Delhi District Court
Cbi vs . 1. Rajesh Kohli, on 7 December, 2012
1
CBI case . No.19/11
IN THE COURT OF SH. N. K. KAUSHIK
SPECIAL JUDGE, PC ACT, CBI,
DWARKA COURTS, NEW DELHI
CBI Case No. 19/11
Date of Institution: 27.01.2003
Date on which Judgment Pronounced: 20.11.2012
Decision: Conviction
CBI case no. 19/11
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. Anil Maheshwari,
S/o Sh. S. Prasad Maheshwari,
R/o 1716, Gali Piauwali,
Dariba, Delhi6.
3. Arvind Kumar Sharma,
S/o Late Sh. Shambhu
Nath Sharma,
R/o GH2/122B,
Ankur Apartments,
Paschim Vihar, New Delhi63.
4. Kunwar Vijay Juneja,
S/o Late Vir Bhan,
R/o A26, Saraswati Garden,
New Delhi15.
CBI vs. Rajesh Kohli & Ors. 1 of 115 pages
2
CBI case . No.19/11
5. Vinod Kumar Bhutani,
The then Assistant
Administrative Officer,
in National Insurance Ltd.
DOX, New Delhi.
(Now posted as
Administrative Officer,
DOI in National Insurance
Ltd, Delhi.)
S/o Sh. Sukh Dayal Bhutani,
R/o AGI, Shiva Enclave,
Opp. Ordinance Depot,
Rohtak Road, Delhi.
.............Accused persons
JUDGMENT
1. This is a corruption case under Prevention of Corruption Act, 1988, registered by the CBI, as against the accused persons and is relating to the fraudulent insurance claim wherein consignor and consignee were nonexistent at the given address and which was preferred, processed and passed by the accused persons, in pursuance to a well knit criminal conspiracy.
2. The case set up by the prosecution, is that insurance policy number 21451842/97 was issued by Division OfficeX to M/s Supreme Trading Corporation, 3499, Chawri Bazar, Delhi6, for dispatch of industrial hardware goods from CBI vs. Rajesh Kohli & Ors. 2 of 115 pages 3 CBI case . No.19/11 Delhi to Ernakulam. That the consignment was sent to M/s Rajan Enterprises, 68/4 Main Bazar, opposite Post Office, Ernakulam, vide RR no. 645451, dated 13.12.97 of Northern Railways.
3. It is further alleged that the insured, M/s Supreme Trading Corporation, vide their letter, dated 19.01.98 had intimated the loss of consignment to the Divisional Office. That the said letter was received by accused, Rajesh Kohli, the then Divisional Manager, who appointed M/s Pooja International as a 'tracer'. That he also wrote a letter, dated 04.02.98 to M/s Pooja International, intimating their appointment as 'tracer' in this case.
4. It is further alleged that M/s Supreme Trading Corporation could not be found at the given address.
5. It is further alleged that it was revealed that accused Anil Maheshwari was the account holder of M/s Supreme Trading Corporation with Corporation Bank, Chandni Chowk, where the proceeds of the above claim were credited.
CBI vs. Rajesh Kohli & Ors. 3 of 115 pages 4 CBI case . No.19/11
6. It is further alleged that during investigation, it was informed by Kochi Vigilance Officer that M/s Rajan Enterprises, the consignee, was not found existing at Ernakulam.
7. It is further alleged that the aforesaid consignment was sent through railway and regarding which, letters were also written to the railways.
8. It is further alleged that nondelivery certificate issued by Southern Railway, Ernakulam, on verification through Kochi Vigilance Officer was found to be fake.
9. It is further alleged that in spite of repeated visits to the address of the insured, accused Anil Maheshwari could not be found. That, however, his younger brother Manish Maheshwari, was found, who revealed that he had never raised any invoice of Rs.4,56,400/.
10. It is further alleged that the aforesaid claim note was signed by accused persons, V.K. Bhutani, the then Assistant Administrative Officer & Rajesh Kohli, the then Divisional Manager, both public servants. That since the CBI vs. Rajesh Kohli & Ors. 4 of 115 pages 5 CBI case . No.19/11 loss was within the financial authority of DCC, it was passed by them, comprising of accused, V.K. Bhutani, the then Assistant Administrative Officer and accused Rajesh Kohli, the then Divisional Manager.
11. It is further alleged that though the receipt and loading of the consignment was confirmed by the railways but in view of the fact that since the consignee was not found at Ernakulam, a suspect of the said claim being bogus, was raised.
12. It is further alleged that mere sending goods by railway in packed wooden cases, does not confirm that the cases indeed contained the consignment of electrical goods, as mentioned in the invoice raised by Supreme Trading Corporation, the consignee.
13. After the matter was investigated, the case of the prosecution, in brief, is that during the year 19971998, at New Delhi and other places, all the accused persons were party to a criminal conspiracy by having agreed to do an illegal act i.e. to cheat National Insurance Company Ltd., Divisional OfficeX, New Delhi, by fraudulently inducing it CBI vs. Rajesh Kohli & Ors. 5 of 115 pages 6 CBI case . No.19/11 to sanction bogus claim of insurance in the name of M/s Supreme Trading Corporation 3499, Chawari Bazar, Delhi, a nonexisting firm, under the proprietorship of the accused Anil Maheshwari to the extent of Rs.4,59,163/, on the basis of forged, fake, bogus & false documents i.e. invoice, GR, Survey Report etc.
14. Further, accused Anil Maheshwari, in furtherance of the aforesaid criminal conspiracy, obtained Marine Policy no. 21451842/97 for sending a consignment of Industrial Hardware goods from M/s Supreme Trading Corporation, Delhi to M/s Rajan Enterprises, Ernakulum through Railway Receipt No. 645451 and intimated the NIC Ltd. DOX, New Delhi about the non delivery of the consignment and that the accused Rajesh Kumar Kohli deputed accused Arvind Kumar Sharma of M/s Pooja International for 'tracing', who submitted bogus 'tracing report' on behalf of M/s Pooja International, without tracing the consignments and that accused Kunwar Vijay Junena signed forged and fabricated tracing report and submitted TA/DA bill on behalf of M/s Pooja International and that accused V.K. Bhutani, the then AAO, processed the claim proposal and that accused Rajesh Kumar Kohli CBI vs. Rajesh Kohli & Ors. 6 of 115 pages 7 CBI case . No.19/11 passed the claim in favour of M/s Supreme Trading Corporation, Delhi for Rs.4,59,163/ and that the accused Anil Maheshwari received the claim amount through cheque no. 103381 and that the amount was credited in the account No. 1574 of M/s Supreme Trading Corporation. All accused persons, thus, are alleged to have committed offences punishable, under sections 120(B) read with sections 420, 467, 468, 471, IPC and section 13(2) read with section section 13(1)(d) of the Prevention of Corruption Act, 1988.
15. 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 by use of illegal means and abusing his official position, induced NIC, DOX and sanctioned claim amount of Rs.4,59,163/ in favour of M/s Supreme Trading Corporation, Delhi, on the basis of false, forged and bogus documents and thereby enabled accused Anil Maheshwari of M/s Supreme Trading Corporation, Delhi to obtain pecuniary advantage to the tune of Rs.4,59,163/ and corresponding loss to the NIC Ltd. Divisional OfficeX, New Delhi. Accused Rajesh Kohli, thus, is alleged to have CBI vs. Rajesh Kohli & Ors. 7 of 115 pages 8 CBI case . No.19/11 committed an offence punishable under section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988.
16. Further, during the aforesaid period at Delhi and other places accused V.K. Bhutani, being a public servant in the capacity of AAO, NIC Ltd., Divisional OfficeX, New Delhi, by use of illegal means and abusing his official position, induced and persuaded NIC, DOX by forwarding and processing the claim proposal on the basis of false, forged & bogus documents to ensure the grant of claim amount of Rs.4,59,163/, in favour of M/s Supreme Trading Corporation, Delhi, and upon his recommendation, the claim amount was sanctioned. He, thereby, enabled accused Anil Maheshwari of M/s Supreme Trading Corporation, Delhi to obtain pecuniary advantage to the tune of Rs.4,59,163/ 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 Prevention of Corruption Act, 1988.
17. Further, during the aforesaid period at Delhi and other places, accused Anil Maheshwari, dishonestly induced CBI vs. Rajesh Kohli & Ors. 8 of 115 pages 9 CBI case . No.19/11 Divisional OfficeX, New Delhi, to sanction insurance claim of Rs.4,59,163/, in favour of M/s Supreme Trading Corporation, Delhi, on the basis of false, forged and bogus documents i.e. invoice, survey report, RR etc. and received a cheque of claim amount of Rs.4,56,400/ which was credited in the account no. 4995 of M/s Supreme Trading Corporation, Delhi, of which he was the proprietor. Accused Anil Maheshwari, thus, is alleged to have committed an offence, punishable under section 420 IPC.
18. Further, during the aforesaid period at Delhi and other places, accused Anil Maheshwari fraudulently used false, forged & bogus documents i.e. invoice, survey report, RR etc. as genuine for the purpose of cheating, knowing fully well that these documents were forged, false & bogus. He, thus, is alleged to have committed an offence punishable, under section 471 read with 467 and 468 IPC.
19. Further, during the aforesaid period at Delhi and other places, accused Arvind Kumar Sharma was appointed as 'tracer' being proprietor of M/s Pooja International, who submitted a bogus tracing report to NIC Ltd. DOX, New Delhi with regard to claim of M/s Supreme Trading CBI vs. Rajesh Kohli & Ors. 9 of 115 pages 10 CBI case . No.19/11 Corporation, without tracing the consignment. Accused Arvind Kumar Sharma, thus, is alleged to have committed an offence, punishable under section 468 IPC.
20. Further, during the aforesaid period at Delhi and other places, accused Kunwar Vijay Juneja had signed tracing report and bill on behalf of M/s Pooja International, which was appointed as 'tracer' in claim proposal of M/s Supreme Trading Corporation, Delhi and the said tracing report was signed by him, without tracing the consignment, which enabled M/s Supreme Trading Corporation, Delhi, to obtain insurance claim from NIC, DOX, New Delhi. Accused Kunwar Vijay Juneja, thus, is alleged to have committed an offence, punishable under section 468 IPC.
21. Primafacie, offences under section 120B read with sections 420, 467, 468, 471 IPC and section 13(2) read with section 13(1)(d) of Prevention of Corruption Act, 1988 against all the accused persons and substantive offences under section 13(2) read with section 13(1)(d) Prevention of Corruption Act, 1988, in addition, against accused Rajesh Kumar Kohli and Vinod Kumar Bhutani, under CBI vs. Rajesh Kohli & Ors. 10 of 115 pages 11 CBI case . No.19/11 sections 420 and 471 read with sections 467 & 468 IPC against accused Anil Maheshwari, under section 468 IPC against accused persons namely, Arvind Kumar Sharma and Kunwar Vijay Juneja were made out.
22. Charge, accordingly, was framed against the accused persons, to which, they pleaded not guilty and claimed trial.
23. The prosecution, therefore, has alleged in this case that :
(a) Consignee M/s Rajan Enterprises was not found at the address and as such, was non existent.
(b) Non Delivery/Damage Certificate issued by Southern Railway was fake.
(c) Accused Anil Maheshwari, owner of Supreme Trading Corporation(a non existent firm), was the claimant and beneficiary of the bogus insurance claim and pocketed its cheque, amounting to Rs.4,59,163/.
(d) Accused Rajesh Kohli abusing his power and position passed the said claim. Accused V. K. Bhutani dishonestly processed it.
(e) Accused Arvind Sharma and accused Kunwar Vijay Juneja of Pooja International submitted fake tracing report on CBI vs. Rajesh Kohli & Ors. 11 of 115 pages 12 CBI case . No.19/11
24.2.1998. That M/s Pooja International was appointed as Tracing Agent by accused Rajesh Kumar Kohli, in pursuance to the alleged criminal conspiracy.
(f) That the accused persons caused illegal loss amounting to Rs.4,59,163/ to NIC as a result of the alleged offences.
24. The prosecution, in order to substantiate its claim and contentions, examined as many as 22 witnesses, in all.
25. Thereafter, the accused persons were examined under section 313 Cr. P.C.
26. Defence has also produced three witnesses, including accused persons Rajesh Kohli and V.K. Bhutani, in support of their defence.
27. The prosecution, has contended that the case of the prosecution has been squarely proved, in view of the documents, circumstances and other material that has appeared on record. That the prosecution witnesses have supported and proved the prosecution version beyond any pale of doubt.
CBI vs. Rajesh Kohli & Ors. 12 of 115 pages 13 CBI case . No.19/11
28. On behalf of the defence, on the other hand, it has been stated that the prosecution has failed to prove its case beyond reasonable doubt.
29. On behalf of the defence, some written arguments have also been filed, which have been placed on the record.
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, mentioned in the written submissions. However, none of the contentions and law help or support the accused persons, in any manner, whatsoever, in view of the strong evidence, circumstances and documents appearing on record as against them.
31. I have carefully gone through the entire relevant material appearing on record and have given considered thought to the same. I have also considered the rival arguments that have been advanced, at the bar. My findings are as under:
32. PW1, Sh. A.K. Seth was the Vigilance Officer, who was posted in Vigilance Department of National Insurance Company during the relevant period from January, 1992 to CBI vs. Rajesh Kohli & Ors. 13 of 115 pages 14 CBI case . No.19/11 March, 2003.
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 Supreme Trading Corporation as Ex.PW1/A, having his signatures at 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. The said letter bears his signatures at pt. A, which he has proved.
36. PW1 has further proved the letters, dated 31.05.99 and CBI vs. Rajesh Kohli & Ors. 14 of 115 pages 15 CBI case . No.19/11 28.09.99, which are Ex.PW1/E and Ex.PW1/D, respectively. He has further deposed that the said letters are the replies of letters, which were sent for verification of M/s Rajan Enterprises to Vigilance Officer, NIC Limited, Kochi, RO, bearing signatures of Mr. K.V.P. Namboothiri at pt. A, which have been duly identified by PW1 as he had received communication from him, in due course, in the official capacity.
37. PW1 has further deposed that he had examined the claim file no. 351000/2145/97/98/66, regarding M/s Supreme Trading Corporation, which has been proved as Ex.PW1/C (consisting of 26 sheets).
38. PW1 has further deposed that M/s Pooja International and M/s Honey International were among the approved recovery agents and that as per their record, accused K.V. Juneja was the owner of M/s Honey International. He has further deposed that all the divisional offices, which were in the jurisdiction of DRO I & II, were authorized to appoint any of the approved recovery agents and that these approved recovery agents were for DOX and DO XIII.
CBI vs. Rajesh Kohli & Ors. 15 of 115 pages 16 CBI case . No.19/11
39. PW2, Sh. Lalit Chawla is an independent witness. He has deposed that in the year 2003, he was running business of electrical goods at shop no. 3499, Chawri Bazar, Delhi6, in the name & style of M/s R.K. Electrical Works, which was in existence for the last 1015 years. He has further deposed that no other firm was doing any business in the said shop. His deposition, therefore, show that M/s Supreme Trading Corporation did not exist at the aforesaid address, given by the accused Anil Maheshwari.
40. PW3, Sh. Sushant Rohtagi was another independent witness. He was the owner of M/s Hari Electricals, shop no. 3495, Chawri Bazar, Delhi, who was running the business of electrical goods, for the last twenty years, at the above address. He has deposed that there was no firm by the name of M/s Supreme Trading Corporation at shop no. 3499, Chawri Bazar, Delhi, since last twenty years. He has, thus, corroborated the version of the prosecution as also of PW2.
41. PW4, Sh. Anil Kumar Tiwari, was posted as Administrative Officer in Vigilance Department of National Insurance CBI vs. Rajesh Kohli & Ors. 16 of 115 pages 17 CBI case . No.19/11 Company during the period from 1997 to 2000.
42. PW4 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 claims of M/s Santoshi Chemicals, M/s Supreme Trading Corporation, M/s Evershine Enterprises, M/s Super Traders, M/s Vinayak Polymers and M/s G.S. Financial & Computer Consultancy. He has identified his signatures at point B and that of PW1, Sh. A.K. Seth, at pt. A, on the said report.
43. PW4 has further deposed that he had gone through the file, which is Ex.PW1/C, regarding claim of M/s Supreme Trading Company, consisting of 26 pages, while submitting the said report. PW4 has, thus, corroborated the version of PW1, in as much as, the report, Ex.PW1/A and file Ex.PW1/C are concerned.
44. PW5, Sh. Krutivas Mahapatra was posted as Chief Vigilance Officer in National Insurance Company Ltd., Calcutta, from December, 1997 to March, 2002. He has deposed that he had received the report, dated 28.09.1999, which was prepared by PW1, Sh. A.K. Seth, the then CBI vs. Rajesh Kohli & Ors. 17 of 115 pages 18 CBI case . No.19/11 Vigilance Officer along with PW4, Sh. A.K. Tiwari and which was also signed by them.
45. PW5 has further deposed that he had found that six false marine claims, amounting to Rs.15,93,568/ were settled in DivisionX. That after getting approval from Chairman cum Managing Director, he had referred the matter to the CBI, on 29.09.2000. He has further deposed that he made a complaint to the CBI. The copy of complaint has been proved as Ex.PW3/A.
46. PW5 has also reiterated, the report, Ex.PW1/A, which was submitted by PW1, Sh. A.K. Seth. He has further deposed that any party cannot be appointed as 'surveyor' in his own case even though is otherwise qualified to be appointed as 'surveyor'.
47. PW6, 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 CBI vs. Rajesh Kohli & Ors. 18 of 115 pages 19 CBI case . No.19/11 worked with accused Rajesh Kohli for about two and half years, in his office. That he used to go out for receipt and delivery of post, on behalf of accused Rajesh Kohli. That he used to be paid Rs.1,000/, per month, as wages.
48. PW6 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, during the end of the year 1995 or beginning of the year 1996.
49. PW6 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 the accused Rajesh Kohli. That generally, one cheque in a month was used to be 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. 19 of 115 pages 20 CBI case . No.19/11
50. PW6 has further deposed that accused Vinod Kumar Bhutani also used to give him cheques in his name, which were deposited by him in the aforesaid bank account. That he used to withdraw cheque amount from the bank and hand it over either to accused Rajesh Kohli or in his absence, to accused Vinod Bhutani, as was instructed by accused Rajesh Kohli.
51. PW6 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 as well as accused V.K. Bhutani had asked him 23 times to issue a blank cheque but he had not obliged them. That thereafter, on the asking of accused Vinod Kumar Bhutani, he had closed his account in Canara Bank, in 1998. That subsequently, his agency was also closed.
52. PW6 has further deposed that in the Bank of Baroda, Asaf Ali Branch, his saving bank account number was 30645 and in Canara bank, his account no. was 28415. He has CBI vs. Rajesh Kohli & Ors. 20 of 115 pages 21 CBI case . No.19/11 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 accused Vinod Bhutani. He has further deposed that he was submitting income tax returns regularly, since the year 1999.
53. PW6 has further deposed that he had handed over form no. 16A, in respect of B.N. Tiwari, copy of which is Ex.PW6/1, 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.PW6/2, was filled by him, having his signatures and that when the same was filled, a cheque was issued in his favour.
54. PW7, 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. CBI vs. Rajesh Kohli & Ors. 21 of 115 pages 22 CBI case . No.19/11
55. PW7 has further deposed that the file, Ex.PW1/C, does not contain the railway receipt though it contains a letter from Supreme Trading Corporation, whereby they claimed to have submitted original railway receipt along with other documents. That the said file also does not contain non delivery certificate.
56. PW7 has further deposed that in claim note, dated 08.06.98, which is Ex.PW3/D1, there is a mention of railway receipt number and date and non delivery certificate as in the list of documents these two documents have been ticked in token of the fact that these documents were submitted along with the claim. He has further deposed that original railway receipt was compulsory to be filled in a claim of non delivery of goods. In the present case, he could not see as to whether any recovery from carrier viz railways was done or not.
57. PW8, 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.PW8/A. The said letter is addressed to Sh. Alok Mittal, SP, CBI, bearing his signatures at pt. A, which have been duly identified by CBI vs. Rajesh Kohli & Ors. 22 of 115 pages 23 CBI case . No.19/11 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.
58. PW9, 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.
59. PW9 has deposed that on 08.02.01, he had handed over six claim files to the Investigating Officer at office at Lok Nayak Bhawan, New Delhi, which are Ex.PW1/C(colly), vide seizure memo, copy of which is Ex.PW9/A(running into two pages). He has duly identified his signatures on the said seizure memo, at pt. A.
60. PW Sh. K. K. Soni was examined as PW9A. He has deposed that in the year 2002, he was posted as Chief Manager in Overseas Bank, Parliament Street Branch. He reiterated letter, Ex.PW7/A, which was written by him to Sh. Alok Mittal, the then SP, CBI. He has deposed on the basis of the record. He has further deposed that whatever has been written in the said letter, is correct, according to the CBI vs. Rajesh Kohli & Ors. 23 of 115 pages 24 CBI case . No.19/11 record.
61. PW10, Sh. Trilok Nath Bhatia has deposed that in July, 2002, he was posted as Incharge of Railway City Booking Agency, Northern Railway, Baraf Khana, Subzi Mandi, Delhi and that he was posted there from 1986, onwards. He has further deposed that Sh. Madan Lal Jaggi & Sons was the owner of the aforesaid agency, which was authorized for booking parcel, goods and ticket booking on behalf of Northern Railway.
62. PW10 has further deposed that the entire details of the booking etc were used to be sent to the railways. He has deposed about railway receipts. That they used to prepare four copies of the same and that one copy used to be sent to the consignor, one to the accounts office, one for guard portion for consignment and one copy was retained for record purpose.
63. PW10 has further deposed that as per railway receipt no.
645451, dated 13.12.97, four packets of hardware goods were booked by M/s Supreme Trading Corporation, Chawri Bazar, Delhi. He has further deposed that the CBI vs. Rajesh Kohli & Ors. 24 of 115 pages 25 CBI case . No.19/11 goods were booked after receipt of forwarding note, Mark PW10/1, which was submitted by M/s Supreme Trading Corporation and that thereafter, railway receipt, which is Mark PW10/2, was issued. That the goods were then sent to Parcel Office of Northern Railway, under summary no. 8915, dated 23.12.97 along with lot of 138 packets. He has further identified the signatures of one Sh. Dogra on the said summary, which has been proved as Ex.PW10/A. He has further deposed that thereafter, goods were loaded, which was duly acknowledged by Chief Parcel Supervisor Northern Railways, vide his noting at pt. X on Mark PW10/2.
64. This witness has clearly deposed that generally, they do not check the goods, while booking the same, however, they do check the outward condition of the packets and that they book the goods on the basis of declaration given by supplier and that they do not insist for insurance of goods to be transported.
65. PW10 has further deposed that as per Mark PW10/2, the goods were sent to M/s Rajan Enterprises, opposite post office Ernakulam and that the charges claimed by their CBI vs. Rajesh Kohli & Ors. 25 of 115 pages 26 CBI case . No.19/11 office for booking were Rs.350/. He has further identified the signatures of Sh. Ved Prakash, at pt. B, on the railway receipt, who was his subordinate, at the relevant time. He has further deposed that at the back of Ex.PW10/A, it has been mentioned that Sh. Ram Naresh carried Ex.PW10/A and delivered the same to Raghuvir Singh, a parcel clerk, who acknowledged the same in Ex.PW10/A, at pt. B and that the date of delivery of goods was, 24.12.1997.
66. PW11, Sh. Rajesh Bali was posted as an Officer in Corporation Bank, Chandni Chowk Branch, in October, 2002. He was promoted as an officer in the year 1997 and was posted at Paschim Vihar, New Delhi.
67. PW11 has proved the statement of current account no.
1574 of M/s Supreme Trading Corporation, for the period w.e.f 01.04.98 to 31.03.2000, as Ex.PW11/A(running into seven pages), bearing his signatures at pt.A on the last page, and his initials at pt. A, on first six pages, which have been duly identified by him. He has further deposed that the said statement has been certified, as per Banker's Book of Evidence Act.
CBI vs. Rajesh Kohli & Ors. 26 of 115 pages 27 CBI case . No.19/11
68. PW11 has further proved the specimen signatures card of the Corporation Bank, bearing specimen signatures of accused Anil Maheshwari, proprietor of M/s Supreme Trading Corporation, as Ex.PW11/B.
69. He has proved the paying in slip, dated 24.06.98 in respect of current account no. 1574 of M/s Supreme Trading Corporation for Rs.4,56,400/(claim amount in this case), vide which cheque no. 103381 of Indian Overseas Bank, Parliament Street, New Delhi, was deposited, as Ex.PW11/C. He has further deposed that according to Ex.PW11/A, amount of aforesaid cheque was credited on 25.06.1998, in the said account.
70. PW11 has further deposed that cheque no. 35724, dated 26.06.98, for sum of Rs.1,60,000/ and cheques no. 35725 & 35726, both dated 27.06.98, for sum of Rs.1,00,000/ and Rs.26,665/, respectively, which are marked as Mark PW11/1 to Mark PW11/3, were drawn on 26.06.98, 27.06.98 & 30.06.98, respectively, as per the statement of current account no. 1574 of their bank, which was closed on 19.07.99.
CBI vs. Rajesh Kohli & Ors. 27 of 115 pages 28 CBI case . No.19/11
71. PW12, Sh. Suraj Prakash was posted as Head Parcel Clerk at Delhi Railway Station. He was working in Old Delhi Railway Station from May, 2000.
72. PW12 has reiterated summary of railway receipt, Ex.PW10/A. He has further deposed that four packets of goods, which were booked to Ernakulam destination, were received on 24.12.97. That the said goods were dispatched by the parcel clerk on 26.12.97 in wagon no. SE 80878 to the parcel office, Madras Railway Station, as per loading details, encircled at portion X on Mark PW10/2.
73. PW12 has further deposed that they do not get any intimation whether goods are delivered at the given destination in the railway receipt and that the said information can be obtained from destination office and that there is no prescribed proforma for non delivery certificate of the goods.
74. PW12 has further deposed that in the present case, destination office was parcel office in Madras Railway Station. He has further deposed that Mark PW12/1, is the copy of non delivery certificate, dated 27.05.1998, which CBI vs. Rajesh Kohli & Ors. 28 of 115 pages 29 CBI case . No.19/11 was issued in respect of receipt no. 645451, dated 13.12.97, certifying that the consignment sent by M/s Supreme Trading to Consignee Rajan Enterprises, was not received at Ernakulam till 27.05.98.
75. PW13, Smt. Hem Lata Ahuja was posted as Stenographer in DOX, National Insurance Company Ltd during the relevant period.
76. PW13 has further deposed that she had taken the dictation of note, dated 08.06.98, contained at serial no. 24 & 25 in claim file, Ex.PW1/C, pertaining to claim no. 351000/2145/9798/66 of M/s Supreme Trading Corporation, which is Ex.PW3/D1. She has deposed that the said note was dictated to her by accused Rajesh Kumar Kohli, which bears her signatures at pt. A and that of accused persons namely, Rajesh Kumar Kohli and Vinod Kumar Bhutani at pts. B and C, respectively, which have been duly identified by her.
77. PW13 has further deposed that she did not have any personal knowledge, in respect of any of the cases and that whatever, she had done, she had done in the capacity of a CBI vs. Rajesh Kohli & Ors. 29 of 115 pages 30 CBI case . No.19/11 stenographer. Her deposition, therefore, shows that the claim in question was processed and passed by accused Vinod Kumar Bhutani and Rajesh Kumar Kohli only.
78. PW14, Sh. Deepak Choudhary 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 he remained as Incharge there in the department till August or September, 1998, and thereafter, resigned.
79. PW14 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.
80. PW14 has further deposed in detail about the procedure for issuance of receipt in their department.
81. PW14 has further deposed that the file, Ex.PW1/C, pertaining to M/s Supreme Trading Corporation, reflects CBI vs. Rajesh Kohli & Ors. 30 of 115 pages 31 CBI case . No.19/11 that no recovery was made and as such, no recovery fee was paid.
82. After going through the page nos. 6 to 11, which is a tracing report and 18A, which is a bill, of the said file, the witness has further deposed that M/s Pooja International was appointed as 'tracer' to whom tracing fee was paid, vide cheque no. 103415, dated 26.06.1998. He has further deposed that there is an entry in this regard, which is at red encircled portion.
83. PW14 has further proved the statement of commission, copy of which is Ex.PW14/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.
84. PW14 has further deposed that there is an acknowledgment of M/s Pooja International at page no. 5 of the said file and that all the documents were received by the said M/s Pooja International.
CBI vs. Rajesh Kohli & Ors. 31 of 115 pages 32 CBI case . No.19/11
85. PW14 has further deposed that file, Ex.PW1/C, pertaining to M/s Supreme Trading Corporation contains the original documents and that no recovery from the carrier was made as recovery agent was not appointed, in this case. This speaks of the dishonesty and abuse of official position by accused Rajesh Kohli as recovery against Railways could have exposed the fraud in this case.
86. PW14 has further deposed that accused V.K. Bhutani was the Accounts Officer, prior to him. That the underwriting documents included proposal letter/proposal form, copy of premium receipt, copy of policy document, the correspondence, relating to accepting the insurance and pre dispatch inspection, if any, and that the underwriter was the person, who had accepted and issued the policy.
87. PW14 has further deposed that the sum assured in respect of M/s Supreme Trading Corporation was Rs.4,58,000/.
88. On being asked specifically, about Open Policy, PW14 has deposed that Open Policy is issued to a person on the basis of a turnover and he is supposed to give the CBI vs. Rajesh Kohli & Ors. 32 of 115 pages 33 CBI case . No.19/11 declaration for each & every transaction to the insurance company for insuring the same, under open policy and declarations are to be given compulsorily, within a particular period as stipulated, within the policy itself. He has further deposed that if the sum assured is exhausted, then no declaration is adjusted. He has further deposed that the underwriting means booking of insurance business and before booking to check the business and to see its viability. He has further deposed that the underwriting dockets are not available in the files.
89. PW15, Sh. A.V.P. Namboothiri has deposed that in the year 1999, he was posted at the Cochin Regional Office of National Insurance Company Ltd., as Assistant Manager.
90. PW15 has further deposed that on 13.04.99, two letters were received in their office from Delhi Office of the company to verify addresses of two companies namely, M/s Rajan Enterprises and M/s Venkateshwara Handlooms, which were, accordingly, verified and a report regarding the same, was given by him, vide letter, dated 31.05.99. The said letter is already, Ex.PW1/E, which bears his signatures at pt. A, which have been duly identified by CBI vs. Rajesh Kohli & Ors. 33 of 115 pages 34 CBI case . No.19/11 the witness.
91. PW15 has further reiterated letter, dated 28.09.99, Ex.PW1/D, which bears his signatures at pt. A, which the witness duly identified. He has further deposed that the said letter was sent by PW1,Sh. A.K. Seth, the then Vigilance Officer, which also contains an enclosure, which is Mark PW10/2. He has further deposed that both the aforesaid letters, contain his verification qua the address of M/s Rajan Enterprises.
92. PW16, Sh. S.N. Chaudhary has deposed that he was posted in Oriental Bank of Commerce at Paschim Vihar from May, 2001 to May, 2005.
93. PW16 has further deposed that vide, letter dated 26.09.2002, copies of account opening forms and statement of accounts of current account no. 279 of M/s Puja International and current account no. 405 of M/s Honey International, were sent to Addl. Superintendent of Police, CBI. The said letter has been proved by him as Ex.PW16/A, bearing his signatures at pt. A, which he duly identified.
CBI vs. Rajesh Kohli & Ors. 34 of 115 pages 35 CBI case . No.19/11
94. PW16 has further deposed that original opening form of M/s Puja International was seized by Sh. R.K. Bakhta, Dy. Superintendent of Police, CBI, vide seizure memo, dated 20.05.02, the attested copy of same has been exhibited as Ex.PW16/A1. He has further proved the copy of account opening form, dated 23.06.96, along with specimen signatures card of M/s Puja International, which has been duly certified by him, as Ex.PW16/A2, colly. He has further proved the attested copy of statement of account, in respect of M/s Puja International for the period w.e.f 27.06.98 to 04.09.98, which is Ex.PW16/A3.
95. PW17, Sh. B.S. Bisht has deposed that during the period w.e.f 2000 to December, 2004, he was posted in CBI, Economic Offences Wing, New Delhi. He has further 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. CBI vs. Rajesh Kohli & Ors. 35 of 115 pages 36 CBI case . No.19/11
96. Sh. B.S. Bisht was also examined as PW18. He has deposed that he was posted as Inspector, CBI, EOWI, New Delhi on 11/12.09.02. He has further deposed that he had conducted part investigation of this case and during the course of part investigation, he had recorded the statement of Sh. Dhanu Mishra, on 11.09.02, when he had visited the Star Apartments, Sector9, Rohini, Delhi. That he had also recorded statement of Sh. Parmod Kumar Tripathi, who was postman and Surender Mohan Sehgal, under section 161 Cr.P.C, on 12.09.02. He has further deposed that the statement of Sh. Parmod Kumar Tripathi, was recorded by him at the place of his posting i.e. Sector7, Rohini, Delhi and that of Sh. Surender Mohan Seghal at Ganga Triveni Apartments, Sector9, Rohini, Delhi. He has further deposed that after recording the said statements, he had handed over the same to the Chief IO of the case, for necessary action.
97. PW19, Sh. R.K. Kaul has deposed that on 03.03.03, he was posted as Assistant General Manager in National Insurance Company, Delhi, Regional OfficeI, Connaught Place, Jeevan Bharti Building, New Delhi. CBI vs. Rajesh Kohli & Ors. 36 of 115 pages 37 CBI case . No.19/11
98. PW19 has further deposed that vide order, dated 03.03.03, he had accorded sanction for prosecution, in respect of accused Vinod Kumar Bhutani, who was the then Assistant Administrative Officer in NIC, Divisional OfficeX, Delhi, for commission of offence, punishable under section 120B read with 420, 467, 468, 471 IPC and section 13(2) read with section 13(i)(d) of Prevention of Corruption Act, 1998, which has been proved by him as Ex.PW19/A (running into two pages). He has further deposed that he had gone through the investigation report of CBI and had perused the statements of witnesses and documents, mentioned in evidence and was satisfied that accused Vinod Kumar Bhutani had committed the aforesaid offences and that being Assistant General Manager, he was competent authority to remove him. He has further identified his initials, on first page & signatures, on 2nd page, at pt. A, on the said order.
99. PW20, Sh. Jyoti Kumar, was one of the Investigating Officer of this case. He has deposed that Sh. R.P. Kaushal was the Chief IO of this case, whom he had handed over further investigation of this case.
CBI vs. Rajesh Kohli & Ors. 37 of 115 pages 38 CBI case . No.19/11
100. PW20 has further deposed that the letter dated 12.02.02 was sent to him by the Chief Manager, Corporation Bank, providing, certified copies of statement of accounts, in respect of M/s Supreme Trading Corporation. The copy of the said letter has been proved by him as Ex.PW20/A.
101. PW20 has further deposed that vide seizure memo, dated 08.02.01, documents mentioned therein, were seized from Sh. P.K. Aggarwal, the then Administrative Officer, Vigilance Department, NIC, Connaught Circus, New Delhi. The copy of the same has been proved as Ex.PW20/B.
102. PW20 has further deposed that during the course of investigation, he had seized various documents and recorded statements of various witnesses. He has further deposed that the letter no. OR0139/2002, dated 08.04.2002, was received by him, on 11.04.2002 from Chief Manager, Corporation Bank, which has been proved as Ex.PW20/C, having his initials at pt. A, which the witness duly identified.
103. PW20 has further deposed that vide said letter, a specimen signatures card, already Ex.PW11/B, paying in slip, dated CBI vs. Rajesh Kohli & Ors. 38 of 115 pages 39 CBI case . No.19/11 24.06.98 for sum of Rs.4,56,400/, already Ex.PW11/C and cheque no. 035724, dt. 26.06.98 for Rs. 1,60,000/, cheque no. 035725, dt. 27.06.98 for Rs.1,00,000/ & cheque no. 035726, dated 27.06.98 for Rs.26,665/, were forwarded by the Chief Manager, Corporation Bank, which have been proved by him as Ex.PW20/D, Ex.PW20/E and Ex.PW20/F, respectively.
104. PW20 has further deposed that vide seizure memo, dated 17.07.02, some documents were seized by Sh. B.M. Pandit, Inspector of Police, CBI, which has been proved by him as Ex.PW20/G. The said seizure memo bears the signatures of Sh. B.M Pandit at pt.A, which have been duly identified by him as he had worked with him.
105. PW20 has further deposed that vide the said seizure memo, the documents seized were original copy of RR no. 64545, dated 13.12.97, original copy of general forwarding note, which were submitted by M/s Supreme Trading Corporation and carbon copy of summary of RRs of dispatch bearing no. 8915, dated 23.12.97.
106. PW20 has further deposed that vide receipt memo, dated CBI vs. Rajesh Kohli & Ors. 39 of 115 pages 40 CBI case . No.19/11 17.07.2002, Inspector B.M. Pandit had seized certified copy of wagon summary dated 26.12.1997 of Wagon no. SE 80878, which has been proved as Ex.PW20/H. He has also identified the signatures of Inspector B.M. Pandit on the said seizure memo, at pt. D.
107. PW20 has further deposed that during the course of investigation, he had also obtained the specimen signatures of accused Anil Maheshwari, in the presence of witness, Sh. Prabhat Kumar Aggarwal, who also signed the same at pt. B, which have been duly identified by the witness. The said specimen signatures have been proved by him as Ex.PW20/I.
108. PW20 has further deposed that he also obtained the specimen writings and signatures of accused Arvind Sharma, in the presence of an independent witness, Sh. Prabhat Kumar Aggarwal, which runs into five pages. That the said independent witness and accused Arvind Sharma signed all those papers, at pts. A & B, respectively, in his presence. He has further deposed that further investigation of this case was handed over to the IO, Sh. R.P. Kaushal, the then Additional Superintendent of CBI vs. Rajesh Kohli & Ors. 40 of 115 pages 41 CBI case . No.19/11 Police, CBI.
109. PW21, Sh. S.K. Gupta has deposed that on 22.11.02, he was posted as Special Assistant in Syndicate Bank in Khan Market Branch, New Delhi. He has further deposed that specimen signatures of accused V.K. Bhutani were obtained by the IO of this case, Sh. R.P. Kaushal, in his presence, which have been collectively proved as Ex.PW22/A(running into 11 pages), which bears his signatures at pt. A and that of Sh. R.P. Kaushal at pt. B, which have been duly identified by the witness. He has further deposed that the said signatures have been voluntarily given by accused V.K. Bhutani.
110. PW22, 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 PW20, Sh. Jyoti Kumar, the then Deputy Superintendent of Police, CBI, for further investigation.
111. PW22 has further deposed that during the course of CBI vs. Rajesh Kohli & Ors. 41 of 115 pages 42 CBI case . No.19/11 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.
112. PW22 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.
113. PW22 has further deposed that he had collected specimen and admitted handwritings of the accused persons, which were sent to CFSL for comparison and for obtaining expert opinion. That the said expert opinion was received in the office of CBI, which had been filed alongwith the documents in the court. He has further deposed that while sending the above mentioned documents to CFSL, he had sent questioned documents, marked as Q1 to Q139, specimen writings / signatures, marked as S1 to S92 and admitted writings/signatures, marked as A1 to A75 through SP, CBI, EOW, vide letter, dated 09.12.2002 in a sealed cover, under the signatures of the then S. P. Shri Alok Mittal of CBI, EOW, Delhi. The copy of the said expert opinion has been proved as Ex. PW 22/A. The opinion of CBI vs. Rajesh Kohli & Ors. 42 of 115 pages 43 CBI case . No.19/11 the expert goes unchallenged on record. It proves the version of the prosecution.
114. 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 uncorrobrated testimony of a handwriting expert may be accepted."
115. PW22 has further deposed that vide letter, dated 27.06.2002 of Shri S. Roy, he had received the enclosures as mentioned in the letter, dated 27.06.2002, copy of same has been proved as Ex. PW 22/B.
116. PW22 has further deposed that vide seizure memo, dated 17.9.2002, he had seized documents from Shri Deepak Chaudhary, the then AAO, NIC, DO10, New Delhi. The copy of said seizure memo has been proved as Ex. PW22/C, which bears his signatures at point A and that of Shri Deepak Chaudhary at point B, which have been duly identified by the witness.
CBI vs. Rajesh Kohli & Ors. 43 of 115 pages 44 CBI case . No.19/11
117. PW22 has further deposed that he had also received the details regarding six policies, vide letter, dated 19.9.2002, copy of same has been proved as Ex. PW22/D.
118. PW22 has further deposed that he had also collected documents, vide letter, dated 03.12.2002 from Shri S. Roy, Asstt. Manager, copy of same has been proved as Ex.PW22/E .
119. PW22 has further deposed that while sending the above mentioned documents to CFSL, he had sent the above said questioned documents marked as Q1 to Q139, Specimen writings S1 to S92 and admitted writing/signatures A1 to A75 through the then SP, CBI, Sh. Alok Mittal, vide letter dated, 09.12.2002, in a sealed cover, under the signatures of Sh. Alok Mittal. That the copy of said letter has been proved as Ex.PW22/F on which, he has identified the signatures of the aforesaid SP, at pt.A.
120. PW22 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 25.06.98, in respect of clearance of cheque no. CBI vs. Rajesh Kohli & Ors. 44 of 115 pages 45 CBI case . No.19/11 103381 for Rs.4,56,400/, which has been proved as Ex.PW22/G.
121. PW22 has further deposed that he had also procured CD PUB statement w.e.f 01.01.97 to 31.12.98, in respect of account no. 1523 of National Insurance Company from Indian Overseas Bank, Parliament Street, New Delhi, which has been proved as Ex.PW22/H.
122. PW22 has further deposed that he had also collected details in respect of six policies, regarding the commission paid to the agent, Sh. B.N. Tiwari along with the details of claim no., policy no., name of insured, surveyor and survey fee, recovery agent and recovery amount, date of credit and recovery fee paid, cheque no. and date from National Insurance Company, DOX, New Delhi, which have already been proved as Ex.PW14/A, colly.
123. PW22 has further deposed that Expert Opinion, already exhibited as Ex.PW22/A was received through a forwarding letter, dated, 03.04.03, copy of the same has been proved as Ex.PW22/I. CBI vs. Rajesh Kohli & Ors. 45 of 115 pages 46 CBI case . No.19/11
124. PW22 has further deposed that during the course of investigation, he had also obtained specimen signatures of accused Anil Maheshwari, son of Sh. Shiv Prasad Maheshwari, in presence of an independent witness, Sh. P.K. Aggarwal, the then AO, NIC, marked as S9 to S13, which are already Marked Ex.PW20/I, colly. He has further deposed that specimen signatures/writing of accused Arvind Kumar Sharma, son of Late S.N. Sharma, were obtained in presence of an independent witness, Sh. P. Aggarwal, the then AO, NIC, marked as S14 to S19, which have been proved as Ex.PW20/J.
125. PW22 has further deposed that he had also collected details of the policies from NIC, Delhi, DOX, showing name of insured, policy numbers, sum assured, claim number and total premium paid, copy of the same has already been proved as Ex.PW22/D.
126. PW22 has further deposed that he had also obtained sanction for prosecution, copy of which has already been proved as Ex. PW22/J.
127. PW22 has further deposed that during the course of CBI vs. Rajesh Kohli & Ors. 46 of 115 pages 47 CBI case . No.19/11 investigation, a letter dated 12.02.2002 of Chief Manager, Corporation Bank, Chandni Chowk Branch, Delhi, was also collected, containing statement of account no. 1574 of M/s Supreme Trading Corporation for the period 19971998, 19981999 etc. The said letter has been proved as Ex.PW22/K.
128. PW22 has further deposed that through seizure memo, already Ex.PW20/G, original copy of RR no. 645451, dt. 13.12.97, which has been proved as Ex.PW22/L (D15, 16, 17, 18), original copy of general forwarding letter, which has been proved as Ex.PW22/M and carbon copy of summary of RRs of dispatch bearing no. 8915, dt. 23.12.97, which has already been proved as Ex.PW10/A, were also obtained during investigation.
129. PW22 has further deposed that a certified copy of Wagon Summary, dt. 26.12.97 (D20) of Wagon no. SE 80878 Delhi to Madras, which has been proved as Ex.PW22/N, was also obtained through seizure memo, already exhibited as Ex.PW20/H (D19).
130. PW22 has further deposed that he had also obtained a CBI vs. Rajesh Kohli & Ors. 47 of 115 pages 48 CBI case . No.19/11 carbon copy of RR no. 645451, dt. 13.12.97 from Delhi to Eranakulam, which has been proved as Ex.PW22/O and non delivery certificate, dt. 27.05.78, which has already been proved as Ex.PW15/DA.
131. PW22 has further deposed that vide letter, dt. 05.09.02, already exhibited as Ex.PW1/B, National Insurance Company had furnished a verification report, which was sent to Sh. A.K. Seth, Vigilance Officer, DRO, New Delhi, regarding non availability/genuineness of the address of M/s Venketeshawra Handloom and M/s Rajan Enterprises.
132. PW22 has further deposed that he had also collected claim disbursement voucher of M/s Supreme Trading Corporation for Rs.4,56,400/, which has been proved as Ex.PW22/P. That the claim disbursement voucher for Rs. 2763/, which was paid to M/s Puja International and a receipt, which has been proved as Ex.PW22/Q, were also collected by him, during the course of investigation.
133. PW22 has further deposed that during investigation, a registered letter was sent to the Proprietor/Partner of M/s Rajan Enterprises, 68/4, Main Bazar, opposite Post Office, CBI vs. Rajesh Kohli & Ors. 48 of 115 pages 49 CBI case . No.19/11 Ernakaulam, Kerala, in an envelope, which was received back with the remark of postman on the envelope that 'no such firm existed in his beet'. That the said envelope was found containing a letter, which was addressed to the above said proprietor. The said letter has been proved as Ex.PW22/R, which was sent by Inspector Jyoti Kumar, the then DSP, bearing his signatures at pt.A, which have been duly identified by the witness as he had seen him writing and signing in the official capacity.
134. PW22 has further deposed that he had also collected cheques of Corporation Bank and City Bank, containing writing and signatures of accused, Anil Maheshwari. That the cheques, which were collected from City Bank have been proved as Ex.PW22/S, Ex.PW22/T, Ex.PW22/U, Ex.PW22/V, Ex.PW22/W, Ex.PW22/X and Ex.PW22/Y.
135. PW22 has further deposed that after completing the investigation, he had filed the charge sheet and supplementary charge sheet.
136. Now, I come to the version put forward by the defence witnesses.
CBI vs. Rajesh Kohli & Ors. 49 of 115 pages 50 CBI case . No.19/11
137. DW1, Sh. B.K. Sachdeva was posted as Regional Manager in NIC. He has proved the Claim Procedural Manual of NIC as Ex.DW1/A, consisting of 119 pages. He has deposed that the said rule book was mandatory for processing and settling the claims like of which was in question.
138. In cross examination, DW1 has admitted that the competent authority, who was empowered to approve the claim, had to see the recommendations of the officers and other staff members and in case of variations, had to use his wisdom, before approving the claim and that if it was found to be noncomplied with the requirements, he could have deputed a investigator for further investigation.
139. DW1 has agreed to the suggestion that it was the primary duty of the authority, passing the claim to ensure that no bogus or false claim was passed and that to achieve this end, he was required to scrutinize CBI vs. Rajesh Kohli & Ors. 50 of 115 pages 51 CBI case . No.19/11 all the documents and reports, submitted by the subordinates, carefully and meticulously.
140. DW1 has further deposed that at the relevant time, he and accused Rajesh Kumar Kohli were the officers at the same level at Regional Office. That he was posted in Vigilance Department whereas accused Rajesh Kumar Kohli was posted in the Marine Department.
141. DW1 has admitted that 20 years of job profile experience of accused Rajesh Kumar Kohli could have enabled him to distinguish between bogus and genuine claim, while processing the claims in question and that the said experience was sufficient to equip him to find out whether his subordinates were discharging the duties diligently, while processing the claims in question.
142. DW1 has further admitted that it was duty of the Divisional Manager to ensure that his subordinates function as per rules and honestly, while processing CBI vs. Rajesh Kohli & Ors. 51 of 115 pages 52 CBI case . No.19/11 the claims.
143. DW1 has further admitted that Ex.PW3/D1, in this case, shows that below the signatures of Mrs. Hem Lata Ahuja, word 'stenographer' has been written. He has further admitted that when the above said document was typed out and signed by Mrs. Hem Lata Ahuja, he was not present and that he did not discuss with her whether she had signed this document as recommendatory authority or not.
144. DW1 has further admitted that an insured could not be assigned the job of a surveyor, tracer or recovery agent, in a given claim.
145. He has further admitted that if FIR had been lodged then it was the duty of the claim processing and passing authority to see the FIR and not the investigation report. That he had no personal knowledge of this case.
CBI vs. Rajesh Kohli & Ors. 52 of 115 pages 53 CBI case . No.19/11
146. DW1 has further admitted that the recovery agent was entitled to deposit the amount with NIC only in the case of actual recovery and not in the case of no recovery. He has further admitted that in no case, the recovery agent could deposit the money from his own account, without recovering it actually from the concerned party.
147. DW1 has further deposed that there were other circulars also, governing the marine insurance, which were applicable at that time. He, however, did not produce them for the reasons best known to him.
148. In any case, his testimony does not help the defence, in any manner, whatsoever. On the contrary, it supports and corroborates the version of the prosecution.
149. Accused Vinod Kumar Bhutani was examined as DW2.
CBI vs. Rajesh Kohli & Ors. 53 of 115 pages 54 CBI case . No.19/11
150. DW2 has admitted that at para no. 24(iv) of claim note, which is Ex.PW3/D1, there was mention of copy of Railway Receipt, however, in the claim note/claim file of the present case, no railway receipt was attached. One, therefore, wonders as to how such a claim could have been recommended and passed by the accused public servants in this case?
151. DW2 has further admitted that in routine course of his duty, he used to receive railway receipt regularly. He, however, could not say anything about the missing of railway receipt in the record of this case.
152. DW2 has also identified his signatures at pt. C, on the registered letter, which has been exhibited as Ex.PW2/DX5, vide which he had requisitioned the documents, tick marked in the aforesaid letter. He has further identified his signatures at pt. A on letter, which has been exhibited as Ex.PW2/DX6, vide which, he had called for copy of railway receipt. It is pertinent to mention that the claim file clearly shows CBI vs. Rajesh Kohli & Ors. 54 of 115 pages 55 CBI case . No.19/11 that subsequently requisitioned documents were deliberately ignored to accelerate the passing of the fraudulent claim, in this case.
153. DW2 has further identified the handwriting of co accused Rajesh Kumar Kohli, at encircled portion 'X' on the letter, dated 11.03.1998, which has been exhibited as Ex.PW2/DX7. He, however, did not state as to what documents, he had received along with the said letter.
154. DW2 has further admitted that all the documents, received in DOX, were marked with rubber stamp of 'receipt with date'. A bare perusal of the documents available in the claim file, Ex.PW1/C, clearly show blatant and flagrant violation of all this in the present case.
155. DW2 has also identified the signatures of co accused Rajesh Kumar Kohli on the letter, which has been exhibited as DW2/DX8. He admitted that the claim CBI vs. Rajesh Kohli & Ors. 55 of 115 pages 56 CBI case . No.19/11 file, Ex.PW1/C, did not contain 'non delivery certificate'. He has admitted that para 24 started with words 'documents received and verified'. He has identified his signatures at pt. A on the carbon copy of letter, Ex.PW2/DX9.
156. The material appearing on record clearly suggest that he had recommended the claims despite deficiencies/manipulations/fabrications in the required documents, in pursuance of the criminal conspiracy and to help the other accused persons in order to commit the offences alleged, in this case.
157. Accused Rajesh Kumar Kohli has examined himself as DW3. He has deposed that he had resigned from the company and was discharged from the service on 30.09.1998, vide discharge letter, Ex.DW3/1.
158. DW3 has further deposed that PW B.N. Tiwari, was recruited in the company as an agent somewhere in the year 1995 on the recommendations of his Jija, CBI vs. Rajesh Kohli & Ors. 56 of 115 pages 57 CBI case . No.19/11 who was also an employee of Stationery Department of NIC. That the said PW, B.N. Tiwari procured business for them and in return, was paid commission for the premium procured by him. By this admission of the defence, the deposition of PW B.N. Tiwari as against the accused persons, therefore, has been strengthened as natural and truthful.
159. DW3 has proved the proposal form of the NIC, which has been exhibited as Ex.DW3/2.
160. DW3 has admitted that in the present case, the tracing assignments had been conducted by M/s Pooja International.
161. In his cross examination, he admitted that documents Ex.DW3/P1 to Ex.DW3/P14 bear his signatures at pt. A, which he identified. He has also identified his signatures and endorsement at encircled portion 'Q39' on Ex.DW3/P15. He has further admitted that vide the said endorsement, he had appointed M/s CBI vs. Rajesh Kohli & Ors. 57 of 115 pages 58 CBI case . No.19/11 Pooja International as 'tracer' in the present case and pursuant to that, a letter was also issued to M/s Pooja International, which was signed by him. He has identified his signatures at pt. A on the carbon copy of the said letter, which has been exhibited as Ex.PW2/DX8. He has admitted that on the back of the the said letter, no documents were tick marked, in token of having been sent along with the letter to M/s Pooja International. He has also admitted that the name of typist did not appear on the aforesaid letter.
162. DW3 has admitted that in Marine Claim Department, there were atleast two employees, who amongst others, were also assigned the job of typing and that one of them was Hem Lata Ahuja. This indicates that PW Hem Lata Ahuja was merely a stenographer, in this case. This lends support to the deposition of PW13 Hem Lata Ahuja that she typed the claim note at the dictates of accused Rajesh Kumar Kohli only.
163. DW3 has further admitted that his signatures CBI vs. Rajesh Kohli & Ors. 58 of 115 pages 59 CBI case . No.19/11 appeared at two places at pts. B on Ex.PW3/D1.
164. DW3 has admitted that document, Ex.DW3/P16 contained the stamp of receipt section whereas documents, which are Ex.DW3/P17 & Ex.DW3/P18 did not contain the said stamp. He has further admitted that in letters, Ex.DW3/P16 & Ex.DW3/P17, incomplete address of claimant i.e. M/s Supreme Trading Corporation, had been mentioned. It is not understandable as to how then, these documents being deficient/suspicious were processed and accepted by him.
165. DW3 has also admitted that in the claim pertaining to the present case, he had directed for appointing M/s Pooja International as 'tracer' but he denied the suggestion that without waiting for the tracing report, on the same day, he had appointed the said firm as recovery agent, vide letter, Ex.PW2/DX8. The circumstance, available on record, however, suggests otherwise.
CBI vs. Rajesh Kohli & Ors. 59 of 115 pages 60 CBI case . No.19/11
166. DW3 has deposed that he had the necessary competence to waive the condition of presentation of original documents, wherever those were not in original, and it was accordingly done. However, there does not appear any note to this effect anywhere on record, much less the reasons for the same having been recorded by him.
167. As per manual of Ex.DW1/A, any dispensation of document needs to be reasoned out. No reason, admittedly, was recorded by DW3. DW3 in no circumstance, was entitled to exercise discretion, if any, in an arbitrary manner, to adopt corrupt practice to procure gain to the claimant and to harm his employer and cause illegal loss to the public exchequer.
168. DW3 has further deposed that AD card was not necessary as receipted claim copy from railways was filed by the claimant. It, however, turned out that the CBI vs. Rajesh Kohli & Ors. 60 of 115 pages 61 CBI case . No.19/11 said document was fake.
169. DW3 has denied the suggestion that in order to justify falsely the passing of the claim, instead of ascertaining the true facts at the destination point i.e. Southern Railway Ernakulum, regarding delivery of goods, he had twisted the facts and stated in the document, Ex.PW3/D1 that consignors had made several visits to Railway Station at Delhi to know about the whereabouts of the consignee but the railway authority could not locate the consignee. The record of the claim file, Ex.PW1/C, however, clearly demonstrates that DW3 has imported the aforesaid facts on his own, without any basis.
170. DW3 has also denied the suggestion that Ex.PW15/DA i.e non delivery certificate was apparently a bogus document and the same could have required enquiry and investigation at the destination i.e. Ernakulam Railway Station as it was neither on the proforma nor the seal or signatures appearing at the bottom, CBI vs. Rajesh Kohli & Ors. 61 of 115 pages 62 CBI case . No.19/11 appeared genuine. The deposition of DW3, in this regard, is clearly contrary to the position actually obtaining on record.
171. DW3 was also asked that despite the original invoice and original railway receipt not coming on record, as mentioned in claim note, Ex.PW3/D1, which was called from the party, vide Ex.PW20/Z5, why he proceeded to pass the claim, without making enquiry about the correctness of invoice and RR in question and other documents, submitted for passing the claim but no acceptable explanation was rendered by him. The material on record suggests that the claim in this case was dishonestly passed, without calling for original RR, consignor's copy or consignee's copy in original, especially, when it was allegedly a case of total loss of the entire consignment.
172. DW3 has admitted that in claim note, Ex.PW3/D1, Smt. Hem Lata Ahuja, specifically mentioned her designation as 'stenographer'. It so appears because CBI vs. Rajesh Kohli & Ors. 62 of 115 pages 63 CBI case . No.19/11 she had typed the said note in her capacity as stenographer only and not as a processing clerk. It is apparent that he did not object her description as a 'stenographer' on the note because the said claim note might have been dictated by him.
173. DW3 has further admitted that PW B.N. Tiwari was appointed by him as agent of the company. He has deposed that out of the six claims under trial, five were booked under his agency. In view of this admission it has to be taken that what PW B.N. Tiwari has deposed against the accused persons is to be taken as true and correct.
174. DW3 has admitted that letter dated 30.06.98 at page 39 of the file, Ex.PW1/C, did not contain receipt stamp of office.
175. It is, therefore, clear that the deposition of all the three defence witnesses do not bring anything on record to show that the prosecution story is false or that the CBI vs. Rajesh Kohli & Ors. 63 of 115 pages 64 CBI case . No.19/11 accused persons are innocent. On the contrary it corroborates and justify the prosecution version only.
176. The procedural manual has been duly proved as Ex.DW1/A on record by the defence and has not been disputed by the prosecution. It 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 CBI vs. Rajesh Kohli & Ors. 64 of 115 pages 65 CBI case . No.19/11 the carriers. Failure to do so would prejudice the insured's right of recovery under the policy.
(2.2) Where the written application for open/survey delivery is refused by the carriers and a survey is disallowed by them, the claimant shall be asked to take delivery under a written protest after survey by a surveyor deputed by the dealing office.
(2.3) In case of nondelivery/short delivery, the claimant shall be asked to obtain and send to the dealing office either a nondelivery/short delivery certificate from the Port Authorities or the original Railway Receipt (RR), Lorry Way Bill (LWB) or Air Consignment Note duly endorsed by the carriers, confirming nondelivery/short delivery or a separate nondelivery/short delivery 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. CBI vs. Rajesh Kohli & Ors. 65 of 115 pages 66 CBI case . No.19/11 3.7 The dealing office shall also arrange for surveys 'without prejudice' on losses reported under policies issued by other policy issuing offices which are not under its jurisdiction. Thereafter, the dealing office shall process the entire claim upto final settlement keeping the policy issuing office informed of all developments.
3.10 Normally, the survey report should be finalized within three weeks. The surveyor shall be instructed to keep the dealing office informed of the progress of his work in case of delay. He shall alert dealing office immediately if it is known that a third party is responsible for the loss so that arrangements for a joint survey with the third party's representative can be made.
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.
CBI vs. Rajesh Kohli & Ors. 66 of 115 pages 67 CBI case . No.19/11 iii. Copy of Bill of Lading (in case of sea voyage).
iv. Copy of Bill of Entry.
v. In case of General Average, Counter Guarantee or
original Cash Deposit Receipt with Letter of Transfer. vi. Letter of Subrogation duly stamped (only where recovery from carriers is possible). vii. Special Power of Attorney( wherever applicable). viii. Lost Over Board Certificate where loss has taken place during loading.
ix. In case of shortlanding/nondelivery of complete assignment:
Original contract of affreightment duly endorsed in our favour viz. Railway Receipt, Transport Receipt, full set of Bill of Lading, Air Consignment Note and Postal Receipt etc as 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).
CBI vs. Rajesh Kohli & Ors. 67 of 115 pages
68
CBI case . No.19/11
xii. Copies of correspondence exchanged with the
carriers along with registered AD cards (wherever recovery from the carriers is possible). xiii. Banker's Certificate confirming non receipt of export proceeds in India in an approved manner (in case of claims under export policies settled in India).
6. CLAIM SETTLEMENT ON DESPATCHES BY INLAND TRANSIT (RAILWAYS OR ROAD CARRIERS OR OTHER MODES OF TRANSIT FOR DESPATCHES WITHIN INDIA).
6.1 Short and Non Delivery 6.1.1 When a claim for short delivery or non delivery of a consignment is reported, consignees should be advised to obtain signed certificate of the delivery authorities on the reverse of the Receipts certifying that the packages are not available for delivery or obtain a separate shortlanding or non delivery 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 CBI vs. Rajesh Kohli & Ors. 68 of 115 pages 69 CBI case . No.19/11 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."
177. The aforesaid requirements/essential provisions laid down in the procedural manual were blatantly flouted by the accused Rajesh Kumar Kohli and accused V.K. Bhutani, without any cogent reason.
178. It is well settled that criminal conspiracy is hatched in secrecy and no direct evidence may be possible.
Circumstantial evidence can always prove it.
179. 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 CBI vs. Rajesh Kohli & Ors. 69 of 115 pages 70 CBI case . No.19/11 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."
180. In the case law reported as Chaman Lal Vs. State of Punjab, AIR 2009 SC 2972, Hon'ble Supreme Court has held that:
"Essence of conspiracy is unalwful combination and the complicity of the accused has to be decided after considering all the circumstances proved, before, during and after occurence. Agreement between the conspirators may also be proved by necessary implication."
181. 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."
182. In the case law reported as Tribhuvan Nath Vs. State of Maharashtra, AIR 1973 SC P 450, Hon'ble Supreme Court has held that :
CBI vs. Rajesh Kohli & Ors. 70 of 115 pages 71 CBI case . No.19/11 "Evidence of one accused can be used against the other accused to prove the existence of conspiracy under section 10 of the Evidence Act."
183. In the case law reported as AIR 1974 SC P 898, Hon'ble Supreme Court has held that :
"Even admission of one accused under section 10 of the Evidence Act, can be used against other accused to prove criminal conspiracy."
184. 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."
185. 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."
186. It was further held that :
"False and inconsistent defences taken by the CBI vs. Rajesh Kohli & Ors. 71 of 115 pages 72 CBI case . No.19/11 accused can be taken as additional circumstance against him strengthening the chain of circumstances."
187. 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".
188. 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".
189. 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 CBI vs. Rajesh Kohli & Ors. 72 of 115 pages 73 CBI case . No.19/11 without even being informed of the identity of his coconspirators. An agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of what lies in their minds".
190. 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 co conspirators, just as they are for the overt acts and crimes committed by their confrers".
191. From the material placed and proved on record, following strong and cogent evidence and circumstances appear on record to show that the accused persons are guilty of the offences alleged against them.
(i) Accused Anil Maheshwari is the claimant and Proprietor of M/s Supreme Trading Corporation (a non existent enterprise).
CBI vs. Rajesh Kohli & Ors. 73 of 115 pages 74 CBI case . No.19/11
(ii) Accused Arvind Kumar Sharma, admittedly, was appointed as Tracer by accused Rajesh Kumar Kohli. He was the owner of of M/s Pooja International.
(iii) Accused Kunwar Vijay Juneja of M/s Pooja International submitted the bogus tracing report on 24.2.1998 signed by him as Manager.
(iv) TA/DA bill vide invoice no. 630, dated 24.2.1998 of Pooja International signed by Kunwar Vijay Juneja was submitted in the NIC Ltd.
(v)The aforesaid bill was recommended by accused Vinod Kumar Bhutani and was passed by accused Rajesh Kumar Kohli.
(vi) The said bill for an amount of Rs.2,763/, which has been proved as Ex.PW22/O and signed by accused Kunwar Vijay Juneja as Chief Executive, was paid to M/s Pooja International which was credited in the Current Account No. CA 279 on 30.6.1998 of Pooja International of accused Arvind Kumar Sharma in OBC, Pashchim Vihar, New Delhi, which is proved vide statement of account, Ex. PW 16/A3.
(vii) Rajan Enterprises (the consignee) was found non existent at the given address, in Ernakulam.
(viii) The address of the claimant company Supreme Trading Corporation, given in Railway Receipt, CBI vs. Rajesh Kohli & Ors. 74 of 115 pages 75 CBI case . No.19/11 Ex.PW22/A is 1784, Ist Floor, Chawri Bazar, whereas in Corporation Bank, it is given as 1716 Gali Piou wali Dariba, Delhi6 vide Ex. PW 22/K, where claim amount was deposited /encashed and was soon withdrawn. This speaks of fraudulent mind of the accused/claimant, Anil Maheshwari of the Supreme Trading Corporation, who has given different address in the insurance policy and other documents submitted to NIC. It is none of the case of the defence of accused Anil Maheshwari that Supreme Trading Corporation was having three addresses. Further, the burden to show that Supreme Trading Corporation existed at the given address, under section 106 of Evidence Act, was on Supreme Trading Corporation as the accused was having special and specific knowledge of all valid documents, pertinent to Supreme Trading Corporation. But the defence has failed to do so.
(ix) Letter, Ex.PW1/E, dated 31.5.1999 shows non existence ( door No. given was false, there were number of post offices, vague address 'Opp Post Office' only was given without specifying which Post Office) of M/s Rajan Enterprises (the consignee) as per enquiries conducted and proved by PW15.
(x) As per Ex.PW1/D, No - 'nondelivery certificate' was issued from Ernakulam Railway Station. The 'non delivery certificate' furnished in the claim file, Ex.PW1/C was, therefore, false, forged and fabricated. CBI vs. Rajesh Kohli & Ors. 75 of 115 pages 76 CBI case . No.19/11
(xi) Accused Arvind Sharma was connected to Pooja International & opened its account with Oriental Bank of Commerce. The account opening form has been proved as Ex. PW 16/A2.
(xii) Ex. PW 22/A, the expert's opinion on admitted and questioned document, regarding handwriting of the accused persons, goes unchallenged.
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."
(xiii) Ex.DW3/P18 letter dated 05.01.1998, is only a photocopy of Rajan Enterprises (nonexistent) informing M/s Supreme Trading Corporation about non reaching of consignment vide RR on 13.12.1997.
On the said document there is no date of receipt/stamp of receipt of NIC /DO X. It is therefore, shocking as to how it reached NIC/DOX. It is admitted by the defence, in their evidence, that documents received in NIC, DOX, were duly stamped, in token of receipt. CBI vs. Rajesh Kohli & Ors. 76 of 115 pages 77 CBI case . No.19/11
(xiv) Letter dated 27.6.2002, Ex. PW 22/B, from NIC to R. P. Kaushal, IO of this case, disclosed that regarding the claim in question i.e. 'Super Trading Corporation' , the sum insured was Rs.4,58,000/ and that in the absence of Damage/shortage Certificate and Copy of railway receipt, the claim was settled. It was gross violation of the prescribed norms.
(xv) The claim file, Ex.PW1/C, contains the false and fabricated documents, which admittedly were produced by the insured, accused Anil Maheshwari of M/s Supreme Trading Corporation and the Tracer, M/s Pooja International. These documents were admittedly processed by the accused Rajesh Kumar Kohli and accused Vinod Kumar Bhutani, when the claim was passed in this case by them. The norms listed out in the Manual, Ex.DW1/A were violently flouted, without any cogent reason.
(xvi) Ex. PW 3/D1 is the note to Divisional Manager vide which the claim was recommended to be settled by the accused V. K. Bhutani. It was approved by accused Rajesh Kumar Kohli. A bare perusal of this note shows how the norms were deliberately flouted to benefit the insured.
(xvii) Vide letter, Ex.DW2/DX5, which was available, admittedly, in the claim file, the insured, M/s Supreme Trading Corporation, was asked/directed to submit the following original documents mentioned therein i.e. CBI vs. Rajesh Kohli & Ors. 77 of 115 pages 78 CBI case . No.19/11
1. Original RR duly enclosed by the Railway Authority
2. Disposal of RR and get the original non delivery certificate from Railway Authority.
3. Letter of Authority from your consignee in your favour duly attested by Railway Authority.
4. Copy of notice of claim served on the carrier through Regd. AD post claim monetary compensation for loss suffered.
5. AD Card of the above notice.
6. Original copy of invoice
7. Copy of Railway Receipt
8. Your claim bill in duplicate
9. Packing List (Item wise)
10. Enclosed claim form duly completed. However, it is evidently clear that all the aforesaid requisitioned documents do not find mention in para 24 of the note, Ex. DW 3/D1.
The following documents find mention in the said note, Ex.DW 3/D1, which were shown as received and verified:
1. Copy of Invoice
2. Claim form
3. Claim Bill on us
4. Copy of RR
5. Copy of letter addressed to transporter duly received by them.
6. Non delivery certificate.
7. Survey report CBI vs. Rajesh Kohli & Ors. 78 of 115 pages 79 CBI case . No.19/11
8. Original Policy of Insurance.
There is nothing on record to show that any of the documents was dispensed with either by the accused V. K. Bhutani or by the accused R. K. Kohli. There is no reason mentioned anywhere in the claim file that any of the document was dispensed with in this case. Thus, despite specific requisition of the necessary documents, and without compliance by the insured claimant i.e. Supreme Trading Corporation of the letter dated 12.3.1998, the claim was very swiftly and hurriedly passed, in this case.
(xviii) Further, the claim form available in this file, filed by the Supreme Trading Corporation, bears the date of 10.3.1998 whereas the letter dated 12.3.1998, which is Ex. DW 2/DX5, has enclosed the claim form to be completed by the insured. How it is then that the claim form was filed on 10.3.1998 i.e. prior to 12.3.1998, whereas the claim form was enclosed vide letter dated 12.3.1998 by NIC?
(xix)The claim file contains the invoice, raised by Pooja International, which bears the signatures of accused K.V. Juneja, admittedly, raising the bill of Rs.2763. It is not disputed that this bill was raised on behalf of M/s Pooja International. The amount of Rs.2763/ was admittedly paid to M/s Pooja International, which was duly deposited in their account owned and operated by the accused Arvind Sharma. The same has been established CBI vs. Rajesh Kohli & Ors. 79 of 115 pages 80 CBI case . No.19/11 on record. M/s Pooja International, in this case, has filed 'Tracer's' fake and forged Report.
(xx) According to the claim note, the survey in this case was arranged on 6.2.1998, whereas the document, Ex.DW 2/P15, indicates that M/s Pooja International was deputed as Tracer on 4.2.1998 i.e prior to the survey arranged which does not appeal to logic. In any case, the tracing report, on the face of it, does not inspire any confidence in as much as it appears to have been manipulated. The Tracer knew very well that the consignment was sent from Delhi to Ernakulam Station and his assignment was to trace the goods from Delhi to Ernakulam or the place where it got damaged/misplaced. The Tracer, however, did not go up to Ernakulam Station and arbitrarily terminated his journey at Erode Station only, without tracing the goods. Further, it is mentioned in the Survey Report, which is Ex. PW 1/DC, that their representative checked the record of M/s Supreme Trading Corporation and collected the photocopies of various documents like invoice/bill, consignee letter, claim lodged on Railways. However, the same were not enclosed, admittedly, with the said Tracer Report. It is not indicated in the report that anything was enclosed with the report. Apart from this, the same was not available in the file also.
(xxi)Further, perusal of 'tracer's' report shows that the report is suspicious, on the face of it, as it recites that representative of M/s Pooja International met one Mr. CBI vs. Rajesh Kohli & Ors. 80 of 115 pages 81 CBI case . No.19/11 Kesar, representative of M/s Supreme Trading Corporation on behalf of the accused Anil Maheshwari, however, nowhere it is clarified as to who Mr. Kesar was or whether Mr. Kesar had anything to do with M/s Supreme Trading Corporation. The tracer report does not mention as to when the representative reached Nagpur Station. The names, indicated in the report, are not complete inasmuch as it mentions the names like - Ramachandran, Mr. Ansari, etc. The report, regarding Erode Station, also does not inspire confidence inasmuch as their representative checked some other six cases containing the names with which the consignment in question, allegedly sent by the consignor, had nothing to do. In any case, the tracer report nowhere provided at what point the goods were lost. No authentic documentary evidence was collected from the Railway Authority. It is, therefore, clear that this forged report was filed, considered, accepted and claim was released in favour of accused Anil Maheshwari as a part of criminal conspiracy amongst the accused persons. (xxii) The letter, Ex.DW2/DX8, issued by the accused Rajesh Kumar Kohli is the letter, vide which M/s Pooja International was appointed as recovery agent also. The claim in this case was passed admittedly on 18.6.1998. It is not understood as to why then recovery agent was appointed prior to that date. Moreover, M/s Pooja International filed false, forged and vague Tracing Report.
CBI vs. Rajesh Kohli & Ors. 81 of 115 pages 82 CBI case . No.19/11 It is not understood how the same M/s Pooja International was appointed as tracer as well as the recovery agent. Admittedly, there is nothing available on record to show that any attempt was made or any recovery was made from the Carrier i.e. the Railways, in this case. It appears that criminal intent of the accused persons was only to ensure passing of the bogus claim and cheat NIC.
(xxiii) Accused Anil Maheshwari was in the specific knowledge regarding existence of Rajan Enterprises, the consignee, in this case and about his own Supreme Trading Corporation. The burden of proof under section 106 of the Evidence Act lay on him. In any case, later on, it shifted to him to show that both these establishments were existing. The material established on record by the prosecution clearly indicates that none of them was found existing at the given address. Accused Anil Maheshwari despite being in the power and possession of exclusive knowledge and other documentary evidence did not come forward to demonstrate that these establishments existed at the given address. This clearly established that what prosecution has shown is correct i.e. both consignor and consignee did not exist at the given address and the claim was bogus.
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, CBI vs. Rajesh Kohli & Ors. 82 of 115 pages 83 CBI case . No.19/11 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."
(xxiv) It is well settled that the witness may tell lie but the documents do not. The address of M/s Supreme Trading Corporation as is reflected in the copy of RR, which is Ex. PW22/A, is 1784, Ist Floor, Chawri Bazar. In the Corporation Bank, where accused Anil Maheshwari deposited the amount of claim, contains the address of Supreme Trading Corporation as 1716, Gali Piau wali, Dariba, Delhi. Still, further in the Insurance Policy, the address given by the insured, M/s Supreme Trading Corporation, as 3499 Chawri Bazar, Delhi. It is, therefore, clear from all these undisputed and duly proved documents that accused Anil Maheswari had certain and definite intentions to commit cheating and fraud by projecting Supreme Trading Corporation falsely by giving different addresses to different agencies. (xxv) The circumstances and documents proved by the prosecution and which are available on record squarely proves that there was a well knit criminal conspiracy hatched by all the accused persons. Subsequently, they all performed their respective roles to get the offences committed in a systematic, clandestine and organised CBI vs. Rajesh Kohli & Ors. 83 of 115 pages 84 CBI case . No.19/11 manner.
(xxvi) Accused Vinod Kumar Bhutani and Accused Rajesh Kumar Kohli, as discussed above, processed and passed the fraudulent claim based on false, fabricated and non existing facts in pursuance to the criminal conspiracy. They abused their official position to benefit the claimant, accused Anil Maheshwari to the extent of claim amount. Accused Anil Maheshwari presented the bogus claim and pocketed the proceeds of the claim. Accused Arvind Kumar Sharma and K.V. Juneja presented bogus tracers report and illegally charged NIC the fees, thereof. The tracer report presented by them was also false and fabricated as it did not correspond to the truthful position.
192. Regarding the offence of cheating, the Hon'ble Apex Court has observed that "when a person gets an order by playing fraud upon the competent authority, such order cannot be sustained in the eyes of law as fraud unravels everything. Fraud and justice never dwell together. Fraud is an anathema to all equitable principles and any affair tained with fraud cannot be CBI vs. Rajesh Kohli & Ors. 84 of 115 pages 85 CBI case . No.19/11 perpetuated or saved by the application of any equitable doctrine". {Inderjeet Singh Grewal vs. State of Punjab, 2011(4) RCR (criminal) 1(SC)}.
193. 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."
194. In the judgment reported as Kuldip Sharma, 2000 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'.
CBI vs. Rajesh Kohli & Ors. 85 of 115 pages 86 CBI case . No.19/11
195. 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'.
196. 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".
197. It has been asserted by the defence during the course of arugments that there are defects in the investigation. It is true that the present case has not been very effectively 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, CBI vs. Rajesh Kohli & Ors. 86 of 115 pages 87 CBI case . No.19/11 established and available on record is concerned, the defect, if any, in the investigation does not help the defence at all.
198. 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'.
199. In the case law reported as State vs. Santosh Kumar Singh, 2006(4) Crimes 782 (Del), the Hon'ble High Court has held that 'Courts should not be influenced by suspicious roles played by the investigation officer during investigation and criminal justice should not be made a casualty for wrongs committed by investigation officers.'
200. In the case law reported as Dhanraj Singh 2004 Cri LJ 1807 (SC), it has been held by the Hon'ble Supreme Court that CBI vs. Rajesh Kohli & Ors. 87 of 115 pages 88 CBI case . No.19/11 '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'.
201. From the above discussion, analysis of the evidence, documents and the admitted position, it is abundantly clear that all the accused persons were acting in pursuance to well organized, systematic and well knit criminal conspiracy and ultimately cheated the NIC Ltd succesfully.
202. There was fake consignor and fake consignee, in this case.
The tracer also gave false and fabricated report. Both the public servants, who have been arrayed as accused persons, in this case, clearly abused their power and CBI vs. Rajesh Kohli & Ors. 88 of 115 pages 89 CBI case . No.19/11 position to cause pecuniary gain to the claimant accused, Anil Maheshwari without any public interest.
203. All accused persons were acting in unison in pursuance to criminal conspiracy after having hatched the criminal conspiracy. It is, therefore, established on record that they committed offence, punishable under section 120B read with 420, 467, 468, 471 IPC and section 13(2) read with section 13(i)(d) of the Prevention of Corruption Act, 1988.
204. 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}.
205. Accused Rajesh Kumar Kohli and Vinod Kumar Bhutani were the public servants at the relevant time. They dishonestly processed and passed the bogus claim, in this case to cause pecuniary gain to the claimant without any CBI vs. Rajesh Kohli & Ors. 89 of 115 pages 90 CBI case . No.19/11 public interest. They have criminally misconducted themselves within the meaning of section 13(i)(d) of the Prevention of Corruption Act, 1988, as is evident from what has been discussed herein above. They both, therefore, also committed offence, punishable under section 13(2) read with 13(i)(d) of the Prevention of Corruption Act, 1988.
206. Accused Arvind Kumar Sharma and Kunwar Vijay Juneja forged and fabricated documents, relating to tracer's report, TA/DA voucher etc. They, therefore, also committed offence punishable under section 468 IPC.
207. Accused Anil Maheshwari raised false and fabricated claim, using bogus, fabricated and forged documents as genuine, in order to cheat the NIC. He, therefore, also committed offences, punishable under section 420 & 471 IPC.
208. All the accused persons are, accordingly, convicted of the commission of the aforesaid offences. CBI vs. Rajesh Kohli & Ors. 90 of 115 pages 91 CBI case . No.19/11
209. 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. 91 of 115 pages 92 CBI case . No.19/11 IN THE COURT OF SHRI N. K. KAUSHIK SPECIAL JUDGE (P C ACT) CBI, DWARKA COURTS, NEW DELHI CBI Case No. : 19/11 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. Anil Maheshwari, S/o Sh. S. Prasad Maheshwari, R/o 1716, Gali Piauwali, Dariba, Delhi6.
3. Arvind Kumar Sharma, S/o Late Sh. Shambhu Nath Sharma, R/o GH2/122B, Ankur Apartments, Paschim Vihar, New Delhi63.
4. Kunwar Vijay Juneja, S/o Late Vir Bhan, R/o A26, Saraswati Garden, New Delhi15.
CBI vs. Rajesh Kohli & Ors. 92 of 115 pages 93 CBI case . No.19/11
5. Vinod Kumar Bhutani, The then Assistant Administrative Officer, in National Insurance Company Ltd.
DOX, New Delhi.
(Now posted as Administrative Officer, DOI in National Insurance Company Ltd, Delhi.) S/o Sh. Sukh Dayal Bhutani, R/o AGI, Shiva Enclave, Opp. Ordinance Depot, Rohtak Road, Delhi.
...........Convicts 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 CBI vs. Rajesh Kohli & Ors. 93 of 115 pages 94 CBI case . No.19/11 sections 120B read with sections 420, 467, 468 and 471 IPC and section 13 (2) read with section 13 (1)
(d) of the Prevention of Corruption Act, 1988.
Convicts Rajesh Kumar Kohli and Vinod Kumar Bhutani have 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 Anil Maheshwari has been convicted, in addition, for the offences punishable under sections 420 and 471 IPC. Convicts Arvind Kumar Sharma and K. V. Juneja, 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 CBI vs. Rajesh Kohli & Ors. 94 of 115 pages 95 CBI case . No.19/11 loss to the National Insurance Company Ltd., Govt. of India Undertaking. That they have cheated the said company to the tune of Rs. 4,59,163/. 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 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. CBI vs. Rajesh Kohli & Ors. 95 of 115 pages 96 CBI case . No.19/11
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. Convict Anil Maheshwari has submitted that he is 57 years of age and has an old mother of around 82 years of age, besides two children. That he is contemplating marriage of his daughter in the month of December, this year.
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 CBI vs. Rajesh Kohli & Ors. 96 of 115 pages 97 CBI case . No.19/11 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 K. V. Juneja too prayed for a lenient view stating that he is 62 years of age and he is afflicted with various ailments like diabetes and low blood pressure. That his role was limited, in the present case.
9. Convict V. K. Bhutani contended that till the date of conviction, he has been working in the same Department and that no departmental action was initiated against him for the offences committed in this case and that he is the only earning member in his family.
10. All the convicts have, thus, prayed for taking a lenient view. They all have further prayed for CBI vs. Rajesh Kohli & Ors. 97 of 115 pages 98 CBI case . No.19/11 release on probation.
11. 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.
12. Similarly, it is stated that convict Vinod Kumar Bhutani is held guilty in more than one case. He CBI vs. Rajesh Kohli & Ors. 98 of 115 pages 99 CBI case . No.19/11 too acted in pursuance to the criminal conspiracy and as a public servant, dishonestly processed and recommended false, forged and fabricated insurance claims in three cases and caused illegal pecuniary gains to the other convicts.
13. Regarding the convict Anil Maheshwari, it is stated that he was the beneficiary of the fraudulent claim. That he pocketed the claim money, in this case, to which he was not legally entitled to. He has successfully cheated the National Insurance Company Ltd. alongwith other convicts. That he is not entitled to any mercy or compassion.
14. Regarding the convicts Arvind Kumar Sharma and K. V. Juneja, 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. CBI vs. Rajesh Kohli & Ors. 99 of 115 pages 100 CBI case . No.19/11
15. 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.
16. On behalf of the CBI, following case law have been cited:
(i) State V A Parthiban, AIR 2007 Supreme Court 51,
(ii) State V Ratan Lal Arora, AIR 2004 Supreme Court 2364 &
(iii) Ram Narain Poply Vs. CBI, AIR 2003 Supreme Court 2748
(iv) State of J & K Vs. Vinay Nanda, AIR 2001 SC 611.
(v) State Vs. Rattan Lal Arora (2004) 4 SCC 590.
17. 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 CBI vs. Rajesh Kohli & Ors. 100 of 115 pages 101 CBI case . No.19/11 Court of Delhi)
(iii) State of J & K Vs. Vinay Nanda, Manu/SC/0028/2001
18. 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.
19. The Hon'ble Apex Court in the case of State of Rajasthan Vs. Vinod Kumar, decided on, 18th May, 2012 (Criminal Appeal No. 1887) reiterated the law laid down in State of J&K Vs. Vinay Nanda, AIR 2001 SC P 611, and observed that superannuation of the convict and the pendency of criminal trial for over a period of time cannot be treated a special reason to reduce the sentence.
20. In the same appeal quoting 'M B Joshi Vs. State of Maharashtra, AIR 2001 SC 147' the Hon'ble Apex Court observed that:
CBI vs. Rajesh Kohli & Ors. 101 of 115 pages 102 CBI case . No.19/11 "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."
21. It was observed by the Hon'ble Supreme Court in the case reported as State of J & K Vs. Vinay Nanda, AIR 2001 SC P 611, that :
"Corruption at any level, by any person, of any magnitude, is condemnable, which cannot be ignored by the Judicial Courts, when proved. No leniency is required to be shown in proved cases under the Prevention of Corruption Act which itself treats the offences under it of a special nature to be treated differently than the general penal offences. The convicts of the offences under the Act are to be dealt with heavy hand and deterrant rod. No populous or sympathetic CBI vs. Rajesh Kohli & Ors. 102 of 115 pages 103 CBI case . No.19/11 approach is needed in such cases."
22. 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'."
23. It was observed by the Hon'ble High Court in the cases reported as Jai Bhagwan Vs. State (NCT of Delhi), 2008 150 DLT 46 (Delhi) and Ravinder Kumar Arora Vs. CBI Manu/DE/8816/2007 (Delhi) , that :
"It is a normal thing that 'trial' of the person is considered a period of 'agony' undergone by him. But we tend to forget the agony of the society and the complainant who dared lodge the complaint. The CBI vs. Rajesh Kohli & Ors. 103 of 115 pages 104 CBI case . No.19/11 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.
24. It was held by the Hon'ble Supreme Court in the case reported as State of M. P. Vs. Shambhu Dayal Nagar, (2006) 8 SCC P 693, that :
"Corruption by public servant has become gigantic problem. It has CBI vs. Rajesh Kohli & Ors. 104 of 115 pages 105 CBI case . No.19/11 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."
25. 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."
26. 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."
27. The convicts, therefore, cannot be enlarged on probation in this case relating to serious CBI vs. Rajesh Kohli & Ors. 105 of 115 pages 106 CBI case . No.19/11 offences.
28. 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 sociopolitical
system exposed to such a dreaded
communicable disease is likely to
crumble under its own weight.
Corruption is opposed to democracy
and social order, being not only
anti people, but aimed and targeted
against them. It affects the economy
and destroys the cultural heritage."
CBI vs. Rajesh Kohli & Ors. 106 of 115 pages 107 CBI case . No.19/11
29. 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 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."
CBI vs. Rajesh Kohli & Ors. 107 of 115 pages 108 CBI case . No.19/11
30. 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 :
"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."
CBI vs. Rajesh Kohli & Ors. 108 of 115 pages
109
CBI case . No.19/11
31. 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 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".
32. 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 CBI vs. Rajesh Kohli & Ors. 109 of 115 pages 110 CBI case . No.19/11 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."
33. It was further held in the case law reported as Kishan Dayal vs. State, 1958 Raj LW 596 that:
" A corrupt official is a menace to the society and far from helping in the proper functioning of the Government and implementing of the laws, brings the Government and the society at large into disrepute. It is through the agency of the public servants that the policy of the Legislature as well as of the Government is implemented. It is through the public servants that crimes are detected and offenders are brought to book. It is through strictly honest and incorruptible public servants that the welfare of the society can be ensured. If such public servants are open to corruption and coerce the public CBI vs. Rajesh Kohli & Ors. 110 of 115 pages 111 CBI case . No.19/11 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."
34. It was held in the case reported as Madhukar Bhaskarrao Joshi vs. State of Maharashtra, 2001 Cr. LJ 175(SC): that:
"When corruption was sought to be eliminated from the polity all possible stringent measures are to be adopted within the bounds of law.
One such measure is to provide condign punishment. Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving CBI vs. Rajesh Kohli & Ors. 111 of 115 pages 112 CBI case . No.19/11 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 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 CBI vs. Rajesh Kohli & Ors. 112 of 115 pages 113 CBI case . No.19/11 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."
35. I have thoroughly and carefully considered the rival contentions. I have also examined the asserted mitigating and aggravating circumstances, pointed out by the parties. I am of the considered opinion that considering all the aspects of the matter, the following sentence shall be appropriate to meet the ends of justice and as such is awarded :
(i) All the five 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.
CBI vs. Rajesh Kohli & Ors. 113 of 115 pages 114 CBI case . No.19/11
(ii) Convict Anil Maheshwari, who fraudulently cheated the National Insurance Company Ltd., to the tune of Rs.4,59,163/, is sentenced to four years rigorous imprisonment besides a fine of Rs.5 lakhs, in default, one year simple imprisonment for the offence punishable under Section 420 IPC. For the offence punishable under section 471 IPC, convict Anil Maheshwari 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 K. V. Juneja are awarded sentence of rigorous imprisonment for three years and six months and a fine of Rs.10,000/ each, in default, two months simple imprisonment for the offence punishable under sections 468 IPC.
(iv) Convicts Rajesh Kumar Kohli and Vinod Kumar Bhutani, who are convicts in several CBI vs. Rajesh Kohli & Ors. 114 of 115 pages 115 CBI case . No.19/11 cases, are hereby awarded a sentence of four years rigorous imprisonment and a fine of Rs. 25,000/, in default, three month simple imprisonment, each, for the offence punishable under section 13 (2) read with section 13 (1) (d) of the the Prevention of Corruption Act, 1988.
36. From out of the fine imposed upon convict Anil Maheshwari, if realised, a sum of Rs. Five Lakhs be paid to the NIC Ltd, complainant, as compensation.
37. All the aforesaid sentences shall run concurrently.
38. Benefit of section 428 Cr.P.C. is extended to the convicts.
39. A copy of the judgment and order on sentence be given to all the convicts, free of cost, forthwith.
40. File be consigned to record room.
Announced in the open court ( N. K. Kaushik ) on 7th December, 2012 Special Judge (PC Act) CBI Dwarka Courts CBI vs. Rajesh Kohli & Ors. 115 of 115 pages