Delhi District Court
Rc No. 06(E)/2003/EowI/Cbi/Nd vs Keshav Sharma And Others And Compared ... on 4 December, 2018
1
IN THE COURT OF SH. SANJIV JAIN:
SPECIAL JUDGE (PC ACT), CBI03, SOUTH DISTRICT,
SAKET COURT, NEW DELHI
CNR No. DLST010000072004
CC No. 21/12 (13/2016)
RC No. 06(E)/2003/EOWI/CBI/ND
U/s 120B r/w Section 419,420, 467, 468, 471 IPC &
and U/Sec. 13(2) r/w Section 13(1)(d) of P.C. Act, 1988
and substantive offences U/Sec. 420, 419, 467,468,471
and Section 13(2) r/w 13(1)(d) of PC Act, 1988
Central Bureau of Investigation
Versus
A1 Sharad Kumar Jain @ Satish Chand Jain
S/o late Sh. Laxmi Chand Jain
Prop. M/s Paramount Insulation Co.,
R/o H.No. A22 F1, IInd Floor,
Dilshad Colony, Delhi 110095. Accused no. 1
A2 Sanjay Gupta @ Sanjay Jain
S/o Sh. H.S. Gupta
Prop. Sharda Metal,
R/o 1/16, SFS Agarwal Farm,
Mansarover Jaipur (Raj.) Accused no. 2
A3 Pravir Ranjan Purari
S/o late Dr. Pravas Ranjan Pujari,
Chief Manager, Indian Bank,
Chandni Chowk Branch, Delhi
R/o B5/381, Sector8, Rohini,
Delhi 110085. Accused no. 3
CC No. 21/12 04.12.2018 1 of 247
RC No. 06(E)/2003/EOWI/CBI/ND
CBI v. Sharad Kumar Jain & Ors
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A4 Sushil Narain
S/o Sh. Laxmi Narain, Director,
Delhi Career Academy,
D3031, IInd Floor, Vikas Marg,
Delhi.
R/o F146, Main Bazar,
Laxmi Nagar, Delhi Accused no. 4
A5 Tarun Khanna @ Deepak Bansal
S/o Sh. Sohan Lal, Director,
M/s Paramount Insulation Pvt. Ltd.,
R/o Gali no. 6, Balbir Nagar,
Shadhara, Delhi. Accused no. 5
A6 P. N. Upadhyay
S/o Sh. K.P. Upadhyay,
R/o C881, Shalimar Garden ExtensionII,
Sahibabad, Distt. Ghaziabad (U.P.) Accused no. 6
A7 Rakesh Verma @ Kuldeep Gupta
S/o Sh. Ram Parvesh Verma
Worker, Sharda Metals,
R/o C150, Partap Nagar, Vill. Saboli,
Near Nand Nagari, Delhi Accused no. 7
Date of FIR : 30.05.2003
Date of filing of Chargesheet : 30.11.2004
Arguments completed on : 29.11.2018
Date of judgment : 04.12.2018
CC No. 21/12 04.12.2018 2 of 247
RC No. 06(E)/2003/EOWI/CBI/ND
CBI v. Sharad Kumar Jain & Ors
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JUDGMENT
Brief facts of the case:
1. The quest in all criminal trials is to arrive at the truth and therefore, the role of the Judge is to cull out the true facts from the evidence led before him and ensure that guilty do not go scotfree and innocent's life and liberty is not jeopardised. This role of the Judge has been explained in the case of Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors. AIR 2004 SC 345 thus:
"..A criminal trial is a judicial examination of the issues in the cases and its purpose is to arrive at judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings, the controlling question being the guilt or innocence of the accused. Since the object is to meet out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not be an isolated scrutiny.."
2. This case was registered on a written complaint of S K Virmani, DGM, Indian Bank, New Delhi. It was alleged that Satish Chand Jain, proprietor of M/s Paramount Insulation Co. at 78A, Dilshad Garden, Delhi in conspiracy with Sanjay Jain and some unknown persons cheated and defrauded the Indian CC No. 21/12 04.12.2018 3 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 4 Bank, Chandni Chowk branch by availing credit facilities on the basis of forged/bogus documents causing loss to the bank to the tune of Rs.46.04 lacs.
3. Investigation revealed that Sharad Kumar Jain, an employee of Sanjay Gupta impersonated as Satish Chand Jain whereas Sanjay Gupta, proprietor of M/s Sharda Metals, impersonated as Sanjay Jain. Sanjay Gupta had taken the premises No. 78A Dilshad Garden, Delhi on rent from Nehru Jain for running Sharda Metals. Sharad Kumar Jain, Rakesh Verma, Tarun Khanna and P. N. Upadhyay were his employees in M/s Sharda Metals.
4. Investigation further revealed that Sanjay Gupta and Sharad Kumar Jain visited Chandni Chowk branch of Indian Bank where Sharad Kumar Jain was introduced as Satish Chand Jain, proprietor of M/s Paramount Insulation Co. at 78A, Dilshad Garden, Delhi and submitted a loan proposal dated 25.02.2002 for sanction of working capital limit of Rs.50.0 lacs. The loan application was signed by Sharad Kumar Jain in the assumed name of Satish Chand Jain as proprietor of the firm mentioning that the firm was engaged in the wholesale trading of copper wires though in actual it was not involved in any genuine business transactions and was only on papers. With the application, Sharad Kumar Jain enclosed various documents and also submitted photocopy of voter I card issued in the name of Satish Chand Jain. He also offered the CC No. 21/12 04.12.2018 4 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 5 property No. 78A, Dilshad Garden, Delhi as collateral security. He submitted a copy of the Sale Deed of the above property registered in the name of Satish Chand Jain.
5. Investigation further revealed that M. C. Kochar of M/s M C Kochar & Associates submitted his legal opinion dated 02.03.2002 in respect of the above property in response to the letter of Chief Manager dated 28.02.2002 advising him to obtain Mutation Certificate in favour of the vendee indicating that the property now stood mutated in the name of vendee in the record of MCD. Chief Manager namely Pravir Ranjan Pujari contrary to his report, in conspiracy with the accused persons with malafide intention, accepted the Khasra Girdawari submitted by the party allegedly signed by Vijender Singh Patwari on 28.02.2002 and did not obtain the Mutation Certificate from MCD. The said Khasra Girdawari was found forged. No patwari by the name of Vijender Singh was found posted either in NorthEast District or DDA during the said period. As per GEQD report, the Khasra Girdawari was prepared by Sanjay Gupta @ Sanjay Jain in his own handwriting and he had signed as Vijender Singh Patwari.
6. Investigation further revealed that in the loan application it was informed that its existing bankers were Jain Cooperative Bank Ltd, Shahdara branch, Delhi and it has a current account with them. It had also submitted statement of account purportedly issued by Jain Cooperative Bank Ltd. P. R. CC No. 21/12 04.12.2018 5 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 6 Pujari, Chief Manager, wrote a letter dated 06.03.2002 to the Branch Manager, Jain Cooperative Bank Ltd, Shahdara to obtain credit information report in respect of the account of M/s Paramount Insulation Co. Indian Bank purportedly received the reply dated 09.03.2002 alongwith a proforma wherein it was shown that the party was dealing with the bank since 29.04.1998 and its dealings with the bank were satisfactory. It was also mentioned that the party was having a current account and has not availed any credit facility from them. Investigation revealed that M/s Paramount Insulation Co. never had any account with Jain Cooperative Bank Ltd, Shahdara branch and the reply dated 09.03.2002 was a forged reply. Even the statement of account submitted by the party was fake. M/s Jain Cooperative Bank Ltd never received the letter dated 06.03.2002, written by P. R. Pujari nor sent any reply dated 09.03.2002 and there was no such branch of M/s Jain Cooperative Bank Ltd at the given address. Investigation revealed that P. R. Pujari did not send that letter by post but instead handed over to the party and he accepted the purported reply as given to him by the party.
7. Investigation further revealed that Sanjay Gupta who impersonated as Sanjay Jain stood guarantor in the loan account. He submitted assets and liabilities statement in respect of Sanjay Jain giving details of his assets etc mentioning the residential address of Sanjay Jain as 77A, CC No. 21/12 04.12.2018 6 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 7 Dilshad Garden, Delhi showing himself as the owner of the house valuing Rs.30.0 lacs. On the basis of that information, Assistant Manager, G. Sriram prepared the credit report in respect of Sanjay Jain but on investigation it was found that Sanjay Gupta @ Sanjay Jain never resided in the said house. G. Sriram in the process note had asked the party to submit the relevant receipt /copies of the title deed but P. R. Pujari wrote on the process note "copy of the PO ( Power of Attorney) shown. Property not registered in his name". He accepted the copy of the said GPA which was bogus. Further no Tax Receipt was produced to show that the property was in the name of Sanjay Jain.
8. Investigation further revealed that P. R. Pujari sanctioned the Open Cash Credit (OCC) Limit against Stock and Book Debt for Rs.45.0 lacs under Trade Finance Scheme on 10.04.2002 and issued a formal sanction order mentioning usual terms and conditions to be complied by the party. Sharad Kumar Jain who impersonated as Satish Chand Jain, proprietor of M/s Paramount Insulation Co., executed the documents on the same day in the presence of P. R. Pujari. He also opened a current account no. 9451 on 11.04.2002 in the name of M/s Paramount Insulation Co. The account was introduced by Rajesh Gupta of M/s Shubham Saree Emporium, Chandni Chowk Delhi. Investigation revealed that Rajesh Gupta had introduced the account at the instance of Sushil Narain, CC No. 21/12 04.12.2018 7 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 8 Director of Delhi Career and Financial Consultant, Laxmi Nagar. He did not know either Sharad Kumar Jain @ Satish Chand Jain or Sanjay Gupta @ Sanjay Jain. Sushil Narain had got a loan of Rs.15.0 lacs sanctioned to Rajesh Gupta from the Chandni Chowk branch of Indian Bank on 20.02.2002 and therefore, Rajesh Gupta obliged him by introducing the said account. The current account of M/s Paramount Insulation Co. was converted into OCC A/c No. 13030.
9. Investigation revealed that M/s Paramount Insulation Co. with the proposal had submitted the audit reports of the years 19992001 allegedly issued by Vinod Sharma of V. Sharma & Associates, Chartered Accountant, C55/X3, Dilshad Garden Delhi but the same were found forged and were never issued by Vinod Sharma. The said firm was operating from the address at 1/6697, East Rohtash Nagar, Shahdara, Delhi 32 and was closed in 1990. Vinod Sharma had joined Delhi State Civil Supply Corporation in 1991. Investigation revealed that the flat No. C55/X3, Dilshad Garden was taken on rent by Sanjay Gupta @ Sanjay Jain from Gopi Chand in 19971998 which remained with him till September, 2001.
10. Investigation further disclosed that the party had submitted photocopy of Voter Icard issued in the name of Satish Chand Jain with the loan proposal on which photograph of Pankaj Garg was affixed. The party had submitted a copy of Sales Tax Registration Certificate on the back of which photograph CC No. 21/12 04.12.2018 8 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 9 of Sharad Kumar Jain was affixed. Investigation revealed that Sharad Kumar Jain @ Satish Chand Jain used to go to the bank with Sanjay Gupta @ Sanjay Jain in connection with the loan proposal. The party had also submitted a copy of PAN Card No. ACUPJ2651B issued in the name of Satish Chand Jain bearing the photograph of Sharad Kumar Jain at the time of opening of current account. The Sales Tax receipts for the assessment year 20002001 and 20012002 and Sales Tax Registration Certificate dated 02.06.1998 submitted with the bank during investigation were found forged.
11. Investigation revealed that the party had submitted the Sale Deed of the property No. 78A Dilshad Garden, Delhi executed on 27.12.2000 between Kuldeep Gupta (vendor) and Satish Chand Jain R/o 78A Dilshad Garden, Delhi (Vendee) on the basis of GPA dated 09.05.1984 executed by Mohan Lal, Raj Bahadur, A. Dass and Raj Bahadur in the favour of Kuldeep Gupta registered with the SubRegistrar, Seelam Pur vide No. 2966 dated 27.12.2000, Book No. 1, Volume 3254, Page No. 7377 which was found forged. In the Sale Deed, photographs of Rakesh Verma as Kuldeep Gupta and Sharad Kumar Jain as Satish Chand Jain were affixed. GEQD opined that Rakesh Verma had signed as Kuldeep Gupta and Sharad Kumar Jain had signed as Satish Chand Jain. Inder Pal Singh and Nanu Mal, Advocate had signed as witnesses. GEQD opined that Sanjay Gupta @ Sanjay Jain had signed the Sale CC No. 21/12 04.12.2018 9 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 10 Deed as Inder Pal Singh, witness. As per the SubRegistrar office record, the Sale Deed of the property was registered vide Serial No. 2966 dated 27.12.2000 on which photograph of Pankaj Garg, relative of Sanjay Gupta, was affixed as Satish Chand Jain. As per GEQD report, typing script, stamp impression and serial number available on the original office copy of Sale Deed in the record of SubRegistrar and on the Sale Deed submitted by the party to the bank were different. It was opined that serial numbers of the stamp papers of the Sale Deed submitted in the bank were printed after erasing the original printed serial numbers. Investigation revealed that no person by the name of Kuldeep Gupta and Satish Chand Jain ever lived at 78A, Dilshad Garden, Delhi and even GPA was bogus. Raj Bahadur had expired in 1975 whereas GPA was shown executed on 09.05.1984.
12. Investigation further disclosed that P. R. Pujari, the then Chief Manager asked Sushil Narain, a private person, to submit credit worthiness / market report about Sanjay Gupta @ Sanjay Jain, Sharad Kumar Jain @ Satish Chand Jain and M/s Paramount Insulation Co. Despite the fact that the party and the guarantor were totally new to the bank and Sushil Narain did not have dealing with the bank, he gave a verbal report that he knows Sanjay Jain and Satish Chand Jain for eight years, he has checked in the market. He gave a report showing the worthiness of the party as Rs.1.01.50 crores as CC No. 21/12 04.12.2018 10 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 11 indicated in the note dated 13.03.2002 by P. R. Pujari. Investigation revealed that Sanjay Gupta had paid commission of Rs.3,69,240/ to Sushil Narain as mentioned in a pocket diary recovered from his residence. Some phone numbers in the hand of Sanjay Gupta were found in the diary which were of Sushil Narain and his relations. Investigation further disclosed that P. R. Pujari made a presanction visit to 78A, Dilshad Garden, Delhi and inspected the stock/property but he deliberately did not ascertain the true facts nor ensured the proper end use of the bank funds.
13. Investigation revealed that M/s Paramount Insulation Pvt. Ltd had opened a current account on 08.03.2000 in Vyasya Bank, Yamuna Vihar branch in which Sanjay Gupta @ Sanjay Jain and Deepak Bansal were shown as Directors. In that account, Tarun Khanna @ Sonu had impersonated as Deepak Bansal. To siphon off the funds/loan obtained from Indian Bank, Sharad Kumar Jain @ Satish Chand Jain as proprietor/Director opened two accounts in Vyasya Bank, Yamuna Vihar branch in the name of two nonexistent firms, namely, M/s Alpha Communications India and M/s Hindustan Industries on 01.12.2001 and 22.10.2002 respectively. The accounts were introduced by Deepak Bansal @ Tarun Khana @ Sonu, Director of M/s Paramount Insulation Pvt. Ltd and Sanjay Jain, proprietor of M/s Arihant Industries from which accounts there were withdrawals of CC No. 21/12 04.12.2018 11 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 12 Rs.2,42,88,547/ and Rs.17,36,518/ respectively and the above accounts were closed on 13.10.2002 and 13.12.2002 respectively. Investigation revealed that Tarun Khanna @ Sonu was the real brother of Meenu Pathak whose husband Narender Pathak was the close friend of Sanjay Gupta @ Sanjay Jain. Meenu Pathak, after the death of her husband, used to live at C55/X3, Dilshad Garden, Delhi with the accused Tarun Khanna @ Sonu which flat was taken on rent by Sanjay Gupta @ Sanjay Jain and Tarun Khanna @ Sonu was the employee of Sanjay Jain @ Sanjay Gupta during the relevant period. Sanjay Jain, proprietor of M/s Arihant Industries, Shahdara was the client of P. N. Upadhyay who had been working as Accountant with Sanjay Gupta @ Sanjay Jain. He had introduced the account of Hindustan Industries on the asking of P. N. Upadhyay though he did not know Sharad Kumar Jain @ Satish Chand Jain.
14. Investigation further revealed that Sanjay Gupta @ Sanjay Jain and Sharad Kumar Jain @ Satish Chand Jain rotated the funds from the account of M/s Paramount Insulation Co. through the aforesaid accounts by issuing accommodation cheques and finally the funds were siphoned off through self cheques from the accounts of M/s Alpha Communications India and M/s Hindustan Industries. Number of self cheques were signed by Sharad Kumar Jain in the account of M/s Alpha Communications India which were encashed by Tarun CC No. 21/12 04.12.2018 12 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 13 Khanna @ Sonu by signing as Deepak Bansal.
15. Investigation further revealed that P. N. Upadhyay used to prepare the books of account and stocks of M/s Paramount Insulation Co. and show to the bank officials at the time of inspection. He encashed two self cheques for Rs.6.30 lacs dated 07.10.2002 and Rs.50,000/ dated 12.12.2002 issued by Sharad Kumar Jain @ Satish Chand Jain from the account of M/s Paramount Insulation Co. on the basis of the authority given to him by Sharad Kumar Jain. He also got number of self cheques encashed from the account of M/s Alpha Communications (India) with Vyasya Bank Ltd Yamuna Vihar branch given by Sharad Kumar Jain, proprietor of M/s Alpha Communications (India) in which Sharad Kumar Jain had signed as Sharad Kumar Jain. He knew that Sharad Kumar Jain had impersonated as Satish Chand Jain in the account of M/s Paramount Insulation Co. with Indian Bank, Chandni Chowk branch but he did not disclose it to the bank officials and thus facilitated him to cheat the bank. He got encashed four self cheques for Rs.4.75 lacs each dated 19.06.2002 and two self cheques of Rs.4.50 lacs each dated 19.06.2002 issued from the account of M/s Alpha Communications India under the signatures of Sharad Kumar Jain on 19.06.2002. On the same day, he deposited Rs. 17.05 lacs in his saving bank account and got prepared a Pay Order of Rs.17.0 lacs in the name of Agarwal Associates CC No. 21/12 04.12.2018 13 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 14 (Promoters) Ltd.. Investigation revealed that Sanjay Gupta @ Sanjay Jain had impersonated as Sanjay Mittal and purchased a shop in the Community Centre, Karkardooma from Agarwal Associates (Promoters) Ltd.. The photograph of Sanjay Mittal affixed on the agreement regarding purchase of the shop was of Sanjay Gupta. He sold the said shop in January, 2003. He also opened a saving bank account on 23.01.2003 for siphoning off the sale proceeds received by him against the sale of the said shop.
16. Investigation further revealed that the account of M/s Paramount Insulation Co. became NPA on 31.03.2003 with total outstanding as Rs.47,70,368/.
17. The facts disclosed commission of offences by Sharad Kumar Jain @ Satish Chand Jain, proprietor of M/s Paramount Insulation Co., Sanjay Gupta @ Sanjay Jain @ Sanjay Mittal, P. R. Pujari, the then Chief Manager, Indian Bank, Chandni Chowk branch, Sushil Narain, Tarun Khanna @ Sonu @ Deepak Bansal, P. N. Upadhyay and Rakesh Verma @ Kuldeep Gupta u/s 120B r.w 419,420,467,468 and 471 IPC and Section 13(2) r.w 13 (1) (d) of the P. C. Act, 1988 and Substantive Offences.
18. The authority competent to remove the bank official viz P. R. Pujari granted the sanction for prosecution u/s 19(1)(c) of P. C. Act, 1988 to prosecute him under the above offences.
CC No. 21/12 04.12.2018 14 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 15 CHARGE
19. Ld Predecessor of this Court vide detailed order dated 10.08.2006 reached the conclusion that a prima facie case is made out against all the accused persons. Accordingly, on 18.08.2006, all the accused persons were charged for the offences punishable u/s 120B and 120B r.w 419,420,467,468 and 471 IPC and Section 13(2) r.w 13 (1) (d) of the P. C. Act, 1988. Accused P. R. Pujari was also charged for the offences punishable u/s 13(2) r.w. 13(1)(d) of the P. C. Act, 1988 and 420 IPC. Accused Sharad Kumar Jain was also charged for the offences punishable u/s 420, 419, 467,468 and 471 IPC. Accused Sanjay Gupta was also charged for the offences punishable u/s 419, 420 and 467 IPC. Accused Rakesh Verma was also charged for the offences punishable u/s 419, 420 and 467 IPC. Accused Tarun Khanna was also charged for the offences punishable u/s 419 and 467 IPC. Accused P. N. Upadhyay was also charged for the offences punishable u/s 467 IPC. All the accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
20. In order to prove its case, prosecution examined as many as 61 witnesses. The gist of statement of witnesses is as under:
20.1 PW1 Rishab Jain was posted as Supervisor in Jain Cooperative Bank, Shahdara branch in 2002. He stated that CC No. 21/12 04.12.2018 15 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 16 the letter No. 965/SHD/968 dated 09.03.2002 Ex. PW 1/A purportedly issued by Jain Cooperative Bank Ltd, Shahdara branch was not issued by their branch nor it bears the signatures of the Manager Viresh Chand Jain. He produced the Letter Head of Jain Cooperative Bank Ex. PW 1/B stating that the Letter Head on which Ex. PW 1/A was purportedly issued was not the Letter Head of Jain Cooperative Bank. He stated that his bank never issued the credit information report Ex. PW 1/C in respect of M/s Paramount Insulation Co. nor it bears the signatures of Viresh Chand Jain. Even the stamp affixed on the report is not of the bank. He proved the copy of the dispatch register (D209) Ex. PW 1/E and stated that as per the dispatch register, no credit report was issued for the period from 08.03.2002 to 11.03.2002 to the Chief Manager, Indian Bank, Chandni Chowk branch. He stated that his bank never issued the statement of account of account No. CA001508 (D8) of M/s Paramount Insulation Co. Mark A ( 11 sheets) nor the said statement is in the format of their bank. He proved the letter Ex. PW 1/F vide which the bank had informed the CBI that M/s Paramount Insulation Co. did not have the account No. 1508 with the bank. 20.2 PW2 Viresh Chand Jain was the Manager in Jain Cooperative Bank, Shahdara branch from November, 2001 to March, 2002. He deposed on the lines of PW1.
CC No. 21/12 04.12.2018 16 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 17 20.3 PW3 Raj Kumar Goyal used to do the business of scrap in the name of Saurabh Steel India in Tahir Pur. He was the owner of the premises bearing No. 134, Tahir Pur Dairy, Delhi. He stated that he had purchased the land from R. K. Bhardwaj and since the date of purchase, he has been running his business at the aforesaid premises. He stated that there was no such company by the name of M/s Hindustan Industries functioning at the said address since 1997 nor he rented this property to anyone nor he knows Sharad Kumar Jain nor he can identify the photograph on the account opening form Mark D. 20.4 PW4 Rajender Kumar Shukla was the resident of 11662, Panchsheel Garden, Navin Shahdara, Delhi. He stated that he lives at the above address since 1984. He never established any firm at the said address nor opened any account in Vyasya Bank, Yamuna Vihar branch in the name of M/s Alpha Communications. He had an account in Vyasya Bank, Noida which he closed in 1990. He stated that he does not know any person by the name of Sharad Kumar Jain nor knows the person whose photograph has been affixed on the account opening form Mark E of M/s Alpha Communications (India). He stated that he does not know Sanjay Gupta, Pankaj Garg, Tarun Khanna @ Sonu etc. He stated that he had been running a firm in the name of M/s Alpha Communications (India) probably in the year 1984/1985 CC No. 21/12 04.12.2018 17 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 18 which he closed in the year near about 2000.
20.5 PW5 Gopi Chand stated that he had purchased the flat No. C55/X3, Dilshad Garden, Delhi in 1987 from DDA. He had rented out the flat to Sanjay Gupta in 19971998 without any agreement in writing. He stated that Sanjay Gupta had been running a factory in front of his flat. He identified the accused Sanjay Gupta. He stated that a widow used to live in that flat which he got vacated in 2001. In December, 2002, he sold the flat to Rajiv Choudhary. He stated that he does not know Vinod Sharma CA nor he rented out the above flat to Vinod Sharma.
20.6 PW6 Anuj Kumar Beotra used to work as Site Engineer with B. P. Aneja. He stated that he and B. P. Aneja had done the valuation of the property of Sushil Narain for the bank loan in 2001. He identified the accused Sushil Narain and Sanjay Gupta and stated that Sanjay Gupta had requested him several times for loan. He then got him introduced with Sushil Narain.
20.7 PW7 Nehru Jain stated that he lives at Plot No. 78A, Dilshad Garden, Delhi which he inherited from his father Late Sh. R B Jain. The above property was purchased by four persons vide Sale Deed Mark X and X1 (D51 and D166) from Smt. Gauri Devi. The size of the plot was about 5000 sq. yards. About 1100 sq. yards came in the share of his father. His father expired on 01.02.1975. He proved his death certificate CC No. 21/12 04.12.2018 18 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 19 Ex. PW 7/A (D172) and stated that he has four sisters namely Anita Jain, Nisha Gupta, Rajni Jain and Shashi Jain. The share of Raj Bahadur went to Smt. Kanta Devi Jain who sold it to Vijay Kumar Gupta, husband of Nisha Gupta and Smt. Nisha Gupta vide Sale Deed dated 07.08.2002 Mark X2 (D175). He stated that Sanjay Gupta was his tenant at 78A, Dilshad Garden from 1992 to 2002 vide rent agreement Ex. PW 7/B1 where he used to run a factory in the name of M/s Sharda Metals. He identified the accused Sharad Kumar Jain, Rakesh Verma, Sanjay Gupta, Tarun Khanna and P. N. Upadhyay. After seeing the Sale Deed dated 27.12.2000 (D
47) Mark X4 of property no. 78A, Dilshad Garden, he stated that the photograph of the vendor is of Rakesh Verma and vendee is of Sharad Kumar Jain. He stated that he never sold the property to anyone. He was also confronted with GPA (D
48) Mark X5 executed by Mohan Lal & Ors in favour of Kuldeep Gupta on 09.05.1984. He stated that the GPA does not bear the signatures of his father since he died on 01.02.1975. He was also confronted with the Agreement to Sell (D49) Mark X6 dated 09.05.1984 and receipt (D50) dated 09.05.1984 Mark X7 purportedly executed by Mohan Lal & Ors in favour of Kuldeep Gupta regarding the property no. 78A Dilshad Garden, Delhi and he stated that the agreement and receipt do not bear the signatures of his father. He stated that current account opening form Mark X8 (D47) CC No. 21/12 04.12.2018 19 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 20 bears the photograph of Sharad Kumar Jain. He stated that no person by the name of Satish Kumar Jain and Kuldeep Gupta ever lived in the property no. 78A, Dilshad Garden, Delhi. His wife Poonam Jain and his sisterinlaw Preeti Jain used to pay the municipal taxes of the said property. He and his brother Mukesh Jain had executed GPA (D184) Ex. PW 7/B in favour of Preeti Jain and Poonam Jain. He also proved the surrender of possession and acknowledgment of possession bearing his signatures and that of Sanjay Gupta Ex. PW 7/C. He stated that none of the bank official enquired anything about Sanjay Gupta or his employee from him or his family members. He stated that Sharad Kumar Jain is his cousin whom he had got employed with Sanjay Gupta. He stated that he had constructed a building at Nehru Complex, Plot No. 9, Pandav Nagar, Delhi. He had rented a hall to Sanjay Gupta for his business. He stated that M/s Paramount Insulation Pvt. Ltd, M/s Paramount Insulation Co., M/s Aman Trading Co. and M/s Creative Traders Pvt. Ltd. never functioned at the above address. He stated that whole of the property measuring 5000 sq. yards bears the same number i.e. 78A, Dilshad Garden, Delhi.
20.8 PW8 S. V. Satya Prakash was posted as Assistant Manager in ING Vyasya Bank, Yamuna Vihar Branch in 20012002. He stated that the letter dated 24.06.2003 Ex.PW8/A (D68) CC No. 21/12 04.12.2018 20 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 21 was issued under the signatures of S.K. Bansal, the then Branch Manager. He also proved the account opening form of P. N. Upadhyay SB A/c no. 535010060013 opened on 17.09.2002 Ex.PW8/B (D68). He stated that P. N. Upadhyay had signed the form in his presence. He stated that the account was not introduced by anyone since he already had account SB A/c No. 535010034660. He stated that Form 60, Ex.PW8/C, Form DA1 Ex.PW8/A and Pay in slip Ex.PW8/E, cheque no. 200241 Ex.PW8/F (D70) were also given by P. N. Upadhyay. He identified his signatures on the above documents and stated that P. N. Upadhyay vide challan / voucher dated 19.06.2002 (D71) had requested to make pay order in the name of Agarwal Associates (Promoters) Ltd.. Ex.PW8/G. He had passed the challan and prepared the pay order dated 19.09.2002 of Rs. 17.0 lacs vide No. 194195 Ex.PW8/H which also bears the signatures of N. Suresh. He stated that P.N. Upadhayay had deposited Rs. 17,05,000/ in cash and requested for making the pay order. He also proved the cheques dated 19.06.2002 for Rs. 4,75,000/ each bearing the signature of P. N. Upadhyay Ex.PW8/J to Ex.PW8/N which were seized vide memo Ex.PW8/O dated 15.09.2003 (D72). He also identified the accused P. N. Upadhyay. 20.9 PW9 Suresh Kumar Bansal had been working as Branch Manager in Vysya Bank, Yamuna Vihar Branch in September, 20002001. He stated that from 2002, the name of CC No. 21/12 04.12.2018 21 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 22 the bank was changed as ING Vysya Bank. He proved the copy of account Opening Form of M/s Alpha Communication India, CA no. 1324 dated 01.12.2001 (D65). He stated that he had allowed the opening of the said account vide account opening form Ex.PW8/A. He stated that the account was opened by its proprietor Sharad Kumar Jain who had signed the account opening form at point B and C in his presence and the account was introduced by Deepak Bansal, director of M/s Paramount Insulation Pvt. Ltd whose signatures were verified by S.S. Prasad, the then Assistant Manager. He also identified the photograph of Sharad Kumar Jain on the account opening form. He stated that Sharad Kumar Jain had submitted Form 58 Ex.PW9/B dated 01.12.2001 and form 60 Ex.PW9/C and signed them in his presence. He stated that Sharad Kumar Jain had also signed on the letter head of M/s Alpha Communication Ex.PW9/D. He stated that Sharad Kumar Jain had submitted a Certificate of Registration in two sheets Mark PW9/X, copy of ration card Mark PW9/Y at the time of opening of account. He stated that he had taken the address proof of the account holder at the time of opening of account as well as the proof of proprietorship by taking copy of ration card, sale tax registration etc. 20.10 PW10 C.H. Ramesh was posted as an officer in Yamuna Vihar branch of Vyasya Bank from 1999 to 2002. He proved the account opening form of M/s Paramount Insulation Pvt.
CC No. 21/12 04.12.2018 22 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 23 Ltd. 78A, Dilshad Garden, Delhi which was opened by Deepak Bansal and Sanjay Gupta. He verified the introducer signature on the account opening form Ex.PW10/A. He identified the signature of Sanjay Gupta and Deepak Bansal at points C and D on the account opening form stating that they had signed in his presence and the account was introduced by Sanjay Jain, proprietor of M/s Arihant Industries. He stated that Sanjay Gupta and Deepak Bansal had given form 58, Form 60, Form 277 Ex.PW10/B, Ex.PW10/C and Ex.PW10/D along with the account opening form and put their signatures thereon in his presence. He stated that on the letter head of M/s Paramount Insulation Pvt. Ltd, they had submitted a resolution Ex.PW10/E bearing the signature of Deepak Bansal. Sanjay Gupta had given copy of his ration card Mark A and copy of receipt no. 867 dated 11.10.1999 in support of registration of company with Registrar of Companies, Haryana and Delhi Mark B. 20.11 PW11 N. Suresh was the Manager Operation in Vysya Bank, Yamuna Vihar Branch in 2002. He proved the account opening form of M/s Hindustan Industries dated 18.10.2002 which was opened by Sharad Kumar Jain as its proprietor. He stated that account opening form Ex.PW11/A was signed by Sharad Kumar Jain at points A and B in his presence. He also proved the Customer Information Form bearing the signatures of Sharad Kumar Jain Ex.PW11/B, which Sharad Kumar Jain CC No. 21/12 04.12.2018 23 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 24 had submitted at the time of opening of account. He also proved the copy of Sales Tax Registration Form of M/s Hindustan Industries Ex.PW11/C, copy of Saral Form of Sharad Kumar Jain, proprietor M/s Hindustan Industries Ex.PW10/A, copy of Certificate of Registration of M/s Hindustan Industries Ex.PW11/E, copy of ration card of Sharad Kumar Jain Ex.PW11/F and stated that the above documents were submitted by Sharad Kumar Jain with the account opening form. He also proved the letter head Ex.PW11/H of M/s Hindustan Industries which Sharad Kumar Jain had given alongwith the account opening form. He stated that a pay order bearing no. 194195 dated 19.09.2002 Ex.PW8/H was issued in favour of Agarwal Associates (Promoters) Ltd on the request of P. N. Upadhyay who had SB A/c no. 535010060013 in his bank. 20.12 PW12 M. Shiva Shankar Prasad was posted as an Officer in ING Vysya Bank, Yamuna Vihar Branch from 2001 to 2005. On 15.09.2003, he handed over the documents to CBI vide memo Ex.PW8/O which included account opening form of M/s Alpha Communication India dated 01.12.2001 Ex.PW9/A. 20.13 PW13 Vinay Kumar Aggarwal was Cashier in Vysya Bank, Yamuna Vihar Branch on 11.06.1992. He stated that cheques No. 274616 of Rs. 4,75,000/ Ex.PW8/J, 274615 of Rs. 4,75,000/ Ex.PW8/K, 274617 of Rs. 4,75,000/ Ex.PW8/L, CC No. 21/12 04.12.2018 24 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 25 274618 of Rs. 4,75,000/ Ex.PW8/M, 274621 of Rs. 4,50,000/ Ex.PW8/N, 274620 of Rs. 4,50,000/ Ex.PW13/A were issued by M/s Alpha Communication India for self which were encashed by P. N. Upadhyay by signing on the back of the cheques. He stated that out of Rs. 28.0 lacs, P. N. Upadhyay got made a pay order of Rs. 17,05,000/ in favour of Agarwal Associates (Promoters) Ltd and he paid Rs. 10,95,000/ in cash to P. N. Upadhyay. He identified the accused P. N. Upadhyay. He stated that P. N. Upadhyay had signed on all the six cheques and received the amount and the pay order. He proved the statement of account of M/s Alpha Communications (India) Ex.PW13/C and Ex.PW13/D. He stated that he did not see the identity card of the accused P. N. Upadhyay when he released the cash and issued the pay order. He stated that P. N. Upadhyay used to come in the branch daily in connection with the business of M/s Alpha Communications and all the cheques as referred above were the self cheques and the proprietor of M/s Alpha Communications had authorized P. N. Upadhyay to collect the cash. He admitted that the pay order in favour of Agarwal Associates (Promoters) Ltd was made on the request of P. N. Upadhyay and there was no request letter of M/s Alpha Communications India in this regard.
20.14 PW14 N.K. Sunderam was posted as Senior Manager in Indian Bank in 2001. He stated that Raj Kumar was Manager CC No. 21/12 04.12.2018 25 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 26 (Finance) in SC and ST Development Corporation. He stated that Raj Kumar had come in his office with a person and introduced him as Sushil Narain stating that one of the friends of Sushil Narain requires loan for a cloth shop at Chandni Chowk. He asked him to contact their Branch at Chandni Chowk where P. R. Pujari was the Chief Manager. He stated that on the request of Raj Kumar and Sushil Narain, he telephoned P. R. Pujari and told him that Raj Kumar, his known has come for loan with Sushil Kumar and he can consider the loan proposal on merit. He stated that after few days, Mr. Pujari came in his office where he told him that he only knows Raj Kumar and not the other party. He had referred Sushil Narain to P. R. Pujari because he knew Mr. Pujari very well. He identified the accused Sushil Narain and P. R. Pujari. He stated that P. R. Pujari was an honest and efficient officer and he had referred Sushil Narain to him since it was within the territorial jurisdiction of his branch. He admitted that he did not know Sushil Narain from before. 20.15 PW15 Vipin Kalra used to do the business of getting sanctioned the Car Loans from MNC Banks on commission basis. He stated that in 20012002, he had visited Chandni Chowk to distribute visiting cards to attract the needy party. There he met Rajesh Gupta, proprietor of M/s Shubham Saree Emporium Chandni Chowk and gave him visiting card. After sometime, Rajesh Gupta contacted him on his mobile phone CC No. 21/12 04.12.2018 26 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 27 and asked if he could get the credit limit sanctioned. In response to the said query, he told him that they would have to meet Sushil Narain. He alongwith Rajesh Gupta went to the office of Sushil Narain where he introduced Rajesh Gupta to Sushil Narain and told him that Rajesh Gupta was in need of credit facilities. He stated that Sushil Narain used to run an Educational Coaching Centre in Laxmi Nagar and he knew him for 67 years. He stated that he never had any commercial transaction with Sushil Narain. 20.16 PW16 Vinod Sharma had a chartered accountant firm in the name of V. Sharma and Associates at 1/6697, East Rohtash Nagar, Shahdara, Delhi. He stated that the firm was in existence till 1990 and thereafter he joined Delhi State Civil Supply Corporation in 1991. He stated that he never signed the audit report of M/s Paramount Insulation Company 78A, Dilshad Garden Delhi for the year 199899 purportedly issued by V. Sharma and Associates, neither the report bears the seal of his company as the company was not in existence in 1999. He stated that his firm never existed at the address C55/X3, Dilshad Garden, Delhi which address has been mentioned on the audit reports. He also denied of having submitted any balance sheets, trading, profit and loss account, list of debtors submitted by M/s Paramount Insulation Company and audit reports. He stated that the signatures and the stamps on the above are forged. He stated that he does not CC No. 21/12 04.12.2018 27 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 28 know any person by the name of Satish Chand Jain whose photograph has been affixed on the account opening form of M/s Paramount Insulation Co of which Satish Chand Jain has been shown as proprietor. He stated that he never conducted the audit of M/s Paramount Insulation Co nor he knows any person by the name of Sanjay Gupta proprietor of M/s Sharda Metals. He admitted that CBI did not take his specimen, handwriting and signatures during investigation. 20.17 PW17 Narender Kumar was Postman in Jhilmil Post Office since 1989. He stated that plot no.78A, Dilshad Garden falls in his area duty. Sanjay Gupta used to receive the dak of Sharda Metals which existed at the above address during the period from 1998 to 2002. He stated that Sanjay Gupta had asked him to bring the dak of M/s Aman Trading Company, M/s Paramount Insulation Co and M/s Paramount Insulation Pvt. Ltd which he had brought once and twice and given to him. However, the daks of these firms used not to come regularly. He stated that he never saw the board of M/s Aman Trading Company, M/s Paramount Insulation Co and M/s Paramount Insulation Pvt. Ltd at the above premises. 20.18 PW18 Ghanshyam Tiwari had a grocery shop on the ground floor at 78A, Dilshad Garden, Delhi for 2627 years. He stated that Sanjay Gupta had taken a portion of 78A, Dilshad Garden on rent where he established his factory of copper wire in the name of Sharda Metals in 199293. He closed the CC No. 21/12 04.12.2018 28 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 29 factory in the end of 2002. The premises belonged to Nehru Jain. One Kuldeep Gupta used to work in the factory of Sanjay Gupta. He stated that the photograph which is affixed on the Sale Deed of the property of 78A, Dilshad Garden, Delhi as Kuldeep Gupta is of Rakesh Verma and not of Kuldeep Gupta. He stated that he never heard about the firm Aman Trading Company. He stated that he does not know Sanjay Jain and Satish Chand Jain. He stated that P. N. Upadhyay used to work with Sanjay Gupta. He identified the accused Rakesh Verma and Sanjay Gupta in the Court. 20.19 PW19 Lakshmi Chand Sharma was the Assistant Manager, Indian Bank, Chandni Chowk Branch from 27.03.1999 to October 2002. He proved the account opening form of current account no. 9451 dated 11.04.2002 of M/s Paramount Insulation Company Ex.PW19/A and stated that the account was opened by P. R. Pujari the then Chief Manager. He stated that the current account was converted into OCC account no. 13030 on 11.04.2002. Satish Chand Jain was the proprietor of M/s Paramount Insulation Company. He was confronted with the dispatch register of the period from 13.06.2001 to 29.03.2003 and he stated that no letter was addressed /dispatched to the Branch Manager Jain Cooperative Bank Ltd, Nehru Complex on 06.03.2002. He handed over the copy of the dispatch register Ex.PW19/D to CBI vide memo Ex.PW19/C. He stated that if any letter is signed by the Chief CC No. 21/12 04.12.2018 29 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 30 Manager, it is sent to the dispatch section for onward transmission. However, no receipt / counter slip is given to the concerned person who gives the dak for dispatch. He stated that no irregularity was found in the account opened by P. R. Pujari except the present one.
20.20 PW20 Vikas Gupta was the Reader in the office of Sub RegistrarIV, Seelampur. He was confronted with the sale deed of the property at 78A, Dilshad Garden, Delhi bearing registration no. 2966 dated 30.12.2000 book no. 1 volume no. 3254 pages 73 to 79 registered in the name of Satish Chand Jain R/o 78A, Dilshad Garden, Delhi Ex.PW20/2. He stated that Sr. No. mentioned on the Sale Deed is not in his handwriting nor it bears his signatures. After seeing the original office copy of the sale deed dated 30.12.2000, he stated that on the reverse of the last page of original office copy of the sale deed Ex.PW20/A, he had recorded registration number in his own hand. He stated that Ex.PW20/2 does not match with the original office copy of the sale deed dated 30.12.2000 as the registration number is not in his hand, photograph of the purchaser affixed on Ex.PW20/2 is different from the photograph of the purchaser affixed on Ex.PW20/1, in the third line of Ex.PW20/1 property is mentioned 78A which is encircled red which fact is not depicted in Ex.PW20/2 and Sr. No. on nonjudicial paper for Rs. 15000/ seems to have been rubbed on CC No. 21/12 04.12.2018 30 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 31 Ex.PW20/2.
20.21 PW21 Preeti Jain stated that Nehru Jain is her brotherin law. She and her brotherinlaw live with their families at 78 A, Dilshad Garden, Shahdara, Delhi. Nehru Jain looks after the property. Neither she nor her brotherinlaw sold any portion of the aforesaid property. She stated that in 1992, front portion of the property was given on rent to Sanjay Gupta where he used to run a wire factory in the name of Sharda Metals. Sharad Jain used to work with Sanjay Gupta. She stated that in 200203, Sanjay Gupta vacated the tenanted premises. She stated that Satish Chand Jain, Sanjay Jain and Kuldeep Gupta never lived in the said property. 20.22 PW22 Inder Singh used to do property business in the name of Goyal Properties at D27, Main G.T. Road, Dilshad Garden Shahdara, Delhi in partnership with Nehru Jain. He was shown the sale deed Ex.PW20/2 bearing the photograph of Bihari and Sharad Jain. He stated that Bihari used to work with Sanjay Gupta, tenant of Nehru Jain at 78A, Dilshad Garden, Shahdara and he never saw Kuldeep Gupta, Satish Chand Jain and Sanjay Gupta living at the above premises. He handed over the IO the rent agreement between Sanjay Gupta and Nehru Jain vide memo Ex.PW22/A. 20.23 PW23 Nirmal Jeet Singh used to live on the first floor of the premises no. 77A, Dilshad Garden since 1994. He stated that Sanjay Gupta and Ram Mohan never lived at the premises CC No. 21/12 04.12.2018 31 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 32 no.77A, Dilshad Garden nor he executed the documents Mark 23/1. He stated that property no. 77A, is owned by him and his sisterinlaw Smt. Pavitra Kaur.
20.24 PW24 Mahesh Kumar stated that he used to do business of Copper Wire Drawing at 78A, Dilshad Garden Shahdara, Delhi in the name of M/s H.A. Enterprises. Vijay Kumar Gupta was his partner. He stated that in the year 2002, he and Vijay Kumar Gupta had purchased a plot measuring 468 sq.yds in equal shares at 78A, Dilshad Garden, Shahdara from Smt. Kanta Devi. He proved the copies of title deeds of the above plot Mark X2 and X3.
20.25 PW25 Surajmal Jain who had been working in Department of Delhi Archives, handed over the certified copy of the sale deed executed by Smt. Gauri Devi in favour of Mohan Lal, Raj Bahadur, A.Das and other Raj Bahadur of Dev Bandh registered vide no. 2373 measuring 4919 sq. yards dated 21.05.1958 Ex.PW25/2 vide memo Ex.PW25/1. 20.26 PW26 S. C. Khurana who was looking after the additional charge of SDM, Seelampur stated that vide letter dated 13.08.2004 Ex.PW26/1, he had informed CBI that Bijender Patwari was not posted in North East (comprised of sub division Seelampur, Seemapuri and Shahdara) during the period 20012002.
20.27 PW27 Niranjan Singh was Area Manager, MTNL, Shahdara in September 2004. He stated that he cannot tell in whose CC No. 21/12 04.12.2018 32 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 33 name telephone no. 4057740 was installed as the record has faded.
20.28 PW28 G. L. Lamba was UDC in election office, Assembly Consetiuency No. 44A. He proved the letter dated 03.06.2004 D168 Ex.PW28/1 and stated that identity card no. DL/04044/163924 in the name of Satish Chand Jain R/o 78 A, Dilshad Garden, Delhi was not issued from their electoral office at Kishan Kunj.
20.29 PW29 Mukesh Rana stated that Sanjay Gupta was his school time friend. He had once joined the business of copper wire drawing with Sanjay Gupta which was being run from the premises 78A, Dilshad Garden. After 34 months, he separated himself from the business. He stated that to his knowledge, no other firm functioned from 78A, Dilshad Garden, Delhi. Sharad Kumar @ Satish Chand Jain had worked in the office of Sanjay Gupta. He stated that it is not in his knowledge if M/s Paramount Insulation company existed at 78A, Dilshad Garden, Delhi.
20.30 PW30 Ramphal was Zonal Inspector MCD, House Tax Department in 2004. He handed over the documents to CBI. He stated that he had inspected the premises no. 78A, Dilshad Garden, Delhi and given his report dated 10.03.2003 Ex.PW30/A1. He proved the copy of the house tax bill and assessment order Ex.PW30/B and Ex.PW30/C (D178) in the name of Kanta Devi Jain, Vijay Kumar Gupta and Nisha CC No. 21/12 04.12.2018 33 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 34 Gupta, Preeti Jain and Poonam Jain, Nehru Jain, Manish Jain. He stated that whenever there are additions / alterations in any building within the jurisdiction of MCD or change in ownership, the officials of MCD visit the property for the purpose of house tax and prepare the inspection report but they do not obtain the signatures of the owner. 20.31 PW31 Ram Kishan was Tehsildar Nazul DDA in July, 2004.
He sent the letter dated 22.07.2004 Ex.PW31/A (D158) in response to the letter of CBI dated 20.07.2004 whereby he provided the details of Khasra number etc of the property no. 78A, Dilshad Garden, Jhilmil Tahirpur. He stated that no Patwari named Bijender was posted in his zone during the period from January 1999 to March 2002 and that the khasra girdawari which was enclosed with the letter of CBI was not issued from Nazul section. He stated that the khasra girdawari mark PW31/A (D53) is a false document because after urbanization of village Jhilmil Tahirpur in 1988, no girdawari took place. He stated that property no. 78A, was in khasra number 466/232443/1 (201), 466/232443/2 (010), 466/232443/3 (019), 466/232443/4 (09) and 466/232 443/5 (018). He stated that khasra no. 1076/5/2/403 falls about 2 km away from property no. 78A, Dilshad Garden as per the Aks sizra. He stated that the sale deed Ex.PW15/DA is in respect of property bearing khasra no. 1076/5/2/403.
CC No. 21/12 04.12.2018 34 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 35 20.32 PW32 S.K. Soni was the Vigilance Officer in Indian Bank in 2002. He conducted the Vigilance enquiry and gave his report Ex.PW32/A. He stated that he could not find any connivance of the accused P.R.Pujari with the other accused persons. He stated that as per the bank procedure, information regarding credential of the borrower can be taken orally. He stated that on 13.03.2002, a note Ex.PW32/DA was prepared by P.R. Pujari. Visiting card Mark Ex. X of Sushil Narain was attached with the note Ex.PW32/DA. He stated that he tried to contact Sushil Narain at the address given in the visiting card but he was not available. He stated that there was no panel in the bank to verify the financial capability of the borrower. He admitted that report Ex.PW32/DA is not the sole criteria for grant of loan and other enquiries are also made.
20.33 PW33 Mahender Singh was the Assistant Manager in Indian Bank, Chandni Chowk Branch in 2002. He stated that P.R. Pujari had signed a letter dated 16.03.2002 Ex.PW33/A addressed to M/s Paramount Insulation Co. He also proved the note dated 20.03.2002 Ex.PW33/B (D29) bearing the signature of P.R. Pujari and identified the signature of P.R. Pujari at point A on the back of credit report Ex.PW33/C (D
34). He also proved the handwriting and signatures of G. Sriram, Assistant Manager addressed to the Chief Manager D26 Ex.PW33/D. He proved the credit report D37 CC No. 21/12 04.12.2018 35 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 36 Ex.PW33/E which was in the hand of G. Sriram and the signature of P.R. Pujari. He also proved the note dated 09.04.2002 (D36) Ex.PW33/F in the writing of Sh. G. Sriram and the sanction order in the writing of P.R. Pujari. He also proved the note dated 19.03.2002 (D28) Ex.PW33/G in the hand of G. Sriram. He stated that Paramount Insulation Co., proprietor Satish Chand Jain, had opened an account vide account opening form Ex.PW19/A with the permission of P.R. Pujari. He proved the godown inspection register Ex.PW33/J pertaining to Paramount Insulation company for the period from 05.07.2002 to 27.11.2002. He was shown the cheques D75, D78, D79 to D85, D87 to D96 and D98 to D113 Ex.PW33/K1 to Ex.PW33/K35 issued from the account no. CC 13030 of M/s Paramount Insulation Co and he stated that these cheques were cleared by the bank under the signatures of the bank officials.
20.34 PW34 Mohd. Iqbal Ahmad had a Chemist shop at G1, Aditya Corporate Plaza, Karkardooma Community Centre, Delhi. He stated that he had purchased the shop from Sanjay Mittal in January 2003 for Rs. 17,10,000/. He had made the payment through pay order. He proved the sale agreement Ex.PW34/A, possession letter Ex.PW34/B and certificate of transfer Ex.PW34/C bearing the photograph of Sanjay Mittal and his signatures.
CC No. 21/12 04.12.2018 36 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 37 20.35 PW35 A. Satender Nath was the Assistant General Manager, Circle office, Delhi in 2004. He stated that Indian Bank had launched a Traders Finance Scheme in 2000 to make the credit available to the traders easily. Some branches were identified for lending under this scheme. Chandni Chowk branch was the focus branch which was being headed by the Chief Manager Scale - IV in 2002 who had powers to lend upto Rs. 10 lacs in the form of overdraft, Rs. 50.0 lacs in the form of OCC and Rs. 5 lacs as term loan. The OCC was to be secured by stock as well as book debts as primary security. Additional security in the form of immovable properties NSCs etc were required to be taken to cover atleast 100 125% of the sanctioned limit. He proved the circular Ex.PW35/A dated 11.10.2000 (D217 32 pages). He stated that the loan under this scheme could be given to finance the working capital required by the trader. The credentials of the traders / borrower were required to be verified through their audited balance sheets, Sales Tax Return, Income Tax Return etc. If the party was having a bank account with any other bank, credit report from that bank was to be obtained by sending a letter to the previous bank either through post or through any of the staff of the bank but not through the party. The collateral securities offered were to be verified either by the branch manager or through any other officer physically. Stock / book debts were also to be verified periodically by the CC No. 21/12 04.12.2018 37 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 38 Branch manager or the officer. He stated that it was not for the manager to go and personally post the letter in the post office and the dak for this purpose was dealt by the subordinate staff.
20.36 PW36 Neeta Rastogi was the panel advocate of Central Bank of India. She had submitted a legal scrutiny report relating to the property situated at Karawal Nagar. She stated that Sanjay Jain had come to collect the report. She stated that Sanjay Gupta had asked her if she knew anyone to get the loan from the bank. She stated that she knew Sushil Narain who had told her that he was the director a coaching institute at Laxmi Nagar. She had conducted a legal search of his property for State Bank of Patiala, Laxmi Nagar Branch, Delhi and during that time Sushil Narain had informed her that he could arrange loans for any interested person. Consequently, she suggested the name of Sushil Narain to Sanjay Jain as he was interested in taking loan. She stated that she does not know if Sushil Narain was the agent of the bank as she did not know him personally nor had dealings with him.
20.37 PW37 M.C. Kochar was on the panel of Indian Bank since 1995. He proved his legal opinion dated 02.03.2002 Ex.PW37/A given to Indian Bank, Chandni Chowk Branch. He stated that sale deed dated 27.12.2000 in favour of Satish Chand Jain was registered with the office of SubRegistrar particulars of which he had mentioned in his legal opinion.
CC No. 21/12 04.12.2018 38 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 39 He stated that he had verified the particulars of photocopy of the sale deed provided to him by the Bank with the records of the SubRegistrar office, Seelampur with regard to the property bearing no. 78A, Dilshad Garden, Delhi. 20.38 PW38 Hari Kishan Singhal stated that on 20.01.2003 Sanjay Mittal and Deepak came to him and asked him to introduce the account in Central Bank. Rajesh Gupta, his cousin knew that he had account in Central Bank of India, Pandav Road, Vishwas Nagar, Shahdara, Delhi. He introduced the account of Sanjay Mittal bearing no. 912 on 27.11.2003 vide Ex.PW38/A. He stated that the photograph on the account opening form is of Sanjay Gupta. He identified the accused Sanjay Gupta in the Court. He stated that the specimen signature card of Sanjay Mittal Ex.PW38/A1 also bears the photograph of Sanjay Gupta at point A. He stated that he is not related to Sanjay Gupta and he had seen him for the first time in the Bank when he introduced the account. 20.39 PW39 Mrs Uma Aggarwal was the Architect and on the panel of Indian Bank. She proved the valuation report Ex.PW9/A (D19 dated 06.03.2002) in respect of property no. 78A, Khasra no. 1076/5/2/403 Dilshad Garden, Delhi assessing the valuation as Rs. 56,02,000/. She was also confronted with the sale documents of a shop on the ground floor at plot no. 4, Karkardooma Community Centre, Delhi in favour of Sanjay Mittal and she stated that the documents CC No. 21/12 04.12.2018 39 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 40 were executed on 20.09.2002 for Rs. 17 lacs. The initial allotment agreement Ex.PW39/A2 bearing the photograph of Sanjay Mittal at point X was executed between her and Sanjay Mittal on 20.09.2002. She identified the accused Sanjay Gupta and stated that he was the person whom she had sold the shop. She admitted her signature on the flatbuyers agreement dated 21.01.2003 Ex.PW34/A, possession letter Ex.PW34/C and stated that vide this agreement Ex. PW 34/C, Sanjay Mittal had transferred the shop in the name of Iqbal Ahmad.
20.40 PW40 Kapil Marwah was the Chartered Accountant. He stated that he knew Sanjay Gupta who was dealing in Copper Wire. He stated that Sanjay Gupta came to his office with finance document of a company namely M/s Paramount Insulation Co and told him that the company belongs to his nephew and his nephew intends to take some loan. Finding the documents in order, he referred him to P. R. Pujari, the then Branch Manager of Chandni Chowk Branch of Indian Bank whom he knew. Sanjay Gupta went to the Branch and later he told him that Mr. Pujari would deal with him directly without his involvement which fact was also conveyed to him by Mr. Pujari. He prepared the credit monitory assessment data of M/s Paramount Insulation Co. and gave to the accused Sanjay Gupta after charging Rs. 1.2 lacs. He identified the accused Sanjay Gupta. He stated that later he came to know CC No. 21/12 04.12.2018 40 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 41 that the loan was sanctioned to the company M/s Paramount Insulation Co. He stated that he had stated to the CBI in his statement that the name of nephew of accused Sanjay Gupta was Satish Chand Jain. He stated that he does not know Pankaj Garg. He denied that the documents were furnished by Pankaj Garg and not by Sanjay Gupta. He admitted that he did not ask Sanjay Gupta to call his nephew in his office. He stated that the documents on the basis of which he had prepared the data did not disclose the name of the owner of the company.
20.41 PW41 Rajesh Gupta had a business of Sarees in the name of M/s Shubham Saree Emporium at Chandni Chowk. He stated that in 1998 his friend Vipin Kalra had introduced him to Sushil Narain for getting a loan facility from Indian Bank, Chandni Chowk Branch. Sushil Narain took him to the branch where he introduced him to the accused P.R. Pujari, the branch Manager. He showed him his loan file who asked him to come on the next day. On the next day, P.R. Pujari assured him that his work would be done. Therafter a limit a of Rs. 15 lacs was sanctioned in his name. He stated that after sometime he received a call from the bank asking him if he had introduced one S.K. Jain in opening of an account which he replied in affirmative. He was confronted with the account opening form of Paramount Insulation Co. Ex.PW19/A (D
46) and he stated that he had signed at point B as introducer.
CC No. 21/12 04.12.2018 41 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 42 He proved his statement recorded u/s 164 Cr.P.C. He identified the accused Sanjay Gupta as Sanjay Jain and stated that he was the person who had come to him to introduce him in the Bank for opening of the bank account. He stated that he did not know Sanjay Gupta from before. He stated that he means S.K. Jain as Sanjay Jain. He stated that before introducing the account, he had verified about Sanjay Jain from Sushil Narain who told him that Sanjay Jain is known to him and therefore he gave the introduction for Sanjay Jain in the Indian Bank. He admitted that Sushil Narain never pressurized him to introduce Sanjay Jain. He stated that he introduced Sanjay Jain on the current account opening form at his shop itself which was a blank form without any name and photograph.
20.42 PW42 Kaushal Kumar Jha was posted as LDC in Delhi Treasury. His duties were to issue Stamp Papers from the Treasury to Sale counter. He handed over the certified photocopy of the stamp paper issue register of page 332 Ex.PW42/A1 to CBI vide memo Ex.PW42/A (D189) showing the entry at srl. no. 37910 regarding sale of stamp papers of Rs. 32,000/ in the name of S.C. Jain S/o M.N. Jain R/o 78A, Dilshad Garden, Delhi.
20.43 PW43 Balwan Singh Vashisht was posted as SubRegistrar IV, Seelampur on 10.07.2003. He explained the procedure of registration of documents. He was confronted with the CC No. 21/12 04.12.2018 42 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 43 original sale deed of property no. 78A, Dilshad Garden, Delhi executed by Kuldeep Gupta S/o Nanu Mal R/o 78A, Dilshad Garden, Delhi in favour of Satish Chand Jain S/o late N. M. Jain R/o 78A, Dilshad Garden, Delhi vide registration no. 2966 dated 30.12.2000 book no. 1 volume 3254 page 73 to 77.
20.44 PW44 Mahinder Kumar was the postman in the area of Dilshad Garden, Delhi where plot no. 78A, Dilshad Garden, Delhi falls. He stated that Sharda Metal was operating from the said premises. He identified the accused Sanjay Gupta and stated that on the asking of Sanjay Gupta he used to bring the dak of M/s Aman Trading Company, M/s Paramount Insulation Co and M/s Paramount Insulation Pvt. Ltd. He stated that he had taken the dak 23 times for these companies at the said premises but he had not seen the sign boards at the above premises. He stated that M/s Sharda Metals had its office on the first floor and there was no sign board even of M/s Sharda Metal.
20.45 PW45 Sanjay Jain stated that M/s Arihant Industries is his firm which was earlier situated at Karawal Nagar Extension, Delhi. He stated that he had introduced the current account in the name of M/s Paramount Insulation Pvt. Ltd, 78A, Dilshad Garden, Delhi in Vysya Bank Ltd, Yamuna Vihar Branch vide account opening form Ex.PW10/A on the asking of P. N. Upadhyay who used to work with him since 1998.
CC No. 21/12 04.12.2018 43 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 44 He stated that P. N. Upadhyay had brought a person whose photograph is affixed on the account opening form at point X at his office. He went to the bank and made the signatures on the form. He stated that he never met either Sanjay Gupta or Deepak Bansal prior to opening of the account. He even does not know any person by the name of Sharad Kumar Jain, proprietor M/s Hindustan Industries. He stated that he had introduced the account of M/s Hindustan Industries at the instance of accused P. N. Upadhyay. He stated that when he went to the bank, accused P. N. Upadhyay introduced him to Sharad Kumar Jain and told him that he is known to him. He denied that he had business relations with Sharad Kumar Jain or he knew him before. He denied that P. N. Upadhyay never asked him to introduce the above accounts. 20.46 PW46 Mahavir Singh Dagar was the subregistrar, Seelampur during the period from December, 2000 to September 2001. He was confronted with the original sale deed dated 30.12.2000 purported to have been executed by Kuldeep Gupta in favour of Satish Chand Jain regarding the property bearing no. 78A, Dilshad Garden, bearing registration no. 2966 dated 30.12.2000 book no. 1 volume 3254 page 73 to 77 and he stated that the sale deed does not bear his signature.
20.47 PW47 Ramesh Chandra was the handwriting expert. He examined the questioned documents with the specimen CC No. 21/12 04.12.2018 44 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 45 handwriting/signatures of accused Sharad Kumar Jain Mark S1 to S15, Sanjay Gupta mark S16 to S136, Rakesh Verma Mark S140 to S149, admitted signatures of Deepak Bansal Mark A1 to A8, P. N. Upadhyay mark A9 to A11, printed impressions mark SN1 to SN2 typed script mark STP 1 to STP5, stamp impression mark SS1 to SS3, SS1 to SSI3, SSI 1A, SSI3A, SSI1B, SSI1C and SSI4 and gave his reports Ex.PW47/A43 (D192) and Ex.PW47/A44 (D233). He stated that the documents of this case were also examined by I.K. Arora, Dy. GEQD independently and he had come to the same conclusion. He submitted the detailed reports giving the detail reasons Ex.PW47/A45 and Ex.PW47/A46 (part of D
233).
On being cross examined, he admitted that some of the documents sent to them were original and some were photocopies. He admitted that he had not asked for the original documents from the IO. He stated that if the material is sufficient, definite opinion can be given by an expert. He denied that no opinion can be given in respect of signatures and handwriting on the photocopies of the documents. He, however, admitted that in the photocopies of the documents, there is always a possibility of manipulation of written content as well as signatures / handwritings. He then volunteered if precautions are taken by the handwriting expert, there are methods to detect such tampering. He stated CC No. 21/12 04.12.2018 45 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 46 that the characters in the handwriting and signatures may differ sometimes but the handwriting identifications / characteristic will remain the same.
20.48 PW48 Jayanti Lal Jain was the General Manager in Indian Bank, Headquarters, Chinnai in 2004. He accorded the sanction for prosecution of the accused P.R.Pujari vide sanction Ex.PW48/A. He stated that an internal inquiry was also conducted, file of which was placed before him before he accorded the sanction.
20.49 PW49 Sushil Kumar Mehrotra was posted as Chief Manager in Central Bank of India, Shahdara Branch in 2003. He handed over the account opening Form of SB A/c no. 912 of Sanjay Mittal, Specimen Signature Card, Credit voucher dated 24.01.2003 of PO No. 028132 of Rs. 17,10,000/ issued by IDBI, Cheque no. 002071 dated 29.01.2003 for Rs. 10 lacs favouring Deepak Bhatia, no. 002072 dated 29.01.2003 for Rs. 7 lacs favouring Deepak Bhatia and cheque no. 002073 dated 29.01.2003 for Rs. 10,000/ issued by Sanjay Mittal and Statement of account no. 912 for the period from 01.01.2003 to 08.07.2003 Ex.PW49/A4 (D220). He stated that the account no. 912 was allowed to be opened by the Officer of the Bank on 23.01.2003 vide account opening form Ex.PW49/A1. He stated that the photograph on the account opening form is that of Sanjay Gupta accused present in the Court. He also proved the specimen signature card CC No. 21/12 04.12.2018 46 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 47 Ex.PW49/A2 bearing the photograph of Sanjay Gupta at point X. He stated that in 2002, Naresh Aggarwal and P. N. Upadhyay had approached Central Bank of India, Shahdara Branch for obtaining credit facilities in the name of Shakti Traders. He made certain inquiries but they could not give any satisfactory reply and thereafter he declined the proposal. He identified the accused Keshav Sharma as Naresh Aggarwal. He also identified the accused P. N. Upadhyay. He admitted that Sanjay Gupta was never produced before him and he has seen him for the first time in the Court. 20.50 PW50 Balwan Singh Vashisht was SubRegistrar IV Seelampur on 10.07.2003. He was confronted with the GPA executed by Mohan Lal & Ors in favour of Kuldeep Gupta, notarized by Ram Kumar Gupta Ex.PW47/A27 (D48). He was also confronted with the authenticated office copy of the sale deed Ex.PW20/1 (D224) executed by Kuldeep Gupta in favour of Satish Chand Jain regarding the property no. 78A, Dilshad Garden as well as the original sale deed Ex.PW20/2 (D47) and after seeing both of them he pointed out the following differences:
(i) Photograph of purchaser Satish Chand Jain on original Sale Deed is different from the authenticated office copy.
(ii) Authenticated photocopy of office record i.e. Ex.PW20/1 bears signatures of Kuldeep Gupta at two places on first page whereas alleged original i.e. Ex.PW20/2 bears only CC No. 21/12 04.12.2018 47 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 48 one signature on first page.
(iii)There is some difference with respect to thumb impression with respect to Kuldeep Gupta on first page and on reverse.
(iv) There is difference in treasury stamp.
(v) Stamp number is mentioned on the stamped of denomination of Rs. 10,000/ and above and serial numbers on stamp on first two pages appeared to be rubbed.
(vi) Treasury stamp on alleged original i.e. Ex.PW20./2 is also different.
He stated that Ex. PW20/2 is not genuine and correct.
20.51 PW51 Ms. Meenu Pathak stated that accused Tarun Khanna is her real brother. Her husband Narender Pathak died on 13.06.1994. Sanjay Gupta was the proprietor of M/s Sharda Metals and friend of her husband. She stated that after the death of her husband, she started living with her father, brother and daughter at C55/X3, Dilshad Garden on rent where they lived for 45 years. The owner was known to the accused Sanjay Gupta. She stated that Tarun Khanna used to work in the factory of Sanjay Gupta. She stated that at the instance of accused Sanjay Gupta, they shifted to Jaipur as there was some problem in the business. After 1 or 2 months, they returned to Delhi. She stated that Pankaj Garg was the nephew of accused Sanjay Gupta. Nehru Jain and Inderpal Singh were the friends of accused Sanjay Gupta. She stated CC No. 21/12 04.12.2018 48 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 49 that Tarun Khanna was not satisfied with the job he was doing with Sanjay Gupta.
20.52 PW52 S.C. Tyagi was the Manager in Indian Bank, Zonal Office in 2004. He was with the CBI team when the specimen signature and thumb impression and writing of accused P. N. Upadhyay were taken by CBI in his house vide Ex.PW52/A, Ex.PW52/B and Ex.PW52/C. 20.53 PW53 J.S.Kohli was the Senior Manager in Allahabad Bank, Okhla Branch in May, 2003. He had accompanied at the residence of someone from where CBI recovered some documents, computers etc. He stated that in his presence specimen signature of Pankaj Garg were taken vide Ex.PW53/A and Ex.PW53/B. 20.54 PW54 N.K. Jagota was the Assistant Manager in Syndicate Bank in December, 2003. He was with the CBI team when the specimen signatures and handwritings of Sharad Kumar Jain Ex.PW54/A (D599) earlier marked as PW47/PX2 and Sanjay Gupta Ex.PW54/B (D600) earlier marked as PW47/PX17 were taken.
20.55 PW55 Yogendra Singh was the Lab Assistant in CFSL, CBI.
He on the request of CBI took the finger prints of accused persons namely Sharad Kumar Jain, Sanjay Gupta and Deepak Malhotra i.e. SFP1 to SFP6 Ex.PW55/B and Ex. PW 55/C and Ex. PW 55/D. CC No. 21/12 04.12.2018 49 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 50 20.56 PW56 S.K. Gupta was the Assistant Manager, Syndicate Bank, Khan Market. In his presence, thumb impressions and specimen signature SFP7 to SFP8 of Rakesh Verma Ex.PW56/A, S140 to S149 of Rakesh Verma Ex.PW56/B and S175 to S199 of Tarun Khanna @ Sonu Ex.PW56/C were taken. He stated that he was introduced to the accused persons but no orders of the Court were shown to him qua the permission to take their thumb impressions/ specimen signatures. He stated that he cannot identify those persons as considerable time has elapsed.
20.57 PW57 P. N. Swarup was Manager in Indian Bank in December, 2004. In his presence, specimen signatures/ handwritings of Tarun Khanna Ex.PW57/A(D603) were taken by CBI. He stated that he cannot identify the person whose specimen signatures/handwritings were taken due to lapse of time.
He stated that S.K. Vermani who was posted as Circle Head (Vigilance Department) had lodged a complaint Ex.PW57/B on 28.05.2003 with CBI pertaining to fraud in Chandni Chowk Branch of Indian Bank committed by Satish Chand Jain Proprietor of M/s Paramount Insulation Co and Sanjay Jain.
20.58 PW58 Gagan Parvesh was Manager in Syndicate Bank, Khan Market in May 2004. In his presence, specimen signatures/ handwritings of Sanjay Gupta Ex.PW58/A (D CC No. 21/12 04.12.2018 50 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 51
600) in 20 sheets Mark PW47/PX76 to PW47/PX95 were taken by CBI on 20.05.2004. He stated that no permission from the Court was shown to him for taking specimen signature of the person.
20.59 PW59 Bhagwan Sahai Prajapat used to look after the electrical work of Canara Bank at Gopi Nath Marg, Jaipur. He on the request of AGM, Balbir Chander accompanied the CBI officer to locate an address at Mansarover Garden. He stated that in that house specimen handwriting/signatures of a person namely Sanjay Gupta were taken on the sheet S96 to S136 marked PW47/PX107 to PW47/PX136 Ex.PW59/A. He identified the accused Sanjay Gupta.
20.60 PW60 B.M. Pandit was the Investigating Officer of this case.
He proved the FIR XP (D2 Ex.PW60/B). He stated that during investigation, he collected the documents from Indian Bank and other departments, recorded the statements of witnesses, obtained specimen signatures, thumb impressions of the accused persons, sent them to GEQD Chandigarh and CFSL, CBI. He also proved the letter dated 21.05.2004 Mark PW47/PX (D191) of Alok Gupta, S.P Ex.PW60/D containing the questioned writings/signatures with specimen/admitted writings/signatures of the accused persons on various documents and the questionnaires sent to the laboratory and a letter PW47/PX1 (D232) sent alongwith annexures 1 to 4 collectively Ex.PW60/D1 (D232). He stated that a pocket CC No. 21/12 04.12.2018 51 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 52 diary was recovered from the residence of Sanjay Gupta at Jaipur in another case CC No. 14/12 (D628 27 sheets) Ex.PW60/E containing the telephone number and different amounts given to the accused Sushil Narain (portion X to X1). He stated that it could not be ascertained in whose handwriting portion X to X1 and other portions in the diary were written. He stated that the pocket diary was not sent to the handwriting expert alongwith the specimen handwriting for opinion. He stated that the diary indicated that accused Sanjay Gupta and Sushil Narain had relations. He also obtained sanction for prosecution against P. R. Pujari for prosecution and filed the chargesheet.
On being cross examined, he admitted that the document Ex.PW20/1 was submitted as collateral security before the Indian Bank for OCC. He admitted that panel advocate for Indian Bank, M.C. Kochar had verified the execution of sale deed of the above property in the office of SubRegistrar Seelampur and filed his report. He admitted that the replica of sale deed submitted before the Indian Bank looks like the original document. He stated that the mutation as advised by the panel lawyer was not taken and khasra girdwari was accepted in place of mutation document which was found forged. He admitted that OCC was sanctioned by the Indian Bank on the basis of book debt and stocks in the godown. He stated that during investigation, he did not find CC No. 21/12 04.12.2018 52 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 53 any evidence to show that on account of sanction of OCC, accused P.R. Pujari received any financial benefit from any person. He stated that he does not know if any preliminary inquiry was conducted by CBI before registration of FIR. He admitted that he had visited the property bearing no. 78A, Dilshad Garden, Shahdara and met Nehru Jain, owner of the property. He stated that he had arrested Pankaj Garg in another case. He was confronted with the documents i.e. rent agreement Ex.PW7/A1 (D155) and Surrender of possession (D156) Ex.PW7/C and stated that he had seized the documents from Inder Pal Singh, partner of Nehru Jain which show that Sanjay Gupta was the tenant of Nehru Jain in the above property. He stated that the rent agreement was executed on 03.08.1992 and Sanjay Gupta surrendered the possession on 12.02.2002. He stated that when he visited the property, the premises was not in the occupation of Sanjay Gupta. He was confronted with the specimen signature card of Sharda Metals D229 Mark X1 Ex.PW60/DA2/2, account opening form D230 Mark X Ex.PW60/DA2/3 and a form regarding sole proprietorship of Sanjay Gupta D231 Mark X2 Ex.PW60/DA2/4 and he stated that he had seized the documents from Central Bank of India, Janpath Branch. He stated that the account opening form was submitted on 29.06.1989 and the address of Sharda Metals was shown as 78A, Dilshad Garden, G.T. Road, Shahdara. He stated that he CC No. 21/12 04.12.2018 53 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 54 had taken specimen signature/handwriting of accused Sanjay Gupta 23 times but he does not remember whether at that time he was in police custody in another case. He stated that specimen signature of Sanjay Gupta were taken in his house at Jaipur on 31.12.2003 in the presence of independent witness when he was not in police custody. However, no permission was taken from the Court for taking his specimen signature/handwriting.
He was confronted with the photocopy of election I card Ex.PW60/DA2/5 in the name of Satish Chand Jain D4 on which photograph of Pankaj Garg is affixed. He stated that Pankaj Garg was named in the FIR of another case but he was not made accused in that case because his signatures were not found on the incriminating documents. He, however, had questioned Pankaj Garg in respect of the above election I card and also from the electoral Office, Shahdara from where he had come to know that the said election I Card bearing No. DL/04044/163924 was not issued from the office. He stated that Pankaj Garg had told him that the above election I card was prepared by Sanjay Gupta. He had given his photograph to the accused Sanjay Gupta for making his passport and Sanjay Gupta misused his photograph in making the above election I Card. He denied that he was aware that the rent agreement and surrender of possession documents were forged. He stated that he had received the documents from CC No. 21/12 04.12.2018 54 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 55 Inderpal Singh at the instance of Nehru Jain. He stated that he had collected the circulars etc in respect of the procedure for sanction of loan/credit facilities. He stated that he does not remember if guarantor is also required to submit his photograph to the bank but he admitted that in this case no photograph of the guarantor was found in the bank record. He stated that Sanjay Gupta had signed the guarantee agreement impersonating as Sanjay Jain. He denied that on 30.07.2004 he and other CBI officers had given beatings to Sanjay Gupta as a result he sustained injuries and he got himself medically examined from a Govt. Hospital or that in that evening, advocate of Sanjay Gupta had talked to him on his mobile on this beating and thereafter he called Sanjay Gupta in his office on the next day and consoled him and because of this, he did not file any complaint against him. He stated that Rakesh Verma was the employee of Sanjay Gupta in Sharda Metals. He had told him that he is illiterate. He stated that Rakesh Verma had revealed that he had signed the sale deed in the name of Kuldeep Gupta at the instance of Sanjay Gupta. He stated that his signatures as Kuldeep Gupta were shown to him and thereafter his specimen signatures were taken. He stated that he does not know if accused Rakesh Verma was peon of Sanjay Gupta. He stated that accused Sharad Kumar Jain was confronted to Sriram who identified him as Satish Chand Jain CC No. 21/12 04.12.2018 55 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 56 proprietor of M/s Paramount Insulation Co. He stated that during investigation, he had come to know that sometimes drawing room of Nehru Jain at ground floor was being used by Sanjay Gupta for his official use where he used to have meetings with the bank officials. He admitted that Sharad Kumar Jain was a distant relative of Nehru Jain and employee of Sanjay Gupta. He admitted that Pankaj Garg is the relative of Sanjay Gupta and Pankaj Garg used to visit the factory premises of the accused Sanjay Gupta at 78A, Dilshad Garden. He stated that in his statement U/s 161 Cr.P.C,Pankaj Garg had stated that Sanjay Gupta had taken him to Canara Bank, Chanakya Puri Branch and introduced him to the bank officials as S.C. Jain and he had also taken him to the office of SubRegistrar Seelampur. He stated that when the specimen signatures and thumb impression of Sharad Kumar Jain were taken during investigation, he was in police custody in other case and while taking his specimen signature, he did not take any permission from Court nor gave him any warning before taking his signatures. He, however, stated that he had given his signatures voluntarily. He stated that he had taken admitted signature of accused Sharad Kumar Jain from Vysya Bank, Shahdara Branch, Delhi. He denied that accused Sharad Kumar Jain did not withdraw any amount from any bank out of the loan account and his photograph was misused without his knowledge.
CC No. 21/12 04.12.2018 56 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 57 He admitted that Sushil Narain was neither the employee nor the agent of the Indian Bank but he volunteered that he was in contact with P.R.Pujari, Sanjay Gupta and Rajesh Gupta for sanction of loan. He admitted that none of the documents seized during investigation bears the signatures/handwriting of Sushil Narain. He volunteered that name of Sushil Narain has appeared in a report prepared by P.R. Pujari with regard to credit worthiness of M/s Paramount Insulation Co. Ex.PW32/DA (D29). He admitted that before sanction of loan, stocks and books of accounts of applicant are examined by the Bank and taking collateral security is a condition precedent before sanction of loan which is examined by the bank officials and the documents are verified by the bank through the panel advocate and CMA report is submitted by the Chartered accountant. He admitted that Sushil Narain had no role in the preparation of CMA report. He admitted that none of the officials provided any documentary evidence in support of report Ex.PW32/DA (D29). He stated that the note Ex.PW32/DA was one of the consideration for grant of loan/credit facility. He stated that in 20022003, Tarun Khanna @ Deepak Bansal was aged about 20 years. He admitted that accused Tarun Khanna used to work on the instructions/dictates of Sanjay Gupta but he did not know if on refusal, accused Sanjay Gupta used to beat him and his CC No. 21/12 04.12.2018 57 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 58 sister Meenu Pathak. He admitted that the admitted signature of Deepak Bansal Ex.PW47/A43 (A1 to A8 D192) and admitted signatures of P. N. Upadhyay (A9 to A11) were not compared by handwriting expert with the specimen signatures of these persons. He admitted that no such query was sent by CBI to handwriting expert. He stated that specimen signatures of accused Tarun Khanna @ Deepak Bansal were taken by him while he was in police custody in another case and no permission from the Court was taken for taking his specimen signatures. He stated that the specimen signatures of P. N. Upadhyay were taken in the CBI office after summoning and no permission from the Court was taken before taking his specimen signatures/handwritings. He admitted that P.N Upadhyay had been working as Part time Accountant of accused Sanjay Gupta and he had merely followed the instructions of his employer Sanjay Gupta and that he had no role to play in the commission of offence. He stated that he did not carry out any investigation to find out if any person namely Deepak Bansal was existing or that Deepak Bansal was the brotherinlaw of accused Sanjay Gupta or that he had expired in a road accident on Delhi Jaipur High Way. He was also confronted with the statement Ex.PW60/A1/X1 and the documents PW47/DX2 to PW47/DX4 i.e. the applications for judicial custody remands, reply to bail application, application for grant of bail by CC No. 21/12 04.12.2018 58 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 59 Pankaj Garg Ex.PW60/A1/X2 (7 pages).
20.61 PW61 P.N. Singhal was posted as Cashier in Indian Bank, Chandni Chowk Branch. He brought the certified copy of the Statement of account of M/s Paramount Insulation Co. OCC A/c No. 13030 for the period from 12.04.2002 to 08.05.2003 certified by S.S. Jhand, Chief Manager Ex.PW61/A. He stated that he cannot say whether the statement of account Mark XX1 (D44) was issued from the Branch but he stated that the statement bears the rubber seal impression of the Bank. He proved another statement of account Ex.PW61/C and the letter Ex.PW61/B. He stated that the statement was generated from the computer. He stated that he did not check the correctness of the statement from the ledger books since they are not available in the bank and destroyed. 20.62 PW62 A.K. Sah was the Senior Scientific Officer in CFSL, CBI. He examined the documents and gave his report Ex.PW62/F alongwith the annexures Ex.PW62/G (22 pages).
21. The Court also summoned two witnesses:
CW1 is Hardeep Singh, Ahlmad brought the record of the case CC No. 14/12, RC No. 4E/2003/EOW1 titled CBI vs. Keshav Sharma and others and compared the photocopy of the election I Card in the name of Satish Chand Jain Mark PW11/1 (D45), photocopy of the sale deed Mark CW1/B (D
46) filed by the accused in CC No. 21/12 and a document D CC No. 21/12 04.12.2018 59 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 60 48 Mark CW1/C filed in CC No. 14/12, D57 Ex.PW15/DA (Sale Deed) filed in CC No. 21/12. He also brought the record of the case CC No. 15/12, RC No. 04E/2003/EOW1 titled CBI vs. Sharad Kumar Jain and compared the photocopy of the sale deed filed in CC No. 21/12 with D71 already Ex.PW29/DA2, photocopy in CC No. 15/12 marked CW1/E. CW2 Ms. Pushpa, Assistant Ahlmad in the Court of CMM, South East, Delhi brought the record of the case RC No. 7(E)/2003/EOW1 titled CBI vs. Deepak Malhotra and Others and compared the photocopy of the sale deed filed in CC No. 21/12 with the original sale deed (D44) from the record brought by her Ex.CW2/A, photocopy of seizure memo alongwith account opening form and specimen signatures cards filed in CC no. 21/12 with original documents (D56) brought by her Ex.CW2/B and photocopy of election I card in the name of Satish Chand Jain filed in CC No. 21/12 with the photocopy of the D57 from the record brought by her mark CW2/C. STATEMENT OF ACCUSED PERSONS U/S 313 CrPC
22. After the prosecution evidence, statements of all the accused persons were recorded u/s 313 Cr.PC. The entire incriminating evidence was put to the accused persons. They denied the incriminating evidence pertaining to their role in commission of offence and claimed their innocence.
CC No. 21/12 04.12.2018 60 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 61 22.1. Accused Sharad Kumar Jain @ Satish Chand Jain admitted that he was the employee of Sanjay Gupta @ Sanjay Jain alongwith the accused Tarun Khanna, Rakesh Verma and P. N. Upadhyay in his firm M/s Sharda Metals but he was not the proprietor of M/s Paramount Insulation Co in the name of Satish Chand Jain or in any other name nor he applied for any loan nor he visited the bank to apply for loan with Sanjay Gupta @ Sanjay Jain nor he was introduced as Satish Chand Jain nor he signed any loan application nor he submitted any document nor he has knowledge of the sanction of loan. He stated that he never utilized any fund. He stated that he did not have any account in Jain Cooperative Bank, Shahdara Branch nor he visited the said bank nor he has knowledge of any letter dated 09.03.2002 Ex.PW1/A (D22). He stated that his photograph was misused by someone without his knowledge for applying the loan in the name of M/s Paramount Insulation Co, in Indian Bank, Chandni Chowk Branch. He admitted that Nehru Jain is his cousin. He stated that Sanjay Gupta was tenant on the ground floor and first floor portion of the property 78A, Dilshad Garden belonging to Nehru Jain where he used to run the factory in the name of M/s Sharda Metal. He stated that he was not involved in any transaction of Sale Deed. He stated that he had given his ration card and photograph to Nehru Jain for making passport as he intended to visit Canada to meet his sister Madhu Jain. He admitted CC No. 21/12 04.12.2018 61 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 62 that Inderpal Singh was partner of Nehru Jain. He stated that PW47 did not properly examine the questioned documents and his report is without any reasonable basis. He, however, admitted that his specimen signatures, finger prints and thumb impressions were taken by the CBI. He stated that he does not know whether any firm by the name of M/s Paramount Insulation Co. was being run from the above address. He stated that he never diverted any funds nor entered into any criminal conspiracy nor caused any wrongful loss to the bank or correspondence wrongful gain to himself or any other person. He stated that in or around September/October, 2001, he had asked Nehru Jain to get him employed as he was unemployed. On the asking of Nehru Jain, he joined M/s Sharda Metals where he worked till November, 2002. After November, 2002, he left the job. In the year 2003, the CBI officers contacted him. Then, he came to know about the above bank transactions.
22.2. Accused Sanjay Gupta @ Sanjay Jain @ Sanjay Mittal answered every question either 'it is wrong' or 'it is incorrect'. He stated that he is innocent and has no connection whatsoever with the alleged conspiracy/commission of offence. He has been falsely implicated by some persons, who were inimical to him due to business rivalry, more particularly Nehru Jain, in whose place he was roped in connivance with the CBI officials. He had not stood guarantor in the matter for CC No. 21/12 04.12.2018 62 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 63 taking the loan in question. He stated that the report of the expert is false and suspect.
22.3. Accused Pravir Ranjan Pujari stated that in 20022003, he was posted as Chief Manager in Indian Bank Chandni Chowk Branch. Satish Chand Jain had applied for loan in the name of M/s Paramount Insulation Co. The applicant had represented himself as Satish Chand Jain. He did not know whether his actual name was Sharad Kumar Jain. He admitted that Sanjay Gupta @ Sanjay Jain had introduced Sharad Kumar Jain as Satish Chand Jain but he had introduced him as his cousin and not his employee. He stated that the loan application was signed by Sharad Kumar Jain as Satish Chand Jain as proprietor of the firm. He stated that enquires were made by the bank in accordance with the rules and all necessary precautions were taken and it was found that M/s Paramount Insulation Co. had been functioning at 78A, Dilshad Garden and trading in copper wires. After following the banking procedure by his subordinates, matter was put up before him and after consideration of entire material/documents, he sanctioned the loan in routine according to the norms of the bank. He stated that the property 77A, Dilshad Garden was not required to be mortgaged as collateral security, therefore, power of attorney of the property submitted by Sanjay Jain was accepted just to ensure that he has immovable assets. He stated that the sale deed was submitted at the time of availing CC No. 21/12 04.12.2018 63 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 64 loan but despite precautions, bank could not detect if the sale deed was signed by Sanjay Gupta as Inderpal Singh as witness. He stated that the sale deed was accepted bonafidely after enquiry through bank empaneled advocate. He stated that at the time of sanction of loan, the bank had sought report from Jain Cooperative Bank, Shahdara in respect of above account and after receiving the positive response, it was accepted but later on it revealed that no account was maintained by the party in Jain Cooperative Bank Ltd and the statement of account was manipulated by the loan applicant. He stated that as per the enquiry of his bank, property at 78A, Dilshad Garden was owned by Satish Chand Jain. He stated that as per the report submitted before the bank, M/s Paramount Insulation Co. had been functioning at 78A, Dilshad Garden. He admitted that N.K. Sundaram had introduced the accused Sushil Narain to him who was interested to get loan for one of his known for business. He admitted that P. N. Upadhyay was the accountant of Sanjay Gupta and he used to meet him during the loan transactions and assist Sanjay Gupta in showing the documents etc. He stated that Sharad Kumar Jain misrepresented himself as Satish Chand Jain and used the above documents before the Bank as collateral security to support his application for the sanction of loan. At that time he was not aware that the documents were forged. He admitted that Sanjay Gupta and CC No. 21/12 04.12.2018 64 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 65 Satish Chand Jain were referred to him by Kapil Marwah, Chartered Accountant and Rajesh Gupta was referred to him by Sushil Narain for loan but he stated that the bank after following the due procedure sanctioned the loan. He stated that he had acted in good faith in accordance with the rules of the bank. He had no connection with any of the accused persons. He relied on the reports / feedbacks of his subordinates and the reports of the valuer and panel advocate. He exercised his due diligence in the interest of the bank. He could not detect the forgery of documents and ill designs of the accused persons. He stated that he did not take any pecuniary advantage in any form from any of the accused persons nor the accused persons related to the loan transactions were even remotely connected to him in any way. He stated that he joined the bank in the year 1973 and served for a long period in different positions. In his entire career, he was awarded best ACRs for his performance. He had a clean record of about 37 years of service and there was no blot on his career prior to this case. Pertaining to this case also, a departmental inquiry was conducted by the bank and no finger was raised pertaining to his integrity or involvement in the commission of offence and therefore, he was not even suspended and was continued in service. On his retirement, all his post retirement benefits were released to him by the bank. The modus operandi of coaccused persons CC No. 21/12 04.12.2018 65 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 66 in this case was so professionalised that they not only committed the fraud with his bank but also committed the same fraud with the same modus operandi with three other banks and in those cases also, the other bank officials could not detect the fraud at the time of sanction of loans. 22.4. Accused Sushil Narain answered most of the questions 'I do not know' or 'it is incorrect'. He stated that PW6 never introduced Sanjay Gupta to him. He had met N.K. Sundaram in DSFDC only once and N.K. Sundaram had introduced him to accused P.R. Pujari but it was not for any loan. He knew Rajesh Gupta but he denied having any connection with the preparation of note sheet Ex.PW32/DA. He stated that he knew P.R. Pujari but he had not given any oral or written report with respect to the credentials of the borrower/guarantor mentioned in the note sheet Ex.PW32/DA. He stated that he did not have any role in the sanction of loan to Rajesh Gupta. He did not know Sanjay Gupta nor had any connection with any of the alleged transactions/allegations. He was not on the panel of bank in any capacity and did not have any authority to submit report regarding the credentials of the borrower. 22.5. Accused Tarun Khanna @ Deepak Bansal stated that he was not the employee of Sanjay Gupta but he had to work for him as he was supporting his sister financially. He did not know if accused Rakesh Verma @ Kuldeep Gupta, Sharad CC No. 21/12 04.12.2018 66 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 67 Kumar Jain @ Satish Chand Jain and P.N. Upadhaya were the employees of accused Sanjay Gupta. He answered most of the questions 'I do not know' or 'it is incorrect'. He, however, admitted that Meenu Pathak, his sister after the death of her husband used to live at C55/X3, Dilshad Garden, Delhi. He stated that she had been living on the mercy of Sanjay Gupta. He had to do whatever he was told to do by Sanjay Gupta and when he refused, he was beaten by Sanjay Gupta. He stated that his signatures/finger prints were taken forcibly by the IO while he was in custody in another case. He stated that at the relevant time, he was 1718 of age and had been living with his sister Meenu Pathak. His sister's husband had expired and they had no money or means of livelihood. Accused Sanjay Gupta used to pay the rent of the premises. He stated that he cannot read or understand English as he is not educated. 22.6. Accused P. N. Upadhyay stated that he was part time accountant of Sanjay Gupta. He used to maintain account books as per his instructions. He did not know Nehru Jain nor he knew whether the firms M/s Paramount Insulation Pvt. Ltd, M/s Paramount Insulation Co., Aman Trading Company and M/s Creative Conductors Pvt. Ltd were running at 78A, Dilshad Garden, Delhi. He stated that as a part time accountant, he used to prepare account books of the above companies on the basis of instructions and material supplied to him by the accused Sanjay Gupta. He denied having CC No. 21/12 04.12.2018 67 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 68 connection with form 60 Ex.PW8/C, Form DA1 Ex.PW8/D, pay in slip dated 19.02.2002 Ex.PW8/E, cheque Ex.PW8/F, application for issuance of DD Ex.PW8/G and pay order Ex.PW8/H issued in favour of Agarwal Associates (Promoters) Ltd. and Promoters Ltd. He stated that his specimen signature/handwriting were taken forcibly. He did not know if Sharad Kumar Jain had issued the cheques as Satish Chand Jain. He stated that S. K. Jain used to visit the premises of Sanjay Gupta. They used to send him (P. N. Upadhyay) to the bank to encash the self cheques. He after encashment used to hand over money to them. He stated that he was neither party to any criminal conspiracy nor had knowledge about the activities of the accused persons nor he received any pecuniary gain out of the said transactions. He had no knowledge about sanction of any loan or credit facility in favour of any person or firm involved in this case. 22.7. Accused Rakesh Verma @ Kuldeep Gupta admitted that in 1992 accused Sanjay Gupta had taken the premises 78A, Dilshad Garden on rent from Nehru Jain and established a business of copper wire in the name of M/s Sharda Metals and in 20012002 Sharad Kumar Jain @ Satish Chand Jain, Tarun Khanna, he (Rakesh Verma @ Kuldeep Gupta) and P.N. Upadhyay were the employees of Sanjay Gupta @ Sanjay Jain in his firm M/s Sharda Metals. He stated that flat no. C55/X3, Dilshad Garden was taken on rent by Sanjay Gupta. He CC No. 21/12 04.12.2018 68 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 69 admitted that accused Sharad Kumar Jain was the cousin of Nehru Jain and Nehru Jain had got Sharad Kumar Jain employed with Sanjay Gupta and Nehru Jain knew Sanjay Gupta, Tarun Khanna and P.N. Upadhayay. He stated that in the later half of 2001, he was called in the office of Sanjay Gupta where he was asked to sign number of blank papers on the pretext that government was taking over their factory and he would get a government job in the factory. He stated that he signed the papers in good faith on the instructions of Sanjay Gupta. He did not know even how to write his name. Accused Sanjay Gupta had written something on a piece of paper and after making practice for a while, he wrote the same on the stamp papers. He stated that no one in the name of Satish Chand Jain or Kuldeep Gupta used to live at 78A, Dilshad Garden, Delhi. He admitted his photograph on the sale deed of property no. 78A, Dilshad Garden, Delhi Mark X4 but stated that he had given his photograph, signatures and thumb impression / finger prints on the blank stamp papers/ papers on the asking of accused Sanjay Gupta. He stated that he did not receive any pecuniary benefit from any of the accused persons in any form. At any stage till his arrest, he was not aware that his signatures on blank papers had been misused by coaccused or somebody else. He stated that his specimen finger prints or thumb prints were never taken.
CC No. 21/12 04.12.2018 69 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 70 DEFENCE EVIDENCE:
23. Eight witnesses were examined in defence:
On behalf of Tarun Khanna 23.1. DW1 Shailesh Kumar Pandey was posted as Personal Banker in ING Vysya Bank, Yamuna Vihar. He brought the statement of account of M/s Paramount Insulation Pvt. Ltd, A/c No. 1111 for the period from 08.03.2000 to 20.02.2002 and copy of cheque dated 28.02.2002 Ex.DW1/A and stated that the account was closed on 20.02.2002. On behalf of Rakesh Verma 23.2. DW2 Ashok Kumar used to work in Sharda Metals. He stated that Rakesh Verma used to work there and his job was to do cleaning, making tea and maintaining papers etc. He was like a peon. He was not literate. He stated that Rakesh Verma used to tell him that M/s Sharda Metals was going to be taken over by the government. After sometime, he told him that the factory is closed.
On behalf of Sanjay Gupta 23.3. DW3 Hayat Singh was posted as Medical Record Technician in Safdarjung Hospital. He brought the admission and discharge register of the year 2004 which contains an entry about the admission of Sanjay Gupta in casualty as an outdoor patient. He stated that as per the record, Sanjay Gupta was brought in the casualty on 03.07.2004 at 8.35 PM and was issued OPD card Ex.DW5/A. He was referred to ENT on the CC No. 21/12 04.12.2018 70 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 71 alleged history of assault and fresh bleeding from his left ear.
He stated that after treatment, he was discharged. On behalf of Sanjay Gupta 23.4. DW4 Jaipal Singh was Kanoongo in DDA. He stated that the photocopy of registered sale deed was submitted by the parties in relation with the mutation of land. They do not have the original of the sale Deed.
On behalf of Sanjay Gupta 23.5. DW5 Raj Kumar was posted as SubRegistrar III, Asaf Ali Road, Delhi. He was confronted with the copy of the sale deed of the property no. 78A, Dilshad Garden, Shahdara, Delhi and he stated that certified sale deed is not found in the record as it pertains to the year 2000. He stated that as per the rules, record of applications for certified copies was weeded out. He stated that he had found the original sale deed of the above property in the office of National Archives, Government of NCT of Delhi, copy of which is Ex.DW5/A. On behalf of Sanjay Gupta 23.6. DW6 Rajesh Kumar was LDC in the office of Divisional Commissioner. He stated that the record of Stamp papers pertaining to the year 1984 has been weeded out in the year 2010. He proved the letter dated 22.12.2004 Ex.DW6/A in this regard.
23.7. Accused Sanjay Gupta examined himself as DW7 pursuant to his application u/s 315 Cr.P.C. He stated that he was tenant CC No. 21/12 04.12.2018 71 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 72 of Nehru Jain at 78A, Dilshad Garden, from January 1988 to July 1995. From there he used to run a firm M/s Sharda Metals. He used to live at Bihari Colony. Since he suffered loss in the business, he closed the business in July 1995. He had to return the loan of the market and the bank so he filed a case of insolvency in the Court at Tis Hazari. It was decided in his favour on 30.03.2001. Pursuant to that order, discharge order was passed by the Court vide Ex.DW7/A. He stated that in 1995, he shifted to Jaipur. On 17.12.2003 some CBI officers came in his house at Jaipur and brought him to Delhi. They obtained his police custody. He was tortured and his thumb impressions, signatures and handwritings were taken on many blank papers. He was released in February 2004. He then went to Nehru Jain. He told him that everything was done by him after conniving with Pankaj Garg. IO also knows about it. He came to know that Pankaj Garg was also arrested and he remained in jail for three months. He stated that CBI in response to the bail applications filed by Pankaj Garg had taken stand that Pankaj Garg was master mind. He proved the documents of the CBI mark X1 collectively (12 pages). He stated that landlord of the house of Pankaj Garg was DIG in UP Police Meerut zone. Earlier he was in BSF. IO of this case also remained in BSF. DIG had influenced the IO. He stated that he used to receive calls from CBI. On 03.07.2004 he was beaten by the IO and SP Alok Mittal. He got himself CC No. 21/12 04.12.2018 72 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 73 examined at Safdarjung Hospital vide MLC Mark X3. He told it to his lawyer Gurdyal Singh. On 06.07.2004, he was called in the CBI office where he was asked not to make any complaint. Even on the next day he was called and detained. His signatures on some blank papers were taken. He was forced to write that he would not complain. He also filed certified copy of the proceedings of petition no. 200/99 dated 23.08.1999 titled Sukhbir Singh vs. State u/s 276 of Indian Succession Act for grant of probate in respect of Will wherein Nehru Jain had appeared as surety alongwith Sharad Kumar Jain Ex.DW7/B. He stated that the loan documents are in the hand of Pankaj Garg and bears his photographs. The original sale deed also bear his photograph.
On being cross examined, he stated that he never saw the DIG meeting and influencing the IO. It was told to him by Nehru Jain. He is not in possession of any document to show that IO had earlier worked in BSF. He stated that he had met Nehru Jain in Tihar Jail. He denied that loan documents do not bear the photograph of Pankaj Garg.
23.8. DW8 Hardeep Singh was Ahlmad of this Court. He brought the record of the case CC no. 14/12 titled CBI vs. Keshav Sharma and ors in which Meenu Pathak was examined as PW58. He tendered the copy of her statement Ex.DW8/A. CC No. 21/12 04.12.2018 73 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 74 ARGUMENTS AND CONTENTIONS:
Arguments on behalf of CBI
24. Ld. PP for CBI Sh. Vipin Kumar reiterated what has been alleged in the chargesheet and submitted that vide Circular Ex. PW 35/A, a Trade Finance Scheme was launched by the bank which empowered the Chief Manager, Scale IV, to lend Rs.50.0 lacs in the form of Open Cash Credit (OCC). OCC Limit was to be secured against the stocks as well as Book Debts as primary security. Additional Security in the form of immovable property was required to be taken to cover atleast 100125 per cent of the sanctioned loan. Credentials of the trader/borrower were to be verified through its audited balance sheets, returns etc. If the party had bank account with another bank, credit report from that bank was to be obtained by sending a letter to that bank either through post or in case of emergency through staff and not through the party. The collateral security was to be verified either by the Branch Manager or its officer physically. The stocks /book debts were to be verified periodically by the Branch Manager/officers.
25. Ld PP contended that in January, 2002, Sanjay Gupta (A2) created a fictitious firm in the name of M/s Paramount Insulation Co. at 78A Dilshad Garden, Delhi in conspiracy with Sharad Kumar Jain ( A1) to fraudulently obtain credit facilities from the bank. A2 with the help of Sushil Narain CC No. 21/12 04.12.2018 74 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 75 ( A4) came in contact with the Chief Manager, Indian Bank, Chandni Chowk branch P. R. Pujari (A3). A4 also knew PW36 since she had conducted a legal search of his property at Laxmi Nagar. Through PW36, A4 came in contact with A
2. A2 introduced himself to PW36 as Sanjay Jain. A4 also met P. R. Pujari through PW14 in connection with the loan of Rajesh Gupta for his cloth shop at Chandni Chowk.
26. Ld PP contended that M/s Paramount Insulation Co. vide letter Ex. PW 47/A14, on 25.03.2002 approached the Indian Bank for sanction of OCC limit of Rs.50.0 lacs. This letter was submitted by Satish Chand Jain with his signatures mark Q1. GEQD report proved that this signature Mark Q1 was signed by Sharad Kumar Jain. With the letter, biodata of Satish Chand Jain, Sale Deed of the property no. 78A, Dilshad Garden, Delhi in the name of Satish Chand Jain Ex. PW 20/2 offered as collateral security, bank statement of Jain Cooperative Bank, Shahdara that the company had been maintaining a current account in that bank and not enjoying any credit facilities with that bank were submitted. The company also opened a/c no. 9451 vide account opening form Ex. PW19/A. The form was signed by Sharad Kumar Jain as Satish Chand Jain. On that form, Sharad Kumar Jain affixed his photograph as Satish Chand Jain. The account was allowed by P. R. Pujari. It was later converted into OCC A/c No. 13030 on 11.04.2002.
CC No. 21/12 04.12.2018 75 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 76
27. Ld PP stated that a letter dated 06.03.2002 was purportedly sent by P. R. Pujari (A3) to find out the credit report in respect of the account of M/s Paramount Insulation Co. with Jain Cooperative Bank Ltd. From there, a report alongwith the statement of account was received vide letter dated 09.03.2002. Testimonies of PW1 and PW2 and the dispatch register record would show that no letter dated 06.03.2002 was dispatched on 06.03.2002 nor any reply was sent by Jain Cooperative Bank vide letter dated 09.03.2002 and the documents and the letter dated 09.03.2002 were the false and fabricated documents.
28. Ld PP stated that the account of M/s Paramount Insulation Co.
was introduced by PW41 Rajesh Gupta of M/s Shubham Saree Emporium. Ld PP stated that the loan was processed by P. R. Pujari (A3). He put a note on 13.03.2002 and attached the visiting card of Sushil Narain (A4) recording satisfactory report about the borrower. At that time, Sanjay Gupta (A2), Sharad Kumar Jain (A1) were present before P R Pujari (A
3).
29. Ld PP contended that P. R. Pujari (A3) did not take any residential proof of the property in the name of Sanjay Jain against the note given by PW 33 and only collected Ex. PW 47/A51 i.e. the details of assets and liabilities of Sanjay Jain bearing residential address 77A Dilshad Garden Delhi. GEQD report shows that the said document was signed by CC No. 21/12 04.12.2018 76 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 77 Sanjay Gupta as Sanjay Jain before the bank. Testimony of PW23 Nirmaljit Singh would also show that Sanjay Jain never lived at 77A Dilshad Garden, Delhi. Ld PP contended that P. R. Pujari ignored the queries raised by G. Sriram, Assistant Manager in the process note and mentioned vide note Ex. PW 33/F dated 09.04.2002 " copy of the P.O shown. Property not registered in his name". On 10.04.2002, A3 sanctioned the credit limits". Ld PP stated that it was Sharad Kumar Jain, who impersonating as Satish Chand Jain, executed all the loan documents and Sanjay Gupta posing as Sanjay Jain executed the agreement of guarantee on 10.04.2002 which fact is also proved from the GEQD report.
30. Ld PP contended that while executing the documents, they submitted the false audit reports purportedly issued by the firm V Sharma & Associates. Testimony of PW16 would reveal that no such firm existed at C55/X3, Dilshad Garden and the said firm existed till 1990 and the signatures and the stamps on the report were false/fake. PW16 has stated that he does not know any person by the name of Satish Chand Jain or Sanjay Gupta. Testimony of PW5 shows that Flat No. C 55/X3 was taken on rent by Sanjay Gupta (A2) in 199798 which he had vacated in September, 2001.
31. Ld PP stated that alongwith the loan documents, M/s Paramount Insulation Co. had deposited a Sale Deed for creating equitable mortgage in respect of the property No. CC No. 21/12 04.12.2018 77 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 78 78A Dilshad Garden showing Kuldeep Gupta as vendor and Satish Chand Jain as vendee bearing the photographs of Rakesh Verma as Kuldeep Gupta and Sharad Kumar Jain as Satish Chand Jain claiming that Kuldeep Gupta is the attorney of Mohan Lal & ors, the original owners but the testimonies of the witnesses examined from the SubRegistrar office, Seelampur and the record would show that in the Sale Deed executed in the SubRegistrar office, the photograph of Pankaj Garg was affixed as Satish Chand Jain. Further, there were discrepancies in the Sale Deed. According to PW7 Nehru Jain and PW21 Preeti Jain, the aforesaid property was never sold and they are still the owners of the property. They have also stated that they do not know any person by the name of Satish Chand Jain or Sanjay Jain and they never lived at 78A and 77A Dilshad Garden Delhi. They also produced the municipal tax record, as per which, the property is in the name of Nehru Jain. Ld PP stated that while executing the loan documents, Khasra Girdawari was deposited as the document of mutation as advised by the Panel Advocate but P. R. Pujari (A3) instead accepted the Khasra Girdawari and did not insist for mutation of the property. Testimony of PW31 would show that no Patwari by the name of Vijender had been working in the Nazul department, DDA and the said document was not issued by DDA and it was a fake /forged document. Both the CC No. 21/12 04.12.2018 78 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 79 documents of Sale Deed were sent to GEQD and the report shows that it was Sharad Kumar Jain who had signed on both the Sale Deeds as Satish Chand Jain and Rakesh Verma as Kuldeep Gupta and Sanjay Gupta as Inder Pal Singh. According to PW27 Inder Pal Singh was his partner in his property business.
32. Ld PP contended that testimonies of Postmen PW17 and PW44 would show that there was no board of M/s Paramount Insulation Co. at 78A Dilshad Garden. It was accused Sanjay Gupta who used to receive the dak from PW17 in respect of the above company. PW18 identified Rakesh Verma as Kuldeep Gupta after seeing the photograph affixed on the Sale Deed. Testimony of PW28 would show that no voter I card in the name of Satish Chand Jain R/o 78A Dilshad Garden was issued by the Election Office, copy of which was filed by Satish Chand Jain at the time of executing the loan documents.
33. Ld PP stated that Sanjay Gupta used to run a factory in the name of Sharda Metals from 78A Dilshad Garden, Delhi which he had taken on rent from Nehru Jain. Rakesh Verma @ Kuldeep Gupta, Sharad Kumar Jain @ Satish Chand Jain and Tarun Khanna @ Sonu @ Deepak Bansal used to work with Sanjay Gupta in M/s Sharda Metals. P. N. Upadhayay was his part time accountant who had his savings account in Vyasya Bank, Yamuna Vihar where M/s Paramount CC No. 21/12 04.12.2018 79 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 80 Insulation Pvt. Ltd also had an account of which Tarun Khanna @ Sonu @ Deepak Bansal and Sanjay Gupta were the directors. There were accounts of M/s Alpha Communications (India) and M/s Hindustan Industries Proprietor Sharad Kumar Jain. Ld. PP stated that the funds were siphoned off by M/s Paramount Insulation Co. by transferring them in the accounts of M/s Alpha Communications from where the amounts were withdrawn. Some self cheques were issued which were withdrawn by P. N. Upadhyay and in all Rs.28.0 lacs were received by P. N. Upadhyay from which he got prepared a Pay Order of Rs.17.0 lacs in the name of Agarwal Associates (Promoters) Ltd. (Promoters) at the instance of Sanjay Gupta who purchased a shop costing Rs.17.0 lacs in the name of Sanjay Mittal which he later sold to PW34 Mohd. Iqbal. Testimony of PW40 shows that Sanjay Gupta had come in his office with the documents of M/s Paramount Insulation Co. and told him that company belongs to his nephew. He after verifying the documents referred him to P. R. Pujari (A3) for loan. Ld PP stated that PW45 Sanjay Jain of M/s Arihant Industries had introduced the account of M/s Paramount Insulation Pvt. Ltd with Vyasya Bank Ltd on the request of P. N. Upadhyay where Tarun Khanna impersonated himself as Deepak Bansal. He also introduced the account of M/s Hindustan Industries, proprietor Sharad Kumar Jain at the instance of P CC No. 21/12 04.12.2018 80 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 81 N Upadhayay. Ld PP stated that GEQD report shows that Sharad Kumar Jain had signed the cheques issued from the account of M/s Paramount Insulation Co, Indian Bank, M/s Alpha communications ( India) and M/s Hindustan Industries in Vyasya Bank Ltd, Yamuna Vihar branch, Delhi. Further, most of the amount was withdrawn in cash by Sanjay Gupta (A2) through M/s Alpha Communications (India). The cheques of M/s Alpha Communications ( India) which were signed by Sharad Kumar Jain as self were got encashed by Tarun Khanna @ sonu. Ld PP stated that it is established from the evidence that M/s Alpha Communications ( India), M/s Paramount Insulation Co., M/s Hindustan Industries and M/s Paramount Insulation Pvt. Ltd were not in existence and were the fictitious firms created by the accused Sanjay Gupta to defraud the bank and siphon off the amount. The complaint Ex. PW 57/B is proved by PW57. A departmental enquiry in this matter was also got conducted which report is also proved by PW32. Ld PP also explained the role of the accused persons in detail and stated that the prosecution has proved this case beyond reasonable doubt through documentary as well as oral evidence.
34. Ld PP stated that it is a case of deep rooted conspiracy which was hatched by the accused Sanjay Gupta who with the help of his employees/coaccused persons in pursuance to the conspiracy hatched fraudulently obtained the OCC of Rs.45.0 CC No. 21/12 04.12.2018 81 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 82 lacs, misappropriated the same and siphoned off the amount after purchasing a property at Karkardooma in the name of Sanjay Mittal which he later sold to PW34. Ld PP stated that the cheques and the documents collected during the investigation and the testimonies of the witnesses clearly inculpate all the accused persons in the commission of the alleged offences. GEQD report also proves their complicity in the above offences. Ld PP stated that in this case, the investigating agency had obtained the sanction for prosecution of P. R. Pujari (A3) which fact is proved by PW48 who had accorded the sanction.
Arguments on behalf of accused persons
(a) Arguments on behalf of Sharad Kumar Jain A1
35. Sh. Sarim Naved, ld. Counsel for the accused Sharad Kumar Jain (A1) per contra argued that the accused is placed similarly to Pankaj Garg who was not made accused in this case. Coaccused Sanjay Gupta had introduced Pankaj Garg as Satish Chand Jain before the bank officials and the sub registrar when the accounts were opened and the sale deed in respect of the property bearing no. 78A, Dilshad Garden, Delhi was got registered. Ld. Counsel stated that the handwriting expert report is completely unreliable and is irrelevant as there is no evidence that Sharad Kumar Jain's handwriting sample was ever taken. There was no CC No. 21/12 04.12.2018 82 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 83 identification of the accused by PW54 who had witnessed taking of specimen signature and handwriting of Sharad Kumar Jain. He identified Sushil Narain as Sharad Kumar Jain and stated that due to lapse of time he cannot identify the accused Sharad Kumar Jain. There is no proved sample writing of Satish Kumar Jain. PW55 who witnessed the taking of finger print and thumb impression specimen did not identify the accused. There is glaring error in the report of the expert who instead compared Sharad Kumar Jain's signature 'S.K. Jain' with purportedly forged signature of 'S.C. Jain'. There are grave discrepancies in the report Ex.PW47/A43 and Ex.PW47/A44. PW47 has stated that it would be a mistake to suggest that on the sale deed Ex.PW20/2 and Ex.PW20/1, the spelling of the signature of Kuldeep Gupta is different. Ld. Counsel referred the case Alamgir vs. State of NCT , Delhi (2003) 1 SCC 21 to contend that since human judgment cannot be said to be totally infallible, due caution shall have to be exercised and the approach ought to be that of care and caution and it is only upon probe and examination, the acceptability or credit worthiness of the same depends. He also referred the case of Sandeep Dixit vs. State 2012 SCC Online Del 2430 wherein it was held that it is well settled proposition of law that expert report is not a conclusive report of the validity of the handwriting of document in question in the absence of any independent corroboration. Ld counsel CC No. 21/12 04.12.2018 83 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 84 contended that even the said specimen handwriting of the accused/petitioner was obtained without the permission of the Court by the investigating agency. The opinion of handwriting expert is also relevant in view of section 45 of the Evidence Act but that too is not conclusive. Sole evidence of the handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not.
36. Ld. Counsel submitted that there is nothing on record to show any involvement or any conspiracy by Sharad Kumar Jain. So far as the sale deed is concerned, Pankaj Garg was the person whose photograph was found affixed on the sale deed in the records of the subregistrar while orginally Sharad Kumar Jain's photograph was found on the copy of the sale deed submitted to the bank. PW43 who was working as Sub Registrar, Seelampur has deposed that vendor and vendee should be present with two witnesses at the time of registration of the sale deed. He did not state that either Sharad Kumar Jain or Rakesh Verma had come to register the property. The postman used to deliver the dak to Sanjay Gupta only and whatever illegality was committed, it was by Sanjay Gupta alone. PW9 and PW11 who used to work in ING Vysya Bank identified the signature of Sharad Kumar Jain on the account opening form of M/s Alpha Communications (India) and Hindustan Industries also CC No. 21/12 04.12.2018 84 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 85 identified him. There is nothing on record to show that Sharad Kumar Jain was benefited at all from the transactions which fact is also evident from the testimony of IO who has stated that no pecuniary benefit had occurred to the accused.
(b) Arguments on behalf of Rakesh Verma A7
37. For accused Rakesh Verma (A7), Ld. Counsel Sh. Sarim Naved submitted that accused Rakesh Verma is an illiterate person. This fact has also been admitted by the IO/ PW60. He was the employee of Sanjay Gupta. He was duped in the same manner as Pankaj Garg who was not made accused in this case. On account of his illiteracy, there cannot be any mens rea. Ld. Counsel referred the testimony DW2 who used to work with Sanjay Gupta. He has deposed that accused was not illiterate. The factory M/s Sharda Metal was going to be taken over by the government. PW18 who used to run a grocery shop has stated that Kuldeep Gupta had worked with the accused Sanjay Gupta and the person whose photograph is affixed as vendor on the sale deed is Rakesh Sharma and not Kuldeep Gupta. Ld. Counsel stated that PW6 in whose presence, specimen signature were taken in the CBI office did not identify the accused. Even PW55 in whose presence the finger print and thumb impression specimen were taken did not identify any of the accused persons in the Court. So, the handwriting expert report cannot be taken to be incriminating CC No. 21/12 04.12.2018 85 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 86 against the accused. There are discrepancies in the report of PW47. Ld. Counsel stated that accused Rakesh Verma had been working as Peon with the accused Sanjay Gupta. He was victimized. He did not have any idea of the design carved out by Sanjay Gupta to dupe him. He was entangled in the web of conspiracy by Sanjay Gupta. The testimony of the IO clearly reveals that Rakesh Verma did not receive any pecuniary benefit out of the alleged transactions.
(c) Arguments on behalf of Sanjay Gupta A2
38. Ld. Counsel Dr. Ashutosh for the accused Sanjay Gupta (A3) contended that the accused has been falsely implicated at the instance of the master mind Nehru Jain who in order to save himself after conniving with the officials of CBI more particularly the IO made him as scapegoat. Similarly, Pankaj Garg also connived with the CBI officials to get himself absolved at the stage of investigation itself because of whom the whole blame shifted to him. Ld counsel stated that though an application u/s 319 Cr.P.C was moved to summon Pankaj Garg and Nehru Jain as accused but it was dismissed. Even otherwise subsequent to this order, further evidence has come on record which substantiates the contentions of the accused. Ld. Counsel referred the testimony of PW60/IO and stated that he has admitted to have not taken the specimen signature, thumb impression/ handwriting of the accused Nehru Jain nor CC No. 21/12 04.12.2018 86 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 87 the rent agreement Ex. PW9/2 was sent to the laboratory bearing the signature of Nehru Jain. Ld. Counsel stated that the record which the accused placed on record in his defence clearly reveals that M/s Sharda Metals was declared insolvent in July 1995 itself and its account had become NPA. It was not existence after July, 1995 which aspect was never investigated by the IO. The sale deed Ex.PW20/2 bears the photograph of Pankaj Garg as purchaser. Ld counsel stated that IO had taken the specimen finger print SFP 12 and 13 of Pankaj Garg and he had also sent a questionnaire Ex.PW60/D1 to the finger print expert but did not seek comparison between SFP 12 and SFP13 and QFP 32, 33, 34 and 35. Ld counsel stated that IO has admitted that during investigation, the office of the registrar had informed that the vendor and vendee whose photographs were affixed on the sale deed were required to appear in person along with their ID proof and the documents were registered after the verification of the identification of those persons. PW20 Vikas Gupta has stated that the person whose photograph is affixed on the sale deed had also signed on the sale deed in the registrar office in his presence. Ld. Counsel stated that the documents Ex.PW9/D1 (D184) bears the photograph of Pankaj Garg as purchaser but the IO did not send the signature of the purchaser on the document Ex.PW9/D1 to the CFSL nor sent his thumb impression. IO has admitted that no CC No. 21/12 04.12.2018 87 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 88 definite report was given by the expert that the questioned signatures/ handwriting match with the specimen signatures/ handwriting of Pankaj Garg. Ld. Counsel stated that no action was taken against Vikas Gupta and the Registrar who had registered the documents. Ld. Counsel stated that the signature/ writings and thumb impressions were manipulated to save the real culprits including Pankaj Garg and Nehru Jain and falsely implicate the other accused due to ulterior motives. Ld. Counsel stated that the accused was given beatings by the CBI officials. His MLC corroborates this fact. The only allegation against the accused is that he had stood as guarantor by impersonating as Sanjay Jain for the person who had taken loan from the bank. Ld. Counsel stated that no TIP was conducted to establish that it was accused Sanjay Gupta who had stood guarantor in the name of Sanjay Jain before the Bank. Ld. Counsel stated that the application moved by Sanjay Gupta for declaring him and his proprietorship firm M/s Sharda Metals insolvent was allowed on 30.03.2001 which fact was already in the knowledge of the IO but he deliberately did not verify the fact and cooked up the story to falsely implicate him in this case. Ld. Counsel stated that the prosecution has failed to prove that any pecuniary benefit was directly arisen to him by the transfer of funds in his account. Ld. Counsel stated that there are material contradictions in the testimonies of prosecution witnesses which render the CC No. 21/12 04.12.2018 88 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 89 prosecution case as unworthy of belief.
(d) Arguments on behalf of Pravir Ranjan Pujari A3
39. For accused Pravir Ranjan Pujari, Ld. counsel Sh. Vinod Sharma argued that Indian Bank, Chandni Chowk Branch was the focus branch for trade finance. The branch was given a target of Rs. 10 crores. For this, the accused had to scout for advance account (loans/cash credit/other finances). In this connection, the accused had met Kapil Marwah PW40 who had sent this account to him. Satish Chand Jain (Sharad Kumar Jain) and Sanjay Jain (Sanjay Gupta) had met A3 in the branch and showed their balance sheets and other papers. Since as per the norms, the firm was eligible for credit facilities requested by the firm, A3 asked them to submit their papers in the standard format along with the details. A3 also asked them to show the property papers which was to be mortgaged as collateral security. The papers submitted by the party were given to the credit department. G. Sriram, Assistant Manager, processed the case. The property papers were sent to the panel lawyer PW37 for his legal opinion. A letter was also sent to Mrs. Uma Aggarwal Valuer for valuing the property. A letter was sent to Jain Cooperative bank for its opinion about the party as the party had informed that they were maintaining a current account with Jain Cooperative Bank. The accused had also visited the office cum godown of CC No. 21/12 04.12.2018 89 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 90 the party, verified the stocks, books of accounts and sales and purchase etc. Ld. Counsel stated that one day accused Sushil Narain (A4) was sitting in the room of A3 where Sanjay Gupta(A2) also came. They behaved as if they knew each other. Sushil Narain (A4) informed him that he knows Sanjay Gupta (A2) for more than 8 years. Whatever Sushil Narain had told him, he noted on a paper on which his visiting card was stapled. Ld. Counsel stated that receiving oral information was within the accepted norms as confirmed by PW33. Ld. Counsel stated that G. Sriram processed the papers and put up a note raising certain points for the reply of the party. A3 immediately asked the party to submit reply and in his note Ex.PW33/G, A3 gave instructions to prepare the credit report of the party. Ld. Counsel stated that G. Sriram did the same independently by inquiring from the buyers and sellers of the property and visited the office cum godown of the party. The Legal opinion gave clear title to the property. The valuer gave the valuation. Based on the documents, the limit was sanctioned. Ld. Counsel stated that the current account was allowed to be opened after observing all the formalities. It came to him for authorization which he authorized in routine manner. All the relevant documents were taken for creating equitable mortgage. Ld. Counsel stated that at one place, the party had informed that mutation has been done. When asked, party gave the khasra girdawari CC No. 21/12 04.12.2018 90 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 91 and said that he meant this only which he had told to the panel advocate. Ld. Counsel stated that this document was accepted as it did give the property transfer details. Moreover, it was not affecting the security in any manner. Ld. Counsel stated that integrity of A3 was never doubted by his seniors. At the time of his retirement, all retiring benefits were released to him. PW14 has stated that he knows the accused for 7 years. He is honest and efficient officer. Ld. Counsel stated that it was PW14 who had introduced Sushil Narain (A4) to him. PW19 also endorsed the procedure followed by A3. PW33 in his departmental inquiry did not find any connivance of A3 with the other accused persons. Testimony of PW33 shows that G. Sriram had verified all the details while processing the loan proposal. PW35 has stated that the Chandni Chowk branch of Indian Bank was one of the focus branch to implement trade finance scheme. He has stated that it was not for the Manager to go and personally post the letter in the post office and the dak for this purpose is dealt by the subordinate staff. There is a clear cut report of PW37 panel lawyer that the vendee (accused Satish Chand Jain) has a good marketable valid and subsisting title over the property and has right to create equitable mortgage over the property by deposit of title deed. Ld. Counsel stated that pursuant to the remarks given in the report, all the papers were taken and equitable mortgage was created by the credit department CC No. 21/12 04.12.2018 91 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 92 counter signed by him. IO in his testimony has stated that replica of the sale deed submitted with the bank looks like the original document. Ld. Counsel stated that M.L. Dass was the officer of the bank who had inspected the stock and godown independently on 27.08.2002 but neither G. Sriram nor M.L. Dass were made prosecution witnesses as their testimonies would have demolished the case of the prosecution against A
3. IO has clearly admitted that he did not find any evidence to show that due to sanction of loan, P. R. Pujari (A3) received any financial benefit from any person. Ld. counsel stated that the accused treated S.C. Jain and Sanjay Jain (Sharad Kumar Jain and Sanjay Gupta) as genuine borrowers as he never came across a fraud in his 30 years of service dealing with hundreds of borrowers. He followed all the banking norms and took all the precautions. Ld. Counsel stated that the bank manager is not a legal expert and he is dependent on the legal advise of the panel lawyer and credit department.
40. With regard to Credit report from Jain Cooperative bank, ld.
Counsel contended that he had signed the letter and sent it to the section through the subordinate staff. Senior Manager handles the dak. If the fraudsters manage to intervene in between, Chief Manager cannot do much about the same. The credit report received from the bank was placed before him. Ld. Counsel stated that none of the prosecution witnesses or documents proved anything showing connivance of A3 with CC No. 21/12 04.12.2018 92 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 93 the fraudsters. He had done his duty with full diligence and honesty and he was also a victim of fraud.
(e) Arguments on behalf of Sushil Narain A4
41. Sh. Ashutosh Lohia, Ld counsel for the accused Sushil Narain (A4) vehemently argued that the prosecution failed to bring forth any material on record that A4 had played any role in introducing the Current Account or converting it into OCC Account. He works in the field of education and is not on any panel of the bank. He was not authorized to give any kind of credit worthiness/market report for the potential customers of the bank. There is no procedure in the banking rules to grant or sanction loan on the basis of oral credit worthiness report of the outsider/stranger. The report of the Chief Manager dated 13.03.2002 does not bear the signatures of A4 and as such, he is not liable for the contents of this document. Merely attaching the visiting card on the top of the report would not make him criminally liable. It was the Chartered Accountant PW40 who had referred the accused Sanjay Gupta to P. R. Pujari.
42. Ld counsel stated that A4 did not know P. R. Pujari personally. He had contacted him through some person. He had informed PW41 Rajesh Gupta to meet the Chief Manager for his loan which was sanctioned on merits. Admittedly, no commission was asked or charged by A4 for the same.
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43. As regards introduction of Sanjay Gupta @ Sanjay Jain to the bank, Ld counsel stated that Sanjay Gupta had visited the shop of Rajesh Gupta to purchase some sarees where he talked to him for his introduction to the bank. When Rajesh Gupta asked him about the common acquaintances, he named 34 persons including the name of A4 as reference. Since accused Sanjay Gupta had made purchases of considerable value from his shop, Rajesh Gupta signed a blank form without any name or photograph in the shop itself. He never influenced or coerced him to do so, which fact has also come in the testimony of PW41.
44. Ld counsel stated that so called pocket/small diary allegedly recovered from the residence of Sanjay Gupta (A2) has not been proved or produced. PW60/IO has admitted that he did not send the diary for handwriting analysis for its authentication. Ld counsel stated that the same is inadmissible in evidence and cannot be referred to. The dates and amounts written in the diary can in no way be used to establish the fact that the amount was in any way or form was exchanged between A2 and A4. Ld counsel stated that A4 was not in nexus with the other alleged conspirators to cheat or defraud the bank. There is no material on record to establish that A4 forged any document with an intention to cheat and defraud the bank. The prosecution has failed to show any monetary benefit or attribute mensrea to the alleged CC No. 21/12 04.12.2018 94 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 95 actions of the accused (A4). In support of his contentions, Ld counsel referred the case of V. D. Jhangan v. State of Uttar Pradesh 1966 SCR(3) 736, CBI v. V. C. Shukla & ors 1998 (3) SCC 410 and S. K. Jain v. Union of India 2008 Crl. A.340 to contend that it is not necessary for the accused to prove his case beyond reasonable doubt. The entries in books of account are not by themselves sufficient to charge any person with liability. There must be independent evidence of transaction to which the entries relate. The initial burden of proving that the entries related to any fact in issue or relevant fact is on the prosecution which could be discharged by placing credible substantive evidence gathered through independent investigation. The entries themselves are not sufficient to prove the allegations against the accused.
45. Ld counsel stated that A4 was not the officer of the bank nor the valuer. There is no procedure in the bank that the verification could be made through private person. There is no connecting link in the chain of circumstances. Ld counsel stated that A4 was not the financial consultant to give credit worthiness report of the party. The cheques amounting to Rs.90,000/ and Rs.1,05,000/ issued by Shubham Saree Emporium were the self cheques and there is no evidence on record to indicate that the amount was given to A4 or retained by him. PW41 has categorically denied having paid any commission to A4 for the loan.
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(f) Arguments on behalf of Tarun Khanna @ Sonu A5
46. For accused Tarun Khanna @ Sonu (A5), Ld counsel Sh.
Anindya Malhotra submitted that the case was registered on the complaint of S. K. Virmani. No preliminary enquiry was conducted, although CBI Manual provides for a preliminary enquiry to be conducted in the matter prior to registration of FIR. Ld. Counsel referred the case of Vineet Narain & Ors v. Union of India & Ors (1998) 1 SCC 226 and Ripun Bora v. State ( Through CBI) (2012) ILRE Delhi 412 wherein it was held that CBI manual is a statute and it is mandatory on the part of CBI to follow. Ld counsel stated that PW10 is the only witness who has deposed in relation to the account opening form of M/s Paramount Insulation Pvt. Ltd wherein the accused Tarun Khanna is alleged to have impersonated as Deepak Bansal. Ld counsel submitted he while deposing before the Court did not identify the accused Tarun Khanna to be the same person as Deepak Bansal. CBI chose not to put any question to the above witness in relation to the identification of Deepak Bansal. Ld counsel stated that in absence of any evidence on record, the charge of impersonation u/s 419 IPC is not proved against A5.
47. Ld counsel stated that the specimen signatures of A5 were taken forcibly by CBI while he was in custody in another case. Ld counsel referred the specimen signatures of the accused Tarun Khanna S175 to S186 which were got signed CC No. 21/12 04.12.2018 96 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 97 as Deepak Bansal and S269 to S279 which were got signed as Tarun Khanna which according to the Examiner were written by one and the same person but even from the naked eye, the alleged signatures of accused Tarun Khanna are different. The expert in a mechanical manner has stated that the questioned writings have been written by the same person who has given the specimen signatures. Since the specimen signatures appearing on S175 to S186 are different from S 269 to S279, it is not possible that the questioned and standard writings would have similarities in general and individual writing, characteristics, general writing habits of movement, skill, speed etc. The investigating agency deliberately did not collect the rough notes. Ld counsel stated that it is a well settled law that conviction of an accused should not be based solely on the basis of the report of an handwriting expert unless the same is corroborated by independent witness. In the instant case, there is no corroboration by the independent witness to the GEQD report. Ld counsel stated that the CBI did not send the signatures of alleged Deepak Bansal on the account opening form of M/s Paramount Insulation Pvt Ltd as questioned signature for comparison to GEQD, it has rather taken to be as an admitted signature of Deepak Bansal. Ld counsel stated that the signature of Deepak Bansal alleged to have been signed by Tarun Khanna on the account opening form of M/s CC No. 21/12 04.12.2018 97 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 98 Alpha Communications was not sent to GEQD for expert opinion. This leads to irresistible conclusion that the said signature of Deepak Bansal was not signed by Tarun Khanna. This also leads to an inference that had the signatures of Deepak Bansal been sent to GEQD by CBI for comparison with the specimen signatures of Tarun Khanna, the same would not have matched.
48. In respect of the charge of criminal conspiracy, Ld counsel referred the testimony of DW1 who has stated that the account of M/s Paramount Insulation Pvt Ltd was opened on 08.03.2000 and it was closed on 20.02.2002. Even if, it is assumed that Tarun Khanna had allegedly signed as Deepak Bansal on the said account opening form , he cannot be said to be the part of any criminal conspiracy during the year 2002 as the said account was opened on 08.03.2000 which was much prior to the alleged period of conspiracy in the present case. The account of M/s Paramount Insulation Pvt. Ltd was closed much prior to the date of grant of credit facilities i.e. 10.04.2002 in the present case. It is not the case of CBI that the conspiracy in the present case started in 2000 in pursuance of which accused Tarun Khanna got opened the account of M/s Paramount Insulation Pvt Ltd. Further, the account of M/s Alpha Communications (India) was introduced by Tarun Khanna as Deepak Bansal on 01.12.2001 which was also prior to the period of the alleged conspiracy CC No. 21/12 04.12.2018 98 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 99 in the present case. Ld counsel stated that the bank statements pertaining to different accounts submitted by CBI do not bear any certificate under Bankers Book of Evidence Act and thus, not proved in accordance with law. Most of the bank account statements are the print outs which do not have the certificate u/s 65B of the Evidence Act. Ld counsel referred the case of Anvar P. V. v. P. K. Basheer & Ors 2015(1) JCC 214 and Harpal Singh @ Chhota v. State of Punjab 2017(1) SCC 734. Ld counsel also referred to the submissions made by the accused in the statement u/s 313 CrPC wherein he had submitted that at the time of alleged offence, he was aged about 1718 years and lived at the mercy of the accused Sanjay Gupta who was supporting his sister since her husband had expired and they had no money or means of livelihood. It was the accused Sanjay Gupta who had arranged accommodation for them. He used to support them financially. Accused Sanjay Gupta used to force him to do acts against his wishes and beat him up which fact has also been affirmed by Smt. Meenu Pathak. He used to threaten them. Ld counsel stated that A5 is innocent and victim of circumstances.
49. Ld counsel stated that no evidence whatsoever has come on record to show that accused Tarun Khanna had received any pecuniary gain or benefit in the present case as a result of illegal activities or transactions undertaken by the other CC No. 21/12 04.12.2018 99 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 100 accused persons or he misused or misappropriated any money for his own use. The chain of circumstances to establish his involvement lacks in material particulars and A5 deserves to be acquitted.
(g) Arguments on behalf of P.N. Upadhyay A6
50. For accused P. N. Upadhyay (A6), on legal aspects, Ld counsel Sh. Anindya Malhotra reiterated what he has stated for the accused Tarun Khanna @ Sonu. Ld counsel referred the charge and stated that in this case, the accused has been charged u/s 467 IPC for signing on the back of the cheque of Rs.6.80 lacs from the account of M/s Alpha Communications (India) and partially forging the cheque, Ld counsel stated that there is no such cheque of Rs.6.80 lacs of M/s Alpha Communications (India) on record.
51. Ld counsel stated that the accused neither prepared the alleged cheque in question nor altered it. It was allegedly prepared by Sharad Kumar Jain and as such the charge u/s 467 IPC cannot be sustained against him. Ld counsel stated that the accused was a part time accountant with Sanjay Gupta and he being the accountant had no knowledge that the cheque of M/s Alpha Communications (India) was of a non existent firm. In support of his contentions, Ld counsel referred the case of L. Chandraiah v. State of A.P & Anr (2003) 12 SCC 670 and Radha Pisharassiar Amma v. State of CC No. 21/12 04.12.2018 100 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 101 Kerala (2007) 13 SCC 410. Ld counsel stated that the accused did not or could not have known whether the cheque in question was a forged document or not as he was not the employee of Sharad Kumar Jain. He merely followed the instructions of his employer Sanjay Gupta and got the cheques encashed by signing on the back of the same. He by no stretch of imagination could have known whether M/s Alpha Communications (India) was a nonexistent firm nor could he have known whether Sharad Kumar Jain was signing on the said cheques as a real person or as a fictitious person.
52. Ld counsel referred the submissions made by A6 in his statement u/s 313 CrPC wherein he had stated that he was working as a part time accountant for the accused Sanjay Gupta. Sharad Kumar Jain used to visit the premises of Sanjay Gupta and whenever he ( P. N. Upadhyay) used to be there, they used to send him to the bank to encash the self cheques. After encashment, he used to hand over the encashed money to them. He was not aware if the accused Sharad Kumar Jain had issued the cheques as Satish Chand Jain. He did not have any knowledge about their activities. He had stated that the cheques were never signed in his presence nor he received any pecuniary gain out of the said transactions.
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53. Ld counsel stated that there is no evidence to show that the accused misused or misappropriated any money for his own use or he derived any pecuniary advantage.
54. Ld counsel stated that the accused was summoned in the CBI office where his specimen signatures and handwriting were taken by the IO. Testimonies of PW52, the alleged independent witness to the specimen signature and IO/PW60 clearly go to show that specimen signatures of accused P. N. Upadhyay were taken forcibly by the IO and the independent witness PW52 had merely put his signatures as a witness at the asking of CBI. So, the same cannot be considered by this Court. Ld counsel stated that element of conspiracy is lacking in this case and the prosecution has miserably failed to establish the allegations against the accused. In support of his contentions, Ld counsel referred the case of Life Insurance Corporation of India & Anr v. Ram Pal Singh Bisen (2010) 4 SCC 491, Sudhir Engineering Co. v. Nitco Roadways Ltd 1995 (34) DRJ 86, Motor & General Finance Ltd v. M/s Milap Bus Service (Regd) 94 (2001) DLT 171, Anvar P.V. v. P. K. Basheer & Ors(2014) 10 SCC 473, Tomaso Brunc & Anr v. State of Uttar Pradesh (2015) 7 SCC 178, Sulekh Chand Jain v. State ( Delhi Administration) 1991 (43) DLT 136 and Dhanpat Rai Jain v. State (CBI) 2000(1) AD (Delhi) 445. CC No. 21/12 04.12.2018 102 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 103 APPRECIATION OF EVIDENCE AND FINDINGS
55. I have bestowed my thoughtful consideration on the contentions raised by the parties and gone through the statements of witnesses and the documents on record and also the case laws referred during the course of arguments.
56. The accused persons have been charged for committing the offence of criminal conspiracy, impersonation, cheating, making forged documents, using forged documents as genuine and resorting to corrupt practices. Before adverting to the merits of the rival contentions, brief review of the offences invoked against accused persons would be necessary and relevant:
Section 120B IPC provides punishment for criminal conspiracy. Criminal conspiracy is defined u/s 120A IPC. To constitute the offence of criminal conspiracy, following ingredients must exist:
(1) There should be an agreement between two or more persons who are alleged to conspire; (2) The agreement should be to do or cause to be done:
(i) an illegal act, or
(ii) an act which may not itself be illegal by illegal means.
Section 419 IPC provides punishment for cheating by personation __ whoever cheats by personation shall be punished with imprisonment........ A person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, CC No. 21/12 04.12.2018 103 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 104 or representing that he or any other person is a person other than he or such other person really is.
Section 420 IPC provides punishment for cheating and dishonestly inducing delivery of property:
"Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed and which is capable of being converted into a valuable security shall be punished".
To constitute the offence of cheating, following ingredients must exist:
1. That the representation made by the accused was false;
2. That the accused knew that the representation was false at the very time when he made it;
3. That the accused made the false representation with the dishonest intention of deceiving the person to whom it was made; and
4. That the accused thereby induced that person to deliver any property or to do or to omit to do something which he would otherwise not have done or omitted.
Section 468 IPC provides punishment for forgery for purpose of cheating. To invoke this section, following ingredients must exist:
1. The documents or electronic record is forged;
2. The accused forged the documents or electronic record;
3. The accused forged the document or electronic record intending that the forged document would be used for the purpose of cheating.
CC No. 21/12 04.12.2018 104 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 105 Whoever makes any false documents or false electronic record with intend to cause damage or injury to the public or to a person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intend to commit fraud or that fraud may be committed, commits forgery. A person is said to make a false document or electronic record who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document ........
with the intention of causing it to be believed that such document or part of document....... was made, sign, sealed, executed, transmitted or affix 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; ........
Section 471 IPC provides punishment for using any document or record as genuine fraudulently and dishonestly. To invoke this section, following ingredients must exist:
1. The document or electronic record is a forged one;
2. The accused used the document or electronic record as genuine;
3. The accused knew or had reason to believe that it was a forged document or electronic record;
4. The accused used it fraudulently or dishonestly, knowing or having reason to believe that it was a forged document or electronic record.
Section 467 IPC provides punishment for forgery of valuable security, will, etc. To invoke this section, following ingredients must exist :
(1) The forged document purports to :
(a) a valuable security; or
(b) a will, or CC No. 21/12 04.12.2018 105 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 106
(c) an authority to adopt a son, or (2) To give authority to any person:
(a) to make or transfer any valuable security, or
(b) to receive the principal, interest or dividends on a valuable security, or
(c) to receive or deliver any money, movable property, or valuable security.
(3) To an acquittance or receipt:
(a) for acknowledgement the payment of money, or
(b) for the delivery of any movable property or valuable security.
Section 30 IPC defines valuable security. The words "
valuable security" denote a document which, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or where by any person acknowledges that he lies under legal liability, or has not a certain legal right.
Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 reads as follows:
13 Criminal misconduct by a public servant: (1) A public servant is said to commit the offence of criminal misconduct
(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;
CC No. 21/12 04.12.2018 106 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 107 (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment ..........
57. To appreciate the evidence in a better perspective, it is important to refer the following data/evidence:
(A) Details of the accounts opened/maintained by the parties at the relevant time with different banks/branches.
Alpha Communication India, 11662, Panchsheel Garden, Naveen Shahdara, Delhi, proprietor Sharad Kumar Jain.
58. The account was opened on 01.12.2001 in Vyasya Bank Ltd.
Yamuna Vihar branch, Delhi vide account opening form Ex.PW9/A (D65). The account was introduced by Deepak Bansal, director of M/s Paramount Insulation Pvt. Ltd. Record reveals that Sharad Kumar Jain had signed as the proprietor of M/s Alpha Communication (India) and Tarun Khanna @ Sonu had signed as Deepak Bansal. At the time of opening the account, Sharad Kumar Jain had submitted his ration card where his name was shown as Sharad Kumar Jain S/o Lakhmi Chand Jain R/o 1/6230, East Rohtash Nagar, Delhi. The account opening form bears the photograph of Sharad Kumar Jain. He had submitted a letter head of M/s Alpha Communication (India), Form 60, Sales Tax Registration etc. In the account opening form, he had given CC No. 21/12 04.12.2018 107 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 108 his date of birth as 15.12.1953.
59. PW4 who is resident of 11662, Panchsheel Garden, Navin Shahdara, Delhi has stated that he lives at the said address since 1984. He never established any firm at the said address nor opened any account in Vyasya Bank Ltd, Yamuna Vihar branch in the name of M/s Alpha Communications (India). He has stated that he does not know any person by the name of Sharad Kumar Jain nor knows the person whose photograph has been affixed on the account opening form of M/s Alpha Communications (India). He also stated that he does not know Deepak Bansal/Tarun Khanna @ Sonu.
60. PW9 who was the Branch Manager in Vyasya Bank, Yamuna Vihar branch in 20002001 has stated that M/s Alpha Communications (India) had opened a Current A/c 1324 on 01.12.2001 vide account opening form Ex. PW 8A (D65). Sharad Kumar Jain was its proprietor and he had signed the form at Point B and C in his presence. He has stated that the account was introduced by Deepak Bansal, Director of M/s Paramount Insulation Pvt. Ltd. whose signatures were verified by the then Assistant Manager S S Prasad. He identified the photograph of Sharad Kumar Jain on the form and stated that Sharad Kumar Jain had submitted various documents and he had also taken the address proof of the account holder at the time of opening of account.
CC No. 21/12 04.12.2018 108 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 109 M/s Hindustan Industries, 134, Main Road, Tahirpur, proprietor Sharad Kumar Jain.
61. Sharad Kumar Jain as proprietor of Hindustan Industries 134, Main Road, Tahirpur, Delhi had opened an account with Vyasya Bank Ltd, Yamuna Vihar branch, Delhi vide account opening form Ex.PW11/A (D66) on 18.10.02. The account was introduced by Sanjay Jain, proprietor of M/s Arihant Industries. He had submitted customer information form vide Ex.PW11/B. The account opening form bears his photograph. He also submitted Sales Tax Registration Ex.PW11/C, Saral Form Ex.PW11/D giving his PAN No. AACPJ5543S with date of birth as 15.12.1962. However, in the account opening form in the name of M/s Alpha Communications (India), he had given his date of birth as 15.12.1953. In the ration card, his age has been recorded as 40 years and his address as 134, Tahirpur, Delhi Ex.PW11/F. As per the record, a copy of PAN Card in the name of Satish Chand Jain bearing No. ACUPJ2651B showing his date of birth as 12.12.1962 bearing the photograph of Sharad Kumar Jain was submitted.
62. PW3 has stated that he is the owner of the premises bearing No. 134, Tahir Pur, Delhi. He had purchased it from R K Bhardwaj where he used to run his business. He stated that there was no company by the name of M/s Hindustan Industries at the above address since 1997 nor he rented out the property to anyone nor he knows Sharad Kumar Jain nor CC No. 21/12 04.12.2018 109 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 110 he identified the photograph on the account opening form Ex. PW 11/A (D66).
M/s Paramount Insulation Pvt. Ltd., 78A, Dilshad Garden, Delhi.
63. Deepak Bansal and Sanjay Gupta, directors of M/s Paramount Insulation Pvt. Ltd. had opened the account in Vyasya Bank Ltd, Yamuna Vihar Branch, Delhi on 08.03.2000 vide account opening form Ex.PW10A (D67). It bears the photographs of Tarun Khanna @ Sonu as Deepak Bansal and Sanjay Gupta. The account was introduced by Sanjay Jain, proprietor of M/s Arihant Industries. GEQD opinion shows that Tarun Khanna had signed as Deepak Bansal and Sanjay Gupta had signed as Sanjay Gupta.
64. As per the Statement of Account proved by DW1, the account was closed on 20.02.2002. PW10 who proved the account opening form had verified the introducer's signature on the form and also identified the signatures of Sanjay Gupta and Deepak Bansal at Point C and D on the form Ex. PW 10/A. He stated that they had signed in his presence and with the form, they had submitted the documents i.e. Form 58, Form 60, Form 277 Ex. PW 10/B to Ex. PW 10/D, Letter Head of M/s Paramount Insulation Pvt. Ltd, resolution Ex. PW 10/E and put their signatures. He stated that Sanjay Gupta had also given copy of his ration card mark A and receipt dated CC No. 21/12 04.12.2018 110 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 111 11.10.99 in support of registration of the company with the Registrar of Companies.
65. PW10 has stated that this account was introduced by Sanjay Jain, proprietor of M/s Arihant Industries.
66. PW45 Sanjay Jain, proprietor of M/s Arihant Industries has stated that he had introduced the account of M/s Paramount Insulation Pvt. Ltd, 78A, Dilshad Garden in Vyasya Bank Ltd, Yamuna Vihar branch on the asking of P. N. Upadhyay who had been working with him since 1998. He stated that P. N. Upadhyay had brought a person whose photograph is annexed on the form at Point X in his office. He went to the bank and signed the form. He stated that he never met Sanjay Gupta nor Deepak Bansal prior to opening of the account nor he knows any person by the name of Sharad Kumar Jain, proprietor of M/s Hindustan Industries. He stated that he had also introduced the account of M/s Hindustan Industries on the asking of P. N. Upadhyay. He stated that P. N. Upadhyay had introduced him to Sharad Kumar Jain and told him that he is known to him. He stated that he did not have any business relations with Sharad Kumar Jain.
Prabhu Nath Upadhyay in Vyasya Bank, Yamuna Vihar branch, Delhi.
67. Prabhu Nath Upadhyay R/o B5/144, Yamuna Vihar, Delhi opened a saving bank account 553010060013 with Vyasya CC No. 21/12 04.12.2018 111 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 112 Bank, Yamuna Vihar branch, Delhi on 17.09.02 vide account opening form Ex.PW8/B (D68). The account was introduced by him (Prabhu Nath Upadhyay) since he already had saving fund account no. 535010034660 with the same bank.
68. PW8 proved the account opening form (SB A/c No. 553010060013) Ex. PW 8/B and stated that P. N. Upadhyay had another account No. 535010034660. He correctly identified the accused P. N. Upadhyay. He stated that he had prepared a Pay Order of Rs.17.0 lacs Ex. PW 8/H on the request of P. N. Upadhyay in the name of Agarwal Associates (Promoters) Ltd. Ex. PW 8/G against deposit of cash of Rs.17,05,000/ by P. N. Upadhyay. He also proved the cheques Ex. PW 8/J to Ex. PW 8/N dated 19.06.2002 for a total sum of Rs.28.0 lacs bearing the signatures of the accused P. N. Upadhyay.
M/s Sharda Metals, proprietor Sanjay Gupta, in Central Bank of India, Janpath, Delhi branch.
69. M/s Sharda Metals, 78A, Dilshad Garden, Delhi through its proprietor Sanjay Gupta R/o 2680, Street no. 9, Bihari Colony, Shahdara had opened a current account no. 8125 on 29.06.1989 vide account opening form Ex.PW60/DA2/3 (D230). The account was introduced by Modi Bandhu, B19, Jhilmil Industrial Area, Shahdara. The account opening form does not bear the photograph of Sanjay Gupta but bears the CC No. 21/12 04.12.2018 112 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 113 signature of Sanjay Gupta.
70. PW7 who is the owner of the premises 78A Dilshad Garden Delhi has stated that he had rented out the premises bearing No. 78A Dilshad Garden, Delhi to Sanjay Gupta for running his factory in the name of M/s Sharda Metals vide rent agreement Ex.PW7/B1. He stated that Sanjay Gupta vacated the premises in 2002 and surrendered the possession vide possession/acknowledgement Ex. PW 7/C. He stated that Sharad Kumar Jain is his cousin. He identified the accused Sharad Kumar Jain, Rakesh Verma, Tarun Khanna and P. N. Upadhyay and stated that they used to work in the factory of Sanjay Gupta. He stated that he never sold the property to anyone and he and Preeti Jain, wife of his brother Late Mukesh Jain, are the owners of the property. He stated that no person by the name of Satish Kumar Jain or Kuldeep Gupta ever lived in that property.
Sanjay Mittal in Central Bank of India branch Shahdara, Delhi.
71. Sanjay Mittal, 157, Jagriti Enclave, Delhi92 had opened a saving fund account no. 912 with Central Bank of India, branch Shahdara, Delhi vide account opening form Ex.PW49/A1 (D219). Sanjay Gupta had signed as Sanjay Mittal and the photograph on the account opening form is also of Sanjay Gupta. The account was opened on 23.01.03.
CC No. 21/12 04.12.2018 113 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 114 The account was introduced by H K Singhal A/c no. 664. With the account opening form, he had submitted copy of his ration card bearing his photograph with his name Sanjay Mittal S/o H S Gupta R/o 157, Jagriti Enclave, Delhi vide Ex.PW38/A1 (D219).
72. PW38 has stated that on 20.01.2003, Sanjay Mittal and Deepak had come to him and asked him to introduce the account. He stated that the photograph on the account opening form Ex. PW 49/A1/Ex. PW 38/A is of Sanjay Gupta. He also identified the accused Sanjay Gupta and stated that the specimen signature card Ex. PW 38/A1 also bears the photograph of Sanjay Gupta. He stated that he had seen Sanjay Gupta for the first time in the bank when he introduced the account. He stated that he introduced the account on the asking of his cousin Rajesh Gupta.
73. PW49 had handed over the documents to CBI relating to the account No. 912 of Sanjay Mittal including the Statement of Account for the period from 01.01.2003 to 08.07.2003 Ex. PW 49/A4. He has stated that the photograph on the account opening form is of Sanjay Gupta. He also proved his specimen signature card Ex. PW 49/A2 bearing the photograph of Sanjay Gupta at Point X. B. Opening of account of M/s Paramount Insulation Co. with Indian Bank, Chandni Chowk Branch, Delhi.
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74. In the instant case, M/s Paramount Insulation Co., proprietor Satish Chand Jain, 78A Dilshad Garden, Delhi had opened a current account no. 9451 with Indian Bank, Chandni Chowk branch Delhi vide account opening form Ex. PW 19/A (D46) on 11.04.2002. On the same day, the account was converted into OCC A/c No. 13030. The account was introduced by PW41 Rajesh Gupta, owner of Shubham Saree Emporium, 988/5, Chandni Chowk Delhi. The account opening form bears the photograph of Sharad Kumar Jain as Satish Chand Jain.
75. PW41 has stated that his friend Vipin Kalra had introduced him to Sushil Narain for getting loan from the Indian Bank, Chandni Chowk branch. Sushil Narain had taken him there where he introduced him (PW 41) to the Branch Manager P. R. Pujari. A limit of Rs.15.0 was sanctioned in his name. He stated that he had introduced the account of M/s Paramount Insulation Co. vide account opening form Ex. PW 19/A. He identified the accused Sanjay Gupta as Sanjay Jain and stated that he had come to him for introduction of account. He stated that he did not know Sanjay Gupta from before and before introducing the account, he had verified about Sanjay Jain from Sushil Narain who told him that he knows Sanjay Jain and thereafter, he gave the introduction. He, however, admitted that Sushil Narain never pressurized him to give the introduction. In the instant case, during investigation, CC No. 21/12 04.12.2018 115 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 116 statement of PW41 was recorded u/s 164 CrPC Ex. PW 41/A wherein he had stated that he had introduced Sanjay Jain at the instance of Sushil Narain.
76. In the instant case, the account opening form Ex.PW 19/A was sent to GEQD for expert opinion with the specimen signature and handwriting of accused Sharad Kumar Jain and the reports Ex. PW47/A43 to Ex. PW 47/A46 confirm that it was Sharad Kumar Jain who had signed as Satish Chand Jain. Testimony of PW7, PW21 and PW23 would show that Satish Chand Jain never lived at the premises 78A Dilshad Garden, Delhi and Sharad Kumar Jain was the employee of the accused Sanjay Gupta in his unit in the name of M/s Sharda Metals at 78A, Dilshad Garden, Delhi which premises Sanjay Gupta had taken on rent from PW7 Nehru Jain which fact is also confirmed by PW22 Inder Singh and PW18 Ghanshyam Tiwari.
C. Proposal, processing and sanction of loan and execution of loan documents
i) Proposal for loan
77. In the instant case, M/s Paramount Insulation Company, Proprietor Satish Chand Jain had applied for sanction of working capital limit: OCC Limit (Stocks and book debts) of Rs. 50 lacs with the bank vide loan application/letter dated 25.02.2002 Ex.PW47/A14 (D17). The application was CC No. 21/12 04.12.2018 116 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 117 submitted by Satish Chand Jain with his signature mark Q1. GEQD report which is proved by PW47 shows that signature Mark Q1 was made by the accused Sharad Kumar Jain. Following documents were submitted with the loan application:
i. Application in the prescribed form PW47/A14 (D 17 ).
ii. Details of Assets and Liabilities on the prescribed form Ex.PW47/A15 (D18).
iii. Audited balance sheet and Profit and Loss Account for the years ending 31.03.2001, 31.03.2000 and 31.03.1999 Mark PW16/A, Mark PW16/B, Mark PW16/C, Mark PW16/D (D10), Mark PW16/E, Mark PW16/F, Mark PW16/G, Mark PW16/H (D
11) and Mark PW16/I, Mark PW16/J and Mark PW16//K (D12) bearing the signatures of Vinod Sharma, proprietor of V. Sharma and Associates, Chartered Accountants, C55/X3, Dilshad Garden, Delhi 110 095.
iv. Provisional Balance Sheet and Provisional Trading and Profit and Loss Account and list of sundry debtors for the period ended 31.01.2002 (D13).
v. Cost and Profitability statement (Credit Monitoring Assessment) Ex.PW47/A8 to A13 (D16).
vi. Income tax documents Mark PW16/A, B,C, D ( D
10), PW16/E, F, G,H (D11) and PW16/I, 16/J and 16/K (D12).
vii. Bio Data of Satish Chand Jain Ex.PW47/A6 (D14) giving his particulars as son of late Sh. N.M. Jain, date of birth 12.12.1962 address 78A, Dilshad CC No. 21/12 04.12.2018 117 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 118 Garden, Delhi and qualification : graduate with experience: commenced business of trading of copper wire in the year 1998 in the name and style of Paramount Insulation Company has done a turnover of Rs. 700 lacs and his net worth as Rs. 152.15 lacs.
viii. Bank Statement that they are maintaining current account with Jain Cooperative Bank Ltd, Shahdara Branch and at present not enjoying the credit facility Mark A (D8).
ix. Sale Deed of property bearing no. 78A, Dilshad Garden, Delhi offered as collateral security in the name of Satish Chand Jain Ex.PW20/12 (D47).
x. Statement of monthly sales, purchases, stock, sundry debtors and creditors from 01.04.2001 to 31.01.2002 Ex.PW47/A7 (D15).
78. PW16 Vinod Sharma has stated that he used to practice as a Chartered accountant from 1985 to 1990 at 1/6697, East Rohtash Nagar, Shahdara, Delhi in the name of V. Sharma and Associates. He joined Delhi States Civil Supply Corporation in 1991. He was confronted with the Audit report of M/s Paramount Insulation Company, Balance sheets, trading and profit and loss accounts as mentioned above and he stated that he did not sign these reports nor the reports bear the stamp/seal of his firm V. Sharma and Associates as it was not in existence after the year 1990. He stated that the address of the firm C55/X3, Dilshad Garden, Delhi as shown in the reports is false as his firm never existed at the above address. He was also confronted with the photo affixed on the account CC No. 21/12 04.12.2018 118 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 119 opening form of M/s Paramount Insulation Company in which Satish Chand Jain was shown as Proprietor and he stated that he does not know the person whose photograph was affixed on the account opening form nor he conducted the audit of M/s Paramount Insulation Company nor he knows any person by the name of Sanjay Gupta, proprietor of M/s Sharda Metals and all the documents as referred above are false.
79. Testimony of PW5 shows that he had purchased the flat no.
C55/X3, Dilshad Garden, Delhi in the year 1987 from DDA. He had rented out the flat to the accused Sanjay Gupta who had a factory in front of his flat. He correctly identified the accused Sanjay Gupta and stated that a widow used to live there with her daughter. He stated that he got the flat vacated from Sanjay Gupta in 2001. He stated that he does not know any Vinod Sharma Chartered Accountant and he never rented out this flat to Vinod Sharma.
80. PW19 who was Assistant Manager in Indian Bank, Chandni Chowk Branch proved the Account Opening Form Ex.PW19/A of M/s Paramount Insulation Company and stated that the current account no. 9451 was opened on 11.04.2002 and it was later converted into OCC account no. 13030 on the same day i.e. 11.04.2002. In the account opening form, Satish Chand Jain was shown as proprietor of M/s Paramount Insulation company. He stated that he had CC No. 21/12 04.12.2018 119 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 120 issued a cheque book to the company on 11.04.2002 and in that respect he had made entry in the cheque book register Ex.PW19/B at page 10 (D161). He stated that there was nothing unusual in the account opening form Ex.PW19/A and the account was opened in routine. He stated that when P. R. Pujari was posted in the branch, several accounts were opened since a special drive was going on to open the credit limit account of more than Rs. 1.0 crore.
81. According to the prosecution, when the account was opened vide account opening form Ex.PW19/A, photocopy of election I card in the name of Satish Chand Jain Ex.PW60/DA2/5 (D4) bearing the photograph of Pankaj Garg, certificate of registration of M/s Paramount Insulation Company (D5), D6 showing S.C. Jain as proprietor and a receipt from the Sales Tax Department (D7) were submitted. However, on perusal, none of the above documents find mentioned in the account opening form. None of the witnesses stated that the above documents were submitted at the time of opening of the account vide Ex. PW 19/A.
82. The instant account was introduced by Rajesh Gupta PW41, proprietor of M/s Shubham Saree Emporium Chandni Chowk Branch. He has stated that his friend Vipin Kalra had introduced him to the accused Sushil Narain as he wanted to avail loan facility. Accused Sushil Narain took him to Indian Bank, Chandni Chowk branch where he introduced him to the CC No. 21/12 04.12.2018 120 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 121 accused P.R. Pujari, Manager. He identified P. R. Pujari and Sushil Narain and stated that P. R. Pujari sanctioned a limit of Rs. 15 lacs in his name. He stated that after sometime, he received a call from the bank asking him if he had introduced one S.K. Jain in the opening of an account which he replied in affirmative. He stated that he did not pay any commission to any one when his loan was sanctioned. He was confronted with the account opening form Ex.PW19/A (D46) and stated that he had introduced that account. He proved his statement recorded u/s 164 Cr.P.C. Ex.PW41/A. He stated that the accused Sanjay Gupta had come to him as Sanjay Jain to introduce him in the bank for opening the account. He stated that he did not know Sanjay from before. He denied that it was not the accused Sanjay Gupta present in the Court who had approached him for introduction. He stated that S.K. Jain means Sanjay Jain and Sanjay Gupta had requested him to introduce the account giving reference of Sushil Narain. He stated that Sushil Narain was not present when Sanjay Gupta had requested him to introduce the account.
83. It is to be noted that the account opening form Ex.PW19/A was signed by the proprietor Satish Chand Jain at Mark Q16 and the GEQD report Ex.PW47/A43 (D46) shows that Q16 was signed by the accused Sharad Kumar Jain as Satish Chand Jain. PW7 identified the photograph of Sharad Kumar Jain on the form Ex.PW19/A. CC No. 21/12 04.12.2018 121 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 122
ii) Processing of loan
84. In the instant case, the loan proposal / application was processed vide proposal Ex.PW33/D (D26) by G. Sriram, Assistant Manager (Loans). Before processing the loan proposal, credit information report about M/s Paramount Insulation Company was sought from the banker Jain Co operative Bank Ltd, by the accused P.R. Pujari vide letter dated 06.03.2002 Ex.PW33/I (D21). It was mentioned in the proposal that a reply/report was received from Jain Co operative Bank vide letter Ex.PW1/A (D20) dated 09.03.2002 along with the details Ex.PW1/B and credit information report Ex.PW1/C. PW 19 who brought the dispatch register for the period from 13.06.2001 to 29.09.2003 has stated that as per the dispatch register Ex.PW19/D, no such letter dated 06.03.2002 addressed to the branch Manager, Jain Cooperative Bank was dispatched on 06.03.2002. Testimony of PW1 who was posted in Jain Co operative Bank Ltd, Shahdara Branch reveals that no such letter dated 09.03.2002 Ex.PW1/A was issued by their branch nor the letter bears the signature of the Manager Viresh Chand Jain and the letter head Ex.PW1/B is not of the bank. He has stated that the credit information report Ex.PW1/C regarding Paramount Insulation Company was not issued by their bank. He also stated that the stamp affixed on the letter and the credit information report are also not of the bank. He CC No. 21/12 04.12.2018 122 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 123 proved the dispatch register Ex.PW1/E (D209) and stated that as per the dispatch register, no credit report for the period from 08.03.2002 to 11.03.2002 was issued to the Chief Manager Indian Bank, Chandni Chowk Branch. He was also confronted with the statement of account no. CA 001 508 (D
8) of M/s Paramount Insulation Company (11 pages) Mark A and he stated that this statement was not issued by their branch. He stated that the bank vide letter Ex.PW1/F had informed the CBI that the account no. 1508 of M/s Paramount Insulation Company was not maintained by their branch. PW2 also deposed on the lines of PW1 and denied having issued the letter Ex.PW1/A, credit information report Ex.PW1/C and the statement of account Mark X. He stated that the letter heads Mark B and C do not belong to their bank and there was no account of M/s Paramount Insulation Company with Jain Cooperative Bank, Shahdara Branch. Nothing material came in the cross examination of PW1 and PW2 to discredit them.
85. In the instant case, when the proposal for sanction of loan was initiated vide note Ex. PW 33/D (D26), the valuation report from Ms. Uma Aggarwal was obtained. As per the report dated 06.03.2002, the property was valued for Rs.56.02 lacs. In this case, the legal opinion was also sought in respect of the property No. 78A Dilshad Garden which was offered as collateral security.
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86. Pursuant to the note, a letter dated 16.03.2002 Ex. PW 33/A (D27) bearing the signature of the accused P. R. Pujari was sent to M/s Paramount Insulation Co. at the above address whereby the party was requested to produce the mutation certificate in respect to the property to be mortgaged in its favour and give details about the family and business and submit original documents of the property for verification including the cost price and selling price of the product. A note dated 19.03.2002 Ex. PW 33/G (D28) was thereafter prepared by G. Sriram, Assistant Manager after getting the reply from the party vide dated 18.03.2002 which has the note of the accused P. R. Pujari interalia as under :
i. CR of the borrower be prepared.
ii. Talk to three references given and note down the discussions.
iii. The other brother Mr. Sanjay Jain to be taken as a guarantor. His A/L and CR be prepared.
iv. As EM proposal is worth Rs.56 lacs only, we can consider a limit of Rs.45 lacs only.
87. With the above note, a visiting card of accused Sushil Narain was attached. As per the visiting card, he was running a coaching and research institute in the name of Delhi Career Academy at Laxmi Nagar, Delhi81.
88. There is another note Ex. PW 32/DA (D29) in the hand of the accused P. R. Pujari dated 13.03.2002 which interalia finds mention that:
CC No. 21/12 04.12.2018 124 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 125 Checked up with Mr. Sushil Narain Delhi Career Academy.
He knows the person Mr. Sanjay Jain and Satish Chand Jain for the past eight years or so. He also checked up in the market and gave a good report about the party worth Rs.1.01.5 crores.
89. There is another note of the accused P. R. Pujari dated 20.03.2002 Ex. PW 33/B (D29) which is reproduced as under:
Visited the office and godown on 22.02.2002. Office cum godown is on one side. Godown is only room containing copper wire goods stacked neatly or 1200 or so, each costing about Rs.5,000/. Verified purchase, sales, stock registers.
The residence is adjacent to this block. The entire plot is much bigger. Only this portion, consisting of office, godown, one big hall etc is being given as collateral. The cost may be around 6065 lacs.
90. The valuation report Ex. PW 39/A (D19) which is proved by PW39 reveals that it was prepared in March, 2002 with name of the owner as Satish Chand Jain. This property consisted of one big hall, two rooms and one toilet and bearing Khasra No. 1076/5/2/403, Dilshad Garden Delhi measuring 490 Sq.
Yards freehold, vacant. The report finds mention that valuation is based on the information and data furnished by the owner in addition to visit at site and survey from various local estate agents. The value of the property was calculated as Rs.56.0 lacs.
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91. In this case, legal search report Ex. PW 37/A (D20) was submitted by the firm M. C. Kochhar and Associates which finds mention that the firm was forwarded with a photocopy of Sale Deed dated 27.12.2000 executed by Kuldeep Gupta, General Attorney in favour of Satish Chand Jain for a land measuring 490 sq. yards bearing property No. 78A out of Khasra No. 1076/5/2/400 in the area of Village Jhilmil Tahir Pur abadi of Dilshad Garden Illaqa Shahdara registered vide document No. 2966 in the office of SubRegistrar on 30.12.2000. The report also finds mention that the party has informed that the vendee has got the property mutated in his name with MCD. The bank was accordingly advised to obtain mutation letter in favour of the vendee. As per the report, the inspection was made of the record maintained in the office of the SubRegistrar and it was found that the aforesaid Sale Deed in favour of the vendee was duly registered at the particulars mentioned and there was no charge/encumbrance over the abovesaid property. He, however, advised the bank to obtain an affidavit that there is no charge/encumbrance over the above property and the vendee has a right to create equitable mortgage over the property by deposit of title deeds. He opined that the vendee has a good marketable, valid and subsisting title and he has a right to create equitable mortgage. The bank was advised to obtain the originals of the documents.
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92. It is pertinent to mention that the Assistant Manager (Loan) G. Sriram prepared a note dated 09.04.2002 (D36) wherein he had recorded that he had talked to Tarun Khanna R/o Bhola Nath Nagar and Mukesh Rana, proprietor Shanti Wires during the last week of March, the references mentioned in the loan application Ex. PW 47/A18 (D25). As per the note, both of them confirmed to have dealings with M/s Paramount Insulation Co. and have given positive opinion about its proprietor and Sanjay Jain stating that they are financially sound and have good market reputation and are in this line for quite a good number of years. He had also talked to M/s Creative Trading Co., a supplier to M/s Paramount Insulation Co. as revealed in their balance sheet. The company confirmed that the payments are regular and through cheques. It also gave healthy opinion as to the market standing. The note also finds mention that on 09.04.2002 morning, he (Assistant Manager G. Sriram) had visited the office cum godown of M/s Paramount Insulation Co. at Dilshad Garden and found the premises comprising of ground floor and first floor. Stock in the form of scrolls of copper wire was kept in cardboard boxes each weighing about 25 Kg (2000 boxes) costing Rs.150/ per KG total valuing Rs.75.0 lacs approximately. On the ground floor, there are some old plant and machineries in dilapidated condition. Apart from this, there are two shops seemingly let out. The note also finds CC No. 21/12 04.12.2018 127 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 128 mention that on enquiry, the party had revealed that they were engaged in manufacturing for eight years. In that note, reference was also given of the legal search report, valuation report and the credit information report sought from Jain Cooperative Bank Ltd. and making local enquiry from the people and the staff. It was mentioned in the note that Sanjay Jain has been asked to submit the relevant Tax Receipt and copies of the title deed as a proof of residential property in his name.
iii) Sanction of loan
93. The note of Assistant Manager G. Sriram dated 09.04.2002 carries an endorsement of the accused P. R. Pujari:
(Copy of the PO shown).
Property was not registered in his name. Sanctioned OCC/stock CBD for Rs.45.0 lacs under Trade Finance Scheme. (1) Security, Stock and book debt, hypothecation, (2) EM of property of Mr. S C Jain for Rs.56.0 lacs, personal guaranty of Sanjay Jain worth Rs.20.75 lacs and (3) other terms as proposed.
The endorsement bears the date of 10.04.2002. The Assistant Manager G. Sriram also prepared the credit report Ex. PW 33/E dated 10.04.2002 (D37) in respect of Sanjay Jain.
94. Vide letter Ex. PW 47/A2 dated 10.04.2002 (D38), the sanction was communicated to M/s Paramount Insulation Co. i.e. OCC against stock and book debts Rs.45.0 lacs for a CC No. 21/12 04.12.2018 128 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 129 period of one year with the covenants:
(i) The advances should be utilized for the purpose for which it is sanctioned.
(ii) OCC/packing credit would be allowed only against fully paid up stock and stock statement should be submitted at periodical intervals.
(iii) Assets/stocks charged to the bank should be insured with the bank for full value.
......
(v) Party should submit the NEC/house tax receipt, electricity bill, latest premium paid receipt, financial statements periodically.
......
(vii) Statements of book debts and statement of creditors alongwith the stock statements should be submitted once in three months duly certified by the Chartered Accountant.
.......
(xiv) All conditions specified in the legal opinion should be complied with for EM creation.
95. M/s Paramount Insulation Co. vide Ex PW 47/A23 (D39) dated 10.04.2002 also submitted the detailed stock statement for Open Cash Credit showing copper vending wires 40425.7kg at Rs.152.50 per kg, total value Rs.61,64,919.20. It also submitted the list of debtors and creditors vide letter Ex. PW 47/A25 dated 10.04.2002 (D34) showing M/s Creative Trading Co. as creditor and other companies as debtors.
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iv) Execution of loan documents
96. Pursuant to the sanction of the OCC, M/s Paramount Insulation Co. through its proprietor Satish Chand Jain executed/submitted the following documents :
i. Original Sale Deed of the property 78A Dilshad Garden, Delhi in the name of Satish Chand Jain Ex. PW 20/2 (D47).
ii. Original GPA in favour of Kuldeep Gupta Ex. PW 47/A27 (D48).
iii. Original Agreement to Sell by Mohanlal and others in favour of Kuldeep Gupta Ex. PW 47/A28 (D49).
iv. Original receipt Ex. PW 47/A29(D50) given by Mohanlal and others to Kuldeep Gupta.
v. Copy of the Sale Deed executed by Gauri Devi in favour of Mohanlal and others Mark X. vi. Affidavit by Satish Chand Jain Ex. PW 47/A30(D
52) declaring that he is the owner and in possession of the property measuring 490 sq. yards bearing No. 78A, out of Khasra No. 1076/5/2/400 situated in Village Jhilmil Tahir Pur in the abadi of Dilshad Garden, Illaqa Shahdara, Delhi and there is no charge/encumbrance over the above property.
vii. Khasra Girdavari Ex. PW 47/A31 dated 18.02.2002 (D53) in the name of Satish Chand Jain.
viii. Demand Promissory Note Ex. PW 47/A32 (D54) dated 10.04.2002 by Satish Chand Jain.
ix. Declaration by Satish Chand Jain Ex. PW 47/A33(D
55) that he is the sole proprietor of M/s Paramount Insulation Co.
CC No. 21/12 04.12.2018 130 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 131 x. Agreement for OCC dated 10.04.2002 in favour of the bank Ex. PW 47/A34 (D56) xi. Statement of inventories and receivables for OCC stocks/book debts Ex. PW 47/A36(D57) dated 10.04.2002.
xii. Agreement for OCC ( stock and book debts) Ex. PW 47/A35 dated 10.04.2002 (part of D57).
xiii. Consent letter by the borrower for disclosure of the names in the event of default Ex. PW 47/A37 dated 10.04.2002 (D58).
xiv. Declaration that he is not enjoying credit facilities from any other bank Ex. PW 47/A38(D59).
97. The guarantor Sanjay Jain executed the Agreement for Guarantee dated 10.04.2002 Ex. PW 47/A39 (D60). The entry in this respect was made in the register of Equitable Mortgages maintained by the bank (D62). On 12.04.2002, Satish Chand Jain gave a letter to the bank confirming the creation of equitable mortgage giving the list of documents submitted with the bank vide Ex. PW 47/A40 (D61).
v) Post loan stock statements
98. After getting the OCC, M/s Paramount Insulation Co.
submitted a stock statement as on 31.07.2002 on the letter head Ex. PW 47/A24 (D40) showing the copper vending wires 55992.600 kg @ Rs. 153/ per kg total valuing CC No. 21/12 04.12.2018 131 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 132 Rs.85,66,868/ in terms of sanction advice. It also submitted a list of debtors and creditors as on 31.07.2002 Ex. PW 47/A26(D42) whereby M/s Creative Trading Co. and M/s Alpha Communications (India) were shown as creditors for Rs.94,18,796/.
D. Property No. 78A Dilshad Garden, Delhi which was mortgaged as collateral security for loan
99. A perusal of record and the testimony of PW7 Nehru Jain would reveal that Smt. Gauri Devi was the owner of the property bearing no. 78A Dilshad Garden, Delhi measuring 4919 sq. yards. She had sold the property to Mohan Lal Jain, Raj Bahadur Jain S/o Jugal Kishore Jain R/o Dev Band, Areh Dass Jain S/o Ulfat Rai Jain, R/o Daryaganj, Delhi and Raj Bahadur Jain S/o Jugal Kishore Jain, R/o Dilshad Garden, Delhi vide Sale Deed Ex.DW5/A/ Ex.PW25/2. They divided the property among themselves. An area of about 1100 sq. yards came in the share and possession of Raj Bahadur Jain S/o Sh. Jugal Kishore Jain, R/o Dilshad Garden, Delhi. PW7 is the son of Raj Bahadur Jain. Testimony of PW7 reveals that Raj Bahadur Jain died on 01.02.1975. He placed on record his death certificate Ex. PW7/A (D172) and stated that he has four sisters namely, Anita Jain, Nisha Gupta W/o Vijay Kumar Gupta, Rajni Jain and Shashi Jain.
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100. PW25 who is from Archivist Department handed over the certified copy of the Sale Deed Ex.DW5/A (Ex.PW25/2) to CBI which bears the registration no. 2373, Additional Book No. 1, Volume no. 422, pages 99 to 104 dated 05.05.1958. He has stated that as per the Sale Deed, the area of the plot was 4919 sq. yards, Class A Block West. It is relevant to mention that A represents A Block.
101. PW7 has deposed that the share of Raj Bahadur S/o Jugal Kishore R/o Dev Band, U.P went to Smt. Kanta Devi Jain, who sold it to Vijay Kumar Gupta and Nisha Gupta vide Sale Deed dated 07.08.2002 Mark X2 (D175). He stated that the other shareholders also sold their shares to different persons. PW7 was shown the Sale Deed dated 27.12.2000 (D47) in the name of Satish Chand Jain bearing the photograph of Rakesh Verma as Vendor and Sharad Kumar Jain as Vendee of the property bearing no. 78A, Dilshad Garden, Delhi and he stated that he never sold the property to anyone. No person by the name of Satish Chand Jain S/o N.M. Jain and Kuldeep Gupta S/o Nanu Mal lived in the said property. He and his sisterinlaw Preeti Jain live in the said property with their family and pay the Municipal Taxes.
102. PW7 was also shown GPA Ex.PW47/A27 dated 09.05.1984, Agreement to Sell Ex.PW47/A28, Receipt Ex.PW47/A29 (D50) purportedly executed by Mohan Lal, Raj Bahadur S/o Jugal Kishore, A. Dass S/o Ulfat Rai and Raj Bahadur S/o CC No. 21/12 04.12.2018 133 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 134 Jugal Kishore in favour of Kuldeep Gupta in respect to the property bearing no. 78A, Dilshad Garden, Delhi. He stated that the above documents do not bear the signature of his father Raj Bahadur S/o Jugal Kishore R/o Dilshad Garden. He stated that his father had expired on 01.02.1975 while the above documents were purportedly executed on 09.05.1984.
103. PW7 has stated that he had given the property on rent to Sanjay Gupta vide Rent Agreement Ex. PW7/B1 in 1992 where Sanjay Gupta used to run a factory in the name of M/s Sharda Metals. He stated that Sanjay Gupta vacated the premises in 2002 and in this respect he had executed surrender of possession Ex. PW7/C (D156).
104. In the instant case, PW20, who had been working in the Office of SubRegistrar, Seelampur during the period from 14.09.1999 to 26.11.2001, was shown the certified office copy of the Sale Deed of the property no. 78A, Dilshad Garden bearing registration no. 2966 dated 30.12.2000, Book No. 1, Vol. no. 3254, Page 73 to 77 in the name of Satish Chand Jain S/o N.M. Jain R/o 78A, Dilshad Garden, Delhi, Ex.PW20/1. He was also shown the original of the Sale Deed Ex. PW20/2 submitted to the Indian Bank at the time of execution of the loan documents and he stated that the registration number on the copy Ex. PW20/2 is not in his hand. The photograph of the purchaser i.e. Satish Chand Jain affixed on Ex. PW20/2 is different from the photograph of the CC No. 21/12 04.12.2018 134 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 135 purchaser i.e. Satish Chand Jain on Ex. PW20/1. In the third line of Ex. PW20/1, the property no. is mentioned as 78A which is not depicted in Ex. PW20/2. The serial no. of non judicial paper for Rs. 15,000/ seems to have been rubbed on Ex. PW20/2.
105. Stamp Vendor/PW42 was shown the copy of the stamp paper issue register page 332, serial no. 37910 regarding the entry of sale of stamp papers of Rs. 32,000/ in the name of S.C. Jain S/o N. M. Jain R/o 78A, Dilshad Garden Ex. PW20/A1 and the sale deed Ex. PW20/2 (D47) and he stated that as per the register, the stamp papers were sold to S.C. Jain.
106. PW50 was shown the Sale Deed Ex. PW20/1 (D224) (authenticated office copy) executed by Kuldeep Gupta in favour of Satish Chand Jain regarding the property no. 78A, Dilshad Garden and also the original sale deed Ex. PW20/2 (D47) deposited with the Bank and he pointed out the following discrepancies:
(i) Photograph of purchaser Satish Chand Jain on original sale deed is different from the authenticated office copy.
(ii) Authenticated photocopy of office record i.e. Ex.
PW20/1 bears signature of Kudeep Gupta at two places on first page whereas alleged original i.e. Ex.PW20/2 bears only one signatures on first page.
(iii) There is some difference with respect to thumb impression with respect to Kuldeep Gupta on first page and on reverse.
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(iv) There is difference in treasury stamp.
(v) Stamp number is mentioned on the stamped of
denomination of Rs. 10,000/ and above and serial numbers on stamp on first two pages appeared to be rubbed.
(vi) Treasury stamp on alleged original i.e. Ex. PW20/2 is also different.
107. PW46 who was SubRegistrar, Seelampur during the period from December 2000 to September 2001 was also shown the Sale Deed dated 30.12.2000 purportedly executed by Kuldeep Gupta S/o Nanu Mal R/o 78A, Dilshad Garden in favour of Satish Chand Jain S/o Late Sh. N.M. Jain R/o 78A, Dilshad Garden of the property bearing no. 78A, Dilshad Garden, Delhi having registration no. 2966 dated 30.12.2000 Book No. 1, Vol. 3254 page 73 to 77 and he stated that the above Sale Deed Ex. PW20/2 does not bear his signature.
108. PW30 who was in the House Tax Department MCD has stated that he had inspected the premises 78A, Dilshad Garden, Delhi and given his report Ex.PW30/A1, as per which, the House Tax in respect of the above property is in the name of Smt. Kanta Devi Jain, Smt. Preeti Jain, Smt. Poonam Jain and Manish Jain. He proved the house tax bills in their names in respect of property no. 78A Dilshad Garden, Delhi.
109. As regards mutation/Khasra Girdawari/Jamabandi, PW31 who had been working as Tehsildar Nazul DDA has stated CC No. 21/12 04.12.2018 136 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 137 that no Patwari in the name of Vijender was posted in the Zone during the period from January, 1999 to March, 2002 and the Khasra Girdawari mark PW31/A (D53) which was enclosed with the letter dated 22.07.2004 Ex.PW33/A, is a forged document because after urbanization of village Jhilmil, Tahirpur in 1988, no Girdawari had taken place. He stated that as per the record, property 78A Dilshad Garden, Jhilmil, Tahirpur village falls in Khasra nos. 466/232443/1 (201), 466/232443/2 (010), 466/232444/3 (019), 466/232443/4 (09) in the name of Raj Bahadur S/o Sh. Jugal Kishore, Shahdara and 466/232443/5 measuring (018) in the name of Ravi Dass S/o Ulfat Rai R/o Darya Ganj. PW31 proved the Jamabandi of the property bearing no. 466/232443/5 (018) and stated that Khasra no. 1076/5/2/403 falls about 2 Kilometers away from the property no. 78A Dilshad Garden, Delhi. It is pertinent to mention that the sale deed Ex.PW15/DA finds mention the Khasra no. 1076/5/2/403.
110. It is to be noted that when the loan documents were executed on behalf of M/s Paramount Insulation Company by Satish Chand Jain, he had submitted a Khasra Girdawari and Jamabandi claiming to be the owner of the property but the record of Nazul Department DDA would show that no Jamabandi / Khasra Girdawari was issued in the name of Satish Chand Jain and the signatures of Vijender Patwari on the said document was forged as he never remained posted in CC No. 21/12 04.12.2018 137 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 138 the Nazul department, DDA nor any Khasra Girdawari was issued after the year 1988. The GEQD report shows that it was the accused Sanjay Gupta who had prepared the Khasra Girdawari and signed as Vijender (Patwari).
111. In this case, the prosecution has also examined PW28, official from the Election Office. He has stated that the Voter I Card No. DL04044/163924 in the name of Satish Chand Jain S/o N M Jain R/o 78A Dilshad Garden was not issued from their Electoral office.
112. It has already come in the testimony of PW7 Nehru Jain, PW21 Preeti Jain, PW22 Inder Singh and PW23 Nirmaljit Singh that no person by the name of Satish Chand Jain/S. C. Jain and Sanjay Jain lived at the premises 78A, Dilshad Garden, Delhi. Testimony of PW7 and other witnesses would also show that Sharad Kumar Jain was the employee of Sanjay Gupta in M/s Sharda Metals at 78A, Dilshad Garden, Delhi. Testimony of PW7 reveals that the person who had executed the Sale Deed in respect of the property 78A Dilshad Garden, Delhi as Kuldeep Gupta was Rakesh Verma who used to work with Sanjay Gupta in his firm/company M/s Sharda Metals at 78A, Dilshad Garden, Delhi and in that Sale Deed, Sanjay Gupta had impersonated as Inder and signed as a witness. It is also to be mentioned that in the Sale Deed registered before the SubRegistrar Seelampur, photo of Pankaj Garg who is stated to be the nephew of Sanjay Gupta CC No. 21/12 04.12.2018 138 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 139 has been affixed, however, the signature on the Sale Deed as per the GEQD report is found to be of Sharad Kumar Jain and in that Sale Deed, name of the vendee has been mentioned as Satish Chand Jain. At the time of execution of loan documents, as evident from the testimonies of the witnesses, the replica of the original Sale Deed in favour of Satish Chand Jain was deposited with the Indian Bank which has the photograph of Rakesh Verma as Kuldeep Gupta (vendor) and Sharad Kumar Jain as Satish Chand Jain (vendee). Further, GEQD report confirmed that Rakesh Verma had signed as Kuldeep Gupta and Sharad Kumar Jain had signed as S. C. Jain in the Sale Deed deposited with the bank. The report and the testimonies of the officials of the SubRegistrar office also show that even the replica of the Sale Deed submitted to the bank was different from the certified copy of Sale Deed available in the office of SubRegistrar.
113. From the above, it is clear that property no. 78A, Dilshad Garden, Delhi belongs Nehru Jain part of which he had given on rent to Sanjay Gupta for running his company M/s Sharda Metals. Satish Chand Jain and Sanjay Jain were never the owners of the above property nor they ever lived at the said property. It was Sharad Kumar Jain, employee of Sanjay Gupta who impersonated as Satish Chand Jain. It was Sanjay Gupta who impersonated as Sanjay Jain. Rakesh Verma was also the employee of Sanjay Gupta. He CC No. 21/12 04.12.2018 139 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 140 impersonated as Kuldeep Gupta and executed the sale deed of the above property in favour of Satish Chand Jain which was witnessed by Sanjay Gupta who signed as Inder Pal Singh. The property never belonged to Kuldeep Gupta nor Kuldeep Gupta was the attorney of Mohan Lal and Others. PW7 Nehru Jain and PW21 Preeti Jain live in the above property and pay the municipal taxes.
E. Handwriting and Specimen Signatures
114. In the instant case, questioned signatures/writings were sent for comparison with the admitted signatures/writings and specimen signatures/ writings of the accused persons and the GEQD reports Ex. PW 47/A44 (D233) and Ex.PW47/A43 (D192) are as under:
1. The writings stamped and marked Q179 to Q182, S16 to S75, S91 to S100, S106 to S121 and S126 to S135 have been written by one and the same person i.e. Sanjay Gupta (A2)
2. The writings stamped and marked Q170 to Q177 and S140 to S149 have been written by one and the same person i.e. Rakesh Verma (A7).
3. The signatures stamped and marked Q1 to Q48, Q52 To Q54, Q58 to Q66, Q77 to Q90 and S1 to S14 have been written by one and the same person i.e. Sharad Kumar Jain.
4. The writings and signatures stamped and marked Q91, Q013 to Q111, Q113 to Q121, Q123 to CC No. 21/12 04.12.2018 140 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 141 Q127, Q127A, Q128 to Q131, Q135 to Q153, Q168, Q169 and S16 to S95 have been written by one and the same person i.e. Sanjay Gupta (A2).
5. The red signatures stamped and marked Q164 to Q167 and A1 to A8 have been written by one and the same person i.e. Deepak Bansal (A5).
4. The red signatures stamped and marked Q155 to Q162, Q162A, Q163 and A9 to A11 have been written by one and the same person i.e. P. N. Upadhyay (A6).
115. Admittedly, when the IO took their specimen signatures/ handwritings/fingerprints /thumb impressions of the accused persons, he did not take permission from the court, some of the accused persons were in the custody of the police/CBI and IO did not give them warning before taking their specimen signatures/ handwritings/ fingerprints/thumb impressions that those could be used against them and PW52 who had witnessed taking of specimen signatures/ handwritings of the accused P.N. Upadhyay, PW54 who had witnessed taking of specimen signatures/handwritings of accused Sharad Kumar Jain and Sanjay Gupta, PW56 who had witnessed taking of specimen signatures/handwritings of Rakesh Verma and Tarun Khanna @ Sonu, PW57 who had witnessed taking of the specimen signatures/ handwritings of the accused Tarun Khanna @ Sonu, PW58 who had witnessed taking of the specimen signatures/ handwritings of the accused Sanjay Gupta and PW56 who had witnessed taking of the thumb CC No. 21/12 04.12.2018 141 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 142 impressions/finger prints of the accused Rakesh Verma and Tarun Khanna @ Sonu did not identify the accused persons and they have stated that the IO did not show them the identity proof of the accused persons, but it has come in the testimony of the IO/PW60 that the accused persons had given their specimen signatures/handwritings and fingerprints/ thumb impressions voluntarily and no force was used while taking their specimen signatures/ handwritings/ fingerprints/ thumb impressions. He has stated that he had also taken signatures of accused Sharad Kumar Jain from Vyasya Bank. None of the witnesses has stated that their specimen signatures/ handwritings/ fingerprints/thumb impressions were taken by using force.
116. Question now arises whether it would amount to irregularity or illegality?
117. Section 45 of Indian Evidence Act provides that when the Court has to form an opinion as to the identity of handwriting or finger impression, the opinion of an expert is a relevant fact. If in the opinion of an expert, the two handwritings match with each other, this per se attains the color of conclusive evidence. To say it differently, the matching of two handwritings is in itself is a conclusive evidence u/s 45 of Indian Evidence Act if the Court is convinced from the report of an expert in this regard. The opinion of the handwriting expert is sought only to facilitate the Court to form an opinion CC No. 21/12 04.12.2018 142 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 143 on this point. The appropriate interpretation of Section 45 of Indian Evidence Act coupled with section 73 of the Evidence Act is that court is competent to form its own opinion on the point of identity of handwriting and for that purpose, the court may call for the report of an handwriting expert. Therefore, the relevant fact before this court is the matching or non matching of the handwriting. The Supreme Court in Murari Lal v. State of M.P., AIR 1980 SC 531 has held that handwriting expert is not an accomplice and there is no justification for condemning his opinion evidence. It was held that if the Court is convinced from the report of an expert that the questioned handwriting was of the accused, there is no difficulty in relying upon the expert's opinion without any corroboration.
118. In State of Uttar Pradesh v. Ram Babu Misra AIR 1980 SCC 791 and Sapan Haldar & Anr v. State 191 (2012) DLT 225(FB), the Court discussed the case of State of Bombay vs. Kathi Kalu Oghad, AIR 1961 SC 1808. The issue in Ram Babu Misra's case supra was whether the Magistrate was empowered u/s 73 of the Indian Evidence Act, 1872 to direct the accused to give his specimen writing when the case was still under investigation. It was held that the Section 73 of the Evidence Act contemplated pendency of some proceedings before a Court and it does not permit a Court to give a direction to the accused to give specimen writings for CC No. 21/12 04.12.2018 143 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 144 anticipated necessity for comparison in a proceeding which may later be instituted in the Court. While discussing Kathi Kalu Oghad's case supra, it was observed that the question whether such a direction u/s 73 of the Evidence Act could be given when the matter was still under investigation and there was no proceeding before the Court was expressly left open and this question was not considered in the said case. It was further observed that the question that was actually decided by the Supreme Court in Kathi Kalu Oghad's case supra was that no testimonial compulsion under Article 20(3) of the Constitution of India was involved in a direction to give specimen signature and handwriting for the purpose of comparison. In Sapan Haldar's case supra, the High Court while deciding a reference held that it was apparent that neither section 4 nor section 5 of the Identification of Prisoners Act, 1920 would encompass a handwriting.
119. In the State of Bombay vs. Kathi Kalu Oghad and Ors., supra, it was held:
"...We agree therefore with the conclusion reached by the majority of the Bench that there is no infringement of Art. 20 (3) of the Constitution by compelling an accused person to give his specimen handwriting or signature; or impressions of his fingers, palm or foot to the investigating officer or under orders of a court for the purpose of comparison under the provisions of section 73 of the Indian Evidence Act..."
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120. The issue as law laid down in Ram Babu Misra's case supra and in Sapan Haldar's case supra on one hand and law laid down in Kathi Kalu Oghad's case supra on the other hand came up before the High Court of Delhi in Rekha Sharma vs. CBI, Crl. Appeal no. 124/2013 and other decided on 05.03.2015 wherein cases of Sapan Halder (supra), The State of Bombay vs. Kathi Kalu Oghad and Others, 1961 AIR 1808, Ravinder Kumar Pal alias Dara Singh vs. Republic of India reported as (2011) 2 SCC 490, State (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600, Selvi vs. State of Karnataka (2010) 7 SCC 263, State of U.P. vs. Ram Babu Mishra 1980 2 SCC 343, State of Orissa vs. Sudhansu Sekhar Misra, (1970) ILLJ 662 SC and Orient Paper and Industries Ltd & Anr vs. State of Orissa and Ors. (1991) Supp. 1. SCC 81 were discussed. Vide judgment dated 05.03.2015, High Court of Delhi held:
"...306 It has been repeatedly held by the Apex Court that judicial discipline obliges the High Courts of the land to follow the judgments of the Supreme Court and the mere fact that a particular provision or argument was not considered by the Supreme Court while deciding a case would not denude its precedential value.
307 Strong reliance is placed on a judgment of a Three Judge Bench of this High Court in Sapan Haldar (supra). As a matter of fact the judgment in Sapan Haldar case (supra) rightly recognizes the fact that the Magistrate could not have been approached by the investigating agency in terms of Section 5 of the CC No. 21/12 04.12.2018 145 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 146 Identification of Prisoners Act, 1920 for obtaining handwriting exemplars. The Court rightly opined in Para 31(i) that handwriting and signatures are not measurements and, therefore, do not fall within the ambit of the Identification of the Prisoners Act, 1920.
However, it is submitted that in para 19, it was erroneously concluded that the police officer during investigation could not have obtained such signatures on his own. It would be pertinent to highlight that the said conclusion is sans any reasoning or discuss whatsoever;
308 The High Court in Sapan Haldar's case (supra) did not advert its precious consideration to the definition of the term investigation prescribed under Section 2(h) of Cr.P.C., which has also been subject matter of interpretation in catena of judgments of the Supreme Court which have held it to have a broad and inclusive connotation. The High Court lost sight of the fact that the Supreme Court in its judgment in the case of Selvi vs. State of Karnataka reported as (2010) 7 SCC 263 has held that the term investigation includes steps which are not exhaustively and expressly enumerated.
448 The decision in Sapan Haldar (Supra) again has considered the question whether handwriting and signature specimens are obtainable under Section 4 and 5 of the Identification of Prisoners Act, 1920 and the Court observed that since both handwriting and signature of a person are not a mark of identification, the same cannot be "measurement" as defined under Section 2(a) of the Identification of Prisoners Act. However, the very next line which declares that an investigating officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence is in teeth with the view adopted by the Supreme Court in Navjot Sandhu (supra) and Dara Singh (supra) .
CC No. 21/12 04.12.2018 146 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 147 449 In view of the aforesaid discussion, I am of the opinion that the report of the expert and analysis of handwriting and signature specimens of the accused persons cannot be rendered inadmissible on the ground that it was obtained in violation of prescribed procedure..."
121. In this case, PW47 has proved the reports Ex. PW 47/A43 (D192) and Ex.PW47/A44 (D233) in respect of the questioned documents which were compared with the specimen handwriting and signatures of the accused persons. He also proved his report Ex.PW47/A45 (D192) and Ex.PW47/A46 (part of D233). PW47 has stated that his Assistant I K Arora was also with him who had independently examined the documents and they had come to the same conclusion which has been mentioned in the reports. He has stated that they had taken all the necessary precautions while preparing the reports. He also proved the specimen writing and signature of Sharad Kumar Jain S1 to S15 Mark PW47/PX2 to PW47/PX16, Sanjay Gupta S16 to S136 Mark PW47/PX17 to PW47/PX136, Rakesh Verma S140 to S149 Mark PW47/PX137 to PW47/PX146, admitted signature of Deepak Bansal A1 to A8 Ex.PW10/A to Ex.PW10/E and P. N. Upadhyay A9 to A11 Ex.PW8/B to Ex.PW8/D. He denied that questioned and admitted / standard writings pertaining to S. K. Jain and S. C. Jain are visibly different in the documents on record. He admitted that some CC No. 21/12 04.12.2018 147 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 148 of the documents were sent in original and some were photocopies of which he did not ask for the originals but he denied that the report was prepared in a mechanical manner. He stated that if the material is sufficient, definite opinion can be given by an expert. He has stated that the opinion can be given on the photocopies and there are methods to detect the tampering. He has stated that examination of the writing was done word by word and letter by letter. He has denied that there is difference in the spelling of the accused Kuldeep Gupta on different pages.
122. In the instant case, the reports Ex. PW 47/A43 to Ex.PW47/A46 clearly show that the questioned documents and the specimen documents were written by one and the same persons i.e. the accused Sharad Kumar Jain as S. C. Jain or S. K. Jain, Sanjay Gupta as Sanjay Jain as Inder Pal Singh, Rakesh Verma as Kuldeep Gupta and Tarun Khanna @ Sonu as Deepak Bansal.
123. I agree with the view expressed by PW47 that there is no difference in the spellings of the signatures of the accused Kuldeep Gupta except at page 1 of Ex.PW20/2 (D47). I also endorse the observations of PW47 that the characters in the handwriting and signatures may differ sometimes but handwriting identifications / characteristics will remain the same and it is not necessary for a person to write same specimen writing for comparison from the questioned CC No. 21/12 04.12.2018 148 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 149 documents from naked eye. I find that one and the same person i.e. Rakesh Verma whose photographs have been affixed on the sale deed Ex.PW20/1 (D224) and sale deed Ex.PW20/2 (D47) had signed as Kuldeep Gupta which is also the report of PW47 judicial notice of which is taken u/s 45 and 73 of the Evidence Act.
124. Admittedly, the signatures of Deepak Bansal appearing on the account opening form of M/s Alpha Communications (India) as an introducer were not sent to GEQD but it does not carry any significance as in this case the bank official has identified the signatures of Deepak Bansal appearing on the account opening form of M/s Paramount Insulation Pvt. Ltd which bears the photo of Tarun Khanna as Deepak Bansal stating that the director of M/s Paramount Insulation Pvt. Ltd, Deepak Bansal had signed as introducer in his presence and the record reveals that it was Tarun Khanna @ Sonu who had impersonated as Deepak Bansal when the account of M/s Paramount Insulation Pvt. Ltd was opened. Further, GEQD report shows that admitted signatures A1 to A8 on the account opening form of M/s Paramount Insulation Pvt. Ltd matched with the questioned signatures Q167 i.e. on the cheque Ex.PW12/C (D193) which was issued from the account of Alpha Communications (India) and encashed by Tarun Khanna as Deepak Bansal.
CC No. 21/12 04.12.2018 149 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 150
125. It is true that the specimen signatures of the accused persons were taken during investigation and the permission from the Court was not sought but in this case, the prosecution has examined the witnesses in whose presence the accused persons had signed the documents. They have identified their signatures on some of the questioned documents as discussed above. Comparison of these questioned documents with the other questioned documents as well as the documents forming part of reports unerringly leads to an inevitable conclusion that the signatures of the accused persons on the questioned documents identified by the witnesses match with the specimen signatures of accused persons. The signatures on other questioned documents also match with the specimen signatures of accused persons meaning thereby that the signatures on questioned documents identified by witnesses would also match with the signatures of accused persons on the other questioned documents. It has been held in catena of judgments that u/s 73 of the Indian Evidence Act, 1872, the Court is entitled to make comparison of disputed and admitted signatures for a just conclusion more so in such a peculiar situation as described above.
126. In view of the proposition of law laid down in the case of Kathi Kalu Oghad's case supra and Rekha Sharma v. CBI Crl. Appeal No. 124/2013 coupled with the above discussions, this Court has no hesitation in holding that the CC No. 21/12 04.12.2018 150 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 151 reports of the expert and analysis of specimen signature of the accused persons cannot be rendered inadmissible. As has been discussed in Kathi Kalu Oghad's case supra, mere asking by a police officer investigating a crime against a certain individual to do a certain thing is not compulsion within the meaning of Art. 20(3) of the Constitution of India.
127. I may usefully refer the case of Munna Kumar Upadhyay v.
State of Andhra Pradesh, 2012 III AD (CRI) (S.C) 269 and Crl. Appeal No. 1316 of 2008 wherein Supreme Court has held that if accused gives false defence in his statement u/s 313 CrPC, Court can draw an adverse inference against him. In the present case, the accused persons have taken a false defence that they did not sign any document. Certainly such conduct of the accused persons would also tilt the case in favour of the prosecution.
F. Inter firms transfers, unauthorized debits from the account of M/s Paramount Insulation Pvt Ltd, nonutilization of funds for genuine trade transactions, diversion of amount through dummy accounts and sham business transactions
128. A perusal of sanction advice Ex. PW 47/A22 (D38) would reveal that Open Cash Credit limit of Rs.45.0 lacs against stock and book debts was sanctioned in favour of M/s Paramount Insulation Co. on 10.04.2002 with the conditions CC No. 21/12 04.12.2018 151 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 152 that the amount should be utilized for the purpose for which it was sanctioned. OCC would be allowed only against fully paid up stock to be submitted at periodical intervals. Assets/stocks should be insured with the bank for full value and the party should submit the statements of book debts and creditors alongwith stock statements once in three months duly certified by the CA. As per the application for loan Ex. PW 47/A16 (D23), the company was dealing in Copper wires/ Copper winding wires.
129. The company opened the Current Account on 11.04.2002 which was converted into OCC A/c No. 13030 on the same day. A cheque book was also issued to the company. A Godown Inspection Register Ex. PW 33/J for the period from 05.07.2002 to 27.11.2002 was maintained. PW33 proved the cheques Ex. PW 33/K1 to Ex. PW 33/K35 (D75, D78, D79 to D85, D87 to D96 and D98 to D113) issued from CC A/c No 13030 maintained by the company. Perusal of cheques would reveal that the above cheques were issued from the account of M/s Paramount Insulation Co. to M/s Alpha Communications (India), M/s Creative Trading Co., M/s Aman Trading Co and self. It has also come in evidence that M/s Alpha Communications (India) belonged to the accused Sharad Kumar Jain.
CC No. 21/12 04.12.2018 152 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 153
130. The details are reproduced as under:
S. Name of the Name of the Bank. Cheques No. Amount Ex.No. & No firm and date (In Rs.) D No. 1 M/s. Alpha Vysya Bank Ltd., 810401, 14,68,705/ PW33/K1 Communicatio Yamuna Vihar. dtd.27.04.02 (D75) n (India) 2 M/s. Alpha do 810402, 9,93,220/ PW47/A (D76) Communicatio dtd.27.04.02 n (India) 3 M/s Creative Canara Bank, 810404, 6,00,000/ PW47/A1 (D77) Trading Co. Diplomatic enclave dtd.02.05.02 Br., New Delhi 4 M/s Creative do 810403, 13,65,003/ PW32/A2 (D78) Trading Co. dtd.01.05.02 5 M/s. Alpha Vysya Bank Ltd., 810407 1,00,000/ PW33/K3 (D79) Communicatio Yamuna Vihar dtd.11.05.02 n (India) Branch, Delhi 6 M/s. Alpha do 810408 10,78,990/ PW33/K4 (D80) Communicatio dtd.13.05.02 n (India) 7 M/s Creative Canara Bank, 810411, 9,62,220/ PW33/K5 (D81) Trading Co. Diplomatic enclave dtd.15.05.02 Br., New Delhi 8 M/s Creative Canara Bank, 810410, 6,64,105/ PW33/K6 (D82) Trading Co. Diplomatic enclave dtd.15.05.02 Br., New Delhi 9 M/s Creative do 810412, 5,98,165 / PW33/K8 (D84) Trading Co. dtd.22.05.02 10 M/s Creative do 810413, 5,00,000/ PW33/K7 (D83) Trading Co. dtd.22.05.02 11 M/s Creative do 810414, 5,17,220/ PW33/K9 (D85) Trading Co. dtd.22.05.02 12 M/s. Alpha Vysya Bank Ltd., 810416 14,73,109/ PW47/A2 Communicatio Yamuna Vihar dtd.13.06.02 (D86) n (India) Branch, Delhi 13 M/s. Alpha Vysya Bank Ltd., 810417 9,75,110/ PW33/K10 (D87) Communicatio Yamuna Vihar dtd.15.06.02 n (India) Branch, Delhi 14 M/s Creative Canara Bank, 810419, 7,01,530/ PW33/K11 (D88) Trading Co. Diplomatic enclave dtd.20.06.02 Br., New Delhi 15 M/s Creative Canara Bank, 810418, 12,98,890/ PW33/K12 (D89) Trading Co. Diplomatic enclave dtd.20.06.02 Br., New Delhi 16 M/s. Alpha Vysya Bank Ltd., 810422 9,65,525/ PW33/K13 (D90) Communicatio Yamuna Vihar dtd.22.06.02 CC No. 21/12 04.12.2018 153 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 154 S. Name of the Name of the Bank. Cheques No. Amount Ex.No. & No firm and date (In Rs.) D No. n (India) Branch, Delhi 17 M/s. Alpha Vysya Bank Ltd., 810421 6,96,734/ PW33/K14 (D91) Communicatio Yamuna Vihar dtd.22.06.02 n (India) Branch, Delhi 18 M/s Creative Canara Bank, 810423 11,95,733/ PW33/K15 (D92) Trading Co. Diplomatic enclave dtd.25.06.02 Br., New Delhi 19 M/s Creative Canara Bank, 810424, 8,98,106/ PW33/K16 (D93) Trading Co. Diplomatic enclave dtd.07.07.02 Br., New Delhi 20 M/s. Alpha Vysya Bank Ltd., 810425 4,42,295/ PW33/K17 (D94) Communicatio Yamuna Vihar dtd.16.08.02 n (India) Branch, Delhi 21 M/s Creative Canara Bank, 810426, 5,30,000/ PW33/K18 (D95) Trading Co. Diplomatic enclave dtd.19.08.02 Br., New Delhi 22 M/s. Alpha Vysya Bank Ltd., 810427 2,06,305/ PW33/K19 (D96) Communicatio Yamuna Vihar dtd.21.08.02 n (India) Branch, Delhi 23 M/s Creative Canara Bank, 810429, 9,17,036/ PW47/A3 Trading Co. Diplomatic enclave dtd.23.08.02 (D97) Br., New Delhi 24 M/s Creative Canara Bank, 810428, 12,24,136/ PW33/K20 (D98) Trading Co. Diplomatic enclave dtd.23.08.02 Br., New Delhi 25 M/s Creative Canara Bank, 810430, 2,62,160/ PW33/K21 (D99) Trading Co. Diplomatic enclave dtd.03.09.02 Br., New Delhi 26 M/s Creative Canara Bank, 810433, 16,00,000/ PW33/K22 (D Trading Co. Diplomatic enclave dtd.13.09.02 100) Br., New Delhi 27 M/s Creative Canara Bank, 810435, 13,49,165/ PW33/K23 (D Trading Co. Diplomatic enclave dtd.13.09.02 101) Br., New Delhi 28 M/s Aman Canara Bank, 810437, 10,00,000/ PW33/K24 (D Trading Co. Diplomatic enclave dtd.19.09.02 102) Br., New Delhi 29 M/s Aman Canara Bank, 810438, 14,34,009/ PW33/K25 (D103) Trading Co. Diplomatic enclave dtd.29.09.02 Br., New Delhi 30 M/s Creative Canara Bank, 810440, 16,28,310/ PW33/K26 (D Trading Co. Diplomatic enclave dtd.01.10.02 104) Br., New Delhi CC No. 21/12 04.12.2018 154 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 155 S. Name of the Name of the Bank. Cheques No. Amount Ex.No. & No firm and date (In Rs.) D No. 31 M/s Creative Canara Bank, 810439, 14,50,00/ PW33/K27 (D Trading Co. Diplomatic enclave dtd.30.09.02 105) Br., New Delhi 32 Self Cash drown by Sh. 810443, 6,30,000/ PW33/K28 (D P.N. Upadhyay, dtd.07.10.02 106) Accountant.
33 M/s Creative Canara Bank, 810444, 4,01,320/ PW33/K29 (D Trading Co. Diplomatic enclave dtd.12.10.02 107) Br., New Delhi 34 M/s Aman Canara Bank, 810445, 9,18,620/ PW33/K30 (D Trading Co. Diplomatic enclave dtd.16.10.02 108) Br., New Delhi 35 M/s Aman Canara Bank, 810446, 12,40,235/ PW33/K31 (D Trading Co. Diplomatic enclave dtd.16.10.02 109) Br., New Delhi 36 M/s Aman Canara Bank, 810447, 6,95,334/ PW33/K32 (D Trading Co. Diplomatic enclave dtd.16.10.02 110) Br., New Delhi 37 M/s Aman Canara Bank, 810448, 14,65,990/ PW33/K33 (D Trading Co. Diplomatic enclave dtd.09.01.02 111) Br., New Delhi 38 M/s Aman Canara Bank, 810451, 1,90,000/ PW33/K34 (D Trading Co. Diplomatic enclave dtd.23.11.02 112) Br., New Delhi 39 M/s Aman Canara Bank, 810449, 9,26,125/ PW33/K35 (D Trading Co. Diplomatic enclave dtd.23.11.02 113) Br., New Delhi 40 Self Cash drown by P.N 810452, 50,000/ PW47/A4 Upadhyay, dtd.12.12.02 (D114) Accountant Total Rs. 3,56,13,405/
131. The cheques would show that huge transactions were made in the above said companies. One self withdrawal was made for Rs.50,000/ on 12.12.2002 by the accused P. N. Upadhyay who was part time accountant of the accused Sanjay Gupta. Self withdrawals were made for Rs.30,000/ by the accused Tarun Khanna @ Sonu who was employee of the accused CC No. 21/12 04.12.2018 155 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 156 Sanjay Gupta.
132. Testimony of PW9 reveals that M/s Alpha Communications (India), proprietor Sharad Kumar Jain, had its account at Vyasya Bank, Yamuna Vihar branch, Delhi. The account was opened on 01.12.2001. It was introduced by Deepak Bansal, Director of M/s Paramount Insulation Pvt. Ltd. It was Tarun Khanna @ Sonu who had impersonated as Deepak Bansal and introduced the account. He was the employee of the accused Sanjay Gupta.
133. Record reveals that from the account of M/s Alpha Communications (India), cheques Ex. PW 8/ J to Ex. PW 8/N (D74) dated 19.06.2002 and Ex. PW 13/A dated 19.06.2002 were issued in the name of self for a total amount of Rs.28.0 lacs. The withdrawal against those cheques was made by the accused P. N. Upadhyay who also had his account in the same bank i.e. Vyasya Bank, Yamuna Vihar branch. PW13 has identified the signatures of accused P. N. Upadhyay on the back of the above cheques as well as his initials on the cheques. He also identified the accused P. N. Upadhyay. He has stated that out of Rs.28.0 lacs, a Pay Order of Rs.17.00 lacs was prepared in favour of Agarwal Associates (Promoters) Ltd. on the request of P. N. Upadhyay vide Ex. PW 8/J and the balance payment was made in cash to P. N. Upadhyay. Vide Payin Slip Ex. PW 8/E, he had deposited the cash in the Saving Bank A/c of P. N. Upadhyay CC No. 21/12 04.12.2018 156 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 157 for making the Pay Order. He has stated that P. N. Upadhyay vide application had requested to make the Pay Order in favour of Agarwal Associates (Promoters) Ltd. and issued the cheque Ex. PW 8/F on the basis of which Pay Order dated 19.09.2002 was prepared. He also proved the statement of deposits/accounts of M/s Alpha Communications (India) Ex. PW 13/C/ Ex. PW 61/A for the period from 19.05.2002 to 21.07.2004. PW11 also proved the statement of account of accused P. N. Upadhyay Ex. PW 11/A. Although the said statements of accounts have not been proved in accordance with the Evidence Act as no certificate u/s 65B of the Evidence Act and Section 2A of the Bankers Book of Evidence Act was placed/proved with the statements but the cheques which have been duly proved show the huge transactions amongst the companies i.e. M/s Paramount Insulation Co, M/s Alpha Communications (India) and others and self. The cheques clearly show that the above accounts were opened and money was transferred from the one company to the other company. In this case, it were not the statements of accounts alone which are produced by the prosecution, it has also produced the cheques through which the money was siphoned off. These cheques are duly proved in accordance with the Evidence Act. The prosecution has also examined the witnesses relating to the above transactions. That being the position, not filing the Certificate CC No. 21/12 04.12.2018 157 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 158 u/s 65B of the Evidence Act with the statement of accounts does not prove fatal to the case of the prosecution.
134. Testimony of PW39 would show that Sanjay Mittal had purchased a shop from Agarwal Associates (Promoters) Ltd. on the ground floor at Plot No.4, Karkardooma Community Centre, Delhi on 20.09.2002 for Rs.17.0 lacs. Record reveals that same pay Order was used for making the payment to Agarwal Associates (Promoters) Ltd. and it was Sanjay Gupta who had purchased the shop impersonating as Sanjay Mittal vide agreement Ex. PW 39/A2 which also bears his photograph. The testimony of PW39 also reveals that on 21.01.2003 vide agreement Ex. PW 34/A, he sold/transferred the shop in favour of PW34 Mohd. Iqbal Ahmed for a valuable consideration which fact has also come in the testimony of PW34. He identified the accused Sanjay Gupta as Sanjay Mittal. PW38 has stated that on 20.01.2003 accused Sanjay Gupta @ Sanjay Mittal and Deepak had come to him and asked him to introduce the account in Central Bank of India, Shahdara branch which he introduced vide account No. 912 on 27.11.2003 Ex. PW 38/A. PW 49 who was Chief Manager, Central Bank of India, Shahdara branch has stated that a credit voucher dated 24.01.2003 for Rs.17.10 lacs was issued by IDBI. Cheque no. 002071 dated 29.01.2003 for Rs.10.0 lacs and 002072 dated 29.01.2003 for Rs.7.0 lacs and cheque no. 002073 dated 29.01.2003 for Rs.10,000/ were CC No. 21/12 04.12.2018 158 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 159 issued by Sanjay Mittal from that account in favour of Deepak Bhartya. The record Ex. PW 49/A3 corroborates this fact.
135. The cheques which were collected during investigation and proved by the witnesses and other documents clearly show that the above accounts were opened and credit facilities were obtained just to siphon off the funds and misappropriate the same by the accused Sanjay Gupta through his employees who created the fictitious/shell companies at his instance, account of which later turned into NPA resulting loss to the bank. The record reveals that the property which was mortgaged as collateral security even did not belong to Satish Chand Jain.
136. Admittedly, none of employees of accused Sanjay Gupta obtained any pecuniary advantage out of the said transactions but the documents clearly reveal their active participation and connivance in the alleged transactions which started from making of false Sale Deed, applying for loan, opening of accounts, execution of loan documents, issuing cheques and withdrawing money from the accounts. In these circumstances, no benefit on this count can be given to the coaccused persons. The handwriting expert report shows that the cheques were signed by the accused Sharad Kumar Jain either as S. C. Jain, proprietor of M/s Paramount Insulation Co. or as S. K. Jain proprietor of M/s Alpha Communications CC No. 21/12 04.12.2018 159 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 160 (India). The self cheques were encashed by P. N. Upadhyay.
137. The detailed analysis shows that the funds were transferred from one company to another company and this process continued till all the funds were siphoned off. The record also shows that the company M/s Alpha Communications (India) was only on papers and no business was carried out by the said company. It was used just to divert the funds which were later misappropriated by Sanjay Gupta (A2). These transactions were made only with an intent to defraud the bank. Facts and circumstances also show that the funds were not utilized by the company for genuine trade transactions. The funds were diverted/siphoned off through the dummy accounts and sham business transactions by the accused Sanjay Gupta (A2) through Sharad Kumar Jain ( A1) with active connivance of Tarun Khanna @ Sonu (A5), P. N. Upadhyay (A6) and Rakesh Verma (A7), the employees of Sanjay Gupta in his company M/s Sharda Metals who were shown as proprietor/director of the shell companies and owner of the property bearing No. 78A Dilshad Garden, Delhi.
G. Sanction to prosecute accused P. R. Pujari u/s 19 of Prevention of Corruption Act, 1988.
138. In the instant case, after the investigation, CBI had requested the competent authority to accord sanction for prosecution CC No. 21/12 04.12.2018 160 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 161 against the accused P. R. Pujari, the then Chief Manager, Indian Bank, Chandni Chowk Branch, Delhi. The sanction was accorded by PW48 Jayanti Lal Jain vide Ex.PW48/A. PW48 has stated that in the year 2004 when he accorded the sanction, he was posted as General Manager (Headquarter) at Chennai. He was the competent authority to accord the sanction. He had perused the statements of witnesses, documents including the departmental inquiry and after having been satisfied, he accorded the sanction on 17.11.2004. He has stated that the accused failed to verify the ownership of the property and credit report in reference to Jain Cooperative Bank. He denied that the sanction was prepared by CBI and he simply signed it without applying his mind and no documents were placed before him when he accorded the sanction.
139. In the instant case, as evident from the record, before sanctioning the loan by the accused P. R. Pujari, the bank had sought legal search report from the panel lawyer and valuation report from the government approved valuer. He had also conducted presanction inspection and given report. The Assistant Manager, G. Sriram had given credit/status report about the borrower Satish Chand Jain and the guarantor Sanjay Jain. He had also conducted stock verification at site and submitted his report. No discrepancy was found in the stock verification report during the CC No. 21/12 04.12.2018 161 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 162 subsequent visits of the other bank officials at site. Detailed analysis was made by G. Sriram in the loan proposal which finds mention about all the details were collected when the loan documents were processed. A report from Jain Co operative Bank Ltd was also sought where M/s Paramount Insulation Co. had claimed to have an account. All the relevant documents of the identity of the proprietor Satish Chand Jain i.e. his voter I card and PAN card were collected. The original documents of the sale deed including Power of Attorney of the property bearing No. 78A, Dilshad Garden, Delhi were also collected which was kept as collateral security. In all the documents, the address of the proprietor Satish Chand Jain was shown as 78A, Dilshad Garden. There was no material with the bank to doubt on the credentials of borrower/guarantor. During that period, there was no system prevalent in the bank to verify the Election I card from the issuing authority or the income tax returns or the audit reports/ balance sheets from the Income Tax department or the Chartered Accountant or sales tax registration certificate from the Authority which were submitted with the loan proposal. The independent assessment of the account was made and thereafter the proposal was processed and sanctioned by the accused P. R. Pujari. There used to be independent audit. It was only after the loan was released, the fraud came to the notice of the bank. A departmental inquiry CC No. 21/12 04.12.2018 162 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 163 was conducted and thereafter the matter was reported to CBI which led to the registration of the case. The testimony of the Investigating Officer is very categorical to the effect that during investigation, no evidence of the connivance of the bank officials with the borrower/ guarantor came nor he found any evidence that the accused P. R. Pujari obtained any pecuniary advantage while sanctioning or releasing the loan to M/s Paramount Insulation Company. Facts and circumstances rather show that what he did, was in due discharge of his duty as such bank officer / public servant and there was no dishonest intention on his part to give pecuniary advantage to M/s Paramount Insulation Co. or to cause wrongful loss to the bank. It is pertinent to mention that it is not only in one case where the fraud had occurred as evident from the statement Ex.PW60/A1/X1. Rather, similar frauds had occurred with the other banks and in all the frauds Satish Chand Jain (S. C. Jain) was shown as proprietor either of M/s Paramount Insulation Company or M/s Aman Trading Company for getting loan from the banks and S. C. Jain was one and the same person and it was Sharad Kumar Jain who had impersonated as S. C. Jain. In all the four cases before different banks, same sale deed dated 27.12.2000 of the property no. 78A, Dilshad Garden was used as collateral security in which S. C. Jain was shown as vendee/ owner of the property and he had signed in all the applications / CC No. 21/12 04.12.2018 163 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 164 documents before the Bank in the name of S. C. Jain. Before committing the fraud with the banks, a forged sale deed pertaining to property no. 78A, Dilshad Garden was prepared and got registered in the office of Subregistrar, Seelampur. The replicas of the forged sale deed were prepared and used as original sale deeds for collateral securities before different banks. Record reveals that in the year 20012002 when the loan was sanctioned, there were no guidelines/ circulars from the bank to verify the identity documents and other documents from the Authorities/ Departments/ CAs. IO has admitted that during investigation, no nexus was found between the bank officials of different banks.
140. In the instant case, the allegations on the basis of which the sanction order Ex.PW48/A was passed were that P. R. Pujari (A3) while functioning as Chief Manager, entered into a criminal conspiracy during the year 2002 with Sharad Kumar Jain @ Satish Chand Jain, proprietor of M/s Paramount Insulation Company, Sanjay Gupta @ Sanjay Jain, Tarun Khanna @ Deepak Bansal, P.N. Upadhyay and Rakesh Verma @ Kuldeep Gupta (all private persons) with the object to cheat Indian Bank, Chandni Chowk Branch, Delhi and to facilitate M/s Paramount Insulation Company by sanctioning OCC limit of Rs. 45.0 lacs on the basis of forged/false sale deed of property at 78A, Dilshad Garden, Delhi purportedly registered in the name of Satish Chand Jain, forged credit CC No. 21/12 04.12.2018 164 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 165 report and bank statement purportedly issued by Jain Co operative Bank Ltd., forged balance sheet, forged voter I card purportedly issued in the name of Satish Chand Jain, forged sales tax record and thus he abused his official position as such public servant causing pecuniary wrongful gain to the company and pecuniary wrongful loss to the bank to the extent of Rs. 46.04 lacs. He failed to ascertain the existence of the firm and did not verify this fact independently though he had visited the property on 22.02.2002. He also failed to ascertain about the ownership of the property offered as collateral security which was later on found to be not belonging to the accused Sharad Kumar Jain @ Satish Chand Jain. While processing the loan application, he contacted co accused Sushil Narain for ascertaining the credit worthiness of Satish Chand Jain, Sanjay Jain and the company and relied upon the report given by him orally on 13.03.2002 whereas Sushil Narain was neither the client of the bank nor was in any way concerned with the bank. He did not verify the statement submitted by M/s Paramount Insulation Company purportedly issued by Jain Cooperative Bank nor obtained the credit report independently. The dispatch register maintained in the branch during the relevant period shows no entry of dispatch of letter dated 06.03.2002 to Jain Co operative Bank and he accepted the credit report purportedly given by Jain Cooperative Bank vide letter dated 09.03.2002 CC No. 21/12 04.12.2018 165 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 166 which was brought by the party. He did not contact the bank on phone and the said statement was found to be forged. He did not verify the balance sheet purportedly issued and signed by Vinod Sharma of V. Sharma and Associates which were found to be forged. He failed to notice the photograph of the person affixed on the Voter I card, PAN Card, sale deed as Satish Chand Jain submitted by the party. He did not consider the appropriate query raised by G. Sriram about the property which Sanjay Jain had shown in the details of the assets and liabilities as his own property and residential address nor asked him to submit relevant tax receipt/ copies of the title deed and he ruled the query by giving the remarks 'copy of P.O shown, property not registered in his name' and he accepted the photocopy of GPA and it was later on found that no person by the name of Sanjay Jain every lived there and the GPA was a forged document. He failed to ascertain the correct credit status of Sharad Kumar Jain @ Satish Chand Jain and Sanjay Jain @ Sanjay Gupta and accepted the credit status report prepared on the basis of the information declared by them in their statements without any independent verification. He did not obtain mutation letter from MCD to the effect that property stands mutated in the name of Satish Chand Jain as suggested by the legal panel lawyer and accepted the Khasra Girdwari purportedly issued by one Patwari which was found forged. He sanctioned the loan on CC No. 21/12 04.12.2018 166 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 167 the basis of forged documents and disbursed the same without ensuring proper end use of the funds.
141. It is to be noted that at the stage when the sanction was accorded, there was prima facie material against the accused to prosecute him in the alleged offence. It was only after appreciating the entire evidence in proper perspective, a reasoned conclusion was arrived at. It is also not in dispute that PW48 was the competent authority to accord sanction u/s 19 of the PC Act. He has stated that after thoroughly going through the documents and applying his mind, he accorded the sanction.
142. The purpose to give sanction for prosecution is to apprise the Court to take cognizance of the offence against the public servant. It is an administrative order not passed under any quasi judicial proceedings. It has no effect on the merit of the case. The sanctioning authority has not to act as a Court. It has to form a satisfaction after applying its mind whether the sanction for prosecution should be granted or not. The sanction order and the testimony of PW48 show that he had applied his mind and accorded the sanction after getting satisfied. In the case of Gurbachan Singh vs. Satpal Singh and Ors. 1990 AIR 2009 it was held that the Court must strictly be satisfied that no innocent person, (innocent in the sense of not being guilty of the offence of which he is charged) is convicted even at the risk of letting of some guilty CC No. 21/12 04.12.2018 167 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 168 persons. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.
143. In the case of CBI vs. Ashok Kumar Aggarwal, 2014 Crl.LJ 930, it was held that the order of sanction should make it evident that the authority had been aware of all or relevant facts/materials and had applied its mind to all the relevant material. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
144. In the sanction order, PW48 has mentioned all the allegations against accused persons/bank officials which show that he was aware of all the relevant facts of the case at the time of according sanction to prosecute him. He has mentioned in the order that he has fully and carefully examined the material placed before him. After careful perusal and application of mind, he found that it was a fit case for according the sanction to prosecute the accused.
145. In State of Maharashtra through CBI vs. Mahesh G. Jain, (2013) 8 SCC 119, it was held by the Supreme Court that while sanctity attached to an order of sanction should never be forgotten but simultaneously the rampant corruption in CC No. 21/12 04.12.2018 168 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 169 society has to be kept in view. The Supreme Court considered various case laws on this issue and crystallized the following principles "14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances has granted sanction of prosecution.
14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it. 14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. 14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction. 4.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity".
146. In the instant case the prosecution has placed the original sanction order before this Court and has also examined the sanctioning authority as a witness. In view of the above discussions as well as the principles reiterated by the CC No. 21/12 04.12.2018 169 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 170 Supreme Court in Mahesh G. Jain's case supra, a hypertechnical view of the sanction order cannot be taken. It should also not be lost sight of that the sanctioning authority is not required to conduct a parallel investigation into the offences at the time of grant of sanction. I am of the view that the sanction vide Ex. PW 48/A to prosecute the accused P.R. Pujari was a valid sanction order.
H. Criminal conspiracy
147. An agreement to commit an offence or an illegal act between two persons or more is the essence of conspiracy. Such an agreement is designated as criminal conspiracy.
148. For appreciating the nuances of Section 120A r.w Section 120B(2) of IPC which makes criminal conspiracy punishable in law. It is necessary to deal with various terms, used in Section 120A IPC.
149. The important words used in Section 120A are "agreement"
between two or more persons, "offence" which is defined in Section 3(38) of the General Clauses Act, 1897 to mean any act or omission made punishable by any law for the time being in force. "Offence" is also defined in Section 2(n) of the Code of Criminal Procedure, to mean any act or omission made punishable by any law for the time being in force. Further the term used in Section 120A IPC is " illegal" which has been defined in Section 43 of IPC, thus :
CC No. 21/12 04.12.2018 170 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 171 "...The word "illegal" is applicable to everything which is an offence or which is prohibited by law or which furnishes ground for a civil action, and a person is said to be "legally bound to do" when it is illegal for him to omit. Further, Section 32 & 33 of IPC defines an "act" means a series of acts and also includes illegal omission..."
150. A combined reading of the above makes clear that to attract a criminal liability for the offence of criminal conspiracy under Section 120A r.w Section 120B(2) of IPC, the following are to be proved:
When two or more persons agree to do, or cause to be done (1) an illegal act (which is an offence or which is prohibited by law, or which furnishes ground for a civil action, OR (2) an act which is not illegal but by illegal means (which is an offence or which is prohibited by law, or which furnishes ground for a civil action)
151. Such agreements are designated as criminal conspiracy and if such an agreement is entered to commit an offence ( any act or omission made punishable by any law for the time being in force). Then that such agreement is also an independent offence.
152. In Kehar Singh v. State (Delhi Administration) AIR 1988 SC 1883 (known as Indira Gandhi murder case) it was held:
Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution often relies on evidence of acts of various parties to infer that they were done in reference to their CC No. 21/12 04.12.2018 171 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 172 common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can undoubtedly be proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together in the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. It is unnecessary to prove that the parties "actually came together and agreed in terms" to pursue the unlawful object; their need never have been an express verbal agreement, it being sufficient that there was a "tacit understanding between the conspirators as to what should be done".
153. In the case of State of Maharashtra & ors v. Somnath Thapa & Ors. (1996) 4 SCC 659, the Supreme Court observed that for a person to conspire with another, he must have knowledge of what the conspirators wanted to achieve and thereafter having the intend to further the illegal act takes recourse to a course of conduct to achieve end or facilitate its accomplishment.
154. In Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra (2008) 10 SCC 394, it was held :
"... Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence CC No. 21/12 04.12.2018 172 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 173 of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must from a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable, even if an offence does not take place pursuant to the illegal agreement. (emphasis supplied)..."
155. In the case of Baliya vs. State of MP (2012) 9 SCC 696, it was held:
15..........The foundation of the offence of criminal conspiracy is an agreement between two or more persons to cooperate for the accomplishment/ performance of an illegal act or an act which is not illegal by itself, through illegal means. Such agreement or meeting of minds create the offence of criminal conspiracy and regardless of proof or otherwise of the main offence to commit which the conspiracy may have been hatched once the unlawful combination of minds is complete, the offence of criminal conspiracy stands committed....
17. The offence of criminal conspiracy has its foundation in an agreement to commit an offence or to achieve a lawful object through unlawful means. Such a conspiracy would rarely be hatched in the open and, therefore, direct evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the court in drawing such an inference must consider whether the basic facts i.e. circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and thereafter, whether from such proved and established circumstances no other conclusion except that the accused had agreed to commit an offence can be drawn. Naturally, in evaluating the proved circumstances for the purposes of drawing any inference adverse to the accused, the benefit CC No. 21/12 04.12.2018 173 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 174 of any doubt that may creep in must go to the accused.
156. In the case of CBI vs. K. Narayana Rao (2012)9 Scale 25), it was held:
24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in the matter of common experience that direct evidence to prove conspiracy is rarely available.
Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.
157. From the proposition of law laid down in the aforesaid judgments, it comes out that in order to prove the conspiracy, prosecution is not required to prove the agreement and to adduce the direct evidence of conspiracy that the parties came together, agreed to pursue the unlawful object. It is not necessary to prove that there was an express verbal agreement CC No. 21/12 04.12.2018 174 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 175 but what is necessary to show is that there was some sort of tacit understanding between the conspirators as to what should be done.
I. ROLE OF THE ACCUSED PERSONS:
Role of Sharad Kumar Jain (A1) and Sanjay Gupta (A2)
158. Facts and circumstances of the case show that accused Sanjay Gupta (A2) was the mastermind of whole of the conspiracy. A2 was running a company in the name of M/s Sharda Metals at 78A Dilshad Garden, Delhi which was engaged into drawing of copper wires. He had taken the premises on rent from PW7 Nehru Jain. Sharad Kumar Jain (A1) was his employee. It was Nehru Jain who had got him employed in the company M/s Sharda Metals.
159. There was a scheme of trade finance which was launched by the Indian Bank vide Circular Ex. PW 35/A dated 11.10.2000 which empowered the Chief Manager, Scale IV to sanction Open Cash Credit (OCC) upto Rs.50.0 lacs which was to be secured against the stock/book debts as primary security and equitable mortgage of immovable property as collateral security. Credentials of the trader were also required to be verified through its audited balance sheets, returns etc. If the party had an account in another bank, credit report from that CC No. 21/12 04.12.2018 175 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 176 bank was also required to be obtained. The collateral security was required to be verified physically by the Manager or his officer personally. The stocks/book debts were also required to be verified periodically by the Branch Manager or his officer.
160. Facts and circumstances show that in January, 2002, Sanjay Gupta (A2) created a fictitious firm in the name of M/s Paramount Insulation Co. at 78A Dilshad Garden, Delhi in conspiracy with his employee Sharad Kumar Jain (A1) to fraudulently obtain credit facilities from the Indian bank, Chandni Chowk Branch, under the abovesaid scheme.
161. Rakesh Verma(A7) and Tarun Khanna @ Sonu @ Deepak Bansal(A5) used to work in the company of Sanjay Gupta (A2) i.e. M/s Sharda Metals. P. N. Upadhyay(A6) was his part time Accountant. Pankaj Garg was the nephew of Sanjay Gupta.
162. Sanjay Gupta ( A2) in connivance with Sharad Kumar Jain (A1) and Rakesh Verma got registered a false Sale Deed in respect of the property bearing No. 78A Dilshad Garden, Delhi in the office of SubRegistrar SeelamPur where Sharad Kumar Jain (A1) impersonated as Satish Chand Jain as vendee and Rakesh Verma impersonated as Kuldeep Gupta, attorney of the owners of the property as vendor. Sanjay Gupta signed the Sale Deed as Inder Pal Singh as witness. Although, in that Sale Deed photograph of Pankaj Garg was CC No. 21/12 04.12.2018 176 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 177 affixed as Satish Chand Jain but the GEQD report and testimonies of the witnesses would show that it was Sharad Kumar Jain who had signed as Satish Chand Jain on the Sale Deed. The Sale Deed was got registered on 30.12.2000.
163. The documents and the testimonies of PW7 and PW21 would show that originally Smt. Gauri Devi was the owner of the property bearing No. 78A Dilshad Garden, Delhi. She sold it to four persons, namely, Mohan Lal, Raj Bahadur, A. Dass and Raj Bahadur on 05.05.1958. The property was divided by the owners and a share of about 1100 sq. yards came with Raj Bahadur, father of Nehru Jain PW7. Raj Bahadur expired in 1975 leaving behind four daughters and two sons including Nehru Jain. According to PW7, they never sold the property to anyone and the ownership always remained with them. The GPA on the basis of which the Sale Deed was executed was shown to have been executed on 09.05.1984 but the testimony of PW7 and the record would show that Raj Bahadur had already expired in 1975.
164. Facts and circumstances of the case show that replica of the Sale Deed of the property bearing No. 78A Dilshad Garden, Delhi was prepared after purchasing the stamp papers from the treasury and erasing the Serial numbers. In the Sale Deed deposited with the bank, photograph of Sharad Kumar Jain was affixed as Satish Jain and photograph of Rakesh Verma was affixed as Kuldeep Gupta. Sanjay Gupta signed as Inder CC No. 21/12 04.12.2018 177 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 178 Pal Singh as witness.
165. Facts and circumstances further show that M/s Paramount Insulation Co. vide application/letter Ex. PW 47/A14 dated 25.03.2002 approached the bank for sanction of OCC limit of Rs.50.0 lacs. The application/letter was signed by Sharad Kumar Jain as Satish Chand Jain which is proved from the GEQD report. Alongwith the application, copy of the voter I card was submitted in the name of Satish Chand Jain. Testimony of PW28 shows that this document was never issued by the Electoral Office and it was a forged document. With the application, audit reports, balance sheets purportedly issued by V. Sharma and Associates, Chartered Accountant, at C55/X3 Dilshad Garden, Delhi were annexed. According to PW16 Vinod Sharma, he never issued the above audit reports. His office was at 1/6697 Shahdara which he had closed in the year 1990. PW5 Gopi Chand has stated that Flat No. C55/X3 belonged to him which he had given on rent to the accused Sanjay Gupta in 1997 where a lady namely Meenu Pathak used to live and there was no firm in the name of V. Sharma & Associates at the above address. It is to be noted that accused Tarun Khanna @ Sonu is the brother of Meenu Pathak.
166. Facts and circumstances show that accused Sharad Kumar Jain (A1) impersonating as Satish Chand Jain submitted certificate of Registration of M/s Paramount Insulation Co.
CC No. 21/12 04.12.2018 178 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 179 for CST and Tax Receipt, list of debtors, assets and liabilities wherein he offered to create the equitable mortgage of property bearing no. 78A Dilshad Garden, Delhi as collateral security. M/s Paramount Insulation Co. also submitted a Statement of account purportedly issued by Jain Cooperative Bank Ltd, Shahdara branch stating that the company has been operating from this bank since 1998. Accused Sanjay Gupta (A2) submitted details of his assets and liabilities vide Ex. PW 47/A/21 impersonating as Sanjay Jain as guarantor. He submitted a Power of Attorney of the property bearing No. 77A Dilshad Garden, Delhi mark PW 23/1 claiming himself to be the owner of the property. PW23 has stated that he is the owner of the property bearing no. 77A, Dilshad Garden, Delhi, Sanjay Jain never lived at 77A Dilshad Garden, Delhi nor he executed the Power of Attorney in favour of Sanjay Jain.
167. Facts and circumstances further show that the loan proposal was processed by the Assistant Manager, Indian Bank G. Sriram. Legal search report and valuation report in respect of property bearing No. 78A Dilshad Garden were sought from the panel lawyer and valuer. M. Kochar & Co. and Ms Uma Aggarwal respectively. They, after verification from the office of SubRegistrar and physical verification, submitted their reports which were acted upon by the bank officials while processing the loan application. In his legal search CC No. 21/12 04.12.2018 179 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 180 report M. Kochar & Co. had recommended for taking mutation in respect of the abovesaid property since the party had claimed that the property has been mutated in the record of the MCD. The bank also sought verification from Jain Cooperative Bank Ltd as to the credit worthiness of the account of M/s Paramount Insulation Co. vide letter dated 06.03.2002 reply of which was received alongwith the report and statement vide letter dated 09.03.2002. As per report, the account of the company was satisfactory and the bank did not extend any loan facility to M/s Paramount Insulation Co. Facts and circumstances show that Jain Cooperative Bank never issued such report nor M/s Paramount Insulation Co. had account with Jain Cooperative Bank Ltd and the statement of account and the report were false and manipulated.
168. In this case, instead of mutation, Khasra Girdawari of the above property in the name of Satish Chand Jain was deposited. Testimonies of PW31 would show that no such Khasra Girdwari was issued by the Nazul Department DDA. There was no patwari in the name of Vijender Singh who had purportedly issued the Khasra Girdawari. Even Khasra Nos appearing on the Khasra Khirdwari and the Sale Deed were different. GEQD report shows that it was accused Sanjay Gupta who had prepared the false Khasra Girdawari and signed as Vijender Singh.
CC No. 21/12 04.12.2018 180 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 181
169. Facts and circumstances show that after the loan was sanctioned vide sanction advice Ex. PW 47/A2 dated 10.04.2002, M/s Paramount Insulation Co. through its proprietor Satish Chand Jain opened a current a/c no. 9451 on 11.04.2002 vide account opening form Ex. PW 19/A bearing the photograph of Sharad Kumar Jain as Satish Chand Jain. The account opening form was signed by Sharad Kumar Jain as Satish Chand Jain and the account was introduced by PW41 Rajesh Gupta of M/s Shubham Sarees. The account was converted into OCC A/c No. 13030 on the same day i.e. 11.04.2002. M/s Paramount Insulation Co. through its proprietor Satish Chand Jain executed the loan documents. Sanjay Jain also executed the agreement of guarantee to the loan agreement. GEQD report shows that it was Sharad Kumar Jain who had signed as Satish Chand Jain and it was Sanjay Gupta who had signed as Sanjay Jain. The original Sale Deed of the property bearing no. 78A Dilshad Garden, Delhi was deposited with the bank which was a false and forged document.
170. Facts and circumstances show that Sanjay Gupta had created a fictitious company in the name of M/s Paramount Insulation Pvt Ltd at 78A Dilshad Garden, Delhi. In that company, he and Deepak Bansal were the directors. The account of that company was introduced by Sanjay Jain of M/s Arihant Industries at the instance of P. N. Upadhyay. P. N. Upadhyay CC No. 21/12 04.12.2018 181 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 182 was also the part time accountant of Sanjay Jain of M/s Arihant Industries. The documents and the testimonies of the witnesses would show that it was Tarun Khanna @ Sonu who had impersonated as Deepak Bansal in that company. The testimony of DW1 reveals that this account remained operational from 08.03.2000 to 20.02.2002.
171. Facts and circumstances further show that two more fictitious companies were created i.e. M/s Alpha Communications (India) and M/s Hindustan Industries in which Sharad Kumar Jain was shown as proprietor. The address of M/s Alpha Communications (India) was shown at 11662, Panchsheel Garden, Delhi. PW4 who is the owner of the property has stated that he never let out this property to M/s Alpha Communications (India). M/s Alpha Communications (India) opened a current account in Vysya Bank, Yamuna Vihar, Delhi. The above account was introduced by Deepak Bansal, director of M/s Paramount Insulation Pvt Ltd. The record and the testimony of PW9 would show that it was none else but the accused Tarun Khanna @ Sonu who impersonating as Deepak Bansal introduced that account.
172. The address of M/s Hindustan Industries was shown as 134, Tahirpur, Delhi. PW3 who is the owner of property 134, Tahir Pur, Delhi has stated that no company by the name of M/s Hindustan Industries existed at the said address. M/s Hindustan Industries opened an account in Vyasya Bank Ltd.
CC No. 21/12 04.12.2018 182 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 183 Yamuna Vihar branch, Delhi. Sanjay Jain of M/s Arihant Industries also introduced the account of M/s Hindustan Industries. He has stated that he had introduced the account on the request of P. N. Upadhyay.
173. Record shows that many cheques were issued from the account of M/s Paramount Insulation Co. in the name of self and M/s Alpha Communications (India) & ors. Self cheques issued from the account of M/s Alpha Communications (India) were encashed by P. N. Upadhyay. The cheques which were issued from the account of M/s Alpha Communications (India) were signed by Sharad Kumar Jain as S. K. Jain and body of the cheques was filled in by Sanjay Gupta. The cheques which were issued from the account of M/s Paramount Insulation Co. were signed by Sharad Kumar Jain as S. C. Jain. GEQD report shows that Sharad Kumar had signed as S.C Jain as well as S. K. Jain.
174. Testimony of PW40 Kapil Marwah, CA would also reveal that Sanjay Gupta had contacted him for loan in favour of M/s Paramount Insulation Co. He had told that the said firm is of his nephew. He got prepared the credit monetary assessment data of M/s Paramount Insulation Co. for which he paid Rs.1.2 lacs to him (PW40).
175. PW41 Rajesh Gupta has stated that Sanjay Gupta @ Sanjay Jain (A2) had come to him to introduce the account.
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176. PW44/ PW17 Mahinder Kumar who was Postman in the area of Dilshad Garden has stated that Sanjay Gupta had told him to bring the dak of M/s Aman Trading Co, M/s Paramount Insulation Co. and M/s Paramount Insulation Pvt Ltd which dak he had brought 23 times. He has stated that he never saw sign board of the above companies at the above premises. He stated that Sanjay Gupta used to receive the dak of M/s Sharda Metals which existed at the above address during the period from 1998 to 2002.
177. Facts and circumstances further show that self cheques of Rs.28.0 lacs were issued from the account of M/s Alpha Communications (India) by Sharad Kumar Jain in which account, amounts were transferred from the account of M/s Paramount Insulation Co. Out of the said amount, a Pay Order of Rs.17.0 lacs in favour of Agarwal Associates (Promoters) was got prepared which was used by the accused Sanjay Gupta to purchase a shop in the name of Sanjay Mittal. Sanjay Gupta impersonatig as Sanjay Mittal also opened an account in Central Bank of India, Shahdara branch which bears the photograph of Sanjay Gupta. Testimony of PW39 shows that it was accused Sanjay Gupta who had purchased the shop in the name of Sanjay Mittal. Testimony of PW34 shows that Sanjay Gupta @ Sanjay Mittal sold the shop to him for a valuable consideration.
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178. The above transactions and record clearly show that the loan proceeds were siphoned off. The testimony of the bank official would show that the account of M/s Paramount Insulation Co. turned into NPA. A departmental inquiry was held, fraud was detected and the matter was reported to the CBI vide complaint Ex.PW57/B (D1).
179. It was contended on behalf of the accused Sharad Kumar Jain ( A1) that A1 has been placed similarly to Pankaj Garg but he was not made as an accused. His photograph has appeared on the Sale Deed registered in the office of the Subregistrar, Seelam Pur, Delhi. Voter Icard in the name of Satish Chand Jain bearing the photograph of Pankaj Garg was also found. PW54 in whose presence specimen signature and handwriting of the accused Sharad Kumar Jain (A1) were allegedly taken did not identify the accused. The report of the handwriting expert is completely unreliable. There is glaring error in the report of the expert who instead compared Sharad Kumar Jain's signatures 'S. K. Jain' with purportedly forged signatures of 'S. C. Jain'. Ld counsel referred the testimonies of the witnesses from the Sub Registrar office to contend that these witnesses have categorically stated that the person whose photograph has appeared in the Sale Deed had appeared before the Subregistrar and given his identity proof when the Sale Deed was registered. This shows that accused Sharad Kumar Jain never appeared before the Subregistrar CC No. 21/12 04.12.2018 185 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 186 office and he was falsely implicated.
180. Perusal of the record would show that an application was moved on behalf of the accused Sanjay Gupta (A2) u/s 319 CrPC for impleading Pankaj Garg and Nehru Jain as accused persons. The Predecessor of this Court vide detailed order dated 23.12.2016 after considering the submissions and the evidence dismissed the application for want of any cogent or compelling evidence connecting Pankaj Garg and Nehru Jain with the fraud perpetuated on the complainant bank. The said order has attained its finality as no appeal or revision is pending against the said order. It was also held that the allegations of improper investigation, if any, cannot be a ground for allowing the application u/s 319 CrPC. In that application, it was alleged that the IO did not deliberately conduct fair and proper investigation into their roles. It was observed that the handwriting of Pankaj Garg was not found on any of the incriminating documents and there is no such evidence on the basis of which Pankaj Garg could be summoned as an accused. The records before the court show that issue related to Pankaj Garg was more of misuse of his photograph than of his active involvement in the conspiracy to defraud the bank. GEQD report also suggests that the signatures of Pankaj Garg were not found on any of the incriminating documents. Admittedly, the photograph of Pankaj Garg was found in the office record of Subregistrar, CC No. 21/12 04.12.2018 186 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 187 Seelam Pur at Serial No. 2966 dated 27.12.2000 but his photograph was not used in the Sale Deed submitted to the bank. Even the Sale Deed which was registered in the office of Subregistrar was a false document as the person who had executed the Sale Deed was neither the owner nor the attorney of the property bearing No. 78A Dilshad Garden, Delhi.
181. It is relevant to mention that after the application u/s 319 CrPC was disposed of, no new incriminating facts came on record which could warrant consideration of the contention of the accused for making Pankaj Garg and Nehru Jain as accused persons. I am of the view that accused persons cannot be allowed to reagitate this issue which has attained its finality.
182. As regards contention that the report of handwriting expert is irrelevant and unreliable, as there are discrepancies, perusal of the report, account opening form and the documents of this case would show that it was Sharad Kumar Jain who had opened the account of M/s Paramount Insulation Co. impersonating as Satish Chand Jain. He had signed as S. C. Jain on the form. He had also executed the documents when the loan was sanctioned. He also issued the cheques favoring M/s Alpha Communications and self signing as S. C. Jain. He also opened the account of M/s Alpha Communications (India) in the name of Sharad Kumar Jain as proprietor in CC No. 21/12 04.12.2018 187 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 188 Vyasya Bank Ltd, Yamuna Vihar branch where he signed as S. K. Jain. He also issued cheques from that account in the name of self which were encashed by the accused P. N. Upadhyay. PW9 in whose presence the above account was opened identified the photograph of the accused Sharad Kumar Jain and stated that the accused had signed the forms and other documents in his presence. He also identified his signatures. No suggestions came in his evidence that accused did not sign the documents in his presence or his signatures were forged by someone else. CFSL/GEQD report also shows that the person who had signed the questioned documents i.e. above documents was none else but the accused Sharad Kumar Jain.
183. PW19 who had issued the cheque book has stated that the cheque book containing the cheques from Srl. No. 810401 to 810500 were issued to M/s Paramount Insulation Co. on 11.04.2002. PW33 proved the cheques which were issued from that account and has stated that the cheques were cleared by the bank. No suggestions were given to PW33 that signatures of Sharad Kumar Jain as S. C. Jain were forged by someone else and were not of the accused Sharad Kumar Jain. That being the position, even if there was no identification of the accused Sharad Kumar by PW54 who had witnessed the taking of specimen signatures of the accused Sharad Kumar Jain (A1) by PW60/IO does not CC No. 21/12 04.12.2018 188 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 189 prove fatal to the prosecution. Further, I did not find any discrepancy in the reports of Expert Ex. PW 47/A43 and Ex. PW 47/A44. It has already been held that specimen signatures taken by the IO during investigation even without the permission of the court could be considered and in this respect, the report of the expert cannot be rejected.
184. As regards the contention that Sharad Kumar Jain was not benefitted at all from the transactions which fact has also been stated by the IO, admittedly, he did not derive any benefit out of the said transactions but he had played an active role in the conspiracy which was hatched by the accused Sanjay Gupta as he agreed to do an illegal act by illegal means. He very well knew that he was not Satish Chand Jain nor he was the owner of the property bearing No. 78A Dilshad Garden, Delhi but he opened the account, applied for loan and issued the cheques at the instance of Sanjay Gupta through which the funds were transferred to the shell companies owned/ controlled by the accused Sanjay Gupta through the accused persons which resulted into defrauding the bank. He was the link to the chain of circumstances, so, it cannot be said that no criminality can be imputed to him for not getting any benefit out of the above transactions.
185. Facts and circumstances rather show that he impersonated himself as Satish Chand Jain claiming to be the resident of CC No. 21/12 04.12.2018 189 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 190 78A Dilshad Garden and owner of the above property. He also opened the account in the name of M/s Alpha Communications (India) giving his address as 11662 Panchsheel Garden, Delhi. He also opened the account in the name of M/s Hindustan Industries giving his address as 134, Tahirpur, Delhi. Both the addresses did not belong to him. He submitted false documents with the bank which he knew or had reasons to believe that the said documents were false. He falsely got executed the Sale Deed in respect of the property bearing No. 78A Dilshad Garden, which was capable of being converted into valuable security. He used that Sale Deed as genuine document which he knew and had reasons to believe that it was the forged document on the basis of which M/s paramount Insulation Co. availed the credit facilities from Indian Bank, Chandni Chowk branch amounting to Rs.45.0 lacs. He submitted the false report in respect of the availability of the stocks of copper wire at the above premises. He issued the cheques in favour of shell companies which were used to siphon off the money by the accused Sanjay Gupta. He never objected to the acts and action of the accused Sanjay Gupta at any time. He even did not make complaint against the accused Sanjay Gupta when he came to know that he was being misused by the accused Sanjay Gupta.
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186. I also do not find merit in his contention that he had given his photograph to Nehru Jain for making passport and visa for going to Canada to meet his sister as no evidence of this sort came on record. The record shows that he used to accompany P. N. Upadhyay to the banks for operating the accounts of the above companies.
187. Ld counsel for A2 has contended that since M/s Sharda Metals was declared insolvent in July, 1995 itself and its account had become NPA and it was not in existence after July, 1995 and the application for insolvency was allowed on 30.03.2001, it could not have been possible that Sanjay Gupta would have retained the possession of the above premises till December, 2002. Fact of the matter is that he had vacated the premises in the year 1995 itself and shifted to Jaipur.
188. It may be true that the account of M/s Sharda Metals had turned into NPA or it had become insolvent in July, 1995 and the application for insolvency was allowed on 30.03.2001 but there is no evidence to show that accused Sanjay Gupta had vacated the premises in the year 1995 or the company was not in existence in the year 20002002. PW22 who had handed over the copy of surrender of possession by the accused Sanjay Gupta has stated that Sanjay Gupta had vacated the premises in December, 2002 and not before. Further, A2 has failed to produce any document contrary to this fact that he had vacated the premises in the year 1995 and it was no more CC No. 21/12 04.12.2018 191 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 192 in his possession.
189. As evident from the record, M/s Sharda Metals came into existence in 1989 at the address 78A Dilshad Garden, Delhi. Testimony of Nehru Jain reveals that the premises bearing No. 78A Dilshad Garden was taken on rent by the accused Sanjay Gupta for his company M/s Sharda Metals vide rent agreement Ex.PW7/B1 (D155). He has stated that the accused had vacated the premises in December, 2002 vide surrender cum possession deed Ex. PW7/C (D156). IO/PW60 has stated that during investigation, the premises bearing No. 78A Dilshad Garden, Delhi was found in the possession of the accused Sanjay Gupta till December, 2002, the day he vacated the premises . The other witnesses have also stated that the accused Sanjay Gupta used to operate his company M/s Sharda Metals at the above address. He vacated the premises in December, 2002 and all the accused/employees used to work with Sanjay Gupta in the year 20012002 in his firm M/s Sharda Metals.
190. It is also relevant to mention that the factum of insolvency was pleaded before the court for the first time by the accused Sanjay Gupta when he appeared as defence witness/his statement was recorded u/s 313 CrPC. Even no such suggestions were given to PW7 Nehru Jain from whom he had taken the premises on rent for running the firm M/s Sharda Metals.
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191. As regards contention that no evidence was collected as to the existence of the company M/s Sharda Metals at the above address for the period from 1989 to 1992, it is not in dispute that M/s Sharda Metals had an account with Central Bank of India, Janpath branch and it had opened that account in 1989 giving the address 78A Dilshad Garden, Delhi. Admittedly, the rent agreement was of the year 1992 but even in the absence of no evidence as to the existence of the firm at the above address from 1989 to 1992, it cannot be inferred that the company M/s Sharda Metals was not in existence at the above address. It was never pleaded by the accused that the address of the company during the period from 1989 to 1992 was not 78A Dilshad Garden, Delhi or some other place. The accused Sanjay Gupta did not dispute the existence and operation of the company from the above address since 1989. Rather when A2 examined himself as DW7, he admitted the fact that he was tenant of Nehru Jain at 78A, Dilshad Garden, Delhi from January 1988 to July 1995, from there he used to run a firm M/s Sharda Metals. Even otherwise, this case relates to the company M/s Paramount Insulation Co and not M/s Sharda Metals.
192. As regards contentions of the accused Sanjay Gupta that masterminds in this case were Nehru Jain and Pankaj Garg and he was falsely implicated by the CBI at their instance, as discussed earlier, the accused Sanjay Gupta (A2) had moved CC No. 21/12 04.12.2018 193 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 194 an application u/s 319 CrPC for impleading them as accused persons which application was dismissed by the predecessor of this court vide detailed order dated 23.12.2016 against which order no appeal or revision is pending. In that order, detailed reasons were given for not impleading them as accused persons. After the disposal of this application, no new incriminating facts came on record to implead them as accused persons. The Court had considered the alleged forged Khasra Girdawari Ex. PW 47/A31, forged Sale Deed Ex. PW 20/2, proceedings/orders/final order/documents in the probate case bearing PC No. 200/99 titled Sukhbir Singh v. State which fact Sanjay Gupta had mentioned when he was examined as DW7 and the copy of the judgment of conviction of Nehru Jain and not taking specimen signatures/handwriting of Nehru Jain or using the forged Sale Deed in PC No. 200/99 on 03.09.2002 by Nehru Jain. It was observed that no patwari by the name of Vijender Singh was posted either in North East district or in DDA ( Land Section) and further GEQD opinion shows that Khasra Girdawari was prepared by the accused Sanjay Gupta @ Sanjay Jain in his own handwriting and he also signed as Vijender Singh. The report Ex. PW 32/A was considered and it was held that the accused failed to point out anything incriminating in the report connecting Nehru Jain to the fraud perpetuated against the complainant bank. The judgment in CC No. 5026/1 against Nehru Jain was CC No. 21/12 04.12.2018 194 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 195 considered and it was held that this document is not relevant to the present controversy. The copy of proceedings in probate case were considered. It was observed that the proceedings sheet do not reflect that Nehru Jain had appeared before the court on 11.07.2002 in the probate case. It was held that this argument is speculative in nature and cannot be considered.
193. Admittedly, specimen handwriting/signatures of Nehru Jain were not taken during the investigation nor the rent agreement Ex. PW 7/B1 (D155, D156) was sent to the laboratory but it does not prove fatal to the case of the prosecution. There is enough direct and circumstantial evidence which prove the complicity of the accused Sanjay Gupta in the commission of the alleged offence.
194. As regards taking of specimen signatures/handwritings of the accused Sanjay Gupta, PW54 has stated that in his presence specimen signatures of the accused Sanjay Gupta were taken. PW 58 and PW59 have also witnessed the taking of specimen signatures of the accused Sanjay Gupta. Although they did not identify accused Sanjay Gupta in the witness box but there is enough direct evidence against the accused Sanjay Gupta to prove his complicity and his signatures on the questioned documents. An agreement in respect of the sale of the property at Karkardooma was executed between him and PW39 Uma Aggarwal where he had impersonated as Sanjay CC No. 21/12 04.12.2018 195 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 196 Mittal and signed the documents. He had sold the property to PW34 impersonating as Sanjay Mittal. PW49 has stated that the account no. 912 in the name of Sanjay Mittal was allowed to be opened on 23.01.2003. He identified the accused Sanjay Gupta as Sanjay Mittal and proved his specimen signatures on the card. PW39 Uma Aggarwal also identified Sanjay Gupta as Sanjay Mittal. PW36 has stated that Sanjay Jain had come to collect the valuation report in respect of the property at Karawal Nagar. She got him introduced to Sushil Narain. On going through the expert report, questioned documents and specimen documents, it can well be inferred and seen that the questioned documents were signed by none else but the accused Sanjay Gupta of which fact the court can take the judicial notice u/s 45 and 73 of the Evidence Act.
195. Facts and circumstances of the present case show that the main conspirator in the instant case was the accused Sanjay Gupta (A2). He introduced Sharad Kumar Jain as Satish Chand Jain and got opened the account in the name of M/s Paramount Insulation Co. showing Satish Chand Jain as its proprietor. He got prepared false voter Icard in the name of Satish Chand Jain bearing the photograph of Sharad Kumar Jain. He got applied for loan for the firm M/s Paramount Insulation Co. with Indian Bank, Chandni Chowk branch where he stood guarantor impersonating as Sanjay Jain and signed the documents as guarantor. He also signed the Sale CC No. 21/12 04.12.2018 196 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 197 Deed in respect of property no. 78A Dilshad Garden, Delhi as witness which was a forged document. He made an agreement with Agarwal Associates (Promoters) Ltd. and purchased a shop at Karkardooma in the name of Sanjay Mittal impersonating himself as Sanjay Mittal and also opened an account in Central Bank of India, Shahdara branch in the name of Sanjay Mittal. He sold the shop to PW34 Mohd. Iqbal in 2003 and misappropriated the sale proceeds. He was the person at whose behest, the shell companies were created by his employees/coaccused persons through which the funds were siphoned off. He was the main beneficiary of whole of the transactions.
196. I am of the view that prosecution has proved the charges against both the accused persons, namely, Sharad Kumar Jain (A1) and Sanjay Gupta (A2).
Role of accused Pravir Ranjan Pujari (A3)
197. Facts and circumstances show that A3 was working as Chief Manager of Indian Bank, Chandni Chowk Branch. There was a scheme of trade finance which was launched by the Indian Bank vide circular Ex.PW35/A dated 11.10.2000 which empowered the Chief Manager, Scale IV to sanction upto Rs. 50.0 lacs in the form of OCC which was to be secured against the stock / book debts as primary security. Additional security in the form of equitable mortgage of immovable property was CC No. 21/12 04.12.2018 197 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 198 required to be taken.
198. Facts and circumstances further show that M/s Paramount Insulation Company under the proprietorship of A1 vide letter Ex.PW47/A14 dated 25.03.2002 had approached the Indian Bank for sanction of OCC limit of Rs. 50 lacs. The loan was to be guaranteed by A2. Alongwith the loan application form M/s Paramount Insulation Company had submitted various documents consisting of audit reports, balance sheets, details of assets liabilities of A1 and A2, copy of voter card and list of debtors etc. The loan was to be primarily secured against the stock/book debts. M/s Paramount Insulation Company also offered to create equitable mortgage in respect of property bearing no. 78A, Dilshad Garden, Delhi. The company had stated that they are maintaining their current account with Jain Cooperative Bank, Shahdara Branch and had further stated that they have not availed any credit facility from that bank.
199. Facts and circumstances show that the Indian Bank, Chandni Chowk Branch while processing the loan proposal of M/s Paramount Insulation Company had called for a legal search report in respect of property No. 78A, Dilshad Garden, Delhi which was to be mortgaged. The bank had also called for a valuation report of the property from the approved valuer. PW37 M.C. Kochar who was on the panel of the bank duly proved the legal opinion dated 02.03.2002 vide Ex.PW37/A CC No. 21/12 04.12.2018 198 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 199 wherein he had stated that he had verified the particulars of photocopy of the sale deed provided to him by the bank with the records of the subregistrar Seelampur with regard to property no. 78A, Dilshad Garden, Delhi. PW39 Mrs Usha Aggarwal was the Architect and on the panel of the bank. She duly proved the valuation report dated 06.03.2002 Ex.PW9/A (D19) in respect of property no. 78A, Dilshad Garden, Delhi wherein she had assessed the value as Rs. 56.02 lacs.
200. Indian Bank also sought verification from Jain Cooperative Bank Ltd as to the credit worthiness of the account of M/s Paramount Insulation Company vide letter dated 06.03.2002 reply of which was received by the Indian Bank vide letter dated 09.03.2002 of Jain Cooperative Bank Ltd. as per which the account of the company was satisfactory and the bank confirmed that they had not extended any credit facility to M/s Paramount Insulation Company.
201. Facts and circumstances show that the loan proposal of M/s Paramount Insulation Company as submitted by A1, guaranteed by A2 was processed by G. Sriram Assistant Manager. PW33 Mahinder Singh was the Assistant Manager in Indian Bank, Chandni Chowk branch in 2002. He duly proved the credit report Ex.PW33/E (D37) in the handwriting of G. Sriram which was countersigned by A3. He also proved the note dated 09.04.2002 Ex.PW33/F (D36) CC No. 21/12 04.12.2018 199 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 200 in the writing of G. Sriram and also the note dated 19.03.2002 Ex.PW33/G (D28) in the writing of G. Sriram.
202. Facts and circumstances of the case further show that vide Ex.PW33/E, G. Sriram had contacted Creative Trading Company on the phone numbers 4057740 and 9868165770 as provided by the parties and got the verification done in respect of the antecedents of M/s Paramount Insulation Company. It has also come in evidence that as per the process note dated 09.04.2002 Ex.PW33/F, G. Sriram Assistant Manager had visited the premises of M/s Paramount Insulation Company at 78A, Dilshad Garden, Delhi.
203. The note of A3 Ex.PW33/B (D29) shows that on 22.03.2002 A3 had visited the godown and residence of A1 at 78A, Dilshad Garden, Delhi and mentioned the details of his visit therein.
204. It has come in evidence that the loan of M/s Paramount Insulation Company was sanctioned by P.R. Pujari A3 on 10.04.2002 vide Ex.PW47/A2, which subsequently became NPA on 31.03.2003 with total outstanding of Rs. 47,70,368/. The bank filed a complaint to CBI and subsequently the competent authority accorded the sanction for prosecution against A3 vide sanction Ex.PW48/A.
205. Facts and circumstances show that A2 in connivance with A 1 got the company namely M/s Paramount Insulation Company floated only on paper and showed its address as CC No. 21/12 04.12.2018 200 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 201 78A, Dilshad Garden, Delhi where A2 was already having its office of M/s Sharda Metals. A2 in connivance with A1 got registered a false sale deed in respect of the above said property which he submitted to Indian Bank as genuine. It has also been proved that M/s Paramount Insulation Company never had any account with Jain Cooperative Bank and the letter of Jain Cooperative Bank as well as the purported account statement of M/s Paramount Insulation Company with Jain Cooperative bank were forged. It has also been proved that the audited balance sheet purportedly bearing the signatures of Vinod Sharma CA of V. Sharma and Associates were never signed by him and his signatures were forged. It has also been proved that the Power of Attorney in respect of property no. 77A, Dilshad Garden, Delhi submitted by A2 alongwith statement of Assets and Liabilities was forged. It has also been proved that khasra girdawari in respect of property no. 78A, Dilshad Garden, Delhi purportedly signed by Virender Singh, Patwari was forged and the same was found to be in the handwriting of A2 and the signatures of Virender Singh were also forged by A2 as proved by GEQD.
206. Ld PP has contended that the panel lawyer of Indian Bank while giving his opinion in respect of property no. 78A, Dilshad Garden, Delhi had advised the bank to obtain mutation in respect of the property. However, instead of obtaining mutation as advised, the branch accepted the khasra CC No. 21/12 04.12.2018 201 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 202 girdawari of the property bearing no. 78A, Dilshad Garden, Delhi. Ld. PP has also contended that A3 did not take any residential proof of the property in the name of A2 and only collected details of assets and liabilities of A2 wherein the residential address of A2 is mentioned as 78A, Dilshad Garden, Delhi and the same was proved to be false. Ld. PP has further argued that A3 while seeing the process note as prepared by G. Sriram, vide Ex.PW33/F dated 09.04.2002 ignored the query and wrote "Copy of the P.O shown. Property not registered in his name" and sanctioned the loan on 10.04.2002.
207. I have bestowed my thoughtful consideration to the entire evidence on record and also considered the rival arguments of ld. PP and the ld. Defence counsel in respect of the role of A3.
208. As regards taking khasra girdawari in lieu of the mutation letter in respect of mortgaged property bearing no. 78A, Dilshad Garden, the same seems to be unintentional considering the fact that A3 as per the laid down procedure had obtained legal search report and valuation report in respect of property bearing no. 78A, Dilshad Garden, Delhi. It is pertinent to state that the legal opinion clearly stated that the property in question is free from encumbrances and could be mortgaged. The recommendation of the empaneled lawyer to obtain mutation certificate was in the nature of advice to CC No. 21/12 04.12.2018 202 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 203 further ensure that the property is actually transferred in the name of A1 in the municipal records. It is an admitted fact that khasra girdawari being the extracts of the revenue record is equally important and carries the same importance as that of mutation certificate. I do not find any misconduct on the part of A3 on account of not insisting for mutation certificate when the khasra girdawari was submitted by A1. I find force in the contention of ld. Defence counsel that this document was accepted by A3 as it did give the property transfer details and was not affecting the security in any manner. As far as the contention of the ld. PP in respect of verification of the address of A2 who was the guarantor of the loan is concerned, there is no evidence which has come on record that A3 being the sanctioning authority for grant of loan was required to insist on any other address proof of A2 when he had submitted a power of attorney in respect of 77A, Dilshad Garden, Delhi.
209. As regards calling for the credit worthiness report from the bank where the party had account earlier, the system prevalent at that time was that the letter is written by the Manager to the other bank which is given to the dispatch section and from dispatch section, letter goes to the other bank. The other bank then sends the report in confidential and the same procedure is followed as to the dispatch of the report from the other bank.
CC No. 21/12 04.12.2018 203 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 204
210. Admittedly, in the instant case, there is no record as to the dispatch of letter from Indian Bank to Jain Cooperative Bank Ltd. and dispatch of report from Jain Cooperative Bank Ltd to Indian Bank but the letter calling for the credit worthiness report from Jain Cooperative Bank by Indian Bank and the report from Jain Cooperative Bank addressed to the Indian Bank are available on record. It was not for the Chief Manager / A3 to go and personally post the letter in the post office and dak for this purpose is dealt by the subordinate staff. He had signed the letter and sent it to the section through the subordinate staff. If the fraudsters managed to intervene in between, Chief Manager cannot do much about the same. The credit report received from the bank was placed before him. None of the prosecution witnesses or the documents proved anything showing any connivance with the fraudsters. It cannot be said that the Indian Bank did not call for the report from Jain Cooperative Bank Ltd. The letter dated 06.03.2002 Ex.PW33/I (D21) shows that credit worthiness report of the party was called from Jain co operative Bank, Shahdara Branch. The report Ex.PW1/A (D
22) dated 09.03.2002 also shows that it was sent by Jain Co operative Bank to Indian Bank. Further, the investigating officer did not find any nexus between the officials of both the banks during investigation. The reasonable inference which can be drawn from the above facts is that it was the CC No. 21/12 04.12.2018 204 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 205 party which managed the report and it cannot be said that the letter was shown to have been prepared and it was not sent to Jain Cooperative Bank to complete the formalities.
211. As regards processing of loan, perusal of record and the note of G. Sriram, Assistant Manager would show that he had prepared the credit reports of the borrower and guarantor from the information available in the record and on verification and personal satisfaction which he had done from the parties names of which were mentioned in his note. He had also inspected the stocks and verified the property by physical inspection. He had also talked to the parties and given the details of stock. Since Sushil Narain had visited the bank number of times and had also come with Rajesh Gupta and Sanjay Gupta had also come with Sushil Narain, so, P. R. Pujari enquired from Sushil Narain about the credentials/ credit worthiness of both borrower and guarantor which fact he had mentioned in his note. Same thing was also mentioned by G. Sriram when he sought the information from the persons named in the list submitted by the borrower. Surprisingly, G. Sriram was not doubted and impleaded in this case. He was not even made witness in this case though, he was the person who had processed the loan. Even otherwise receiving oral information was within the accepted norms as confirmed by PW33.
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212. PW14 N.K. Sunderam who was posted as Senior Manager in Indian Bank in 2001 has stated that A3 is an honest and efficient officer and that he had referred A4 to A3 for a loan.
213. PW32 S. K. Soni Vigilance Officer in Indian Bank had conducted the inquiry and given his report Ex.PW32/A. He has stated that as per his investigation, he could not find any connivance of A3 with the other accused persons. He has stated that as per the bank procedure information regarding credential of the borrower can be taken orally. He confirmed a note Ex.PW32/DA (D29) prepared by A3 on 13.03.2002 which had visiting card of A4. He has stated that there is no panel in the bank to verify the financial capability of the borrower. He has admitted that the above said note dated13.03.2002 is not the sole criteria for grant of loan and other inquires are also made.
214. PW19 Laxmi Chand Sharma who was the Assistant Manager, Indian Bank, Chandni Chowk Branch at the relevant time has stated that account no. 9451 of M/s Paramount Insulation Company was opened by A3. However, no irregularity was found in the account opening of M/s Paramount Insulation Company.
215. In the instant case, there is no material or evidence to indicate that the bank official acted dishonestly nor there is any material to show or suggest that P. R. Pujari derived any CC No. 21/12 04.12.2018 206 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 207 pecuniary benefit out of the alleged transactions which fact is also admitted by the investigating officer PW60. Nothing can be inferred from the facts and circumstances that he favoured M/s Paramount Insulation Company to give pecuniary benefit to it making him liable for the offence u/s 13(1)(d) of the Prevention of Corruption Act, 1988. There may be some procedural lapses on his part but these lapses at the best can be said to be irregularities and not illegalities warranting any criminal action against him.
216. In the case of Abdulla Mohammed Pagarkar vs. State (1980) 3SCC110, it was held that the onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts. The irregularities no doubt furnish a circumstance giving rise to a strong suspicion in regard to the bonafides of the appellants in the matter of the execution of the work but suspicion, however strong, cannot be a substitute for proof. It is certainly not permissible to place the burden of proof of innocence on the person accused of a criminal charge. But those findings merely make out that the appellants proceeded to execute the work in flagrant disregard of the relevant rules of the G.F.R and even of ordinary norms of procedural behaviour of government officials and contractors in the matter of execution of works undertaken by the government. Such disregard however has not been shown to us to amount to any of the offences of CC No. 21/12 04.12.2018 207 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 208 which the appellants have been convicted. The said findings no doubt make the suspicion to which we have above adverted still stronger but that is where the matter rests and it cannot be said that any of the ingredients of the charge have been made out.
217. In the case titled as A. Sivaprakash vs. State of Kerala AIR 2016 SC 2287, it was held:
18. It was not even the case set up by the prosecution that appellant had taken that money from some person and had obtained any pecuniary advantage thereby. It was the obligation of the prosecution to satisfy the aforesaid mandatory ingredients which could implicate the appellant under the provisions of Section 13(1)(d)
(ii). The attempt of the prosecution was to bring the case within the fold of clause (ii) alleging that he misused his official position in issuing the certificate utterly fails as it is not even alleged in the chargesheet and not even iota of evidence is led as to what kind of pecuniary advantage was obtained by the appellant in issuing the said letter.
19. In C. Chenga Reddy & Ors. vs. State of A.P., (1996) 10 SCC 1993: the Supreme Court held that even when codal violations were established and it was also proved that there were irregularities committed by allotting/awarding the work in violation of circulars, that by itself was not sufficient to prove that a criminal case was made out The Supreme Court went on to hold:
"22. On a careful consideration of the material on the record, we are of the opinion that though the prosecution has established that the appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental CC No. 21/12 04.12.2018 208 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 209 lapse yet, none of the circumstances relied upon by the prosecution are of any conclusive nature and all the circumstances put together do not lead to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the guilt of the appellants and wholly incompatible with their innocence. In Abdulla Mohd. Pagarkar vs. State (Union Territor of Goa, Daman and Diu), (1980) 3 SCC 110: (AIR 1980 SC 499), under somewhat similar circumstances, this Court opined that mere disregard of relevant provisions of the Financial code as well as ordinary norms of procedural behaviour of Government officials and contractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the officials and contractors concerned, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused. The established circumstances in this case also do not establish criminality of the appellants beyond the realm of suspicion and, in our opinion, the approach of the trial Court and the High Court to the requirements of proof in relation to a criminal charge was not proper........"
20. We, therefore, are of the opinion that the prosecution has miserably failed to prove the charge beyond reasonable doubt and the Courts below have not looked into the matter in a proper perspective. We, thus, allow this appeal and set aside the conviction of the appellant. The appellant is already on bail. His bail bonds shall stand discharged."
218. In the case titled as C. Chenga Reddy vs. State of A.P 1996 (10) SCC 193, it was held:
21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstance must be conclusive in nature.
Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence.
CC No. 21/12 04.12.2018 209 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 210 Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence.
22. On a careful consideration of the material on the record, we are of the opinion that though the prosecution has established that the appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental lapse yet, none of the circumstances relied upon by the prosecution are of any conclusive nature and all the circumstances put together do not lead to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the guilt of the appellants and wholly incompatible with their innocence. In Abdulla Mohd. Pagarkar v. State (Union Territory of Goa, Daman and Diu) under somewhat similar circumstances this Court opined that mere disregard of relevant provisions of the Financial Code as well as ordinary norms of procedural behaviour of government officials and contractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the officials and contractors concerned, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused. The established circumstances in this case also do not establish criminality of the appellants beyond the realm of suspicion and in our opinion, the approach of the trial court and the High Court to the requirements of proof in relation to a criminal charge was not proper. That because of the actions of the appellants, in breach of codal provisions instructions and procedural safeguards, the State may have suffered financially, particularly by allotment of work on nomination basis without inviting tenders but CC No. 21/12 04.12.2018 210 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 211 those acts of omission and commission by themselves do not establish the commission of criminal offences alleged against them.
37. .....................The maximum that can be said against the appellants is that they committed some indiscretion in the matter of allotment of jungle clearance work on nomination basis and also violated codal provisions in the matter of preparation of estimate, drawing up of the agreements and making payments. These acts of omission and commission do give rise to a strong suspicion that the appellants so acted with a view to misappropriate government funds but suspicion, howsoever strong, cannot take the place of proof. The prosecution has in our opinion failed to establish the case against the appellants beyond a reasonable doubt. The conviction and sentence imposed upon the appellants, under the circumstances, cannot be sustained.
52.............................There have been some irregularities committed in the matter of allotment of work to the appellant or breach of codal provisions, circulars and departmental instructions, for preparation of estimates etc and those irregularities give rise to a strong suspicion in regard to the bona fides of the officials of the department and their link with the appellant, but that suspicion cannot be a substitute of proof. The court below appear to have drawn inferences by placing the burden of proving innocence on the appellant which is an impermissible course. In our opinion none of the circumstances relied upon by the prosecution against the appellant can be said to have been proved satisfactorily and all those circumstances which are not of any clinching nature, even if held to be proved do not complete the chain of evidence so complete as to lead to an irresistible conclusion consistent only with the hypothesis of the guilt of the appellant and wholly inconsistent with his innocence. The prosecution has not established the case against the appellant beyond a reasonable doubt. This appeal, CC No. 21/12 04.12.2018 211 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 212 therefore, succeeds and is allowed. The conviction and sentence of the appellant is hereby set aside.
219. In the case of Chittaranjan Shetty vs. State 2015 15 SCC 569, it was held:
22. On a perusal of the abovementioned judgments, it can be concluded that in order to prove the offence under Section 13(1)(d)(ii) of the Act, it must be established that a public servant has abused his position in order to obtain for himself or for any other person any valuable thing or pecuniary advantage and that in this context the "abuse" of position must involve a dishonest intention.
220. In the case of Surender Kaur vs. State of Haryana 2014 (15) SCC 109), it was held:
16. ..............The standard of proof required in a criminal trial is not of mere preponderance of probabilities but of proof beyond doubt. Applying the above standard, the other appellants are entitled to benefit of doubt. We also find that there is no evidence of taking of pecuniary advantage by Dr. Ravinder Kaur which is necessary for charge under Section 13(1)(d).
Presumption under Section 20 has been wrongly invoked as the same does not apply in respect of the said clause. Thus, her conviction and sentence under the Prevention of Corruption Act cannot be sustained.
221. After analysing the entire evidence on record and on considering the rival contentions of the ld. Counsels, I am of the view that the prosecution has failed to prove its case against A3.
CC No. 21/12 04.12.2018 212 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 213 Role of accused Sushil Narain (A4)
222. Facts and circumstances show that accused Sushil Narain used to run educational coaching centre at Laxmi Nagar which fact has also come in the evidence of PW15 Vipin Kalra. He has stated that he used to deal in car loans and charge commission. During the year 20012002 he had visited Chandni Chowk for distributing his visiting card to attract the needy parties. There he met Rajesh Gupta proprietor of Subham Saree and gave him his visiting card. After sometime, Rajesh Gupta contacted him on his mobile and asked him if he could arrange loan for him. He responded that for this purpose they would have to meet Sushil Narain. He alongwith Rajesh Gupta went to the office of Sushil Narain who told Rajesh Gupta that he would try his best to get the loan sanctioned. He has stated that he did not receive any commission on this account but has stated that he knew Sushil Narain for 67 years. He has stated that he never had any commercial transaction with the accused Sushil Narain in relation to the loan. PW6 had conducted valuation alongwith V.P. Aneja of the property of Sushil Narain for bank loan. He has stated that during that period Sushil Narain had asked him to get some contacts of the parties who were interested in loan. He got contacted Sushil Narain to Sanjay Gupta. Thereafter, he did not meet him. PW14 who was posted as Senior Manager Indian Bank has stated that one Raj Kumar CC No. 21/12 04.12.2018 213 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 214 (Manager Finance) SC & ST corporation had come with the accused Sushil Narain and told him that one of the friends of Sushil Narain required loan for a cloth shop. He asked them to approach the accused P.R.Pujari Chief Manager Indian Bank, Chandni Chowk. He telephoned to P.R. Pujari to consider their loan proposal on merit. He stated that he did not know Sushil Narain and only knew Raj Kumar and he cannot say if any loan was sanctioned to the party or not. He has stated that he referred Sushil Narain since the shop of the person seeking the loan was within the jurisdiction of P.R. Pujari. He admitted that he did not know Sushil Narain from before. PW36 has stated that she was the panel advocate of Central Bank of India. She had given legal opinion in respect of the property at Karawal Nagar belonging to Sanjay Jain. He was interested to get loan from the bank. Since she knew Sushil Narain, Director of M/s Delhi Career Academy for whom she had conducted legal search for his property at Laxmi Nagar and he had told that he could arrange loan for any interested person, she suggested the name of Sushil Narain to Sanjay Jain. She has stated that she did not know Sushil Narain personally. PW41 Rajesh Gupta deposed on the line of PW15 and stated that he had met the accused Sushil Narain through Vipin Kalra. Sushil Narain had taken him to the Chandni Chowk Branch of Indian Bank and introduced him to P.R. Pujari. He showed his papers to P.R. Pujari and a CC No. 21/12 04.12.2018 214 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 215 limit of Rs. 15 lacs was sanctioned to him. He stated that he did not pay any commission to anyone for sanction of loan. Nothing incriminating came in his evidence against the accused Sushil Narain. He has admitted that the loan was sanctioned on the basis of documents produced by him and he has repaid the loan. He, however, admitted that Sanjay Jain had requested him to introduce his account and he after verifying from Sushil Narain gave the introduction of Sanjay Jain for Indian Bank, Chandni Chowk. He has stated that Sushil Narain never pressurized him to give introduction. Testimony of PW60 would show that Sushil Narain was neither the employee nor the agent of Indian Bank but had met A2 and A3.
223. In the instant case during the house search of the accused Sanjay Gupta at Jaipur, a pocket diary was recovered containing the contacts of Sushil Narain and details of the account but in this case the said diary was not proved in accordance with the evidence Act. It is not the case that the entries in the said diary were in the hand of Sanjay Gupta or Sushil Narain or he had received any commission out of the said transactions. It is well settled law that the pocket diary in the absence of any authentication from any expert is inadmissible in evidence and cannot be considered as proof. Further in view of the case laws V.D. Jhangan supra, CBI vs. V.C. Shukla supra and S.K. Jain vs. Union of India supra, I CC No. 21/12 04.12.2018 215 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 216 am of the opinion that entries in books of accounts are not by themselves sufficient to charge any person with liability. In this case there is no independent evidence of transactions to which the entries relate.
224. Ld. PP has contended that A2 with the help of accused Sushil Narain (A4) came in contact with accused P.R. Pujari (A3). He has further argued that accused Sushil Narain (A4), through PW36, came in contact with A2 who in conspiracy with A1 and other accused persons fraudulently obtained credit facilities from the bank. Ld. PP stated that accused P. R. Pujari (A3) had put a note on 13.03.2002 wherein he had attached the visiting card of A4, recording satisfactory report about the borrower. Per contra, Ld. Defence counsel for A4 vehemently argued that the accused has been working in the field of education and is not on any panel of the Bank. He has further argued that there is no procedure in the banking rules to grant or sanction loan on the basis of oral credit worthiness report of the outsider/stranger. Moreover, the report of A3 dated 13.03.2002 does not bear the signature of A4 and as such he is not liable for the contents of this document. He has further argued that it was PW40, the chartered account, who had referred the accused Sanjay Gupta to A3. Ld. Defence counsel has further argued that accused Sushil Narain did not know A3 personally and had contacted him through some person.
CC No. 21/12 04.12.2018 216 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 217 I am in agreement with the contention of Ld. Defence counsel that merely attaching the visiting card on the top of the report would not make him criminally liable. It was PW40 who had referred the accused Sanjay Gupta to P.R. Pujari. He did not know P.R. Pujari personally. No commission was asked or charged by him. There is no material to establish that he forged any document with the intention to cheat and defraud the bank. He was not the financial consultant to give the credit worthiness of the party.
225. In this case P. R. Pujari had claimed to have obtained the report about the borrower Satish Chand Jain and guarantor Sanjay Jain vide note Ex.PW32/DA (D29) from A4 and taken his visiting card wherein he had mentioned that he had checked up with Sushil Narain and he knows both of them for the past eight years or so. In that note, he had also mentioned that he had checked up in the market and got a good report about the parties and their estimated net worth was of Rs. 1.0 1.5 crores. The accused Sushil Narain denied having given this information to the accused P. R. Pujari and has stated that no such inquiry was made from him. For the sake of arguments even if it is assumed that he had given the said information but it was not the sole basis on which the loan was sanctioned. In this case P. R. Pujari had obtained number of documents i.e. legal search report, valuation report other documents, original sale deed of the property and had CC No. 21/12 04.12.2018 217 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 218 conducted the personal verification of the property and the stocks lying therein and thereafter sanctioned the loan. Further, nothing has come on record that he received any consideration on account of the above loan or he was party to the conspiracy with the accused persons. There is also no evidence to the effect that he had encashed any cheque issued by Rajesh Gupta.
226. I am of the view that necessary ingredients of the offence of criminal conspiracy are not proved against the accused and he deserves the benefit.
Role of accused Tarun Khanna @ Sonu @ Deepak Bansal (A5)
227. Facts and circumstances of the case show that accused Tarun Khanna @ Sonu knew the accused Sanjay Gupta for a long time. He used to live with his sister PW51 Meenu Pathak whom the accused Sanjay Gupta used to financially help after the death of her husband. She had been living in flat C 50/X3, Dilshad Garden which Sanjay Gupta had taken on rent from PW 5. He used to work for Sanjay Gupta in his company M/s Sharda Metals. He has admitted that he used to work on the dictates of Sanjay Gupta. Testimony of PW10 shows that the account of M/s Paramount Insulation Pvt Ltd was opened by Deepak Bansal and Sanjay Gupta vide account opening form Ex. PW 10/A. He identified the signature of Deepak Bansal and Sanjay Gupta on the account CC No. 21/12 04.12.2018 218 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 219 opening form and stated that they had signed in his presence and the account was introduced by Sanjay Jain, proprietor of M/s Arihant Industries. Alongwith the form they had submitted documents Ex. PW 10/B to Ex. PW 10/D. Perusal of the account opening form would show that it bears the photograph of Tarun Khanna @ Sonu as Deepak Bansal. No suggestions were put to this witness that he did not verify their signatures on the account opening form. PW9 who proved the account opening form of M/s Alpha Communications (India) Ex. PW 9/A has stated that the account was introduced by Deepak Bansal, director of M/s Paramount Insulation Pvt Ltd and his signatures were verified by the Assistant Manager. He has stated that when the account was opened, photograph of the proprietor and other documents were taken and attached with the account opening form.
228. It is not the case of the prosecution that accused Tarun Khanna @ Sonu used to be known by the name of Deepak Bansal. Being in the employment of Sanjay gupta, he very well knew that Sharad Kumar Jain was also the employee of Sanjay Gupta who had opened the account of M/s Alpha Communications (India) as its proprietor. The bank officials also identified his photograph on the account opening form. He did not deny his signatures on the above forms as no suggestions in this respect came from his side. Admittedly in CC No. 21/12 04.12.2018 219 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 220 the instant case, both PW9 and PW10 have not identified the accused Tarun Khanna to be the same person as Deepak Bansal but the photograph affixed on the account opening form of M/s Paramount Insulation Pvt Ltd clearly shows that it was of Tarun Khanna @ Sonu who impersonated as Deepak Bansal. That being the position, the witnesses not identifying the accused Tarun Khanna in the court as Deepak Bansal does not prove fatal to the case of the prosecution.
229. Although PW55 in whose presence the specimen signatures of accused Tarun Khanna were taken is silent on the identity of the accused and PW56 did not identify the accused due to lapse of time but the same does not prove fatal for the prosecution. In this case, the signatures appearing on the account opening form of M/s Paramount Insulation Pvt Ltd and on back side of the self cheques issued by Sharad Kumar Jain matched with the specimen signatures which were taken during the investigation which leads to an irrefutable inference that it was the same person Tarun Khanna @ Sonu @ Deepak Bansal who had signed on the account opening form of M/s Paramount Insulation Pvt Ltd and on the back of the cheques as Tarun Khanna or Deepak Bansal which were issued in favour of Self by the accused Sharad Kumar Jain. It was he (accused Tarun Khanna) who had encashed the cheques and givesthe money to the accused Sanjay Gupta.
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230. I am not in agreement with the contention of Ld defence counsel that no charge of impersonation is proved against him. The evidence available on record clearly shows that while opening the account of M/s Paramount Insulation Pvt Ltd and introducing the account of M/s Hindustan Industries, he had signed as Deepak Bansal by impersonating himself as Deepak Bansal. GEQD report corroborates this fact, judicial notice of which can be taken by the court in view of the findings in the precedent paras. I do not agree with the contention of Ld. defence counsel that the expert had given his report in a mechanical manner without verifying the contents. Admittedly, CBI did not send the specimen signatures of the introducer appearing on the account opening form of M/s Alpha Communications (India) but it assumes no significance when there is direct and circumstantial evidence to substantiate the fact that it was Tarun Khanna who by impersonating as Deepak Bansal had signed as introducer on the account opening form. I am of the view that he was party to the criminal conspiracy with the other coaccused in the transactions.
231. Facts and circumstances of the present case also show that A 5 was in the employment of A2 as stated by PW51, his own sister and even PW7 has also recognized A5. It can safely be inferred that A5 was very well aware about the entire conspiracy hatched by A2 under which A2 floated the CC No. 21/12 04.12.2018 221 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 222 fictitious firm in the name of M/s Paramount Insulation Co in the name of A1 wherein Sharad Kumar Jain impersonated as Satish Chand Jain and fraudulently and dishonestly obtained loan from the bank on the basis of the forged documents. He withdrew the self cheques Ex.PW12/B (D193) and Ex.PW12/C (D193) which were issued from the account of M/s Alpha Communications (India) bearing the signatures of Sharad Kumar Jain (S.K. Jain) Proprietor.
232. As regards the contention that the account of M/s Paramount Insulation Pvt. Ltd was opened on 08.03.2000 and it was closed on 20.02.2002 before the account of M/s Paramount Insulation Co. was opened i.e. much prior to date of the credit facilities to the company and that the account of M/s Alpha Communications was introduced on 01.12.2001 much prior to the date of alleged conspiracy, I find that the conspiracy had started way back in 2000 when the Sale Deed was got registered in the office of Subregistrar. He joined the hands of Sanjay Gupta later and his role became apparent when account of the company which he had introduced, was used to siphon of the funds. In the account of M/s Paramount Insulation Pvt. Ltd, he had impersonated as Deepak Bansal. He had signed the form as director alongwith his employer Sanjay Gupta. He had introduced the account of M/s Alpha Communications (India) as director of M/s Paramount Insulation Pvt. Ltd which was a shell company used by the CC No. 21/12 04.12.2018 222 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 223 accused Sanjay Gupta to siphon of the loan amount sanctioned in favour of M/s Paramount Insulation Co. by the Indian Bank resulting into wrongful loss to the bank and wrongful gain to his employer accused Sanjay Gupta. He very well knew that he was not Deepak Bansal but he still opened the account of M/s Paramount Insulation Pvt. Ltd and introduced the account of M/s Alpha Communications (India) as Deepak Bansal. So it cannot be said that he was not party to the criminal conspiracy in siphoning of the funds.
233. As regards the certification u/s 65B of the Evidence act, it has been discussed in detail in the preceding paras. In the instant case, I find number of evidence i.e. cheques etc besides statement of account which clearly inculpate accused Tarun Khanna in the alleged conspiracy. Admittedly, his sister had been living on the mercy of Sanjay Gupta and they had no means of livelihood but on this very count, it cannot be said that he is innocent or victim of circumstances or he be exonerated from his liability. Even though, he did not obtain any pecuniary gain or benefit due to the illegal activities but chain of circumstances prove his complicity in the criminal conspiracy hatched by Sanjay Gupta and others pursuant to which the loan amount was siphoned off through the shell companies owned and controlled by the accused Sanjay Gupta.
CC No. 21/12 04.12.2018 223 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 224
234. As regards the contention that no preliminary enquiry was conducted by the CBI before registration of the case which is mandatory as per the CBI manuals, it is well settled law that when a complaint prima facie discloses commission of a cognizable offence, no preliminary enquiry is required to be conducted and the investigating agency is bound to register the cognizable offence and investigate the offence. It has also been settled in the case Lalita Kumari v. State of U.P, WP (Crl.) No. 68 of 2008 decided on 12.11.2013 that preliminary enquiry is to be conducted in exceptional matters when doubt occurs whether any cognizable offence is made out or not or in matrimonial cases or where the dispute appears to be of civil nature but has been given a colour of criminal nature. Even that preliminary enquiry is required to be conducted within seven days. There is no provision in the law which mandates for the preliminary enquiry in cognizable offences case. In this case, the complaint which was given by the bank to CBI disclosed commission of cognizable offences, so, it was not incumbent for the CBI to first conduct the preliminary enquiry and then register the case. For the above said reasons, I do not find any force in the contention of Ld. Defence counsel that preliminary enquiry is mandatory before registration of the FIR.
235. I am of the view that the prosecution has proved the necessary ingredients of the offence of criminal conspiracy, CC No. 21/12 04.12.2018 224 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 225 impersonation/cheating and forgery against the accused Tarun Khanna @ Sonu. However the ingredients of the offence punishable u/s 467 IPC are not proved.
Role of accused P. N. Upadhyay (A6)
236. Facts and circumstances of the case show that accused P. N. Upadhyay was the employee of Sanjay Gupta. He used to work with him as a part time accountant. Testimony of PW18 Ghanshyam Tiwari shows that accused P. N. Upadhyay used to work for A2.
237. Testimony of PW8 shows that P. N. Upadhyay had an account with ING Vyasya Bank, Yamuna Vihar branch. He proved the account opening form of a/c no. 535010060013 Ex. PW 8/B (D68) which was opened on 17.09.2002. He has stated that P. N. Upadhyay had another account with the bank vide a/c no. 535010034660. He identified his signature on the account opening form and other documents. PW10 has proved the account opening form of M/s Paramount Insulation Pvt. Ltd Ex. PW 10/A and stated that the account was opened by Deepak Bansal and Sanjay Gupta. He has stated that the account was introduced by Sanjay Jain, proprietor of M/s Arihant Industries. PW11 proved the account opening form of M/s Hindustan Industries Ex. PW 11/A and has stated that the account was opened on 18.10.2002 by its proprietor Sharad Kumar Jain. Testimony CC No. 21/12 04.12.2018 225 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 226 of PW45 shows that he had introduced the account of M/s Paramount Insulation Pvt Ltd and M/s Hindustan Industries on the asking of P. N. Upadhyay who used to work with him as part time accountant since 1998. He has stated that P. N. Upadhyay had introduced him to Sharad Kumar Jain and told him that he knows him. He however denied that he had business relations with Sharad Kumar Jain or accused P. N. Upadhyay never asked him to introduce the accounts.
238. The testimonies of the witnesses PW10 and PW45 would show that P. N. Upadhyay got the account of M/s Paramount Insulation Pvt. Ltd and M/s Hindustan Industries Ltd introduced from PW45 Sanjay Jain. It assumes significance because in the account opening form of M/s Paramount Insulation Pvt Ltd, the address of the company has been given as 78A Dilshad Garden, Delhi and in the account opening form of M/s Hindustan Industries, the address of the company was given as 134 Tahirpur village which premises did not belong to the proprietor of the above company. The account opening form of M/s Paramount Insulation Pvt Ltd bears the photograph of Tarun Khanna as Deepak Bansal. In that form, he had signed as Deepak Bansal.
239. Facts and circumstances show that accused P. N. Upadhyay knew about the criminal conspiracy between Sanjay Gupta (A2) and Sharad Kumar Jain (A1) to illegally avail the loan from the bank and siphon off the same through various CC No. 21/12 04.12.2018 226 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 227 accounts fraudulently. P. N. Upadhyay also knew that Tarun Khanna @ Sonu who impersonated as Deepak Bansal while opening the account of M/s Paramount Insulation Pvt Ltd and introducing the account of M/s Hindustan Industries was the employee of Sanjay Gupta in his company M/s Sharda Metals. He also knew that Sharad Kumar Jain was the employee of Sanjay Gupta in his company M/s Sharda Metals. He used to go with Sharad Kumar Jain to the banks for operation of the accounts of the above companies and maintain their accounts, meaning thereby, he knew that Tarun Khanna @ Sonu was not Deepak Bansal and in the account of M/s Paramount Insulation Co., Sharad Kumar Jain had impersonated as Satish Chand Jain. He never brought this fact to either notice of the banks where the above companies had accounts nor told Sanjay Jain of M/s Arihant Industries who introduced the account of M/s Paramount Insulation Pvt Ltd and M/s Hindustan Industries. He played cleverly and made the account of above companies introduced from his another employer Sanjay Jain PW45. It is not the case that Tarun Khanna @ Sonu and Sharad Kumar Jain were also used to be known by the name of Deepak Bansal and Satish Chand Jain respectively.
240. It is relevant to note that Sharad Kumar Jain had issued the cheques from the account of M/s Paramount Insulation Co. signing as S. C. Jain @ Satish Chand Jain and the account of CC No. 21/12 04.12.2018 227 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 228 M/s Alpha Communications (India) signing as S. K. Jain. Some of the cheques from those accounts were issued in the name of self. He encashed the cheques issued in the name of self which were issued from the account of M/s Alpha Communications (India). He deposited the amount of Rs.17.05 lacs in his account and got issued a draft in the name of Agarwal Associates (Promoters) Ltd. as evident from the testimony of PW11 who issued the Pay Order Ex. PW 8/H on 19.09.2002 on the request of P. N. Upadhyay. The evidence and the record show that the said draft was used by the accused Sanjay Gupta to purchase a shop from Agarwal Associates (Promoters) Ltd. Promoters Ltd in the name of Sanjay Mittal who later sold it to PW 34 Mohd. Iqbal in January, 2003. All these facts and circumstances show that he was instrumental in siphoning off the funds which were released from the loan account of M/s Paramount Insulation Co. through the shell companies owned/controlled by the accused Sanjay Gupta. GEQD report shows that he had encashed the cheques which fact the accused did not dispute during evidence. Although PW52 who had witnessed taking of specimen signatures/handwritings of P N Upadhyay is silent on the identity of the accused but testimony of the IO/PW60 shows that he had taken the specimen signatures of P. N. Upadhyay and he had given his signatures voluntarily. The accused never stated that he did not give any specimen CC No. 21/12 04.12.2018 228 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 229 signatures/handwritings. Rather he alleged that his specimen signatures were taken forcibly. It has already been held that even if the signatures have been taken forcibly, the accused cannot derive any benefit out of it and these specimen signatures can be used for comparing the questioned signatures. Some of the signatures which have been appearing in the documents which are proved by the witnesses also match with the questioned signatures. Even otherwise, in the present case, there is direct and circumstantial evidence to prove his complicity.
241. I am in agreement with the counsel for the accused that the accused neither prepared the alleged cheques in question nor altered them. They were issued by Sharad Kumar Jain and as such, charge u/s 467 IPC cannot be sustained, however, I am not in agreement with the contention of Ld. Counsel that he by no stretch of imagination could have known whether M/s Alpha Communications (India) is a nonexistent firm nor could he have known whether Sharad Kumar Jain was signing the cheques as real person or a fictitious person. He very well knew that Sharad Kumar Jain was the employee of Sanjay Gupta. Sharad Kumar Jain used to accompany him to the banks. He knew that Sharad Kumar Jain used to sign the cheques as S C Jain or S K Jain. Admittedly, there is no evidence to show that he misused or misappropriated any money for his own use or he derived any pecuniary advantage CC No. 21/12 04.12.2018 229 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 230 out of the said transactions but facts and circumstances show that he was one of the main link to the criminal conspiracy which was hatched by the accused Sanjay Gupta to siphon off the loan amount sanctioned in favour of M/s Paramount Insulation Co.
242. I am also not inclined to agree with the contention of Ld Defence counsel that accused was merely the employee of Sanjay Gupta (A2). Merely because the accused P. N. Upadhyay was an employee of Sanjay Gupta (A2) does not absolve him of the offence of criminal conspiracy, liability of which he has invited upon himself by actively participating in various criminal acts as part of the criminal conspiracy hatched by A2 alongwith other accused persons. I am also not inclined to agree with the defence of the accused that he had no knowledge about the activities of the accused persons and that he was a victim of circumstances. He was very well aware about various criminal acts on the part of the accused persons and was actively involved in the same. Taking any contrary view will be misplaced and will result in travercity of justice.
243. As regards contention that the statement of account is not supported with affidavit u/s 65B of the Evidence Act, in this case, it is not the statement of account only which has been produced by the prosecution. The prosecution has also produced the cheques through which the money was siphoned CC No. 21/12 04.12.2018 230 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 231 off and these cheques were duly proved. So non submitting the certificate with the statement of account does not prove fatal to the case of the prosecution.
244. I am of the view that prosecution has proved the necessary ingredients of the offence of criminal conspiracy to cheat the bank by use of forged documents as genuine and by impersonation against the accused P. N. Upadhyay.
Role of accused Rakesh Verma (A7)
245. Facts and circumstances show that the accused Rakesh Verma used to work in the company of Sanjay Gupta namely Sharda Metals at 78A, Dilshad Garden, Delhi with other coaccused persons namely Tarun Khanna @ Sonu, Sharad Kumar Jain, P. N. Upadhyay etc. A sale deed was got registered in the office of the subregistrar Seelampur, Delhi where accused Rakesh Verma impersonated as Kuldeep Gupta claiming to be the attorney of Mohan Lal and others, the owners of the property bearing no. 78A, Dilshad Garden, Delhi. He signed and put his thumb impression on the sale deed as Kuldeep Gupta. He also affixed his photograph on the sale deed which was got registered. He also appeared in the office of sub registrar at the time of registration impersonating as Kuldeep Gupta.
246. The replica of the sale deed was prepared by Sanjay Gupta and Sharad Kumar Jain after purchasing the stamp papers CC No. 21/12 04.12.2018 231 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 232 from the treasury. On the replica Ex.PW20/2 (D47), he also signed and put his thumb impression and affixed his photograph impersonating as Kuldeep Gupta attorney of Mohan Lal and others in respect of the above property. He also signed on the agreement to sell Ex.PW47/A28 (D49) as Kuldeep Gupta. He very well knew that he was not the attorney but he still signed as Kuldeep Gupta on the above documents which were capable of converting into valuable security. These documents were used at the time of availing of loan as collateral security against which loan facility of Rs. 45 lacs was availed by Sanjay Gupta through Sharad Kumar Jain and others. He did not dispute his signature and thumb impressions on the sale deed.
247. He has taken the defence that he was called by the accused Sanjay Gupta and told that M/s Sharda Metals was going to be taken over very soon and he would get the government job and on that pretext / allurement, he signed on the blank papers and stamp papers and gave his photographs which were misused by the accused Sanjay Gupta who got these documents prepared. Admittedly in this case, he did not derive any benefit out of the said transactions but there is no denial to this fact that he was one of the important link in whole of the conspiracy as the sale deed bearing his signature and thumb impression was used as collateral security for availing the loan facilities which loan was later on CC No. 21/12 04.12.2018 232 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 233 misappropriated by Sanjay Gupta and others through the said companies owned/controlled by the accused Sanjay Gupta. GEQD report also corroborates this fact. The documentary and oral evidence clearly prove his complicity.
248. Admittedly he was illiterate and PW55 in whose presence finger print and thumb impression of the accused were taken did not identify him but there is enough direct circumstantial evidence to prove his complicity. There was no suggestion from the side of the accused that he was known by the name of Kuldeep Gupta or the photograph on the documents was not of his or the signatures on the documents were not of him. Further, as held earlier, the GEQD report has corroborative value. In the instant case, there is enough material which substantiate the allegations against the accused. Even though he did not receive any pecuniary advantage, but his role in the criminal conspiracy is far fetched and is proved beyond reasonable doubt. He impersonated himself as Kuldeep Gupta and got prepared a false sale deed which was capable of converting into valuable security which was used as collateral security in securing the loan from Indian Bank, Chandni Chowk Branch.
249. I am of the view that prosecution has proved the necessary ingredient of the offence of criminal conspiracy, impersonation, cheating and forgery/making forged sale deed which was capable of converting into valuable security CC No. 21/12 04.12.2018 233 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 234 against the accused Rakesh Verma (A7).
CONCLUSION Conclusion in respect of A1 Sharad Kumar Jain and A2 Sanjay Gupta
250. In the light of the facts and circumstances of the case, it is proved beyond doubt that :
i. A1 was party to the criminal conspiracy with A2 and others which was hatched to defraud the bank. ii. A1 dishonestly and fraudulently impersonated as Satish Chand Jain and dishonestly induced Indian Bank, Chandni Chowk branch, Delhi and obtained credit facilities in the name of M/s Paramount Insulation Co. to the extent of Rs.45.0 lacs and thereby cheated and caused wrongful loss to Indian Bank, Chandni Chowk Branch and caused wrongful gain to Sanjay Gupta (A2).
iii. A1 dishonestly and fraudulently created forged document in terms of sale deed dated 27.12.2000 in respect of property bearing no. 78A, Dilshad Garden, Delhi which was capable of being converted into valuable security and used the same as genuine document with Indian Bank, Chandni Chowk Branch to avail the credit facility from there. iv. A1 dishonestly and fraudulently forged the statement of account, credit report of M/s Paramount Insulation Company purportedly issued from Jain Cooperative Bank, Shahdara CC No. 21/12 04.12.2018 234 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 235 Branch and submitted the same to Indian Bank, Chandni Chowk Branch as genuine documents thereby used the forged documents as genuine.
v. A1 dishonestly and fraudulently made a forged certificate of registration of CST and forged text receipt of M/s Paramount Insulation Company and used these forged documents as genuine by submitting them to Indian Bank, Chandni Chowk Branch.
vi. A1 dishonestly and fraudulently made a forged audit report of M/s Paramount Insulation Co. carrying the forged signature of Vinod Sharma CA and used forged documents by submitting them to Indian Bank Chandni Chowk Branch as genuine.
vii. A1 dishonestly and fraudulently opened an account in the name of M/s Alpha Communication, a proprietorship firm which was only existing on paper to siphon off the loan proceeds of Indian Bank, Chandni Chowk Branch availed in the name of M/s Paramount Insulation Co. and was instrumental in siphoning of almost the entire loan proceeds by A2.
Conclusion proving A2 Sanjay Gupta to be mastermind
251. From the above said evidence, it is proved that A2 was the mastermind behind the entire conspiracy and the main CC No. 21/12 04.12.2018 235 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 236 beneficiary of the loan proceeds which were illegally diverted by A1 from the loan account of M/s Paramount Insulation Co. This conclusion is based on the following irrefutable pieces of evidence.
i. A1, A5, A6 & A7 were in the employment of A2. ii. A2 was the brain behind in getting loan in the name of A1 in the name and style of M/s Paramount Insulation Company.
iii. A2 was the proprietor of M/s Sharda Metals which was operating from 78A, Dilshad Garden, Delhi and having certain stocks.
iv. A2 forged the signatures of Inder Pal Singh on the sale deed dated 27.12.2000 in respect of property bearing No. 78A Dilshad Garden, Delhi which was capable of being converted into valuable security which was used as genuine document with Indian Bank, Chandni Chowk branch to avail credit facility from there.
v. A2 used to be always present at 78A, Dilshad Garden, Delhi and show the stocks of M/s Sharda Metals as the stocks of M/s Paramount Insulation Co. to various bank officials. vi. A1 had opened the account in the name of M/s Alpha Communications which was used by A1 to siphon off the loan proceeds availed from Indian Bank, Chandni Chowk Branch in the name of M/s Paramount Insulation. However, the ultimate beneficiary of the same was A2.
CC No. 21/12 04.12.2018 236 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 237 vii. Various cheques were encashed by A6 from the account of M/s Alpha Communication, which money was used to purchase a pay order for Rs. 17,05,000/ in favour of Agarwal Associates (Promoters) Ltd. which amount was subsequently used by A2 to purchase a commercial space at Karkardooma Complex.
252. It is also proved beyond doubt that:
i. A2 dishonestly and fraudulently impersonated as Sanjay Jain to stand guarantee for a loan sanctioned to M/s Paramount Insulation Co. in the name of A1 who was his employee and who (A1) impersonated as Satish Chand Jain and thereby cheated and caused wrongful loss to Indian Bank Chndani Chowk Branch.
ii. A2 dishonestly, fraudulently created forged document in terms of Power of Attorney in favour of himself in respect of property no. 77A, Dilshad Garden and used the same as genuine document with Indian Bank Chandni Chowk Branch to guarantee the credit facility of M/s Paramount Insulation Co.
iii. A2 dishonestly, fraudulently forged Khasra Girdawari Mark PW31/A (D53) in respect of property No. 78A, Dilshad Garden in his own handwriting and he signed as Vijender Singh, thereby forging a document and submitting the same to Indian Bank, through A1, his employee, as genuine.
CC No. 21/12 04.12.2018 237 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 238 iv. A2, through A1 his employee, dishonestly and fraudulently got an account opened in the name of M/s Alpha Communication, a proprietorship firm which was only existing on paper to siphon off the loan proceeds of Indian Bank, Chandni Chowk Branch availed in the name of M/s Paramount Insulation Co. and siphoned off almost the entire loan proceeds.
v. A2 fraudulently and dishonestly, by using the siphoned loan proceeds used the account of A6, his employee, to purchase a Pay Order for Rs. 17 lacs which amount was used by A2 in purchasing a shop on the ground floor at plot no. 4, Karkardooma Community Centre, Delhi in the name of Sanjay Mittal, who was in fact A2. Subsequently the said shop was sold by A2 to Mohd. Iqbal Ahmad. vi. A2 impersonated as Sanjay Mittal and opened an account no. 912 at Central Bank of India, Shahadra Branch, Delhi in the name of Sanjay Mittal bearing the photograph of A2.
vii. A2 fraudulently and dishonestly used the above said account to usurp Rs. 17,10,000/, i.e., the sale proceeds of the above said shop.
Conclusion in respect of A3 Pravir Ranjan Pujari
253. As per the case of the prosecution, accused P.R. Pujari (A3) Chief Manager, Indian Bank, Chandni Chowk Branch by use CC No. 21/12 04.12.2018 238 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 239 of illegal means abusing his official position fraudulently processed and prepared presanction inspection reports about M/s Paramount Insulation Co., a nonexistent company, to which a loan of Rs. 45.0 lacs was granted without conducting the inspection, by relying upon false credit status reports about Satish Chand Jain @ Sharad Kumar Jain and Sanjay Jain @ Sanjay Gupta without conducting any verification upon which a loan of Rs.45.0 lacs was granted to M/s Paramount Insulation Co., a nonexistent firm. The accused disbursed /sanctioned credit facilities to M/s Paramount Insulation Co. to the extent of Rs.50.0 lacs on the basis of forged Sale Deed of the property being No. 78A Dilshad Garden Delhi and he accepted the false letter purportedly issued by Jain Cooperative Bank, Delhi and also accepted false credit status report about Sanjay Gupta, Sharad Kumar Jain and M/s Paramount Insulation Co.
254. Facts and circumstances of the case show that A3 being a public servant and the Chief Manager of the Bank had sanctioned the loan. He followed all the laid down procedures in sanction of the loan to M/s Paramount Insulation Company and took all the precautions which a prudent person would take in similar situation. Undoubtedly, some minor lapses / oversights have come on record on the part of A3 but by any stretch of imagination, the same could not be termed as intentional acts or acts in furtherance or as part of criminal CC No. 21/12 04.12.2018 239 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 240 conspiracy by the other accused persons and the same at the most could be termed as acts of negligence or oversight and definitely the same cannot fasten any criminal liability on A
3. Merely because the loan given to M/s Paramount Insulation Company became NPA and the bank suffered a loss, the same cannot be attributed to any misconduct or any criminal conspiracy on the part of A3. There is no evidence to show that due to sanction of the above OCC, A3 received any financial benefit from any person. I am of the view that the prosecution has failed to prove its case beyond doubt as against A3.
Conclusion in respect of A4 Sushil Narain
255. The accused has been charged with the offence of criminal conspiracy alongwith other accused persons on account of being a part of the criminal conspiracy to dishonestly and fraudulently obtain loan from the bank on the basis of forged and manipulated documents by impersonation and cheating and siphoning of the loan proceeds through various accounts of non existing entities. After appreciating the entire evidence on record, I am of the view that though evidence has come that A4 was the facilitator in arranging loans for various persons but no definite evidence has come which proves that A4 was directly responsible in arranging the loan for A1 or that he had any knowledge of the conspiracy hatched by other CC No. 21/12 04.12.2018 240 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 241 accused persons or that he was even remotely connected in creating or using any forged documents. Merely because A4 was known to some bank officials in Indian Bank or that he was facilitating the grant of loan by banks is not sufficient to fasten any criminal liability on him. There is no definite evidence that A4 was part of the criminal conspiracy alongwith the other accused persons in dishonestly and fraudulently obtaining loan from the bank on the basis of forged and manipulated documents, forging the documents, using the forged documents as genuine, impersonation and siphoning of the loan proceeds through sham current accounts, fraudulently opened for this purpose. He deserves the benefit of doubt.
Conclusion in respect of A5 Tarun Khanna
256. Tarun Khanna was in the employment of Sanjay Gupta (A2) who was the mastermind of the entire conspiracy. Tarun Khanna was very well aware that A2 had got opened an account in the name of a fictitious firm i.e. M/s Paramount Insulation Company by Sharad Kumar Jain his employee who impersonated as Satish Chand Jain and submitted various forged and manipulated documents with the bank and obtained credit facilities which were later on siphoned of through use of various sham accounts one of which i.e. Alpha Communications was introduced by Tarun Khanna as Deepak CC No. 21/12 04.12.2018 241 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 242 Bansal.
257. He encashed the cheques issued by Sharad Kumar Jain from the account of Alpha Communications impersonating as Deepak Bansal. He also opened the account of M/s Paramount Insulation Pvt. Ltd. impersonating as Deepak Bansal as director and introduced the account of Alpha Communication impersonating as Deepak Bansal of M/s Paramount Insulation Pvt. Ltd.
258. It is conclusively proved that A5 impersonated as Deepak Bansal and fraudulently opened an account in the name of M/s Paramount Insulation Pvt. Ltd with Vysya Bank Yamuna Vihar Branch alongwith A2. It has also been conclusively proved that he introduced the account of M/s Alpha Communications at ING Vysya Bank, Yamuna Vihar Branch which was opened by A1 to facilitate the siphoning of the loan proceeds of Indian Bank which fact A5 was well aware. It has also been proved that he had signed in the name of Deepak Bansal on the back side of various cheques which were issued in favour of self by A1 to siphon of the loan proceeds of Indian Bank.
Conclusion in respect of A6 P. N. Upadhyay
259. After appreciating the entire evidence on record and considering the Facts and circumstances of the case, it is proved beyond doubt that :
CC No. 21/12 04.12.2018 242 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 243 i. A6 was well aware that Tarun Khanna @ Sonu A7 had impersonated as Deepak Bansal while opening the account of M/s Paramount Insulation Pvt. Ltd and inspite knowing the said fact, he asked PW45 Sanjay, in whose company he was working as part time accountant, to introduce the account at Vyasya Bank, Yamuna Vihar Branch of M/s Paramount Insulation Pvt. Ltd. ii. A6 was very well aware that M/s Hindustan Industries a proprietorship company with A1 as the proprietor was a fictitious company and he requested PW45 to introduce the account of the said company.
iii. A6 was very well aware that Sharad Kumar Jain had impersonated as Satish Chand Jain and availed the loan from Indian Bank in the name of M/s Paramount Insulation Company which fact he never informed to the bank.
iv. A6 was an active participant in the criminal conspiracy to siphon of the loan proceeds availed by M/s Paramount Insulation Company from Indian Bank by withdrawing the money through cheques from M/s Paramount Insulation Company and M/s Alpha Communications (India) as proved by GEQD.
v. A6 purchased the draft of Rs. 17.0 lacs from his account in favour of Agarwal Associates (Promoters) Ltd. which draft was used by A2 in purchasing a shop on the CC No. 21/12 04.12.2018 243 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 244 ground floor at plot no. 4, Karkadooma Community Centre, Delhi in the false name of Sanjay Mittal and thus actively assisted A2 in siphoning of the loan proceeds.
260. Though there is no evidence to show that he misused or misappropriated any money for his own use or derived any pecuniary advantage out of the said transactions but he was an active participant in the criminal conspiracy. However, there is no direct evidence in regard to his making of a forged document or using the forged document as genuine.
Conclusion in respect of A7 Rakesh Verma
261. After appreciating the entire evidence, it is conclusively proved that accused Rakesh Verma impersonated as Kuldeep Gupta on the sale deed of property bearing no. 78A, Dilshad Garden, Delhi and he signed and put his thumb impression on the sale deed as Kuldeep Gupta which was a valuable security and the forged sale deed was used as a genuine document in Indian Bank to avail credit facilities in the name of M/s Paramount Insulation Company. GEQD report also corroborates this fact. It is immaterial whether he derived any direct benefit or not but he was definitely an important link in the entire conspiracy.
CC No. 21/12 04.12.2018 244 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 245 ORDER
262. Upon consideration of all the facts & circumstances of the case enumerated hereinabove, this Court is of the considered opinion that the prosecution has proved its case to the hilt against the accused persons Sharad Kumar Jain (A1), Sanjay Gupta (A2), Tarun Khanna @ Sonu (A5), P. N. Upadhyay (A6) and Rakesh Verma (A7).
i. Accused Sharad Kumar Jain (A1) is accordingly held guilty for his having committed the offence punishable u/s 120B r/w 419/420/467/468/471 IPC and substantive offences punishable u/s 419, 420, 467, 468 and 471 IPC and is convicted thereunder.
ii. Accused Sanjay Gupta (A2) is held guilty for his having committed the offence punishable u/s 120B r/w 419/420/467/468/471 IPC and substantive offences punishable u/s 419, 420 and 467 IPC and is convicted thereunder.
iii. Accused Tarun Khanna @ Sonu (A5) is held guilty for his having committed the offence punishable u/s 120B r/w 419/420 IPC and substantive offence punishable u/s 419 IPC and is convicted thereunder. He is acquitted of the offence punishable u/s 467 IPC.
CC No. 21/12 04.12.2018 245 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 246 iv. Accused P. N. Upadhyay (A6) is held guilty for his having committed the offence punishable u/s 120B r/w 420 IPC and is convicted thereunder. He is acquitted of the offence punishable u/s 467 IPC.
v. Accused Rakesh Verma (A7) is held guilty for his having committed the offence punishable u/s 120B r/w 419/420/467/471 IPC and substantive offences punishable u/s 419 and 467 IPC and is convicted thereunder.
263. This Court is also of the considered opinion that the charges against the accused Pravir Ranjan Pujari (A3) for his having committed the offence punishable u/s 120B r/w 419/420/467/468/471 IPC and u/s 13(2) r/w section 13(1)(d) of the PC Act, 1988 and substantive offences punishable u/s 13(2) r/w 13(1)(d) of P. C. Act and u/s 420 IPC are not proved beyond reasonable doubt.
The charges against the accused Sushil Narain (A4) for his having committed the offences punishable u/s 120B r/w 419/420/467/468/471 IPC and u/s 13(2) r/w section 13(1)(d) of the PC Act, 1988 are not proved beyond reasonable doubt.
264. I therefore acquit the accused Pravir Ranjan Pujari (A3) of the offences punishable u/s 120B r/w 419/420/467/468/471 IPC and u/s 13(2) r/w section 13(1)(d) of the PC Act, 1988 and substantive offences punishable CC No. 21/12 04.12.2018 246 of 247 RC No. 06(E)/2003/EOWI/CBI/ND CBI v. Sharad Kumar Jain & Ors 247 u/s 420 IPC and u/s 13(2) r/w 13(1)(d) of P. C and 420 IPC.
265. I also acquit accused Sushil Narain (A4) of the offences punishable u/s 120B r/w 419/420/467/468/471 IPC and u/s 13(2) r/w section 13(1)(d) of the PC Act, 1988.
266. Their bail bonds be cancelled. Their sureties be discharged.
They are, however, directed to furnish bail bond in the sum of Rs.50,000/ each with one surety each in the like amount u/s 437A Cr.P.C.
267. Let accused Sharad Kumar Jain (A1), Sanjay Gupta (A2), Tarun Khanna @ Sonu (A5), P. N. Upadhyay (A6) and Rakesh Verma (A7) be heard on the point of sentence on the date as fixed by the Court.
Announced in the Open Court.
04.12.2018.
(Sanjiv Jain)
Special Judge (PC Act)
(CBI3), South, Saket Court
New Delhi
SANJIV Digitally signed
by SANJIV JAIN
JAIN Date: 2018.12.05
17:19:56 +0530
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RC No. 06(E)/2003/EOWI/CBI/ND
CBI v. Sharad Kumar Jain & Ors