Vivek Sood & Ors.
mortgage residential plot No. 122, Block No. B-4, Safdarjang Development Scheme, New Delhi was granted was submitted to Dena Bank, Chhattarpur Branch, New Delhi.
15.2 In this regard, PW 23 Sh. R.L. Madan has testified that during the period 1996 to 2000 he was posted as Dy. Director, Lease Administration Branch, DDA. Letter dt. 24-08-1998, Ex. PW 11/DA purportedly written by Dy. Director (Residential DDA), regarding permission to mortgage residential plot No. 122, Block No. B-4, in Safdarjang Development Scheme does not bear his signature at any place. He further testified that letters dt. 17-09-1999, 20-01-2000 and 10-03-2000 (D-16), which are Exs. PW 11/B, PW 11/C and PW 11/D respectively were written by him to the Senior Manager, Dena Bank, Chattarpur Branch in response to their queries. All the three letters bear his signatures at point 'A' respectively.
15.3 It can be seen that in letter dated 17-09-1999, Ex. PW11/B, Dy. Director (LA) Resd., DDA had, while giving reference of his letter dated 16-11-1998, requested Senior Manager, Dena Bank, Chattarpur Branch to provide a photocopy of permission to mortgage residential plot No. 122, Block B-4 in Safdarjang Development Scheme to verify the genuineness of such permission as no such mortgage permission has been issued from the concerned file. Further, vide letter dated 20-01-2000, Ex. PW11/C, Dy. Director (LA) Resd., DDA informed Senior Manager, Dena Bank, Chattarpur Branch that no mortgage permission was granted by their office on 24-08-1998 to Smt. Vimal Jyotsana against residential Plot No. B-4/122 in CBI Case No. 21/12 17-12-2014 48 of 81 CBI Vs. Vivek Sood & Ors.
Safdarjang Development Area. Senior Manager, Dena Bank, Chattarpur Branch was further requested to take necessary action against the defaulter who has forged mortgage permission and taken loan. Further, vide letter dated 10-03-2000, Ex. PW11/D, Dy. Director (LA) Resd., DDA, has informed Senior Manager, Dena Bank, Chattarpur Branch to obtain a certified copy of lease deed from Sub Registrar Office and take further necessary action accordingly. PW 23 Sh. R.L. Madan also deposed that DDA has not given any NOC in respect of property No. 122, Block B-4, Safdarjang Development Scheme.
15.4 During his cross examination, PW 23 Sh. R.L. Madan stated that when CBI had shown him letter Ex.PW11/DA, he would have seen the file, mentioned in the said letter. He does not remember whether he had told the CBI that the said file was there or not since now he is retired for more than 11 years. He also stated that he cannot identify the second signature on Ex.PW11/DA. He does not remember whether he had received any reply from the Bank in response to his letter dt. 17-02-1999, Ex.PW11/B. He had verified the property documents before writing letter dt. 20-01-2000, Ex.PW11/C. He does not remember whether he had received copies of the property documents from the Bank in respect of the property, regarding which, verification was sought. The testimony of PW 23 Sh. R.L. Madan has gone unimpeached and unrebutted.
15.5 Further, PW 11 Sh. Shiv Charan Gupta stated that Mr. M.L. Madan was Dy. Director (Lease Administration) in the year 1999. He had CBI Case No. 21/12 17-12-2014 49 of 81 CBI Vs. Vivek Sood & Ors.
worked with him and he can identify his signatures. Letter dt. 24-8-1998, Mark PW 11/B does not bear the signature of Mr. M.L. Madan, the then Dy. Director (Lease Administration). Letter dt. 17-02-1999, Ex.PW11/B is issued by Mr. M.L. Madan, whose signature he identifies on the said letter. Letters dt. 20-01-2000 and 10-03-2000, both bearing signatures of Mr. M.L. Madan are Ex. PW 11/C and Ex. PW 11/D. He further stated that no permission was granted by the DDA to mortgage the aforesaid property No. B-4/122, Safdarjang Development Area, New Delhi. During his cross-examination, he stated that in 1998, he was in some other department and not in Lease Administration Department. In the year 1998, perhaps Mr. Jagdish Chandra was the Director. He cannot say if Mr. Madan was the Dy. Director in the year 1998 in the Lease Administration Department. He cannot identify the signature on letter Mark PW 11/B but the said signatures are not of Mr. Madan. Nothing affecting his testimony could be elicited during cross - examination of PW 11 Sh. Shiv Charan Gupta.
15.6 It appears that PW11 Sh. Shiv Charan Gupta inadvertently or due to lapse of memory stated that Sh. M.L. Madan was Dy. Director (Lease Administration) instead of Sh. R.L. Madan. There appears to be no doubt that PW23 Sh. Ram Lubhaya Madan was the Dy. Director Lease Administration Branch, DDA at the relevant time. Both PW 23 Sh. R.L. Madan and PW 11 Sh. Shiv Charan Gupta have categorically stated that letter dated 24-08-1998, Ex.PW11/DA does not bear signature of PW 23 Sh. R.L. Madan and that DDA has not given any NOC in respect of property No. 122, Block B-4, Safdarjung Development Scheme. Accused persons have neither led any evidence to the CBI Case No. 21/12 17-12-2014 50 of 81 CBI Vs. Vivek Sood & Ors.
contrary nor offered any explanation in this regard. Ergo, it is amply clear that no permission was given by DDA to mortgage property No. 122, Block No. B-4, Safdarjang Development Residential Scheme, (Safdarjang Enclave), New Delhi and thus letter dated 24-08-1998 of DDA, Mark PW 11/B (also Ex.PW11/DA) is forged.
16.1 Accused No. 1, Vivek Sood had tried to disassociate himself from the guarantor and the forged documents submitted for obtaining the loan by contending that even if the same were forged, he had no knowledge of the same. This argument is not tenable. A borrower cannot plead ignorance about the identity of the guarantor whom he is offering to the bank or the documents submitted by him for obtaining loan. Accused No. 1, Vivek Sood was very much aware that the guarantor being offered by him was not Mrs. Vimal Jyotsana, actual owner of property No. 122, Block No. B-4, Safdarjang Development Residential Scheme, (Safdarjang Enclave), New Delhi. From the evidence brought on record, it is clear that accused No. 1, Vivek Sood, in conspiracy with his co-accused persons, had by deceiving and dishonestly/fraudulently inducing Dena Bank, Chhatarpur Branch, obtained various credit facilities i.e. PC (Hyp) of Rs. 10 lacs, FBP of Rs. 10 lacs and local LC of Rs. 5 lacs, inter-alia, on the basis of forged documents i.e. lease deed, dated 17-08-1968, Ex.PW6/12, the balance sheets purportedly audited by Goel & Jolly, Mark PW2/A, NOC dated 24-08-1998, Mark PW11/B of DDA, statement showing personal assets and liabilities of the guarantor, photocopy of which is Ex.PW6/8, Certificate, photocopy of which is Ex.PW6/9, Letter of guarantee dated 29-08-98, photocopy of which is Ex.PW6/10 and the general CBI Case No. 21/12 17-12-2014 51 of 81 CBI Vs. Vivek Sood & Ors.
letter of lien and set off for borrowing arrangements, photocopy of which is Ex.PW6/11 and by misrepresenting that accused No. 6, Ramwati, (whose role is discussed in succeeding paras), was Mrs. Vimal Jyotsana, owner of property No. 122, Block No. B-4, Safdarjang Enclave, New Delhi. He also fraudulently/dishonestly used the aforesaid forged documents as genuine for inducing Dena Bank, Chhatarpur Branch, New Delhi to sanction the aforesaid credit facilities knowing or having reason to believe the same to be forged.
17.1 Regarding the role of accused No. 2, Nandita Bakshi, PW 20 Sh. Gyanender Mishra, has testified that accused No. 1, Vivek Sood and accused No. 2, Nandita Bakshi were doing business in the name of different firms like Balaji Exports, Kamayani Jewellery, SKV Exports Pvt. Ltd., Chanda Exports, Swati Fine Jewellery etc. He was looking after accounts of all their companies. He has also testified about the copies of account opening form, Ex. PW20/A and specimen signature card, Ex. PW20/B of SKV Exports & Trading Pvt. Ltd., which bear photographs and signatures of accused No. 2, Nandita Bakshi and Sh. Vijay Kumar Jha. This witness was cross - examined by the Ld. Special P.P. during which he denied the suggestion that he stated in his statement under Section 161 Cr.P.C., "I know that M/s SKV Exports & Trading was non existing company floated by Mrs. Bakshi and Mr. Jha for the purpose of transferring the funds from loan account of M/s Chanda Exports, Chanda International and M/s Swati Fine Jewellery Pvt. Ltd." During his cross-examination on behalf of accused persons, he stated that accused No. 1, Vivek Sood was not a Director in SKV Exports. No question had been put CBI Case No. 21/12 17-12-2014 52 of 81 CBI Vs. Vivek Sood & Ors.
to him regarding the above account opening form, Ex. PW20/A and specimen signature card, Ex. PW20/B. 17.2 PW 22 Shri J.P. Arora, Chief Manager, UCO Bank, Defence Colony Branch, deposed that vide letter dt. 16-01-2001, written by him to Inspector A.K. Singh of CBI, he had handed over the documents mentioned in the said letter to the CBI. The letter, alongwith all the enclosures is Ex. PW 22/A (colly.) which bears his signatures at point 'A'. Vide letter dt. 20-02-2001 written by him to Inspector A.K. Singh, he had handed over certain credit vouchers and debit vouchers mentioned therein, to the CBI. The letter, alongwith all the enclosures is Ex. PW 22/B (colly.) which bears his signatures at point 'A'. This witness was not cross-examined by any accused.
17.3 PW 25 Sh. Ajeet Kumar Singh has testified that vide letter dated 16-01-2001 (D-32), Ex.PW22/A (colly), UCO Bank, Defence Colony Branch had provided him the photocopy of Account Opening Form of M/s SKV Exports and Trading Pvt. Ltd. (Current Account No. 4369), photocopy of Specimen Signature Card and Statement of Account of the said Account. There were two Directors of M/s SKV Exports namely Vijay Kumar Jha and Nandita Bakshi. As per the Statement of Account, on 16-07-1999, a Pay Order for Rs. 4,20,000/- had been obtained from the Account of Chanda Exports at Dena Bank, Chhattarpur Branch in favour of SKV Exports and Trading Pvt. Ltd. This Pay Order was deposited in UCO Bank, Defence Colony Branch, on the same day. On the same day, a cash of Rs. 4,22,000/- was withdrawn by Nandita Bakshi vide bearer's cheque No. 537684. The CBI Case No. 21/12 17-12-2014 53 of 81 CBI Vs. Vivek Sood & Ors.
cheque bears signature of accused Nandita Bakshi at points A. He can identify her signatures since he had obtained her specimen signatures. His above testimony has gone unimpeached as during his cross examination, no question on the above fact has been asked.
17.4 It can be observed that in the Current Account Opening Form, Ex.PW20/A of Account No. 4369 of SKV Exports and Trading Pvt. Ltd., its address is given as, " F 13/203, Laxmi Nagar, Delhi - 110092" . In this regard, PW 25 Sh. A.K. Singh testified that he has given notice dated 23-01-2001, Ex.PW25/G, u/s 160 Cr.P.C. to M/s SKV Exports Trading Pvt. Ltd. at F/13/203, Laxmi Nagar, Delhi. The notice was handed over to Sh. S.P. Singh, Sub Inspector, CBI who had given a report, Ex.PW25/H, that no such firm existed on the given address and thus, notice could not be served.
17.5 PW 14 Sh. S.P. Singh, who was posted as SI in CBI SI VIII Branch of New Delhi testified that on the instructions of his SP, he had visited F-13/203, Vijay Chowk, Laxmi Nagar on 25-01-2001 and had conducted enquiry about SKV Exports and Trading Pvt. Ltd. It was not in existence at the given address and he submitted a report, Ex.PW14/A to this effect to SP, CBI, New Delhi. During his cross-examination, he testified that he had not recorded statement of any neighbour or the occupant of the said house before giving his report. He met somebody in the said office but he cannot tell his name now. He asked the said person about the occupancy of the said office and he told that the premises was being used by an Advocate as his office. He was even told that prior to the occupation of this premises by the CBI Case No. 21/12 17-12-2014 54 of 81 CBI Vs. Vivek Sood & Ors.
Advocate, the said office was being used by Chartered Accountant. No suggestion/question has been put to him that SKV Exports & Trading Pvt. Ltd. was working from the above address or that it had shifted to any other place.
17.6 The evidence of PW 20 Sh. Gyanender Mishra to the effect that accused No.1, Vivek Sood and accused No. 2, Nandita Bakshi were doing business in the name of different firms like Balaji Export, Kamayani Jwellery, SKV Exports Pvt. Ltd., Chanda Exports, Swati Fine Jwellery etc. has not been disputed by the accused persons. It is also not disputed that accused No. 2, Nandita Bakshi and one, Sh. V.K. Jha are the Directors of SKV Exports and Trading Pvt. Ltd., which was having current account No. 4369 in UCO Bank. Attested photocopies of the account opening form and the specimen signature card of the said account are Ex. PW20/A and Ex. PW20/B respectively. In her statement u/s 313 Cr. P.C., accused No. 2, Nandita Bakshi had stated that she was one of the Directors in SKV Exports and Trading Pvt. Ltd.
17.7 It is also not disputed that PW 22 Sh. J.P. Arora, Chief Manager, UCO Bank, Defence Colony Branch had handed over documents, mentioned in the letter dated 16-01-2001, Ex.PW22/A (colly.) and credit vouchers and debit vouchers mentioned in letter dated 20-02-2001, Ex.PW22/B (colly.) to the CBI. Vide Ex.PW22/A (colly.), photocopy of Account Opening Form, Ex.PW22/A, photocopy of Specimen Signature Card, Ex.PW22/B and up to date Statement of Account of current account No. 4369 of SKV Exports and Trading Pvt. Ltd. were handed over to CBI. Further, vide Ex.PW22/B (colly.), inter-alia, the following documents were handed over to CBI :-
CBI Case No. 21/12 17-12-2014 55 of 81 CBI Vs. Vivek Sood & Ors. (i) Pay Order No. 327259 dated 16-07-1999 for Rs. 4,20,000/- in favour of SKV Exports and Trading Pvt. Ltd., (ii) Credit slip dated 16-07-1999 for deposit of the Pay Order in account No. 4369 of SKV Exports and Trading Company,
(iii) Cheque No. 537684 dated 16-07-1999 for Rs. 4,20,000/- in favour of "Self" signed by accused No. 2, Nandita Bakshi for SKV Exports and Trading Pvt. Ltd.
The Statement of Account sent vide letter dated 16-01-2001, Ex.PW22/A (Colly) has not been certified as per The Banker's Books of Evidence Act, 1891. However, when the above evidence was put to accused No. 2, Nandita Bakshi during her statement u/s 313 Cr.P.C., she stated that she does not know. Thus, the above evidence has also not been disputed by accused No. 2, Nandita Bakshi. Further when PW 14 Sh. S.P. Singh went to the given address of SKV Exports and Trading Pvt. Ltd. on 25-01-2001, it was not found in existence. Accused persons have not clarified where it was existing at that time.
17.8 From the aforesaid evidence, it is clear that accused No. 2, Nandita Bakshi was one of the Director of SKV Exports & Trading Pvt. Ltd. which was having Current Account No. 4369 at UCO Bank, Defence Colony, New Delhi. A sum of Rs. 4,20,000/- was transferred from the account of M/s Chanda Exports to the account of SKV Exports and Trading Pvt. Ltd. The same was withdrawn by 'self' cheque No. 537684 dated 16-07-1999, Ex.PW22/B (colly) by accused No. 2, Nandita Bakshi. Thus, there was a link between accused No. 2, Nandita Bakshi and accused No. 1, Vivek Sood with CBI Case No. 21/12 17-12-2014 56 of 81 CBI Vs. Vivek Sood & Ors.
regard to cheating committed by accused No. 1, Vivek Sood with Dena Bank. There is no explanation by accused No. 2, Nandita Bakshi as to for what purpose the amount of Rs.4,20,000/- was received by SKV Exports and Trading Pvt. Ltd. from Chanda Exports. The said amount was withdrawn by her vide cheque No. 537684 dated 16-07-1999. The above circumstances lead to the inference that accused No. 2, Nandita Bakashi has facilitated accused No. 1, Vivek Sood in siphoning the loan amount. Therefore, accused No. 2, Nandita Bakshi was a party to the conspiracy to cheat Dena Bank.
18.1 The only evidence pertaining to accused No. 3, Shafique-Ur- Rehman is through PW 3 Sh. L.K. Bansal, Manager, Punjab National Bank, Nizamuddin Branch, New Delhi and PW 28 Sh. Babu Lal. PW 3 Sh. L.K. Bansal has handed over the following documents vide handing over memo/letter dated 06-07-2001, Ex.PW3/1 :-
i) Copy of credit voucher dated 15-11-1997 for Rs. 3,15,000/-, Ex.PW3/2,
ii) Copy of statement of account, Ex.PW3/3,
iii) Copy of cheque No. 901552 dated 17-11-1997 for Rs. 1,74,000/- in the name of accused No. 3, Shafique-Ur-Rehman, issued by accused No. 2, Nandita Bakshi as Proprietor, Kamayani Fine Jewellery,
iv) Copy of credit voucher dated 17-11-1997, for Rs. 1,74,000/-, Ex.PW3/5,
v) Copy of Statement of Account No. 18670 of accused No. 3, Shafique- Ur-Rehman, Ex.PW3/6,
vi) Copy of Statement of Account No. 19705 of accused No. 3, Shafique-
Ur-Rehman, Ex.PW3/7.
CBI Case No. 21/12 17-12-2014 57 of 81 CBI Vs. Vivek Sood & Ors. 18.2 During the course of arguments, Ld. counsel for accused No. 3,
Shafique-Ur-Rehman has not denied receipt of Rs. 3,15,000/- and Rs. 1,74,000/- by accused No. 3, Shafique-Ur-Rehman from Balaji Exports and Kamayani Fine Jewellery respectively.
18.3 PW 26 Sh. Babu Lal deposed that in the year 1998, he was running a Parchoon shop and was residing at Chauhan Pur, Karawal Nagar, Delhi. He had never resided at Chatarpur. He was a tenant in the house of Shri Karam Singh. In the same house, where he was residing, accused No. 4, Kirpal Singh was also living. This witness did not support the prosecution case and was thus cross-examined by Ld. Special P.P. During his cross - examination by Ld. Special P.P., he stated that CBI had not recorded his statement. CBI had called him for inquiry in this case in the year 2001.
18.4 PW 26 Sh. Babu Lal denied various other suggestions given by Ld. Special P.P. on the lines of purported statement of the said witness u/s 161 Cr.P.C. To the suggestion that in the same house, Kirpal Singh, who was doing the business of property, was also residing, he stated that Shri Kirpal Singh was residing there but he does not know whether he was doing property dealing or not. He does not know as to for how long, Kirpal Singh was residing there. To the suggestion that he had good family relation with Kirpal Singh since both of them were residing in the same house, he stated that there were no such relations. He denied that in the year 1998, Kirpal Singh told him that he had an LC in the Bank, he was to get some money but for the said purpose, evidence of one woman was required and after giving CBI Case No. 21/12 17-12-2014 58 of 81 CBI Vs. Vivek Sood & Ors.
evidence, money would be received from the Bank, or that on this, Ramwati, who was residing at Nand Nagri and with whom he had family relation, was prepared for giving evidence and signing the documents, or that Kirpal Singh also promised that for giving evidence and after receipt of money from the Bank, Ramwati would get Rs. 500/- to Rs. 1000/-, or that with regard to the above work, he went for the first time alongwith Kirpal Singh and Ramwati to the office of Shafique-Ur-Rehman near Moolchand flyover where Shafique-Ur- Rehman was present, or that there Kirpal Singh introduced him to Niranjan, and it was his first meeting with Shafique-Ur-Rehman and Niranjan or that after talking about the work, Shafique-Ur-Rehman told that the work would not be done on that day and that all of them would return, or that on this, he along with Ramwati came back in an Auto, or that Shafique-Ur-Rehman had given Rs 50/- as fare of Auto or that Kirpal Singh had stayed back. He deposed that he had not stated as above to the CBI.
18.5 PW 26 Sh. Babu Lal further denied that a few days after the above incident in the month of Aug. 98, at the instance of Kirpal Singh, he along with Ramwati went to Nizamuddin Bus Stand by bus, where Kirpal Singh met them, or that he told them that on that day work would be done and he called Shafique-Ur-Rehman by calling him on telephone, or that after sometime Shafique-Ur-Rehman came with Niranjan in his black colour Contessa Car which he was driving, or that he, Ramwati, Kirpal Singh, Niranjan and Shafique-Ur-Rehman went in that car towards Mehrauli and reached Chatarpur Branch of Dena Bank at about 11-11.30 a.m., or that he kept on sitting in the car whereas Kirpal Singh, Shafique-Ur-Rehman, Niranjan CBI Case No. 21/12 17-12-2014 59 of 81 CBI Vs. Vivek Sood & Ors.
and Ramwati got down and went inside the Bank and came back after half an hour, or that from there, all of them came to Mool Chand Flyover in the car, or that he and Ramwati got down there whereas, Shafique-Ur-Rehman, Niranjan and Kirpal Singh went towards office of Shafique-Ur-Rehman, or that Shafique-Ur-Rehman gave them Rs.50/- as Auto fare and he along with Ramwati came back to their house, or that on the way, Ramwati told him that she has signed on certain documents in the Bank but she did not tell as to on what papers her signatures were obtained, or that for the said work, no money was paid to him or Ramwati, or that on asking Kirpal Singh, he had said that the LC had been cancelled and no money had been received from the Bank, or that in this manner, Ramwati was not given any money by Kirpal Singh for giving evidence. He deposed that he had not stated as above to the CBI. To the suggestion that he had told CBI that he was doing the business of property dealing and was residing at 25/3, Amar Vihar, Karawal Nagar, Delhi, he stated that he had told them that he was residing at Chauhan Pur, Karawal Nagar, Delhi.
18.6 PW 25 Sh. A.K. Singh has deposed about recording statement. Mark PW26/1 of PW 26 Sh. Babu Lal. It is well settled that statement u/s 161 Cr. P.C. is not a substantial piece of evidence. There is no other evidence against accused No. 3, Shafique-Ur-Rehman to connect him with any conspiracy. Both PW 4 Sh. Anuj Kumar Beotra and PW 5 Sh. V.P. Aneja have testified that they had given valuation report in this case at the request of Sh. Ravinder Malik. It is considered that evidence of PW3 Sh. L.K. Bansal is not sufficient to hold that accused No. 3, Shafique-Ur-Rehman was a party to CBI Case No. 21/12 17-12-2014 60 of 81 CBI Vs. Vivek Sood & Ors.
criminal conspiracy to cheat Dena Bank.
19.1 So far as the role of accused No. 4, Kirpal Singh is concerned, it appears that the prosecution is relying only upon PW 26 Sh. Babu Lal.
19.2 As earlier stated, this witness has denied having given any statement to CBI. He has also denied various suggestions given by Ld. Special P.P. No other evidence had been led by prosecution against accused No. 4, Kirpal Singh. Prosecution has only been able to prove that accused No. 4, Kirpal Singh and PW 26 Sh. Babu Lal were residing in the same house. However, this evidence, per-se, cannot lead to the inference that accused No. 4, Kirpal Singh was a party to any conspiracy to cheat Dena Bank. It is well settled that statement u/s 161 Cr. P.C. is not a substantial piece of evidence. It is, therefore, considered that there is no reliable evidence to connect accused No. 4, Kirpal Singh with criminal conspiracy to cheat Dena Bank.
20.1 It is pertinent to note that in the body of the forged perpetual lead deed dated 17-08-1968, Ex.PW6/12, many details have been filled in handwriting, inter-alia, at points Q-56 to Q-62, Q-64, Q-70 to Q-73, Q-75 and Q-79 to Q-86.
20.2 PW 25 Sh. A.K. Singh has deposed about obtaining specimen writing/signatures of accused No. 5, Niranjan Vasishtha, Mark S-31 to S-73, Ex.PW18/P-1 to Ex.PW18/P-43 on 24-03-2001 in presence of Ct. Kishor CBI Case No. 21/12 17-12-2014 61 of 81 CBI Vs. Vivek Sood & Ors.
Kumar. During his cross - examination on behalf of accused No. 5, Niranjan Vasishtha, he has denied the suggestion that he has not obtained specimen signatures of accused No. 5, Niranjan Vasishtha. PW 25 Sh. A.K. Singh had further deposed about letter dated 11-05-2001, Ex.PW25/F (colly) written by Sh. Sanjay Awasthi, SP, CBI to GEQD, Shimla vide which specimen writings/ signatures, questioned documents containing questioned writing/ signatures and the questionnaire prepared by IO were sent for examination and opinion. He also stated that opinion, Ex. PW18/Q of Handwriting Expert was obtained vide letter dated 08-08-2001, Ex. PW18/S of Sh. R.K. Jain, Deputy GEQD, Chandigarh addressed to SP, CBI. From the testimony of PW 25 Sh. A.K. Singh, it has also transpired that accused No. 5, Niranjan Vasishtha was neither arrested nor taken on police remand in this case but he was arrested in RC 3/2000 relating to Swati Fine Jewellery. He had interrogated the said accused in this case. He had not taken permission from the Court for interrogating accused No. 5, Niranjan Vasishtha while he was in custody.
20.3 PW 18 Dr. Ravinder Sharma has deposed about receipt of documents in this case in the laboratory through SP, CBI, SIU-VIII, New Delhi letter 3910 dated 11-05-2001 including the questioned documents i.e. Q-46 to Q-59, Q-59/1, Q-60 to Q-86 on Ex.PW6/12 and specimen writings S-31 to S-73, Ex.PW18/P-1 to Ex.PW18/P-43 of Sh. Niranjan Vasishtha. He has also deposed about carefully and thoroughly examining the documents of this case and coming to the conclusion, inter-alia, that the writing in the enclosed portions stamped and marked Q-56 to Q-62, Q-64, Q-70 to Q-73, Q-75, Q-79 CBI Case No. 21/12 17-12-2014 62 of 81 CBI Vs. Vivek Sood & Ors.
to Q-86 and S-31 to S-73 have been written by one and the same person. He also stated about his opinion, Ex.PW18/Q and the detailed reasons, Ex. PW18/R in support of the opinion. He further stated about sending the opinion vide letter dated 08-08-2001, Ex.PW18/S. 20.4 In his reasons, Ex.PW18/R, with respect to writing/signatures of accused No. 5, Niranjan Vasishtha, PW 18 Dr. Ravinder Sharma has stated, " My opinion that the writings in the enclosed portion stamped and marked Q56 to Q62, Q64, Q70 to Q73, Q75, Q79 to Q86 and S31 to S73 have been written by one and the same person, is based upon the cumulative consideration of the similarities both in the general and individual writing characteristics occurring between them.
Both the questioned and specimen writings are written freely, show natural variations and are consistent among themselves. The questioned and specimen writings agree in general writing habits such as movement, skill, speed, line quality, relative size and proportion of letter, nature of commencing and terminating strokes, alignment, slant, simplifications, spacing etc. Both questioned and specimen writings also agree in the minute and inconspicuous details of formation of characters and their combinations, some of such similarities in the individual writing habits are: manner of execution of letter 'd' with nature and location of commencement, body oval part and manner of linking with vertical staff and finish; execution of letter 'A' with nature and movement in the formation of body part; execution of letter 'k' with nature and relative location of body part and finish; nature and relative location of formation of medial diagonal stroke of letter 'N'; nature of formation CBI Case No. 21/12 17-12-2014 63 of 81 CBI Vs. Vivek Sood & Ors.
of curvature in the execution of letter 'E'; peculiar nature of commencement of letter 't' with nature of putting 't-crossing'; nature of commencing and terminating stroke in the execution of letter 'm'; manner of linking letters 'E' and 'i' in the word 'Eight', letters 'S' and 'i' in the word 'Sixty', letters 'd' and 'i' in the word 'Addi', letters 'T' and 'h' in the word 'Thirty, Thousand', letters 'n' and 'e' in the word 'nine', letters 'o', 'u' and 's' in the word 'thousand', letters 's' and 'i' and 'a' and 'l' in the word 'Residential', letters 'n' and 'g' in the word 'Ring', letters 'v' and 'e' in the word 'five', letters 'y' 'o' and 't' in the word 'Jyotsana' were observed similar with similar variation; nature and movement of stroke in the execution of commonly occurring figures, such as '8', '4', '1', '9', '7', '3' etc and manner of execution of commonly occurring words such as 'August', 'Sixty', 'Delhi, 'one', 'for', 'Smt', 'I Chand' 'ampersand' etc were also observed similar with similar variation; nature and movement of formation of letter 'H' with peculiar nature of linking medial diagonal stroke with second vertical stroke; nature and movement in the execution of letter 'r' with commencement, body part and finish; peculiar nature of commencing and terminating stroke of letter 'T'; manner of execution of letters 'p', 'f', 'b', 'h', 'e', 'g' etc were also observed similar with similar variation. There is no divergence between questioned and specimen writings. There is no sign of limitation in the production of questioned writings. The aforesaid similarities between questioned and specimen writings in the writing habits are significant and sufficient and will not accidentally coincide in the writings of two different persons and when considered collectively lead me to the aforesaid opinion of common authorship." (emphasis supplied).
CBI Case No. 21/12 17-12-2014 64 of 81 CBI Vs. Vivek Sood & Ors. 20.5 During his cross-examination on behalf of accused No. 5,
Niranjan Vasishtha, PW18 Dr. Ravinder Sharma deposed that he had done inter se comparison of the questioned writing Mark Q-56 to 62, Q-64, Q-70 to Q-73, Q-75, Q-79 to Q-86 amongst themselves and also compared the same with the supplied specimens Mark S-31 to S-73. The above questioned writings have been written by one person. He denied that the questioned writing Mark Q-80, Q-81 & Q-85 have not been written by the person whose specimen writing is S-31 to S-73. He further stated that he had done inter se comparison of the questioned writing, " I Chand" Mark Q-83, Q-84, Q-86 and rest of the questioned writing, Mark Q-56 to Q-62, Q-64, Q-70 to Q-73, Q-75, Q-79 to Q-82, Q-85 amongst themselves and also compared the same with the supplied specimen writing, Mark S-31 to S-73 and that the above questioned writings have been written by one person. The same has been mentioned in his opinion, Ex.PW-18/Q and the reason, Ex.PW-18/R. He denied the suggestion that it is not written by the same person. To the question as to how he has concluded that letter 'M' in questioned writing Mark Q-56, letter 'D' in questioned writing Mark Q-56 & Q-73, letter 'B' in questioned writing Mark Q-71, digit '2' in questioned writing Mark Q-58 & Q-71, letter 'J' in questioned writing Mark Q-61 & Q-72, letter 'K' in questioned writing Mark Q-70 & Q-73, digit '5' in questioned writing Mark Q-72, letter 'R' in questioned writing Mark Q-72 & Q-73, letters 'L', 'w', 'u' & 'c' in questioned writing Mark Q-73, has been written by the writer of the specimen writing Marked S-31 to S-73, PW18 Dr. Ravinder Sharma replied that on inter-se comparison of the above letters and digits with the said letters and digits in the supplied specimens, he has concluded that the same have been written CBI Case No. 21/12 17-12-2014 65 of 81 CBI Vs. Vivek Sood & Ors.
by one person, on the basis of their commencement, nature of curvature and movement of formation of strokes in the execution of body part and their finishing strokes. He denied that these have not been written by the same person.
20.6 PW 18 Dr. Ravinder Sharma admitted that pen pressure, pen hold/position, shading are also the writing characteristics in the science of handwriting comparison. However, during the comparison and examination, he had observed the said characteristic features but these words have not been specifically mentioned in his reasoning although the same are covered in " etc" . He also denied that in his reasons, Ex. PW18/R, he has not given any reason as to how he could conclude that the formation of letters 'p', 'f', 'b', 'h', 'e', 'g' in the questioned writing mark Q-56 to Q-62, Q-64, Q-70 to Q-73, Q-75, Q-79 to Q-86, formation of combination of letters 'E' & 'i' in word 'Eight', formation of combination of letters 'S' & 'i' in word 'Sixty', formation of combination of letters 'd' & 'i' in word 'Addi', formation of combination of letters 'T' & 'h' in word 'Thirty', formation of letters 's', 'n', 'e', 'l' in word 'residential', formation of letters 'n' and 'g' in word 'ring', formation of letters 'v' and 'e' in word 'five', formation of letters 'y', 'o' and 't' in word 'Jyotsana', formation of digits '8', '4', '1', '9', '7' & '3', formation of words " August" , " Sixty" , " Delhi" , " One" , " for" , " Smt." , " I Chand" and " ampersand" , in the questioned writing and the specimen writings mark S-31 to S-73 are similar. He stated that the same is mentioned in his reasons Ex.PW-18/R. 20.7 Further, PW 18 Dr. Ravinder Sharma denied that science of CBI Case No. 21/12 17-12-2014 66 of 81 CBI Vs. Vivek Sood & Ors.
handwriting comparison is not as perfect as fingerprint science and voluntarily stated that a definite opinion can be expressed if suitable and sufficient data for comparison are supplied. By suitable and sufficient data, he means that the specimen writings are obtained of the same words and digits as the questioned writings. He further voluntarily stated that in the present case suitable and sufficient data were supplied. He also denied that he had not mentioned sufficient reasons in support of his observations in reasoning Ex.PW-18/R or that he had not followed the basic principle of science of handwriting comparison correctly while forming his opinion in Ex. PW-18/Q and reasoning Ex.PW-18/R. He further denied that the questioned writing mark Q-56 to Q62, Q-64, Q-70 to Q73, Q-75, Q-79 to Q-86 are not written by the writer of the specimen writing S-31 to S-73.
20.8 It has been argued by Ld. counsel for accused No. 5, Niranjan Vasishtha that since accused was neither arrested nor taken on remand in this case and no permission was taken from the Court to obtain his specimen handwriting/ signatures, the same cannot be used in evidence since it is illegally obtained evidence and further, that it is not safe to rely upon the testimony of a handwriting expert unless it is corroborated.
20.9 On the other hand, Ld. Special P.P. contended that even illegally obtained evidence is admissible and that opinion of handwriting expert even if, uncorroborated is sufficient to convict an accused.
20.10 The argument of the accused appears to be that since he was CBI Case No. 21/12 17-12-2014 67 of 81 CBI Vs. Vivek Sood & Ors.
not arrested in this case, his specimen signatures/handwriting could not have been obtained in this case. It does not mean that the same were not obtained at all. The question of admissibility of illegally obtained evidence has been dealt by the Hon'ble Supreme Court in R.M. Malkani Vs. State of Maharashtra, (1973) 1 SCC 471 and State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820. In R.M. Malkani Vs. State of Maharashtra (Supra), it was held that even illegally obtained evidence was admissible in criminal trials. The Hon'ble Apex Court held, " There is warrant for the proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. See Jones V. Owen (1870) 34 JP 759. The Judicial Committee in Kumar, Son of Kanju V. R [1955 1 All E.R. 236] dealt with the conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches. The Judicial Committee held that the evidence was rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution. It is that the Judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence." (emphasis supplied) CBI Case No. 21/12 17-12-2014 68 of 81 CBI Vs. Vivek Sood & Ors.
20.11 Relying upon the above judgment, in State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru, (Supra), the Hon'ble Supreme Court held that the non-compliance or inadequate compliance with the Telegraph Act does not per se effect the admissibility of the evidence collected. It was further held that the legal position regarding the question of admissibility of the tape recorded conversation illegally collected or obtained is no longer res integra in view of the decision in R.M. Malkani Vs. State of Maharashtra (Supra).
20.12 Further, there is no law that opinion of a handwriting expert can never be acted upon unless substantially corroborated. In this regard, reference can be made to Murari Lal vs. State of Madhya Pradesh (supra).
20.13 Generally, it is difficult to obtain direct evidence to prove as to who had forged a document pursuant to a conspiracy. In such cases, opinion of an expert witness like Handwriting Expert is the only evidence available. In the present case, for deciding whether the document in question has been forged by accused No. 5, Niranjan Vasishtha, the clinching evidence has to be opinion of a Handwriting Expert. Accused No. 5, Niranjan Vasishtha has not denied his specimen signature, Ex.PW18/P-1 to Ex.PW18/P43. The questioned writing on the perpetual lease deed, Ex.PW6/12 which is purported to be of accused No. 5, Niranjan Vasishtha is available at a large number of places. The writings consist of a variety of letters/digits/words which were available for comparison by the GEQD. When the number of CBI Case No. 21/12 17-12-2014 69 of 81 CBI Vs. Vivek Sood & Ors.
questioned writings is large, the chances of error by Handwriting Expert are minimised/eliminated. In this case, the GEQD had come to the conclusion that the questioned writings at points Q-56 to Q-62, Q-64, Q-70 to Q-73, Q-75, Q-79 to Q-86 and the specimen writings S-31 to S-73 have been written by one and the same person. There is no reason to disbelieve PW 18 Dr. Ravinder Sharma. Therefore, it can be safely held that the aforesaid questioned writings have been written on the forged lease deed, Ex. PW6/12 by accused No. 5, Niranjan Vashisht. The circumstances brought on record lead to the inference that he was party to the conspiracy to cheat SBBJ.
21.1 With regard to the role of accused No. 6, Ramwati, PW 26 Sh. Babu Lal has testified that he knew accused No. 6, Ramwati since she is mother of his friend Deepak Babu. He never had any conversation with accused No. 6, Ramwati regarding any work in the bank. He had never gone to bank with accused No. 6, Ramwati. This witness was cross- examined by Ld. Special P.P. During his cross - examination, he denied having given any statement to CBI. As earlier noted, he also denied various suggestions given to him by Ld. Special P.P. on the lines of his purported statement u/s 161 Cr.P.C.
21.2 It is pertinent to note that signatures of Mrs. Vimal Jyotsana are alleged to have been forged as under :-
a) at points Q 34 on statement showing assets and liabilities of the guarantor, Ex.PW6/8,
b) at point Q 35 on the certificate, Ex.PW6/9, CBI Case No. 21/12 17-12-2014 70 of 81 CBI Vs. Vivek Sood & Ors.
c) at points Q 36 to Q 44 on Letter of Guarantee, Ex.PW6/10,
d) at point Q 45 on General letter of lien and set off for borrowing arrangements, Ex.PW6/11, and
e) At points Q 46 to Q 55 on Perpetual Lease Deed dated 17-08-1968, Ex.PW6/12.
21.3 Ex.PW6/8 to Ex.PW6/11 are attested true photocopies of the originals. During cross-examination of PW 6 Sh. Ajit Prasad Jain, these documents have not been challenged. When the evidence of PW 6 Sh. Ajit Prasad Jain regarding the above documents was put to accused No. 6, Ramwati during her statement u/s 313 Cr.P.C., she stated that she does not know anything about the same. PW 6 Sh. Ajit Prasad Jain has, inter-alia, deposed that letter of guarantee, Ex.PW6/10, which bears signatures of guarantor at points A on each sheet and General Letter of Lien, Ex.PW6/11 which bears signatures of guarantor at point A were executed on 29-08-1998.
21.4 During his cross-examination on behalf of accused No. 1, Vivek Sood and accused No. 2, Nandita Bakshi, PW 6 Sh. Ajit Prasad Jain testified that he was present in the branch at the time of signing of the documents by the borrowers. He does not recall if any other person apart from the borrower or guarantor visited the bank for the processing of the loan. He also stated that the guarantee form, Ex.PW6/D had been filled up by him and most of the documents had been filled up by him. From the above testimony, it is clear that the purported guarantor had, appearead in the bank for execution of loan documents.
CBI Case No. 21/12 17-12-2014 71 of 81 CBI Vs. Vivek Sood & Ors. 21.5 PW 25 Sh. A.K. Singh has deposed about obtaining specimen
writing/signatures of accused No. 6, Ramwati, Mark S-16 to S-30, Ex.PW18/O-1 to Ex.PW18/O-15 on 25-03-2001 in presence of accused No. 7, Ram Gopal Pareek. During his cross - examination on behalf of accused No. 6, Ramwati, he denied that no specimen signatures of accused No. 6, Ramwati were obtained. He also denied that accused No. 6, Ramwati had not forged any document. When the above evidence was put to accused No. 6, Ramwati during her statement u/s 313 Cr.P.C., she stated that she does not remember.
21.6 PW 18 Dr. Ravinder Sharma has deposed about receipt of questioned documents, i.e. inter-alia, Q-34 to Q-55 on Ex.PW6/8 to Ex.PW6/12 and specimen writings S-16 to S-30, Ex.PW18/O-1 to Ex.PW18/O-15 of Smt. Ramwati. In his opinion, Ex.PW18/Q, PW 18 Dr. Ravinder Sharma has opined that the writings marked Q-34 to Q-55 and S 16 to S30 have been written by one and the same person. PW 18 was not cross- examined on behalf of accused No. 6, Ramwati. When the above evidence was put to accused No. 6, Ramwati during her statement u/s 313 Cr.P.C., she stated that she does not know anything about the same.
21.7 In his reasons, Ex. PW18/R with respect to writings/signatures of accused No. 6, Ramwati, PW 18 Dr. Ravinder Sharma has stated, "My opinion that the writings in the enclosed portion stamped and marked Q34 to Q55 and S16 to S30 have been written by one and the CBI Case No. 21/12 17-12-2014 72 of 81 CBI Vs. Vivek Sood & Ors.
same person, is based upon the cumulative consideration of the similarities both in the general and individual writing characteristics occurring between them.
Both the questioned and specimen writings are written freely, show natural variations and are consistent among themselves. The questioned and specimen writings agree in general writing habits such as movement, skill, speed, line quality, relative size and proportion of letter, nature of commencing and terminating strokes, alignment, slant, simplifications, spacing etc. Both questioned and specimen writings also agree in the minute and inconspicuous details of formation of characters and their combinations, some of such similarities in the individual writing habits are: manner of execution of Hindi letter 'Va', peculiar nature and location of commencement, nature and relative size and formation of body part and manner of its linking with vertical staff as well direction of finish with similar variation; commencement of letter 'Ma' with the nature and relative location of formation of body part, nature and location of medial body part with nature and location of formation of body loop and nature and location of terminal stroke were observed similar with similar variation; commencement of letter 'La' with nature and formation of body part and relative location of body shoulder and direction of finish; execution of letter 'Ja' with nature of its start, nature and relative size of vertical staff, nature and location of formation of body part and direction of terminal stoke; peculiar nature and location of formation of letter 'Ta'; commencement of letter 'Sa', nature and location of its upper body part and manner of formation of loop, nature and location of medial part with nature of linking to vertical stroke were observed similar with CBI Case No. 21/12 17-12-2014 73 of 81 CBI Vs. Vivek Sood & Ors.
similar variation; commencement of letter 'Na' with nature and location of body part, nature and relative location of vertical staff and finish' nature and movement of stroke in the execution of vowel sign of 'Eekar', 'Okar' and 'Aakar' were all observed similar with similar variation in the questioned and specimen. All the significant features as occurring in the questioned writings are found similarly exemplified at one or the other places in the specimen writings. During the process of comparison, I did not find any basic differences in the questioned and specimen writings. There is no divergence between questioned and specimen writings. There is no sign of limitation in the production of questioned writings. The aforesaid similarities between questioned and specimen writings in the writing habits are significant and sufficient and will not accidentally coincide in the writings of two different persons and when considered collectively lead me to the aforesaid opinion of common authorship" . (emphasis supplied).
21.8 It can be observed that the signature of Mrs. Vimal Jyotsana written in Hindi appear at 22 places on Ex.PW6/8 to Ex. PW6/12. When a large number of questioned writings are available for comparison and evaluation by the handwriting expert, the chances of error are minimised/ eliminated. In view of the aforesaid, it is considered that the questioned signatures of Mrs. Vimal Jyotsana written in Hindi on Ex.PW6/8 to Ex. PW6/12 have been forged by accused No. 6, Ramwati. The necessary implication of such forgery is that she was party to conspiracy and that she had cheated Dena Bank by impersonating as Mrs. Vimal Jyotsana.
CBI Case No. 21/12 17-12-2014 74 of 81 CBI Vs. Vivek Sood & Ors. 22.1 In this case, accused No. 7, Ram Gopal Pareek was the
sanctioning authority. During cross-examination of PW 9 Sh. Arvind Sinha who has given the search report, dated 19-08-1998, Ex.PW9/1, he testified that there were no instructions to him whether oral or in writing from Dena Bank, Chhatarpur Branch for giving the report in question.
22.2 PW 12 Sh. Rajesh Saigal has deposed that the account was convassed by Sh. R.G. Pareek, Sr. Manager. The loan amount was sanctioned by Sh. R.G. Pareek. He heard in the branch that the NOC for creation of the mortgage in favour of the bank was not given by the DDA. However, a letter was received from the DDA wherein NOC was received for creation of mortgage of the property offered as collateral security by the borrower. As the letter from the DDA was received on the very next day by the branch in favour of the borrower so everyone in the branch felt suspicious about it.
22.3 PW 15 Sh. Janak Kochhar, after seeing Ex. PW6/3, deposed that the accused has offered inventory bills and collateral securities for the purpose of advance working capital requirement. The details of collateral security is not mentioned in Ex.PW6/3. However, there is a bank note, Ex. PW6/6 of accused No. 7, Ram Gopal Pareek that property No. 122/B-4, Safdarjang Development Area, Residential Scheme, New Delhi belonging to Vimal Jyotsana valuing Rs. 93 lacs was shown as offered for equitable mortgage.
CBI Case No. 21/12 17-12-2014 75 of 81 CBI Vs. Vivek Sood & Ors. 22.4 It can be seen that while sanctioning the loan amount, accused
No. 7, Ram Gopal Pareek has in the proposal / memorandum for credit limits, mentioned that the firm has offered collateral security by way of equitable mortgage of property at 122/B-4, Safdarjang Development Residential Scheme, New Delhi belonging to Smt. Vimal Jyotsana. As per copy of statement showing personal assets and liability of guarantor, Ex/PW6/8, accused No. 7, Ram Gopal Pareek has verified the same. In his statement u/s 313 Cr. P.C., accused No. 7, Ram Gopal Pareek has not disputed the said document. There is no doubt that Smt. Vimal Jyotsana never stood as a guarantor for M/s Chanda Exports or accused No. 1, Vivek Sood. There is no explanation on behalf of accused No. 7, Ram Gopal Pareek as to how he has verified the statement showing personal assets and liabilities of a fake guarantor impersonating as Vimal Jyotsana. Verification of guarantor and her assets/liabilities is not a mere formality. It is also revealed that accused No. 7, Ram Gopal Pareek had not obtained creditworthiness of the borrower from other banks. From the evidence led on record, it is clear that accused No. 7, Ram Gopal Pareek had dishonestly accepted the forged financial statements and creditworthiness of the guarantor without actually verifying the same. He also failed to obtain proper valuation report of the property in question. The valuation was got done by the borrower since the matter was not referred to the valuer by the bank. The necessary implication of the aforesaid circumstances is that accused No. 7, Ram Gopal Pareek was a party to the criminal conspiracy and he had committed criminal misconduct.
23. It has also been argued on behalf of the accused persons that CBI Case No. 21/12 17-12-2014 76 of 81 CBI Vs. Vivek Sood & Ors.
on the same facts four FIRs i.e. RC No. 3E/2000, RC No. 4E/2000, RC No. 5E/2000 and RC No. 6E/2000, i.e. the present case, have been registered which is not permissible as per law laid down in T.T. Anthony Vs. State of Kerala and Others (supra). Ld. P.P submits that facts of all the four cases are different. Admittedly, the borrower companies/firms and the loan accounts are different in all the aforesaid four cases. Thus, the above contention of the accused persons is not tenable.
Conclusions 24.1 In view of the aforesaid discussions, it is considered that the prosecution has been able to prove beyond a reasonable doubt that,
a) Accused No. 1,Vivek Sood, accused No. 2, Nandita Bakshi, accused No. 5, Niranjan Vasishtha, accused No. 6, Ramwati and accused No. 7, Ram Gopal Pareek entered into an agreement to cheat Dena Bank, Chhatarpur Branch, New Delhi by dishonestly/ fraudulently inducing it to sanction various credit facilities i.e. PC (Hyp) of Rs. 10 lacs, FBP of Rs. 10 lacs and local LC of Rs. 5 lacs in favour of M/s Chanda Exports, a Proprietorship concern of accused No. 1, Vivek Sood on the basis of false/bogus/forged documents i.e. forged sale deed, Ex. PW 6/12, statement showing personal assets and liabilities of the guarantor, photocopy of which is Ex.PW6/8, Certificate, photocopy of which is Ex.PW6/9, Letter of guarantee dated 29-08-1998, photocopy of which is Ex.PW6/10, the general letter of lien and set off for borrowing arrangements, photocopy of which is Ex.PW6/11, copy of Form 3CB and Form 3CD, Mark PW 2/A, purportedly given by Goel & CBI Case No. 21/12 17-12-2014 77 of 81 CBI Vs. Vivek Sood & Ors.
Jolly, Chartered Accountants, letter/NOC dated 24-08-1998, Mark PW11/B, purportedly given by DDA and by misrepresenting that accused No. 6, Ramwati was Mrs. Vimal Jyotsana, owner of property No. B-4/122, Safdarjung Enclave, New Delhi and by using as genuine, the aforesaid documents, knowing or having reason to believe the same to be forged and by commission of criminal misconduct by the public servant i.e. accused No. 7, Ram Gopal Pareek.
b) Accused No. 7, Ram Gopal Pareek, being a public servant i.e. Senior Manager, Dena Bank, Chhatarpur Branch, New Delhi, by illegal means and/or abuse of his official position, obtained pecuniary advantage i.e. various credit facilities viz. PC (Hyp) of Rs. 10 lacs, FBP of Rs. 10 lacs and local LC of Rs. 5 lacs for accused No. 1, Vivek Sood and caused corresponding loss to Dena Bank, Chhatarpur Branch, New Delhi by sanctioning the loan proposal on the basis of forged documents and misrepresentation.
c) Accused No. 1, Vivek Sood deceived and dishonestly/ fraudulently induced Dena Bank, Chhatarpur Branch, New Delhi to sanction various credit facilities i.e. PC (Hyp) of Rs. 10 lacs, FBP of Rs. 10 lacs and local LC of Rs. 5 lacs in favour of M/s Chanda Exports of which he was Proprietor, on the basis of the aforesaid false/bogus/forged documents and by misrepresenting that accused No. 6, Ramwati was Mrs. Vimal Jyotsana, owner of property No. 122, Block No. B-4, Safdarjang Development Residential Scheme, (Safdarjang Enclave), New Delhi and he also used the aforesaid documents as genuine, knowing or having reason to believe the same to be forged.
CBI Case No. 21/12 17-12-2014 78 of 81 CBI Vs. Vivek Sood & Ors. d) Accused No. 6, Ramwati impersonated as Mrs. Vimal Jyotsana, owner of property No. B-4/122, Safdarjung Enclave, New Delhi and she
forged the documents i.e. sale deed Ex. PW6/12, statement showing personal assets and liabilities of the guarantor, Ex. PW6/8, certificate Ex. PW6/9, letter of guarantee dated 29-08-1998, Ex. PW6/10 and general letter of lien and set off for borrowing arrangements, Ex.PW6/11 and she also used the aforesaid forged documents as genuine knowing or having reasons to believe the same to be forged. She also deceived and dishonestly/fraudulently induced Dena Bank, Chattarpur Branch, New Delhi to sanction various credit facilities i.e. PC (Hyp) of Rs. 10 lacs, FBP of Rs. 10 lacs and local LC of Rs. 5 lacs in favour of Chanda Exports, of which accused No. 1, Vivek Sood was the Proprietor, on the basis of aforesaid forged documents and misrepresentation and thereby cheated the said bank.
24.2 However, the prosecution has not been able to prove beyond a reasonable doubt that accused No. 3, Shafique-Ur-Rehman or accused No. 4, Kirpal Singh entered into any conspiracy with the remaining accused persons to cheat Dena Bank.
24.3 The points at para 9 are decided accordingly.
24.4 In view of the aforesaid, it is held that
a) Accused No. 1, Vivek Sood, accused No. 2, Nandita Bakshi, accused No. 5, Niranjan Vashisht, accused No. 6, Ramwati and accused No. 7, Ram CBI Case No. 21/12 17-12-2014 79 of 81 CBI Vs. Vivek Sood & Ors.
Gopal Pareek are guilty for commission of offence punishable u/s 120-B r/w sections 419, 420, 467 and 471 r/w sections 467 and 468 IPC, and section 13 (2) r/w section 13 (1) (d) of the PC Act and they are convicted accordingly.
b) Accused No. 7, Ram Gopal Pareek is also guilty for commission of offences punishable under section 13 (2) r/w section 13 (1) (d) of the PC Act and he is convicted accordingly.
c) Accused No. 1, Vivek Sood is also guilty for commission of offences punishable under (i) section 420 IPC, and (ii) section 471 IPC r/w sections 467/468 IPC and he is convicted accordingly.
d) Accused No. 6, Ramwati is also guilty for commission of offences punishable under (i) section 419 IPC, (ii) section 420 IPC, (iii) section 467 IPC and (iv) section 471 IPC r/w sections 467/468 IPC and she is convicted accordingly.
e) Accused No. 3, Shafique-Ur-Rehman and accused No. 4, Kirpal Singh are acquitted of the charge u/s 120B IPC r/w sections 419, 420, 467 and 471 r/w sections 467/468 IPC, and section 13 (2) r/w section 13 (1) (d) of the PC Act.
25. The personal bonds of accused No. 3, Shafique-Ur-Rehman and accused No. 4, Kirpal Singh are cancelled and their sureties are discharged. They are directed to furnish personal bonds in the sum of Rs. 50,000/- each with one surety each in the like amount in terms of section 437-A Cr.P.C.
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26. Let the convicts be heard on the point of sentence on 18-12-2014.
Announced in the Open Court today on 17th Day of December, 2014.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi
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