Delhi District Court
Cbi vs . 1. Rajesh Kohli, on 7 December, 2012
1
CBI case . No.24/11
IN THE COURT OF SHRI N. K. KAUSHIK
SPECIAL JUDGE, PC ACT, CBI,
DWARKA COURTS, NEW DELHI
CBI Case No. : 24/11
Date of Institution : 27.01.2003
Date on which Judgment Pronounced : 20.11.2012
Decision : Conviction
CBI case no. 24/11
RC no. 1(E)/2001/EOWI/ New Delhi
In the matter of :
CBI versus. 1. Rajesh Kohli,
The then Divisional Manager,
National Insurance Ltd.,
DOX, New Delhi.
R/o 187, Pragati Apartment,
Club Road, Paschim Vihar,
New Delhi.
2. Vijay Dayal,
S/o Sh. Padam Dayal,
R/o C2/159, West Enclave,
Pitampura, Delhi34.
3. Arvind Kumar Sharma,
S/o Late Sh. Shambhu
Nath Sharma,
R/o GH2/122B,
Ankur Apartments,
Paschim Vihar, New Delhi63.
4. Adarsh Agarwal,
Manager,
M/s Commercial Syndicate,
CBI vs. Rajesh Kohli & Ors. 1 of 99 pages
2
CBI case . No.24/11
3846, Churiwalan, Delhi6.
.............Accused persons
JUDGMENT
1. This is a corruption case under Prevention of Corruption Act, 1988, registered by the CBI, relating to the fraudulent insurance claim wherein consignor, consignee and transporter were fake and nonexistent at the given address, the survey and recovery were bogus and fake, fabricated and forged documents were used, by the accused persons, in pursuance to an organized systematic and fraudulent criminal conspiracy. All the accused persons acted in unison.
2. The case set up by the prosecution is that marine policy no. 21451772 for Rs.7,28,000/, was issued to M/s Vinayak Polymers on 06.10.97, pertaining to the dispatch of copper binding wire to M/s Globe Electricals, 68, Rama Building, New Jalpaiguri, West Bengal, vide GR no. 10350, dated 13.10.97 through M/s Bhatinda Rajasthan Transport Co. Opp. Telephone Exchange, UP Border, CBI vs. Rajesh Kohli & Ors. 2 of 99 pages 3 CBI case . No.24/11 Ghaziabad. That the said policy was booked under agency no. 10037.
3. It is further alleged that in this regard, one Tewari was enquired, who disclosed that he had nothing to do with the said insurance and also that he used to give his commission on said insurance to accused Rajesh Kohli, the then Divisional Manager, in cash.
4. It is further alleged that the letter, vide which Claim Intimation was sent, was not found, but, the claim form was available.
5. It is further alleged that Sh. Atish Pathak, the then Assistant Officer had written to M/s Vinayak Polymers, asking the documents required for the processing of the claim.
6. It is further alleged that during investigation, M/s Bhatinda Rajasthan Transport Co., the carriers, denied having issued the GR, which was used in this case. That it was revealed from Siliguri Office that the Consignee M/s CBI vs. Rajesh Kohli & Ors. 3 of 99 pages 4 CBI case . No.24/11 Globe Electricals, did not exist and also that there was no such address at New Jalpaiguri.
7. It is further alleged that the claim documents, which were required for processing of the claim, were submitted by the Insured to the Divisional Office, which were received by accused, Rajesh Kohli, the then Divisional Manager.
8. It is further alleged that accused Vijay Dayal was found to be the owner of the claimant, M/s Vinayak Polymers. That the said fact could be established from records of the 'Vaish Cooperative Adarsh Bank Ltd', Paschim Vihar, New Delhi.
9. It is further alleged that Vinay Loiwal, the actual owner of the said firm when was contacted, disclosed that he had surrendered the sales tax number of the said firm long back and that he had nothing to do with the said claim at the CBI vs. Rajesh Kohli & Ors. 4 of 99 pages 5 CBI case . No.24/11 relevant time. It also revealed during investigation that accused Vijay Dayal had been the class fellow of Vinay Loiwal and that he could have fraudulently used the name of M/s Vinayak Polymers, earlier owned by Vinay Loiwal.
10. It is further alleged that the claim note was prepared by Sh. Vinod Lal, the then Assistant and Sh. G.C. Vij, the then Assistant Officer, and was approved by accused Rajesh Kumar Kohli, the then Divisional Manager for Rs.2,29,003/. That in this regard, Sh. Vinod Lal had attached a note in the claim note itself that the case was being processed, on the basis of the submitted documents, as per directions of the accused, Rajesh Kohli, the then Divisional Manager.
11. It is further alleged that M/s Commercial Syndicate was appointed as a recovery agent, who deposited Rs. 22,000/, as recovery. That in this regard, accused Adarsh Agarwal of Commercial Syndicate disclosed that they could not trace the transporter, as the given address was CBI vs. Rajesh Kohli & Ors. 5 of 99 pages 6 CBI case . No.24/11 incomplete. Accused Adarsh Aggarwal, however, claimed and collected the commission for the said recovery.
12. It is further alleged that when address of M/s Vinayak Polymers was visited, where, Sh. Manish Maheshwari and Anil Maheshwari were found but they could not give any satisfactory reply.
13. It is further alleged that, thereafter, accused Rajesh Kohli, the then Divisional Manager had instructed accused Adarsh Agarwal not to contact the Insured. That they then received a call, purportedly, from the alleged transporter's office, who offered only 10% as a recovery amount but accused Adarsh Agarwal declined, as it was very less.
14. It is further alleged that subsequently, on the advise of accused Rajesh Kohli, the then Divisional Manager, somebody purportedly, from transporter's office delivered cheque for Rs.22,000/, which was deposited in the office of NIC.
CBI vs. Rajesh Kohli & Ors. 6 of 99 pages 7 CBI case . No.24/11
15. The case of the prosecution, thus, in brief, is that during the year 19971998, at New Delhi and other places, all accused persons entered into a criminal conspiracy by having agreed to do an illegal act i.e. to cheat National Insurance Company Ltd., Divisional OfficeX, New Delhi, by fraudulently inducing it to sanction claim insurance in the name of M/s Vinayak Polymers, 1716, Gali Piauwali, Dariba Chandni Chowk, Delhi, under the proprietorship of accused Vijay Dayal, to the extent of Rs. 2,29,003/, on the basis of forged, bogus & false documents i.e. invoice, GR, Survey Report etc.
16. Further, accused Vijay Dayal, in furtherance of the aforesaid criminal conspiracy, obtained Marine Policy No.23451772/97 for sending consignment of Copper Building Wire from Delhi to M/s Globe Electricals, 68 Rama Building, New Jalpaiguri, West Bengal, vide Receipt No.10350 of M/s Bhatinda Rajasthan Co., Ghaziabad and that accused Vijay Dayal, proprietor of M/s Vinayak Polymers reported to NIC Ltd. DOX, New Delhi, about the CBI vs. Rajesh Kohli & Ors. 7 of 99 pages 8 CBI case . No.24/11 short delivery of the consignment and that accused Rajesh Kumar Kohli, approved the claim of Rs.2,29,003/ in favour of M/s Vinayak Polymers on the basis of false, forged & bogus documents and that accused Vijay Dayal, received the claim amount, through cheque and the amount was deposited in the account No.410 of M/s Vinayak Polymers, which was introduced by accused, Arvind Kumar Sharma, who had the knowledge that the accused Vijay Dayal was not the actual owner of M/s Vinayak Polymers and that accused, Adarsh Kumar Aggarwal of M/s Commercial syndicate was appointed as Recovery Agent in this case and he deposited the recovery amount of Rs.22,000/ without actually recovering from the transporter and received recovery commission fee, for which accused Adarsh Kumar Aggarwal was not entitled to as no recovery was, in fact, effected. That the accused Arvind Kumar Sharma, who was not a recovery agent got issued cheque for the deposit of the recovery amount (which was a fake recovery) in the claim relating to M/s Vinayak Polymers. All accused persons, thus, are alleged to have committed offences punishable, under section 120(B) read with 420, CBI vs. Rajesh Kohli & Ors. 8 of 99 pages 9 CBI case . No.24/11 467, 468, 471, IPC and section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988.
17. Further, during the aforesaid period at Delhi and other places accused Rajesh Kohli, being a public servant in the capacity of Divisional Manager, NIC Ltd., Divisional OfficeX, New Delhi, dishonestly abusing his official position, induced NIC, DOX and sanctioned claim amount of Rs.2,29,003/ in favour of M/s Vinayak Polymers, on the basis of false, forged and bogus documents and thereby enabled the accused Vijay Dayal, Proprietor of M/s Vinayak Polymers, to obtain pecuniary advantage to the tune of Rs.2,29,003/ and corresponding loss to the NIC Ltd., Divisional OfficeX, New Delhi. He, thus, is alleged to have committed an offence, punishable under section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, also.
18. Further, during the aforesaid period, at Delhi, and other places, accused Vijay Dayal, dishonestly induced DOX to sanction insurance claim of Rs.2,29,003/ in CBI vs. Rajesh Kohli & Ors. 9 of 99 pages 10 CBI case . No.24/11 favour of M/s Vinayak Polymers on the basis of false, bogus & forged documents i.e. invoice, survey report, G. R. etc. and received cheque of claim amount, which was duly credited in the A/C No. 410 of M/s Vinayak Polymers, of which he was the Proprietor. The said accused, thus, is alleged to have committed an offence, punishable under section 420 IPC, also.
19. Further, during the aforesaid period, at Delhi, and other places, accused Vijay Dayal fraudulently used false, forged & bogus documents i.e. invoice, G. R. Survey Report, etc. as genuine for the purpose of cheating knowing fully well that these documents were forged, false & bogus. The said accused, thus, is alleged to have committed an offence punishable under section 471 read with 467 and 468 IPC, in addition.
20. Further, during the aforesaid period, at Delhi, and other places, accused Arvind Kumar Sharma, issued cheques for deposit of recovery amount and recovery fee from his A/c No. 4577, in connivance with accused persons CBI vs. Rajesh Kohli & Ors. 10 of 99 pages 11 CBI case . No.24/11 namely, Vijay Dayal, Adarsh Kumar Agarwal and Rajesh Kumar Kohli, and which was deposited as fake recovery amount regarding the claim of M/s Vinayak Polymers. The said accused, thus, is alleged to have committed an offence punishable, under section 468 IPC.
21. Further, during the aforesaid period at Delhi and other places, accused Adarsh Kumar Agarwal submitted false recovery report on behalf of M/s Commercial Syndicate and claimed recovery fee in the claim of M/s Vinayak Polymers, for which he was not entitled. The said accused, thus, is alleged to have committed an offence, punishable under section 468 IPC.
22. Primafacie, offences under section 120B read with sections 420, 467, 468, 471 IPC and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 were made out against all the accused persons and substantive offence under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 was made out against accused Rajesh Kumar Kohli, under CBI vs. Rajesh Kohli & Ors. 11 of 99 pages 12 CBI case . No.24/11 sections 420 and 471 read with sections 467 & 468 IPC against accused Vijay Dayal and under section 468 IPC against accused persons namely, Arvind Kumar Sharma and Adarsh Agarwal, were made out.
23. Charge, accordingly, was framed against the accused persons, to which, they pleaded not guilty and claimed trial.
24. The prosecution, in order to substantiate its claim and contentions, examined 19 witnesses, in all.
25. Thereafter, the accused persons were examined under section 313 Cr. P.C.
26. The defence has preferred to examine three witnesses, including accused persons Rajesh Kohli and Adarsh Aggarwal, in support of their defence.
27. The prosecution has contended that the case of the prosecution has been duly proved, in view of the CBI vs. Rajesh Kohli & Ors. 12 of 99 pages 13 CBI case . No.24/11 material that has appeared and has been proved on record. That the prosecution witnesses, documents and circumstances, placed and proved on record, have proved the prosecution's case beyond any pale of doubt.
28. On behalf of the defence, on the other hand, it has been stated that the prosecution has failed to prove its case.
29. The defence, has also filed written submissions, which appear on record of this case.
30. At the very outset, it is to be noted that there is no dispute over the propositions of law enunciated in the case law, cited by the defence. The same, however, do not help or support the accused persons, in any manner, in view of the circumstance, evidence and documents available on record.
31. I have carefully gone through the entire relevant material appearing on record and have given CBI vs. Rajesh Kohli & Ors. 13 of 99 pages 14 CBI case . No.24/11 considered thought to the contentions raised by the parties at the bar. My findings are as under:
32. PW1, Sh. A. K. Seth was posted in Vigilance Department of National Insurance Company during the period from January, 1992 to March, 2003. It covers the period in question.
33. PW1 has deposed that he had conducted enquiry in this case, on the basis of source information, which was collected, in respect of fraudulent marine claims in DOX. That he was assisted by Mr. A.L. Gambhir and Mr. Anil Kumar Tiwari during investigation. That after completing investigation, he along with said Mr. A.L. Gambhir and Mr. Anil Kumar Tiwari, had prepared the report and sent it to CVO, Head Office, Vigilance Department, Calcutta.
34. PW1 has proved the said investigation report, consisting of five pages, including the claim of M/s Vinayak Polymers, which is Ex.PW1/A, having his signatures at CBI vs. Rajesh Kohli & Ors. 14 of 99 pages 15 CBI case . No.24/11 point A and that of Mr. A.K. Tiwari at pt. B, which he duly identified.
35. PW1 has further proved the letter, dated 05.09.2002, which is Ex.PW1/B and vide which, he sent the relevant documents to SP, CBI, EOWI, New Delhi, bearing his signatures at pt. A.
36. PW1 has further deposed that he had examined the claim file no. 351000/2145/97/98/43R457, regarding M/s Vinayak Polymers. The said entire file has been proved as Ex.PW1/C (consisting of 28 sheets). There has been no challenge to falsify the contents of the claim file, Ex. PW 1/C, by the accused persons.
37. PW1 has further deposed that M/s Pooja International and M/s Honey International were among the approved recovery agents. He has further deposed that all the divisional offices, which were in the jurisdiction of DRO I & II, were authorized to appoint any of the approved recovery agents and that these approved recovery agents CBI vs. Rajesh Kohli & Ors. 15 of 99 pages 16 CBI case . No.24/11 were for DOX and DOXIII.
38. PW2, Sh. Anil Kumar Tiwari was posted as Administrative Officer in Vigilance Department of National Insurance Company during the period from 1997 to 2000.
39. PW2 has reiterated the report, Ex.PW1/A, which was prepared by him along with PW1, Sh. A.K. Seth and Mr. A.L. Gambhir, regarding claim of M/s Vinayak Polymers. He has identified his signatures at point B and that of PW1, Sh. A. K. Seth, at pt. A, on the said report.
40. PW2 has further deposed that he had gone through the file, which is Ex.PW1/C, regarding claim of M/s Vinayak Polymers, consisting of 29 pages, while submitting the said report. PW2 has thus corroborated the evidence rendered by the PW1.
41. PW3, Sh. Krutivas Mahapatra, was posted as Chief Vigilance Officer in National Insurance Company Ltd., Calcutta, from December, 1997 to March, 2002. He has CBI vs. Rajesh Kohli & Ors. 16 of 99 pages 17 CBI case . No.24/11 deposed that he had received the report, dated 28.09.1999, which was prepared by PW1, Sh. A.K. Seth, the then Vigilance Officer along with PW, Sh. A.K. Tiwari.
42. PW3 has further deposed that he had found that six false marine claims, amounting to Rs.15,93,568/ (including the claim in question) were settled in Division X. That after getting approval from Chairman cum Managing Director, he had reported the matter to the CBI, on 29.09.2000. He has deposed that he made a complaint to the CBI, copy of which has been proved as Ex.PW3/1.
43. PW4, Sh. Visveshwar Nath is another independent witness. He has deposed that he came to Delhi in the year 1995 along with his brother in law, B.N. Tiwari, who was at that time, working in National Insurance Ltd. That the said Sh. B.N. Tiwari introduced him to accused Rajesh Kohli and requested him to arrange a job for him. That he worked with accused Rajesh Kohli for about two and half years, in his office. That he used to go out for receipt and delivery of post, on behalf of accused CBI vs. Rajesh Kohli & Ors. 17 of 99 pages 18 CBI case . No.24/11 Rajesh Kohli. That he used to be paid Rs.1,000/, per month, as wages.
44. PW4 has further deposed that in the year 1999, he became insurance agent for Division No.X of National Insurance Company Ltd and his agency number was 10080. That he obtained the said agency himself from Sh. C. M. Malhotra, the then Divisional Manager. That he subsequently, on the advise of accused Rajesh Kohli, opened a saving bank account in Asaf Ali Branch of Bank of Baroda, perhaps by the end of the year 1995 or beginning of the year 1996.
45. PW4 has further deposed that he used to deposit and withdraw money out of the said account and the amount withdrawn from the aforesaid bank account was handed over by him to accused Rajesh Kohli. That generally, one cheque in a month was issued by accused Rajesh Kohli, which was deposited by him in the bank and that the amount withdrawn, was handed over by him to accused Rajesh Kohli.
CBI vs. Rajesh Kohli & Ors. 18 of 99 pages 19 CBI case . No.24/11
46. PW4 has further deposed that on the instructions of accused Rajesh Kohli, he had opened another bank account in Jeevan Bharti Building Branch of Canara Bank. That subsequently, their office was shifted from Asaf Ali Road to 54, Hanuman Road, in the beginning or probably by the end of 1996. That accused Rajesh Kohli had asked him 23 times to issue a blank cheque but he had not obliged them. That he had closed his account in Canara Bank, in 1998. That subsequently, his agency was also closed.
47. PW4 has further deposed that in Bank of Baroda, Asaf Ali Branch, his saving bank account number was 30645 and in Canara bank, his account no. was 28415, which he did not recollect exactly. He has further deposed that he had withdrawn a sum of Rs. One Lakh and odd amount out of the aforesaid two accounts, which he handed over to accused Rajesh Kohli and Vinod Bhutani. He has further deposed that he was submitting income tax returns regularly, since 1999.
CBI vs. Rajesh Kohli & Ors. 19 of 99 pages 20 CBI case . No.24/11
48. PW4 has further deposed that he had handed over form no. 16A, in respect of B.N. Tiwari, copy of which is Ex.PW4/1 to CBI, which was issued to him from his office, bearing signatures of accused Rajesh Kohli, at pt. A, which has been duly identified by him. He has further deposed that commission voucher, in respect of B.N. Tiwari, which is Ex.PW4/2, was filled by him, having his signatures and that when the same was filled, a cheque was issued in his favour.
49. PW5, Sh. Amiya Kumar has deposed that in the year 1981, he was Assistant Administrative Officer in the National Insurance Company. He has deposed in detail about the procedure, which ought to have been followed by the competent authority for passing the marine claim.
50. PW5 has further deposed that file of Vinayak Polymers, which is Ex.PW1/C, does not contain confirmation of compliance of section 64VB of Insurance Act.
CBI vs. Rajesh Kohli & Ors. 20 of 99 pages 21 CBI case . No.24/11
51. PW6, Sh. Jagat Singh was posted as Senior Manager in the Indian Overseas Bank, on 01.05.2001. He has proved the letter, dated 16.05.2002, copy of which is Ex.PW6/A. The said letter is addressed to Sh. Alok Mittal, SP, CBI, bearing his signatures at pt. A, which have been duly identified by the witness. He has also identified the signatures of Sh. K.K. Soni, the then Chief Manager on the said letter, which contains the details of four cheques.
52. PW7, Sh. P.K. Aggarwal has deposed that in February, 2001, he was posted in the Vigilance Department of National Insurance Company Ltd., having its office at Jeevan Bharti Building, Parliament Street, New Delhi.
53. PW7 has deposed that on 08.02.01, he had handed over six claim files to the Investigating Officer at his office at Lok Nayak Bhawan, New Delhi, which were seized, vide seizure memo, copy of which is Ex.PW7/A (running into two pages). He has duly identified his signatures on the said seizure memo, at pt. A. CBI vs. Rajesh Kohli & Ors. 21 of 99 pages 22 CBI case . No.24/11
54. PW8, Sh. Deepak Chaudhary was Assistant Administrative Officer in DOX, in the year 2001. He has deposed that he had joined as Assistant Administrative Officer, on 15.04.98. That in the year 1998, accused Rajesh Kumar Kohli was the Incharge Divisional Manager and that he remained as Incharge there, till August or September, 1998, and thereafter, resigned.
55. PW8 has further deposed that he was looking after the accounts department since his joining and his duties, included the issuance of receipts for premium recovered and to disburse the payments, approved by competent authority.
56. PW8 has deposed that receipt no. 661, dated 15.05.98, contained in file of M/s Vinayak Polymers, which is also Ex.PW11/B, was prepared by their cashier, Sh. A.K. Tandon. The witness has further identified his own signatures as well as that of Sh. A.K. Tondan at pts. A & B, respectively, on the said receipt. He has further deposed CBI vs. Rajesh Kohli & Ors. 22 of 99 pages 23 CBI case . No.24/11 that in the aforesaid receipt, recovery of Rs.22,000/ has been shown from M/s Bhatinda Rajasthan Transport Company.
57. PW8 has further deposed, in detail, about the procedure for issuance of receipt in their department.
58. PW8 has further proved the statement of commission, copy of which is Ex.PW8/A, vide which, commission was paid to the agent on the premium of the insured. The said statement bears the signatures of Sh. Amiya Kumar at pt. A and his own initials at pt. B, which have been duly identified by the witness. He has further deposed that the name of the agent was Sh. B.N. Tiwari.
59. Similarly, PW8 has deposed that file, Ex.PW1/C, pertaining to M/s Vinayak Polymers contains the copies of the documents except the power of attorney, which was given to the tracer or recovery agent for effecting the recovery.
CBI vs. Rajesh Kohli & Ors. 23 of 99 pages 24 CBI case . No.24/11
60. PW8 has further deposed about the sum assured in respect of M/s Vinayak Polymers.
61. On being asked specifically, about Open Policy, PW8 has deposed that Open Policy is issued to a person on the basis of turnover and he is supposed to give the declaration for each & every transaction to the insurance company for insuring the same, under open policy and declarations are to be given compulsorily, within a particular period as stipulated, within the policy itself. He has further deposed that if the sum assured is exhausted, then no declaration is accepted. He has further deposed that the underwriting means booking of insurance business and before booking to check the business and to see its viability. He has deposed that the underwriting dockets are not available in each of the six files. However, he could not confirm as to whether section 64 of VB Insurance Act, has been duly complied with, in this case, as the underwriting dockets were not available.
62. PW9, Sh. Dinesh Kumar was working as CBI vs. Rajesh Kohli & Ors. 24 of 99 pages 25 CBI case . No.24/11 postman in Chikkambarpur Post Office, since 1988. He has deposed that during his tenure, there was no firm in the name and style of M/s Bhatinda Rajasthan Transport Company and that no daak was ever received in the name of the aforesaid firm.
63. PW10, Sh. Veer Pal Singh was working as Manager in Okara Roadways since 1996. He has deposed that it was not in his knowledge till 2002 if M/s Bhatinda Rajasthan Transport Company opposite Telephone Exchange UP Boarder, Ghaziabad was existing in Chikambarpur.
64. PW11, Sh. Vinay Loiwal has deposed that he was running M/s Vinayak Polymers at 288, Haiderpur, Delhi, which was closed by him in the year 19981999. That he was having current account in the name of the said firm in Corporation Bank, Chandni Chowk, Delhi.
65. PW11 has further deposed that the documents i.e. marine claim form, dated 17.11.97; GR no. 10350, dated CBI vs. Rajesh Kohli & Ors. 25 of 99 pages 26 CBI case . No.24/11 13.10.97; invoice no. 1675, dated 10.10.97; letter dated 27.10.97; claim bill, dated 17.11.97; letters dated 17.11.97, 08.12.97 & 15.11.97 and packing list, dated 10.10.97, are contained in file no. 351000/2145/9798/43 of National Insurance Company, Company, DOX, in respect of account of Vinayak Polymers in file, which is Ex. PW1/C. The witness has further deposed that the address shown of M/s Vinayak Polymers in the aforesaid documents, was his residential address whereas the real address of his firm was 288, Haiderpur, Delhi and that the aforesaid documents do not bear his signatures or any stamp.
66. PW11 has further deposed that accused Vijay Dayal was his classmate, who might have used the name of his firm by doing the business with Insurance Company. He has further identified accused Vijay Dayal in the court.
67. PW12, Sh. Mahipal Sharma has deposed that in the year 2002, he was posted at PP Seema, PS Sahibabad, Ghaziabad, UP and was looking after the area of Chikkambarpur, consisting of transport companies. He has CBI vs. Rajesh Kohli & Ors. 26 of 99 pages 27 CBI case . No.24/11 further deposed that as per his knowledge, M/s Bhatinda Rajasthan Transport Company was not existing opposite Telephone Exchange, UP Border, Ghaziabad.
68. PW13, Sh. Brijesh Kumar has deposed that during the year 2002, he was working as Assistant Manager in the State Bank of Bikaner and Jaipur, Jawalaheri, Market Branch, Paschim Vihar, New Delhi.
69. PW13 has further deposed that vide seizure memo, dated 01.11.2002, he had handed over various documents, mentioned at serial no. 1 to 12, to the IO, Sh. R.P. Kaushal, the then Addl. SP, CBI. The copy of the same has been proved as Ex.PW13/A.
70. PW13 has further deposed that the letter, dated 20.07.02, was handed over to him by Sh. Jagan Nath Grover, who was the Manager (P), at the relevant time. He has proved the said letter as Ex.PW13/A1, bearing the signatures of the said Sh. Jagan Nath Grover, at pt. A, which have been duly identified by him, as he had worked CBI vs. Rajesh Kohli & Ors. 27 of 99 pages 28 CBI case . No.24/11 with him in official capacity.
71. PW13 has further deposed that the letter, dated 16.07.02, is in the handwriting of Sh. Jagan Nath Grover, the then Manager(P), which bears the signatures of Sh. R.S. Rangy, the then Chief Manager, at pt.A, which have been duly identified by the witness as he had worked with him and had seen him signing and writing. The said letter has been proved as Ex.PW13/A2.
72. PW13 has further deposed that the account no. 4577 was opened in the name of accused Arvind Kumar Sharma. The copy of the said account opening formcum specimen signature card, has been proved as PW13/A3, which has also been duly certified by Sh. Jagan Nath Gover, the then Manager(P), bearing his signatures at pt. A, which have been duly identified by the witness as he had seen him signing and writing in official capacity.
73. PW13 has further proved the statement of account, pertaining to account no. 4577 (running into 21 CBI vs. Rajesh Kohli & Ors. 28 of 99 pages 29 CBI case . No.24/11 pages), which was opened in the name of accused Arvind Kumar Sharma as Ex.PW13/A4. The said statement of account has also been duly certified by Sh. Jagan Nath Gover, the then Manager(P), bearing his signatures at pt.A, which have been duly identified by the witness as he had seen him signing and writing in the official capacity.
74. PW13 has further deposed that vide seizure memo, dt. 27.03.03, he had handed over documents, mentioned at serial no. 1 to 7, to Sh. R.P. Kaushal. The copy of the same has been proved as Ex.PW13/A5, bearing his signatures at pt. A, which this witness has duly identified.
75. PW13 has further deposed that pay order no. 786342, dt. 30.03.98, for sum of Rs.22,000/, was issued in favour of National Insurance Co. Ltd., which was handed over to CBI, vide seizure memo, dated 27.03.03, exhibited as Ex.PW13/A5. The said pay order has been proved as Ex.PW13/A6.
76. PW13 has further deposed that the cheque no. CBI vs. Rajesh Kohli & Ors. 29 of 99 pages 30 CBI case . No.24/11 918213, dt. 30.03.98, for sum of Rs.22,066/, was issued from account no. 4577 of accused Arvind Kumar Sharma for issuance of pay order in favour of National Insurance Company Ltd., which has been proved as Ex.PW13/A7 and the pay in slip, dated 30.09.98, has been proved as Ex.PW13/A8. He has further deposed that the aforesaid instruments were handed over by him, vide seizure memo, Ex.PW13/A.
77. PW14, Sh. Jeet Singh was posted as Postman at Lodhi Road Post Office, New Delhi, during the period 20022003. He has further deposed that Office of CBI, situated at Khan Market, New Delhi, was in his jurisdiction.
78. PW14 has deposed that the envelopes, marked as D34 and D35, which are Ex.PW14/A and Ex.PW14/A1, were received undelivered, which were given back to the dispatcher of Superintendent of Police, Lok Nayak Bhawan, Khan Market, New Delhi, in the year 2002, by him.
79. PW15, Sh. B.S. Bisht has deposed that during CBI vs. Rajesh Kohli & Ors. 30 of 99 pages 31 CBI case . No.24/11 the period w.e.f 2000 to December, 2004, he was posted in CBI, Economic Offences Wing, New Delhi. He has further deposed that during the course of investigation of this case, he had assisted Sh. R.P. Kaushal, Addl. SP, IO of this case, and had recorded the statements of Sh. Mohan Mehto, Surinder Kumar, Sh. P.R. Rastogi and Sushant Rastogi. He has further deposed that the statements of above said persons were correctly recorded by him.
80. PW16, Sh. S.N. Gupta was posted as Manager in Vaish Cooperative Adarsh Bank Ltd, Paschim Vihar, New Delhi, on 21.11.02. He had been posted in the said branch w.e.f 14.08.02 to 30.04.04.
81. PW16 has identified the signatures of Sh. B.S. Sambyal, the then Manager, at pt. A on the letter, dated 27.02.02, which is Ex.PW16/A, as he had seen him writing and signing, during the course of his official duty.
82. PW16 has further deposed that vide the aforesaid letter, copy of account opening form of current CBI vs. Rajesh Kohli & Ors. 31 of 99 pages 32 CBI case . No.24/11 account no. 410 of M/s Vinayak Polymer, marked as Mark PW16/X and copy of statement of account no. 410, of M/s Vinayak Polymer, which is Ex.PW16/B, were forwarded to the CBI. He has further deposed that the said statement of account has been duly certified as per Bankers Book of Evidence Act, which bears his signatures at pts. A, B & C, along with the seal of the bank, which have been identified by him.
83. PW16 has further deposed that account no. 410 was introduced by accused Arvind Kumar Sharma, who was having current account no. 337 in their branch and whose residential address was 66/2230, Nai Wala, Karol Bagh, New Delhi.
84. PW16 has further deposed that the account no. 410, which was in the name of M/s Vinayak Polymers, was opened by Sh. Ravinder Khanna, the then accountant in their branch and that the address of said Vinayak Polymers has been shown as 26A, Jwala Heri, Paschim Vihar, Delhi and their residential address as C2/159, West Enclave, CBI vs. Rajesh Kohli & Ors. 32 of 99 pages 33 CBI case . No.24/11 Pitampura, Delhi. PW16 has further identified the signatures of the said Sh. Ravinder Khanna, at point X, on Mark PW16/X.
85. PW16 has further deposed that cheque no. 896988, dated 11.12.97 for Rs.2,29,003/, which is Ex.PW16/C, was received in their bank account no. 410 for collection from Indian Overseas Bank. That the account no. 410 was closed on 14.12.98.
86. PW17, Sh. Jyoti Kumar, was one of the Investigating Officer of this case. He has deposed that after registration of FIR, dated 23.01.01, copy of which is Ex.PW17/A, the present case was marked to him for investigation. He has further identified the signatures of Sh. Rajender Prasad, the then Superintendent of Police at points A & B on the FIR.
87. PW17 has further deposed that during the course of investigation, he had recorded statements of witnesses, seized documents and recorded case diary. He CBI vs. Rajesh Kohli & Ors. 33 of 99 pages 34 CBI case . No.24/11 has further deposed that the case was subsequently handed over to Sh. R.P. Kaushal, the then Additional SP, CBI, EOWI, for further investigation.
88. PW17 has further deposed that during the course of investigation, he had seized various documents through proper seizure memos. He has deposed that vide seizure memo, dated 08.02.01, which is Ex.PW17/B, he had seized documents mentioned in it from Sh. P.K. Aggarwal, the then Administrative Officer, Vigilance Department, NIC, New Delhi.
89. Further, PW17 has reiterated letter, Ex.PW16/A, which was received from Vaishya Cooperative Adarsh Bank Ltd, regarding enquiry of current account no. 410 of M/s Vinayak Polymers. He has identified his signatures at pt. B on the said letter, vide which, copies of account opening form and statement of account, which were already marked as PW16/X and PW16/B were forwarded and which were received by him. CBI vs. Rajesh Kohli & Ors. 34 of 99 pages 35 CBI case . No.24/11
90. PW17 had also obtained specimen writings and signatures of accused Vijay Dayal, which are Ex.PW23/9, running into 12 pages and which were taken in the presence of Sh. Prabhat Kumar Aggarwal, the then Administrative Officer, National Insurance Company.
91. PW17 has further deposed that he had recorded statements of witnesses and that thereafter, he handed over the charge of this case for further investigation to the IO, Sh. R.P. Kaushal, the then Additional SP.
92. PW18, Inspector S.L. Garg has deposed that in the year 2002, he was posted as Inspector in EOWII, CBI. He had assisted the part IO in the investigation of this case and had recorded the statements of some of the witnesses.
93. PW18 has further deposed that statement of PW Beer Pal Singh is Ex.PW10/DA, who stated that M/s Bhatinda Rajasthan Transport Company opposite Telephone Exchange, UP Border, Ghaziabad was not in existence and that he was working in his own transport CBI vs. Rajesh Kohli & Ors. 35 of 99 pages 36 CBI case . No.24/11 company for the last 20 years in the same locality and that the said company never came to his notice.
94. The witness has further deposed that during his enquiry, he found that the said transport company was not existing at the said address.
95. PW19, Sh. R.P. Kaushal is the Investigating Officer of this case. He has deposed that during the period from 2002 to 2006, he was posted as Additional, Superintendent of Police, CBI, EOWI, New Delhi. He has further deposed that the present case was handed over to him by Sh. Jyoti Kumar, the then Deputy Superintendent of Police, CBI, for further investigation.
96. PW19 has further deposed that during the course of investigation, he was also assisted by other IOs namely, B.S. Bisht, B.M. Pandit, S.L. Garg, who were all Inspectors along with Smt. Rekha Sangwan, the then SI and others.
CBI vs. Rajesh Kohli & Ors. 36 of 99 pages 37 CBI case . No.24/11
97. PW19 has further deposed that during the course of investigation, he had recorded the statements of witnesses and had also collected/seized documents from the concerned persons/authorities.
98. PW19 has further deposed that he had collected specimen and admitted handwritings and signature of the accused persons, which were sent to CFSL for comparison and for obtaining expert's opinion, which had been filed alongwith the documents in the court. He has further deposed that while sending the above mentioned documents to CFSL, he had sent questioned documents, marked as Q1 to Q139, specimen writings / signatures, marked as S1 to S92 and admitted writings/signatures, marked as A1 to A75 through SP, CBI, EOW, vide letter, dated 09.12.2002, in a sealed cover, under the signatures of the then S. P. Shri Alok Mittal of CBI, EOW, Delhi. The copy of the said letter has been proved as Ex.PW19/A. The witness has also identified the signatures of Sh. Alok Mittal on the said letter, at pt. B, as he had seen him writing and signing, during the course of the official CBI vs. Rajesh Kohli & Ors. 37 of 99 pages 38 CBI case . No.24/11 dealing.
99. PW19 has further proved the expert's opinion, received in this case, which is Ex.PW19/B. The said expert opinion was received through a forwarding letter, dated 03.04.03, the copy of which is Ex.PW19/I. The expert's opinion goes unchallenged.
100. In the case law reported as Murari Lal Vs. State of M. P., AIR 1980 SC 531, Hon'ble Supreme Court has held that :
"In cases where the reasons for the opinion are convincing and there is no reliable evidence through a doubt, the uncorroborated testimony of a handwriting expert may be accepted."
101. PW19 has further deposed that vide letter, dated 27.06.2002 of Shri S. Roy, he had received the enclosures as mentioned in the letter, copy of same has been proved as Ex. PW 19/C.
102. PW19 has further deposed that vide seizure memo, dated 17.9.2002, he had seized documents from CBI vs. Rajesh Kohli & Ors. 38 of 99 pages 39 CBI case . No.24/11 Shri Deepak Chaudhary, the then AAO, NIC, DO10, New Delhi. The copy of said seizure memo has been proved as Ex. PW19/D, which bears his signatures at point A and that of Shri Deepak Chaudhary at point B, which have been duly identified by this witness.
103. PW19 has further deposed that he had also received the details regarding six policies (including the one relating to this case), vide letter, dated 19.9.2002, copy of the same has been proved as Ex. PW19/E.
104. PW19 has further deposed that he had also collected documents, vide letter, dated 03.12.2002 from Shri S. Roy, Asstt. Manager, copy of the same has been proved as Ex.PW19/F .
105. PW19 has further deposed that he had also seized documents, vide seizure memo, dated 27.03.03, from Sh. Brijesh Kumar Sharma, the then Assistant Manager, copy of which has been proved as Ex.PW13/A5. The witness has further identified his signatures at pt. B CBI vs. Rajesh Kohli & Ors. 39 of 99 pages 40 CBI case . No.24/11 and the signatures of Sh. Brijesh Kumar Sharma, at pt. A, on the said document.
106. PW19 has further reiterated seizure memo, Ex. PW13/A, vide which, he had seized various documents in this case, including cheque and pay in slip, which are Ex.PW13/A7 and Ex.PW13/A8, respectively.
107. PW19 has further deposed that he had also seized CD PUB Statement w.e.f 01.01.97 to 31.12.98, showing relevant entry dated 13.12.97, in respect of clearance of cheque no. 896988 for Rs.2,29,003/, which is Ex.PW19/G and CD PUB statement w.e.f 01.01.97 to 31.12.98 of account no. 1523 of National Insurance Company from Indian Overseas Bank, Parliament Street, New Delhi, copy of which is Ex.PW19/H. He has further deposed that he had also collected details of six policies, copy of which is already Ex.PW8/A.
108. During the course of investigation, PW19 had also obtained specimen signatures of accused Vijay Dayal, CBI vs. Rajesh Kohli & Ors. 40 of 99 pages 41 CBI case . No.24/11 which are already Ex.PW23/9 (running into 12 pages), in the presence of an independent witness, Sh. P.K. Aggarwal, the then Assistant Officer, National Insurance Company, New Delhi, whose signatures have been identified by this witness at point A.
109. PW19 has further deposed that he had also collected details, regarding recovery fee, cheque no. and dates etc of different persons/firms, copy of which is Ex.PW19/J, colly.
110. PW19 has further deposed that during the course of investigation, vide production cum seizure memo, Ex.PW19/K, he had collected documents, Ex.PW19/L & Ex.PW16/B from NV Navaneetha Krishnan, Inspector, CBI.
111. PW19 has deposed that during the course of investigation, he had also obtained details of commission, paid to agent, Sh. B.N. Tiwari, regarding six policies, including the one in question, copy of which is Ex.PW8/A. CBI vs. Rajesh Kohli & Ors. 41 of 99 pages 42 CBI case . No.24/11
112. PW19 has further deposed that during the course of investigation, he had also collected verification report, dated 27.10.99 of Indranil Bhattacharyaji, Surveyor and Law Assessor of Siliguri, which is Ex.PW19/N, through letter dated 01.11.99 from PW A.K. Seth, the then Vigilance Officer, NIC, Regional Office, New Delhi, which is Ex.PW19/M. He also reiterated letter dated 05.09.02, which is Ex.PW1/B.
113. PW19 has further deposed that vide seizure memo, dated 17.09.02, already Ex.PW19/D, he had seized documents, which are Ex.PW19/O, Ex.PW19/P, Ex.PW19/Q and Ex.PW19/R(running into three pages) along with Ex.PW4/2.
114. PW19 has deposed that during the course of investigation, he had also collected a letter of Commercial Syndicate, which is Ex.PW19/S / Ex.PW19/5 (consisting of two pages).
CBI vs. Rajesh Kohli & Ors. 42 of 99 pages 43 CBI case . No.24/11
115. PW19 has also reiterated letter, Ex.PW14/A, which was sent to the proprietor of M/s Global Enterprises, 68A, Rama Building, Jalpaiguri, West Bengal and was received back undelivered with remarks 'not known' at pt. B. He has further deposed that along with the said letter, notice under section 160 Cr.P.C was also sent.
116. PW19 has deposed that after completion of investigation, he had filed the charge sheet against the accused persons in the court, on 27.01.03.
117. The prosecution evidence has, therefore, established its case by way of oral, documentary and circumstantial evidence.
118. Now, I come to the defence evidence. DW1 is accused Adarsh Aggarwal, who has admitted in his deposition that he was an employee of M/s Commercial Syndicate. The plea taken by him that he has been falsely implicated in this case because of Writ Petition filed by the M/s Commercial Syndicate against CBI vs. Rajesh Kohli & Ors. 43 of 99 pages 44 CBI case . No.24/11 NIC Ltd. in the year 2000 and in the year 2003, is vague and false as the same has not been substantiated on record.
119. On the other hand, DW1 has admitted that the letter, Ex PW 19/5, bears his signatures at Point A, thereby, admitting this document. He has also admitted that he has received a telephonic call from accused Rajesh Kumar Kohli with the instructions not to contact the insured party in future. He has further admitted that the recovery amount of Rs.22,000/, deposited by him, was through cheque, which he received from accused Arvind Sharma and the same was deposited as 'recovery' in this case and a bill for recovery fee was also raised by him from NIC.
120. Admittedly, M/s Commercial Syndicate or accused Adarsh Aggarwal never appointed any other recovery agent nor could appoint nor they had instructions to appoint any other recovery agent. How then, despite the Carrier being not located by him, no recovery being effected by him from the transporter, the CBI vs. Rajesh Kohli & Ors. 44 of 99 pages 45 CBI case . No.24/11 recovery cheque from accused Arvind Kumar Sharma was deposited by him with the NIC and commission for recovery charged? All this only show his active, conscious and organized participation in the alleged crime.
121. These circumstances, therefore, clearly indicate complicity of accused Adarsh Aggarwal and accused Arvind Sharma in the matter of grant of fraudulent and bogus claim in this case, which was passed, in pursuance of criminal conspiracy hatched by all the accused persons and as a cover up false recovery of even less than 10% of the claim amount was deposited with NIC Ltd.
122. DW2Shri B. K. Sachdeva has proved the Procedural Manual of NIC as Ex. DW 2/A. He admitted that the rules, contained in the said Manual were mandatory for processing and settling the claims. In crossexamination, he has admitted all the material contentions, which has been raised by the prosecution in this case. DW2 also does not help the defence. On the CBI vs. Rajesh Kohli & Ors. 45 of 99 pages 46 CBI case . No.24/11 other hand, he only supports the case of the CBI.
123. DW3 is accused Rajesh Kumar Kohli. In his cross examination, he has also admitted the documents and signatures in claim file, Ex. PW1/C. Nothing has appeared in his examination which helps the defence in any manner whatsoever. On the other hand, his admissions of having passed the claim in this case under the circumstances obtaining on record only corroborates the prosecution version.
124. It is clear that the deposition of the defence witnesses do not bring anything on record to show that either the prosecution story is false or accused persons are innocent. On the contrary it corroborates and justify the prosecution version only.
125. The prosecution, therefore, has alleged in this case that:
(a)M/s Globe Electricals did not exist at the given address.
(b) Transporter M/s Bhatinda Raj. Transport Co. denied CBI vs. Rajesh Kohli & Ors. 46 of 99 pages 47 CBI case . No.24/11 having sent consignment from Insured Co. to M/s Globe Electricals.
(c) Shri Vinay, the actual owner of the firm, had surrendered his Sale Tax No. long ago and that he had nothing to do with claim in question.
(d)Accused Vijay Dayal is beneficiary of the claim proceeds.
(e) Recovery cheque was issued from the a/c of Arvind Sharma fraudulently.
(f) No recovery from the transporter was effected.
(g) Accused Adarsh Agarwal used forged and fabricated recovery to claim commission.
126. Regarding criminal conspiracy, it is well laid that it can be proved by circumstantial evidence.
127. In the case law reported as State of M. P. V Sheetla Sahai, 2009, Cr. LJ 4436 SC, Hon'ble Supreme Court has held that :
"Often criminal conspiracy is hatched in secrecy and for proving the offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence."
128. In the case law reported as Chaman Lal Vs. State of CBI vs. Rajesh Kohli & Ors. 47 of 99 pages 48 CBI case . No.24/11 Punjab, AIR 2009 SC 2972, Hon'ble Supreme Court has held that:
"Essence of conspiracy is unalwful combination and the complicity of the accused has to be decided after considering all the circumstances proved, before, during and after occurence. Agreement between the conspirators may also be proved by necessary implication."
129. In the case law reported as R. K. Dalmia V The Delhi Administration, AIR 1962 SC 1821, Hon'ble Supreme Court has held that :
"It is not necessary that each member of a conspiracy must know all the details of the conspiracy."
130. In the case law reported as Tribhuvan Nath Vs. State of Maharashtra, AIR 1973 SC P 450, Hon'ble Supreme Court has held that :
"Evidence of one accused can be used against the other accused to prove the existence of conspiracy under section 10 of the Evidence Act."
131. In the case law reported as AIR 1974 SC P 898, Hon'ble Supreme Court has held that :
CBI vs. Rajesh Kohli & Ors. 48 of 99 pages 49 CBI case . No.24/11 "Even admission of one accused under section 10 of the Evidence Act, can be used against other accused to prove criminal conspiracy."
132. In the case law reported as Kehar Singh Vs. State AIR 1988 SC 1883, Hon'ble Supreme Court has held that :
"Action or statement made by one of the accused could be used as evidence against the other by Virtue of Section 10 of the Evidence Act."
133. It was held in the case law reported as AIR 2010 SC 3718 'Muriappan Vs. State of Tamil Nadu' that :
"Facts established should be consistent only with the hypothesis of guilt of the accused. It does not mean that each and every hypothesis suggested by accused must be excluded by proved facts."
134. It was further held that :
"False and inconsistent defences taken by the accused can be taken as additional circumstance against him strengthening the chain of circumstances."
CBI vs. Rajesh Kohli & Ors. 49 of 99 pages 50 CBI case . No.24/11
135. In the case law reported as Hashim (K) 2005 Cri LJ 143 (SC), the Hon'ble Supreme Court has held that "for an offence punishable under section 120B, the prosecution need not necessarily prove that the perpetrators expressly agree do to or cause to be done illegal act; the agreement may be proved by necessary implication".
136. In the case law reported as (2001) 4 Crimes 247 (SC), the Hon'ble Supreme Court has held that "to prove conspiracy, it is not necessary that there should be direct communication between each conspirer and every other but the criminal design alleged must be common to all".
137. It has been held in the case law reported as Firozuddin Basheeruddin (2001) 7 SCC 596 that "the rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interest of security, a person may carry out his part of a conspiracy without even being informed of the identity of his co conspirators. An agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of what lies in their minds". CBI vs. Rajesh Kohli & Ors. 50 of 99 pages 51 CBI case . No.24/11
138. It was further observed in the aforesaid judgment that "Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions, any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each coconspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Thus conspirators are liable on agency theory for statements of coconspirators, just as they are for the overt acts and crimes committed by their confrers".
139. The assertion of the prosecution in this case are that in pursuance of criminal conspiracy, false insurance claim has been obtained by the accused persons from NIC DOX when consignor, consignee and transporters were nonexistent at their respective given addresses, during the relevant period.
140. Further, the circumstances indicate that either no goods were transported or the transportation CBI vs. Rajesh Kohli & Ors. 51 of 99 pages 52 CBI case . No.24/11 of the goods, as alleged, was fake and manipulated.
141. The Manual, which has been placed on record by the defence and is undisputed is Ex.DW2/A. It admittedly contains the procedure in case of Marine Cargo Claims to be followed while processing the claims. This manual provides clearly that wherever, discretion is exercised by the Settling Authority to dispense with the prescribed requirement, such discretion should be judiciously used and reasons thereof, in detail, should be recorded. In the instant case, admittedly, no reasons were recorded by the settlement authority i.e. accused, Rajesh Kumar Kohli.
142. That in case general procedure is to be deviated while processing and passing the claims, the reasons justifying the departure are required to be clearly set out, which is not the case here.
143. The procedural manual, duly proved as CBI vs. Rajesh Kohli & Ors. 52 of 99 pages 53 CBI case . No.24/11 Ex.DW2/A by the defence and not disputed by the prosecution, provides the following salient features:
"............the claim settling authority should use his discretion by recording his reasons, in detail.
1. Intimation of Claim (1.1) Intimation of claim is normally received from claimant by letter, telegram or even by phone, followed by a letter. Each intimation should be recorded in writing, confirming the message and date and time of its receipt.
(1.2) On receipt of a claim intimation, the dealing office should; (a) ascertain whether insurance policy is in existence and
(b) allot a claim number
(c) prepare a claim docket filling in all the details
(d) make an entry in claim intimation register in serial order.
2. OPEN DELIVERY FROM CARRIERS/THIRD PARTY (2.1) In order to establish that the goods have been lost or damaged whilst in the custody of carriers, claimants have an obligation to apply for open assessment delivery from the carriers. Failure to do so would prejudice the insured's right of recovery under the policy.
(2.2) Where the written application for open/survey delivery is refused by the carriers and a survey is disallowed by them, the claimant shall be asked to take delivery under a written CBI vs. Rajesh Kohli & Ors. 53 of 99 pages 54 CBI case . No.24/11 protest after survey by a surveyor deputed by the dealing office. (2.3) In case of nondelivery/short delivery, the claimant shall be asked to obtain and send to the dealing office either a non delivery/short delivery certificate from the Port Authorities or the original Railway Receipt (RR), Lorry Way Bill (LWB) or Air Consignment Note duly endorsed by the carriers, confirming nondelivery/short delivery or a separate nondelivery/short delivery certificate, as the case may be.
3. APPOINTMENT OF SURVEYOR 3.1 It is necessary to decide whether a survey of goods reported lost or damaged is to be arranged. 3.2 Claim exceeding Rs.20,000/ should be surveyed by a duly licensed surveyor.
3.6 In marine insurance unlike other classes of insurance, survey fee is initially paid by the claimant. The survey fee will be reimbursed to the claimant along with the claim amount, if the claim is admissible under the policy. This should be brought to the notice of the claimant whilst advising him about appointment of surveyor.
3.7 The dealing office shall also arrange for surveys 'without prejudice' on losses reported under policies issued by other policy issuing offices which are not under its jurisdiction. Thereafter, the dealing office shall process the entire claim upto final settlement keeping the policy issuing office informed of all developments.
CBI vs. Rajesh Kohli & Ors. 54 of 99 pages 55 CBI case . No.24/11 3.10 Normally, the survey report should be finalized within three weeks. The surveyor shall be instructed to keep the dealing office informed of the progress of his work in case of delay. He shall alert dealing office immediately if it is known that a third party is responsible for the loss so that arrangements for a joint survey with the third party's representative can be made.
3.11 If the loss is a major one, the surveyor shall be asked to submit one or more interim reports.
3.12 The dealing office should keep in touch with the surveyors throughout.
4. DOCUMENTS REQUIRED FOR SETTLEMENT OF ALL CLAIMS.
4.1 Documents required for settlement of all claims are as under:
i. Original insurance policy/declaration under the open policy, duly endorsed by the insured/claimant. ii. Original or a signed copy of sales invoice along with packing list.
iii. Copy of Bill of Lading (in case of sea voyage).
iv. Copy of Bill of Entry.
v. In case of General Average, Counter Guarantee or
original Cash Deposit Receipt with Letter of Transfer. vi. Letter of Subrogation duly stamped (only where recovery from carriers is possible). vii. Special Power of Attorney( wherever applicable). viii. Lost Over Board Certificate where loss has taken place CBI vs. Rajesh Kohli & Ors. 55 of 99 pages 56 CBI case . No.24/11 during loading.
ix. In case of shortlanding/nondelivery of complete assignment:
Original contract of affreightment duly endorsed in our favour viz. Railway Receipt, Transport Receipt, full set of Bill of Lading, Air Consignment Note and Postal Receipt etc as applicable. The original contract of affreightment should be endorsed by the carrier confirming shortlanding/nondelivery of the entire consignment by them or with a separate shortlanding/non delivery certificate. x. In case of partial nondelivery/shortlanding:
Nondelivery and/or landed but missing certificate from the carriers or Port Trust.
xi. In case of partial loss or damage:
a. Open assessment report by the carrier and/or b. Survey Report of independent survey.
c. Claim form (as per Annexure'A')
d. Claim bill (where necessary).
xii. Copies of correspondence exchanged with the carriers
along with registered AD cards (wherever recovery from the
carriers is possible).
xiii. Banker's Certificate confirming non receipt of export proceeds in India in an approved manner (in case of claims under export policies settled in India).
6.CLAIM SETTLEMENT ON DESPATCHES BY INLAND TRANSIT (RAILWAYS OR ROAD CARRIERS OR OTHER MODES OF TRANSIT FOR DESPATCHES WITHIN INDIA).
6.1 Short and Non Delivery 6.1.1 When a claim for short delivery or non delivery CBI vs. Rajesh Kohli & Ors. 56 of 99 pages 57 CBI case . No.24/11 of a consignment is reported, consignees should be advised to obtain signed certificate of the delivery authorities on the reverse of the Receipts certifying that the packages are not available for delivery or obtain a separate shortlanding or nondelivery certificate. The consignees should be requested to lodge a valued claim on the carriers by Registered Post Acknowledgment Due within a period as set out in 6.2.2 below. Tracing agents should also be engaged, whenever necessary.
9. GENERAL 9.9 All documents must be called for in one go and not in piecemeal.
11. DISCRETION TO BE USED BY DIVISIONAL OFFICE 11.1 The dealing office has to use its discretion judiciously after calling for necessary explanation from the claimant. Reasons for using discretions shall be duly recorded by the person concerned.
11.2 Where the right of recovery from the carriers/third party is prejudiced the claim amount payable shall be restricted to not exceeding 75 % of the assessed loss other than in respect of excepted Articles as per Indian Railway Act or Carriers Act, where the amount payable shall be the assessed loss less the recovery amount prejudiced."
144. The said Manual further provides that intimation of claim is normally received from insured, CBI vs. Rajesh Kohli & Ors. 57 of 99 pages 58 CBI case . No.24/11 consignor, consignee and or their agents by letter, telegram or even on phone followed by a letter. Each verbal or telephonic information is required to be recorded in writing confirming the message, date and time of its receipt. This does not find compliance in the instant case.
145. Para 12 of the Manual further provides that all the recovery claims should be properly followed up and if no settlement is received from the Carriers within a reasonable period or if Carrier repudiate the liability the dealing official/legal advisor is required to be requested to give his opinion on the question of filing of a suit based on chances of success and cost involved compared to the claim amount. The duty/responsibility, in this regard, was of accused Rajesh Kumar Kohli, as he was the Head of the NIC DOX and also headed the claim committee concerned.
146. Further, as per annexure to the procedural manual, marine cargo claim has the conditions printed on the insurance policies, issued by the NIC, according to CBI vs. Rajesh Kohli & Ors. 58 of 99 pages 59 CBI case . No.24/11 which it was necessary for the claimant to obtain and submit the original damage/shortage/nondelivery certificate from the carrier if the goods were damaged in transit, or if short delivered or not delivered, at all.
147. In this case, accused Rajesh Kumar Kohli appointed Adarsh Aggarwal, accused No.4, as a recovery agent, approved the claim amount of Rs.2,29,003 in favour of the M/s Vinayak Polymers. He passed the claim despite nonavailability of the essential original documents and overlooked the deficiencies and discrepancies in the documents submitted by the claimant and Surveyor without any cogent reason much less record the same as per the mandate of the Manual.
148. Accused Vijay Dayal is claimant in this case.
He was also authorised signatory of M/s Vinayak Polymers in the account of Vaish Cooperative Adarsh Bank, Pashchim Vihar, where their address shown is as 26A, Jwala Heri, Pashchim Vihar, which is other than what was mentioned by him in the insurance policy in question. CBI vs. Rajesh Kohli & Ors. 59 of 99 pages 60 CBI case . No.24/11
149. M/s Vinayak Polymers was found non existing at the given address. Under section 106 of the Evidence Act, the burden to prove that it existed was upon accused Vijay Dayal but he failed to do so.
150. In the case law reported as Krishna Kumar Vs. UOI, AIR 1959 SC 1390, and Indore Municipal Corporation Vs. Caltex (India) Ltd, AIR 1991 SC 454, Hon'ble Supreme Court has held that :
"If the facts are within the knowledge of the accused, it is enough to establish facts which give rise to a suspicion and then by reason of Sec. 106 of the Evidence Act to throw the onus on him to prove his innocence."
151. In this case, Recovery Agent was Adarsh Aggarwal, yet the recovery cheque i.e. of Rs.22,000/ was paid from the account of Arvind Kumar Sharma (Account No. 4577 of SBBJ, Pashchim Vihar) and not from the transporter.
CBI vs. Rajesh Kohli & Ors. 60 of 99 pages 61 CBI case . No.24/11
152. Accused Adarsh Aggarwal deposited the recovery amount of Rs.22,000 vide bankers cheque, which was provided and was made from the A/c of accused Arvind Kumar Sharma without making the actual recovery from the transporter i.e. Bhatinda Rajasthan Transport, which, in fact, was nonexistent.
153. From the record, it is evident that the accused Adarsh Aggarwal of M/s Commercial Syndicate deposited a cheque for a sum of Rs. 22,000/ under a bankers cheque without making the actual recovery from the transporter knowingly fully well that no such transporter was existing at the given address. Further, the recovery without any rhyme and reason is a meager 10% of the claim amount, just to cover up the misdeeds of the accused persons and justifying on records falsely that the recovery had been made in this case.
154. Accused Adarsh Aggarwal has clearly admitted the document, Ex. PW 19/5. He also identified his signatures on the same. According to this document, it is CBI vs. Rajesh Kohli & Ors. 61 of 99 pages 62 CBI case . No.24/11 clear that M/s Bhatinda Rajasthan Transport Company i.e. transporter allegedly in this case, was not found and could not be traced by them. It further contained that accused Rajesh Kumar Kohli asked him to hush up the matter and used his undue influence and stopped from making any contact with any people at consignor's address i.e. 1716, Gali Piau wali, Dariba, Chandni Chowk, Delhi6. Admittedly, M/s Commercial Syndicate or the accused Adarsh Aggarwal did not appoint any tracer. This further proves the dishonest design of the accused as well as of M/s Commercial Syndicate and other accused persons.
155. Accused Rajesh Kumar Kohli did not appoint any tracer despite the fact that the consignment in question valued over a sum of Rs.2,20,000/ and that allegations were of nondelivery. The appointment of the surveyor is mandatory when loss is more than Rs.20,000/ as per Manual, Ex. DW 2/A. Accused Rajesh Kumar Kohli, therefore, was flouting all mandatory norms and passed the fraudulent and false claim, in this case, by hook and by crook.
CBI vs. Rajesh Kohli & Ors. 62 of 99 pages 63 CBI case . No.24/11
156. Accused Vijay Dayal claimed himself to be the proprietor of M/s Vinayak Polymers. He got the sale invoice in the name of M/s Vinayak Polymers, 1716, Gali Piauwali, Dariba Chandni Chowk, Delhi 6. He forged and used the same as genuine in this case for obtaining false insurance claims as he projected himself as Proprietor of said M/s Vinayak Polymers. M/s Vinayak Polymers opened account in the bank on 3.9.1997 in Vaish Cooperative Adarsh Bank, Paschim Vihar, New Delhi, where accused Vijay Dayal posed as Proprietor and authorised signatory of M/s Vinayak Polymers but he gave a different business address as 26A, Jawala Heri Paschim Vihar and his own address as C2/159, West Enclave, Pitampura, Delhi34.
157. All this clearly shows a dishonest intention from the beginning as the address shown in invoice and correspondences was the residence of Shri Vinay Loiwal, who has been examined as PW 11 and who has deposed in this regard. The claim cheque for Rs.2,29,003/ he, admittedly, got credited in his account. This accused, in CBI vs. Rajesh Kohli & Ors. 63 of 99 pages 64 CBI case . No.24/11 his statement under section 313 Cr. PC, has admitted that the policy in question was taken by him in the name of Vinayak Polymers. He has falsely claimed to have suffered actual loss of consignment. It has come on record that the actual owner of the Vinayak Polymers was, in fact, PW11Vinay Loiwal and his actual business address was 288, Haiderpur, Delhi, which was making plastic fitting items for fitting electricity pipes. PW 11 further stated that he had closed his business in the year 199899. PW 11 after seeing the documents in the claim file, Ex. PW 1/C, in this case, stated that the address shown in the documents by the claimant is, in fact, his residential address and not the actual address of M/s Vinayak Polymers. He has further stated that signatures as Proprietor on these documents, were not his signature and the stamp is also not of his firm, M/s Vinayak Polymers. He has stated that accused Vijay Dayal was his classmate in Ludlo Castle School and was in regular touch with him and he might have misused the name of his firm.
158. It is clearly established that accused Vijay CBI vs. Rajesh Kohli & Ors. 64 of 99 pages 65 CBI case . No.24/11 Dayal was committing fraudulent acts in pursuance of criminal conspiracy in this case.
159. Accused Arvind Kumar Sharma has dishonestly introduced accused Vijay Dayal as Proprietor of M/s Vinayak Polymers. His address 26A, Jawala Heri, is appearing on his application for preparation of bankers cheque, which has been duly proved on record, vide which alleged recovery from nonexistent transporter is shown as received and was deposited in NIC by accused Adarsh Aggarwal. The cheque, Ex. PW 13/A7, for an amount of Rs.22,066/ was got issued, admittedly, from his own bank account No.4577, SBBJ Bank. NIC, admittedly, never authorised him to act as a Recovery Agent. The documents, Ex. PW 13/A7 and Ex. PW 13/A3 clearly shows his complicity with other accused persons in the fraud played in this case.
160. Accused Adarsh Aggarwal was appointed as Recovery Agent on 17.12.1997 by accused Rajesh Kumar Kohli. He submitted the false recovery report on behalf of CBI vs. Rajesh Kohli & Ors. 65 of 99 pages 66 CBI case . No.24/11 M/s Commercial Syndicate. He admittedly submitted recovery cheque of Rs.22,000/, as recovery received from M/s Bhatinda Rajasthan Transport Company, a non existent transporter, without making the actual recovery from the said transporter. His own letter, Ex. PW 19/5, clearly shows the nonexistent of transporter at the given address and that the alleged consignor was also unable to tell anything about the transporter in question.
161. The claim note, in this case, is in a different format and is without reference to para 1 to 24 as is usually in other cases. The claim note is totally silent about the requisite/mandatory compliance of section 64 VB of the Indian Insurance Act, 1938.
162. In the claim file, Ex.PW1/C, there is no mention as to which document was submitted by the claimant and whether the same were duly verified or not at the time of processing and passing of the claim as per para 24 in which the documents available are mentioned and tick marked in token of verification, is absolutely CBI vs. Rajesh Kohli & Ors. 66 of 99 pages 67 CBI case . No.24/11 missing.
163. The date and time when claim was intimated and letter or information which was treated as claim intimation, has not been mentioned in the claim note and no formal claim intimation letter from the claimant is available in the claim file, Ex. PW 1/C. No tracer/surveyor was appointed despite the fact that the alleged loss was more than Rs.2,00,000/, which was quite big sum during the relevant time. Besides this, the procedural manual was clearly flouted in this regard.
164. The original invoice, original packing list, original GR with endorsement of the consignment regarding short delivery, claim intimation letter, receipted copy of notice of claim served on the carrier, receipted AD Card in respect of the said notice, copy of the FIR and investigation report, etc. were neither available on record nor verified at the time of sanction of the claim nor any reason was recorded for dispensing of any of the documents by the accused No.1 while passing the claim in CBI vs. Rajesh Kohli & Ors. 67 of 99 pages 68 CBI case . No.24/11 question.
165. As per letter Ex. PW 19/5 (at places, it has been typed as Ex. PW 19/S in the evidence of DW 3), undue pressure was exerted dishonestly by accused Rajesh Kumar Kohli regarding recovery. Accused R. K. Kohli had adopted gross deviations without justification, while passing the claims.
166. Duly executed letter of subrogation and Special Power of Attorney, which was mandatorily required to be obtained, in such like case, in favour of NIC, were not available on record.
167. Registered letter, Ex. PW14/A, which was sent to M/s Globe Electricals, 68 Rama Building, Jal Pai Guri, West Bengal, sent by CBI, was received back with the remark that such establishment was not known. Similarly, Ex.PW14/A1 was received back undelivered. The consignee in this case was fake inasmuch as 'Jal Pai Guri' is in West Bengal and not in Assam as was reflected in the copy of the CBI vs. Rajesh Kohli & Ors. 68 of 99 pages 69 CBI case . No.24/11 letter placed on record by the claimant. Accused R. K. Kohli should have been at once struck by grave suspicion that the particulars of address given were false inasmuch as it is common knowledge that New Jal Pai Guri, is a place not known to in the Assam. Ex.PW19/M also clearly indicates that consignee did not exist in this case.
168. There was flagrant violations of the conditions of the insurance policy and procedural manual in this case. No proper notice of the claim was served in this case. In this case, the consignor was fake, consignee was fake, the transporter was nonexistent and no surveyor and tracer was appointed. The recovery made was in pursuance to criminal conspiracy and was not above board from any angle. The GR invoice, letter dated 27.10.1997 and 8.11.1997 of nonexisting consignee and letter dated 19.11.1997 of nonexisting transporter, were bogus, fake and were clearly fabricated documents, which were used in passing the fake and bogus claims.
169. Regarding the offence of cheating, the Hon'ble CBI vs. Rajesh Kohli & Ors. 69 of 99 pages 70 CBI case . No.24/11 Apex Court has observed that "when a person gets an order by playing fraud upon the competent authority, such order cannot be sustained in the eyes of law as fraud unravels everything. Fraud and justice never dwell together. Fraud is an anathema to all equitable principles and any affair tained with fraud cannot be perpetuated or saved by the application of any equitable doctrine". {Inderjeet Singh Grewal vs. State of Punjab, 2011(4) RCR (criminal) 1(SC)}.
170. In the case law reported as Devender Kumar Singla vs. Baldev Krishan Singla, 2004 Cri LJ 1774 (SC), the Hon'ble Supreme Court has observed the following points as essential ingredients to attract section 420 IPC:
1. Cheating;
2. Dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and
3. Mens rea of the accused at the time of making the inducement.
The making of a false representation is one of the ingredients for the offence of cheating under section 420."
171. In the judgment reported as Kuldip Sharma, 2000 CBI vs. Rajesh Kohli & Ors. 70 of 99 pages 71 CBI case . No.24/11 Cri LJ 1272 (Del), it has been held by the Hon'ble High Court that 'Where the accused obtained payments from the Government of India by sending the bills containing number of bogus railway receipts representing that the contracted goods had been booked and despatched under the bogus railway receipts mentioned in the bills, such false representation amounts to cheating and conviction of the accused under section 420 was held proper'.
172. In the case law reported as Ram Prakash Singh, AIR 1998 SC 296, the Hon'ble Supreme Court has held that 'Where the accused, a Development Officer in LIC, introduced false and fake insurance proposals to LIC with a view to earn promotion on the basis of inflated business, he was convicted under sections 420/511, 420/120B, 468 & 477 A'.
173. In the case law reported as AIR 2004 SC 3229, the Hon'ble Supreme Court has held that "For an offence under section 471, one of the necessary ingredients is fraudulent and dishonest use of the document as genuine. The act need not be both dishonest and fraudulent".
174. It has been asserted by the defence during the CBI vs. Rajesh Kohli & Ors. 71 of 99 pages 72 CBI case . No.24/11 course of arugments that there are defects in the investigation. It is true that the present case has not been very effectively and professionally investigated by the Investigating Officers. Had it been investigated effectively much more could have come on the surface and much larger rackets could have been unearthed, regarding the fraudulent claims that were being paid in NIC. However, so long as case of the prosecution on the basis of circumstances and documents, established and available on record is concerned, the defect, if any, in the investigation does not help the defence at all.
175. In the case law reported as 2007 Cri LJ 758(SC), it has been held by the Hon'ble Supreme Court that "Defective investigation may discredit the prosecution, but prosecution evidence may not necessarily be discarded on the ground. If the evidence is otherwise reliable and trustworthy, the court may convict the accused. Reminiscence of investigating officer will not ipso facto weaken the case of the prosecution".
176. In the case law reported as State vs. Santosh Kumar Singh, 2006(4) Crimes 782 (Del), the Hon'ble High Court has held that CBI vs. Rajesh Kohli & Ors. 72 of 99 pages 73 CBI case . No.24/11 'Courts should not be influenced by suspicious roles played by the investigation officer during investigation and criminal justice should not be made a casualty for wrongs committed by investigation officers.'
177. In the case law reported as Dhanraj Singh 2004 Cri LJ 1807 (SC), it has been held by the Hon'ble Supreme Court that 'In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to plying into the hands of the investigating officer if the investigation is designed defectively. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. Then the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice'.
178. In view of the aforesaid, overwhelming evidence, circumstances and fake, fabricated and false documents and claims, it is not far to seek that the CBI vs. Rajesh Kohli & Ors. 73 of 99 pages 74 CBI case . No.24/11 assertion of the prosecution, as against the accused persons and involvement of the accused persons is proved beyond any pale of doubt.
179. From the above discussion, it is abundantly clear that all the accused persons entered into criminal conspiracy to cheat the NIC by passing of the fraudulent and bogus claim, based upon false, forged and fabricated documents, which were used by them, in this case.
180. To attract provisions of section 13(i)(d) of the Prevention of Corruption Act, 1988, public servant should obtain for himself or any other person any valuable thing or pecuniary advantage (i) by corrupt or illegal means or (ii) by abusing his position as a public servant or (iii) without any public interest. {R. Sai Bharathi vs. J. Jayalalitha (2004) 2 SCC 9}.
181. Accused Rajesh Kumar Kohli passed the false and bogus claim, in this case, dishonestly and in CBI vs. Rajesh Kohli & Ors. 74 of 99 pages 75 CBI case . No.24/11 pursuance to the alleged conspiracy.
182. Accused Vijay Dayal preferred false and frivolous claim, based upon false, fabricated and forged documents. He was beneficiary and he pocketed the claim amount, in this case.
183. Accused Arvind Kumar Sharma joined other accused persons in the conspiracy and recovery cheque was from his account, which was deposited with the NIC without effecting any recovery from the carrier. A meagre sum, which is approximately equivalent to 10% of the claim award, in this case, was deposited, as fake recovery, without recovering anything from the transporter.
184. Accused Adarsh Agarwal, admittedly, claimed recovery charges, knowing full well that the recovery shown, in this case, was fake. Everything was CBI vs. Rajesh Kohli & Ors. 75 of 99 pages 76 CBI case . No.24/11 used as a coverup to justify as if everything has been complied with. All the accused persons joined hands and committed the alleged offences in an organized and systematical manner to defraud and cheat NIC.
185. It is well settled that the witnesses may tell lie but the circumstances and the documents, placed and proved on record will not. The documents and circumstances proved and appearing on record, in this case clearly show the involvement of all the accused persons actively, in committing all allged overt acts to achieve their goals of getting false and frivolous insurance claims, passed in this case by cheating the NIC Ltd.
186. All the accused persons are, accordingly, convicted under section 120B IPC read with section 420, 468, 471 IPC.
187. Accused Rajesh Kumar Kohli is guilty of the offence punishable under section 13 (2) r/w 13 (1) CBI vs. Rajesh Kohli & Ors. 76 of 99 pages 77 CBI case . No.24/11
(d) of the Prevention of Corruption Act, 1988, in addition.
188. Accused Vijay Dayal is guilty of the offences punishable under section 420 and 471 IPC read with section 467 and 468 IPC, in addition.
189. Accused Arvind Kumar Sharma is guilty of the offence punishable under section 468 IPC in addition.
190. Accused Adarsh Agarwal is guilty of the offence punishable under section 468 IPC, in addition.
191. Let the convicts be heard on the point of sentence, as prayed by them, on 30.11.2012. Announced in the open court ( N. K. Kaushik ) on 20.11.2012 Special Judge, PC Act CBI Dwarka Courts, New Delhi.
CBI vs. Rajesh Kohli & Ors. 77 of 99 pages 78 CBI case . No.24/11 IN THE COURT OF SHRI N. K. KAUSHIK SPECIAL JUDGE (P C ACT) CBI, DWARKA COURTS, NEW DELHI CBI Case No. : 24/11 RC No. : 1(E)/2001/EOWI/New Delhi In the matter of : CBI Versus
1. Rajesh Kumar Kohli, The then Divisional Manager, National Insurance Company Ltd., DOX, New Delhi.
R/o 187, Pragati Apartment, Club Road, Paschim Vihar, New Delhi.
2. Vijay Dayal, S/o Sh. Padam Dayal, R/o C2/159, West Enclave, Pitampura, Delhi34.
3. Arvind Kumar Sharma, S/o Late Sh. Shambhu Nath Sharma, R/o GH2/122B, Ankur Apartments, Paschim Vihar, New Delhi63.
4. Adarsh Agarwal, Manager, M/s Commercial Syndicate, 3846, Churiwalan, Delhi6.
...........Convicts CBI vs. Rajesh Kohli & Ors. 78 of 99 pages 79 CBI case . No.24/11 Date of Institution : 27.01.2003 Date on which judgment pronounced : 20.11.2012 Date on which order on sentence announced : 7.12.2012 O R D E R O N S E N T E N C E
1. By this order, I shall dispose off the contentions, raised on behalf of the parties, on the point of sentence.
2. In the present case, all the convicts have been convicted for the offence punishable under sections 120B read with sections 420, 468 and 471 IPC. Convict Rajesh Kumar Kohli has been convicted, in addition, for the offence punishable under section 13(2) read with section 13(1) (d) of the Prevention of Corruption Act, 1988. Convict Vijay Dayal has been convicted, in addition, for the offences punishable under sections 420 and 471 IPC read with sections 467 & 468 IPC. Convicts Arvind Kumar Sharma and Adarsh Agarwal, CBI vs. Rajesh Kohli & Ors. 79 of 99 pages 80 CBI case . No.24/11 both, have been convicted, in addition, for the offence punishable under section 468 IPC.
3. It has been strongly contended on behalf of the State by the Ld. Sr. PP for the CBI that this is a corruption case, in which, the convicts have been convicted, as they were operating as an organised racket and have caused illegal huge pecuniary loss to the National Insurance Company Ltd., Govt. of India Undertaking. That they have cheated the said company to the tune of Rs.2,29,003/. They have, therefore, caused loss to the public exchequer of the said amount. It has further been stated that the amount, to the extent to which the Government has been cheated, was not a small amount as the case pertains to the period much prior to the year 2000, when it was quite a sizable and fat amount.
4. The State has further contended that the maximum CBI vs. Rajesh Kohli & Ors. 80 of 99 pages 81 CBI case . No.24/11 prescribed substantive punishment with fine be handed over to all the convicts, so that enough and clear message goes to one and all and especially to the potential offenders, who are in the waiting to commit such like frauds so that the punishment act as a deterrence and the intent of the legislature is fulfilled.
5. Convict Rajesh Kumar Kohli, has prayed that a lenient view be taken on the ground that the present case dates back to the year 2000. That he has faced a trial for all these years. That he had been regularly attending the Court. That he has an old mother and wife to support. That he had, of late, taken to practice law for quite sometime and that no useful purpose will be served by keeping him away from the society, in incarceration. He has sought probation as well.
6. It has been contended on behalf of the convict Vijay Dayal that he is 43 years of age and that he is the only CBI vs. Rajesh Kohli & Ors. 81 of 99 pages 82 CBI case . No.24/11 earning member. That he has two daughters and one of them is studying in class X. That a lenient view be, therefore, taken.
7. Convict Arvind Kumar Sharma has prayed for a lenient view on the grounds that he is the sole earning member in his family and there is no one else to look after them. That the convict has faced the trial for a couple of years. That he has already stopped the business which had landed him in this case.
8. Convict Adarsh Aggarwal has prayed for lenient view and contended that he is the only earning member in his family. That he has 83 years old father and two children, who are school going.
9. All the convicts have, thus, prayed for taking a lenient view. They all have, further, prayed for release on probation.
CBI vs. Rajesh Kohli & Ors. 82 of 99 pages 83 CBI case . No.24/11
10. The contentions, raised by the the convicts, have met stiff and very strong opposition on behalf of the State. It has been urged that convict Rajesh Kumar Kohli, the then public servant, is a convict before this Court, in as many as six different cases as he had illegally and dishonestly awarded false and fraudulent insurance claims exceeding Rs.15 lakhs that too in the year 19981999, when it was quite a big sum. It has, further, been stated on behalf of the State that being a public servant at the relevant time, convict Rajesh Kumar Kohli acted corruptly with full vigour, in false claims, one after the other. It has, therefore, been urged that this convict is a habitual offender and deserves maximum punishment.
11. Regarding the convict Vijay Dayal, it is stated that he was the beneficiary of the fraudulent claim. That he pocketed the claim money, in this case, to which he was not legally entitled to. He has successfully CBI vs. Rajesh Kohli & Ors. 83 of 99 pages 84 CBI case . No.24/11 cheated the National Insurance Company Ltd. alongwith other convicts. That he is not entitled to any mercy or compassion.
12. Regarding the convicts Arvind Kumar Sharma and Adarsh Agarwal, it is stated that in pursuance to the systematic and wellplanned conspiracy, they forged reports/ documents and acted in connivance with other convicts in this case.
13. It is further urged on behalf of the State that most of the pleas taken by the convicts are routine and stock pleas and in any case, in the case under the Prevention of Corruption Act, these pleas taken are not considered as mitigating circumstances. It has, therefore, been prayed that exemplary punishment be awarded to the convicts herein.
14. On behalf of the CBI, following case law have been cited:
(i) State V A Parthiban, AIR 2007 Supreme Court 51, CBI vs. Rajesh Kohli & Ors. 84 of 99 pages 85 CBI case . No.24/11
(ii) State V Ratan Lal Arora, AIR 2004 Supreme Court 2364 &
(iii) Ram Narain Poply Vs. CBI, AIR 2003 Supreme Court 2748
(iv) State of J & K Vs. Vinay Nanda, AIR 2001 SC 611.
(v) State Vs. Rattan Lal Arora (2004) 4 SCC 590.
15. On behalf of the convicts, following case law have been cited:
(i) State of UP V Sanjay Kumar, (2012) 8 Supreme Court Cases 537,
(ii) Kamaldin & Ors V. CBI, Crl. M.C. 1401/2010,(High Court of Delhi)
(iii) State of J & K Vs. Vinay Nanda, Manu/SC/0028/2001
16. At the very outset, it is observed that there is no quarrel over the settled propositions of law discussed in the aforesaid case law, cited by the parties.
17. The Hon'ble Apex Court in the case of State of Rajasthan Vs. Vinod Kumar, decided on, 18th May, 2012 (Criminal Appeal No. 1887) reiterated the law laid down in State of J&K Vs. Vinay Nanda, AIR 2001 SC P 611, and observed that superannuation of the CBI vs. Rajesh Kohli & Ors. 85 of 99 pages 86 CBI case . No.24/11 convict and the pendency of criminal trial for over a period of time cannot be treated a special reason to reduce the sentence.
18. In the same appeal quoting 'M B Joshi Vs. State of Maharashtra, AIR 2001 SC 147' the Hon'ble Apex Court observed that:
"It is the defect of the system that longevity of the cases tried under the Prevention of Corruption Act is too lengthy. If that is regarded as sufficient for reducing the sentence mandated by the Parliament legislative exercise would stand defeated."
19. It was observed by the Hon'ble Supreme Court in the case reported as State of J & K Vs. Vinay Nanda, AIR 2001 SC P 611, that :
"Corruption at any level, by any person, of any magnitude, is condemnable, which cannot be ignored by the Judicial Courts, when proved. No leniency is required to be shown in proved cases CBI vs. Rajesh Kohli & Ors. 86 of 99 pages 87 CBI case . No.24/11 under the Prevention of Corruption Act which itself treats the offences under it of a special nature to be treated differently than the general penal offences. The convicts of the offences under the Act are to be dealt with heavy hand and deterrant rod. No populous or sympathetic approach is needed in such cases."
20. It was further observed by the Hon'ble Supreme Court in the aforesaid case that :
"Accused facing trial since long; amount allegedly misappropriated already been deposited; undergone departmental punishment; only bread earner in family; wife and three children's dependence on him are the circumstance which do not constitute 'special reasons'."
21. It was observed by the Hon'ble High Court in the cases reported as Jai Bhagwan Vs. State (NCT of Delhi), 2008 150 DLT 46 (Delhi) and Ravinder Kumar Arora CBI vs. Rajesh Kohli & Ors. 87 of 99 pages 88 CBI case . No.24/11 Vs. CBI Manu/DE/8816/2007 (Delhi) , that :
"It is a normal thing that 'trial' of the person is considered a period of 'agony' undergone by him. But we tend to forget the agony of the society and the complainant who dared lodge the complaint. The entire purpose of the legislature of sentencing the offenders stands defeated and that is the one reason that wages of corruption are considered more attractive in this country. The person caught is not always a firsttimer corrupt. He may have been indulging into corrupt activities / practices for a long number of years. It is to his advantage that the trial is prolonged. He spends a fraction of amount, earned by corrupt practices on litigation and professionals to see that ultimately he makes Criminal Justice System a laughing stock. In this process, the entire legislative purpose of punishing a corrupt stands defeated.
22. It was held by the Hon'ble Supreme Court in the case reported as State of M. P. Vs. Shambhu Dayal Nagar, CBI vs. Rajesh Kohli & Ors. 88 of 99 pages 89 CBI case . No.24/11 (2006) 8 SCC P 693, that :
"Corruption by public servant has become gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. Large scale corruption retards the nation building activities and everyone has to suffer on that count."
23. It was observed by the Hon'ble High Court in the case reported as AIR 1961, Mysore P 49, that:
"Infliction of a lenient sentence will defeat the purpose of the P. C. Act."
24. It was observed by the Hon'ble Apex Court in the case reported as State of T. N Vs. Kaliaperumal, (2005) 12 SCC 473 and State Vs. Ratan Lal Arora, (2004) 4 SCC 590 that :
"Section 18 of the Probation of Offenders Act specifically bars the offence under PC Act from the purview of the Act."
25. The convicts, therefore, cannot be enlarged on probation in this case relating to serious offences. CBI vs. Rajesh Kohli & Ors. 89 of 99 pages 90 CBI case . No.24/11
26. It was observed by the Hon'ble Supreme Court in the case reported as State of M. P. Vs. Ram Singh, AIR 2000 SC 870, that:
"Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to maliganise the polity of the country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS being incurable. The socio political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage."
27. Further, it was observed by the Hon'ble Supreme Court in the case law reported as Ankush Maruti Shinde Vs State of Maharashtra, AIR 2009 SC 2609 CBI vs. Rajesh Kohli & Ors. 90 of 99 pages 91 CBI case . No.24/11 that:
" The social impact of the crime e.g. where it relates to offences against women, decoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest cannot be lost sight of and per se require exemplary treatment. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats."
28. It was held by Hon'ble Supreme Court in the case reported as Mohd. A Hussain Vs. Asstt. Collector, Custom (Prevention) Ahmedabad, AIR 1998 SC 2143, that :
CBI vs. Rajesh Kohli & Ors. 91 of 99 pages 92 CBI case . No.24/11 "If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different. Sentencing judge should try to ensure that the totality of the sentences is correct in the light of all the circumstances of the case."
"In arriving at an appropriate sentence, the court must consider, and some times reject, many factors. The court must 'recognise, learn to control and exclude' many diverse data. It is a balancing act and tortuous process to ensure reasoned sentence."
29. It was further held by Hon'ble Supreme Court in the case reported as A. B. Bhaskara Rao vs. Inspector of Police, CBI, Vishakapatnam, 2011(4) RCR (Criminal) 290 (SC) that :
"in the case of corruption by public CBI vs. Rajesh Kohli & Ors. 92 of 99 pages 93 CBI case . No.24/11 servant, long delay in disposal, quantum of amount of bribe and that the delinquent lost his job due to conviction etc., are not to be taken as mitigating circumstances for reduction of the sentence".
30. In the case of Siddarama and Ors. Vs. State of Karnataka, 2006 IV AD (Cri.) (SC) 78, it was held that:
"undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society can no longer endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."
31. It was further held in the case law reported as Kishan Dayal vs. State, 1958 Raj LW 596 that:
" A corrupt official is a menace to the society and far from helping in the proper CBI vs. Rajesh Kohli & Ors. 93 of 99 pages 94 CBI case . No.24/11 functioning of the Government and implementing of the laws, brings the Government and the society at large into disrepute. It is through the agency of the public servants that the policy of the Legislature as well as of the Government is implemented. It is through the public servants that crimes are detected and offenders are brought to book. It is through strictly honest and incorruptible public servants that the welfare of the society can be ensured. If such public servants are open to corruption and coerce the public into paying them illegal gratification, the whole structure of the society would be upset and the policy of the Government and of the Legislature, howsoever, beneficial it may be, would gravely suffer. A public servant, therefore, once he is found to be guilty of accepting or obtaining illegal gratification, deserves no soft corner or indulgence from the Courts of Law."
32. It was held in the case reported as Madhukar CBI vs. Rajesh Kohli & Ors. 94 of 99 pages 95 CBI case . No.24/11 Bhaskarrao Joshi vs. State of Maharashtra, 2001 Cr. LJ 175(SC): that:
"When corruption was sought to be eliminated from the polity all possible stringent measures are to be adopted within the bounds of law. One such measure is to provide condign punishment. Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was precisely the reason why the sentence was fixed as seven years and directed that even if the said period of imprisonment need not be given, the sentence shall not be less than the imprisonment for one year. Such a legislative insistence is reflection of Parliament's resolve to meet corruption cases with very strong hand to give signals of deterrence as the most pivotal feature of sentencing of corrupt public CBI vs. Rajesh Kohli & Ors. 95 of 99 pages 96 CBI case . No.24/11 servants. All public servants have to face very serious consequences. If on the other hand any public servant is given the impression that if he succeeds in protracting the proceedings that would help him to have the advantage of getting a very light sentence even if the case ends in conviction, its fallout would afford incentive to public servants who were susceptible to corruption to indulge in such nefarious practices with immunity. Increasing the fine after reducing the imprisonment to a nominal period can also defeat the purpose as the corrupt public servants could easily raise the fine amount through the same means."
33. I have thoroughly and carefully considered the rival contentions. I have also examined the asserted mitigating and aggravating circumstances, pointed out by the parties. I am of the considered opinion that considering all the aspects of the matter, the following sentence shall be appropriate to meet the ends of justice and as such is awarded:
CBI vs. Rajesh Kohli & Ors. 96 of 99 pages 97 CBI case . No.24/11
(i) All the four convicts herein are awarded sentence of three years rigorous imprisonment and a fine of Rs.
5000/, in default, one month simple imprisonment, each, for the offence punishable under section 120B IPC.
(ii) Convict Vijay Dayal, who fraudulently cheated the National Insurance Company Ltd., to the tune of Rs.2,29,003/, is sentenced to four years rigorous imprisonment besides a fine of Rs.2 lakhs, in default, six months simple imprisonment for the offence punishable under section 420 IPC. For the offence punishable under section 471 read with section 467 & 468 IPC, convict Vijay Dayal shall suffer sentence of rigorous imprisonment for three years and six months and a fine of Rs.10,000/, in default, two months simple imprisonment.
(iii) Convicts Arvind Kumar Sharma and Adarsh Agarwal are awarded sentence of rigorous CBI vs. Rajesh Kohli & Ors. 97 of 99 pages 98 CBI case . No.24/11 imprisonment for three years and six months and a fine of Rs.10,000/ each, in default, two months simple imprisonment for the offence punishable under sections 468 IPC.
(iv) Convict Rajesh Kumar Kohli, who is convict in several cases, is hereby awarded a sentence of four years rigorous imprisonment and a fine of Rs. 25,000/, in default, three months simple imprisonment, for the offence punishable under section 13 (2) read with section 13 (1) (d) of the the Prevention of Corruption Act, 1988.
34. From out of the fine imposed upon convict Vijay Dayal, if realised, a sum of Rs. Two Lakhs be paid to the NIC Ltd, complainant, as compensation.
35. All the aforesaid sentences shall run concurrently.
36. Benefit of section 428 Cr.P.C. is extended to the convicts.
37. A copy of the judgment and order on sentence be given CBI vs. Rajesh Kohli & Ors. 98 of 99 pages 99 CBI case . No.24/11 to all the convicts, free of cost, forthwith.
38. File be consigned to record room.
Announced in the open court ( N. K. Kaushik ) th on 7 December, 2012 Special Judge (PC Act) CBI Dwarka Courts CBI vs. Rajesh Kohli & Ors. 99 of 99 pages