Delhi District Court
Cbi vs Rama Nand Gupta Etc on 23 August, 2019
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN:
SPECIAL JUDGE 03 (P.C.ACT), CBI :
ROUSE AVENUE COURT COMPLEX: NEW DELHI.
CC.No. 06/2019
Registration no. 84/19
CNR no. DLCT110003962019
RC no. 14(A)/2017
PS: CBI/ACB/New Delhi
CBI VS Rama Nand Gupta Etc
Under Acts & Sections: Section
120B IPC read with section
409/477A/471 IPC & u/s 13(2)
read with 13(1) (d) of the PC Act,
1988.
CC no. : 06/2019
Registration no. : 84/19
Name of the accused : (1) Rama Nand Gupta S/o Sh. Ram Avtar Gupta
and parentage R/o B4, 167B, Lawrence Road, Keshav Puram,
Delhi.
(2)Bhuvnesh Kumar Julka S/o Sh. M.L. Julka,
R/o B53, Shakti Apartments, Sector9, Rohini
Delhi. Alternative address: A32 Rose Apartment
Sector14 Extension, Rohini. Permanent Address:
G64, Metro view, Max Height Apartments, Kundli,
Sonepat, Haryana.
(3) Jeetander Veer Arora,S/o Late Sh. Balraj Kumar
R/o A140, PhaseII, Ashok Vihar, Delhi52.
Date of institution : 26.03.2018
Date of judgment reserved : 20.08.2019
Date of decision : 22.08.2019
JUDGMENT
1. The accused persons are facing trial for the offences under Section 120B IPC read with section 409/471/477A IPC & u/s 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 (hereinafter referred as the P.C Act). The accused persons are C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 1/92 further chargesheeted for the substantive offences u/s 409, 471, 477A read with section 120B IPC and also under section u/s 13(2) read with Section 13(1) (d) of the P.C Act and section 120B IPC. Accused no.1 Rama Nand Gupta was working as Senior Manager in Punjab National Bank, Civil Lines Branch, Delhi alongwith accused no.2 Bhuvnesh Kumar Julka as Dy. Manager and accused no. 3 Jeetander Veer Arora as Head Cashier.
2. Prosecution case in brief is that Sh. Rajender Kumar Bansal, Dy. Circle Head, Punjab National Bank, Rajendra Place, New Delhi gave a written complaint dated 05.04.2017 alleging that during demonetization period (10.11.2016 to 30.12.2016), some false records have been created at two occasions in the computer/ Core Bank Solution (CBS) of the Civil Lines Branch of PNB contrary to the original physical vouchers filled by the depositors as the depositors had deposited cash in legal tender notes of Rs.100, Rs.50, Rs.20, Rs.10, Rs.5, Rs.2, Rs.1 notes/coins as per denomination mentioned in the cash voucher whereas it has been posted in the computer/CBS as the Specified Bank Notes(SBN) of Rs. 1000 and Rs. 500 i.e. banned currency which is gross violations of orders and rules as promulgated by Government of India and RBI. The unauthorized exchange of Rs. 10,51,000/ of SBNs with legal tenders was done by the above officials of the PNB, Civil Lines.
3. Government of India demonetised the old currency notes of Rs. 1000/ and Rs.500/ denomination w.e.f 09.11.2016. In consonance thereof RBI and Punjab National Bank (hereinafter referred as "PNB") also issued guidelines. As per RBI circular no.
C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 2/92 RBI/201617/112 dated 08.11.2016 there shall not be any limit on the quantity or value of the Specified Bank notes to be credited to the account maintained with the bank by a person, as per standard banking procedure and on production of valid proof of identity.
4. During demonetization period on 20.12.2016, a report was aired in TV channels for some irregularities for exchange of SBN notes at PNB, Civil Lines. On the basis of said news/report, an internal investigation was carried out by the Vigilance branch of PNB. The said internal/vigilance enquiry was conducted by Sh. V.M. Upadhyay, the then DGM PNB, Zonal Audit office second floor, PNB House, NIT (behind Neelam Cinema) Faridabad with assistance of Sh. Nitin Patodi, Sr. Manager and Sh. Deepak Singhal, Internal Chief Auditor of PNB. During said vigilance enquiry it was found that the denomination of currency notes mentioned in the CBS system in respect to transaction ID no. M1065597 and M173437 are different from the denomination mentioned on the cash deposit vouchers. The depositors had deposited cash in legal tenders notes as per the denomination mentioned in the cash voucher whereas it has been posted in the computer/CBS as SBN (specified Bank notes) notes of Rs.1000/ and Rs.500/. In the vigilance enquiry the responsibility was fixed on the part of Jeetander Veer Arora (accused no.3) and Rama Nand Gupta (accused no.1) and Bhuvnesh Kumar Julka (accused no.2), hence complaint was forwarded to CBI by Rajendra Kumar Bansal Dy. Circle Head, PNB North Circle, Rajendra Place New Delhi to investigate the matter. On the basis of the said written complaint dated 05..04.2017 CBI registered the case on 06.04.2017 for the offence u/s 120B read C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 3/92 with section 409/471/477A IPC and under section 13 (2) r/w/s 13 (1) (d) of the P.C. Act, 1988.
5. The Transaction ID no. M1065597 and M173437 were related to the cash deposits dated 23.11.2016 of Rs. 9,00,000/ in the account no. 0115002100062101 and Rs. 1,51,000/ in the account no. 0115002100058348. It is further revealed that the current account no. 0115002100062101, maintained at PNB, Civil Lines is related to M/s Shri Shyam Sales Corporation which deals in the business of beverages and the account no. 0115002100058348 is related to M/s Moon Enterprises.
6. On 23.11.2016 Sh. Rajender Singh office boy of M/s Shri Shyam Sales Corporation approached the PNB, Civil Lines to deposit Rs. 9,00,000/ in legal tender notes i.e Rs. 100X9000 pieces=Rs.9,00,000/ in routine process of its business and he deposited the same amount through cash deposit voucher dated 23.11.2016 duly filled in his own handwriting. In the said cash deposit voucher, he mentioned the denomination of the deposit notes alongwith his initials. After receiving the said amount accused no.3 Jeetander Veer Arora (the then head cashier) kept the bank voucher of the said deposit with him and returned the customer counter foil to Sh.Rajender Singh under his signature and the stamp of the bank. Counterfoil also has details of currency notes which were deposited in the bank. The said cash deposit voucher was entered and posted by accused no.3 Jeetander Veer Arora, in the CBS system on the transaction ID no. M1065597 against the account of M/s Shri Shyam Sales Corporation. The transaction was further verified by accused no.2 Bhuvnesh Kumar Julka (Deputy C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 4/92 Manager).
7. Similarly, on 23.11.2016 Sh. Gopal Ram, office boy of M/s Moon Enterprises approached the Civil Lines branch of the PNB to deposit Rs. 1,51,000/ in legal tender notes i.e Rs. 2000X3 pieces, Rs.100 X 950 pieces, Rs. 50 X 280 pieces, Rs. 20 X 300 pieces and Rs.10 X 3000 pieces in routine process of its business and he deposited the said amount through a cash deposit voucher dated 23.11.2016 duly filled in his own handwriting. In the said cash deposit voucher, he mentioned the denomination of currency notes to be deposited alongwith his initials. After receiving of said cash accused no.3 Jeetander Veer Arora kept the said bank voucher of the said deposit with him and returned the customer counterfoil to Sh. Gopal Ram under his signature and the stamp of bank. Counterfoil also has details of currency notes which were deposited in the bank. The said cash deposit voucher was entered by accused no. 3 Jeetander Veer Arora in the CBS system on the transaction ID no. M1065597 against the account of M/s Shri Shyam Sales Corporation. This transaction was further posted and verified by accused no.1 Rama Nand Gupta (Senior Manager).
8. Further, as per circular no. 123/2016 dated 10.11.2016 of PNB, HO, a menu in the name of CASHDEP was developed by IT division of PNB for entering the SBNs and legal tender in their prescribed fields. When the said entries of SBNs and legal tender notes were made in the CASHDEP menu, the same will be automatically updated/reflected in the remark's column of Transaction maintenance (TM) menu which is a separate menu to be viewed any time. It is further revealed that the remark's column C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 5/92 of TM menu, reflect the deposit of SBNs of Rs.1000/ & Rs. 500/ with the symbols "#". If entire deposit amount is in the denomination of Rs. 1000/then TM menu will show number of currency notes and then "##". If deposit amount is consisting of SBN Rs.500/then TM Menu will show, firstly number of currency notes of Rs. 500/ denomination alongwith single "#".
9. The investigation further revealed that the remark's columns of screen shot of transaction maintenance (TM) pertaining to transaction ID M1065597 dated 23.11.2016 reflects/shows the cash deposit of Rs. 9,00,000/ as "900##" which means 900 pieces of Rs.1000SBN and 0 pieces of Rs. 500 SBN were deposited. It is further revealed that the remark's column of screen shot pertaining to transaction ID M173437 dated 23.11.2016 reflects/shows the cash deposit for Rs. 1,51,000/ as "51##200#" which means 51 pieces of Rs.1000SBN and 200 pieces of Rs. 500 SBN were deposited.
10. Investigation further revealed that in both the said transactions the cash was accepted and entered in the CBS system by Jeetander Veer Arora (accused no. 3) through his ID. It is also revealed that the denomination of the currency notes reflected in the remark column of "TM" menu and as mentioned in the bank vouchers are different. The denominations of the currency notes reflected in the remark's column of "TM" menu shows that the said deposit was received in SBN notes of Rs. 1000/ and Rs. 500/ while the denomination of the currency notes mentioned in the bank vouchers, are in the form of legal tender notes. Accused no. 3 Jeetander Veer Arora while making entries in CBS system changed C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 6/92 the denomination of legal tender notes with the SBNs with a dishonest intention. As per circular no. 14/2012 dated 27.01.2012, he was responsible to check the denomination of the currency notes of each cash deposit tendered to him by the customer and to tally the same with the denomination mentioned in the cash deposit vouchers. After checking and tallying the denomination it was responsibility of that cashier to enter the correct denomination in the CBS system as per the denomination mentioned in the cash deposit voucher. It is further revealed that the positing of the said deposit of Rs. 9,00,000/ dated 23.11.2016 was also made by accused no. 3 Jeetander Veer Arora with dishonest intention, which is a gross violation of circular no. 14/2012 which clearly mentioned that the maker and checker of transaction could not be the same.
11. Investigation further revealed that as per the circular no.
14/2012 dated 27.01.2012 para 26 subpara 7, the posting power of head cashier is Rs. 50,000/ jointly with an authorised person. To justify the posting power of Rs. 50,000/ by Head cashier, Bhuvnesh Kumar Julka (accused no. 2) initiated the enhancement of power of accused no. 3 Jeetander Veer Arora for posting the cash in the CBS system from Head Cashier (025) to Assistant Manager (050) as revealed from the Audit File report dated 23/11/2016 and accused no.1 Rama Nand Gupta authorised him for the same. But no office order was issued in this regard and no entries made in the PNB arrangement register. This fact clearly indicate that the enhancement of power of accused no. 3 Jeetander Veer Arora was initiated by accused no. 2 Bhuvnesh Kumar Julka which was further authorised by accused no.1 Rama Nand Gupta without any written C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 7/92 instructions of the competent authority with a motive to allow the posting of the said amount without the same coming to the notice of others.
12. The investigation further revealed that all employees/officials of PNB are authorized to access the CBS system by means of UserID, Password and Biometric as per their profile. No employee/ officials are authorised to access the CBS system by using userID and password of other official. During investigation related documents like screenshots of transaction details, cash receipt/payment, statement of accounts, audit file entries, related cash deposit vouchers, vigilance enquiry report were seized/collected from the PNB bank/private persons. The relevant witnesses from the bank as well as private persons were also examined interrogated. Expert opinion for the handwriting/ signature has been obtained from CFSL/CBI/New Delhi.
13. After completion of investigation, chargesheet was submitted before the court on 26.03.2018.
14. Vide order dated 17.04.2018, Ld Predecessor has taken the cognizance against all the accused persons and they were ordered to be summoned for 18.05.2018.
15. Vide order dated 26.10.2018, charges were framed against the accused persons for the offence under section 120B read with section 409 IPC, 477A IPC, 471 IPC and under section 13(2) read with section 13 (1) (d) of the P. C Act, 1988 and also for the substantive offence u/s 409 IPC read with section 120B IPC, u/s 471 IPC read with section 120B IPC, u/s 477A IPC read with section 120B IPC and under section 13(2) read with section 13 C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 8/92 (1) (d) of the P. C Act, 1988 and section 120B IPC to which they pleaded not guilty and claimed trial.
16. In support of its case prosecution has examined in total 21 witnesses. Brief summary of deposition of witnesses is as under:
17. PW1 Sh. Tahir Rehman is the manager of M/s Moon Enterprises for the last 2025 years and his mother Smt. Parveen Rehman is the proprietor of the said firm. PW1 proved the counter foil of the cash deposit slip (D14) dated 23.11.2016 for an amount of Rs. 1,51,000/ as Ex.PW1/A. PW1 also proved the cash deposit slip (D32) filled by him bearing his signature at pointA as Ex. PW1/B. He has also proved the seizure memo dated 21.04.2017 (D11) as Ex PW1/C regarding seizure of ledger, cash book counterfoil slip. He has also proved the authority letter Ex. PW1/D (D12) issued by his mother. He has proved the forwarding letter dated 21.04.2017 as Ex.PW1/E (D13) vide which the extract of ledger book, extract of ledger account and counter foil of the cash deposit slips handed over to CBI and the extract of ledger account as Ex. PW1/F and cash book as Ex. PW1/G. He has also proved certificate under section 65B of the Evidence Act as Ex. PW1/H.
18. PW2 Sh. Gopal Ram is the employee of M/s Moon Enterprises and he used to do office work as well as deposit of cash of the firm in the bank. On 23.11.2016 he was given Rs. 1,51,000/ alongwith deposit slip by Sh. Tahir Rehman (PW1) and he deposited the cash with the cashier in the bank. He has proved the counterfoil of the deposit slip already Ex. PW1/A (D14) and PW1/B (D32).
19. PW3 Sh. Ranjit Chaudhary is working in M/s Shri Shyam C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 9/92 Sales Corporation Since 2016 which deals with trading of cold drink and packed drinking water. Sh. Ashok Kumar is the proprietor of the firm. He has proved the seizure memo dated 26.05.2017 (D16) as Ex. PW3/A. He has also proved the authorization letter (D17) given by Sh. Ashok Kumar proprietor of the firm as Ex. PW3/B. He has also handed over the extract of cash ledger of the firm from 01.10.2016 to 30.11.2016 (D18) and proved the same as Ex.PW3/C. He had also handed over the original counterfoil dated 23.11.2016 through which amount of Rs. 9 Lacs was deposited in the bank. He has proved the counterfoil as Ex. PW3/D (D19). He has also handed over the certificate under section 65B of Indian Evidence Act for extract of ledger account as Ex. PW3/E (D20). He has also proved the cash deposit slip (D31) filled by Sh.Rajinder Singh as Ex.PW3/F. He further deposed that on 23.11.2016 the firm had deposited Rs. 27,00,000/ in the bank vide three vouchers of Rs. 9,00,000/ each.
20. PW4 Sh. Rajender Singh is working with M/s Shri Shyam Sales Corporation for two years from 2015 to 2016 as a parttime worker. He used to deposit the cash in the PNB, Civil Lines. He used to receive cash from Sh. Ranjit Chaudhary by filing the cash deposit slip. He has proved the documents Ex. PW3/D (counterfoil) and Ex. PW3/F (cash deposit slip). He further deposed that he handed over the cash to accused no. 3 and duly identified him.
21. PW5 Sh. Ashit Kumar Jain has joined Punjab National Bank as Management Trainee on 12.7.1993 and remained posted in Punjab National Bank, Civil Lines Branch, Delhi from April, 2016 to mid of 2017 as Chief Manager/Deputy Branch Head. He further C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 10/92 deposed that during investigation, he had handed over documents through his forwarding letter dated 24.4.2017 (D2) as Ex. PW 5/A bearing his signature at pointA. The documents handed over through the aforesaid letter includes certified copy of screen shot dated 23.11.2016 (D3, 4 pages) for cash deposit of Rs. 9 lacs in the account of M/s Shree Shyam Sales Corporation exhibited as Ex. PW 5/B (colly.). He also handed over computer generated attested copy of screen shot dated 23.11.2016 (D4, 4 pages) for cash deposit of Rs. 1,51,000/ in the account of M/s Moon Enterprises as Ex. PW 5/C (colly.) and also handed over computer generated attested copy of cash book dated 23.11.2016 (D5 10 pages) as Ex. PW 5/D (colly.). He also handed over computer generated attested copy of account statement of M/s Shree Shyam Sales Corporation and M/s Moon Enterprises as Ex. PW 5/E (3 pages) and Ex. PW 5/F (3 pages) respectively (Part of D5). PW5 also handed over circular of RBI in relation to demonetization (D6) as Ex. PW 5/G (7 pages) and handed over bank guidelines dated 11.11.2016 regarding feeding of denomination in the bank system in relation to currency notes (D7) as Ex. PW 5/H (3 pages) and also handed over attested copy of account opening form along with KYC documents of Shree Shyam Sales kept in the branch's record along with attested screen shot of account details of M/s Moon Enterprises as Ex. PW 5/I (19 pages) (D8). The screen shots of accounts details of M/s Moon Enterprises also bears his attestation at point 'A' on all the pages as Ex. PW 5/J (7 pages). PW5 also gave attested copy of bank guidelines vide GBD circular No. 123/2016 (D10) as Ex. PW 5/K (9 pages). PW5 have also given certificate under Section 2(A) of C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 11/92 Bankers Books of Evidence Act for computer printouts regarding screen shots, cash book and statement of account as Ex. PW 5/L. PW5 has also handed over documents to CBI through another letter dated 13.6.2017 (D21) as Ex. PW 5/M. The document handed over through the letter includes attested copy of audit file entries from 23.11.16 to 23.11.16 in respect of work class in CBS of Sh. J. V. Arora, then Head Cashier HCII (D22) as Ex. PW 5/N. PW5 has also given certificate under Section 65B of Evidence Act and under Section 2(A) of Bankers Book of Evidence Act as Ex. PW 5/O (D23) and Ex. PW 5/P (D24). PW5 further deposed that during Nov. 2016, accused Rama Nand Gupta was working as Sr. Manager, accused Bhuvnesh Kumar Julka was working as Deputy manager and accused Jeetender Veer Arora was working as Head CashierII in PNB Civil Lines branch. (Correctly identified). He further deposed that CASHDEP menu (D10) was used for entering details of the customers depositing cash of denomination of Rs. 1,000 and Rs. 500/ along with other denominations in the CBS system. During the demonetization period this menu was used to record the withdrawn legal tender details [Rs.1000/ Rs. 500/ (old)] and also the legal tender in vogue and the responsibility to feed the detail was of front line staff and the details of denomination of currency were to be filled as tendered by the customer. He has also proved Ex. PW 5/B, i.e. screen shot of transaction ID No. M1065597 dated 23.11.2016 of the account of M/s Shree Shyam Sales Corporation. As per the remark column the denomination is shown as 900 pieces of Rs.1000/ denomination notes showing deposit of Rs. 9 lacs. Witness seen the Ex. PW 3/F (D31) which is original cash deposit C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 12/92 voucher of M/s Shree Shyam Sales Corporation dated 23.11.2016 through which Rs. 9 lacs were deposited and the cash deposit voucher shows 9000 pieces of Rs.100/ denomination notes. The voucher bears the transaction no. M1065597 at point 'Q3' and it also bears initials of the bank staff who received the cash. The page 3 of Ex. PW 5/B shows that the entry and posting was made by Sh. Jeetander Veer Arora Head Cashier and verified by accused Bhuvnesh Kumar Julka. The entries in respect of above transaction is also reflected in the statement of account Ex. PW 5/E of Shree Shyam Sales Corporation showing three transactions of Rs. 9 lacs on 23.11.2016. PW5 has seen the Ex. PW 5/C, i.e. screen shot of transaction ID No. M173437 dated 23.11.2016 of the account of M/s Moon Enterprises and as per the remark column the denomination is shown as 51 pieces of Rs.1000/ and 200 pieces of Rs.500/ denomination notes showing deposit of Rs.1,51,000/ and Ex. PW 1/B (D32) which is original cash deposit voucher of M/s Moon Enterprises dated 23.11.2016 through which Rs. 1,51,000/ were deposited and the cash deposit voucher shows 3 pieces of Rs. 2000/, 950 pieces of Rs. 100/, 280 pieces of Rs. 50/, 300 pieces of Rs. 20/ and 3000 pieces of Rs. 10/ denomination notes; the voucher bears the transaction no. M173437 at point 'Q4' and it also bears initials of the bank staff who received the cash; the page 3 of Ex. PW 5/C shows that the entry and posting was made by Sh. J. V. Arora HC and verified by Sh. R. N. Gupta; the entries in respect of above transaction is also reflected in the statement of account Ex. PW 5/F of M/s Moon Enterprises and the statement of account shows transaction of Rs. 1,51,000/ on 23.11.2016 at point 'X' to C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 13/92 'X'; the transaction pertaining to Moon Enterprises and Shree Shyam Sales Corporation are also reflected in cash book of 23.11.2016 of PNB branch on point 'A' page 2 and point 'B' on page 6 of Ex. PW 5/D. PW5 has proved the bank circular No. 14/2012 Ex. PW 5/Q (D26, 26 pages) which is instructions regarding passing and signing powers of bank officials; RBI guidelines exhibited as Ex. PW 5/G pertains to withdrawal of legal tender character of existing Rs.1000/ and Rs. 500/(old) currency notes and the circular is addressed to Chairman/Managing Director/Chief Executive Officers of all public sector banks, private sector banks, foreign banks, regional rural banks, urban cooperative banks, state cooperative banks; after seeing the audit file entries Ex. PW 5/N, work class shows that key value 51738JVA has been modified from work class old value 025 to work class new value 050 on 23.11.2016; the authorised user ID for old value was 52947 YP and new value 111332BKJ; the reference number is 1065862340 and is entered by 111332BKJDB and authorised by 47529RNGDB. 51738 is PF number of accused Jeetander Veer Arora and 47529 is PF number of accused Rama Nand Gupta and 111332 is PF number of accused Bhunesh Kumar Julka; the work class is to be modified under written instructions which is done generally in the case of staff shortage at the branch level and is mentioned in the arrangement register. PW5 was shown arrangement register, part of D34 and after seeing arrangement register of the period 10.07.2015 to 29.12.2016, witness stated that there is no instructions mentioned in the arrangement register for date 23.11.2016; the arrangement register is now exhibited as Ex. PW C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 14/92 5/R (page no. 10 to page no. 34 of D34).
22. PW 6 Sh. V.M. Upadhyay was the Deputy General Manager of Punjab National Bank at Zonal Audit Office, Faridabad from 2013 to Jan. 2017 and he was looking after the audit work of branches of Delhi zone; in Dec. 2016, he had conducted investigation regarding irregularities in demonetization work. Sh. Vipin Kumar Pataudi, Sr. Manager, Sh. R.K. Vohra, AGM (Retd.) and concurrent audit at that time and Sh. Deepak Singhal, Chief Concurrent Auditor assisted him. He further deposed that during his investigation it has to be checked whether the specified bank notes (SBN) were properly accounted for in the branch or not; they checked the vouchers pertaining to deposit of SBN by verifying it from CBS and also checked the payment and receipt of legal tender very generally; there were certain SBNs which were mentioned on the vouchers, however, receipt of which not accounted for in the category of notes of SBN; there was one other menu titled "others"; the receipt of total SBNs in the record of the bank as written on the voucher and the total SBNs with the bank on that day did not tally with the receipt of SBNs; it implies that legal currency was exchanged against SBNs but these SBNs were not accounted for; he had given the report dated 02.01.2017 of his investigation to the bank. He has proved his report prepared after his investigation as Ex. PW6/A (D29) along with its annexures running into 69 pages which bears his initials on each page at point 'A' and signature impression on the last page at point 'B'. He further deposed that his findings regarding transaction M1065597 dated 23.11.2016 and M173437 dated 23.11.2016 are mentioned on page C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 15/92 23 from point A to A of the report Ex. PW 6/A and has analyzed the cash deposit vouchers of M/s Shree Shyam Sales and M/s Moon Enterprises and screen shots of the aforesaid deposits before reaching his conclusion.
23. PW7 Sh. Anil Kasliwal was posted as AGM in the Punjab National Bank, Civil Lines branch, New Delhi from July, 17 to July,
18. and the Data base administration (DBA) has defined roles as per guidelines of the bank; the directions/instructions issued by the DBA regarding change of work class could be in written or oral and if it is in oral, it has subsequently to be converted into written instructions; such instructions are recorded in the arrangement register of the branch.
24. PW8 Sh. Ashok Kumar deposed that in the year 2016 he alongwith Ranjeet Choudhary constituted a firm in the name and style of M/s Shri Shyam Sales Corporation; they had opened a bank account of the firm in Punjab National Bank, Civil Lines Branch, New Delhi.
25. PW9 Sh. Nitin Patodi is the Senior manager of Punjab National Bank, Vigilance department in the month of August , 2017; at Zonal Audit Office (ZAO) his duties were to look after staff accountability, investigation and fraud; Sh. V.M. Upadhyay, DGM of the ZAO, Faridabad on 27.12.2016 directed him (PW9) to assist him in the investigation of branch office, Civil Lines, regarding the irregularities committed by the bank officials during demonetization drive of Government of India. During investigation they have checked daily legal tender payment and receipt, exchange of SBN currency with legal tender, all cash entries mentioned in cash book C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 16/92 of the branch extracted from Core Bank Solution (CBS). During demonetization scheme of Government of India , as per RBI guidelines SBN currency notes were deposited and exchanged at schedule bank branches and Punjab National Bank had issued new CBS menu option 'Cashdep' for deposit of cash at it branches and the SBN currency notes was to be deposited only through this menu and bank official required to enter denomination of each tendered currency note in relevant denomination column. He further deposed that during enquiry conducted by Sh. V.M.Upadhyay , the then DGM, the cash deposit vouchers were scrutinized specially cash deposited in legal tender and same were checked with CBS system to check whether correct denomination were entered or not in the system. During enquiry, two cash vouchers dated 23.11.2016 for the account of M/s Shri Shyam Sales Corporation account no. 0115002100062101 (already Ex. PW3/F) and M/s Moon Enterprises A/c no. 0115002100058348 (already Ex. PW1/B) were examined and the observation regarding these vouchers were made during the enquiry mentioned in the enquiry report dated 02.01.2017 already Ex. PW6/A bearing the signature of Sh. V.M. Upadhyay. The cash deposit vouchers dated 23.11.2016 is for the account of M/s Shri Shyam Sales Corporation A/c no. 0115002100062101 (already Ex.PW3/F) and certified screenshot of said transaction no. M1065597 in CBS system. As per this voucher the depositor had deposited 9000 notes in denomination of Rs. 100 i.e Rs. 100 X 9000 = 9,00,000/ whereas accused no.3 had entered and posted in CBS menu 900 notes in denomination of Rs. 1000/ i.e Rs. 100X9000 = 9,00,000/. He further deposed that branch C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 17/92 official has entered the banned currency notes in place of legal tender
26. PW10 Sh. Ravi Rashmi Dhar was posted as Deputy General Manager (Circle Head) in Punjab National Bank, New Delhi and he has removed the authority of accused no. 3 (Jeetander Veer Arora). In the year 2016 he had received the request of CBI for granting sanction for prosecution of accused no.3 through the vigilance department of their bank and accordingly he granted sanction vide sanction order dated 21.03.2018 as Ex. PW10/1 and he had forwarded this sanction order to S.P , CBI vide his letter dated 21.03.2018 Ex. PW10/2 (D54).
27. PW11 Sh. Shamsul Arif Jawed was Deputy General Manager, Punjab National Bank, Vigilance Department (HO), Bhikaji Cama Palace, New Delhi. He has proved the letter dated 12.05.2017 as Ex. PW11/A.
28. PW12 Sh. Dhupender Prasad Gond was posted as Lower Divisional Clerk EPFO, Bhikaji Cama Place, New Delhi. He is the witness with regard to productioncumseizure memo already Ex.PW1/C regarding the documents which were handed over by Sh. Tahir Rehman to the CBI and signed the same and proved his signature on the document Ex. PW1/D, Ex.PW1/E, PW1/A and PW1/H.
29. PW13 Sh. Rajender Kumar Bansal is the complainant who was working as Deputy Circle Head in Punjab National Bank, New Delhi. He had made a complaint dated 05.04.2017 as Ex. PW13/1 to Superintendent of Police, CBI, ACB, New Delhi bearing his signature at ptA. He has also proved the copy of the complaint C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 18/92 as Ex. PW13/2 (D1); the complaint was approved by Sh. S.K. Nagpal, Chief Vigilance Officer of the bank. He further deposed that on 20.12.2016 some irregularities in SBNs were observed through TV channels and the same were reported in the Civil Lines Branch of Punjab National Bank ; on the basis of the said report, an internal investigation was carried out by the bank and during investigation some transactions in the said branch were not found as per the guidelines of demonetization scheme which has been mentioned in his complaint Ex. PW13/3(D1); the investigation report is already Ex. PW6
30. PW14 Sh.Phool Singh was the Chief Manager of PNB and he has proved the attendance register as Ex. PW14/A and handing over memo of the same as Ex. PW14/B, certificate under section 2A of Banker's Book of Evidence Act, 1891 as Ex. PW14/F and Certificate under section 65B of Indian Evidence Act Ex PW14/G, letter dated 17.11.2017 as Ex. PW 14/H alongwith annexures as Ex. PW14/I & PW14/J, certificate under section 2A of Banker's Book of Evidence Act, 1891 as Ex. PW14/K and Certificate under section 65B of Indian Evidence Act Ex PW14/L. He has duly identified the accused Jeetander Veer Arora (Head Cashier) and accused Rama Nand Gupta (Senior Manager).
31. PW15 Sh. D.K. Sharma was posted as Assistant General Manager of Punjab National Bank at Zonal Office Disciplinary Action Cell, Rajendra Bhawan, Rajendra Place New Delhi. He has proved the letter dated 21.03.2018 as Ex. PW15/A (D53) vide which he had forwarded the sanction orders for prosecution of accused Rama Nand Gupta and Bhuvnesh Kumar Julka to S.P CBI, C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 19/92 ACB, New Delhi. The sanction for prosecution was granted by Sh. V.P. Jain, Zonal Manager, Delhi.
32. PW16 Sh. V.P. Jain , during the year 2018 was posted as Zonal Manager in Punjab National Bank. He has removed the authority of accused Rama Nand Gupta and Bhuvnesh Kumar Julka . He has received the request of CBI for granting sanction for prosecution against accused Rama Nand Gupta and Bhuvnesh Kumar Julka through vigilance department of their bank. After carefully examining the CBI files containing the police report and special investigation report of their bank, he accorded the sanction for prosecution of accused Rama Nand Gupta and Bhuvnesh Kumar Julka. He has proved the sanction orders dated 21.03.2018 as Ex. PW16/A and Ex. PW16/B.
33. PW17 Sh. Iqubal Latif was posted as officer in Canara Bank, Risk Management Section and on 26.05.2017 he has witnessed the seizure of the documents from Ranjeet Chaudhary, Authorized Representative of M/s Shri Shyam Sales Corporation and proved the productioncumseizure memo dated 26.05.2017 already Ex. PW3/A. He has also proved the documents already Ex.PW3/B to Ex.PW3/P.
34. PW18 Sh. Satya Narayan was working as conductor in Delhi Transport Corporation. On 09.10.2017 he was called by the CBI for witnessing the specimen writing of accused Jeetander Veer Arora on paper sheet Ex. PW18/A ( marked as S5 to S20 (D50)). He has identified the signature of accused Jeetander Veer Arora at point A & B. He has proved the paper sheets as Ex. PW18/B ( already marked as S29 to S38).
C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 20/92
35. PW19 Sh. Sushil Kumar was the manager of IDBI Bank, Zonal office Videocon Tower Jhandewalan Extension, New Delhi and has witnessed the specimen signature of accused Rama Nand Gupta on the directions of CBI on the papersheets as Ex. PW19/A (colly) (already marked as S21 to S28) and could not identify the signature of accused Rama Nand Gupta at pointB and stated that accused Rama Nand Gupta had signed on the paper sheets in his presence. He has also proved the papersheets as Ex. PW19/B (already marked as S1 to S4) which bears the signature of Rajender Singh at pointB and could not identify the signature of Rajender Singh and said that Rajender Singh had signed on the paper sheets in his presence.
36. PW20 Sh. Vijay Verma is the Senior Scientific Officer who has proved his report as Ex. PW20/B.
37. PW 21 Sh. Arjun Singh is the Investigating officer of this case. Investigation of this case was entrusted to him on 06.04.2017 alongwith FIR dated 06.04.2017 as Ex.PW21/A. It is further deposed by PW21 that he had taken over the documents through handing over/taking over memo dated 13.10.2017 from Shyamal Majumdar, Deputy S.P. CBI, ACB, Delhi which is Ex. PW21/B and the documents which were collected are Ex. PW3/F and Ex. PW 1/B which are the vouchers for a sum of Rs. 9,00,000/ (Rupees Nine Lacs only) and Rs. 1,51,000/ (Rupees One Lacs Fifty One Thousand only). He had also collected the documents vide letter dated 09.11.2017 Ex. PW14/B from Chief Manager, PNB, Civil Lines Branch, New Delhi. The documents so collected vide Ex. PW 14/B are Ex. PW14/C, Ex. PW14/D, Ex. PW14/E, Ex. PW14/A, C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 21/92 Ex. PW14/F, Ex. PW14/G, Ex. PW14/H, Ex. PW14/I, Ex. PW 14/J, Ex. PW14/L and Ex. PW14/K.
38. It is further deposed that he had also taken the specimen signatures / writing of Rajender Singh , accused Jeetander Veer Arora, accused Rama Nand Gupta and Tahir Rehman vide Ex. PW 19/B, Ex. PW18/A, Ex. PW19/A and Ex. PW18/B respectively. He had also collected the personal file of accused Rama Nand Gupta and Jeetender Veer Arora vide Ex. PW21/D and Ex. PW21/E. Thereafter, specimen writing/signatures of accused persons namely Rama Nand Gupta, Jeetander Veer Arora , Rajender Singh and Tahir Rehman were sent to Director CFSL, CGO Complex vide letter dated 17.10.2017 Ex. PW20/A. He had also collected the GEQD opinion dated 08.12.2017 Ex. MPW20/C. Thereafter, he had recorded statement of witnesses under Section 161 Cr.PC and placed them alongwith the chargesheet and after completion of investigation for obtaining sanction, he had forwarded the relevant documents to the sanctioning authority and obtained the sanction orders Ex. PW16/A and Ex. PW16/B of accused Rama Nand Gupta and Bhuvnesh Kumar Julka through letter dated 21.03.2018 Ex. PW15/A. He had also collected the sanction order Ex. PW10/I of accused Jeetander Veer Arora through letter dated 21.03.2018 Ex. PW10/2. It is deposed by the witness that after obtaining sanction order and completion of investigation, he had filed the chargesheet before the Court.
39. The prosecution has proved the following documents in support of their case: C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 22/92 Ex. Documents D. Pages Detail of Documents No. Ex. PW 1/A D14 167 Cash deposit slip of Rs. 1,51,000/ dt. 23.11.2016 Ex. PW 1/B D32 529 Cash deposit slip of Rs. 1,51,000/ dt. 23.11.2016 Ex. PW 1/C D11 157 Production Cum Seizure Memo dt. 21.04.2017 Ex. PW 1/D D12 159 Authorization Letter Ex. PW 1/E D13 161 Letter dt. 21.04.2017 of Moon Enterprises Ex. PW 1/F D13 163 Certified copy of extract of ledger account and cash book Ex. PW 1/G D13 165 Certified copy of cash book Ex. PW 1/H D15 169 Certificate of u/s 65 B of Indian evidence Act 1972 Ex. PW 3/A D16 171 Production Cum Seizure Memo dt. 26.05.2017 Ex. PW 3/B D17 173 Authorization letter of Shri Shyam Sales Corp. dt.
26.05.2017 Ex. PW 3/C D18 13 Extract of Cash ledger 01.10.2016 to 30.11.2016 of Shri Shyam Sales Ex. PW 3/D D19 251 Cash deposit slip counterfoil of Rs. 9 Lakhs Ex. PW 3/E D20 253 Certificate u/s 65B of Indian evidence Act 1872 Ex. PW 3/F D31 527 Cash deposit slip of Rs. 9 Lakhs dt. 23.11.2016 Ex. PW 5/A D2 19 Letter dt. 24.04.2017 of PNB, Civil Line to IO Ex. PW 5/B D3 21 Certified copy of screen shot dt. 23.11.2016 for Cash deposit of Rs. 9 Lakhs in account of M/s Shri Shyam Sales Corp.
Ex. PW 5/C D4 29 Certified copy of screen shot dt. 23.11.2016 for Cash deposit of Rs. 9 Lakhs in account of M/s Shri Shyam Sales Corp.
Ex. PW 5/D D5 37 Cash receipt/payment register of PNB as on dt.
23.11.2016 Ex. PW 5/E D5 55 Statement of account of Shri Shyam Sales of PNB dt.
03.05.2017 Ex. PW 5/F D5 59 Statement of account of Moon Enterprises of PNB dt.
03.05.2017 Ex. PW 5/G D6 65 Circular of RBI of dt. 08.11.2016 Ex. PW 5/H D7 79 Circular of PNB dt 11.11.2016 Ex. PW 5/I D8 85 Account opening form of Shri Shyam Sales Ex. PW 5/J D8 123 Screen shot of account details of M/s Moon Enterprises Ex. PW 5/L D9 137 Certificate u/s 2 (A) of Bankers Book of evidence Act 1891 Ex. PW 5/K D10 139 GBD circular No. 123/2016 dt. 10.11.2016 of PNB Ex. PW 5/M D21 285 Letter dt. 13.06.2017 of PNB Ex. PW 5/N D22 257 Audit file entries from 23.11.2016 to 23.11.2016 Ex. PW 5/O D23 259 Certificate u/s 65B of Indian evidence Act 1872 C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 23/92 Ex. PW 5/P D24 261 Certificate of u/s 2 (A) of Banker Book of evidence Act 1891 Ex. PW 5/R D30 553 Copy of the arrangement register Ex. PW 5/Q D26 265 Circular No. 14/2012 dt. 23.01.2012 Ex. PW6/A D29 387 Certified copy of special investigation report dt.
02.01.2017
Ex. PW6/A D29 413 Copy of Legal Tender received from the customer as
i,ii,vii Annexure 02
Ex. PW6/A D29 415 Copy of Cash Voucher dt. 10.11.2016
III,IV
Ex. PW6/AV D29 417 Copy of Cash Deposit Slip dt. 11.11.2016
Ex. PW6/AVI D29 419 Copy of Cash Deposit Slip dt. 12.11.2016
Ex. PW 9/1 D27 317 Circular No. 39/2011 dt. 16.07.2011
Ex. PW 10/1 Charge Sanction Order
sheet
Ex. PW 10/2 D54 1763 Letter dt. 21.03.2018 of CBI
Ex. PW11/A D28 385 Letter dt. 12.05.2017 of PNB
Ex. PW 13/1 D1 17 First Information Report dt. 05.04.2017
Ex. PW 13/2 D1 3 FIR
Ex. PW 13/3 D1 17 First Information Report dt. 05.04.2017
Ex. PW 13/4 D25 263 Letter dt. 03.06.2017 to IO
Ex. PW 14/A D38 1765(R Attendance register from Oct. 2016 to Dec. 2016
egister)
Ex. PW 14/B D33 531 Notice u/s 91 Crpc dt. 31.10.2017
Ex. PW 14/C D35 627 Cash deposit Slip of Rs. 3 Lakhs dt. 22.11.2016
Ex. PW 14/D D36 633 Cash deposit Slip of Rs. 11,83,000/ dt. 23.11.2016
Ex. PW 14/E D37 757 Cash deposit Slip of Rs. 49,000/ dt. 24.11.2016
Ex. PW 14/F D39 835 Certificate of u/s 2 (A) of banker book of evidence Act
1891
Ex. PW 14/G D39 837 Certificate u/s 65B of Indian evidence Act 1872
Ex. PW 14/H D40 839 Notice u/s 91 Crpc. dt. 31.10.2017
Ex. PW 14/I D41 841 UPM details of accused Jeetander Veer Arora from
10.11.2016 to 31.12.2016
Ex. PW 14/J D42 843 Modification report of UPM from 10.11.2016 to
30.12.2016
Ex. PW 14/L D43 845 Certificate u/s 65B of Indian evidence Act 1872
Ex. PW 14/K D43 847 Certificate of u/s 2 (A) of banker book of evidence Act
1891
Ex. PW 15/A D53 1761 Latter dt.21.03.2018 of BNP
Ex. PW 16/A Charge Sanction Order
sheet
C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN)
CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03
RACC: New Delhi : 22.08.2019
Page no............ 24/92
Ex. PW 16/B Charge Sanction Order
sheet
Ex. PW 19/A D51 1685 Specimen signature of Rama Nand Gupta
Ex. PW 19/B D49 1685 Specimen signature of Rajender Singh
Ex. PW 18/A D50 1693 Specimen signature of Jeetander Veer Arora
Ex. PW 18/B D52 1741 Specimen signature of Tahir Rehman
Ex. PW 20/A D44 849 Letter dt. 17.02.2017 of CBI
Ex. PW 20/B D45 863 Report No. CFSL 2017/D1176/4555 dt. 30.11.2017
Ex. PW 20/C D45 861 Report No. CFSL 2017/D1176/4555 dt. 08.12.2017
Ex. PW 20/D D48 1643 Application for leave of Accused Jeetander veer Arora
from dt. 17.03.2003 to 22.03.2003
Ex. PW 20/E D48 1645 Sanctioned of Leave of Accused Jeetander veer Arora
from dt. 17.03.2003 to 22.03.2003
Ex. PW 20/F D47 1097 Admitted signatures and writings of accused R.N. Gupta
Ex. PW 21/A D1 11 FIR
Ex. PW 21/B D30 525 Handing/Taking over Memo dt. 13.10.2017
40. On 27.03.2019, statement of all the accused u/s 313 CrPC recorded separately. Accused Rama Nand Gupta and Bhuvnesh Kumar Julka stated that they are innocent and had not committed any offence and had been falsely implicated in the present case.
41. It is stated by the accused persons Rama Nand Gupta and Bhunvesh Kumar Julka that as usual practice, the job profile / work class of any official is modified under the verbal instructions of competent authority i.e. Head of the Branch and the said modification of work class, if any, is not required to be mentioned in the arrangement register. It is further stated by the accused persons that it is to be done in User Profile Maintenance Menu (UPM) in CBS by two DBA (Data Base Administrator) holders, and the same is accessible to the Senior Officials including Head of the branch and data base administrator is empowered to make changes in work profile of officials of bank. It is further stated by the accused C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 25/92 persons that the said UPM report from CBS system is to be generated ensuring that there is no unauthorised modification therein and that is the reason that the same is to be checked at the branch level by the senior officers on the daily basis.
42. It is further stated by the accused Rama Nand Gupta and Bhunvesh Kumar that as far as the responsibility of the posting officer is concerned, who received the cash and the official who posted the amount are different from the responsibility to check the denomination of the cash with the denomination mentioned in the cash deposit voucher and to enter the correct denomination in the CBS system, lies with the cash recipient official and the posting officer has only to check the correctness of the name, account no, and the amount mentioned on the cash deposit voucher only.
43. It is further stated by the accused persons Rama Nand Gupta and Bhunvesh Kumar Julka that as far as the responsibility of the checking officer is concerned, the verification of the entry was being done by 'TM' menu and in the 'TM' menu the details of notes deposited were not being shown, as such, the checking official was not in a position to verify the details of the notes entered in the system by the cash receipt official and the verifying official is not responsible for verifying the voucher without checking the cash denomination mentioned on the cash deposit voucher. Accused persons stated that they did not wish to lead any evidence in their defence.
44. In his statement recorded u/s 313 Cr.PC, it is stated by the accused no.3 Jeetender Veer Arora that the prosecution witnesses were not aware that the actual cash of legal tenders denominations C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 26/92 was not less than what was reflected by the cash vouchers or cash slips. It is stated by the accused no.3 Jeetander Veer Arora that it is case where on the basis of mistakes attributable to human weakness during rush hour, the authorities jumped to the conclusion that there may have been shortage of legal tender cash and in hurriedly they reached at the conclusion that the actual legal tenders cash was not even compared with the cash slips/cash vouchers, but the record speaks that there was no such shortage of legal tenders cash.
45. It is further stated by the accused no.3 Jeetander Veer Arora that the present case has resulted because of anxiety triggered in the officers of the bank after media reports over TV channels and the investigating officer did not have any expertise to understand that actual cash stock ought to have been checked to ascertain, if there was any shortage in the stock of cash of legal tenders denomination as on 23.11.2016. Accused Jeetender Veer Arora also does not wish to lead any evidence in his defence.
46. I have heard arguments of Shri Praneet Sharma, Ld. Sr. PP for CBI, Ms. Vandana and Shri Samundra Sain, Ld. Counsels for accused no.1 Rama Nand Gupta and accused no.2 Bhuvnesh Kumar Julka and Shri Bharat Bhushan, Ld. Counsel for accused no.3 Jeetander Veer Arora. Accused persons and Ld. Sr. PP for CBI have also filed written arguments.
ARGUMENTS ON BEHALF OF PROSECUTION :
47. Ld. Senior PP for CBI in his written arguments has argued that PW21 Sh.Arjun Singh has proved that the FIR dated 06.04.2017 Ex. PW21/A was registered against the accused persons C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 27/92 on the bank complaint dated 05.04.2017 as Ex. PW13/1. It is further argued by Ld Senior PP for CBI that PW13 Shri Rajender Kumar Bansal has proved that in 2016, he was working as Dy. Circle Head in the Punjab National Bank, New Delhi and had made a complaint dated 05.04.2017 Ex. PW13/1 (part of D1) to Superintendent of Police, CBI, ACB, New Delhi on the basis of which FIR as Ex. PW13/3 (D1) was registered. It is further argued by Ld. Senior PP for CBI that the said complaint was approved by Shri S K Nagpal, the then Chief Vigilance Officer of the bank and PW13 further proved that on 20.12.2016, some irregularities in SBNs were observed through TV Channels and the same were reported in the Civil Lines Branch of Punjab National Bank, Delhi and on the basis of said report, an internal investigation was carried out by the bank and during this investigation, some transaction in the said branch were not found as per the guidelines of demonetization scheme which has been mentioned in his complaint Ex. PW13/3 (D1) and investigation report is Ex. PW6/A (D29) which was prepared by PW6 Sh.V.M.Upadhaya, the then Deputy General Manager.
48. It is further argued by Ld. Sr. PP for CBI that PW5 Shri Ashit Kumar Jain and PW16 Shri V.P. Jain have proved that accused Rama Nand Gupta was working as Sr. Manager, accused Bhuvnesh Kumar Julka was working as Deputy Manager and accused Jeetander Veer Arora was working as Head Cashier - II in Punjab National Bank, Civil Lines Branch, Delhi during the period November 2016. It is argued on behalf of CBI by Ld. Sr. PP for CBI that it is proved by PW7 Shri Anil Kasliwal, AGM, PNB, Civil Lines Branch, New Delhi that the Data Base Administration has defined C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 28/92 roles as per guidelines of the bank and that the directions/instructions issued by the DBA regarding change of work class could be in written or oral and if it is in oral, it has subsequently to be converted into written instructions and such instructions are recorded in the arrangement register Ex. PW5/R (D34) of the branch.
49. It is further argued by Ld. Sr. PP for CBI that PW5 Shri Ashit Kumar Jain has proved that the circular of RBI Ex. PW5/G (D6) in relation to demonetization was issued and bank guidelines dated 11.11.2016 Ex. PW5/H (D7) in this regard were issued by the bank vide GBD circular No. 123/2016 Ex. PW5/K (D10). It is further argued by Ld. Sr. PP for CBI that PW5 has also proved that the RBI guidelines Ex. PW5/G pertains to withdrawal of legal tender character of existing Rs. 1,000/ and Rs. 500/ (old) currency notes and circular was addressed to Chairman/Managing Director/Chief Executive Officers of all public sector banks, private sector banks, foreign banks, regional rural banks, urban cooperative banks, state cooperative banks. It is further proved by PW5 Sh.Asit Kumar Jain that CASHDEP menu was used for entering details of the customers depositing cash of denomination of Rs.1,000/ and Rs. 500/ alongwith other denominations in the CBS system and also during the demonetization period, this menu was used to record the withdrawn legal tender details and the responsibility to feed the detail was of front line staff and the details of denomination of currency were to be filled as tendered by the customer.
50. It is also argued by Ld. Sr. PP for CBI that PW13 Shri C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 29/92 Rajender Kumar Bansal has proved that maker and checker is to be followed to avoid any error in entering the data/details mentioned in the transaction and every transaction is culminated when the verification is done by authorized officer and as per the para 25.B.4 2 of the circular Ex. PW5/Q (D26) 'Run TV' option to verify the residual transaction made by CTO B within his vested power. It is also argued by Ld. Sr. PP for CBI that PW13 also proved that all the officials / officers in the bank has their own user ID and password followed with the biometric identification and no official/officer can use the user ID and password of other officers / official of the bank.
51. It is further argued by Ld. Sr. PP for CBI that as per para 3.7 of Bank Circular Ex. PW9/I (D27), the transaction posted by SWO (Single Window Operator) within their vested power have to be verified by the another official, otherwise system would not allow day end and thus, 'TV' option is used by the bank official to verify the transaction which was earlier posted by SWO within his vested power. It is further argued by Ld. Sr. PP for CBI that PW9 Shri Nitin Patodi has proved that as per circular Ex. PW9/I (D27) and Inspection and Audit Division Circular Ex. PW5/Q (D26), the passing power of Head Cashier in respect of cash of receipt is Rs.25,000/ until unless it is manually enhanced by the Data Base Power Holder of the branch in maker and checker concept in the CBS system and thereafter, power of head cashier enhanced value from 025 (Head Cashier) to 050 (Asstt. Manager) and the same is also reflected in Audit File Report Ex. PW5/N (D22). It is further argued by Ld. Sr. PP for CBI that accordingly accused Jeetander Veer Arora, Head Cashier, Punjab National Bank, Civil Lines, Delhi C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 30/92 had entered the cash transaction in the CBS system through CASHDEP MENU which were posted through 'TM' Menu (Transaction Maintenance Menu) and the same was used by accused Rama Nand Gupta, Sr. Manager to post one of amount of Rs.1,51,000/ in the TM menu, the denomination of the cash amount is not visible.
52. It is further argued by Ld. Sr. PP for CBI that PW13 Shri Rajender Kumar Bansal has proved that as per guidelines mentioned in para 26.7 at page no. 1617 of circular Ex. PW5/Q (D26), Head Cashier has power to pass cash vouchers upto Rs. 50,000/ jointly with an authorized persons and no transaction shall be entered and passed by same officer.
53. In the oral as well as written arguments the thrust of the prosecution is that all the three accused persons in furtherance of their criminal conspiracy made a false entry in the bank accounts of two firms namely M/s. Shri Shyam Sales Corporation and M/s. Moon Enterprises regarding deposit of Rs. 9,00,000/ and 1,51,000/ respectively as SBN (Specified Bank Notes i.e banned currency) whereas the employee of the concerned company has deposited the legal tender notes of different denomination. Accordingly, the accused persons are charged with section 120 B IPC and substantive offences u/s 409 , 477A & 471 IPC and section 13(2) read with section 13(1)(d) of the P.C.Act,1988.
ARGUMENTS ON BEHALF OF DEFENCE
54. Accused no.1 and 2 in their written arguments has argued that there was no illegality in enhancing powers of accused no.3 C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 31/92 Jeetander Veer Arora in the CBS system on the verbal instructions of the competent authority in order to meet the exigencies arisen out of demonetization at the branch; it has to be done in User Profile Maintenance (UPM) in CBS by two DBA (Data Base Administrator) holders, and the same is accessible to the Senior Officials including Head of the Branch. It is further submitted that said enhanced power of accused no.3 Jeetander Veer Arora is still in continuation and has not been withdrawn.
55. Regarding the responsibility of the posting officer, it is stated that if the official who received the cash and the official who posted the amount are different then the responsibility to check the denomination of the cash with the denomination mentioned in the cash deposit voucher and to enter the correct denomination in the CBS system, lies with the cash recipient official and the Posting Officer has only to check the correctness of the name, account number and the amount mentioned on the cash deposit voucher. It is further argued that the verification of the entry was being done by "TM" menu and in the "TM" menu the details of NonSBNs deposited were not being shown and as such, the checking official was not in a position to verify the details of the notes entered in the system by the cash recipient official.
56. It is further argued that there was no loss occurred to the bank or any individual and the amount of the legal tenders (non SBN) was increasing on 23.11.2016 and accused persons have not got any benefit for the alleged false entries and case of the prosecution is not proved against them.
57. It is argued on behalf of the accused no.3 Jeetander Veer C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 32/92 Arora that the entire case of the prosecution is based on conjecture and surmises as the investigating officer has assumed that legal tender notes have been exchanged without finding if the cash stock with the bank has been affected accordingly or not. Nothing is worked out in the investigation by the CBI if the wrong entries were accompanied by any actual unauthorized exchange of SBNs with legal tender and resultant loss. It is further argued that there is no pecuniary advantage or valuable thing obtained by all or any of the accused persons as per investigation of the IO which has been admitted in crossexamination of PW21. Even PW9 Nitin Patodi Senior Manager, PNB Vigilance Department, Head office in his crossexamination admitted that no financial loss has been caused pertaining to the present case either to the bank or to the individual.
58. It is further argued that there was inadvertent mistake due to the huge rush of increased routine workload due to demonetization of currency notes of Rs. 500/ and Rs. 1000/ denominations. It is further argued that if the cash stock had been checked, the denomination of notes as reflected in the vouchers would have matched with the physical stock of notes and therefore mere entries in the CBS system not tallied with the details of currency on vouchers cannot and does not show that any currency was exchanged unauthorizedly. It is further argued that prosecution has not proved any unauthorized exchange of currency notes or any loss to the bank or exchequer.
59. Lastly, it is argued that sanction for prosecution so granted was without application of mind and case of prosecution is liable to be dismissed.
C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 33/92
60. Now, I proceed to discuss the charge section wise in order to find out whether the prosecution has been successful in establishing its case against the accused persons beyond reasonable doubt?
Charge of criminal conspiracy under section 120B IPC
61. In order to establish the criminal conspiracy by the accused persons prosecution should prove:
(i) that the accused agreed to do or caused to be done an act.
(ii) that such act was illegal and was to be done by illegal means.
(iii) that some over tact was done by one of the accused in pursuance of the agreement.
62. In K.R. Purushothaman vs. State of Kerala [(2005)12 SC 631], it was held as under:
"11. Section 120A of I.P.C. defines 'criminal conspiracy.' According to this Section when two or more persons agree to do, or cause to be done (I) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designed a criminal conspiracy."
63. In "Major E.G. Barsay v. State of Bombay", (1962) 2 SCR 195, Subba Rao J., speaking for the Court has said:
"The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act, C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 34/92 It may comprise the commission of a number of acts."xxx xxx xxx"
64. Above proposition is reiterated in "Sudhir Shantilal Mehta Vs. CBI" (2009) 8 SCC in Criminal Appeal no. 905 of 2005.
65. Thus like most times the criminal conspiracy requires an act (actaserius) and an accompanying mental state (mens rea). The agreement constitutes the act, and the intention to achieve the unlawful objective of that agreement constitute the required mental state. All conspirators are collectively or individually liable for crimes committed by any of the member of conspiracy. Thus, for an offence punishable under section 120B IPC, the prosecution need not necessarily prove that the propagators expressly agreed to do or caused to be done an illegal act; the agreement may be proved by necessary implications.
66. All the accused persons have been charged being public servants of criminal conspiracy to commit criminal breach of trust and falsification of accounts on the basis of false entries in CBS system and in pursuance of said criminal conspiracy, accused A3 Jeetander Veer Arora allegedly created a false entry in the CBS system in respect of deposit of Rs. 1,51,000/ by M/s. Moon Enterprises and a deposit of Rs. 9,00,000/ by M/s. Shri Shyam Sales. The amounts mentioned above were deposited by these two clients of PNB in legal tender currency notes of different denominations and the said amount by this alleged false entry has been shown to be SBN (Specified bank notes i.e demonitzed currency) in the denomination of Rs. 1,000 and Rs.500/. It is C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 35/92 further alleged that accused no.1 and Accused no.2 being the supervisory officers of Accused no.3 while verifiying the said entry did not check the aforesaid transactions/false entries dishonestly and deliberately in gross violation of the bank circulars and thus by abusing their official position or by corrupt and illegal means through aforesaid act exchanged the legal tendered currency to the tune of Rs. 10,51,000/ with specified bank notes (SBN) and caused wrongful gain to either themselves or to any other unknown persons.
67. Apparently there is no direct evidence of the alleged criminal conspiracy between the accused persons and the case of the prosecution is based on circumstantial evidence. In order to establish charge of criminal conspiracy through circumstantial evidence it is incumbent upon the prosecution to establish by cogent and sufficient evidence, each and every incriminating circumstance to complete the chain of circumstances.
68. The prosecution has proved and it is an admitted fact that a false entry was made by Accused no.3 Jeetander Veer Arora regarding deposit of SBN of Rs. 1000/ and Rs. 500/ to the tune of Rs. 10,51,000/ whereas the said amount was deposited in the legal tender in different denominations.
69. The defence taken by the accused persons regarding these false entries by accused no.3 Jeetander Veer Arora and non detection from verification of the same by the supervisory officers (Accused no.1 and Accused no.2) is that there was a huge rush due to demonetization and various entries were made regarding sealing of SBN notes and as a bonafide mistake due to human error Accused C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 36/92 no.3 Jeetandra Veer Arora made entry of deposit of legal tender by two clients as deposit of SBN notes. It has also been argued that if there had been wrongful and fraudulent intention of the accused persons, the legal tender currency amount would have been reduced to the tune of Rs. 10,51,000/. It is argued that there was no such loss/reduction of the legal tender currency during the relevant period on 23.11.2016 which shows that against these said fictitious entry, the legal tender so deposited has not been withdrawn from the cash in hand in the bank by the accused persons. Ld. Defence counsel argued that the investigating officer (I.O) in his cross examination by the accused persons has admitted that during the demonetization period in the year 2016 there was lot of work pressure on the bank employees and large number of persons used to come to the bank for deposits/withdrawal/ exchange of currency notes and there used to be long queue for the said purpose. He further admitted that in order to meet exigencies arising out of demonetization, the bank administration used to frequently modify the financial powers of the bank employees.
70. Another incriminating substance in the form of circumstantial evidence to prove the conspiracy of the accused persons, the prosecution has put forth that there was no record maintained in the power register wherein the power of accused no.3 was increased on the alleged date from Rs. 25,000/ to Rs.50,000/.
71. PW5 Sh. Ashit Kumar Jain, Officer of PNB has deposed that after seeing the audit file entries Ex.PW5/N, work class shows that key value 51738JVA has been modified from work class old value 025 to work class new value 050 on 23.11.2016. He further C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 37/92 deposed that work class has to be modified under written instructions and if it is done generally in the case of staff shortage at the branch level then it should be mentioned in the arrangement register. On seeing Ex.PW5/R (page no. 10 to page no. 34 to D34) the witness stated that there is no instructions mentioned in the arrangement register for date 23.11.2016.
72. It has been argued on behalf of accused Bhuvnesh Kumar Julka and Rama Nand Gupta that there had been no conspiracy to enhance the power of accused no.3 Jeetander Veer Arora, Head Cashier on 23.11.2016 because due to exigencies arisen out of demonetization at the branch the said power was enhanced in the CBS system on the verbal instructions of the competent authority i.e. Head of the Branch. It is further argued that the said modification of the work class/power is not required to be mentioned in the arrangement register. It is further argued that the enhanced power of Accused no.3 was still continuing and neither the senior officials of the branch nor the concurrent auditor available at the branch had ever detected or objected the said enhancement of power of Accused no.3 as irregularity. Regarding the responsibility of posting officer i.e. Accused no.3 is concerned it is again argued that there is no element of conspiracy established by the prosecution against the official who received the cash and the official who posted the amount are different then the responsibility to check the denomination of cash with the denomination mentioned in the cash deposit voucher and to enter the correct denomination in the CBS system lies with the cash recipient official and the posting officer had only to check the correctness of the C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 38/92 name of the account number and the amount mentioned on the cash deposit voucher only. It is further explained in the written arguments that the verification of the entry was to be done in "TM" menu and in the "TM" menu the details of NonSBNs (legal tenders or notes other than Rs. 500/ and Rs. 1000/) deposited were not being shown, as such, the checking official was not in a position to verify the details of the notes entered in the system by the cash recipient official and therefore, the verifying official is not responsible for verifying the voucher without checking the cash deposit denomination mentioned on the cash deposit voucher.
73. The Ld. Sr. PP on the other hand argued that the denomination of the notes entered into the system by Accused no.3 Jeetander Veer Arora was visible on the screen of the verifying officer accused no.2 Bhuvnesh Kumar Julka and he deliberately did not verify the false entry of SBN currency as 900 notes of Rs. 1,000 denomination instead of 9000 notes of Rs. 100 denomination of legal tender deposited by Shri Shyam Sales Corporation in the Core Banking System (CBS). The Ld. Sr. PP further pointed out that in the screen shot of the transaction no. M1065597 Ex.PW5/B it is shown that at page 3 of the said screen that the entry and posting was made by accused Jeetander Veer Arora and verified by accused Bhuvnesh Kumar Julka. It is therefore argued that from the evidence it is very much clear that the accused did not verify the denomination of the legal tender notes in CASHDEP menu deliberately on account of criminal conspiracy with accused Jeetander Veer Arora who had made the false entry of the said amount. The Ld. Sr. PP further argued that it stands established C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 39/92 from the evidence that transaction of M/s. Moon Enterprises for deposit of Rs. 1,51,000/ in cash through PW2 vide voucher Ex.PW1/B (D32) the entry was posted by accused Rama Nand Gupta and he also did not deliberately verify the denomination of legal tender currency deposited by PW2 on behalf of M/s. Moon Enterprises as the said deposit of the amount has been shown as SBNs by Accused no.3 Jeetander Veer Arora. The said entry was done by Jeetander Veer Arora illegally and in violation of guidelines as contemplated in the circular no. 14/2012 dated 27.01.2012. It was responsibility of the cashier to enter the correct details of the currency notes in CBS system as per above circular and the verifying officers accused no.1 Rama Nand Gupta and accused no. 2 Bhuvnesh Kumar Julka were responsible for verifying the correct posting and entry of the said denomination by Accused no.3 Jeetander Veer Arora. Since accused no.1 Rama Nand Gupta and Accused no.2 Bhuvnesh Kumar Julka have dishonestly failed to correctly verify the said entry made by Accused no.3 Jeetander Veer Arora and as such the amount of Rs. 10,51,000 deposited as legal tender has been unauthorizedly exchanged for SBNs of the same amount. The explanation in defence of the accused persons to the effect that there was no criminal conspiracy is not tenable because the evidence on record sufficiently established that a false entry as stated above was done by Accused no.3 (Jeetander veer Arora) while acting in conspiracy with Accused no.1 Rama Nand Gupta and Accused no.2 Bhuvnesh Kumar Julka who deliberately did not verify the said entry of SBN instead of legal tender currency having been deposited. The entire chain of incriminating circumstances in that C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 40/92 regard stands established to prove the criminal conspiracy by the accused persons wherein Accused no.3 Jeetander Veer Arora has made a false entry of Rs. 10,51,000/ as SBN instead of legal tender currency deposited by M/s. Shri Shyam Sales Corporation and M/s. Moon Enterprises. The accused no.1 and accused no.2 who were responsible to verify the entry made by accused no.3 dishonestly did not correct and verify the said false entry as all the three accused person were in hand and glove with each other and has done so in pursuance of criminal conspiracy between them. Prosecution has successfully established the charge under section 120B IPC.
74. Charge under section 409 IPC : "Section 409IPC envisages as under: Criminal breach of trust by public servant, or by banker, merchant or agent.--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
75. In State of Punjab Vs. Pritam Chand & Ors. (2009) 16 SCC 769, the Hon'ble Apex Court has held as under:
4. Section 406 IPC deals with punishment for criminal breach of trust. In a case under Section 406 the prosecution is required to prove that the accused was entrusted with property or he had dominion over the property and that the accused C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 41/92 misappropriated or converted the property to his own use or used or disposed of the property or willfully suffered any person to dispose of the property dishonestly or in violation of any direction of law prescribing the mode in which the entrusted property should be dealt with or any legal contract express or implied which he had entered into relating to carrying out of the trust.
5. Criminal breach of trust is defined in Section 405 IPC. The ingredients of offence under Section 405 are (i) entrusting any person with property or with dominion over the property, (ii) the person entrusted (a) dishonestly misappropriated or converted to his own use the property or (b) dishonestly used or disposed of the property or willfully suffered any other person so to do in violation (i) of any direction of law prescribing mode in which such mode is to be discharged or
(ii) of any legal contract made touching the discharge of trust."
76. In Ram Narain Popli Vs. CBI [AIR 2003 SC 2748] Hon'ble Apex Court held as under:
"Section 409 deals with criminal breach of trust by public servant or by banker, merchant or agent. Section 405 defines criminal breach of trust. The offence like the offence of criminal misappropriation is characterized by an actual fraudulent appropriation of property. There is not originally wrongful taking or moving as in the case of theft but the offence consists in wrongful appropriation of property, consequent upon a possession which is lawful. The offence is distinguishable from criminal misappropriation because subject of it is not the property which by some casual act or otherwise, but without criminal means, comes into the offender's possession; but the property which is entrusted to the offender by the C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 42/92 owner or by others lawful authority and which the offender holds subject to some duty or obligation to apply it according to the trust.Sections 407 to 409 make special provisions for various cases in which property is entrusted to the enumerated categories of persons who commit the offence. The offence of breach of trust and dishonest misappropriation are sufficient to constitute an offence under the relevant provisions.
To constitute an offence of criminal breach of trust, there must be an entrustment, there must be misappropriation or conversion to one's own use, or use in violation of a legal direction or of any legal contract; and the misappropriation or conversion or disposal must be with a dishonest intention. When a person allows others to misappropriate the money entrusted to him that amounts to a criminal appropriation of trust as defined by Section 405. The section relatable to property in a positive part and a negative part. The positive part deals with criminal misappropriation or conversion of the property and the negative part consists of dishonestly using or disposing of the property in violation of any direction and of law or any contract touching the discharge of trust.
In Jaswantrai Manilal Akhaney v.
The State of Bombay, AIR (1956) SC 575), it was held that if the Managing Director of the Bank entrusted with securities owned by the pledgor disposes of their securities against the stipulated terms of the contract entered into by the parties with an intent to cause wrongful loss to the pledgor and wrongful gain to the Bank there can be no question but that the Managing Director has necessarily mens rea required by Section 405.
The term 'entrustment' is not necessarily a term of law. It may have different implications in different context. In its most general signification C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 43/92 all it imports is the handing over possession for some purpose which may not imply the conferring of any proprietary right at all.
When a person misappropriates to his own use the property that does not belong to him, the misappropriation is dishonest even though there was an intention to restore it at some future point of time.
As noted by this Court in Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay, AIR (1960) SC 889), to establish the charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted if proved may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion."
77. To establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 44/92 misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made.
78. In the present case it is established from the evidence led by prosecution that legal tender notes of Rs. 10,51,000/ were deposited on 23.11.2016 meaning thereby the said amount was entrusted to the accused persons or they have dominion over the same but the said amount had not been shown at the appropriate place and had been shown to be bad currency i.e. SBNs and posted as such by making a false entry by accused no.3 Jeetander Veer Arora in pursuance of criminal conspiracy with accused no.1 Rama Nand Gupta and accused no. 2 Bhuvnesh Kumar Julka and the said currency had been unauthorizedly exchanged against the SBN of the same amount, therefore, all ingredients of offence under section 409 IPC read with section 120B IPC stands established against the accused persons.
79. The present case is covered within the four corners of Jai Krishnadas Manohardasdesai and Anr. (Supra) because there was duty cast upon accused persons to account for the said legal tender amount of Rs. 10,51,000/ which they have been unable to account or render an explanation for their failure to account and as such necessary inference to be drawn is misappropriation of the said amount with dishonest intention on the part of the accused C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 45/92 persons. Charges under section 409 IPC read with section 120B IPC stands proved beyond reasonable doubt.
80. Charge under section 471 IPC : "Section 471 IPC envisages:
Using as genuine a forged [document or electronic record.--Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]."
81. Section 470 IPC defines forged document as a "false document" as described in section 464 IPC may fully or in part by forgery is a forged document. When a forged document was dishonestly or fraudulently used as a genuine document then an offence under section 471 IPC can be said to have been committed.
"Section 464 defines a false documents as under:
464 Making a false document. -- [A person is said to make a false document or false electronic record-- First --Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any [electronic signature] on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the [electronic signature], C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 46/92 with the intention of causing it to be believed that such document or part of document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly --Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly --Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.]"
82. What constitutes forgery for the purpose of the Code has been very elaborately defined in section 463 IPC with clear emphasis on mensrea. Merely making a false document uncoupled with the intent therein set out, neither dishonestly nor fraudulently, would not constitute forgery within the meaning of the word in the Code.
83. The offence of forgery is defined in sections 463 IPC and 464 IPC. The two sections have to be read and construed together for deciding whether a person has committed the offence. The C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 47/92 actusreus is making a false document, the mensrea, under the first section may be any one of the following
(i) intent to cause damage or injury to the public or to any person;
(ii) intent to support any claim or title;
(iii) intent to cause any person to part with property;
(iv) intent to cause any person to enter into a contract;
(v) intent to commit fraud;
(vi) intent that fraud may be committed;
84. A person is said to have made a false document if he had altered or tempered with a document. There is further requirement that document should have been made with the intention of causing to be believed that such document was made/executed by or by the authority of the person, by whom or by whose authority he needs that it was not made or executed.
85. Mere alteration of document does not make it forged document. The alteration must be for some gain or some object. The prosecution is thus required to prove the offence under Section 471 IPC against accused persons that the false entries in the banking books which were done by Accused no.3 Jeetander Veer Arora were made with an intention for some gain or some object.
86. In the evidence led by the prosecution it stands established that false entry in the banking books and the CBS System had been made by Accused no.3 Jeetander Veer Arora in conspiracy with Accused no.1 Rama Nand Gupta and Accused no.2 Bhuvnesh Kumar Julka with an intention for some gain and legal tender amount of Rs. 10,51,000/ has been unauthorizedly exchanged as SBN notes C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 48/92 by making this false entry and the accused persons have failed to account for the said amount of false entry of Rs. 10,51,000/ as SBN notes in the banking system. The accused persons in furtherance of their criminal conspiracy has used the said forged entry in the CBS system to be genuine thus bringing their case within the four corners of section 471 IPC.
Charge u/s 477A IPC
87. In "S.Harnam Singh Vs. The State (Delhi Admn.)" AIR 1976 SC 2140 it was held as under:
12. Section 477A Indian Penal Code reads thus:
Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant wilfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or wilfully and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such book, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Explanation : It shall be sufficient in any charge under this section to allege a general intent to defraud without naming any particular person intended to be defrauded or specifying any particular sum of money intended to be the C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 49/92 subject of the fraud, or any particular day on which the offence was committed.
13. An analysis of this section would show that in order to bring home an offence under this provision, the prosecution has to establish (1) that at the relevant time, the accused was a clerk, officer or servant; and (2) that acting in that capacity he destroyed, altered, mutilated or falsified any book, paper, writing, valuable security or account which belonged to or is in the possession of his employer or has been received by him for and on behalf of his employer etc. (3) that he did so willfully and with intent to defraud.
18. "Wilfully" as used in Section 477A means "intentionally" or "deliberately." There can be no difficulty in holding that these entries were made by the appellant wilfully. The appellant must have been aware that the Divisional Superintendent had by an order prohibited the booking of this class of goods via Barabanki from and on January 11, 1967. But from the mere fact that these entries were made wilfully.
It does not necessarily follow that he did so "with intent to defraud" within the meaning of Section 477A, Penal Code. The Code does not contain any precise and specific definition of the words "intent to defraud." However, it has been settled by a catena of authorities that "intent to defraud" contains two elements viz., deceit and injury. A person is said to deceive another when by practising "suggestio falsi" or "suppressioveri" or both he intentionally induces another to believe a thing to be true, which he knows to be false or does not believe to be true. Injury has been defined in Section 44 of the Code as denoting "any harm whatever illegally caused to any person, in body, mind, C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 50/92 reputation or property."
88. While relying upon this judgment of the Hon'ble Supreme Court the Hon'ble Andhra Pradesh High Court in Kandipally Madhavarao Vs. State of Andhra Pradesh 2007 Law Suit(AP) 484 in paras 6 and 7 has held as under:
6. The principles laid down by the Supreme Court are that there should be a wilful act of an accused with an intention to defraud. So both elements must be present and in other words it would mean that the act should be a wilful act and should also be done with an intention to defraud. While trying to define "intent to defraud", the Court noted that it contains two elements, deceit and injury.
7. There is no doubt that to convict a person under Section 477A IPC, the prosecution has to prove that there was a wilful act, which had been made with an intent to defraud and while proving "Intention to defraud" the prosecution has to further prove two elements that the act was an act to deceit and it had caused an injury.
In the present case, there may be an injury, but there is no deceit."
89. Thus, in order to prove the charge under section 477A IPC, it is incumbent upon the prosecution to establish by cogent and sufficient evidence that the act of accused persons by making a false/forged entry of the electronic record in CBS system was an act to deceit and it had caused an injury.
90. In order to prove the said charge the prosecution has highly relied upon the testimonies of PW5 Sh. Ashit Kumar Jain, PW6 C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 51/92 Sh.V.M. Upadhyay, PW9 Sh.Nitin Patodi, PW13 Sh. Rajender Kumar Bansal and PW14 Sh. Phool Singh.
91. Regarding the false entries by accused no.3 Jeetander Veer Arora the testimony of PW9 Sh. Nitin Patodi is quite relevant. He deposed that during investigation they had checked daily legal tender payment and receipt, exchange of SBN currency with legal tender, all cash entries mentioned in Cash Book of the branch extracted from Core Banking Solution (CBS). He further deposed that during demonetization scheme of Government of India, as per RBI guidelines SBN currency notes were deposited and exchanged at schedule bank branches and Punjab National Bank had issued new CBS menu option "CASHDEP" for deposit of cash at its branches and the SBN currency notes was to be deposited only through this menu and bank official required to enter denomination of each tendered currency note in relevant denomination column. He further deposed that the cash deposit vouchers were scrutinized, specially the cash deposited in legal tender and same were checked with CBS system to check whether correct denomination were entered or not in the system. During enquiry, two cash vouchers dated 23.11.2016 for the account of M/s. Shri Shyam Sales Corporation as Ex.PW3/F as well as M/s. Moon Enterprises as Ex.PW1/B were checked. He further deposed that regarding the account of M/s. Shri Shyam Sales Corporation transaction no. M 1065597 in CBS System, the voucher shows that the depositor has deposited 9000 notes in denomination of Rs. 100/ i.e. 100 x 9000 = 9,00,000/ whereas accused no.3 Jeetander Veer Arora has entered and posted in CBS menu 900 notes in denomination of C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 52/92 Rs.1,000/ i.e. Rs. 100 x 9000 = 9,00,000/; the branch official has entered the banned currency notes in place of legal tender deposited by the customer which is in violation of extant Bank / RBI guidelines and this transaction was verified by accused Bhuvnesh Kumar Julka, the then Deputy Manager.
92. PW9 Nitin Patodi further deposed that cash deposit voucher dated 23.11.2016 of M/s. Moon Enterprises with respect to account no. 0115002100058348 Ex.PW1/B and the certified screen shot of said transaction no. M173437 in CBS System and the voucher deposited by the depositor shows that depositor had deposited Rs. 2,000/ x 3, Rs. 100/ x 950, Rs. 50/ x 280, Rs. 20/ x 300 and Rs. 10 x 3000, Total of Rs. 1,51,000/ whereas accused no.3 Jeetander Veer Arora Head Cashier has entered in denomination of Rs. 1,000 x 51 and Rs. 500/ x 200, total of Rs. 1,51,000/. The branch official had entered the banned currency notes in place of legal tender deposited by the customer which is in violation of extant Bank/RBI guidelines and this transaction was verified by accused Rama Nand Gupta.
93. PW9 further deposed that as per para 3.7 the Bank Circular no. 39/2011 dated 16.07.2011 Ex.PW9/1 the transaction posted by SWO (Single Window Operator) within their vested power have to be verified by the another official, otherwise system would not allow day end. Thus, "TV" option is used by the bank official to verify the transaction which was earlier posted by SWO (Single Window Operator) within his vested power.
94. PW9 further deposed that as per Inspection and Audit Division Circular No. 14/2012 dated 27.01.2012 Ex.PW5/Q the C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 53/92 passing power of Head Cashier in respect of cash of receipt is Rs. 25,000/ until unless it is manually enhanced by the Data Base power Holder of the branch in maker and checker concept in the CBS system and after doing so, power of Head Cashier enhanced value from 025 (Head Cashier) to 050 (Assistant Manager) and the same is also reflected in Audit File Report as Ex.PW5/N. He further deposed that in maker and checker concept, no transaction is entered and passed by the same officer and accordingly accused no.3 Jeetander Veer Arora, Head Cashier, PNB, Civil Lines, Delhi had entered the cash transaction in the CBS system through CASHDEP MENU which were posted through TM menu (Transaction Maintenance Menu) and the same was used by accused Rama Nand Gupta, Sr. Manager to post one of amount of Rs. 1,51,000/ in the TM menu, the denomination of the cash amount is not visible.
95. PW13 Sh. Rajender Kumar Bansal is the complainant who had made the complaint on 05.04.2017 to CBI Ex.PW13/1. He has also proved the investigation report Ex.PW6/A because the said investigation was done on the basis of his complaint. He further deposed that accused no. 3 Jeetander Veer Arora who was posted as Head Cashier in PNB, Civil Lines, Delhi, as per the guidelines, has the power to pass cash vouchers upto Rs. 50,000/ jointly with an authorized person as mentioned in para 26.7 at page 1617 of circular Ex.PW5/Q; as per this circular, no transaction shall be entered and passed by same officer i.e. principle of maker and checker is to be followed.
96. PW14 Sh. Phool Singh had joined PNB, Civil Lines C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 54/92 Branchin July 2017 as Chief Manager. He deposed that there was no entry made in the arrangement register Ex.PW14/B (colly.) regarding the arrangement made on 23.11.2016 in respect to Sh. Jeetander Veer Arora, the then Head Cashier i.e. enhancement of work profile from 025 (Head Cashier) to 050 (Assistant Manager) as per the Audit File report Ex.PW5/N. In his crossexamination he admitted that while being posted in the accounts section, mistakes do happen at times. He further stated that while making entries from the vouchers, if a mistake takes place, the same can be corrected later on while checking.
97. In the complaint dated 05.07.2017 Sh. Rajender Kumar Bansal has stated as under:
"On perusal of Internal Investigation report, it is observed that false records have been created in the computer / CBS of the bank contrary to the original physical vouchers filled by depositors on two occasions. The depositors had deposited cash in legal tender namely Rs. 100, Rs. 50, Rs. 10, Rs.5, Rs. 2, Re. 1 notes/coins as per denomination mentioned in the cash voucher whereas it has been posted in the computers / CBS as if the SBN notes of Rs. 1000 and Rs. 500 have been deposited. In this manner exchange of SBN notes of Rs. 10,51,000/ with legal tender has taken place. Thus the aforesaid act indicates towards creation of false records."
98. Thus, it is specifically alleged in the complaint dated 05.04.2017 as Ex. PW13/1 on the basis of which present FIR was registered that SBN of Rs.10,51,000/ has been exchanged with legal tender and the aforesaid act indicates creation of false C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 55/92 report. This observation in the complaint is based on internal investigation report as Ex.PW6/A (D29).
99. I have examined the said investigation report as Ex PW6/A to find out the basis of said allegation in the complaint. Para 2 of the investigation report is relevant in this case and is reproduced as under:
"2. On scrutinizing the cash voucher between 10.11.2015 and 24.11.2015, it is observed that there were instances that depositor has deposited cash in legal tender (Rs. 100,50,10,5,2,1 notes /coin) as per denomination mentioned in cash voucher, whereas branch official has entered the cash in CASHDEP menu in denomination of SBN note (Rs. 1000 and Rs. 500). The details are as under:
Sl. Date of Trans ID Account Denominatio Denomina Cash Received Entered by Posted by No Deposit Name and n of currency tion of by Number as per Cash currency voucher and as per amount CBS
1. 23.11.2016 M106559 Shri Shyam 100* 1000 * 51738/VA 51738/VA 51738/VA 7 Sales 9000 900 Sh.Jeetander Vir Sh.Jeetander Sh.Jeetander Vir Corporation Arora Vir Arora, Arora, 0115002100 Head CashierII Head Cashier Head CashierII 062101 II
2. 23.11.2016 M173437 M/s. Moon 2000*3100*9 1000*515 51738/VA 51738/VA 47529RNGDB Enterprises 5050* 00*200 Sh.Jeetander Vir Sh.Jeetander Shri Ram Nand A/c: 28020* Arora, Vir Arora, Gupta, 0115002100 30010*3000 Head CashierII Head Cashier Sr. Manager 058348 II In view of the foregoing, exchange of SBN note with legal tender by the bank officials has taken place. The copy of cash voucher and CBS Screen Shot of Sr. 1 are given in AnnexureB1 and B2 and of Sr.2 are given in AnnexureB3 and B4."
100. It is thus reiterated in the investigation report that in view of the false entry mentioned in the above table, exchange of Specified Bank Notes (SBN) with legal tender by the bank official C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 56/92 has taken place. In his crossexamination PW6 has deposed that the receipt of total SBNs in the record of the bank as written in the voucher and the total SBNs with the bank on that date did not tally with the receipt of SBNs; it implies that legal currency was exchanged against SBNs but these SBNs were not accounted for.
101. In that regard Ld. Sr. PP for CBI has submitted that during demonetization drive the currency in denomination Rs. 500/ and Rs.1,000/ were demonetized and they were declared as nonlegal tender. The public was to deposit the currency in above denomination in the bank. Above said denomination currency was to be deposited at banks with a valid ID proof. The PNB has devised a Menu option for deposit of Rs. 500/ and Rs. 1,000/ notes (hence forth they will be called as SBN) in the CBS system which was "CASHDEP". The bank officials, who were receiving SBN from general public has to enter the details through this menu option. The CASHDEP menu has three rows one for entering details of Rs.1,000/ notes, second one for entering details of Rs.500/ notes and other for entering details of other denomination (legal tenders).
102. It is further submitted by Ld. Sr. PP that in the instant case, Jeetander Veer Arora (accused no.3), Head Cashier received legal tender of Rs. 9 lakhs (Rs. 100 X 9000) on 23.11.2016 from M/s. Sh. Shyam Sales Corporation which was entered by him in the CBS system as SBN notes (Rs. 1000 X 900). The second instance of the same day was that Jeetander Veer Arora (accused no.3), Head Cashier received legal tender of Rs. 1.51 lakhs (Rs. 2000 X 3, Rs. 100 X 950, Rs.50 X 280, Rs.20 X 300 and Rs. 10 X 3000) on 23.11.2016 from M/s. Moon Enterprises which was entered by him C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 57/92 in the CBS system as SBN notes (Rs. 1000 X 51 and Rs.500 X 200).
103. It is further submitted by Ld. Sr. PP that due to result of the above acts and omissions, the SBNs were exchanged at this stage illegally and in violation of the guidelines / circulars of the RBI as well as Punjab National bank. The legal tender notes were not deposited in the bank and they were exchanged for SBNs to benefit the unknown persons for the reasons best known to the accused persons and SBNs were shown deposited falsely in the bank by making a forged entry, and the same were not tallying with the account books physically.
104. It is further submitted by Ld. Sr. PP that from the perusal of the bank's internal investigation report Ex.PW6/A (D29) it is very much clear that after the announcement of demonetization i.e. from 09.11.2016 and till 23.11.2016 there were shortage of approximately Rs. 60 lakhs of legal tender currency notes in the bank branch, Civil Lines, New Delhi continuously as depicted from the figure "519238" for the date 09.11.2016 and "6054254" for the date 23.11.2016 as mentioned in the chart AnnexureA1 of investigation report as Ex. PW6/A under the heading "G". The minus figure depicts that there is a shortage of legal tender GC notes in the said bank branch. Further the internal investigation report enumerates further three instances in which the accused persons have acted in the same manner and violated RBI's circular and guidelines .
105. It is further submitted by Ld. Sr. PP that these acts and omissions of the accused persons cannot be termed as bonafide mistake committed by them in entering / feeding the details of C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 58/92 currency notes in the CBS System of the bank as there are other instances also as mentioned in report Ex.PW6/A (D29). The Ld. Sr. PP also submitted that the accused persons have been punished in Departmental Inquiry for their acts and omissions as mentioned above.
106. An intention to defraud has to be inferred from the conduct of the accused and must necessarily involve something in the nature of cheating. (AIR 1935 Bom 162).
107. In law of Crimes a Commentary on the Indian Penal Code, 1860 by Rattan Lal and Dhiraj Lal 27 th Edition page 78 it is stated as under:
"A general intention to defraud, without the intention of causing wrongful gain to one person or wrongful loss to another, would be sufficient to support a conviction. In order to prove an intention to defraud it is not at all necessary that there should have been some person defrauded or who might possibly have been defrauded. A man may have an intention to defraud and yet there may not be any person who could be defrauded by his act".
108. It has been argued on behalf of accused persons that the alleged false entry made by Jeetander Veer Arora (accused no.3) was neither intentional or deliberate nor has resulted into any injury to the bank and further there is no evidence that any wrongful gain has been caused by the accused persons from the said false entry or some wrongful loss caused to the bank. Though Ld Defence Counsel highly relied upon the crossexamination of the Investigating Officer who has stated that no loss was caused to the C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 59/92 bank, yet the Investigating Officer in reply to the court question stated as under:
"Court Question: In what manner all the three accused persons had abused their position and how? Kindly specify the relevant departmental rules or directions of the Government which have been allegedly violated?
Ans. The accused had manipulated and falsified the record by making incorrect entries with regard to the details of the currency notes in two accounts one of M/s. Shri Shyam Sales and another M/s. Moon Enterprises who are both witnesses before this court. In so far as the relevant provisions are concerned there is a violation of a circular issued by the PNB dated 10.11.2016 which is Ex.PW5/K (D10) and circular of PNB dated 27.01.2012 which Ex.PW5/Q (D26)."
109. Further PW6 Sh. V.M. Upadhyay, Deputy Manager of Punjab National Bank at Zonal Audit Office, Faridabad has deposed that during his investigation it has to be checked whether the specified bank notes (SBN) were properly accounted for in the branch or not. He has proved his report Ex.PW6/A (colly.) Further, in examinationinchief he deposed that the receipt of total SBNs in the record of the bank as written on the voucher and the total SBNs with the bank on that day did not tally with the receipt of SBNs. It implies that legal currency was exchanged against SBNs but these SBNs were not accounted for. No suggestion was given to the witness that the report Ex.PW6/A (D29 Annexure A1) was not correct and the same has not been questioned in any manner by the accused persons. The accused persons has not denied the existence C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 60/92 and correctness of the said report even in reply to the Q.No. 31 in the statement of accused under section 313 Cr.P.C when the said report Ex.PW6/A was put to them. On perusal of the said admitted report, the genuineness and correctness of which is not disputed by the accused persons, para 2 of the investigation report is relevant in this case and is reproduced as under:
"2. On scrutinizing the cash voucher between 10.11.2015 and 24.11.2015, it is observed that there were instances that depositor has deposit cash in legal tender (Rs. 100,50,10,5,2,1 notes /coin) as per denomination mentioned in cash voucher, whereas branch official has entered the cash in CASHDEP menu in denomination of SBN note (Rs. 1000 and Rs. 500). The details ar as under:
Sl. Date of Trans ID Account Denomination Denomination Cash Entered by Posted by No Deposit Name and of currency as of currency as Received Number per Cash per CBS by voucher and amount
1. 23.11.2016 M1065597 Shri Shyam 100* 1000 x 900 51738/V 51738/VA 51738/V Sales 9000 A Shri Shri A Shri Corporation Jeetander Jeetander Jeetander 011500210 Vir Arora Vir Arora, Vir Arora, 0062101 Head Head Head CashierII CashierII CashierII
2. 23.11.2016 M173437 M/s. Moon 2000* 1000* 51738/V 51738/VA 47529RNGD Enterprises 3100* 5150 * A Shri Shri B Shri Ram A/c: 95050* 200 Jeetander Jeetander Nand Gupta, 011500210 28020* Vir Arora, Vir Arora, Sr. Manager 0058348 30010* Head Head 3000 CashierII CashierII In view of the foregoing, exchange of SBN note with legal tender by the bank officials has taken place. The copy of cash voucher and CBS Screen Shot of Sr. 1 are given in AnnexureB1 and B2 and of Sr.2 are given in AnnexureB3 and B4."
110. Nothing was suggested to this witness or any other witness that there was no exchange of SBN notes with the legal tender by C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 61/92 the bank officials on account of false entry made on 23.11.2016 with respect to the deposit of legal tender by M/s. Shri Shyam Sales Corporation i.e. Rs.9000/ notes of Rs. 100/ denomination which was posted by this entry as 900 notes of 1000 denomination (SBNs) and regarding deposit of M/s. Moon Enterprises a sum of 1.51 lakhs (Rs. 2000 X 3, Rs. 100 X 950, Rs.50 X 280, Rs.20 X 300 and Rs. 10 X 3000) and the said notes were posted by this entry as SBNs (Rs. 1000 X 51 and Rs.500 X 200).
111. Further, it is argued on behalf of accused persons that in the Departmental Inquiry the charges of unauthorized exchange of SBN notes with legal tender has not been proved and the charge of wrong entry and posting in the CBS system has only been proved for which minor penalty was imposed by the competent authority upon accused no.3 Jeetander Veer Arora in the form of punishment of stoppage of one increment without cumulative effect. Accused persons has placed on record the copy of the inquiry report along with order of sentence by the Disciplinary Authority. During final arguments which has been given document number as under: Inquiry report of accused no.1 as D55.
Inquiry report of accused no.2 as D56.
Inquiry report of accused no.3 as D57.
112. In order to understand the charges and allegations against the accused persons more lucidly, the inquiry report of accused no.3 Jeetander Veer Arora i.e D57, the relevant charge for the wrong entry on 23.11.2016 (Charge no.2), Submission of the Presenting Officer, Version of the defence side and findings of the C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 62/92 Enquiry Officer is reproduced as under:
"Charge2 On scrutinizing the cash voucher between 10.11.2016 and 24.11.2016, it is observed that there were instances that depositor has deposited cash in legal tender (Rs. 100, 50, 10, 5, 2, 1 notes/coins) as per denomination mentioned in cash voucher, whereas the cash is entered in CASHDEP menu in denomination of SBN note (Rs. 1000 and Rs.
500). The details are as under:
S. Date of Trans ID Account Name Denominatio Denominat Cash Entered Posted by
no Deposit and Number n of ion of Received by
currency as currency as by
per Cash per CBS
Voucher and
Amount
1 23.11.2016 M1065597 Shri Shyam 100*9000 1000*900 51738JVA 51738J 51738JV
Sales Jeetander VA A
Corporation Vir Arora, Jeetande Jeetander
0115002100 Head r Vir Vir Arora,
062101 CashierII Arora, Head
Head CashierII
Cashier
II
2 23.11.2016 M173437 M/s Moon 2000*3 1000*51 51738JVA 51738J 47529RN
Enterprises 100*950 500*200 Jeetander VA G DB Shri
A/c: 50*280 Vir Arora, Jeetande Ram
0115002100 20*300 Head r Vir Nand
058348 10*3000 CashierII Arora, Gupta,
Head Sr.
Cashier Manager.
II
In view of the foregoing, SBN Note have been unauthorizedly replaced/exchanged with legal tender.
SUBMISSION OF THE PRESENTING OFFICER IN RESPECT OF CHARGE1(2) PO's submissions.
Kindly refer to Ex. ME10/1 which is the Cash Deposit Slip dated 23.11.2016 of account no.
0115002100058348 of M/s Moon Enterprises for Rs. 1,51,000/ kindly peruse the same and look that the cash details filled up and deposited by the customer is C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 63/92 of denomination of Rs. 2000/, Rs. 100/ Rs. 50/, Rs. 20/ and Rs. 10/. Further kindly peruse Ex. ME10/2 which i.e the screen shot of the account wherein the system cash details filled up are Rs. 1000X51 and Rs.500X200 which means that the legal tenders were unauthorized exchanged with SBNs. Further kindly see Ex. ME10/4 and ME10/5 that reveals that the said TM was entered with the user ID of 51738JVA which is the ID of Sh. Jeetander Veer Arora. Thus the difference of Rs.1000/ and Rs. 500/ denomination was created for which the CSE is responsible.
Refer to Ex. ME9/1 Cash Deposit Slip dated 23.11.2016 for Rs. 9,00,000/ of M/s Shri Shyam Sales Corporation TM no. M1065597 A/C no.
0115002100062101 wherein the cash denomination deposited by the customer was Rs. 100 X 9000. Again peruse ME9/2 the screen shot of the account wherein the denomination entered in the system is Rs. 1000X900. Thus the difference of Rs.1000/ and Rs. 500/ denomination was created for which the CSE is responsible. (kindly refer Ex. ME9/4 and ME9/5). Kindly also refer to defense Ex. DE1/3 to DE1/6 item no. 54.2 and 54.3 and item no. 56 wherein the concurrent auditor has pointed out the irregularity/lapses being committed at the branch.
Thus the charge that there were instances that the depositor deposited cash in legal tenders (Rs. 100/, Rs.50/ Rs.10/, Rs.5/, Rs.2/ & Rs.1/ notes/coins as per denominations mentioned in the cash deposit slip whereas in the cashdep menu denomination of SBN's notes Rs. 1000/ and Rs.500/ were entered and verified, is proved.
VERSION OF THE DEFENCE SIDE: The CSE argued in his written brief as under:
Regarding the voucher of Rs. 1,51,000/, I wish to state that after receiving the cash, I sent the voucher to some staff members for entering in the system but the voucher got misplaced. Hence , a duplicate voucher was C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 64/92 prepared assuming that 51 notes of Rs. 1,000/ and 200 notes of Rs. 500/ were received. When the actual voucher was found, the same was replaced in place of the duplicate one. Transaction number was copied on the original voucher by Shri R.N.Gupta. It was a bona fide mistake. The duplicate voucher was entered in the system by me and was posted by Sh. R.N.Gupta.
Regarding the voucher of Rs. 9,00,000/ I wish to state that this voucher was entered in the system as SBN due to oversight. But on the above stated date, there is no shortage of legal tender currency, even after considering the amount of the two aforementioned vouchers as legal tender.
On 22.11.2016, as per the calculations in the chargesheet, there was a shortage of legal tender currency by Rs. 86,30,577/ and on 23.11.2016 it was reduced by nearly Rs. 1,27,000/ to Rs. 85,01,354/. Calculation is given hereunder:
Currency in SBN on 22.11.16 71,42,38,500/ Total cash received on 23.11.2016 33,51,16,323/ Less legal tender from currency chest 1,35,00,000/ Less cash received in legal tender from 1,20,57,823/ customer Add cash received in SBN through exchange 7,68,000/ Less remitted to currency chest in SBN 39,00,50,000/ SBN should be 63,45,15,000/ SBN on day end on 23.11.2016 63,43,88,000/ Increase in legal tender 1,27,000/ The same calculation has been given in the chart under charge 1 of the chargesheet.
Coming to the relevant date of 23.11.2016, difference shown in the SBN as per the chargesheet is of Rs. ()60,54,254/ while it was Rs. ()61,82,077/ on the previous day, which means on 23.11.2016 the difference in legal currency got reduced. This shows more legal currency C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 65/92 on stock than on the record. This means instead of there being shortage of legal currency , it was actually in surplus.
The charge says that in two vouchers of Rs. 9,00,000/ and Rs. 1,51,000/ the legal currency of Rs. 10,51,000/ was erroneously shown as SBN, I.e 951 of 1000 and 200 of 500 denomination. Assuming that this Rs. 10,51,000/ of legal currency from the customers was replaced by SBN, then in that case the stock of legal currency would not have increased on 23.11.2016 over and above of 22.11.2016.
CPOS function gives difference in the position of SBN of Rs. 500 and Rs. 1000 denomination. On 23112016, it shows no difference in the currency of Rs. 1000 denomination while the charge against me shows 951 notes having been replaced. The CPOS shows that it is not correct to say that I have replaced legal currency by SBN of Rs. 1000 denomination.
It is submitted with due respect that because of the rush during those days, bonafide mistakes took place which require effort to tally to come to the real position. In the support of the above argument, I am giving another calculation hereunder.
As per C.POS Cash remitted the currency Chest on 23.11.2016 Cash Remitted Rs. 500 x 291300 = 14,56,50,000/ (Refer ME4/13 dated 23.112016) Rs.1000 x 246159 + 24,61,59,000 (Refer ME4/13 dated 23112016) Total = 39,18,09,000/ Actual remitted to currency chest = 39,00,50,000/ Diffference =17,59,000/ (Details of 39,00,50,000/ please refer to ME11 dated 23112016) M8193 Rs. 11,83,00,000/ M1984725 Rs. 10,00,00,000/ M1997232 Rs. 17,17,50,000/ Amount shown in others1223 X 500 = 6,11,500 C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 66/92 Voucher of legal tender posted as SBN = 1,51,000/ Voucher of legal tender posted as SBN = 9,00,000 Total = 16,62,500/ Therefore, the difference of 17,59,000 - 16,62,500 = 96500/ which again substantiate that there was no shortage of legal tender.
EO FINDINGS Charge 2 Account no.1 M/s. Shree Shyam Sales Corporation PO submission based on ME09/1 Cash deposit slip dated 23.11.2016 of Rs. 9,00,000/ and ME09/2, screen shot of TM (M1065597). On examination of these vouchers and on examination of ME09/4 & ME09/5, I have gathered that the entry of Rs. 9.00 lacs in the account of M/s. Shyam Sales Corporation has been entered and posted by 51738JVA and verified by 111332BJK. It is clear from the vouchers and screen shot of the system for the voucher that the said voucher has been entered and posted by JV Arora. Cash receipt voucher reveals that legal currency was deposited by the customer whereas screen shot of the voucher reveals entering and posting of SBN by Sh. J. V. Arora, the CSE. Further, CSE in his written brief has stated that the voucher of rs. 9,00,000/ was entered in the system as SBN due to oversight. Account no. 2 M/s. Moon Enterprises PO submission based on ME10/1, Cash deposit slip of dated 23.11.2016 of Rs. 1,51,000/ & ME10/2, screen shot of TM (M173433). On examination of these vouchers and on examination of ME10/4 & 10/5, I have gathered that the entry of Rs.1.51 lacs in the account of M/s. Moon Enterprises has been entered by 51738JVA and posted and verified by 47529RNGDB. Further, CSE has accepted through his written brief that this was bona fide mistake.
Further, CSE through his written brief has taken plea that there is no shortage of legal tender currency even after considering the amount of the two aforementioned vouchers as legal tender is not tenable since charge relates particularly to entering of SBN in place of legal currency.
C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 67/92 After taking into consideration practice and guidelines of posting of vouchers, I am of the view that in normal circumstances CSE submission is acceptable but in special circumstance of demonetization, it was the duty to the CSE while entering and posting of Cash receipt voucher to ensure that correct denomination of notes have been fed in the system. However, PO has failed to produce substantial evidence to probe that SBN notes have been unauthorizedly exchanged while entering and posting of these transactions.
I, as such hold the charge as 'Proved' for wrong entering and posting in the system but it is not probed that SBN has been unauthorizedly exchange through wrong posting of these transactions. Hence, I hold the charge as "Partially proved".
113. It is evident from the findings of the Inquiry Officer that the Department through Presenting Officer has not led any evidence to prove the charges against the Delinquent Employee / Accused no.3 Jeetander Veer Arora and other accused persons. Nothing is explained as to why the evidence ocular as well as documentary was not produced against the Delinquent Employees in the departmental inquiry.
114. The accused persons highly relied in their submissions that on 23.11.2016 difference shown in the SBN as per charge sheet is Rs. () 60,54,254 while it was Rs. () 61,82,077/ on the previous day, which means on 23.11.2016, the difference in the legal currency got reduced which shows more legal currency on stock than on the record. This means instead of there being shortage of legal currency, it was actually in surplus. These arguments are hypothetical and it was not necessary for the accused persons to C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 68/92 exchange legal tender in view of posting of SBN by the alleged false entry on the same day and the said exchange might have taken place on some other day also which stands proved from the evidence that the difference shown in the SBN was in minus during the period investigated by PW6 which shows that the SBN were unaccounted for as legal currencies had been exchanged against them between 09.11.2016 and 23.11.2016.
115. Accused no.1 Rama Nand Gupta has been punished by the competent disciplinary authority by imposing major penalty of "Reduction to lower grade i.e. from MMG Scale III to MMG Scale II"
as they found him guilty on the charge that during the demonetization period between 10.11.2016 to 30.12.2016 there was deficit of legal currency with the branch and excess of SBNs, the position of legal tender notes and SBNs was not properly maintained and on one occasion the Branch cash was closed with huge shortage, in contravention of Bank's guidelines and for the same Sh. Gupta as custodian of cash is directly responsible. It further stands proved from the deposition of PW5 Sh. Ashit Kumar Jain that the entry of the transaction of M/s. Shri Shyam Sales Corporation was done by Accused no.3 Jeetander Veer Arora working as cashier and he has also posted the said entry which was verified by accused no.2 Bhuvnesh Kumar Julka and the entries in this respect were reflected in statement of account PW5/A part of D 5 whereas an entry of transaction of M/s. Moon Enterprises was made by Accused no. 3 Jeetander Veer Arora and it was verified by accused no.1 Rama Nand Gupta.
116. PW9 Sh. Nitin Patodi has also deposed that accused no.3 C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 69/92 Jeetander Veer Arora Head Cashier had entered and posted in CBS menu 900 notes in denomination of Rs. 1000/ ie. 100 X 9000 = 9,00,000/. It was proved that Branch Official had entered the banned currency notes in place of legal tender deposited by the customer which is in violation of extant Bank / RBI guidelines and this transaction was verified by accused no.2 Bhuvnesh Kumar Julka, the then Deputy Manager. PW9 also further proved that as per cash deposit voucher dated 23.11.2016 of M/s. Moon Enterprises the depositor had deposited 2000/ X 3, Rs. 100/ X 950, Rs. 50 X 280, Rs. 20 X 300 and Rs. 10 X 3000. Total of Rs. 1,51,000/ whereas accused A3 Head Cashier has entered in denomination of Rs. 1000/ X 51 and Rs. 500/ X 200 total of Rs. 1,51,000/ in CBS system. PW9 has further proved that the branch officials had entered the banned currency notes in place of legal tender deposited by the customer which is in violation of extant Bank / RBI guidelines and this transaction was verified by accused no.1 Rama Nand Gupta.
117. Regarding enhancement of power of Accused no.3 Jitender Veer Arora, it is argued by accused no. 2 Bhuvnesh Kumar Julka and Accusedn no. 1 Rama Nand Gupta that the power was enhanced on 23.11.2016 in CBS system on the verbal instructions of the competent authority i.e. Head of the Branch in order to meet the exigencies arisen out of demonetization at the Branch. It is further argued that during the period of demonetization power of three employees namely, Jeetander Veer Arora (accused no.3), Ms. Pinki and Ms. Anita Oberoi was modified on 23.11.2016, 13.12.2016 and 22.12.2016 respectively and there is no entry made in the C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 70/92 arrangement register about any of these modifications. However, there is no explanation as to why such entries of modifications are not made in the arrangement register. It is argued on behalf of the prosecution by Ld. Sr. PP for CBI that since all the three accused persons acted in furtherance of their criminal conspiracy, the power of A3 was orally modified without mentioning the same in the arrangement register so as to avoid the said fact coming to the knowledge of the higher authorities.
118. Regarding the responsibility of the higher officers while verification of the entry it is argued by the accused persons that the verification of the entry was being done by "TM" menu and in the "TM" menu the details of NonSBNs (Legal Tenders or Notes other than Rs. 500/ and Rs. 1,000/) deposited were not being shown, as such, the checking official was not in a position to verify the details of the notes entered in the CBS system. It is therefore submitted that verifying officer is not able to verify the voucher without checking the cash denomination mentioned on the cash deposit voucher. It is further argued that amount of legal tender (Non SBNs) are increasing on 23.11.2016 which shows that there was no exchange of SBNs against the legal tender currency notes and admittedly there was no loss to any individual as such the case of the prosecution against the accused persons is not proved as there is nothing to show that the accused persons had entered into any criminal conspiracy to cause wrongful gain to themselves or wrongful loss to any other person and for that purpose they had made false entry with an intention to deceit and further that no injury was caused and also there was no evidence of deceit on their C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 71/92 behalf and charges under section 477A read with section 120B IPC are not established.
119. Reliance has been placed by the accused persons upon the case of "Prof. N.K. Ganguly Vs. CBI New Delhi" 2015 Law Suit (SC) 1134 and S. Harnam Singh vs. State 1976 Law Suit(SC) 125.
120. However, the finding recorded in the case of Chothmal Naraynji Vs. Ramchandra Govindram, 1054 CriLJ 788 of Madhya Pradesh High Court are relevant to the controversy in the present matter. It is held in this case as under:
"The complainant Chothmal who is a landlord filed a complaint under Section 467, I. P. O. against his tenant Ramchandra that the latter had submitted an application to the Indore Electric Supply Authorities in the name of the complainant and purporting to bear the signature of his son Manakchand stating that the said complainant had no objection to the grant of electric connection in the premises of the tenant. This application was in fact not signed by his son Manakchand but his signature was forged by the accused.
In this complaint the trying Magistrate passed order under 8. 363, Criminal P. C. discharging the accused holding that even if all the facts stated by the complainant be assumed it cannot be said that an offence under Section 465, I. P. C. is committed by the mere fact of making a false document.
This view was confirmed by the learned Second Additional Sessions Judge, Indore. The complainant has therefore preferred this revision application.
In the revision before the Hon'ble High Court it was held in para 10 as under:
C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 72/92 "Stephen in his History of Criminal Law of England Volume II p. 121 says thus:
I shall not attempt to construct a definition which will meet every case which might be suggested but there is little danger in saying that whenever the words "fraud" or "intent to defraud" or "fraudulently" occur in the definition of a crime two elements at least are essential to the commission of the crime: namely, first, deceit or an intention to deceive or in some cases mere secrecy; and, secondly, either actual injury or possible injury or an intent to expose some person either to actual injury or to a risk of possible injury by means of that deceit or secrecy. This intent, I may add, is very seldom the only or the principal intention entertained by the fraudulent person, whose principal object in nearly every case is his own advantage. The injurious deception is usually intended only as a means to an end, though this, as I have already explained, does not prevent it from being intentional.
In para 16 it was further held that " The expression "intent to defraud" implies conduct coupled with intention to deceive and thereby to injure, in other words, "defraud" involves two conceptions namely, deceit and injury to the person deceived, that is, infringement of some legal right possessed by him, but not necessarily deprivation of property.
In this case a reference was made to an earlier Full Bench case of Calcutta High Court reported in '25 Cal 512 (C)', wherein it was held that 'deprivation of property, actual or intended is not an essential element in the offence of fraudulently using a document which the accused knew or had reason to believe to be false.
On giving anxious thought to the matter C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 73/92 I feel that having regard to the definition of the word 'fraudulently' the exposition of that term by Sir James Stephen appears to be preferable viz. that there must be (1) deception actual or intended (2) and injury or risk of injury though not to any particular person. In practice an act is said to have been done fraudulently where there is injurious deception resulting in some advantage to the doer of a secular character.
Applying this to the facts of this case it is plain that the accused is said to have concocted an application indicating complainant's consent for fixing electric connection in his premises. This the department would not have done in the absence of socalled forged letter. It may be said that the alleged act indicates deception but the question is does it indicate legal injury or risk of legal injury. The view taken by the courts below is that the deception may result in securing an advantage for the accused but will cause injury or risk of injury to no one. Electric Department will get lawful charges for the electricity consumed from the accused. Nor will there be any legal injury to the landlord because of the connection fixed in his house.
This view suffers from this defect that it assumes that there is no injury or risk of injury to Electric Department. It would be startling if a person were legally permitted to forge a document in the name of another and secure an advantage and yet commit no offence. Though apparently no injury or loss to the Electric Department is discernible it is certain that in making rule of practice which requires a consent of the owner of premises the Department intended to save them from risk of obstruction or unnecessary litigation with the unwilling owner which may result in some injury. Therefore element of injury or risk of C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 74/92 injury is present in this case too.
The considerations that a tenant would be paying for the electricity consumed and the landlord will not materially suffer if an electric connection which is an ordinary modern amenity is fixed in the leased portion of his house are those that may affect the sentence. But not the criminality of the act.
For these reasons I set aside the order and send back the case for trial and disposal according to law."
121. In view of the evidence on record and undisputed investigation report Ex.PW6/A, I am of the considered opinion that there is no substance in the arguments on behalf of the accused persons that the prosecution has failed to prove that the falsification of the record and the making of the false entry on 23.11.2016 was done with an intention to defraud because there is no element of deceit and injury proved as admittedly no loss was caused to the bank and no wrongful gain to anyone because of that wrong entry.
122. Admittedly the said entry was made in violation of the RBI guidelines and various rules and regulations of the bank circular GBD CIRCULAR NO: 123/2016 dated 10.11.2016 (Ex.PW5/K, (D
10)). It is not that only one such entry was made by the accused because as is evident from the investigation report Ex.PW6/A that all the accused persons have violated the RBI guidelines and circular of the bank on various occasions during the investigation period between 09.11.2016 and till 23.11.2016. During the said period of investigation there is decrease in the legal tender currency and C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 75/92 excess of SBNs of the same amount. Though apparently there is no injury or loss to the bank but the element of injury and possible deceit on the part of the accused persons is there because it is categorically stated in the investigation report Ex.PW6/A that the SBNs for a huge amount were unaccounted for on 23.11.2016. The legal tender currency has been exchanged against the said amount though it may or may not have been done on 23.11.2016 but on any other date and possibility of which is not ruled out in these facts and circumstances of the case.
123. It was argued by the Ld. defence counsel for Accused no.3 Jeetander Veer Arora that two vouchers of Rs. 9,00,000/ and Rs.1,51,000/ of legal currency totaling Rs. 10,51,000/ was erroneously shown as SBN i.e. 951 notes of Rs. 1,000/ denomination and 200 notes of Rs. 500/ denomination. It is argued that assuming this Rs. 10,51,000/ of legal currency was replaced by SBNs and in that case the stock of legal currency would not be increased on 23.11.2016 over and above 22.11.2016 by Rs.1,27,000/. To this argument of ld. Defence counsel, ld. Sr. PP has argued that if it is admitted case of the accused then the legal currency would not be increased on 23.11.2016 only by Rs.1,27,000/ but it should have been increased by Rs. 10,51,000/. Since it is not increased to that extent which confirms that there is unauthorized exchange of SBNs against these legal currency deposited by M/s Shri Shyam Sales Corporation and M/s Moon Enterprises on 23.11.2016. The arguments of Ld Sr. PP in that regard is more convincing and logical.
124. The evidence on record is sufficient to establish that the C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 76/92 accused persons has created the false entry on 23.11.2016 by entering sum of Rs. 9,00,000/ and Rs. 1,51,000/ respectively by mentioning the said amount as SBNs whereas the legal tender currency was deposited by those two customers of the bank. The above analysis shows that the element of deceit as well as risk of injury stands proved so as to bring the case of accused persons within the four corners of section 477A IPC to the effect that falsification of accounts was done willfully with an intention to defraud. Since the false entry was done by accused no.3 Jeetander Veer Arora which was verified by Accused no.2 Bhuvnesh Kumar Julka and Accused no.1 Rama Nand Gupta and power of Accused no.3 Jeetander Veer Arora was enhanced by Accused no.1 Rama Nand Gupta without mentioning the same in the arrangement register and for the deposition of prosecution witnesses and in view of unchallenged investigation report Ex.PW6/A and the complaint Ex.PW13/1, it stands established that all the accused persons were in hand and gloves with each other and acted in furtherance of criminal conspiracy for falsification of accounts with an intention to defraud.
125. Charge under section 13(1)(d) & 13(2) of the PC Act, 1988: Section 13 of the P.C Act, 1988 envisages:
"13. Criminal misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct,
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 77/92 other than legal remuneration as a motive or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income Explanation.For the purposes of this section, C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 78/92 "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
Ingredients of Offence:
The ingredients of the offence can be stated to be (1) the accused must be a public servant at the time of the offence.
(2) he must have used
(i) corrupt or illegal means and obtained for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
126. The impugned action of public servant in obtaining any valuable things or pecuniary advantage in the manner mentioned above need not necessarily to be connected for the performance of his official duties and even if he as a public servant obtains some pecuniary advantage for himself by using his position as public servant, he would come within the purview of Section 13(1)(d) of the Act. Reliance can be placed on State of Kerala Vs. M. T. Anandan, AIR 1998 SC 673 .
127. The dishonest intention is the gist of offence under Section C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 79/92 13(1)(d) of the PC Act which is implicit in the words used i.e. corrupt and illegal means and abuse of his position as public servant. In case there is total absence of element of dishonest intention, then the offence is not to have been proved. Reliance has been placed on C.K. Jaffer Sharief Vs. State (thr. CBI) (1963) Supp. (2) SCR 724 in Criminal Appeal No. 1804 of 2012
128. I have analyzed the evidence led by the prosecution to find out whether necessary ingredients of offence under section 13(1)(d) read with section 13(2) of the P.C Act, 1988 has been established.
129. The defence taken by the accused persons regarding the false entry is that due to huge rush of public and because of bonafide mistake due to human error the said false entry was made. However, on perusal of the investigation report as Ex.PW6/A, it is found that it is not only one instance but many instances by these officials regarding false entries of similar nature in other cases also. Moreover, there is nothing on record to show that there was huge rush of public which interfered in the working of the bank officials because no such complaint has been made by the accused persons to the higher authority or to the local police etc to show that there was huge rush of public which resulted into interference of their work. The false entry in the CBS system therefore is not a mere simple mistake but a deliberate, dishonest and conscious act of misconduct by accused persons i.e public servants to falsify the accounts/records of the bank with an intent to defraud.
130. PW21 Sh. Arjun Singh during his crossexamination admitted that during entire investigation relating to exchange of currency notes which took place during the demonetization period, C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 80/92 no investigations relating to the beneficiaries of the said exchange was made and that he cannot tell as to who was the beneficiary of the exchange of currency notes which were under scrutiny in the present case. He further admitted in cross examination that he did not investigate the aspect regarding the increase or decrease of the legal currency other than Rs. 100 and Rs. 1000 during the relevant period on day to day basis and hence he cannot tell whether during that period the other legal currency increased or decreased. In reply to the court question, he admitted that there was a departmental enquiry against all the three accused persons but he had not collected the details of the enquiry and hence he cannot tell about the outcome of the same.
131. In crossexamination by Ld. Counsel for Accused no.3 Jeetander Veer Arora, PW21 admitted that there was no currency loss to the bank during the period and he had not carried out any investigations qua the alleged beneficiaries. He categorically admitted that the alleged beneficiaries are not the accused before this court. He further categorically admitted that all the three accused persons facing trial had not drawn any personal financial benefits as per the investigations.
132. He was further put court question by the court and the reply of PW21 to the court question is reproduced as under:
Court Question:In what manner all the three accused persons had abused their position and how? Kindly specify the relevant departmental rules or directions of the Government which have been allegedly violated?
C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 81/92 Ans. The accused had manipulated and falsified the record by making incorrect entries with regard to the details of the currency notes in two accounts one of M/s. Shri Shyam Sale and Anr. M/s. Moon Enterprises who are both witnesses before this court. In so far as the relevant provisions are concerned there is a violation of a circular issued by the PNB dated 10.11.2016 which is Ex.PW5/K (D10) and circular of PNB dated 27.01.2012 which is Ex.PW5/Q (D26).
133. It already stands established by sufficient evidence led by the prosecution that accused persons in pursuance of criminal conspiracy falsified the accounts by making a false entry of Rs.10,51,000/ as SBNs whereas legal currency was deposited by two customers. From the evidence of PW6 and other witnesses the unauthorized exchange of legal tender currency against the SBNs stands proved and no question was put in their crossexamination and the investigation report Ex.PW6/A has not been challenged by the accused persons as no question was put in crossexamination regarding the correctness of the said report. Therefore, it stands established that by adopting corrupt and illegal means accused persons have made a false entry in the form of showing legal tender currency of Rs. 10,51,000/ as SBN and they have thus abused their position as public servants.
SANCTION
134. It is argued on behalf of the accused persons that the C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 82/92 sanctioning authority Mr. R.R. Dhar had deposed that only police report was placed on record to obtain sanction for prosecution against Jeetander Veer Arora (accused no.3) and the application of the prosecution under Section 311 of the Cr.P.C. to recall the said officer for reexamination was dismissed. It is further argued that law has been settled in CBI Vs. Ashok Aggarwal in Criminal Appeal No. 1838 of 2013 decided on 31.10.2013 that in every individual case, the prosecution has to establish and satisfy the court by leading evidence that all the facts were placed before the sanctioning authority and the authority had applied its mind on the same. It is argued that except the FIR no other material was placed before the Sanctioning Authority and the Sanctioning Authority has not applied its mind before granting the sanction.
135. Reliance has been placed on Prof. N.K.Ganguly Vs. CBI New Delhi 2015 Law Suit (SC) 1134 where it is held that by a catena of decisions, it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. It is further held that a grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecutions and the aforesaid requirements must therefore, be strictly complied with before any prosecution could be launched against public servants.
136. It was further argued that sanction had been granted under the P.C Act and no sanction under section 197 of the Cr.P.C. has C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 83/92 been granted by sanctioning authority and as such the case of the prosecution is not established and Accused no.3 Jeetander Veer Arora is liable for acquittal on that account.
137. Ld. Senior PP for the CBI has argued that PW10 Sh. Ravi Rashmi Dhar has proved the sanction order Ex.PW10/1 against accused no. 3 Jeetander Veer Arora and deposed that he had received the request of CBI for granting sanction for prosecution of Jeetander Veer Arora (accused no.3) through the vigilance department of PNB and after careful examination of the CBI file which was containing the police report, he had accorded sanction for prosecution of Jeetander Veer Arora (accused no.3) and forwarded the said sanction order to SP CBI, ACB, New Delhi vide letter dated 21.03.2018 as Ex.PW10/2.
138. Regarding accused no.1 Rama Nand Gupta and accused no.2 Bhuvnesh Kumar Julka, Ld. Sr.PP for CBI submits that PW16 Sh. V.P.Jain has granted the sanction for prosecution of accused no.1 Rama Nand Gupta and Accused no.2 Bhuvnesh Kumar Julka vide Ex.PW16/A and Ex. PW16/B and has deposed that he had received the request of CBI for granting sanction for prosecution of accused no.1 Rama Nand Gupta and accused no.2 Bhuvnesh Kumar Julka through the vigilance department of PNB. He further deposed that after careful examination of the CBI file and investigation report of PNB he had accorded sanction Ex.PW16/A and Ex.PW16/B for prosecution of accused no.1 Rama Nand Gupta and accused no.2 Bhuvnesh Kumar Julka as he had found a fit case for grant of sanction for prosecution of the said accused persons.
139. Regarding requirement of sanction under section 197 C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 84/92 Cr.P.C, it is argued on behalf of CBI that said sanction is not applicable upon the bank officials because they do not come under category of public servants. Section 197 Cr.P.C. is reproduced as under:
197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the 1 affairs of a State, of the State Government:
Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted.
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 85/92 that the provisions of sub section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub section will apply as if for the expression" Central Government"
occurring therein, the expression" State Government"
were substituted.
1(3A) Notwithstanding anything contained in sub section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 86/92 person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
140. Ld. Sr.PP for CBI has relied upon the case of State of Maharshtra through CBI Vs. Mahesh G. Jain in Crl. Appeal No. 2345 of 2009 decision dated 28.05.2013 wherein it was held in para 16 as under:
"16. Presently, we shall proceed to deal with the contents of the sanction order. The sanctioning authority has referred to the demand of the gratification for handing over TDS certificate in Form 16A of the Incometax Act, the acceptance of illegal gratification by the accused before the panch witnesses and how the accused was caught red handed. That apart, as the order would reveal, he has fully examined the material documents, namely, the FIR, CFSL report and other relevant documents placed in regard to the allegations and the statements of witnesses recorded under Section 161 of the Code and, thereafter, being satisfied he has passed the order of sanction. The learned trial Judge, as it seems, apart from other reasons has found that the sanctioning authority has not referred to the elementary facts and there is no objective material to justify a subjective satisfaction. The reasonings, in our considered opinion, are absolutely hyper technical and, in fact, can always be used by an accused as a magic trick to pave the escape route. The reasons ascribed by the learned trial Judge appear as if he is sitting in appeal over the order of sanction. True it is, grant of sanction is a sacrosanct and sacred act and is intended to provide a safeguard to the public servant against vexatious litigation but simultaneously when C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 87/92 there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused. In the obtaining factual matrix, we must say without any iota of hesitation that the approach of the learned trial Judge as well as that of the learned single Judge is wholly incorrect and does not deserve acceptance."
141. Ld. Sr.PP for CBI further relied upon the case of " Mohd.
Hadi Raja Vs. State of Bihar and Anr", 1998 Cr.LJ 2826 (SC) wherein it was held that the sanction under Section 197 of the Cr.P.C. is not applicable to the officers of Government Companies or the public undertakings even when such public undertakings are 'State' within the meaning of Article12 of the Constitution on account of deep and pervasive control of the government. The ratio of Mohd Hadi Raja (Supra) has been reiterated recently by the Hon'ble Supreme Court of India in case of "Bharat Sanchar Nigam Ltd and Others Vs. Pramod V.Sawant and another" (criminal appeal no. 503 of 2010) judgment dated 19.08.2019 wherein in para no.9 & 10, 13 it was held as under: " 9.In Mohd. Hadi Raja (supra), the court was considering the need for sanction for prosecuting officers of public sector undertakings or government companies falling within the definition of 'State' under Article 12 of the Constitution and who were removable from office save by sanction of the Government. Holding 7 that protection under Section 197, Cr.P.C. was not available to such persons, it was held as follows:
"27. Therefore, in our considered opinion, the protection by way of C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 88/92 sanction under Section 197 of the Code of Criminal Procedure is not applicable to the officers of government companies or the public undertakings even when such public undertakings are "State"
within the meaning of Article 12 of the Constitution on account of deep and pervasive control of the Government...."
10. In N.K. Sharma vs. Abhimanyu, (2005) 13 SCC 213, rejecting the challenge for requirement of sanction under Section 197, Cr.P.C., it was observed as follows:
"13. Admittedly the salary of the appellant is not paid by the Government. He at the relevant time was not in the service of the State. Prosecution against an officer of a government company or a public undertaking would not require any sanction under Section 197 CrPC."
13. Mohd. Hadi Raja (supra) has been noticed more recently in Punjab State Warehousing Corporation vs. Bhushan Chander and another, (2016) 13 SCC 44, holding that the High Court erred in providing the protection under Section 197, Cr.P.C. to an employee of the appellant Corporation which was fully government owned and financed by the State Government, and therefore, respondent fell within the definition of a 'public servant'. Setting aside the orders of the High Court, this Court observed as follows:
"23. In Mohd. Hadi Raja v. State of Bihar the question arose whether Section 197 CrPC was applicable for prosecuting officers of the public sector undertakings or the government companies which can be treated as State within the meaning of Article 12 of the Constitution of India.
C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 89/92 The Court referred to Section 197 CrPC, noted the submissions and eventually held that the protection by way of sanction under Section 197 CrPC is not applicable to the officers of government companies or the public undertakings even when such public undertakings are "State" within the meaning of Article12 of the Constitution on account of deep and pervasive control of the Government.
24. The High Court has not accepted the submission of the Corporation in this regard. We are constrained to note that the decision in Mohd. Hadi Raja has been referred to in the grounds in this appeal. There is nothing on record to suggest that the said decision was cited before the High Court..........................."
142. PW16 Sh. V.P.Jain who had accorded sanction qua accused no. 1 Rama Nand Gupta and accused no. 2 Bhuvnesh Kumar Julka in his crossexamination has stated that he had got request letter from CBI alongwith the investigation report/charge sheet informing him about the details of the investigation conducted. He further stated that the main content of the charge sheet/ investigation report was running into 7 to 8 pages with an annexure of 2 to 3 pages and he had accorded the sanction only on the basis of the said report placed before him by the CBI. He had denied the suggestion that the entire relevant material was not placed before him and that he had accorded sanction only on the basis of the request letter sent to him.
143. PW10 Sh. Ravi Rashmi Dhar who had accorded sanction C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 90/92 qua accused no. 3 Jeetander Veer Arora has deposed that he received the request letter of CBI for grant of sanction for prosecution of accused no. 3 through vigilance department. The CBI file was containing the police report. After careful examining the file, he accorded sanction for prosecution of accused no.3 Jeetander Veer Arora as he found a fit case against him to grant the sanction. He also denied the suggestion in his crossexamination that the entire relevant material was not placed before him and that he accorded the sanction on the basis of request letter sent by CBI. He further clarified that he had given sanction on the basis of the contents of the investigation report. He further clarified that he had granted sanction on the basis of the investigation report running into 6 to 10 pages approximately as far as he remembers. He further denied the suggestion that he did not apply his independent mind to the documents placed before him.
144. Thus, on perusal of the evidence of the sanctioning authority PW10 Sh. Ravi Rashmi Dhar and PW16 Sh. V.P. Jain it is found that the sanction has been granted after application of mind independently to the material placed before them. Since many years passed when the witnesses had accorded the sanction therefore, minor contradictions in their depositions on some aspects is natural and does not vitiate the sanction order.
145. Regarding the contention of lack of sanction under section 197 Cr.P.C, I am of the considered opinion that the said requirement under section 197 Cr.P.C. was not applicable in case of bank officials i.e. the accused persons, employees of public sector undertakings. Prosecution has thus established by sufficient C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 91/92 evidence that the prosecution has been launched against accused persons after obtaining necessary sanction of the competent authority. The arguments advanced on behalf of the accused persons regarding invalidity of sanction has no force and accordingly stands rejected.
146. In view of the above discussion, I am of the considered opinion that prosecution has succeeded in proving its case against the accused persons beyond reasonable doubt. I therefore hold the accused no.1 Rama Nand Gupta, accused no.2 Bhuvnesh Kumar Julka and accused no.3 Jeetander Veer Arora guilty and convict for the offence under section 120B read with section 409 IPC, 477A IPC, 471 IPC and section 13(2) read with section 13 (1) (d) of the P. C Act, 1988. Each accused is further held guilty and convicted for the offence u/s 409 IPC read with section 120B IPC, 471 IPC read with section 120B IPC, 477A IPC read with section 120B IPC and section 13(2) read with section 13 (1) (d) of the P. C Act, 1988 and section 120B IPC.
Announced in the open court RAJ KUMAR Digitally signed by RAJ KUMAR CHAUHAN on 22.08.2019 CHAUHAN Date: 2019.08.23 17:08:50 +0530 (RAJ KUMAR CHAUHAN) Special Judge03 (P.C Act) CBI Rouse Avenue Courts, New Delhi. 22.08.2019 C.C.No. 6/2019 (R.no. 84/19) (RAJ KUMAR CHAUHAN) CBI Vs. Rama Nand Gupta Etc. Special Judge (P.C Act) CBI03 RACC: New Delhi : 22.08.2019 Page no............ 92/92