Delhi District Court
Cbi vs 1. A. Govind Raju, on 3 June, 2014
: 1 :
CBI case No. 25/11
IN THE COURT OF SHRI ALOK AGARWAL
SPECIAL JUDGE, (PC ACT) (CBI),
DISTRICT COURTS(SW), DWARKA, NEW DELHI
CBI Case No. : 25/11
RC No.1(A)/2000/ACUIV/SPE/CBI
In the matter of :
CBI versus 1. A. Govind Raju,
S/o Late T.K. Anantnarayana,
R/o 270, GH1417, Paschim Vihar,
New Delhi.
Present Address :
Flat no. 25, 47/41,
Punjabi Bagh West,
New Delhi110036.
Permanent Address :
005 Building No.2,
Shanti Park, 9th Block,
Jaya Nagar, Bangalore560067.
............. Accused person
Date of Institution : 26.07.2003
Date on which Judgment Pronounced : 28.05.2014
Decision : Convicted u/s 13(1)(c) & 13(1)(d) PC Act.
JUDGMENT
1. Canara Bank, a public sector bank, head quartered at Bangalore, has a branch at Subroto Park, New Delhi. This is a CBI vs. A. Govind Raju 1 of 72 pages : 2 : CBI case No. 25/11 prestigious branch catering interalia to a number of NRIs and Defence officers. The accused A. Govind Raju, who has had a five years stint with the Indian Army as a Commissioned Officer, was posted as Senior Manager Incharge of the said branch from 16.6.1995 to 29.5.1999. As such, he was a public servant within the meaning of the term under section 2(c) of the Prevention of Corruption Act, 1988.
2. Nonresident Indians, who make deposits in foreign currency are naturally, granted a number of facilities by the banks, including higher rates of interest against their fixed deposits. Canara Bank provides them facilities of NonResident (Ordinary) Accounts called NRO accounts, NonResident (External) Accounts, which are known as NRE accounts and a number of fixed deposits accounts including -
(a) NonResident(External) Fixed Deposit/Kamdhenu Deposit (KDR),
(b) NonResident NonRepatriable Accounts (NRNR),
(c) Foreign Currency NonResident Account(FCNR).
3. As per the bank officials who deposed in this case, in case of NRNR KDR Accounts, the principal amount cannot be repatriated while the interest can be. In NRE KDR accounts, CBI vs. A. Govind Raju 2 of 72 pages : 3 : CBI case No. 25/11 the principal amount and the interest both can be repatriated at the asking of the depositor.
4. As against the above secured deposits, the depositors can obtain loans to the extent of 75 per cent of the amount of deposit alongwith accrued interest as on the date of disbursement of the loan. These are called VSL i.e Value Secured Loans, since they are sanctioned against pledge of the borrower's secured deposit, fully discharged in favour of the bank.
5. At the Subroto Park Branch of the Canara Bank, various NRIs Accounts were opened during the tenure of the accused, some of them by NRIs, who were known to him and had faith in him since they had maintained their accounts in the Kapurthala Branch also, where the accused was previously posted. However, after he left the charge of the branch, certain serious irregularities in handling of NRI accounts were noticed. An internal enquiry was conducted and on 10.5.2000, Shri K. M. Shet, the then General Manager of Canara Bank sent a complaint to the Director, CBI, alleging fraud on the part of the accused in respect of his handling of some NRI accounts in issuing more than one receipts in CBI vs. A. Govind Raju 3 of 72 pages : 4 : CBI case No. 25/11 repsect of one deposit and then, advancing valuable security loans against false receipts.
6. On the basis of the above information, an FIR being RC 1(A)/2000 was registered by the CBI, ACUIV Branch. The investigation was entrusted to Shri R. K. Saini, Deputy SP, CBI, who after investigation filed the chargesheet. Case of the Prosecution
7. The case of the prosecution against the accused is that the accused, A. Govind Raju, while working as Sr. Manager, Incharge of Canara Bank, Subroto Park Branch, during the period from 16.6.1995 to 29.5.1999, dishonestly and fraudulently prepared a number of false KDRs (Kamdhenu Deposit Receipts) and advanced VSL (Valuable Security Loan) against them, in some cases, even without the authority of the Account Holder. It is alleged that he withdrew the said loan amounts himself and misappropriated the same. In other cases, he is alleged to have misappropriated the amount returned to him in cash by the borrowers by putting it to his own use rather than depositing the same in their accounts.
8. Specific instances of such fraud, as detailed in chargesheet CBI vs. A. Govind Raju 4 of 72 pages : 5 : CBI case No. 25/11 may be summarized as follows :
a. NRNR 40 of 96
(i) It is alleged that on 22.6.1996, the accused received a deposit of Rs.10,68,400/ from Mrs. Maninder Kaur & Mrs. Sudershan Sandha and opened a NonResident Non Repatriable (NRNR) No. 40/96 in their joint names and issued a Kamdhenu Deposit Receipt (KDR) No.89448 for the said amount in their names. However, the accused issued further KDR Nos. 0136197 and 0136383 against the same deposit mentioning the same date of deposit.
(ii) Later, he disbursed a loan of Rs.8.5 lakhs to a firm owned by Shri J. S. Sandha, attorney of the depositors by pledging KDR No.136383 against the same. A valuable Security Account No.215/96 was opened in this respect.
The remaining two KDRs issued by the accused against the same deposit were never cancelled. Further, allegation against the accused is that on 18.2.1998, Shri J. S. Sandha paid a sum of Rs.6,02,745/ in cash to the accused towards clearance of the outstanding in the loan amount, but the accused did not deposit the same in their account and dishonestly misappropriated the said amount. Later on, the accused issued a cheque of Rs.6,05,000/ in favour of Shri J. S. Sandha from his personal account No.50100 in CBI vs. A. Govind Raju 5 of 72 pages : 6 : CBI case No. 25/11 the same branch towards return of the amount misappropriated by him, but the said cheque was dishonoured by the bank for want of sufficient funds. b. NRNR KDR No. 2 of 95.
(i) One Karamjit Singh and his wife, Darshan Kaur, living abroad had deposited a sum of Rs.17,54,000/ and against that, an NRNR KDR no. 2 of 95 dated 27.10.1995 was issued.
(ii) On 11.5.1996, a VSL Account No. 164/96 was opened in the name of the depositors by pledging the above deposit receipts. It is alleged that against the said deposit, a loan of Rs.5.20 lakhs and later on, another amount of Rs.
50,000/ were withdrawn in cash by the accused himself without the knowledge of the depositors.
c. NRNR 1 of 95
(i) The same depositors, namely, Shri Karamjit Singh and Smt. Darshan Kaur had another deposit being NRNR 1 of 95 to the tune of Rs.15 lakhs with the said Subroto Park Branch of Canara Bank. It is alleged that the accused unauthorizedly opened a VSL account No.119 of 96 and sanctioned a loan of Rs.3 lakhs in favour of one A. K. Aggarwal by pledging the said NRNR 1 of 95 and on 11.1.1996 withdrew the amount himself and dishonestly CBI vs. A. Govind Raju 6 of 72 pages : 7 : CBI case No. 25/11 misappropriated the same.
(ii) In the same VSL account No.119 of 96, another amount of Rs.3.5 lakhs is stated to have been sanctioned by the accused in favour of M/s Datsun Batteries Pvt. Ltd. owned by Shri A. K. Aggarwal. It is alleged that Shri A. K. Aggarwal returned the loan of Rs.3.5 lakhs in cash to the accused but he again misappropriated the same by not depositing the same in the loan account.
(iii) Then again, as alleged by the prosecution, on 31.1.1996, the accused opened another VSL account No. 125/96 without the authority of the depositors and sanctioned a loan of Rs.7.4 lakhs in the said loan account.
(iv) He further sanctioned another amount of Rs. 3,17,346/ in the name of Shri Karamjit Singh without his authority in the same loan account and issued three demand drafts for Rs.1,05,600 each in favour of M/s Gani Nath Cooperative Housing Society, New Delhi, on behalf of Karamjit Singh.
9. Thus, alleging the above acts of forgery, cheating, misappropriation and misconduct against the accused, CBI filed this chargesheet in the court. The accused is stated to have been dismissed from the service on 11.7.2003 and CBI vs. A. Govind Raju 7 of 72 pages : 8 : CBI case No. 25/11 therefore, no sanction under section 19 of the Prevention of the Corruption Act, 1988 was obtained against him. Charges
10. After hearing both, the prosecution & the defence, my ld.
predecessor, finding a primafacie case against him, framed charges against the accused under section 13(1)(d) & 13(1)(c) of the Prevention of Corruption Act, 1988 and under sections 420, 467, 468 and 471 of the IPC on 2.7.2005. The accused pleaded not guilty and claimed trial.
Prosecution Evidence
11. To prove its case against the accused, the prosecution has in all examined 30 witnesses.
Bank Officials
12. PW 3 Shri M. K. Gupta, a star witness of the prosecution, was the Manager in the Vigilance Department of the Canara Bank during the relevant time. He deposed about the various types of NRI Accounts and explained the difference between NRNR KDR Accounts and NRE KDR Accounts. He has further deposed that he conducted an investigation into the irregularities in NRNR KDR, NRE KDR and VSL accounts of the Subroto Park Branch. He detailed the irregularities he CBI vs. A. Govind Raju 8 of 72 pages : 9 : CBI case No. 25/11 observed during the investigation like issuance of more than one deposit receipt in the account of NRNR KDR 40/96, alteration of details by using white fluid and granting of VSL No. 215/96 by pledging a different KDR than what was issued to the depositor. As per his deposition, this resulted in non mentioning of the loan on the receipt available with the depositor and consequently, the depositor claiming the full maturity amount of the deposit without adjusting the outstanding against the loan. He proved various account opening forms, multiple deposit receipts, issued by the accused against the said accounts, loan applications, etc. He also proved two 'No Dues Certificates issued by the accused in respect of A/c No. NRNR 40/96.
13. Shri K. M. Shet, the then General Manager has been examined as PW 8. He has proved his complaint dated 10.5.2000, which became the basis of FIR as Ex. PW 8/1.
14. PW 15 Shri Manohar S. Nayak was the General Manager Incharge of Personnel Wing, Canara Bank, HQ Bangalore, in the year 2003. He has proved the order of dismissal dated 11.7.2003 of the accused as Ex. PW 15/A. CBI vs. A. Govind Raju 9 of 72 pages : 10 : CBI case No. 25/11
15. PW 22 Shri M. V. Kumar was the immediate successor of the accused and has handed over a number of documents to the CBI vide seizure memos, which have been proved as Ex. PW 22/A to Ex. PW 22/I. He has proved several other documents like cash register, vouchers, cheque return memo, etc. He has also deposed that some documents TDRs pertaining to NRNR 40/96 were prepared by the accused but said TDRs were not found in the bank. He also deposed about the various discrepancies on the part of the accused in managing the accounts of the NRIs, as revealed from various documents available in the bank after the accused was transferred out.
16. PW 22 has also deposed regarding the payment of Rs.
18,38,060/ as the full maturity amount of KDR 136197 when the same was presented before him by Shri J. S. Sandha, since the said KDR had not been pledged with the bank against the loan account.
17. PW 24 Shri C. Venketeshan was posted as Asstt. General Manager in Inspection Department of Canara Bank's Delhi Circle Office. PW24 elaborately deposed about the procedure of the bank to NRI account and with regard to the duties of Sr. Manager/ Branch Incharge.
CBI vs. A. Govind Raju 10 of 72 pages : 11 : CBI case No. 25/11 18. The prosecution has also produced the following bank
officials, who have identified the signatures, handwriting of the accused and of other bank officials on various account opening forms, KDRs, debit & credit slips, ledgers, application for grant of VSL, cash book, letters, etc. :
(i) PW 4 Shri Naresh Chauhan, working as clerk,
(ii) PW6 Shri Kamla Pati Kharel, working as clerk,
(iii) PW7 Shri J. K. Malik, working as clerk,
(iv) PW11 Shri R. K. Jain, working as Chief Manager,
(v) PW12 Shri P. Gopal Krishanan Nair, working as Officer,
(vi) PW13 Shri P. Nagabhushnam, working as Officer
(vii) PW17 Shri K. N. Anand, working as Officer
(viii) PW19 Shri Sapna Sharma, working as clerk.
(ix) PW17 Shri S. S. Mehra, working as Officer
(x) PW23 Shri P. K. Moorthy, working as Officer
(xi) PW25 Shri Satish Gupta, Officer, UBI
(xii) PW27 Smt. Krishna Barat, clerk, UBI.
(xiii) PW28 Smt. Krishna Barat, Officer, UBI.
NRI Accounts Holders
19. Out of the account holders, Mrs. Sudershan Sandha has been examined as PW14, her husband Shri J. S. Sandha as PW18.
CBI vs. A. Govind Raju 11 of 72 pages : 12 : CBI case No. 25/11 Shri Karamjit Singh has been examined on commission
through Video Conferencing as PW30. Another borrower, Shri Ashok Aggarwal was cited as witness but was found to be not traceable and therefore, was not examined. Witnesses of Investigation
20. PW1Sh. Mapal & PW2Sh. Shankar Dayal were posted in National Commission for SC & ST at the relevant time. PW1 has proved the specimen writings of Sh. Karamjit Singh & Mrs. Darshan Kaur as Ex.PW1/A1 to Ex.PW1/A5 and Ex.PW1/A6 to Ex.PW1/A10, respectively, which were taken in his presence. PW2Shri Shankar Dayal has proved the specimen signatures of Mr. Sandha, which were taken in his presence as Ex.PW2/1 to Ex.PW2/10.
21. PW 9 Shri Gauri Shankar Singh was also working as LDC in National Commission for Schedule Caste, Kendriya Bhawan, Aliganj, Lucknow. He is the witness of taking the specimen signatures of Shri Karamjit Singh by CBI officer and proved the specimen signatures sheets as PW 9/1 to Ex PW 9/5.
22. PW10 Shri Manoj Kumar, who was posted as LDC in National Commission for SC/ST Lok Nayak Bhawan, New Delhi, was CBI vs. A. Govind Raju 12 of 72 pages : 13 : CBI case No. 25/11 also examined to prove the specimen signatures and writings of accused, Ex. PW10/1 to Ex. PW 10/15, which were taken in his presence.
23. PW16 Shri Mange Ram, who was working as a peon GroupD in National Commission for SC/ST, Lok Nayak Bhawan, New Delhi. He has proved the specimen signatures of Shri Jasmitter Singh Sandha and that of Smt. Sudershan Sandha, which were taken by CBI in his presence.
24. PW21 Shri S. C. Mittal is a Handwriting Expert, who proved his Opinion Report on signatures & handwritings, forwarded to him.
25. PW29 Shri R. K. Saini is the first IO and PW26 Shri M. S. Bisht is the second IO.
Examination of Accused
26. Thereafter, accused was examined under section 313 Cr.P.C.
He did not dispute the issuance of multiple KDRs against a single deposit but explained that issuance of the more than one KDR becomes necessary when rate of interest are revised or when the depositor asks to change the term of the deposit, CBI vs. A. Govind Raju 13 of 72 pages : 14 : CBI case No. 25/11 etc. He has also stated that if the original deposit receipt is with the party, who is overseas, in case the party availing the loan facility, another deposit receipt is prepared and is kept duly noting the lien on the same. He has insisted that there is no bar to making more than one FDR against the one deposit provided no duplicate payment is made. He has denied all other allegations of sanctioning VSL loans without the authorisation of the depositor, withdrawing the amount of loan himself and of the depositor returning loan amount to him in cash and of not depositing the same in his account.
27. On being asked about the various documents including ledger sheets, debit & credit slip, No Due Certificate, etc., he stated that most of them were prepared by the staff and were just signed by him in routine without any malintention. Defence Evidence
28. In Defence Evidence, accused A. Govind Raju examined himself as DW1 in support of his version. He deposed that he joined Canara Bank in 1972 as a clerk, joined Indian Army on short service commission and got relieved from the Indian Army as a Captain in the year 1981 whereafter, he rejoined the Canara Bank as Scale I Officer. DW 1 has deposed that CBI vs. A. Govind Raju 14 of 72 pages : 15 : CBI case No. 25/11 during the time he was posted at the Subroto Park Branch, the deposit of the branch rose from Rs.16 crores to Rs.300 Crores because of his efforts. He has deposed that for his sincere efforts and skills, he has earned several commendation certificates from his superiors. He has deposed that in the Subroto Park Branch, he carried out his duty with honesty and sincerity.
29. He has further deposed that there is no bar to filling of the Account Opening Form or other application/forms by the bank manager. He has explained that the KDR No. 136383 was initially prepared for 12 months and later on, at the request of the party, the term was changed to 36 months. Therefore, the same contains the alteration as appearing on the receipts. It is this FDR which was pledged against the loan VSL 215/96.
30. DW1 has deposed that the parties always used to make payments by cheque or by way of transfer of proceeds of their other accounts, which all duly reflected in the ledger. It is, therefore, a totally false claim that Shri J. S. Sandha had ever given a cash amount of Rs.4 lakhs to DW1. With regard to issuance of No Dues Certificate, DW1 has deposed that he CBI vs. A. Govind Raju 15 of 72 pages : 16 : CBI case No. 25/11 issued the certificate in good faith on the basis of another certificate dated 18.2.1998, Ex. PW 3/6, certifying that no interest was due against the loan accounts. He has deposed that full maturity amount of KDR 40/96 was released by his successor and not by him. He has deposed that the cheque for Rs.6,05,000/, Ex. PW 18/F issued by him in his personal capacity and not against any liability of the VSL Account 215/96 and that no complaint was ever made by the party in this respect.
31. In respect of account NRNR KDR 1/95 also, DW 1 has deposed that more than one receipt were issued due to change of interest and period of deposit. The loans advanced this KDR were on the instructions of the depositors and that all the entries, vouchers, etc., have been made by different officers and that he only signed the same as a Manager in routine course of business. All the loans are duly reflected in the ledger. He has also deposed that Mr. Karamjit Singh had himself written the letters to the General Manager, Canara Bank, requesting to recover the outstanding loan amount from the proceeds of his FDR. It cannot, therefore, be now claimed by the party that the loans were granted without his authorization.
CBI vs. A. Govind Raju 16 of 72 pages : 17 : CBI case No. 25/11
32. In his deposition, the accused, A. Govind Raju, has asserted that at the relevant time, there were a number of circulars from the bank to give personalized priority treatment to NRI party to boost the deposit of foreign funds. The interest rate of their fixed deposits reached high figure of 19% and kept fluctuating frequently. A new scheme was started, whereby Indian residents were allowed to become joint account holders with NRIs. It was important, in the interest of bank as well as country's economy, to give the best possible service including best rates of interest to the NRI customers and this was one of the reasons to prepare fresh deposit receipts whenever the interest rate changed to the advantage of the customers. The multiple KDRs, prepared by him, are all on record and were not used by him to make any double payment to anybody or to cause any loss to the bank. He has deposed that CBI never seized the documents including, circulars, schemes, etc., which would have proved that he worked only for advancing the interest of the bank. Arguments of the Prosecution
33. I have heard Shri Surender Sinha, learned Special Public Prosecutor on behalf of CBI and Shri U.B.N. Singh, learned CBI vs. A. Govind Raju 17 of 72 pages : 18 : CBI case No. 25/11 counsel for the accused at length and have gone through the elaborate written arguments filed by both sides.
34. The accused has been charged under section 13(1) (d) & 13(1)(c) read with section 13(2) of the Prevention of Corruption Act, 1988 and sections 420, 467, 468, 471 of IPC.
35. The Ld. Special Public Prosecutor has argued that the case as against the accused has been fully proved by the oral and documentary evidence on all the above charges. He has contended that :
(i) the signatures of the accused as Issuing Authority have been confirmed by the Handwriting Expert report on multiple FDRs issued against one deposit in case of all the NRNR Accounts, subject matter of this case, namely, NRNR 40/96, NRNR KDR 2/95, NRNR 1/95. It is, therefore, proved that they all were issued by the accused.
(ii) It is proved in each case that the accused had handed over one KDR to the customer and retained and used the other duplicate KDR in the bank. Though, the loans were granted against the NRI deposit, the KDR handed over to the customer was not taken back from him duly discharged. This resulted in customers presenting the unendorsed KDR for CBI vs. A. Govind Raju 18 of 72 pages : 19 : CBI case No. 25/11 payment of full maturity value without deducting the outstanding loan taken against the said deposits. This has been proved by the absence of any endorsement of loan on the KDR No.136197 (Ex. PW3/4) which has been proved to be presented by the borrower for repayment and on KDR No. 136375(Ex. PW3/13), the proceeds of which were sought to be transferred to Pahar Ganj branch of the bank.
(iii) It has been proved that the accused issued two certificates, Ex. PW3/5 and Ex. PW3/6, respectively to the effect that no amount is due against the VSL to the borrowers i.e. Mrs. Maninder Kaur & Mrs. Sudershan Kaur, while the ledger and the accountbooks of the bank clearly showed the outstanding amounts.
36. The Ld. prosecutor has strenuously argued that the above shows that the accused had dishonestly prepared false KDRs and issued false certificates which act amounts to forgery of valuable security and had used such forged documents attracting the provisions of sections 467, 471 of IPC. He has further argued that the same was done with the intention of cheating the bank by inducing it to deliver the full maturity amounts of the FDRs to the borrowers despite the loan liabilities being outstanding against them. The charge under CBI vs. A. Govind Raju 19 of 72 pages : 20 : CBI case No. 25/11 section 420 IPC is also therefore, proved against the accused.
37. His further contentions is that the above acts of the accused have been committed by him by abusing his official position as Branch Incharge of the public sector bank in order to obtain the pecuniary advantage for himself without any public interest, amounting of an offence under section 13(1)
(c) of the Prevention of Corruption Act, 1988.
38. Ld. Spl. PP has further argued that it has been proved by the evidence of PW18 that he had entrusted to the accused a sum of Rs. 4 lacs for the purpose of depositing in his account but the accused did not deposit the same and therefore dishonestly misappropriated the same and committed an office under Section 13 (1) (d) of the Prevention of Corruption Act, 1988. This has been further corroborated by the proof of a cheque (Ex.PW18/5) for R.6,05,000/ issued by the accused from his personal account in favour of Mrs. Maninder Kaur Sandha purporting to be in return of the amount, misappropriated by him.
39. Further argument of the Ld. PP is that the documentary evidence and the deposition of PW30 Karamjit Singh has CBI vs. A. Govind Raju 20 of 72 pages : 21 : CBI case No. 25/11 proved that accused had granted various VSL loans in the name of Karamjit Singh as well as to a third party against the deposits of Karamjit Singh without his authority which amounts to forgery, cheating, criminal misappropriation and misconduct under Section 468,471 IPC and 13 (1) (d) of the PC Act.
Defence Arguments
40. Shri U.B.N Singh, Ld. Counsel for the accused, has vociferously assailed the evidence led by the prosecution and has contended that whole case against the accused is false and has been concocted by some senior officers of the bank in connivance with rich and influential NRIs. He has argued that the procedure of the bank contained in the manual and various circulars issued from time to time have not been collected by the IO and the IO himself has admitted that he was not conversant with the procedure. His contention is that had the manual been produced , it would have been shown by him that all the acts attributed to him were justifiable under the procedure.
41. It is the contention of the accused that issuance of various KDRs against the same deposit is justifiable, as the same can CBI vs. A. Govind Raju 21 of 72 pages : 22 : CBI case No. 25/11 be done because of the fluctuations in the rate of interest. In the present case, all the various FDRs issued by him and over writings on them have been made only for the purpose of giving justifiable benefits to the NRI customers, by passing on the benefit of rate fluctuations, at their request.
42. The next contention of the Ld. Counsel for the accused is that none of the acts alleged in this case has resulted in any damage,loss, injury to any person and as such there is no victim in the case. The account holders have not filed any complaint. The bank loans were fully secured, having been granted against FDs. The loans were not repaid by the borrowers but were ultimately adjusted against the proceeds of the FDRs. The result of this is that there is absolutely no loss or no gain to any person. In such a case, no criminal liability for the offences of cheating , forgery or misconduct can be fastened against the accused. He has heavily relied upon the landmark judgment of the Hon'ble Supreme Court in Dr. Vimla Vs. Delhi Administration , AIR 1963 SC 1572 in support of his contention.
43. Next contention of Ld. counsel is that the witnesses have admitted that there have been regular inspection and con CBI vs. A. Govind Raju 22 of 72 pages : 23 : CBI case No. 25/11 current audit in the branch. Since the charge pertains to the period 1995 to 1999 atleast five inspections would have been conducted. No irregularities were found in any inspection or audit. The prosecution has not filed any of the inspection reports, which, if filed, would have proved him innocent. In fact, the FIR, itself, is stated to be based on a special inspection conducted by PW 3. However, even that report has been deliberately concealed by the bank officials and IO. Both the complainant, PW 8 & PW3, have referred to this inspection report but as per the deposition of PW 3, IO had never asked him for a copy of the same. This has caused serious prejudice to the accused since the said report would be the first report in which some irregularities were allegedly found despite no such finding given in the previous inspection reports.
44. On one hand, the investigating agency has concealed the report of PW3 and on the other, they have sought to prove the dismissal order passed against the accused on the basis of that very report. Proof of the dismissal order is, in any case, barred under section 54 of the Indian Evidence Act.
45. Another important contention of the Ld. counsel is that even CBI vs. A. Govind Raju 23 of 72 pages : 24 : CBI case No. 25/11 as per the allegations in the prosecution case, the beneficiary of the acts of preparing multiple FDRs and Non endorsement of lien on the FDRs handed over to the borrowers would be the NRI customers. The offence of cheating, if any, would have been committed by them and even with regard to the charge under section 13 (1) (d) of the Prevention of Corruption Act, 1988, the actual beneficiaries cannot be totally let off. He has strongly argued that investigating agency, in connivance with PW 3 and PW 8 and under the influence of NRI, has made out a false case of entrusting of cash amounts by NRIs to the accused and thereby, exonerating them and making the accused a scape goat.
46. On merits of the accountwise allegation, the ld. counsel has not denied that multiple FDRs were issued against one deposit by the accused but has pleaded that noncancellation of previous FDRs was due to genuine inadvertence on each occasion of preparation of new FDRs. He has contended that the depositions of PW18 J.S. Sandha and PW30 Karamjit Singh are full of doubts and cannot be relied upon in order to prove misappropriation of amounts entrusted to the accused and of granting of loans without the depositors' authority. He has CBI vs. A. Govind Raju 24 of 72 pages : 25 : CBI case No. 25/11 argued that all the transactions that had taken place are duly and truly reflected in the ledgers and that it itself proves that there was full transparency in the records and therefore there was no mala fide intention on the part of the accused.
47. Ld. Counsel for the accused has also relied upon the following cases to buttress his contention that any act of a public servant which has not ultimately resulted in his 'obtaining a valuable or pecuniary advantage for himself or any other person' cannot be covered under section 13 (1) (d) of Prevention of Corruption Act:
(i) A. K. Ganju Vs. CBI, Crl. M. C. 2384/2011
(ii) Anil Maheshwari Vs. CBI Crl. A 1455/2012
(iii) State of M.P. Vs. Sheetal Sahai, 2009, Cr. L. J. 4436
(iv) Prem Chand Vs. Govt. of NCT of Delhi & Ors, AIR 2007 SCW 2532.
(v) Anil Kumar Bose Vs. State of Bihar, Manu/SC 0097/1974
(vi) Rita Handa Vs. CBI 152 (2008) DLT 248 Analysis of Evidence and Findings
48. In order to appreciate the evidence led by the prosecution, it may be necessary first, to get acquainted with the procedure adopted at the relevant time by the Canara Bank for opening of NRI account and grant of loan, etc. It is important here to take note of the contention of the accused that the prosecution has concealed the actual mannual, guidelines CBI vs. A. Govind Raju 25 of 72 pages : 26 : CBI case No. 25/11 and circulars, etc. on the basis of which he could justify his actions. It was pointed out that accused even filed an application under section 91 Cr. PC for summoning various mannual of instructions and circulars, etc. in respect of opening of NRE, NRNR, FCNR accounts, grant of valuable security loans on fluctuation in the rate of interest during the relevant period i.e. 199598. In response to the notice issued on this application, one Ajit Kumar Srivastava, Manager (Law) of the Canara Bank appeared and filed an affidavit stating that the said documents were not available/traceable as is clear from the order dated 29.4.2013 passed by my ld. predecessor. However, the procedures have been elaborated by some of the witnesses during the trial and have been tested through crossexamination by the accused. What weight can be attached to this evidence in the absence of the written guidelines shall be considered at the appropriate stage. Procedure
49. The most relevant deposition, in this regard, is that of PW24 Shri C. Venketeshan, who, at the relevant time, was holding a senior position as Asstt. General Manager in the Inspection Department of the Canara Bank. The procedure to be adopted and precautions to be taken by the Branch CBI vs. A. Govind Raju 26 of 72 pages : 27 : CBI case No. 25/11 Manager / Incharge as described by him may be summarized as follows:
(A) Opening of NRNR KDR Account.
50. PW24 has deposed that as and when an NRI approaches the branch, the Branch Incharge is supposed to satisfy himself that he is a genuine customer by inspecting his passport / visa or in case the NRI does not himself approach the branch, by requesting a formal introduction from the Consulate general of the concerned country. The application for opening of the account should be filed by the NRI in the presence of the Branch Manager. The remittance should be made by the NRI in the form of demand draft, pay order issued by the foreign bank in convertible currency or in Indian rupees in favour of Canara Bank remitted by a foreign bank. The formalities relating to the accounts are initially checked by the Section Incharge and then counter checked by the Sr. Manager. The Demand Draft/Pay order received by the Branch is entered in the foreign demand bill and foreign cheque discount register and then is sent for encashment. The Officer Incharge/Branch Manager open a NRNR KDR but does not deliver the same to the NRI till the proceeds of the pay order or and demand draft are realized by the bank.
CBI vs. A. Govind Raju 27 of 72 pages : 28 : CBI case No. 25/11
51. The concerned officer opens a ledger sheet of the NRNR KDR account in the name of NRI. Usually after opening a ledger sheet, the signatures are separately taken on specimen signature card, however there is a column in the account opening form itself for specimen signature which are identified by the introducer while opening the account. Full address, local address, if any of the NRI is to be noted by the account clerk. The NRNR KDR has to be issued mentioning the term of deposit and rate of interest along with the amount deposited. The officer incharge of a particular section or the Branch Manager is supposed to check the contents of the ledger sheet prepared by the clerk and sign the same. The KDR has to be put up before the Branch Manager along with the ledger sheet duly checked by the Officer concerned and then the Branch Manager/ Sr. Manager countersigns the KDR. At the time of delivery of the KDR to the party, his signatures are taken on the counterfoil of the KDR. It is the duty of the concerned Sr. Manager/ Incharge to ensure that the KDR is handed over to the right person under proper receipt. In case the original KDR is lost or destroyed, a duplicate KDR can be issued having proper endorsement on the face of it including the number of the original KDR but only after taking an indemnity bond from the depositor to cover the CBI vs. A. Govind Raju 28 of 72 pages : 29 : CBI case No. 25/11 possibility of any loss to the bank in case the original KDR is later on found. On issuance of duplicate KDR, relevant entries are made in the original application form NRI deposit receipt and the ledger sheet of the KDR account . No duplicate KDR can be issued except by following the above procedure. No officer of the bank is authorized to issue a second or third KDR against the single deposit in respect of which original NRNR KDR has already been issued.
(B) Procedure for availing of loan against the security of NRNR KDR
52. PW24 has deposed that NRIs are permitted to obtain the loans upto the 75% of the face value of the NRNR KDR. The loan can be obtained by applying for the same to the Branch Manager alongwith the original deposit receipt and by enclosing the loan documents including a pledge letter for pledging the original NRNR KDR with the bank. On receipt of such application along with pledged KDR, the Officer Incharge checks the genuineness of the documents and notes the lien of the loan on the deposit receipt and also in the KDR receipt. The amount of the loan is then debited to the loan account and credited to the party's account through necessary voucher. In case the party is unavailable in India, CBI vs. A. Govind Raju 29 of 72 pages : 30 : CBI case No. 25/11 he can send special request letter along with original KDR and the pledge letter and in that eventuality, it is the duty of the Incharge of the bank to ensure that signature of the NRI depositor on the documents are genuine and that the request is also genuine. After sanctioning the loan, an intimation has to be sent to the party that the loan has been sanctioned against his KDR.
53. No loan can be sanctioned to a third party against the security of NRNR KDR except on a written authority from the NRI depositor along with the deposit receipt and also a third party pledge letter in the prescribed form signed by the depositor.
54. As soon as the loan is sanctioned by the Branch Incharge, the concerned assistant/clerk will prepare the debit slip of the amount and will open a ledger sheet giving a loan account number. The details of the security pledged against the loan including its printed number has to be mentioned on the ledger sheet. An entry of the security pledged has to be made in the security register of the bank and also on the KDR ledger sheet. These entries have to be checked and counter signed by the Branch Manager.
CBI vs. A. Govind Raju 30 of 72 pages : 31 : CBI case No. 25/11
55. The securities are to be kept in a strong room having double lock. All inward and outward entries of this deposit have to be maintained in security register. No Sr. Manager or Manager or any other officer of the bank is authorized to keep the deposit receipt etc. in his personal custody.
56. The witness has been cross examined at length on behalf of the accused. He has admitted that NRI customers are given priority treatment by the bank and can be given personal services by the bank. However, he has maintained that credit should not be given to the instruments unless the proceeds are realized. He has explained that generally the customer should himself fill the account opening form but has admitted that in case of exigencies, the Branch Manager also fill up the account opening form. He has further admitted that in case of exigencies i.e. the staff not being available, there is nothing wrong with the Branch Manager filling the blanks in the NRNR KDR issued to the customers but has added a rider that same should be done after following all the formalities. He has also explained that bank follows dual system of checking, therefore even if a receipt is signed/ issued by the branch, it should also contain the initials of the person who has prepared and checked the CBI vs. A. Govind Raju 31 of 72 pages : 32 : CBI case No. 25/11 instrument. He reiterated that in case the Branch Manger himself prepares, check and deliver the receipt to the customers without anybody's involvement, he does it at his own cost and risk of consequences.
57. On being questioned, PW24 admitted that there is a system of internal concurrent audit and annual inspection and that internal audit has to be done at least once in 18 months if there is any irregularity in the branch, it is generally reflected in the concurrent and internal audit. He has admitted that as per the Bank Manual. The Branch Manager has the authority to sanction the loan against the deposit. In reply to a question, he has admitted that in case proceeds of loan sanctioned to the party has been credited to the account, it shows the genuineness of the transaction. He explained that the practice of retaining counterfoil of the deposit receipts, cheques, and DDs, etc. had not been dispensed with during his service tenure upto the year 2000 but he does not know the present situation.
58. He stated that so far as the present case is concerned, he has not gone through the inspection report and could not comment whether there was any irregularity pointed out CBI vs. A. Govind Raju 32 of 72 pages : 33 : CBI case No. 25/11 therein. He also could not comment whether there had been no double payment of any KDR.
59. PW22, who was the successor of the accused, A. Govind Raju, at the relevant time, has also deposed that valuable security loans are granted against the term deposit of the bank. He has deposed that, in case the rate of interest is revised by the bank and a customer wants to take the benefit of it, he has to present the original FDR duly discharged to the bank. The original FDR has to be cancelled and be marked as 'closed before maturity' and a new FDR can be issued bearing new number. In such a case, no interest is payable to the customer for the first six months. He has also insisted in his deposition that at the time of sanction of loan, the Term Deposit Receipt against which the loan is being sanctioned is taken duly discharged from the customer alongwith the pledge letter duly signed by the customer in favour of the bank. Endorsement in this regard has to be simultaneously made on the term deposit receipt as well as on the ledger sheet of the deposit.
60. I, now, proceed to analyse the evidence in respect of the acts attributed to the accused and give my findings thereon.
CBI vs. A. Govind Raju 33 of 72 pages : 34 : CBI case No. 25/11 Preparation of Multiple FDRs against one deposit.
61. The fact that the accused did issue multiple FDRs/KDRs in respect of deposit NRNR 40/96, NRNR 1/95 & NRNR 2/95 has been sufficiently proved by the prosecution. The following FDRs/KDRs have in this regard been produced and proved by the prosecution :
(i) NRNR 40/96 :
62. An amount of Rs.10,68,400/ was deposited by Smt. Maninder Kaur Sandha and her mother, Smt. Sudershan Sandha on 21/22.6.1996. Their signatures on the Account Opening Form have been admitted by Smt. Sudershan Sandha appearing as PW14. The following KDRs are issued by the accused against this one deposit have been produced/proved by the prosecution: KDR Maturity Sl. Term of Proved No. & amount Remark No Deposit as Date in Rs.
1. 136197 3 years 18,38,060 Ex. Has corrections by 21.6.96 PW3/4 way of crossing
2. 136383 3 years 18,81,594 Ex. Has correction by 21.6.96 PW3/3 applying white fluid.
3. 136540 3 years 18,38,060 Ex.
21.6.96 PW22/P
4. 89448 Not Not Reported to be un known known traceable finds mention in the original deposit slip of 40/96 Ex.
PW22/B1 & ledger
sheet Ex. PW5/A.
CBI vs. A. Govind Raju 34 of 72 pages
: 35 :
CBI case No. 25/11
(ii) NRNR 1/95
63. An amount of Rs.15 lakhs was deposited by NRI Shri Karamjit Singh and his wife, Darshan Kaur on 25.8.1995. The following deposit receipts have been issued for this account : Maturity Sl. KDR No. Term of amount Proved as Remark No & Date Deposit in Rs.
147750
1. 2 Years 1937367 Ex. PW3/15
dt 25.8.95
136154 Renewal of
2. 2 Years 2013707 Ex. PW3/16
dt.1.11.95 previous FDR
(iii) NR NR 2/95
64. An amount of Rs.17,64,000/ was deposited on 7.10.1995 by Shri Karamjit Singh and Smt. Darshan Kaur. The FDRs issued against this deposit are:
Date & Term amount Sl. KDR No. Proved of of Remark No & Date as Deposit Maturity (in Rs.) 27.10.96 147855 Ex.
1. 1 year 27.10.95 PW3/9 20,22,497
(i)Purported to be in renewal of previous KDR dated 27.10.95.
136153 31.10.97 Ex.
2. 2 years (ii)contains endorse
1.11.95 23,54,694 PW3/11
ment at the back that
it is pledged to VSL
A/c no. 164/96.
3. 136175 3 years 10.5.1999 Ex. (i)Purported to be in
11.5.96 32,87,056 PW3/13 renewal of earlier
deposits.
(ii)Contains endorse
ment at the back
CBI vs. A. Govind Raju 35 of 72 pages
: 36 :
CBI case No. 25/11
requesting the
transfer of the
proceeds to Pahar
Ganj signed by
Karamjit Singh.
65. The signature of the accused on all above deposit receipts
have been duly proved by the report of the Handwriting
Expert, Ex.PW21/B. The accused has also not denied having issued the said FDRs either in his statement under section 313 Cr.PC or in his defence evidence.
66. Even prima facie it would appear that only one FDR should have been issued against one deposit, since multiple FDRs, if they could be encashed, would cause a huge loss to the bank by making payment of saveral times the amount actually deposited. However, the contention of the prosecution that issuance of multiple FDRs amounts to forgery under section 467 of IPC has to be examined in the context of the definition of False Document as appearing in section 464 of IPC, which is reproduced below:
Making a False Document "464. Making a false document - A person is said to make a false document or false electronic record First - Who dishonestly or fraudulently
(a) makes, signs, seals or executes a document or part of a document;
CBI vs. A. Govind Raju 36 of 72 pages : 37 : CBI case No. 25/11
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any (electronic signatudre) on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the ( electronic signature), with the intention of causing it to be believed that such document or part of document, electronic record or (electronic signature) was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with ( electronic signautre) either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly Who dishonestly or fraudulently causes any person to sign, seal, executed or alter a document or an electronic record or to affix his ( electronic signautre) on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration."
67. A reading of the above provision makes it clear that only the following categories of documents are covered under 'False Document':
(i) Prepared by impersonating some other person, who was authorised to make such document.
(ii) The documents cancelled or altered in material part without lawful authority.
(iii) A document which a person has been made to sign only by reason of unsoundness of mind, intoxication or disception without noting the contents of the same.
68. A document prepared by an authorised person, however, fraudulent its contents may with whatever gravity of dishonesty, the said contents may have been introduced, CBI vs. A. Govind Raju 37 of 72 pages : 38 : CBI case No. 25/11 does not therefore, fall under the category of false document under section 464 IPC.
69. In Mohd. Ibrahim & Ors Vs. State of Bihar & Anr, reported as 2010 Crl. Law Journal 2223, the accused no. 1 had executed two registered sale deeds in favour of accused No. 2 in respect of a property, which was owned by the complainant and not by him. The matter was at the stage of framing of charge when it reached the Hon'ble Supreme Court. Hon'ble Supreme Court, in context of section 467 and 471 of the IPC, observed that the condition precedent for forgery is making a false document (or false electronic record or part thereof). Making of false document has been defined under section 464 IPC. After analysing the aforementioned three categories of documents which are covered by the definition of false documents, Hon'ble Supreme Court observed as under:
"The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of ' false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land ( and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to CBI vs. A. Govind Raju 38 of 72 pages : 39 : CBI case No. 25/11 be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fradulently claiming it to be his even though he knows that it is not his poroperty. But to fall under first category of 'false documents'. It is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or excuted. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such socument ( purporting to convey some prperty of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, ther is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted.
70. Similarly, in Mir Naqvi Askari Vs. CBI, reported as (2009) 15 SCC 643, the Hon'ble Supreme Court while analysing the first condition laid down under section 464 IPC for a document to be covered as a 'false document' under section 467, 468, 471 or 477A IPC, observed as follows:
"164. A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Cleraly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of CBI vs. A. Govind Raju 39 of 72 pages : 40 : CBI case No. 25/11 someone else. The second criterion of the section deals wiht a case where a person without lawful authority alters a document after it has been made. There has been no allegation of the alteration of the voucher in question after they have been made. Therefore, in our opinion the second criterion of the said section is also not applicable to the present case. The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted with the making of a false documents.
71. In the case on hand, the accused was himself authorised to issue any FDR. He issued the multiple FDR, as proved by the prosecution, under his own signatures and did not impersonate anybodyelse. Therefore, in view of the clear law, enunciated by the Hon'ble Supreme Court, the action of the accused in issuing the multiple FDRs against one deposit cannot be termed as forgery. The said multiple KDRs are, therefore, not 'forged documents' and therefore, their issuance by the accused, in any manner, will by itself not be covered under sections 467 or 471 IPC.
Interpolation in FDRs
72. The prosecution has proved that the FDRs, Ex.PW3/3, Ex.PW3/4 & Ex.PW3/13 have corrections made on them either by crossing the previously written terms or by use of white fluid. The correction are, alleged to be made by the accused CBI vs. A. Govind Raju 40 of 72 pages : 41 : CBI case No. 25/11 himself or at his instance. The corrections pertain to the term of deposit, rate of interest and final maturity amount. This also has not been denied by the accused. His defence that correction in FDRs were permitted in the bank rules at the relevant time, has been countered by PW22 and PW24 in their evidence. However, bank procedures and rules could have been better proved by producing the relevant manual, circulars and guidelines. It has been noted above that same were not seized by the IO. Even, when the accused asked for the same by way of his application under section 91 Cr. PC, they were stated to be not available/traceable. In the absence of documentary proof of such procedures, the assertion of the accused that his actions were justifiable on the basis of such procedure cannot be totally sidetracked.
73. More over, none of the above said FDRs, which have corrections on them are alleged by the prosecution to have been utilised by the accused for the purpose of granting of loans. Alteration in a document, after it has been made, can amount to forgery only if it is done without the lawful authority, dishonestly or fraudulently. In the case on hand, because of the absence of documentary evidence of the bank procedure and guidelines, it cannot be said to be proved that CBI vs. A. Govind Raju 41 of 72 pages : 42 : CBI case No. 25/11 accused altered this FDR without authorization. Since, they have not been utilised by the accused, no fraudulent or dishonest intention can be attributed to him. Here, as held by the Hon'ble Supreme Court in Dr. Vimla Vs. Delhi Administration, reported as AIR 1963 SC 1572 , if act of the accused does not secure to him any advantage or any loss or injury to any other person, he cannot be held guilty of the criminal offence under section 467 IPC.
Grant of VSL loans.
74. Valuable Security Loans are proved to have been allowed by the accused against the three deposits under scrutiny : NRNR 40/96
75. VSL 215/96 : It has been proved that a loan of Rs.8.5 lakhs was allowed by the accused in the name of M/s Premier Metal Trading Company, a firm stated to be owned by Shri Jasmitter Singh Sandha, the husband of the borrower No.2 and father of the borrower No.1. He is also the Attorney for both the borrowers. The loan was disbursed at four different stages. Application for loans have been duly proved to have been made by Shri Jasmitter Singh Sandha and the signatures thereon have been identified by Shri J. S. Sandha himself deposing as PW18. The signatures of the accused on the CBI vs. A. Govind Raju 42 of 72 pages : 43 : CBI case No. 25/11 documents for granting of the loans have been duly proved by the Handwriting Expert's Report and have not been disputed by the accused. There is, therefore, no dispute that the loans of Rs.8.5 lakhs was allowed by the accused to the firm owned by Shri Jasmitter Singh Sandha against the deposit of Rs.10,68,400/ in NRNR 40/96. The entry to this effect is also reflected in the ledger sheet Ex. PW 12/7. NRNR 2/95
76. In respect of NRNR 2/95, the case of the prosecution is that the accused A. Govind Raju granted a VSL loan 164/96 for Rs. 5,70,000/ in the name of Shri Karamjit Singh and Smt. Darshan Kaur. Taking of any loan against his deposits has, however, been denied by Shri Karamjit Singh in his deposition as PW 30.
77. The prosecution has proved an application for loan of Rs.
5,20,000/ purportedly signed by Shri Karamjit Singh and Smt. Darshan Kaur, as Ex. PW3/7. The signatures of Shri Karamjit Singh on the loan application of Rs.5,20,000/ have been confirmed by the report of Handwriting Expert while no opinion have been expressed on the signatures of Smt. Darshan Kaur. There is no document to show how & to CBI vs. A. Govind Raju 43 of 72 pages : 44 : CBI case No. 25/11 whom, this amount was disbursed. So far as the additional loan of Rs.50,000/ is concerned, there is no application for the same on record. However, a debit slip for Rs.50,000/ has been proved as Ex.PW13/A(also PW4/2). The signatures of Shri Karamjit Singh, as appearing at the back of the debit slip in token of the receipt of the amount, have been opined by the Handwriting Expert as not tallying with the actual signatures of Shri Karamjit Singh vide his report, Ex. PW21/A. These signatures are, therefore, forged. On the other hand, the signatures of the accused on the same debit slip, authorizing payment of the amount in cash, have been reported to be tallying with his specimen signatures.
78. In this regard the deposition of PW6, who was the cashier at that time and who had actually made this payment on the relevant date, is important. PW6 has deposed that there is no marking of token number on this disbursement slip, Ex.PW4/2, which means that he had made this payment, either to the accused A. Govind Raju (who was the Branch Incharge at that time) or to his peon.
79. A consistent argument of the accused has been that the prosecution has only selectively produced documents. In this CBI vs. A. Govind Raju 44 of 72 pages : 45 : CBI case No. 25/11 context also, it is seen that in his application under section 91 Cr. PC he had included the correspondence between the bank and Karamjit Singh in order to prove that he was in knowledge of all the transactions but as already noted above, none of the documents were produced by the bank. In this context, I am inclind to agree with the Ld. defence counsel that mere non production of some documents by the prosecution does not by itself imply their absence. The statement of Shri Karamjit Singh that he never took any loan against his deposits is also not free from doubt since his signatures on the initial loan application have been duly proved. In fact, the signatures have been admitted by Shri Karamjit Singh himself in his deposition as PW 30.
80. However, in the case of additional loan of Rs.50,000/, there is positive evidence of Handwriting Expert that signatures of Karamjit Singh have been forged on the receipt. Although, the accused has not been directly connected in the report with the making of these signatures, it is duly proved that it was he who had authorized payment of this amount in cash and then, evidence of PW6 proves that the amount was handed over to him either directly or through his peon.
CBI vs. A. Govind Raju 45 of 72 pages : 46 : CBI case No. 25/11
81. There is, therefore, no escape from the conclusion that an amount of Rs.50,000/ has been illegally withdrawn by the accused in cash by abusing his official position as the Branch Incharge and without the authority of the depositor. NRNR 1/95
82. As per the case of the prosecution, the accused granted three loans in this account namely, VSL 119/96, 125/96 and one more, without a specific VSL No. and without the authorization of the depositors. No loan application, in this regard, has been seized or produced. However, the ledger sheet showing the entries of these loans have been proved as Ex.PW 17/H and Ex. PW12/A, both the ledgers contain a reference that loans have been granted against the NRNR 1/95. The loans are proved to have been disbursed in the following manner :
VSL 119/96
(i) Rs.3 lakhs on 17.1.1996 through deposit voucher Ex. PW 17/E, paid in cash to Ashok Aggarwal.
(ii) Rs. 3,50,000/ on 23.1.1996 paid through debit voucher Ex.
PW 17/F, in the account of Ashok Aggarwal's firm, namely, M/s Datsun Batteries (P) Ltd. vide credit slip, Ex. PW 17/G.
(iii) Rs. 2,80,000/ paid on 7.2.1997 to the account of Shri CBI vs. A. Govind Raju 46 of 72 pages : 47 : CBI case No. 25/11 Karamjit Singh vide debit slip, Ex. PW 17/C,which has been credited to the account of Shri Karamjit Singh vide credit slip, Ex. PW 17/D. VSL 125/96
83. An amount of Rs.7,40,000/ was credited to the current account of Shri Karamjit Singh, which is duly reflected in the ledgersheet, proved as Ex. PW12/8. The ledger sheet of the current account of Shri Karamjit Singh and Smt. Darshan Kaur (A/c No.008) has been proved as Ex.PW22/P5. Both the entries of the loan of Rs.2,80,000/ and Rs.7,40,000/ are duly reflected in this ledger sheet.
84. Yet another loan of Rs.3,17,436/ has been sanctioned by the accused and disbursed vide debit slip Ex. PW 19/E.
85. The prosecution has, further, itself proved as to how these loans have been utilized. The loan of Rs.3,50,000/ granted to Ashok Aggarwal's firm, M/s Datsun Batteries Pvt. Ltd., is proved to have been utilized by the customer in getting a cheque dated 16.1.1996 for Rs.4,80,000/ in favour of Vikas Motors Ltd., cleared. The cheque has been proved as Ex. PW21/G and it is stated by PW22 that the cheque was cleared CBI vs. A. Govind Raju 47 of 72 pages : 48 : CBI case No. 25/11 on 24.1.1996 after the amount of Rs.3,50,000/ was credited in his account.
86. The amounts credited to the account of Karamjit Singh have been proved to be utilized in issuing cheque of Rs.2,80,000/ to M/s Hind Cooperative Group Housing Society Ltd, proved as Ex. PW19/B, issuing of 5 cheques in the sum of Rs.1,60,000/ each in favour of M/s Hind Cooperative Group Housing Society Ltd., proved as Ex. PW21/H1 to Ex. PW21/H5. The amount of Rs.3,17,000/ has been utilised for issuing of three demand drafts of Rs.1,05,600/ each in favour of M/s Gani Nath Group Housing Society Ltd.. The application for demand draft has been proved as Ex. PW19/F.
87. The prosecution has proved that before the credit of loan amounts in the accounts of Shri Karamjit Singh, he did not have sufficient balance to clear the above mentioned cheques.
88. As in the case of loans granted against NRNR 2/95, in this case also, I am of the view that mere nonproduction of authorization letters, especially seen in the light of non production of correspondence with Karamjit Singh despite an CBI vs. A. Govind Raju 48 of 72 pages : 49 : CBI case No. 25/11 application filed by the accused, is not sufficient to prove lack of authorization to grant of loans. Shri Karamjit Singh in his deposition, generally, denied that he had taken any loan for himself or for any Ashok Aggarwal. He has also denied having known Ashok Aggarwal. However, the loans in favour of Karamjit Singh, in this case, have been credited to his account only and Ashok Aggarwal, who was cited as a prosecution witness has not deposed in the case in order to admit or deny the loans received by him or in order to explain under what circumstances, the loan was credited to his account. It is pertinent to note here that in case the accused had dishonestly granted the loan to Ashok Aggarwal out of the deposits of Karamjit Singh without the authorization of Karamjit Singh, Ashok Aggarwal should have been arrayed as an accused as a beneficiary of the fraud. He, however, has been cited as a witness and was reported to be not traceable when summons were issued for his deposition.
89. All the amounts of these loans are, therefore, duly accounted for & none of this can be said to be utilized by the accused for his own purpose. Even if the loans were allowed without the written authorization from the depositors, the same were granted only to clear the liabilities of the depositor. The CBI vs. A. Govind Raju 49 of 72 pages : 50 : CBI case No. 25/11 depositor cannot now make an allegation that they were granted without his authority or without his knowledge.
90. So far as the question of flouting the rules in granting of loans is concerned, the same could have been entertained, in case the allegation of the prosecution was that the loans have been granted with the illegal intention to benefit the borrowers. As already mentioned, the prosecution has not arrayed the borrowers as accused or even as abettor or co conspirators. In these circumstances, the contention of the prosecution that the accused acted with the mala fide intention in this regard cannot be entertained. Mere non observance of the rules during the performance of the public duties may be sufficient to attract departmental action but certainly not to attract penal provisions of the Prevention of Corruption Act, 1988, unless coupled with the prescribed mensrea. The following judgments cited by the accused further reinforce the proposition :
(i) Anil Maheshwari Vs. CBI Crl. A 1455/2012 (Delhi HC)
(ii) State of M.P. Vs. Sheetal Sahai, (2009, Cr. L. J. 4436)
(iii) Anil Kumar Bose Vs. State of Bihar, (1974 Cr. LJ 1026)
(vi) Rita Handa Vs. CBI, (2008) DLT 331 Misappropriation of Amount of Rs.4 lakhs.
91. PW18 has deposed that he handed over an amount of Rs.4 CBI vs. A. Govind Raju 50 of 72 pages : 51 : CBI case No. 25/11 lakhs to the accused, whereupon the accused issued the No Dues Certificate, Ex. PW3/5 & Ex. PW3/6. It may be noted here that the accused has not denied that the said certificates were issued under his signatures. It may however, be mentioned that for the same reasons as in the case of multiple FDRs, issuance of 'No Dues Certificate' although they contained false information does not amount to forgery under section 467 IPC.
92. PW18 has further deposed that the accused did not give any receipt for these four lakhs rupees. He came to know of the fact that the accused had not deposited the said amount in his account when on final encashment of FDR on maturity, a sum of Rs.6,05,000/ was deducted therefrom. He has deposed that he questioned the accused about it and on his persistence, accused issued a cheque of Rs.6,05,000/ from his personal account but the cheque when presented to the bank, was dishonoured. He has proved the cheque as Ex. PW18/F. As per the further deposition of PW18, the accused finally gave two cheques of Rs.75,000/ each in the name of Mrs. Maninder Kaur Sandha and paid Rs.2.5 lakhs in cash.
93. In the crossexamination of PW18, on the aspect of handing CBI vs. A. Govind Raju 51 of 72 pages : 52 : CBI case No. 25/11 over of Rs.4 lakhs to the accused, he has only been given a suggestion that his statement is wrong. The witness has, of course, denied the suggestion. The accused has not challenged the fact that he himself gave a cheque of Rs. 6,05,000/ to the witness from his account but only suggested that it was given for purchase of a plot of land. This also has been denied by the witness.
94. Now, weighing the two rival versions, I find that the version given by the witness is so natural and consistent that the version of the accused does not pose any challenge to its truthfulness.
95. As per the deposition of PW22 when he came to know about the loan due against NRNR 40/96, which he had already encashed to the extent of its maturity value, he recalled the pay order and then, after deducting the amount of outstanding, paid the following amounts to PW18 :
(i) Amount of Interest Rs. 7,69,660/
(ii) Amount of Principal - Rs.4,65,655/
96. The principal deposit amount was Rs.10,68,400/, which shows that the amount deducted by PW22 against CBI vs. A. Govind Raju 52 of 72 pages : 53 : CBI case No. 25/11 outstanding principal amount was Rs.10,68,400 - 4,65,655, which comes to Rs.6,02,745/. This appears to have been rounded off to Rs.6,05,000/ by PW 18 when he deposed that the amount of Rs.6,05,000/ was deducted from his maturity amount and therefore, he made the accused give him a cheque of Rs.6,05,000/. Further, deposition of PW18 is that even when the cheque was dishonoured he could extract atleast the original amount of Rs.4 lakhs from the accused. The crossexamination of PW18 or the evidence led by the accused in his defence, do not indicate any challenge to the factum of payment of Rs.4 lakhs by way of two cheques of Rs. 75,000/ and cash payment of Rs.2.5 lakhs.
97. The above leaves absolutely no doubt that PW18 had entrusted a sum of Rs.4 lakhs to the accused in his capacity as Branch Incharge for the purpose of deposit of the same in his account. The said amount was, however, dishonestly misappropriated by the accused.
NonPledging of FDR against the Loan Accounts.
98. Although VSL loans show that some FDRs were pledged against them, the fact is that they were the duplicate FDRs, which were shown as pledged. This is clearly the reason for CBI vs. A. Govind Raju 53 of 72 pages : 54 : CBI case No. 25/11 preparation of multiple FDRs and not the fluctuation of rates of interest, etc. as claimed by the accused. The original FDRs issued to the depositors were not taken back from them duly discharged. No endorsement was made on the said FDRs with regard to the bank's lien to the extent of the outstanding amount. This is proved by the absence of any such endorsement on the FDRs pertaining to NRNR 40/96 i.e. No. 136197, Ex.PW3/4, and pertaining to NRNR 2/95 i.e. 136175, Ex. PW3/13. As per the deposition of PW 22, both these FDRs have been presented by the respective borrowers to the bank for payment of the full maturity amount.
99. PW22 has deposed that on 23.6.1999 KDR No. 136197 was placed before him by Shri J. S. Sandha for encashment by way of demand draft. In his presence, Shri J. S. Sandha discharged the KDR and signed on the back of it. Then, he made an endorsement to prepare a DD of maturity amount of Rs. 18,38,060/ as full and final amount. A demand draft for the same was also prepared in the name of Mrs. Maninder Kaur Khera & Mrs. Sudershan Sandha and same was handed over to Shri J. S. Sandha. The concerned FDR is on record and has been proved as Ex. PW3/4. The endorsement made by Shri J. S. Sandha to the effect "Please issue DD in our favour." and a CBI vs. A. Govind Raju 54 of 72 pages : 55 : CBI case No. 25/11 endorsement made by PW 22 "Please make DD for Rs. 18,38,060. Please mention NRNR proceeds" are available at the back of the Ex. PW 3/4. Their respective signatures have been identified by Shri J. S. Sandha and PW22. Shri J.S. Sandha's signatures has also been tallied by the Handwriting Expert Report. There is no endorsement on the KDR with regard to any loan granted against this deposit. The demand draft of Rs.18,38,060/ in the name of Mrs. Maninder Kaur Khera and Mrs. Sudershan Sandha has also been proved on record as Ex. PW7/5.
100. In regard to NRNR 2/95, the FDR presented for the transfer of proceeds to Pahar Ganj Branch i.e. 136175 has been proved as Ex.PW3/13. It contains an endorsement at the back "Please transfer a NRNR FDR to Pahar Ganj Branch" signed in the name of Karamjit Singh. His signatures (Q44A) have been opined to be tallying with Karamjit Singh's specimen signatures in the Handwriting Expert Report, Ex.PW21/B. There are no other endorsement on this FDR. Particularly, there is no endorsement of any outstanding against any VSL loan.
101. Two vouchers purporting to be in respect of transfer of CBI vs. A. Govind Raju 55 of 72 pages : 56 : CBI case No. 25/11 Rs.32,87,056/ proceeds of NRNR deposit of Karamjit Singh to Pahar Ganj Branch have been proved as Ex. PW17/A & Ex. PW17/B. However, neither the FDR contains any endorsement of any Branch Manager to transfer the said proceeds nor do the two vouchers contain the signatures of any person. There is a letter dated 18.7.1999 on record purporting to be written by the then Sr. Manager of Subroto Park Branch to the Sr. Manager of Pahar Ganj Branch to note the lien of VSL 164/96, alongwith an endorsement of the manager of the Pahar Ganj Branch to the effect that "noted your lien in our books'. However, this letter has also not been proved in evidence.
102. The above deposition and documents prove beyond any doubt that full maturity amount of the original FDR was paid by way of demand draft to Shri J. S. Sandha without deducting the outstanding amount against his loan, thus giving him a pecuniary advantage and that Shri Karamjit Singh had presented his FDR for full maturity amount although there was outstanding against his deposit. The advantage actually obtained by him, has technically, not been proved. It has, however, been clearly proved that both the above were possible only due to reason that the accused did not get the CBI vs. A. Govind Raju 56 of 72 pages : 57 : CBI case No. 25/11 FDRs pledged and did not mark the bank's lien on them.
103. Now, this can obviously not be by mistake or inadvertence by a banker of the level of a Sr. Manager. It is plain commonsense that such an FDR can be got encashed by the depositor without getting his loan adjusted. This can, therefore, not be termed as a 'mere flouting of rules', I am fully convinced that this has been done deliberately and dishonestly by grossly abusing his official position as the Branch Incharge. Offence of Cheating
104. The accused has also been charged under section 420 IPC for the offence of cheating. However, the inducement to the bank to wrongly deliver the full proceeds of the FDRs have been made not by the accused but by the depositors. Shri J. S. Sandha, Attorney of the depositors, in NRNR 40/96, has proved that he was unaware about the outstanding till the outstanding amount was actually deducted. However, Shri Karamjit Singh, whose cheques have been cleared only by crediting the VSLs to his account, could not have been totally unaware. Be that as it may, so far as the accused A. Govind Raju, is concerned, in the absence of any charge of conspiracy or abetment against the depositors, he cannot be directly CBI vs. A. Govind Raju 57 of 72 pages : 58 : CBI case No. 25/11 connected with the offence of cheating.
Dismissal Order.
105. The accused has strongly objected to his dismissal order being proved by PW15. His contention is that the dismissal order, passed in Departmental Proceedings, has no relevance to the criminal case and has been produced in this case only as an attempt to prejudice the mind of the court in a manner which is barred by section 54 of the Evidence Act. However, it is clear in the charge sheet itself that the fact of the dismissal of the accused from his service is relevant for the purpose of showing that no sanction under section 19 of the Prevention of Corruption Act, was required to be obtained to prosecute the accused. No exception can, therefore, be taken to proving the dismissal order by PW15.
Nonproduction of Previous Inspection Report
106. I do find some weight in the contention of the accused that previous inspection and audit reports should have bee produced by the prosecution. It is the case of the prosecution itself that inspection report of PW3, wherein a number of irregularities were reported, became the basis of disciplinary proceedings against the accused as well as of his prosecution CBI vs. A. Govind Raju 58 of 72 pages : 59 : CBI case No. 25/11 in the present case. The report if produced, would have spelled out exact findings of an expert banker's investigation with regard to gravity of the abuse of position in flouting the relevant rules. The accused's contention that report would have somehow proved him innocent is, of course, is not plausible. This is also the reason that he himself did not get the reports summoned during the course of trial or even when he filed the application under section 91Cr.PC.
107. However, transparency is the hallmark of a fair and genuine investigation which, I am constrained to observe, has not been observed by the investigating agency. Absence of banking expert's report leaves one with a lingering feeling that something has been concealed or that there was more to it than what has been presented. Whether the CBI has, as contented by the accused, deliberately shielded the influential NRIs or some other bank officials, cannot be commented upon with authenticity on the basis of the facts, presented and proved. What is certain, however, is that the much trumpeted fairness of investigations conducted by the CBI, has been compromised in this case.
108. Be that as it may, the absence of previous reports does not, in CBI vs. A. Govind Raju 59 of 72 pages : 60 : CBI case No. 25/11 any way, dilute the complicity of the accused, to the extent, it has been proved on record, through evidence led during the trial.
Conclusion
109. In view of the above discussion, I hold that :
(i) the accused A. Govind Raju is guilty of criminal misconduct in his act of dishonestly and fraudulently misappropriating the amount of Rs.4 lakhs entrusted to him by Shri J. S. Sandha, in his capacity as a public servant, an offence punishable under section 13(2) read with section 13(1)(c) of the Prevention of Corruption Act, 1988.
(ii) The accused is guilty of criminal misconduct in obtaining pecuniary advantage of Rs.50,000/ for himself by sanctioning and then withdrawing the said amount without the knowledge of Karamjit Singh and thereby, grossly abusing his official position as a public servant. He has, therefore, committed an offence punishable under section 13(2) read with section 13(1)
(d) of the Prevention of Corruption Act, 1988.
(iii) The Accused is also guilty of criminal misconduct by grossly abusing his official position as a public servant in granting VSL loans without taking back the FDRs duly discharged and pledged towards the loan amount from the CBI vs. A. Govind Raju 60 of 72 pages : 61 : CBI case No. 25/11 borrowers and by not endorsing the bank lien on the same, which has resulted in pecuniary advantage to the borrowers, which is an offence punishable under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988.
(iv) The offences under sections 420,467,468,471 of the Indian Penal Code have not been proved against the accused.
110. Accordingly, the accused A. Govind Raju is, hereby, convicted for the offences punishable under sections 13(1)(c) & 13(1)(d) of the Prevention of Corruption Act, 1988 and is acquitted on the charges for the offence under section 420,467,468,471 of the Indian Penal Code.
111. Let the accused be heard on the point of sentence on 30.5.2014.
Announced in the Open Court (Alok Agarwal) th on this 28 day of May, 2014. Special Judge (PC Act) CBI District Courts(SW), Dwarka New Delhi CBI vs. A. Govind Raju 61 of 72 pages : 62 : CBI case No. 25/11 IN THE COURT OF SHRI ALOK AGARWAL SPECIAL JUDGE, (PC ACT) (CBI), DISTRICT COURTS(SW), DWARKA, NEW DELHI CBI case No. : 25/11 RC No. : 1(A)/2000/ACUIV/SPE/CBI In the matter of : CBI versus 1. A. Govind Raju, S/o Late T.K. Anantnarayana, R/o 270, GH1417, Paschim Vihar, New Delhi.
Present Address :
Flat no. 25, 47/41, Punjabi Bagh West, New Delhi110036.
Permanent Address :005 Building No.2,
Shanti Park, 9th Block, Jaya Nagar, Bangalore560067.
............. Convict Date of Institution : 26.07.2003 Date on which Judgment Pronounced : 28.05.2014 Date on which Order on Sentence announced : 3.06.2014.
O R D E R O N S E N T E N C E
1. A public servant, by virtue of his office, is a repository of public faith and often, of public money. Certain powers are allowed to him for the purpose of effective discharge of his CBI vs. A. Govind Raju 62 of 72 pages : 63 : CBI case No. 25/11 duties. Any power vested in a public servant corresponds to some rights of individuals or of the society as a whole. The power, therefore, can be legitimately utilized only for a purpose, which enhances the faith of the stakeholders. Any exercise of power or discretion only for personal gain or in a manner detrimental to the rights of the stakeholders or to the health of the economy of the country is an outright betrayal of the public confidence.
2. A bank manager deals with the huge amounts of money belonging to the depositors. Certain discretions and other powers are entrusted to him only for the purpose that he helps channelize the funds in a manner beneficial to the public at large and conducive to the economic growth of the country.
3. The convict A. Govind Raju however, while working as Senior Manager, Incharge of Subroto Park Branch of Canara Bank from 16.6.1995 to 29.5.1999, deviated from the path of absolute probity in dealing with the deposits in his branch.
Vide my judgment dated 28.5.2014, he has been convicted under section 13 (1)(c) and 13 (1)(d) of the Prevention of Corruption Act, 1988 for his acts of criminal misconduct by CBI vs. A. Govind Raju 63 of 72 pages : 64 : CBI case No. 25/11 grossly abusing his official position in :
(i) dishonestly and fraudulently misappropriating an amount of Rs.Four Lakhs, belonging to one of the borrowers, entrusted to him by not depositing it in his loan account.
(ii) withdrawing an amount of Rs.50,000/ without the knowledge of the concerned depositor.
(iii) in granting loans against the FDRs without taking back the FDR duly discharged and pledged to the loan amount, which led to the depositors claiming the full maturity amount of FDRs in spite of the outstanding loans against the said FDR.
4. I have heard Ld. Special Public Prosecutor for CBI and Ld. Defence Counsel on the point of sentence.
5. The Ld. Special Public Prosecutor has argued that the maximum prescribed substantive punishment with fine be handed over to the convict, so that enough and clear message goes to one and all and especially to the potential offenders, who are in the waiting to commit such like criminal misconduct so that the punishment act as a deterrence and the intent of the legislature is fulfilled.
CBI vs. A. Govind Raju 64 of 72 pages : 65 : CBI case No. 25/11
6. The convict A. Govind Raju, on the other hand, has submitted that he is a senior citizen of 62 years old and is afflicted with various ailments like - Low Blood Pressure, etc. His wife, who is 57 years of age, is also suffering from many diseases like diabetes, asthma, etc. and is fully dependent on him. He has two children, who are married and are not living with them, thus, nobody is there in the family to look after his old wife. He has further submitted that he is a first time offender and has not been convicted previously in any case. He has, further prayed that he has already faced agony of 14 years long trial, which he regularly attended from Bangalore. The convict has, thus, prayed that a lenient view may be taken.
7. The Ld. counsel has also cited judgments of the Hon'ble Supreme Court in T. M. Joseph Vs. State of Kerala AIR 1992 SC 1922, Makhan Singh and another Vs. State of Punjab AIR 1994 SC 266 and R. Venkatakrishanan Vs. Central Bureau of Investigation AIR 2010 SC 1812, wherein the final sentences passed were below the minimum sentence as prescribed under the Prevention of Corruption Act, 1988. He also filed copy of judgment of another trial court in Delhi itself, wherein for a convict for some offences, the substantive sentence pronouncement by the Ld. Crial Court is RI of three CBI vs. A. Govind Raju 65 of 72 pages : 66 : CBI case No. 25/11 months only.
8. The larger objective of any penal Statute in defining an act detrimental to the society as an offence and, prescribing punishment for the same is to protect the interest of the society by ensuring that such acts do not recur. It often takes a long and complicated trial before a finding that the defined act has been committed by the person concerned is returned. The deterrence part of the larger objective is to be addressed in the process of sentencing. Usually, a wide discretion is allowed to the Courts by the Penal Statutes in order to factor in, the gravity of offence, the depravity of mind as reflected in the motive, magnitude of damage caused etc. on one hand and personal, social and economic circumstances of the convict, desirability of therapeutic treatment, etc. on the other hand.
9. In State of Punjab Vs. Rakesh Kumar, AIR 2009 Supreme Court 391, Hon'ble Supreme Court has observed :
"Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in CBI vs. A. Govind Raju 66 of 72 pages : 67 : CBI case No. 25/11 each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration."
10. In cases of corruption by a public servant the view of the Hon'ble Supreme Court has been quite consistent. In Dr. Subramanyam Swami Vs. Dr. Manmohan Singh, 2012, AIR (SC) page 1185, the Hon'ble Supreme Court has held as follows :
"........The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anticorruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it. ......"
11. It has been held in case reported as Narendra Champak Lal Trivedi Vs. State of Gujrat, 2012 (7) SCC page 80 that :
CBI vs. A. Govind Raju 67 of 72 pages : 68 : CBI case No. 25/11 "Corruption at any level does not deserve either sympathy or leniency."
12. It was observed by the Hon'ble Supreme Court in the case reported as State of J & K Vs. Vinay Nanda, AIR 2001 SC P 611, that :
"Corruption at any level, by any person, of any magnitude, is condemnable, which cannot be ignored by the Judicial Courts, when proved. No leniency is required to be shown in proved cases under the Prevention of Corruption Act which itself treats the offences under it of a special nature to be treated differently than the general penal offences. The convicts of the offences under the Act are to be dealt with heavy hand and deterrent rod. No populous or sympathetic approach is needed in such cases."
13. It was held by the Hon'ble Supreme Court in the case reported as State of M. P. Vs. Shambhu Dayal Nagar, (2006) 8 SCC P 693, that :
"Corruption by public servant has become gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. Large scale corruption retards the nation building activities and everyone has to suffer on that count."
14. Section 13(2) of the Prevention of Corruption Act, 1988, CBI vs. A. Govind Raju 68 of 72 pages : 69 : CBI case No. 25/11 provides for a punishment which shall not be less than one year but which may be extended to seven years alongwith fine, for a criminal misconduct as defined under section 13(1) of the Prevention of Corruption Act, 1988. The need of the society to be free of corruption in public offences as depicted in the above cotted judgments, Hon'ble Supreme Court calls for the sentences announced by the Courts to be reasonably deterrent. In the case of Siddarama and Ors. Vs. State of Karnataka, 2006 IV AD (Cri.) (SC) 78, it was held that:
"undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society can no longer endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."
15. The personal circumstances, as pleaded by the convict, are normal for a person of his age to be in. I have no hesitation in saying that none of these circumstances provide for any special reason to be unduely soft and lenient.
16. As regards the delay in completion of trial, it has been observed by the Hon'ble High Court of Delhi in Jai Bhagwan CBI vs. A. Govind Raju 69 of 72 pages : 70 : CBI case No. 25/11 Vs. State (NCT of Delhi), 2008 150 DLT 46 (Delhi) and Ravinder Kumar Arora Vs. CBI Manu/DE/8816/2007 (Delhi) , that :
"It is a normal thing that 'trial' of the person is considered a period of 'agony' undergone by him. But we tend to forget the agony of the society and the complainant who dared lodge the complaint. The entire purpose of the legislature of sentencing the offenders stands defeated and that is the one reason that wages of corruption are considered more attractive in this country. The person caught is not always a firsttimer corrupt. He may have been indulging into corrupt activities / practices for a long number of years. It is to his advantage that the trial is prolonged. He spends a fraction of amount, earned by corrupt practices on litigation and professionals to see that ultimately he makes Criminal Justice System a laughing stock. In this process, the entire legislative purpose of punishing a corrupt stands defeated."
17. All the aggravating and mitigating circumstances as pointed out by the parties, have to be considered in the light of the above settled position of law. In the case on hand, the convict is proved to have flouted all the rules & procedures with impunity and to have conducted the affairs of the public CBI vs. A. Govind Raju 70 of 72 pages : 71 : CBI case No. 25/11 sector bank according to his wishes for pecuniary advantage to himself and in furtherance of individual interest. Due to vigilant conduct of his successor, any loss to the bank has, however, been ultimately avoided. After considering all the aspects of the matter, I am of the view that following sentences shall be appropriate and shall meet the ends of justice:
(i) Convict, A. Govind Raju, is hereby sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. One lakh only, and in default, he shall further undergo simple imprisonment for a period of three months, for the offence punishable under section 13 (2) read with section 13 (1) (c) of the Prevention of Corruption Act, 1988.
(ii) For the offence punishable under section 13 (2) read with section 13 (1)(d) of the Prevention of Corruption Act, 1988, convict A. Govind Raju is hereby sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. One lakh only, and in default, he shall further undergo simple imprisonment for a period of three months.
18. The aforesaid substantive sentences shall run concurrently.
Any period of imprisonment undergone by the convict, during CBI vs. A. Govind Raju 71 of 72 pages : 72 : CBI case No. 25/11 the pendancy of investigation or trial of this court, shall be set off against the above substantive sentences.
19. A copy of the judgment and order on sentence be given to the convict, free of cost, forthwith.
20. File be consigned to Record Room.
Announced in the Open Court (Alok Agarwal) rd on this 3 day of June, 2014. Special Judge (PC Act) CBI District Courts(SW), Dwarka New Delhi CBI vs. A. Govind Raju 72 of 72 pages